UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-Q

(Mark One)

X

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES

 

EXCHANGE ACT OF 1934

 

For the quarterly period ended June 30, 2010

 

OR

 

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES

 

EXCHANGE ACT OF 1934

 

For the transition period from __________ to __________

 

Exact name of registrants as specified

I.R.S. Employer

Commission File

in their charters, address of principal

Identification

Number

executive offices, zip code and telephone number

Number

1-14465

IDACORP, Inc.

82-0505802

1-3198

Idaho Power Company

82-0130980

 

1221 W. Idaho Street

 

 

Boise, ID  83702-5627

 

 

(208) 388-2200

 

 

State of Incorporation:  Idaho

 

 

Websites:  www.idacorpinc.com,  www.idahopower.com

 

 

None

 

Former name, former address and former fiscal year, if changed since last report.

 

Indicate by check mark whether the registrants (1) have filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrants were required to file such reports), and (2) have been subject to such filing requirements for the past 90 days.  Yes   X     No  ___

Indicate by check mark whether the registrants have submitted electronically and posted on their corporate Web sites, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrants were required to submit and post such files).  IDACORP, Inc.: Yes   X     No  ___  Idaho Power Company: Yes           No  ___

Indicate by check mark whether the registrants are large accelerated filers, accelerated filers, non-accelerated filers, or smaller reporting companies.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act (check one):

IDACORP, Inc.:

 

Large accelerated filer

X

Accelerated filer

 

Non-accelerated  filer

 

Smaller reporting company

 

Idaho Power Company:

 

Large accelerated filer

 

Accelerated filer

 

Non-accelerated  filer

X

Smaller reporting company

 

 

Indicate by check mark whether the registrants are shell companies (as defined in Rule 12b-2 of the Exchange Act).
Yes ___  No    X  

Number of shares of common stock outstanding as of July 31, 2010:

IDACORP, Inc.:

48,184,956

Idaho Power Company:

39,150,812, all held by IDACORP, Inc.

 

This combined Form 10-Q represents separate filings by IDACORP, Inc. and Idaho Power Company.  Information contained herein relating to an individual registrant is filed by that registrant on its own behalf.  Idaho Power Company makes no representations as to the information relating to IDACORP, Inc.’s other operations.

Idaho Power Company meets the conditions set forth in General Instructions H(1)(a) and (b) of Form 10-Q and is therefore filing this Form with the reduced disclosure format.

 


 

 

 

COMMONLY USED TERMS

 

ADITC

-

Accumulated Deferred Investment Tax Credits

AFUDC

-

Allowance for Funds Used During Construction

APCU

-

Annual Power Cost Update

BCC

-

Bridger Coal Company, a joint venture of IERCo

Cal ISO

-

California Independent System Operator

CalPX

-

California Power Exchange

CAMP

-

Comprehensive Aquifer Management Plan

CO 2

-

Carbon Dioxide

EIS

-

Environmental Impact Statement

EPA

-

Environmental Protection Agency

EPS

-

Earnings per share

ESA

-

Endangered Species Act

ESPA

-

Eastern Snake Plain Aquifer

FCA

-

Fixed Cost Adjustment mechanism

FERC

-

Federal Energy Regulatory Commission

GHG

-

Greenhouse gas

HCC

-

Hells Canyon Complex

Ida-West

-

Ida-West Energy, a subsidiary of IDACORP, Inc.

IE

-

IDACORP Energy, a subsidiary of IDACORP, Inc.

IERCo

-

Idaho Energy Resources Co., a subsidiary of Idaho Power Company

IFS

-

IDACORP Financial Services, a subsidiary of IDACORP, Inc.

IPUC

-

Idaho Public Utilities Commission

IRP

-

Integrated Resource Plan

IRS

-

Internal Revenue Service

IWRB

-

Idaho Water Resource Board

kW

-

Kilowatt

MD&A

-

Management’s Discussion and Analysis of Financial Condition and Results of Operations

MW

-

Megawatt

MWh

-

Megawatt-hour

NOx

-

Nitrogen Oxide

O&M

-

Operations and Maintenance

OATT

-

Open Access Transmission Tariff

OPUC

-

Oregon Public Utility Commission

PCA

-

Power Cost Adjustment

PCAM

-

Power Cost Adjustment Mechanism

PURPA

-

Public Utility Regulatory Policies Act of 1978

REC

-

Renewable Energy Certificate

RH BART

-

Regional Haze - Best Available Retrofit Technology

RPS

-

Renewable Portfolio Standards

SEC

-

Securities and Exchange Commission

SO 2

-

Sulfur Dioxide

SRBA

-

Snake River Basin Adjudication

Valmy

-

North Valmy Steam Electric Generating Plant

VIEs

-

Variable Interest Entities

WECC

-

Western Electricity Coordinating Council

 

2

 


 

 

 

TABLE OF CONTENTS

Page

Part I.  Financial Information:

 

 

 

 

Item 1.  Financial Statements (unaudited)

 

 

 

IDACORP, Inc.:

 

 

 

 

Condensed Consolidated Statements of Income

4

 

 

 

Condensed Consolidated Balance Sheets

5-6

 

 

 

Condensed Consolidated Statements of Cash Flows

7

 

 

 

Condensed Consolidated Statements of Comprehensive Income

8

 

 

 

Condensed Consolidated Statements of Equity

9

 

 

Idaho Power Company:

 

 

 

 

Condensed Consolidated Statements of Income

10

 

 

 

Condensed Consolidated Balance Sheets

11-12

 

 

 

Condensed Consolidated Statements of Capitalization

13

 

 

 

Condensed Consolidated Statements of Cash Flows

14

 

 

 

Condensed Consolidated Statements of Comprehensive Income

15

 

 

Notes to the Condensed Consolidated Financial Statements

16-36

 

 

Reports of Independent Registered Public Accounting Firm

37-38

 

 

 

 

 

Item 2.  Management’s Discussion and Analysis of Financial Condition and Results of

 

 

 

 

Operations

39-74

 

 

 

 

 

 

Item 3.  Quantitative and Qualitative Disclosures About Market Risk

75

 

 

 

 

 

 

Item 4.  Controls and Procedures

76

 

 

 

 

 

Part II.  Other Information:

 

 

 

 

 

Item 1.  Legal Proceedings

76

 

 

 

 

Item 1A.  Risk Factors

76-78

 

 

 

Item 2.  Unregistered Sales of Equity Securities and Use of Proceeds

78-79

 

 

Item 6.  Exhibits

80

 

 

 

Signatures

81

 

 

Exhibit Index

82

 

 

 

SAFE HARBOR STATEMENT

 

This report on Form 10-Q contains “forward-looking statements” intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995.  Forward-looking statements should be read with the cautionary statements and important factors included in this Form 10-Q at Part I, Item 2- “MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS - FORWARD-LOOKING INFORMATION,” and Part II, Item 1A – “RISK FACTORS,” and in IDACORP Inc.’s and Idaho Power Company’s Annual Report on Form 10-K for the year ended December 31, 2009, at Part I, Item 1A- “RISK FACTORS.”  Forward-looking statements are all statements other than statements of historical fact, including, without limitation, those that are identified by the use of the words “anticipates,” “believes,” “estimates,” “expects,” “intends,” “plans,” “predicts,” “projects,” “may result,” “may continue,” or similar expressions.
 

3

 


 


 

 

 

 

PART I – FINANCIAL INFORMATION
Item 1.  Financial Statements
IDACORP, Inc.
Condensed Consolidated Statements of Income
(unaudited)

Three months ended

Six months ended

June 30,

June 30,

 

 2010

2009

 2010

2009

(thousands of dollars except for per share amounts)

Operating Revenues:

Electric utility:

General business

 $

204,277 

 $

198,215 

 $

408,022 

 $

386,142 

Off-system sales

17,769 

26,667 

52,175 

55,198 

Other revenues

18,744 

17,636 

33,053 

29,207 

Total electric utility revenues

240,790 

242,518 

493,250 

470,547 

Other

963 

1,116 

1,466 

1,661 

Total operating revenues

241,753 

243,634 

494,716 

472,208 

Operating Expenses:

Electric utility:

Purchased power

30,349 

26,867 

51,523 

60,568 

Fuel expense

27,558 

24,475 

64,744 

63,608 

Power cost adjustment

28,071 

26,762 

76,395 

42,621 

Other operations and maintenance

75,125 

74,593 

147,219 

143,133 

Energy efficiency programs

8,765 

8,673 

13,799 

12,731 

Depreciation

28,726 

26,832 

57,309 

52,795 

Taxes other than income taxes

5,805 

5,088 

11,485 

10,150 

Total electric utility expenses

204,399 

193,290 

422,474 

385,606 

Other expense

749 

872 

1,590 

1,495 

Total operating expenses

205,148 

194,162 

424,064 

387,101 

Operating Income

36,605 

49,472 

70,652 

85,107 

Other Income, Net

3,012 

4,058 

7,493 

10,979 

Earnings (Losses) of Unconsolidated Equity-

Method Investments

380 

(2,620)

(1,998)

(2,218)

Interest Expense:

Interest on long-term debt

19,427 

18,282 

38,868 

34,922 

Other interest expense, net of AFUDC

(2,038)

(117)

(2,491)

719 

Total interest expense

17,389 

18,165 

36,377 

35,641 

Income Before Income Taxes

22,608 

32,745 

39,770 

58,227 

Income Tax (Benefit) Expense

(16,629)

5,175 

(15,324)

11,970 

Net Income

39,237 

27,570 

55,094 

46,257 

Adjustment for (income) loss attributable to

noncontrolling interests

(28)

(95)

178 

102 

Net Income Attributable to IDACORP, Inc.

 $

39,209 

 $

27,475 

 $

55,272 

 $

46,359 

Weighted Average Common Shares Outstanding-

Basic (000’s)

47,888 

46,958 

47,831 

46,895 

Weighted Average Common Shares Outstanding-

Diluted (000’s)

48,048 

46,977 

47,966 

46,927 

Earnings Per Share of Common Stock:

Earnings Attributable to IDACORP, Inc.-Basic

 $

0.82 

 $

0.59 

 $

1.16 

 $

0.99 

Earnings Attributable to IDACORP, Inc.-Diluted

 $

0.82 

 $

0.58 

 $

1.15 

 $

0.99 

Dividends Declared Per Share of Common Stock

 $

0.30 

 $

0.30 

 $

0.60 

 $

0.60 

 The accompanying notes are an integral part of these statements.

4

 


 


 

 

 

 

 

IDACORP, Inc.
Condensed Consolidated Balance Sheets
(unaudited)

June 30,

December 31,

 

2010

2009

Assets

(thousands of dollars)

Current Assets:

Cash and cash equivalents

 $

29,488 

 $

52,987 

Receivables:

Customer (net of allowance of $1,311 and $1,805, respectively)

64,216 

74,987 

Other (net of allowance of $1,457 and $1,073, respectively)

23,171 

11,922 

Taxes receivable

1,874 

Accrued unbilled revenues

51,399 

51,272 

Materials and supplies (at average cost)

47,436 

48,054 

Fuel stock (at average cost)

29,206 

25,634 

Prepayments

10,340 

11,111 

Deferred income taxes

31,817 

31,773 

Other

5,917 

2,666 

Total current assets

294,864 

310,406 

 

Investments

197,657 

195,298 

 

Property, Plant and Equipment:

Utility plant in service

4,212,394 

4,160,178 

Accumulated provision for depreciation

(1,586,118)

(1,558,538)

Utility plant in service- net

2,626,276 

2,601,640 

Construction work in progress

363,982 

289,188 

Utility plant held for future use

7,106 

7,151 

Other property, net of accumulated depreciation

18,807 

19,029 

Property, plant and equipment- net

3,016,171 

2,917,008 

 

Other Assets:

American Falls and Milner water rights

22,641 

24,226 

Company-owned life insurance

27,079 

26,654 

Regulatory assets

676,820 

720,401 

Long-term receivables (net of allowance of $1,861 and $2,157, respectively)

3,993 

4,217 

Other

41,562 

40,517 

Total other assets

772,095 

816,015 

Total

 $

4,280,787 

 $

4,238,727 

 

 The accompanying notes are an integral part of these statements.

 

5

 


 


 

 

 

 

IDACORP, Inc.
Condensed Consolidated Balance Sheets
(unaudited)

June 30,

December 31,

 

2010

2009

Liabilities and Equity

(thousands of dollars)

Current Liabilities:

Current maturities of long-term debt

 $

129,800 

 $

9,340 

Notes payable

17,500 

53,750 

Accounts payable

78,075 

83,818 

Taxes accrued

21,456 

10,184 

Interest accrued

21,821 

20,056 

Other

70,323 

41,081 

Total current liabilities

338,975 

218,229 

 

Other Liabilities:

Deferred income taxes

559,862 

574,450 

Regulatory liabilities

301,568 

287,780 

Other

357,740 

346,994 

Total other liabilities

1,219,170 

1,209,224 

 

Long-Term Debt

1,288,802 

1,409,730 

 

Commitments and Contingencies

Equity:

IDACORP, Inc. shareholders’ equity:

Common stock, no par value (120,000,000 shares authorized;

48,164,439 and 47,925,882 shares issued, respectively)

762,903 

756,475 

Retained earnings

675,601 

649,180 

Accumulated other comprehensive loss

(8,678)

(8,267)

Treasury stock (7,365 and 29,191 shares at cost, respectively)

(17)

(53)

Total IDACORP, Inc. shareholders’ equity

1,429,809 

1,397,335 

Noncontrolling interest

4,031 

4,209 

Total equity

1,433,840 

1,401,544 

Total

 $

4,280,787 

 $

4,238,727 

 The accompanying notes are an integral part of these statements.

 

6

 


 


 

 

 

 

IDACORP, Inc.
Condensed Consolidated Statements of Cash Flows
(unaudited)

 

Six months ended

 

June 30,

 

2010

2009

  Operating Activities:

(thousands of dollars)

Net income

 $

55,094 

 $

46,257 

Adjustments to reconcile net income to net cash provided by

 

 

operating activities:

 

 

Depreciation and amortization

61,023 

55,434 

Deferred income taxes and investment tax credits

(19,726)

7,548 

Changes in regulatory assets and liabilities

78,974 

38,358 

Non-cash pension expense

2,952 

2,209 

Losses of unconsolidated equity-method investments

1,998 

2,218 

Distributions from unconsolidated equity-method investments

7,710 

Allowance for other funds used during construction

(8,020)

(2,498)

Other non-cash adjustments to net income, net

(148)

1,728 

Change in:

 

 

Accounts receivable and prepayments

6,613 

(8,869)

Accounts payable and other accrued liabilities

(8,495)

(28,293)

Taxes accrued/receivable

9,279 

18,155 

Other current assets

(3,081)

(11,940)

Other current liabilities

18,215 

(1,464)

Other assets

(2,512)

(1,831)

Other liabilities

(4,951)

(14,090)

Net cash provided by operating activities

187,215 

110,632 

Investing Activities:

 

 

Additions to property, plant and equipment

(166,687)

(100,271)

Proceeds from the sale of utility assets

19,230 

Proceeds from the sale of non-utility assets

2,250 

Investments in affordable housing

(6,147)

(6,174)

Proceeds from the sale of emission allowances and renewable energy certificates

3,497 

2,341 

Investments in unconsolidated affiliates

(2,020)

Proceeds from the sale of available-for-sale securities

8,965 

Other

3,468 

(3,319)

Net cash used in investing activities

(148,659)

(96,208)

Financing Activities:

 

 

Issuance of long-term debt

100,000 

Retirement of long-term debt

(1,064)

(8,735)

Dividends on common stock

(28,830)

(28,230)

Net change in short-term borrowings

(36,250)

(72,151)

Issuance of common stock

5,299 

4,927 

Acquisition of treasury stock

(846)

(1,408)

Other

(364)

(1,653)

Net cash used in financing activities

(62,055)

(7,250)

Net (decrease) increase in cash and cash equivalents

(23,499)

7,174 

Cash and cash equivalents at beginning of the period

52,987 

8,828 

Cash and cash equivalents at end of the period

 $

29,488 

 $

16,002 

Supplemental Disclosure of Cash Flow Information:

 

 

Cash (received) paid during the period for:

 

 

Income taxes

 $

(3,387)

 $

(11,785)

Interest (net of amount capitalized)

 $

33,662 

 $

32,956 

Non-cash investing activities

 

 

Additions to property, plant and equipment in accounts payable

 $

21,435 

 $

5,578 

Investments in affordable housing

 $

3,168 

 $

6,000 

The accompanying notes are an integral part of these statements.

7

 


 


 

 

 

 

 

IDACORP, Inc.
Condensed Consolidated Statements of Comprehensive Income
(unaudited)

Three months ended

June 30,

 

2010

2009

 (thousands of dollars)

Net Income

 $

39,237 

 $

27,570 

Other Comprehensive Income (Loss):

Net unrealized holding (losses) gains arising during the period,

net of tax of ($758) and $734

(1,181)

1,143 

Unfunded pension liability adjustment, net of tax

of $114 and $87

177 

136 

Total Comprehensive Income

38,233 

28,849 

Comprehensive income attributable to noncontrolling interests

(28)

(95)

Comprehensive Income Attributable to IDACORP, Inc.

 $

38,205 

 $

28,754 

The accompanying notes are an integral part of these statements.

 

 

 

IDACORP, Inc.
Condensed Consolidated Statements of Comprehensive Income
(unaudited)

Six months ended

June 30,

 

2010

2009

(thousands of dollars)

Net Income

 $

55,094 

 $

46,257 

Other Comprehensive Income (Loss):

Net unrealized holding (losses) gains arising during the period,

net of tax of ($492) and $164

(765)

256 

Unfunded pension liability adjustment, net of tax

of $227 and $174

354 

272 

Total Comprehensive Income

54,683 

46,785 

Comprehensive loss attributable to noncontrolling interests

178 

102 

Comprehensive Income Attributable to IDACORP, Inc.

 $

54,861 

 $

46,887 

The accompanying notes are an integral part of these statements.

 

8

 


 


 

 

 

 

IDACORP, Inc.
Condensed Consolidated Statements of Equity
(unaudited)

Six months ended

June 30,

 

2010

2009

 

 (thousands of dollars)

Common Stock

Balance at beginning of period

 $

756,475 

 $

729,576 

Issued

5,299 

4,927 

Other

1,129 

377 

Balance at end of period

762,903 

734,880 

 

 

Retained Earnings

Balance at beginning of period

649,180 

581,605 

Net income attributable to IDACORP, Inc.

55,272 

46,359 

Common stock dividends ($0.60 per share)

(28,851)

(28,229)

Balance at end of period

675,601 

599,735 

 

 

Accumulated Other Comprehensive Income (Loss)

Balance at beginning of period

(8,267)

(8,707)

Unrealized (loss) gain on securities (net of tax)

(765)

256 

Unfunded pension liability adjustment (net of tax)

354 

272 

Balance at end of period

(8,678)

(8,179)

 

 

Treasury Stock

Balance at beginning of period

(53)

(37)

Issued

882 

1,424 

Acquired

(846)

(1,408)

Balance at end of period

(17)

(21)

Total IDACORP, Inc. shareholders’ equity at end of period

1,429,809 

1,326,415 

 

 

Noncontrolling Interests

Balance at beginning of period

4,209 

4,434 

Net loss attributed to noncontrolling interest

(178)

(102)

Other

(250)

Balance at end of period

4,031 

4,082 

Total equity at end of period

 $

1,433,840 

 $

1,330,497 

The accompanying notes are an integral part of these statements.

 

9

 


 


 

 

 

 

Idaho Power Company
Condensed Consolidated Statements of Income
(unaudited)

Three months ended

Six months ended

June 30,

June 30,

 

 2010

2009

 2010

2009

(thousands of dollars)

Operating Revenues:

General business

 $

204,277 

 $

198,215 

 $

408,022 

 $

386,142 

Off-system sales

17,769 

26,667 

52,175 

55,198 

Other revenues

18,744 

17,636 

33,053 

29,207 

Total operating revenues

240,790 

242,518 

493,250 

470,547 

Operating Expenses:

Operation:

Purchased power

30,349 

26,867 

51,523 

60,568 

Fuel expense

27,558 

24,475 

64,744 

63,608 

Power cost adjustment

28,071 

26,762 

76,395 

42,621 

Other operations and maintenance

75,125 

74,593 

147,219 

143,133 

Energy efficiency programs

8,765 

8,673 

13,799 

12,731 

Depreciation

28,726 

26,832 

57,309 

52,795 

Taxes other than income taxes

5,805 

5,088 

11,485 

10,150 

Total operating expenses

204,399 

193,290 

422,474 

385,606 

Income from Operations

36,391 

49,228 

70,776 

84,941 

Other Income (Expense):

Allowance for equity funds used during construction

4,362 

1,734 

8,020 

2,498 

Earnings (losses) of unconsolidated equity-method

investments

1,987 

(649)

2,335 

2,653 

Other (expense) income, net

(1,410)

1,648 

(1,171)

7,944 

Total other income

4,939 

2,733 

9,184 

13,095 

Interest Charges:

Interest on long-term debt

19,427 

18,268 

38,868 

34,835 

Other interest

1,178 

1,350 

2,031 

2,929 

Allowance for borrowed funds used during construction

(3,287)

(1,658)

(5,478)

(2,785)

Total interest charges

17,318 

17,960 

35,421 

34,979 

Income Before Income Taxes

24,012 

34,001 

44,539 

63,057 

Income Tax (Benefit) Expense

(14,816)

7,675 

(12,510)

17,447 

Net Income

 $

38,828 

 $

26,326 

 $

57,049 

 $

45,610 

 The accompanying notes are an integral part of these statements.

 

10

 


 


 

 

 

 

Idaho Power Company
Condensed Consolidated Balance Sheets
(unaudited)

June 30,

December 31,

 

2010

2009

Assets

(thousands of dollars)

Electric Plant:

In service (at original cost)

 $

4,212,394 

 $

4,160,178 

Accumulated provision for depreciation

(1,586,118)

(1,558,538)

In service- net

2,626,276 

2,601,640 

Construction work in progress

363,982 

289,188 

Held for future use

7,106 

7,151 

Electric plant- net

2,997,364 

2,897,979 

 

Investments and Other Property

108,921 

108,299 

 

Current Assets:

Cash and cash equivalents

25,118 

21,625 

Receivables:

Customer (net of allowance of $1,311 and $1,805, respectively)

64,216 

74,987 

Other (net of allowance of $202 and $185, respectively)

21,810 

10,463 

Taxes receivable

21,640 

3,585 

Accrued unbilled revenues

51,399 

51,272 

Materials and supplies (at average cost)

47,436 

48,054 

Fuel stock (at average cost)

29,206 

25,634 

Prepayments

10,141 

10,960 

Deferred income taxes

7,931 

7,887 

Other

5,409 

2,115 

Total current assets

284,306 

256,582 

Deferred Debits:

American Falls and Milner water rights

22,641 

24,226 

Company-owned life insurance

27,079 

26,654 

Regulatory assets

676,820 

720,401 

Other

40,384 

39,249 

Total deferred debits

766,924 

810,530 

Total

 $

4,157,515 

 $

4,073,390 

 The accompanying notes are an integral part of these statements.

11

 


 


 

 

 

 

Idaho Power Company
Condensed Consolidated Balance Sheets
(unaudited)

June 30,

December 31,

 

2010

2009

Capitalization and Liabilities

(thousands of dollars)

Capitalization:

Common stock equity:

Common stock, $2.50 par value (50,000,000 shares

authorized; 39,150,812 shares outstanding)

 $

97,877 

 $

97,877 

Premium on capital stock

648,758 

638,758 

Capital stock expense

(2,097)

(2,097)

Retained earnings

575,876 

547,695 

Accumulated other comprehensive loss

(8,678)

(8,267)

Total common stock equity

1,311,736 

1,273,966 

Long-term debt

1,288,802 

1,409,730 

Total capitalization

2,600,538 

2,683,696 

 

Current Liabilities:

Long-term debt due within one year

121,064 

1,064 

Accounts payable

77,564 

83,128 

Notes and accounts payable to related parties

1,473 

1,736 

Taxes accrued

9,366 

Interest accrued

21,821 

20,056 

Other

69,252 

40,002 

Total current liabilities

300,540 

145,986 

 

Deferred Credits:

Deferred income taxes

599,328 

611,749 

Regulatory liabilities

301,568 

287,780 

Other

355,541 

344,179 

Total deferred credits

1,256,437 

1,243,708 

 

Commitments and Contingencies

Total

 $

4,157,515 

 $

4,073,390 

 The accompanying notes are an integral part of these statements.

 

12

 


 


 

 

 

 

Idaho Power Company
Condensed Consolidated Statements of Capitalization
(unaudited)

June 30,

December 31,

 

2010

2009

(thousands of dollars)

Common Stock Equity:

Common stock

 $

97,877 

 $

97,877 

Premium on capital stock

648,758 

638,758 

Capital stock expense

(2,097)

(2,097)

Retained earnings

575,876 

547,695 

Accumulated other comprehensive loss

(8,678)

(8,267)

Total common stock equity

1,311,736 

1,273,966 

Long-Term Debt:

First mortgage bonds:

6.60% Series due 2011

120,000 

120,000 

4.75% Series due 2012

100,000 

100,000 

4.25% Series due 2013

70,000 

70,000 

6.025% Series due 2018

120,000 

120,000 

6.15% Series due 2019

100,000 

100,000 

4.50 % Series due 2020

130,000 

130,000 

6    % Series due 2032

100,000 

100,000 

5.50% Series due 2033

70,000 

70,000 

5.50% Series due 2034

50,000 

50,000 

5.875% Series due 2034

55,000 

55,000 

5.30% Series due 2035

60,000 

60,000 

6.30% Series due 2037

140,000 

140,000 

6.25% Series due 2037

100,000 

100,000 

Total first mortgage bonds

1,215,000 

1,215,000 

Amount due within one year

(120,000)

Net first mortgage bonds

1,095,000 

1,215,000 

Pollution control revenue bonds:

5.15% Series due 2024

49,800 

49,800 

5.25% Series due 2026

116,300 

116,300 

Variable Rate Series 2000 due 2027

4,360 

4,360 

Total pollution control revenue bonds

170,460 

170,460 

American Falls bond guarantee

19,885 

19,885 

Milner Dam note guarantee

7,446 

8,509 

Note guarantee due within one year

(1,064)

(1,064)

Unamortized premium/discount- net

(2,925)

(3,060)

Total long-term debt

1,288,802 

1,409,730 

Total Capitalization

 $

2,600,538 

 $

2,683,696 

 The accompanying notes are an integral part of these statements.

13

 


 


 

 

 

 

Idaho Power Company

Condensed Consolidated Statements of Cash Flows
(unaudited)

 

Six months ended

 

June 30,

 

2010

2009

 Operating Activities:

(thousands of dollars)

Net income

 $

57,049 

 $

45,610 

Adjustments to reconcile net income to net cash provided by

  

 

operating activities:

 

 

Depreciation and amortization

60,709 

55,030 

Deferred income taxes and investment tax credits

(17,559)

3,354 

Changes in regulatory assets and liabilities

78,974 

38,358 

Non-cash pension expense

2,952 

2,209 

Earnings of unconsolidated equity-method investments

(2,335)

(2,653)

Distributions from unconsolidated equity-method investments

7,460 

Allowance for other funds used during construction

(8,020)

(2,498)

Other non-cash adjustments to net income

(2,474)

736 

Change in:

 

 

Accounts receivables and prepayments

6,250 

(8,665)

Accounts payable

(8,315)

(29,800)

Taxes accrued/receivable

(8,791)

34,350 

Other current assets

(3,081)

(11,940)

Other current liabilities

18,211 

(1,234)

Other assets

(2,512)

(1,831)

Other liabilities

(4,309)

(14,094)

Net cash provided by operating activities

166,749 

114,392 

Investing Activities:

 

 

Additions to utility plant

(166,687)

(100,271)

Proceeds from the sale of utility assets

19,230 

Proceeds from the sale of non-utility assets

2,250 

Proceeds from the sale of emission allowances and renewable energy certificates

3,497 

2,341 

Investments in unconsolidated affiliates

(2,020)

Other

2,890 

(3,359)

Net cash used in investing activities

(143,090)

(99,039)

Financing Activities:

 

 

Issuance of long-term debt

100,000 

Retirement of long-term debt

(1,064)

(1,064)

Dividends on common stock

(28,869)

(28,376)

Net change in short term borrowings

(76,120)

Capital contribution from parent

10,000 

Other

(233)

(1,411)

Net cash used in financing activities

(20,166)

(6,971)

Net increase in cash and cash equivalents

3,493 

8,382 

Cash and cash equivalents at beginning of the period

21,625 

3,141 

Cash and cash equivalents at end of the period

 $

25,118 

 $

11,523 

Supplemental Disclosure of Cash Flow Information:

 

 

Cash paid (received) during the period for:

 

 

Income taxes

 $

15,335 

 $

(18,286)

Interest (net of amount capitalized)

 $

32,706 

 $

32,380 

Non-cash investing activities:

 

Additions to property, plant and equipment in accounts payable

 $

21,435 

 $

5,578 

The accompanying notes are an integral part of these statements.

14

 


 


 

 

 

 

Idaho Power Company
Condensed Consolidated Statements of Comprehensive Income
(unaudited)

Three months ended

June 30,

 

2010

2009

(thousands of dollars)

Net Income

 $

38,828 

 $

26,326 

Other Comprehensive Income (Loss):

Net unrealized holding (losses) gains arising during the period,

net of tax of ($758) and $734

(1,181)

1,143 

Unfunded pension liability adjustment, net of tax

of $114 and $87

177 

136 

Total Comprehensive Income

 $

37,824 

 $

27,605 

The accompanying notes are an integral part of these statements.

 

 

 

Idaho Power Company
Condensed Consolidated Statements of Comprehensive Income
(unaudited)

Six months ended

June 30,

 

2010

2009

(thousands of dollars)

Net Income

 $

57,049 

 $

45,610 

Other Comprehensive Income (Loss):

Net unrealized holding (losses) gains arising during the period,

net of tax of ($492) and $164

(765)

256 

Unfunded pension liability adjustment, net of tax

of $227 and $174

354 

272 

Total Comprehensive Income

 $

56,638 

 $

46,138 

The accompanying notes are an integral part of these statements.

 

 

15

 


 


 

 

 

 

IDACORP, INC. AND IDAHO POWER COMPANY

NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS

(unaudited)

 

1.  SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:

 

This Quarterly Report on Form 10-Q is a combined report of IDACORP, Inc. (IDACORP) and Idaho Power Company (Idaho Power).  Therefore, the Notes to the condensed consolidated financial statements apply to both IDACORP and Idaho Power.  However, Idaho Power makes no representation as to the information relating to IDACORP’s other operations.

Nature of Business

 

IDACORP is a holding company formed in 1998 whose principal operating subsidiary is Idaho Power.  IDACORP is subject to the provisions of the Public Utility Holding Company Act of 2005, which provides certain access to books and records to the Federal Energy Regulatory Commission (FERC) and state utility regulatory commissions and imposes certain record retention and reporting requirements on IDACORP.

Idaho Power is an electric utility with a service territory covering approximately 24,000 square miles in southern Idaho and eastern Oregon.  Idaho Power provided electric service to 490,470 general business customers as of June 30, 2010.  Idaho Power is regulated by the FERC and the state regulatory commissions of Idaho and Oregon.  Idaho Power is the parent of Idaho Energy Resources Co. (IERCo), a joint venturer in Bridger Coal Company (BCC), which mines and supplies coal to the Jim Bridger generating plant owned in part by Idaho Power.

IDACORP’s other subsidiaries include IDACORP Financial Services, Inc. (IFS), an investor in affordable housing and other real estate investments; Ida-West Energy Company (Ida-West), an operator of small hydroelectric generation projects that satisfy the requirements of the Public Utility Regulatory Policies Act of 1978 (PURPA); and IDACORP Energy (IE), a marketer of energy commodities, which wound down operations in 2003.

Principles of Consolidation

 

IDACORP’s and Idaho Power’s consolidated financial statements include the accounts of each company, the subsidiaries that the companies control, and any variable interest entities (VIEs) for which the companies are the primary beneficiaries.  All intercompany balances have been eliminated in consolidation.  Investments in subsidiaries that the companies do not control and investments in VIEs for which the companies are not the primary beneficiaries, but have the ability to exercise significant influence over operating and financial policies, are accounted for using the equity method of accounting.

In January 2010, IDACORP and Idaho Power adopted amendments to prior consolidation guidance.  The amendments affected the overall consolidation analysis of VIEs and required IDACORP and Idaho Power to reconsider their previous conclusions relating to the consolidation of VIEs, including (1) whether an entity is a VIE, (2) whether either IDACORP or Idaho Power are the VIE’s primary beneficiary, and (3) what type of financial statement disclosures are required.  The adoption of this guidance did not change the entities that IDACORP or Idaho Power consolidate.

The entities that IDACORP and Idaho Power consolidate consist primarily of the wholly-owned subsidiaries discussed above.  In addition, IDACORP consolidates one VIE, Marysville Hydro Partners (Marysville), which is a joint venture owned 50 percent by Ida-West and 50 percent by Environmental Energy Company (EEC).  Marysville has approximately $20 million of assets, primarily a hydroelectric plant, and approximately $16 million of intercompany long-term debt, which is eliminated in consolidation.  EEC has borrowed amounts from Ida-West to fund a portion of its required capital contributions to Marysville.  The loans are payable from EEC’s share of distributions and are secured by the stock of EEC and EEC’s interest in Marysville.  Ida-West is the primary beneficiary because the ownership of the intercompany note and the EEC note result in it controlling the entity.  Creditors of Marysville have no recourse to the general credit of IDACORP and there are no other arrangements that could require IDACORP to provide financial support to Marysville or expose IDACORP to losses.

16

 


 


Through IERCo, Idaho Power holds a variable interest in BCC, a VIE for which it is not the primary beneficiary.  IERCo is not the primary beneficiary because the power to direct the activities that most significantly impact the economic performance of BCC is shared with the joint venture partner.  IERCo’s carrying value is $88 million and its maximum exposure to loss at BCC is the carrying value, any additional future contributions to the mine, and the $63 million guarantee for reclamation costs at the mine that is discussed further in Note 8 – “Commitments.”

Through IFS, IDACORP also holds variable interests in VIEs for which it is not the primary beneficiary.  These VIEs are historic rehabilitation and affordable housing developments in which IFS holds limited partnership interests ranging from five to 99 percent.  As a limited partner, IFS does not control these entities and they are not consolidated.  These investments were acquired between 1996 and 2010.  IFS’s maximum exposure to loss in these developments is limited to its net carrying value, which was $79 million at June 30, 2010.

Financial Statements

 

In the opinion of IDACORP and Idaho Power, the accompanying unaudited condensed consolidated financial statements contain all adjustments necessary to present fairly their consolidated financial positions as of June 30, 2010, consolidated results of operations for the three and six months ended June 30, 2010, and 2009, and consolidated cash flows for the six months ended June 30, 2010, and 2009.  These adjustments are of a normal and recurring nature.  These financial statements do not contain the complete detail or footnote disclosure concerning accounting policies and other matters that would be included in full-year financial statements and should be read in conjunction with the audited consolidated financial statements included in IDACORP’s and Idaho Power’s Annual Report on Form 10-K for the year ended December 31, 2009.  The results of operations for the interim periods are not necessarily indicative of the results to be expected for the full year.

Use of Estimates

 

The preparation of condensed consolidated financial statements in accordance with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent liabilities, as of the date of the financial statements, and the reported amounts of revenues and expenses during the reporting period.  Actual results experienced could differ materially from those estimates.

Reclassifications

 

Certain prior year amounts have been reclassified to conform to the current year presentation.  The reclassifications did not impact IDACORP’s and Idaho Power’s net income or total equity, and include the following:

  • Third-party transmission expense was combined with purchased power in IDACORP and Idaho Power’s condensed consolidated statements of income as the balance of the third party transmission expense alone is immaterial;

  • Gain on sale of emission allowances was combined with other operations and maintenance in IDACORP and Idaho Power's condensed consolidated statements of income as the balance of gain on sale of emission allowances alone is immaterial;

  • Other operations and maintenance in the operating expenses section of Idaho Power’s condensed consolidated statements of income were combined to be consistent with presentation in IDACORP's condensed consolidated statements of income;

  • Allowance for uncollectible accounts was offset against associated accounts receivable and presented in a parenthetical notation in IDACORP and Idaho Power's condensed consolidated balance sheets;

  • Excess tax benefits from share-based payment arrangements was combined with other non-cash adjustments to net income in the operating section and with other in the financing section of IDACORP's condensed consolidated statements of cash flows; and

  • Amortization of affordable housing was removed from depreciation and amortization and combined with undistributed earnings of unconsolidated subsidiaries, the total of which was then separated into losses of unconsolidated equity-method investments and distributions from unconsolidated equity method investments in the operating section of IDACORP's condensed consolidated statements of cash flows.

17

 


 


New Accounting Pronouncements

 

In July 2010, the Financial Accounting Standards Board issued guidance that significantly expands the required disclosures concerning the credit quality of certain types of receivables and the allowance for credit losses.  This guidance is effective for IDACORP and Idaho Power as follows:  (1) disclosures concerning end-of-period information are effective for the December 31, 2010, financial statements; and (2) disclosures about activity occurring during a reporting period are effective beginning with the quarter ending March 31, 2011.  Because this guidance relates only to disclosures, it is not expected to have a material effect on IDACORP’s and Idaho Power’s consolidated financial statements.

2.  INCOME TAXES:

 

In accordance with interim reporting requirements, IDACORP and Idaho Power use an estimated annual effective tax rate for computing their provisions for income taxes.  An estimate of annual income tax expense (or benefit) is made each interim period using estimates for annual pre-tax income, income tax adjustments, and tax credits.  The estimated annual effective tax rates do not include discrete events such as tax law changes, examination settlements, or method changes.  Discrete events are recorded in the period in which they occur.

The estimated annual effective tax rate is applied to year-to-date pre-tax income to achieve income tax expense (or benefit) for the interim period consistent with the annual estimate.  In subsequent interim periods, income tax expense (or benefit) for the period is computed as the difference between the year-to-date amount reported for the previous interim period and the current period’s year-to-date amount.

An analysis of income tax expense for the three months ended June 30 is as follows (in thousands of dollars):

 

IDACORP

Idaho Power

 

2010

2009

2010

2009

Income tax provision

$

4,046 

$

5,175

$

5,859 

$

7,675

ADITC amortization reversal

 

4,512 

 

-

 

4,512 

 

-

Accounting method change

 

(25,187)

 

-

 

(25,187)

 

-

 

Income tax (benefit) expense

$

(16,629)

$

5,175

$

(14,816)

$

7,675

Effective tax rate

 

(73.6)%

 

15.8%

 

(61.7)%

 

22.6%

 

 

 

 

 

An analysis of income tax expense for the six months ended June 30 is as follows (in thousands of dollars):

 

IDACORP

Idaho Power

 

2010

2009

2010

2009

Income tax provision

$

8,960 

$

11,970

$

11,774 

$

17,447

Accounting method change

 

(25,187)

 

-

 

(25,187)

 

-

Medicare Part D subsidy

 

903 

 

-

 

903 

 

-

 

Income tax (benefit) expense

$

(15,324)

$

11,970

$

(12,510)

$

17,447

Effective tax rate

 

(38.4)%

 

20.5%

 

(28.1)%

 

27.7%

 

 

 

 

 

The decrease in the 2010 estimated annual effective tax rates as compared to the same periods of 2009 is primarily due to Idaho Power’s tax accounting method change for repair-related expenditures (discussed below), and lower pre-tax earnings at IDACORP and Idaho Power, partially offset by a charge related to the federal health care legislation enacted in the first quarter of 2010.  Regulatory flow-through tax adjustments at Idaho Power and tax credits at IFS for the six months ended June 30, 2010 were comparable to the same period in 2009.

Based on its current estimate of 2010 return on equity, Idaho Power does not expect to amortize any additional accumulated deferred investment tax credits (ADITC).  Accordingly, the $4.5 million of additional ADITC amortization recorded in the first quarter of 2010 was reversed in the second quarter of 2010.  For further information regarding ADITC amortization, see Note 3 – “Regulatory Matters - Idaho Settlement Agreement.”

 

18

 


 


Tax Accounting Method Change

 

In June 2010, Idaho Power completed its evaluation of a tax accounting method change for its 2009 tax year that would allow a current income tax deduction for repair-related expenditures on its utility assets that are currently capitalized for financial reporting and tax purposes.  Idaho Power intends to make this method change following the automatic consent procedures with the filing of IDACORP’s 2009 consolidated federal income tax return in September 2010.  For the three months ended June 30, 2010, Idaho Power recorded an estimated net tax benefit of $25.2 million related to the cumulative method change adjustment (tax years 1999 through 2009) and has included an annual deduction estimate in its 2010 income tax provision, which resulted in a $3.6 million net tax benefit.  Idaho Power’s prescribed regulatory accounting treatment requires immediate income recognition for temporary tax differences of this type.  A regulatory asset is established to reflect Idaho Power’s ability to recover increased income tax expense when such temporary differences reverse.  Idaho Power expects to recognize cash tax benefits associated with the method change by the end of 2010 through offsets to current estimated tax payments and direct tax refunds.

In conjunction with recording the estimated tax benefit for the method change, Idaho Power also increased its current liability for uncertain tax positions by $10.9 million.  If recognized, the $10.9 million balance of unrecognized tax benefits would affect the effective tax rate.  The tax method is currently being audited under IDACORP’s 2009 Compliance Assurance Process (CAP) examination (discussed below) and, on a national level, aspects of the method related to electric utility transmission and distribution property are the subject of an Internal Revenue Service (IRS) Industry Issue Resolution program.

Status of Audit Proceedings

 

In May 2009, IDACORP formally entered the IRS CAP program for its 2009 tax year.  The CAP program provides for IRS examination throughout the year.  The 2009 examination is expected to be completed in 2010.  In January 2010, IDACORP was accepted into CAP for its 2010 tax year.  IDACORP and Idaho Power are unable to predict the outcome of these examinations.

Specifically within the 2009 CAP examination, the IRS began its audit of Idaho Power’s current method of uniform capitalization.  In September 2009, the IRS issued Industry Director Directive #5 (IDD), which discusses the IRS’s compliance priorities and audit techniques related to the allocation of mixed service costs in the uniform capitalization methods of electric utilities.  The IRS and Idaho Power are jointly working through the impact the IDD guidance has on Idaho Power’s uniform capitalization method.  Initial estimates indicate the potential income and cash benefits associated with settlement of this matter to be in excess of the repairs method change recorded in the second quarter.  Idaho Power expects that the examination of this method will be completed during the third quarter of 2010; however, the timing of final settlement with the IRS, and thereby the recognition of the income and cash impacts, has yet to be determined.  Resolution of this matter would also result in a $1.1 million decrease to Idaho Power’s unrecognized tax benefits for its 2009 uniform capitalization deduction.

Tax Impacts of Health Care Acts

 

As discussed further in Note 10 – “Benefit Plans,” the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act were enacted in March 2010.  As a result of this legislation, in the first quarter of 2010, Idaho Power reduced its deferred tax asset related to future deductible retiree prescription drug expenses by $2.3 million, increased regulatory assets by $2.4 million, increased deferred tax liabilities by $1 million, and incurred a charge of $0.9 million.  No charges resulting from the legislation were incurred in the second quarter of 2010.

 

 

 

 

 

 

19

 


 


3.  REGULATORY MATTERS:

 

Deferred Net Power Supply Costs

 

Changes in deferred net power supply costs for the six months ended June 30, 2010 were as follows (in thousands of dollars):

 

 

Idaho

 

Oregon (1)

 

Total

Balance at December 31, 2009

$

71,412 

$

13,221 

$

84,633 

Impact of current period net power supply costs

 

(23,282)

 

(593)

 

(23,875)

Prior costs expensed and recovered through rates

 

(51,671)

 

(849)

 

(52,520)

SO 2 allowances and REC sales credited to account

 

(2,307)

 

 

(2,307)

Interest and other

 

106 

 

428 

 

534 

Balance at June 30, 2010

$

(5,742)

$

12,207 

$

6,465 

(1)   Oregon power supply cost deferrals are subject to a statute that specifically limits rate amortizations of deferred costs to six percent of gross Oregon revenue per year (approximately $2 million).  Deferrals are amortized sequentially.

 

 

Idaho Settlement Agreement

 

On January 13, 2010, the Idaho Public Utilities Commission (IPUC) approved a settlement agreement among Idaho Power, several of Idaho Power’s customers, the IPUC Staff, and other parties.  Significant elements of the settlement agreement include:

  • A general rate moratorium in effect until January 1, 2012.  The moratorium does not apply to other specified revenue requirement proceedings, such as the power cost adjustment (PCA), the fixed cost adjustment (FCA), pension funding, advanced metering infrastructure (AMI), energy efficiency rider, and government imposed fees.
  • A specified distribution of the expected reduction in 2010 PCA rates that would reduce customer rates, provide some general rate relief to Idaho Power, and reset base power supply costs for the PCA.  This provision anticipated a significant reduction in PCA rates for the 2010-2011 PCA year.  The PCA reduction and base rate adjustment is discussed in “2010 Idaho PCA Filing and Order” below.
  • A provision to share with Idaho customers 50 percent of any Idaho-jurisdictional earnings in excess of a 10.5 percent return on equity in any calendar year from 2009 to 2011.
  • A provision to allow additional amortization of ADITC if Idaho Power’s actual return on equity in its Idaho jurisdiction is below 9.5 percent in any calendar year from 2009 to 2011.  Idaho Power is permitted to amortize additional ADITC in an amount up to $45 million over the three-year period, but could use no more that $15 million in any one year unless there is a carryover.  Carryover amounts are added to the $15 million annual allowance up to a maximum amortization of $25 million in any one year.

 

Because Idaho Power’s 2009 Idaho-jurisdiction return on equity was between 9.5 and 10.5 percent, the sharing and additional amortization provisions were not triggered, and the ADITC available for additional amortization in 2010 is $25 million.  Idaho Power recorded additional ADITC amortization of $4.5 million in the first quarter of 2010, but reversed the entire $4.5 million in the second quarter based on updated estimates of annual 2010 return on equity.  The actual amount of additional ADITC recorded in the full year 2010 and 2011 will depend on Idaho Power’s annual return on year-end equity and the amounts recorded in each quarter will vary and may ultimately be reversed.

The settlement agreement also included a provision to reestablish the base level for net power supply costs effective with the June 1, 2010, PCA rate change.

2010 Idaho PCA Filing and Order

 

 

 

On May 28, 2010, the IPUC issued an order approving a $146.9 million decrease in the PCA, along with a base rate increase of $88.7 million.  The net effect of these two rate adjustments was an overall decrease in customer rates of $58.2 million, or 6.49 percent, effective June 1, 2010.  Idaho Power’s PCA application was approved as filed with the IPUC, with the exception of a $0.2 million interest expense adjustment relating to base power supply costs.

 

20

 


 


Other Idaho 2010 Filings and Orders

 

Rate Filings and Orders:  On May 28, 2010, the IPUC issued the following orders approving rate filings made in March 2010:

  • Fixed Cost Adjustment:  Idaho Power’s FCA filing for the 2009 calendar year proposed to collect $6.3 million for one year, a $3.6 million annual increase over current rates.  The $6.3 million reflects amounts accrued in 2009 under the mechanism.  Beginning June 1, 2010, Idaho Power implemented the rate increase to residential and small general service customers.  The IPUC also extended the FCA pilot program for two years, through December 31, 2011.
  • Pension:   Idaho Power filed a request to recover $5.4 million of pension contributions that it is required to make on or before September 15, 2010.  In accordance with prior IPUC orders, Idaho Power had been deferring its Idaho-jurisdiction pension expense to a regulatory asset.  On February 17, 2010, the IPUC approved a recovery methodology that would permit Idaho Power to include in future rate cases a reasonable recovery and amortization of cash contributions.  The IPUC approved Idaho Power’s request to increase rates by $5.4 million, or 0.77 percent, effective June 1, 2010.  The IPUC’s order provided that the allowance of recovery of this contribution does not guarantee that the IPUC will similarly approve future recovery of contributions, without further justification, but reiterated its authorization to continue regulatory treatment of current pension expenses.  In addition to the $5.4 million of regulatory assets approved for recovery discussed above, as of June 30, 2010, Idaho Power had $46.6 million of Idaho jurisdiction regulatory assets associated with deferred pension expenses that, based on its evaluation, are probable of recovery.
  • AMI:   Idaho Power filed for a $2.4 million annual increase in base rates for costs related to AMI.  The IPUC approved Idaho Power’s application as submitted, authorizing the rate increase effective June 1, 2010.

 

Energy Efficiency Prudency Determination:  On March 15, 2010, Idaho Power filed an application with the IPUC requesting an order designating energy efficiency expenditures of $50.7 million incurred in 2008 and 2009 as prudently incurred expenses.  A determination and order from the IPUC is pending.

On April 14, 2010, the IPUC completed its review of energy efficiency rider expenditures that Idaho Power made from 2002 through 2007.  All rider expenditures during that time period were found to be prudently incurred and approved for ratemaking purposes.

Oregon Regulatory Matters

 

Oregon 2009 General Rate Case Settlement:  In connection with Idaho Power’s general rate case filing, on February 24, 2010, the Oregon Public Utility Commission (OPUC) approved a $5 million, or 15.4 percent, increase in Oregon base rates.  The new rates were effective March 1, 2010, and are based on a return on equity of 10.175 percent and an overall rate of return of 8.061 percent.

Oregon Power Cost Recovery Mechanisms Idaho Power’s power cost recovery mechanism in Oregon has two components- the power cost adjustment mechanism (PCAM) and the annual power cost update (APCU).  On February 26, 2010, Idaho Power filed its PCAM application for the 2009 year with the OPUC.  The filing stated that actual net power supply costs were within the deadband, which is the range of deviations within which Idaho Power absorbs power supply cost increases or decreases, resulting in no request for a deferral.  On April 15, 2010, Idaho Power filed with the OPUC a stipulation combining its March power supply cost forecast and 2009 October update.  The stipulation was approved on May 24, 2010, and resulted in an overall increase of $2.2 million, or 5.5 percent, in Oregon rates, effective June 1, 2010.

Annual OATT Update

 

  On June 1, 2010, Idaho Power posted its Draft Informational Filing (DIF) for its Open Access Transmission Tariff (OATT) on its Open Access Same-Time Information System (OASIS) Internet platform.  The DIF is the draft computation of Idaho Power’s transmission rate for service under its OATT, which is updated annually.  The new draft rate submitted by Idaho Power was $19.60 per kW/yr, a 23.8 percent increase over the present rate of $15.83

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per kW/yr.  Several third parties have submitted data requests in connection with Idaho Power’s DIF, and Idaho Power is currently responding to those data requests.  If approved by the FERC, the new rates would be effective as of October 1, 2010 for a one year period.

4.  LONG-TERM DEBT:

 

As of June 30, 2010, IDACORP had approximately $574 million remaining on a shelf registration statement that can be used for the issuance of debt securities or common stock.

In April 2010, Idaho Power received approval from the IPUC, the OPUC, and the Public Service Commission of Wyoming for the issuance of up to $500 million in aggregate principal amount of one or more series of first mortgage bonds and unsecured debt securities.  The order from the IPUC approved the issuance of the securities over a two-year period, beginning on April 19, 2010, subject to extension upon request to the IPUC.  On May 12, 2010, Idaho Power filed a shelf registration statement with the Securities and Exchange Commission (SEC) for the sale of up to $500 million of first mortgage bonds and debt securities.  The SEC declared the registration statement effective on May 25, 2010.  To facilitate the issuance of the first mortgage bonds, on June 17, 2010, Idaho Power entered into a Selling Agency Agreement with ten banks named in the agreement in connection with the potential issuance and sale from time to time of up to $500 million aggregate principal amount of first mortgage bonds, secured medium term notes, Series I, under Idaho Power’s Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937, as amended and supplemented.  As of August 5, 2010, Idaho Power had not sold any first mortgage bonds or debt securities under the May 2010 shelf registration statement.

5.  NOTES PAYABLE:

 

Credit Facilities

 

IDACORP has a $100 million credit facility and Idaho Power has a $300 million credit facility, both of which expire on April 25, 2012.  Commercial paper may be issued up to the amounts supported by the credit facilities.  Under these facilities the companies pay a facility fee on the commitment, quarterly in arrears, based on its rating for senior unsecured long-term debt securities without third-party credit enhancement as provided by Moody’s Investors Service and Standard & Poor’s Ratings Services.

At June 30, 2010, no loans were outstanding on either IDACORP’s facility or Idaho Power’s facility.  At June 30, 2010, Idaho Power had regulatory authority to incur up to $450 million of short-term indebtedness.

Balances and interest rates of IDACORP’s short-term borrowings were as follows at June 30, 2010, and December 31, 2009 (in thousands of dollars).

 

 

June 30, 2010

December 31, 2009

IDACORP

 

 

 

 

 

Commercial paper outstanding

$

17,500

$

53,750

 

Weighted-average annual interest rate

 

0.46%

 

0.41%

 

 

 

 

 

Idaho Power had no short-term borrowings under its facility at either date.

 

 

 

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6.  COMMON STOCK:

IDACORP Common Stock

 

The following table summarizes shares of IDACORP common stock issued during the six months ended June 30, 2010:

 

Shares issued

Balance at December 31, 2009

47,925,882

Dividend reinvestment and stock purchase plan

77,273

Employee savings plan

55,248

Long-term incentive and compensation plan (LTICP) (1)

92,743

Restricted stock plan

13,293

Balance at June 30, 2010

48,164,439

 

 

(1)   Included in the LTICP activity are 15,800 shares that were issued pursuant to the exercise of stock options on December 30, 2009, and settled on January 4, 2010.

 

IDACORP enters into sales agency agreements as a means of selling its common stock from time to time.  As of June 30, 2010, there were 2.1 million shares remaining available to be sold under the current sales agency agreement.

Idaho Power Common Stock

 

On June 28, 2010, IDACORP contributed $10 million of additional equity to Idaho Power.  No additional shares of Idaho Power common stock were issued.

Restrictions on Dividends

 

A covenant under IDACORP’s credit facility and Idaho Power’s credit facility requires IDACORP and Idaho Power to maintain leverage ratios of consolidated indebtedness to consolidated total capitalization, as defined therein, of no more than 65 percent at the end of each fiscal quarter.

Idaho Power’s Revised Code of Conduct approved by the IPUC on April 21, 2008, states that Idaho Power will not pay any dividends to IDACORP that will reduce Idaho Power’s common equity capital below 35 percent of its total adjusted capital without IPUC approval.

Idaho Power’s ability to pay dividends on its common stock held by IDACORP and IDACORP’s ability to pay dividends on its common stock are limited to the extent payment of such dividends would violate the covenants in their respective credit facilities or Idaho Power’s Revised Code of Conduct.  At June 30, 2010, the leverage ratios for IDACORP and Idaho Power were 50 percent and 52 percent, respectively.  Based on these restrictions, IDACORP’s and Idaho Power’s dividends were limited to $657 million and $553 million, respectively, at June 30, 2010.  There are additional covenants, subject to exceptions, that prohibit or restrict: certain investments or acquisitions, mergers or sale or disposition of property without consent; the creation of certain liens; and any agreements restricting dividend payments to the company from any material subsidiary.  At June 30, 2010, IDACORP and Idaho Power were in compliance with all facility covenants.

Idaho Power’s articles of incorporation contain restrictions on the payment of dividends on its common stock if preferred stock dividends are in arrears.  Idaho Power has no preferred stock outstanding.

 

 

 

 

 

 

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7.  EARNINGS PER SHARE:

 

The following table presents the computation of IDACORP’s basic and diluted earnings per share (EPS) for the three and six months ended June 30, 2010 and 2009 (in thousands, except for per share amounts):

 

Three months ended

Six months ended

 

June 30,

June 30,

 

2010

2009

2010

2009

Numerator:

 

 

 

 

 

 

 

 

 

Net income attributable to IDACORP, Inc.

$

39,209

$

27,475

$

55,272

$

46,359

Denominator:

 

 

 

 

 

 

 

 

 

Weighted-average common shares outstanding - basic

 

47,888

 

46,958

 

47,831

 

46,895

 

Effect of dilutive securities:

 

 

 

 

 

 

 

 

 

 

Options

 

41

 

9

 

41

 

11

 

 

Restricted Stock

 

119

 

10

 

94

 

21

 

 

 

Weighted-average common shares outstanding - diluted

 

48,048

 

46,977

 

47,966

 

46,927

Basic earnings per share

$

0.82

$

0.59

$

1.16

$

0.99

Diluted earnings per share

$

0.82

$

0.58

$

1.15

$

0.99

  

 

The diluted EPS computation excludes 343,835 and 344,918 options for the three and six months ended June 30, 2010, respectively, because the options’ exercise prices were greater than the average market price of the common stock during that period.  For the same periods in 2009, there were 685,581 and 686,533 options excluded from the diluted EPS computation for the same reason.  In total, 574,704 options were outstanding at June 30, 2010, with expiration dates between 2010 and 2015.

8.  COMMITMENTS:

 

Purchase Obligations

 

The following items are the only material changes to purchase obligations made outside of the ordinary course of business during the first six months of 2010:

•        Idaho Power entered into a power purchase agreement with USG Oregon, LLC for the purchase of energy from the Neal Hot Springs Unit #1 geothermal electric generation facility.  The project will be located near Vale, Oregon and the expected output will be approximately 22 megawatts (MW), with an estimated on-line date of late 2012.  Idaho Power’s purchases under the contract are expected to total $569 million from 2012 to 2037.  On May 20, 2010, the IPUC issued an order approving the purchase of energy under the agreement and stated that the purchases would be allowed as prudently incurred expenses for ratemaking purposes.

•       In the second quarter, Idaho Power entered into several purchased power agreements with wind and other alternate energy developers.  These agreements are expected to total approximately $109 million from 2011 to 2031.

•       In April 2010, Idaho Power entered into multiple service agreements with Northwest Pipeline for rate schedule TF-1, Firm Transportation.  Idaho Power estimates it will spend approximately $32 million on the firm transportation service agreements.  The service agreements commence in 2011 with varying end dates ranging through 2042.

•       In June 2010, Idaho Power entered into a contract with Union Pacific Corporation for the transportation of coal.  Idaho Power has agreed to spend approximately $47 million over the term of the contract from 2011 to 2014.

 

Guarantees

Idaho Power has agreed to guarantee the performance of reclamation activities and obligations at BCC, of which IERCo owns a one-third interest.  This guarantee, which is renewed each December, was $63 million at June 30,

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2010.  BCC has a reclamation trust fund set aside specifically for the purpose of paying these reclamation costs.  BCC continually assesses the adequacy of the reclamation trust fund and its estimate of future reclamation costs.  To ensure that the reclamation trust fund maintains adequate reserves, BCC has the ability to add a per-ton surcharge to coal sales.  In 2010, BCC began applying a nominal surcharge to coal sales in order to maintain adequate reserves in the reclamation trust fund.  Because of the existence of the fund and the ability to apply a per-ton surcharge, the estimated fair value of this guarantee is minimal.

IDACORP and Idaho Power enter into financial agreements and power purchase and sale agreements that include indemnification provisions relating to certain claims or liabilities that may arise from the transactions contemplated by these agreements.  Generally, a maximum obligation is not explicitly stated in the indemnification provisions and, therefore, the overall maximum amount of the obligation under such indemnifications cannot be reasonably estimated.  IDACORP and Idaho Power periodically evaluate the likelihood of incurring costs under such indemnities based on their historical experience and the evaluation of the specific indemnities.  As of June 30, 2010, management believes the likelihood is remote that IDACORP or Idaho Power would be required to perform under such indemnification provisions or otherwise incur any significant losses with respect to such indemnifications.  Neither IDACORP nor Idaho Power has recorded any liability on their respective condensed consolidated balance sheets with respect to these indemnifications.

9.  CONTINGENCIES:

 

In the course of their respective businesses, IDACORP, Idaho Power, and their respective subsidiaries have in the past and expect in the future to become involved in various claims, controversies, disputes, and other contingent matters, including the items described in this Note.  Some of these claims, controversies, disputes, and other contingent matters involve litigation or other contested proceedings.  IDACORP, Idaho Power, and their respective subsidiaries intend to vigorously protect and defend their interests and pursue their rights.  However, no assurance can be given as to the ultimate outcome of any particular matter because litigation and other contested proceedings are inherently subject to numerous uncertainties.  For matters that affect Idaho Power’s operations, Idaho Power intends to seek, to the extent permissible and appropriate, recovery of incurred costs through the ratemaking process.

Western Energy Proceedings at the FERC

 

In this report, the term “western energy situation” is used to refer to the California energy crisis that occurred during 2000 and 2001, and the energy shortages, high prices, and blackouts in the western United States.  High prices for electricity in California and in western wholesale markets during 2000 and 2001 caused numerous purchasers of electricity in those markets to initiate proceedings seeking refunds or other forms of relief and the FERC to initiate its own investigations.  Some of these proceedings (referred to in this report as the western energy proceedings) remain pending before the FERC or on appeal to the United States Court of Appeals for the Ninth Circuit (Ninth Circuit).

There are more than 200 petitions pending in the Ninth Circuit for review of numerous FERC orders regarding the western energy situation.  Decisions in these appeals may have implications with respect to other pending cases, including those to which Idaho Power or IE are parties.  Idaho Power and IE intend to vigorously defend their positions in these proceedings, but are unable to predict the outcome of these matters.  Except as to the matters described below under “Pacific Northwest Refund,” Idaho Power and IE believe that settlement releases they have obtained that are described below under “California Refund” and “Market Manipulation” will restrict potential claims that might result from the disposition of the pending Ninth Circuit review petitions and that these matters will not have a material adverse effect on their consolidated financial positions, results of operations, or cash flows.


California Refund:   This proceeding originated with an effort by agencies of the State of California and investor-owned utilities in California to obtain refunds for a portion of the spot market sales from sellers of electricity into California markets from October 2, 2000, through June 20, 2001.  The FERC has issued numerous orders establishing price mitigation plans for sales in the California wholesale electricity market, including the methodology for determining refunds.  IE and numerous other parties have petitioned the Ninth Circuit for review of the FERC’s orders on California refunds.  As additional FERC orders have been issued, further petitions for review have been filed before the Ninth Circuit, which from time to time has identified discrete cases that can proceed to briefing and decision while it stayed action on the other consolidated cases.

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On May 22, 2006, the FERC approved an Offer of Settlement between and among IE and Idaho Power, the California Parties (consisting of Pacific Gas & Electric Company, San Diego Gas & Electric Company, Southern California Edison Company, the California Public Utilities Commission, the California Electricity Oversight Board, the California Department of Water Resources (CDWR), and the California Attorney General) and additional parties that elected to be bound by the settlement.  The settlement disposed of matters encompassed by the California refund proceeding, as well as market manipulation claims and investigations relating to the western energy situation among and between the parties agreeing to be bound by it.  Although many market participants agreed to be bound by the settlement, other market participants, representing a small minority of potential refund claims, initially elected not to be bound by the settlement.  From time to time, as the California Parties have reached settlements with those other market participants, they have elected to opt into the IE-Idaho Power-California Parties’ settlement.  The settlement provided for approximately $23.7 million of IE’s and Idaho Power’s estimated $36 million rights to accounts receivable from the California Independent System Operator (Cal ISO) and the California Power Exchange (CalPX) to be assigned to an escrow account for refunds and for an additional $1.5 million of accounts receivable to be retained by the CalPX until the conclusion of the litigation.  The additional $1.5 million of accounts receivable retained by the CalPX is available to fund the claims of non-settling parties if they prevail in the remaining litigation of these California market matters.  Any additional amounts owed to non-settling parties would be funded by other amounts owed to IE and Idaho Power by the Cal ISO and CalPX, or directly by IE and Idaho Power, and any excess funds remaining at the end of the case would be returned to IE and Idaho Power.  The remaining IE and Idaho Power receivables were paid to IE and Idaho Power under the settlement.

In an August 2006 decision, the Ninth Circuit ruled that all transactions that occurred within the CalPX and the Cal ISO markets from October 2, 2000 to June 21, 2001 were proper subjects of the refund proceeding.  In that decision the Ninth Circuit refused to expand the proceedings into the bilateral market, required the FERC to consider claims that some market participants had violated governing tariff obligations at an earlier date than the refund effective date, and expanded the scope of the refund proceeding to include transactions within the CalPX and Cal ISO markets outside the limited 24-hour spot market and energy exchange transactions.  Parts of the decision exposed sellers to increased claims for potential refunds.  The Ninth Circuit issued its mandate on April 15, 2009, thereby officially returning the cases to the FERC for further action consistent with the court’s decision.

On November 19, 2009, the FERC issued an order to implement the Ninth Circuit’s remand.  The remand order established a trial-type hearing in which participants will be permitted to submit information regarding (i) specified tariff violations committed by any public utility seller from January 1, 2000 to October 2, 2000 resulting in a transaction that set a market clearing price for the trading period when the violation occurred, and (ii) claims for refunds for multi-day transactions and energy exchange transactions entered into during the refund period (October 2, 2000 to June 20, 2001).  Numerous parties, including IE and Idaho Power, filed motions to clarify the FERC’s order.  Although IE and Idaho Power are unable to predict when or how the FERC will rule on these motions, the effect of the remand order for IE and Idaho Power is confined to the minority of market participants that are not bound by the IE-Idaho Power-California Parties’ settlement described above.  On July 16, 2010, the FERC Chief Administrative Law Judge designated a presiding administrative law judge to establish hearing procedures.  IE and Idaho Power believe the remanded proceedings will not have a material adverse effect on their consolidated financial positions, results of operations, or cash flows.

In 2005, the FERC established a framework for sellers wanting to demonstrate that the generally applicable FERC refund methodology interfered with the recovery of costs.  IE and Idaho Power made such a cost filing, which was rejected by the FERC.  On June 18, 2009, FERC issued an order stating that it was not ruling on IE's and Idaho Power's request for rehearing of the cost filing rejection because their request had been withdrawn in connection with the IE-Idaho Power-California Parties' settlement. On July 8, 2009, IE and Idaho Power sought further rehearing at the FERC because their withdrawal pertained only to the parties with whom IE and Idaho Power had settled.  On June 18, 2009, in a separate order, the FERC ruled that only net refund recipients were responsible for the costs associated with cost filings.  While most net refund recipients are bound by the settlement, until the Cal ISO completes its refund calculations it is uncertain whether there are any net refund recipients who are not bound by the settlement.  If there are no such parties, then IE's and Idaho Power's request for rehearing will be moot.  On May 18, 2010, the FERC denied rehearing.  On June 25, 2010, IE and Idaho Power filed a petition for review of the pertinent FERC orders in the Ninth Circuit.  IE and Idaho Power are unable to predict how or when the Ninth Circuit might rule, but the effect of any such ruling is confined to obligations of IE and Idaho Power to the small minority of

 

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claims of market participants that are not bound by the settlement.  Accordingly, IE and Idaho Power believe this matter will not have a material adverse effect on their consolidated financial positions, results of operations, or cash flows.

Market Manipulation:   On June 25, 2003, the FERC ordered approximately 50 entities that participated in the western wholesale power markets between January 1, 2000 and June 20, 2001, including Idaho Power, to show cause why certain trading practices did not constitute gaming or other forms of proscribed market behavior in concert with another party (partnership) in violation of the Cal ISO and CalPX Tariffs.  In 2004, the FERC dismissed the partnership show cause proceeding against Idaho Power.  Later in 2004, the FERC approved a settlement of the gaming proceeding without finding of wrongdoing by Idaho Power.

The orders establishing the scope of the show cause proceedings are presently the subject of review petitions in the Ninth Circuit.  On March 29, 2010, IE and Idaho Power filed a motion with the Ninth Circuit to dismiss 11 of the 12 petitions for review of the FERC’s orders establishing the scope of the show cause proceedings as they relate to IE and Idaho Power.  Although IE and Idaho Power had obtained the consent to the motion from the 11 petitioners in those proceedings, the Ninth Circuit misconstrued the motion and instead granted on April 1, 2010 a motion to withdraw IE and Idaho Power interventions in the review proceedings.  On April 9, 2010, with the consent of the same 11 petitioners, IE and Idaho Power filed a motion for reconsideration with the Ninth Circuit, again requesting dismissal of the 11 petitions as they pertain to IE and Idaho Power.  On May 28, 2010, the Ninth Circuit denied reconsideration.  Although IE and Idaho Power are unable to predict how or when the Ninth Circuit will act on the review petitions, in light of the settlement described above, IE and Idaho Power believe this matter will not have a material adverse effect on their consolidated financial positions, results of operations, or cash flows.

On June 25, 2003, the FERC also issued an order instituting an investigation of anomalous bidding behavior and practices in the western wholesale markets for the time period May 1, 2000 through October 1, 2000, but the FERC terminated its investigations as to Idaho Power on May 12, 2004.  California government agencies and California investor-owned utilities have appealed the FERC’s termination of this investigation as to Idaho Power and more than 30 other market participants.  IE and Idaho Power are unable to predict the outcome of these petitions for review proceedings, but believe that the settlement releases govern any potential claims that might arise and that this matter will not have a material adverse effect on their consolidated financial positions, results of operations, or cash flows.

Pacific Northwest Refund:   On July 25, 2001, the FERC issued an order establishing a proceeding separate from the California refund proceeding to determine whether there may have been unjust and unreasonable charges for spot market sales in the Pacific Northwest during the period December 25, 2000 through June 20, 2001, because the spot market in the Pacific Northwest was affected by the dysfunction in the California market.  In 2003, the FERC terminated the proceeding and declined to order refunds, but in 2007 the Ninth Circuit issued an opinion, in Port of Seattle, Washington v. FERC , remanding to the FERC the orders that declined to require refunds.  The Ninth Circuit’s opinion instructed the FERC to consider whether evidence of market manipulation would have altered the agency’s conclusions about refunds and directed the FERC to include sales originating in the Pacific Northwest to the CDWR in the scope of proceeding.  The Ninth Circuit officially returned the case to the FERC on April 16, 2009.  On September 4, 2009, IE and Idaho Power joined with a number of other parties in a joint petition for a writ of certiorari to the U.S. Supreme Court, which was denied on January 11, 2010.


In separate filings, the California Parties, which no longer include the California Electricity Oversight Board, and the City of Tacoma, Washington (Tacoma) and the Port of Seattle, Washington (Port of Seattle) asked the FERC to reorganize and restructure the case to enable them to pursue claims that all spot market sales in the Cal ISO and CalPX markets and in the Pacific Northwest from January 1, 2000 through June 20, 2001 should be subject to refund and repriced, because market manipulation and tariff violations affected spot market prices.  Their requests would expand the scope of the refund period in the Pacific Northwest proceeding from the December 25, 2000 through June 20, 2001 period previously considered by the FERC.  On May 22, 2009, the California Parties filed a motion with the FERC to sever claims regarding sales originating in the Pacific Northwest to CDWR from the remainder of the Pacific Northwest proceedings and to consolidate their claims regarding these sales with ongoing proceedings in cases that IE and Idaho Power have settled, as well as with a new complaint filed on May 22, 2009 by the California Attorney General against parties with whom the California Parties have not settled (Brown Complaint).  IE and Idaho Power, along with a number of other parties, filed their opposition to the motion of the California Parties. 

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Many other parties also filed responses to the motion of the California Parties.  Tacoma and the Port of Seattle jointly filed a motion on August 4, 2009 with the FERC in connection with the California refund proceeding, the Lockyer remand pending before the FERC (involving claims of failure to file quarterly transaction reports with the FERC, from which IE and Idaho Power previously were dismissed), the Brown Complaint, and the Pacific Northwest refund remand proceeding.  The Tacoma and the Port of Seattle motion asks the FERC to require refunds from all sellers in the Pacific Northwest spot markets for the expanded period (January 1, 2000 through June 20, 2001).  IE and Idaho Power joined with a number of other sellers in the Pacific Northwest markets during 2000 and 2001 in opposing the motion of Tacoma and the Port of Seattle.  On April 19, 2010, the California Parties filed a motion with the FERC renewing the requests contained in their May 22, 2009 motion and on May 3, 2010, IE and Idaho Power joined with a number of other parties opposing the renewal request.  On July 21, 2010, the Port of Seattle and Tacoma once again filed a motion requesting that the FERC either summarily dispose of the case or set it for hearing, and the California Parties, answering a pleading in the Brown Complaint, renewed their request for consolidation.  The FERC has not acted on the Ninth Circuit remand or the motions.  IE and Idaho Power intend to vigorously defend their positions in these proceedings but are unable to predict the outcome of these matters or estimate the impact these matters may have on their consolidated financial positions, results of operations, or cash flows.

Sierra Club Lawsuit – Bridger

 

In February 2007, the Sierra Club and the Wyoming Outdoor Council filed a complaint against PacifiCorp in the U.S. District Court for the District of Wyoming alleging thousands of violations by PacifiCorp of air quality opacity standards at the Jim Bridger coal-fired plant in Sweetwater County, Wyoming.  Opacity is an indication of the amount of light obscured by the flue gas of a power plant.  The complaint sought a declaration that PacifiCorp had violated opacity limits, a permanent injunction ordering PacifiCorp to comply with such limits, civil penalties and reimbursement of plaintiffs’ costs of litigation.  Idaho Power was not a party to this proceeding but has a one-third ownership interest in the plant.  PacifiCorp owns a two-thirds interest and is the operator of the plant.  On April 15, 2010, the parties jointly filed a proposed consent decree resolving the pending litigation, and the consent decree was entered by the court on June 8, 2010.  Idaho Power is fully reserved for the contingency, and entry of the consent decree will not have a material adverse effect on Idaho Power’s consolidated financial position, results of operations, or cash flows.

Sierra Club Lawsuit – Boardman

 

In September 2008, the Sierra Club and four other non-profit corporations filed a complaint against Portland General Electric Company (PGE) in the U.S. District Court for the District of Oregon alleging opacity permit limit violations at the Boardman coal-fired plant located in Morrow County, Oregon.  The complaint also alleged violations of the Clean Air Act, related federal regulations, and the Oregon State Implementation Plan relating to PGE’s construction and operation of the plant.  The complaint sought a declaration that PGE had violated opacity limits, a permanent injunction ordering PGE to comply with such limits, injunctive relief requiring PGE to remediate alleged environmental damage and ongoing impacts, civil penalties of up to $32,500 per day per violation, and reimbursement of plaintiffs’ costs of litigation, including reasonable attorneys’ fees.  Idaho Power is not a party to this proceeding but has a 10 percent ownership interest in the Boardman plant.  PGE owns 65 percent of the plant and is the operator of the plant.  On December 5, 2008, PGE filed a motion to dismiss nine of the twelve claims asserted by the plaintiffs in their complaint, and on September 30, 2009, the court denied most of PGE’s motion to dismiss.  Idaho Power continues to monitor the status of this matter but is unable to predict its outcome or what effect this matter may have on its consolidated financial position, results of operations, or cash flows.

Snake River Basin Adjudication

 

Idaho Power is engaged in the Snake River Basin Adjudication (SRBA), a general stream adjudication commenced in 1987, to define the nature and extent of water rights in the Snake River Basin in Idaho, including the water rights of Idaho Power.

On March 25, 2009, Idaho Power and the State of Idaho entered into a settlement agreement with respect to the 1984 Swan Falls Agreement and Idaho Power's water rights under the Swan Falls Agreement, which settlement agreement is subject to certain conditions discussed below.  The settlement agreement will also resolve litigation

 

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between Idaho Power and the State of Idaho relating to the Swan Falls Agreement that was filed by Idaho Power on May 10, 2007, with the Idaho District Court for the Fifth Judicial Circuit, which has jurisdiction over SRBA matters, including the Swan Falls case.

The settlement agreement resolves the pending litigation by clarifying that Idaho Power’s water rights in excess of minimum flows at its hydroelectric facilities between Milner Dam and Swan Falls Dam are subordinate to future upstream beneficial uses, including aquifer recharge.  The agreement commits the State of Idaho and Idaho Power to further discussions on important water management issues concerning the Swan Falls Agreement and the management of water in the Snake River Basin.  It also recognizes that water management measures that enhance aquifer levels, springs and river flows, such as aquifer recharge projects, benefit both agricultural development and hydropower generation and deserve study to determine their economic potential, their impact on the environment, and their impact on hydropower generation.  These will be a part of the Comprehensive Aquifer Management Plan (CAMP) approved by the Idaho Water Resource Board for the Eastern Snake Plain Aquifer (ESPA), which includes limits on the amount of aquifer recharge.  Idaho Power is a member of the ESPA CAMP advisory committee and implementation committee.

On April 24, 2009, the Governor of Idaho signed into law legislation approving provisions contained in the settlement agreement.  On May 6, 2009, as part of the settlement, Idaho Power, the Governor of Idaho, and the Idaho Water Resource Board executed a memorandum of agreement relating to future aquifer recharge efforts and further assurances as to limitations on the amount of aquifer recharge.  Idaho Power and the State of Idaho also filed a joint motion to the SRBA court to dismiss the Swan Falls case and enter the stipulated water right decrees set forth in the settlement agreement.  Parties representing groundwater users in the Eastern Snake Plain Aquifer objected to some of the language proposed by Idaho Power and the State of Idaho relating to water rights in the decrees to be entered by the SRBA court as contemplated by the settlement agreement.  Specifically, the concerns relate to the language describing the subordination of the rights and its interplay with the original Swan Falls settlement document and implementing legislation.  On January 4, 2010, the court issued an order approving the overall settlement subject to certain modifications to the draft water right decrees proposed by the company and the State of Idaho.  Idaho Power continues to work with the State of Idaho and the parties to reach an agreement consistent with the court’s order regarding the language of the decrees.

U.S. Bureau of Reclamation Proceedings

 

Idaho Power filed a complaint on October 15, 2007, and an amended complaint on September 30, 2008, in the U.S. District Court of Federal Claims in Washington, D.C. against the U.S. Bureau of Reclamation (USBR).  The complaint relates to a 1923 contract right for delivery of water to Idaho Power’s hydropower projects on the Snake River, to recover damages from the USBR for the lost generation resulting from reduced flows, and for a prospective declaration of contractual rights and obligations of the parties.  Over the past several months, Idaho Power has been working with the U.S. and Idaho interests (including the State of Idaho and upstream water users) in an effort to resolve certain state water right issues pending in the SRBA that are common to both the SRBA and the pending federal case.  Current discussions primarily relate to modification to state policy and the Idaho water plan that promote more efficient operation of the upper Snake River reservoir system to optimize the release and shaping of Snake River flows for hydroelectric generation downstream during the high-load winter months.  In an effort to promote efficiency, the parties have agreed to present certain legal issues associated with the 1923 contract to the court in the SRBA case that are expected to resolve issues in the pending federal case.  The SRBA court has scheduled the presentation of these issues to the court by the fall of 2010.  Idaho Power and the USBR have agreed to stay further proceedings in the federal case pending the resolution of these issues in the SRBA case.  Idaho Power is unable to predict the outcome of this matter or what effect it may have on its financial position, results of operations, or cash flows.

Oregon Trail Heights Fire

 

On August 25, 2008, a fire ignited beneath an Idaho Power distribution line in Boise, Idaho.  It was fanned by high winds and spread rapidly, resulting in one death, the destruction of 10 homes, and damage or alleged fire-related losses to approximately 30 others.  Following the investigation, the Boise Fire Department determined that the fire was linked to a piece of line hardware on one of Idaho Power's distribution poles and that high winds contributed to the fire and its resultant damage.  Idaho Power has received notice of claims from a number of the homeowners and

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their insurers and while it has continued investigation of these claims, Idaho Power has reached settlements with a number of the individuals or their insurers who have alleged damages resulting from the fire.  Idaho Power is insured up to policy limits against liability for claims in excess of its self-insured retention.  Idaho Power has accrued a reserve for any loss that is probable and reasonably estimable, including insurance deductibles, and believes this matter will not have a material adverse effect on its consolidated financial position, results of operations, or cash flows.

Other Legal Proceedings

 

IDACORP, Idaho Power, and/or IE are parties to legal claims, actions, and proceedings in addition to those discussed above.  Resolution of any of these matters will take time and the companies cannot predict the outcome of any of these proceedings.  The companies currently believe that their reserves are adequate for these matters and that resolution of these matters, taking into account existing reserves, will not have a material adverse effect on IDACORP’s or Idaho Power’s consolidated financial positions, results of operations, or cash flows.

10.  BENEFIT PLANS:

 

Idaho Power has a noncontributory defined benefit pension plan covering most employees.  The benefits under the plan are based on years of service and the employee’s final average earnings.  In addition, Idaho Power has a nonqualified deferred compensation plan for certain senior management employees and directors called the Senior Management Security Plan (SMSP).  Idaho Power also maintains a defined benefit postretirement plan (consisting of health care and death benefits) that covers all employees who were enrolled in the active group plan at the time of retirement as well as their spouses and qualifying dependents.  Idaho Power also has an Employee Savings Plan that complies with Section 401(k) of the Internal Revenue Code and covers substantially all employees.  Idaho Power matches specified percentages of employee contributions to the Employee Savings Plan.

The following table shows the components of net periodic benefit costs for the pension, SMSP, and postretirement benefits plans for the three months ended June 30 (in thousands of dollars):

 

 

Senior Management

Postretirement

 

Pension Plan

Security Plan

Benefits

 

2010

2009

2010

2009

2010

2009

Service cost

$

4,277 

$

4,052 

$

386 

$

403 

$

340 

$

278 

Interest cost

 

7,229 

 

6,985 

 

751 

 

713 

 

897 

 

900 

Expected return on plan assets

 

(6,277)

 

(5,895)

 

 

 

(640)

 

(545)

Amortization of transition obligation

 

 

 

 

 

510 

 

510 

Amortization of prior service cost

 

162 

 

163 

 

58 

 

58 

 

(134)

 

(133)

Amortization of net loss

 

1,913 

 

2,308 

 

233 

 

165 

 

144 

 

231 

 

Net periodic benefit cost

 

7,304 

 

7,613 

 

1,428 

 

1,339 

 

1,117 

 

1,241 

Costs not recognized due to the

 

 

 

 

 

 

 

 

 

 

 

 

 

effects of regulation (1)

 

(6,599)

 

(7,613)

 

 

 

 

 

Net periodic benefit cost

 

 

 

 

 

 

 

 

 

 

 

 

 

 

recognized for financial

 

 

 

 

 

 

 

 

 

 

 

 

 

 

reporting (2)

$

705 

$

$

1,428 

$

1,339 

$

1,117 

$

1,241 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(1)   Under IPUC order, income statement recognition of Pension Plan costs has been deferred until costs are recovered through rates. See Note 3 - "Regulatory Matters" for information on Idaho Power's 2010 pension rate filing.

(2)  Net periodic benefit costs for the pension plan are recognized for the Oregon jurisdiction and non-regulated subsidiaries, and beginning in June 2010, for the Idaho and FERC jurisdictions.

 

 

 

 

 

 

 

 

 

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The following table shows the components of net periodic benefit costs for the six months ended June 30 (in thousands of dollars):

 

 

Senior Management

Postretirement

 

Pension Plan

Security Plan

Benefits

 

2010

2009

2010

2009

2010

2009

Service cost

$

8,836 

$

8,257 

$

771 

$

805 

$

680 

$

610 

Interest cost

 

14,560 

 

13,932 

 

1,502 

 

1,427 

 

1,795 

 

1,782 

Expected return on plan assets

 

(12,577)

 

(11,983)

 

 

 

(1,280)

 

(1,073)

Amortization of transition obligation

 

 

 

 

 

1,020 

 

1,020 

Amortization of prior service cost

 

325 

 

326 

 

116 

 

116 

 

(268)

 

(267)

Amortization of net loss

 

3,838 

 

4,428 

 

466 

 

330 

 

287 

 

421 

 

Net periodic benefit cost

 

14,982 

 

14,960 

 

2,855 

 

2,678 

 

2,234 

 

2,493 

Costs not recognized due to the

 

 

 

 

 

 

 

 

 

 

 

 

 

effects of regulation (1)

 

(14,026)

 

(14,960)

 

 

 

 

 

Net periodic benefit cost

 

 

 

 

 

 

 

 

 

 

 

 

 

 

recognized for financial

 

 

 

 

 

 

 

 

 

 

 

 

 

 

reporting (2)

$

956 

$

$

2,855 

$

2,678 

$

2,234 

$

2,493 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(1)   Under IPUC order, income statement recognition of Pension Plan costs has been deferred until costs are recovered through rates.  See Note 3 – “Regulatory Matters” for information on Idaho Power’s 2010 pension rate filing.

(2)  Net periodic benefit costs for the pension plan are recognized for the Oregon jurisdiction and non-regulated subsidiaries, and beginning in June 2010, for the Idaho and FERC jurisdictions.

 

Benefit Plan-Related Legislation

 

The Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act were enacted in March 2010.  One provision of this legislation eliminates the deductibility of employer health care costs for retiree prescription drug expenses that are covered by federal subsidy payments equivalent to Medicare Part D.  While this provision is not effective until 2013, relevant income tax accounting guidance requires recognition of the future effects of new law in the period of enactment.  Due to the regulatory treatment of postretirement benefit costs, the increase in certain postretirement costs relating to the legislation is deferred as a regulatory asset.  See Note 2 – “Income Taxes” for the tax impacts recorded as a result of this legislation.

In June 2010, the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010 was signed into law, which permits employers to choose between two alternative funding options for defined benefit pension plans for any two plan years between 2008 and 2011, either (i) amortizing the funding shortfall for the applicable years over 15 years or (ii) paying interest only on the applicable plan years’ funding shortfall for two plan years followed by amortization of the actual shortfall for 7 years.  Idaho Power is currently evaluating the new legislation and its potential impacts, but no decision has been made in regard to this act.  If an alternate funding option is elected, it would reduce near-term required contributions to the plan by spreading them over a longer time period.  Unless Idaho Power elects to utilize an alternative amortization schedule under the new legislation, minimum required contributions to the pension plan is $6 million in the third quarter of 2010, and are estimated to be $44 million, $47 million, $39 million, and $40 million in 2011, 2012, 2013, and 2014, respectively.  Idaho Power may elect to make contributions earlier than the required dates.

The legislation does not eliminate Idaho Power’s obligation to fully fund the pension plan.  In addition, the legislation outlines penalties in the form of increased pension contributions from an employer that elects one of the funding relief options at the same time that employer (or entities within its ERISA-controlled group) awards “excess employee compensation” (generally compensation over $1 million per year paid to an employee), grants “excessive” dividends, or effects specified stock redemptions.  Idaho Power will evaluate the legislation and its alternatives further prior to electing an alternative, if any.  See Note 3 - “Regulatory Matters” for a discussion of Idaho Power’s recovery of pension plan contributions through the ratemaking process.

 

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11.  INVESTMENTS IN DEBT AND EQUITY SECURITIES:

 

Investments in debt and equity securities classified as available-for-sale securities are reported at fair value, using either specific identification or average cost to determine the cost for computing gains or losses.  Any unrealized gains or losses on available-for-sale securities are included in other comprehensive income.

Investments classified as held-to-maturity securities are reported at amortized cost.  Held-to-maturity securities are investments in debt securities for which the companies have the positive intent and ability to hold the securities until maturity.

The following table summarizes investments in debt and equity securities of IDACORP and Idaho Power as of June 30, 2010 and December 31, 2009 (in thousands of dollars):

 

June 30, 2010

December 31, 2009

 

Gross

Gross

 

Gross

Gross

 

 

Unrealized

Unrealized

Fair

Unrealized

Unrealized

Fair

 

Gain

Loss

Value

Gain

Loss

Value

Available-for-sale securities

$

1,731

$

-

$

16,281

$

2,989

$

-

$

18,842

 

 

At the end of each reporting period, IDACORP and Idaho Power analyze securities in loss positions to determine whether they have experienced a decline in market value that is considered other-than-temporary.  At June 30, 2010 and December 31, 2009, no securities were in an unrealized loss position.

The following table summarizes sales of available-for-sale securities for the three and six months ended June 30, 2010 and 2009 (in thousands of dollars):

 

Three months ended

Six months ended

 

June 30,

June 30,

 

2010

2009

2010

2009

 

 

 

 

 

 

 

 

 

Proceeds from sales

$

-

$

4,103

$

-

$

8,965

Gross realized gains from sales

 

-

 

-

 

-

 

11

Gross realized losses from sales

 

-

 

35

 

-

 

35

 

 

 

 

 

 

 

 

 

 

12.  DERIVATIVE FINANCIAL INSTRUMENTS:

 

Commodity Price Risk

 

In connection with its ongoing business operations, Idaho Power is exposed to market risks relating to changes in electricity and natural gas commodity prices and certain other fuel prices, which are heavily influenced by supply and demand.  Market risk may also be influenced by market participants’ nonperformance of their contractual obligations and commitments, which affects the supply of, or demand for, the commodity.  Idaho Power utilizes derivative instruments, such as physical and financial forward contracts, for both electricity and fuel in order to manage the risks relating to these commodity price exposures.  The objective of Idaho Power’s energy purchase and sale activity is to meet the demand of retail electric customers, maintain appropriate physical reserves to ensure reliability, and make economic use of temporary surpluses that may develop.

All derivative instruments are recognized as either assets or liabilities at fair value on the balance sheet.  Idaho Power’s physical forward contracts, including renewable energy certificates, qualify for the normal purchases and normal sales exception to derivative accounting requirements with the exception of forward contracts for the purchase of natural gas for use at Idaho Power’s natural gas generation facilities.  Because of Idaho Power’s power cost adjustment mechanisms, Idaho Power records the changes in fair value of derivative instruments related to power supply as regulatory assets or liabilities.

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Idaho Power had the following volumes of derivative commodity forward contracts, entered into for the purpose of economically hedging forecasted purchases and sales, outstanding at June 30, 2010 and 2009:

 

June 30,

Commodity

Units

2010

2009

Electricity purchases

MWh

875,650

564,800

Electricity sales

MWh

367,225

220,000

Natural gas purchases

MMBtu

1,898,750

2,797,750

Diesel purchases

Gallons

447,309

446,150

 

 

 

 

 

The following tables present the fair values and locations of derivatives not designated as hedging instruments recorded in the balance sheets at June 30, 2010 and December 31, 2009 (in thousands of dollars):

Commodity Derivatives

Asset Derivatives

Liability Derivatives

 

 

Balance Sheet

Fair

Balance Sheet

Fair

June 30, 2010

Location

Value

Location

Value

Current:

 

 

 

 

 

 

 

Financial swaps

Other current assets

$

17

Other current assets

$

-

 

Financial swaps

Other current liabilities

 

-

Other current liabilities

 

3,889

 

Forward contracts

Other current liabilities

 

-

Other current liabilities

 

384

Long-term:

 

 

 

 

 

 

 

Financial swaps

Other assets

 

120

Other assets

 

-

 

Financial swaps

Other liabilities

 

-

Other liabilities

 

2,387

 

 

Total

 

$

137

 

$

6,660

 

 

 

 

 

 

 

 

 

December 31, 2009

 

 

Current:

 

 

 

 

 

 

 

 Financial swaps

Other current assets

$

2,931

Other current assets

$

2,087

 

 Financial swaps

Other current liabilities

 

9

Other current liabilities

 

610

 

 Forward contracts

Other current assets

 

354

Other current assets

 

-

Long-term:

 

 

 

 

 

 

 

 Financial swaps

Other assets

 

442

Other assets

 

229

 

 

 Total

 

$

3,736

 

$

2,926

 

 

 

 

 

 

 

 

 

 

 

 

The following table presents the effect on income of derivatives not designated as hedging instruments for the three and six months ended June 30, 2010 and 2009 (in thousands of dollars):

 

Location of Gain/(Loss)

Amount of Gain/(Loss)

 

Recognized in Income on

Recognized in Income on

Commodity Derivatives

Derivative

Derivative (1)

Three months ended June 30, 2010:

 

 

 

 

Financial swaps

Off-system sales

$

496 

 

Financial swaps

Purchased power

 

(2,223)

Three months ended June 30, 2009:

 

 

Financial swaps

Off-system sales

 

2,287 

 

Financial swaps

Purchased power

 

(1,664)

Six months ended June 30, 2010:

 

 

 

 

Financial swaps

Off-system sales

$

952 

 

Financial swaps

Purchased power

 

(2,385)

Six months ended June 30, 2009:

 

 

Financial swaps

Off-system sales

 

2,287 

 

Financial swaps

Purchased power

 

(2,421)

 

 

(1)  Excludes changes in fair value of derivatives, which are recorded on the balance sheet as regulatory assets or regulatory liabilities.

 

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Settlement gains and losses on electricity swap contracts are recorded on the income statement in off-system sales or purchased power depending on the forecasted position being economically hedged by the derivative contract.  Settlement gains and losses on both financial and physical contracts for natural gas are reflected in fuel expense.  Settlement gains and losses on diesel derivatives, which are recorded in fuel stock on the balance sheet, were immaterial for the three and six months ended June 30, 2010.  See Note 13 - “Fair Value Measurements” for additional information concerning the determination of fair value for Idaho Power’s assets and liabilities from price risk management activities.

Credit Risk

At June 30, 2010, Idaho Power does not have material credit exposure from financial instruments, including derivatives.  Idaho Power monitors credit risk exposure through reviews of counterparty credit quality, corporate-wide counterparty credit exposure, and corporate-wide counterparty concentration levels.  Idaho Power manages these risks by establishing appropriate credit and concentration limits on transactions with counterparties and requiring contractual guarantees, cash deposits, or letters of credit from counterparties or their affiliates, as deemed necessary.  The majority of Idaho Power’s contracts are under the form of the Western Systems Power Pool agreement that provides for adequate assurances if a counterparty has debt that is downgraded to below investment grade by at least one rating agency.  Idaho Power also requires North American Energy Standards Board contracts as necessary for physical gas transactions, and International Swaps and Derivatives Association, Inc. contracts as needed for financial transactions.

Credit-Contingent Features

Certain of Idaho Power’s derivative instruments contain provisions that require Idaho Power’s unsecured debt to maintain an investment grade credit rating from each of the major credit rating agencies.  If Idaho Power’s unsecured debt were to fall below investment grade, it would be in violation of these provisions, and the counterparties to the derivative instruments could request immediate payment or demand immediate and ongoing full overnight collateralization on derivative instruments in net liability positions.  The aggregate fair value of all derivative instruments with credit-risk-related contingent features that are in a liability position on June 30, 2010, was $10 million.  Idaho Power had posted $7 million of collateral related to this amount.  If the credit-risk-related contingent features underlying these agreements were triggered on June 30, 2010, Idaho Power would have been required to post $1 million of additional cash collateral to its counterparties.

13.  FAIR VALUE MEASUREMENTS:

 

IDACORP and Idaho Power have categorized their financial instruments, based on the priority of the inputs to the valuation technique, into a three-level fair value hierarchy.  The fair value hierarchy gives the highest priority to quoted prices in active markets for identical assets or liabilities (Level 1) and the lowest priority to unobservable inputs (Level 3).  If the inputs used to measure the financial instruments fall within different levels of the hierarchy, the categorization is based on the lowest level input that is significant to the fair value measurement of the instrument.

Financial assets and liabilities recorded on the condensed consolidated balance sheets are categorized based on the inputs to the valuation techniques as follows:

•         Level 1:  Financial assets and liabilities whose values are based on unadjusted quoted prices for identical assets or liabilities in an active market that IDACORP and Idaho Power has the ability to access.

•         Level 2:  Financial assets and liabilities whose values are based on the following:

a)       Quoted prices for similar assets or liabilities in active markets;

b)       Quoted prices for identical or similar assets or liabilities in non-active markets;

c)       Pricing models whose inputs are observable for substantially the full term of the asset or liability; and

d)       Pricing models whose inputs are derived principally from or corroborated by observable market data through correlation or other means for substantially the full term of the asset or liability.

IDACORP and Idaho Power Level 2 inputs are based on quoted market prices adjusted for location using corroborated, observable market data.

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•         Level 3:  Financial assets and liabilities whose values are based on prices or valuation techniques that require inputs that are both unobservable and significant to the overall fair value measurement.  These inputs reflect management’s own assumptions about the assumptions a market participant would use in pricing the asset or liability.

Idaho Power’s derivatives are contracts entered into as part of its management of loads and resources.  Electricity swaps are valued on the Intercontinental Exchange with quoted prices in an active market.  Natural gas and diesel derivative valuations are performed using New York Mercantile Exchange (NYMEX) pricing, adjusted for basis location, which are also quoted under NYMEX.  Trading securities consists of employee-directed investments held in a Rabbi Trust and are related to an executive deferred compensation plan.  Available-for-sale securities are related to the SMSP and are held in a Rabbi Trust and are actively traded money market and equity funds with quoted prices in active markets.

The table below presents information about IDACORP’s and Idaho Power’s assets and liabilities measured at fair value on a recurring basis as of June 30, 2010, and December 31, 2009 (in thousands of dollars).  IDACORP’s and Idaho Power’s assessment of the significance of a particular input to the fair value measurement requires judgment and may affect the valuation of fair value assets and liabilities and their placement within the fair value hierarchy.  There were no transfers between levels for the periods presented.

 

Quoted Prices in

Significant

Significant

 

 

Active Markets

Other

Unobservable

 

 

for Identical

Observable

Inputs

 

 

Assets (Level 1)

Inputs (Level 2)

(Level 3)

Total

June 30, 2010

 

 

 

 

 

 

 

 

IDACORP

 

 

 

 

 

 

 

 

Assets:

 

 

 

 

 

 

 

 

 

Derivatives

$

137 

$

$

-

$

137 

 

Money market funds

 

11,776 

 

 

-

 

11,776 

 

Trading securities:  Equity securities

 

4,599 

 

 

-

 

4,599 

 

Available-for-sale securities:  Equity securities

 

16,281 

 

 

-

 

16,281 

Liabilities:

 

 

 

 

 

 

 

 

 

Derivatives

$

(2,810)

$

(384)

$

-

$

(3,194)

Idaho Power

 

 

 

 

 

 

 

 

Assets:

 

 

 

 

 

 

 

 

 

Derivatives

$

137 

$

$

-

$

137 

 

Money market funds

 

10,000 

 

 

-

 

10,000 

 

Trading securities:  Equity securities

 

4,089 

 

 

-

 

4,089 

 

Available-for-sale securities:  Equity securities

 

16,281 

 

 

-

 

16,281 

Liabilities:

 

 

 

 

 

 

 

 

 

Derivatives

$

(2,810)

$

(384)

$

-

$

(3,194)

 

December 31, 2009

IDACORP

Assets:

 

Derivatives

$

1,056 

$

354 

$

-

$

1,410 

 

Money market funds

38,221 

-

38,221 

 

Trading securities:  Equity securities

6,286 

-

6,286 

 

Available-for-sale securities:  Equity securities

18,842 

-

18,842 

Liabilities:

 

Derivatives

$

(601)

$

$

-

$

(601)

Idaho Power

Assets:

 

Derivatives

$

1,056 

$

354 

$

-

$

1,410 

 

Money market funds

19,364 

-

19,364 

 

Trading securities:  Equity securities

5,217 

-

5,217 

 

Available-for-sale securities:  Equity securities

18,842 

-

18,842 

Liabilities:

 

Derivatives

$

(601)

$

$

-

$

(601)

 

 

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The table below presents the carrying value and estimated fair value of financial instruments that are not reported at fair value, as of June 30, 2010 and December 31, 2009, using available market information and appropriate valuation methodologies.  The use of different market assumptions and/or estimation methodologies may have a material effect on the estimated fair value amounts.  Cash and cash equivalents, deposits, customer and other receivables, notes payable, accounts payable, interest accrued, and taxes accrued are reported at their carrying value as these are a reasonable estimate of their fair value.  The estimated fair values for notes receivable and long-term debt are based upon quoted market prices of the same or similar issues or discounted cash flow analyses as appropriate.

 

June 30, 2010

December 31, 2009

 

Carrying

Estimated

Carrying

Estimated

 

Amount

Fair Value

Amount

Fair Value

 

(thousands of dollars)

IDACORP

 

 

 

 

 

 

 

 

Assets:

 

 

 

 

 

 

 

 

Notes receivable

$

2,946

$

2,946

$

2,946

$

2,946

Liabilities:

 

 

 

 

 

 

 

 

Long-term debt

1,421,526

1,490,961

 

1,422,130

 

1,406,815

Idaho Power

 

 

 

 

 

 

 

 

Liabilities:

 

 

 

 

 

 

 

 

Long-term debt

$

1,412,791

$

1,482,307

$

1,413,854

$

1,398,681

 

 

 

 

 

14.  SEGMENT INFORMATION:

 

IDACORP’s only reportable segment is utility operations.  The utility operations segment’s primary source of revenue is the regulated operations of Idaho Power.  Idaho Power’s regulated operations include the generation, transmission, distribution, purchase, and sale of electricity.  This segment also includes income from IERCo, a wholly-owned subsidiary of Idaho Power that is also subject to regulation and is a one-third owner of BCC, an unconsolidated joint venture.

IDACORP’s other operating segments are below the quantitative and qualitative thresholds for reportable segments and are included in the “All Other” category.  This category is comprised of IFS’s investments in affordable housing developments and historic rehabilitation projects, Ida-West’s joint venture investments in small hydroelectric generation projects, the remaining activities of energy marketer IE, which wound down its operations in 2003, and IDACORP’s holding company expenses.

The following table summarizes the segment information for IDACORP’s utility operations and the total of all other segments, and reconciles this information to total enterprise amounts (in thousands of dollars):

 

Utility

All

 

Consolidated

 

Operations

Other

Eliminations

Total

Three months ended June 30, 2010:

 

 

 

 

 

Revenues

$

240,790

$

963 

$

$

241,753

 

Income attributable to IDACORP, Inc.

 

38,828

 

381 

 

 

39,209

Total assets at June 30, 2010

$

4,157,515

$

144,879 

$

(21,607)

$

4,280,787

Three months ended June 30, 2009:

 

Revenues

$

242,518

$

1,116 

$

$

243,634

 

Income attributable to IDACORP, Inc.

 

26,326

 

1,149 

 

 

27,475

Six months ended June 30, 2010:

 

 

 

 

 

Revenues

$

493,250

$

1,466 

$

$

494,716

 

Income (loss) attributable to IDACORP, Inc.

 

57,049

 

(1,777)

 

 

55,272

Six months ended June 30, 2009:

 

Revenues

$

470,547

$

1,661 

$

$

472,208

 

Income attributable to IDACORP, Inc.

 

45,610

 

749 

 

 

46,359

 

36

 


 


 

 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and Shareholders of IDACORP, Inc.
Boise, Idaho

We have reviewed the accompanying condensed consolidated balance sheet of IDACORP, Inc. and subsidiaries (the “Company”) as of June 30, 2010, and the related condensed consolidated statements of income and comprehensive income for the three-month and six-month periods ended June 30, 2010 and 2009 and of equity and cash flows for the six-month periods ended June 30, 2010 and 2009.  These interim financial statements are the responsibility of the Company’s management.

We conducted our reviews in accordance with the standards of the Public Company Accounting Oversight Board (United States).  A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters.  It is substantially less in scope than an audit conducted in accordance with the standards of the Public Company Accounting Oversight Board (United States), the objective of which is the expression of an opinion regarding the financial statements taken as a whole.  Accordingly, we do not express such an opinion.

Based on our reviews, we are not aware of any material modifications that should be made to such condensed consolidated interim financial statements for them to be in conformity with accounting principles generally accepted in the United States of America.

We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheet of IDACORP, Inc. and subsidiaries as of December 31, 2009, and the related consolidated statements of income, comprehensive income, equity, and cash flows for the year then ended (not presented herein); and in our report dated February 23, 2010, we expressed an unqualified opinion on those consolidated financial statements, which included an explanatory paragraph related to the adoption of accounting guidance for noncontrolling interests in consolidated financial statements and guidance for accounting for uncertainty in income taxes.  In our opinion, the information set forth in the accompanying condensed consolidated balance sheet as of December 31, 2009 is fairly stated, in all material respects, in relation to the consolidated balance sheet from which it has been derived.

/s/ DELOITTE & TOUCHE LLP

Boise, Idaho
August 5, 2010

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

37

 


 


 

REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

To the Board of Directors and Shareholder of Idaho Power Company
Boise, Idaho

We have reviewed the accompanying condensed consolidated balance sheet and statement of capitalization of Idaho Power Company and subsidiary (the “Company”) as of June 30, 2010, and the related condensed consolidated statements of income and comprehensive income for the three-month and six-month periods ended June 30, 2010 and 2009, and of cash flows for the six-month periods ended June 30, 2010 and 2009.  These interim financial statements are the responsibility of the Company’s management.

We conducted our reviews in accordance with the standards of the Public Company Accounting Oversight Board (United States).  A review of interim financial information consists principally of applying analytical procedures and making inquiries of persons responsible for financial and accounting matters.  It is substantially less in scope than an audit conducted in accordance with the standards of the Public Company Accounting Oversight Board (United States), the objective of which is the expression of an opinion regarding the financial statements taken as a whole.  Accordingly, we do not express such an opinion.

Based on our reviews, we are not aware of any material modifications that should be made to such condensed consolidated interim financial statements for them to be in conformity with accounting principles generally accepted in the United States of America.

We have previously audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheet and statement of capitalization of Idaho Power Company and subsidiary as of December 31, 2009, and the related consolidated statements of income, comprehensive income, retained earnings, and cash flows for the year then ended (not presented herein); and in our report dated February 23, 2010, we expressed an unqualified opinion on those consolidated financial statements, which included an explanatory paragraph related to the adoption of guidance for accounting for uncertainty in income taxes.  In our opinion, the information set forth in the accompanying condensed consolidated balance sheet and statement of capitalization as of December 31, 2009 is fairly stated, in all material respects, in relation to the consolidated balance sheet and statement of capitalization from which it has been derived.

/s/ DELOITTE & TOUCHE LLP

Boise, Idaho
August 5, 2010

 

 

 

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  ITEM 2.  MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

(Megawatt-hours (MWh) and dollar amounts, other than earnings per share, are in thousands unless otherwise indicated).

INTRODUCTION

 

In Management’s Discussion and Analysis of Financial Condition and Results of Operations (MD&A), the general financial condition and results of operations for IDACORP, Inc. and its subsidiaries (collectively, IDACORP) and Idaho Power Company and its subsidiary (collectively, Idaho Power) are discussed.

IDACORP is a holding company formed in 1998 whose principal operating subsidiary is Idaho Power.  IDACORP is subject to the provisions of the Public Utility Holding Company Act of 2005, which provides certain access to books and records to the Federal Energy Regulatory Commission (FERC) and state utility regulatory commissions and imposes certain record retention and reporting requirements on IDACORP.  IDACORP’s common stock is listed and trades on the New York Stock Exchange under the trading symbol “IDA.”

Idaho Power is an electric utility with a service territory covering approximately 24,000 square miles in southern Idaho and eastern Oregon.  Idaho Power provided electric service to 490,470 general business customers as of June 30, 2010.  Idaho Power is regulated by the FERC and the state regulatory commissions of Idaho and Oregon.  Idaho Power is the parent of Idaho Energy Resources Co. (IERCo), a joint venturer in Bridger Coal Company (BCC), which mines and supplies coal to the Jim Bridger generating plant owned in part by Idaho Power.  Idaho Power generates revenues and cash flows primarily from the sale and distribution of electricity to customers in its Oregon and Idaho service territory, as well as from the wholesale sale and transmission of electricity.  Idaho Power’s revenues and income from operations are subject to fluctuations during the year due to the impacts of seasonal weather conditions on demand for electricity, price changes, customer usage patterns (which are affected in large part by the condition of the local economy), and the availability and price of purchased power and fuel.  Idaho Power is a dual peaking utility that typically experiences its highest retail energy sales during the summer irrigation and cooling season, with a lower peak in the winter that generally results from heating demand.  IDACORP’s and Idaho Power’s financial condition is also affected by regulatory decisions, through which Idaho Power seeks to recover its costs, including purchased power and fuel costs, on a timely basis, and to earn an authorized return on investment, and by the ability to obtain financing through the issuance of debt and/or equity securities.

IDACORP’s other subsidiaries include IDACORP Financial Services, Inc. (IFS), an investor in affordable housing and other real estate investments; Ida-West Energy Company (Ida-West), an operator of small hydroelectric generation projects that satisfy the requirements of the Public Utility Regulatory Policies Act (PURPA); and IDACORP Energy (IE), a marketer of energy commodities, which wound down operations in 2003.

While reading the MD&A, please refer to the accompanying condensed consolidated financial statements of IDACORP and Idaho Power.  This discussion updates the MD&A included in the Annual Report on Form 10-K for the year ended December 31, 2009, and the Quarterly Report on Form 10-Q for the quarter ended March 31, 2010, and should be read in conjunction with the discussions in those reports.

FORWARD-LOOKING INFORMATION

 

In addition to the historical information contained in this report, this report includes forward-looking statements.  In connection with the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, IDACORP and Idaho Power are hereby filing cautionary statements identifying important factors that could cause actual results to differ materially from those projected in forward-looking statements, made by or on behalf of IDACORP or Idaho Power in this report, in presentations, in response to questions or otherwise.  Any statements that express, or involve discussions as to expectations, beliefs, plans, objectives, assumptions or future events or performance, often, but not always, through the use of words or phrases such as "anticipates," "believes," "estimates," "expects," "intends," "plans," "predicts," "projects," "may result," "may continue," or similar expressions, are not statements of historical facts and may be forward-looking.  Forward-looking statements are not guarantees of future performance and involve estimates, assumptions, risks, and uncertainties and are qualified in their entirety by reference to, and are

39

 


 


 

 

 

 

accompanied by, the following important factors that could cause actual results or outcomes to differ materially from those expressed.  In addition to any assumptions and other factors and matters referred to specifically in connection with such forward-looking statements, factors that could cause actual results or outcomes to differ materially from those discussed in forward-looking statements include those factors discussed in IDACORP’s and Idaho Power’s 2009 Annual Report on Form 10-K, particularly Item 1A – “Risk Factors,” as updated by Part II, Item 1A of this Quarterly Report on Form 10-Q, and the following important factors:

  • The effect of regulatory decisions by the Idaho Public Utilities Commission, the Oregon Public Utility Commission, and the Federal Energy Regulatory Commission affecting Idaho Power’s ability to recover costs and/or earn a reasonable rate of return, including, but not limited to, the disallowance of costs that have been deferred, financings, allowed rates of return, electricity pricing and price structures, acquisition and disposal of assets and facilities, and current or prospective wholesale and retail competition;
  • Changes in and compliance with state and federal laws, policies, and regulations, including new interpretations by regulatory and oversight bodies, which include the Federal Energy Regulatory Commission, the North American Electric Reliability Corporation, the Western Electricity Coordinating Council, the Idaho Public Utilities Commission, the Oregon Public Utility Commission, and the Department of Energy of existing policies and regulations that affect the cost of compliance, investigations and audits, penalties, and costs of remediation that may or may not be recoverable through rates;
  • Changes in tax laws or related regulations or new interpretations of applicable law by the Internal Revenue Service or state and local taxing jurisdictions, and the availability and use by IDACORP or Idaho Power of any tax credits;
  • Litigation and regulatory proceedings, including those resulting from the energy situation in the western United States and the Snake River Basin water rights adjudication, and penalties, settlements, or awards that influence business and profitability;
  • Changes in and costs of compliance with laws, regulations, and policies relating to the environment, natural resources, and endangered species and the adoption of laws and regulations addressing greenhouse gas emissions, global climate change, and energy policies, particularly with respect to coal-fired generation facilities, intended to mitigate carbon dioxide, mercury, and other emissions;
  • Global climate change and regional weather variations affecting customer demand and hydroelectric generation;
  • Over-appropriation of surface and groundwater in the Snake River Basin, including proposals for use of water in the Snake River Basin for aquifer recharge, resulting in reduced generation at hydroelectric facilities;
  • Construction of power generation, transmission and distribution facilities, including an inability to obtain required governmental permits and approvals, rights-of-way and siting, and risks related to contracting, construction, and start-up;
  • Delays and cost increases in connection with the construction or modification of generating facilities and other capital projects, which could result in the disallowance of recovery of certain costs pursuant to the rate determination process;
  • Operation of power generating facilities, including performance below expected levels, breakdown or failure of equipment, forced outages, availability of electrical transmission capacity, and the availability of water, natural gas, coal, and diesel, wind conditions, and their associated delivery infrastructures;
  • Changes in operating expenses and capital expenditures, including costs and availability of materials, fuel, and commodities, and their impact on Idaho Power’s ability to meet required loads and on the wholesale energy market in the western United States;
  • Blackouts or other disruptions of Idaho Power’s transmission system or the western interconnected transmission system;
  • Population growth rates and changes in residential, commercial, and industrial growth and demographic patterns within the service area;
  • The continuing effects of weak economies in the states of Idaho and Oregon and in the United States, including decreased demand for electricity and reduced revenue from sales of excess energy during periods of low wholesale market prices, impaired financial soundness of vendors and service providers, and elevated levels of uncollectible customer accounts;
  • Market prices and demand for energy, including structural market changes;

 

40

 


 


  • Reductions in credit ratings, which could adversely impact access to capital markets and would require the posting of additional collateral to counterparties pursuant to existing power purchase and other arrangements;
  • Increases in uncollectible customer receivables, and the effectiveness of Idaho Power’s risk management policies concerning the creditworthiness of third parties;
  • Results of financing efforts, including the ability to obtain financing or refinance existing debt when necessary or on favorable terms, which can be affected by factors such as credit ratings, volatility in the financial markets, and other economic conditions;
  • Performance of the stock market, interest rates, credit spreads, inflation, and other financial market conditions, as well as changes in government regulations, which affect, among other things, the cost of capital and the ability to access the capital markets, indebtedness obligations, the amount and timing of required contributions to pension plans, and the reported costs of providing pension and other postretirement benefits;
  • Increases in health care costs and the resulting effect on medical benefits paid for employees;
  • Increasing costs of insurance, changes in coverage terms, and the ability to obtain insurance;
  • The occurrence of events that affect homeland security, and acts of war or terrorism;
  • Weather and other natural phenomena such as earthquakes, floods, droughts, lightning, wind and fire, which, in addition to affecting customer demand for power, could significantly affect the ability and cost to procure adequate supplies of fuel or power to serve customers, and could increase the costs to maintain generating facilities and transmission and distribution system;
  • Adoption of or changes in accounting policies, principles, or estimates;
  • Unionization, or the attempt to unionize, all or part of the companies’ workforce, and the resulting effects on production, profitability, and operations; and
  • New accounting or Securities and Exchange Commission or New York Stock Exchange requirements, or new interpretations or application of existing requirements.

 

Any forward-looking statement speaks only as of the date on which such statement is made.  New factors emerge from time to time and it is not possible for management to predict all such factors, nor can it assess the impact of any such factor on the business or the extent to which any factor, or combination of factors, may cause results to differ materially from those contained in any forward-looking statement.

EXECUTIVE OVERVIEW

 

Second Quarter 2010 Financial Results

 

A summary of net income attributable to IDACORP, Inc. and earnings per diluted share for the three and six months ended June 30, 2010 and 2009 is as follows:

 

Three months ended

Six months ended

 

June 30,

June 30,

 

2010

2009

2010

2009

Net income attributable to IDACORP, Inc.

$

39,209

$

27,475

$

55,272

$

46,359

Average outstanding shares – diluted (000’s)

 

48,048

 

46,977

 

47,966

 

46,927

Earnings per diluted share

$

0.82

$

0.58

$

1.15

$

0.99

 

 

 

 

 

 

 

 

 

 

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The following table presents a reconciliation of net income attributable to IDACORP, Inc. for the period of three and six months ended June 30, 2009 to June 30, 2010 (items are in millions and are before tax unless otherwise noted):
 

 

 

Three months

Six months

 

 

 

ended

ended

Net income attributable to IDACORP, Inc. - June 30, 2009

 

 

$

27.5

 

 

$

46.4

Change in Idaho Power net income before taxes:

 

 

 

 

 

 

 

 

 

Rate and other regulatory changes, including power cost and

 

 

 

 

 

 

 

 

 

 

fixed cost adjustment mechanisms

$

(0.2)

 

 

$

8.8

 

 

 

Reduced sales volumes

 

(5.6)

 

 

 

(12.4)

 

 

 

Oregon 2007 excess power cost deferral recorded in 2009

 

(6.4)

 

 

 

(6.4)

 

 

 

Increased depreciation expense

 

(1.9)

 

 

 

(4.5)

 

 

 

Decreased life insurance gains

 

(0.5)

 

 

 

(3.8)

 

 

 

Change in earnings at BCC

 

2.6

 

 

 

(0.3)

 

 

 

Other

 

2.0

 

 

 

-

 

 

Additional accumulated deferred investment tax credit (ADITC)

 

 

 

 

 

 

 

 

 

amortization

 

(4.5)

 

 

 

-

 

 

Decrease in income tax expense excluding additional ADITC

 

 

 

 

 

 

 

 

 

amortization

 

27.0

 

 

 

30.0

 

 

Total increase in Idaho Power net income

 

 

 

12.5

 

 

 

11.4

Other net decreases, net of tax

 

 

 

(0.8)

 

 

 

(2.5)

 

Net income attributable to IDACORP, Inc. - June 30, 2010

 

 

$

39.2

 

 

$

55.3

 

 

 

 

 

 

 

 

 

 

A decrease in the estimated annual effective tax rate, primarily resulting from a tax accounting method change for repair-related expenditures on utility assets for the 2009 tax year, significantly impacted IDACORP’s and Idaho Power’s results for the second quarter of 2010.  For the quarter ended June 30, 2010, Idaho Power recorded an estimated net tax benefit of $25.2 million related to the cumulative effect of the method change (tax years 1999 through 2009) and has included an annual deduction estimate in its 2010 income tax provision, which resulted in a $3.6 million net tax benefit.  Idaho Power also increased its current liability for uncertain tax positions by $10.9 million.

Based on its current estimates, Idaho Power believes its return on equity in the Idaho retail jurisdiction will exceed 9.5 percent on year-end equity and does not expect the need to amortize additional ADITC for 2010 as allowed under a provision of the 2009 settlement agreement with the IPUC.  The agreement allows an additional amortization of up to $25 million of ADITC only if Idaho Power’s actual rate of return on year-end equity is below 9.5 percent.  As a result, Idaho Power reversed the $4.5 million of ADITC amortization recorded in the first quarter of 2010.  The reversal of ADITC in the second quarter of 2010 enables Idaho Power to carry over the credit to future periods, making them available to benefit customers or shareholders in the future.

Idaho Power’s operating income decreased $13 million for the quarter and $14 million for the year-to-date compared to the same periods of 2009, primarily due to reduced sales volumes.  Sales volumes were down four percent for the quarter and five percent year-to-date due to mild, wet weather, economic factors, and energy conservation.  Mild weather reduced electricity demand for heating and cooling, and wet weather decreased electricity demand for the operation of irrigation equipment, decreasing sales to irrigation customers 15 percent for the quarter and year-to-date.  Economic conditions in Idaho Power’s service area remained weak and Idaho Power attributes a portion of the reduced sales volumes to these conditions.  While there are some indicators of improvement, overall economic conditions in the service area have not recovered from the recession.  For instance, unemployment rates are still high relative to historic unemployment levels and customer growth was modest during the second quarter of 2010.  Volume decreases were partially offset by the fixed cost adjustment (FCA) mechanism and lower power supply costs.

Idaho Power's operating income also decreased due to a $6.4 million Oregon excess power cost recovery recorded in 2009 that did not recur in 2010.  Depreciation expense increased primarily due to the conversion to Advanced Metering Infrastructure (AMI).  Idaho Power has accelerated depreciation expense for non-AMI meters and is collecting an offsetting amount in revenues.

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Other income was impacted by lower life insurance benefits as gains recorded in 2009 that did not recur in 2010.  Earnings at BCC increased $3 million for the quarter and remained nearly the same year-to-date due to a change in coal pricing and an increase in coal deliveries.

Earnings at IDACORP’s non-regulated subsidiaries and the holding company declined $0.8 million for the quarter and $2.5 million year-to-date due to the effects of intra-period tax allocations.  IDACORP estimates its consolidated group annual effective income tax rate at the holding company in accordance with interim reporting requirements.  The estimated annual rate was used in determining income tax expense for the quarter and resulted in an intra-period allocation of expense.

Regulatory Matters

 

Idaho Power has a number of pending or recently completed regulatory filings and resulting orders, including the following:

Idaho Settlement Agreement:  In January 2010, the IPUC approved a settlement agreement among Idaho Power, several of Idaho Power’s customers, the IPUC Staff, and others with respect to rates for 2009 through 2011.  The agreement contains four important elements:  (1) a general rate freeze until January 1, 2012, with some exceptions; (2) a specified distribution of the expected 2010 PCA decrease to directly reduce customer rates, providing some general rate relief to Idaho Power and resetting base level power supply costs for the PCA going forward; (3) use of investment tax credits to get to a 9.5 percent return on equity in the Idaho jurisdiction; and (4) an equal sharing of any Idaho earnings exceeding the authorized return on equity of 10.5 percent.

Idaho 2010 PCA Filing:  On May 28, 2010, the IPUC issued an order approving a $146.9 million decrease in the 2010 PCA, along with a base rate increase of $88.7 million, both effective June 1, 2010.  The net effect of these two rate adjustments is an overall decrease in customer rates of $58.2 million, or 6.49 percent.

Other Idaho 2010 Filings:  On May 28, 2010, Idaho Power received the following rate orders from the IPUC, each with an effective date of June 1, 2010:

•         Fixed Cost Adjustment :  The IPUC approved Idaho Power's March 2010 request to implement an an estimated $3.6 million annual increase over current rates to residential and small general service customers for electric service from June 1, 2010 through May 31, 2011.

•         Pension :  The IPUC approved Idaho Power’s March 2010 request to increase rates by 0.77 percent, or $5.4 million, for recovery of Idaho Power’s pension plan contribution, and Idaho Power began amortizing the related costs in June 2010.  In its order, the IPUC stated that the allowance of recovery of the 2009 pension plan contribution does not guarantee that the IPUC will similarly approve future recovery of pension contributions without further justification.

•         Advanced Metering Infrastructure :  The IPUC approved Idaho Power’s March 2010 application requesting authority to implement a 0.41 percent average increase (representing a 0.33 percent overall increase), or an increase of $2.4 million, in rates for identified customer classes to recover costs relating to the AMI project.

 

Oregon 2009 General Rate Case:   On February 24, 2010, the OPUC approved a $5 million, or 15.4 percent, increase in base rates.  The new rates were effective March 1, 2010, and are based on a return on equity of 10.175 percent and an overall rate of return of 8.061 percent.

Oregon Power Cost Recovery Mechanisms:  On May 24, 2010, the OPUC approved the 2010 annual power cost update (APCU) rate adjustment for Oregon customers.  The 2010 APCU resulted in a $2.2 million, or 5.53 percent, annual increase in Oregon rates, effective June 1, 2010.

Annual OATT Update:   On June 1, 2010, Idaho Power posted its annual Draft Informational Filing (DIF) for its open access transmission tariff (OATT).  The new draft rate is $19.60 per kW/yr, an increase of 23.8 percent over the present OATT rate of $15.83 per kW/yr.

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For a more complete discussion of regulatory proceedings, refer to Note 3 -”Regulatory Matters” to the condensed consolidated financial statements included in this report and “REGULATORY MATTERS” below.

Liquidity

 

IDACORP and Idaho Power expect to continue financing capital requirements with a combination of internally generated funds and externally financed capital.  In the second quarter of 2010, Idaho Power received approvals from its state regulatory commissions for the issuance of up to an aggregate of $500 million of additional first mortgage bonds and debt securities.  On May 12, 2010, Idaho Power filed a shelf registration statement with the SEC for the sale of up to $500 million of first mortgage bonds and debt securities.  The SEC declared the registration statement effective on May 25, 2010.  To facilitate the issuance of the securities, on June 17, 2010, Idaho Power entered into a selling agency agreement in connection with the potential issuance and sale of up to $500 million aggregate principal amount of first mortgage bonds under Idaho Power’s Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937, as amended and supplemented.

Capital Requirements:  Idaho Power is in a period of significant infrastructure development and has several major projects in development.  The most significant projects are summarized here and are discussed further in “LIQUIDITY AND CAPITAL RESOURCES – Capital Requirements.”


Langley Gulch Power Plant:  Langley Gulch is a natural gas-fired combined cycle combustion turbine (CCCT) generating plant with a summer nameplate capacity of approximately 300 megawatts (MWs) and a winter capacity of approximately 330 MW.  Construction of the plant is underway.  The total cost estimate for the project including allowance for funds used during construction (AFUDC) is $427 million, $102 million of which Idaho Power has incurred through June 30, 2010.

  • Transmission Projects:  Idaho Power and PacifiCorp are pursuing the joint development of the Boardman-Hemingway Line, a proposed 500-kiloVolt (kV) line between a station near Boardman, Oregon, and the Hemingway station, near Boise, Idaho.  Idaho Power estimates total construction costs of $600 million and expects its share of the project to be between 30 and 50 percent.    Idaho Power and PacifiCorp are also pursuing the joint development of Gateway West, a project to build transmission lines between Windstar, a station located near Douglas, Wyoming, and the Hemingway station.  The current estimated cost for Idaho Power’s share of the project is between $300 million and $500 million.

  • Transmission Equipment Purchase and Sale and Joint Ownership and Operating Agreements:  On April 30, 2010, Idaho Power entered into a Joint Purchase and Sale Agreement with PacifiCorp, pursuant to which Idaho Power agreed to sell to PacifiCorp a 59.0 percent interest in the 500-kV portions of transmission-related and interconnection equipment located at Idaho Power’s Hemingway station near Boise, Idaho; and PacifiCorp agreed to sell to Idaho Power a 20.8 percent interest in the 345-kV portions of transmission-related and interconnection equipment located at PacifiCorp’s Populus station.  On May 3, 2010, the closing date of the purchase and sale, Idaho Power and PacifiCorp also entered into two Joint Ownership and Operating Agreements for the Hemingway and Populus stations, which set forth terms pertaining to the construction, joint ownership, and operation of transmission and interconnection facilities at those stations.

  • AMI / Smart Grid (American Recovery and Reinvestment Act of 2009 (ARRA)):  Under the ARRA, in April 2010 Idaho Power finalized the grant of $47 million from the Department of Energy (DOE).  This grant will match a $47 million investment by Idaho Power in smart grid AMI technology.  Billings on this reimbursement contract began in May 2010 and are expected to occur monthly over the estimated three-year term of the grant.

Other Issues

 

Water Management Issues:   Power generation at the Idaho Power hydroelectric power plants on the Snake River depends on the state water rights held by Idaho Power and the long-term sustainability of the Snake River, tributary spring flows, and the Eastern Snake Plain Aquifer (ESPA).  Idaho Power continues to participate in water management issues in Idaho that may affect those water rights and resources.  For a further discussion of water management issues see “LEGAL MATTERS – Snake River Basin Water Rights.”

 

44

 


 


Environmental Matters:  Long-term climate change could significantly affect Idaho Power’s business, and climate change regulations are expected to have major implications for Idaho Power and the energy industry.  Idaho Power has established guidelines with goals to reduce the carbon dioxide (CO 2 ) emission intensity of its utility operations, intended to further prepare Idaho Power for potential legislative and/or regulatory restrictions on greenhouse gas (GHG) emissions while minimizing the costs of complying with such restrictions on Idaho Power’s customers.  Idaho Power’s thermal facilities are subject to federal and/or state-promulgated (1) ambient air quality standards, including those for ozone and fine particulate matter, (2) laws and regulations limiting mercury emissions, (3) regional haze – best available retrofit technology requirements, and (4) new source review and performance standards.  Idaho Power’s environmental compliance costs will continue to be significant for the foreseeable future and could increase substantially, particularly in light of proposed additional regulation at the federal and state levels.  These issues are discussed in more detail in “ENVIRONMENTAL ISSUES” below.

Boardman Coal Plant:   On April 2, 2010, Portland General Electric Company (PGE) submitted a petition to the Oregon Environmental Quality Commission (OEQC) seeking rule revisions to allow the utility to meet new environmental standards by closing the Boardman power plant in 2020.  This petition was rejected by the OEQC on June 17, 2010 at the recommendation of the Oregon Department of Environmental Quality (ODEQ).  On June 28, 2010, the ODEQ proposed new Boardman early closure options to the OEQC.  One of the options calls for the closure of the plant as early as 2015.  Idaho Power is a ten percent owner of the Boardman plant, representing 64 MW of nameplate capacity.  Idaho Power is evaluating the current proposals and discussing with PGE the options and the advisability of closing the Boardman plant.  At June 30, 2010, Idaho Power’s net book value in the Boardman plant was approximately $20 million with annual depreciation of approximately $1.2 million.

Health Care Acts: The Patient Protection and Affordable Care Act and the related Health Care and Education Reconciliation Act were enacted in March 2010.  The enactment of the legislation required Idaho Power to record a $0.9 million charge to income tax expense in the first quarter of 2010.  Idaho Power is evaluating what other impacts, if any, the health care legislation may have on its and IDACORP’s future results of operations, cash flows, or financial positions, and if benefit plan structure changes may be necessary.  For a more complete discussion of the health care legislation, refer to Note 10 - “Benefit Plans” to the condensed consolidated financial statements included in this report.

Pension Funding Legislation :  In June 2010, the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010 was signed into law.  Under the Relief Act, Idaho Power could, for any two plan years between 2008 and 2011, elect to amortize certain pension funding shortfalls over a 15 year period or pay interest only on the applicable plan years’ funding shortfall for two plan years followed by amortization of the shortfall for seven years.  Were Idaho Power to make one of these elections, it would reduce near-term required contributions to the plan by spreading them over a longer time period.  Idaho Power continues to evaluate the new legislation and its potential impacts, but has not yet determined which, if any, of these options it will choose.

Key Operating and Financial Metrics

 

IDACORP’s and Idaho Power’s outlook for 2010 full year metrics is set forth below:

 

2010 Estimates

 

Current

Previous

Idaho Power Operation & Maintenance Expense (millions)

No change

$295-$305

Idaho Power Capital Expenditures (millions) (1)

No change

$355-$365

Idaho Power Hydroelectric Generation (million MWh) (2)

7.0-8.0

6.5-8.5

Non-regulated subsidiary earnings and holding company expenses (millions) (3)

No change

$0-$3.0

(1)   The range for capital expenditures includes amounts for the Langley Gulch power plant, the Hemingway-Bowmont transmission line, the Hemingway station, and expenditures for the siting and permitting of major transmission expansions for the Boardman to Hemingway and Gateway West transmission projects.  The range does not include $47 million awarded to Idaho Power from the Department of Energy through the American Recovery and Reinvestment Act of 2009.

(2)    The range of estimated hydroelectric generation has been revised to reflect actual hydroelectric generation through June and estimated ranges of hydroelectric generation for the remainder of the year. 

(3)    For the six months ended June 30, 2010, non-regulated earnings and holding company expenses resulted in a net loss of $2.5 million, primarily due to the impact of intra-period tax allocation at the holding company.  IDACORP expects that combined earnings and holding company expenses will be in the range of breakeven to a positive $3.0 million by year end.

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RESULTS OF OPERATIONS

 

This section of the MD&A takes a closer look at the significant factors that affected IDACORP’s and Idaho Power’s earnings during the three and six months ended June 30, 2010.  In this analysis, the results for 2010 are compared to the same periods in 2009.

The following table presents net income (losses) for IDACORP and its subsidiaries for the three and six months ended June 30, 2010 and 2009:

 

Three months ended

Six months ended

 

June 30,

June 30,

 

2010

2009

2010

2009

Idaho Power – Utility operations

$

38,828 

$

26,326 

$

57,049 

$

45,610 

IDACORP Financial Services

 

102 

 

188 

 

63 

 

329 

Ida-West Energy

 

1,010 

 

1,384 

 

1,188 

 

1,572 

IDACORP Energy

 

(45)

 

(29)

 

152 

 

(48)

Holding company

 

(686)

 

(394)

 

(3,180)

 

(1,104)

 

Net income attributable to IDACORP, Inc.

$

39,209 

$

27,475 

$

55,272 

$

46,359 

Average common shares outstanding (diluted, in 000’s)

 

48,048 

 

46,977 

 

47,966 

 

46,927 

Earnings per diluted share

$

0.82 

$

0.58 

$

1.15 

$

0.99 

 

 

 

 

 

Utility Operations

 

The table below presents Idaho Power’s energy sales and supply (in thousands of MWhs) for the three and six months ended June 30, 2010 and 2009:

 

 

Three months ended

Six months ended

 

 

June 30,

June 30,

 

 

2010

2009

2010

2009

General business sales

3,127 

3,256 

6,236 

6,535 

Off-system sales

601 

1,095 

1,367 

1,672 

 

Total energy sales

3,728 

4,351 

7,603 

8,207 

Hydroelectric generation

2,298 

2,976 

4,200 

4,561 

Coal generation

1,154 

1,108 

3,027 

3,065 

Natural gas and other generation

18 

13 

21 

22 

 

Total system generation

3,470 

4,097 

7,248 

7,648 

Purchased power

579 

539 

974 

1,200 

Line losses

(321)

(285)

(619)

(641)

 

Total energy supply

3,728 

4,351 

7,603 

8,207 

 

 

 

 

 

 

 

Because of its reliance on hydroelectric generation, Idaho Power’s generation operations can be significantly affected by water conditions.  The availability of hydroelectric power depends on the amount of snow pack in the mountains upstream of Idaho Power’s hydroelectric facilities, reservoir storage, springtime snow pack run-off, river base flows, spring flows, rainfall, amount and timing of water leases, and other weather and stream flow management considerations.  During low water years, when stream flows into Idaho Power’s hydroelectric projects are reduced and reservoir storage is low, Idaho Power’s hydroelectric generation is generally reduced.  This results in less generation from Idaho Power’s resource portfolio available for off-system sales and, generally, an increased use of purchased power to meet load requirements.  Both of these situations, a reduction in off-system sales and an increased use of more expensive purchased power, result in increased power supply costs.  While the cost of purchased power is typically higher than the cost of hydroelectric generation, the incremental cost is included in regulatory mechanisms that allow Idaho Power to recover most of these costs.

46

 


 


For the three months ended June 30, 2010, hydroelectric generation comprised 66 percent of Idaho Power’s total system generation and 57 percent of its total energy supply.  For the three months ended June 30, 2010, Idaho Power’s hydroelectric generation decreased 23 percent over the same period of 2009 due to a significantly lower than average snowpack and resulting spring runoff.  Snowpack was 69 percent of average in 2010 compared to 94 percent of average in 2009.  Based on current reservoir levels, forecasted stream flow, and other conditions relevant to its estimate of hydroelectric generation capacity, Idaho Power expects to generate between 7.0 and 8.0 million MWh from its hydroelectric facilities in 2010, compared to 8.1 million MWh in 2009.  Idaho Power’s modeled median annual hydroelectric generation is 8.6 million MWh, based on hydrologic conditions for the period 1928 through 2009 and adjusted to reflect the current level of water resource development.

Idaho Power’s system is dual peaking, with the larger peak demand occurring in the summer.  The highest summer peak demand of 3,214 MW was set on June 30, 2008, and the highest winter peak demand of 2,527 MW was set on December 10, 2009.  During these and other similar heavy load periods Idaho Power’s system is fully committed to serve loads and meet required operating reserves.

General business revenue:   The following tables present Idaho Power’s general business revenues, MWh sales, number of customers, and Boise, Idaho weather conditions for the three and six months ended June 30, 2010 and 2009:

 

 

Three months ended

Six months ended

 

 

June 30,

June 30,

 

 

2010

2009

2010

2009

Revenue

 

 

 

 

 

 

 

 

 

Residential

$

83,970 

$

77,757 

$

195,565 

$

184,204 

 

Commercial

 

55,593 

 

53,415 

 

113,524 

 

104,957 

 

Industrial

 

33,950 

 

33,307 

 

70,068 

 

64,352 

 

Irrigation

 

33,111 

 

36,106 

 

33,787 

 

36,676 

 

Deferred revenue related to Hells

 

 

 

 

 

 

 

 

 

 

Canyon relicensing AFUDC

 

(2,347)

 

(2,370)

 

(4,922)

 

(4,047)

 

 

Total

$

204,277 

$

198,215 

$

408,022 

$

386,142 

MWh

 

 

 

 

 

 

 

 

 

Residential

 

1,043 

 

1,048 

 

2,442 

 

2,582 

 

Commercial

 

879 

 

894 

 

1,811 

 

1,851 

 

Industrial

 

729 

 

755 

 

1,500 

 

1,536 

 

Irrigation

 

476 

 

559 

 

483 

 

566 

 

 

Total

 

3,127 

 

3,256 

 

6,236 

 

6,535 

Customers (average)

 

 

 

 

 

 

 

 

 

Residential

 

407,145 

 

404,590 

 

406,947 

 

404,499 

 

Commercial

 

64,326 

 

64,113 

 

64,301 

 

64,097 

 

Industrial

 

126 

 

126 

 

127 

 

125 

 

Irrigation

 

18,637 

 

18,800 

 

18,619 

 

18,666 

 

 

Total

 

490,234 

 

487,629 

 

489,994 

 

487,387 

Customers (period end)

 

 

 

 

 

 

 

 

Residential

 

 

 

 

 

407,310 

 

404,804 

Commercial

 

 

 

 

 

64,371 

 

64,115 

Industrial

 

 

 

 

 

124 

 

127 

Irrigation

 

 

 

 

 

18,665 

 

18,859 

 

 

Total

 

 

 

 

 

490,470 

 

487,905 

Heating degree-days (1)

 

885 

 

641 

 

3,041 

 

3,173 

Cooling degree-days (2)

 

107 

 

208 

 

107 

 

208 

Precipitation (inches) (3)

 

4.69 

 

3.24 

 

8.62 

 

5.57 

(1)    Heating and cooling degree-days are common measures used in the utility industry to analyze the demand for electricity.  They indicate when a customer would likely use electricity for heating and air conditioning.  A degree-day measures how much the average of the daily high and low temperature varies from 65 degrees.  Each degree of temperature above 65 degrees is counted as one cooling degree-day, and each degree of temperature below 65 degrees is counted as one heating degree-day.  Normal heating degree-days for the quarter and year-date are 767 and 3,341 degree days, respectively.

(2)    Normal cooling degree-days for the quarter and year-to-date are both 156.

(3)    Normal precipitation for the quarter and year-to-date is 3.31 and 7.00 inches, respectively.

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As part of its February 1, 2009 general rate case order, the IPUC allowed Idaho Power to recover AFUDC for the Hells Canyon Complex (HCC) relicensing asset even though the relicensing process is not yet complete and the relicensing asset has not been placed in service.  Idaho Power expects to collect approximately $10.6 million annually, but will defer revenue recognition of the amounts collected until the license is issued and the relicensing asset is placed in service.  This deferral offset revenues by approximately $2 million for the second quarter of 2010 and $5 million for the year-to-date.

General business revenue increased $6 million for the second quarter of 2010 and $22 million year-to-date compared to the same periods in 2009.  This increase is primarily attributable to the effects of rate changes and was partially offset by a reduction in customer usage due largely to weather conditions that decreased power demand.

  • Rates:  Rate changes positively impacted general business revenue by $14 million for the quarter and $41 million year-to-date.  Base rates changes increased revenues $13 million for the quarter and $22 million year-to-date.  PCA rates changes had a minimal effect on revenues for the quarter, but increased revenues $19 million for the year-to-date.  The following table presents notable rate increases and decreases, shown on an annualized basis, that affected the periods:

 

Percentage

 

Annualized

 

Effective

Rate Increase

 

$ Impact

Description

Date

(Decrease)

 

(millions)

2008 Idaho general rate case

2/01/2009

3.10% 

$

21 

2008 Idaho general rate case

3/19/2009

0.90% 

 

2009 Idaho PCA

6/01/2009

10.20% 

 

84 

2009 Idaho AMI

6/01/2009

1.80% 

 

11 

2009 Oregon general rate case settlement

3/01/2010

15.40% 

 

2010 Idaho settlement

6/01/2010

9.89% 

 

89 

2010 Idaho PCA

6/01/2010

(16.35%)

 

(147)

2010 Idaho Pension Expense Recovery

6/01/2010

0.77% 

 

2010 Idaho AMI

6/01/2010

0.41% 

 

2010 Idaho FCA

6/01/2010

0.90%

 

2010 Oregon Power Cost Update

6/01/2010

5.53% 

 

 

As many of the rate changes that positively impacted the results for the second quarter of 2010 were effective beginning in June, and thus were effective for only one month of the second quarter, Idaho Power expects the favorable rate changes to have a greater positive impact during subsequent periods.

 

  • Customers:  Slow growth in customer count contributed to a minimal increase in general business revenue for the quarter and a $2 million increase year-to-date.

  • Usage:   Changes in usage reduced general business revenue $8 million for the quarter and $21 million for the year-to-date due primarily to weather and, to a lesser extent, energy conservation and economic factors.  Sales to irrigation customers declined 15 percent for the quarter and for the year-to-date due to increased precipitation and milder temperatures.  Increased precipitation levels during the agricultural growing season, which includes the second quarter, reduce electricity sales to irrigators due to reduced use of electricity to operate irrigation pumps.  Mild temperatures contributed to the decreased usage by residential, commercial, and industrial customers.  Year-to-date, total MWh sales, excluding irrigation customers, declined by 216 thousand MWh, or four percent, relative to the same period in 2009.  In addition, economic conditions in Idaho Power's service area remained weak, including a continued high unemployment rate in the area.  Idaho Power believes the decline in total MWh sales is due in part to the continued weakness of the economy in its service area. A slow economic recovery could result in continued low demand.

 

 

 

 

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Off-system sales:   Off-system sales consist primarily of long-term sales contracts and opportunity sales of surplus system energy.  The following table presents Idaho Power’s off-system sales for the three and six months ended June 30, 2010 and 2009:

 

Three months ended

Six months ended

 

June 30,

June 30,

 

2010

2009

2010

2009

Revenue

$

17,769

$

26,667

$

52,175

$

55,198

MWh sold

 

601

 

1,095

 

1,367

 

1,672

Revenue per MWh

$

29.57

$

24.35

$

38.17

$

33.01

 

 

 

 

 

 

 

 

 

 

Off-system sales revenue decreased $9 million, or 33 percent, for the second quarter of 2010 and $3 million, or six percent, year-to-date compared to the same periods of 2009 due to less favorable hydroelectric generating conditions, which reduced surplus power available for sale.

Other revenues:   The table below presents the components of other revenues for the three and six months ended June 30, 2010 and 2009:

 

Three months ended

Six months ended

 

June 30,

June 30,

 

2010

2009

2010

2009

Transmission services and property rental

$

9,979

$

8,963

$

19,254

$

16,476

Energy efficiency

 

8,765

 

8,673

 

13,799

 

12,731

 

Total

$

18,744

$

17,636

$

33,053

$

29,207

 

 

 

 

 

 

 

 

 

 

The increase in transmission services and property rental reflects new transmission rates implemented in October 2009.

Energy efficiency activities are funded through a rider mechanism on customer bills.  Energy efficiency program expenditures are reported as an operating expense with an equal amount of revenues recorded in other revenues, resulting in no net impact on earnings.  The cumulative variance between expenditures and amounts collected through the rider is recorded as a regulatory asset or liability pending future collection from or obligation to customers.  A liability balance indicates that Idaho Power has collected more than it has spent and an asset balance indicates that Idaho Power has spent more than it has collected.  For the year-to-date 2010, Idaho Power has increased its energy efficiency program expenses and matching revenues $1 million, and on June 30, 2010, Idaho Power’s rider balance was a regulatory asset of $9 million and is expected to grow to $17 million by year end due to continued planned expenditures on energy efficiency projects.

Purchased power:   The following table presents Idaho Power’s purchased power expenses and volumes for the three and six months ended June 30, 2010 and 2009:

 

Three months ended

Six months ended

 

June 30,

June 30,

 

2010

2009

2010

2009

Purchased power expense

$

30,349

$

26,867

$

51,523

$

60,568

MWh purchased

 

579

 

539

 

974

 

1,200

Cost per MWh purchased

$

52.42

$

49.85

$

52.90

$

50.47

 

 

 

 

 

 

 

 

 

 

Purchased power expense increased $3 million, or 13 percent, for the quarter due to less favorable hydroelectric generating conditions and decreased $9 million, or 15 percent, year-to-date compared to the same periods in 2009, due to lower system loads and greater reliance on financial hedges to mitigate potential changes in forecasted hydrologic conditions.

 

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Fuel expense:   The following table presents Idaho Power’s fuel expenses and generation at its thermal generating plants for the three and six months ended June 30, 2010 and 2009:

 

Three months ended

Six months ended

 

June 30,

June 30,

 

2010

2009

2010

2009

Expense

 

 

 

 

 

 

 

 

 

Coal

$

25,766

$

22,979

$

61,830

$

60,774

 

Natural gas and other

 

1,792

 

1,496

 

2,914

 

2,834

 

 

Total fuel expense

$

27,558

$

24,475

$

64,744

$

63,608

MWh generated

 

 

 

 

 

 

 

 

 

Coal

 

1,154

 

1,108

 

3,027

 

3,065

 

Natural gas and other

 

18

 

13

 

21

 

22

 

 

Total MWh generated

 

1,172

 

1,121

 

3,048

 

3,087

Cost per MWh

 

 

 

 

 

 

 

 

 

Coal

$

22.33

$

20.74

$

20.43

$

19.83

 

Natural gas and other

 

99.56

 

115.08

138.76

128.82

 

Weighted average, all sources

 

23.51

 

21.83

21.24

20.61

 

 

 

 

Fuel expense increased $3 million, or 13 percent, for the quarter and $1 million, or two percent year-to-date as compared to the same periods in 2009.  The Bridger plant increased its generation due to a shorter planned maintenance outage and had fewer economic shutdowns during the second quarter of 2010 than in the same period in 2009 due to improved market prices.  Partially offsetting this increase is a reduction in generation at the Valmy plant due to major planned maintenance in 2010 that did not occur in 2009.

PCA:   PCA expense represents the effects of the Idaho and Oregon power supply cost adjustment mechanisms.  The following table presents the components of the PCA for the three and six months ended June 30, 2010 and 2009:

 

Three months ended

Six months ended

 

June 30,

June 30,

 

2010

2009

2010

2009

Idaho power supply cost accrued (deferred)

$

3,444 

$

8,402 

$

23,282

$

(2,005)

Oregon power supply cost accrued (deferred)

 

549 

 

(6,358)

 

593

 

(6,358)

Amortization of prior year authorized balances

 

24,078 

 

24,718 

 

52,520

 

50,984 

 

Total power cost adjustment

$

28,071 

$

26,762 

$

76,395

$

42,621 

 

 

In 2010 and in the second quarter of 2009, power supply costs were below the amounts estimated in the annual PCA forecasts, resulting in a charge to expense (accrual).  For the first six months of 2009, power supply costs were above the PCA forecast, resulting in a credit to expense (deferral).  In addition, in the second quarter of 2009, Idaho Power recorded the effect of an order from the OPUC that allows Idaho Power to defer for future recovery $6.4 million of costs incurred in prior years.

Other operations and maintenance expenses:   Other operations and maintenance expense remained nearly the same for the quarter and increased $4 million year-to-date as compared to the same periods in 2009, primarily due to a $1.7 million increase in thermal O&M due to the timing and scope of maintenance outages and a $2 million increase in transmission O&M due to increased maintenance at stations.

Income Taxes

 

IDACORP’s and Idaho Power’s income tax expense for the three and six months ended June 30, 2010 decreased substantially relative to the same periods in 2010, primarily as a result of the tax accounting method change for repair-related expenditures on utility assets for the 2009 tax year.  For information relating to IDACORP’s and

50

 


 


Idaho Power’s computation of the estimated annual effective tax rate, see Note 2 – “Income Taxes” to the condensed consolidated financial statements included in this report.

An analysis of income tax expense for the three and six months ended June 30, 2010 and 2009 is as follows:

 

IDACORP

Idaho Power

 

2010

2009

2010

2009

Three months ended June 30,

Income tax provision

$

4,046 

$

5,175

$

5,859 

$

7,675

ADITC amortization reversal

 

4,512 

 

-

 

4,512 

 

-

Accounting method change

 

(25,187)

 

-

 

(25,187)

 

-

Income tax (benefit) expense

$

(16,629)

$

5,175

$

(14,816)

$

7,675

 

 

 

 

Effective tax rate

 

(73.6)%

 

15.8%

 

(61.7)%

 

22.6%

 

 

 

 

Six months ended June 30,

 

 

 

 

Income tax provision

$

8,960 

$

11,970

$

11,774 

$

17,447

Accounting method change

 

(25,187)

 

-

 

(25,187)

 

-

Medicare Part D subsidy

 

903 

 

-

 

903 

 

-

Income tax (benefit) expense

$

(15,324)

$

11,970

$

(12,510)

$

17,447

 

 

 

 

Effective tax rate

 

(38.4)%

 

20.5%

 

(28.1)%

 

27.7%

 

 

 

 

 

The decrease in the 2010 estimated annual effective tax rates from 2009 is primarily due to Idaho Power’s tax accounting method change for repair-related expenditures, and lower pre-tax earnings at IDACORP and Idaho Power, partially offset by a charge related to the federal health care legislation enacted in the first quarter of 2010.  Regulatory flow-through tax adjustments at Idaho Power and tax credits at IFS for the six months ended June 30, 2010 were comparable to the same period in 2009.

Based on Idaho Power’s current estimate of 2010 return on equity, Idaho Power does not expect to need to amortize additional ADITC for 2010.  Accordingly, the $4.5 million of additional ADITC amortization recorded in the first quarter of 2010 was reversed in the second quarter of 2010.  For further information regarding ADITC amortization, see “Idaho Settlement Agreement” in Note 3 – “Regulatory Matters” to the condensed consolidated financial statements included in this report.

Tax Accounting Method Change: In June 2010, Idaho Power completed its evaluation of a tax accounting method change for its 2009 tax year that would allow a current income tax deduction for repair-related expenditures on its utility assets that are currently capitalized for financial reporting and tax purposes.  Idaho Power intends to make this method change following the automatic consent procedures with the filing of IDACORP’s 2009 consolidated federal income tax return in September 2010.  For the quarter ended June 30, 2010, Idaho Power recorded an estimated net tax benefit of $25.2 million related to the cumulative method change adjustment (tax years 1999 through 2009) and has included an annual deduction estimate in its 2010 income tax provision, which resulted in a $3.6 million net tax benefit.  Idaho Power’s prescribed regulatory accounting treatment requires immediate income recognition for temporary tax differences of this type.  A regulatory asset is established to reflect Idaho Power’s ability to recover increased income tax expense when such temporary differences reverse.  Idaho Power expects to recognize cash tax benefits associated with the method change by the end of 2010 through offsets to current estimated tax payments and direct tax refunds.

In conjunction with recording the estimated tax benefit for the method change, Idaho Power also increased its current liability for uncertain tax positions by $10.9 million.  If recognized, the $10.9 million balance of unrecognized tax benefits would affect the effective tax rate.  The tax method is currently being audited under IDACORP’s 2009 Compliance Assurance Process (CAP) examination (discussed below) and, on a national level, aspects of the method related to electric utility transmission and distribution property are the subject of an Internal Revenue Service (IRS) Industry Issue Resolution program.

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Status of Audit Proceedings:  In May 2009, IDACORP formally entered the IRS CAP program for its 2009 tax year.  The CAP program provides for IRS examination throughout the year.  The 2009 examination is expected to be completed in 2010.  In January 2010, IDACORP was accepted into CAP for its 2010 tax year.  IDACORP and Idaho Power are unable to predict the outcome of these examinations.

Specifically within the 2009 CAP examination, the IRS began its audit of Idaho Power’s current method of uniform capitalization.  In September 2009, the IRS issued Industry Director Directive #5, which discusses the IRS’s compliance priorities and audit techniques related to the allocation of mixed service costs in the uniform capitalization methods of electric utilities.  Initial estimates indicate the potential income and cash benefits associated with settlement of this matter to be in excess of the repairs method change recorded in the second quarter.  Idaho Power expects that the examination of this method will be completed during the third quarter of 2010; however, the timing of final settlement with the IRS, and thereby the recognition of the income and cash impacts, has yet to be determined.  Resolution of this matter would also result in a $1.1 million decrease to Idaho Power’s unrecognized tax benefits for its 2009 uniform capitalization deduction.

Benefit Plan Related Legislation

 

Health Care Acts:  The Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act were enacted in March 2010.  As a result, Idaho Power incurred a charge of $0.9 million in the first quarter of 2010 and is evaluating what other impacts, if any, the health care legislation may have on its and IDACORP’s future results of operations, cash flows, or financial positions, and if benefit plan structure changes may be necessary.  In particular, Idaho Power is monitoring available guidance regarding a tax to be imposed on certain plans beginning in 2018, whereby premiums paid over a prescribed threshold will incur a non-deductible 40 percent excise tax.  See Note 10 - “Benefit Plans” to the condensed consolidated financial statements included in this report for additional information relating to Idaho Power’s health and welfare plans and post-retirement benefit obligations, and Note 2 - “Income Taxes” to the condensed consolidated financial statements included in this report for a discussion of the tax impacts of the health care acts.

LIQUIDITY AND CAPITAL RESOURCES:

 

Overall Liquidity

 

IDACORP’s and Idaho Power’s access to long-term and short-term debt markets, including their respective credit facilities, helps provide necessary liquidity to support Idaho Power’s operating activities.  Significant uses of cash flows from Idaho Power’s utility operations include the purchase of electricity, the purchase of fuel for power generation, and payment of other operating expenses, taxes, and interest, with any excess amount being available for other corporate uses such as capital expenditures and the payment of dividends.

Idaho Power utilizes operating and capital budgets to control operating costs and optimize capital expenditures.  Idaho Power seeks to recover its operating costs and earn a return on its capital expenditures through rates.  Idaho Power has continuing significant commitments for capital expenditures for construction, improvement, and maintenance of utility facilities.  Currently, Idaho Power is experiencing a cycle of heavy infrastructure investment, adding capacity to its baseload generation, transmission system, and distribution facilities in an effort to ensure an adequate supply of electricity, to provide service to new customers, and to maintain system reliability.  See “Capital Requirements” below for a discussion of certain of those projects.  As Idaho Power’s operating cash flows usually do not fully support the amount required for utility capital expenditures, particularly during periods of heavy infrastructure development as is presently occurring, Idaho Power from time to time needs to access capital markets in order to fund these needs as well as to fund maturing debt.

Operating Cash Flows

 

IDACORP’s operating cash flows are driven principally by Idaho Power.  General business revenues and the costs to supply power to general business customers have the greatest impact on Idaho Power’s operating cash flows, and are subject to risks and uncertainties relating to weather and water conditions, fuel costs and purchased power prices, the ability to collect from customers, and Idaho Power’s ability to obtain rate relief to cover its operating costs and provide a return on investment.

 

 

 

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IDACORP’s and Idaho Power’s operating cash inflows for the six months ended June 30, 2010, were $187 million and $167 million, respectively.  These amounts were increases of $77 million and $52 million, respectively, compared to the six months ended June 30, 2009.  The following are significant items that affected operating cash flows in the first six months of 2010:

  • An increase of $34 million from reductions in the PCA and the Oregon power cost adjustment mechanism (PCAM) regulatory assets, as Idaho Power deferred $32 million less of excess net power supply costs and collected an additional $2 million of previously deferred costs as compared with the first six months of 2009.
  • An increase of $22 million from the collection in 2010 of higher 2009 year end customer accounts receivable and unbilled revenue balances, primarily as a result of colder temperatures increasing sales in December 2009 as compared with the prior year.
  • An increase of $16 million related to payments in 2009 for power purchased in 2008.
  • An increase of $13 million due to refunds in the first quarter of 2009 made to Idaho Power’s transmission customers upon a final order from the FERC on Idaho Power’s OATT.
  • Net income for IDACORP and Idaho Power increased by $9 million and $11 million, respectively.
  • A partially offsetting decrease in cash flows from income taxes, as tax refunds received by IDACORP decreased $8 million and income tax payments made by Idaho Power to its parent in 2010 and refunds received from its parent in 2009 combined for a $34 million decrease for the six months ended June 30, 2010, as compared with the same period last year.

 

Pension Funding:   For at least the period 2011 to 2014, Idaho Power expects to make significant cash contributions to its pension plan and has significant obligations under other postretirement benefit plans.  The funded status of the pension and other post-retirement benefit obligations refers to the difference between plan assets and estimated obligation of the plan.  The calculation of funding requirements for pension plans requires election of a methodology to determine the actuarial value of assets and the interest rate used to measure the pension liabilities.  IDACORP and Idaho Power continuously monitor available and proposed pension funding guidance, and evaluate the potential impact on funding requirements and strategies.

In June 2010, the Preservation of Access to Care for Medicare Beneficiaries and Pension Relief Act of 2010 (Relief Act) was signed into law, which permits employers to choose between two alternative funding options for defined benefit pension plans for any two plan years between 2008 and 2011, either (i) amortizing the funding shortfall over 15 years or (ii) paying interest only on the applicable plan years’ funding shortfall for two plan years followed by amortization of the shortfall for seven years.  The legislation does not eliminate Idaho Power’s obligation to fully fund the pension plan.  The legislation also outlines penalties in the form of increased pension contributions from an employer that elects one of the funding relief options at the same time the employer (or entities within its ERISA controlled group) awards “excess employee compensation” (generally compensation over $1 million per year paid to an employee), grants “excessive” dividends, or effects specified stock redemptions.  Idaho Power continues to evaluate the new legislation and its potential impacts.  If one of these alternate funding options is elected, it would reduce near-term required contributions to the plan by spreading them over a longer time period.  See Note 10 - “Benefit Plans” to the condensed consolidated financial statements included in this report for additional information relating to Idaho Power’s pension plan funding and post-retirement benefit obligations, and Note 3 - “Regulatory Matters” to the condensed consolidated financial statements included in this report for a discussion of Idaho Power’s recovery of pension plan contributions through the ratemaking process.

Investing Cash Flows

 

Cash flows from investing activities consist primarily of capital expenditures related to new construction and improvements to Idaho Power’s distribution, transmission, and generation facilities.  IDACORP’s and Idaho Power’s investing cash outflows were $149 million and $143 million, respectively, for the six months ended June 30, 2010.  These amounts were an increase in outflows of $52 million and $44 million, respectively, compared to the six months ended June 30, 2009.  Investing cash outflows for 2010 were primarily for construction of utility infrastructure needed to address Idaho Power’s customer growth, peak demand growth, and aging plant and equipment.  Construction expenditures were partially offset by proceeds from the sale of $19 million of transmission-related assets to PacifiCorp.

 

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Financing Cash Flows

 

Financing activities provide supplemental cash for both day-to-day operations and capital requirements as needed.  Idaho Power funds liquidity needs for capital investment, working capital, energy and price hedging, and other financial commitments through cash flows from continuing operations, public debt offerings, commercial paper markets, and credit facilities.

IDACORP’s and Idaho Power’s financing cash outflows for the six months ended June 30, 2010, were $62 million and $20 million, respectively.  These amounts were an increase in outflows of $55 million and $13 million, respectively, compared to the six months ended June 30, 2009.  The financing cash outflows for 2010 were primarily for dividends paid by IDACORP and Idaho Power of $29 million and for the net repayment by IDACORP of $36 million of commercial paper.  In addition, Idaho Power received a capital contribution of $10 million from IDACORP.

Idaho Power has $120 million of first mortgage bonds that mature in the first quarter of 2011.  Idaho Power is evaluating various financing alternatives for the repayment of this debt.

Shelf Registrations:   IDACORP has approximately $574 million remaining on its shelf registration statement that can be used for the issuance of debt securities and common stock.  IDACORP has a sales agency agreement with BNY Mellon Capital Markets, LLC pursuant to which it may sell common stock from time to time in at-the-market offerings.  As of June 30, 2010, there were 2.1 million shares remaining available to be sold under the sales agency agreement.

In the second quarter of 2010, Idaho Power received approval from the IPUC, the OPUC, and the Public Service Commission of Wyoming for the issuance of up to $500 million in aggregate principal amount of one or more series of first mortgage bonds and unsecured debt securities.  The order from the IPUC approved the issuance of the securities over a two-year period, beginning on April 19, 2010, subject to extension upon request to the IPUC.  On May 12, 2010, Idaho Power filed a shelf registration statement with the SEC for the sale of up to $500 million of first mortgage bonds and debt securities.  The SEC declared the registration statement effective on May 25, 2010.  To facilitate the issuance of the debt, on June 17, 2010, Idaho Power entered into a Selling Agency Agreement with Banc of America Securities LLC; BNY Mellon Capital Markets, LLC; J.P. Morgan Securities Inc.; KeyBanc Capital Markets Inc.; Merrill Lynch, Pierce, Fenner & Smith Incorporated; Mitsubishi UFJ Securities (USA), Inc.; RBC Capital Markets Corporation; SunTrust Robinson Humphrey, Inc.; U.S. Bancorp Investments, Inc.; and Wells Fargo Securities, LLC in connection with the potential issuance and sale from time to time of up to $500 million aggregate principal amount of first mortgage bonds, secured medium-term notes, Series I, under Idaho Power’s Indenture of Mortgage and Deed of Trust, dated as of October 1, 1937, as amended and supplemented.  As of August 5, 2010, Idaho Power has not sold any first mortgage bonds or debt securities under the May 2010 shelf registration statement.

The issuance of first mortgage bonds requires that Idaho Power meet interest coverage and security provisions set forth in the Indenture of Mortgage and Deed of Trust securing the bonds.  Future issuance of first mortgage bonds are subject to satisfaction of covenants and security provisions set forth in the Indenture of Mortgage and Deed of Trust securing the bonds, market conditions, regulatory authorizations, or by covenants and tests contained in other financing agreements.  As a result of certain restrictions in the Indenture of Mortgage and Deed of Trust, as of June 30, 2010, Idaho Power could issue under the Indenture of Mortgage and Deed of Trust approximately $503 million of additional first mortgage bonds based on total unfunded property additions of approximately $839 million.  Idaho Power could issue an additional $612 million of first mortgage bonds based on retired first mortgage bonds.

Credit Facilities:   IDACORP and Idaho Power each have a five-year credit agreement that terminates on April 25, 2012, subject to one year extensions, to be used for general corporate purposes and commercial paper back-up, and that provide for the issuance of loans and standby letters of credit.  Each facility contains a covenant requiring a leverage ratio of consolidated indebtedness to consolidated total capitalization of no more than 65 percent as of the end of each fiscal quarter.  At June 30, 2010, the leverage ratios for IDACORP and Idaho Power were 50 percent and 52 percent, respectively.  IDACORP’s and Idaho Power's ability to utilize the credit facilities is subject to continued compliance with the leverage ratio covenants included in the credit facilities, which could limit the ability

 

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of the companies to issue first mortgage bonds and debt securities pursuant to current and future shelf registration statements.  At June 30, 2010, IDACORP and Idaho Power were in compliance with all facility covenants.

The following table outlines available liquidity as of the dates specified:

 

June 30, 2010

December 31, 2009

 

 

Idaho

 

Idaho

 

IDACORP (2)

Power

IDACORP (2)

Power

 

 

Revolving credit facility

$

100,000 

$

300,000 

$

100,000 

$

300,000 

Commercial paper outstanding

 

(17,500)

 

 

(53,750)

 

Identified for other use (1)

 

 

(24,245)

 

 

(24,245)

Net balance available

$

82,500 

$

275,755 

$

46,250 

$

275,755 

(1)   Port of Morrow and American Falls bonds that holders may put to Idaho Power.

(2)   Holding company only.

 

 

At July 31, 2010, IDACORP had no loans under its credit facility and $15 million of commercial paper outstanding, and Idaho Power had no loans under its credit facility and no commercial paper outstanding.

Impact of Credit Ratings on Liquidity

 

IDACORP’s and Idaho Power’s access to capital markets, including the commercial paper market, and their respective financing costs in those markets, may depend on the credit ratings of the entity that is accessing the capital markets.  The following table outlines the current ratings of Idaho Power’s and IDACORP’s securities, and the ratings outlook, by Standard & Poor’s Ratings Services, Moody’s Investors Service, and Fitch Ratings:

 

S&P

Moody’s

Fitch

 

Idaho

 

Idaho

 

Idaho

 

 

Power

IDACORP

Power

IDACORP

Power

IDACORP

Corporate Credit Rating (1)

BBB

BBB

Baa 1

Baa 2

BBB

BBB

Senior Secured Debt

A-

None

A2

None

A-

None

Senior Unsecured Debt

BBB

None

Baa 1

Baa 2

BBB+

None

Short-Term Tax-Exempt Debt

BBB/A-2

None

Baa 1/ VMIG-2

None

None

None

Commercial Paper

A-2

A-2

P-2

P-2

F2

F2

Credit Facility

None

None

Baa 1

Baa 2

None

None

Rating Outlook

Stable

Stable

Stable

Stable

Stable

Stable

(1) Fitch refers to its comparable rating as the “Long-term Issuer Default Rating.”

 

These security ratings reflect the views of the ratings agencies.  An explanation of the significance of these ratings may be obtained from each rating agency.  Such ratings are not a recommendation to buy, sell, or hold securities.  Any rating can be revised upward or downward or withdrawn at any time by a rating agency if it decides that the circumstances warrant the change.  Each rating agency has its own methodology for assigning ratings and, accordingly, each rating should be evaluated independently of any other rating.

IDACORP and Idaho Power’s credit facilities are affected by the companies’ credit ratings.  A ratings downgrade would result in an increase in the cost of borrowing but would not result in a default or acceleration of the debt under the facilities.  If Idaho Power’s ratings are downgraded below investment grade, Idaho Power must extend or renew its authority for borrowings under its IPUC and OPUC regulatory orders.  The IPUC order provides that Idaho Power’s authority will continue for 364 days from such downgrade, if Idaho Power promptly notifies the IPUC and files to continue its original authority to borrow.  The Oregon statutes permit the issuance of short-term debt without approval of the OPUC.

Idaho Power maintains margin agreements relating to its wholesale commodity contracts that allow performance assurance collateral to be requested of and/or posted with certain counterparties.  As of June 30, 2010, Idaho Power had posted approximately $7 million of assurance collateral.  Should Idaho Power experience a reduction in its credit rating on Idaho Power's unsecured debt to below investment grade Idaho Power could be subject to additional

 

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requests by its wholesale counterparties to post additional performance assurance collateral.  Counterparties to derivative instruments and other forward contracts could request immediate payment or demand immediate ongoing full daily collateralization on derivative instruments and contracts in net liability positions.  Based upon Idaho Power’s current energy and fuel portfolio and market conditions as of June 30, 2010, the approximate amount of additional collateral that could be requested upon a downgrade to below investment grade is approximately $23 million.  Idaho Power actively monitors the portfolio exposure and the potential exposure to additional requests for performance assurance collateral calls, through sensitivity analysis, to minimize capital requirements.

Capital Requirements

 

Idaho Power expects that total capital expenditures will be at or slightly above $1 billion from 2010 through 2012.  Internal cash generation after dividends is expected to provide less than the full amount of total capital requirements during that period.  IDACORP and Idaho Power expect minimal need for external financing in 2010, except for issuances under the dividend reinvestment and employee-related plans.  However, IDACORP or Idaho Power may engage in external financing activities during 2010 to pre-fund 2011 debt maturities and/or to take advantage of favorable market conditions should they exist.  Beyond 2010, IDACORP and Idaho Power expect to continue financing capital requirements with a combination of internally generated funds and externally financed capital.

The table below presents Idaho Power’s estimated cash requirements for construction, excluding AFUDC, for 2010 through 2012 (in millions of dollars).  The table also includes the net cash proceeds and disbursements relating to the Hemingway and Populus Joint Purchase and Sale Agreement between Idaho Power and PacifiCorp discussed below.

 

2010

2011-2012

Ongoing capital expenditures

$

155-160

$

352-380

AMI

 

23-25

 

23-25

Langley Gulch Power Plant (detailed below)

 

138-140

 

175-180

Other major projects

 

39-40

 

90-95

 

Total

$

355-365

$

640-680

 

 

 

 

 

 

Langley Gulch Power Plant:  The Langley Gulch Power Plant is a natural gas-fired CCCT generating plant with a summer nameplate capacity of approximately 300 MWs and a winter capacity of approximately 330 MWs.  Construction of the plant is underway.  The plant is being constructed near New Plymouth, Idaho and is contracted to achieve commercial operation by November 1, 2012.  Incentives are anticipated to advance the commercial operation date to July 1, 2012.  The total cost estimate for the project including AFUDC is $427 million, $102 million of which Idaho Power has incurred through June 30, 2010.  During the first quarter of 2010, the water treatment and disposal plan was modified to an evaporative pond design.  The plan change is not expected to increase the total project cost because it is expected to be offset by reductions in other costs.  During the second quarter of 2010, project permitting activities continued and contractor milestones were met.  On June 25, 2010, Idaho Power received the air quality permit to construct from the Idaho Department of Environmental Quality.  The contracts for the gas pipeline, tap, and meter were executed during this period.

Other Major Projects :

Hydroelectric Projects:   In the table above, Idaho Power has included estimated costs relating to the relicensing of hydroelectric facilities and complying with the renewed licenses.  These costs total approximately $25 million for the three-year period.  An additional estimated amount of $12 million relating to future hydroelectric projects is also included in the table.


Hemingway Station:   Idaho Power recently completed construction of its new 500-kV Hemingway station, located near Boise, Idaho.  This station was constructed to relieve capacity and operating constraints to enhance reliable service to Idaho Power’s network and native load customers and was placed in service in July 2010 at a total cost of approximately $57 million.  The 2010 cost estimate for the project, including station interconnections, is $20 million and is included in the above table.

 

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Hemingway-Bowmont Transmission Line:   The Hemingway-Bowmont transmission line consists of 12 miles of new 230-kV double circuit transmission line that will provide power to the Treasure Valley in southwest Idaho.  The project was placed in service in 2010 at a total cost of approximately $16 million.  The 2010 cost estimate for the project was $6.5 million and is included in the above table.

Boardman-Hemingway Line:   The Boardman-Hemingway Line is a proposed 299-mile, 500-kV transmission project between a station near Boardman, Oregon and the Hemingway station.  This line will provide transmission service to meet needs identified in the 2009 Integrated Resources Plan (IRP) and other requests pursuant to Idaho Power’s OATT.  On April 19, 2010, Idaho Power submitted the eastern line route alternative as its proposed route in its revised right-of-way application to the U.S. Bureau of Land Management (BLM), which restarts the National Environmental Policy Act process.  On July 6, 2010, Idaho Power filed a Notice of Intent to Submit an Application for Site Certification with the Oregon Department of Energy.  The cost of the initial phase of the project is estimated at $50 million and the 2010 to 2012 cost estimate is included in the table above.  Total cost estimates for the project are approximately $600 million.  Idaho Power expects its share of the project to be between 30 and 50 percent.  Construction costs beyond the initial phase are not included in the table above.  This project is expected to be completed in 2015, subject to siting, permitting, and regulatory approvals.  On July 6, 2010, the Oregon Department of Fish and Wildlife released for public review and comment a draft update to the conservation plan for the greater sage grouse which, if adopted, may require re-routing of the currently proposed line route.  Environmental issues, including proposed legislation relating to the sage grouse in Oregon, could delay the project, alter the proposed siting, and result in significantly higher project costs.

Gateway West Project:   Idaho Power and PacifiCorp are pursuing the joint development of the Gateway West project to build transmission lines between Windstar, a station located near Douglas, Wyoming, and the Hemingway station.  Idaho Power and PacifiCorp have a cost sharing agreement for expenses incurred for analysis work of the initial phases.  Idaho Power’s share of the initial phase, consisting of engineering, environmental review, permitting and rights-of-way, is approximately $40 million, and cost estimates for the 2010 to 2012 timeframe are included in the above table.  Initial phases of the project could be completed by 2014; however, timing of the project’s segments may be deferred and constructed as demand requires.  Idaho Power’s share will vary by segment across the project and the current estimated cost for its share is between $300 million and $500 million.  Construction costs are not included in table above.  Idaho Power anticipates receiving a draft environmental impact statement (EIS) from the BLM in late 2010.

AMI / Smart Grid (American Recovery and Reinvestment Act of 2009 (ARRA)):  The AMI project provides the means to automatically retrieve energy consumption information, eliminating manual meter reading expense.  Idaho Power intends to install this technology for approximately 99 percent of its customers and is on pace to complete the installations by the end of 2011.  As of June 30, 2010, Idaho Power had installed approximately 278,000 AMI meters.  On May 28, 2010, the IPUC approved Idaho Power’s request to include the 2010 AMI investment in its rate base.  The requested increase to rates of approximately $2.4 million was effective June 1, 2010.  The total cost estimates for the project are approximately $74 million.  The 2010 and 2011 costs are included in the table above.

Under the ARRA, Idaho Power was awarded a grant of $47 million from the Department of Energy (DOE).  This grant matches a $47 million investment by Idaho Power in Smart Grid AMI technology.  The grant was signed by the DOE on April 2, 2010.  Billings began in May 2010 and are expected to occur monthly over the term of the three-year contract.  The grant amount is not included in the table above.

Memorandum of Understanding and Related Transactions with PacifiCorp:
Memorandum of Understanding: On March 5, 2010, Idaho Power and PacifiCorp entered into a Memorandum of Understanding (MOU) under which Idaho Power and PacifiCorp agreed to negotiate in good faith to reach arrangements pertaining to the sale by the parties to one another of an undivided ownership interest in certain transmission facilities, and joint development and construction of three transmission projects.  The parties also agreed to negotiate in good faith to reach arrangements pertaining to interconnection of their respective systems; joint ownership, operation, and maintenance of the systems; cost-sharing; capital improvements; and each party’s rights to a specified transmission capacity on applicable transmission lines.  On July 29, 2010, Idaho Power and PacifiCorp mutually agreed to extend the final date to execute and deliver definitive agreements under the MOU from September 1, 2010 to November 5, 2010.  The MOU may be terminated by either party at any time.

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Joint Purchase and Sale Agreement and Joint Operating Agreements:   In connection with the MOU, on April 30, 2010, Idaho Power entered into a Joint Purchase and Sale Agreement with PacifiCorp, pursuant to which Idaho Power agreed to sell to PacifiCorp a 59.0 percent  interest in certain high-voltage transmission-related and interconnection equipment located at the Hemingway station south of Boise, Idaho, and PacifiCorp agreed to sell to Idaho Power a 20.8 percent interest in certain high-voltage transmission-related and interconnection equipment located at PacifiCorp’s Populus station in southeast Idaho.  Closing of the purchase and sale occurred on May 3, 2010.  The net purchase price on the closing date was $3.7 million paid by PacifiCorp to Idaho Power, $1.7 million of which was subsequently refunded by Idaho Power as a result of a cost true-up to reflect actual construction costs through the closing date.  Upon completion of construction of the stations as currently planned, Idaho Power expects that it will have paid an aggregate purchase price of $14.1 million to PacifiCorp for Idaho Power’s interest in the Populus station, and that PacifiCorp will have paid an aggregate purchase price of $12.9 million to Idaho Power for PacifiCorp’s interest in the Hemingway station.

The Hemingway and Populus stations are owned and operated in accordance with separate Joint Ownership and Operating Agreements (Operating Agreements), each dated May 3, 2010.  The Operating Agreements include terms relating to the obligations of Idaho Power and PacifiCorp as the operators of the Hemingway and Populus stations, respectively, including, among other items, construction of additional transmission and interconnection equipment at the stations, cost sharing, operation and maintenance, and interconnection and energizing of the transmission systems.

On May 10, 2010, Idaho Power and PacifiCorp filed the Operating Agreements with the FERC, requesting that the FERC determine that the rates that Idaho Power and PacifiCorp were imposing on one another pursuant to the Operating Agreements were just and reasonable.  On June 1, 2010, the Bonneville Power Administration (BPA) filed with the FERC an intervention and protest, requesting that the FERC defer acceptance of the Operating Agreements.  In its intervention, the BPA stated that it believed the Operating Agreements were only a small part of a much larger transaction between PacifiCorp and Idaho Power involving the purchase and sale of significant portions of transmission lines and other facilities, and that this larger transaction may have significant reliability and operational impacts on the BPA’s system and its customers.  On July 9, 2010, the FERC issued an order finding that the terms, conditions, and rates in the Operating Agreements were just and reasonable, and accepted the Operating Agreements for filing effective July 10, 2010.

Existing Transmission Capacity Rights Agreements with PacifiCorp :   Idaho Power and PacifiCorp are parties to existing transmission capacity rights agreements that grant to PacifiCorp prescribed transmission capacity rights over portions of Idaho Power’s existing transmission system.  The agreements also include a memorandum of understanding and a permitting cost-sharing agreement for the Gateway West transmission line National Environmental Policy Act process.  The MOU provides that Idaho Power and PacifiCorp will negotiate in good faith to attempt to reach an agreement to terminate those agreements and replace the transmission arrangements with new agreements, which include the Operating Agreements.  Discussions regarding the potential arrangements are ongoing.  See “REGULATORY MATTERS – FERC ITSA” for a discussion of the other recent transmission arrangements with PacifiCorp.

Environmental Regulation Costs

 

Idaho Power’s activities are subject to a broad range of federal, state, regional, and local laws and regulations designed to protect, restore, and enhance the quality of the environment including air, water, and solid waste.  Idaho Power estimates its environmental capital expenditures excluding AFUDC, based upon present environmental laws and regulations, will be approximately $18 million during 2010 and $62 million from 2011 through 2012.  These amounts are included in the table above as “Ongoing Capital Expenditures” and “Other Major Projects.”  The estimated expenditures do not include costs related to possible changes in the environmental laws or regulations and enforcement policies that may be enacted in response to issues such as climate change and other pollutant emissions from coal-fired generation plants and endangered species.

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Other Capital Requirements

 

IDACORP’s non-regulated capital expenditures primarily relate to IFS’s tax-structured investments.  IDACORP invested $7 million in tax-structured investments in the first quarter of 2010.  Currently there are no additional expenditures anticipated for 2010, $10 million is anticipated in 2011, and none are anticipated in 2012.

Contractual Obligations

 

The following items are the only material changes to contractual obligations made outside of the ordinary course of business during the six months ended June 30, 2010:

•         Idaho Power entered into a power purchase agreement with USG Oregon, LLC for the purchase of energy from the Neal Hot Springs Unit #1 geothermal electric generation facility.  The project will be located near Vale, Oregon and the expected output will be approximately 22 MWs, with an estimated on-line date of late 2012.  Idaho Power’s purchases under the contract are expected to total $569 million from 2012 to 2037.  On May 20, 2010, the IPUC issued an order approving the purchase of energy under the agreement, and stated that the purchases of energy would be allowed as prudently incurred expenses for ratemaking purposes.

•         In the second quarter, Idaho Power entered into several power purchase agreements with wind and other alternate energy developers.  Payments pursuant to these agreements are expected to total approximately $109 million from 2011 to 2031.

•         In April 2010, Idaho Power entered into multiple service agreements with Northwest Pipeline for rate schedule TF-1, Firm Transportation.  Idaho Power estimates it will spend approximately $32 million on the firm transportation service agreements.  The service agreements start in 2011 with varying end dates ranging through 2042.

•         In June 2010, Idaho Power entered into a contract with Union Pacific Corporation for the transportation of coal.  Idaho Power has agreed to spend approximately $47 million over the term of the contract from 2011 to 2014.

 

Dividends

 

The amount and timing of dividends paid on IDACORP’s common stock are within the sole discretion of IDACORP’s Board of Directors.  The IDACORP Board of Directors reviews the dividend rate quarterly to determine its appropriateness in light of IDACORP’s current and long-term financial position and results of operations, capital requirements, rating agency requirements, legislative and regulatory developments affecting the electric utility industry in general and Idaho Power in particular, competitive conditions, and any other factors the Board of Directors deem relevant.  The ability of IDACORP to pay dividends on its common stock is dependent upon dividends paid to it by its subsidiaries, primarily Idaho Power.

For additional information relating to IDACORP and Idaho Power dividends, including restrictions on IDACORP’s and Idaho Power’s payment of dividends, see Note 6 – “Common Stock” to the condensed consolidated financial statements included in this report.

REGULATORY MATTERS:

 

Overview

 

As a regulated utility, Idaho Power is under the retail jurisdiction (as to rates, service, accounting, and other general matters of utility operation) of the IPUC and the OPUC, which determine the rates that Idaho Power charges to its general business customers.  Idaho Power is also under the regulatory jurisdiction of the IPUC, the OPUC, and the Public Service Commission of Wyoming as to the issuance of debt and equity securities.  Idaho Power uses general rate cases, power cost adjustment mechanisms, a fixed cost adjustment mechanism, and subject-specific filings to recover its costs of providing service and to potentially earn a return on investment.  The disallowance by the IPUC or the OPUC of Idaho Power’s recovery of its costs would adversely impact Idaho Power’s ability to earn its authorized rate of return on equity.  Also, as a public utility under the Federal Power Act, Idaho Power has authority to charge market-based rates for wholesale energy sales under its FERC tariff and to provide transmission services under its OATT.

 

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Idaho Power monitors legislative and regulatory developments at all levels of government, particularly those with the potential to alter the operation and productivity of its generating plants and other assets.  Rate changes and regulatory decisions have a significant impact on results of operations and cash flows.  Idaho Power has continued to focus on timely recovery of its costs through filings with the IPUC and OPUC.  Discussed below are filings and important regulatory determinations that have been recently made.  Regulatory matters and the financial impact of rate decisions are also discussed in Note 3 - “Regulatory Matters” to the condensed consolidated financial statements included in this report.

Oregon and Idaho Deferred Net Power Supply Costs

 

Idaho Power’s power supply costs can vary significantly from year to year, primarily because of weather, loads, and commodity markets.  The primary financial impact of power supply cost variations is that monthly cash recovered from customers does not match monthly costs incurred to serve customers, resulting in fluctuations in operating cash flows from year to year.  Idaho Power’s PCA mechanisms allow it to defer a majority of the difference between costs and revenues to later be recovered from or refunded to customers.  A summary of the changes in deferred power supply costs during the six months ended June 30, 2010 is set forth in Note 3 - “Regulatory Matters” to the condensed consolidated financial statements.

The net change of $78 million in Idaho Power’s balance of deferred power supply costs from December 31, 2009, to June 30, 2010, is primarily a result of power supply costs that were $24 million less than the forecast amount during that period and the recovery of $53 million through rates.

Idaho Regulatory Matters in 2010

 

Idaho Settlement Agreement:   On January 13, 2010, the IPUC approved a settlement agreement among Idaho Power, several of Idaho Power’s customers, the IPUC Staff, and other parties.  Significant elements of the settlement agreement included:

  • A general rate moratorium in effect until January 1, 2012.  The moratorium does not apply to other specified revenue requirement proceedings, such as the PCA, the FCA, pension funding, AMI, energy efficiency rider, and government imposed fees.
  • A specified distribution of the expected reduction in 2010 PCA rates that would reduce customer rates, provide some general rate relief to Idaho Power, and reset base power supply costs for the PCA.  This provision anticipated a significant reduction in PCA rates for the 2010-2011 PCA year.
  • A provision to share with Idaho customers 50 percent of any Idaho-jurisdiction earnings in excess of a 10.5 percent return on equity in any calendar year from 2009 to 2011.
  • A provision to allow additional amortization of ADITC if Idaho Power’s actual return on equity in its Idaho jurisdiction is below 9.5 percent in any calendar year from 2009 to 2011.  Idaho Power is permitted to amortize additional ADITC in an amount up to $45 million over the three-year period, but could use no more that $15 million in any one year unless there is a carryover.  Carryover amounts are added to the $15 million annual allowance up to a maximum amortization of $25 million in any one year.

 

Because Idaho Power’s 2009 Idaho-jurisdiction return on equity was between 9.5 and 10.5 percent, the sharing and additional amortization provisions were not triggered in 2009, and the ADITC available for accelerated additional amortization in 2010 is $25 million.  Idaho Power recorded additional ADITC amortization of $4.5 million in the first quarter of 2010, but reversed the entire $4.5 million in the second quarter based on updated estimates of annual 2010 return on equity.


The settlement agreement included a provision to reestablish the base level for net power supply costs effective with the June 1, 2010 PCA rate change.  On January 19, 2010, Idaho Power filed with the IPUC a request to reestablish base net power supply costs with an increase of $74.8 million in the Idaho jurisdiction.  On April 13, 2010, the IPUC found that adjustments for PURPA contracts ($7.1 million) and the Hoku contract ($4.0 million) as proposed by the IPUC Staff were reasonable reductions to Idaho Power’s proposed base net power supply expenses.  The remaining amount of $63.7 million was approved as a working number for Idaho Power’s 2010 PCA filing, but the IPUC deferred final calculation of authorized base net power supply expenses to the 2010 PCA case.  Remaining at issue

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in the settlement was a $24.9 million increase in coal costs at the Bridger plant, which was first raised as an area for review by the OPUC Staff, which review has concluded.  In May 2010, the IPUC issued an order approving the $63.7 million increase in base net power supply expenses and cost recovery in full in the Idaho jurisdiction in connection with Idaho Power’s 2010 PCA filing and order, discussed below.

2010 PCA Filing and Order:   On April 15, 2010, Idaho Power filed its annual application with the IPUC to implement new PCA rates to be effective June 1, 2010 through May 31, 2011, and to change base rates, pursuant to the terms of the Idaho settlement agreement.  Idaho Power’s application stated that the proposed PCA computations result from the stipulation approved by the IPUC in its order issued in January 2010, which provides for a sharing between customers and Idaho Power shareholders of any PCA rate reduction that results from the 2010 PCA.  The January 2010 stipulation provides that PCA rates will be reduced by the full calculated amount and that base rates will be increased in an amount that partially offsets the PCA decrease.  On May 28, 2010, the IPUC issued its order approving a $146.9 million decrease in the PCA, along with a base rate increase of $88.7 million.  The net effect of these two rate adjustments is an overall decrease in customer rates of $58.2 million, or 6.49 percent, effective June 1, 2010.  Idaho Power’s PCA application was approved as filed with the IPUC, with the exception of a $215,000 interest expense adjustment relating to base power supply costs.

The IPUC’s order identified the following two specific items of contention raised by certain industrial customers of Idaho Power:  (1) the prudency of Idaho Power’s determination of coal costs for the Jim Bridger plant, and (2) the use of the load growth adjustment rate (LGAR) in times of load decline.  The LGAR is an element of the PCA formula that is intended to eliminate recovery of power supply expenses associated with load growth resulting from changing weather conditions, a growing customer base, or changing customer use patterns.  The IPUC approved the full Jim Bridger coal costs included in the base level power supply costs and the amount included in Idaho Power’s PCA forecast, finding that Idaho Power had met its burden of proof to establish the reasonableness of the coal costs to be included in the base level power supply costs.  With regard to the LGAR, Idaho Power’s true-up calculation for the PCA included an increase of $21.3 million for the decline in load growth for the Idaho jurisdiction.  The intervening parties asserted that use of the LGAR in times of load decline is inappropriate in that it results in potential double recovery.  However, the IPUC Staff recommended no change to the load growth adjustment amounts or methodology, and the IPUC did not remove the LGAR adjustment to the PCA component.  The IPUC’s order stated, however, that it expects the IPUC Staff, Idaho Power, and interested parties to meet to address an appropriate change to the load growth adjustment mechanism to eliminate a potential double recovery when loads decline.

Other 2010 IPUC Filings and Orders:

 

FCA, Pension Expense, and AMI :  In March 2010, Idaho Power made three rate filings with the IPUC, each with a requested effective date of June 1, 2010, and in May 2010 the IPUC issued orders on those three rate filings, as follows:

•         Fixed Cost Adjustment :  In March 2007, the IPUC approved the implementation of a FCA pilot program for Idaho Power’s residential and small general service customers.  The FCA is a rate mechanism designed to remove Idaho Power’s disincentive to invest in energy efficiency programs by separating (or decoupling) the recovery of fixed costs from the variable kilowatt-hour charge and linking it instead to a set amount per customer.  The FCA allows Idaho Power to recover the difference between certain fixed costs recovered in rates and the fixed costs authorized for recovery in Idaho Power’s most recent rate case.  The pilot program began on January 1, 2007 and ended on December 31, 2009.  On April 29, 2010, the IPUC approved a two-year extension of the FCA pilot program, effective retroactively to January 1, 2010.  For the three and six months ended June 30, 2010, Idaho Power accrued revenues of $1.6 million and $3.4 million, respectively, under the FCA.


On March 15, 2010, Idaho Power filed an application with the IPUC requesting authorization to implement FCA rates for electric service from June 1, 2010 through May 31, 2011.  On May 28, 2010, the IPUC issued an order approving Idaho Power’s request.  The rate adjustments are expected to result in collection of an additional $3.6 million over currently billed amounts during the period from June 1, 2010 to May 31, 2011.  In its order, the IPUC reiterated a statement in its prior order that making the FCA permanent is

 

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premature, and that during the two year extension of the FCA program it expects additional data to develop, giving interested parties and customers time to evaluate the FCA and address issues of concern.

•         Pension Expense Recovery :  The IPUC approved Idaho Power’s request to increase rates to allow recovery of Idaho Power’s 2009 cash contribution to its defined benefit pension plan, which contribution is required to be made by September 15, 2010.  Idaho Power’s application sought approval of $5.4 million in pension cost recovery over a one-year period to allow recovery contemporaneous with Idaho Power’s cash contributions to the defined benefit pension plan.

The IPUC’s order provided that the allowance of recovery of the 2009 pension plan contribution does not guarantee that the IPUC will similarly approve recovery of future pension contributions, without evidence that Idaho Power has evaluated alternatives to reduce the burden placed on customers.  The IPUC stated in its order that “Idaho Power is advised that, previous orders notwithstanding, approval of Idaho Power’s pension contributions in this case does not guarantee Commission approval of future pension plan contributions.  Authority for the balancing account and regulatory account remain in place.  However, further justification is required before additional rate recovery for future contributions will be authorized.”  Idaho Power is currently undertaking the analysis directed by the IPUC, is considering and evaluating alternatives, and intends to provide the IPUC with the results of its evaluation and recommendations in the summer or early fall of 2010.  Idaho Power currently records its deferred pension expense as a regulatory asset, but if the IPUC were to determine that future pension contributions were not reasonable and prudently incurred, Idaho Power would be required to write off some or all of the balance of its deferred pension expense for its Idaho jurisdiction.  In addition to the $5.4 million of regulatory assets approved for recovery discussed above, as of June 30, 2010, Idaho Power had Idaho jurisdiction regulatory assets associated with deferred pension expenses of $46.6 million which have not yet been approved by the IPUC for recovery.  Idaho Power has determined, based on its evaluation, that these Idaho jurisdiction regulatory assets are probable of recovery.

In June 2010, the Relief Act was signed into law.  The Relief Act would, if Idaho Power elects, allow Idaho Power to reduce near-term required contributions to the pension plan by spreading them over a longer time period.  See “LIQUIDITY AND CAPITAL RESOURCES – Operating Cash Flows” above for further information relating to the Relief Act and its potential impact on Idaho Power.

•         Advanced Metering Infrastructure : Idaho Power’s AMI project provides the means to automatically retrieve energy consumption information, eliminating manual meter reading expense.  On March 15, 2010, Idaho Power filed an application with the IPUC requesting authority to implement a 0.41 percent average increase (representing a 0.33 percent overall increase) in rates for identified customer classes to recover costs relating to the AMI project.  Idaho Power’s AMI investment during the 2010 test year indicated a revenue deficiency of $2.4 million for the Idaho jurisdiction, which resulted from Idaho Power’s increase in rate base from the AMI deployment, the accelerated depreciation of existing metering equipment, and the inclusion of net operating and maintenance expense related to the AMI deployment.  On May 28, 2010, the IPUC approved Idaho Power’s application as submitted, authorizing the rate increase effective June 1, 2010.

Idaho Energy Efficiency Programs :

 

Idaho Power’s energy efficiency rider is the funding mechanism for Idaho Power’s investment in energy efficiency, conservation, and demand response programs.  On April 14, 2010, the IPUC completed its review of energy efficiency rider expenditures that Idaho Power made from 2002 to 2007.  All rider expenditures during that time period were found to be prudently incurred and approved for ratemaking purposes.

On March 15, 2010, Idaho Power filed an application with the IPUC requesting an order designating energy efficiency expenditures of $50.7 million incurred in 2008 and 2009 as prudently incurred expenses.  An order from the IPUC is pending.

 

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On May 12, 2010, the IPUC approved Idaho Power’s continued participation in the Northwest Energy Efficiency Alliance for the period 2010-2014, with funding through the energy efficiency rider.  Idaho Power first began participating in the NEEA in 1997, and the IPUC has historically allowed it to recover its costs in its rates.  Idaho Power’s share of expenses is 8.62 percent of the NEEA’s $191.7 million 2010-2014 budget.

Integrated Resource Plan (IRP):   Idaho Power filed its 2009 IRP with the IPUC and OPUC in December 2009.  The IRP addresses available supply-side and demand-side resource options, planning period load forecasts, potential resource portfolios, a risk analysis, and near-term and long-term action plans.  On July 9, 2010, the OPUC issued a proposed order that, if issued as a final order, would conditionally acknowledge the IRP.  On August 3, 2010, the IPUC issued an order accepting the IRP for filing.

Oregon Regulatory Matters in 2010

 

Oregon 2009 General Rate Case Settlement:   On February 24, 2010, the OPUC approved a $5 million, or 15.4 percent, increase in base rates in the Oregon jurisdiction.  The new rates were effective March 1, 2010, and are based on a return on equity of 10.175 percent and an overall rate of return of 8.061 percent.  Idaho Power’s previously authorized rate of return in Oregon was 7.83 percent, and its requested rate of return in its general rate case filing was 8.68 percent.

Oregon Power Cost Recovery Mechanisms:   Idaho Power’s power cost recovery mechanism in Oregon went into effect in 2008.  It has two components:  the PCAM and the APCU.  The combination of the PCAM and the APCU allows Idaho Power to recover excess net power supply costs in a more timely fashion than through the previously existing deferral process.

  • PCAM :  The PCAM consists of an annual power supply expense true-up, which uses an asymmetrical dead band (the range of deviations within which Idaho Power absorbs cost increases or decreases) to calculate the net power supply deviations used in the true-up calculations.  On February 26, 2010, Idaho Power filed its PCAM application for the 2009 year with the OPUC.  The filing stated that actual net power supply costs were within the deadband, resulting in no request for a deferral.  In an April 15, 2010 stipulation, which was approved in an order issued by the OPUC on May 24, 2010, Idaho Power agreed to a one-time modification to the deadband used to calculate the net power supply deviations in the 2010 PCAM.  The deadband was increased by $0.2 million, to $2.4 million, before any excess power costs are subject to collection pursuant to the terms of the PCAM, and the deadband was reduced by $0.2 million, to $(1.0) million, before any power costs are subject to return pursuant to the terms of the PCAM.
  • APCU :  Idaho Power annually updates its net power supply expense included in its Oregon rates through the APCU.  The APCU is comprised of two primary components: an October power cost update and a March power cost forecast.  The October update contains Idaho Power’s forecasted net power supply expense reflected on a normalized and unit basis for an April through March test period.  The March forecast contains Idaho Power’s net power supply expense based upon updated actual forecasted conditions.  The rates from the October update and March forecast are combined, and that combined rate is then included in rates effective on June 1 of each year.  On March 23, 2010, Idaho Power filed its March forecast for the 2010 APCU rate adjustment with the OPUC.  A stipulation among various parties combining the March forecast and 2009 October update was filed with the OPUC on April 15, 2010.  The stipulation was approved on May 24, 2010, and resulted in an overall increase of 5.53 percent in Oregon rates.  The rate adjustments are expected to result in collection of an additional $2.2 million over currently billed amounts over the 12-month APCU adjustment period beginning June 1, 2010.

Oregon Solar Photovoltaic Energy Pilot Program:  During and subsequent to the second quarter of 2010, the OPUC adopted rules implementing a solar photovoltaic capacity standard (SPCS) and solar photovoltaic pilot program (SPPP) applicable to companies providing electric service to Oregon customers.  The OPUC orders and related Idaho Power compliance filings established the rules, processes, and procedures to implement the Oregon Legislature’s mandate for all Oregon electric companies to implement and make solar photovoltaic energy programs available to their respective Oregon customers.  Pursuant to the SPCS and SPPP, Idaho Power is required to (1) either build or purchase an aggregate of 500kW of energy from one or more solar facilities by the year 2020; and (2) purchase energy from qualified solar photovoltaic systems at a financial incentive rate of 55 cents per kWh to promote the development of 10-kW and smaller solar projects over the next two years.  The program is to be rolled

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out over a two year period for a total nameplate capacity of 400 kW.  The first year's program allotment of 200 kW was made available to Oregon customers on July 1, 2010, and is fully subscribed.  The legislative mandate and the OPUC orders specify that the cost of these programs be paid by Oregon customers.

 

Federal Regulatory Matters in 2010

 

FERC ITSA:  In June 2009, Idaho Power filed with the FERC a request for authority to increase rates to PacifiCorp under the existing Agreement for Interconnection and Transmission Services (ITSA) between Idaho Power and PacifiCorp to the OATT level.  In August 2009, the FERC accepted the rates subject to refund.  On May 24, 2010, Idaho Power and PacifiCorp entered into and filed an offer of settlement with the FERC, which settlement affirms those rates.  On July 23, 2010, the FERC issued an order approving the ITSA settlement.  Under the settlement, PacifiCorp will take and pay for 250 MW of long-term firm point-to-point transmission service, pursuant to the ITSA, the rates, terms, and conditions of which will be equivalent to Idaho Power’s OATT.

Annual OATT Update:  On June 1, 2010, Idaho Power posted its DIF for its OATT on its OASIS Internet platform.  The DIF is the draft computation of Idaho Power’s transmission rate for service under its OATT, which is updated annually.  Under the tariff, the new rates are effective on October 1 of each year.  The new draft rate submitted by Idaho Power is $19.60 per kW/yr, an increase of 23.8 percent over the present OATT rate of $15.83 per kW/yr.  Several parties have submitted data requests in connection with Idaho Power’s DIF, and Idaho Power is currently responding to those data requests.

FERC Compliance Program:  The FERC has approved an extensive number of reliability standards developed by the North American Electric Reliability Corporation (NERC) and the Western Electricity Coordinating Council (WECC), including critical infrastructure protection (CIP) standards and regional standard variations.  As part of its compliance program, Idaho Power periodically reviews its operations for compliance with FERC rules, orders, and standards and self-reports compliance issues to the FERC and the WECC.  To date, reports Idaho Power has submitted to the FERC have focused on Standards of Conduct, Idaho Power’s OATT, and compliance with FERC requirements to post available capacity on Idaho Power’s website and with the Western Systems Power Pool.  Idaho Power has self-reported matters relating to CIP and other reliability standards to the WECC.

During the first quarter of 2010, Idaho Power self-reported to both the FERC and the WECC, and Idaho Power received notification that the FERC intends to take no further action regarding several issues previously reported by Idaho Power.  During the first quarter of 2010, Idaho Power also received notices of alleged violations from the WECC relating to reliability and CIP matters.  During the second quarter of 2010, Idaho Power submitted self-reports to both the FERC and the WECC, received notification that the FERC intends to take no further action regarding several issues previously self-reported by Idaho Power, and received a notice of confirmed violation from the WECC relating to a reporting deadline.

Certain matters reported to the FERC and the WECC remain unresolved, and Idaho Power is unable to predict what action, if any, the WECC or the FERC will take on those unresolved matters, but Idaho Power does not expect any material adverse effect on its financial position, results of operations, or cash flows.  Idaho Power plans to continue its policy of reducing potential violations through its compliance program and self-reporting compliance issues to the FERC and the WECC.

Relicensing of Hydroelectric Projects:

 

Idaho Power, like other utilities that operate nonfederal hydroelectric projects on qualified waterways, obtains licenses for its hydroelectric projects from the FERC, and these licenses last for 30 to 50 years.  Idaho Power is actively pursuing relicensing of the HCC and Swan Falls hydroelectric projects.  In addition, Idaho Power recently received a license amendment to expand the Shoshone Falls hydroelectric project and to potentially extend the term of the license beyond its 2034 expiration date.

HCC :  Idaho Power’s most significant relicensing effort is the HCC, which provides approximately 68 percent of Idaho Power’s hydroelectric generating nameplate capacity and 36 percent of its total generating nameplate capacity.  In 2007, the FERC Staff issued a final EIS for the HCC, which the FERC will use to determine whether, and under what conditions, to issue a new license for the project.  Idaho Power has reviewed the final EIS and is

 

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developing comments for filing with the FERC.  However, certain portions of the final EIS involve issues that may be influenced by water quality certifications for the project under section 401 of the Clean Water Act and formal consultations under the Endangered Species Act (ESA), which remain unresolved.  Idaho Power anticipates filing comments to the final EIS as the section 401 and ESA processes progress and the manner in which they may affect pending issues becomes more certain.  In that regard, Idaho Power continues to cooperate with the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the FERC in an effort to address ESA concerns and to work with Idaho and Oregon to take measures to ensure that any discharges from the HCC will comply with the temperature and other applicable necessary state water quality standards so that appropriate water quality certifications can be issued for the project.  The FERC is expected to issue a license order for the HCC once the ESA consultation and the state water quality certification processes are completed.  Idaho Power is currently operating under an annual license issued by the FERC and expects to continue operating under annual licenses until a new multi-year license is issued.

Swan Falls :  Idaho Power is currently operating the Swan Falls hydroelectric project under an annual license while its application for a multi-year license is pending before the FERC.  The FERC has issued a draft EIS for the Swan Falls project and Idaho Power anticipates that the FERC will complete and issue a final EIS in 2010.

Shoshone Falls :  On July 1, 2010, the FERC issued an amended license for the Shoshone Falls project to expand its generating capacity to 60.875 MW.  The amended license has an expiration date of 2034, but provides that the license will be extended to 2044 following completion of the proposed generation capacity expansion project.  Idaho Power is currently evaluating and reviewing the license requirements and related operating issues of the proposed generation capacity expansion project.

Relicensing costs are recorded in construction work in progress until new multi-year licenses are issued by the FERC, at which time the charges will be transferred to electric plant in service.  Relicensing costs and costs related to new licenses will be submitted to regulators for recovery through the ratemaking process.  Relicensing costs of $123 million and $5 million for HCC and Swan Falls, respectively, were included in construction work in progress at June 30, 2010.  The IPUC authorizes Idaho Power to include in rates approximately $6.8 million annually ($10.6 million grossed up for income taxes) of AFUDC relating to the HCC relicensing project, and collecting these amounts will reduce the relicensing amount submitted to regulators for recovery through the ratemaking process.

LEGAL MATTERS:

 

Western Energy Proceedings at the FERC:  Idaho Power and IE are parties to proceedings at the FERC arising from the “western energy situation” – the California energy crisis and the energy shortages, high prices, and blackouts in the western United States during 2000 and 2001 that caused numerous purchasers of electricity in those markets to initiate proceedings seeking refunds or other forms of relief and the FERC to initiate its own investigations.  The three major sets of cases arising out of the western energy situation relate to (1) pricing of sales in the California Independent System Operator (Cal ISO) and California Power Exchange (CalPX) markets (the California refund proceeding); (2) claims of market manipulation and tariff violations in those markets, some of which have been the subject of FERC show cause orders (the market manipulation cases); and (3) pricing of sales in the spot power markets in the Pacific Northwest (the Pacific Northwest refund proceeding).

Proceedings in all three sets of cases remain pending before the FERC.  In addition, there are more than 200 petitions pending in the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) for review of numerous FERC orders regarding the western energy situation, including the California refund proceeding and the market manipulation cases.  Decisions in these appeals may have implications with respect to other pending cases, including those to which Idaho Power and IE are parties.


Idaho Power and IE have reached settlements with the principal parties to the California refund proceeding and the market manipulation cases, but there remain claims by parties that have not settled that represent a small minority of potential refunds in those proceedings.  Idaho Power and IE are unable to predict the outcome of these matters, but believe that the settlement releases they have obtained will restrict potential claims that might result from the disposition of these two sets of proceedings and that these matters will not have a material adverse effect on their consolidated financial positions, results of operations, or cash flows.

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In the Pacific Northwest refund proceeding, after reviewing the FERC’s 2003 decision declining to order refunds, the Ninth Circuit remanded the case to the FERC, officially returning the case to the FERC on April 16, 2009, to consider whether evidence of market manipulation would have altered the agency’s conclusions about refunds and to include sales originating in the Pacific Northwest to the California Department of Water Resources (CDWR) in the proceedings.  In separate filings the California Parties (consisting of Pacific Gas & Electric Company, San Diego Gas & Electric Company, Southern California Edison Company, the California Public Utilities Commission, the California Department of Water Resources and the California Attorney General), City of Tacoma (Tacoma), and the Port of Seattle, Washington (Port of Seattle) asked the FERC to reorganize and restructure the Pacific Northwest case to enable them to pursue claims that all spot market sales in the Cal ISO and CalPX markets and in the Pacific Northwest from January 1, 2000 through June 20, 2001 should be subject to refund and repriced because market manipulation and tariff violations affected spot market prices.  Their requests would expand the scope of the refund period in the Pacific Northwest proceeding from the December 25, 2000 through June 20, 2001 period previously considered by the FERC.  In May 2009, the California Parties requested that the FERC sever sales to CDWR from the Pacific Northwest proceeding and consolidate their claims regarding these sales with ongoing proceedings in cases that Idaho Power and IE have settled, as well as with a new complaint filed on May 22, 2009 by the California Attorney General against some sellers, but not Idaho Power and IE.  Idaho Power and IE, along with a number of other parties, filed their opposition to the requests of the California Parties.  In April 2010, the California Parties filed a motion with the FERC renewing their May 2009 requests.  In August 2009, Tacoma and Port of Seattle jointly requested the FERC to require refunds from sellers in the Pacific Northwest spot markets for the expanded period (January 1, 2000-June 20, 2001).  Idaho Power and IE joined with a number of other sellers in the Pacific Northwest markets during 2000 and 2001 in opposing the motion of Tacoma and Port of Seattle.  On July 21, 2010, the Port of Seattle and Tacoma once again filed a motion requesting that the FERC either summarily dispose of the case or set it for hearing, and the California Parties, answering a pleading in the Brown Complaint, renewed their request for consolidation.  The FERC has not yet acted on the remand from the Ninth Circuit or on these filings and requests from the California Parties, Tacoma, and Port of Seattle.  Idaho Power and IE are unable to predict the outcome of these matters or estimate the impact they may have on their consolidated financial positions, results of operations, or cash flows.

Sierra Club Lawsuits at the Bridger and Boardman Coal-Fired Plants:  In February 2007, the Sierra Club and the Wyoming Outdoor Council filed a complaint against PacifiCorp in the U.S. District Court in Cheyenne, Wyoming, alleging that PacifiCorp had violated air quality opacity standards at the Jim Bridger coal-fired plant in Sweetwater County, Wyoming.  On April 15, 2010, the parties jointly filed a proposed consent decree resolving the pending litigation.  The consent decree was approved and entered by the court on June 8, 2010.  Idaho Power is fully reserved for the contingency and approval of the consent decree will not have a material adverse effect on Idaho Power’s consolidated financial position, results of operations, or cash flows.

In September 2008, the Sierra Club and four other non-profit corporations filed a complaint against PGE in the U.S. District Court for the District of Oregon alleging opacity permit limit violations at the Boardman coal-fired plant located in Morrow County, Oregon.  The complaint also alleged violations of the Clean Air Act (CAA), related federal regulations and the Oregon State Implementation Plan relating to PGE’s construction and operation of the plant.  The complaint sought a declaration that PGE had violated opacity limits, a permanent injunction ordering PGE to comply with such limits, injunctive relief requiring PGE to remediate alleged environmental damage and ongoing impacts, civil penalties of up to $32,500 per day per violation, and reimbursement of plaintiffs’ costs of litigation, including reasonable attorneys’ fees.  Idaho Power is not a party to this proceeding but has a 10 percent ownership interest in the Boardman plant.  PGE owns 65 percent and is the operator of the plant.  PGE has stated that it cannot determine with certainty the total amount of monetary penalties and damages asserted, but based solely on the complaint the estimated amount is $60 million.  Idaho Power is unable to predict the outcome of this matter or estimate the impact it may have on its consolidated financial position, results of operations, or cash flows.


Snake River Basin Water Rights:  Idaho Power is engaged in the Snake River Basin Adjudication (SRBA), which commenced in 1987, to define the nature and extent of water rights in the Snake River Basin in Idaho, including the water rights of Idaho Power.  On March 25, 2009, Idaho Power and the State of Idaho entered into a settlement agreement with respect to the 1984 Swan Falls Agreement and Idaho Power’s water rights under the Swan Falls Agreement, which settlement agreement is subject to certain conditions discussed below.  The settlement agreement will also resolve litigation between Idaho Power and the State of Idaho relating to the Swan Falls Agreement that was filed by Idaho Power on May 10, 2007 with the Idaho District Court for the Fifth Judicial Circuit, which has jurisdiction over SRBA matters, including the Swan Falls case.

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The settlement agreement resolves the pending litigation by clarifying that Idaho Power’s water rights in excess of minimum flows at its hydroelectric facilities between Milner Dam and Swan Falls Dam are subordinate to future upstream beneficial uses, including aquifer recharge.  The agreement commits the State of Idaho and Idaho Power to further discussions on important water management issues concerning the Swan Falls Agreement and the management of water in the Snake River Basin.  It also recognizes that water management measures that enhance aquifer levels, springs and river flows, such as aquifer recharge projects, benefit both agricultural development and hydropower generation and deserve study to determine their economic potential, their impact on the environment and their impact on hydropower generation.  These will be a part of the Comprehensive Aquifer Management Plan (CAMP), approved by the Idaho Water Resource Board (IWRB) for the ESPA, which includes limits on the amount of aquifer recharge.  Idaho Power is a member of the ESPA CAMP advisory committee and implementation committee.

On April 24, 2009, the Governor of Idaho signed into law legislation approving provisions contained in the settlement agreement.  On May 6, 2009, as part of the settlement, Idaho Power, the Governor of Idaho and the IWRB executed a memorandum of agreement relating to future aquifer recharge efforts and further assurances as to limitations on the amount of aquifer recharge.  Idaho Power and the State of Idaho also filed a joint motion to the SRBA court to dismiss the Swan Falls case and enter the stipulated water right decrees set forth in the settlement agreement.  Parties representing groundwater users in the ESPA objected to some of the language proposed by Idaho Power and the State of Idaho relating to water rights in the decrees to be entered by the SRBA court as contemplated by the settlement agreement.  Specifically, the concerns relate to the language describing the subordination of the rights and its interplay with the original Swan Falls settlement document and implementing legislation.  On January 4, 2010, the court issued an order approving the overall settlement subject to certain modifications to the draft water right decrees proposed by Idaho Power and the State of Idaho.  Idaho Power is working with the State of Idaho and the parties to reach an agreement consistent with the court’s order regarding the language of the decrees.

Idaho Power also filed an action in the U.S. District Court of Federal Claims in Washington, D.C. in October 2007, and an amended complaint on September 30, 2008, against the U.S. Bureau of Reclamation (USBR) relating to a 1923 contract right for delivery of water to its hydropower projects on the Snake River.  The action seeks to recover damages from the USBR for the lost generation resulting from reduced flows and a prospective declaration of contractual rights and obligations of the parties.  In recent months, Idaho Power has been working with the U.S. and Idaho interests (including the State of Idaho and upstream water users) in an effort to resolve certain state water right issues pending in the SRBA that are common to both the SRBA and the pending federal case.  In an effort to promote efficiency, the parties have agreed to present certain legal issues associated with the 1923 contract to the court in the SRBA case that are expected to resolve issues in the pending federal case.  The SRBA court has scheduled the presentation of these issues to the court by the fall of 2010.  Idaho Power and the USBR have agreed to stay further proceedings in the federal case pending the resolution of these issues in the SRBA case.

Idaho Power is unable to predict the outcomes of these matters or estimate the impact they may have on its consolidated financial position, results of operations or cash flows.

For further information regarding legal proceedings, see Note 9 – “Contingencies” to the condensed consolidated financial statements included in this report.

ENVIRONMENTAL ISSUES:

 

Idaho Power is subject to regulations by federal, state, and local authorities governing the protection of the environment, including the Clean Air Act; the Clean Water Act; the Comprehensive Environmental Response, Compensation and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Endangered Species Act; the Federal Land Policy and Management Act; the National Environmental Policy Act; the Resource Conservation and Recovery Act; and related state laws.  These laws and regulations are continually changing and are generally becoming more restrictive.  Idaho Power monitors legislative and regulatory developments at all levels of government for environmental issues, particularly those with the potential to alter the operation and productivity of power generating plants and other assets.  Environmental laws and regulations may, among other things, increase the cost of operating power generation plants and constructing new facilities; require that Idaho Power install additional pollution control devices at existing generating plants; or require that Idaho Power shut down certain power generation plants.  Compliance with environmental laws and regulations could result in increases to capital

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expenditures and operating expenses.  While there can be no assurance of recovery, Idaho Power intends to seek recovery of any such costs through the ratemaking process.

Global Climate Change:  There is concern nationally and internationally about global climate change and the possible contribution of GHG emissions to climate change.  Long-term climate change could significantly affect Idaho Power’s business in a variety of ways, including the following: (i) changes in temperature and precipitation could affect customer demand; (ii) extreme weather events could increase service interruptions, outages, maintenance costs, and the need for additional systems backup, and can affect the supply of and demand for electricity and natural gas, which may impact the price of energy commodities; (iii) changes in the amount and timing of snowpack and stream flows could adversely affect hydroelectric generation; (iv) legislative and/or regulatory developments related to climate change could affect plans and operations, including placing restrictions on the construction of new generation resources, the expansion of existing resources, or the operation of generation resources in general; and (v) consumer preference for, and resource planning decisions requiring, renewable or low GHG-emitting sources of energy could impact demand from existing sources and require significant investment in new generation and transmission resources.  Idaho Power does not currently operate in coastal areas and, while there may be secondary impacts such as increased supply chain costs, it is not directly exposed to the effects of potential sea level rises.

Greenhouse Gas Emission Reduction Goals:   Despite the current absence of a national mandatory GHG reduction program, Idaho Power is actively engaged in voluntary GHG reduction efforts.  In September 2009, IDACORP’s and Idaho Power’s boards of directors approved guidelines that established a goal to reduce the CO 2 emission intensity of Idaho Power’s utility operations.  Idaho Power’s goal is to reduce its resource portfolio’s average CO 2 emission intensity for the 2010 through 2013 time period to a level of 10 to 15 percent below Idaho Power’s 2005 CO 2 emission intensity of 1,194 lbs CO 2 /MWh.  The guidelines are intended to reduce Idaho Power’s average CO 2 emission intensity in a manner that minimizes the costs of those reductions to Idaho Power’s customers.

In 2008, Idaho Power and Ida-West together ranked as the 32 nd lowest emitter of CO 2 /MWh produced among the nation’s 100 largest electricity producers, according to a June 2010 collaborative report from Ceres, the Natural Resources Defense Council, Public Service Enterprise Group, Constellation Energy, and Entergy using publicly reported 2008 generation and emissions data.  According to the report, out of the 100 companies named, Idaho Power and Ida-West together ranked as the 55 th largest power producer based on fossil fuel, nuclear, and renewable energy facility total electricity generation, and the 31 st lowest emitter of CO 2 by tons of emissions.

In May 2010, Idaho Power submitted information to the Carbon Disclosure Project (CDP), an independent, not-for-profit organization that claims the largest database of corporate climate change information in the world.  Idaho Power’s estimated CO 2 emission intensity (Lbs/MWh) from its generation facilities as submitted to the CDP was 1,150, 1,097, and 1,004 Lbs/MWh for 2007, 2008, and 2009, respectively.  Idaho Power estimates that its CO 2 emission intensity from Idaho Power-owned generation facilities for the six months ended June 30, 2010 was 905 Lbs CO 2 /MWh.


Regulation of Greenhouse Gas Emissions:   The American Clean Energy and Security Act of 2009, H.R. 2454, regarding GHG emissions, renewable energy, energy efficiency, carbon capture and sequestration, and other matters, passed the U.S. House of Representatives on June 26, 2009.  The Senate introduced similar legislation in September 2009.  In May 2010, a discussion draft of an energy and climate change bill was released in the Senate that outlined a cap-and-trade program.  Proposed and draft legislation also contains provisions relating to the reinvigoration of the nuclear power industry, energy efficiency incentives, deployment of carbon capture and sequestration, and offshore oil and gas drilling.  Debate on GHG legislation continues in Congress; however, given the complexity of the legislation and other competing legislative priorities, the timing and elements of any future legislation addressing GHG emission reduction requirements are uncertain.  There are also state and regional 68 initiatives (including the Western Regional Climate Action Initiative) considering market-based mechanisms to reduce GHG emissions.


In support of international efforts to reduce GHG emissions, in January 2010 President Obama pledged to cut GHG emissions in the United States from 2005 levels by 17 percent by 2020 and 80 percent by 2050.  Any international treaty creating mandatory GHG emission reduction requirements in the United States would need to be ratified by the U.S. Senate and implemented through legislation adopted by the U.S. Congress.

 

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In September 2009, the EPA (Environmental Protection Agency) issued a final rule that requires monitoring and reporting of GHG emissions by a number of entities beginning on January 1, 2010.  Most facilities are required to report annually.  Electric generation facilities (including Idaho Power’s facilities) already reporting CO 2 emissions under the CAA Acid Rain Program must report CO 2 , nitrous oxide (NO x ), and methane emissions to the EPA on a quarterly basis.  In March 2010, the EPA proposed to expand the monitoring and reporting requirements to include emissions of fluorinated GHGs such as sulfur hexafluoride from electrical power transmission and distribution systems.

Also in September 2009, the EPA acknowledged that the CAA will require it to regulate GHG emissions from stationary sources (including Idaho Power’s thermal facilities) through both its preconstruction and operating permit programs when the national GHG emission standards for motor vehicles go into effect.

In December 2009, the EPA issued an “endangerment finding” for GHG emissions from motor vehicles.  The “endangerment finding” is required for the EPA and the Department of Transportation National Highway Traffic Safety Administration to finalize their September 2009 proposal to adopt national GHG emission (i.e. tailpipe) standards for motor vehicles.  On April 1, 2010, the EPA and the Department of Transportation issued a final rule establishing motor vehicle GHG emission standards.  The “endangerment finding” and the GHG emission standards for motor vehicles have been appealed to the U.S. Court of Appeals for the District of Columbia Circuit.

In June 2010, the EPA issued a final rule regulating GHG emissions through its preconstruction and operating permit programs under the CAA.  This rule is referred to as the “Tailoring Rule.”  The first phase of the rule will take effect on January 2, 2011, and will require imposition of Best Available Control Technology (BACT) for GHG emissions if a new major source or modification of a source is projected to result in GHG emissions of at least 75,000 tons per year (CO 2 equivalent).  In addition, existing major sources will need to amend their operating permits to include applicable requirements relating to GHGs.  The EPA has stated it will issue guidance later in 2010 on BACT for power plants, which may focus initially on energy efficiency requirements.  These regulatory provisions may ultimately be nullified if Congress enacts GHG legislation that preempts regulations promulgated by the EPA.  The EPAs effort to regulate GHG emissions through the CAA’s permitting programs has been appealed to the U.S. Court of Appeals for the District of Columbia Circuit.

In August 2007, Oregon enacted legislation establishing goals for the reduction of GHG emissions, which seek to (i) by 2010, cease the growth of Oregon GHG emissions; (ii) by 2020, reduce GHG levels to 10 percent below 1990 levels; and (iii) by 2050, reduce GHG levels to at least 75 percent below 1990 levels.  The legislation also calls for state government-developed policy recommendations in the future to assist in the monitoring and achievement of these goals.

Idaho Power will continue to monitor and evaluate proposed international, federal, state, and regional GHG legislation or initiatives as well as judicial decisions that could affect its generating facilities and operations.  A significant portion of the current initiatives regarding GHG emissions contemplate market-based compliance programs.  The regulation of GHG emissions under the CAA could result in GHG emission limits on stationary sources that do not provide market-based compliance options such as cap-and-trade programs or emission offsets.  Such a program could raise uncertainty about the future viability of fossil fuels, specifically coal, as an economical energy source for new and existing electric generation facilities because new technologies for reducing CO 2 emissions from coal, including carbon capture storage, are still in the development stage and are not yet proven.  Emission standards could require significant increases in capital expenditures and operating costs, which may accelerate the retirement of older, less-efficient coal-fired units.

There are financial, regulatory, and logistical uncertainties related to GHG reductions and the implementation of renewable energy mandates.  These will need to be resolved before the impact of such requirements on Idaho Power can be meaningfully estimated.  The impact on Idaho Power of currently proposed legislation relating to GHG emissions would depend on a variety of factors, including the specific GHG emissions limits or renewable energy requirements, the timing of implementation of these limits or requirements, the level of emissions allowances allocated and the level that must be purchased, the purchase price of emissions allowances, the development and commercial availability of technologies for renewable energy and for the reduction of emissions, the degree to which offsets may be used for compliance, provisions for cost containment (if any), the impact on coal and natural

 

 

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 gas prices, and cost recovery through rates.  Accordingly, Idaho Power cannot meaningfully predict the effect on its results of operations, financial position, or cash flows of any GHG emission, renewable energy mandate, or other global climate change requirements that may be adopted, although the costs to implement and comply with any such requirements could be substantial.  Idaho Power would seek to recover these costs and expenditures from customers as costs of doing business but is unable to predict whether it would be permitted to recover some or all of the increased costs and expenditures from customers through rates.

However, to the extent GHG emissions are regulated through a federal GHG emissions program, Idaho Power believes its business could also benefit.  Idaho Power’s generation fleet has an overall CO 2 emission rate that is lower than the industry average with a substantial amount of the fleet’s output coming from hydroelectric plants, which generate significantly lower CO 2 emissions than fossil fuel plants.  Such regulatory initiatives may also lead to increased opportunities associated with renewable generation and alternative fuels.

In the 2009 IRP, Idaho Power did not include any new conventional coal resources in the resource portfolio due to the uncertainty regarding future GHG regulations.  IDACORP and Idaho Power’s boards of directors continue to review environmental issues on a regular basis and in connection with the review of the companies’ strategic plans.  The boards of directors are also frequently informed of any new material environmental issues, including updates on any proposed legislation.

Renewable Standards:   The American Clean Energy and Security Act of 2009, in the form passed in the U.S. House of Representatives on June 26, 2009, would require utilities to obtain 20 percent of their electricity from renewable sources by 2020, and reduce demand an additional five percent through conservation and increased energy efficiency.  The Senate version, if enacted, would require electric utilities to meet 15 percent of their electricity sales through renewable sources of energy or energy efficiency by 2021.  Resources eligible to meet these standards include wind, solar, geothermal, biomass, landfill gas, ocean, and incremental hydropower (efficiency improvements or new capacity).  Both bills recognize the benefits of existing hydroelectric generation by allowing utilities to subtract generation from existing hydroelectric projects from their total sales base prior to calculating the percentage requirement.  Idaho Power will be required to comply with a ten percent renewable portfolio standard (RPS) in Oregon beginning in 2025.  Idaho Power expects to meet these requirements with the REC’s from the Elkhorn Valley wind project.  No RPS requirement currently exists in Idaho.  Idaho Power continues to monitor proposed federal renewable energy standard (RES) legislation, which if passed could increase Idaho Power’s capital expenditures and operating costs and reduce earnings and cash flows.

Idaho Power has contracts to purchase energy from seven wind projects that have already achieved commercial operations.  The combined nameplate rating of these projects is 192 MW.  Idaho Power also has an additional 275 MW of wind generation with signed and IPUC approved contracts that have not yet been constructed.  Idaho Power is currently negotiating a power purchase agreement for additional wind generation with a capacity of approximately 160 MW, pursuant to which Idaho Power would receive the RECs.  Idaho Power recently entered into an agreement with USG Oregon, LLC for the purchase of energy from a geothermal electric generation facility under development near Vale, Oregon, with an estimated 22 MW output and expected on-line date of late 2012.  Idaho Power has contracted to receive the RECs from the project during the term of the agreement.  On June 8, 2010, Idaho Power entered into a 20 year PURPA power purchase agreement with Grand View Solar PV One, LLC.  The solar power generation facility, which has not yet been constructed, is expected to have a 20-MW nameplate capacity and will be located in Elmore County, Idaho.  A decision from the IPUC regarding the prudency of power purchase costs included in the agreement is pending.  Idaho Power does not receive the RECs associated with PURPA projects and is selling its near-term RECs and returning to customers their share of those proceeds through the PCA.  Idaho Power filed a REC Management Plan with the IPUC in December 2009 to address its treatment of future RECs.  Under Idaho Power’s REC Management Plan, Idaho Power would sell near-term RECs, while continuing to acquire and hold long-term contractual rights to own RECs for use in meeting a future federal RES.  During the six months ended June 30, 2010, Idaho Power’s REC sales totaled $2.2 million.  Idaho Power has sold all of its 2009 and earlier vintage RECs.  Idaho Power has sold a portion of its 2010 RECs and intends to continue selling its 2010 RECs as they are generated and become available for sale.

 

Idaho Power continues to pursue additional geothermal, wind, and combined heat and power generation resource development opportunities.  Other renewable generation resources anticipated from future cogeneration and small power production contracts include solar, biomass, and additional wind projects.

 

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Air Quality:  Idaho Power co-owns three coal-fired power plants and owns two natural gas combustion turbine power plants that are subject to air quality regulation.  The coal-fired plants are:  Jim Bridger (33 percent interest) located in Wyoming; Boardman (10 percent interest) located in Oregon; and Valmy (50 percent interest) located in Nevada.  The natural gas-fired plants, Danskin and Bennett Mountain, are located in Idaho.  The CAA establishes controls on the emissions from stationary sources like those owned by Idaho Power.  The EPA adopts many of the standards and regulations under the CAA, while states have the primary responsibility for implementation and administration of these air quality programs.  In February 2010, a bill was introduced in the Senate to impose limits on SO 2 and NO x emissions from power plants starting in 2012 and to require at least a 90 percent reduction in mercury emissions from coal-fired generation.  Idaho Power continues to actively monitor, evaluate, and work on air quality issues pertaining to federal and state mercury emission rules, possible legislative amendment of the CAA as discussed above, National Ambient Air Quality Standards (NAAQS), and Regional Haze – Best Available Retrofit Technology (RH BART) and NSR permitting.

Idaho Power is currently in the process of constructing a natural gas-fired CCCT generating plant with a summer nameplate capacity of 300 MW and a winter capacity of approximately 330 MW in Payette County, Idaho, referred to as the Langley Gulch power plant.  The Langley Gulch power plant is currently estimated to be in service in July 2012.  On June 25, 2010, the Idaho Department of Environmental Quality issued to Idaho Power an air quality permit to construct the Langley Gulch power plant which imposes on Idaho Power, among other things, design, emissions monitoring, performance testing, reporting, and operating requirements, conditions, and limitations.

Mercury Emissions:   Mercury continuous emission monitoring systems have been installed on all of the coal-fired units at the Jim Bridger, Boardman, and Valmy plants and tests to confirm the accuracy of the data being collected are currently underway.  The EPA has announced that it is developing maximum achievable control technology (MACT) standards to reduce mercury emissions from coal-fired power plants.  Early indications are that these MACT standards will apply uniformly to all coal-fired power plants, unlike the cap-and-trade mercury standards of the Clean Air Mercury Rule.  In 2008, the State of Oregon adopted a mercury rule requiring Boardman to reduce mercury emissions by 90 percent or meet an emission rate of 0.6 lbs/trillion BTU by July 2012.  Idaho Power continues to monitor Wyoming and Nevada actions related to mercury emissions.  Idaho Power is unable to predict at this time what actions the EPA or the other states may take to reduce mercury emissions from its coal-fired power plants.  In April 2010, the U.S. District Court for the District of Columbia approved, by consent decree, a timetable that would require the EPA to propose a standard to control mercury emissions from coal-fired power plants by May 16, 2011, and to finalize it by November 2011.

National Ambient Air Quality Standards (NAAQS) :  In July 1997, the EPA adopted new NAAQS for ozone (8-hour ozone standard) and fine particulate matter of less than 2.5 micrometers in diameter (PM2.5 standard).  Regulations promulgated by the EPA to implement these NAAQS have been challenged and portions have been remanded back to the EPA for reconsideration.  The EPA and state efforts to implement the NAAQS adopted in 1997 are ongoing.  All of the counties in Idaho, Oregon, Nevada, and Wyoming where Idaho Power’s power plants operate currently are designated as meeting attainment with the 8-hour ozone and PM2.5 standards adopted by the EPA in 1997.

In December 2006, the EPA revised the NAAQS for PM2.5.  This new standard was challenged by a number of groups in the U.S. Court of Appeals for the District of Columbia Circuit and the court remanded the standard back to the EPA in February 2009.  All of the counties in Idaho, Nevada, Oregon and Wyoming where Idaho Power’s power plants operate currently were designated as meeting attainment with the revised PM2.5 NAAQS.  The impact of the new standard will not be known until the judicial appeals are completed and the associated regulatory programs are promulgated and implemented.

In March 2008, the EPA promulgated a final regulation which revised the 8-hour ozone NAAQS, and on January 19, 2010, the EPA proposed to adopt a more stringent 8-hour ozone NAAQS.  Idaho Power is unable to predict what impact the adoption of this standard may have on its operations.
 

On January 22, 2010, the EPA adopted a new NAAQS for NO2 at a level of 100 parts per billion averaged over a 1-hour period.  In addition, on June 22, 2010, the EPA adopted a new NAAQS for SO2 at a level of 75 parts per billion average over a one-hour period.  The EPA has not yet designated areas as attaining or not attaining these new

 

 

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NAAQS.  Idaho Power is unable to predict what impact the adoption and implementation of these standards may have on its operations.

Regional Haze – Best Available Retrofit Technology:   In accordance with federal regional haze rules, coal-fired utility boilers are subject to RH BART if they were built between 1962 and 1977 and affect any Class I areas.  This includes all four units at the Jim Bridger plant and the Boardman plant.  The two units at the Valmy plant were constructed after 1977 and are not subject to the federal regional haze rule.  The Wyoming Department of Environmental Quality (WDEQ) and the ODEQ have conducted assessments of the Boardman and Bridger plants pursuant to an RH BART process.  These states have also evaluated the need for additional controls at Boardman and Bridger to achieve reasonable progress toward a long term strategy beyond RH BART to reduce regional haze in Class I areas to natural conditions by the year 2064.

On December 31, 2009, the WDEQ issued a RH BART permit to PacifiCorp for the Jim Bridger plant.  The WDEQ determined that low NOx burners with over-fire air is RH BART for NOx for all four Bridger units and that RH BART is not required for SO2 for the Bridger plant.  As part of the WDEQ’s long term strategy for regional haze, the permit requires that PacifiCorp install selective catalytic reduction (SCR) for NOx control at Bridger Units 3 and 4 by December 31, 2015 and December 31, 2016, respectively, and submit an application by January 15, 2015 to install add-on NOx controls at Bridger Units 1 and 2 by December 31, 2023.  PacifiCorp is already in the process of installing low NOx burners and SO2 scrubber upgrades at the Bridger plant.  The SO2 scrubber upgrade project has been completed on Bridger Units 2 and 4 and is expected to be completed on the other two units by the end of 2011.  Idaho Power expects to spend approximately $22 million between 2009 and 2012 to complete these projects.  Idaho Power’s estimated share of the cost to install SCR on Bridger Units 3 and 4 is $120 million.  Installation of SCR also could require extended maintenance outages.  Design and cost estimates for add-on NOx controls at Bridger Units 1 and 2 are not yet available.  On February 26, 2010, PacifiCorp filed an administrative appeal of the Bridger RH BART permit with the Wyoming Environmental Quality Council.  PacifiCorp contends that WDEQ lacked the legal and technical basis to require the SCR and add-on NOx controls required by the permit.  Idaho Power will continue to monitor this process.  It is not possible for Idaho Power to predict the outcome of the administrative appeals process at this time.

On June 19, 2009, the Oregon Environmental Quality Commission adopted a rule that would require the installation of controls at Boardman in two phases.  The first phase, which ODEQ determined is RH BART, would require the installation of low NOx burners and over-fire air by July 1, 2011, and the installation of semi-dry flue gas desulfurization and a bag house by July 1, 2014.  The second phase, which is part of ODEQ’s long term strategy, would require the installation of SCR by July 1, 2017.  Idaho Power’s estimated share of the cost of the pollution control requirements for RH BART and the long term strategy is between approximately $52 million and $56 million.  Approximately three-quarters of the costs would be incurred by 2014 with the remainder incurred by 2017.  Installation of this pollution control equipment also could require extended maintenance outages.

On April 2, 2010, PGE submitted a petition requesting that the OEQC amend the RH BART and long term strategy requirements for the Boardman plant to be the installation of low NO x burners and over-fire air by July 1, 2011, the phased transition to reduced sulfur coal by December 31, 2011 and July 1, 2014, and the closure of Boardman plant coal-fired boiler by December 31, 2020.  However, on June 17, 2010, the OEQC denied PGE’s 2020 closure proposal and directed the ODEQ to explore additional options for early closure and initiate a rulemaking procedure.  On June 28, 2010, the ODEQ stated that it would begin a public discussion of three draft closure options for the Boardman plant, in advance of formal rulemaking.  The ODEQ’s three proposals contemplate early closure of the plant by 2020, 2018, or 2015-2016.  The ODEQ stated that the capital cost of installing pollution control equipment for each of the options would be $321 million, $103 million, and $36 million, respectively.  Each of the proposals would still require the Boardman plant to meet the current 2012 deadline for installing controls to meet the ODEQ’s mercury emission rules.  The ODEQ stated that its rules would be written such that PGE could choose any option, and that if no option is selected by PGE the existing rules adopted last year, which the ODEQ stated will involve a capital cost of $498 million, would apply.  Public meetings will be scheduled in September 2010 to discuss the proposals, and a final ruling is expected to be submitted to the OEQC in December 2010.  Idaho Power is a ten percent owner of the Boardman plant, representing 64 MW of nameplate capacity.  Idaho Power is evaluating and discussing with PGE the various options for early closure of the Boardman plant, as well as alternatives.  At June 30, 2010, Idaho Power’s net book value in the Boardman plant was approximately $20 million with annual depreciation of approximately $1.2 million.

 

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While not required under RH BART, installation of low NO x burners and over-fired upgrades has been completed at the Valmy plant.

New Source Review:   Since 1999, the EPA and the U.S. Department of Justice have been pursuing a national enforcement initiative focused on the compliance status of coal-fired power plants with the NSR permitting requirements and New Source Performance Standards (NSPS) of the CAA.  This initiative has resulted in both enforcement litigation and significant settlements with a large number of public utilities and other owners of coal-fired power plants across the country.  The current administration has indicated an intention to continue this NSR enforcement initiative.  The EPA sent information requests under section 114 of the CAA, requesting information relevant to NSR and NSPS compliance to the Jim Bridger plant in 2003, the Valmy plant in 2009, and the Boardman plant in 2008 with a follow up request for information in 2009.  Idaho Power is a co-owner of these plants, but does not operate the plants.  A number of utilities that have received section 114 information requests have engaged in negotiations with the EPA to address any allegations of non-compliance with NSR and NSPS requirements.  In some cases, such negotiations have resulted in settlements requiring the payment of civil penalties, installation of additional pollution controls, the surrender of emission allowances, and the completion of supplemental environmental projects.  Idaho Power cannot predict the outcome of these investigatory and enforcement matters at this time.

Coal Combustion Byproducts (CCBs) :  In December 2008, the breach of a dike at the Tennessee Valley Authority’s Kingston Station resulted in a spill of several million cubic yards of ash into a nearby river and onto private properties.  In June 2010, the EPA proposed regulations pursuant to the Resource Conservation and Recovery Act governing the disposal and management of CCBs.  The EPA requested comments on two options for regulating CCBs.  The first would regulate CCBs as a new “special waste” subject to many of the requirements for hazardous waste, while the second would regulate CCBs in a manner similar to typical solid waste, subject to fewer and less stringent environmental requirements.  Either of the EPA’s proposed options represents a shift toward more comprehensive and potentially more expensive requirements for CCBs disposal and management.  If this or other new legislation or regulations increase the cost of managing and disposing of CCBs or create additional liability with respect to historic disposal practices, they could have an adverse impact on Idaho Power’s consolidated financial position, results of operations, or cash flows.  However, the financial and operational consequences cannot be determined until final legislation is passed or regulations enacted.

PCBs :  In April 2010, the EPA issued an advance notice of proposed rulemaking pursuant to the Toxic Substances Control Act regarding the use of polychlorinated biphenyls (PCBs).  The EPA is considering revisiting the use authorization allowing the continued use of PCBs in equipment.  If new regulations require the replacement of existing equipment, they could have an adverse effect on Idaho Power’s consolidated financial position, results of operations, or cash flows.  However, the financial and operational consequences cannot be determined until final regulations are enacted.  Idaho Power currently records asset retirement obligation liabilities and associated regulatory assets for the estimated retirement costs of equipment containing PCBs.  Proposed regulations could accelerate Idaho Power’s estimated timing of the retirements of equipment with PCBs.

Endangered Species:

 

Slickspot Peppergrass:   This southwestern Idaho plant species was listed as threatened by the U.S. Fish and Wildlife Service (USFWS) effective December 2009.  While critical habitat for the plant was not designated at the time of listing, approximately 98 percent of the plant species is located on federal land owned by the BLM and the Department of Defense.  Parts of the Gateway West and Boardman to Hemingway 500 kV transmission lines and the Langley Gulch transmission and water lines will cross BLM land.  This listing will add an additional requirement and species for consideration in the ESA section 7 consultation.  A section 7 consultation is a process used to determine a proposed action’s effects on any ESA-listed species that may be within the project area.  This listing may increase the expense and delay the timing of permitting for these projects.
 

Sage Grouse:  On March 5, 2010, the USFWS announced that listing of the greater sage grouse as threatened or endangered under the ESA is warranted, but precluded by higher priority listing actions.  The sage grouse is now considered a “candidate species” under the ESA, which allows land management agencies to implement additional conservation measures in an effort to prevent a formal ESA listing.  Due to the presence of sage grouse in the



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vicinity, siting of Idaho Power’s Boardman to Hemingway and Gateway West 500-kV transmission lines has required more extensive, costly, and time consuming evaluation and engineering.  Newly proposed legislation in the State of Oregon relating to sage grouse may also adversely impact the project.  Any required additional conservation measures may increase the costs of existing operations and impact the cost and timing of siting and permitting of the Boardman to Hemingway and Gateway West transmission lines, the Langley Gulch project, and other construction and transmission projects.  Listing of the greater sage grouse as threatened or endangered under the ESA would add an additional requirement and species for consideration in ESA section 7 consultations for those projects, and may increase the expense and adversely affect the cost and timing of those projects.

Hells Canyon Project:   In 2007, the FERC requested initiation of formal consultation under the ESA with the National Marine Fisheries Service (NMFS) and the USFWS regarding potential effects of HCC relicensing on several listed aquatic and terrestrial species.  Formal consultation has not yet been initiated and NMFS and USFWS continue to gather and consider information relative to the effects of relicensing on relevant species.  Idaho Power continues to cooperate with the USFWS, the NMFS, and the FERC in an effort to address ESA concerns.  Idaho Power may be required to modify operations pursuant to the biological opinion that will result from formal consultation.  However, the issuance of a final biological opinion within the next 18 to 24 months is unlikely.

Bliss and Lower Salmon Falls Projects:   Idaho Power is finalizing a snail protection plan in cooperation with the USFWS.  If the plan is approved by the FERC, Idaho Power will file applications with the FERC to amend the licenses for the Bliss and Lower Salmon Falls projects that will maintain operating flexibility at both projects for the remainder of their licenses.

OTHER MATTERS:

 

Critical Accounting Policies and Estimates

 

IDACORP’s and Idaho Power’s discussion and analysis of their financial condition and results of operations are based upon their condensed consolidated financial statements, which have been prepared in accordance with generally accepted accounting principles.  The preparation of these financial statements requires IDACORP and Idaho Power to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses and related disclosure of contingent assets and liabilities.  On an ongoing basis, IDACORP and Idaho Power evaluate these estimates, including those estimates related to rate regulation, benefit costs, contingencies, litigation, impairment of assets, income taxes, unbilled revenue, and bad debt.  These estimates are based on historical experience and on other assumptions and factors that are believed to be reasonable under the circumstances, and are the basis for making judgments about the carrying values of assets and liabilities that are not readily apparent from other sources.  IDACORP and Idaho Power, based on their ongoing reviews, make adjustments when facts and circumstances dictate.

IDACORP’s and Idaho Power’s critical accounting policies are reviewed by the Audit Committee of the boards of directors.  These policies are discussed in more detail under “Critical Accounting Policies and Estimates” in the Annual Report on Form 10-K for the year ended December 31, 2009, and have not changed materially from that discussion.

Recently Issued Accounting Pronouncements

 

See Note 1 – “Summary of Significant Accounting Policies” to the condensed consolidated financial statements included in this report for a discussion of recently issued accounting pronouncements.

 

 

 

 

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ITEM 3.  QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

IDACORP and Idaho Power are exposed to market risks, including changes in interest rates, changes in commodity prices, credit risk, and equity price risk.  The following discussion summarizes these risks and the financial instruments, derivative instruments, and derivative commodity instruments sensitive to changes in interest rates, commodity prices, and equity prices that were held at June 30, 2010:

Interest Rate Risk

 

IDACORP’s and Idaho Power’s interest rate risk has not changed materially from that reported in Item 7A of the Annual Report on Form 10-K for the year ended December 31, 2009.

Commodity Price Risk

 

IDACORP’s and Idaho Power’s commodity price risk has not changed materially from that reported in Item 7A of the Annual Report on Form 10-K for the year ended December 31, 2009.  Information regarding Idaho Power’s use of derivative instruments to manage commodity price risk can be found in Note 12 – “Derivative Financial Instruments” to the condensed consolidated financial statements included in this report.

Credit Risk

 

Idaho Power is subject to credit risk based on its activity with market counterparties.  Idaho Power is exposed to this risk to the extent that a counterparty may fail to fulfill a contractual obligation to provide energy, purchase energy, or complete financial settlement for market activities.  Idaho Power mitigates this exposure by actively establishing credit limits, measuring, monitoring, and reporting credit risk using appropriate contractual arrangements, and transferring of credit risk through the use of financial guarantees, cash or letters of credit.  Idaho Power maintains a current list of acceptable counterparties and credit limits.

The use of performance assurance collateral in the form of cash, letters of credit, or guarantees is common industry practice.  Idaho Power maintains margin agreements that allow performance assurance collateral to be requested of and/or posted with certain counterparties.  As of June 30, 2010, Idaho Power had posted approximately $7 million of assurance collateral.  Should Idaho Power experience a reduction in its credit rating on Idaho Power’s unsecured debt to below investment grade, Idaho Power could be subject to additional requests by its wholesale counterparties to post additional performance assurance collateral.  Counterparties to derivative instruments and other forward contracts could request immediate payment or demand immediate ongoing full daily collateralization on derivative instruments and contracts in net liability positions.  Based upon Idaho Power’s current energy and fuel portfolio and current market conditions as of June 30, 2010, the approximate amount of additional collateral that could be requested upon a downgrade is approximately $23 million.  Idaho Power actively monitors the portfolio exposure and the potential exposure to additional requests for performance assurance collateral calls, through sensitivity analysis, to minimize capital requirements.

Idaho Power’s credit risk related to uncollectible accounts has not changed materially from that reported in Item 7A of the Annual report on Form 10-K for the year ended December 31, 2009.

Equity Price Risk

 

IDACORP’s and Idaho Power’s equity price risk has not changed materially from that reported in Item 7A of the Annual Report on Form 10-K for the year ended December 31, 2009.

 

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 ITEM 4.  CONTROLS AND PROCEDURES

 

Disclosure Controls and Procedures

 

IDACORP:   The Chief Executive Officer and the Chief Financial Officer of IDACORP, based on their evaluation of IDACORP’s disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) as of June 30, 2010, have concluded that IDACORP’s disclosure controls and procedures are effective as of that date.

Idaho Power:   The Chief Executive Officer and the Chief Financial Officer of Idaho Power, based on their evaluation of Idaho Power’s disclosure controls and procedures (as defined in Exchange Act Rule 13a-15(e)) as of June 30, 2010, have concluded that Idaho Power’s disclosure controls and procedures are effective as of that date.

Changes in Internal Control Over Financial Reporting

 

There have been no changes in IDACORP’s or Idaho Power’s internal control over financial reporting during the quarter ended June 30, 2010, that have materially affected, or are reasonably likely to materially affect, IDACORP’s or Idaho Power’s internal control over financial reporting.

PART II – OTHER INFORMATION

 

ITEM 1.  LEGAL PROCEEDINGS

 

Please refer to Note 9 - “Contingencies” to the condensed consolidated financial statements included in this report.

ITEM 1A.  RISK FACTORS

 

In addition to the other information set forth in this report, you should carefully consider the factors discussed in Part I - Item 1A - “Risk Factors” in IDACORP’s and Idaho Power Company’s Annual Report on Form 10-K for the year ended December 31, 2009, as supplemented by the discussion below, which could materially affect IDACORP’s and Idaho Power’s business, financial condition, or future results.  The following are updates to the risk factors reported in the Annual Report on Form 10-K for the year ended December 31, 2009.

If the Idaho Public Utilities Commission, the Oregon Public Utility Commission or the Federal Energy Regulatory Commission grant less rate recovery in rate case filings than Idaho Power Company needs to cover its costs of providing services, earnings and cash flows may be reduced .  The prices that the Idaho Public Utilities Commission and Oregon Public Utility Commission authorize Idaho Power Company to charge for its retail services and the tariff rate that the Federal Energy Regulatory Commission permits Idaho Power Company to charge for transmission, are major factors in determining IDACORP’s and Idaho Power Company’s operating income and financial position.  The Idaho Public Utilities Commission and Oregon Public Utility Commission have the authority to disallow recovery of any costs that they consider unreasonable or imprudently incurred, and the Federal Energy Regulatory Commission formula rates may be insufficient for recovery of costs incurred.  While the Idaho Public Utilities Commission and Oregon Public Utility Commission have established through the ratemaking process an authorized rate of return for Idaho Power Company, the regulatory process does not provide assurance that Idaho Power Company will be able to achieve the earnings level authorized.  Further, while the Idaho Public Utilities Commission and Oregon Public Utility Commission are required to establish rates that are fair, just, and reasonable, they have significant discretion in determining the application of this standard.

In January 2010, the Idaho Public Utilities Commission approved a settlement agreement that imposed a general rate moratorium in effect until January 1, 2012.  While the moratorium does not apply to other specified revenue requirement proceedings, such as the power cost adjustment, the fixed cost adjustment, pension funding, advanced metering infrastructure, energy efficiency rider, and government imposed fees, Idaho Power Company attempts to manage its costs consistent with the moratorium.  However, if Idaho Power Company is unable to do so, or if such cost management results in increased operational risk, the moratorium could adversely affect Idaho Power Company’s operations or results of operations.

76

 


 


In its Oregon jurisdiction, Idaho Power Company utilizes a power cost adjustment mechanism by which it can adjust future prices to reflect a portion of the difference between each year’s forecasted and actual net variable power costs.  Use of the approved cost sharing methodology requires that Idaho Power Company absorb certain power cost increases before it is allowed to recover any amount from customers, with the range of deviations in which Idaho Power Company absorbs the cost increases or decreases referred to as a “deadband.”  Accordingly, the power cost adjustment mechanism only partially offsets the potentially adverse financial impacts of forced generating plant outages, severe weather, reduced hydro generating availability, and volatile wholesale energy prices.

If the Idaho Public Utilities Commission or Oregon Public Utility Commission grant less rate recovery in rate case filings than Idaho Power Company needs to cover its costs, or if the Federal Energy Regulatory Commission makes changes to the formula rates for transmission tariffs, it may reduce earnings and cash flows.

Conditions that may be imposed in connection with hydroelectric license renewals may require large capital expenditures, increase operating costs, reduce hydroelectric production, and reduce earnings and cash flows.   Idaho Power Company is currently involved in renewing federal licenses for some of its hydroelectric projects, including its largest hydroelectric generation source, the Hells Canyon Complex.  Relicensing includes an extensive public review process that involves numerous natural resource issues and environmental conditions.  The listing of various species of salmon, wildlife, and plants as threatened or endangered has resulted in significant changes to federally-authorized activities, including those of hydroelectric projects.  Salmon recovery plans could include further major operational changes to the region’s hydroelectric projects.  In addition, new interpretations of existing laws and regulations could be adopted or become applicable to such facilities, which could further increase required expenditures for salmon recovery and endangered species protection and reduce the amount of hydroelectric generation available to meet Idaho Power Company’s energy requirements.

In 2007, the Federal Energy Regulatory Commission Staff issued a final environmental impact statement for the Hells Canyon Complex, which Idaho Power expects Federal Energy Regulatory Commission will use to determine whether, and under what conditions, to issue a new license for the Hells Canyon Complex.  Certain portions of the final environmental impact statement involve issues that may be influenced by water quality certifications for the project under section 401 of the Clean Water Act and formal consultations under the Endangered Species Act, which remain unresolved.  One significant issue involves water temperature gradients, and certain interested parties in the Hells Canyon Complex relicensing proceedings have proposed the installation of water temperature management apparatus which, if required to be installed, would likely require substantial capital expenditures to construct and maintain.  There can be no assurance that recovery through rates would be authorized, particularly given the magnitude of any potential impact on customer rates, which at this time cannot be accurately predicted.  Idaho Power Company cannot predict the requirements that might be imposed during the relicensing process, the economic impact of those requirements, or whether a new license will ultimately be issued.  Imposition of onerous conditions in the relicensing process could have a material adverse effect on Idaho Power Company’s operations, require large capital expenditures, increase operating costs, reduce hydroelectric production, and reduce earnings and cash flows.

Idaho Power Company’s business is subject to substantial governmental regulation and may be adversely affected by increased costs resulting from, or liability under, existing or future regulations or requirements.   Idaho Power Company is subject to extensive federal and state laws, policies, and regulations, as well as regulatory actions and regulatory audits, including those of the Federal Energy Regulatory Commission, the Environmental Protection Agency, the North American Electric Reliability Corporation, the Western Electricity Coordinating Council, and the public utility commissions in Idaho, Oregon, and Wyoming.  Some of these regulations are changing or subject to interpretation, and failure to comply may result in penalties or other adverse consequences.  Idaho Power Company has self-reported compliance issues to the Federal Energy Regulatory Commission and to the Western Electricity Coordinating Council, and the Western Electricity Coordinating Council has recently completed an audit of reliability standards.  Several of the matters self-reported to the Federal Energy Regulatory Commission and the Western Electricity Coordinating Council remain outstanding.  Compliance with these requirements directly influences Idaho Power’s operating environment and may significantly increase Idaho Power’s operating costs.  Further, potential monetary and non-monetary penalties for violation of Federal Energy Regulatory Commission regulations may be substantial, and in some circumstances monetary penalties may be as high as $1 million per day per violation.  The imposition of penalties on Idaho Power Company could have an adverse impact on Idaho Power Company’s and IDACORP’s results of operations, financial condition, and cash flows.

 

77

 


 

 

Recent negative publicity in the energy sector may result in public opposition to Idaho Power Company’s power generation and transmission projects and increased environmental and other regulations, which may adversely impact IDACORP’s and Idaho Power Company’s results of operations, financial condition, and cash flows.  The energy sector in general has been the subject of negative publicity, most recently in the context of the dialogue regarding factors contributing to climate change and the sourcing of fuels.  Idaho Power Company, in particular, has faced public opposition in connection with its transmission expansion initiatives and ordinary utility rate increases.  Negative publicity and public opposition of this nature may make legislators, regulators, and courts, whether as a result of public opposition or otherwise, less likely to take a favorable view of energy companies in general or Idaho Power Company specifically, which could cause them to make decisions or take actions that are adverse to Idaho Power Company.  In addition to the direct costs Idaho Power Company may incur as a result of any such new environmental laws and regulations, the increased costs incurred by other energy and natural resource companies as a result of complying with new environmental laws and regulations may increase the cost of purchasing power in the wholesale markets, which could adversely impact Idaho Power Company’s results of operations, financial condition, and cash flows.

Idaho Power Company’s ability to enter into over-the-counter derivatives and hedge commodity and interest rate risk may be adversely affected by recent federal legislation .  In July 2010, Congress enacted, and President Obama signed, financial reform legislation known as the Dodd-Frank Wall Street Reform and Consumer Protection Act.  Title VII of the legislation provides for the regulation of the over-the-counter derivatives market, and requires the posting of cash collateral for uncleared swaps.  If the rules enacted under the legislation require that Idaho Power Company post cash collateral on its swap transactions, its liquidity may be adversely affected, and rules promulgated under the legislation may limit Idaho Power Company’s ability to enter into over-the-counter derivatives to hedge commodity and interest rate risks.

ITEM 2.  UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

Restrictions on Dividends

 

A covenant under IDACORP’s credit facility and Idaho Power’s credit facility requires IDACORP and Idaho Power to maintain leverage ratios of consolidated indebtedness to consolidated total capitalization, as defined therein, of no more than 65 percent at the end of each fiscal quarter.  Idaho Power’s Revised Code of Conduct approved by the IPUC on April 21, 2008, states that Idaho Power will not pay any dividends to IDACORP that will reduce Idaho Power’s common equity capital below 35 percent of its total adjusted capital without IPUC approval.  Idaho Power’s ability to pay dividends on its common stock held by IDACORP and IDACORP’s ability to pay dividends on its common stock are limited to the extent payment of such dividends would violate the covenants or Idaho Power’s Revised Code of Conduct.

Idaho Power’s articles of incorporation contain restrictions on the payment of dividends on its common stock if preferred stock dividends are in arrears.  Idaho Power has no preferred stock outstanding.  Further, Idaho Power must obtain approval of the OPUC before it could directly or indirectly loan funds or issue notes or give credit on its books to IDACORP.

See Note 6 - “Common Stock” to the condensed consolidated financial statements included in this report for a further discussion of restrictions on IDACORP’s and Idaho Power’s payment of dividends.

Idaho Power must obtain approval of the OPUC before it could directly or indirectly loan funds or issue notes or give credit on its books to IDACORP.
 

78

 


 


Issuer Purchases of Equity Securities

 

During the quarter ended June 30, 2010, IDACORP effected the following repurchases of its common stock:

 

 

 

(c)

(d)

 

Total Number of

Maximum Number

 

(a)

Shares Purchased

(or Approximate

 

Total

(b)

as Part of Publicly

Dollar Value) of

 

Number of

Average

Announced Plans

Shares that May Yet

 

Shares

Price Paid

or

Be Purchased Under

Period

Purchased 1

per Share

Programs

the Plans or Programs

 

 

 

 

 

April 1 – April 30, 2010

459

$

36.08

-

-

May 1 – May 31, 2010

-

 

-

-

-

June 1 – June 30, 2010

-

 

-

-

-

 

Total

459

$

36.08

-

-

 

1 These shares were withheld for taxes upon vesting of restricted stock.

 

 

79

 


 


  ITEM 6.  EXHIBITS

 

Exhibit No.

Description

*4.11

Idaho Power Company Forty-sixth Supplemental Indenture to Mortgage and Deed of Trust, dated as of June 1, 2010.  File number 1-3198, Form 8-K, filed on 6/18/2010 as Exhibit 4.

4.12

Idaho Power Company Instrument of Further Assurance relating to Mortgage and Deed of Trust, dated as of August 3, 2010.

*10.31 1

IDACORP, Inc. Executive Incentive Plan, as amended March 18, 2010 and approved May 20, 2010.  File number 1-14465, 1-3198, Form 8-K, filed on 5/21/2010 as Exhibit 10.1.

10.66 1

IDACORP, Inc. and/or Idaho Power Company Executive Officers with Amended and Restated Change in Control Agreements Chart, as of June 30, 2010.

10.69

Joint Purchase and Sale Agreement, dated April 30, 2010, by and between Idaho Power Company and PacifiCorp.

10.70

Hemingway Joint Ownership and Operating Agreement, dated May 3, 2010, by and between Idaho Power Company and PacifiCorp.

10.71

Populus Joint Ownership and Operating Agreement, dated May 3, 2010, by and between Idaho Power Company and PacifiCorp.

12.1

IDACORP, Inc. Computation of Ratio of Earnings to Fixed Charges and Supplemental Ratio of Earnings to Fixed Charges.

12.2

Idaho Power Company Computation of Ratios of Earnings to Fixed Charges and Supplemental Ratio of Earnings to Fixed Charges.

15.1

Letter Re:  Unaudited Interim Financial Information.

31.1

IDACORP, Inc. Rule 13a-14(a) CEO certification.

31.2

IDACORP, Inc. Rule 13a-14(a) CFO certification.

31.3

Idaho Power Rule 13a-14(a) CEO certification.

31.4

Idaho Power Rule 13a-14(a) CFO certification.

32.1

IDACORP, Inc. Section 1350 CEO certification.

32.2

IDACORP, Inc. Section 1350 CFO certification.

32.3

Idaho Power Section 1350 CEO certification.

32.4

Idaho Power Section 1350 CFO certification.

99.1

Earnings press release for the second quarter 2010.

101.INS 2

XBRL Instance Document

101.SCH 2

XBRL Taxonomy Extension Schema Document

101.CAL 2

XBRL Taxonomy Extension Calculation Linkbase Document

101.DEF 2

XBRL Taxonomy Extension Definition Linkbase Document

101.LAB 2

XBRL Taxonomy Extension Label Linkbase Document

101.PRE 2

XBRL Taxonomy Extension Presentation Linkbase Document

 

 

*  Previously filed and incorporated herein by reference

1  Management contract or compensatory plan or arrangement

2   Includes data files for the following materials from the quarterly report on Form 10-Q of IDACORP, Inc. for the interim period ended June 30, 2010, formatted in Extensible Business Reporting Language (XBRL): (i) the Condensed Consolidated Statements of Income; (ii) the Condensed Consolidated Balance Sheets; (iii) the Condensed Consolidated Statements of Cash Flows; (iv) the Condensed Consolidated Statements of Comprehensive Income; (v) the Condensed Consolidated Statements of Equity; and (vi) the Notes to Condensed Consolidated Financial Statements tagged as blocks of text.  Pursuant to Rule 406T of SEC Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, are deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934 and otherwise are not subject to liability under those sections.  These files are being furnished only by IDACORP, Inc. and not by its subsidiary, Idaho Power Company.

 

80

 


 


SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrants have duly caused this report to be signed on their behalf by the undersigned thereunto duly authorized.

 

 

 

IDACORP, INC.

 

 

(Registrant)

 

 

 

 

 

 

 

 

 

 

 

 

Date:

August 5, 2010

By:

/s/ J. LaMont Keen

 

 

 

J. LaMont Keen

 

 

 

President and Chief Executive Officer

 

 

 

 

Date:

August 5, 2010

By:

/s/ Darrel T. Anderson

 

 

 

Darrel T. Anderson

 

 

 

Executive Vice President - Administrative

 

 

 

Services and Chief Financial Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IDAHO POWER COMPANY

 

 

(Registrant)

 

 

 

 

 

 

 

 

 

 

 

 

Date:

August 5, 2010

By:

/s/ J. LaMont Keen

 

 

 

J. LaMont Keen

 

 

 

President and Chief Executive Officer

 

 

 

 

Date:

August 5, 2010

By:

/s/ Darrel T. Anderson

 

 

 

Darrel T. Anderson

 

 

 

Executive Vice President - Administrative

 

 

 

Services and Chief Financial Officer

 

 

 

 

81

 


 


  EXHIBIT INDEX

Exhibit No.

Description

 

 

4.12

Idaho Power Company Instrument of Further Assurance relating to Mortgage and Deed of Trust, dated as of August 3, 2010.

10.66 1

IDACORP, Inc. and/or Idaho Power Company Executive Officers with Amended and Restated Change in Control Agreements Chart, as of June 30, 2010.

10.69

Joint Purchase and Sale Agreement, dated April 30, 2010, by and between Idaho Power Company and PacifiCorp.

10.70

Hemingway Joint Ownership and Operating Agreement, dated May 3, 2010, by and between Idaho Power Company and PacifiCorp.

10.71

Populus Joint Ownership and Operating Agreement, dated May 3, 2010, by and between Idaho Power Company and PacifiCorp.

12.1

IDACORP, Inc. Computation of Ratio of Earnings to Fixed Charges and Supplemental Ratio of Earnings to Fixed Charges.

12.2

Idaho Power Company Computation of Ratios of Earnings to Fixed Charges and Supplemental Ratio of Earnings to Fixed Charges.

15.1

Letter Re:  Unaudited Interim Financial Information.

31.1

IDACORP, Inc. Rule 13a-14(a) CEO certification.

31.2

IDACORP, Inc. Rule 13a-14(a) CFO certification.

31.3

Idaho Power Rule 13a-14(a) CEO certification.

31.4

Idaho Power Rule 13a-14(a) CFO certification.

32.1

IDACORP, Inc. Section 1350 CEO certification.

32.2

IDACORP, Inc. Section 1350 CFO certification.

32.3

Idaho Power Section 1350 CEO certification.

32.4

Idaho Power Section 1350 CFO certification.

99.1

Earnings press release for the second quarter 2010.

101.INS 2

XBRL Instance Document.

101.SCH 2

XBRL Taxonomy Extension Schema Document.

101.CAL 2

XBRL Taxonomy Extension Calculation Linkbase Document.

101.DEF 2

XBRL Taxonomy Extension Definition Linkbase Document.

101.LAB 2

XBRL Taxonomy Extension Label Linkbase Document.

101.PRE 2

XBRL Taxonomy Extension Presentation Linkbase Document.

 

 

1  Management contract or compensatory plan or arrangement

2   Includes data files for the following materials from the quarterly report on Form 10-Q of IDACORP, Inc. for the interim period ended June 30, 2010, formatted in Extensible Business Reporting Language (XBRL): (i) the Condensed Consolidated Statements of Income; (ii) the Condensed Consolidated Balance Sheets; (iii) the Condensed Consolidated Statements of Cash Flows; (iv) the Condensed Consolidated Statements of Comprehensive Income; (v) the Condensed Consolidated Statements of Equity; and (vi) the Notes to Condensed Consolidated Financial Statements tagged as blocks of text.  Pursuant to Rule 406T of SEC Regulation S-T, these interactive data files are deemed not filed or part of a registration statement or prospectus for purposes of Sections 11 or 12 of the Securities Act of 1933, are deemed not filed for purposes of Section 18 of the Securities Exchange Act of 1934 and otherwise are not subject to liability under those sections.  These files are being furnished only by IDACORP, Inc. and not by its subsidiary, Idaho Power Company.

82

 


 

Exhibit 4.12

 

IDAHO POWER COMPANY

TO

DEUTSCHE BANK TRUST COMPANY AMERICAS

AND

STANLEY BURG,

As Trustees under its Mortgage and Deed of Trust
dated as of October 1, 1937.

                                               

Instrument of Further Assurance

Dated as of August 3, 2010

 

 

 

 

 


 


 

 

 

 

 

INSTRUMENT OF FURTHER ASSURANCE

INSTRUMENT OF FURTHER ASSURANCE dated as of the 3 rd day of August, 2010 made by IDAHO POWER COMPANY, a corporation of the State of Idaho (successor by merger to Idaho Power Company, a corporation of the State of Maine, hereinafter sometimes called the “Maine Company”), whose address is 1221 West Idaho Street, Boise, Idaho 83702-5627 (hereinafter sometimes called the “Company”), for the benefit of DEUTSCHE BANK TRUST COMPANY AMERICAS, formerly known as Bankers Trust Company, a corporation of the State of New York whose post office address is 60 Wall Street, New York, New York 10005 (hereinafter sometimes called the “Corporate Trustee”), and Stanley Burg (hereinafter sometimes called the “Individual Trustee”; the Corporate Trustee and the Individual Trustee being hereinafter together sometimes called the “Trustees”), as Trustees under the Mortgage and Deed of Trust dated as of October 1, 1937 hereinafter referred to.

WHEREAS, the Maine Company has heretofore executed and delivered to the Trustees its Mortgage and Deed of Trust, dated as of October 1, 1937, recorded as shown on Exhibit A attached hereto, which Exhibit A is incorporated by reference into this Instrument of Further Assurance (such Mortgage and Deed of Trust hereinafter sometimes referred to as the “Original Indenture”) to secure the payment both of the principal of and interest and premium, if any, on all Bonds at any time issued and outstanding thereunder and to declare the terms and conditions upon which Bonds are to be issued thereunder; and

WHEREAS, the Maine Company was merged into the Company on June 30, 1989; and

WHEREAS, in order to evidence the succession of the Company to the Maine Company and the assumption by the Company of the covenants and conditions of the Maine Company in the Bonds and in the Original Indenture, as supplemented, contained, and to enable the Company to have and exercise the powers and rights of the Maine Company under the Original Indenture, as supplemented, in accordance with the terms thereof, the Company executed and delivered to the Trustees a Twenty-eighth Supplemental Indenture, dated as of June 30, 1989, recorded as shown on Exhibit A (which supplemental indenture is hereinafter sometimes called the “Twenty-eighth Supplemental Indenture”); and

WHEREAS, said Twenty-eighth Supplemental Indenture was recorded in the records of the Counties of Elko,, Humboldt and Lander, Nevada; the Counties of Baker, Grant, Harney, Malheur, Morrow, Union and Wallowa, Oregon; the Counties of Ada, Adams, Bannock, Bear Lake, Bingham, Blaine, Boise, Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Elmore, Gem, Gooding, Idaho, Jefferson, Jerome, Lemhi, Lincoln, Minidoka, Oneida, Owyhee, Payette, Power, Twin Falls, Valley and Washington, Idaho; the Counties of Lincoln and Sweetwater, Wyoming, all as shown on Exhibit A , and with the Secretary of State of the States of Idaho, Montana, Oregon, Nevada and Wyoming; and

WHEREAS, in accordance with the terms of the Original Indenture, the Maine Company or the Company has executed and delivered to the Trustees the following supplemental indentures in addition to the Twenty-eighth Supplemental Indenture:

 

 

 


 


 

 

Designation

Dated as of

First Supplemental Indenture

July 1, 1939

Second Supplemental Indenture

November 15, 1943

Third Supplemental Indenture

February 1, 1947

Fourth Supplemental Indenture

May 1, 1948

Fifth Supplemental Indenture

November 1, 1949

Sixth Supplemental Indenture

October 1, 1951

Seventh Supplemental Indenture

January 1, 1957

Eighth Supplemental Indenture

July 15, 1957

Ninth Supplemental Indenture

November 15, 1957

Tenth Supplemental Indenture

April 1, 1958

Eleventh Supplemental Indenture

October 15, 1958

Twelfth Supplemental Indenture

May 15, 1959

Thirteenth Supplemental Indenture

November 15, 1960

Fourteenth Supplemental Indenture

November 1, 1961

Fifteenth Supplemental Indenture

September 15, 1964

Sixteenth Supplemental Indenture

April 1, 1966

Seventeenth Supplemental Indenture

October 1, 1966

Eighteenth Supplemental Indenture

September 1, 1972

Nineteenth Supplemental Indenture

January 15, 1974

Twentieth Supplemental Indenture

August 1, 1974

Twenty-first Supplemental Indenture

October 15, 1974

Twenty-second Supplemental Indenture

November 15, 1976

Twenty-third Supplemental Indenture

August 15, 1978

Twenty-fourth Supplemental Indenture

September 1, 1979

Twenty-fifth Supplemental Indenture

November 1, 1981

Twenty-sixth Supplemental Indenture

May 1, 1982

Twenty-seventh Supplemental Indenture

May 1, 1986

Twenty-ninth Supplemental Indenture

January 1, 1990

Thirtieth Supplemental Indenture

January 1, 1991

Thirty-first Supplemental Indenture

August 15, 1991

Thirty-second Supplemental Indenture

March 15, 1992

Thirty-third Supplemental Indenture

April 1, 1993

Thirty-fourth Supplemental Indenture

December 1, 1993

Thirty-fifth Supplemental Indenture

November 1, 2000

Thirty-sixth Supplemental Indenture

October 1, 2001

Thirty-seventh Supplemental Indenture

April 1, 2003

Thirty-eighth Supplemental Indenture

May 15, 2003

Thirty-ninth Supplemental Indenture

October 1, 2003

Fortieth Supplemental Indenture

May 1, 2005

Forty-first Supplemental Indenture

October 1, 2006

Forty-second Supplemental Indenture

May 1, 2007

Forty-third Supplemental Indenture

September 1, 2007

Forty-fourth Supplemental Indenture

April 1, 2008

Forty-fifth Supplemental Indenture

February 1, 2010

Forty-sixth Supplemental Indenture

June 1, 2010

 

2

 


 

each of which is supplemental to the Original Indenture; and

WHEREAS, the Original Indenture and said Supplemental Indentures (except said Fifteenth Supplemental Indenture) have each been recorded in the records of the Counties of Elko, Humboldt and Lander, Nevada; the Counties of Baker, Grant, Harney, Malheur, Morrow, Union and Wallowa, Oregon; the Counties of Ada, Adams, Bannock, Bear Lake, Bingham, Blaine, Boise, Bonneville, Butte, Camas, Canyon, Caribou, Cassia, Clark, Elmore, Gem, Gooding, Idaho, Jefferson, Jerome, Lemhi, Lincoln, Minidoka, Oneida, Owyhee, Payette, Power, Twin Falls, Valley and Washington, Idaho; the Counties of Lincoln and Sweetwater, Wyoming, all as set forth in Exhibit A hereto, and with the Secretary of State of the States of Idaho, Montana, Oregon, Nevada and Wyoming (the Original Indenture and all indentures supplemental thereto together being hereinafter sometimes referred to as the “Indenture”); and

WHEREAS, the Original Indenture and certain of said Supplemental Indentures provide, among other things, that the Indenture shall be a lien upon all properties, real, personal and mixed (except any expressly excepted) which the Company owned at the time of the execution and delivery by the Company of the Original Indenture or thereafter acquired; and

WHEREAS, by Section 42 of the Original Indenture, the Company covenanted that it would execute and deliver such further instruments and do such further acts as may be necessary or proper to carry out more effectually the purposes of the Original Indenture and to make subject to the lien of the Indenture any property thereafter acquired intended to be subject to the lien thereof; and

WHEREAS, the properties generally described or referred to in the Indenture include, without limitation, the real properties more specifically described or referred to herein.

NOW, THEREFORE, THIS INSTRUMENT WITNESSETH:

That in consideration of the premises and of One Dollar to it duly paid by the Trustees at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, and in order to secure the payment both of the principal of and interest and premium, if any, on all Bonds at any time issued and outstanding under the Indenture, according to their tenor and effect, and the performance of all the provisions of the Indenture and of said Bonds, the Company has duly executed and delivered to the Trustees this Instrument of Further Assurance and has granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over and confirmed and by these presents does grant, bargain, sell, release, convey, assign, transfer, mortgage, pledge, set over and confirm unto Stanley Burg and (to the extent of its legal capacity to hold the same for the purposes hereof) unto Deutsche Bank Trust Company Americas, as Trustees as aforesaid, and to their successor or successors in said trust, and to them and their successors, heirs and assigns forever, all property, whether real, personal or mixed (except any hereinafter expressly excepted), and wheresoever situated, owned by the Company as of the date of the Original Indenture or acquired since the date of said Original Indenture by and now or hereafter owned by the Company including the following described properties, rights and interests in property--that is to say:

3

 


 


 

 

 

 

(a)        all generating plants, transmission lines and systems, distribution lines and systems, substations and switch racks, franchises, telephone lines, improvements and buildings;

(b)        all real properties owned in fee, which are specifically described in the instruments listed in and/or referred to by recording information in Exhibit B attached hereto and incorporated herein by reference (which actual instruments listed in and/or referred to in Exhibit B are also incorporated into this Instrument of Further Assurance by reference) to the extent any of the same has not been heretofore released;

(c)        all equipment and fixtures; and

all other property, whether real, personal or mixed (except any hereinafter expressly excepted), and wheresoever situated, owned by the Company as of the date of the Original Indenture or acquired since the date of said Original Indenture by and now or hereafter owned by the Company.

TOGETHER with all and singular the tenements, hereditaments and appurtenances belonging or in any wise appertaining to the aforesaid property or any part thereof, with the reversion and reversions, remainder and remainders, and (subject to the provisions of Section 57 of the Original Indenture) the tolls, rents, revenues, issues, earnings, income, product and profits thereof, and all the estate, right, title and interest and claim whatsoever, at law as well as in equity, which the Company now has or may hereafter acquire in and to the aforesaid property and franchises and every part and parcel thereof.

It is not intended herein or hereby to include in or subject to the lien of the Indenture, and the granting clauses hereof shall not be deemed to apply to, (1) any revenues, earnings, rents, issues, income or profits of the mortgaged and pledged property, or any bills, notes or accounts receivable, contracts or choses in action, except to the extent permitted by law in case a completed default specified in Section 65 of the Indenture shall have occurred and be continuing and either or both of the Trustees, or a receiver or trustee, shall have entered upon or taken possession of the mortgaged and pledged property, or (2) in any case, unless specifically subjected to the lien thereof, any bonds, notes, evidences of indebtedness, shares of stock, or other securities or any cash (except cash deposited with the Corporate Trustee pursuant to any provisions of the Indenture) or any goods, wares, merchandise, equipment or apparatus manufactured or acquired for the purpose of sale or resale in the usual course of business.

TO HAVE AND TO HOLD all such properties, real, personal and mixed, granted, bargained, sold, released, conveyed, assigned, transferred, mortgaged, pledged, set over or confirmed by the Company as aforesaid, or intended so to be, unto the Individual Trustee and (to the extent of its legal capacity to hold the same for the purposes of the Indenture) unto the Corporate Trustee, and their successors, heirs and assigns forever;

4

 


 


 

 

 

 

IN TRUST, NEVERTHELESS, for the same purposes and upon the same terms, trusts and conditions and subject to and with the same provisions and covenants as are set forth in the Original Indenture, as amended or modified by said First, Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth, Thirteenth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, Eighteenth, Nineteenth, Twentieth, Twenty-first, Twenty-second, Twenty-third, Twenty-fourth, Twenty-fifth, Twenty-sixth, Twenty-seventh, Twenty-eighth, Twenty-ninth, Thirtieth, Thirty-first, Thirty-second, Thirty-third, Thirty-fourth, Thirty-fifth, Thirty-sixth, Thirty-seventh, Thirty-eighth, Thirty-ninth, Fortieth, Forty-first, Forty-second, Forty-third, Forty-fourth, Forty-fifth and Forty-sixth Supplemental Indentures and this Instrument of Further Assurance.

All terms contained in this Instrument of Further Assurance shall, for all purposes hereof, have the meanings given to such terms in Article I of the Original Indenture, as amended by Article IV of the Second Supplemental Indenture.

This Instrument of Further Assurance may be executed in any number of originals, such originals together constitute but one and the same instrument.  Any such original, as recorded or filed in any county or jurisdiction, may omit (a) such portions of Exhibit A hereto as shall contain data as to the recording or filing of the Indenture in other counties or jurisdictions and (b) such portions of Exhibit B hereto as shall describe or refer to properties located in other counties or jurisdictions.

This Instrument of Further Assurance supplements the Indenture.  As supplemented by this Instrument of Further Assurance, the Indenture is hereby confirmed, and the Indenture and this Instrument of Further Assurance shall together constitute but one and the same instrument.

5

 


 


 

 

 

 

IN WITNESS WHEREOF, Idaho Power Company caused its corporate name to be hereunto affixed and this instrument to be signed and sealed by its President or a Vice President and its corporate seal to be attested by its Secretary or an Assistant Secretary for and on its behalf, on the date hereinafter acknowledged, as of the day and year first above written.

IDAHO POWER COMPANY

 

 

By

/s/ Darrel T. Anderson

Darrel T. Anderson

Executive Vice President – Administrative

Services and Chief Financial Officer

 

Attest:

 

 

/s/ Patrick A. Harrington

Patrick A. Harrington

Secretary

 

Executed, sealed and delivered by

 

IDAHO POWER COMPANY

 

in the presence of:

 

/s/ Barbara L. Smith

 

 

/s/ Colette Shepard

 

6

 


 


 

 

 

 

 

STATE OF IDAHO

)

 

)ss.:

COUNTY OF ADA

)

 

On the 3 rd day of August, in the year 2010, before me personally came DARREL T. ANDERSON, to me known, who being by me duly sworn did depose and say that he is the  Executive Vice President – Administrative Services and Chief Financial Officer of Idaho Power Company, that he knows the seal of said corporation; that the seal affixed to said instrument is such corporate seal; that it was so affixed by order of the Board of Directors of said corporation, and that he signed his name thereto by like order; the said DARREL T. ANDERSON, having personally appeared and known to me to be the Executive Vice President – Administrative Services and Chief Financial Officer of said corporation that executed the instrument, acknowledged to me that said corporation executed the same.

IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal the day and year in this certificate first above written.

/s/ Christa Bearry

Christa Bearry

Notary Public, State of Idaho

Commission expires February 4, 2015

 

 

7

 


 


 

 

 

 

 

STATE OF IDAHO

)

 

)ss.:

COUNTY OF ADA

)

 

DARREL T. ANDERSON, being first duly sworn, upon oath, deposes and says: that he is an officer, to wit, the Executive Vice President – Administrative Services and Chief Financial Officer of Idaho Power Company, a corporation, the mortgagor described in the foregoing instrument of further assurance, and makes this affidavit on behalf of said Idaho Power Company; that said instrument of further assurance is made in good faith without any design to hinder, delay or defraud creditors, to secure the indebtedness mentioned or provided for therein.

 

 

/s/ Darrel T. Anderson

Darrel T. Anderson

Executive Vice President –

Administrative Services and

Chief Financial Officer

 

 

Subscribed and sworn to before me
this 3 rd day of August, 2010.

 

 

/s/ Christa Bearry

Christa Bearry

Notary Public, State of Idaho

Commission expires February 4, 2015

 

 

 

 

 

8

 


 

EXHIBIT A

 

ADA COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/13/37

145

452

179955

First

9/27/39

151

294

192480

Second

11/29/43

168

130

223338

Third

2/15/47

184

190

259939

Fourth

5/20/48

195

132

275578

Fifth

12/15/49

213

95

294924

Sixth

11/17/51

232

188

325093

Seventh

1/29/57

290

39

406008

Eighth

9/9/57

297

48

416088

Ninth

1/20/58

301

270

422714

Tenth

4/23/58

305

91

428182

Eleventh

11/14/58

315

178

441059

Twelfth

6/22/59

327

218

457163

Thirteenth

12/29/60

345

596

494029

Fourteenth

12/12/61

356

1

517246

Fifteenth*

 

 

 

 

Sixteenth

5/23/66

406

550

639836

Seventeenth

11/8/66

410

169

651988

Eighteenth

11/8/72

133

0325

825934

Nineteenth

2/8/74

 

 

874355

Twentieth

8/20/74

 

 

896816

Twenty-first

11/22/74

 

 

906654

Twenty-second

1/4/77

 

 

7700349

Twenty-third

9/12/78

 

 

7848746

Twenty-fourth

9/28/79

 

 

7953673

Twenty-fifth

1/27/82

 

 

8203292

Twenty-sixth

1/27/82

 

 

8225752

Twenty-seventh

7/24/86

 

 

2641937

Twenty-eighth

12/5/89

 

 

8960984

Twenty-ninth

3/19/90

 

 

9013755

Thirtieth

3/8/91

 

 

9111766

Thirty-first

9/6/91

 

 

9149669

Thirty-second

5/7/91

 

 

9229142

Thirty-third

6/8/93

 

 

9342894

Thirty-fourth

4/28/94

 

 

94039158

Thirty-fifth

1/2/01

 

 

101001693

Thirty-sixth

12/7/01

 

 

101129446

Thirty-seventh

7/21/03

 

 

103119975

Thirty-eighth

12/18/03

 

 

103207770

Thirty-ninth

12/4/03

 

 

103200865

Fortieth

2/16/06

 

 

106024693

Forty-first

3/30/07

 

 

107045111

Forty-second

5/29/07

 

 

107075591

Forty-third

10/3/07

 

 

107137136

Forty-fourth

4/10/08

 

 

108041694

Forty-fifth

3/5/10

 

 

110019764

Forty-sixth

6/24/10

 

 

110058143

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

ADAMS COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/13/37

145

452

179955

First

8/2/44

14

106

28686

Second

8/2/44

14

113

28687

Third

2/17/47

14

315

30851

Fourth

5/20/48

14

453

31841

Fifth

12/1/49

14

561

33038

Sixth

11/5/51

15

159

34411

Seventh

1/30/57

16

209

37821

Eighth

8/16/57

16

281

38152

Ninth

1/2/58

16

345

38443

Tenth

4/23/58

16

387

38624

Eleventh

10/29/58

16

507

39099

Twelfth

6/4/59

17

5

39577

Thirteenth

12/12/60

17

293

40710

Fourteenth

11/24/61

17

493

41510

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

18

642

45288

Seventeenth

11/7/66

19

69

45687

Eighteenth

11/8/72

20M

352

50946

Nineteenth

2/7/74

21M

17

52328

Twentieth

8/28/74

21M

125

52964

Twenty-first

11/21/74

21M

162

53190

Twenty-second

12/29/76

22M

104

55482

Twenty-third

9/6/78

22M

459

57814

Twenty-fourth

9/28/79

 

 

59609

Twenty-fifth

1/20/82

 

 

63518

Twenty-sixth

6/17/82

 

 

64386

Twenty-seventh

7/24/86

 

 

72769

Twenty-eighth

12/5/89

 

 

77903

Twenty-ninth

3/19/90

 

 

78249

Thirtieth

3/8/91

 

 

79845

Thirty-first

9/6/91

 

 

80908

Thirty-second

5/7/92

 

 

81950

Thirty-third

5/28/93

 

 

84146

Thirty-fourth

4/27/94

 

 

85833

Thirty-fifth

1/8/01

 

 

99244

Thirty-sixth

12/5/01

 

 

100817

Thirty-seventh

7/17/03

 

 

104093

Thirty-eighth

10/31/03

 

 

104845

Thirty-ninth

12/3/03

 

 

105059

Fortieth

2/14/06

 

 

111081

Forty-first

3/30/07

 

 

114027

Forty-second

5/25/07

 

 

114470

Forty-third

10/2/07

 

 

115298

Forty-fourth

4/10/08

 

 

116305

Forty-fifth

3/5/10

 

 

119891

Forty-sixth

6/24/10

 

 

120427

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

BANNOCK COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/16/37

66

409

194156

First

9/30/39

68

404

204688

Second

11/29/43

73

618

228993

Third

2/15/47

79

129

251333

Fourth

5/20/48

82

342

259717

Fifth

12/1/49

85

555

269392

Sixth

11/3/51

95

21

284721

Seventh

1/29/57

111

453

320984

Eighth

8/19/57

113

197

325261

Ninth

1/2/58

130

Film

328431

Tenth

4/23/58

132

 

331643

Eleventh

11/3/58

137

 

337881

Twelfth

6/4/59

142

 

345027

Thirteenth

12/12/60

156

 

363612

Fourteenth

11/27/61

164

 

374689

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

205

 

427830

Seventeenth

11/11/66

209

 

433289

Eighteenth

11/14/72

254

 

501632

Nineteenth

2/8/74

265

 

518861

Twentieth

8/28/74

271

 

527175

Twenty-first

11/21/74

272

 

530074

Twenty-second

12/27/76

297

 

567790

Twenty-third

8/30/78

324

 

607405

Twenty-fourth

10/1/79

 

 

634163

Twenty-fifth

1/25/82

 

 

682014

Twenty-sixth

6/18/82

 

 

690009

Twenty-seventh

7/24/86

 

 

776737

Twenty-eighth

12/7/89

 

 

89015064

Twenty-ninth

3/19/90

 

 

90003432

Thirtieth

3/11/91

 

 

91002676

Thirty-first

9/9/91

 

 

91012082

Thirty-second

5/7/92

 

 

92006827

Thirty-third

6/1/93

 

 

93008014

Thirty-fourth

4/28/94

 

 

94007428

Thirty-fifth

1/9/01

 

 

20100323

Thirty-sixth

12/7/01

 

 

20124057

Thirty-seventh

7/21/03

 

 

20319209

Thirty-eighth

11/4/03

 

 

20329803

Thirty-ninth

12/5/03

 

 

20332266

Fortieth

2/16/06

 

 

20603337

Forty-first

4/20/07

 

 

20707445

Forty-second

5/30/07

 

 

20712606

Forty-third

10/5/07

 

 

B90020723930

Forty-fourth

4/14/08

 

 

20808007

Forty-fifth

3/10/10

 

 

21003847

Forty-sixth

6/28/10

 

 

21010671

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

BEAR LAKE COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

6/9/72

 

 

98524

First

6/9/72

 

 

98525

Second

6/9/72

 

 

98526

Third

6/9/72

 

 

98527

Fourth

6/9/72

 

 

98528

Fifth

6/9/72

 

 

98529

Sixth

6/9/72

 

 

98530

Seventh

6/9/72

 

 

98531

Eighth

6/9/72

 

 

98532

Ninth

6/9/72

 

 

98533

Tenth

6/9/72

 

 

98534

Eleventh

6/9/72

 

 

98535

Twelfth

6/9/72

 

 

98536

Thirteenth

6/9/72

 

 

98537

Fourteenth

6/9/72

 

 

98538

Fifteenth*

 

 

 

 

Sixteenth

6/9/72

 

 

98539

Seventeenth

6/9/72

 

 

98540

Eighteenth

11/4/72

 

 

99590

Nineteenth

1/31/74

 

 

102407

Twentieth

8/20/74

 

 

103553

Twenty-first

11/14/74

 

 

104075

Twenty-second

12/16/76

 

 

110213

Twenty-third

8/25/78

 

 

116192

Twenty-fourth

9/24/79

 

 

119564

Twenty-fifth

1/14/82

 

 

127183

Twenty-sixth

6/18/82

 

 

128524

Twenty-seventh

7/25/86

 

 

141225

Twenty-eighth

12/5/89

 

 

149466

Twenty-ninth

3/19/90

 

 

149990

Thirtieth

3/11/91

 

 

152095

Thirty-first

9/6/91

 

 

153070

Thirty-second

5/8/92

 

 

154396

Thirty-third

6/3/93

 

 

156696

Thirty-fourth

4/28/94

 

 

158906

Thirty-fifth

1/8/01

 

 

177419

Thirty-sixth

12/6/01

 

 

180172

Thirty-seventh

7/18/03

 

 

185654

Thirty-eighth

11/3/03

 

 

186823

Thirty-ninth

12/4/03

 

 

187101

Fortieth

2/15/06

 

 

193860

Forty-first

3/30/07

 

 

197780

Forty-second

5/29/07

 

 

198344

Forty-third

10/13/07

 

 

199580

Forty-fourth

4/11/08

 

 

201119

Forty-fifth

3/8/10

 

 

206997

Forty-sixth

6/25/10

 

 

207757

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

BINGHAM COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

2/16/37

68

470

14456

First

10/5/39

69

541

22879

Second

11/30/43

72

323

40920

Third

2/18/47

74

453

558

Fourth

5/24/48

76

478

6627

Fifth

12/2/49

78

524

13040

Sixth

11/5/51

81

641

23168

Seventh

1/30/57

97

1

51541

Eighth

8/16/57

98

112

54809

Ninth

1/2/58

100

31

57200

Tenth

4/23/58

101

17

59361

Eleventh

10/29/58

102

144

62964

Twelfth

6/4/59

104

178

67589

Thirteenth

12/13/60

109

34

78280

Fourteenth

12/7/61

112

85

85912

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

4

 

123541

Seventeenth

11/7/66

5

 

127113

Eighteenth

11/6/72

13

 

175071

Nineteenth

2/1/74

15

 

188088

Twentieth

8/20/74

16

 

194028

Twenty-first

11/14/74

17

 

195999

Twenty-second

12/16/76

20

 

219497

Twenty-third

8/25/78

42

 

242949

Twenty-fourth

9/26/79

 

 

258091

Twenty-fifth

1/14/82

 

 

288256

Twenty-sixth

6/17/82

 

 

294255

Twenty-seventh

7/25/86

 

 

350832

Twenty-eighth

12/5/89

 

 

385665

Twenty-ninth

3/19/90

 

 

388162

Thirtieth

3/11/91

 

 

396677

Thirty-first

9/6/91

 

 

401121

Thirty-second

5/8/92

 

 

406630

Thirty-third

5/27/93

 

 

417965

Thirty-fourth

4/28/94

 

 

425066

Thirty-fifth

1/12/01

 

 

496470

Thirty-sixth

12/17/01

 

 

507110

Thirty-seventh

7/18/03

 

 

529380

Thirty-eighth

11/3/03

 

 

534088

Thirty-ninth

12/4/03

 

 

535187

Fortieth

2/15/06

 

 

563940

Forty-first

3/30/07

 

 

579013

Forty-second

5/29/07

 

 

581221

Forty-third

10/2/07

 

 

586326

Forty-fourth

4/14/08

 

 

593115

Forty-fifth

3/8/10

 

 

615975

Forty-sixth

6/25/10

 

 

619180

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

BLAINE COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/18/37

114

547

76202

First

9/30/39

142

161

79812

Second

11/30/43

142

533

86321

Third

2/17/47

155

143

91197

Fourth

5/20/48

155

425

93502

Fifth

12/1/49

161

90

96502

Sixth

11/3/51

161

523

99989

Seventh

1/29/57

172

9

108899

Eighth

8/16/57

168

525

109831

Ninth

1/2/58

172

58

110389

Tenth

4/23/58

172

78

110702

Eleventh

10/29/58

172

96

111674

Twelfth

6/4/59

172

120

112494

Thirteenth

12/12/60

172

176

114872

Fourteenth

11/24/61

172

203

116344

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

181

165

124697

Seventeenth

11/7/66

186

5

125943

Eighteenth

11/6/72

 

 

146315

Nineteenth

1/31/74

 

 

152939

Twentieth

8/20/74

 

 

155808

Twenty-first

11/14/74

 

 

157008

Twenty-second

12/17/76

 

 

170216

Twenty-third

8/25/78

 

 

185999

Twenty-fourth

9/21/79

 

 

197051

Twenty-fifth

1/14/82

 

 

222923

Twenty-sixth

6/17/82

 

 

227171

Twenty-seventh

7/24/86

 

 

275013

Twenty-eighth

12/5/89

 

 

313670

Twenty-ninth

3/19/90

 

 

317544

Thirtieth

3/8/91

 

 

328258

Thirty-first

9/6/91

 

 

333446

Thirty-second

5/7/92

 

 

340598

Thirty-third

5/28/93

 

 

353125

Thirty-fourth

4/27/94

 

 

355159

Thirty-fifth

1/23/01

 

 

447137

Thirty-sixth

12/7/01

 

 

458854

Thirty-seventh

7/17/03

 

 

487680

Thirty-eighth

11/3/03

 

 

494469

Thirty-ninth

12/3/03

 

 

496029

Fortieth

2/14/06

 

 

532090

Forty-first

3/30/07

 

 

546180

Forty-second

5/25/07

 

 

548029

Forty-third

10/2/07

 

 

552038

Forty-fourth

4/10/08

 

 

557252

Forty-fifth

3/8/10

 

 

575673

Forty-sixth

6/24/10

 

 

578539

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

BOISE COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/16/37

24

290

44388

First

9/30/39

24

447

46968

Second

11/29/43

25

3

50956

Third

2/15/47

25

129

53487

Fourth

5/20/48

25

209

54730

Fifth

12/1/49

25

284

56433

Sixth

11/3/51

25

379

58258

Seventh

1/29/57

26

14-A

62857

Eighth

8/16/57

26

19

63436

Ninth

1/2/58

26

50-A

63663

Tenth

4/23/58

26

56-A

63798

Eleventh

11/3/58

26

75-A

64441

Twelfth

6/4/59

26

100A

64767

Thirteenth

12/10/60

26

146A

66209

Fourteenth

11/24/61

26

174A

67082

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

26

442A

70950

Seventeenth

11/7/66

26

496A

71509

Eighteenth

11/24/72

28

28

78594

Nineteenth

2/19/74

29

13

80270

Twentieth

8/20/74

29

62

81016

Twenty-first

11/14/74

29

84

81502

Twenty-second

12/17/76

31

13

85480

Twenty-third

8/30/78

33

47

89996

Twenty-fourth

9/28/79

 

 

93188

Twenty-fifth

1/13/82

 

 

103278

Twenty-sixth

6/16/82

 

 

105044

Twenty-seventh

7/24/86

 

 

121091

Twenty-eighth

12/5/89

 

 

135177

Twenty-ninth

3/19/90

 

 

135923

Thirtieth

3/11/91

 

 

139151

Thirty-first

9/9/91

 

 

140995

Thirty-second

5/7/92

 

 

143430

Thirty-third

5/27/93

 

 

147404

Thirty-fourth

4/28/94

 

 

151435

Thirty-fifth

1/8/01

 

 

179701

Thirty-sixth

12/11/01

 

 

183845

Thirty-seventh

7/31/03

 

 

191975

Thirty-eighth

11/10/03

 

 

193907

Thirty-ninth

12/5/03

 

 

194306

Fortieth

2/17/06

 

 

206900

Forty-first

4/12/07

 

 

213184

Forty-second

6/7/07

 

 

214158

Forty-third

10/17/07

 

 

216534

Forty-fourth

4/17/08

 

 

218712

Forty-fifth

3/22/10

 

 

227022

Forty-sixth

6/30/10

 

 

228214

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

BONNEVILLE COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/20/42

46

One

153129

First

11/20/42

46

75

153130

Second

11/30/43

46

191

158088

Third

2/15/47

53

27

178282

Fourth

5/21/48

56

231

186264

Fifth

12/1/49

62

469

195639

Sixth

1/3/51

83

11

211422

Seventh

1/30/57

114

149

250681

Eighth

8/16/57

118

109

255162

Ninth

1/2/58

120

579

258702

Tenth

4/23/58

123

69

261974

Eleventh

10/30/58

127

343

267511

Twelfth

6/12/59

132

477

274946

Thirteenth

12/12/60

143

491

292369

Fourteenth

11/28/61

149

529

303329

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

 

 

360856

Seventeenth

11/7/66

 

 

366311

Eighteenth

11/20/72

 

 

440196

Nineteenth

2/12/74

 

 

458371

Twentieth

8/30/74

 

 

467411

Twenty-first

12/2/74

 

 

471109

Twenty-second

12/28/76

 

 

509183

Twenty-third

9/6/78

 

 

548976

Twenty-fourth

10/1/79

 

 

573295

Twenty-fifth

1/22/82

 

 

618766

Twenty-sixth

6/17/82

 

 

625821

Twenty-seventh

7/25/86

 

 

710110

Twenty-eighth

12/5/89

 

 

777905

Twenty-ninth

3/19/90

 

 

783215

Thirtieth

3/8/91

 

 

802442

Thirty-first

9/6/91

 

 

813388

Thirty-second

5/7/92

 

 

827415

Thirty-third

5/27/93

 

 

851574

Thirty-fourth

4/28/94

 

 

876070

Thirty-fifth

1/8/01

 

 

1038287

Thirty-sixth

12/6/01

 

 

1064608

Thirty-seventh

7/18/03

 

 

1121154

Thirty-eighth

11/3/03

 

 

1134002

Thirty-ninth

12/4/03

 

 

1137143

Fortieth

2/15/06

 

 

1214906

Forty-first

3/30/07

 

 

1257768

Forty-second

5/29/07

 

 

1264699

Forty-third

10/3/07

 

 

1278999

Forty-fourth

4/11/08

 

 

1296261

Forty-fifth

3/9/10

 

 

1357952

Forty-sixth

6/25/10

 

 

1366850

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

BUTTE COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

6/9/72

 

 

2034

First

6/9/72

 

 

2035

Second

6/9/72

 

 

2036

Third

6/9/72

 

 

2037

Fourth

6/9/72

 

 

2038

Fifth

6/9/72

 

 

2039

Sixth

6/9/72

 

 

2040

Seventh

6/9/72

 

 

2041

Eighth

6/9/72

 

 

2042

Ninth

6/9/72

 

 

2043

Tenth

6/9/72

 

 

2044

Eleventh

6/9/72

 

 

2045

Twelfth

6/9/72

 

 

2046

Thirteenth

6/9/72

 

 

2047

Fourteenth

6/9/72

 

 

2048

Fifteenth*

 

 

 

 

Sixteenth

6/9/72

 

 

2049

Seventeenth

6/9/72

 

 

2050

Eighteenth

11/6/72

 

 

M2367

Nineteenth

1/31/74

 

 

M3132

Twentieth

8/20/74

 

 

M3587

Twenty-first

11/14/74

 

 

M3764

Twenty-second

12/21/76

 

 

M5631

Twenty-third

8/28/78

 

 

M7015

Twenty-fourth

9/24/79

 

 

8452

Twenty-fifth

1/13/82

 

 

11087

Twenty-sixth

6/17/82

 

 

11417

Twenty-seventh

7/25/86

 

 

18272

Twenty-eighth

12/6/89

 

 

22903

Twenty-ninth

3/20/90

 

 

23345

Thirtieth

3/11/91

 

 

24623

Thirty-first

9/9/91

 

 

25222

Thirty-second

5/11/92

 

 

25871

Thirty-third

5/27/93

 

 

26919

Thirty-fourth

4/29/94

 

 

027925

Thirty-fifth

1/8/01

 

 

0036559

Thirty-sixth

12/6/01

 

 

0037654

Thirty-seventh

7/18/03

 

 

076233

Thirty-eighth

11/3/03

 

 

0040032

Thirty-ninth

12/4/03

 

 

0040121

Fortieth

2/16/06

 

 

0042809

Forty-first

3/30/07

 

 

44311

Forty-second

5/29/07

 

 

44589

Forty-third

10/3/07

 

 

45063

Forty-fourth

4/11/08

 

 

45552

Forty-fifth

3/9/10

 

 

47561

Forty-sixth

6/25/10

 

 

47823

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

CAMAS COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

8/2/44

11

409

25317

First

8/2/44

11

501

25318

Second

8/2/44

11

507

25319

Third

2/15/47

11

611

26975

Fourth

5/20/48

12

32

27713

Fifth

12/1/49

12

160-A

28654

Sixth

11/5/51

12

276A

29799

Seventh

1/29/57

13

54-A

32931

Eighth

8/16/57

13

90

33183

Ninth

1/2/58

13

118

33409

Tenth

4/23/58

13

146-A

33517

Eleventh

10/30/58

13

177-A

33819

Twelfth

6-4-59

13

194

34052

Thirteenth

12/12/60

13

316

34865

Fourteenth

11/24/61

13

400

35329

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

14

218A

37939

Seventeenth

11/5/66

14

256A

38131

Eighteenth

11/6/72

15

272

41323

Nineteenth

1/31/74

15

420

41953

Twentieth

8/20/74

15

511

42216

Twenty-first

11/14/74

15

568

42364

Twenty-second

12/16/76

15

1044

43842

Twenty-third

8/25/78

16

371

44926

Twenty-fourth

9/21/79

 

 

45609

Twenty-fifth

1/12/82

 

 

47492

Twenty-sixth

6/16/82

 

 

47865

Twenty-seventh

7/24/86

 

 

62340

Twenty-eighth

12/5/89

 

 

65406

Twenty-ninth

3/19/90

 

 

65680

Thirtieth

3/8/91

 

 

66497

Thirty-first

9/9/91

 

 

66872

Thirty-second

5/7/92

 

 

67256

Thirty-third

5/27/93

 

 

67861

Thirty-fourth

4/28/94

 

 

68476

Thirty-fifth

1/8/01

 

 

074302

Thirty-sixth

12/6/01

 

 

074901

Thirty-seventh

7/17/03

 

 

76233

Thirty-eighth

10/31/03

 

 

076565

Thirty-ninth

12/3/03

 

 

076666

Fortieth

2/14/06

 

 

79401

Forty-first

3/30/07

 

 

80543

Forty-second

5/25/07

 

 

80685

Forty-third

10/2/07

 

 

2007-080992

Forty-fourth

4/10/08

 

 

2008-081401

Forty-fifth

3/5/10

 

 

2010-082865

Forty-sixth

6/24/10

 

 

2010-083118

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

CANYON COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/13/37

119

300

229246

First

10/4/39

124

42

245162

Second

12/1/43

133

569

284468

Third

2/21/47

143

369

329872

Fourth

6/2/48

156

348

338699

Fifth

12/16/49

169

311

356961

Sixth

11/19/57

185

93

382851

Seventh

2/9/57

216

546

441184

Eighth

9/9/57

219

673

447728

Ninth

1/20/58

221

434

451879

Tenth

5/8/58

223

49

456616

Eleventh

11/17/58

225

420

463327

Twelfth

6/22/59

228

609

473892

Thirteenth

12/29/60

234

599

495825

Fourteenth

12/12/61

239

246

510102

Fifteenth*

 

 

 

 

Sixteenth

5/23/66

263

469

581827

Seventeenth

11/18/66

265

517

587987

Eighteenth

11/8/72

 

 

694618

Nineteenth

2/21/74

 

 

723454

Twentieth

8/28/74

 

 

735479

Twenty-first

11/14/74

 

 

738475

Twenty-second

12/27/76

 

 

789901

Twenty-third

8/30/78

 

 

840494

Twenty-fourth

11/5/79

 

 

877687

Twenty-fifth

1/20/82

 

 

938192

Twenty-sixth

6/17/82

 

 

949927

Twenty-seventh

7/29/86

 

 

8618299

Twenty-eighth

12/5/89

 

 

8922218

Twenty-ninth

3/19/90

 

 

9004834

Thirtieth

3/12/91

 

 

9104435

Thirty-first

9/6/91

 

 

9117685

Thirty-second

5/7/92

 

 

9209941

Thirty-third

6/2/93

 

 

9311965

Thirty-fourth

4/27/94

 

 

9412427

Thirty-fifth

1/8/01

 

 

200100758

Thirty-sixth

12/10/01

 

 

200151496

Thirty-seventh

7/21/03

 

 

200344668

Thirty-eighth

11/20/03

 

 

200371861

Thirty-ninth

12/17/03

 

 

200377070

Fortieth

3/10/06

 

 

200617238

Forty-first

3/30/07

 

 

2007022429

Forty-second

5/25/07

 

 

2007036443

Forty-third

10/2/07

 

 

2007066198

Forty-fourth

4/18/08

 

 

2008021170

Forty-fifth

3/10/10

 

 

2010010989

Forty-sixth

6/24/10

 

 

2010029116

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

CARIBOU COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

6/9/72

 

 

73925

First

6/9/72

 

 

73927

Second

6/9/72

 

 

73929

Third

6/9/72

 

 

73931

Fourth

6/9/72

 

 

73933

Fifth

6/9/72

 

 

73935

Sixth

6/9/72

 

 

73937

Seventh

6/9/72

 

 

73939

Eighth

6/9/72

 

 

73941

Ninth

6/9/72

 

 

73943

Tenth

6/9/72

 

 

73945

Eleventh

6/9/72

 

 

73947

Twelfth

6/9/72

 

 

73949

Thirteenth

6/9/72

 

 

73951

Fourteenth

6/9/72

 

 

73953

Fifteenth*

 

 

 

 

Sixteenth

6/9/72

 

 

73955

Seventeenth

6/9/72

 

 

73957

Eighteenth

11/6/72

 

 

75213

Nineteenth

1/31/74

 

 

78942

Twentieth

8/20/74

 

 

80579

Twenty-first

11/14/74

 

 

81276

Twenty-second

12/16/76

 

 

89435

Twenty-third

8/25/78

 

 

97508

Twenty-fourth

9/24/79

 

 

102039

Twenty-fifth

1/19/82

 

 

111027

Twenty-sixth

6/17/82

 

 

112724

Twenty-seventh

7/25/86

 

 

128841

Twenty-eighth

12/5/89

 

 

137920

Twenty-ninth

3/19/90

 

 

138561

Thirtieth

3/11/90

 

 

140835

Thirty-first

9/6/91

 

 

142037

Thirty-second

5/8/92

 

 

143504

Thirty-third

5/27/93

 

 

145649

Thirty-fourth

4/28/94

 

 

147828

Thirty-fifth

1/8/01

 

 

162794

Thirty-sixth

12/6/01

 

 

164876

Thirty-seventh

7/21/10

 

 

169079

Thirty-eighth

11/3/03

 

 

169800

Thirty-ninth

12/4/03

 

 

169968

Fortieth

2/15/06

 

 

175120

Forty-first

3/30/07

 

 

177834

Forty-second

5/29/07

 

 

178300

Forty-third

10/3/07

 

 

179226

Forty-fourth

4/11/08

 

 

180412

Forty-fifth

3/8/10

 

 

184830

Forty-sixth

6/25/10

 

 

185411

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

CASSIA COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/16/37

33

500

125547

First

9/30/39

34

81

132605

Second

12/7/43

35

618

146616

Third

2/19/47

37

513

158244

Fourth

6/3/48

39

1-7

162741

Fifth

12/1/49

40

423

167572

Sixth

11/5/51

41

595

173871

Seventh

1/30/57

47

151

192377

Eighth

8/27/57

48

149

194467

Ninth

1/3/58

47

449

195722

Tenth

4/23/58

47

569

196938

Eleventh

10/30/58

50

99

199082

Twelfth

6/5/59

50

311

201994

Thirteenth

12/12/60

53

461

209173

Fourteenth

11/24/61

Film #9

 

4181

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

 

 

29725

Seventeenth

11/9/66

 

 

32244

Eighteenth

11/6/72

 

 

66091

Nineteenth

1/31/74

 

 

74634

Twentieth

8/20/74

 

 

78363

Twenty-first

11/14/74

 

 

79589

Twenty-second

12/16/76

 

 

94970

Twenty-third

8/25/78

 

 

110502

Twenty-fourth

9/21/79

 

 

120111

Twenty-fifth

1/12/82

 

 

140560

Twenty-sixth

6/16/82

 

 

144189

Twenty-seventh

7/24/86

 

 

180592

Twenty-eighth

12/5/89

 

 

205120

Twenty-ninth

3/19/90

 

 

206628

Thirtieth

3/8/90

 

 

212313

Thirty-first

9/6/91

 

 

215126

Thirty-second

5/7/92

 

 

218888

Thirty-third

5/27/93

 

 

224794

Thirty-fourth

4/28/94

 

 

230516

Thirty-fifth

1/8/01

 

 

272837

Thirty-sixth

12/5/01

 

 

278539

Thirty-seventh

8/5/03

 

 

290402

Thirty-eighth

10/31/03

 

 

292326

Thirty-ninth

12/3/03

 

 

292829

Fortieth

2/14/06

 

 

306708

Forty-first

3/30/07

 

 

314814

Forty-second

5/25/07

 

 

316071

Forty-third

10/2/07

 

 

2007-318558

Forty-fourth

4/10/08

 

 

2008-002258

Forty-fifth

3/5/10

 

 

2010-001103

Forty-sixth

6/24/10

 

 

2010-003059

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

CLARK COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

11/20/42

4

415

14689

First

11/20/42

4

488

14690

Second

12/1/43

4

531

15109

Third

2/17/47

5

689

16588

Fourth

5/21/48

6

316

17158

Fifth

12/2/49

6

449

17963

Sixth

11/5/51

6

575

18818

Seventh

1/30/57

7

857

21118

Eighth

8/19/57

7

885

21457

Ninth

1/2/58

7

916

21659

Tenth

4/25/58

8

31

21773

Eleventh

10/30/58

8

 

22024

Twelfth

6/4/59

8

113

22293

Thirteenth

12/12/60

8

206

22932

Fourteenth

12/11/61

8

297

23318

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

9

120

25526

Seventeenth

11/7/66

9

162

25771

Eighteenth

1/6/72

 

 

28977

Nineteenth

1/31/74

 

 

29646

Twentieth

8/21/74

 

 

29929

Twenty-first

11/15/74

 

 

30101

Twenty-second

12/16/76

 

 

31583

Twenty-third

8/25/78

 

 

33008

Twenty-fourth

9/24/79

 

 

34151

Twenty-fifth

1/79/82

 

 

36526

Twenty-sixth

5/27/93

 

 

44642

Twenty-seventh

6/17/82

 

 

36827

Twenty-eighth

12/5/89

 

 

42625

Twenty-ninth

3/19/90

 

 

42798

Thirtieth

3/11/91

1

62,68,95,294

 

Thirty-first

9/9/91

1

62,67,293

 

Thirty-second

5/8/92

 

 

44210

Thirty-third

5/27/93

 

 

44642

Thirty-fourth

4/28/94

 

 

45096

Thirty-fifth

1/10/01

 

 

048977

Thirty-sixth

12/12/01

 

 

049397

Thirty-seventh

7/21/03

 

 

050113

Thirty-eighth

11/3/03

 

 

050276

Thirty-ninth

12/4/03

 

 

050367

Fortieth

2/15/06

 

 

51310

Forty-first

3/30/07

 

 

51887

Forty-second

5/30/07

 

 

51911

Forty-third

10/9/07

 

 

51999

Forty-fourth

4/11/08

 

 

52399

Forty-fifth

3/8/10

 

 

53522

Forty-sixth

6/28/10

 

 

53659

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

ELMORE COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/18/37

50

180

58218

First

9/30/39

50

362

61517

Second

11/29/43

50

631

68525

Third

2/15/47

51

304

 

Fourth

5/20/48

51

567

76499

Fifth

12/1/49

52

222, A-F

79343

Sixth

11/3/51

53

1

82889

Seventh

1/29/57

56

325

94143

Eighth

8/19/57

55

444

95294

Ninth

1/2/58

56

433

96062

Tenth

4/25/58

56

457

96884

Eleventh

10/29/58

56

515

98331

Twelfth

6/3/59

58

47

100478

Thirteenth

12/12/60

59

237

106907

Fourteenth

11/20/61

61

81

111007

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

64

11

128796

Seventeenth

11/8/66

64

100

130833

Eighteenth

11/6/72

66

9

151293

Nineteenth

1/31/74

66

56

156728

Twentieth

8/20/74

66

102

159423

Twenty-first

11/14/74

66

114

160519

Twenty-second

12/16/76

 

 

171483

Twenty-third

8/25/78

 

 

183026

Twenty-fourth

9/21/79

 

 

190623

Twenty-fifth

1/12/82

 

 

206578

Twenty-sixth

6/16/82

 

 

209057

Twenty-seventh

7/24/86

 

 

235962

Twenty-eighth

12/5/89

 

 

256519

Twenty-ninth

3/19/90

 

 

257969

Thirtieth

3/8/91

 

 

262965

Thirty-first

9/6/91

 

 

265312

Thirty-second

5/7/92

 

 

268480

Thirty-third

5/27/93

 

 

274330

Thirty-fourth

4/28/94

 

 

280187

Thirty-fifth

1/8/01

 

 

326252

Thirty-sixth

12/18/01

 

 

333311

Thirty-seventh

7/18/03

 

 

348505

Thirty-eighth

12/11/03

 

 

352680

Thirty-ninth

12/3/03

 

 

352510

Fortieth

2/14/06

 

 

373462

Forty-first

3/30/07

 

 

385963

Forty-second

5/25/07

 

 

387777

Forty-third

10/2/07

 

 

391661

Forty-fourth

4/10/08

 

 

397146

Forty-fifth

3/5/10

 

 

412873

Forty-sixth

6/24/10

 

 

415054

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

GEM COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/16/37

20

46

38114

First

10/5/39

20

547

41792

Second

12/4/43

22

89

49655

Third

2/25/47

23

203

56587

Fourth

6/2/48

24

95

59201

Fifth

12/15/49

24

626

61846

Sixth

11/17/51

26

111

65400

Seventh

1/29/57

28

525

74486

Eighth

8/16/57

29

35

75444

Ninth

1/3/58

29

125

76066

Tenth

5/7/58

29

215

76727

Eleventh

11/14/58

29

387

77567

Twelfth

6/8/59

29

637

78650

Thirteenth

12/19/60

30

425

81367

Fourteenth

12/9/61

31

93

83027

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

 

 

91957

Seventeenth

11/18/66

 

 

92855

Eighteenth

11/7/72

 

 

106252

Nineteenth

1/31/74

 

 

109855

Twentieth

8/20/74

 

 

111484

Twenty-first

11/14/74

 

 

112191

Twenty-second

12/16/76

 

 

118516

Twenty-third

8/25/78

 

 

125584

Twenty-fourth

9/28/79

 

 

130301

Twenty-fifth

1/18/82

 

 

138907

Twenty-sixth

6/16/82

 

 

140481

Twenty-seventh

7/24/86

 

 

154887

Twenty-eighth

12/5/89

 

 

165026

Twenty-ninth

3/19/90

 

 

165711

Thirtieth

3/8/91

 

 

168605

Thirty-first

9/6/91

 

 

170142

Thirty-second

5/7/92

 

 

172262

Thirty-third

5/27/93

 

 

176140

Thirty-fourth

4/28/94

 

 

180144

Thirty-fifth

1/8/01

 

 

214590

Thirty-sixth

12/5/01

 

 

219810

Thirty-seventh

7/18/03

 

 

230429

Thirty-eighth

10/31/03

 

 

232728

Thirty-ninth

12/3/03

 

 

233306

Fortieth

2/14/06

 

 

249485

Forty-first

3/30/07

 

 

258571

Forty-second

5/31/07

 

 

259915

Forty-third

10/2/07

 

 

262345

Forty-fourth

4/10/08

 

 

265633

Forty-fifth

3/5/10

 

 

276284

Forty-sixth

6/24/10

 

 

277818

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

GOODING COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/16/37

19

82

68760

First

9/30/39

19

418

74636

Second

11/29/43

20

526

88661

Third

2/15/47

22

191

99713

Fourth

5/21/48

25

204

105725

Fifth

12/1/49

22

714

110322

Sixth

11/3/51

28

11

116669

Seventh

1/29/57

30

505

131785

Eighth

8/16/57

32

1

133044

Ninth

1/2/58

32

55

133932

Tenth

4/23/58

32

125

134840

Eleventh

10/29/58

32

229

135917

Twelfth

6/4/59

32

389

137874

Thirteenth

12/12/60

35

113

142435

Fourteenth

11/24/61

35

131

2830

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

 

 

18410

Seventeenth

11/7/66

 

 

19860

Eighteenth

11/8/72

 

 

042645

Nineteenth

1/31/74

 

 

48586

Twentieth

8/20/74

 

 

051350

Twenty-first

11/20/74

 

 

052452

Twenty-second

12/16/76

 

 

62353

Twenty-third

8/25/78

 

 

72074

Twenty-fourth

9/21/79

 

 

78946

Twenty-fifth

1/20/82

 

 

93156

Twenty-sixth

6/17/82

 

 

95594

Twenty-seventh

7/24/86

 

 

122518

Twenty-eighth

12/5/89

 

 

138944

Twenty-ninth

3/19/90

 

 

140183

Thirtieth

3/8/91

 

 

143967

Thirty-first

9/6/91

 

 

146044

Thirty-second

5/7/92

 

 

148616

Thirty-third

5/27/93

 

 

152827

Thirty-fourth

4/28/94

 

 

156718

Thirty-fifth

1/8/01

 

 

188907

Thirty-sixth

12/5/01

 

 

193107

Thirty-seventh

7/18/03

 

 

201764

Thirty-eighth

10/31/03

 

 

203377

Thirty-ninth

12/3/03

 

 

203823

Fortieth

2/17/06

 

 

215090

Forty-first

3/30/07

 

 

220944

Forty-second

5/25/07

 

 

221788

Forty-third

10/2/07

 

 

223655

Forty-fourth

4/10/08

 

 

226006

Forty-fifth

3/8/10

 

 

233630

Forty-sixth

6/24/10

 

 

234777

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

IDAHO COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

6/14/45

52

1

148395

First

6/14/45

52

92

148396

Second

6/14/45

52

99

148397

Third

2/17/47

52

567

155192

Fourth

5/21/48

53

589

159645

Fifth

12/2/49

55

75

165309

Sixth

11/5/51

56

809

171737

Seventh

1/30/57

60

649

190185

Eighth

8/19/57

60

212

191900

Ninth

1/3/58

60

765

193192

Tenth

4/23/58

60

817

194056

Eleventh

10/30/58

61

610

196031

Twelfth

6/4/59

61

690

198078

Thirteenth

12/12/60

63

113

203886

Fourteenth

12/11/61

62

548

207396

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

69

421

223365

Seventeenth

11/18/66

70

165

225251

Eighteenth

11/9/72

 

 

247381

Nineteenth

1/31/74

 

 

252713

Twentieth

8/20/74

 

 

255084

Twenty-first

11/14/74

 

 

256308

Twenty-second

12/16/76

 

 

266161

Twenty-third

8/25/78

 

 

274992

Twenty-fourth

9/21/79

 

 

281324

Twenty-fifth

1/13/82

 

 

396250

Twenty-sixth

6/17/82

 

 

298280

Twenty-seventh

7/25/86

 

 

328284

Twenty-eighth

12/5/89

 

 

351065

Twenty-ninth

3/19/90

 

 

352364

Thirtieth

3/8/91

 

 

357533

Thirty-first

9/6/91

 

 

360121

Thirty-second

5/7/92

 

 

363279

Thirty-third

5/27/93

 

 

368831

Thirty-fourth

4/28/94

 

 

373949

Thirty-fifth

1/8/01

 

 

0414994

Thirty-sixth

12/6/01

 

 

0414994

Thirty-seventh

7/21/03

 

 

430257

Thirty-eighth

11/3/03

 

 

0432399

Thirty-ninth

12/4/03

 

 

0432938

Fortieth

2/15/06

 

 

446684

Forty-first

3/30/07

 

 

454282

Forty-second

5/29/07

 

 

455226

Forty-third

10/3/07

 

 

457584

Forty-fourth

4/11/08

 

 

460438

Forty-fifth

3/8/10

 

 

471269

Forty-sixth

6/25/10

 

 

472869

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

JEFFERSON COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

11/20/42

135

159

70643

First

11/20/42

135

246

70644

Second

12/1/43

135

313

73017

Third

2/17/47

140

207

82505

Fourth

5/20/48

140

493

85887

Fifth

12/22/49

150

182

90230

Sixth

11/3/51

150

601

95219

Seventh

1/30/57

164

371

110915

Eighth

8/16/57

163

131

112608

Ninth

1/2/58

169

45

113956

Tenth

4/25/58

169

155

115115

Eleventh

11/5/58

169

361

116851

Twelfth

6/9/59

169

611

119131

Thirteenth

12/14/60

172

433

123900

Fourteenth

11/27/61

176

127

127023

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

187

79

141454

Seventeenth

11/7/66

 

 

142744

Eighteenth

11/6/72

 

 

164015

Nineteenth

1/31/74

 

 

168986

Twentieth

8/20/74

 

 

171814

Twenty-first

11/14/74

 

 

172779

Twenty-second

12/16/76

 

 

183321

Twenty-third

8/25/78

 

 

194019

Twenty-fourth

9/24/79

 

 

200345

Twenty-fifth

1/13/82

 

 

213493

Twenty-sixth

6/17/82

 

 

216007

Twenty-seventh

7/25/86

 

 

239583

Twenty-eighth

12/5/89

 

 

254520

Twenty-ninth

3/19/90

 

 

255535

Thirtieth

3/11/91

 

 

259310

Thirty-first

9/6/91

 

 

261300

Thirty-second

5/8/92

 

 

263861

Thirty-third

5/27/93

 

 

268012

Thirty-fourth

4/28/94

 

 

272310

Thirty-fifth

1/8/01

 

 

305991

Thirty-sixth

12/6/01

 

 

311525

Thirty-seventh

7/21/03

 

 

324362

Thirty-eighth

11/3/03

 

 

311525

Thirty-ninth

12/4/03

 

 

327520

Fortieth

2/17/06

 

 

346415

Forty-first

4/2/07

 

 

357244

Forty-second

5/30/07

 

 

358888

Forty-third

10/3/07

 

 

362845

Forty-fourth

4/14/08

 

 

367417

Forty-fifth

3/9/10

 

 

383201

Forty-sixth

6/29/10

 

 

385408

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

JEROME COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/16/37

50

115

67993

First

9/30/39

118

230

74515

Second

11/30/43

124

557

88349

Third

2/17/47

137

30

98721

Fourth

5/20/48

137

515

103049

Fifth

12/1/49

146

53

107585

Sixth

11/3/51

146

343

114318

Seventh

1/29/57

157

19

131176

Eighth

8/16/57

162

381

133195

Ninth

1/2/58

157

128

134180

Tenth

4/23/58

157

171

135509

Eleventh

10/29/58

157

234

137315

Twelfth

6/4/59

157

290

139591

Thirteenth

12/12/60

170

54

144935

Fourteenth

11/24/61

170

168

148447

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

183

99

168245

Seventeenth

11/22/66

183

195

170034

Eighteenth

11/6/72

195

351

196790

Nineteenth

2/1/74

195

959

204022

Twentieth

8/20/74

195

1277

207682

Twenty-first

11/15/74

195

1377

208741

Twenty-second

12/16/76

198

775

222027

Twenty-third

8/25/78

202

246

235806

Twenty-fourth

9/21/79

 

 

244483

Twenty-fifth

1/12/82

 

 

262297

Twenty-sixth

6/16/82

 

 

265834

Twenty-seventh

7/24/86

 

 

299769

Twenty-eighth

12/5/89

 

 

318638

Twenty-ninth

3/19/90

 

 

320038

Thirtieth

3/11/91

 

 

910769

Thirty-first

9/6/91

 

 

913054

Thirty-second

5/7/92

 

 

921532

Thirty-third

5/27/93

 

 

931962

Thirty-fourth

4/28/94

 

 

941912

Thirty-fifth

1/8/01

 

 

2010105

Thirty-sixth

12/5/01

 

 

2015637

Thirty-seventh

7/18/03

 

 

2034363

Thirty-eighth

10/31/03

 

 

2036948

Thirty-ninth

12/3/03

 

 

2037700

Fortieth

2/14/06

 

 

2060906

Forty-first

3/30/07

 

 

2071926

Forty-second

5/25/07

 

 

2073143

Forty-third

10/2/07

 

 

2076019

Forty-fourth

4/10/08

 

 

2081888

Forty-fifth

3/5/10

 

 

2100913

Forty-sixth

6/24/10

 

 

2102733

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

LEMHI COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/19/37

O

342

48662

First

10/2/39

O

554

52421

Second

12/1/43

P

279

59463

Third

2/18/47

P

625

65383

Fourth

5/21/48

Q

243

67902

Fifth

12/2/49

Q

453

71055

Sixth

11/5/51

R

288

74661

Seventh

1/31/57

S

629

86322

Eighth

8/17/57

T

46

87587

Ninth

1/3/58

T

138

88620

Tenth

4/24/58

T

194

88995

Eleventh

10/30/58

T

287

90481

Twelfth

6/4/59

T

404

91422

Thirteenth

12/13/60

T

613

94709

Fourteenth

11/27/61

U

121

96385

Fifteenth*

 

 

 

 

Sixteenth

5/26/66

 

 

104433

Seventeenth

11/7/66

 

 

105524

Eighteenth

11/8/72

 

 

121991

Nineteenth

2/8/74

 

 

125951

Twentieth

8/28/74

 

 

127731

Twenty-first

11/25/74

 

 

128574

Twenty-second

12/27/76

 

 

135461

Twenty-third

8/30/78

 

 

142455

Twenty-fourth

10/5/79

 

 

148934

Twenty-fifth

1/27/82

 

 

161492

Twenty-sixth

6/17/82

 

 

162867

Twenty-seventh

7/24/86

 

 

181418

Twenty-eighth

12/5/89

 

 

204439

Twenty-ninth

3/19/90

 

 

205885

Thirtieth

3/8/91

 

 

209801

Thirty-first

11/6/91

 

 

211621

Thirty-second

5/8/92

 

 

214521

Thirty-third

5/27/93

 

 

218630

Thirty-fourth

4/28/94

 

 

222340

Thirty-fifth

1/8/01

 

 

246129

Thirty-sixth

12/6/01

 

 

249013

Thirty-seventh

7/21/03

 

 

255280

Thirty-eighth

11/3/03

 

 

256484

Thirty-ninth

12/4/03

 

 

256801

Fortieth

2/15/06

 

 

266201

Forty-first

3/30/07

 

 

271120

Forty-second

5/29/07

 

 

271741

Forty-third

10/3/07

 

 

273729

Forty-fourth

4/11/08

 

 

275814

Forty-fifth

3/8/10

 

 

282376

Forty-sixth

6/25/10

 

 

283348

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

LINCOLN COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/16/37

29

548

74516

First

9/30/39

30

175

77703

Second

12/2/43

31

104

84567

Third

2/15/47

31

421

89681

Fourth

5/20/48

31

D560

91881

Fifth

12/1/49

32

189

94176

Sixth

11/5/51

33

91

97220

Seventh

1/29/57

33

308

105790

Eighth

8/16/57

34

376

106468

Ninth

1/3/58

33

335

107022

Tenth

4/25/58

33

342

107454

Eleventh

11/7/58

33

362

108041

Twelfth

6/8/59

36

11

108894

Thirteenth

12/12/60

36

52

110828

Fourteenth

11/24/61

36

88

112073

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

 

 

118402

Seventeenth

11/7/66

 

 

119085

Eighteenth

11/6/72

 

 

126676

Nineteenth

2/1/74

 

 

128406

Twentieth

8/20/74

 

 

129241

Twenty-first

11/14/74

 

 

129469

Twenty-second

12/17/76

 

 

132484

Twenty-third

8/25/78

 

 

135894

Twenty-fourth

9/21/79

 

 

137874

Twenty-fifth

1/12/82

 

 

142048

Twenty-sixth

6/16/82

 

 

143047

Twenty-seventh

7/24/86

 

 

149886

Twenty-eighth

12/8/89

 

 

153582

Twenty-ninth

3/19/90

 

 

153826

Thirtieth

3/8/91

 

 

154737

Thirty-first

9/9/91

 

 

155244

Thirty-second

5/7/92

 

 

155953

Thirty-third

6/1/93

 

 

157022

Thirty-fourth

4/28/94

 

 

158095

Thirty-fifth

1/8/01

 

 

169812

Thirty-sixth

12/5/01

 

 

171649

Thirty-seventh

7/18/03

 

 

175132

Thirty-eighth

10/31/03

 

 

175798

Thirty-ninth

12/3/03

 

 

175946

Fortieth

2/17/06

 

 

180367

Forty-first

4/5/07

 

 

182870

Forty-second

5/31/07

 

 

183223

Forty-third

10/2/07

 

 

183833

Forty-fourth

4/10/08

 

 

184806

Forty-fifth

3/5/10

 

 

188552

Forty-sixth

6/24/10

 

 

189041

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

MINIDOKA COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/18/37

23

128

78580

First

10/4/39

23

290

84276

Second

11/29/43

26

135

93363

Third

2/17/47

26

233

101202

Fourth

5/20/48

26

428

104111

Fifth

12/1/49

26

627

107226

Sixth

11/19/51

28

550

111408

Seventh

2/4/57

32

41

126603

Eighth

8/26/57

34

103

129172

Ninth

1/20/58

34

49

130893

Tenth

4/23/58

34

139

132428

Eleventh

11/14/58

34

245

135150

Twelfth

6/22/59

35

109

139236

Thirteenth

12/12/60

36

453

147475

Fourteenth

11/27/61

Film #6

 

153631

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

 

 

184187

Seventeenth

11/9/66

 

 

186910

Eighteenth

11/6/72

 

 

228669

Nineteenth

1/31/74

23

32

239112

Twentieth

8/20/74

23

279

244151

Twenty-first

11/14/74

 

 

245641

Twenty-second

12/16/76

 

 

265864

Twenty-third

8/28/78

 

 

284983

Twenty-fourth

9/21/79

 

 

296684

Twenty-fifth

1/12/82

 

 

320342

Twenty-sixth

6/17/82

 

 

324742

Twenty-seventh

7/24/86

 

 

365754

Twenty-eighth

12/5/89

 

 

388944

Twenty-ninth

3/19/90

 

 

390682

Thirtieth

3/8/91

 

 

395847

Thirty-first

9/6/91

 

 

398486

Thirty-second

5/7/92

 

 

401969

Thirty-third

5/27/93

 

 

407067

Thirty-fourth

4/27/94

 

 

412513

Thirty-fifth

1/8/01

 

 

451059

Thirty-sixth

12/5/01

 

 

456501

Thirty-seventh

7/18/03

 

 

466992

Thirty-eighth

10/31/03

 

 

469126

Thirty-ninth

12/3/03

 

 

469627

Fortieth

2/14/06

 

 

482729

Forty-first

3/30/07

 

 

489997

Forty-second

6/5/07

 

 

491183

Forty-third

10/10/07

 

 

493337

Forty-fourth

4/15/08

 

 

496265

Forty-fifth

3/5/10

 

 

506697

Forty-sixth

6/24/10

 

 

508199

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

ONEIDA COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/15/45

17

500

66548

First

10/15/45

17

542

66549

Second

10/15/45

17

546

66550

Third

2/17/47

17

601

68178

Fourth

5/21/48

17

633

69127

Fifth

12/3/49

20

69

70480

Sixth

11/6/51

20

181

72574

Seventh

1/29/57

20

515

77541

Eighth

8/16/57

20

545

77927

Ninth

1/7/58

20

569

78383

Tenth

4/28/58

20

592

78592

Eleventh

11/5/58

20

621

79115

Twelfth

6/10/59

23

27

79623

Thirteenth

12/12/60

23

117

81021

Fourteenth

11/27/61

23

162

81752

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

23

517

85441

Seventeenth

11/7/66

23

531

85858

Eighteenth

11/6/72

 

 

90807

Nineteenth

1/31/74

 

 

92211

Twentieth

8/20/74

 

 

92892

Twenty-first

11/14/74

 

 

93130

Twenty-second

12/16/76

 

 

95608

Twenty-third

8/25/78

 

 

98365

Twenty-fourth

9/24/79

 

 

99924

Twenty-fifth

1/18/82

 

 

104137

Twenty-sixth

6/17/82

 

 

104755

Twenty-seventh

7/25/86

 

 

111518

Twenty-eighth

12/6/89

 

 

115623

Twenty-ninth

3/20/90

 

 

115943

Thirtieth

3/8/91

 

 

116812

Thirty-first

9/6/91

 

 

117372

Thirty-second

5/12/92

 

 

118107

Thirty-third

5/27/93

 

 

119170

Thirty-fourth

5/2/94

 

 

120316

Thirty-fifth

1/9/01

 

 

130370

Thirty-sixth

12/6/01

 

 

131766

Thirty-seventh

7/21/03

 

 

134620

Thirty-eighth

11/3/03

 

 

135164

Thirty-ninth

12/4/03

 

 

135311

Fortieth

2/15/06

 

 

138661

Forty-first

3/30/07

 

 

140612

Forty-second

5/29/07

 

 

140984

Forty-third

10/3/07

 

 

141670

Forty-fourth

4/11/08

 

 

142577

Forty-fifth

3/8/10

 

 

145445

Forty-sixth

6/25/10

 

 

145857

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

OWYHEE COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/18/37

20

393

54378

First

9/30/39

21

110

58416

Second

11/29/43

22

95

67353

Third

2/15/47

23

38

73729

Fourth

5/20/48

23

402

76566

Fifth

12/15/49

24

263

79607

Sixth

11/6/51

26

63

83825

Seventh

1/30/57

30

292

95514

Eighth

8/16/57

31

60

96612

Ninth

1/2/58

31

180

97292

Tenth

4/23/58

31

319

97994

Eleventh

10/29/58

32

4

98945

Twelfth

6/22/59

32

307

100549

Thirteenth

12/29/60

33

201

103853

Fourteenth

12/11/61

34

38

105963

Fifteenth*

 

 

 

 

Sixteenth

5/26/66

40

149

116127

Seventeenth

11/18/66

40

437

117100

Eighteenth

11/8/72

 

 

134015

Nineteenth

2/13/74

 

 

139091

Twentieth

8/28/74

 

 

141615

Twenty-first

11/22/74

 

 

142430

Twenty-second

12/23/76

 

 

149339

Twenty-third

9/6/78

 

 

156256

Twenty-fourth

9/28/79

 

 

160772

Twenty-fifth

1/20/82

 

 

171499

Twenty-sixth

6/20/82

 

 

173129

Twenty-seventh

7/24/86

 

 

189545

Twenty-eighth

12/6/89

 

 

201238

Twenty-ninth

3/19/90

 

 

207978

Thirtieth

3/8/91

 

 

204626

Thirty-first

9/6/91

 

 

205816

Thirty-second

5/7/92

 

 

207769

Thirty-third

5/27/93

 

 

210424

Thirty-fourth

4/28/94

 

 

212701

Thirty-fifth

1/9/01

 

 

234767

Thirty-sixth

12/7/01

 

 

238042

Thirty-seventh

7/21/03

 

 

244317

Thirty-eighth

10/31/03

 

 

245680

Thirty-ninth

12/3/03

 

 

246036

Fortieth

2/14/06

 

 

255209

Forty-first

3/30/07

 

 

260406

Forty-second

5/25/07

 

 

261094

Forty-third

10/2/07

 

 

262632

Forty-fourth

4/10/08

 

 

264534

Forty-fifth

3/8/10

 

 

270624

Forty-sixth

6/24/10

 

 

271378

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

PAYETTE COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/16/37

13

323

40996

First

10/5/39

15

9

45230

Second

11/29/43

17

119

55653

Third

2/15/47

18

403

65291

Fourth

5/20/48

20

443

70002

Fifth

12/3/49

21

558

74786

Sixth

11/6/51

24

437

80880

Seventh

1/29/57

29

569

96539

Eighth

8/16/57

35

220

98240

Ninth

1/20/58

31

311

99403

Tenth

5/7/58

33

327

100457

Eleventh

11/14/58

34

301

102262

Twelfth

6/22/59

35

295

104624

Thirteenth

12/29/60

38

147

109381

Fourteenth

12/11/61

39

424

112450

Fifteenth*

 

 

 

 

Sixteenth

5/23/66

44

562A

127139

Seventeenth

11/7/66

44

768

128473

Eighteenth

11/6/72

45

1707

148339

Nineteenth

2/12/74

 

 

153530

Twentieth

8/27/74

 

 

155801

Twenty-first

11/21/74

 

 

156622

Twenty-second

12/16/76

 

 

165630

Twenty-third

8/30/78

 

 

174921

Twenty-fourth

9/25/79

 

 

181028

Twenty-fifth

1/12/82

 

 

192300

Twenty-sixth

6/17/82

 

 

194519

Twenty-seventh

7/24/86

 

 

214639

Twenty-eighth

12/7/89

 

 

228773

Twenty-ninth

3/19/90

 

 

229839

Thirtieth

3/8/91

 

 

233687

Thirty-first

9/6/91

 

 

235839

Thirty-second

5/7/92

 

 

238825

Thirty-third

5/27/93

 

 

243900

Thirty-fourth

4/28/94

 

 

249528

Thirty-fifth

1/8/01

 

 

291553

Thirty-sixth

12/6/01

 

 

297673

Thirty-seventh

7/22/03

 

 

311129

Thirty-eighth

10/31/03

 

 

313969

Thirty-ninth

12/3/03

 

 

314671

Fortieth

2/16/06

 

 

333012

Forty-first

3/30/07

 

 

343453

Forty-second

5/25/07

 

 

345064

Forty-third

10/2/07

 

 

348487

Forty-fourth

4/10/08

 

 

352618

Forty-fifth

3/5/10

 

 

365316

Forty-sixth

6/24/10

 

 

367182

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

POWER COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/16/37

44

158

53981

First

9/30/39

88

389

56219

Second

11/29/43

44

223

61385

Third

2/18/47

44

357

65079

Fourth

6/2/48

44

376

66385

Fifth

12/5/49

44

394

68043

Sixth

11/6/51

44

418

70524

Seventh

1/29/57

44

468

76393

Eighth

8/16/57

44

474

76920

Ninth

1/2/58

44

486

77441

Tenth

4/25/58

44

492

77772

Eleventh

10/29/58

44

498

78578

Twelfth

6/9/59

44

504

79350

Thirteenth

12/12/60

44

534

81366

Fourteenth

11/24/61

44

539

82772

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

44

589

89261

Seventeenth

11/15/66

44

595

89976

Eighteenth

11/6/72

 

 

100246

Nineteenth

1/31/74

 

 

102931

Twentieth

8/20/74

 

 

204217

Twenty-first

11/14/74

 

 

104658

Twenty-second

12/16/76

 

 

109723

Twenty-third

8/25/78

 

 

115186

Twenty-fourth

9/24/79

 

 

118677

Twenty-fifth

1/13/82

 

 

125593

Twenty-sixth

6/17/82

 

 

127074

Twenty-seventh

7/24/86

 

 

141468

Twenty-eighth

12/5/89

 

 

Drawer 8

Twenty-ninth

3/19/90

 

 

152669

Thirtieth

3/11/91

 

 

154713

Thirty-first

9/9/91

 

 

155735

Thirty-second

5/11/92

 

 

157121

Thirty-third

5/27/93

 

 

159406

Thirty-fourth

4/28/94

 

 

161297

Thirty-fifth

1/9/01

 

 

176480

Thirty-sixth

1/28/02

 

 

178961

Thirty-seventh

7/21/03

 

 

182919

Thirty-eighth

11/3/03

 

 

183765

Thirty-ninth

12/4/03

 

 

183961

Fortieth

2/15/06

 

 

188768

Forty-first

3/30/07

 

 

191364

Forty-second

5/30/07

 

 

191749

Forty-third

10/4/07

 

 

192682

Forty-fourth

4/11/08

 

 

193680

Forty-fifth

3/8/10

 

 

197817

Forty-sixth

6/25/10

 

 

198475

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

TWIN FALLS COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/18/37

115

399

287572

First

10/4/39

117

617

303412

Second

12/6/43

125

469

337529

Third

2/26/47

135

559

368840

Fourth

5/20/48

143

551

381631

Fifth

12/15/49

152

173

395320

Sixth

11/17/51

160

194

414065

Seventh

1/29/57

176

186

460892

Eighth

9/7/57

178

127

466243

Ninth

1/2/58

181

178

469040

Tenth

4/23/58

181

297

472230

Eleventh

10/29/58

183

175

476951

Twelfth

6/4/59

185

329

483618

Thirteenth

12/12/60

193

222

498667

Fourteenth

11/27/61

196

102

508340

Fifteenth*

 

 

 

 

Sixteenth

5/17/66

206

1655

564329

Seventeenth

11/7/66

206

2145

569887

Eighteenth

11/10/72

209

939

642381

Nineteenth

2/7/74

209

3000

660774

Twentieth

8/20/74

210

864

669472

Twenty-first

11/15/74

210

1219

672628

Twenty-second

12/21/76

211

2483

707155

Twenty-third

9/6/78

213

3203

743941

Twenty-fourth

10/19/79

 

 

770079

Twenty-fifth

1/20/82

 

 

815641

Twenty-sixth

6/17/82

 

 

823112

Twenty-seventh

7/24/86

 

 

905549

Twenty-eighth

12/5/89

 

 

963561

Twenty-ninth

3/19/90

 

 

967727

Thirtieth

3/8/91

 

 

983087

Thirty-first

9/6/91

 

 

007589

Thirty-second

5/7/92

 

 

92006294

Thirty-third

5/27/93

 

 

1993007426

Thirty-fourth

4/27/94

 

 

1994007395

Thirty-fifth

1/9/01

 

 

2001000357

Thirty-sixth

12/11/01

 

 

2001-022746

Thirty-seventh

7/21/03

 

 

2003-018637

Thirty-eighth

11/3/03

 

 

2003-028544

Thirty-ninth

12/3/03

 

 

2003-031051

Fortieth

2/14/06

 

 

2006-003601

Forty-first

3/30/07

 

 

2007-007252

Forty-second

5/25/07

 

 

2007-012643

Forty-third

10/2/07

 

 

2007-024264

Forty-fourth

4/10/08

 

 

2008-007997

Forty-fifth

3/5/10

 

 

2010-004423

Forty-sixth

6/24/10

 

 

2010-012606

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

VALLEY COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

6/11/43

14

387

30708

First

6/11/43

14

477

30709

Second

11/30/43

14

518

31497

Third

2/18/47

16

67

35881

Fourth

5/20/48

16

198

37610

Fifth

12/1/49

17

317

40616

Sixth

11/7/51

17

525

43585

Seventh

1/29/57

18

536

50692

Eighth

8/16/57

19

304

51351

Ninth

1/2/58

18

644

51871

Tenth

4/24/58

20

43

52149

Eleventh

10/29/58

20

109

53073

Twelfth

6/4/59

20

203

53903

Thirteenth

12/10/60

20

395

56310

Fourteenth

11/25/61

20

501

57739

Fifteenth*

 

 

 

 

Sixteenth

5/23/66

22

599

65142

Seventeenth

11/7/66

24

31

66108

Eighteenth

11/9/72

 

 

77694

Nineteenth

1/31/74

 

 

81377

Twentieth

8/27/74

 

 

82871

Twenty-first

11/14/74

 

 

83581

Twenty-second

12/28/76

 

 

90326

Twenty-third

9/6/78

 

 

97512

Twenty-fourth

3/28/79

 

 

102707

Twenty-fifth

1/20/82

 

 

118171

Twenty-sixth

6/17/82

 

 

120873

Twenty-seventh

7/24/86

 

 

149180

Twenty-eighth

12/5/89

 

 

Drawer 3

Twenty-ninth

3/19/90

 

 

172223

Thirtieth

3/8/91

 

 

179103

Thirty-first

9/6/91

 

 

182727

Thirty-second

5/8/92

 

 

154311

Thirty-third

5/27/93

 

 

196193

Thirty-fourth

4/28/94

 

 

203559

Thirty-fifth

1/16/01

 

 

252100

Thirty-sixth

12/6/01

 

 

258940

Thirty-seventh

7/21/03

 

 

273926

Thirty-eighth

11/4/03

 

 

277620

Thirty-ninth

12/3/03

 

 

278505

Fortieth

2/14/06

 

 

305886

Forty-first

3/30/07

 

 

319966

Forty-second

6/5/07

 

 

322044

Forty-third

10/5/07

 

 

325736

Forty-fourth

4/10/08

 

 

330645

Forty-fifth

3/8/10

 

 

349955

Forty-sixth

6/24/10

 

 

352800

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

WASHINGTON COUNTY, IDAHO

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/18/37

36

20

58726

First

9/30/39

36

544

60609

Second

11/29/43

38

251

65031

Third

2/26/47

39

583

70215

Fourth

6/2/48

40

413

72205

Fifth

12/15/49

41

416

74054

Sixth

11/17/51

43

17

76392

Seventh

1/29/57

46

229

81975

Eighth

8/16/57

46

378

82553

Ninth

1/2/58

47

3

82875

Tenth

4/23/58

47

127

83145

Eleventh

11/14/58

47

376

83712

Twelfth

6/22/59

47

621

84336

Thirteenth

12/29/60

48

513

85647

Fourteenth

12/11/61

49

239

86400

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

53

309

91054

Seventeenth

11/23/66

53

635

91627

Eighteenth

11/6/72

57

492

97867

Nineteenth

1/31/74

57

784

100975

Twentieth

8/20/74

57

887

102358

Twenty-first

11/14/74

57

950

102936

Twenty-second

12/16/76

58

508

109036

Twenty-third

8/25/78

59

157

114530

Twenty-fourth

9/21/79

 

 

118193

Twenty-fifth

1/15/81

 

 

125914

Twenty-sixth

6/16/82

 

 

127291

Twenty-seventh

7/24/86

 

 

140855

Twenty-eighth

12/5/89

 

 

148359

Twenty-ninth

3/19/90

 

 

148963

Thirtieth

3/8/91

 

 

151207

Thirty-first

9/6/91

 

 

152694

Thirty-second

5/7/92

 

 

187349

Thirty-third

5/27/93

 

 

157031

Thirty-fourth

4/28/94

 

 

160001

Thirty-fifth

1/8/01

 

 

181643

Thirty-sixth

12/6/01

 

 

184475

Thirty-seventh

7/18/03

 

 

190382

Thirty-eighth

10/31/03

 

 

191708

Thirty-ninth

12/3/03

 

 

192068

Fortieth

2/14/06

 

 

200219

Forty-first

3/30/07

 

 

204900

Forty-second

5/25/07

 

 

205566

Forty-third

10/10/07

 

 

207041

Forty-fourth

4/10/08

 

 

209002

Forty-fifth

3/5/10

 

 

214517

Forty-sixth

6/24/10

 

 

215368

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

BAKER COUNTY, OREGON

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/22/37

74

128

94732

First

9/30/39

75

514

4696

Second

12/1/43

78

446

11827

Third

2/18/47

82

145

2859

Fourth

5/20/48

85

107

10581

Fifth

12/1/49

88

225

 

Sixth

11/6/51

92

574

 

Seventh

1/30/57

101

044

60450

Eighth

8/19/57

101

1088

63621

Ninth

1/2/58

102

233

65648

Tenth

4/23/58

102

638

67251

Eleventh

10/30/58

102

1451

70034

Twelfth

6/4/59

103

959

73388

Thirteenth

12/12/60

105

942

81646

Fourteenth

11/24/61

106

776

86648

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

66-19

064

6638

Seventeenth

11/7/66

66-45

009

9073

Eighteenth

11/6/72

72-45

009

41572

Nineteenth

1/31/74

74-05

079

49425

Twentieth

8/21/74

74-34

043

53396

Twenty-first

11/14/74

 

 

55121

Twenty-second

12/16/76

76-51

046

15011

Twenty-third

8/25/78

78-34-119

78-34-150

01317

Twenty-fourth

9/21/79

 

 

11148

Twenty-fifth

1/14/82

 

 

35307

Twenty-sixth

6/17/82

 

 

37912

Twenty-seventh

7/28/86

 

 

18753

Twenty-eighth

12/6/89

D89-49-098-113

16

 

Twenty-ninth

3/19/90

 

 

9012029

Thirtieth

3/11/91

 

 

9111017

Thirty-first

9/9/91

D91-37-053-074

 

 

Thirty-second

5/8/92

D92-19-046

 

 

Thirty-third

5/28/93

 

 

9322017

Thirty-fourth

4/28/94

 

 

9417171

Thirty-fifth

1/22/01

 

 

B01040069

Thirty-sixth

12/17/01

 

 

B01510161

Thirty-seventh

7/21/03

 

 

B0329 0149

Thirty-eighth

11/7/03

 

 

B0345 0056

Thirty-ninth

12/4/03

 

 

B03480277B

Fortieth

4/5/06

 

 

B06140224

Forty-first

3/30/07

 

 

B07140066

Forty-second

5/30/07

 

 

B07220205

Forty-third

10/3/07

 

 

B07400385

Forty-fourth

4/14/08

 

 

B08160118

Forty-fifth

3/8/10

 

 

10100082

Forty-sixth

6/25/10

 

 

B10260016

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

GRANT COUNTY, OREGON

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

6/9/72

 

 

68533

First

6/9/72

 

 

68534

Second

6/9/72

 

 

68535

Third

6/9/72

 

 

68536

Fourth

6/9/72

 

 

68537

Fifth

6/9/72

 

 

68538

Sixth

6/9/72

 

 

68539

Seventh

6/9/72

 

 

68540

Eighth

6/9/72

 

 

68541

Ninth

6/9/72

 

 

68542

Tenth

6/9/72

 

 

68543

Eleventh

6/9/72

 

 

68544

Twelfth

6/9/72

 

 

68545

Thirteenth

6/9/72

 

 

68546

Fourteenth

6/9/72

 

 

68547

Fifteenth*

 

 

 

 

Sixteenth

6/9/72

 

 

68548

Seventeenth

6/9/72

 

 

68549

Eighteenth

11/6/72

43

187

69544

Nineteenth

1/31/74

44

20

72555

Twentieth

8/20/74

44

428

74021

Twenty-first

11/14/74

44

580

74796

Twenty-second

12/16/76

46

410

80159

Twenty-third

8/31/78

48

345

85250

Twenty-fourth

9/21/79

 

 

88335

Twenty-fifth

1/14/82

 

 

96523

Twenty-sixth

6/17/82

 

 

97629

Twenty-seventh

7/28/86

 

 

110404

Twenty-eighth

12/6/89

61

432

 

Twenty-ninth

3/19/90

 

 

120371

Thirtieth

3/11/91

 

 

910169

Thirty-first

9/9/91

 

 

911510

Thirty-second

5/8/92

 

 

920806

Thirty-third

5/28/93

 

 

930859

Thirty-fourth

5/4/94

 

 

940851

Thirty-fifth

1/22/01

 

 

210181

Thirty-sixth

12/7/01

 

 

213152

Thirty-seventh

7/21/03

 

 

2189

Thirty-eighth

11/3/03

 

 

033288

Thirty-ninth

12/5/03

 

 

20033565B

Fortieth

2/15/06

 

 

20060334

Forty-first

4/2/07

 

 

20070891

Forty-second

5/29/07

 

 

20071429

Forty-third

10/3/07

 

 

20072735

Forty-fourth

4/11/08

 

 

20080865

Forty-fifth

3/8/10

 

 

20100410

Forty-sixth

6/25/10

 

 

101115

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

HARNEY COUNTY, OREGON

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/18/46

Q

337

70608

First

10/18/46

Q

421

70609

Second

10/18/46

Q

429

70610

Third

2/19/47

R

6

71570

Fourth

5/22/48

R

576

75339

Fifth

12/2/49

S

615

79188

Sixth

11/6/51

U

33

84135

Seventh

2/11/57

Y

322

98538

Eighth

8/19/57

Y

523

99965

Ninth

1/20/58

Z

82

101111

Tenth

5/1/58

Z

233

101882

Eleventh

11/3/58

Z

496

103047

Twelfth

6/9/59

A-1

188

104640

Thirteenth

12/12/60

A-2

239

108334

Fourteenth

11/24/61

A-3

199

111242

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

A-8

346

124906

Seventeenth

11/7/66

A-9

84

126398

Eighteenth

11/6/72

A-15

74

144160

Nineteenth

2/1/74

A-16

137

147772

Twentieth

8/20/74

A-16

485

149463

Twenty-first

11/15/74

A-16

654

150182

Twenty-second

12/20/76

A-19

400

167848

Twenty-third

8/25/78

A-24

670

175064

Twenty-fourth

9/24/79

 

 

179238

Twenty-fifth

1/14/82

 

 

189688

Twenty-sixth

6/17/82

 

 

190842

Twenty-seventh

7/28/86

 

 

861050

Twenty-eighth

12/6/89

 

 

891738

Twenty-ninth

3/19/90

 

 

900359

Thirtieth

3/11/91

 

 

910296

Thirty-first

9/9/91

 

 

911345

Thirty-second

5/8/92

 

 

920678

Thirty-third

5/28/93

 

 

930740

Thirty-fourth

4/28/94

 

 

940796

Thirty-fifth

1/22/01

 

 

20010141

Thirty-sixth

12/10/01

 

 

20012300

Thirty-seventh

7/21/03

 

 

20031431

Thirty-eighth

11/4/03

 

 

20032207

Thirty-ninth

12/4/03

 

 

20032377

Fortieth

2/16/06

 

 

20060315

Forty-first

3/30/07

 

 

20070704

Forty-second

5/29/07

 

 

20071188

Forty-third

10/3/07

 

 

20072214

Forty-fourth

4/14/08

 

 

20080605

Forty-fifth

3/8/10

 

 

20100273

Forty-sixth

6/25/10

 

 

20100709

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

MALHEUR COUNTY, OREGON

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/16/37

21

293

112125

First

10/6/39

24

346

125761

Second

12/6/43

31

274

19809

Third

2/27/47

38

386

47221

Fourth

6/2/48

43

384

59655

Fifth

12/15/49

50

5-26

1020

Sixth

11/19/51

59

213

17931

Seventh

2/6/57

81

290

10527

Eighth

9/10/57

84

135

15927

Ninth

1/22/58

85

464

18801

Tenth

4/28/58

86

503

1405

Eleventh

11/14/58

89

32

5907

Twelfth

6/22/59

91

564

12210

Thirteenth

12/29/60

98

595

25133

Fourteenth

12/12/61

102

227

33871

Fifteenth*

 

 

 

 

Sixteenth

6/7/66

119

138

73603

Seventeenth

11/18/66

120

177

76832

Eighteenth

11/8/72

 

 

139311

Nineteenth

2/7/74

 

 

154157

Twentieth

8/28/74

 

 

160821

Twenty-first

11/21/74

 

 

163442

Twenty-second

12/28/76

 

 

24602

Twenty-third

9/6/78

 

 

51133

Twenty-fourth

9/28/79

 

 

68872

Twenty-fifth

1/19/82

 

 

82-993559

Twenty-sixth

6/22/82

 

 

82-104958

Twenty-seventh

7/24/86

 

 

86-4840

Twenty-eighth

12/5/89

 

 

89-39609

Twenty-ninth

3/19/90

 

 

90-1848

Thirtieth

3/8/91

 

 

91-1302

Thirty-first

9/6/91

 

 

91-5774

Thirty-second

5/7/92

 

 

92-3270

Thirty-third

5/27/93

 

 

93-3278

Thirty-fourth

4/27/94

 

 

94-3020

Thirty-fifth

1/12/01

 

 

2001-287

Thirty-sixth

12/6/01

 

 

2001-8680

Thirty-seventh

7/18/03

 

 

2003-5749

Thirty-eighth

10/31/03

 

 

2003-8800

Thirty-ninth

12/3/03

 

 

2003-9816

Fortieth

2/28/06

 

 

2006-1391

Forty-first

3/30/07

 

 

2007-2396

Forty-second

5/25/07

 

 

2007-3947

Forty-third

10/2/07

 

 

2007-7420

Forty-fourth

4/10/08

 

 

2008-2291

Forty-fifth

3/5/10

 

 

2010-1388

Forty-sixth

6/24/10

 

 

2010-3850

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

MORROW COUNTY, OREGON

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

9/28/78

 

 

14114

First

9/28/78

 

 

14115

Second

9/28/78

 

 

14116

Third

9/28/78

 

 

14117

Fourth

9/28/78

 

 

14118

Fifth

9/28/78

 

 

14119

Sixth

9/28/78

 

 

14120

Seventh

9/28/78

 

 

14121

Eighth

9/28/78

 

 

14122

Ninth

9/28/78

 

 

14123

Tenth

9/28/78

 

 

14124

Eleventh

9/28/78

 

 

14125

Twelfth

9/28/78

 

 

14126

Thirteenth

9/28/78

 

 

14127

Fourteenth

9/28/78

 

 

14128

Fifteenth*

 

 

 

 

Sixteenth

9/28/78

 

 

14129

Seventeenth

9/28/78

 

 

14130

Eighteenth

9/28/78

 

 

14131

Nineteenth

9/28/78

 

 

14132

Twentieth

9/28/78

 

 

14133

Twenty-first

9/28/78

 

 

14134

Twenty-second

9/28/78

 

 

14135

Twenty-third

9/29/78

 

 

14136

Twenty-fourth

9/28/79

 

 

123410

Twenty-fifth

1/27/82

 

 

127687

Twenty-sixth

6/18/82

 

 

20499

Twenty-seventh

8/8/86

 

 

135163

Twenty-eighth

12/6/89

 

 

M-34008

Twenty-ninth

3/19/90

 

 

34664

Thirtieth

3/11/91

 

 

M-36367

Thirty-first

3/11/91

 

 

M-37263

Thirty-second

5/8/92

 

 

M-38466

Thirty-third

5/28/93

 

 

M-40524

Thirty-fourth

4/28/94

 

 

M-42607

Thirty-fifth

1/16/01

 

 

2001-74

Thirty-sixth

7/29/10

 

 

2010-26586

Thirty-seventh

7/29/10

 

 

2010-26587

Thirty-eighth

7/29/10

 

 

2010-26588

Thirty-ninth

7/29/10

 

 

2010-26590

Fortieth

7/29/10

 

 

2010-26591

Forty-first

7/29/10

 

 

2010-26592

Forty-second

7/29/10

 

 

2010-26593

Forty-third

7/29/10

 

 

2010-26594

Forty-fourth

7/29/10

 

 

2010-26595

Forty-fifth

7/29/10

 

 

2010-26596

Forty-sixth

 

 

 

 

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

UNION COUNTY, OREGON

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/1/55

 

 

41520

First

10/1/55

 

 

41521

Second

10/1/55

 

 

41522

Third

10/1/55

 

 

41523

Fourth

10/1/55

 

 

41524

Fifth

10/1/55

 

 

41524

Sixth

10/1/55

 

 

41526

Seventh

1/29/57

118

516

46427

Eighth

8/27/57

119

568

48437

Ninth

1/2/58

120

254

49854

Tenth

4/22/58

120

531

50903

Eleventh

11/3/58

121

470

52719

Twelfth

6/4/59

122

385

54981

Thirteenth

12/13/60

124

694

60439

Fourteenth

11/27/61

126

172

63920

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

134

393

12192

Seventeenth

11/7/66

135

413

13941

Eighteenth

11/7/72

 

 

41380

Nineteenth

2/7/74

 

 

48357

Twentieth

8/28/74

 

 

51734

Twenty-first

11/15/74

 

 

52889

Twenty-second

12/17/76

 

 

65997

Twenty-third

9/6/78

 

 

79646

Twenty-fourth

10/1/79

 

 

87770

Twenty-fifth

1/27/82

 

 

104290

Twenty-sixth

6/18/82

 

 

105466

Twenty-seventh

7/28/86

 

 

119524

Twenty-eighth

12/6/89

 

 

131912

Twenty-ninth

3/19/90

 

 

132791

Thirtieth

3/11/91

 

 

136424

Thirty-first

9/9/91

 

 

138538

Thirty-second

5/11/92

 

 

141586

Thirty-third

6/1/93

 

 

147495

Thirty-fourth

4/28/94

 

 

153406

Thirty-fifth

1/22/01

 

 

20010266

Thirty-sixth

12/7/01

 

 

20015583

Thirty-seventh

7/21/03

 

 

20034754

Thirty-eighth

11/3/03

 

 

20037473

Thirty-ninth

12/4/03

 

 

20038087

Fortieth

2/15/06

 

 

20060725

Forty-first

3/30/07

 

 

20071604

Forty-second

6/15/07

 

 

20073197

Forty-third

10/11/07

 

 

20075750

Forty-fourth

4/18/08

 

 

2008-1599

Forty-fifth

3/8/10

 

 

20100892

Forty-sixth

6/25/10

 

 

20102202

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

WALLOWA COUNTY, OREGON

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

6/12/59

 

 

55284

First

6/12/59

 

 

55285

Second

6/12/59

 

 

55286

Third

6/12/59

 

 

55287

Fourth

6/12/59

 

 

55288

Fifth

6/12/59

 

 

55289

Sixth

6/12/59

 

 

55290

Seventh

6/12/59

 

 

55291

Eighth

6/12/59

 

 

55292

Ninth

6/12/59

 

 

55293

Tenth

6/12/59

 

 

55294

Eleventh

6/12/59

 

 

55295

Twelfth

6/12/59

60

454

55297

Thirteenth

12/12/60

61

613

58124

Fourteenth

11/28/61

62

490

59930

Fifteenth*

 

 

 

 

Sixteenth

5/13/66

66

335

68163

Seventeenth

11/7/66

66

663

68974

Eighteenth

11/7/72

72

178

80964

Nineteenth

1/31/74

74

2

83916

Twentieth

8/21/74

74

416

85247

Twenty-first

11/14/74

74

643

85875

Twenty-second

12/17/76

77

157

91105

Twenty-third

8/25/78

80

267

96947

Twenty-fourth

9/21/79

 

 

101151-A

Twenty-fifth

1/13/82

 

 

03504

Twenty-sixth

6/17/82

 

 

04464

Twenty-seventh

7/28/86

 

 

10961

Twenty-eighth

12/6/89

99

1

 

Twenty-ninth

3/21/90

 

 

16873

Thirtieth

3/11/91

 

 

91-18544

Thirty-first

9/9/91

 

 

91-19642

Thirty-second

5/8/92

 

 

92-21126

Thirty-third

6/7/93

 

 

23712

Thirty-fourth

4/28/94

 

 

26133

Thirty-fifth

1/22/01

 

 

200142584

Thirty-sixth

12/7/01

 

 

044446

Thirty-seventh

2/27/04

 

 

048595

Thirty-eighth

11/3/03

 

 

03-49410

Thirty-ninth

12/4/03

 

 

03-49624

Fortieth

2/15/06

 

 

2006-55000

Forty-first

3/30/07

 

 

57506

Forty-second

6/4/07

 

 

2007-57870

Forty-third

10/4/07

 

 

200758576

Forty-fourth

4/11/08

 

 

59563

Forty-fifth

3/8/10

 

 

63323

Forty-sixth

6/28/10

 

 

63806

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

ELKO COUNTY, NEVADA

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

10/18/37

4

39

65874

First

10/2/39

4

295

71475

Second

12/1/43

5

266

82445

Third

2/19/47

6

411

93620

Fourth

6/4/48

R&C M

 

99822

Fifth

12/2/49

7

390

106050

Sixth

11/6/51

21

384

113985

Seventh

1/30/57

29

413

10048

Eighth

8/19/57

30

379

11852

Ninth

1/2/58

31

145

12838

Tenth

4/23/58

31

372

13381

Eleventh

11/17/58

32

492

15084

Twelfth

6/5/59

34

253

16276

Thirteenth

12/13/60

9

335

2721

Fourteenth

11/27/61

20

202

6720

Fifteenth*

 

 

 

 

Sixteenth

5/27/66

69

108

24897

Seventeenth

11/7/66

75

589

27864

Eighteenth

11/13/72

170

387

72180

Nineteenth

2/1/74

189

477

80550

Twentieth

9/3/74

200

297

85424

Twenty-first

12/2/74

205

89

87712

Twenty-second

1/6/77

241

289

102743

Twenty-third

9/7/78

275

453

115844

Twenty-fourth

10/9/79

 

 

127348

Twenty-fifth

1/27/82

 

 

159761

Twenty-sixth

6/17/82

 

 

163894

Twenty-seventh

7/28/86

 

 

217231

Twenty-eighth

12/8/89

 

 

285930

Twenty-ninth

3/19/90

 

 

289311

Thirtieth

3/11/91

 

 

303865

Thirty-first

9/9/91

 

 

310473

Thirty-second

5/8/92

 

 

320836

Thirty-third

6/1/93

 

 

338197

Thirty-fourth

4/29/94

 

 

352666

Thirty-fifth

1/8/01

 

 

465996

Thirty-sixth

12/19/01

 

 

43374

Thirty-seventh

9/24/03

 

 

506529

Thirty-eighth

12/10/03

 

 

511472

Thirty-ninth

12/10/03

 

 

511471

Fortieth

2/15/06

 

 

548799

Forty-first

3/30/07

 

 

570190

Forty-second

5/29/07

 

 

573746

Forty-third

10/3/07

 

 

582722

Forty-fourth

4/11/08

 

 

594006

Forty-fifth

3/8/10

 

 

623862

Forty-sixth

6/25/10

 

 

627838

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

HUMBOLDT COUNTY, NEVADA

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

5/11/82

 

 

221389

First

5/11/82

 

 

221390

Second

5/11/82

 

 

221391

Third

5/11/82

 

 

221392

Fourth

5/11/82

 

 

221393

Fifth

5/11/82

 

 

221394

Sixth

5/11/82

 

 

221395

Seventh

5/11/82

 

 

221396

Eighth

5/11/82

 

 

221397

Ninth

5/11/82

 

 

221398

Tenth

5/11/82

 

 

221399

Eleventh

5/11/82

 

 

221400

Twelfth

5/11/82

 

 

221401

Thirteenth

5/11/82

 

 

221402

Fourteenth

5/11/82

 

 

221403

Fifteenth*

 

 

 

 

Sixteenth

5/11/82

 

 

221404

Seventeenth

5/11/82

 

 

221405

Eighteenth

5/11/82

 

 

221406

Nineteenth

5/11/82

 

 

221407

Twentieth

5/11/82

 

 

221408

Twenty-first

5/11/82

 

 

221409

Twenty-second

5/11/82

 

 

221410

Twenty-third

5/11/82

 

 

221411

Twenty-fourth

5/11/82

 

 

221412

Twenty-fifth

5/11/82

 

 

221413

Twenty-sixth

6/17/82

 

 

222484

Twenty-seventh

7/29/86

 

 

259872

Twenty-eighth

12/6/89

283

202

 

Twenty-ninth

3/20/90

 

 

315916

Thirtieth

3/11/91

 

 

323700

Thirty-first

9/9/91

 

 

327674

Thirty-second

5/8/92

 

 

333314

Thirty-third

5/28/93

 

 

341674

Thirty-fourth

5/9/94

 

 

348823

Thirty-fifth

1/8/01

 

 

2001-90

Thirty-sixth

7/29/10

 

 

2010-4314

Thirty-seventh

7/29/10

 

 

2010-4315

Thirty-eighth

7/29/10

 

 

2010-4316

Thirty-ninth

7/29/10

 

 

2010-4317

Fortieth

7/29/10

 

 

2010-4318

Forty-first

7/29/10

 

 

2010-4319

Forty-second

7/29/10

 

 

2010-4320

Forty-third

7/29/10

 

 

2010-4321

Forty-fourth

7/29/10

 

 

2010-4322

Forty-fifth

7/29/10

 

 

2010-4323

Forty-sixth

7/29/10

 

 

2010-4324

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

LANDER COUNTY, NEVADA

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

8/2/10

610

1

257920

First

8/2/10

610

1

257920

Second

8/2/10

610

1

257920

Third

8/2/10

610

1

257920

Fourth

8/2/10

610

1

257920

Fifth

8/2/10

610

1

257920

Sixth

8/2/10

610

1

257920

Seventh

8/2/10

610

1

257920

Eighth

8/2/10

610

1

257920

Ninth

8/2/10

610

1

257920

Tenth

8/2/10

610

1

257920

Eleventh

8/2/10

610

1

257920

Twelfth

8/2/10

610

1

257920

Thirteenth

8/2/10

610

1

257920

Fourteenth

8/2/10

610

1

257920

Fifteenth*

 

 

 

 

Sixteenth

8/2/10

610

1

257920

Seventeenth

8/2/10

610

1

257920

Eighteenth

8/2/10

610

1

257920

Nineteenth

8/2/10

610

1

257920

Twentieth

8/2/10

610

1

257920

Twenty-first

8/2/10

610

1

257920

Twenty-second

8/2/10

610

1

257920

Twenty-third

8/2/10

610

1

257920

Twenty-fourth

8/2/10

610

1

257920

Twenty-fifth

8/2/10

610

1

257920

Twenty-sixth

8/2/10

610

1

257920

Twenty-seventh

8/2/10

610

1

257920

Twenty-eighth

8/2/10

610

1

257920

Twenty-ninth

8/2/10

610

1

257920

Thirtieth

8/2/10

610

1

257920

Thirty-first

8/2/10

610

1

257920

Thirty-second

8/2/10

610

1

257920

Thirty-third

8/2/10

610

1

257920

Thirty-fourth

8/2/10

610

1

257920

Thirty-fifth

8/2/10

610

1

257920

Thirty-sixth

8/2/10

610

1

257920

Thirty-seventh

8/2/10

610

1

257920

Thirty-eighth

8/2/10

610

1

257920

Thirty-ninth

8/2/10

610

1

257920

Fortieth

8/2/10

610

1

257920

Forty-first

8/2/10

610

1

257920

Forty-second

8/2/10

610

1

257920

Forty-third

8/2/10

610

1

257920

Forty-fourth

8/2/10

610

1

257920

Forty-fifth

8/2/10

610

1

257920

Forty-sixth

8/2/10

610

1

257920

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

LINCOLN COUNTY, WYOMING

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

2/15/72

 

 

U-16707

First

2/15/72

 

 

U-16708

Second

2/15/72

 

 

U-16709

Third

2/15/72

 

 

U-16710

Fourth

2/15/72

 

 

U-16711

Fifth

2/15/72

 

 

U-16712

Sixth

2/15/72

 

 

U-16713

Seventh

2/15/72

 

 

U-16714

Eighth

2/15/72

 

 

U-16715

Ninth

2/15/72

 

 

U-16716

Tenth

2/15/72

 

 

U-16717

Eleventh

2/15/72

 

 

U-16718

Twelfth

2/15/72

 

 

U-16719

Thirteenth

2/15/72

 

 

U-16720

Fourteenth

2/15/72

 

 

U-16721

Fifteenth*

 

 

 

 

Sixteenth

2/15/72

 

 

U-16722

Seventeenth

2/15/72

 

 

U-16723

Eighteenth

11/7/72

102

159

442688

Nineteenth

2/8/74

110

221

453750

Twentieth

9/3/74

114

379

459840

Twenty-first

11/29/74

116

140

461966

Twenty-second

12/29/76

132

419

487221

Twenty-third

9/7/78

149

120

513599

Twenty-fourth

10/2/79

 

 

397

Twenty-fifth

1/28/82

 

 

339

Twenty-sixth

6/17/82

 

 

579262

Twenty-seventh

7/28/86

 

 

659212

Twenty-eighth

12/6/89

281

56

 

Twenty-ninth

3/30/90

 

 

715403

Thirtieth

3/11/91

 

 

729592

Thirty-first

10/7/91

 

 

739346

Thirty-second

5/11/92

310

77

 

Thirty-third

6/14/93

330

366

 

Thirty-fourth

4/28/94

 

 

782209

Thirty-fifth

1/15/01

 

 

870779

Thirty-sixth

1/28/02

 

 

878820

Thirty-seventh

9/15/03

 

 

893425

Thirty-eighth

12/15/03

 

 

895900

Thirty-ninth

12/3/03

 

 

896191

Fortieth

4/6/06

 

 

000372

Forty-first

4/16/07

 

 

928435

Forty-second

6/1/07

660

170

929899

Forty-third

10/12/07

675

439

934017

Forty-fourth

4/14/08

 

 

938225

Forty-fifth

3/8/10

 

 

952409

Forty-sixth

6/28/10

 

 

954140

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 


 

EXHIBIT A

 

SWEETWATER COUNTY, WYOMING

Supplemental Indenture

Date Recorded

Book

Page

Instrument No.

Original Mortgage

7/6/71

 

 

26509

First

7/6/71

 

 

26510

Second

7/6/71

 

 

26511

Third

7/6/71

 

 

26512

Fourth

7/6/71

 

 

26513

Fifth

7/6/71

 

 

26514

Sixth

7/6/71

 

 

26515

Seventh

7/6/71

 

 

26516

Eighth

7/6/71

 

 

26517

Ninth

7/6/71

 

 

26518

Tenth

7/6/71

 

 

26519

Eleventh

7/6/71

 

 

26520

Twelfth

7/6/71

 

 

26521

Thirteenth

7/6/71

 

 

26522

Fourteenth

7/6/71

 

 

26523

Fifteenth*

 

 

 

 

Sixteenth

7/6/71

 

 

26524

Seventeenth

7/6/71

 

 

26525

Eighteenth

11/10/72

517

603

418926

Nineteenth

2/1/74

540

193

439080

Twentieth

8/30/74

557

303

453600

Twenty-first

11/25/74

562

146

458291

Twenty-second

1/3/77

635

I25

719332

Twenty-third

9/15/78

694

86

772490

Twenty-fourth

10/12/79

 

 

804130

Twenty-fifth

2/10/82

 

 

1540

Twenty-sixth

6/18/82

 

 

1007

Twenty-seventh

8/28/86

 

 

001569

Twenty-eighth

12/6/89

804

731

 

Twenty-ninth

3/20/90

 

 

1063065

Thirtieth

3/25/91

 

 

1085328

Thirty-first

9/9/91

 

 

1085879

Thirty-second

5/18/92

 

 

1112475

Thirty-third

5/28/93

 

 

1137888

Thirty-fourth

4/28/94

 

 

1161663

Thirty-fifth

1/8/01

 

 

1326337

Thirty-sixth

1/8/01

 

 

13210237

Thirty-seventh

9/19/03

 

 

1396141

Thirty-eighth

12/15/03

 

 

1402447

Thirty-ninth

12/15/03

 

 

1402422

Fortieth

2/28/06

 

 

1465345

Forty-first

3/30/07

 

 

1499465

Forty-second

6/1/07

 

 

1505080

Forty-third

10/5/07

 

 

1517178

Forty-fourth

4/14/08

 

 

1530606

Forty-fifth

3/9/10

 

 

1577565

Forty-sixth

6/29/10

 

 

1584146

*   The Fifteenth Supplemental Indenture amended Section 12 of the Mortgage and did not

     include property additions.  Accordingly this Supplemental Indenture was not recorded.

 

 

 


 


 

 

EXHIBIT B

ADA COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Central Headquarters (CHQ)

L. Marvin and Jean Peterson

9208762

 

2-14-1992

CHQ

Zions First National Bank

862824

 

10-5-1973

CHQ

Nina White

864172

 

10-22-1973

CHQ

Inland Coca-Cola Bottling Co.

7820980

 

4-24-1978

CHQ

Western National Corporation

7831573

 

6-14-1978

Parking

Walton A. Glenn

8022561

 

5-9-1980

Parking

Albert L. Trulemans, et al

8022563

 

5-9-1980

Parking

Charles L. and Dianne P. Winder

8400966

 

1-9-1984

Parking

R.M. and Eula J. Logsdon

850709

 

6-18-1973

Parking

Charles L. and Dianne P. Winder

8503355

 

1-18-1985

Parking

Mary Ellen Van Deusen, et al

7633375

 

8-23-1976

Plaza 1 Office

Vera K. Fisch

141253

193/ 233

8-27-1930

Plaza 1 Office

A.N. and Verna Locklear

278740

327/97

8-20-1948

Plaza 2 Office

J. Gordon Brookover, et al

8500735

 

1-4-1985

Plaza 2 Office

H.A. Dinwiddie

8500736

 

1-4-85

Boise Operation Center

Ralph C. and Lois Ann Shoemaker

8446861

 

9-19-1984

Boise Records Center

E.H. & W.C. Dewey Investment Company

97933

153/162

2-2-1922

Boise Records Center

E.H. & W.C. Dewey Investment Company

116869

196/113

7-29-1925

Boise Records Center

Quinn Robbins Co. Inc.

107108505

 

7-31-2007

Boise Vehicle Storage

Quinn-Robbins Company, Inc.

258874

300/518

1-11-1947

C.J. Strike Hydro Project

Tina McDonough Peterson

7514492

 

6-10-1975

Boise Bench Microwave Site

State of Idaho

535584

 

8-17-1962

Boise Bench Substation

Bank of Idaho as Conservator of the Nelson Estate

8411138

 

3-9-1984

Boise Bench Substation

Charles F. and Alice Jean Svoboda

290801

 

9-8-1949

Boise Bench Substation

Marie and Charles Svoboda

290802

 

9-8-1949

Boise Bench Substation

Francis Mike and A. Joan Svoboda

418874

 

11-5-1957

Boise Bench Substation

Charles F. and Marie Svoboda

418875

 

11-5-1957

Boise Bench Substation

Alice Jean and Charles F. Svoboda

418877

 

11-5-1957

Boise Bench Substation

Clair C. Svoboda and Anna E. Svoboda

418876

 

11-5-1957

Boise Bench Substation

Vernon J. Brollier, et al

712397

 

3-26-1969

Boise Bench Substation

State of Idaho

256961

300/182

10-16-1946

Boise Bench Substation

State of Idaho

242447

288/343

11-28-1945

Boise Bench Substation

State of Idaho

254259

 

8-31-1946

Boise Bench Substation

State of Idaho

254257

 

8-31-1946

Boise Bench Substation

State of Idaho

254259

 

8-31-1946

Boise Bench Substation

State of Idaho

256962

300/182

11-16-1946

Boise Bench Substation

State of Idaho

284166

 

2-22-1949

Boise Bench Substation

State of Idaho

254256

299/345

8-31-1946

Boise Bench Substation

State of Idaho

254255

299/343

8-31-1946

State Street Substation

Intermountain Company

458237

 

7-6-1959

State Street Substation

Forrest K. and Connie Skaggs

96003586

 

1-12-1996

State Street Substation

Verle L. and Mildred O. Roberts

482490

 

7-1-1960

Kuna Substation

Steve Guinn

101103683

 

10-5-2001

Kuna Substation

Kuna’s Swann Falls Storage, Inc.

101136091

 

12-21-2001

Kuna Substation

Kuna’s Swann Falls Storage, Inc.

102131360

 

11-8-2002

Beacon Light Substation

Ryan and Mary Jo Hood

102158365

 

12-30-2002

Beacon Light Substation

Ryan and Mary Jo Hood

103171684

 

10-8-2003

Columbia Substation

Monte S. and Janet L. Davis

105175774

 

11-18-2005

Columbia Substation

Monte S. and Janet L. Davis

106002914

 

1-6-2006

Locust Substation

John and D. Jeanne Tolk

7641658

 

10-21-1976

Locust Substation

John and Jeanne D. Tolk, as Co-Trustees of the Tolk Trust

101014615

 

2-20-2001

Victory Substation

William P. and Rosalee Wigle

8918846

 

4-27-1989

Amity Substation

Lynae S. and Jerry D. Hibbard

105082382

 

6-22-2005

Amity Substation

Lynae S. and Jerry D. Hibbard

105002302

 

6-22-2005

Dry Creek Substation

David L. Nordling, et al

7508390

 

4-25-1975

Grove Substation

Frank P. and Olive M. Kloepfer

555651

 

5-13-1963

Hillsdale Substation

Martin L. Hill

103014434

 

1-28-2003

Meridian Substation

James O. and Helen Jones Beck

293823

 

11-17-1949

Ustick Substation

Wesley T. and Irene F. Fry

543519

 

12-4-1962

Wye Substation

Kenneth L. and Margaret Ridgeway

330425

 

4-16-1952

Cartwright Substation

The Terteling Company, Inc.

106046455

 

3-27-2006

Butler Substation

Lillian J. Hensley

330424

 

4-16-1952

Black Cat Substation

Bill and Mary Wright

98021033

 

3-6-1998

Eagle Substation

N.A. Smith

310752

 

11-18-1950

Cloverdale Substation

Clair S. and Mary E. Hawkins

696395

 

8-2-1968

Star Substation

Joseph and Nancy Moyle

102005835

 

1-16-2002

Stoddard Substation

GCJ Investments, LLC

101105707

 

10-11-2001

Joplin Substation

David E. and Mary M. Leader, as trustees of the Leader Trust

101016877

 

2-26-2001

Hubbard Substation

John S. and Nellie H. Wood

894700

 

8-1-1974

Mora Substation

Robert P. Brown, et al

522630

 

3-1-1962

Gary Substation

Nellie E. Anderson, et al

8305918

 

2-4-1983

Bethel Court Substation

Samuel W. Coil, et al

100027552

 

4-11-2000

Fischer Substation

ADS, Inc.

107109412

 

8-2-2007

Cloverdale Substation

Ronald W. Van Auker

100081476

 

10-11-2000

Ada County Land

Ronald W. and Bessie Marte Scott

100027553

 

4-11-2000

Ada County Land

Alliance Title and Escrow Corp, as Trustee of the Burkhalter Trust

105032726

 

3-18-2005

Ada County Land

Union Pacific Railroad Company

8850022

 

10-12-1988

Ada County Land

Larry K. Peterson

99017212

 

2-22-1999

Ada County Land

Larry K. Peterson

99046507

 

5-7-1999

Ada County Land

Mountain States Telephone and Telegraph Company

8551830

 

1-10-1985

Ada County Land

Boise Industrial Foundation

99015545

 

2-17-1999

Transmission Line Land

Karl Fischer, et al

420137

 

12-2-1957

Transmission Line Land

Marion Smith

412397

 

7-3-1957

Transmission Line Lands

W. Robert McBirney, et al

8228202

 

7-2-1982

 

Guy and Sylvia E. Healey

409206

 

4-1-1957

Transmission Line Land

Howard C. and Muriel L. Ferguson

408761

 

4-9-1957

Transmission Line Land

Walter R. and Gloria F. Smith

407812

 

3-25-1957

Transmission Line Land

Mark C. and Joanne G. Peckham

407472

 

3-9-1957

Transmission Line Land

Western Christian College

407492

 

3-9-1957

Transmission Line Land

Surprise Valley Famrs, Inc.

642320

 

6-24-1966

 

Bruce and Beth Bowler

9168378

 

12-2-1991

Transmission Line Land

Marion Smith

412397

 

4-3-1957

Transmission Line Land

D&C Farms, Inc.

412316

 

4-2-1957

 

 


 


 

 

EXHIBIT B

 

 

ADAMS COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

5495

5/419

8-16-1916

Hells Canyon Hydro Project

Albert W. and Grace L. Campbell

36927

23/275

11-4-1955

Hells Canyon Hydro Project

Albert W. and Grace L. Campbell

36928

23/276

11-4-1955

Hells Canyon Hydro Project

Albert W. and Grace L. Campbell

39179

24/453

11-26-1958

Hells Canyon Hydro Project

Albert W. and Grace L. Campbell

39544

24/575

5-25-1959

Hells Canyon Hydro Project

Albert W. and Grace L. Campbell

39862

25/38

10-22-1959

Hells Canyon Hydro Project

Albert W. and Grace L. Campbell

41156

25/447

7-24-1961

Hells Canyon Hydro Project

Ferdinand C. and Florence M. Alers

41037

25/413

5-23-1961

Hells Canyon Hydro Project

Frank J. and Leta O. Smith

41157

25/448

7-24-1961

Hells Canyon Hydro Project

Emma Louise Antz

41092

25/429

6-19-1961

Hells Canyon Hydro Project

C.J. and Alice Newlin

39006

24/408

9-10-1958

Council Substation

Adams County, Idaho

32461

21/162

3-19-1949

Tamarack Substation

Evergreen Forest Products Co.

44759

27/14

10-29-1965

New Meadows Substation

Richard Balbach and Helen Balbach

 

21/110

12-29-1948

Jump Substation

Boise Cascade Corporation

105763

 

4-6-2004

OX Ranch Property

Hixon Properties, Inc.

113309

 

12-13-2006

OX Ranch Property

Hixon Properties, Inc.

113310

 

12-13-2006

Indian Creek Property

Karen A. McGuiness

117637

 

12-31-2008

 

 


 


 

 

EXHIBIT B

 

 

BANNOCK COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

48569

31/220

8-14-1916

Bannock County Land

Paul and Mary Luana Lish

795768

 

06/04/1987

Pocatello Operation Center

Farrell J and Gloria M Jones, et al

747972

 

04/23/1985

Pocatello Operation Center

Fergus, Jr and Shirley Briggs

728833

 

05/10/1984

Pocatello Operation Center

Robert S Bohrer

645899

 

04/15/1980

Pocatello Operation Center

Margaret Boero Sweikers

544725

 

10/24/1975

Pocatello Operation Center

Marshall Brothers, Inc

416893

 

06/15/1965

Pocatello Operation Center

Irene J Ames

459145

 

03/20/1969

Pocatello Operation Center

George W and Ada Watson Hardwick

525760

 

07/22/1974

Pocatello Operation Center

Irene J Ames

459144

 

03/20/1969

Pocatello Operation Center

Arthur J and Inez S Ashby

499167

 

09/08/1972

Pocatello Operation Center

Marshall Brother, Inc

416894

 

06/15/1965

Pocatello Operation Center

Garrett Terminal Corporation

280746

110/411

04/10/1951

Pocatello Operation Center

Richard E and Darryl Maynard

417129

 

06/21/1965

Portneuf Substation

Gertrude E Guyer

721684

 

01/10/1984

Siphon Substation

Albert M and Betty E Johnson

505688

 

03/08/1973

Inkom Junction Substation

Evan Franklin and Elva Barron

429922

 

07/13/1966

Tyhee Substation

H Leo and Laura B A Lewis

368802

 

05/24/1961

Alemeda Substation

Harold K and Louisa B Lenon, et al

531085

 

12/13/1974

Terry Substation

Wendell and Barbara Marshall, et al

411491

 

12/28/1964

Highland Substation

J &D, Hancock Family Investments

97018178

 

10/22/1997

Pocatello West Substation

F M and Anne Bistline

223025

85/624

10/26/1942

Freemont Substation

Johanna N Briggs

462665

 

07/30/1969

Terry Substation

Wendell and Barbara Marshall, et al

411920

 

01/13/1965

Freemont Substation

William E and Ruth M Schutt

411490

 

12/28/1964

Portneuf 138 kV

Richard and Lea Joy Armstrong

89015305

 

12/13/1989

Bannock County Land

Bannock County, Idaho

303366

120/135

10/12/1954

Bannock County Land

Bannock County, Idaho

303367

120/136

10/12/1954

Bannock County Land

Mary A and Marinus M Bush

146553

62/267

08/31/1929

Pocatello Pole Yard

Varsity Square, LLC

21003188

 

2-26-2010

 

 


 


 

 

EXHIBIT B

 

 

BEAR LAKE COUNTY, IDAHO

 

[No fee lands currently listed]

 

 


 


 

 

EXHIBIT B

 

 

BINGHAM COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

20593

23/228

8-14-1916

Blackfoot Office

H.F. and Eunice Van Atta

66806

 

5-4-1959

Haven Substation

Darwin I. and Pearl Young

212368

 

5-18-1976

Aiken Substation

Dean Adams and Leda Larue Adams

218916

 

12-1-1976

American Potato Substation

Basic American Foods

303215

 

3-17-1983

Crater Substation

Clifford and Glory C. Wride

11747

 

4-23-1955

Rockford Substation

Harry and Hannah Katseanes

21690

 

7-6-1951

Lava Substation

J R and Ida Saunders

46519

92/137

6-13-1956

Goshen Substation

Lloyd V. and Sarah C. Frandsen

33603

 

12-11-1953

Morgans Pasture Substation

Clifford and Leona T. Morris

80412

108/27

3-4-1961

Taber Substation

Raymond J. and Eva H. Harker

51088

 

12-24-1956

Hulen Substation

C.L. and Veta B. Ashley

35935

87/38

5-6-1954

Hulen Substation

C.L. and Veta B. Ashley

38029

88/100

9-17-1954

Kramer Substation

Jessie E. Nelson, et al

205226

 

10-10-1975

Fort Hall Substation

Don C. and Salome S. Brown

20073

61/293

2-4-1939

Aberdeen Substation

Aberdeen Townsite and Investment Company

 

27/605

9-14-1916

Pingree Substation

Grace A. Moody

45107

91/223

11-15-1955

Blackfoot Substation

Charlotte G. Monk

51894

76/75

5-1-1946

Pioneer Regulator Station

Penick & Ford, Limited, a Delaware corporation

404765

 

2-28-1992

Thomas Voltage Regulator

Kenneth Eugene and Violet Elizabeth Simon

178617

 

3-14-1973

Bingham County Lands

Koch Agriculture Company

459347

 

11-14-1997

Bingham County Lands

Lizzie Novostas Pokibro, et al

40731

 

1-26-1954

Sterling Substation

Bingham County, Idaho

599746

 

10-14-2008

 

 


 


 

 

EXHIBIT B

 

 

BLAINE COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Elkhorn Substation

Elkhorn at Sun Valley

147459

 

1-4-1973

Hailey Substation

Vern R. and Dorothy Davis

93972

158/488

7-15-1948

Ketchum Substation

Union Pacific Railroad Co.

116799

176/322

4-18-1962

Hailey Substation

Julio and Maria Astorquia

116657

176/281

3-9-1962

Moonstone Substation

Harvey D. and Hollis H. Bothoff

173555

 

5-16-1977

Moonstone Substation

Orie S. and Frieda Leavell

173556

 

5-16-1977

Picabo Substation

Kilpatrick Brothers Co.

105936

166/373

5-11-1955

Hailey Storage Yard

City of Hailey/vacation

298177

 

12-19-1988

Silver Substation

Anna Elora Broadie

208666

 

11-10-1980

Wood River Substation

John E. and Margaret Jean Evans

117200

176/386

7-30-1962

Wood River Substation

Anton A. and Liselotte Bodner

152064

 

11-9-1973

Blaine County Lands

Ralph W. and Dorothy V. Price

538106

 

8-2-2006

Bellevue Employee Housing

Cary R. and Tammie L. Darling

572982

 

12-2-2009

 

 


 


 

 

EXHIBIT B

 

 

BOISE COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

24824

41/275

8-15-1916

Horseshoe Bend Substation

Clayton and Rachel Watson

69848

 

1-27-1965

 

 


 


 

 

EXHIBIT B

 

 

BONNEVILLE COUNTY, IDAHO

 

[No fee lands currently listed]

 

 


 


 

 

EXHIBIT B

 

 

BUTTE COUNTY, IDAHO

 

[No fee lands currently listed]

 

 


 


 

 

EXHIBIT B

 

 

CAMAS COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Prairie Power Office/Shop

Prairie Power Cooperative, Inc.

67423

 

7-24-1992

Corral Substation

 

 

 

 

Camas Substation

 

 

 

 

Fairfield Substation

William F. and Opal L. Stewart

45093

23/67

12-6-1978

 

 


 


 

 

EXHIBIT B

 

 

CANYON COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

75128

75/150

8-14-1916

Canyon Operation Center

Antone and Fotula Chacartegui

8429643

 

12-17-1984

Canyon Operation Center

Antone and Fotula Chacartegui

8429643

 

12-17-1984

Canyon Operation Center

Antone and Fotula Chacartegui

8429643

 

12-17-1984

Canyon Operation Center

Antone and Fotula Chacartegui

8429643

 

12-17-1984

Linden Substation

Caldwell Unlimited, Inc.

604004

 

12-29-1967

Caldwell Substation

Tsutano Tamura

600938

 

10-13-1967

Chestnut Substation

Ernest and Onie Baker

 

139/415

3-16-1940

Willis Substation

Jerry L. and Gay Payne

200521482

 

4-21-2005

Melba Substation

Ralph and Linda Gant

200414670

 

3-18-2004

Mid-Rose Substation

J. Ramon and Marilyn Yorgason

200246256

 

10-1-2002

Hill Substation

Clifford C. and Clara Adamson

8918970

 

10-11-1989

Zilog Substation

Zilog Inc.

9123365

 

11-24-2001

Vallivue Substation

Joy E. Torrey

200018997

 

5-31-2000

Nampa Substation

City of Nampa

200451284

 

9-14-2004

Nampa Substation

George H. and Lulu B. Petersen

 

180/135

5-19-1948

Nampa Substation

Thelma L. Miller

2004-29365

 

6-1-2004

Karcher Substation

Micron Electronics, Inc.

9734578

 

10-14-1997

Melba Substation

Herman and Mable McBirnery

 

137/301

3-24-1939

Lansing Substation

Oscar L. and Eldora Aldrich

416716

 

12-13-1954

Ware Substation

Carl E. and Blanche Nicholson

530929

 

3-27-1963

Simplot Substation

Simplot Industries, Inc.

635403

 

11-19-1969

Cherry Lane Substation

Debby Brunel

200427369

 

5-21-2004

Gem Substation

Cecil and Mary McClintick

514164

 

3-9-1962

Bowmont Substation

State of Idaho

535756

 

6-27-1963

Happy Valley Substation

Schulerland Farms, Inc.

200449393

 

9-2-2004

Huston Substation

Elizabeth Norris

589010

 

12-15-1966

Homedale Substation

Barbara Boehner

347000

 

2-18-1949

Wilder Substation

SSI Food Services, Inc.

9218652

 

8-18-1992

Canyon County Lands

Highland Addition, Inc.

577653

 

2-23-1966

Canyon County Lands

Highland Add. Inc.

326340

 

7-12-1947

Canyon County Lands

Condemnation

 

16/208

1-9-1936

Canyon County Lands

White Sage Farms

535755

 

6-27-1963

Canyon County Lands

Dan T. and Beverly I. Morris

8406888

 

3-23-1984

Canyon County Lands

Highland Add. Inc.

326340

 

7-14-1947

Melba Substation

Rick Morino, et al

2007-078050

 

11-30-2007

Melba Substation

Ralph and Linda Gant

2004-14670

 

3-18-2004

Wagner Substation

James E. and Lexann Warren

2005-72243

 

10-31-2005

Star Operation Center

Can-Ada Properties, LLC

2007-073827

 

11-6-2007

Ward Substation

Paul and Harriet Calverley

2007-070884

 

10-23-2007

Star Operation Center

Dallas B. and Karen Hess

2007-072952

 

11-1-2007

Star Operation Center

Dallas B. and Karen Hess

2007-060550

 

8-31-2007

 

 


 


 

 

EXHIBIT B

 

 

CARIBOU COUNTY, IDAHO

 

[No fee lands currently listed]

 

 


 


 

 

EXHIBIT B

 

 

CASSIA COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

25035

21-119

8-14-1916

Burley Rural Substation

Harold and Lillian Holmes

206211

Book 62

4-25-1960

Kenyon Substation

Roland B. and Madge M. Smith

174410

56/375

1-12-1952

Island Substation

Eugene and Mary Ann Layton

188747

60/335

1-27-1956

Oakley Substation

Cooperative Security Corporation

27707

Film No. 38

1-7-1966

 

 


 


 

 

EXHIBIT B

 

 

CLARK COUNTY, IDAHO

 

[No fee lands currently listed]

 

 


 


 

 

EXHIBIT B

 

 

ELMORE COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

21043

21/473

8-15-1916

Danskin Power Plant

J.R. Simplot Company

329471

 

6-27-2001

Rattle Snake Substation

Raymond G. and Bertha Ann Knudson

356752

 

5-21-2004

Mayfield Transmission Station

Joseph Richard Cornell

203586

 

7-30-1981

Mayfield Transmission Station

E. Jean McDowell, et al

201433

 

4-3-1981

Bennett Substation

Frank S. and Gwendolyn R. Galey

185220

 

12-19-1978

Little Substation

Samuel M. John, et al

163054

60/96

5-16-1975

Elmore Switching Station

Orville C. Colthorp, et al

99934

51/471

4-14-1959

Glenns Ferry Substation

Wm. A. and Elizabeth Duncan

58084

27/374

9-27-1937

Glenns Ferry Substation

Elmore County, Idaho

58319

27/396

11-5-1937

Glenns Ferry Substation

Union Pacific Railroad

299045

 

2-25-1997

Mountain Home Substation

F.W. Bennett, et al

74046

49/276

1-4-1947

Orchard Substation

Ray E. and Olive Anne Brown Stewart

220157

 

1-9-1984

C.J. Strike Hydro Project

F.W. Bennett and Son, Inc.

167017

 

2-25-1976

C.J. Strike Hydro Project

Reuel L. and Erma M. Morton

81206

30/538

12-23-1950

C.J. Strike Hydro Project

Reuel L. and Erma M. Morton

80576

30/503

8-11-1950

C.J. Strike Hydro Project

Myrtle R. Mathis

83625

31/57

3-27-1952

C.J. Strike Hydro Project

John H. and Marion Rose Mathis

83626

31/58

3-27-1952

C.J. Strike Hydro Project

Reuel L. Morton, et al

83011

31/15

11-30-1951

C.J. Strike Hydro Project

H. Stuart Reecy and J.B. Penard

82742

50/634

9-28-1951

C.J. Strike Hydro Project

E.L. Stevens and Byron Stevens

82452

30/634

7-30-1951

C.J. Strike Hydro Project

Idaho First National Bank

82242

30/624

6-28-1951

C.J. Strike Hydro Project

E.L. Stevens and Byron Stevens

85326

43/183

7-29-1952

C.J. Strike Hydro Project

E.L. Stevens and Byron Stevens

85325

43/181

7-29-1952

C.J. Strike Hydro Project

E.L. Stevens and Byron Stevens

84332

51/60

7-29-1952

C.J. Strike Hydro Project

Clyde E. Summers

82305

50/584

7-6-1951

C.J. Strike Hydro Project

Victor and Maria Aguirre

81382

50/469

1-25-1951

C.J. Strike Hydro Project

R.H. Bennett, et al

83292

31/40

1-26-1952

C.J. Strike Hydro Project

John and Frances Cobb

80727

50/390

9-16-1950

C.J. Strike Hydro Project

Mildred R. Cossey

81948

50/540

5-11-1951

C.J. Strike Hydro Project

Oscar and Olga Mannon

82163

51/16

6-19-1951

C.J. Strike Hydro Project

W.B. and Bessie Gilmore

82162

30/613

6-19-1951

Dike Project

John C. and Jessie M. Sanborn

83090

52/14

12-19-1951

Dike Hydro Lands

Henry A. and Fay Pruett

83738

52/79

4-16-1952

 

 

 


 


 

 

EXHIBIT B

 

 

GEM COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

1570

1/471

8-15-1916

Crane Creek Substation

Walter A. and Iva H. Howard

75439

38/91

8-16-1957

Emmett Substation

Travis E. and Mary L. Keller

123857

 

4-24-1978

Emmett Substation

Denver and Eunice E. Hendrix

123495

 

3-20-1978

Emmett Substation

Frank H. Meyer, et al

41532

49/580

10-10-1911

Emmett Service Center

City Transfer Redi-Mix

147920

 

7-27-1984

Shellrock Substation

MacGregor Land and Livestock

141293

 

9-17-1982

Ola Substation

Sumner and Georgia E. Holbrook

79042

39/225

8-26-1959

Substation Land

David and Geraldine L. Little

103808

 

1-28-1972

Emmett Junction Land

William T. and Margaret Peterson

55840

30/614

10-24-1946

Switching Station Road

Paul W. and Opal M. Abrell

107254

 

3-8-1973

 

 


 


 

 

EXHIBIT B

 

 

GOODING COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

8082

3/26

8-14-1916

Gooding Office Building

Edwin E. and Ruth N. Adams, via Deed of Reconveyance

134193

 

10-24-1988

Gooding Warehouse

Diana R. Ibarra

152026

 

3-19-93

Dale Substation

Willis and Iona Anderson

37574

 

11-4-1971

Gooding Substation

Clarence and Grace A. Wells

25314

 

5-15-1968

Orchard Substation

Norvall and Iris Coffman

129336

47/412

2-9-1956

Toponis Substation

Western Farms, Inc.

61646

 

10-22-1976

Lower Malad Hydro Project

Jesse F. and Sada E. Ruddles

98503

40/44

11-7-1946

Lower Malad Hydro Project

Dororthy Frost, et al

99231

40/101

1-7-1947

Lower Malad Hydro Project

Fred and Nettie M. Leach

99408

39/462

1-18-1947

Upper Malad Hydro Project

James E. Sutton

67805

26/367

6-1-1937

A.J. Wiley Hydro Project

Andrew A. and Helen B. Colvin

121858

45/609

8-1-1953

A.J. Wiley Hydro Project

David C. and Martha I. Lipe

121151

42/338

4-22-1953

Upper Salmon Hydro Project

Northern Pacific Railway Company

29175

17/85

1-10-1922

Lower Salmon Hydro Project

Patsy Dunn

133987

 

11-8-1995

Clear Lakes Power Plant

Otis E. and Mary E. Syster

44023

6/510

8-30-1927

Clear Lakes Power Plant

First Security Trust Company

65358

28/186

8-14-1936

Briggs Springs

W.W. and Florence Shepherd Staplin

64441

28/105

4-27-1936

Bliss Microwave Site

James M. and Susan Victor

183241

 

11-8-1999

Thousand Springs Lands

The Nature Conservancy

141048

 

5-22-1990

Bliss Park

Kast C.K. Cattle Co., Inc.

165612

 

5-22-1996

Relish Whitewater Access

N. Stanley and Loretta Standal

214150

 

12-8-2005

 

 


 


 

 

EXHIBIT B

 

 

IDAHO COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Oxbow Fish Hatchery

William and Margaret Roakey

218121

102/308

1-8-1965

Oxbow Fish Hatchery

John H. and Pearl E. Carrey

214400

100/220

1-10-1964

Oxbow Fish Hatchery

Circle C Ranch, Inc.

214401

100/223

1-10-1964

 

 


 


 

 

EXHIBIT B

 

 

JEFFERSON COUNTY, IDAHO

 

[No fee lands currently listed]

 

 

 

 

 

 

 

 

 


 


JEROME COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Perrine Substation

J.E. Doughty, et al

138682

163/465

3-21-1959

Jerome Substation

Union Pacific Railroad Company

71651

11/310

12-3-1938

Midpoint Substation

Northeast Farm Company, Inc.

234304

 

6-13-1978

Midpoint Substation

Northeast Farm Company, Inc.

160760

177/270

9-24-1964

Notch Butte Substation

William Reuben, et al

119461

149/176

6-5-1953

Hazelton Substation

Seneber S. and Victoria A. Brooks

25635

46/379

10-21-1924

Wilson Butte Substation

Max and Josephine Durk

119442

149/173

6-4-1953

Hunt Substation

E.J. and Josie G. Davidson

161913

177/391

1-11-1965

Flat Top Substation

Alloys and Alice E. Hoff

174563

182/780

1-3-1968

Hydra Substation

Vernon W. and Goldie Ahrens

220798

197/3051

9-25-1976

Tupperware Substation

Dart Industries, Inc.

195469

182/3071

7-10-1972

Shoshone Falls Hydro Project

Fredrick J. and Martha Stone Adams

40195

96/315

3-2-1929

Jerome County Lands

Twin Falls North Side Investment Company, Limited

11012

39/635

7-15-1909

Jerome County Lands

United States

923734

 

10-26-1992

Jerome County Lands

Emil Ehlers

110197

141/297

8-23-1950

Hunt Transmission Line Lands

United States Agriculture Farmers Home Administration

236959

 

10-23-1978

 

 


 


 

 

EXHIBIT B

 

 

LEMHI COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Pahsimeroi Hatchery

Delmar and Elsie M. Coiner

105879

 

1-17-1967

Pahsimeroi Hatchery

Sherman F. Furey, et al

107572

 

11-21-1967

Pahsimeroi Hatchery

Harold and Francis V. Sweeney

107480

 

11-2-1967

Tendoy Substation

Velma Mahaffey, et al

210376

 

5-24-1991

Tendoy Substation

Rex C. and Mary L. Andrews

116207

 

11-23-1970

Salmon Office

Lloyd Shaw Post No 67 Inc, The American Legion

136029

 

3-30-1977

Lemhi County Land

L. Dean Peterson

267278

 

5-6-2006

 

 


 


 

 

EXHIBIT B

 

 

LINCOLN COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

39354

25/635

8-14-1916

Dietrich Substation

Virgil F. Heiken, et al

112681

 

4-24-1962

Lincoln Substation

Donald Riley

156792

 

3-5-1993

Lincoln  Substation

Nina Riley

156793

 

3-5-1993

Lincoln  Substation

Blaine K. and Lisa M. Hubsmith

156795

 

3-5-1993

Richfield Substation

Clifford and Ethel Connor

101894

44/625

8-19-1954

Shoshone Substation

Dora Johnson

54921

32/71

3-19-1921

Shoshone Substation

Paul S. and Margaret B. Haddock

54922

22/348

3-19-1921

Shoshone Substation

Lincoln County, Idaho

78397

38/486

3-12-1940

Shoshone Substation

Billie J. and Minnie M. Anderson

128413

 

2-4-1974

Shoshone Storage Yard

City of Shoshone

152998

 

4-6-1989

 

 


 


 

 

EXHIBIT B

 

 

MINIDOKA COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

10294

6/101

8-14-1916

Mini Cassia Operation Center

Knudsen Leasing Company

416457

 

1-6-1995

Julion Substation

Fred L. and Mary Wilson

119616

35/380

2-2-1955

Paul Substation

Norman C. Larson, et al

124634

36/143

7-6-1956

Heyburn Tap

Richard L. and LaVon W. Finlinson

182179

 

2-3-1966

Heyburn Tap

Richard L. and LaVon W. Finlinson

182562

 

2-24-1966

Adelaide Substation

Wilbert H. and Velva D. Moller

243331

 

7-9-1974

Duffin Substation

State of Idaho

108566

29/308

7-19-1950

 

 


 


 

 

EXHIBIT B

 

 

ONEIDA COUNTY, IDAHO

 

[No fee lands currently listed]

 

 


 


 

 

EXHIBIT B

 

 

OWYHEE COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

14091

10/512

8-15-1916

Homedale Office

Estate of Manford R. Logan

189994

 

9-8-1986

C.J. Strike Hydro Project

Arthur L. Beach, et al

82187

41/53

2-7-1951

C.J. Strike Hydro Project

Albert L. and Bonnie Black

84245

42/315

1-30-1952

C.J. Strike Hydro Project

Errol F. and Anna G. Black

87932

44/407

12/11/1953

C.J. Strike Hydro Project

Errol F. and Anna G. Black

87931

44/405

12-11-1953

C.J. Strike Hydro Project

Walton and Dorothy Cahalan

84227

42/294

1-25-1952

C.J. Strike Hydro Project

John R. Carter

82605

41/179

4-5-1951

C.J. Strike Hydro Project

Roland J. Hawes, et al

84730

42/491

4-16-1952

C.J. Strike Hydro Project

Justo Erdoisa

84189

42/278

1-18-1952

C.J. Strike Hydro Project

Justo Erdoisa

84289

42/335

2-6-1952

C.J. Strike Hydro Project

William H. Frizzle

82211

41/61

2-9-1951

C.J. Strike Hydro Project

Charles and Esther Simmons

83260

41/420

7-13-1951

C.J. Strike Hydro Project

Rodney A. and Leona S. Hawes

84119

42/225

1-7-1952

C.J. Strike Hydro Project

Fred G. and Elizabeth King

82868

41/267

5-11-1951

C.J. Strike Hydro Project

Ted and Esther Fay King

83324

41/429

7-20-1951

C.J. Strike Hydro Project

J. Gerhard and Nina F. Kohring

84188

42/276

1-18-1952

C.J. Strike Hydro Project

Charles E. Lee

82068

41/11

1-19-1951

C.J. Strike Hydro Project

John E. and Lora E. Noble

83775

42/66

10-26-1951

C.J. Strike Hydro Project

Oris R. and Merle Noble

82504

41/167

3-23-1951

C.J. Strike Hydro Project

Estaugio Ocamica, et al

Case #2358

Condem-nation

1-29-1952

C.J. Strike Hydro Project

M.E. Ridings

82185

41/49

2-7-1951

C.J. Strike Hydro Project

Ruth F. Roark

82186

41/51

2-7-1951

C.J. Strike Hydro Project

Tim L. and Edith Shenk

85209

43/147

7-3-1952

C.J. Strike Hydro Project

Robert and Lois E. Schlechter

82503

41/165

3-23-1951

C.J. Strike Hydro Project

Totorica Co.

85011

43/89

5-28-1952

C.J. Strike Hydro Project

Totorica Co.

82263

41/87

2-15-1951

C.J. Strike Hydro Project

Totorica Co.

88633

45/240

3-8-1954

C.J. Strike Hydro Project

Milford Vaught, et al

Case #2354

Condem-nation

1-29-1952

C.J. Strike Hydro Project

Arthur E. and Ruth F. Bailey

80173

39/388

3-16-1950

C.J. Strike Hydro Project

Howard E. and Agnes B. Waterman

83156

41/389

6-25-1951

C.J. Strike Hydro Project

Roy W. Weatherly

83236

41/412

7-6-1951

Hemingway Substation

Richard and Connie Brandau

266916

 

12-10-2008

Hemingway Substation

Rex Evans

266915

 

12-10-2008

Hemingway Substation

William B. McDonald

267036

 

12-22-2008

Hemingway Substation

Donald Lynn and Crystal Lee Nelson

267038

 

12-22-2008

Hemingway Substation

Cyrus Nathaniel Steffler

267037

 

12-22-2008

C.J. Strike Mitigation Property

Betty L. Turner, et al

259298

 

12-27-2006

 

 


 


 

 

EXHIBIT B

 

 

PAYETTE COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Payette Operation Center

Robert L. Farber

113123

 

2-26-1962

Willow Creek Substation

Adda W. Pense

68880

 

2-17-1948

Langley Gulch Plant

Larry and Loretta Lemons

364867

 

2-4-2010

Langley Gulch Plant

Walter W. Morrow, et al

366286

 

4-30-2010

Langley Gulch Plant

Tom E. Shaw Family Limited Partnership, et al

365184

 

2-24-2010

Payette County Lands

Henggeler Bros., Inc.

366818

 

6-3-2010

Payette County Lands

William and Mary P. Kinney

30301

 

4-28-1932

 

 


 


 

 

EXHIBIT B

 

 

POWER COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

American Falls Warehouse

Loren A. Williams

83210

109/502

03/30/1962

Brady Substation

Joseph and Alta Allec

76223

102/294

12/12/1956

Brady Substation

E. .G and Fannie L Lish

77537

102/472

02/10/1958

Brady Substation

Floyd and Emma L. Batterton

76147

102/277

11/13/1956

Brady Substation

Alonzo Lee and June Bartholomew

76148

102/278

11/13/1956

Brady Substation

Alonzo Lee and June Bartholomew

76148

102/278

11/13/1956

Brady Substation

Floyd and Emma L. Batterton

76147

102/277

11/13/1956

Brady Substation

County of Power, State of Idaho

76226

102/296

12/12/1956

Brady Substation

P. .J and Doris A. Huber

76180

102/287

11/24/1956

Brady Substation

John F. and Mildred Gilson

76149

102/278

11/13/1956

Brady Substation

Alonzo Lee and June Bartholomew

76148

102/278

11/13/1956

Brady Substation

Sophia M. Moore

76150

102/279

11/13/1956

Brady Substation

James R. and Mary Lou Dobel

66975

96/566

12/21/1948

Brady Substation

Falls View Cemetery Maintenance District

76188

102/288

11/28/1956

Don Substation

Food Machinery and Chemical Corporation

72098

99/557

07/28/1953

Deen Substation

Kenneth W and Helen L Marshall

76808

102/369

06/16/1957

Kinport Substation

FMC Corporation

95571

 

01/27/1971

Lamb Substation

Amfac Foods, Inc

102966

 

02/06/1974

Pleasant Valley Substation

Catherine Potter, et al

82896

109/470

01/03/1962

American Falls Hydro Project

Willis W. and Anna Belle Williams

107849

 

04/01/1976

American Falls Hydro Project

J. Marie and David H. Barrett

93547

 

05/17/1969

American Falls Hydro Project

Eldron D. and Idonna J. Thornton

76151

102/280

11/13/1956

American Falls Hydro Project

B. Thomas Morris

76148

102/276

11/13/1956

Power County Lands

John Kulm

75983

102/262

09/22/1956

Power County Lands

William and Betty Phillips, et al

116715

 

02/21/1979

Power County Lands

Lucy M. and L.A. Williams

70888

99/425

04/16/1952

 

 

 


 

 

 

EXHIBIT B

 

 

TWIN FALLS COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

73926

35/438

8-14-1916

Twin Falls Office

Rosa Belle Smith

519509

 

12-3-1962

Twin Falls Office

Maude M. Cartney

519510

 

12-3-1962

Twin Falls Office Parking

Jon H. and Anna N. Hansen

703360

 

10-1-1976

Twin Falls Operation Center

W.W. and Eva K. Thomas

415173

 

12-28-1951

Twin Falls Operation Center

The City of Twin Falls

809379

 

9-9-1981

Twin Falls Operation Center

Heard Roofing and Insulation Company, Inc., et al

592314

 

9-17-1968

Twin Falls Operation Center

The City of Twin Falls

739128

 

6-15-1978

Twin Falls Operation Center

C.W. Silver Company, Inc.

807609

 

8-6-1981

Twin Falls Operation Center

Joe B. and Mary Galan

2005-025923

 

11-15-2005

Twin Falls Operation Center

Jose T. Jasso

2005-025906

 

11-15-2005

Twin Falls Operation Center

Jose T. Jasso

2005-025907

 

11-15-2005

Twin Falls Operation Center

Jose T. Jasso

2008-018383

 

8-15-2008

Twin Falls Operation Center

Campbell Company of Idaho, Inc.

864035

 

7-9-1984

Twin Falls Operation Center

Estate of Hope N. Pufahl

2001-013343

 

7-25-2001

Twin Falls Operation Center

Margaret A. Stobaugh

2007-011787

 

5-16-2007

Twin Falls Operation Center

City of Twin Falls

2007- 006015

 

3-16-2007

Twin Falls Operation Center

Estate of Hope N. Dungan

2001-013343

 

7-25-2001

Twin Falls Substation

Henry and Merna A. Wambolt

540065

 

7-10-1964

Twin Falls Substation

W.W. and Ada E. Nicholson

202264

 

11-19-1927

Twin Falls Substation

Andrew P. and Ingeborg L. Lane

369171

 

3-7-1947

Twin Falls Substation

Roy H. and Dorothy L. Sorenson

511687

 

3-12-1962

Twin Falls Substation

Albert and Elsa Gurski

781016

 

4-15-1980

Twin Falls Substation

Anna L. Baker

585658

 

2-21-1968

Buhl Substation

Lawson E. and Pearl Jane Roberts

540862

 

8-4-1964

Buhl Substation

Investors Corporation

83873

 

5-11-1917

Buhl Substation

Buhl Townsite Company Limited

49298

 

5-4-1914

Eastgate Substation

Charles B. and Billie F. Park

646760

 

3-2-1973

Eastgate Substation

Ray and Phyllis E. Park

464064

 

6-6-1957

Eastgate Substation

Charles B. and Billie F. Park

646760

 

3-3-1973

Russet Substation

Consolidated Food Corporation

711813

 

3-17-1977

Hansen Butte Substation

Bertha Frahm, et al

432574

 

1-9-1954

Artesian Substation

Otis and Hazel Helsely

416073

 

2-6-1952

Milner Substation

Helen B. Perrine

443228

 

3-5-1955

Filer Substation

Idaho Management Enterprises, Inc.

2005-009856

 

5-10-2005

Milner Hydro Project

Laurena B. Marshall

845950

 

8-26-1983

Milner Hydro Project

Mark E. and Lola B. Moorman

971645

 

6-12-1990

Milner Hydro Project

Frank L. Perrine and Anne P. Brown

1993-014742

 

10-6-1993

Twin Falls Hydro Project

James J. May, et al

1993-001268

 

1-28-1993

Upper Salmon Hydro Project

Chas W. and Lean C. Mack

221879

 

12-6-1929

Upper Salmon Hydro Project

Northern Pacific Railway Company

139578

59/629

12-31-1921

Transmission Line Land

Edgar A. Russell

688880

 

8-6-1974

Transmission Line Land

Yvonne Stevenson

688881

 

8-6-1974

Transmission Line Land

Vergene Russell Gates

688882

 

8-6-1974

Transmission Line Land

Genevieve McCollough

688883

 

8-6-1974

 

 


 

EXHIBIT B

 

VALLEY COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

McCall Office

Brass, Inc.

126747

 

3-28-1983

Long Valley Operations Center

McMaster Real Estate

324768

 

8-31-07

McCall Storage Yard

Brass, Inc.

86164

 

9-16-1975

Cascade Power Plant

Ike J. and Mary M. Wardle

122180

 

8-9-1982

Cascade Power Plant

William D. and Nadeane Hale

122219

 

8-13-1982

Smiths Ferry Substation

Daniel E. and Mildred E. Sutherland

117512

 

12-11-1981

Boulder Substation

Duane B. and Alberta Mae Smith

259877

 

1-22-2002

McCall Substation

Neal and Pearl N. Boydstun

 

175/123

6-6-1950

Donnelly Substation

Henry and Betty L. Nortune

88850

 

8-4-1976

Valley County Lands

Union Pacific Railroad Company

145413

 

12-6-1985

 

 


 


 

 

EXHIBIT B

 

 

WASHINGTON COUNTY, IDAHO

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Cambridge Warehouse

Leo C. and Jennifer R. Braun

129402

 

03/02/1983

Cambridge Substation

Fred and Fern Bain

69375

 

08/31/1946

Midvale Substation

Robert H. and Ida Mae Graham

94616

 

04/10/1970

Cambridge Substation

Bill E. and Zola A. Noah

188451

 

01/27/2003

Hells Canyon Hydro Project

Roy and Helen McMullen

85094

 

05/11/1960

Hells Canyon Hydro Project

Edward M. and Esther Randall

81415

 

06/16/1956

Hells Canyon Hydro Project

Oliver S. and Annie Pearl Mason

81849

 

12/08/1956

Hells Canyon Hydro Project

Carl C. Morton

85317

 

08/23/1960

Hells Canyon Hydro Project

Edward M. and Esther Randall

81415

 

06/16/1956

Hells Canyon Hydro Project

Charles S. and Esther Smith

82155

 

04/19/1957

Hells Canyon Hydro Project

Ben C. and Myrtle M Rutledge

70333

 

03/21/1947

Hells Canyon Hydro Project

Alvie C. Bell

82212

 

05/07/1957

Hells Canyon Hydro Project

Roy and Helen McMullen

82154

 

04/19/1957

Hells Canyon Hydro Project

Roy and Helen McMullen

82156

 

04/19/1957

Hells Canyon Hydro Project

J. C. and Kathryn C Wray

82157

 

04/19/1957

Hells Canyon Hydro Project

John and Elizabeth Stringer

83184

 

03/27/1958

Hells Canyon Hydro Project

Charles S. and Esther Smith

82153

 

04/19/1957

Hells Canyon Hydro Project

Arthur F. and Lois A. Robertson

81438

 

06/28/1956

Hells Canyon Hydro Project

Henry and Edurne Gabiola

81266

 

03/31/1956

Hells Canyon Hydro Project

Ray and Frances Carrithers, et al

 

6/273

10/15/1957

Hells Canyon Hydro Project

Clara P. Cole

81727

 

10/16/1956

Hells Canyon Hydro Project

George B. and Irma B. Perkins

81728

 

10/16/1956

Hells Canyon Hydro Project

Albert W. and Grace L. Campbell

80703

 

10/19/1955

Hells Canyon Hydro Project

Hugh and Opal Beggs

81212

 

04/19/1956

Steck Park

L. E. and Verna Emerson

82005

 

02/09/1957

Steck Park

Kenneth and Mabel Steck

84422

 

07/16/1959

West Cove Creek

Arthur F. and Lois A. Robertson

81437

 

06/20/1956

Cottonwood Creek

Lawrence Ranch Inc

199696

 

12/22/2005

Cottonwood Creek

Clint Lawrence

199697

 

12/22/2005

Soulen Ranch

Soulen Livestock Company

203752

 

12-5-2006

Soulen Ranch

Soulen Livestock Company

203753

 

12-5-2006

 

 


 

 

 

EXHIBIT B

 

 

BAKER COUNTY, OREGON

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

36466

85/148

8-14-1916

Durkee Substation

Sammy C. and Elizabeth B. Cordell

35342

89 32/086

8-10-1989

Durkee Substation

Eastern Oregon Development Company

52375

108/389

8-11-1927

Huntington Substation

Baker County, Oregon

47363

105/674

10-22-1954

Huntington Substation

Harriet A. Degel

69397

115-539

6-15-1931

Huntington Substation

Gertrude Alice Lee, et al

58891

111/447

12-18-1928

Huntington Substation

Baker County, Oregon

58893

111/451

12-18-1928

Quartz Substation

Susie Iva Geyer Gillingham

50505

164/358

5-25-1955

Unity Substation

Lincoln Morgan

35852

159/456

8-21-1952

Halfway Substation

Margherita DelCurto

63620

167/287

8-19-1957

Durkee-Baker 66 kV line

California-Pacific Utilities Company

11097

139/596

7-5-1946

Hunting-Baker 69-kV line

Baker County, Oregon

19352

151/535

11-2-1949

Baker County Lands

S & F Forwarding Company

7688

89/57

10-8-1918

Baker County Lands

James E. and Eva E. Robinette

61584

112/492

7-11-1929

Baker County Lands

James E. and Eva E. Robinette

38812

102/240

10-11-1924

Baker County Lands

James E. and Eva E. Robinette

7832

89/82

10-22-1918

Fish Weir - Mitigation

Michelle B. Wentworth Trust

03500176B

 

12-15-2003

Baker Mitigation Property

Richard A. Murray

08520297B

 

12-30-2008

Daly Creek Ranch - Mitigation

Daly Creek Ranch, LLC

05520120B

 

12-27-2005

Daly Creek Ranch - Mitigation

Daly Creek Ranch, LLC

05520130B

 

12-27-2005

Hells Canyon Hydro Project

Anna Adams

18053

67 05/029

1-31-1967

Hells Canyon Hydro Project

George and Lillian Aklin

72754

169/317

4-24-1959

Hells Canyon Hydro Project

Walter G. and Anna Clark

72755

169/318

4-24-1959

Hells Canyon Hydro Project

William and Sue Menze

72757

169/320

4-24-1959

Hells Canyon Hydro Project

Alice and Emmett Holt

72756

169/319

4-24-1959

Hells Canyon Hydro Project

Tom Buchanan, et al

92930

173/527

2-13-1963

Hells Canyon Hydro Project

L.G. and Flossie W. Burnap

9364

66 48/047

12-1-1966

Hells Canyon Hydro Project

Lee and Flossie W. Burnap

98062

174/385

2-13-1964

Hells Canyon Hydro Project

Dan R. and Vi Cole

94452

173/1047

6-10-1963

Hells Canyon Hydro Project

Dan R. and Vi Cole

94453

173/1048

6-10-1963

Hells Canyon Hydro Project

Dan R. and Violet J. Cole

16939

67 16/013

4-17-1967

Hells Canyon Hydro Project

Chet and Florence Evans

86499

172/267

11-15-1961

Hells Canyon Hydro Project

Ralph E. and Helen Gale

69945

67 04/009

1-23-1967

Hells Canyon Hydro Project

Betty Hanson, et al Hanson

63069

65 33/016

8-18-1965

Hells Canyon Hydro Project

Ben and LaLun Higashi

74594

169/1057

8-11-1959

Hells Canyon Hydro Project

William and Lena Hogg

62788

167/64

6-28-1957

Hells Canyon Hydro Project

Mervin Alvin Jahns, et al

65370

167/831

12-12-1957

Hells Canyon Hydro Project

Robert H. and Myrtle M. Jahns

65371

167/832

12-12-1957

Hells Canyon Hydro Project

J.W. and Mable C. Knox

63929

167/384

9-6-1957

Hells Canyon Hydro Project

Mona and E.R. Lanning

15610

68 14/011

4-1-1968

Hells Canyon Hydro Project

J.H. and Cora M. Maurer

61689

65 19/007

5-10-1965

Hells Canyon Hydro Project

Irving and Helen Biggs Rand

10237

67 07/008

2-14-1967

Hells Canyon Hydro Project

John L. and Virginia Rand

10238

67 07/010

2-14-1967

Hells Canyon Hydro Project

Amos E. and Bernice Robinette

9289

66 47/067

11-25-1966

Hells Canyon Hydro Project

Roman Catholic Bishop of the Diocese of Baker

1364

65 15/077

4-16-1965

Hells Canyon Hydro Project

Clayton Robbins

87791

172/655

2-14-1962

Hells Canyon Hydro Project

Helen Gerdes, et al

16868

150/515

6-13-1949

Hells Canyon Hydro Project

Henry E. Smith

99730

174/893

6-24-1964

Hells Canyon Hydro Project

Earl and Billee Thompson

99128

174/683

5-5-1964

Hells Canyon Hydro Project

Hazel Vrba

01438

65 16/048

4-22-1965

Hells Canyon Hydro Project

Elizabeth Allstead

79417

170/1107

7-6-1966

Hells Canyon Hydro Project

George S. and Doris M. Degitz

53942

165/86

12-8-1955

Hells Canyon Hydro Project

George S. and Doris M. Degitz

99734

174/892

6-24-1964

Hells Canyon Hydro Project

Baker County, Oregon

71588

168/1354

2-13-1959

Hells Canyon Hydro Project

Baker County, Oregon

71589

168/1356

2-13-1959

Hells Canyon Hydro Project

Baker County, Oregon

71591

168/1361

2-13-1959

Hells Canyon Hydro Project

Jack B. Dennis

74918

169/1164

8-31-1959

Hells Canyon Hydro Project

Norvil M. and Bessie P. Greener

57953

165/1368

8-15-1956

Hells Canyon Hydro Project

Norvil M. and Bessie P. Greener

57954

165/1369

8-15-1956

Hells Canyon Hydro Project

William and Sue Menze

57523

165/1221

7-18-1956

Hells Canyon Hydro Project

Emmett and Alice Holt

57524

165/1222

7-18-1956

Hells Canyon Hydro Project

George and Lillian V. Aklin

57525

165/1223

7-18-1956

Hells Canyon Hydro Project

Walter G. and Anna Clark

57526

165/1224

7-18-1956

Hells Canyon Hydro Project

Walter G. and Anna Clark

69986

168/880

10-29-1958

Hells Canyon Hydro Project

Emmett and Alice Holt

69987

168/881

10-29-1958

Hells Canyon Hydro Project

William and Sue Menze

69988

168/882

10-29-1958

Hells Canyon Hydro Project

George and Lillian V. Aklin

69989

168/883

10-29-1958

Hells Canyon Hydro Project

Genevieve Maley

64721

167/587

11-4-1957

Hells Canyon Hydro Project

Baker County, Oregon

34509

71 39/010

9-27-1971

Hells Canyon Hydro Project

O.D and Lena Pierce

53943

165/88

12-8-1955

Hells Canyon Hydro Project

Baker County School District No. 61

42317

72 51/049

12-21-1972

Hells Canyon Hydro Project

Anson E.and Ohlia A. Powell

71014

168/1182

1-6-1959

Hells Canyon Hydro Project

Henry Will

62295

166/1340

5-29-1957

Hells Canyon Hydro Project

Dan L. and Blanche Forsea

67720

168/153

5-26-1958

Hells Canyon Hydro Project

Dan L. Forsea, et al

68244

168/309

6-27-1958

Hells Canyon Hydro Project

Oregon-Washington Railroad & Navigation Company

69735

168/794

10-10-1958

Hells Canyon Hydro Project

Baker County, Oregon

68447

168/354

7-3-1958

Hells Canyon Hydro Project

Ellis and Blanche Allen

70744

168/1125

12-15-1958

Hells Canyon Hydro Project

Edward and Alma Allen

71321

168-1253

1-28-1959

Hells Canyon Hydro Project

John L. and Velma R. Allen

56119

5-3-1956

165/813

Hells Canyon Hydro Project

John L. and Velma R. Allen

56120

165/815

5-3-1956

Hells Canyon Hydro Project

John L. and Velma R. Allen

77644

170/496

2-29-1960

Hells Canyon Hydro Project

Charles Arthur

56349

165/883

5-21-1956

Hells Canyon Hydro Project

Theodore R. and Winnifred A. Avery

66740

167/1263

3-24-1958

Hells Canyon Hydro Project

Baker County, Oregon

84325

171/1088

6-30-1961

Hells Canyon Hydro Project

Baker County, Oregon

68977

168/541

8-11-1958

Hells Canyon Hydro Project

Baker County School District No. 23

69580

168/754

9-29-1958

Hells Canyon Hydro Project

Baker County School District No. 23

69579

168/752

9-29-1958

Hells Canyon Hydro Project

Baker County School District No. 23

69578

168/749

9-29-1958

Hells Canyon Hydro Project

Baker County School District No. 23

69581

168/756

9-29-1958

Hells Canyon Hydro Project

Gertrude Baker

65433

167/860

12-17-1957

Hells Canyon Hydro Project

Gertrude Baker

67826

168/171

5-26-1958

Hells Canyon Hydro Project

Bert Basche

68560

168/387

7-11-1958

Hells Canyon Hydro Project

Peter and Ernestine Basche

62406

166/393

6-7-1957

Hells Canyon Hydro Project

Pete F. and Ernestine Basche

64848

167/650

11-12-1957

Hells Canyon Hydro Project

Mary D. Bastian

61936

166/1185

5-8-1957

Hells Canyon Hydro Project

Claus P. and Alveda M. Sass

70488

168/1037

11-25-1958

Hells Canyon Hydro Project

Elma V. and Gilbert H. Beck

70490

168/1043

11-25-1958

Hells Canyon Hydro Project

Gilmer L. and Marjorie J. Hankins

70491

168/1048

11-25-1958

Hells Canyon Hydro Project

Elma V. and Gilbert H. Beck

70489

168/1042

11-25-1958

Hells Canyon Hydro Project

Leon E. and Ruby O. Bendixen

77645

170/498

2-29-1960

Hells Canyon Hydro Project

Leroy and Leslie Smelcer

12640

140/248

9-3-1946

Hells Canyon Hydro Project

George A. and Florence Ludiker

64301

167/484

10-1-1957

Hells Canyon Hydro Project

Roy E. and Wanda E. Bendixen

65045

167/705

11-25-1957

Hells Canyon Hydro Project

Nora Benson

58973

166/302

8-11-56

Hells Canyon Hydro Project

Bestwall Gypsum Company

62147

166/1288

5-22-1957

Hells Canyon Hydro Project

Bestwall Gypsum Company

80071

170/1329

8-23-1960

Hells Canyon Hydro Project

Willard F. and Neva V. Bisom

9550

146/334

3-17-1948

Hells Canyon Hydro Project

Willard F. and Neva V. Bisom

60576

166/755

2-11-1957

Hells Canyon Hydro Project

Ray J. and Elizabeth A. Blevins

60551

166/749

2-7-1957

Hells Canyon Hydro Project

Elmer V. and Jennie M. Boyer

61937

166/1186

5-8-1957

Hells Canyon Hydro Project

Sam V. and Hazel Buxton

65754

167/947

1-3-1958

Hells Canyon Hydro Project

Paul L. and Olga L. Brooks

68705

168/444

7-2-1958

Hells Canyon Hydro Project

Paul L. and Olga L. Brooks

77646

170/500

2-29-1960

Hells Canyon Hydro Project

Robert Buchanan

77647

170/503

2-29-1960

Hells Canyon Hydro Project

Robert Buchanan

77648

170/505

2-29-1960

Hells Canyon Hydro Project

Frank Butchart, et al

66992

167/1357

4-7-1958

Hells Canyon Hydro Project

Frank Butchart, et al

66993

167/1359

4-7-1958

Hells Canyon Hydro Project

Albert W. and Grace L. Campbell

77649

170/508

2-29-1960

Hells Canyon Hydro Project

John L. and Velma R. Allen

55386

185/574

3-16-1956

Hells Canyon Hydro Project

Ray C. and Frances Carrithers

64843

167/641

11-12-1957

Hells Canyon Hydro Project

Doris Krueger, et al

65563

167/881

12-26-1957

Hells Canyon Hydro Project

John T. and Josephine V. Coats

68701

168/433

7-21-1958

Hells Canyon Hydro Project

John T. and Josephine V. Coats

68702

168/435

7-21-1958

Hells Canyon Hydro Project

Cornucopia Gold Mines

59728

166/516

12/10/1956

Hells Canyon Hydro Project

F.L. and Eathel Coulter

59416

166/431

11-23-1956

Hells Canyon Hydro Project

Albert L. and Jessie Cummings

58287

166/118

9-10-1956

Hells Canyon Hydro Project

Mary Davis

65203

167/780

12-2-1957

Hells Canyon Hydro Project

Mary Davis

68703

168/438

7-21-1958

Hells Canyon Hydro Project

George S. and Doris M. Degitz

77650

170/510

2-29-1960

Hells Canyon Hydro Project

Eagle Valley School District No. 44

62488

166/1424

6-13-1957

Hells Canyon Hydro Project

Ellingson Lumber Company

78831

170/873

5-23-1960

Hells Canyon Hydro Project

Carolyn Morris, et al

62480

166-1420

6-13-1957

Hells Canyon Hydro Project

Ben and Mabel Dunleavy

77219

170/362

2-1-1960

Hells Canyon Hydro Project

W. Lovell and Velma E. Gover

77651

170/513

2-29-1960

Hells Canyon Hydro Project

Velma E. Gover, et al

88850

172/910

4-30-1962

Hells Canyon Hydro Project

Kenneth H. and Mary Ellen Grant

58974

166/303

10-24-1956

Hells Canyon Hydro Project

E. K. Greener

64845

167/644

11-12-1957

Hells Canyon Hydro Project

E. K. Greener

77652

170/516

2-29-1960

Hells Canyon Hydro Project

Norvil and Bessie Greener

77654

170/526

2-29-1960

Hells Canyon Hydro Project

Norvil and Bessie Greener

77653

170/519

2-29-1960

Hells Canyon Hydro Project

J.J. and Eva Hendrix

77655

170/528

2-29-1960

Hells Canyon Hydro Project

Anna Henggeler

62108

166/1272

3-20-1957

Hells Canyon Hydro Project

LaVerna E. Wallace Hensley

58681

166/220

10-4-1956

Hells Canyon Hydro Project

George N. and Wadean R. Holcomb

72710

169/300

4-22-1959

Hells Canyon Hydro Project

George N. and Wadean R. Holcomb

72711

169/303

4-22-1959

Hells Canyon Hydro Project

George N. and Wadean R. Holcomb

77656

170/531

2-29-1960

Hells Canyon Hydro Project

Raymond C. and Helen H. Holt

77657

170/534

2-29-1960

Hells Canyon Hydro Project

Addaline Hunsaker

65369

167/830

12-12-1957

Hells Canyon Hydro Project

Maude Johnson

58902

166/275

10-19-1956

Hells Canyon Hydro Project

Henry J. Keeney

58903

166/277

10-19-1956

Hells Canyon Hydro Project

Lorval L. and Belle L. Johnson

57630

165/1254

7-26-1956

Hells Canyon Hydro Project

Alberta Kendall

62859

167/074

7/1/1957

Hells Canyon Hydro Project

Joe R. and Frances Kendall

64723

167/591

11-4-1957

Hells Canyon Hydro Project

Lewis and Zelma Laird

63930

167/385

9-6-1957

Hells Canyon Hydro Project

Lewis and Zelma Laird

77658

170/536

2-29-1960

Hells Canyon Hydro Project

W. C. McCall, et al

65935

167/1005

1-27-1958

Hells Canyon Hydro Project

W. C. McCall, et al

68797

168/476

7-28-1958

Hells Canyon Hydro Project

Frank and Edith McDowell

67159

167/1411

4-17-1958

Hells Canyon Hydro Project

W.C. and Marian H. McCall

78764

170/844

5-17-1960

Hells Canyon Hydro Project

W.C. and Marian H. McCall

78765

170/846

5-17-1960

Hells Canyon Hydro Project

W.C. and Marian H. McCall

78766

170/848

5-17-1960

Hells Canyon Hydro Project

W.C. and Marian H. McCall

10098

67 05/068

2-3-1967

Hells Canyon Hydro Project

Byrl E. and Tiz J. Landers

64176

167/451

9-24-1957

Hells Canyon Hydro Project

Byrl E. and Tiz J. Landers

77659

170/538

2-29-1960

Hells Canyon Hydro Project

Percy J. and Aleda Laird

68122

168/284

6-23-1958

Hells Canyon Hydro Project

Elsie Leo Tennant

61940

166/1191

5-8-1957

Hells Canyon Hydro Project

Christine Mary Leo Bartlett

61941

166/1192

5-8-1957

Hells Canyon Hydro Project

Ernest A. and Margery M. Ludiker

63619

167/286

8-19-1957

Hells Canyon Hydro Project

George C. and Velma Mapes

67296

168/020

4-25-1958

Hells Canyon Hydro Project

Nadine Wade Johnson

67298

168/026

4-25-1958

Hells Canyon Hydro Project

Josephine Crowe

67297

168/023

4-25-1958

Hells Canyon Hydro Project

Terrel D. McCormick, et al

61939

166/1189

5-8-1957

Hells Canyon Hydro Project

Franklin R. and Laura J. McKay

59840

166/557

12-17-1956

Hells Canyon Hydro Project

Umberto and Helen Miglioretto

65716

167/937

1-9-1958

Hells Canyon Hydro Project

George G. and Fern D. McKinney

61383

166/973

4-3-1957

Hells Canyon Hydro Project

George G. and Fern D. McKinney

65850

167/985

1-21-1958

Hells Canyon Hydro Project

Adella M. Miller

88851

172/913

4-30-1962

Hells Canyon Hydro Project

Carl E. and Nora Eva Miller

65818

167/972

1-17-1958

Hells Canyon Hydro Project

Carl E. and Nora Eva Miller

65817

167/971

1-17-1958

Hells Canyon Hydro Project

Robinette Forwarding Company

65819

167/973

1-17-1958

Hells Canyon Hydro Project

Ida Miller

56121

165/817

5-3-1956

Hells Canyon Hydro Project

Frans J. Olson

58904

166/278

10-19-1956

Hells Canyon Hydro Project

Oregon Short Line Railroad Company

81070

171/068

10-27-1960

Hells Canyon Hydro Project

Oregon-Washington Railroad & Navigation Company

12593

168/794

8-6-1958

Hells Canyon Hydro Project

Richard W. and Shirley Pex

64720

167/585

11-4-1957

Hells Canyon Hydro Project

Greer W. and Wanda May Pickler

78925

170/902

5-27-1960

Hells Canyon Hydro Project

Dwight E. and Ardyce E. Pline

65014

167/694

11-21-1957

Hells Canyon Hydro Project

M.H. and Esther E. Pline

66360

167/1130

2-25-1958

Hells Canyon Hydro Project

M.H. and Esther E. Pline

68976

168/537

8-11-1958

Hells Canyon Hydro Project

Jeff and Billie Wells Pollard

60552

166/750

2-7-1957

Hells Canyon Hydro Project

Anson E. and   Ohlia A. Powell

66306

167/1114

2-24-1958

Hells Canyon Hydro Project

Anson E. and   Ohlia A. Powell

71014

168/1182

1-6-1959

Hells Canyon Hydro Project

Guy W. and Mabel Ray

55653

165/673

4-5-1956

Hells Canyon Hydro Project

Guy W. and Mabel Ray

55652

165/672

4-5-1956

Hells Canyon Hydro Project

Harold H. Hursh

69990

168/884

10-29-1958

Hells Canyon Hydro Project

Amos D. and Ora E. Robinette

57730

165/1286

8-1-1956

Hells Canyon Hydro Project

Amos D. and Ora E. Robinette

57728

165/1283

8-1-1956

Hells Canyon Hydro Project

Amos D. and Ora E. Robinette

57727

165/1281

8-1-1956

Hells Canyon Hydro Project

John Rouse, et al

71378

168/1282

2-2-1959

Hells Canyon Hydro Project

John Rouse, et al

77694

170/560

3-2-1960

Hells Canyon Hydro Project

Edith and Ray Rynearson

67138

167/1405

4-16-1958

Hells Canyon Hydro Project

Edith and Ray Rynearson

67137

167/1401

4-16-1958

Hells Canyon Hydro Project

Claus P. and Alveda M. Sass

65403

167/836

12-13-1957

Hells Canyon Hydro Project

Catharina Sass, et al

65404

167/838

12-13-1957

Hells Canyon Hydro Project

George and Wilma Schultz

77661

170/544

2-29-1960

Hells Canyon Hydro Project

A.D. Shelvin

67896

168/228

6-5-1958

Hells Canyon Hydro Project

George K. Sjoquist, et al

56934

165/1120

6-22-1956

Hells Canyon Hydro Project

LeRoy Smelcer, et al

66437

167/1151

3-3-1958

Hells Canyon Hydro Project

LeRoy and Leslie Smelcer

77660

170/540

2-29-1960

Hells Canyon Hydro Project

Ernest C. Snyder

59070

166/339

10-31-1956

Hells Canyon Hydro Project

Ernest C. Snyder

69050

168/565

8-15-1958

Hells Canyon Hydro Project

George N. and Hiltho Speropulos

71590

168/1359

2-13-1959

Hells Canyon Hydro Project

Standard Oil Company of California

65044

167/703

11-25-1957

Hells Canyon Hydro Project

Fred G. and Valeria E. Still

60550

166/747

2-7-1952

Hells Canyon Hydro Project

Lawrence R. Smith, et al

92337

173/357

12-31-1962

Hells Canyon Hydro Project

Lawrence R. Smith, et al

92338

173/360

12-31-1962

Hells Canyon Hydro Project

M.D. Stilwell, et al

64722

167/589

11-4-1957

Hells Canyon Hydro Project

Stilwell Pengilly Lumber Co.

64347

167/497

10-4-1957

Hells Canyon Hydro Project

Donald P. Sullivan

67004

170/176

4-7-1958

Hells Canyon Hydro Project

Vincent J. Sullivan, et al

66295

167/1107

2-21-1958

Hells Canyon Hydro Project

Vincent J. Sullivan, et al

69452

168/722

9-18-1958

Hells Canyon Hydro Project

Elvere S. and Allene E. Thompson

64849

167/654

11-12-1957

Hells Canyon Hydro Project

Harvey Thompson and Violet Golick

77693

170/557

3-2-1960

Hells Canyon Hydro Project

Morris and Myrtle Wills

64846

167/646

11-12-1957

Hells Canyon Hydro Project

N. E. Wheeler, et al

66981

167/1350

4-4-1958

Hells Canyon Hydro Project

Hazel Margaret Bauman, et al

62928

167/085

7-5-1957

Hells Canyon Hydro Project

Charles O. and Mildred I. Whiteley

62929

167/087

7-5-1957

Hells Canyon Hydro Project

Henry Will

62295

166/1340

5-29-1957

 

 


 


 

 

EXHIBIT B

 

 

GRANT COUNTY, OREGON

 

[No fee lands currently listed]

 

 


 


 

 

EXHIBIT B

 

 

HARNEY COUNTY, OREGON

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Drewsey Substation

W.O. and Emma J. Newell

72916

46/434

8-2-1947

 

 


 


 

 

EXHIBIT B

 

 

MALHEUR COUNTY, OREGON

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Multiple Properties

Electric Investment Company

76203

9/487

8-14-1916

Nyssa Office

City of Nyssa, Oregon

88-18411

 

5-27-1988

Cairo Substation

Livestock Market Development Company

94001

140/481

12-9-1968

Harper Substation

John R. Coleman, et al

72845

132/532

5-6-1966

Holley Substation

Dewey E. and Lenora J. Winkelmann

70343

132/40

2-9-1966

Hope Substation

Malheur County, Oregon

85-131173

 

9-25-1985

Hope Substation

Leslie J. Matthews, Jr.

85-131247

 

9-30-1985

Jacobsen Gulch Substation

Skyline Farms, Inc.

82015

136/75

6-26-1967

Juntura Substation

David T. and Julia Jones

46054

69-399

1-21-1947

Jordan Valley Substation

Jordan Valley Electric Cooperative, Inc.

34708

65/37

1-5-1946

Jordan Valley Substation

Jordan Valley Electric Cooperative, Inc.

39405

66/604

5-25-1946

Jordan Valley Substation

Jordan Valley Electric Cooperative, Inc.

44304

68/617

11-22-1946

Malheur Butte Substation

Skyline Farms, Inc.

76655

134/238

11-9-1966

Jamieson Substation

Lester E. and Crystal B. Hammack

24669

90/340

8-21-1952

Cow Valley Substation

Ernest and Hattie Locey

24670

90-342

8-21-1952

Nyssa Substation

F.L. Lockwood

10268

1/449

3-1-1912

Nyssa Substation

Eris L. and Willis J. Bertram

116083

 

12-28-1970

Ontario Substation

Emery C. and Maleta M. Bedwell

51492

71/191

7-18-1947

Ontario Substation

Christ Ballner

52856

71/472

9-26-1947

Ontario Substation

Virgil J. and Minnie M. Jackson

52857

71/473

9-26-1947

Ontario Substation

Howard L. and Maxine Speelman

52858

71/474

9-26-1947

Ontario Substation

M.H. Thayer, et al

59200

74/371

5-18-1948

Ontario Substation

J.L. and Helen Dunker

67739

78/405

4-29-1949

Ontario Substation

State of Oregon

15046

99/124

2-17-1955

Ontario Substation

Freeman A. and Abbie G. Stewart

62795

25/309

5-6-1925

Ontario Substation

Wyman L. and Minnie Hall

62796

25/310

5-6-1925

Ore-Ida Substation

Marjorie M. Ridgeway

124131

 

8-31-1971

Ore-Ida Substation

Ore-Ida Foods, Inc.

126868

 

12-3-1971

Vale Substation

Vale Power Company

72219

29/408

3-30-1928

Adrian Substation

Lawrence and Christine Ziemer

2006-8242

 

11-8-2006

Sage Substation

Eddy and Evelyn Sayers

2007-8432

 

11-9-2007

Malheur Transmission Lands

W.J. Bailey, et al

10267

1/448

3-1-1912

Ontario-Huntington Line

Oscar and Thilda Jacobson

73643

30/177

8-31-1928

Malheur County Lands

Malheur Co-operative Electrical Association

70985

79/593

9-22-1949

Malheur County Lands

Malheur Co-operative Electrical Association

69651

79/203

7-12-1949

Malheur County Lands

Ontario-Nyssa Irrigation Company

36121

14/171

1-29-1919

 

 


 

EXHIBIT B

 

MORROW COUNTY, OREGON

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Boardman Power Plant

Boardman Power Company

1978-13972

 

9-1-1978

 

 


 


 

 

EXHIBIT B

 

 

UNION COUNTY, OREGON

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Ladd Canyon Microwave Site

Harvey and Goldie Ruckman

47956

139/266

7-8-1957

Ladd Substation

Ruth A. Crossen

6080

149/578

8-25-1964

North Powder Substation

Telocaset Wind Power Partners, LLC

20091674

 

5-8-2009

 

 


 


 

 

EXHIBIT B

 

 

WALLOWA COUNTY, OREGON

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Hells Canyon Project

W.G. and Hattie L. Miller

62471

71/77

4-23-1963

Hells Canyon Project

Earl Thompson, et al

64590

71/507

5-6-1964

Hells Canyon Project

Earl Thompson, et al

64591

71/508

5-6-1964

Hells Canyon Project

Earl Thompson, et al

64592

71/508

5-6-1964

Hells Canyon Project

Dan R. and Vi Cole

62668

71/122

6-10-1963

Hells Canyon Project

Dan R. and Violet J. Cole

69661

74/241

3-15-1967

Pallette Substation

Vern and Cecyl Colvin

55960

68/634

10-16-1959

 

 

 


 


 

 

EXHIBIT B

 

LINCOLN COUNTY, WYOMING

 

[No fee lands currently listed]

 

 


 


 

 

EXHIBIT B

 

 

SWEETWATER COUNTY, WYOMING

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Jim Bridger Power Plant

Union Pacific Railroad Company

391260

487/468

12-30-1970

Jim Bridger Water Line

Tourist Development Company

122677

522/ 54

3-6-1973

Jim Bridger Water Line

Wyoming Broadcasting Company

427313

527/643

6-4-1973

Jim Bridger Evaporation Pond

Union Pacific Railroad Company

489605

599/620

12-23-1975

JB Gass Desulfurization pond

Union Pacific Land Resources Corporation

774860

694/1697

10-18-1978

Jim Bridger Pumping Plant

Pacific Power & Light Company

782309

697/788

1-22-1979

Jim Bridger Fly-Ash Landfill

Pacific Power & Light Company

961998

766/926

10-24-1985

Jim Bridger Evaporation Pond

Union Pacific Land Resources Corporation

990782

776-1923

12-12-1986

 

 


 


 

 

EXHIBIT B

 

 

ELKO COUNTY, NEVADA

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Wells Substation

Ray A. Foote

1839

7/66

9-8-1960

 

 


 


 

 

EXHIBIT B

 

 

HUMBOLDT COUNTY, NEVADA

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Valmy Power Plant

Sierra Pacific Power Co.

210447

145/427

1-27-1981

 

 


 


 

 

EXHIBIT B

 

 

LANDER COUNTY, NEVADA

 

Property Name

Grantor

Instrument No.

Book/

Page

Recording Date

Valmy Power Plant

Sierra Pacific Power Co.

104268

190/253

1-27-1981

 

 

 

 

 


 

 

 

 

 

 

Exhibit 10.66

IDACORP, Inc. and/or Idaho Power Company Executive Officers
with Amended and Restated Change in Control Agreements Chart
(as of June 30, 2010)

Name

Title

Date of Agreement

J. LaMont Keen

President and Chief Executive Officer, IDACORP and Idaho Power

12/29/2008

Darrel T. Anderson

Executive Vice President  Administrative Services and Chief Financial Officer, IDACORP and Idaho Power

12/23/2008

Daniel B. Minor

Executive Vice President, Operations, IDACORP and Idaho Power

12/30/2008

Rex Blackburn

Senior Vice President and General Counsel, IDACORP and Idaho Power

4/1/2009

Lisa A. Grow

Senior Vice President, Power Supply, Idaho Power

12/12/2008

John R. Gale

Senior Vice President, Corporate Responsibility, IDACORP and Idaho Power

12/12/2008

Steven R. Keen

Vice President, Finance and Treasurer, IDACORP and Idaho Power

12/30/2008

Dennis C. Gribble

Vice President and Chief Information Officer, IDACORP and Idaho Power

12/11/2008

Lori D. Smith

Vice President, Chief Risk Officer, IDACORP and Idaho Power

12/31/2008

Luci K. McDonald

Vice President, Human Resources and Corporate Services, IDACORP and Idaho Power

12/20/2008

Naomi Shankel

Vice President, Supply Chain, IDACORP and Idaho Power

12/9/2008

Jeffrey L. Malmen

Vice President, Public Affairs, IDACORP and Idaho Power

12/10/2008

Warren Kline

Vice President, Customer Operations, Idaho Power

12/15/2008

 

 


 

 

 

Patrick A. Harrington

Corporate Secretary, IDACORP and Idaho Power

12/9/2008

N. Vern Porter*

Vice President, Delivery Engineering and Operations, Idaho Power

03/18/2010

Kenneth W. Petersen*

Corporate Controller and Chief Accounting Officer, IDACORP and Idaho Power

05/20/2010

 

 

                                                           

*  Change in control agreement does not include 13 th month trigger or tax gross-up provisions.


 

 

 

 

Exhibit 10.69

 

 

 

EXECUTION COPY

JOINT PURCHASE AND SALE AGREEMENT

BETWEEN

IDAHO POWER COMPANY,

AND

PACIFICORP,

 

 

APRIL 30, 2010


 

EXECUTION COPY

 

Table of Contents

Page

 

Article I  DEFINITIONS

2

 

1.1

Definitions

2

 

1.2

Other Definitional and Interpretive Matters

11

 

1.3

Joint Negotiation and Preparation of Agreement

12

Article II  PURCHASE AND SALE

12

 

2.1

Purchase and Sale

12

 

2.2

Excluded Assets

13

 

2.3

Assumed Obligations

15

 

2.4

Excluded Liabilities

15

 

2.5

Non-Assignable Assets

18

 

2.6

Consideration

19

 

2.7

[Intentionally omitted.]

21

 

2.8

Proration

21

 

2.9

Time and Place of Closing

22

 

2.10

Closing Deliverables

22

 

2.11

Conditions Precedent to Closing

25

 

2.12

Release of Mortgage Liens or other Encumbrances

27

Article III  REPRESENTATIONS AND WARRANTIES

28

 

3.1

Representations and Warranties of Idaho Power

28

 

3.2

Representations and Warranties of PacifiCorp

30

Article IV  COVENANTS

33

 

4.1

Conditions and Commercially Reasonable Efforts

33

 

4.2

Filings with Governmental Entities

33

 

4.3

Compliance

34

 

4.4

Risk of Loss

34

 

4.5

Maintenance of Substation Facilities

34

 

4.6

Notice

34

 

4.7

Disclosure

35

 

 

 

 

 

 

 

 

 

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EXECUTION COPY

 

 

Article V  TERMINATION

35

 

5.1

Termination

35

 

5.2

Effect of Early Termination

36

Article VI  INDEMNIFICATION

36

 

6.1

Survival of Representations and Warranties:  Notices of Claims

36

 

6.2

Indemnification

37

 

6.3

Limitations on Indemnification

38

 

6.4

Exclusive Remedies

39

 

6.5

Notice and Participation

39

 

6.6

Net Amount

40

 

6.7

No Set-Off

41

 

6.8

No Release of Insurers

41

 

6.9

Mitigation

41

 

6.10

Survival of Obligation

41

 

6.11

Limitation of Liability

41

Article VII  MISCELLANEOUS PROVISIONS

41

 

7.1

Amendment and Modification

41

 

7.2

Waiver of Compliance; Consents

41

 

7.3

Notices

41

 

7.4

Assignment

42

 

7.5

Governing Law; Exclusive Choice of Forum; Remedies

42

 

7.6

Severability

43

 

7.7

Entire Agreement

43

 

7.8

Expenses

43

 

7.9

Delivery

43

 

            ii

 


 


 

 

EXECUTION COPY

 

Exhibits

Exhibit A

Description of Hemingway Substation Facilities

Exhibit B

Description of Populus Substation Facilities

Exhibit C

Form of Hemingway Bill of Sale

Exhibit D

Form of Populus Bill of Sale

Exhibit E

Form of Hemingway Assignment and Assumption Agreement

Exhibit F

Form of Populus Assignment and Assumption Agreement

Exhibit G

Form of Hemingway Joint Ownership and Operating Agreement

Exhibit H

Form of Populus Joint Ownership and Operating Agreement

Exhibit I

Form of Hemingway Easement Agreement

Exhibit J

Form of Populus Easement Agreement

Exhibit K

Description of Hemingway Substation Site

Exhibit L

Description of Populus Substation Site

Exhibit M

Form of Hemingway Deed

Exhibit N

Form of Populus Deed

 

Schedules

Schedule 1.1(a)

Hemingway Transferable Permits

Schedule 1.1(b)

Idaho Power’s Knowledge

Schedule 1.1(c)

Idaho Power Permitted Encumbrances

Schedule 1.1(d)

PacifiCorp’s Knowledge

Schedule 1.1(e)

PacifiCorp Permitted Encumbrances

Schedule 1.1(f)

Populus Transferable Permits

Schedule 3.1(e)

Exceptions to Governmental Authorizations Obtained by Idaho Power

Schedule 3.1(f)

PacifiCorp Acquired Assets - Liabilities

Schedule 3.1(g)

PacifiCorp Acquired Assets - Title Exceptions

Schedule 3.1(h)(i)-A

PacifiCorp Acquired Assets - Environmental Permits

Schedule 3.1(h)(i)-B

PacifiCorp Acquired Assets - Environmental Law and Environmental

 

Permit Exceptions

Schedule 3.1(h)(ii)

PacifiCorp Acquired Assets – Violation of Environmental Laws and

 

Environmental Permits

Schedule 3.1(h)(iii)

PacifiCorp Acquired Assets - Releases

Schedule 3.1(h)(iv)

PacifiCorp Acquired Assets – Storage Tanks, etc.

Schedule 3.1(h)(v)

PacifiCorp Acquired Assets – Assumed Obligations Under Environmental

 

Laws

Schedule 3.1(h)(vi)

PacifiCorp Acquired Assets - Environmental Reports

Schedule 3.1(k)

PacifiCorp Acquired Assets – Intellectual Property

Schedule 3.1(l)

Hemingway Substation Facilities Contracts

Schedule 3.2(e)

Exceptions to Governmental Authorizations Obtained by PacifiCorp

Schedule 3.2(f)

Idaho Power Acquired Assets - Liabilities

Schedule 3.2(g)

Idaho Power Acquired Assets - Title Exceptions

Schedule 3.2(h)(i)-A

Idaho Power Acquired Assets - Environmental Permits

Schedule 3.2(h)(i)-B

Idaho Power Acquired Assets - Environmental Law and Environmental

 

Permit Exceptions

 

            iii

 


 

EXECUTION COPY

 

Schedule 3.2(h)(ii)

Idaho Power Acquired Assets – Violation of Environmental Laws and

 

Environmental Permits

Schedule 3.2(h)(iii)

Idaho Power Acquired Assets - Releases

Schedule 3.2(h)(iv)

Idaho Power Acquired Assets – Storage Tanks, etc.

Schedule 3.2(h)(v)

Idaho Power Acquired Assets – Assumed Obligations Under

 

Environmental Laws

Schedule 3.2(h)(vi)

Idaho Power Acquired Assets - Environmental Reports

Schedule 3.2(k)

Idaho Power Acquired Assets – Intellectual Property

Schedule 3.2(l)

Populus Substation Facilities Contracts

Schedule 4.2(a)

Idaho Power Required Regulatory Approvals Initiated by Idaho Power

 

prior to the Effective Date

Schedule 4.2(b)

PacifiCorp Required Regulatory Approvals Initiated by PacifiCorp prior 

 

to the Effective Date

 

 

            iv

 


 


 

 

EXECUTION COPY

 

JOINT PURCHASE AND SALE AGREEMENT

This Joint Purchase and Sale Agreement (this “ Agreement ”), dated as of April 30, 2010 (“ Effective Date ”), is made and entered into by and between Idaho Power Company, an Idaho corporation acting in its capacity as a regulated transmission provider (“ Idaho Power ”), and PacifiCorp, an Oregon corporation acting in its capacity as a regulated transmission provider (“ PacifiCorp ”).  Each of Idaho Power and PacifiCorp are sometimes hereinafter referred to individually as “ Party ” and collectively as “ Parties ”.

RECITALS:

WHEREAS, Idaho Power is a transmission provider which owns and operates certain facilities for the transmission of electric power and energy located in Idaho, including the Hemingway Substation which is currently under construction (the “ Hemingway Substation ”);

WHEREAS, PacifiCorp is a transmission provider which owns and operates certain facilities for the transmission of electric power and energy located in Idaho, including the Populus Substation which is currently under construction (the “ Populus Substation ”);

WHEREAS, (i) Idaho Power wishes to sell and transfer to PacifiCorp and PacifiCorp wishes to purchase and accept from Idaho Power an undivided ownership interest in certain electrical fixtures affixed to the real property located at the Hemingway Substation (consisting of the electrical fixtures described in Section I of Exhibit A that are installed at the Hemingway Substation on or before the Closing Date, the “ Hemingway Substation Facilities ”), subject to the terms and conditions set forth in this Agreement; (ii) PacifiCorp wishes to sell and transfer to Idaho Power and Idaho Power wishes to purchase and accept from PacifiCorp an undivided ownership interest in certain electrical fixtures affixed to the real property located at the Populus Substation (consisting of the electrical fixtures described in Section I of Exhibit B that are installed at the Populus Substation on or before the Closing Date, the “ Populus Substation Facilities ”), subject to the terms and conditions set forth in this Agreement; and (iii) the Parties desire to enter into and/or deliver to one another certain Related Documents in connection therewith at or before the Closing (collectively, the “ Contemplated Transaction ”); and

WHEREAS, the Parties desire to memorialize the terms and conditions by which Idaho Power will sell and transfer to PacifiCorp and PacifiCorp will purchase and accept from Idaho Power an undivided ownership interest in the Hemingway Substation Facilities, and by which PacifiCorp will sell and transfer to Idaho Power and Idaho Power will purchase and accept from PacifiCorp an undivided ownership interest in the Populus Substation Facilities.

NOW THEREFORE, in consideration of the Parties’ respective representations, warranties, and agreements hereinafter set forth and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:

 

 

                                                                             


 


 

 

EXECUTION COPY

 

 

Article I
DEFINITIONS

1.1              Definitions .  As used in this Agreement, the following capitalized terms have the meanings specified in this Section 1.1 :

Action ” means any demand, action, claim, suit, countersuit, arbitration, inquiry, subpoena, discovery request, proceeding or investigation by or before any court or grand jury, any Governmental Entity or any arbitration or mediation tribunal.

Affiliate ” means, with respect to a Person, each other Person that, directly or indirectly, controls, is controlled by or is under common control with, such designated Person; provided , however , that in the case of PacifiCorp, “Affiliate” means MidAmerican Energy Holdings Company and its direct and indirect subsidiaries.  For the purposes of this definition, “ control ” (including with correlative meanings, the terms “ controlled by ” and “ under common control with ”), as used with respect to any Person, shall mean (a) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (b) the right to direct the policies or operations of such Person.

Affiliated Group ” means any affiliated group within the meaning of Code Section 1504(a) or any similar group defined under a similar provision of law.

Agreement ” has the meaning given to such term in the preamble.

Business Day ” means any day other than Saturday, Sunday, and any day which is a legal holiday or a day on which banking institutions in New York, New York are authorized or obligated by Governmental Requirements to close.

Claims ” means any administrative, regulatory, or judicial actions or causes of action, suits, petitions, proceedings (including arbitration proceedings), investigations, hearings, demands, demand letters, claims, complaints, allegations of liability or potential liability or notices of noncompliance or violation delivered by any Governmental Entity or other Person.

Closing ” has the meaning given to such term in Section 2.9 .

Closing Date ” has the meaning given to such term in Section 2.9 .

Code ” means the Internal Revenue Code of 1986, as amended.

Commercially Reasonable Efforts ” means the level of effort that a reasonable electric utility would take in light of the then known facts and circumstances to accomplish the required action at a then commercially reasonable cost (taking into account the benefits to be gained thereby).

            2

 


 


 

 

EXECUTION COPY

 

Contract ” means any agreement, lease, license, note, evidence of indebtedness, mortgage, security agreement, understanding, instrument or other arrangement, in each case, whether written or oral.

Contemplated Transaction ” has the meaning given to such term in the recitals.

Costs ” means, with respect to a Party’s construction of the Hemingway Substation Facility or the Populus Substation Facility, as applicable, or such construction on behalf of a Party, the Party’s actual cost of preliminary surveys and investigation, development, design, and construction of the facility, including an allowance for funds used during construction and applicable overheads determined in accordance with the Party’s customary practices, as calculated in accordance with the Federal Energy Regulatory Commission’s Uniform System of Accounts.

Disputed Costs Notice ” has the meaning given to such term in Section 2.6(d)(i)(B) .

Effective Date ” has the meaning given to such term in the preamble.

Effective Time ” has the meaning given to such term in Section 2.9 .

Encumbrances ” means any mortgages, pledges, liens, Claims, charges, security interests, conditional and installment sale agreements, activity and use limitations, easements, covenants, encumbrances, obligations, limitations, title defects, deed restrictions, and any other restrictions of any kind, including restrictions on use, transfer, receipt of income, or exercise of any other attribute of ownership.

Environment ” means the indoor or outdoor environment, including any soil, land surface and subsurface strata, surface waters (including navigable waters, streams, ponds, drainage basins, and wetlands), groundwater, drinking water supply, sediments, ambient air (including the air within buildings and the air within other natural or man-made structures above or below ground), plant and animal life, and any other natural resource.

Environmental Claims ” means any and all Claims (including any such Claims involving toxic torts or similar liabilities in tort, whether based on negligence or other fault, strict or absolute liability, or any other basis) relating in any way to any Environmental Laws or Environmental Permits, or arising from the presence, Release, or threatened Release (or alleged presence, Release, or threatened Release) into the Environment of any Hazardous Materials, or the result of the handling, transportation or treatment of Hazardous Materials, including any and all Claims by any Governmental Entity or by any Person for enforcement, cleanup, remediation, removal, response, remedial or other actions, or response costs, damages, contribution, indemnification, cost recovery, compensation, fines or penalties or injunctive relief arising out of or relating to any Environmental Law or Hazardous Materials or for any property damage, natural resource damage or personal or bodily injury (including death) or threat of injury to health, safety, natural resources, or the Environment.

            3

 


 


 

 

EXECUTION COPY

 

Environmental Laws ” means all Governmental Requirements (including common law) relating to pollution or the protection of human health, safety, the Environment, or damage to natural resources, including Governmental Requirements relating to Releases and threatened Releases or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of Hazardous Materials.  Environmental Laws include the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136, et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. § 6901, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1801, et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq.; the Clean Air Act, 42 U.S.C. § 7401, et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251, et seq.; the Oil Pollution Act, 33 U.S.C. § 2701, et seq.; the Endangered Species Act, 16 U.S.C. § 1531, et seq.; the National Environmental Policy Act, 42 U.S.C. § 4321, et seq.; the Occupational Safety and Health Act, 29 U.S.C. § 651, et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f, et seq.; Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001, et seq.; Atomic Energy Act, 42 U.S.C. § 2014, et seq.; Nuclear Waste Policy Act, 42 U.S.C. § 10101, et seq.; and all similar or analogous foreign, state, regional or local statutes, secondary and subordinate legislation, and directives, as in effect and legally binding, and the rules and regulations promulgated thereunder, and any provisions of common law providing for any remedy or right of recovery or right of injunctive relief with respect to Environmental Matters, as these laws, rules and regulations were in the past or are currently in effect at the relevant time period.

Environmental Matters ” means:  (a) the pollution or destruction of, or loss or injury to, or any adverse effect upon, the Environment, (b) the protection, cleanup or restoration of, or removal, remediation or mitigation of conditions affecting the Environment, (c) any Release or the generation, handling, transportation, use, treatment or storage of any Hazardous Materials, (d) the regulation of the manufacture, processing, distribution or use, for commercial purposes, of chemical substances or radioactive materials, by-products or waste, or (e) any matter concerning or arising out of the Environment or exposure to Hazardous Materials.

Environmental Permits ” means all permits, certifications, licenses, franchises, approvals, consents, notifications, exemptions, waivers or other authorizations of any Governmental Entity under or with respect to applicable Environmental Laws.

GAAP ” means generally accepted accounting principles in the United States of America.

Good Utility Practice ” means any of the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, would have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition.  Good Utility Practice is not intended to be limited to the optimum practice, method, or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts generally accepted in the region, including those practices required by Federal Power Act Section 215(a)(4) , 16 U.S.C. § 824o(a)(4)(2006).

 

            4

 


 


 

 

EXECUTION COPY

 

Governmental Authorizations ” means any license, permit, order, approval, filing, waiver, exemption, variance, clearance, entitlement, allowance, franchise, or other authorization from or by a Governmental Entity, including Environmental Permits.

Governmental Entity ” means any federal, state, local or municipal governmental body; any governmental, quasi-governmental, regulatory or administrative agency, commission, body or other authority exercising or entitled to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power.

Governmental Requirements ” means all laws, statutes, ordinances, rules, regulations, codes and similar acts or promulgations or other legally enforceable requirements of any Governmental Entity.

Hazardous Materials ” means (a) any chemicals, materials, substances, or wastes which are now or hereafter defined as or included in the definition of “hazardous substance,” “hazardous material,” “hazardous waste,” “solid waste,” “toxic substance,” “extremely hazardous substance,” “pollutant,” “contaminant,” or words of similar import under any applicable Environmental Laws; (b) any petroleum, petroleum products (including crude oil or any fraction thereof), natural gas, natural gas liquids, liquefied natural gas or synthetic gas useable for fuel (or mixtures of natural gas and such synthetic gas), or oil and gas exploration or production waste, polychlorinated biphenyls, asbestos-containing materials, mercury, urea formaldehyde insulation, radioactivity and lead-based paints; and (c) any other chemical, material, substances, waste, or mixture thereof which is prohibited, limited, or regulated pursuant to, or that could reasonably be expected to give rise to liability under, Environmental Laws.

Hemingway Assignment and Assumption Agreement ” has the meaning given to such term in Section 2.10(a)(ii) .

Hemingway Bill of Sale ” has the meaning given to such term in Section 2.10(a)(i) .

Hemingway BLM Right-of-Way Grant ” means the Right-of-Way Grant IDI-36034 from the United States Department of Interior, Bureau of Land Management to Idaho Power, dated as of June 4, 2009, with respect to portions of the Hemingway Substation Site.

Hemingway Deed ” has the meaning given to such term in Section 2.10(a)(viii) .

Hemingway Easements ” means those easements, rights, privileges and other benefits conveyed under the Hemingway Easement Agreement.

Hemingway Easement Agreement ” has the meaning given to such term in Section 2.10(a)(vi) .

Hemingway Joint Ownership and Operating Agreement ” has the meaning given to such term in Section 2.10(a)(iv) .

Hemingway Ownership Interest ” means, in the case of Idaho Power forty-one and no-tenths percent (41.0%), and in the case of PacifiCorp fifty-nine and no-tenths percent (59.0%).

            5

 


 


 

 

EXECUTION COPY

 

Hemingway Substation ” has the meaning given to such term in the recitals.

Hemingway Substation Facilities ” has the meaning given to such term in the recitals.

Hemingway Substation Facilities Contracts ” has the meaning given to such term in Section 3.1(l) .

Hemingway Substation Site ” means the site where the Hemingway Substation is located in Owyhee County near Melba, Idaho, as further described on Exhibit K .

Hemingway Transferable Permits ” means the Governmental Authorizations, if any, listed on Schedule 1.1(a) .

Idaho Power ” has the meaning given to such term in the preamble.

Idaho Power Acquired Assets ” has the meaning given to such term in Section 2.1(b) .

Idaho Power Acquired Assets Cost Records ” has the meaning given to such term in Section 2.6(d)(i)(A) .

Idaho Power Acquired Assets Costs ” has the meaning given to such term in Section 2.6(d)(i)(A) .

Idaho Power Assumed Obligations ” has the meaning given to such term in Section 2.3(b) .

Idaho Power Excluded Assets ” has the meaning set forth in Section 2.2(a) .

Idaho Power Excluded Liabilities ” has the meaning set forth in Section 2.4(a) .

Idaho Power Marks ” means the rights of Idaho Power and its Affiliates to the names “Idaho Power Company,” “IDACORP,” or any trade names, trademarks, service marks, corporate names or logos, or any derivative or combination thereof, that are confusingly similar thereto.

Idaho Power Mortgage ” means the Mortgage and Deed of Trust, dated as of October 1, 1937, and indentures supplemental thereto, granted by Idaho Power to Deutsche Bank Trust Company Americas, formerly known as Bankers Trust Company, and Stanley Burg, as Trustees.

Idaho Power Nonassignable Item ” has the meaning given to such term in Section 2.5(a) .

Idaho Power Permitted Encumbrances ” means (a) those Encumbrances set forth in Schedule 1.1(c) ;  (b) Encumbrances securing or created by or in respect of any of the PacifiCorp Assumed Obligations; (c) statutory liens for current Taxes or assessments not yet due or payable; (d) mechanics', carriers', workers', repairers', landlords', and other similar liens arising or incurred in the ordinary course of business relating to obligations as to which there is no default on the part of Idaho Power, or pledges, or deposits, or other liens securing the performance of statutory obligations; (e) any Encumbrances set forth in any state, local, or municipal franchise

            6

 


 


 

 

EXECUTION COPY


or governing ordinance under which any portion of the PacifiCorp Acquired Assets are being used or conducted; or (f) Encumbrances, including zoning, entitlement, restriction, and other land use regulations by Governmental Entities, which, together with all other Encumbrances, do not materially detract from the value of or materially interfere with the present use of the PacifiCorp Acquired Assets or the conduct of the business thereon as it is currently being used and conducted or as contemplated under any of the Related Documents.

Idaho Power Purchase Price ” has the meaning given to such term in Section 2.6(b) .

Idaho Power Required Regulatory Approvals ” has the meaning given to such term in Section 3.1(e) .

Idaho Power True-up Notice ” has the meaning given to such term in Section 2.6(c) .

Idaho Power’s Knowledge ” means the actual, constructive or imputed knowledge that the individuals listed in Schedule 1.1(b) have or could reasonably be expected to have after reasonable due inquiry.

Income Tax ” means any Tax based upon, measured by, or calculated with respect to (a) net income, profits, or receipts (including capital gains Taxes and minimum Taxes) or (b) multiple bases (including corporate franchise and business license Taxes) if one or more of the bases on which such Tax may be based, measured by, or calculated with respect to is described in clause (a), in each case together with any interest, penalties, or additions to such Tax.

Indemnified Party ” has the meaning given to such term in Section 6.5(a) .

Indemnifying Party ” has the meaning given to such term in Section 6.5(a) .

Independent Accounting Firm ” means an independent accounting firm of national reputation mutually appointed by the Parties.

Intellectual Property ” means trademarks, patents, copyrights, trade secrets, and other intellectual property rights which are utilized in connection with ownership, use and operation of the PacifiCorp Acquired Assets or the Idaho Power Acquired Assets (as these facilities are reasonably expected to be operated in accordance with the provisions of the Hemingway Joint Ownership and Operating Agreement or the Populus Joint Ownership and Operating Agreement, as applicable, on the date the facilities enter commercial operation), as the case may be.

Liability ” means any debt, liability, obligation or commitment of any kind, character or description, whether known or unknown, absolute or contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise.

Losses ” mean any and all damages and losses, deficiencies, Liabilities, taxes , obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses, whether or not resulting from third party claims, including the costs and expenses of any and all Actions and demands, assessments, judgments, settlements and compromises relating thereto and the costs and expenses of attorneys', accountants', consultants' and other

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professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder and costs and expenses of remediation (including, in the case of remediation, all expenses and costs associated with financial assurance); provided , however , that in no event shall Losses include lost profits or damages and losses excluded under Section 6.11 .

Material Adverse Effect ” means, in respect of a Party, an event, circumstance, condition, or occurrence of whatever nature that materially and adversely affects: (a) the business, assets, property, results of operation, or financial condition of such Party or any of its Affiliates, including a material adverse regulatory impact on such Party or any of its Affiliates; (b) such Party’s ability to perform its obligations under this Agreement or any of the Related Documents to which it is a party; or (c) the validity or enforceability of this Agreement or any of the Related Documents to which it is a  party, including the ability of such Party to enforce any of its rights or remedies hereunder or thereunder.

Outside Closing Date ” means December 31, 2010 or such later date as the Parties may agree to in writing, such agreement not unreasonably to be withheld or delayed, which is the latest date by which the Closing may occur.

PacifiCorp ” has the meaning given to such term in the preamble.

PacifiCorp Acquired Assets ” has the meaning given to such term in Section 2.1(a) .

PacifiCorp Acquired Assets Cost Records ” has the meaning given to such term in Section 2.6(d)(i)(A) .

PacifiCorp Acquired Assets Costs ” has the meaning given to such term in Section 2.6(d)(i)(A) .

PacifiCorp Assumed Obligations ” has the meaning given to such term in Section 2.3(a) .

PacifiCorp Excluded Assets ” has the meaning given to such term in Section 2.2(b) .

PacifiCorp Excluded Liabilities ” has the meaning given to such term in Section 2.4(b) .

PacifiCorp Marks ” means the rights of PacifiCorp and its Affiliates to the names “PacifiCorp,” “Pacific Power,” “Rocky Mountain Power,” “PacifiCorp Energy,” or any trade names, trademarks, service marks, corporate names or logos, or any derivative or combination thereof, that are confusingly similar thereto.

PacifiCorp Mortgage ” means the Mortgage and Deed of Trust from PacifiCorp to Morgan Guaranty Trust Company of New York (The Bank of New York Mellon Trust Company, N.A., successor), dated as of January 9, 1989, as amended and supplemented by supplemental indentures, including the Twenty-Third Supplemental Indenture, dated January 1, 2009 and recorded in the records of Bannock County, Idaho on June 10, 2009, under Recording No. 20912676.

PacifiCorp Nonassignable Item ” has the meaning given to such term in Section 2.5(b) .

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PacifiCorp Permitted Encumbrances ” means (a) those Encumbrances set forth in Schedule 1.1(e) ;  (b) Encumbrances securing or created by or in respect of any of the Idaho Power Assumed Obligations; (c) statutory liens for current Taxes or assessments not yet due or payable; (d) mechanics’, carriers’, workers’, repairers’, landlords’, and other similar liens arising or incurred in the ordinary course of business relating to obligations as to which there is no default on the part of PacifiCorp, or pledges, or deposits, or other liens securing the performance of statutory obligations; (e) any Encumbrances set forth in any state, local, or municipal franchise or governing ordinance under which any portion of the Idaho Power Acquired Assets are being used or conducted; or (f) Encumbrances, including zoning, entitlement, restriction, and other land use regulations by Governmental Authorities, which, together with all other Encumbrances, do not materially detract from the value of or materially interfere with the present use of the Idaho Power Acquired Assets or the conduct of the business thereon as it is currently being used and conducted or as contemplated under any of the Related Documents.

PacifiCorp Purchase Price ” has the meaning given to such term in Section 2.6(a) .

PacifiCorp Required Regulatory Approvals ” has the meaning given to such term in Section 3.2(e) .

PacifiCorp True-up Notice ” has the meaning given to such term in Section 2.6(c) .

PacifiCorp’s Knowledge ” means the actual, constructive or imputed knowledge that the individuals listed in Schedule 1.1(d) have or could reasonably be expected to have after reasonable due inquiry.

Party ” has the meaning given to such term in the preamble.

Person ” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or Government Entity.

Populus Assignment and Assumption Agreement ” has the meaning given to such term in Section 2.10(a)(iii) .

Populus Bill of Sale ” has the meaning given to such term in Section 2.10(b)(i) .

Populus Deed ” has the meaning given to such term is Section 2.10(b)(viii) .

Populus Easements ” means those easements, rights, privileges and other benefits conveyed under the Populus Easement Agreement.

Populus Easement Agreement ” has the meaning given to such term in Section 2.10(a)(vii) .

Populus Joint Ownership and Operating Agreement ” has the meaning given to such term in Section 2.10(a)(v) .

Populus Ownership Interest ” means, in the case of Idaho Power twenty and eight-tenths percent (20.8%), and in the case of PacifiCorp seventy-nine and two-tenths percent (79.2%).

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Populus Substation ” has the meaning given to such term in the recitals.

Populus Substation Facilities ” has the meaning given to such term in the recitals.

Populus Substation Facilities Contracts ” has the meaning given to such term in Section 3.2(l) .

Populus Substation Site ” means the site where the Populus Substation is located in Bannock County near Downey, Idaho, as further described on Exhibit L .

Populus Transferable Permits ” means the Governmental Authorizations, if any, listed on Schedule 1.1(f) .

Purchase Price ” means the Idaho Purchase Price or the PacifiCorp Purchase Price.

Release ” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of Hazardous Materials into the Environment.

Related Documents ” means the Hemingway Bill of Sale, Populus Bill of Sale, Hemingway Joint Ownership and Operating Agreement, Populus Joint Ownership and Operating Agreement, Hemingway Assignment and Assumption Agreement, Populus Assignment and Assumption Agreement, the Hemingway Easement Agreement, the Populus Easement Agreement, the Hemingway Deed, the Populus Deed, and each other document, certificate or instrument delivered by each of the Parties on the Closing in accordance with the terms of this Agreement.

Representatives ” means, with respect to a Party, the directors, officers, shareholders, partners, members, employees, agents, consultants, contractors or other representatives of such Party.

Required Regulatory Approvals ” means the Idaho Power Required Regulatory Approvals and the PacifiCorp Required Regulatory Approvals.

Subsidiary ,” when used in reference to a Person, means any Person (a) of which outstanding securities or other equity interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions of such Person are owned directly or indirectly by such first Person, (b) of which such Person or any subsidiary of such first Person is a general partner or (c) such first Person directly or indirectly controls.

Tax” and “ Taxes ” means all taxes, charges, customs, duties, fees, levies, penalties, or other assessments imposed by any foreign or United States federal, state, or local taxing authority, including profits, estimated gross receipts, income, excise, property, replacement tax, sales, transfer, franchise, license, payroll, withholding, social security, or any other taxes (including any escheat or unclaimed property obligations), including any interest, penalties, or additions attributable thereto.

 

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Tax Affiliate ” of a Person means a member of that Person’s Affiliated Group and any other Subsidiary of that Person which is a partnership or is disregarded as an entity separate from that Person for Tax purposes.

Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes of any kind or nature, filed or required to be filed with any Governmental Entity, including any schedule or attachment thereto, and including any amendment thereof.

Transfer Taxes ” means any real property transfer, sales, use, value added, stamp, documentary, recording, registration, conveyance, stock transfer, intangible property transfer, personal property transfer, gross receipts, registration, duty, securities transactions or similar fees or Taxes or governmental charges (together with any interest or penalty, addition to Tax or additional amount imposed) as levied by any Governmental Entity in connection with the transactions contemplated by this Agreement, including any payments made in lieu of any such Taxes or governmental charges which become payable in connection with the transactions contemplated by this Agreement.

True-up Notice ” means either the Idaho Power True-up Notice or the PacifiCorp True-up Notice.

1.2              Other Definitional and Interpretive Matters .  Unless otherwise expressly provided in this Agreement, for purposes of this Agreement, the following rules of interpretation apply:

(a)             Calculation of Time Period .  When calculating the period of time before which, within which, or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period will be excluded.  If the last day of such period is a non-Business Day, the period in question will end on the next succeeding Business Day.

(b)            Dollars .  Any reference in this Agreement to “ dollars ” or “ $ ” means U.S. dollars.

(c)             Exhibits and Schedules .  Unless otherwise expressly indicated, any reference in this Agreement to an “ Exhibit ” or a “ Schedule ” refers to an Exhibit or Schedule to this Agreement.  The Exhibits and Schedules to this Agreement are hereby incorporated and made a part hereof as if set forth in full herein and are an integral part of this Agreement.  Any capitalized terms used in any Schedule or Exhibit but not otherwise defined therein are defined as set forth in this Agreement.

(d)            Gender and Number .  Any reference in this Agreement to gender includes all genders, and the meaning of defined terms applies to both the singular and the plural of those terms.

(e)             Headings .  The provision of a Table of Contents, the division of this Agreement into Articles, Sections, and other subdivisions, and the insertion of headings are for convenience of reference only and do not affect, and will not be utilized in construing or

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interpreting, this Agreement.  All references in this Agreement to any “ Section ” are to the corresponding Section of this Agreement unless otherwise specified.

(f)             “ Herein .”  The words such as “ herein ,” “ hereinafter ,” “ hereof ,” and “ hereunder ” refer to this Agreement (including the Schedules and Exhibits to this Agreement) as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.

(g)            “ Including .”  The word “ including ” or any variation thereof means “ including, without limitation ” and does not limit any general statement that it follows to the specific or similar items or matters immediately following it.

(h)            Agreements and Documents .  Each reference in this Agreement to any agreement or document or a portion or provision thereof shall be construed as a reference to the relevant agreement or document as amended, supplemented or otherwise modified from time to time with the written approval of both Parties.

(i)              Governmental Requirements .  Each reference in this Agreement to Governmental Requirements and to terms defined in, and other provisions of, Governmental Requirements shall be references to the same (or a successor to the same) as amended, supplemented or otherwise modified from time to time.

(j)              Days; Years .  Each reference in this Agreement to:  (A) “ day ” means a calendar day; and (B) “ year ” means a calendar year, provided that when a period measured in years commences on a day other than the first day of a year, the period shall run from the day on which it starts to the corresponding day in the next year and, as appropriate, to succeeding years thereafter.

1.3              Joint Negotiation and Preparation of Agreement .  The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as jointly drafted by the Parties and no presumption or burden of proof favoring or disfavoring any Party will exist or arise by virtue of the authorship of any provision of this Agreement.

Article II
PURCHASE AND SALE

2.1              Purchase and Sale .

(a)             PacifiCorp Acquired Assets .  Subject to the terms and conditions set forth in this Agreement, at the Closing, Idaho Power shall sell, assign, convey, transfer and deliver to PacifiCorp, and PacifiCorp shall purchase and accept from Idaho Power, free and clear of all Encumbrances (other than Idaho Power Permitted Encumbrances), (i) an undivided ownership interest, as tenant in common, equal to PacifiCorp’s Hemingway Ownership Interest in all of Idaho Power’s right, title, and interest in, and to, the assets constituting the Hemingway Substation Facilities and the Hemingway Transferable Permits (if any) and (ii) the Hemingway Easements, but excluding the Idaho Power Excluded Assets (collectively, the “ PacifiCorp Acquired Assets ”).

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(b)            Idaho Power Acquired Assets .  Subject to the terms and conditions set forth in this Agreement, at the Closing, PacifiCorp shall sell, assign, convey, transfer and deliver to Idaho Power, and Idaho Power shall purchase and accept from PacifiCorp, free and clear of all Encumbrances (other than PacifiCorp Permitted Encumbrances), (i) an undivided ownership interest, as tenant in common, equal to Idaho Power’s Populus Ownership Interest in all of PacifiCorp’s right, title, and interest in, and to, the assets constituting the Populus Substation Facilities and the Populus Transferable Permits (if any) and (ii) the Populus Easements, but excluding the PacifiCorp Excluded Assets (collectively, the “ Idaho Power Acquired Assets ”).

2.2              Excluded Assets .

(a)             Idaho Power Excluded Assets .  The PacifiCorp Acquired Assets do not include any property or assets of Idaho Power not described in Section 2.1(a) and, notwithstanding any provision to the contrary in Section 2.1(a) or elsewhere in this Agreement, the PacifiCorp Acquired Assets do not include the following property or assets of Idaho Power (all assets excluded pursuant to this Section 2.2(a) , the “ Idaho Power Excluded Assets ”), and PacifiCorp shall have no liability with respect thereto:

(i)                 the Idaho Power Marks;

(ii)               all cash, cash equivalents, bank deposits, accounts receivable, and any income, sales, payroll or other tax receivables;

(iii)             subject to Section 2.8 , any refund or credit (A) related to Taxes paid by or on behalf of Idaho Power, whether such refund is received as a payment or as a credit against future Taxes payable, or (B) relating to a period before the Closing Date;

(iv)             all of the Claims of Idaho Power against any Person related to, arising from or associated with the PacifiCorp Acquired Assets relating to a period before the Closing Date;

(v)               all insurance policies, and rights thereunder, including any such policies and rights in respect of the PacifiCorp Acquired Assets;

(vi)             the rights of Idaho Power arising under or in connection with this Agreement, any Related Document delivered in connection herewith, and any of the transactions contemplated hereby and thereby;

(vii)           all Contracts entered into by Idaho Power related to, arising from or associated with the PacifiCorp Acquired Assets;

(viii)         all software, software licenses, information systems, management systems owned or used by Idaho Power related to, arising from or associated with the PacifiCorp Acquired Assets;

(ix)             all communication towers, equipment and related assets of Idaho Power related to, arising from or associated with the PacifiCorp Acquired Assets , other than

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certain relays, communication equipment associated with power line carriers, and the cables between the 500 kV equipment and the panels, which relays, communication equipment, 500kV equipment and panels are located at the Hemingway Substation and listed in Exhibit A attached hereto; and

(x)               all other assets and properties of Idaho Power other than the PacifiCorp Acquired Assets.

(b)            PacifiCorp Excluded Assets .  The Idaho Power Acquired Assets do not include any property or assets of PacifiCorp not described in Section 2.1(b) and, notwithstanding any provision to the contrary in Section 2.1(b) or elsewhere in this Agreement, the Idaho Power Acquired Assets do not include the following property or assets of PacifiCorp (all assets excluded pursuant to this Section 2.2(b) , the “ PacifiCorp Excluded Assets ”), and Idaho Power shall have no liability with respect thereto: 

(i)                 the PacifiCorp Marks;

(ii)               all cash, cash equivalents, bank deposits, accounts receivable, and any income, sales, payroll or other tax receivables;

(iii)             subject to Section 2.8 , any refund or credit (A) related to Taxes paid by or on behalf of PacifiCorp, whether such refund is received as a payment or as a credit against future Taxes payable, or (B) relating to a period before the Closing Date;

(iv)             all of the Claims of PacifiCorp against any Person related to, arising from or associated with the Idaho Power Acquired Assets relating to a period before the Closing Date;

(v)               all insurance policies, and rights thereunder, including any such policies and rights in respect of the Idaho Power Acquired Assets;

(vi)             the rights of PacifiCorp arising under or in connection with this Agreement, any Related Document delivered in connection herewith, and any of the transactions contemplated hereby and thereby;

(vii)           all Contracts entered into by PacifiCorp related to, arising from or associated with the Idaho Power Acquired Assets;

(viii)         all software, software licenses, information systems, management systems owned or used by PacifiCorp related to, arising from or associated with the Idaho Power Acquired Assets;

(ix)             all communication towers, equipment and related assets of PacifiCorp related to, arising from or associated with the Idaho Power Acquired Assets; and

(x)               all other assets and properties of PacifiCorp other than the Idaho Power Acquired Assets.

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2.3              Assumed Obligations .

(a)             PacifiCorp Assumed Obligations .  Effective as of the Effective Time, PacifiCorp shall assume all Liabilities (other than Idaho Power Excluded Liabilities), solely to the extent applicable to any period after the Closing, related to, arising from or associated with the PacifiCorp Acquired Assets, in each case, to the extent of PacifiCorp’s Hemingway Ownership Interest (collectively, the “ PacifiCorp Assumed Obligations ”).

(b)            Idaho Power Assumed Obligations .  Effective as of the Effective Time, Idaho Power shall assume all Liabilities (other than the PacifiCorp Excluded Liabilities), solely to the extent applicable to any period after the Closing, related to, arising from or associated with the Idaho Power Acquired Assets, in each case, to the extent of Idaho Power’s Populus Ownership Interest (collectively, the “ Idaho Power Assumed Obligations ”).

2.4              Excluded Liabilities .

(a)             Idaho Power Excluded Liabilities .  Except for the PacifiCorp Assumed Obligations as set forth in Section 2.3(a) and Taxes as prorated pursuant to Section 2.8 , Idaho Power shall retain and remain fully responsible for, and PacifiCorp does not assume and shall have no responsibility or liability for, and will not be obligated to pay, perform, or otherwise discharge any Liabilities of Idaho Power or its Affiliates or any present or former owner or operator thereof, associated with, or arising from, any of the PacifiCorp Acquired Assets which have arisen, been accrued or incurred, or are otherwise based on events taking place, prior to and as of the Closing (collectively, the “ Idaho Power Excluded Liabilities ”), including the following:

(i)                 any Liabilities of Idaho Power to the extent related to any Idaho Power Excluded Assets or other assets which are not PacifiCorp Acquired Assets and the ownership, operation and conduct of any business in connection therewith or therefrom;

(ii)               any Liabilities in respect of Taxes of Idaho Power or any Tax Affiliate of Idaho Power, or any liability of Idaho Power for unpaid Taxes of any Person under Treasury Regulation Section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, including any Taxes relating to, pertaining to or arising from the PacifiCorp Acquired Assets for periods (or portions thereof) ending on or prior to the Closing Date, except for Taxes for which PacifiCorp is liable pursuant to Section 2.8 ;

(iii)             any Liabilities in respect of any employees of Idaho Power or its Affiliates, including any obligations of Idaho Power for benefits, bonuses, wages, employment Taxes, or severance pay and any liability or obligations arising under any employee benefit plan;

(iv)             any Liabilities relating to the disposal, storage, transportation, discharge, Release, recycling, or the arrangement for such activities, by Idaho Power, of Hazardous Materials prior to the Closing Date;

 

 

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(v)               Liabilities relating to any properties (other than PacifiCorp Acquired Assets) formerly owned or operated by Idaho Power or its Affiliates or predecessors prior to the Closing;

(vi)             Liabilities arising from any Claim (including any workers compensation Claim) related to the PacifiCorp Acquired Assets which have arisen, been accrued or incurred, or are otherwise based on events taking place, prior to and as of the Closing;

(vii)           any Liabilities of Idaho Power arising under or in connection with this Agreement, any Related Document delivered in connection herewith, and any of the transactions contemplated hereby and thereby;

(viii)         any Liabilities, including fines, penalties or costs imposed by a Governmental Entity, and the costs of any associated defense or response, with respect to any of the PacifiCorp Acquired Assets resulting from an investigation, proceeding, request for information or inspection before or by a Governmental Entity whether pending or commencing on, prior to or after the Closing Date, to the extent based on events or conditions occurring or existing in connection with, or arising out of, or otherwise relating to, the PacifiCorp Acquired Assets or the ownership, possession, use, operation, sale or other disposition thereof on or prior to the Closing Date (or any other assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the PacifiCorp Acquired Assets), or actions taken or omissions to act made on or prior to the Closing Date;

(ix)             any Liabilities relating to the PacifiCorp Acquired Assets (or any other assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the PacifiCorp Acquired Assets), to the extent based on events or conditions occurring or existing on or prior to the Closing Date and arising out of or relating to (A) any dispute arising out of or in connection with capacity of or energy provided or services rendered from the PacifiCorp Acquired Assets, including claims for refunds, personal injury or property damage, (B) claims relating to employee health and safety, including claims for injury, sickness, disease or death of any Person, (C) any lien described in clause (d) of the definition of Idaho Power Permitted Encumbrances or any unpaid sums for which any such liens shall have arisen, (D) claims by any Person utilized or retained for services or work related to or in support of the PacifiCorp Acquired Assets, or (E) compliance with any Governmental Requirements relating to any of the foregoing;

(x)               any Liabilities relating to, based in whole or in part on events or conditions occurring or existing in connection with, or arising out of, the PacifiCorp Acquired Assets as operated on or prior to the Closing Date, or the design, construction, ownership, possession, use, or operation of the PacifiCorp Acquired Assets, on or before the Closing Date;

(xi)             any Liability representing indebtedness for money borrowed (and any refinancing thereof); and

(xii)           all other pre-Closing Liabilities of Idaho Power, of whatever nature.

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(b)            PacifiCorp Excluded Liabilities .  Except for the Idaho Power Assumed Obligations as set forth in Section 2.3(b) and Taxes as prorated pursuant to Section 2.8 , PacifiCorp shall retain and remain fully responsible for, and Idaho Power does not assume and shall have no responsibility or liability for, and will not be obligated to pay, perform, or otherwise discharge any Liabilities of PacifiCorp or its Affiliates or any present or former owner or operator thereof, associated with, or arising from, any of the Idaho Power Acquired Assets which have arisen, been accrued or incurred, or are otherwise based on events taking place, prior to and as of the Closing (collectively, the “ PacifiCorp Excluded Liabilities ”), including the following:

(i)                 any Liabilities of PacifiCorp to the extent related to any PacifiCorp Excluded Assets or other assets which are not Idaho Power Acquired Assets and the ownership, operation and conduct of any business in connection therewith or therefrom;

(ii)               any Liabilities in respect of Taxes of PacifiCorp or any Tax Affiliate of PacifiCorp, or any liability of PacifiCorp for unpaid Taxes of any Person under Treasury Regulation Section 1.1502-6 (or similar provision of state, local, or foreign law) as a transferee or successor, by contract or otherwise, including any Taxes relating to, pertaining to or arising from the Idaho Power Acquired Assets for periods (or portions thereof) ending on or prior to the Closing Date, except for Taxes for which Idaho Power is liable pursuant to Section 2.8 ;

(iii)             any Liabilities in respect of any employees of PacifiCorp or its Affiliates, including any obligations of PacifiCorp for benefits, bonuses, wages, employment Taxes, or severance pay and any liability or obligations arising under any employee benefit plan;

(iv)             any Liabilities relating to the disposal, storage, transportation, discharge, Release, recycling, or the arrangement for such activities, by PacifiCorp, of Hazardous Materials prior to the Closing Date;

(v)               Liabilities relating to any properties (other than Idaho Power Acquired Assets) formerly owned or operated by PacifiCorp or its Affiliates or predecessors prior to the Closing;

(vi)             Liabilities arising from any Claim (including any workers compensation Claim) related to the Idaho Power Acquired Assets which have arisen, been accrued or incurred, or are otherwise based on events taking place, prior to and as of the Closing;

(vii)           any Liabilities of PacifiCorp arising under or in connection with this Agreement, any Related Document delivered in connection herewith, and any of the transactions contemplated hereby and thereby;

(viii)         any Liabilities, including fines, penalties or costs imposed by a Governmental Entity, and the costs of any associated defense or response, with respect to any of the Idaho Power Acquired Assets resulting from an investigation, proceeding, request for information or inspection before or by a Governmental Entity whether pending or commencing on, prior to or after the Closing Date, to the extent based on events or conditions occurring or

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existing in connection with, or arising out of, or otherwise relating to, the Idaho Power Acquired Assets or the ownership, possession, use, operation, sale or other disposition thereof on or prior to the Closing Date (or any other assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the Idaho Power Acquired Assets), or actions taken or omissions to act made on or prior to the Closing Date;

(ix)             any Liabilities relating to the Idaho Power Acquired Assets (or any other assets, properties, rights or interests associated, at any time on or prior to the Closing Date, with the Idaho Power Acquired Assets), to the extent based on events or conditions occurring or existing on or prior to the Closing Date and arising out of or relating to (A) any dispute arising out of or in connection with capacity of or energy provided or services rendered from the Idaho Power Acquired Assets, including claims for refunds, personal injury or property damage, (B) claims relating to employee health and safety, including claims for injury, sickness, disease or death of any Person, (C) any lien described in clause (D) of the definition of PacifiCorp Permitted Encumbrances or any unpaid sums for which any such liens shall have arisen, (D) claims by any Person utilized or retained for services or work related to or in support of the Idaho Power Acquired Assets, or (E) compliance with any Governmental Requirements relating to any of the foregoing;

(x)               any Liabilities relating to, based in whole or in part on events or conditions occurring or existing in connection with, or arising out of, the Idaho Power Acquired Assets as operated on or prior to the Closing Date, or the design, construction, ownership, possession, use, or operation of the Idaho Power Acquired Assets, on or before the Closing Date;

(xi)             any Liability representing indebtedness for money borrowed (and any refinancing thereof); and

(xii)           all other pre-Closing Liabilities of PacifiCorp, of whatever nature.

2.5              Non-Assignable Assets .

(a)             Idaho Power Nonassignable Item .  Notwithstanding anything in this Agreement to the contrary, to the extent that the assignment of all or any portion of any Hemingway Transferable Permit (if any) shall be prohibited by Governmental Requirement or the terms thereof, or require the consent of the other party thereto (if any) or any other third party, and any consent or waiver in connection with such prohibition or requirement is not obtained (which Idaho Power hereby agrees to use Commercially Reasonable Efforts to promptly obtain), (i) this Agreement shall not constitute an agreement to assign any such Hemingway Transferable Permit included in the PacifiCorp Acquired Assets (each, an “ Idaho Power Nonassignable Item ”), and (ii) no breach of this Agreement shall have occurred by virtue of such nonassignment.  Idaho Power agrees that on and after the Closing, it will use its Commercially Reasonable Efforts (A) to provide PacifiCorp with the benefits of and to preserve for the benefit of PacifiCorp the rights of Idaho Power under such Idaho Power Nonassignable Items to the extent of PacifiCorp’s Hemingway Ownership Interest and (B) to facilitate receipt of any consideration which may be received by Idaho Power in and under every such Idaho Power Nonassignable Item, which consideration, to the extent received, shall be held for the benefit of, and shall be delivered to, PacifiCorp to the extent of PacifiCorp's

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Hemingway Ownership Interest; provided, however, that nothing in this Section 2.5(a) shall require Idaho Power to make any material expenditure or incur any material obligation on its own or on PacifiCorp’s behalf.

(b)            PacifiCorp Nonassignable Item .  Notwithstanding anything in this Agreement to the contrary, to the extent that the assignment of all or any portion of any Populus Transferable Permit (if any) shall be prohibited by Governmental Requirement or the terms thereof, or require the consent of the other party thereto (if any) or any other third party, and any consent or waiver in connection with such prohibition or requirement is not obtained (which PacifiCorp hereby agrees to use Commercially Reasonable Efforts to promptly obtain), (i) this Agreement shall not constitute an agreement to assign any such Populus Transferable Permit included in the Idaho Power Acquired Assets (each, a “ PacifiCorp Nonassignable Item ”), and (ii) no breach of this Agreement shall have occurred by virtue of such nonassignment.  PacifiCorp agrees that on and after the Closing, it will use its Commercially Reasonable Efforts (A) to provide Idaho Power with the benefits of and to preserve for the benefit of Idaho Power the rights of PacifiCorp under such PacifiCorp Nonassignable Items to the extent of Idaho Power Populus Ownership Interest and (B) to facilitate receipt of any consideration which may be received by PacifiCorp in and under every such PacifiCorp Nonassignable Item, which consideration, to the extent received, shall be held for the benefit of, and shall be delivered to, Idaho Power to the extent of Idaho Power’s Populus Ownership Interest; provided , however , that nothing in this Section 2.5(b) shall require PacifiCorp to make any material expenditure or incur any material obligation on its own or on Idaho Power’s behalf.

(c)             The provisions of this Section 2.5 shall survive the expiration or termination of this Agreement.

2.6              Consideration

(a)             Not less than two (2) Business Days before the Closing Date, or at such other time as may be mutually agreed upon by the Parties in writing, Idaho Power shall deliver to PacifiCorp a written notice setting forth Idaho Power’s good faith estimate of PacifiCorp’s Hemingway Ownership Interest in the total Costs incurred and paid to date for construction of the Hemingway Substation Facilities, such estimated amount being, subject to Sections 2.6(c) and 2.6(d) , the total consideration to be paid by PacifiCorp to Idaho Power at Closing for the PacifiCorp Acquired Assets (the “ PacifiCorp Purchase Price ”).  The notice provided under this Section 2.6(a) shall provide sufficient detail on the calculation of the PacifiCorp Purchase Price reasonably to permit an audit of such Purchase Price subsequent to Closing in accordance with Section 2.6(d) hereof.

(b)            Not less than two (2) Business Days before the Closing Date or at such other time as may be mutually agreed upon by the Parties in writing, PacifiCorp shall deliver to Idaho Power a written notice setting forth PacifiCorp’s good faith estimate of Idaho Power’s Populus Ownership Interest in the total Costs incurred and paid to date for construction of the Populus Substation Facilities, such estimated amount being, subject to Sections 2.6(c) and 2.6(d) , the total consideration to be paid by Idaho Power to PacifiCorp at Closing for the Idaho Power Acquired Assets (the “ Idaho Power Purchase Price ”).  The notice provided under this

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Section 2.6(b) shall provide sufficient detail on the calculation of the Idaho Power Purchase Price reasonably to permit an audit of such Purchase Price subsequent to Closing in accordance with Section 2.6(d) hereof.

(c)        At Closing, the Idaho Power Purchase Price shall be netted against the PacifiCorp Purchase Price and the Party whose Purchase Price pursuant to Section 2.6(a) or Section 2.6(b) is greater shall pay the difference between the two Purchase Prices to the other Party by wire transfer in immediately available funds, in the lawful currency of the United States, to an account or accounts designated by the other Party; provided , however , that not more than one hundred, eighty (180) days after the Closing, (A) Idaho Power shall deliver to PacifiCorp a written notice setting forth PacifiCorp’s Hemingway Ownership Interest in the total Costs incurred and paid for construction of the Hemingway Substation Facilities from the date of the notice provided under Section 2.6(a) until the Closing Date as well as any Costs incurred and paid for construction of the Hemingway Substation Facilities not previously identified in the notice provided under Section 2.6(a) (the “ Idaho Power True-up Notice ”), and (B) PacifiCorp shall deliver to Idaho Power a written notice setting forth Idaho Power’s Populus Ownership Interest in the total Costs incurred and paid for construction of the Populus Substation Facilities from the date of the notice provided under Section 2.6(b) until the Closing Date as well as any Costs incurred and paid for construction of the Populus Substation Facilities not previously identified in the notice provided under Section 2.6(b) (the “ PacifiCorp True-up Notice ”).  Not more than five (5) Business Days after delivery of the later of the Idaho Power True-up Notice or the PacifiCorp True-up Notice, the Parties shall net the costs set forth in the respective True-up Notices and the Party whose True-up Notice identifies the higher amount shall receive from the other Party a payment of the difference by wire transfer in immediately available funds, in the lawful currency of the United States, to an account or accounts designated by such Party.

(d)(i)(A)          Not earlier than the date of the later of the Idaho Power True-up Notice or the PacifiCorp True-up Notice, nor more than two hundred, seventy (270) days after the Closing Date, PacifiCorp may, at its own cost, at any time during normal business hours and with reasonable notice of not less than ten (10) Business Days to Idaho Power, audit the books and records of Idaho Power and any of its Affiliates involved with the construction of the Hemingway Substation Facilities (“ PacifiCorp Acquired Assets Cost Records ”) to the extent reasonably related to the Costs incurred by or on behalf of Idaho Power and its Affiliates in connection with the construction of the Hemingway Substation Facilities (“ PacifiCorp Acquired Assets Costs ”).  Not earlier than the date of the later of the Idaho Power True-up Notice or the PacifiCorp True-up Notice, nor more than two hundred, seventy (270) days after the Closing Date, Idaho Power may, at its own cost, at any time during normal business hours and with reasonable notice of not less than ten (10) Business Days to PacifiCorp, audit the books and records of PacifiCorp and any of its Affiliates involved with the construction of the Populus Substation Facilities (“ Idaho Power Acquired Assets Cost Records ”) to the extent reasonably related to the Costs incurred by or on behalf of PacifiCorp and its Affiliates in connection with the construction of the Populus Substation Facilities (“ Idaho Power Acquired Assets Costs ”).

(d)(i)(B)           If any audit conducted pursuant to Section 2.6(d)(i)(A) discloses that the PacifiCorp Acquired Assets Costs differ from the Costs used for determining the PacifiCorp Purchase Price pursuant to this Section 2.6 , or that the Idaho Power Acquired Assets Costs differ from the Costs used for purposes of determining the Idaho Power Purchase Price

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pursuant to this Section 2.6, then the Party conducting such audit shall notify the other Party in writing of such difference (the “Disputed Costs Notice”).  The Parties shall attempt, in good faith and for not less than thirty (30) days (or such longer period as the Parties may mutually agree in writing)] following the Disputed Costs Notice, to reach agreement on the appropriate amount of Costs to be used for purposes of determining the Idaho Power Purchase Price and the PacifiCorp Purchase Price, as applicable, and to adjust the Purchase Price paid under Section 2.6(c) to reflect such agreement.

(ii)        If the Parties are unable to reach agreement under Section 2.6(d)(i)(B) , then the Parties shall retain an Independent Accounting Firm to audit the Idaho Power Acquired Assets Costs and/or the PacifiCorp Acquired Assets Costs to determine the Idaho Power Purchase Price and/or the PacifiCorp Purchase Price, as applicable.  The decision of the Independent Accounting Firm shall be binding upon the Parties and final and the consideration provided pursuant to Section 2.6(c) shall be adjusted to reflect the results of the Independent Accounting Firm’s determination.  Each Party shall be liable for fifty percent (50%) of the Independent Accounting Firm’s charges.

(iii)       Each Party shall, and shall cause any of its relevant Affiliates to, keep and maintain all such PacifiCorp Acquired Assets Cost Records or Idaho Power Acquired Assets Costs Records, as applicable, to the extent reasonably related to the determination of PacifiCorp Acquired Assets Costs or Idaho Power Acquired Assets Costs, as applicable, and make such records available to the other Party and, if applicable, the Independent Accounting Firm, in accordance with the terms of this Agreement.  The Party requesting the audit shall reimburse one hundred percent (100%) of all reasonable costs and expenses (including internal costs and expenses) incurred by or on behalf of the other Party and any of its Affiliates in complying with the provisions of this Section 2.6(d)(iii) , provided that each Party shall be liable for fifty percent (50%) of any such costs incurred by either Party and its Affiliates in complying with a request by the Independent Accounting Firm.

2.7              [Intentionally omitted.]

2.8              Proration

(a)             PacifiCorp Acquired Assets .  All Taxes (but not including Transfer Taxes) and pre-paid expenses (including security deposits), in each case, to the extent relating to the PacifiCorp Acquired Assets, will be prorated as of the Effective Time, with Idaho Power liable to the extent such items relate to any period prior to the Effective Time, and PacifiCorp and Idaho Power each liable to the extent such items relate to any period from and after the Effective Time in accordance with their respective Hemingway Ownership Interests.

(b)            Idaho Power Acquired Assets .  All Taxes (but not including Transfer Taxes) and pre-paid expenses (including security deposits), in each case, to the extent relating to the Idaho Power Acquired Assets, will be prorated as of the Effective Time, with PacifiCorp liable to the extent such items relate to any period prior to the Effective Time, and PacifiCorp and Idaho Power each liable to the extent such items relate to any period from and after the Effective Time in accordance with their respective Populus Ownership Interests.

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(c)             Transfer Taxes .  The aggregate amount of all Transfer Taxes, if any, to the extent relating to the PacifiCorp Acquired Assets and the Idaho Power Acquired Assets will be shared equally by the Parties.  Idaho Power will file, to the extent required by applicable Governmental Requirements, all necessary Tax Returns and other documentation with respect to all such Transfer Taxes relating to the PacifiCorp Acquired Assets, and if required by applicable Governmental Requirements, PacifiCorp will join in the execution of any such Tax Returns or other documentation, provided that PacifiCorp shall first have an opportunity to review and approve (such approval not to be unreasonably withheld) such Tax Returns.  PacifiCorp will file, to the extent required by applicable Governmental Requirements, all necessary Tax Returns and other documentation with respect to all such Transfer Taxes relating to the Idaho Power Acquired Assets, and if required by applicable Governmental Requirements, Idaho Power will join in the execution of any such Tax Returns or other documentation, provided that Idaho Power shall first have an opportunity to review and approve (such approval not to be unreasonably withheld) such Tax Returns.

2.9              Time and Place of Closing .  Unless this Agreement is terminated early in accordance with Section 5.1 , and upon the terms and subject to the satisfaction of the conditions contained in Section 2.11 (or waiver thereof as provided therein), the closing of purchase and sale of the PacifiCorp Acquired Assets and the Idaho Power Acquired Assets and assumption by PacifiCorp of the PacifiCorp Assumed Obligations and the assumption by Idaho Power of the Idaho Power Assumed Obligations (the “ Closing ”) will take place at the offices of Troutman Sanders LLP, 401 9 th Street, N.W., Suite 1000, Washington, D.C.  20004, at 10:00 a.m., local time, on the second (2nd) Business Day following the date on which the conditions set forth in Section 2.11 (other than conditions to be satisfied by deliveries at the Closing) have been satisfied or waived, or at such other place and time as the Parties may mutually agree in writing.  The date on which the Closing occurs is referred to herein as the “ Closing Date .”  The purchase and sale of the PacifiCorp Acquired Assets and the Idaho Power Acquired Assets and the assumption by PacifiCorp of the PacifiCorp Assumed Obligations and the assumption by Idaho Power of the Idaho Power Assumed Obligations will be effective as of 12:00:01 a.m., Pacific time on the Closing Date (the “ Effective Time ”).

2.10          Closing Deliverables .

(a)             Deliveries by Idaho Power .  At or prior to the Closing, Idaho Power will deliver to PacifiCorp (in form and substance reasonably acceptable to PacifiCorp), each of the following:

(i)                 a bill of sale for the Hemingway Substation Facilities (“ Hemingway Bill of Sale ”) in the form attached hereto as Exhibit C , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by Idaho Power;

(ii)               in the event that there are any Hemingway Transferable Permits, an assignment and assumption agreement (“ Hemingway Assignment and Assumption Agreement ”) in the form attached hereto as Exhibit E , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by Idaho Power;

 

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(iii)             in the event that there are any Populus Transferable Permits, an assignment and assumption agreement (“ Populus Assignment and Assumption Agreement ” in the form attached hereto as Exhibit F , or otherwise in form and substance satisfactory to the Parties, duly executed by Idaho Power;

(iv)             a joint ownership, operating and maintenance agreement with respect to the Hemingway Substation Facilities (the “ Hemingway Joint Ownership and Operating Agreement ”) in the form attached hereto as Exhibit G , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by Idaho Power;

(v)               a joint ownership, operating and maintenance agreement with respect to the Populus Substation Facilities (the “ Populus Joint Ownership and Operating Agreement ”) in the form attached hereto as Exhibit H , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by Idaho Power;

(vi)             one or more easement agreements (collectively, the “ Hemingway Easement Agreement ”) in the form attached hereto as Exhibit I , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by Idaho Power;

(vii)           one or more easement agreements (collectively, the “ Populus Easement Agreement ”) in the form attached hereto as Exhibit J , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by Idaho Power;

(viii)         a deed for the Hemingway Substation Facilities (the “ Hemingway Deed ”) in the form attached hereto as Exhibit M , or otherwise in form and substance satisfactory to the Parties, duly executed by Idaho Power.

(ix)             a certificate duly executed by an authorized officer or representative of Idaho Power, dated as of the Closing Date, certifying that each of the conditions set forth in Section 2.11(b)(i) and Section 2.11(b)(ii) has been satisfied as of the Closing Date;

(x)               copies of all Idaho Power Required Regulatory Approvals and any other consents, waivers or approvals obtained by Idaho Power from third parties in connection with this Agreement;

(xi)             all such other instruments of assignment or conveyance properly executed and acknowledged by Idaho Power in customary form as are reasonably requested by PacifiCorp in order to transfer to and vest in PacifiCorp PacifiCorp’s Hemingway Ownership Interest in all of Idaho Power’s right, title and interest in, to and under the Hemingway Substation Facilities and Hemingway Transferable Permits (if any) in accordance with this Agreement; and

(xii)           any other documents or instruments reasonably required by PacifiCorp to consummate the transactions contemplated hereby and reasonably requested of Idaho Power prior to the Closing Date.

 

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(b)            Deliveries by PacifiCorp .  At or prior to the Closing, PacifiCorp will deliver to Idaho Power (in form and substance reasonably acceptable to Idaho Power), each of the following:

(i)                 a bill of sale for the Populus Substation Facilities (“ Populus Bill of Sale ”) in the form attached hereto as Exhibit D , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by PacifiCorp;

(ii)               in the event that there are any Hemingway Transferable Permits, the Hemingway Assignment and Assumption Agreement in the form attached hereto as Exhibit E , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by PacifiCorp;

(iii)             in the event that there are any Populus Transferable Permits, the Populus Assignment and Assumption Agreement in the form attached hereto as Exhibit F , or otherwise in form and substance satisfactory to the Parties, duly executed by PacifiCorp;

(iv)             the Hemingway Joint Ownership and Operating Agreement in the form attached hereto as Exhibit G , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by PacifiCorp;

(v)               the Populus Joint Ownership and Operating Agreement in the form attached hereto as Exhibit H , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by PacifiCorp;

(vi)             the Hemingway Easement Agreement in the form attached hereto as Exhibit I , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by PacifiCorp;

(vii)           the Populus Easement Agreement in the form attached hereto as Exhibit J , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by PacifiCorp;

(viii)         a deed for the Populus Substation Facilities (the “ Populus Deed ” in the form attached hereto as Exhibit N , or otherwise in form and substance reasonably satisfactory to the Parties, duly executed by PacifiCorp.

(ix)             a certificate duly executed by an authorized officer or representative of PacifiCorp, dated as of the Closing Date, certifying that each of the conditions set forth in Section 2.11(a)(i) and Section 2.11(a)(ii) has been satisfied as of the Closing Date;

(x)               copies of all PacifiCorp Required Regulatory Approvals and any other consents, waivers or approvals obtained by PacifiCorp from third parties in connection with this Agreement;

(xi)             all such other instruments of assignment or conveyance properly executed and acknowledged by PacifiCorp in customary form as are reasonably requested by Idaho Power in order to transfer to and vest in Idaho Power Idaho Power’s Populus Ownership

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Interest in all of PacifiCorp’s right, title and interest in, to and under the Populus Substation Facilities and Populus Transferable Permits (if any) in accordance with this Agreement; and

(xii)           any other documents or instruments reasonably required by Idaho Power to consummate the transactions contemplated hereby and reasonably requested of PacifiCorp prior to the Closing Date.

2.11          Conditions Precedent to Closing .

(a)             Idaho Power’s Conditions Precedent .  Idaho Power’s obligation to sell and transfer to PacifiCorp the PacifiCorp Acquired Assets, and to purchase and accept from PacifiCorp the Idaho Power Acquired Assets, and to take the other actions required to be taken by Idaho Power at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived, in whole or in part, by Idaho Power in writing):

(i)                 Accuracy of Representations .  Except as provided in Section 4.6 , all representations and warranties made in this Agreement by PacifiCorp that are qualified with respect to materiality (whether by reference to Material Adverse Effect or otherwise) are true and correct, and all representations and warranties made in this Agreement by PacifiCorp that are not so qualified are true and correct in all material respects, in each case, as of the Closing Date by reference to the facts and circumstances then existing;

(ii)               PacifiCorp’s Performance .  PacifiCorp shall have complied in all material respects with all covenants and agreements made by it in Article IV to be performed prior to Closing;

(iii)             Delivery of Documents .  Each document and other item required to be delivered by PacifiCorp pursuant to Section 2.10(b) shall have been delivered to Idaho Power;

(iv)             Required Regulatory Approvals .  All Required Regulatory Approvals shall have been obtained and be in full force and effect, and the terms and conditions of the Required Regulatory Approvals, individually or in the aggregate, shall not have and shall not reasonably be expected to have a Material Adverse Effect on Idaho Power or any of its Affiliates;

(v)               No Prohibition .  Neither the consummation nor the performance of the Contemplated Transaction shall, directly or indirectly (with or without notice or lapse of time), materially contravene, or conflict with, or result in a material violation of, any Governmental Requirement or Governmental Authorization applicable to the Hemingway Substation or Idaho Power or any of its Affiliates;

(vi)             No Injunction .  No litigation or injunction shall be pending, threatened or reasonably likely to be commenced or issued (A) involving any challenge to, or seeking damages or other relief in connection with the Contemplated Transaction, (B) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with the

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Contemplated Transaction, or (C) imposing or seeking to impose material damages or sanctions directly arising out of the Contemplated Transaction on Idaho Power or any of its Affiliates;

(vii)           Release of Liens .  PacifiCorp shall have received all releases of liens and other Encumbrances, other than PacifiCorp Permitted Encumbrances, from lenders or other parties applicable to the Idaho Power Acquired Assets in form and substance reasonably satisfactory to Idaho Power;

(viii)         Energization .  As of the Closing Date, the Hemingway Substation and the Populus Substation shall never have been energized to the bulk power electric transmission system; and

(ix)             No Material Adverse Effect .  Since the Effective Date, no Material Adverse Effect on Idaho Power or any of its Affiliates shall have occurred and be continuing.

(b)            PacifiCorp’s Conditions Precedent .  PacifiCorp’s obligation to sell and transfer to Idaho Power the Idaho Power Acquired Assets, and to purchase and acquire from Idaho Power the PacifiCorp Acquired Assets, and to take the other actions required to be taken by PacifiCorp at the Closing is subject to the satisfaction, at or prior to the Closing, of each of the following conditions (any of which may be waived, in whole or in part, by PacifiCorp in writing):

(i)                 Accuracy of Representations .  Except as provided in Section 4.6 , all representations and warranties made in this Agreement by Idaho Power that are qualified with respect to materiality (whether by reference to Material Adverse Effect or otherwise) are true and correct, and all representations and warranties made in this Agreement by Idaho Power that are not so qualified are true and correct in all material respects, in each case, as of the Closing Date by reference to the facts and circumstances then existing;

(ii)               Idaho Power’s Performance .  Idaho Power shall have complied in all material respects with all covenants and agreements made by it in Article IV to be performed prior to Closing;

(iii)             Delivery of Documents .  Each document and other item required to be delivered by Idaho Power pursuant to Section 2.10(a) shall have been delivered to PacifiCorp;

(iv)             Required Regulatory Approvals .  All Required Regulatory Approvals shall have been obtained and be in full force and effect, and the terms and conditions of the Required Regulatory Approvals, individually or in the aggregate, shall not have and shall not reasonably be expected to have a Material Adverse Effect on PacifiCorp or any of its Affiliates;

(v)               No Prohibition .  Neither the consummation nor the performance of the Contemplated Transaction shall, directly or indirectly (with or without notice or lapse of time), materially contravene, or conflict with, or result in a material violation of, any Governmental Requirement or Governmental Authorization applicable to the Populus Substation or PacifiCorp or any of its Affiliates;

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(vi)             No Injunction .  No litigation or injunction shall be pending, threatened or reasonably likely to be commenced or issued (A) involving any challenge to, or seeking damages or other relief in connection with the Contemplated Transaction, (B) that may have the effect of preventing, delaying, making illegal, or otherwise interfering with the Contemplated Transaction, or (C) imposing or seeking to impose material damages or sanctions directly arising out of the Contemplated Transaction on PacifiCorp or any of its Affiliates;

(vii)           Release of Liens .  Idaho Power shall have received all releases of liens and other Encumbrances, other than Idaho Power Permitted Encumbrances, from lenders or other parties applicable to the PacifiCorp Acquired Assets in form and substance reasonably satisfactory to PacifiCorp;

(viii)         Energization .  As of the Closing Date, the Hemingway Substation and the Populus Substation shall never have been energized to the bulk power electric transmission system; and

(ix)             No Material Adverse Effect .  Since the Effective Date, no Material Adverse Effect on PacifiCorp or any of its Affiliates shall have occurred and be continuing.

2.12          Release of Mortgage Liens or other Encumbrances .

(a)        As soon as reasonably practicable following the Closing, but in any event, not later than thirty (30) days after the Closing Date, Idaho Power will obtain a release of the lien of the Idaho Power Mortgage on the PacifiCorp Acquired Assets and the “Jointly-Developed Transmission Facilities,” as defined in the Hemingway Joint Ownership and Operating Agreement.  The release shall be in form and substance reasonably acceptable to PacifiCorp and Idaho Power will promptly provide a copy of such release to PacifiCorp.

 

(b)        As soon as reasonably practicable following the Closing, but in any event, not later than thirty (30) days after the Closing Date, Idaho Power will use Commercially Reasonable Efforts to obtain a modification of the Hemingway BLM Right-of-Way Grant to add PacifiCorp as a party thereto eligible to exercise all rights and benefits enjoyed by Idaho Power thereunder.  The modification shall be in form and substance reasonably acceptable to PacifiCorp, and Idaho Power will promptly provide to PacifiCorp a copy of the Hemingway BLM Right-of-Way Grant as so modified.

 

(c)        As soon as reasonably practicable following the Closing, but in any event, not later than thirty (30) days after the Closing Date, PacifiCorp will obtain a release of the lien of the PacifiCorp Mortgage on the Idaho Power Acquired Assets and the “Jointly-Developed Transmission Facilities,” as defined in the Populus Joint Ownership and Operating Agreement.  The release shall be in form and substance reasonably acceptable to Idaho Power and PacifiCorp will promptly provide a copy of such release to Idaho Power.

 

(d)         The obligations under this Section 2.12 shall continue in full force and effect notwithstanding the occurrence of the Closing.

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Article III
REPRESENTATIONS AND WARRANTIES

3.1              Representations and Warranties of Idaho Power .   As an inducement to PacifiCorp to enter into this Agreement and to consummate the Contemplated Transactions hereby, Idaho Power represents and warrants to PacifiCorp as follows:

(a)             It is duly formed, validly existing and in good standing under the laws of the State of Idaho.

(b)            It has all necessary corporate power and authority to execute and deliver this Agreement and each Related Document to which it will be a party and to perform its obligations under this Agreement and each such Related Document, and the execution and delivery of this Agreement and each Related Document to which it will be a party and the performance by it of this Agreement and each such Related Document have been duly authorized by all necessary corporate action on its part.

(c)             The execution and delivery of this Agreement and each Related Document to which it will be a party and the performance by it of this Agreement and each such Related Document do not and will not: (i) violate its organizational documents; (ii) violate any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default of any material agreement to which it is a party.

(d)            This Agreement has been, and each Related Document to which it will be a party will be, duly and validly executed and delivered by it and constitutes, or will constitute upon execution, its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and by principles of equity regardless of whether such principles are considered in a proceeding at law or in equity.

(e)             Schedule 3.1(e) lists all material Governmental Authorizations required by Governmental Requirements to have been obtained by it as of the date hereof in connection with the (i) due execution and delivery of, and performance by it of its obligations under, this Agreement and each Related Document to which it will be a party, and the consummation of the Contemplated Transactions, and (ii) the ownership, use and operation of the Hemingway Acquired Assets and the Populus Acquired Assets as these facilities are reasonably expected to be owned, used and operated in accordance with the provisions of the Hemingway Joint Ownership and Operating Agreement and the Populus Joint Ownership and Operating Agreement on the date such facilities enter commercial operation (collectively, the “ Idaho Power Required Regulatory Approvals ”).  Except as disclosed in Schedule 3.1(e) , each of the Idaho Power Required Regulatory Approvals has been duly obtained or made and is valid, binding and in full force and effect.

(f)             Except as disclosed in Schedule 3.1(f) , there are no material Liabilities related to the PacifiCorp Acquired Assets, whether or not required by GAAP to be disclosed in a balance sheet, other than the lien of the Idaho Power Mortgage on the PacifiCorp Acquired

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Assets, which will be released after Closing in accordance with Section 2.12(a) hereof.  Except as set forth on Schedule 3.1(f) , Idaho Power does not have any obligations (absolute or contingent) related to the PacifiCorp Acquired Assets to provide funds on behalf of, or to guarantee any debt, liability or obligation of, any Person.

(g)            Except as set forth on Schedule 3.1(g) , (i) Idaho Power owns good and marketable title to the PacifiCorp Acquired Assets and (ii) Idaho Power owns good and marketable title in fee or good and marketable leasehold title to the Hemingway Substation Site and there exists no Encumbrances (other than Idaho Power Permitted Encumbrances) applicable to the Hemingway Substation Site that would restrict the ownership, use or operation of the Hemingway Substation (as those facilities are reasonably expected to be operated in accordance with the provisions of the Hemingway Joint Ownership and Operating Agreement on the date the facilities enter commercial operation) or the grant of the Hemingway Easements provided for in the Hemingway Easement Agreement, and (iii) there exists no defaults or events which with the passage of time or the giving of notice or both would become a default) under the Hemingway BLM Right-of-Way Grant.

(h)            Environmental .

(i)                 Schedule 3.1(h)(i)-A sets forth a list of all material Environmental Permits held by Idaho Power for the operation of the PacifiCorp Acquired Assets.  Except as set forth on Schedule 3.1(h)(i)-B , (1) Idaho Power (to the extent related to the PacifiCorp Acquired Assets) is in compliance with all applicable Environmental Laws, (2) to Idaho Power’s Knowledge, Idaho Power possesses all Environmental Permits required under Environmental Laws for the operation of the PacifiCorp Acquired Assets (as these facilities are reasonably expected to be operated in accordance with the provisions of the Hemingway Joint Ownership and Operating Agreement on the date the facilities enter commercial operation) and is in compliance with such Environmental Permits; and (3) Idaho Power has received no written notice that any Environmental Permit required under Environmental Laws for the operation of the PacifiCorp Acquired Assets is subject to termination, modification or revocation.

(ii)               Except as set forth on Schedule 3.1(h)(ii) , to Idaho Power’s Knowledge neither Idaho Power nor any Affiliate of Idaho Power has received within the last five (5) years and at any prior time, any written notice, report, request for information or other information regarding any actual or alleged violation of Environmental Laws or any Liabilities or potential Liabilities, including any investigatory, remedial, or corrective obligations, relating to the operation of the PacifiCorp Acquired Assets arising under or relating to Environmental Laws or regarding Hazardous Materials.

(iii)             Except as set forth on Schedule 3.1(h)(iii) , (1) to Idaho Power’s Knowledge, Idaho Power has not caused any Release, and there is and has been no other Release from, in, on, beneath, or affecting the PacifiCorp Acquired Assets that could form a basis for an Environmental Claim, and (2) Idaho Power has not received written notice of any Environmental Claims related to the PacifiCorp Acquired Assets that have not been fully and finally resolved and, to Idaho Power’s Knowledge, no such Environmental Claims are pending or threatened against Idaho Power.

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(iv)             Except as set forth on Schedule 3.1(h)(iv) , to Idaho Power’s Knowledge there are and have been no underground storage tanks, and there are no asbestos-containing building materials or poly-chlorinated biphenyls owned, leased, used, operated or maintained by Idaho Power or, to Idaho Power’s Knowledge, otherwise located on any of the PacifiCorp Acquired Assets.

(v)               Except as set forth on Schedule 3.1(h)(v) , with respect to the PacifiCorp Acquired Assets, to Idaho Power’s Knowledge within the last five (5) years and at any prior time, Idaho Power has not assumed or retained, by contract or, to Idaho Power’s Knowledge, by operation of law, any obligation under any Environmental Law or concerning any Hazardous Materials with respect to the PacifiCorp Acquired Assets.

(vi)             Schedule 3.1(h)(vi) lists all of the material environmental reports relating to the PacifiCorp Acquired Assets that are in the possession or reasonable control of Idaho Power, copies of which have been made available to PacifiCorp.

(i)              [Intentionally omitted.]

(j)              No broker, finder, or other Person is entitled to any brokerage fees, commissions, or finder’s fees for which PacifiCorp could become liable or obligated in connection with the Contemplated Transactions by reason of any action taken by Idaho Power or its Affiliates.

(k)            Except as set forth in Schedule 3.1(k) , Idaho Power does not own, or directly license from a third party, any Intellectual Property used in or necessary for the ownership, use and operation of the PacifiCorp Acquired Assets (as these facilities are reasonably expected to be operated in accordance with the provisions of the Hemingway Joint Ownership and Operating Agreement on the date the facilities enter commercial operation) in accordance with Good Utility Practice and Governmental Requirements that is not part of the PacifiCorp Acquired Assets.

(l)              Material Contracts Schedule 3.1(l) sets forth a true, accurate and complete list of each of the material contracts and other agreements to which Idaho Power or any of its Affiliates is a party and which provides for the design, engineering, procurement, construction, installation and/or commissioning of the Hemingway Substation Facilities (the “ Hemingway Substation Facilities Contracts ”).  Except as set forth on Schedule 3.1(l) , to Idaho Power’s Knowledge, each of the Hemingway Substation Facilities Contracts is in full force and effect, and is valid, binding and enforceable in accordance with its terms.

3.2              Representations and Warranties of PacifiCorp .  As an inducement to Idaho Power to enter into this Agreement and to consummate the transactions contemplated hereby, PacifiCorp represents and warranties to Idaho Power as follows:

(a)             It is duly formed, validly existing and in good standing under the laws of the State of Oregon.

 

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(b)            It has all necessary corporate power and authority to execute and deliver this Agreement and each Related Document to which it will be a party and to perform its obligations under this Agreement and each such Related Document, and the execution and delivery of this Agreement and each Related Document to which it will be a party and the performance by it of this Agreement and each such Related Document have been duly authorized by all necessary corporate action on its part.

(c)             The execution and delivery of this Agreement and each Related Document to which it will be party and the performance by it of this Agreement and each such Related Document do not and will not: (i) violate its organizational documents; (ii) violate any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default of any material agreement to which it is a party.

(d)            This Agreement has been, and each Related Document to which it will be a party will be, duly and validly executed and delivered by it and, constitutes, or will constitute upon execution, its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and by principles of equity regardless of whether such principles are considered in a proceeding at law or in equity.

(e)             Schedule 3.2(e) lists all material Governmental Authorizations required by Governmental Requirements to have been obtained by it as of the date hereof in connection with the (i) due execution and delivery of, and performance by it of its obligations under, this Agreement and each Related Document to which it is a party, and the consummation of the Contemplated Transactions and (ii) the ownership, use and operation of the Hemingway Acquired Assets and the Populus Acquired Assets as those facilities are reasonably expected to be owned, used and operated in accordance with the provisions of the Hemingway Joint Ownership and Operating Agreement and the Populus Joint Ownership and Operating Agreement on the date such facilities enter commercial operation (collectively, the “ PacifiCorp Required Regulatory Approvals ”).  Except as disclosed in Schedule 3.2(e) , each of the PacifiCorp Required Regulatory Approvals has been duly obtained or made and is valid, binding and in full force and effect.

(f)             Except as disclosed in Schedule 3.2(f) , there are no material Liabilities related to the Idaho Power Acquired Assets, whether or not required by GAAP to be disclosed in a balance sheet, other than the lien of the PacifiCorp Mortgage on the Idaho Power Acquired Assets, which will be released after Closing in accordance with Section 2.12(b) hereof.  Except as set forth on Schedule 3.2(f) , PacifiCorp does not have any obligations (absolute or contingent) related to the Idaho Power Acquired Assets to provide funds on behalf of, or to guarantee any debt, liability or obligation of, any Person.

(g)            Except as set forth on Schedule 3.2(g) , (i) PacifiCorp owns good and marketable title to the Idaho Power Acquired Assets and (ii) PacifiCorp owns good and marketable title in fee to the Populus Substation Site and there exists no Encumbrances (other than PacifiCorp Permitted Encumbrances) applicable to the Populus Substation Site that would restrict the ownership, use or operation of the Populus Substation (as these facilities are reasonably expected to be operated in accordance with the provisions of the Populus Joint

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Ownership and Operating Agreement on the date the facilities enter commercial operation) or the grant of the Populus Easements provided for in the Populus Easement Agreement.

(h)            Environmental .

(i)                 Schedule 3.2(h)(i)-A sets forth a list of all material Environmental Permits held by PacifiCorp for the operation of the Idaho Power Acquired Assets.  Except as set forth on Schedule 3.2(h)(i)-B , (1) PacifiCorp (to the extent related to the Idaho Power Acquired Assets) is in compliance with all applicable Environmental Laws, (2) to PacifiCorp’s Knowledge, PacifiCorp possesses all Environmental Permits required under Environmental Laws for the operation of the Idaho Power Acquired Assets (as these facilities are reasonably expected to be operated in accordance with the provisions of the Populus Joint Ownership and Operating Agreement on the date the facilities enter commercial operation) and is in compliance with such Environmental Permits; and (3) PacifiCorp has received no written notice that any Environmental Permit required under Environmental Laws for the operation of the Idaho Power Acquired Assets is subject to termination, modification or revocation.

(ii)               Except as set forth on Schedule 3.2(h)(ii) , to PacifiCorp’s Knowledge neither PacifiCorp nor any Affiliate of PacifiCorp has received within the last five (5) years and at any prior time, any written notice, report, request for information or other information regarding any actual or alleged violation of Environmental Laws or any Liabilities or potential Liabilities, including any investigatory, remedial, or corrective obligations, relating to the operation of the Idaho Power Acquired Assets arising under or relating to Environmental Laws or regarding Hazardous Materials.

(iii)             Except as set forth on Schedule 3.2(h)(iii) , (1) to PacifiCorp’s Knowledge, PacifiCorp has not caused any Release, and there is and has been no other Release from, in, on, beneath, or affecting the Idaho Power Acquired Assets that could form a basis for an Environmental Claim, and (2) PacifiCorp has not received written notice of any Environmental Claims related to the Idaho Power Acquired Assets that have not been fully and finally resolved and, to PacifiCorp’s Knowledge, no such Environmental Claims are pending or threatened against PacifiCorp.

(iv)             Except as set forth on Schedule 3.2(h)(iv) , to PacifiCorp’s Knowledge there are and have been no underground storage tanks, and there are no asbestos-containing building materials or poly-chlorinated biphenyls owned, leased, used, operated or maintained by PacifiCorp or, to PacifiCorp’s Knowledge, otherwise located on any of the Idaho Power Acquired Assets.

(v)               Except as set forth on Schedule 3.2(h)(v) , with respect to the Idaho Power Acquired Assets, to PacifiCorp’s Knowledge within the last five (5) years and at any prior time, PacifiCorp has not assumed or retained, by contract or, to PacifiCorp’s Knowledge, by operation of law, any obligation under any Environmental Law or concerning any Hazardous Materials with respect to the Idaho Power Acquired Assets.

 

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(vi)             Schedule 3.2(h)(vi) lists all of the material environmental reports relating to the Idaho Power Acquired Assets that are in the possession or reasonable control of PacifiCorp, copies of which have been made available to Idaho Power.

(i)              [Intentionally omitted.]

(j)              No broker, finder, or other Person is entitled to any brokerage fees, commissions, or finder’s fees for which Idaho Power could become liable or obligated in connection with the Contemplated Transactions by reason of any action taken by PacifiCorp or its Affiliates.

(k)            Except as set forth in Schedule 3.2(k) , PacifiCorp does not own, or directly license from a third party, any Intellectual Property used in or necessary for the ownership, use and operation of the Idaho Power Acquired Assets (as these facilities are reasonably expected to be operated in accordance with the provisions of the Populus Joint Ownership and Operating Agreement on the date the facilities enter commercial operation) in accordance with Good Utility Practice and Governmental Requirements that is not part of the Idaho Power Acquired Assets.

(l)              Material Contracts Schedule 3.2(l) sets forth a true, accurate and complete list of each of the material contracts and other agreements to which PacifiCorp or any of its Affiliates is a party and which provides for the design, engineering, procurement, construction, installation and/or commissioning of the Populus Substation Facilities (the “ Populus Substation Facilities Contracts ”).  Except as set forth on Schedule 3.1(l), to PacifiCorp’s Knowledge, each of the Populus Substation Facilities Contracts is in full force and effect, and is valid, binding and enforceable in accordance with its terms.

Article IV
COVENANTS

 

4.1              Conditions and Commercially Reasonable Efforts . Subject to the terms and conditions of this Agreement, each Party, at its own cost, will use Commercially Reasonable Efforts to effectuate the transactions contemplated by this Agreement and to fulfill all of the conditions to its obligations under this Agreement and will do all such acts and things as reasonably may be required to carry out its obligations hereunder and to consummate the transactions contemplated by this Agreement on or before May 5, 2010, including making or cooperating with the other Party in the making of applications for Required Regulatory Approvals.  Notwithstanding the foregoing, neither Party will be required in connection with any Required Regulatory Approvals to agree to any payment or any condition of approval imposed by a Governmental Entity that is not reasonably acceptable to it.

4.2              Filings with Governmental Entities .  Except for (a) the Idaho Power Required Regulatory Approvals initiated by Idaho Power prior to the Effective Date and listed in Schedule 4.2(a) and the (b) the PacifiCorp Required Regulatory Approvals initiated by PacifiCorp prior to the Effective Date and listed in Schedule 4.2(b) , prior to Closing, each Party will provide prior written notice to the other Party before making any filing with, or initiating any discussion or

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proceeding with, any Governmental Entity in the course of obtaining any Required Regulatory Approvals from such Governmental Entities.  Prior to filing applications, pre-filed testimony or responses to data requests to any Governmental Entity in the course of obtaining any Required Regulatory Approvals from such Governmental Entities after the Effective Date, each Party will provide such materials to the other Party for its information.

4.3              Compliance .  Each Party shall comply with all Governmental Requirements and Governmental Authorizations applicable to it in connection with the Contemplated Transaction, except where non-compliance will not have a Material Adverse Effect on the other Party or any of its Affiliates.

4.4              Risk of Loss .

(a)             Hemingway Substation Facilities .  Idaho Power will bear the risk of loss or damage to the Hemingway Substation Facilities prior to the Effective Time of Closing.  From and after the Effective Time of Closing, the Parties will share in all Losses relating to the Hemingway Substation Facilities in accordance with the Hemingway Joint Ownership and Operating Agreement.

(b)            Populus Substation Facilities .  PacifiCorp will bear the risk of loss or damage to the Populus Substation Facilities prior to the Effective Time of Closing.  From and after the Effective Time of Closing, the Parties will share in all Losses relating to the Populus Substation Facilities in accordance with the Populus Joint Ownership and Operating Agreement.

4.5              Maintenance of Substation Facilities .

(a)             Hemingway Substation Facilities .  Prior to the Effective Time of Closing, Idaho Power, at its own cost and expense, will operate and maintain the Hemingway Substation Facilities, consistent with past practices and in accordance with Good Utility Practice, Governmental Requirements and Governmental Authorizations.  From and after the Effective Date of Closing, the Hemingway Substation Facilities shall be operated and maintained in accordance with the Hemingway Joint Ownership and Operating Agreement.

(b)            Populus Substation Facilities .  Prior to the Effective Time of Closing, PacifiCorp, at its own cost and expense, will operate and maintain the Populus Substation Facilities, consistent with past practices and in accordance with Good Utility Practice, Governmental Requirements and Governmental Authorizations.  From and after the Effective Time of Closing, the Populus Substation Facilities shall be operated and maintained in accordance with the Populus Joint Ownership and Operating Agreement.

4.6              Notice .  Each Party may notify the other Party in writing of any fact, circumstance or development known to it prior to Closing which at the time of notification causes any of its representations or warranties in this Agreement to be materially inaccurate.  Unless the other Party terminates this Agreement pursuant to Section 5.1 , the written notice pursuant to this Section 4.6 will be deemed to have qualified the representations or warranties, to have amended any Schedule referenced in such Section, and to have caused any breach of representation or

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warranty that otherwise might have existed hereunder by reason of the fact, circumstance or development to be cured.  Upon request of the other Party, the Party providing notice of a material inaccuracy of any of its representations and warranties shall, if possible, provide reasonable assurances to the other Party, in writing, that it will be able to perform its obligations under this Agreement.

4.7              Disclosure .  Disclosure by a Party of any fact or item in any Schedule or Exhibit hereto shall be deemed to have been so disclosed in any other Schedule, Exhibit or representation or warranty made by such Party herein, provided disclosure of such fact or item on such Schedule or Exhibit contains disclosure of facts that would otherwise be required to be disclosed in such other Schedule, Exhibit or representation or warranty.

 

Article V
TERMINATION

 

5.1              Termination .  Except as to those provisions that are expressly intended to survive termination, this Agreement may be terminated at any time prior to the Closing:

(a)             by the Parties, if the Parties mutually agree in writing to terminate this Agreement;

(b)            by Idaho Power, if Idaho Power delivers a written notice to PacifiCorp that it is terminating this Agreement (including the date of termination of this Agreement, which shall not be earlier than any applicable cure period provided for below) because:

(i)                 one or more of the conditions set forth in Section 2.11(a) (to be specified in detail in such notice) cannot be met on or before the Outside Closing Date, and such condition or conditions have not been satisfied (or waived by Idaho Power) within thirty (30) days after the date such notice is delivered by Idaho Power to PacifiCorp, provided that such condition or conditions have not been satisfied as a result of Idaho Power’s default hereunder; or

(ii)               PacifiCorp has breached in a material respect one or more of its covenants or agreements contained in Article IV or one or more of its representations and warranties contained in Article III (to be specified in detail in such notice), and such breach has not been remedied (or waived by Idaho Power) within thirty (30) days after the date such notice is delivered by Idaho Power to PacifiCorp, provided that such breach has not occurred as a result of Idaho Power’s default hereunder; or

(iii)             PacifiCorp notifies Idaho Power pursuant to Section 4.6 of a material inaccuracy, and Idaho Power delivers its termination notice within ten (10) days of receipt of PacifiCorp’s notice;

(c)             by PacifiCorp, if PacifiCorp delivers a written notice to Idaho Power that it is terminating this Agreement (including the date of termination of this Agreement, which shall not be earlier than any applicable cure period provided for below) because:

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(i)                 one or more of the conditions set forth in Section 2.11(b) (to be specified in detail in such notice) cannot be met on or before the Outside Closing Date, and such condition or conditions have not been satisfied (or waived by PacifiCorp) within thirty (30) days after the date such notice is delivered by PacifiCorp to Idaho Power, provided that such condition or conditions have not been satisfied as a result of PacifiCorp’s default hereunder; or

(ii)               Idaho Power has beached in a material respect one or more of its covenants or agreements contained in Article IV or one or more of its representations and warranties contained in Article III (to be specified in detail in such notice), and such breach has not been remedied (or waived by PacifiCorp) within thirty (30) days after the date such notice is delivered by PacifiCorp to Idaho Power, provided that such breach has not occurred as a result of PacifiCorp’s default hereunder; or

(iii)             Idaho Power notifies PacifiCorp pursuant to Section 4.6 of a material inaccuracy, and PacifiCorp delivers its termination notice within ten (10) days of receipt of Idaho Power’s notice;

(d)            by either Party, if such Party delivers a written notice to the other Party that it is terminating this Agreement (including the date of termination of this Agreement, which shall not be earlier than the date the condition below has been satisfied) because a court of competent jurisdiction in the United States or any state has issued an order, judgment or decree (other than a temporary restraining order) restraining, enjoining or otherwise prohibiting the Contemplated Transaction and such order, judgment or decree has become final and nonappealable; or

(e)             by either Party, if such Party delivers a written notice to the other Party that it is terminating this Agreement (including the date of termination of this Agreement, which shall not be earlier than the Outside Closing Date) because the Closing has not occurred on or before the Outside Closing Date, provided that the Closing has not occurred as a result of a default by the Party terminating this Agreement.

5.2              Effect of Early Termination .  In the event this Agreement is terminated by either or both of the Parties prior to Closing pursuant to Section 5.1, this Agreement will terminate and become wholly void and of no further force and effect, without further action by either Party, whereupon the liabilities of the Parties hereunder will terminate, and each Party and its Affiliates and Representative shall be fully released and discharged from any liability or obligation under or resulting from this Agreement, except as otherwise expressly provided in this Agreement.  If a Party terminates this Agreement prior to Closing pursuant to Section 5.1 , such termination will be the sole remedy of such Party with respect to breaches of any representation, warranty, covenant or agreement contained in this Agreement prior to Closing, and neither Party shall have any other remedy or cause of action under or relating to this Agreement.

Article VI
INDEMNIFICATION

6.1              Survival of Representations and Warranties:  Notices of Claims.   The representations and warranties of the Parties contained in this Agreement will survive the

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Closing and will expire on the first anniversary of the Closing Date, except that (i) the representations and warranties in Sections 3.1(g) , 3.1(h) , 3.1(j) , 3.2(g) , 3.2(h) and 3.2(j) will survive the Closing and will expire upon the second anniversary of the Closing Date; provided that, any representation or warranty (and the indemnification obligations of the Parties with respect thereto) that would otherwise terminate in accordance with this Section 6.1 will continue to survive if notice for indemnification shall have been timely given under this Article VI on or prior to such termination date, until the related claim for indemnification has been satisfied or otherwise resolved as provided in this Article VI .

6.2              Indemnification .

(a)             Idaho Power .  On the terms and subject to the conditions set forth in this Agreement, from and after the Closing, Idaho Power hereby agrees to indemnify, defend and hold harmless PacifiCorp and its Affiliates and Representatives from and against, and shall reimburse PacifiCorp with respect to, all Losses, whether or not involving a third-party Claim, resulting from or arising out of or in connection with:

(i)                 the breach in any material respect of any representation or warranty made by Idaho Power in this Agreement;

(ii)               the breach in any material respect by Idaho Power of any covenant or agreement contained in this Agreement to be performed by Idaho Power;

(iii)             the Idaho Power Excluded Liabilities; or

(iv)             all Environmental Claims and requirements of Environmental Law  with regard to Environmental Matters existing at the Hemingway Substation as of the Effective Time.

(b)            PacifiCorp .  On the terms and subject to the conditions set forth in this Agreement, from and after the Closing, PacifiCorp hereby agrees to indemnify, defend and hold harmless Idaho Power and its Affiliates and Representatives from and against, and shall reimburse Idaho Power with respect to, all Losses, whether or not involving a third-party Claim, resulting from or arising out of or in connection with:

(i)                 the breach in any material respect of any representation or warranty made by PacifiCorp in this Agreement;

(ii)               the breach in any material respect by PacifiCorp of any covenant or agreement contained in this Agreement to be performed by PacifiCorp;

(iii)             the PacifiCorp Excluded Liabilities; or

(iv)             all Environmental Claims and requirements of Environmental Law  with regard to Environmental Matters existing at the Populus Substation as of the Effective Time.

 

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6.3              Limitations on Indemnification .

(a)             A Party may assert a claim for indemnification pursuant to this Article VI only to the extent the Indemnified Party gives a notice to the Indemnifying Party specifying the factual basis of such claim in reasonable detail to the extent known to the notifying Party (i) for claims pursuant to Section 6.2(a)(i) or Section 6.2(b)(i) , prior to the expiration of the applicable time period set forth in Section 6.1 ; (ii) for claims pursuant to Section 6.2(a)(ii) , Section 6.2(a)(iii) , Section 6.2(b)(ii) or Section 6.2(b)(iii) , by the first anniversary of the Closing Date; and (iii) for claims pursuant to Section 6.2(a)(iv) or Section 6.2(b)(iv) by the expiration of the second anniversary of the Closing.  If any claim for indemnification is not made in accordance with Section 6.5 and the foregoing sentence by a Party on or prior to the applicable date set forth in Section 6.1 or this Section 6.3(a) , the other Party’s indemnification obligations with respect thereto will be irrevocably and unconditionally released and waived.

(b)            Notwithstanding any provision to the contrary contained in this Agreement, neither Party shall have liability to the other Party pursuant to Section 6.2 unless and until the amount of such Losses, individually or in the aggregate, exceed two hundred fifty thousand dollars ($250,000) and then, only for the Losses above that amount.

(c)             Notwithstanding anything to the contrary contained in this Agreement, the maximum amount of the indemnification obligation of Idaho Power under Section 6.2(a) to PacifiCorp and its Affiliates and Representatives shall not exceed an amount equal to the PacifiCorp Purchase Price.  Notwithstanding anything to the contrary contained in this Agreement, the maximum amount of the indemnification obligation of PacifiCorp under Section 6.2(b) to Idaho Power and its Affiliates and Representatives shall not exceed an amount equal to the Idaho Power Purchase Price.

(d)            The Parties acknowledge and agree that if any Party has knowledge of a material failure of any condition set forth in Section 2.11 or of a material breach by the other Party of any representation or warranty or covenant or agreement contained in this Agreement, through disclosure by the other Party pursuant to Section 4.6 or because any Party is otherwise aware, to Idaho Power’s Knowledge or to PacifiCorp’s Knowledge, respectively, of any such material failure or material breach by the other Party, and such Party proceeds with the Closing, such Party shall be deemed to have waived such condition or breach (but then only to the extent of such Party’s knowledge at Closing) and such Party and its successors, assigns and Affiliates and Representatives shall not be entitled to be indemnified pursuant to this Article VI , to sue for damages or to assert any other right or remedy for any Losses reasonably relating to such condition or breach and such Party’s knowledge thereof at Closing, notwithstanding anything to the contrary contained herein or in any Related Document.

(e)             Notwithstanding anything contained in this Agreement to the contrary, except for the representations and warranties contained in this Agreement, neither Party nor its Affiliates, Representatives or any other Person is making any other express or implied representation or warranty with respect to the PacifiCorp Acquired Assets, the Idaho Power Acquired Assets, the PacifiCorp Assumed Obligations, the Idaho Power Assumed Obligations or the Contemplated Transactions and each Party disclaims and negates, and expressly waives,

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any other representations or warranties, express (whether made by the other Party or its Affiliates or Representatives) or implied, at common law, by statute or otherwise relating to the PacifiCorp Acquired Assets, the Idaho Power Acquired Assets, the PacifiCorp Assumed Obligations, the Idaho Power Assumed Obligations or the Contemplated Transactions, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS.  Any claims a Party may have pursuant to Sections 6.2(a)(i) and 6.2(b)(i) for breach of representation or warranty must be based solely on the representations and warranties of the other Party set forth in this Agreement.  In furtherance of the foregoing, except for the representations and warranties contained in this Agreement, each Party acknowledges and agrees that neither the other Party nor any of its Affiliates or Representatives will have or be subject to any liability to it or any of its Affiliates or Representatives for, and each Party hereby disclaims all liability and responsibility for, any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to the other Party or any of the other Party’s Affiliates or Representatives.  EACH PARTY HEREBY ACKNOWLEDGES THAT, EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN ARTICLE III , THE PACIFICORP ACQUIRED ASSETS AND IDAHO POWER ACQUIRED ASSETS ARE BEING PURCHASED ON AN “AS IS, WHERE IS” BASIS.

(f)        Notwithstanding anything in this Section 6.3 to the contrary, except as otherwise may be ordered by a court of competent jurisdiction, the Indemnified Party shall bear its own costs, including counsel fees and expenses, incurred in connection with Claims against the Indemnifying Party hereunder that are not based upon Claims asserted by third parties.

6.4              Exclusive Remedies .   Idaho Power and PacifiCorp acknowledge and agree that, from and after the Closing, the sole and exclusive remedy for any breach or inaccuracy, or alleged breach or inaccuracy, of any representation or warranty in this Agreement or any covenant or agreement to be performed hereunder on or prior to the Closing Date or in respect of the other circumstances identified in Section 6.2(a)(iii) , 6.2(a)(iv) , 6.2(b)(iii) and 6.2(b)(iv) , will be indemnification in accordance with this Article VI .  In furtherance of the foregoing, except to the extent provided under this Article VI , Idaho Power and PacifiCorp hereby waive, to the fullest extent permitted by applicable Governmental Requirements, any and all other rights, claims, and causes of action (including rights of contributions, if any) against the other Party that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution, or performance of this Agreement (including any tort or breach of contract claim or cause of action based upon, arising out of, or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), known or unknown, foreseen or unforeseen, which exist or may arise in the future, that it may have against the other arising under or based upon any Governmental Requirement (including any such Governmental Requirement under or relating to environmental matters), common law, or otherwise.

6.5              Notice and Participation .

(a)             If a Party (an “ Indemnified Party ”) intends to seek indemnification under this Article VI with respect to any Claims for Losses, it shall give the other Party (the “ Indemnifying Party ”) prompt written notice of such Claims upon the receipt of actual knowledge or information by the Indemnified Party of any possible Claims or of the

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commencement of such Claims.  The Indemnifying Party shall have no liability under this Article VI for any Claim for which such notice is not provided, but only to the extent that the failure to give such notice materially impairs the ability of the Indemnifying Party to respond to or to defend the Claim.

(b)            The Indemnifying Party shall have the right to assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided , however , that if the defendants in any such proceeding include both the Indemnifying Party and the Indemnified Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are in conflict with those available to the Indemnifying Party and that such conflict materially prejudices the ability of the counsel selected by the Indemnifying Party to represent both Parties, the Indemnified Party shall have the right to select separate counsel reasonably satisfactory to the Indemnifying Party, at the Indemnifying Party’s expense, to assert such legal defenses and to otherwise participate in the defense of such Claim on behalf of the Indemnified Party, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such separate counsel.

(c)             Should the Indemnified Party be entitled to indemnification under this Article VI as a result of a Claim by a third party, and should the Indemnifying Party fail to assume the defense of such Claim within a reasonable period of time after the Indemnifying Party has provided the Indemnifying Party written notice of such Claim, the Indemnified Party may, at the expense of the Indemnifying Party, contest or (with or without the prior consent of the Indemnifying Party) settle such Claim.

(d)            Except to the extent expressly provided herein, the Indemnified Party shall not settle any Claim with respect to which it has sought or is entitled to seek indemnification pursuant to this Article VI unless (i) it has obtained the prior written consent of the Indemnifying Party, or (ii) the Indemnifying Party has failed to assume the defense of such Claim within a reasonable period of time after the Indemnified Party has provided the Indemnifying Party written notice of such Claim.

(e)             Except to the extent expressly provided otherwise herein, the Indemnifying Party shall not settle any Claim with respect to which it may be liable to provide indemnification pursuant to this Section 6.5 without the prior written consent of the Indemnified Party; provided , however , that if the Indemnifying Party has reached a bona fide settlement agreement with the plaintiff(s) in any such proceeding, which settlement includes a full release of the Indemnified Party for any and all liability with respect to such Claim, and the Indemnified Party does not consent to such settlement agreement, then the dollar amount specified in the settlement agreement, plus the Indemnified Party’s reasonable legal fees and other costs related to the defense of the Claim paid or incurred prior to the date of such settlement agreement, shall act as an absolute maximum limit on the indemnification obligation of the Indemnifying Party with respect to the Claim, or portion thereof, that is the subject of such settlement agreement.

6.6              Net Amount .  Subject to the limitations imposed by Section 6.5(e) , if applicable, in the event that one Party is obligated to indemnify and hold the other Party harmless under this

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A rticle VI , the amount owing to the other Party shall be the amount of the other Party’s actual Claims, net of any insurance or other recovery actually received by such Party.

6.7              No Set-Off .  Neither Party shall have any right to set-off any indemnification obligations that either may have under this Article VI against any other obligations or amounts due to the other Party, including under any other provisions of this Agreement or under any other Related Document.

6.8              No Release of Insurers .   The provisions of this Article VI shall not be deemed or construed to release any insurer from its obligation to pay any insurance proceeds in accordance with the terms and conditions of valid and collectible insurance policies.

6.9              Mitigation .   Each Party shall take Commercially Reasonable Efforts to mitigate all Claims after becoming aware of any event which could reasonably be expected to give rise to any Claims that are indemnifiable or recoverable hereunder or in connection herewith.

6.10          Survival of Obligation .   The duty to indemnify under this Article VI shall continue, subject to the terms and conditions provided in this Agreement, in full force and effect notwithstanding the expiration or termination of this Agreement, with respect to any Claim arising out of an event or condition which occurred or existed prior to such expiration or termination.

6.11          Limitation of Liability .  Neither Party shall be liable under this Agreement in any action at law or in equity, whether based on contract, tort, strict liability, indemnity or otherwise, for any special incidental, indirect, exemplary, punitive or consequential damages or losses, including any loss of revenue, income, claims of customers, profits or investment opportunities.

Article VII
MISCELLANEOUS PROVISIONS

7.1              Amendment and Modification .  This Agreement may be amended, modified, or supplemented only by written agreement executed by both Parties.

7.2              Waiver of Compliance; Consents .  Except as otherwise provided in this Agreement, any failure of either Party to comply with any obligation, covenant, agreement, or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.

7.3              Notices .  Any notice, demand, request or other communication required or permitted to be given pursuant to this Agreement shall be in writing and signed by the Party giving such notice, demand, request or other communication and shall be hand delivered or sent by certified mail, return receipt requested, nationally or internationally recognized overnight courier to the other Party at the address set forth below:

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EXECUTION COPY

 

 

If to Idaho Power:

Idaho Power Company

 

1221 West Idaho Street

 

Boise, ID 83702

 

Attn:  N. Vernon Porter,

 

 

Vice President, Engineering and Operations

 

Telephone:   208-388-2850

 

 

If to PacifiCorp:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:    Director, Transmission Service

 

Telephone:   503-813-6712

 

(b)            Each Party shall have the right to change the place to which any notice, demand, request or other communication shall be sent or delivered by similar notice sent in like manner to the other Party.  The effective date of any notice, demand, request or other communication issued pursuant to this Agreement shall be when:  (i) delivered to the address of the Party personally, by messenger, by a nationally or internationally recognized overnight delivery service or otherwise; or (ii) received or rejected by the Party, if sent by certified mail, return receipt requested, in each case, addressed to the Party at its address and marked to the attention of the person designated above (or to such other address or person as a Party may designate by notice to the other Party effective as of the date of receipt by such Party).

7.4              Assignment .  This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests, or obligations hereunder may be assigned by either Party, without the prior written consent of the other Party.  No provision of this Agreement, other than Section 6.2 , creates any rights, claims or benefits inuring to any Person that is not a Party hereto.

7.5              Governing Law; Exclusive Choice of Forum; Remedies .

(a)             This Agreement, the rights and obligations of the Parties under this Agreement, and any claim or controversy arising out of this Agreement (whether based on contract, tort, or any other theory), including all matters of construction, validity, effect, performance and remedies with respect to this Agreement, shall be governed by and interpreted, construed, and determined in accordance with, the laws of the State of Idaho (regardless of the laws that might otherwise govern under applicable principles of conflicts of law).  Each Party irrevocably consents to the exclusive jurisdiction and venue of any court within the State of Idaho, in connection with any matter based upon or arising out of this Agreement or the matters contemplated herein, agrees that process may be served upon them in any manner authorized by the laws of the State of Idaho for such persons and waives and covenants not to assert or plead any objection which they might otherwise have to such jurisdiction, venue or process.

(b)            EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,

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ANY AND ALL RIGHTS TO A TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING UNDER THIS AGREEMENT.

7.6              Severability .  Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

7.7              Entire Agreement .  This Agreement will be a valid and binding agreement of the Parties only if and when it is fully executed and delivered by the Parties, and until such execution and delivery no legal obligation will be created by virtue hereof.  This Agreement, together with the Schedules and Exhibits hereto and the Related Documents delivered under or in accordance herewith, embodies the entire agreement and understanding of the Parties hereto in respect of the Contemplated Transactions.  This Agreement and the Related Documents  supersede all prior agreements and understandings between the Parties with respect to such subject matter hereof.

7.8              Expenses .  Except as otherwise set forth in this Agreement, each Party shall bear its own expenses (including attorneys’ fees) incurred in connection with the preparation, negotiation, execution and performance of this Agreement and each other Related Document and the consummation of the Contemplated Transactions hereby and thereby.

7.9              Delivery .  This Agreement, and any Related Documents delivered under or in accordance herewith, may be executed in multiple counterparts (each of which will be deemed an original, but all of which together will constitute one and the same instrument), and may be delivered by electronic transmission, with originals to follow by overnight courier or certified mail (return receipt requested).

[Signature Page Follows]

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IN WITNESS WHEREOF, each of the Parties has caused this Joint Purchase and Sale Agreement to be executed by its duly authorized officer as of the date first above written.

 

IDAHO POWER COMPANY

 

 

By: /s/ Dan B. Minor
Name:   Dan B. Minor
Title:  EVP, Operations

 

 

PACIFICORP

 

 

By:  /s/ Patrick Reiten
Name:  Patrick Reiten
Title:  President
                                                                             


 


 

 

EXECUTION COPY

 

Exhibit A

Description of Hemingway Substation Facilities

Section I.  Description of Hemingway Substation Facilities.

The Hemingway Substation Facilities include all above ground 500kV structures, bus, and equipment and associated foundations starting at the 230kV side of the transformer high-side air break, 501H, to the extents of the station yard where the MPSN (Midpoint Substation) 1 and SMLK (Summer Lake) line terminals depart to the tap line segments.  The major equipment included in the Hemingway Substation Facilities consist of six 500kV breakers and one spare 500kV breaker (stored on location), seventeen 500kV airbreaks, one SMLK line reactor bank (three 1-phase units), and one shunt capacitor bank and associated barrier fence attached to bus #2.  Also included in the Hemingway Substation Facilities are 13 control, protection and line carrier panels, 3 intertie cabinets and their associated control cables from the panels to the yard equipment.  The Hemingway Substation Facilities also include all components associated with both tap segments for the MPSN 1 and SMLK line terminals extending and connecting to the existing Midpoint–Summer Lake Line.

STATION

 

 

 

 

QTY

Equipment Description

Item

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 2000Amp

206

1

Power Circuit Breaker, 550kV 2000Amp

204

1

Power Circuit Breaker, 550kV 2000Amp

204

10

Local Equipment Annunciator Units for Reactors and Breakers

 

1

Shunt Reactor, 317.5/550kV, 44.33

201-1

 

                                                                             


 


 

 

EXECUTION COPY

 

 

 

MVA

 

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Capacitor, 550kV 220MVAR Expandable to 330MVAR

203

13

Switch, Motor Operated Airbreak, 500kV 4000A

208

3

Switch, Motor Operated Airbreak, 500kV 2000A

209-1

1

Switch, Motor Operated Airbreak w/ GND Switch, 500kV 2000A

209-2

12

Capacitor Voltage Transformer, 500kV

211

6

Capacitor Voltage Transformer, 500kV w/ Carrier Accessories

212

6

Line Trap, 500kV 3000A

214-1

6

Line Tuner, Single Phase Units

214-2

12

Surge Arrestor, 318kV MCOV

215

6

Surge Arrestor, 144kV MCOV

238

138

Insulator, Station Post, 500kV 1800BIL

217

48

Insulator, Station Post, 500kV 1800BIL

218

153

Insulator, Suspension, Polymer 500kV Class

220

 

 

 

QTY

Structure Description

Item

 

 


 


 

 

EXECUTION COPY

 

 

2

Steel Structure, 500kV Line-Deadend A-Frame Structure

100-1

4

Steel Structure, 500kV Line-Deadend A-Frame Structure

100-2

51

Steel Structure, 500kV 3-ph Airbreak Support

106-1

12

Steel Structure, 500kV CCVT Structure

107-1

6

Steel Structure, 500kV Line Trap Structure

107-2

9

Steel Structure, 500kV Surge Arrestor Structure

108

10

Steel Structure, 500kV Strain Bus A-Frame Structure

101

2

Steel Structure, 500kV Transfer Bus Structure, Reactor

103

2

Steel Structure, 500kV Transfer Bus Structure, Spare for Reactor

103

6

Steel Structure, 500kV 3-ph Bus Support, Future Airbreak Support

106-2

117

Steel Structure, Lally, 500kV 1-ph Low Bus Support

110

3

Steel Structure, Lally, 500kV 1-ph Low Bus Support

110

16

Steel Structure, Lally, 500kV 1-ph Low Bus Support

111

 

 

 

QTY

Conductor Description

Item

3,500 ft

Conductor, 6” Aluminum Pipe, Schedule 80, 6063-T6

300

3,500 ft

Conductor, 1590 ACSR (Dampening for 6” Bus)

303

 

 


 


 

 

EXECUTION COPY

 

 

20,000 ft

Conductor, Strain Bus, 1780 ACSS “CHUKAR” 1.601 Diameter

304

6,750 ft

Conductor, 3/8” EHS Shield Wire

306

75,615 ft

Control Cable

 

 

 

 

QTY

Panel Description

P Number

1

Panel E9: SMLK 11-1 (Pri. #1 Relay)

5933

1

Panel E10: SMLK 11-2 (Pri. #2 Relay & 535A/536A Control)

5934

1

Panel E11: SMLK 11-3 (Pri. #3 Relay)

5935

1

Panel E12: SMLK L511 Protection & 511Z Control

5936

1

Panel E13: SMLK 511Z BF & Lockout

5937

1

Panel F14: RAS A & B (MPSN-HMWY-SMLK Remedial Action)

5947

1

Panel G13: MPSN#1 Power Line Carriers (RFL-9780-1, RFL-9780-2)

5953

1

Panel G14: SMLK Power Line Carriers (RFL-9780-1, RFL-9780-2)

5954

1

Panel H9: MPSN#1 11-1 (Pri. #1 Relay)

5955

1

Panel H10: MPSN#1 11-2 (Pri. #2 Relay & 538A/539A Control)

5956

1

Panel H11: MPSN#1 11-3 (Pri. #3 Relay)

5957

1

Panel L13: C513 11-1 (Pri. #1 Relay & 513W Control)

5966

1

Panel L14: C513 11-2 (Pri. #2 Relay)

5967

13

Panel Rack and Frames

 

 

 


 


 

 

EXECUTION COPY

 

 

1

Intertie Cabinet EF2: SUMMER LAKE 500kV LINE (535A/536A/511Z/L511/CCVT’s)

5985

1

Intertie Cabinet GH@: MPSN #1 500kV LINE (538A/539A/CCVT’s)

5987

1

Intertie Cabinet KL2: MPSN #2 500kV LINE(FUTURE) / C513

5991

 

 

 

QTY

Foundation Description

 

156

Other structures (for Items 101, 103, 106-2, 100, 111)

 

6

Deadend Structures (for Items 100-1 and 100-2)

 

78

Equipment Structures

 

3

Reactor oil containment

 

370 ft

Fence, Capacitor Bank Barrier

 

6

Key Interlock for Capacitor Bank Barrier Fence

 

 

 

 

TAP

 

 

 

 

 

QTY

Line Material Description

 

8

Dead-end, Single Pole Tubular Steel w/ Foundation

 

2

Tangent, Single Pole Tubular Steel w/ Foundation

 

2406

Insulator, 10” 52-5 b&s 30k

 

6

Insulator, Horizontal Post 500kV

 

 

 

 


 


 

 

EXECUTION COPY

 

 

40,500 ft

Conductor,  1272 ACSR 45/7 Bitten

 

8,500 ft

Overhead Ground Wire, 3/8 EHS Steel

 

 

 

 

Section II.  [Intentionally omitted.]

 

 

 



 

 

EXECUTION COPY

 

Exhibit B

Description of Populus Substation Facilities

 

 

Section I.  Description of Populus Substation Facilities.

 

The Populus Substation Facilities include all above ground 345kV structures, bus, breakers, capacitors, associated equipment and foundations as listed below.  The major equipment included in the Populus Substation Facilities consist of sixteen 345 kV breakers, thirty-five air breaks, two line reactors, two series capacitor banks, one shunt capacitor bank and eleven coupling capacitor voltage transformers (CCVT), including all components associated with connection of the Bridger-Populus Transmission Lines (#s 1 and 2), the Populus–Borah Transmission Lines (#s 1 and 2), the Populus–Ben Lomond Transmission Lines (#s 1, 2 and 3) and the Populus–Kinport Transmission Line.

 

Transmission Line

 

   

 

Item

 

Description

Qnty

 

 

 

Dead End

Mono pole steel

10

Tangent

Mono pole steel

35

Dead End

Three pole steel

10

 

 

 

Substation

 

 

 

Item

Description 

Qnty

 

 

 

345 kV breaker

362kV, 3000A, 50kA, Gas Filled, w/Pre-insertion Resistors 13

 

 

322, 327, 328, 342, 343, 346, 347, 348, 362, 363, 366, 367, 368

 

 

 

 

345 kV breaker

362kV, 2000A, 50kA, Gas Filled, for shunt reactor

2

 

R393, R392

 

 

 

 

345 kV breaker

362kV, 3000A, 50kA, Gas Filled, for Capacitor Bank

1

 

C329

 

 

 

 

345 kV switch

362kV, 3000A, Vertical Break, W/Ground Switch (Line)

8

 

 

 

345 kV Switch

362kV, 3000A, Vertical Break (Breaker Isolation)

20

 

 

 

345 kV Switch

362kV, 2000A, Vertical Break (Capacitor & Reactor)

3

 

 

                                                                             


 


 

 

EXECUTION COPY

 

 

345 kV Switch

362kV, 3000A, Vertical Break, W/Ground Switch

4

 

382G, 352G, 383G, 353G

 

 

 

 

345 kV CCVT

1550KV BIL, 1800/3000:1, No Carrier Accessories

6

 

 

 

345 kV CCVT

1550KV BIL, 1800/3000:1, With Carrier Accessories

5

 

 

 

345 kV CT/VT

CT/VT Metering Units, 345kV

15

 

 

 

345 kV Capacitor

 

 

 

Bank

362kV, 220/F275 MVar

1

 

 

 

345 kV Series

 

 

 

Capacitor

347-262 kV, 1550 kV BIL

2

 

 

 

345 kV Reactors

362kV, 100MVA

2

 

 

 

Insulator

Station Post, 345kV

738

 

 

 

Insulator

Suspension, 345kV

48

 

 

 

Bus

Rigid and Wire Bus, Assemblies, and Connectors

1

 

 

 

Bus

Rigid & Wire Bus, Ass. & Connectors – 345kV Series Capacitor

2

 

 

 

Security

Security System, Conduit Installation

1

 

 

 

Communications

Power Line Carrier, With All Additional Equipment

5

 

 

 

Line Traps

345kV, 3000A

5

 

 

 

Lightning Arresters

345 kV, 212kV MCOV

24

 

 

 

Oil Containment

System and Foundation

1

 

 

 

Foundations

Concrete - Drilled Piers

5685 Yds

 

 

 

Steel

Structural Steel Supports

2374881 lbs.

 

 

 

 

 

Section II. [Intentionally omitted.]

 

 

 


 


 

 

EXECUTION COPY

 

Exhibit C

Hemingway Bill of Sale

THIS HEMINGWAY BILL OF SALE is made and entered into as of [__________], 2010 (this “ Bill of Sale ”) by Idaho Power Company, an Idaho corporation (“ Idaho Power ”), for the benefit of PacifiCorp, an Oregon corporation (“ PacifiCorp ”).  Capitalized terms used but not defined in this Bill of Sale shall have the meanings assigned to such terms in the Agreement (as defined below).

RECITALS

WHEREAS, pursuant to that certain Joint Purchase and Sale Agreement, dated as of [__________], 2010 (the “ Agreement ”), between Idaho Power and PacifiCorp, Idaho Power has agreed, subject to the terms and conditions of the Agreement, to sell, assign, convey, transfer and deliver to PacifiCorp, free and clear of all Encumbrances (except for Idaho Power Permitted Encumbrances), an undivided ownership interest, as tenant in common, equal to PacifiCorp’s Hemingway Ownership Interest in all of Idaho Power’s right, title and interest in, to, and under the Purchased Assets (as more fully described below); and

WHEREAS, pursuant to the Agreement, Idaho Power has agreed to enter into this Bill of Sale pursuant to which PacifiCorp’s Hemingway Ownership Interest in the Purchased Assets will be sold, transferred, assigned, conveyed, set over and delivered to PacifiCorp (as more fully described below).

NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Idaho Power hereby agrees as follows:

1.         Sale .  Subject to the terms and conditions of the Agreement, including delivery of the consideration specified therein, Idaho Power does hereby sell, assign, convey, transfer and deliver to PacifiCorp, free and clear of all Encumbrances (except for Idaho Power Permitted Encumbrances), an undivided ownership interest, as tenant in common, equal to PacifiCorp’s Hemingway Ownership Interest in all of Idaho Power’s right, title, and interest in and to the Hemingway Substation Facilities (the “ Purchased Assets ”).

2.         Excluded Assets Not Assigned .  Notwithstanding anything expressed herein to the contrary, the Excluded Assets are specifically excluded from the Purchased Assets as provided in the Agreement and shall be retained by Idaho Power at and following the Closing.

3.         Further Assurances .  Idaho Power shall, from time to time after the delivery of this Bill of Sale, at PacifiCorp’s request and expense, prepare, execute and deliver to PacifiCorp such other instruments of conveyance and transfer and take such other action as PacifiCorp may reasonably request in order to sell, transfer, convey, assign and deliver and vest in PacifiCorp, its successors and assigns, title to and possession of PacifiCorp’s Hemingway Ownership Interest in the Hemingway Substation Facilities free and clear of all Encumbrances (except for Idaho Power

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Permitted Encumbrances) as provided in the Agreement and to further effect the purposes of this Bill of Sale.

4.         Relationship to Agreement; Construction .  This Bill of Sale is delivered pursuant to the Agreement.  This Bill of Sale and the provisions hereof are subject, in all respects, to the terms and conditions of the Agreement, including all of the covenants, representations and warranties contained therein, all of which shall survive the execution and delivery of this Bill of Sale to the extent indicated in the Agreement.  To the extent that any of the Purchased Assets described herein are real property and not personal property, it is the intention of the Parties that such assets be transferred pursuant to the Hemingway Deed.  In the event of any conflict between the terms of the Agreement and the terms of this Bill of Sale, the terms of the Agreement shall prevail.

5.         No Waiver .  It is understood and agreed that nothing in this Bill of Sale shall constitute a waiver or release of any claims arising out of the contractual relationships between Idaho Power and PacifiCorp.

6.         No Third Party Beneficiary .  Nothing in this Bill of Sale, express or implied, is intended or shall be construed to confer upon, or give to, any person other than PacifiCorp, Idaho Power and their successors and permitted assigns any remedy or claim under or by reason of this Bill of Sale or any agreements, terms, covenants or conditions hereof and all the agreements, terms, covenants and conditions contained in this Bill of Sale shall be for the sole and exclusive benefit of PacifiCorp, Idaho Power and their successors and permitted assigns.

7.         Binding Effect .  This Bill of Sale and all of the provisions hereof shall be binding upon and shall inure to the benefit of Idaho Power, PacifiCorp and their respective successors and permitted assigns.

8.         Governing Law .  This Bill of Sale shall be governed by and construed in accordance with the laws of the State of Idaho (regardless of the laws that might otherwise govern under applicable principles of conflicts of law) as to all matters, including matters of validity, construction, effect, performance and remedies.

9.         Severability .  Any term or provision of this Bill of Sale that is invalid or unenforceable in any situation will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

10.       Counterparts .  This Bill of Sale may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Bill of Sale and all of which, when taken together, will be deemed to constitute one and the same agreement.

11.       Notices .  All notice, requests, demands and other communications under this Bill of Sale shall be given in accordance with Section 7.3 of the Agreement and at the addresses set forth therein.

[Signature page follows]

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EXECUTION COPY

 

IN WITNESS WHEREOF, Idaho Power has caused its duly authorized representative to execute this Hemingway Bill of Sale as of the date first above written.

 

IDAHO POWER COMPANY

 

By: ________________________
Name:
Title:

 


 


 

 

EXECUTION COPY

 

 

Exhibit D

 

Populus Bill of Sale

THIS POPULUS BILL OF SALE is made and entered into as of [__________], 2010 (this “ Bill of Sale ”) by PacifiCorp, an Oregon corporation (“ PacifiCorp ”), for the benefit of Idaho Power Company, an Idaho corporation (“ Idaho Power ”).  Capitalized terms used but not defined in this Bill of Sale shall have the meanings assigned to such terms in the Agreement (as defined below).

RECITALS

WHEREAS, pursuant to that certain Joint Purchase and Sale Agreement, dated as of [__________], 2010 (the “ Agreement ”), between PacifiCorp and Idaho Power, PacifiCorp has agreed, subject to the terms and conditions of the Agreement, to sell, assign, convey, transfer and deliver to Idaho Power, free and clear of all Encumbrances (except for PacifiCorp Permitted Encumbrances), an undivided ownership interest, as tenant in common, equal to Idaho Power’s Populus Ownership Interest in all of PacifiCorp’s right, title and interest in, to, and under the Purchased Assets (as more fully described below); and

WHEREAS, pursuant to the Agreement, PacifiCorp has agreed to enter into this Bill of Sale pursuant to which Idaho Power’s Populus Ownership Interest in the Purchased Assets will be sold, transferred, assigned, conveyed, set over and delivered to Idaho Power (as more fully described below).

NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, PacifiCorp hereby agrees as follows:

1.         Sale .  Subject to the terms and conditions of the Agreement, including delivery of the consideration specified therein, PacifiCorp does hereby sell, assign, convey, transfer and deliver to Idaho Power, free and clear of all Encumbrances (except for PacifiCorp Permitted Encumbrances), an undivided ownership interest, as tenant in common, equal to Idaho Power’s Populus Ownership Interest in all of PacifiCorp’s right, title, and interest in and to the Populus Substation Facilities (the “ Purchased Assets ”).

2.         Excluded Assets Not Assigned .  Notwithstanding anything expressed herein to the contrary, the Excluded Assets are specifically excluded from the Purchased Assets as provided in the Agreement and shall be retained by PacifiCorp at and following the Closing.

3.         Further Assurances .  PacifiCorp shall, from time to time after the date hereof, at Idaho Power’s request and expense, prepare, execute and deliver to Idaho Power such other instruments of conveyance and transfer and take such other action as Idaho Power may reasonably request in order to sell, transfer, convey, assign and deliver and vest in Idaho Power, its successors and assigns, title to and possession of Idaho Power’s Populus Ownership Interest in the Populus Substation Facilities free and clear of all Encumbrances (except for PacifiCorp

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EXECUTION COPY

Permitted Encumbrances) as provided in the Agreement and to further effect the purposes of this Bill of Sale.

4.         Relationship to Agreement; Construction .  This Bill of Sale is delivered pursuant to the Agreement.  This Bill of Sale and the provisions hereof are subject, in all respects, to the terms and conditions of the Agreement, including all of the covenants, representations and warranties contained therein, all of which shall survive the execution and delivery of this Bill of Sale to the extent indicated in the Agreement.  To the extent that any of the Purchased Assets described herein are real property and not personal property, it is the intention of the Parties that such assets be transferred pursuant to the Populus Deed.  In the event of any conflict between the terms of the Agreement and the terms of this Bill of Sale, the terms of the Agreement shall prevail.

5.         No Waiver .  It is understood and agreed that nothing in this Bill of Sale shall constitute a waiver or release of any claims arising out of the contractual relationships between PacifiCorp and Idaho Power.

6.         No Third Party Beneficiary .  Nothing in this Bill of Sale, express or implied, is intended or shall be construed to confer upon, or give to, any person other than Idaho Power, PacifiCorp and their successors and permitted assigns any remedy or claim under or by reason of this Bill of Sale or any agreements, terms, covenants or conditions hereof and all the agreements, terms, covenants and conditions contained in this Bill of Sale shall be for the sole and exclusive benefit of Idaho Power, PacifiCorp and their successors and permitted assigns.

7.         Binding Effect .  This Bill of Sale and all of the provisions hereof shall be binding upon and shall inure to the benefit of PacifiCorp, Idaho Power and their respective successors and permitted assigns.

8.         Governing Law .  This Bill of Sale shall be governed by and construed in accordance with the laws of the State of Idaho (regardless of the laws that might otherwise govern under applicable principles of conflicts of law) as to all matters, including matters of validity, construction, effect, performance and remedies.

9.         Severability .  Any term or provision of this Bill of Sale that is invalid or unenforceable in any situation will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

10.       Counterparts .  This Bill of Sale may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Bill of Sale and all of which, when taken together, will be deemed to constitute one and the same agreement.

11.       Notices .  All notice, requests, demands and other communications under this Bill of Sale shall be given in accordance with Section 7.3 of the Agreement and at the addresses set forth therein.

[Signature page follows]  

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EXECUTION COPY

 

IN WITNESS WHEREOF, PacifiCorp has caused its duly authorized representative to execute this Populus Bill of Sale as of the date first above written.

 

 

PACIFICORP

 

By: ________________________
Name:
Title:

 

                                                                               


 


 

 

EXECUTION COPY

 

Exhibit E

Hemingway Assignment and Assumption Agreement

This HEMINGWAY ASSIGNMENT AND ASSUMPTION AGREEMENT (this “ Assignment Agreement ”), dated as of this ___ day of ________, 2010, is entered into by and between Idaho Power Company, an Idaho corporation (“ Idaho Power ”), and PacifiCorp, an Oregon corporation (“ PacifiCorp ”).  Capitalized terms used but not defined in this Assignment Agreement shall have the meanings assigned to such terms in the Agreement (as defined below).

WHEREAS, pursuant to that certain Joint Purchase and Sale Agreement, dated as of [__________], 2010 (the “ Agreement ”), between Idaho Power and PacifiCorp, (a) Idaho Power has agreed, subject to the terms and conditions of the Agreement, to sell, assign, convey, transfer and deliver to PacifiCorp, free and clear of all Encumbrances (except for Idaho Power Permitted Encumbrances), an undivided ownership interest, as tenant in common, equal to PacifiCorp’s Hemingway Ownership Interest in all of Idaho Power’s right, title and interest in, to, and under the Hemingway Transferable Permits, but excluding the Idaho Power Excluded Assets and (b) PacifiCorp has agreed to purchase and accept the same from Idaho Power.

NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, PacifiCorp and Idaho Power hereby agrees as follows:

1.         Assignment of Hemingway Transferable Permits .  Subject to the terms and conditions of the Agreement, Idaho Power hereby assigns, transfers, sets over, delivers and otherwise conveys to PacifiCorp and its successors and assigns forever, free and clear of all Encumbrances (other than Idaho Power Permitted Encumbrances), an undivided ownership interest equal to PacifiCorp’s Hemingway Ownership Interest in all of Idaho Power’s right, title, and interest in, to, and under the Hemingway Transferable Permits, to have and to hold with each and every one of the rights, privileges and appurtenances thereto belonging or in any wise appertaining thereto.  For the avoidance of doubt, Idaho Power is not assigning to PacifiCorp any interest in assets other than the Hemingway Transferable Permits.  Without limiting the generality of the foregoing sentence, Idaho Power is not assigning or otherwise transferring to PacifiCorp any portion of the Idaho Power Excluded Assets.

2.         Acceptance and Assumption of Hemingway Transferable Permits .  Subject to the terms and conditions of the Agreement, PacifiCorp hereby accepts and assumes and agrees to perform and observe, to the extent of PacifiCorp’s Hemingway Ownership Interest, Idaho Power’s rights, obligations, duties and liabilities under the Hemingway Transferable Permits, to the extent allocable to any period on or after the Closing.  From and after the Closing Date, PacifiCorp is and shall be bound by, and shall enjoy, to the extent of PacifiCorp’s Hemingway Ownership Interest, the benefits of, the Hemingway Transferable Permits, pursuant to the terms and conditions of thereof.

3.         Reliance .  Any individual, partnership, corporation or other entity may rely, without further inquiry, upon the powers and rights herein granted to PacifiCorp and upon any notarization, certification, verification or affidavit by any notary public of any State relating to

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EXECUTION COPY

the authorization, execution and delivery of this Assignment Agreement or to the authenticity of any copy, conformed or otherwise, hereof.

4.         Relationship to Agreement .  This Assignment Agreement is delivered pursuant to the Agreement.  This Assignment Agreement and the provisions hereof are subject, in all respects, to the terms and conditions of the Agreement, including all of the covenants, representations and warranties contained therein, all of which shall survive the execution and delivery of this Assignment Agreement to the extent indicated in the Agreement.  In the event of any conflict between the terms of the Agreement and the terms of this Assignment Agreement, the terms of the Agreement shall prevail.

5.         No Waiver .  It is understood and agreed that nothing in this Assignment Agreement shall constitute a waiver or release of any claims arising out of the contractual relationships between Idaho Power and PacifiCorp.

6.         No Third Party Beneficiary .  Nothing in this Assignment Agreement, express or implied, is intended or shall be construed to confer upon, or give to, any person other than PacifiCorp, Idaho Power and their successors and permitted assigns any remedy or claim under or by reason of this Assignment Agreement or any agreements, terms, covenants or conditions hereof and all the agreements, terms, covenants and conditions contained in this Assignment Agreement shall be for the sole and exclusive benefit of PacifiCorp, Idaho Power and their successors and permitted assigns.

7.         Binding Effect .  This Assignment Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of Idaho Power, PacifiCorp and their respective successors and permitted assigns.

8.         Governing Law .  This Assignment Agreement shall be governed by and construed in accordance with the laws of the State of Idaho (regardless of the laws that might otherwise govern under applicable principles of conflicts of law) as to all matters, including matters of validity, construction, effect, performance and remedies.

9.         Severability .  Any term or provision of this Assignment Agreement that is invalid or unenforceable in any situation will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

10.       Counterparts .  This Assignment Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Assignment Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

11.       Notices .  All notice, requests, demands and other communications under this Assignment Agreement shall be given in accordance with Section 7.3 of the Agreement and at the addresses set forth therein.

 

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EXECUTION COPY

 

12.       No Amendment .  No amendment to the terms and conditions of this Assignment Agreement shall be valid and binding on PacifiCorp or Idaho Power unless made in writing and signed by an authorized representative of each of them.

[Signature page follows]  

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EXECUTION COPY

 

IN WITNESS WHEREOF, each of PacifiCorp and Idaho Power has caused its duly authorized representative to execute this Hemingway Assignment and Assumption Agreement as of the date first above written.

 

 

IDAHO POWER COMPANY

 

By: ________________________
Name:
Title:

PACIFICORP

 

By: ________________________
Name:
Title:

                                                                               


 


 

 

EXECUTION COPY

 

Exhibit F

Populus Assignment and Assumption Agreement

This POPULUS ASSIGNMENT AND ASSUMPTION AGREEMENT (this “ Assignment Agreement ”), dated as of this ___ day of ________, 2010, is entered into by and between Idaho Power Company, an Idaho corporation (“ Idaho Power ”), and PacifiCorp, an Oregon corporation (“ PacifiCorp ”).  Capitalized terms used but not defined in this Assignment Agreement shall have the meanings assigned to such terms in the Agreement (as defined below).

WHEREAS, pursuant to that certain Joint Purchase and Sale Agreement, dated as of [__________], 2010 (the “ Agreement ”), between PacifiCorp and Idaho Power, (a) PacifiCorp has agreed, subject to the terms and conditions of the Agreement, to sell, assign, convey, transfer and deliver to Idaho Power, free and clear of all Encumbrances (except for PacifiCorp Permitted Encumbrances), an undivided ownership interest equal to Idaho Power’s Populus Ownership Interest in all of PacifiCorp’s right, title and interest in, to, and under the Populus Transferable Permits, but excluding the PacifiCorp Excluded Assets and (b) Idaho Power has agreed to purchase and accept the same from PacifiCorp.

NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Idaho Power and PacifiCorp hereby agrees as follows:

1.         Assignment of Populus Transferable Permits .  Subject to the terms and conditions of the Agreement, PacifiCorp hereby assigns, transfers, sets over, delivers and otherwise conveys to Idaho Power and its successors and assigns forever, free and clear of all Encumbrances (other than PacifiCorp Permitted Encumbrances), an undivided ownership interest equal to Idaho Power’s Populus Ownership Interest in all of PacifiCorp’s right, title, and interest in, to, and under the Populus Transferable Permits  For the avoidance of doubt, PacifiCorp is not assigning to Idaho Power any interest in assets other than the Populus Transferable Permits.  Without limiting the generality of the foregoing sentence, PacifiCorp is not assigning or otherwise transferring to Idaho Power any portion of the PacifiCorp Excluded Assets.

2.         Acceptance and Assumption of Populus Transferable Permits .  Subject to the terms and conditions of the Agreement, Idaho Power hereby accepts and assumes and agrees to perform and observe, to the extent of Idaho Power’s Populus Ownership Interest, PacifiCorp’s rights, obligations, duties and liabilities under the Populus Transferable Permits, to the extent allocable to any period on or after the Closing.  From and after the Closing Date, Idaho Power is and shall be bound by, and shall enjoy, to the extent of Idaho Power’s Populus Ownership Interest, the benefits of, the Populus Transferable Permits, pursuant to the terms and conditions of thereof.

3.         Reliance .  Any individual, partnership, corporation or other entity may rely, without further inquiry, upon the powers and rights herein granted to Idaho Power and upon any notarization, certification, verification or affidavit by any notary public of any State relating to the authorization, execution and delivery of this Assignment Agreement or to the authenticity of any copy, conformed or otherwise, hereof.

                                                                             


 


 

 

EXECUTION COPY

 

4.         Relationship to Agreement .  This Assignment Agreement is delivered pursuant to the Agreement.  This Assignment Agreement and the provisions hereof are subject, in all respects, to the terms and conditions of the Agreement, including all of the covenants, representations and warranties contained therein, all of which shall survive the execution and delivery of this Assignment Agreement to the extent indicated in the Agreement.  In the event of any conflict between the terms of the Agreement and the terms of this Assignment Agreement, the terms of the Agreement shall prevail.

5.         No Waiver .  It is understood and agreed that nothing in this Assignment Agreement shall constitute a waiver or release of any claims arising out of the contractual relationships between PacifiCorp and Idaho Power.

6.         No Third Party Beneficiary .  Nothing in this Assignment Agreement, express or implied, is intended or shall be construed to confer upon, or give to, any person other than Idaho Power, PacifiCorp and their successors and permitted assigns any remedy or claim under or by reason of this Assignment Agreement or any agreements, terms, covenants or conditions hereof and all the agreements, terms, covenants and conditions contained in this Assignment Agreement shall be for the sole and exclusive benefit of Idaho Power, PacifiCorp and their successors and permitted assigns.

7.         Binding Effect .  This Assignment Agreement and all of the provisions hereof shall be binding upon and shall inure to the benefit of PacifiCorp, Idaho Power and their respective successors and permitted assigns.

8.         Governing Law .  This Assignment Agreement shall be governed by and construed in accordance with the laws of the State of Idaho (regardless of the laws that might otherwise govern under applicable principles of conflicts of law) as to all matters, including matters of validity, construction, effect, performance and remedies.

9.         Severability .  Any term or provision of this Assignment Agreement that is invalid or unenforceable in any situation will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

10.       Counterparts .  This Assignment Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Assignment Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.

11.       Notices .  All notice, requests, demands and other communications under this Assignment Agreement shall be given in accordance with Section 7.3 of the Agreement and at the addresses set forth therein.

12.       No Amendment .  No amendment to the terms and conditions of this Assignment Agreement shall be valid and binding on Idaho Power or PacifiCorp unless made in writing and signed by an authorized representative of each of them.

[Signature page follows]                           

         


 


 

 

EXECUTION COPY

 

IN WITNESS WHEREOF, each of Idaho Power and PacifiCorp has caused its duly authorized representative to execute this Populus Assignment and Assumption Agreement as of the date first above written.

 

PACIFICORP

 

By: ________________________
Name:
Title:

 

IDAHO POWER COMPANY

 

By: ________________________
Name:
Title:

           

 


 


 

 

 

 

 

Exhibit G

Form of Hemingway Joint Ownership and Operating Agreement

 

This Hemingway Joint Ownership and Operating Agreement, dated this __ day of ____, 2010 (the “ Execution Date ”), is between Idaho Power Company, an Idaho corporation, acting in its regulated transmission provider function (“ Idaho Power ”), and PacifiCorp, an Oregon corporation, acting in its regulated transmission provider function (“ PacifiCorp ”).  Each of Idaho Power and PacifiCorp are sometimes hereinafter referred to individually as “ Owner ” and collectively as “ Owners ”.

RECITALS:

WHEREAS, Idaho Power owns and operates certain facilities for the transmission of electric power and energy in interstate commerce, including the Hemingway substation (the “ Hemingway Substation ”) which Idaho Power is currently constructing approximately 10 miles southwest of Melba, Idaho to provide additional transfer capability for power to serve Idaho Power’s retail and wholesale customers, including power to serve Idaho Power’s Treasure Valley electric load, and to provide line terminal connections for additional transmission lines including the Gateway West Transmission Project and Boardman-Hemingway Project;

WHEREAS, PacifiCorp owns and operates certain facilities for the transmission of electric power and energy in interstate commerce, including the Midpoint-Summer Lake Line (as defined below) which is located near the Hemingway Substation;

WHEREAS, Idaho Power and PacifiCorp believe that interconnecting the Idaho Power Transmission System at the Hemingway Substation with the PacifiCorp Transmission System on the Midpoint-Summer Lake Line will benefit both of the Owners and their customers;

WHEREAS, Idaho Power and PacifiCorp are parties to that certain Joint Purchase and Sale Agreement, dated as of April 30, 2010 (the “JPSA”), pursuant to which Idaho Power has sold to PacifiCorp and PacifiCorp has purchased from Idaho Power an undivided ownership interest in certain transmission and interconnection equipment and facilities at the Hemingway Substation used in connection with the transmission of electric power and energy (consisting of the equipment and facilities described in Section I of Exhibit A that were installed at the Hemingway Substation on or before the Closing Date, the “Transferred Transmission Facilities”);

WHEREAS, Idaho Power individually owns additional equipment and facilities at the Hemingway Substation that serve the Idaho Power Transmission System and will not be part of the Transmission Facilities (as defined below), but that Idaho Power will make available to support the operation of the Transmission Facilities (as further described in Section II of Exhibit A, the “Common Facilities”);

WHEREAS, Idaho Power individually owns additional equipment and facilities at the Hemingway Substation that will not be part of the Transmission Facilities, jointly owned by the

 


 


 

 

  Parties, or part of the Common Facilities used to support the operation of the Transmission Facilities (the “Idaho Power Individually-Owned Hemingway Facilities”); and

WHEREAS, PacifiCorp and Idaho Power desire to memorialize the terms and conditions by which they will: (i) construct and commission additional transmission and interconnection equipment and facilities at the Hemingway Substation used in connection with the transmission of electric power and energy (consisting of the equipment and facilities described in Section I of Exhibit A that had not been installed at the Hemingway Substation on or before the Closing Date, the “Jointly-Developed Transmission Facilities”); (ii) jointly own and develop the Transferred Transmission Facilities and the Jointly-Developed Transmission Facilities (collectively, the “Transmission Facilities”), (iii) operate and maintain the Transmission Facilities; (iv) interconnect the Idaho Power Transmission System and the PacifiCorp Transmission System at the Hemingway Substation; and (v) establish the obligations of the Operator (as defined below) with respect to compliance with Reliability Standards (as defined below) applicable to the Transmission Facilities.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, PacifiCorp and Idaho Power agree as follows:

ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION

1.01     Definitions .  Unless the context otherwise requires, the following capitalized terms have the meanings given to them below:

Affected Party ” has the meaning given to such term in Section 11.01 .

Affected System ” has the meaning given to such term in the applicable Owner’s OATT.

Affected System Operator ” has the meaning given to such term in the applicable Owner’s OATT.

Affiliate ” means, with respect to a Person, each other Person that, directly or indirectly, controls, is controlled by or is under common control with, such designated Person; provided , however , that in the case of PacifiCorp, “ Affiliate ” means MidAmerican Energy Holdings Company and its direct and indirect subsidiaries.  For the purposes of this definition, “ control ” (including with correlative meanings, the terms “ controlled by ” and “ under common control with ”), as used with respect to any Person, shall mean (i) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (ii) the right to direct the policies or operations of such Person.

Agreement ” means this Joint Ownership and Operating Agreement (including all Exhibits attached hereto), as the same may be amended and supplemented from time to time in accordance with the terms hereof.

 


 


 

 

 

 

Amendment ” has the meaning given to such term in Section 7.01(a) .

Approved Courts ” has the meaning given to such term in Section 18.04 .

Bankrupt ” means, with respect to any Person, that such Person:   (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes insolvent (however evidenced), (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (v) is generally unable to pay its debts as they fall due.

Business Days ” means any day except a Saturday, Sunday and any day which is a legal holiday or a day on which banking institutions in New York, New York are authorized or obligated by Governmental Requirements to close.

Capacity Share ” has the meaning given to such term in Section 4.02 .

Capital Upgrade Notice ” has the meaning given to such term in Section 7.01 .

 “ Claims ” has the meaning given to such term in Section 14.01(a) .

Closing Date ” has the meaning given to such term in the JPSA.

Code ” has the meaning given to such term in Section 17.02 .

Commercially Reasonable Efforts ” means the level of effort that a reasonable electric utility would take in light of the then known facts and circumstances to accomplish the required action at a then commercially reasonable cost (taking into account the benefits to be gained thereby).

Common Facilities ” has the meaning given to such term in the recitals.

Construction Budget ” has the meaning given to such term in Section 3.05(b) .

Construction Costs ” has the meaning given to such term in Section 3.05(a) .

Construction Costs Cap ” has the meaning given to such term in Section 3.05(b) .

Construction Project ” has the meaning given to such term in Section 3.01(a) .

Continuing Owner ” has the meaning given to such term in Section 8.03 .

 

 

Costs ” means, with respect to the Operator’s construction of facilities pursuant to this Agreement, including the Transmission Facilities and capital upgrades and improvements thereto, or such construction on behalf of the Operator, the Operator’s actual cost of (i) preliminary surveys and investigations and property acquisitions in connection with such

 

 


 


facilities and (ii) the development, design, engineering, procurement and construction of such facilities, including an allowance for funds used during construction and applicable overheads determined in accordance with the Operator’s customary practices, as calculated in accordance with FERC’s Uniform System of Accounts.

“Damaged Facilities” has the meaning given to such term in Section 8.01 .

Damage Notice ” has the meaning given to such term in Section 8.01 .

Decommissioning Notice ” has the meaning given to such term in Section 9.03 .

Defaulting Owner ” has the meaning given to such term in Section 12.01 .

Delegate ” has the meaning given to such term in Section 5.04 .

Dispute ” has the meaning given to such term in Section 18.01 .

Dispute Notice ” has the meaning given to such term in Section 18.02 .

Disputing Party ” has the meaning given to such term in Section 18.02 .

Electing Owner ” has the meaning given to such term in Section 7.01(a) .

Event of Default ” has the meaning given to such term in Section 12.01 .

Execution Date ” has the meaning given to such term in the preamble.

Executive(s) ” has the meaning given to such term in Section 18.03(a) .

FERC ” means the Federal Energy Regulatory Commission.

FERC Methodology ” has the meaning given to such term in Section 5.08(b) .

FERC Uniform System of Accounts ” means the Uniform System of Accounts Prescribed for Public Utilities and Licensees Subject to the Jurisdiction of the Federal Power Act prescribed by FERC, and codified as of the Execution Date at 18 C.F.R. Part 101, as the same may be amended from time to time.

Force Majeure ” has the meaning given to such term in Section 11.01 .

Good Utility Practice ” means any of the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, would have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition.  Good Utility Practice is not intended to be limited to the optimum practice, method, or act to the exclusion of all others, but rather to be acceptable practices, methods, or

 


 


 

 

 

 

acts generally accepted in the region, including those practices required by Federal Power Act section 215(a)(4), 16 U.S.C. § 824o(a)(4)(2006).

Governmental Authority ” means any federal, state, local or municipal governmental body; any governmental, quasi-governmental, regulatory or administrative agency, commission, body or other authority exercising or entitled to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power, including FERC, NERC or any regional reliability council; or any court or governmental tribunal, in each case, having jurisdiction over either Owner (including Idaho Power in its capacity as Operator) or any of its Affiliates or the ownership, use, operation and maintenance, repair and reconstruction, or retirement and decommissioning of all or a portion of the Transmission Facilities.

Governmental Authorizations ” means any license, permit, order, approval, filing, waiver, exemption, variance, clearance, entitlement, allowance, franchise, or other authorization from or by a Governmental Authority.

Governmental Requirements ” means all laws, statutes, ordinances, rules, regulations, codes, and similar acts or promulgations or other legally enforceable requirements of any Governmental Authority.

Hemingway Access Easement Agreement ” means the Hemingway Access Easement Agreement, dated as of approximately even date herewith, entered into by Idaho Power and PacifiCorp.

Hemingway Substation ” has the meaning given to such term in the recitals.

Hemingway-Summer Lake Line ” means, beginning on the date the Interconnection is energized, the 500 kV transmission line extending from the Hemingway Substation to its terminus at the Summer Lake Substation.

Idaho Power ” has the meaning given to such term in the preamble.

Idaho Power Transmission System ” means the transmission facilities owned, controlled or operated by Idaho Power that are used to transmit electricity to Idaho Power’s retail and wholesale electric service customers.

Idaho Power Individually-Owned Hemingway Facilities ” has the meaning given to such term in the recitals.

Indemnified Party ” has the meaning given to such term in Section 14.01(a) .

Indemnifying Party ” has the meaning given to such term in Section 14.01(a) .

Interconnection ” means the interconnection of the Hemingway Substation with (i) the Midpoint-Hemingway Line, (ii) the Hemingway-Summer Lake Line, and (iii) the Hemingway 500/230 kV transformer at the Point of Interconnection, in each case, as more specifically described in the diagrams set forth in Exhibit G .

 


 


 

 

 

 

Interconnection Customer ” has the meaning given to such term in the applicable Owner’s OATT.

Interconnection Owner ” has the meaning given to such term in Section 6.03 .

Interrupting Owner ” has the meaning given to such term in Section 10.05(c) .

Jointly-Developed Transmission Facilities ” has the meaning given to such term in the recitals.

JPSA ” has the meaning given to such term in the recitals.

Losses ” mean any and all damages and losses, deficiencies, liabilities, taxes, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses, whether or not resulting from third party claims, including the costs and expenses of any and all actions and demands, assessments, judgments, settlements and compromises relating thereto and the costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder and costs and expenses of remediation (including, in the case of remediation, all expenses and costs associated with financial assurance); provided , however , that in no event shall Losses include lost profits or damages and losses excluded under Section 14.08 .

 

Manager ” has the meaning given to such term in Section 18.03(a) .

Metering Equipment ” means all metering facilities and equipment to be constructed and installed as part of the Transmission Facilities, as further described in Exhibit A .

Midpoint Substation ” means the existing substation near Jerome, Idaho owned by PacifiCorp.

Midpoint-Hemingway Line ” means, beginning on the date the Interconnection is energized, the 500 kV transmission line extending from the Midpoint Substation to its terminus at the Hemingway Substation.

Midpoint-Summer Lake Line ” means (i) with respect to the period beginning on the Execution Date and continuing up to but not including the date the Interconnection is energized, the existing 500 kV transmission line extending from the Midpoint Substation to the Summer Lake Substation, and (ii) with respect to the period beginning on the date the Interconnection is energized through the Term, the Midpoint-Hemingway Line and the Hemingway-Summer Lake Line.

Monthly Common Facilities Charge ” has the meaning set forth in Exhibit F .

Monthly Transmission Facilities O&M Charge ” has the meaning set forth in Exhibit F .

NERC ” means the North American Electric Reliability Council.

Non-Defaulting Owner ” means an Owner that is not a Defaulting Owner.

 


 


 

 

 

 

Non-Operating Owner ” means PacifiCorp.

OATT ” means, with respect to each Owner, the Owner’s Open Access Transmission Tariff on file with FERC.

Operator ” means Idaho Power Company, in its capacity as Operator under this Agreement.

Other Costs ” has the meaning given to such term in Section 5.08(a) .

Other Costs Records ” has the meaning given to such term in Section 5.06(b) .

Owner ” and “ Owners ” has the meaning given to such term in the preamble.

Ownership Interest ” means the tenant-in-common undivided ownership interest of an Owner in the Transmission Facilities which is set forth on Exhibit C , as the same may be adjusted from time to time pursuant to Exhibit C .

PacifiCorp ” has the meaning given to such term in the preamble.

PacifiCorp Transmission System ” means the transmission facilities owned, controlled or operated by PacifiCorp that are used to transmit electricity to PacifiCorp’s retail and wholesale electric service customers.

Party ” means Idaho Power or PacifiCorp individually, and “ Parties ” means Idaho Power and PacifiCorp collectively.

Person ” means an individual, partnership, corporation, limited liability company, joint venture, association, trust, unincorporated organization, Governmental Authority, or other form of entity.

Point of Interconnection ” means the points of interconnection between the Transmission Facilities and each of the Owners’ Transmission Systems, as described in the diagrams set forth in Exhibit G .

Proprietary Information ” has the meaning given to such term in Section 15.06 .

Qualified Owner ” means an Owner that has an OATT on file with FERC under which it is authorized to provide transmission service on its transmission system.

Reduction Event ” has the meaning given to such term in Section 6.02 .

Regulations ” has the meaning given to such term in Section 17.02 .

Reliability Standards ” means all reliability criteria for system users established by WECC or such other regional or national standard setting body with authority to promulgate or set such criteria (including NERC’s reliability standards), as such criteria may be adopted or modified from time to time.

 


 


 

 

 

 

Remaining Owner ” has the meaning given to such term in Section 9.03 .

Representatives ” means, in respect of an Owner or Operator, the directors, officers, shareholders, partners, members, employees, agents, consultants, contractors or other representatives of such Owner or Operator.

Rights-of-Way ” means all rights-of-way, easements and other interests (including fee interests) in real property on which the Transmission Facilities are or will be constructed that are owned by Idaho Power or its Affiliates.

Summer Lake Substation ” means the existing substation near Summer Lake, Oregon owned by PacifiCorp.

Tap Line Upgrades ” has the meaning given to such term in Section 7.01(f) .

Tax Indemnifying Party ” has the meaning given to such term in Section 17.04 .

Tax Indemnitee Party ” has the meaning given to such term in Section 17.04 .

Taxes ” has the meaning given to such term in Section 17.03 .

Term ” has the meaning given to such term in Section 2.03 .

Transferee ” has the meaning given to such term in Section 15.01 .

Transferor ” has the meaning given to such term in Section 15.01 .

Transferred Transmission Facilities ” has the meaning given to such term in the recitals.

Transmission Facilities ” has the meaning given to such term in the recitals.

Transmission Facilities Contracts ” means (i) the “Hemingway Substation Facilities Contracts” as defined in the JSPA, (ii) the Right-of-Way Grant IDI-36034 from the United States Department of Interior, Bureau of Land Management to Idaho Power, dated as of June 4, 2009, with respect to portions of the Hemingway Substation site, and (iii) each agreement, instrument or other contract relating to or in connection with the Transmission Facilities that the Operator enters into pursuant to this Agreement.

 

Transmission System ” means, in the case of Idaho Power, the Idaho Power Transmission System, and, in the case of PacifiCorp, the PacifiCorp Transmission System.

Unauthorized Use ” means the unauthorized use of the generation or transmission facilities of any other Person.

WECC ” means the Western Electricity Coordinating Council or any successor thereto.

WIS Agreement ” has the meaning given to such term in Section 14.08(b) .

 


 


 

 

 

 

1.02     Rules of Construction .    The following rules of interpretation shall apply in this Agreement:

(a)                The masculine shall include the feminine and neuter.

(b)               References to “Articles,” “Sections” and “Exhibits” shall be to articles, sections and exhibits of this Agreement.

(c)                The Exhibits attached hereto are incorporated in and are intended to be a part of this Agreement.

(d)               This Agreement was negotiated and prepared by both Parties with the advice and participation of counsel.  The Parties have agreed to the wording of this Agreement and none of the provisions hereof shall be construed against one Party on the ground that such Party is the author of this Agreement or any part hereof.

(e)                Each reference in this Agreement to any agreement or document or a portion or provision thereof shall be construed as a reference to the relevant agreement or document as amended, supplemented or otherwise modified from time to time with the written approval of both the Parties.

(f)                Each reference in this Agreement to Governmental Requirements and to terms defined in, and other provisions of, Governmental Requirements shall be references to the same (or a successor to the same) as amended, supplemented or otherwise modified from time to time.

(g)               The term “day” shall mean a calendar day, the term “month” shall mean a calendar month, and the term “year” shall mean a calendar year.  Whenever an event is to be performed, a period commences or ends, or a payment is to be made on or by a particular date and the date in question falls on a day which is not a Business Day, the event shall be performed, or the payment shall be made, on the next succeeding Business Day; provided, however , that all calculations shall be made regardless of whether any given day is a Business Day and whether or not any given period ends on a Business Day.

(h)               Each reference in this Agreement to a Person includes its successors and permitted assigns; and each reference to a Governmental Authority includes any Governmental Authority succeeding to its functions and capacities.

(i)         In this Agreement, the words “include,” “includes” and “including” are to be construed as being at all times followed by the words “without limitation.”

(j)         The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall, unless otherwise specified, refer to this Agreement as a whole and not to any particular provision of this Agreement.

ARTICLE II
TERM

2.01     Effectiveness of this Agreement .  This Agreement shall become effective upon the Execution Date.

 


 


 

 

 

 

2.02     FERC Filing .  Within five (5) Business Days after the Execution Date, the Operator, on behalf of the Owners, shall file this Agreement with FERC as a “ Rate Schedule ” within the meaning of Part 35 of FERC’s regulations.  Each of the Owners shall support this Agreement in its current form at FERC when filed.  Each Owner shall reasonably cooperate with the Operator with respect to obtaining FERC approval of such FERC filing and provide any information, including testimony, reasonably required by the Operator to comply with the applicable FERC filing requirements.

2.03     Term .  The term of this Agreement (“ Term ”) shall commence upon the Execution Date and shall continue in full force and effect until terminated in accordance with the provisions hereof.

2.04     Termination .   Subject to Section 2.05 , this Agreement shall terminate if one or more of the following events occur:

(a)        the Transmission Facilities are damaged and destroyed and the Owners decide not to repair or rebuild (or cannot reach agreement to repair or rebuild) the Damaged Facilities in accordance with Article VIII ;

(b)        the Transmission Facilities are retired and decommissioned in accordance with Article IX ;

(c)        all of the Ownership Interests in the Transmission Facilities are owned by only one Owner;

(d)       by mutual written agreement of the Owners; or

(e)        this Agreement is terminated by exercise of remedies pursuant to Section 12.03 .

2.05     Effect of Termination .

(a)        If this Agreement is terminated pursuant to Section 2.04 , then, except as for those provisions that are expressly intended to survive termination and, subject to Section 2.05(b) and receipt of any necessary Governmental Authorizations required by applicable Governmental Requirements, this Agreement shall terminate and become void and of no further force and effect, without further action by either Party, provided that neither Party shall be relieved from any of its obligations or liabilities hereunder accruing prior thereto.

(b)        In the event that this Agreement is terminated pursuant to Section 2.04 and the Non-Operating Owner continues to own all or a portion of the Ownership Interests in the Transmission Facilities, then:  (i) the Operator shall, upon written notice from the Non-Operating Owner delivered to the Operator no later than fifteen (15) Business Days after termination of this Agreement pursuant to Section 2.04 , continue to perform such of its obligations and covenants in Articles VI , VII , VIII , X and XVI as are set forth in the notice; (ii) such obligations and covenants, together with Articles V , VI , VII , VIII , XI , X , XII , XIV , XV , XVIII , XIX and XX (to the extent applicable to the surviving covenants and obligations), shall continue in full force and

 


 


effect notwithstanding the termination of this Agreement; and (iii) the Parties shall amend this Agreement to reflect such changes to this Agreement as shall be necessary and mutually acceptable to the Parties to conform this Agreement to the surviving provisions of this Agreement in accordance with this Section 2.05(b) .

 

ARTICLE III
CONSTRUCTION

3.01     Engineering, Design and Construction of the Jointly-Developed Transmission Facilities .

(a)        The Operator shall design, engineer, procure, construct, install, manage and perform all other activities necessary for the development, construction and commissioning  of the Jointly-Developed Transmission Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations (the “ Construction Project ”).

(b)        The Operator shall use Commercially Reasonable Efforts to achieve each of the milestones by its respective milestone date as set forth in Exhibit H .  The Operator shall provide the Owners with prompt written notice of the date upon which it has achieved each milestone.

3.02     Interconnection PacifiCorp shall take the Midpoint-Summer Lake Line out of service for approximately three consecutive weeks during May, 2010 to enable the Operator to interconnect the Transmission Facilities with the Midpoint-Summer Lake Line.  The Operator shall submit a request to PacifiCorp for the specific dates of the outage, the approval of which shall not be unreasonably withheld by PacifiCorp.  The Owners and the Operator recognize the need to use Commercially Reasonable Efforts to expedite all work with all due diligence, consistent with Good Utility Practice , so as to minimize outage times.

3.03     Rights-of-Way .  The Operator shall maintain the Rights-of-Way in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.

3.04     Monthly Reports .  Each month prior to the final completion and commissioning of the Transmission Facilities, the Operator shall prepare and deliver to the Owners reasonably detailed status reports, in form and substance reasonably acceptable to the Owners, regarding the implementation of the Construction Project, including (i) any expected delays (and their duration) in achieving any milestone by the respective milestone date as set forth on Exhibit H and (ii) the aggregate amount of Construction Costs incurred to date compared to the budgeted amount of Construction Costs set forth in the Construction Budget.

3.05     Development and Construction Costs .

(a)        Each Owner shall be responsible for, and shall pay, in accordance with this Section 3.05 , its pro rata share (based on its Ownership Interest) of all Costs (up to the Construction Costs Cap) actually incurred by or on behalf of the Operator in the performance of

 


 


the Construction Project pursuant to Article III or otherwise incurred by or on behalf of Idaho Power in the construction of the Transmission Facilities (collectively, the “Construction Costs”).

(b)        The Operator shall promptly notify the Owners in writing if it reasonably believes that the total Construction Costs to be incurred by or on behalf of the Operator or otherwise incurred by or on behalf of Idaho Power in the construction of the Transmission Facilities will exceed the greater of (i) five percent (5%) of the aggregate amount of Construction Costs provided for in the budget attached hereto as Exhibit E (the “ Construction Budget ”), as the same may be revised from time to time pursuant to this Section 3.05(b ), and (ii) One Million Four Hundred Thousand Dollars ($1,400,000) (the “ Construction Costs Cap ”).  Thereafter, the Operator shall submit to the Owners for their approval, such approval not to be unreasonably withheld or delayed, a revised Construction Budget which shows the aggregate amount of Construction Costs that the Operator reasonably believes will be incurred by or on behalf of the Operator to complete the Construction Project in accordance with Article III or otherwise incurred by or on behalf of Idaho Power in the construction of the Transmission Facilities.  The notice and approval rights set forth above in this Section 3.05(b) shall apply to the revised Construction Budget as well.  Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Operator be obligated to incur Construction Costs in excess of the Construction Costs Cap.

(c)        The Operator shall provide the Owners with invoices showing each Owner’s pro rata share (based on its Ownership Interest) of the Construction Costs, and the Non-Operating Owner shall pay the Operator its pro rata share (based on its Ownership Interests) of the Construction Costs, in accordance with Section 5.08 and Section 5.09 .

ARTICLE IV
OWNERSHIP INTERESTS

4.01     Ownership Interests .

(a)        Pursuant to the JPSA, as of the Closing Date, each Owner owns an undivided ownership interest, equal to its Ownership Interest, in the Transmission Facilities.

(b)        The Owners agree that they shall enter into such additional documentation as shall reasonably be required to document any change in the Ownership Interests of the Owners contemplated hereby, provided that in no event shall an Owner be responsible for paying any amount to the other Owner as a result of any change in any Ownership Interest or the Transmission Facilities except as expressly provided for in this Agreement or as otherwise agreed to by the Parties in writing.

4.02     Owner’s Capacity Share .   Each of the Owners shall be entitled to a pro rata share (based on its Ownership Interest) of the bi-directional transmission capacity of the Transmission Facilities (“ Capacity Share ”).  Subject to Section 6.02 , each Owner’s Capacity Share entitles the Owner to provide and schedule transmission service over the Transmission Facilities to the extent of the Owner’s Capacity Share and to schedule and transmit an amount of energy commensurate with the Owner’s Capacity Share over the Transmission Facilities on its own behalf or on behalf of the Owner’s transmission customers; provided , however , that at no time

 


 


shall an Owner be entitled to post, sell, schedule or transmit more than its Capacity Share of transmission capacity (and a commensurate amount of energy) on the Transmission Facilities, unless otherwise mutually agreed to in writing by the Owners.  Any use of the Transmission Facilities, other than as provided for in this Section 4.02 , shall be subject to the prior written approval of both Owners.

4.03     Qualified Owner.  Each Owner shall take all actions required to continue to be a Qualified Owner during the Term.  If at any time during the Term an Owner ceases to be a Qualified Owner, then such Owner shall immediately provide notice thereof to the other Owner and take all actions required to resume being a Qualified Owner.

4.04     No Right to Use .   For the avoidance of doubt, the provisions of this Agreement shall not confer upon either Owner the right to use or transmit energy over any transmission facilities owned by the other Owner (other than the Transmission Facilities as provided for herein).

4.05     Payments .   All payments required to be made by or on behalf of the Owners under the terms of this Agreement, including payments to the Operator of the Monthly Transmission Facilities O&M Charge, the Monthly Common Facilities Charge and Other Costs, shall be made to the account or accounts designated by the Owner or Operator to which the payment is owed, by wire transfer (in immediately available funds in the lawful currency of the United States).

4.06     Waiver of Partition Rights.    The Owners shall own their undivided Ownership Interests in the Transmission Facilities as tenants-in-common.  The Owners acknowledge that any exercise of the remedy of partition (whether at law or in equity) of the Transmission Facilities or any portion thereof would be impracticable in view of the purposes and requirements of this Agreement, would violate the spirit and intent of this Agreement, and would defeat the Owners’ intentions and reasonable expectations as well as the consideration upon which each Owner entered into this Agreement.  Accordingly, each Owner agrees that during the Term it (a) will not, directly or indirectly, commence, maintain, support or join in any action or proceedings of any kind to partition the Transmission Facilities or any portion thereof, and (b) waives, after consultation with its qualified legal counsel, any and all rights that it may have under this Agreement or applicable Governmental Requirements (whether at law or in equity) or otherwise to commence, maintain, support or join in any such action or proceeding.  Each Owner acknowledges that the other Owner has entered into and will perform the terms of this Agreement in reliance upon the other Owner’s agreement and adherence to the terms of this Section 4.06 , and would not have entered into this Agreement but for such reliance; and that it would be unjust and inequitable for any Owner to violate or to seek relief from any provision of this Section 4.06 .

ARTICLE V
OPERATOR

5.01     Appointment of Operator .

(a)        The Owners hereby appoint Idaho Power, and Idaho Power hereby accepts appointment, to serve as Operator of the Transmission Facilities and the Common Facilities for

 


 


 

 

 

 

the Owners and to perform the other covenants and obligations of the Operator expressly set forth in this Agreement, in accordance with the terms and conditions of this Agreement.

(b)        Notwithstanding anything to the contrary contained in this Agreement or Governmental Requirements, the Owners agree that the Operator shall have no obligations, responsibilities or duties to the Owners other than as are expressly provided for in this Agreement.

5.02     Authority of Operator .

(a)        The Operator shall be responsible in all respects for the construction of the Jointly-Developed Transmission Facilities and the operation and maintenance of the Transmission Facilities and the Common Facilities in accordance with Article III and Articles V-X .  Without limiting the foregoing, the Operator shall supervise and perform, or cause to be supervised and performed:  (i) the construction of the Jointly-Developed Transmission Facilities in accordance with Article III and this Article V , (ii) the physical operation and maintenance of, interconnection to, design of, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of, the Transmission Facilities in accordance with this Article V and Articles VI-X , and (iii) the physical operation and maintenance of the Common Facilities in accordance with Section 6.04 .  In the performance of its obligations under this Agreement, the Operator shall have authority, subject to the other terms of this Article V and Article III and Articles VI-X , to take any or all of the actions it reasonably determines are necessary to perform its obligations under this Agreement, including to make decisions on all matters relating to and to contract for, select and purchase on behalf of the Owners all materials, equipment and services (including from third-party consultants and advisors) necessary for:  (A) the engineering, design and construction of the Jointly-Developed Transmission Facilities pursuant to Article III , (B) the physical operation and maintenance of the Transmission Facilities pursuant to Article VI ; (C) the interconnection of Interconnection Customers to the Transmission Facilities pursuant to Section 6.03 ; (D) the development, design, engineering, procurement, construction, permitting, completion, testing and commissioning of capital upgrades or improvements to the Transmission Facilities pursuant to Article VII ; (E) the development, design, engineering, procurement, construction, permitting, completion, testing and commissioning of repairs to and reconstruction of the Transmission Facilities pursuant to Article VIII ; and (F) the retirement and decommissioning of the Transmission Facilities pursuant to Article IX.

(b)        The Owners and the Operator agree that title to all Jointly-Developed Transmission Facilities and capital upgrades and improvements constructed by or on behalf of the Operator pursuant to Section 6.01 shall vest with the Owners and shall be jointly owned by the Owners as tenants-in-common in accordance with their respective Ownership Interests.  Title to all capital upgrades and improvements constructed by or on behalf of the Operator pursuant to Section 7.01 shall vest with and be owned by the Owners in accordance with Section 7.01 .

 

(c)        The Operator will exercise or enforce all of Idaho Power's benefits, rights and remedies under the Transmission Facilities Contracts for the benefit of the Owners pro rata (in accordance with their respective Ownership Interests) and without adverse distinction between the Owners.  In furtherance and not in limitation of the immediately preceding sentence,

 

 


 


the Operator agrees to transfer, assign, distribute, pay over or otherwise make available to the Non-Operating Owner, the Non-Operating Owner’s pro rata share (based on its Ownership Interest) in any payments or proceeds obtained pursuant to any Transmission Facilities Contract.  Notwithstanding anything to the contrary contained in this Agreement, the Owners agree that only the Operator shall be entitled to exercise or enforce Idaho Power’s benefits, rights and remedies under the Transmission Facilities Contracts.

5.03     Standard of Work.   The Operator shall perform all of its obligations under this Agreement as an independent contractor and in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.

5.04     Delegation of Responsibilities .   The Operator may, in its sole and absolute discretion, delegate all or a portion of its obligations under this Agreement to one or more Persons (each, a “ Delegate ”).  Notwithstanding any such delegation, the Operator shall remain responsible and liable for all such delegated obligations in accordance with the terms of this Agreement.

5.05     Governmental Authorizations .

 

(a)                The Operator is authorized to prepare and submit to all appropriate Governmental Authorities the necessary reports, applications, plans, specifications and other documents to procure all Governmental Authorizations required to perform its obligations under this Agreement with respect to the Transmission Facilities or to comply with Governmental Requirements, provided that the Operator shall consult with the Owners prior to the submission of any such reports, application, plans, specification and other documents.  To the extent permitted by Governmental Requirements, the Operator shall use Commercially Reasonable Efforts to obtain and structure all Government Authorizations for which it applies after the Execution Date in such a way as to recognize each Owner’s applicable Ownership Interests and Capacity Share as contemplated by this Agreement.  Notwithstanding anything to the contrary in this Agreement, nothing in Section 5.05 shall obligate the Operator to prepare and submit to appropriate Governmental Authorities any reports, applications, plans, specifications and other documents to procure any Governmental Authorizations required by the Owners in connection with their ownership of an Ownership Interest in the Transmission Facilities or the recovery of any costs and expenses in connection therewith.

(b)               To the extent that the Operator cannot obtain a Governmental Authorization pursuant to Section 5.05(a) on behalf of one or both of the Owners, each such Owner shall:  (i) be responsible for preparing and submitting to the appropriate Governmental Authority the necessary reports, applications, plans, specifications and other documents to procure such Governmental Authorization; and (ii) exercise all Commercially Reasonable Efforts to obtain such Governmental Authorization.  Unless and until the Owner or Owners are able to obtain such Governmental Authorizations, the Operator shall not perform or continue to perform any of the Construction Project if to do so would result in the Owner or Owners being in violation of applicable Governmental Requirements or Governmental Authorizations.

 


 


 

 

 

 

(c)                Each Owner shall, at its own cost: (i) reasonably cooperate and support the Operator in obtaining any Governmental Authorizations required pursuant to Section 5.05(a) ; and (ii) reasonably respond to inquiries or requests issued to it by any Governmental Authority in respect of such Governmental Authorization; provided , however , that an Owner shall not be obligated pursuant to this Section 5.05(c) to disclose Proprietary Information except to the extent that it is otherwise required to disclose such Proprietary Information:  (A) by applicable Governmental Requirements; (B) by any Governmental Authority; or (C) pursuant to the express terms of this Agreement.

5.06     Access .

(a)        The Operator shall, to the extent possible under any Rights-of-Ways, provide each Owner and its designees reasonable access to the Transmission Facilities site to permit the Owners and their designees to inspect the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities, provided that (i) the Owners and their designees do not interfere with the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities or any portion thereof or pose a safety hazard; (ii) the Owners and their designees comply with any requirements of any rights-of-ways, license, easement or other real property interest agreement applicable to the Transmission Facilities; and (iii) the Owners and their designees performing the inspection comply with the Operator’s or any other contractor’s safety and security rules, as more specifically set out in the Hemingway Access Easement Agreement.

 

(b)        Each Owner may, at its cost, at any time during normal business hours and with reasonable prior notice of not less than ten (10) Business Days, but not more often than once in any twelve (12) month period, inspect and audit the books and records of the Operator and any of its Affiliates and any Delegate (and the Operator shall secure such rights for the Owners from its Affiliates and any Delegate) involved in the provision of services pursuant to this Agreement (“ Other Costs Records ”), to the extent reasonably relating to the determination of the Other Costs for which the Owners are liable under this Agreement as shown on an invoice provided to the Owners pursuant to Section 5.08 within twelve (12) months prior to the date of the audit notice.  The Operator shall, and shall cause any of its relevant Affiliates and any Delegate, to keep and maintain all such Other Costs Records to the extent reasonably relating to the determination of the Other Costs for which the Owners are liable under this Agreement and make such Other Costs Records available to the Owners in accordance with the terms of this Agreement.  If any audit discloses that, during such twelve (12)-month period, an overpayment or underpayment of Other Costs has been made by the Non-Operating Owner or the amount of any Other Costs allocated to the Owners on an invoice is incorrect, then such overpayment, underpayment or incorrect amount shall be resolved pursuant to Section 5.09 .  The Owner requesting the audit shall reimburse one hundred percent (100%) of all reasonable costs and expenses (including internal costs and expenses) incurred by or on behalf of the Operator and any of its Affiliates and any Delegate in complying with the provisions of this Section 5.06(b) , provided that the Owner shall not be required to reimburse any such costs if the audit determines that the Owner has made more than Twenty-Five Thousand Dollars ($25,000) in overpayments

 


 


 

 


of Other Costs or more than Twenty-Five Thousand Dollars ($25,000) in Other Costs have been incorrectly allocated to the Owner.

5.07     Insurance .

 

 

(a)        Owner Insurance .  Each of the Owners shall be responsible for obtaining and maintaining during the Term insurance covering their respective legal liabilities related to their Ownership Interest in the Transmission Facilities.  Insurance required by this Section 5.07(a) will be placed with appropriate carriers and in amounts in accordance with Good Utility Practice and any applicable Governmental Requirements.

 

(b)        Property Insurance .

 

(i)         The Operator, on behalf of the Owners and any other named insureds or loss payees, will:  (A) determine the appropriate property insurance coverages, minimum amounts, self-insured amounts, deductibles and other insurance policy terms; (B) obtain and maintain such property insurance during the Term; and (C) be solely responsible for pursuing claims and/or negotiating settlements in respect of claims under such insurance coverages.  The Operator shall be compensated for the costs of obtaining and maintaining such insurance (including any premiums, taxes, and fees, deductibles, self-insurance or non-insured costs) through the Monthly Transmission Facilities O&M Charge.

 

(ii)        Physical damage to substations and equipment therein that is included as part of the Transmission Facilities in types and amounts that are reasonable and customary for similarly situated utilities.  Coverage may be insured or self-insured, or any combination of insured and self-insured.

 

(iii)       Insurance for physical damage to the transmission line and any related equipment outside the boundaries of any substation and included as part of the Transmission Facilities shall be fully self-insured.

 

5.08     Invoices .

(a)        The Non-Operating Owner shall pay the Operator the Monthly Transmission Facilities O&M Charge and the Monthly Common Facilities Charge calculated in accordance with Exhibit F as compensation for the Operator’s services under this Agreement.  Each Owner shall be responsible for its pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise or this Agreement specifies otherwise) of costs incurred by or on behalf of the Operator under Sections 3.05(a) , 6.01(c) , 7.01(b) , 7.01(f) , 8.01 , 8.05(b) , 9.02 and 17.03 (the “ Other Costs ”).   In the event that the Operator incurs, or reasonably expects to incur, significant Other Costs (other than Construction Costs) in excess of One Hundred Thousand Dollars ($100,000), it shall immediately notify the Owners in writing of such Other Costs.

(b)        Not later than thirty (30) days after the end of each month during the Term, the Operator will deliver to the Owners an invoice which will show the Monthly

 


 


Transmission Facilities O&M Charge and Monthly Common Facilities Charge payable by the Non-Operating Owner and each Owner’s pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise) of Other Costs.  The Non-Operating Owner shall pay the Monthly Transmission Facilities O&M Charge, the Monthly Common Facilities Charge, and its pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise) of Other Costs shown on the invoice no later than thirty (30) days after the date of the invoice.  Any payment past due will accrue interest, per annum, calculated in accordance with the methodology specified for interest in the FERC regulations at 18 C.F.R. § 35.19a(a)(2)(iii) (the “ FERC Methodology ”).  The failure by the Operator to timely deliver an invoice shall not relieve PacifiCorp of its payment obligation in respect of the Monthly Transmission Facilities O&M Charge, Monthly Common Facilities Charge and Other Costs as shown on such invoice, or release Idaho Power of its responsibility for its share of the Other Costs in such invoice.
 

5.09     Disputed Amounts .   If the Non-Operating Owner disputes any portion of any amount specified in an invoice delivered by the Operator pursuant to Section 5.08 , the Non-Operating Owner shall pay its total amount of the invoice when due, and, if actually known at the time by the Non-Operating Owner, identify the disputed amount and state that the disputed amount is being paid under protest.  Any disputed amount shall be resolved pursuant to the provisions of Article XVIII .  If it is determined pursuant to Article XVIII that an overpayment or underpayment has been made by the Non-Operating Owner or the amount of any Other Costs allocated to the Owners on an invoice is incorrect, then (i) in the case of any overpayment by the Non-Operating Owner, the Operator shall promptly return the amount of the overpayment (or credit the amount of the overpayment on the next invoice) to the Non-Operating Owner, (ii) in the case of an underpayment by the Non-Operating Owner, the Non-Operating Owner shall promptly pay the amount of the underpayment to the Operator (for the benefit of the other Owner), and (iii) in the case of an incorrect allocation of Other Costs to an Owner, the allocations of Other Costs on the next invoice shall be adjusted to correct for such incorrect allocation, in each case, together with interest for the period from the date of overpayment, underpayment, or incorrect allocation, until such amount has been paid or credited against a future invoice calculated in the manner prescribed for calculating interest on refunds under the FERC Methodology.

5.10     Assistance .   Each Owner shall cooperate with the Operator promptly, as and when reasonably requested by the Operator, to assist the Operator in the performance of its duties, responsibilities and obligations under this Agreement, including executing and delivering from time to time such additional documents, certificates or instruments, and taking such additional actions, as may be reasonably requested by the Operator.  Each Owner shall bear its own costs for providing such cooperation and assistance as requested by the Operator unless the Owners agree otherwise in writing.  Nothing in this Agreement shall preclude an Owner from exercising any rights expressly granted it under this Agreement or taking any action (or having its Affiliates take any action) with respect to any other transmission project, including any such project that may compete with the Transmission Facilities.

 

 

 


 


 

 

 

 

5.11     Remedies .

(a)        Notwithstanding any provision to the contrary contained in this Agreement, the Operator shall have no liability to the Non-Operating Owner in connection with the performance of its covenants and obligations under this Agreement, except as provided in this Section 5.11 and Section 14.01(c) .  The Non-Operating Owner agrees that it has a duty to mitigate any damages and shall use Commercially Reasonable Efforts to minimize any damages it may incur as a result of the Operator’s failure to perform or breach of any of its covenants or obligations under this Agreement.

(b)        The Owners and Operator acknowledge that the obligations and covenants performed by the Operator hereunder are unique and that the Non-Operating Owner will be irreparably injured should such obligations and covenants not be performed in accordance with the terms and conditions of this Agreement.  Consequently, the Non-Operating Owner will not have an adequate remedy at law if the Operator shall fail to perform its obligations and covenants hereunder.  The Non-Operating Owner shall have the right, in addition to any other remedy available under this Agreement, to specific performance of the Operator’s obligations and covenants hereunder, and the Owners and Operator agree not to take a position in any proceeding arising out of this Agreement to the effect that the Non-Operating Party has an adequate remedy at law.

ARTICLE VI
OPERATION AND MAINTENANCE; CURTAILMENT;
INTERCONNECTION WITH THIRD PARTIES
; COMMON FACILITIES

6.01     Operation and Maintenance; Capital Upgrades and Improvements .

(a)        The Operator shall supervise and perform, or cause to be supervised and performed, the physical operation and maintenance of the Transmission Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.  Subject to Section 5.04 , the Operator may utilize its employees and supervisory personnel, and any independent technical advisors, consultants, contractors and agents which it may select, as may be required to perform the Operator’s obligations under this Section 6.01 .

(b)        The Operator shall make maintenance renewals and replacements to the Transmission Facilities (i) the costs of which are recordable as an operation and maintenance expense under the FERC Uniform System of Accounts; and (ii) that (A) are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice, and/or (B) are required by applicable Governmental Requirements and Governmental Authorizations.  Such maintenance renewals and replacements to the Transmission Facilities are included in the services for which the Operator is compensated by the Monthly Transmission Facilities O&M Charge.  The Operator shall not separately invoice the Owners for the costs of such maintenance renewals and replacements to the Transmission Facilities.  Notwithstanding anything to the contrary contained in this Agreement, any maintenance renewals and replacements made pursuant to this Section 6.01(b) shall be Transmission Facilities for purposes of this Agreement.

 


 


 

 

 

 

(c)        The Operator shall make capital upgrades and improvements to the Transmission Facilities (i) the costs of which are recordable as capital expenditures under the FERC Uniform System of Accounts, and (ii) which (A) are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice and/or (B) are required by applicable Governmental Requirements and Governmental Authorizations.  The Operator shall consult with the Owners and receive their prior approval, such approval not to be unreasonably withheld, delayed or conditioned, with respect to any capital upgrade or improvement for which the Operator reasonably expects to incur total project costs that exceed Two Hundred Fifty Thousand Dollars ($250,000).  The Owners shall be responsible for their pro rata share (based on their Ownership Interests) of any Costs incurred by or on behalf of the Operator in making such capital upgrades or improvements.  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades and improvements made pursuant to this Section 6.01(c) shall be Transmission Facilities for purposes of this Agreement.

6.02     Curtailment .   The Operator shall notify the Owners as soon as reasonably practicable upon becoming aware of any planned or unplanned event or circumstance, including an emergency condition or a rating study to comply with applicable Governmental Requirements or Reliability Standards, which physically or otherwise reduces or may reduce the amount of transmission capacity on all or a portion of the Transmission Facilities (“ Reduction Event ”), including the aggregate amount of reduction in the transmission capacity of the Transmission Facilities to the extent known by the Operator.  In the event of a Reduction Event, the Operator shall take such actions as the Operator may reasonably deem prudent and necessary to terminate the Reduction Event and to preserve and maintain the reliability, safety, integrity and operability of the applicable Transmission Facilities and to protect the health and safety of the public.  Each of the Owners shall provide notice of each Reduction Event in accordance with its respective OATT.

6.03     Interconnection with Third Parties .   The Owners acknowledge and agree that all third-party Interconnection Customer requests for interconnection to any of the Transmission Facilities must be coordinated with the Operator and processed in a manner consistent with the Owner’s OATT to which the Interconnection Customer’s request was made (“ Interconnection Owner ”).  An Interconnection Owner in receipt of a third-party Interconnection Customer request for interconnection with the Transmission Facilities will promptly notify the Operator and thereafter the Owners and the Operator will coordinate and cooperate to process the interconnection request.  The Operator will coordinate the conduct of any studies required to determine the impact of the interconnection request on the Transmission Facilities and the Affected Systems with Affected System Operators, including the Owners, in accordance with the Interconnection Owner’s OATT.  The Operator will include the Owners and such Affected System Operators in all meetings held with Interconnection Customers as required by the Interconnection Owner’s OATT.

6.04     Common Facilities .   The Operator shall make the Common Facilities available to the Owners to support the operation of the Transmission Facilities in accordance with the terms of this Agreement and without adverse distinction between the Owners.  The Operator shall supervise and perform, or cause to be supervised and performed, the physical operation and maintenance of the Common Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction


 


between the Owners.  Subject to Section 5.04 , the Operator may utilize its employees and supervisory personnel, and any independent technical advisors, consultants, contractors and agents which it may select, as may be required to perform the Operator’s obligations under this Section 6.04 .  The obligations performed by the Operator pursuant to this Section 6.04 are included in the services for which the Operator is compensated by the Monthly Common Facilities Charge, and the Operator shall not separately invoice the Owners and the Owners shall not be liable for any of the costs or expenses incurred by or on behalf of the Operator pursuant to this Section 6.04 .
 

ARTICLE VII
CAPITAL UPGRADES PROPOSED BY AN OWNER

7.01     Capital Upgrades .

(a)        At any time during the Term, an Owner (“ Electing Owner ”) may elect to make a capital upgrade or improvement to the Transmission Facilities, provided that in no event shall an Electing Owner be entitled to make a capital upgrade or improvement to the Transmission Facilities that reasonably would be expected to have a material adverse effect on the other Owner’s ownership, use or enjoyment of its Ownership Interest of the Transmission Facilities (and associated Capacity Share) as contemplated in this Agreement.  An Electing Owner shall provide the other Owner no less than sixty (60) days’ prior written notice of its election, together with reasonable details about the proposed upgrade or improvement (each, a “ Capital Upgrade Notice ”).  Within sixty (60) days of receipt of the Capital Upgrade Notice, the other Owner may notify the Electing Owner in writing that it elects to participate in the capital upgrade or improvement to the Transmission Facilities.

(i)         If the other Owner delivers notice to the Electing Owner within the sixty (60) day period that it elects to participate in the capital upgrade or improvement to the Transmission Facilities, then the Owners shall meet and agree on: (A) the final scope of the capital upgrade or improvement; (B) the allocation of increased transmission capacity, if any, associated with such capital upgrade and improvement between the Owners, including any change in the Owners’ Capacity Shares; (C) any change in each Owner’s Ownership Interest; (D) each Owner’s share of the costs of such upgrade or improvement; (E) any change in the Monthly Transmission Facilities O&M Charge; and (F) such other matters as the Owners may agree upon, all of which shall be memorialized in an amendment to this Agreement executed by the Owners, including any amendments to the Exhibits hereto (the “ Amendment ”); provided , however , that any failure of the Owners to agree on any of the matters specified in subparts (A) through (F) above shall be resolved pursuant to the provisions of Article XVIII .  Notwithstanding any provisions to the contrary in this Agreement, an Owner shall not be prohibited from making a capital upgrade or improvement to the Transmission Facilities pursuant to this Section 7.01(a) because the Owners fail to agree on any of the matters specified in subparts (A) through (F) of the immediately preceding sentence, and any such disagreement shall be resolved pursuant to Article XVIII .

(ii)        If the other Owner elects not to participate in the capital upgrade or improvement to the Transmission Facilities (or fails to deliver a notice to the Electing Owner within the sixty (60) day period), then the Electing Owner may proceed with the capital upgrade

 


 


or improvement, provided that the Electing Owner shall coordinate with the Operator on the final scope of the capital upgrade or improvement.
 

(b)        The Operator shall design, permit, construct, install and commission any upgrades or improvements to the Transmission Facilities provided for in Section 7.01(a)(i) in accordance with the Amendment or, if applicable, any resolution pursuant to Article XVIII , and otherwise in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations.  The Owners shall be responsible, based on the Amendment or, if applicable, any resolution pursuant to Article XVIII , for all of the Costs incurred by or on behalf of the Operator in connection with such capital upgrade or improvement to the Transmission Facilities.  Effective as of the date of successful commissioning of such capital upgrade or improvement, written notice of which the Operator shall provide to the Owners, the Owners’ Ownership Interests and Capacity Shares shall be adjusted, if at all, in accordance with the Amendment or, if applicable, any resolution pursuant to Article XVIII , and the Owners shall memorialize any revised Ownership Interests in a revised Exhibit C which shall be effective as of the date of successful commissioning of such upgrade or improvement.  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades or improvements provided for in this Section 7.01(b) shall be Transmission Facilities for purposes of this Agreement.

(c)        The Operator shall design, permit, construct, install and commission any upgrades or improvements to the Transmission Facilities provided for in Section 7.01(a)(ii) in accordance with the final scope of the capital upgrade or improvement established by the Electing Owner pursuant to Section 7.01(a)(ii) , and otherwise in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations.  The Electing Owner shall be responsible for all of the Costs incurred by or on behalf of the Operator in connection with such capital upgrade or improvement to the Transmission Facilities and title to such capital upgrades or improvement shall vest solely with the Electing Owner.  Effective as of the date of successful commissioning of such capital upgrade or improvement, written notice of which the Operator shall provide to the Owners, (i) the Owners’ Ownership Interests shall be adjusted, if at all, in accordance with Exhibit C , (ii) the Owners shall memorialize any revised Ownership Interests in a revised Exhibit C which shall be effective as of the date of successful commissioning of such upgrade or improvement, and (iii) the Operator shall operate and maintain such capital upgrade or improvement in accordance with Section 6.01(a) .  In addition, the Owners shall meet and agree on: (A) the allocation of increased transmission capacity, if any, associated with such capital upgrade and improvement between the Owners, including any change in the Owners’ Capacity Shares; (B) any change in the Monthly Transmission Facilities O&M Charge; and (C) such other matters as the Owners may agree upon, all of which shall be memorialized in an amendment to this Agreement executed by the Owners, including any amendments to the Exhibits hereto; provided , however , that any failure of the Owners to agree on any of the matters specified in subparts (A) through (C) above shall be resolved pursuant to the provisions of Article XVIII .  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades or improvements provided for in this Section 7.01(c) shall not be Transmission Facilities for purposes of this Agreement.

 


 


 

 

 

 

(d)       Notwithstanding anything to the contrary contained herein, the provisions of this Section 7.01 shall not apply to capital upgrades or improvements made by the Operator pursuant to Section 6.01(c) which are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice or required by applicable Governmental Requirements or Governmental Authorizations, which shall be governed by the provisions of Section 6.01 .

(e)        Each Owner shall provide the Operator prompt written notice of any request pursuant to its OATT from a third-party customer to provide additional transmission capacity that will require one or more capital upgrades or improvements to the Transmission Facilities.  If capital upgrades or improvements are required in accordance with such Owner’s OATT, then such capital upgrades and improvements shall be made by the Operator in accordance with the provisions of Section 7.01(a) and Section 7.01(b) .

(f)        The Owners agree that the Tap Line Upgrades to the Transmission Facilities shall be permitted, constructed, installed and commissioned by the Operator, provided that the Operator shall delegate such responsibilities to PacifiCorp pursuant to Section 5.04 .  The Operator shall use Commercially Reasonable Efforts to construct, install and commission the Tap Line Upgrades during the outage for the Jim Bridger power plant currently scheduled for April, 2011.  The Owners shall each be responsible for fifty percent (50%) of all Costs incurred by or on behalf of the Operator in connection with the permitting, construction, installation and commissioning of the Tap Line Upgrades pursuant to this Section 7.01(f) .  The Owners agree that the Tap Line Upgrades shall not result in a change to the Owners’ Ownership Interests or associated Capacity Shares or the Monthly Transmission Facilities O&M Charge.  For purposes of this Section 7.01(f) , “ Tap Line Upgrades ” means the redesign and upgrade of the interconnection structures connecting the existing 500 kV Midpoint-Summer Lake Line to the Hemingway Substation, including the two tangent and two dead end monopole structures, so as to facilitate hot work off the structures as a means to minimize outages.

ARTICLE VIII
PHYSICAL DAMAGE TO TRANSMISSION FACILITIES; CONDEMNATION

8.01     Rebuilding Damaged Facilities .   If any of the Transmission Facilities are materially damaged or destroyed (the “ Damaged Facilities ”), then within thirty (30) days of the date the damage or destruction occurred, the Operator shall deliver to the Owners a written notice (the “ Damage Notice ”) of the Operator’s good faith reasonable estimate of the cost to repair or rebuild the Damaged Facilities.  If the Damage Notice indicates that the total project cost to repair or rebuild the Damaged Facilities is estimated to be Five Million Dollars ($5,000,000) or more, inclusive of insurance proceeds, then the Owners will determine whether the Damaged Facilities will be repaired or rebuilt within thirty (30) days of the date of the Damage Notice.  If the Damage Notice indicates that the total project cost to repair or rebuild the Damaged Facilities is estimated to be less than Five Million Dollars ($5,000,000), inclusive of insurance proceeds, then the Operator will determine whether the Damaged Facilities will be repaired or rebuilt and provide notice thereof to the Owners within thirty (30) days of the date of the Damage Notice.  If the Owners or the Operator determines pursuant to this Section 8.01 to repair or rebuild the Damaged Facilities, then the Owners will, upon receipt of any insurance proceeds paid in connection with such Damaged Facilities, apply such proceeds (up to its pro

 


 


 rata share based on its Ownership Interest) to the repair and reconstruction of the Damaged Facilities which will be carried out by the Operator, provided that the Operator shall pay pro rata to the Owners (in accordance with their Ownership Interests) any insurance proceeds received from any property insurance obtained by the Operator pursuant to Section 5.07(b) .  The Operator will be responsible for obtaining any necessary Governmental Authorizations to repair or rebuild the Damaged Facilities and determining the manner in which to repair and reconstruct the Damaged Facilities (including the equipment to be used).  Each Owner shall reasonably cooperate with and support the Operator in obtaining any such Governmental Authorizations in accordance with Section 5.05(c) .  The Operator will cause such repairs or reconstruction to be made so that the Damaged Facilities will be repaired and restored to substantially the same general condition, character and use as existed prior to such damage or destruction.  If the cost of such repairs or reconstruction exceeds the insurance proceeds required to be applied to the repair or reconstruction pursuant to this Section 8.01 , then the Owners shall pay, in accordance with their applicable Ownership Interests, the shortfall amount.
 

8.02     Decision not to Rebuild .

  If the Owners determine pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities (or cannot reach agreement to repair or rebuild the Damaged Facilities) or the Operator determines pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities, then, in each case, (a) each Owner shall (i) be entitled to retain any insurance proceeds received pursuant to insurance maintained by it with respect to the Damaged Facilities, (ii) receive its share of any revenues from the salvage or sale of the Damaged Facilities and (iii) pay its pro rata share (based on its Ownership Interest) of any costs of removal of parts and equipment from the Damaged Facilities, (b) the Operator shall pay pro rata to the Owners (in accordance with their Ownership Interests) any insurance proceeds received from any property insurance obtained by the Operator pursuant to Section 5.07(b) , and (c) subject to Section 8.03 , this Agreement shall terminate pursuant to Section 2.04(a) .

8.03     Purchase of Ownership Interest .

  If pursuant to Section 8.01 the Owners determine not to repair or rebuild the Damaged Facilities (or cannot reach agreement to repair or rebuild the Damaged Facilities) or the Operator determines that the Damaged Facilities should not be repaired and reconstructed and, in each case, one Owner desires to repair or rebuild the Damaged Facilities (the “ Continuing Owner ”), then the Continuing Owner shall have the option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner.  In order to exercise its option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner, the Continuing Owner must give written notice thereof to the other Owner within thirty (30) days of the Owners’ or Operator’s determination pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities.  The Owners shall enter into such documentation as the Continuing Owner shall reasonably request to document the purchase and sale of all of the Ownership Interest (and Capacity Share) of the other Owner in the Transmission Facilities, provided that the purchase price of the Ownership Interest (and Capacity Share) of the other Owner shall be equal to the other Owner’s pro rata share (based on its Ownership Interest) of: (a) the salvage value of the Damaged Facilities, and (b) the depreciated cost of the Transmission Facilities which are not part of the Damaged Facilities.

8.04     Cooperation .   If the Continuing Owner seeks to repair or rebuild the Transmission Facilities purchased from the other Owner pursuant to Section 8.03 , then, at the Continuing Owner's request and expense, the other Owner and the Operator (if the Continuing Owner is not

 


 


the Operator) will, for a reasonable period of time, cooperate with and use Commercially Reasonable Efforts to assist the Continuing Owner in the repair or rebuilding of the Damaged Facilities.  This Section 8.04 shall survive the expiration or termination of this Agreement.
 

8.05     Condemnation .   If there occurs a loss of title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities, as the result of the exercise of the right of condemnation or eminent domain by or on behalf of any Governmental Authority, then the Operator will promptly give notice thereof to the Owners, which notice shall generally describe the nature and extent of such condemnation or eminent domain proceedings (including any negotiations in connection with such proceedings).  The Operator shall, in consultation with the Owners, use Commercially Reasonable Efforts to resist the loss of title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities through condemnation or eminent domain.  If, as a result of condemnation or eminent domain, the Owners shall lose title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities, the Owners shall determine, by mutual agreement, whether:

(a)        the Transmission Facilities are no longer useful for the transmission of electric power and should be retired and decommissioned, in which case the provisions of Article IX shall control;

(b)        the Transmission Facilities should be replaced or modified, in which case the Owners will, upon receipt of any awards paid in connection with such condemnation or eminent domain, apply such awards to the replacement or modification of the Transmission Facilities which will be carried out by the Operator.  The Operator will, consistent with the mutual agreement of the Owners, determine the manner in which to replace or modify the Transmission Facilities (including the equipment to be used), and will cause such replacement and modifications to be made so that the Transmission Facilities are replaced or modified in accordance with the mutual agreement of the Owners.  If the cost of replacement or modification of the Transmission Facilities exceeds the awards received by the Owners in connection with such condemnation or eminent domain, then the Owners shall pay their pro rata shares (based on their Ownership Interests) of the shortfall amount; or

(c)        if the Owners do not reach mutual agreement on one of the actions provided for in paragraphs (a) and (b) above, or on another course of action, within sixty (60) days after the date of the notice provided by the Operator to the Owners pursuant to the first sentence of this Section 8.05 , then each Owner shall receive its pro rata share (based on its Ownership Interest) of all awards received by the Owners (or their Affiliates) in connection with any such condemnation or eminent domain (less the actual cost, fees and expenses incurred by the Operator in collection thereof).

ARTICLE IX
RETIREMENT AND DECOMMISSIONING

9.01     Decision to Retire Transmission Facilities .   The Owners will determine in accordance with the terms of this Article IX when the Transmission Facilities are no longer useful for the transmission of electric power and should be retired and decommissioned.  If the

 


 


 

 

 

 

Owners mutually agree to retire and decommission the Transmission Facilities, then, subject to Section 9.02 and Section 9.03 , this Agreement shall terminate pursuant to Section 2.04(b) .

9.02     Costs of Decommissioning .   Each of the Owners shall be responsible for paying its pro rata share (based on its Ownership Interest) of the aggregate amount of all costs incurred by or on behalf of the Operator to retire permanently the Transmission Facilities from service, including decommissioning, dismantling, demolishing and removal of equipment, facilities and structures, security, maintenance, disposing of debris, abandonment and all other costs incurred by or on behalf of the Operator to retire permanently the Transmission Facilities from service, net of any amounts recovered in connection with the sale of any retired equipment, facilities and structures.

9.03     Purchase of Ownership Interest .   Each Owner shall give written notice to the other Owner when it believes the Transmission Facilities should be retired and decommissioned (each, a “ Decommissioning Notice ”).  If the other Owner desires to continue the operation of the Transmission Facilities (the “ Remaining Owner ”), then the Remaining Owner shall have the option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner in the Transmission Facilities.  In order to exercise its option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner in the Transmission Facilities, the Remaining Owner must give written notice thereof to the other Owner within ninety (90) days of receipt of the other Owner’s Decommissioning Notice.  The Owners shall enter into such documentation as the Remaining Owner shall reasonably request to document the purchase and sale of the Ownership Interest (and Capacity Share) of the other Owner, provided that the purchase price of the Ownership Interest (and Capacity Share) of the other Owner shall be equal to the other Owner’s pro rata share (based on its Ownership Interest) of the depreciated cost of the applicable Transmission Facilities.

9.04     Cooperation .   If the Remaining Owner seeks to purchase and continue the operation of the Transmission Facilities, then, at the Remaining Owner’s request and expense, the other Owner and the Operator (if the Remaining Owner is not the Operator) will, for a reasonable period of time, cooperate with and use Commercially Reasonable Efforts to assist the Remaining Owner in the continued operation of the Transmission Facilities.  This Section 9.04 shall survive the expiration or termination of this Agreement.

ARTICLE X
INTERCONNECTION

10.01   Grant of Interconnection .  Subject to the terms and conditions in this Article X , the Idaho Power Transmission System and PacifiCorp Transmission System shall be interconnected at the Point of Interconnection.

10.02   Interconnection Operating Procedures .  Prior to the energization of the Interconnection, the Owners shall develop written operating procedures, in accordance with WECC reliability requirements, governing operation of the Interconnection by the Operator.  The Owners may, by mutual written agreement, amend and supplement the operating procedures, in accordance with WECC reliability requirements, governing operation of the Interconnection by the Operator.

 


 


 

 

 

 

10.03   Interconnection Energization .  The Owners shall energize, or cause to be energized, the Interconnection upon successful completion of acceptance testing of the Interconnection by the Operator, including installation of the Metering Equipment specified in Section 10.04 , and completion of the operating procedures specified in Section 10.02 .  The Parties recognize the need for the approval of an expedited WECC ratings review for Path 14 (Idaho to Northwest ) and Path 75 (Midpoint-Summer Lake) both of which are affected by the Hemingway Substation Interconnection.  Idaho Power agrees to intertie the planned Hemingway Substation 230 kV transmission line to the Idaho Power 138 kV Treasure Valley system only after the WECC ratings process is complete  The non-simultaneous and simultaneous export ratings of the Midpoint-Summer Lake 500 kV line are presently 1500 MW and 1187 MW respectively.  Idaho Power acknowledges the desire to maintain the non-simultaneous export rating of the Midpoint-Summer Lake Line and will mitigate any adverse impacts that the Hemingway Substation causes to the non-simultaneous export rating of the Midpoint-Summer Lake Line which is identified in the WECC rating process in connection with the initial energization of the Hemingway Substation.  Such mitigation shall include changes to operating procedures if necessary to achieve this desired rating.  The simultaneous export rating of the Midpoint-Summer Lake Line is an allocation of the capability of multiple lines in Path 14, and Idaho Power will support PacifiCorp if a third party raises a challenge to the simultaneous rating of the Midpoint-Summer Lake Line.

10.04   Metering .   The Operator shall operate and maintain the Metering Equipment and meters (which are part of the Common Facilities) in accordance with Good Utility Practice and applicable WECC operating guides, protocols and metering guidelines.

(a)        The Operator shall test the Metering Equipment and meters (which are part of the Common Facilities) no less frequently than once every two (2) years.  The Owners shall be given reasonable advance notice of the Operator’s testing of the Metering Equipment and meters (which are part of the Common Facilities) and shall have the opportunity to observe such testing, and the Operator shall provide the Owners a copy of meter results (including any early results to the extent the Operator has access to the results) promptly upon the results being available to the Operator.  Each Owner may request additional tests of the Metering Equipment and meters (which are part of the Common Facilities) beyond those required by the first sentence of this Section 10.04(a) , provided such additional tests shall be conducted by the Operator at the expense of the requesting Owner, unless such additional test reveals that the Metering Equipment and meters (which are part of the Common Facilities) are found to register outside the accepted accuracy range for watts and vars of full load equals +/- 0.2%, light load equals +/-0.2%, and power factor equals +/-0.3%, in which event the expense of the additional testing will borne by the Owners equally.

(b)        If, as a result of any test, the Metering Equipment and meters (which are part of the Common Facilities) are found to be registering outside the applicable accuracy standard in effect at the time of the test, such Metering Equipment and meters (which are part of the Common Facilities) shall be restored to the accuracy standard or an accurate meter substituted by the Operator.

 


 


 

 

 

 

(c)        The Operator shall provide each Owner with a real time remote signal from the Metering Equipment and meters (which are part of the Common Facilities) pursuant to established inter-control area communications protocols.

(d)       The Owners acknowledge that (i) the current meter point of Path 14 (Idaho to Northwest) and (ii) Path 75 (Summer Lake) is expected to shift from the Midpoint Substation to the Hemingway Substation with no reduction to existing ratings for either path.  Once the meter point is shifted to the Hemingway Substation for both paths, the Owners will agree on appropriate compensation for the line losses transferred to the Idaho Power balancing area.

10.05   Service Conditions .

(a)        Operation and Maintenance; Avoidance of Burdens and Control of System Disturbances .  Each Owner shall operate and maintain its Transmission System in a manner consistent with Good Utility Practice and the provisions of this Section 10.05 .  In addition, each Owner shall operate and maintain its respective Transmission System so as to minimize, in accordance with Good Utility Practice, the likelihood of a disturbance originated in either Transmission System, which might cause impairment to the service of the other Owner or of any transmission system interconnected with the Transmission System of the other Owner.  Either Owner may install and operate on its Transmission System such relays, disconnecting devices, and other equipment as it may deem appropriate for the protection of its Transmission System, provided that any such relays, disconnecting devices and other equipment on the Transmission Facilities shall be handled pursuant to Article VII .

(b)        Additional Services .  This Article X is applicable only to the physical interconnection of the Owners’ Transmission Systems at the Point of Interconnection and does not obligate either Owner to receive or provide any service.  Other services provided by one Owner to the other Owner shall be governed by such other agreements as the Owners may enter into from time to time.  Neither Owner shall be obligated to deliver reactive power for the benefit of the other Owner, and neither Owner shall be obligated to receive reactive power when to do so might introduce objectionable operating conditions on its Transmission System.

(c)        Interruption of Service .  The Owners shall use Commercially Reasonable Efforts, consistent with Good Utility Practice and any applicable Reliability Standards and Governmental Requirements, to provide a physical interconnection to be operated in continuous synchronization at the Point of Interconnection, provided that an Owner (“ Interrupting Owner ”) may temporarily interrupt or isolate the Interconnection under the following circumstances:  (i) by operation of automatic equipment installed for power system protection; (ii) after consultation with the other Owner, other than in an emergency situation where consultation is not practicable, when an Owner deems it necessary for installation, maintenance, inspection, repairs or replacements of equipment on its Transmission System; (iii) at any time that, in the sole judgment of the Interrupting Owner, such action is necessary to preserve the integrity of, or to prevent or limit any instability on, or to avoid or mitigate an Unauthorized Use on its Transmission System; (iv) where necessary to comply with documented directives from a Governmental Authority; (v) as a result of one or more events of Force Majeure; or (vi) where necessary to prevent (A) death or serious injury to any person, (B) material damage or harm to any property or (C) any material adverse effect to the security of, or damage to its Transmission

 


 


System or the electric systems of others to which its Transmission System is directly connected, including the other Owner’s Transmission System.  An Interrupting Owner shall use Commercially Reasonable Efforts to provide the other Owner (1) with reasonable advance notice of any planned interruption of the Interconnection and (2) with notice of any other interruption of the Interconnection as soon as practicable after the interruption.  If synchronous operation is interrupted, the Owners shall cooperate so as to remove the cause of such interruption as soon as commercially practicable consistent with Good Utility Practice, applicable Reliability Standards and applicable Governmental Requirements.
 

(d)       Physical and Cyber Security .  The Operator shall cooperate with each Owner in complying with any physical and cyber security or other security requirement established by Governmental Requirement, including Reliability Standards, applicable to the Owner and the Transmission Facilities, written notice of which the Owner provides to the Operator.

10.06   Survival of Interconnection Provision .  The provisions of this Article X , together with Articles XI XII , XIV , XV , XVIII , XIX and XX (to the extent applicable to the surviving provisions of this Article X ), shall continue in full force and effect notwithstanding the expiration or termination of this Agreement, provided that in the event of expiration or termination of this Agreement, the Parties shall amend this Agreement to reflect such changes to this Agreement as shall be necessary and mutually acceptable to the Parties to conform this Agreement to the surviving provisions of this Agreement in accordance with this Section 10.06 .

ARTICLE XI
FORCE MAJEURE

11.01   Force Majeure Defined .

  For purposes of this Agreement, “ Force Majeure ” means an event or circumstance beyond the reasonable control of and without the fault or negligence of the Owner or Operator claiming Force Majeure (“ Affected Party ”), which, despite the exercise of reasonable diligence, cannot be or be caused to be prevented, avoided or removed by such Affected Party including, to the extent satisfying the above requirements, acts of God; earthquake; abnormal weather condition; hurricane; flood; lightning; high winds; drought; peril of the sea; explosion; fire; war (declared or undeclared); military action; sabotage; riot; insurrection; civil unrest or disturbance; acts of terrorism; economic sanction or embargo; civil strike, work stoppage, slow-down, or lock-out that are of an industry or sector-wide nature and that are not directed solely or specifically at the Affected Party; the binding order of any Governmental Authority, provided that the Affected Party has in good faith reasonably contested such order; the failure to act on the part of any Governmental Authority, provided that such action has been timely requested and diligently pursued; unavailability of equipment, supplies or products, but only to the extent caused by Force Majeure; failure of equipment, provided that the equipment has been operated and maintained in accordance with Good Utility Practice; and transportation delays or accidents, but only to the extent otherwise caused by Force Majeure; provided , however , that neither insufficiency of funds, financial inability to perform nor changes in market conditions shall constitute Force Majeure.

 

 


 


 

 

 

 

11.02   Effect of Force Majeure .

(a)        If an Affected Party is rendered wholly or partly unable to perform its obligations under this Agreement or its performance is delayed because of Force Majeure, such Affected Party shall be excused from, and shall not be liable for, whatever performance it is unable to perform or delayed in performing due to the Force Majeure to the extent so affected, provided that:

(i)         The Affected Party, as soon as reasonably practical after the commencement of the Force Majeure, gives the other Owner(s) and the Operator prompt written notice thereof, including a description of the particulars of the Force Majeure;

(ii)        The suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure; and

(iii)       The Affected Party uses Commercially Reasonable Efforts to overcome and remedy its inability to perform as soon as reasonably practical after the commencement of the Force Majeure.

(b)        Notwithstanding anything in this Article XI to the contrary, no payment obligation arising under this Agreement prior to the date of an event of Force Majeure shall be excused by such event of Force Majeure.

(c)        Whenever an Affected Party is required to commence or complete any action within a specified period and is prevented or delayed by Force Majeure from commencing or completing such action within the specified period, such period shall be extended by an amount equal to the duration of such event of Force Majeure occurring or continuing during such period.

ARTICLE XII
EVENTS OF DEFAULT

12.01   Event of Default .

  Each of the following events shall constitute an event of default (“ Event of Default ”) by the defaulting Owner (a “ Defaulting Owner ”):

(a)        the failure to make, when due, any payment required pursuant to this Agreement, if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner;

(b)        any representation or warranty made by such Defaulting Owner herein is false or misleading in any material respect when made, unless (i) the fact, circumstance or condition that is the subject of such representation or warranty is made true within thirty (30) days after notice thereof from the Non-Defaulting Owner, provided that if the fact, circumstance or condition that is the subject of such representation or warranty reasonably cannot be corrected within such thirty (30) day period, then the Defaulting Owner shall have an additional period of time (not to exceed sixty (60) days) in which to correct the fact, circumstance or condition that is the subject of such representation or warranty, and (ii) such cure removes any adverse effect on

 


 


 

 

 

 

 

the Non-Defaulting Owner of such fact, circumstance or condition being otherwise than as first represented, or such fact, circumstance or condition being otherwise than as first represented does not materially adversely affect the Non-Defaulting Owner;

(c)        a transfer, assignment or other disposition of its interest in this Agreement or its Ownership Interest (or Capacity Share) in the Transmission Facilities, in each case, in violation of Article XIX ;

(d)       the failure to perform or breach of its covenants and obligations in Section 4.06 ;

(e)        the failure to be a Qualified Owner, if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner;

(f)        the failure to perform or breach of any material covenant or obligation set forth in this Agreement (other than provided for in Section 12.01(a) , (b) , (c) , (d) or (e) ), if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner, provided that if such failure or breach cannot reasonably be cured within thirty (30) days, then the Defaulting Owner shall have an additional period of time (not to exceed ninety (90) days) in which to cure such failure or breach so long as the Defaulting Owner commences good faith activities to cure the failure or breach during the initial 30-day cure period and continues to utilize its Commercially Reasonable Efforts to effect a cure; or

(g)        the Defaulting Party becomes Bankrupt.

12.02   Cure by Non-Defaulting Owner .

  If a Defaulting Owner fails to cure an Event of Default, then the Non-Defaulting Owner may, in its sole discretion, attempt to cure the Event of Default, provided that the Defaulting Owner shall reimburse the Non-Defaulting Owner for all costs and expenses incurred by or on behalf of the Non-Defaulting Party pursuant to this Section 12.02 .

12.03   Remedies .

(a)        If an Event of Default occurs and is continuing, then the Non-Defaulting Owner shall be entitled to exercise any of it remedies at law or in equity, including recovery from the Defaulting Owner of any damages suffered as a result of the Event of Default, subject to Section 14.08 .  The Non-Defaulting Party shall use Commercially Reasonable Efforts to mitigate any damages suffered as a result of the Event of Default.

 

 

(b)        The Owners acknowledge that the obligations and covenants performed by each Owner hereunder are unique and that the Non-Defaulting Owner will be irreparably injured should such obligations and covenants not be consummated in accordance with the terms and conditions of this Agreement.  Consequently, the Non-Defaulting Owner will not have an adequate remedy at law if the other Owner shall fail to perform its obligations and covenants hereunder.  The Non-Defaulting Owner shall have the right, in addition to any other remedy available under this Agreement, to specific performance of the Defaulting Owner's obligations

 

 


 


and covenants hereunder, and the Owners agree not to take a position in any proceeding arising out of this Agreement to the effect that the Non-Defaulting Party has an adequate remedy at law.
 

ARTICLE XIII
REPRESENTATIONS AND WARRANTIES

13.01   Representations and Warranties of PacifiCorp .   PacifiCorp represents and warrants to Idaho Power as of the Execution Date as follows:

 

(a)        It is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation.

(b)        It has all requisite corporate power necessary to own its assets and carry on its business as now being conducted or as proposed to be conducted under this Agreement.

(c)        It has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement, and the execution and delivery of this Agreement and the performance by it of this Agreement have been duly authorized by all necessary corporate action on its part.

(d)       The execution and delivery of this Agreement and the performance by it of this Agreement do not: (i) violate its organizational documents; (ii) violate any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default of any material agreement to which it is a party.

(e)        This Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and by principles of equity regardless of whether such principles are considered in a proceeding at law or in equity.

(f)        Except as disclosed in Schedule 13.01(f) , all material Governmental Authorizations required by Governmental Requirements to have been obtained by it prior to the date hereof in connection with the due execution and delivery of, and performance by it of its obligations under, this Agreement, have been duly obtained or made and are in full force and effect.

(g)        It is a Qualified Owner.

13.02   Representations and Warranties of Idaho Power .

  Idaho Power represents and warrants to PacifiCorp as of the Execution Date as follows:

(a)        It is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation.

(b)        It has all requisite corporate power necessary to own its assets and carry on its business as now being conducted or as proposed to be conducted under this Agreement.

 


 


 

 

 

 

(c)        It has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement, and the execution and delivery of this Agreement and the performance by it of this Agreement have been duly authorized by all necessary corporate action on its part.

(d)       The execution and delivery of this Agreement and the performance by it of this Agreement do not: (i) violate its organizational documents; (ii) violate any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default of any material agreement to which it is a party.

(e)        This Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and by principles of equity regardless of whether such principles are considered in a proceeding at law or in equity.

(f)        Except as disclosed in Schedule 13.02(f), all material Governmental Authorizations required by Governmental Requirements to have been obtained by it prior to the date hereof in connection with the due execution and delivery of, and performance by it of its obligations under, this Agreement, have been duly obtained or made and are in full force and effect.

(g)        It is a Qualified Owner.

ARTICLE XIV
INDEMNIFICATION

14.01   Indemnities .

(a)        Subject to the provisions of Section 14.03 and Section 14.08 , each Owner (the “ Indemnifying Party ”) shall indemnify, defend and hold harmless the other Owner (the “ Indemnified Party ”) and its Representatives, from and against any and all suits, actions, liabilities, legal proceedings, claims, demands, losses, costs and expenses of whatsoever kind or character, including reasonable attorneys’ fees and expenses (collectively, “ Claims ”) of third parties, for injury or death of persons or physical loss of or damage to property of Persons (other than the Indemnified Party and its Representatives) arising from the Indemnifying Party’s (including its Representatives’): (i) gross negligence or willful misconduct in connection with the performance of this Agreement; or (ii) failure to perform a material obligation under this Agreement.

(b)        In addition to and not in limitation of the indemnity provided in Section 14.01(a) , but subject to the provisions of Section 14.03 and Section 14.08 , each Owner, as Indemnifying Party, shall severally and not jointly, in accordance with its Ownership Interest, indemnify, defend and hold harmless the Operator, as Indemnified Party, and its Representatives from and against any and all third-party Claims for injury or death of persons or physical loss of or damage to property of Persons (other than the Indemnified Party and its Representatives), or fines or penalties levied or imposed by Governmental Authorities, in each case, arising under or in connection with this Agreement, including in connection with the performance by the

 


 


Operator of its obligations under this Agreement, except for such Claims or fines arising from the Operator’s or its Representatives’: (i) gross negligence or willful misconduct in connection with the performance of this Agreement or (ii) failure to perform a material obligation under this Agreement.
 

(c)        Subject to the provisions of Section 14.03 and Section 14.08 , the Operator, as Indemnifying Party, shall indemnify, defend and hold harmless each Owner, as Indemnified Party, and its Representatives from and against any and all Claims for injury or death of persons or physical loss of or damage to property of Persons (including the Indemnified Party and its Representatives), or fines or penalties levied or imposed by Governmental Authorities or Losses incurred by the Indemnified Party and its Representatives, arising from the Operator’s and its Representatives’ (i) gross negligence or willful misconduct in connection with the performance of this Agreement or (ii) failure to perform a material obligation under this Agreement; provided , however , in no event shall the Operator be obligated to indemnify, defend or hold harmless an Owner and its Representatives from and against any such Claims or fines or Losses to the extent arising from such Owner’s or its Representatives’: (i) gross negligence or willful misconduct in connection with the performance of this Agreement; or (ii) failure to perform any material obligation under this Agreement.

14.02   Notice and Participation .

(a)        If an Indemnified Party intends to seek indemnification under this Article XIV with respect to any Claims, the Indemnified Party shall give the Indemnifying Party prompt written notice of such Claims upon the receipt of actual knowledge or information by the Indemnified Party of any possible Claims or of the commencement of such Claims.  The Indemnifying Party shall have no liability under this Article XIV for any Claim for which such notice is not provided, but only to the extent that the failure to give such notice materially impairs the ability of the Indemnifying Party to respond to or to defend the Claim.

(b)        The Indemnifying Party shall have the right to assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided , however , that if the defendants in any such proceeding include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are in conflict with those available to the Indemnifying Party and that such conflict materially prejudices the ability of the counsel selected by the Indemnifying Party to represent both Parties, the Indemnified Party shall have the right to select separate counsel reasonably satisfactory to the Indemnifying Party, at the Indemnifying Party’s expense, to assert such legal defenses and to otherwise participate in the defense of such Claim on behalf of such Indemnified Party, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such separate counsel.

(c)        Should any Indemnified Party be entitled to indemnification under this Article XIV as a result of a Claim by a third party, and should the Indemnifying Party fail to assume the defense of such Claim within a reasonable period of time after the Indemnified Party has provided the Indemnifying Party written notice of such Claim, the Indemnified Party may, at

 


 


 

 

 

 

the expense of the Indemnifying Party, contest or, with or without the prior consent of the Indemnifying Party, settle such Claim.

(d)       Except to the extent expressly provided herein, no Indemnified Party shall settle any Claim with respect to which it has sought or is entitled to seek indemnification pursuant to this Article XIV unless (i) it has obtained the prior written consent of the Indemnifying Party, or (ii) the Indemnifying Party has failed to assume the defense of such Claim within a reasonable period of time after the Indemnified Party has provided the Indemnifying Party written notice of such Claim.

(e)        Except to the extent expressly provided otherwise herein, no Indemnifying Party shall settle any Claim with respect to which it may be liable to provide indemnification pursuant to this Section without the prior written consent of the Indemnified Party; provided , however , that if the Indemnifying Party has reached a bona fide settlement agreement with the plaintiff(s) in any such proceeding, which settlement includes a full release of the Indemnified Party for any and all liability with respect to such Claim, and the Indemnified Party does not consent to such settlement agreement, then the dollar amount specified in the settlement agreement, plus the Indemnified Party’s reasonable legal fees and other costs related to the defense of the Claim paid or incurred prior to the date of such settlement agreement, shall act as an absolute maximum limit on the indemnification obligation of the Indemnifying Party with respect to the Claim, or portion thereof, that is the subject of such settlement agreement.

14.03   Net Amount .

  Subject to the limitation in Section 14.02(e), if applicable, in the event that an Indemnifying Party is obligated to indemnify and hold any Indemnified Party harmless under this Article XIV , the amount owing to the Indemnified Party shall be the amount of such Indemnified Party’s actual Claims, net of any insurance or other recovery actually received by the Indemnified Party.

14.04   No Release of Insurers .

  The provisions of this Article XIV shall not be deemed or construed to release any insurer from its obligation to pay any insurance proceeds in accordance with the terms and conditions of valid and collectible insurance policies.

14.05   Mitigation .

  Each Indemnified Party entitled to indemnification hereunder shall take use Commercially Reasonable Efforts to mitigate all Claims after becoming aware of any event which could reasonably be expected to give rise to any Claims that are indemnifiable or recoverable hereunder or in connection herewith.

14.06   Assertion of Claims .

  No Claim of any kind shall be asserted against any Owner or the Operator, whether arising out of contract, tort (including negligence), strict liability, or any other cause of or form of action, unless it is filed in a court of competent jurisdiction, or a demand for arbitration is made, within the applicable statute of limitations period for such Claim.

14.07   Survival of Obligation .   The duty to indemnify under this Article XIV shall continue in full force and effect notwithstanding the expiration or termination of this Agreement, with respect to any Claim arising out of an event or condition which occurred or existed prior to such expiration or termination.

14.08   Limitation on Liability .

 


 


 

 

 

 

(a)        Notwithstanding any provision in this Agreement to the contrary, neither Owner nor the Operator shall be liable under this Agreement in any action at law or in equity, whether based on contract, tort or strict liability or otherwise, for any special, incidental, indirect, exemplary, punitive or consequential damages or losses, including any loss of revenue, income, profits or investment opportunities, loss of the use of equipment, or the cost of temporary equipment or services, provided that any fines or penalties levied or imposed by Governmental Authorities shall not be excluded under this Section 14.08(a) as special, incidental, indirect, exemplary, punitive or consequential damages or losses.

(b)        Notwithstanding any provision in this Agreement to the contrary, neither Owner nor the Operator shall be liable under this Agreement if and to the extent that the Agreement Limiting Liability Among Western Interconnected Systems executed by Idaho Power on August 5, 1985 and by PacifiCorp on August 22, 1973 (the “ WIS Agreement ”) is then in effect between the Parties and expressly limits or precludes such liability.  Nothing in this Agreement shall amend or otherwise affect in any way the terms and conditions of or liability of the Parties under the WIS Agreement.

ARTICLE XV
PROPRIETARY INFORMATION

15.01   Disclosure of Proprietary Information Prohibited .   Any Proprietary Information of a Party (whether in its capacity as Owner or Operator) (the “ Transferor ”) which is disclosed to or otherwise received or obtained by the other Party (whether in its capacity as Owner or Operator) (the “ Transferee ”) incident to this Agreement shall be held in confidence and the Transferee shall not (subject to Sections 15.02 , 15.03 and 15.05 ) publish or otherwise disclose any Proprietary Information of the Transferor to any Person for any reason or purpose whatsoever, or use any Proprietary Information for any purpose other than performance under this Agreement, without the prior written approval of the Transferor, which approval may be granted or withheld by the Transferor in its sole discretion.  Without limiting the generality of the foregoing, each Transferee shall observe at a minimum the same safeguards and precautions with regard to the Transferor’s Proprietary Information which the Transferee observes with respect to its own information of the same or similar kind.

15.02   Disclosure by Representatives .   Each Transferee agrees that it will make available Proprietary Information received from a Transferor to its own representatives only on a need-to-know basis, and that all Persons to whom such Proprietary Information is made available will be made aware of the confidential nature of such Proprietary Information, and will be required to agree to hold such Proprietary Information in confidence in accordance with the terms hereof.

15.03   Permitted Disclosures .   Notwithstanding anything to the contrary contained in this Article XV :

(a)        A Transferee may provide any Proprietary Information to any Governmental Authority having jurisdiction over or asserting a right to obtain such information, provided that (i) such Governmental Authority orders that such Proprietary Information be provided, and (ii) unless prohibited from so doing by applicable Governmental Requirements, the Transferee promptly advises the Transferor of any request for such information by such

 


 


Governmental Authority and cooperates in giving the Transferor an opportunity to present objections, requests for limitation, and/or requests for confidentiality or other restrictions on disclosure or access, to such Governmental Authority.
 

(b)        A Transferee may, to the extent required, disclose Proprietary Information to any Governmental Authority in connection with the application for any Governmental Authorization; provided that unless prohibited from so doing by applicable Governmental Requirements, the Transferee shall provide the Transferor prior written advance notice of such disclosure and the Proprietary Information that is to be disclosed.

(c)        A Transferee may disclose such Proprietary Information regarding the existence and terms of this Agreement as such Transferee deems necessary to enable it to comply with the Securities Exchange Act of 1934, or the rules, regulations and forms of the Securities and Exchange Commission, issued thereunder or the applicable rules of any stock exchange, or as otherwise required by applicable Governmental Requirements.

15.04   Injunctive Relief .   In the event of a breach or threatened breach of the provisions of this Article XV by any Transferee, the Transferor shall be entitled to an injunction restraining the Transferee from such breach or threatened breach.  Nothing contained herein shall be construed as prohibiting the Transferor from pursuing any other remedies available at law or equity for such breach or threatened breach of this Agreement.

15.05   Publicity .   Any public relations matters, including public announcements and press releases or similar publicity, arising out of or in connection with the terms of this Agreement or the transactions contemplated herein, shall be coordinated and agreed to between the Owners prior to said announcement or release.

15.06   Proprietary Information Defined .   For purposes of this Agreement, “ Proprietary Information ” means all information, written or oral, which has been or is disclosed by the Transferor, or by any Representative of the Transferor, or which otherwise becomes known to the Transferee, or to any Representative of such Transferee, or any other party in a confidential relationship with, the Transferee, and which (a) relates to matters such as patents, trade secrets, research and development activities, draft or final contracts or other business arrangements, books and records, budgets, cost estimates, pro forma calculations, engineering work product, environmental compliance, vendor lists, suppliers, manufacturing processes, energy consumption, pricing information, private processes, and other similar information, as they may exist from time to time, (b) relates to the existence or the terms, including pricing and other commercial terms, of this Agreement, or (c) the Transferor expressly designates in writing to be confidential, provided that “ Proprietary Information ” shall exclude information falling into any of the following categories:

(i)  Information that, at the time of disclosure hereunder, is in the public domain, other than information that entered the public domain by breach of this Agreement by Transferee;

 

 

 


 


 

 

 

 

(ii)        Information that, after disclosure hereunder, enters the public domain, other than information that enters the public domain by breach of this Agreement by Transferee;

(iii)       Information, other than that obtained from third-parties, that prior to disclosure hereunder, was already in Transferee’s possession, either without limitation on disclosure to others or subsequently becoming free of such limitation;

(iv)       Information obtained by Transferee from a third-party having an independent right to disclose the information; or

(v)        Information that is available through independent research without use of or access to the Proprietary Information.

15.07   Survival .

  The provisions of this Article XV shall continue in full force and effect during the Term and for a period of two (2) years thereafter, notwithstanding the expiration or termination of this Agreement, with respect to any Proprietary Information obtained by any Transferee prior to such expiration or termination.

ARTICLE XVI
RELIABILITY

16.01   Reliability .   The Operator shall be responsible for compliance with all Reliability Standards applicable to the Owners and the Operator with respect to the Transmission Facilities.

ARTICLE XVII
TAXES

17.01   No Partnership .   Nothing in this Agreement shall be deemed to create or constitute a partnership, joint venture or association among the Owners or any of them, the sole purpose of this Agreement being limited to (a) the allocation of the Ownership Interests (and Capacity Share) in the Transmission Facilities and (b) provision for (i) the orderly and efficient construction, repair, modification, rehabilitation, operation and maintenance of the Owners’ respective separate undivided Ownership Interests in the Transmission Facilities, and (ii) the interconnection of the Owners’ respective Transmission Systems.  Each Owner agrees and covenants that it shall not take or omit to take any action or reporting position with any Governmental Authority contrary to this Section 17.01 .

17.02   761 Election .   The Owners intend that, as tenants in common and owners of undivided Ownership Interests, for United States income tax purposes the Owners shall elect in accordance with the provisions of section 761 of the Internal Revenue Code of 1986, as amended (“ Code ”), and the applicable income tax regulations thereunder (“ Regulations ”), to be excluded from all of the provisions of Subchapter K of the Code upon the first occasion in which such election may be filed under these Regulations and that, if such election is not filed, this Agreement shall constitute an election under Regulations section 1.761-2(b)(2)(ii) to be excluded from all of the provisions of Subchapter K of the Code and the applicable Regulations, beginning

 


 


 

 

 

 

with the first year of the creation of the tenancy in common as contemplated by this Agreement and that no Owner shall object to any such election.

17.03   Responsibility for Taxes .   It is the intent of the Owners that so far as possible, each Owner shall separately report, promptly and timely file returns with respect to, be responsible for and pay all property, income, franchise, business, or other taxes or fees (“ Taxes ”), arising out of its Ownership Interests and the matters contemplated by this Agreement, that such Taxes shall be separately levied and assessed against each Owner severally and that each Owner shall be solely responsible for and shall pay all such Taxes so levied and assessed against it without any responsibility of the other Owner with respect thereto and without the amounts thereof being paid and apportioned between the Owners under this Agreement.  To the extent that Taxes (such as property, payroll, sales and use Taxes) may be levied or assessed against the Transmission Facilities, their operation or the Owners in such a manner as to make impossible the carrying out of the foregoing provisions of this Section 17.03 , the Operator shall report, file returns with respect to and pay such Taxes and each other Owner shall immediately reimburse the Operator for each such Owner’s Ownership Interest percentage of such Taxes.  The Operator shall not have any obligation to contest or to seek refund of such Taxes; provided , however , that the Operator may, by its personnel or counsel of its selection, pursue such administrative or court proceedings as the Operator may determine.  Each Owner shall on request pay to the Operator such Owner’s Ownership Interest percentage of the costs of such proceedings and shall share in any savings resulting from such proceedings in the same proportion.  Each Owner agrees to cooperate with the other Owner with respect to reasonable requests for information or other matters with respect to Taxes.

17.04   Indemnification .   Each Owner (the “ Tax Indemnifying Party ”) shall indemnify and hold harmless the other Owner (the “ Tax Indemnitee Party ”), on an after-tax basis, from and against any Taxes (including any interest or penalties) imposed on such Tax Indemnitee Party or the Transmission Facilities or any part thereof, to the extent such Taxes are the responsibility of the Tax Indemnifying Party pursuant to this Article XVII .

17.05   Determination of Depreciation and Other Matters .   Each Owner shall determine the basis and method it will use for purposes of depreciation and other matters where investment of the Transmission Facilities is relevant.

ARTICLE XVIII
DISPUTES

18.01   Exclusive Procedure .  Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, interpretation, termination, performance or validity of this Agreement (each, a “ Dispute ”) shall be resolved pursuant to the procedures of this Article XVIII .

18.02   Dispute Notices . If a Dispute arises between the Owners or between the Operator and one or both of the Owners, then any Party to such Dispute (each, a “ Disputing Party ”) may provide written notice thereof to the other Disputing Party or Disputing Parties, including a detailed description of the subject matter of the Dispute (the “ Dispute Notice ”).  Any Disputing Party may seek a preliminary injunction or other provisional judicial remedy if such action is necessary to prevent irreparable harm or preserve the status quo, in which case the Disputing

 



Parties nonetheless will continue to pursue resolution of the Dispute pursuant to this Article XVIII .

18.03   Informal Dispute Resolution .

(a)        The Disputing Parties shall make a good faith effort to resolve the Dispute by prompt negotiations between and/or among each Disputing Party’s representative so designated in writing to the other Disputing Party or Disputing Parties (each a “ Manager ”).  If the Managers are not able to resolve the Dispute within thirty (30) days after the date of the Dispute Notice, they shall refer the matter to the designated senior officers of their respective companies (the “ Executive(s) ”), who shall have authority to settle the Dispute.  If the Executives are not able to resolve the Dispute within sixty (60) days after the date of the Dispute Notice, then the Dispute shall be resolved pursuant to Section 18.04 .

(b)        All communications and writings exchanged between and/or among the Disputing Parties in connection with these negotiations shall be confidential and shall not be used or referred to in any subsequent binding adjudicatory process between and/or among the Disputing Parties, either with respect to the current Dispute or any future Dispute between and/or among the Owners and/or the Operator.

18.04  Submission of Dispute to FERC or Approved Courts .  If a Dispute cannot be settled amicably between the Disputing Parties pursuant to Section 18.03 , then any Disputing Party may, in its sole discretion, within one (1) year after the conclusion of the time period for informal dispute resolution specified in Section 18.03 , submit such Dispute (a) to FERC or (b) to the jurisdiction of the state courts situated in Idaho or the United States District Court for the District of Idaho (the “ Approved Courts ”).  Each of PacifiCorp and Idaho Power, in its capacity as an Owner and as the Operator, consents to and accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the Approved Courts and appellate courts from any appeal thereof, and irrevocably waives any objection which it may now or hereafter have to the jurisdiction of the Approved Courts.  Each of PacifiCorp and Idaho Power, in its capacity as an Owner and as the Operator, further irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, proceeding or other action brought pursuant to this Article XVIII in any of the Approved Courts, and irrevocably waives, to the fullest extent permitted by law, and agrees not to plead or claim in any such Approved Court that any suit, proceeding or other action brought therein has been brought in an inconvenient forum.

18.05   Continued Performance .   During the pendency of any Dispute, each Owner and the Operator shall continue to perform all of its respective obligations under this Agreement.

ARTICLE XIX
ASSIGNMENT

19.01   Prohibited Transfers and Assignments .   Neither Idaho Power nor PacifiCorp shall have the right to transfer, assign or otherwise dispose of, in whole or in part, its interest in this Agreement, including its rights, duties and obligations hereunder, nor to transfer, assign or

 


 


 

 

 

 

otherwise dispose of, in whole or in part, its Ownership Interest (or Capacity Share) in the Transmission Facilities, except as permitted under this Article XIX .

19.02   Permitted Assignments and Transfers .   The restrictions set forth in Section 19.01 shall not restrict:

(a)        dispositions and sales by the Operator incident to renewals or replacements of the Transmission Facilities;

(b)        the right of an Owner to subject any of its Ownership Interest (and Capacity Share) to the lien of any mortgage upon all or a portion of its own physical electric utility property or to otherwise collaterally assign its rights and obligations in this Agreement to a lender or other person providing financing to the Owner;

(c)        the right of an Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of such transfer, in the case of Idaho Power, all of its rights and obligations in this Agreement as the Operator) in connection with any sale, merger or other transfer of substantially all of such Owner’s electric transmission facilities as an operating entity; provided , however , that the effectiveness of such assignment shall be conditioned upon the assignee (i) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the assigning Owner as of the assignment date and (ii) qualifying as a Qualified Owner on the assignment date;

(d)       the right of an Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of transfer, in the case of Idaho Power, all of its rights and obligations in this Agreement as the Operator) to an Affiliate of the Owner which owns all or substantially all of the transmission facilities of such Owner; provided , however , that the effectiveness of such assignment shall be conditioned upon the assignee (i) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the assigning Owner as of the assignment date and (ii) qualifying as a Qualified Owner on the assignment date;

(e)        the right of any Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of such transfer, in the case of Idaho Power, all of its rights and obligations in this Agreement as the Operator) to a third party; provided that:  (i) the other Owner, in its sole discretion, approves such transfer and approves the third-party purchaser as having demonstrated that it is financially and technically capable of performing the transferring Owner’s (and, in the case where Idaho Power is the transferring Owner, Operator’s) obligations under this Agreement, and (ii) the other Owner is offered the right of first refusal to purchase such Ownership Interest (and Capacity Share) and all of the transferring Owner’s rights and obligations in this Agreement (including as part of such transfer, in the case where Idaho Power is the transferring Owner, all of its rights and obligations in this Agreement as the Operator), on terms no less favorable than those offered to such proposed third-party purchaser; provided , however , that the effectiveness of such assignment shall be conditioned upon the third-party purchaser (A) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and

 


 


obligations of the assigning Owner (including as part of such transfer, in the case of Idaho Power, all of its rights and obligations in this Agreement as the Operator) as of the assignment date and (B) qualifying as a Qualified Owner on the assignment date; and
 

(f)        the right of an Owner to schedule and provide transmission service (in the amount of its Capacity Share) over the Transmission Facilities under the Owner’s OATT and to schedule and transmit an amount of energy commensurate with the Owner’s Capacity Share over the Transmission Facilities on its own behalf or on behalf of the Owner’s transmission customers; provided , however , that at no time shall an Owner be entitled to post, sell, schedule or transmit transmission service or an amount of energy over the Transmission Facilities greater than its Capacity Share, unless otherwise mutually agreed to in writing in advance by the other Owner.

ARTICLE XX
MISCELLANEOUS

20.01   Notices .

(a)        Any notice, demand, request or other communication required or permitted to be given pursuant to this Agreement shall be in writing and signed by the Owner or Operator giving such notice, demand, request or other communication and shall be hand delivered or sent by certified mail, return receipt requested, or overnight courier to the other Owner and/or Operator at the address set forth below:

If to Idaho Power:

Idaho Power Company

 

1221 West Idaho Street

 

Boise, ID 83702

 

Attn:  Manager, Grid Operations

 

Telephone:  208-388-5669

 

 

With a copy to:

Idaho Power Company

 

1221 West Idaho Street

 

Boise, ID  83702

 

Attn:  Legal Department

 

Telephone:  208-388-2300

 

 

If to PacifiCorp:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:    Director, Transmission Service

 

Telephone:  503-813-6712

 

 

 

 

 

 

 


 


 

 

 

 

 

With a copy to:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:  Legal Department

 

Telephone:  503-813-5854

 

 

If to Operator:

Idaho Power Company

 

1221 West Idaho Street

 

Boise, ID 83702

 

Attn:  Manager, Grid Operations

 

Telephone:  208-388-5669

 

 

With a copy to:

Idaho Power Company

 

1221 West Idaho Street

 

Boise, ID  83702

 

Attn:  Legal Department

 

Telephone:  208-388-2300

 

(b)        Each Owner and the Operator shall have the right to change the place to which any notice, demand, request or other communication shall be sent or delivered by similar notice sent in like manner to the other Owner(s) and the Operator.  The effective date of any notice, demand, request or other communication issued pursuant to this Agreement shall be when:  (i) delivered to the address of the Owner or Operator personally, by messenger, by a nationally or internationally recognized overnight delivery service or otherwise; or (ii) received or rejected by the Owner or Operator, if sent by certified mail, return receipt requested, in each case, addressed to the Owner or Operator at its address and marked to the attention of the person designated above (or to such other address or person as an Owner or Operator may designate by notice to the Owners and/or Operator effective as of the date of receipt by such Owners and/or Operator).

20.02   Entire Agreement .   This Agreement and the Exhibits attached hereto, and the other documents between the Owners referenced herein constitute the entire agreement between the Owners and the Operator and supersede all prior agreements and understandings, whether oral and written, between the Owners and the Operator with respect to the subject matter hereof.  There are no oral understandings, terms or conditions and neither Owner nor the Operator has relied upon any representation or warranty, expressed or implied, not contained in this Agreement.

20.03   Parties Bound .   This Agreement shall be binding upon each of the Owners and the Operator and their respective successors and permitted assigns.


 


 

 

 

 

20.04   Amendments .

(a)        Except as otherwise provided in Section 20.04(c) , this Agreement may not be amended, supplemented or otherwise modified, other than pursuant to an instrument in writing executed by the Owners.

(b)        Absent agreement of both Parties to the proposed change and except as otherwise provided in Section 20.04(c) , the standard of review for changes to this Agreement proposed by a Party, or FERC acting sua sponte , shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956); provided that the standard of review for any modification to this Agreement requested by non-contracting third parties shall be the most stringent standard permissible under then-applicable law.

(c)        Nothing contained in this Agreement shall be construed as affecting in any way the right of either Party to unilaterally make application to FERC under Section 205 or Section 206 of the Federal Power Act for a change in the charges set forth in Exhibit F .  It is the intent of the Parties that the standard of review that FERC will apply to any such unilateral application shall be the just and reasonable standard of review rather than the “public interest” standard of review.

20.05   Waivers .   No waiver by any Owner or the Operator of any one or more defaults by any other Owner or the Operator in the performance of any of the provisions of this Agreement shall be construed as a waiver of any other default or defaults whether of a like kind or different nature.  Any delay, less than any applicable statutory period of limitations, in asserting or enforcing any rights under this Agreement shall not be deemed a waiver of such rights.  Failure of any Owner or the Operator to enforce any provisions hereof shall not be construed to waive such provision, or to affect the validity of this Agreement or any part thereof, or the right of any Owner thereafter to enforce each and every provision thereof.

20.06   Choice of Law .   This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho, without giving effect to conflicts of laws principles.

20.07   Headings .   Article and Section headings used in this Agreement (including headings used in any Exhibits attached hereto) are for convenience of reference only and shall not affect the construction of this Agreement.

20.08   Relationship of Parties .   The covenants, obligations, and liabilities of the Owners are intended to be several and not joint or collective, and nothing herein contained shall ever be construed to create an association, joint venture, trust or partnership, or to impose a trust or partnership covenant, obligation or liability on or with regard to any of the Owners.  Each Owner shall be individually responsible for its own covenant, obligations and liability as herein provided.  No Owner shall be under the control of, or shall be deemed to control, the other Owner.  Neither Owner shall have a right nor power to bind the other Owner without its express written consent.


 


 

 

 

 

20.09   Severability .  In the event that any provision of this Agreement or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the Owners and the Operator.  The Owners and the Operator further agree to replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such illegal, void or unenforceable provision.

20.10   No Third Party Beneficiaries .   Nothing express or implied in this Agreement is intended to nor shall be construed to confer upon or give to any Person (other than the Owners and the Operator) any rights or remedies under or by reason of this Agreement or any transaction contemplated herein.

20.11   Further Assurances .   Each Owner and the Operator agrees to execute and deliver from time to time such additional documents, and take such additional actions, as may be reasonably required by the other Owner or the Operator to give effect to the purposes and intent hereof.

20.12   Conflict of Interest .   Nothing in this Agreement shall prohibit any Owner or the Operator from engaging in or possessing any interest in other projects or business ventures of any nature and description, independently or with others.

20.13   Counterparts .   This Agreement may be executed in one or more counterparts, each of which shall be original, and all of which together shall constitute one agreement.  Electronic transmission of any signed original document, and retransmission of any signed electronic transmission, shall be the same as delivery of an original.  At the request of either Owner or the Operator, the other Owner or the Operator, as applicable, will confirm electronically transmitted signatures by signing an original document.

[SIGNATURE PAGE FOLLOWS]

 

 


 


 

 

 

 

IN WITNESS WHEREOF, each of the Owners has caused its duly authorized representative to execute this Hemingway Joint Ownership and Operating Agreement as of the date first above written.

 

IDAHO POWER:

IDAHO POWER COMPANY,

 

AS OWNER AND OPERATOR

 

 

 

By:  _____________________________

 

Name:______________________________

 

Title:_______________________________

 

 

PACIFICORP:

PACIFICORP,

 

AS OWNER

 

 

 

By:  _____________________________

 

Name:______________________________

 

Title:_______________________________

 

 

 


 


 

 

 

 

EXHIBIT A

 

Description of Transmission Facilities and Common Facilities

 

Section I.  Description of Transmission Facilities. 1

 

The Transmission Facilities includes all above ground 500kV structures, bus, and equipment and associated foundations starting at the 230kV side of the transformer high-side air break, 501H, to the extents of the station yard where the MPSN (Midpoint Substation) 1 and SMLK (Summer Lake) line terminals depart to the tap line segments.  The major equipment included in the Transmission Facilities consists of six 500kV breakers and one spare 500kV breaker (stored on location), seventeen 500kV airbreaks, one SMLK line reactor bank (three 1-phase units), and one shunt capacitor bank and associated barrier fence attached to bus #2.  Also included in the Transmission Facilities are 13 control, protection and line carrier panels, 3 intertie cabinets and their associated control cables from the panels to the yard equipment.  The Transmission Facilities also includes all components associated with both tap segments for the MPSN 1 and SMLK line terminals extending and connecting to the existing Midpoint–Summer Lake Line.

STATION

 

 

 

 

QTY

Equipment Description

Item

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 2000Amp

206

1

Power Circuit Breaker, 550kV 2000Amp

204

1

Power Circuit Breaker, 550kV 2000Amp

204

10

Local Equipment Annunciator Units for Reactors and Breakers

 

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

                                               

1 For asset accounting purposes, PacifiCorp may request unit of property breakdown information with greater detail than shown in this Exhibit A at the conclusion of construction.  Idaho Power will make reasonable and timely accommodation to such a request, not to exceed the level of detail produced for its own internal asset accounting purposes.

 

 


 

 

1

Shunt Capacitor, 550kV 220MVAR Expandable to 330MVAR

203

13

Switch, Motor Operated Airbreak, 500kV 4000A

208

3

Switch, Motor Operated Airbreak, 500kV 2000A

209-1

1

Switch, Motor Operated Airbreak w/ GND Switch, 500kV 2000A

209-2

12

Capacitor Voltage Transformer, 500kV

211

6

Capacitor Voltage Transformer, 500kV w/ Carrier Accessories

212

6

Line Trap, 500kV 3000A

214-1

6

Line Tuner, Single Phase Units

214-2

12

Surge Arrestor, 318kV MCOV

215

6

Surge Arrestor, 144kV MCOV

238

138

Insulator, Station Post, 500kV 1800BIL

217

48

Insulator, Station Post, 500kV 1800BIL

218

153

Insulator, Suspension, Polymer 500kV Class

220

 

 

 

QTY

Structure Description

Item

2

Steel Structure, 500kV Line-Deadend A-Frame Structure

100-1

4

Steel Structure, 500kV Line-Deadend A-Frame Structure

100-2

51

Steel Structure, 500kV 3-ph Airbreak Support

106-1

12

Steel Structure, 500kV CCVT Structure

107-1

6

Steel Structure, 500kV Line Trap Structure

107-2

9

Steel Structure, 500kV Surge Arrestor Structure

108

10

Steel Structure, 500kV Strain Bus A-Frame Structure

101

2

Steel Structure, 500kV Transfer Bus Structure, Reactor

103

2

Steel Structure, 500kV Transfer Bus Structure, Spare for Reactor

103

6

Steel Structure, 500kV 3-ph Bus Support, Future Airbreak Support

106-2

117

Steel Structure, Lally, 500kV 1-ph Low

110


 

 

Bus Support

 

3

Steel Structure, Lally, 500kV 1-ph Low Bus Support

110

16

Steel Structure, Lally, 500kV 1-ph Low Bus Support

111

 

 

 

QTY

Conductor Description

Item

3,500 ft

Conductor, 6” Aluminum Pipe, Schedule 80, 6063-T6

300

3,500 ft

Conductor, 1590 ACSR (Dampening for 6” Bus)

303

20,000 ft

Conductor, Strain Bus, 1780 ACSS “CHUKAR” 1.601 Diameter

304

6,750 ft

Conductor, 3/8” EHS Shield Wire

306

75,615 ft

Control Cable

 

 

 

 

QTY

Panel Description

P Number

1

Panel E9: SMLK 11-1 (Pri. #1 Relay)

5933

1

Panel E10: SMLK 11-2 (Pri. #2 Relay & 535A/536A Control)

5934

1

Panel E11: SMLK 11-3 (Pri. #3 Relay)

5935

1

Panel E12: SMLK L511 Protection & 511Z Control

5936

1

Panel E13: SMLK 511Z BF & Lockout

5937

1

Panel F14: RAS A & B (MPSN-HMWY-SMLK Remedial Action)

5947

1

Panel G13: MPSN#1 Power Line Carriers (RFL-9780-1, RFL-9780-2)

5953

1

Panel G14: SMLK Power Line Carriers (RFL-9780-1, RFL-9780-2)

5954

1

Panel H9: MPSN#1 11-1 (Pri. #1 Relay)

5955

1

Panel H10: MPSN#1 11-2 (Pri. #2 Relay & 538A/539A Control)

5956

1

Panel H11: MPSN#1 11-3 (Pri. #3 Relay)

5957

1

Panel L13: C513 11-1 (Pri. #1 Relay & 513W Control)

5966

1

Panel L14: C513 11-2 (Pri. #2 Relay)

5967

13

Panel Rack and Frames

 

1

Intertie Cabinet EF2: SUMMER LAKE 500kV LINE (535A/536A/511Z/L511/CCVT’s)

5985

 

 


 


 

1

Intertie Cabinet GH@: MPSN #1 500kV LINE (538A/539A/CCVT’s)

5987

1

Intertie Cabinet KL2: MPSN #2 500kV LINE(FUTURE) / C513

5991

 

 

 

QTY

Foundation Description

 

156

Other structures (for Items 101, 103, 106-2, 100, 111)

 

6

Deadend Structures (for Items 100-1 and 100-2)

 

78

Equipment Structures

 

3

Reactor oil containment

 

370 ft

Fence, Capacitor Bank Barrier

 

6

Key Interlock for Capacitor Bank Barrier Fence

 

 

 

 

TAP

 

 

 

 

 

QTY

Line Material Description

 

8

Dead-end, Single Pole Tubular Steel w/ Foundation

 

2

Tangent, Single Pole Tubular Steel w/ Foundation

 

2406

Insulator, 10” 52-5 b&s 30k

 

6

Insulator, Horizontal Post 500kV

 

40,500 ft

Conductor,  1272 ACSR 45/7 Bitten

 

8,500 ft

Overhead Ground Wire, 3/8 EHS Steel

 

 

 

 

Section II.  Description of Common Facilities.

 

Description

 

 

Land

 

 

Site Prep and Improvements

 

 

Fencing

 

 

Grounding

 

 

Cable Trench

 

 

Control Building

 

 

DC Batteries and Chargers

 

 

Local Service

 

 

Cabling and Controls not directly associated with Transmission Facilities above or 230 kV equipment

 

 


 


 

 

 

 

 

EXHIBIT B

 

[Intentionally omitted.]

 

 


 


 

 

 

 

EXHIBIT C

 

Ownership Interests

 

Owner

Ownership Interest

 

 

Idaho Power

41.0%

PacifiCorp

59.0%

 

Each Owner’s percentage Ownership Interest in the Transmission Facilities shall be determined based on the average of the percentage of Transmission Line Capacity of each 500 kV transmission line or transformer that has a connection to the Transmission Facilities at the Hemingway Substation that such Owner owns or controls.  For purposes of this Exhibit C , “ Transmission Line Capacity ” means, in respect of each 500 kV transmission line or transformer that has a connection to the Transmission Facilities at the Hemingway Substation, the total amount of rated transmission capacity of such transmission line or transformer, provided that the Owners agree that (i) neither the Transmission Line Capacity nor either Owner’s Ownership Interest shall change as a result of a temporary or permanent change in the rated transmission capacity of any such transmission lines or transformers that are connected to the Transmission Facilities at the Hemingway Substation and that were installed during 2010 and (ii) the Transmission Line Capacity and the Owners’ Ownership Interests shall only change, if at all, when an additional 500 kV transmission line or transformer is interconnected to the Hemingway Substation after 2010.

 


 


 

 

 

 

EXHIBIT D

 

[Intentionally omitted.]

 


 


 

 

 

 

EXHIBIT E

 

Construction Budget


$375,920.00

 


 


 

 

 

 

EXHIBIT F

 

Monthly Transmission Facilities O& M Charge and
Monthly Common Facilities Charge

 

The Monthly Transmission Facilities O&M Charge each month during the Term shall be equal to the product of (1) the Installed Cost of the Transmission Facilities, (2) PacifiCorp’s Ownership Interest, and (3) the O&M Expense Factor.

For purposes of this Exhibit F :

 

(i)         “ Installed Cost of the Transmission Facilities ” means the original and actual aggregate Cost of the Transmission Facilities incurred by or on behalf of Idaho Power as of the date construction of the Transmission Facilities is completed pursuant to Article III , trued-up to final Cost after all work orders for the construction of the Transmission Facilities are closed to account; and

 

(ii)        the “ O&M Expense Factor ” means 0.2036% per month.

 

The Monthly Common Facilities Charge each month during the Term shall be equal to the product of (1) the Installed Cost of the Common Facilities, (2) PacifiCorp’s Ownership Interest, and (3) the Common Facilities Factor. 

For purposes of this Exhibit F :

 

(i)         “ Installed Cost of the Common Facilities ” means the original and actual aggregate Cost of the Common Facilities incurred by or on behalf of Idaho Power as of the date construction of the Transmission Facilities is completed pursuant to Article III , trued-up to final Cost after all work orders for the construction of the Common Facilities are closed to account; and


(ii)        the “ Common Facilities Factor ” means 0.9653% per month .

 


 


 

 

 

 

EXHIBIT G

 

Point of Interconnection

 

See attached.

 

 


 


 

 

 

 

EXHIBIT H

Milestones

 

 

Milestone

Milestone Date

Filing of this Agreement at FERC for approval

5 Business Days after the Execution Date

500 kV yard energized

May 28, 2010

WECC ratings approved

June 15, 2010

 

 


 


 

 

 

 

SCHEDULE 13.01(f)

 

PacifiCorp’s Outstanding Governmental Authorizations

 

 

 


 


 

 

 

 

SCHEDULE 13.02(f)

 

Idaho Power’s Outstanding Governmental Authorizations

 

 

 

 

 


 


 

 

 

 

Exhibit H

Form of Populus Joint Ownership and Operating Agreement

 

This Populus Joint Ownership and Operating Agreement, dated this __ day of ____, 2010 (the “ Execution Date ”), is between PacifiCorp, an Oregon corporation, acting in its regulated transmission provider function (“ PacifiCorp ”), and Idaho Power, an Idaho corporation, acting in its regulated transmission provider function (“ Idaho Power ”).  Each of PacifiCorp and Idaho Power are sometimes hereinafter referred to individually as “ Owner ” and collectively as “ Owners ”.

RECITALS:

WHEREAS, PacifiCorp owns and operates certain facilities for the transmission of electric power and energy in interstate commerce, including the 345 kV Populus substation (the “ Populus Substation ”) which PacifiCorp is currently constructing near Downey, Idaho to provide additional transfer capability for power to serve PacifiCorp’s retail and wholesale customers and to provide line terminal connections for existing transmission lines located near the Populus Substation including the Kinport-Bridger Line, the Borah-Bridger Line and the Borah-Ben Lomond Line (each as defined below);

WHEREAS, Idaho Power has contractual rights to a portion of the transmission capacity of the Kinport-Bridger Line and the Borah-Bridger Line, both of which are located near the Populus Substation;

WHEREAS, PacifiCorp and Idaho Power believe that interconnecting the PacifiCorp Transmission System at the Populus Substation with the Kinport-Bridger Line and the Borah-Bridger Line will benefit both of the Owners and their customers;

WHEREAS, PacifiCorp and Idaho Power are parties to that certain Joint Purchase and Sale Agreement, dated as of April 30, 2010 (the “JPSA”), pursuant to which PacifiCorp has sold to Idaho Power and Idaho Power has purchased from PacifiCorp an undivided ownership interest in certain transmission and interconnection equipment and facilities at the Populus Substation used in connection with the transmission of electric power and energy (consisting of the equipment and facilities described in Section I of Exhibit A that were installed at the Hemingway Substation on or before the Closing Date, the “Transferred Transmission Facilities”);

WHEREAS, PacifiCorp individually owns additional equipment and facilities at the Populus Substation that serve the PacifiCorp Transmission System and will not be part of the Transmission Facilities (as defined below), but that PacifiCorp will make available to support the operation of the Transmission Facilities (as further described in Section II of Exhibit A, the “Common Facilities”);

WHEREAS, PacifiCorp individually owns additional equipment and facilities at the Populus Substation that will not be part of the Transmission Facilities, jointly owned by the Parties, or part of the Common Facilities used to support the operation of the Transmission Facilities (the “PacifiCorp Individually-Owned Populus Facilities”); and

                                                                             


 


 

 

 

 

WHEREAS, Idaho Power and  PacifiCorp desire to memorialize the terms and conditions by which they will: (i) construct and commission additional transmission and interconnection equipment and facilities at the Populus Substation used in connection with the transmission of electric power and energy (consisting of the equipment and facilities described in Section I of Exhibit A that had not been installed at the Hemingway Substation on or before the Closing Date, the “Jointly-Developed Transmission Facilities”); (ii) jointly own and develop the Transferred Transmission Facilities and the Jointly-Developed Transmission Facilities (collectively, the “Transmission Facilities”), (iii) operate and maintain the Transmission Facilities; (iv) interconnect the PacifiCorp Transmission System and the Transmission Facilities at the Populus Substation; and (v) establish the obligations of the Operator (as defined below) with respect to compliance with Reliability Standards (as defined below) applicable to the Transmission Facilities.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Idaho Power and PacifiCorp agree as follows:

ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION

1.01     Definitions .  Unless the context otherwise requires, the following capitalized terms have the meanings given to them below:

Affected Party ” has the meaning given to such term in Section 11.01 .

Affected System ” has the meaning given to such term in the applicable Owner’s OATT.

Affected System Operator ” has the meaning given to such term in the applicable Owner’s OATT.

Affiliate ” means, with respect to a Person, each other Person that, directly or indirectly, controls, is controlled by or is under common control with, such designated Person; provided , however , that in the case of PacifiCorp, “ Affiliate ” means MidAmerican Energy Holdings Company and its direct and indirect subsidiaries.  For the purposes of this definition, “ control ” (including with correlative meanings, the terms “ controlled by ” and “ under common control with ”), as used with respect to any Person, shall mean (i) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (ii) the right to direct the policies or operations of such Person.

Agreement ” means this Joint Ownership and Operating Agreement (including all Exhibits attached hereto), as the same may be amended and supplemented from time to time in accordance with the terms hereof.

Amendment ” has the meaning given to such term in Section 7.01(a) .

Approved Courts ” has the meaning given to such term in Section 18.04 .

                                                                             


 


 

 

 

 

Bankrupt ” means, with respect to any Person, that such Person:   (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes insolvent (however evidenced), (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (v) is generally unable to pay its debts as they fall due.

Ben Lomond-Populus Lines ” means the three (3) 345 kV transmission lines extending from the Ben Lomond Substation to the Populus Substation.

Ben Lomond Substation ” means the existing substation located near Ogden, Utah, which is owned by PacifiCorp.

 “ Borah Substation ” means the existing substation located near Idaho Falls, Idaho, which is owned by Idaho Power.

Borah-Bridger Line ” means the 345 kV transmission line extending from the Borah Substation to the Bridger Substation.

Borah-Ben Lomond Line ” means the 345 kV transmission line extending from the Borah Substation to the Ben Lomond Substation.

Borah-Populus Lines ” means the two (2) 345 kV transmission lines extending from the Borah Substation to the Populus Substation.

Bridger Substation ” means the existing substation located near Rock Springs, Wyoming, which is jointly owned by Idaho Power and PacifiCorp.

Business Days ” means any day except a Saturday, Sunday and any day which is a legal holiday or a day on which banking institutions in New York, New York are authorized or obligated by Governmental Requirements to close.

Capacity Share ” has the meaning given to such term in Section 4.02 .

Capital Upgrade Notice ” has the meaning given to such term in Section 7.01 .

Claims ” has the meaning given to such term in Section 14.01(a) .

Closing Date ” has the meaning given to such term in the JPSA.

Code ” has the meaning given to such term in Section 17.02 .

Commercially Reasonable Efforts ” means the level of effort that a reasonable electric utility would take in light of the then known facts and circumstances to accomplish the required action at a then commercially reasonable cost (taking into account the benefits to be gained thereby).

                                                                             


 


 

 

 

 

Common Facilities ” has the meaning given to such term in the recitals.

Construction Budget ” has the meaning given to such term in Section 3.05(b) .

Construction Costs ” has the meaning given to such term in Section 3.05(a) .

Construction Costs Cap ” has the meaning given to such term in Section 3.05(b) .

Construction Project ” has the meaning given to such term in Section 3.01(a) .

Continuing Owner ” has the meaning given to such term in Section 8.03 .

Costs ” means, with respect to the Operator’s construction of facilities pursuant to this Agreement, including the Transmission Facilities and capital upgrades and improvements thereto, or such construction on behalf of the Operator, the Operator’s actual cost of (i) preliminary surveys and investigations and property acquisitions in connection with such facilities and (ii) the development, design, engineering, procurement and construction of such facilities, including an allowance for funds used during construction and applicable overheads determined in accordance with the Operator’s customary practices, as calculated in accordance with FERC’s Uniform System of Accounts.

Damaged Facilities ” has the meaning given to such term in Section 8.01 .

Damage Notice ” has the meaning given to such term in Section 8.01 .

Decommissioning Notice ” has the meaning given to such term in Section 9.03 .

Defaulting Owner ” has the meaning given to such term in Section 12.01 .

Delegate ” has the meaning given to such term in Section 5.04 .

Dispute ” has the meaning given to such term in Section 18.01 .

Dispute Notice ” has the meaning given to such term in Section 18.02 .

Disputing Party ” has the meaning given to such term in Section 18.02 .

Electing Owner ” has the meaning given to such term in Section 7.01(a) .

Event of Default ” has the meaning given to such term in Section 12.01 .

Execution Date ” has the meaning given to such term in the preamble.

Executive(s) ” has the meaning given to such term in Section 18.03(a) .

 “ FERC ” means the Federal Energy Regulatory Commission.

FERC Methodology ” has the meaning given to such term in Section 5.08(b) .

                                                                             


 


 

 

 

 

FERC Uniform System of Accounts ” means the Uniform System of Accounts Prescribed for Public Utilities and Licensees Subject to the Jurisdiction of the Federal Power Act prescribed by FERC, and codified as of the Execution Date at 18 C.F.R. Part 101, as the same may be amended from time to time.

Force Majeure ” has the meaning given to such term in Section 11.01 .

Good Utility Practice ” means any of the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, would have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition.  Good Utility Practice is not intended to be limited to the optimum practice, method, or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts generally accepted in the region, including those practices required by Federal Power Act section 215(a)(4), 16 U.S.C. § 824o(a)(4)(2006).

Governmental Authority ” means any federal, state, local or municipal governmental body; any governmental, quasi-governmental, regulatory or administrative agency, commission, body or other authority exercising or entitled to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power, including FERC, NERC or any regional reliability council; or any court or governmental tribunal, in each case, having jurisdiction over either Owner (including PacifiCorp in its capacity as Operator) or any of its Affiliates or the ownership, use, operation and maintenance, repair and reconstruction, or retirement and decommissioning of all or a portion of the Transmission Facilities.

Governmental Authorizations ” means any license, permit, order, approval, filing, waiver, exemption, variance, clearance, entitlement, allowance, franchise, or other authorization from or by a Governmental Authority.

Governmental Requirements ” means all laws, statutes, ordinances, rules, regulations, codes, and similar acts or promulgations or other legally enforceable requirements of any Governmental Authority.

Idaho Power ” has the meaning given to such term in the preamble.

Idaho Power Transmission System ” means the transmission facilities owned, controlled or operated by Idaho Power that are used to transmit electricity to Idaho Power’s retail and wholesale electric service customers.

Indemnified Party ” has the meaning given to such term in Section 14.01(a) .

Indemnifying Party ” has the meaning given to such term in Section 14.01(a) .

Interconnection ” means the interconnection of the Populus Substation with (i) the Borah-Populus Lines, (ii) the Ben Lomond-Populus Lines, (iii) the Kinport-Populus Line, and

                                                                             


 


 

 

 

 

(iv) the Populus-Bridger Lines at the Point of Interconnection, in each case, as more specifically described in the one-line diagram set forth in Exhibit G .

 “ Interconnection Customer ” has the meaning given to such term in the applicable Owner’s OATT.

Interconnection Owner ” has the meaning given to such term in Section 6.03 .

 “ Interrupting Owner ” has the meaning given to such term in Section 10.05(c) .

Jointly-Developed Transmission Facilities ” has the meaning given to such term in the recitals.

JPSA ” has the meaning given to such term in the recitals.

Kinport-Bridger Line ” means the 345 kV transmission line extending from the Kinport Substation to the Bridger Substation.

Kinport-Populus Line ” means the 345 kV transmission line extending from the Kinport Substation to the Populus Substation.

Kinport Substation ” means the existing substation located near Pocatello, Idaho, which is owned by Idaho Power.

Losses ” mean any and all damages and losses, deficiencies, liabilities, taxes, obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses, whether or not resulting from third party claims, including the costs and expenses of any and all actions and demands, assessments, judgments, settlements and compromises relating thereto and the costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder and costs and expenses of remediation (including, in the case of remediation, all expenses and costs associated with financial assurance); provided , however , that in no event shall Losses include lost profits or damages and losses excluded under Section 14.08 .

 

Manager ” has the meaning given to such term in Section 18.03(a) .

Metering Equipment ” means all metering facilities and equipment, including meters, to be constructed and installed as part of the Transmission Facilities, as further described in Exhibit A .

Monthly Common Facilities Charge ” has the meaning set forth in Exhibit F .

Monthly Transmission Facilities O&M Charge ” has the meaning set forth in Exhibit F .

NERC ” means the North American Electric Reliability Council.

Non-Defaulting Owner ” means an Owner that is not a Defaulting Owner.

                                                                             


 


 

 

 

 

Non-Operating Owner ” means Idaho Power.

OATT ” means, with respect to each Owner, the Owner’s Open Access Transmission Tariff on file with FERC.

Operator ” means PacifiCorp, in its capacity as Operator under this Agreement.

Other Costs ” has the meaning given to such term in Section 5.08(a) .

Other Costs Records ” has the meaning given to such term in Section 5.06(b) .

Owner ” and “ Owners ” has the meaning given to such term in the preamble.

Ownership Interest ” means the tenant-in-common undivided ownership interest of an Owner in the Transmission Facilities which is set forth on Exhibit C , as the same may be adjusted from time to time pursuant to Exhibit C .

PacifiCorp ” has the meaning given to such term in the preamble.

PacifiCorp Individually-Owned Populus Facilities ” has the meaning given to such term in the recitals.

PacifiCorp Transmission System ” means the transmission facilities owned, controlled or operated by PacifiCorp that are used to transmit electricity to PacifiCorp’s retail and wholesale electric service customers.

Party ” means PacifiCorp or Idaho Power individually, and “ Parties ” means PacifiCorp and Idaho Power collectively.

Person ” means an individual, partnership, corporation, limited liability company, joint venture, association, trust, unincorporated organization, Governmental Authority, or other form of entity.

Point of Interconnection ” means the points of interconnection between the Transmission Facilities and PacifiCorp’s Transmission System, as described in the one-line diagram set forth in Exhibit G .

Populus Access Easement Agreement ” means the Populus Access Easement Agreement, dated as of approximately even date herewith, entered into by Idaho Power and PacifiCorp.

Populus-Bridger Lines ” means the two (2) 345 kV transmission lines extending from the Populus Substation to the Bridger Substation.

Populus Substation ” has the meaning given to such term in the recitals.

Proprietary Information ” has the meaning given to such term in Section 15.06 .

 

                                                                             


 


 

 

 

 

Qualified Owner ” means an Owner that has an OATT on file with FERC under which it is authorized to provide transmission service on its transmission system.

Reduction Event ” has the meaning given to such term in Section 6.02 .

Regulations ” has the meaning given to such term in Section 17.02 .

Reliability Standards ” means all reliability criteria for system users established by WECC or such other regional or national standard setting body with authority to promulgate or set such criteria (including NERC’s reliability standards), as such criteria may be adopted or modified from time to time.

Remaining Owner ” has the meaning given to such term in Section 9.03 .

Representatives ” means, in respect of an Owner or Operator, the directors, officers, shareholders, partners, members, employees, agents, consultants, contractors or other representatives of such Owner or Operator.

Rights-of-Way ” means all rights-of-way, easements and other interests (including fee interests) in real property on which the Transmission Facilities are or will be constructed that are owned by PacifiCorp or its Affiliates.

Tax Indemnifying Party ” has the meaning given to such term in Section 17.04 .

Tax Indemnitee Party ” has the meaning given to such term in Section 17.04 .

Taxes ” has the meaning given to such term in Section 17.03 .

Term ” has the meaning given to such term in Section 2.03 .

Transferee ” has the meaning given to such term in Section 15.01 .

Transferor ” has the meaning given to such term in Section 15.01 .

Transferred Transmission Facilities ” has the meaning given to such term in the recitals.

Transmission Facilities ” has the meaning given to such term in the recitals.

Transmission Facilities Contracts ” means (i) the “Populus Substation Facilities Contracts” as defined in the JSPA and (ii) each agreement, instrument or other contract relating to or in connection with the Transmission Facilities that the Operator enters into pursuant to this Agreement.

 

Transmission System ” means, in the case of PacifiCorp, the PacifiCorp Transmission System, and, in the case of Idaho Power, the Idaho Power Transmission System.

Unauthorized Use ” means the unauthorized use of the generation or transmission facilities of any other Person.

                                                                             


 


 

 

 

 

WECC ” means the Western Electricity Coordinating Council or any successor thereto.

WIS Agreement ” has the meaning given to such term in Section 14.08(b) .

1.02          Rules of Construction .

  The following rules of interpretation shall apply in this Agreement:

(a)        The masculine shall include the feminine and neuter.

(b)        References to “Articles,” “Sections” and “Exhibits” shall be to articles, sections and exhibits of this Agreement.

(c)        The Exhibits attached hereto are incorporated in and are intended to be a part of this Agreement.

(d)       This Agreement was negotiated and prepared by both Parties with the advice and participation of counsel.  The Parties have agreed to the wording of this Agreement and none of the provisions hereof shall be construed against one Party on the ground that such Party is the author of this Agreement or any part hereof.

(e)        Each reference in this Agreement to any agreement or document or a portion or provision thereof shall be construed as a reference to the relevant agreement or document as amended, supplemented or otherwise modified from time to time with the written approval of both the Parties.

(f)        Each reference in this Agreement to Governmental Requirements and to terms defined in, and other provisions of, Governmental Requirements shall be references to the same (or a successor to the same) as amended, supplemented or otherwise modified from time to time.

(g)        The term “day” shall mean a calendar day, the term “month” shall mean a calendar month, and the term “year” shall mean a calendar year.  Whenever an event is to be performed, a period commences or ends, or a payment is to be made on or by a particular date and the date in question falls on a day which is not a Business Day, the event shall be performed, or the payment shall be made, on the next succeeding Business Day; provided, however , that all calculations shall be made regardless of whether any given day is a Business Day and whether or not any given period ends on a Business Day.

(h)        Each reference in this Agreement to a Person includes its successors and permitted assigns; and each reference to a Governmental Authority includes any Governmental Authority succeeding to its functions and capacities.

(i)         In this Agreement, the words “include,” “includes” and “including” are to be construed as being at all times followed by the words “without limitation.”

(j)         The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall, unless otherwise specified, refer to this Agreement as a whole and not to any particular provision of this Agreement.

                                                                             


 


 

 

 

 

ARTICLE II
TERM

2.01     Effectiveness of this Agreement .  This Agreement shall become effective upon the Execution Date.

2.02     FERC Filing .  Within five (5) Business Days after the Execution Date, the Operator, on behalf of the Owners, shall file this Agreement with FERC as a “ Rate Schedule ” within the meaning of Part 35 of FERC’s regulations.  Each of the Owners shall support this Agreement in its current form at FERC when filed.  Each Owner shall reasonably cooperate with the Operator with respect to obtaining FERC approval of such FERC filing and provide any information, including testimony, reasonably required by the Operator to comply with the applicable FERC filing requirements.

2.03     Term .  The term of this Agreement (“ Term ”) shall commence upon the Execution Date and shall continue in full force and effect until terminated in accordance with the provisions hereof.

2.04          Termination .

  Subject to Section 2.05 , this Agreement shall terminate if one or more of the following events occur:

(a)        the Transmission Facilities are damaged and destroyed and the Owners decide not to repair or rebuild (or cannot reach agreement to repair or rebuild) the Damaged Facilities in accordance with Article VIII ;

(b)        the Transmission Facilities are retired and decommissioned in accordance with Article IX ;

(c)        all of the Ownership Interests in the Transmission Facilities are owned by only one Owner;

(d)       by mutual written agreement of the Owners; or

(e)        this Agreement is terminated by exercise of remedies pursuant to Section 12.03 .

2.05     Effect of Termination .

(a)        If this Agreement is terminated pursuant to Section 2.04 , then, except as for those provisions that are expressly intended to survive termination and, subject to Section 2.05(b) and receipt of any necessary Governmental Authorizations required by applicable Governmental Requirements, this Agreement shall terminate and become void and of no further force and effect, without further action by either Party, provided that neither Party shall be relieved from any of its obligations or liabilities hereunder accruing prior thereto.

(b)        In the event that this Agreement is terminated pursuant to Section 2.04 and the Non-Operating Owner continues to own all or a portion of the Ownership Interests in the Transmission Facilities, then:  (i) the Operator shall, upon written notice from the Non-Operating

 


 


Owner delivered to the Operator no later than fifteen (15) Business Days after termination of this Agreement pursuant to Section 2.04 , continue to perform such of its obligations and covenants in Articles VI , VII , VIII , X and XVI as are set forth in the notice; (ii) such obligations and covenants, together with Articles V , VI , VII , VIII , XI , X, XII , XIV , XV , XVIII , XIX and XX (to the extent applicable to the surviving covenants and obligations), shall continue in full force and effect notwithstanding the termination of this Agreement; and (iii) the Parties shall amend this Agreement to reflect such changes to this Agreement as shall be necessary and mutually acceptable to the Parties to conform this Agreement to the surviving provisions of this Agreement in accordance with this Section 2.05(b) .
 

ARTICLE III
CONSTRUCTION

3.01     Engineering, Design and Construction of the Jointly-Developed Transmission Facilities .

(a)        The Operator shall design, engineer, procure, construct, install, manage and perform all other activities necessary for the development, construction and commissioning of the Jointly-Developed Transmission Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations (the “ Construction Project ”).

(b)        The Operator shall use Commercially Reasonable Efforts to achieve each of the milestones by its respective milestone date as set forth in Exhibit H.  The Operator shall provide the Owners with prompt written notice of the date upon which it has achieved each milestone.

3.02     Interconnection .  PacifiCorp shall grant the Operator such access to the Kinport-Bridger Line and Borah-Bridger Line during the requested outage period to enable the Operator to interconnect the Transmission Facilities with the Populus Substation.  The Owners and the Operator recognize the need to use Commercially Reasonable Efforts to expedite all work with all due diligence, consistent with Good Utility Practice, so as to minimize outage times.

3.03     Rights-of-Way .  The Operator shall maintain the Rights-of-Way in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.

3.04     Monthly Reports .  Each month prior to the final completion and commissioning of the Transmission Facilities, the Operator shall prepare and deliver to the Owners reasonably detailed status reports, in form and substance reasonably acceptable to the Owners, regarding the implementation of the Construction Project, including (i) any expected delays (and their duration) in achieving any milestone by the respective milestone date as set forth on Exhibit H and (ii) the aggregate amount of Construction Costs incurred to date compared to the budgeted amount of Construction Costs set forth in the Construction Budget.

                                                                             


 


 

 

 

 

3.05     Development and Construction Costs .

(a)        Each Owner shall be responsible for, and shall pay, in accordance with this Section 3.05 , its pro rata share (based on its Ownership Interest) of all Costs (up to the Construction Costs Cap) actually incurred by or on behalf of the Operator in the performance of the Construction Project pursuant to Article III or otherwise incurred by or on behalf of PacifiCorp in the construction of the Transmission Facilities (collectively, the “ Construction Costs ”).

(b)        The Operator shall promptly notify the Owners in writing if it reasonably believes that the total Construction Costs to be incurred by or on behalf of the Operator or otherwise incurred by or on behalf of PacifiCorp in the construction of the Transmission Facilities will exceed the greater of (i) five percent (5%) of the aggregate amount of Construction Costs provided for in the budget attached hereto as Exhibit E (the “ Construction Budget ”), as the same may be revised from time to time pursuant to this Section 3.05(b ), and (ii) One Million Four Hundred Thousand Dollars ($1,400,000) (the “ Construction Costs Cap ”).  Thereafter, the Operator shall submit to the Owners for their approval, such approval not to be unreasonably withheld or delayed, a revised Construction Budget which shows the aggregate amount of Construction Costs that the Operator reasonably believes will be incurred by or on behalf of the Operator to complete the Construction Project in accordance with Article III or otherwise incurred by or on behalf of PacifiCorp in the construction of the Transmission Facilities.  The notice and approval rights set forth above in this Section 3.05(b) shall apply to the revised Construction Budget as well.  Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Operator be obligated to incur Construction Costs in excess of the Construction Costs Cap.

(c)        The Operator shall provide the Owners with invoices showing each Owner’s pro rata share (based on its Ownership Interest) of the Construction Costs, and the Non-Operating Owner shall pay the Operator its pro rata share (based on its Ownership Interests) of the Construction Costs, in accordance with Section 5.08 and Section 5.09 .

ARTICLE IV
OWNERSHIP INTERESTS

4.01     Ownership Interests .

(a)        Pursuant to the JPSA, as of the Closing Date, each Owner owns an undivided ownership interest, equal to its Ownership Interest, in the Transmission Facilities.

(b)        The Owners agree that they shall enter into such additional documentation as shall reasonably be required to document any change in the Ownership Interests of the Owners contemplated hereby, provided that in no event shall an Owner be responsible for paying any amount to the other Owner as a result of any change in any Ownership Interest or the Transmission Facilities except as expressly provided for in this Agreement or as otherwise agreed to by the Parties in writing.

 

 


 


 

 

 

 

4.02     Owner’s Capacity Share .

  Each of the Owners shall be entitled to a pro rata share (based on its Ownership Interest) of the bi-directional transmission capacity of the Transmission Facilities (“ Capacity Share ”).  Subject to Section 6.02 , each Owner’s Capacity Share entitles the Owner to provide and schedule transmission service over the Transmission Facilities to the extent of the Owner’s Capacity Share and to schedule and transmit an amount of energy commensurate with the Owner’s Capacity Share over the Transmission Facilities on its own behalf or on behalf of the Owner’s transmission customers; provided , however , that at no time shall an Owner be entitled to post, sell, schedule or transmit more than its Capacity Share of transmission capacity (and a commensurate amount of energy) on the Transmission Facilities, unless otherwise mutually agreed to in writing by the Owners.  Any use of the Transmission Facilities, other than as provided for in this Section 4.02 , shall be subject to the prior written approval of both Owners.

4.03     Qualified Owner .

 Each Owner shall take all actions required to continue to be a Qualified Owner during the Term.  If at any time during the Term an Owner ceases to be a Qualified Owner, then such Owner shall immediately provide notice thereof to the other Owner and take all actions required to resume being a Qualified Owner.

4.04     No Right to Use .

  For the avoidance of doubt, the provisions of this Agreement shall not confer upon either Owner the right to use or transmit energy over any transmission facilities owned by the other Owner (other than the Transmission Facilities as provided for herein).

4.05     Payments .

  All payments required to be made by or on behalf of the Owners under the terms of this Agreement, including payments to the Operator of the Monthly Transmission Facilities O&M Charge, the Monthly Common Facilities Charge and Other Costs, shall be made to the account or accounts designated by the Owner or Operator to which the payment is owed, by wire transfer (in immediately available funds in the lawful currency of the United States).

4.06     Waiver of Partition Rights .

  The Owners shall own their undivided Ownership Interests in the Transmission Facilities as tenants-in common.  The Owners acknowledge that any exercise of the remedy of partition (whether at law or in equity) of the Transmission Facilities or any portion thereof would be impracticable in view of the purposes and requirements of this Agreement, would violate the spirit and intent of this Agreement, and would defeat the Owners’ intentions and reasonable expectations as well as the consideration upon which each Owner entered into this Agreement.  Accordingly, each Owner agrees that during the Term it (a) will not, directly or indirectly, commence, maintain, support or join in any action or proceedings of any kind to partition the Transmission Facilities or any portion thereof, and (b) waives, after consultation with its qualified legal counsel, any and all rights that it may have under this Agreement or applicable Governmental Requirements (whether at law or in equity) or otherwise to commence, maintain, support or join in any such action or proceeding.  Each Owner acknowledges that the other Owner has entered into and will perform the terms of this Agreement in reliance upon the other Owner’s agreement and adherence to the terms of this Section 4.06 , and would not have entered into this Agreement but for such reliance; and that it would be unjust and inequitable for any Owner to violate or to seek relief from any provision of this Section 4.06 .

                                                                             


 


 

 

 

 

ARTICLE V
OPERATOR

5.01     Appointment of Operator .

(a)        The Owners hereby appoint PacifiCorp, and PacifiCorp hereby accepts appointment, to serve as Operator of the Transmission Facilities and the Common Facilities for the Owners and to perform the other covenants and obligations of the Operator expressly set forth in this Agreement, in accordance with the terms and conditions of this Agreement.

(b)        Notwithstanding anything to the contrary contained in this Agreement or Governmental Requirements, the Owners agree that the Operator shall have no obligations, responsibilities or duties to the Owners other than as are expressly provided for in this Agreement.

5.02     Authority of Operator .

(a)        The Operator shall be responsible in all respects for the construction of the Jointly-Developed Transmission Facilities and the operation and maintenance of the Transmission Facilities and the Common Facilities in accordance with Article III and Articles V-X .  Without limiting the foregoing, the Operator shall supervise and perform, or cause to be supervised and performed:  (i) the construction of the Jointly-Developed Transmission Facilities in accordance with Article III and this Article V , (ii) the physical operation and maintenance of, interconnection to, design of, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of, the Transmission Facilities in accordance with this Article V and Articles VI-X , and (iii) the physical operation and maintenance of the Common Facilities in accordance with Section 6.04 .  In the performance of its obligations under this Agreement, the Operator shall have authority, subject to the other terms of this Article V and Article III and Articles VI-X , to take any or all of the actions it reasonably determines are necessary to perform its obligations under this Agreement, including to make decisions on all matters relating to and to contract for, select and purchase on behalf of the Owners all materials, equipment and services (including from third-party consultants and advisors) necessary for:  (A) the engineering, design and construction of the Jointly-Developed Transmission Facilities pursuant to Article III , (B) the physical operation and maintenance of the Transmission Facilities pursuant to Article VI ; (C) the interconnection of Interconnection Customers to the Transmission Facilities pursuant to Section 6.03 ; (D) the development, design, engineering, procurement, construction, permitting, completion, testing and commissioning of capital upgrades or improvements to the Transmission Facilities pursuant to Article VII ; (E) the development, design, engineering, procurement, construction, permitting, completion, testing and commissioning of repairs to and reconstruction of the Transmission Facilities pursuant to Article VIII ; and (F) the retirement and decommissioning of the Transmission Facilities pursuant to Article IX.

(b)        The Owners and the Operator agree that title to all Jointly-Developed Transmission Facilities and capital upgrades and improvements constructed by or on behalf of the Operator pursuant to Section 6.01 shall vest with the Owners and shall be jointly owned by the Owners as tenants-in-common in accordance with their respective Ownership Interests.  Title

                                                                             


 

 

to all capital upgrades and improvements constructed by or on behalf of the Operator pursuant to Section 7.01 shall vest with and be owned by the Owners in accordance with Section 7.01 .

(c)        The Operator will exercise or enforce all of PacifiCorp’s benefits, rights and remedies under the Transmission Facilities Contracts for the benefit of the Owners pro rata (in accordance with their respective Ownership Interests) and without adverse distinction between the Owners.  In furtherance and not in limitation of the immediately preceding sentence, the Operator agrees to transfer, assign, distribute, pay over or otherwise make available to the Non-Operating Owner, the Non-Operating Owner’s pro rata share (based on its Ownership Interest) in any payments or proceeds obtained pursuant to any Transmission Facilities Contract.  Notwithstanding anything to the contrary contained in this Agreement, the Owners agree that only the Operator shall be entitled to exercise or enforce PacifiCorp’ benefits, rights and remedies under the Transmission Facilities Contracts.

5.03     Standard of Work .  The Operator shall perform all of its obligations under this Agreement as an independent contractor and in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.

5.04     Delegation of Responsibilities .  The Operator may, in its sole and absolute discretion, delegate all or a portion of its obligations under this Agreement to one or more Persons (each, a “ Delegate ”).  Notwithstanding any such delegation, the Operator shall remain responsible and liable for all such delegated obligations in accordance with the terms of this Agreement.

5.05     Governmental Authorizations .

(a)                The Operator is authorized to prepare and submit to all appropriate Governmental Authorities the necessary reports, applications, plans, specifications and other documents to procure all Governmental Authorizations required to perform its obligations under this Agreement with respect to the Transmission Facilities or to comply with Governmental Requirements, provided that the Operator shall consult with the Owners prior to the submission of any such reports, application, plans, specification and other documents.  To the extent permitted by Governmental Requirements, the Operator shall use Commercially Reasonable Efforts to obtain and structure all Government Authorizations for which it applies after the Execution Date in such a way as to recognize each Owner’s applicable Ownership Interests and Capacity Share as contemplated by this Agreement.  Notwithstanding anything to the contrary in this Agreement, nothing in Section 5.05 shall obligate the Operator to prepare and submit to appropriate Governmental Authorities any reports, applications, plans, specifications and other documents to procure any Governmental Authorizations required by the Owners in connection with their ownership of an Ownership Interest in the Transmission Facilities or the recovery of any costs and expenses in connection therewith.

(b)               To the extent that the Operator cannot obtain a Governmental Authorization pursuant to Section 5.05(a) on behalf of one or both of the Owners, each such Owner shall:  (i) be responsible for preparing and submitting to the appropriate Governmental Authority the necessary reports, applications, plans, specifications and other documents to

                                                                             


 


procure such Governmental Authorization; and (ii) exercise all Commercially Reasonable Efforts to obtain such Governmental Authorization.  Unless and until the Owner or Owners are able to obtain such Governmental Authorizations, the Operator shall not perform or continue to perform any of the Construction Project if to do so would result in the Owner or Owners being in violation of applicable Governmental Requirements or Governmental Authorizations.
 

(c)                Each Owner shall, at its own cost: (i) reasonably cooperate and support the Operator in obtaining any Governmental Authorizations required pursuant to Section 5.05(a) ; and (ii) reasonably respond to inquiries or requests issued to it by any Governmental Authority in respect of such Governmental Authorization; provided , however , that an Owner shall not be obligated pursuant to this Section 5.05(c) to disclose Proprietary Information except to the extent that it is otherwise required to disclose such Proprietary Information:  (A) by applicable Governmental Requirements; (B) by any Governmental Authority; or (C) pursuant to the express terms of this Agreement.

5.06     Access .

(a)        The Operator shall, to the extent possible under any Rights-of-Ways, provide each Owner and its designees reasonable access to the Transmission Facilities site to permit the Owners and their designees to inspect the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities, provided that (i) the Owners and their designees do not interfere with the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities or any portion thereof or pose a safety hazard; (ii) the Owners and their designees comply with any requirements of any rights-of-ways, license, easement or other real property interest agreement applicable to the Transmission Facilities; and (iii) the Owners and their designees performing the inspection comply with the Operator’s or any other contractor’s safety and security rules, as more specifically set out in the Populus Access Easement Agreement.

(b)        Each Owner may, at its cost, at any time during normal business hours and with reasonable prior notice of not less than ten (10) Business Days, but not more often than once in any twelve (12) month period, inspect and audit the books and records of the Operator and any of its Affiliates and any Delegate (and the Operator shall secure such rights for the Owners from its Affiliates and any Delegate) involved in the provision of services pursuant to this Agreement (“Other Costs Records”), to the extent reasonably relating to the determination of the Other Costs for which the Owners are liable under this Agreement as shown on an invoice provided to the Owners pursuant to Section 5.08 within twelve (12) months prior to the date of the audit notice.  The Operator shall, and shall cause any of its relevant Affiliates and any Delegate, to keep and maintain all such Other Costs Records to the extent reasonably relating to the determination of the Other Costs for which the Owners are liable under this Agreement and make such Other Costs Records available to the Owners in accordance with the terms of this Agreement.  If any audit discloses that, during such twelve (12)-month period, an overpayment or underpayment of Other Costs has been made by the Non-Operating Owner or the amount of any Other Costs allocated to the Owners on an invoice is incorrect, then such overpayment, underpayment or incorrect amount shall be resolved pursuant to Section 5.09.  The Owner



requesting the audit shall reimburse one hundred percent (100%) of all reasonable costs and expenses (including internal costs and expenses) incurred by or on behalf of the Operator and any of its Affiliates and any Delegate in complying with the provisions of this Section 5.06(b) , provided that the Owner shall not be required to reimburse any such costs if the audit determines that the Owner has made more than Twenty-Five Thousand Dollars ($25,000) in overpayments of Other Costs or more than Twenty-Five Thousand Dollars ($25,000) in Other Costs have been incorrectly allocated to the Owner.

5.07     Insurance .

(a)        Owner Insurance .  Each of the Owners shall be responsible for obtaining and maintaining during the Term insurance covering their respective legal liabilities related to their Ownership Interest in the Transmission Facilities.  Insurance required by this Section 5.07(a) will be placed with appropriate carriers and in amounts in accordance with Good Utility Practice and any applicable Governmental Requirements.

(b)        Property Insurance .

(i)         The Operator, on behalf of the Owners and any other named insureds or loss payees, will:  (A) determine the appropriate property insurance coverages, minimum amounts, self-insured amounts, deductibles and other insurance policy terms; (B) obtain and maintain such property insurance during the Term; and (C) be solely responsible for pursuing claims and/or negotiating settlements in respect of claims under such insurance coverages.  The Operator shall be compensated for the costs of obtaining and maintaining such insurance (including any premiums, taxes, and fees, deductibles, self-insurance or non-insured costs) through the Monthly Transmission Facilities O&M Charge.

(ii)        Physical damage to substations and equipment therein that is included as part of the Transmission Facilities in types and amounts that are reasonable and customary for similarly situated utilities.  Coverage may be insured or self-insured, or any combination of insured and self-insured.

(iii)       Insurance for physical damage to the transmission line and any related equipment outside the boundaries of any substation and included as part of the Transmission Facilities shall be fully self-insured.

5.08     Invoices .

(a)        The Non-Operating Owner shall pay the Operator the Monthly Transmission Facilities O&M Charge and the Monthly Common Facilities Charge calculated in accordance with Exhibit F as compensation for the Operator’s services under this Agreement.  Each Owner shall be responsible for its pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise) of costs incurred by or on behalf of the Operator under Sections 3.05(a) , 6.01(c) , 7.01(b) , 8.01 , 8.05(b) , 9.02 and 17.03 (the “ Other Costs ”).  In the event that the Operator incurs, or reasonably expects to incur, significant Other Costs (other than Construction Costs) in excess of One Hundred Thousand Dollars ($100,000), it shall immediately notify the Owners in writing of such Other Costs.

                                                                             


 


 

 

 

 

(b)        Not later than thirty (30) days after the end of each month during the Term, the Operator will deliver to the Owners an invoice which will show the Monthly Transmission Facilities O&M Charge and Monthly Common Facilities Charge payable by the Non-Operating Owner and each Owner’s pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise) of Other Costs.  The Non-Operating Owner shall pay the Monthly Transmission Facilities O&M Charge, the Monthly Common Facilities Charge, and its pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise) of Other Costs shown on the invoice no later than thirty (30) days after the date of the invoice.  Any payment past due will accrue interest, per annum, calculated in accordance with the methodology specified for interest in the FERC regulations at 18 C.F.R. § 35.19a(a)(2)(iii) (the “ FERC Methodology ”).  The failure by the Operator to timely deliver an invoice shall not relieve Idaho Power of its payment obligation in respect of the Monthly Transmission Facilities O&M Charge, Monthly Common Facilities Charge and Other Costs as shown on such invoice, or release PacifiCorp of its responsibility for its share of the Other Costs in such invoice.

5.09     Disputed Amounts .  If the Non-Operating Owner disputes any portion of any amount specified in an invoice delivered by the Operator pursuant to Section 5.08 , the Non-Operating Owner shall pay its total amount of the invoice when due, and, if actually known at the time by the Non-Operating Owner, identify the disputed amount and state that the disputed amount is being paid under protest.  Any disputed amount shall be resolved pursuant to the provisions of Article XVIII .  If it is determined pursuant to Article XVIII that an overpayment or underpayment has been made by the Non-Operating Owner or the amount of any Other Costs allocated to the Owners on an invoice is incorrect, then (i) in the case of any overpayment by the Non-Operating Owner, the Operator shall promptly return the amount of the overpayment (or credit the amount of the overpayment on the next invoice) to the Non-Operating Owner, (ii) in the case of an underpayment by the Non-Operating Owner, the Non-Operating Owner shall promptly pay the amount of the underpayment to the Operator (for the benefit of the other Owner), and (iii) in the case of an incorrect allocation of Other Costs to an Owner, the allocations of Other Costs on the next invoice shall be adjusted to correct for such incorrect allocation, in each case, together with interest for the period from the date of overpayment, underpayment or incorrect allocation until such amount has been paid or credited against a future invoice calculated in the manner prescribed for calculating interest on refunds under the FERC Methodology.

5.10     Assistance .  Each Owner shall cooperate with the Operator promptly, as and when reasonably requested by the Operator, to assist the Operator in the performance of its duties, responsibilities and obligations under this Agreement, including executing and delivering from time to time such additional documents, certificates or instruments, and taking such additional actions, as may be reasonably requested by the Operator.  Each Owner shall bear its own costs for providing such cooperation and assistance as requested by the Operator unless the Owners agree otherwise in writing.  Nothing in this Agreement shall preclude an Owner from exercising any rights expressly granted it under this Agreement or taking any action (or having its Affiliates take any action) with respect to any other transmission project, including any such project that may compete with the Transmission Facilities.

                                                                             


 


 

 

 

 

5.11     Remedies .

(a)        Notwithstanding any provision to the contrary contained in this Agreement, the Operator shall have no liability to the Non-Operating Owner in connection with the performance of its covenants and obligations under this Agreement, except as provided in this Section 5.11 and Section 14.01(c) .  The Non-Operating Owner agrees that it has a duty to mitigate any damages and shall use Commercially Reasonable Efforts to minimize any damages it may incur as a result of the Operator’s failure to perform or breach of any of its covenants or obligations under this Agreement.

(b)        The Owners and Operator acknowledge that the obligations and covenants performed by the Operator hereunder are unique and that the Non-Operating Owner will be irreparably injured should such obligations and covenants not be performed in accordance with the terms and conditions of this Agreement.  Consequently, the Non-Operating Owner will not have an adequate remedy at law if the Operator shall fail to perform its obligations and covenants hereunder.  The Non-Operating Owner shall have the right, in addition to any other remedy available under this Agreement, to specific performance of the Operator’s obligations and covenants hereunder, and the Owners and Operator agree not to take a position in any proceeding arising out of this Agreement to the effect that the Non-Operating Party has an adequate remedy at law.

ARTICLE VI
OPERATION AND MAINTENANCE; CURTAILMENT;
INTERCONNECTION WITH THIRD PARTIES; COMMON FACILITIES

6.01     Operation and Maintenance; Capital Upgrades and Improvements .

(a)        The Operator shall supervise and perform, or cause to be supervised and performed, the physical operation and maintenance of the Transmission Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.  Subject to Section 5.04 , the Operator may utilize its employees and supervisory personnel, and any independent technical advisors, consultants, contractors and agents which it may select, as may be required to perform the Operator’s obligations under this Section 6.01 .

(b)        The Operator shall make maintenance renewals and replacements to the Transmission Facilities (i) the costs of which are recordable as an operation and maintenance expense under the FERC Uniform System of Accounts; and (ii) that (A) are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice, and/or (B) are required by applicable Governmental Requirements and Governmental Authorizations.  Such maintenance renewals and replacements to the Transmission Facilities are included in the services for which the Operator is compensated by the Monthly Transmission Facilities O&M Charge.  The Operator shall not separately invoice the Owners for the costs of such maintenance renewals and replacements to the Transmission Facilities.  Notwithstanding anything to the contrary contained in this Agreement, any maintenance renewals and replacements made pursuant to this Section 6.01(b) shall be Transmission Facilities for purposes of this Agreement.

 


 


 

 

 

 

(c)        The Operator shall make capital upgrades and improvements to the Transmission Facilities (i) the costs of which are recordable as capital expenditures under the FERC Uniform System of Accounts, and (ii) which (A) are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice and/or (B) are required by applicable Governmental Requirements and Governmental Authorizations.  The Operator shall consult with the Owners and receive their prior approval, such approval not to be unreasonably withheld, delayed or conditioned, with respect to any capital upgrade or improvement for which the Operator reasonably expects to incur total project costs that exceed Two Hundred Fifty Thousand Dollars ($250,000).  The Owners shall be responsible for their pro rata share (based on their Ownership Interests) of any Costs incurred by or on behalf of the Operator in making such capital upgrades or improvements.  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades and improvements made pursuant to this Section 6.01(c) shall be Transmission Facilities for purposes of this Agreement.

6.02     Curtailment .  The Operator shall notify the Owners as soon as reasonably practicable upon becoming aware of any planned or unplanned event or circumstance, including an emergency condition or a rating study to comply with applicable Governmental Requirements or Reliability Standards, which physically or otherwise reduces or may reduce the amount of transmission capacity on all or a portion of the Transmission Facilities (“ Reduction Event ”), including the aggregate amount of reduction in the transmission capacity of the Transmission Facilities to the extent known by the Operator.  In the event of a Reduction Event, the Operator shall take such actions as the Operator may reasonably deem prudent and necessary to terminate the Reduction Event and to preserve and maintain the reliability, safety, integrity and operability of the applicable Transmission Facilities and to protect the health and safety of the public.  Each of the Owners shall provide notice of each Reduction Event in accordance with its respective OATT.

6.03     Interconnection with Third Parties .  The Owners acknowledge and agree that all third-party Interconnection Customer requests for interconnection to any of the Transmission Facilities must be coordinated with the Operator and processed in a manner consistent with the Owner’s OATT to which the Interconnection Customer’s request was made (“ Interconnection Owner ”).  An Interconnection Owner in receipt of a third-party Interconnection Customer request for interconnection with the Transmission Facilities will promptly notify the Operator and thereafter the Owners and the Operator will coordinate and cooperate to process the interconnection request.  The Operator will coordinate the conduct of any studies required to determine the impact of the interconnection request on the Transmission Facilities and the Affected Systems with Affected System Operators, including the Owners, in accordance with the Interconnection Owner’s OATT.  The Operator will include the Owners and such Affected System Operators in all meetings held with Interconnection Customers as required by the Interconnection Owner’s OATT.

6.04     Common Facilities .  The Operator shall make the Common Facilities available to the Owners to support the operation of the Transmission Facilities in accordance with the terms of this Agreement and without adverse distinction between the Owners.  The Operator shall supervise and perform, or cause to be supervised and performed, the physical operation and maintenance of the Common Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction

 


 



between the Owners.  Subject to Section 5.04 , the Operator may utilize its employees and supervisory personnel, and any independent technical advisors, consultants, contractors and agents which it may select, as may be required to perform the Operator’s obligations under this Section 6.04 .  The obligations performed by the Operator pursuant to this Section 6.04 are included in the services for which the Operator is compensated by the Monthly Common Facilities Charge, and the Operator shall not separately invoice the Owners and the Owners shall not be liable for any of the costs or expenses incurred by or on behalf of the Operator pursuant to this Section 6.04 .

ARTICLE VII
CAPITAL UPGRADES PROPOSED BY AN OWNER

7.01     Capital Upgrades .

(a)        At any time during the Term, an Owner (“ Electing Owner ”) may elect to make a capital upgrade or improvement to the Transmission Facilities, provided that in no event shall an Electing Owner be entitled to make a capital upgrade or improvement to the Transmission Facilities that reasonably would be expected to have a material adverse effect on the other Owner’s ownership, use or enjoyment of its Ownership Interest of the Transmission Facilities (and associated Capacity Share) as contemplated in this Agreement.  An Electing Owner shall provide the other Owner no less than sixty (60) days’ prior written notice of its election, together with reasonable details about the proposed upgrade or improvement (each, a “ Capital Upgrade Notice ”).  Within sixty (60) days of receipt of the Capital Upgrade Notice, the other Owner may notify the Electing Owner in writing that it elects to participate in the capital upgrade or improvement to the Transmission Facilities.

(i)         If the other Owner delivers notice to the Electing Owner within the sixty (60) day period that it elects to participate in the capital upgrade or improvement to the Transmission Facilities, then the Owners shall meet and agree on: (A) the final scope of the capital upgrade or improvement; (B) the allocation of increased transmission capacity, if any, associated with such capital upgrade and improvement between the Owners, including any change in the Owners’ Capacity Shares; (C) any change in each Owner’s Ownership Interest; (D) each Owner’s share of the costs of such upgrade or improvement; (E) any change in the Monthly Transmission Facilities O&M Charge; and (F) such other matters as the Owners may agree upon, all of which shall be memorialized in an amendment to this Agreement executed by the Owners, including any amendments to the Exhibits hereto (the “ Amendment ”); provided , however , that any failure of the Owners to agree on any of the matters specified in subparts (A) through (F) above shall be resolved pursuant to the provisions of Article XVIII .  Notwithstanding any provisions to the contrary in this Agreement, an Owner shall not be prohibited from making a capital upgrade or improvement to the Transmission Facilities pursuant to this Section 7.01(a) because the Owners fail to agree on any of the matters specified in subparts (A) through (F) of the immediately preceding sentence, and any such disagreement shall be resolved pursuant to Article XVIII .

(ii)        If the other Owner elects not to participate in the capital upgrade or improvement to the Transmission Facilities (or fails to deliver a notice to the Electing Owner within the sixty (60) day period), then the Electing Owner may proceed with the capital upgrade

 


 


 

 

 


or improvement, provided that the Electing Owner shall coordinate with the Operator on the final scope of the capital upgrade or improvement.

(b)        The Operator shall design, permit, construct, install and commission any upgrades or improvements to the Transmission Facilities provided for in Section 7.01(a)(i) in accordance with the Amendment or, if applicable, any resolution pursuant to Article XVIII , and otherwise in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations.  The Owners shall be responsible, based on the Amendment or, if applicable, any resolution pursuant to Article XVIII , for all of the Costs incurred by or on behalf of the Operator in connection with such capital upgrade or improvement to the Transmission Facilities.  Effective as of the date of successful commissioning of such capital upgrade or improvement, written notice of which the Operator shall provide to the Owners, the Owners’ Ownership Interests and Capacity Shares shall be adjusted, if at all, in accordance with the Amendment or, if applicable, any resolution pursuant to Article XVIII , and the Owners shall memorialize any revised Ownership Interests in a revised Exhibit C which shall be effective as of the date of successful commissioning of such upgrade or improvement.  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades or improvements provided for in this Section 7.01(b) shall be Transmission Facilities for purposes of this Agreement.

(c)        The Operator shall design, permit, construct, install and commission any upgrades or improvements to the Transmission Facilities provided for in Section 7.01(a)(ii) in accordance with the final scope of the capital upgrade or improvement established by the Electing Owner pursuant to Section 7.01(a)(ii) , and otherwise in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations.  The Electing Owner shall be responsible for all of the Costs incurred by or on behalf of the Operator in connection with such capital upgrade or improvement to the Transmission Facilities and title to such capital upgrades or improvement shall vest solely with the Electing Owner.  Effective as of the date of successful commissioning of such capital upgrade or improvement, written notice of which the Operator shall provide to the Owners, (i) the Owners’ Ownership Interests shall be adjusted, if at all, in accordance with Exhibit C , (ii) the Owners shall memorialize any revised Ownership Interests in a revised Exhibit C which shall be effective as of the date of successful commissioning of such upgrade or improvement, and (iii) the Operator shall operate and maintain such capital upgrade or improvement in accordance with Section 6.01(a) .  In addition, the Owners shall meet and agree on: (A) the allocation of increased transmission capacity, if any, associated with such capital upgrade and improvement between the Owners, including any change in the Owners’ Capacity Shares; (B) any change in the Monthly Transmission Facilities O&M Charge; and (C) such other matters as the Owners may agree upon, all of which shall be memorialized in an amendment to this Agreement executed by the Owners, including any amendments to the Exhibits hereto; provided , however , that any failure of the Owners to agree on any of the matters specified in subparts (A) through (C) above shall be resolved pursuant to the provisions of Article XVIII .  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades or improvements provided for in this Section 7.01(c) shall not be Transmission Facilities for purposes of this Agreement.

                                                                             


 


 

 

 

 

(d)       Notwithstanding anything to the contrary contained herein, the provisions of this Section 7.01 shall not apply to capital upgrades or improvements made by the Operator pursuant to Section 6.01(c) which are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice or required by applicable Governmental Requirements or Governmental Authorizations, which shall be governed by the provisions of Section 6.01 .

(e)        Each Owner shall provide the Operator prompt written notice of any request pursuant to its OATT from a third-party customer to provide additional transmission capacity that will require one or more capital upgrades or improvements to the Transmission Facilities.  If capital upgrades or improvements are required in accordance with such Owner’s OATT, then such capital upgrades and improvements shall be made by the Operator in accordance with the provisions of Section 7.01(a) and Section 7.01(b) .

ARTICLE VIII
PHYSICAL DAMAGE TO TRANSMISSION FACILITIES; CONDEMNATION

8.01     Rebuilding Damaged Facilities .  If any of the Transmission Facilities are materially damaged or destroyed (the “ Damaged Facilities ”), then within thirty (30) days of the date the damage or destruction occurred, the Operator shall deliver to the Owners a written notice (the “ Damage Notice ”) of the Operator’s good faith reasonable estimate of the cost to repair or rebuild the Damaged Facilities.  If the Damage Notice indicates that the total project cost to repair or rebuild the Damaged Facilities is estimated to be Five Million Dollars ($5,000,000) or more, inclusive of insurance proceeds, then the Owners will determine whether the Damaged Facilities will be repaired or rebuilt within thirty (30) days of the date of the Damage Notice.  If the Damage Notice indicates that the total project cost to repair or rebuild the Damaged Facilities is estimated to be less than Five Million Dollars ($5,000,000), inclusive of insurance proceeds, then the Operator will determine whether the Damaged Facilities will be repaired or rebuilt and provide notice thereof to the Owners within thirty (30) days of the date of the Damage Notice.  If the Owners or the Operator determines pursuant to this Section 8.01 to repair or rebuild the Damaged Facilities, then the Owners will, upon receipt of any insurance proceeds paid in connection with such Damaged Facilities, apply such proceeds (up to its pro rata share based on its Ownership Interest) to the repair and reconstruction of the Damaged Facilities which will be carried out by the Operator, provided that the Operator shall pay pro rata to the Owners (in accordance with their Ownership Interests) any insurance proceeds received from any property insurance obtained by the Operator pursuant to Section 5.07(b) .  The Operator will be responsible for obtaining any necessary Governmental Authorizations to repair or rebuild the Damaged Facilities and determining the manner in which to repair and reconstruct the Damaged Facilities (including the equipment to be used).  Each Owner shall reasonably cooperate with and support the Operator in obtaining any such Governmental Authorizations in accordance with Section 5.05(c) .  The Operator will cause such repairs or reconstruction to be made so that the Damaged Facilities will be repaired and restored to substantially the same general condition, character and use as existed prior to such damage or destruction.  If the cost of such repairs or reconstruction exceeds the insurance proceeds required to be applied to the repair or reconstruction pursuant to this Section 8.01 , then the Owners shall pay, in accordance with their applicable Ownership Interests, the shortfall amount.

                                                                             


 


 

 

 

 

8.02     Decision not to Rebuild .  If the Owners determine pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities (or cannot reach agreement to repair or rebuild the Damaged Facilities) or the Operator determines pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities, then, in each case, (a) each Owner shall (i) be entitled to retain any insurance proceeds received pursuant to insurance maintained by it with respect to the Damaged Facilities, (ii) receive its share of any revenues from the salvage or sale of the Damaged Facilities and (iii) pay its pro rata share (based on its Ownership Interest) of any costs of removal of parts and equipment from the Damaged Facilities, (b) the Operator shall pay pro rata to the Owners (in accordance with their Ownership Interests) any insurance proceeds received from any property insurance obtained by the Operator pursuant to Section 5.07(b) , and (c) subject to Section 8.03 , this Agreement shall terminate pursuant to Section 2.04(a) .

8.03     Purchase of Ownership Interest .  If pursuant to Section 8.01 the Owners determine not to repair or rebuild the Damaged Facilities (or cannot reach agreement to repair or rebuild the Damaged Facilities) or the Operator determines that the Damaged Facilities should not be repaired and reconstructed and, in each case, one Owner desires to repair or rebuild the Damaged Facilities (the “ Continuing Owner ”), then the Continuing Owner shall have the option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner.  In order to exercise its option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner, the Continuing Owner must give written notice thereof to the other Owner within thirty (30) days of the Owners’ or Operator’s determination pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities.  The Owners shall enter into such documentation as the Continuing Owner shall reasonably request to document the purchase and sale of all of the Ownership Interest (and Capacity Share) of the other Owner in the Transmission Facilities, provided that the purchase price of the Ownership Interest (and Capacity Share) of the other Owner shall be equal to the other Owner’s pro rata share (based on its Ownership Interest) of: (a) the salvage value of the Damaged Facilities, and (b) the depreciated cost of the Transmission Facilities which are not part of the Damaged Facilities.

8.04     Cooperation .  If the Continuing Owner seeks to repair or rebuild the Transmission Facilities purchased from the other Owner pursuant to Section 8.03 , then, at the Continuing Owner’s request and expense, the other Owner and the Operator (if the Continuing Owner is not the Operator) will, for a reasonable period of time, cooperate with and use Commercially Reasonable Efforts to assist the Continuing Owner in the repair or rebuilding of the Damaged Facilities.  This Section 8.04 shall survive the expiration or termination of this Agreement.

8.05     Condemnation .  If there occurs a loss of title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities, as the result of the exercise of the right of condemnation or eminent domain by or on behalf of any Governmental Authority, then the Operator will promptly give notice thereof to the Owners, which notice shall generally describe the nature and extent of such condemnation or eminent domain proceedings (including any negotiations in connection with such proceedings).  The Operator shall, in consultation with the Owners, use Commercially Reasonable Efforts to resist the loss of title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities through condemnation or eminent domain.  If, as a result of condemnation or eminent domain, the Owners shall lose title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities, the Owners shall determine, by mutual agreement, whether:

                                                                             


 


 

 

 

 

(a)                the Transmission Facilities are no longer useful for the transmission of electric power and should be retired and decommissioned, in which case the provisions of Article IX shall control;

(b)               the Transmission Facilities should be replaced or modified, in which case the Owners will, upon receipt of any awards paid in connection with such condemnation or eminent domain, apply such awards to the replacement or modification of the Transmission Facilities which will be carried out by the Operator.  The Operator will, consistent with the mutual agreement of the Owners, determine the manner in which to replace or modify the Transmission Facilities (including the equipment to be used), and will cause such replacement and modifications to be made so that the Transmission Facilities are replaced or modified in accordance with the mutual agreement of the Owners.  If the cost of replacement or modification of the Transmission Facilities exceeds the awards received by the Owners in connection with such condemnation or eminent domain, then the Owners shall pay their pro rata shares (based on their Ownership Interests) of the shortfall amount; or

(c)                if the Owners do not reach mutual agreement on one of the actions provided for in paragraphs (a) and (b) above, or on another course of action, within sixty (60) days after the date of the notice provided by the Operator to the Owners pursuant to the first sentence of this Section 8.05 , then each Owner shall receive its pro rata share (based on its Ownership Interest) of all awards received by the Owners (or their Affiliates) in connection with any such condemnation or eminent domain (less the actual cost, fees and expenses incurred by the Operator in collection thereof).

ARTICLE IX
RETIREMENT AND DECOMMISSIONING

9.01     Decision to Retire Transmission Facilities .  The Owners will determine in accordance with the terms of this Article IX when the Transmission Facilities are no longer useful for the transmission of electric power and should be retired and decommissioned.  If the Owners mutually agree to retire and decommission the Transmission Facilities, then, subject to Section 9.02 and Section 9.03 , this Agreement shall terminate pursuant to Section 2.04(b) .

9.02     Costs of Decommissioning .  Each of the Owners shall be responsible for paying its pro rata share (based on its Ownership Interest) of the aggregate amount of all costs incurred by or on behalf of the Operator to retire permanently the Transmission Facilities from service, including decommissioning, dismantling, demolishing and removal of equipment, facilities and structures, security, maintenance, disposing of debris, abandonment and all other costs incurred by or on behalf of the Operator to retire permanently the Transmission Facilities from service, net of any amounts recovered in connection with the sale of any retired equipment, facilities and structures.

9.03     Purchase of Ownership Interest .  Each Owner shall give written notice to the other Owner when it believes the Transmission Facilities should be retired and decommissioned (each, a “ Decommissioning Notice ”).  If the other Owner desires to continue the operation of the Transmission Facilities (the “ Remaining Owner ”), then the Remaining Owner shall have the option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner in the

 

 


 


 

 

 


Transmission Facilities.  In order to exercise its option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner in the Transmission Facilities, the Remaining Owner must give written notice thereof to the other Owner within ninety (90) days of receipt of the other Owner’s Decommissioning Notice.  The Owners shall enter into such documentation as the Remaining Owner shall reasonably request to document the purchase and sale of the Ownership Interest (and Capacity Share) of the other Owner, provided that the purchase price of the Ownership Interest (and Capacity Share) of the other Owner shall be equal to the other Owner’s pro rata share (based on its Ownership Interest) of the depreciated cost of the applicable Transmission Facilities.

9.04     Cooperation .  If the Remaining Owner seeks to purchase and continue the operation of the Transmission Facilities, then, at the Remaining Owner’s request and expense, the other Owner and the Operator (if the Remaining Owner is not the Operator) will, for a reasonable period of time, cooperate with and use Commercially Reasonable Efforts to assist the Remaining Owner in the continued operation of the Transmission Facilities.  This Section 9.04 shall survive the expiration or termination of this Agreement.

ARTICLE X
INTERCONNECTION

10.01   Grant of Interconnection .  Subject to the terms and conditions in this Article X , the PacifiCorp Transmission System and Transmission Facilities shall be interconnected at the Point of Interconnection.

10.02   Interconnection Operating Procedures .  Prior to the energization of the Interconnection, the Owners shall develop written operating procedures, in accordance with WECC reliability requirements, governing operation of the Interconnection by the Operator.  The Owners may, by mutual written agreement, amend and supplement the operating procedures, in accordance with WECC reliability requirements, governing operation of the Interconnection by the Operator.

10.03   Interconnection Energization .  The Owners shall energize, or cause to be energized, the Interconnection upon successful completion of acceptance testing of the Interconnection by the Operator, including installation of the Metering Equipment specified in Section 10.04 , and completion of the operating procedures specified in Section 10.02 .

10.04   Metering .  The Operator shall operate and maintain the Metering Equipment in accordance with Good Utility Practice and applicable WECC operating guides, protocols and metering guidelines.  

 

(a)        The Operator shall test the Metering Equipment no less frequently than once every two (2) years.  The Owners shall be given reasonable advance notice of the Operator’s testing of the Metering Equipment and shall have the opportunity to observe such testing, and the Operator shall provide the Owners a copy of meter results (including any early results to the extent the Operator has access to the results) promptly upon the results being available to the Operator.  Each Owner may request additional tests of the Metering Equipment beyond those required by the first sentence of this Section 10.04(a) , provided such additional

 

                                                                             


 


 

 


tests shall be conducted by the Operator at the expense of the requesting Owner, unless such additional test reveals that the Metering Equipment is found to register outside the accepted accuracy range for watts and vars of full load equals +/- 0.2%, light load equals +/-0.2%, and power factor equals +/-0.3%, in which event the expense of the additional testing will borne by the Owners equally.

(b)        If, as a result of any test, the Metering Equipment is found to be registering outside the applicable accuracy standard in effect at the time of the test, such Metering Equipment shall be restored to the accuracy standard or an accurate meter substituted by the Operator.

(c)        The Operator shall provide each Owner with a real time remote signal from the Metering Equipment pursuant to established inter-control area communications protocols.

10.05   Service Conditions .

(a)        Operation and Maintenance; Avoidance of Burdens and Control of System Disturbances .  Each Owner shall operate and maintain its Transmission System in a manner consistent with Good Utility Practice and the provisions of this Section 10.05 .  In addition, each Owner shall operate and maintain its respective Transmission System so as to minimize, in accordance with Good Utility Practice, the likelihood of a disturbance originated in either Transmission System, which might cause impairment to the service of the other Owner or of any transmission system interconnected with the Transmission System of the other Owner.  Either Owner may install and operate on its Transmission System such relays, disconnecting devices, and other equipment as it may deem appropriate for the protection of its Transmission System, provided that any such relays, disconnecting devices and other equipment on the Transmission Facilities shall be handled pursuant to Article VII .

(b)        Additional Services .  This Article X is applicable only to the physical interconnection of the Owners’ Transmission Systems at the Point of Interconnection and does not obligate either Owner to receive or provide any service.  Other services provided by one Owner to the other Owner shall be governed by such other agreements as the Owners may enter into from time to time.  Neither Owner shall be obligated to deliver reactive power for the benefit of the other Owner, and neither Owner shall be obligated to receive reactive power when to do so might introduce objectionable operating conditions on its Transmission System.                                                                      

 

(c)        Interruption of Service .  The Owners shall use Commercially Reasonable Efforts, consistent with Good Utility Practice and any applicable Reliability Standards and Governmental Requirements, to provide a physical interconnection to be operated in continuous synchronization at the Point of Interconnection, provided that an Owner (“ Interrupting Owner ”) may temporarily interrupt or isolate the Interconnection under the following circumstances:  (i) by operation of automatic equipment installed for power system protection; (ii) after consultation with the other Owner, other than in an emergency situation where consultation is not practicable, when an Owner deems it necessary for installation, maintenance, inspection, repairs or replacements of equipment on its Transmission System; (iii) at any time that, in the sole judgment of the Interrupting Owner, such action is necessary to preserve the integrity of, or to

         


 


 

 

 
prevent or limit any instability on, or to avoid or mitigate an Unauthorized Use on its Transmission System; (iv) where necessary to comply with documented directives from a Governmental Authority; (v) as a result of one or more events of Force Majeure; or (vi) where necessary to prevent (A) death or serious injury to any person, (B) material damage or harm to any property or (C) any material adverse effect to the security of, or damage to its Transmission System or the electric systems of others to which its Transmission System is directly connected, including the other Owner’s Transmission System.  An Interrupting Owner shall use Commercially Reasonable Efforts to provide the other Owner (1) with reasonable advance notice of any planned interruption of the Interconnection and (2) with notice of any other interruption of the Interconnection as soon as practicable after the interruption.  If synchronous operation is interrupted, the Owners shall cooperate so as to remove the cause of such interruption as soon as commercially practicable consistent with Good Utility Practice, applicable Reliability Standards and applicable Governmental Requirements.

(d)       Physical and Cyber Security .  The Operator shall cooperate with each Owner in complying with any physical and cyber security or other security requirement established by Governmental Requirement, including Reliability Standards, applicable to the Owner and the Transmission Facilities, written notice of which the Owner provides to the Operator.

10.06   Survival of Interconnection Provision .  The provisions of this Article X , together with Articles XI XII , XIV , XV , XVIII , XIX and XX (to the extent applicable to the surviving provisions of this Article X ), shall continue in full force and effect notwithstanding the expiration or termination of this Agreement, provided that in the event of expiration or termination of this Agreement, the Parties shall amend this Agreement to reflect such changes to this Agreement as shall be necessary and mutually acceptable to the Parties to conform this Agreement to the surviving provisions of this Agreement in accordance with this Section 10.06 .

ARTICLE XI
FORCE MAJEURE

11.01   Force Majeure Defined .  For purposes of this Agreement, “ Force Majeure ” means an event or circumstance beyond the reasonable control of and without the fault or negligence of the Owner or Operator claiming Force Majeure (“ Affected Party ”), which, despite the exercise of reasonable diligence, cannot be or be caused to be prevented, avoided or removed by such Affected Party including, to the extent satisfying the above requirements, acts of God; earthquake; abnormal weather condition; hurricane; flood; lightning; high winds; drought; peril of the sea; explosion; fire; war (declared or undeclared); military action; sabotage; riot; insurrection; civil unrest or disturbance; acts of terrorism; economic sanction or embargo; civil strike, work stoppage, slow-down, or lock-out that are of an industry or sector-wide nature and that are not directed solely or specifically at the Affected Party; the binding order of any Governmental Authority, provided that the Affected Party has in good faith reasonably contested such order; the failure to act on the part of any Governmental Authority, provided that such action has been timely requested and diligently pursued; unavailability of equipment, supplies or products, but only to the extent caused by Force Majeure; failure of equipment, provided that the equipment has been operated and maintained in accordance with Good Utility Practice; and

 


 



 transportation delays or accidents, but only to the extent otherwise caused by Force Majeure; provided , however , that neither insufficiency of funds, financial inability to perform nor changes in market conditions shall constitute Force Majeure.

11.02   Effect of Force Majeure .

(a)        If an Affected Party is rendered wholly or partly unable to perform its obligations under this Agreement or its performance is delayed because of Force Majeure, such Affected Party shall be excused from, and shall not be liable for, whatever performance it is unable to perform or delayed in performing due to the Force Majeure to the extent so affected, provided that:

(i)         The Affected Party, as soon as reasonably practical after the commencement of the Force Majeure, gives the other Owner(s) and the Operator prompt written notice thereof, including a description of the particulars of the Force Majeure;

(ii)        The suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure; and

(iii)       The Affected Party uses Commercially Reasonable Efforts to overcome and remedy its inability to perform as soon as reasonably practical after the commencement of the Force Majeure.

(b)        Notwithstanding anything in this Article XI to the contrary, no payment obligation arising under this Agreement prior to the date of an event of Force Majeure shall be excused by such event of Force Majeure.

(c)        Whenever an Affected Party is required to commence or complete any action within a specified period and is prevented or delayed by Force Majeure from commencing or completing such action within the specified period, such period shall be extended by an amount equal to the duration of such event of Force Majeure occurring or continuing during such period.

ARTICLE XII
EVENTS OF DEFAULT

12.01   Event of Default .

  Each of the following events shall constitute an event of default (“ Event of Default ”) by the defaulting Owner (a “ Defaulting Owner ”):

(a)                the failure to make, when due, any payment required pursuant to this Agreement, if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner;

(b)               any representation or warranty made by such Defaulting Owner herein is false or misleading in any material respect when made, unless (i) the fact, circumstance or condition that is the subject of such representation or warranty is made true within thirty (30) days after notice thereof from the Non-Defaulting Owner, provided that if the fact, circumstance or condition that is the subject of such representation or warranty reasonably cannot be corrected

 


 


 

 


 within such thirty (30) day period, then the Defaulting Owner shall have an additional period of time (not to exceed sixty (60) days) in which to correct the fact, circumstance or condition that is the subject of such representation or warranty, and (ii) such cure removes any adverse effect on the Non-Defaulting Owner of such fact, circumstance or condition being otherwise than as first represented, or such fact, circumstance or condition being otherwise than as first represented does not materially adversely affect the Non-Defaulting Owner;

(c)                a transfer, assignment or other disposition of its interest in this Agreement or its Ownership Interest (or Capacity Share) in the Transmission Facilities, in each case, in violation of Article XIX;

(d)               the failure to perform or breach of its covenants and obligations in Section 4.06;

(e)                the failure to be a Qualified Owner, if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner;

(f)                the failure to perform or breach of any material covenant or obligation set forth in this Agreement (other than provided for in Section 12.01(a), (b), (c), (d) or (e)), if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner, provided that if such failure or breach cannot reasonably be cured within thirty (30) days, then the Defaulting Owner shall have an additional period of time (not to exceed ninety (90) days) in which to cure such failure or breach so long as the Defaulting Owner commences good faith activities to cure the failure or breach during the initial 30-day cure period and continues to utilize its Commercially Reasonable Efforts to effect a cure; or

(g)               the Defaulting Party becomes Bankrupt.

12.02   Cure by Non-Defaulting Owner .  If a Defaulting Owner fails to cure an Event of Default, then the Non-Defaulting Owner may, in its sole discretion, attempt to cure the Event of Default, provided that the Defaulting Owner shall reimburse the Non-Defaulting Owner for all costs and expenses incurred by or on behalf of the Non-Defaulting Party pursuant to this Section 12.02 .

12.03   Remedies .

 

(a)        If an Event of Default occurs and is continuing, then the Non-Defaulting Owner shall be entitled to exercise any of it remedies at law or in equity, including recovery from the Defaulting Owner of any damages suffered as a result of the Event of Default, subject to Section 14.08 .  The Non-Defaulting Party shall use Commercially Reasonable Efforts to mitigate any damages suffered as a result of the Event of Default.

(b)        The Owners acknowledge that the obligations and covenants performed by each Owner hereunder are unique and that the Non-Defaulting Owner will be irreparably injured should such obligations and covenants not be consummated in accordance with the terms and conditions of this Agreement.  Consequently, the Non-Defaulting Owner will not have an adequate remedy at law if the other Owner shall fail to perform its obligations and covenants hereunder.  The Non-Defaulting Owner shall have the right, in addition to any other remedy

 


 


 

 


 available under this Agreement, to specific performance of the Defaulting Owner’s obligations and covenants hereunder, and the Owners agree not to take a position in any proceeding arising out of this Agreement to the effect that the Non-Defaulting Party has an adequate remedy at law.

ARTICLE XIII
REPRESENTATIONS AND WARRANTIES

13.01   Representations and Warranties of Idaho Power .  Idaho Power represents and warrants to PacifiCorp as of the Execution Date as follows:

(a)                It is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation.

(b)               It has all requisite corporate power necessary to own its assets and carry on its business as now being conducted or as proposed to be conducted under this Agreement.

(c)                It has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement, and the execution and delivery of this Agreement and the performance by it of this Agreement have been duly authorized by all necessary corporate action on its part.

(d)               The execution and delivery of this Agreement and the performance by it of this Agreement do not: (i) violate its organizational documents; (ii) violate any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default of any material agreement to which it is a party.

(e)                This Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and by principles of equity regardless of whether such principles are considered in a proceeding at law or in equity.

(f)                Except as disclosed in Schedule 13.01(f), all material Governmental Authorizations required by Governmental Requirements to have been obtained by it prior to the date hereof in connection with the due execution and delivery of, and performance by it of its obligations under, this Agreement, have been duly obtained or made and are in full force and effect.

(g)               It is a Qualified Owner.

13.02   Representations and Warranties of PacifiCorp .  PacifiCorp represents and warrants to Idaho Power as of the Execution Date as follows:

(a)        It is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation.

(b)        It has all requisite corporate power necessary to own its assets and carry on its business as now being conducted or as proposed to be conducted under this Agreement.

                                                                             


 


 

 

 

 

(c)        It has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement, and the execution and delivery of this Agreement and the performance by it of this Agreement have been duly authorized by all necessary corporate action on its part.

(d)       The execution and delivery of this Agreement and the performance by it of this Agreement do not: (i) violate its organizational documents; (ii) violate any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default of any material agreement to which it is a party.

(e)        This Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and by principles of equity regardless of whether such principles are considered in a proceeding at law or in equity.

(f)        Except as disclosed in Schedule 13.02(f) , all material Governmental Authorizations required by Governmental Requirements to have been obtained by it prior to the date hereof in connection with the due execution and delivery of, and performance by it of its obligations under, this Agreement, have been duly obtained or made and are in full force and effect.

(g)        It is a Qualified Owner.

ARTICLE XIV
INDEMNIFICATION

14.01   Indemnities .

(a)        Subject to the provisions of Section 14.03 and Section 14.08 , each Owner (the “ Indemnifying Party ”) shall indemnify, defend and hold harmless the other Owner (the “ Indemnified Party ”) and its Representatives, from and against any and all suits, actions, liabilities, legal proceedings, claims, demands, losses, costs and expenses of whatsoever kind or character, including reasonable attorneys’ fees and expenses (collectively, “ Claims ”) of third parties, for injury or death of persons or physical loss of or damage to property of Persons (other than the Indemnified Party and its Representatives) arising from the Indemnifying Party’s (including its Representatives’): (i) gross negligence or willful misconduct in connection with the performance of this Agreement; or (ii) failure to perform a material obligation under this Agreement.

(b)        In addition to and not in limitation of the indemnity provided in Section 14.01(a), but subject to the provisions of Section 14.03 and Section 14.08, each Owner, as Indemnifying Party, shall severally and not jointly, in accordance with its Ownership Interest, indemnify, defend and hold harmless the Operator, as Indemnified Party, and its Representatives from and against any and all third-party Claims for injury or death of persons or physical loss of or damage to property of Persons (other than the Indemnified Party and its Representatives), or fines or penalties levied or imposed by Governmental Authorities, in each case, arising under or in connection with this Agreement, including in connection with the performance by the

 


 


 

 


 Operator of its obligations under this Agreement, except for such Claims or fines arising from the Operator’s or its Representatives’: (i) gross negligence or willful misconduct in connection with the performance of this Agreement or (ii) failure to perform a material obligation under this Agreement.

(c)        Subject to the provisions of Section 14.03 and Section 14.08 , the Operator, as Indemnifying Party, shall indemnify, defend and hold harmless each Owner, as Indemnified Party, and its Representatives from and against any and all Claims for injury or death of persons or physical loss of or damage to property of Persons (including the Indemnified Party and its Representatives), or fines or penalties levied or imposed by Governmental Authorities or Losses incurred by the Indemnified Party and its Representatives, arising from the Operator’s and its Representatives’ (i) gross negligence or willful misconduct in connection with the performance of this Agreement or (ii) failure to perform a material obligation under this Agreement; provided , however , in no event shall the Operator be obligated to indemnify, defend or hold harmless an Owner and its Representatives from and against any such Claims or fines or Losses to the extent arising from such Owner’s or its Representatives’: (i) gross negligence or willful misconduct in connection with the performance of this Agreement; or (ii) failure to perform any material obligation under this Agreement.

14.02   Notice and Participation .

(a)        If an Indemnified Party intends to seek indemnification under this Article XIV with respect to any Claims, the Indemnified Party shall give the Indemnifying Party prompt written notice of such Claims upon the receipt of actual knowledge or information by the Indemnified Party of any possible Claims or of the commencement of such Claims.  The Indemnifying Party shall have no liability under this Article XIV for any Claim for which such notice is not provided, but only to the extent that the failure to give such notice materially impairs the ability of the Indemnifying Party to respond to or to defend the Claim.

(b)        The Indemnifying Party shall have the right to assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided , however , that if the defendants in any such proceeding include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are in conflict with those available to the Indemnifying Party and that such conflict materially prejudices the ability of the counsel selected by the Indemnifying Party to represent both Parties, the Indemnified Party shall have the right to select separate counsel reasonably satisfactory to the Indemnifying Party, at the Indemnifying Party’s expense, to assert such legal defenses and to otherwise participate in the defense of such Claim on behalf of such Indemnified Party, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such separate counsel.

(c)        Should any Indemnified Party be entitled to indemnification under this Article XIV as a result of a Claim by a third party, and should the Indemnifying Party fail to assume the defense of such Claim within a reasonable period of time after the Indemnified Party has provided the Indemnifying Party written notice of such Claim, the Indemnified Party may, at

                                                                             


 


 

 

 

 

the expense of the Indemnifying Party, contest or, with or without the prior consent of the Indemnifying Party, settle such Claim.

(d)       Except to the extent expressly provided herein, no Indemnified Party shall settle any Claim with respect to which it has sought or is entitled to seek indemnification pursuant to this Article XIV unless (i) it has obtained the prior written consent of the Indemnifying Party, or (ii) the Indemnifying Party has failed to assume the defense of such Claim within a reasonable period of time after the Indemnified Party has provided the Indemnifying Party written notice of such Claim.

(e)        Except to the extent expressly provided otherwise herein, no Indemnifying Party shall settle any Claim with respect to which it may be liable to provide indemnification pursuant to this Section without the prior written consent of the Indemnified Party; provided , however , that if the Indemnifying Party has reached a bona fide settlement agreement with the plaintiff(s) in any such proceeding, which settlement includes a full release of the Indemnified Party for any and all liability with respect to such Claim, and the Indemnified Party does not consent to such settlement agreement, then the dollar amount specified in the settlement agreement, plus the Indemnified Party’s reasonable legal fees and other costs related to the defense of the Claim paid or incurred prior to the date of such settlement agreement, shall act as an absolute maximum limit on the indemnification obligation of the Indemnifying Party with respect to the Claim, or portion thereof, that is the subject of such settlement agreement.

14.03   Net Amount .  Subject to the limitation in Section 14.02(e) , if applicable, in the event that an Indemnifying Party is obligated to indemnify and hold any Indemnified Party harmless under this Article XIV , the amount owing to the Indemnified Party shall be the amount of such Indemnified Party’s actual Claims, net of any insurance or other recovery actually received by the Indemnified Party.

14.04   No Release of Insurers .  The provisions of this Article XIV shall not be deemed or construed to release any insurer from its obligation to pay any insurance proceeds in accordance with the terms and conditions of valid and collectible insurance policies.

14.05   Mitigation .  Each Indemnified Party entitled to indemnification hereunder shall take use Commercially Reasonable Efforts to mitigate all Claims after becoming aware of any event which could reasonably be expected to give rise to any Claims that are indemnifiable or recoverable hereunder or in connection herewith.

14.06   Assertion of Claims .  No Claim of any kind shall be asserted against any Owner or the Operator, whether arising out of contract, tort (including negligence), strict liability, or any other cause of or form of action, unless it is filed in a court of competent jurisdiction, or a demand for arbitration is made, within the applicable statute of limitations period for such Claim.

14.07   Survival of Obligation .  The duty to indemnify under this Article XIV shall continue in full force and effect notwithstanding the expiration or termination of this Agreement, with respect to any Claim arising out of an event or condition which occurred or existed prior to such expiration or termination.

                                                                             


 


 

 

 

 

14.08   Limitation on Liability .

(a)        Notwithstanding any provision in this Agreement to the contrary, neither Owner nor the Operator shall be liable under this Agreement in any action at law or in equity, whether based on contract, tort or strict liability or otherwise, for any special, incidental, indirect, exemplary, punitive or consequential damages or losses, including any loss of revenue, income, profits or investment opportunities, loss of the use of equipment, or the cost of temporary equipment or services, provided that any fines or penalties levied or imposed by Governmental Authorities shall not be excluded under this Section 14.08(a) as special, incidental, indirect, exemplary, punitive or consequential damages or losses.

(b)        Notwithstanding any provision in this Agreement to the contrary, neither Owner nor the Operator shall be liable under this Agreement if and to the extent that the Agreement Limiting Liability Among Western Interconnected Systems executed by Idaho Power on August 5, 1985 and by PacifiCorp on August 22, 1973 (the “ WIS Agreement ”) is then in effect between the Parties and expressly limits or precludes such liability.  Nothing in this Agreement shall amend or otherwise affect in any way the terms and conditions of or liability of the Parties under the WIS Agreement.

ARTICLE XV
PROPRIETARY INFORMATION

15.01   Disclosure of Proprietary Information Prohibited .  Any Proprietary Information of a Party (whether in its capacity as Owner or Operator) (the “ Transferor ”) which is disclosed to or otherwise received or obtained by the other Party (whether in its capacity as Owner or Operator) (the “ Transferee ”) incident to this Agreement shall be held in confidence and the Transferee shall not (subject to Sections 15.02 , 15.03 and 15.05 ) publish or otherwise disclose any Proprietary Information of the Transferor to any Person for any reason or purpose whatsoever, or use any Proprietary Information for any purpose other than performance under this Agreement, without the prior written approval of the Transferor, which approval may be granted or withheld by the Transferor in its sole discretion.  Without limiting the generality of the foregoing, each Transferee shall observe at a minimum the same safeguards and precautions with regard to the Transferor’s Proprietary Information which the Transferee observes with respect to its own information of the same or similar kind.

15.02   Disclosure by Representatives .  Each Transferee agrees that it will make available Proprietary Information received from a Transferor to its own representatives only on a need-to-know basis, and that all Persons to whom such Proprietary Information is made available will be made aware of the confidential nature of such Proprietary Information, and will be required to agree to hold such Proprietary Information in confidence in accordance with the terms hereof.

15.03   Permitted Disclosures .  Notwithstanding anything to the contrary contained in this Article XV :

 

(a)                A Transferee may provide any Proprietary Information to any Governmental Authority having jurisdiction over or asserting a right to obtain such information, provided that (i) such Governmental Authority orders that such Proprietary Information be provided, and (ii) unless prohibited from so doing by applicable Governmental Requirements,

 


 


 

 

 


 the Transferee promptly advises the Transferor of any request for such information by such Governmental Authority and cooperates in giving the Transferor an opportunity to present objections, requests for limitation, and/or requests for confidentiality or other restrictions on disclosure or access, to such Governmental Authority.

(b)               A Transferee may, to the extent required, disclose Proprietary Information to any Governmental Authority in connection with the application for any Governmental Authorization; provided that unless prohibited from so doing by applicable Governmental Requirements, the Transferee shall provide the Transferor prior written advance notice of such disclosure and the Proprietary Information that is to be disclosed.

(c)                A Transferee may disclose such Proprietary Information regarding the existence and terms of this Agreement as such Transferee deems necessary to enable it to comply with the Securities Exchange Act of 1934, or the rules, regulations and forms of the Securities and Exchange Commission, issued thereunder or the applicable rules of any stock exchange, or as otherwise required by applicable Governmental Requirements.

15.04   Injunctive Relief .  In the event of a breach or threatened breach of the provisions of this Article XV by any Transferee, the Transferor shall be entitled to an injunction restraining the Transferee from such breach or threatened breach.  Nothing contained herein shall be construed as prohibiting the Transferor from pursuing any other remedies available at law or equity for such breach or threatened breach of this Agreement.

15.05   Publicity .  Any public relations matters, including public announcements and press releases or similar publicity, arising out of or in connection with the terms of this Agreement or the transactions contemplated herein, shall be coordinated and agreed to between the Owners prior to said announcement or release.

15.06   Proprietary Information Defined .  For purposes of this Agreement, “ Proprietary Information ” means all information, written or oral, which has been or is disclosed by the Transferor, or by any Representative of the Transferor, or which otherwise becomes known to the Transferee, or to any Representative of such Transferee, or any other party in a confidential relationship with, the Transferee, and which (a) relates to matters such as patents, trade secrets, research and development activities, draft or final contracts or other business arrangements, books and records, budgets, cost estimates, pro forma calculations, engineering work product, environmental compliance, vendor lists, suppliers, manufacturing processes, energy consumption, pricing information, private processes, and other similar information, as they may exist from time to time, (b) relates to the existence or the terms, including pricing and other commercial terms, of this Agreement, or (c) the Transferor expressly designates in writing to be confidential, provided that “ Proprietary Information ” shall exclude information falling into any of the following categories:

(i)         Information that, at the time of disclosure hereunder, is in the public domain, other than information that entered the public domain by breach of this Agreement by Transferee;

 

                                                                             


 


 

 

 

 

(ii)        Information that, after disclosure hereunder, enters the public domain, other than information that enters the public domain by breach of this Agreement by Transferee;

(iii)       Information, other than that obtained from third-parties, that prior to disclosure hereunder, was already in Transferee’s possession, either without limitation on disclosure to others or subsequently becoming free of such limitation;

(iv)       Information obtained by Transferee from a third-party having an independent right to disclose the information; or

(v)        Information that is available through independent research without use of or access to the Proprietary Information.

15.07   Survival .  The provisions of this Article XV shall continue in full force and effect during the Term and for a period of two (2) years thereafter, notwithstanding the expiration or termination of this Agreement, with respect to any Proprietary Information obtained by any Transferee prior to such expiration or termination.

ARTICLE XVI
RELIABILITY

16.01   Reliability .  The Operator shall be responsible for compliance with all Reliability Standards applicable to the Owners and the Operator with respect to the Transmission Facilities.

ARTICLE XVII
TAXES

17.01   No Partnership .  Nothing in this Agreement shall be deemed to create or constitute a partnership, joint venture or association among the Owners or any of them, the sole purpose of this Agreement being limited to (a) the allocation of the Ownership Interests (and Capacity Share) in the Transmission Facilities and (b) provision for (i) the orderly and efficient construction, repair, modification, rehabilitation, operation and maintenance of the Owners’ respective separate undivided Ownership Interests in the Transmission Facilities, and (ii) the interconnection of the Owners’ respective Transmission Systems.  Each Owner agrees and covenants that it shall not take or omit to take any action or reporting position with any Governmental Authority contrary to this Section 17.01 .

17.02   761 Election .  The Owners intend that, as tenants in common and owners of undivided Ownership Interests, for United States income tax purposes the Owners shall elect in accordance with the provisions of section 761 of the Internal Revenue Code of 1986, as amended (“ Code ”), and the applicable income tax regulations thereunder (“ Regulations ”), to be excluded from all of the provisions of Subchapter K of the Code upon the first occasion in which such election may be filed under these Regulations and that, if such election is not filed, this Agreement shall constitute an election under Regulations section 1.761-2(b)(2)(ii) to be excluded from all of the provisions of Subchapter K of the Code and the applicable Regulations, beginning

                                                                             


 


 

 

 

 

with the first year of the creation of the tenancy in common as contemplated by this Agreement and that no Owner shall object to any such election.

17.03   Responsibility for Taxes .  It is the intent of the Owners that so far as possible, each Owner shall separately report, promptly and timely file returns with respect to, be responsible for and pay all property, income, franchise, business, or other taxes or fees (“ Taxes ”), arising out of its Ownership Interests and the matters contemplated by this Agreement, that such Taxes shall be separately levied and assessed against each Owner severally and that each Owner shall be solely responsible for and shall pay all such Taxes so levied and assessed against it without any responsibility of the other Owner with respect thereto and without the amounts thereof being paid and apportioned between the Owners under this Agreement.  To the extent that Taxes (such as property, payroll, sales and use Taxes) may be levied or assessed against the Transmission Facilities, their operation or the Owners in such a manner as to make impossible the carrying out of the foregoing provisions of this Section 17.03 , the Operator shall report, file returns with respect to and pay such Taxes and each other Owner shall immediately reimburse the Operator for each such Owner’s Ownership Interest percentage of such Taxes.  The Operator shall not have any obligation to contest or to seek refund of such Taxes; provided , however , that the Operator may, by its personnel or counsel of its selection, pursue such administrative or court proceedings as the Operator may determine.  Each Owner shall on request pay to the Operator such Owner’s Ownership Interest percentage of the costs of such proceedings and shall share in any savings resulting from such proceedings in the same proportion.  Each Owner agrees to cooperate with the other Owner with respect to reasonable requests for information or other matters with respect to Taxes.

17.04   Indemnification .  Each Owner (the “ Tax Indemnifying Party ”) shall indemnify and hold harmless the other Owner (the “ Tax Indemnitee Party ”), on an after-tax basis, from and against any Taxes (including any interest or penalties) imposed on such Tax Indemnitee Party or the Transmission Facilities or any part thereof, to the extent such Taxes are the responsibility of the Tax Indemnifying Party pursuant to this Article XVII .

17.05   Determination of Depreciation and Other Matters .  Each Owner shall determine the basis and method it will use for purposes of depreciation and other matters where investment of the Transmission Facilities is relevant.

ARTICLE XVIII
DISPUTES

18.01   Exclusive Procedure .  Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, interpretation, termination, performance or validity of this Agreement (each, a “ Dispute ”) shall be resolved pursuant to the procedures of this Article XVIII .

18.02   Dispute Notices .    If a Dispute arises between the Owners or between the Operator and one or both of the Owners, then any Party to such Dispute (each, a “ Disputing Party ”) may provide written notice thereof to the other Disputing Party or Disputing Parties, including a detailed description of the subject matter of the Dispute (the “ Dispute Notice ”).  Any Disputing Party may seek a preliminary injunction or other provisional judicial remedy if such action is necessary to prevent irreparable harm or preserve the status quo, in which case the Disputing


 



Parties nonetheless will continue to pursue resolution of the Dispute pursuant to this Article XVIII .

18.03   Informal Dispute Resolution .

(a)        The Disputing Parties shall make a good faith effort to resolve the Dispute by prompt negotiations between and/or among each Disputing Party’s representative so designated in writing to the other Disputing Party or Disputing Parties (each a “ Manager ”).  If the Managers are not able to resolve the Dispute within thirty (30) days after the date of the Dispute Notice, they shall refer the matter to the designated senior officers of their respective companies (the “ Executive(s) ”), who shall have authority to settle the Dispute.  If the Executives are not able to resolve the Dispute within sixty (60) days after the date of the Dispute Notice, then the Dispute shall be resolved pursuant to Section 18.04 .

(b)        All communications and writings exchanged between and/or among the Disputing Parties in connection with these negotiations shall be confidential and shall not be used or referred to in any subsequent binding adjudicatory process between and/or among the Disputing Parties, either with respect to the current Dispute or any future Dispute between and/or among the Owners and/or the Operator.

18.04   Submission of Dispute to FERC or Approved Courts .  If a Dispute cannot be settled amicably between the Disputing Parties pursuant to Section 18.03 , then any Disputing Party may, in its sole discretion, within one (1) year after the conclusion of the time period for informal dispute resolution specified in Section 18.03 , submit such Dispute (a) to FERC or (b) to the jurisdiction of the state courts situated in Idaho or the United States District Court for the District of Idaho (the “ Approved Courts ”).  Each of Idaho Power and PacifiCorp, in its capacity as an Owner and as the Operator, consents to and accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the Approved Courts and appellate courts from any appeal thereof, and irrevocably waives any objection which it may now or hereafter have to the jurisdiction of the Approved Courts.  Each of Idaho Power and PacifiCorp, in its capacity as an Owner and as the Operator, further irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, proceeding or other action brought pursuant to this Article XVIII in any of the Approved Courts, and irrevocably waives, to the fullest extent permitted by law, and agrees not to plead or claim in any such Approved Court that any suit, proceeding or other action brought therein has been brought in an inconvenient forum.

18.05   Continued Performance.  During the pendency of any Dispute, each Owner and the Operator shall continue to perform all of its respective obligations under this Agreement.

ARTICLE XIX
ASSIGNMENT

19.01   Prohibited Transfers and Assignments .

  Neither PacifiCorp nor Idaho Power shall have the right to transfer, assign or otherwise dispose of, in whole or in part, its interest in this Agreement, including its rights, duties and obligations hereunder, nor to transfer, assign or

                                                                             


 


 

 

 

 

otherwise dispose of, in whole or in part, its Ownership Interest (or Capacity Share) in the Transmission Facilities, except as permitted under this Article XIX .

19.02   Permitted Assignments and Transfers .  The restrictions set forth in Section 19.01 shall not restrict:

(a)        dispositions and sales by the Operator incident to renewals or replacements of the Transmission Facilities;

(b)        the right of an Owner to subject any of its Ownership Interest (and Capacity Share) to the lien of any mortgage upon all or a portion of its own physical electric utility property or to otherwise collaterally assign its rights and obligations in this Agreement to a lender or other person providing financing to the Owner;

(c)        the right of an Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of such transfer, in the case of PacifiCorp, all of its rights and obligations in this Agreement as the Operator) in connection with any sale, merger or other transfer of substantially all of such Owner’s electric transmission facilities as an operating entity; provided , however , that the effectiveness of such assignment shall be conditioned upon the assignee (i) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the assigning Owner as of the assignment date and (ii) qualifying as a Qualified Owner on the assignment date;

(d)       the right of an Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of transfer, in the case of PacifiCorp, all of its rights and obligations in this Agreement as the Operator) to an Affiliate of the Owner which owns all or substantially all of the transmission facilities of such Owner; provided , however , that the effectiveness of such assignment shall be conditioned upon the assignee (i) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the assigning Owner as of the assignment date and (ii) qualifying as a Qualified Owner on the assignment date;

 

(e)        the right of any Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of such transfer, in the case of PacifiCorp, all of its rights and obligations in this Agreement as the Operator) to a third party; provided that:  (i) the other Owner, in its sole discretion, approves such transfer and approves the third-party purchaser as having demonstrated that it is financially and technically capable of performing the transferring Owner’s (and, in the case where PacifiCorp is the transferring Owner, Operator’s) obligations under this Agreement, and (ii) the other Owner is offered the right of first refusal to purchase such Ownership Interest (and Capacity Share) and all of the transferring Owner’s rights and obligations in this Agreement (including as part of such transfer, in the case where PacifiCorp is the transferring Owner, all of its rights and obligations in this Agreement as the Operator), on terms no less favorable than those offered to such proposed third-party purchaser; provided , however , that the effectiveness of such assignment shall be conditioned upon the third-party purchaser (A) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the assigning Owner (including as part of such transfer, in the case of PacifiCorp,

                                                                             


 


 

 


 all of its rights and obligations in this Agreement as the Operator) as of the assignment date and (B) qualifying as a Qualified Owner on the assignment date; and

(f)        the right of an Owner to schedule and provide transmission service (in the amount of its Capacity Share) over the Transmission Facilities under the Owner’s OATT and to schedule and transmit an amount of energy commensurate with the Owner’s Capacity Share over the Transmission Facilities on its own behalf or on behalf of the Owner’s transmission customers; provided , however , that at no time shall an Owner be entitled to post, sell, schedule or transmit transmission service or an amount of energy over the Transmission Facilities greater than its Capacity Share, unless otherwise mutually agreed to in writing in advance by the other Owner.

ARTICLE XX
MISCELLANEOUS

20.01   Notices .

(a)        Any notice, demand, request or other communication required or permitted to be given pursuant to this Agreement shall be in writing and signed by the Owner or Operator giving such notice, demand, request or other communication and shall be hand delivered or sent by certified mail, return receipt requested, or overnight courier to the other Owner and/or Operator at the address set forth below:

If to Idaho Power:

Idaho Power Company

 

1221 West Idaho Street

 

Boise, ID 83702

 

Attn:  Manager, Grid Operations

 

Telephone:  208-388-5669

 

 

With a copy to:

Idaho Power Company

 

1221 West Idaho Street

 

Boise, ID  83702

 

Attn:  Legal Department

 

Telephone:  208-388-2300

 

 

If to PacifiCorp:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:    Director, Transmission Service

 

Telephone:  503-813-6712

 

 

 

 

                                                                             


 


With a copy to:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:  Legal Department

 

Telephone:  503-813-5854

 

 

If to Operator:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:    Director, Transmission Service

 

Telephone:  503-813-6712

 

 

With a copy to:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:  Legal Department

 

Telephone:  503-813-5854

 

(b)        Each Owner and the Operator shall have the right to change the place to which any notice, demand, request or other communication shall be sent or delivered by similar notice sent in like manner to the other Owner(s) and the Operator.  The effective date of any notice, demand, request or other communication issued pursuant to this Agreement shall be when:  (i) delivered to the address of the Owner or Operator personally, by messenger, by a nationally or internationally recognized overnight delivery service or otherwise; or (ii) received or rejected by the Owner or Operator, if sent by certified mail, return receipt requested, in each case, addressed to the Owner or Operator at its address and marked to the attention of the person designated above (or to such other address or person as an Owner or Operator may designate by notice to the Owners and/or Operator effective as of the date of receipt by such Owners and/or Operator).

20.02   Entire Agreement .  This Agreement and the Exhibits attached hereto, and the other documents between the Owners referenced herein constitute the entire agreement between the Owners and the Operator and supersede all prior agreements and understandings, whether oral and written, between the Owners and the Operator with respect to the subject matter hereof.  There are no oral understandings, terms or conditions and neither Owner nor the Operator has relied upon any representation or warranty, expressed or implied, not contained in this Agreement.

20.03   Parties Bound .  This Agreement shall be binding upon each of the Owners and the Operator and their respective successors and permitted assigns.

 


 


 

 

 

 

20.04   Amendments .

(a)        Except as otherwise provided in Section 20.04(c) , this Agreement may not be amended, supplemented or otherwise modified, other than pursuant to an instrument in writing executed by the Owners.

(b)        Absent agreement of both Parties to the proposed change and except as otherwise provided in Section 20.04(c) , the standard of review for changes to this Agreement proposed by a Party, or FERC acting sua sponte , shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956); provided that the standard of review for any modification to this Agreement requested by non-contracting third parties shall be the most stringent standard permissible under then-applicable law.

(c)        Nothing contained in this Agreement shall be construed as affecting in any way the right of either Party to unilaterally make application to FERC under Section 205 or Section 206 of the Federal Power Act for a change in the charges set forth in Exhibit F .  It is the intent of the Parties that the standard of review that FERC will apply to any such unilateral application shall be the just and reasonable standard of review rather than the “public interest” standard of review.

20.05   Waivers .  No waiver by any Owner or the Operator of any one or more defaults by any other Owner or the Operator in the performance of any of the provisions of this Agreement shall be construed as a waiver of any other default or defaults whether of a like kind or different nature.  Any delay, less than any applicable statutory period of limitations, in asserting or enforcing any rights under this Agreement shall not be deemed a waiver of such rights.  Failure of any Owner or the Operator to enforce any provisions hereof shall not be construed to waive such provision, or to affect the validity of this Agreement or any part thereof, or the right of any Owner thereafter to enforce each and every provision thereof.

20.06   Choice of Law .  This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho, without giving effect to conflicts of laws principles.

20.07   Headings .  Article and Section headings used in this Agreement (including headings used in any Exhibits attached hereto) are for convenience of reference only and shall not affect the construction of this Agreement.

20.08   Relationship of Parties .  The covenants, obligations, and liabilities of the Owners are intended to be several and not joint or collective, and nothing herein contained shall ever be construed to create an association, joint venture, trust or partnership, or to impose a trust or partnership covenant, obligation or liability on or with regard to any of the Owners.  Each Owner shall be individually responsible for its own covenant, obligations and liability as herein provided.  No Owner shall be under the control of, or shall be deemed to control, the other Owner.  Neither Owner shall have a right nor power to bind the other Owner without its express written consent.

 

 


 


 

 

 

 

20.09   Severability .  In the event that any provision of this Agreement or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the Owners and the Operator.  The Owners and the Operator further agree to replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such illegal, void or unenforceable provision.

20.10   No Third Party Beneficiaries .  Nothing express or implied in this Agreement is intended to nor shall be construed to confer upon or give to any Person (other than the Owners and the Operator) any rights or remedies under or by reason of this Agreement or any transaction contemplated herein.

20.11   Further Assurances .  Each Owner and the Operator agrees to execute and deliver from time to time such additional documents, and take such additional actions, as may be reasonably required by the other Owner or the Operator to give effect to the purposes and intent hereof.

20.12   Conflict of Interest .  Nothing in this Agreement shall prohibit any Owner or the Operator from engaging in or possessing any interest in other projects or business ventures of any nature and description, independently or with others.

20.13   Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be original, and all of which together shall constitute one agreement.  Electronic transmission of any signed original document, and retransmission of any signed electronic transmission, shall be the same as delivery of an original.  At the request of either Owner or the Operator, the other Owner or the Operator, as applicable, will confirm electronically transmitted signatures by signing an original document.

[SIGNATURE PAGE FOLLOWS]

 

                                                                             


 


 

 

 

 

IN WITNESS WHEREOF, each of the Owners has caused its duly authorized representative to execute this Populus Joint Ownership and Operating Agreement as of the date first above written.

 

PACIFICORP:

PACIFICORP,

 

AS OWNER AND OPERATOR

 

 

 

By:  _____________________________

 

Name:______________________________

 

Title:_______________________________

 

 

IDAHO POWER:

IDAHO POWER COMPANY,

 

AS OWNER

 

 

 

By:  _____________________________

 

Name:______________________________

 

Title:_______________________________

 

 

 


 


 

 

 

 

EXHIBIT A

 

Description of Transmission Facilities and Common Facilities

 

Section I.  Description of Transmission Facilities. 2

 

The Transmission Facilities includes all above ground 345kV structures, bus, breakers, capacitors, associated equipment and foundations as listed below and as shown on the one line drawing attached as Exhibit G which shows the extent of the jointly owned Transmission Facilities at the Populus Substation.  The major equipment included in the Transmission Facilities consist of sixteen 345 kV breakers, thirty-five air breaks, two line reactors, two series capacitor banks, one shunt capacitor bank and eleven coupling capacitor voltage transformers (CCVT), including all components associated with connection of the Bridger-Populus Transmission Lines (#s 1 and 2), the Populus–Borah Transmission Lines (#s 1 and 2), the Populus–Ben Lomond Transmission Lines (#s 1, 2 and 3) and the Populus–Kinport Transmission Line.

 

Transmission Line

Item

Description

Qnty

Dead End

Mono pole steel

10

Tangent

Mono pole steel

35

Dead End

Three pole steel

10

 

 

 

Substation

Item

Description

Qnty

345 kV breaker

362kV, 3000A, 50kA, Gas Filled, w/Pre-insertion Resistors 13

 

 

322, 327, 328, 342, 343, 346, 347, 348, 362, 363, 366, 367, 368

 

 

 

 

345 kV breaker

362kV, 2000A, 50kA, Gas Filled, for shunt reactor

2

 

R393, R392

 

 

 

 

345 kV breaker

362kV, 3000A, 50kA, Gas Filled, for Capacitor Bank

1

 

C329

 

 

 

 

345 kV switch

362kV, 3000A, Vertical Break, W/Ground Switch (Line)

8

 

 

 

345 kV Switch

362kV, 3000A, Vertical Break (Breaker Isolation)

20

 

 

 

345 kV Switch

362kV, 2000A, Vertical Break (Capacitor & Reactor)

3

                                               

2 For asset accounting purposes, Idaho Power may request unit of property breakdown information with greater detail than shown in this Exhibit A at the conclusion of construction.  PacifiCorp will make reasonable and timely accommodation to such a request, not to exceed the level of detail produced for its own internal asset accounting purposes.

 

 

 

                                                                             


 


 

 

 

 

 

345 kV Switch

362kV, 3000A, Vertical Break, W/Ground Switch

4

 

382G, 352G, 383G, 353G

 

 

 

 

345 kV CCVT

1550KV BIL, 1800/3000:1, No Carrier Accessories

6

 

 

 

345 kV CCVT

1550KV BIL, 1800/3000:1, With Carrier Accessories

5

 

 

 

345 kV CT/VT

CT/VT Metering Units, 345kV

15

 

 

 

345 kV Capacitor

 

 

 

Bank

362kV, 220/F275 MVar

1

 

 

 

345 kV Series

 

 

 

Capacitor

347-262 kV, 1550 kV BIL

2

 

 

 

345 kV Reactors

362kV, 100MVA

2

 

 

 

Insulator

Station Post, 345kV

738

 

 

 

Insulator

Suspension, 345kV

48

 

 

 

Bus

Rigid and Wire Bus, Assemblies, and Connectors

1

 

 

 

Bus

Rigid & Wire Bus, Ass. & Connectors – 345kV Series Capacitor

2

 

 

 

Security

Security System, Conduit Installation

1

 

 

 

Communications

Power Line Carrier, With All Additional Equipment

5

 

 

 

Line Traps

345kV, 3000A

5

 

 

 

Lightning Arresters

345 kV, 212kV MCOV

24

 

 

 

Oil Containment

System and Foundation

1

 

 

 

Foundations

Concrete - Drilled Piers

5685 Yds

 

 

 

Steel

Structural Steel Supports

2374881 lbs.

 

 

 

 


 


Section II. Description of Common Facilities

Description

Contract Quantity

Unit Of Measure

Fencing & Gates

 

 

Substation Fencing Furnish and Install (Including Signage)

9310

LF

Substation Gates Furnish and Install (Including Signage)

3

EA

Property Boundary Gates, Cattle Guards, etc. Furnish and Install

1

LS

Substation Fencing Furnish and Install for 345kV Series Capacitors (Including Signage)

inc. SE.1

LF

Reinforced Concrete

 

 

Concrete – Slab on Grade

1075

CY

Concrete - Pad and Pedestal

 

CY

Concrete - Control House

 

CY

Concrete - Miscellaneous (Station Service, Bollards, Security, Etc.)

 

CY

Cable Trench

 

 

Cable Trench w/covers

8332

LF

Cable Trench w/covers Drivable

1096

LF

Conduit and Power & Control Cables

 

 

Conduit, Below and Above Grade

1

LS

Power Cable

1

LS

Control Cable

1

LS

Grounding

 

 

Below Grade Grounding

92737

LF

Above Grade Grounding

22089

LF

Protection & Controls, SCADA & Communications

 

 

Control, Relay and Annunciator Panels

37

EA

Relay Communications Equipment; i.e. SEL 2030, Teltone Modem

1

LOT

Revenue Metering Panels

8

EA

RTU and Interposition Panel

1

EA

DFR (i.e. Ametek TR-2000 - 32 Channel with Ethernet Connection)

 

EA

SER (i.e. Hathaway 4100 - 256 Points)

 

EA

Yard Termination Cabinets

6

EA

Control House

 

 

Control House, 28’ x 80’

1

LS

Battery System 125 Vdc, Complete With Rack And Charger, Purchase and Installation

1

LS

Battery System 48 Vdc, Complete With Rack And Charger, Purchase and Installation

1

LS

Station Service

 

 

Install Station Service

1

LS

Install Standby Generator

1

LS

 

 


 

Automatic Transfer Switch

1

LS

Install Distribution Service to Substation Boundary

1

LS

240 VAC, 50A Disconnect Switches, Three Phase System

1

LS

Fiber Optics – Installation

 

 

String / Sag /  ADSS Cable - Overhead including all hardware

0

LF

Fusion Splice / Enclosure, ADSS To OPGW, Including slack storage and hardware

inc. in SP.3

EA

ADSS U/G Cable in Place (with innerduct and conduit or in cable trench, including building entry); Furnish and Install

1900

EA

Quazite Storage Vault / Storage Only

1

EA

Patch Panel/Termination w/ Fusion Splicing, 48 Fibers

1

EA

Cable In Place in Building, including innerduct

100

LF

Fiber Node Equipment, with rack, power, and grounding

1

EA

Channel Bank and associated Equipment, with rack, power, and grounding

1

EA

 

 

 

 

 

                                                                             


 


 

 

 

 

EXHIBIT B

 

[Intentionally omitted.]

 

                                                                             


 


 

 

 

 

EXHIBIT C

 

Ownership Interests

 

Owner

Ownership Interest

 

PacifiCorp

78.2%

Idaho Power

 

20.8%

 

Each Owner’s percentage Ownership Interest in the Transmission Facilities shall be determined based on the average of the percentage of Transmission Line Capacity of each 345 kV transmission line or transformer that has a connection to the Transmission Facilities at the Populus Substation that such Owner owns or controls.  For purposes of this Exhibit C , “ Transmission Line Capacity ” means, in respect of each 345 kV transmission line or transformer that has a connection to the Transmission Facilities at the Populus Substation, the total amount of rated transmission capacity of such transmission line or transformer, provided that the Owners agree that (i) neither the Transmission Line Capacity nor either Owner’s Ownership Interest shall change as a result of a temporary or permanent change in the rated transmission capacity of any such transmission lines or transformers that are connected to the Transmission Facilities at the Populus Substation on or before December 31, 2010 and (ii) the Transmission Line Capacity and the Owners’ Ownership Interests shall only change, if at all, when an additional 345 kV transmission line or transformer is interconnected to the Populus Substation after December 31, 2010.

 

                                                                             


 


 

 

 

 

EXHIBIT D

[Intentionally omitted.]

 

 


 


 

 

 

 

EXHIBIT E

 

Construction Budget

 

$24,623,483.41

 


 


 

 

 

 

EXHIBIT F

 

Monthly Transmission Facilities O& M Charge and
Monthly Common Facilities Charge

 

The Monthly Transmission Facilities O&M Charge each month during the Term shall be equal to the product of (1) the Installed Cost of the Transmission Facilities, (2) Idaho Power’s Ownership Interest, and (3) the O&M Expense Factor.

For purposes of this Exhibit F :

 

(i)         “ Installed Cost of the Transmission Facilities ” means the original and actual aggregate Cost of the Transmission Facilities incurred by or on behalf of PacifiCorp as of the date construction of the Transmission Facilities is completed pursuant to Article III , trued-up to final Cost after all work orders for the construction of the Transmission Facilities are closed to account; and

 

(ii)        the “ O&M Expense Factor ” means 0.1845% per month.

 

The Monthly Common Facilities Charge each month during the Term shall be equal to the product of (1) the Installed Cost of the Common Facilities, (2) Idaho Power’s Ownership Interest, and (3) the Common Facilities Factor.

For purposes of this Exhibit F :

 

(i)         “ Installed Cost of the Common Facilities ” means the original and actual aggregate Cost of the Common Facilities incurred by or on behalf of PacifiCorp as of the date construction of the Transmission Facilities is completed pursuant to Article III , trued-up to final Cost after all work orders for the construction of the Common Facilities are closed to account; and

 

(ii)        the “ Common Facilities Factor ” means 1.022% per month.

 

 


 


 

 

 

 

EXHIBIT G

 

Point of Interconnection

 

[See Attached]

 

 

 

 


 


 

 

 

 

EXHIBIT H

 

Milestones

 

 

Milestone

Milestone Date

Filing of this Agreement at FERC for approval

5 Business Days after the Execution Date

345 kV yard energized

October 1, 2010

 

 


 


 

 

 

 

SCHEDULE 13.01(f)

 

Idaho Power’s Outstanding Governmental Authorizations

 

 


 


 

 

 

 

 

SCHEDULE 13.02(f)

 

PacifiCorp’s Outstanding Governmental Authorizations

 

 

 

 

 

 


 


 

 

 

 

Exhibit I

Form of Hemingway Easement Agreement

 

Recorded at the request of and

When recorded mail to:

 

Gil Green

Idaho Power Company

P. O. Box 70

Boise, Idaho 83707

EASEMENT AGREEMENT

 

FOR VALUE RECEIVED THIS EASEMENT AGREEMENT (“Easement”), MADE this ____ day of ______, 2010 by and between IDAHO POWER COMPANY, an Idaho Corporation, its successors and assigns (hereinafter called “Grantor”), and PACIFICORP, an Oregon corporation its successors and assigns (hereinafter called “ Grantee”) and

The Grantor does hereby grant and convey to the Grantee an easement for the nonexclusive right to use and access the Grantor’s property set forth in the description attached hereto as Exhibit A (the “Transmission Facilities Site”).

 

The property easement will be utilized by the Grantee and its agents, employees or contractors for the use of, and rights of ingress, egress and access to, the Transmission Facilities Site to permit the Grantee and its designees to exercise Grantee’s rights, duties, and privileges as described in the Hemingway Joint Ownership and Operating Agreement dated May 3, 2010, entered into by the Grantee and Grantor (“JOOA”).  The rights of the Grantee and its agents, employees or contractors for use of, ingress, egress and access to the Transmission Facilities Site shall be governed by Section 5.06(a) of the JOOA, during the period the JOOA is in effect, including during any period after the JOOA has been terminated but the surviving provisions identified in Section 2.05(b) (including Section 5.06(a)) remain in effect.  If the JOOA terminates or expires, the property easement will be utilized by the Grantee, and its agents, employees or contractors for the right of ingress, egress and access to the Transmission Facilities Site, for the inspection, construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement, and decommissioning of the Transmission Facilities, provided that Grantor and Grantee agree to reasonably cooperate with respect to such matters.  In the exercise of such easement rights, Grantee shall cause:  (i) the Grantees and its designees, as long as the JOOA has not expired or been terminated, not to interfere with the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities or any portion thereof by the Operator under the JOOA or to pose a safety hazard; (ii) the Grantee and its designees to comply with any requirements of any rights-of-ways, license, easement or other real property interest agreement applicable to the Transmission Facilities, which are in effect as of the date hereof and any other requirements set forth in agreements arising after the date hereof with respect to which Grantee receives written notice; (iii) the Grantee to provide reasonable prior written notice to the Grantor of its intent to exercise any right or privilege granted by this Easement; and (iv) the Grantee

 


 


 

 

 


 and its designees exercising any right or privilege under this Easement to comply with the Grantor’s or any other contractor’s safety and operational procedures and security rules, provided that such procedures and rules are in writing and are delivered to Grantee in advance.

The Grantor does hereby grant and convey to the Grantee an easement for the nonexclusive right for the location of equipment in which the Grantee has an ownership interest, including the equipment described in Exhibit B hereto, together with any replacements, capital upgrades or improvements thereto (hereinafter “Equipment”), on the Transmission Facilities Site, to be utilized by the Grantee to locate Equipment on such premises, together with an easement to access said Equipment over and across the Transmission Facilities Site.  Any replacements, capital upgrades or improvements to the Equipment shall be made in accordance with the provisions of the JOOA prior to its expiration or termination.

Capitalized terms used in this access easement agreement but not otherwise defined herein, shall have the meanings given such terms in the JOOA.

Any notice required or permitted under this Easement shall be provided in accordance with the notice provisions of Section 20.01 of the JOOA.

The rights granted herein shall terminate if the Grantee no longer needs the easements for uses described herein and so notifies Grantor in writing.

 

GRANTOR: IDAHO POWER COMPANY

GRANTEE: PACIFICORP

___________________________________

_________________________________

___________________________________

_________________________________

By:

By:

___________________________________

_________________________________

Its:

Its:      

 

 

 

 

 

 

 

 

                                                                               


 


 

 

 

 

STATE OF _________   )

COUNTY OF _______   )

 

On this                         day of                                                 , 2010, before me, a Notary Public, personally appeared ______________________________ , _______________________________________ of Idaho Power Company, that executed the within instrument, and acknowledged to me that such corporation executed the same as the free act and deed of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

(NOTARY SEAL)

 

 

 

 

Notary Public

 

 

 

Residing at:

 

 

 

My Commission expires:

 

 

 

[ADDITIONAL NOTARY ON FOLLOWING PAGE]

 

                                                                               


 


 

 

 

 

STATE OF _________   )

COUNTY OF _______   )

 

On this                         day of                                                 , 2010, before me, a Notary Public, personally appeared ______________________________ , _______________________________________ of PacifiCorp, that executed the within instrument, and acknowledged to me that such corporation executed the same as the free act and deed of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

(NOTARY SEAL)

 

 

 

 

Notary Public

 

 

 

Residing at:

 

 

 

My Commission expires:

 

 

                                                                               


 


 

 

 

 

 

EXHIBIT A

Description of the Transmission Facilities Site

A parcel of land located in the S 1/2 of the NW 1/4 and the N 1/2 of the SW 1/4 and the S 1/2 of the NE 1/4 of Section 11, T. 1S., R. 3W., B.M., Owyhee County, Idaho, more particularly described as follows:  Commencing at an aluminum cap marking the East 1/4 corner of said Section 11, from which a 5/8” iron pin marking the Northeast corner of said section bears North 00°51’35” East, 2634.17 feet;  Thence along the mid-section line North 89°13’35” West, 96.79 feet to a point lying on the Westerly right-of-way of State Highway 78 and the REAL POINT OF BEGINNING.

Thence continuing along said mid-section line North 89°13’35” West, 2575.51 feet to the Center 1/4 of Section11;

Thence along the East line of the Northeast 1/4 of the Southwest 1/4 of said Section 11 South 00°59’54” West, 1,317.77 feet to the Center-South 1/16 corner of said Section 11;

Thence along the South line of the said North 1/2 of the Southwest 1/4 of Section 11 North 89°14’11” West, 1,993.10 feet;

Thence North 25°53’47” West, 203.54 feet;

Thence North 25°46’49” East, 2,543.71 feet;

Thence South 64°13’11” East, 1,984.81 feet;

Thence South 89°13’35” East, 1,723.88 feet to the intersection with the said westerly right-of-way of State Highway 78;

Thence along said westerly right-of-way South 10°44’30” East, 336.78 feet to the REAL POINT OF BEGINNING.

And also:

A parcel of land being the Northwest Quarter of the Southeast Quarter of Section 11 Township 1 South, Range 3 West, Boise Meridian, Owyhee County, Idaho, more particularly described as follows:

Beginning at the Northwest corner of said Northwest Quarter of the Southeast Quarter, (Center ¼ corner), said corner monumented with a 5/8 inch diameter iron pin; thence South 89°13’27” East, a distance of 1336.21 feet along the Northerly boundary of said Northwest Quarter of the Southeast Quarter to the Northeast corner of said Northwest Quarter of the Southeast Quarter, said corner monumented with a 1½ inch diameter aluminum disk; thence

 

                                                                               


 


 

 

 

 

South 00°56’01” West, a distance of 1317.48 feet along the Easterly boundary of said Northwest Quarter of the Southeast Quarter to the Southeast corner of said Northwest Quarter of the Southeast Quarter, said corner monumented with a 3-inch diameter B.L.M. aluminum disk: thence

North 89°14’16” West, a distance of 1337.76 feet along the Southerly boundary of said Northwest Quarter of the Southeast Quarter to the Southwest corner of said Northwest Quarter of the Southeast Quarter, said corner monumented with a 3-inch diameter B.L.M. aluminum disk; thence

North 01°00’02” East, a distance of 1317.80 feet along the Westerly boundary of said Northwest Quarter of the Southeast Quarter to the POINT OF BEGINNING

                                                                               


 


 

 

 

 

EXHIBIT B

Description of Equipment

The Equipment will include all of the equipment and facilities described below in this Exhibit B which is installed at the Transmission Facilities Site as of the date of this deed.

The Equipment includes all above ground 500kV structures, bus, and equipment and associated foundations starting at the 230kV side of the transformer high-side air break, 501H, to the extents of the station yard where the Midpoint Station (MPSN) 1 and Summer Lake (SMLK) line terminals depart to the tap line segments.  The major equipment included in the Equipment consists of six 500kV breakers and one spare 500kV breaker (stored on location),  seventeen 500kV air breaks, one SMLK line reactor bank (three 1-phase units), and one shunt capacitor bank and associated barrier fence attached to bus #2.  Also included in the Equipment are 13 control, protection and line carrier panels, 3 intertie cabinets and their associated control cables from the panels to the yard equipment.  The Equipment also includes all components associated with both tap segments for the MPSN 1 and SMLK line terminals extending and connecting to the existing MPSN—SMLK line.

STATION

 

 

 

 

QTY

Equipment Description

Item

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 2000Amp

206

1

Power Circuit Breaker, 550kV 2000Amp

204

1

Power Circuit Breaker, 550kV 2000Amp

204

10

Local Equipment Annunciator Units for Reactors and Breakers

 

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

 

                                                                               


 


1

Shunt Capacitor, 550kV 220MVAR Expandable to 330MVAR

203

13

Switch, Motor Operated Airbreak, 500kV 4000A

208

3

Switch, Motor Operated Airbreak, 500kV 2000A

209-1

1

Switch, Motor Operated Airbreak w/ GND Switch, 500kV 2000A

209-2

12

Capacitor Voltage Transformer, 500kV

211

6

Capacitor Voltage Transformer, 500kV w/ Carrier Accessories

212

6

Line Trap, 500kV 3000A

214-1

6

Line Tuner, Single Phase Units

214-2

12

Surge Arrestor, 318kV MCOV

215

6

Surge Arrestor, 144kV MCOV

238

138

Insulator, Station Post, 500kV 1800BIL

217

48

Insulator, Station Post, 500kV 1800BIL

218

153

Insulator, Suspension, Polymer 500kV Class

220

 

 

 

QTY

Structure Description

Item

2

Steel Structure, 500kV Line-Deadend A-Frame Structure

100-1

4

Steel Structure, 500kV Line-Deadend A-Frame Structure

100-2

51

Steel Structure, 500kV 3-ph Airbreak Support

106-1

12

Steel Structure, 500kV CCVT Structure

107-1

6

Steel Structure, 500kV Line Trap Structure

107-2

9

Steel Structure, 500kV Surge Arrestor Structure

108

 

                                                                               


 


10

Steel Structure, 500kV Strain Bus A-Frame Structure

101

2

Steel Structure, 500kV Transfer Bus Structure, Reactor

103

2

Steel Structure, 500kV Transfer Bus Structure, Spare for Reactor

103

6

Steel Structure, 500kV 3-ph Bus Support, Future Airbreak Support

106-2

117

Steel Structure, Lally, 500kV 1-ph Low Bus Support

110

3

Steel Structure, Lally, 500kV 1-ph Low Bus Support

110

16

Steel Structure, Lally, 500kV 1-ph Low Bus Support

111

 

 

 

QTY

Conductor Description

Item

3,500 ft

Conductor, 6” Aluminum Pipe, Schedule 80, 6063-T6

300

3,500 ft

Conductor, 1590 ACSR (Dampening for 6” Bus)

303

20,000 ft

Conductor, Strain Bus, 1780 ACSS “CHUKAR” 1.601 Diameter

304

6,750 ft

Conductor, 3/8” EHS Shield Wire

306

75,615 ft

Control Cable

 

 

 

 

QTY

Panel Description

P Number

1

Panel E9: SMLK 11-1 (Pri. #1 Relay)

5933

1

Panel E10: SMLK 11-2 (Pri. #2 Relay & 535A/536A Control)

5934

1

Panel E11: SMLK 11-3 (Pri. #3 Relay)

5935

 

 


 


 

 

 

 

 

1

Panel E12: SMLK L511 Protection & 511Z Control

5936

1

Panel E13: SMLK 511Z BF & Lockout

5937

1

Panel F14: RAS A & B (MPSN-HMWY-SMLK Remedial Action)

5947

1

Panel G13: MPSN#1 Power Line Carriers (RFL-9780-1, RFL-9780-2)

5953

1

Panel G14: SMLK Power Line Carriers (RFL-9780-1, RFL-9780-2)

5954

1

Panel H9: MPSN#1 11-1 (Pri. #1 Relay)

5955

1

Panel H10: MPSN#1 11-2 (Pri. #2 Relay & 538A/539A Control)

5956

1

Panel H11: MPSN#1 11-3 (Pri. #3 Relay)

5957

1

Panel L13: C513 11-1 (Pri. #1 Relay & 513W Control)

5966

1

Panel L14: C513 11-2 (Pri. #2 Relay)

5967

13

Panel Rack and Frames

 

1

Intertie Cabinet EF2: SUMMER LAKE 500kV LINE (535A/536A/511Z/L511/CCVT’s)

5985

1

Intertie Cabinet GH@: MPSN #1 500kV LINE (538A/539A/CCVT’s)

5987

1

Intertie Cabinet KL2: MPSN #2 500kV LINE(FUTURE) / C513

5991

 

 

 

QTY

Foundation Description

 

156

Other structures (for Items 101, 103, 106-2, 100, 111)

 

6

Deadend Structures (for Items 100-1 and 100-2)

 

78

Equipment Structures

 

 


 

 

3

Reactor oil containment

 

370 ft

Fence, Capacitor Bank Barrier

 

6

Key Interlock for Capacitor Bank Barrier Fence

 

 

 

 

TAP

 

 

 

 

 

QTY

Line Material Description

 

8

Dead-end, Single Pole Tubular Steel w/ Foundation

 

2

Tangent, Single Pole Tubular Steel w/ Foundation

 

2406

Insulator, 10” 52-5 b&s 30k

 

6

Insulator, Horizontal Post 500kV

 

40,500 ft

Conductor,  1272 ACSR 45/7 Bitten

 

8,500 ft

Overhead Ground Wire, 3/8 EHS Steel

 

 

 

 

                                                                               


 


 

 

 

 

Exhibit J

Form of Populus Easement Agreement

 

 

Recorded at the request of and

When recorded mail to:

 

Gil Green

Idaho Power Company

P. O. Box 70

Boise, Idaho 83707

 

EASEMENT AGREEMENT

 

 

FOR VALUE RECEIVED THIS EASEMENT AGREEMENT, MADE this ____ day of ________, 2010 by and between PACIFICORP, an Oregon corporation its successors and assigns (hereinafter called “Grantor”), and IDAHO POWER COMPANY, an Idaho Corporation, its successors and assigns (hereinafter called “ Grantee”) and

The Grantor does hereby grant and convey to the Grantee an easement for the nonexclusive right to use and access the Grantor’s property set forth in the description attached hereto as Exhibit A (the “Transmission Facilities Site”).

 

The property easement will be utilized by the Grantee and its agents, employees or contractors for the use of, and rights of ingress, egress and access to, the Transmission Facilities Site to permit the Grantee and its designees to exercise Grantee’s rights, duties, and privileges as described in the Hemingway Joint Ownership and Operating Agreement dated May 3, 2010, entered into by the Grantee and Grantor (“JOOA”).  The rights of the Grantee and its agents, employees or contractors for use of, ingress, egress and access to the Transmission Facilities Site shall be governed by Section 5.06(a) of the JOOA, during the period the JOOA is in effect, including during any period after the JOOA has been terminated but the surviving provisions identified in Section 2.05(b) (including Section 5.06(a)) remain in effect.  If the JOOA terminates or expires, the property easement will be utilized by the Grantee, and its agents, employees or contractors for the right of ingress, egress and access to the Transmission Facilities Site, for the inspection, construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement, and decommissioning of the Transmission Facilities, provided that Grantor and Grantee agree to reasonably cooperate with respect to such matters.  In the exercise of such easement rights, Grantee shall cause:  (i) the Grantees and its designees, as long as the JOOA has not expired or been terminated, not to interfere with the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities or any portion thereof by the Operator under the JOOA or to pose a safety hazard; (ii) the Grantee and its designees to comply with any requirements of any rights-of-ways, license, easement or other real property interest agreement
 

 


 


 

 

 


applicable to the Transmission Facilities, which are in effect as of the date hereof and any other requirements set forth in agreements arising after the date hereof with respect to which Grantee receives written notice; (iii) the Grantee to provide reasonable prior written notice to the Grantor of its intent to exercise any right or privilege granted by this Easement; and (iv) the Grantee and its designees exercising any right or privilege under this Easement to comply with the Grantor’s or any other contractor’s safety and operational procedures and security rules, provided that such procedures and rules are in writing and are delivered to Grantee in advance.

The Grantor does hereby grant and convey to the Grantee an easement for the nonexclusive right for the location of equipment in which the Grantee has an ownership interest, including the equipment described in Exhibit B hereto, together with any replacements, capital upgrades or improvements thereto (hereinafter “Equipment”), on the Transmission Facilities Site, to be utilized by the Grantee to locate Equipment on such premises, together with an easement to access said Equipment over and across the Transmission Facilities Site.  Any replacements, capital upgrades or improvements to the Equipment shall be made in accordance with the provisions of the JOOA prior to its expiration or termination.

Capitalized terms used in this access easement agreement but not otherwise defined herein, shall have the meanings given such terms in the JOOA.

Any notice required or permitted under this Easement shall be provided in accordance with the notice provisions of Section 20.01 of the JOOA.

The rights granted herein shall terminate if the Grantee no longer needs the easements for uses described herein and so notifies Grantor in writing.

GRANTOR: PACIFICORP

GRANTEE: IDAHO POWER COMPANY

___________________________________

_________________________________ 

By: ________________________________

By: ______________________________

Its: ________________________________

Its: ______________________________

   

 

STATE OF _________   )

COUNTY OF _______   )

On this             day of                                                 , 2010, before me, a Notary Public, personally appeared ______________________________ , ______________________________of PacifiCorp, that executed the within instrument, and acknowledged to me that such corporation executed the same as the free act and deed of said corporation.

 

                                                                               


 


 

 

 

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

(NOTARY SEAL)

 

 

 

 

Notary Public

 

 

 

Residing at:

 

 

 

My Commission expires:

 

[ADDITIONAL NOTARY ON FOLLOWING PAGE]

                                                                               


 


 

 

 

 

STATE OF _________   )

COUNTY OF _______   )

 

On this                         day of                                                 , 2010, before me, a Notary Public, personally appeared ______________________________ , _______________________________________ of Idaho Power Company, that executed the within instrument, and acknowledged to me that such corporation executed the same as the free act and deed of said corporation.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

(NOTARY SEAL)

 

 

 

 

Notary Public

 

 

 

Residing at:

 

 

 

My Commission expires:

                                                                               


 


 

 

 

 

 

EXHIBIT A

Description of the Transmission Facilities Site

A parcel of land situate in the East Half and the East Half of the Northwest Quarter of Section 32, Township 11 South, Range 37 East and the Northeast Quarter of the Northeast Quarter of Section 5, Township 12 South, Range 37 East, Boise Meridian, Bannock County, Idaho. The boundaries of said parcel are described as follows, to wit:

Beginning at a point which is 1676.62 feet S.00°51’01”W along the section line from the Northeast Corner of said Section 32 and running thence S.00°51’01”W 968.72 feet to the East Quarter Corner of said Section 32; thence S.00°13’36”E 2645.12 feet to the Southeast Corner of said Section 32; thence S.00°11’13”W 1303.25 feet along the section line to the Southeast corner of the Northeast Quarter of the Northeast Quarter of said Section 5; thence N.89°32’18”W 353.00 feet along the south line of said Northeast Quarter of the Northeast Quarter of Section 5; thence N.00°28’56”E 4336.61 feet; thence N.89°29’04”W 1090.62 feet; thence S.00°30’56”W 219.04 feet; thence N.89°29’04”W 678.13 feet; thence N.00°30’56”E 434.59 feet; thence S.89°40’21”W 1892.26 feet to the west line of the East Half of the Northwest Quarter of said Section 32; thence N.00°17’47”E 390.57 feet along said west line; thence S.89°31’02”E 3981.75 feet to the point of beginning. The above-described parcel contains 3,523,114 square feet or 80.880 acres, more or less.

                                                                               


 


 

 

 

 

EXHIBIT B

Description of Equipment

The Equipment will include all of the equipment and facilities described below in this Exhibit B which is installed at the Transmission Facilities Site as of the date of this deed.

The Equipment includes all above ground 345kV structures, bus, breakers, capacitors, associated equipment and foundations as listed below.  The major equipment included in the Equipment consists of sixteen 345 kV breakers, thirty-five air breaks, two line reactors, two series capacitor banks, one shunt capacitor bank and eleven coupling capacitor voltage transformers (CCVT), including all components associated with connection of the Bridger-Populus Transmission Lines (#s 1 and 2), the Populus–Borah Transmission Lines (#s 1 and 2), the Populus–Ben Lomond Transmission Lines (#s 1, 2 and 3) and the Populus–Kinport Transmission Line.

Transmission Line

 

 

 

 

Item

 

Description

Qnty

Dead End

Mono pole steel

10

Tangent

Mono pole steel

35

Dead End

Three pole steel

10

 

 

 

Substation

Item

Description 

Qnty

345 kV breaker

362kV, 3000A, 50kA, Gas Filled, w/Pre-insertion Resistors

13

 

322, 327, 328, 342, 343, 346, 347, 348, 362, 363, 366, 367, 368

 

 

 

 

345 kV breaker

362kV, 2000A, 50kA, Gas Filled, for shunt reactor

2

 

R393, R392

 

 

 

 

345 kV breaker

362kV, 3000A, 50kA, Gas Filled, for Capacitor Bank

1

 

C329

 

 

 

 

345 kV switch

362kV, 3000A, Vertical Break, W/Ground Switch (Line)

8

 

 

 

345 kV Switch

362kV, 3000A, Vertical Break (Breaker Isolation)

20

 

 

 

345 kV Switch

362kV, 2000A, Vertical Break (Capacitor & Reactor)

3

 

 

 

345 kV Switch

362kV, 3000A, Vertical Break, W/Ground Switch

4

 

382G, 352G, 383G, 353G

 

 

 

 

345 kV CCVT

1550KV BIL, 1800/3000:1, No Carrier Accessories

6

 


 


345 kV CCVT

1550KV BIL, 1800/3000:1, With Carrier Accessories

5

 

 

 

345 kV CT/VT

CT/VT Metering Units, 345kV

15

 

 

 

345 kV Capacitor

 

 

 

Bank

362kV, 220/F275 MVar

1

 

 

 

345 kV Series

 

 

 

Capacitor

347-262 kV, 1550 kV BIL

2

 

 

 

345 kV Reactors

362kV, 100MVA

2

 

 

 

Insulator

Station Post, 345kV

738

 

 

 

Insulator

Suspension, 345kV

48

 

 

 

Bus

Rigid and Wire Bus, Assemblies, and Connectors

1

 

 

 

Bus

Rigid & Wire Bus, Ass. & Connectors – 345kV Series Capacitor

2

 

 

 

Security

Security System, Conduit Installation

1

 

 

 

Communications

Power Line Carrier, With All Additional Equipment

5

 

 

 

Line Traps

345kV, 3000A

5

 

 

 

Lightning Arresters

345 kV, 212kV MCOV

24

 

 

 

Oil Containment

System and Foundation

1

 

 

 

Foundations

Concrete - Drilled Piers

5685 Yds

 

 

 

Steel

Structural Steel Supports

2374881 lbs.

 

 

 

 

                                                                               


 


 

 

 

 

Exhibit K

Description of Hemingway Substation Site

 

A parcel of land located in the S 1/2 of the NW 1/4 and the N 1/2 of the SW 1/4 and the S 1/2 of the NE 1/4 of Section 11, T. 1S., R. 3W., B.M., Owyhee County, Idaho, more particularly described as follows:  Commencing at an aluminum cap marking the East 1/4 corner of said Section 11, from which a 5/8” iron pin marking the Northeast corner of said section bears North 00°51’35” East, 2634.17 feet;  Thence along the mid-section line North 89°13’35” West, 96.79 feet to a point lying on the Westerly right-of-way of State Highway 78 and the REAL POINT OF BEGINNING.

 

Thence continuing along said mid-section line North 89°13’35” West, 2575.51 feet to the Center 1/4 of Section11;

Thence along the East line of the Northeast 1/4 of the Southwest 1/4 of said Section 11 South 00°59’54” West, 1,317.77 feet to the Center-South 1/16 corner of said Section 11;

Thence along the South line of the said North 1/2 of the Southwest 1/4 of Section 11 North 89°14’11” West, 1,993.10 feet;

Thence North 25°53’47” West, 203.54 feet;

Thence North 25°46’49” East, 2,543.71 feet;

Thence South 64°13’11” East, 1,984.81 feet;

Thence South 89°13’35” East, 1,723.88 feet to the intersection with the said westerly right-of-way of State Highway 78;

 

Thence along said westerly right-of-way South 10°44’30” East, 336.78 feet to the REAL POINT OF BEGINNING.

 

And also:

 

A parcel of land being the Northwest Quarter of the Southeast Quarter of Section 11 Township 1 South, Range 3 West, Boise Meridian, Owyhee County, Idaho, more particularly described as follows:

 

Beginning at the Northwest corner of said Northwest Quarter of the Southeast Quarter, (Center ¼ corner), said corner monumented with a 5/8 inch diameter iron pin; thence South 89°13’27” East, a distance of 1336.21 feet along the Northerly boundary of said Northwest Quarter of the Southeast Quarter to the Northeast corner of said Northwest Quarter of the Southeast Quarter, said corner monumented with a 1½ inch diameter aluminum disk; thence

South 00°56’01” West, a distance of 1317.48 feet along the Easterly boundary of said Northwest Quarter of the Southeast Quarter to the Southeast corner of said Northwest Quarter of the Southeast Quarter, said corner monumented with a 3-inch diameter B.L.M. aluminum disk: thence

North 89°14’16” West, a distance of 1337.76 feet along the Southerly boundary of said Northwest Quarter of the Southeast Quarter to the Southwest corner of said Northwest Quarter of the Southeast Quarter, said corner monumented with a 3-inch diameter B.L.M. aluminum disk; thence

 


 


 

 

 

 

North 01°00’02” East, a distance of 1317.80 feet along the Westerly boundary of said Northwest Quarter of the Southeast Quarter to the POINT OF BEGINNING

 

 

 

                                                                               


 


 

 

 

 

Exhibit L

Description of Populus Substation Site

 

A parcel of land situate in the East Half and the East Half of the Northwest Quarter of Section 32, Township 11 South, Range 37 East and the Northeast Quarter of the Northeast Quarter of Section 5, Township 12 South, Range 37 East, Boise Meridian, Bannock County, Idaho. The boundaries of said parcel are described as follows, to wit:

Beginning at a point which is 1676.62 feet S.00°51’01”W along the section line from the Northeast Corner of said Section 32 and running thence S.00°51’01”W 968.72 feet to the East Quarter Corner of said Section 32; thence S.00°13’36”E 2645.12 feet to the Southeast Corner of said Section 32; thence S.00°11’13”W 1303.25 feet along the section line to the Southeast corner of the Northeast Quarter of the Northeast Quarter of said Section 5; thence N.89°32’18”W 353.00 feet along the south line of said Northeast Quarter of the Northeast Quarter of Section 5; thence N.00°28’56”E 4336.61 feet; thence N.89°29’04”W 1090.62 feet; thence S.00°30’56”W 219.04 feet; thence N.89°29’04”W 678.13 feet; thence N.00°30’56”E 434.59 feet; thence S.89°40’21”W 1892.26 feet to the west line of the East Half of the Northwest Quarter of said Section 32; thence N.00°17’47”E 390.57 feet along said west line; thence S.89°31’02”E 3981.75 feet to the point of beginning. The above-described parcel contains 3,523,114 square feet or 80.880 acres, more or less.

 

 

 


 


 

 

 

 

Exhibit M

Form of Hemingway Deed

 

Recorded at the request of and

When recorded mail to:

 

Gil Green

Idaho Power Company

P. O. Box 70

Boise, Idaho 83707

DEED

 

FOR VALUE RECEIVED, IDAHO POWER COMPANY, an Idaho corporation, whose address is 1221 W. Idaho Street, Boise, Idaho 83702 (“Grantor”), does hereby grant, bargain, sell and convey unto PACIFICORP, an Oregon corporation (“Grantee”),  its successors and assigns, a fifty-nine percent (59.0%) undivided ownership interest, as tenant in common, in the following described equipment, located in Owyhee County, Idaho (as described in Exhibit A hereto, hereinafter the “Equipment”), pursuant to the Joint Purchase and Sale Agreement dated April 30, 2010 (“JPSA”) between the Grantor and Grantee.

 

The Equipment described in Exhibit A is located on real property owned by Grantor in the S ½ of the NW ¼ and the N ½ of the SW ¼ and the S ½ of the NE ¼ and the NW ¼ of the SE ¼ of Section 11, T. 1S., R. 3W., B.M., Owyhee County, Idaho, as more particularly described on Exhibit B hereto (the “Land”).

 

This deed in not intended in any way to convey any interest in any real property on which the Equipment is located.

 

The Grantor covenants to the Grantee that Grantor is the owner of the Equipment; that the Equipment is free from Encumbrances other than Idaho Power Permitted Encumbrances, as each term is defined in the JPSA.

 

TO HAVE AND TO HOLD said partial ownership interest in the Equipment, unto Grantee, and Grantee’s successors and assigns forever.

 

IN WITNESS WHEREOF, the Grantor has executed this instrument on this ____ day of ______, 2010.

 

GRANTOR:

IDAHO POWER COMPANY,

 

an Idaho Corporation

 

 

 

By:  _________________________________

 

 

  Its:  _________________________________

 

                                                                                                           


 


 

 

 

 

 

STATE OF                               )

ss.

County of                                 )

 

On this _____ day of _____________, 2010, before me, the undersigned Notary Public in and for said State, personally appeared _________________, known or identified to me to be the ____________________ of _________________, an Idaho corporation, and the corporation that executed the within instrument, or the person who executed the instrument in behalf of said corporation, and acknowledged to me that such corporation executed the same.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

                                                                     

Notary Public for                                           

My Commission expires:                                 
                                                                                                           


 


 

 

 

 

Exhibit A

 

Description of Equipment

 

The Equipment will include all of the equipment and facilities described below in this Exhibit A which are installed at the Land as of the date of this deed.

 

The Equipment includes all above ground 500kV structures, bus, and equipment and associated foundations starting at the 230kV side of the transformer high-side air break, 501H, to the extents of the station yard where the Midpoint Station (MPSN) 1 and Summer Lake (SMLK) line terminals depart to the tap line segments.  The major equipment included in the Equipment consists of six 500kV breakers and one spare 500kV breaker (stored on location),  seventeen 500kV air breaks, one SMLK line reactor bank (three 1-phase units), and one shunt capacitor bank and associated barrier fence attached to bus #2.  Also included in the Equipment are 13 control, protection and line carrier panels, 3 intertie cabinets and their associated control cables from the panels to the yard equipment.  The Equipment also includes all components associated with both tap segments for the MPSN 1 and SMLK line terminals extending and connecting to the existing MPSN—SMLK line.

 

STATION

 

 

 

 

QTY

Equipment Description

Item

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 2000Amp

206

1

Power Circuit Breaker, 550kV 2000Amp

204

1

Power Circuit Breaker, 550kV 2000Amp

204

10

Local Equipment Annunciator Units for Reactors and Breakers

 

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Capacitor, 550kV 220MVAR

203

 

                                                                             


 


 

Expandable to 330MVAR

 

13

Switch, Motor Operated Airbreak, 500kV 4000A

208

3

Switch, Motor Operated Airbreak, 500kV 2000A

209-1

1

Switch, Motor Operated Airbreak w/ GND Switch, 500kV 2000A

209-2

12

Capacitor Voltage Transformer, 500kV

211

6

Capacitor Voltage Transformer, 500kV w/ Carrier Accessories

212

6

Line Trap, 500kV 3000A

214-1

6

Line Tuner, Single Phase Units

214-2

12

Surge Arrestor, 318kV MCOV

215

6

Surge Arrestor, 144kV MCOV

238

138

Insulator, Station Post, 500kV 1800BIL

217

48

Insulator, Station Post, 500kV 1800BIL

218

153

Insulator, Suspension, Polymer 500kV Class

220

 

 

 

QTY

Structure Description

Item

2

Steel Structure, 500kV Line-Deadend A-Frame Structure

100-1

4

Steel Structure, 500kV Line-Deadend A-Frame Structure

100-2

51

Steel Structure, 500kV 3-ph Airbreak Support

106-1

12

Steel Structure, 500kV CCVT Structure

107-1

6

Steel Structure, 500kV Line Trap Structure

107-2

9

Steel Structure, 500kV Surge Arrestor Structure

108

10

Steel Structure, 500kV Strain Bus A-Frame Structure

101

2

Steel Structure, 500kV Transfer Bus Structure, Reactor

103

2

Steel Structure, 500kV Transfer Bus Structure, Spare for Reactor

103

6

Steel Structure, 500kV 3-ph Bus Support, Future Airbreak Support

106-2

117

Steel Structure, Lally, 500kV 1-ph Low Bus Support

110

 

                                                                             

                                                                                                           


 


3

Steel Structure, Lally, 500kV 1-ph Low Bus Support

110

16

Steel Structure, Lally, 500kV 1-ph Low Bus Support

111

 

 

 

QTY

Conductor Description

Item

3,500 ft

Conductor, 6” Aluminum Pipe, Schedule 80, 6063-T6

300

3,500 ft

Conductor, 1590 ACSR (Dampening for 6” Bus)

303

20,000 ft

Conductor, Strain Bus, 1780 ACSS “CHUKAR” 1.601 Diameter

304

6,750 ft

Conductor, 3/8” EHS Shield Wire

306

75,615 ft

Control Cable

 

 

 

 

QTY

Panel Description

P Number

1

Panel E9: SMLK 11-1 (Pri. #1 Relay)

5933

1

Panel E10: SMLK 11-2 (Pri. #2 Relay & 535A/536A Control)

5934

1

Panel E11: SMLK 11-3 (Pri. #3 Relay)

5935

1

Panel E12: SMLK L511 Protection & 511Z Control

5936

1

Panel E13: SMLK 511Z BF & Lockout

5937

1

Panel F14: RAS A & B (MPSN-HMWY-SMLK Remedial Action)

5947

1

Panel G13: MPSN#1 Power Line Carriers (RFL-9780-1, RFL-9780-2)

5953

1

Panel G14: SMLK Power Line Carriers (RFL-9780-1, RFL-9780-2)

5954

1

Panel H9: MPSN#1 11-1 (Pri. #1 Relay)

5955

1

Panel H10: MPSN#1 11-2 (Pri. #2 Relay & 538A/539A Control)

5956

1

Panel H11: MPSN#1 11-3 (Pri. #3 Relay)

5957

1

Panel L13: C513 11-1 (Pri. #1 Relay & 513W Control)

5966

1

Panel L14: C513 11-2 (Pri. #2 Relay)

5967

13

Panel Rack and Frames

 

1

Intertie Cabinet EF2: SUMMER LAKE 500kV LINE (535A/536A/511Z/L511/CCVT’s)

5985

1

Intertie Cabinet GH@: MPSN #1 500kV LINE (538A/539A/CCVT’s)

5987

1

Intertie Cabinet KL2: MPSN #2 500kV

5991

 

 


 


                                                                                                           

 

LINE(FUTURE) / C513

 

 

 

 

QTY

Foundation Description

 

156

Other structures (for Items 101, 103, 106-2, 100, 111)

 

6

Deadend Structures (for Items 100-1 and 100-2)

 

78

Equipment Structures

 

3

Reactor oil containment

 

370 ft

Fence, Capacitor Bank Barrier

 

6

Key Interlock for Capacitor Bank Barrier Fence

 

 

 

 

TAP

 

 

 

 

 

QTY

Line Material Description

 

8

Dead-end, Single Pole Tubular Steel w/ Foundation

 

2

Tangent, Single Pole Tubular Steel w/ Foundation

 

2406

Insulator, 10” 52-5 b&s 30k

 

6

Insulator, Horizontal Post 500kV

 

40,500 ft

Conductor,  1272 ACSR 45/7 Bitten

 

8,500 ft

Overhead Ground Wire, 3/8 EHS Steel

 

 

                                                                             


 


 

 

 

 

Exhibit B

 

Description of Land

 

A parcel of land located in the S 1/2 of the NW 1/4 and the N 1/2 of the SW 1/4 and the S 1/2 of the NE 1/4 of Section 11, T. 1S., R. 3W., B.M., Owyhee County, Idaho, more particularly described as follows:  Commencing at an aluminum cap marking the East 1/4 corner of said Section 11, from which a 5/8” iron pin marking the Northeast corner of said section bears North 00°51’35” East, 2634.17 feet;  Thence along the mid-section line North 89°13’35” West, 96.79 feet to a point lying on the Westerly right-of-way of State Highway 78 and the REAL POINT OF BEGINNING.

 

Thence continuing along said mid-section line North 89°13’35” West, 2575.51 feet to the Center 1/4 of Section11;

Thence along the East line of the Northeast 1/4 of the Southwest 1/4 of said Section 11 South 00°59’54” West, 1,317.77 feet to the Center-South 1/16 corner of said Section 11;

Thence along the South line of the said North 1/2 of the Southwest 1/4 of Section 11 North 89°14’11” West, 1,993.10 feet;

Thence North 25°53’47” West, 203.54 feet;

Thence North 25°46’49” East, 2,543.71 feet;

Thence South 64°13’11” East, 1,984.81 feet;

Thence South 89°13’35” East, 1,723.88 feet to the intersection with the said westerly right-of-way of State Highway 78;

 

Thence along said westerly right-of-way South 10°44’30” East, 336.78 feet to the REAL POINT OF BEGINNING.

 

And also:

 

A parcel of land being the Northwest Quarter of the Southeast Quarter of Section 11 Township 1 South, Range 3 West, Boise Meridian, Owyhee County, Idaho, more particularly described as follows:

 

Beginning at the Northwest corner of said Northwest Quarter of the Southeast Quarter, (Center ¼ corner), said corner monumented with a 5/8 inch diameter iron pin; thence South 89°13’27” East, a distance of 1336.21 feet along the Northerly boundary of said Northwest Quarter of the Southeast Quarter to the Northeast corner of said Northwest Quarter of the Southeast Quarter, said corner monumented with a 1½ inch diameter aluminum disk; thence

South 00°56’01” West, a distance of 1317.48 feet along the Easterly boundary of said Northwest Quarter of the Southeast Quarter to the Southeast corner of said Northwest Quarter of the Southeast Quarter, said corner monumented with a 3-inch diameter B.L.M. aluminum disk: thence

North 89°14’16” West, a distance of 1337.76 feet along the Southerly boundary of said Northwest Quarter of the Southeast Quarter to the Southwest corner of said Northwest Quarter of the Southeast Quarter, said corner monumented with a 3-inch diameter B.L.M. aluminum disk; thence

                                                                                                           


 


 

 

 

 

North 01°00’02” East, a distance of 1317.80 feet along the Westerly boundary of said Northwest Quarter of the Southeast Quarter to the POINT OF BEGINNING

 

 

 

                                                                                                           


 


 

 

EXECUTION COPY

 

Exhibit N

Form of Populus Deed

 

 

Recorded at the request of and

When recorded mail to:

 

Gil Green

Idaho Power Company

P. O. Box 70

Boise, Idaho 83707

DEED

 

FOR VALUE RECEIVED, PACIFICORP, an Oregon corporation (“Grantor”), does hereby grant, bargain, sell and convey unto IDAHO POWER COMPANY, an Idaho corporation, whose address is 1221 W. Idaho Street, Boise, Idaho 83702 (“Grantee”),  its successors and assigns, a twenty and eight tenths percent (20.8%) undivided ownership interest, as tenant in common, in the following described equipment, located in Bannock County, Idaho (as described in Exhibit A hereto, hereinafter the “Equipment”), pursuant to the Joint Purchase and Sale Agreement dated April 30, 2010 (“JPSA”) between the Grantor and Grantee.

 

The Equipment described in Exhibit A is located on a parcel of land owned by Grantor situate in the East Half and the East Half of the Northwest Quarter of Section 32, Township 11 South, Range 37 East and the Northeast Quarter of the Northeast Quarter of Section 5, Township 12 South, Range 37 East, Boise Meridian, Bannock County, Idaho, as more particularly described on Exhibit B hereto (the “Land”).

 

This deed in not intended in any way to convey any interest in any real property on which the Equipment is located.

 

The Grantor covenants to the Grantee that Grantor is the owner of the Equipment; that the Equipment is free from Encumbrances other than PacifiCorp Permitted Encumbrances, as each term is defined in the JPSA.

 

TO HAVE AND TO HOLD said partial ownership interest in the Equipment, unto Grantee, and Grantee’s successors and assigns forever.

 

IN WITNESS WHEREOF, the Grantor has executed this instrument on this ____ day of _______, 2010.

 

GRANTOR:

PACIFICORP, an Oregon corporation

 

 

 

By:  ________________________________

   
 

 

 

 


 

 

 

Its: ________________________________

 

 

STATE OF                               )

ss.

County of                                 )

 

On this _____ day of _____________, 2010, before me, the undersigned Notary Public in and for said State, personally appeared _________________, known or identified to me to be the ____________________ of _________________, an Oregon corporation, and the corporation that executed the within instrument, or the person who executed the instrument in behalf of said corporation, and acknowledged to me that such corporation executed the same.

 

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year in this certificate first above written.

 

                                                                       

Notary Public for                                           

My Commission expires:                                 

 

                                                                             


 


 

 

 

 

Exhibit A

 

Description of Equipment

 

The Equipment will include all of the equipment and facilities described below in this Exhibit A which is installed at the Land as of the date of this deed.

 

The Equipment includes all above ground 345kV structures, bus, breakers, capacitors, associated equipment and foundations as listed below.  The major equipment included in the Equipment consists of sixteen 345 kV breakers, thirty-five air breaks, two line reactors, two series capacitor banks, one shunt capacitor bank and eleven coupling capacitor voltage transformers (CCVT), including all components associated with connection of the Bridger-Populus Transmission Lines (#s 1 and 2), the Populus–Borah Transmission Lines (#s 1 and 2), the Populus–Ben Lomond Transmission Lines (#s 1, 2 and 3) and the Populus–Kinport Transmission Line.

Transmission Line

Item

 

Description

Qnty

Dead End

Mono pole steel

10

Tangent

Mono pole steel

35

Dead End

Three pole steel

10

 

 

 

Substation

Item

Description 

Qnty

345 kV breaker

362kV, 3000A, 50kA, Gas Filled, w/Pre-insertion Resistors

13

 

322, 327, 328, 342, 343, 346, 347, 348, 362, 363, 366, 367, 368

 

 

 

 

345 kV breaker

362kV, 2000A, 50kA, Gas Filled, for shunt reactor

2

 

R393, R392

 

 

 

 

345 kV breaker

362kV, 3000A, 50kA, Gas Filled, for Capacitor Bank

1

 

C329

 

 

 

 

345 kV switch

362kV, 3000A, Vertical Break, W/Ground Switch (Line)

8

 

 

 

345 kV Switch

362kV, 3000A, Vertical Break (Breaker Isolation)

20

 

 

 

345 kV Switch

362kV, 2000A, Vertical Break (Capacitor & Reactor)

3

 

 

 

345 kV Switch

362kV, 3000A, Vertical Break, W/Ground Switch

4

 

382G, 352G, 383G, 353G

 

 

 

 

345 kV CCVT

1550KV BIL, 1800/3000:1, No Carrier Accessories

6

 

 

 

345 kV CCVT

1550KV BIL, 1800/3000:1, With Carrier Accessories

5

 


 

 

345 kV CT/VT

CT/VT Metering Units, 345kV

15

 

 

 

345 kV Capacitor

 

 

 

Bank

362kV, 220/F275 MVar

1

 

 

 

345 kV Series

 

 

 

Capacitor

347-262 kV, 1550 kV BIL

2

 

 

 

345 kV Reactors

362kV, 100MVA

2

 

 

 

Insulator

Station Post, 345kV

738

 

 

 

Insulator

Suspension, 345kV

48

 

 

 

Bus

Rigid and Wire Bus, Assemblies, and Connectors

1

 

 

 

Bus

Rigid & Wire Bus, Ass. & Connectors – 345kV Series Capacitor

2

 

 

 

Security

Security System, Conduit Installation

1

 

 

 

Communications

Power Line Carrier, With All Additional Equipment

5

 

 

 

Line Traps

345kV, 3000A

5

 

 

 

Lightning Arresters

345 kV, 212kV MCOV

24

 

 

 

Oil Containment

System and Foundation

1

 

 

 

Foundations

Concrete - Drilled Piers

5685 Yds

 

 

 

Steel

Structural Steel Supports

2374881 lbs.

 

 

 

                                                                             


 


 

 

 

 

Exhibit B

 

Description of Land

 

A parcel of land situate in the East Half and the East Half of the Northwest Quarter of Section 32, Township 11 South, Range 37 East and the Northeast Quarter of the Northeast Quarter of Section 5, Township 12 South, Range 37 East, Boise Meridian, Bannock County, Idaho. The boundaries of said parcel are described as follows, to wit:

Beginning at a point which is 1676.62 feet S.00°51’01”W along the section line from the Northeast Corner of said Section 32 and running thence S.00°51’01”W 968.72 feet to the East Quarter Corner of said Section 32; thence S.00°13’36”E 2645.12 feet to the Southeast Corner of said Section 32; thence S.00°11’13”W 1303.25 feet along the section line to the Southeast corner of the Northeast Quarter of the Northeast Quarter of said Section 5; thence N.89°32’18”W 353.00 feet along the south line of said Northeast Quarter of the Northeast Quarter of Section 5; thence N.00°28’56”E 4336.61 feet; thence N.89°29’04”W 1090.62 feet; thence S.00°30’56”W 219.04 feet; thence N.89°29’04”W 678.13 feet; thence N.00°30’56”E 434.59 feet; thence S.89°40’21”W 1892.26 feet to the west line of the East Half of the Northwest Quarter of said Section 32; thence N.00°17’47”E 390.57 feet along said west line; thence S.89°31’02”E 3981.75 feet to the point of beginning. The above-described parcel contains 3,523,114 square feet or 80.880 acres, more or less.

 

 

                                                                             


 


 

 

EXECUTION COPY

 

Schedule 1.1(a)          Hemingway Transferable Permits

 

None

                                                                                                  

 

 

Schedule 1.1(b)          Idaho Power’s Knowledge

 

Vern Porter – V.P., Engineering & Operations

Marsha Leese – Manager, Delivery Projects

Doug Dockter – Engineering Leader, 500 kV Projects

Mike Bracke – Project Leader

Todd Adams – Project Leader

 

 

 

Schedule 1.1(c)           Idaho Power Permitted Encumbrances

 

Hemingway BLM Right-of-Way Grant

 

The Mortgage and Deed of Trust, dated as of October 1, 1937, and indentures supplemental thereto, granted by Idaho Power to Deutsche Bank Trust Company Americas, formerly known as Bankers Trust Company and Stanley Burg, as Trustees.

 

Schedule 1.1(d)          PacifiCorp’s Knowledge

 

Lisa Symonds – Project Manager

Kenneth Houston – Director, Transmission Service

Brian Fritz – Director, Transmission Development

John Cupparo – Vice President, Transmission

 

 

Schedule 1.1(e)           PacifiCorp Permitted Encumbrances

 

Mortgage and Deed of Trust from PacifiCorp to Morgan Guaranty Trust Company of New York (The Bank of New York Mellon Trust Company, N.A., successor), dated as of January 9, 1989, as amended and supplemented by supplemental indentures, including the Twenty-Third Supplemental Indenture, dated January 1, 2009 and recorded in the records of Bannock County, Idaho on June 10, 2009, under Recording No. 20912676

 

 

                                                                                                       

 


 


 

 

EXECUTION COPY

 

 

Schedule 1.1(f)           Populus Transferable Permits

 

None

 

Schedule 3.1(e)  Exceptions to Governmental Authorizations Obtained by Idaho Power

 

Acceptance of the Hemingway Joint Ownership and Operating Agreement for filing by the Federal Energy Regulatory Commission under Section 205 of the Federal Power Act (filing to occur within five (5) days following the Closing Date)

 

 

 

Schedule 3.1(f)           PacifiCorp Acquired Assets - Liabilities

 

None

 

 

Schedule 3.1(g)          PacifiCorp Acquired Assets - Title Exceptions

 

None

 

 

Schedule 3.1(h)(i)-A  PacifiCorp Acquired Assets - Environmental Permits

 

EPA NPDES General Construction Permit Number IDR10BZ05 – Stormwater Pollution Prevention Plan (SWPPP) for Construction

 

Owyhee County Subsurface Sewage Disposal Permit

 

State of Idaho, Department of Water Resources Permit No. 57-11790 (Water Well): 12/1/2009

 

 

Schedule 3.1(h)(i)-B   PacifiCorp Acquired Assets - Environmental Law and Environmental Permit Exceptions

 

None

 

 

                                                                                                       

 


 


 

 

EXECUTION COPY

 

Schedule 3.1(h)(ii)      PacifiCorp Acquired Assets – Violation of Environmental Laws and Environmental Permits

 

None

 

Schedule 3.1(h)(iii)     PacifiCorp Acquired Assets - Releases

 

None

 

 

Schedule 3.1(h)(iv)     PacifiCorp Acquired Assets – Storage Tanks, etc.

 

Reactor Oil Containment (open basin)

 

 

 

Schedule 3.1(h)(v)      PacifiCorp Acquired Assets – Assumed Obligations Under Environmental Laws

 

Clean Water Act – Spill Prevention, Control and Countermeasures (SPCC)

 

 

Schedule 3.1(h)(vi)     PacifiCorp Acquired Assets - Environmental Reports

 

For the 500 kV tap lines in-and-out of the Hemingway Substation and covered by the Hemingway BLM Right-of-Way Grant:

 

Wildlife Baseline Technical Report – Hemingway Substation Bureau of Land Management Track: 11/24/2008

 

Vegetation Baseline Technical Report – Hemingway Substation Bureau of Land Management Track: 11/25/2008

 

 

Schedule 3.1(k)          PacifiCorp Acquired Assets – Intellectual Property

 

None

 

 

Schedule 3.1(l)           Hemingway Substation Facilities Contracts

 

Allied Barton Security

ALS Land Surveying

Anderson & Wood – Fence & Foundations for In-and-Out

Western Construction – Site Work

Energy Erectors – Substation

                                                                                                       

 


 


 

 

 

 

Derek Pearson – Wire Fencing

Power Engineers

Material Testing & Inspection (MTI)

All Treasure Valley Septic Services (Portable Toilets)

Utah Yamas Controls

Schweitzer Engineering (SEL)

American Geotechnics, Inc.

Crane West

Sawtooth Water

United Rental

Global Rental

Inland Crane

Westtowns Disposal inc.

Paul R. Russman

Barclay Crane, LLC

Modern Machinery

Western States Equipment

Napa Auto Parts

General Cable - Conductor

Areva – Power Circuit Breakers

Siemens – Power Transformers, Line Reactors

HD Supply – Arrestors

ABB – Shunt Capacitor Bank

T&B (Meyers) – tubular steel poles

 

 

Schedule 3.2(e)           Exceptions to Governmental Authorizations Obtained by PacifiCorp

 

Acceptance of the Populus Joint Ownership and Operating Agreement for filing by the Federal Energy Regulatory Commission under Section 205 of the Federal Power Act (filing to occur within five (5) days following the Closing Date)

 

Stormwater Pollution Prevention Permit (SWPPP) (to be sought following completion of construction)

 

 

Schedule 3.2(f)           Idaho Power Acquired Assets - Liabilities

 

None

 

 

Schedule 3.2(g)          Idaho Power Acquired Assets - Title Exceptions

 

None

                                                                                                       

 


 

 

 

Schedule 3.2(h)(i)-A  Idaho Power Acquired Assets - Environmental Permits

 

Stormwater Pollution Prevention Permit (SWPPP)

 

 

Schedule 3.2(h)(i)-B   Idaho Power Acquired Assets - Environmental Law and Environmental Permit Exceptions

 

None

 

 

Schedule 3.2(h)(ii)      Idaho Power Acquired Assets – Violation of Environmental Laws and Environmental Permits

 

None

 

Schedule 3.2(h)(iii)     Idaho Power Acquired Assets - Releases

 

None

 

 

Schedule 3.2(h)(iv)     Idaho Power Acquired Assets – Storage Tanks, etc.

 

Reactor Oil Containment

 

 

Schedule 3.2(h)(v)      Idaho Power Acquired Assets – Assumed Obligations Under Environmental Laws

 

Clean Water Act – Spill Prevention, Control and Countermeasures (SPCC)

 

 

Schedule 3.2(h)(vi)     Idaho Power Acquired Assets - Environmental Reports

 

Threatened and Endangered Species Assessment Report for the Populus 345 Substation, Bannock County, Idaho (September, 2008)

 

                                                                                                       

 


 

Schedule 3.2(k)          Idaho Power Acquired Assets – Intellectual Property

 

None

 

Schedule 3.2(l)           Populus Substation Facilities Contracts

 

Populus Terminal 345 kV Transmission Line Project, Engineering, Procurement and Construction Contract with Populus Terminal Transmission Partners, dated September 30, 2008

 

General Electric – Series and shunt capacitors

 

Areva – shunt reactors

 

 

Schedule 4.2(a)          Idaho Power Required Regulatory Approvals Initiated by Idaho Power prior to the Effective Date

 

None

 

 

Schedule 4.2(b)          PacifiCorp Required Regulatory Approvals Initiated by PacifiCorp prior to the Effective Date

 

None

                                                                                   

 

 

 

Exhibit 10.70

 

EXECUTION COPY

 

 

 

 

 

 

 

 

 

 

 

 

 

HEMINGWAY JOINT OWNERSHIP AND OPERATING AGREEMENT

BETWEEN

IDAHO POWER COMPANY,

AS OWNER AND OPERATOR

AND

PACIFICORP,

AS OWNER

 

 

 

 

May 3, 2010

 


 


 

 

EXECUTION COPY

 

 

TABLE OF CONTENTS

PAGE

ARTICLE I DEFINITIONS; RULES OF INTERPRETATION

2

1.01

Definitions

2

1.02

Rules of Construction

9

ARTICLE II TERM

10

2.01

Effectiveness of this Agreement

10

2.02

FERC Filing

10

2.03

Term

10

2.04

Termination

10

2.05

Effect of Termination

10

ARTICLE III CONSTRUCTION

11

3.01

Engineering, Design and Construction of the Jointly-Developed Transmission Facilities

11

3.02

Interconnection

11

3.03

Rights-of-Way

11

3.04

Monthly Reports

11

3.05

Development and Construction Costs

12

ARTICLE IV OWNERSHIP INTERESTS

12

4.01

Ownership Interests

12

4.02

Owner’s Capacity Share

12

4.03

Qualified Owner

13

4.04

No Right to Use

13

4.05

Payments

13

4.06

Waiver of Partition Rights

13

ARTICLE V OPERATOR

14

5.01

Appointment of Operator

14

5.02

Authority of Operator

14

5.03

Standard of Work

15

5.04

Delegation of Responsibilities

15

5.05

Governmental Authorizations

15

5.06

Access

16

 

 

 

 

 

 

 

 

                                                                              i

   


 


 

 

EXECUTION COPY

 

 

 

 

5.07

Insurance

17

5.08

Invoices

17

5.09

Disputed Amounts

18

5.1

Assistance

18

5.11

Remedies

19

ARTICLE VI   OPERATION AND MAINTENANCE; CURTAILMENT; 

INTERCONNECTION WITH THIRD PARTIES; COMMON

FACILITIES

19

6.01

Operation and Maintenance; Capital Upgrades and Improvements

19

6.02

Curtailment

20

6.03

Interconnection with Third Parties

20

6.04

Common Facilities

20

ARTICLE VII  CAPITAL UPGRADES PROPOSED BY AN OWNER

21

7.01

Capital Upgrades

21

ARTICLE VIII  PHYSICAL DAMAGE TO TRANSMISSION

FACILITIES; CONDEMNATION

23

8.01

Rebuilding Damaged Facilities

23

8.02

Decision not to Rebuild

24

8.03

Purchase of Ownership Interest

24

8.04

Cooperation

25

8.05

Condemnation

25

ARTICLE IX RETIREMENT AND DECOMMISSIONING

26

9.01

Decision to Retire Transmission Facilities

26

9.02

Costs of Decommissioning

26

9.03

Purchase of Ownership Interest

26

9.04

Cooperation

26

ARTICLE X INTERCONNECTION

26

10.01

Grant of Interconnection

26

10.02

Interconnection Operating Procedures

27

10.03

Interconnection Energization

27

10.04

Metering

27

10.05

Service Conditions

28

10.06

Survival of Interconnection Provision

29

 

 

 

 

 

 

 

                                                                             ii

   


 


 

 

EXECUTION COPY

 

 

 

 

ARTICLE XI FORCE MAJEURE

29

11.01

Force Majeure Defined

29

11.02

Effect of Force Majeure

30

ARTICLE XII EVENTS OF DEFAULT

30

12.01

Event of Default

30

12.02

Cure by Non-Defaulting Owner

31

12.03

Remedies

31

ARTICLE XIII REPRESENTATIONS AND WARRANTIES

32

13.01

Representations and Warranties of PacifiCorp

32

13.02

Representations and Warranties of Idaho Power

32

ARTICLE XIV INDEMNIFICATION

33

14.01

Indemnities

33

14.02

Notice and Participation

34

14.03

Net Amount

35

14.04

No Release of Insurers

35

14.05

Mitigation

35

14.06

Assertion of Claims

35

14.07

Survival of Obligation

36

14.08

Limitation on Liability

36

ARTICLE XV PROPRIETARY INFORMATION

36

15.01

Disclosure of Proprietary Information Prohibited

36

15.02

Disclosure by Representatives

36

15.03

Permitted Disclosures

37

15.04

Injunctive Relief

37

15.05

Publicity

37

15.06

Proprietary Information Defined

37

15.07

Survival

38

ARTICLE XVI RELIABILITY

38

16.01

Reliability

38

 

 

 

 

 

 

 

 

 

 

 

 

                                                                             iii

   


 


 

 

EXECUTION COPY

 

 

 

 

ARTICLE XVII TAXES

38

17.01

No Partnership

38

17.02

761 Election

38

17.03

Responsibility for Taxes

39

17.04

Indemnification

39

17.05

Determination of Depreciation and Other Matters

39

ARTICLE XVIII DISPUTES

40

18.01

Exclusive Procedure

40

18.02

Dispute Notices

40

18.03

Informal Dispute Resolution

40

18.04

Submission of Dispute to FERC or Approved Courts

40

18.05

Continued Performance

41

ARTICLE XIX ASSIGNMENT

41

19.01

Prohibited Transfers and Assignments

41

19.02

Permitted Assignments and Transfers

41

ARTICLE XX MISCELLANEOUS

42

20.01

Notices

42

20.02

Entire Agreement

43

20.03

Parties Bound

44

20.04

Amendments

44

20.05

Waivers

44

20.06

Choice of Law

44

20.07

Headings

44

20.08

Relationship of Parties

44

20.09

Severability

45

20.10

No Third Party Beneficiaries

45

20.11

Further Assurances

45

20.12

Conflict of Interest

45

20.13

Counterparts

45

 

 

 

 

 

 

 

 

 

 

 

 

                                                                             iv

   


 


 

 

EXECUTION COPY

 

 

 

 

 

EXHIBITS

 

Exhibit A

Description of Transmission Facilities and Common Facilities

 

Exhibit B

[Intentionally omitted.]

 

Exhibit C

Ownership Interests

 

Exhibit D

[Intentionally omitted.]

 

Exhibit E

Construction Budget

 

Exhibit F

Monthly Transmission Facilities O&M Charge

 

and Monthly Common Facilities Charge

 

Exhibit G

Point of Interconnection

 

Exhibit H

Milestones

 

 

 

SCHEDULES

 

Schedule 13.01(f)

PacifiCorp’s Outstanding Governmental Authorizations

Schedule 13.02(f)

Idaho Power’s Outstanding Governmental Authorizations

 

 

                                                                             v

   


 


 

 

EXECUTION COPY

 

 

HEMINGWAY JOINT OWNERSHIP AND OPERATING AGREEMENT

 

This Hemingway Joint Ownership and Operating Agreement, dated this 3 rd day of May, 2010 (the “ Execution Date ”), is between Idaho Power Company, an Idaho corporation, acting in its regulated transmission provider function (“ Idaho Power ”), and PacifiCorp, an Oregon corporation, acting in its regulated transmission provider function (“ PacifiCorp ”).  Each of Idaho Power and PacifiCorp are sometimes hereinafter referred to individually as “ Owner ” and collectively as “ Owners ”.

RECITALS:

WHEREAS, Idaho Power owns and operates certain facilities for the transmission of electric power and energy in interstate commerce, including the Hemingway substation (the “ Hemingway Substation ”) which Idaho Power is currently constructing approximately 10 miles southwest of Melba, Idaho to provide additional transfer capability for power to serve Idaho Power’s retail and wholesale customers, including power to serve Idaho Power’s Treasure Valley electric load, and to provide line terminal connections for additional transmission lines including the Gateway West Transmission Project and Boardman-Hemingway Project;

WHEREAS, PacifiCorp owns and operates certain facilities for the transmission of electric power and energy in interstate commerce, including the Midpoint-Summer Lake Line (as defined below) which is located near the Hemingway Substation;

WHEREAS, Idaho Power and PacifiCorp believe that interconnecting the Idaho Power Transmission System at the Hemingway Substation with the PacifiCorp Transmission System on the Midpoint-Summer Lake Line will benefit both of the Owners and their customers;

WHEREAS, Idaho Power and PacifiCorp are parties to that certain Joint Purchase and Sale Agreement, dated as of April 30, 2010 (the “ JPSA ”), pursuant to which Idaho Power has sold to PacifiCorp and PacifiCorp has purchased from Idaho Power an undivided ownership interest in certain transmission and interconnection equipment and facilities at the Hemingway Substation used in connection with the transmission of electric power and energy (consisting of the equipment and facilities described in Section I of Exhibit A that were installed at the Hemingway Substation on or before the Closing Date, the “ Transferred Transmission Facilities ”);

WHEREAS, Idaho Power individually owns additional equipment and facilities at the Hemingway Substation that serve the Idaho Power Transmission System and will not be part of the Transmission Facilities (as defined below), but that Idaho Power will make available to support the operation of the Transmission Facilities (as further described in Section II of Exhibit A , the “ Common Facilities ”);

WHEREAS, Idaho Power individually owns additional equipment and facilities at the Hemingway Substation that will not be part of the Transmission Facilities, jointly owned by the Parties, or part of the Common Facilities used to support the operation of the Transmission Facilities (the “ Idaho Power Individually-Owned Hemingway Facilities ”); and

                                                                                                           


 


 

 

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WHEREAS, PacifiCorp and Idaho Power desire to memorialize the terms and conditions by which they will: (i) construct and commission additional transmission and interconnection equipment and facilities at the Hemingway Substation used in connection with the transmission of electric power and energy (consisting of the equipment and facilities described in Section I of Exhibit A that had not been installed at the Hemingway Substation on or before the Closing Date, the “ Jointly-Developed Transmission Facilities ”); (ii) jointly own and develop the Transferred Transmission Facilities and the Jointly-Developed Transmission Facilities (collectively, the “ Transmission Facilities ”), (iii) operate and maintain the Transmission Facilities; (iv) interconnect the Idaho Power Transmission System and the PacifiCorp Transmission System at the Hemingway Substation; and (v) establish the obligations of the Operator (as defined below) with respect to compliance with Reliability Standards (as defined below) applicable to the Transmission Facilities.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, PacifiCorp and Idaho Power agree as follows:

ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION

1.01          Definitions .  Unless the context otherwise requires, the following capitalized terms have the meanings given to them below:

Affected Party ” has the meaning given to such term in Section 11.01 .

Affected System ” has the meaning given to such term in the applicable Owner’s OATT.

Affected System Operator ” has the meaning given to such term in the applicable Owner’s OATT.

Affiliate ” means, with respect to a Person, each other Person that, directly or indirectly, controls, is controlled by or is under common control with, such designated Person; provided , however , that in the case of PacifiCorp, “ Affiliate ” means MidAmerican Energy Holdings Company and its direct and indirect subsidiaries.  For the purposes of this definition, “ control ” (including with correlative meanings, the terms “ controlled by ” and “ under common control with ”), as used with respect to any Person, shall mean (i) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (ii) the right to direct the policies or operations of such Person.

Agreement ” means this Joint Ownership and Operating Agreement (including all Exhibits attached hereto), as the same may be amended and supplemented from time to time in accordance with the terms hereof.

Amendment ” has the meaning given to such term in Section 7.01(a) .

Approved Courts ” has the meaning given to such term in Section 18.04 .

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Bankrupt ” means, with respect to any Person, that such Person:   (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes insolvent (however evidenced), (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (v) is generally unable to pay its debts as they fall due.

Business Days ” means any day except a Saturday, Sunday and any day which is a legal holiday or a day on which banking institutions in New York, New York are authorized or obligated by Governmental Requirements to close.

Capacity Share ” has the meaning given to such term in Section 4.02 .

Capital Upgrade Notice ” has the meaning given to such term in Section 7.01 .

 “ Claims ” has the meaning given to such term in Section 14.01(a) .

Closing Date ” has the meaning given to such term in the JPSA.

Code ” has the meaning given to such term in Section 17.02 .

Commercially Reasonable Efforts ” means the level of effort that a reasonable electric utility would take in light of the then known facts and circumstances to accomplish the required action at a then commercially reasonable cost (taking into account the benefits to be gained thereby).

Common Facilities ” has the meaning given to such term in the recitals.

Construction Budget ” has the meaning given to such term in Section 3.05(b) .

Construction Costs ” has the meaning given to such term in Section 3.05(a) .

Construction Costs Cap ” has the meaning given to such term in Section 3.05(b) .

Construction Project ” has the meaning given to such term in Section 3.01(a) .

Continuing Owner ” has the meaning given to such term in Section 8.03 .

Costs ” means, with respect to the Operator’s construction of facilities pursuant to this Agreement, including the Transmission Facilities and capital upgrades and improvements thereto, or such construction on behalf of the Operator, the Operator’s actual cost of (i) preliminary surveys and investigations and property acquisitions in connection with such facilities and (ii) the development, design, engineering, procurement and construction of such facilities, including an allowance for funds used during construction and applicable overheads determined in accordance with the Operator’s customary practices, as calculated in accordance with FERC’s Uniform System of Accounts.

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Damaged Facilities ” has the meaning given to such term in Section 8.01 .

Damage Notice ” has the meaning given to such term in Section 8.01 .

Decommissioning Notice ” has the meaning given to such term in Section 9.03 .

Defaulting Owner ” has the meaning given to such term in Section 12.01 .

Delegate ” has the meaning given to such term in Section 5.04 .

Dispute ” has the meaning given to such term in Section 18.01 .

Dispute Notice ” has the meaning given to such term in Section 18.02 .

Disputing Party ” has the meaning given to such term in Section 18.02 .

Electing Owner ” has the meaning given to such term in Section 7.01(a) .

Event of Default ” has the meaning given to such term in Section 12.01 .

Execution Date ” has the meaning given to such term in the preamble.

Executive(s) ” has the meaning given to such term in Section 18.03(a) .

FERC ” means the Federal Energy Regulatory Commission.

FERC Methodology ” has the meaning given to such term in Section 5.08(b) .

FERC Uniform System of Accounts ” means the Uniform System of Accounts Prescribed for Public Utilities and Licensees Subject to the Jurisdiction of the Federal Power Act prescribed by FERC, and codified as of the Execution Date at 18 C.F.R. Part 101, as the same may be amended from time to time.

Force Majeure ” has the meaning given to such term in Section 11.01 .

Good Utility Practice ” means any of the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, would have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition.  Good Utility Practice is not intended to be limited to the optimum practice, method, or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts generally accepted in the region, including those practices required by Federal Power Act section 215(a)(4), 16 U.S.C. § 824o(a)(4)(2006).

Governmental Authority ” means any federal, state, local or municipal governmental body; any governmental, quasi-governmental, regulatory or administrative agency, commission, body or other authority exercising or entitled to exercise any administrative, executive, judicial,

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legislative, policy, regulatory or taxing authority or power, including FERC, NERC or any regional reliability council; or any court or governmental tribunal, in each case, having jurisdiction over either Owner (including Idaho Power in its capacity as Operator) or any of its Affiliates or the ownership, use, operation and maintenance, repair and reconstruction, or retirement and decommissioning of all or a portion of the Transmission Facilities.

Governmental Authorizations ” means any license, permit, order, approval, filing, waiver, exemption, variance, clearance, entitlement, allowance, franchise, or other authorization from or by a Governmental Authority.

Governmental Requirements ” means all laws, statutes, ordinances, rules, regulations, codes, and similar acts or promulgations or other legally enforceable requirements of any Governmental Authority.

Hemingway Access Easement Agreement ” means the Hemingway Access Easement Agreement, dated as of approximately even date herewith, entered into by Idaho Power and PacifiCorp.

Hemingway Substation ” has the meaning given to such term in the recitals.

Hemingway-Summer Lake Line ” means, beginning on the date the Interconnection is energized, the 500 kV transmission line extending from the Hemingway Substation to its terminus at the Summer Lake Substation.

Idaho Power ” has the meaning given to such term in the preamble.

Idaho Power Transmission System ” means the transmission facilities owned, controlled or operated by Idaho Power that are used to transmit electricity to Idaho Power’s retail and wholesale electric service customers.

Idaho Power Individually-Owned Hemingway Facilities ” has the meaning given to such term in the recitals.

Indemnified Party ” has the meaning given to such term in Section 14.01(a) .

Indemnifying Party ” has the meaning given to such term in Section 14.01(a) .

Interconnection ” means the interconnection of the Hemingway Substation with (i) the Midpoint-Hemingway Line, (ii) the Hemingway-Summer Lake Line, and (iii) the Hemingway 500/230 kV transformer at the Point of Interconnection, in each case, as more specifically described in the diagrams set forth in Exhibit G .

Interconnection Customer ” has the meaning given to such term in the applicable Owner’s OATT.

Interconnection Owner ” has the meaning given to such term in Section 6.03 .

Interrupting Owner ” has the meaning given to such term in Section 10.05(c) .

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Jointly-Developed Transmission Facilities ” has the meaning given to such term in the recitals.

JPSA ” has the meaning given to such term in the recitals.

Losses ” mean any and all damages and losses, deficiencies, liabilities, taxes , obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses, whether or not resulting from third party claims, including the costs and expenses of any and all actions and demands, assessments, judgments, settlements and compromises relating thereto and the costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder and costs and expenses of remediation (including, in the case of remediation, all expenses and costs associated with financial assurance); provided , however , that in no event shall Losses include lost profits or damages and losses excluded under Section 14.08 .

 

Manager ” has the meaning given to such term in Section 18.03(a) .

Metering Equipment ” means all metering facilities and equipment to be constructed and installed as part of the Transmission Facilities, as further described in Exhibit A .

Midpoint Substation ” means the existing substation near Jerome, Idaho owned by PacifiCorp.

Midpoint-Hemingway Line ” means, beginning on the date the Interconnection is energized, the 500 kV transmission line extending from the Midpoint Substation to its terminus at the Hemingway Substation.

Midpoint-Summer Lake Line ” means (i) with respect to the period beginning on the Execution Date and continuing up to but not including the date the Interconnection is energized, the existing 500 kV transmission line extending from the Midpoint Substation to the Summer Lake Substation, and (ii) with respect to the period beginning on the date the Interconnection is energized through the Term, the Midpoint-Hemingway Line and the Hemingway-Summer Lake Line.

Monthly Common Facilities Charge ” has the meaning set forth in Exhibit F .

Monthly Transmission Facilities O&M Charge ” has the meaning set forth in Exhibit F .

NERC ” means the North American Electric Reliability Council.

Non-Defaulting Owner ” means an Owner that is not a Defaulting Owner.

Non-Operating Owner ” means PacifiCorp.

OATT ” means, with respect to each Owner, the Owner’s Open Access Transmission Tariff on file with FERC.

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Operator ” means Idaho Power Company, in its capacity as Operator under this Agreement.

Other Costs ” has the meaning given to such term in Section 5.08(a) .

Other Costs Records ” has the meaning given to such term in Section 5.06(b) .

Owner ” and “ Owners ” has the meaning given to such term in the preamble.

Ownership Interest ” means the tenant-in-common undivided ownership interest of an Owner in the Transmission Facilities which is set forth on Exhibit C , as the same may be adjusted from time to time pursuant to Exhibit C .

PacifiCorp ” has the meaning given to such term in the preamble.

PacifiCorp Transmission System ” means the transmission facilities owned, controlled or operated by PacifiCorp that are used to transmit electricity to PacifiCorp’s retail and wholesale electric service customers.

Party ” means Idaho Power or PacifiCorp individually, and “ Parties ” means Idaho Power and PacifiCorp collectively.

Person ” means an individual, partnership, corporation, limited liability company, joint venture, association, trust, unincorporated organization, Governmental Authority, or other form of entity.

Point of Interconnection ” means the points of interconnection between the Transmission Facilities and each of the Owners’ Transmission Systems, as described in the diagrams set forth in Exhibit G .

Proprietary Information ” has the meaning given to such term in Section 15.06 .

Qualified Owner ” means an Owner that has an OATT on file with FERC under which it is authorized to provide transmission service on its transmission system.

Reduction Event ” has the meaning given to such term in Section 6.02 .

Regulations ” has the meaning given to such term in Section 17.02 .

Reliability Standards ” means all reliability criteria for system users established by WECC or such other regional or national standard setting body with authority to promulgate or set such criteria (including NERC’s reliability standards), as such criteria may be adopted or modified from time to time.

Remaining Owner ” has the meaning given to such term in Section 9.03 .

 

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Representatives ” means, in respect of an Owner or Operator, the directors, officers, shareholders, partners, members, employees, agents, consultants, contractors or other representatives of such Owner or Operator.

Rights-of-Way ” means all rights-of-way, easements and other interests (including fee interests) in real property on which the Transmission Facilities are or will be constructed that are owned by Idaho Power or its Affiliates.

Summer Lake Substation ” means the existing substation near Summer Lake, Oregon owned by PacifiCorp.

Tap Line Upgrades ” has the meaning given to such term in Section 7.01(f) .

Tax Indemnifying Party ” has the meaning given to such term in Section 17.04 .

Tax Indemnitee Party ” has the meaning given to such term in Section 17.04 .

Taxes ” has the meaning given to such term in Section 17.03 .

Term ” has the meaning given to such term in Section 2.03 .

Transferee ” has the meaning given to such term in Section 15.01 .

Transferor ” has the meaning given to such term in Section 15.01 .

Transferred Transmission Facilities ” has the meaning given to such term in the recitals.

Transmission Facilities ” has the meaning given to such term in the recitals.

Transmission Facilities Contracts ” means (i) the “Hemingway Substation Facilities Contracts” as defined in the JSPA, (ii) the Right-of-Way Grant IDI-36034 from the United States Department of Interior, Bureau of Land Management to Idaho Power, dated as of June 4, 2009, with respect to portions of the Hemingway Substation site, and (iii) each agreement, instrument or other contract relating to or in connection with the Transmission Facilities that the Operator enters into pursuant to this Agreement.

 

Transmission System ” means, in the case of Idaho Power, the Idaho Power Transmission System, and, in the case of PacifiCorp, the PacifiCorp Transmission System.

Unauthorized Use ” means the unauthorized use of the generation or transmission facilities of any other Person.

WECC ” means the Western Electricity Coordinating Council or any successor thereto.

WIS Agreement ” has the meaning given to such term in Section 14.08(b) .

 

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1.02          Rules of Construction .  The following rules of interpretation shall apply in this Agreement:

(a)                The masculine shall include the feminine and neuter.

(b)               References to “Articles,” “Sections” and “Exhibits” shall be to articles, sections and exhibits of this Agreement.

(c)                The Exhibits attached hereto are incorporated in and are intended to be a part of this Agreement.

(d)               This Agreement was negotiated and prepared by both Parties with the advice and participation of counsel.  The Parties have agreed to the wording of this Agreement and none of the provisions hereof shall be construed against one Party on the ground that such Party is the author of this Agreement or any part hereof.

(e)                Each reference in this Agreement to any agreement or document or a portion or provision thereof shall be construed as a reference to the relevant agreement or document as amended, supplemented or otherwise modified from time to time with the written approval of both the Parties.

(f)                Each reference in this Agreement to Governmental Requirements and to terms defined in, and other provisions of, Governmental Requirements shall be references to the same (or a successor to the same) as amended, supplemented or otherwise modified from time to time.

(g)               The term “day” shall mean a calendar day, the term “month” shall mean a calendar month, and the term “year” shall mean a calendar year.  Whenever an event is to be performed, a period commences or ends, or a payment is to be made on or by a particular date and the date in question falls on a day which is not a Business Day, the event shall be performed, or the payment shall be made, on the next succeeding Business Day; provided, however , that all calculations shall be made regardless of whether any given day is a Business Day and whether or not any given period ends on a Business Day.

(h)               Each reference in this Agreement to a Person includes its successors and permitted assigns; and each reference to a Governmental Authority includes any Governmental Authority succeeding to its functions and capacities.

(i)                 In this Agreement, the words “include,” “includes” and “including” are to be construed as being at all times followed by the words “without limitation.”

(j)                 The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall, unless otherwise specified, refer to this Agreement as a whole and not to any particular provision of this Agreement.

 

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ARTICLE II
TERM

2.01          Effectiveness of this Agreement .  This Agreement shall become effective upon the Execution Date.

2.02          FERC Filing .  Within five (5) Business Days after the Execution Date, the Operator, on behalf of the Owners, shall file this Agreement with FERC as a “ Rate Schedule ” within the meaning of Part 35 of FERC’s regulations.  Each of the Owners shall support this Agreement in its current form at FERC when filed.  Each Owner shall reasonably cooperate with the Operator with respect to obtaining FERC approval of such FERC filing and provide any information, including testimony, reasonably required by the Operator to comply with the applicable FERC filing requirements.

2.03          Term .  The term of this Agreement (“ Term ”) shall commence upon the Execution Date and shall continue in full force and effect until terminated in accordance with the provisions hereof.

2.04          Termination .  Subject to Section 2.05 , this Agreement shall terminate if one or more of the following events occur:

(a)                the Transmission Facilities are damaged and destroyed and the Owners decide not to repair or rebuild (or cannot reach agreement to repair or rebuild) the Damaged Facilities in accordance with Article VIII ;

(b)               the Transmission Facilities are retired and decommissioned in accordance with Article IX ;

(c)                all of the Ownership Interests in the Transmission Facilities are owned by only one Owner;

(d)               by mutual written agreement of the Owners; or

(e)                this Agreement is terminated by exercise of remedies pursuant to Section 12.03 .

2.05          Effect of Termination .

(a)                If this Agreement is terminated pursuant to Section 2.04 , then, except as for those provisions that are expressly intended to survive termination and, subject to Section 2.05(b) and receipt of any necessary Governmental Authorizations required by applicable Governmental Requirements, this Agreement shall terminate and become void and of no further force and effect, without further action by either Party, provided that neither Party shall be relieved from any of its obligations or liabilities hereunder accruing prior thereto.

(b)               In the event that this Agreement is terminated pursuant to Section 2.04 and the Non-Operating Owner continues to own all or a portion of the Ownership Interests in the Transmission Facilities, then:  (i) the Operator shall, upon written notice from the Non-Operating

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Owner delivered to the Operator no later than fifteen (15) Business Days after termination of this Agreement pursuant to Section 2.04 , continue to perform such of its obligations and covenants in Articles VI , VII , VIII , X and XVI as are set forth in the notice; (ii) such obligations and covenants, together with Articles V , VI , VII , VIII , XI , X , XII , XIV , XV , XVIII , XIX and XX (to the extent applicable to the surviving covenants and obligations), shall continue in full force and effect notwithstanding the termination of this Agreement; and (iii) the Parties shall amend this Agreement to reflect such changes to this Agreement as shall be necessary and mutually acceptable to the Parties to conform this Agreement to the surviving provisions of this Agreement in accordance with this Section 2.05(b) .

ARTICLE III
CONSTRUCTION

3.01          Engineering, Design and Construction of the Jointly-Developed Transmission Facilities .

(a)                The Operator shall design, engineer, procure, construct, install, manage and perform all other activities necessary for the development, construction and commissioning  of the Jointly-Developed Transmission Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations (the “ Construction Project ”).

(b)               The Operator shall use Commercially Reasonable Efforts to achieve each of the milestones by its respective milestone date as set forth in Exhibit H .  The Operator shall provide the Owners with prompt written notice of the date upon which it has achieved each milestone.

3.02          Interconnection .  PacifiCorp shall take the Midpoint-Summer Lake Line out of service for approximately three consecutive weeks during May, 2010 to enable the Operator to interconnect the Transmission Facilities with the Midpoint-Summer Lake Line.  The Operator shall submit a request to PacifiCorp for the specific dates of the outage, the approval of which shall not be unreasonably withheld by PacifiCorp.  The Owners and the Operator recognize the need to use Commercially Reasonable Efforts to expedite all work with all due diligence, consistent with Good Utility Practice , so as to minimize outage times.

3.03          Rights-of-Way .  The Operator shall maintain the Rights-of-Way in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.

3.04          Monthly Reports .  Each month prior to the final completion and commissioning of the Transmission Facilities, the Operator shall prepare and deliver to the Owners reasonably detailed status reports, in form and substance reasonably acceptable to the Owners, regarding the implementation of the Construction Project, including (i) any expected delays (and their duration) in achieving any milestone by the respective milestone date as set forth on Exhibit H and (ii) the aggregate amount of Construction Costs incurred to date compared to the budgeted amount of Construction Costs set forth in the Construction Budget.

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3.05          Development and Construction Costs

(a)                Each Owner shall be responsible for, and shall pay, in accordance with this Section 3.05 , its pro rata share (based on its Ownership Interest) of all Costs (up to the Construction Costs Cap) actually incurred by or on behalf of the Operator in the performance of the Construction Project pursuant to Article III or otherwise incurred by or on behalf of Idaho Power in the construction of the Transmission Facilities (collectively, the “ Construction Costs ”).

(b)               The Operator shall promptly notify the Owners in writing if it reasonably believes that the total Construction Costs to be incurred by or on behalf of the Operator or otherwise incurred by or on behalf of Idaho Power in the construction of the Transmission Facilities will exceed the greater of (i) five percent (5%) of the aggregate amount of Construction Costs provided for in the budget attached hereto as Exhibit E (the “ Construction Budget ”), as the same may be revised from time to time pursuant to this Section 3.05(b ), and (ii) One Million Four Hundred Thousand Dollars ($1,400,000) (the “ Construction Costs Cap ”).  Thereafter, the Operator shall submit to the Owners for their approval, such approval not to be unreasonably withheld or delayed, a revised Construction Budget which shows the aggregate amount of Construction Costs that the Operator reasonably believes will be incurred by or on behalf of the Operator to complete the Construction Project in accordance with Article III or otherwise incurred by or on behalf of Idaho Power in the construction of the Transmission Facilities.  The notice and approval rights set forth above in this Section 3.05(b) shall apply to the revised Construction Budget as well.  Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Operator be obligated to incur Construction Costs in excess of the Construction Costs Cap.

(c)                The Operator shall provide the Owners with invoices showing each Owner’s pro rata share (based on its Ownership Interest) of the Construction Costs, and the Non-Operating Owner shall pay the Operator its pro rata share (based on its Ownership Interests) of the Construction Costs, in accordance with Section 5.08 and Section 5.09 .

ARTICLE IV
OWNERSHIP INTERESTS

4.01          Ownership Interests .

(a)                Pursuant to the JPSA, as of the Closing Date, each Owner owns an undivided ownership interest, equal to its Ownership Interest, in the Transmission Facilities.

(b)               The Owners agree that they shall enter into such additional documentation as shall reasonably be required to document any change in the Ownership Interests of the Owners contemplated hereby, provided that in no event shall an Owner be responsible for paying any amount to the other Owner as a result of any change in any Ownership Interest or the Transmission Facilities except as expressly provided for in this Agreement or as otherwise agreed to by the Parties in writing.

4.02          Owner’s Capacity Share .  Each of the Owners shall be entitled to a pro rata share (based on its Ownership Interest) of the bi-directional transmission capacity of the Transmission

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Facilities (“ Capacity Share ”).  Subject to Section 6.02 , each Owner’s Capacity Share entitles the Owner to provide and schedule transmission service over the Transmission Facilities to the extent of the Owner’s Capacity Share and to schedule and transmit an amount of energy commensurate with the Owner’s Capacity Share over the Transmission Facilities on its own behalf or on behalf of the Owner’s transmission customers; provided , however , that at no time shall an Owner be entitled to post, sell, schedule or transmit more than its Capacity Share of transmission capacity (and a commensurate amount of energy) on the Transmission Facilities, unless otherwise mutually agreed to in writing by the Owners.  Any use of the Transmission Facilities, other than as provided for in this Section 4.02 , shall be subject to the prior written approval of both Owners.

 

4.03          Qualified Owner .  Each Owner shall take all actions required to continue to be a Qualified Owner during the Term.  If at any time during the Term an Owner ceases to be a Qualified Owner, then such Owner shall immediately provide notice thereof to the other Owner and take all actions required to resume being a Qualified Owner.

4.04          No Right to Use .  For the avoidance of doubt, the provisions of this Agreement shall not confer upon either Owner the right to use or transmit energy over any transmission facilities owned by the other Owner (other than the Transmission Facilities as provided for herein).

4.05          Payments .  All payments required to be made by or on behalf of the Owners under the terms of this Agreement, including payments to the Operator of the Monthly Transmission Facilities O&M Charge, the Monthly Common Facilities Charge and Other Costs, shall be made to the account or accounts designated by the Owner or Operator to which the payment is owed, by wire transfer (in immediately available funds in the lawful currency of the United States).

4.06          Waiver of Partition Rights .  The Owners shall own their undivided Ownership Interests in the Transmission Facilities as tenants-in-common.  The Owners acknowledge that any exercise of the remedy of partition (whether at law or in equity) of the Transmission Facilities or any portion thereof would be impracticable in view of the purposes and requirements of this Agreement, would violate the spirit and intent of this Agreement, and would defeat the Owners’ intentions and reasonable expectations as well as the consideration upon which each Owner entered into this Agreement.  Accordingly, each Owner agrees that during the Term it (a) will not, directly or indirectly, commence, maintain, support or join in any action or proceedings of any kind to partition the Transmission Facilities or any portion thereof, and (b) waives, after consultation with its qualified legal counsel, any and all rights that it may have under this Agreement or applicable Governmental Requirements (whether at law or in equity) or otherwise to commence, maintain, support or join in any such action or proceeding.  Each Owner acknowledges that the other Owner has entered into and will perform the terms of this Agreement in reliance upon the other Owner’s agreement and adherence to the terms of this Section 4.06 , and would not have entered into this Agreement but for such reliance; and that it would be unjust and inequitable for any Owner to violate or to seek relief from any provision of this Section 4.06 .

 

 

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ARTICLE V
OPERATOR

5.01          Appointment of Operator .

(a)                The Owners hereby appoint Idaho Power, and Idaho Power hereby accepts appointment, to serve as Operator of the Transmission Facilities and the Common Facilities for the Owners and to perform the other covenants and obligations of the Operator expressly set forth in this Agreement, in accordance with the terms and conditions of this Agreement.

(b)               Notwithstanding anything to the contrary contained in this Agreement or Governmental Requirements, the Owners agree that the Operator shall have no obligations, responsibilities or duties to the Owners other than as are expressly provided for in this Agreement.

5.02          Authority of Operator .

(a)                The Operator shall be responsible in all respects for the construction of the Jointly-Developed Transmission Facilities and the operation and maintenance of the Transmission Facilities and the Common Facilities in accordance with Article III and Articles V-X .  Without limiting the foregoing, the Operator shall supervise and perform, or cause to be supervised and performed:  (i) the construction of the Jointly-Developed Transmission Facilities in accordance with Article III and this Article V , (ii) the physical operation and maintenance of, interconnection to, design of, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of, the Transmission Facilities in accordance with this Article V and Articles VI-X , and (iii) the physical operation and maintenance of the Common Facilities in accordance with Section 6.04 .  In the performance of its obligations under this Agreement, the Operator shall have authority, subject to the other terms of this Article V and Article III and Articles VI-X , to take any or all of the actions it reasonably determines are necessary to perform its obligations under this Agreement, including to make decisions on all matters relating to and to contract for, select and purchase on behalf of the Owners all materials, equipment and services (including from third-party consultants and advisors) necessary for:  (A) the engineering, design and construction of the Jointly-Developed Transmission Facilities pursuant to Article III , (B) the physical operation and maintenance of the Transmission Facilities pursuant to Article VI ; (C) the interconnection of Interconnection Customers to the Transmission Facilities pursuant to Section 6.03 ; (D) the development, design, engineering, procurement, construction, permitting, completion, testing and commissioning of capital upgrades or improvements to the Transmission Facilities pursuant to Article VII ; (E) the development, design, engineering, procurement, construction, permitting, completion, testing and commissioning of repairs to and reconstruction of the Transmission Facilities pursuant to Article VIII ; and (F) the retirement and decommissioning of the Transmission Facilities pursuant to Article IX.

(b)               The Owners and the Operator agree that title to all Jointly-Developed Transmission Facilities and capital upgrades and improvements constructed by or on behalf of the Operator pursuant to Section 6.01 shall vest with the Owners and shall be jointly owned by the Owners as tenants-in-common in accordance with their respective Ownership Interests.  Title to

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all capital upgrades and improvements constructed by or on behalf of the Operator pursuant to Section 7.01 shall vest with and be owned by the Owners in accordance with Section 7.01 .

(c)                The Operator will exercise or enforce all of Idaho Power’s benefits, rights and remedies under the Transmission Facilities Contracts for the benefit of the Owners pro rata (in accordance with their respective Ownership Interests) and without adverse distinction between the Owners.  In furtherance and not in limitation of the immediately preceding sentence, the Operator agrees to transfer, assign, distribute, pay over or otherwise make available to the Non-Operating Owner, the Non-Operating Owner’s pro rata share (based on its Ownership Interest) in any payments or proceeds obtained pursuant to any Transmission Facilities Contract.  Notwithstanding anything to the contrary contained in this Agreement, the Owners agree that only the Operator shall be entitled to exercise or enforce Idaho Power’s benefits, rights and remedies under the Transmission Facilities Contracts.

5.03          Standard of Work .  The Operator shall perform all of its obligations under this Agreement as an independent contractor and in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.

5.04          Delegation of Responsibilities .  The Operator may, in its sole and absolute discretion, delegate all or a portion of its obligations under this Agreement to one or more Persons (each, a “ Delegate ”).  Notwithstanding any such delegation, the Operator shall remain responsible and liable for all such delegated obligations in accordance with the terms of this Agreement.

5.05          Governmental Authorizations .

(a)                The Operator is authorized to prepare and submit to all appropriate Governmental Authorities the necessary reports, applications, plans, specifications and other documents to procure all Governmental Authorizations required to perform its obligations under this Agreement with respect to the Transmission Facilities or to comply with Governmental Requirements, provided that the Operator shall consult with the Owners prior to the submission of any such reports, application, plans, specification and other documents.  To the extent permitted by Governmental Requirements, the Operator shall use Commercially Reasonable Efforts to obtain and structure all Government Authorizations for which it applies after the Execution Date in such a way as to recognize each Owner’s applicable Ownership Interests and Capacity Share as contemplated by this Agreement.  Notwithstanding anything to the contrary in this Agreement, nothing in Section 5.05 shall obligate the Operator to prepare and submit to appropriate Governmental Authorities any reports, applications, plans, specifications and other documents to procure any Governmental Authorizations required by the Owners in connection with their ownership of an Ownership Interest in the Transmission Facilities or the recovery of any costs and expenses in connection therewith.

(b)               To the extent that the Operator cannot obtain a Governmental Authorization pursuant to Section 5.05(a) on behalf of one or both of the Owners, each such Owner shall:  (i) be responsible for preparing and submitting to the appropriate Governmental Authority the necessary reports, applications, plans, specifications and other documents to

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procure such Governmental Authorization; and (ii) exercise all Commercially Reasonable Efforts to obtain such Governmental Authorization.  Unless and until the Owner or Owners are able to obtain such Governmental Authorizations, the Operator shall not perform or continue to perform any of the Construction Project if to do so would result in the Owner or Owners being in violation of applicable Governmental Requirements or Governmental Authorizations.

(c)                Each Owner shall, at its own cost: (i) reasonably cooperate and support the Operator in obtaining any Governmental Authorizations required pursuant to Section 5.05(a) ; and (ii) reasonably respond to inquiries or requests issued to it by any Governmental Authority in respect of such Governmental Authorization; provided , however , that an Owner shall not be obligated pursuant to this Section 5.05(c) to disclose Proprietary Information except to the extent that it is otherwise required to disclose such Proprietary Information:  (A) by applicable Governmental Requirements; (B) by any Governmental Authority; or (C) pursuant to the express terms of this Agreement.

5.06          Access .

(a)                The Operator shall, to the extent possible under any Rights-of-Ways, provide each Owner and its designees reasonable access to the Transmission Facilities site to permit the Owners and their designees to inspect the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities, provided that (i) the Owners and their designees do not interfere with the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities or any portion thereof or pose a safety hazard; (ii) the Owners and their designees comply with any requirements of any rights-of-ways, license, easement or other real property interest agreement applicable to the Transmission Facilities; and (iii) the Owners and their designees performing the inspection comply with the Operator’s or any other contractor’s safety and security rules, as more specifically set out in the Hemingway Access Easement Agreement.

(b)               Each Owner may, at its cost, at any time during normal business hours and with reasonable prior notice of not less than ten (10) Business Days, but not more often than once in any twelve (12) month period, inspect and audit the books and records of the Operator and any of its Affiliates and any Delegate (and the Operator shall secure such rights for the Owners from its Affiliates and any Delegate) involved in the provision of services pursuant to this Agreement (“ Other Costs Records ”), to the extent reasonably relating to the determination of the Other Costs for which the Owners are liable under this Agreement as shown on an invoice provided to the Owners pursuant to Section 5.08 within twelve (12) months prior to the date of the audit notice.  The Operator shall, and shall cause any of its relevant Affiliates and any Delegate, to keep and maintain all such Other Costs Records to the extent reasonably relating to the determination of the Other Costs for which the Owners are liable under this Agreement and make such Other Costs Records available to the Owners in accordance with the terms of this Agreement.  If any audit discloses that, during such twelve (12)-month period, an overpayment or underpayment of Other Costs has been made by the Non-Operating Owner or the amount of any Other Costs allocated to the Owners on an invoice is incorrect, then such overpayment, underpayment or incorrect amount shall be resolved pursuant to Section 5.09 .  The Owner

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requesting the audit shall reimburse one hundred percent (100%) of all reasonable costs and expenses (including internal costs and expenses) incurred by or on behalf of the Operator and any of its Affiliates and any Delegate in complying with the provisions of this Section 5.06(b) , provided that the Owner shall not be required to reimburse any such costs if the audit determines that the Owner has made more than Twenty-Five Thousand Dollars ($25,000) in overpayments of Other Costs or more than Twenty-Five Thousand Dollars ($25,000) in Other Costs have been incorrectly allocated to the Owner.

5.07          Insurance .

 

(a)        Owner Insurance .  Each of the Owners shall be responsible for obtaining and maintaining during the Term insurance covering their respective legal liabilities related to their Ownership Interest in the Transmission Facilities.  Insurance required by this Section 5.07(a) will be placed with appropriate carriers and in amounts in accordance with Good Utility Practice and any applicable Governmental Requirements.

 

(b)        Property Insurance .

 

(i)         The Operator, on behalf of the Owners and any other named insureds or loss payees, will:  (A) determine the appropriate property insurance coverages, minimum amounts, self-insured amounts, deductibles and other insurance policy terms; (B) obtain and maintain such property insurance during the Term; and (C) be solely responsible for pursuing claims and/or negotiating settlements in respect of claims under such insurance coverages.  The Operator shall be compensated for the costs of obtaining and maintaining such insurance (including any premiums, taxes, and fees, deductibles, self-insurance or non-insured costs) through the Monthly Transmission Facilities O&M Charge.

 

(ii)        Physical damage to substations and equipment therein that is included as part of the Transmission Facilities in types and amounts that are reasonable and customary for similarly situated utilities.  Coverage may be insured or self-insured, or any combination of insured and self-insured.

 

(iii)       Insurance for physical damage to the transmission line and any related equipment outside the boundaries of any substation and included as part of the Transmission Facilities shall be fully self-insured.

 

5.08          Invoices .

(a)                The Non-Operating Owner shall pay the Operator the Monthly Transmission Facilities O&M Charge and the Monthly Common Facilities Charge calculated in accordance with Exhibit F as compensation for the Operator’s services under this Agreement.  Each Owner shall be responsible for its pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise or this Agreement specifies otherwise) of costs incurred by or on behalf of the Operator under Sections 3.05(a) , 6.01(c) , 7.01(b) , 7.01(f) , 8.01 , 8.05(b) , 9.02 and 17.03 (the “ Other Costs ”). In the event that the Operator incurs, or reasonably expects to incur, significant Other Costs (other than Construction Costs) in excess of One

 

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Hundred Thousand Dollars ($100,000), it shall immediately notify the Owners in writing of such Other Costs.

(b)               Not later than thirty (30) days after the end of each month during the Term, the Operator will deliver to the Owners an invoice which will show the Monthly Transmission Facilities O&M Charge and Monthly Common Facilities Charge payable by the Non-Operating Owner and each Owner’s pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise) of Other Costs.  The Non-Operating Owner shall pay the Monthly Transmission Facilities O&M Charge, the Monthly Common Facilities Charge, and its pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise) of Other Costs shown on the invoice no later than thirty (30) days after the date of the invoice.  Any payment past due will accrue interest, per annum, calculated in accordance with the methodology specified for interest in the FERC regulations at 18 C.F.R. § 35.19a(a)(2)(iii) (the “ FERC Methodology ”).  The failure by the Operator to timely deliver an invoice shall not relieve PacifiCorp of its payment obligation in respect of the Monthly Transmission Facilities O&M Charge, Monthly Common Facilities Charge and Other Costs as shown on such invoice, or release Idaho Power of its responsibility for its share of the Other Costs in such invoice.

5.09          Disputed Amounts .  If the Non-Operating Owner disputes any portion of any amount specified in an invoice delivered by the Operator pursuant to Section 5.08 , the Non-Operating Owner shall pay its total amount of the invoice when due, and, if actually known at the time by the Non-Operating Owner, identify the disputed amount and state that the disputed amount is being paid under protest.  Any disputed amount shall be resolved pursuant to the provisions of Article XVIII .  If it is determined pursuant to Article XVIII that an overpayment or underpayment has been made by the Non-Operating Owner or the amount of any Other Costs allocated to the Owners on an invoice is incorrect, then (i) in the case of any overpayment by the Non-Operating Owner, the Operator shall promptly return the amount of the overpayment (or credit the amount of the overpayment on the next invoice) to the Non-Operating Owner, (ii) in the case of an underpayment by the Non-Operating Owner, the Non-Operating Owner shall promptly pay the amount of the underpayment to the Operator (for the benefit of the other Owner), and (iii) in the case of an incorrect allocation of Other Costs to an Owner, the allocations of Other Costs on the next invoice shall be adjusted to correct for such incorrect allocation, in each case, together with interest for the period from the date of overpayment, underpayment, or incorrect allocation, until such amount has been paid or credited against a future invoice calculated in the manner prescribed for calculating interest on refunds under the FERC Methodology.

5.10          Assistance .  Each Owner shall cooperate with the Operator promptly, as and when reasonably requested by the Operator, to assist the Operator in the performance of its duties, responsibilities and obligations under this Agreement, including executing and delivering from time to time such additional documents, certificates or instruments, and taking such additional actions, as may be reasonably requested by the Operator.  Each Owner shall bear its own costs for providing such cooperation and assistance as requested by the Operator unless the Owners agree otherwise in writing.  Nothing in this Agreement shall preclude an Owner from exercising any rights expressly granted it under this Agreement or taking any action (or having its Affiliates

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take any action) with respect to any other transmission project, including any such project that may compete with the Transmission Facilities.

 

5.11          Remedies .

(a)                Notwithstanding any provision to the contrary contained in this Agreement, the Operator shall have no liability to the Non-Operating Owner in connection with the performance of its covenants and obligations under this Agreement, except as provided in this Section 5.11 and Section 14.01(c) .  The Non-Operating Owner agrees that it has a duty to mitigate any damages and shall use Commercially Reasonable Efforts to minimize any damages it may incur as a result of the Operator’s failure to perform or breach of any of its covenants or obligations under this Agreement.

(b)               The Owners and Operator acknowledge that the obligations and covenants performed by the Operator hereunder are unique and that the Non-Operating Owner will be irreparably injured should such obligations and covenants not be performed in accordance with the terms and conditions of this Agreement.  Consequently, the Non-Operating Owner will not have an adequate remedy at law if the Operator shall fail to perform its obligations and covenants hereunder.  The Non-Operating Owner shall have the right, in addition to any other remedy available under this Agreement, to specific performance of the Operator’s obligations and covenants hereunder, and the Owners and Operator agree not to take a position in any proceeding arising out of this Agreement to the effect that the Non-Operating Party has an adequate remedy at law.

ARTICLE VI
OPERATION AND MAINTENANCE; CURTAILMENT;
INTERCONNECTION WITH THIRD PARTIES
; COMMON FACILITIES

6.01          Operation and Maintenance; Capital Upgrades and Improvements .

(a)                The Operator shall supervise and perform, or cause to be supervised and performed, the physical operation and maintenance of the Transmission Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.  Subject to Section 5.04, the Operator may utilize its employees and supervisory personnel, and any independent technical advisors, consultants, contractors and agents which it may select, as may be required to perform the Operator’s obligations under this Section 6.01.

(b)               The Operator shall make maintenance renewals and replacements to the Transmission Facilities (i) the costs of which are recordable as an operation and maintenance expense under the FERC Uniform System of Accounts; and (ii) that (A) are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice, and/or (B) are required by applicable Governmental Requirements and Governmental Authorizations.  Such maintenance renewals and replacements to the Transmission Facilities are included in the services for which the Operator is compensated by the Monthly Transmission Facilities O&M Charge.  The Operator shall not separately invoice the Owners for the costs of such maintenance renewals and replacements to the Transmission Facilities.  Notwithstanding anything to the

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contrary contained in this Agreement, any maintenance renewals and replacements made pursuant to this Section 6.01(b) shall be Transmission Facilities for purposes of this Agreement.

 

(c)                The Operator shall make capital upgrades and improvements to the Transmission Facilities (i) the costs of which are recordable as capital expenditures under the FERC Uniform System of Accounts, and (ii) which (A) are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice and/or (B) are required by applicable Governmental Requirements and Governmental Authorizations.  The Operator shall consult with the Owners and receive their prior approval, such approval not to be unreasonably withheld, delayed or conditioned, with respect to any capital upgrade or improvement for which the Operator reasonably expects to incur total project costs that exceed Two Hundred Fifty Thousand Dollars ($250,000).  The Owners shall be responsible for their pro rata share (based on their Ownership Interests) of any Costs incurred by or on behalf of the Operator in making such capital upgrades or improvements.  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades and improvements made pursuant to this Section 6.01(c) shall be Transmission Facilities for purposes of this Agreement.

6.02          Curtailment .  The Operator shall notify the Owners as soon as reasonably practicable upon becoming aware of any planned or unplanned event or circumstance, including an emergency condition or a rating study to comply with applicable Governmental Requirements or Reliability Standards, which physically or otherwise reduces or may reduce the amount of transmission capacity on all or a portion of the Transmission Facilities (“ Reduction Event ”), including the aggregate amount of reduction in the transmission capacity of the Transmission Facilities to the extent known by the Operator.  In the event of a Reduction Event, the Operator shall take such actions as the Operator may reasonably deem prudent and necessary to terminate the Reduction Event and to preserve and maintain the reliability, safety, integrity and operability of the applicable Transmission Facilities and to protect the health and safety of the public.  Each of the Owners shall provide notice of each Reduction Event in accordance with its respective OATT.

6.03          Interconnection with Third Parties .  The Owners acknowledge and agree that all third-party Interconnection Customer requests for interconnection to any of the Transmission Facilities must be coordinated with the Operator and processed in a manner consistent with the Owner’s OATT to which the Interconnection Customer’s request was made (“ Interconnection Owner ”).  An Interconnection Owner in receipt of a third-party Interconnection Customer request for interconnection with the Transmission Facilities will promptly notify the Operator and thereafter the Owners and the Operator will coordinate and cooperate to process the interconnection request.  The Operator will coordinate the conduct of any studies required to determine the impact of the interconnection request on the Transmission Facilities and the Affected Systems with Affected System Operators, including the Owners, in accordance with the Interconnection Owner’s OATT.  The Operator will include the Owners and such Affected System Operators in all meetings held with Interconnection Customers as required by the Interconnection Owner’s OATT.

6.04          Common Facilities .  The Operator shall make the Common Facilities available to the Owners to support the operation of the Transmission Facilities in accordance with the terms of this Agreement and without adverse distinction between the Owners.  The Operator shall

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supervise and perform, or cause to be supervised and performed, the physical operation and maintenance of the Common Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.  Subject to Section 5.04 , the Operator may utilize its employees and supervisory personnel, and any independent technical advisors, consultants, contractors and agents which it may select, as may be required to perform the Operator’s obligations under this Section 6.04 .  The obligations performed by the Operator pursuant to this Section 6.04 are included in the services for which the Operator is compensated by the Monthly Common Facilities Charge, and the Operator shall not separately invoice the Owners and the Owners shall not be liable for any of the costs or expenses incurred by or on behalf of the Operator pursuant to this Section 6.04 .

 

ARTICLE VII
CAPITAL UPGRADES PROPOSED BY AN OWNER

7.01          Capital Upgrades .

(a)                At any time during the Term, an Owner (“ Electing Owner ”) may elect to make a capital upgrade or improvement to the Transmission Facilities, provided that in no event shall an Electing Owner be entitled to make a capital upgrade or improvement to the Transmission Facilities that reasonably would be expected to have a material adverse effect on the other Owner’s ownership, use or enjoyment of its Ownership Interest of the Transmission Facilities (and associated Capacity Share) as contemplated in this Agreement.  An Electing Owner shall provide the other Owner no less than sixty (60) days’ prior written notice of its election, together with reasonable details about the proposed upgrade or improvement (each, a “ Capital Upgrade Notice ”).  Within sixty (60) days of receipt of the Capital Upgrade Notice, the other Owner may notify the Electing Owner in writing that it elects to participate in the capital upgrade or improvement to the Transmission Facilities.

(i)                 If the other Owner delivers notice to the Electing Owner within the sixty (60) day period that it elects to participate in the capital upgrade or improvement to the Transmission Facilities, then the Owners shall meet and agree on: (A) the final scope of the capital upgrade or improvement; (B) the allocation of increased transmission capacity, if any, associated with such capital upgrade and improvement between the Owners, including any change in the Owners’ Capacity Shares; (C) any change in each Owner’s Ownership Interest; (D) each Owner’s share of the costs of such upgrade or improvement; (E) any change in the Monthly Transmission Facilities O&M Charge; and (F) such other matters as the Owners may agree upon, all of which shall be memorialized in an amendment to this Agreement executed by the Owners, including any amendments to the Exhibits hereto (the “ Amendment ”); provided , however , that any failure of the Owners to agree on any of the matters specified in subparts (A) through (F) above shall be resolved pursuant to the provisions of Article XVIII .  Notwithstanding any provisions to the contrary in this Agreement, an Owner shall not be prohibited from making a capital upgrade or improvement to the Transmission Facilities pursuant to this Section 7.01(a) because the Owners fail to agree on any of the matters specified in subparts (A) through (F) of the immediately preceding sentence, and any such disagreement shall be resolved pursuant to Article XVIII .

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(ii)               If the other Owner elects not to participate in the capital upgrade or improvement to the Transmission Facilities (or fails to deliver a notice to the Electing Owner within the sixty (60) day period), then the Electing Owner may proceed with the capital upgrade or improvement, provided that the Electing Owner shall coordinate with the Operator on the final scope of the capital upgrade or improvement.

(b)               The Operator shall design, permit, construct, install and commission any upgrades or improvements to the Transmission Facilities provided for in Section 7.01(a)(i) in accordance with the Amendment or, if applicable, any resolution pursuant to Article XVIII , and otherwise in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations.  The Owners shall be responsible, based on the Amendment or, if applicable, any resolution pursuant to Article XVIII , for all of the Costs incurred by or on behalf of the Operator in connection with such capital upgrade or improvement to the Transmission Facilities.  Effective as of the date of successful commissioning of such capital upgrade or improvement, written notice of which the Operator shall provide to the Owners, the Owners’ Ownership Interests and Capacity Shares shall be adjusted, if at all, in accordance with the Amendment or, if applicable, any resolution pursuant to Article XVIII , and the Owners shall memorialize any revised Ownership Interests in a revised Exhibit C which shall be effective as of the date of successful commissioning of such upgrade or improvement.  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades or improvements provided for in this Section 7.01(b) shall be Transmission Facilities for purposes of this Agreement.

(c)                The Operator shall design, permit, construct, install and commission any upgrades or improvements to the Transmission Facilities provided for in Section 7.01(a)(ii) in accordance with the final scope of the capital upgrade or improvement established by the Electing Owner pursuant to Section 7.01(a)(ii) , and otherwise in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations.  The Electing Owner shall be responsible for all of the Costs incurred by or on behalf of the Operator in connection with such capital upgrade or improvement to the Transmission Facilities and title to such capital upgrades or improvement shall vest solely with the Electing Owner.  Effective as of the date of successful commissioning of such capital upgrade or improvement, written notice of which the Operator shall provide to the Owners, (i) the Owners’ Ownership Interests shall be adjusted, if at all, in accordance with Exhibit C , (ii) the Owners shall memorialize any revised Ownership Interests in a revised Exhibit C which shall be effective as of the date of successful commissioning of such upgrade or improvement, and (iii) the Operator shall operate and maintain such capital upgrade or improvement in accordance with Section 6.01(a) .  In addition, the Owners shall meet and agree on: (A) the allocation of increased transmission capacity, if any, associated with such capital upgrade and improvement between the Owners, including any change in the Owners’ Capacity Shares; (B) any change in the Monthly Transmission Facilities O&M Charge; and (C) such other matters as the Owners may agree upon, all of which shall be memorialized in an amendment to this Agreement executed by the Owners, including any amendments to the Exhibits hereto; provided , however , that any failure of the Owners to agree on any of the matters specified in subparts (A) through (C) above shall be resolved pursuant to the provisions of Article XVIII .  Notwithstanding anything to the contrary contained in this

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Agreement, any capital upgrades or improvements provided for in this Section 7.01(c) shall not be Transmission Facilities for purposes of this Agreement.

(d)               Notwithstanding anything to the contrary contained herein, the provisions of this Section 7.01 shall not apply to capital upgrades or improvements made by the Operator pursuant to Section 6.01(c) which are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice or required by applicable Governmental Requirements or Governmental Authorizations, which shall be governed by the provisions of Section 6.01 .

(e)                Each Owner shall provide the Operator prompt written notice of any request pursuant to its OATT from a third-party customer to provide additional transmission capacity that will require one or more capital upgrades or improvements to the Transmission Facilities.  If capital upgrades or improvements are required in accordance with such Owner’s OATT, then such capital upgrades and improvements shall be made by the Operator in accordance with the provisions of Section 7.01(a) and Section 7.01(b) .

(f)        The Owners agree that the Tap Line Upgrades to the Transmission Facilities shall be permitted, constructed, installed and commissioned by the Operator, provided that the Operator shall delegate such responsibilities to PacifiCorp pursuant to Section 5.04 .  The Operator shall use Commercially Reasonable Efforts to construct, install and commission the Tap Line Upgrades during the outage for the Jim Bridger power plant currently scheduled for April, 2011.  The Owners shall each be responsible for fifty percent (50%) of all Costs incurred by or on behalf of the Operator in connection with the permitting, construction, installation and commissioning of the Tap Line Upgrades pursuant to this Section 7.01(f) .  The Owners agree that the Tap Line Upgrades shall not result in a change to the Owners’ Ownership Interests or associated Capacity Shares or the Monthly Transmission Facilities O&M Charge.  For purposes of this Section 7.01(f) , “ Tap Line Upgrades ” means the redesign and upgrade of the interconnection structures connecting the existing 500 kV Midpoint-Summer Lake Line to the Hemingway Substation, including the two tangent and two dead end monopole structures, so as to facilitate hot work off the structures as a means to minimize outages.

ARTICLE VIII
PHYSICAL DAMAGE TO TRANSMISSION FACILITIES; CONDEMNATION

     8.01          Rebuilding Damaged Facilities .  If any of the Transmission Facilities are materially damaged or destroyed (the “ Damaged Facilities ”), then within thirty (30) days of the date the damage or destruction occurred, the Operator shall deliver to the Owners a written notice (the “ Damage Notice ”) of the Operator’s good faith reasonable estimate of the cost to repair or rebuild the Damaged Facilities.  If the Damage Notice indicates that the total project cost to repair or rebuild the Damaged Facilities is estimated to be Five Million Dollars ($5,000,000) or more, inclusive of insurance proceeds, then the Owners will determine whether the Damaged Facilities will be repaired or rebuilt within thirty (30) days of the date of the Damage Notice.  If the Damage Notice indicates that the total project cost to repair or rebuild the Damaged Facilities is estimated to be less than Five Million Dollars ($5,000,000), inclusive of insurance proceeds, then the Operator will determine whether the Damaged Facilities will be repaired or rebuilt and provide notice thereof to the Owners within thirty (30) days of the date of the Damage Notice.  If the Owners or the Operator determines pursuant to this Section 8.01 to

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repair or rebuild the Damaged Facilities, then the Owners will, upon receipt of any insurance proceeds paid in connection with such Damaged Facilities, apply such proceeds (up to its pro rata share based on its Ownership Interest) to the repair and reconstruction of the Damaged Facilities which will be carried out by the Operator, provided that the Operator shall pay pro rata to the Owners (in accordance with their Ownership Interests) any insurance proceeds received from any property insurance obtained by the Operator pursuant to Section 5.07(b) .  The Operator will be responsible for obtaining any necessary Governmental Authorizations to repair or rebuild the Damaged Facilities and determining the manner in which to repair and reconstruct the Damaged Facilities (including the equipment to be used).  Each Owner shall reasonably cooperate with and support the Operator in obtaining any such Governmental Authorizations in accordance with Section 5.05(c) .  The Operator will cause such repairs or reconstruction to be made so that the Damaged Facilities will be repaired and restored to substantially the same general condition, character and use as existed prior to such damage or destruction.  If the cost of such repairs or reconstruction exceeds the insurance proceeds required to be applied to the repair or reconstruction pursuant to this Section 8.01 , then the Owners shall pay, in accordance with their applicable Ownership Interests, the shortfall amount.

8.02          Decision not to Rebuild .  If the Owners determine pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities (or cannot reach agreement to repair or rebuild the Damaged Facilities) or the Operator determines pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities, then, in each case, (a) each Owner shall (i) be entitled to retain any insurance proceeds received pursuant to insurance maintained by it with respect to the Damaged Facilities, (ii) receive its share of any revenues from the salvage or sale of the Damaged Facilities and (iii) pay its pro rata share (based on its Ownership Interest) of any costs of removal of parts and equipment from the Damaged Facilities, (b) the Operator shall pay pro rata to the Owners (in accordance with their Ownership Interests) any insurance proceeds received from any property insurance obtained by the Operator pursuant to Section 5.07(b) , and (c) subject to Section 8.03 , this Agreement shall terminate pursuant to Section 2.04(a) .

8.03          Purchase of Ownership Interest .  If pursuant to Section 8.01 the Owners determine not to repair or rebuild the Damaged Facilities (or cannot reach agreement to repair or rebuild the Damaged Facilities) or the Operator determines that the Damaged Facilities should not be repaired and reconstructed and, in each case, one Owner desires to repair or rebuild the Damaged Facilities (the “ Continuing Owner ”), then the Continuing Owner shall have the option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner.  In order to exercise its option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner, the Continuing Owner must give written notice thereof to the other Owner within thirty (30) days of the Owners’ or Operator’s determination pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities.  The Owners shall enter into such documentation as the Continuing Owner shall reasonably request to document the purchase and sale of all of the Ownership Interest (and Capacity Share) of the other Owner in the Transmission Facilities, provided that the purchase price of the Ownership Interest (and Capacity Share) of the other Owner shall be equal to the other Owner’s pro rata share (based on its Ownership Interest) of: (a) the salvage value of the Damaged Facilities, and (b) the depreciated cost of the Transmission Facilities which are not part of the Damaged Facilities.

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8.04          Cooperation .  If the Continuing Owner seeks to repair or rebuild the Transmission Facilities purchased from the other Owner pursuant to Section 8.03 , then, at the Continuing Owner’s request and expense, the other Owner and the Operator (if the Continuing Owner is not the Operator) will, for a reasonable period of time, cooperate with and use Commercially Reasonable Efforts to assist the Continuing Owner in the repair or rebuilding of the Damaged Facilities.  This Section 8.04 shall survive the expiration or termination of this Agreement.

8.05          Condemnation .  If there occurs a loss of title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities, as the result of the exercise of the right of condemnation or eminent domain by or on behalf of any Governmental Authority, then the Operator will promptly give notice thereof to the Owners, which notice shall generally describe the nature and extent of such condemnation or eminent domain proceedings (including any negotiations in connection with such proceedings).  The Operator shall, in consultation with the Owners, use Commercially Reasonable Efforts to resist the loss of title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities through condemnation or eminent domain.  If, as a result of condemnation or eminent domain, the Owners shall lose title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities, the Owners shall determine, by mutual agreement, whether:

(a)                the Transmission Facilities are no longer useful for the transmission of electric power and should be retired and decommissioned, in which case the provisions of Article IX shall control;

(b)               the Transmission Facilities should be replaced or modified, in which case the Owners will, upon receipt of any awards paid in connection with such condemnation or eminent domain, apply such awards to the replacement or modification of the Transmission Facilities which will be carried out by the Operator.  The Operator will, consistent with the mutual agreement of the Owners, determine the manner in which to replace or modify the Transmission Facilities (including the equipment to be used), and will cause such replacement and modifications to be made so that the Transmission Facilities are replaced or modified in accordance with the mutual agreement of the Owners.  If the cost of replacement or modification of the Transmission Facilities exceeds the awards received by the Owners in connection with such condemnation or eminent domain, then the Owners shall pay their pro rata shares (based on their Ownership Interests) of the shortfall amount; or

(c)                if the Owners do not reach mutual agreement on one of the actions provided for in paragraphs (a) and (b) above, or on another course of action, within sixty (60) days after the date of the notice provided by the Operator to the Owners pursuant to the first sentence of this Section 8.05 , then each Owner shall receive its pro rata share (based on its Ownership Interest) of all awards received by the Owners (or their Affiliates) in connection with any such condemnation or eminent domain (less the actual cost, fees and expenses incurred by the Operator in collection thereof).

 

 

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ARTICLE IX
RETIREMENT AND DECOMMISSIONING

9.01          Decision to Retire Transmission Facilities .  The Owners will determine in accordance with the terms of this Article IX when the Transmission Facilities are no longer useful for the transmission of electric power and should be retired and decommissioned.  If the Owners mutually agree to retire and decommission the Transmission Facilities, then, subject to Section 9.02 and Section 9.03 , this Agreement shall terminate pursuant to Section 2.04(b) .

9.02          Costs of Decommissioning .  Each of the Owners shall be responsible for paying its pro rata share (based on its Ownership Interest) of the aggregate amount of all costs incurred by or on behalf of the Operator to retire permanently the Transmission Facilities from service, including decommissioning, dismantling, demolishing and removal of equipment, facilities and structures, security, maintenance, disposing of debris, abandonment and all other costs incurred by or on behalf of the Operator to retire permanently the Transmission Facilities from service, net of any amounts recovered in connection with the sale of any retired equipment, facilities and structures.

9.03          Purchase of Ownership Interest .  Each Owner shall give written notice to the other Owner when it believes the Transmission Facilities should be retired and decommissioned (each, a “ Decommissioning Notice ”).  If the other Owner desires to continue the operation of the Transmission Facilities (the “ Remaining Owner ”), then the Remaining Owner shall have the option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner in the Transmission Facilities.  In order to exercise its option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner in the Transmission Facilities, the Remaining Owner must give written notice thereof to the other Owner within ninety (90) days of receipt of the other Owner’s Decommissioning Notice.  The Owners shall enter into such documentation as the Remaining Owner shall reasonably request to document the purchase and sale of the Ownership Interest (and Capacity Share) of the other Owner, provided that the purchase price of the Ownership Interest (and Capacity Share) of the other Owner shall be equal to the other Owner’s pro rata share (based on its Ownership Interest) of the depreciated cost of the applicable Transmission Facilities.

9.04          Cooperation .  If the Remaining Owner seeks to purchase and continue the operation of the Transmission Facilities, then, at the Remaining Owner’s request and expense, the other Owner and the Operator (if the Remaining Owner is not the Operator) will, for a reasonable period of time, cooperate with and use Commercially Reasonable Efforts to assist the Remaining Owner in the continued operation of the Transmission Facilities.  This Section 9.04 shall survive the expiration or termination of this Agreement.

 

ARTICLE X
INTERCONNECTION

10.01      Grant of Interconnection .  Subject to the terms and conditions in this Article X , the Idaho Power Transmission System and PacifiCorp Transmission System shall be interconnected at the Point of Interconnection.

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10.02      Interconnection Operating Procedures .  Prior to the energization of the Interconnection, the Owners shall develop written operating procedures, in accordance with WECC reliability requirements, governing operation of the Interconnection by the Operator.  The Owners may, by mutual written agreement, amend and supplement the operating procedures, in accordance with WECC reliability requirements, governing operation of the Interconnection by the Operator.

10.03      Interconnection Energization .  The Owners shall energize, or cause to be energized, the Interconnection upon successful completion of acceptance testing of the Interconnection by the Operator, including installation of the Metering Equipment specified in Section 10.04 , and completion of the operating procedures specified in Section 10.02 .  The Parties recognize the need for the approval of an expedited WECC ratings review for Path 14 (Idaho to Northwest ) and Path 75 (Midpoint-Summer Lake) both of which are affected by the Hemingway Substation Interconnection.  Idaho Power agrees to intertie the planned Hemingway Substation 230 kV transmission line to the Idaho Power 138 kV Treasure Valley system only after the WECC ratings process is complete  The non-simultaneous and simultaneous export ratings of the Midpoint-Summer Lake 500 kV line are presently 1500 MW and 1187 MW respectively.  Idaho Power acknowledges the desire to maintain the non-simultaneous export rating of the Midpoint-Summer Lake Line and will mitigate any adverse impacts that the Hemingway Substation causes to the non-simultaneous export rating of the Midpoint-Summer Lake Line which is identified in the WECC rating process in connection with the initial energization of the Hemingway Substation.  Such mitigation shall include changes to operating procedures if necessary to achieve this desired rating.  The simultaneous export rating of the Midpoint-Summer Lake Line is an allocation of the capability of multiple lines in Path 14, and Idaho Power will support PacifiCorp if a third party raises a challenge to the simultaneous rating of the Midpoint-Summer Lake Line.

10.04      Metering .  The Operator shall operate and maintain the Metering Equipment and meters (which are part of the Common Facilities) in accordance with Good Utility Practice and applicable WECC operating guides, protocols and metering guidelines.

(a)                The Operator shall test the Metering Equipment and meters (which are part of the Common Facilities) no less frequently than once every two (2) years.  The Owners shall be given reasonable advance notice of the Operator’s testing of the Metering Equipment and meters (which are part of the Common Facilities) and shall have the opportunity to observe such testing, and the Operator shall provide the Owners a copy of meter results (including any early results to the extent the Operator has access to the results) promptly upon the results being available to the Operator.  Each Owner may request additional tests of the Metering Equipment and meters (which are part of the Common Facilities) beyond those required by the first sentence of this Section 10.04(a) , provided such additional tests shall be conducted by the Operator at the expense of the requesting Owner, unless such additional test reveals that the Metering Equipment and meters (which are part of the Common Facilities) are found to register outside the accepted accuracy range for watts and vars of full load equals +/- 0.2%, light load equals +/-0.2%, and power factor equals +/-0.3%, in which event the expense of the additional testing will borne by the Owners equally.

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(b)               If, as a result of any test, the Metering Equipment and meters (which are part of the Common Facilities) are found to be registering outside the applicable accuracy standard in effect at the time of the test, such Metering Equipment and meters (which are part of the Common Facilities) shall be restored to the accuracy standard or an accurate meter substituted by the Operator.

(c)                The Operator shall provide each Owner with a real time remote signal from the Metering Equipment and meters (which are part of the Common Facilities) pursuant to established inter-control area communications protocols.

(d)               The Owners acknowledge that (i) the current meter point of Path 14 (Idaho to Northwest) and (ii) Path 75 (Summer Lake) is expected to shift from the Midpoint Substation to the Hemingway Substation with no reduction to existing ratings for either path.  Once the meter point is shifted to the Hemingway Substation for both paths, the Owners will agree on appropriate compensation for the line losses transferred to the Idaho Power balancing area.

10.05      Service Conditions .

(a)                Operation and Maintenance; Avoidance of Burdens and Control of System Disturbances .  Each Owner shall operate and maintain its Transmission System in a manner consistent with Good Utility Practice and the provisions of this Section 10.05 .  In addition, each Owner shall operate and maintain its respective Transmission System so as to minimize, in accordance with Good Utility Practice, the likelihood of a disturbance originated in either Transmission System, which might cause impairment to the service of the other Owner or of any transmission system interconnected with the Transmission System of the other Owner.  Either Owner may install and operate on its Transmission System such relays, disconnecting devices, and other equipment as it may deem appropriate for the protection of its Transmission System, provided that any such relays, disconnecting devices and other equipment on the Transmission Facilities shall be handled pursuant to Article VII .

(b)               Additional Services .  This Article X is applicable only to the physical interconnection of the Owners’ Transmission Systems at the Point of Interconnection and does not obligate either Owner to receive or provide any service.  Other services provided by one Owner to the other Owner shall be governed by such other agreements as the Owners may enter into from time to time.  Neither Owner shall be obligated to deliver reactive power for the benefit of the other Owner, and neither Owner shall be obligated to receive reactive power when to do so might introduce objectionable operating conditions on its Transmission System.

(c)                Interruption of Service .  The Owners shall use Commercially Reasonable Efforts, consistent with Good Utility Practice and any applicable Reliability Standards and Governmental Requirements, to provide a physical interconnection to be operated in continuous synchronization at the Point of Interconnection, provided that an Owner (“ Interrupting Owner ”) may temporarily interrupt or isolate the Interconnection under the following circumstances:  (i) by operation of automatic equipment installed for power system protection; (ii) after consultation with the other Owner, other than in an emergency situation where consultation is not practicable, when an Owner deems it necessary for installation, maintenance, inspection, repairs or replacements of equipment on its Transmission System; (iii) at any time that, in the sole

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judgment of the Interrupting Owner, such action is necessary to preserve the integrity of, or to prevent or limit any instability on, or to avoid or mitigate an Unauthorized Use on its Transmission System; (iv) where necessary to comply with documented directives from a Governmental Authority; (v) as a result of one or more events of Force Majeure; or (vi) where necessary to prevent (A) death or serious injury to any person, (B) material damage or harm to any property or (C) any material adverse effect to the security of, or damage to its Transmission System or the electric systems of others to which its Transmission System is directly connected, including the other Owner’s Transmission System.  An Interrupting Owner shall use Commercially Reasonable Efforts to provide the other Owner (1) with reasonable advance notice of any planned interruption of the Interconnection and (2) with notice of any other interruption of the Interconnection as soon as practicable after the interruption.  If synchronous operation is interrupted, the Owners shall cooperate so as to remove the cause of such interruption as soon as commercially practicable consistent with Good Utility Practice, applicable Reliability Standards and applicable Governmental Requirements.

(d)               Physical and Cyber Security .  The Operator shall cooperate with each Owner in complying with any physical and cyber security or other security requirement established by Governmental Requirement, including Reliability Standards, applicable to the Owner and the Transmission Facilities, written notice of which the Owner provides to the Operator.

10.06      Survival of Interconnection Provision .  The provisions of this Article X , together with Articles XI XII , XIV , XV , XVIII , XIX and XX (to the extent applicable to the surviving provisions of this Article X ), shall continue in full force and effect notwithstanding the expiration or termination of this Agreement, provided that in the event of expiration or termination of this Agreement, the Parties shall amend this Agreement to reflect such changes to this Agreement as shall be necessary and mutually acceptable to the Parties to conform this Agreement to the surviving provisions of this Agreement in accordance with this Section 10.06 .

ARTICLE XI
FORCE MAJEURE

11.01      Force Majeure Defined .  For purposes of this Agreement, “ Force Majeure ” means an event or circumstance beyond the reasonable control of and without the fault or negligence of the Owner or Operator claiming Force Majeure (“ Affected Party ”), which, despite the exercise of reasonable diligence, cannot be or be caused to be prevented, avoided or removed by such Affected Party including, to the extent satisfying the above requirements, acts of God; earthquake; abnormal weather condition; hurricane; flood; lightning; high winds; drought; peril of the sea; explosion; fire; war (declared or undeclared); military action; sabotage; riot; insurrection; civil unrest or disturbance; acts of terrorism; economic sanction or embargo; civil strike, work stoppage, slow-down, or lock-out that are of an industry or sector-wide nature and that are not directed solely or specifically at the Affected Party; the binding order of any Governmental Authority, provided that the Affected Party has in good faith reasonably contested such order; the failure to act on the part of any Governmental Authority, provided that such action has been timely requested and diligently pursued; unavailability of equipment, supplies or products, but only to the extent caused by Force Majeure; failure of equipment, provided that the equipment has been operated and maintained in accordance with Good Utility Practice; and

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transportation delays or accidents, but only to the extent otherwise caused by Force Majeure; provided , however , that neither insufficiency of funds, financial inability to perform nor changes in market conditions shall constitute Force Majeure.

 

11.02      Effect of Force Majeure .

(a)                If an Affected Party is rendered wholly or partly unable to perform its obligations under this Agreement or its performance is delayed because of Force Majeure, such Affected Party shall be excused from, and shall not be liable for, whatever performance it is unable to perform or delayed in performing due to the Force Majeure to the extent so affected, provided that:

(i)                 The Affected Party, as soon as reasonably practical after the commencement of the Force Majeure, gives the other Owner(s) and the Operator prompt written notice thereof, including a description of the particulars of the Force Majeure;

(ii)               The suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure; and

(iii)             The Affected Party uses Commercially Reasonable Efforts to overcome and remedy its inability to perform as soon as reasonably practical after the commencement of the Force Majeure.

(b)               Notwithstanding anything in this Article XI to the contrary, no payment obligation arising under this Agreement prior to the date of an event of Force Majeure shall be excused by such event of Force Majeure.

(c)                Whenever an Affected Party is required to commence or complete any action within a specified period and is prevented or delayed by Force Majeure from commencing or completing such action within the specified period, such period shall be extended by an amount equal to the duration of such event of Force Majeure occurring or continuing during such period.

ARTICLE XII
EVENTS OF DEFAULT

12.01      Event of Default .  Each of the following events shall constitute an event of default (“ Event of Default ”) by the defaulting Owner (a “ Defaulting Owner ”):

(a)                the failure to make, when due, any payment required pursuant to this Agreement, if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner;

(b)               any representation or warranty made by such Defaulting Owner herein is false or misleading in any material respect when made, unless (i) the fact, circumstance or condition that is the subject of such representation or warranty is made true within thirty (30) days after notice thereof from the Non-Defaulting Owner, provided that if the fact, circumstance or condition that is the subject of such representation or warranty reasonably cannot be corrected

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within such thirty (30) day period, then the Defaulting Owner shall have an additional period of time (not to exceed sixty (60) days) in which to correct the fact, circumstance or condition that is the subject of such representation or warranty, and (ii) such cure removes any adverse effect on the Non-Defaulting Owner of such fact, circumstance or condition being otherwise than as first represented, or such fact, circumstance or condition being otherwise than as first represented does not materially adversely affect the Non-Defaulting Owner;

(c)                a transfer, assignment or other disposition of its interest in this Agreement or its Ownership Interest (or Capacity Share) in the Transmission Facilities, in each case, in violation of Article XIX ;

(d)               the failure to perform or breach of its covenants and obligations in Section 4.06 ;

(e)                the failure to be a Qualified Owner, if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner;

(f)                the failure to perform or breach of any material covenant or obligation set forth in this Agreement (other than provided for in Section 12.01(a) , (b) , (c) , (d) or (e) ), if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner, provided that if such failure or breach cannot reasonably be cured within thirty (30) days, then the Defaulting Owner shall have an additional period of time (not to exceed ninety (90) days) in which to cure such failure or breach so long as the Defaulting Owner commences good faith activities to cure the failure or breach during the initial 30-day cure period and continues to utilize its Commercially Reasonable Efforts to effect a cure; or

(g)               the Defaulting Party becomes Bankrupt.

12.02      Cure by Non-Defaulting Owner .  If a Defaulting Owner fails to cure an Event of Default, then the Non-Defaulting Owner may, in its sole discretion, attempt to cure the Event of Default, provided that the Defaulting Owner shall reimburse the Non-Defaulting Owner for all costs and expenses incurred by or on behalf of the Non-Defaulting Party pursuant to this Section 12.02 .

12.03      Remedies .

(a)                If an Event of Default occurs and is continuing, then the Non-Defaulting Owner shall be entitled to exercise any of it remedies at law or in equity, including recovery from the Defaulting Owner of any damages suffered as a result of the Event of Default, subject to Section 14.08 .  The Non-Defaulting Party shall use Commercially Reasonable Efforts to mitigate any damages suffered as a result of the Event of Default.

(b)               The Owners acknowledge that the obligations and covenants performed by each Owner hereunder are unique and that the Non-Defaulting Owner will be irreparably injured should such obligations and covenants not be consummated in accordance with the terms and conditions of this Agreement.  Consequently, the Non-Defaulting Owner will not have an adequate remedy at law if the other Owner shall fail to perform its obligations and covenants

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hereunder.  The Non-Defaulting Owner shall have the right, in addition to any other remedy available under this Agreement, to specific performance of the Defaulting Owner’s obligations and covenants hereunder, and the Owners agree not to take a position in any proceeding arising out of this Agreement to the effect that the Non-Defaulting Party has an adequate remedy at law.

ARTICLE XIII
REPRESENTATIONS AND WARRANTIES

13.01      Representations and Warranties of PacifiCorp .  PacifiCorp represents and warrants to Idaho Power as of the Execution Date as follows:

(a)                It is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation.

(b)               It has all requisite corporate power necessary to own its assets and carry on its business as now being conducted or as proposed to be conducted under this Agreement.

(c)                It has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement, and the execution and delivery of this Agreement and the performance by it of this Agreement have been duly authorized by all necessary corporate action on its part.

(d)               The execution and delivery of this Agreement and the performance by it of this Agreement do not: (i) violate its organizational documents; (ii) violate any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default of any material agreement to which it is a party.

(e)                This Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and by principles of equity regardless of whether such principles are considered in a proceeding at law or in equity.

(f)                Except as disclosed in Schedule 13.01(f) , all material Governmental Authorizations required by Governmental Requirements to have been obtained by it prior to the date hereof in connection with the due execution and delivery of, and performance by it of its obligations under, this Agreement, have been duly obtained or made and are in full force and effect.

(g)               It is a Qualified Owner.

13.02      Representations and Warranties of Idaho Power .  Idaho Power represents and warrants to PacifiCorp as of the Execution Date as follows:

(a)                It is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation.

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(b)               It has all requisite corporate power necessary to own its assets and carry on its business as now being conducted or as proposed to be conducted under this Agreement.

(c)                It has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement, and the execution and delivery of this Agreement and the performance by it of this Agreement have been duly authorized by all necessary corporate action on its part.

(d)               The execution and delivery of this Agreement and the performance by it of this Agreement do not: (i) violate its organizational documents; (ii) violate any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default of any material agreement to which it is a party.

(e)                This Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and by principles of equity regardless of whether such principles are considered in a proceeding at law or in equity.

(f)                Except as disclosed in Schedule 13.02(f), all material Governmental Authorizations required by Governmental Requirements to have been obtained by it prior to the date hereof in connection with the due execution and delivery of, and performance by it of its obligations under, this Agreement, have been duly obtained or made and are in full force and effect.

(g)               It is a Qualified Owner.

ARTICLE XIV
INDEMNIFICATION

14.01      Indemnities .

(a)                Subject to the provisions of Section 14.03 and Section 14.08 , each Owner (the “ Indemnifying Party ”) shall indemnify, defend and hold harmless the other Owner (the “ Indemnified Party ”) and its Representatives, from and against any and all suits, actions, liabilities, legal proceedings, claims, demands, losses, costs and expenses of whatsoever kind or character, including reasonable attorneys’ fees and expenses (collectively, “ Claims ”) of third parties, for injury or death of persons or physical loss of or damage to property of Persons (other than the Indemnified Party and its Representatives) arising from the Indemnifying Party’s (including its Representatives’): (i) gross negligence or willful misconduct in connection with the performance of this Agreement; or (ii) failure to perform a material obligation under this Agreement.

 

(b)               In addition to and not in limitation of the indemnity provided in Section 14.01(a) , but subject to the provisions of Section 14.03 and Section 14.08 , each Owner, as Indemnifying Party, shall severally and not jointly, in accordance with its Ownership Interest, indemnify, defend and hold harmless the Operator, as Indemnified Party, and its Representatives

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from and against any and all third-party Claims for injury or death of persons or physical loss of or damage to property of Persons (other than the Indemnified Party and its Representatives), or fines or penalties levied or imposed by Governmental Authorities, in each case, arising under or in connection with this Agreement, including in connection with the performance by the Operator of its obligations under this Agreement, except for such Claims or fines arising from the Operator’s or its Representatives’: (i) gross negligence or willful misconduct in connection with the performance of this Agreement or (ii) failure to perform a material obligation under this Agreement.

(c)                Subject to the provisions of Section 14.03 and Section 14.08 , the Operator, as Indemnifying Party, shall indemnify, defend and hold harmless each Owner, as Indemnified Party, and its Representatives from and against any and all Claims for injury or death of persons or physical loss of or damage to property of Persons (including the Indemnified Party and its Representatives), or fines or penalties levied or imposed by Governmental Authorities or Losses incurred by the Indemnified Party and its Representatives, arising from the Operator’s and its Representatives’ (i) gross negligence or willful misconduct in connection with the performance of this Agreement or (ii) failure to perform a material obligation under this Agreement; provided , however , in no event shall the Operator be obligated to indemnify, defend or hold harmless an Owner and its Representatives from and against any such Claims or fines or Losses to the extent arising from such Owner’s or its Representatives’: (i) gross negligence or willful misconduct in connection with the performance of this Agreement; or (ii) failure to perform any material obligation under this Agreement.

14.02      Notice and Participation .

(a)                If an Indemnified Party intends to seek indemnification under this Article XIV with respect to any Claims, the Indemnified Party shall give the Indemnifying Party prompt written notice of such Claims upon the receipt of actual knowledge or information by the Indemnified Party of any possible Claims or of the commencement of such Claims.  The Indemnifying Party shall have no liability under this Article XIV for any Claim for which such notice is not provided, but only to the extent that the failure to give such notice materially impairs the ability of the Indemnifying Party to respond to or to defend the Claim.

(b)               The Indemnifying Party shall have the right to assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided , however , that if the defendants in any such proceeding include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are in conflict with those available to the Indemnifying Party and that such conflict materially prejudices the ability of the counsel selected by the Indemnifying Party to represent both Parties, the Indemnified Party shall have the right to select separate counsel reasonably satisfactory to the Indemnifying Party, at the Indemnifying Party’s expense, to assert such legal defenses and to otherwise participate in the defense of such Claim on behalf of such Indemnified Party, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such separate counsel.

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(c)                Should any Indemnified Party be entitled to indemnification under this Article XIV as a result of a Claim by a third party, and should the Indemnifying Party fail to assume the defense of such Claim within a reasonable period of time after the Indemnified Party has provided the Indemnifying Party written notice of such Claim, the Indemnified Party may, at the expense of the Indemnifying Party, contest or, with or without the prior consent of the Indemnifying Party, settle such Claim.

(d)               Except to the extent expressly provided herein, no Indemnified Party shall settle any Claim with respect to which it has sought or is entitled to seek indemnification pursuant to this Article XIV unless (i) it has obtained the prior written consent of the Indemnifying Party, or (ii) the Indemnifying Party has failed to assume the defense of such Claim within a reasonable period of time after the Indemnified Party has provided the Indemnifying Party written notice of such Claim.

(e)                Except to the extent expressly provided otherwise herein, no Indemnifying Party shall settle any Claim with respect to which it may be liable to provide indemnification pursuant to this Section without the prior written consent of the Indemnified Party; provided , however , that if the Indemnifying Party has reached a bona fide settlement agreement with the plaintiff(s) in any such proceeding, which settlement includes a full release of the Indemnified Party for any and all liability with respect to such Claim, and the Indemnified Party does not consent to such settlement agreement, then the dollar amount specified in the settlement agreement, plus the Indemnified Party’s reasonable legal fees and other costs related to the defense of the Claim paid or incurred prior to the date of such settlement agreement, shall act as an absolute maximum limit on the indemnification obligation of the Indemnifying Party with respect to the Claim, or portion thereof, that is the subject of such settlement agreement.

14.03      Net Amount .  Subject to the limitation in Section 14.02(e), if applicable, in the event that an Indemnifying Party is obligated to indemnify and hold any Indemnified Party harmless under this Article XIV , the amount owing to the Indemnified Party shall be the amount of such Indemnified Party’s actual Claims, net of any insurance or other recovery actually received by the Indemnified Party.

14.04      No Release of Insurers .  The provisions of this Article XIV shall not be deemed or construed to release any insurer from its obligation to pay any insurance proceeds in accordance with the terms and conditions of valid and collectible insurance policies.

14.05      Mitigation .  Each Indemnified Party entitled to indemnification hereunder shall take use Commercially Reasonable Efforts to mitigate all Claims after becoming aware of any event which could reasonably be expected to give rise to any Claims that are indemnifiable or recoverable hereunder or in connection herewith.

14.06      Assertion of Claims .  No Claim of any kind shall be asserted against any Owner or the Operator, whether arising out of contract, tort (including negligence), strict liability, or any other cause of or form of action, unless it is filed in a court of competent jurisdiction, or a demand for arbitration is made, within the applicable statute of limitations period for such Claim.

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14.07      Survival of Obligation .  The duty to indemnify under this Article XIV shall continue in full force and effect notwithstanding the expiration or termination of this Agreement, with respect to any Claim arising out of an event or condition which occurred or existed prior to such expiration or termination.

14.08      Limitation on Liability .

(a)                Notwithstanding any provision in this Agreement to the contrary, neither Owner nor the Operator shall be liable under this Agreement in any action at law or in equity, whether based on contract, tort or strict liability or otherwise, for any special, incidental, indirect, exemplary, punitive or consequential damages or losses, including any loss of revenue, income, profits or investment opportunities, loss of the use of equipment, or the cost of temporary equipment or services, provided that any fines or penalties levied or imposed by Governmental Authorities shall not be excluded under this Section 14.08(a) as special, incidental, indirect, exemplary, punitive or consequential damages or losses.

(b)               Notwithstanding any provision in this Agreement to the contrary, neither Owner nor the Operator shall be liable under this Agreement if and to the extent that the Agreement Limiting Liability Among Western Interconnected Systems executed by Idaho Power on August 5, 1985 and by PacifiCorp on August 22, 1973 (the “ WIS Agreement ”) is then in effect between the Parties and expressly limits or precludes such liability.  Nothing in this Agreement shall amend or otherwise affect in any way the terms and conditions of or liability of the Parties under the WIS Agreement.

ARTICLE XV
PROPRIETARY INFORMATION

15.01      Disclosure of Proprietary Information Prohibited .  Any Proprietary Information of a Party (whether in its capacity as Owner or Operator) (the “ Transferor ”) which is disclosed to or otherwise received or obtained by the other Party (whether in its capacity as Owner or Operator) (the “ Transferee ”) incident to this Agreement shall be held in confidence and the Transferee shall not (subject to Sections 15.02 , 15.03 and 15.05 ) publish or otherwise disclose any Proprietary Information of the Transferor to any Person for any reason or purpose whatsoever, or use any Proprietary Information for any purpose other than performance under this Agreement, without the prior written approval of the Transferor, which approval may be granted or withheld by the Transferor in its sole discretion.  Without limiting the generality of the foregoing, each Transferee shall observe at a minimum the same safeguards and precautions with regard to the Transferor’s Proprietary Information which the Transferee observes with respect to its own information of the same or similar kind.

15.02      Disclosure by Representatives .  Each Transferee agrees that it will make available Proprietary Information received from a Transferor to its own representatives only on a need-to-know basis, and that all Persons to whom such Proprietary Information is made available will be made aware of the confidential nature of such Proprietary Information, and will be required to agree to hold such Proprietary Information in confidence in accordance with the terms hereof.

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15.03      Permitted Disclosures .  Notwithstanding anything to the contrary contained in this Article XV :

(a)                A Transferee may provide any Proprietary Information to any Governmental Authority having jurisdiction over or asserting a right to obtain such information, provided that (i) such Governmental Authority orders that such Proprietary Information be provided, and (ii) unless prohibited from so doing by applicable Governmental Requirements, the Transferee promptly advises the Transferor of any request for such information by such Governmental Authority and cooperates in giving the Transferor an opportunity to present objections, requests for limitation, and/or requests for confidentiality or other restrictions on disclosure or access, to such Governmental Authority.

(b)               A Transferee may, to the extent required, disclose Proprietary Information to any Governmental Authority in connection with the application for any Governmental Authorization; provided that unless prohibited from so doing by applicable Governmental Requirements, the Transferee shall provide the Transferor prior written advance notice of such disclosure and the Proprietary Information that is to be disclosed.

(c)                A Transferee may disclose such Proprietary Information regarding the existence and terms of this Agreement as such Transferee deems necessary to enable it to comply with the Securities Exchange Act of 1934, or the rules, regulations and forms of the Securities and Exchange Commission, issued thereunder or the applicable rules of any stock exchange, or as otherwise required by applicable Governmental Requirements.

15.04      Injunctive Relief .  In the event of a breach or threatened breach of the provisions of this Article XV by any Transferee, the Transferor shall be entitled to an injunction restraining the Transferee from such breach or threatened breach.  Nothing contained herein shall be construed as prohibiting the Transferor from pursuing any other remedies available at law or equity for such breach or threatened breach of this Agreement.

15.05      Publicity .  Any public relations matters, including public announcements and press releases or similar publicity, arising out of or in connection with the terms of this Agreement or the transactions contemplated herein, shall be coordinated and agreed to between the Owners prior to said announcement or release.

15.06      Proprietary Information Defined .  For purposes of this Agreement, “ Proprietary Information ” means all information, written or oral, which has been or is disclosed by the Transferor, or by any Representative of the Transferor, or which otherwise becomes known to the Transferee, or to any Representative of such Transferee, or any other party in a confidential relationship with, the Transferee, and which (a) relates to matters such as patents, trade secrets, research and development activities, draft or final contracts or other business arrangements, books and records, budgets, cost estimates, pro forma calculations, engineering work product, environmental compliance, vendor lists, suppliers, manufacturing processes, energy consumption, pricing information, private processes, and other similar information, as they may exist from time to time, (b) relates to the existence or the terms, including pricing and other commercial terms, of this Agreement, or (c) the Transferor expressly designates in writing to be

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confidential, provided that “ Proprietary Information ” shall exclude information falling into any of the following categories:

 

(i)                 Information that, at the time of disclosure hereunder, is in the public domain, other than information that entered the public domain by breach of this Agreement by Transferee;

(ii)               Information that, after disclosure hereunder, enters the public domain, other than information that enters the public domain by breach of this Agreement by Transferee;

(iii)             Information, other than that obtained from third-parties, that prior to disclosure hereunder, was already in Transferee’s possession, either without limitation on disclosure to others or subsequently becoming free of such limitation;

(iv)             Information obtained by Transferee from a third-party having an independent right to disclose the information; or

(v)               Information that is available through independent research without use of or access to the Proprietary Information.

15.07      Survival .  The provisions of this Article XV shall continue in full force and effect during the Term and for a period of two (2) years thereafter, notwithstanding the expiration or termination of this Agreement, with respect to any Proprietary Information obtained by any Transferee prior to such expiration or termination.

ARTICLE XVI
RELIABILITY

16.01      Reliability .  The Operator shall be responsible for compliance with all Reliability Standards applicable to the Owners and the Operator with respect to the Transmission Facilities.

ARTICLE XVII
TAXES

17.01      No Partnership .  Nothing in this Agreement shall be deemed to create or constitute a partnership, joint venture or association among the Owners or any of them, the sole purpose of this Agreement being limited to (a) the allocation of the Ownership Interests (and Capacity Share) in the Transmission Facilities and (b) provision for (i) the orderly and efficient construction, repair, modification, rehabilitation, operation and maintenance of the Owners’ respective separate undivided Ownership Interests in the Transmission Facilities, and (ii) the interconnection of the Owners’ respective Transmission Systems.  Each Owner agrees and covenants that it shall not take or omit to take any action or reporting position with any Governmental Authority contrary to this Section 17.01 .

 

17.02      761 Election .  The Owners intend that, as tenants in common and owners of undivided Ownership Interests, for United States income tax purposes the Owners shall elect in accordance with the provisions of section 761 of the Internal Revenue Code of 1986, as amended

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(“ Code ”), and the applicable income tax regulations thereunder (“ Regulations ”), to be excluded from all of the provisions of Subchapter K of the Code upon the first occasion in which such election may be filed under these Regulations and that, if such election is not filed, this Agreement shall constitute an election under Regulations section 1.761-2(b)(2)(ii) to be excluded from all of the provisions of Subchapter K of the Code and the applicable Regulations, beginning with the first year of the creation of the tenancy in common as contemplated by this Agreement and that no Owner shall object to any such election.

 

17.03      Responsibility for Taxes .  It is the intent of the Owners that so far as possible, each Owner shall separately report, promptly and timely file returns with respect to, be responsible for and pay all property, income, franchise, business, or other taxes or fees (“ Taxes ”), arising out of its Ownership Interests and the matters contemplated by this Agreement, that such Taxes shall be separately levied and assessed against each Owner severally and that each Owner shall be solely responsible for and shall pay all such Taxes so levied and assessed against it without any responsibility of the other Owner with respect thereto and without the amounts thereof being paid and apportioned between the Owners under this Agreement.  To the extent that Taxes (such as property, payroll, sales and use Taxes) may be levied or assessed against the Transmission Facilities, their operation or the Owners in such a manner as to make impossible the carrying out of the foregoing provisions of this Section 17.03 , the Operator shall report, file returns with respect to and pay such Taxes and each other Owner shall immediately reimburse the Operator for each such Owner’s Ownership Interest percentage of such Taxes.  The Operator shall not have any obligation to contest or to seek refund of such Taxes; provided , however , that the Operator may, by its personnel or counsel of its selection, pursue such administrative or court proceedings as the Operator may determine.  Each Owner shall on request pay to the Operator such Owner’s Ownership Interest percentage of the costs of such proceedings and shall share in any savings resulting from such proceedings in the same proportion.  Each Owner agrees to cooperate with the other Owner with respect to reasonable requests for information or other matters with respect to Taxes.

17.04      Indemnification .  Each Owner (the “ Tax Indemnifying Party ”) shall indemnify and hold harmless the other Owner (the “ Tax Indemnitee Party ”), on an after-tax basis, from and against any Taxes (including any interest or penalties) imposed on such Tax Indemnitee Party or the Transmission Facilities or any part thereof, to the extent such Taxes are the responsibility of the Tax Indemnifying Party pursuant to this Article XVII .

17.05      Determination of Depreciation and Other Matters .  Each Owner shall determine the basis and method it will use for purposes of depreciation and other matters where investment of the Transmission Facilities is relevant.

 

 

 

 

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ARTICLE XVIII
DISPUTES

18.01      Exclusive Procedure .  Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, interpretation, termination, performance or validity of this Agreement (each, a “ Dispute ”) shall be resolved pursuant to the procedures of this Article XVIII .

18.02      Dispute Notices .  If a Dispute arises between the Owners or between the Operator and one or both of the Owners, then any Party to such Dispute (each, a “ Disputing Party ”) may provide written notice thereof to the other Disputing Party or Disputing Parties, including a detailed description of the subject matter of the Dispute (the “ Dispute Notice ”).  Any Disputing Party may seek a preliminary injunction or other provisional judicial remedy if such action is necessary to prevent irreparable harm or preserve the status quo, in which case the Disputing Parties nonetheless will continue to pursue resolution of the Dispute pursuant to this Article XVIII .

18.03      Informal Dispute Resolution .

(a)                The Disputing Parties shall make a good faith effort to resolve the Dispute by prompt negotiations between and/or among each Disputing Party’s representative so designated in writing to the other Disputing Party or Disputing Parties (each a “ Manager ”).  If the Managers are not able to resolve the Dispute within thirty (30) days after the date of the Dispute Notice, they shall refer the matter to the designated senior officers of their respective companies (the “ Executive(s) ”), who shall have authority to settle the Dispute.  If the Executives are not able to resolve the Dispute within sixty (60) days after the date of the Dispute Notice, then the Dispute shall be resolved pursuant to Section 18.04 .

(b)               All communications and writings exchanged between and/or among the Disputing Parties in connection with these negotiations shall be confidential and shall not be used or referred to in any subsequent binding adjudicatory process between and/or among the Disputing Parties, either with respect to the current Dispute or any future Dispute between and/or among the Owners and/or the Operator.

18.04      Submission of Dispute to FERC or Approved Courts .  If a Dispute cannot be settled amicably between the Disputing Parties pursuant to Section 18.03 , then any Disputing Party may, in its sole discretion, within one (1) year after the conclusion of the time period for informal dispute resolution specified in Section 18.03 , submit such Dispute (a) to FERC or (b) to the jurisdiction of the state courts situated in Idaho or the United States District Court for the District of Idaho (the “ Approved Courts ”).  Each of PacifiCorp and Idaho Power, in its capacity as an Owner and as the Operator, consents to and accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the Approved Courts and appellate courts from any appeal thereof, and irrevocably waives any objection which it may now or hereafter have to the jurisdiction of the Approved Courts.  Each of PacifiCorp and Idaho Power, in its capacity as an Owner and as the Operator, further irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, proceeding or other action brought pursuant to this Article XVIII in any of the Approved Courts, and irrevocably waives, to the fullest extent permitted by law, and agrees not to plead or

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claim in any such Approved Court that any suit, proceeding or other action brought therein has been brought in an inconvenient forum.

 

18.05      Continued Performance During the pendency of any Dispute, each Owner and the Operator shall continue to perform all of its respective obligations under this Agreement.

ARTICLE XIX
ASSIGNMENT

19.01      Prohibited Transfers and Assignments .  Neither Idaho Power nor PacifiCorp shall have the right to transfer, assign or otherwise dispose of, in whole or in part, its interest in this Agreement, including its rights, duties and obligations hereunder, nor to transfer, assign or otherwise dispose of, in whole or in part, its Ownership Interest (or Capacity Share) in the Transmission Facilities, except as permitted under this Article XIX .

19.02      Permitted Assignments and Transfers .  The restrictions set forth in Section 19.01 shall not restrict:

(a)                dispositions and sales by the Operator incident to renewals or replacements of the Transmission Facilities;

(b)               the right of an Owner to subject any of its Ownership Interest (and Capacity Share) to the lien of any mortgage upon all or a portion of its own physical electric utility property or to otherwise collaterally assign its rights and obligations in this Agreement to a lender or other person providing financing to the Owner;

(c)                the right of an Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of such transfer, in the case of Idaho Power, all of its rights and obligations in this Agreement as the Operator) in connection with any sale, merger or other transfer of substantially all of such Owner’s electric transmission facilities as an operating entity; provided , however , that the effectiveness of such assignment shall be conditioned upon the assignee (i) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the assigning Owner as of the assignment date and (ii) qualifying as a Qualified Owner on the assignment date;

(d)               the right of an Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of transfer, in the case of Idaho Power, all of its rights and obligations in this Agreement as the Operator) to an Affiliate of the Owner which owns all or substantially all of the transmission facilities of such Owner; provided , however , that the effectiveness of such assignment shall be conditioned upon the assignee (i) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the assigning Owner as of the assignment date and (ii) qualifying as a Qualified Owner on the assignment date;

(e)                the right of any Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of

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such transfer, in the case of Idaho Power, all of its rights and obligations in this Agreement as the Operator) to a third party; provided that:  (i) the other Owner, in its sole discretion, approves such transfer and approves the third-party purchaser as having demonstrated that it is financially and technically capable of performing the transferring Owner’s (and, in the case where Idaho Power is the transferring Owner, Operator’s) obligations under this Agreement, and (ii) the other Owner is offered the right of first refusal to purchase such Ownership Interest (and Capacity Share) and all of the transferring Owner’s rights and obligations in this Agreement (including as part of such transfer, in the case where Idaho Power is the transferring Owner, all of its rights and obligations in this Agreement as the Operator), on terms no less favorable than those offered to such proposed third-party purchaser; provided , however , that the effectiveness of such assignment shall be conditioned upon the third-party purchaser (A) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the assigning Owner (including as part of such transfer, in the case of Idaho Power, all of its rights and obligations in this Agreement as the Operator) as of the assignment date and (B) qualifying as a Qualified Owner on the assignment date; and

(f)                the right of an Owner to schedule and provide transmission service (in the amount of its Capacity Share) over the Transmission Facilities under the Owner’s OATT and to schedule and transmit an amount of energy commensurate with the Owner’s Capacity Share over the Transmission Facilities on its own behalf or on behalf of the Owner’s transmission customers; provided , however , that at no time shall an Owner be entitled to post, sell, schedule or transmit transmission service or an amount of energy over the Transmission Facilities greater than its Capacity Share, unless otherwise mutually agreed to in writing in advance by the other Owner.

ARTICLE XX
MISCELLANEOUS

20.01      Notices .

(a)                Any notice, demand, request or other communication required or permitted to be given pursuant to this Agreement shall be in writing and signed by the Owner or Operator giving such notice, demand, request or other communication and shall be hand delivered or sent by certified mail, return receipt requested, or overnight courier to the other Owner and/or Operator at the address set forth below:

If to Idaho Power:

Idaho Power Company

1221 West Idaho Street

Boise, ID 83702

Attn:  Manager, Grid Operations

Telephone:  208-388-5669

With a copy to:

Idaho Power Company

1221 West Idaho Street

Boise, ID  83702

Attn:  Legal Department

Telephone:  208-388-2300

 

 

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If to PacifiCorp:

PacifiCorp

825 NE Multnomah Street, Suite 1600

Portland, OR 97232

Attn:  Director, Transmission Service

Telephone:  503-813-6712

With a copy to:

PacifiCorp

825 NE Multnomah Street, Suite 1600

Portland, OR 97232

Attn:  Legal Department

Telephone:  503-813-5854

If to Operator:

Idaho Power Company

1221 West Idaho Street

Boise, ID 83702

Attn:  Manager, Grid Operations

Telephone:  208-388-5669

With a copy to:

Idaho Power Company

1221 West Idaho Street

Boise, ID  83702

Attn:  Legal Department

Telephone:    208-388-2300

 

(b)               Each Owner and the Operator shall have the right to change the place to which any notice, demand, request or other communication shall be sent or delivered by similar notice sent in like manner to the other Owner(s) and the Operator.  The effective date of any notice, demand, request or other communication issued pursuant to this Agreement shall be when:  (i) delivered to the address of the Owner or Operator personally, by messenger, by a nationally or internationally recognized overnight delivery service or otherwise; or (ii) received or rejected by the Owner or Operator, if sent by certified mail, return receipt requested, in each case, addressed to the Owner or Operator at its address and marked to the attention of the person designated above (or to such other address or person as an Owner or Operator may designate by notice to the Owners and/or Operator effective as of the date of receipt by such Owners and/or Operator).

20.02      Entire Agreement .  This Agreement and the Exhibits attached hereto, and the other documents between the Owners referenced herein constitute the entire agreement between the Owners and the Operator and supersede all prior agreements and understandings, whether oral and written, between the Owners and the Operator with respect to the subject matter hereof.  There are no oral understandings, terms or conditions and neither Owner nor the Operator has

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relied upon any representation or warranty, expressed or implied, not contained in this Agreement.

 

20.03      Parties Bound .  This Agreement shall be binding upon each of the Owners and the Operator and their respective successors and permitted assigns.

20.04      Amendments .

(a)                Except as otherwise provided in Section 20.04(c) , this Agreement may not be amended, supplemented or otherwise modified, other than pursuant to an instrument in writing executed by the Owners.

(b)               Absent agreement of both Parties to the proposed change and except as otherwise provided in Section 20.04(c) , the standard of review for changes to this Agreement proposed by a Party, or FERC acting sua sponte, shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956); provided that the standard of review for any modification to this Agreement requested by non-contracting third parties shall be the most stringent standard permissible under then-applicable law.

(c)                Nothing contained in this Agreement shall be construed as affecting in any way the right of either Party to unilaterally make application to FERC under Section 205 or Section 206 of the Federal Power Act for a change in the charges set forth in Exhibit F .  It is the intent of the Parties that the standard of review that FERC will apply to any such unilateral application shall be the just and reasonable standard of review rather than the “public interest” standard of review.

20.05      Waivers .  No waiver by any Owner or the Operator of any one or more defaults by any other Owner or the Operator in the performance of any of the provisions of this Agreement shall be construed as a waiver of any other default or defaults whether of a like kind or different nature.  Any delay, less than any applicable statutory period of limitations, in asserting or enforcing any rights under this Agreement shall not be deemed a waiver of such rights.  Failure of any Owner or the Operator to enforce any provisions hereof shall not be construed to waive such provision, or to affect the validity of this Agreement or any part thereof, or the right of any Owner thereafter to enforce each and every provision thereof.

20.06      Choice of Law .  This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho, without giving effect to conflicts of laws principles.

20.07      Headings .  Article and Section headings used in this Agreement (including headings used in any Exhibits attached hereto) are for convenience of reference only and shall not affect the construction of this Agreement.

20.08      Relationship of Parties .  The covenants, obligations, and liabilities of the Owners are intended to be several and not joint or collective, and nothing herein contained shall ever be construed to create an association, joint venture, trust or partnership, or to impose a trust or

 

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partnership covenant, obligation or liability on or with regard to any of the Owners.  Each Owner shall be individually responsible for its own covenant, obligations and liability as herein provided.  No Owner shall be under the control of, or shall be deemed to control, the other Owner.  Neither Owner shall have a right nor power to bind the other Owner without its express written consent.

 

20.09      Severability .  In the event that any provision of this Agreement or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the Owners and the Operator.  The Owners and the Operator further agree to replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such illegal, void or unenforceable provision.

20.10      No Third Party Beneficiaries .  Nothing express or implied in this Agreement is intended to nor shall be construed to confer upon or give to any Person (other than the Owners and the Operator) any rights or remedies under or by reason of this Agreement or any transaction contemplated herein.

20.11      Further Assurances .  Each Owner and the Operator agrees to execute and deliver from time to time such additional documents, and take such additional actions, as may be reasonably required by the other Owner or the Operator to give effect to the purposes and intent hereof.

20.12      Conflict of Interest .  Nothing in this Agreement shall prohibit any Owner or the Operator from engaging in or possessing any interest in other projects or business ventures of any nature and description, independently or with others.

20.13      Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be original, and all of which together shall constitute one agreement.  Electronic transmission of any signed original document, and retransmission of any signed electronic transmission, shall be the same as delivery of an original.  At the request of either Owner or the Operator, the other Owner or the Operator, as applicable, will confirm electronically transmitted signatures by signing an original document.

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, each of the Owners has caused its duly authorized representative to execute this Hemingway Joint Ownership and Operating Agreement as of the date first above written.

 

 

IDAHO POWER:

IDAHO POWER COMPANY,

AS OWNER AND OPERATOR

By:  /s/ Dan B. Minor

Name:  Dan B. Minor

Title:  EVP, Operations

PACIFICORP:

PACIFICORP,

AS OWNER

By:  /s/ Patrick Reiten

Name:  Patrick Reiten

Title:  President

 

 

                                                                                                           


 


 

 

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EXHIBIT A

 

Description of Transmission Facilities and Common Facilities

 

 

Section I.  Description of Transmission Facilities. 1

 

The Transmission Facilities includes all above ground 500kV structures, bus, and equipment and associated foundations starting at the 230kV side of the transformer high-side air break, 501H, to the extents of the station yard where the MPSN (Midpoint Substation) 1 and SMLK (Summer Lake) line terminals depart to the tap line segments.  The major equipment included in the Transmission Facilities consists of six 500kV breakers and one spare 500kV breaker (stored on location), seventeen 500kV airbreaks, one SMLK line reactor bank (three 1-phase units), and one shunt capacitor bank and associated barrier fence attached to bus #2.  Also included in the Transmission Facilities are 13 control, protection and line carrier panels, 3 intertie cabinets and their associated control cables from the panels to the yard equipment.  The Transmission Facilities also includes all components associated with both tap segments for the MPSN 1 and SMLK line terminals extending and connecting to the existing Midpoint–Summer Lake Line.

STATION

 

 

 

 

QTY

Equipment Description

Item

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 4000Amp

205

1

Power Circuit Breaker, 550kV 2000Amp

206

1

Power Circuit Breaker, 550kV 2000Amp

204

1

Power Circuit Breaker, 550kV 2000Amp

204

10

Local Equipment Annunciator Units for Reactors and Breakers

 

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

1

Shunt Reactor, 317.5/550kV, 44.33 MVA

201-1

 

 

1 For asset accounting purposes, PacifiCorp may request unit of property breakdown information with greater detail than shown in this Exhibit A at the conclusion of construction.  Idaho Power will make reasonable and timely accommodation to such a request, not to exceed the level of detail produced for its own internal asset accounting purposes.

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EXECUTION COPY

 

 

 

 


1

Shunt Capacitor, 550kV 220MVAR Expandable to 330MVAR

203

13

Switch, Motor Operated Airbreak, 500kV 4000A

208

3

Switch, Motor Operated Airbreak, 500kV 2000A

209-1

1

Switch, Motor Operated Airbreak w/ GND Switch, 500kV 2000A

209-2

12

Capacitor Voltage Transformer, 500kV

211

6

Capacitor Voltage Transformer, 500kV w/ Carrier Accessories

212

6

Line Trap, 500kV 3000A

214-1

6

Line Tuner, Single Phase Units

214-2

12

Surge Arrestor, 318kV MCOV

215

6

Surge Arrestor, 144kV MCOV

238

138

Insulator, Station Post, 500kV 1800BIL

217

48

Insulator, Station Post, 500kV 1800BIL

218

153

Insulator, Suspension, Polymer 500kV Class

220

 

 

 

QTY

Structure Description

Item

2

Steel Structure, 500kV Line-Deadend A-Frame Structure

100-1

4

Steel Structure, 500kV Line-Deadend A-Frame Structure

100-2

51

Steel Structure, 500kV 3-ph Airbreak Support

106-1

12

Steel Structure, 500kV CCVT Structure

107-1

6

Steel Structure, 500kV Line Trap Structure

107-2

9

Steel Structure, 500kV Surge Arrestor Structure

108

10

Steel Structure, 500kV Strain Bus A-Frame Structure

101

2

Steel Structure, 500kV Transfer Bus Structure, Reactor

103

2

Steel Structure, 500kV Transfer Bus Structure, Spare for Reactor

103

6

Steel Structure, 500kV 3-ph Bus Support, Future Airbreak Support

106-2

117

Steel Structure, Lally, 500kV 1-ph Low

110

 

                                                                            48


                                                                             

 


 


 

 

EXECUTION COPY

 

 

 

 

 

Bus Support

 

3

Steel Structure, Lally, 500kV 1-ph Low Bus Support

110

16

Steel Structure, Lally, 500kV 1-ph Low Bus Support

111

 

 

 

QTY

Conductor Description

Item

3,500 ft

Conductor, 6” Aluminum Pipe, Schedule 80, 6063-T6

300

3,500 ft

Conductor, 1590 ACSR (Dampening for 6” Bus)

303

20,000 ft

Conductor, Strain Bus, 1780 ACSS “CHUKAR” 1.601 Diameter

304

6,750 ft

Conductor, 3/8” EHS Shield Wire

306

75,615 ft

Control Cable

 

 

 

 

QTY

Panel Description

P Number

1

Panel E9: SMLK 11-1 (Pri. #1 Relay)

5933

1

Panel E10: SMLK 11-2 (Pri. #2 Relay & 535A/536A Control)

5934

1

Panel E11: SMLK 11-3 (Pri. #3 Relay)

5935

1

Panel E12: SMLK L511 Protection & 511Z Control

5936

1

Panel E13: SMLK 511Z BF & Lockout

5937

1

Panel F14: RAS A & B (MPSN-HMWY-SMLK Remedial Action)

5947

1

Panel G13: MPSN#1 Power Line Carriers (RFL-9780-1, RFL-9780-2)

5953

1

Panel G14: SMLK Power Line Carriers (RFL-9780-1, RFL-9780-2)

5954

1

Panel H9: MPSN#1 11-1 (Pri. #1 Relay)

5955

1

Panel H10: MPSN#1 11-2 (Pri. #2 Relay & 538A/539A Control)

5956

1

Panel H11: MPSN#1 11-3 (Pri. #3 Relay)

5957

1

Panel L13: C513 11-1 (Pri. #1 Relay & 513W Control)

5966

1

Panel L14: C513 11-2 (Pri. #2 Relay)

5967

13

Panel Rack and Frames

 

1

Intertie Cabinet EF2: SUMMER LAKE 500kV LINE (535A/536A/511Z/L511/CCVT’s)

5985

 

                                                                            49


                                                                             

 


 


 

 

EXECUTION COPY

 

 

1

Intertie Cabinet GH@: MPSN #1 500kV LINE (538A/539A/CCVT’s)

5987

1

Intertie Cabinet KL2: MPSN #2 500kV LINE(FUTURE) / C513

5991

 

 

 

QTY

Foundation Description

 

156

Other structures (for Items 101, 103, 106-2, 100, 111)

 

6

Deadend Structures (for Items 100-1 and 100-2)

 

78

Equipment Structures

 

3

Reactor oil containment

 

370 ft

Fence, Capacitor Bank Barrier

 

6

Key Interlock for Capacitor Bank Barrier Fence

 

 

 

 

TAP

 

 

 

 

 

QTY

Line Material Description

 

8

Dead-end, Single Pole Tubular Steel w/ Foundation

 

2

Tangent, Single Pole Tubular Steel w/ Foundation

 

2406

Insulator, 10” 52-5 b&s 30k

 

6

Insulator, Horizontal Post 500kV

 

40,500 ft

Conductor,  1272 ACSR 45/7 Bitten

 

8,500 ft

Overhead Ground Wire, 3/8 EHS Steel

 

 

 

 

Section II.  Description of Common Facilities.

 

Description

 

 

Land

 

 

Site Prep and Improvements

 

 

Fencing

 

 

Grounding

 

 

Cable Trench

 

 

Control Building

 

 

DC Batteries and Chargers

 

 

Local Service

 

 

Cabling and Controls not directly associated with Transmission Facilities above or 230 kV equipment

 

 

 

 

                                                                           50


                                                                             

 


 


 

 

EXECUTION COPY

 

 

 

EXHIBIT B

 

[Intentionally omitted.]

 

                                                                         51


                                                                             

 


 


 

 

EXECUTION COPY

 

 

 

EXHIBIT C

 

Ownership Interests

 

Owner

Ownership Interest

 

 

Idaho Power

41.0%

PacifiCorp

59.0%

 

 

 

Each Owner’s percentage Ownership Interest in the Transmission Facilities shall be determined based on the average of the percentage of Transmission Line Capacity of each 500 kV transmission line or transformer that has a connection to the Transmission Facilities at the Hemingway Substation that such Owner owns or controls.  For purposes of this Exhibit C , “ Transmission Line Capacity ” means, in respect of each 500 kV transmission line or transformer that has a connection to the Transmission Facilities at the Hemingway Substation, the total amount of rated transmission capacity of such transmission line or transformer, provided that the Owners agree that (i) neither the Transmission Line Capacity nor either Owner’s Ownership Interest shall change as a result of a temporary or permanent change in the rated transmission capacity of any such transmission lines or transformers that are connected to the Transmission Facilities at the Hemingway Substation and that were installed during 2010 and (ii) the Transmission Line Capacity and the Owners’ Ownership Interests shall only change, if at all, when an additional 500 kV transmission line or transformer is interconnected to the Hemingway Substation after 2010.

 

 

                                                                            52


                                                                             

 


 


 

 

EXECUTION COPY

 

 

 

EXHIBIT D

 

[Intentionally omitted.]

 

 

                                                                         53


                                                                             

 


 


 

 

EXECUTION COPY

 

 

 

EXHIBIT E

 

Construction Budget

 

$375,920.00

 

 

                                                                           54


                                                                             

 


 


 

 

EXECUTION COPY

 

 

 

EXHIBIT F

 

Monthly Transmission Facilities O& M Charge and
Monthly Common Facilities Charge

 

1.                  The Monthly Transmission Facilities O&M Charge each month during the Term shall be equal to the product of (1) the Installed Cost of the Transmission Facilities, (2) PacifiCorp’s Ownership Interest, and (3) the O&M Expense Factor.

For purposes of this Exhibit F :

 

(i)         “ Installed Cost of the Transmission Facilities ” means the original and actual aggregate Cost of the Transmission Facilities incurred by or on behalf of Idaho Power as of the date construction of the Transmission Facilities is completed pursuant to Article III , trued-up to final Cost after all work orders for the construction of the Transmission Facilities are closed to account; and

 

(ii)        the “ O&M Expense Factor ” means 0.2036% per month.

 

2.                  The Monthly Common Facilities Charge each month during the Term shall be equal to the product of (1) the Installed Cost of the Common Facilities, (2) PacifiCorp’s Ownership Interest, and (3) the Common Facilities Factor.

For purposes of this Exhibit F :

 

(i)         “ Installed Cost of the Common Facilities ” means the original and actual aggregate Cost of the Common Facilities incurred by or on behalf of Idaho Power as of the date construction of the Transmission Facilities is completed pursuant to Article III , trued-up to final Cost after all work orders for the construction of the Common Facilities are closed to account; and

 

(ii)                          the " Common Facilities Factor " means 0.9653% per month .  

 

                      55


                                                                             

 


 


 

 

EXECUTION COPY

 

 

 

EXHIBIT G

 

Point of Interconnection

 

See attached.

 

 

                                                                           56


                                                                             

 


 

 

EXECUTION COPY

 

                                                                            57

 


 

EXECUTION COPY

 

                                                                            58


 

 

EXECUTION COPY

 

 

EXHIBIT H

Milestones

 

 

Milestone

Milestone Date

Filing of this Agreement at FERC for approval

5 Business Days after the Execution Date

500 kV yard energized

May 28, 2010

WECC ratings approved

June 15, 2010

 

 

                                                                          59


                                                                             

 


 


 

 

EXECUTION COPY

 

 

 

SCHEDULE 13.01(f)

 

PacifiCorp’s Outstanding Governmental Authorizations

 

1.         Acceptance of this Agreement for filing by FERC under Section 205 of the Federal Power Act.

 

 

                                                                          60


                                                                             

 


 


 

 

EXECUTION COPY

 

 

 

 

SCHEDULE 13.02(f)

 

Idaho Power’s Outstanding Governmental Authorizations

 

1. Acceptance of this Agreement for filing by FERC under Section 205 of the Federal Power Act.  

 

                                                                          61


                                                                             

 


 

 

 

 

 

 

Exhibit 10.71

 

 

 

EXECUTION COPY

 

 

 

 

 

 

 

 

 

 

 

 

POPULUS JOINT OWNERSHIP AND
OPERATING AGREEMENT

 

BETWEEN

 

PACIFICORP,

 

AS OWNER AND OPERATOR

 

AND

 

IDAHO POWER COMPANY,

 

AS OWNER

 

 

 

May 3, 2010  

 

                                                                             


 


 

 

EXECUTION COPY

 

 

TABLE OF CONTENTS

Page

ARTICLE I DEFINITIONS; RULES OF INTERPRETATION

2

1.01

Definitions

2

1.02

Rules of Construction

9

ARTICLE II TERM

10

2.01

Effectiveness of this Agreement

10

2.02

FERC Filing

10

2.03

Term

10

2.04

Termination

10

2.05

Effect of Termination

10

ARTICLE III CONSTRUCTION

11

3.01

Engineering, Design and Construction of the Jointly-Developed

Transmission Facilities

11

3.02

Interconnection

11

3.03

Rights-of-Way

11

3.04

Monthly Reports

11

3.05

Development and Construction Costs

12

ARTICLE IV OWNERSHIP INTERESTS

12

4.01

Ownership Interests

12

4.02

Owner’s Capacity Share

13

4.03

Qualified Owner

13

4.04

No Right to Use

13

4.05

Payments

13

4.06

Waiver of Partition Rights

13

ARTICLE V OPERATOR

14

5.01

Appointment of Operator.

14

5.02

Authority of Operator

14

5.03

Standard of Work

15

5.04

Delegation of Responsibilities

15

5.05

Governmental Authorizations

15

5.06

Access

16

 

 

 

 

 

 

 

 

 

                                                                              i


 


 

 

EXECUTION COPY

 

 

5.07

Insurance

17

5.08

Invoices

18

5.09

Disputed Amounts

18

5.1

Assistance

19

5.11

Remedies

19

ARTICLE VI OPERATION AND MAINTENANCE; CURTAILMENT;

  INTERCONNECTION WITH THIRD PARTIES; COMMON FACILITIES

19

6.01

Operation and Maintenance; Capital Upgrades and Improvements

19

6.02

Curtailment

20

6.03

Interconnection with Third Parties

20

6.04

Common Facilities

20

ARTICLE VII CAPITAL UPGRADES PROPOSED BY AN OWNER

21

7.01

Capital Upgrades

21

ARTICLE VIII PHYSICAL DAMAGE TO TRANSMISSION FACILITIES;

CONDEMNATION

23

8.01

Rebuilding Damaged Facilities

23

8.02

Decision not to Rebuild

24

8.03

Purchase of Ownership Interest

24

8.04

Cooperation

24

8.05

Condemnation

24

ARTICLE IX RETIREMENT AND DECOMMISSIONING

25

9.01

Decision to Retire Transmission Facilities

25

9.02

Costs of Decommissioning

25

9.03

Purchase of Ownership Interest

26

9.04

Cooperation

26

ARTICLE X INTERCONNECTION

26

10.01

Grant of Interconnection

26

10.02

Interconnection Operating Procedures

26

10.03

Interconnection Energization

26

10.04

Metering

27

10.05

Service Conditions

27

10.06

Survival of Interconnection Provision

28

 

 

 

 

 

 

 

 

 

                                                                             ii                                                                            


 


 

 

EXECUTION COPY

 

 

ARTICLE XI FORCE MAJEURE

28

11.01

Force Majeure Defined

28

11.02

Effect of Force Majeure

29

ARTICLE XII EVENTS OF DEFAULT

30

12.01

Event of Default

30

12.02

Cure by Non-Defaulting Owner

30

12.03

Remedies

31

ARTICLE XIII REPRESENTATIONS AND WARRANTIES

31

13.01

Representations and Warranties of Idaho Power.

31

13.02

Representations and Warranties of PacifiCorp.

32

ARTICLE XIV INDEMNIFICATION

32

14.01

Indemnities.

32

14.02

Notice and Participation

33

14.03

Net Amount

34

14.04

No Release of Insurers

34

14.05

Mitigation

35

14.06

Assertion of Claims

35

14.07

Survival of Obligation

35

14.08

Limitation on Liability.

35

ARTICLE XV PROPRIETARY INFORMATION

35

15.01

Disclosure of Proprietary Information Prohibited

35

15.02

Disclosure by Representatives

36

15.03

Permitted Disclosures

36

15.04

Injunctive Relief

36

15.05

Publicity.

36

15.06

Proprietary Information Defined

36

15.07

Survival

37

ARTICLE XVI RELIABILITY

37

16.01

Reliability

37

ARTICLE XVII TAXES

37

17.01

No Partnership

37

17.02

761 Election

37

17.03

Responsibility for Taxes

38

 

 

 

 

 

 

 

 

                                                                             iii                                                                            


 


 

 

EXECUTION COPY

 

 

17.04

Indemnification

38

17.05

Determination of Depreciation and Other Matters

38

ARTICLE XVIII DISPUTES

38

18.01

Exclusive Procedure

38

18.02

Dispute Notices

38

18.03

Informal Dispute Resolution

39

18.04

Submission of Dispute to FERC or Approved Courts

39

18.05

Continued Performance

39

ARTICLE XIX ASSIGNMENT

39

19.01

Prohibited Transfers and Assignments

39

19.02

Permitted Assignments and Transfers

40

ARTICLE XX MISCELLANEOUS

41

20.01

Notices

41

20.02

Entire Agreement

42

20.03

Parties Bound

42

20.04

Amendments

43

20.05

Waivers

43

20.06

Choice of Law

43

20.07

Headings

43

20.08

Relationship of Parties

43

20.09

Severability

44

20.1

No Third Party Beneficiaries

44

20.11

Further Assurances

44

20.12

Conflict of Interest

44

20.13

Counterparts

44

 

 

                                                                             iv                                                                            


 


 

 

EXECUTION COPY

 

 

EXHIBITS

Exhibit A

Description of Transmission Facilities and Common Facilities

Exhibit B

[Intentionally omitted.]

Exhibit C

Ownership Interests

Exhibit D

[Intentionally omitted.]

Exhibit E

Construction Budget

Exhibit F

Monthly Transmission Facilities O&M Charge

and Monthly Common Facilities Charge

Exhibit G

Point of Interconnection

Exhibit H

Milestones

SCHEDULES

Schedule 13.01(f)

Idaho Power’s Outstanding Governmental Authorizations

Schedule 13.02(f)

PacifiCorp’s Outstanding Governmental Authorizations

 

 

                                                                             v                                                                            


 


 

 

EXECUTION COPY

 

 

POPULUS JOINT OWNERSHIP AND OPERATING AGREEMENT

 

This Populus Joint Ownership and Operating Agreement, dated this 3 rd day of May, 2010 (the “ Execution Date ”), is between PacifiCorp, an Oregon corporation, acting in its regulated transmission provider function (“ PacifiCorp ”), and Idaho Power, an Idaho corporation, acting in its regulated transmission provider function (“ Idaho Power ”).  Each of PacifiCorp and Idaho Power are sometimes hereinafter referred to individually as “ Owner ” and collectively as “ Owners ”.

RECITALS:

WHEREAS, PacifiCorp owns and operates certain facilities for the transmission of electric power and energy in interstate commerce, including the 345 kV Populus substation (the “ Populus Substation ”) which PacifiCorp is currently constructing near Downey, Idaho to provide additional transfer capability for power to serve PacifiCorp’s retail and wholesale customers and to provide line terminal connections for existing transmission lines located near the Populus Substation including the Kinport-Bridger Line, the Borah-Bridger Line and the Borah-Ben Lomond Line (each as defined below);

WHEREAS, Idaho Power has contractual rights to a portion of the transmission capacity of the Kinport-Bridger Line and the Borah-Bridger Line, both of which are located near the Populus Substation;

WHEREAS, PacifiCorp and Idaho Power believe that interconnecting the PacifiCorp Transmission System at the Populus Substation with the Kinport-Bridger Line and the Borah-Bridger Line will benefit both of the Owners and their customers;

WHEREAS, PacifiCorp and Idaho Power are parties to that certain Joint Purchase and Sale Agreement, dated as of April 30, 2010 (the “ JPSA ”), pursuant to which PacifiCorp has sold to Idaho Power and Idaho Power has purchased from PacifiCorp an undivided ownership interest in certain transmission and interconnection equipment and facilities at the Populus Substation used in connection with the transmission of electric power and energy (consisting of the equipment and facilities described in Section I of Exhibit A that were installed at the Hemingway Substation on or before the Closing Date, the “ Transferred Transmission Facilities ”);

WHEREAS, PacifiCorp individually owns additional equipment and facilities at the Populus Substation that serve the PacifiCorp Transmission System and will not be part of the Transmission Facilities (as defined below), but that PacifiCorp will make available to support the operation of the Transmission Facilities (as further described in Section II of Exhibit A , the “ Common Facilities ”);

WHEREAS, PacifiCorp individually owns additional equipment and facilities at the Populus Substation that will not be part of the Transmission Facilities, jointly owned by the Parties, or part of the Common Facilities used to support the operation of the Transmission Facilities (the “ PacifiCorp Individually-Owned Populus Facilities ”); and

 

                                                                             


 


 

 

EXECUTION COPY

 

WHEREAS, Idaho Power and  PacifiCorp desire to memorialize the terms and conditions by which they will: (i) construct and commission additional transmission and interconnection equipment and facilities at the Populus Substation used in connection with the transmission of electric power and energy (consisting of the equipment and facilities described in Section I of Exhibit A that had not been installed at the Hemingway Substation on or before the Closing Date, the “ Jointly-Developed Transmission Facilities ”); (ii) jointly own and develop the Transferred Transmission Facilities and the Jointly-Developed Transmission Facilities (collectively, the “ Transmission Facilities ”), (iii) operate and maintain the Transmission Facilities; (iv) interconnect the PacifiCorp Transmission System and the Transmission Facilities at the Populus Substation; and (v) establish the obligations of the Operator (as defined below) with respect to compliance with Reliability Standards (as defined below) applicable to the Transmission Facilities.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Idaho Power and PacifiCorp agree as follows:

ARTICLE I
DEFINITIONS; RULES OF INTERPRETATION

1.01          Definitions .  Unless the context otherwise requires, the following capitalized terms have the meanings given to them below:

Affected Party ” has the meaning given to such term in Section 11.01 .

Affected System ” has the meaning given to such term in the applicable Owner’s OATT.

Affected System Operator ” has the meaning given to such term in the applicable Owner’s OATT.

Affiliate ” means, with respect to a Person, each other Person that, directly or indirectly, controls, is controlled by or is under common control with, such designated Person; provided , however , that in the case of PacifiCorp, “ Affiliate ” means MidAmerican Energy Holdings Company and its direct and indirect subsidiaries.  For the purposes of this definition, “ control ” (including with correlative meanings, the terms “ controlled by ” and “ under common control with ”), as used with respect to any Person, shall mean (i) the direct or indirect right to cast at least fifty percent (50%) of the votes exercisable at an annual general meeting (or its equivalent) of such Person or, if there are no such rights, ownership of at least fifty percent (50%) of the equity or other ownership interest in such Person, or (ii) the right to direct the policies or operations of such Person.

Agreement ” means this Joint Ownership and Operating Agreement (including all Exhibits attached hereto), as the same may be amended and supplemented from time to time in accordance with the terms hereof.

Amendment ” has the meaning given to such term in Section 7.01(a) .

Approved Courts ” has the meaning given to such term in Section 18.04 .

                                                                             2


 


 


 

 

EXECUTION COPY

 

Bankrupt ” means, with respect to any Person, that such Person:  (i) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, (ii) makes an assignment or any general arrangement for the benefit of creditors, (iii) otherwise becomes insolvent (however evidenced), (iv) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets, or (v) is generally unable to pay its debts as they fall due.

Ben Lomond-Populus Lines ” means the three (3) 345 kV transmission lines extending from the Ben Lomond Substation to the Populus Substation.

Ben Lomond Substation ” means the existing substation located near Ogden, Utah, which is owned by PacifiCorp.

 “ Borah Substation ” means the existing substation located near Idaho Falls, Idaho, which is owned by Idaho Power.

Borah-Bridger Line ” means the 345 kV transmission line extending from the Borah Substation to the Bridger Substation.

Borah-Ben Lomond Line ” means the 345 kV transmission line extending from the Borah Substation to the Ben Lomond Substation.

Borah-Populus Lines ” means the two (2) 345 kV transmission lines extending from the Borah Substation to the Populus Substation.

Bridger Substation ” means the existing substation located near Rock Springs, Wyoming, which is jointly owned by Idaho Power and PacifiCorp.

Business Days ” means any day except a Saturday, Sunday and any day which is a legal holiday or a day on which banking institutions in New York, New York are authorized or obligated by Governmental Requirements to close.

Capacity Share ” has the meaning given to such term in Section 4.02 .

Capital Upgrade Notice ” has the meaning given to such term in Section 7.01 .

Claims ” has the meaning given to such term in Section 14.01(a) .

Closing Date ” has the meaning given to such term in the JPSA.

Code ” has the meaning given to such term in Section 17.02 .

Commercially Reasonable Efforts ” means the level of effort that a reasonable electric utility would take in light of the then known facts and circumstances to accomplish the required action at a then commercially reasonable cost (taking into account the benefits to be gained thereby).

                                                                             3


 


 


 

 

EXECUTION COPY

 

 

Common Facilities ” has the meaning given to such term in the recitals.

Construction Budget ” has the meaning given to such term in Section 3.05(b) .

Construction Costs ” has the meaning given to such term in Section 3.05(a) .

Construction Costs Cap ” has the meaning given to such term in Section 3.05(b) .

Construction Project ” has the meaning given to such term in Section 3.01(a) .

Continuing Owner ” has the meaning given to such term in Section 8.03 .

Costs ” means, with respect to the Operator’s construction of facilities pursuant to this Agreement, including the Transmission Facilities and capital upgrades and improvements thereto, or such construction on behalf of the Operator, the Operator’s actual cost of (i) preliminary surveys and investigations and property acquisitions in connection with such facilities and (ii) the development, design, engineering, procurement and construction of such facilities, including an allowance for funds used during construction and applicable overheads determined in accordance with the Operator’s customary practices, as calculated in accordance with FERC’s Uniform System of Accounts.

Damaged Facilities ” has the meaning given to such term in Section 8.01 .

Damage Notice ” has the meaning given to such term in Section 8.01 .

Decommissioning Notice ” has the meaning given to such term in Section 9.03 .

Defaulting Owner ” has the meaning given to such term in Section 12.01 .

Delegate ” has the meaning given to such term in Section 5.04 .

Dispute ” has the meaning given to such term in Section 18.01 .

Dispute Notice ” has the meaning given to such term in Section 18.02 .

Disputing Party ” has the meaning given to such term in Section 18.02 .

Electing Owner ” has the meaning given to such term in Section 7.01(a) .

Event of Default ” has the meaning given to such term in Section 12.01 .

Execution Date ” has the meaning given to such term in the preamble.

Executive(s) ” has the meaning given to such term in Section 18.03(a) .

 “ FERC ” means the Federal Energy Regulatory Commission.

FERC Methodology ” has the meaning given to such term in Section 5.08(b) .

                                                                             4


 


 


 

 

EXECUTION COPY

 

FERC Uniform System of Accounts ” means the Uniform System of Accounts Prescribed for Public Utilities and Licensees Subject to the Jurisdiction of the Federal Power Act prescribed by FERC, and codified as of the Execution Date at 18 C.F.R. Part 101, as the same may be amended from time to time.

Force Majeure ” has the meaning given to such term in Section 11.01 .

Good Utility Practice ” means any of the practices, methods and acts engaged in or approved by a significant portion of the electric utility industry during the relevant time period, or any of the practices, methods and acts which, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, would have been expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition.  Good Utility Practice is not intended to be limited to the optimum practice, method, or act to the exclusion of all others, but rather to be acceptable practices, methods, or acts generally accepted in the region, including those practices required by Federal Power Act section 215(a)(4), 16 U.S.C. § 824o(a)(4)(2006).

Governmental Authority ” means any federal, state, local or municipal governmental body; any governmental, quasi-governmental, regulatory or administrative agency, commission, body or other authority exercising or entitled to exercise any administrative, executive, judicial, legislative, policy, regulatory or taxing authority or power, including FERC, NERC or any regional reliability council; or any court or governmental tribunal, in each case, having jurisdiction over either Owner (including PacifiCorp in its capacity as Operator) or any of its Affiliates or the ownership, use, operation and maintenance, repair and reconstruction, or retirement and decommissioning of all or a portion of the Transmission Facilities.

Governmental Authorizations ” means any license, permit, order, approval, filing, waiver, exemption, variance, clearance, entitlement, allowance, franchise, or other authorization from or by a Governmental Authority.

Governmental Requirements ” means all laws, statutes, ordinances, rules, regulations, codes, and similar acts or promulgations or other legally enforceable requirements of any Governmental Authority.

Idaho Power ” has the meaning given to such term in the preamble.

Idaho Power Transmission System ” means the transmission facilities owned, controlled or operated by Idaho Power that are used to transmit electricity to Idaho Power’s retail and wholesale electric service customers.

Indemnified Party ” has the meaning given to such term in Section 14.01(a) .

Indemnifying Party ” has the meaning given to such term in Section 14.01(a) .

Interconnection ” means the interconnection of the Populus Substation with (i) the Borah-Populus Lines, (ii) the Ben Lomond-Populus Lines, (iii) the Kinport-Populus Line, and (iv) the Populus-Bridger Lines at the Point of Interconnection, in each case, as more specifically described in the one-line diagram set forth in Exhibit G .

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Interconnection Customer ” has the meaning given to such term in the applicable Owner’s OATT.

Interconnection Owner ” has the meaning given to such term in Section 6.03 .

Interrupting Owner ” has the meaning given to such term in Section 10.05(c) .

Jointly-Developed Transmission Facilities ” has the meaning given to such term in the recitals.

JPSA ” has the meaning given to such term in the recitals.

Kinport-Bridger Line ” means the 345 kV transmission line extending from the Kinport Substation to the Bridger Substation.

Kinport-Populus Line ” means the 345 kV transmission line extending from the Kinport Substation to the Populus Substation.

Kinport Substation ” means the existing substation located near Pocatello, Idaho, which is owned by Idaho Power.

Losses ” mean any and all damages and losses, deficiencies, liabilities, taxes , obligations, penalties, judgments, settlements, claims, payments, fines, interest, costs and expenses, whether or not resulting from third party claims, including the costs and expenses of any and all actions and demands, assessments, judgments, settlements and compromises relating thereto and the costs and expenses of attorneys’, accountants’, consultants’ and other professionals’ fees and expenses incurred in the investigation or defense thereof or the enforcement of rights hereunder and costs and expenses of remediation (including, in the case of remediation, all expenses and costs associated with financial assurance); provided , however , that in no event shall Losses include lost profits or damages and losses excluded under Section 14.08 .

 

Manager ” has the meaning given to such term in Section 18.03(a) .

Metering Equipment ” means all metering facilities and equipment, including meters, to be constructed and installed as part of the Transmission Facilities, as further described in Exhibit A .

Monthly Common Facilities Charge ” has the meaning set forth in Exhibit F .

Monthly Transmission Facilities O&M Charge ” has the meaning set forth in Exhibit F .

NERC ” means the North American Electric Reliability Council.

Non-Defaulting Owner ” means an Owner that is not a Defaulting Owner.

Non-Operating Owner ” means Idaho Power.

 

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OATT ” means, with respect to each Owner, the Owner’s Open Access Transmission Tariff on file with FERC.

Operator ” means PacifiCorp, in its capacity as Operator under this Agreement.

Other Costs ” has the meaning given to such term in Section 5.08(a) .

Other Costs Records ” has the meaning given to such term in Section 5.06(b) .

Owner ” and “ Owners ” has the meaning given to such term in the preamble.

Ownership Interest ” means the tenant-in-common undivided ownership interest of an Owner in the Transmission Facilities which is set forth on Exhibit C , as the same may be adjusted from time to time pursuant to Exhibit C .

PacifiCorp ” has the meaning given to such term in the preamble.

PacifiCorp Individually-Owned Populus Facilities ” has the meaning given to such term in the recitals.

PacifiCorp Transmission System ” means the transmission facilities owned, controlled or operated by PacifiCorp that are used to transmit electricity to PacifiCorp’s retail and wholesale electric service customers.

Party ” means PacifiCorp or Idaho Power individually, and “ Parties ” means PacifiCorp and Idaho Power collectively.

Person ” means an individual, partnership, corporation, limited liability company, joint venture, association, trust, unincorporated organization, Governmental Authority, or other form of entity.

Point of Interconnection ” means the points of interconnection between the Transmission Facilities and PacifiCorp’s Transmission System, as described in the one-line diagram set forth in Exhibit G .

Populus Access Easement Agreement ” means the Populus Access Easement Agreement, dated as of approximately even date herewith, entered into by Idaho Power and PacifiCorp.

 “ Populus-Bridger Lines ” means the two (2) 345 kV transmission lines extending from the Populus Substation to the Bridger Substation.

 “ Populus Substation ” has the meaning given to such term in the recitals.

Proprietary Information ” has the meaning given to such term in Section 15.06 .

Qualified Owner ” means an Owner that has an OATT on file with FERC under which it is authorized to provide transmission service on its transmission system.

Reduction Event ” has the meaning given to such term in Section 6.02 .

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Regulations ” has the meaning given to such term in Section 17.02 .

Reliability Standards ” means all reliability criteria for system users established by WECC or such other regional or national standard setting body with authority to promulgate or set such criteria (including NERC’s reliability standards), as such criteria may be adopted or modified from time to time.

Remaining Owner ” has the meaning given to such term in Section 9.03 .

Representatives ” means, in respect of an Owner or Operator, the directors, officers, shareholders, partners, members, employees, agents, consultants, contractors or other representatives of such Owner or Operator.

Rights-of-Way ” means all rights-of-way, easements and other interests (including fee interests) in real property on which the Transmission Facilities are or will be constructed that are owned by PacifiCorp or its Affiliates.

Tax Indemnifying Party ” has the meaning given to such term in Section 17.04 .

Tax Indemnitee Party ” has the meaning given to such term in Section 17.04 .

Taxes ” has the meaning given to such term in Section 17.03 .

Term ” has the meaning given to such term in Section 2.03 .

Transferee ” has the meaning given to such term in Section 15.01 .

Transferor ” has the meaning given to such term in Section 15.01 .

Transferred Transmission Facilities ” has the meaning given to such term in the recitals.

Transmission Facilities ” has the meaning given to such term in the recitals.

Transmission Facilities Contracts ” means (i) the “Populus Substation Facilities Contracts” as defined in the JSPA and (ii) each agreement, instrument or other contract relating to or in connection with the Transmission Facilities that the Operator enters into pursuant to this Agreement.

 

Transmission System ” means, in the case of PacifiCorp, the PacifiCorp Transmission System, and, in the case of Idaho Power, the Idaho Power Transmission System.

Unauthorized Use ” means the unauthorized use of the generation or transmission facilities of any other Person.

WECC ” means the Western Electricity Coordinating Council or any successor thereto.

WIS Agreement ” has the meaning given to such term in Section 14.08(b) .

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1.02          Rules of Construction .  The following rules of interpretation shall apply in this Agreement:

(a)                The masculine shall include the feminine and neuter.

(b)               References to “Articles,” “Sections” and “Exhibits” shall be to articles, sections and exhibits of this Agreement.

(c)                The Exhibits attached hereto are incorporated in and are intended to be a part of this Agreement.

(d)               This Agreement was negotiated and prepared by both Parties with the advice and participation of counsel.  The Parties have agreed to the wording of this Agreement and none of the provisions hereof shall be construed against one Party on the ground that such Party is the author of this Agreement or any part hereof.

(e)                Each reference in this Agreement to any agreement or document or a portion or provision thereof shall be construed as a reference to the relevant agreement or document as amended, supplemented or otherwise modified from time to time with the written approval of both the Parties.

(f)                Each reference in this Agreement to Governmental Requirements and to terms defined in, and other provisions of, Governmental Requirements shall be references to the same (or a successor to the same) as amended, supplemented or otherwise modified from time to time.

(g)               The term “day” shall mean a calendar day, the term “month” shall mean a calendar month, and the term “year” shall mean a calendar year.  Whenever an event is to be performed, a period commences or ends, or a payment is to be made on or by a particular date and the date in question falls on a day which is not a Business Day, the event shall be performed, or the payment shall be made, on the next succeeding Business Day; provided, however , that all calculations shall be made regardless of whether any given day is a Business Day and whether or not any given period ends on a Business Day.

(h)               Each reference in this Agreement to a Person includes its successors and permitted assigns; and each reference to a Governmental Authority includes any Governmental Authority succeeding to its functions and capacities.

(i)                 In this Agreement, the words “include,” “includes” and “including” are to be construed as being at all times followed by the words “without limitation.”

(j)                 The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall, unless otherwise specified, refer to this Agreement as a whole and not to any particular provision of this Agreement.

 

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ARTICLE II
TERM

2.01          Effectiveness of this Agreement .  This Agreement shall become effective upon the Execution Date.

2.02          FERC Filing .  Within five (5) Business Days after the Execution Date, the Operator, on behalf of the Owners, shall file this Agreement with FERC as a “ Rate Schedule ” within the meaning of Part 35 of FERC’s regulations.  Each of the Owners shall support this Agreement in its current form at FERC when filed.  Each Owner shall reasonably cooperate with the Operator with respect to obtaining FERC approval of such FERC filing and provide any information, including testimony, reasonably required by the Operator to comply with the applicable FERC filing requirements.

2.03          Term .  The term of this Agreement (“ Term ”) shall commence upon the Execution Date and shall continue in full force and effect until terminated in accordance with the provisions hereof.

2.04          Termination .  Subject to Section 2.05 , this Agreement shall terminate if one or more of the following events occur:

(a)                the Transmission Facilities are damaged and destroyed and the Owners decide not to repair or rebuild (or cannot reach agreement to repair or rebuild) the Damaged Facilities in accordance with Article VIII ;

(b)               the Transmission Facilities are retired and decommissioned in accordance with Article IX ;

(c)                all of the Ownership Interests in the Transmission Facilities are owned by only one Owner;

(d)               by mutual written agreement of the Owners; or

(e)                this Agreement is terminated by exercise of remedies pursuant to Section 12.03 .

2.05     Effect of Termination .

(a)        If this Agreement is terminated pursuant to Section 2.04 , then, except as for those provisions that are expressly intended to survive termination and, subject to Section 2.05(b) and receipt of any necessary Governmental Authorizations required by applicable Governmental Requirements, this Agreement shall terminate and become void and of no further force and effect, without further action by either Party, provided that neither Party shall be relieved from any of its obligations or liabilities hereunder accruing prior thereto.

(b)        In the event that this Agreement is terminated pursuant to Section 2.04 and the Non-Operating Owner continues to own all or a portion of the Ownership Interests in the Transmission Facilities, then:  (i) the Operator shall, upon written notice from the Non-Operating

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Owner delivered to the Operator no later than fifteen (15) Business Days after termination of this Agreement pursuant to Section 2.04 , continue to perform such of its obligations and covenants in Articles VI , VII , VIII , X and XVI as are set forth in the notice; (ii) such obligations and covenants, together with Articles V , VI , VII , VIII , XI , X , XII , XIV , XV , XVIII , XIX and XX (to the extent applicable to the surviving covenants and obligations), shall continue in full force and effect notwithstanding the termination of this Agreement; and (iii) the Parties shall amend this Agreement to reflect such changes to this Agreement as shall be necessary and mutually acceptable to the Parties to conform this Agreement to the surviving provisions of this Agreement in accordance with this Section 2.05(b) .

ARTICLE III
CONSTRUCTION

3.01          Engineering, Design and Construction of the Jointly-Developed Transmission Facilities .

(a)                The Operator shall design, engineer, procure, construct, install, manage and perform all other activities necessary for the development, construction and commissioning of the Jointly-Developed Transmission Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations (the “ Construction Project ”).

(b)               The Operator shall use Commercially Reasonable Efforts to achieve each of the milestones by its respective milestone date as set forth in Exhibit H.  The Operator shall provide the Owners with prompt written notice of the date upon which it has achieved each milestone.

3.02          Interconnection .  PacifiCorp shall grant the Operator such access to the Kinport-Bridger Line and Borah-Bridger Line during the requested outage period to enable the Operator to interconnect the Transmission Facilities with the Populus Substation.  The Owners and the Operator recognize the need to use Commercially Reasonable Efforts to expedite all work with all due diligence, consistent with Good Utility Practice, so as to minimize outage times.

3.03          Rights-of-Way .  The Operator shall maintain the Rights-of-Way in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.

3.04          Monthly Reports .  Each month prior to the final completion and commissioning of the Transmission Facilities, the Operator shall prepare and deliver to the Owners reasonably detailed status reports, in form and substance reasonably acceptable to the Owners, regarding the implementation of the Construction Project, including (i) any expected delays (and their duration) in achieving any milestone by the respective milestone date as set forth on Exhibit H and (ii) the aggregate amount of Construction Costs incurred to date compared to the budgeted amount of Construction Costs set forth in the Construction Budget.

 

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3.05          Development and Construction Costs .

(a)                Each Owner shall be responsible for, and shall pay, in accordance with this Section 3.05 , its pro rata share (based on its Ownership Interest) of all Costs (up to the Construction Costs Cap) actually incurred by or on behalf of the Operator in the performance of the Construction Project pursuant to Article III or otherwise incurred by or on behalf of PacifiCorp in the construction of the Transmission Facilities (collectively, the “ Construction Costs ”).

(b)               The Operator shall promptly notify the Owners in writing if it reasonably believes that the total Construction Costs to be incurred by or on behalf of the Operator or otherwise incurred by or on behalf of PacifiCorp in the construction of the Transmission Facilities will exceed the greater of (i) five percent (5%) of the aggregate amount of Construction Costs provided for in the budget attached hereto as Exhibit E (the “ Construction Budget ”), as the same may be revised from time to time pursuant to this Section 3.05(b ), and (ii) One Million Four Hundred Thousand Dollars ($1,400,000) (the “ Construction Costs Cap ”).  Thereafter, the Operator shall submit to the Owners for their approval, such approval not to be unreasonably withheld or delayed, a revised Construction Budget which shows the aggregate amount of Construction Costs that the Operator reasonably believes will be incurred by or on behalf of the Operator to complete the Construction Project in accordance with Article III or otherwise incurred by or on behalf of PacifiCorp in the construction of the Transmission Facilities.  The notice and approval rights set forth above in this Section 3.05(b) shall apply to the revised Construction Budget as well.  Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Operator be obligated to incur Construction Costs in excess of the Construction Costs Cap.

(c)                The Operator shall provide the Owners with invoices showing each Owner’s pro rata share (based on its Ownership Interest) of the Construction Costs, and the Non-Operating Owner shall pay the Operator its pro rata share (based on its Ownership Interests) of the Construction Costs, in accordance with Section 5.08 and Section 5.09 .

ARTICLE IV
OWNERSHIP INTERESTS

4.01     Ownership Interests .

(a)                Pursuant to the JPSA, as of the Closing Date, each Owner owns an undivided ownership interest, equal to its Ownership Interest, in the Transmission Facilities.

(b)               The Owners agree that they shall enter into such additional documentation as shall reasonably be required to document any change in the Ownership Interests of the Owners contemplated hereby, provided that in no event shall an Owner be responsible for paying any amount to the other Owner as a result of any change in any Ownership

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Interest or the Transmission Facilities except as expressly provided for in this Agreement or as otherwise agreed to by the Parties in writing.

4.02          Owner’s Capacity Share .  Each of the Owners shall be entitled to a pro rata share (based on its Ownership Interest) of the bi-directional transmission capacity of the Transmission Facilities (“ Capacity Share ”).  Subject to Section 6.02 , each Owner’s Capacity Share entitles the Owner to provide and schedule transmission service over the Transmission Facilities to the extent of the Owner’s Capacity Share and to schedule and transmit an amount of energy commensurate with the Owner’s Capacity Share over the Transmission Facilities on its own behalf or on behalf of the Owner’s transmission customers; provided , however , that at no time shall an Owner be entitled to post, sell, schedule or transmit more than its Capacity Share of transmission capacity (and a commensurate amount of energy) on the Transmission Facilities, unless otherwise mutually agreed to in writing by the Owners.  Any use of the Transmission Facilities, other than as provided for in this Section 4.02 , shall be subject to the prior written approval of both Owners.

4.03          Qualified Owner .  Each Owner shall take all actions required to continue to be a Qualified Owner during the Term.  If at any time during the Term an Owner ceases to be a Qualified Owner, then such Owner shall immediately provide notice thereof to the other Owner and take all actions required to resume being a Qualified Owner.

4.04          No Right to Use .  For the avoidance of doubt, the provisions of this Agreement shall not confer upon either Owner the right to use or transmit energy over any transmission facilities owned by the other Owner (other than the Transmission Facilities as provided for herein).

4.05          Payments .  All payments required to be made by or on behalf of the Owners under the terms of this Agreement, including payments to the Operator of the Monthly Transmission Facilities O&M Charge, the Monthly Common Facilities Charge and Other Costs, shall be made to the account or accounts designated by the Owner or Operator to which the payment is owed, by wire transfer (in immediately available funds in the lawful currency of the United States).

4.06          Waiver of Partition Rights .  The Owners shall own their undivided Ownership Interests in the Transmission Facilities as tenants-in common.  The Owners acknowledge that any exercise of the remedy of partition (whether at law or in equity) of the Transmission Facilities or any portion thereof would be impracticable in view of the purposes and requirements of this Agreement, would violate the spirit and intent of this Agreement, and would defeat the Owners’ intentions and reasonable expectations as well as the consideration upon which each Owner entered into this Agreement.  Accordingly, each Owner agrees that during the Term it (a) will not, directly or indirectly, commence, maintain, support or join in any action or proceedings of any kind to partition the Transmission Facilities or any portion thereof, and (b) waives, after consultation with its qualified legal counsel, any and all rights that it may have under this Agreement or applicable Governmental Requirements (whether at law or in equity) or otherwise to commence, maintain, support or join in any such action or proceeding.  Each Owner acknowledges that the other Owner has entered into and will perform the terms of this Agreement in reliance upon the other Owner’s agreement and adherence to the terms of this Section 4.06 , and would not have entered into this Agreement but for such reliance; and that it

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would be unjust and inequitable for any Owner to violate or to seek relief from any provision of this Section 4.06 .

 

ARTICLE V
OPERATOR

5.01          Appointment of Operator .

(a)                The Owners hereby appoint PacifiCorp, and PacifiCorp hereby accepts appointment, to serve as Operator of the Transmission Facilities and the Common Facilities for the Owners and to perform the other covenants and obligations of the Operator expressly set forth in this Agreement, in accordance with the terms and conditions of this Agreement.

(b)               Notwithstanding anything to the contrary contained in this Agreement or Governmental Requirements, the Owners agree that the Operator shall have no obligations, responsibilities or duties to the Owners other than as are expressly provided for in this Agreement.

5.02          Authority of Operator .

(a)                The Operator shall be responsible in all respects for the construction of the Jointly-Developed Transmission Facilities and the operation and maintenance of the Transmission Facilities and the Common Facilities in accordance with Article III and Articles V-X .  Without limiting the foregoing, the Operator shall supervise and perform, or cause to be supervised and performed:  (i) the construction of the Jointly-Developed Transmission Facilities in accordance with Article III and this Article V , (ii) the physical operation and maintenance of, interconnection to, design of, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of, the Transmission Facilities in accordance with this Article V and Articles VI-X , and (iii) the physical operation and maintenance of the Common Facilities in accordance with Section 6.04 .  In the performance of its obligations under this Agreement, the Operator shall have authority, subject to the other terms of this Article V and Article III and Articles VI-X , to take any or all of the actions it reasonably determines are necessary to perform its obligations under this Agreement, including to make decisions on all matters relating to and to contract for, select and purchase on behalf of the Owners all materials, equipment and services (including from third-party consultants and advisors) necessary for:  (A) the engineering, design and construction of the Jointly-Developed Transmission Facilities pursuant to Article III , (B) the physical operation and maintenance of the Transmission Facilities pursuant to Article VI ; (C) the interconnection of Interconnection Customers to the Transmission Facilities pursuant to Section 6.03 ; (D) the development, design, engineering, procurement, construction, permitting, completion, testing and commissioning of capital upgrades or improvements to the Transmission Facilities pursuant to Article VII ; (E) the development, design, engineering, procurement, construction, permitting, completion, testing and commissioning of repairs to and reconstruction of the Transmission Facilities pursuant to Article VIII ; and (F) the retirement and decommissioning of the Transmission Facilities pursuant to Article IX.

 

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(b)               The Owners and the Operator agree that title to all Jointly-Developed Transmission Facilities and capital upgrades and improvements constructed by or on behalf of the Operator pursuant to Section 6.01 shall vest with the Owners and shall be jointly owned by the Owners as tenants-in-common in accordance with their respective Ownership Interests.  Title to all capital upgrades and improvements constructed by or on behalf of the Operator pursuant to Section 7.01 shall vest with and be owned by the Owners in accordance with Section 7.01 .

(c)                The Operator will exercise or enforce all of PacifiCorp’s benefits, rights and remedies under the Transmission Facilities Contracts for the benefit of the Owners pro rata (in accordance with their respective Ownership Interests) and without adverse distinction between the Owners.  In furtherance and not in limitation of the immediately preceding sentence, the Operator agrees to transfer, assign, distribute, pay over or otherwise make available to the Non-Operating Owner, the Non-Operating Owner’s pro rata share (based on its Ownership Interest) in any payments or proceeds obtained pursuant to any Transmission Facilities Contract.  Notwithstanding anything to the contrary contained in this Agreement, the Owners agree that only the Operator shall be entitled to exercise or enforce PacifiCorp’ benefits, rights and remedies under the Transmission Facilities Contracts.

5.03          Standard of Work .  The Operator shall perform all of its obligations under this Agreement as an independent contractor and in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.

5.04          Delegation of Responsibilities .  The Operator may, in its sole and absolute discretion, delegate all or a portion of its obligations under this Agreement to one or more Persons (each, a “ Delegate ”).  Notwithstanding any such delegation, the Operator shall remain responsible and liable for all such delegated obligations in accordance with the terms of this Agreement.

5.05          Governmental Authorizations .

(a)                The Operator is authorized to prepare and submit to all appropriate Governmental Authorities the necessary reports, applications, plans, specifications and other documents to procure all Governmental Authorizations required to perform its obligations under this Agreement with respect to the Transmission Facilities or to comply with Governmental Requirements, provided that the Operator shall consult with the Owners prior to the submission of any such reports, application, plans, specification and other documents.  To the extent permitted by Governmental Requirements, the Operator shall use Commercially Reasonable Efforts to obtain and structure all Government Authorizations for which it applies after the Execution Date in such a way as to recognize each Owner’s applicable Ownership Interests and Capacity Share as contemplated by this Agreement.  Notwithstanding anything to the contrary in this Agreement, nothing in Section 5.05 shall obligate the Operator to prepare and submit to appropriate Governmental Authorities any reports, applications, plans, specifications and other documents to procure any Governmental Authorizations required by the Owners in connection with their ownership of an Ownership Interest in the Transmission Facilities or the recovery of any costs and expenses in connection therewith.

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(b)               To the extent that the Operator cannot obtain a Governmental Authorization pursuant to Section 5.05(a) on behalf of one or both of the Owners, each such Owner shall:  (i) be responsible for preparing and submitting to the appropriate Governmental Authority the necessary reports, applications, plans, specifications and other documents to procure such Governmental Authorization; and (ii) exercise all Commercially Reasonable Efforts to obtain such Governmental Authorization.  Unless and until the Owner or Owners are able to obtain such Governmental Authorizations, the Operator shall not perform or continue to perform any of the Construction Project if to do so would result in the Owner or Owners being in violation of applicable Governmental Requirements or Governmental Authorizations.

(c)                Each Owner shall, at its own cost: (i) reasonably cooperate and support the Operator in obtaining any Governmental Authorizations required pursuant to Section 5.05(a) ; and (ii) reasonably respond to inquiries or requests issued to it by any Governmental Authority in respect of such Governmental Authorization; provided , however , that an Owner shall not be obligated pursuant to this Section 5.05(c) to disclose Proprietary Information except to the extent that it is otherwise required to disclose such Proprietary Information:  (A) by applicable Governmental Requirements; (B) by any Governmental Authority; or (C) pursuant to the express terms of this Agreement.

5.06          Access .

(a)                The Operator shall, to the extent possible under any Rights-of-Ways, provide each Owner and its designees reasonable access to the Transmission Facilities site to permit the Owners and their designees to inspect the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities, provided that (i) the Owners and their designees do not interfere with the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities or any portion thereof or pose a safety hazard; (ii) the Owners and their designees comply with any requirements of any rights-of-ways, license, easement or other real property interest agreement applicable to the Transmission Facilities; and (iii) the Owners and their designees performing the inspection comply with the Operator’s or any other contractor’s safety and security rules, as more specifically set out in the Populus Access Easement Agreement.

 

(b)               Each Owner may, at its cost, at any time during normal business hours and with reasonable prior notice of not less than ten (10) Business Days, but not more often than once in any twelve (12) month period, inspect and audit the books and records of the Operator and any of its Affiliates and any Delegate (and the Operator shall secure such rights for the Owners from its Affiliates and any Delegate) involved in the provision of services pursuant to this Agreement (“ Other Costs Records ”), to the extent reasonably relating to the determination of the Other Costs for which the Owners are liable under this Agreement as shown on an invoice provided to the Owners pursuant to Section 5.08 within twelve (12) months prior to the date of the audit notice.  The Operator shall, and shall cause any of its relevant Affiliates and any Delegate, to keep and maintain all such Other Costs Records to the extent reasonably relating to the determination of the Other Costs for which the Owners are liable under this Agreement and make such Other Costs Records available to the Owners in accordance with the terms of this

 

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Agreement.  If any audit discloses that, during such twelve (12)-month period, an overpayment or underpayment of Other Costs has been made by the Non-Operating Owner or the amount of any Other Costs allocated to the Owners on an invoice is incorrect, then such overpayment, underpayment or incorrect amount shall be resolved pursuant to Section 5.09 .  The Owner requesting the audit shall reimburse one hundred percent (100%) of all reasonable costs and expenses (including internal costs and expenses) incurred by or on behalf of the Operator and any of its Affiliates and any Delegate in complying with the provisions of this Section 5.06(b) , provided that the Owner shall not be required to reimburse any such costs if the audit determines that the Owner has made more than Twenty-Five Thousand Dollars ($25,000) in overpayments of Other Costs or more than Twenty-Five Thousand Dollars ($25,000) in Other Costs have been incorrectly allocated to the Owner.

5.07          Insurance .

(a)        Owner Insurance .  Each of the Owners shall be responsible for obtaining and maintaining during the Term insurance covering their respective legal liabilities related to their Ownership Interest in the Transmission Facilities.  Insurance required by this Section 5.07(a) will be placed with appropriate carriers and in amounts in accordance with Good Utility Practice and any applicable Governmental Requirements.

 

(b)        Property Insurance.

 

(i)         The Operator, on behalf of the Owners and any other named insureds or loss payees, will:  (A) determine the appropriate property insurance coverages, minimum amounts, self-insured amounts, deductibles and other insurance policy terms; (B) obtain and maintain such property insurance during the Term; and (C) be solely responsible for pursuing claims and/or negotiating settlements in respect of claims under such insurance coverages.  The Operator shall be compensated for the costs of obtaining and maintaining such insurance (including any premiums, taxes, and fees, deductibles, self-insurance or non-insured costs) through the Monthly Transmission Facilities O&M Charge.

 

(ii)        Physical damage to substations and equipment therein that is included as part of the Transmission Facilities in types and amounts that are reasonable and customary for similarly situated utilities.  Coverage may be insured or self-insured, or any combination of insured and self-insured.

 

(iii)       Insurance for physical damage to the transmission line and any related equipment outside the boundaries of any substation and included as part of the Transmission Facilities shall be fully self-insured.

 

5.08          Invoices .

 

(a)                The Non-Operating Owner shall pay the Operator the Monthly Transmission Facilities O&M Charge and the Monthly Common Facilities Charge calculated in accordance with Exhibit F as compensation for the Operator’s services under this Agreement.  Each Owner shall be responsible for its pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise) of costs incurred by or on behalf of the Operator

 

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under Sections 3.05(a) , 6.01(c) , 7.01(b) , 8.01 , 8.05(b) , 9.02 and 17.03 (the “ Other Costs ”).   In the event that the Operator incurs, or reasonably expects to incur, significant Other Costs (other than Construction Costs) in excess of One Hundred Thousand Dollars ($100,000), it shall immediately notify the Owners in writing of such Other Costs.

(b)               Not later than thirty (30) days after the end of each month during the Term, the Operator will deliver to the Owners an invoice which will show the Monthly Transmission Facilities O&M Charge and Monthly Common Facilities Charge payable by the Non-Operating Owner and each Owner’s pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise) of Other Costs.  The Non-Operating Owner shall pay the Monthly Transmission Facilities O&M Charge, the Monthly Common Facilities Charge, and its pro rata share (based on its Ownership Interest, unless the Owners have agreed in writing otherwise) of Other Costs shown on the invoice no later than thirty (30) days after the date of the invoice.  Any payment past due will accrue interest, per annum, calculated in accordance with the methodology specified for interest in the FERC regulations at 18 C.F.R. § 35.19a(a)(2)(iii) (the “ FERC Methodology ”).  The failure by the Operator to timely deliver an invoice shall not relieve Idaho Power of its payment obligation in respect of the Monthly Transmission Facilities O&M Charge, Monthly Common Facilities Charge and Other Costs as shown on such invoice, or release PacifiCorp of its responsibility for its share of the Other Costs in such invoice.

5.09          Disputed Amounts .  If the Non-Operating Owner disputes any portion of any amount specified in an invoice delivered by the Operator pursuant to Section 5.08 , the Non-Operating Owner shall pay its total amount of the invoice when due, and, if actually known at the time by the Non-Operating Owner, identify the disputed amount and state that the disputed amount is being paid under protest.  Any disputed amount shall be resolved pursuant to the provisions of Article XVIII .  If it is determined pursuant to Article XVIII that an overpayment or underpayment has been made by the Non-Operating Owner or the amount of any Other Costs allocated to the Owners on an invoice is incorrect, then (i) in the case of any overpayment by the Non-Operating Owner, the Operator shall promptly return the amount of the overpayment (or credit the amount of the overpayment on the next invoice) to the Non-Operating Owner, (ii) in the case of an underpayment by the Non-Operating Owner, the Non-Operating Owner shall promptly pay the amount of the underpayment to the Operator (for the benefit of the other Owner), and (iii) in the case of an incorrect allocation of Other Costs to an Owner, the allocations of Other Costs on the next invoice shall be adjusted to correct for such incorrect allocation, in each case, together with interest for the period from the date of overpayment, underpayment or incorrect allocation until such amount has been paid or credited against a future invoice calculated in the manner prescribed for calculating interest on refunds under the FERC Methodology.

 

5.10          Assistance .  Each Owner shall cooperate with the Operator promptly, as and when reasonably requested by the Operator, to assist the Operator in the performance of its duties, responsibilities and obligations under this Agreement, including executing and delivering from time to time such additional documents, certificates or instruments, and taking such additional actions, as may be reasonably requested by the Operator.  Each Owner shall bear its own costs for providing such cooperation and assistance as requested by the Operator unless the Owners agree otherwise in writing.  Nothing in this Agreement shall preclude an Owner from exercising any rights expressly granted it under this Agreement or taking any action (or having its Affiliates

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take any action) with respect to any other transmission project, including any such project that may compete with the Transmission Facilities.

 

5.11          Remedies .

(a)        Notwithstanding any provision to the contrary contained in this Agreement, the Operator shall have no liability to the Non-Operating Owner in connection with the performance of its covenants and obligations under this Agreement, except as provided in this Section 5.11 and Section 14.01(c) .  The Non-Operating Owner agrees that it has a duty to mitigate any damages and shall use Commercially Reasonable Efforts to minimize any damages it may incur as a result of the Operator’s failure to perform or breach of any of its covenants or obligations under this Agreement.

(b)         The Owners and Operator acknowledge that the obligations and covenants performed by the Operator hereunder are unique and that the Non-Operating Owner will be irreparably injured should such obligations and covenants not be performed in accordance with the terms and conditions of this Agreement.  Consequently, the Non-Operating Owner will not have an adequate remedy at law if the Operator shall fail to perform its obligations and covenants hereunder.  The Non-Operating Owner shall have the right, in addition to any other remedy available under this Agreement, to specific performance of the Operator’s obligations and covenants hereunder, and the Owners and Operator agree not to take a position in any proceeding arising out of this Agreement to the effect that the Non-Operating Party has an adequate remedy at law.

ARTICLE VI
OPERATION AND MAINTENANCE; CURTAILMENT;
INTERCONNECTION WITH THIRD PARTIES
; COMMON FACILITIES

6.01          Operation and Maintenance; Capital Upgrades and Improvements .

(a)                The Operator shall supervise and perform, or cause to be supervised and performed, the physical operation and maintenance of the Transmission Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.  Subject to Section 5.04 , the Operator may utilize its employees and supervisory personnel, and any independent technical advisors, consultants, contractors and agents which it may select, as may be required to perform the Operator’s obligations under this Section 6.01 .

(b)               The Operator shall make maintenance renewals and replacements to the Transmission Facilities (i) the costs of which are recordable as an operation and maintenance expense under the FERC Uniform System of Accounts; and (ii) that (A) are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice, and/or (B) are required by applicable Governmental Requirements and Governmental Authorizations.  Such maintenance renewals and replacements to the Transmission Facilities are included in the services for which the Operator is compensated by the Monthly Transmission Facilities O&M Charge.  The Operator shall not separately invoice the Owners for the costs of such maintenance renewals and replacements to the Transmission Facilities.  Notwithstanding anything to the

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contrary contained in this Agreement, any maintenance renewals and replacements made pursuant to this Section 6.01(b) shall be Transmission Facilities for purposes of this Agreement.

(c)                The Operator shall make capital upgrades and improvements to the Transmission Facilities (i) the costs of which are recordable as capital expenditures under the FERC Uniform System of Accounts, and (ii) which (A) are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice and/or (B) are required by applicable Governmental Requirements and Governmental Authorizations.  The Operator shall consult with the Owners and receive their prior approval, such approval not to be unreasonably withheld, delayed or conditioned, with respect to any capital upgrade or improvement for which the Operator reasonably expects to incur total project costs that exceed Two Hundred Fifty Thousand Dollars ($250,000).  The Owners shall be responsible for their pro rata share (based on their Ownership Interests) of any Costs incurred by or on behalf of the Operator in making such capital upgrades or improvements.  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades and improvements made pursuant to this Section 6.01(c) shall be Transmission Facilities for purposes of this Agreement.

6.02          Curtailment .  The Operator shall notify the Owners as soon as reasonably practicable upon becoming aware of any planned or unplanned event or circumstance, including an emergency condition or a rating study to comply with applicable Governmental Requirements or Reliability Standards, which physically or otherwise reduces or may reduce the amount of transmission capacity on all or a portion of the Transmission Facilities (“ Reduction Event ”), including the aggregate amount of reduction in the transmission capacity of the Transmission Facilities to the extent known by the Operator.  In the event of a Reduction Event, the Operator shall take such actions as the Operator may reasonably deem prudent and necessary to terminate the Reduction Event and to preserve and maintain the reliability, safety, integrity and operability of the applicable Transmission Facilities and to protect the health and safety of the public.  Each of the Owners shall provide notice of each Reduction Event in accordance with its respective OATT.

6.03          Interconnection with Third Parties .  The Owners acknowledge and agree that all third-party Interconnection Customer requests for interconnection to any of the Transmission Facilities must be coordinated with the Operator and processed in a manner consistent with the Owner’s OATT to which the Interconnection Customer’s request was made (“ Interconnection Owner ”).  An Interconnection Owner in receipt of a third-party Interconnection Customer request for interconnection with the Transmission Facilities will promptly notify the Operator and thereafter the Owners and the Operator will coordinate and cooperate to process the interconnection request.  The Operator will coordinate the conduct of any studies required to determine the impact of the interconnection request on the Transmission Facilities and the Affected Systems with Affected System Operators, including the Owners, in accordance with the Interconnection Owner’s OATT.  The Operator will include the Owners and such Affected System Operators in all meetings held with Interconnection Customers as required by the Interconnection Owner’s OATT.

6.04          Common Facilities .  The Operator shall make the Common Facilities available to the Owners to support the operation of the Transmission Facilities in accordance with the terms of this Agreement and without adverse distinction between the Owners.  The Operator shall

 

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supervise and perform, or cause to be supervised and performed, the physical operation and maintenance of the Common Facilities in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations and without adverse distinction between the Owners.  Subject to Section 5.04 , the Operator may utilize its employees and supervisory personnel, and any independent technical advisors, consultants, contractors and agents which it may select, as may be required to perform the Operator’s obligations under this Section 6.04 .  The obligations performed by the Operator pursuant to this Section 6.04 are included in the services for which the Operator is compensated by the Monthly Common Facilities Charge, and the Operator shall not separately invoice the Owners and the Owners shall not be liable for any of the costs or expenses incurred by or on behalf of the Operator pursuant to this Section 6.04 .

ARTICLE VII
CAPITAL UPGRADES PROPOSED BY AN OWNER

7.01          Capital Upgrades .

(a)                At any time during the Term, an Owner (“ Electing Owner ”) may elect to make a capital upgrade or improvement to the Transmission Facilities, provided that in no event shall an Electing Owner be entitled to make a capital upgrade or improvement to the Transmission Facilities that reasonably would be expected to have a material adverse effect on the other Owner’s ownership, use or enjoyment of its Ownership Interest of the Transmission Facilities (and associated Capacity Share) as contemplated in this Agreement.  An Electing Owner shall provide the other Owner no less than sixty (60) days’ prior written notice of its election, together with reasonable details about the proposed upgrade or improvement (each, a “ Capital Upgrade Notice ”).  Within sixty (60) days of receipt of the Capital Upgrade Notice, the other Owner may notify the Electing Owner in writing that it elects to participate in the capital upgrade or improvement to the Transmission Facilities.

(i)         If the other Owner delivers notice to the Electing Owner within the sixty (60) day period that it elects to participate in the capital upgrade or improvement to the Transmission Facilities, then the Owners shall meet and agree on: (A) the final scope of the capital upgrade or improvement; (B) the allocation of increased transmission capacity, if any, associated with such capital upgrade and improvement between the Owners, including any change in the Owners’ Capacity Shares; (C) any change in each Owner’s Ownership Interest; (D) each Owner’s share of the costs of such upgrade or improvement; (E) any change in the Monthly Transmission Facilities O&M Charge; and (F) such other matters as the Owners may agree upon, all of which shall be memorialized in an amendment to this Agreement executed by the Owners, including any amendments to the Exhibits hereto (the “ Amendment ”); provided , however , that any failure of the Owners to agree on any of the matters specified in subparts (A) through (F) above shall be resolved pursuant to the provisions of Article XVIII .  Notwithstanding any provisions to the contrary in this Agreement, an Owner shall not be prohibited from making a capital upgrade or improvement to the Transmission Facilities pursuant to this Section 7.01(a) because the Owners fail to agree on any of the matters specified in subparts (A) through (F) of the immediately preceding sentence, and any such disagreement shall be resolved pursuant to Article XVIII .

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(ii)        If the other Owner elects not to participate in the capital upgrade or improvement to the Transmission Facilities (or fails to deliver a notice to the Electing Owner within the sixty (60) day period), then the Electing Owner may proceed with the capital upgrade or improvement, provided that the Electing Owner shall coordinate with the Operator on the final scope of the capital upgrade or improvement.

(b)               The Operator shall design, permit, construct, install and commission any upgrades or improvements to the Transmission Facilities provided for in Section 7.01(a)(i) in accordance with the Amendment or, if applicable, any resolution pursuant to Article XVIII , and otherwise in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations.  The Owners shall be responsible, based on the Amendment or, if applicable, any resolution pursuant to Article XVIII , for all of the Costs incurred by or on behalf of the Operator in connection with such capital upgrade or improvement to the Transmission Facilities.  Effective as of the date of successful commissioning of such capital upgrade or improvement, written notice of which the Operator shall provide to the Owners, the Owners’ Ownership Interests and Capacity Shares shall be adjusted, if at all, in accordance with the Amendment or, if applicable, any resolution pursuant to Article XVIII , and the Owners shall memorialize any revised Ownership Interests in a revised Exhibit C which shall be effective as of the date of successful commissioning of such upgrade or improvement.  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades or improvements provided for in this Section 7.01(b) shall be Transmission Facilities for purposes of this Agreement.

(c)                The Operator shall design, permit, construct, install and commission any upgrades or improvements to the Transmission Facilities provided for in Section 7.01(a)(ii) in accordance with the final scope of the capital upgrade or improvement established by the Electing Owner pursuant to Section 7.01(a)(ii) , and otherwise in accordance with Good Utility Practice and applicable Governmental Requirements and Governmental Authorizations.  The Electing Owner shall be responsible for all of the Costs incurred by or on behalf of the Operator in connection with such capital upgrade or improvement to the Transmission Facilities and title to such capital upgrades or improvement shall vest solely with the Electing Owner.  Effective as of the date of successful commissioning of such capital upgrade or improvement, written notice of which the Operator shall provide to the Owners, (i) the Owners’ Ownership Interests shall be adjusted, if at all, in accordance with Exhibit C , (ii) the Owners shall memorialize any revised Ownership Interests in a revised Exhibit C which shall be effective as of the date of successful commissioning of such upgrade or improvement, and (iii) the Operator shall operate and maintain such capital upgrade or improvement in accordance with Section 6.01(a) .  In addition, the Owners shall meet and agree on: (A) the allocation of increased transmission capacity, if any, associated with such capital upgrade and improvement between the Owners, including any change in the Owners’ Capacity Shares; (B) any change in the Monthly Transmission Facilities O&M Charge; and (C) such other matters as the Owners may agree upon, all of which shall be memorialized in an amendment to this Agreement executed by the Owners, including any amendments to the Exhibits hereto; provided , however , that any failure of the Owners to agree on any of the matters specified in subparts (A) through (C) above shall be resolved pursuant to the provisions of Article XVIII .  Notwithstanding anything to the contrary contained in this Agreement, any capital upgrades or improvements provided for in this Section 7.01(c) shall not be Transmission Facilities for purposes of this Agreement.

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(d)               Notwithstanding anything to the contrary contained herein, the provisions of this Section 7.01 shall not apply to capital upgrades or improvements made by the Operator pursuant to Section 6.01(c) which are necessary for the operation of the Transmission Facilities in accordance with Good Utility Practice or required by applicable Governmental Requirements or Governmental Authorizations, which shall be governed by the provisions of Section 6.01 .

(e)                Each Owner shall provide the Operator prompt written notice of any request pursuant to its OATT from a third-party customer to provide additional transmission capacity that will require one or more capital upgrades or improvements to the Transmission Facilities.  If capital upgrades or improvements are required in accordance with such Owner’s OATT, then such capital upgrades and improvements shall be made by the Operator in accordance with the provisions of Section 7.01(a) and Section 7.01(b) .

ARTICLE VIII
PHYSICAL DAMAGE TO TRANSMISSION FACILITIES; CONDEMNATION

8.01          Rebuilding Damaged Facilities .  If any of the Transmission Facilities are materially damaged or destroyed (the “ Damaged Facilities ”), then within thirty (30) days of the date the damage or destruction occurred, the Operator shall deliver to the Owners a written notice (the “ Damage Notice ”) of the Operator’s good faith reasonable estimate of the cost to repair or rebuild the Damaged Facilities.  If the Damage Notice indicates that the total project cost to repair or rebuild the Damaged Facilities is estimated to be Five Million Dollars ($5,000,000) or more, inclusive of insurance proceeds, then the Owners will determine whether the Damaged Facilities will be repaired or rebuilt within thirty (30) days of the date of the Damage Notice.  If the Damage Notice indicates that the total project cost to repair or rebuild the Damaged Facilities is estimated to be less than Five Million Dollars ($5,000,000), inclusive of insurance proceeds, then the Operator will determine whether the Damaged Facilities will be repaired or rebuilt and provide notice thereof to the Owners within thirty (30) days of the date of the Damage Notice.  If the Owners or the Operator determines pursuant to this Section 8.01 to repair or rebuild the Damaged Facilities, then the Owners will, upon receipt of any insurance proceeds paid in connection with such Damaged Facilities, apply such proceeds (up to its pro rata share based on its Ownership Interest) to the repair and reconstruction of the Damaged Facilities which will be carried out by the Operator, provided that the Operator shall pay pro rata to the Owners (in accordance with their Ownership Interests) any insurance proceeds received from any property insurance obtained by the Operator pursuant to Section 5.07(b) .  The Operator will be responsible for obtaining any necessary Governmental Authorizations to repair or rebuild the Damaged Facilities and determining the manner in which to repair and reconstruct the Damaged Facilities (including the equipment to be used).  Each Owner shall reasonably cooperate with and support the Operator in obtaining any such Governmental Authorizations in accordance with Section 5.05(c) .  The Operator will cause such repairs or reconstruction to be made so that the Damaged Facilities will be repaired and restored to substantially the same general condition, character and use as existed prior to such damage or destruction.  If the cost of such repairs or reconstruction exceeds the insurance proceeds required to be applied to the repair or reconstruction pursuant to this Section 8.01 , then the Owners shall pay, in accordance with their applicable Ownership Interests, the shortfall amount.

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8.02          Decision not to Rebuild .  If the Owners determine pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities (or cannot reach agreement to repair or rebuild the Damaged Facilities) or the Operator determines pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities, then, in each case, (a) each Owner shall (i) be entitled to retain any insurance proceeds received pursuant to insurance maintained by it with respect to the Damaged Facilities, (ii) receive its share of any revenues from the salvage or sale of the Damaged Facilities and (iii) pay its pro rata share (based on its Ownership Interest) of any costs of removal of parts and equipment from the Damaged Facilities, (b) the Operator shall pay pro rata to the Owners (in accordance with their Ownership Interests) any insurance proceeds received from any property insurance obtained by the Operator pursuant to Section 5.07(b) , and (c) subject to Section 8.03 , this Agreement shall terminate pursuant to Section 2.04(a) .

8.03          Purchase of Ownership Interest .  If pursuant to Section 8.01 the Owners determine not to repair or rebuild the Damaged Facilities (or cannot reach agreement to repair or rebuild the Damaged Facilities) or the Operator determines that the Damaged Facilities should not be repaired and reconstructed and, in each case, one Owner desires to repair or rebuild the Damaged Facilities (the “ Continuing Owner ”), then the Continuing Owner shall have the option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner.  In order to exercise its option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner, the Continuing Owner must give written notice thereof to the other Owner within thirty (30) days of the Owners’ or Operator’s determination pursuant to Section 8.01 not to repair or rebuild the Damaged Facilities.  The Owners shall enter into such documentation as the Continuing Owner shall reasonably request to document the purchase and sale of all of the Ownership Interest (and Capacity Share) of the other Owner in the Transmission Facilities, provided that the purchase price of the Ownership Interest (and Capacity Share) of the other Owner shall be equal to the other Owner’s pro rata share (based on its Ownership Interest) of: (a) the salvage value of the Damaged Facilities, and (b) the depreciated cost of the Transmission Facilities which are not part of the Damaged Facilities.

8.04          Cooperation .  If the Continuing Owner seeks to repair or rebuild the Transmission Facilities purchased from the other Owner pursuant to Section 8.03 , then, at the Continuing Owner’s request and expense, the other Owner and the Operator (if the Continuing Owner is not the Operator) will, for a reasonable period of time, cooperate with and use Commercially Reasonable Efforts to assist the Continuing Owner in the repair or rebuilding of the Damaged Facilities.  This Section 8.04 shall survive the expiration or termination of this Agreement.

8.05          Condemnation .  If there occurs a loss of title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities, as the result of the exercise of the right of condemnation or eminent domain by or on behalf of any Governmental Authority, then the Operator will promptly give notice thereof to the Owners, which notice shall generally describe the nature and extent of such condemnation or eminent domain proceedings (including any negotiations in connection with such proceedings).  The Operator shall, in consultation with the Owners, use Commercially Reasonable Efforts to resist the loss of title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities through condemnation or eminent domain.  If, as a result of condemnation or eminent domain, the Owners shall lose title to, or ownership of, or use and possession of, all or any portion of any of the Transmission Facilities, the Owners shall determine, by mutual agreement, whether:

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(a)                the Transmission Facilities are no longer useful for the transmission of electric power and should be retired and decommissioned, in which case the provisions of Article IX shall control;

(b)               the Transmission Facilities should be replaced or modified, in which case the Owners will, upon receipt of any awards paid in connection with such condemnation or eminent domain, apply such awards to the replacement or modification of the Transmission Facilities which will be carried out by the Operator.  The Operator will, consistent with the mutual agreement of the Owners, determine the manner in which to replace or modify the Transmission Facilities (including the equipment to be used), and will cause such replacement and modifications to be made so that the Transmission Facilities are replaced or modified in accordance with the mutual agreement of the Owners.  If the cost of replacement or modification of the Transmission Facilities exceeds the awards received by the Owners in connection with such condemnation or eminent domain, then the Owners shall pay their pro rata shares (based on their Ownership Interests) of the shortfall amount; or

(c)                if the Owners do not reach mutual agreement on one of the actions provided for in paragraphs (a) and (b) above, or on another course of action, within sixty (60) days after the date of the notice provided by the Operator to the Owners pursuant to the first sentence of this Section 8.05 , then each Owner shall receive its pro rata share (based on its Ownership Interest) of all awards received by the Owners (or their Affiliates) in connection with any such condemnation or eminent domain (less the actual cost, fees and expenses incurred by the Operator in collection thereof).

ARTICLE IX
RETIREMENT AND DECOMMISSIONING

9.01          Decision to Retire Transmission Facilities .  The Owners will determine in accordance with the terms of this Article IX when the Transmission Facilities are no longer useful for the transmission of electric power and should be retired and decommissioned.  If the Owners mutually agree to retire and decommission the Transmission Facilities, then, subject to Section 9.02 and Section 9.03 , this Agreement shall terminate pursuant to Section 2.04(b) .

9.02          Costs of Decommissioning .  Each of the Owners shall be responsible for paying its pro rata share (based on its Ownership Interest) of the aggregate amount of all costs incurred by or on behalf of the Operator to retire permanently the Transmission Facilities from service, including decommissioning, dismantling, demolishing and removal of equipment, facilities and structures, security, maintenance, disposing of debris, abandonment and all other costs incurred by or on behalf of the Operator to retire permanently the Transmission Facilities from service, net of any amounts recovered in connection with the sale of any retired equipment, facilities and structures.

9.03          Purchase of Ownership Interest .  Each Owner shall give written notice to the other Owner when it believes the Transmission Facilities should be retired and decommissioned (each, a “ Decommissioning Notice ”).  If the other Owner desires to continue the operation of the Transmission Facilities (the “ Remaining Owner ”), then the Remaining Owner shall have the option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner in the

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Transmission Facilities.  In order to exercise its option to purchase all of the Ownership Interest (and Capacity Share) of the other Owner in the Transmission Facilities, the Remaining Owner must give written notice thereof to the other Owner within ninety (90) days of receipt of the other Owner’s Decommissioning Notice.  The Owners shall enter into such documentation as the Remaining Owner shall reasonably request to document the purchase and sale of the Ownership Interest (and Capacity Share) of the other Owner, provided that the purchase price of the Ownership Interest (and Capacity Share) of the other Owner shall be equal to the other Owner’s pro rata share (based on its Ownership Interest) of the depreciated cost of the applicable Transmission Facilities.

9.04          Cooperation.   If the Remaining Owner seeks to purchase and continue the operation of the Transmission Facilities, then, at the Remaining Owner’s request and expense, the other Owner and the Operator (if the Remaining Owner is not the Operator) will, for a reasonable period of time, cooperate with and use Commercially Reasonable Efforts to assist the Remaining Owner in the continued operation of the Transmission Facilities.  This Section 9.04 shall survive the expiration or termination of this Agreement.

ARTICLE X
INTERCONNECTION

10.01      Grant of Interconnection .  Subject to the terms and conditions in this Article X , the PacifiCorp Transmission System and Transmission Facilities shall be interconnected at the Point of Interconnection.

10.02      Interconnection Operating Procedures .  Prior to the energization of the Interconnection, the Owners shall develop written operating procedures, in accordance with WECC reliability requirements, governing operation of the Interconnection by the Operator.  The Owners may, by mutual written agreement, amend and supplement the operating procedures, in accordance with WECC reliability requirements, governing operation of the Interconnection by the Operator.

10.03      Interconnection Energization .  The Owners shall energize, or cause to be energized, the Interconnection upon successful completion of acceptance testing of the Interconnection by the Operator, including installation of the Metering Equipment specified in Section 10.04 , and completion of the operating procedures specified in Section 10.02 .

10.04      Metering .  The Operator shall operate and maintain the Metering Equipment in accordance with Good Utility Practice and applicable WECC operating guides, protocols and metering guidelines.

(a)                The Operator shall test the Metering Equipment no less frequently than once every two (2) years.  The Owners shall be given reasonable advance notice of the Operator’s testing of the Metering Equipment and shall have the opportunity to observe such testing, and the Operator shall provide the Owners a copy of meter results (including any early results to the extent the Operator has access to the results) promptly upon the results being available to the Operator.  Each Owner may request additional tests of the Metering Equipment beyond those required by the first sentence of this Section 10.04(a) , provided such additional

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tests shall be conducted by the Operator at the expense of the requesting Owner, unless such additional test reveals that the Metering Equipment is found to register outside the accepted accuracy range for watts and vars of full load equals +/- 0.2%, light load equals +/-0.2%, and power factor equals +/-0.3%, in which event the expense of the additional testing will borne by the Owners equally.

(b)               If, as a result of any test, the Metering Equipment is found to be registering outside the applicable accuracy standard in effect at the time of the test, such Metering Equipment shall be restored to the accuracy standard or an accurate meter substituted by the Operator.

(c)                The Operator shall provide each Owner with a real time remote signal from the Metering Equipment pursuant to established inter-control area communications protocols.

10.05      Service Conditions .

(a)                Operation and Maintenance; Avoidance of Burdens and Control of System Disturbances .  Each Owner shall operate and maintain its Transmission System in a manner consistent with Good Utility Practice and the provisions of this Section 10.05 .  In addition, each Owner shall operate and maintain its respective Transmission System so as to minimize, in accordance with Good Utility Practice, the likelihood of a disturbance originated in either Transmission System, which might cause impairment to the service of the other Owner or of any transmission system interconnected with the Transmission System of the other Owner.  Either Owner may install and operate on its Transmission System such relays, disconnecting devices, and other equipment as it may deem appropriate for the protection of its Transmission System, provided that any such relays, disconnecting devices and other equipment on the Transmission Facilities shall be handled pursuant to Article VII .

(b)               Additional Services .  This Article X is applicable only to the physical interconnection of the Owners’ Transmission Systems at the Point of Interconnection and does not obligate either Owner to receive or provide any service.  Other services provided by one Owner to the other Owner shall be governed by such other agreements as the Owners may enter into from time to time.  Neither Owner shall be obligated to deliver reactive power for the benefit of the other Owner, and neither Owner shall be obligated to receive reactive power when to do so might introduce objectionable operating conditions on its Transmission System.

(c)                Interruption of Service .  The Owners shall use Commercially Reasonable Efforts, consistent with Good Utility Practice and any applicable Reliability Standards and Governmental Requirements, to provide a physical interconnection to be operated in continuous synchronization at the Point of Interconnection, provided that an Owner (“ Interrupting Owner ”) may temporarily interrupt or isolate the Interconnection under the following circumstances:  (i) by operation of automatic equipment installed for power system protection; (ii) after consultation with the other Owner, other than in an emergency situation where consultation is not practicable, when an Owner deems it necessary for installation, maintenance, inspection, repairs or replacements of equipment on its Transmission System; (iii) at any time that, in the sole judgment of the Interrupting Owner, such action is necessary to preserve the integrity of, or to

 

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prevent or limit any instability on, or to avoid or mitigate an Unauthorized Use on its Transmission System; (iv) where necessary to comply with documented directives from a Governmental Authority; (v) as a result of one or more events of Force Majeure; or (vi) where necessary to prevent (A) death or serious injury to any person, (B) material damage or harm to any property or (C) any material adverse effect to the security of, or damage to its Transmission System or the electric systems of others to which its Transmission System is directly connected, including the other Owner’s Transmission System.  An Interrupting Owner shall use Commercially Reasonable Efforts to provide the other Owner (1) with reasonable advance notice of any planned interruption of the Interconnection and (2) with notice of any other interruption of the Interconnection as soon as practicable after the interruption.  If synchronous operation is interrupted, the Owners shall cooperate so as to remove the cause of such interruption as soon as commercially practicable consistent with Good Utility Practice, applicable Reliability Standards and applicable Governmental Requirements.

(d)               Physical and Cyber Security .  The Operator shall cooperate with each Owner in complying with any physical and cyber security or other security requirement established by Governmental Requirement, including Reliability Standards, applicable to the Owner and the Transmission Facilities, written notice of which the Owner provides to the Operator.

10.06      Survival of Interconnection Provision .  The provisions of this Article X , together with Articles XI XII , XIV , XV , XVIII , XIX and XX (to the extent applicable to the surviving provisions of this Article X ), shall continue in full force and effect notwithstanding the expiration or termination of this Agreement, provided that in the event of expiration or termination of this Agreement, the Parties shall amend this Agreement to reflect such changes to this Agreement as shall be necessary and mutually acceptable to the Parties to conform this Agreement to the surviving provisions of this Agreement in accordance with this Section 10.06 .

ARTICLE XI
FORCE MAJEURE

 

11.01      Force Majeure Defined .  For purposes of this Agreement, “ Force Majeure ” means an event or circumstance beyond the reasonable control of and without the fault or negligence of the Owner or Operator claiming Force Majeure (“ Affected Party ”), which, despite the exercise of reasonable diligence, cannot be or be caused to be prevented, avoided or removed by such Affected Party including, to the extent satisfying the above requirements, acts of God; earthquake; abnormal weather condition; hurricane; flood; lightning; high winds; drought; peril of the sea; explosion; fire; war (declared or undeclared); military action; sabotage; riot; insurrection; civil unrest or disturbance; acts of terrorism; economic sanction or embargo; civil strike, work stoppage, slow-down, or lock-out that are of an industry or sector-wide nature and that are not directed solely or specifically at the Affected Party; the binding order of any Governmental Authority, provided that the Affected Party has in good faith reasonably contested such order; the failure to act on the part of any Governmental Authority, provided that such action has been timely requested and diligently pursued; unavailability of equipment, supplies or products, but only to the extent caused by Force Majeure; failure of equipment, provided that the equipment has been operated and maintained in accordance with Good Utility Practice; and transportation delays or accidents, but only to the extent otherwise caused by Force Majeure;

 

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provided, however, that neither insufficiency of funds, financial inability to perform nor changes in market conditions shall constitute Force Majeure.

 

11.02      Effect of Force Majeure .

(a)                If an Affected Party is rendered wholly or partly unable to perform its obligations under this Agreement or its performance is delayed because of Force Majeure, such Affected Party shall be excused from, and shall not be liable for, whatever performance it is unable to perform or delayed in performing due to the Force Majeure to the extent so affected, provided that:

(i)                 The Affected Party, as soon as reasonably practical after the commencement of the Force Majeure, gives the other Owner(s) and the Operator prompt written notice thereof, including a description of the particulars of the Force Majeure;

(ii)               The suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure; and

(iii)             The Affected Party uses Commercially Reasonable Efforts to overcome and remedy its inability to perform as soon as reasonably practical after the commencement of the Force Majeure.

(b)               Notwithstanding anything in this Article XI to the contrary, no payment obligation arising under this Agreement prior to the date of an event of Force Majeure shall be excused by such event of Force Majeure.

(c)                Whenever an Affected Party is required to commence or complete any action within a specified period and is prevented or delayed by Force Majeure from commencing or completing such action within the specified period, such period shall be extended by an amount equal to the duration of such event of Force Majeure occurring or continuing during such period.

ARTICLE XII
EVENTS OF DEFAULT

12.01      Event of Default .  Each of the following events shall constitute an event of default (“ Event of Default ”) by the defaulting Owner (a “ Defaulting Owner ”):

(a)                the failure to make, when due, any payment required pursuant to this Agreement, if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner;

(b)               any representation or warranty made by such Defaulting Owner herein is false or misleading in any material respect when made, unless (i) the fact, circumstance or condition that is the subject of such representation or warranty is made true within thirty (30) days after notice thereof from the Non-Defaulting Owner, provided that if the fact, circumstance or condition that is the subject of such representation or warranty reasonably cannot be corrected within such thirty (30) day period, then the Defaulting Owner shall have an additional period of

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time (not to exceed sixty (60) days) in which to correct the fact, circumstance or condition that is the subject of such representation or warranty, and (ii) such cure removes any adverse effect on the Non-Defaulting Owner of such fact, circumstance or condition being otherwise than as first represented, or such fact, circumstance or condition being otherwise than as first represented does not materially adversely affect the Non-Defaulting Owner;

(c)                a transfer, assignment or other disposition of its interest in this Agreement or its Ownership Interest (or Capacity Share) in the Transmission Facilities, in each case, in violation of Article XIX;

(d)               the failure to perform or breach of its covenants and obligations in Section 4.06;

(e)                the failure to be a Qualified Owner, if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner;

(f)                the failure to perform or breach of any material covenant or obligation set forth in this Agreement (other than provided for in Section 12.01(a), (b), (c), (d) or (e)), if such failure is not remedied within thirty (30) days after written notice thereof from the Non-Defaulting Owner, provided that if such failure or breach cannot reasonably be cured within thirty (30) days, then the Defaulting Owner shall have an additional period of time (not to exceed ninety (90) days) in which to cure such failure or breach so long as the Defaulting Owner commences good faith activities to cure the failure or breach during the initial 30-day cure period and continues to utilize its Commercially Reasonable Efforts to effect a cure; or

(g)               the Defaulting Party becomes Bankrupt.

12.02      Cure by Non-Defaulting Owner .  If a Defaulting Owner fails to cure an Event of Default, then the Non-Defaulting Owner may, in its sole discretion, attempt to cure the Event of Default, provided that the Defaulting Owner shall reimburse the Non-Defaulting Owner for all costs and expenses incurred by or on behalf of the Non-Defaulting Party pursuant to this Section 12.02 .

12.03      Remedies .

(a)        If an Event of Default occurs and is continuing, then the Non-Defaulting Owner shall be entitled to exercise any of it remedies at law or in equity, including recovery from the Defaulting Owner of any damages suffered as a result of the Event of Default, subject to Section 14.08 .  The Non-Defaulting Party shall use Commercially Reasonable Efforts to mitigate any damages suffered as a result of the Event of Default.

(b)        The Owners acknowledge that the obligations and covenants performed by each Owner hereunder are unique and that the Non-Defaulting Owner will be irreparably injured should such obligations and covenants not be consummated in accordance with the terms and conditions of this Agreement.  Consequently, the Non-Defaulting Owner will not have an adequate remedy at law if the other Owner shall fail to perform its obligations and covenants hereunder.  The Non-Defaulting Owner shall have the right, in addition to any other remedy available under this Agreement, to specific performance of the Defaulting Owner’s obligations

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and covenants hereunder, and the Owners agree not to take a position in any proceeding arising out of this Agreement to the effect that the Non-Defaulting Party has an adequate remedy at law.

ARTICLE XIII
REPRESENTATIONS AND WARRANTIES

13.01      Representations and Warranties of Idaho Power .  Idaho Power represents and warrants to PacifiCorp as of the Execution Date as follows:

(a)                It is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation.

(b)               It has all requisite corporate power necessary to own its assets and carry on its business as now being conducted or as proposed to be conducted under this Agreement.

(c)                It has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement, and the execution and delivery of this Agreement and the performance by it of this Agreement have been duly authorized by all necessary corporate action on its part.

(d)               The execution and delivery of this Agreement and the performance by it of this Agreement do not: (i) violate its organizational documents; (ii) violate any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default of any material agreement to which it is a party.

(e)                This Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and by principles of equity regardless of whether such principles are considered in a proceeding at law or in equity.

(f)                Except as disclosed in Schedule 13.01(f), all material Governmental Authorizations required by Governmental Requirements to have been obtained by it prior to the date hereof in connection with the due execution and delivery of, and performance by it of its obligations under, this Agreement, have been duly obtained or made and are in full force and effect.

(g)               It is a Qualified Owner.

13.02      Representations and Warranties of PacifiCorp .  PacifiCorp represents and warrants to Idaho Power as of the Execution Date as follows:

(a)                It is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation.

(b)               It has all requisite corporate power necessary to own its assets and carry on its business as now being conducted or as proposed to be conducted under this Agreement.

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(c)                It has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement, and the execution and delivery of this Agreement and the performance by it of this Agreement have been duly authorized by all necessary corporate action on its part.

(d)               The execution and delivery of this Agreement and the performance by it of this Agreement do not: (i) violate its organizational documents; (ii) violate any Governmental Requirements applicable to it; or (iii) result in a breach of or constitute a default of any material agreement to which it is a party.

(e)                This Agreement has been duly and validly executed and delivered by it and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, except as the same may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally and by principles of equity regardless of whether such principles are considered in a proceeding at law or in equity.

(f)                Except as disclosed in Schedule 13.02(f) , all material Governmental Authorizations required by Governmental Requirements to have been obtained by it prior to the date hereof in connection with the due execution and delivery of, and performance by it of its obligations under, this Agreement, have been duly obtained or made and are in full force and effect.

(g)               It is a Qualified Owner.

 ARTICLE XIV
INDEMNIFICATION

14.01      Indemnities .

(a)                Subject to the provisions of Section 14.03 and Section 14.08 , each Owner (the “ Indemnifying Party ”) shall indemnify, defend and hold harmless the other Owner (the “ Indemnified Party ”) and its Representatives, from and against any and all suits, actions, liabilities, legal proceedings, claims, demands, losses, costs and expenses of whatsoever kind or character, including reasonable attorneys’ fees and expenses (collectively, “ Claims ”) of third parties, for injury or death of persons or physical loss of or damage to property of Persons (other than the Indemnified Party and its Representatives) arising from the Indemnifying Party’s (including its Representatives’): (i) gross negligence or willful misconduct in connection with the performance of this Agreement; or (ii) failure to perform a material obligation under this Agreement.

(b)               In addition to and not in limitation of the indemnity provided in Section 14.01(a) , but subject to the provisions of Section 14.03 and Section 14.08 , each Owner, as Indemnifying Party, shall severally and not jointly, in accordance with its Ownership Interest, indemnify, defend and hold harmless the Operator, as Indemnified Party, and its Representatives from and against any and all third-party Claims for injury or death of persons or physical loss of or damage to property of Persons (other than the Indemnified Party and its Representatives), or fines or penalties levied or imposed by Governmental Authorities, in each case, arising under or in connection with this Agreement, including in connection with the performance by the

 

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Operator of its obligations under this Agreement, except for such Claims or fines arising from the Operator’s or its Representatives’: (i) gross negligence or willful misconduct in connection with the performance of this Agreement or (ii) failure to perform a material obligation under this Agreement.

(c)                Subject to the provisions of Section 14.03 and Section 14.08 , the Operator, as Indemnifying Party, shall indemnify, defend and hold harmless each Owner, as Indemnified Party, and its Representatives from and against any and all Claims for injury or death of persons or physical loss of or damage to property of Persons (including the Indemnified Party and its Representatives), or fines or penalties levied or imposed by Governmental Authorities or Losses incurred by the Indemnified Party and its Representatives, arising from the Operator’s and its Representatives’ (i) gross negligence or willful misconduct in connection with the performance of this Agreement or (ii) failure to perform a material obligation under this Agreement; provided , however , in no event shall the Operator be obligated to indemnify, defend or hold harmless an Owner and its Representatives from and against any such Claims or fines or Losses to the extent arising from such Owner’s or its Representatives’: (i) gross negligence or willful misconduct in connection with the performance of this Agreement; or (ii) failure to perform any material obligation under this Agreement.

14.02      Notice and Participation .

(a)                If an Indemnified Party intends to seek indemnification under this Article XIV with respect to any Claims, the Indemnified Party shall give the Indemnifying Party prompt written notice of such Claims upon the receipt of actual knowledge or information by the Indemnified Party of any possible Claims or of the commencement of such Claims.  The Indemnifying Party shall have no liability under this Article XIV for any Claim for which such notice is not provided, but only to the extent that the failure to give such notice materially impairs the ability of the Indemnifying Party to respond to or to defend the Claim.

(b)               The Indemnifying Party shall have the right to assume the defense of any Claim, at its sole cost and expense, with counsel designated by the Indemnifying Party and reasonably satisfactory to the Indemnified Party; provided , however , that if the defendants in any such proceeding include both the Indemnified Party and the Indemnifying Party, and the Indemnified Party shall have reasonably concluded that there may be legal defenses available to it which are in conflict with those available to the Indemnifying Party and that such conflict materially prejudices the ability of the counsel selected by the Indemnifying Party to represent both Parties, the Indemnified Party shall have the right to select separate counsel reasonably satisfactory to the Indemnifying Party, at the Indemnifying Party’s expense, to assert such legal defenses and to otherwise participate in the defense of such Claim on behalf of such Indemnified Party, and the Indemnifying Party shall be responsible for the reasonable fees and expenses of such separate counsel.

(c)                Should any Indemnified Party be entitled to indemnification under this Article XIV as a result of a Claim by a third party, and should the Indemnifying Party fail to assume the defense of such Claim within a reasonable period of time after the Indemnified Party has provided the Indemnifying Party written notice of such Claim, the Indemnified Party may, at

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the expense of the Indemnifying Party, contest or, with or without the prior consent of the Indemnifying Party, settle such Claim.

(d)               Except to the extent expressly provided herein, no Indemnified Party shall settle any Claim with respect to which it has sought or is entitled to seek indemnification pursuant to this Article XIV unless (i) it has obtained the prior written consent of the Indemnifying Party, or (ii) the Indemnifying Party has failed to assume the defense of such Claim within a reasonable period of time after the Indemnified Party has provided the Indemnifying Party written notice of such Claim.

(e)                Except to the extent expressly provided otherwise herein, no Indemnifying Party shall settle any Claim with respect to which it may be liable to provide indemnification pursuant to this Section without the prior written consent of the Indemnified Party; provided , however , that if the Indemnifying Party has reached a bona fide settlement agreement with the plaintiff(s) in any such proceeding, which settlement includes a full release of the Indemnified Party for any and all liability with respect to such Claim, and the Indemnified Party does not consent to such settlement agreement, then the dollar amount specified in the settlement agreement, plus the Indemnified Party’s reasonable legal fees and other costs related to the defense of the Claim paid or incurred prior to the date of such settlement agreement, shall act as an absolute maximum limit on the indemnification obligation of the Indemnifying Party with respect to the Claim, or portion thereof, that is the subject of such settlement agreement.

14.03      Net Amount .  Subject to the limitation in Section 14.02(e) , if applicable, in the event that an Indemnifying Party is obligated to indemnify and hold any Indemnified Party harmless under this Article XIV , the amount owing to the Indemnified Party shall be the amount of such Indemnified Party’s actual Claims, net of any insurance or other recovery actually received by the Indemnified Party.

14.04      No Release of Insurers .  The provisions of this Article XIV shall not be deemed or construed to release any insurer from its obligation to pay any insurance proceeds in accordance with the terms and conditions of valid and collectible insurance policies.

14.05      Mitigation .  Each Indemnified Party entitled to indemnification hereunder shall take use Commercially Reasonable Efforts to mitigate all Claims after becoming aware of any event which could reasonably be expected to give rise to any Claims that are indemnifiable or recoverable hereunder or in connection herewith.

14.06      Assertion of Claims .  No Claim of any kind shall be asserted against any Owner or the Operator, whether arising out of contract, tort (including negligence), strict liability, or any other cause of or form of action, unless it is filed in a court of competent jurisdiction, or a demand for arbitration is made, within the applicable statute of limitations period for such Claim.

14.07      Survival of Obligation .  The duty to indemnify under this Article XIV shall continue in full force and effect notwithstanding the expiration or termination of this Agreement, with respect to any Claim arising out of an event or condition which occurred or existed prior to such expiration or termination.

14.08      Limitation on Liability .

 

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(a)        Notwithstanding any provision in this Agreement to the contrary, neither Owner nor the Operator shall be liable under this Agreement in any action at law or in equity, whether based on contract, tort or strict liability or otherwise, for any special, incidental, indirect, exemplary, punitive or consequential damages or losses, including any loss of revenue, income, profits or investment opportunities, loss of the use of equipment, or the cost of temporary equipment or services, provided that any fines or penalties levied or imposed by Governmental Authorities shall not be excluded under this Section 14.08(a) as special, incidental, indirect, exemplary, punitive or consequential damages or losses.

(b)        Notwithstanding any provision in this Agreement to the contrary, neither Owner nor the Operator shall be liable under this Agreement if and to the extent that the Agreement Limiting Liability Among Western Interconnected Systems executed by Idaho Power on August 5, 1985 and by PacifiCorp on August 22, 1973 (the “ WIS Agreement ”) is then in effect between the Parties and expressly limits or precludes such liability.  Nothing in this Agreement shall amend or otherwise affect in any way the terms and conditions of or liability of the Parties under the WIS Agreement.

ARTICLE XV
PROPRIETARY INFORMATION

15.01      Disclosure of Proprietary Information Prohibited .  Any Proprietary Information of a Party (whether in its capacity as Owner or Operator) (the “ Transferor ”) which is disclosed to or otherwise received or obtained by the other Party (whether in its capacity as Owner or Operator) (the “ Transferee ”) incident to this Agreement shall be held in confidence and the Transferee shall not (subject to Sections 15.02 , 15.03 and 15.05 ) publish or otherwise disclose any Proprietary Information of the Transferor to any Person for any reason or purpose whatsoever, or use any Proprietary Information for any purpose other than performance under this Agreement, without the prior written approval of the Transferor, which approval may be granted or withheld by the Transferor in its sole discretion.  Without limiting the generality of the foregoing, each Transferee shall observe at a minimum the same safeguards and precautions with regard to the Transferor’s Proprietary Information which the Transferee observes with respect to its own information of the same or similar kind.

15.02      Disclosure by Representatives .  Each Transferee agrees that it will make available Proprietary Information received from a Transferor to its own representatives only on a need-to-know basis, and that all Persons to whom such Proprietary Information is made available will be made aware of the confidential nature of such Proprietary Information, and will be required to agree to hold such Proprietary Information in confidence in accordance with the terms hereof.

15.03      Permitted Disclosures .  Notwithstanding anything to the contrary contained in this Article XV :

(a)                A Transferee may provide any Proprietary Information to any Governmental Authority having jurisdiction over or asserting a right to obtain such information, provided that (i) such Governmental Authority orders that such Proprietary Information be provided, and (ii) unless prohibited from so doing by applicable Governmental Requirements, the Transferee promptly advises the Transferor of any request for such information by such

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Governmental Authority and cooperates in giving the Transferor an opportunity to present objections, requests for limitation, and/or requests for confidentiality or other restrictions on disclosure or access, to such Governmental Authority.

(b)               A Transferee may, to the extent required, disclose Proprietary Information to any Governmental Authority in connection with the application for any Governmental Authorization; provided that unless prohibited from so doing by applicable Governmental Requirements, the Transferee shall provide the Transferor prior written advance notice of such disclosure and the Proprietary Information that is to be disclosed.

(c)                A Transferee may disclose such Proprietary Information regarding the existence and terms of this Agreement as such Transferee deems necessary to enable it to comply with the Securities Exchange Act of 1934, or the rules, regulations and forms of the Securities and Exchange Commission, issued thereunder or the applicable rules of any stock exchange, or as otherwise required by applicable Governmental Requirements.

15.04      Injunctive Relief .  In the event of a breach or threatened breach of the provisions of this Article XV by any Transferee, the Transferor shall be entitled to an injunction restraining the Transferee from such breach or threatened breach.  Nothing contained herein shall be construed as prohibiting the Transferor from pursuing any other remedies available at law or equity for such breach or threatened breach of this Agreement.

15.05      Publicity .  Any public relations matters, including public announcements and press releases or similar publicity, arising out of or in connection with the terms of this Agreement or the transactions contemplated herein, shall be coordinated and agreed to between the Owners prior to said announcement or release.

15.06      Proprietary Information Defined .  For purposes of this Agreement, “ Proprietary Information ” means all information, written or oral, which has been or is disclosed by the Transferor, or by any Representative of the Transferor, or which otherwise becomes known to the Transferee, or to any Representative of such Transferee, or any other party in a confidential relationship with, the Transferee, and which (a) relates to matters such as patents, trade secrets, research and development activities, draft or final contracts or other business arrangements, books and records, budgets, cost estimates, pro forma calculations, engineering work product, environmental compliance, vendor lists, suppliers, manufacturing processes, energy consumption, pricing information, private processes, and other similar information, as they may exist from time to time, (b) relates to the existence or the terms, including pricing and other commercial terms, of this Agreement, or (c) the Transferor expressly designates in writing to be confidential, provided that “ Proprietary Information ” shall exclude information falling into any of the following categories:

(i)                 Information that, at the time of disclosure hereunder, is in the public domain, other than information that entered the public domain by breach of this Agreement by Transferee;

 

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(ii)               Information that, after disclosure hereunder, enters the public domain, other than information that enters the public domain by breach of this Agreement by Transferee;

(iii)             Information, other than that obtained from third-parties, that prior to disclosure hereunder, was already in Transferee’s possession, either without limitation on disclosure to others or subsequently becoming free of such limitation;

(iv)             Information obtained by Transferee from a third-party having an independent right to disclose the information; or

(v)               Information that is available through independent research without use of or access to the Proprietary Information.

15.07      Survival .  The provisions of this Article XV shall continue in full force and effect during the Term and for a period of two (2) years thereafter, notwithstanding the expiration or termination of this Agreement, with respect to any Proprietary Information obtained by any Transferee prior to such expiration or termination.

ARTICLE XVI
RELIABILITY

16.01   Reliability .  The Operator shall be responsible for compliance with all Reliability Standards applicable to the Owners and the Operator with respect to the Transmission Facilities.

ARTICLE XVII
TAXES

17.01      No Partnership .  Nothing in this Agreement shall be deemed to create or constitute a partnership, joint venture or association among the Owners or any of them, the sole purpose of this Agreement being limited to (a) the allocation of the Ownership Interests (and Capacity Share) in the Transmission Facilities and (b) provision for (i) the orderly and efficient construction, repair, modification, rehabilitation, operation and maintenance of the Owners’ respective separate undivided Ownership Interests in the Transmission Facilities, and (ii) the interconnection of the Owners’ respective Transmission Systems.  Each Owner agrees and covenants that it shall not take or omit to take any action or reporting position with any Governmental Authority contrary to this Section 17.01 .

17.02      761 Election .  The Owners intend that, as tenants in common and owners of undivided Ownership Interests, for United States income tax purposes the Owners shall elect in accordance with the provisions of section 761 of the Internal Revenue Code of 1986, as amended (“ Code ”), and the applicable income tax regulations thereunder (“ Regulations ”), to be excluded from all of the provisions of Subchapter K of the Code upon the first occasion in which such election may be filed under these Regulations and that, if such election is not filed, this Agreement shall constitute an election under Regulations section 1.761-2(b)(2)(ii) to be excluded from all of the provisions of Subchapter K of the Code and the applicable Regulations, beginning

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with the first year of the creation of the tenancy in common as contemplated by this Agreement and that no Owner shall object to any such election.
 

17.03      Responsibility for Taxes .  It is the intent of the Owners that so far as possible, each Owner shall separately report, promptly and timely file returns with respect to, be responsible for and pay all property, income, franchise, business, or other taxes or fees (“ Taxes ”), arising out of its Ownership Interests and the matters contemplated by this Agreement, that such Taxes shall be separately levied and assessed against each Owner severally and that each Owner shall be solely responsible for and shall pay all such Taxes so levied and assessed against it without any responsibility of the other Owner with respect thereto and without the amounts thereof being paid and apportioned between the Owners under this Agreement.  To the extent that Taxes (such as property, payroll, sales and use Taxes) may be levied or assessed against the Transmission Facilities, their operation or the Owners in such a manner as to make impossible the carrying out of the foregoing provisions of this Section 17.03 , the Operator shall report, file returns with respect to and pay such Taxes and each other Owner shall immediately reimburse the Operator for each such Owner’s Ownership Interest percentage of such Taxes.  The Operator shall not have any obligation to contest or to seek refund of such Taxes; provided , however , that the Operator may, by its personnel or counsel of its selection, pursue such administrative or court proceedings as the Operator may determine.  Each Owner shall on request pay to the Operator such Owner’s Ownership Interest percentage of the costs of such proceedings and shall share in any savings resulting from such proceedings in the same proportion.  Each Owner agrees to cooperate with the other Owner with respect to reasonable requests for information or other matters with respect to Taxes.

17.04      Indemnification .  Each Owner (the “ Tax Indemnifying Party ”) shall indemnify and hold harmless the other Owner (the “ Tax Indemnitee Party ”), on an after-tax basis, from and against any Taxes (including any interest or penalties) imposed on such Tax Indemnitee Party or the Transmission Facilities or any part thereof, to the extent such Taxes are the responsibility of the Tax Indemnifying Party pursuant to this Article XVII .

17.05      Determination of Depreciation and Other Matters .  Each Owner shall determine the basis and method it will use for purposes of depreciation and other matters where investment of the Transmission Facilities is relevant.

ARTICLE XVIII
DISPUTES

18.01      Exclusive Procedure .  Any dispute, controversy or claim arising out of or relating to this Agreement or the breach, interpretation, termination, performance or validity of this Agreement (each, a “ Dispute ”) shall be resolved pursuant to the procedures of this Article XVIII .

18.02      Dispute Notices .  If a Dispute arises between the Owners or between the Operator and one or both of the Owners, then any Party to such Dispute (each, a “ Disputing Party ”) may provide written notice thereof to the other Disputing Party or Disputing Parties, including a detailed description of the subject matter of the Dispute (the “ Dispute Notice ”).  Any Disputing Party may seek a preliminary injunction or other provisional judicial remedy if such action is necessary to prevent irreparable harm or preserve the status quo, in which case the Disputing

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Parties nonetheless will continue to pursue resolution of the Dispute pursuant to this Article XVIII .

18.03      Informal Dispute Resolution .

(a)                The Disputing Parties shall make a good faith effort to resolve the Dispute by prompt negotiations between and/or among each Disputing Party’s representative so designated in writing to the other Disputing Party or Disputing Parties (each a “ Manager ”).  If the Managers are not able to resolve the Dispute within thirty (30) days after the date of the Dispute Notice, they shall refer the matter to the designated senior officers of their respective companies (the “ Executive(s) ”), who shall have authority to settle the Dispute.  If the Executives are not able to resolve the Dispute within sixty (60) days after the date of the Dispute Notice, then the Dispute shall be resolved pursuant to Section 18.04 .

(b)               All communications and writings exchanged between and/or among the Disputing Parties in connection with these negotiations shall be confidential and shall not be used or referred to in any subsequent binding adjudicatory process between and/or among the Disputing Parties, either with respect to the current Dispute or any future Dispute between and/or among the Owners and/or the Operator.

18.04      Submission of Dispute to FERC or Approved Courts .  If a Dispute cannot be settled amicably between the Disputing Parties pursuant to Section 18.03 , then any Disputing Party may, in its sole discretion, within one (1) year after the conclusion of the time period for informal dispute resolution specified in Section 18.03 , submit such Dispute (a) to FERC or (b) to the jurisdiction of the state courts situated in Idaho or the United States District Court for the District of Idaho (the “ Approved Courts ”).  Each of Idaho Power and PacifiCorp, in its capacity as an Owner and as the Operator, consents to and accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the Approved Courts and appellate courts from any appeal thereof, and irrevocably waives any objection which it may now or hereafter have to the jurisdiction of the Approved Courts.  Each of Idaho Power and PacifiCorp, in its capacity as an Owner and as the Operator, further irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of venue of any suit, proceeding or other action brought pursuant to this Article XVIII in any of the Approved Courts, and irrevocably waives, to the fullest extent permitted by law, and agrees not to plead or claim in any such Approved Court that any suit, proceeding or other action brought therein has been brought in an inconvenient forum.

18.05      Continued Performance .  During the pendency of any Dispute, each Owner and the Operator shall continue to perform all of its respective obligations under this Agreement.

ARTICLE XIX
ASSIGNMENT

19.01      Prohibited Transfers and Assignments .  Neither PacifiCorp nor Idaho Power shall have the right to transfer, assign or otherwise dispose of, in whole or in part, its interest in this Agreement, including its rights, duties and obligations hereunder, nor to transfer, assign or

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otherwise dispose of, in whole or in part, its Ownership Interest (or Capacity Share) in the Transmission Facilities, except as permitted under this Article XIX .
 

19.02      Permitted Assignments and Transfers .  The restrictions set forth in Section 19.01 shall not restrict:

(a)                dispositions and sales by the Operator incident to renewals or replacements of the Transmission Facilities;

(b)               the right of an Owner to subject any of its Ownership Interest (and Capacity Share) to the lien of any mortgage upon all or a portion of its own physical electric utility property or to otherwise collaterally assign its rights and obligations in this Agreement to a lender or other person providing financing to the Owner;

(c)                the right of an Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of such transfer, in the case of PacifiCorp, all of its rights and obligations in this Agreement as the Operator) in connection with any sale, merger or other transfer of substantially all of such Owner’s electric transmission facilities as an operating entity; provided , however , that the effectiveness of such assignment shall be conditioned upon the assignee (i) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the assigning Owner as of the assignment date and (ii) qualifying as a Qualified Owner on the assignment date;

(d)               the right of an Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of transfer, in the case of PacifiCorp, all of its rights and obligations in this Agreement as the Operator) to an Affiliate of the Owner which owns all or substantially all of the transmission facilities of such Owner; provided , however , that the effectiveness of such assignment shall be conditioned upon the assignee (i) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the assigning Owner as of the assignment date and (ii) qualifying as a Qualified Owner on the assignment date;

(e)                the right of any Owner to transfer voluntarily all of its Ownership Interest (and Capacity Share) and all of its rights and obligations in this Agreement (including as part of such transfer, in the case of PacifiCorp, all of its rights and obligations in this Agreement as the Operator) to a third party; provided that:  (i) the other Owner, in its sole discretion, approves such transfer and approves the third-party purchaser as having demonstrated that it is financially and technically capable of performing the transferring Owner’s (and, in the case where PacifiCorp is the transferring Owner, Operator’s) obligations under this Agreement, and (ii) the other Owner is offered the right of first refusal to purchase such Ownership Interest (and Capacity Share) and all of the transferring Owner’s rights and obligations in this Agreement (including as part of such transfer, in the case where PacifiCorp is the transferring Owner, all of its rights and obligations in this Agreement as the Operator), on terms no less favorable than those offered to such proposed third-party purchaser; provided , however , that the effectiveness of such assignment shall be conditioned upon the third-party purchaser (A) agreeing in writing, in form and substance reasonably satisfactory to the other Owner, to assume all of the rights and obligations of the

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assigning Owner (including as part of such transfer, in the case of PacifiCorp, all of its rights and obligations in this Agreement as the Operator) as of the assignment date and (B) qualifying as a Qualified Owner on the assignment date; and

(f)                the right of an Owner to schedule and provide transmission service (in the amount of its Capacity Share) over the Transmission Facilities under the Owner’s OATT and to schedule and transmit an amount of energy commensurate with the Owner’s Capacity Share over the Transmission Facilities on its own behalf or on behalf of the Owner’s transmission customers; provided , however , that at no time shall an Owner be entitled to post, sell, schedule or transmit transmission service or an amount of energy over the Transmission Facilities greater than its Capacity Share, unless otherwise mutually agreed to in writing in advance by the other Owner.

ARTICLE XX
MISCELLANEOUS

20.01      Notices .

(a)        Any notice, demand, request or other communication required or permitted to be given pursuant to this Agreement shall be in writing and signed by the Owner or Operator giving such notice, demand, request or other communication and shall be hand delivered or sent by certified mail, return receipt requested, or overnight courier to the other Owner and/or Operator at the address set forth below:

If to Idaho Power:

Idaho Power Company

 

1221 West Idaho Street

 

Boise, ID 83702

 

Attn:  Manager, Grid Operations

 

Telephone:  208-388-5669

 

 

With a copy to:

Idaho Power Company

 

1221 West Idaho Street

 

Boise, ID 83702

 

Attn:  Legal Department

 

Telephone:  208-388-2300

 

 

If to PacifiCorp:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:  Director, Transmission Service

 

Telephone:  503-813-6712

 

 

 

 

 

 

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With a copy to:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:  Legal Department

 

Telephone:  503-813-5854

 

 

If to Operator:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:  Director, Transmission Service

 

Telephone:  503-813-6712

 

 

With a copy to:

PacifiCorp

 

825 NE Multnomah Street, Suite 1600

 

Portland, OR 97232

 

Attn:  Legal Department

 

Telephone:  503-813-5854

 

(b)        Each Owner and the Operator shall have the right to change the place to which any notice, demand, request or other communication shall be sent or delivered by similar notice sent in like manner to the other Owner(s) and the Operator.  The effective date of any notice, demand, request or other communication issued pursuant to this Agreement shall be when:  (i) delivered to the address of the Owner or Operator personally, by messenger, by a nationally or internationally recognized overnight delivery service or otherwise; or (ii) received or rejected by the Owner or Operator, if sent by certified mail, return receipt requested, in each case, addressed to the Owner or Operator at its address and marked to the attention of the person designated above (or to such other address or person as an Owner or Operator may designate by notice to the Owners and/or Operator effective as of the date of receipt by such Owners and/or Operator).

20.02      Entire Agreement .  This Agreement and the Exhibits attached hereto, and the other documents between the Owners referenced herein constitute the entire agreement between the Owners and the Operator and supersede all prior agreements and understandings, whether oral and written, between the Owners and the Operator with respect to the subject matter hereof.  There are no oral understandings, terms or conditions and neither Owner nor the Operator has relied upon any representation or warranty, expressed or implied, not contained in this Agreement.

20.03      Parties Bound .  This Agreement shall be binding upon each of the Owners and the Operator and their respective successors and permitted assigns.

 

 

 

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20.04      Amendments .

(a)                Except as otherwise provided in Section 20.04(c) , this Agreement may not be amended, supplemented or otherwise modified, other than pursuant to an instrument in writing executed by the Owners.

(b)               Absent agreement of both Parties to the proposed change and except as otherwise provided in Section 20.04(c) , the standard of review for changes to this Agreement proposed by a Party, or FERC acting sua sponte, shall be the “public interest” standard of review set forth in United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332 (1956) and Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348 (1956); provided that the standard of review for any modification to this Agreement requested by non-contracting third parties shall be the most stringent standard permissible under then-applicable law.

(c)                Nothing contained in this Agreement shall be construed as affecting in any way the right of either Party to unilaterally make application to FERC under Section 205 or Section 206 of the Federal Power Act for a change in the charges set forth in Exhibit F .  It is the intent of the Parties that the standard of review that FERC will apply to any such unilateral application shall be the just and reasonable standard of review rather than the “public interest” standard of review.

20.05      Waivers .  No waiver by any Owner or the Operator of any one or more defaults by any other Owner or the Operator in the performance of any of the provisions of this Agreement shall be construed as a waiver of any other default or defaults whether of a like kind or different nature.  Any delay, less than any applicable statutory period of limitations, in asserting or enforcing any rights under this Agreement shall not be deemed a waiver of such rights.  Failure of any Owner or the Operator to enforce any provisions hereof shall not be construed to waive such provision, or to affect the validity of this Agreement or any part thereof, or the right of any Owner thereafter to enforce each and every provision thereof.

20.06      Choice of Law .  This Agreement shall be governed by and construed in accordance with the laws of the State of Idaho, without giving effect to conflicts of laws principles.

20.07      Headings .  Article and Section headings used in this Agreement (including headings used in any Exhibits attached hereto) are for convenience of reference only and shall not affect the construction of this Agreement.

20.08      Relationship of Parties .  The covenants, obligations, and liabilities of the Owners are intended to be several and not joint or collective, and nothing herein contained shall ever be construed to create an association, joint venture, trust or partnership, or to impose a trust or partnership covenant, obligation or liability on or with regard to any of the Owners.  Each Owner shall be individually responsible for its own covenant, obligations and liability as herein provided.  No Owner shall be under the control of, or shall be deemed to control, the other Owner.  Neither Owner shall have a right nor power to bind the other Owner without its express written consent.

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20.09      Severability .  In the event that any provision of this Agreement or the application thereof becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision to other persons or circumstances will be interpreted so as reasonably to effect the intent of the Owners and the Operator.  The Owners and the Operator further agree to replace such illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such illegal, void or unenforceable provision.

20.10      No Third Party Beneficiaries .  Nothing express or implied in this Agreement is intended to nor shall be construed to confer upon or give to any Person (other than the Owners and the Operator) any rights or remedies under or by reason of this Agreement or any transaction contemplated herein.

20.11      Further Assurances .  Each Owner and the Operator agrees to execute and deliver from time to time such additional documents, and take such additional actions, as may be reasonably required by the other Owner or the Operator to give effect to the purposes and intent hereof.

20.12      Conflict of Interest .  Nothing in this Agreement shall prohibit any Owner or the Operator from engaging in or possessing any interest in other projects or business ventures of any nature and description, independently or with others.

20.13      Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be original, and all of which together shall constitute one agreement.  Electronic transmission of any signed original document, and retransmission of any signed electronic transmission, shall be the same as delivery of an original.  At the request of either Owner or the Operator, the other Owner or the Operator, as applicable, will confirm electronically transmitted signatures by signing an original document.

[SIGNATURE PAGE FOLLOWS]

 

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IN WITNESS WHEREOF, each of the Owners has caused its duly authorized representative to execute this Populus Joint Ownership and Operating Agreement as of the date first above written.

 

PACIFICORP:

PACIFICORP,

 

AS OWNER AND OPERATOR

 

 

 

 

 

By:  /s/ Patrick Reiten

 

Name:  Patrick Reiten

 

Title:  President

 

 

IDAHO POWER:

IDAHO POWER COMPANY,

 

AS OWNER

 

 

 

By:  /s/ Dan B. Minor

 

Name:  Dan B. Minor

 

Title:  EVP, Operations

 

 

 

                                                                             


 


 

 

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EXHIBIT A

 

Description of Transmission Facilities and Common Facilities

 

Section I.  Description of Transmission Facilities. 1

 

The Transmission Facilities includes all above ground 345kV structures, bus, breakers, capacitors, associated equipment and foundations as listed below and as shown on the one line drawing attached as Exhibit G which shows the extent of the jointly owned Transmission Facilities at the Populus Substation.  The major equipment included in the Transmission Facilities consist of sixteen 345 kV breakers, thirty-five air breaks, two line reactors, two series capacitor banks, one shunt capacitor bank and eleven coupling capacitor voltage transformers (CCVT), including all components associated with connection of the Bridger-Populus Transmission Lines (#s 1 and 2), the Populus–Borah Transmission Lines (#s 1 and 2), the Populus–Ben Lomond Transmission Lines (#s 1, 2 and 3) and the Populus–Kinport Transmission Line.

 

Transmission Line

Item

Description

Qnty

Dead End

Mono pole steel

10

Tangent

Mono pole steel

35

Dead End

Three pole steel

10

Substation

Item

Description

Qnty

345 kV breaker

362kV, 3000A, 50kA, Gas Filled, w/Pre-insertion Resistors 13

322, 327, 328, 342, 343, 346, 347, 348, 362, 363, 366, 367, 368

345 kV breaker

362kV, 2000A, 50kA, Gas Filled, for shunt reactor

2

R393, R392

345 kV breaker

362kV, 3000A, 50kA, Gas Filled, for Capacitor Bank

1

C329

345 kV switch

362kV, 3000A, Vertical Break, W/Ground Switch (Line)

8

345 kV Switch

362kV, 3000A, Vertical Break (Breaker Isolation)

20

345 kV Switch

362kV, 2000A, Vertical Break (Capacitor & Reactor)

3

 

                                               

1 For asset accounting purposes, Idaho Power may request unit of property breakdown information with greater detail than shown in this Exhibit A at the conclusion of construction.  PacifiCorp will make reasonable and timely accommodation to such a request, not to exceed the level of detail produced for its own internal asset accounting purposes.

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345 kV Switch

362kV, 3000A, Vertical Break, W/Ground Switch

4

382G, 352G, 383G, 353G

345 kV CCVT

1550KV BIL, 1800/3000:1, No Carrier Accessories

6

345 kV CCVT

1550KV BIL, 1800/3000:1, With Carrier Accessories

5

345 kV CT/VT

CT/VT Metering Units, 345kV

15

345 kV Capacitor

  Bank

362kV, 220/F275 MVar

1

345 kV Series

  Capacitor

347-262 kV, 1550 kV BIL

2

345 kV Reactors

362kV, 100MVA

2

Insulator

Station Post, 345kV

738

Insulator

Suspension, 345kV

48

Bus

Rigid and Wire Bus, Assemblies, and Connectors

1

Bus

Rigid & Wire Bus, Ass. & Connectors – 345kV Series Capacitor

2

Security

Security System, Conduit Installation

1

Communications

Power Line Carrier, With All Additional Equipment

5

Line Traps

345kV, 3000A

5

Lightning Arresters

345 kV, 212kV MCOV

24

Oil Containment

System and Foundation

1

Foundations

Concrete - Drilled Piers

5685 Yds

Steel

Structural Steel Supports

2374881 lbs.

 

 

 

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Section II. Description of Common Facilities

Description

Contract Quantity

Unit Of Measure

Fencing & Gates

 

 

Substation Fencing Furnish and Install (Including Signage)

9310

LF

Substation Gates Furnish and Install (Including Signage)

3

EA

Property Boundary Gates, Cattle Guards, etc. Furnish and Install

1

LS

Substation Fencing Furnish and Install for 345kV Series Capacitors (Including Signage)

inc. SE.1

LF

Reinforced Concrete

 

 

Concrete – Slab on Grade

1075

CY

Concrete - Pad and Pedestal

 

CY

Concrete - Control House

 

CY

Concrete - Miscellaneous (Station Service, Bollards, Security, Etc.)

 

CY

Cable Trench

 

 

Cable Trench w/covers

8332

LF

Cable Trench w/covers Drivable

1096

LF

Conduit and Power & Control Cables

 

 

Conduit, Below and Above Grade

1

LS

Power Cable

1

LS

Control Cable

1

LS

Grounding

 

 

Below Grade Grounding

92737

LF

Above Grade Grounding

22089

LF

Protection & Controls, SCADA & Communications

 

 

Control, Relay and Annunciator Panels

37

EA

Relay Communications Equipment; i.e. SEL 2030, Teltone Modem

1

LOT

Revenue Metering Panels

8

EA

RTU and Interposition Panel

1

EA

DFR (i.e. Ametek TR-2000 - 32 Channel with Ethernet Connection)

 

EA

SER (i.e. Hathaway 4100 - 256 Points)

 

EA

Yard Termination Cabinets

6

EA

Control House

 

 

Control House, 28’ x 80’

1

LS

Battery System 125 Vdc, Complete With Rack And Charger, Purchase and Installation

1

LS

Battery System 48 Vdc, Complete With Rack And Charger, Purchase and Installation

1

LS

Station Service

 

 

Install Station Service

1

LS

Install Standby Generator

1

LS

 

 

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Automatic Transfer Switch

1

LS

Install Distribution Service to Substation Boundary

1

LS

240 VAC, 50A Disconnect Switches, Three Phase System

1

LS

Fiber Optics – Installation

 

 

String / Sag /  ADSS Cable - Overhead including all hardware

0

LF

Fusion Splice / Enclosure, ADSS To OPGW, Including slack storage and hardware

inc. in SP.3

EA

ADSS U/G Cable in Place (with innerduct and conduit or in cable trench, including building entry); Furnish and Install

1900

EA

Quazite Storage Vault / Storage Only

1

EA

Patch Panel/Termination w/ Fusion Splicing, 48 Fibers

1

EA

Cable In Place in Building, including innerduct

100

LF

Fiber Node Equipment, with rack, power, and grounding

1

EA

Channel Bank and associated Equipment, with rack, power, and grounding

1

EA

 

 

 

 

 

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EXHIBIT B

 

[Intentionally omitted.]

 

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EXHIBIT C

 

Ownership Interests

 

Owner

Ownership Interest

 

 

PacifiCorp

78.2%

Idaho Power

20.8%

 

 

 

Each Owner’s percentage Ownership Interest in the Transmission Facilities shall be determined based on the average of the percentage of Transmission Line Capacity of each 345 kV transmission line or transformer that has a connection to the Transmission Facilities at the Populus Substation that such Owner owns or controls.  For purposes of this Exhibit C , “ Transmission Line Capacity ” means, in respect of each 345 kV transmission line or transformer that has a connection to the Transmission Facilities at the Populus Substation, the total amount of rated transmission capacity of such transmission line or transformer, provided that the Owners agree that (i) neither the Transmission Line Capacity nor either Owner’s Ownership Interest shall change as a result of a temporary or permanent change in the rated transmission capacity of any such transmission lines or transformers that are connected to the Transmission Facilities at the Populus Substation on or before December 31, 2010 and (ii) the Transmission Line Capacity and the Owners’ Ownership Interests shall only change, if at all, when an additional 345 kV transmission line or transformer is interconnected to the Populus Substation after December 31, 2010.

 

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EXHIBIT D

[Intentionally omitted.]

 

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EXHIBIT E

 

Construction Budget

 

$24,623,483.41

 

 

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EXHIBIT F

 

Monthly Transmission Facilities O& M Charge and
Monthly Common Facilities Charge

 

1.                  The Monthly Transmission Facilities O&M Charge each month during the Term shall be equal to the product of (1) the Installed Cost of the Transmission Facilities, (2) Idaho Power’s Ownership Interest, and (3) the O&M Expense Factor.

For purposes of this Exhibit F :

 

(i)         “ Installed Cost of the Transmission Facilities ” means the original and actual aggregate Cost of the Transmission Facilities incurred by or on behalf of PacifiCorp as of the date construction of the Transmission Facilities is completed pursuant to Article III , trued-up to final Cost after all work orders for the construction of the Transmission Facilities are closed to account; and

 

(ii)        the “ O&M Expense Factor ” means 0.1845% per month.

 

2.                  The Monthly Common Facilities Charge each month during the Term shall be equal to the product of (1) the Installed Cost of the Common Facilities, (2) Idaho Power’s Ownership Interest, and (3) the Common Facilities Factor.

For purposes of this Exhibit F :

 

(i)         “ Installed Cost of the Common Facilities ” means the original and actual aggregate Cost of the Common Facilities incurred by or on behalf of PacifiCorp as of the date construction of the Transmission Facilities is completed pursuant to Article III , trued-up to final Cost after all work orders for the construction of the Common Facilities are closed to account; and

 

(ii)        the “ Common Facilities Factor ” means 1.022% per month.

 

 

 

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EXHIBIT G

 

Point of Interconnection

 

[See Attached]

 

 

 

55


 


 

 

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EXHIBIT H

 

Milestones

 

Milestone

Milestone Date

Filing of this Agreement at FERC for approval

5 Business Days after the Execution Date

345 kV yard energized

October 1, 2010

 

 

 

  

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SCHEDULE 13.01(f)

 

Idaho Power's Outstanding Governmental Authorizations

 

1.         Acceptance of this Agreement for filing by FERC under Section 205 of the Federal Power Act.

 

 

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SCHEDULE 13.02(f)

 

PacifiCorp's Outstanding Governmental Authorizations

 

1. Acceptance of this Agreement for filing by FERC under Section 205 of the Federal Power Act.

 

 

59


 

 

 

 

Exhibit 12.1

IDACORP, Inc.

Consolidated Financial Information

 Ratio of Earnings to Fixed Charges and Supplemental Ratio of Earnings to Fixed Charges

(Thousands of Dollars)

Six Months

Ended

Twelve Months Ended

June 30,

December 31,

 

2010

2009

2008

2007

2006

2005

RATIO OF EARNINGS TO FIXED CHARGES

Earnings, as defined:

Income from continuing operations before income

 

 

 

 

 

 

taxes

 $

39,770 

 $

146,737 

 $

117,614 

 $

96,003 

 $

115,452 

 $

103,327 

Adjust for distributed income of equity investees

1,998 

13,724 

5,176 

6,064 

(9,347)

(10,370)

Fixed charges, as below

42,255 

79,461 

81,172 

72,879 

65,745 

64,379 

Total earnings, as defined

 $

84,023 

 $

239,922 

 $

203,962 

 $

174,946 

 $

171,850 

 $

157,336 

Fixed charges, as defined:

Interest charges 1

 $

41,743 

 $

78,457 

 $

80,282 

 $

71,946 

 $

64,720 

 $

62,962 

Rental interest factor

512 

1,004 

890 

933 

1,025 

1,417 

Total fixed charges, as defined

 $

42,255 

 $

79,461 

 $

81,172 

 $

72,879 

 $

65,745 

 $

64,379 

Ratio of earnings to fixed charges

1.99 x

3.02 x

2.51 x

2.40 x

2.61 x

2.44 x

SUPPLEMENTAL RATIO OF EARNINGS TO FIXED

CHARGES

Earnings:

Income from continuing operations before income

 

 

 

 

 

 

taxes

 $

39,770 

 $

146,737 

 $

117,614 

 $

96,003 

 $

115,452 

 $

103,327 

Adjust for distributed income of equity investees

1,998 

13,724 

5,176 

6,064 

(9,347)

(10,370)

Supplemental fixed charges, as below

42,835 

80,946 

82,962 

74,631 

67,521 

65,991 

Total earnings, as defined

 $

84,603 

 $

241,407 

 $

205,752 

 $

176,698 

 $

173,626 

 $

158,948 

Supplemental fixed charges, as defined:

Interest charges 1

 $

41,743 

 $

78,457 

 $

80,282 

 $

71,946 

 $

64,720 

 $

62,962 

Rental interest factor

512 

1,004 

890 

933 

1,025 

1,417 

Supplemental increment to fixed charges 2

580 

1,485 

1,790 

1,752 

1,776 

1,612 

Total supplemental fixed charges

 $

42,835 

 $

80,946 

 $

82,962 

 $

74,631 

 $

67,521 

 $

65,991 

Supplemental ratio of earnings to fixed charges

1.98 x

2.98 x

2.48 x

2.37 x

2.57 x

2.41 x

1 FIN 48 interest is not included in interest charges.

2 Explanation of increment - Interest on the guaranty of American Falls Reservoir District bonds and Milner Dam, Inc. notes which are already included in operation expenses.

 


 

 

 

 

Exhibit 12.2

Idaho Power Company

Consolidated Financial Information

 Ratio of Earnings to Fixed Charges and Supplemental Ratio of Earnings to Fixed Charges

(Thousands of Dollars)

Six Months

Ended

Twelve Months Ended

June 30,

December 31,

 

2010

2009

2008

2007

2006

2005

RATIO OF EARNINGS TO FIXED CHARGES

Earnings, as defined:

Income from continuing operations before income

 

 

 

 

 

 

taxes

 $

44,539 

 $

158,080 

 $

131,715 

 $

111,965 

 $

137,890 

 $

115,764 

Adjust for distributed income of equity investees

(2,335)

2,464 

(6,772)

(5,553)

(9,347)

(10,370)

Fixed charges, as below

41,279 

78,543 

77,568 

68,272 

60,687 

57,739 

Total earnings, as defined

 $

83,483 

 $

239,087 

 $

202,511 

 $

174,684 

 $

189,230 

 $

163,133 

Fixed charges, as defined:

Interest charges 1

 $

40,786 

 $

77,580 

 $

76,711 

 $

67,386 

 $

59,955 

 $

56,866 

Rental interest factor

493 

963 

857 

886 

732 

873 

Total fixed charges

 $

41,279 

 $

78,543 

 $

77,568 

 $

68,272 

 $

60,687 

 $

57,739 

Ratio of earnings to fixed charges

2.02 x

3.04 x

2.61 x

2.56 x

3.12 x

2.83 x

SUPPLEMENTAL RATIO OF EARNINGS TO FIXED

CHARGES

Earnings, as defined:

Income from continuing operations before income

 

 

 

 

 

 

taxes

 $

44,539 

 $

158,080 

 $

131,715 

 $

111,965 

 $

137,890 

 $

115,764 

Adjust for distributed income of equity investees

(2,335)

2,464 

(6,772)

(5,553)

(9,347)

(10,370)

Supplemental fixed charges, as below

41,859 

80,028 

79,358 

70,024 

62,463 

59,351 

Total earnings

 $

84,063 

 $

240,572 

 $

204,301 

 $

176,436 

 $

191,006 

 $

164,745 

Supplemental fixed charges:

Interest charges 1

 $

40,786 

 $

77,580 

 $

76,711 

 $

67,386 

 $

59,955 

 $

56,866 

Rental interest factor

493 

963 

857 

886 

732 

873 

Supplemental increment to fixed charges 2

580 

1,485 

1,790 

1,752 

1,776 

1,612 

Total supplemental fixed charges

 $

41,859 

 $

80,028 

 $

79,358 

 $

70,024 

 $

62,463 

 $

59,351 

Supplemental ratio of earnings to fixed charges

2.01 x

3.01 x

2.57 x

2.52 x

3.06 x

2.78 x

1 FIN 48 interest is not included in interest charges.

2 Explanation of increment - Interest on the guaranty of American Falls Reservoir District bonds and Milner Dam, Inc. notes which are already included in operation expenses.

 


 

 

 

 

 

 

 

 

 

 

Exhibit 15

 

 

 

August 5, 2010

 

IDACORP, Inc.
Idaho Power Company
Boise, Idaho

 

We have reviewed, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the unaudited interim financial information of IDACORP, Inc. and subsidiaries and Idaho Power Company and subsidiary for the periods ended June 30, 2010 and 2009, as indicated in our reports dated August 5, 2010; because we did not perform audits, we expressed no opinion on that information.

We are aware that our reports referred to above, which are included in your Quarterly Report on Form 10-Q for the quarter ended June 30, 2010, are incorporated by reference in Registration Statement Nos. 333-155498 and 333-155645 on Form S-3 and Registration Statement Nos. 333-65406, 333-125259, 333-143404, and 333-159855 on Form S-8 of IDACORP, Inc. and Registration Statement No. 333-166774 on Form S-3 and Registration Statement No. 333-66496 on Form S-8 of Idaho Power Company.

We also are aware that the aforementioned reports, pursuant to Rule 436(c) under the Securities Act of 1933, are not considered a part of the Registration Statements prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of that Act.

 

 

/s/ DELOITTE & TOUCHE LLP

 

Boise, Idaho


 

 

 

 

 

 

 

 

Exhibit 31.1

CERTIFICATION

I, J. LaMont Keen, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q, of IDACORP, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a)       Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)       Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)       Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)       Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

a)       All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b)       Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

Date:

August 5, 2010

By:

/s  / J. LaMont Keen

 

J. LaMont Keen

 

President and Chief Executive Officer

 

 

 

 

 


 

 


 

 

 

 

 

 

 

 

Exhibit 31.2

CERTIFICATION

I, Darrel T. Anderson, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q, of IDACORP, Inc.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a)       Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)       Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)       Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)       Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

a)       All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b)       Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

Date:

August 5, 2010

By:

/s /Darrel T. Anderson

 

 

 

Darrel T. Anderson

 

 

 

Executive Vice President - Administrative Services

 

 

 

and Chief Financial Officer

 

 

 

 


 

 


 

 

 

 

 

 

 

 

Exhibit 31.3

CERTIFICATION

I, J. LaMont Keen, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q, of Idaho Power Company;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a)       Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)       Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)       Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)       Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

a)       All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b)       Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

 

Date:

August 5, 2010

By:

/s/ J. LaMont Keen

 

 

 

 

J. LaMont Keen

 

 

 

 

President and Chief Executive Officer

 

 

 

 


 

 


 

 

 

 

 

 

 

 

Exhibit 31.4

CERTIFICATION

 

I, Darrel T. Anderson, certify that:

1. I have reviewed this Quarterly Report on Form 10-Q, of Idaho Power Company;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

a)       Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

b)       Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

c)       Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

d)       Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and

5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):

a)       All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and

b)       Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.

 

Date:

August 5, 2010

By:

/s/ Darrel T. Anderson

 

 

 

Darrel T. Anderson

 

 

 

Executive Vice President - Administrative Services

 

 

 

and Chief Financial Officer

 

 

 

 


 

 


 

 

 

 

 

 

 

 

Exhibit 32.1

 

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report of IDACORP, Inc. (the "Company") on Form 10-Q for the quarter ended June 30, 2010 (the "Report"), I, J. LaMont Keen, President and Chief Executive Officer of the Company, certify that:

 

(1)               The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and

(2)               The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/ J. LaMont Keen

J. LaMont Keen

President and Chief Executive Officer

August 5, 2010

 

 

 

 


 

 

 

 

 

 

 

 

Exhibit 32.2

 

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report of IDACORP, Inc. (the "Company") on Form 10-Q for the quarter ended June 30, 2010 (the "Report"), I, Darrel T. Anderson, Executive Vice President - Administrative Services and Chief Financial Officer of the Company, certify that:

 

(1)               The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and

(2)               The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

/s/ Darrel T. Anderson

Darrel T. Anderson

Executive Vice President - Administrative Services

and Chief Financial Officer

August 5, 2010

 

 

 


 

 

 

 

 

 

 

 

Exhibit 32.3

 

 

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report of Idaho Power Company (the "Company") on Form 10-Q for the quarter ended June 30, 2010 (the "Report"), I, J. LaMont Keen, President and Chief Executive Officer of the Company, certify that:

 

(1)               The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and

 

(2)               The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

/s/ J. LaMont Keen

J. LaMont Keen

President and Chief Executive Officer

August 5, 2010

 

 


 

 

 

 

 

 

 

 

Exhibit 32.4

 

 

CERTIFICATION PURSUANT TO
18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002

 

In connection with the Quarterly Report of Idaho Power Company (the "Company") on Form 10-Q for the quarter ended June 30, 2010 (the "Report"), I, Darrel T. Anderson, Executive Vice President - Administrative Services and Chief Financial Officer of the Company, certify that:

 

(1)               The Report fully complies with the requirements of Section 13(a) of the Securities Exchange Act of 1934; and

 

(2)               The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

/s /Darrel T. Anderson

Darrel T. Anderson

Executive Vice President - Administrative Services

and Chief Financial Officer

August 5, 2010

 


 

 

 

 

 

 

 

 

Exhibit 99

IDACORP

 

August 5, 2010

 

 

IDACORP, Inc. Announces Second Quarter 2010 Results

Annual Earnings Guidance Remains Unchanged

 

BOISE—IDACORP, Inc. (NYSE:IDA) reported second quarter 2010 net income attributable to IDACORP, Inc. of $39.2 million or $0.82 per diluted share compared to $27.5 million or $0.58 per diluted share in the second quarter of 2009.

 

Year-to-date, IDACORP recorded net income attributable to IDACORP, Inc. of $55.3 million or $1.15 per diluted share compared to $46.4 million or $0.99 per diluted share for the first six months of 2009.  The IDACORP full year 2010 earnings guidance remains in the range of $2.65 to $2.80 per diluted share.

 

Idaho Power Company, IDACORP’s principal subsidiary, reported second quarter net income of $38.8 million compared to $26.3 million in the second quarter of 2009, and net income of $57.0 million year-to-date 2010 compared to net income of $45.6 million for the same period in 2009.

 

“Our second quarter results benefited from $25 million of net tax benefits relating to a tax accounting method change for repairs deductions,” said IDACORP, Inc. and Idaho Power Company President and CEO J. LaMont Keen.  “We expected some level of earnings support from either the additional deferred investment tax credit amortization or new tax initiatives and now that we have completed our tax analysis, we are able to move forward with the new repairs tax method this quarter.  The positive impacts on our second quarter earnings from the method change allow the restoration of the additional amortization of investment tax credits recorded in the first quarter.  This is beneficial for customers and shareowners as those amounts remain available to benefit future periods.

 

“Second quarter sales volumes decreased in all customer classes due to mild temperatures and greater precipitation in the second quarter of this year compared to the same period last year which negatively impacted earnings from operations.  Irrigation sales this quarter were notably lower than last year’s second quarter,” added Keen.

 

 

 

 

 

 

 

 

 

 

 

Page 1 of 5

 


 


 

Performance Summary

 

A summary of net income attributable to IDACORP, Inc. and earnings per diluted share for the three and six months ended June 30, 2010 and 2009 is as follows (in thousands except per share amounts):

 

Three months ended

Six months ended

 

June 30,

June 30,

 

2010

2009

2010

2009

Net income attributable to IDACORP, Inc.

$

39,209

$

27,475

$

55,272

$

46,359

Average outstanding shares – diluted

 

48,048

 

46,977

 

47,966

 

46,927

Earnings per diluted share

$

0.82

$

0.58

$

1.15

$

0.99

 

The following table presents a reconciliation of net income attributable to IDACORP, Inc. for the period of three and six months ended June 30, 2009 to June 30, 2010 (items are in millions and are before tax unless otherwise noted):

 

Three months

Six months

 

ended

ended

Net income attributable to IDACORP, Inc. - June 30, 2009

$

27.5 

 

 

$

46.4 

Change in Idaho Power net income before taxes:

 

 

 

 

 

 

 

 

 

Rate and other regulatory changes, including power

 

 

 

 

 

 

 

 

 

 

cost and fixed cost adjustment mechanisms

$

(0.2)

 

 

$

8.8 

 

 

 

Reduced sales volumes

 

(5.6)

 

 

 

(12.4)

 

 

 

Oregon 2007 excess power cost deferral

 

 

 

 

 

 

 

 

 

 

recorded in 2009

 

(6.4)

 

 

 

(6.4)

 

 

 

Increased depreciation expense

 

(1.9)

 

 

 

(4.5)

 

 

 

Decreased life insurance gains

 

(0.5)

 

 

 

(3.8)

 

 

 

Change in earnings at Bridger Coal Company

 

2.6 

 

 

 

(0.3)

 

 

 

Other

 

2.0 

 

 

 

 

 

Additional accumulated deferred investment tax

 

 

 

 

 

 

 

 

 

credit (ADITC) amortization

 

(4.5)

 

 

 

 

 

Decrease in income tax expense excluding additional

 

 

 

 

 

 

 

 

 

ADITC amortization

 

27.0 

 

 

 

30.0 

 

 

Total increase in Idaho Power net income

 

 

 

12.5 

 

 

 

11.4 

Other net decreases, net of tax

 

 

 

(0.8)

 

 

 

(2.5)

 

Net income attributable to IDACORP, Inc. - June 30, 2010

$

39.2 

 

 

$

55.3 

 

 

•     A decrease in the estimated annual effective tax rate, primarily resulting from a tax accounting method change for repair-related expenditures on utility assets for the 2009 tax year, significantly impacted IDACORP’s and Idaho Power’s results for the second quarter of 2010.  For the quarter ended June 30, 2010, Idaho Power recorded an estimated net tax benefit of $25.2 million related to the cumulative effect of the method change (tax years 1999 through 2009) and has included an annual deduction estimate in its 2010 income tax provision, which resulted in a $3.6 million net tax benefit.  Idaho Power also increased its current liability for uncertain tax positions by $10.9 million.

      Based on its current estimates, Idaho Power believes its return on equity in the Idaho retail jurisdiction will exceed 9.5 percent on year-end equity and does not expect the need to amortize additional ADITC for 2010 as allowed under a provision of the 2009 settlement agreement with the Idaho Public Utilities Commission.  The agreement allows an additional amortization of up to $25 million of ADITC only if Idaho Power’s actual rate of return on year-end equity is below 9.5 percent.  As a

 

Page 2 of 5

 


 


 

 

result, Idaho Power reversed the $4.5 million of ADITC amortization recorded in the first quarter of 2010.  The reversal of ADITC in the second quarter of 2010 enables Idaho Power to carry over the credit to future periods, making them available to benefit customers or shareholders in the future.

•         Idaho Power’s operating income decreased $13 million for the quarter and $14 million for the year-to-date compared to the same periods of 2009, primarily due to reduced sales volumes.  Sales volumes were down four percent for the quarter and five percent year-to-date due to mild, wet weather, economic factors, and energy conservation.  Mild weather reduced electricity demand for heating and cooling, and wet weather decreased electricity demand for the operation of irrigation equipment, decreasing sales to irrigation customers 15 percent for the quarter and year-to-date.  Economic conditions in Idaho Power’s service area remained weak and Idaho Power attributes a portion of the reduced sales volumes to these conditions.  While there are some indicators of improvement, overall economic conditions in the service area have not recovered from the recession.  For instance, unemployment rates are still high relative to historic unemployment levels and customer growth was modest during the second quarter of 2010.  Volume decreases were partially offset by the fixed cost adjustment mechanism and lower power supply costs.

•         Idaho Power’s operating income also decreased due to a $6.4 million Oregon excess power cost recovery recorded in 2009 that did not recur in 2010.  Depreciation expense increased primarily due to the conversion to Advanced Metering Infrastructure (AMI).  Idaho Power has accelerated depreciation expense for non-AMI meters and is collecting an offsetting amount in revenues.

•         Other income was impacted by lower life insurance benefits as gains recorded in 2009 did not recur in 2010.  Earnings at Bridger Coal Company increased $3 million for the quarter and remained nearly the same year-to-date due to a change in coal pricing and an increase in coal deliveries.

•         Earnings at IDACORP’s non-regulated subsidiaries and the holding company declined $0.8 million for the quarter and $2.5 million year-to-date due to the effects of intra-period tax allocations.  IDACORP estimates its consolidated group annual effective income tax rate at the holding company in accordance with interim reporting requirements.  The estimated annual rate was used in determining income tax expense for the quarter and resulted in an intra-period allocation of expense.

 

2010 Outlook

 

Annual Earnings Guidance Remains Unchanged

 

IDACORP is maintaining its earnings guidance estimate for 2010 in the range of $2.65 to $2.80 per diluted share.  The guidance incorporates benefits assumed under the settlement agreement approved by the Idaho Public Utilities Commission among Idaho Power Company, several of Idaho Power’s customers, the Idaho Public Utilities Commission Staff and others with respect to rates for 2009-2011.  It also includes the estimated tax benefits from the repairs deduction method change, but does not include any potential benefits that could result from a uniform capitalization settlement with the Internal Revenue Service.

The current outlook for key operating and financial metrics is as follows:

 

Page 3 of 5

 


 


 

 

2010 Estimates

Key Operating & Financial Metrics

Current

Previous

Idaho Power Operation & Maintenance

 

 

 

Expense (millions)

No Change

$295-$305

Idaho Power Capital

 

 

 

Expenditures (millions) (1)

No Change

$355-$365

Idaho Power Hydroelectric

 

 

 

Generation (million MWh) (2)

7.0-8.0

6.5-8.5

Non-Regulated Subsidiary Earnings

 

 

 

and Holding Company Expenses (millions) (3)

No Change

$0.0-$3.0

 

(1)    The range for capital expenditures includes amounts for the Langley Gulch power plant, the Hemingway-Bowmont transmission line, the Hemingway station and expenditures for the siting and permitting of major transmission expansions for the Boardman to Hemingway and Gateway West transmission projects.  The range does not include $47 million awarded Idaho Power from the Department of Energy through the American Recovery and Reinvestment Act of 2009.

(2)    The range of estimated hydroelectric generation has been revised to reflect actual generation through June and estimated ranges of generation for the remainder of the year.

(3)    For the six months ended June 30, 2010, non-regulated earnings and holding company expenses resulted in a net loss of $2.5 million, primarily due to the impact of intra-period tax allocation at the holding company.  IDACORP expects that combined earnings and holding company expenses will be in the range of breakeven to a positive $3.0 million by year-end.

 

More detailed financial information will be provided in IDACORP’s Quarterly Report on Form 10-Q to be filed today with the Securities and Exchange Commission and posted to the IDACORP Web site at www.idacorpinc.com .

Web Cast / Conference Call

 

IDACORP will hold an analyst conference call today at 2:30 p.m. Mountain Time (4:30 p.m. Eastern Time).  All parties interested in listening may do so through a live Web cast, or by calling (617) 847-8704 for listen-only mode.  The passcode is “Idaho.”  Slides will be included during the conference call.  To access the slide deck, register for the event just prior to the call at ( www.idacorpinc.com/financials/confcalls.cfm ).  A replay of the conference call will be available on the IDACORP Web site for a period of 12 months.

Background Information / Safe Harbor Statement

Boise, Idaho-based IDACORP, formed in 1998, is a holding company comprised of Idaho Power Company, a regulated electric utility; IDACORP Financial, a holder of affordable housing projects and other real estate investments; and Ida-West Energy, an operator of small hydroelectric generation projects that satisfy the requirements of the Public Utility Regulatory Policies Act of 1978.  To learn more about Idaho Power or IDACORP, visit www.idahopower.com or www.idacorpinc.com.

Certain statements contained in this news release, including statements with respect to future earnings, ongoing operations, and financial conditions, are forward-looking statements within the meaning of federal securities laws and are intended to qualify for the safe harbor from liability established by the Private Securities Litigation Reform Act of 1995.  Although IDACORP and Idaho Power Company believe that the expectations and assumptions reflected in these forward-looking statements are reasonable, these statements involve a number of risks and uncertainties, and actual results may differ materially from the results discussed in the statements.  Factors that could cause actual results to differ materially from the forward-looking statements include: the effect of regulatory decisions by the Idaho Public Utilities Commission, the Oregon Public Utility Commission, and the Federal Energy Regulatory Commission affecting Idaho Power’s ability to recover costs and/or earn a reasonable rate of return, including, but not limited to, the disallowance of costs that have been deferred, financings, allowed rates of return, electricity pricing and price structures, acquisition and disposal of assets and facilities, and current or prospective wholesale and retail competition; changes in and compliance with state and federal laws, policies, and regulations, including new interpretations by regulatory and oversight bodies, which include the Federal Energy Regulatory Commission, the North American Electric Reliability Corporation, the Western Electricity Coordinating Council, the Idaho Public Utilities Commission, the Oregon Public Utility Commission, and the Department of Energy of existing policies and regulations that affect the cost of compliance, investigations and audits, penalties, and costs of remediation that may or may not be recoverable through rates; changes

 

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in tax laws or related regulations or new interpretations of applicable law by the Internal Revenue Service or state and local taxing jurisdictions, and the availability and use by IDACORP or Idaho Power of any tax credits; litigation and regulatory proceedings, including those resulting from the energy situation in the western United States and the Snake River Basin water rights adjudication, and penalties, settlements, or awards that influence business and profitability; changes in and costs of compliance with laws, regulations, and policies relating to the environment, natural resources, and endangered species and the adoption of laws and regulations addressing greenhouse gas emissions, global climate change, and energy policies, particularly with respect to coal-fired generation facilities, intended to mitigate carbon dioxide, mercury, and other emissions; global climate change and regional weather variations affecting customer demand and hydroelectric generation; over-appropriation of surface and groundwater in the Snake River Basin, including proposals for use of water in the Snake River Basin for aquifer recharge, resulting in reduced generation at hydroelectric facilities; construction of power generation, transmission and distribution facilities, including an inability to obtain required governmental permits and approvals, rights-of-way and siting, and risks related to contracting, construction, and start-up; delays and cost increases in connection with the construction or modification of generating facilities and other capital projects, which could result in the disallowance of recovery of certain costs pursuant to the rate determination process; operation of power generating facilities, including performance below expected levels, breakdown or failure of equipment, forced outages, availability of electrical transmission capacity, and the availability of water, natural gas, coal, and diesel, wind conditions, and their associated delivery infrastructures; changes in operating expenses and capital expenditures, including costs and availability of materials, fuel, and commodities, and their impact on Idaho Power’s ability to meet required loads and on the wholesale energy market in the western United States; blackouts or other disruptions of Idaho Power’s transmission system or the western interconnected transmission system; population growth rates and changes in residential, commercial, and industrial growth and demographic patterns within the service area; the continuing effects of weak economies in the states of Idaho and Oregon and in the United States, including decreased demand for electricity and reduced revenue from sales of excess energy during periods of low wholesale market prices, impaired financial soundness of vendors and service providers, and elevated levels of uncollectible customer accounts; market prices and demand for energy, including structural market changes; reductions in credit ratings, which could adversely impact access to capital markets and would require the posting of additional collateral to counterparties pursuant to existing power purchase and other arrangements; increases in uncollectible customer receivables, and the effectiveness of Idaho Power’s risk management policies concerning the creditworthiness of third parties; results of financing efforts, including the ability to obtain financing or refinance existing debt when necessary or on favorable terms, which can be affected by factors such as credit ratings, volatility in the financial markets, and other economic conditions; performance of the stock market, interest rates, credit spreads, inflation, and other financial market conditions, as well as changes in government regulations, which affect, among other things, the cost of capital and the ability to access the capital markets, indebtedness obligations, the amount and timing of required contributions to pension plans, and the reported costs of providing pension and other postretirement benefits; increases in health care costs and the resulting effect on medical benefits paid for employees; increasing costs of insurance, changes in coverage terms, and the ability to obtain insurance; the occurrence of events that affect homeland security, and acts of war or terrorism; weather and other natural phenomena such as earthquakes, floods, droughts, lightning, wind, and fire which, in addition to affecting customer demand for power, could significantly affect the ability and cost to procure adequate supplies of fuel or power to serve customers, and could increase the costs to maintain generating facilities and transmission and distribution system; adoption of or changes in accounting policies, principles, or estimates; unionization, or the attempt to unionize, all or part of the companies’ workforce, and the resulting effects on production, profitability, and operations; and new accounting or Securities and Exchange Commission or New York Stock Exchange requirements, or new interpretations or application of existing requirements.  Any such forward-looking statements should be considered in light of such factors and others noted in the companies’ Annual Report on Form 10-K for the year ended December 31, 2009, Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010 and June 30, 2010, and other reports on file with the Securities and Exchange Commission.  Any forward-looking statement speaks only as of the date on which such statement is made.  New factors emerge from time to time and it is not possible for management to predict all such factors, nor can it assess the impact of any such factor on the business or the extent to which any factor, or combination of factors, may cause results to differ materially from those contained in any forward-looking statement.

Investor and Analyst Contact

Media Contact

 

 

Lawrence F. Spencer

Echo Chadwick

Director of Investor Relations

Corporate Communication

Phone:  (208) 388-2664

Phone:  (208) 388-6654

lspencer@idacorpinc.com

echadwick@idahopower.com

 

 

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