20120510Notice of Affiliate Transaction.pdf

Mark C. Moench
Senior rice President and General Counsel PAr I F I Co R P
A MIDAMERICAN ENERGY HOLDINGS COMPANY 801-220-4459 Office
801-220-4058 Fax
mark.moench(pactficorp.com
May 10, 2012
VIA OVERNIGHTDELIVERY -< rn
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702-5983 o)C c
Attention: Jean D. Jewell
Cr)
Commission Secretary
Re: PacifiCorp Notice of Affiliate Transaction
Case N. PAC-E-05-8
Dear Ms. Jewell:
This letter will serve as notice pursuant to Commitment I 17(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 ("MEHC"), of an affiliate
interest transaction. Filed concurrently as Attachment A is the License for Electric Supply Line
Across or Along Railway Property (License) between PacifiCorp, and BNSF Railway Company
(BNSF), Tracking No. 12-44648.
PacifiCorp is a wholly-owned indirect subsidiary of MidAmerican Energy Holdings
Company (MEHC). MEHC is a subsidiary of Berkshire Hathaway, Inc. BNSF is also a
subsidiary bf Berkshire Hathaway, Inc. Therefore, Berkshire Hathaway, Inc.'s ownership interest
in MEHC and BNSF may create an affiliated interest in some PacifiCorp jurisdictions.
The Oregon Department of Corrections is constructing a prison near a portion of the
Company's Harrisburg - Lancaster transmission line in Lane County, Oregon. The construction
of the prison has required an expansion of a road near the transmission line. The expansion of the
road will require the transmission line to be relocated. BNSF owns property in the area for its
railroad tracks. Relocation of the Company's transmission line will require a new license with
BNSF to allow for the use of BNSF property for housing the transmission facilities.
Approximately 107 feet of the transmission line will cross BNSF's property.
BNSF will charge $3,000 for the License, $600 for the application fee, and $400 for
insurance fees. Because the relocation of the transmission line is being caused by the Oregon
Department of Correction's construction project, the Oregon Department of Corrections will pay
the fees from BNSF. The Company will not pay any fees to BNSF for the License.
Idaho Public Utilities Commission
May 10, 2012
Page
Obtaining the License is in the public interest because it allows the Company to install
and maintain facilities necessary to provide electric service and to meet its obligation to provide
safe and reliable electric service. Not having the License would mean that PacifiCorp would not
be able to meet its obligation to provide electric service. As the property owner, BNSF is the
only entity that can provide this License to the Company.
Please do not hesitate to contact me if you have any questions.
Sincerely,
Mark C. Moench
Senior Vice President and General Counsel
PacifiCorp
Enclosures
Jones Lang LaSalle Americas, Inc.
3017 Lou Menk Drive, Suite 100
Fort Worth, Texas 76131-2800
tel [phone], fax [phone]
(fl\ Jows LANG
WJ1/ LASALLE.
March 30, 2012
12-44648
Mr. Richard Birch
PacifiCorp
825 NE Multnomah Street Suite 1700
Portland, Oregon 97232
Dear Mr.- Birch:
Enclosed please find duplicate counterparts of the requested contract for execution by an official
authorized to execute contract agreements on behalf of your company. Please execute and return both
copies with original signature for completion on part of BNSF Railway Company ('BNSF) to this office,
along with the following requirements:
• A check in the amount of $3000.00 payable to BNSF Railway Company which covers the
contract fee(s). -
You should have been or will be contacted by BNSF's Risk Management Department. If you have
not, and you have any questions regarding any of the insurance requirements, please contact
Shawn Blair, via email, at [e-mail] . If you have. not done so, please email the
following insurance documents to BNSFcertfocus.com:
1.A Certificate of Insurance as required in the agreement
2.A separate policy for Railroad Protective Liability Insurance as required in the agreement
(ORIGINAL POLICY MUST BE PROVIDED). BNSF Railway Company will be the only
insured party; OR;
In lieu of providing a separate policy for Railroad Protective Liability Insurance, you may
participate in the BNSF's Railroad Protective Policy by checking the appropriate box in the
contract and including an additional $400.00 with your check.
PLEASE ADVISE IF THIS PROJECT IS ARRA FUNDED.
Acceptance and deposit of any check by BNSF does not constitute an agreement between BNSF and
Licensee for the requested license. BNSF shalt not be obligated to hold the check in a separate fund, but
may commingle the funds with other funds of BNSF, and in no event shall BNSF be responsible for
interest on said funds.
The enclosed permit is not a binding agreement and shall become binding only when, and if, it is
executed by you and fully approved and executed by BNSF Railway Company. Upon completion on
behalf of BNSF, one fully executed counterpart will be returned for your records.
The specificationslplans you provided may differ from BNSF's minimum specification
requirements. Therefore, prior to your installation, please review the Exhibit A to determine the
specifications necessary for your installation.
Please be informed that if contracts, fees, and insurance are not returned within sixty (60) days, an
additional processing fee of $600.00 will be accessed. -
Sincerely,
Tanita Thomas
Contract Specialist
Enclosures
Law Department Approved Tracking #1244648
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, Irrespective of Voltage, Overhead or Underground)
THIS LICENSE ("License"), made as of the day of , 2012 ("Effective Date")
by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor"), and
PACIFICORP, an Oregon corporation ("Licensee").
NOW THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the following:
GENERAL
Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests,
and estates of third parties including, without limitation, any leases, use rights,
easements, liens or other encumbrances, and upon the terms and conditions set forth
below, to construct, maintain, and use in strict accordance with the drawings and
specifications approved by Licensor as part of Licensee's application process ("the
Drawings and Specifications") an electric supply line containing a maximum of Three (3)
conductors, together with its supporting or containing structures ("Electric Supply Line")
across or along the premises of Licensor at or near the station of Junction City, County
of Lane, State of OR, Line Segment 0442, Mile Post 132.03, shown by bold line upon
the Drawing No. 1-54047 dated February 24, 2012, marked "Exhibit A", attached hereto
and made a part hereof ("Premises").
2.Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
Licensees, easement beneficiaries or lien holders, if any, or interfere with the use of
such improvements.
3.Licensee shall use the Premises solely for construction, maintenance, and use of an
Electric Supply Line in accordance with the Drawings and Specifications. Licensee shall
not use the Premises for any other purpose. Licensee shall not use or store hazardous
substances, as defined by the Comprehensive Environmental Response, Compensation,
and Liability Act, as amended ("CERCIA") or petroleum or oil as defined by applicable
Environmental Laws on the Premises.
4.In case of the eviction of Licensee by anyone owning or claiming title to or any interest in
the Premises, Licensor shall not be liable to refund Licensee any compensation paid
hereunder or for any damage Licensee sustains in connection therewith.
5.Any contractors or subcontractors performing work on the Electric Supply Line or
entering the Premises on behalf of Licensee, shall be deemed servants and agents of
Licensee for purposes of this License.
TERM
6.This License shall commence on the Effective Date and shall continue for a period of
twenty-five (25) years, subject to prior termination as hereinafter described.
Form 421; Rev. 04126(05
1
Law Department Approved
Tracking #12-44648
COMPENSATION

7. (a) Licensee shall pay Licensor, prior to the Effective Date, the sum of Three
Thousand and No/100 Dollars ($3000) as compensation for the use of the
Premises.
(b)Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of bills
therefor) for all costs and expenses incurred by Licensor in connection with
Licensee's use of the Premises or the presence, construction, maintenance, and
use of the Electric Supply Line, including but not limited to the furnishing of
Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger
services provided by the Railway, when deemed necessary by the Railway's
representative, will be borne by the Licensee The estimated cost for one (1)
flagger is $800.00 for an eight (8) hour basic day with time and one-half or
double time for overtime, rest days and holidays The estimated cost for each
flagger includes vacation allowance, paid holidays, Railway and unemployment
insurance, public liability and property damage insurance health and welfare
benefits, transportation, meals, lodging and supervision. Negotiations for
Railway labor or collective bargaining agreements and rate changes authorized
by appropriate Federal authorities may increase actual or estimated flagging
rates. The flagging rate in effect at the time of performance by the Contractor
hereunder will be used to calculate the actual costs of flagging pursuant to this
paragraph.
(c)All invoices are due thirty (30) days after the date of invoice. In the event that
Licensee shall fail to pay any monies due to Licensor within thirty (30) days after
the invoice date, then Licensee shall pay interest on such unpaid sum from thirty
(30) days after its invoice date to the date of payment by Licensee at an annual
rate equal to (i) the greater of (a) for the period January 1 through June 30, the
prime rate last published in The Wall Street Journal in the preceding December
plus two and one-half percent (2 1/2%), and for the period July 1 through
December 31, the prime rate last published in The Wall Street Journal in the
preceding June plus two and one-half percent (2 1/2%), or (b) twelve percent
(12%), or (ii) the maximum rate permitted by law, whichever is less.
COMPLIANCE WITH LAWS

8. (a) Licensee shall observe and comply with any and all Laws, statutes, regulations,
ordinances, orders, covenants, restrictions, or decisions of any court of
competent jurisdiction ("Legal Requirements") relating to the construction,
maintenance and use of the Electric Supply Line and the use of the Premises.
(b) Prior to entering the Premises, Licensee shall and shall cause its contractor to
comply with all Licensor's applicable safety rules and regulations. Prior to
commencing any work on the Premises, Licensee shall complete and shall
require its contractor to complete the safety-training program at the following
Internet Website "hftp://www.contractoroiientation.com ". This training must be
completed no more than one year in advance of Licensee's entry on the
Premises.
Form 421; Rev. 04/26/05
Law Department Approved Tracking #1244648
DEFINITION OF COST AND EXPENSE
9 For the purpose of this License "cost or "costs" "expense" or 'expenses" includes but is
not limited to, actual labor and material costs including all assignable additives, and
material and supply costs at current value where used.
RIGHT OF LICENSOR TO USE
• 10. Licensor excepts and reserves the right, to be exercised by Licensor and any other
parties who may obtain written permission or authority from Licensor:
(a)to maintain, renew, use, operate, change, modify and relocate any existing pipe,
power, communication lines and appurtenances and other facilities or structures
of like character upon over, under or across the Premises
(b)to construct, maintain, renew, use, operate, change modify and relocate any
tracks or additional facilities or structures upon over, under or across the
Premises; or
(C) to use the Premises in any manner as the Licensor in its sole discretion deems
appropriate, provided Licensor uses all commercially reasonable efforts to avoid
material interference with the use of the Premises by Licensee for the purpose
specified in Section 3 above.
LICENSEE'S OPERATIONS
11.(a)

Licensee shall notify Licensor's Roadmaster at 650 Hawthorne Ave SE Suite
220 Salem, OR 97301, telephone [phone], at least five (5) business days
prior to construction of the Electric Supply Line and prior to entering the Premises
for any subsequent maintenance thereon.
(b) In performing the work described in Section 3 Licensee shall use only public
roadways to cross from one side of Licensor's tracks to the other.
12.(a)

Licensee shall, at its sole cost and expense, construct and at all times maintain
the Electric Supply Line in accordance with the National Electric Code.
(b) If the operation or maintenance of said Electric Supply Line shall at any time
cause interference, including but not limited to physical interference from
electromagnetic induction, electrostatic induction, or from stray or other currents,
with the facilities of the Licensor or of any lessee or Licensee of the Licensor, or
in any manner interfere with the operation, maintenance, or use by the Licensor
of its right-of-way, tracks, structures, pole lines, signal and communication lines,
radio, or other equipment, devices, other property or appurtenances thereto,
Licensee agrees immediately to make such changes in its Electric Supply Line
and furnish such protective devices and/or replacement equipment to Licensor
and its lessees or Licensees as shall be necessary, in the judgement of the
Licensor's representative, to eliminate such interference. The cost of such
protective devices and their installations shall be borne solely by Licensee. If any
of the interference covered by this paragraph shall be, in the judgement of the
Licensor, or such importance to the safety of the Licensor's operations as to
Form 421; Rev. 04126105
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Law Department Approved Tracking #12-44648
require immediate corrective action, Licensee, upon notice from the Licensor,
shalt either, at the Licensors election, cease using said Electric Supply Line for
any purpose whatsoever and remove same, or reduce the voltage or load on said
Electric Supply Line, or take such other interim protective measures as the
Licensor may deem advisable, until the protective devices and/or replacement
equipment required by this paragraph have been installed, put in operation,
tested, and found to be satisfactory to correct the interference.
13. (a)
(b)
Under no conditions shall Licensee be permitted to conduct any tests,
investigations or any other activity using mechanized equipment and/or
machinery, or place or store any mechanized equipment, tools or other materials,
within twenty-five (25) feet of the centerline of any railroad track on the Premises
unless Licensee has obtained prior written approval from Licensor. Licensee
shall, at its sole cost and expense, perform all activities on and about the
Premises in such a manner as not at any time to be a source of danger to or
interference with the existence or use of present or future tracks, roadbed or
property of Licenser, or the safe operation and activities of Licensor. If ordered
to cease using the Premises at any time by Licensor's personnel due to any
hazardous condition, Licensee shall immediately do so. Notwithstanding the
foregoing right of Licensor, the parties agree that Licensor has no duty or
obligation to monitor Licensee's use of the Premises to determine the safe nature
thereof, it being solely Licensee's responsibility to ensure that Licensee's use of
the Premises is safe. Neither the exercise nor the failure by Licensor to exercise
any rights granted in this Section will alter the liability allocation provided by this
License.
Licensee shall, at its sole cost and expense, and subject to the supervision of
Licensor's Roadmaster, locate, construct and maintain the Electric Supply Line in
such a manner and of such material that it will not at any time be a source of
danger to or interference with the existence or use of present or future tracks,
roadbed or property of Licensor, or the safe operation and activities of its
railroad. Further, the Electric Supply Line shall be constructed, installed and
maintained in conformity with the plans and specifications shown on the print
attached hereto as Exhibit A and made a part hereof (which, if present, are to be
deemed part of the Drawings and Specifications). Licensor may direct one of its
field engineers to observe or inspect the construction and/or maintenance of the
Electric Supply Line at any time for compliance with the Drawings and
Specifications. If ordered at any time to halt construction or maintenance of the
Electric Supply Line by Licensor's personnel due to non-compliance with the
same or any other hazardous condition, Licensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor
has no duty or obligation to observe or inspect, or to halt work on, the Electric
Supply Line, it being solely Licensee's responsibility to ensure that the Electric
Supply Line is constructed in strict accordance with the Drawings and
Specifications and in a safe and workmanlike manner in compliance with all
terms hereof. Neither the exercise nor the failure by Licensor to exercise any
right granted by this Section will alter in any way the liability allocation provided
by this License. If at any time Licensee shall, in the sole judgment of Licensor,
fail to properly perform its obligations under this Section, Licensor may, at its
option and at Licensee's sole expense, arrange for the performance of such work
as it deems necessary for the safety of its operations and activities. Licensee
Form 421; Rev. 04126105
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Law Department Approved Tracking #12-44648
shall promptly reimburse Licensor for all costs and expenses of such work, upon
receipt of an invoice for the same. Licensors failure to perform any obligations of
Licensee shall not alter the liability allocation hereunder.
14. Licensee shall, at its sole cost and expense, remove all combustible material from
around wooden poles and will at all times keep the space around such poles free of such
material, and if removal of such combustible material shall not be attended to with fifteen
(15) days after having been requested by Licensor to do so, Licensor shall have the right
itself to perform the work and Licensee hereby agrees to reimburse Licensor for the
expense so incurred.
15.During the construction and any subsequent maintenance performed on Electric Supply
Line, Licensee shall perform such work in a manner to preclude damage to the property
of Licensor, and preclude interference with the operation of its railroad. The construction
of the Electric Supply Line shall be completed within one (1) year of the Effective Date.
Upon completion of the construction of the Electric Supply Line and after performing any
subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense,
restore Licensor's premises to their former state as of the Effective Date of this License.
16.If at any time during the term of this License, Licensor shall desire the use of its rail
corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with
by the Electric Supply Line, Licensee shall, at its sole expense, within thirty (30) days
after receiving written notice from Licensor to such effect, make such changes in the
Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid
interference with the proposed use of Licensor's rail corridor, including, without limitation,
the relocation of the existing or the construction of a new Electric Supply Line.
17.(a) Prior to Licensee conducting any boring work on or about any portion of the
Premises, Licensee shall explore the proposed location for such work with hand
tools to a depth of at least three (3) feet below the surface of the ground to
determine whether pipelines or other structures exist below the surface,
provided, however, that in lieu of the foregoing, the Licensee shall have the right
to use suitable detection equipment or other generally accepted industry practice
consulting with the Underground Services Association) to determine the
existence or location of pipelines and other subsurface structures prior to drilling
or excavating with mechanized equipment. Upon Licensee's written request,
which shall be made thirty (30) business days in advance of Licensee's
requested construction of the Electric Supply Line, Licensor will provide Licensee
any information that Licensor's Engineering Department has in its possession
concerning the existence and approximate location of Licensor's underground
utilities and pipelines at or near the vicinity of the proposed Electric Supply Line.
Prior to conducting any such boring work, the Licensee will review all such
material. Licensor does not warrant the accuracy of information relating to
subsurface conditions and Licensee's operations will be subject at all times to the
liability provisions herein.
(b) For all bores greater than 26.-inch diameter and at a depth less than 10.0 feet
below bottom of rail, a soil investigation will need to be performed by the
Licensee and reviewed by Licensor prior to construction. This study is to
determine if granular material is present, and to prevent subsidence during the
installation process. If the investigation determines in Licensor's reasonable
Form 421; Rev. 04/26105
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Law Department Approved Tracking #1244648
opinion that granular material is present, Licensor may select a new location for
Licensee's use, or may require Licensee to furnish for Licensor's review and
approval, in its sole discretion a remedial plan to deal with the granular material.
Once Licensor has approved any such remedial plan in writing, Licensee shall, at
its sole cost and expense, carry out the approved plan in accordance with all
terms thereof and hereof.

18. Any open hole, boring or well constructed on the Premises by Licensee shall be safely
covered and secured at all times when Licensee is not working in the actual vicinity
thereof. Following completion of that portion of the work, all holes or borings constructed
on the Premises by Licensee shall be:
(a)filled in to surrounding ground level with compacted bentonite grout; or
(b)otherwise secured or retired in accordance with any applicable Legal
Requirement. All excavated materials shall not remain on Licensor's property for
more than ten (10) days and shall be properly disposed of by Licensee in
accordance with applicable Legal Requirements.

19. Upon termination of this License, Licensee shall, at its sole cost and expense:
(a)remove all of its equipment from the Premises;
(b)remove the Electric Supply Line at Licensor's sole discretion;
(C) report and restore any damage to the Premises arising from, growing out of, or
connected with Licensee's use of the Premises;
(d)remedy any unsafe conditions on the Premises created or aggravated by
Licensee; and
(e)leave the Premises in the condition which existed as of the Effective Date of this
License.

20. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this License
at all times while on the Premises.
LIABILITY
21. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL
RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR AND
LICENSOR'S AFFILIATED COMPANIES, PARTNERS, SUCCESSORS,
ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY,
"INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS
LIABILITIES, FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS,
CAUSES OF ACTION, SUITS, DEMANDS, JUDGMENTS AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, COURT COSTS, ATTORNEYS' FEES
AND COSTS OF INVESTIGATION, REMOVAL AND REMEDIATION AND
GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR OTHERWISE
(COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR DESCRIPTION
Form 421; Rev. 04/26105
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Law Department Approved Tracking #12-44648
OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT
OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART):
(i)THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS
ENVIRONMENTAL PROVISIONS,
(ii)ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS
LICENSE,
(Ili) LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
(iv)THE ENVIRONMENTAL CONDITION AND STATUS OF THE
PREMISES CAUSED BY OR CONTRIBUTED BY LICENSEE, OR
(v)ANY ACT OR OMISSION OF LICENSEE OR LICENSEE'S
OFFICERS, AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS,
OR ANYONE DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF
THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL
OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN
WHOLE OR IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY
LIABILITIES WITH RESPECT TO WHICH LICENSEE'S OBLIGATION TO
INDEMNIFY THE INDEMNITEES DOES NOT APPLY ARE LIABILITIES TO
THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF AN INDEMNITEE.
(b)FURTHER, TO THE FULLEST EXTENT PERMITTED BY LAW,
NOTWITHSTANDING THE LIMITATION IN SECTION 21(a), LICENSEE SHALL
NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS
WHETHER BASED ON THE STRICT LIABILITY, NEGLIGENCE OR
OTHERWISE, THAT RAILROAD IS AN "OWNER", "OPERATOR",
"ARRANGER", OR "TRANSPORTER" WITH RESPECT TO THE ELECTRIC
SUPPLY LINE FOR THE PURPOSES OF CERCLA OR OTHER
ENVIRONMENTAL LAWS. LICENSEE WILL INDEMNIFY, DEFEND AND
HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS
REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES. LICENSEE
FURTHER AGREES THAT THE USE OF THE PREMISES AS
CONTEMPLATED BY THIS LICENSE SHALL NOT IN ANY WAY SUBJECT
LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN A COMMON
CARRIER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY
AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL
LICENSOR BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF
THE PREMISES.
(c)TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE FURTHER
AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED
NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD
HARMLESS THE INDEMNITEES AGAINST AND ASSUME THE DEFENSE
OF ANY LIABILITIES ASSERTED AGAINST OR SUFFERED BY ANY
Form 421; Rev. 04126105
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Law Department Approved Tracking #12-44648
INDEMNITEE UNDER OR RELATED TO THE FEDERAL EMPLOYERS'
LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF LICENSEE OR ANY
OF ITS AGENTS, INVITEES, OR CONTRACTORS CLAIM OR ALLEGE THAT
THEY ARE EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS
INDEMNITY SHALL ALSO EXTEND, ON THE SAME BASIS, TO FELA
CLAIMS BASED ON ACTUAL OR ALLEGED VIOLATIONS OF ANY
FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS, INCLUDING BUT
NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER INSPECTION
ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE
CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR
FEDERAL STATUTE.
(d) Upon written notice from Lucensor, Licensee agrees to assume the defense of
any lawsuit or other proceeding brought against any Indemnitee by any entity,
relating to any matter covered by this License for which Licensee has an
obligation to assume liability for and/or save and hold harmless any Indemnitee.
Licensee shall pay all costs incident to such defense, including, but not limited to,
attorneys' fees investigators' fees litigation and appeal expenses settlement
payments, and amounts paid in satisfaction of judgments.
PERSONAL PROPERTY WAIVER
22.ALL PERSONAL PROPERTY OF LICENSEE, INCLUDING, BUT NOT LIMITED TO,
FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL
BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE
FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN
WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE
INSURANCE
23.Licensee shall, at its sole cost and expense, procure and maintain during the life of this
Agreement the following insurance coverage:
A Commercial General Liability Insurance This insurance shall contain broad form
contractual liability with a combined single limit of a minimum of $2,000,000 each
occurrence and an aggregate limit of at least $4,000,000 Coverage must be
purchased on a post 1998 ISO occurrence or equivalent and include coverage
for, but not limited to, the following:
+ Bodily Injury and Property Damage
• Personal Injury and Advertising Injury
• Fire legal liability
• Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on
the certificate of insurance:
• It is agreed that any workers' compensation exclusion does not apply to
Licensor's payments related to the Federal Employers Liability Act or a
Licensor Wage Continuation Program or similar programs and any payments
made are deemed not to be either payments made or obligations assumed
Form 421; Rev, 04/26105
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Law Department Approved Tracking #12-44648
under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
• The definition of insured contract shall be amended to remove any exclusion
or other limitation for any work being done within 50 feet of railroad property.
• Any exclusions related to the explosion, collapse and underground hazards
shall be removed.
No other endorsements limiting coverage may be included on the policy.
B.Business Automobile Insurance. This insurance shall contain a combined single
limit of at least $1,000,000 per occurrence, and include coverage for, but not
limited to the following:
• Bodily injury and property damage
• Any and all vehicles owned, used or hired
C.Workers Compensation and Employers Liability Insurance. This insurance shall
include coverage for, but not limited to:
• Licensee's statutory liability under the worker's compensation laws of the
state(s) in which the work is to be performed. if optional under State law, the
insurance must cover all employees anyway.
• Employers' Liability (Part B) with limits of at feast $500,000 each accident,
$500,000 by disease policy limit, $500,000 by disease each employee.
D.Railroad Protective Liability Insurance. This insurance shall name only the
Licensor as the insured with coverage of at least $2,000,000 per occurrence and
$6,000,000 in the aggregate. The coverage obtained under this policy shall only
be effective during the initial installation and/or construction of the Electric Supply
Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE
COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further
maintenance of the Electric Supply Line is needed at a later date, an additional
Railroad Protective Liability Insurance Policy shall be required. The policy shall
be issued on a standard ISO form CG 00 35 1093 and include the following:
• Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 31
1093)
• Endorsed to include the Limited Seepage and Pollution Endorsement.
• Endorsed to include Evacuation Expense Coverage Endorsement.
• No other endorsements restricting coverage may be added.
• The original policy must be provided to the Licensor prior to performing any
work or services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in
Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or
its contractor. The limits of coverage are the same as above. The cost is $400.
u I elect to participate in Licensor's Blanket Policy;
o I elect not to participate in Licensor's Blanket Policy.
Form 421; Rev. 04/26/05
9
Law Department Approved Tracking #12-44648
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages and certificates of insurance shall reflect that no
exclusion exists.
Licensee agrees to waive its right of recovery against Licensor for all claims and suits
against Licensor. In addition, its insurers, through policy endorsement, waive their right
of subrogation against Licensor for all claims and suits The certificate of insurance
must reflect waiver of subrogation endorsement. Licensee further waives its right of
recovery, and its insurers also waive their right of subrogation against Licensor for loss
of its owned or leased property or property under its care, custody or control.
Licensee's insurance policies through policy endorsement must include wording which
states that the policy shall be primary and non-contributing with respect to any insurance
carried by Licenser. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable,
Railroad Protective) shall include a severability of interest endorsement and shall name
Licenser and Jones Lang LaSalle Global Services - RR, Inc. as an additional insured
with respect to work performed under this agreement. Severability of interest and
naming Licensor and Jones Lang LaSalle Global Services - RR, Inc. as additional
insureds shall be indicated on the certificate of insurance.
Licensee is not allowed to self-insure without the prior written consent of Licenser. If
granted by Licensor, any deductible, self-insured retention or other financial
responsibility for claims shall be covered directly by Licensee in lieu of insurance Any
and all Licensor liabilities that would otherwise in accordance with the provisions of this
Agreement, be covered by Licensee's insurance will be covered as if Licensee elected
not to include a deductible, self-insured retention or other financial responsibility for
claims.
Prior to commencing the Work, Licensee shall furnish to Licenser an acceptable
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage endorsements, and amendments and referencing the
contract auditlfOlder number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notify Licensor in writing
at least 30 days prior to any cancellation, non-renewal, substitution or material alteration.
This cancellation provision shall be indicated on the certificate of insurance. Upon
request from Licenser, a certified duplicate original of any required policy shall be
furnished.
Any insurance policy shall be written by a reputable insurance company acceptable to
Licenser or with a current Best's Guide Rating of A- and Class VII or better, and
authorized to do business in the state(s) in which the service is to be provided
Licensee WARRANTS that this License has been thoroughly reviewed by Licensee's
insurance agent(s)/broker(s), who have been instructed by Licensee to procure the
insurance coverage required by this Agreement. Allocated Loss Expense shall be in
addition to all policy limits for coverages referenced above
Form 421; Rev. 04126105
10
Law Department Approved Tracking #12-44648
Not more frequently than once every five years, Licensor may reasonably modify the
required insurance coverage to reflect then-current risk management practices in the
railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Licensee, Licensee shall require
that the subcontractor shall provide and maintain insurance coverages as set forth
herein, naming Licensor as an additional insured, and shall require that the
subcontractor shall release, defend and indemnify Licensor to the same extent and
under the same terms and conditions as Licensee is required to release, defend and
indemnify Licensor herein.
Failure to provide evidence as required by this section shall entitle, but not require,
Licensor to terminate this License immediately. Acceptance of a certificate that does not
comply with this section shall not operate as a waiver of Licensee's obligations
hereunder.
The fact that insurance (including, without limitation, self-insurance) is obtained by
Licensee shall not be deemed to release or diminish the liability of Licensee including,
without limitation, liability under the indemnity provisions of this License. Damages
recoverable by Licensor shall not be limited by the amount of the required insurance
coverage.
For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe
Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and
affiliates of each.
ENVIRONMENTAL
24. (a) Licensee shall strictly comply with all federal, state and local environmental laws
and regulations in its use of the Premises, including, but not limited to, the
Resource Conservation and Recovery Act, as amended (RCRA), the Clean
Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act,
CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground
storage tank, as defined by Environmental Laws on the Premises. Licensee shall
not release or suffer the release of oil or hazardous substances, as defined by
Environmental Laws on or about the Premises.
(b) Licensee shall give Licensor immediate notice to Licensor's Resource Operations
Center at [phone] of any release of hazardous substances on or from the
Premises, violation of Environmental Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with
respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on or from the Premises Licensee also shall
give Licensor immediate notice of all measures undertaken on behalf of Licensee
to investigate, remediate, respond to or otherwise cure such release or violation.
(b) In the event that Licensor has notice from Licensee or otherwise of a release or
violation of Environmental Laws arising in any way with respect to the Electric
supply Line which occurred or may occur during the term of this License,
Form 421; Rev. 04126/05
11
Law Department Approved Tracking #12-44648
Licensor may require Licensee, at Licensee's sole risk and expense, to take
timely measures to investigate, remediate, respond to or otherwise cure such
release or violation affecting the Premises or Licensor's right-of-way.
(d) Licensee shall promptly report to Licensor in writing any conditions or activities
upon the Premises known to Licensee which create a risk of harm to persons,
property or the environment and shall take whatever action is necessary to
prevent injury to persons or property arising out of such conditions or activities;
provided, however, that Licensee's reporting to Licensor shall not relieve
Licensee of any obligation whatsoever imposed on it by this License. Licensee
shall promptly respond to Licensor's request for information regarding said
conditions or activities.
ALTERATIONS
25.Licensee may not make any alterations to the Premises or permanently affix anything to
the Premises or any buildings or other structures adjacent to the Premises. without
Licensor's prior written consent.
NO WARRANTIES
26.LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY
STATED IN THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR
IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR
WARRANTIES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE
CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
QUIET ENJOYMENT
27 LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR
UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO -COVENANT OF QUIET ENJOYMENT IS MADE
DEFAULT
28. If default shall be made in any of the covenants or agreements of Licensee contained in
this document, or in case of any assignment or transfer of this License by operation of
law, Licensor may, at its option, terminate this License by serving five (5) days' notice in
writing upon Licensee. Any waiver by Licensor of any default or defaults shall not
constitute a waiver of the right to terminate this License for any subsequent default or
defaults, nor shall any such waiver in any way affect Licensor's ability to enforce any
Section of this License. The remedy set forth in this Section 28 shall be in addition to,
and not in limitation of, any other remedies that Licensor may have at law or in equity.
Form 421; Rev. 04/26/05
12
Law Department Approved Tracking #12-44648
LIENS AND CHARGES
29.Licensee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Licensee
on Premises. Licensor is hereby authorized to post any notices or take any other action
upon or with respect to Premises that is or may be permitted by law to prevent the
attachment of any such liens to Premises; provided, however, that failure of Licensor to
take any such action shall not relieve Licensee of any obligation or liability under this
Section 29 or any other Section of this License. Licensee shall pay when due any taxes,
assessments or other charges (collectively, 'Taxes) levied or assessed upon the
Improvements by any governmental or quasi-governmental body or any Taxes levied or
assessed against Licensor or the Premises that are attributable to the Improvements.
TERMINATION
30.This License may be terminated by Licensor, at any time, by serving thirty (30) days'
written notice of termination upon Licensee. This License may be terminated by
Licensee upon execution of Licensor's Mutual Termination Letter Agreement then in
effect. Upon expiration of the time specified in such notice, this License and all rights of
Licensee shall absolutely cease.
31.If Licensee fails to surrender to Licensor the Premises, upon any termination of this
License, all liabilities and obligations of Licensee hereunder shall continue in effect until
the Premises are surrendered. Termination shall not release Licensee from any liability
or obligation, whether of indemnity or otherwise, resulting from any events happening
prior to the date of termination.
ASSIGNMENT
32.Neither Licensee, nor the heirs, legal representatives, successors, or assigns of
Licensee, nor any subsequent assignee, shall assign or transfer this License or any
interest herein, without the prior written consent and approval of Licensor, which may be
withheld in Licensor's sole discretion.
NOTICES
33.Any notice required or permitted to be given hereunder by one party to the other shall be
in writing and the same shall be given and shall be deemed to have been served and
given if (i) placed In the United States mail, certified, return receipt requested, or (ii)
deposited into the custody of a nationally recognized overnight delivery service,
addressed to the party to be notified at the address for such party specified below, or to
such other address as the party to be notified may designate by giving the other party no
less than thirty (30) days' advance written notice of such change in address.
If to Licensor: Jones Lang LaSalle Global Services - RR, Inc.
3017 Lou Menk Drive, Suite 100
Fort Worth, TX 76131-2800
Attn: Licenses/Permits
Form 421; Rev. 04/26(05
13
Law Department Approved Tracking #1244648
with a copy to: BNSF Railway Company
2500 Lou Menk Dr. - AOB-3
Fort Worth, TX 76131
Attn: Manager - Land Revenue Management
If to Licensee: PacifuCorp
825 NE Multnomah Street Suite 1700
Portland, Oregon 97232
SURVIVAL
34.Neither termination nor expiration will release either party from any liability or obligation
under this License whether of indemnity or otherwise resulting from any acts omissions
or events happening prior to the date of termination or expiration, or, if later, the date
when the Electric Supply Line and improvements are removed and the Premises are
restored to its condition as of the Effective Date.
RECORDATION
35.It is understood and agreed that this License shall not be placed on public record.
APPLICABLE LAW
36.All questions concerning the interpretation or application of provisions of this License
shall be decided according to the substantive laws of the state of Texas without regard
to conflicts of law provisions
SEVERABILITY
37.To the maximum extent possible, each provision of this License shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
License shall be prohibited by, or held to be invalid under, applicable law, such provision
shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not
invalidate the remainder of such provision or any other provision of this License
INTEGRATION
38.This License is the full and complete agreement between Licensor and Licensee with
respect to all matters relating to Licensee's use of the Premises, and supersedes any
and all other agreements between the parties hereto relating to Licensee's use of the
Premises However, nothing herein is intended to terminate any surviving obligation of
Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior
written agreement between the parties.
Form 421; Rev. 04/26105
14
Law Department Approved Tracking #12-44648
MISCELLANEOUS
39 In the event that Licensee consists of two or more parties all the covenants and
agreements of Licensee herein contained shall be the joint and several covenants and
agreements of such parties
40. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way
impair the right of Licensor to enforce that provision for any subsequent breach thereof.
Jones Lang LaSalle Global Services - RR, Inc. is acting as representative for BNSF
Railway Company.
IN WITNESS WHEREOF, this License has been duly executed in duplicate, by the
parties hereto as of the day and year first above written.
BNSF RAILWAY COMPANY
Jones Lang LaSalle Global Services - RR, Inc., its
Attorney in Fact
3017 Lou Menk Drive, Suite 100
Fort Worth, TX 76131-2800
By:
Ed Darter
Title: Vice President -National Accounts
PACIFICORP
825 NE Multnomah Street Suite 1700
Portland, Oregon 97232
By:
Stuart Kelly, Managing Director
Title: Construction & Support Services
Form 421 Rev. 04126105
TRACKING NO. 12-44648
EXHIBIT "A"
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
PACIFICORP
SCALE: 1 IN.= 400 FT. SECTION: 20
NORTHWEST DIV. TOWNSHIP:_16S (B-32-2\
Q. E. SUBDIV. L.S. 0442 RANGE: 04W 83
DATE 02/24/2012 MERIDIAN: _WILLM
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