20150423Notice of Affiliate Transaction.pdf

801-2204734 Office
801-2204058 Fqx
j eff , ri c h a r d@1t ac iJi c o rp. co m
April23,2015
VIA OVERNIGHT 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 PacifiCory by MidAmerican Energy Holdings Company (now "Berkshire
Hathaway Energy Company" or "BFIE"), notice of affiliated interest transactions with BNSF
Railway Company ("BNSF") for three licenses allowing PacifiCorp install certain electric
facilities along or across BNSF property in Merrill, Oregon. A verified copy of the License For
Electric Supply Line Across or Along Railway Property, Tracking #15-51861 is included with
this Notice as Attachment A. A verified copy of the License For Electric Supply Line Across or
Along Railway Property, Tracking #15-51862 is included with this Notice as Attachment B. A
verified copy of the License For Electric Supply Line Across or Along Railway Property,
Tracking #15-51863 is included with this Notice as Attachment C.
PacifiCorp is a wholly-owned indirect subsidiary of Berkshire Hathaway Energy
Company. BHE is a subsidiary of Berkshire Hathaway, Inc. BNSF is also a subsidiary of
Berkshire Hathaway, Inc. Therefore, Berkshire Hathaway, Inc.'s ownership interest in BHE and
BNSF may create an affiliated interest relationship between the Company and BNSF in some
Pacifi Corp jurisdictions.
In Klamath County, Oregon, the Company is reconfiguring certain portions of its system
to extend neutral wire, which will require crossing BNSF's property in three places. BNSF uses
standardized pricing for these types of licenses. PacifiCorp will pay $3500 per license for a total
of $10,500. Additionally, PacifiCorp will pay $460 per license, for a total of $1380, for railroad
protective liability insurance purchase from a non-affiliate company. Further, the Company paid
$750 per license, for a total of $2,250, in processing fees.
;' :' -
YP|hS,.I"HIF_9RP ii, i ii p, a r n,{,0,,, fiii#Wo,::;:!,r;**,
j, :; saltlakeci$,ur 84111
Idaho Public Utilities Commission
April23,2015
Page2
Obtaining the licenses is in the public interest because it allows the Company to install
and maintain facilities necessary to provide electric service and to meet its obligation to provide
safe and reliable electric service. Without the licenses, 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 the licenses to the Company.
Please do not hesitate to contact me if you have any questions.
Sincerely,
R. JeffRichards
Vice President and General Counsel
PacifiCorp
Enclosures
foxrs LrNc
LlSlLtu.
February 9, 2015
PaciftCorp
The rpcclficetiondplant you ptovHcd m.y diftr
rcqulrcmcnte. Therrtorc, prlor to your lnetdlation, plearc
rpeciflcatlonc n.eea3ary for your lnstallation.
Jones Larg LaSale Anericas, lnc.
4300 Amon Carter Blvd, Sulte 100
FortWorth, Texas 76155
tel +1 817-23&26fr)
fax +1 817 306€266
1s-51861
Itom BilSF'r mlnlmum rpcciflcetbnrwiw thc Exhibit A to determinc the
Attention: Mr. Scott Mease
825 N Mulhomah Street
Suite 1700
Poriland, OR 97232
Dear Mr. ilease:
Attached please find a copy d the requested contract for execulion by an ofiicial authorized to execute contract
agreements on behalf of your company. Please print tuo (2) copies execute and refrtm both coples wilh
orlsinal giqnaturc for completion on part of BNSF Railway Company fBNSF') to this office, along wifrr the
following requiremenb :
o A cfieck in the amqrnt of $3500.00 payable to BNSF Railuay Company wtrich covers the contrmt
fee(s).
Please note the agneements cannot be executed by BNSF without an approved insurance cortificate. lf here
are any issues wlth your insuranca, you will be contacted by a member of the Risk Management team of BNSF
Railuay.
1. A Certiftcate of lnsuranco as required in the agreement.
2. A reparate pollcy for Railroad Prcteotve Llability lnsurance as requircd in the agreement (ORIGINAL
POUCY ilUST BE PROVIDED). BNSF Ralway Company wlll be the only insured party; OR;
ln llcu of prcvldlng a.eparate pollcyfor Rallrod Protectlvc Liability lnsuranc., you may participate in the
BNSF's Railrod Prctective Pollcy by checking the appropriate box in the contract and including an additional
$,16:0.00 witr your clreck.
PLEASE ADVISE IF THIS PROJEGT IS ARRA FUNDED.
Acceptance and deposit of any check by BNSF does not oonstihrte an agr€sment bettrpen BNSF and Licensee
for the requested license. Bi,lSF shall not be oblpated b hold the check in a sepmte fund, but may commlngle
the funde with other funds of BNSF, and ln no event shall BNSF be responsible for intersst on said funds.
The endosed permit is not a tr'nding agreement and shall beoome binding only ufiren, and if, it is o<ectrted by
you and fully approved and executed by BNSF Railway Company. Upon completion on behalf of BNSF, one
fully exeofied counterparl will be retumed for your records.
Please be informed that if contracts, fees, and insurance are not retumed within slxty (60) days, the processing
fee will increase to $1 500.00.
Sincerely,
datnna Malazar
l(atrina Salazar
Associato Manager Permits
Attachment
Tracklng #1$61E61
or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") b made to be effective
-
N15,
(the Eflecflve Dde') by and bdvveen BNSF RAILWAY COillPAl{Y, a Delawara oorporation ('Licensof) and
PACIFICORP, an Oregon corporatlon ('Llcenecc").
ln consideration of the mufual covenants contained herein, the parties agree to the following:
GENERAL
1. Grant of License. Licensor hereby gtants Lbensee a nonexdusive license, subject to dl rights, lnterests,
and estiates of third parties, lnduding, wlthout llmltatlon, any Ieases, use righB, easomonts, lbns, or other
encumbranoes, and upon the terms and conditions sot forth below, to construct and maintain, in stric't
acoodance with the drawlngs and specilications approved by Licensor as part of Licensee's applicationproc$s (the 'Drawingr and Spectficatlons'), an electric supply line containing a maximum of four (4)
@nductors, together with its supportlng or contiaining structures (collectively, the 'Elec'trlc Supply Line"),
across or along Licensor's rail conidor at or near the station of Menlll, County of Klamath, State d Oregon,
Line Segment 0055, Mile Post 10.54, as shown on the attachsd Drawing No. 6294O dEted January 27, ?o15,
attached hereto as EIIlbitjA", and inoorporated hereln by r*rence (he 'Pncmlsee").
2. Term. Thb License shall commence on the Efiectlve Date and shall continue for a period of trventy-five (25)
years, subject to prior termindon m hereinafter described.
3. Exlstino lmorovements. License€ shall not disturb any improvements of Licensor or Lbenso/s existing
lesseeg, licenae€s, easement benediciaries or lien holders, if any, or interfere with the use, repair,
maintenanca or replacement of such improvemenE.
4. Use of the Prembes. Ucensee shall use the Prcmises solely for constructbn, maintenanco, and use of the
Electsic Supply Line in accotdance with the Drawings and Specifications. Licensee shall not use the
Premis€s for any other purpose.
5. Alterations. Except as set forth in this License, Licensoe may not make any alterations to the Premises or
permanently affix anything to the Prcmbes or any bulldings or other stuc{rres adjacent to the Premises
without Licensor's prior lritten consent.
COTPENSATION
6. Llcens€ Fse. Licensee shal! pay Licensor, prior to the Effectlve Date, the sum of Three Thousand Flve
Hundred and No/100 Dollars ($3500) as compensation br the use of the Premises.
7. Costs and Exoensos.
7,1 For the purposo of this Lioense, "cosl'or "@sts' and "expense' or "expenses" includes, but is not
limited to, acfual Iabor and material costs including all assignable additives, and material and supply
costs at current value where used.
7.2 Licensee agrees to reimburce Licensor (pursuant to the terms of Scctlon 8 belorrr) for all costs and
expenses inqrned by Lioensor in connection with Licensee's use of the Premises or the presenoe,
consbuction and malntenance of the Elec{ric Supply Llne, including but not timlted to the fumishing
of Licensor's flaggprs and any vehide rental cosb incuned. Licensee shal! bear tho cost of flagger
servioes and other saf€ty measures provided by Licensor, when deemed necessary by Licenso/s
representatlve. Flagging coots shall include, but not be limited to, the folloring: pay for at leaet an
eight (8) hour baslc day wlth tlme and onehalf or double time for overtime, rest days and holidays
(as applicable); vacation allowanoe; paid holidays (as applicable); railnay and unemployment
insurance; public liability and property damage insurance; hmlth and nuelfare benefits; transportation;
meals; lodging and supervision. Negotiations for railway labor or collective bargaining agreements
and rate changes authorlzed by appropriate Federal authoritiee may lncrease flagging rates.
Flagging rates in effect at the time of performance by the flaggers will be used to calculate the
flagging cooB pursuant to this $ec{ion 7.
(EbcHc Llght, Power Supply, lrespective of Voltage,
-1.Foffn 421i Re\r. 201/rc801
Tracklng #1ffil861
8. Pavment Terms. All invoices are due thirty (30) days after the date of invclice. 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 pnime rate last
published in The Wall Steet Joumal in the precedlng December plus two and one-half peroent (2-11?/ol, or
(ii) the maximum rate permitted by law.
LICENSOR'S RESERVED RIGHTS
s.Reserved Rhhts of Use. Licensor excepts and reserues the right to be exercised by Licensor and any other
o may obtain vrritten permission or authorityfrom Licensor:
10.
9.1 to maintiain, u6e, operate, repair, repla@, modify and relocale any utility, power or communication
pipe/lines/cables and appurtenances (other than the Electric Supply [ine) and other fucilities or
structures of like character upon, ovor, under or across the Premises existing as of the Effective
Date;
9.2 to construct, maintain, reneq uso, operate, change, modify and relocate any lracks or additional
facilitles, struc{ures and related appurtenances upon, over, under or across the Premisqs; or
9.3 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 wlth the use of the
Prembes by Licensee for the purpose specified in Sec'tlon 4 above.
Rbht to Reouire Relocation. lf at any time during the term of this Licanse, Licensor desires the use of its rail
conidor in such a manner as vrould, in Licenso/s reasonable opinlon, be interfered with by the Elec'tric
Supp{y Line, Licensee shall, at its sole expense, within thirty (30) days after receiving writlen notice frorn
Licensor to such efiec{, make such changes in the Elec{ric Supply Line as in the sole discretion of Licensor
may be n€oassary to avoid interference with the proposed use of Licensor's rail conidor, including, without
limitation, the relocatbn of the Elecfic Supply Line, or the conetrucffon of a new electric line to replace the
Elecfic Supply Line. Notwithstanding the foregoing, Lic€nses agross to make all emergency changes and
minor adjustments, as determined by Licensor in i6 sole discretion, to the Electric Supply Line promp$y upon
Licenso/s request.
LICENSEE'S OPERATIONS
'11. Construction and Maintenance of the Electric Suoolv Line.
11.1 Licensee shall notify Licenso!'s Division Engineer, Mike Schram at 1313 W 1lth Street, Vancouver,
WA 98660, telephone (360) 4f 84415, or email [e-mail], at least ten (10) business
dayt prior to installation of the Electric Supply Line and prior to entering the Premises for any
subsequent maintenance lhereon. ln the event of emergency, Licensee shall notify Licensor of
Litrensee's entry onto the Premises at the telephone numb€r above as soon as practicable and shall
prompUy thereafter follow up with mitten notlce of such entry.
11.2 Licensee's on-site supervisors shall retain/maintain a fully exmuted copy of this License at all times
while on the Premises.
11.3 While on the Premlses, Licensoe shall use only publb roadways to cross from one side of Licensor's
trad<s to the other.
11.4 Any contractors or subconfactors perfonning work on the ElecEic Supply Line or entering the
Premlses on behalf of Licensee shall be deemed servants and agenB of Licensee for purposes of
this License.
11.5 Under no conditions shall Licensee be permitted to conduct any tests, lnvestlgatlons or any other
activity using mechanized equlpment and/or machinery, or place or stor€ 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 €xpens€, perform all activities on and about the Premises in such a mannor as
not at any time to endanger or interfere with (i) the oxistence or use of present or future tracks,
roadbeds, or property of Licensor, (ii) the safe operation and activities of Lirnsor or existing third
parties, or (iii) the rights or interests of third parties. !f ordered to cease using the Premises at any
time by Licenso/s personnel due to any hazardous condition, Li@nsee shall immediately do so.
Notwlthstanding the foregoing right of Li@nsor, the parties agree that Licensor has no duty or
obligation to monitor LicehseE s use of the Premises to determine the safe nature thereof, it being
solely Ucensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the
Form 421; Rev. 20140801
Tracking #15S1861
exercbe nor the fiailure by Uoensor to exercise any righb granted in this S€ction wfll alter fte liability
allocation provided by this License.
11.6 Licensee shall, at lts sole cost and expsrrse, co4struct and maintain the Electric Sgpply Line in s-uch
a manner and of such material that the Electic Supply Line will not at any time endanger or interferea manner and of such material that the Electic Supply Line will not
with (i) the odstence or use of present or futrre tracks, roadbeds, or
operaiion and activities of licenqgr or exbtlrg tllrd parties, or (li
p tracks, roadbeds, or property of Licensor, (il) the safe
rB third parties, or (lil) the rights or interests of ttrid
,olv Line shall be comoleted uiithin one (1) vear of ihepilrtles. The consEuctlon of Ute Electrit: Supply Line shall be completed wlthin one (1) year of the
Effective Date, and any subgequent maintenance shal! be completed within one (1) year of initiation.
Within fifteen (15) days after comoletion of the construction of the Eleclric Suooly Line or theWithin fifteen (15) days after completion of the construc{iori of the EIecOic Supply Line or the
performance of any subsequent malntenance theroon, Licensee shall, at Llcensee's orn coEt and
exo6nse. restore the Premises to substantiallv their state as of the Effec'tive Date. ur{ess offienrisebxpense, restor€ tlie Premises to substantially their stato as d the
approved in advance by Licensor.in ur{ing. On or before expiraiion
11.7 Lbensor may direc{ one or more of ib field engiruers to ohsenre or inspect the conshrctkm andlor
maintenancs of the Electric Supply Llne at any tlme for compllanc€ with the Drawings and
Speclflcatlons and Legal Reqgiements (defined belout). lf ordered at any time to halt consfuclion or
maintenance of the Elecbic Supply Line by Licenso/s personnel due to norrcompliance with the
Drawings and Specificationg or any other hazardous oondition, Licensee shall immedlately do so.
Notwlth-standlng the foregolng right of Llcensor, the parfies agree that Licensor has no duty or
obllgation to observe or inspect or to halt nork qn, Qe Elecfric Supply Line, it belng solely
Licensee's reeponsibility to ensure that the Electic Supply Line is corstructed and maintained in
strict accordan'ce with the Drarings and SpecificationE and ln a s#e and workmar{lke manner ln
compliance with all terms hereof. Neither the exercise of, nor the failure by Llcensor to exercise, qny
right granted by thb Section will alter in any way the lae$ility allocaUon provlded by this License. lf at
any time Licensee shall, in the sole judgment of Liconsor, fail to properly perform its obligations
under this Scc{ion 11, Licetror may, at fts option and at Licensee'e sole expense, a,Tange for the
performance of such work as il deems necssary for the safety of its operations and actiMties.
Licensee shall promptly reimburse Licensor for all costs and expenses of such work, purcuant to the
terms of Sec{ion E. Licensor's failure to perform any oHigatione of Licensee shall not alter the
liability allocatlon hereunder.
11.8 Licensee shall, at ib sole cqst ard €xpense, oonstruct and at all times maintain the Electrb Supply
Line in aocordance with the National Electic Safety Code.
11.9 lf the operation or maintenanoe of the Electric &rpply Line at any time causes interfercnce, induding
but not limited to phyaical interference from elec&omagnetic induc*ion, eles{nostratic induc{ion, or frcm
stray or other currenb,.lvrti the facilities of Li:ersor or of any leggee or lioensee of Lloensor, or.ln
any manner interfere with the operatlon, maintenanoe, or use by Licensor of its right-of+vay, tracks,
slructu,Es, pole lines, signal and communication llnes, radio, or other equipment, devlces, offrerproperty or'appurtenanoes therob, Licensee ag.Ees immediately to make such changes in the
El€cbic Supply Line and furnish such protective devlces and/or replacement equlpment to Lloensor
and its lessees or lioensees as shdl be necessary, ln the judgmeni of Liceneo/s rep€sentative, to
eliminate such interference. The oost of snch protective devices and their installations shall be bome
solely by Liosnsee. lf any of the interference covered by this Sec'tlon {1.9 shall be, in the judgment
of Licensor, of euch importance to the safety of Llcenso/s operations as to requit€ immediate
conective action, Licensee, upon notice from Licensor, shall oither, at Licensor's election, cease
using the Ebcfic Supply Line for any purpose whatsoever and remove same, or reduce the voltage
or load on the Electrb Supply Line, or take such other interim protec{ive meaaunos as Licensor may
deern advisable, until the protectlve devies and/or replacement equlpment required by this Sectlon
11.9 have been installed, put in operation, tested, and found to be satisfactory to conect the
interferenoe.
11.10 Llcensee shall, al lts sole cost and expense, remove allcombustible materialfrom around urcoden
poles on the Premises, if any, and will at all times keep the spaoe an und such poles free of such
materlal, and if remova! of such combustible material shall not be attended to with ffieen (15) daW
after having been requested by Lkrnsor to do so, Licensor shal! have the right ltself to perform the
work and Licensee hereby agees to r€imburse Licensor for the expense so irrcurred.
Boring and Excavation.
Date, ur{ess offienrise
miUng. On or before expiraton or termination of this License for
ahy reason, Licensee-shall, at its soh-cost and expense, surrender the Premises to Llcensor
ouisuant to the terms and condlflons set forth in $ccffon 2t[ hereof.puEuant
Prlor to Llcensee conducting any boring, excavation, or similar work on or about any poillon of the
Premiseg, Licensee shall explore the propooed location for sucfr urcrk with hand tools to a depth of at
least thrce (3) fe€t belor the surfaoe of the grourd to determine whether pipelines or other
12.
12.1
-3-Form 421: Ror.201,()8()1
Tracking #15-51861
strucltur* odst below the surfaoe, ElgyLlgd, however. that in lieu of the foregoing, Licensee shall
have the rightfo use suitable deteclion equipment or other generally accepted industry practice (e.9.,
consulting with the Underground Services Association) to determine the existencd or location bfpipellrns and other subeurfiace structures prior to ddlling or excarrating with mechanized equipment.
Licensee may request information from Licensor conceming the existence and approximatd location
of Licensor's undergromd lines, utilities, and pipelinEs at oinear the vicinity of the proposed Etectric
Supply Line by contactlng Licenso/s Telecommunications Helpdesk at laast thirty (30) business
days prior to installation of the Electric Supply Line. Upon receiving Licensee's timely nequest,
Llcansor will provide Licensee with the information Licsnsor has in ib possession ogarding any
existing underground lines, utilities, and pipelines at or near the vicinity of the propoa€d Elecfic
Supply Line and, if applicable, ldentlff the locatlon of such llnes on the Premises pursuait to
Licensor's standard pmcedures. Licensor does not wanant the accuracy or completeness of
information relating to subsurfaoe conditions of the Premises and Licensee's operations will be
subjec't at all times to the liability provbions herein.
12.2 For all bores greater than 2$inch diameter and at a depth less than 10.0 feet below bottom of rail, asoil invect(Tation must be pedormed by Ucensee and revienrcd by Licensor prior to construction.
Thb study is to determine if granular material is present, and to prevent subsidence during the
installation process. !f 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 Llcang€e
to furnish for Licensofs review and approval, in Licensor's sole discretion, a remedhl plan to deal
with the granular materlal. Once Licensor has apprwed any such remedial plan in wrlflng, Llcensee
shall, at Licensee's sole cost and expense, e;i?ry out the approved plan in accordance with al! terms
thereof and hereof.
12.3 Any open hole, boring, or \ €ll, conslructed on the Premises by Licensee shall be safely covered and
secured at all times when Licensee ls not working in the actual vicinity thereof. Following completion
of that portion of the uork, all holes or borings conslruc-ted on the Premises by Licensee shall tie:
12.3.1 filled in to sunoundlng ground l6\rd with oompacted bentonite gmut; or
12.3.2 othenrise secured or retired in acoordance wiffr any applicable Legal Requirement. No
excavated materials may rcmain on L'pensor's property for more than ten (10) daW, butmust be properly disposed of by Lioensee in accordance with applicable Legal
Requiremetts.
LIAEILITY AND INSURANCE
13. Liabilitvandlndemnification.
13.1 For purposes of this License: (a) 'lndemniteoS" moans Llcemor and Licenso/s affliated companies,partnets, successors, assigns, legal representatives, ofhcgrB, dirtctors, shareholders, emplolnos,
and agents; (b) "Uabilities" moans all claims, liabilities, fines, penalties, @sts, damages, losses,
lieng, caus€s of action, suits, demands, judgmentE, and expenses (including, without limitation, court
costs, reasonable attomeys'fees, costs of investigatlon, removal ard remedlation, and governmental
oversight costs) environmental or otherwise; and (c) "Licensee Parties' rneans Licensee or
Licensee's officers, agents, invitees, licensees, employees, or contractorc, or any party direclly or
indirectly employed by any of them, or any party th€y conbol or exercise control over.
13.2 TO THE FULLEST EXTENT PERil]TTED BY LAW, LICENSEE SHALL, AIIID SHALL CAUSE tTS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARiJILESS ]NDEMNITEESFO& FROII, AiID AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR
DESCRIPTION DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FRO[, OR
RE|-ATEDTO (!N WHOLEOR tN PART):
13.2.1 THIS LICENSE, INCLUDING, WtTliC'UT LIUITATION, ITS ENVIRONMENTAL
PROVISIONS,
,13,2,2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2,3 LICENSEE.S OCCUPATION ATTID USE OF THE PREi,IISES,
13.2.4 THE ENVIRONiIENTAL CONDITIOI{ AilD STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANYACT OR OTISSION OF ANY LICENSEE PARTY.
-4-Form 421: Rev.201{)8)l
Tracking #1$51861
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREYER I'YAIVES
ANY AND ALL CLAI}IS THAT BY VIRTUE OF ENTERING INTO THIS LICE}ISE, LICENSOR IS A
GENERATOR, OWNE& OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES
OF THE COiIPREHENSIVE ENVIRONUENTAL RESPONSE, COilPEttlSATlON, AND LIABILITY
ACT, AS AiiENDED ("CERCLA") OR OTHER ENVIRONiiENTAL LAWS (DEFINED BELOW).
LICENSEE WLL INDEXINIFY, DEFEND, AND HOLD THE INDEMilTTEES HARMLESS FROM
ANY AND ALL SUCH CLAI]IIS. NOTHING IN THIS LICENSE IS iIEANT BY EITHER PARTY TO
CONST]TUTE A WAIVER OF ATTIY INDEMNITEE.S COi,IMOIII CARRIER DEFENSES AND THIS
LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY AGENCY OR COURT CONSTRUES THIS
LICENSE TO BE A WAIVER OF ANY INDEIINITEE'S COMMON CARRIER DEFENSES,
LICENSEE AGREES TO INDE]I'NIFY, HOLD HARTILESS, AND DEFEND INDEIIN]TEES FOR
AIiIY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS LICENSE. II{ NO EVENT AS
BETWEEN LICENSOR AND LICEI{SEE AS TO USE OF THE PREMISES AS CONTET'PLATEDBY THIS LIGENSE SHALL LICENSOR BE RESPONSIBLE TO TICENSEE FOR THE
ENVIROilTENTAL CONDITION OF THE PREMISES.
13.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE !S AT{ EMPLOYEEoF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITED BY LAW LTCENSEE SHALL,
AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, At{D HOLD THE
NDEMN]TEES HARMLESS FROH AI{D AGAINST ANY LTABTLITIES AR]SING OUT OF OR
RELATED TO (!N WHOLE OR rN PART) A]{Y SUCH ASSERTTON TNCLUDTNG, BUT NOT
LITITED TO, ASSERTIONS OF EMPLOYilIENT BY AN INDEMNITEE RELATED TO THE
FOLLOWING OR ANY PROCEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITYACT, THE SAFETY APPLIAI{CE ACT, THE LOCOMOTM INSPECTION AcT, THE
OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND
RECOVERY ACT, AND ANY SIM!].AR STATE OR FEDERAL STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENTLIABILITIES ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WLLFUL
UISCONDUCT OF ANY INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES,
INCLUDING THOSE ARISING FROiI OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL
NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY INDEIIINITEE.
13.6 Upon written notice from Licensor, Liconseo agreos to assume the defense of any laursuit or otherproceedins brcusht against any lndemnitee by any entity. rglatins to any matter covered bv thisproceeding brcught against any lndemnitee by any entity, relating to any matter covered by this
License for which License has an obligation to assume liability for and/or save and hold harmless
any lndemnitee. Llcensee shall pay all costs and oxpenses lncldent to such defense, lncludlns, but
14.
15.
any lndemnitee. Llcensee shall pay all costs and oxpenses
not limited to, reasonable aftornele' fees, investigatons'iqvesligatgrs' fees, litigation ard appeal expenses,
lncludlng, but
settlement payments, and amounb paH in satisfaction of judgments.
Personal Prooertv Risk of Loss. ALL PERSONAL PROPERW, lNCLUDlltlc, BUT NOT LIilIITED TO,
FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES wlLL BE AT THE RISK OF
LICENSEE ONLY, AND NO Ii{DEI'NITEE wlLL BE LIABLE FOR ANY DAI'AGE THERETO OR THEFT
THEREOF, WHETHER OR NOT DUE IN WHOLE OR !N PART TO THE NEGLIGENGE OF A]{Y
INDEMNITEE.
lFsulancq. Licensee shall, at its sole cost and expense! procure and maintain during the life of this License
the following insurance coverage:
15,1 Commercial Genera! Liabilitv lnsurance. This insurance shdlcontain broad form conbactual liability@a minimum of $2,000,000 each occunenoe and an aggregate limit of
at least $4,000,000 but in no event less than the amount otherwise canied by Licensee. Coverage
must be purchased on a post 2004 ISO occurenco or equivalent and include coveftrge for, but not
limited to, the following:
. Bodily lnjury and Property Damage. Personal lnjury and Advertising lnjury, Fire legalliability. Produc'ts and completed operations
This policy 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 anywork being done within 5O feet of railroad property.. Waiver of subrogation in favor of and acceptable to Licensor.
-5-Fmn421t Rcv.20llo801
Traddng #1$51861
. Addillonal insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle
Brokerage, lnc.. Separation of insureds.. Ihe policy shall be primary and non+ontibuting with respect to any insurance carried by
Licensor.
It is agreed that the workerc' compensafion 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 Licenso/s emplolees.
No other endorsemenls limiting coverage may be included on the policy.
15.2 Business Automobile Insuranca, This insurance shall oontain a comblned single limit of at least
$1,000,000, and include ooverage for, h,rt not limited to the following:
. Bodily injury and property damage.. Any and all vehicles owned, used or hired.
This policy shall also contain the following endorsernenE, which shall be indicated on the certificate
of insurance:
. Waiver of subrogation in favor of and acceptable to Liconsor.. Additional insured endorsement in favor of and acceptable to Licensor.. Separation of insureds.. The pollcy shall be prlmary and non-conilbutlng with respect to any insurance carried by
Licensor.
15.3 Workers'Gomoensation and Emolovers' Liability lnsurarrce, Thls Insurance shall indude ooverage
. Licensee's stiatutory liability under the nrorkor':s' compensation laun of the state(s) in which the
s€wices are to be performed. lf optlonal under state laws, the insurance must over all
employees an!,way.. 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 oontain the following endorsemenb or language, which shall be indicated on
the certificate of insurance:
. Waiver of subrogatlon in fravor of and acceptable to Licensor.
15.4 This insuranoe shall name onlv Licensor as the lnsured wittr
ooverage per occunencE and $6,000,000 in the aggregate. The coverage
nlv be effective durino the initial installation and/or conEtruction of
Elec-tric Supply Line is nEeded at a later date, an additional Rallroad Prot€ctive Liabllity lnsurance
Policy shall be required. The policy Ehall be issued on a standard ISO form CG 00 35 12 03 and
include the following:
. Endorsed to include the Pollution Exdusion Amerdment.. Endorsed to irrclude the Limited Seepage and Pollution Endorsement.. Endorsed to include Evacuation Expense Coverage Endorsement.. No other endorsem€nts restricting ooverage may be added.. The orlglnal pollcy must be provlded to Licensor prlor to performlng any work or seruices under
this License.' Definition of "Physbal Damage to Propertf' shall be endorsed to read: 'tneans direct and
accidentd loss of or damage to all property owned by any named insured and all property in any
named insured's care, custody and control arlsing out of the acts or omissions of the contrac{or
named on the Declarations."
In lieu of providing a Railroad Protectlve Liability Polhy, for a period of one (1) foar from the
Effective Date, LicenEe€ may participate in Licenso/s Blanket Railroad Potective Liability lnsurance
Policy available to Licensee or its conEactor. The limG of coverage are the same as above. The
cost is $460.
obtained under thls policy shal! only be erffective durin
the Elec{ric Suoolv Line. THE COI{STRUCTIOiI OF
during the initial installation ahd/or conEtruction ofI OF THE ELECTRIC SUPPLY LINE SHALL BEthe Elec{ric Supply Line. THE CCTNSTRUCTIOiI OF THE ELECTRIC SUPPLY LINE SHALL BE
GOilPLETED WmlN OilE (f ) YEAR OF THE EFFECTIITE DATE. ]f turther maintenance of the
-6.Forrn 421; Rev. 201{801
Tracking #1$51801
o I elec't to partlclpate in Lioenso/s Blanket Policy:
tr I elec{ not to participate in Licenso/s Blanket Pdlcy.
't5.5 OtherReouirements:
15.5.1 Where allouable by laur, al! policies (applying to coverage listed above) shall contain no
occlusion for punitive damagea.
15.5.2 Licensee agreos to walve ite rlght d recovery agalnst Llcensor fur all claims and suits
against Lioensor. ln addltion, Licensee's insurers, thmugh the terms of the policy or a poliry
endorsement, must waive theh rQht of subrogatbn agalnst Licensor for al! claims and suits,
and the certlflcate of lnsurance must r€f,ect the waiver of subrogntion endorsement.
Liensee further rvaives lts right of recovery, and ite ineurerc must also walve thelr rlght of
subrogation against Licensor for loss of License's owned or leased property, or property
under Liceneee's cat€, custody, or contol.
15.5.3 Licensee b not allowed to self-insure without the prior witten consent of Lloersor. lf granted
by Liersor, any self-insured rctention or other financial responsibility fur daims shall be
coversd direcdy by Licensee in lieu d ingurancs. Any and al! Licensor liabilities that would
othenvise, ln accordance wlth the provlslons of this License, be coveled by Llcensee's
insurance will be covered ag if Li<xnsee elected not to indude a self-lnsured retenlbn or
other fi nancial responsibillty for claims.
15.5.4 Prlor to enterlng the Premlses, Lbons€e shall fumish to Llcensor an acceptable certiflcat{s)
of insurane irrluding an originat signaUre of the authorized representrative evidencing the
required @verage, endorsements, and amendments. Licensee shall notiff Licensor in
rwiting at least 30 dayrs prbr to any cancelldion, non-renewal, substifution, or materid
alteratbn. ln the event of a claim or lawsuit involvlng Llcensor arlslng out of this License,
Uoensee will make available any required policy covering such daim or laurcuit.
15.5.5 Any insurance policy shall be twitten by a reputrable insuranoe oompany acceptrable to
Lioereor or wlth a qrnent Besfs Gulde Rating of A- and Class Vll or better, and authorlzed
to do business in the state(s) in which the service is to be pmvided.
15.5.6 lf coverage is purchmed on a "claims mado' basis, Licensee hereby agrees to maintain
cov€rage in force for a minimum of three years after expiratlon or termlnatlon of thls License.
Annually, Lkrnsee agrees to provide evidence of such ooveftUe as required hereunder.
15.5.7 Licensee represenb that this License has been thoroughly revlewed by Lbensee's
insurane agent(s[broke(s), wtro have been instnrc{ed by Liceneee to procure the
insuran@ coverage required by this License. Allocated Loss Expense shall be in addition to
all policy limits for coverages rsferenced above.
15.5.8 Not more frequently than once evey five lrsars, Lioensor may reasonably modifi the
required insurance coverago to reflect then-cunent risk management practices in the railroad
industry and underwri[ng practices in the insurance industry.
15.5.9 lf any portion of the operation b to be subconMed by Licensee, Licensee shall require ttnt
the subcontractor shall provide and maintain insurancg ooverages as set forh herein,
namlng Licensor as an addltlonal lnsured, and shall requine that the subconhactor shall
rolease, defend and indemnify Licensor to the same exlent and under the same terms and
conditions as Licensee ls rcquired to rslease, defend and indemnify Licensor herein.
15.5.10 Failure to provide evidence as required by this Scctlon 15 shall entltle, but not requirc,
Licensor to terminate this Licanee immediably. Aooeptance of a certifrcate that does not
comply with this Section shal! not oporate as a waiver of Licensee's obligations hercunder.
-7-Fom42'l; Rw' 201t0801
Tracklng #1$51861
15.5.11 The fact that insurance (including, without limitration, self-insurance) b obtrained by Lioensee
shdl not be deemed to rebase or dlmlnieh the liabllity of Licensee, induding, without
limitation, lhbility under the indemni$ provisions of this License. Damages rccoverable by
Lioensor shall not be limited by the amount of the required insurance covemg€.
15.5.12 These insurance provisions are intended lo be a separate and distinct obligation on the part
of the Ucensee. Therefore, these provisions shall be enforoeable and Licensee shall be
bound thereby regardless of whether or not indemnity provisbns ae determined to be
enforceable.
15.5.13 For purposas of ttis Secilion 15, Licensor shall mean "Burlington Northern Santa Fe, LLC',
'BNSF Railway Companf and the subsidlarieE, suaoessors, assigns and afriliates of each.
COM PLIAiICE WITH LAWS. REGULATIONS. Al{D E NVIRON ]TIENTAL IIATTERS
16. Comoliance with Laup. Rules. and Reoulations.
16.1 Llcensee shall observe and comply with any and all larirrs, statutes, regulatlons, ordinances, ordets,
covenanb, reetrictions, or deciskms of any court of competent jurisdic'tion ("Legal Requirements')
rclating to the construc{ion, maintenarrce, and us€ of the Electsic Supply Line and the r.rse of the
Prcmiseg.
16.2 Prior to entering the Premises, Lbensee shall and shall cause ib conbacto(s) to comply with all of
Licenso/s applicable saf€fiy rules and regulations. Licensee must ensure that each of ils employees,
@ntractors, agents or invitees entering upon the Premiees oompletes the safety orientation program
at the Website 'wrmr.BNSFcontrador.com' (the "S#y Orlentatlon') within one ),Bar prlor to
entering upon the Premises. Additionally, Licensee must ensure that ech and every employee of
Licensee, its contactors, agenb and inviteas possess a card cartifying completion of the Safety
Orlentatlon prior to entering upon the Premises. Lir:ensee must renew the Safety Orbntation
annually.
16.3 Liceneae shall obtain on or bdore he date it or its contsacior enters the Prembes, any and all
addltional rlghts-of way, easemonts, !il:enses ard other agreements relatirg to the grant of rights and
interests in and/or acoess to the fternises (collecfively, the "Rlghta') and such other righb, licens€a,
permib, authorizations, and approvals (induding without limitation, any neoessary local, state,
federal or tribal authorizations and environmental permits) that ana neoessary in order to permit
Llcensee to oonstsucl maintain, own and operate the Electdc Supply Line and othenryise to perform
its obligations hereund€r in accordance with Ote terms and conditions hereof.
18.4 Llcensee shall either require that the initial strated term of each such RighB be for a perlod that does
not expie, in accordance wllh lb odinary terms, fior to the last day of the term of thb Llcense or, lf
the initial stated term of any srch Right opires in accordance with its ordinary terms on a dale
earlier than the last day of the term d this License, Lbensee shall, at its cost, exercbe any renewal
rlghts thereunder, or othenruise acquire such extensions, addltions and/or replaoemenB s may be
nsoasaary, in order to cause he stated term hercof to be continued untll a date that is not earller
than the lasl day of the term of this Liense.
16.5 Upon the explratlon or brminaton of any Right that b necessary in order for Licensee to own,
operate or use the Electric Supply Line in accordance with the terms and condltlons of thls License,
thls License thereby shall automatically expire upon such expiration or termination of the Right.
17. Envircnmential.
17.1 Licensee shall stric{y comply with all federal, state and local environmEntal Legal Requirements and
regulatlons ln lts uee of the Prcmises, including, but not limited to, the Resource Conservation and
Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Polluton Act, the Hazardous
l{aterials Transportation Ac't, and CERCLA (collectively referred to as the'EnvlrcnmcnEl Lawr').
Licensee shall not maintaln a t oatment, storage, transfer or disposa! facilitS or underground sbrage
Fom 421: Rev.20140801
Tracking #15-51861
tiank, as defined by Envlronmental Laws on the Premises. Licensee shall not release or suffer the
release of oil or hazardous substiances, as defined by Environmental Lanm on or about the Premises.
17.2 Licensee covenanb that it will not handle or transport "hazardous waste' or "hazardous
substances", as "hazardous waste" and "haardous substrances" may now or in the future be defined
by any federal, state, or local governmental agency or body on the Prcmises. Licensee agrees
periodically to fumish Licensor with proof, satisfactory to Licensor that Licensee is in compliance with
the provlslons of this Sec-tion 17.2.
17.3 Lioensee shall give Liconsor immediate notlce to Licensor's Resoure Operations Center at (800)
832-5452 of any known (i) release of hazardous substances on, firlm, or afiectlng the Premlses, (ll)
violation of Environmental Larvs, or (iii) inspection or inquiry by govemmental authorfties charged
wlth enforcing Envlronmental Laun with respect to Licensee's use of the Premises. Licensee shall
use $e best efforb to promptly respond to any releaso on, from, or affec{ing the Premises, Licensee
also shall give Licensor immediate notice of all measures undertaken on behaff of Llcensee to
investigate, remedlate, respond to or otherwise cuna such release or violation.
17.4 lf Lioensor has notice ftom Licensee or othenrisE of a release or violation of Environmental Lauo
arising in any way with respect to the Electric Supply Line which occuned or rnay occur during the
term of this License, Licensor may require Licensee, at Licensee's sole risk and €xpsnse, to take
timely measures to investigate, remediate, respond to or othenrisg cure such release or violation
afiecting the Premises or Licenso/s rightof-way.
17.5 Licenses shall promptly report to Licensor in witing any conditions or activities upon the Premises
known to Licensee which create a risk of harm to porsons, property or the environment and shall
take whatEver aclion is necessary to prevent injury lo persons, property, or th€ onvironment arising
out of such conditions or activities; provided, hourcver, that Licensee's reporting to Licensor shall not
relievs Licensee of any obligation whatsoever imposed on it by this License. Licensee shal! promptly
respond to Licensor's request for informatlon regarding said oonditions or activities.
DISCLAIMER OF WARRANTIES
18. No Warranties.
LICENSOR'S DUTIES AND WARMNTIES ARE LIM]TED TO THOSE EXPRESSLY STATED IN
THIS LICENSE AND SHALL NOT ]NCLUDE ANY ITIPIIED DUTIES OR IMPLIED WARMNTIES,
NOUY OR !N THE FUTURE. NO REPRESENTATIONS OR WARRANTTES HAVE BEEN iIADE BY
LIGENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY
wArvEs ANY At{D ALL WARMNTTES, EXPRESS OR tMpLtED, WTH RESPECT TO THE
PREMISES OR WHICH TAY EXIST BY OPERATION OF I.AW OR IN EQUITY, INCLUDING,
W]THOUT LIMITATION, AT{Y WARRANW OF MERCHANTABILITY, HABITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
LICENSOR MAKES NO WARRAiITY, REPRESENTATION OR CONDITION OF ANY KIND,
EXPRESS OR rMpLrED, CONCERNING (A) THE SCOPE OF THE LTCENSE OR OTHER RtcHTS
GRANTED HEREUNDER TO LTCENSEE OR (B) WHETHER OR NOT LTGENSEE'S
CONSTRUCTION, MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC
SUPPLY LINE YI'ILL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATESoF THIRD PART|ES, INCLUDING, WTTHOUT L|MTTATION, ANr LEASES, USE RIGHTS,
EASEilIENTS AND LIENS OF ANY THIRD PARW.
Disclaimer oJ Waranty for Quiet Enioyment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE
PRE]f,ISES NOR UNDERTAKE TO DEFEND LICENSEE !N THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYITIENT IS UADE.
Evic'tion at Risk of Licensee- ln case of the eviction of Licensee by anyone owning, claiming tlUe to, or
claiming any interest ln the Premb6, or by the abandonment by Llcensor of the afiected rai! conidor,
Licensor shall not be liable (i) to refund Licensee any compensation paid hereunder, excepl for the pro.rata
18.1
19.
20.
-9-Form 421; Rev.20140801
21.
Tracklng #1$51861
part of any recuning charge paid in advance, or (ii) for any damage Licensee sustains in connection with the
eviction.
LIENS AND TA)(ES
Liens and Charges. Lac,ensee shall promptly pay and discharge any and all liens arising out of any
consbuc'tion, alterations or repairs done, suffered or permitted to be done by Liensee on Prcmises.
Llcensor is hereby authorized to post any notices or take any other action upon or with respect to Premises
that is or may be permitted by law to prevent the attachment of any such liens to Premises; provided,
however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability
under this Sec'tion 21 or any other Section of this License.
Taxes. Licensee shall pay when due any tiaxos, assessments or other charges (collectively, 'Taxes") levied
or assessed by any governmental or quasigovernmentral 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 attributable to the lmprovements.
DEFAULT. TERMINATION. AND SURRENDER
Default and Termination. ln addition to and not in limitation of Licenso/s right to terminate for failure to
provide evidence of insurance as required pursuant to the terms of Sectlon {5, the followlng 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 Licenseo's covenants, agreements, or obligations contrained 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
Scc'tlon 26 below, Liensor may, at its option, terminate this License by serving five (5) dala' notice
in witing upon Licensee. Notwithstanding the foregoing, Licensor shal! have the right to terminate
this License immediately if Licensee fails to provide evidence of insurance as required in Sec{ion 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or
Eansporting of hazardous uraste or hazardous material, notwithstanding anything contained in any
other provbion of this License, Licensor may, at lts option, terminate this License by serving five (5)
days' notice of termination upon Licensee.
23,3 Any watuer 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 afiect
Licensor's ability b enforce any Section of thls License. The remedy set forth in this Sec{lon 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 lerminate this License for failure to provide
evidence of insurance or occurrence of defaults as described above, thb License may be terminated
by elther party, at any time, by serving thidy (30) days'rrritten notice of termination upon the other
party. Such termination shall not release elther party hereto from any liabilfty or obligation under the
Ucense, vutether of indemnity or othenrvise, resulting from any acts, omissions q events happening
prior to the date of termination or thereafier in case by the terms of tha License it is provided that
anythlng shall or may be done after termlnation hereof.
Sunender of the Pr,emises,
24.1 On or before expiration or termination of this License for any reason, Licensea shall, at its sole cost
and expense:
24.1.1 if so directed by Licensor in writing, remove the lmprovemenls, the Elec'tric Supply Line and
all appurtenancas thereto, or, at the sole discretion of Licensor, appropriately decommission
the Electric Supply Line with a method satisfac'tory to Llcensor;
24.
-10-
Fotm421; Rev,201lo801
Tracking #15{1861
24.1.2 report and rcstore any damage to the Premiees or Licenso/s other property arising from,
grorving out of, or conneded with Licensee's use of the Prembes;
24.1.3 remedy any unsafe conditions on the Premlses creatEd or aggravated by Llcensee; and
24.'l -4 leave the Premises in substantially the condiUon which existed as of the Efiective Date.
Upon any expiratlon or terminaton of thlE Llcense, lf Llcensee fails to sunender the Premlsee to
Licensor or if Licensee fails to complete its obligations under Sec'tlon 24.1 above (the "Reltora0on
Obligations'), Licensee shall have a limited license to enter upon the Premis€s solely to the extent
neoessary for Lloensee to complete the Restoration Obligations, and all liabillties and obligations of
Llcensee hereunder slull contlrue in effect until the Premises are sumEndered and the Restoration
Obligations are completed. Neither termination nor explratlon shall releaEe Licensee from any llablllty
or obligation under this License, whelher of indemnity or otherwise, resulting from any ac{s,
mrbeions or evenb happening prior to the date of brmination, or, if later, the date when Licensee
sunenders the Prembes and allof the Regtoratlon ObllgaUons aro completed.
lf Licensee fails b complete the Restoration Obligations within thirty (30) day's af,er tha date of such
termination of iB tenancy, then Licensor may, at ib election, either: (i) remove the Electic Supply
Llne and the other lmprovements or othenrvise restore the Premises, and in such event Licensee
shall, within thirty (30) days after receipt of billtherefor, rdmburse Llcensorfor cost lncuned, (ll) upon
written notice to Licensee, take and hold the Electic Supply Line and the other lmprovements and
personal propsrty as ib sole propert!, witrout paynent or obligation to Licensee therefor, or (iii)
spedfically enforce Llcensee's obligatlon b rqstore and/or pursue any remedy at law or in equity
against Licensee for failure to so restors. Further, lf Llcensor ha consented to the Electlc Supply
Line and the other lmprovements remaining on the Prembes following tennination, Licensee shall,
upon request by Licensor, prcvide a bill of sale in a form acceptrable to Lioensor conveying the
Electric Supply Llne and the other lmprovements to Liconsor.
UISCELLAI{EOUS
Successons and Assions. All provisions contained in this License shall be binding upon, inure to the benefit
of, and be enforceable by the respective sucoessors ard assigns of Lloensor and Llcensee to the same
extent as if each such successor and assign uas named a party to this License.
Assignment.
28.2
Licensee may not sell, assign, transfer, or hypothecate thts Lioense or any right, obligatlon, or
interest herein (either voluntarily or by operation of law, merger, or otherwise) without the prior
ntltten consent of Licensor, wtrlch consent may not be unreasonably withhdd or delayed by
Licensor. Any aftempted assignment by Licensee in violation of thls Sec'tlon 26 shall be a breach of
this License and, in addition, shall be voidable by Licensor in its sole and absolute discretion.
For purposes of thls Sec{lon 26, the rvord "assign" shall include without limitation (a) any sale of the
equity interests of Licensee following which the equity interect holders of Llcensee lmrnedlately prior
to such sale own, direcfly or indirectly, less than 50% of the combined voting poursr of the
outstanding votng equity anterostB of Licensee, (b) any sale of ail or substantially all of the assets of
(i) Llcensee and (ll) to the extent such entities exis[ Licensee'8 parent and subsarriric, tiaken aB a
whole, or (c) any reorgenization, rccapitallzatlon, merger or consolidatlon InvolMng Llcensee.
Notwithstanding the foregoing, any reorganization, recapitalization, merger or consolidation following
whidr the equity interest holders of Licensee immediately prior to such reorganization,
recapitalization, merger or consolidation ofln, dhectly or indirectly, at least 50% of the mmbined
voting powsr of the outstanding voting equity intercts of Licensee or any suooessor 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 !N LICENSOR'S SOLE
DISCRETION.
24.2
26.1
-11
Fom 421: Rcv.201408)'l
27.
Tnacking #1ffi1861
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the
contrary, if Licensee sells, assigns, transferc, or hlryothecates this License or any interest herein in
contravention of the provislons of thls License (a 'Purported Assignmenf') to another party (a
'Purpoiled Tranrfcrce"), the Purported Transferee's enjoynent of the rights and privileges granted
under this License shall be deemed to be the Purported TransferEe's agreement to be bound by all
d the terms and provisions of this License, including but not limited to the obligation to comply with
the provlslons of Sectlon 15 above concemlng insurance requirements. ln addition to and not in
limitation of the foregoing, Licensee, for itsef, its suocessors and assigns, shall lndemniff, 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
Asslgnment.
26.4 The provisions of this Sectlon 28 shall survive the expiration or earlier termination of this License.
Notlces. Any notice, invoice, or other writing required or permitbd 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, r€turn receipt requested, or (ii) deposited into the custody d a
nationally recognized ovemight delivery seruice, addressed to the pa$ to be notified at the address for such
party specified below, or to srrch other address as the party to be notified may designate by giving the other
party no lees than thlrty (30) days' advance wrltten notlca of such change in address.
If to Licensor:Jones Lang LaSalle Brokerage, lnc.
4300 Amon Carler Blvd., Suite 100
FortWorth, TX 76155
Attn: Permits/Lbense
BNSF Railway Company
2500 Lou Menk Dr. -AOB3
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
PaciflCorp
825 NE Multnomah Sfeet
Suite 1700
PorUand, OR 97232
wlth a copyto:
lf to Ucensee:
Survival. Neither termination rrcr expiration wlll release either party from any liabllity or obligation under this
Li@nse, whether of indemnity or otherwise, resulting frorn any acts, omissions or events happenlng prior to
the date of termination or expiration, or, if later, the date wtren the Electric Supply Line and the other
lmprovements are removed and the Premises are restored to its condition as of the Effec{ive Date.
Recordation. lt is understood and agreed that thb License shall not be placed or allowed to be placed on
public record.
Aoolicable Law' All queetions concernlng the interpretation or applicaUon of provisions of this License shall
be decided according to the substrantive larira of the State of Texas without regard to confllcts of law
provisions.
Sevqgbilitv. To the maximum o<tent possible, each plovislon of this LlcenEe shall be interpreted in such
manner as to be effec-tive and valid under applicable law, but if any provislon of thle Licanse shall be
prohibited by, or held to be invalid und€r, applicable law, such provbion 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.
lntegratbn. This License is the full ancl complete agreement between Licensor and Licensee with respecl to
all mafrers relating to Licensee's use of the Premisee, and supersedes any and all other agreements
b€t,iroon the parties hereto relating to Llcensee's use of lhe Premlses as descrlbed herein. Ho\rtrcver, nothing
30.
31.
-12-
Form 421 ; Rcv. 20140801
3i).
35.
Tracking #1561861
hereln is intended to terminate any survMng obligation of Licensee or Licenso€'s obligation to defend and
hold Liceneor harmtess in any prior mitten agreement between the paties.
Jolnt and Several Lhblllty. tf Lloensee consbts of tvyo or more pertles, all the covenants and agreements of
Licersee herein contrained shall be the jolnt and several cownants and agreernents of such patties.
Wairrer. The waiver by Licensor of the breach of any povbion herein by Lioensee shall in no way impair the
right of Lloensor to enforce that provlsion for any subsequent breach thereof.
lnteroretation.
35.1 Thle Llcense shall be lnterpreted ln a neubal manner, and mt morc stronglyfor or agninst any party
based upon the sourso of the draftsmanship; both parties hereby agree that thls Llcens€ shall not be
subject to the principle that a contac't would be oonstued against the party which drafted the same.
Article titles, headings to soc'tiorB and par4raphs and the table of contents (if any) ae inserted br
convenlence of refererrce only and are not intended to be a part or to ffi the meanlng or
inbrpretation hereof. The exhibit or exhibits rsferi€d to hsein shail be consfued with and aa an
integral part of this Llcense to the eame e)dent as if they were set forth verbdim herein.
35.2 As used hercin, "lndude", 'lncludes" and "induding" ars deemed to be followed by kithout
limitation" n'hether or not they are ln fac-t fdlowed by such uorde or uprds of llke Imprt; Vrltlng',
triften'and comparable terms refer b printing, tlping, lithography and other means of reproducing
words in a vbible form; references to any porson are also to that person's suooessors and permitted
asslgns; "hereof', "herein', 'hereund€r" and comparable terms refer to the entlrety hereof and not to
any partictrlar article, sec[ion, or other subdivision hereof or attachment hereto; references to any
gender include referenoes to the masculine or feminirp as tho context requires; referBne to the
plural irrclude the sanguhr and vice versa; and nferences to this License or other documents aro as
amended, modlfied or supplemented from time to time.
Counterparts. This License may be executed in multiple counterparb, each of wtrlch shal!, for all purposes,
be deemed an oriTinal but which together shall constihrte one aM the same instrument, and the signature
pagos from any oounterpart may be appended to any other oounbrpart b aesernble fully exeanted
documents, and counterparts of this License may also be orchanged via email or electronic facshnile
mrchines and any email or ebcbonic facsimile of any party's signature shall be deemed b be an original
slgnature for all purposes.
Liceneo/s Reoresentative. Jones Lang LaSalle Brokerage, lrrc. is acting as representative for BNSF Railway
Gompany.
END OF PAGE. SIGNATURE PAGE FOLLOWS
37.
- 13.
Fom 421: Rcv.20140801
Tracking #15{1861
Thls Ucense has been duly executed by the partbs herertro as of the date belorveach party's signature; b be
erffec'tlve, however, as of the Effectlve Date.
LICEII$B:
BNSF RAILWAY COIITPANY a Delawarc corporation
By: Jorrs Lang LaSalle Brokerage, !rrc.,
4300 Amon Carter Blvd, Sulte 100
FortWorth, TX 76155
Ed DarterTith: Sr. Vice President - lrlational Accounts
EE!9EE:
PAGIFIGORP an Oregon corporation
By: 825 NE Multnomah Str€€t
Sulte 1700
Portand, OR 97232
By:
Tttb:
Date:
-14-Fom 421i Rev.201408(ll
COORDINATE SYSTEM: OR S TRACKTNG NO. 1561861
@l(olrol(\ltq
d
UJt
o.
=
EXHIBIT ''A''
ATTACHED TO @NTRAGT BEMEEN
BNSF RAILWAY COMPANY
AND
N
PAC!FICORP
scALE: 1 tN.= L@- FT.
ruonftnruEsr - ov.GATEWAY SUBDIV.
L.S. 0055 MP: 10.54
DATE O1D7PO15
SECTION: 21
TOWNSHIP: 40S
MNGE: -.JOEMERIDIAN: WLLM
tP 10.5,f
t2l'89,3.373'W a44't7.0t?t{,
tlt.
trt','4m
ffd'*ffi. fu"'ffi j.."19
a.
NOTE: ADDITION TO EXSNNG
WRE LINE CONTRACT GN41 2,1,1
IGN, IGP,
DESCRIPT]ON OF WRES OVERTRACK
WRES LOCATEDAS SHOWN BOLD
TYPE NT'MBER
ELECTRIC
NEAR MERRILL
COUNTY OF KI.AMATH
DISTANCEABOVEVOLTAGE TOP OF RAIL
12 KV 3/
STATE OF OR
CLEARS RAILTA'AY
COMPANYSWRES
N/A
JRB
DRAWNG NO.62940
(E niT,if:'
Jones Lang LaSalle Amedcag lm.
4800 tumn Carter BlYd, Sulte 100
FortWorfi, Texas 76155
br +1 817-23G2600
hx +1 817 3m€265
February9,2015
PacifiCorp 1S51862
Afibntlon: Mr. Scott illeaee
E25 N Multnomah Street
Suite 1700
Podand, OR 97232
Dear Mr. Mease:
Attacfied pleaee find a copy of the requested confac't for execution by an ofidal authorlzed b exeqrte confact
agreemenE on behalf of yar company. P|ease print two (2) copiss execute and Wodolml sigrneturc br completion on part of BNSF Railway Company CBNSF') to this office, along s'tth the
follorving requ Irements :
o A ctred< in the amornt d $3500.00 payable to BNSF Railway Company wtri*r covers the contnac{
fee(s).
Please note the agreemenB cannot be executed by BNSF without an approrod insurance certificate. lf therc
ane any iesues wlth your insurance, you wlll be cortacted by a member of the Rlsk Management team of BNSF
Railway.
1. A Certficate of Insurance as rcquirod in the agreement.
2. A rcparate pollcy for Rallroad Protectlve Llablllty Ingurance as rcqulred in the agreement (ORIGINAL
POLICY IiUST BE PROVIDED). BNSF Rallway Company wil! b6 the only insurcd party; OR;
ln lleu of provldlng a..p!tuto pollcyllor mllrold PrDt cilhlr Ueblllty hluranc-c, you may participate in the
BNSF s Railroad Protectlve Policy by ched<lng the approprhte box ln the contract and ircludlng an additional
$460.00 with your check.
PLEASE ADVISE IF THIS PROJECT IS ARRA FUNDED.
Aocepbnce and deposlt of any check by BNSF does not consUhrte an agr€omont betne€n BNSF and Lioensee
fu ft€ requested lbense. BNSF shall not be oblagated to hold tte check in a separate fund, but may commirBle
Un funds wlth other funds of BNSF, and ln no event shall BNSF be respomiHe for intersst on said funds.
The endoged permit is not a binding agreement and shall b*ome binding only when, and lf, lt ls executed by
you and fully approved and executed by BNSF Railway Company. Upon completion on behalf of BNSF, one
fully executed counterpart wlll be returned for your records.
Thc rpccif,catlomlplanr you prcvldcd m.y difler ftom BNSF'r minimum rpeclflcafunlqulrcmenE. Thercforc, prlor io your lnrtallation, plore ruvlcw the Exhiblt A to determlnc thc
rpeclflcations neo.asary for your lnstallatlon.
Please be lnformed that lf conbacts, Eos, and lnsurance are not rsfurned wlthin shg (60) daW, the processingfe wlll lncreage to $15fi1.00.
Sinoerely,
6,atrina Malmm
Katrina $glaza7
Assochte Marnger Permlts
Attacfiment
Tracklng #15-51862
(Electdc Light, Power Supply, lrrespective of Voltage, Overhead or Urderground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("Licenoc") is made to be sffective ,2015,
(the "Eftectivc Date") by and between BNSF RAILWAY COilPANY, a Delaware corporation ('Llcanro/') and
PACIFICORP, an Oregon corporation ('Licensee").
ln consideraUon of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1.Grant of License. Licensor hereby grants Licensee a non-o<clusive license, subjec-t to all rights, intgrcsto,
and estates of third parties, including, wlthout limitatlon, any leases, use rights, easements, liens, or othor
encumbrances, and upon the terms and onditions set forth below, to construct and maintain, in sficd
accordance with the drawings and specifications approved by Licensor as part of UcenEee's applicationprooss (the 'Drawingt and Speclflcdlons"), an electdc supply line containing a maximgm of four (4)
@nductors, together wlth its supportlng or containing Etructures (collectively, the "Electrlc Supply Llnc"),
across or along Licenso/s rail mnidor at or near the station of Menill, County of Klamath, Stab of Oregon,
Line Segment 0055, Mile Post 9.89, as shown on the attached Drawing No. 62941 dated January 27,2A15,
attacfied hereto as E$IF!!_'A', and inoorporated hercin by reference (the'Prenicc").
Term. This Lkrnse shall commen@ on the Efiec{ive Date and shall continue for a period of trcnty-five (25)
years, subjec't to prior termination as hereinafier described.
Existino lmorovements, Lioensee shall not disturb any improvements of Licensor or Licensor's existing
leesees, licensees, eagoment beneficiaries or lien holders, if any, or interfere with the us€, r€pair,
maintenance or replacerneni d such improvements.
Use of the Premises. Llcensee shall use the Premises solely for construclion, maintenance, ard use of the
BecElc Supply Line in accordance wtth the Drawinp ard Specifications. Licensee shall not use the
Premises for any other purpose.
Alterailons. Except as set forth in this License, Licensee may not make any allerations to the Premises or
permanenty dfix anything to the Prembes or any buildings or other stuctures adjacent to the Premises
without Licenso/s prior written consent.
3.
COMPENSATION
License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Tholsard Flve
Hundred and No/l00 Dollars ($SSOOI as oomp€nsatlon for the use of the Premlses.
7. Costs and Exoenses.
For the Blrpoge of this License, "cost' or "@stB' and "expense" or 'exponses" includes, but b not
limited tir, dual labor ard materlal cosb induding allasslgnable addilives, and materialand supply
costs at curent value where used.
Llcensee agre€E to reimburse Liconsor (pursuant to the terms of Sec{ion 8 below) for all costs and
expens€s incuned by Ucensor in connectlon wlth Llcensoo's use of the Premises or the presence,
constuction and maintenance of the Electric Supply Line, includlng but not llmlted to the fumlshlng
of Ucenso/s flaggers and any vehicle rental costs incuned. Licensee shall bear the cost of flagger
servbes and other safety measures provided by Licensor, wtren deemed neoessary by Li<rnso/s
representative. Flagging coatr shall indude, but not be llmlted to, the folloring: pay for at least an
eight (8) hour basic day with time and one-half or double time for overtime, rest dayt and holidays
(as applicable); vrcation allowance; paid holidayo (as applicable); railway and unemployment
insurance; public liabillty and property damags insurance; health and welfare benefiB; transportation;
meals; lodging and supervision. Negotiatlone for rallway labor or collective bargaining agreements
and rate changee authorized by appropriate Federal authorities may increase flagging rates.
Flagging ratee in etreot at the time of performance by the flaggers will be used to calculate the
flagging costB purtuant to thls Sec'tion 7.
7.1
7.2
Fqn 421; Rar. 20141)801
Trad<lng#1#1862
8 ffi"'#Llltiffiifii.'#tS.'il""rl'"%iin:*:',,$?i':':f i'.l1,3ffi;"5"'if,,Tff,lili"3,8"*'ilt
unpail $rm from the due date until paH at an annual rate equal to the lesser of (i) the prime rate last
rublbhed in The Wall Steet Jafinal in the prcceding December dus two and one-half percent (2-112%1, or
(il) the maxlmum rate pemltEd by !aw.
LICENSOR'S RESERVED RIGHTS
9. Reserved Rhhb of Use. Licensor exceptB and reserves the righl to be exercised by Licensor and any otherpartEw-o may obtain witten permisslon or authority forn Lbensor:
9.1 to malntain, use, operate, r€pair, rephce, modifu and relocate eny utility, polilsr or communkntion
pipeilines/cables and appurbnances (other than the Elecfric Supply Line) and othe faclllties or
strucrtures of like character upon, over, under or across the Premlses exlstlng ae of the Efiectlve
DatE;
9.2 to construd, maintain, rcnew, use, operato, change, modify and relocate any tracks or additiona!
facilities, struc-tures and related appurtenanoes upon, oysr, under or across the Premises; or
9.3 to use the Premises in any manner as Lilrensor in its sole discretion deems appropriate, providd
Llcensor uses all commercially rcasonable sfforb to avoid materlal interference wlth the use of the
Premises by Llcensee for the purpos€ specilled in Sec-tlon 4 above.
Rioht to Reouire Relocation.ffiner ire Relocation. lf at arry time during the term oflhb License, Licensor desiog the uqe o[ib rail
6rFnsuchamannerasvttulld,inLicenso/ereasonableoplnion,belnterferedw|thbytheElecEb
ly Line, Licensee shall, at ib sole el(pense, wlthln thlrty (30) daW after receiving wrltten noti6 fr!fiiSupply Line, Licensee shall, at ib sole el(pense, wlthln thlrty (30) days after receiving wrltten notice frort
Licensor to such effect. make such chanoes in the Electic Suooly Line m in the sole discretion of LicensorLicensor to such effect, make such changes in the Electic Supply Line m in the sole tiiscretion of Licenso
may be necossary to avol_d inteference^with the proposd use of Lioenso/s ral conidor, including. withoutmay be necossary to avold interference with the proposd use of Lioenso/s ral conidor, including. without
limitation, the reb-catbn of the Electric Supply Line, or the construc*lon of a new electlc line to replaoe the
Elecflc Supply Line. Notwithstanding the foregoing, Lioensee ag€es to make all emergency changes and
minor adJustments, as determined by Lioersor in its sole discretion, to the Electic Supply Line pompUy upon
Licenso/s rcquest.
10.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Eleclric Suoolv Line.
11.1 Uoensee ehall notify Llcensol's Division Engineer, Mike Schram at 1313 W 1lfi Street, Vancouwr,
WA 98660, telephone (360) 41&6415, or email [e-mail], at least ten (10) busineee
days prior to installation of he Electric Supply Line and pribr b entering the Premises for any
subsequent maintenance thereon. ln the event of em€rgancy, Licensee shdl notify Licensor of
Llconsee's entry onb the Premises at the telephone number above as soon as practcable and shallpromptly thereder follow up with witten notice d such enty.
11.2 Llcensee's on-elle suporvlsors shall rotairvmaintaln e fully executed copy of thie License at all times
whlle on the Premlses.
11.3 While on the Premisos, Liconsee shall use only publlc roadways to cross from one side of Lbenso/s
backs to the other.
11.4 Any contractolr or subcontractors performirq work on the Electsic Supply Line or enterlng thePremiss on behatf of Licens€e shall be deemed servants and agenE of Licensee for purpooes of
thle Llcense.
11.5 Under rp condiUons shall Licensee be permitted to conduct any tests, investgatlons or any otlreractivrty using mechanlzed equlpment and/or machlnery, or placo or etore any mechanized
equlpment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad trac*
on the Premises unless Licensee has obtained prior unitten approvalfrom Licensor. Licensee shall,
at its sole cost and expense, prform all activities on and about the Premlses ln such a manner as
not at any time lo endanger or lnterfere wlth (i) the existence or u8e of present or futurs tsacks,
rcadbe<ls, or property of Licensor, (ii) the safe operation and activities of Licensor or existing thirdparties, or (lii) the rights or anteresb of hird parties. ll ordered b cease using the hemises at any
time by Licenso/s personne! due to any hazardous condition, Llcensee shdl lmmediately do so.
Nohrthstanding the foregoing right of Licansor, the parties agr€e that Lbensor has no duty or
obllgatlon to monltor Licensee'g use d the Premis€ to determlne the safe nature thereof, it being
solely Li'censee's reeponsibility to ensune that Licensee's use of the Premises is safe. i,lelther the
-2-Form tf21; Rd.201,()001
Tnacking #15-51862
o(ercise nor the fallure by Licensor to exercise any rights grantd in this Section wil! alter the liability
allocatlon provlded by this License.
11.6 Liensee shall, at its sole oost and expense, consbuct and malntain the Electric Supply Line in such
a manner and of such materlat that the Electric Supply Lins will not at any time endanger or interfere
with (D the axistence or use of present or fufure backs, roadbeds, or property of Lioensor, (il) the safe
op€ration ard ac'tivities of Lioensor or existing third parties, or (iil) the rlghts or interests of thirdparties. The construction of the Electric Suppty Line shall be completed within one (1) year of the
Efiectlve Date, and any subsequent maintenance shall be completed within one (1) year of iniiiation.
Within frfreen (15) daW afier completion of the construction of the Electric Supply Line or theperformance of any subsequent maintenance thereon, Licensee shall, at Llcensee's own cost and
expenss, restore the Premlses to substantially their state as of the Efrective Date, unless otheru{se
approved in advance by Licensor in writing. On or before expiration or termination of this License for
any reason, Liconsee shall, at its soh cost and expens€, sunender the Premises. lo Licensor
pursuant to the terms and conditions set forth in Section 24 hereof.
11.7 Ucensor may direct one or more of its field engineers to obEerve or inspect the consfruothn and/or
maintenane of the Elec'tric Supply Line at any time for compllance with the Drawings and
Specifications and Legal Requlrements (defined below). lf ordered at any time to halt construction or
malntenance of the Elec*ric Supply Line by Licenso/s personnel due to non-compliance with the
Drawings and Specifications or any other hazardous condition, Licensee shall imrnediatdy do so.
Notwittrstarding the foregoing right of Licensor, the parties agree that Licensor has no duty or
obligation to observe or insirect, or to halt work on, the Electic Supply Line, it beirB solety
Licensee's responsibil'rty to ensure that the Eledric Supply Line is consfuc{ed and maintained in
stric{ accordance with the Drarings and Specifications and in a safe and workmanllke manner in
compliance with all terms hereof. Nelther the exercise of, nor the failure by Licensor to exercise, any
rlght granted by this Sectlon wlll 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 Llcsnseo's sole eltpense, afliange for the
performance of such work as lt deems neoessary for the safety of iB operations and activiUes.
Lioensee shall promptly reimburse Licensor for all costs and expenses of sucfi vrork, pursuant to the
terms of Section 8- Licensor's failure to perform any obligations of Lioensee shall not alter the
liability allocation hereunder.
11.8 Llcensee shall, at its sole cost and expense, consbuct and at all times maintain the Electric Supply
Line in accordance with the National Electric Safety Code.
11.9 lf the operation or malntenanoe of the Elec{ric Supply Line at any time caus€{i interference, induding
but not limited to physical interference from elecbomagnetic induction, electrostatic induction, or from
stray or other cunenb,-wttf the facilities of Licensor or of any le-ogee or licensee of Li:ensor, or in
any manner interfere with the operalion, maintenanoe, or use by Licensor of its dght-of-way, kacks,
8tucfures, pole llnes, slgnal and communication lines, radio, or oth* equipmenl devices, other
property or appurtonances thereto, Licensee agr€os immediately to make such changes in the
Elec-tric Supply Line and fumish such proMive devices and/or replacement equlpment to Licensor
and its lessees or licenseeg as shall be necessary, in the judgment of Licenso/s representative, to
ellmlnate such lnterference. The cost of such protec'tive devices and their installations shall be bome
solely by Liceneee. lf any of the interference covercd by this Scctlon {{.9 shall be, in the judgment
of Licensor, of such importance to the safety of Licenso/s operations as to require immediate
conw{ive action, Llcensee, upon notlce from Licensor, shall either, at Licensods election, ceaso
uslng the Elec'lric Supply Line for any purposo whaEoever and remove same, or reduce the voltage
or load on the EecE'rc Supply Line, or take such other interim protectivr mearsur€s as Llcenqor may
deem advisable, until ths protedive devioes and/or replaoement equlpment required by this Sectlon
11.9 have been installed, put in operation, tested, and found to be satisfac'tory to correct the
lnterference.
11.10 Licensee shall, at ib sole cost and oxpense, remove all combustible material hom around ntooden
poles on the Premises, if any, and will at all times keep the space around such pdes ftee of such
materid, and if remorral of such combustible material shall not be attended to with fifteen (15) days
after having been requested by Lioensor to do so, Licensor shall have the rlght itself to perfiorm the
work and Liensee hersby agr€as to reimburse Licensor for the expenso so lncured.
Borino, and Excavation.
12.1 Prior to Licensee conductlng any boring, excavation, or similar urork on or about any portion of the
Premises, Licensee shall explore the proposed location for such urcrk with hand tools to a depth of at
least three (3) foet below thE surfucg of the grornd to determine whether pipelines or other
12.
Fom 42t: Rcv.201l()80i
Tra*ing #15€1862
strucfur€s exist belov the surface, Dlgyldgd,, bwever. hat in lieu of the foregoing, Lioensee shall
have the right to ug€ suitable detection equipment or other generally aoepted lndusty pradice (e.9.,
consultim -wittr ttre Undergrcund Servioes Association) to determine the exbtence or location of
pipelines and other subsurface stru_cture8 prlor to drllllng or excavaflng with mechanized equipment.
Libens€e may requct infonnation from Lirnsor conceming the existenoe and approximale locationd Lirnso/s underground lines, utilitiqg, and pipelines at or nes the vicinity of the propcod Electic
Supply Line by contacting Licenso/s Telecommunications Helpdesk at least thlrty (30) buslness
dayr irior to lnstalhtlon of the Electic Supply Line. Upon receiving Licensee's timely r6quest,
Licsruior will provlde Lioensee with ihe information Llcensor has in lts possession regardlng any
exisflng undeiground lines, utilities, and pipelines at or near the vicinity of the proposed Elec{ric
Suppli Line and, if applicable, identify the locatlon d such llnes on the Premises pursuant b
Lkpnsor's strandard procedures. Lioensor does not tffanent the accuracy or completeness cf
informatbn rolating to subsurface conditions of the Premises and Licensee's openations will be
subJect at all times-to the liability provlsions herein.
12.2 For all boree greater than 2(Hncfi diameter and at a depth less than 10.0 feet below botbm of rail, a
soit investigeiion must be performed by Licensee and rwiErved by Lioensor prior to mnstruction.
This study is to determine if granular material b present, and to prevent subsldence durlng the
installatlon prroess. lf the investlgotion determlnes ln Licensor's reasonable opinion that granular
material is prcsent, Licensor may select a new Iocation for Licensee's use, or may require Lioensoe
to fumish br Licenso/s review and apprcval, in Licenso/s sole disqrfiion, a remedial plan to deal
wih the granuhr mabrial. Once Llcensor has approved any such rcmedial plan ln writlng, Llcensee
shall, at Llcensee's sole cost and orpense, carry out the approved plan in accodance with all terms
thercof and hercof.
12.9 Any open hole, borlng, or udl, constructed on the Premlses by Licensee shall be safely oovered aM
seoled at all tlmes when Liensee is not working in the actual vicinity ther€of. Followlng completim
of that portion of theworh all holes or borings construc't€d on the Pnemises by Licensee shall be:
12.3.1 filled in to sunoundlng ground level with compacted bentonlte grout; or
12.3.2 otherwbe secued or retired in accordanoe with any appllcable Legal Requirement. I{o
excamted materials rnay remain on Licensor's property for more than ten (10) daya, butmust be property dlspoeed of by Licensee in airordance wlth applicable Legal
Reguirements.
LNBILTTY AND-INSUMNCE
13. Liabilitvandlndemnification.
13.1 For purpoaes of this Lbense: (a) "lndcmnltee." mean6 Llcensor and Lioenso/s affiliated @mpanios,
partners, suocoEoorc, asslgns, legal representatfueg, officers, directors, sharehoklers, employ€os,
and agents; (b)'Ll$llltlla'means all claims, liabilities, fines, penalties, ccts, damages, Ioss6,
liens, causc of ac[ion, suits, demands, judgments, and expenses (includirp, without limitaton, courl
oosB, reasonable attomeys'fees, costs d lrweatigatlon, remoral and remedhtlon, and govemmental
overslght costs) envlronmental or othenrise; and (c) "Llccnrcc Parties' means Llpnsee or
Licensee's offi@rc, agents, invltees, licensees, employees, or conffiorB, or any p*ty dircctly or
indirecdy employed by any of them, or any party they conbol or exercise conhol over.
13,2 TO THE FULLEST EXIEI{T PERil]TTED BY LAIY, LICEI{SEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEilIilIFY, DEFEND AiID HOLD HAR]TLESS INDE]TNrrEESFO& FROill, AND AGAINST ANY AND ALL LIAEILITIES OF A]{Y IiIATURE, KIND, OR
DESCRIPTION DIREGTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM, OR
RELATED TO (lN WHOLE OR lltl PART):
13.2,1 THIS LICENSE, IilCLUDING, U'ITHOUT LITITATION, ITS ENVIRONXIEiITAL
PROV|S|ONS,
13.2.2 ANY RIG}ITS OR INTERESTS GRAiITED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEES OCCUPATION AT{D USE OFTHE PREMIEES,
13.2.4 THE ENlllROt{lulENTAL CONDITION AND STATUS OF THE PREilIISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OTIISSION OF ANY UCENSEE PARTY.
-4-Fona 4212 R6r. 2014080't
14.
15.
Tracking #1$51862
13.3 TO THE FULLEST EXTENT PERiIITTED BY LAI'U, LICENSEE NOW AATD FORE'T'ER WAIVES
ANY AND ALL CLAIIIS THAT BY V]RTUE OF ENTERIilG INTO THIS LICENSE, LICENSOR IS A
GENERATOR, OWNER, OPERATOR, ARRANGER, OR TMNSPORTER FOR THE PURPOSESoF THE COMPREHENSTVE ENVIRONMENTAL RESPONSE, COMPENSATTON, AND LtABlLnyACT, AS AIUIENDED ("CERCLA") OR OTHER ENVIRONMEIITAL LAWS (DEFINED BELOYU.
LICENSEE WLL INDEMNIFY, DEFEND, AND HOLD THE INDEMNrrEES HARMLESS FROII
ANY AND ALL SUGH CLAIIIIS. NOTHING IN THIS LICENSE IS TEANT BY EITHER PARTY TO
CONST]TUTE A WAIVER OF ANY INDEMNITEE'S COMUON CARRIER DEFENSES AND THIS
LICENSE SHOULD NOT BE SO COI'ISTRUED. lF ANY AGENCY OR COURT GONSTRUES THIS
LICENSE TO BE A WAIVER OF AI{Y lNDElulNlTEE'S COllltlON GARRIER DEFENSES,
LICENSEE AGREES TO rNDEilNrFy, HOLD HARi|LESS, AND DEFEND INDEi N|TEES FOR
ANY LIABIL]TIES RELATED TO THAT CONSTRUCTION OF THIS LICENSE. IN NO B/ENT AS
BETyYEEN LICENSOR AND LICENSEE AS TO USE OF THE PREiIISES AS CONTEiTPLATEDBY THIIT LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR THE
ENVIRONMENTAL GONDITIOI{ OF THE PREiIISES.
13.4 IF ANY EII'PLOYEE OF ANY LICE}ISEE PARTY ASSERTS THAT HE OR SHE IS A1{ EMPLOYEE
OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMTTTED BY LAW, LICENSEE SHALL,
AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, Al{D HOLD THE
INDEMNITEES HARTLESS FROU AND AGAINST ANY LIABILITIES ARISING OUT OF OR
RELATED TO (tN WHO|-E OR IN PART) ANY SUCH ASSERTTON INCLUDTNG, BUT NOT
LII{ITED TO, ASSERTIONS OF EMPLOYiIENT BY AN INDEMNITEE RELATED TO THE
FOLLOWNG OR ANY PROCEEDINGS THEREUNDER: THE FEDERAL EilPLOYERS' LlABlLffYACT, THE SAFETY nppLruCE ACT, THE LOCOMOTwE tNSpECTtON ACT, THE
OCCUPATIONAL SAFEW AND HEALTH ACT, THE RESOURCE CONSERVATION AND
RECOVERY ACT, AiID ANY SMLAR STATE OR FEDERAL STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT
LIABILITIES ARE PROXI'ATELY CAUSED BY THE GROSS NEGLIGENCE OR WLLFUL
MISCOT{DUCT OF ANY INDEMN]TEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES,
INCLUDING THOSE ARISING FROT OR ATTRTBUTED TO ANY OTHER ALLEGED OR ACTUAL
NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ATTIY INDEMNITEE.
13.6 Upon rvri$en notice from Licensor, Licensgg agrees to assumo the defense of any lawsuit or other
proceeding brought against any lndemnitee by any enlity, relating to any matter covered by thls
Licerne for which Licensee has an obllgation to assumo linbility for and/or save and hold harmless
any lndemnltee. Licsnsee shall pay all costs and expenses incident to such defense, induding, butnot limited to, reasonable attorneys' fees, investigators' f€es, litigation and appeal o(penses,
settlement paymentrs, and amounE paid in saUsfaction of judgments.
rf Loss. ALL PERSONAL PROPERTY, lilCLUDlNG, BUT NOT LllullTED TO,., OR RELATED TATERIALS UPON THE PREMISES WILL BE AT THE RISK OF
NO INDEMNITEE WILL BE LIABLE FOR AI{Y DATAGE THERETO OR THEFT
OR NOT DUE !N WHOLE OR lN PART TO THE II|EGLIGENCE OF AtlY
lnsurance. Licensee shall, at its sde oost and expense, procur€ and maintain durlng the life of thb License
the followlng irsurance ooverage:
This insurance shdlcontain broad form contractual liability
a of $2,000,000 each occumenoe and an aggregats limit of
at least $4,000,000 In no event les than the amornt otherwise canied by Licensee. Coverage
must be purchased on a
limited to, the following:
post 2004 ISO oocurrenoe or equivalent and include ooverage for, but n-ot
15.1
. Bodily lnjury and Property Damage
' Personal lnjury and Advertising lnjury' Fire legalliability. Product ard completed operations
This policy shall also contain the following endorsements or language, which shall b€ indicated on
the certificate d insurance;
. The deftnition of lnsured 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.
LICET{SEE ONLY, AND
THEREOF, YV}IETHER
-5-Fom 421; Rcv.201,0801
Tracking #15-51862
. Mdlilonal Insured endorsement ln favor of and acceptable lo Licensor and Jones Lang LaSalle
Brokerage, lnc.' SeParatibn of insureds.. Thb policy shall be prlmary and nonontributlng wtth rcspect to any insurance canied by
Lloensor.
It is agreed that the vtorkere' compensatlon and emplolrers' Iiablllty related exclusions ln the
Commercial General Lhbillty lrsurance policy(s) required herein arc intended b apply to emplolaes
of the pollcy holdar and shall not apply to Licenso/s empbyees.
No other endorsements limiting oovenago may be irrcluded on he policy.
15.2 Business Automobile lnsuranco. Thas insurance shall contain a oombined single limit of at least@coverag€ for, but not limited to the following:
. Bodlly lnJury and property damage.. Any and all vehides owned, used or hired.
This policy shall also oontain the btlouing endorsements, whicfr shall be indlcated on lhe oertiftcaie
of lnzurance:
. Waiver of subrcgation in favor of and acceptable to Lbensor., Additional lnsured endorsement ln favor of and acce@ble to Licensor.. Separation of insurcds.. Thb policy shall be primary and non-oontributirB with respect to any Insumnce canled by
Licensor.
15.3 This insurance ghall include co\rerage
. Llcensees etratutory liability under the workorc' compensation laws of the state(s) in which the
services are to be performed. lf optonal under stab laws, the ingurance must cover all
emploloee anyway.. Em-ployers' LiCbility (Part B) with limlts of at least $600,m0 each amident, $500,000 by disease
policy [mit, $500,000 by dbease each emplope.
This policy shall also contain the follorving endorsements or hnguage, wltlch shell be indicated on
ttp certificate of insurence:
. Waiver of subrogation in favor of and acceptable to Licensor.
This insurance shall name onlv Licensor as the lrsured with
oove]ege locg. r nls nsurance snafl name ofly LEensor as me lnsun9o wfin
per o@urrence and $6,000,000 in the aggregate. The coverage
15.4
obtainel under this poliry shall ohly be dec{irre during the lnitial installatioi and/or constructlonbf
the Electric Suoolv Line. THE CONSTRUCTIOT{ OF THE ELECTRIC SUPPLY LlilE SHALL BEtn€ Electrlc suDolv Ltne. IHE g9ll:ril(u(;TKrlt (,F tltE ELEgtt$G SUI,PLY L[rE n]rALL nE
cotPLETED hlrfHN OilE (1) YEAR OF THE EFFEGTn E DATE. lf turther maintenance sf the
Elecfic Supply Line is needed at a later date, an addltional Railroad Protective Lhbility lnsunanco
Policy shall be required. The poliry shall be issued on a standard ISO form CG 00 35 12 03 and
include the following:
. Endorsed to irnlude the Pollution Exclusion AmendmenL. Endorsed to include the Limited Seepage ard Pollution Endorsement.. Endorsed to indude Evacuation Elgense Coverage Endorsement., No other endorsemonts restrictlng ooveragp may be added.. The original policy musi be provitled to Licensor prlor to performing any work or services under
this License.. Definition of "Ph16ical Damage to PnoperV' shall be endorsed to read: "moans direct and
aocldental loss of or damage to all property ormed by any named insured and all property in any
named insured's car€, custody and control adsing out of the ac{s or omlssions of the contractor
named on the Declaratbns."
ln llan of provldlng a Rallrcad Protective Liability Policy, for a period of one (1) par ftom the
Effective Date, Licensee may participate in Licenso/e Blanket Railroad Prcbctive Liablllty lnsunanoe
Policy available to Licensee or its confactor. The llmlb of coverage are the same as above. The
coet is $460.
-0-Fom 421; Rw.201'0801
Trad<ing #1$51862
tr I elec-t to participate ln Licensor's Eanket Polby;
o I elec.t not to participate in Licenso/s Blanket Policy.
15.5 OtherReouirements:
15.5.1 Where allorable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
15.5.2 License€ agrees to waive its right of recovery against Licensor for all claims and sults
against Licensor. ln addition, Licensee's insurers, through tha terms of the policy or a policy
endolsernent, muEt waivs their dght of sublogation against Licensor for all claims and suits,
and the cerfificate of insurance must refleet the uaiver of subrogation endorsement.
Licensee further waives its right of recovery, and its insurers must also walve their right of
subrogation against Licensor for Ioss of Licensee's orned or leased property, or propefi
under Licensee's care, custody, or control.
15.5.3 Licensee is not allorcd to self-insure without the prior written consent of Llcensor. lf granted
by Licensor, any self-insured retention or other financial responsibility for daims shall be
covered direcdy by Licensee in lieu of insurance. Any and all Licensor liabilitiee that would
otherwise, ln accordance wlth the prcvisions of this License, be correred by Lkrnsee's
insurance will be covered as if Licens€€ elected not to include a self-insured retentbn or
other financial responsibility for claims.
16.5.4 Prlor to enterlng the Premises, Licensee shallfumish to Licensor an accepbble certificat{s)
of insurance including an original signature of the author2ed representative evidenclng the
required coverage, endorsements, and amendments. Licensee shalt notiFy Lioensor in
writing at least 30 dayts pior b any cancellation, non{enewal, substitution, or material
alteration. ln the event of a claim or lauouit involving Licensor arising out of this License,
Licensee will make available any required pollcy covering such claim or larvsult.
15.5.5 Any insurance policy shall be unitten by a reputable insurance company acceptable to
Licensor or with a current Best's Guide Rating of A- and Class Vtl or better, and authorized
to do business in the state(s) in whlch the senrice is to be provlded.
15.5.6 lf coverage is purchased on a "claims made' basis, Licensee hereby agre€s to maintain
@verage ln force for a minlmum of thlee years after expiration or termination of this License.
Annually, Licensee agrees to provide evidence of such coverage as required hercunder.
15.5.7 Licensee represents that his License has been thoroughly revieryyed by Licensee's
insurance agent(s[broke(s), who have been insbucted by Licensee to proolre the
insurance coverage required by this LicenEe. Allocated Loss Expense shall be in addition to
all policy limib for ooverages referenced abovs.
15.6.E i.lot more frquently than once every five years, Licensor may reasonably modify the
requiled insurancs covenage to reflect then+unent rlsk management praoticeo in the rallroad
industry and underuriling practirs in the insurance industry.
15.5.9 lf any portlon of the operation is to be subcontracted by Llcensee, Licensee shall rcquire that
the subconbactor shall proride and mairrtain imurance co\rerEgl€s as set forth hereln,
naming Licensor as an additbnal insured, and shall require that the suboontactor shall
release, dsfend and indemniPy Licensor to the same extent and under the sarne terms and
conditions as Llconsoe is rcquired to release, defend and indemniff Licensor herein.
15.5.10 Failure to provide evidence as required by this Section 15 shall entitle, but not require,
Licensor to terminate this License immedhtely. Acceptance of a certificate that does not
comply wlth this Seetlon shall not operate as a waiver of Licersee's obligntions hereunder.
Fsrn 421: Rar. 20140801
Trad<lng #15{1E62
15.5.11 The fac{ that insurance (including, wihout llmitatlon, self-insurance) ls obtained by Liensee
shal! not be deemed to mlease or diminlsh the llability of Licensee, including, wtthout
llmltatlon, liability under the ln<lemnity provlslons of this Ucgnse. Damages recoveraUe by
Uceneor shal! not be limited bythe amount of the rcquired lnsutence cov€rage.
15.5.12 These lnsurance provislons are lntended b be a separate and dbtinct obligation on the parl
of the Lioensee. Thelsfore, these proriaircns shall be enforceable and Llcensee slpll be
bound thereby regardless of vuftether or not indemnity prwisions are determined to be
enforceable.
15.5.13 For rurposes of thb Seston 15, Licensor shall mean 'Burlingrton I\,lorthem Santa Fe, LLC',
"BNSF Railway Companf and the subsidlarles, srrooessors, asslgns and affilifrs of each.
GOM PLIAI{GE wlTH LAWS. REG U LATTONS. AN p ENVIRO}I]U! ENTAL TATTERS
10. Comoliance with Laws. Rules. and Reoulations,
16.1 Llcensee shall obs6\re and comply with any and all laws, stafubs, regulations, ordinances, orderB,
oovenants, rcsficrtions, or decbions of any court of oompetent jurisdic{ion ('Legal Raqulrcments')
relatlng to ths oonstructlon, malntenanca, and use of th€ Elocfb Supp'ly Line and $e use of the
Premises.
16.2 Prior to entering the Premises, Uconsee shdl and shall cause its contsacto(s) to comply with all of
Llenso/s applicable ssfety rules ard regulations. Licensee must ensurt that mh of its ernployeec,
@nbactol€, agenta or irwitees enteing upon the Prembeo oompletes the sefety orlentatlon program
at the Website hwv.BNSFcontsacbr.com" (the'Safuty Orlont*lon") wlthln one year prior b
16.3
enteing upon the Premis6. AdditionalV, Licem€o must ensure that each and wery employee d
Llcanseo, lte confactors, agents and invitees pcEoss a card oertifiing oompletbn of the Safety
Orientation prlor to enhring upon the Premlsea. Lipnsee must rcneur the Safety Odentation
annually.
Llcensee shell obtaln on or before the date lt or lb conbadr onters the Prembes, any and all
additftcnal righb.d way, eassnonts, licenses aM other agrsements relatng to the grant of rlghts and
inbresb in and/or aooess to the Premises (colledhdy, the 'Rlglrtr') and suc{r otlrcr rlghts, lienses,
permlE, anthoriatione, and approvals (lncluding wi$rout limltatlon, any neoe$ary local, sHe,
fedqal or flbal authorlzations and environmential permlts) that are neoessary in order to permft
Licensee to construc't, malntaln, orn and operaE the Elec'trlc Supply Llne and otheruise to perbrm
its obligatbns hereunder in accordance with the terms and cordltlons hereof.
Lloensee shel! elther require lhat the initial stated term of each such Rights be for a friod that does
not exple, in accordance with its ordlnary terms, glor to the lasl day of the term of thls License or, if
the initial shted term of any suctr Right expiree ln accordance wlth lto ordlnary terms on a date
earlier than the last day of the term of thb LicenEe, Licansee shall, at its cost, exercbe any renevual
rlghts thereunder, or ottrenrvise acquirc guch extensions, additions and/or redacements as may b
neqE8sary, in order b oause the stated term thercof to be contnued untll a date that is rrct earlier
than the last day of the term of thb License.
Upon the otplration or termination of any Rlght that is necessary in order fior Licensee b own,
operate or use the Elec'tric Supply Llne in accordanoe wlth the tsrns and condltions of this Liconse,
thls Lhense thereby shall automatically expire upon sucfr ogkation or termlnatlon of the Rlght.
17. Erwironmental.
17.1 Lkrnsee shal! strictly comply with all f€dsral, state and loca! envlronmental Legal Requlremente and
regulations in ib uge of the Prembes, induding, but not llmlted to, the Resouroe Conseruation and
Reovery Act, as amended (RCRA), the Clean Water Act, the Oll Pollution Act, the Haardous
Materidg Transportatlon Act, and CERCI-A (collecdvely rEfer€d to a the Envipnmental l-em").
Llcensee ehall not maintain a treatmenL sbragg, transfer or dlspooal facility, or underground atorage
16.4
16.6
Fom 421; R6rr.20140801
Tracklng #15-51862
tank, as defined by Environmental Larla on the Premises. Licensee shall not release or suffer the
release of oil or hezardous substiances, as defined by Envimnmental Larrvs on or about the Prernises.
17.2 Licensee covenants that it will not handle or transport "hazardous ueste' or 'hazardors
substan@s", as "hazardous waste" and "hazardous substan@s" may now or in the future be defined
by any federal, state, or local governmental agency or body on the Premises. Licensee agrees
perlodlcally to fumish Llcensor 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 Licensor's Resource Operations Center at (800)
832-5462 of any known (l) release of hazardous substances on, fnm, or affecting the Prcmises, (ii)
violation of Environmental Laws, or (iil) inspec'tlon or inquiry by governmentral authorities clrarged
wih enforcing Environmental Laws with respect to LicEnsee's use of the Premises. Llcensee shall
use the best efforts to prompty rcspond 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, r€mediate, respond to or othenruise cur6 such releage or violation.
17,4 lf Licensor has notice from Licensse or othenrise of a release or violation of Environmental l-aws
arislng ln any way with respect to the Elec{dc Supply Line which occured or may ocarr during the
term of this License, Li@nsor may require Lioengeo, at Licensee's sole risk and expense, to tiake
timely measures to investigate, remediate, respond to or otherwlse cure such release or vidation
affecting the Premises or Lioenso/s righhof-way.
17.5 Licensee shall promptly report to Lkpnsor ln writng any conditions or mtivities upon the Premises
known to Licensee which create a risk of harm to peroons, proporty or the envircnment and shall
take whatever action is neoessary to prevent injury to persons, property, or the environment arising
out of such conditions or ac{ivities; provided, horuever, that Licensee's reporting to Licensor shall not
relieve Licensee of any obligation whaBoever lmposed on it by this License. Licensee shall prompfly
respond to Licsnso/s request for information regarding said conditions or activities.
DTSCLATMER OF WARRANTIES
18. No Warranties.
1E.1 LICENSOR'S DUTIES AND WARMilTIES ARE LITITED TO THOSE EXPRESSLY STATED !N
THIS LICENSE AT{D SHALL NOT INGLUDE ANY IMPUED DUTIES OR ITIPLIED WARRANTIES,
NOWOR IN THE FUTURE. NO REPRESENTATIONS ORWARRANTIES HAVE BEEN IIADE BY
LICENSOR OTHER THATTI THOSE GONTAINED !N THIS LICENSE. LICENSEE HEREBY
wAtvEs ANY AID ALL WARRANTTES, EXPRESS OR mPLtED, wlTH RESPECT TO THE
PREmBES OR WHICH tAY EXIST By OPERAT|ON OF LAW OR tN EQUITY, INCLUDING,
WTHOUT LIUITATION, AIIY VYARRANW OF MERCHANTABILITY, HAB]TABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
18,2 LICENSOR MAIGS NO WARRANW' REPRESENTATION OR CONDITION OF ANY K!ND,
EXPRESS OR ITPLIED, CONCERNING (A} THE SCOPE OF THE LICENSE OR OTHER RIGHTS
GM0{TED HEREUNDER TO LTCENSEE OR (B) WHETHER OR NOT LTCENSEEts
CONSTRUCTION, MAINTENAilCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC
SUPPLY LINE WILL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES
oF THTRD PART|ES, INCLUDING, WTHOUT LtiilTATION, ANY LEASES, USE RIGHTS,
EASETENTS AilD LIENS OF ANY THIRD PARW.
19. Disclaimer of Warrantv for Quiet Eniormrent. LICENSOR DOES NOT WARRAilT ITS TITLE TO THE
PREMISES NOR UNDERTAIG TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVEI{ANT OF QUIET ENJOYMENT IS MADE.
20. Evlction at Risk of Licenso€. ln case of the eviction of Licensee by anyone ouming, claimlng title to, or
daiming any inteeet in the Premlses, or by the abandonment by Licensor of the afrected rail conidor,
Licensor shall not be liable (i) to refund Licensee any @mpensatlon pald hereunder, except for the pro{ata
-0-Fom121; Rcv.20140$1
Trackhg #1#1E/J,2
p€rt of any rccurrang charge paid in advance, or (il) for any damage Licensee sustiains in connectlon with the
evlc-tion.
LIENS AND TN(ES
2',. Llens and Charoes. Lieensoe shall prompUy pay and discharge any and al! llens arisirB out of any
construction, altelations or r€palrs done, sufrered or permltted to be done by Licensoe on Prembes.
Licensor is hereby authorized to post any notices or take any other action upon or wlth respec't to Premlses
ttut is or may be permitted by law to prcvent the attacfiment of any such liens to Plemis€s; p:ovlded,
hourover, tlnt fallure of Llceneor to take any such action shall not relieve Licensee of any obligafion or liabillty
under this Soc{lon 21 or any other Sectbn of thls Liconse.
22. Taxes. Licensea shall pay when due any taxes, ass€ssments or other chargps (collectively, Taxe) levled
or assessod by any governmental or quasigowrnmental body upon the Electlc Supply Line or any other
impovemenb constructed or lnstalled on tp Premlsea by orfor Licensee (colledively, the 'lmprcvemcntr')
or any Taxes levied a assessed agalnst Licensor or the Premises that are attributable to the lmprcvements.
DEFAULT. TER]f, INATION. AND SURRENDER
23. Default and Termination. ln addition to end not in llmltatlon of Llcensor's right to terminate for failure to
provide evidence of insurance as required pursuant to the terms of Soctlon 15, the fdloring eventE are also
deemed to be ewnts of default pursuant to wtrich Licensor hm the right to brmlnate a set furth belor:
23.1 lf default shall be made ln any of Lioensee's covenants, agreements, or obligations contained in this
License and Licensee falls to crle said default within thirty (30) daf der rrrltten notce ls provHed
to Licensee by Licensor, or in cae of any assignment or transfer of thb License in violation of
Sec'tion 26 below, Lloensor may, at lE optlon, terminate thb Licenee by serving five (5) days' notice
in writing upon Licensee. Notwithstandlng the foregolng, Lioensor shall have the right to terminate
this License immedhtely if Licensee fails to provlde evUence of insurance as requlred ln Sec{lon 15.
Should Uoensee not comply fully wlth the obligations d Sr{lon 17 regading the handling or
tsansporting of hazardous waste a hazardous materid, nohrithetardlng anything contained in any
other provision of this License, Licensor may, at its option, terminate this Licensa by serving five (5)
days' notice of terminaUon upon Licensee.
Any waiver by Licensor of any default or dsfaulF shall not oonstltute a watuer of the right b terminato
this License for any subsequent default or dsfaults, nor shall any such waiver ln any way affecl
Lioenso/s ability to enforce any Section of this License. The remedy sst ffih in this Scc'tion 2!l
shall be ln addlUon to, and not ln llmitafon of, any other rernedies that Licensor may have at law or in
equity.
ln addlton to and not in limitation of Lioenso/s rights to tarminate this License for failure to provide
evitlence of lnsurance or oocurronce of defaults as described abov€, this Licerce may be terminated
by either party, at any time, by serving thirty (30) days' rvrltten notice of brmination upon the other
party. Srch termination shall not rclease either party hereto from any liability or oblBatlon under the
License, whether of indemnity or othenvise, rosulting from any ac'ts, ornissions or events happenirg
prior to the date of termlnatlon or therefrer ln case by the terme of the License it is provided that
anything shall or may be done der terminatbn hereof.
23.2
23.3
23.4
Sunender of the Prefnises.
24.1 On or before expiration or termination of this License for any reason, Licensoe shall, at lts sole coet
and expense:
24.1.1 if so dlrectad by Lioensor ln wrltlng, rcmove the lmprorcments, the Electric Strpply Line and
all appurtenances thereto, or, at Sre sole discrotion of Llcensor, approprlately decommlssion
the Electric Supply Line with a method satisfactory to Licensor;
-10-F otm 421 ; Rev. 2014{1801
24.2
24,3
Tracking #'lffi1E62
24.1.2 report and rostore any damage to the Premises or Uoenso/s other property arising ftom,
growing out of, or connected with Licansee'a 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.
Upon any expiration or termination of this License, if Llcensee fails to sunender the Premises to
Licensor or lf Licensee fails to complete its oHigations under Sec'tlon 4.1 abwe (the "Restoratlon
Obllgatlonc"), Llcensee shall have a limited license to enter upon the Premises solely to the extent
nsoossary for Licensee to complete the Restoration Obligations, and all liabilities ard obligations of
Licensee hereunder shall continue in effect until the Premlses are surrendered and the Restoration
Obligations are completed. Neither termination nor expiration shall release Licensee fmm any liability
or obligation under this License, whether of indemnity or othenrise, resulting frcm any acls,
omissbns or events happening prior to the date of terminalion, or, if later, the date when Licensee
sunenders the Premises and all of the Restoration Obligations are completed.
lf Licensee fails to complete the Restoration OHigations within thirty (30) dayr after the date of such
termination of lts tenancy, then Licensor may, at ils elec{ion, eithor: (i) remove the Electric Supply
Line and the other lmprovements or othenuise restore the Premises, and in such event LicenseE
shall, within thirty (30) days after rcceipt of bill therefor, reimburce Licensor for cost incuned, (ii) upon
urritten notice to Ucense€, take and hold the Elec'tric Supply Line and the other lmprwements ard
personal property as its sole property, without payment or obtigation to Licensee therefor, or (iii)
specilically enforce Licensee's obligation to restore and/or pueue any remedy at law or in equity
against Licensee fior failure to so restorc. Further, if Licensor has oonsented to ths Elocfb Supply
Line and the other lmprovemenb remaining on the Premiseo following termination, Licensee shall,
upon request by Lloensor, provide a bill of sale in a form acceptable to Licensor oonveying the
Electric Supply Line and the other lmprovements to Licensor.
25.
MISCELLAT{EOUS
Successors and Asshns. All provlsions contalned in this License shall be binding upon, inure to the benefit
of, and be enforceable by the respective suocessors and asslgns of Licensor and Licensee to the same
extent as lf each such successor and assign was named a party to this License.
Assionment.
26.1 Licensee may not sell, assign, tsansfer, or hypothecate this Licenso or any rlght, obligation, or
interest hereln (elther voluntrarily or by operation of law, merger, or othendse) without the prior
written @nsent of Licensor, which consent may not be unreasonably withheld or delayed by
Licensor. Any attempted assignment by Licensee ln violation of thls Sec-tlon 26 shall be a breach of
this License and, in addition, shall be voidable by Lir:ensor in its sole and absolute discretion.
28.2 For purposes of this Ssc{ion 28, the vrord "assign' shall include without limitation (a) any sale of the
equlty interests of Licansee following which the equity intereot holders of Licensee lmmediately prior
to srrch sale or,rrn, direcdy or indirectly, less than 50% of the combirpd voting povvor of the
outstandlng voting equlty interesb of Licensee, (b) any sale of all or substantially all of the asseb of
(i) Licensee and (ii) to the extent such entities odst Licensee's par€nt and subsidiaries, taken as a
whole, or (c) any reorganization, recapitalization, morger or conEolidaton involving Lioensee.
Notwithstanding the foregoing, any reorganization, recapitalization, merger or consolidation following
rilhictr the equity interest holders of Licensee immediately prior to sucfr reorganization,
recapitalization, morger or consolldation own, directly or indlrectly, at least 50% of the oombined
voting power of the outstarding voting equity interests of Llcense€ or any suooess(r thereto or the
entlty resulting from such reorganization, recapitalization, msrgtsr or consolidation shall not be
deemed an asslgnment. THIS LTCENSE SHALL NOT RUN WITH THE LAND WITHOUT THE
EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN LICENSOR'S SOLE
DISCRETION.
Form421; R6\r.201{801
27.
Tracking #1S51862
26.3 Notrvithstranding the provlslons of Sectlon 26.1 above or anything oontained in this License to tho
contrary, if Llcensee sells, assigrs, transfiors, or hypothecates this Lbense or any interesl hereln in
contmvention of the pmvisiona of thls Licsnse (a 'Putpoiled Asclgnment') to another party (a
"Purported Truneficrpe'), the Purported Transferee's enjoyment of the rights and prfulleges granted
under this Liceneo shall be deemed to be the furported Trangferee's agreement to be bound by all
of the terms and prwisions of thig U@nse, Including but not limitd to 0e obligation to comply with
the provieions of Sec{lon 15 above concernlng Insuranoe requiremenF. ln addltion to and not in
limitatlon of the foregoing, Licensee, for ibelf, its succossors and assigns, shall lndemniff, defend
and hold harmless Licensor for al! Liabilitles of any nature, kind or descripton of any p€fison or entlty
dlrccfly or lndirccdy arising out of, resulting ftom or r€lated to (in whole or in part) a Purported
Assignment.
26.4 The prwisions of thls Sec'tlon 26 sha!! survive the expiration or earller termination of thls License.
Noticee. Any notice, inrrolce, or other writlng required or permffied to be given hereunder by one party to the
other shall be in witing and the same shall be given and shall be deemed to have been served and given if
(i) placed in the United States mail, certifted, retum reoeipt requestxi, or (ii) depoeited into the custody d a
natlonally recognized ovemight delivery sorvkle, addressed to the party to be notified at the address for suci
party specified below, or to guch other addrcss as the party to be notified may deslgnate by giving the offier
party no less than thirty (30) days'advance unitten notlce d sucfi change ln address.
lf to Licensor:Jones Lang LaSalle Brokerage, lnc.
4(D0 Amon Carter Blvd., Suite 100
FortWorth, TX 76155
Ath: Permibllkpnses
BNSF Railway Company
2500 Lou Menk Dr. -AOB3
Fort Worth, TX 70131
Ath: Senior Manager RealEstate
PacifiCorp
825 NE Multnomah Street
Suits 1700
Portland, OR 97232
with a copy to:
lf to Licensee:
$urvival. Nemrer t€rmination nor expiratim will release either party fom any llabillty or obllgatlon under this
LloenEe, wtrether of indemnity or othervise, resulting from any acts, ombsions or events happening prior to
the date of termlnatlon or expiratlon, or, if later, the date when the Electric Supply Line and the other
lmprwements ars removed and the Premises are restored to lts condltion as dthe Efrective Date.
Recor{alion. lt is understood and agreed that this License shall not be placed or allowed to be placed on
public record.
Aoolicable Law. All questions @nceming the interpretation or application of provbions of thb Llcense shall
bs d€cidod according to the substantive lawe of the State of Texas without rsgard to conlllcts of larv
provisbns.
Severabilitv. To the maximum extent possible, each provision of ihis License shall be interpreted ln such
manner as to be efiective and valid under applicabls law, but if any provbion of this License shall be
prohibited by, or held to be lnvalld under, applicable law, such pmvision shall be ineffecffve sdely b the
extent d such prohibition or invalidity, and thls shall not invalldate the remainder of such provision or any
other provision of this License.
lnteoration. This LlcenEe is the full and complete agreement between Licensor and Licensee with recpecl to
all matterc relating to Licensee's use of the Premigeg, and supersed€s any and all other agreemenb
between the parties hereto relating to Licenses's use of the Premises as described hereln. However, nothing
29.
31.
32.
- 12-
Fonn 421: Rcv. 20'1t10801
33.
35.
Traellng #1561862
herein is intended to terminate any surviving obligation of Licensee or Lipnsee's obligation to defend and
hold LicenEor harmless in any prior uritten 4reement between the partles.
Joint and Several Liabilitv. lf Licensee consisb of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreemenb of such parties.
Watuer. The waiver by Licensor of the breach of any provision herein by Licensee shall ln no way lmpalr the
rlght of Licensor to enforce that prcvision for any subsequent breach thereof.
lnteroretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party
based upon the souroo of the drdsmanship; both parties hereby agree that this License shdl not be
subjec't to the principle that a contact would be construed agalnst the party which drafted the same.
Artide titles, headings to sections and paragraphs and the table of contents (if any) are inserted for
oonvenienoe of referenoe only and are not intended to be a part or to afiect the meaning or
interpretation hereof. The exhibit or exhibits refened to herein shal! be conshued with and as an
integral part of this Lioense to the same extent as if they w6r€ set forth verbatim herein.
35.2 As ueed herein, 'include", "includes' and "including" re deemed to be followed by '\uithout
limitation' whether or not they are in fact fdlowad by such vrords or words of like import; 'Uriting',
'Vriften" and oomparable terms refer to printing, tlping, lithography and other means of reprcducing
words in a visible form; references to any porson are also to that person's suooossolr and permltted
asslgns; 'hergofl, "herein', "horeunde/' and comparable terms refer b the entirety hereof and not to
any particular articla, sec'tion, or other suMlvlslon hereof or attachment hereto; referen@o to any
gender include rerferences to the masculine or feminirp as the context requirqs; references to the
plural lnclude the singular and vice verEa; and refererrces to this License or other documents arg as
amended, modified or supplemented ftom time to time.
Countemarts. This Lbense may be executed in multiple counterparts, €ach of which shdl, for all purposes,
bE deemed an origlnal but which together shall constitute one and the same instrument, and the signafure
pages from any counterpart may be appended to any otrer counterpart to assemble fully executed
documents, and counterparb of thb License may also be exchanged via emall or elec{ronlc facslnile
machlnes and any email or elec{ronic facsimile of any party's signature shall be deemed to be an origlnal
signature for all purposes.
Licenso/s Reoresentative. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF Railway
Company.
END OF PAGE - SIGNATURE PAGE FOLLOWS
37
Form 421: Rev.20140801
Trackkrg #15{1862
Thls Llcense hae boen duly executed by the parfoe hereto as of the @te bdow each parly/s signature; to be
gffec'tive, hoilBv€r, as of the Effec{lve Date.
LICENSOR:
BNSF RAILWAY COIIPANY a Delaware corporation
By: Jones Lang l-aSalle Brokerage, lnc.,
43fl) Amon Carter Blvd, Sufie 100
FortWorlh, TX 76155
Ed DarterTiUe: Sr. Vice PrEsident - NationalAccounb
LIGENSEE:
PACIFICORP an Onegon corporation
By 825 NE Multnomah Street
Sulte 1700
Porfland, OR 97232
By
Title:
Date:
-14-Fom'lill I Rev. 201,0E01
COORDIMTE SYSTEM: OR S TRACKTNG NO. 1rs1862
(ol@lrotNIEl
tdUI
G,c
=
EXHIBIT'A''
ATTACH ED TO CONTMCT BETI,EEN
BNSF RAILWAY COMPANY
AND
N
PACIFICORP
SCALE:1 lN.= 100 FT.NORTHWEST DIV SECTION: _'17TOllVi.lSHlP: 40S
RANGE: 10E
MERIDIAN: WILM
GATEV\AY SUBDIV.
L.S. 0055 MP: 9.89
DATE OlnTnUs
\\
t'9 \t
\t r\',. 1\- .\
\\,!\r,r\r.rs
\a.
i *--:\..\l
t" -\{'r"$t -:F
c '\r --o
-"8.j"W,1.' .
r
DESCRIPTION OF WIRES OVER TRACK
WRES LOCATED AS SHOWN BOLD
TYPE
ELECTRIC
NUMBER VOLTAGE
DISTANCEABOVE
TOP OF RAIL
CLEARS RAILWAY
COMPANYSWRES
N/A412 KV 33'
STATE OF OR
NEAR MERRILL
COUNTY OF KI.AMATH JNC
DRAWNG NO.62941
foxrs Lrnc
LTSTLLE.
Jones Lang LaSalh Amerhas, lnc.
4iX)0 Amon Carter Blvd, Suib lfi)
FoilWorfi, Texae 76155
tel +1 817-23&2600
far+181730&8265
Februaryg,2015
Pacificorp
Afientlon: Mr. Scott Mease
825 N Multnomah Sheet
Suite 1700
Porthnd, OR 97232
Dear Mr. Mease:
1ffil863
Attached please find a copy of the requested oontract for execution by an official authorized to otecute contrac't
agrsements on behalf of lour oompany. Please fint tuvo (2) colres execute and Wodolnd *nafrtn br complslion on part of BNSF Ralluay Company fBNSf) b thb office, along wih the
folloring requirements:
o A check in the amount of $3500.00 payable to BNSF Railway Gompany wtrich covers the contract
fee(s).
Please note the agreemente cannot be executed by BNSF without an approved lnsuran@ certlflcate. lf there
ara any issueE wtth your insurance, you will be contated by a member of the Riek Management bam of BNSF
Ralluay.
1. A Certificate of lnsurance as requircd in the agleement.
2. A reparate pollcy for Rallroad Protective Liability lnsurance as required in the agreement (ORlGlltlAL
POLICY ISUST BE PROVIDED). BNSF Rallway Company wlll be the only insured party; OR;
In lleu of providlng a ecparate pollcy for Railrcad Prctective Llablllty ln3urancc, you may participate in the
BNSF'o Railroad PrcEctlve Policy by ched<lng he appropriate box in the conhact and including an addltional
$,160.00 with your check.
PLEASE ADVISE !F THIS PR(UECT IS ARRA FUilDED.
Acceptance and deposit of arry check by BNSF does not oonstltute an agreoment betucen BNSF and Lkpnsee
for the requested license. BNSF shall not be oUigated b hold the check in a separate fund, but may commingle
the funds wlth otherfunds d BNSF, and in no event shall BNSF be responsible for interest on said funds.
The erclosed permit is not a binding agrsomont and shall become bindlng only when, and it it is exeoled by
you and fully approved and exeo.rbd by Bi€F Railutay Gompany. Upon completion on behalf of BNSF, one
fully exeorted counbrpart wlll be return€d for your records.
Thc rpeclflcrtlonclplanr you prcvldcd m.y dlfrer frcnr BNSF'e mlnlmum speclflcetlon
mquiroments. Theioforc, prior to your lnrtallation, pleaee rcvlew the Exhlblt A to dctermlne the
rpccifi catlons n.ooaaary for your i nctallatlon.
Please be informed that if contrac'ts, fees, and insuranoe are not retumed wlthln slxty (@) days, the processirp
fee wlll lngease to $1500.00.
Sincerdy,
@.arina Ma/aur
Kaflne Salazar
Associate Manager Perm lts
Attachment
Tnacking #1ffii863
(Elecric Light, Power Overhead or Underground)
THlsLlcENsEFoRELEcTRlcsUPPLYLlNE('LlcenEe',)lsmadetobeeffectlve-,n15,
1.Grant of License. Licensor hereby grants Llcensee a non-exdusive license, subjec{ to all rights, lnterpsb,
arx, ffiE-fthlrd parties, including, wtthout limitation, any leases, use righb, easemenB, liene, or oth€r
erutmbrancss, and'upon the terme and conditions set forth belop, to constuct and maintaln, in stsict
accordence with the drmtings and specifications approved by Llcensor as part d Lioensee's applicdon
proosss (the 'Drulngr anii Spcclflcdbns"), an electric supply line containing_ a- maxim_um { fogr (_!)
ionducrtois, together [,ith itB supporting or containing stsuctrres (collectively, the "Elecilrb Supply Llnc"),
across or along Licenso/s rail conidor at or near the station of Menill, County of Klamath, State of Oregon,
Line Segment 0055, Mile Post 10.30, ae sho,l,n on the atbched Drawing No. 62942 dated Januay 27,?IJ15,
atEcheil hereto as Erhlbit'A'and incorporated herein by reference (the "Prernirec').
Term. This U*nr"-"n"[ commence on the Efiec*ive Date and shall oontlnue for a period of twenty-five (25)yilrs, subject to prior termination as hereinafter described.
Exlstino lmorovements. Licensee shal! not disturb any improvements of Licensor or Licenso/s exlstlngffisementbenefichdesorlienhi,Ider8,ifany,orinterferewlththeuse,repair]
maintenance or replacement of such improvemenls.
4. Use of the Premises. Licensee shall use the Premises solely for construction, maintenance, and use of the
ElectiiETupplrTine in accordance with the Dmwings and Speclficatlons. Licensee shall not use the
Premises for any other purpose.
5. Allerations. Except as set forth in this License, Licensee may not make any alteratlons to the Premises or
ffianen-ity affix'anything to the Premlses or any buildings-or otlrer stsuctures adiacent to the Premises
without Licenso/s prior wrltten oonsent.
COMPENSATION
(the 'Eflbctlve Datc") by and betwe€n BNSF RAILWAY COIPANY, a Delawae oorporation ("Llcenrof) and
PACIFiCORP, an Oregon corporation ('1-icensee').
ln consideration of the mutual @vonanE contained hereln, the partles agre6 to the folloring:
GENERAL
Uoense Fee. Licensee shall pay Liensor, prior to the Effective Date, the sum of Three Thousand FiveffiiEiitnd No/1OO Dollars ($e*01 as comfensation for the use of the i,rembes.
Costs and Exoenses.
7.1 For the purpoee of this Licenso, '@st' or'@sts" and "expense'or "expgnses' indudgs, but is not
limited tq actual labor and materialcosts induding all assignaHe addltlves, and materhland supply
costs at cunent value where used.
7.2 Licensee agr€es to reimburse Licensor (pursuant to the terms of Sec{lon E below) for all msts and
expenses incurred by Licensor in connection with Licsnsee's use of the Premlses or the presence,
consbucUon and maintenance of the Electfic Supply Llne, including but not limited to the furnishing
of Licensor's flaggers and any vehicle rcntal costs incuned. Licensee shal! bear the cost of fiagger
senrices and other safety measures provided by Llcensor, when deemed neoessary by Licensor's
representrative. Flagging costc shall include, but not be limited to, the following: pay for at least an
eaght (8) hour basic day with time and one-half or double time for overtime, rest days and holidaya
(as applicable); vacation allouanoe; pald holldays (as applicable); railway and unemploy,ment
insuranoe; public liability and property damage insurance; health and urclfare benefits; transporhtbn;
meals; lodging and supervision. Negotiations for nailway labor or collective bargainlng agreements
and rate changes authodzed by appropiate Federal authorities may increase flagging rates.
Flagging rates in effec{ at the time of performance by the flaggers will b6 used to calculate the
flaggirB costs pursuant to this Sectlon 7.
3.
7.
-1-Farm 421: Rev.20l,O801
Tnacking #1561863
L Pavrnent Terms. All invoices are due thirty (30) days after the date d involce. lf Licensee fails to pay any
monies due to Licensor wlthin thirty (30) days after the invoice date, then Licensee shall pay interest on'such
unpaid sum from the due date untll paid at an annual rate equal to the lesser of (i) the plme rate last
rublbhed ln The Wall Steet Joumal in the prcceding December ph.s tr,rrc and one-half percent (2-1l2Yol, or
(ii) the maximum rate permitted by law.
LICENSOR'S RES.ERVED RIG HTS
g.Ree,prve4 Riohts of Upe. Licensor exc€pts and reserves the righ[ to be exercised by Licensor and any other
parties who may obtain written permission or authority from Lirpnsor:
9.1 to maintain, uso, operato, repair, rBplace, modfy and relocate any utility, povyer or communicatkrnpi@lines/cables and appurtenances (other than the Electric SuFply Line) and other facilities or
structures of like character upon, over, under or acfi)ss the Premises existing as of the EffecUve
Date;
9.2 to construct, maintain, renew, use, operate, changg, modify and relocate any tracks or additional
facilities, structures and related appurtenanc* upon, over, under or across the Premises; or
9.3 to use the Premises in any manner as Licensor in lts sole discretion deems appropriate, provided
Licensor uses all commercially reasonable efiorts to avoid material interference with the use of the
Premises by Llcensee for the purpose specified in Sectlon 4 above.
Rioht to Reouir.e Relocatbn. tf at any time during the term of this License, Licensor desires the use of its rail
corridor in such a manner ae v'rould. ln Licenso/s rcasonable ooinlon. be interfeled with bv the Electsicas uoulil, ln Licenso/s reasonable opinlon, be interfeled with by the Electic
, at its sole expense, within thirty (30) days after receiving written notica ffomSupply Line, Licensee shall, at its sole exponse, {thin thirty (30) days after receiving writteh notica ffomuuppty Lrne, Lrc8ngee snalt, at lT8 sole exponse, wmn mrty (5u) oays aner rgoeMng wnllen nollce Irom
Llcensor to such effec{,, make such charBes in the Electric Supply Line as in the sole discretlon of Llcensor
may be neoessary to avoid interference with the orooosed use of Llcensor's rail corridor. indudino. withoutmay be neoessary to avclid interference with the proposed use
limitiation, the relocation of the Electrlc Supply Line, or the conrEbcfb Supply Line. Notwithstanding the foregoing, Licansee
10.
limltation, the relocation of the Electrlc Supply Line, 6r the construction of a new electric line to replace theEbcfb Supply Line. Notwithstanding the foregoing, Licansee agnees to make all emergoncy changos and
minor adjustments, as determined by Licensor in its sole discretion, to the Elec{ric Supply Line promptly upon
Licenso/s request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Suoolv Line.
11.1 Licensee shall notify Licensor's Division Enginea, Mike Schram at 1313 W 11th Street, Vancouver,
WA 98660, telephone (360) 41&6415, or email [e-mail], at least ten (10) businese
days prior to installation of the Eledric Supply Line and prbr to entering the Premises for any
subeequent malntenance th€reon. ln the event of emeqercy, Licensoe shall notify Licensor of
Licensee's entry onto the Premises at the telephone number above as soon as practlcable and shall
promptly thereafier follow up with unitten notice of such entry.
rail coridor, induding, without
Licensee's on+lte supervisors shall retairVmaintain a fully executed copy of this License at all times
while on the Premises.
11.2
11.3 While on the Premisos, Licengee shall use only pnblic roadways to cross fiom one side of Lioenso/s
tracks to the other.
11.4 Any conFactors 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
thls Llcense.
11.5 Under no conditions shall Licensee be permitted to conducl any tesb, investigatiors or any other
activity using mechanized equlpment and/or machinery, or place or store any mechanized
equipment, tools or other materials, within twenty-five (25) ftet of the centedine of any railroad track
on the Premises unless Licensee has obtained prior written approvalfrom Llcensor. Licensee shall,
at its sole cost and expense, perform all activities on and about the Premises in such a manner ag
not at any time to endanger or lnterfere vJith (l) the existence or use of present or future Eacks,
roadbeds, or property of Licensor, (ii) the safe operation and activities of Licensor or existng third
padies, or (iii) the rights or interests of thhd parties. lf ordered to c€ase using the Premises at any
Ume by Licenso/s personnel due to any hazardous condltion, Licensee shall immediately do so.
Notwithstending the foregoing right of Licsnsor, the parties agree thal Licensor has no duty or
obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being
solely Licansee's responsibility to ensure that Licensee's use of the Premlses ls safe. Neither the
-2
Fom 421; Rev.2014{l&ll
Tracklng #1S1863
exercise nor the failure by Llcensor to exercise any rlghte granted ln thls Soctlon will alter the liability
allocation provided by this Llcense.
11.6 Licensee shall, at its sole cost and expense, consbuci and malntain the El€c{rlc Supply Llne ln such
a manner and of such material Orat the Electric Supply Llne wlll not at any time endang-er or interfere
with (i) the exbtence or usg.qf present or future traqkg, roadbeds, q.pryporty_of Lbensor, (ii) the safewith (i) the exbtence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe
operation and actMities of Licensor or existing third parties, or (iii) the rights or interesE of thlrd
obrtins- The construction of the Electric Suoolv Line ehall be comoleted wllhln one (1) rrcar of thepbrties. The oonstruction of the Electric Supply Line bhall be completed wlthln one (1) year of the
Effectfue Date, and any subsequent malntenance shall be completed within one (1) year of iniUatlon.Efiectfue Date, and any subsequent malntenance shall be completed within one (1) year of iniUatlon.
Wlthln ffieen (15) darc after completbn of he consbuction of the Electric Supply Line or the
performance of any subsequent malntena4ry lheroon, Licensee slpr!1, at Licensee's own cost and
expense, restore the Premiees to substantially theh state as of he Effedlve Date, unleee otherwise
apprwed in adnnoe by Llcensor ln wrltlng. On or before expiration or terminaton of this License for
any naason, Llcensee shall, at its sole cost and expenae, sunender the Premlses to Licensor
pursuant to the terms and condltlons set forth in Scctlon 24 hereof.
11.7 Licsnsor may direct on€ or mors of lts fleH engineers to obsorve or inspect the constucfion and/or
malntemnce of the Electuic Supply Line at any time for compliance with the Drawings and
Specifications and Legal Requirements (dsfined belor). lf ordered at any tme to hall constructlon or
maintsnance of the ElecEic Supply Llne by Ucenso/s pereonnel due to nonompliance with the
Drawings and Specifrcatlons or any other hazardous conditon, Licenre shall immediately do so.
Notwithstranding the foregoing right of Licensor, the parti€E agroo thet Lioensor hm no duty or
oUigation to observe or insp€c[ or to halt work on, the Electric Supply Llne, lt being sddy
Licensee's responsibility to ensure that the Eloctlc Supp{y Line b oonstucted and maintained instlct accordance wilh the Drawings and Specifications ard ln a safe and norkrnanlike manner in
compliance with all terms hereof. Nelther the exercise of, nor the failure by Licensor to exerclse, any
right granted by this Sction will alter in any way the liability allocatlon provlded by thb Lloense. If at
any time Licens€e shall, in the sole Judgment of Licensor, fail to properly perform its obligations
underthis Sccdonll, Licensor may, at iB option and at Licensee's sole ilxpense, arange-fortheperformance of such uork as it deems n€ceosary br the safety of its operailons and rctivltles.
Licensee shall prompUy reimburse Licensor for al! cosb and expsnses of such work, pursuant to the
terms of Secffon E. Lkrenso/s fallurc to perform any obligetions of Licensee shall not aher the
I iablllty allocatlon hereunder.
1'1.8 Licensee shall, at its sole oost and €xpenEo, construci and at alltmes maintrain the Elecfic Supply
Line in acoordanoe wlth the National Electrlc Safety Code.
11.9 lf the operation or maintenarlce of the Elecffic Supdy Line at any time causes lnterfercnce, lncluding
but not limited to phyrical interference frrom elec'tromagnetic inductlon, elecfostatic induction, or fiom
stray or other cunenls,-wlth the facllities of Liceneor or of any lessee or llcensee of Licensor, or. in
any manner interfere wih the operation, maintenarre, or uso by Lbensor of ib rightof-way, tracks,
structures, pole lines, signal ard communication lines, radio, or other equlpment, devioes, otlrer
property or appurtenanca thereto, Licensee agnoes immedlatdy to make such changes in the
Elec'trlc Supply Line and furntsh snch protective devices and/or replacernent equipment b Lioensor
and its lessees or licaneees as shall be necessary, in the judgment of Licerro/s t€pr€sentative, to
eliminate sudt interference. The cost of srct protec{ive devicee and thelr lnstrallatlons shall be borne
solely by Liceneee. lf any of the interference covered by this Sectlon 11.9 shall be, in the judgment
of Li@nsor, of srch importanoe to the safety of Licensor's operations as b require immildiaG
conective adion, Licensee, upon notice ftorn Licensor, shall either, at Ucensor's dec{ion, ceage
using the Elec{c Supply Line for any purpose whatsoever and rcmove sarng, or redrrce the voltage
or load on the El*ttic Supply Llne, or take srch other interim protective m€asunEs as Lioensor may
deern advisable, untll the protective devices andlor rcplacement equipment requircd by this Scc-tlon
11.9 have been installed, put in operation, tested, and found to be satisfaclory to conect the
interference.
11.10 Licensee shall, at its sole cost and exponse, remove all combustible material from around uooden
poles on the Premises, if any, and will at al! times keep the spaoe around such poles free of such
material, and if remoral of such combustiHe material shall not be attended to wlth flfteen (15) dateafter havirp been rcquested by Llcensor to do so, Licensor shall have the rlght itself to perform he
work and Llcgnsee hereby agrgas to reirnburse Licensorfor the expense so inbuned.
Borino and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar uork on or about any portion of the
Premises, Licensee shall explore the proposed locdion for euch work with hand tools to a depth of at
least three (3) feet below the surface of the ground to determlne whether pipelinee or other
-3.Folm421; Rry.20'1t0601
Tmcking #1S'5186i1
sbucfures exist below the surface, orcvided. hg!!$(g[, that in lieu of the foregoing, Licersee shall
have the rlght to use suitable detec'tion equipment or other generally accopted industry practice (e.9.,
consulting with the Underground Services Association) to determine the existenco or location of
pipelines and other subsurface struc'tures prior to drilling or excavating wlth mechanized equipment.
Licensee may r6qu6st informaUon from Licensor concerning the existence and approximate location
of Licensor's underground lines, utilities, and pipelines at or near the vicinity of the proposed Electric
Supply Line by contac{ing Licenso/s Telecommunications Helpdeek at least thirty (30) businas
days prior to installation sf the Electric Supply Line. Upon receiving Lknnsee's tlmely request,
Licensor wlll provide Licensee with the information Lioensor has in iB poosession regarding any
existing underground lines, utilities, and pipelines at or near the vicinity of the proposed Electric
Supdy Line and, if applicable, identify the location of sucfr lines on the ftemisas pumuant to
Licensods standard procedures. Licensor does not wanant the accuracy or cornpletene$ of
informatlon rdating to subsurface conditions of the Premises and Licensee's operations will be
subject at all times to the liability provbions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below boilom of rail, a
soll investigation must be performed by Licensee and reviewed by Licensor prior to construc'tion.
This study is to determine if granular material is present, and to prevent subsidence during the
installation process. lf ihe investigation detemines in Licensor's reasonable opinlon that gfanular
material is prceent, Licensor may select a new location for Licensee's use, or may require Licensee
to fumish for Llcenso/s review and approval, in Licerso/s sole discretion, a remodial plan to deal
with the granular material- Once Licensor has approved any such remedial plan in uriting, Liensee
shall, at Lbenses's sole cost and expense, @rry out the approved plan in accordanoe with all terms
thereof and hereof.
12.3 Any open hole, boring, or well, constructed on the Premises by Licensee shall be safely covered and
secured at all tirnes when Licensee is not working in the astual vlclnlty thereof. Followlng completiond that portlon of the work, all holes or borlngs constructed on the Premises by Licensee shall be:
'12.3.1 filled in to sunounding grcund tevelwith compacted bentonite grort; or
12.3.2 othenrise secured or retired ln accordanoe with any applicable Legal Requirement. Ilo
excavated materials may remain on Licenso/s property for more than ten (10) days, butmust be properly disposed of by Lbensee in aooordance with applicable Legal
Requirements.
LIABILITYAND INSURANCE
13. Liabilitv and lndemnification.
13.1 For purposes of this License: (a) "lndcmnitec' means Licensor and Licenso/s afiiliated companies,
partners, suoogssors, assigns, legal representatives, officers, directors, shareholdes, omployees,
and agenb; (b) "Llabllltler'means all claims, liabilities, fines, penalties, cosE, damages, loss€s,
liens, causee of action, suits, demands, judgments, and expensos (including, wittrcut limitiation, court
costs, reasonable attomelc'fees, msts of irwestigatkrn, removal and remediation, and governmenial
oversight costs) environmental or otherwise; and (c) "Liccnece Partle" means Liceneee or
Licensee's ofiicers, agents, invitees, licensees, emflolrees, or contractors, or any party direc{y or
indirecdy employed by any of them, or any party they control or exorcise conkol over.
13.2 TO THE FULLEST EXTENT PERMTTTED BY LAW LICENSEE SHALL, AND SHALL GAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AI{D HOLD HARHLESS INDEMNITEES
FOR" FROXI, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR
DESGRIPTION DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROT, OR
RELATED TO (!N WHOLE OR lN PART):
13.2.1 THIS UCENSE, INCLUDING, WTHOUT LMTATIOI{, ITS ENVIRONi'ENTAL
PROVTSTONS,
13.2.2 ANY RIGHTS OR INTERESTS GMNTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PRETIISES,
13.2,4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREUISES CAUSED BY OR
CONTRIBUTED TO BY UGENEEE, OR
13.2.5 ANY ACT OR OHISSK)N OF ANY LICENSEE PARW.
Form 421; Rev. 20140801
14.
15.
Tracking #1S51863
13.3 TO THE FULLEST EXTENT PERilIITTED BY LAW, LICENSEE NOW AND FOREI'ER WAIVES
ANY AND ALL CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LIGENSOR IS A
GENERATOR, OWNER, OPERATOR, ARRANGER, OR TMJ{SPORTER FOR THE PURPOSES
OF THE COMPREHENSIVE ENVIRONIUENTAT RESPONSE, GOTI'PE]ISATION, AI{D LIABILITY
ACT, AS AMENDED ("CERCLA'I OR OTHER ENVIRONMENTAL LAWS (DEFTNED BELOyU).
LICENSEE WLL INDEMNIFY, DEFEND, AND HOLD THE IilDEIUI]{ITEES HARMLESS FROM
ANY AND ALL SUCH CLAIIIS. NOTHING IN THIS LICENSE IS TEANT BY EITHER PARW TO
CONST]TUTE A WAIVER OF ATTIY INDETNITEE'S COTMON CARRIER DEFENSES AND THIS
LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY AGEilGY OR COURT CONSTRUES THIS
LICENSE TO BE A T,YAIVER OF AI{Y INDE]ilNITEE5 COTUIITION CARRIER DEFENSES,
LIGENSEE AGREES TO INDEMN|FY, HOLD HARULESS, Ar{D DEFEND INDEiINmEES FOR
Al,lY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS LICENSE. lN NO E\rENT AS
BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISEE AS CONTEiiPLATEDBY TH]S L]CENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR THE
ENVIRONMENTAL CONDITION OF THE PREi'IISES.
13.4 !F ANY ETiPLOYEE OF ANY LICEITSEE PARTY ASSERTS THAT HE OR SHE IS AT{ ETPLOYEE
OF AilY INDEMNITEE, TO THE FULLEST EXTENT PERi'ITTED BY LAW, LIGENSEE SHALL,
AND SHALL CAUSE ITS CONTRACTORTO, RELEAISE, IIIIDETNIFY, DEFEND, AND HOLD THE
INDEiII{ITEES HARMLESS FROIU AI{D AGAINST AilY LIAB'LITIES ARISING OUT OF OR
RETATED TO (rN WHOLE OR lN PART) AilY SUCH ASSERTIoN TNCLUDING, BUT NOT
LIUITED TO, ASSERTIONS OF EMPLOYi,IENT BY AN INDEUil]TEE RELATED TO THE
FOLLOWNG OR ANY PROCEEDII'IGS THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITYACT, THE SAFEW APPUAI{CE ACT, THE LOCOMOTME INSPECTION ACT, THE
OGCUPATIONAT SAFETY AiID HEALTH ACT, THE RESOURCE CONSERVATIOT{ Al{D
RECOVERY ACT, AITID ANY SITTIILAR STATE OR FEDERAL STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE DfiENT
LIABIL]TIES ARE PROXMATELY CAUSED BY THE GROSS NEGLIGENCE OR WLLFUL
MISCONDUCT OF AITIY I]{DEIUINITEE, BUT SHALL APPLY TO ALL OTHER UABILITIES,
INCLUDING THOSE ARISING FROM OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL
NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILIW OF AITIY INDEIUI{ITEE.
13.6 Upon nritten noUce from Licensor, Licensee agro6 to agsume the ddense of any lauauit or other
goceeding brought against any lndemnitee by any entity, relatirB to any matter covered by lhis
License for which Licensee has an obligation to assume llablllty for and/or save and hold harmless
any lndemnitee, Licengee shall pay al! coets and el(penses incident to such defense, induding, but
not limlted to, reasoneble attomeys' fees, investigators' fees, litigation and appeal expenses,
settlement payments, and amounts paid in satisfaction of judgmenb.
Personal Prooertv Risk of Loss. ALL PERSONAL PROPERfY, NCLUDING, BUT NOT LllllTED TO,
LATEDMATERlALsUPoNTHEPRExt]sEsfiLLBEATTHERlsKoF
LIGENSEE ONLY, Al{D NO aNDEilNITEE wlLL BE LTABLE FOR ANY DAiTAGE THERETO OR THEFT
THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY
INDEMN!TEE.
Insurance. Licensee shall, al its sole cost and o(penEe, pnocrrre and malntain durlng the ltfe of this License
the following insurance ooverag€:
This insurance shallcontain broad form conbactual liabfllty
of $2,000,000 each occunence and an aggregate llmit of
15.1
at least $4,000,000 but in no event less than the amount otherwiae canied by Licensee. Coverage
must be purchased on a post 2(D4 ISO o@urenoe or equivalent and include oorrorage for, but not
llmited to, the fdlowirq:
. Bodily lnjury and toperty Damage. Pelsonat lnjury and Advertising lnjury. Fire legal liabiliU. Products and completed operations
This pollcy shall algo contain the following endorcements or languagp, wtrich shall be indicsted on
the certificate of insurance:
. The definition of insured contact shall be amended to r€more any exclusion or other llmitatlon
for any rvork being done within 50 feet of railrcad property.
-5-Form 421: Rar,20140801
Tracklng #15-51863
. Waiver of subrogation in favor of and acceptable to Licensor.. Additional insured endorsement in favor of and acceptrable to Licensor and Jones Lang LaSalle
Brokerage, lnc.. Separation of insureds.. The policy shall be primary and non-conbibuting with resped to any insurance carried by
Licensor.
It is agreed that the uorkers' compensation and employws' liability related exclus'rons in the
Commercial General Liability lnsurance policy(s) required hereln arc 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 pollcy.
15.2 Business Automobile lnsurance. This insurance shall contain a combined single limit of at least
S1,000,000, and include covsnage for, but not limited to the following:
. Bodily injury and prop€rty damage.t Any and all vehicles owned, used or hired.
Thb 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 Lbensor.. Additional insured endorsement in favor of and acceptable to Llcensor.' Separation of irsureds.. The policy shall be primary and non+onbibuting with respec{ to any insuranca canied by
Licensor.
15.3 Workers'Comp€nsation and Emolorors'Uabililv lnsurance. This insurance shall include coverage
. Licensee's stiatutory liability under the workers'compensation laun of the state(s) in which thegervices are to be performed. !f optional under state larys, the insurarrce must over all
employees anyway.. Employers' Liability (Part B) with limits of at least $500,000 eacfi aoddent, $500,000 by disease
policy Iimit, $500,000 by dbease each employee.
Thls pollry shall also contain the following endorsements or languagp, wtilch shall be indicated on
the certificate of insurance:
. Waiver of subogaUon in favor of and acceptrable to Licensor.
15.4 Railroad Protectlve Liabilitv lnsurance. This insurance shall name only Licensor as the lnsured wtth
ocurenoo and $6,0(X),000 in the aggregate. The ooverag€
obtained under thls pollcy shall only be effective during the initial installation and/or constructlon of
the Electric Supply Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE
COMPLETED W]THIN ONE (1) YEAR OF THE EFFECTIVE DATE. lf further maintenance of the
Electic Supply Line is needed at a later date, an additional Flailroad Protective Liability lnsurance
Policy shall be required. The policy shall be issued on a standard ISO form CG 00 35 12 03 and
lnclude the folloring:
. Endorsed to include the Pollution Exclusion Amendment.. Endorsed to include the Limited Seepagp and Pollution EndorsemenL. Endorsed to include Evacuation Expense Coverage Endorsement.
' No other endorsements resblcting @verage maybe added.. The original policy must be provided to Li,censor prior to performing any work or servbqs under
this Llcense.. Definition of "Physinl Damage to Property'' shall be endorsed to read: "means dircct and
accHental loss of or damage to all propefi owned by any named insured and all property in any
named insured's care, anstody and onbol arising out of the acts or omissions of the contractor
named on the Declarations."
ln lieu of providirB a Railroad Protective Liabillty Pollcy, for a period of one (1) year from the
Efiective Dhte, LicCnse€ may parlbipate in Llcensor's Blanket Railroad Protective Liability lnsurance
Pdlcy avaflable to Lioensee-or its contractor. The limits of coverage are the same as above, The
cost is M60.
-6-Fom421z Rev.20140E01
Tracking #1S,51863
o leloct to participate in Licenso/s Blanket Pollcy
tr I elect not to partclpate in Lioenso/s Blanket Policy.
15.5 OtherRequirements:
15.5.1 Where allo,vable by law, all policies (applying to coverage listed above) shall contaln no
exclusion for punltlve damages.
15.5.2 Licensee agrees to wairre ib right of recovery agalnst Llcensor for all clalms and suits
agalrct Llcensor. ln addition, Licensee's inourers, through the terms of the pollcy or a policy
endorsement must uaive thelr right of subrogatlon against Llcensor for all daims ard suits,
and the certificate of insurance muet reflect the waiver of subrogation endorcement.
Licensee further waives its right of recovery, and lF lnsurerg must also rlnive thelr right of
subrogatnn against Licensor for lo$ of Licensee's owned or leased propefl, or property
under Licensee's care, custody, or control.
15.5.3 Licensee is ndt allowed b self{nsure u{thout the prlor written consent of Lioensor. lf granted
by Lioenaor, any selfinsured rebntion or other financial responsibillty for chlms shall be
covered directly by Lioensee In lieu of insurance. Any and all Licsneor liabilities that would
otherwise, ln accordance with the provisions of thls License, be covered by Licensee's
insunance will be covered as lf Llcensee elec'ted not to include a self-insured retention or
other financbl responsibility for claime.
15.5.4 Prlor to enterlng the Premises, Licensee shdlfumish to Licensor an acceptable certilicat{s)
of insurance induding an orlginal sign€ture of the authodzed repr$entative eviderrcing the
required coveriage, endorsements, ard amsndmenE. Ucensee shall notfy Lkpnsor in
uiting at least 30 days prior to any cancellation, rnruoneual, s{rbEtituflon, or material
alteration. ln the event of a claim or lauauit involving Licensor arising out of this Lioense,
Licensee will make available any requlred pollcy covering such daim or lawsuit.
15.5.5 Any insurarrce policy shall be written by a reputable insuranoe company acceptaUe to
LioenEor or wlth a current Besfs Guide Rating of A- and Class Vll or better, and authorized
to do business in tho state(s) in whlch the sewice is to be provkled.
15.5.6 lf ooverage is purchased on a "claims made' basis, Lkxnsee hereby agrees to malnEln
ooverage ln force for a minimum of three years der expiration or termination of this Llcerse.
Annually, Licensee agre$ to prwlde evidenoe of such coverage as required hercunder.
15.5.7 Licensee represents that this Liceme has been thoroughly revlewed by Ucensee's
insuranoe agent(s/broke(s), who have been instructed by Licensee to procure the
insurance covemgo requlred by this LIcense. Allocated Loss Expense shall be in addition to
all policy limlts for @verages rsferenced above.
15.5.8 Not more frequenUy than once every five ytsars, Licensor may reasonably modfi the
required insurance covenage to reflect then+urent risk management practices in the railroad
industry and underwriting practices in the insurance lndustry.
15.5.9 lf any pordon of the operation is to be subcontracted by Li@nsee, Licensee shall requlre that
the subcontractor shall provHe and maintain insurance @verages as set forth herein,
naming Licensor as an addltional insured, and slull requlre thd the suboontrador shall
releaso, defend and lndernniff Lioensor to the same extent and under the game terms and
condltlons as Licensee is required to lolease, defend and indemnifo Licensor herein.
15.5.10 Failure to povide evidence as required by thls Sectlon 15 shall entitle, but not require,
Licensor to terminate this License immediately. Accephnoe of a certflcate that does not
comdy wlth firis Section shall not operate as a uaiver of Lbensee's obligations hereunder.
.7-Form 421; Rcv.20llo80t
TracklrB #15{1863
15.5.11 The fac{ that lnsurance (lncluding, without limitation, sdf-insunanoe) is obtained by Licensee
shall not be deemed to rclease or diminlsh the liability of Licensee, irrcluding, without
limitation, liability under the indemnity provbions of thle LIcense. Damages recwerable by
Licensor shall not be limited by the amount of the required insurance coverage.
15.5.12 These lnsurance provisions are intended to be a separale and distinct obligation on the part
of the Lioensee. Therefore, these provlslons shall be enforceaUe and Licensee shall be
bound thereby regardless of whether or not indemnlty provlsions are determined to be
enforceable,
15.5.13 For purposes of this Sec'tlon 15, Licensor shall mean 'Burllngton Northem Santa Fe, LLC',
"BNSF RailwayCompan/'and the subsidMes, suooessotrE, asspns and affliates of ech.
COM PLhN CE WTH LAYYS. REG U LATIONS. A]{D E}{VIRON MEilTAL MATTERS
16. Comolianoe with Laws. Rules. and Regulations.
16.1 Licensee shall obeerve and comply with any and all laws, statutes, regulations, ordinances, orders,
@venants, resfictions, or decbions of any court sf competent lurlsdictlon ("Lcgal Requlronentr")
relating to the constrtrc{ion, maintenanoe, and use of the Electic Supply Line and the use of the
Premises.
16.2 Prior to entedng the Premises, Licensee shall and shall cause lts contracto(s) to comply with all of
Llcensols applicable safety rules and regulations. Liensee must ensu,€ that each of its employees,
@nfractors, agents or lnvltees entering upon the Premises complebs the safety orientation program
at the Website kww.BNSFcontractor.com' (the 'Safcty Orientetion") wlthin one year prior to
entering upon the Premis€s. Addltlonally, Licensee must ensure that each and wery emfloyee of
Llcens@, its contractors, agonb and invitees posaoss a cand certif,ing completion of the Safety
Orientation prkr to entering upon the Premiss. Licensoe must rcnew the Safety Orientati,on
annually.
16.3 Llcensee shall obtein on or beforc the date it or its contnactor enters the Premises, any ard all
additional fuhts-of way, eesomenb, lloenses and other agreemenB relating to the grant of rlghB and
anterestr in and/or aooess to the Premises (collectively, the "Rlghts") and such other fights, lioernes,
permits, authorizatbns, and approvab (including without limitatlon, any necessary local, state,
federal or fibal authorlzations and environmental p€rmits) that are nec$sary in order to permlt
Licensee to construct, maintraln, own and operate the Electric Supply Line and othenrise to perform
ib obligations hereunder in aooordance with the terms and condltlons hereof.
16.4 Licensee shall elther require that th€ initial stated term of each such Rights be for a poiod that does
not expire, in accordance wl$ lts ordlnary terms, prior to the last day of the term of this License or, if
the inithl statd term of any such Right expires in accordanoe wlth its ordinary terms on a date
earller than the last day of the term of this License, Lioensee shall, at ib cost exercise any renewal
rights thereunder, or othqwlse acqulre strch extensbns, additions and/or r€placsrnents as may bo
neoessary, in order to cause the stated term thereof to be ontinued until a date that is not earlier
than the last day of the term of thls License.
18.5 Upon the ergiratlon or termlnation of any Right that is necessary in order for Lic$see to own,
oporate or use the Elec{ric Supply Line ln accordance u,ith the terms and oonditions of this License,
this License thereby shall aubmatlcally expire upon suctr expiraton c terminaflon of the Right.
17. EnvironEpntal.
17.1 Llcensee shall strictly comply with all federa[, state and local environmental Legal Requirements and
regulations ln its use of the Premises, including, but not limited to, the Resouroe Conservation and
Recovery Act, as amended (RCRA), the Glean Wabr Act the Oll Pollution Act, the Flazardous
Materials Transportation Act, and CERCLA (collectively refen€d to as the "Enyltonmcntd Laws).
Llcensee shall not maintain a boatmont, storage, transfer or disposalfaclllty, or underground storage
-8-
Fonn 421; Rev.201408Dl
Tracklng #1ffi1863
tank, as deftned by Environmental Larrys on the Premises. Lioensee shall not releasE or suffer the
release of oil or hazardous substanoes, as deflned by Environmental Larvs on or about the Premises.
17.2 Licensee @venantB that it wll not handle or transport 'hazardous yvaste" or 'hazardqrs
substalrcos", as "haardous waste" and "hazardous substances" may nou/ or in the future be dsfined
by any federal, slate, or local governmental agency or body on the Premises. Licensee agr€os
perbdically to furnish Licensor with proof, satlsfactory to Llcensor that Llcansee b in comdiance with
the provisions of this Sec't|on17.2.
17.3 Licensee shall give Lloensor lmmediate notloe to Licensor's Resource Operations Center at (800)
892-5,462 of any known (i) release of hazardous substrances on, ftom, or afiectlng the Premises, (ii)
violation of Environmental Lane, or (iii) inspection or inquiry by governmental authorities charged
with enforclng Erwimnmenta! Laws with respect to Licensee's uso of the Premises. Li:ertsee shall
use the best €fforts to prompty respond to any release on, from, or #ecting the Premises. Licensee
also shall give Lkrnsor immedhte notlce of all measures undertraken on behalf of Licensee to
invesUgate, rcmediate, r€spond to or othenpise cure such release or violation.
17.4 lf Licensor has notice from Licensee or othenryise of a release or violation of Environmental Laun
arisirp in any way with respect b the Elec{ric Supply Line which occuned or may occur durlng the
term of this License, Llcensor may require Licensee, at Licensee's sole rlsk and expense, to take
tlmely measures to investigpte, remediate, regpond to or othenpise cure such release or violation
afiec'ting the Premises or Llcensor's right<f-way.
17.5 Lioensee shall promptly rcport to Lioensor in vwiting any conditions or activiti€s upon the Prembes
knorrn to Licensee whlch create a risk of harm to persons, property or the environment and shall
take whatever action is necessary to gevent injury to persons, property, or the environment arbing
out of such condilions or actlvities; prwided, however, that Licensee s reportlng to Licensor shall not
rdieve Lft:ensee of any obligation whatsoever imposed on it by this License. Licensee shall promptly
respond to Licenso/s rcquest for lnformation regarding said conditions or ac'tivities.
DISCLAIIIER OF WARRANTIES
18. NoWananties.
18.1 LICEI{EOR'S OUTIES AND WARRANTIES ARE LIIITED TO THOSE EXPRESSLY STATED IN
THIS LICENSE AilD SHALL NOT INCLUDE ANY IiiPL!ED DI,,TIES OR Ii,IPLIED WARRAIiITIES,
ilOW OR IN THE FUTURE. ilO REPRESEilTANOilS ORWARRANTIES HAVE BEEN TAIIE BY
LICEI{SOR OTHER THAI{ THOSE CONTAT{ED IN THIS LICENSE. LIGENSEE HEREBY
WAilES ATTIY Al{D ALL WARRAI{TIES, EXPRESS OR ITPLIED, WTH RESPECT TO THE
PREMEES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUTTY, INCLUI'ING,
WITHOUT UIIITATIOIiI, ANY IVARRAT{TY OF ]UIERCHA}TTABILITY, HAB]TABILITY OR
FITNESS FOR A PARTICUIAR PURPOSE.
18.2 LICENSOR MAIGS t{O WARRANTY, REPRESENTATION OR CONDITK)N OF AIrIY KIND,
EXPRESS OR lmruED, CONCERNTI{G (A) THE SCOPE OF THE LTCENSE OR OTHER RTGHTS
GRANTED HEREUNDER TO LTCENSEE OR (B) TTYHETHER OR NOT LTCENSEE S
CONSTRUCTION, TAIIIITENAT{CE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC
SUPPLY LlltlE WILL VIOLATE OR INFRINGE UPON THE RlcHTE, INTERESTS AND ESTATES
OF THIRD PARTIES, INCLUDING, UYITHOUT LITIITATION, ANY LEASES, USE RIGHTS,
EASETENTS AND LIENS OF ANYTHIRD PARTY.
19. Diedaimer of Wananty for Quiet Enioyment. LICENSOR DOES NOT WARRAI{T ITS TITLE TO THE
PREMISES NOR UT{DERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. 1{O COVENANT OF QUIET ENJOYTENT B TUIADE.
20. Evictbn at Rbk of Licensee. ln case of the eviction of Licensee by anyone owning, clalmlng tltle to, or
dalmlng any lnterest ln the Premises, or by the abandonment by Licensor of the affected rail corridor,
Licensor shall not be liablE (l) to refund Lioensee any oompensation paid herqtnder, except for the pro-rata
-9-Form 421: Rcv.201'l{)q)l
Tra*ing #15-51863
part of any recunlng charge pald in advance, or (ii) for any damage Licensee sustains in connection with the
evic{ion.
LIENS AND TA)(ES
21. Uens and Charges, Licensee shdl promptly pay and discharge any and all liens arising out of any
constuction, alterations or repairs done, suffered or permitted to be done by Licensee on Premlses.
Llcensor is hereby authorized to post any notices or take any other action upon or wlth r$pect to Premises
that is or may be permitted by law to prevent the attachment of any sucfr liens to Premises; provided,
howsve, hatfailure of Licensor to take any such action shall not relieve Licensee of any obligation or lbbility
under this Secilon 21 or any other Soc{ion of this License.
22. Taxes. Licensee shall pay when due any tiaxes, assessmenF or other charges (collectlvely, 'TaroG") levied
or assessed by any governmentral or quasigovemmental body upon the Electric Supply Line or any other
imprwemenb constructed or installed on the Premises by or for Licensee (collectively, the "lmprovements")
or any Taxe levied or assessed against Licensor or the Premises that are attributable to the lmprovements.
pEFAULT. TERMINATTON. Ailp SURRENpEB
23. Defavlt and Tennination, ln addition to and not in limitation of Lioenso/s right to terminate for failure to
prcvide evidence of insurance as required pursuant to the terms of Seetlon 15, the following events are also
deemed to be events of default pueuant to whiclr Licensor has the right to terminate as set forth below:
23.1 lf default shall be made in any of Uoensee's @venants, agreem€nts, or obligations contained in this
Licanse ard Licensee fails to crtre said default within thirty (30) days after written rptice is provided
to Licensee by Licensor, or in case of any assignment or transfer of this License ln vldation of
Sctim 26 below, Licensor may, at lts optlon, terminete this License by serving five (5) days'notice
in writing upon Licensee. Notwithstandlng the foregoing, Licensor shall have the right to terminate
this License immediately if Licensee fails to pmvide enidence of insurance as required in Sec{lon 15.
23.2 Should Licensee not comply fully wlth the obtigations of Sec{ion 17 regarding the handling or
transporting of hazardous waste or hazardous material, notwithstanding anything contained in any
other prwision of this Lkrense, Licensor may, at its option, termlnate this License by serving five (5)
days' rrctice of termination upon Licensee.
23.3 Any uaiver by Licensor of any default or defaulte shall not constitute a waiver of the right to terminate
this Licanse for any subsequent default or defaults, nor shall any such waiver in any way affec{
Licenso/s ability to enforce any Section of this Lioense. The remedy set forth ln thls Scctlon 23
shdl be in additlon to, and not ln limitation of, any other remedies that Ucensor may have at law or in
equitY.
23.4 ln addltion to and not in limitatlon of Licenso/s rights b terminate this License for failurc to provlde
evidene of insurance or oocurenoe of defaults as described above, this License may be terminated
by either party, at any time, by serving thltty (30) days' wriften notice of termination upon the other
party. Such termination shall not release either party hereto fmm any llability or oUigation under the
Lbense, whether of indemnity or otherwise, resuliing fiom any acts, omisslons or eventB happenlng
prior to the date of termination or thereder in case by the terms d the License it b provided that
anything shall or may be done der termlnaton h€reof.
24. Sunender of the Premises.
24.1 On or beforc expiation or termlnaffon of thls License for any reason, Lioensee shall, at its sole cost
and expense:
24.1.1 if so dFeded by Licensor in writing, remove the lmprovements, the Electric Supply Line and
all appurtanances thereto, or, at the sole discretion of Licensor, appropriately decommission
the Eletric Snpply Line with a method satisfactory to Licensor;
.10-Form 421; Rcv. 20140801
24.3
Tnacklng #16S1863
24.1.2 report and restore any damagts to the Premises or Licenso/s other property arising from,
growing out of, or connected wlth Lioensee's use of the Prernlses;
24J.3 remedy any unsafe condi0ons on the Premises creabd or aggravated by Licensee; and
24.1.4 leave the Premises ln subetantially the condl0on whlch exlsted as of the Etrective Date.
Upon any expiration or terminatlon of this Llcense, it Licensee fails lo sunender the Premlses to
Lbensor or if Llceneee falls b complete lb obligations under Scction 21.1 aboue (the Rcrtordim
ObllgaUons'), Licensee shall have a llmited licanse to entsr upon the Premis€ solely to the extent
necessary for Lkrnsee to oornpleb the Restoration Obligations, and all Ilablllties and obllgations of
Lloensee hereunder ahall continuc in effec't until the Premises are surendered and the R€otomtlon
OHigations are completed. Nellher termlnauon nor expiration shall release Licensee trom any liability
or obligation under this Llcens€, whefrrer of indemnfty or otherwise, resulting from any acts,
omlssions or events happenlng prkr to the date of termination, or, if later, the date when Llcensee
slrenders the Prembes and all of the Restordon Obligations are compleM.
lf Licensee fails to comflete the Rostoration OblBations wlthln thirty (30) dayr der ths date of such
termination of its tenarrcy, then Lbensor may, at its elocton, either (l) remove the Elec{ric Supply
Llne and the other lmprovemenb or othenrlse reotore the Premises, and in such event Liceneee
shal!, within trirty (30) days after recelpt d bill herefor, Gimburse Licensorfur cost incun€d, (ii) upon
rmitten notice to Licensee, take and hold the Elec{rlc Supply Llne and the other lmprovements and
personal property as iis sole property, without payment or obligation to Ucensee therefor, or (lll)
specifically enfurce Lioensee's oHigatt'on to restore and/or pursue any remedy at law or in equity
agairst Llcensee for fallure to so reslorc. Further, if Ucensor hag onsented to the Electric Supply
Line and the other lmprwemenb remaining on lhe Premlses fdloring termination, Lioensee shall,
upon rcquest by Licensor, provlde a bill of sale in a form acceptable to Llceneor conveylng the
El€cfic Supply Une and the other lmprovements to Lioensor.
n.
ITIISTCELLANEOUS
Successors and Aeslons. All povlslons contained in this License shall be binding upon, inure to the bensfitd, and be enforoeabb by the respoctlve su@eosots and assigns of Licensor and Licensee to the same
extent as if eacfi such successor and assign utag named a party to this Llcense.
Assionment.
26.2
Licensee may not sdl, asslgn, hansfor, or hypothecate this Llcense or any rlght, obligeffon, or
Intercst herein (either voluntarily or by operation of hw, mer(pr, or othenrise) wtthout the prlor
rvritten consent of Llcensor, wtticfi consent may not be unreasonaHy withheld or delaycd by
Lbensor. Any aftempted assignment by Licensee ln vlolatlon of this Scction 26 shall be a breach of
this Li:ense and, in addition, shall be voidable by Licensor in its sole and absolute discretion.
For purposes of thb Scctlon 26, the urcrd "ass[n'shal! include without ]imitratim (a) any sale of the
equrty interesb of Liceneee following rfiich the equlty interest holders of Licensee immedhtety pior
to such sal€ own, direc*ly or indftec{ly, less than 5006 of tre comblned vodng poris of the
oubtandlng voting equity interests of Licensee, (b) any sale of all or substantially all of the asseE of
(i) Licensee and (ii) to the extent such enllties exist, Licensee's parent and subsidiaries, taken as a
whole, or (c) any r€organization, recapitallzation, merger or consolldation involving Lioensee.
Notwithstanding the forcgoing, any reorganization, recapitalization, me,ger or coneolldation followlng
which the equlty lnterest hdderc of Licensee immedffily prior to sucfr reorganizatlon,
recapitalization! morger or consolldatlon (rrn, dhecfly or indirectly, at least 50% of the combined
voting power of the outstandlng voting oquity interests of Licensee or any suoooesor thereto or the
entlty resulting ftom such reorganizatlon, recapMization, merger or consolk ation shall not be
deemed an asslgnment THIS LICENSE SFIALL NOT RUN WITH THE LAND WITF|OUT THE
EXPRESS WRTTEN GONSENT OF LICENSOR SUCH CONSENT TO BE IN LICENSORS SOLE
DISCRETION.
26.1
- ll .
Form121:. Rcv.201lo801
27.
Tracklng#15{1ffi3
26.3 Notwithstanding the provisions of Scctlon 26.1 above or anything oontained in this License to the
@nbary, if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in
contraventbn of the provisions of this License (a "Purported Asalgnment') to another party (a
'Purportcd Transferee"), the Purported Transferee's enjoyment of the rights and privlleges granted
under this License shall be deemed to be the Purported Transfsree's agreement to be bound by alld the terms and provisions of this Uoenso, including but not limited to the obligation to comply wilh
the provisions of Secdon 15 above conceming insurancs requirements. ln addilion to and not in
limitatim of the foregoing, License€, for itself, ib sucoessors and assigns, shdl indemnlfy, defend
and hold harmless Lioensor for al! Liabillties of any nature, kind or desoiption of any person or entity
direcdy or indirecUy arising out of rasulting from or related to (in whole or in part) a Purported
Assignment.
m.4 The provislons of thls Sec'tion 26 shall survive the expiration or earlier termination of this Licanse.
Notices. Any notice, invoice, or other writirp requhed or permitted to be girren hereunder by one party to the
other shall be in wrlting and the same shall be given and shal! be deemed to have been served and given if
(i) placsd in the Unlted States mail, certified, retum rcceipt rcquested, or (ii) deposited into the anstody of a
nationally reoognized ovemight delivery servlce, addrcss€d to the party to be notified at the address for such
party specified belor, or to such other address as the party to be rptified may desQnate by giving the other
party no less than thirty (30) days' advance written nolice of such change in address.
lf to Licensor:Jones Lang LaSalle Broke4e, lnc.
4300 Amon Carter Blvd., Suite 100
Fort Worth, TX 76155
Attn: Permits/Licenses
B|{SF Railway Cornpany
2500 Lou l\lenk Dr. -AOEli,FortWorth, TX 76131
Attn: Senior Manager Real Estate
PaciftGorp
825 NE Multnomah Street
Suite 1700
Portland, OR 97232
with a copy to:
Survival. Neither termination nor expiration will release either party fiom any liability or obligatlon under this
License, whether of lndemnlty or othenrise, rsulting from any ads, omissions or events happenlng prlor to
the date of termination or expiation, or, lf hter, the date when the Electric Supply Line and the o0rcr
lmprwemenB are rcmoved and the Premises are restored to ib condltion as of the Efrective Date.
Recordation. lt is understood and agreed that this License shall not be placed or allored to be placed on
public record.
Aoplirpble Law. All questions concerniqg the interpretation or application of provisions of this Llcense shall
be decitled according to the substanlive Iaws of the State of Texas without regard to confllctg of law
proviskrns.
Severabilitv. To the maximum extent possible, eacfi provision of thb Lioense shall be interpreted in such
mannsr e to be effective and valid urder applicabb law, but if any provision of this License shall be
prohibited by, or held to be invalid under, appllcable la{, such provision shall be ineffective solely to the
e:<tent of Euch pmhibition or invalidity, and this shall not invalidate the remainder of such provision or any
other provlslon of this License.
lnteoratinn. This License is the full and complete agreoment between Licensor and Llcensee with respect to
all matters rclaUng to Licensee's use of the Premises, and supersedes any and all other agreemerils
between the parties hereto relating to Licertee's uee of the Premises as described herein. Hoyvsver, nothirg
lf to Licensee:
28.
N.
30.
31.
32.
-12-
Fonn 421; Rev.201{801
33.
u.
Tnacklng #15{1863
herein is intended to termlnate any survlvlng oDtigation ot Licensee or Licensee's obligation to defend and
hold Lkrnsor harmless in any prior w'ttten agreement be0reen the Frties.
Joint and Several Llabilitv. lf Lioensee consists of ttiro or more parties, all the covenanb and agreements of
Licensee herein contalned shall be theJolnt and several covenants and agreements of such parties,
Waiver. The waiver by Licensor of the boach of any provision hercln by Llcensee shall in no u/ay impair the
rlght of Lloensor to enforce that provision for any subsequent breach ths€of.
Interoretation.
35.1 This License shall be lnterpreted in a neutal mannor, and not more strorEly for or agnlnst any party
based upon Ore souroe of the draftsmanship; both parties hereby agree that this Liconso shall not be
subject to the principle that a conhact vuonld be consUued against the party nhich drafH the same.
Artlcle tltles, headings to sections and paragraphs and the table of contents (if any) are inseried for
oonvenience of referenoe only and ae not intended to be a part or b affect the meaning or
lnierpretation hereof. The exhiblt or exhibits rsfened to herein shall be oonstrud with and as an
integral part of thb Llcense to the Eame extent as if they uore set forth verbatim herein.
35.2 As usod herein, "include", "includes" and 'indr.rding" ar€ deemed to be follourcd by '\rithout
llmltatlon" vrdpther or not they are in fac{ follorcd by sucfr uords or uordg of like import; '\ilritlng',
kritten' and comparable terms refer to pnnting, typing, lithography and other means of reproducing
uords in a visible form; rsforences to any person are also to thet percon's Euoceesors and permitted
assigrs; "herof, "herein', 'hereunde/' and comp*able terms refer to the entir€ty hereof and not to
any particular article, section, or other subdivision hereof or attachment hereto; referencos to any
gender include rgferences to the masoline or feminine as the context requireo; rcfer€ncgs to the
plural include the singuhr and vice versa; and references to thls Lioensa or other documents ana as
amended, modlffed or supplemenbd from time to time.
Counterparb. This License may be exearted in multiple counterparts, oactt of which shall, for all purposm,
be deemed an aiginal but which together shall constltrte one and the same instument, and the signature
pagm fiom any countepart may be appended to any offior counterpart to assernble fully exeanted
documents, and counterparb of this Llcense may also be exchanged via emall or electronlc facslmlle
m*hines and any emall or dectronic facsimile of any party's spnature stnll be demed b be an original
signature fur all purposes.
Licersor's Reoresentiative. Jones Lang LaSalle Brokerage, lnc. is actng as representative for BNSF Railway
Company.
ENO OF PAGE - SIGNATURE PAGE FOLLOWS
37
.13-Form 421: Rry.201O801
TracklrB #1561863
Thls Lloense has been duly executed bythe parties hereto as of the dab below each pafiy's signature; b be
ffiedive, horever, as of the Efiective Date.
LIGENSOR:
BNSF RAILWAY COMPANY a Delauare corporation
By: Jonee Lang LaSalle Brokerage, lnc.,
4300 Amon Carter Blvd, Suite 100
FortWorth, D( 76155
Br
Tltle:
Date:
By:
Tl0e:
Date:
Ed Darter
Sr. Vice President - NaUonalAccounts
tICENSEE:
PACIFICORP an Oregon corporation
By 825 NE Multnomah Street
Suite 1700
Portland, OR 97232
-14-Fom 421; Rcv.20140801
COORDINATE SYSTEM: OR S TRACKTNG NO. 15-51863
@ts(\aq
ui
lrJEG
=
EXHIBIT ''A"
AITACTI ED TO CONTMCT BETT'I/EE N
BNSF RAILWAY COMPANY
AND
N
PACIFICORP
SCALE: 1 tN.= L@_ FT.NORTHWEST DIV.GATEIMY SUBDIV.
L.S. 00s5 MP: l[3Q
DATE O1n7ngft
SECTION: 21
TOWITISHIP: 40S
MNGE: 10E
MERTDIAN: WLLMv
ETSTIilG LIXE
ora.72005IP IOJO
I 21 STlAl'lf w lt 1!4,a.l71'lI
$i'
6
€
TYPE
ELECTRIC
NEAR MERRILL
D,ESCRIPTION OF WRES OVERTRACK
WRES LOCATED AS SHOWN EOI.D
DISTANCEABOVENUMBER VOTTAGE TOP OF RAIL
121(V 32' _.
CLEARS MILWAY
COMPANYSWRES
N/A
JNCCOUNTY OF KI.AMATH STATE OF OR
DRAWNG NO.62942