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HomeMy WebLinkAbout954520Whittaker \Rocky Mountain Power \WhittakerAccessEasement R.MP FINAL 7.8.10 Page 1 of 6 ACCESS ROAD EASEMENT AGREEMENT THIS AGREEMENT is made and entered into this day of July, 2010, between JIMMY LEE WHITTAKER and JOYCE ANN WHITTAKER whose address is P.O. Box 536, Kemmerer, WY 83101 -0536 "Whittaker and ROCKY MOUNTAIN POWER a d /b /a of PacifiCorp, an Oregon corporation authorized to do business in Wyoming, whose address is 1407 W. North Temple, Suite 110, Salt Lake City, Utah 84116 "Rocky Mountain Power Together Whittaker and Rocky Mountain Power are the "Parties." WHEREAS, Whittaker owns real property located in Lincoln County, Wyoming; and WHEREAS, on Whittaker's property is an existing private road approximately thirty (30') feet in width that is commonly referred to as the Wagon Wheel Road (the "Road that traverses the following described lands located in Lincoln County, Wyoming: Southeast Quarter of Section 30, Township 21 North, Range 114 West. The road is depicted on the map attached to this agreement as Exhibit "A" (Hereinafter "the Road and made a part hereof by this reference; and WHEREAS, Rocky Mountain Power is planning to design, construct, erect and install a switching /substation near to and providing service to the Roberson compressor station (the "Substation The Substation shall consist of an electric power transmission line, a distribution line to and from that substation, and communication lines to provide communication to and from the substation for the use of Rocky Mountain Power, and not for resale or transmission of communications by Rocky Mountain Power. These described items are facilities directly related to the substation (the "Facilities in areas near the existing private road; and WHEREAS, Rocky Mountain Power desires to use the existing Road to access the area where construction of the Substation and related Facilities specifically described herein (together defined as "the Project will be installed; and WHEREAS, to access the location where the Facilities will be built and installed, Rocky Mountain Power and its contractors and subcontractors have a desire to use the Road; and WHEREAS, Rocky Mountain Power desires to use the Road after the Project is constructed for the continuous operation and maintenance of the Facilities; and WHEREAS, Rocky Mountain Power desires to enter into a non exclusive Road Agreement (the "Agreement with Whittaker so Rocky Mountain Power may use the Road only for the purpose described and pursuant to the terms and conditions of this Agreement for access to the Facilities; and WHEREAS, Whittaker is willing to enter into a non- exclusive Agreement with Rocky Mountain Power upon the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of Ten Dollars ($10.00 and more) in hand paid and of the promises and mutual covenants set forth herein below, Whittaker does hereby grant, sell and convey to Rocky Mountain Power, its successors and assigns a perpetual non exclusive right of way and easement for the use of the Road, subject to the extinguishment clause and other promises and mutual covenants set forth herein below: 1. It is understood and agreed that this Agreement does not and shall not extend generally for the use of this Road by the public. This Agreement grants to Rocky Mountain Power, its employees, contractors, agents, and persons, as well as firms and corporations who are actively engaged in doing or performing work for Rocky Mountain Power on the Project, the right to utilize the Road for purposes of this specific construction, operation and maintenance activities. The rights granted shall include using the road for mobilization of all equipment necessary for the construction, erection and installation of the Substation and the specifically described related facilities at or near the Roberson compressor site. RECEIVED 7/22/2010 at 11:09 AM RECEIVING 954520 BOOK: 751 PAGE: 14 JEANNE WAGNER LINCOLN COUNTY CLEF 'MERER, WY '0. 4 2, 015 This Agreement also grants to Rocky Mountain Power, its employees, contractors, agents, and all persons, as well as firms and corporations who are doing work for Rocky Mountain Power on this Project the right to utilize the Road to access the locations where the power transmission lines go to and from that Substation that is being constructed. That access shall include the right to use the road to mobilize the equipment necessary to excavate, construct, install, and activate the Substation and power transmission lines to and from the Substation, to transport the poles, transformers, power line, switches and equipment that will be used in the construction of the Substation and power transmission line to and from the transmission line and Substation. The right described herein above does not grant or give to Rocky Mountain Power, its employees, contractors, agents, and persons any right to use the Road at any time unless they are acting within the scope of their employment or agency relationship. 2. The permitted use as described above does not include use of the Road to install, access or service any "man camp," employee housing, pole yards, wire storage yard, transformer storage, staging areas, installation of telephone lines, optic fibers, or any other item other than that specifically described as allowed herein above. Rocky Mountain Power, its employees, contractors, agents and persons, as well as firms corporations and their employees, contractors, agents and person who are doing work for Rocky Mountain Power shall not have the right to use this Road for personal use, recreation, or access. Should Rocky Mountain Power determine the need to expand the substation in a manner that requires the use of large vehicles and construction equipment, Rocky Mountain Power agrees to pay to Whittaker a $400 per month construction use fee during the period of construction. The amount paid shall be adjusted annually based on the Consumer Price Index (CPI). Paragraphs 8 through 10 below shall apply to such expansion. 3. While using this Road Rocky Mountain Power, its employees, contractors, agents and persons, as well as firms and corporations who are doing work for Rocky Mountain Power shall not interfere or impede with Whittaker in the operations of the ranch. Whittaker retains the right to use the Road for transportation or mobilization of ranching equipment including but not limited to tractors, wagons, balers, swathers, and livestock trailers. Whittaker specifically retains the right to utilize the Road for herding or gathering livestock without notice to Rocky Mountain Power. By entering into this Agreement, Rocky Mountain Power specifically agrees to advise all its employees, contractors, agents and persons as well as anyone doing work for Rocky Mountain Power to stop any vehicle being operated if Whittaker or Whittaker's agents are herding any livestock on the Road and to not interfere with any herding or gathering operation. 4. Rocky Mountain Power and all its agents, employees and contractors shall not operate a vehicle on said Road at any speeds in excess of twenty (20) miles per hour. 5. Whittaker has notified Rocky Mountain Power that it has entered into other non- exclusive agreements for others to use the Road during the term of this Agreement. Whittaker and their successors and assigns retain the right to enter into additional agreements to allow others to use the Road. Rocky Mountain Power shall be responsible for coordinating its use and safety while using the Road with all other users. 6. Rocky Mountain Power agrees to cooperate with Whittaker and all other permitted users of the Road should Whittaker or any other permitted user wish to implement a gate, security, or entry system to control use of and access to and across the Road. Pending installation and implementation of a security gate, Rocky Mountain Power agrees to have its employees, contractors, agents, and persons, firms and corporations who are utilizing said Road in association with the Project, clearly display some identifying mark on their vehicle such as a flag or label of a specific color and /or design that can be easily recognized and distinguished from all others who use the Road from a reasonable distance. Rocky Mountain Power agrees to advise Whittaker prior to use of the Road what that unique identifying flag or label is for Whittaker\Rocky Mountain Power \WhittakerAccessEasement RMP FINAL 7.8.10 Page 2 of 6 identification purposes. 7. Rocky Mountain Power is aware that Whittaker alone or Whittaker in conjunction with other road users may install a security gate on the Road that will limit use of the Road to only those who are authorized or invited. Upon installation of the security gate by Whittaker, it is anticipated that anyone, including but not limited to Rocky Mountain Power, who has authority to use the road, will be required to enter a code or use an encoded card to proceed either direction on the Road. It is understood and expected that the access code(s) and /or cards required will be updated and change from time to time. Whittaker may control those code(s) and /or cards. It is also understood and expected that Whittaker will be entitled to enforce the terms and conditions of this easement by being able to receive a list from Rocky Mountain Power of who is authorized to use said Road or who Rocky Mountain Power has given access code(s) and /or cards to. To facilitate this clause of the Agreement, Rocky Mountain Power shall provide to Whittaker a person who shall act as the liaison between Rocky Mountain Power and Whittaker and who Whittaker shall contact in advance to notify of the activation of the security gate and provide an access code or codes and /or cards for use by Rocky Mountain Power's employees, agents and contractors. The following person is designated by Rocky Mountain Power to act as that liaison: Bret Doak (Operations) and that person may be contacted at (307) 352 -5401 or (307) 371 -1916 and Whittaker may be contacted at (307) 877 -4722. The contact person may be changed upon notice given to the other Party in writing at the address listed below for notice. Rocky Mountain Power shall be responsible for properly providing the code(s) and /or cards to only people who are duly authorized to use the Road pursuant to this Agreement in the completion of this Project. Providing code(s) and /or cards to unauthorized individuals or failing to retrieve code(s) and /or cards from individuals whose authority has been revoked and to notify Whittaker of such revocation shall be deemed a material breach in violation of this Agreement and may result in the revocation of the Easement by Whittaker upon providing notice and proof of such a violation. 8. Rocky Mountain Power shall be solely liable and responsible for maintaining and repairing the Road and all cattle guards during the construction of the Project. Rocky Mountain Power shall also be solely liable and responsible for assuring all cattle guards are clean so cattle and livestock cannot exit any fenced area by walking across a mudded, frozen, or filled cattle guard. 9. During construction of the Project, Rocky Mountain Power shall be solely responsible for all dust control, snow removal, plowing and maintenance which may include but is not limited to running a road grader over the road to smooth it and depositing and appropriately distributing or spreading road base or gravel on the Road. Such maintenance shall occur when the Road or any part thereof has wash boards foiin on it, the Road becomes slick, muddy, rutted, or there is an accumulation of mud holes. 10. Rocky Mountain Power shall be responsible for fixing or assuring the road has been repaired, restored or brought to a reasonable and safe level within thirty (30) days after construction is completed. Since it is subjective to determine what is required to restore or bring the Road to a reasonable and safe level after construction is completed, Rocky Mountain Power shall complete or be responsible for hiring and paying for a contractor(s) to perform the following: a. If any cattle guard, concrete base, or area surrounding a cattle guard is damaged as a result of or during construction, they will be repaired or replaced by Rocky Mountain Power. Rocky Mountain Power shall raise each and clean any dirt, mud and/or accumulation of debris from any existing cattle guards currently located in the Road as a result of its construction activities; and b. After construction Rocky Mountain Power shall restore the road to a condition reasonably similar to the condition it was in before construction. The repair shall include, if necessary, road base in those areas (if any), as required. The road will Whittaker \Rocky Mountain Power \WhittakerAccessEasement RMP FINAL 7.8.10 Page 3 of 6 6 be graded so that the road base is appropriately distributed, and compact that road base so it will remain in place and so the road is smooth. If necessary, any cattle guards shall be raised or replaced if damaged so that vehicles are able to smoothly cross cattle guards and so the cattle guards will be effective in keeping livestock in an enclosed area. 11. All rights granted in the Agreement are subject to all existing agreements, rights -of -way, easements, leases, licenses or other agreements previously granted by Whittaker and are further subject to the continuing right of Whittaker to extend or renew any or all of said rights -of -way, easements, leases, licenses or other agreements and enter into additional Agreements, rights -of -way, easements, leases, license or other agreements for use of the Road. 12. Rocky Mountain Power and all its agents, employees and contractors shall not operate a vehicle on said Road nor be present on said Road at any time while possessing any firearm, alcoholic beverage, or controlled substances unless that controlled substance is possessed pursuant to a valid prescription nor shall Rocky Mountain Power or its agents, employees or contractors use said Road while under the influence of any alcoholic beverage or controlled substance unless pursuant to a valid prescription. Violation of this condition by an individual otherwise authorized to use this Road pursuant to this Agreement shall result in Rocky Mountain Power prohibiting that person from the Substation and Facilities that are accessed by this Road. Failure of Rocky Mountain Power to take such action shall be deemed a material breach in violation of this Agreement. 13. Rocky Mountain Power shall be responsible for the negligence of all Rocky Mountain Power's employees, agents, contractors, and all other persons relative to the use of the Road in association with this easement. 14. Rocky Mountain Power acknowledges and agrees that it is responsible for damages, if any, to the Road, livestock, property or person of Whittaker occasioned by Rocky Mountain Power's use of the Road. 15. Rocky Mountain Power shall work to prevent the spread of noxious weeds on the land adjacent to the roadway. Any vehicles or equipment that has been operated recently in areas where leafy spurge or other noxious weeds exist shall be power washed prior to entry upon the Road. Rocky Mountain Power shall work diligently to eliminate any noxious weeds, including leafy spurge that can reasonably be inferred to have been introduced to the premises by Rocky Mountain Power's operations and shall cooperate with the other permitted road users to eliminate any noxious weeds growing adjacent to the roadway. 16. Rocky Mountain Power agrees to hold Whittaker, including their partners, officers, and employees free and harmless from any and all liability caused by Rocky Mountain Power's use of the Road and bridge or the use of the Road and bridge by its employees, contractors, agents, persons, and firms and corporations who are utilizing the Road and bridge on behalf of Rocky Mountain Power in association with this easement. Rocky Mountain Power further agrees to indemnify and hold harmless Whittaker as to all actions, claims, or suits including but not limited to attorney fees and costs arising from Rocky Mountain Power's use of the Road or the use of the Road by Rocky Mountain Power's employees, contractors, agents, persons, and firms and corporations who are utilizing the Road and bridge on behalf of Rocky Mountain Power in association with this easement. Whittaker retains the right to chose their attorney in such action and manage any and all litigation associated therewith. 17. Rocky Mountain Power may not assign or otherwise transfer Rocky Mountain Power's rights and interests herein or hereunder without prior written consent of Whittaker or their heirs, which consent shall not be unreasonably withheld. Any assignment or transfer prior to obtaining the written consent of Whittaker shall void this easement and Whittaker\Rocky Mountain Power \WhittakerAccessEasement AMP FINAL 7.8.10 Page 4 of 6 the right of Rocky Mountain Power or any assignee to use the Road and Whittaker shall be entitled to retain all monies paid by Rocky Mountain Power and utilize all remedies available to Whittaker pursuant to this Agreement. 18. Construction will be deemed to have ended for the purposes of this easement at the completion of the initial Substation and Facilities described above on or before the 31st day of December, 2011. Construction for any expansion of the Substation as provided for herein will be deemed to have begun when actual construction work is undertaken for the expansion and will be deemed to have ended at the time the expanded Substation is put in service. 19. All rights and privileges granted herein shall terminate if Rocky Mountain Power fails to maintain and operate said Substation, power and transmission lines and Facilities by transporting power therein for a period of more than twelve (12) consecutive months. Rocky Mountain Power may at any time permanently abandon said right -of -way upon receipt and acceptance of any necessary approvals. Upon such abandonment, Rocky Mountain Power shall execute and record a reconveyance and release hereof, whereupon this right -of -way and easement and all rights and privileges herein mutually granted shall be fully canceled and terminated except those set forth in paragraphs 13, 14, and 16 above. On the termination of the rights granted herein, whether as set forth under this section or otherwise, Rocky Mountain Power shall execute and deliver to Whittaker, within forty five (45) days after service of a written demand therefor, a good and sufficient quitclaim deed to all rights hereby granted. Should Rocky Mountain Power fail or refuse to deliver such deed to Whittaker, a written notice by Whittaker reciting the failure or refusal of Rocky Mountain Power to execute and deliver such deed, and terminating this grant, shall, after thirty (30) days from the date of recording of such notice, be conclusive evidence against Rocky Mountain Power and all persons claiming under Rocky Mountain Power of the termination of this grant. 20. Should either party be required to retain an attorney to enforce any provision of this Agreement, the prevailing party, whether litigation is initiated or not, shall be entitled to receive attorney fees from the other party. 21. This Agreement embodies the entire understanding of the parties and there are no further or other agreements or understandings, written or oral, in effect between the parties, relating to the subject matter hereof. This instrument may be amended or modified only by a written agreement signed by both parties. 22. Notice as required in this Agreement shall be deemed given three (3) days after any written notice is deposited in the United States Mail, postage prepaid, certified mail, return receipt requested to the party at the address below: a. If to Whittaker: Jimmy Lee Whittaker and Joyce Ann Whittaker, P.O. Box 536, Kemmerer, WY 83101. b. If to Rocky Mountain Power: Rocky Mountain Power, 1407 W. North Temple, Suite 110, Salt Lake City, Utah 84116. [The remainder of this page is intentionally blank.] Whittaker\Rocky Mountain Power \WhittakerAccessEasement RMP FINAL 7.8.10 Page 5 of 6 Executed this a day of July, 2010. Q\J c.e 911-0-1 ,til '),ke Y LEE WHITTAKER, JOY ANN WHITTAKER, Whittaker /Landowner Whittaker /Landowner P.O. Box 536 P.O. Box 536 Kemmerer, WY 83101 Kemmerer, WY 83101 STATE OF WYOMING COUNTY OF LINCOLN On this q 3h day of July, 2010, before me personally appeared Jimmy Lee Whittaker and Joyce Ann Whittaker, known to be the person described in and who executed the foregoing instnunent, and acknowledged that they executed the same as their own flee act and deed. DEBRA DEB A A. r ANS Ny NOTARY MUG STATE OF Yif1v:.��l�ti! CONY OF LIPZOLN MY f,O'4 .SSION EXPIRES Executed this /9 day of July, 2010. Agent for Rocky Mountain Power, a d/b /a Rocky Mountain Power, an Oregon corporation, who represents that he /she has full authority to bind PacifiCorp to this Agreement in all respects. STATE OF '1C14t4 COUNTY OF On this 1 day of July, 2010, before me personally appeared Sti-§41 -A the 1444- ifY Ot 1 24 12 for ROCKY MOUNTAIN POWER, known to be the person described in and who executed the foregoing instrument, and acknowledged that he /she had the requisite authority to execute such agreement. And that he /she executed the same as the free act and deed of Grantee, ROCKY MOUNTAIN POWER. WITNESS my hand and official seal. fimol wiwo sew ma um wow mg Notary tc KIM M. GARR1CK CommtulOti $7$122 I My CannalMen Eapkee March Z 6, 201$ State CA Utah J al* .w .r awls 6 ti ss ss. WITNESS my hand and official seal. Whittaker \Rocky Mountain Power \WhittakerAccesshasement RMP FINAL 7.8.10 S'a,Zn firmsvfro NOTARY PUBLIC My Commission Expires: 3lt1 <t Page 6 of 6 b NOTARY PUBL My Commission Expires: Exh i bit A WAGON WHEEL ROAD 0