20160202Notice of Affiliate Transaction.pdf

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February 2,2016
VIA OVERNIGHT DELIWRY
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:
R. Jelf Richards
Wce President and General Counsel
1407 W. North Temple, Suite 320
Salt Lake CiO, UT 84116
801-2204734 Ollice
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This letter will serve as written notice pursuant to Commitmentl l7(2), incorporated in
the ldaho Public Utilities Commission Order No. 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 (now
known as Berkshire Hathaway Energy Company or "BHE"), of an affiliate interest transaction
with Huntington Cleveland Irrigation Company ("HCIC").
HCIC is a non-profit corporation that owns water rights in the Huntington Creek
Drainage Basin located in Emery County, Utah. PacifiCorp currently owns approximately one-
third of the ownership shares of HCIC and receives an allocation of water from HCIC based on
such ownership. PacifiCorp also appoints one member to HCIC's ten-person board of directors.
This ownership interest and appointment authority may be deemed to create an affiliate interest
in some PacifiCorp jurisdictions.
HCIC is constructing a project to enclose existing open irrigation trenches in pressurized
pipes. The project will decrease the water quantity and quality losses associated with open trench
irrigation and will thereby increase the value of the HCIC water rights for the collective benefit
of all shareholders. The project was jointly funded by HCIC shareholders. In conjunction with
the approval of the project, the shareholders all agreed not to charge easement fees charges in
conjunction with the land rights granted to facilitate the project.
The project requires a perrnanent pipeline easement across approximately 0.571 acres
(830 feet in length and 30 feet in width) of PacifiCorp property and a temporary construction
easement across approximately 0.667 acres of PacifiCorp property (830 feet in length and 35 feet
in width). The subject property was acquired in conjunction with the acquisition of water rights
and is not used for power generation or delivery purposes. The value of the easements has been
internally estimated at $320. This fee has been waived in accordance with the above-described
Idaho Public Utilities Commission
February 2,2016
Page2
agreement. A copy of the Non-Exclusive Pipeline Easement Agreemenr is included with this
notice as Attachment A.
The water received through HCIC constitutes the primary water supply for PacifiCorp's
Huntington Plant and a secondary water supply for PacifiCorp's Hunter Plant. By improving
efficiencies and minimizing waste, the project helps ensure an unintemrpted water supply for
these plants. Granting such easements is in furtherance of this objective. The agreement to waive
easement fees minimizes the overall project costs, a large portion of which would be passed
through to PacifiCorp as the largest shareholder in HCIC. Accordingly, granting such easements
without charge is in the public interest.
Please do not hesitate to contact me if you have any questions.
Best Regards,
R. JeffRichards
Vice President and General Counsel
PacifiCorp
Enclosures
WHEN RECORDED, RETURN TO:
PacifiCorp, an Oregon Corporation
Property Management Department
1407 West North Temple, Suite 110
Salt Lake City, Utah 841l6
Attn: Erik Carlson
NON.EXCLUSIVE PIPELINE EASEMENT AGREEMENT
PacifiCorp, an Oregon Corporation, whose address is 1407 West North Temple, Salt
Lake City, Utah 84116, ("Grantor") for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, hereby grants to Huntington Cleveland
Irrigation Company, a non-profit mutual irrigation company organized under the laws of
the State of Utah ("Grantee") a perpetual non-exclusive easement and right of way
("Easement") over and across certain parcels of real property owned by Grantor ("Grantor's
Land") located in Emery County, Utah, more particularly described in Exhibit "A" hereto, for
the sole purpose of constructing, operating, maintaining, repairing, inspecting and replacing a
single pressurized irrigation pipeline and related facilities (the "Pipeline") subject to the terms
and conditions set forth below, over and through Grantor's Land, said easement lying within a
strip thirty (30) feet wide and extending fifteen (15) feet on each side of and lying parallel and
adjacent to the lines of reference and projections thereof described more particularly in Exhibit
ttBtt, hereto.
l. Grantee's Use.
a. Grantee shall have a non-exclusive right to install, operate, inspect, repair,
replace, and maintain the Pipeline. During construction periods, not to exceed eighteen (18)
months from the date of this Easement, Grantee and its agents may use thirty-five (35) additional
feet of Grantor's property along and adjacent to said Easement in connection with the
construction of said facilities.
b. Grantee will not store materials or refuel vehicles or equipment on Grantor's
Land. The use of hazardous materials is prohibited on Grantor's Land.
c. Grantee acknowledges that Grantor's existing or future power lines are or may be
located within the Easement boundaries and agrees to conduct its activities in strict compliance
with all applicable laws, codes, rules, regulations, and standards regarding such power lines.
Granteeos use of Grantor's Land shall comply in all respects with National Electric Safety Code,
and OSHA clearance standards. Grantee shall not make or allow any use of Grantor's Land that
is inconsistent with or that may interfere with Grantor's operation, maintenance, repair, or
upgrade of its existing power line facilities and installations or any additional power line
facilities or installations that may be constructed hereafter.
d. At no time shall Grantee place, use or permit to be used on said Easement
construction cranes or other equipment having a boom or similar attachment which may come in
contact with Grantor's overhead electric lines. At no time shall Grantee place any equipment or
material of any kind that exceeds fifteen (15) feet in height, or that creates a material risk of
endangering Grantor's facilities, or that may pose a risk to human safety. Grantee shall maintain
a minimum distance of twenty (20) feet between equipment and transmission line conductors
(wires).
e. Grantee will not excavate within fifty (50) feet of Grantor's existing transmission
structures. Grantee shall maintain a minimum distance of fifty (50) feet between the Pipeline
and Grantor's structure(s) and transmission line conductors (wires). Grantee shall maintain a
minimum distance of thirty-five (35) feet from finished grade to conductors. Grantee shall
maintain a minimum distance of fifty (50) feet between approved facilities and the point where
the transmission line (steel/wood pole/guy anchor/steel pole) enters the earth.
f. Grantee shall, at its own expense, promptly repair any damage to the Easement
area or adjacent lands to Grantor's satisfaction caused by, or in any way arising out of Grantee's
use of the Easement, including replacing topsoil to the original surface contour or elevation.
Grantee agrees to repair any surface damages due to erosion or settling that may occur due to
natural precipitation events within the easement area. This commitment shall be for a period of
ten (10) years or until native vegetation is established through natural processes. If Grantee fails
to do so within a reasonable amount of time, Grantor may perform the restoration work at
Grantee's expense.
g. This Easement is limited to the construction of the identified Pipeline along the
route described herein. Grantee may not install laterals, taps, or subfeeds from the Pipeline
without a separate grant of easement from Grantor.
h. Grantee shall be solely responsible for the cost of any cathodic or other protection
of the Pipeline necessitated by its proximity to Grantor's existing or future electric power lines.
i. Grantor's maintenance and future construction of additional power lines and other
facilities require the use and operation of equipment weighing twenty thousand (20,000) pounds
per axle (including wire pullers and similar equipment weighing in excess of one hundred
thousand (100,000) pounds and cranes weighing one hundred thirty thousand (130,000) pounds
above and over the Pipeline. Grantee shall bury the Pipeline to a depth that is sufficient to
protect the Pipeline from Grantor's use of equipment with weights identified above. Grantee
shall be solely responsible for any damage to Grantee's facilities caused any failure to meet this
standard.
j. Grantee shall fully restore and level the surface of Grantor's Land, as nearly as
can reasonably be done, from any damage caused by construction, inspection, maintenance,
repairs or removal of the Pipeline. If Grantee fails to do so within a reasonable amount of time,
Grantor may perform the restoration work at Grantee's expense. Grantee shall compensate
Grantor or its tenants for any damage caused by, or arising out of Grantees Use of Easement
area, including without limitation, damage to fences, livestock, or crops and timber located
anywhere on Grantor's property.
2. Right of Access. Grantee shall have the right of reasonable ingress and egress to
and from said Easement over and across Grantor's Land at such locations as Grantor shall, from
time to time designate, provided that such access does not interfere with Grantor's utility
operations.
3. Grantor's Use. Grantor expressly reserves the right to use the Easement for any
purpose that is not inconsistent with the purposes for which this Easement is granted, including
the right to cross and re-cross the Easement with equipment, personnel, overhead or underground
power lines, and access roads at any location or locations, and to grant or convey additional uses
of the Easement to others for any purpose not inconsistent with the rights granted hereunder.
Grantee will provide adequate protection for the Pipeline for such uses.
4. Use of Grantor's Remaining Property. This Easement shall impose no restrictions
upon Grantor's use of Grantor's Land outside the Easement ("Grantor's Remaining Property.")
Any uses of Grantor's Remaining Property, including but not limited to uses for electricity
generation, transmission or other utility purposes, shall not be deemed to interfere with Grantee's
uses under this Easement. Any use by Grantee of Grantor's Remaining Property shall be strictly
limited to access as provided in this Easement. This Easement confers no secondary rights upon
Grantee with respect to Grantor's Remaining Property.
5. Relocation. In the event the Pipeline interferes with Grantor's use of the
Easement or Grantor's Land, Grantee shall relocate the pipeline to a location mutually agreeable
to Grantor and Grantee, all at Grantee's sole cost and expense. Such relocation shall be
completed within a reasonable time after notice by Grantor.
6. Indemnification. Grantee shall protect, indemnify and hold harmless Grantor, its
officers, directors, employees, subsidiaries and affiliates (collectively "lndemnitees") from and
against any losses, claims, liens, demands and causes of action of every kind, including the
amount of any judgment, penalty, interest, court cost or legal fee incurred by the Indemnitees or
any of them in the defense of same, arising in favor of any pafty, including governmental
agencies or bodies, on account of taxes, claims, liens, debts, personal injuries, death or damages
to property, violations of Environmental Laws and Regulations, and all other claims or demands
of every character arising directly or indirectly out of Grantee's use of or activities on or around
Grantor's Land, exceptto the extent such losses, claims, liens, demands and causes of action are
directly or indirectly caused by the Indemnitees. For purposes of this agreement,
"Environmental Laws and Regulations" shall mean all present and future federal, state and local
laws and all rules and regulations promulgated thereunder, relating to pollution or protection of
the environment.
6. Damages. In addition to the general indemnification provisions above, Grantee
agrees that if Grantee or its activities under this Easement 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 and all loss
of income suffered by Grantor as a result of such damage. As used in this Easement, any
reference to Grantor's equipment or facilities shall include any equipment or facilities owned by
third parties that are lawfully located on the Grantor's Land, whether by easement, license, lease,
or otherwise.
7. Abandonment. If Grantee ceases to use the Easement for a period of one year,
this Easement shall terminate thirty (30) days thereafter. Upon termination Grantee shall remove
its Pipeline and restore the land as near as possible to its condition prior to Grantee's entry
thereon; or, with Grantor's prior written permission, leave all or a portion of its Pipeline in place
and relinquish all right, title, and interest to the Pipeline to Grantor. In the event Grantee should
leave its Pipeline in place, Grantee shall nevertheless continue to indemnifu Grantor as provided
in paragraph 6.
8. Taxes and Assessments. Grantee shall pay all taxes and assessments of any kind
which shall be levied against the Easement by reason of Grantee's use or occupancy thereof,
except those being contested in good faith, and shall keep the Easement free from any liens that
may attach thereto by reason of Grantee's use or occupancy thereof.
9. Litigation Expense. If any suit or action arising out of or related to this Easement
is brought by any party, the prevailing party or parties shall be entitled to recover the costs and
fees (including, without limitation, reasonable attorneys' fees, the fees and costs of experts and
consultants, copying, courier and telecommunication costs, and deposition costs and all other
costs of discovery) incurred by such party or parties in
such suit or action, including, without limitation, any post-trial or appellate proceeding, or in the
collection or enforcement of any judgment or award entered or made in such suit or action.
10. Waiver of Jury Trial. To the fullest extent permitted by law, each of the parties
hereto waives any right it may have to a trial by ju.y in respect of litigation directly or indirectly
arising out of, under or in connection with this agreement. Each party further waives any right to
consolidate 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.
IN WITNESS WHEREOF, this Easement shall be dated and effective upon the date of
the last signature below:
By:
Its:
Grantor:
PacifiCorp, an Oregon corporation
Dated:
Grantee:
Huntington Cleveland Irrigation Company, a
non-profit mutual irrigation company
organized under the laws of the State of Utah
Its:
Dated:
On this day of , 2016, personally appeared before me
who being by me duly sworn, did say that he/she is the
signer of the within instrument on behalf of PacifiCorp, an Oregon corporation, and that the
within and foregoing Non-Exclusive Pipeline Easement Agreement was signed on behalf of
PacifiCorp by actual authority.
Notary Public
My commission expires:
ACKNOWLEDGMENT
STATE OF UTAH
STATE OF
ACKNOWLEDGMENT
)
COUNTY OF
) ss.
)
)
) ss.
COUNTY OF )
On this day of 2016, personally appeared before me
who being by me duly sworn, did say that he/she is the
signer of the within instrument on behalf of Huntington Cleveland Irrigation Company, a
non-profit mutual irrigation company organized under the laws of the State of Utah, and
that the within and foregoing Non-Exclusive Pipeline Easement Agreement was signed on behalf
of Huntington Cleveland Irrigation Company by actual authority.
Notary Public
My commission expires:
Exhibit "A"
Description of Grantor's Land
County Parcel No. U3-0058-0005 [PacifiCorp Parcel No UTEM-0036]
Township 17 South. Range 9 East. SLB&M
Section 9: SA.l 9-300-55 (232)#9534 XREF 5132 N/4 NE/4, ALSO BEG SW COR: E I120 FT;
N0'51'49"W 855.62 FT TO CENTER OF N DITCH; N61o09'5 7"W 135.9 FT; N60'21'14"W
101.96 FT; N76"30'09"W lll.74 FT ALONG DITCH; S7ol5'28" W 185.56 FT; 589'50'57"W
800 FT I\{/L TO SEC LINE; S0o54'55"W 809.8 FT TO BEG. (63.37 ACRES)
County Parcel No. U3-0065-0022 [PacifiCorp Parcel No UTEM-0036]
Township l7 South. Range 9 East. SLB&M
Section 16: SA.l 9-300-55 (232) #6408 XREF 5l32Nl2 NE/4, S., ALSO BEG NW COR, NWi4
NW4; E ll20 FT; S 289.58 FT; E 200 FT; S 370.42 FT; W 1320FT; N 660 FT TO BEG.
(100.91 ACRES)
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County Parcel No. U3-0058-0005 [PacifiCorp Parcel No UTEM-0036]
Township l7 South. Ranee 9 East. SLB&M
Section 9: Beginning from a point on the South line of the GRANTOR's property, said point
lying East 15 feet, more or less, from the Southwest corner of said GRANTOR's property;
running thence North 77 feet, more or less, to the a point in the GRANTOR's property said point
lying North 77 feet, more or less, and East 15 feet, more or less from the Southwest corner of
said GRANTOR's property.
County Parcel No. U3-0065-0022 [PacifiCorp Parcel No UTEM-0036]
Township 17 South. Ranee 9 East. SLB&M
Section 16: Beginning from a point on the North line of the GRANTOR's property, said point
lying East 15 feet, more or less, from the Northwest comer of said GRANTOR's property;
running thence Southeasterly 741 feet, more or less, to the South line of the GRANTOR's
property said point lying East 340 feet, more or less from the Southwest comer of said
GRANTOR's property.
Exhibit "B"
Description of Easement