| Exhibit C. Example of a Power Purchase Agreement | = | |
| Contract No. 01PB-_____ | = | |
| _________, 2002 | = | |
| POWER PURCHASE AGREEMENT | = | |
| Executed by the | = | |
| UNITED STATES OF AMERICA, | = | |
| DEPARTMENT OF ENERGY | = | |
| acting by and through the | = | |
| BONNEVILLE POWER ADMINISTRATION | = | |
| and | = | |
| [SELLER] | = | |
| (__________ Wind Project) | = | |
| Index to Sections | = | |
| Section Page | = | |
| 1. Definitions ..................................................................................................................... 4 | = | |
| 2. Term .............................................................................................................................. 7 | = | |
| (a) Effectiveness; Basic Term ................................................................................. 7 | = | |
| (b) Survival of Terms and Conditions .................................................................... 8 | = | |
| 3. Exhibits ......................................................................................................................... 8 | = | |
| 4. Facility Description....................................................................................................... 8 | = | |
| (a) Summary Description........................................................................................ 8 | = | |
| (b) Site ..................................................................................................................... 8 | = | |
| (c) General Design and Construction of the Facility ............................................. 8 | = | |
| 5. Interconnection Facilities and Metering ...................................................................... 9 | = | |
| (a) Interconnection Facilities Agreement............................................................... 9 | = | |
| (b) Delivery Arrangements Agreement .................................................................. 9 | = | |
| (c) Other Provisions Related to Interconnection.................................................. 10 | = | |
| 6. Obligation to Sell and Purchase Energy Output........................................................ 12 | = | |
| (a) Conditional Obligation to Purchase................................................................ 12 | = | |
| (b) Sale and Purchase ........................................................................................... 12 | = | |
| (c) Point of Delivery .............................................................................................. 13 | = | |
| (d) Exception ......................................................................................................... 13 | = | |
| (e) Exclusions ........................................................................................................ 13 | = | |
| 7. Payment for Energy Output ....................................................................................... 13 | = | |
| (a) Price for Energy Output Prior to the Completion Date.................................. 13 | = | |
| (b) Price for Energy Output after the Completion Date ...................................... 13 | = | |
| 8. Billing and Payment ................................................................................................... 14 | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 2 | = | |
| (a) Billing Statement and Invoices....................................................................... 14 | = | |
| (b) Metered Billing Data....................................................................................... 14 | = | |
| (c) Payment Dates; Late Payments...................................................................... 14 | = | |
| (d) Billing Disputes ............................................................................................... 14 | = | |
| 9. Operations and Maintenance...................................................................................... 14 | = | |
| (a) Conditions Precedent to Facility Completion Date ........................................ 14 | = | |
| (b) Facility Operation and Reliability Standards ................................................ 15 | = | |
| (c) Operations Record ........................................................................................... 16 | = | |
| (d) Monthly Reports .............................................................................................. 16 | = | |
| (e) Operating Committee and Operating Procedures.......................................... 17 | = | |
| 10. Default and Termination ............................................................................................ 17 | = | |
| (a) Events of Default of Seller .............................................................................. 17 | = | |
| (b) Events of Default of BPA................................................................................. 18 | = | |
| (c) Termination for Cause..................................................................................... 19 | = | |
| (d) No Consequential Damages ............................................................................ 20 | = | |
| 11. Termination for Convenience...................................................................................... 20 | = | |
| (a) Termination by BPA for Convenience............................................................. 20 | = | |
| (b) Termination Under Section 11(a) ................................................................... 20 | = | |
| 12. Contract Administration and Notices ........................................................................ 20 | = | |
| (a) Notices.............................................................................................................. 20 | = | |
| (b) Representative for Notice................................................................................ 21 | = | |
| (c) Authority of Representatives .......................................................................... 21 | = | |
| (d) Operating Records ........................................................................................... 21 | = | |
| (e) Billing and Payment Records.......................................................................... 21 | = | |
| (f) Examination of Records................................................................................... 22 | = | |
| 13. Dispute Resolution...................................................................................................... 22 | = | |
| 14. Force Majeure.............................................................................................................. 23 | = | |
| (a) Definition of Force Majeure............................................................................. 23 | = | |
| (b) Applicability of Force Majeure ........................................................................ 24 | = | |
| (c) Limitations on Effect of Force Majeure .......................................................... 24 | = | |
| (d) Delays Attributable to BPA............................................................................. 25 | = | |
| 15. Representations and Warranties................................................................................ 25 | = | |
| (a) Seller’s Representations and Warranties ....................................................... 25 | = | |
| (b) BPA’s Representations and Warranties ......................................................... 26 | = | |
| 16. Insurance and Indemnity............................................................................................ 26 | = | |
| (a) Evidence of Insurance ..................................................................................... 26 | = | |
| (b) Limitation on Liability .................................................................................... 27 | = | |
| 17. Regulatory Jurisdiction and Compliance ................................................................... 28 | = | |
| (a) Governmental Jurisdiction and Regulatory Compliance ............................... 28 | = | |
| (b) Provision of Support ........................................................................................ 28 | = | |
| 18. Assignment and Other Transfer Restrictions ............................................................ 28 | = | |
| (a) No Assignment Without Consent.................................................................... 28 | = | |
| 19. Confidential Information ............................................................................................ 28 | = | |
| (a) Availability....................................................................................................... 28 | = | |
| (b) Designation...................................................................................................... 29 | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 3 | = | |
| (c) Obligations....................................................................................................... 29 | = | |
| (d) Conditions and Restrictions ............................................................................ 29 | = | |
| (e) Exceptions........................................................................................................ 29 | = | |
| (f) Term of Obligations......................................................................................... 30 | = | |
| 20. Miscellaneous .............................................................................................................. 30 | = | |
| (a) Waiver.............................................................................................................. 30 | = | |
| (b) Taxes ................................................................................................................ 30 | = | |
| (c) Disclaimer of Third Party Beneficiary Rights ................................................ 30 | = | |
| (d) Relationship of the Parties.............................................................................. 30 | = | |
| (e) Survival of Obligations.................................................................................... 31 | = | |
| (f) Severability...................................................................................................... 31 | = | |
| (g) Interpretation .................................................................................................. 31 | = | |
| (h) Complete Agreement; Amendments ............................................................... 31 | = | |
| (i) Binding Effect .................................................................................................. 31 | = | |
| (j) Headings .......................................................................................................... 31 | = | |
| (k) Counterparts.................................................................................................... 32 | = | |
| (l) Choice of Law................................................................................................... 32 | = | |
| (m) Equal Employment Opportunity Compliance Certification........................... 32 | = | |
| Exhibits | = | |
| Exhibit A Facility Description and Map | = | |
| Exhibit B Form of Notice | = | |
| Exhibit C Form of Invoice | = | |
| Exhibit D Termination Payment Schedule | = | |
| This POWER PURCHASE AGREEMENT (this “Agreement”) is executed by and | = | |
| between [SELLER] (“Seller”), and the UNITED STATES OF AMERICA, DEPARTMENT | = | |
| OF ENERGY, acting by and through the BONNEVILLE POWER ADMINISTRATION | = | |
| (“BPA”). Both Seller and BPA are sometimes referred to herein individually as “Party” and | = | |
| collectively as “Parties.” | = | |
| WHEREAS, BPA is authorized by Federal law, including the Pacific Northwest | = | |
| Electric Power Planning and Conservation Act (Public Law 96-501, the “Northwest Power | = | |
| Act”) and other applicable laws, to acquire sufficient capacity and energy (where “power” | = | |
| may herein refer to either or both terms) from power production facilities, including wind | = | |
| powered production facilities, to meet the electric power requirements placed on BPA by its | = | |
| regional customers. | = | |
| WHEREAS Seller desires to construct, own, and operate a wind powered electric | = | |
| generating plant to be located _________________. | = | |
| WHEREAS, Seller desires to sell to BPA [all or a portion] of the Energy Output | = | |
| generated by the Facility (as defined below), and BPA desires to buy the same from Seller. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 4 | = | |
| WHEREAS, BPA’s obligation hereunder is not, nor shall it be construed to be, a | = | |
| general obligation of the United States, nor is it intended to be or is it secured by the full | = | |
| faith and credit of the United States. | = | |
| NOW, THEREFORE, in consideration of the mutual covenants herein contained, | = | |
| the sufficiency and adequacy of which are hereby acknowledged, the Parties agree to the | = | |
| following: | = | |
| 1. Definitions | = | |
| The terms listed in this Section shall have the meanings set forth herein whenever | = | |
| the terms appear in this Agreement, whether in the singular or the plural or in the | = | |
| present or past tense. The plain meaning of terms not listed in this Section and | = | |
| otherwise used in this Agreement shall apply, unless such unlisted terms have | = | |
| meanings as commonly used in Good Utility Industry Practice, in which case the | = | |
| Good Utility Industry Practice meaning shall apply. | = | |
| (a) “Actual Average Annual Output” means the actual amount of average annual | = | |
| Energy Output generated by the Facility during any given 24-month rolling | = | |
| (b) “Availability Factor” means the number of hours the Facility was in service | = | |
| and ready during the preceeding twelve (12) month period to generate | = | |
| Energy Output in accordance with Good Utility Industry Practice, divided by | = | |
| 8,760 hours. | = | |
| (c) “BPA Wind Turbine(s)” mean each and all of those [number, manufacturer, | = | |
| and size] wind turbine generators, or a reasonably acceptable replacement or | = | |
| substitute therefor, which constitute part of the Facility and are dedicated to | = | |
| producing Energy Output for sale to BPA pursuant to this Agreement. | = | |
| (d) “Business Day” means each Monday through and including Friday during | = | |
| the term of this Agreement other than nationally recognized holidays. | = | |
| (e) “Commercial Operation” means when a particular BPA Wind Turbine in the | = | |
| Facility is ready for regular, daily operation, has been connected to the Grid, | = | |
| and is capable of producing Energy Output in accordance with Good Utility | = | |
| Industry Practice, all as certified in writing by Seller to BPA. | = | |
| (f) “Commercial Operation Date” means, with respect to a particular BPA Wind | = | |
| Turbine, the first day on which Commercial Operation occurs. | = | |
| (g) “Commission(s)” means any of the state or Federal regulatory agencies | = | |
| having jurisdiction over BPA or Seller including, but not limited to, the | = | |
| Federal Energy Regulatory Commission (“FERC”), or successor agencies. | = | |
| (h) “Completion Date” means the date when all of the BPA Wind Turbines have | = | |
| achieved Commercial Operation and the Conditions Precedent in Section 9(a) | = | |
| have been satisfied. | = | |
| (i) “Conditions Precedent” has the meaning given in Section 9(a). | = | |
| (j) “Contract Year” means any consecutive twelve (12) month period | = | |
| commencing with the Completion Date or its anniversary. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 5 | = | |
| (k) “Delivery Arrangements Agreement” means an agreement between Power | = | |
| Business Line and the Transmission System Operator that provides for the | = | |
| receipt of Energy Output at the Point of Delivery and for the transmission | = | |
| and delivery of such Energy Output to points beyond the Point of Delivery. | = | |
| (l) “Emergency” means a physical condition or situation that, in the judgment of | = | |
| the Transmission System Operator, affects or will affect the ability of the | = | |
| Grid to accept Energy Output from the Facility at the Point of Delivery. | = | |
| (m) “Energy Output” means the amount of electrical energy generated by the | = | |
| BPA Wind Turbines and delivered at the Point of Delivery. Energy Output | = | |
| shall be metered in whole kilowatt-hours (kWh) by the Metering Device(s) on | = | |
| the high side of the transformer at the Facility Substation. Energy Output | = | |
| delivered to BPA at the Point of Delivery shall be deemed to be equal to the | = | |
| energy measured by the Metering Device(s) minus energy losses of ____ | = | |
| percent between the Metering Device and the Point of Delivery. | = | |
| (n) “Energy Payment Rate” has the meaning ascribed in Section 7. | = | |
| (o) “Event of Default” means an event as defined in Section 10 that confers a | = | |
| contractual right upon the non-defaulting Party to terminate the Agreement. | = | |
| (p) “Facility” means the ________ Project, which includes all of the following, the | = | |
| purpose of which is to produce and sell electricity: Seller’s equipment, | = | |
| property, wind turbines, step-up transformer(s), circuit breakers, necessary | = | |
| electric lines to connect to the Point of Delivery, protective and associated | = | |
| equipment, improvements, and other tangible and intangible assets, | = | |
| property and access rights and contract rights reasonably necessary for the | = | |
| construction, operation, and maintenance of the electric wind generating | = | |
| facility to be located at the site specified in Section 4 that produces Energy | = | |
| Output being sold under this Agreement. | = | |
| (q) “Facility Substation” means the facilities located at the point of intersection | = | |
| of the Facility Transmission Line and BPA’s ____________ transmission line. | = | |
| (r) “Facility Transmission Line” means the transmission line connecting the | = | |
| Wind Turbines to the Point of Delivery. | = | |
| (s) “First Delivery Date” means the first date on which the Interconnection | = | |
| Facilities are energized and capable of accepting delivery of Energy Output | = | |
| at the Point of Delivery. | = | |
| (t) “GDPIPD” means the implicit price deflator for the gross domestic product as | = | |
| computed and published by the U.S. Department of Commerce. The figures | = | |
| to be used in this adjustment shall be those presented in the “Gross | = | |
| Domestic Product: First Quarter ‘Final’ Press Release” typically released in | = | |
| June of each calendar year by the United States Department of Commerce, | = | |
| Bureau of Economic Analysis. No subsequent revisions released by the | = | |
| United States Department of Commerce to those figures will be considered to | = | |
| affect or adjust the Energy Payment Rate for that particular Contract Year. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 6 | = | |
| (u) “Good Utility Industry Practice(s)” means the practices, methods, and acts | = | |
| (including, but not limited to, the practices, methods, and acts engaged in or | = | |
| approved by a significant portion of the electric utility industry) that, at a | = | |
| particular time, in the exercise of reasonable judgment in light of the facts | = | |
| known or that should reasonably have been known at the time a decision was | = | |
| made, would have been expected to accomplish the desired result in a | = | |
| manner consistent with law, regulation, codes, standards, equipment | = | |
| manufacturer’s recommendations, reliability, safety, environmental | = | |
| protection, economy, and expedition. With respect to the Facility, Good | = | |
| Utility Industry Practice(s) include, but are not limited to, taking reasonable | = | |
| steps to ensure that: | = | |
| (1) equipment, materials, resources, and supplies are available to meet | = | |
| the Facility’s needs; | = | |
| (2) sufficient operating personnel are available at all times and are | = | |
| adequately experienced, trained and licensed as necessary to operate | = | |
| the Facility properly and efficiently, and are capable of responding to | = | |
| reasonably foreseeable emergency conditions whether caused by | = | |
| events on or off the site of the Facility; | = | |
| (3) preventive, routine, and non-routine maintenance and repairs are | = | |
| performed on a basis that ensures reliable long-term and safe | = | |
| operation, and are performed by knowledgeable, trained, and | = | |
| experienced personnel utilizing proper equipment and tools; | = | |
| (4) appropriate monitoring and testing are performed to ensure | = | |
| equipment is functioning as designed; | = | |
| (5) equipment is not operated in a reckless manner, or in a manner | = | |
| unsafe to workers, the general public, or contrary to environmental | = | |
| laws or regulations or without regard to defined limitations such as | = | |
| flood conditions, safety inspection requirements, operating voltage, | = | |
| current, volt-ampere reactive (VAR) loading, frequency, rotational | = | |
| speed, polarity, synchronization, and/or control system limits; and | = | |
| (6) the equipment will function properly under both normal and | = | |
| reasonably expected Emergency conditions at the Facility. | = | |
| (v) “Grid” means the electrical transmission system that is beyond the Point of | = | |
| Delivery and controlled by the Transmission System Operator. | = | |
| (w) “Inflation Adjustment Factor” shall mean a fraction, the numerator of which | = | |
| is the GDPIPD for the first (1st) quarter of the current calendar year and the | = | |
| denominator of which is the GDPIDP for the first (1st) quarter of the | = | |
| preceding year. | = | |
| (x) “Interconnection Facilities” means all the land rights, materials, equipment, | = | |
| and facilities installed for the purpose of interconnecting the BPA Wind | = | |
| Turbines to BPA’s __________ transmission line, including, but not limited to, | = | |
| electrical interconnection, switching, metering, relaying, and communication | = | |
| and safety equipment. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 7 | = | |
| (y) “Interconnection Facilities Agreement” means the Generation | = | |
| Interconnection Agreement between Seller and Transmission System | = | |
| Operator that contains the rights and obligations of the parties with respect | = | |
| to the interconnection of the Facility to BPA’s __________ transmission line | = | |
| and the methods and procedures for the safe operation and maintenance of | = | |
| the Interconnection Facilities. | = | |
| (z) “Metering Device(s)” means the electronic kilowatt-hour meter and | = | |
| associated potential transformers and current transformers used to measure | = | |
| the Energy Output from the Facility, as described in Section 5(c)(2) and | = | |
| Exhibit A. | = | |
| (aa) “Non-Billing Dispute” means any and all disputes between the Parties other | = | |
| than Billing Disputes. | = | |
| (bb) “On-Peak Month” means any calendar months of September through and | = | |
| including February. | = | |
| (cc) “Operating Committee” means the committee comprised of one delegate each | = | |
| from BPA and Seller pursuant to Section 9(e) of this Agreement. | = | |
| (dd) “Seller’s Computer Monitoring System” means the computer-based | = | |
| monitoring system comprised of computer hardware, software, and private | = | |
| communication system extending to each BPA Wind Turbine, which system | = | |
| gathers, archives and reports turbine operating data. | = | |
| (ee) “Party” and/or “Parties” means Seller, BPA, or Seller and BPA. | = | |
| (ff) “Point of Delivery” means the electric system point at which Seller makes the | = | |
| Energy Output available to BPA. | = | |
| (gg) “Power Business Line” means BPA’s Power Business Line. | = | |
| (hh) “Seller’s Interconnection Facilities” means that portion of the | = | |
| Interconnection Facilities that are located outside of the boundary fence of | = | |
| the Facility Substation but with sufficient additional cable attached to reach | = | |
| to the Point of Delivery within the Facility Substation, as described in | = | |
| greater detail in Exhibit A. | = | |
| (ii) “Transmission System Operator” means BPA’s Transmission Business Line | = | |
| or any successor that controls and operates the Grid. | = | |
| 2. Term | = | |
| (a) Effectiveness; Basic Term | = | |
| This Agreement shall become effective upon the date signed by both Parties | = | |
| (Effective Date) and shall remain in effect for a period of _______ years from | = | |
| the Completion Date, subject to the early termination provisions set forth in | = | |
| Section 11(a) of this Agreement. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 8 | = | |
| (b) Survival of Terms and Conditions | = | |
| Applicable provisions of this Agreement shall continue in effect after | = | |
| termination to the extent necessary to provide for final billings and | = | |
| adjustments related to the period prior to termination, including repayment | = | |
| of any money due and owing to or by BPA pursuant to this Agreement. | = | |
| 3. Exhibits | = | |
| The exhibits listed in the Table of Contents are incorporated into this Agreement by | = | |
| reference. | = | |
| 4. Facility Description | = | |
| (a) Summary Description | = | |
| Seller shall construct, operate, and maintain the Facility. Exhibit A provides | = | |
| a complete description of the Facility, including identification of the BPA | = | |
| Wind Turbines and other equipment and components that comprise the | = | |
| Facility. | = | |
| (b) Site | = | |
| The Facility shall be located at the area generally described as: | = | |
| Facility Name: _________ Wind Project | = | |
| Location: Sections ___, Township ___, Range ___ of the ___ Principal | = | |
| Meridian, ____________, with a portion of Seller’s | = | |
| Interconnection Facilities also located ___________. | = | |
| County/State: _______________________________. | = | |
| A scaled map that identifies the location of the Facility, the BPA Wind | = | |
| Turbines, the Interconnection Facilities, and significant ancillary facilities, | = | |
| including the facilities located at Point of Delivery, is included in Exhibit A. | = | |
| (c) General Design and Construction of the Facility | = | |
| Seller shall construct the Facility in a workmanlike, professional manner | = | |
| according to Good Utility Industry Practice(s). The Facility shall be: | = | |
| (1) capable of supplying Energy Output in compliance with the | = | |
| requirements of the Interconnection Facilities Agreement; | = | |
| (2) capable of operating at power levels as specified in the | = | |
| Interconnection Facilities Agreement; and | = | |
| (3) equipped with protective devices and generator control systems | = | |
| designed and operating in accordance with the Interconnection | = | |
| Facilities Agreement and Good Utility Industry Practice(s). | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 9 | = | |
| 5. Interconnection Facilities and Metering | = | |
| (a) Interconnection Facilities Agreement | = | |
| Seller shall negotiate in good faith and enter into an Interconnection | = | |
| Facilities Agreement that is reasonably acceptable to Power Business Line | = | |
| for the purposes and in accordance with the schedules set forth in this | = | |
| Section 5(a). Power Business Line shall diligently cooperate with Seller in | = | |
| these negotiations. | = | |
| (1) The Interconnection Facilities Agreement shall address and describe | = | |
| (i) the switching, metering, relaying, communications and safety | = | |
| equipment that will constitute the Interconnection Facilities, (ii) the | = | |
| processes, procedures for, and timing of the procurement, | = | |
| construction, testing and placement into operation of the | = | |
| Interconnection Facilities and their connection to the Point of | = | |
| Delivery, (iii) the billing and payment schedules for the construction, | = | |
| operation and maintenance of the Interconnection Facilities, (iv) the | = | |
| operating procedures and requirements of the Interconnection | = | |
| Facilities, including the requirements for the BPA Wind Turbines to | = | |
| be capable of immediate disconnection from the Point of Delivery in | = | |
| accordance with Good Utility Industry Practice(s) or in the event of | = | |
| Emergency, and (v) the terms, conditions and other requirements | = | |
| relating to the construction, operation and maintenance of the | = | |
| Interconnection Facilities. As between BPA and Seller, all expenses | = | |
| associated with the procurement, construction, installation and | = | |
| operation of the Interconnection Facilities shall be paid by Seller in | = | |
| accordance with the Interconnection Facilities Agreement. | = | |
| (2) It is an objective of this Agreement that the First Delivery Date occur | = | |
| no later than _________, provided that such date shall be extended | = | |
| day-for-day by any Force Majeure or any delay caused by Power | = | |
| Business Line. Seller shall give Power Business Line fifteen (15) | = | |
| calendar days written notice prior to the First Delivery Date. If the | = | |
| Completion Date occurs more than thirty (30) days after the First | = | |
| Delivery Date, irrespective of the occurrence of any Force Majeure | = | |
| and otherwise not due to the negligence or fault of BPA, then Seller | = | |
| shall reimburse BPA for payments made for transmission services for | = | |
| the period commencing on the day following the thirtieth (30th) day | = | |
| after the First Delivery Date and continuing until the Completion | = | |
| Date; provided that Power Business Line shall act in a commercially | = | |
| reasonable manner to minimize costs related to such transmission | = | |
| services. | = | |
| (b) Delivery Arrangements Agreement | = | |
| Power Business Line shall enter into one or more agreements with the | = | |
| Transmission System Operator and/or with others that provide for the | = | |
| receipt of the Energy Output at the Point of Delivery and for the | = | |
| transmission and delivery of such Energy Output to points beyond the Point | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 10 | = | |
| of Delivery (such agreements shall constitute the “Delivery Arrangements | = | |
| Agreement”). Power Business Line shall be solely responsible for negotiating, | = | |
| and maintaining during the term of this Agreement, the Delivery | = | |
| Arrangements Agreement. Seller shall diligently cooperate with Power | = | |
| Business Line in these negotiations. | = | |
| (c) Other Provisions Related to Interconnection | = | |
| (1) Access to Facility | = | |
| During the term of this Agreement, appropriate representatives of | = | |
| BPA shall at all reasonable times, including weekends and nights, | = | |
| and with reasonable prior notice, have access to the Facility, including | = | |
| the control room and the Interconnection Facilities, to read and | = | |
| maintain meters and to perform all inspections, maintenance, service, | = | |
| and operational reviews as may be appropriate to facilitate the | = | |
| performance of this Agreement. While at the Facility, such | = | |
| representatives shall observe such reasonable safety precautions as | = | |
| may be required by Seller and shall conduct themselves in a manner | = | |
| that will not interfere with the construction, operation or | = | |
| maintenance of the Facility. | = | |
| (2) Metering Devices | = | |
| (i) All Metering Devices used to measure the Energy Output | = | |
| under this Agreement shall be subject to approval by BPA, | = | |
| owned by Seller, and installed in accordance with the | = | |
| Interconnection Facilities Agreement. Seller shall, at Seller’s | = | |
| expense, install communication equipment that allows BPA to | = | |
| read the Metering Devices from a remote location (such as | = | |
| BPA headquarters) at any time. Metering Devices shall be | = | |
| maintained directly by Seller or by agents or subcontractors | = | |
| directly under the Seller’s control or by the Transmission | = | |
| System Operator. All Metering Devices used to measure the | = | |
| Energy Output under this Agreement shall be sealed and the | = | |
| seal may be broken only when such Metering Devices are to be | = | |
| inspected, and tested and/or adjusted. The number, type, and | = | |
| location of such Metering Devices shall be specified in the | = | |
| Interconnection Facilities Agreement. | = | |
| (ii) All Metering Devices shall be maintained, calibrated, and | = | |
| tested in conformance with the policies of the Transmission | = | |
| System Operator and the terms of the Interconnection | = | |
| Facilities Agreement. Seller shall arrange to test the Metering | = | |
| Devices at least once per calendar year. BPA, at its own | = | |
| expense, may require that Seller initiate testing and inspection | = | |
| of the Metering Devices. Seller shall permit a representative | = | |
| of BPA to witness and verify such inspections and tests, | = | |
| provided, however, that BPA shall comply with all of the | = | |
| Seller’s safety standards. Seller shall provide BPA with copies | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 11 | = | |
| of any periodic or special inspection or testing reports relating | = | |
| to the Metering Devices. | = | |
| (iii) BPA may elect to install and maintain, at its own expense, | = | |
| Metering Devices and data gathering and communication | = | |
| equipment used to monitor, record, or transmit data relating to | = | |
| the Energy Output from the BPA Wind Turbines. Seller shall | = | |
| arrange for a location within the Facility Substation control | = | |
| house accessible to Seller and BPA, for such data gathering | = | |
| and communication equipment that may be installed. | = | |
| (iv) Seller shall notify BPA within 48 hours of Seller receiving | = | |
| actual notice of any inaccuracy or defect in a Metering Device. | = | |
| Seller shall cause the Metering Devices to be adjusted, | = | |
| repaired, replaced, and/or recalibrated as near as practicable | = | |
| to a condition of zero error at the expense of Seller or the Party | = | |
| owning the defective or inaccurate device. | = | |
| (3) Adjustment for Inaccurate Meters | = | |
| If a Metering Device fails to register or is found upon testing to be | = | |
| inaccurate by more than a quarter of one percent (0.25%), an | = | |
| adjustment shall be made correcting all measurements by the | = | |
| inaccurate or defective Metering Device, for both the amount of the | = | |
| inaccuracy and the period of the inaccuracy, in the following manner: | = | |
| (i) In the event that the Metering Device is found to be defective | = | |
| or inaccurate and an adjustment factor for the Metering Device | = | |
| cannot be reliably calculated, the Parties shall use the | = | |
| measurements from BPA-owned meters if they have been | = | |
| installed, fully operational and calibrated pursuant to | = | |
| Section 5(c)(2). If BPA-owned meters have not been installed | = | |
| or, if installed, are not fully operational or calibrated, the | = | |
| Parties shall use production data from Seller’s Computer | = | |
| Monitoring System to determine the amount of such | = | |
| inaccuracy. | = | |
| (ii) In the event that Seller’s Computer Monitoring System is | = | |
| found to be inaccurate by more than two percent (2.0%), the | = | |
| Parties shall estimate the amount of the necessary adjustment | = | |
| using the site meteorological information for the period of the | = | |
| inaccuracy based upon deliveries of Energy Output from the | = | |
| BPA Wind Turbines during periods of similar operating | = | |
| conditions when the Metering Device was registering | = | |
| accurately. The adjustment shall be made for the period | = | |
| during which inaccurate measurements were made. | = | |
| (iii) In the event that the Parties cannot agree on the actual period | = | |
| during which the inaccurate measurements were made, the | = | |
| period during which the measurements are to be adjusted shall | = | |
| be the shorter of (1) the last one-half of the period from the last | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 12 | = | |
| previous test of the Metering Device to the test that found the | = | |
| Metering Device to be defective or inaccurate, or (2) the 180- | = | |
| day period immediately preceding the test that found the | = | |
| Metering Device to be defective or inaccurate. | = | |
| (iv) To the extent that the adjustment period overlaps with a | = | |
| period of deliveries for which payment has already been made | = | |
| to Seller by BPA, BPA shall use the corrected measurements | = | |
| as determined in accordance with this Section to recalculate | = | |
| the amount due for the period of the inaccuracy and shall | = | |
| subtract the previous payments by BPA for such period from | = | |
| such recalculated amount. If the difference is a positive | = | |
| number, the difference shall be paid by BPA to Seller; if the | = | |
| difference is a negative number, that difference shall be paid | = | |
| by Seller to BPA, or at BPA’s discretion such difference may | = | |
| take the form of an offset to payments due Seller by BPA. | = | |
| Payment of such difference by the owing Party shall be made | = | |
| not later than thirty (30) days after the owing Party receives | = | |
| notice of the amount due, unless BPA elects payment via an | = | |
| offset. | = | |
| (4) Reliability Standards | = | |
| Seller shall operate the BPA Wind Turbines in a manner that | = | |
| complies with the operating requirements set forth in the | = | |
| Interconnection Facilities Agreement. | = | |
| 6. Obligation to Sell and Purchase Energy Output | = | |
| (a) Conditional Obligation to Purchase | = | |
| Seller shall achieve the Completion Date by no later than _______, or such | = | |
| later date permitted due to Force Majeure or any delay caused by Power | = | |
| Business Line. In any event, irrespective of Force Majeure, Seller shall | = | |
| achieve the Completion Date no later than _________. Breach of this | = | |
| Section 6(a) shall constitute an Event of Default as provided under | = | |
| Section 10(a)(1) and BPA may pursue remedies available to it including those | = | |
| available pursuant to Section 10(c). | = | |
| (b) Sale and Purchase | = | |
| BPA shall purchase any or all Energy Output generated by the BPA Wind | = | |
| Turbines and delivered to the Point of Delivery prior to the Completion Date. | = | |
| Beginning on the Completion Date, and throughout the term of this | = | |
| Agreement, Seller shall supply from the Facility and sell to BPA, and BPA | = | |
| shall receive and purchase, the entire Energy Output of the BPA Wind | = | |
| Turbines in accordance with the terms of this Agreement. Seller shall | = | |
| deliver the Energy Output to, and make such Energy Output available to | = | |
| BPA at, the Point of Delivery. Neither Party shall curtail or interrupt | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 13 | = | |
| delivery, acceptance, sale and/or purchase of Energy Output for economic | = | |
| reasons. | = | |
| (c) Point of Delivery | = | |
| The Point of Delivery shall be at __________. | = | |
| (d) Exception | = | |
| BPA shall not be obligated to purchase Energy Output that cannot be | = | |
| delivered due to disruptions, breakdowns, electrical system failures and/or | = | |
| mechanical failures, maintenance or repair, including, for reasons of Force | = | |
| Majeure, to the Facility Substation and/or the Grid; provided that such | = | |
| inability to deliver is not due, in whole or in part, to BPA’s negligence or its | = | |
| breach of, or default under, this Agreement or the Delivery Arrangements | = | |
| Agreement. As between BPA and Seller, Seller shall not be entitled to | = | |
| recover lost revenues for events covered in this Section 6(d) from BPA (other | = | |
| than as referred to in the proviso in the previous sentence). | = | |
| (e) Exclusions | = | |
| The Parties acknowledge that the BPA Wind Turbines have the potential to | = | |
| produce substantial carbon dioxide credits and other environmental air | = | |
| quality credits and related emissions reduction credits or benefits (economic | = | |
| and otherwise) related to the generation of energy after Commercial | = | |
| Operation. The Parties agree that any and all such credits or benefits shall | = | |
| be the property of BPA. In furtherance of the foregoing, Seller hereby | = | |
| transfers to BPA all right, title and interest Seller has or will have in, to, | = | |
| and under such credits or benefits. Seller agrees to provide such further | = | |
| evidence of the right, title and interest of BPA in such credits or benefits, | = | |
| and such information with respect to such credits or benefits, as BPA shall | = | |
| reasonably request. | = | |
| 7. Payment for Energy Output | = | |
| (a) Price for Energy Output Prior to the Completion Date | = | |
| Prior to the Completion Date, BPA agrees to purchase from Seller any | = | |
| Energy Output produced by Seller at a rate of ______ per kilowatt-hour. For | = | |
| the period following the 30-day period specified in Section 5(a)(2) until the | = | |
| Completion Date, Seller shall be responsible for payment of all fixed charges | = | |
| required under the Delivery Arrangements Agreement for the use of the | = | |
| Grid, except as such delay is caused by BPA’s negligence or its breach of, or | = | |
| default under, this Agreement or the Delivery Arrangements Agreement. | = | |
| (b) Price for Energy Output after the Completion Date | = | |
| After the Completion Date, the Energy Payment Rate for Energy Output is | = | |
| as follows: | = | |
| (1) [To be negotiated] | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 14 | = | |
| 8. Billing and Payment | = | |
| (a) Billing Statement and Invoices | = | |
| The monthly billing period shall be the calendar month. No later than | = | |
| fifteen (15) calendar days after the end of each calendar month, Seller shall | = | |
| prepare, and provide to BPA, a statement showing Energy Output and an | = | |
| invoice for any amounts due from BPA to Seller under the terms of this | = | |
| Agreement, for the previous calendar month billing period. The statement | = | |
| and invoice shall be sent to the address specified in Section 12(a). The form | = | |
| of the invoice shall as shown in Exhibit C. | = | |
| (b) Metered Billing Data | = | |
| All billing data based on metered deliveries to BPA shall be collected by the | = | |
| Metering Device(s) in accordance with Section 5(c)(2). | = | |
| (c) Payment Dates; Late Payments | = | |
| Payments due Seller or BPA, as the case may be, shall be due and payable by | = | |
| electronic funds transfer, or by wire transfer, as designated by the owed | = | |
| Party, on or before the thirtieth (30th) calendar day following owing Party’s | = | |
| receipt of owed Party’s proper billing invoice. If the amount due is not paid | = | |
| on or before the due date, a late payment charge shall be applied to the | = | |
| unpaid balance and shall be added to the next invoice. Such late payment | = | |
| charge shall be calculated based on an annual interest rate consistent with | = | |
| the Prompt Payment Act (31 U.S.C. §§ 3901-3909) and effective in the month | = | |
| in which the invoice is rendered. | = | |
| (d) Billing Disputes | = | |
| (1) Either BPA or Seller may contest invoiced amounts if a reasonable | = | |
| basis exists therefor (a “Billing Dispute”). The contesting Party’s | = | |
| representative shall notify in writing the representative of the other | = | |
| Party of a Billing Dispute within thirty (30) calendar days from the | = | |
| receipt of a disputed invoice rendered under Section 8 of this | = | |
| Agreement. | = | |
| (2) Uncontested portions of invoiced amounts shall be paid on or before | = | |
| the due date or shall be subject to the late payment interest charges | = | |
| set forth above. | = | |
| 9. Operations and Maintenance | = | |
| (a) Conditions Precedent to Facility Completion Date | = | |
| Seller shall advise BPA in writing when Seller believes that all of the | = | |
| Conditions Precedent have been or will shortly be completed. In so doing, | = | |
| Seller shall provide evidence reasonably requested by BPA of the satisfaction | = | |
| or occurrence of all Conditions Precedent. BPA shall use its best efforts to | = | |
| respond in writing within two (2) Business Days (but in any event shall | = | |
| respond within six (6) Business Days) of Seller’s written notification either | = | |
| confirming to Seller that all of the Conditions Precedent have been satisfied | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 15 | = | |
| or have occurred or stating with specificity those Conditions Precedent that | = | |
| BPA believes, in good faith, have not been satisfied or have not occurred. | = | |
| BPA’s confirmation shall not be unreasonably withheld or delayed, and | = | |
| BPA’s failure to respond within six (6) Business Days of Seller’s written | = | |
| notification shall be deemed to constitute BPA’s written confirmation to | = | |
| Seller of the satisfaction or occurrence of all Conditions Precedent. The | = | |
| occurrence of each of the following shall be “Conditions Precedent” to the | = | |
| Completion Date: | = | |
| (1) Seller has certified to BPA in writing that all of the BPA Wind | = | |
| Turbines in the Facility have achieved Commercial Operation and the | = | |
| Commercial Operation Date of each Wind Turbine. | = | |
| (2) the Facility is in compliance with the Interconnection Facilities | = | |
| Agreement; | = | |
| (3) certificates of insurance coverages or insurance policies required by | = | |
| Section 16 have been obtained and submitted to BPA; | = | |
| (4) all construction and testing of the Interconnection Facilities have | = | |
| been completed in accordance with the standards of the | = | |
| Interconnection Facilities Agreement and Good Utility Industry | = | |
| Practices; | = | |
| (5) Seller is in all material respects in compliance with the terms and | = | |
| conditions of this Agreement; and | = | |
| (6) Seller has provided BPA with copies of all material land leases and | = | |
| major permits needed to construct and operate the Facility, provided | = | |
| that Seller may delete or remove confidential commercial terms | = | |
| contained therein. | = | |
| (b) Facility Operation and Reliability Standards | = | |
| Seller shall maintain the Facility in a manner that complies with the rules | = | |
| for safety and reliability set forth in the Interconnection Facilities | = | |
| Agreement and Good Utility Industry Practice. Seller shall comply with all | = | |
| applicable local, state, and Federal laws, regulations, and ordinances, | = | |
| including, but not limited to, all applicable Federal, state, and local | = | |
| environmental laws and regulations presently in effect or which may be | = | |
| enacted during the term of this Agreement. Seller shall staff, control, and | = | |
| operate the Facility consistent at all times with the Operating Procedures | = | |
| referenced below in this Section. | = | |
| (1) Seller shall provide a maintenance schedule for the Facility for the | = | |
| first year of operation at least thirty (30) days prior to the Completion | = | |
| Date. Thereafter, Seller shall submit to BPA annual maintenance | = | |
| schedules no later than October 1 of each year that cover the twelve | = | |
| (12) month period starting January 1 and ending December 31 and a | = | |
| long-term maintenance schedule that will encompass the immediately | = | |
| ensuing four (4) maintenance years. BPA shall provide written notice | = | |
| of any reasonable objections to the proposed annual maintenance | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 16 | = | |
| schedule within ten (10) Business Days of receipt thereof, and failure | = | |
| to so object shall be deemed approval of the annual maintenance | = | |
| schedule. Seller shall furnish BPA with reasonable advance notice of | = | |
| any change in the annual maintenance schedule. Reasonable advance | = | |
| notice of any change in the annual maintenance schedule involving | = | |
| any shutdown of the entire Facility is as follows: | = | |
| Scheduled Outage Expected | = | |
| Duration | = | |
| Advance Notice to BPA | = | |
| (1) Less than 2 days at least 24 hours | = | |
| (2) 2 to 5 days at least 7 days | = | |
| (3) Major overhauls (over 5 days) at least 90 days | = | |
| (2) Seller shall not schedule any planned maintenance outages for the | = | |
| entire Facility during any weekday of an On-Peak Month without the | = | |
| prior written approval of BPA not to be unreasonably withheld, | = | |
| delayed or conditioned. | = | |
| (c) Operations Record | = | |
| Seller shall maintain an operations log, which shall include information on | = | |
| the Actual Average Annual Output of the BPA Wind Turbines, planned and | = | |
| unplanned maintenance outages, circuit breaker trip operations requiring a | = | |
| manual reset, partial deratings of equipment, and any other significant event | = | |
| related to the operation of the BPA Wind Turbines. The operations record | = | |
| shall be available for inspection by BPA upon reasonable advance request, | = | |
| and Seller shall make the data available on a real-time basis by remote | = | |
| access to BPA, if BPA acquires the necessary equipment and software license | = | |
| to process the data by remote access. | = | |
| (d) Monthly Reports | = | |
| Seller shall provide to BPA a monthly report, by no later than thirty (30) | = | |
| days after the end of each calendar month, with such information and in | = | |
| such form as BPA shall reasonably request, by electronic mail and in hard | = | |
| copy, regarding the operations of the BPA Wind Turbines. Each monthly | = | |
| report shall include: all reporting information maintained in the operations | = | |
| record; data on the wind during the month, a comparison of the available | = | |
| wind energy compared to the actual wind energy generated during the | = | |
| month, and hourly output of the BPA Wind Turbines. The monthly report | = | |
| shall also include an estimate of monthly output for the calendar year and | = | |
| such other information related to the operation of the BPA Wind Turbines | = | |
| that BPA reasonably requests. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 17 | = | |
| (e) Operating Committee and Operating Procedures | = | |
| (1) BPA and Seller shall each appoint one delegate and one alternate | = | |
| delegate to act on matters relating to the operation of the BPA Wind | = | |
| Turbines under this Agreement. Such delegates shall constitute the | = | |
| Operating Committee. The Parties shall notify each other in writing | = | |
| of such appointments and any changes thereto. The Operating | = | |
| Committee shall have no authority to modify the terms or conditions | = | |
| of this Agreement. | = | |
| (2) The Operating Committee shall, acting reasonably, develop mutually | = | |
| agreeable written operating procedures (“Operating Procedures”) in | = | |
| draft form no later than thirty (30) days prior to the expected | = | |
| Completion Date. Operating Procedures shall include, but not be | = | |
| limited to: method of day-to-day communications; metering, | = | |
| telemetering, telecommunications, and data acquisition procedures; | = | |
| operating and maintenance scheduling and reporting; operations log; | = | |
| and such other matters as may be mutually agreed upon by the | = | |
| Parties. The agreed upon Operating Procedures shall be provided and | = | |
| distributed within ninety (90) days following the Completion Date. | = | |
| 10. Default and Termination | = | |
| (a) Events of Default of Seller | = | |
| (1) The occurrence of any of the following shall constitute an immediate | = | |
| Event of Default without the opportunity to cure: | = | |
| (i) Seller dissolution or liquidation; | = | |
| (ii) Seller assignment of this Agreement or any of its rights under | = | |
| it for the benefit of creditors; | = | |
| (iii) Seller abandonment of construction and/or operation of the | = | |
| Facility; and | = | |
| (iv) Seller filing of a petition in bankruptcy or insolvency or for | = | |
| reorganization or arrangement under the bankruptcy laws of | = | |
| the United States or under any insolvency act of any state, or | = | |
| Seller voluntarily taking advantage of any such law or act by | = | |
| answer or otherwise. | = | |
| (2) The occurrence of any of the following shall constitute an Event of | = | |
| Default of Seller unless Seller shall have cured the same within | = | |
| ninety (90) days after receipt by Seller of written notice thereof from | = | |
| BPA: | = | |
| (i) Seller’s failure to meet the Completion Date as set forth in | = | |
| Section 6(a) (subject to the extensions of time available to | = | |
| Seller under Section 6(a)); | = | |
| (ii) Seller’s assignment of this Agreement or any of Seller’s rights | = | |
| under this Agreement or the sale or transfer of voting control | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 18 | = | |
| of Seller or Seller’s sale or other transfer of any material | = | |
| portion of its interest in the Facility without obtaining BPA’s | = | |
| prior written consent pursuant to Section 18; | = | |
| (iii) The filing of a case in bankruptcy or any proceeding under any | = | |
| other insolvency law against Seller as debtor or its parent or | = | |
| any other affiliate that could materially impact Seller’s ability | = | |
| to perform its obligations hereunder; provided, however, that | = | |
| Seller does not obtain a stay or dismissal of the filing within | = | |
| ninety (90) days of the date of such filing; | = | |
| (iv) After the Completion Date, Seller tampering with or | = | |
| adjustment of the Metering Devices for the BPA Wind | = | |
| Turbines in ways not expressly permitted by Sections 5(c)(2) | = | |
| and 5(c)(3); | = | |
| (v) After the Completion Date, the sale by Seller to a third party, | = | |
| or diversion by Seller for any use, of the Energy Output | = | |
| committed to BPA by Seller absent BPA’s prior written consent | = | |
| to such diversion or use; | = | |
| (vi) After the Completion Date, Seller’s failure to maintain in effect | = | |
| any material agreements required to deliver the Energy | = | |
| Output to the Point of Delivery; | = | |
| (vii) Commencing on the first (1st) anniversary of the Completion | = | |
| Date, Seller’s failure to use commercially reasonable efforts to | = | |
| obtain, for the BPA Wind Turbines, an average Availability | = | |
| Factor greater than seventy-five percent (75%) in the | = | |
| immediately preceding twelve (12) consecutive months; | = | |
| provided that such failure is not the result of Force Majeure; | = | |
| (viii) Seller’s failure to acquire or maintain permits needed to | = | |
| construct and operate the Facility; | = | |
| (ix) Seller’s failure to acquire or maintain land rights needed to | = | |
| access, construct, and operate the Facility; or | = | |
| (x) Seller’s failure to comply with any other material obligation | = | |
| under this Agreement. | = | |
| (3) Seller’s failure to make any payment when required under this | = | |
| Agreement shall constitute an Event of Default of Seller unless | = | |
| (1) Seller shall have cured the same within thirty (30) days after | = | |
| receipt by Seller of written notice thereof from BPA or (2) Seller has | = | |
| filed in good faith a Billing Dispute with respect to such unpaid | = | |
| amounts and complied with Section 8(d). | = | |
| (b) Events of Default of BPA | = | |
| (1) The following shall constitute Events of Default of BPA upon their | = | |
| occurrence and no cure period shall be applicable: | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 19 | = | |
| (i) BPA’s dissolution or liquidation, provided that division of BPA | = | |
| into multiple entities shall not constitute dissolution or | = | |
| liquidation; or | = | |
| (ii) BPA’s general assignment of this Agreement or any of its | = | |
| rights hereunder for the benefit of creditors. | = | |
| (2) The following shall constitute Events of Default of BPA upon their | = | |
| occurrence unless cured within ninety (90) days after the receipt by | = | |
| BPA of written notice thereof from Seller: | = | |
| (i) BPA fails to purchase the entire Energy Output of the BPA | = | |
| Wind Turbines in accordance with Section 6(b); | = | |
| (ii) BPA defaults on its obligations under the Delivery | = | |
| Arrangements Agreement, and such default renders Seller | = | |
| unable to deliver the Energy Output at the Point of Delivery or | = | |
| affects Seller’s right to be paid under this Agreement for | = | |
| delivery at the Point of Delivery for its Energy Output; | = | |
| (iii) BPA’s assignment of this Agreement or any of BPA’s rights | = | |
| under this Agreement without obtaining Seller’s prior written | = | |
| consent pursuant to Section 18; or | = | |
| (iv) BPA’s failure to comply with any other material obligation | = | |
| under this Agreement after receipt of notice thereof. | = | |
| (3) BPA’s failure to make any payment when required under this | = | |
| Agreement shall constitute an Event of Default unless (1) BPA shall | = | |
| have cured the same within thirty (30) days after receipt by BPA of | = | |
| written notice thereof or (2) BPA has filed in good faith a Billing | = | |
| Dispute with respect to such unpaid amounts and complied with | = | |
| Section 8(d). | = | |
| (c) Termination for Cause | = | |
| In addition to any other right or remedy available at law or in equity or | = | |
| pursuant to this Agreement, including the right to seek damages for breach | = | |
| of this Agreement, the non-defaulting Party may, upon written notice to the | = | |
| other Party, terminate this Agreement if any one or more of the Events of | = | |
| Default described in this Section occur and are not cured within the time | = | |
| periods set forth herein. In the event of a termination by BPA due to an | = | |
| Event of Default under Section 10(a)(2)(i), neither Party shall have any | = | |
| further liability or obligation to the other Party with respect to this | = | |
| Agreement, except Seller shall, after receipt of a detailed, written | = | |
| itemization and description, reimburse BPA for reasonable payments made | = | |
| by BPA pursuant to the Delivery Arrangements Agreement. Neither Party | = | |
| shall have the right to terminate this Agreement except as provided for upon | = | |
| the occurrence of an Event of Default as described above or as otherwise may | = | |
| be explicitly provided for in this Agreement. All remedies in this Agreement | = | |
| shall survive termination or cancellation of this Agreement and are | = | |
| cumulative. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 20 | = | |
| (d) No Consequential Damages | = | |
| In no event shall either Party be liable for the other Party’s alleged lost | = | |
| profits or other consequential damages; provided, however, that any amounts | = | |
| which are expressly provided herein to be payable shall not be construed as | = | |
| lost profits or consequential damages. | = | |
| 11. Termination for Convenience | = | |
| (a) Termination by BPA for Convenience | = | |
| BPA may provide notice of its intent to terminate this Agreement for | = | |
| convenience either during the period between the execution of this | = | |
| Agreement and the date that Seller provides written notice to BPA, in the | = | |
| form of Exhibit B, that the Facility is ready for construction (the “Initial | = | |
| Period”), or after the Facility has achieved Commercial Operation (the | = | |
| “Operation Period”). | = | |
| (1) During the Initial Period, BPA must provide its notice of intent to | = | |
| terminate this Agreement for convenience at least thirty (30) days | = | |
| prior to the actual date of termination. | = | |
| (2) During the Operation Period, BPA shall provide its notice of intent to | = | |
| terminate this Agreement for convenience at least ninety (90) days | = | |
| prior to the actual date of termination. | = | |
| (3) If a termination occurs under this Section 11(a), then BPA shall pay | = | |
| to Seller in the case of termination under clause (1) or (2), above, [an | = | |
| amount to be negotiated]. | = | |
| (b) Termination Under Section 11(a) | = | |
| Termination of this Agreement pursuant to Section 11(a) shall relieve the | = | |
| Parties of all further obligations under this Agreement upon full and | = | |
| complete payment by BPA of all amounts due and owing pursuant to this | = | |
| Section 11 and Exhibit D. | = | |
| 12. Contract Administration and Notices | = | |
| (a) Notices | = | |
| All notices, demands or other communications required from or given by a | = | |
| Party pursuant to this Agreement shall be provided to the other Party in | = | |
| accordance with the requirements set forth in this section. All notices, | = | |
| demands or other communications required hereunder shall be given or | = | |
| made in writing and shall be delivered personally, sent by facsimile (fax), | = | |
| sent by a courier service, or mailed by registered or certified mail, postage | = | |
| prepaid to the parties at the following addresses, or at such other address as | = | |
| may be designated by notice given pursuant hereto: | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 21 | = | |
| If to Seller: [Address] | = | |
| Attn: _________________ | = | |
| Phone: _________________ | = | |
| Fax: _________________ | = | |
| If to BPA: Bonneville Power Administration | = | |
| 905 N.E. 11th Street (97232) | = | |
| P.O. Box 3621 | = | |
| Portland, OR 97208-3621 | = | |
| Attn: Wind Project Manager – PGC-6 | = | |
| Contract Generating Resources | = | |
| Phone: 503-230-4386 | = | |
| Fax: 503-230-4973 | = | |
| Notices given by hand, telegraphically transmitted, or sent by telecopy shall | = | |
| be deemed given the day so given, transmitted or sent. Notices mailed or | = | |
| sent by a courier service as provided herein shall be deemed given on the | = | |
| third Business Day following the date so mailed or on the date of actual | = | |
| receipt, whichever is earlier. | = | |
| (b) Representative for Notice | = | |
| Each Party shall maintain a designated representative to receive notices. | = | |
| Such representative may, at the option of each Party, be the same person as | = | |
| that Party’s representative or alternate representative on the Operating | = | |
| Committee, or a different person. Either Party may, by written notice to the | = | |
| other, pursuant to Section 12(a) above, change the representative or the | = | |
| address to which such notices and communications are to be sent. | = | |
| (c) Authority of Representatives | = | |
| The Parties’ representatives designated in Section 12(b) above shall have | = | |
| authority to act for their respective principals in all technical matters | = | |
| relating to performance of this Agreement and to attempt to resolve disputes | = | |
| or potential disputes. However, they shall not have the authority to amend | = | |
| or modify any provision of this Agreement. | = | |
| (d) Operating Records | = | |
| Seller and BPA shall each keep complete and accurate records and all other | = | |
| data required by each of them for the purposes of proper administration of | = | |
| this Agreement, including such records as may be required by state or | = | |
| Federal regulatory authorities. | = | |
| (e) Billing and Payment Records | = | |
| To facilitate payment and verification, Seller and BPA shall keep all books | = | |
| and records necessary for billing and payments in accordance with the | = | |
| provisions of Section 7 and grant the other Party reasonable access to those | = | |
| records. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 22 | = | |
| (f) Examination of Records | = | |
| Seller and BPA may examine the billing and operating records and data kept | = | |
| by the other relating to transactions under, and administration of, this | = | |
| Agreement at any time during the period the records are required to be | = | |
| maintained, upon request and during normal business hours. | = | |
| 13. Dispute Resolution | = | |
| (a) The Parties shall make a good faith effort to negotiate a resolution of | = | |
| disputes before initiating litigation. During a contract dispute or contract | = | |
| issue between the Parties arising out of this Agreement, the Parties shall | = | |
| continue performance under this Agreement pending resolution of the | = | |
| dispute, unless to do so would be impossible or impracticable. Seller reserves | = | |
| the right to seek judicial resolution of any dispute arising under this | = | |
| Agreement that is not subject to arbitration under this Section 13. | = | |
| (b) Final actions subject to section 9(e) of the Northwest Power Act are not | = | |
| subject to binding arbitration and shall remain within the exclusive | = | |
| jurisdiction of the United States Ninth Circuit Court of Appeals. Any | = | |
| dispute regarding any rights of the Parties under any BPA policy, including | = | |
| the implementation of such policy, shall not be subject to arbitration under | = | |
| this Agreement. Seller reserves the right to seek judicial resolution of any | = | |
| dispute arising under this Agreement that is not subject to arbitration under | = | |
| this Section 13. For purposes of this Section 13, BPA policy means any | = | |
| written document adopted by BPA as a final action in a decision record or | = | |
| record of decision that establishes a policy of general application, or makes a | = | |
| determination under an applicable statute. If either Party asserts that a | = | |
| dispute is excluded from arbitration under this Section 13, either Party may | = | |
| apply to the Federal court having jurisdiction for an order determining | = | |
| whether such dispute is subject to arbitration under this Section 13. | = | |
| (c) Any contract dispute or contract issue between the Parties arising out of this | = | |
| Agreement, except for disputes that are excluded through Section 13(a) | = | |
| above, shall be subject to binding arbitration. The Parties shall make a good | = | |
| faith effort to resolve such disputes before initiating arbitration proceedings. | = | |
| During arbitration, the Parties shall continue performance under this | = | |
| Agreement pending resolution of the dispute, unless to do so would be | = | |
| impossible or impracticable. | = | |
| (d) Any arbitration shall take place in Portland, Oregon, unless the Parties | = | |
| agree otherwise. The CPR Institute for Dispute Resolution’s arbitration | = | |
| procedures for commercial arbitration, Non-Administered Arbitration Rules | = | |
| (CPR Rules), shall be used for each dispute; provided, however, that: (1) the | = | |
| Parties shall have the discovery rights provided in the Federal Rules of Civil | = | |
| Procedure unless the Parties agree otherwise; and (2) for claims of $1 million | = | |
| or more, each arbitration shall be conducted by a panel of three neutral | = | |
| arbitrators. The Parties shall select the arbitrators from a list containing | = | |
| the names of 15 qualified individuals supplied by the CPR Institute for | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 23 | = | |
| Dispute Resolution. If the Parties cannot agree upon three arbitrators on the | = | |
| list within 20 Business Days, the Parties shall take turns striking names | = | |
| from the list of proposed arbitrators. The Party initiating the arbitration | = | |
| shall take the first strike. This process shall be repeated until three | = | |
| arbitrators remain on the list, and those individuals shall be designated as | = | |
| the arbitrators. For disputes involving less than $1 million, a single neutral | = | |
| arbitrator shall be selected consistent with section 6 of the CPR Rules. | = | |
| (e) Except for arbitration awards, which declare the rights and duties of the | = | |
| Parties under this Agreement, the payment of monies shall be the exclusive | = | |
| remedy available in any arbitration proceeding. Under no circumstances | = | |
| shall specific performance be an available remedy against BPA. The | = | |
| arbitration award shall be final and binding on both Parties, except that | = | |
| either Party may seek judicial review based upon any of the grounds referred | = | |
| to in the Federal Arbitration Act, 9 U.S.C. §1-16 (1988). Judgment upon the | = | |
| award rendered by the arbitrators may be entered by any court having | = | |
| jurisdiction thereof. | = | |
| (f) Each Party shall be responsible for its own costs of arbitration, including | = | |
| legal fees. The arbitrators may apportion all other costs of arbitration | = | |
| between the Parties in such manner as they deem reasonable taking into | = | |
| account the circumstances of the case, the conduct of the Parties during the | = | |
| proceeding, and the result of the arbitration. | = | |
| 14. Force Majeure | = | |
| (a) Definition of Force Majeure | = | |
| The term “Force Majeure,” as used in this Agreement, means causes or | = | |
| events beyond the reasonable control of, and without the fault or negligence | = | |
| of the party claiming Force Majeure, including, without limitation, acts of | = | |
| God, sudden actions of the elements such as floods, earthquakes, hurricanes, | = | |
| wind speeds in excess of safe working limits, or tornadoes; sabotage; | = | |
| vandalism beyond that which could reasonably be prevented by Seller; | = | |
| terrorism; war; riots; fire; explosion; severe cold or hot weather or snow or | = | |
| other extreme or severe weather conditions; blockage, insurrection, strike, | = | |
| slow down, or labor disruptions (even if such difficulties could be resolved by | = | |
| conceding to the demands of a labor group); and requirements, actions or | = | |
| failures to act by Transmission System Operator, but only if such | = | |
| requirements, actions or failures to act prevent or delay performance; the | = | |
| adoption or change in any rule or regulation or judicial decision lawfully | = | |
| imposed by Federal, state, or local government bodies; inability, despite due | = | |
| diligence, to obtain required licenses, permits, or approvals for the | = | |
| construction and operation of the Facility under the terms of this Agreement; | = | |
| and the mechanical or equipment breakdown of the Grid to the extent not | = | |
| caused by the party claiming the Force Majeure. The term “Force Majeure” | = | |
| does not include any full or partial curtailment in the electric output of the | = | |
| Facility that is caused by or arises from the act or acts of any third party, | = | |
| including, without limitation, any vendor, materialman, customer, or | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 24 | = | |
| supplier of Seller, unless such act or acts is or are itself or themselves | = | |
| excused by reason of Force Majeure. The term “Force Majeure” does not | = | |
| include any full or partial curtailment in the electric output of the Facility | = | |
| that is caused by or arises from a mechanical or equipment breakdown of the | = | |
| Facility, or fires, explosions, or other mishap or events or conditions | = | |
| attributable to normal wear and tear or flaws related to the Facility, unless | = | |
| caused by a Force Majeure event specifically listed in the first sentence of | = | |
| this Section 14(a). | = | |
| (b) Applicability of Force Majeure | = | |
| Neither Party shall be responsible or liable for any delay or failure in its | = | |
| performance under this Agreement due to conditions or events of Force | = | |
| Majeure (except that any and all obligations to pay money shall not be | = | |
| delayed or excused by conditions or events of Force Majeure), provided that: | = | |
| (1) the non-performing Party gives the other Party prompt written notice | = | |
| describing the particulars of the occurrence of the Force Majeure; | = | |
| (2) the suspension of performance is of no greater scope and of no longer | = | |
| duration than is required by the Force Majeure; | = | |
| (3) the non-performing Party proceeds with reasonable diligence to | = | |
| remedy its inability to perform and provides weekly progress reports | = | |
| to the other Party describing actions taken to end the Force Majeure; | = | |
| and | = | |
| (4) the non-performing Party shall provide written notice of its ability to | = | |
| resume performance of its obligations under this Agreement. | = | |
| (c) Limitations on Effect of Force Majeure | = | |
| In no event will any delay or failure of performance caused by any conditions | = | |
| or events of Force Majeure extend this Agreement beyond its stated term. In | = | |
| the event of any delay or failure of performance caused by conditions or | = | |
| events of Force Majeure, which would otherwise constitute an Event of | = | |
| Default pursuant to Section 10, the cure provisions of Section 10 shall not | = | |
| apply and such delay or failure of performance, if not previously cured, shall | = | |
| be extended day-for-day by the event of Force Majeure; provided that such | = | |
| delay or failure shall become an Event of Default one (1) year from the date | = | |
| of notice provided for in Section 10. The other Party may, at any time | = | |
| following the end of such one-year period, terminate this Agreement upon | = | |
| written notice to the affected Party, without further obligation by the | = | |
| terminating Party except as to costs and unpaid balances incurred prior to | = | |
| the effective date of such termination. The other Party may, but shall not be | = | |
| obligated to, extend such one year period, for such additional time as it, at its | = | |
| sole discretion, deems appropriate, if the affected Party is exercising due | = | |
| diligence in its efforts to cure the conditions or events of Force Majeure. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 25 | = | |
| (d) Delays Attributable to BPA | = | |
| Seller shall be excused from delays in meeting performance deadlines under | = | |
| this Agreement, on a day-for-day basis, for any delays attributable to BPA, | = | |
| including, without limitation, delays in BPA obtaining any required permits, | = | |
| consents, or approvals and agreements, including, without limitation, the | = | |
| Delivery Arrangements Agreement, from governmental authorities or third | = | |
| parties required for BPA to perform its obligations under this Agreement. | = | |
| Seller shall provide BPA with timely written notice that a delay allegedly | = | |
| attributable to BPA has occurred or is expected to occur. The notice shall | = | |
| specify the length of any extension to a performance deadline to which Seller | = | |
| feels entitled. | = | |
| 15. Representations and Warranties | = | |
| (a) Seller’s Representations and Warranties | = | |
| Seller hereby represents and warrants that as of the date hereof: | = | |
| (1) Seller is an [which state] corporation, duly organized, validly existing | = | |
| and in good standing under the laws of the State of ______, and is | = | |
| qualified to perform its obligations under this Agreement in [state | = | |
| where facility is located] and in each other jurisdiction where the | = | |
| failure to so qualify would have a material adverse effect upon the | = | |
| business or financial condition of Seller; and Seller has all requisite | = | |
| power and authority to conduct its business, to own its properties, and | = | |
| to execute, deliver, and perform its obligations under this Agreement. | = | |
| (2) The execution, delivery, and performance of its obligations under this | = | |
| Agreement by Seller have been duly authorized by all necessary | = | |
| corporate action, and do not and will not: | = | |
| (i) require any consent or approval of Seller’s members other than | = | |
| that which has been obtained and is in full force and effect; | = | |
| (ii) violate any provision of law, rule, regulation, order, writ, | = | |
| judgment, injunction, decree, determination, or award | = | |
| currently in effect having applicability to Seller or violate any | = | |
| provision in any charter documents of Seller, the violation of | = | |
| which could have a material adverse effect on the ability of | = | |
| Seller to perform its obligations under this Agreement; | = | |
| (iii) result in a breach or constitute a default under Seller’s charter | = | |
| documents, or under any agreement relating to the | = | |
| management or affairs of Seller or any indenture or loan or | = | |
| credit agreement, or any other agreement, lease, or instrument | = | |
| to which Seller is a party or by which Seller or its properties or | = | |
| assets may be bound or affected, the breach or default of which | = | |
| could reasonably be expected to have a material adverse effect | = | |
| on the ability of Seller to perform its obligations under this | = | |
| Agreement; or | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 26 | = | |
| (iv) result in, or require the creation or imposition of any mortgage, | = | |
| deed of trust, pledge, lien, security interest, or other charge or | = | |
| encumbrance of any nature (other than as may be | = | |
| contemplated by this Agreement) upon or with respect to any | = | |
| of the assets or properties of Seller now owned or hereafter | = | |
| acquired, the creation or imposition of which could reasonably | = | |
| be expected to have a material adverse effect on the ability of | = | |
| Seller to perform its obligation under this Agreement. | = | |
| (3) This Agreement is a valid and binding obligation of Seller. | = | |
| (4) The execution and performance of this Agreement will not conflict | = | |
| with or constitute a breach or default under any contract or | = | |
| agreement of any kind to which Seller is a party or any judgment, | = | |
| order, statute, or regulation that is applicable to Seller or the Facility. | = | |
| (5) To its best knowledge, all approvals, authorizations, consents, or | = | |
| other action required by any governmental authority to authorize | = | |
| Seller’s execution, delivery, and performance under this Agreement | = | |
| have been duly obtained and are in full force and effect. | = | |
| (b) BPA’s Representations and Warranties | = | |
| BPA hereby represents and warrants the following: | = | |
| (1) BPA is authorized by Federal law, including the Northwest Power Act | = | |
| and other applicable laws, to dispose of electric power generated at | = | |
| various Federal hydroelectric projects in the Pacific Northwest or | = | |
| acquired from other resources, including wind energy facilities. | = | |
| (2) The execution and performance of BPA’s obligations under this | = | |
| Agreement has been duly authorized by all necessary agency action, | = | |
| and does not and will not: | = | |
| (i) require any further agency consent or approval; | = | |
| (ii) to the knowledge of BPA, violate any provision of Federal law, | = | |
| rule, regulation, order, writ, judgment, injunction, decree, | = | |
| determination, or award currently in effect having | = | |
| applicability to BPA, or conflict with or constitute a breach or | = | |
| default under any contract or agreement of any kind to which | = | |
| BPA is a party, the violation, conflict, or breach or default of | = | |
| which could have a material adverse effect on the ability of | = | |
| BPA to perform its obligations under this Agreement. | = | |
| (3) This Agreement is a valid and binding obligation of BPA. | = | |
| 16. Insurance and Indemnity | = | |
| (a) Evidence of Insurance | = | |
| (1) During the construction of the Facility, Seller shall, at Seller’s | = | |
| expense, maintain or cause to be maintained property damage | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 27 | = | |
| insurance covering all wind-electric generation facilities at the | = | |
| Facility on an “all-risk” basis, for the full replacement value of such | = | |
| facilities. | = | |
| (2) Commencing on the Completion Date, Seller shall, at Seller’s expense, | = | |
| maintain or cause to be maintained appropriate property and casualty | = | |
| loss insurance for the value of the Facility, and other appropriate | = | |
| insurance for the Facility in accordance with prudent wind industry | = | |
| practice, including as follows: | = | |
| (i) Commercial General Liability covering bodily injury and | = | |
| property damage, boiler and machinery, products/completed | = | |
| operations, contractual and personal injury liability, with | = | |
| limits not less than $5,000,000 combined single limit per | = | |
| occurrence; | = | |
| (ii) All-risk property insurance including earthquake, tornado, and | = | |
| flood, subject to appropriate sublimits, covering physical loss | = | |
| or damage to all real and personal property located at the | = | |
| Facility. | = | |
| (3) The insurance shall acknowledge BPA, its officers, agents, employees, | = | |
| and successors in interest as additional insureds. | = | |
| (4) The insurance shall not affect Seller’s liability under the indemnity | = | |
| provisions of this Agreement and shall not be terminated, expire nor | = | |
| be materially altered except on thirty (30) days prior written notice to | = | |
| BPA and with BPA’s written concurrence. Such concurrence shall not | = | |
| be unreasonably withheld. | = | |
| (5) As evidence that policies do in fact provide the required coverages and | = | |
| limits of insurance and are in full force and effect, Seller, and/or its | = | |
| contractor or representative, shall, at least fourteen (14) days prior to | = | |
| the Completion Date, furnish to BPA certificates of insurance. | = | |
| (b) Limitation on Liability | = | |
| Neither BPA nor Seller (“First Party”) shall be liable, whether in warranty, | = | |
| tort or strict liability, to the other Party (“Second Party”) for any injury or | = | |
| death to any person, or for any loss or damage to any property, caused by or | = | |
| arising out of any electric disturbance of the First Party’s electric system, | = | |
| whether or not such electric disturbance resulted from the First Party’s | = | |
| negligent act or omission. Each Second Party shall release the First Party | = | |
| from, and shall indemnify and hold harmless the First Party from, any such | = | |
| liability. As used in this Section, (1) the term “Party” means, in addition to | = | |
| such Party itself, its agents, directors, officers, contractors and employees; | = | |
| (2) the term “damage” means all damage, including consequential damage; | = | |
| and (3) the term “persons” means any person, including those not connected | = | |
| with either Party to this Agreement. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 28 | = | |
| 17. Regulatory Jurisdiction and Compliance | = | |
| (a) Governmental Jurisdiction and Regulatory Compliance | = | |
| Each party shall at all times comply with all applicable laws, ordinances, | = | |
| rules, and regulations applicable to it. As applicable, each party shall give | = | |
| all required notices, shall procure and maintain all necessary governmental | = | |
| permits, licenses, and inspections necessary for performance of this | = | |
| Agreement, and shall pay its respective charges and fees in connection | = | |
| therewith. | = | |
| (b) Provision of Support | = | |
| Seller shall make available, upon BPA’s reasonable request, any personnel of | = | |
| Seller and any records relating to the Facility to the extent that BPA | = | |
| requires the same in order to fulfill any regulatory reporting requirements, | = | |
| or to assist BPA in litigation, including, but not limited to, proceedings | = | |
| before utility regulatory commissions. BPA shall make available, upon | = | |
| Seller’s reasonable request, any personnel of BPA and any records relating to | = | |
| the Facility to the extent that Seller requires the same in order to fulfill any | = | |
| regulatory reporting requirements, or to assist Seller in litigation, including, | = | |
| but not limited to, proceedings before utility regulatory commissions. | = | |
| 18. Assignment and Other Transfer Restrictions | = | |
| (a) No Assignment Without Consent | = | |
| This Agreement shall be binding upon and inure to the benefit of, or may be | = | |
| performed by, the successors and assigns of the Parties. No Party may | = | |
| assign or otherwise transfer its rights or obligations under this Agreement | = | |
| unless it has obtained the prior written consent of the other Party. Seller | = | |
| may assign and/or delegate, or transfer or permit the transfer of all or any | = | |
| portion of its interests in the Facility or this Agreement, to any person or | = | |
| entity after obtaining the prior written consent of BPA, which shall not be | = | |
| unreasonably withheld, delayed or conditioned; provided that such other | = | |
| person or entity assumes, or is otherwise bound to perform, all of Seller’s | = | |
| obligations under this Agreement. No assignment, delegation, pledge, or | = | |
| transfer shall relieve or release Seller to any extent of any of its pre-transfer | = | |
| obligations under this Agreement. No assignment, pledge, or other transfer | = | |
| of this Agreement by any Party shall operate to release the assignor, pledgor, | = | |
| or transferor from any of its obligations under this Agreement unless consent | = | |
| to the release, which shall not be unreasonably withheld, delayed or | = | |
| conditioned, is given in writing by the other Party. | = | |
| 19. Confidential Information | = | |
| (a) Availability | = | |
| The Parties have and will develop certain information, processes, know-how, | = | |
| techniques and procedures concerning the Facility (collectively, | = | |
| “Information”) which they consider confidential and proprietary. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 29 | = | |
| Notwithstanding the confidential and proprietary nature of such | = | |
| Information, BPA and Seller (each, the “Disclosing Party”) may make this | = | |
| Information available to the other (each, a “Receiving Party”) subject to the | = | |
| provisions of this section. | = | |
| (b) Designation | = | |
| At the time of furnishing or making available for inspection such confidential | = | |
| or proprietary Information, the Disclosing Party shall expressly designate by | = | |
| label, stamp, or oral communication (to be confirmed in writing) the | = | |
| Information which it considers to be confidential and/or proprietary. | = | |
| (c) Obligations | = | |
| The Receiving Party’s obligations with respect to the use or disclosure of | = | |
| such Information thereafter will be as set forth in this section. | = | |
| (d) Conditions and Restrictions | = | |
| Upon receiving or learning of Information designated as confidential and/or | = | |
| proprietary by the Disclosing Party, the Receiving Party shall: | = | |
| (1) treat such Information as confidential and use reasonable care not to | = | |
| divulge such Information to any third party except as required by law, | = | |
| subject to the restrictions set forth below; | = | |
| (2) restrict access to such Information to employees (and others who | = | |
| agree to be bound by this Agreement) whose access is reasonably | = | |
| necessary in developing the Facility and for the purposes of this | = | |
| Agreement; | = | |
| (3) use such Information solely for the purpose of developing the Facility | = | |
| and for the purposes of this Agreement; and | = | |
| (4) upon the termination of this Agreement, destroy or return any such | = | |
| Information in written or other tangible form and any copies thereof, | = | |
| if asked to do so in writing by the Disclosing Party. | = | |
| (e) Exceptions | = | |
| The restrictions in this section do not apply to: | = | |
| (1) the contents of this Agreement, which becomes a public document | = | |
| upon execution; | = | |
| (2) information which is, or becomes, publicly known or available | = | |
| otherwise than through the action of the Receiving Party in violation | = | |
| of this Agreement; | = | |
| (3) information which is in the possession of the Receiving Party prior to | = | |
| receipt from the Disclosing Party or is independently developed by the | = | |
| Receiving Party; provided that the person or persons developing same | = | |
| have not had access to such Information; or | = | |
| (4) information which is, in the reasonable written opinion of counsel to | = | |
| the Receiving Party, required to be disclosed pursuant to applicable | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 30 | = | |
| law or regulation (including any Freedom of Information Act request); | = | |
| provided, however, that the Receiving Party, prior to such disclosure, | = | |
| shall provide reasonable advance notice to the Disclosing Party of the | = | |
| time and scope of the intended disclosure in order to permit the | = | |
| Disclosing Party opportunity to obtain a protective order or otherwise | = | |
| seek to prevent or limit the scope or otherwise impose conditions upon | = | |
| such disclosure. | = | |
| (f) Term of Obligations | = | |
| The obligations of the Parties under this section shall remain in full force | = | |
| and effect for two (2) years following the termination of this Agreement. | = | |
| 20. Miscellaneous | = | |
| (a) Waiver | = | |
| The failure of either Party to enforce or insist upon compliance with or strict | = | |
| performance of any of the terms or conditions of this Agreement, or to take | = | |
| advantage of any of its rights thereunder, shall not constitute a waiver or | = | |
| relinquishment of any such terms, conditions, or rights, but the same shall | = | |
| be and remain at all times in full force and effect. | = | |
| (b) Taxes | = | |
| Seller shall be responsible for any and all present or future Federal, state, | = | |
| municipal, or other lawful taxes applicable by reason of the ownership and | = | |
| operation of the Facility and the sale of energy under this Agreement and all | = | |
| ad valorem taxes relating to the Facility and the Interconnection Facilities. | = | |
| (c) Disclaimer of Third Party Beneficiary Rights | = | |
| In executing this Agreement, BPA does not, nor should it be construed to, | = | |
| extend its credit or financial support for the benefit of any third parties | = | |
| lending money to or having other transactions with Seller. Nothing in this | = | |
| Agreement shall be construed to create any duty to, or standard of care with | = | |
| reference to, or any liability to, any person not a party to this Agreement. | = | |
| (d) Relationship of the Parties | = | |
| This Agreement shall not be interpreted to create an association, joint | = | |
| venture, or partnership between the Parties nor to impose any partnership | = | |
| obligation or liability upon either Party. Neither Party shall have any right, | = | |
| power, or authority to enter into any agreement or undertaking for, or act on | = | |
| behalf of, or to act as an agent or representative of, the other Party. | = | |
| Seller shall be solely liable for the payment of all wages, taxes, and other | = | |
| costs related to the employment of persons to perform such services, | = | |
| including all Federal, state, and local income, social security, payroll, and | = | |
| employment taxes and statutorily mandated workers’ compensation | = | |
| coverage. None of the persons employed by Seller shall be considered | = | |
| employees of BPA for any purpose; nor shall Seller represent to any person | = | |
| that he or she is or shall become a BPA employee. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 31 | = | |
| (e) Survival of Obligations | = | |
| Cancellation, expiration, or earlier termination of this Agreement shall not | = | |
| relieve the Parties of obligations that by their nature should survive such | = | |
| cancellation, expiration, or termination, including, without limitation, | = | |
| warranties, remedies, or indemnities. | = | |
| (f) Severability | = | |
| In the event any of the terms, covenants, or conditions of this Agreement, its | = | |
| Exhibits, or the application of any such terms, covenants, or conditions, shall | = | |
| be held invalid, illegal, or unenforceable by any court having jurisdiction, all | = | |
| other terms, covenants, and conditions of the Agreement and their | = | |
| application not adversely affected thereby shall remain in force and effect, | = | |
| provided that the remaining valid and enforceable provisions materially | = | |
| retain the essence of the parties' original bargain. | = | |
| (g) Interpretation | = | |
| Unless the context of this Agreement otherwise requires, (a) words of any | = | |
| gender include each other gender; (b) words using the singular or plural | = | |
| number also include the plural or singular number, respectively; (c) the | = | |
| terms “hereof,” “herein,” “hereby” and derivative or similar words refer to | = | |
| this entire Agreement including Exhibits; (d) the terms “Section” or “Exhibit” | = | |
| refer to the specified Section or Exhibit of this Agreement; and (e) any | = | |
| reference to the entirety or any part of this Agreement shall refer to any | = | |
| amendment, supplement or replacement of the same. Whenever this | = | |
| Agreement refers to a number of days, such number shall refer to calendar | = | |
| days unless Business Days are specified. | = | |
| (h) Complete Agreement; Amendments | = | |
| The terms and provisions contained in this Agreement and referenced | = | |
| documents constitute the entire Agreement between BPA and Seller and | = | |
| shall supersede all previous communications, representations, or | = | |
| agreements, either verbal or written, between BPA and Seller with respect to | = | |
| the sale of electric capacity and energy from the Facility. This Agreement | = | |
| may be amended, changed, modified, or altered; provided that such | = | |
| amendment, change, modification, or alteration shall be in writing and | = | |
| signed by both Parties hereto. | = | |
| (i) Binding Effect | = | |
| This Agreement, as it may be amended from time to time pursuant to this | = | |
| Section, shall be binding upon and inure to the benefit of the Parties’ | = | |
| respective successors-in-interest, legal representatives, and assigns. | = | |
| (j) Headings | = | |
| Captions and headings used in the Agreement are for ease of reference only | = | |
| and do not constitute a part of this Agreement. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 32 | = | |
| (k) Counterparts | = | |
| This Agreement may be executed in any number of counterparts, and each | = | |
| executed counterpart shall have the same force and effect as an original | = | |
| instrument. | = | |
| (l) Choice of Law | = | |
| This Agreement shall be governed by and construed in accordance with the | = | |
| laws of the State of Oregon (without reference to choice of law doctrine), | = | |
| except to the extent the Parties’ rights and obligations are required to be | = | |
| governed by United States Federal law, then such rights and obligations | = | |
| shall be governed by United States Federal law. | = | |
| (m) Equal Employment Opportunity Compliance Certification | = | |
| Seller acknowledges that BPA is subject to various Federal laws, executive | = | |
| orders, and regulations regarding equal employment opportunity and | = | |
| affirmative action. Only to the extent that such Federal laws, executive | = | |
| orders and regulations are applicable to Seller as a vendor to BPA due to the | = | |
| sale of Energy Output under the terms of this Agreement and are required | = | |
| by law to be incorporated herein, such Federal laws, executive orders and | = | |
| regulations, including, but not limited to, 41 C.F.R. § 60-1.4(a)(1-7), are | = | |
| incorporated by reference into this Agreement. | = | |
| IN WITNESS WHEREOF, the Parties have executed this Agreement. | = | |
| [SELLER] UNITED STATES OF AMERICA | = | |
| Department of Energy | = | |
| Bonneville Power Administration | = | |
| By: By: __________________________ | = | |
| Gregory K. Delwiche | = | |
| [Title] Vice President, Generation Supply | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 1 | = | |
| EXHIBIT A | = | |
| Facility Description and Map | = | |
| The Facility is known as the _______ Wind Project and is located __________. | = | |
| The Facility consists of [number, manufacturer, and model] wind turbines. Each wind | = | |
| turbine is connected to the next by a ___-kV underground collector system. Wind turbines | = | |
| are grouped in “strings” of _ to ___ turbines, each spaced approximately ___ feet from the | = | |
| next. | = | |
| [Further describe the Facility] | = | |
| [Describe Interconnection Facilities] | = | |
| The following site map indicates the location and layout of the BPA Wind Turbines. The | = | |
| following diagram shows the location of Metering Devices and other equipment installed at | = | |
| the Facility Substation. | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 2 | = | |
| [PLACEHOLDER PAGE FOR MAP] | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 3 | = | |
| [PLACEHOLDER PAGE FOR SUBSTATION DIAGRAM] | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 1 | = | |
| EXHIBIT B | = | |
| Form of Notice | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 1 | = | |
| EXHIBIT C | = | |
| Form of Invoice | = | |
| Contract No. 01PB-_____ | = | |
| _________ Wind Project | = | |
| Example of Power Purchase Agreement 1 | = | |
| EXHIBIT D | = | |
| Termination Payment Schedule | = | |
|
/Docs/G/US-Bonneville-WindPowerPurchaseAgreement-CmA/Was/RawText.txt