Grant%20of%20Buried%20Water%20Pipeline%20and%20Communication%20Control%20Conduit%20Easement.pdf

Parent document: Regular Meeting 6_00 P.M.-05-09-2024.pdf

Text

GRANT OF BURIED WATER PIPELINE AND
COMMUNICATION/CONTROL CONDUIT EASEMENT

For good and valuable consideration, the Grantor, MOSES LAKE
SCHOOL DISTRICT NO. 161, whose address is 1620 S. Pioneer Way, Moses
Lake Washington 98837 (“Owner”), the owner of certain real property in Grant
County, Washington described in Exhibit “A” attached hereto and incorporated
herein by this reference, (hereinafter the “District Parcel”), does hereby convey
and quitclaim to Grantee, J. R. SIMPLOT COMPANY, a Nevada corporation
whose address is 1099 W. Front Street, Boise, Idaho 83702 (“Simplot’), a
nonexclusive perpetual easement (the “Perpetual Easement”) for buried pipelines
and communication/control conduits to be used for the transport of industrial
process water and fresh water, (the “Improvements”) as described herein and
such additional temporary easements (the “Temporary Easement’) as may be
necessary for the construction of the Improvements. This document is
hereinafter referred to as the “Grant of Easement”.

1. Nature of Easements. The Perpetual Easement and _ the
Temporary Easement shall be for the benefit of Simplot, its successors, and
assigns. The Perpetual Easement and the Temporary Easement shall burden the
District Parcel and shall run with the land.

2. Perpetual Easement. Owner grants to Simplot a nonexclusive
perpetual easement Six (6) feet in width, as more particularly described in Exhibit
“B” attached hereto and incorporated herein by this reference “Easement
Parcel”), along with the right of temporary ingress and egress over the District
Parcel as is reasonably necessary to exercise Simplot’s rights hereunder.

3. Temporary Construction Easement. During the period beginning
May 1, 2024 and ending October 31, 2024, or during any other mutually
acceptable period of time, (the “Construction Period”), Owner grants to Simplot
the temporary use of the District's immediately adjacent land for the purpose of
temporarily depositing excavated material, operating construction equipment and
staging construction materials used to install, repair, maintain, replace, and
remove the Improvements.

(a) Owner shall allow the initial construction for installing the
Improvements to begin during the period of May 1, 2024 through
October 31, 2024. During the Construction Period, construction
may begin no later than 14 days following the date of Simplot’s
written notice of intent to begin construction or earlier if conditions
permit.

(b) Simplot agrees to reimburse Owner a reasonable amount for
damage to any equipment or structures. This _ includes
reimbursement for irrigation equipment or structures that may be
lost or damaged as a result of the construction of the

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Improvements.

(c) The Temporary Construction Easement shall be in effect for 30
days commencing on the date construction begins, subject to
reasonable extensions allowed by Owner for delays caused by
force majeure events (unusual weather conditions, unavailability of
materials, labor shortage or strike).

4. Purpose of Easements. The Perpetual Easement is granted only
for the purpose of operation, maintenance, repair, replacement, removal, and
inspection of the Improvements. The water pipelines shall be used for subsurface
transport of industrial process water and fresh water across the District Parcel at
such times and in such quantities as are determined from time to time in
Simplot’s discretion. The number, diameter and materials for all pipeline
improvements shall be determined by Simplot in Simplot’s discretion, on the
condition that they comply with all applicable laws. The Temporary Easement is
granted for the purpose of constructing the Improvements and for the repair,
replacement, or removal of the improvements during the term hereof.

(a) The parties agree that the Owner is only granting a buried
pipeline and communication/control conduit easement which
includes the right of access to operate, maintain, repair, replace,
remove, and inspect the Improvements with regard to the water
pipelines and communication/control conduits.

(b) All pipelines and communication/control conduits must be
buried to a depth such that they have at least 36 inches of soil
covering them, or more as required by law.

(c) When Simplot has completed use of the temporary easement,
pursuant to the terms of this Agreement, Simplot will take
reasonable measures to restore the disturbed area to its pre-
construction condition.

5. Rights of Alignment. Owner reserves the right to realign the
Perpetual Easement and the Improvements, at Owner’s sole cost and expense.
The scheduling of any such realignment shall be subject to the good faith mutual
agreement of the parties, and shall be scheduled so as to avoid any undue
hardship to Owner or Simplot.

6. Nonexclusive Easement. The Temporary Easement and the
Perpetual Easement shall be nonexclusive, and Owner may build other
structures or improvements on the Perpetual Easement and may perform the
usual and customary farming practices on the easement ground; provided,
however, that such other structures or improvements shall not damage or
compromise the structural integrity or accessibility of the Improvements, or
interfere with the construction, operation or maintenance of the Improvements.

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7. Cost of Installation and Maintenance. Simplot shall bear all costs
of engineering, installation, repair, maintenance, replacement, and removal of the
Improvements, including future costs to repair or replace damage caused by
Simplot’s maintenance.

8. Termination. In the event the improvements installed by Simplot
within the Perpetual Easement are unused for a period of three (3) consecutive
years, or by mutual agreement in writing, Owner and Simplot may terminate the
Temporary Easement, the Perpetual Easement, or both. If terminated by mutual
written agreement as provided herein, a notice of termination of easement shall
be executed and recorded by Owner in the real property records of Grant
County. In the event of nonuse for a period of 3 consecutive years, Owner must
provide Simplot with sixty (60) days notice of Owner’s intent to terminate, at
which time Simplot can choose to resume using said improvements or provide
Owner with a quitclaim fully terminating the easement on the property. Once
terminated, Simplot shall sever the Improvements at the points where they enter
and leave the District Parcel and remove all of its Improvements from the
District's Parcel at Simplot’s sole cost and expense.

(a) Owner retains the right to require Simplot to remove the
Improvements.

(b) If Owner so elects to have Simplot remove the Improvements,
Owner will give written notice to Simplot of this requirement and
Simplot shall remove the Improvements within 180 days of said
notice at Simplot’s sole cost and expense.

(c) If Owner elects in writing not to have the Improvements
removed by Simplot, then said Improvements remaining on
Owner's parcel shall become the property of Owner.

(d) Upon termination of the Easement as provided herein, Simplot
shall have no further obligation to Owner hereunder, except as
provided in Paragraphs 10 (Indemnification), 16 (Governing Law),
and 17 (Attorneys’ Fees and Costs).

9. Default. If Simplot fails to fulfill any of its obligations under this
Agreement and Owner gives Simplot written notice specifying Simplot’s failure to
fulfill its obligations under this Agreement, and Simplot fails to correct such
breach within (thirty) 30 days after notice is given, Simplot shall be in default
under this Agreement. Provided, if the breach cannot be reasonably cured within
the (thirty) 30 day period and Simplot promptly commences and diligently
pursues a cure, then the thirty (30) day period shall automatically be extended for
such period of time as may be reasonably required to cure the breach with
diligence.

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10. Indemnification. Simplot shall forever defend, indemnify and hold
Owner harmless from any claim, loss, or liability arising out of or in any way
connected with Simplot’s possession or use of the Easement Parcel and
Temporary Easement, Simplot’s conduct with respect to the Easement Parcel
and Temporary Easement, or any condition of the Easement Parcel and
Temporary Easement. In the event of any litigation or proceeding brought against
Owner and arising out of or in any way connected with any of the above events
or claims, against which Simplot agrees to defend Owner, Simplot shall, upon
notice from Owner, vigorously resist and defend such actions or proceedings
through legal counsel reasonably satisfactory to Owner. Notwithstanding the
foregoing, Simplot does not agree to defend, indemnify, or hold harmless Owner
for any claim, suit, loss, damage, liability or expense to the extent arising from
the negligence or willful misconduct of the Owner, its agents, employees,
contractors or invitees.

11. Consideration. Owner has_ received and does_ hereby
acknowledge fair and due consideration given by Simplot and in return for the
grant of the Temporary Easement and the Perpetual Easement.

12. Binding Effect, Heirs, Assigns and Assignment. This Grant of
Easement, and the covenants and agreements contained herein shall inure to
the benefit of and be binding and obligatory on the heirs, executors,
administrators, successors and assigns of the respective parties. Simplot shall
have the right to assign this easement to its successors, with prior written
consent which shall not be unreasonably withheld.

13. Entire Agreement. This Grant of Easement shall constitute the
entire agreement between the parties regarding the Temporary Easement and
the Perpetual Easement and any prior understanding or representation of any
kind preceding the date of this agreement shall not be binding upon either party
except to the extent incorporated in this agreement.

14. Modification of Agreement. Any modification of this Grant of
Easement or additional obligation assumed by either party in connection with this
Grant of Easement shall be binding only if evidenced in a writing signed by each
party.

15. Notices. Any notice under this Grant of Easement shall be in writing
and shall be effective when actually delivered in person or three (3) days after
being deposited in the United States Mail, postage prepaid and addressed as
follows:

If sent to Owner: Moses Lake School District No. 161
Attn: Superintendent
1620 S. Pioneer Way
Moses Lake WA 98837

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If sent to Simplot: J. R. Simplot Company
Attn: Corporate Secretary
1099 W. Front Street
P.O. Box 27
Boise, ID 83707

With a copy to: J. R. Simplot Company
Moses Lake Plant
Attn: Plant Manager
14124 Wheeler Road NE
Moses Lake, WA 98837

16. Governing Law. This Grant of Easement was entered into and is
to be performed in the State of Washington and shall be interpreted pursuant to
the laws of the State of Washington. Venue for any litigation shall be in Grant
County, Washington.

17. Attorneys’ Fees and Costs. The prevailing party to any litigation
or other proceedings arising out of this Grant of Easement shall be entitled to
recover its reasonable costs and attorneys’ fees from the other party in addition
to any other relief available at law or in equity and on appeal.

IN WITNESS WHEREOF, the parties have hereto executed this
Grant of Easement this __ day of May, 2024.

Grantor: Grantee:
MOSES LAKE SCHOOL DISTRICT J. RR. SIMPLOT
COMPANY
No.161 a Nevada corporation
Bye By: James B. Alderman
(Print Name) Sr. Vice President & Secretary
Its:

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STATE OF WASHINGTON )
) ss.
County of GRANT )

On this __ day of May, 2024, before me, a Notary Public in and for the
State of Washington, personally appeared, known or identified to me to be the
person whose name is subscribed to the within instrument and acknowledged to
me that they executed the same.

IN WITNESS WHEREOF, | have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.

Name:

Notary Public for the State of WA
Residing at:

Commission expires:

STATE OF IDAHO }
}ss.
COUNTY OF ADA }
On this day of May, 2024, before me, the undersigned, personally

appeared James B. Alderman, to me known to be the Sr. Vice President and
Secretary of J.R. Simplot Company, the corporation that executed the within and
foregoing instrument, and acknowledged the said instrument to be the free and
voluntary act and deed of said corporation for the uses and purposes therein
mentioned, and on oath stated that said individual was authorized to execute
said instrument.

WITNESS my hand and official seal the day and year first above written.

Name:
Notary Public for the State of Idaho
Residing at:
Commission
expires:

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EXHIBIT “A”

District Parcel Description

PARCEL NO. 121196000

A PORTION OF THE SOUTHEAST QUARTER OF SECTION 16, TOWNSHIP 19 NORTH, RANGE 29
EAST, W.M., GRANT COUNTY WASHINGTON; DESCRIBED AS FOLLOWS:

ALL THAT PORTION OF LOTS 1 THROUGH 4, BLOCK 12, PLAT OF WHEELER AS RECORDED IN
VOLUME 1 OF PLATS AT PAGE 566, RECORDS OF GRANT COUNTY.

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Exhibit “B”

Easement Parcel

PARCEL NO. 121196000

A PORTION OF THE SOUTHEAST QUARTER OF SECTION 16, TOWNSHIP 19 NORTH, RANGE 29
EAST, W.M., GRANT COUNTY WASHINGTON; DESCRIBED AS FOLLOWS:

ALL THAT PORTION OF LOTS 1 THROUGH 4, BLOCK 12, PLAT OF WHEELER AS RECORDED IN
VOLUME 1 OF PLATS AT PAGE 56, RECORDS OF GRANT COUNTY, LYING SOUTHERLY OF A LINE
WHICH IS PARALLEL WITH AND 46.00 FEET NORTHERLY OF THE SOUTH LINE OF SAID SOUTHEAST
QUARTER, AND NORTHERLY OF A LINE WHICH IS PARALLEL WITH AND 40.00 FEET NORTHERLY
OF THE SOUTH LINE OF SAID SOUTHEAST QUARTER.

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