20140123Notice of Affiliate Transaction.pdf

UPaclFIConp:, :
\ A MToAMERTCAN ENERGY HottxNcs GoMmNY ! -
Ma* C. Moench' I Senior Yice President and General Counsel' t 201 S. Main Street, Suite 2400
Salt Lake CiO, UT 84111
E0I-2204459 OfJice
801-220405E Fax
mark mo ench@1t aciftcorp. com
January 23,2014
VIA OYERNIGHT DELIYERY
Idaho Public Utilities Commission
472West Washington
Boise,ID 83702-5983
Attention: Jean D. Jewell
Commission Secretary
Re: PacifiCorp Notice of Affiliate Transaction
Case No. PAC-E-05-8
Dear Ms. Jewell:
This letter will serve as notice pursuant to Commitment I l7(2), incorporated in the
Idaho Public Utilities Commission OrderNo.29973 issued February 13,2006, as supplemented
by Order No. 29998 March 14, 2006, in the above-referenced proceeding, approving the
acquisition of PacifiCorp by MidAmerican Energy Holdings Company (MEHC), of an affiliate
interest transaction with Cottonwood Creek Consolidated Irrigation Company (CCCIC) for an
Easement Grant (Easement). The Easement is included as Attachment A. CCCIC is a non-profit
company that holds water rights in the Cottonwood Creek drainage, located in Utah.
PacifiCorp is a wholly-owned indirect subsidiary of MEHC. MEHC is a subsidiary of
Berkshire Hathaway, Inc. (Berkshire Hathaway). As of March 31,2010, Warren E. Buffet (an
individual who may be deemed to control Berkshire Hathaway), Berkshire Hathaway, various
subsidiaries of Berkshire Hathaway and various employee benefit plans of Berkshire Hathaway
subsidiaries together held an interest of approximately 26 percent of CCCIC. Therefore,
Berkshire Hathaway's ownership interest in CCCIC may create an affiliated interest in some
Pacifi Corp jurisdictions.
CCCIC requested the Easement to allow it to install an 8-inch culinary water line over
land associated with the Hunter generation facility in Emery County, Utah. The water line will
run parallel and south of an existing stock water line owned by CCCIC. The perpetual easement
area is 1.05, acres and the temporary construction easement area is 1.76 acres. There will be no
aboveground facilities or accesses associated with the proposed waterline.
The CCCIC Board of Directors and all CCCIC shareholders have previously agreed that
landowners that are CCCIC shareholders granting easements to CCCIC for the project would
charge no fees. Therefore, as a shareholder, PacifiCorp has agreed not to charge CCCIC for the
Easement. The market value of the perpetual easement, as developed through an internal
Idaho Public Utilities Commission
January 23,2014
Page2
valuation, is $1,050. The market value of the temporary construction easement, as developed
through an internal valuation, is $352.
The Easement is in the public interest because it is part of a project to provide a more
reliable and long-term source of water for the Hunter Plant and reduce operation and
maintenance costs.
Please do not hesitate to contact me if you have any questions.
Sincerely,
Mark C. Moench
Senior Vice President and General Counsel
PacifiCorp
Enclosures
EASEMENT AI\ID CONSTRUCTION AGREEMENT
This EASEMENT AND CONSTRUCTION AGREEMENT ('Agreement') is entered into this
_ day of , 2013, between PACIFICORP, an Oregon corporation
("Grantor'), and Cottonwood Creek Consolidated lrrigation Company, a non-profit mutual
irrigation company organized under the laws of the State of Utah ("Grantee"). Grantor and
Crrantee are sometimes referred to herein individually as a "Party" and collectively as the
"Parties."
RECITALS
A. WHEREAS, Grantee wishes to locate, constuct, operate, maintain and replace one
eight (8) inch High-Density Polyethylene (I{DPE) pipe underground water line and appurtenances
related thereto ('Water Facilities") over, rmder, acnoss and through a portion of Grantor's real
property located in Emery Cormty, State of UtalU known as Assessor Parcel Number: U54025-
0002 (the "Property'') for the purpose of providing water service to Grantee's customers in Utatr,
and
B. WHEREAS, Grantor is willing to grant a perpetual easement for the installation
and maintenance of the Water Facilities ("Perpetual Easement"), along with a temporary
constuction easement for a limited duration to be used as a construction laydown area
('Temporary Easemenf') across a portion of the Property. Collectively the Perpetual Easement
and Terrporary Easement are sometime referred to herein as ("Easement Areas" and
"Easements'); and
C. WHEREAS, ttris Agrcement is wrifien to set forth the Parties' agreernent
regarding the constnrction practices to be used by Grantee in constucting the Water Facilities on
the Property;
D. WHEREAS, Grantor's property is currently being leased for the purpose of
livestock grazing and Grantee is responsible to provide for the safety of the livestock during the
period of Grantee's constuction activities.
NOW THEREFORE, the Parties agree as follows:
l. Crrant of Perpetual Easement and Temporary Construction Easement. Crrantor
will convey to Grantee, without waranty, the non-exclusive perpetual easement across the
Property, a copy of which is attached as Exhibit *A" and Grantor will also convey to Grantee,
without warranty, the non-exclusive temporary construction easement, attached as Exhibit "B".
2. Constnrction Activities: Grantee's activities dtring the construction and
installation of the Water Facilities including but not limited to strvey, planning, staging,
construction and installation, until the point at which the project is deemed complete and the
Water Facilities are operating shall be referred to as ("Constnrction Activities").
3. Constnrction Practices. In addition to the construction practices specified in the
Easernents, Grantor apprcves, and Grantee will adhere to, the following constnrction practices in
Page I of6
constructing the Water Facilities:
a. Grantee shall maintain a distance of twenty (20) feet away from aerial power
lines and poles when operating or using a crane and denick equipmen[ All other equipment must
maintain a clearance of ten (10) feet away from aerial power lines and poles. Crrantor reserves the
right to approve such methods and equipment prior to conmencement of Constnrction Astivities.
b. Crrantee shall contact the state's underground locate service at 811 to
identifr all undergromd utilities prior to commencing Constnrction Activities.
c. Grantee shall comply with all federal, state and local laws and ordinances,
including all pernrit requirements implicated by Construction Activities and Grantee's use of the
Easement Areas. Grantee shall provide written confirmation that consultation with federal, state
and local agencies has occurred.
d. Grantee shall provide proof of approval of any and all required permits or
regulatory reviews, if any, to Grantor upon receipt of approval.
e. Grantee shall be solely responsible for all construction best management
practices (BMPs) related to the installation of the Water Facilities and post-constnrction
reclamation work upon completion of the Water Facilities to a similar or like condition prior to
use ofthe Easement Areas.
1. Constnrction BMPs
i. Minimization of constuction taffic and laydown area
disturbances, including Grantor approval of laydoum/storage areas and any necessary ground
disturbance deemed necessary with the laydown/storage axean, prior to commencement of
Construction Activities.
ii. Usage of sedimenUerosion mats and waddles where
appropriate (slope dependent) to minimize sedimentation and erosion nmoff.
iii. Spill Prevention, Contol, and Countermeasure (SPCC) or
Spill Prevention and Response Plan (SPAR) to address potential spills/leaks associated with
heavy equipment/tnrcks performing activities on-site.
iv. Obtaining full payment and performance bonds for
Construction Activities for the full amount of the worh including post-constnrction reclamation
work, regardless of whether the Construction Activities and the reclamation work are performed
by the same or different contactors, and providing copies of such payment and perforrrance
bonds to Crrantor pnor to the commencement of work.
2. Grantee shall perform Constuction Activities and post-
constnrction reclamation described below only through Grantee employees or by licensd
insured and bonded contractor(s).
3. Grantee agrees to conform with certain specific requirements by
Grantor, including but not limited to:
Page 2 of6
i. Any material (gravel, rocks, rip-rap, other nattral material
necessaq/ for constnrction) stored on the Easement Areas shall have a fabric material placed
under the material to avoid any soil contamination.
ii. Any material or equipment placed directly under Grantor's
power lines shall comply with G,rantor's clearance requirements or Occupational Safety and
Health Adminisfation's clearance rcquirements, whichever is more stringent. Every precaution
shall be taken by Grantee and Grantee's contractors, its subcontractors and all representatives to
ensure safe practices, as defined in Section 3 (b) above, while working in the vicinity of said
power lines.
iii. No vehicles shall be stored on the Easement Areas. If a
washout/cleanout area is n@essary on the Easement Areas, Grantee shall completely remove any
and all material that results from said cleanout. The Easement Areas shall be restored to a
condition satisfactory to Grantor.
iv. A silt fence shall be installed in accordance with state
and/or federal standards and regulations. Grantor has the right to require Grantee to undertake
additional measures that may exceed state/federal standards if it is determined necessary for
protection of the Property.
v. tluring installation of the Water Facilities, Grantee shall
provide signs/barriers as needed to preclude motorized or non-motorized access and or traffic to
protect the public by precluding access to anyone to/through the construction areas.
vi. Protection and Repair of Existing Fences, Corrals, Gates,
and Other Enclosures: Grantee agrees to repair any fences damaged as a result of Construction
Activities and otherwise restore the fences to a condition equal to or better than their
preconstruction condition, unless otherwise explicitly ageed by Grantee and Grantor.
f. [n connection with all design and construction work concerning Water
Facilities, Grantee shall retain only bonded, insured and licensed contractors and shall provide
written proof to Grantor satisffing this provision prior to commencing work.
g. Grantee shall be solely responsible for being aware of and initiating,
maintaining and supervising compliance with all applicable safety laws, regulations, precautions
and programs in connection with the Construction Activities and any other of its activities
pursuant to Easements. Prior to the start of any work under the Easements, Grantee shall ensure
that each of irc own employees, reprcsentatives, agents and contractors are fully informed
concerning all safety, health and security regulations pertaining to their work. Grantee shall
require its contractors to fully inform their subcontractors, of any tier, conceming all safety,
health and security regulations pertaining to the work. Grantee shall conduct work under the
Easements in such a manner as to avoid the risk of bodily harm to persom or risk of damage to
any property. In the event that Grantee fails to promptly correct any violation of safety or health
regulations, by written notice Grantor may choose to suspend all or any part of Grantee's work
herermder.
Page 3 of6
h. During Grantee's Constnrction Activities, Grantee shall install ternporary
fencing sufficient to prevent livestock owned by a Iessee of Grantor's Property from escaping or
becoming i4iured, harmed, or killed from the Construction Activities.
4. Term. Sections 3, above, shall be in effect until the completion of the
Constnrction Activities. Any construction work performed on the Property tutder the Easement
after the expiration of this term will require a new agreernent specifring applicable constnrction
practices.5. lndemnification. Grantee agr€es to indemnifr, defend, and hold hannless Grantor
and Crrantor's affrliated companies, offrcers, directors, shareholders, agents, employees,
successots, and assigns, from and against all liabilities, claims, darnages, liens, fines and
penalties (including court cnsts, attorneys' fees, and litigation expenses) directly or indircctly
arising from or caused by (i) a breach by Grantee of any provision of this Agreement, (ii)
Grantee's use and occupation of the Property, (iii) any act or omission of Grantee on the
Property, or (iv) any act or omission of any contractor retained by Grantee, or anyone directly or
indirectly employed by them, or anyone authorized by Grantee to control or exercise control over
work on the Property. This indemnification provision shall apply to all theories of recovery,
including breach of contract or warranty, negligence, and sfict or statutory liability, except for
negligence of the Grantor. In the event any indemnified claim is caused by the joint or
concurrent negligence of the Gmntor and Crrantee, Gmntee shall indemni$ Grantor only in
proportion to Grantee's own negligence or liability. The indemnity provisions herein shall
survive termination of this Agreement.
6. Damages. ln addition to the general indemnification provisions above, Grantee
agrees that if Crrantee or its activities under this Agreement cause any damage to Crantor's utility
equipment or facilities, whether above or below gtound, Grantee will reimburse Grantor for all
costs incurrd by Grantor to repair or replace such damaged equipment or facilities. As used in
this Section, any reference to Grantor's equiprnent or facilities shall include any equipnent or
facilities owned by third parties that are lawfully located on the Grantor's Land, whether by
easement, license, lease, or otherwise.
7. Notices. Notices to be given under this Agreement shall be delivered or mailed to
the following:
PaciliCorp
Ath: Property Managemant
825 NE Multnomatr Street, Suite 1700
Portland, OR 97232
Creek Consolidated lrrication Comoanv'MfrQfl rtso h, /it s, r.len I
94ss7
Page 4 of6
8. Miscellaneous.
a- Any amendment to this Agreement must be in writing and executed by an
authorized representative of each Party.
b. This Agreement may be executed in separate counterparts.
c. The individuals executing this Agreernent represent and warrant that they
have the power and authority to do so.
d. If a party brings an action to enforce this Agreement" the prevailing party
in the action will be entitled to an award of reasonable attorney's fees, court costs and litigation
experNcs.
e. Time is of the essence in the performance of this Agreement.
f. This Agreement is binding upon and may be enforced by the Parties'
successors and assigns.
g. This Agreement and the Easements constitute the entire agreement
between the Parties relative to the subjects thereof. Any prior negotiations, corespondence, or
understandings relative to zuch subjects shall be deemed to be merged into this Agreement and
the Easements.
Oregon.
h. This Agreement does not confer any rights upon any third party.
i. This Agreernent shall be interpreted pursuant to the laws of the State of
j. The terms of this Agreement shall not merge with the Easernents, and
shall survive the execution and delivery of the Easements.
k. Jury Trial Waiver. To the fullest extent permitted by law, each of the
parties hereto waives any right it may have to a trial by jury in respect of litigation direcfly or
indirectly arising out of, under or in connection with this Agreement. Each party further waives
any right to consolidate, or to request the consolidation o[ any action in which a jury trial has
been waived with any other action in which a jury trial cannot be or has not been waived.
{STGNATURES ON FOLLOMNG PAGE}
Page 5 of6
Its:
Date:
Signed and entered into as of the date uiritten above.
GRANTOR:
PACIFICORP, an Olcgon corporation
By:
GRA}ITEE:
Cottonwood Creek Consolidated Inigation Company, a non-profit mutual inigation company
organizod rmderthe laws of the State of Utah
By:
Ib:
Date:
Page 6 of5
YYhen Recorded Retum To:
PERPETUAL NON.EXCLUSTVE EASEMENT
(UNDERGROTTND WATER LrNE)
PACIFICORP, an Oregon corporation ("Grentor') hereby grants to Cottonwood
Creek Consolidatcd Irrigation Compeny, a non-profit mutual irrigation company organized
under the laws of the State of Utatr ('Grantee') and its successors and assigns, for value
received, without warranty, a non+xclusive perpetual easement ('Easemenf) over, under, acrcssr
and through a portion of Grantor's real prcperty located in Emery &*ty, State of Utatr" knounr as
Assessor Parcel Number: U5-0025-0002 (the'?rcperty') for the purpose of locating, constnrcting,
operating, maintaining and replacing one eight (8) inch High-Density Polyethylene (HDPE) pipe
underground water line and appurtenances relded thereto (the "Water X'acilitier ) related thereto.
l. Grantee's Use.
a* Grantee's use of the Property is confined to the area illustrated and morc
particularly described and depicted in Exhibit *A" (the "Elsement Area").
b. Crrantee may not make any use of the Easement Area that interferes with
Grantot's existing or future gene,ration, tansrrission, distibution or other electric facilities on the
Prcpsrty, provide( however, that Crrantor may not in the future constnrct facilities orL over or under
the Easement Area ttnt unrcasonably interfere wittr Grantee's use of the Easement Area under this
Easement.
c. Grantee may not obstnrct Crrantor's roads crossing the Easement Area or
Grantor's use of the Easernent Arca to obtain aocess to Crrantor's facilities or the Property without
Cmntor's prior written approval.
d. Installation of the Water Facilities must be strfficient to support vehicles and
otherequipment weighing fifty (50) tons.
e. Grartee may not, without Grantor's prior unitten ryproval, excavate within
tweirty (20) feet of Grantot's distibution wireq stnrctures and facilities.
f. Crraotee may not store flammable or hazardous materials, or refuel vehicles
or equipment within the Easement Area.
g. Firearms, tobacco and alcohol use, and hunting are not allowed on the
Property.
Page I of8
h. Crrantee shall not corrmence the constuction, reconstruction or
replacement of the Water Facilities on the Property without first obtaining Grantor's written
approval of all construction practices to be employed in perfomring such work Grantor's
approval of the constnrction practices to be employed in the initial construction of the Water
Facilities is set forth in an agreement entered into contemporaneously with this Easement.
Similar written approvals shall be required for any future conshuction work on the Prcperty,
which approvals shall not be unreasonably withheld. In addition:
i. Grantee may not use constuction cranes, diggers, track hoes or other
that violate National Electic Safety Code clearance standardq Occupational Safety and
Health Administration clearance standards or mor€ shingent standards all may be imposed on
Grantor by law or regulation for the efficient and safe operations of Grantor's electic lines.
Upon completion of any constuction or maintenance activities,
Grant€e must rctum the Easement Area and all affected acoess roads to a condition the same as or
better than their pre-constuction condition.
2. Grantor's Use. Crrantor reserves the right, at any time, to cross the Easement
Area with equipment, personnel, overhead and underground power lines, and access roads.
Grantor shall have no obligation to maintain the roads located on the Easement Area or to keep
such roads in passable condition for the benefit of Grantee. Grantor further reserves the right to
ue the Easement Area for its existing electric utility operations, and for such future uses that
Grantor deems necessary or desirable, so long as such uses or rights do not unreasonably
interfere with Grantee's uses of Easement Area under this Ease,ment Grantor firrther reserves
the right to grant similar uses or rights to others.
3. AbandonmenUTermination. This Easement will terminate if Grantee ceases to
maintain or use the Water Facilities for a period of twenty-fow (2a) consecutive months. Upon
termination, Crrantee, at its sole cost, must promptly take all actions necessary to remove the
Water Facilities and clean up and restore the Easernent Area in accordance with applicable laws
and reasonable industry standards and customs observed at the time of abandonment or
termination. At Grantor's option, underground facilities may be abandoned in place.
4. Successors and Assigns. All rights and obligations contained in this Easement or
implied by law are intended to be covenants nmning with the land and shall attach, bind and
inure to the benefit of Grantor and Grantee and their respective heirs, successors, and assigns.
5. Release. Assumotion of Risk and Indemnification.
L Grantor makes no rcpresentation or warranty concerning the suitability of
the Propeny for Crrantee's use. Grantee accepts the Property "AS IS" in its present conditiorq
including the presence of hazardous substances, if any. Grantee forever releases and discharges
Grantor from any claims arising from the condition of the hoperty.
b. Grantee assumes the risk of using the Property in its present condition and
acknowldges the presence of electrical facilities on the Property, which are potentially
dangerous to persons and property. Grantee agrees to employ all necessary care and precaution
when using the hoperty.
Page 2 ofE
Grantee agrees to indemni&, defen4 and hold harmless Grantor and Grantor's afEliated
companies, officers, directors, shareholders, agents, employees, successors, and assigns, from
and against all liabilities, claims, damages, liens, fines and penalties (including court costs,
attorneys' fees, and litigation expenses) directly or indirectly arising from or caued by (i) a
breach by Grantee of any provision of this Easement, (ii) Grantee's use and occupation of the
Property, (iii) any act or omission of Grantee on the Property, or (iv) any act or omission of any
independent conhactor retained by Grantee, or anyone directly or indirectly employed by them,
or anyone authorized by Grantee to control or exercise control over work on the hoperty. This
indemnification provision shall apply to all theories of recovery, including breach of contract or
warranty, negligence, and sfiict or statutory liability, except for negligence of the Grantor. ln the
event any indemnified claim is caused by the joint or concurrent negligence of the Grantor and
Grantee, Grantee shall indemnift Grantor only in proportion to Crrantee's own negligence or
liability. The indemnity provisions herein shall survive termination of this Easement.
6. Damages. In addition to the general indemnification provisions above, Grantee agrecs
that if Crrantee or its activities under this Agreement cause any damage to Grantor's utility
equipment or facilities, whether above or below ground, Grantee will reimburse Grantor for all
costs incurred by Grantor to repair or replace such damaged equipment or facilities. As used in
this Section, any reference to Gtantor's equipment or facilities shall include any equipment or
facilities owned by third parties that are laurfully located on the Grantor's Lan{ whether by
easement license, lease, or otherwise.
7. Miscellaneous Provisions.
a. Existing Encumbrances. This Easement is subject to all rights of way and
encumbrances (whether or not recorded) of any kind existing at the time of the creation of this
Easement.b. Counterparts. This Easement may be executed in any number of
counterparts, each of which when executed and delivered shall be deemed to be an original, and
all of which shall together constitute one and the same instnrment.
c. No Public Dedication. The provisions of this Easement are not intended to
and do not constitute a dedication for public use, and the rights created by this Easement are
private and for the benefit only of the parties hercto, their successors and assigns.
d. Compliance with Laws: Liens. Grantee must secure dl permits and
comply with all applicable laws, rules and regulations of any public authority relating to
Crrantee's use of the Property. Grantee must keep the Pnrperty free from liens arising from
Grantee's activities.
e. Time of Essence. Time is of the essence in the performance of the parties'
obligations under this Easement.
f. Attorne},'s Fees. If a party brings an action to enforce this Easement, the
prevailing party in the action will be entitled to an award of reasonable attorney's fees, court
costs and litigation expemes.
g. Applicable Law. This Easement shall be governed by and constued in
Page 3 of8
accordance with the laws of the State of Utah.
h. Jury Trial Waiver. To the fullest extmt permitted by law, each of the
parties hereto waives any right it may have to a tial bV jury in respect of litigation directly or
indircctly arising out o[ rmder or in connection with this Eas€Nnent. Each party firrther waives
any right to consolidate, or to request the consolidation of, any action in which a jury tial has
been uraived with any other action in which ajury tial cannot be or has not been waived.
i. Notices. Notices to be given rmder this Ease,ment shall be delivered or
maild to the following:
PacifiCorp
Attn.: Property Management
825 NE Multromah Street, Suite 1700
Portland, OR 97232
Cottonwood Creek Consolidated Irrigation Company, a non-profit mutual inigation
ized under the laws of the State of Utah
Attrr:Pt <siclen t
h 94fi7
j. No Waiver. The failure to enforce or perform any provision set forth in
this Easement shall not be deemed a waiver of any such right.
k. Authority. The individual(s) exccuting this documeirt represents and
warrants that h€/she has the legal authority to convey the Easement described herein.
{STGNATLTRES ON FOLLOWTNG PAGE}
Page 4 ofE
IN WTINESS WHEREOF, the parties have executed this Easement and which is effective as of
the last date signed herein.
GRAI.ITOR:
PACIFICORP, an Oregon corporation
By:
Its:
Date:
By:
Its:
Date:
GRA}{TEE:
Cottonwood Creek Consolidated Inigation Company, a non-profit mutual inigation company
organized underthe lanrs of the State of Utah
Page 5 of8
STATE OF OREGON
COIJNTY OF MULTNOMAH
): ss.
)
I hereby c€rtify rhat on this
-
day of 201, before me, a Notary
Public ofthe state and county of aforesai4 personally appeared I
known to me or satisfactorily pnoven to be the pennn whose name is subscribed to the foregorng
instnrmelr! who acknowledged that Vhe is the of
PACIFICORP, an Oregon corporation, tbat s/he has been duly authorizod to execute, and has
executed the same in my pr€senoe, the foregoing inshnrment on behalf of the said entity for the
purposes therein set forth, and that the same is its act and deed.
IN WITNESS WHEREOF, I have set my hand and Notorial Seal, the day and year fnst
above written.
Notary Public
srArE oF Lt+Lh
corrNrY* ry-$I hereby certig tliut on tnir .46 aay or .tflf'tnrL
rf the state and county of aforesaid, personally appeared
): slt.
)
Public of the state and county of aforesirid,
known to me or satisfactorily proven to be the person whose qame
0o\bn
fqrat Vhe is the llrustdernt of
Vtre has been duly authorized to execute, and has executed
to the foregoing
instnrment on behalf of the said entity for the purposes
therein set forth, and that the same is its act and deed.
IN WITNESS WHEREOF,
above written.
Notary Publlc
slate of utah
ily Commisslon Expires May 9, 2017
Page 6 of8
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EXHIBIT "A" - Ptge2 of 2
Page 8 of8
TYhen Recorded Retum To:
TEMPORARY EASEMENT
PACIX'ICORP, an Oregon corporation ("Grantor") hereby grants to Cottonwood
Creek Consolidated Irrigation Company, a non-profit mutual irrigation company organized
under the laws of the State of Utah ('Grantee') and its successors and assiens, for value
received, withod warranty, a non-exclusive te,mporary consttrction easement ('Easemenf) over,
under, acrcss and through a portion of Grantor's real propefiy located in Emery County, State of
Utalu known as Assessor Parcel Nunrber: U54025-0002 (the '?roperty") for the ptrpose of
loc*ing constnrcting, operating maintaining and replacing one eight (8) inch High-Density
Polyethylene GIDPE) pipe underground watsr line and apptrtenances related th€rEto (the "Water
X'rcilities') related thercto.
l. Pemritted Use
Grantee, its contractors and subcontractors of any tier, shall use the Easement as a temporary
constnrction lay down are4 for stagrng of Grantee's vehicles and equipment, and for other
conshuction activities necessary and incident to the Water Facilities within the Easement
('Constnrction Activities'). No other excavation or other earthwork shall be allowed in the
Easement without prior written approval of Grantor.
2. Term
The Term of this Easement shall commence on the date of full execution by both parties and
shall automatically expire upon the earlier of: (i) G'rantee's completion of the Project and
reasonable restoration of the surface of the Property impacted by Construction Activities to a
pre-construction condition; or (ii) two (2) years following the date this Easement cornmences.
3. Crrantee's Use of Easement
a^ Grantee's use of the Property is confined to the area illustrated and more
particularly described and depicted in Exhibit "A" (the "Easement Area.")
b. Grantee may not make any use of the Easement Area that interferes with
Grantot's existing or future generation, tansrrissioq distibution or other electic facilities on the
Property, provide{ however, that Grantor may not in the future construct facilities orL over or under
the Easeinent fuea that uorcasonably interfere with Grantee's use of the Easement Area under this
Easement
c. Grantee may not obsUrrct Grantor's roads crossing the Easement Area or
Grantor's use of the Easement Area to obain access to C:rantor's facilities or the Prope$ without
Grantor's prior written approval
d. Grantee may not, without Grantor's prior written approval, excavate or remove
hees within twenf Q0) fwt, of Grantofs distribution wires, shuctures and facilities.
e. Grantee may not store flammable or hazardous materials, or refircl vehicles or
equipment within the Easement Area
f. Fireanns, tobacco and alcohol use, and hunting are not allowed on the
Property.
g. Grantee shall not cornmenc€ the constnrction, reconstruction or replacement
of the Water Facilities on the Property without first obtaining Grantor's written approval of all
constnrction practices to be errployed in performing such work. Grantor's approval of the
construction practices to be employed in the initial construction of the Water Facilities is set
forttr in an agreement entered into contemporaneously with this Easement. Similar written
approvals shall be required for any future construction work on the Property, which approvals
shall not be unreasonably withheld. In addition:
i. Crrantee must provide a consEuction acoess and repair plan showing
Grantee's proposal for maintenance of access by Grantor during constrtrction and any maintenance
activity in the Easement Area Grantor reserves the right to approve such plan prior to the
commencement of constnrction or maintenance activitieg rryhich approval slrall not be unreasonably
withheld.
ii. Grantee may not use constnrction cranes, diggers, track hoes or other
equipment that violate National Electic Safety Code clearance standards, Occupational Safety and
Health Administration clearance standards or more stingent standards as may be imposed on
Grantor by law or regulation for the effrcient and safe operations of Grantor's triower lines.
iii. Upon completion of any construction or maintenance activities, Grantee
must return the Easernent Area and all atrectd acoess roads to a condition the same as or better than
their pre-construction condition, with the exception of any trees that were trernoved as part of the
installation of the Water Facilities.
4. Grantor's Use. Grantor r€senres the righf at any time, to cross the Easement Area with
equipment personnel, overhead and underground power lines, and access roads. Grantor shall
have no obligation to maintain the roads located on the Easement Area or to keep such roads in
passable condition for the benefit of Grantee. Grantor further r€serves the right to use the
Easement Area for its existing elecEic utility operations, and for such future uses that Grantor
deems necessary or desirable, so long as such uses or.ights do not unreasonably interfere with
Grantee's uses of Easement Area tmder this Easement. Cnantor further resenres the right to grant
similar uses or rights to others.
5. Release. Assumotion of Risk and Indemnification.
a- Grantor makes no representation or warranty concerning the suitability of the
Property for Grantee's use. Grantee accepts the Property "AS I.S' in its present condition,
including the presence of hazardous substances, if any. Grantee forever releases and discharges
Grantor from any claims arising from the condition of the Property.
b. Grantee assumes the risk of using the Property in its present condition and
acknowledges the prtsence of electrical facilities on the Property which are potentially
Page 2 of8
dangerous to persons and property. Grantee agrees to employ all necessary care and precaution
when using the Properly.
c. Grantee agrees to indemniff, defend, and hold harmless Grantor and Grantor's
affiliated companies, offrcers, directors, shareholders, agents, employees, successors, and
assigns, from and against all liabilities, claims, damages, liens, fines and penalties (including
court costs, afiorneys' fees, and litigation expenses) directly or indirectly arising from or caused
bV (i) a breach by Grantee of any provision of this Easement (ii) Crrantee's use and occupation
of the Property, (iii) any ast or omission of Grantee on the Property, or (iv) any act or omission
of any independent contactor retained by Grantee, or anyone directly or indirectly employed by
them, or anyone authorized by Grantee to contnol or exercise control over work on the Property.
This indernnification provision shall apply to all theories of recovery, including breach of
confiact or warrarty, negligence, and stict or statutory liability, except for negligence of the
Grantor. In the event any indemnified claim is caused by the joint or concurrent negligence of
the Grantor and Grantee, Grantee shall indemnifr Grantor only in proportion to Grantee's own
negligence or liability. The indemnity provisions herein shall survive termination of this
Easement.
6. Damaees. In addition to the general indemnification provisions above, Grantee agrees that
if Grantee or its activities under this Agreement cause any damage to Grantor's utility equipment
or facilities, whether above or below groun4 Grantee will reimburse Grantor for all costs
incurred by Grantor to repair or replace such damaged equipment or facilities. As used in this
Sectiorg any rcference to Grantor's equipmcnt or facilities shall include any equipment or
facilities owned by third parties that are laurfrrlly located on the Grantor's Land, whether by
easement, license, lease, or otherwise
7. Miscellaneous Provisions.
a. Existing Encumbrances. This Easement is subject to dl rights of way and
encumbrances (whether or not recorded) of any kind existing at the time of the creation of this
Easement.
b. Countemarts. This Easement may be executed in any number of counterparts,
each of which when executed and delivered shall be deemed to be an original, and all of which
shall together constitute one and the same instnrment.
c. No Publis Dedication. The provisions of this Easement are not intended to and
do not constitute a dedication for public use, and the rights created by this Easement are private
and for the benefit only of the parties hereto, their successors and assigns.
d. Compliance with Laws: Liens. Grantee must secure all permis and comply
with all applicable laws, rules and regulations of any public authority relating to Grantee's use of
the Property. Grantee must keep the Property free from liens arising from Grantee's activities.
e. Time of Essence. Time is of the essenoe in the performance of the parties'
obligations under this Easement.
Page 3 of8
f. Affomey's Fees. If a party brings an action to enforce this Easement, the
prevailing party in the action will be entitled to an auard of reasonable attomey's fees, court
costs and litigation expeffes.
g. Applicable Law. This Easement shall be governed by and construed in
accordance with the laws ofthe State of Utah.
h. Jur.v Trial Waiver. To the fullest extent permitted by laq each of the parties
hereto waives any right it may have to a trial by jury in respect of litigation dircaly or indirectly
arisrng out of, under or in connection with this Easernent. Each party firther waives any right to
consolidate, or to request the consolidation of, any action in which a jury trial has been waived
with any other action in which a jury trial cannot be or has not been waived.
i. Notices. Notices to be given rmder this Easement shall be delivered or mailed
to the following:
Pacific Power
Attn.: Property Management
825 NE Multrpmah She€t, Suite 1700
Portland, OR 97232
Cottonwood Creek Consolidated lrrigation Company, a non-profit mutual irrigation
organized under the larrs of the State of Utah,rtl rflaa-,,-son &tstd*/
SqsJ 7
j. No Waiver. The failure to enforce or perform any provision set forth in this
Easement shall not be deemed a waiver of any such right.
k. Authority. The individual(s) executing this document represents and warrants
that he/she has the legal authority to convey the Easement described herein.
{STGNATURES ON FOLLOWTNG PAGE}
Page 4 of8
IN WITNESS WHEREOF, the parties have executed this Easeinent and wtrich is effective as of
the last date signed herein.
GRANTOR:
PACIFICORP, an Orregon corporation
By:
Its:
Date:
GRA}.ITEE:
Cottonwood Creek Consolidated lrrigation Company, a non-profit mutual inigation compary
organizcd under the laws of the State of Utah
By:
Its:
Page 5 of8
STATEOFOREGON ): ss.
cor.JNTY OF MULTNOMAH )
I hereby certiry that on this _ day of 20[-before me, a Notary Public
of the state and county of aforesaid, personally appeared
known to me or satisfactorily proven to be the penon whose name is subscribed to the foregoing
insturnent, who acknowledged that he is the of PACIFICORP,
an Oregon corporation, that he has been duly authorized to execute, and has executed the saure in
my presence, the foregoing instument on behalf of the said entity for ths purposes therrein set
forth, and that the same is its act and deed.
IN WITNESS WHEREOF, I have set my hand and Notorial Seal, the day and year first
above written.
Notary Public
STATE OF \,\hh
couNry o, E rrrrl i '
I hereby c€rtiry that on tfris 33 aay of\oCpwr hf
of the state and county of aforesaid, personally appeared
known to me or satisfactorily proven to be the perlpn whose name iI subscribed to the foregoing . , t.l
instnrment, who acknowledged that s/h;il',rl;'ffirr;i;;i_-;iU*U*rif"fid+:4qY1.,, O
,2-0tllbefor-e me, aNotary Public
r r !, 'lr,rlrl v-Lpuerrr.arlrr triltrrer. ,^-flo/l *.
that s/he has been duly authorized to execute, and has executed the same in my prcsenoe, tlre \rr'1*
foregoing instnrment on behalf of the said entity for the purposes therein set forth, and that the
same is its act and deed.
IN WITNESS WHEREOF, I have
above written.
set my hand and Notorial Seal, the day and year first
ilhiil.;t PFrl(
1,,1sin1,,r Pttbllc
titi.ilo 0i Utah
Mv Ccmn's,;i3n ixt:'es t'iaY 9' 2017
i,,jt1'.,1s:,i,:, i ::irt, lii 3, 6S!1E Page 6 of8
EXIIIBITA-Page lof2
Temporary Construction Easement 45 feet wide 20 feet on thc North and East
side and 25 fe€t on the lUest and South side of the following described
centerline:
Bcgimilrg rt a poiat on Gnatr'c north propcrty lbe u,tioh is liB8r28'39" E, 92.?4 feet
aloog tte Scctftn line frm tte l.trortt*cst Gmr ofttc No,rttaec qu.mcr of ttc
ltqthrsr qEartcr of Scctirr 9. Tomrhip 19 Sdut Rrrgc 8 Eest SLB&M: rhcncc
Sf58'31* E. 30.59 feet; 6cace N 89ot4'45" E. 1245.8I foet: ttcacc S 00"45'01" E.
555-95 fter.
Cootdnins t-76 mrc* mre or lcse
Page 7 of8
EXHIBITA-Page2of2
Page 8 of8