Common use of Evaluation of Positions Clause in Contracts

Evaluation of Positions. PacifiCorp notes that the proposed ▇▇▇▇▇▇ Account Settlement is a compromise by the parties to resolve a contractual dispute arising out of the 1981 RPSA. (PacifiCorp, ADS090009, at 2.) PacifiCorp and PGE note that the disputes that the parties propose to resolve arise out of a term in the1981 RPSA, which is neither required by nor part of the REP statutory scheme set out in the Northwest Power Act. (Id.; PGE, ADS090008, at 1.) PacifiCorp states that BPA is authorized to settle such issues, and to enter into settlement agreements regarding such issues, by section 9(a) of the Northwest Power Act and section 2(f) of the Bonneville Project Act. (PacifiCorp, ADS090009, at 2.) PacifiCorp states that by fully and finally resolving disputed issues with Avista, BPA is able to avoid the substantial cost and uncertainty of litigation; thus, BPA’s decision to enter into the proposed ▇▇▇▇▇▇ Account Settlement is consistent with its charge to act in a businesslike manner. (Id.) Avista notes that on September 4, 2008, BPA issued its “Short-Term Bridge Residential Purchase and Sale Agreement for the Period Fiscal Years 2009-2011 and Regional Dialogue Long-Term Residential Purchase and Sale Agreement for the Period Fiscal Years 2012-2028: Administrator’s Record of Decision” (“RPSA ROD”). (Avista, ▇▇▇▇▇▇▇▇▇, at 5.) Pursuant to the RPSA ROD, BPA subsequently offered Avista a short-term bridge RPSA (“Bridge RPSA”) and a Regional Dialogue long-term RPSA (“Long-Term RPSA”) for execution to implement the REP. (Id.) Avista executed both the Bridge RPSA and the Long-Term RPSA. (Id.) In executing both the Bridge RPSA and the Long-Term RPSA, Avista expressly reserved its rights to any and all arguments or claims Avista has made or may make, or any rights or obligations it has or may have, regarding, among other things, “the calculation, implementation, or settlement of the Residential Exchange Program benefits for any period of time,” including any and all of Avista’s arguments regarding the disputed ▇▇▇▇▇▇ issues. (Id.) On December 1, 2008, Avista filed a petition for review with the United States Court of Appeals for the Ninth Circuit challenging the RPSA ROD, the Bridge RPSA, and the Long-Term RPSA (“RPSA Appeal”).9 (Avista, ▇▇▇▇▇▇▇▇▇, at 5.) In filing the RPSA Appeal, Avista intended to challenge, among other things, the validity and calculation of the ▇▇▇▇▇▇ amount asserted by BPA and the legality of the Balancing Account provisions (i.e., the ▇▇▇▇▇▇ provisions) in the Bridge and Long-Term RPSAs. (Id.) Avista notes that the proposed Settlement will fully and finally resolve those issues without the need for further litigation of those issues. (Id.) Avista states that under the terms of the proposed Settlement, Avista’s 2002 ▇▇▇▇▇▇ balance is reduced from the $85.6 million assumed by BPA in the WP-07 Supplemental Rate Proceeding to $55 million. (Avista, ▇▇▇▇▇▇▇▇▇, at 5.) Consistent with the WP-07 Supplemental ROD, BPA will reflect the proposed Settlement in Avista’s Lookback by replacing in the calculation employed in the WP-07 Supplemental Proceeding that established the assumed $85.6 million ▇▇▇▇▇▇ amount with the $55 million agreed to by the parties. (Id.) In consideration for BPA’s agreement to reduce Avista’s ▇▇▇▇▇▇ balance, Avista will accept the new ▇▇▇▇▇▇ account balance, agree to resolve all past ▇▇▇▇▇▇ issues, agree not to challenge BPA’s use of ▇▇▇▇▇▇ amounts to determine the Lookback Amounts pursuant to the WP-07 Supplemental ROD, and agree not to challenge the Balancing Account provisions in the Bridge and Long-Term RPSAs.10 (Id.) Avista supports the proposed Settlement because it fully and finally resolves a long- standing dispute and it allows Avista to pass through prospective REP benefits to its customers. (Id.) 9 Avista’s petition for review is currently pending in Ninth Circuit Case No. 08-70265. 10 Avista’s Bridge RPSA is BPA Contract No. 08PB-11964. Avista’s Long-Term RPSA is Contract No. 09PB- 13200. Avista states that the proposed Settlement is a compromise by the parties to resolve a contractual dispute arising out of the 1981 RPSA. (Avista, ▇▇▇▇▇▇▇▇▇, at 6.) As noted previously, the disputes that the parties propose to resolve arise out of a particular term in the 1981 RPSA. Avista notes that the ▇▇▇▇▇▇ provision in the 1981 RPSA is neither required by nor part of the REP statutory scheme set out in the Northwest Power Act. (Id.) BPA is authorized to settle such issues, and to enter into settlement agreements regarding such issues, by section 9(a) of the Northwest Power Act, 16 U.S.C. § 839f(a), and section 2(f) of the Bonneville Project Act, 16 U.S.C. § 832a(f). (Id.) Moreover, by fully and finally resolving disputed issues with Avista, BPA is able to avoid the substantial cost and uncertainty of litigation. (Id.) Accordingly, BPA’s decision to enter into the proposed Settlement is consistent with its charge to act in a businesslike manner. (Id.)