HomeMy WebLinkAboutRES 2003-04 - Board ,.
TRUCKEE DONNER
Public Utility District
RESOLUTION NO. 2003- 04
OF THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
APPROVING THE MUTUAL RELEASE AND
SETTLEMENT AGREEMENT
BY AND BETWEEN THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT,
IDAHO POWER COMPANY, IDACORP ENERGY L.P., AND IDACORP, INC.
WHEREAS,pursuant to the Agreement for the Sale and Purchase of Firm Capacity and Energy
effective July 1, 1997 by and between the Truckee Donner Public Utility District("District") and
Idaho Power Company, as amended on January 1, 1999, April 21, 2000, and March 2, 2001 and
as supplemented by various related transaction confirmations ("Power Contract"), which was
assigned by Idaho Power Company to IDACORP Energy L.P., the District is obligated to
purchase a 25 megawatt block of power(that includes power to meet the District's load
requirements and some surplus power) at the price of$72 per megawatt hour through 2009; and
WHEREAS, on or about May 7, 2002, the District notified Idaho Power Company that it
considered Idaho Power Company and IDACORP Energy, L.P. to be in breach of the Power
Contract and that all payments made by the District pursuant to the Power Contract after January
15 2002 and all future payments to be made pursuant to the Power Contract were and would be
made "under protest;"and
WHEREAS, initial efforts by the District to informally resolve its dispute with Idaho Power
Company and IDACORP Energy, L.P. were unsuccessful; and
WHEREAS, on May 30, 2002 IDACORP Energy, L.P. filed a lawsuit against the District in
Idaho state court seeking a court declaration that IDACORP Energy, L.P. was not in breach of
the Power Contract and the District subsequently removed the case to federal court in the State of
Idaho and filed counterclaims alleging that Idaho Power Company, IDACORP Energy, L. P. and
IDACORP, Inc. ("Idaho Parties") were in breach of the Power Contract("Action"); and
WHEREAS,the District intervened and filed protests in a case filed at the Federal Energy
Regulatory Commission("FERC") in which Garnet Energy LLC, an affiliate of Idaho Power
Company, filed an application for limited market-based rate authority("Garnet proceeding
and
WHEREAS, on or about July 23, 2002, the District filed a complaint with the FERC
reformation or termination of the Power Contract and other relief("FERC Compla;
.. WHEREAS,the District and the Idaho Parties have negotiated a Mutual Rele?
Agreement in which the parties agree to settle and resolve all of the claims a,
Exhibit H, page 2 of 4
arising from or relating to the Power Contract as alleged in the Action, the Garnet Proceeding
and the FERC Complaint, and to cancel the Power Contract("Settlement Agreement"); and
WHEREAS, effective December 1, 2002, the District and IDACORP Energy, L.P. entered into
an Interim Power Supply Agreement pursuant to which the District will purchase power and
energy from IDACORP Energy, L.P. in amounts necessary to serve the District's load
requirements through March 31, 2003 ; and
WHEREAS, it is in the best interests of the District to enter into the Settlement Agreement
because it will result in cancellation of the Power Contract and the District's obligation to
purchase power(including power surplus to Truckee's load requirements) at the contractual rate
and allow the District to purchase power at current market rates to meet its load requirements;
and
WHEREAS, it is in the best interests of the District to enter into the Settlement Agreement
because it is expected that the combined cost to the District to purchase power after cancellation
of the Power Contract and the cost to pay its obligations to the Idaho Parties pursuant to the
Settlement Agreement will be less than the price that the District would pay for power pursuant
to the Power Contract.
NOW, THEREFORE, BE IT RESOLVED that the Board of Directors adopts the above
recitals as its findings; and
BE IT FURTHER RESOLVED by the Board of Directors that it approves the Settlement
Agreement and directs the President of the Board to execute it.
PASSED AND ADOPTED by the Board of Directors at a meeting duly called and held within
the District on the 2nd day of January, 2003 by the following roll call vote:
AYES: Directors Aguera, Hemig, Maass, Sutton and Van Gundy
NOES: None
ABSENT: None
Exhibit H,page 3 of 4
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
By
J. R n Hemig, President of the Board
ATTE
Peter L. Holzmeister, Clerk of the Board
I hereby certify that this is a true and correct copy of Resolution No. 2003-04-passed and
adopted by the Truckee Donner Public Utility District Board of Directors on the 2nd day of
January 2003.
Peter L. Holzmeister, Clerk of the Board
Exhibit H,page 4 of 4
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
THIS MUTUAL RELEASE AND SETTLEMENT AGREEMENT ("Settlement
Agreement") is made effective as of January 3, 2003 (the "Effective Date")by and between
Idaho Power Company ("Idaho Power"), IDACORP Energy L.P., ("IDACORP Energy"), and
IDACORP Inc. on the one hand (referred to herein collectively as the "Idaho Parties"), and the
Truckee Donner Public Utility District("Truckee-Donner") on the other hand. (Idaho Power,
IDACORP Energy, IDACORP Inc. and Truckee-Donner are referred to collectively as the
"Parties").
RECITALS
WHEREAS, effective July 1, 1997, Idaho Power and Truckee-Donner entered into an
Agreement for the Sale and Purchase of Firm Capacity and Energy. Effective January 1, 1999,
Idaho Power and Truckee-Donner entered into the First Amendment to the July 1, 1997
Agreement. Effective April 21, 2000, Idaho Power and Truckee-Donner entered into the Second
Amendment to the July 1, 1997 Agreement. Effective April 22, 2000, Idaho Power and Truckee-
Donner entered into a Transaction Confirmation for 5 MW Flat during 2002, at a price of$35.75
per megawatt hour. Effective March 2, 2001, Idaho Power and Truckee-Donner entered into the
Third Amendment to the July 1, 1997 Agreement. Effective March 1, 2001, Idaho Power and
Truckee-Donner entered into two Transaction Confirmations for(1) 10 megawatts ("MW") of
Light Load and 20 MW of Heavy Load in 2002, and(2) 25 MW Flat for 2003-2009, all priced at
$72 per megawatt hour. The foregoing are collectively referred to herein as the"Power
Contract."
WHEREAS, effective June 1, 2001, Truckee-Donner consented in writing to the
assignment of the Power Contract from Idaho Power to IDACORP Energy.
WHEREAS,on or about May 7, 2002, Truckee-Donner notified Idaho Power that it
considered Idaho Power and IDACORP Energy to be in breach of the Power Contract, and stated
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Page 1 of 16
that all payments made by Truckee-Donner pursuant to the Power Contract after January 1, 2002,
and all future payments to be made pursuant to the Power Contract, would be made "under
protest."
WHEREAS, on or about May 30, 2002, IDACORP Energy filed a Complaint for
Declaratory Judgment and Injunctive Relief against Truckee-Donner in the District Court of the
Fourth Judicial District of the State of Idaho, in and for the County of Ada, Case No. CV OC
0204097D. Truckee-Donner subsequently removed the action to federal court. On or about
July 23, 2002, IDACORP Energy filed a First Amended Complaint For Declaratory Judgment,
Breach of Oral Agreement, Reformation and Injunctive Relief in the United States District Court
for the District of Idaho, Case No. 02-CV-282. On or about August 15, 2002, Truckee-Donner
answered the First Amended Complaint and asserted Counterclaims against IDACORP Energy,
Idaho Power and IDACORP Inc. On or about September 23, 2002, IDACORP Energy, Idaho
as
Power and IDACORP Inc. filed their Reply to Truckee-Donner's Counterclaims. Case
No. 02-CV-282, including but not limited to Truckee-Donner's Counterclaims is hereafter
referred to as the "Action."
WHEREAS, on or about February 27, 2002, Garnet Energy LLC filed an Application for
Limited Market-Based Rate Authority with the Federal Energy Regulatory Commission
("FERC"), Docket No. ER02-1119, in which Truckee-Donner subsequently intervened and filed
protests (the "Garnet Proceeding").
WHEREAS,on or about July 23, 2002, Truckee-Donner filed a Complaint with FERC
seeking reformation, or termination of the Power Contract and other relief, Docket
No. EL02-108-000 (the "FERC Complaint"). On or about August 12, 2002, IDACORP Energy,
Idaho Power and IDACORP Inc. filed an Answer to the FERC Complaint.
WHEREAS,the Parties desire to settle and resolve the claims against each other arising
from or relating to, the Power Contract as alleged in the Action, the FERC Complaint and the
Garnet Proceeding, and to cancel the Power Contract effective upon the Effective Date of this
Settlement Agreement.
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Page 2 of 16
WHEREAS, effective December 1, 2002, Truckee-Donner and IDACORP Energy
agreed to the terms of an Interim Power Supply Agreement for the delivery of energy through
March 31, 2003, the efficacy of which is expressly conditioned on the execution of this
instrument not later than December 19, 2002, which date has subsequently been extended to
January 3, 2003 by mutual agreement of the Parties.
NOW, THEREFORE,in consideration of the matters recited above and the covenants,
undertakings and forbearances set forth below, the Parties agree as follows:
1. Payment.
a. Promissory Note and Settlement Amount. Contemporaneously with the
execution of this Settlement Agreement, Truckee-Donner will execute a promissory note in favor
of IDACORP Energy in the sum of Twenty Six Million Dollars ($26,000,000) (the "Settlement
Payment"), in the form attached as Exhibit A to this Settlement Agreement, and incorporated
herein by reference (the "Promissory Note").
b. Payment Due Date. Truckee-Donner will send the Settlement Payment
by wire transfer to IDACORP Energy's designee on or before noon, Pacific Prevailing Time,no
sooner than April 1, 2003 but no later than April 4, 2003 ("Payment Due Date").
C. Default. Any failure by Truckee-Donner to pay the full amount of the
Settlement Payment by the Payment Due Date shall constitute an event of material default under
this Settlement Agreement ("Default"). In the event of Default, IDACORP Energy shall be
entitled to file suit for collection of the Promissory Note in Idaho state court or in United States
District Court in Idaho, and file the Confession of Judgment and Stipulation to Jurisdiction and
Venue in Idaho (hereafter"Confession of Judgment"), as set forth in Paragraph 1.d. below. In
the event of Default, Truckee-Donner expressly consents: (1) to accept Service of Process by
certified mail, return receipt requested, by the United States Postal Service; (2)to personal
jurisdiction in the State of Idaho; and(3)to venue of any action for collection of the Promissory
Note in the United States District Court in Idaho, or if subject-matter jurisdiction is lacking, in
Idaho state court. Truckee-Donner agrees that the courts of the State of Idaho shall be the
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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exclusive venue for the resolution of all claims arising out of or related to this Settlement
Agreement, and Truckee-Donner covenants and promises not to institute suit in any other
jurisdiction respecting any claims arising out of or related to this Settlement Agreement.
d. Confession of Judgment. Concurrent with the execution of this
Settlement Agreement, Truckee-Donner shall execute the Confession of Judgment, in the form
attached as Exhibit B to this Settlement Agreement, and incorporated herein by reference. The
Confession of Judgment shall be for the unpaid principal balance of the Promissory Note,
accrued interest as set forth in the Promissory Note, costs and reasonable attorneys' fees.
IDACORP Energy shall file the Confession of Judgment only upon the occurrence of a Default
by Truckee-Donner, as defined in this Settlement Agreement, and IDACORP Energy's
institution of suit based upon an event of Default. Upon execution, the original of Exhibit B, and
any related documents, shall be delivered to Rex Blackburn Esq., of the firm Blackburn&Jones,
LLP, to be held in trust for the parties hereto. Upon payment of the amount required by the
Promissory Note, Exhibit B and related documents shall be delivered by Mr. Blackburn to Dean
J. Miller of the firm McDevitt& Miller within five (5)business days of receipt of payment. In
the event of the occurrence of a Default by Truckee-Donner, as defined in this Settlement
Agreement, said documents shall, at IDACORP Energy's option be filed with the appropriate
court, as herein provided.
e. Payments for Power Deliveries. Truckee-Donner shall remain obligated
to make any and all payments for power deliveries under the Interim Power Supply Agreement.
f. Termination of Obligations. Upon payment of the Promissory Note and
all amounts due under the Interim Power Supply Agreement, Truckee Donner shall have no
further obligations to the Idaho Parties except as expressly preserved in this Settlement
Agreement.
g. Transfer of Note. In the event Idacorp Energy chooses to sell or transfer
its interest in the Promissory Note it shall do so only to a person or entity that is an"accredited
investor"under Regulation D of the Securities Act of 1933 (the"Act") or a"qualified
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Page 4 of 16
institutional buyer"under Rule 144(a) of the Act. Idacorp Energy shall secure from any
transferee or purchaser an Investor Representation Letter in the form attached hereto as
Exhibit C; provided, however, this paragraph shall not restrict the sale of the Promissory Note to
any purchaser in the event the note is in default for non-payment.
2. Suspension and Termination of Existing Agreements.
a. Suspension of Power Contract. As reflected in the Interim Power
Supply Agreement(attached as Exhibit D to this Settlement Agreement, and incorporated herein
by reference), effective December 1, 2002, the Parties agreed to suspend performance of their
respective rights and obligations under the Power Contract in anticipation of this Settlement
Agreement.
b. Termination of Power Contract. The Power Contract shall be
terminated effective upon the Effective Date (as set forth on page1, above) of this Settlement
Agreement.
C. No Power Delivery After March 31, 2003. Notwithstanding any
provision in either this Settlement Agreement, the Power Contract or the Interim Power Supply
Agreement, the Idaho Parties shall have no further obligations to deliver power to Truckee-
Donner after March 31, 2003. Upon termination of the rights and responsibilities under the
Interim Power Supply Agreement, the Idaho Parties shall have no further obligations to Truckee-
Donner except as expressly preserved in this Settlement Agreement.
3. Dismissals and Withdrawals.
a. The Action. Within five (5)business days of the Effective Date of this
Settlement Agreement, the Idaho Parties shall file on behalf of the Parties a joint stipulation of
dismissal of the Action, with prejudice, with the Clerk of the U.S. District Court for the District
of Idaho (in the form attached as Exhibit E to this Settlement Agreement and incorporated herein
by reference).
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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b. The FERC Complaint. Within five (5)business days of the Effective
Date of this Settlement Agreement, Truckee-Donner shall submit written notification to FERC
on behalf of the Parties that they withdraw, with prejudice,the FERC Complaint, the Idaho
Parties' answer, and Truckee-Donner's response,pursuant to FERC Rule 216. Such notification
shall be in the form attached as Exhibit F to this Settlement Agreement and incorporated herein
by reference. If, within 15 days of the notice of withdrawal being filed, any participant in the
FERC Complaint proceedings objects to the withdrawal of the pleadings, or if FERC on its own
initiative takes some action adverse to the withdrawal, such that the withdrawal of the pleadings
is not automatically effective under Rule 216, the Parties will make good-faith efforts to obtain
as soon as possible a FERC order dismissing the FERC Complaint with prejudice and otherwise
to proceed with the implementation of the terms of this Settlement Agreement.
C. The Garnet Proceeding. Within five (5)business days of the Effective
Date of this Settlement Agreement, Truckee-Donner shall withdraw, with prejudice, its protest of
and intervention in the Garnet Proceeding,pursuant to FERC Rule 216. Such notification shall
be in the form attached as Exhibit G to this Settlement Agreement and incorporated herein by
reference.
d. Other Consents. Truckee-Donner agrees that it shall not file a protest in
Docket No. EC03-24-000, or in any filing made by IDACORP Energy and/or Idaho Power to
secure approval for the assignment of contracts between either of those parties and Overton
Power District or Grays Harbor Public Utility District.
4. Mutual Releases.
a. Releases by Idaho Power,IDACORP Energy and IDACORP Inc.:
Subject to the rights and obligations set forth in this Settlement Agreement, Idaho Power,
IDACORP Energy and IDACORP Inc. release and forever discharge Truckee-Donner and its
affiliates, successors, agents, managers, directors, trustees,parents,predecessors, assigns,
subsidiaries, representatives, partners, limited partners, officers, attorneys and employees from
any and all accountings, actions, manner of actions, causes of action, claims, demands, costs,
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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damages, liabilities, losses, obligations, expenses,promises, and compensation of any nature
whatsoever, in law and in equity,related to or arising from the Power Contract, the Action, the
Garnet Proceeding and/or the FERC Complaint,which Idaho Power, IDACORP Energy and
IDACORP Inc. had, now have, or claim to have against Truckee-Donner, whether or not known,
suspected or alleged as of the date of this Settlement Agreement.
b. Release by Truckee-Donner: Subject to the rights and obligations set
forth in this Settlement Agreement, Truckee-Donner releases and forever discharges Idaho
Power, IDACORP Energy and IDACORP Inc. and their corporate affiliates, successors, agents,
managers, directors, trustees, parents, predecessors, assigns, subsidiaries,representatives,
partners, limited partners, officers, attorneys and employees from any and all accountings,
actions, manner of actions, causes of action, claims, demands, costs, damages, liabilities, losses,
obligations, expenses, promises, and compensation of any nature whatsoever, in law and in
equity, related to or arising from the Power Contract, the Action, the Garnet Proceeding and/or
the FERC Complaint, which Truckee-Donner had, now has, or claims to have against Idaho
Power, IDACORP Energy and/or IDACORP Inc., whether or not known, suspected or alleged as
of the date of this Settlement Agreement.
C. Waiver of Right to Refunds and Other Remedies: The Parties waive
any right to refunds or any other remedies relating to or arising from the Power Contract or the
Interim Power Supply Agreement, which result or arise from any existing or future FERC
proceeding or state or federal administrative or court proceeding.
5. Waiver of Unknown Claims.
a. With respect to the releases contained in Paragraph 4 of this Settlement
Agreement, the Parties expressly waive any right available under the provisions of Section 1542
of the California Civil Code or any other statute or common law principle of similar effect.
Section 1542 provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN TO HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
b. In making the waiver in Paragraph 5(a) of this Settlement Agreement, the
Parties acknowledge that they may discover facts that are in addition to or different from those
which they now believe to be true with respect to the subject matter of this Settlement
Agreement. The Parties agree that they have taken that possibility into account in reaching this
Settlement Agreement, and agree that the releases given in this Settlement Agreement shall be
and remain in effect notwithstanding the discovery or existence of any such additional or
different facts. Each of the Parties specifically acknowledges that in making the waiver in
Paragraph 5(a) it: (1) is not relying on any statement made by another Party in evaluating its
claims or damages; and(2)has received, and relied upon, independent advice from its advisors
regarding the value of its claims. The Parties make the waiver in Paragraph 5(a) in full
knowledge that the actual value of their claims may be above or below the settlement amount set
forth in this Settlement Agreement. The Parties make the waiver in Paragraph 5(a) in full
knowledge that they may have sustained damages, losses, costs or expenses covered by the
releases in Paragraph 4 above that are currently unknown or unsuspected and that may give rise
to additional damages, losses, costs or expenses in the future.
6. Confidentiality.
a. The parties understand and acknowledge that this Settlement Agreement,
upon approval by the Truckee-Donner Board of Directors, will be a public document available
for inspection and copying by the general public. Notwithstanding this, unless otherwise agreed
in writing, the Parties shall keep confidential all information relating to the negotiation of this
Settlement Agreement, including each Party's estimates of the valuation of the Power Contract.
In particular, the Parties shall not disclose information relating to the negotiation of this
Settlement Agreement to third parties who are in litigation with any Party hereto involving a
similar subject matter.
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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b. This provision shall be binding upon the directors, officers, employees,
agents and attorney's of each Party, and the Parties shall ensure their compliance herewith.
c. Notwithstanding any provision of this Settlement Agreement to the contrary,
nothing shall limit the District's obligation to make any disclosure necessary to comply with
applicable law (including but not limited to federal securities law and the law of the State of
California) in connection with the delivery of certificates of participation or other evidence of
indebtedness, nor shall any provision of this Settlement Agreement limit the District's ability to
communicate to its patrons information necessary to explain any change in the District's retail
electric rates that may be occasioned by this Settlement Agreement.
d. Notwithstanding any provision of this Settlement Agreement to the contrary,
nothing shall limit Idaho Power Company and/or IDACORP Inc.'s obligation to make any
disclosure as required in filings with the United States Securities and Exchange Commission
("SEC") or as otherwise required to do so by FERC or any other governmental agency,
regulatory authority, court or law. Any otherwise confidential information contained in filings
contemplated by this paragraph shall, upon the publication of said filings,be released from the
requirements of this paragraph 6 "Confidentiality".
e. Notwithstanding any provision of this Settlement Agreement to the contrary,
the Parties may reveal information relating to this Settlement Agreement to their tax advisors,
consultants, lawyers, accountants, financial rating agencies, financial obligation insurers,
partners and lenders on the condition that all such persons agree to keep the terms confidential.
7. No Admission. Nothing in this Settlement Agreement shall be construed as or
deemed for any purpose to be an admission or denial as to the validity of any claims or defenses
in the Action, the Garnet Proceeding or the FERC Complaint.
8. Entire Agreement. The Parties agree that this Settlement Agreement, including
its Exhibits A through J sets forth the final entire agreement between them relating to their
settlement and that this document merges and supersedes all prior discussions, agreements,
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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understandings, representations, and all other communications between them relating to the
subject matter of this Settlement Agreement.
9. Attorneys' Fees and Costs. The Parties each shall bear their own attorneys' fees
and costs. However, if any Party to this Settlement Agreement commences any action or
proceeding against any other Party arising out of this Settlement Agreement, then the prevailing
Party in such an action or proceeding shall be entitled to recover reasonable attorneys' fees and
costs, including expert witness fees.
10. Warranty of Authority.
a. The Idaho Parties and Truckee-Donner represent and warrant that they
have the right,power and authority to execute this Settlement Agreement. The Idaho Parties and
Truckee-Donner further represent and warrant that they have the exclusive right to prosecute and
compromise the claims released by this Settlement Agreement and that they have neither made
nor suffered to be made any sale, assignment, transfer, conveyance,pledge, hypothecation, or
encumbrance of any kind whatsoever of any right, claim, demand, obligation, cost, expense,
sanction, grievance, action, cause of action, controversy, debt, damage, arbitration, liability,
duty,penalty, attorney fee, charge, suit, punitive damage, injury, loss, agreement, contract,
promise, or lien released, canceled, rescinded or discharged hereby, and that they have the sole
and absolute legal and equitable ownership thereof, free and clear of any interest of any other
person or entity.
b. The Idaho Parties and Truckee-Donner represent and warrant that they
have given any and all notices, and obtained any and all consents,powers and authorities,
necessary to permit them and the persons executing this Settlement Agreement for them, to enter
into this Settlement Agreement, settle, compromise, and release the claims settled, compromised,
and released herein, to do, undertake, or forbear from any act called for herein, and to make this
Settlement Agreement, and all the provisions hereof, fully binding on and enforceable against
... them, including, without limitation thereto, any necessary notice to or consent or approval from
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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their shareholders, creditors, Board of Directors,partners, limited partners, members,managers,
officers, or any other person, entity, group or body.
C. On or before the Effective Date of this Settlement Agreement, and no later
than January 3, 2003, Truckee-Donner shall provide to the Idaho Parties: (1) a certified
resolution of its Board of Directors approving this Settlement Agreement, in the form attached
hereto as Exhibit H and(2) an opinion of counsel for Truckee-Donner confirming the validity,
binding effect and enforceability of this Settlement Agreement against Truckee-Donner, in the
form attached hereto as Exhibit I.
d. On or before the Effective Date of this Settlement Agreement, and no later
than January 3, 2003, the Idaho Parties shall provide to Truckee-Donner an opinion of counsel
for the Idaho Parties confirming the validity,binding effect and enforceability of this Settlement
Agreement against the Idaho Parties, in the form attached hereto as Exhibit J.
11. Written Waiver. A waiver of any provision of this Settlement Agreement shall
not be effective unless such a waiver is made expressly in writing. An express waiver of any one
breach shall not be deemed a waiver of any other breach of the same or any other provision of
this Settlement Agreement.
12. Legal Representation. The Parties affirm that they have been represented by
counsel of their own choosing regarding the preparation and negotiation of this Settlement
Agreement and the matters and claims set forth herein, and that each of them has read this
Settlement Agreement and is fully aware of its contents and its legal effect. No Party is relying
on any statement of the other Party outside the terms set forth in this Settlement Agreement as an
inducement to enter into this Settlement Agreement.
13. Joint Preparation. The language of all parts of this Settlement Agreement shall
in all cases be construed as a whole, according to its fair meaning, and not strictly for or against
any Party. No presumptions or rules of interpretation based upon the identity of the Party
preparing or drafting the Settlement Agreement, or any part thereof, shall be applicable or
invoked.
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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14. Equal Dignity. This Settlement Agreement may not be altered, amended,
modified or otherwise changed except in writing duly executed by an authorized representative
of each of the Parties.
15. Binding on Assignees. This Settlement Agreement shall be binding on and inure
to the benefit of the heirs, successors and assigns of the Parties to the Settlement Agreement.
16. Choice of Law and Forum. This Settlement Agreement shall be governed by
and construed in accordance with the laws of the State of Idaho. Any action or proceeding by
one Party against another Party arising out of this Settlement Agreement shall be filed and
adjudicated only in the United States District Court for the District of Idaho, or if subject matter
jurisdiction is lacking, in Idaho State court.
17. Counterparts. This Settlement Agreement may be executed in counterparts,
each of which will be deemed an original. The Parties will sign, date, and exchange the original
counterparts by facsimile on or before 5:00 p.m., Pacific Standard Time, no later than January 3,
2003. The Parties' counsel will exchange facsimiles of the entire signed Settlement Agreement
and by exchanging such facsimiles warrant the genuineness of the faxed signatures. The Parties
agree that the Settlement Agreement will be fully executed and binding upon the Parties'
exchange of facsimiles of the signed Settlement Agreement. The Parties agree to take those
steps necessary for each Party to retain one fully executed Settlement Agreement with original
signatures.
18. Captions. Captions are included herein for ease of reference only. The captions
are not intended to affect the meaning of the contents or scope of this Settlement Agreement.
19. Survival of Obligations. None of the releases contained in this Settlement
Agreement is intended to release any Party from any obligation or understanding to be performed
pursuant to this Settlement Agreement, all of which obligations and understandings shall survive
the Effective Date hereof.
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20. Recitals and Exhibits Material. The Recitals and Exhibits to this Settlement
Agreement are material terms to this Settlement Agreement and are incorporated herein by
reference.
21. Provisions Severable. Each provision of this Settlement Agreement shall be
interpreted in such a manner as to be valid and enforceable under applicable law,but if any
provision is or becomes prohibited or invalid under any applicable law, that provision shall be
ineffective only to the extent of such prohibition or invalidity, without thereby invalidating the
remainder of that provision or of any other provision.
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IN WITNESS WHEREOF this Settlement Agreement is executed and agreed to by the
following, as of January 3, 2003.
IDACORP Energy L.P.
By:
Name: Richard Riazzi
Title: President
Idaho Power Company
By:
Name: J. LaMont Keen
Title: President and Chief Operating Officer
IDACORP,Inc.
By:
Name: J. B. Packwood
Title: President and Chief Executive Officer
Truckee-Donner Public Utility District.
By:
Name: J. Ronald Hemig
Title: President, Board of Directors
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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Approved as to form:
MCDEVITT & MILLER LLP
By:
Attorneys for Truckee-Donner Public Utility
District.
PORTER SIMON
By:
Attorneys for Truckee-Donner Public Utility
District
SPIEGEL & MCDIARMID
By:
Attorneys for Truckee-Donner Public Utility
District.
MORRISON & FOERSTER LLP
By:
Attorneys for IDACORP Energy L.P., Idaho
Power Company and IDACORP Inc.
BLACKBURN & JONES LLP
By:
Attorneys for IDACORP Energy L.P., Idaho
Power Company and IDACORP Inc.
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
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LEBOEUF, LAMB, GREENE & MACRAE LLP
By:
Attorneys for IDACORP Energy L.P., Idaho
Power Company and IDACORP Inc.
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Page 16 of 16
EXHIBIT A
PROMISSORY NOTE
$2690005000 Date: January 3, 2003
In connection with the Mutual Release and Settlement Agreement dated January 3, 2003
(the "Settlement Agreement") entered into by and between Idaho Power Company("Idaho
Power"), IDACORP Energy L.P., ("IDACORP Energy"), and IDACORP Inc. (collectively,
"Holder"), and the Truckee-Donner Public Utility District("Maker"), and in consideration for
the terms and provisions of the Settlement Agreement, Maker hereby promises to pay to the
order of IDACORP Energy, by wire transfer, in lawful money of the United States of America,
the principal sum of Twenty Six Million Dollars ($26,000,000), together with accrued interest, if
any pursuant to the terms of the Settlement Agreement and this Promissory Note.
l. Payment of Principal and Interest. The principal amount under this Note shall
bear interest at the rate of twelve percent(12%)per annum (the"Note Rate"). All interest
payable hereunder shall be calculated on the basis of a 360-day year, commencing as of January
3, 2003. The outstanding principal balance of this Note shall be payable in full no sooner than
April 1, 2003 and no later than April 4, 2003 (the "Maturity Date").
2. Waiver of Interest Charles. Maker acknowledges and understands that Maker is
responsible for paying any and all of the outstanding principal due on this Note as provided
herein on the Maturity Date. Holder agrees to forgive and waive, at the Maturity Date, accrued
interest charges under this Note only if all payments under this Note have been made on or
before the Maturity Date. If all payments under this Note have not been made on or before the
Maturity Date, interest shall accrue at the Note Rate from the Maturity Date until the date of
payment. If all payments under this Note have not been made on or before 30 days after the
Maturity Date, interest on the principal amount shall accrue at the Note Rate from January 3,
2003 until the date of payment.
3. Events of Default and Remedies. Upon the occurrence of any of the following
events (each, an"Event of Default"):
(a) The failure of Maker to make payment upon this Note on or before 30
days after the Maturity Date; or
(b) The failure of Maker to observe or perform any other term or provision of
this Note and the continuation of such failure for twenty(20) days after notice thereof is given to
Maker by the Holder hereof; or
(c) Maker becomes insolvent or bankrupt, commits any act of bankruptcy,
generally fails to pay its debts as they become due, becomes the subject of any proceedings or
action of any regulatory agency or any court relating to its insolvency, makes an assignment for
the benefit of its creditors, or enters into any agreement for the extension or readjustment of all
Exhibit A,page 1 of 4
or substantially all of Maker's obligations or there is appointed a trustee, receiver or similar
officer for Maker;
THEN,
Upon the occurrence of an Event of Default under subparagraph (c) above automatically, and,
upon the occurrence of any other Event of Default at the option of the Holder hereof: (1) the
entire unpaid principal balance of and accrued and unpaid interest on this Note shall, without
notice to or demand of any kind upon Maker or any other person or entity, immediately become
due and payable; and(2) the Holder hereof shall have and may exercise any and all rights,
powers and remedies available hereunder, at law or in equity.
4. Attorneys' Fees and Costs. Maker shall pay on demand all costs of collection
when incurred, including, without limitation, (i)reasonable out-of-pocket costs of and expenses
of Holder in connection with the collection of amounts due hereunder and reasonable attornies'
fees incurred in connection therewith, whether any lawsuit is ever filed with respect thereto,
(ii) the reasonable fees and expenses of any receiver or custodian appointed by any court at the
request of Holder and any counsel or professional engaged by such receiver or custodian; and
(iii) all reasonable fees, costs and expenses (including, but not limited to,professional fees)
incurred in connection with enforcing and collecting on this Note, including fees and expenses
incurred in connection with any voluntary or involuntary bankruptcy case. These expenses shall
be added to principal, and shall bear interest at the rate specified herein from the date incurred
until paid by Maker, which interest Maker agrees to pay.
5. Choice of Law. This Note shall be governed by and construed in accordance with
the laws of the State of Idaho without giving effect to its choice of law rules.
6. Forum Selection Clause and Consent to Jurisdiction. Any action or proceeding by
either the Holder or the Maker arising out of this Note shall be filed and adjudicated only in the
United States District Court for the District of Idaho, or if subject matter jurisdiction is lacking,
in Idaho State Court. Maker expressly consents to personal jurisdiction in Idaho.
7. Waiver. Maker and all others who may become liable for all or part of the
obligations of Maker under this Note (collectively, the"Obligors") agree to be jointly and
severally bound hereby, and jointly and severally, (i) waive presentment and demand for
payment, notices of nonpayment and of dishonor, protest of dishonor, and notice of protest;
(ii) waive all notices in connection with the delivery and acceptance hereof and all other notices
in connection with the performance, default, or enforcement of the payment hereof or hereunder
except as specifically required by this Note; (iii)waive any and all lack of diligence and delays
in the enforcement of the payment hereof; (iv) agree that the liability of each Obligor shall be
unconditional and without regard to the liability of any other person or entity for the payment
hereof, and shall not in any manner be affected by any indulgence or forbearance granted or
consented to by Holder to any Obligor or any such other person or entity; (v) consent to any and
all extensions of time, renewals, waivers or modifications that may be granted by Holder with
respect to the payment or other provisions hereof, and to the release of any person or entity liable
for the payment hereof; and(vi) consent to the addition of any and all other makers, endorsers,
guarantors, and other obligors for the payment hereof, and agree that the addition of any such
Exhibit A,page 2 of 4
obligors or security shall not affect the liability of any of the Obligors for the payment hereof.
Obligors further agree that the Holder of this Note may, without notice to Obligors and without
affecting the liability of Obligors, accept additional or substitute security for this Note, or release
any security or any party liable for this Note, or extend or renew this Note.
8. Maximum Interest Rate, Charges. All agreements between Maker and the Holder
of this Note are expressly limited so that under no circumstances whatsoever and in no event
whatsoever, whether by reason of the advancement of proceeds or the escalation of maturity
arising from default or otherwise, shall the amount paid or agreed to be paid to the Holder hereof
for the use, forbearance or detention of the money to be advanced hereunder exceed the highest
rate permissible under the laws of the State of Idaho, the State of California or any other
applicable law. If, for any reason whatsoever, fulfillment of any provision of this Note or of any
other agreement relating hereto, shall involve transcending the applicable usury limit which a
court of competent jurisdiction may apply hereto, then the obligation to be fulfilled shall
automatically be reduced to such limit, and if for any reason the Holder hereof shall ever receive
as interest an amount which would exceed such limit, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance due under this Note and
not to the payment of interest, or, if such amount exceeds the unpaid principal balance, Holder
shall refund the difference.
9. Miscellaneous.
(a) The provisions of this Note shall inure to the benefit of and be binding on
any successor to Maker, or any assignees hereof, and shall extend to any Holder hereof.
(b) The obligation to pay the Holder of this Note shall be absolute and
unconditional and the rights of such Holder shall not be subject to any defense, setoff,
counterclaim or recoupment or by reason of any indebtedness or liability at any time owing by
Holder to Maker.
(c) This Note shall not be amended unless such amendment is in writing and
executed by both Holder and Maker.
(d) All amounts payable under this Note are payable by wire transfer.
(e) Headings are for convenience only and are not intended as a limitation on
the content of the paragraph following,nor as an aid in construction thereof. The parties hereto
intend and believe that each provision of this Note comports with all applicable law; however, if
any provision in this Note is found by a court of law to be in violation of any applicable law, and
if such court should declare such provision of this Note to be unlawful., void or unenforceable as
written, then it is the intent of all parties to the fullest possible extent that it is legal, valid and
enforceable, that the remainder of this Note shall be construed as if such unlawful, void or
unenforceable provision were not contained therein, and that the rights, obligations and interests
of Maker and Holder hereof under the remainder of this Note shall continue in full force and
effect; provided, however, that if any provision of this Note which is found to be in violation of
any applicable law concerns the imposition of interest hereunder, the rights, obligations and
Exhibit A,page 3 of 4
interest of Maker and Holder with respect to the imposition of interest shall be governed and
controlled by the provisions of Paragraph 8 hereof. Time is of the essence of this Note.
(f) This instrument, together with the Settlement Agreement constitutes and
sets forth the entire understanding and agreement of the parties, and no party hereto has relief
upon any representations, agreements or understandings, verbal or written, not set forth herein or
in the Settlement Agreement whether made by any party hereto or by any agent, employee or
representative of any party hereto. Specifically, and without limiting the foregoing, the parties
agree that Holder has made no agreement to extend or renew this Note.
(g) Maker warrants and represents that it has the right,power and authority to
execute this Note. Maker represents and warrants that it has given any and all notices, and
obtained any and all consents,powers and authorities, necessary to permit it and the persons
executing this Note for it, to enter into this Note, and to make this Note, and all the provisions
hereof, fully binding on and enforceable against Maker, including, without limitation thereto, any
necessary notice to or consent or approval from its shareholders, creditors, Board of Directors,
partners, limited partners, members, managers, officers, or any other person, entity, group or
body. On or before the Effective Date of this Promissory Note, and no later than the effective
date of the Settlement Agreement, Maker shall provide to Holder: (1) a certified resolution of its
Board of Directors approving this Note, and(2) an opinion of counsel for Maker confirming the
validity,binding effect and enforceability of this Note against Maker.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Note as of
the date and year first above written.
TRUCKEE DONNER PUBLIC UTILITY DISTRICT,
By:
Name:
Its:
Exhibit A,page 4 of 4
EXHIBIT B
Case No.
IDACORP ENERGY L.P., )
CONFESSION OF JUDGMENT
Plaintiff, )
V. )
TRUCKEE DONNER PUBLIC UTILITY )
DISTRICT, )
Defendant. )
Defendant Truckee-Donner Public Utility District("Truckee-Donner"), hereby confesses
judgment, and consents to the entry of the Judgment attached hereto as Exhibit 1, in favor of
Plaintiff IDACORP Energy, L.P. ("IDACORP Energy"), for any unpaid balance of the principal
sum of$26,000,000 on the Promissory Note dated January 3, 2003, together with interest
thereon, and reasonable attorneys' fees, in any action brought by IDACORP Energy for the
enforcement of the Promissory Note dated January 3, 2003.
In addition, Truckee-Donner expressly consents, for any action brought by IDACORP
Energy for the enforcement of the Promissory Note dated January 3, 2003 (1)to accept Service
of Process by United States Mail certified mail, return receipt requested(2) to personal
jurisdiction in the State of Idaho; and(3)to venue in the United States District Court in Idaho, or
if subject matter jurisdiction is lacking, in Idaho state court.
Dated: January 3, 2003
MCDEVITT &MILLER LLP
By
DEAN J. MILLER
Counsel for Defendant
Approved as to form:
Exhibit B,page 1 of 4
Dated: January 3, 2003
By
REX BLACKBURN
GORDON P. ERSPAMER
ROGER E. COLLANTON
MORRISON & FOERSTER LLP
Counsel for Plaintiff
Exhibit B,page 2 of 4
Case No.
IDACORP ENERGY L.P., )
JUDGMENT
Plaintiff, }
V. )
TRUCKEE DONNER PUBLIC UTILITY )
DISTRICT, )
Defendant. )
IT APPEARING TO THE COURT, that defendant Truckee-Donner Public Utilities
District("Truckee-Donner")has confessed to judgment in favor of IDACORP Energy L.P.
("IDACORP Energy"), and has stipulated to the entry of this Judgment;
IT IS HEREBY FINALLY ORDERED,ADJUDGED AND DECREED as follows:
1. The Court has jurisdiction over the parties and the subject matter of this action.
2. Judgment be entered in favor of plaintiff IDACORP Energy and against defendant
Truckee-Donner for any unpaid balance of the principal sum of$26,000,000 on the Promissory
Note dated January 3, 2003.
3. Judgment be entered in favor of plaintiff IDACORP Energy and against defendant
Truckee Donner for accrued interest on any unpaid balance of the principal sum of$26,000,000
at 12%per annum from January 3, 2003 through the date of entry of this Judgment.
4. IDACORP Energy is awarded its costs and reasonable attorneys fees.
Dated:
Hon.
United States District Judge
Exhibit B,page 3 of 4
Approved as to form:
Dated: January 3, 2003
By
DEAN J. MILLER
MCDEVITT &MILLER LLP
Exhibit B,page 4 of 4
EXHIBIT C
FORM OF INVESTOR'S LETTER OF REPRESENTATION
Truckee Donner Public Utility District
11570 Donner Pass Road
Truckee, California 96160
$26,000,000.00 Promissory Note
Ladies and Gentlemen:
The undersigned (the "Investor")hereby acknowledges receipt of the Promissory Note
(the Note) of the face amount of$26,000,000.00 dated January 3, 2003 wherein Truckee Donner
Public Utility District(the "District") appears as maker and IDACORP Energy appears as
obligee/holder.
In connection with the delivery of the Note to the Investor, the Investor hereby makes the
following representations upon which you may rely:
(1) The Investor has authority to accept the Note and to execute this letter and any other
instruments and documents required to be executed by the Investor in connection with the
acceptance of the Note.
(2) The Investor is an"accredited investor"under Regulation D of the Securities Act of
1933, as amended(the "Act") or a"qualified institutional buyer"under Rule 144A(a) of the Act,
and has sufficient knowledge and experience in financial and business matters, including
purchase and ownership of municipal obligations, to be able to evaluate the risks and merits of
the investment represented by the Note; provided further that the Investor is an accredited
investor by reason other than those qualifications contained in Rule 501(a)(6)promulgated under
the Act.
(3) The Note is being acquired by the Investor for investment and not with a present view
to, or for resale in connection with, any distribution of the Note, and the Investor intends to hold
the Note for its own account for an indefinite period of time, and does not intend at this time to
dispose of all or any part of the Note. The Investor understands that it may need to bear the risks
of this investment for an indefinite time, since any sale prior to maturity may not be possible.
(4) The Investor understands that the Note is not registered under the Act and that such
registration is not legally required as of the date hereof; and further understands that the Note (a)
is not being registered or otherwise qualified for sale under the "Blue Sky"laws and regulations
of any state; (b) will not be listed in any stock or other securities exchange, (c)will not carry a
rating from any rating service, and(d) will be delivered in a form which may not be readily
marketable. The Note is being issued under an exemption from the registration and qualification
requirements of the Act and the Blue Sky laws.
Exhibit C,page 1 of 2
(5) The Investor acknowledges that it has either been supplied with or been given access
to information, including financial statements and other financial information, to which a
reasonable investor would attach significance in making investment decisions, and the Investor
has had the opportunity to ask questions and receive answers from knowledgeable individuals
concerning the Note so that as a reasonable investor, the Investor has been able to make its
decision to accept the Note. The Investor acknowledges that it has not relied upon the District
for any information in connection with the acceptance of the Note.
(6) The Investor has made its own inquiry and analysis with respect to the Note and other
material factors affecting payment of the Note. The Investor is aware that the business of the
District involves certain economic variables and substantial risks that could adversely affect the
payment of the Note.
(7) The Investor acknowledges that it has the right to sell and transfer the Note subject to
the delivery to the District of an investor's letter from the transferee to substantially the same
effect as this Investor's Letter, with no revisions except as may be approved in writing by the
District. Failure to deliver such investor's letter to the District shall cause the purported transfer
to be null and void.
Dated:
Very truly yours,
[NAME OF INVESTOR]
By:
Name:
Title:
Exhibit C,page 2 of 2
EXHIBIT D
CONFIRMATION LETTER
Dated December 10, 2002
Including Exhibit A,the Interim Power Supply Agreement
Between
Truckee Donner Public Utility District
And
IDACORP Energy L.P.
Exhibit D,page 1 of 6
�'0AC� IDACORP ENERGY LP
.99ENERGY
350 N.MITCHELL
Boise,0 83704
(FAX)(208)275-8508
December 10,2002
Truckee Donner PUD
Attn: Steve Hollabaugh
Fax: (530)587-1189
CONFIRMATION LETTER
This confirmation letter shall confirm the agreement between Truckee Donner PUD and IDACORP Energy L.P. regarding
the sale of energy under the terms and conditions that follow:
Seller: IDACORP Energy L.P.
Buyer: Truckee Donner PUD
Type of Firm Energy(with liquidated damages)as described in the Western Systems Power Pool Agreement
Commodity: (Effective Date September 1,2002), Schedule C.
Term: December 1,2002 through March 31,2003 Pacific Prevailing Time
Price: $41.62/MWh
Quantity: Full Energy Requirements of Truckee Donner PUD consumers not to exceed 35 MW's per hour
Delivery
Point(s): See attached Exhibit A,which is made a part hereof
Enabling IDACORP Energy L.P.'s Volume 1, Market Rate Tariff. The terms of the WSPP Agreement,to
Agreement the extent referenced in Exhibit A, are incorporated into and made a part of this Interim Power
Supply Agreement.
Special Provisions: See attached Exhibit A,which is made a part hereof. To the extent any terms or conditions of
this Confirmation Letter and Exhibit A are inconsistent with the Enabling Agreement, the terms of this Confirmation
Letter and Exhibit A shall control.
Please confirm that the terms stated herein accurately reflect the agreement between you and IDACORP Energy
L.P. by returning an executed copy of this letter by facsimile to Cheryl Mancini at(208)275-8508. If you do not agree
with any of the terms set out on this confirmation letter, please contact us at(208)275-8432. If you do not object to
the terms in this confirmation letter or respond within five (5) business days, then you will be deemed to have
accepted the terms set out above.
Truckee Donner PUD IDACORP Energy L.P.
Signature: /s/ Signature: /s/
Name:James A.Maass Name:Richard Riazzi
Title: Vice-President,Board of Directors Title:President
Exhibit D,page 2 of 6
EXHIBIT A
Interim Power Supply Agreement
Between
IDACORP Energy LP
and Truckee Donner PUD
1. Point of Delivery: The Primary Point of Delivery(PPOD) for IDACORP Energy deliveries to
TDPUD will be at the transmission interconnection between Idaho Power
Company and Sierra Pacific Power(Midpoint 345 kV/Humboldt 345 kV bus)or at
Gonder/Pavant. The Parties may from time to time mutually agree upon Alternate
Points of Delivery(APOD). IDACORP Energy shall pay for all transmission costs
(including losses)to deliver energy to the PPOD or, subject to agreement of the
Parties,to the APOD. TDPUD shall pay for all other costs beyond the applicable
PPOD/APOD to bring the energy to its load.
2. Quantity and Price: IDACORP Energy will pre-schedule the full energy requirements of TDPUD,not
to exceed 35MW per hour,at the PPOD/APOD defined above. The price for all
energy prescheduled to TDPUD will be$41.62/MWh. In the event TDPUD makes
changes to pre-scheduled deliveries,all additional energy costs associated with the
changes will be passed on at cost to TDPUD. In addition, any imbalance energy
charges imposed by Sierra Pacific as a result of TDPUD load imbalances on the
Sierra Pacific system will be borne by TDPUD.
Energy deliveries pursuant to this Interim Power Supply Agreement shall not be
resold by TDPUD except to TDPUD retail customers; however the foregoing
restriction shall not apply to imbalance energy sales arising pursuant to Sierra
Pacific's OATT.
3. Scheduling: Two scheduling days prior to delivery, on or before HE 1200(PPT), TDPUD,or its
authorized agent, shall provide IDACORP Energy with the schedule(s) for the
upcoming day(s). Both parties will schedule the energy according to standard utility
practices for the Western Electric Coordinating Council.
4. Authority: The individual signing on behalf of each respective Party warrants and represents
that he/she is fully authorized by that individual's respective Party to bind the Party
to the obligations set forth in this Interim Power Supply Agreement consisting of the
Confirmation Letter dated December 10,2002 and this Exhibit A. In addition,each
Party represents to the other that any acts necessary to the valid execution,delivery
and performance of this Interim Power Supply Agreement have been or will be
taken and performed as required under all of its applicable organic statutes,
governing regulations and bylaws.
5. Purpose: The execution,delivery, and performance by TDPUD of this Interim Power Supply
Agreement has been entered into in connection with its ordinary course of business,
is not speculative in nature, and is for the purpose of managing,lowering and/or
Exhibit D,page 3 of 6
fixing TDPUD's borrowing costs and/or TDPUD's exposure to energy price risk.
This Interim Agreement is executed in contemplation of memorializing the
settlement as referenced in Section 7 hereof,and this Interim Agreement is subject
to the terms specified in such section.
6. Responsibility: Each Party to this Interim Power Supply Agreement represents that is capable of
assessing the merits of and understanding(on its own behalf or through independent
professional advice),and understands and accepts,the terms,conditions, and risks
of this Interim Power Supply Agreement.
7. Contingency: This Interim Power Supply Agreement is entered into by the Parties in conjunction
with the ongoing negotiation of and anticipated execution of a Settlement
Agreement that will memorialize the resolution of outstanding disputes which have
arisen between the Parties,including affiliates of IDACORP Energy,relative to
previous energy sale agreements as set forth below("Existing Agreements"). The
Parties have begun and shall continue to negotiate in good faith to successfully
complete and execute a Settlement Agreement prior to December 19, 2002. In
anticipation that a Settlement Agreement will be finalized on or before December
195,2002,the Parties have agreed to,at this time, enter into this Interim Power
Supply Agreement for the delivery of energy to serve Truckee's loads during the
suspension of the Existing Agreements,and to suspend performance under the
Existing Agreements until they are terminated as provided for herein.
If the Parties for any reason fail to execute a Settlement Agreement addressing all
. outstanding disputes between the Parties on or before December 19,2002,then
IDACORP Energy shall have the right, in its sole discretion,to terminate this
Interim Power Supply Agreement upon 5 Business Days' prior written notice to
TDPUD, and upon such termination,the obligations of the Existing Agreements
shall be reinstated in full. In such event, TDPUD shall pay IDACORP Energy for
all power delivered under this Interim Power Supply Agreement at the rates
provided for in the Existing Agreements. In addition, TDPUD shall also be
obligated to pay an amount equal to the difference between the rate specified in the
Existing Agreements and the rate under this Interim Power Supply Agreement for
any volumes of power that TDPUD would have been required to take and pay for
under the Existing Agreements,which are above the quantities for the same period
that were scheduled and delivered under the Interim Power Supply Agreement.
The Existing Agreements are as follows:
• July 1, 1997 Agreement for the Sale and Purchase of Firm Capacity and
Energy,between Idaho Power Company and TDPUD, as amended;
• April 22, 2000 Transaction Confirmation between Idaho Power and TDPUD
(5MW flat);
• March 1, 2001 Transaction Confirmation between Idaho Power and TDPUD
(1 OMW, LL and 20MW HL); and
• March 15 2001 Transaction Confirmation between Idaho Power and TDPUD
(25MW flat).
• August 28, 2002 Transaction Confirmation between TDPUD and Idacorp
Energy(5MW LL)
• August 28,2002 Transaction Confirmation between TDPUD and Idacorp
Energy(5MW HL)
Exhibit D,page 4 of 6
• September 19,2002 Transaction Confirmation between TDPUD and
Idacorp Energy(3MW HL)
In the event of the reinstatement of the Existing Agreements,this Confirmation
Letter and Exhibit A shall not be deemed to amend the terms and conditions of said
Existing Agreements.
8. Additional Terms: The Parties hereby incorporate by reference herein, and make a part of this Interim
Power Supply Agreement,the terms of the Western Systems Power Pool Agreement,
Effective Date September 1, 2002 with the exception of the following specified
provisions:
Section 1 ("Parties")
Section 2 ("Recitals")
Section 5 ("Term and Termination")
Section 6 (Service Schedules and WSPP Default Transmission Tariff')
Section 7 ("Hub and Operating Agent")
Section 8 ("Organization and Administrative")
Sub-sections 13.2, 13.3 and 13.4 of Section 13 ("Approvals")
Section 16("Membership")
Subsection 22A("Default in Payment of WSPP Operating Costs")
Section 34("Dispute Resolution")
Section 40("Execution by Counterparts")
Section 41 ("Witness")
Exhibit D("WSPP Mediation and Arbitration Procedures")
Regarding Section 21.3 ("Liability and Damages"), any calculation of
liquidated damages hereunder shall be based upon the actual loads of Truckee
Donner or a reasonable estimate of those loads should actual data not be
available.
Regarding Section 27 ("Creditworthiness),Truckee Donner agrees to
maintain the current Letter of Credit in the amount of$1.5MM(the"LOC")
during the term of this Interim Agreement and to obtain any necessary
amendment to such LOC to make it applicable to this Interim Power Supply
Agreement. In consideration of such action by Truckee Donner,barring a
material change in the financial condition of Truckee Donner,IDACORP
Energy agrees not to demand any additional performance assurances pursuant
to this Section.
The Parties intend to make the referenced and incorporated provisions binding upon
them for purposes of this Interim Power Supply Agreement notwithstanding the lack
of membership of any Party in the WSPP at any time during the term of this Interim
Power Supply Agreement.
Addresses for bills,payments and notices are provided in the attached schedule.
9. FERC Standard
Of Review: Absent the agreement of all Parties to the proposed change,the standard of
review for changes to any section of this Interim Power Supply Agreement or,
Exhibit D,page 5 of 6
with respect to this Interim Power Supply Agreement,any section of the
Enabling Agreement specifying the rate(s)or other material economic terms and
conditions agreed to by the Parties herein,whether proposed by a Party, or non-
party or FERC acting sua sponte, shall be the"public interest" standard of
review set forth in United Gas Pie Line Co. v.Mobile Gas Service Corp., 350
U.S. 332 (1956)and Federal Power Commission v. Sierra Pacific Power Co.,
350 U.S. 348(1956) (the"Mobile-Sierra"doctrine).
The Parties intend that the foregoing paragraph bind all regulatory bodies as
well as one another. If,notwithstanding the foregoing,a change in rates or other
material economic terms and conditions is ordered by the FERC or other
authority competent to require such changes,the Parties agree to restore one
another to the economic values set forth in this agreement to the fullest extent
possible.
The Parties expressly waive their rights to seek any change to this Interim Power
Supply Agreement or the Enabling Agreement under Section 205 or 206 of the
Federal Power Act.
10. Jurisdiction
and Venue: Any action or proceeding arising out of this Interim Power Sales Agreement shall
be filed and adjudicated only in the United States District Court for the District of
Idaho. TDPUD expressly consents to personal jurisdiction in Idaho. With the
exception of the specification of standard of review and waiver of rights to
challenge the rates,terms or conditions of this Interim Power Sales Agreement
under Federal Power Act Section 205 or 206 contained in Section 8 hereof,this
paragraph shall not be deemed to restrict either Party's right to exercise any
rights it may otherwise have pursuant to the Federal Power Act.
Exhibit D,page 6 of 6
EXHIBIT E
Rex Blackburn,ISB#3170
BLACKBURN & JONES LLP
1101 W. River Street, Suite 220
Post Office Box 7808
Boise, Idaho 83707
Telephone: (208) 489-8989
Facsimile: (208) 489-8988
Gordon P.Erspamer, CSB #83364
Roger E. Collanton, CSB #178831
Rebecca D. Kruse, CSB#209092
MORRISON & FOERSTER LLP
101 Ygnacio Valley Road, Suite 450
Walnut Creek, California 94596-8130
Telephone: (925) 295-3300
Facsimile: (925) 946-9912
Attorneys for Plaintiff
IDACORP ENERGY, L.P.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
Case No. 02-CV-282
IDACORP ENERGY L.P., )
STIPULATION OF DISMISSAL
Plaintiff, )
V. )
TRUCKEE DONNER PUBLIC UTILITY )
DISTRICT, )
Defendant. )
TRUCKEE DONNER PUBLIC UTILITY )
DISTRICT, )
Counterclaimant, )
V. )
IDACORP ENERGY L.P., IDAHO POWER )
COMPANY, and IDACORP, INC. )
Counterdefendants. )
Exhibit E,page 1 of 2
IT IS HEREBY STIPULATED by and between the parties to this action,by and
through their respective counsel, that the entirety of the above-entitled action including all claims
and counterclaims,be dismissed with prejudice, on the grounds and for the reasons that the same
have been fully compromised and settled under Federal Rules of Civil Procedure 41(a)(2),with
all parties to bear their own fees and costs.
Dated: January 3, 2003
BLACKBURN &JONES LLP
By
REX BLACKBURN
GORDON P. ERSPAMER
ROGER E. COLLANTON
MORRISON & FOERSTER LLP
Counsel for Plaintiff
Dated: January 3, 2003
By
DEAN J. MILLER
MCDEVITT & MILLER LLP
Counsel for Defendant
Exhibit E,page 2 of 2
EXHIBIT F
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Truckee Donner Public Utility District
V. Docket No. EL02-108-000
Idaho Power Company, IDACORP
Energy, L.P., and IDACORP, Inc.
JOINT NOTICE OF WITHDRAWAL
On July 23, 2002, the Truckee Donner Public Utility District("Truckee") submitted in
the above-captioned proceeding a COMPLAINT OF TRUCKEE DONNER PUBLIC UTILITY DISTRICT
AGAINST IDAHO POWER COMPANY ETAL. FOR RELIEF UNDER LONG-TERM POWER-SUPPLY
CONTRACT. On August 12, 2002,respondents IDACORP Energy, Idaho Power Company, and
IDACORP Inc. (collectively, "the Idaho Parties") filed an Answer to Truckee's complaint. On
August 27, 2002, Truckee filed a reply to the Idaho Parties' motions to dismiss included in their
Answer. The Commission has taken no action in the case other than issuing notice of the filing
of the complaint.
Truckee and the Idaho Parties, the sole parties in interest in this proceeding,have reached
a settlement of the dispute set forth in the July 23 complaint, as well as other matters in dispute
between them. Pursuant to that settlement, which resolves the parties' disputes, including those
underlying the July 23 complaint in this docket, Truckee and the Idaho Parties hereby provide
notice of withdrawal, with prejudice, of Truckee's Complaint, the Idaho Parties' Answer, and
Truckee's reply thereto, pursuant to Rule 216 of the Commission's Rules of Practice and
Procedure, 18 C.F.R § 385.216. The Idaho Parties have authorized undersigned counsel for
Exhibit F,page 1 of 2
Truckee to submit this joint notice of withdrawal on behalf of the Idaho Parties with respect to
their August 12 Answer.
Respectfully submitted,
Margaret A. McGoldrick
Jeffrey A. Schwarz
Attorneys for Truckee Donner Public Utility
District
Law Offices of:
Spiegel &McDiarmid
1333 New Hampshire Avenue,NW
Washington, DC 20036
(202) 879-4000
January 3, 2003
CERTIFICATE OF SERVICE
I hereby certify that I have on this_day of January, 2003, caused the foregoing
document to be sent by first-class mail to all parties on the list compiled by the Secretary of the
Commission in this proceeding.
Margaret A. McGoldrick
Law Offices of:
Spiegel & McDiarmid
1333 New Hampshire Avenue,NW
Washington, DC 20036
(202) 879-4000
Exhibit F,page 2 of 2
EXHIBIT G
UNITED STATES OF AMERICA
BEFORE THE
FEDERAL ENERGY REGULATORY COMMISSION
Garnet Energy LLC I Docket No. ER02-1119-002
NOTICE OF WITHDRAWAL OF PROTEST AND REPLY
On July 11, 2002, Garnet Energy LLC ("Garnet"), a subsidiary of IDACORP Inc. and an
affiliate of Idaho Power Company and IDACORP Energy, submitted a Supply Margin
Assessment("SMA") in the above-captioned proceeding in support of its request for approval of
market-based rate authority. On August 1, 2002, the Truckee Donner Public Utility District
("Truckee") submitted a motion to intervene and protest challenging the SMA filing. On August
309 2002, Truckee submitted a reply to the answer Garnet has submitted in response to Truckee's
protest. The Commission has taken no action in this phase of the proceeding other than issuing
notice of the filing of Garnet's SMA filing. Pursuant to a settlement between Truckee and
certain affiliates of Garnet, Truckee hereby provides notice of withdrawal, with prejudice, of its
protest and reply in this proceeding,pursuant to Rule 216 of the Commission's Rules of Practice
and Procedure, 18 C.F.R § 385.216.
Respectfully submitted,
Margaret A. McGoldrick
Jeffrey A. Schwarz
Attorneys for Truckee Donner Public Utility
District
Exhibit G,page 1 of 2
Law Offices of:
Spiegel &McDiarmid
1333 New Hampshire Avenue,NW
Washington, DC 20036
(202) 879-4000
January 3, 2003
CERTIFICATE OF SERVICE
I hereby certify that I have on this_day of January 2003, caused the foregoing
document to be sent by first-class mail to all parties on the list compiled by the Secretary of the
Commission in this proceeding.
Margaret A. McGoldrick
Law Offices of:
Spiegel &McDiarmid
1333 New Hampshire Avenue,NW
Washington, DC 20036
(202) 879-4000
Exhibit G,page 2 of 2
EXHIBIT H
RESOLUTION NO. 02-
of the
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
Approving the Mutual Release and Settlement Agreement
by and between
Truckee Donner Public Utility District
and
Idaho Power Company,IDACORP Energy L.P. and IDACORP,Inc.
Exhibit H,page 1 of 4
EXHIBIT I
Opinion of Counsel to
Truckee Donner Public Utility District
Regarding
Mutual Release and Settlement Agreement
Exhibit I,page 1 of 3
y•..ivwn..
KELLEY R.CARROLL*H ANDREW J.MORRIS*
PETER H.CUTTITTA* JAMES L.OLMSTEDHH
STEVEN C.GROSS* Law Office Of KENNETH P.CRAIG*
STEPHEN C.LIEBERMAN Porter • Simon RINKY S.PARWANI
JAMES L.PORTER JR.* Professional Corporation JULIA S.BURT**
JAMES E.SIMON
*ALSO LICENSED IN NEVADA
REPLY TO TRUCKEE HCERTIFIED SPECIALIST IN ESTATE
OFFICE January 2,2003 PLANNING, TRUSTS AND PROBATE
PETER H.CUTTITTA* LAW
C ❑ALSO LICENSED IN NEVADA,
OREGON
AND WASHINGTON
** ALSO CERTIFIED PUBLIC
ACCOUNTANT
Idaho Power Company
IDACORP Energy L.P.
IDACORP Inc.
Re: Mutual Release and Settlement Agreement
Ladies and Gentlemen:
I am General Counsel to the Truckee Donner Public Utility District ("District") and have
served in that capacity in connection with the negotiation of and approval by the District of the
Mutual Release and Settlement Agreement dated January, 3 2003 by and between the District
and Idaho Power Company, IDACORP Energy L.P. and IDACORP Inc. ("Agreement").
I have examined, among other things, the California Public Utilities District Act, the
Agreement, including the Promissory Note attached thereto ("Promissory Note"), the
proceedings of the District's Board of Directors with respect to the approval of the Agreement
and have made such other examination of applicable California law as I have deemed necessary
in giving this opinion.
The opinions expressed herein are based on an analysis of existing laws, regulations,
rulings and court decisions. Such opinions may be affected by actions taken or omitted or events
occurring after the date hereof. I have not undertaken to determine or to inform any person,
whether any such actions are taken or omitted or events do occur. I disclaim any obligation to
update this opinion. I have assumed the genuineness of all documents and signatures presented
to me (whether as originals or as copies) and the due and legal execution and delivery thereof by,
and validly against Idaho Power Company, IDACORP Energy L.P. and IDACORP Inc.
Based on and subject to the foregoing, I am of the opinion that:
Exhibit I,page 2 of 3
t
1. The District is a public utility district duly created, organized and existing under
the California Public Utilities District Act and the laws of the State of California.
2. The Agreement, including the Promissory Note,has been duly approved,
executed and delivered by the District and constitutes a legal, valid and binding
agreement of the District, enforceable against the District in accordance with its
terms, except that the rights and remedies set forth therein may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors' rights
generally.
This opinion is being rendered to you solely for your benefit and the benefit of your
assigns of the Promissory Note and may not be relied on by anyone else without my prior written
consent.
Very truly yours,
PORTER ' SIMON
Professional Corporation
STEVEN C. GROSS
gross@portersimon.com
Cc: Truckee Donner Public Utility District
McDevitt&Miller, LLP
Spiegel &McDiarmid
Exhibit I,page 3 of 3
EXHIBIT J
1. RESOLUTION OF THE BOARD OF DIRECTORS OF IDACORP,INC.
Regarding
Mutual Release and Settlement Agreement
2. CONFIRMATION OF SIGNATURE AUTHORITY LETTERS
From
Counsel to IDACORP Energy L.P. and
Counsel to Idaho Power Company and IDACORP, Inc.
Exhibit J,page 1 of 3
STATE OF IDAHO )
COUNTY OF ADA ) ss.
CITY OF BOISE )
I, ROBERT W. STAHMAN, the undersigned, Secretary of IDACORP, Inc., do
hereby certify that the following constitutes a full, true and correct copy of resolutions adopted at
a meeting of the Board of Directors on November 21, 2002, regarding the resolution and
dismissal by settlement of all disputes between Truckee-Donner Public Utility District and
IDACORP, Inc., Idaho Power Company and IDACORP Energy, L.P., and that said resolutions
have not been amended or rescinded and are in full force and effect on the date hereof.
IN WITNESS WHEREOF, I have hereunto set my hand this day of
December, 2002.
/s/Robert W. Stahman
Secretary.
(CORPORATE SEAL)
RESOLVED, That the Board of Directors hereby determines that the
resolution and dismissal by settlement of all disputes between Truckee-Donner
Public Utility District (Truckee-Donner) and IDACORP, Inc., Idaho Power
Company and IDACORP Energy, L.P. (collectively the "Corporation") is in the
best interest of the Corporation. These disputes include ongoing litigation in U.S.
District Court for the District of Idaho as well as regulatory proceedings before
the Federal Energy Regulatory Commission, relating to issues arising out of a
series of power sales agreements including the Agreement for the Sale and
Purchase of Firm Capacity and Energy between Truckee-Donner and Idaho Power
Company, as amended; a Transaction Confirmation dated April 22, 2000 between
Idaho Power Company and Truckee-Donner; and two Transaction Confirmations
both dated March 1, 2001 between Idaho Power Company and Truckee-Donner;
and be it
FURTHER RESOLVED, That the officers of the Corporation have had
settlement discussions with Truckee-Donner and have presented to the Board of
Directors the basic terms and conditions surrounding a settlement proposal which
both sides have tentatively agreed to, and be it
FURTHER RESOLVED, That the proper officers of this Corporation be,
and they hereby are, authorized and empowered in the name and on behalf of the
Corporation to do or cause to do any and all acts and things as they may deem
necessary or desirable to conclude the proposed settlement based upon the terms
and conditions presented to this Board of Directors
Exhibit J,page 2 of 3
ENERGY
JAMES R. THOMPSON
Vice President, General Counsel & Secretary
(208) 275-8312
Facsimile (208) 275-8475
jthompson@idacorpenergy.com
January 3, 2003
Truckee Donner Public Utility District
11570 Donner Pass Road
Truckee, California 96160
Re: Mutual Release and Settlement Agreement
Ladies and Gentlemen:
I am the Vice-President, General Counsel and Secretary of IDACORP Energy L.P.
("IDACORP Energy") and have served in that capacity with regard to the negotiation of and approval by
IDACORP Energy of the Mutual Release and Settlement Agreement dated January 3, 2003 by and
-etween Truckee Donner Public Utility District and IDACORP Energy("Settlement Agreement").
Regarding the execution of the Settlement Agreement by IDACORP Energy, this is to
confirm that Richard Riazzi is the President of IDACORP Energy and has the authority to sign the
Settlement Agreement on behalf of IDACORP Energy pursuant to his position as President of
IDACORP Energy and based upon the resolution of the Board of Directors of IDACORP, Inc. dated
November 21, 2002 authorizing the settlement of this matter. Upon its full execution and delivery the
Settlement Agreement shall constitute a legal, valid and binding agreement enforceable against
IDACORP Energy in accordance with its terms.
Sincerely,
James R. Thompson
Exhibit J, page 3 of 3
Sent By: MCDEVITT & MILLER LLP; 208 336 6912; Jan-27-03 3:41PM; Page 2/6
15:21 JAN 27, 2003 TO: CHARLES F MCDEVITT FR: U.S, COURTS F HX NU 11 1 r cc rrx c• i
I
f�l e
T
To: CHARLES F MCDEVITT
Company 14CDEVITT & MILLER
Fax Number ' 12063366912
Phone Number
From : U.S. Courts FAX Notice
Fax Number : (208) 334-9033
Phone Number (208) 334-1361
Time 'Sent Monday, Jan 27, 2003 03:20PM
Pages : 5
Description : 1: 0 2-CST-2 8 2, DOC: 32 , QUE ID; 84177
Case Dlumber: 1:02-ev-282 Document Number: 32
Sent By: MCDEVITT & MILLER LLP; 208 336 6912; Jan-27-03 3:42PM; Page 3/6
15:21 .TAN 27, 200310' CHARLES E MCD VIIT ER: I(44. EM7-r- . t
Rex Biackbum TSB#3170
BLACKBURN &JONES LLP
1101 W.River Strcct,SUite 220 ''^ 0
Past Office Box 7808
Boise, Idaho 83707
Telephone: (208)489-8989 =,
Facsimile: (208)489-8988
Gordon P. Erspamer,CSB 083364
Roger E. Collanton,CSB#178831
Rebecca Kruse,CSB#209092
MORR.ISON & FOERSTER LLP
10 1 Y gnacio Valley Road, Suite 450
Walnut C'rcek, California 94596-8130
Telephone- (925) 295-3300
Facsimile: (925) 946-9912
Attorneys for PlaintiffICounterdefendants IDACORP Energy L.P.,
Idaho Power Company,and IDACORP,Ioc.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF iDAHO
TDACORP ENERGY L.F.,
Case No. 02-CV-282-S-BLW
Plaintiff,
VS. ORDER FOR DISMISSAL,
TRUCKEE-DOWNER PUBLIC UTILITY DISTRICT,
WITH PREJUDICE
V('r
.:>
Defmdunt-
TRUCKEE-DOWNER PUBLIC UTILITY DISTRICT,
CountcmWmant,
VS.
TDACORP ENERGY L.P.;ID,ANO POWER
COMPANY: and TDACORP,INC.,
Counterdefendants.
ORDER FOR DISMISSAL WITH PRPJIJDT(:P. 1
Sent By: MCDEVITT 8. MILLER LLP; 208 336 6912; Jan-27-03 3:42PM; Page 4/6
REFS F MCDEVITT ER' U.S. GQ_URTS_LH?�,..,NQ.lJ
f
T3118 MATTER having come before the Court pursuant to the Stipulation of the parties
hereto, executed January 3, 2003, and good cause appearing therefor,
IT IS IIERFBy ORDERED that the entirety of the above-entitled action, including all
claims and counterclaims,be dismis®ed with preiucliee on the grounds and for the reasons that the
same have been Cully compromised and settled under Federal Rule of Civil procedure 41(a)(2).with
all Parties to bear their own fees and costs.
DATED this �7, day of January,2003.
B. LYNN WINMILL.DISTRICT JUDGE
ORT)FR FOP,UISmISSAL WITH PREJUDICL-2
Sent By: MCDEVITT & MILLER LLP; 208 336 6912; Jan-27-03 3:42PM; Page 5/6
— 15,L?l 3AN 21_..,Z003 TO: CMGSLES F MCDFYTTT F ' 1J S. VG-1
0 • dkh
Unit"d States District COUr..t
for the
District of Idaho
January 27, 2003
* * CLERKIS CERTIFICATE OF MAILING
Re; 1 :02-cv-00282
I certify that I caused a COPY of the attached document to be mailed or faxed
to the fallowing named persona :
Rex Blackburn, Esq. 1-208-499-8988
SLACKBURN & JONES
PO Box 7808
Boise, ID 83707
Paul J Augustine, Esq. 1-206-489-8988
BLACKBURN & JONES
PO Box 7806
Boi oe, ID 83707
Roger E Collanton, Esq. 1-925-946-9912
MORR I S ON & FOERSTER
PO Box 8130
WalnuL Creek, CA 94596-9130
Gordon P Ezspamer, Esq, 1-925-946-9912
MORRI SON & FOERSTER
PO Box 9130
Walnut Creek, CA 94596-8130
Rebecca Kruse, Esq.
MORRISON & FOERSTER
Po Box 6130
Walnut Creek, CA 94596-8130
Dean J Miller, Esq. 1 ...206-336-6912
MCDEVITT & MILLER
PO Box 2564
Boise, ID 83702
Charles F McDevitt . Esq. 1-208-336--6912
MCDEVITT & MILLER
PO Box 2564
Boise, ID 83702
Margaret A McGoldrick, Esq. 1-202-393-2866
SPIEGRL & MCDIARMID
1350 New York Ave NW #1100
Washington, DC 20005
Jeffrey Schwarz, Esq.
Sent By: MCDEVITT & MILLER LLP; 208 336 6912; Jan-27-03 3:42PM; Page 6/6
15:22_ JAI 27, 2003 TO: CHARLES F MCDEVITT FR: U.S, COUR f 5 F HX Nu i 1 v 1 r 4e- rrlzt Z>
SPIEGEL & MCDIARM sk
1350 New York Ave #1100
Washington, DC 20005
Chief Judge B. Lynn Winmill,
—Judge Edward J. Lodge
Chief Magistrate Judge Larry M Boyle
—'""Magistrate Judge Mikel H . Willia►me
Vis Ling Judges :
Judge David 0. Carter
Judge John C. Coughenour
Judge Thomas S. Zilly
Cameron S_ Burke, Clerk
v��:0 BY;
Date: pepu y Clerk)
01-03-2003 13:38 FROM-PORTER-SIMON 5305871316 T-202 P.007/016 F-363
KELLEY R.CARROLVT '" ANRREW J.MORRLS•
PETER R.CLTTITTAr Law Office Of JAMEs L.OLMs=n
STEVEN C.GROSS" KENNETti P.CRAIG'
STEPHEN C.LIEBERMAN PORTER 9 SIMON RINKY S.PARWANI
,TAMES L PORTERJR.,r JULIA S.BURT••
JAMES E.SIMON Professional Corporation
'ciao Licensed in Nevada
Reply to 7y-uckee Dice _ TCcr6fiea Spociatias in Esiare
Pianning. 'gusts and Frobacc Law
January 3,2003 T TA6o Licensed to Neva&Otogon
and Washinguon
••A190 Camilita Public AccOMwnt
Idaho Power Company
1220 W. Idaho St.
Boise, ID 83702
IDACORP Energy L.P.
350 N.Mitchell
Boise, ID 83707
IDACORP Inc.
1220 W. Idaho St.
Boise, ID 83702
Re: Mutual Release and Settlement Agreement
Ladies and Gentlemen:
I am General Counsel to the Truckee Donner Public Utility District("District") and have
served in that capacity in connection with the negotiation of and approval by the District of the
Mutual Release and Settlement Agreement dated January,3 2003 by and between the District
and Idaho Power Company,IDACORP Energy L.P. and IDACORP Inc. ("Agreement").
I have examined, among other things,the California Public Utilities District Act,the
Agreement, including the Promissory Note attached thereto ("Promissory Note'),the
proceedings of the District's Board of Directors with respect to the approval of the Agreement
and have made such other examination of applicable California law as I have deemed necessary
in giving this opinion.
The opinions expressed herein are based on an analysis of existing laws,regulations,
rulings and court decisions. Such opinions may be affected by actions taken or omitted or events
occurring after the date hereof. I have not undertaken to determine or to inform any person,
whether any such actions are taken or omitted or events do occur. I disclaim any obligation to
update this opinion. I have assumed the genuineness of all documents and signatures presented
TRUCK.EE OFFICE 40200 T uckcc Airport-[Rd 'Truckee,Califonita 96161 (330)587.2002 Fax(530)587-1316
KENO OFFICE - Twentieth Ccntury Building- 335 W.First Sueet- Reno.Nevada 89503 -(775)322-6767
SOUTH LAKE TAHOE OFFICE 2269 James Avenue South Lake Tahoe,Califomitz 96150 (530)541-8392
www-nnrrer.ippon-rpm
01-03-2003 13:38 FROM-PORTER-SIMON 5305871316 T-202 P-008/016 F-363
January 3, 2003
Page 2
to me(whether as originals or as copies) and the due and legal execution and delivery thereof by,
and validly against Idaho Power Company,IDACORP Energy L.P. and IDACORP Inc.
Based on and subject to the foregoing, I am of the opinion that:
1. The District is a public utility district duly created,organized and existing under
the California Public Utilities District Act and the laws of the State of California.
2. The Agreement, including the Promissory Note,has been duly approved,
executed and delivered by the District and constitutes a legal,valid and binding
agreement of the District, enforceable against the District in accordance with its
terms, except that the rights and remedies set forth therein may be limited by
bankruptcy, insolvency,reorganization or other laws affecting creditors' rights
generally.
This opinion is being rendered to you solely for your benefit and the benefit of your
assigns of the Promissory Note and may not be relied on by anyone else without my prior written
consent.
Very truly yours,
PORTER ' SWON
Professional Corporate
v
S1 EN C. GROSS
gross@portersimon.com
Cc: Truckee Donner Public Utility District
McDevitt &Miller,LLP
Spiegel&McDiarmid
01-03-2003 13:38 FROM-PORTER-SIMON 5305871316 T-202 P.004/016 F-363
DONNERTRUCKEE
RESOLUTION NO. 2003- 04
OF THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT
APPROVING THE MUTUAL RELEASE AND
SETTLEMENT AGREEMENT
BY AND BETWEEN THE
TRUCKEE DONNER PUBLIC UTILITY DISTRICT,
IDAHO POWER.COMPANY, IDACORP ENERGY L.P., AND IDACORP, INC.
WHEREAS,pursuant to the Agreement for the Sale and Purchase of Firm Capacity and Energy
effective July 1, 1997 by and between the Truckee Donner Public Utility District("District") and
Idaho Power Company,as amended on January 1, 1999,April 21, 2000,and March 2, 2001 and
as supplemented by various related transaction confirmations ("Power Contract"),which was
assigned by Idaho Power Company to IDACORP Energy L.P., the District is obligated to
purchase a 25 megawatt block of power(that includes power to meet the District's load
requirements and some surplus power) at the price of$72 per megawatt hour through 2009; and
WHEREAS, on or about May 7, 2002,the District notified Idaho Power Company that it
considered Idaho Power Company and IDACORP Energy, L.P. to be in breach of the Power
Contract and that all payments made by the District pursuant to the Power Contract after January
1,2002 and all future payments to be made pursuant to the Power Contract were and would be
made"under protest;"and
WHEREAS,initial efforts by the District to informally resolve its dispute with Idaho Power
Company and IDACORP Energy, L.P. were unsuccessful; and
WHEREAS, on May 30, 2002 IDACORP Energy, L.P. filed a lawsuit against the District in
Idaho state court seeking a court declaration that IDACORP Energy, L.P. was not in breach of
the Power Contract and the District subsequently removed the case to federal court in the State of
Idaho and filed counterclaims alleging that Idaho Power Company, IDACORP Energy, L. P. and
IDACORP, Inc. ("Idaho Parties") were in breach of the Power Contract("Action"); and
WHEREAS,the District intervened and filed protests in a case filed at the Federal Energy
Regulatory Commission("FERC") in which Garnet Energy LLC,an affiliate of Idaho power
Company, filed an application for limited market-based rate authority("Garnet proceeding"),-
and
WHEREAS, on or about July 23,2002,the District filed a complaint with the FERC seeking
reformation or termination of the Power Contract and other relief("FERC Complaint"); and
WHEREAS,the District and the Idaho Parties have negotiated a Mutual Release and Settlement
Agreement in which the parties agree to settle and resolve all of the claims against each other
ExhibiT H,page 2 of 4
_.......,_,.a....._..e..,...�..�� ..e.... ..�.w�.waww..ae:a�:, eu..w...........,k.:i..w..r._i.n.w F,,.. .. .... ...... .... _.i.:...._ .,... _,......,.... .. . ...».............w.....«vw........+rm.....sr,.+.rw.aaab...+.«+...r.mw�� _ ___�
01-03-2003 13:38 FROM-PORTER-SIMON 5305871316 T-202 P-005/016 F-363
arising from or relating to the Power Contract as alleged in the Action,the Garnet Proceeding
and the FERC Complaint, and to cancel the Power Contract("Settlement Agreement"); and
WHEREAS,effective December 1, 2002, the District and IDACORP Energy, L.P. entered into
an Interim Power Supply Agreement pursuant to which the District will purchase power and
energy from IDACORP Energy, L.P. in amounts necessary to serve the District's load
requirements through March 31, 2003 ; and
WHEREAS,it is in the best interests of the District to enter into the Settlement Agreement
because it will result in cancellation of the Power Contract and the District's obligation to
purchase power(including power surplus to Truckee's load requirements)at the contractual rate
and allow the District to purchase power at current market rates to meet its load requirements;
and
WHEREAS, it is in the best interests of the District to enter into the Settlement Agreement
because it is expected that the combined cost to the District to purchase power after cancellation
of the Power Contract and the cost to pay its obligations to the Idaho Parties pursuant to the
Settlement Agreement will be less than the price that the District would pay for power pursuant
to the Power Contract.
NOW, THEREFORE,BE IT RESOLVED that the Board of Directors adopts the above
recitals as its findings; and
BE IT FURTHER RESOLVED by the Board of Directors that it approves the Settlement
Agreement and directs the President of the Board to execute it.
PASSED AND ADOPTED by the Board of Directors at a meeting duly called and held within
the District on the 2nd day of January, 2003 by the following roll call vote:
AYES: Directors Aguera, Hemig, Maass, Sutton and Van Gundy
NOES: None
ABSENT:None
Exhibit H,page 3 of 4
01-03-2003 13:38 FROM-PORTER-SIMON 5305871316 T-202 P-006/016 F-363
TRUCKEE DDNNER PUBLIC UTILITY DISTRICT
By
I 1kortA Hemig, PresidenT of the Board7
ATTEST:
Peter L.HolzmeisT ,Clerk of the Board
I hereby certify that this is a true and correct copy of Resolution No. 2003-04-passed and
adopted by the Truckee Donner Public Utility District Board of Directors on the 2"°day of
I
nua 2003.
00�12,4,- . -A
Peter t HIol e T ,Clerk o the Board
Exhibit H,page 4 of 4
01-03-2003 14:27 FROM-PORTER-S I MON 5305871316 T_204 P.003/007 F-367
k„ate..
LEBoEUFI LAMB,GREENE &MACRAE L.LP
0-102
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Bweys"�.Op
EnergyL.P.,Idahoco
and EDACORP Inc.
MUTUAL RELEASE AM SETTLEMENT AGREEMENT
Page 16 of 16
TQTAL� P.02
01-03-2003 14:28 FROM-PORTER-SIMON 5305871316 T-204 P.004/007 F-367
Appmved as to fo=.
MCDEVM&NV1 LLIF
Hy-
Aaameys for Trv*er Dormer Public Utility
District
FORM SIMON
Hy,
Atwmeys for Tnickeemono"%blic U lip►
District
SPMGEL&aRca �
BY
Arwmcys ftr=tueke0Uonva Public Volily
DISTicz
MoRMSON&FOERSTER LLP
Sy:
AttamBys for DIDACORP Enagy L.P.,Nebo
Power Company and IDaCDv Inc.
BYACICSIJBIV&IONO W
4'Arta y9 for CARP Faa=y L.P.,Idabo
Power Comp=y and IDACORP iae.
MUTUAL RELEASE AND SE TLEMWT AGnEMVT
Page IS of 16
01-03-2003 14:28 FROM-PORTER-SIMON 5305871316 T-204 P-005/007 F-367
Approved as to form:
MCDEVr rT &MILLER LLP
Attorneys for Truckee-Donner Public Utility
District.
PORTBR SIMON
By:
Attorneys for Truckee-Donner Public Utility
District
SPIEGEL&MCDIARMM
t
By
Attorneys for Truckce-Do=a Public Utility
District.
MORRISON&FOERSTER LLP
;q,a, P'. 0
By:
Attorneys for IDACORP EaaW LA,Idebo Power
Company and IDACORP Inc.
BLACKBURN&JONES LLP
By.
Attomays for IDACORP Energy L.P.,Idaho
Power Company and MACORP Inc.
MUTI.TAL RELEASE AND SETTLEMENT AGREEMENT
Page 15 of 16
01-03-2003 14:28 FROM-PORTER-SIMON 5305871316 T-204 P.006/007 F-367
IN WITNESS HEREOF this Settlement Agreement is executed and agreed to by the
following,as of January 3,2003,
IDACORP E $y L.P.
By:
Name: Richard Riazzi
Title: President
Idaho Power Company
By:
Name: J. LaMont Keen
Title: President and Chief Operating Officer
IDACORP, Inc.
By:
Name: J.8.Packwood
Title: President and Chief Eaecuiive Off ccr
Truckee-Donner Public Utility District.
By:
Name: J.Ronald Hemig
Title: President,Board of Directors
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Page 14 of 16
01-03-2003 14:28 FROM-PORTER-SIMON 5305871316 T-204 P.007/007 F-367
IN WITNESS WBERROF this Settlesrent AgMament is executed and agrced to by rho
following, as of January 3,2003.
IDACORP Energy L.P.
By:
Name: Richard Riazzi
71tlo: President
Idaho Paver Comp=y
By:c.::2 ig n?m'of�roei-"00'
Nam: J.IAMom Keen
Title: President and Chief Operating Officer
IDACORP,I=.
By.
N,jgre: L S_Packwood
Title: President and Chief Executive Offices
Truckee-Donner Public Utility District.
By:
Namc: J.Ronald Henn g
Title: President,Board of Directors
MUTUAL FJUXA►SB AND SETTLEMENT AGREEMENT
Page 14 of 16
01-03-2003 14:51 FROM-PORTER-51MON 5305871316 T-205 P-003/003 F-369
"ENtRGY
JAMES R.THOMPSON
VIGe PresTaenl
General Counsel&secretary
January 3,2003
Truckee Donner Public Utility District
11570 Donner Pass Road
Truckee, California 96160
Re: Mutual Release and Scttletaent Agreatnent
Ladies and Gcnrlcmcn:
i am the Vice-President, General Counsel and Secretary of IDACORP Energy L.P.
("IDACORP Energy") and havc served in that capacity with regard to the negotiation of and approval by
IDACORP Energy of the Mutual Release and Settlement Agreement dated January 3, 2003 by and
between Truckee Donner Public Utility District and IDACORP Energy ("Settlement Agreement"),
Regarding the execution of the Settlement Agreement by IDACORP Energy, this is to
confirm that Richard Riazzi is the President of IDACORP Energy and has the authority to sign the
Settlement Agreement on behalf of IDACORP Energy pursuant to his position an President of
IDACORP Encrgy and based upon the resolution of the Board of Directors of IDACORP, Inc, dated
November 21, 2002 authorizing the settlement of this matter. Upon its full execution and delivery the
Settlement Agreement shall constitute a legal, valid and binding agreement enforceable against
IDACORP Energy in accordance with its terms.
Slncerel
f
1 •
Barnes R. Thompson
Y
350 N. Mitchell St.. Boise. 10 83704 • P.O.SM 4127, Boise, ID 83711
800.388-5705 - www.idacorpenergy_com
01-03-2003 13:39 FROM-PORTER-SIMON 5305871316 T-202 P-016/016 F-363
-- McDevitt & NUter L1,.P
Lawyers
420 Wes=Bannock Street
(208)343-.7500 P.O-Box 1364-83701 C:hus.r.Mdkvat
(208)336-691'2(Fax) Boise,Idaho 83702 Dean J.(jr3c)I11cr
Jaauuy 3,2003
Pia Hand Delivery
James R. Thompson.
Vice President, General Counsel and Secretary
ldaWrp Energy
340 porch Mitchell Street
Boise, Idaho 83704
Re: Truckee Donner[da.curp Energy
Derr Jim:
'i'ransmitted herewith please find:
Two signed originals of my `'Approved as to Form'' page of the Settlement AgrecinelIT.
One signed original of thr Stipulation of Dismissal, This can be delivered to Rex
Blackburn for his signature and filing with the Court. I would appreciate receiving a
file stamped copy when it is filed.
One signed original of the Confession of Judgment and Judgment to be delivered to Rex
Blackburn and held pursuant to the tenins of Lhe Settlement Agreement.
it has been a pleasure working with you on this matter and 1 am pleased it has been resolved to
the mutual satisfaction of the parties.
Very truly yours,
McDwitt & Miller LLP
. .Miller
End.
. _. C: Rex Blackburn(w/o enclosim s)
sieve Gross(w/o enclosures)
01-03-2003 13:39 FROM-PORTER-SIMON 5305871316 T-202 P.014/016 F-363
Approved as io form:
MCDEVITT &MILLER LLP
By:
Attorneys for Truckee-Donner Public Utility
]district.
PORTER SIMON
By:
Anomeys for Truckee-na mwr Public MiLY
District
SPIEGEL& MCDIARM1Ia
By: / t 1
YY
At[orncys f z ckee-Doruicr Pu He Utility
Distriel.
MORRISON a FORRSTER LLP
By:
Attorneys fcr MACORP FawaY L-P-,Idaho
Power Company and MACM?Inc.
BLACUBURN&JONES LT-P
By:
Anomeys for JDACORP Friergy L.P.,Idaho
Power Company and TDACO"Inc.
MCITUAI.RELB,&SE AND SETTLEMENT AGREBMENT
Page 0 of 16
01-03-2003 13:38 FROM-PORTER-SIMON 5305871316 T-202 P.009/016 F-363
EXHIBIT A
PROMISSORY NOTE
$26,000,000 Date: January 3, 2003
In connection with the Mutual Release and Settlement Agreement dated January 3, 2003
(the"Settlement Agreement") entered into by and between Idaho Power Company ("Idaho
Power"), IDACORP Energy L.P., ("IDACORP Energy"), and IDACORP Inc. (collectively,
"Holder"), and the Truckee-Donner Public Utility District("Maker''), and in consideration for
the terms and provisions of the Settlement Agreement, Maker hereby promises to pay to the
order of IDACORP Energy, by wire transfer, in lawful money of the United States of America,
the principal sum of Twenty Six Million Dollars ($26,000,000), together with accrued interest, if
any pursuant to the terms of the Settlement Agreement and this Promissory Note.
l. Payment of Principal and Interest_ The principal amount under this Note shall
bear interest at the rate of twelve percent(12%)per annum(the"Note Rate"). All interest
payable hereunder shall be calculated on the basis of a 360-day year, commencing as of January
3, 2003. The outstanding principal balance of this Note shall be payable in full no sooner than
April 1,2003 and no later than April 4, 2003 (the "Maturity Date").
2 Waiver of Interest Charges. Maker acknowledges and understands that Maker is
responsible for paying any and all of the outstanding principal due on this Note as provided
herein on the Maturity Date. Holder agrees to forgive and waive, at the Maturity Date, accrued
interest charges under this Note only if all payments under this Note have been made on or
before the Maturity Date. If all payments under this Note have not been made on or before the
Maturity Date, interest shall accrue at the Note Rate from the Maturity Date until the date of
payment. If all payments under this Note have not been made on or before 30 days after the
Maturity Date, interest on the principal amount shall accrue at the Note Rate from January 3,
2003 until the date of payment.
3. Events of Default and Remedies. Upon the occurrence of any of the following
events(each, an"Event of Default"):
(a) The failure of Maker to make payment upon this Note on or before 30
days after the Maturity Date; or
(b) The failure of Maker to observe or perform any other term or provision of
this Note and the continuation of such failure for twenty(20) days after notice thereof is given to
Maker by the Folder hereof; or
(c) Maker becomes insolvent or bankrupt, commits any act of bankruptcy,
generally fails to pay its debts as they become due,becomes the subject of any proceedings or
action of any regulatory agency or any court relating to its insolvency,makes an assignment for
the benefit of its creditors,or enters into any agreement for the extension or readjustment of all
Exhibit A,page 1 of 4
01-03-2003 13:38 FROM-PORTER-SIMON 5305871316 T-202 P-010/016 F-363
or substantially all of Maker's obligations or there is appointed a trustee,receiver or similar
officer for Maker;
THEN,
Upon the occurrence of an Event of Default under subparagraph(c) above automatically,and,
upon the occurrence of any other Event of Default at the option of the Holder hereof: (1)the
entire unpaid principal balance of and accrued and unpaid interest on this Note shall, without
notice to or demand of any kind upon Maker or any other person or entity,immediately become
due and payable; and (2) the Holder hereof shall have and may exercise any and all rights,
powers and remedies available hereunder, at law or in equity.
4. Attorneys' Fees and Costs. Maker shall pay on demand all costs of collection
when incurred, including,without limitation, (i)reasonable out-of-pocket costs of and expenses
of Holder in connection with the collection of amounts due hereunder and reasonable attornies'
fees incurred in connection therewith,whether any lawsuit is ever filed with respect thereto,
(ii)the reasonablc fccs and cxpenses of any receivcr or custodian appointed by any court at the
request of Holder and any counsel or professional engaged by such receiver or custodian; and
(iii)all reasonable fees,costs and expenses (including,but not limited to,professional fees)
incurred in connection with enforcing and collecting on this Note, including fees and expenses
incurred in connection with any voluntary or involuntary bankruptcy case. These expenses shall
be added to principal, and shall bear interest at the rate specified herein from the date incurred
until paid by Maker, which interest Maker agrees to pay.
5. Choice of Law. This Note shall be governed by and construed in accordance with
the laws of the State of Idaho without giving effect to its choice of law rules.
6. Forum Selection Clause and Consent to Jurisdiction. Any action or proceeding by
either the Holder or the Maker arising out of this Note shall be filed and adjudicated only in the
United States District Court for the District of Idaho,or if subject matter jurisdiction is lacking,
in Idaho State Court. Maker expressly consents to personal jurisdiction in Idaho.
7. Waiver. Maker and all others who may become liable for all or part of the
obligations of Maker under this Note(collectively,the "Obligors") agree to be jointly and
severally bound hereby, and jointly and severally, (i)waive presentment and demand for
payment, notices of nonpayment and of dishonor,protest of dishonor,and notice of protest;
(ii) waive all notices in connection with the delivery and acceptance hereof and all other notices
in connection with the performance, default,or enforcement of the payment hereof or hereunder
except as specifically required by this Note; (iii)waive any and all lack of diligence and delays
in the enforcement of the payment hereof; (iv)agree that the liability of each Obligor shall be
unconditional and without regard to the liability of any other person or entity for the payment
hereof, and shall not in any manner be affected by any indulgence or forbearance granted or
consented to by Holder to any Obligor or any such other person or entity; (v) consent to any and
all extensions of time, renewals,waivers or modifications that may be granted by Holder with
respect to the payment or other provisions hereof, and to the release of any person or entity liable
for the payment hereof; and (vi) consent to the addition of any and all other makers,endorsers,
guarantors, and other obligors for the payment hereof, and agree that the addition of any such
Exhibit A,page 2 of 4
01-03-2003 13:39 FROM-PORTER-SIMON 5305871316 T-202 P-011/016 F-363
obligors or security shall not affect the liability of any of the Obligors for the payment hereof.
Obligors further agree that the Holder of this Note may,without notice to Obligors and without
affecting the liability of Obligors, accept additional or substitute security for this Note, or release
any security or any party liable for this Note, or extend or renew this Note.
S. Maximum Interest Rate; Charges. All agreements between Maker and the Holder
of this Note are expressly limited so that under no circumstances whatsoever and in no event
whatsoever, whether by reason of the advancement of proceeds or the escalation of maturity
arising from default or otherwise, shall the amount paid or agreed to be paid to the Holder hereof
for the use, forbearance or detention of the money to be advanced hereunder exceed the highest
rate permissible under the laws of the State of Idaho, the State of California or any other
applicable law. If, for any reason whatsoever, fulfillment of any provision of this Note or of any
other agreement relating hereto, shall involve transcending the applicable usury limit which a
court of competent jurisdiction may apply hereto, then the obligation to be fulfilled shall
automatically be reduced to such limit, and if for any reason the bolder hereof shall ever receive
as interest an amount which would exceed such limit, such amount which would be excessive
interest shall be applied to the reduction of the unpaid principal balance due under this Note and
not to the payment of interest, or, if such amount exceeds the unpaid principal balance, Holder
shall refund the difference.
9. Miscellaneous.
(a) The provisions of this Note shall inure to the benefit of and be binding on
any successor to Maker, or any assignees hereof, and shall extend to any Holder hereof.
(b) The obligation to pay the Holder of this Note shall be absolute and
unconditional and the rights of such Holder shall not be subject to any defense, setoff,
counterclaim or recoupment or by reason of any indebtedness or liability at any time owing by
Holder to Maker.
(c) This Note shall not be amended unless such amendment is in writing and
executed by both Holder and Maker.
(d) All amounts payable under this Note are payable by wire transfer-
(e) Headings are for convenience only and are not intended as a limitation on
the content of the paragraph following,nor as an aid in construction thereof. The parties hereto
intend and believe that each provision of this Note comports with all applicable law;however, if
any provision in this Note is found by a court of law to be in violation of any applicable law, and
if such court should declare such provision of this Note to be unlawful,void or unenforceable as
written,then it is the intent of all parties to the fullest possible extent that it is legal, valid and
enforceable,that the remainder of this Note shall be construed as if such unlawful,void or
unenforceable provision were not contained therein, and that the rights, obligations and interests
of Maker and Holder hereof under the remainder of this Note shall continue in full force and
effect;provide , however,that if any provision of this Note which is found to be in violation of
y any applicable law concerns the imposition of interest hereunder,the rights, obligations and
Exhibit A,page 3 of 4
01-03-2003 13:39 FROM-PORTER-SIMON 5305871316 T-202 P-012/016 F-363
interest of Maker and Holder with respect to the imposition of interest shall be governed and
controlled by the provisions of Paragraph S hereof. Time is of the essence of this Note.
(f) This instrument,together with the Settlement Agreement constitutes and
sets forth the entire understanding and agreement of the parties, and no party hereto has relief
upon any representations, agreements or understandings,verbal or written,not set forth herein or
in the Settlement Agreement whether made by any party hereto or by any agent, employee or
representative of any party hereto. Specifically,and without limiting the foregoing,the parties
agree that Holder has made no agreement to extend or renew this Note.
(g) Maker warrants and represents that it has the right,power and authority to
execute this Note. Maker represents and warrants that it has given any and all notices,and
obtained any and all consents,powers and authorities, necessary to permit it and the persons
executing this Note for it,to enter into this Note, and to make this Note, and all the provisions
hereof, fully binding on and enforceable against Maker,including, without limitation thereto, any
necessary notice to or consent or approval from its shareholders, creditors, Board of Directors,
pamicrs,limited partners, mcmbcrs, managrrs, officers, or any other person, entity, group or
body. On or before the Effective Date of this Promissory Note, and no later than the effective
date of the Settlement Agreement,Maker shall provide to Holder: (1)a certified resolution of its
Board of Directors approving this Note, and(2) an opinion of counsel for Maker confirming the
validity, binding effect and enforceability of this Note against Maker.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Note as of
the date and year first above written.
TRUCKEE DONNER PUBLIC UTILITY DISTRICT,
By:
,��q -k 1%
Name: T7 Te zjl
Its: IZ D
Exhibit A,page 4 of 4
01-03-2003 13:37 FROM-PORTER-SIMON 5305871316 T-202 P-002/016 F-363
IN WITNESS WHEREOF this Settlement Agreement is executed and agreed to by the
following, as of January 3, 2003.
IDACORP Energy L.P.
By:
Name: Richard Riazzi
Title: President
Idaho Power Company
By:
Name: J. LaMont Keen
Title: President and Chief Operating Officer
IDACORP,Inc.
By:
Name: J. B. Packwood
Title: President and Chief Executive Officer
Truckee-Donner Public Utility District.
By:
a J. Ronald Hemig Ile
President, Board of Directors
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Page 14 of 16
01-03-2003 13:38 FROM-PORTER-SIMON 5305871316 T-202 P-003/016 F-363
Approved as to form:
MCDEVITT & MILLER LLP
By:
Attorneys for Truckee-Donner Public Utility
District.
PORTER SIMON
ay:
Attorneys for Truckee-Donner Public Utility
District
SPIEGEL & MCDIARMID
By:
Attorneys for Truckee-Donner public Utility
District.
MORRISON & FOERSTER LLP
By:
Attorneys for IDACORP Energy L.P., Idaho
Power Company and IDACORP Inc.
1BLACKBURN & JONES LLP
By:
Attorneys for IDACORP Energy L.P., Idaho
Power Company and IDACORP Inc.
MUTUAL RELEASE AND SETTLEMENT AGREEMENT
Page 15 of 16
01-03-2003 14:27 FROM-PORTER-SIMON 5305871316 T-204 P-002/007 F-367
MID&OXW ENERGY
350 North Mitchell Street
Boise,Idaho 83704
James R. Thompson
Vice President,Genera] Counsel & Secretary
(208)275-8312 Facsimile (208) 275-8475
E-mail - ithomuson@idacore,er y corn
FAX TRANSMITTAL COVER PAGE
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Date:January 3,2003
FAX##: 530-587-1316 No,of Pages, including S
this cover sheet;
AT: Potter Simon Law
DELIVER TO: Steve Gross
RE: Truckee Danner Mutual Release &Settlement Agrcement Signatures
FROM: rim Thompson
Problems with tranmdssiou? Please call Sharon Nill at(208)275-8313
01-03-2003 14:27 FROM-PORTER-SIMON 5305871316 T-204 P.001/007 F-367
KELLEY R.CARROLL•T - AND►tkw J.MORRIS'
PETER H.CUTTITTA* Law Office Of JAMiFs L.OLMSTEDTT
a STEVEN C.GROSS* KENNETH P.CRAIG`
STEPHEN C.LIEuRMAN PORTER • SIMON KINKY S.PARWANI
JAMES L.PORTER JR.• ]LUA S.13URT"
Amu E.SIMON Professional Corporation
•Also LioonSea in Nevada
Reply to Truckee Office - `rfffied rots an Probam 1Aw
J anuary 3,2003 ??Also Liernstd in Nov;,da.Oregon
end Washington
00 Also Cemficd Public Accomcm
FAX COVER SHEET
PLEASE DELIVER THE FOLLOWING PAGE(S) TO-*
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®0*i
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RE: SETTLEMENT AGREEMENT-TDPUD - IDACORP
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01-03-2003 14:51 FROM-PORTER-SIMON 5305871316 T-205 P.001/003 F-369
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PETER H.CU'ITITTA* Law Office Of JAMES L.OLMSTEDn
STEVEN C-GROSS* KENNETH P.CttE+lG'
STEPHEN C.LIEBERMAN PORTER • SIMON mxY s.PARWANI
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JAMES E.S[MON Professional Corporation
*Also Luensed in Nevida
Reply to 7 r ickee Office __ TCeniticd Specialiat ui Fzuw
Plmiig, Truba and Probcte Law
January 3,2003 T?Also Lieettsad in Nauck,Oregon
and W.&Wnsion
-'Also Cenitiud Public Accountant
FAX COVER SHEET
PLEASE DELIVER'Tm FOLLOWING PAGE(S) TO:
NAME: STEPHEN HOLLAAAUGn. TDPUD
Fax No.: 587-1189
FROM: STEVEN C. GROSS
RE: SETTLEMENT AGREEMENT
r
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01-03-2003 14:51 FROM-PORTER-SWON 5305871316 T-205 P.002/003 F-369
ENERGY
350 North Mitchell Street
Boise, Idaho 83704
James R. Thompson
Vice President, General Counsel & Secretary
(208)275-8312 Facsimile(208)275-8475
E-mail - ithompsonc&idacQ!penere c_nm
FAX TRANSMITTAL COVER PAGE
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Date:January 3, 2003
FAX#: 530-587-1316 No_of Pages. including 2
this cov=sheer._
AT: Porter Simon Law
DELIVER TO: Steve Gross
RE: Truckee Donner Mutual Release &Settlement Agreement
FROM: Jim Thompson
Problems with transmission`' Please cell Sharon NM at(208)275-8313
01-03-2003 13:39 FROM-PORTER-SIMON 5305871316 T-202 P.015/016 F-363
McDEVITT & MILLERLLP
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FAX
Date- January 3,2003 Total Pages: 3
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530-587-1316
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01-03-2003 13:37 FROM-PORTER-SIMON 5305871316 T-202 P.001 F-363
ANDREW J.MORUS'
KBLLEY PL CARROLVT JAMES L.OLMSTUDTT
PETER 14.cUTTJTTA` Law Office Of Kr•NNETH P.CRAIG■
sTEv>=N C.oROss• PORTER • SIMON INKY S.PARWANi
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JAMES F S1MON Professional Corporation •AISO UCC1WW in Nevada
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Reply to Truckee Office Planning. Trimu and Probzle law
January 3, 2003 T TAIso Lrecnawd in Nevada.Oragoa
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AISo Certified PLblu ACCOanum
FAX COVER SHEET
PLEASE DELIVER THE FOLLOWING PAGE(S) TO:
NAME: STEPHEN HOLLABAUGH, TDPUD
FAX No.: 587-1189
FROM: STEVEN C. GROSS
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Ddte: January 27,2003
From: Dean], Miller
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