20140527Notice of Affiliate Transaction.pdf

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May 27,2014
VIA OWRNIGHT 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) r, of an affiliate
interest transaction with BNSF Railway Company (BNSF) for a license allowing PacifiCorp to
construct facilities to provide retail electric service to a customer in Toppenish, Washington. A
verified copy of the License for Electric Supply Line Across or Along Railway Property,
Tracking #14-3004 is included with this Notice as Attachment A.
PacifiCorp is a wholly-owned indirect subsidiary of Berkshire Hathaway Energy
Company (BHE). BHE is a subsidiary of Berkshire Hathaway, [nc. (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 or near Toppenish,
which will require crossing BNSF's property. PacifiCorp will pay BNSF $3,000 for the license,
$1,600 for railroad protective liability insurance 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
obligation to provide electric service. As the property owner, BNSF is the only entity that can
provide this license to PacifiCorp.
t As of April 30,2014, MEHC was renamed Berkshire Hathaway Energy.
Jean D. Jewell
Notice of Affiliate Transaction
May27,2014
Please do not hesitate to contact me if you have any questions.
Best Regards,
R. JeffRichards
Vice President and General Counsel
PacifiCorp
Enclosures
Law Deparffient Approved ContractNo. ltt-3004
BF#
LICENSE FOR ELECTRIC SI]PPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electic Light, Power Supply, Irrespective of Voltage, Overhead or Underground)
THIS LICENSE ("License"), made as of the lst day of June,2014 ('Effective Daten) by
and benveen BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and
PACIFICORP, an Oregon corporation ( "Licensee").
NOW TIIEREF'ORE, in consideration of the mutual covenants contained herein, the
parties agree to the following:
GENERAL
l.Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests,
and estates of third parties including, without limitation, any leases, so rights,
easements, liens or other encumbrances, and upon the terms and conditions set forth
below, to constnrct, maintai& and use in strict accordance with the drawings and
specifications approved by Licensor as part of Licersee's application process (nthe
Drawings and Specifications") an electic supply line containing a maximum of four (4)
conductors, together with its supporting or containing structures ("Electric Supply Line')
atross or along the premises of Licensor at or near the station of Toppenistr, County of
Yakima, State of Washington, Line Segment 0048, Mile Post 70.87, shown by bold line
upon the printNo. 60820, dated May 13,2014 marked "Exhibit A", attached hereto and
made a part hereof ("Premises").
Licensee shall not disturb any improvements of Licensor or Licensoy's existing lessees,
Licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such
improvements.
Licensee shall use the Premises solely for constnrction, maintenance, and use of an
Electic 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 hazqndous
substances, as defined by the Comprehensive Environmental Response, Compe,lrsation"
and Liability Act, as amended ('CERCLA") or petnoleum or oil as defined by applicable
Environmental Laws on the Premises.
In case of the eviction of Liceusee by anyone owning or claiming title to or any interest
in the Prernises, Licensor shall not be liable to refund Licensee any compensation paid
hereunder or for any damage Licensee sustains in connection therewith.
Any contractors or subcontractors performing work on the Electric Supply Line or
entering the Premises on behalf of Licensee, shall be deerned servants and agents of
Licensee for purposes of this License.
3.
4.
5.
Form 42I; Rcv. 04/2tili(Xi
Law Departnent Approved
TERM
ContractNo. 14-30O4
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6. This License shall conrmence on the Effective Date and shall continue for a period of
twenty-five (25) years, subject to prior termination as hereinafter described.
COMPENSATION
7. (a) Licensee shall pay Licensor, prior to the Effective Date, thc sum of THREE
TIIOUS$ID DOLLARS ($3,000.00) as compensation for the use of the
Prcmises.
(b) Licensee agrees to reimburse Licensor (within thirty (30) days after receip of
bills therefor) for all costs and expens€s incurred by Licensor in connection with
Licensee's use of the Prcmises or the presence, constrrction, maintenance, and use
of the Electric Supply Line, including but not limited to the firnishing of
Licensor's Flagman and any vehicle rental costs incurr€d. The cost of flagger
services provided by the Railway, when deemed necessary by the Railway's
representative, will be borne by the Licensee. The estirnated 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 rmemploynent
insurance, public liability and property damage instuance, health and welfare
benefits, transportation, meals, lodgtng and supervision. Negotiations for
Railway labor or collective brgaining 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 ttrirty (30) days after the date of invoice. In thc 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 strch unpaid sum from thirty
(30) days afrer its invoice date to the date of payment by Licensee at an annual
rate equal to (i) the great€r of (a) for the period January I through Jrme 30, the
prime rate last published n The Wall Street Jownal in the preceding December
plus two and one-half percent Q ll2o/o), and for the period July I through
December 31, the prime rate last published in The Wall Street Journal in the
precerling June plus two and one-half percent (2 ll2%), or O) twelve percent
(l2o/o), or (ii) the ma:<imum 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, ordels, covenants, restrictions, or decisions of any cotrt of competent
jurisdiction ("Legal Requirements') relating to the constnrstion, maintenance and
use of the Electric Supply Line and the use of the Prtmises.
Form 421; Rcv. 04/2605
Law Departnent Approved ContractNo. 14-3004
BF#
O) Prior to entering the Premises, Licansec shall and shall catrse its contrastor 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 lnternet
Website "htp://contractororientation.com". This training must be completed no
more than one yeaf, in advance of Licensee's entqr on the Premises.
DEFINITION OF COST AI\ID 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
wtro may obtain written perrrission or authority from Licensor:
(a) to maintain, renew, use, opef,ate, change, modi$ and relocate any existing pipe,
power, communication lines aad appurtenances and other facilities or stnrctures
of like character upon, over, under or acnoss the Premises;
(b) to construct, maintain, renew, use, operate, change, modiff and relocate any
tracks or additional facilities or structurcs upon, over, under or asoss the
Prernises; or
(c) to use the Premises in any manner as the Licensor in its sole discretion deems
appropriate, provided Licensor uses all commercially rcasonable efforts to avoid
material interference with the use of the Premises by Licensee for the purpose
specified in Section 3 above.
LICENSEE'S OPERATIONS
I l. (a) Licensee shall notiS Licensor's Roadmaster, Andy Vulgas *.602 West 3d Street,
Ellensburg, WA 98926, telephone [phone], at least five (5) business days
prior to constnrction of the Electric Supply Line and prior to entering the
Prerrises for any zubsequent 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 Eacks to the other.
12. (a) Licensee shall, at its sole cost and expense, constnrct 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
Form 421; Rw. 04126O5
Law Departrnent APProved ContractNo. 14-3004
BF#
(a)13.
electomagnetic induction, electrostatic induction, or from stray or other currents,
with the facilities of the Licensor or of any lessee or Licensee of the Liceirsor, or
in any manner interfere with the operation, maintenance, or use by the Licensor of
its right-of-way, tracls, stnrctures, 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 Licensot's
representative, to eliminate such interference. The cost of such protectivc devices
and their installations shall be bome solely by Licensec. If any of the inte,rference
covered by this paragraph shall be, in the judgement of the Licensor, of such
importance to the safety of the Licensor's operations as to require immediate
corrective action, Licensee, upon notice from the Licensor, shall eithcr, at the
Licensor's elestion, 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 measurcs as the Licensor may
deem advisable, until the protective devices and/or replaceinent equipment
required by this pamgraph have been installed put in operation" testo4 and found
to be satisfactory to correct the interference.
Under no conditions shall Licensee be permitrcd to conduct any tests,
investigations or any other activrty using mechanized equipment andl/or
machinery, or place or store any mechanized equipment tools or other materials,
within twenty-five (25) fe* 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 mpqner as not at any time to be a source of danger to or interference
with the existence or urrc of present or futre tacks, roadbed or property of
Licensor, 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 tuzardous
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 responsibiltty to ensur€ that Licensce's use of the Premises is safe.
Neither the exercise nor the failure by Licensor to exercise any rights grartcd in
this Section will alter the liability allocation provided by this License.
Licensee shall, at its sole cost and exp€,lrse, and subject to the supervision of
Licensor's Roadmaster,locate, constnrct and maintain the Electric Supply Line in
such a nranner 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,
rcadbed or property of Licensor, or the safe operation and activities of its railroad.
Further, the Electric Supply Line shall be construcrc4 installd and maintained in
confomrity 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 deerned part of the
Ihawings and Specifications). Licensor rnay direct one of its field engineers to
(b)
Form 421; Rcv. 04/26O5
Law Deparhnent Approved ContactNo. 14-3004
BF#
observe or inspect the constnrction and/or maintenance of the Electric Supply
Line at any time for compliance with the Drawings and Specifications. If ordered
at ary time to halt constuction or maintenance of the Electric Supply Line by
Licensoy'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 effiure that the Electric Supply Line is constnrcted in strict
accordance with the Drawings and Specifications and in a safe and workmanlike
manner in compliance with all terrrs hereof. Neither the exercise nor the failtre
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 shall promptly reimburse Licensor for all costs
and expenses of such work, upon receipt of an invoice for the same. Licensoy's
failure to perform any obligations of Licensee shall not alter the liability
allocation hereunder.
Licensee shall, at its sole cost and expense, remove all combustible material from around
wooden poles and will at all times keep the space arormd such poles free of such material,
and if removal of such sombustible 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.
During the constnrction and any subsequent maintenance perforrred 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 constnrction
of the Electric Supply Line shall be completed within one (l) year of the Effective Date.
Upon completion of the conshuction of the Electric Supply Line and after performing
any subsequent maintenance ther€on, Licensee shall, at Licensee's own cost and expeirse,
restore Licensor's premises to their former state as of the Effective Date of this License.
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 opiniorl 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 ef,[ect, 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 constnrction of new a Electic Supply
Line.
(a) Prior to Licensee conducting any boring work on or about any portion of the
Premises, Licensee shall explore the proposed locatiou for such work with hand
t4.
15.
16.
17.
Form 421; Rcv. 04/26/05
Law Departrnent Approved Contract No. 14-3004
BF#
tools to a depth of at least thrce (3) feet below the surface of the ground to
determine whether pipelines or other structurcs exist below the snrface, pleyi@
however, that in lieu of the foregoing, the Licensee shall have the right to use
suitable detection equipment or other generally accepted industry practice (e.g..
consulting with the Underground Services Association) to determine the existence
or location of pipelines and other substrface 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 Deparbnent has in its possession
concerni.g the existence and approximate location of Liceruor's underground
utilities and pipelines at or near the vicinity of the pnrposed Electric Supply Line.
Prior to conducting any such boring work, the Licensee will rcview 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.
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
detennine if granular material is present, and to preveut subsidence during the
installation process. If the investigation determines in Licensoy's reasonable
opinion that granular material is present Licensor may select a new location for
Licensee's use, or may require Licensee to fumish 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 uniting, Licensee shall, at
its sole cost and experurc, carry out the approved plan in accordance with all terms
thereofand hereof.
Any open hole, boring or well constnrcted on the Prernises 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 worlg all holes or borings
constructed on the Premises by Licensee shall be:
filled in to surrounding grotmd level with compacted bentonite gout; or
otherwise secured or retired in accordance with any applicable Legal
Requirernent. All excavated materials shall not remain on Licensoy's property for
more than ten (10) days and shall be properly disposed of by Licensee in
accordance with applicable Legal Requirernents.
Upon termination of this License, Licensee shall, at its sole cost and expense:
tremove all of its equipment from the Premises;
rEmove the Electric Supply Line at Licenso/s sole discetion;
(b)
18.
19.
(a)
(b)
(a)
(b)
Form 421; Rsv.(}M!6O5
Law Deparhnent Approved ContractNo. 14-3004
BF#
(c) report and rpstore any damage to the Prernises arising from, growing out of, or
connected with Licensee's us€ of the Premiscs;
(d) remedy any unsafe conditions on the Premises cneated or aggravaled by Licensee;
and
(e) leave the Premises in the condition which existed as of the Ef[ective Date of this
License.
20. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this License
at all times rryhile on the Prerrises.
LIABILITY
21. (a) TO TIIE FIJLLEST D(TENT PERIIIITTED BY LAW, LICENSEE SHALL
RELEASE,INDEMNIFT, DEtrEND AND HOLD HARMLESS LICENSORAI\D LICENSOR'S AFFILIATED COMPAIYIES, PARTNERS,
succEssoRs, AssrGNs, LEGAL REPRESEI{TATMS, OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AIID AGENTS
(coLLECrrvELY, "TNDEMNITEES") FO& rROM AND AGNNST
AIyy AND ALL CLAIMS, LIABILITTES, FIIYES, PENALTIES, COSTS,
DAMAGES, LOSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS,
JUDGMENTS AND EXPENSES (TNCLUDTNG, WTTITOUT LIMITATTON,couRT cosrs, ATToRIEYS' f,'EEs AI\ID cosTs or
II\TVESTIGATION, REMOVAL AI{D REMEDIATION AI{I)
GoVERNMENTAL OVERSTGTff COSTS) EIVIRONMENTAL OR
oTIIERWISE (COLLECTMLY "LIABTLITIES") OF AI\[Y NATIIRE,
KII\D OR DESCRIPTION OF AI\TY PERSON OR ENTITY DIRECTLYoR INDIRECTLY ARISING OUT OF, RESULTTNG FROM OR
RELATED TO (nY WHOLE OR rN PART):
(i) THIS LTCENSE, INCLUDING, WITHOLTI LNIITATION, ITS
EIIyIRONMENTAL PROyISTONS,
(ii) Ar\rY RIGITTS OR INTERESTS GRANTED PURSUAI\IT TO
Trrrs LICENSE,
(iii) LTCENSEE'S oCCLJPATION AND USE OF THE
PREIIITSES,
(iv) TIIE EIwIROI{MENTAL CONDITION AI{D STATUS OFTIIE PREIVIISES CAUSED BY OR CONTRIBUTED BY
LICENSEE, OR
7
Form 421; Rcv.0,lr2U05
Law Deparfinent Approved ContractNo. 14-3004
BF#
(b)
(v) AIYY ACT OR OMISSION OF LICENSEE OR LICENSEE'S
oFx'IcERSl, AGENTS, ITwTTEES, EMPLOYEES, OR
CONTRACTORS, OR AI\TYONE DIRECTLY OR IIIDIRECTLY
EMPLOYED BY ANY OF TIIEM, OR ANYONE TITEY CONTROL
oR EXERCTSE CONTROL OVER"
EVEN IF SUCH LIABILITIES ARISE TR.OM OR ARE ATTRIBUTED
TO, rN WHOLE OR IN PART, At\tY NEGLIGENCE OF AI\[Y
INDEMMTEE. TIIE ONLY LIABILITIES WITH RESPECT TO WHICH
LICENSEE'S OBLIGATION TO INDEMIUX"T TIIE IIYDEMNITEES
DOES NOT APPLY ARE LIABILITIES TO THE EXTENT
PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR
WILLFT'L MISCONDUCT OF AIY INDEMMTEE.
flIRTIIE& TO TIIE FULLEST EXTENT PERMITTED BY LAW
NOTWITHSTAI\IDING THE LIII{ITATION IN SECTION 2l(t),
LICENSEE SHALL NOW ATID FORE\MR WAryE AI\[Y AI\ID ALL
CLAIMS, REGARDLESS WIIETHER BASED ON TIIE STRICT
LIABTLTTY,I\IEGLTGENCE OR OTImRWISE, TIIAT RAILRON) IS AI\t
''OWNER'"''OPERATOR'" IIARRANGER'" OR I'TRANSPORTERI'
WITH RESPECT TO THE ELECTRIC SUPPLY LNTE FOR THE
PURPOSES OF CERCLA OR OTHER ENVIROITIMENTAL LAWS.
LICENSEE WILL INDEMMFT, DEFEND AND IIOLD TIIE
INDEMNITEES HARMLESS TROM ANY AI\D ALL SUCH CLAIMS
REGARDLESS OF THE IIEGLIGENCE OF TIIE II{DEMMTEES.
LICENSEE FI]RTIIER AGREES THAT THE USE OF THE PREIVtrSES
AS CONTEMPLI\TED BY TIIIS LICENSE SHALL NOT IN ANY WAY
SUBJECT LICENSOR TO CL{MS TIIAT LICENSOR IS OTITER THAN
A COMMON CARRIER TOR PT,RFOSES OF ENTVIRONMENTAL LAWS
AttD EXPRESSLY AGREES TO INDEMIUtr'T, DEFEND, AI\D HOLD
TIIE INDEMNITEES HARMLESS FOR ANY AIYD ALL SUCH CLAIMS.
IN NO EVENT SIIALL LICENSOR BE RESPONSIBLE FOR TIIE
EI\TVIRODIMENTAL CONDITION OF TIIE PREMISES.
TO Tm FTILLEST EXTEI{T PERMTTTED BY LAW, LICENSEE
FURTITER AGREES, REGARDLESS OF AlrY NEGLTGENCE OR
ALLEGED NEGLIGENCE OF AITY INDEMNITEE, TO INDEMMFT,
AND HOLD HARMLESS TIIE II\DEMNTTEES AGAINST AhtD ASSUME
THE DEF'ENSE O[' AI\TY LIABILITIES ASSERTED AGAINST OR
SUFTERED BY AI\TY INDEMMTEE UNDER OR RELATED TO TIM
TEDERAL EMPLOYERS' LIABILTTY ACT ("FELA") WImNEVER
EMPLOYEES OF LICENSEE OR ANY OF ITS AGENTS, nwTTEES, OR
CONTRACTORS CLAIM OR ALLEGE TIIAT TIIEY ARE EMPLOYEES
OF AIYY INDEMNITEE OR OTHERWISE. TIIIS INDEMNITY SHALL
ALSO EXTEND, ON TIIE SAME BASIS, TO FELA CLAIMS BASED ON
ACIUAL OR ALLEGED VIOLATIONS OF AIIY FEDERAL, STATE OR
(c)
Form 421; Rcv. Ofil6/05
22.
Law Departnent Approved Contract No. 14-3004
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LOCAL LAWS OR REGT]LATIONS, INCLUDING BUT NOT LIMITED
TO THE SATETY APPLIANCE ACT, THE BOILER INSPECTION ACT,
TIIE OCCT'PATIONAL IIEALTII AI\[D SAFETY ACT, TIIE RESOT'RCE
CoNSERVATION AND RECOVERY ACT, AltD AI\[Y SIMTLAR STATE
OR FEDERAL STATT]"TE.
(d) Upon written notice from Licensor, 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 wtrich 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'f@s,
investigators' fees, litigation and appeal expenses, settlemeot payments, and
amounts paid in satisfaction ofjudgments.
PERSIONAL PROPERTY WAIVER
ALL PERSONAL PROPERTY O[' LTCENSEE, INCLUDING, BUT NOT
LIMITED TO, FD(T['RES, EQTIIPMENT, OR RELATED MATERIALS UPON
TIIE PRENTISES WILL BE AT TIIE RISK OF LICENSEE ONLY, AND NO
INDEMMTEE WILL BE LIABLE FOR AITY DAMAGE TIIERETO OR TIMFT
TIIEREOF, WIIEIIIER OR NOT DUE IN WHOLE OR IN PART TO TIM
NEGLIGENCE OF AI\TY INDEMNITEE.
INST,RANCE
23. Licensee shall, at its sole cost and experule, procure and maintain during the life of this
Agreement the following insurance coverage:
A. Commercial General Liability lnsurance. This instrance 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 occrurence or equivalent and include coverage for,
but not limit€d to, the following:a Bodily Injury and Property Damage
a Personal Injury and Advertising Injury
o Fire legal liability
a Products and completed operations
This policy shall also contain the following endorsements, which shall be indicated on the
certifi cate of insurance:o It is agreed that any workers' compensation exclusion does not apply to
Licensor's payments related to the Federal Employers Liability Act or a
Licersor Wage Continuation Program or similar progams and any payments
made are deemed not to be either payments made or obligations assumed
under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
Form 421; Rev.0426rc5
Law Departrnent Approved ContractNo. 14-3004
BF#
o The definition of insured contact shall be amended to remove any exclusion
or other limitation for any work being done within 50 feet of railroad property.
o 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 occrurence, and include coverage for, but not
limited to the following:
t Bodily injury and property damagea Any and all vehicles owned, used orhired
C. Workers Compensation and Employers Liability Insurance. This insurance shall
include coverage for, but not limited to:
o Licensee's statutory liability under the worker's compensation laws of the
state(s) in which the work is to be performed. If optional rmder State law, the
insurance must cover all employees anyuxay.
o Employers' Liability (Part B) with limits of at least $500,000 each acciden!
$500,000 by disease policy limiq $S00,000 by disease each employee.
D. Railr,oad 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 druing the initial installation and/or constuction of the Electic
Supply Line. THE CONSTRUCTION Of'TIIE ELECTRIC SUPPLY Ln\m
SHALL BE COMPLETED WITIIIN ONE (l) YEAR OF TrIE ETFECTIyE
DATE. If firttrer maintenance of the Electic Supply Line is needed at a later
date, an additional Railroad Pmtective Liability Insurance Policy shall be
required. The policy shall be issued on a standard ISO form CG 00 35 l0 93 and
include the following:o Endorsed to include the Pollution Exclusion Amendment (ISO form CG 28 3l
10 e3)o Endorsed to include the Limited Seepage and Pollution Endorsement.
a Endorsed to include Evacuation Expense Coverage Endorsemelrt.
a No other endorsernents restricting coverage may be added.a The original policy must be provided to the Licensor prior to performing any
work or services rmder this Agreemant
In lieu of providing a Railroad Protective Liability Policn Licensee may participate in
Licensor's Blanket Railroad Protective Liability lnstrance Policy available to Licensee or
its contractor. The limits of coverage are the same as above. The cost is $
tr I elect to participate in Licensor's Blanket Policy;
CI I elect not to participate in Licensor's Blanket Policy.
10
Form 421; Rw. 0@6O5
Law Departnent Approved Contract No. 14-3004
BF#
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 cxists.
Licensee agrees to waive its right of recovery against Licensor for all claims and suits
against Licensor. In addition, its instrers, thrcugh 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 firther 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 tmder its care, custody or control.
Licensee's insurance policies through policy endorsernent must include wording which
states that the policy shall be primary and non-contributing with respect to any insurance
carried by Licensor. 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
Licensor and Iron Horse Dwelopment LLC as an additional insured with respect to work
performed under this agreement. Severability of interest and naming Licensor and Iron
Horse Development LLC as additional insureds shall be indicated on the certificate of
insurance.
Licensee is not allowed to self-insure without the prior unitten consent of Licensor. If
granted by Licensor, any deductible, self-insured retention or other financial
responsibilrty for claims shall be covered directly by Licensee in lieu of insurance. fuiy
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 retentior5 or other financial responsibility for claims.
Prior to commencing the Work, Licensee shall furnish to Licensor 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 audiVfolder number if available. The policy(ies) sball contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notifr Licensor in
witing 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 Licensor, a certified duplicate original of any required policy shall be
fumished.
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 VII or better, and
authorized to do business in the state(s) in which the service is to be provided.
ll Form 421; Rsv. O.tl26O5
Law Departrnent Approved ContractNo. 14-3004
BF#
Licensee WARRANTS tbat this License has been thoroughly reviewed by Licensee's
insurance agent(s/broke(s), who have been instructed by Licensee to procure the
insurance coverage requfued by this Agreement. Allocated Loss Expense shall be in
addition to all policy limits for coverages referenced above.
Not more frequently than once every five years, Licensor may reasonably modifr the
required insurance coverage to reflest 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 subcontacted by Licensee, Licensee shall require
that the subcontractor shall provide and maintain insurance coverages as set forth herein,
naming Licensor as an additional insure{ and shall require that tlre subcontractor shall
release, defend and indernnifr Licensor to the same extent aod under the same terms and
conditions as Licensee is required to release, defend and indemnift Licersor herein.
Failune 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-instrance) is obtained by
Licens€e 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, successorc, assigns and
affiliates of each.
EITYIROI\[MENTAL
24. (a) Licensee shall stictly comply with all federal, state and local environmental laws
and regulations in its use of the Premises, including, but not limited to, the
Resotrce Conservation and Recovery Act, as amendcd (RCRA), the Clean Water
Act, the Oil Pollution Act the Hazardous Materials Transportation Ac! CERCLA
(collectively referred to as the "Environmental Laws"). Licensee shall not
maintain a tneatnent, storage, transfer or disposal facility, or underground storage
tank, as defined by Environmental Laws on the Pr,ernises. 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
t2
Form 421; Rtr. 04/26O5
Law Deparfinelrt APProved
(c)
(d)
ContactNo. l4-30O4
BF#
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. Liceirsee also shall give
Licensor immdiaf€ notice of all measruts undertaken on behalf of Licensee to
investigatc, remediate, respond to or otherwise crre such release or violation.
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,
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.
Licensee shall promptly report to Licensor in writing any conditions or activities
upon the Prernises known to Licensee which create a risk of harm to persons,
property or the environment and shall take whaterrer action is necessary to prevent
rqiury to persons or property arising out of such conditions or activities; provided,
however, that Licensee's reporting to Licensor shall not rclieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly
respond to Licensor's request for infonnation regarding said conditioilr or
activities.
ALTERATIONS
25. Licensee may not make any alterations to the Premises or pennanently affix anything to
the Prerrises or any buildings or other stnrchres adjaceiil to the Premises without
Licensor's prior written consent.
NO WARRANTIES
26. LICENSOR'S DUTIES AIYD WARRANTIES ARE LIIVIITED TO THOSE
EXPRESSLY STATED IN TIIIS LICENSE AIYD SHALL NOT INCLUDE AITY
rMpLrED DUTIES OR IMPLIED WARRANTIES, NOW OR IN Trm X"UTITRE.
NO REPRESENTATIONS OR WARRAIYTIES TIA\M BEEN MADE BY
LICENSOR OTIIER THAN THOSE CONTNNED IN TIIIS LICENSE.
LICENSEE HEREBY WAIVES AI\[Y AI\D ALL WARRANIIES, EXPRESS OR
IMPLIED, WITH RESPECT TO TIIE PREMISES WHICH MAY EXIST BY
oPERATION OF LAW OR IN EQUITY, INCLUDING, WTTHOUT
LIIIIITATION, AIIY WARRANTY OF MERCIIANTABILITY, HABITABILITY
OR F'ITNESS FOR A PARTICT'LAR PI'RPOSE.
OTIIET ENJOYMENT
13
Form 421; Rw. 0426O5
Law Departrrent ApProved ContractNo. 14-3004
BF#
27. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR
T]NDERTAKE TO DEFEND LICENSEE IN TIIE PEACEABLE POSSESSION
OR USE THEREOF. NO COVENATTT OF QTIIET ENJOYMENT IS MADE.
DEFAULT
28. If default shall be made in any of the covenants or agreements of Licensee contained in
this docurnent, 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 zuch waiver in any way affect Licensor's abilrty 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.
LIENS AI\[D 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. Liccnsor is hercby authorized to post any notices or take any othcr action upon
or with rcspect 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 (collectiveln "Ta:res') levied or assessed upon the Improvements by any
govemmental or quasi-govemmental body or any Ta:res 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 Licensoy's Mutual Termination Letter Agreement then in
effect. Upon expiration of the time specified in such notice, this License and all rigbts of
Licensee shall absolutely cease.
31. If Licensee fails to surrender to Licensor the Premises, upon any temrination of this
License, all liabilities and obligations of Licensee herermder shall continue in effect nntil
the Premises are surrendered. Tennination shall not release Licensee from any liability or
obligation, whether of indernnity or otherwise, resulting from any events happening prior
to the date of termination.
ASSIGI\IMENT
t4
Form 421; Rev. 042d05
Law Deparbnent Approved
33.
ContractNo. 14-3004
BF#
32. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee,
nor any subsequent assignee, shall assign or tansfer this Licenso or any interest herein"
without the prior written consent and approval of Licensor, which may be wittrheld in
Licensor's sole discretion.
NOTICES
Any notice requircd or pennitted to be given hereunder by one party to the other shall be
in uniting 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 ttre custody of a nationally recognized ovemight delivery senrice, addressed to the
party to be notified at the address for such party sprcified below, or to such other address
as the party to be notified may designate by gving the other party no less than thirty (30)
days'advance written notice of such change in address.
lfto Licensor:BNSF Railway Company
2500 Lou Menk Dr. -AOB-3
Fort Worth TX 76131Athr: - Land Revenue lVlanagement
with a copy to: hon Horse Development LLC
c/o Iron Horse Real Estate
I I I University Parkway, Suite 200
Yakimq WA 98901
If to Licensee: PacifiCorp
825 NE Multnomah Street, Ste 1700
Portlan4 OR 97232
STIRVTVAL
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 atre tremoved and the Premises
are restored to its condition as of the Effective Date.
RECORDATION
35. It is understood and agreedthatthis License shall not be placed onpublic record
APPLICABLE LI\W
15
Forur 421; Rcv. 04/26/05
Law Departrnent APProved ContractNo. 14-3004
BF#
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 exteirt of such prohibition or invalidity, and this shall not
invalidate the remainder of such provision or any other provision of this Licemse.
INTEGRATION
38. This License is the full and complete agreement betrreen 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, lething 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 betwecn the Parties.
MISCELLANiEOUS
In the event that Licensee consists of two or more parties, all the covenants
agreements of Licensee herein contained shall be the joint and several covenants
agreements of such parties.
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 zubsequent breach thereof.
Iron Horse Development, LLC is acting as representative for BNSF Railway Company.
IN WITNESS WIIEREOF, this License has been duly executed, in duplicate, by the parties
hereto as of the day and year first above written.
BNSF RAILWAY COMPANTY
By:
39.
40.
and
and
l6
Form 421; Rerr. tll/Zl6/t)5
Law Departnrent Approved ContractNo. l+3004
BF#
PACIHCORP
825 NE Multnomah Street, Ste 1700
Portlan{ OR 97232
By:
Title:
L7
Form42l; Rsv. O4/:8 05
COORDINATE SYSTEM. V\A S IRACKING NO.
oG'NId,
uiUIG
o-
=
EXHIBIT IIAII
ATTACHED TO COTTITRACT BETVI/EEN
BNSF RAILWAY GOIIIPANY
AND
PACIFICORP
NOTE:
sEO'TOTALWRE
365' EXTSTING OVERHEAD WRE
;ilffi=*+'d*re
oVERHEAD UNDERGROUND
TypE ELEcrRtc TypE ELEcJRtc e _ oexores el(srrNc poLE
NUMBER T- NUMBERoFCoSSXH ffi f_rr*o*rNEwpoLEVoLTAGE 7.2t12.47Qt STZEOFCONDUTT -- N/ADISTANCEABOVE CO{DUTTMATERIALroPoFMlL LoSIIU9!NAf- IMLLTHICKNESS NoTE:
CLEARS RAtLrirAy LENGT}I ON R/W 6d UNDERGROUNO &OVERHEADWRECOI'PAI$/WRES BASE OF RAILroToPoFcoNDUrT LO-NGIIUP!! L
AT TOppENISH NorE: CASING ro BE JACKED oR DRY BoRED oNLY
COUNTY OF YAKIMA STATE OF WA AMM
DRAWING NO.60820