2017-01-30_GENERAL DOCUMENTS - M1977493

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Mr. Eric Scott, DRMS January 26, 2017 RYLEY CARLOCK Page 8 of 9 & A P P L E W H I T E Attorneys A mere reference in a contract to another instrument, without some language of incorporation, is legally insufficient to incorporate the other instrument as a part of the contract. "Admittedly, parties may incorporate the terms of another document by reference into their contract. Yet, the terms of another document cannot be incorporated by reference without specific language. Rather, the reference must be clear and unequivocal, and alert the nol-drafting party that terms from another document are being incorporated." Housing Authority of County of Salt Lake v. Snyder, 44 P.3d 724, 729 (Utah 2002). "It is not enough for the contract to merely mention the instrument; the referring language in the contract must demonstrate the parties intended to incorporate all or part of the referenced instrument." Pennaco Energy, Inc. v. KD Co. LLC, 363 P.3d 18, 38-39 (Wy. 2015) (citations omitted). "[T]he incorporating contract must use language that is express and clear, so as to leave no ambiguity about the identity of the document being referenced, nor any reasonable doubt about the fact that the referenced document is being incorporated into the contract." Northrop Grumman Information Technology, Inc. v. U.S., 535 F.3d 1339, 1344 (Fed. Cir. 2008). "[T]he incorporating document must not only refer to the incorporated document, it must bring the terms of the incorporated document into itself as if fully set out." Sucesion J. Serralles, Inc. v. U.S., 46 Fed.Cl. 773, 785 (U.S. Ct. Claims 2000). In the Settlement Agreement here, the parties' acknowledgement that the Purchase Agreement remains "in full force and effect" was a mutual recognition of a true fact: the Purchase Agreement had not been terminated and it remained enforceable according to its terms. However, it is an analytically distinct and far more consequential matter to suggest that the Purchase Agreement was also incorporated into the Settlement Agreement, such that a breach of the Purchase Agreement would also be a breach of the Settlement Agreement. This additional legal consequence would have required some additional unambiguous language of incorporation, which is completely absent here. As a matter of contract law, the Settlement Agreement did not incorporate the Purchase Agreement. Finally, it is simply incomprehensible that the MLRB intended for its adoption of the Stipulations to transform the MLRB into a forum for civil enforcement of a private Settlement Agreement and a decade-old private Purchase Agreement that it had not adopted or even mentioned in the AM-06 Order. The MLRB lacks jurisdiction to engage in the civil enforcement of contracts; we should not presume that it silently intended to undertake the responsibilities of a civil court. For the record, Climax is in full compliance with the Settlement Agreement and with the Purchase Agreement. Climax disagrees with EPRC's interpretation of the Purchase Agreement. EPRC is attempting to stretch the provisions of the Purchase Agreement to absurd lengths —to prohibit the introduction of even a drop of"contaminated" water into the Reservoir— which is incompatible with the principles of contract interpretation and the way EPRC itself has behaved under the Purchase Agreement for almost 20 years. In the interest of efficiency, we will not burden you with the many contract interpretation issues involved. Suffice it to say that this is the stuff that week-long civil trials are made of.