20140822Notice of Affiliate Transaction.pdf

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R. Jeff Richards' Vice President and General Counsel
201 S. Main Street, Suile 2400
$: $$alt Lake City, IIT 84111
801-220-4734 Office
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August 22,2014
VA OWRNIGHT DELIVERY
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)I, of an affiliate
interest transaction with BNSF Railway Company (BNSF) for a license allowing PacifiCorp to
realign certain distribution facilities located in Mabton, Washington. A copy of the License For
Electric Supply Line Across or Along Railway Property, Tracking #14-3011 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, 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 add a distribution pole to realign existing wires to accommodate a
road improvement project by the state of Washington in Mabton, Washington, which will require
a new crossing on BNSF's property. BNSF will not charge PacifiCorp for this license; however,
PacifiCorp will pay $1,600 for railroad protective liability insurance purchase from a non-
affiliate company 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.
I As of April 30,2O!4,MEHC was renamed Berkshire Hathaway Energy.
Idaho Public Utilities Commission
August 22,2014
Page2
Please do not hesitate to contact me if you have any questions.
Best Regards,
R. Jeff Richards
Vice President and General Counsel
PacifiCorp
Enclosures
Law Departme,lrt Approved Contract No. 14-3011
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LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, lrrespective of Voltagg Overhead or Underground)
hior Fcmrit i.lo. 231610 &t€d 2/1rl/1980.
THIS LICENSE (nlicense"), made as of the lst day of August 2014 ('Effective Date")
by and between BNSF RATLWAY COMPAFIY, a Delaware corporation (nliccnsorn) aod
PACIFICORP, an Oregon corporation ('Licensec").
NOW THEREFORE, in consideration of the mutual covenants oontained herein, the
parties agree to the following:
GENERAL
l.Liceruor hereby grants Licensee a non-exclusivo lioense, subject to all rights, interests,
and estates of third parties including without limitation" any leases, use rights,
eassrn€nts, liens or oths encrrrnbrances, and upon the terms and oonditions set forth
below, to constnrct, maintain, and use in srict 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 four
conductors, together with its sup'porting or containing sfiucfirres ('Elcctric Supply Line")
across or along the prernises of Licensor at or near the station of Mabton County of
Yakima, State of Washington, Line Segment 0048, Milc Post 5?.2O, sho$,n by bold line
upon thc print No. 61553, datd,72312014 marked 'Exhibil A", attachod hereto and
made a part hereof ("Prcmises").
Licensee shall not disturb any improvernents of Licensor or Licensor's existing less@s,
Licensees, easernent beneficiaries or lien holdcrs, if any, or interfere with the usc of such
improvements.
Lioensee shall trse the Premises solely for constnrction. maintenance, and use of an
Elec{ric Supply Line in accordance with the Drawings and Specifications. Liceirsee shall
not use the Premis€s for any other purpose. Licensee strall not use or store hazardous
subctances, as defined by the Comprehensive Environmental Responsg Compeirsation,
and Liability Act, as amendod (*CERCLA") or pcholeum or oil as defined by ap,plicablo
Environme,ntal Laws on the Prenriscs.
ln case of the eviction of Licensee by aoyone owning or claiming title to or any interest
in the Premises, Licensor shall not be liable to rcfund Licsrsee any compeosation paid
herermder or for any darnags Licensee sustains in connection therewith.
Any contraclors or subcontractors performing work on the Electric Supply Line or
entering the Premises on behalf of Licenseo, shall be deernod servants and agents of
Lice,lrsee for purposes of this Ucense.
3.
4.
5.
Fonn 421: RE!v. O4/26ros
Law Departrne,nt Approved
TERIVI
Contract No. 14-301I
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(a)7.
(b)
This License shall conrmence on the Effective Date and shall continue for a period of
twe,nty-five (25) years, subject to prior termination as hereinaftcr desc'rr"bed.
COMPENSATION
(c)
Licensee shall pay Licensor, prior to the Effective Date, the sum of ZERO
DOLLARS ($0.00) as compensation for the use of the Pre,mises.
Licensee agrces to reimburse Licensor (within thirty (30) days after receipt of
bills therefor) for all costs and expenses incurred by Licensor in conncction with
Licensee's use of the Prernises or the preseoce, constnrction, maintenance, and use
of the Electric Supply Line, including but not limited to the furnishing of
Licensor's Flagman and any vetricle rental oosts inctred. The cost of flagger
services provided by the Railway when deemed necessary by the Railway's
representative will be bome by the Licensce- The estimated cost for one (1)
flagger is $800.00 for an eight (8) hou basic day with time and one.half or double
fime for overtime, rest days and holidays. The estimated cost for each flagger
includes vacation allowance, paid holidays, Railway and unemployrreirt
insurance, public tiability and property damage insurancor health and welfare
benefiB, transportation, meals, lodging and supervisiou. Ncgotiations for
Railway labor or collective bargaining agreements and rate changes authorized by
appropriate Federal authorities may increase actual or estimated flagging rates.
The flagging rate in offect at the time of perfonnance by the Contractor hercunder
will be used to calculate the actual costs of flagging pursuant to this paragaph.
All invoices are due thirty (30) days after the date of invoicc. In the event that
Lice,nsee shall fail to pay any rnonies due to Licensor within thirfy (30) days after
the invoice date theo Licensee shall pay intcrest on suctr uapaid sum from thirty
(30) days after its invoice dato to ths date of paymort by Licensee at an annual
rate cqual to (i) the greater of (a) for the period January I through June 30, the
prime rate last published 'n The Wall Street Journal in the pmceding December
plus tno and one-half percent (2 ll2%), aod for the period July I through
Decemb€r 31, the prime rate last published in The Wall Street Journal in the
preceding June plus two and onehalf p€rcect (2 llT%'t, or (b) twelve percent
(12%), or (ii) the maximum rate permitted by law, whichever is less.
CoMPLIAIICE WITH LA\lvS
(a) Lice,usec shall observe and comply with any and all laws, statutes, regulations,
ordinances, ordetrs, covenants, restrictions, or decisions of any cotrrt of competent
jurisdiction ("tcgal Requirements") relating to the construction, maintenance and
use of the Electric Supply Line and the use of the Premises.
(b) Prior to entering the Prernises, Licensee shall and shall cause its contractor to
Form42l: R31/.0rU26/O5
Law Departrnent ApProved Contraot No. Itl-301I
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comply with all Licensor's applicable safety rules and regulations. Prior to
commancing any work on the Prcmises, Licensee shall complete and shall require
its contractor to complete the safety-training program at the following Intemret
Website'http://contractororientation.com". This training must be completed no
more than one year in advance of Ucensee's emEy on the Premises.
DENNTTION OF COST A}ID EXPENSE
For the purpose of this Licerrse, "cogttor "costst' "expensd'or "expens6" includes, but is
not limited to, ach,ral labor and matcrial costs including all assignable additives, and
material and supply costs at current value where used-
RIGHT OF LICENSOR TO USE
Licensor excepts and reserves the right, to be excrcised by Licensor and any other panies
who may obtain written pemtission or authorip from Licensor:
(a) to maintain, ren€w, usq operate, change, modi$ and relocate any existing pipe,
powtr, communication lines and appurtenances and other fasilities or stnrctures
of like charast€r uporL overr under or acrcss the Pre,mises;
to constnxct, maintain, nEnew, use, opcrate, changg modify aud relocatc any
tracks or additional facilities or strtrctwes upou, over, trnder or across the
Premises; or
(c) to use the Premises in any manner as the Licensor in its sole dissretion decms
appropriate, provided Licensor uses all commercially reasonable efforts to avoid
material interference with the use of the Prerriscs by License for the purposc
specified in Section 3 above.
LICENSER'S OPENATIONS
10.
G)
(a)I l.Licensee shall notifr Liceruo/s Roadmaster, Andy Vulgas at602 West 3d Steet"
Ellensburg WA 98926, telephone [phone], at least five (5) business days
prior to constnrction of the Electric Srryply Line and prior to entering the
Premises for any subsoquent maintenance thereon.
In performing the work desqibcd in Section 3, Licensee shall use only public
roadways to cross from one side of Licensot's hacks to the other.
Lice,nsee shall, at its sole cost and expeose, constnrct and at all times maintain the
Electric Supply Line in accordance with the National Electric Code.
If the operation or maintenance of said Elestic Supply Line shall at any time
cause interf€rerce, including but not limitd to physical interferencc from
electnomagnetic induction, electrostatic induction, or from stray or other currents,
t2.
(b)
(a)
(b)
Form 421 : Rc\,. 0iEl2BrOF
Law Departnent Approved Conhact No. 14-301I
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with the facilities of the Licsnsor or of any lessee or Ucensee of the Licensor, or
in any rnanner interfere with the operation, maintenance, or use by the Licensor of
its right-of-way, tracks, sErrrctrres, pole lines, signal and communication lines,
radio, or other equipn€ol devices, other property or appurtsnanccs thoroto,
Licensee agrees immediately to make such changes in its Elecfic Supply Line
and furnish such protective devices and/or replacernent equipment to Licensor and
its lessees or Licensees as shall be necossary, in the judgcment of the Licensor's
representative, to eliminate such interfercoce. The cost of such protective devices
and their installations shall be borne solely by Licensee. If any of the interference
covered by this paragraph shall be, in the judgement of the Licensor, of such
importance to the safety of the Licensor's operations as to require immediatE
correstive action, Licensee, upon notice from the Licensor, shall cither, at the
Licenso/s election, cease using said Electric Supply Line for Eny prrrpose
whatsoev€r and remove sarle, or reduce the voltage or load on said Electic
Supply Line, or take such other interim protective measures as the Lioensor may
deem advisablq until the protective devices and/or replacement equipment
requird by this paragaph have been installed, put in operatiorl tested, and found
to be satisfactory to correct the interference.
Under no conditions shall Licensee be permitted to conduct ary tests,
investigations or sny other activity using mechanized equipment and/or
machinery, or place or store any mechanized equipment, tools or othcr materials,
within twenty-five (25) feet of the centerline of any railroad track on thc Premises
unless Licensee has obtained prior writtan approval from Licsnsor. Licensec
shall, at its sole cost and expense, perfonn all activities on and about the Premises
in such a mann€r as not at any time to be a source of danger to or interference
with the existence or use of present or future tracks, roadbed or property of
Licensor, or the safe operation and activitics of Licensor. If ordered to cease
using the Prernises at any time by Licensor's personnel due to any hnzardous
condition, Licensee shall immediately do so. Notwithstanding the foregoing right
of Licensor, the parties agrae that Licensor has no duty or obligation to monitor
Licensee's use ofthe Prernises to det€rmine the safe nature thereof, it being solely
Licensee's responsibility to ensure that Licensee's use of the Premiscs is safe.
Neither the exercise nor the failure by Licensor to exercise any rigfrts granted in
this Section will alter the liability allocation provided by this License.
Licensee shall, at its sole cost and cxpense, and zubject to the supervision of
Licemsods Roadmaster, locate, construct and maintain the Electric Supply Line in
such a manner and of such material that it wiU not at any time be a source of
danger to or interfercncc with thc existence ur use of pesent or fuhfe backs,
roadbed or property of Lice,nsor, or the safe opaation and activities of its railroad
Further, the Electric Supply Line shall be constructed, installed and maintaincd in
conformity with the plans and specifications shown on the print attached hereto as
Exhibit A and made a part hereof (whictr" if present, are to be deemed part of the
Drawings and Specifications). Licensor may direct one of its field engineers to
observe or inspect the conshuction and/or maintenance of the Electric Supply
(a)13.
o)
4
Form 421; Rw. 0412605
Law Deparfinent Approved ConEactNo. l4.30ll
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Line at any time for compliance with the [hawings and Specifications. If ordercd
at any time to halt constnrction or maintenance of the Electric Supply Line by
Licensods personnel due to non-compliance with the same or any other hazardous
condition, Licensoe shall immediately do so. Notwithstanding the foregoing right
of Licensor, the parties agrae tlrat Uc€nsor haB no duty or obligation to obsenre or
inspect, or to halt n'ork on, the Electric Supply Line, it being solely Licensee's
responsibility to ensure that the Electric Suppty Line is constnlcted in strict
accordanoe with the Drawings and Specifications and in a safe and workmanlike
manner in compliance with all ternrs hseof. Neithcr the exercise nor the failure
by Licensor to exercise any riglrt granted by this Section will alter in any way the
liability allocation provided by this License. [f at any timc Licensee shall, in the
sole judgment of Licensor, fail to ploperly perform its obligatioru under this
Section, Liccnsor may, at its option and at Liceosee's solc expensg arrange for
the performance of such work as it deems nccessary for the safety of its
operations and astivities. Licensee shall prompfly rcimburse Lice,nsor for all costs
and expenses of such work, upon receipt of an invoice for the same. Lice,nsor's
failure to perform any obligations of Licensee shall not altcr the liability
allocation herermder.
Lioensee shall, at its sole cost and experrse, remove all oombustible material from around
wooden poles and will at dl times keep the spacc amund such poles tee of such material,
and if removal of such conrhustible materiel shall uot be attendod to with fifteen (15)
days after having been requested by Licensor to do so, Licensor shall have the rigfrt itself
to perform thc work and Licensee hereby agrees to reimburse Licensor for the €xpens€ so
incurred.
During the construction and any subscquent maintenance performed on Electric Supply
Line, Licansee shall perform such work in a manner to pr,eclude damage to the pr,opcrty
of Licemsor, and preclude interference with the operation of its railroad- The construc'tion
of the Electric Sup,ply Line shall be complaed within one (1) year of the Efuive Date.
tlpon completion of the constnrction of the ElecEic Supply Linc and after performing
any subsequent maintcnance thereoq Licensee shall, at Liceneec's own cost and expense,
restore Licensor's prenrises to their former statc as of the Effective Date of this License.
If at any time during the term of this Liceirse, Liceosor shall desire the rsc of its rail
corridor in such a Eranner as would, in Liccnsot's reasonable opinion, be interfcred with
by the Eleckic Supply Line, Licensoe shall, at its sole e,(pense, within thirty (30) days
after receiving written notice from Licensor to such effect, make such changes in the
Electric Supply Line as in 0re sole discretion of Licensor may be neccssary to avoid
interference with the proposed usc of Lice,nsor's rail curridor, including, without
limitation, the relocation of the oristing or the construction of new a Electic Supply
Line.
(a) Prior to Liccnsee conducting any boring work on or about any portion of the
Premise, Licensee shall cxplore the proposed location for such work with hand
tools to a depth of at least three (3) fea below the surface of the ground to
14.
15.
16.
17.
Form42l: Rcv. (Xf28/(lS
Law Department Approved Contract No. 14-301I
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determine whether pipelines or other sfiusfirres exist below the surface, orovidod,
however, that in lieu of the fmegoing the Lisensee shall have the right to use
suitable detestion equipment or other generally accepted indusfy practice (gg*
consulting with the Undergound Services Association) to daermine the existence
or location of pipelines and other subsurface structures prior to drilling or
excavating with mechanized equipment. Upon Licensee's written request, which
shall be made thirty (30) business days in advance of Ucensee's requested
constnrction of the Eleckic Supply Line Licensor will provide Lice'nsee any
information that Licensor's Eogineering Departnent has in is possession
concerning the existe,nce and approximate location of Licensor's underground
utilities and pipelines at or near the vicinity of the proposd Electric Srryply Line.
Prior to conducting any such boring work, the Licensee will rwiew all zuch
material- Licensor does not warrant the accurasy of information rolating to
subsurface conditions and Licensee's operations will be subject at all times to the
liability provisions he,rein.
For all bores greater than 2Ginch diameter and at a depth less than 10.0 feet
below bottom of rail, a soil investigation will need to be performed by ttre
Licensee and rwiewod by Licensor prior to constnrstion. This study is to
detennine if granular material is present, and to prwent subsidence during the
installation proccxts. If the investigrtion determines in Liceirsot's reasonable
opinion that granular material is present Licensor may solect a new location for
Licensee's use, or nnay roquire License to furnish for Licenso/s review and
approval, in its sole discretion a remedial plan to deal with thc granular material.
Oace Licensor has approved any such remedial plan in writing, Licensee shall, at
its sole cost and cxpense, carry out the approved plan in accordance with all terms
thereofand hereof.
Any opem hole, boring or well oonstructod on the Premises by Licensee shall be safely
covered and secued at all times when Licensee is not working in the actual vicinity
thereof- Following completion of that portion of thc work, all holes or borings
constructed on the Premises by Licensee shall be:
(a) filled in to surrounding grormd level with compactcd bentonite grout; or
(b) othenrise secwod or retired in accordance with any applicable Legal
Requireorent. All excavated materials shall not remain on Licensor's property for
morc than ten (10) days and shall be prop€rly disposed of by Licensee in
accordance with applicable Legal Requirernents.
Upon tennination of this Licensg Licensee shall, at its sole cost and exp€nse:
(a) remove all of its equipment from the Premises;
(b) remove the Electric Supply Line at Licensor's sole discretion;
(b)
18.
19.
Form 421 : RB\r. 04/28ro5
Law Departrnent Approved Contract No. 14-301 I
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(c) report and restore any damags to the Prernises arising from, growing out of, or
cormected with Licensec's use ofthe Premises;
(d) remedy any unsafe conditions on thc Prcmises created or aggravated by Licansee;
and
(e) leave the Premises in the condition whidr ocistd as of the Eflective Date of this
License.
20. Licensee's ou-site supenrision shall retair/maintain a fully-executed copy of this License
at all times while on the Prernises.
LIABIIiITY
2t. (e) TO TIIE FULLEST EXTENT PERMTTTEII BY LAW, LICENSEE SHALL
RELEASE, INDEMNItr"Y, DEFEND AND HOLD HARMLESS LICENSORAND LICENSOR'S AFtr'ILIATED COMPANIES, PARTNERS,
succEssoRs, AssIGNs, LEGAL REPRESENTATMS, OFtr'rCERS,
DTRECTORS, SHAREEOLDERS, EMPLOYEES AND AGENTS
(CoLLECTIYELY, "INDEMNITEES") rOR, FROM AIYD AGAINST
ANY AI\[D ALL CI,AIMS, LIABILITIES, FINES, PENALTTES, COSTS,
DAMAGES, [.OSSES, LIENS, CAUSES OF ACTION, SUITS, DEMANDS,
JUDGMENTS AND EXPENSES (INCLT,TDING, WITHOUI LIMITATTON,couRT cosTs, ATToRNEYS' FEES AND COSTS OF
INVESTTGATION, REMOVAL AnrD REMEDIATION ANI)
G,OVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR
oTHERWISE (COLLECTTVELY "LIABILITIES9 OF AI{Y NATURE,
KIND OR DESCRIPTION OF ANTY PERSON OR ENTITY DIRECTLYoR TNDIRECTLY ARISING OUT OF, RESULTTNG FROM OR
RELATED TO G{ WHOLE OR IN PART}:
(t) THrs LICENSE, INCLUDING, WITIIOUT LIMITATTON, ITS
ENVTRONMENTAL PROVISTONS,
(ii) AnY RIGHTS OR TNTERESTS GRANTED PURSUANT TO
THrS LTCENSq
(tii) LICENSEE'S OCCUPATION AlrD USE OF THE
PREMISES,
(iv) THE EIwIRONMENTAL CONDITION AltD STATUS OFTIIE PREIVIISES CAUSED BY OR CONTRIBUTED BY
LICENSEE, OR
(v) AI\[Y ACT OR OMISSION OF LICENSEE OR LICENSEE'S
OFF'ICERS, AGBNTS, INVITEES, EMPLOYEES, OR
Form 421: Rar. mr26r05
Law Departnent Approved Contract No. lG30l I
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CoNTRACTORS, OR ANYONE DIRECTLY OR. INDIRECTLY
EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL
oR EXERCTSE CONTROL OVE&
EVEN IT' SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED
TO, IN WHOLE OR IN PART, AlYy NEGLIGENCE OF ANy
INDEMNITEE. THE ONLY LIABILITIES WITE RESPECT TO WEICII
LICENSEE'S OBLIGATION TO INDEIV1NIFT THE INDEMNITEES
DOES NOT APPLY ARE LIABILITIES TO THE EXTENT
PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCO}IDUCT OF' AI{ INDEMNITEE.
FURTITER. TO TEE FI'LLEST E,XTENT PER]VIITTED BY LAW,
NOTWITIISTANDING THE LIMITATION IN SECTION 2l(a),
LICENSEE SHALL NOW AND T'OREVER WAIVE ANY AND ALL
CLAIMS, REGARDLESS WHETIIER BASED ON THE STRICT
LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILRON) IS AT{nowNBRilr '!oPERATOR"' 'TARRANGERT" OR TITRANSBORTER"
WITH RESPECT TO TIIE ELECTRIC SUPPLY LINE FOR TIIE
PURFOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS.
LICENSEE WILL INDEMII{Try, DEFEND A}ID IIOLD TIIE
INDEMNITEES HARMLESS IIROM AI\TY AI\[D ALL SUCH CLAIMS
REGARDLESS OF TEE NEGLIGENCE OF TIIE INDEMMTEES.
LICENSEE FT]RTHER AGREES THAT TEE USE OF THE PREMISES
AS CONTEMPLATED BY TIIIS LICENSE SHALL NOT IN AIIY WAY
SUB'ECT LICENSOR TO CLAIMS THAT LICENSOR IS OTIIER TEAN
A COMMON CARRIER FOR PURFOSES OF ENVIRONMENTAL LAWS
AltD EXPRESSLY AGREES TO INDEIIINItr"T, DEFEND, AIYD EOLD
THE INDEMNITEES IIARMLESS FOR AITIY AND ALL SUCH CLAIMS.
IN NO EVENT SEALL LICENSOR BE R"ESPONSIBLE FOR THE
ENVIRONMENTAL CONDITION OF THE PRE,MISES.
TO TTIE FULLEST EXTENIT PERMITTED BY LA% LICENSEE
FTIRTIIER AGREES, REGARDLESS OF AI\TY NEGLIGENCE OR
ALLEGED NEGLIGENCE OF AIIY INDEMFTITEE, TO INDEMNIFY,
A}ID HOLD IIARMLESS THE INDEMMTEES AGAINST AND ASSUME
THE DEFENSE OF A]\IY LIABILITIES ASSERTED AGAINST OR
SUFFERED BY ANY INDEMNITEE UITIDER OR RELATED TO TIIE
TEDERAL EMPLOYERS| LIABILITY ACT ("FELA") WIIENE\IER
EMPLOYEES OF LICENSEE OR AnW OF ITS AGENTS, INVITEES, OR
CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES
OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SIIALL
ALSO EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON
ACTUAL OR ALLEGED VIOLATIONS OF ANY FEDERAL, STATE OR
LOCAL LAWS OR REGULATIONS, INCLUDING BUT NOT LIMITED
TO TIIE SAFETY APPLIAI\ICE ACT, TEE BOILER INSPECTION ACT,
(b)
(c)
Form 421: Rev. 04f26r05
Law Deparfrnent App,roved Contract No. 14-301I
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THE OCCUPATIONAL IIEALTH AND SAFETY ACT, TEE RESOURCE
CoNSERVATION AI\D RECOVERY ACT, AI\ID ANY SIMTLAR STATE
OR FEDERAL STATUTE.
(d) Upon writteir notice fronr Licearsor, Liccnsee agrees to assume the defensc of any
lawsuit or other proceeding brouglrt against any lndannitce by any entity, relating
to any matter covered by this License for *'hich Licensee has an obligation to
assume liability for and/or save and hold harmless any lndemnitee. Licensee shall
pay all costs incident to such dcfense, including but not limited to, attorneys'fees,
investigators' fees, litigation and appeal expenses, s€ttlem€nt payrnents, and
amounts paid in satisfaction ofjudgments.
PERSONAL PROPERTY WAIVER
ALL PERSONAL PROPERTY OF LICnNSEE, INCLUIIING, Btrr NO|r
LIMITED TO, FD(TURES, EQUIPIIENT, OR RELATED MATERHLS UFON
THE PREMISES WILL BE AT TIIE RISK OF LICENSEE ONLY, AND NO
INDEMNITEE WILL BE LIABLE FOR AITY DAIUAGE THERETO OR THEFT
THEREOT, WHETIIER OR NOT DUE IN WIIOLE OR IN PART TO THE
NEGLIGENCE OF AIYY INDEMNITEE.
rNguRAlircE
Licensee shall, at its sole cost and oryense, procure and maintain drring the life of this
Agreonent the following insurancc @vcrage:
Commercial Ge,neral Liability lnsurance. This insurance shall contain broad form
conractual liability with a combined single limit of a minimum of $2,000,fi)0
each occurrence and an aggregate limit of at least $ 4,000,000. Coverage must be
purchased on a post 1998 ISO oocwrcnce or equivalcnt and include coverage for,
but not limited to, the following:
a Bodily tnjury and Property Damageo Personal Injury and Advertising Injury. Fire legal liabilityo Products and completed opeiations
This policy shall also contain the following emdorsements, which shdl b€ indicated on the
certificate of insurance:a It is agreod that any workett' compensation exclusion does not apply to
Licensor'g paynents related to the Federal Employers Liability Act or a
Licensor Wage Continuation Program or similar programs and any paymcuts
made are dcemed not to be either paymolts made or obligations assumed
under any Workers Compensatiorl disability benefts, or unemplolmreirt
compcnsation law or similar law.o The definitiou of insurod contract shall be amended to rernove any exclusion
or other limitation for any work bcing done within 50 feet of railroad prop€rty.
23.
9
Form 421: Rcv. 04/28/06
Law De,partnent Approved Contact No. 14-3011
BF#
o Any exclusions related to the explosion collapse and underground hazards
shall be rernoved.
No other endorsemcnts limiting coverage may be included on the policy.
Busincss Automobile Insurance. This insurance shall contain a combined single
limit of at least $1,000,000 per occurence, and include coverage for, but not
limited to the following:
o Bodily injury and property damage
o Any and all vehicles owxe{ used orhired
Workers Compesation and Employers Liability Insurance. This insurance shall
include soverage for, but not limited to:
Licenscc's statutory liability under the worker's comp€nsation laws of thc
stat{s) in which the work is to be performcd. If optional under State law, the
insuranse must covsr all ernployees anyway.
Enrployers' Liability (Part B) with limits of at least $500,000 each accident,
$500,000 by disease policy limit, $500,000 by disease each employee.
D. Railroad Protective Liability Insurance. This insurance shall name only the
Licensor as the Insured with coverage of at least $2,000,000 per occrurence and
S6,000,000 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 CONSTRUCUON OF TIIE ELECTRIC SUPPLY LINE
SHALL BE COMPLETED WTTETN ONE (r) YEAR OF TrrE EFTECTTVE
ITATE. If firther maintenance of the Eledric Snpply Line is needed at a later
date, an additional Railroad Protective Liability Insurance Policy shall be
required. The policy shall bc issued on a standard ISO form CG 00 35 l0 93 and
include the followinga Endorsed to include the Pollution Exclusion Amendment (lSO form CG 28 3l
l0 93)o Endorscd to include the Limittxl Seepage and Pollution Endorserrent.
a Endorsed to include Evacuation Expense Coverage Endorsernent.
I No other endorse,menB restricting ooverage may be addd.
t The original policy must be provided to the Licensor prior to performing any
work or services rmder this Agreernent
In lieu of providing a Railrcad Protective Liability Policy, Licensee may participate in
Liccnsor's Blanket Railroad Protective Liability Insuraoce Policy available to Licmsee or
its contractor. The limits of coverage are the same as above. The cost is $ _
o I elect to participate in Licensor's Blanka Poliry;
o I elect not to participate in Licensor's Blanket Poliry.
Ottrer Requirements:
B.
c.
l0
Form 421; Rev. 9412E65
Law Departrnent Approvcd Contrac't No. 14-3011
BF#
Where allowable by law, all policics (applyrng to coverag€ listed above) shall contain no
exclusion for punitive damages and certificates of insurance shall reflect that no
exclusion exists.
Licensee agrees to waivc its riiht of recovery against Licensor for all claims and suits
against Licensor. ln addition, its insurers, thrcuglr policy cndorsenren! waive their right
ofsubrogation against Licensor for all claims and suits. The certificate of insurance must
reflect waiver of subrogation endorseinent. Ucensec further waives its right of recovery,
and its insurers also waive their right of subrogation against Ucensor for loss of its
owned or leased prop€rty or propcrty under its carq ctstody or control.
Licensce's insurancc policics through policy e,ndorsernent must include wording which
states that the policy shall be primary and non-contributing with rcsp€st to aoy insurancc
carried by Licensor. The cortificate of insurance mwt reflect that the above wording is
included in evidensed policies.
All policy(ies) required above (excluding Workers Compensadon and if applicable,
Railroad Protective) shall include a swerability of interest endorsement and shall nsrne
Licensor and lron Horse Da'elopneirt, LLC as an additional insured with respect to work
performed under this agrcement. Severability of inte,rest and naming Licensor and hon
Horse Development" LLC as additional insureds shall be indicated on the certificate of
insurance.
Licensee is not allowed to self-insnre without ttre prior written consent of Licensor. If
granted by Licensor, any deductible, self-insured retention or other financial
responsibitrty for claims shall be covcred directly by Liccnsec in lieu of insurance. Any
and all Licensor liabilities that would otherwise, in accordance with the provisions of this
Agreernent be cover,ed by Licensee's insurance will be covered as if Liccnsee elected not
to include a deductible, selfiinsured retention, or othcr financial responsibility for claims.
Prior to commencing the Worlq Lice,nsee shatl furnish t'o Licensor an acceptable
certificat{s) of insurance including an original signature of the authmizsd representative
evidorcing the required covcragc, eirdorsements, and amendments and referencing the
conhact audit/folder number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notifr Licensor in
urriting at least 30 days prior to any cancellation, non-ranewal, 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 reputablc insurance company acceptable to
Lice'nsor 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 seirrice is to be provided.
Licensee WARRANTS that this Ucense has been thoroughly reviewed by Licensoe's
insurance agcnt(s)/broker(s), who have been instructed by Licensee to prccure the
l1
Form 421: Rev (H/26t05
Law Departrrent Approvod Contract No. 14-301I
BF#
insurance coverage required by this Agreerneirt. AllocatEd Loss Expeirse shall be in
addition to all policy limits for coverages refereoced above.
Not more frequently than once evcry five years, Licensor may reasonably modi$ the
required insurance coverage to reflect then-crrrrenl risk management practices in the
railroad industry and undemniting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Licensee, Licensee shall require
tbat the subcontractor shall provide and maintain insurance coverages as set forth herefuU
naming Licensor as an additional insure4 and shall roquire that the subcontractor shall
rclease, defend and indemnifr Licensor to the same extent and under the same terms and
conditions as Licensoe is required to relcasg defend and indeinnif, Licensor harein.
Failure to provide evidence as required by this sestion shall entitlg but not requirg
Licensor to terminate this Lice'nsc immediately. Acceptance of a certificate that does not
comply with this section shall not operate as a waiver of Licensee's obligations
hereunder.
The fast that insurance (including, without limitation, self-insurancc) is obtained by
Licensee shall not be deemcd to release or diminish the liability of Licensoe including
without lirnitation, liability undcr thc indemnity provisions of this License. Damages
recoverable by Licensor shall not be limited by thc amount of the required insurance
coverage.
For purposes of this section, Licensor shall mean "Burlington Norttrern Santa Fe
Corporation"o *BNSF Railway Company'' aud the subsidiaries, successoflr, assigns and
affiliates of each.
ENVIRONMENTAL
24. (a) Licensee shall stictly comply with all federal, state and local envimvrmental laws
and regulations in its use of the Pre,rrises, including" but not limited to, the
Resourcc Conservation and Recovery AcL as amcnded (RCRA), the Clean Water
Act the oil Pollution Act the Hazardous Materials Transportation Ac't, CERCLA
(collectively referred to as the "Environmental Laws"). Lice,nsee shall not
maintain a treatment, storage, transfer or disposal facility, or underground storage
tank, as defined by Environmental Laws on the Preinises. Liccnsee shall not
release or suffer the release of oil or hazardous substgnces, as dcfined by
Environmental Laws on or about the Premises.
O) Lice,nsee shall give Licensor immediate notice to Licensods Resource Operations
Cetrter at [phone] ofany release ofhazardous substanccs on or from the
Preurises, violation of Environmental [aws, or inspection or inquiry by
governmental authorities chargod with enforcing Environmental Laws with
respect to Licensee's usa of the Prrrnises- Licensee shall use the best efforts to
promptly respood to ury release on or from the Premises. Licensee also shall give
t2
Form42l: Rcv. 0426105
Law Departnent Approved ContrastNo. 14-3011
BF#
Licensor immediate notice of all measures wrdertakcn on behalf of Licensec to
investigate, remediate, respond to or otherwise cure such rclease or violation.
ln the eveirt that Licensor has notice from Liccnsee or otherwisc of a release or
violation of Environmcntal laws arising in any way with rcspcct to fte Electric
supply Line which occurred or may occur during the term of this License,
Licensor may require Liccnsec, at Licensee's sole risk and expcnsc! to take timely
measures to investigate, rernediatg respond to or othernrise cure such release or
violation affecting the Prenrises or Licensods riglrt-of-way.
Licensee shall promptly rrport to Liccnsor in writing any conditions or activities
upon the PrEmises known to Licensec which creatc a risk of harm to p€rsons,
property or thc environment and shall take whatever action is necessary to prerrent
injury to persons orproperty arising out of such conditions or activities; providcd,
however, that Licensee's rqnrting to Licensor shall not reliwe Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly
respond to Licensor's request for inforrration regarding said conditions or
activities.
ALTERATIONS
25. Licensee may not makc any alterations to the Premiscs or pcnnanently affix anything to
the Premiselr or any buildings or other structnres adjarent to the Prenrises without
Lice,nsor's prior written consent.
NO WARRANTIES
26, LICENSOR'S DUTIES AIID WARRANTIES ARE LIMITED TO THOSE
EXPRESSLY STATED IN TIIIS LICENSE AITID SHALL NOT INCLUDE ANY
IMPLIED DUTIES OR IIUPLTED WARRANTTES, NOW OR. IN TIIE FUTURE.
NO R.EPRESENTATIONS OR WARRANTIES NAVE BEEN MADE BY
LICENSOR OTHER THAN TEOSE CONTNNED IN TIIIS LICENSE.
LICENSEE HEREBY WAryES AT\[Y AND ALL WARRANTIES, EXPRESS OR
IMPLIED, WrrE RESPECT TO THE PREMISES WHICH MAy EXIST By
oPERATION OF LAW OR IN EQUITY, INCLUDING, WTITIOUT
LIIIilITATION, ANIY WARRANTY OF MERCIIANTABILITY, HABITABILITY
OR FITNESS FOR A PARTICULAR PURPOSE.
OUIET ENJOYMENT
27, LICENSOR DOES NOT WARRANT MS TITLE TO THE PROPERTY NOR
T'NDERTAKE TO DEFEND LICENSEE IN TEE PEACEABLE POSSESSION
OR USE TTIEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
(c)
(d)
t3
Form 421 : Rev. oat28t!5
Law Deparunent Approved
DEFAI.]LT
Contract No. 14-301I
BF#
28.If default shall be made in amy of the cove,lrants or agreemcnts of Licensee contained in
this document or in case of any assignment or transfer of this Lisense by operation of
law, Licensor may, at its option" terminate this License by senring five (5) days' notice in
writing upon Liccnsee. Any waiver by Licensor of any default or defaulh shall not
constitrte a waiver of thc right to terminate this License for any subsequemt default or
defaults, nor shall any such waiver in any way affcct Lioensor's ability to enforce any
Section of this Lice,nse. The reinedy set forth in this Segtion 28 shall be in addition to,
and not in limitation oq any other rernedies that Licensor may have at law or in equity.
LTENS AND CHARGES
29. Licensee shall promptly pay and dischargs any and all liens arising out of any
constnrction, alterations or repairs done, suffered or pcrnitted 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 lierrs to Prerrise; p'rovided, howevcr, that failure of Liceusor to take any
such action shall not relievo Lioensee of any obligation or liability under this Section 29
or any other Seaion of this License. Liccnsee shall pay when due any taxes, asses$n€nts
or other charges (collectivelp '-Taxes") levied or assessed upon the Improverrents by any
governmcntal or quasi-governmeotal body or any Taxes lcvicd or asscssed agairut
Liceosor or the Prernises that are attibutable io the Improvcrnents.
TERMINATION
This Ucense may be teminated by Licensor, at any time, by serving thirty (30) days'
written notice of ternrination upon License. This License may be tcrminatd by
Licensee upon execution of Liceruoy's Mutual Termination letter Agreement then in
effcct" Upon expiration of the time specified in such noticg this License and all rights of
Licemsee shall absolutely coase.
If Licensee fails to surrender to Liccnsor the Prsnises, upon any termination of this
ticense, all liabilities and obligations of Liccnsee hereundtr shall continue in effect until
thc Premiscs are surrendered. Termination shall not release Licensee from any liability or
obligation, whether of indcnmity or otherwise, resulting from any events happudng prior
to the date of terrrination.
ASSIGITIMENT
Neittrer Licorseg nor the heirs, legal representatives, successom, or assigns of Licensce.
nor aoy subsequent assignee, shall assign or trursfer this License or any interest herein,
without the prior written consent and appmval of Licensor, which may be withheld in
Licensor's sole discretion.
30.
31.
32.
t4
Form 421: Rcv. M/26/05
Law Depanment ApProved
NOTICES
lf to Licensor:
with a copyto:
If to Licensee:
Contract lro. Itl-301 I
BF#
33.Any notice requircd or permitted to be giveo hereuoder by one party to the other shall be
in writing and the same shall be givan and shall be deerred to have becn scnrcd and grvon
if (i) placed in the Unitd States mEil, ce,dfied, rcfirn receipt requestod, or (ii) deposited
into the custody of a nationally recognized ovc,ruight delivery servicg addresscd to the
party to be notificd at the address for such party spocified below, or to strch other address
as the party to be notified may designate by grving the othcr party uo less than thirty (30)
days'advance written notice of such change in address.
BNSF RailwayCompany
2500 tou Mcnk Dr. - AOB-3
Fott WortlU TX 76131
Attt -kndRevqueManagcmetrt
Iron Horse Development, LLC
c/o L:on Horse Real Estate
I I I University Parhray, Suite 200
Yakima" WA 98901
PacifiCorp
825 Multromatr Strect, Ste 1700
Portland, OR 97?32
SURVWAL
34. Neith€r termination nor expiration will release eithe,r party frorn any tiability or
obligation under this Licemg whettrer of indemnity or otherwise, rozulting from any acts,
omissions or wents happening prior to the date of tenrrinatio,n or expiration, or, if later,
the date when the Electric Supply Line and improvernents are ranoved and the Premiecs
are restored to its condition as of tho Effective Date.
RECORDATION
35. lt is rmderstood and agreed that this Uoense shall not be placed on public record.
APPLICABLE LAW
36. All questions mncerning the interpretation or application of provisions of this Liceose
shall bc decid€d acoording to the rubstarrtiw laws of thc state of Tcxas without rqgard to
confl icts of law prcvisions.
SEVERABILITY
37. To the maximum extent possible, each provision of this Uccnse shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of this
I5
Fonn 42 1: Rev. 0tU!16O5
Law Departmeirt Approved Contact No. l&301I
BF#
License shall be prohibited by, orheld to be invalid under, applicablc law, suctr provision
shall be ineffective solely to the exte,nt of such prohibition or invalidity, and this shall not
invalidate thc rcrnainder of such provision or any other provision of this Licose.
INTEGRATION
38. This Licsrse is the full and complae agrecrnent betrreen Licensor and Liccnsee with
respect to all matters rclating to Licensce's use of tlre Prsmiscs, and supersedes any and
all other agreements between the partics hereto relating to Licensee's use of the Premis€s.
Howwer, nothing hcrein is intended to tenninate any snnriving obligation of Licensee or
Licensee's obligation to defcnd and hold Liccnsor hamrless in any prior wdtten
agreonmt betwe€n the parties.
MISCELLANEOUS
39. In the ev€nt that Licensee consists of trno or moro parties, all thc covenants and
agreements of Licensee h€rein contained shall be the joint and sevcral covenants and
agreements of such parties.
40. The waiver by Licansor of the breaoh of any provision her€in by Licensec shall in no way
impair the right of Lic€nsor to cnforce that provision for any subcequent breach thereof.
kon Horse Developmenl LLC is acting as representative for BNSF Railway Company.
IN WITNESS WHEREOR this License hEs bceo duly orecutod, in duplicate, by the pafties
hereto as ofthe day and year first abovc written.
BNSF RAILWAY COMPANY
By:
PACIHCORP
By
Title:
l6
Form 421: f,ev 0tltil6/05
COOROINATE SYSTEM. WA S
EXHIBIT ''A''
ATTrcH ED TO CONTRACT BETV\JEEN
BNSF RAILWAY COMPANY
AND
I
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ilt
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SECTION:TOWNSHIP: 8N
RANGE: 22E
MERIDIAN: WLLM
PACIFICORP
SCALE: 1 lN.= 150 FT.NORTHWEST DIV.
YAKIMA VAI I trY SUBDIV.L.S. 0048
DATE 0712312014
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DESCRIPTION OF WRES OVER TRACK
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TYPE NUMBER
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COUNTY OF YAKIMA
DISTAI,ICE ABOVEVOLTAGE TOP OF RAIL
12.5 KV 26.5'MrN
STATE OF WA
CLEARS RAILWAY
COMPANYSWRES
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