20220713Notice of Affiliate Transaction - HCIC-Redacted.pdf

YPacITICORP
Ttmothy K. Clark
Senior Attomey
71 07 W. North Temple, Suite 320
solt Loke city, uT ,/j76
[phone]offirr
Ti m. Cl a rk@ p a ci fi co r p. co m
VA ELECTRONIC FILING
luly 13,2022
Idaho Public Utilities Commission
I l33l West Chinden Boulevard
Building 8 Suite 20lA
Boise, Idaho 837 14-1021
Attention Jan Noriyuki
Commission Secretary
PacifiCorp Notice of Affiliate Transaction - PacifiCorp and Huntington-
Cleveland Irrigation Company
Case No. PAC-E-05-8
Dear Ms. Noriyuki
Pursuant to Commitmentl l7(2), incorporated in the Idaho Public Utilities Commission
OrderNo.29973, issued February 13,2006, as supplemented by OrderNo.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),
PacifiCorp hereby provides notice of an affiliated interest transaction with Huntington-Cleveland
Irrigation Company (HCIC).
PacifiCorp entered into agreements with its affiliate Huntington-Cleveland lrrigation
Company (HCIC) to secure two lease and management agrcements (collectively, the
"Agreements") for leases of water shares to ensure the continued safe operation of PacifiCorp's
Huntington Thermal Plant ("Huntington Plant") in Emery County, Utah. Verified copies of the
Asreements are included with this Notice as Confidential Attachment A and Confidential
Attachment B.
PacifiCorp holds a 34.1 percent voting shareholder interest in HCIC. Therefore,
PacifiCorp's ownership interest in HCIC creates an affiliated interest relationship between
PacifiCorp and HCIC.
Entering into the Agreements with HCIC is in the public interest because the Agreements
allow PacifiCorp to operate its Huntington Plant efficiently and safely. A period of extended
drought has created conditions for which PacifiCorp requires water in addition to its owned
water rights and shares. The Agreements secure supplies of water that are essential to ensure
PacifiCorp can provide safe and reliable electric service to its customers. The first agreement
between the parties provides for the lease of a further 2,694 acre-feet of 2022 Class A and Class
' -:,I;r-'i--ii:t---.!-ir'r!J
. : :.- ;' irii e: cE
Re
REDACTED
Case No. PAC-E-05-08
Idaho Public Utilities Commission
July 13,2022
Page2
B allocated water. A second agreement secures 68.15 acre-feet more 2022 Class A and Class B
allocated water. Absent the Agreements PacifiCorp would not be able to safeguard its
commitment to system reliability at the Huntington Plant and minimize the risk to meeting its
service obligations to customers.
As the primary source of useable water for Hunting Plant operations, HCIC is the only
entity that can provide the leases to PacifiCorp. Both leases were priced at the market value-a
leasJ rate of il per acre foot. The Agreements also carry the understanding that any leased
water not put to use by PacifiCorp on February 28,2023, will revert back to HCIC for use in the
2023 imgation season.
Please do not hesitate to contact me if you have any questions.
Sincerely,
-7^-b K a^'/-
Timothy K. Clark
Senior Attorney
PacifiCorp
Enclosure:
Confi dential Attachment A.pdf
Confidential Auachment B.pdf
REDACTED ATTACHMENT A
PacifiCorp Notice of Affiliate Transaction
to
REDACTED
AGREEMENT FOR LEASE AND MANAGEMENT OF LEASED
WATER IN THE HUNTINGTON-CLEVEPAND TBRIGATION
COMPANY
This agreement is entered into tnis /Ofl aay of MA,y ,2o22by and between
PacifiCorp, an Oregon Corporation ("PacifiCorp') and the Huntington-Cleveland
Irrigation Company, a Utah non-profit corporation ('Tluntington-Cleveland"). Together,
PacifiCorp and Huntington-Cleveland are referred to singularly as a "Palty" and
collectively as the "Parties."
WHEREAS, Huntington-Cleveland owns water rights and several reservoirs on
Huntington Creek and its tributaries which it uses to supply irigation, municipal and
industial water to its shareholders ("Shareholders"); and
WFEREAS, PacifiCorp owns the Huntington Thermal Plant in Emery County,
Utah ("Huntington Plant"), together with certain water rights and shares of stock in
Huntington-Cleveland "(Shares") for use at the Huntington Plant; and
WI{EREAS, PacifiCorp requires water in addition to its owned water rights and
Shares to operate the Hutington Plant due to a period of extended drought; and
WHEREAS, Hrntington-Cleveland and leasing shareholders intend to lease to
PacifiCorp 2,694 acre-feetof their 2022 Clus A and Class B allocated water at the lease rateofl per acre foot ('?acifiCorp Lease Pool" or'I-ease Pool'). Such leasing shareholders
have agreed not to call for their wBter held in the PacifiCorp Lease Pool; and
WHEREAS, for PacifiCorp to use water rnade available from the kase Pool, said
water must be stored by PacifiCorp in its Electric Lake Reservoir and/or by Huntington-
Cleveland in Huntington-Cleveland's Left Fork Reservoirs for release on PacifiCorp's
request from the date of execution of this Agreement until February 28,2023; and
WIIEREAS, Huntington-Cleveland desires to facilitate this lease of water to
PacifiCorp from the date of execution of this Agreement until February 28,2023,
consistent with this Agreement; and
WHEREAS, as ofthe date of execution ofthis Agreement, Huntington-Cleveland
has allocated 1 acre foot of water for every 5.0 Class A Shares (Primary water) in the
2022 irrigation season; and
WHEREAS, as of the date of execution ofthis Agreement, Emery Water
Conservancy Distict has allocated I acre foot of water for every I.43 Class B Shares
(Project water) inthe 2022 irrigation season; and
WHEREAS, the Parties desire to enter into this Agreement for the leasing and
delivery of the leased water, pursuant to the terms and conditions set forth herein.
1
REDACTED
NOW THEREFORE, the Parties agree as follows:
l. The Parties acknowledge receiving sufficient consideration for the
commitments contained in this Agreement and waive any argument
that they might have in any judicial proceeding that no consideration
exists to support this Agreement or that the consideration received is
not suflicient.
2, The term ofthis Agreement nrns from the date of execution through
February 28,2023.
3. Within 30 days of receipt of invoice from Huntington-Cleveland,
PacifiCorp shallpay Huntington-Cleveland a lump sum payment of
Jl for the 2,694 acre-feet of leased water. Huntington-Cleveland
shall distribute to leasing shareholders their portion of the payment.
PacifiCorp has no responsibility or liability for distribution of funds to
the leasing shareholders.
4. Within 30 days of receipt of invoice from Huntington-Cleveland,
PacifiCorp shall pay Huntington-Cleveland a lump sum payment of
I to cover the costs to administer and deliver the leased water.
5. The Parties acknowledge that, at the date of execution of this
Agreement, PacifiCorp leases from Huntington-Cleveland a lxed
amount defined block of water of 2,694 acre feet, consisting of; I )
Huntington-Cleveland's allocation of I acre foot ofwater for every 5.0
Shares of Class A stock; and 2) Emery Water Conservancy District's
allocation of I acre foot of water for every [.43 shares of Class B
stock. However, if either of these allocations are adjusted throughout
the irrigation season (either increasing or decreasing), then
PacifiCorp's volume of leased water shall not change.
6. Huntington-Cleveland has facilitated an intemal solicitation process with
all its shareholders to create the PacifiCorp Lease Pool utilizing in
substintially the same forrr the shareholder notification letter and the
"Request to Add Water tq PacifiCorp Lease Pool" attached as Exhibit A.
7. The Parties agree to assign water in the PacifiCorp Lease Pool into
PacifiCorp's Electric Lake, and if necessary, Huntington-Cleveland's
Left Fork Reservoirs as follows:
(a) Any water entitled to Huntington-Cleveland in PacifiCorp's
Electric Lake on the date the Agreement is signed will be
allocated first to the Lease Pool.
(b) To the extent there is not sufficient Hurtington-Cleveland
water in Electric Lake to make up the full amount in the Lease
z
Pool, then the remaining amount of watu in the Lease Pool
will be allocated to one or mor€ of Hufington-Clcveland's
Left Fork Reservoirs.
8. The Parties, in coordination with the Huntington River
Commissioner, will account for PacifiCorp's use of the Lease Pool
water throughout the tenn of this Agrcement in orderto detennine the
balance of Lease Pool water to be delivered to PacifiCorp through
February 28,2023.
9, Tluoughout the tErm of this Agreement, PacifiCorp's use of water
sources for the Huntington Plant will be in the following priority:
(a) PacifiCorpos water under its Shares in Huntington-Cleveland
(lluntingon Creek direct flow).
(b) Huntingon-Cleveland water in the PacifiCorp Lease Pool. As
available pursuant to naturally available water in Hrurtington
Creek and the normal and regular operation of Huntington-
Cleveland's reservoirs to provide storage water to all
shareholders.
(c) Release of PacifiCorp's own storage water in Electric Lake.
i0. If PacifiCorp does not use all ofthe Lease Pool by February 28,2023,
PaoifiCorp's right to use said remaining Lease Pool water shall
terrrinate and any said remaining water shall be accounted for as
Huntington-Cleveland's storage water for delivery during the2023
irrigation season. However, in no event shall PacifiCorp be entitled to
any refund of the'paymerfs made under this Agreement.
11. In the event that Huntington-Cleveland uses its best efforts to deliver
the Lease Pool wator but is unableto do so dueto ciroumstances
beyond its control, PaeifiCorp waives any and all damages, claims,
losses, liabilities, costs and expenses against Huntington{levelmd
As used hercfuL the term "circumstances beyond its contnol" means the
lack of water in the Huntington Creek drainage, an order by, or under the
directisn of, the State Enginea of Utah, natural disaster, such as weather,
an earttrquake, firg stonru flood, an act of GoG a\ ar, insurrection, m
labor dispute; an order, requisition or necessity of any govenrmental
authority; or a rEsult of any cause beyond the control and not a result of
any negligance of Huntington-Cleveland, If Huntington-Cleveland
ceases delivery ofthe Lease Pool water pursuant to this paragraph, it
shall nonetheless have an obligation to use its best efforts to resme
delivery of said Lease Pool water as quickly as possible, and to allow
PacifiCorp to aid in such restoration of delivery. Notwithstanding the
foregoing, Hwrtington-Cleveland, by reason ofthis Agresnent, shall not
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incur additional liability beyond any liability it may have for non-
delivery of waterto the Shareholders leasing water in the Lease Pool, nor
shall it be liable for incidental or consequential damages for non-delivery
ofthe Lease Pool water.
12. Any notice given under this Agreement shall be deerned sufficient if in
writing and deliverd by hand or deposited in the United States mail,
postage prepaid, and addressed as follows, or to such other addressee as
either Parry may, frorn time to time, designate in writing:
To Huntington-Cleveland :
Vickie Tucker
HCIC Secretary
P.O. Box 327
Huntington, tn'84528
with acopy to:
J. Craig Smith
Smith Hartvigsen, PLLC
257 East 200 South, #500
Salt Lake City, UT 841I I
To PacifiCorp:
To PacifiCorp: Cody AIIred
Water Resowce Manager
P.O. Box 680
Huntington, UT 84528
with a copy to:
Buffi Morris
Water Rights Administrator
1407 W. NorthTemple #l t0
Salt Lake City, UT 84116
13. This Agreement shall be construed in accordance with the laws of the State of Utah.
All legal actions between the Parties, arising under this Agleement, shall be
conducted exclusively in the Seventh Disnict Court for the State of Utah located
in Emery County, Utah, unless they involve a case with cxclusive federal
jurisdictiorl in which case they shall be conducted exclusively in the Federal
District Court for the District of Utah. Each Party hereby waives any objection
based onforum nonconvenierw ot auy objeetion to venue of any zuch action. To
the fullest extent pcrmitted by law, ench of the Parties hereto waives any right
it may have to a trial by jury in respect of litigation directly or indirecfly
arising out of, under or in connection with this Agreemenl Each Party
firrther waives any right to consolidate any action in which s jury trirl har
been waived with any other action iu which a iury trial cannot be or has not
been waived.
14. This Agreement constitutes the entire agreement and understanding ofthe
Parties, and supersedes all ofors, negotiations and other agreements.
There ar€ no representations or understandings ofany kind not set forth
herein. Any amendments to this Agreement must be in writing and
executed by the Parties.
15.If either Farty to this Agreement is roquired to initiate or defend
litigation to socure performance of ttris Agreement, the prevailing
party in such litigation, in addition to any other relief that may be
granted, whcther legal or equitable, shall be entitled to reasonable
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attorney fees.
15. PacifiCorp, at its sole expense, shall obtain any necessary approvals
frorn the Utah Division ofWater Rights and/or the Utah State
Engineer to use water as anticipated in this Agreemenl Hrmtin4on-
Cleveland shall reasonably cooperate with PacifiCorp in 6Slaining
any such approvals.
17. PacifiCorp, agrees to and shall indemni$, defen{ and hold Huntington-
Clweland and ie directors, officers, agpnB, eurployes, and
represenutives hrrnless fiom and against all liability, Ioss, damage,
costs, or elcpel$es (including reasonable attomey foes and court costs)
arising frmr or as a result of this ageement or the use of water by
PacifiCorp under this Ageerncnt. This indeurnification shall uot apply
to losses, danrages, claims, expenses and other liabilities to the extent
caused by the negligence of Huntingon-Clcveland or its employees,
guests, invitees, contractors, or agents.
18. The Parties waive any right to claim consequential darnages. Neither
Party, nor any shareholder, offrcer, or direotor of a Part5l, shatl be
liabte for any consequential, incidental. or indirect, damagss. Any
claim of damages strall be limited to the total amount paid by or
payable to a Party.
19. Time is of the essenoe in performing all duties and obligations in this
Agreement.
20. Neither this Agreement nor any right or obligation hereunder may be
assigned in whole or part without the e:<press written and execuEd
consent of both Parties.
EXECUTED onthe date written above.
HUNTINGTON-CLEVELAND IRRICATION COMPANY
By:Attest:
Allen Stakel Presiderrt
PACIFICORP
By:EB4P
/t,h q ,i,*$Ar
Victrie Tucker, Secretary
Rz.u#a1(
AT7.a^JIts: Vt+ P,<*u_ryurU fqryU: Letee
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Exhibit A
Huntington-Cleveland Notification Letter and
Request to Add Water to PacifiCorp Lease Pool Form
6
REDACTED
Huntington Clevelond lrrigotion Compony
P. Cr. Box 327 - 170 Wesr 400 North
Hunlinglon. UT 84528
March 22.,2022
Allred, Cody
PO Box 680
Huntington, UT 84528
Huntirgton Clevelond Irrigotion Comporry (HClq hos beetr opprooched by PocifiCorp with a
proposol fo lease o minimum of 2,5OO acre-feel (slfl of stockholder woter for the 2O2?
water seolion at the rote of This lefter is being sent to moke you orryarE of
tha proposal ond to give you the opportunity to porticipate, should you voluntorif choose to
do so.
At this time, this yeor's woter ollocotion has not been set. Howev*, HfiCs Board of
Directors hos determined thot each shoreholder can offer up to 100% of their ovoiloble
2022 wcler ollofmant for leose to PocifiCorp. Both Primory and Project wcter arz eligible
fo be leosed. To moke a portion of your woter avoilable to PocifiCory, you must complefe
the form.on the bock of this letter ond return it to HCTC (o self-oddressed envelope is
enclosed) bv Awtl 6. ?fJf22 . All $nter offered to PocifiCorp will be recorded in o "Lease.
Pool".
In the event the otnount of woter offqed into the Lease?ool et<ce** the omount of wqter
PocifiCorp chooses to leose, woter will be leased frorn shoretrolders on o pro-roto bssis,
which means thot if more woter is offered uo than PocifiCorp elects to teose then eoch
porticipoting shoreholders contribution will be lesg thqn their submifted oercentooe. Any
urr.leased woter renroining in the Lease Pool will rozrzrl bock to eoch individucl shoreholder.
Pcytnent for lwed wotsr will be issuad by HCT.C. Your toxpoyer sociol security number
(SSN) or anployer identificotion number (Efru1must be provided to fqcilitote thot process.
HCICby
Jomes A. Staker
Boord President
a
Ra1ucst to Add tVcter to Paclfihrp Leosc Pool
Allred, Gody
Stockholdcr{s) }&rrc
I hereby submit the followirg perceffqe of my ?O22 ruoter ollotment to the Leose
Pool being mointoined by Hunfiryton Clevelond frrigotion Compony for leose to
PocifiCorp for the 2022 unter yeor.
Pe.rcent of Primary (closs A) wcrter beiry offeted for lease =
Parcant of Project (closs B) ruoter being offerel for leosa =
Stoc kholdcr(s) Print?d !.lonz
Stockholdcr{s) Sbnatt r"
Date
Stockholdcr Tclcpholr
Stocltholder Tox Id:
fndividmlsSN
Corponotion EIN
%
.a
Portnership/[C EfN
REDACTED ATTACHMENT B
PacifiCorp Notice of Affiliate Transaction
to
REDACTED
SECOND AGREEMENT FOR ADDITIONAL LEASE AI{D.
MANAGEMENT OF LEASED WATER IN THE HUNTINGTON.
CLEVELAI\ID IRRIGATION COMPANY
This agreement is entered into this l7-aay o(&NE.2022by and between
PacifiCorp, an Oregon Corporation ("PacifiCorp") and the Huntington-Cleveland
Irrigation Company, a Utah non-profit corporation ('Huntington-Cleveland"). Together,
PacitiCorp and Huntington-Cleveland are referred to singularly as a "Party'' and
collectively as the "Parties."
WHEREAS, Huntington-Cleveland owns water rights and several reservoirs on
Huntington Creek and its tributaries which it uses to supply irrigation, municipal and
industrial water to its shareholders ("Shareholders"); and
WHEREAS, PacifiCorp owns the Huntington Thermal Plant in Emery County,
Utah ("Huntington Plant"), together with certain water rights and shares of stock in
Huntington-Cleveland "(Shares") for use at the Huntington Plant; and
WHEREAS, PacifiCorp requires water in addition to its owned water rights and
Shares to operate the Huntington Plant due to a period of extended drought; and
WHEREAS, Huntington-Cleveland and PacifiCorp entered into an Agreement for
Lease and Management of Leased Water in the Huntington-Cleveland Irrigation Company,
dated May 10,2022 for the lease of 2,694 acre-feet of 2022 Class A and Class B allocated
water; and
WHEREAS, Huntington-Cleveland and leasing shareholders intend to lease to
PacifiCorp an additional 68.15 acre-feet of their 2022 Class A and Class B allocated water at
the lease rate of! per acre foot (?acifiCorp Lease Pool" or "Lease Pool'). Such leasing
shareholders hav@eed not to call for theirwater held in the PacifiCorp Lease Pool; and
WHEREAS, for PacifiCorp to use water made available fiom the Lease Pool, said
water must be stored by PacifiCorp in its Electric Lake Reservoir and/or by Huntington-
Cleveland in Huntington-Cleveland's Left Fork Reservoirs for release on PacifiCorp's
request from the date of execution of this Agredment until February 28,2023; and
WHEREAS, Huntington-Cleveland desires to facilitate this lease of water to
PacifiCorp fiom the date of execution of this Agreement until February 28,2023,
consistent with this Agreement; and
WHEREAS, as of the date of execution of this Agreement, Huntington-Cleveland
has allocated I acre foot ofwater for every 5.0 Class A Shares (Primarywater) inthe
2O22 inigation season; and
1
REDACTED
WHEREAS, as of the date of execution of this Agreement, Emery Water
Conservancy District has allocated I acre foot of water for every 1.43 Class B Shares
(Project water) inthe2022 irrigation season; and
WHEREAS, the Parties desire to enter into this Agreement for the leasing and
delivery of the leased water, pursuant to the terms and conditions set forth herein.
NOW THEREFORE, the Parties agree as follows:
The Parties acknowledge receiving zufficient consideration for the
commitments contained in this Agreement and waive any argument
that they might have in any judicial proceeding that no consideration
exists to support this Agreement or that the consideration received is
not sufficient.
2. The term of this Agreement runs from the date of execution through
February 28,2023,
3. Within 30 days of receipt of invoice from Huntington-Cleveland,
PacifiCorp shall pay Huntington-Cleveland a lump sum payment of
I for the 68.15 acre-feet of leased water. Huntington-Cleveland
shall distribute to leasing shareholders their portion of the payment.
PacifiCorp has no responsibility or liability for distribution of funds to
the leasing shareholders.
4. The Parties acknowledge that, at the date of execution of this
Agreement, PacifiCorp leases from Huntington-Cleveland a fixed
amount defined block of water of 68.15 acre feet, consisting of: 1)
Huntington-Cleveland's allocation of I acre foot of water for every 5.0
Shares of Class A stock; and 2) Emery Water Conseryancy District's
allocation of I acre foot of water for every 1.43 shares of Class B
stock. However, if either of these allocations are adjusted throughout
the irrigation season (either increasing or decreasing), then
PacifiCorp's volume of leased water shall not change.
5. The Parties agree to assign the 68.15 acre-feet of lease water in the
PacifiCorp Lease Pool into PacifiCorp's Electric Lake by storing
Huntington-Cleveland's natural flow entitlement that would otherwise be
released frorn Electric Lake following runoff season.
6. The Parties, in coordination with the Huntington River
Commissioner, will account for PacifiCorp's use ofthe Lease Pool
water throughout the term of this Agreement in order to determine the
balance of Lease Pool water to be delivered to PacifiCorp through
February 28,2023.
2
7. Throughout the term of this Agreement, PacifiCorp's use of water
sources for the Huntington Plant will be in the following priority:
(a) PacifiCorp's water under its Shares in Huntington-Cleveland
(Huntington Creek direct flow).
(b) Huntington-Cleveland water in the PacifiCorp Lease Pool. As
available pursuant to naturally available water in Huntington
Creek and the normal and regular operation of Huntington-
Cleveland's reservoirs to provide storage water to all
shareholders.
(c) Release of PacifiCorp's owr storage water in Electric Lake.
8. If PacifiCorp does not use all of the Lease Pool by February 28,2A23,
PacifiCorp's right to use said remaining Lease Pool water shall
terminate and any said remaining water shall be accounted for as
Huntington-Cleveland's storage water for delivery during the 2023
irrigation season. However, in no event shall PacifiCorp be entitled to
any refund of the payments made under this Agreement.
9, In the event that Huntington-Cleveland uses its best efforts to deliver
the Lease Pool water but is unable to do so due to circumstances
beyond its control, PacifiCorp waives any and all damages, claims,
losses, liabilities, costs and expenses against Huutington-Cleveland.
As used herein, the term "circumstances beyond its control" means the
lack of water in the Huntington Creek drainage, an order by, or under the
direction of, the State Engineer of Utah, natural disaster, such as weather,
an earthquake, fire, storm, flood, an act of God; a war, insurrection, or
labor dispute; an order, requisition or necessity of any governmental
authority; or a result of any cause beyond the control and not a result of
any negligence of Huntington-Cleveland. If Huntington-Cleveland
ceases delivery ofthe Lease Pool water pursuant to this paragraph, it
shall nonetheless have an obligation to use its best efforts to resume
delivery of said Lease Pool water as quickly as possible, and to allow
PacifiCorp to aid in such restoration of delivery. Notwithstanding the
foregoing, Huntington-Cleveland, by reason of this Agreement, shall not
incur additional liability beyond any liability it may have for non-
delivery of water to the Sharcholders leasing watcr in thc Lease Pool, nor
shall it be liable for incidental or consequential damages for nondelivery
of the Lease Pool water.
10. Any notice given under this Agreement shall be deemed sufficient if in
writing and delivered by hand or deposited in the United States mail,
postage prepaid, and addressed as follows, or to such other addressee as
either Party may, from time to time, designate in writing:
3
To Huntington-Cleveland :
Vickie Tucker
HCIC Secretary
P.O. Box 327
Iluntington, UT 84528
with a copy to:
J. Craig Smith
Smith Hartvigsen, PLLC
257 East 200 South, #500
Salt Lake City, UT 841 11
To PacifiCorp:
To PacifiCorp: Cody Allred
Water Resource Manager
P.O. Box 680
Huntington, UT 84528
with a copy to:
Buffi Morris
Water fughts Administrator
1 407 W,North Temple #1 I 0
Salt Lake City, UT 841l6
I l. This Agreement shall be construed in accordance with the laws of the State of Utah.
All legal actions between the Parties, arising under this Agreement, shall be
conducted exclusively in the Seventh District Court for the State of Utah located
in Emery County, Utah, unless they involve a case with exclusive federal
jurisdiction, in which case they shall be conducted exclusively in the Federal
District Court for the District of Utah. Each Party hereby waives any objection
based onforum nonconveniens or any objection to venue ofany such action, To
the fullest extent permitted by law, each of the Parties hereto waives any right
it may have to a trlal by jury in respect of litigation directly or indirectly
arislng out of, under or in connection with this Agreement. Each ParW
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.
12. This Agreement constitutes the entire agreement and understanding of the
Parties, and supersedes all offers, negotiations and other agreements.
There are no representations or understandings of any kind not set forth
herein. Any amendments to this Agreement must be in writing and
executed by the Parties.
13.If either Party to this Agreement is required to initiate or defend
litigation to secure performance of this Agreement, the prevailing
parry in such Iitigation, inadditionto anyother reliefthat maybe
granted, whether legal or equitable, shall be entitled to reasonable
attorney fees.
14. PacifiCorp, at its sole expense, shall obtain any necessary approvals
from the Utah Division of Water Rights and/or the Utah State
Engineer to use water as anticipated in this Agreement. Huntington-
Cleveland shall reasonably cooperate with PacifiCorp in obtaining
any such approvals.
15. PacifiCorp, agrees to and shall indemnifu, defend, and hold Huntington-
4
Cleveland and its directors, offrcers, agents, employees, and
representatives harmless from and agaiast all liability, [oss, darnage,
costs, or expenses (including reasonable attomey fees and court costs)
arising fiom or as a result of this Agreement or the use of water by
PacifiCorp under this Agreement. This indemnification shall not apply
to losses, darnages, claims, expenses and other liabilities to the extent
caused by the negligence of Huntington-Cleveland or its employees,
guests, invitees, contractors, or agents.
16. The Parties waive any right to claim consequential damages. Neither
Party, nor any shareholder, officer, or director ofa Party, shall be
liable for any oonsequential, incidental. or indirect, damages. Any
claim of damages shall be limited to the total amount paid by or
payable to a Party.
17. Time is of the essence in performing all duties and obligations in this
Agreement.
18. Neither this Agreement nor any right or obligation hereunder may be
assigned in whole or part without the express written and executed
consent of both Parties.
EXECUTED on the date wriuen above.
HUNTINGTON.CLEVELAND
B
PA
Staker, President
COMPA}TY
Attest:
I e
Loa
Vickie Ti,rcker, Secretary
By
Its:
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