20151118Notice of Affiliate Transaction.pdf

\PasplCoRP
November 18,2015
YIA OVERNIGHT DELIWRY
Idaho Public Utilities Commission
472West Washington
Boise,ID 83702-5983
Attention: Jean D. Jewell
Commission Secretary
Re: PacifiCorp Notice of Affiliate Transaction
Case No. PAC-E-05-8
Dear Ms. Jewell:
R, Jeff Richards
Vice President and General Counsel
1407 W. North Temple, Suite 320
Salt Lake City, UT 84116
801-2204734 Office
j eff. ri c h ar d@1t acifi co rp. c o m
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This letter will serve as written notice pursuant to Commitmentl l7(2), incorporated in
the Idaho Public Utilities Commission Order No. 29973 issued February 13, 2006, as
supplemented by Order No. 29998 March 14, 2006, in the above-referenced proceeding,
approving the acquisition of PacifiCorp by MidAmerican Energy Holdings Company (now
known as Berkshire Hathaway Energy Company or "BHE"), of an affiliate interest transaction
with BNSF Railway Company ("BNSF") for a railroad crossing license allowing PacifiCorp to
install certain electric facilities across BNSF property in Douglas, Wyoming.
PacifiCorp is a wholly-owned indirect subsidiary of BHE. BHE is a subsidiary of
Berkshire Hathaway, Inc. ("Berkshire Hathaway"). BNSF is also a subsidiary of Berkshire
Hathaway. Berkshire Hathaway's ownership interest in both PacifiCorp and BNSF may create an
affiliated interest in some PacifiCorp jurisdictions.
PacifiCorp is installing a new customer service connection, which will require a license
allowing a wireline crossing of BNSF railroad corridor and related power pole encroachment.
BNSF uses standardized pricing for these types of licenses. PacifiCorp will pay $3,500 for the
railroad crossing license. A copy of the License for Electic Supply Line Across or Along
Railway Property, Tracking #15-53661 (the "Agreement") is included with this Notice as
Attachment A. Additionally; PacifiCorp has paid or will pay $5,960 in additional processing,
engineering, insurance and expediting fees pursuant to, or in conjunction with, the Agreement.
Crossing the BNSF railroad property is necessary to provide services to the customer. As
the owner of the underlying real estate, BNSF is the only entity that can provide the license to
PacifiCorp. The transaction set forth in the Agreement is therefore in the public interest.
Idaho Public Utilities Commission
November 18,2015
Page2
Please do not hesitate to contact me if you have any questions.
Best Regards,
R. JeffRichards
Vice President and General Counsel
PacifiCorp
Enclosures
(D)JLL
Joncs [arB LaSalle &okerage, lnc.
43mAmqt CartarBlvd.. SuliB 1m
FortWorfi, Tcxas 76155
tal [phone]fl8. b,( +1 817 30&8465
November 10, 2015
Rocky Mountain Porer
Attenton: Mr MattJanke
1&7W. North Temple
Suhte 110
Salt Lake Clty, UT ld/.ll0
Tracking #1S,53661
Dear Mr Janke:
Athched pleasa find a copy of the requested contact for ocecution by an ffidal authorized to occute contract
agreemenb on behalf cf your company. Please prlnt two (2) ooples o(ecuto, SINGLE SIDED ONLY, and !l&@0g@crrtiar wfh qffiml slaneturc br completion on part of BNSF Railway Company ('BNSF ) b this oilfice, dong uti0t
the folowlng requirements:
o A check in the amount of $3,500.00 payable to BNSF Railway Company which coverc the conhact fue.o A check ln the amount of $750.00 payable to BNSF Rallway Company whlch oovers fie Revision fee to change
namo.
Plrran ,re At rrylrtolnurrr. annol h u*ufrld by Bid8lF lrtltruil m tptwcd lnsnulr;c orfrfurh. DOXAI
sexo aw usunence ronn
nlf tftm an my bruer wltlr your hrurutca, you wlll bo conffied by e mmrbcr of tfr Rbt lamgormntlrm of BIISF Rdlwaf*
1. Please have ready fur Rlsk Manaepment a Certlflcate of lnsurance c rwulred ln he agreement
2. A rcperata policy for Rallrcad Probctive Llablllty lnsurance as requlred ln the agreement (ORlGlllAL
FOLICY ilUST BE PROVIDEO). BNSF Railway Company will be the only insured psrty4 OR;
ln lleu of ptovldlng a scparr(u pollcy lbr Rallrpad Pro@rhrc Llablllty lnsurane, you may
parflclpab ln the BNSF's Railroad Protectlve Pollcy by checking the approprlab box ln the contract and lncludlng an
additonal 1460.00 with your check.
Acceptance and deposit of any check by BNSF does not constitute an agreement between BNSF ano Lrcensee for
the requested llcense. S.ISF shall not be oUigeted to hold the check in a separate fund, but may commingle the
funds witr oher funds of BNSF, and ln no event shall BNSF be responslble for lnterest on said funds.
The enclosed permit is not a bindlng agreanrent and shall become bindlng only when, and lf, lt !s executed by 1ou and
fufly appmred and executed by BNSF Railway Corpany. Upon completion m behalf 0f BNSF, one fully execubd
counErpart wll! be refirmed fur your recods.
The speclflcatlons/plans you provlded may dtftr from BNSF'c mlnimum speclflcatlon
requiremente. Thsrefiore. prlor to your lnstallation. please revlew the Erhlblt A to determlne the specifications
ncceaaary for your installation,
PIease be inbrmed that if contracts, fees, and lnsurance arE not rctumed wlthin sixty (60) days, the $750.00
pmcessing fee will increase to $1,500.00.
Slncerely,
1afrrlkfiaalota-
Camllle Barbosa
Associate Manage PermiE
Enclosure
Tracklng #1$53661
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERW
(Electric Light, Power Supply, lnespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("Licerce") is made to be effective , 2015,
(the "Effec{lve Date") by and between BNSF RAILWAY COMPANY, a Delaware oorporation ("Licenso/') and
ROClfl If,OUNTAIN POWER, an unincorporated division of PacifiCorp ("Licensee").
ln consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Grant of License. Licensor hereby granb Licensee a non-exclusMe license, subject to all rights, intereets,
and estates of third parties, lncluding, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, to consfuct and maintain, in stric[
accordan@ with the drawings and specifications approved by Licensor as part of Licensee's application
process (the "Drawings and Speclflcatlons"), an electric supply line oonhlning a maximum of four (4)
conductors, together wtth its supporting or containing structures (collectively, ttre 'Elec'trlc Supply Llne"),
acftrss or along Licenso/s rail conidor at or near the station of Douglas, County of Converse, State of
Wlpming, Line Segment 0005, Mile Post 148.76, as shown on the attached Drawing No. 84994 dated
November 3, 2015, attached hereto as Elh!ry and inoorporated herein by reference (the'Premims").
2. Term. This License shall commence on the Effective Date and shall contlnue for a period of ttrventy-five
(25) years, subiect to prior terminatlon as hereinafter describad.
3. Existino lmorovements. Lbensee shall not disturb any improrrements of Llcensor or Licenso/s exbting
lessees, licensee, easement beneficiarbs or lien holders, if any, or interfere with the use, repair,
maintgnance or replacement of such improvements.
4. Use of the Premises. Licensee shal! use the Premlse solely for construction, maintenance, and use of the
Electrb Supply Line in accordance with the Drawings and Spectfications. Licensee shall not use the
Premises for any other purpose.
5. Alterations. Except as set forth in this License, Licensee may not make any alterations to the Premises or
permanently afiix anything to the Premises or any buildings or other structures adjacent to the Premises
without Licensor's prior written consent.
COi,tPEilSATION
6. License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thotrsand five
Hundred and No/l00 Dollars ($3,500.00) as @mpensation for the use of the Premises.
7. Costs and Exoenses.
7.1 For the purpose of this Li@nse, "@st" or '@stE" and "expense' or "expenses" includes, but is not
limited to, actual labor and material cosE anduding all asspnable additives, and material and
supply costs at cunent value where used.7.2 Licansee agrees to relmburse Licensor (pursuant to the terms of Sectlon 8 below) for all costs and
expenses incuned by Licensor in connection with Licensee's use of the Premises or the pr€sonoe,
construction and maintenance of the Elecbic Supply Line, including but not limited to the fumishing
Form421; Ror.20140fl)1
Tracklng #1$53661
of Licensor's flaggprs and any vehicle rentral costs incuned. Lioensee shall bear the cost of flagger
senrices and other safety measures provided by Licensor, when deemed neoessary by Llcenso/s
representative. Flagging costs shall include, but not be limited to, the following: payfor at least an
eight (8) hour basic day with time and onehalf or double time for overtime, rest dap and holiday,s
(as applicable); vacation allouaance; paid holidays (as applicable); rallway and unemployrnent
insurance; public liability ard property damage insuranca; health and welfare beneflts;
transportatlon; meals; lodging and supervision. Negotiations for railway labor or collective
bargaining agreements and rate changes authorized by appropriate Federal authorities may
increase flagging rates. Flagging rates in efrec{ at the time of performance by the flaggors will be
used to calculate the flagging costs grrsuant to this Scctlon 7.
8. Pavment Terms. All invoices are due thirty (30) days afler the date of invoice. lf Licensee fails to pay any
monies due to Licensor within thirty (30) days after the involce date, then Liceneee shall pay lnterest on
such unpaid sum from the due date until paid at an annual raF equal to the lesser of (i) the prime rate last
published in The Wall Eteet Jownal in the preceding December plus two and one-half percent (2-1l2Yol, or
(ii) the maximum rate permitted bylaw.
LIGENSOR'S RESERVED RIGHTS
L Reserved Riohts of Use. Licensor excepts and reserves the right, to be exercised by Licensor and any
oher parties who may obtain written permission or authorityfrom Licensor:
9.1 to maintain, use, opelate, rgpair, replace, modify and relocate any utility, power or communication
pipe/lines/cables and appurtenanoes (other than the Electric Supply Line) and other facilities or
strucfures of like character upon, over, under or across the Premises o<isting as of the Effective
Date;
9.2 to construct, maintain, reneq use, operate, ctrange, modify and relocate any tracks or additional
facilitbs, struclures and related appurtenances upon, ovgr, under or rcross the PremiseE; or
9.3 to use the Premises in any manner as Licensor in its sole dbcretion deems appropriate, provided
Lioensor uses all commercially reasonable efforts to avokl mateial interference with the use of the
Premises by Licensee for the purpose specllied ln Sectlon 4 above.
10. Rhht to Reouire Relocation. lf at any time during the term of tris License, Licensor desires the use of its
rail corridor in sucfi a manner as uould, in Lbensot's reasonable opinbn, be lnterfered wlth by the Electric
Supply Llne, Licensee shall, at lb sole expens€, within thirty (30) daye der receiving written notice from
Licensor to such efiect, make such changes in the Elecfic Supply Line as in the sole discretion of Licansor
may be necsssary to avoU interference with the proposed use of Licensor's rail corldor, including, wlthout
limitation, the relocation of the Electric Supply Line, or the consbuction of a new electric line to replace the
Electric Supply Line. Notwithshnding the foregoing, Licensee agrees to make all emergency changes and
minc adjustments, as determined by Licensor in its sole disoetion, to the Electric &rpfly Line prompty
upon Licenso/s request.
LICENSEE'S OPERATIONS
11. Construotion and Maintenance of the Electric Suoolv Line.
11.1 Licensee shall notifu Licensor's Roadmaster, a|100 @nntry Rd, Gurn*y, WY 82214, telephone
(307) 8365299, at lEast ten (10) business days prlor to instrallation of the Electrlc Supply Llne and
prior to enterirg the Premises for any subsequent maintenance thereon. !n the event of
Form 421: Rcv. 20l4)8{}i
Tracking #1$'53661
emergency, Licens€o shall notify Licensor of Licensee's entry onb the Premises at the telephone
number above as soon as practicable and shall prompUy therefrer follo,tr up with written notice of
such entry.
11.2 Lbensee's on-site supervbors shall retairy'maintain a fully executed copy of this License at all times
whlle on the Premises.
11.3 While on the Prembes, Licensee shall use only public roadways to cross from one sHe of
Licensor's tracks to the other.
11.4 Any conbac{ors or subcontrac{ors performing work on the Electric Supply Line or entering the
Premlses on behalf of Lloensee shall be deemed servanb and agents of Licensee for purposes of
this License.
11.5 Under no conditions shall Licensee be permitted to oonduct any tests, investigations or any other
activity using mechanized equipment and/or machinery, or place or store any mechanized
equipment, tools or other materials, within twenty-five (25) feet of the enterline of any railroad
track on the Premises unless Licensee has obtained prior wrltten approvalfrom Lioensor. Llcensee
shall, at itrs sole cost and expense, perform all activities on and about the Premises in sucfi a
manner as not at any time to endanger or interfere wifr (i) the existence or use of present or fufure
kacks, roadbeds, or property of Licensor, (ii) the safe operation and activities of Licensor or
exlstlng third partles, or (iii) the righB or intereots of third partles. lf ordered to cease using the
Premises at any timg by Licensor's parsonnel due to any hazardous condition, Licensee shall
immediately do so. Notwithstranding the foregoing right of Li@nsor, the parties agree that Llcensor
has no duty or obligation to monitor Licensee's use of the Premlses to determlne the safe nature
thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is
safe. Neither the exercise nor the failurE by Lkrnsor to exercise any rights granted in this Section
will alter the liability allocation provided by this License.
11.6 Licensee shall, at its sole cost and expensg, construct and maintain the Ebcfic Supply Line in
such a manner and of such material that the Electic Supply Line will not at any time endarger or
lnterfere wlth (i) the existence or use of present or future tracks, roadbeds, or property of Licensor,
(ii) the safe operation and activities of Lbensor or existing third parties, or (iii) the rights or interests
d third parties. The consfuc'tion of the Elecdric Supply Line shall be completed within one (1) year
of tre Effedve Date, and any subsequent maintenance shall be completed wilhln one (1) par of
initiation. Within fifieen (15) days after completion of the construc'tion of the Electric Supply Line or
the performance of any subsequent maintenarrce thereon, Licensee shall, at Licengee's own cost
and expense, restore the Premises to suhstantially their state as of the Effective Date, unless
othenrise approved in advance by Licensor in writing. On or before expiration or termination of this
Lioense for any reason, Licensee shall, at its sob cost and expense, sunender the Premises to
Liensor pursuant to the terms and conditions set forlh in Sec-tlon %haraol.
11..7 Licensor may direct one or more of its field engineers to observe or inspect the consfuction and/or
maintenance of the Elecfic Supply Line at any time for compliance with the Drawings and
Speciflcations and Legal Requiremants (defined below). lf ordered at any tlme to halt constructlon
or maintenance of the Electric Supply Line by Licensor's personnel due to non-compliance Wth the
Drawings and Specifications or any other hazardous condition, Licensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or
obligation to observe or inspect, or to halt ulork on, the Electdc Supply Line, it being solely
Licensee's responsibility to ensure that the Elecfric Supply Line is constructed and maintained in
strict accordance with the Drawings and Specifications and in a safe and workmanlike manner in
.3-Form 421; Ran.201O801
12.
Tracking #1ffi3661
compllarrce with all terms hereof. Neither the exercise of, nor the failure by Licensor to exertise,
any right granted by this Section will dter in any rinay the liability allocation provided by this Licerpe.
If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform lts oblQations
under thls Sectlon l,l, Lioensor rnay, at iB option and at Licensee's sole expense, anange for the
performanoe of such rrrork as it deems necossary for the safery of its operations and activities.
Licensee shall promptly reimburse Licensor for all cosb and expenses of such work, pursuant to
the terms of Secflon 8. Licensor's fallure to perform any obllgatlons of Licensee shall not alter the
liability allocation hereunder.
11.8 Licensee shall, at its sole cost and expense, construst ard at alltlmes maintain the Elecfic Supply
Llne in accordance with the National Electric Safety Code.
11.9 lf the operation or maintsnance of the Electric Supply Llne at any tlme causes intederence,
including but not limited to physixl interference fom electromagnetic induction, electrostatic
induction, or fiom stray or other currents, with lhe facilities of Licensor or of any lessee or lioensee
of Licensor, or in any manner interfere with the operaUon, maintenance, or uso by Llcensor of lts
right-of-way, tracks, slrucfures, pole lines, signal and communication lines, radio, or other
equipment, devbes, oth€r property or appurtenances thereto, Licensee agrees immediately to
make such changes in the Electric Supply Line and furnish such proteclive devlces and/or
replacement equipment to Llcensor and its lessees or llcensees as shall be necessary, in the
judgment of Licensor's representiative, to eliminate such interference. The cost of such protec{ive
devices and their installations shall be borne solely by Licensee. lf any of the interference covered
by this Section 11.9 shall be, in the judgment of Liconsor, of such Lnportance to the safety of
Licensor's operations m to require immediate corective action, Licensee, upon notice from
Licensor, shall either, at Licenso/s eb6{ion, cease using the Electric Supply Line for any purpose
whatsoever and remove same, or reduce the voltage or load on the Etectric Supply Llne, or take
such olher interim protective measures as Licensor may deem advisable, until the protective
devices and/or replacement equipment required by this Scc[ion ll.9 have been insta]led, put in
operation, tested, and found to be satbfactory to correct the interference.
11.10 Licensee shall, at its sole cost and expense, remove all combuEtible material from aound vvooden
poles on the Premises, if any, and will at all times keep the space around such poles free of such
material, and if removal of such combustible material shall not be attended to with fifteen (15) daye
after havlng been requested by Llcensor to do so, Licensor shall have the dght ilself to perform the
work and Licensee hereby agrees to reimburse Lioensorfor the expense so incuned,
Borino and Excavation.
12.1 Prior to Licensee conducting any boring, excavatbn, or similar work on or about any portion of the
Premises, Liconsee shall explore the proposed location for such rrrtork with hand tools to a depth of
at least three (3) feet belo,v the surface of the gro.rnd to determine whether pipelines or other
structures exiet below the surface, orovided. !1ryL that in lieu of the foregoing, Licensee shall
have the right to use suitable detection equipment or other generally accepted industry practioe
(e.9., consulting with the Underground ServiceE Associalion) to debrmine the exlsterrce or location
of plpelines and other subsurface sfudures prior to drilling or €xcavating with mechanized
equipment. Licensee may request information from Licensor concerning the existence and
approximate location of Licenso/s undergrcund lines, utllltles, and pipelines at or near the vicinlty
of th€ proposed Electric Supply Line by contacting Licengor's Telecommunications Helpdesk at
least thirty (30) business dap prior to installation of the Electric Supply Lirre. Upon receiving
Licenseo's timely request, Licensor will provilJe Licensee with the information Licensor has ln its
possession regarding any existing undergrornd lines, utllitles, and pipelines at or near the vicinity
-4-Form 421: Rev, 201,10801
Trackirp #15€3661
of the proposed Elecbic Supply Line and, if applicable, identfi the location of srch lines on the
Premises pursuant to Ucensor's standard procedures. Licerror does not wanant the muracy or
completenass of information relatlng to subsurface condltlons of the Premises and Licensee's
operations will be subiect at alltimes to the liability provisions herein.
12.2 For all bores greater than 26inch diameter and at a depth less than 10.0 feet belor bottom of rall,
a soi! investlgatlon must be performed by Liensee and revievved by Licensor prbr to consfuc{ion.
This study is to determine if granular material is present, and to pevent subsidence during the
installation Focess. lf the investigation determineE in Lienso/s reasonable opinion $at granular
material is present, Licensor may select a new locatlon for Llcensee's use, or rnay require Licensee
to furnish for Licensor's review and approval, in Licensor's sole discretion, a rernedial plan to deal
with the granular material. Onoe Licensor has approved any such remedial plan in writing,
Licensee shall, at Licensee's sole cost and expense, carry out the approved plan in accordance
wlth all terms thereof and hereof.
12.3 Any open hole, boring, or well, consbucted on the Premlses by Llcensee shall be safely covered
and seolred at all times when Licensee is not working in the actual vicinity th€reof. Following
completion of that portion of the work, all holes or borings constructed on the Premises by Licensee
shallbe:
12.3.1 filled in to sunounding ground levelwith compacied bentonite grout; or
12.3.2 othenrvise secured or retired in accordanoe with any appllcaHe Legal RequinamenL No
excavated materials may remain on Li:enso/s property for more than ten (10) days, but
must be properly disposed of by Licensee in accordanoe with applicable Legal
Requirements.
LIABILTTY ANp TNSURANCE
13. Liabilityandlndemnification.
13.1 For purposes of this License: (a) 'lndemnltecs" means Licensor and Licensods afiiliated
companies, partners, suocessors, assigng, legal representatives, offi@rs, dircctors, shareholders,
employees, and agents; (b) "Liabllltleso means all claims, liabilities, fines, penaltieB, costs,
damag6s, losses, liens, causes of action, suib, demands, judgments, and eleenses (including,
without limitiation, court costs, reasonable aftorneys' fees, costs of inveatigation, remorral and
remediation, and govemrnental oversight oosts) envlronmental or otherwlse; and (c) 'Liceneee
Paltles" means Licensee or Licensee's offi@rts, agents, invitees, licensees, employrees, or
@nbactors, or any party dhectly or indirecfly employed by any of them, or any party they contsol or
exercise controlover.
13.2 TO THE FULLEST EXTEI{T PER]TiITTED BY LAYY, LIGEI{SEE SHALI- AilD SHALL CAUSE
ITS CONTRACTOR TO, RELEASE INDEXNIFY, DEFEND AND HOLD HARULESS
INDEMN|TEES FOR, FROT, AND AGAIITIST ANY AND ALL LIABILITIES OF AIIIY NATURE
KIilD, OR DESCRIPTION DIREfiLY OR IT{DIRECTLY ARISING OUT OF, RESULTII{G FROM,
oR REI-ATED TO (lN W{OLE OR lN PART):
13.2.1 THIS LICEIIISE, INCLUDING, W]THOUT UTITATION, lTS ENVIRONIiEITITAL
PROVISIONS,
13.2.2 Al{Y RIGHTS OR II{TERESTS GRANTED PURSUANT TO THIS LICENSE,
-5-Fqn 421: Rev.201'O8()l
Tracklng #1S3661
13.2,3 LICENSEE'S OCCUPATION AND USE OF THE PREiiISES,
13.2.4 THE ENVIRONiIENTAL CONDITION AND STATUS OF THE PRE]f,!SES CAUSED BY
OR GONTRIBUTEDTO BY LICENSEE, OR
13.2.5 ANY ACT OR OilISSION OF ANY L,CENSEE PARW.
13.3 TO THE FULLEST EXTENT PERTUTTED BY LAW, LICENSEE NOW AND FOREVER WA]VES ANY
AND ALL CLAITS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR IS A
GENERATOR, OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF
THE GOi|PREHENSTVE ENVIRONMENTAL RESPONSE, COMPENSATTON, AND LIABILITY ACT, AS
AMENDED ("CERCLA') OR OTHER ENVTROT{mENTAL LAWS (DEFINED BELOW}. LTCENSEE WLL
INDETINIFY, DEFEND, AND HOLD THE INDE]IINITEES HARMLESS FROM At{Y AND ALL SUCH
CLAIMS. NOTHING IN THIS LIGENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF
ANY INDEMNITEE'S COMMON CARRIER DEFENSES At{D THIS LICENSE SHOULD NOT BE SO
CONSTRUED. IF AITIY AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF At{Y
!1{DEMIIIITEE'S COMTON CARRIER DEFENSES, LICEI{SEE AGREES TO INDETINIFY, HOLD
HARIIILESS, AND DEFEND ]NDEMNTTEES FOR ANY LIABILITIES RELATED TO THAT
CONSTRUCTION OF THIS LICEI{SE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS
TO USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHAL LICENSOR BE
RESPONSIBLE TO LICENSEE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.
13.4 IF AI{Y EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AI{
EIIPLOYEE OF AI\n/ NDEMNITEE, TO THE FULLEST EXTENT PERi'ITTED BY LAW,
LIGENSEE SHALL, A]{D SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INOEMNIFY,
DEFEND, AND HOLD THE INDE]IIN]TEES HARiTLESS FROO, AND AGAITIST ANY
LIABILITIES ARISING OUT OF OR RELATED TO 0N WHOLE OR lN PART) AltlY SUCH
ASSERTION INCLUDING, BUT NOT LIMITED TO, ASSERTIONS OF EMPLOYUENT BY A1{
INDEMNITEE RELATED TO THE FOLLOWI{G OR AITIY PROCEEDINGS THEREUNDER: THE
FEDERAL Ei,PLOYERS'LIABILITY ACT, THE SAFEW APPLIATTICE ACT, THE LOCOTOTIVE
INSPEGTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE
CONSERVATION AND RECOVERY ACT, AITID AI{Y SITILAR STATE OR FEDERAL STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICEI{SEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIII'ATELY CAUSED BY THE GROSS NEGLIGENCE OR UNLLFUL MISCONDUCT OF A}IY
INDEmNTEE, Bt T SHALL APPLY TO ALL OTHER LtABtLtTtES, TNCLUD|NG THOSE ARISTNG FROM
OR ATTRTBUTED TO AiIY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL AGTS, OR
STRICT LIABIUTY OF ANY INDETNITEE.
13,6 Upon written notice from Licensor, Licensee agroos to assume the defense of any larvsuit or other
proceedirB brought against any Indemnitee by any entlty, relating to any matter oovered by this
License for which Licensee has an obligation to assume liability for and/or save and hold harmless
any lndemnitee. Licensee shall pay all costs and expenses incident to snch defenge, induding, but
not limited to, reasonable attorneys' fees, inveatigators' fees, litigation and appeal oxpenses,
settlement payments, and amounts paid in satisfaction of judgments.
14- Personal Prooertv Risk of Loss. ALL PERSONAL PROPERW, INCLUDING, BUT I{OT LIMITED TO,
FIXTURES, EQUIPi'ENT, OR RELATED MATERIALS UPON THE PREMISES WLL BE AT THE RISK
OF LICEI{SEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAIIJIAGE THERETO OR
-6-Forn 121; Rcv. 201t10801
Tr*king #1$53661
THE]T THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE I{EGLIGENCE OF AilY
INDEMNlTEE.
15. lnsurancq. Licensee shall, at its sole cost and expense, procurg and maintain during the life d this Licenee
the follorving insu rance covsrage:
15.1 Commercial General Liabilitv lnsurance. Thb insurance shall contain hoad form confacfual
liability wtth a combined single limit of a minimum of $2,000,000 each occu,renoe and an aggr€gate
limit of at least $4,000,000 but ln m event less than the amount othenrise canisl by Lioensee.
Coverage must be purcfiased on a post 2004 ISO o@urrenoa or equivalent and include coverage
for, but not limited to, the following:. Bodily lnjury and Property Damage. Pelronal lnjury and Advertising lnfury. Fire legalliabilitY. Produsts and completed operatlons
This policy shall also oontain the follodng endorsements or languago, wtrich shall be indbated on
the certificate of insurance:. The definltion of insured contract shall ba amended to remove any exclusion or other limitation
for any work being done within 50 foot of railroad property.. Waiver of subrogation in f;avor of and acceptable to Llcensor.. Mdltlonal Insured endorsement ln favor of and acceptable to Llcensor and Jones Lang LaSalle
Brokerage, lnc.
' Separation of insureds.. The policy shall be primary and non+ontlbuting wlth respect to any insurance canied by
Lloensor.
It is agreed that the workors' compensation and employrrs' llaHllty related exclusions in the
Commerclal General Llability lnsurance policy(s) requircd herein are intended to apply to
employees of the policy holder and shall not apply to Licenso/s employees.
No other endorsements limitlng coverage may be induded on the policy.
15.2 Busjness Automobile lnsurane. Thb insurance shall contain a combined single llmlt of at least
$1,000,000 per oocurrenog, and include coverage for, but not llmiled to the fdlowing:. Bodlly lnJury and property damage.. Any and all vehicles own€d, used or hired.
This policy shall also contain the following endorsements, which shall be indicated on the certlflcate
of insurance:
. Waivsr of subrogation in favor of and acceptable to Licensor.. Additional insured endorsement in favor of and acceptable to Licensor.. Separation of insureds.. The policy shall be prlmary and nonontributlng wlth respec{ to any insurance carried by
Llcensor.
15.3 Workers'Comoensation and Emolovers'Liabilitv lnsurangg. Thls Insurance shall lnclude coverage
for, but not llmlted to:
-7-Form421; Rar.20140801
Tnacking #15€3661
. Llcensee's statutory liability under the workers'compenEation laun of the state(s) in which fie
servi@s are to be performed. lf optional under slate laue, the insurance must cover all
emfloyees anyurEly.
' Employers' Liabllity (Paft B) with limits of at least $500,000 each accident, $500,000 by
disease policy limit, $500,000 bydisease each employee.
This policy shall also contain the following endorcemenb or language, whicfr shall be indicated on
the certificate of insurance:. Waiver of subrogation in favor of and acceptable to Licensor.
15.4 Railroad hotective Liabilitv lnsurance. Thb insurance shall name only Licensor as the lnsured
with coverage of at least $2,fi)0,000 per occurrence and $6,000,000 in the aggregate. The
ooverage obtained under this policy shall only be effec'tive durlng the lnitial installatlon andlor
constructlon of the Elec{ric Supply Llne. THE CONSTRUCTION OF THE ELECTRIC SUPPLY
LINE SHALL BE GOHPLETED WTHIN ONE (1) YEAR OF THE EFFECTIVE DATE. lf further
maintenancs of the Ebctric Supply Line is needed at a later dat€, an addltlonal Rallroad Protecffve
Liability lnsurance Policy shall be required. The policy shall be issued on a standard ISO form CG
00 35 12 03 and include the following:. Endorsed to include the Pollufion Exclusion Amendment.. Endorsed to include the Limited Soepage and Pollution Endorsement.. Endorsed to include Evacuation Expense Coverage Endorsement.. No other endorsoments restricting @verage may be added.
' The original policy must be provided to Licensor prior to performing arry uork or senrioes under
thls License.. Deftnition of "Phyaical Damage to Propert/' shall be erdorged to read: "means direct and
accidental loss of or damage to all property owned by any named lnsurcd and all property in
any named insured's care, custody and control arising out of the act or omissions of the
oonhactor named on the Dedarationo."
ln lbu of providing a Railroad Mectlve Liabtllty Pollcy, for a perbd of one (1) yaar from the
Efrective Date, Licensee may participate in Licensor's Blanket Flallroad Protective Liabili$
lnsurance Policy available to Licensee or its contractor. The limits of covonage are tre same as
above. The cost is St[60.00.
tr I elec't to participaE in Licenso/s Blanket Policy;
tr ! etec{ not to participate in Licensols Blanket Policy.
15.5 OtherReouirements:
15.5.1 Where allowable by law, all policies (apdying to coverage llsted above) shallcontain no
exclusion for punitive damages.
15.5.2 Licensee agrees to waive its rBht of rccovery against Licensor for all claims and suib
against Licensor. ln addition, Licensee's insurert, through the terms of the policy or a
policry endorsem€nt, must waive theh right of subrogaton agalnst Licensor for all daims
and suits, and the certificate of lnsuranoe must rdect the waiver of subrogation
sndorsement. Licsnsee furfier waives its rpht of recovery, and its insurers must also
waive their right of subrogation agaimt Licensor for loss of Llcensee's owned or leased
property, or property under Licensee's @lB, anstody, or control.
-8-Fom 421; Rcrr.20140801
Tracklng #1ffi3661
15.5.3 Ucensee is not allowed to self-lnsure withurt the prlor written consent of Licensor. lf
granted by Licensor, any self-insured retention or other financial responsibillty for claims
shall be covered dkectly by Licensee in lieu of insurance. Any and all Llcensor Ilablllties
that uould othenrube, ln accordance wlth the provisions of this Li@nse, be covercd by
Licensee's insurance will be covered as if Licensee elected not to include a self-insured
retention or other financial responsibilityfor claims.
15.5.4 Prlor to entering the Prcmises, LiEnsee shall furnish to Licensor an acceptable
certificate(s) of insurance induding an original signature of the authorized representative
evidencing the required ooveragg, endorsements, and amendments. Licensee shall
notlff Licensor in writing at least 30 days prior to any canoellation, norrrenewal,
substitution, or material alteration. ln the event of a claim or Iawsuit involving Licensor
arising out of this License, Li@nsee will make avallable any required policy covering
such claim or lawsuit.
15.5.5 Any insurarrce polkry shall be writen by a reputable insuranoe company acceptrable to
Licensor or with a cunent Besfs Guide Rating of A- and Class Vll or better, and
authorized to do business in the state(s) in which the service is to be ptovUed.
15.5.6 lf coverage is purchased on a'Ualms made" basls, Llcensee hereby agroos to maintain
coverage in forca for a minimum of three years after expiration or termination of this
License. Annually, Licensee agrees to provide evidence of such ooverage as required
hereunder.
15.5.7 Licensee reprasents that this License has been thooughly reviewed by Licensee's
insurance agen(slbroker(s), wtro have been instructed by Licensee to procure the
insurance coverage required by thls License. Allocated Loss Expense shall be in
addition to all policy limits for coverages referenced above.
15.5.8 Not more frequently than orrce every fre years, Licensor may reasonably modify the
required insuranoe @verage to reflect then+urent risk management practices in the
rallroad industry and underrrni6ng prac,tices in the insurance industry.
15.5.9 lf any portion of the operation is to be subcontracted by Licensee, Li@nsee shdl require
that the suboonfac'tor shall provide and maintain insurance ooveragc as set forth
herein, naming Licensor as an additional lnsured, and Ehall require that the subcontsactor
shall release, d€fend ard indemnify Licensor to the same exlent and under the same
terms and conditions as Licensee is requhed to Glease, defend and indemnify Licensor
herein.
15.5.10 Failure to provide evidenoe as required by this Section 15 shall entitle, but not require,
Licensor to terminate this License immediately. AccepEnce of a certiflcate that does not
oomply with this Secton shall not operate as a waiver of Licensee's obligations
hereunder.
15.5.11 The fact that insurance (includirg, without limitation, self-instrrance) ls obtained by
Licensee shall not be deemed to release or diminish the liability of Licensee, including,
without limitation, liability under the indemnity provisions of this License. Damages
reooverable by Licensor shall not be limited by the amount of the requlred lnsurance
cov€rage.
Form 42'l ; Rar. 201'{t&1
Tracklng #1S3601
15.5.12 These insurance provlsions are inteMed to be a separate and dbtinc{ obligation on the
part of the Licensee. Therefore, these provisions shall be enforceable and Licensee
shall be bound thereby regardless of whether or not indemnity provisions are determined
to be enforceable.
15.5.13 For purpces of this Section 15, Licensor shall mean "Burlington Northern Santra Fe,
LLC", "BNSF Railway Companf and the suboidiaries, successors, ass'rgns and afrlliates
of each.
COITPLIANCE wnH LAWS. REGULATIONS. AND ENVIRONITENTAL IUIATTERS
16. Comoliance with Laws. Rules. and Reoulations.
16.1 Licensee shall observe and oomply with any and all larw, stratutes, regulations, ordinances, orders,
@venants, restrlctions, or decisions of any court of competent jurisdictbn ('Lcgal Rcquircmenta")
relating to the construclion, maintenance, and use of the Eloctrie Supply Line and the use of the
Premises.
16.2 Prior to entering the Premises, Licsnsee shall and shall cause its contsactor(s) to comply wlth all of
Licenso/s applicable safety rules and regulatlons. Licensee must onsure that each of its
employees, @ntrac[ors, agents or invitees entering upon the Premises completes the safety
orientation program at the Website 'wunr.8A/SFoontactor.com" (the "Safaty Orlentatlon") wihin
one lrsar prior to entering upon the Premises. Addltlonally, Licensee must ensurc that each and
every employee of Licenseo, its contractors, agonts and invitees possess a card certifying
complefon of the Safety Orientation prior to entering upon the Premises. License€ must renav the
Safety Orientation an nually.
16.3 Licensee shall obtain on or before the data it or its contractor entere the Premises, any and all
additlonal rights-of way, easements, licensos and othe agreements relatng to the grant of rights
and interesE ln and/or access to the Premises (collectlvely, the 'Rightr") and such other rights,
lioensqs, permits, authorizations, and approvals (includirB wlthout limitration, any neoossary local,
state, federal or tribal authorizations and environmental permlts) that are nec$sary ln oder to
permit Lbensee to conslruc*, malntiain, own and operate the Electric Supply Line and dhenrvise to
perform its obligatbns hereunder in accordance with the terms and onditions hereof.
16.4 Licensee shall either require that the lnltlal stated term of each sucfr Rights be for a period that
does not expire, in accordance with its ordinary torms, prior to the last day of the term of this
License or, if the initial stated term of any such Right expires in accordance with its ordlnary terms
on a date earlier than the last day of the term of thls Ll@nse, Llcensee shal!, at itg cost, exercise
any rereulal rights thercunder, or otherwise acquire such extensions, additions and/or
replacements as may be necessary, in orde to cause the stated term thergof b be contlnued untl!
a date that is not earlier than the last day of the term of thls Lloense.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own,
operate or use the Electric Supply Une in accordanoe with the terms and condlUons of this License,
this License thereby shal! automatlcally explre upon such expiration or termination of the Right.
Environmental.
'17.1 Uoensee shall stricUy comply with all federal, state and local envimnmental Legal Requiremenb
and regulations in ib use of the Premises, including, but not limited to, the Resource Conaelation
17.
-10-
Form 421; Rcv. 201110801
Tracking #1+53661
and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous
Materials Transportation Act, and CERCLA (oollectively referred to as the Environmcntal l:rvs').
Licensee shall not maintain a treatment, storage, transfer or disposal faclllty, or underground
storage tiank, as deflned by Envlronmental Laws on the Premises. Licensgo shall not release or
snfier the release of oil or hazardous substances, as defined by Environmental Laws on or about
the Premises.
17.2 Licensee @\renants that it will not handle or transport "hazardous naste' or "hazardous
substances", a Trazardous weste" and "hazardous substances' may now or ln the future be
defined by any federal, state, or local govemmental agency or body on the Premises. Licensee
agrees perMically to fumish Licensor with proof, satisfactory to Licensor that Licensee is in
compliance with the provisions of this Scction 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800)
832-il52 of any known (i) release of hazardous substiances on, from, or afrecting the Premlses, (li)
violatbn of Environmental Larrys, or (iii) inspec-tion or inquiry by gpvernmental authorities charged
with enforclng Environmental Lauo with respect to Licensee's use of the Prembes. Licensee shall
use the best efforts to prompUy respond to any rclease on, from, or afrecting the Premises.
Lbensee also shall give Licensor immediate notim of all measures undertraken on behalf of
Licensee to investigate, remediate, respond to or othenrise cure such release or violation.
'17.4 lf Lbensor has notice from Licensee or othenruise of a release or vlolation of Envlronmental Laws
arising in any way with respect to the Electric Supply Line which oocuned or may occur during the
term of this License, Licensor may require Licensee, at Li@nsee's sole risk and expense, to tiake
timely measures to investigate, remediate, respond to or otrarwiee cure such release or vlolaton
affectirB the Premises or Licensor's right-of-way.
17.5 Licensee shall promptly report to Licensor in writirB any oonditions or activities upon the Premlses
known to Licensee which create a risk of harm to p€rsons, property or the environment and ehall
take whatever action is necessary to prevent injury to percons, proporty, or the environment arising
out of such conditions or activities; provlded, however, that Licansee's reporting to Licensor shal!
rpt relieve Licensee of any oblBation whalsoever imposed on it by this Ucense. Licensee shall
promptly respond to Licenso/s request for information regarding said conditiors or activities.
DISCLAI]IIER OF WARRANTIES
18. NoWananties.
18..I LIGENSOR'S DUTIES AflD WARRANTIES ARE LITITED TO THOSE EXPRESSLY STATED IN
THIS LICENSE AND SHALL T{OT INCLUDE At{Y IMPLTED DUTIES OR IMPLIED
WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATPilS ORWARRANTIES HAVE
BEEN TADE BY LIGENSOR OTHER THAN THOSE CONTAINED IN THIS LIGENSE.
LICENSEE HEREBY WAIVES ANY AND ALL YI'ARRANTIES, EXPRESS OR Ii'IPLIED, wlTH
RESPECT TO THE PREMISES OR T'YHIGH ITAY EX]ST BY OPERATION OF LAW OR IN
EQU|TV, INCLUDTNG, WITHOUT LltlTATlON, ANY WARRANW OF ilERCHANTABILITY,
HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18.2 LICENSOR iiAKES NO WARRANTY, REPRESENTATION OR GONDITION OF ANY KIND,
EXPRESS OR TMPLTED, CONCERNING (A) THE SCOPE OF THE LTCENSE OR OTHER
RIGHTS GRANTED HEREUNDER TO LTCENSEE OR (B) WHETHER OR NOT LICEI{SEE'S
CONSTRUCTION, MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC
ll -
Fom 42'l;Rerr.2010801
Tracking #15-53661
SUPPLY UNE wlLL VIOLATE OR INFRINGE UPON THE RIGHTS, IIIITERESTS AltlD ESTATES
OF THTRD PARTIES, INCLUDI}IG, WITHOUT LIMITATION, ANY LEASES, USE RIGHTS,
EASEMENTS AND LIENS OF ANY THIRD PARTY.
19. Disclaimqr of Warranty for Quiet Enioyment. LICENSOR DOES NOT WARRAIIIT ITS TITLE TO THE
PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYTUENT IS MADE.
20. Eviction at Risk of Licensee. ln case of the eviction of Licensee by anyone owning, claiming tiUe to, or
claiming any interest in the Premises, or by the abandonment by Llcensor of the affmted rail conidor,
Licensor shall not be liable O to rEfund Lbensee any compensation paid hereunder, except for the pro-rata
part of any recuning cfiarge paid in advance, or (ii) for any damage Licensee sustiains in connection with
the eviction.
LIENS ATTID TAXES
21. Liens and Chames. Licensee shall promptly pay ard dbcharge any and all liens arising o.rt of any
constructlon, alteralions or repairs done, gufiered or permitted to be done by Licensee on Premises.
Licensor is hereby authorized to post any notices or trake any other action upon or with resp€ct to Premises
that is or may be permitted by law to pro\rent the attachment of any such llens to Premiges; provided,
however, that failure of Licensor to take any such action shall not relieve Lieensee of any obligation or
liablllty under this Sec'tlon 21 or any other Section of this License.
22. TaxS. Licensoe shall pay when due any taxes, assessments or other charges (collec{ively, 'Taxes")
levied or assessed by any governmentd or quasLgovemmental body upon the Electic Supdy Line or any
other improvements constructed or installed on the Premises by or for Licensee (collecfivelX the
"lmprovemeirts") or any Taxes levied or assessed against Licensor or the Prembes that are attributable to
the lmprovements.
DEFAULT. TERifl NATION. At{D SURRE]NDER
23. Dsfault 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 Sec{ion ,5, the folloling events are
also deemed to be events of default pursuant to which Llcensor hag the right to terminate as set forth
below:
23.1 lf default shall be made in any d Licensee's covenanb, agreemenB, or obligations containod in
this License and Licensee fails to cure said default within thirty (30) dap after mitten notice is
provkled to Licensee by Licensor, or in case of any assignment or transfer of this License in
viotation of Sec'tion 26 below, Licensor may, at its optirn, terminate thls Llcense by serving five (5)
days' notice in uriting upon Licensee. Notwlthstanding the foregoing, Licensor shall have the right
to torminat€ this License immediately if Licensee fails to pntide erridence of insurance as required
in Section 15.
23.2 Should Licensee not oomply fully with the obligntions of Sec'tlon 17 regarding the haMling or
transporting of hazardous wasto or ha,ardous material, notwithstanding anything contained in any
other provision of this License, Licensor may, at its option, terminate thls Llcense by seMng flve (5)
da16' notice of termination upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constiMe a waiver of ttre rlght to
terminate this License for any subeequent default or defaults, nor shall any such waiver in anyi way
- 12.
Fsrn421: Rw.20lt0801
24.
Tnacklng #1$53661
affect Licenso/s ability to enforce any Section of this License. The remedy set forth in this Secilon
23 shall be in additlon to, and not ln llmitration of, any other remedies that Lir-nsor may have at law
or in equity.
23.4 ln addition to and not in limitation of Licenso/s rights to terminate this License for failure to provide
evidenoe of insurance or occuryence of defaults as described above, this License may be
terminated by eiher party, at any time, by servlng thlrty (30) days'written notice of termination
upon the other party. Such termination shall not release either parly hereto from any liability or
obligation under the Li@nse, whether of indemnity or otherwige, resulting from any acts, omlsslons
or events happening prior to the date of terminetion or thereafter in case by the terms of the
License it is provided that anything shall or may be done after termination hereof.
Surrender of the Premises.
24.1 On or before expiration or termination of thb License for any reason, Licensee shall, at its sole cost
and expense:
24.1.1 lf so direc-ted by Licensor in writing, remove the lmprovements, the Electric Supply Line
and all appurtenances thersto, or, at the sole discretlon of Licensor, apprcpriately
decommission the Eleclric Supply Llne with a method setisfac'tory to Licersor;
24.1.2 report and restore any damage to the Premises or Liceneo/s other property arislng from,
growing out of, or connected with Llcensee's use of the Premises;
24.1.3 remedy any unsafe condiiions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises ln substantially the condition which existed as of the Efiactive Date.
24.2 Upon any expiration or termination of thb Li@nse, if Llcensee fails to sursnder the Premises to
Licensor or if Licensee fails to oomplete lts obligations under Section 24.1 above (fr
"Rectoration Obllgdions'), Licensee shall have a limited license to enter upon the Premises
solely to the extent necessary for Ucensee to complete the Restoratlon Obligalions, and all
liaUlities and obligations of Llcensee hereunder shall continue in effec'l until the Prcmises are
surendered and the Restonation Obligations are completed. Neither termination nor expiratlon
shall release Licensee ftom any liability or obllgatkrn under thls License, uvtrether of lndemnity or
othenvise, resulting ftom any acts, omissions or events happenirg prior to th€ date of termlnation,
or, lf later, the date when Licensee surrenders th€ Premises and all of the Restoration Obligations
are completed.
24.3 lf Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of
such termination of its tenarrcy, then Licensor may, at its election, either: (i) remove the Elec*rlc
Supply Line and the other Improvements or otherwise restore he Premises, and in sucfi event
Licensee shall, wlthin thirty (30) dap after receipt of till therefor, reimburse Licensor for cost
incurred, (ii) upon written notice to Licansee, take and hold the Elec{ric Supply Line and the other
lmprovements and parsonal prcperty as its sole property, wlthout payment or oUigation to
Licensee therefor, or (iii) specifrcally enforce Licensee's obligation to restore and/or Frrcue any
remedy at law or in equity against Licensee for failure to so restore. Further, if Licensor has
@nsented to the Electric Supply Line and the other lmprovemenb remainlng on the Premises
following termination, Licensee shall, upon request by Licensor, provide a bill of sale in a form
acceptable to Licensor conveying the Electric Supply Line and the other lmprovements to Licensor.
- t3-Form 421; Rw.201{}8()l
Trackhg #1$53661
UISGELLANEOUS
25. Successors and Assions. All provlslons contalned in this Lioense shel! be binding upon, inure to the benefit
of, and be enforceable by the respective successors and assigns of Licensor and Licensee to the same
extent as if each such successor and assign was named a party to thb License.
26. Aqsionment.
26.1 Licensee rnay not sell, assign, transfer, or hlryothecate this License or any rlght obligation, or
interest herein (either voluntarily or by operation of Iaw, mergor, or othenrvise) without the prior
written consent of Licensor, which consent may not be unreasonably withheld or delayed by
Licensor. Any attempted assignment by Licensee ln vlolatlon of this Sectlon 26 shall be a breach
of this Llcense and, in addition, shall be voidable by Lioensor in its sole and absolute discretion.
26.2 For purposes of thb Sectlon 26, the word "assign' shall include without limitatlon (a) any sale of
the equlty lnterests of Licensee followlng which the equity interest holders of Licensee immediately
prior to such salo orvn, dkectly or indiec{y, less than 50% of the combined voting pouer of the
outrstanding voting equity interests of Licensee, (b) any sale of all or substanthlly all of the asseb
of (i) Licensee and (ll) to the extent such entlties exist, Licensee's parent and subsidhrles, taken as
a whole, or (c) any reorganization, recapitalization, merger or consolldation involving Licensee.
Notwithstanding the foregoing, any reorganization, recapitalization, merger or consolldatlon
following which the equity intereEl holders of Llcensee immedlately prlor to such reorganization,
recafitalizatlon, merger or consolidation own, direcUy or indirectly, at least 50% of the combined
voting pourcr of the outstanding voting equity interests of Licensee or any su@essor thereto or the
entity resulting fion such reorganization, recapltallzation, merger or consolldation shall not be
deemed an asslgnment. THIS LICENSE SHALL NOT RUN WITH THE l4ND WTIHOUT THE
EXPRESS WRITTEN CONSENT OF LIGENSOR, SUCH CONSENT TO BE lN LICENSOR'S
SOLE DISCRETION.
26.3 Notwithstanding the provisions of Sectlon 26.{ above or anything contained in this Licanse to the
contrary, if Licansee sells, ass(7ns, transfers, or hypothecates this Licenee or any interost herein in
contravention of the provisions of thls Llcense (a 'Purpodcd Arsignment") to another party (a
'Purported Tnansferce"), tha Purported Trarsferee's enjoyment of the rights and fivileges
granted under this License shall be deemed to be the Purported Transfer€€'s agreernent to be
bound by all of the terms and provisions of this License, lncludirq but not limlted to the obligation to
comply wlth the provisions of Sec'tlon l5 above conceming insurance requirements- ln addition to
and not in llmitration of tho foregoing, Licensee, for itself, its successors and assigns, shall
indemnify, defend and hold harmless Licensor for all Liabllltles of any nature, kind or desoiption of
any person or entity directly or indirectly arising out of, resulting from or related to (in whole or in
parr) a Purported Assignmenl
26,4 Tle provisions of this Section 26 shall survive the explration or earlier terminaUon of this License.
27 - Notices. Any notice, invoi@, or other writing required or permitted to be given heleunder by one party to
the other shall be in writing and the same shall be given aM shall be deemed to have been served and
given if (i) placed in the United States mail, certified, return recelpt requested, or (ii) deposated into the
custody of a nationally recognized overnight delivery service, addressed to the pafi to be notified at the
address br sucfr pafl specified below, or to such other address aE the pafi to be notlfled may deslgnate
by giving the other party no less than thirty (30) dayn'advance rrritten notice of such change ln address.
-14-
Form 421 ; R€\r. 20140801
28.
Tnacklng #1$53661
lf to Ucensor Jones Lang LaSalle Brokenage, Inc.
4300 Amon Carter Blvd., Sulte 100
FortWorth, TX 76155
Attn: Permits/Licenses
BNSF Rallway Company
23Ol Lou Menk Drive
GOB-sW
FortWorth TX 76131
Attn: Senkr Manager Real Estate
Rocky Mountaln Povrcr
1407 W. North Temple
Suite 110
Salt Lake City, UT 84116
with a copyto:
lf to Licensee:
Suryival. Neither termination nor expiration wlll rdease either party from any liability or oHigation under
thb License, wfiether of indemnity or othenrise, resulting fnom any ac[s, omissions or events happening
prior to the date of termination or expiration, orr if later, the date when the Hec{ric Supply Line and the
other lmprovements arc removed and the Premises are restored to ib condltlon as of the Effective Date.
Recordation. lt is understood and agreed that this Lkrnse shall not be placed or allourcd to be placed on
public record.
Aoolicable Law. All questions concerning the interpretation or applietion of provisions of this License shall
be decided according to the substantive laws of the State of Texas without regard to conflids of laur
provisions.
Severabilitv. To the maximum extent posslble, each provision of this Llceme shall be interpreted in such
manner as to be effective and valid under appllcabie law, but if any provlsbn of this Llcsnse shall bo
pohibited by, or held to be lnvalid under, applicable law, such provision shall be ineffective solely to the
oxtent of such prohibition or invalklity, and this shall not invalidate the remainder d such provision or any
other provision of this License.
lntegration. This License is the full and complete agreement beturcen Liceneor and Licensee with respec{
to all matters relating to Licensee's use of the Plemiges, and supersedes any and all other agreements
betureen the parties hercto rdatlng to Licensee's use of the Prernises as desdib€d herein. How€ver,
nothing herein is intended to terminde any survtuing obligation of LicenseE or Licensee's obligation to
defend and hold Licensor harmless in any prior written agreement between the parties.
Joint and Several Liability. lf Licensee consists of t$ro or more parties, all the covenanE and agreements
of Liensee herein contained shdl be the jolnt and several covenanls and agreemenb of such parties.
Waiver. The rrtralver by Licensor of the breach of any provision herein by Licensee shall in no way impai
the right of Licensor to enforce that provision for any subsequent breach thereof.
lnteroretation.
35.1 Thb License shall be interpreted in a neutral mannsr, and not more strongly for or agalnst any
party based upon the sour@ of the drafismanship; both partles hereby agree that thig License shall
not be subject to the principle that a contrac't vrould be construed against the party yrhifi drafted
the same. Article titles, headings to sections and paragraphs and the table d contents (if any) are
- 1s - Form 421: Rev. 201'0801
31.
34.
35.
37.
Tracking #15-53661
lnserted for convenience of reference only and are not intended to be a part or to affect the
meaning or interprctation hereof. The exhibit or exhibits refened to herein shall be construed with
and as an integnal part of this Lioense to the same extent as if they were set forth verbatlm herein.
35.2 As used herein, "include", "incJudes" and "including" are deemed to be folloupd by "wilhout
limitation" wtrether or nol they are in fact follouod by such words or words of llke lmport; 'Uriting",
'written' and comparable terms refer to prlntlng, typing, llthognaphy and other means of
reproduclng uords in a visible form; ncferences to any pe6on are also to that person's suocessors
and permitted asspns; "hereof', "herein", "hereunde/'and oomparable terms refer to the enthety
hereof and not to any particular artlcle, sec'tlon, or other suMlvlsion hereof or attiachment h€r€to;
references to any gender include references to the mascdine or feminine as the context requirce;
refererrces to the plura! include the singular and vice versa; and rEferences to thls Licenso or other
documenb are aB amended, modified or supplemented from tlme to time.
Countemarts. This License may be executed in multiple counterparts, each of wtrich shall, for all purposss,
be deemed an original but wtrich together shall constitut€ one and the sarne instrument, and the slgnature
pages from any counterpart may be appended to any other counterpart to assemble fully executed
documents, and counterparts of this License may also be excharBed via email or electronic facsimile
machines and any emall or electronic facsimile of any partys signature shall be deemed to be an orQinal
signature for all purposes.
Ucensor's Representiativq. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF
Raihvay Company.
END OF PAGE. SIGNATURE PAGE FOTLOWS
-16-Form '121; Rev.4140801
Tnacking #15-&3861
This Licensa has been duly executed by the parties hereto as of the dab belqr each party's slgnature; to
be sffectfue, howtsver, as of the Effectve Date.
!t9E[!998:
BNSF RAIL}YAY COilIPANY a Delaware corporation
By: Jones Lang LaSalle Brokerage, lnc.,
43fi) Amon Carter Blvd, Suite 1fi)
FortWorth, TX 76155
By:
Title:
Date:
Ed Darter
Senior Vice President - National Accounts
LIGENSEE:
ROGnf MOUNTAIi{ POUUER an uninoorporated dMsion of PaciliCorp
Bf 1407W. North Temple
Sulte 110
Salt Lake Clty, UT 84116
By
TiUe:
Date:
Form 421; Rw.201'(}$l
COORDII'.ATE SYSTEM: WY E
EXHIBIT IIAII
ATTACHED TO CoI.ITRACT BEruIEEN
BNSF RAILWAY COMPANY
AND
ROCI(Y MOUNTAIN POWER,
AN UNINCORPORATED DIVISION OF PACIFICORP
N
t
_.i
I
I
r ffiih'{t,
SCALE: 1 lN.= f 00 FT.
POWDE-R B|VEB ._. DlV.
L.S. 0005 MP: 148.76
DATE 1110312015
'':'3", ;, '- * t-*o*r6ci
.'*..1.-. ,.*E&r*
j-r WCenterSt
. NEWPOLE
,.,.* - NETA'POLEOUTSIDE RW
TYPE NUMBER
ELECTRIC
AT DOUGLAS
COUNTYOF CONVERSE
SECTION: I
TOWNSHIP: 32N
MNGE: 71W
MERIDIAN: 6PM
flo
!tN
-
r-^
a3
iIIIitIII!
Lr---.-
j4 13
DESCRIPTION OF WRES OVER TRACK
WRES L@ATEOAS SHOWN BOLD
OISTANCEABOVEVOLTAGE TOP OF RAIL
11.171<\t 33.9',
STATE OF \A/Y
CLEARS RAILWAY
COMPANYS VI/IRES
N'A
TR
/
:iHmffH[r*,"-,
TRACKTNG No.ll$30E1
(\f,FI
6lu!lq
l!rJla,
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=
REVISION 3 DRAWNG NO.84994