20160505Notice of Affiliate Transaction.pdf

i?[CEIVED R. Jelf RichardsYPac I F I co R
10, u ;-; 1 ;;,,, ?';;:;xii,;:-r,;";r,,?,;;Vice President and General Counsel
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May 5,2016
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 Commitmentl l7(2), incorporated in the
Idaho 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 "Berkshire
Hathaway Energy Company" or "BHE"), of the below-noted affiliated interest transaction with
U.S. Bank National Association ("U.S. Bank").
PacifiCorp is a wholly-owned indirect subsidiary of BHE. BHE is a subsidiary of Berkshire
Hathaway Inc. 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 hold in excess of five
percent of U.S. Bancorp common stock. U.S. Bancorp is the parent company of U.S. Bank
National Association. Therefore, Berkshire Hathaway, Inc.'s ownership interest in BHE and U.S.
Bank may create an affiliated interest relationship between PacifiCorp and U.S. Bank in some
Pacifi Corp jurisdictions.
U.S. Bank is a financial services company providing lending and depository services, credit card,
merchant, and ATM processing, mortgage banking, insurance, trust and investment management,
brokerage, and leasing activities. U.S. Bank has a facility located at 619 SE Main Street,
Roseburg, Oregon. The local district is in need of placing a utility pole near the SW corner of
the lot on which the aforementioned U.S. Bank facility resides. The district requires a five foot
by five foot area in which to install the pole.
Because there is a zero lot line for the property, an easement with U.S. Bank is required for the
pole installation. U.S. Bank has agreed to grant PacifiCorp, at no cost, a nonexclusive perpetual
easement for the installation, maintenance and continued use of the pole. A copy of the
Easement Agreement ("Agreement") is included with this Notice as Attachment A.
Jean D. Jewell
Notice of Affiliate Transaction
May 5,2016
The Agreement contains standard commercial terms and conditions to protect the Company's
ability to provide safe and reliable service. Thus, the execution of the Agreement with U.S.
Bank is in the public interest.
Please do not hesitate to contact me if you have any questions.
R. JeffRichards
Vice President And General Counsel
PacifiCorp
Enclosures
After recording return to:
PacifiCorp
825 NE Multnomah Street, Suite 1700
Portland, OR 97232
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (the "Agreement") is made as of May _,2016,
between U.S. BANK NATIONAL ASSOCIATION, a national banking association ("Bank") and
PACIFICORP, an Oregon corporation ("Grantee").
Bank holds a real property interest in certain real property (the "Property")
located at 619 SE Main Street, Roseburg, Oregon, as legally described on the
attached Exhibit A.
Grantee desires to obtain, and Bank desires to grant, certain easement rights to
and upon the Property.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Bank and Grantee agree as follows:
Grant. Subject to the restrictions set forth in this Agreement, Bank hereby
quitclaims to Grantee a nonexclusive perpetual easement over, under, along,
across and through a portion of the Property as legally described on Exhibit B
attached hereto and incorporated herein (the "Easement Area") solely for the
construction, reconstruction, operation, maintenance, repair, replacement,
enlargement, and removal of Grantee's electric powff transmission, distribution
and communication lines and all necessary or desirable accessories and
appurtenances thereto, including without limitation: supporting towers, poles,
props, guys and anchors, including guys and anchors outside of the right of way;
wires, fibers, cables and other conductors and conduits therefor; and pads,
transformers, switches, vaults and cabinets (the "Work").
Term. The rights herein granted shall continue indefinitely (the "Term").
Notwithstanding the foregoing, Bank may terminate this Agreement upon written
notice to Grantee in the event Grantee ceases to use the Easement Area for a
continuous period of two (2) years, in which event all rights granted hereunder
and any improvements remaining in the Easement Area shall revert to or
otherwise become the property of Bank.
A.
B.
1.
2.
-r.
4.
Maintenance. Grantee shall maintain and operate the Easement Area, in such a
manner as to comply with all rules, laws, ordinances and requirements regarding
its maintenance and use of the Easement Area and shall obtain any and all
required permits and licenses at its sole cost and expense.
Insurance/Indemni fication.
a. Maintenance of Insurance. Grantee shall maintain in full force and effect at all
times during the Term the following insurance coverages:
i. Commercial general liability insurance, including completed operations
coverage, with a limit of liability of at least $1,000,000 per occurrence, and
52,000,000 in the aggregate, for bodily injury and property damage;
Commercial auto liability insurance with a limit of liability of at least
$1,000,000 per occurence for the injury or death of one or more persons;
Worker's compensation insurance as required by the laws of the jurisdiction
where any Work is performed; and
iv. Employer's liability insurance with a minimum limit of $500,000.
Grantee may satisfy the insurance limits set forth in (a) and (b) above through an
Umbrella or Excess Liability insurance policy that provides Follow Form Excess
Coverage and otherwise through a self-insured retention progam.
b. General Policy Requirements. Each required insurance policy must be written by a
financially responsible company with an A.M. Best rating of A- or better that is
authorized to do business in the state in which the Work is performed. Grantee shall
ensure that the commercial general liability and commercial automobile liability
policies required hereunder shall identit, Bank, the project manager for the Work (if
any), and any other party reasonably requested by Bank as additional insured(s).
Policies for such insurance shall provide that such insurance is primary and that any
other insurance or self-insurance available to Bank is in excess of and non-
contributory to the insurance provided by Grantee. Compliance by Grantee with the
foregoing insurance requirements shall not relieve it from liability for amounts in
excess of the limits of insurance.
c. Basis for Coveraqe. For insurance policies other than the professional liability
insurance policy (if required), coverages shall be maintained without intemrption
during the Term. Notwithstanding the foregoing, coverage for claims for damages
because of bodily injury, sickness or disease, or death of any person other than
Grantee's employees or claims for damages insured by usual personal injury liability
coverage shall be written on a combined single limit coverage for bodily injury and
property damage on an occurrence basis, and any excess/umbrella coverage shall
also be on an occulTence basis in excess ofsuch coverage.
d. Certificates of Insurance. Upon execution of this Agreement and any renewal of
such insurance during the term hereof, and otherwise within 10 days of a request by
11.
lll.
Bank, Grantee shall provide Bank with an industry-standard insurance certificate
evidencing that the insurance policies or self-insured retention required hereunder
are in full force and effect. Grantee shall promptly notiS Bank in writing of the
threat of any cancellation or substantive modification of any insurance policy
required hereunder.
e. Indemnification. Grantee agrees to indemnify and hold Bank and Bank's project
manager (if any) harmless from and against any and all claims, liabilities, suits,
causes of action, costs and expenses (including reasonable attorneys' fees and
costs) of and against Bank, its successors or assigns and Bank's project manager
(if any), to the extent resulting from:
Any breach by Grantee or any subcontractor of any of Grantee's
warranties, obligations or duties under this Agreement;
Any claim by a third party relating to negligent acts or omissions or
willful misconduct of Grantee, any subcontractor, anyone directly or
indirectly employed by them or anyone for whose acts they may be liable;
Mechanic's Liens. Except only to the extent caused by the failure of Bank to make
payment to Grantee as required by this Agreement, Grantee shall indemnifu and
defend Bank, and save Bank harmless from any claims or liens filed or threatened by
Grantee or any subcontractor, sub-subcontractors of any tier, or suppliers of any tier
related to any work, and any related costs (including attomeys' fees related thereto or
to the enforcement of this subparagraph), liabilities, judgments, executions, and
disbursements and shall immediately remove any liens upon demand of Bank.
Survival. All indemnities set forth in this Agreement shall survive the termination of
this Agreement.
Restrictions on Grantee's Use of Easement Area: Damage. Grantee shall use the
Easement Area only as necessary for the purpose described in Section I above,
and shall use commercially reasonable efforts not to interfere with Bank's use and
enjoyment of the Property. Grantee shall provide Bank with advance notice of
any Work to be performed in the Easement Area and otherwise coordinate with
Bank so as to minimize and interference with any access to the Property and
Bank's operations; provided that, as necessary to respond to an Emergency Condition
(as defined below), Grantee may, at anytime, without providing advance notice to or
coordinating with Bank, enter onto and conduct repairs or adjustments within the right-
of-way area granted herein. As used herein, the term "Emergency Condition" shall mean
a condition or situation that is imminently likely to endanger life or to cause
injury/damage to person or property or that is imminently likely to cause a material
adverse effect on the security of, or damage to, Grantee's electrical system.
Grantee shall keep the Easement Area free and clear of debris at all times and
shall not use the Easement Area for the storage of material. Grantee agrees to
repair any and all damage caused to the Easement Area or the Property by
Grantee, its employees, agents or contractors, including but not limited to the
g.
5.
6.
relocation (including replacement if applicable) of any trees removed to
accommodate Grantee's use of the Property and the restoration of the Easement
Area following any Grantee work thereon to the same or better condition as the
Easement Area existed prior to such work.
Bank's Use of Easement Area. During the Term, Bank may not erect on the
Easement Area any building or other structural improvement. Grantee has the
present and future right to keep the Easement Area and adjacent property clear of all
brush, trees, timber, structures, buildings and other hazards which might endanger
Grantee's facilities or impede Grantee's activities. At no time shall Bank place, use or
permit any equipment, material or vegetation of any kind that exceeds twelve ( 12) feet in
height, light any fires, place or store any flammable materials, on or within the
boundaries of the Easement Area. Subject to the foregoing limitations, Bank reserves the
right to use the surface of the Easement Area for other purposes not inconsistent with the
purposes for which this Easement has been granted. A proposed use by Bank shall be
considered not inconsistent with the purposes for which this Easement has been granted if
Bank obtains the prior written consent of Grantee, which Grantee may not
unreasonably withhold, condition or delay, and which consent shall be deemed to
have been granted if Grantee fails to grant or withhold its consent in writing on or
before the thirtieth (30th) day following the date on which Bank confirms
Grantee's receipt of Bank's written notice.
Default. If Grantee shall at any time violate any of the material terms, covenants
or conditions contained herein or fail to perform any of its obligations contained
herein in a timely fashion within thirty (30) days following Grantee's receipt of
written notice thereof, Bank shall have the right to declare this Agreement null
and void and of no further force and effect upon written notice to Grantee. Upon
such event, Grantee shall promptly remove any improvements from the Easement
Area and return the Easement Area to Bank in the same condition as existed when
it was received by Grantee.
Notice. All notices, demands and requests ("notice") required or permitted to be
given under this Agreement must be in writing and shall be deemed to have been
properly given or served either on the date of hand delivery or the date such
notice is deposited with a national parcel service (e.g., UPS or Fed Ex), or with
the United States Mail, addressed to Bank or Grantee, as the case may be, prepaid
and registered or certified mail or delivery charges prepaid, return receipt
requested, at the following addresses:
To Grantee:Pacific Power
4025 Old Highway 99 South
Roseburg, OR 97471
7.
8.
With a copy to: Pacific Power
825 NE Multnomah Blvd, Ste. 1700
Portland, Oregon 97232
Attn: Right of Way Department
To Bank: U.S. Bank National Association
Corporate Real Estate
777 East Milwaukee Avenue
Milwaukee,WI 53202
Attn: Robin Preston
With a copy to: U.S. Bank National Association
800 Nicollet Mall
BC-MN-H2IR
Minneapolis, Minnesota 5 5 402
Attn: Corporate Real Estate - Corporate Counsel
Rejection or refusal to accept or the inability to deliver because of changed
address of which no notice was given shall be deemed to be receipt of the notice,
demand or request. Either party may change its notice address so long as it
notifies the other party in writing.
9. Miscellaneous.
(a) Generally. This Agreement shall be binding upon and inure to the benefit
ofand be enforceable by the respective successors and assigns ofthe parties hereto and
shall run with the land. Time is of the essence with respect to the payment and
performance of the obligations set forth in this Agreement. No third party beneficiary
rights are created by this Agreement.
(b) Entire Agreement. This Agreement contains the entire agreement between
the parties and may be amended only by an instrument in writing signed by both parties.
All approvals required hereunder shall also be in writing.
(c) Grantee's Cost. A11 Work contemplated under this Agreement shall be
performed by Grantee at its sole cost and expense.
(d) Jurv 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 directly 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 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.
(e) Counterparts. This Agreement may be executed in any number of
counterparts with the same force and effect as if all signatures were appended to one
document, each of which shall be deemed an original.
(0 No Representations Regardine Title to Propertv. The parties hereby
acknowledge that Bank makes no representations or warranties regarding the nature of its
real property interest in the Property, including the Easement Area. This
acknowledgment is a material inducement for the Bank to enter into this Agreement.
[Remainder of page intentionally left blank
Signoture and aclotowledgment pages follow.J
WHEREFORE, Bank and Grantee have executed this Agreement as of the date first
above written.
BANK:
U.S. BANK NATIONAL ASSOCIATION
Name:
Its:
STATE OF
ss.
COUNTY OF
On this day of ,2016, before me, the undersigned, a
Notary Public in and for the State of , duly commissioned and sworn,
personally appeared , to me known to be the person who signed as
of U.S. BANK NATIONAL ASSOCIATION, the banking association that
executed the within and foregoing instrument, and acknowledged said instrument to be a free and
voluntary act and deed and the free and voluntary act and deed of U.S. BANK NATIONAL
ASSOCIATION for the uses and purposes therein mentioned; and on oath stated that he was
authorized to execute the said instrument on behalf of said U.S. BANK NATIONAL
ASSOCIATION.
IN WITNESS WHEREOF I have hereunto set my hand and official seal this day of
_,20-.
Notary Public
By:
GRANTEE:
PACIFICORP
Jana Mejdell, Director Real Estate Management
STATE OF OREGON )
) ss.
coLrNTY OF MULTNOMAH)
On this day of 2016, before me, the undersigned, a
Notary Public in and for the State of Oregon, duly commissioned and sworn, personally appeared
Jana Mejdell, to me known to be the person who signed as Director, Real Estate Management, of
PacifiCorp, the person that executed the within and foregoing instrument, and acknowledged
said instrument to be her free and voluntary act and deed and the free and voluntary act and deed
of PacifiCorp, for the uses and purposes therein mentioned; and on oath stated that she was
authorized to execute the said instrument on behalf of said PacifiCorp.
IN WITNESS WHEREOF I have hereunto set my hand and official seal this day of
2016.
Notary Public
By:
EXHIBIT A
Leeal Description of the Propertv
ROSEBURG, BLOCK 40, LOT 5,6, PT 3, PT 4 & pT 7 (OUT DOWNTOWN DEVDIST) SEE
R70353 FOR BAL TL,ACRES.l5
Assessor's Map No. 27-05W-I9BC Parcel No. 09600
Exhibit B
EXHIBIT B
Leeal Description of the Easement Area
PROPERTY DESCRIPTION
Section: 19BC, Township: 27S, Range: 05W, WILLAMETTE Meridian,
DOUGLAS County, State of OREGON.
Map / Tax Lot or Parcel No.: 27-05W-19BC-09600
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is drawing should be used only as a representation of the
Iocation of the easement area. The exact location of all
structures, lines and appurtenances is subject to change within the
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boundaries ofthe described easement area.Exhibit n
YPA(IFTCPOWER\ A DtVtStON OF PACTFTCORPEXHIBIT B