20130808Notice of Affiliate Transaction.pdf

Mark C. Moench
Senior Vice President and General Counsel
201 S, Main Street, Suite 2400
Salt Lake City, UT 84111
801-220-4459 Offtce
801-220-1058 Fax
ma r lt mo e n c h@1t o c iJi c o rp. c o m
August 8,2013
.
VIA OVERNIGHT DELIWRY
Idaho Public Utilities Commission
472West Washington
Boise,ID 83702-5983
Attention: Jean D. Jewell
Commission Secretary
Re: PacifiCorp Notice of Affiliate Transaction
Case No. PAC-E-05-8
Dear Ms. Jewell:
This letter will serve as notice pursuant to Commitment I l7(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 with BNSF Railway Company (BNSF) for a license allowing PacifiCorp to
construct facilities to provide retail electric retail service to a customer in Oregon. A verified
copy of the License For Electric Supply Line Across or Along Railway Property, Tracking #13-
47906 is included as Attachment A.
PacifiCorp is a wholly-owned indirect subsidiary of MEHC. MEHC is a subsidiary of
Berkshire Hathaway, Inc (Berkshire Hathaway). As of March 31,2010, Warren E. Buffet (an
individual who may be deemed to control Berkshire Hathaway), Berkshire Hathaway, various
subsidiaries of Berkshire Hathaway and various employee benefit plans of Berkshire Hathaway
subsidiaries together held an interest in excess of 5 percent in BNSF. Therefore, Berkshire
Hathaway's ownership interest in BNSF may create an affiliated interest in some PacifiCorp
jurisdictions.
PacifiCorp needs to install new electric service to a retail customer in Merrill, Oregon,
which will require the installation of a 12 kilovolt overhead distribution line crossing BNSF's
property. Without the license, the PacifiCorp's ability to provide adequate, safe and reliable
service to its customers would be diminished.
PacifiCorp will pay BNSF $3,384 for the license and $600 in processing fees. Obtaining
the license is in the public interest because it allows PacifiCorp 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
Jean D. Jewell
Notice of Affiliate Transaction
August 8,2013
obligation to provide electric service. As the property owner, BNSF is the only entity that can
provide this license to PacifiCorp.
Please do not hesitate to contact me if you have any questions.
Best Regards,
Vr(rr.L6,@
Mark C. Moench
Senior Vice President and General Counsel
PacifiCorp
Enclosures
ATTACHMENTA
JoNss LeNc
LeSerLe.
Joncs lang LaSnllc Brokerage, Inc
4300 Auon Carter Blvd., Suile l(R
Fod Wonh, 'fexas 761 55-26E5
rcl + I 8 l7-230-2600, fax +l 817 306-8265
June 26,2013
PaclflCorp
Altention; Mr. Scott Mease
825 NE Multnomah Street, Suite 1700
Portland, OR 97232
Tracking# 1347906
Dear Mr. Mease:
Attached please find a copy of the requested contract for execution by an officiat authorized to execute contract
agreements on behalf of your company. Please print two (2) copies execute and return both copies wlth
orlslnal slonature for completion on part of BNSF Railway Company ("BNSF) to this office, along with the
following requirements:
. A check in the amount of $3,384,00 payable to BNSF Railway Cornpany which covers the contract
fee(s).
Please note the agreements cannot be executed by BNSF without an approved insurance certificate. lf there
are any issues with your insurance, you will be contacted by a member of the Risk Management team of BNSF
Railway.
1. A Certificate of lnsurance as required in the agreement.
2. A separate policy for Railroad Protective Liability lnsurance as roquired in the agreement (ORIGINAL
POLICY MUST BE PROVIDED). BNSF Railway Company will be the only insured party; OR;
ln lleu of provldlng a separate pollcy for Rallroad Protectlve Liability lnsurance, you may participate in the
BNSF's Railroad Protective Policy by checking the appropriate box in the contract and including an additional
$460.00 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 shall 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 shatl 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 speciflcations/plans you provided may dlffer from BNSF's mlnimum speclficatlon requirements.
Therefore, prlor to your installation, please revlew the Exhibit A to determlne the specificatlons
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.
Associate Contract Specialist
Attachment
Sincerely,
)'-"/-
Tanita Thomas
Tracking #13-47906
LICENSE FOR ELECTRIC SUPPLY LINE
AGROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, lrrespective of Voltage, Overhead or Undarground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective , 2013, (the
"Effectlve Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Llcenso/') and PACIFIGORP,
an Oregon corporation ("Llcensee").
ln consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Grant of License. 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 and maintain, 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 One (1) conductors, together
with its supporting or containing structures (collectively, the "Electric Supply Lino"), across or along Licenso/s
rail corridor at or near the station of Merrill, County of Klamath, State of OR, Line Segment 0055, Mile Post 18.76,
as shown on the attached Drawing No. 1-58137 dated June 13, 2013, attached hereto as S!!!!!-f and
incorporated herein by reference (the "Premlses").
2. Term,. This License shall commence on the Effective Date and shall continue for a period of twenty-flve (25)
years, subject to prior terminalion as hereinafter described.
3. Existing lmprov.emgnts. Licensee shall not disturb any improvements of Licensor or Licenso/s existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere with the use, repair, maintenance or
replacement of such improvernents.
4. Use of the Premises. Licensee shall use the Premises solely for construction, maintenance, and use of the
Electric Supply Line in accordance with the Drawings and Specifications. Licensee shall not use the Premises for
any other purpose.
5. Alterationq. Except as set forth in this License, 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.
COMPENSATION
6. License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thousand Three Hundred
Eighty Four and No/100 Dollars ($3,384) as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "cost' or "costs" and "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.
Licensee agrees to reimburse Licensor (pursuant to the terms of Sectlon I below) for all costs and
expenses incurred by Licensor in connection with Licensee's use of tho Premises or the presence,
construction and maintenanco of the Electric Supply Line, including but not limited to the furnishing of
Licensor's flaggers and any vehicle rental costs incurred. Licensee shall bear the cost of llagger services
and other safety measures provided by Licensor, when deemed necessary by Licensols representative,
Flagging costs shall include, but not be limited to, the following: pay for at least an eight (B) hour basic
7.2
-1-Fotm 421: Rev. 201 30301
Tracking #13-47906
day with time and one-half or double time for overtime, rest days and holidays (as applicable); vacation
allowance; paid holidays (as applicable); 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 hy
appropriate Federa! authorities may Increase flagging rates. Flagging rates in effect at the time of
performance by the flaggers will be used to calculate the flagging costs pursuant to this Section
7.
8. PaymentJerms. All invoices are due thirty (30) days after the date of invoice. lf Licensee fails 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 the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Watl
Street Journal in the preceding December plus two and one-half percent (2-112o/o), or (ii) the maximum rate
permitted by law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Riqhts of Use. Licensor excepts and reserves the right, to be exercised by Licensor and any other
parties who may obtain written permission or authority frorn Licensor:
9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or communication
pipellines/cables and appurtenances (other than the Electric Supply Line) and other facilities or structures
of like character upon, over, under or across the Premises existing as of ihe Effective Date;
to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additionalfacilities,
structures and related appurtenances upon, over, under or across the Premises; or
to use the Premises in any manner as 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 4 above.
Riqht to Require Relocation. lf at any time during the term of this License, Licensor desires the use of its rail
corridor in such a manner as would, in Licensols reasonable opinion, be interfered with by the Electric Supply
Line, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice frorn 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 Elechic Supply Line, or the construction of a new electric line to replace the Electric Supply Line.
Notwithstanding the foregoing, Licensee agrees to make all emergency changes and minor adjustments, as
determined by Licensor in its sole discretion, to the Electric Supply Line promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Suoply Line.
11.1 Licenseeshall notify Licensor's Roadmaster, at 1800 LaverneAve Klamath Falls, OR97601, telephone
[phone], at least ten (10) business days prior to installation of the Electric Supply Line and prior to
entering the Premises for any subsequent maintenance thereon. ln the event of emergency, Licensee
9.2
9,3
10.
-t-
Form 421; Rev.2013030f
Tracking #13-47s06
shall notify Licensor of Licensee's entry onto the Premises at the telephone number above as soon as
practicable and shall promptly thereafter follow up with written notice of such entry.
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while
on the Premises,
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's
tracks to the other.
11.4 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.
11.5 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 endanger or
interfere with (i) the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the
safe operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third
parties. lf 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.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Electric Supply Line in such a
manner and of such rnaterial that the Electric Supply Line will not at any time endanger or interfere with (i)
the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe operation
and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. The
construction of the Electric Supply Line shall be completed within one (1) year of the Effective Date, and
any subsequent maintenance shall be completed within one (1) year of initiation. Within fifteen (15) days
after completion of the construction of the Electric Supply Line or the performance of any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to
substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in
writing. On or before expiration or termination of this License for any reason, Licensee shall, at its sole
cost and expense, surrender the Premises to Licensor pursuant to the terms and conditions set forth in
Section 24 hereof.
11.7 Licensor may direct one or more 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
and Legal Requirements (defined below). lf ordered at any time to halt construction or maintenance of
the Electric Supply Line by Licensor's personnel due to non-compliance with the Drawings and
Specifications 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 and maintained in strict accordance with the Drawings and
Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the
exercise of, 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. lf at any time Licensee shall, in the sole judgment of
Licensor, fail to properly perform its obligations under this Section 11, 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 shall promptly reimburse Licensor for allcosts and expenses of
such work, pursuant to the terms of Sectlon 8. Licensor's failure to perform any obligations of Licensee
shall not alter the liability allocation hereunder.
Form 421; Rev. 201 30301
12.
Tracking #1347906
11.8 Licensee shall, at its sole cost and expense, construct and at all times maintain the Electric Supply Line in
accordance with the National Electric Safety Code.
11.9 lf the operation or maintenance of the Electric Suppty Line at any time causes interference, including but
not limited to physical interference from electromagnetic induction, electrostatic induction, or from stray or
other currents, with the facilities of Licensor or of any lessee or licensee of Licensor, or in any manner
interfere with the operation, maintenance, or use by 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 the 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 judgment of Licensor's representative, to eliminate such
interference. The cost of such protective devices and their installations shall be borne solely by Licensee.
lf any of the interference covered by this Section 11.9 shall be, in the judgment of Licensor, of such
importance to the safety of Licenso/s operations as to require immediate corective action, Licensee,
upon notice from Licensor, shalleither, at Licensor's election, cease using the Electric Supply Line for any
purpose whatsoever and remove same, or reduce the voltage or load on the Electric Supply Line, or take
such other interim protective measures as Licensor may deem advisable, until the protective devices
and/or replacement equipment required by this Section 1{.9 have been installed, put in operation, tested,
and found to be satisfactory to correct the interference.
1 1.10 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles
on the Premises, if any, and will at all times keep the space around such poles free of such material, and
if removalof 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.
Boring and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar 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 pipetines or other structures
exist below the surface, provided, howeve[, that in lieu of the foregoing, Licensee shall have the right to
use suitable detection equipment or other generally accepted industry practice (e.9., 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. Licensee may request
information from Licensor concerning the existence and approximate location of Licenso/s underground
lines, utilities, and pipelines at or near the vicinity of the proposed Electric Supply Line by contacting
Licensor's Telecommunications Helpdesk at least thirty (30) business days prior to installation of the
Electric Supply Line. Upon receiving Licensee's timely request, Licensor will provide Licensee with the
information Licensor has in its possession regarding any existing underground lines, utilities, and
pipelines at or near the vicinity of the proposed Electric Supply Line and, if applicable, identify the location
of such lines on the Premises pursuant to Licensofs standard procedures. Licensor does not warrant the
accuracy or completeness of information relating to subsurface conditions of the Premises and Licensee's
operations will be subject at alltimes to the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil
investigation must be performed by 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.
lf the investigation determines in Licenso/s reasonable opinion that granular material is present, Licensor
may select a new location for Licensee's use, or may require Licensee to furnish for Licenso/s review and
approval, in Licenso/s sole discretion, a remedial plan to dealwith the granular material. Once Licensor
has approved any such remedial plan in writing, Licensee shall, at Licensee's sole cost and expense,
carry out the approved plan in accordance with all terms thereof and hereof.
-4-Form421i Rev. 20f 30301
Tracking #13-47906
12.3 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:
12.3.1 lilled in to surounding ground levelwith compacted bentonite grout; or
12.3.2 otherwise secured or retired in accordance with any applicable Legal Requirement. No
excavated materials may rernain on Licensor's property for more than ten (10) days, but must be
properly disposed of by Licensee in accordance with applicable Legal Requirements.
LTAB|LTTY ANp TNSURANCE
13. Liabilityandlndemnificqtion.
13.1 For purposes of this License: (a) "lndemnltees" means Licensor and Licensor's affiliated companies,
partners, successors, assigns, legalrepresentatives, officers, directors, shareholders, employees, and agents; (b)
"Liabilities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits,
demands, judgments, and expenses (including, without limitation, court costs, reasonable altorneys' fees, costs of
investigation, removal and remediation, and governmental oversight costs) environmental or otherwise; and (c)
"Licensee Partigs" means Licensee or Liconsee's officers, agents, invitees, licensees, employees, or contractors,
or any party directly or indirectly employed by any of them, or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS
GoNTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS TNDEMNITEES FOR, FROM,
AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, K]ND, OR DESCRIPTION DIRECTLY OR
INDIRECTLY AR|SING OUT OF, RESULTTNG FROM, OR RELATED TO (tN WHOLE OR tN PART):
13.2.1 THIS LICENSE, |NCLUDING, WITHOUT LIMITAT|ON, trs ENVTRONMENTAL PROV|SIONS,
13,2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13,2,4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES ANY AND ALL
cLAtMS THAT By VTRTUE OF ENTERTNG INTO THIS L|CENSE, LTCENSOR lS A GENERATOR, OWNER,
OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF THE COMPREHENSIVE
ENVTRONMENTAL RESPONSE, COMPENSATTON, AND LtABtLtrY ACT, AS AMENDED ("CERCLA") OR
oTHER ENVTRONMENTAL LAWS (DEFINED BELOW). LTCENSEE WILL INDEMNIFY, DEFEND, AND HOLD
THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS. NOTHING IN THIS L]CENSE IS
MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER
DEFENSES AND THIS LIGENSE SHOULD NOT BE SO CONSTRUED. IF ANY AGENCY OR COURT
CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES,
LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND INDEMNITEES FOR ANY
Fotm421; Rev.20130301
Tracking #13-47906
LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS LICENSE. IN NO EVENT AS BETWEEN
LICENSOR AND LICENSEE AS TO USE OF THE PREMIsES AS CONTEMPLATED BY THIS LICENSE
SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR THE ENVIRONMENTAL CONDITION OF THE
PREMISES.
13.4 IF ANY EMPLOYEE OF ANY LIGENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF
ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND
SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE
INDEMNITEES HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR
RELATED TO (tN WHOLE OR tN PART) ANY SUCH ASSERTTON INCLUD|NG, BUT NOT LIMITED
TO, ASSERTIONS OF EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOW'NG OR ANY
PROGEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS. LIABILITY ACT, THE SAFETY
APPLIANCE AGT, THE LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND
.HEALTH ACT, THE RESOURCE CONSERVATTON AND REGOVERY ACT, AND ANY SIMILAR
STATE OR FEDERAL STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES ARE
PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMN|TEE, BUT SHALL APPLY TO ALL OTHER LtABrLlTlES, INCLUDTNG THOSE ARTSING FROM OR
ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR STRICT
LIAB!LITY OF ANY INDEIl,INITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any lndemnitee 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
lndemnitee. Licensee shall pay allcosts and expenses incident to such defense, including, but not limited
to, reasonable attorneys'fees, investigators'fees, litigation and appeal expenses, settlement payments,
and amounts paid in satisfaction of judgments.
Persgnal Property Risk oJ, Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO,
FIXTURES, EQUIPMENT, OR RELATED MATERTALS 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.
ln$urance. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License the
following insurance coverage:
15.1 Comfnercial General Liability lnsurance. 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 but in no event less than the amount othenrvise carried by Licensee. Coverage must be
purchased on a post 2004 lSO occurrence or equivalent and include coverage for, but not limited to, the
following:. Bodily lnjury and Property Damage. Personal lnjury and Advertising lnjury
' Fire legalliability. Products and completed operations
'14.
Form421i Rev.20130301
Tracking #1347906
This poliey shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:. 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.
' Waiver of subrogation in favor of and acceptable to Licensor.
' Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle
Brokerage, lnc.
' Separation of insureds.. The policy shall be primary and non-contributing with respect to any insurance carried by Licensor.
It is agreed that the workers'compensation and employers' liability related exclusions in the Commercial
General Liability lnsurance policy(s) required herein are intended to apply to employees of the policy
holder and shall not apply to Licensor's employees.
No other endorsements limiting coverage may be included on the policy.
15.2 Fusiness Automobile lnsurance. This insurance shall contain a combined single timit of at least
$1,000,000, and include coverage for, but not limited to the following:
' Bodily injury and property damage.. Any and allvehicles owned, used or hired.
This policy shall also contain the following endorsements, which shall be indicated on the certificate of
insurance:
. Waiver of subrogation in favor of and acceptable to Licensor.. Additional insured endorsement in favor of and acceptable to Licensor.
' Separation of insureds.. The policy shall be primary and non-contributing with respect to any insurance carried by Licensor.
15.3 Workers' Compensation and Employers' Liabilif){ lnsurance. This insurance shall include coverage for,
but not limited to:. Licensee's statutory liability under the workers' compensation laws of the state(s) in which the
services are to be performed, lf optional under state laws, the insurance must cover all employees
anyway.. Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy
limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be indicated on the
certificate of insurance:. Waiver of subrogation in favor of and acceptable to Licensor.
15-4 Railroad Protective Liability lnsurance. This insurance shall name only Licensor as the lnsured 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 CONSTRUGTION OF THE ELEGTRIC SUPPLY LINE SHALL BE COMPLETED
WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. lf further maintenance of the Electric Supply Line is
needed at a later date, an additional Railroad Protective Liability lnsurance Policy shatl be required. The
policy shall be issued on a standard ISO forrn CG 00 35 12 03 and include the following:. Endorsed to include the Pollution Exclusion Amendment.
' 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 Licensor prior to performing any work or servlces under this
License.
-7-Form 42'!; Rev. 20130301
Tracking #13-47906
. Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and accidental
loss of or damage to all property owned by any named insured and all property in any named
insured's care, custody and control arising out of the acts or omissions of the contractor named on the
Declarations."
ln lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from the Effective
Date, Licensee may participate in Licensofs Blanket Railroad Protective Liability lnsurance Policy
available to Licensee or its contractor. The limits of coverage are the same as above. The cost is $460.
tr I elect to participate in Licensor's Blanket Policy;
tr I elect not to participate in Licensor's Blanket Policy.
15.5 O_therReouirements:
15.5.1 \A/here allowable by law, all policies (applying to coverage listed above) shall contain no exclusion
for punitive damages.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. ln addition, Licensee's insurers, through the terms of the policy or a policy
endorsement, must waive their right of subrogation against Licensor for all claims and suits, and
the certificate of insurance must reflect the waiver of subrogation endorsement. Licensee further
waives its right of recovery, and its insurers must also waive their right of subrogation against
Licensor for loss of Licensee's owned or leased property, or property under Licensee's care,
custody, or control.
15.5,3 Licensee is not allowed to self-insure without the prior written consent of Licensor. lf granted by
Licensor, any 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 License, be covered by Licensee's insurance will be
covered as if Licensee elected not to include a self-insured retention or other financial
responsibility for claims.
15.5.4 Prior to entering the Premises, Licensee shall furnish to Licensor an acceptable certificate(s) of
insurance including an original signature of the authorized representative evidencing the required
coverage, endorsernents, and amendments. Licensee shall notify Licensor in writing at least 30
days prior to any cancellation, non-renewal, substitution, or material alteration. ln the event of a
claim or lawsuit involving Licensor arising out of this License, Licensee will make available any
required policy covering such claim or lawsuit.
15,5.5 Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or
with a current Best's Guide Rating of A- and Class Vll or better, and authorized to do business in
the state(s) in which the service is to be provided.
15.5.6 lf coverage is purchased on a "claims rnade" basis, Licensee hereby agrees to maintain coverage
in force for a minimum of three years after expiration or terminalion of this License, Annually,
Licensee agrees to provide evidence of such coverage as required hereunder.
15.5.7 Licensee represents 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 License, Allocated Loss Expense shall be in addition to all policy limits for
coverages referenced above.
15.5.8 Not more frequently than once every five years, Licensor may reasonably modify the required
insurance coverage to reflect then-cunent risk management practices in the railroad industry and
underwriting practices in the insurance industry.
-8-Fotm 421i Rev. 20130301
Tracking #1347906
15.5.9 lf any porlion 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 condltions as Licensee
is required to release, defend and indernnify Licensor herein.
15.5.10 Failure to provide evidence as required by this Section l5 shallentitle, but not require, Licensor
to terminate this License irnmediately. Acceptance of a certificate that does not comply with this
Section shall not operate as a waiver of Licensee's obligations hereunder.
15.5.11 The fact that insurance (including, without limitation, self-insurance) is obtained by Licensee shall
not be deemed to release or dimlnish the liability of Licensee, including, without timitation, liability
under the indemnity provisions of this License. Damages recoverable by Licensor shall not be
limited by the amount of the required insurance coverage.
15.5.'12 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC",
'BNSF Railway Company" and the subsidiaries, succ€ssors, assigns and affiliates of each.
coMPLtANCE WTH LAWS. REGULATTONS. ANp ENVIRONMENTAL MATTERS
16. Compliance with Laws, Rules. and Reoulations.
16.1 Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances, orders,
covenants, restrictions, or decisions of any court of competent jurisdiction ("Logal Requlrements")
relating to the construction, maintenance, and use of the Electric Supply Line and the use of the
Premises.
16.2 Prior to entering the Premises, Licensee shall and shall cause its contracto(s) to comply with all of
Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees,
contractors, agents or invitees entering upon the Premises completes the safety orientation program at
the Website "www.contractororientation.com" (the "Safety Orientatlon") within one year prior to entering
upon the Premises. Additionally, Licensee must ensure that each and every employee of Licensee, its
contractors, agents and invitees possess a card certifying completion of the Safety Orientation prior to
entering upon the Premises. Licensee must renew the Safoty Orientation annually.
16.3 Licensee shal! obtain on or before the date it or its contractor enters the Premises, any and all additional
rights-of way, easements, licenses and other agreements relating to the grant of rights and interests in
and/or access to the Prernises (collectively, the "Rlghts") and such other rights, licenses, permits,
authorizations, and approvals (including without limitation, any necessary local, state, fedoral or tribal
authorizations and environmental perrnits) that are necessary in order to permit Licensee to construct,
maintain, own and operate the Electric Supply Line and otherwise to perform its obligations hereunder in
accordance with the terrns and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does not
expire, in accordance with its ordinary terms, prior to the last day of the term of this License or, if the inltial
stated term of any such Right expires in accordance with its ordinary terms on a date earlier than the last
day of the term of this License, Licensee shall, at its cost, exercise any renewal rights thereunder, or
otherwise acquire such extensions, additions and/or replacements as may be necessary, in order to
cause the stated term thereof to be continued until a date that is not earlier than the last day of the term of
this License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate or
use the Electric Supply Line in accordance with the terms and conditions of this License, this License
thereby shall automatically expire upon such expiration or termination of the Right.
-9-Form 421: Rev. 20130301
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17. Environmer:rtal.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the Resource Gonservation and
Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, and CERCLA (collectively refened 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.
17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as
"hazardous waste" and "hazardous substances" rnay now or in the future be defined by any federal,
state, or local governmental agency or body on the Premises. Licensee agrees periodically to furnish
Licensor with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this
Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensois Resource Operations Center at (800) 832-
5452 ol any known (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation
of Environmental Laws, or (iii) 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, from, or affecting 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.
17.4 lf 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, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or othenrise cure such release or violation affecting the Premises or
Licensor's right-of-way.
17.5 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, property, or the environment 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
Licenso/s request for information regarding said conditions or activities.
D lscLAllt,rEF oF WARRANTTES
18. No Warrantieg.
18.1 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 REPRE$ENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LIGENSE. LIGENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST
BY OPERATION OF LAW OR lN EQUITY, |NCLUDING, WTTHOUT LIMITAT|ON, ANYWARRANTY OF
MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPO$E.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
oR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR OTHER RIGHTS GRANTED
HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LTCENSEE'S CONSTRUCTTON,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WILL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
tNcLUDtNG, WTTHOUT LIMITAT|ON, ANY LEASES, USE RtcHTS, EASEMENTS AND LIENS OF
ANY THIRD PARTY.
-10-Form421i Rev.20130301
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19. Disclaimer of Warranty for Quiet Enjoyment. LICENSOR DOES NOT WARRANT lTS TITLE TO THE
PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
20, Eviction at Risk of Licensee. ln case of the eviction of Licensee by anyone owning, claiming title to, or claiming
any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be
liable (i) to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recurring charge
paid in advance, or (ii) for any damage Licensee sustains in connection with the eviction.
LIENS AND TAXES
21. Liens and C,haroes. 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 relieye Licensee of any obligation or liability under this Section 21 or
any other Section of this License.
22. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or
assessed by any governmental or quasi-governrnental body upon the Electric Supply Line or any other
improvements constructed or installed on the Premises by or for Licensee (collectively, the "lmprovements") or
any Taxes levied or assessed against Licensor or the Premises that are athibutable to the lmprovements.
DEFAULT. rEB"rUINATION. ANp SURRENpER
23- Default and Termination. ln addition to and not in limitation of Licensor's right to terminate for failure to provide
evidence of insurance as required pursuant to the terms of Section 15, the following events are also deemed to
be events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in this
License and Licensee fails to cure said default within thirty (30) days after written notice is provided to
Licensee by Licensor, or in case of any assignment or transfer of this License in violation of Section 26
below, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon
Licensee. Notwithstanding the foregoing, Licensor shall have the right to terminate this License
immediately if Licensee fails to provide evidence of insurance as required in Section {5.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, torminate this License by serving five (5) days' notice of
termination upon Licensoe.
23.3 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 Sectiort 23 shall be in addition
to, and not in limitation of, any other remedies that Licensor may have at law or in equity.
23.4 ln addition to and not in limitation of Licenso/s rights to terminate this License for failure to provide
evidence of insurance or occurrence of defaults as described above, this License may be terminated by
either party, at any time, by serving thirty (30) days' written notice of termination upon the other party.
Such terrnination shall not release either party hereto from any liability or obligation under the License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the
date of termination or thereafter in case by the terms of the License it is provided that anything shall or
may be done after termination hereof.
Fom421l Rev.20130301
24.
Tracking #13-47900
Surrender of the 3rerylises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
24.1-1 if so directed by Licensor in writing, remove the lmprovements, the Electric Supply Line and all
appurtenances thereto, or, at the sole discretion of Licensor, appropriately decommission the
Electric Supply Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premises or Licensofs other property arising from, growing
out of, or connected with Licensee's use of the Premises;
24-'1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date.
24.2 Upon any expiration or termination of this License, if Licensee fails to surrender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.{ above (the "Restoration Obllgations"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for
Licensee to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder
shall continue in effect until the Premises are surrendered and the Restoration Obligations are completed.
Neither termination nor expiration shall release Licensee from any liability or obligation under this
License, whether of indemnity or othenrvise, resulting from any acts, omissions or events happening prior
to the date of termination, or, if later, the date when Licensee suirenders the Premises and all of the
Restoration Obligations are completed.
24.3 lf Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such
termination of its tenancy, then Licensor may, at its election, either: (i) remove the Electric Supply Line
and the other lmprovernents or othenrrrise restore the Premises, and in such event Licensee shall, within
thirty (30) days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notice to
Licensee, take and hold the Electric Supply Line and the other lmprovements and personal property as its
sole proparty, without payment or obligation to Licensee therefor, or (iii) specifically enforce Licensee's
obligation to restore and/or pursue any remedy at law or in equity against Licensee for failure to so
restore. Further, if Licensor has consented to the Electric Supply Line and the other lmprovements
remaining on the Premises following termination, Licensee shall, upon request by Licensor, provide a bill
of sale in a form acceptable to Licensor conveying the Electric Supply Line and the other lmprovements
to Licensor.
MISCELLANEOUS
25. Successgrs and Assigns. All provisions contained in this License shall be binding upon, inure to the benefit of,
and be enforceable by the respective successors and assigns of Licensor and Licensee to the same extent as if
each such successor and assign was named a party to this License.
26. Assignment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
262 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of the
equity interests of Licensee following which the equity interest holders of Licensee immediately prior to
such sale own, directly or indirectly, less than 5Ao/o of the combined voting power of the outstanding
voting equity interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and
-12-Form 421; Rev, 20130301
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(i1) to the extent such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any
reorganization, recapitalization, merger or consolidation involving Licensee. Notwithstanding the
foregoing, any reorganization, recapitalization, merger or consolidation following which the equity interest
holders of Licensee immediately prior to such reorganization, recapitalization, merger or consolidation
own, directly or indirectly, at least 50o/o of the combined voting power of the outstanding voting equity
interests of Licensee or any successor thereto or the entity resulting from such reorganization,
recapitalization, merger or consolidation shall not be deemed an assignment. THIS LICENSE SHALL
NOT RUN WITH THE LAND WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH
CONSENT TO BE IN LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Sectlon 26.1 above or anything contained in this License to the
contrary, if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in
contravention of the provisions of this License (a "Purported Assignment") to another party (a
"Purported Transferee"), the Purported Transferee's enjoyment of the rights and privileges granted
under this License shall be deemed to be the Purported Transferee's agreement to be bound by all of the
terms and provisions of this License, including but not limited to the obligation to comply with the
provisions of Sectlon 15 above concerning insurance requirernents. ln addition to and not in limitation of
the foregoing, Licensee, for itself, its successors and assigns, shall indemnify, defend and hold harmless
Licensor for all Liabilities of any nature, kind or description of any person or entity directly or indirectly
arising out of, resulting from or related to (in whole or in part) a Purported Assignment.
26.4 The provisions of this Section 26 shall survive the expiration or earlier termination of this License,
27. Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to the other
shall be in writing and tha sarne 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 notilied may designate by giving the other party no less than
thirty (30) days' advance written notice of such change in address.
lf to Licensor:Jones Lang LaSalle Brokerage, lnc,
4300 Amon Carter Blvd., Suite 100
Fort Worth, TX 76155
Attn: Permits/Licenses
BNSF Railway Company
2500 Lou Menk Dr. -AOB3
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
PacifiCorp
with a copy to:
825 NE Multnomah Street, Suite 1700
Portland, Or 97232
Survival. 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 the other lmprovements
are removed and the Premises are restored to its condition as of the Effective Date.
Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
lf to Licensee:
29.
-13-Form421: Rev.20130301
30.
31.
Tracking #13-47906
Aoplicable Law. 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. 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.
lntegration. 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 agreernents between the
parties hereto relating to Licensee's use of the Premises as described herein. 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.
Joint and Several Liability. lf 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.
Waiver. 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.
lnterpretatign,
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any parg
based upon the source of the draftsmanship; both parties hereby agree that this License shall not be
subject to the principle that a contract would be construed against the party which drafted the sarne.
Article titles, headings to sections and paragraphs and the table of contents (if any) are inserted for
convenience of reference only and are not intended to be a part or to affect the meaning or interpretation
hereof. The exhibit or exhibits referred to herein shall be construed with and as an integral part of this
License to the same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import; "writing", "written" and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a visible
form; references to any person are also to that person's successors and permitted assigns; "hereof',
"herein", "hereunder" and comparable terms refer to the entirety hereof and not to any particular article,
section, or other subdivision hereof or attachment heroto; references to any gender include references to
the masculine or feminine as the context requires; references to the plural include the singular and vice
versa; and references to this License or other documents are as amended, modified or supplemented
from time to time.
Counteroarts. This License may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature pages
from any counterpart may be appended to any other counterpart to assemble fully executed documents, and
counterparts of this License may also be exchanged via email or electronic facsimile machines and any email or
electronic facsimile of any party's signature shall be deemed to be an original signature for all purposes.
Licensor's Representative. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF Railway
Company.
END OF PAGE - SIGNATURE PAGE FOLLOWS
32,
33.
34.
35.
36.
37.
-14-
F orm 421 : Rev. 20i 30301
Tracking #13-47906
This License has been duly executed by the parties hereto as of the date below each party's signature; to be
effective, however, as of the Effective Date.
LT9ENSOR:
BNSF RAILWAY GOMPANY a Delaware corporation
By: Jones Lang LaSalle Brokerage, lnc.,
4300 Amon Carter Blvd, Suite 100
FortWorth, TX 76155
By:
Title:
Date:
By:
Title:
Date:
Ed Darter
Vice President - Nationa!Accounts
LICENSEE:
PACIFICORP an Oregon corporation
By: 825 NE Multnomah Street, Suite 1700
Portland, Or 97232
Stuart Kelly
Managing Director, Construction & Support Services
-15-Form421; Rev.20130301
ExHIBIT 'IA'I
ATIACI{ED TO CONTRACT BETIEEN
BNSF RAILUAY COMPANY
AND
PACIFICORP
SCALET I IN.=-!0O FT,NORTHWEST DIV,
OREGON TRUNK SUBDIV.
DATE 06/13/2013
L.S. 005E
SECTI0N: os
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RANGE: I 1 E
IERIDIANT l{ILLM
\*{{ff,MP 18.78ES 1025184
LINE
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PROPERTY LINE
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DESCRIPTION (IF
IIRES L()CATED
UIRES OVER TRACK
AS SHoilt{ 80LD
TYPE NUI,IBER V{)LTAGE
ELECTR IC
NEAR MERRILL
COUNTY OF KLAMATH
DISIAI{CE ABOVE
Tt]P OF RAIL
38'
STATE OF OR
CLEARS RAILIIAY
COIPAI{Y,S ilIRES
JLC
TRAC;SN6 NO. 13-47905
DRAWING NO. 1-58157
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