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HomeMy WebLinkAbout7 Reliability Support Agreement Agenda Item # 7 T TRUCKEE DONNER tj CONSENT To: Board of Directors From: Stephen Hollabaugh Date: April 07, 2010 Subject: Consideration of Agreements with CalPECO and SPPC a) Fringe Area Agreement b) Reliability Agreement 1. WHY THIS MATTER IS BEFORE THE BOARD This matter is before the Board for possible approval of the Sierra Pacific Power Corporation (SPPC), California Pacific Electric Company (CaIPECO) and Truckee Donner PUD Fringe Area Agreement and the Reliability Support Agreement. 2. HISTORY Sierra and CalPeco entered into an Asset Purchase Agreement dated April 22, 2009 pursuant to which Sierra agreed to sell, and CalPeco agreed to purchase, certain electric distribution and generation assets located in California. On October 16, 2009, Sierra and CalPeco filed with the California Public Utilities Commission ("CPUC") a Joint Application for Transfer of Control and Additional Requests Relating to the Proposed Transaction. On November 23, 2009, TDPUD filed with the CPUC a protest to the application, in which it made claims related to Sierra, CalPeco, and the transaction. On January 19, 2010 the three parties executed a term sheet outlining the principal terms and conditions to be memorialized in the final agreement, and in which the three parties agreed to negotiate in good faith with the intent to execute a binding settlement agreement. On February 17, 2010 the Board approved the final settlement agreement with Sierra and CalPeco. This settlement agreement described the "Fringe Area Agreement" and the "Reliability Support Agreement" that would follow the final settlement. 3. NEW INFORMATION The "Fringe Area Agreement" and "Reliability Support Agreement" described in the settlement agreement with Sierra and CalPeco are attached and have been reviewed by counsel and staff. Item 7 in the Settlement Agreement describes the "Fringe Area Agreement" that is attached and Item 4 in the Settlement Agreement is the "Mutual Assistance Agreement" which has been changed to the Reliability Support Agreement. Both of these agreements have been reviewed by Staff and counsel and are ready for signature. 4. FISCAL IMPACT There is no financial impact for this item. 5. RECOMMENDATION Authorize the Board President to sign the "Fringe Area Agreement" and the "Reliability Support Agreement" among Sierra Pacific Power Company, California Pacific Electric Company, LLC and Truckee Donner Public Utility District. Stephen Hollabaugh Michael D. Holley Assistant General Manager General Manager EXECUTION COPY SETTLEMENT AGREEMENT BY AND AMONG SIERRA PACIFIC POWER COMPANY, CALIFORNIA PACIFIC ELECTRIC COMPANY, LLC, AND TRUCKEE DONNER PUBLIC UTILITY DISTRICT This Settlement Agreement (this "Agreement'), dated as of February , 2010, is made and entered into by and among Sierra Pacific Power Company C'Sierra"), California Pacific Electric Company, LLC ("CalPeco"), and Truckee-Donner Public Utility District ("TDPUD') (Sierra, CalPeco and TDPUD are referred to herein individually as a "party"-and collectively as the `parties"). WHEREAS, Sierra and CalPeco entered into an Asset Purchase Agreement dated April 22, 2009 (as amended or supplemented from time to time, "APA'), pursuant to which Sierra agreed to sell, and CalPeco agreed to purchase, certain electric distribution and generation assets located in California("Transaction"); WHEREAS, on October 16, 2009, Sierra and CalPeco filed with the California Public Utilities Commission("Commission") a Joint Application for Transfer of Control and Additional Requests Relating to Proposed Transaction (Application. 09-10-028) ('Application"), in which they requested authorization of the Transaction and certain matters related thereto; WHEREAS, on November 23, 2009, TDPUD filed with the Commission a Protest ("Protest') to the Application, in which it made claims related to Sierra, CalPeco, and the Transaction; WHEREAS, on January 19, 2010, the parties executed a term sheet C'Term Sheet') outlining the principal terms and conditions to be memorialized in this Agreement and in which they agreed to negotiate in good faith with the intent to execute a binding settlement agreement by no later than February 16, 2010; and WHEREAS, the parties desire to enter into this Agreement in accordance with and on the schedule agreed to in the Term Sheet and for the purpose of resolving the claims made by TDPUD in the Protest, upon the terms and conditions set forth in this Agreement. In consideration of the representations, warranties and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Settlement; Withdrawal of Protest. TDPUD agrees that this Agreement settles and resolves any and all claims made by TDPUD in the Protest. Within five business days of the execution of this Agreement by all Parties, TDPUD will file a pleading with the Commission to withdraw the Protest in the Application, and in such pleading express its affirmative support for the Transaction and the Application. Prior to making such filing, TDPUD shall provide CalPeco and Sierra a reasonable opportunity to review and comment upon such filing. 2. FERC Proceedings. Sierra and CalPeco will file a joint application to the Federal Energy Regulatory Commission ("FERC') under Section 203 of the Federal Power Act seeking authorization for the Transaction(the '203 Application'). Sierra and CalPeco agree that in the 203 Application, they will describe this Agreement and the respective obligations undertaken by DWT 14042692v 1 0089731-000002 EXECUTION COPY the Parties pursuant to it, including the Glenshire System Adjustments described in Section 3 below. TDPUD may intervene in the proceedings at FERC for authorization of the 203 Application; provided, however, that TDPUD agrees that it will not protest the 203 Application or the related filings made by Sierra or CalPeco for FERC authorization of the Transaction unless (a) the description of the respective obligations included in the 203 Application does not accurately reflect the terms of this Agreement, and/or (b) the 203 Application raises any new issues that are materially different than the issues raised in the Application or this Agreement. 3. Glenshire System Adjustments(Glenshire Meter). Sierra will, at its own expense, install facilities that directly feed TDPUD's Glenshire Meter from transmission facilities that Sierra will retain after the Closing (as defined in the APA) and which are not being sold to CalPeco in the Transaction. Sierra will satisfy its obligation under this Section 3 by completing the following actions (collectively, the "Glenshire System Adjustments"): (a) installing a new line segment on Sierra's 14.4 kV line that enables the portion of its existing 14.4 kV line that serves certain Sierra customers in Martis Valley to be fed directly from the Truckee Substation without utilizing the portion of the existing 14.4 kV line that serves the Glenshire area; (b) mounting an electronic recloser(or breaker) in the Truckee Substation that ties to Sierra's substation SCADA system, which will serve to the Glenshire area and TDPUD's Point of Receipt and which will able to be operated from the SCADA system and Sierra's dispatch center in Reno,Nevada; (c) installing line spacers so that Sierra's 14.4 kV line does not contact the 60 kV 608 Line (located just south of the Glenshire Meter) during windy conditions; (d) installing a normally-open switch at a location between the Glenshire Meter and the Glenshire Substation, which will be motor operated and which will be operated from Sierra's dispatch center in Reno,Nevada; and (e) converting the normally-open 14.4 kV switch between the Glenshire Meter and Truckee Substation into a normally-closed, motor-operated switch that can be operated from Sierra's dispatch center in Reno,Nevada. The Glenshire System Adjustments described above are illustrated on the one-line diagram that is attached to this Agreement as Exhibit "A". Because the Glenshire System Adjustments will require installing a larger transformer in the Truckee Substation, Sierra will have to obtain certain permits prior to initiating construction of the Glenshire System Adjustments. Sierra will make commercially reasonable efforts to complete the Glenshire System Adjustments by the Closing, provided, however, that if despite its commercially reasonable efforts, Sierra is unable to complete the Glenshire System Adjustments by the Closing, from the date of the Closing until the Glenshire System Adjustments are completed TDPUD will be served at the Glenshire Meter pursuant to the Mutual Assistance Agreement described in Section 4 below. 4. Mutual Assistance Agreement. Sierra, CalPeco and TDPUD will, prior to the Closing, enter into one or more written agreements that address the maintenance of power deliveries under the following conditions: (i) if Sierra's new 14.4 kV line between the Truckee DWT 14042692v 1 0089731-000002 2 EXECUTION COPY Substation and the Glenshire Meter is not yet in service as of the Closing or thereafter is out of service, CalPeco will make its 608 Line and Glenshire 7400 Distribution Circuit available to TDPUD fir purposes of delivering power to TDPUD's facilities; and (ii) when CalPeco's 608 Line or 7400 Distribution Circuit is out of service, Sierra will make its new 14.4 kV line available to CalPeco for purposes of delivering power to CalPeco's facilities. Any temporary use of another party's facilities under such agreements will be at no cost to the party utilizing such facilities under the conditions described in this Section 4. The parties will work together in good faith to timely obtain any regulatory approvals required in connection with such agreements. Nothing in this provision is intended to subject TDPUD to the jurisdiction of the CPUC. 5. Primary Meter (Juniper Hills. TDPUD will (at TDPUD's cost) replace Sierra's existing Juniper Hills primary meter with a meter owned by TDPUD effective as of Closing. TDPUD will own this meter and any pole or other facilities on which it is mounted and CalPeco's distribution facilities will begin one span east of this metering facilities location. 6. Commercial Electric Service (Juniper Hills). Effective as of the Closing, the existing arrangement between Sierra and TDPUD, under which Sierra moves power across the TDPUD system to serve certain Sierra retail customers within its service territory, will terminate. Effective as of the Closing, TDPUD will commence providing electric service to CalPeco pursuant to a written agreement (to be executed by TDPUD and CalPeco prior to the Closing) which shall contain the following terms and conditions: (a) TDPUD will sell power to CalPeco, delivered at the Juniper Hills location, at TDPUD's commercial rate for a load of that size (presently, TDPUD Rate 20), as such rate may change from time to time; provided that CalPeco shall have the full rights of any TDPUD customer to challenge any change in rates or other terms and conditions of service (b) TDPUD will provide CalPeco with a cost estimate of the power sales on an annual basis; (c) CalPeco will have the right to terminate the wholesale electric service agreement for any reason upon 60 days advance written notice to TDPUD; and (d) CalPeco will pay a one-time facilities fee to TDPUD as provided for in the TDPUD application process, which is anticipated to be approximately $4,500 assuming a peak load of approximately 180 kW for this location. 7. Fringe Customer Agreement. Sierra and TDPUD acknowledge that (a) a limited number of retail customers within TDPUD's service territory (located principally in the vicinity of Foxboro Drive, the Strand, and Kent Drive) are currently served by Sierra and its distribution facilities, (b) a limited number of retail customers within Sierra's California service territory are currently served by TDPUD and its distribution facilities, and (c) the Sierra facilities used to serve retail customers within TDPUD's service territory will be sold to CalPeco in the Transaction. To facilitate the continuation of these existing service arrangements after the Closing, Sierra and TDPUD will, within 60 days of the date hereof, execute an agreement (the "Fringe Customer Agreement') that confirms and memorializes the existing service arrangements. Prior to Closing, Sierra will submit the Fringe Customer Agreement to the Commission for approval (effective as of or prior to the Closing) and use commercially reasonable efforts to obtain such approval prior to Closing. TDPUD acknowledges that Sierra intends to assign to CalPeco, and CalPeco intends to assume, the Fringe Customer Agreement effective as of the Closing, and TDPUD consents to such assignment and assumption. Nothing in this provision is intended to (a) subject TDPUD to the jurisdiction of the CPUC, or(b) result DWT 14042692v 1 0089731-000002 3 EXECUTION COPY in a party opening its service territory to retail electric service competition by another party or any third party. 8. Power Sales by Sierra Within Its Balancing Area Authority Sierra will make a filing with the FERC requesting authority for Sierra to make power sales to entities (including TDPUD) within Sierra's Balancing Authority Area (Zone A) from time to time at negotiated rates not to exceed a filed, cost-based cap. This filing may take the form of a general cost-based sales tariff for Sierra or, at Sierra's election, a filing to enable Sierra to make such sales pursuant to the Western Systems Power Pool Agreement. The filing contemplated by this paragraph will be made by Sierra after it prepares an appropriate tariff (if applicable) and rate. Sierra shall attempt in good faith to make this filing on or before July 31, 2010. 9. Reimbursement of CAISO Charges. (a) If scheduled maintenance on Sierra's 607 or 101 Transmission Line makes it impossible for any portion of TDPUD's Network Load to be served through the Zone A transmission system and, as a result, TDPUD incurs incremental charges ("Incremental CAISO Charges") from the CAISO to have the power delivered that would have been delivered through the Zone A transmission system, Sierra will reimburse TDPUD for Incremental CAISO Charges C'Sierra Reimbursement Obli ag tion") in accordance with the provisions of this Section 9, provided, that Sierra shall have no obligation to compensate TDPUD for any CAISO charges TDPUD incurs as a result of an unscheduled outage on these transmission lines. Notwithstanding anything herein to the contrary, the maximum amount of the Sierra Reimbursement Obligation shall not exceed $75,000 in any one Year. For purposes of this Agreement, "Year"means each one-year period (i) initially, commencing on the Closing Date (as defined in the APA) and ending at 11:59 pm Pacific time on the day immediately preceding the first annual anniversary of the Closing Date, and(ii) thereafter, commencing on the applicable annual anniversary of the Closing Date and ending at 11:59 pm Pacific time on the day immediately preceding the first annual anniversary of such commencement date. (b) The Sierra Reimbursement Obligation will become effective upon the Closing and will terminate on the 1 Oth anniversary of the Closing Date. (c) Within six (6) months following the end of each Year, or within sixty (60) days following the receipt by TDPUD from CAISO or TDPUD's CAISO scheduling coordinator, of Incremental CAISO Charges for such Year, whichever occurs later, TDPUD will submit a claim to Sierra evidencing the amount owed to TDPUD for the preceding Year under clause (a) above and provide to Sierra documentation reasonably supporting such claim. If TDPUD fails to timely provide such claim and documentation to Sierra pursuant to this clause (c), TDPUD will be deemed to have waived its right to request such amounts for such Year from Sierra under this Section 9. A claim timely submitted to Sierra will, subject to clause (d) below, be paid by Sierra within 90 days after the date on which Sierra receives such claim and documentation from TDPUD. (d) Sierra may, in good faith, dispute the correctness of any claim for reimbursement submitted by TDPUD under this Section 9. Notwithstanding any dispute, DWT 14042692v 1 0089731-000002 4 EXECUTION COPY the undisputed amount of any such claim shall be reimbursed as invoiced. If Sierra disputes any portion of a claim, Sierra must notify TDPUD in writing of the basis for the dispute within 45 business days after receipt of the claim. If Sierra and TDPUD are not able to resolve such dispute within 30 days after delivery of Sierra's dispute notice, either party may refer such dispute for resolution in accordance with Section 9(e) hereof. Upon resolution of the dispute, any required reimbursement by Sierra shall be made within two business days of such resolution along with interest accrued at then applicable FERC- approved rate from the original due date for payment through and including the date of actual payment. (e) The provisions of this Section 9(e) will govern the resolution any dispute between Sierra and TDPUD arising under Section 9(d) of this Agreement, to the extent such dispute is not resolved by those parties prior to the expiration of the 30-day period by Section 9(d). (i) With respect to any such dispute or claim, the disputing party will provide the other parry with written notice of the dispute or claim (`Notice of Dispute"). Such dispute or claim will be referred to a senior representative of each parry for resolution on an informal basis as promptly as practicable after receipt of the Notice of Dispute by the other party. If designated representatives are unable to resolve the claim or dispute through unassisted or assisted negotiations within 30 days following receipt of the Notice of Dispute, such claim or dispute will be submitted to mediation and resolved in accordance with the mediation procedures set forth below. (ii) The parties agree to mediate any dispute or claim arising between them out of this Agreement before resorting to court action. The parties shall use their best good faith efforts to complete the mediation with sixty (60) days of the date that a party makes a written request to the other party(s) to mediate. Mediation fees, if any, shall be divided equally among the parties involved. Other than mediation fees, Sierra and TDPUD will each be responsible for its own costs incurred during the mediation process. The mediation shall be conducted in Reno, Nevada, unless the parties agree to conduct it in a different location. The mediator chosen shall be knowledgeable in electric utility matters and will not have any current or past substantial business or financial relationships with any disputing parry. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation or refuses to mediate after a written request has been nade, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. (iii) Should Sierra and TDPUD be unable to resolve the dispute through mediation, they will be free to file an action in any court with jurisdiction to adjudicate the dispute. 10. Scheduling (Transmission Outages). Sierra will not schedule any outages on its 607 or 101 Transmission Line before May 1, 2010, provided that Sierra may schedule one or DWT 14042692v1 0089731-000002 5 EXECUTION COPY more outages if Sierra deems it necessary to avoid damage to the affected transmission line. Sierra will at all times use commercially reasonable efforts to coordinate the scheduling of outages on its 607 and 101 Transmission Lines with TDPUD's scheduling of maintenance on its system with the intention of minimizing the incurrence of CAISO charges by TDPUD. In order to accomplish this coordination, TDPUD and Sierra shall each notify the other of their respective scheduled work. 11. Right of Way (Water Line). Sierra will review its land records to determine if it is entitled or permitted to grant TDPUD a water easement (or other right-of-way) from Stallion Way in the Glenshire area to a point near Hirschdale along one of the routes illustrated in maps (named "WaterEasement#1", "WaterEasement#3", or "WaterEasement#2", in that order of preference) previously exchanged by Sierra and TDPUD. If Sierra is entitled or permitted to grant TDPUD such an easement or other right-of-way, Sierra will make such grant, of the broadest possible rights for TDPUD purposes, at no charge to TDPUD; provided that TDPUD will reimburse Sierra for any out-of-pocket expenses incurred by Sierra to grant and administer such easement or right-of-way (including recording fees). The actions contemplated by this paragraph will be completed at or prior to the Closing. 12. Representations and Warranties. Each party hereby represents and warrants to the other parties that(a) it has the power and authority to execute and deliver this Agreement, and to perform its obligations under this Agreement; (b) upon the execution and delivery hereof, this Agreement will be a valid, binding and enforceable upon it in accordance with its terms and conditions, except as enforceability may be limited by bankruptcy and similar laws affecting or relating to general principles of equity; and (c) its duly-authorized officers, managers or representatives have executed this Agreement on its behalf. 13. Entire Agreement. This Agreement will not be a valid and binding agreement unless it is fully executed and delivered by all parties, and no legal obligation will be created by virtue hereof until such execution and delivery. This Agreement embodies the entire agreement and understanding of the parties in respect of the subject matter hereof, and supersedes all prior discussions, understandings and agreements (including the Term Sheet) relating to the subject matter of this Agreement. There are no restrictions, promises, representations, warranties, covenants, or undertakings in respect of the agreements contemplated hereby, except as expressly set forth herein. 14. No Admission or Precedent. Nothing in this Settlement Agreement shall constitute an admission of liability by any party or of the validity or applicability of any claim, defense, rule, or interpretation of law. All parties deny any such liability or validity. Nothing in this Settlement Agreement shall resolve any principle or establish any precedent or settled practice. 15. Effective Date; Termination of Agreements, Rights and Obligations. This Agreement will be effective as of the date first written above. Notwithstanding anything herein to the contrary, in the event the Transaction is not closed, by reason of termination of the APA or otherwise, the agreements, rights and obligations set forth herein, other than the obligations imposed on Sierra in Section 8, will terminate and have no force and effect. DWT 14042692v 1 0089731-000002 6 EXECUTION COPY 16. Regulatory Support In the event any party is actively pursuing a regulatory approval required to effect or implement this Agreement or an agreement or action contemplated hereby, the other parties (or, with respect to agreements or actions involving only two of the parties, the other party) will reasonably cooperate and support such proceeding and not contest or protest such proceeding. Nothing in this provision is intended to subject TDPUD to the jurisdiction of the CPUC. 17. Miscellaneous. (a) This Agreement will be binding upon and will inure to the benefit of each party, and to its respective heirs, successors, executors, administrators and assigns. This Agreement may be executed simultaneously in one or more counterparts, including facsimile or PDF counterparts, each of which will be deemed an original but all of which together will constitute one and the same instrument. (b) This Agreement (as well as any claim or controversy arising out of or relating to this Agreement) will be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of laws rules thereof that would otherwise require the laws of another jurisdiction to apply. Subject to the alternative dispute resolution procedures set forth in Section 9(e), each party irrevocably submits to the exclusive jurisdiction of the federal and state courts located in the State of California, waives any objection which it may have to the laying of venue of any proceedings brought in any such court, and waives any claim that such proceedings have been brought in an inconvenient forum. (c) Any notice provided pursuant to this Agreement shall be provided in writing and sent to the address indicated below (or at such other address as a party may specify, provided that notices of a change of address will be effective only upon receipt thereof): if to Sierra: Sierra Pacific Power Company c/o NV Energy Attn: Office of the General Counsel 6226 West Sahara Avenue Las Vegas,Nevada 89146 Fax: (702) 402-2069 with a copy to: Sierra Pacific Power Company Attn: Christopher A. Hilen 6100 Neil Road Reno,Nevada 89520-3150 Fax: (775) 834-4811 DWT 14042692v 1 0089731-000002 7 EXECUTION COPY if to CalPeco: California Pacific Electric Company, LLC c/o Algonquin Power&Utilities Corp. Attn: President 2845 Bristol Circle Oakville, Ontario, Canada L6H 7H7 Fax: (905) 465-4514 with a copy to: Emera Incorporated Attn: Corporate Secretary 1894 Barrington Street Halifax,Nova Scotia B3J 2A8 Fax: (902) 428-6171 with a copy to: Davis Wright Tremaine LLP Attn: Steven F. Greenwald 505 Montgomery Street, Suite 800 San Francisco, CA 94111 Fax: (415) 276-6599 if to TDPUD: Truckee-Donner Public Utility District Attn: General Manager P.O. Box 309 Truckee, California 96160 Fax: (530) 587-1189 with a copy to: Porter Simon Attn: Steven C. Gross 40200 Truckee Airport Road, Suite One Truckee,California 96161 Fax: (530) 587-1316 (d) The parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as jointly drafted by the parties hereto and no DWT 14042692v 1 0089731-000002 8 EXECUTION COPY presumption or burden of proof favoring or disfavoring any party will exist or arise by virtue of the authorship of any provision of this Agreement. Furthermore, this Agreement, unless a clear contrary intention appears, will be construed and interpreted as follows: (i)the singular number includes the plural number and vice versa; (ii)reference to any party includes such party's successors and assigns; (iii) "hereunder," hereof," "herein," "hereto" and words of similar import will be deemed references to this Agreement as a whole and not to any particular Section or other provision hereof; (iv) "including" (and with correlative meaning "include') means including without limiting the generality of any description preceding such term. (e) This Agreement is not intended to and does not create rights, remedies, or benefits of any character whatsoever in favor of any party other than the parties to this Agreement, and the obligations herein assumed are solely for the use end benefit of the parties to this Agreement. (0 Each party will, subject to Section 9(e) in the case of Sierra and TDPUD, be responsible for its own costs and expenses incurred during the negotiation and performance of this Agreement. [Remainder of this page intentionally left blank; Signature page follows immediately below] DWT 140426920 0089731-000002 9 F,xEcurION COPY IN WITNESS WHEREOF, the patties luive executed this Agreement as of the date first written above. SIERRA APA ' IC POWER COMPANY TR UCKEE,-DONNER PUBLIC TJTILITV d/1�Ia N YGY DISTRICT By: Nance: Roberto R.Denis Name: Jeff Bemder - Title: Senior Vice President—Energy Title: Board President Delivery CALIFORNIA PACIFIC;ELECTRIC COMPANY, LLC 13y: Catilornia.Pace:- fility Ventures, LLC, Its:Sole NZembef ,...�...,.._.. -- By• _ �; ----�-�-----��-- Title: aana�eplvli [Signature page to Settlement Agreement] EXECUTION COPY IN WITNESS WHEREOF,the parties have executed this Agreement as of the date first written above. SIERRA PACIFIC POWER COMPANY TRUCKEE-DONNER PUBLIC UTILITY d/b/a NV ENERGY DI&. 1dent By: EName:Roberto R,Denis NTitle:Senior Vice President--Energy T Delivery CALIFORNIA PACIFIC ELECTRIC COMPANY,LLC By:California Paci tility Ventures,LLC, Its:Sale Mem By: Name: J0114 Title; ana . .............................. ..... .... .. . [Signature page to Settlement Agreement] Exhibit"A" One Line Diagram Illustrating Glenshire System Adjustments TDPUD Glenshire Interconnection Project 608 Line 60kV ,. ..................... 7400 Underbuilt on the 608 Line 14.4kV R ; Glenshire Sub _; 14.4 kV Primary Meter � •- -••• -•� -� l l Primary Meter c • Y 7203 . -Y- �TDPUD Truckee Sub i Ownership Existing CalPeco Future Upgrade Facility — TDPUD Existing to be Removed NV Energy EXECUTION COPY FRINGE AGREEMENT FOR ELECTRIC SERVICE BETWEEN SIERRA PACIFIC POWER COMPANY AND TRUCKEE-DONNER PUBLIC UTILITY DISTRICT THIS FRINGE AGREEMENT FOR ELECTRIC SERVICE (this "Agreement") is made as of the?t h day of A.pr_i 12010, by and between SIERRA PACIFIC POWER COMPANY, a Nevada corporation d/b/a SIERRA ("Sierra"), and TRUCKEE-DONNER PUBLIC UTILITY DISTRICT, a public utility district created and existing under the Public Utility District Act, Division of Public Utilities Code of the State of California ("TDPUD"). Sierra and TDPUD are herein referred to individually as a"Utili ' and, collectively, the"Utilities". WHEREAS, each Utility owns and operates an electric distribution system in California, and portions of their respective service territories are contiguous; WHEREAS, Sierra uses its distribution facilities to provide electric distribution service to certain retail customers located within TDPUD's service territory near the Utilities' system border, and TDPUD uses its distribution facilities to provide electric distribution service to certain retail customers located within Sierra's franchised service territory near the Utilities' system border (each such retail electric customer, whether served by Sierra or TDPUD, is herein referred to as a "Fringe Customer"); and WHEREAS, to further recognize that the aforementioned arrangements facilitate the provision of cost-effective electric distribution service to Fringe Customers, the Utilities desire to enter into this Agreement for the purpose of memorializing the terms and conditions upon which they each provide(and will continue to provide) electric distribution service to Fringe Customers. NOW THEREFORE, in consideration of the representations, warranties, covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the Utilities agree as follows: ARTICLE I DEFINITIONS 1.1 Definitions. As used in this Agreement, the following terms have the meaning specified below: "Agreement"has the meaning set forth in the introductory paragraph hereof. "APA" means that certain Asset Purchase Agreement dated April 22, 2009, by and between Sierra and CalPeco, as amended or supplemented from time to time. "CalPeco"means California Pacific Electric Company, LLC. "Closing"means the closing of the asset sale transaction contemplated by the APA. "CPUC"means the California Public Utilities Commission or any successor organization. "Fringe Customer" has the meaning set forth in the second recital hereof. Additional information relating to Fringe Customers is provided on Schedule"A" attached hereto. 1 EXECUTION COPY "Good Utility Practice" means practices, methods, standards, guides, and acts that are generally accepted in the electric utility industry or commonly used in prudent utility operations. Good Utility Practice is not limited to the optimum practices, methods, standards, guides or acts to the exclusion of all others. "Governmental Entity" means the United States of America and any other federal, state or local governmental or regulatory authority, department, agency, commission, body, court, or other governmental entity. "Law" means any statutes, regulations, rules, ordinances, codes, and similar acts or promulgations of any Governmental Entity, and any order, judgment, writ, injunction, decree, directive, or award of a court, administrative judge, or other Governmental Entity acting in an adjudicative or regulatory capacity, with jurisdiction over the subject matter. "Noticed Termination Date" means, in the event the Utilities have provided all of the termination notices required by Section 4.2 to effectively terminate all arrangements contemplated by this Agreement (i.e., each Utility will cease to be a Serving Utility), the last date upon which Fringe Customers are served under this Agreement. The day immediately after the Noticed Termination Date will mark the first day upon which neither Utility will have any (a) right or obligation to serve any customer located in the other Utility's service territory under this Agreement, or(b) right to have any customer located within its service territory served by the other Utility under this Agreement. "Rate" means, with respect to any Fringe Customer, the rate charged or to be charged, as applicable, by the Serving Utility in accordance with Section 2.2 for the provision of electric distribution service under this Agreement. "Serving Utility"means (a) with respect to Fringe Customers served by Sierra, Sierra, and(b) with respect to Fringe Customers served by TDPUD, TDPUD. ARTICLE II ELECTRIC DISTRIBUTION SERVICE; RATES 2.1 Electric Distribution Service. (a) During the term of this Agreement, each Serving Utility will provide electric distribution service to its Fringe Customers (as set forth on Schedule "A" attached hereto) upon the terms and conditions set forth in this Agreement. The provision of electric distribution service under this Agreement includes the provision of electrical energy. (b) Each Serving Utility will provide electrical energy to the Fringe Customers in such quantities as such Fringe Customers may require. The facilities used by a Serving Utility to serve Fringe Customers will be owned and possessed by the Serving Utility. Each Serving Utility will (i) make changes in, and additions to, its existing distribution facilities as are necessary to furnish electrical energy to its Fringe Customers, and (ii) retain ownership and possession of, and maintain at its own cost and expense, all such additions and changes. Each Serving Utility will provide electrical energy to Fringe Customers at customer meters. 2.2 Rates. Rates will be determined by the Serving Utility based upon retail customer classification, and Rates will be the same as the rates payable by similarly-classified electric retail 2 EXECUTION COPY customers located within the Serving Utility's service territory who are not Fringe Customers. Rates will be determined (a) with respect to Fringe Customers served by Sierra, in accordance with rate tariffs and policies authorized by the CPUC, as such tariffs and policies may be adjusted or modified from time to time, and (b) with respect to Fringe Customers served by TDPUD, in accordance with rates and policies authorized by the TDPUD Board of Directors, as such tariffs and policies may be adjusted or modified from time to time. ARTICLE III REPRESENTATIONS & GENERAL UNDERTAKINGS 3.1 Representations. Each Utility represents and warrants to the other Utility that (a) it has the power and authority to execute and deliver this Agreement and, subject to Sierra's receipt of the CPUC approval contemplated by Section 4.1 hereof, to perform its obligations under this Agreement; (b) upon the execution and delivery hereof, this Agreement will be valid, binding and enforceable upon it in accordance with the terms and conditions set forth herein, except as enforceability may be limited by bankruptcy and similar laws affecting or relating to general principles of equity; and (c) its duly-authorized officers, managers or representatives have executed this Agreement on its behalf. 3.2 Regulation. Nothing in this Agreement amends, terminates, diminishes or otherwise alters a Utility's statutory obligation to provide electric distribution service to Fringe Customers located within its service territory, or the boundaries of any Utility's service territory. Notwithstanding the foregoing, it is the intention of the Utilities that, to the fullest extent permitted by Law, (a) the costs incurred by a Serving Utility to provide electric distribution service to Fringe Customers under this Agreement will be recovered in rates by the Serving Utility, (b) with respect to each Serving Utility, the revenue derived from its Fringe Customers will be allocated to the costs incurred by the Serving Utility to serve its Fringe Customers, and (c) Fringe Customers will, for all other regulatory purposes,be treated as customers of the applicable Serving Utility. 3.3 Compliance with Law. The obligations of each Utility under this Agreement are, and the performance of any such obligation hereunder is, subject to applicable Law, including the receipt of approvals from Governmental Entities, if any, required to amend, supplement, terminate or otherwise modify the terms and conditions of this Agreement. 3.4 System Operation and Maintenance. Each Utility will operate and maintain its electric system in accordance with Good Utility Practice. Subject to the foregoing, each Serving Utility will (at its own cost and expense) use reasonable diligence in the operation and maintenance of the facilities used to provide electric distribution service to Fringe Customers. 3.5 Title. Each Utility recognizes the other Utility's title and interest in the respective facilities described in, this Agreement, and agrees not to exercise any powers of condemnation, eminent domain or similar powers or rights available to it under Law in an effort to seize or otherwise obtain title of the other Utility's respective facilities used to provide electric service to a Fringe Customer under this Agreement. 3 EXECUTION COPY ARTICLE IV TERM; TERMINATION 4.1 Term. The term of this Agreement will commence on the date upon which Sierra becomes authorized by the CPUC (as described in the next sentence) to perform its obligations under this Agreement, and will continue until 11:59 p.m. Pacific time on the earlier of the Noticed Termination Date and the date upon which the Utilities mutually agree to terminate this Agreement. This Agreement is subject to and conditioned upon Sierra's receipt of a CPUC order or other approval authorizing Sierra to perform its obligations hereunder and to be eligible to receive rate recovery for serving Fringe Customers under this Agreement in accordance with the CPUC's ratemaking rules and practices. TDPUD will reasonably cooperate and work with Sierra in good faith to timely obtain such CPUC authorization. 4.2 Termination. (a) Either Utility may, upon at least 15 months prior written notice to the other Utility, terminate its right and obligation to serve all (but not less than all) of the Fringe Customers located within the other Utility's service territory. A termination notice provided pursuant to this Section 4.2(a) will provide the date on which the notifying Utility will cease to provide electric distribution service to all of the Fringe Customers located within the other Utility's service territory. In the event a termination notice is validly provided pursuant to this Section 4.2(a), the notifying Utility's right and obligation to serve Fringe Customers under this Agreement will terminate at 11:59 p.m. Pacific time on the termination date provided in the termination notice. Neither the delivery of a termination notice by a Utility pursuant to this Section 4.2(a), nor the resulting extinguishment of the notifying Utility's right and obligation to serve Fringe Customers under this Agreement, shall,by itself, alter or otherwise affect the right and obligation of the notified Utility to continue to serve Fringe Customers located within the notifying Utility's service territory. (b) Either Utility may, upon at least 15 months prior written notice to the other Utility, terminate the right and obligation of the other Utility under this Agreement to serve all (but not less than all) of the Fringe Customers located within the notifying Utility's service territory. A termination notice provided pursuant to this Section 4.2(b) will provide the date on which the notified Utility will cease to provide electric distribution service to all of the Fringe Customers located within the notifying Utility's service territory. In the event a termination notice is validly provided pursuant to this Section 4.2(b), the notified Utility's right and obligation to serve Fringe Customers under this Agreement will terminate at 11:59 p.m. Pacific time on the termination date provided in the termination notice. Neither the delivery of a termination notice by a Utility pursuant to this Section 4.2(b), nor the resulting extinguishment of the other Utility's right and obligation to serve Fringe Customers under this Agreement, shall, by itself, alter or otherwise affect the right and obligation of the notifying Utility to continue to serve Fringe Customers located within the notified Utility's service territory. ARTICLE V BREACH OF AGREEMENT A Serving Utility shall be deemed to be in breach or default of this Agreement when it(a)has the ability to provide electric service to Fringe Customers in accordance with the terms of this Agreement, and (b) fails or refuses to provide such electric service (a "Breach"). Notwithstanding the foregoing, so long as a Serving Utility is acting in accordance with Good Utility Practice, an 4 EXECUTION COPY inability to provide continuous electric service to the Fringe Customers under the terms of this Agreement shall not be deemed a breach or default under this Agreement. ARTICLE VI CONSENT AND WAIVER OF CLAIMS Each Utility consents to the Serving Utility's provision of electric distribution service to Fringe Customers under the terms and conditions of this Agreement and each Utility hereby expressly waives any possible claims in law or in equity, in civil court or before a regulatory agency against the Serving Utility that the Utility may have by virtue of such Serving Utility providing electric distribution service to Fringe Customers in the Utility's service territory, provided, however, that nothing in this Article VI shall (a) constitute a waiver by a Utility of its right to object to a Serving Utility's rights with respect to customers other than Fringe Customers within a Utility's service territory, or (b) grant a Serving Utility any rights with respect to customers in the Utility's service territory other than the rights to serve Fringe Customers under the terms of this Agreement. In addition, nothing in this Agreement is intended to result in a Utility opening its service territory to retail electric service competition by another Utility or any third party. ARTICLE VII INDEMNIFICATION; SPECIFIC PERFORMANCE; WAIVER OF CONSEQUENTIAL DAMAGES 7.1 Indemnification. Each Serving Utility will indemnify the other Utility and save it harmless from all losses, liabilities or claims, including reasonable attorneys' fees and court costs, from any and all persons arising from or out of claims of personal injury (including death) or property damage from the Serving Utility's performance (or non-performance) of its obligations hereunder, including any losses, liabilities or claims made by a Fringe Customer against the other Utility arising from damages incurred by such Fringe Customer in connection with the Serving Utility's provision of, or failure to provide, electric service to such Fringe Customer under the terms of this Agreement, except to the extent that such losses, liabilities or claims were caused by the negligence or intentional acts of the other Utility. 7.2 Specific Performance; Attorneys' Fees. The Utilities expressly agree that a Breach of this Agreement by either Utility will cause irreparable harm to the non-breaching Utility for which damages would not be an adequate remedy and therefore, the non-breaching Utility will, in addition to any other rights and remedies available hereunder or at Law, have the right to enforce this Agreement by obtaining an order compelling specific performance of the breaching Utility's obligations to serve Fringe Customers under this Agreement. If either Utility institutes legal proceedings to enforce this Agreement, the prevailing Utility will be entitled to recover all reasonable costs incurred by such Utility(including reasonable attorneys' fees) in addition to any other relief to which such Utility may be entitled. EACH UTILITY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF A CLAIM FOR SPECIFIC PERFORMANCE BROUGHT BY A UTILITY PURSUANT TO THIS SECTION 7.2. 7.3 Waiver of Consequential Damages. Notwithstanding any other provision of this Agreement, in no event will a Serving Utility be liable to the other Utility, whether in contract, warranty, tort, negligence, strict liability, or otherwise, for special, indirect, incidental, consequential (including lost profits or revenues, business interruption damages and lost business opportunities), 5 EXECUTION COPY exemplary or punitive damages related to, arising out of, or resulting from performance or non- performance of this Agreement. With respect to a Serving Utility, the limitation on damages under this Section 7.3 will not apply with respect to claims brought by third persons for which the other Utility is entitled to indemnification under this Agreement. ARTICLE VIII MISCELLANEOUS 8.1 Binding Effect; Assignment. This Agreement will be binding upon and will inure to the benefit of each Utility's permitted successors and assigns. This Agreement may not be assigned by any Utility without the other Utility's prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), and an assignment of this Agreement will not relieve the assigning Utility of its obligations and liabilities hereunder. Notwithstanding the foregoing, (a) TDPUD consents to the assignment of this Agreement by Sierra to CalPeco, and the assumption of Sierra's obligations by CalPeco, concurrently with or following the Closing; (b) without any further action required by the Utilities, upon such assignment and assumption, TDPUD releases Sierra from liabilities arising under this Agreement from and after such assignment and assumption; and(c) upon the assignment and assumption contemplated under clause (a) above, TDPUD consents to CalPeco's assignment of this Agreement for collateral security purposes to aid in providing financing for the acquisition contemplated by the APA. 8.2 Governing Law; Venue. This Agreement(including any claim or controversy arising out of or relating to this Agreement) will be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of laws rules. Subject to the alternative dispute resolutions procedures set forth in Section 8.3, each Utility irrevocably submits to the exclusive jurisdiction of the federal and state courts located in the State of California, waives any objection which it may have to the laying of venue of any proceedings brought in any such court, and waives any claim that such proceedings have been brought in an inconvenient forum. The Utilities agree that any and all claims, controversies or disputes arising from or relating to this Agreement will be submitted to federal or state courts located in California for resolution. 8.3 Mediation. The Utilities agree to mediate any dispute or claim arising between them out of this Agreement before resorting to court action. The Utilities shall use their best good faith efforts to complete the mediation with sixty(60) days of the date that a party makes a written request to the other party(s) to mediate. Mediation fees, if any, shall be divided equally among the parties involved. Other than mediation fees, Sierra and TDPUD will each be responsible for its own costs incurred during the mediation process. The mediation shall be conducted in Reno, Nevada, unless the parties agree to conduct it in a different location. The mediator chosen shall be knowledgeable in electric utility matters and will not have any current or past substantial business or financial relationships with any disputing party. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation or refuses to mediate after a written request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. Should Sierra and TDPUD be unable to resolve the dispute through mediation, they will be free to file an action in any court with jurisdiction to adjudicate the dispute. Notwithstanding the foregoing, a claim by a Utility for specific performance under Section 7.2 shall not be subject to the mediation procedures and requirements set forth in this Section 8.3. 6 EXECUTION COPY 8.4 Notices. Written notice provided under this Agreement should be sent to address indicated below (or at such other address as a Utility may specify, provided that notices of a change of address will be effective only upon receipt thereof): (a) TO SIERRA: Sierra Pacific Power Company Attn: Office of the General Counsel 6226 West Sahara Avenue Las Vegas,Nevada 89146 Fax: (702) 402-2069 with a copy to: Sierra Pacific Power Company Attn: Christopher A. Hilen 6100 Neil Road Reno,Nevada 89520-3150 Fax: (775) 834-4811 (b) TO TDPUD: Truckee-Donner Public Utility District Attn: General Manager P.O. Box 309 Truckee, California 96160 Fax: (530) 587-1189 with a copy to: Porter Simon Attn: Steven C. Gross 40200 Truckee Airport Road, Suite One Truckee, California 96161 Fax: (530) 587-1316 8.5 Rules of Interpretation. Unless a clear contrary intention appears, this Agreement will be construed and interpreted as follows: (a)the singular number includes the plural number and vice versa; (b)reference to any person includes such person's permitted successors and assigns; (c)reference to any agreement (including this Agreement), document, instrument or tariff means such agreement, document, instrument or tariff as amended or modified and in effect from time to time in accordance with the terms thereof, (d)reference to any Law means such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time; (e)"hereunder," hereof," "herein," "hereto" and words of similar import will be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof or thereof, (f) "including" (and with correlative meaning "include") means including without limiting the generality of any description preceding such term; and(g) Schedule"A"to this Agreement is hereby incorporated and made a part hereof as if set forth in full herein and is an integral part of this Agreement. 7 EXECUTION COPY 8.6 Entire Agreement. This Agreement constitutes the entire agreement between the Utilities with reference to the subject matter hereof, and supersedes all prior and contemporaneous understandings or agreements, oral or written, between the Utilities with respect to the subject matter of this Agreement. Nothing in this Agreement modifies, supersedes, or otherwise alters any other agreements between the Utilities. 8.7 No Third Party Beneficiaries. This Agreement is not intended to and does not create rights, remedies, or benefits of any character whatsoever in favor of any person or party other than the Utilities, and the obligations herein assumed are solely for the use end benefit of the Utilities and their permitted successors and assigns. 8.8 Amendment; Counte artarts. The Utilities may by mutual agreement amend this Agreement by a written instrument duly executed by both Utilities. This Agreement may be executed in multiple counterparts (each of which will be deemed an original, but all of which together will constitute one and the same instrument), and may be delivered by facsimile or email transmission. Remainder of Page Intentionally Left Blank 8 EXECUTION COPY IN WITNESS WHEREOF, the parties below have executed this Agreement effective as of the date first set forth above. SIERRA PACIFIC POWER COMPANY d/b/a NV ENERGY By: Name: Kevin Bethel Title: Interim Chief Financial Officer and Chief Accounting Officer TRUCKEE-DONNER PUBLIC UTILITY DISTRICT By: Name: Jeff Bender Title: Board President {Signature Page to Fringe Agreement For Electric Service) 9 EXECUTION COPY Schedule"A" and Schedule "A" Map A-1 EXECUTION COPY Schedule "A" to Fringe Agreement for Electric Service Between Sierra Pacific Power Company and Truckee-Donner Public Utility District Part I. Fringe Customers Served by Sierra Parcel Number Customer Address Classification In-Service 4822001 15260 Old Highway 40 Residential Improved 4822005 *NO SITE ADDRESS* Residential Unimproved 4822007 15260 Old Highway 40 Residential Unimproved 4822015 *NO SITE ADDRESS* Residential Unimproved 4911001 14674 Foxboro Drive Residential Improved 4911002 14802 Foxboro Drive Residential Improved 4911003 14954 Foxboro Drive Residential Improved 4911011 11422 Coldwater Road Residential Improved 4912001 14675 Foxboro Drive Residential Unimproved 4912002 14773 Foxboro Drive Residential Unimproved 4912003 14901 Foxboro Drive Residential Unimproved 4912011 15053 Foxboro Drive Residential Improved Part II. Fringe Customers Served by TDPUD Parcel Number Customer Address Classification In-Service 4002010 15318 Glenshire Drive Residential Improved 4002023 15284 Glenshire Drive Residential Improved 4016001 10065 The Strand Residential Improved 4016002 10085 The Strand Residential Improved 4016003 10105 The Strand Residential Improved 4016004 10125 The Strand Residential Improved 4016005 10145 The Strand Residential Improved 4016006 10165 The Strand Residential Improved 4017006 10265 The Strand Residential Improved 4017009 10205 The Strand Residential Unimproved 4017010 10185 The Strand Residential Improved 4017024 10245 The Strand Residential Improved 4017026 10225 The Strand Residential Improved 4924005 10312 The Strand Residential Unimproved 4924006 15358 Donnington Lane Residential Unimproved 4924007 15396 Donnington Lane Residential Unimproved EXECUTION COPY Part II. (continued) Fringe Customers Served by TDPUD 4924027 10311 The Strand Residential Improved 4924029 15396 Kent Drive Residential Improved 4924033 15375 Kent Drive Residential Unimproved 4924034 15419 Kent Drive Residential Improved 4924035 15245 Kent Drive Residential Improved 4924036 10343 The Strand Residential Improved 4924037 10513 The Strand Residential Improved 4924040 15430 Kent Drive Residential Unimproved 4924041 15444 Kent Drive Residential Improved 4924042 15458 Kent Drive Residential Unimproved 4924043 15291 Kent Drive Residential Improved 4924044 15303 Kent Drive Residential Unimproved 4924045 15315 Kent Drive Residential Unimproved 4924046 15500 Kent Drive Residential Unimproved 4924047 15516 Kent Drive Residential Unimproved 4924048 15522 Kent Drive Residential Improved 4924049 15473 Kent Drive Residential Improved 4924050 *NO SITE ADDRESS* Residential Unimproved 4924051 15538 Kent Drive Residential Unimproved 4924052 *NO SITE ADDRESS* Residential Unimproved 4924053 *NO SITE ADDRESS* Residential Unimproved N/A 15306 Kent Drive Residential Unimproved N/A 15306 Kent Drive Residential Unimproved * Note: For purposes of this Agreement, "Fringe Customers" will include any retail electric customers that in the future receive electric service within this real estate parcel numbers. These parcels are undeveloped as of the date of this Agreement; nevertheless,the Utilities agree that any retail electric customers ultimately served on such properties will be served as Fringe Customers under this Agreement. For purposes of this Agreement, the obligation to serve "Fringe Customers"shall extend to any customer using electricity on (a) any of the identified parcels in the future and (b) any parcels that are created in the future from any of the identified parcels, whether through subdivision or otherwise. i i Parcels Served Fringe Parcels Serviced by TDPUD i Fringe Parcels Serviced by Sierra SEC 8 T17N R17E SEC 5 SEC 32 T18N �r•r" u: RoyaLWa F/ T 17 N •a or R17E I r Sfuart.3gltha �3 ♦fad' - ' q 41„n, �_odogan,3 a 49 j •p i b S` • 1 r 0 eu QG„p /4•p/ . •� AllanbyJNsy �♦ r 1 4924005 4924006 0pll3 I,-�•l0y 4924037..E 2403a o c� S S SA016001 �lG ,` n ggq7Q,t ��. 4a1io3s- 4AI400]'5I�113^ O ffi U R g.I o ���� A B`o?�G7` 'Q Cp�liCFRO d 4970py3 4924 Huntsman 8/nc I ` 192i076 /alr3 Z.. a _ kham Wa Mtyp y 3 i Cj o w 3 4924033 ..-- I � _ labumham.Cir_p ` 't3pa V s9240N t .+• 'g Ea tboume Ct _Laburnham.Cir "a924oae ,ag24M6 Y 4BY4050 je"49210/7 o ave"I DorehsstscD O 4924052� �T Y ! f URna t ri//jO `��r SE 4 !491493�( 5„�� SEC 3 "� SEC 28 %.mad SEC 9 �--�� •y T17N T17 ' T1 f T1 R17E E ./ , tia Of e.h.� e•,� 7E ,, R17E C O .Balfour•Rch o a s•Pt t,c it t �Q3 tnt 3• i,} hoc __ � 8t �,r 1 u / c�'7 y9/ 4• IIy1nJ •na Ln P � Haverr4Hl1 TRUCKEE DONNER PUBLIC UTILITY DISTRICT ° TRIJe,KF,E r.e--as .,W DO NF.R" �,oY �—•,� ter/ .LanFn-�"c � ..,, ,�" Schedule'A'Map ��r M S.Murphy Fringe Agreement c S.Murphy V arm. yam Mr1"equak 1.000'.nw Electric Draft Dated March 11, 2010 RELIABILITY SUPPORT AGREEMENT AMONG SIERRA PACIFIC POWER COMPANY, CALIFORNIA PACIFIC ELECTRIC COMPANY, LLC AND TRUCKEE-DONNER PUBLIC UTILITY DISTRICT THIS RELIABILITY SUPPORT AGREEMENT (this "Agreement") is made and entered into as of March [_1, 2010 (the"Effective Date"),by and among Sierra Pacific Power Company ("Sierra"), California Pacific Electric Company, LLC ("CalPeco"), and Truckee-Donner Public Utility District ("TDPUD"). Sierra, CalPeco and TDPUD are referred to herein at times individually as a"party" and collectively as the "parties". WHEREAS, Sierra owns and operates an electric distribution system and an electric transmission system located in California(the "California Utility') and TDPUD owns and operates an electric distribution system located in California; WHEREAS, Sierra currently provides service to TDPUD and such service includes delivering power from the Truckee Substation to TDPUD at the Glenshire Meter over the 608 Line and the 7400 Distribution Circuit, which are currently owned and operated by Sierra; WHEREAS, Sierra and CalPeco entered into an Asset Purchase Agreement dated April 22, 2009 (as amended or supplemented from time to time) (the"APA"), pursuant to which Sierra agreed to sell, and CalPeco agreed to purchase, the California Utility(the"Transaction"); WHEREAS, at the consummation of the Transaction(the"Closing") Sierra will convey to CalPeco the 608 Line and the 7400 Distribution Circuit it currently uses to deliver power to TDPUD at the Glenshire Meter; WHEREAS, Sierra and CalPeco have entered into a Service Agreement dated April 22, 2009, as amended (the"PPA"), whereby Sierra will sell CalPeco its entire electric supply requirements to provide retail electric service to its customers in the service territory of the California Utility and among the delivery points designated in the PPA is the Truckee Substation; WHEREAS, after the Closing, Sierra will deliver power to CalPeco pursuant to the PPA at the Truckee Substation and then CalPeco will deliver such power through the 608 Line and its other distribution facilities to its retail customers in the Glenshire area; WHEREAS CalPeco will not offer any FERC-regulated transmission services on the 608 Line or on any other line it is purchasing from Sierra and CalPeco's use of the 608 Line will be subject exclusively to public utility regulation by the California Public Utilities Commission ("CPUC"); WHEREAS, on February 18, 2010, Sierra, CalPeco and TDPUD entered into that certain Settlement Agreement(the"Settlement Agreement")pursuant to which the parties agreed to settle certain claims made by the parties regarding the Transaction and under which the parties agreed to enter into this Agreement; WHEREAS, after the Closing, Sierra will no longer own the 608 Line and the 7400 Distribution Circuit and thus is obligated under the Settlement Agreement to construct and install 1 DWT 14193034v1 0089731-000002 Draft Dated March 11, 2010 the Glenshire System Adjustments (as defined in the Settlement Agreement), which will enable Sierra to continue to provide transmission services to TDPUD for the delivery of power to TDPUD from the Truckee Substation to the Glenshire Meter,but without the use of the 608 Line and the 7400 Distribution Circuit; WHEREAS the Settlement Agreement obligates Sierra to use commercially reasonable efforts to complete the Glenshire System Adjustments by the Closing; and WHEREAS, the parties wish to enter into this Agreement in accordance with the Settlement Agreement for the purposes of(a) enabling Sierra after the Closing to continue to provide transmission services to TDPUD for the delivery of power from the Truckee Substation to the Glenshire Meter in instances in which the Glenshire System Adjustments are not available or otherwise not able to deliver power to the Glenshire Meter; and (b) obligating Sierra to deliver power to CalPeco with the use of the Glenshire System Adjustments to the Glenshire Substation in instances in which the 608 Line is inoperable and thus CalPeco is unable to use its own facilities to deliver power that Sierra delivers under the PPA at the Truckee Substation to the Glenshire Substation. NOW, THEREFORE, the parties hereby agree as follows: 1. Definitions. For purposes of this Agreement, the following definitions are used: (a) "FERC" shall mean the Federal Energy Regulatory Commission or any successor organization. (b) "Glenshire Meter" shall mean the metering point between the Sierra system and the TDPUD system. (c) "Glenshire Substation" shall mean the substation where the 608 Line connects to the 7400 Distribution Circuit. (d) "Good Utility Practice" shall mean practices, methods, standards, guides, and acts that are generally accepted in the electric utility industry or commonly used in prudent utility operations. Good Utility Practice is not limited to the optimum practices, methods, standards, guides or acts to the exclusion of all others. (e) "Governmental Entity' shall mean the United States of America and any other federal, state or local governmental or regulatory authority, department, agency, commission, body, court, or other governmental entity. M "Law" shall mean any statutes, regulations, rules, ordinances, codes, and similar acts or promulgations of any Governmental Entity, and any order,judgment, writ, injunction, decree, directive, or award of a court, administrative judge, or other Governmental Entity acting in an adjudicative or regulatory capacity, with jurisdiction over the subject matter. (g) "Truckee Substation" shall mean the substation where both the 608 Line and the existing 14.4 kV distribution line that connects to TDPUD originate. [Note: May need to be revised to distinguish between this 14.4 kV line and the 14.4 kV 7400 Distribution Circuit] 2 DWT 14193034vl 0089731-000002 Draft Dated March 11, 2010 (h) "608 Line" shall mean the 60 Kv line presently owned by Sierra,but to be conveyed to CalPeco at the Closing, which delivers power from the Truckee Substation to the Glenshire Substation and which Sierra also currently uses to deliver power to TDPUD at the Glenshire Meter. (i) "7400 Distribution Circuit" shall mean the 14.4 kV distribution line presently owned by Sierra,but to be conveyed to CalPeco at the Closing, which originates at the Glenshire Substation and provides an interconnection with TDPUD at the Glenshire Meter and is also used to serve Sierra's retail load. 2. Alternative Power Delivery Services. (a) TDPUD Alternative Transmission Delivery Service. During any period in which the Glenshire System Adjustments have not been completed or are out of service for any reason and thus Sierra is not able to transmit power from the Truckee Substation over the Glenshire System Adjustments for delivery to TDPUD at the Glenshire Meter, Sierra shall use the 608 Line and the 7400 Distribution Circuit for purposes of providing transmission services to TDPUD, and CalPeco shall make the 608 Line and the 7400 Distribution Circuit available to Sierra for this purpose(the"TDPUD Alternative Transmission Delivery Service"). (b) CalPeco Alternative Delivery Point Service. During any period after the Closing in which the 608 Line is out of service for any reason and thus CalPeco is not able to transmit power that Sierra delivers to it at the Truckee Substation over the 608 Line to the Glenshire Substation, Sierra shall use the Glenshire System Adjustments to deliver power to CalPeco under the PPA at the point where the Glenshire System Adjustments interconnect to the 7400 Distribution Circuit near the Glenshire Meter in lieu of delivering power to CalPeco at the Truckee Substation and for purposes of enabling CalPeco to serve its retail customers in the Glenshire area(the"CalPeco Alternative Delivery Point Service"). At any time that CalPeco has executed a Network Integration Transmission Service Agreement("NITSA") with Sierra in accordance with the terms of the Sierra Pacific Resources Operating Companies Open Access Transmission Tariff(the "Sierra OATT"), and CalPeco requests that Sierra deliver power pursuant to the NITSA to the Truckee Substation,but CalPeco is not able to transmit power that Sierra delivers to it at the Truckee Substation over the 608 Line to the Glenshire Substation, Sierra shall use the Glenshire System Adjustments to provide CalPeco Alternative Delivery Point Service and thereby deliver power to CalPeco under the NITSA at the point where the Glenshire System Adjustments interconnect to the 7400 Distribution Circuit near the Glenshire Meter (c) No Charge For Use of Facilities to Provide Alternative Services. There shall be no charge to any party for the use of any facilities used to provide the TDPUD Alternative Transmission Delivery Service or the CalPeco Alternative Delivery Point Service. 3. Term. The term of this Agreement shall commence on the Closing and will continue until 11:59 p.m. Pacific time on the date upon which the parties mutually agree to terminate this Agreement. Notwithstanding the foregoing, CalPeco's obligation to allow Sierra to use the 608 Line and the 7400 Distribution Circuit for purposes of providing the TDPUD Alternative Transmission Delivery Service shall not be effective until the date the CPUC issues a 3 DWT 141930340 0089731-000002 Draft Dated March 11, 2010 final nonappealable order authorizing CalPeco to allow Sierra to use the 608 Line in accordance with the terms and conditions set forth in this Agreement. 4. System Operation and Maintenance. The parties shall work together with each other with respect to the mechanics of providing the TDPUD Alternative Transmission Delivery Service and CalPeco Alternative Delivery Point Service. CalPeco shall operate the 608 Line and the 7400 Distribution Circuit, and Sierra shall operate the Glenshire System Adjustments, in accordance with Good Utility Practice. 5. Indemnification. (a) TDPUD Indemnification of CalPeco. TDPUD shall indemnify and save harmless CalPeco from and against any and all claims for damages in favor of any person or persons, corporation or corporations, founded upon or arising out of TDPUD's provision of retail electric service to its customers. (b) CalPeco Indemnification of Sierra. CalPeco shall indemnify and save harmless Sierra from and against any and all claims for damages in favor of any person or persons, corporation or corporations, founded upon or arising out of the CalPeco Alternative Delivery Point Service-under Section 2(b). 6. Regulatory Approval. CalPeco's obligation to allow Sierra to use the 608 Line for purposes of Sierra providing the TDPUD Alternative Transmission Delivery Service under the terms of this Agreement is subject to the authorization and continuing jurisdiction of the CPUC. CalPeco will use commercially reasonable efforts to obtain the CPUC's approval of this Agreement prior to Closing. Sierra and TDPUD will reasonably cooperate and support such approval proceeding. Nothing in this Agreement is intended to subject TDPUD to the jurisdiction of the CPUC. Nothing in this Agreement is intended to subject CalPeco to regulation by FERC. 7. Compliance with Law. The obligations of each party under this Agreement are, and the performance of any such obligation hereunder is, subject to applicable Law, including the receipt of approvals from Governmental Entities, if any, required to amend, supplement, terminate or otherwise modify the terms and conditions of this Agreement. 8. Representations and Warranties. Each party represents and warrants to the other party that (a) it has the power and authority to execute and deliver this Agreement and to perform its obligations under this Agreement, provided that CalPeco's obligation to perform the TDPUD Alternative Transmission Delivery Service is subject to CalPeco's receipt of the CPUC approval required by Sections 3 and 6 hereof, (b) upon the execution and delivery hereof, this Agreement will be valid, binding and enforceable upon it in accordance with the terms and conditions set forth herein, except as enforceability may be limited by bankruptcy and similar laws affecting or relating to general principles of equity; and (c) its duly-authorized officers, managers or representatives have executed this Agreement on its behalf. Sierra represents and warrants to CalPeco that as of the completion of the Glenshire System Adjustments, Sierra will have the capability and authority to deliver power to CalPeco at the point where the Glenshire System Adjustments interconnect to the 7400 Distribution Circuit as contemplated by Section 2(b) of 4 DWT 14193034v1 0089731-000002 Draft Dated March 11, 2010 this Agreement through the exclusive use of Sierra-owned facilities and without the need to utilize any facilities owned or operated by TDPUD. 9. Waiver of Consecfuential Damages. Notwithstanding any other provision of this Agreement, in no event will a party be liable to the any other party, whether in contract, warranty, tort, negligence, strict liability, or otherwise, for special, indirect, incidental, consequential (including lost profits or revenues, business interruption damages and lost business opportunities), exemplary or punitive damages related to, arising out of, or resulting from performance or non-performance of this Agreement. The limitation on damages under this Section 9 will not apply with respect to claims brought by third persons for which either CalPeco or Sierra, as applicable, is entitled to indemnification under Section 5 of this Agreement. 10. Binding Effect; Assignment. This Agreement will be binding upon and will inure to the benefit of each party's permitted successors and assigns. This Agreement may not be assigned by any party without the other party's prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), and an assignment of this Agreement will not relieve the assigning party of its obligations and liabilities hereunder. Notwithstanding the foregoing, TDPUD and Sierra consent to CalPeco's assignment of this Agreement for collateral security purposes to aid in providing financing for the Transaction. 11. Governing Law; Venue. This Agreement (including any claim or controversy arising out of or relating to this Agreement) will be governed by and construed in accordance with the laws of the State of California, without regard to the conflicts of laws rules. Each party irrevocably submits to the exclusive jurisdiction of the federal and state, courts located in the State of California, waives any objection which it may have to the laying of venue of any proceedings brought in any such court, and waives any claim that such proceedings have been brought in an inconvenient forum. The parties agree that any and all claims, controversies or disputes arising from or relating to this Agreement will be submitted to federal or state courts located in California for resolution. 12. Specific Performance; Attorneys' Fees. The parties expressly agree that a breach of this Agreement by any of the parties will cause irreparable harm to the non-breaching party for which damages would not be an adequate remedy and therefore, the non-breaching party will, in addition to any other rights and remedies available hereunder or at Law, have the right to enforce this Agreement by obtaining an order compelling specific performance of the breaching party's obligations to provide the reliability support provided for under this Agreement. If any party institutes legal proceedings to enforce this Agreement, the prevailing party will be entitled to recover all reasonable costs incurred by such party (including reasonable attorneys' fees) in addition to any other relief to which such party may be entitled. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF A CLAIM FOR SPECIFIC PERFORMANCE BROUGHT BY A PARTY PURSUANT TO THIS SECTION 12. 13. Mediation. The parties agree to mediate any dispute or claim arising between them out of this Agreement before resorting to court action. The parties shall use their best good faith efforts to complete the mediation with sixty (60) days of the date that a party makes a written request to the other 5 DWT 141930341 0089731-000002 Draft Dated March 11, 2010 party(s) to mediate. Mediation fees, if any, shall be divided equally among the parties involved. Other than mediation fees, each party will be responsible for its own costs incurred during the mediation process. The mediation shall be conducted in Reno, Nevada, unless the parties agree to conduct it in a different location. The mediator chosen shall be knowledgeable in electric utility matters and will not have any current or past substantial business or financial relationships with any disputing party. If, for any dispute or claim to which this paragraph applies, any party commences an action without first attempting to resolve the matter through mediation or refuses to mediate after a written request has been made, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. Should the parties be unable to resolve the dispute through mediation, they will be free, subject to Section 11 above, to file an action to adjudicate the dispute. Notwithstanding the foregoing, a claim by a party for specific performance shall not be subject to the mediation procedures and requirements set forth in this Section 13. 14. Notices. Written notice provided under this Agreement should be sent to address indicated below (or at such other address as a party may specify, provided that notices of a change of address will be effective only upon receipt thereof): if to CalPeco: with a copy to: California Pacific Electric Company, LLC Emera Incorporated c/o Algonquin Power&Utilities Corp. Attn: Corporate Secretary Attn: President 1894 Barrington Street 2845 Bristol Circle Halifax,Nova Scotia Oakville, Ontario, Canada L6H 7H& B3J 2A8 Fax: (905) 465-4514 Fax: (902) 428-6171 with a copy to: Davis Wright Tremaine LLP Attn: Steven F. Greenwald 505 Montgomery Street, Suite 800 San Francisco, CA Fax: (415) 276-6599 If to Sierra: with a copy to: Sierra Pacific Power Company Sierra Pacific Power Company Attn: Office of the General Counsel Attn: Christopher A. Hilen 6226 West Sahara Avenue 6100 Neil Road Las Vegas, Nevada 89146 Reno,Nevada 89520-3150 Fax: (702) 402-2069 Fax: (775) 834-4811 6 DWT 141930341 0089731-000002 Draft Dated March 11, 2010 if to TDPUD: with a copy to: Truckee-Donner Public Utility District Porter Simon Attn: General Manager Attn: Steven C. Gross P.O. Box 309 40200 Truckee Airport Road, Suite One Truckee, California 96160 Truckee, California 96161 Fax: (530) 587-1189 Fax: (530) 587-1316 15. Rules of Interpretation. Unless a clear contrary intention appears, this Agreement will be construed and interpreted as follows: (a) the singular number includes the plural number and vice versa; (b)reference to any person includes such person's permitted successors and assigns; (c)reference to any agreement (including this Agreement), document, instrument or tariff means such agreement, document, instrument or tariff as amended or modified and in effect from time to time in accordance with the terms thereof; (d) reference to any Law means such Law as amended, modified, codified or reenacted, in whole or in part, and in effect from time to time; (e) "hereunder," hereof," "herein," "hereto" and words of similar import will be deemed references to this Agreement as a whole and not to any particular Article, Section or other provision hereof or thereof, and (f) "including" (and with correlative meaning "include") means including without limiting the generality of any description preceding such term. 16. Entire Agreement. This Agreement constitutes the entire agreement between the parties with reference to the subject matter hereof, and supersedes all prior and contemporaneous understandings or agreements, oral or written, among the parties with respect to the subject matter of this Agreement. Nothing in this Agreement modifies, supersedes, or otherwise alters any other agreements between the parties. 17. No Third Party Beneficiaries. This Agreement is not intended to and does not create rights, remedies, or benefits of any character whatsoever in favor of any person or party other than the parties hereto, and the obligations herein assumed are solely for the use end benefit of the parties and their permitted successors and assigns. 18. Amendment; Counterparts. The parties may by mutual agreement amend this Agreement by a written instrument duly executed by each party. This Agreement may be executed in multiple counterparts (each of which will be deemed an original, but all of which together will constitute one and the same instrument), and may be delivered by facsimile or email transmission. [Remainder of this page intentionally left blank; Signature page follows immediately below] 7 DWT 141930341 0089731-000002 Draft Dated March 11, 2010 IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the Effective Date. SIERRA PACIFIC POWER COMPANY TRUCKEE-DONNER PUBLIC UTILITY d/b/a NV ENERGY DISTRICT By: By: Name: Roberto R. Denis Name: Jeff Bender Title: Senior Vice President—Energy Delivery Title: Board President CALIFORNIA PACIFIC ELECTRIC COMPANY,LLC By: California Pacific Utility Ventures, LLC, Its: Sole Member By: Name: Ian E. Robertson Title: Manager [Signature Page to Reliability Support Agreement] DWT 141930341 0089731-000002