20160318Notice of Affiliate Transaction.pdf

YPeclnConp
March 18,2016
VA OWRNIGHT DELIVERY
Idaho Public Utilities Commission
472West Washington
Boise,lD 83702-5983
Attention: Jean D. Jewell
Commission Secretary
Re: PacifiCorp Notice of Affiliate Transaction
Case No. PAC-E-05-8
R. Jeff Richards
Wce President and General Counsel
1407 W. North Temple, Suite 320
Salt Lake CiO, UT 84116
E01-2204734 OfJice
j elf , ri c h ar d@p aciJi co tp. c o m
r-l':_
:-i i-
-t-
(,r)c)(noa-
lB,3erl#?J
'-A i'l
coI
?*m
J(,
\P
LAr
Dear Ms. Jewell:
This letter will serve as notice pursuant to Commitmer*I l7(2), incorporated in the
Idaho Public Utilities Commission OrderNo. 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 "Berkshire
Hathaway Energy Company" or "BHE"), of an affiliated interest transaction with BNSF Railway
Company (BNSF) for a license allowing Rocky Mountain Power to install certain electric
facilities along or across BNSF property in Yakima, Washington. A verified copy of the License
For Electric Supply Line Across or Along Railway Property, Tracking #15-3009 (License), is
included with this Notice as Attachment A.
PacifiCorp is a wholly-owned indirect subsidiary of Berkshire Hathaway Energy Company
(BHE). BHE is a subsidiary of Berkshire Hathaway, Inc. 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.
PacifiCorp's Yakima Operations is rebuilding its lines to increase system reliability, including
the addition of an overhead crossing to the distribution system take-off line out of the River Road
substation in Yakima, which will require crossing BNSF's property.
BNSF uses standardized pricing for these types of licenses. PacifiCorp will pay $3,500 for the
license and an additional $4,750 in additional processing, engineering, insurance and expediting
fees pursuant to, or in conjunction with, the License. Obtaining the license 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 license, Company 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.
Idaho Public Utilities Commission
March 18,2016
Page2
Please do not hesitate to contact me if you have any questions.
Best Regards,
R. JeffRichards
Vice President and General Counsel
PacifiCorp
Enclosures
Law Departrnent Approved ContractNo. 15-3009
BF#
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, Irrespective of Voltage, Overhead or Undergrormd)
THIS LICENSE ("License"), made as of the lst day of December, 2015 ("Effective
Date') by and betvyeen BNSX'RAILWAY COMPAI[Y, a Delaware corporation ("Licansor")
and PACIFICORP, an Oregon corporation ("Licensee").
NOW TIIEREFORE, in consideration of the mutual covenants contained herein, the
panies agrec to the following:
GENERAL
1. Licensor hereby $mts Licensee a non-exclusive license, subject to all rights, interests,
and estates of third parties including, without limitatiorl any leases, sE rights,
easernents, liens or other encumbrances, and upon the terms and conditions set forttr
below, to constnrct, maintain, and use in sfirict accordance with the drawings and
specifications approved by Licensor as part of Licensee's application process ("the
Ihawings and Specifications") an electric supply line containing a morimum of four (4)
conductors, together with its supporting or containing structures ("Electric Supply Line')
across or along the premises of Licensor at or near the station of Fruitvale, County of
Yakima, State of Washingtorl Line Segmeal QQ,!,Q,, Mile Post 1.51, shown by bold line
upon the print No. 65572, datrd,l2l04D0l5 marked "Exhibit A', attached hereto and
made a part hereof ('Premises").
2. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
Licensees, easement beneficiaries or lien holders, if any, or interfere with the use of such
improvements.
3. Licensee shall use the Premises solely for constnrction, maintenance, and use of an
Electric Supply Line in accordance with the Drawings and Specifications. Licensee shall
not use the Premises for any other purpose. Licensee shall not use or store tuzardous
substances, as defined by the Comprehensive Envinrnmental Responsc, Compensation,
and Liability Act as amended f'CERCLA') or petoleum or oil as defined by applicable
Environmental Laws on the Premises.
4. In case of the eviction of Licensee by anyone owning or claiming title to or any interest
in the Premises, Licensor shall not be liable to refimd Licensee any compensation paid
hereunder or for any damage Licensee sustains in connection therewith.
5. Any contractors or subcontractors performing work on the Electic Supply Line or
entering the Premises on betralf of Licensee, shall be deemed servants and agents of
Licensee for purposes of this License.
Form42l; Rev.0426O5
This License shall commence on the Effective Date and shall continue for a period of
twenty-five (25) years, subject to prior termination as hereinafter desctibed.
COMPENSATION
Law Deparfrrent Approved
TERM
(c)
Contract No. l5-3009
BF#
Licensee shall pay Licensor, prior to the Effective Date, the sum of THREE
THOUS$ID FM HUNDRED DOLLARS ($3,500.00) as compensation for
the use ofthe Premises.
Licensee agrees to reimburse Licensor (within thirty (30) days after receipt of
bills therefor) for all costs and expemes incurred by Licensor in connection with
Licensee's use of the Premises or the presence, constuction, maintenance, and use
of the Electric Supply Line, incltrding but not limited to the firmishing of
Licensor's Flagman and any vehicle rental costs incurred. The cost of flagger
services provided by the Railway, when deemed necessary by the Railway's
representative, will be borne by the Licensee. The estimated cost for one (l)
flagger is $800.00 for an eight (8) horn basic day with time and one-half or double
time for overtime, rcst days and holidays. The estimated cost for each flagger
includes vacation allowance, paid holidays, Railway and unemplolment
insumnce, public liability and property darnage insurance, health and welfare
benefits, tansportation, meals, lodging and supervision. Negotiations for
Railuray labor or collective bargaining agreements and rate changes authorized by
appropriate Federal authorities may increase actual or estimated flagging rates.
The flagging rate in effect at the time of perfonnance by the Contractor hereunder
win be used to calculate the actual costs of flagging pursuant to this paragraph.
All invoices are due thirry (30) days after the date of invoice. In the event that
Licensee shall fail to Fy any monies due to Licensor within ttrirty (30) days afrer
the invoice date, then Licensee shall pay interest on such unpaid sum from thirty
(30) days after its invoice date to the date of paymurt by Licensee at an anntral
rate equal to (i) the grcater of (a) for the period January I through June 30, the
prime rate last published n The Wall Street Jownal in the preceding Decembcr
plus two and one-half percent Q ln%), and for the poiod July I through
December 31, the prime rate last published n The Wall Street Jourtul in the
preceding June plus tw'o and one-half percent Q lDYo), or (b) twelve percent
(12W, or (ii) the maximuur rate permitted by law, whichever is less.
COMPLIANCE WITH LAWS
8. (a)Licensee shall observe and comply with any and all laws, statutes, regulations,
ordinances, orders, covenants, restrictions, or decisions of any court of competent
jurisdiction C'LegaI Requirements") relating to the conshuctio4 maintenance and
use of the Electric Supply Line and the use of the Premises.
(a)
(b)
7.
2
Form 421; Rcv. 04/26/05
Law Departrrent Approved ContractNo. 15-3009
BF#
O) Prior to entering the Premises, Licensee shall and shall causc its contactor to
comply with all Licensor's applicable safety rules and regulations. Prior to
comnrencing any work on the Premises, Licensee shall complete and shall require
its contractor to complete the safety-taining program at the following Internet
Website "http://contractororientation.com". This training must be completed no
morc than one year in advance of Licensee's entry on the Premises.
DEI'INITION OF COST AI\[D EXPENSE
9. For the purpose of this License, "cost' or "costs" "exllense" or "expensesn includes, but is
not limited to, acfiral labor and material costs including all assignable additives, and
material and supply costs at current value where used.
RIGIIT OF LICENSOR TO USE
Licensor excepts and reserves the righl to be exercised by Licensor and any other parties
who may obtain wriuen pennission or authority from Licensor:
(a) to maintairu rEnew, use, operate, change, modi$ and relocate any existing plpe,
power, communication lines and appurtenances and other facilities or stnrctures
of like character upon, over, under or aclo$r the Premises;
(b) to constnrct, maintain, renew, useo operate, chonge, modify and relocate any
tracks or additional facilities or stnrctures upon, over, under or across the
Premises; or
G) to use the Premises in any uranner as the Licensor in its sole discretion deems
appropriate, provided Lice,nsor uses all commercially reasonable efforts to avoid
material interfer,ence with the use of the Premises by Licensee for the purpose
specified in Section 3 above.
LICENSEEIS OPERATIONS
10.
(a)11.Licensee shall notiff Licensor's Roadmaster, fuidy Vulgas at602 West 3d Street"
Ellensburg, WA 98926, telephone [phone], at least five (5) business days
prior to constnrction of the Electic Supply Line and pnor to entering the
Premises for any subsequent maintenance thereon.
In performing the work described in Section 3, Licensee shall use only public
roadways to cross from one side of Licensot's tracks to the other.
Licensee shall, at its sole cost and expense, construst and at all times maintain the
Electric Supply Line in accordance with the National Electic Code.
If the operation or maintenance of said Electic Supply Line shall at any time
cause interference, including but not limited to physical interference from
(b)
12. (a)
o)
Form 421; Rev.04/26O5
Law Departnent Approved ContractNo. 15-3009
BF#
electromagnetic induction, electrostatic induction, or from stray or other currents,
with the facilities of the Licensor or of any lessee or Licensee of the Licensor, or
in any manner interfere with the operation, maintenance, or use by the Licensor of
its right-of-way, tacks, structtres, pole lines, signal and communication lines,
radio, or other equipment, devices, other property or appurtenances thereto,
Licensee agrees immediately to make such changes in its Electric Supply Line
and furnish such protective devices and/or replacement equipment to Licensor and
its lessees or Licensees as shall be necessary, in the judgement of the Licensoy's
representative, to eliminate such interferEnce. The cost of such protective devices
and their installations shall be borne solely by Licensee. If any of the interference
covered by this para$aph shall be, in the judgement of the Licensor, of such
importance to the safety of the Licensor's operations as to require immediate
corrective action, Licensce, upon notice from the Licensor, shall either, at the
Licensor's election, cease using said Electric Supply Line for any purpose
whatsoever and remove sarne, or reduce the voltage or load on said Electric
Supply Line, or take such other interim protective measur€s as the Licensor may
deem advisable, until the protective devices and/or replacement equipment
required by this paragraph have been installed, put in operatioq tested, and found
to be satisfactory to correct the interference.
Under no conditions shall Licensee be permitted to conduct any tests,
investigations or any other activity using mechanized equipment and/or
machinery, or place or store any mechanized equipmeng tools or other materials,
within twenty-five (25) feet of the centerline of any railroad track on the Prernises
rmless Licensee has obtained prior written approval from Licensor. Licensee
shall, at its sole cost and expense, perform all activities on and about the Prremises
in such a manner as not at any time to be a source of danger to or interference
with the existence or use of present or futurc tracks, roadbed or property of
Licensor, or the safe operation and activities of Licensor. If ordered to cease
using the Pre,mises at any time by Licensot's personnel due to any hazardous
condition, Licensee shall immediately do so. Norwithstanding the foregoing right
of Licensor, the parties agree that Licensor has no duty or obligation to monitor
Licensee's use of the Premises to determine the safe nature thereof, it being solely
Licensee's responsibility to ensure that Licensee's use of the Prernises is safe.
Neither the exercise nor the failure by Licensor to exercise any rights granted in
this Section will alter the liability allocation provided by this License.
Licensee shall, at its sole cost and expense, and subject to the supervision of
Licensor's Roadmaster, locate, constnrct and maintain the Electric Supply Line in
such a manner and of such materiat that it will not at any time be a source of
danger to or interference with the existence or use of present or futtre tacks,
roadbed or property of Licensor, or the safe operation and activities of its raihoad.
Further, the Electric Supply Line shall be constnrcted, installed and maintained in
conformity with tlre plans and specifications shown on the print attached hereto as
Exhibit A and made a part hereof (whiclu if prescnt are to be deemed part of the
Drawings and Specifications). Licensor may direct one of its field engineers to
(a)13.
o)
Form 421; Rev.01026O5
Law Department Approved ContractNo. 15-3009
BF#
observe or inspect the consbuction and/or maintenance of the Electric Supply
Line at any time for compliancc with the Drawings and Specifications. If ordercd
at any time to halt constnrction or maintenance of the Electic Supply Line by
Licensor's personnel due to non-compliance with the same or any other hazardous
condition" Licensee shall immediately do so. Norwithstanding the foregoing right
oflicensor, the parties agree that Licensor has no duty or obligation to observe or
inspect, or to halt work oq the Electric Supply Line, it being solely Licensee's
responsibility to ensure that ttre Electric Supply Line is constructed in strict
accordance with the Drawings and Specifications and in a safe and workmanlike
manner in compliance with all terms hercof. Neither the exercise nor the failure
by Licensor to exercise any right granted by this Section will alter in any way the
liability allocation provided by this License. If at any time Licensee shall, in the
sole judgment of Licensor, fail to properly perform its obligations under this
Section, Licensor may, at its option and at Licensee's sole expense, arrange for
the performance of such work as it deems necessary for the safety of its
operations and activities. Licensee shall promptly reimburse Licensor for all costs
and expenses of such worh upon receip of an invoice for the same. Licensor's
failure to perform any obligations of Licensee shall not alter the liability
allocation hereunder.
Licensee shall, at its sole cost and expelse, remove all combustible material from around
wooden poles 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)
days after having been requested by Licensor to do so, Licensor stnll have the right its€lf
to perform the work and Licensee hereby agrees to reimburse Licensor for the expeure so
incured.
During the constnrction and any subsequent maintenance performed on Electic Supply
Line, Licensee shall perform such work in a manner to preclude damage to the property
of Licensor, and preclude interference with the operation of its railroad. The constnrction
of the Electric Supply Line shall be completed within one (1) year of the Effective Date.
Upon completion of the construction of the Electric Supply Line and after performing
any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense,
restore Licensor's premises to their formEr state as of the Effective Date of this License.
If at any time during the terrr of this License, Licensor shall desire the use of its rail
corridor in such a manner as woul4 in Licensor's reasonable opiniorl be interfered with
by the Electric Supply Line, Licensee shall, at its sole expense, within thirb/ (30) days
after receiving written notice from Licensor to such effect, make zuch changes in the
Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid
interference with the proposed use of Licensor's rail conidor, including, without
limitation, the relocation of the existing or the constuction of new a Electric Supply
Line.
17. (a) Prior to Licensee conducting any boring work on or about any portion of the
Pnemises, Licensee shall explore the proposed location for such work with hand
14.
15.
16.
Form 421; Rev. 04f26/0li
Law Departrrent Approved ContractNo. 15-3009
BF#
tools to a depth of at least three (3) feet below the surface of the ground to
determine whether pipelines or other stnrctures exist below the surface, providd,
however. that in lieu of the foregoing, the Licensee shall have the right to use
suitable detection equipment or other generally accepted industry practice G.s..
consulting with the Underground Services Association) to deterrrine the existence
or location of pipelines and other subsurface sbuctures prior to drilling or
excavating with mechanized equipment. Upon Licensee's written request which
shall be made thirty (30) business days in advance of Licensee's requested
constnrction of the Electic Supply Line, Licensor will provide Licensee any
information that Licensor's Engineering DeparEnent ha.s in its possession
conceming the existence and approximate location of Licensor's underground
utilities and pipelines at or near the vicinity of the proposed Electric Supply Line.
Prior to conducting any such boring work, the Licensee will review all such
material. Licensor does not warrant the accuracy of information relating to
subsurface conditions and Licensee's operations will be subject at all times to the
liability provisions herein.
For all borcs greater than 26-inch diameter and at a depth less than 10.0 feet
below bottom of rail, a soil investigation will need to be performed by the
Licensee and reviewed by Licensor prior to construction. This study is to
determine if granular material is present and to prevent subsidence during the
installation process. If the investigation detennines in Licensor's reasonable
opinion that granular material is present, Licensor may select a new location for
Licensee's us€, or may require Licensee to furnish for Licensor's review and
approval, in its sole discretion a remedial plan to deal with the granular material.
Once Licensor has approved any such remedial plan in writing, Licensee shall, at
its sole cost and expense, carry out the approved plan in accordance with all temrs
thereofand hereof.
Any open hole, boring or well constructed on the Premises by Licensee shall be safely
covered and secured at all times when Licensee is not working in the actual vicinity
thereof. Following completion of that portion of the worh all holes or borings
constructed on the Premises by Licensee shall be:
(b)
18.
(a)
o)
filled in to surrormding ground level with compacted bentonite grout; or
otherwise securcd or retired in accordance with any applicable Legal
Requirement All excavated materials shall not remain on Licensor's property for
more than ten (10) days and shall be properly disposed of by Licensee in
accordance with applicable L,egal Requirements.
Upon termination of this License, Licensee shall, at its sole cost and expense:
r€move all of its equipment from the Premises;
remove the Electric Supply Line at Licensor's sole discnetion;
19.
(a)
o)
6
Form 42t; Rcv. O1/26/05
Law Departrnent Approved ContractNo. 15-3009
BF#
(c) report and restore any damage to the Premises arising from, growing out of or
connected with Licensee's use of the Premises;
(d) rernedy any unsafe conditions on the Premises created or aggravated by Licensee;
and
(e) leave the Premises in the condition which existed as of the Effective Date of this
License.
20. Licensee's on-site supervision shall retain/maintain a fully-executed copy of this License
at all times while on the Premises.
LIABILITY
21. (a) TO TIIE FIILLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL
RELEASE,INDEMNTFT, DEITEND AI\D HOLD HARMLESS LICENSORAI\iD LICENSOR'S AFFILIATED COMPAI\TIES, PARTITERS,
succEssoRS, AssIGNs, LEGAL REPRESENTATTVES, OFFICERS,
DTRECTORS, STTAREITOLDERS, EMPLOYEES AND AGENTS
(CoLLECTMLY, "INI)EMNTTEES") rO& X'ROM AI\ID AGAINST
Arry AnD ALL CLNMS, LIABILITIES, FIITTES, PENALTTES, COSTS,
DAMAGES, LOSSES, LTENS, CAUSES O['ACTION, SIIITS, DEMANDS,
JUDGMENTS AND EXPENSES (TNCLUDTNG, WTTHOUT LILITTATION,
COURT COSTS, ATTORNEYS' FEES AND COSTS OF
INYESTIGATION, REMOVAL AI\ID REMEDIATION AIID
GoVERI{MENTAL OVERSIGITT COSTS) ENyIRONMENTAL OR
oTrrERwIsE (COLLECTTVELY "LIABILITIES") OF AI\ty NATTTRE,
KIND OR DESCRIPTION OF ANTY PERSON OR ENTITY DIRECTLYoR INDIRECTLY ARTSTNG Orrr OF, RESULTING IROM OR
RELATED TO (trY WHOLE OR rN PART):
(r) TIIIS LICENSE,INCLUDING, WITIIOUT LIMITATION, ITS
EIYVIROI\IMENTAL PROVISIONS,
(ii) AI\[Y RIGIITS OR INTERESTS GRANTED PTJRSUANT TO
TIIIS LICENSE,
(iii) LICENSEE'S OCCIIPATION AND USE OF THE
PREMISES,
(iv) THE EI\TVIRONMENTAL CONDHON AND STATUS OFTIIE PREMISES CAUSED BY OR CONTRIBUTED BY
LICENSEE, OR
Form 421; Rcv. O426/05
Law Department Approved ContractNo. 15-3009
BF#
(v) AnW ACT OR OMISSION OF LICENSEE OR LICENSEE'S
oFFICERS, AGENTS, IIWTTEES, EMPLOYEES, OR
CoNTRACTORS, OR AnryONE DIRECTLY OR INDIRECTLY
EMPLOYED BY AI\TY OF TIIEM, OR ANTYONE TIIEY CONTROL
oR EXERCISE CONTROL OVE&
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED
TO, IN WIIOLE OR IN PART, AI\TY I\TEGLIGENCE OF AI\TY
INDEMMTEE. THE OI\ILY LIABILITIES WITH RESPECT TO WHICH
LICENSEE'S OBLIGATION TO INDEMNItr"Y TIM INDEMMTEES
DOES NOT APPLY ARE LIABILITIES TO THE EXTENT
PROXIMATELY CAUSED BY TTIE GROSS IVEGLIGENCE OR
WILLFUL MISCONDUCT OF AIt INDEMNITEE.
FI,IRTHE& TO TIIE FULLEST EXTENT PERJVIITTED BY LAW,
NOTWITHSTAIYDING THE LIMITATION IN SECTION 2l(a),
LICENSEE SHALL NOW AI\ID FOREVER WAIVE AI\TY AI\ID ALL
CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT
LIABILITY, I\iEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AI\t
"olvl\ER"T "oPERATOR"T "ARRANGER", OR "TRANSPORTER"WITH RESPECT TO TIIE. ELECTRIC ST]PPLY LINTE T'OR TIIE
PURPOSES OF CERCLA OR OTIIER EIYVIRONMENTAL LAWS.
LICENSEE WILL INDEMMFT, DETEI\D AND HOLD TIIE
II\TDEMMTEES HARMLESS FROM ATTY AIYD ALL SUCH CLAIMS
REGARDLESS OF' TIIE NEGLIGENCE OF TIIE INDEMMTEES.
LICENSEE FURTIIER AGREES THAT TIIE USE OF THE PRE]VIISES
AS CONTEMPLATED BY TIIIS LICENSE SHALL NOT IN AI\[Y WAY
ST]BJECT LICENSOR TO CLAIMS THAT LICENSOR IS OTHER THAN
A COMMON CARRIER FOR PTJRPOSES OF EIYYIROI\IMENTAL LAWS
AND EXPRESSLY AGREES TO INDEMMFY, DEFEND, AND HOLD
THE INDEMMTEES HARMLESS T'OR ANY A}ID ALL SUCH CLAIMS.
IN NO EVENT SHALL LICENSOR BE RESPONSIBLE FOR THE
EITTVIROI\IMENTAL CONDITION OF THE PREMISES.
TO TIIE FULLEST EXTENT PERMITTED BY LAW, LICENSEE
FURTHER AGREES, REGARDLESS OF A}TY NEGLIGENCE OR
ALLEGED FTEGLIGENCE OF AIIY INDEMMTEE, TO INDEMMFT,
AI\ID HOLD HARMLESS THE INDEMIVTEES AGAINST AIID ASSITME
TIIE DEFENSE OF AI\TY LIABILITMS ASSERTED AGAINST OR
SUFFERED BY AI\[Y INDEMMTEE I.INDER OR RELATED TO TIIE
FEDERAL EMPLOYERS' LIABILITY ACT ("FELA") WITEFTEVER
EMPLOYEES OF LICENSEE OR AI\TY OF ITS AGENTS, IITVITEES, OR
CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES
OF AI\TY INDEMNITEE OR OTIMRWISE. THIS INDEMMTY SIIALL
ALSO EXTEI\D, ON THE SAME BASIS, TO FELA CLAIMS BASED ON
ACTUAL OR ALLEGED VIOLATIONS OF AI\Y I',EDERAL, STATE OR
o)
(c)
Form 421; Rev. (X12d05
Law Department Approved ContractNo. l5-3009
BF#
LOCAL LAWS OR REGIILATIONS, INCLIITIING BUT NOT LINIITED
TO THE SA,FETY APPLIATTCE ACT, Tr{E BOILER INSPECTION ACT,
TIIE OCCUPATIONAL IIEALTH AIYD SAFETY ACT, TIIE RESOTJRCE
CONSERVATION AI\ID RECOVERY ACT, AIID AI\[Y SIMILAR STATN
OR FEDERAL STATUTE.
(d) Upon written notice from Licensor, Licensee agrees to assume the defense of any
lawsuit or other proceeding brought against any lndemnitee by any entity, relating
to any matter covered by this License for which Licensee has an obligation to
assume liability for and/or save and hold harmless any Indernnitee. Licensee shall
pay all costs incident to such defense, including, but not limircd to, attorneys'fees,
investigators' fees, litigation and appeal expenses, settlement payments, and
amounts paid in satisfaction ofjudgments.
PERSONAL PROPERTY WAIVER
22. ALL PERSONAL PROPERTY OF LTCENSEE, INCLTTDING, BUT NOT
LTMITED TO, FD(TIIRES, EQUIPMENT, OR RELATED IUATERIALS IIPON
TrrE PREMISES WILL BE AT TIIE RrSK OF LICENSEE ONLY, AI\ID NO
INDEMNITEE WILL BE LIABLE FOR AI\TY DAMAGE TIIERETO OR TIIEFT
THEREOF, WIIETIruR OR NOT DUE IN WHOLE OR IN PART TO TIIE
NEGLIGENCE OF ANW INDEMMTEE.
INSURAI\ICE
23. Licensee shall, at its sole cost and expense, procure and mainain during the life of this
Agreernent the following insurance coverage:
A. Commercial General Liability lnsurance. This insurance shall contain broad form
contractual liability with a combined single limit of a minimum of $2,000,000
each occurrence and an aggregate limit of at least $ 4,000,000. Coverage must be
purchased on a post 1998 ISO occrrrence or equivalent and include coverage for,
but not limited to, the following:
o Bodily lqiury and Property Damage
o Personal Injury and Advertising Injury. Fire legal liability
O Products and completed operations
This policy shall also contain the following endorsernents, which shall be indicated on the
certificate of insurance:
a It is agreed that any workers' compensation exclusion does not apply to
LicEnsor's payments related to the Federal Employers Liability Act or a
Licensor Wage Continuation Program or similar programs and any payments
made are deemed not to be either payments made or obligations assumed
under any Workers Compensation, disability benefits, or unemployment
compensation law or similar law.
9
Form 421; Rev. 0426/05
Law Deparfinent Approved ContactNo. 15-3009
BF#
o The definition of instued contract strall be amended to remove any exclusion
or other limitation for any work being done within 50 feet of railroad property.o Any exclusions related to the explosion, collapse and underground hazards
shall be removed.
No other endorsements limiting coverage may be included on the policy.
B. Business Automobile Insnrance. This insurance shall contain a combined single
limit of at least $1,000,000 per occrurence, and include coverage for, but not
limitd to the following:
o Bodily injury and property damage
a Any and all vehicles owned, used or hired
C. Workers Compensation and EmFloyers Liability lnsurance. This insurance shall
include coverage for, but not limited to:o Licensee's statutory liability urder the worker's compensation laws of the
state(s) in which the work is to be performed. If optional under State law, the
insurance must cover all employees anyway.o Employers' Liability (Part B) with limits of at least $500,000 each accident,
$500,000 by disease policy limit, S500,000 by disease each employee.
D. Railroad Protective Liability Insurance. This insurance shall name only the
Licensor as the Insured with coverage of at least $2,000,000 per occurrence and
$6,000,000 in the aggregate. The coverage obtained under this policy shall only
be effective during the initial installation and/or constnrction of the Electic
Supply Line. THE CONSTRUCTION OF THE ELECTRIC ST PPLY LntE
SIIALL BE COMPLETED WTTETN ONE (1) YEAR OF TIIE EFFECTTVE
DATE. If firttrer maintenance of the Electric Supply Line is needed at a later
date, an additional Railroad Protective Liability Insurance Policy shall be
required. The policy shall be issued on a standard ISO form CG 00 35 l0 93 and
include the following:o Endorsed to include the Pollution Exclusion A.mendment (ISO form CG 28 3l
10 93)
a Endorsed to include the Limited Seepage and Pollution Endorsement.
a Endorsed to include Evacuation Expense Coverage Endorse,ment.
a No other endorsements restricting coverage may be added.
a The original policy must be provided to the Licensor prior to performing any
work or services tmder this Agreement
In lieu of providing a Railroad Protective Liability Policy, Licensee may participate in
Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or
its contractor. The limits of coverage are the same as above. The cost is $_
tr I elect to participate in Licensor's Blanket Policy;
El I elect not to participate in Licensor's Blanket Policy.
10
Form 421; Rev. (X/26/05
Law Department Approved ContractNo. 15-3009
BF#
Other Requirements:
Where allowable by law, all policies (applyrng to coverage listed above) shall contain no
exclusion for punitive damages and certificates of insurance shall reflect that no
exclusion exists.
Licensee agrces to waive its right of recovery against Licensor for all claims and suits
against Licensor. ln addition, its insurers, through policy endorsement waive their right
of subrogation against Licensor for all claims and suits. The certificate of insurance must
reflect waiver of subrogation endorsemenl LicEnsee further waives its right of recovery,
and its insurers also waive their right of subrogation against Licensor for loss of its
owned or leased property or property under its care, custody or contnol.
Licensee's insurance policies through policy endorsement must include wording which
states that the policy shall be primary and non-contibuting with respect to any insurance
carried by Lice,nsor. The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if applicable,
Railroad Protective) shall include a severability of inrcrest endorsement and shall name
Licensor and Iron Horse Development LLC as an additional insured with respect to wort
performed under this agreement. Severabiltty of interest and naming Licensor and hon
Horse Development, LLC as additional innneds shall be indicated on the certificate of
insurance.
Licensee is not allowed to self-insure without the prior written consent of Licensor. If
granted by Licensor, any deductible, self-insured retention or other financial
responsibility for claims shall be covered directly by Licensee in lieu of insurance. fuiy
and all Licensor liabilities that would otherwise, in accordance with the provisions of this
Agreemen! be cover€d by Licensee's insurance will be covered as if Licensee elected not
to include a deductible, self-insured retention, or other financial responsibility for claims.
Prior to commencing the Worh Licensee shall fumish to Licensor an acceptable
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorse'ments, and amendments and referencing the
contract audit/folder number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notif Licensor in
writing at least 30 days prior to any cancellation, non-renewal, substitution or material
alteration. This cancellation provision shall be indicated on the certificate of insurance.
Upon rcquest from Licensor, a certified duplicate original of any required policy shall be
furnished.
Any instrance policy shall be witten by a reputable insurance company acceptable to
Licensor or with a current Best's Guide Rating of A- and Class VII or better, and
authorized to do business in the sate(s) in which the service is to be provided.
lt Form 421; Rev. 04/26/05
Law Departnent Approved ContractNo. 15-3009
BF#
Licensee WARRAN'TS that this License has beeir thoroughly reviewed by Licensee's
instrance agent(s/broker(s), wtro have been instnrcted by Licensee to procure the
insurance coverage required by this Agreement. Allocated Loss Expense shall be in
addition to all policy limits for cover4ges referenced above.
Not more frequenfly than once every five years, Licensor may reasonably modiff the
required insurance coverage to reflect then-current risk management practices in the
railroad industry and underwriting practices in the insurance industry.
If any portion of the operation is to be subcontacted by Licensee, Licensee shall require
that the subcontactor shall provide and maintain insurance coverages as set forth herein,
naming Licensor as an additional insure4 and shall require that the subcontractor shall
release, defend and indemnifu Licensor to the same extent and under the same tenns and
conditions as Licensee is required to release, defend and indernniff Licensor herein.
Failure to provide evidence as required by this section shall entifle, but not require,
Licensor to terminate this License immediately. Acceptance of a ce*ificare that does not
comply with this section shall not operate as a waiver of Licensee's obligations
hereunder.
The fact that insurance (including, without limitation, self-insurance) is 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
recoverable by Licensor shall not be limited by the amount of the required insurance
coverage.
For purposes of this section, Licensor shall mean "Burlington Northern Santa Fe
Corporation", "BNSF Railway Company" and the subsidiaries, successors, assigns and
affiliates of each.
EI\TVIROI\IMENTAL
24. (a) Licemsee shall strictly comply with all federal, state and local envirorunental laws
and regulations in its use of the Premises, including, but not limited to, the
Resource Conservation and Recovery AcL as amended (RCRA), the Clean Water
Act, the Oil Pollution Act, the Hazardous Materials Transportation Act CERCLA
(collectively refened to as the "Environmental [,aws'). Licensee shall not
maintain a treatnent" storagen fiensfsl or disposal facility, or underground storage
tank, as defined by Environmental Laws on the Premises. Licensee shall not
release or suffer the release of oil or hazardous substances, as defined by
Environmental Laws on or about the Premises.
O) Licensee shall give Licensor immediate notice to Licensor's Resource Operations
Center at [phone] of any release of hazardous zubstances on or from the
Premises, violation of Environmental Laws, or inspection or inquiry by
governmental authorities charged with enforcing Environmental Laws with
Form 421; Rcv. 04/26/05
Law Deparlment Approved ContractNo. 15-3009
BF#
(c)
respect to Licensee's use of the Premises. Licensee shall use the best ef[orts to
promptly respond to any rclease on or from the Prernises. Licensee also shall give
Licensor immediate notice of all measr.ues undertaken on behalf of Licensee to
investigate, remediate, respond to or otherwise cure such release or violation.
In the event that Licensor has notice from License,e or otherwise of a release or
violation of Environmental Laws arising in any way with rcspect to the Electic
supply Line which occurred or may occur during the temr of this License,
Licensor may require Licensee, at Licensee's sole risk and expense, to take timely
measrrEs to investigate, remediate, respond to or otherwise cure such release or
violation affecting the Premises or Lice'nsot's right-of-way.
Licensee shall promptly report to Licensor in writing any conditions or activities
upon the Premises known to Licersee which create a risk of harm to persons,
property or the environment and shall take whatever action is necessary to prevent
injury to persons or property arising out of such conditions or astivities; providd
however, that Liceirsee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly
respond to Licensor's request for infomration regarding said conditions or
activities.
ALTERATIONS
25. Licensee may not make any alterations to the Premises or permanenfly affix anything to
the Premises or any buildings or other structuies adjacent to the Premises without
Licensoy's prior written consent.
NO WARRANTIES
25. LICENSOR'S DUTIES AI\ID WARRANTIES ARE LIMITED TO THOSE
EXPRESSLY STATED IN TIIIS LICENSE ATID SIIALL NOT INCLUDE AI\TY
IMPLTED DUTIES OR IMPLTED WARRANTIES, NOW OR rN TrrE'. TTUTURE.
NO REPRESENTATIONS OR WARRANTIES IIA\'E BEEN MADE BY
LICENSOR OTIIER TIIAN THOSE CONTAII\IED IN TEIS LICENSE.
LICENSEE IIEREBY WAIVES A]\TY AI\ID ALL WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO TIIE PREMISES WHICH MAY EXIST BY
oPERATION OF LAW OR IN EQUrrY, INCLUDING, WTTHOIIT
LIIIIITATION, AIYY WARRANTY OF MERCHANTABILITY, HABITABILMY
OR FITI\TESS FOR A PARTICT]LAR PURPOSE.
OTIIET ENJOYMENT
27. LICENSOR DOES NOT WARRANTT ITS TITLE TO TIIE PROPERTY NOR
T'NDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION
OR USE THEREOF. NO COVENAI\IT OF QUIET ENJOYMENT IS MADE.
(d)
13
Form 421; Rev. (X/26/05
Law Departnent Approved ContractNo. 15-3009
BF#
DEFATILT
28. If default shall be made in any of the covenants or agreements of Licensee contained in
this document, or in case of any assignment or tansfer of this License by operation of
Law, Licensor rnay, at its option, terminate this License by serving five (5) days'notice in
writing upon Licensee. Any waiver by Licensor of any default or defaults shall not
constitute a waiver of the right to terminate this License for any subsequent default or
defaults, nor shall any such waiver in ar,y way affect Licensor's ability to e,nforce any
Section of this License. The remedy set forth in this Section 28 shall be in addition to,
and not in limitation of, any other remcdies that Licensor may have at law or in equity.
LTENS AIYD CHARGES
29. Licensee shall promptly pay and discharge any and all liens arising out of any
constructior5 alterations or repairs done, suffered or permitted to be done by Licensee on
Prcmises. Licensor is hereby authorized to post any notices or take any other action upon
or with respect to Premises tbat is or may be permitted by law to prevent the attachment
of any such liens to Premises; provided, however, that failure of Licensor to take any
such action shall not relieve Licensee of any obligation or liability under this Section 29
or any other Section of this License. Licensee shall pay when due any taxes, assessments
or other charges (collectively, "Tax,es'o) levied or assessed upon the Improvements by any
governmental or quasi-govenrmental body or any Taxes levied or assessed against
Licensor or the Premises that are attributable to the Improvements.
TERIVIINATION
30. This License may be terminated by Licensor, at any time, by serving thirty (30) days'
wriuen notice of termination upon Liceruee. This License may be terminated by
Licensee upon execution of Licensoy's Mutual Termination Letter Agreement then in
effect. Upon expiration of the time specified in such notice, this License and all rights of
Licensee shall absolutely cease.
31. If Lice,nsee fails to surrender to Licensor the Premises, upon any terrrination of this
License, all liabilities and obligations of Licensee heretrnder shall continue in effect mtil
the Premises are surrendered. Termination shall not release Licensee from any liability or
obligation, whether of indemnity or otherwise, resulting from any events happening prior
to the date oftermination.
ASSIGI\IMENT
32. Neither Licensee, nor the heirs, legal representatives, successors, or assigns of Licensee,
nor any subsequent assignee, shall assign or tansfer this License or any interest herer&
without the prior \rritten consent and approval of Licensor, which may be wittrheld in
Licensoy's sole discretion.
t4
Fomr42l; Rcv. B/26/Gi
Law Departnent Approved ContractNo. 15-3009
BF#
NOTICES
33. Any notice required or permitted to be given hereunder by one party to the other shall be
in uriting and the same strall be given and shall be deenrd to have been served and grven
if (i) placed in the United States mail, certified, return receip requested, or (ii) deposited
into ttre custody of a nationally recognized overnight delivery senrice, addressed to the
party to be notffied at the address for such party specified below, or to such other address
as the party to be notified may designate by grving the other party no less than thirty (30)
days' advance written notise of such change in address.
If to Licensor: BNSF Railway Company
2500 Lou Menk Dr. -AOB-3
Fort Wortlu TX 76131
Ath: Land Revenue Management
with a copy to: Iron Horse Development, LLC
Attn: Railroad Property Manageurent
I l l University Parkway, Suite 200
Yakima, WA 98901
If to Licensee: PacifiCorp
825 NE Multnomah Stneel Ste 1700
Portland, OR 97232
SI.TRVTYAL
34. Neither termination nor expiration will release either party from any liability or
obligation under this License, ufrether of indemnity or otherwise, resulting from any acts,
omissions or eve,nts bappening prior to the date of termination or expiration, or, if later,
the date when the Electric Supply Line and improvements are removed and the Premises
are restored to its condition as of the Effective Date.
RECORDATION
35. It is understood and agreed that this License shall not be placed on public record.
APPLICABLE LAW
36. All questions concenaing the interprctation or application of provisions of this License
shall be decided according to the substantive laws of the state of Texas without regard to
conflicts of law provisions.
SEVERABILITY
37. To the manimun extent possible, each provision of this License shall be interp,reted in
such manner as to be effective and valid under applicable law, but if any provision of this
15
Form 421; Rcv. Bf26/05
Law Departrnent Approved Contract No. l5-3009
BF#
License shall be prohibited by, or held to be invalid under, applicable law, such provision
shall be ineffective solely to the extent of such p,rohibition or invalidity, and this shall not
invalidate the remainder of such provision or any other provision of this License.
INTEGRATION
38. This License is the full and complete agreement between Licensor and Licensee with
respect to all matten relating to Licensee's use of the Premises, and supersedes any and
all other agreements between the parties hereto relating to Licensee's use of the Premises.
However, nothing herein is intended to terminat€ any surviving obligation of Licensee or
Licensee's obligation to defend and hold Licensor harmless in any prior written
agreement between the parties.
IIISCELLANEOUS
39. In the event that Licensee consists of two or more parties, all the covenants and
agreemeirts of Licensee herein contained shall be the joint and several covenants and
agreements of such parties.
40. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way
impair the right of Licemsor to enforce that provision for any subsequent breach thereof.
Iron Horse Development LLC is acting as representative for BNSF Railway Company.
IN WITNESS WIIEREOF, this License has been duly executed, in duplicate, by the parties
hereto as of the day and year first above written.
fthb portion intentionally l$ blank]
t6
Form 42I ; Rcv. 0rl/26/05
[.aw Departrrent Approved ContractNo. 15-3009
BF#
BNSF RAILWAY COMPANTY
Jones Lang LaSalle Brokerage,Inc.
It's Attonrey in Fact
4300 Amon Carter Blvd., Suite 100
Fort Worth, TX 76155
PACIX'ICORP
825 NE Multrornah Street, Ste 1700
Portland, OR 97232
By:
Tifle:
Ed Darter
Senior Vice President - National Accounts
By:
Name:
Form 421 ; Rcv. 0'[/26/05
t7
COORDINATE SYSTEM: wA S TRACKING NO. 15€OO9
Ettl(\lq
ltulEo.
=
EXHIBIT'A'
ATTACHED TO Co0{TRACT BETV\EE}I
BNSF RAILWAY COMPANY
AND
N
PACIFICORP
SCALE: 1 tN.= l0_ FT.NORTHWEST DIV.
YAKIMATO NACHES SUBDM.
L.S. 044^l MP: 1.51
DN|E 1210/,12015
{. *,
*
$md'y,' S$t r
SECTION: 13
TOWNSHIP: 13N
RAI{GE: lEE
MERIDIAN: WLLM
I()TE.AL R/WLEAI}ED BY 8F.3552 TO CENTRAL- uA${t{GTot{ RAtUiQrD COrrrryW t)ArE 1123/iUX.. ., FR()tl YAXIIIATO FRJfN'&E
TI{IS BRANCH UNE IS LilIERAGREETETTTO
uASHr{GTq{ CEI{IRALRR @.. tNC. By$11103,
BN 85&[ OAIED 7zefiS8UrTH EXCEmOT€AS I{OTED
N)TE: P:tri,.Dlbd l2SSlS HEREINTO
RELEASEAI INIEREST UNOER PURCITASE
AltD 8Al FAGREEIEilT; FROil SEC. 13Tl3N,
RISE TO SEC.4 Tlat{, RrTE DATED, .rrLY A, 1St,
BEII|EEI{ UAstllilgfoil CElrrnAL RA||-ROAD
ArD 8Urur(rT()N NOrrHERir RAtIOm OO.ioTE I. R v\rurlERAGREEEin lO. BN s83, $lrtos
TO$Ast{r{GTOir CArRALRATROAD CO. r{C. DA'IE
trdlron Ave
rrtitlrttr--.---r---r--- r---t---.--a
07.2$rt80 FROII tlP OJ2!TO llP 1.1017 IUIH
srr&,Ecf,To FIEER oPnc RoHTs.
t'r&l
b --.--r'---.---t-F-r---r---.---rTO: },IACHES
-
: tr:l I : :; i rr_-. .t : r::b Irrl..Nl .r
,l i?
rijiirrl-.---.!tr'r -l-i-ii-i-!-. r r-l-L- --,1- aait-*,i,.,--.,'..,iT.gi#SlS
ffi ii w*t#i '
l,:..;,-"fii!': a::* ,41 n,, &,r ,
f - Hewss'eou
TYPE
EI.ECTRIC -
AT FRUITVALE
DESCRIPTION OF WRES OVER TRACK
WRES TOCATED AS SHOW'I BOTI)
DISTANCEABOVE CLEARS RAILU'qYNUMEER VOLTAGE TOP OF RAIL COO'PAI{YS WRES
12.51(v _ 30',
STATE OF WA
N/A
COUNTY OF YAKIMA JNC
REVlSlof,l I DRAWNG NO.65572