20161214Notice of Affiliate Transaction.pdf

R .C EIVED
~PACIFl[ORR 'DEC It,
11 c::·~uc
December 14, 2016
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702-5983
Attention: Jean D. Jewell
Commission Secretary
:· .::.~)r i\l lSSION
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
801-220-4734 Office
jeff. [e-mail]
This letter will serve as notice pursuant to Commitment I 17(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 "Berkshire
Hathaway Energy Company" or "BHE"), provides notice of ongoing ordinary course affiliated
interest transactions from time to time with BNSF Railway Company ("BNSF"). Rocky
Mountain Power respectfully requests that the Commission consider this notice a blanket notice
of ongoing license transactions, and allow Rocky Mountain Power to not file notice of
individual, ordinary course of business transactions with BNSF going forward.
PacifiCorp (or the "Company") 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 PacifiCorp and
BNSF in some PacifiCorp jurisdictions.
In the ordinary course of business, PacifiCorp is often required to obtain crossing license
agreements from BNSF for Company facilities that require crossing BNSF property (Licenses).
Instances of such Licenses are included as Attachments with this Notice. Attachment A includes
a verified copy of the License for Electric Supply Line Across or Along Railway Property,
Tracking #16-55721 and Attachment B includes a verified copy of the License for Electric
Supply Line Across or Along Railway Property, Tracking #16-55722 (Attachments).
Attachment A allows the Company to install a fiber optic line, above or below ground, crossing
tracks and railroad property in Klamath Falls, Oregon. Attachment B allows the Company to
install two transmission lines and one distribution line crossing tracks in Klamath Falls, Oregon.
Jean D. Jewell
Notice of Affiliate Transaction
December 14, 2016
BNSF uses standardized pricing for these types of Licenses. The fees are set by BNSF and are
non-negotiable. The current fees charged by BNSF for these types of Licenses include the
following: (i) an application processing fee of $775.00; (ii) a permit fee starting at $3,6001 (iii) a
protective liability insurance policy fee of $460.00; and (iv) a contractor fee for flaggers of
$800/day BNSF also uses standardized documentation for these types of Licenses with non­
negotiable terms and conditions.
Obtaining the Licenses is in the public interest because it allows PacifiCorp to install and
maintain facilities necessary to provide electric service and to meet its obligation to provide safe
and reliable electric service. Without the Licenses, PacifiCorp would not be able to meet its
obligation to provide electric service, because the property owner, BNSF is the only entity that
can provide the Licenses to the Company.
Please do not hesitate to contact me if you have any questions.
R. Jeff Richards
Vice President and General Counsel
PacifiCorp
Enclosures
1 Current permit fees are $3,600 for areas less than 200'. For anything over 200' BNSF charges the Company a
price per square foot based on comparable land values in the area. This price is non-negotiable.
ATTACHMENT A
License for Electric Supply Line Across or Along
Railway Property, Tracking #16-55721
((0)) JONES LANG
LASALLE.
November 28, 2016
PacifiCorp
Attention: Mr. Scott Mease
825 NE Multnomah Street
Suite 1700
Portland, OR 97232
Dear Mr. Mease:
Jones Lang LaSalle Americas, Inc.
4300 Amon Carter Blvd, Suite 100
Fort Worth, Texas 76155
tel [phone]
16-55721
Attached please find a copy of the requested contract for execution by an official authorized to execute contract
agreements on behalf of your company. Please print two (2) copies execute and return both copies with original
signature for completion on part of BNSF Railway Company c·BNSF") to this office, along with the following
requirements:
• A check in the amount of $8,025.00 payable to BNSF Railway Company which covers the contract
fee(s).
Please note the agreements cannot be executed by BNSF without an approved insurance certificate. If there are
any issues with your Insurance, you will be contacted by a member of the Risk Management team of BNSF
Railway.
1. A Certificate of Insurance as required in the agreement.
2. A separate pollcy for Railroad Protective Liability Insurance as required In the agreement (ORIGINAL
POLICY MUST BE PROVIDED). BNSF Railway Company will be the only insured party; OR;
In lleu of providing a separate policy for Railroad Protective Liability Insurance, you may participate in the
BNSF's Railroad Protective Policy by checking the appropriate box in the contract and including an additional
$460.00 with your check.
PLEASE ADVISE IF THIS PROJECT IS ARRA FUNDED.
Acceptance and deposit of any check by BNSF does not constitute an agreement between BNSF and Licensee
for the requested license. BNSF shall not be obligated to hold the check in a separate fund, but may commingle
the funds with other funds of BNSF, and in no event shall BNSF be responsible for interest on said funds.
The enclosed permit is not a binding agreement and shall become binding only when, and if, it is executed by you
and fully approved and executed by BNSF Railway Company. Upon completion on behalf of BNSF, one fully
executed counterpart will be returned for your records.
The specifications/plans you provided may differ from BNSF's minimum specification
requirements. Therefore, prior to your Installation, please review the ExhlbH A to determine the
specifications necessary for your installation.
Please be informed that if contracts, fees, and insurance are not returned within sixty (60) days, the processing
fee will increase to $1,550.00.
Sincerely,
~'na O'Dahzar
Katrina Salazar
Associate Manager Permits
Attachment
Tracking #16-55721
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, Irrespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective , 2016,
(the "Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and
PACIFICORP, an Oregon corporation ("Licensee").
In consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Grant of License. Licensor hereby grants Licensee a n0t:,-exclusive license, subject to all rights, interests,
and estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict
accordance with the drawings and specifications approved by Licensor as part of Licensee's application
process (the "Drawings and Specifications"), an electric supply line containing a maximum of ten (10)
conductors, together with its supporting or containing structures (collectively, the "Electric Supply Line"),
across or along Licensor's rail corridor at or near the station of Klamath Falls, County of Klamath, State
of Oregon, Line Segment 0055, Mile Post 0.39, as shown on the attached Drawing No. 67562A, 67562B
& 67562C dated November 11, 2016, attached hereto as Exhibit NAN and Incorporated herein by
reference (the "Premises").
2. Term. 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 described.
3. Existing Improvements. 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, repair,
maintenanoe or replacement of such improvements.
4. Use of the Premises. Licensee shall use the Premises solely for construction, maintenance, and use of
the Electric Supply Line in accordance with the Drawings and Specifications. 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 affix anything to the Premises or any buildings or other structures adjacent to the Premises
without Licensor's prior written consent.
COMPENSATION
6. License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Eight Thousand, Twenty­
Five and No/100 Dollars ($8,025) as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "cost" or "costs" and "expense" or "expenses" includes, but Is not
limited to, actual labor and material costs including all assignable additives, and material and
supply costs at current value where used.
7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs
and expenses incurred by Licensor in connection with Licensee's use of the Premises or the
presence, construction and maintenance of the Electric Supply Line, including but not limited to
the furnishing of Licensor's flaggers and any vehicle rental costs incurred. Licensee shall bear
the cost of flagger services and other safety measures provided by Licensor, when deemed
necessary by Licensor's representative. Flagging costs shall include, but not be limited to, the
followlng: pay for at least an eight (8) hour basic day with time and one-half or double time for
overtime, rest days and holidays (as applicable); vacation allowance; paid holidays (as
applicable); railway and unemployment insurance; public liability and property damage insurance;
health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for
Form 421; Rev. 20140801
-1 -
Tracking #16-55n1
railway labor or collective bargaining agreements and rate changes authorized by appropriate
Federal authorities may increase flagging rates. Flagging rates In effect at the time of
performance by the flaggers will be used to calculate the flagging costs pursuant to this Section
7.
8. Payment Terms. All invoices are due thirty (30) days after the date of invoice. If Licensee falls to pay
any monies due to Licensor within thirty (30) days after the Invoice date, then Licensee shall pay Interest
on such unpaid sum from the due date until paid at an annual rate equal to the lesser of (I) the prime rate
last published in The Wall Street Journal In the preceding December plus two and one-half percent (2-
1 /2% ), or (ii) the maximum rate permitted by law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Rights of Use. Licensor accepts and reserves the right, to be exercised by Licensor and any
other parties who may obtain written permission or authority from Licensor:
9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or communication
pipe/lines/cables and appurtenances (other than the Electric Supply Line) and other facHities or
structures of like character upon, over, under or across the Premises existing as of the Effective
Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional
facilities, structures and related appurtenances upon, over, under or across the Premises; or
9.3 to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided
Licensor uses all commercially reasonable efforts to avoid material interference with the use of
the Premises by Licensee for the purpose specified in Section 4 above.
10. Right to Require Relocation. If at any time during the term of this License, Licensor desires the use of Its
rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Electric
Supply Line, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from
Licensor to such effect, make such changes in the Electric Supply Line as in the sole discretion of Licensor
may be necessary to avoid interference with the proposed use of Licensor's rail corridor, including, without
limitation, the relocation of the Electric Supply Line, or the construction of a new electric line to replace
the Electric Supply Line. Notwithstanding the foregoing, Licensee agrees to make all emergency changes
and minor adjustments, as determined by Licensor in its sole discretion, to the Electric Supply Line
promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Supply Line.
11.1 Licensee shall notify Licensor's Roadmaster, Glenn Monti at 1800 Laverne Ave, Klamath Falls,
OR 97601, telephone [phone], or email [e-mail], at least ten (10) business
days prior to Installation of the Electric Supply Line and prior to entering the Premises for any
subsequent maintenance thereon. In the event of emergency, Licensee shall notify Licensor of
Licensee's entry onto the Premises at the telephone number above as soon as practicable and
shall promptly thereafter follow up with written notice of such entry.
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all
times while on the Premises.
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of
Licensor's tracks to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes
of this License.
Fonn 421: Rev. 20140801
-2 -
Tracking #16-55721
11 .5 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
equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad
track on the Premises unless Licensee has obtained prior written approval from Licensor.
Licensee shall, at its sole cost and expense, perform all activities on and about the Premises in
such a manner as not at any time to endanger or Interfere with (I) the existence or use of present
or future tracks, roadbeds, or property of Licensor, (II) the safe operation and activities of Licensor
or existing third parties, or (iii) the rights or Interests of third parties. If ordered to cease using the
Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall
immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that
Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the
safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the
Premises 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.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Electric Supply Line in
such a manner and of such material that the Electric Supply Line will not at any time endanger or
Interfere with (i) the existence or use of present or Mure tracks, roadbeds, or property of Licensor,
(II) the safe operation and activities of Licensor or existing third parties, or (iii) the rights or interests
of third parties. The construction of the Electric Supply Line shall be completed within one (1)
year of the Effective Date, and any subsequent maintenance shall be completed within one (1)
year of initiation. Within fifteen (15) days after completion of the construction of the Electric Supply
Line or the performance of any subsequent maintenance thereon, Licensee shall, at Licensee's
own cost and expense, restore the Premises to substantially their state as of the Effective Date,
unless otherwise approved in advance by Licensor in writing. On or before expiration or
termination of this License for any reason, Licensee shall, at Its sole cost and expense, surrender
the Premises to Licensor pursuant to the terms and conditions set forth in Section 24 hereof.
11.7 Licensor may direct one or more of Its field engineers to observe or inspect the construction and/or
maintenance of the Electric Supply Line at any time for compliance with the Drawings and
Specifications and Legal Requirements (defined below). If ordered at any time to halt construction
or maintenance of the Electric Supply Line by Licensor's personnel due to non-compliance with
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 work on, the Electric Supply Line, it being solely
Licensee's responsibility to ensure that the Electric Supply Line is constructed and maintained In
strict accordance with the Drawings and Specifications and in a safe and workmanlike manner in
compliance with all terms hereof. Neither the exercise of, nor the failure by Licensor to exercise,
any right granted by this Section will alter in any way the llablllty 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 11, Licensor may, at its option and at Licensee's sole expense,
arrange for the performance of such work as It deems necessary for the safety of its operations
and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Section 8. Licensor's failure to perform any obligations of Licensee
shall not alter the liability allocation hereunder.
11.8 Licensee shall, at its sole cost and expense, construct and at all times maintain the Electric Supply
Line in accordance with the National Electric Safety Code.
11 .9 If the operation or maintenance of the Electric Supply Line at any time causes interference,
including but not limited to physical interference from electromagnetic induction, electrostatic
induction, or from stray or other currents, with the facilities of Licensor or of any lessee or licensee
of Licensor, or in any manner interfere with the operation, maintenance, or use by Licensor of its
right-of-way, tracks, structures, pole lines, signal and communication lines, radio, or other
equipment, devices, other property or appurtenances thereto, Licensee agrees immediately to
make such changes in the 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
judgment of Licensor's representative, to eliminate such Interference. The cost of such protective
Fonn 421; Rev. 20140801
-3 -
12.
Tracking #16-55721
devices and their installations shall be borne solely by Licensee. If any of the interference covered
by this Section 11.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediate corrective action, Licensee, upon notice from
Licensor, shall either, at Licensor's election, cease using the Electric Supply Line for any purpose
whatsoever and remove same, or reduce the voltage or load on the Electric Supply Line, or take
such other Interim protective measures as Licensor may deem advisable, until the protective
devices and/or replacement equipment required by this Section 11.9 have been Installed, put In
operation, tested, and found to be satisfactory to correct the interference.
11.10 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden
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)
days after having been requested by Licensor to do so, Licensor shall have the right itself to
perform the work and Licensee hereby agrees to reimburse Licensor for the expense so Incurred.
Boring and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any portion of
the Premises, Licensee shall explore the proposed location for such work with hand tools to a
depth of at least three (3) feet below the surface of the ground to determine whether pipelines or
other structures exist below the surface, provided, however, that in lieu of the foregoing, Licensee
shall have the right to use suitable detection equipment or other generally accepted industry
practice (e.g., consulting with the Underground Services Association) to determine the existence
or location of pipelines and other subsurface structures prior to drilling or excavating with
mechanized equipment. Licensee may request information from Licensor concerning the
existence and approximate location of Licensor's underground lines, utilities, and pipelines at or
near the vicinity of the proposed Electric Supply Line by contacting Licensor's
Telecommunications Helpdesk at least thirty (30) business days prior to installation of the Electric
Supply Line. Upon receiving Licensee's timely request, Licensor will provide Licensee with the
Information Licensor has in its possession regarding any existing underground lines, utllltles, and
pipelines at or near the vicinity of the proposed Electric Supply Line and, if applicable, Identify the
location of such lines on the Premises pursuant to Licensor's standard procedures. Licensor does
not warrant the accuracy or completeness of information relating to subsurface conditions of the
Premises and Licensee's operations will be subject at all times to the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of
rail, a soil investigation must be performed by 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 determines in Licensor's reasonable opinion
that granular material is present, Licensor may select a new location for Licensee's use, or may
require Licensee to furnish for Licensor's review and approval, in Licensor's sole discretion, a
remedial plan to deal with the granular material. Once 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 with all terms thereof and hereof.
12.3 Any open hole, boring, or well, constructed on the Premises by Licensee shall be safely covered
and secured at all times when Licensee is not working in the actual vicinity thereof. Following
completion of that portion of the work, all holes or borings constructed on the Premises by
Licensee shall be:
12.3.1 filled in to surrounding ground level with compacted bentonite grout; or
12.3.2 otherwise secured or retired in accordance with any applicable Legal Requirement. No
excavated materials may remain on Licensor's property for more than ten (10) days, but
must be properly disposed of by Licensee in accordance with applicable Legal
Requirements.
Form 421; Rev. 20140801
-4-
Tracking #16-55721
LIABILITY AND INSURANCE
13. Liability and Indemnification.
13.1 For purposes of this License: (a) "lndemnltees" means Licensor and Licensor's affiliated
companies, partners, successors, assigns, legal representatives, officers, directors,
shareholders, employees, and agents; (b) "Llabllltles" means all claims, llabilltles, fines,
penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments, and
expenses (including, without limitation, court costs, reasonable attorneys' fees, costs of
Investigation, removal and remediation, and governmental oversight costs) environmental or
otherwise; and (c) "Licensee Parties" means Licensee or Licensee's officers, agents, invitees,
licensees, employees, or contractors, or any party directly or Indirectly employed by any of them.
or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE
ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS
INDEMNITEES FOR, FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE,
KIND, OR DESCRIPTION DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING
FROM, OR RELATED TO (IN WHOLE OR IN PART):
13.2.1 THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY
OR CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES
ANY AND ALL CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR
IS A GENERATOR, OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE
PURPOSES OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY ACT, AS AMENDED ("CERCLA") OR OTHER ENVIRONMENTAL LAWS
(DEFINED BELOW). LICENSEE WILL INDEMNIFY, DEFEND, AND HOLD THE
INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS. NOTHING IN THIS
LICENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY
INDEMNITEE'S COMMON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO
CONSTRUED. IF ANY AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER
OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES, LICENSEE AGREES TO
INDEMNIFY, HOLD HARMLESS, AND DEFEND INDEMNITEES FOR ANY LIABILITIES
RELATED TO THAT CONSTRUCTION OF THIS LICENSE. IN NO EVENT AS BETWEEN
LICENSOR AND LICENSEE AS TO USE OF THE PREMISES AS CONTEMPLATED BY THIS
LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR THE
ENVIRONMENT AL CONDITION OF THE PREMISES.
13.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN
EMPLOYEE OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW,
LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY,
DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM AND AGAINST ANY
LIABILITIES ARISING OUT OF OR RELATED TO (IN WHOLE OR IN PART) ANY SUCH
ASSERTION INCLUDING, BUT NOT LIMITED TO, ASSERTIONS OF EMPLOYMENT BY AN
INDEMNITEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS THEREUNDER:
THE FEDERAL EMPLOYERS' LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE
Form 421; Rev. 20140801
-5 -
14.
15.
Tracking #16-55n1
RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR
FEDERAL STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT
LIABILITIES ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF ANY INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES,
INCLUDING THOSE ARISING FROM OR ATTRIBUTED TO ANY OTHER ALLEGED OR
ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY INDEMNITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any lndemnltee 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 lndemnitee. Licensee shall pay all costs and expenses incident to such defense, including,
but not limited to, reasonable attorneys' fees, investigators' fees, litigation and appeal expenses,
settlement payments, and amounts paid in satisfaction of judgments.
Personal Property Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO,
FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK
OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR
THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY
INDEMNITEE.
Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the llfe of this
License the following insurance coverage:
15.1 Commercial General Liability Insurance. This insurance shall contain broad form contractual
liability with a combined single llmlt of a minimum of $2,000,000 each occurrence and an
aggregate limit of at least $4,000,000 but in no event less than the amount otherwise carried by
Licensee. Coverage must be purchased on a post 2004 ISO occurrence or equivalent and include
coverage for, but not llmlted to, the following:
• Bodily Injury and Property Damage
• Personal Injury and Advertising Injury
• Fire legal liability
• Products and completed operations
This policy shall also contain the following endorsements or language, which shall be indicated
on the certificate of insurance:
• The definition of insured contract shall be amended to remove any exclusion or other
limitation for any work being done within 50 feet of railroad property.
• Waiver of subrogation in favor of and acceptable to Licensor.
• Additional Insured endorsement in favor of and acceptable to Licensor and Jones Lang
LaSalle Brokerage, Inc.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any Insurance carried by
Licensor.
It is agreed that the workers' compensation and employers' liability related exclusions in the
Commercial General Liability Insurance policy(s) required herein are intended to apply to
employees of the policy holder and shall not apply to Licensor's employees.
No other endorsements limiting coverage may be included on the policy.
15.2 Business Automobile Insurance. This insurance shall contain a combined single limit of at least
$1,000,000, and include coverage for, but not limited to the following:
• Bodily injury and property damage.
• Any and all vehicles owned, used or hired.
Form 421; Rev. 20140801
-6 -
Tracking #16-55721
This policy shall also contain the following endorsements, which shall be indicated on the
certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Licensor.
• Additional insured endorsement in favor of and acceptable to Licensor.
• Separation of insureds.
• The policy shall be primary and non-contributing with respect to any Insurance carried by
Licensor.
15.3 Workers' Compensation and Employers' Llablllty Insurance. This insurance shall include
coverage for, but not limited to:
• Licensee's statutory liability under the workers' compensation laws of the state(s) in which
the services are to be performed. If optional under state laws, the insurance must cover all
employees anyway.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by
disease policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be indicated
on the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Licensor.
15.4 Railroad Protective Liability Insurance. This insurance shall name only 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
construction of the Electric Supply Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY
LINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further
maintenance of the Electric Supply Line is needed at a later date, an additional Railroad
Protective Liability Insurance Polley 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 Pollution Exclusion Amendment.
• Endorsed to Include the Limited Seepage and Pollution Endorsement.
• Endorsed to include Evacuation Expense Coverage Endorsement.
• No other endorsements restricting coverage may be added.
• The original policy must be provided to Licensor prior to performing any work or services
under this License.
• Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and
accidental loss of or damage to all property owned by any named insured and all property In
any named insured's care, custody and control arising out of the acts or omissions of the
contractor named on the Declarations."
In lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from the
Effective Date, Licensee may participate in Licensor's Blanket Railroad Protective Liability
Insurance Polley available to Licensee or its contractor. The limits of coverage are the same as
above. The cost is $460.
CJ I elect to participate in Licensor's Blanket Policy;
CJ I elect not to participate in Licensor's Blanket Polley.
15.5 Other Requirements:
15.5.1 Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits
against Licensor. In addition, Licensee's insurers, through the terms of the policy or a
policy endorsement, must waive their right of subrogation against Licensor for all claims
and suits, and the certificate of insurance must reflect the waiver of subrogation
Form 421; Rev. 20140801
-7-
Tracking #16-55721
endorsement. Licensee further waives its right of recovery, and its insurers must also
waive their right of subrogation against Licensor for loss of Licensee's owned or leased
property, or property under Licensee's care, custody, or control.
15.5.3 Licensee is not allowed to self-insure without the prior written consent of Licensor. If
granted by Licensor, any self-insured retention or other financial responsibility for daims
shall be covered directly by Licensee in lieu of insurance. Any and all Licensor liabilities
that would otherwise, in accordance with the provisions of this License, be covered by
Licensee's insurance will be covered as if Licensee elected not to include a self-insured
retention or other financial responsibility for claims.
15.5.4 Prior to entering the Premises, Licensee shall furnish to Licensor an acceptable
certificate(s) of insurance including an original signature of the authorized representative
evidencing the required coverage, endorsements, and amendments. Licensee shall
notify Licensor in writing at least 30 days prior to any cancellation, non-renewal,
substitution, or material alteration. In the event of a dalm or lawsuit involving Licensor
arising out of this License, Licensee will make avallable any required policy covering such
claim or laYJSuit.
15.5.5 Any insurance policy shall be written by a reputable Insurance company acceptable to
Licensor or with a current Best's Guide Rating of A-and Class VII or better, and
authorized to do business in the state(s) in which the service is to be provided.
15.5.6 If coverage Is purchased on a "claims made" basis, Licensee hereby agrees to maintain
coverage In force for a minimum of three years after expiration or termination of this
License. Annually, Licensee agrees to provide evidence of such coverage as required
hereunder.
15.5. 7 Licensee represents that this License has been thoroughly reviewed by Licensee's
insurance agent(s)/broker(s), who have been instructed by Licensee to procure the
insurance coverage required by this License. Allocated Loss Expense shall be in addition
to all policy limits for coverages referenced above.
15.5.8 Not more frequently than once every five years, Licensor may reasonably modify the
required insurance coverage to reflect then-current risk management practices in the
railroad industry and underwriting practices In the insurance industry.
15.5.9 If any portion of the operation Is to be subcontracted by Licensee, Licensee shall require
that the subcontractor shall provide and maintain insurance coverages as set forth herein,
naming Licensor as an additional insured, and shall require that the subcontractor shall
release, defend and indemnify Licensor to the same extent and under the same terms
and conditions as Licensee is required to release, defend and indemnify Licensor herein.
15.5.10 Failure to provide evidence as required by this Section 15 shall entitle, but not require,
Licensor to terminate this License immediately. Acceptance of a certificate that does not
comply with this Section shall not operate as a waiver of Licensee's obligations
hereunder.
15.5.11 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.
15.5.12 These insurance provisions are intended to be a separate and distinct 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.
Fonn 421; Rev. 20140801
-8-
Tracking #16-55721
15.5.13 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe,
LLC", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates
of each.
COMPLIANCE WITH LAWS, REGULATIONS, AND ENVIRONMENTAL MATTERS
16. Compliance with Laws, Rules, and Regulations.
16.1 Licensee shall observe and comply with any and all laws, statutes, regulations, ordinances,
orders, covenants, restrictions, or decisions of any court of competent Jurisdiction ("Legal
Requirements") relatlng to the construction, maintenance, and use of the Electric Supply Line
and the use of the Premises.
16.2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s) to comply with all
of Licensor's applicable safety rules and regulations. Licensee must ensure that each of its
employees, contractors, agents or invitees entering upon the Premises completes the safety
orientation program at the Website "www.BNSFcontractor.com" (the "Safety Orientation") within
one year prior to entering upon the Premises. Additionally, Licensee must ensure that each and
every employee of Licensee, its contractors, agents and invitees possess a card certifying
completion of the Safety Orientation prior to entering upon the Premises. Licensee must renew
the Safety Orientation annually.
16.3 Licensee shall obtain on or before the date it or its contractor enters the Premises, any and all
additional rights-of way, easements, licenses and other agreements relating to the grant of rights
and interests in and/or access to the Premises (collectively, the "Rights") and such other rights,
licenses, permits, authorizations, and approvals (including without limitation, any necessary local,
state, federal or tribal authorizations and environmental permits) that are necessary in order to
permit Licensee to construct, maintain, own and operate the Electric Supply Line and otherwise
to perform its obligations hereunder In accordance with the terms and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that
does not expire, in accordance with its ordinary terms, 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 ordinary terms
on a date earlier than the last day of the term of this License, Licensee shall, at its cost, exercise
any renewal rights thereunder, or otherwise acquire such extensions, additions and/or
replacements as may be necessary, in order to cause the stated term thereof to be continued
until a date that is not earlier than the last day of the term of this License.
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 Line In accordance with the terms and conditions of this
License, this License thereby shall automatically expire upon such expiration or termination of the
Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements
and regulations in its use of the Premises, including, but not limited to, the Resource Conservation
and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the
Hazardous Materials Transportation Act, and CERCLA (collectively referred to as the
"Environmental Laws"). Licensee shall not maintain a treatment, storage, transfer 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.
17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous
substances", as "hazardous waste" and "hazardous substances" may now or in the future be
defined by any federal, state, or local governmental agency or body on the Premises. Licensee
agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in
compliance with the provisions of this Section 17.2.
Form 421; Rev. 20140801
-9-
Tracking #16-55721
17.3 Licensee shall give Licensor Immediate notice to Licensor's Resource Operations Center at (800)
832-5452 of any known (I) release of hazardous substances on, from, or affecting the Premises,
(ii) violation of Environmental Laws, or (iii) inspection or inquiry by governmental auU,orities
charged with enforcing Environmental Laws with respect to Licensee's use of the Premises.
Licensee shall use the best efforts to promptly respond to any release on, from, or affecting the
Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on
behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or
violation.
17.4 If Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws
arising in any way with respect to the Electric Supply Line which occurred or may occur during
the term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to
take timely measures to investigate, remediate, respond to or otherwise cure such release or
violation affecting the Premises or Licensor's right-of-way.
17.5 Licensee shall promptly report to Licensor In writing any conditions or activities upon the Premises
known to Licensee which create a risk of harm to persons, property or the environment and shall
take whatever action is necessary to prevent Injury to persons, property, or the environment
arising out of such conditions or activities; provided, however, that Licensee'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 information regarding said conditions
or activities.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED
IN THIS LICENSE AND SHAU NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED
WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES
HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE.
LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH
RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN
EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND,
EXPRESS OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR OTHER
RIGHTS GRANTED HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LICENSEE'S
CONSTRUCTION, MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC
SUPPLY LINE WILL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND
ESTATES OF THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE
RIGHTS, EASEMENTS AND LIENS OF ANY THIRD PARTY.
19. Disclaimer of Warranty for Quiet Enjoyment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE
PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
20. Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title to, or
claiming any interest In U,e Premises, or by the abandonment by Licensor of the affected rail corridor,
Licensor shall not be liable (i) to refund Licensee any compensation paid hereunder, except for the pro­
rata part of any recurring charge paid in advance, or (ii) for any damage Licensee sustains In connection
with the eviction.
LIENS AND TAXES
21 . Liens and Charges. Licensee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Licensee on Premises.
Licensor Is hereby authorized to post any notices or take any other action upon or with respect to Premises
Form 421; Rev. 20140801
-10 -
Tracking #16-55721
that is or may be permitted by law to prevent the attachment of any such liens to Premises; provided,
however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or
liability under this Section 21 or any other Section of this License.
22. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes")
levied or assessed by any governmental or quasi-governmental body upon the Electric Supply Line or
any other Improvements constructed or installed on the Premises by or for Licensee (collectively, the
"Improvements") or any Taxes levied or assessed against Licensor or the Premises that are attributable
to the Improvements.
DEFAULT. TERMINATION. AND SURRENDER
23. Default and Termination. In addition to and not in limitation of Licensor's right to terminate for failure to
provide evidence of insurance as required pursuant to the terms of Section 15, the following events are
also deemed to be events of default pursuant to which Licensor has the right to terminate as set forth
below:
23.1 If default shall be made in any of Licensee's covenants, agreements, or obligations contained in
this License and Licensee falls to cure said default within thirty (30) days after written notice is
provided to Licensee by Licensor, or in case of any assignment or transfer of this License in
violation of Section 26 below, Licensor may, at its option, terminate this License by serving five
(5) days' notice In writing upon Licensee. Notwithstanding the foregoing, Licensor shall have the
right to terminate this License immediately if Licensee fails to provide evidence of insurance as
required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or
transporting of hazardous waste or hazardous material, notwithstanding anything contained in
any other provision of this License, Licensor may, at Its option, terminate this License by serving
five (5) days' notice of termination upon Licensee.
23.3 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 any
way affect Licensor's ability to enforce any Section of this License. The remedy set forth in this
Section 23 shall be in addition to, and not in limitation of, any other remedies that Licensor may
have at law or in equity.
23.4 In addition to and not in limitation of Licensor's rights to term lnate this License for failure to provide
evidence of insurance or occurrence of defaults as described above, this License may be
terminated by either party, at any time, by serving thirty (30) days' written notice of termination
upon the other party. Such termination shall not release either party hereto from any liability or
obligation under the License, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination or thereafter in case by the terms
of the License it is provided that anything shall or may be done after termination hereof.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole
cost and expense:
24.1.1 if so directed by Licensor in writing, remove the Improvements, the Electric Supply Line
and all appurtenances thereto, or, at the sole discretion of Licensor, appropriately
decommission the Electric Supply Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premises or Licensor's other property arising from,
growing out of, or connected with Licensee's use of the Premises;
24.1 .3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date.
Fonn 421 : Rev. 20140801
-11 -
Tracking #16-55721
24.2 Upon any expiration or termination of this License, if Licensee fails to surrender the Premises to
Licensor or if Licensee fails to complete its obligations under Section 24.1 above (the
"Restoration Obligations"), Licensee shall have a limited license to enter upon the Premises
solely to the extent necessary for Licensee to complete the Restoration Obligations, and all
liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are
surrendered and the Restoration Obligations are completed. Neither termination nor expiration
shall release Licensee from any liability or obligation under this License, whether of indemnity or
otherwise, resulting from any acts, om issions or events happening prior to the date of termination,
or, if later, the date when Licensee surrenders the Premises and all of the Restoration Obligations
are completed.
24.3 If Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of
such termination of its tenancy, then Licensor may, at its election, either: (i) remove the Electric
Supply Line and the other Improvements or otherwise restore the Premises, and in such event
Licensee shall, within lhirty (30) days after receipt of bill therefor, reimburse Licensor for cost
incurred, (ii) upon written notice to Licensee, take and hold the Electric Supply Line and the other
Improvements and personal property as its sole property, without payment or obligation to
Licensee therefor, or (iii) specifically enforce Licensee's obligation to restore and/or pursue any
remedy at law or in equity against Licensee for failure to so restore. Further, if Licensor has
consented to the Electric Supply Line and the other Improvements remaining 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 Improvements to
Licensor.
MISCELLANEOUS
25.
26.
Successors and Assigns. All provisions contained in this License shall 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 this License.
Assignment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or
interest herein (either voluntarily or by operation of law, merger, or otherwise) without the prior
written consent of Licensor, which consent may not be unreasonably withheld or delayed by
Licensor. Any attempted assignment by Licensee in violation of this Section 26 shall be a breach
of this License and, in addition, shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of
the equity interests of Licensee following which the equity interest holders of Licensee
immediately prior to such sale own, directly or indirectly, less than 50% of the combined voting
power of the outstanding voting equity interests of Licensee, (b) any sale of all or substantially all
of the assets of (I) Licensee and (ii) to the extent such entities exist, Licensee's parent and
subsidiaries, taken as a whole, or (c) any reorganization, recapitalization, merger or consolidation
Involving Licensee. Notwithstanding the foregoing, any reorganization, recapitalization, merger
or consolidation following which the equity interest holders of Licensee Immediately prior to such
reorganization, recapitalization, merger or consolidation own, directly or indirectly, at least 50%
of the combined voting power of the outstanding voting equity interests of Licensee or any
successor thereto or the entity resulting from such reorganization, recapitalization, merger or
consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE
LAND WITHOUT THE EXPRESS WRIITEN CONSENT OF LICENSOR, SUCH CONSENT TO
BE IN LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained In this License to the
contrary, if Licensee sells, assigns, transfers, or hypothecates this License or any Interest herein
in contravention of the provisions of this License (a "Purported Assignment") to another party
(a "Purported Transferee"), the Purported Transferee's enjoyment of the rights and privileges
granted under this License shall be deemed to be the Purported Transferee's agreement to be
bound by all of the terms and provisions of this License, including but not limited to the obligation
Form 421 ; Rev. 20140801
-12 -
Tracking #16-55721
to comply with the provisions of Section 15 above concerning insurance requirements. In
addition to and not in limitation of the foregoing, Licensee, for itself, its successors and assigns,
shall indemnify, defend and hold harmless Licensor for all Liabilities of any nature, kind or
description of any person or entity directly or indirectly arising out of, resulting from or related to
(in whole or in part) a Purported Assignment.
26.4 The provisions of this Section 26 shall survive the expiration or earlier termination of this License.
27. Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to
the other shall be in writing and the same shall be given and shall be deemed to have been served and
given if (i) placed in the United States mail, certified, return receipt requested, or (Ii) deposited into the
custody of a nationally recognized overnight delivery service, addressed to the party to be notified at the
address for such party specified below, or to such other address as the party to be notified may designate
by giving the other party no less than thirty (30) days' advance written notice of such change in address.
If to Licensor:
with a copy to:
If to Licensee:
Jones Lang LaSalle Brokerage, Inc.
4300 Amon carter Blvd., Suite 100
Fort Worth, TX 76155
Attn: Permits/Licenses
BNSF Railway Company
2301 Lou Menk Dr. -G0B-3W
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
PacifiCorp
825 NE Multnomah Street
Suite 1700
Portland, OR 97232
28. Survival. Neither termination nor expiration will release either party from any liability or obligation under
this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening
prior to the date of termination or expiration, or, if later, the date when the Electric Supply Line and the
other Improvements are removed and the Premises are restored to its condition as of the Effective Date.
29. Recordatlon. It is understood and agreed that this License shall not be placed or allowed to be placed on
public record.
30. Applicable Law. All questions concerning the interpretation or application of provisions of this License
shall be decided according to the substantive laws of the State of Texas without regard to conflicts of law
provisions.
31 . Severability. To the maximum extent possible, each provision of this License shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this License shall be
prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the
extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any
other provision of this License.
32. Integration. This License is the full and complete agreement between Licensor and Licensee with respect
to all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements
between the parties hereto relating to Licensee's use of the Premises as described herein. However,
nothing herein Is Intended to terminate any surviving obligation of Licensee or Licensee's obligation to
defend and hold Licensor harmless in any prior written agreement between the parties.
33. Joint and Several Liability. If Licensee consists of two or more parties, all the covenants and agreements
of Licensee herein contained shall be the joint and several covenants and agreements of such parties.
34. Waiver. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair
the right of Licensor to enforce that provision for any subsequent breach thereof.
Form 421; Rev. 20140801
-13 -
35.
Tracking #1~5721
Interpretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any
party based upon the source of the draftsmanship; both parties hereby agree that this License
shall not be subject to the prlnclple that a contract would be construed against the party which
drafted the same. Article titles, headings to sections and paragraphs and the table of contents (if
any) are inserted for convenience of reference only and are not intended to be a part or to affect
the meaning or interpretation hereof. The exhibit or exhibits referred to herein shall be construed
with and as an integral part of this License to the same extent as if they were set forth verbatim
herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without
limitation" whether or not they are in fact followed by such words or words of like import; "writing",
"written" and comparable terms refer to printing, typing, lithography and other means of
reproducing words In a visible form; references to any person are also to that person's successors
and permitted assigns; "hereof", "herein", "hereunder" and comparable terms refer to the entirety
hereof and not to any particular article, section, or other subdivision hereof or attachment hereto;
references to any gender include references to the masculine or feminine as the context requires;
references to the plural include the singular and vice versa; and references to this License or
other documents are as amended, modified or supplemented from time to time.
36. Counterparts. This License may be executed in multiple counterparts, each of which shall, for all
purposes, be deemed an original but which together shall constitute one and the same Instrument, and
the signature pages from any counterpart may be appended to any other counterpart to assemble fully
executed documents, and counterparts of this License may also be exchanged via email or electronic
facsimile machines and any email or electronic facsimile of any party's signature shall be deemed to be
an original signature for all purposes.
37. Licensor's Representative. Jones Lang LaSalle Brokerage, Inc. Is acting as representative for BNSF
Railway Company.
END OF PAGE -SIGNATURE PAGE FOLLOWS
Fonn 421; Rev. 20140801
-14-
Tracking #16-55721
This License has been duly executed by the parties hereto as of the date below each party's signature;
to be effective, however, as of the Effective Date.
LICENSOR:
BNSF RAILWAY COMPANY, a Delaware corporation
LICENSEE:
By: Jones Lang LaSalle Brokerage, Inc.,
4300 Amon Carter Blvd, Suite 100
Fort Worth, TX 76155
By:
Shane Krueger
Title: Vice President -Permits & Special Projects
Date:
PACIFICORP, an Oregon corporation
By:
Title:
Date:
825 NE Multnomah Street
Suite 1700
Portland, OR 97232
-15 -
Form 421; Rev. 20140801
COORDINATE SYSTEM: _QB..§
Laverne Ave
TOTAL LENGTH • 259'
TYPE
ELECTRIC -2/0 COPPER
EXHIBIT "A"
ATTACHED TO CONTRACT BE1VI/EEN
BNSF RAILWAY COMPANY
AND
PACIFICORP
TRACKING NO. 16-55721
N
i
SECTION:i.
TOVVNSHIP: ~
RANGE: E
MERIDAN: W,LLM
EXISTING: ONIIO POLE
RELOCATED. ONN2 POLE
NUMBER
"'
Sou~ Esrl, QlgltalGlobe, GeoEye, Earthstar Geographies,
CNES/Ai1l1o1s l)S, USDA, USGS, AEX, Getmapplng, Ai,rogrid, IGN, IGP..
swtsstopo, and the GIS User Community
DESCRIPTION OF WIRES OVER TRACK
\I\IIRES LOCATED AS SHOWN BOLD
VOLTAGE
12 KV
DISTANCE ABOVE
TOP OF RAIL
41'
CLEARS RAILWAY
COMPANY'S WIRES
NIA
AT KLAMATH FALLS
COUNTY OF KLAMATH STATEOF OR TR
REVISION 1 DRAWING NO. 67562A
u..: w 0:
II.. !
COORDINATE SYSTEM:~
SCALE: 1 IN.= 1QQ_ FT.
NORTHWEST DIV.
GPi. Y SUBDIV.
L.S.~ MP:~
DATE 11/1~/2016
LavemeAve
TOTAL LENGTH • 259'
TYPE
ELECTRIC-1/0 COPPER
EXHIBIT "A"
ATTACHED TO CONTRACT BElWEEN
BNSF RAILWAY COMPANY
AND
PACIFICORP
TRACKING NO. 16-55721
N
i
l!XIITIN~'.~ POLE.
96'
RE&:OC~TED OMl82 POLE
NUMBER
3
Source, Eari, QlgltalGlobe, GeoEye, Earthstar Geographies,
CNESIAi'bus bS, USDA, USGS, AEX, Getmapplng, Aerogrld, IGN, IGP,
swlsstopo. and the GIS User Community
DESCRIPTION OF IMRES OVER TRACK
IMRES LOCATED AS SHOWN BOLD
VOLTAGE
69KV
DISTANCE ABOVE
TOP OF RAIL
53'
CLEARS RAILWAY
COMPANY'S WIRES
NIA
AT KLAMATH FALLS
COUNTY OF KLAMATH STATEOF OR TR
REVISION 1 DRAWING NO. 67562B
u.: w a::
Q. ~
COORDINATE SYSTEM: ..QB..S.
SCALE: 1 IN.=~ FT.
NORTHWEST DIV.
GATEWAY SUBDIV.
L.S.~MP:~
DATE 11/18/2016
LavemeAve
TOTAL LENGTH • 259'
TYPE
ELECTRIC -ACSR
EXHIBIT "A"
ATTACHED TO CONlRACT BE1WEEN
BNSF RAILWAY COMPANY
AND
PACIFICORP
TRACKING NO. 16-55721
N
1
SECTION:
TOWNSHIP:~
RANGE:
MERIDAN: ,:..u.t:i:w-a
EXIS11NG.09ll80 POLE
.98'
RELO.CATED 094A2 POLE
NUMBER
3
Source: Esrt, OlgttalGlobe, GeoEye, Earthstu Geographies,
CNES/Alrbua DS. USDA, USGS, AEX, Getmapping, Aer:ogrld, IGN, IG i
$Wlsstop1>, ancithe GIS User Community
DESCRIPTION OF 'MRES OVER TRACK
WRES LOCATED AS SHOWN BOLD
VOLTAGE
69KV
DISTANCE ABOVE
TOP OF RAIL
53'
CLEARS RAILWAY
COMPANY'S WIRES
NIA
AT KLAMATH FALLS
COUNTY OF KLAMATH STATEOF OR TR
REVISION 1 DRAWING NO. 67562C
u.: w a::
D. i
ATTACHMENT B
License for Electric Supply Line Across or Along
Railway Property, Tracking #16-55722
]ONES UNG
LASALLE.
November 28, 2016
PacifiCorp
Attention: Mr. Scott Mease
825 NE Multnomah Street
Suite 1700
Portland, OR 97232
Dear Mr. Mease:
Jones Lang LaSalle Americas, Inc.
4300 Amon Carter Blvd, Suite 100
Fort Worth, Texas 76155
tel [phone]
16-55722
Attached please find a copy of the requested contract for execution by an official authorized to execute contract
agreements on behalf of your company. Please print two (2) copies execute and ,etum both copies with original
signature for completion on part of BNSF Railway Company ("BNSF") to this office, along with the following
requirements:
• A check In the amount of $6,625.00 payable to BNSF Railway Company which covers $5,850.00 for
the contract fee and $775.00 for the processing fee.
Please note the agreements cannot be executed by BNSF without an approved insurance certificate. If there are any
Issues with your insurance, you will be contacted by a member of the Risk Management team of BNSF Railway.
1. A Certificate of Insurance as required in the agreement.
2. A separate policy for Railroad Protective Liability Insurance as required in the agreement (ORIGINAL
POLICY MUST BE PROVIDED). BNSF Railway Company will be the only insured party; OR;
In lieu of providing a separate policy for Railroad Protective Liability Insurance, you may participate in the
BNSF's Railroad Protective Policy by checking the appropriate box in the contract and including an additional
$460.00 with your check.
PLEASE ADVISE IF THIS PROJECT IS ARRA FUNDED.
Acceptance and deposit of any check by BNSF does not constitute an agreement between BNSF and Licensee for the
requested license. BNSF shall not be Qbligated to hold the check In a separate fund, but may commingle the funds
with other funds of BNSF, and in no event shall BNSF be responsible for interest on said funds.
The enclosed permit is not a binding agreement and shall become binding only when, and if, it is executed by you and
fully approved and executed by BNSF Railway Company. Upon completion on behalf of BNSF, one fully executed
counterpart will be returned for your records.
The specifications/plans you provided may differ from BNSF's minimum specification
requirements. Therefore, prior to your Installation, please review the Exhibit A to determine the specifications
necessary for your Installation.
Please be informed that if contracts, fees, and insurance are not returned within sixty (60) days, the processing fee will
increase to $1,550.00.
Sincerely,
Katrina Salazar
Associate Manager Permits
Attachment
Tracking #16-55722
LICENSE FOR COMMUNICATION LINE, TELEVISION CABLE,
AND/OR FIBER OPTIC LINE ACROSS OR ALONG RAILWAY PROPERTY
THIS LICENSE FOR COMMUNICATION LINE, TELEVISION CABLE AND/OR FIBER OPTIC LINE
("License") is made to be effective , 2016, (the "Effective Data") by and between BNSF RAILWAY
COMPANY, a Delaware corporation ("Licensor") and PACIFICORP, an Oregon corporation ("Licensee").
In consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1. Grant of License. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests,
and estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, to construct and maintain in strict
accordance with the drawings and specifications approved by Licensor as part of Licensee's application
process (the "Drawings and Specifications") a communication line, television cable, and/or a fiber optic
line containing a maximum of one (1) conduit, together with all conductors and their supporting or containing
structures (collectively, the "Communication Line"), across or along Licensor's rail corridor at or near the
station of Klamath Falls, County of Klamath, State of Oregon, Line Segment 0055, Mile Post 0.36 as shown
on the attached Drawing No. 67563A & 675638, dated October 10, 2016, attached hereto as Exhibit "A"
and Incorporated herein by reference (the "Premises"). Licensee warrants that It has exercised due care In
establishing the Drawings and Specifications and has conducted testing and carefully assessed the design
process to conclude that the risks associated with using and operating the Communication Line as intended
by Licensee will not pose any unreasonable risks to Licensor or to the Premises.
2. Term. This License shall commence on the Effective Date and shall continue for a period of twenty (20)
years, subject to prior termination as hereinafter described.
3. Existing Improvements. 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, repair,
maintenance or replacement of such Improvements.
4. Use of the Premises. Licensee shall use the Premises solely for construction, maintenance, and use of the
Communication Line in accordance with the Drawings and Specifications. 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 affix anything to the Premises or any buildings or other structures adjacent to the Premises
without Licensor's prior written consent.
COMPENSATION
6. License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Five Thousand, Eight
Hundred Fifty and No/100 Dollars ($5,850) as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "cost" or "costs" and "expense" or "expenses" includes, but Is not
limited to, actual labor and material costs including all assignable additives, and material and supply
costs at current value where used.
7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs and
expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence,
construction and maintenance of the Communication Line, including but not limited to the furnishing
of Licensor's flaggers and any vehicle rental costs incurred. Licensee shall bear the cost of ftagger
services and other safety measures provided by Licensor, when deemed necessary by Licensor's
representative. Flagging costs shall include, but not be limited to, the following: pay for at least an
eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays
(as applicable); vacation allowance; paid holidays (as applicable); railway and unemployment
Form 421; Rev. 20140801
-1 -
8.
Tracking #16-55722
insurance; public liability and property damage Insurance; health and welfare benefits; transportation;
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 effect at the time of performance by the flaggers will be used to calculate the
flagging costs pursuant to this Section 7.
Payment Terms. All invoices are due thirty (30) days after the date of invoice. If Licensee fails to pay any
monies due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such
unpaid sum from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published
In The Wall Street Journal in the preceding December plus two and one-half percent (2-1/2%), or (II) the
maximum rate permitted by law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Rights of Use. Licensor accepts and reserves the right, to be exercised by Licensor and any other
parties who may obtain written permission or authority from Licensor:
9.1 to maintain, use, operate, repair, replace, modify and relocate any utlllty, power or communication
pipe/lines/cables and appurtenances (other than the Communication Line) and other facilities or
structures of like character upon, over, under or across the Premises existing as of the Effective
Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional
facilities, structures and related appurtenances upon, over, under or across the Premises; or
9.3 to use the Premises In any manner as Licensor in its sole discretion deems appropriate, provided
Licensor uses all commercially reasonable efforts to avoid material interference with the use of the
Premises by Licensee for the purpose specified in Section 4 above.
10. Right to Require Relocation. If at any time during the term of this License, Licensor desires the use of its rail
corridor In such a manner as would, in Licensor's reasonable opinion, be interfered with by the
Communication Line, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice
from Licensor to such effect, make such changes in. the Communication Line as In the sole discretion of
Licensor may be necessary to avoid interference with the proposed use of Licensor's rail corridor, Including,
without limitation, the relocation of the Communication Line, or the construction of a new line to replace the
Communication Line. Notwithstanding the foregoing, Licensee agrees to make all emergency changes and
minor adjustments, as determined by Licensor In Its sole discretion, to the Communication Line promptly
upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Communication Line.
11.1 Licensee shall notify Licensor's Roadmaster, Glenn Monti at 1800 Laverne Ave, Klamath Falls, OR
97601, telephone [phone], or email [e-mail], at least ten (10) business days
prior to installation of the Communication Line and prior to entering the Premises for any subsequent
maintenance thereon. In the event of emergency, Licensee shall notify Licensor of Licensee's entry
onto the Premises at the telephone number above as soon as practicable and shall promptly
thereafter follow up with written notice of such entry.
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times
while on the Premises.
11.3 While on the Premises, Licensee shall use only publlc roadways to cross from one side of Licensor's
tracks to the other.
11.4 Any contractors or subcontractors performing work on the Communication Line or entering the
Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of
this License.
Form 421; Rev. 20140801
-2-
Tracking #16-55722
11.5 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
equipment, tools or other materlals, within twenty-five (25) feet of the centertine of any railroad track
on the Premises unless Licensee has obtained prior written approval from Licensor. Licensee shall,
at its sole cost and expense, perform all activities on and about the Premises in such a manner as
not at any time to endanger or interfere with (i) the existence or use of present or future tracks,
roadbeds or property of Licensor, (ii) the safe operation and activities of Licensor or existing third
parties, or (iii) the rights or Interests of third parties. If ordered to cease using the Premises at any
time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or
obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, It being
solely Licensee's responsibility to ensure that Licensee's use of the Premises 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.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Communication Line in such
a manner and of such material that the Communication Line will not at any time endanger or interfere
with {I) the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe
operation and activities of Licensor or existing third parties, or (ill) the rights or interests of third
parties. The construction of the Communication Line shall be completed within one (1) year of the
Effective Date, and any subsequent maintenance shall be completed within one ( 1) year of initiation.
Within fifteen (15) days after completion of the construction of the Communication Line or the
performance of any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and
expense, restore the Premises to substantially their state as of the Effective Date, unless otherwise
approved in advance by Licensor in writing. On or before expiration or termination of this License
for any reason, Licensee shall, at its sole cost and expense, surrender the Premises to Licensor
pursuant to the terms and conditions set forth in Section 24 hereof.
11.7 Licensor may direct one or more of its field engineers to observe or inspect the construction and/or
maintenance of the Communication Line at any time for compliance with the Drawings and
Specifications and Legal Requirements (defined below). If ordered at any time to halt construction
or maintenance of the Communication Line by Licensor's personnel due to non-compliance with 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 work on, the Communication Line, It being solely Licensee's
responsibility to ensure that the Communication Line Is constructed and maintained in strict
accordance with the Drawings and Specifications and In a safe and workmanlike manner in
compliance with all terms hereof. Neither the exercise of, 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 11, Licensor may, at its option and at Licensee's sole expense, arrange for the
performance of such work as it deems necessary for the safety of its operations and activities.
Licensee shall promptly reimburse Licensor for all costs and expenses of such work, pursuant to the
terms of Section 8. Licensor's faHure to perform any obligations of Licensee shall not alter the liability
allocation hereunder.
11.8 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden
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) days
after having been requested by Licensor to do so, Licensor shall have the right itself to perform the
work and Licensee hereby agrees to reimburse Licensor for the expense so incurred.
11.9 Licensee shall, at its sole cost and expense, construct and at all times maintain the Communication
Line in accordance with the National Electric Code. The use of a rail mounted cable plow to install
the Communication Line is strictly prohibited unless advance written approval is granted by Licensor,
which approval Licensor may grant or withhold in its sole and absolute discretion. Unless otherwise
specified, all underground line shall be installed at least forty-eight (48) inches below grade level.
Fonn 421; Rev. 20140801
- 3 -
Tracking #16-55722
12. Boring and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any portion of the
Premises, Licensee shall explore the proposed location for such work with hand tools to a depth of
at least three (3) feet below the surface of the ground to determine whether pipelines or other
structures exist below the surface, provided, however, that in lieu of the foregoing, Licensee shall
have the right to use suitable detection equipment or other generally accepted industry practice (U,
consulting with the Underground Services Association) to determine the existence or location of
pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment.
Licensee may request information from Licensor concerning the existence and approximate location
of Licensor's underground lines, utilities, and pipelines at or near the vicinity of the proposed
Communication Line by contacting Licensor's Telecommunications Helpdesk at least thirty (30)
business days prior to installation of the Communication Line. Upon receiving Licensee's timely
request, Licensor will provide Licensee with the information Licensor has in its possession regarding
any existing underground lines, utilities, and pipelines at or near the vicinity of the proposed
Communication Line and, if applicable, identify the location of such lines on the Premises pursuant
to Licensor's standard procedures. Licensor does not warrant the accuracy or completeness of
Information relating to subsurface conditions of the Premises and Licensee's operations will be
subject at all times to the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a
soil investigation must be performed by 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 determines In Licensor's reasonable opinion that granular
material is present, Licensor may select a new location for Licensee's use, or may require Licensee
to furnish for Licensor's review and approval, in Licensor's sole discretion, a remedial plan to deal
with the granular material. Once 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 with all terms
thereof and hereof.
12.3 Any open hole, boring, or well, constructed on the Premises by Licensee shall be safely covered and
secured at all times when Licensee is not working in the actual vicinity thereof. Following completion
of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be:
12.3.1 filled in to surrounding ground level with compacted bentonite grout; or
12.3.2 otherwise secured or retired in accordance with any applicable Legal Requirement. No
excavated materials may remain on Licensor's property for more than ten (10) days, but
must be properly disposed of by Licensee in accordance with applicable Legal
Requirements.
LIABILITY AND INSURANCE
13. Liability and Indemnification.
13.1 For purposes of this License: (a) "lndemnltees" means Licensor and Licensor's affiliated companies,
partners, successors, assigns, legal representatives, officers, directors, shareholders, employees,
and agents; (b) "Liabilities" means all claims, llabllltles, fines, penalties, costs, damages, losses,
liens, causes of action, suits, demands, Judgments, and expenses (including, without limitation, court
costs, reasonable attorneys' fees, costs of investigation, removal and remediation, and governmental
oversight costs) environmental or otherwise; and (c) "Licensee Parties" means Licensee or
Licensee's officers, agents, Invitees, licensees, employees, or contractors, or any party directly or
indirectly employed by any of them, or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES
FOR, FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR
DESCRIPTION DIRECTLY OR INDIRECTLY ARISING OUT. OF, RESULTING FROM, OR
RELATED TO (IN WHOLE OR IN PART):
Fonn 421; Rev. 20140801
-4 -
Tracking #16-55722
13.2.1 THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES
ANY AND ALL CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR IS
A GENERATOR, OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE
PURPOSES OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION,
AND LIABILITY ACT, AS AMENDED ("CERCLA") OR OTHER ENVIRONMENTAL LAWS
(DEFINED BELOW). LICENSEE WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM ANY AND ALL SUCH CLAIMS. NOTHING IN THIS LICENSE IS MEANT BY
EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER
DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY AGENCY OR
COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S COMMON
CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND
INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE
PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO
LICENSEE FOR THE ENVIRONMENT AL CONDITION OF THE PREMISES.
13.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE
OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL,
AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE
INDEMNITEES HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR
RELATED TO (IN WHOLE OR IN PART) ANY SUCH ASSERTION INCLUDING, BUT NOT
LIMITED TO, ASSERTIONS OF EMPLOYMENT BY AN INDEMNITEE RELATED TO THE
FOLLOWING OR ANY PROCEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS'
LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE
OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND
RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT
LIABILITIES ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF ANY INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES,
INCLUDING THOSE ARISING FROM OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL
NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY INDEMNITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any lndemnltee 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 lndemnitee. Licensee shall pay all costs and expenses incident to such defense, including, but
not limited to, reasonable attorneys' fees, investigators' fees, litigation and appeal expenses,
settlement payments, and amounts paid in satisfaction of judgments.
14. Personal Property Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO,
FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK
OF LICENSEE ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR
THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY
INDEMNITEE.
Fonn 421 ; Rev. 20140801
-5-
Tracking #16-55722
15. Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the life of this License
the following Insurance coverage:
15.1 Commercial General Liability Insurance. 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 but in no event less than the amount otherwise carried by Licensee. Coverage
must be purchased on a post 2004 ISO occurrence or equivalent and include coverage for, but not
llmlted to, the following:
• Bodily Injury and Property Damage
• Personal Injury and Advertising Injury
• Fire legal liability
• Products and completed operations
This policy shall also contain the following endorsements or language, which shall be indicated on
the certificate of insurance:
• The definition of insured contract shall be amended to remove any exclusion or other limitation
for any work being done within 50 feet of railroad property.
• Waiver of subrogation In favor of and acceptable to Licensor.
• Additional Insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle
Brokerage, Inc.
• Separation of Insureds.
• The policy shall be primary and non-contributing with respect to any insurance carried by
Licensor.
It Is agreed that the workers' compensation and employers' liability related exclusions in the
Commercial General Liability Insurance policy(s) required herein are intended to apply to employees
of the policy holder and shall not apply to Licensor's employees.
No other endorsements limiting coverage may be included on the policy.
15.2 Business Automobile Insurance. This insurance shall contain a combined single limit of at least
$1,000,000, and include coverage for, but not limited to the following:
• Bodily injury and property damage.
• Any and all vehicles owned, used or hired.
This policy shall also contain the following endorsements, which shall be indicated on the certificate
of insurance:
• Waiver 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 primary and non-contributing with respect to any Insurance carried by
Licensor.
15.3 Workers' Compensation and Employers' Llablllty Insurance. This insurance shall include coverage
for, but not limited to:
• Licensee's statutory liability under the workers' compensation laws of the state(s) in which the
services are to be performed. If optional under state laws, the insurance must cover all
employees anyway.
• Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease
policy limit, $500,000 by disease each employee.
This policy shall also contain the following endorsements or language, which shall be indicated on
the certificate of insurance:
• Waiver of subrogation in favor of and acceptable to Licensor.
Form 421; Rev. 20140801
-6-
Tracking #16-55722
15.4 Railroad Protective Liability Insurance. This insurance shall name only 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 construction of
the Communication Line. THE CONSTRUCTION OF THE COMMUNICATION LINE SHALL BE
COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the
Communication 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 12 03 and
include the following:
• Endorsed to include the Pollution Exclusion Amendment.
• Endorsed to include the Limited Seepage and Pollution Endorsement.
• Endorsed to include Evacuation Expense Coverage Endorsement.
• No other endorsements restricting coverage may be added.
• The original policy must be provided to Licensor prior to performing any work or services under
this License.
• Definition of "Physical Damage to Property" shall be endorsed to read: "means direct and
accidental loss of or damage to all property owned by any named insured and all property in any
named insured's care, custody and control arising out of the acts or omissions of the contractor
named on the Declarations."
In lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from the Effective
Date, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy
available to Licensee or its contractor. The llmlts of coverage are the same as above. The cost is
$460.
a I elect to participate in Licensor's Blanket Policy;
a I elect not to participate in Licensor's Blanket Policy.
15.5 Other Requirements:
15.5.1 Where allowable by law, all policies (applying to coverage listed above) shall contain no
exclusion for punitive damages.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. In addition, Licensee's insurers, through the terms of the policy or a policy
endorsement, must waive their right of subrogation against Licensor for all claims and suits,
and the certificate of Insurance must reflect the waiver of subrogation endorsement.
Licensee further waives Its right of recovery, and its insurers must also waive their right of
subrogation against Licensor for loss of Licensee's owned or leased property, or property
under Licensee's care, custody, or control.
15.5.3 Licensee is not allowed to self-insure without the prior written consent of Licensor. If granted
by Licensor, any self-insured retention or other financial responsibility for claims shall be
covered directly by Licensee in lieu of insurance. Any and all Licensor llabillties that would
otherwise, in accordance with the provisions of this License, be covered by Licensee's
insurance will be covered as if Licensee elected not to Include a self-Insured retention or
other financial responsibility for claims.
15.5.4 Prior to entering the Premises, Licensee shall furnish to Licensor an acceptable certificate(s)
of insurance including an original signature of the authorized representative evidencing the
required coverage, endorsements, and amendments. Licensee shall notify Licensor in
writing at least 30 days prior to any cancellation, non-renewal, substitution, or material
alteration. In the event of a claim or lawsuit involving Licensor arising out of this License,
Licensee will make available any required policy covering such claim or lawsuit.
15.5.5 Any insurance policy shall be written by a reputable Insurance company acceptable to
Licensor or with a current Best's Guide Rating of A-and Class VII or better, and authorized
to do business in the state(s} in which the service is to be provided.
Form 421; Rev. 20140801
-7-
Tracking #16-55722
15.5.6 If coverage is purchased on a "claims made" basis, Licensee hereby agrees to maintain
coverage in force for a minimum of three years after expiration or termination of this License.
Annually, Licensee agrees to provide evidence of such coverage as required hereunder.
15.5. 7 Licensee represents that this License has been thoroughly reviewed by Licensee's Insurance
agent(s)/broker(s), who have been instructed by Licensee to procure the insurance coverage
required by this License. Allocated Loss Expense shall be in addition to au policy limits for
coverages referenced above.
15.5.8 Not more frequently than once every five years, Licensor may reasonably modify the
required insurance coverage to reflect then-current risk management practices In the railroad
industry and underwriting practices in the insurance industry.
15.5.9 If any portion of the operation is to be subcontracted by Licensee, Licensee shall require that
the subcontractor shall provide and maintain insurance coverages as set forth herein,
naming Licensor as an additional insured, and shall require that the subcontractor shall
release, defend and indemnify Licensor to the same extent and under the same terms and
conditions as Licensee is required to release, defend and Indemnify Licensor herein.
15.5.1 O Failure to provide evidence as required by this Section 15 shall entitle, but not require,
Licensor to terminate this License immediately. Acceptance of a certificate that does not
comply with this Section shall not operate as a waiver of Licensee's obligations hereunder.
15.5.11 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.
15.5.12 These Insurance provisions are intended to be a separate and distinct 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 purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC",
"BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WITH LAWS, REGULATIONS AND ENVIRONMENTAL MATTERS
16. Compliance with Laws. Rules. and Regulations.
16.1 Licensee shall observe· and comply with any and all laws, statutes, regulations, ordinances, orders,
covenants, restrictions, or decisions of any court of competent jurisdiction ("Legal Requirements")
relating to the construction, maintenance and use of the Communication Line and the use of the
Premises.
16.2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s) to comply with all of
Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees,
contractors, agents or invitees entering upon the Premises completes the safety orientation program
at the Website "www.BNSFcontractor.com" (the "Safety Orientation") within one year prior to
entering upon the Premises. Additionally, Licensee must ensure that each and every employee of
Licensee, its contractors, agents and invitees possess a card certifying completion of the Safety
Orientation prior to entering upon the Premises. Licensee must renew the Safety Orientation
annually.
16.3 Licensee shall obtain on or before the date it or Its contractor enters the Premises, any and all
additional rights-of way, easements, licenses and other agreements relating to the grant of rights and
interests in and/or access to the Premises (collectively, the "Rights") and such other rights, licenses.
permits, authorizations, and approvals (including without limitation, any necessary local, state,
federal or tribal authorizations and environmental permits) that are necessary in order to permit
Form 421; Rev. 20140801
-8-
Tracking #16-55722
Licensee to construct, maintain, own and operate the Communication Line and otherwise to perform
its obligations hereunder in accordance with the terms and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does
not expire, in accordance with its ordinary terms, 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 ordinary terms on a date earlier
than the last day of the term of this License, Licensee shall, at its cost, exercise any renewal rights
thereunder, or otherwise acquire such extensions, additions and/or replacements as may be
necessary, in order to cause the stated term thereof to be continued until a date that is not earlier
than the last day of the term of this License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate
or use the Communication Line in accordance with the terms and conditions of this License, this
License thereby shall automatically expire upon such expiration or termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the Resource Conservation and
Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous
Materials Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws").
Licensee shall not maintain a treatment, storage, transfer 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.
17 .2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances",
as "hazardous waste" and "hazardous substances" may now or in the future be defined by any
federal, state, or local governmental agency or body on the Premises. Licensee agrees periodically
to furnish Licensor with proof, satisfactory to Licensor that Licensee is in compliance with the
provisions of this Section 17.2.
17 .3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800)
832-5452 of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii)
violation of Environmental Laws, or (iii) inspection or inquiry by governmental authorities charged
with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall
use the best efforts to promptly respond to any release on, from, or affecting the Premises. Licensee
also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to
investigate, remediate, respond to or otherwise cure such release or violation.
17.4 If Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws
arising in any way with respect to the Communication Line which occurred or may occur during the
term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take
timely measures to investigate, remediate, respond to or otherwise cure such release or violation
affecting the Premises or Licensor's right-of-way.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises
known to Licensee which create a risk of harm to persons, property or the environment and shall
take whatever action is necessary to prevent injury to persons, property, or the environment arising
out of such conditions or activities; provided, however, that Licensee'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 information regarding said conditions or activities.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN
THIS LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES,
NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY
LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY
Fonn 421; Rev. 20140801
-9-
Tracking #16-55722
WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND,
EXPRESS OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR OTHER RIGHTS
GRANTED HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LICENSEE'S
CONSTRUCTION, MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE
COMMUNICATION LINE WILL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND
ESTATES OF THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE
RIGHTS, EASEMENTS AND LIENS OF ANY THIRD PARTY.
19. Disclaimer of Warranty for Quiet Enioyment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE
PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE
THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE.
20. Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title to, or
claiming any interest In the Premises, or by the abandonment by licensor of the affected rail corridor,
Licensor shall not be llable (I) to refund licensee any compensation paid hereunder, except for the pro-rata
part of any recurring charge paid in advance, or (ii) for any damage Licensee sustains in connection with the
eviction.
LIENS AND TAXES
21. liens and Charges. Licensee shall promptly pay and discharge any and all liens arising out of any
construction, alterations or repairs done, suffered or permitted to be done by Licensee on Premises. Licensor
is hereby authorized to post any notices or take any other action upon or with respect to Premises that is or
may be permitted by law to prevent the attachment of any such 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 21 or any other Section of this License.
22. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, 'Taxes•) levied
or assessed by any govemmental or quasi-governmental body upon the Communication Line or any other
improvements constructed or installed on the Premises by orfor Licensee (collectively, the "Improvements")
or any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements.
DEFAULT, TERMINATION, AND SURRENDER
23. Default and Termination. In addition to and not in limitation of Licensor's right to terminate for failure to
provide evidence of insurance as required pursuant to the terms of Section 15, the following events are also
deemed to be events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 If default shall be made in any of Licensee's covenants, agreements, or obligations contained In this
License and Licensee fails to cure said default within thirty (30) days after written notice Is provided
to Licensee by Licensor, or in case of any assignment or transfer of this License in violation of
Section 26 below, Licensor may, at its option, terminate this License by serving five (5) days' notice
in writing upon Licensee. Notwithstanding the foregoing, Licensor shall have the right to terminate
this License Immediately if Licensee fails to provide evidence of insurance as required in Section
15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or
transporting of hazardous waste or hazardous material, notwithstanding anything contained in any
other provision of this License, Licensor may, at its option, terminate this License by serving five (5)
days' notice of termination upon Licensee.
23.3 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 any way affect
Licensor's ability to enforce any Section of this License. The remedy set forth in this Section 23
shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or
In equity.
Form 421; Rev. 20140801
-10 -
Tracking #16-55722
23.4 In addition to and not in limitation of Licensor's rights to terminate this License for failure to provide
evidence of insurance or occurrence of defaults as described above, this License may be terminated
by either party, at any time, by serving thirty (30) days' written notice of termination upon the other
party. Such termination shall not release either party hereto from any liability or obligation under the
License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening
prior to the date of termination or thereafter in case by the terms of the License it is provided that
anything shall or may be done after termination hereof.
23.5 Licensee agrees not to assert that termination of this License is a discontinuance in service that
requires prior approval by the FCC and represents and warrants that It has redundant facilities that
would allow it to continue the provision of service after termination of this License.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost
and expense:
24.1.1 if so directed by Licensor in writing, remove the Improvements, the Communication Line and
all appurtenances thereto, or, at the sole discretion of Licensor, appropriately decommission
the Communication Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premises or Licensor's other property arising from,
growing out of, or connected with Licensee's use of the Premises;
24.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date.
24.2 Upon any expiration or termination of this License, if Licensee fails to surrender the Premises to
Licensor or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration
Obligations"), Licensee shall have a limited license to enter upon the Premises solely to the extent
necessary for Licensee to complete the Restoration Obligations, and all liabilities and obligations of
Licensee hereunder shall continue in effect until the Premises are surrendered and the Restoration
Obligations are completed. Neither tennination nor expiration shall release Licensee from any liability
or obligation under this License, whether of indemnity or otherwise, resulting from any acts,
omissions or events happening prior to the date of termination, or, if later, the date when Licensee
surrenders the Premises and all of the Restoration Obligations are completed.
24.3 If Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such
termination of its tenancy, then Licensor may, at its election, either: (i) remove the Communication
Line and the other Improvements or otherwise restore the Premises, and in such event Licensee
shall, within thirty (30) days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon
written notice to Licensee, take and hold the Communication Line and the other Improvements and
personal property as its sole property, without payment or obligation to Licensee therefor, or (iii)
specifically enforce Licensee's obligation to restore and/or pursue any remedy at law or in equity
against Licensee for failure to so restore. Further, if Licensor has consented to the Communication
Line and the other Improvements remaining on the Premises following termination, Licensee shall,
upon request by Licensor, provide a bill of sale In a form acceptable to Licensor conveying the
Communication Line and the other Improvements to Licensor.
MISCELLANEOUS
25. Successors and Assigns. All provisions contained in this License shall 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 this License.
26. Assignment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written
Form 421; Rev. 20140801
-11 -
Tracking #16-55722
consent of Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any
attempted assignment by Licensee in violation of this Section 28 shall be a breach of this License
and, in addition, shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 28, the word "assign" shall include without limitation (a) any sale of the
equity interests of Licensee following which the equity interest holders of Licensee immediately prior
to such sale own, directly or lndlrectiy, less than 50% of the combined voting power of the outstanding
voting equity interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee
and (ii) to the extent such entitles exist, Licensee's parent and subsidiaries, taken as a whole, or (c)
any reorganization, recapitalization, merger or consolidation involving Licensee. Notwithstanding
the foregoing, any reorganization, recapitalization, merger or consolidation following which the equity
interest holders of Licensee immediately prior to such reorganization, recapitalization, merger or
consolidation own, directly or Indirectly, at least 50% of the combined voting power of the outstanding
voting equity Interests of Licensee or any successor thereto or the entity resulting from such
reorganization, recapitalization, merger or consolidation shall not be deemed an assignment. THIS
LICENSE SHALL NOT RUN WITH THE LAND WITHOUT THE EXPRESS WRITTEN CONSENT OF
LICENSOR, SUCH CONSENT TO BE IN LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the
contrary, If Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in
contravention of the provisions of this License (a "Purported Assignment") to another party (a
"Purported Transferee"}, the Purported Transferee's enjoyment of the rights and privileges granted
under this License shall be deemed to be the Purported Transferee's agreement to be bound by all
of the terms and provisions of this License, including but not limited to the obligation to comply with
the provisions of Section 15 above concerning insurance requirements. In addition to and not in
limitation of the foregoing, Licensee, for itself, its successors and assigns, shall indemnify, defend
and hold harmless Licensor for all Liabilities of any nature, kind or description of any person or entity
directly or indirectly arising out of, resulting from or related to (in whole or in part) a Purported
Assignment.
26.4 The provisions of this Section 28 shall survive the expiration or earlier termination of this License.
27. Notices. Any notice, Invoice, or other writing required or permitted to be given hereunder by one party to the
other shall be in writing and the same shall be given and shall be deemed to have been served and given If
(i) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a
nationally recognized overnight delivery service, addressed to the party to be notified at the address for such
party specified below, or to such other address as the party to be notified may designate by giving the other
party no less than thirty (30) days' advance written notice of such change in address.
If to Licensor:
with a copy to:
If to Licensee:
Jones Lang LaSalle Brokerage, Inc.
4300 Amon Carter Blvd., Suite 100
Fort Worth, TX 76155
Attn: Permits/Licenses
BNSF Rallway Company
2301 Lou Menk Dr. -G0B-3W
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
PacifiCorp
825 NE Multnomah Street
Suite 1700
Portland, OR 97232
28. Survival. Neither termination nor expiration wlll release either party from any liability or obligation under this
License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to
the date of termination or expiration, or, if later, the date when the Communication Line and the other
Improvements are removed and the Premises are restored to its condition as of the Effective Date.
Fonn 421; Rev. 20140801
-12 -
Tracking #16-55722
29. Recordation. It is understood and agreed that this License shall not be placed or allowed to be placed on
public record.
30. Applicable Law. All questions concerning the interpretation or application of provisions of this License shall
be decided according to the substantive laws of the State of Texas without regard to conflicts of law
provisions.
31. Severability. To the maximum extent possible, each provision of this License shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision of this License shall be
prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the
extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any
other provision of this License.
32. Integration. This License is the full and complete agreement between Licensor and Licensee with respect to
all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between
the parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein
is intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold
Licensor harmless in any prior written agreement between the parties.
33. Joint and Several Liability. If Licensee consists of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreements of such parties.
34. Waiver. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way Impair the
right of Licensor to enforce that provision for any subsequent breach thereof.
35. Interpretation.
35.1 This License shall be Interpreted in a neutral manner, and not more strongly for or against any party
based upon the source of the draftsmanship; both parties hereby agree that this License shall not be
subject to the principle that a contract would be construed against the party which drafted the same.
Article titles, headings to sections and paragraphs and the table of contents (if any) are inserted for
convenience of reference only and are not intended to be a part or to affect the meaning or
Interpretation hereof. The exhibit or exhibits referred to herein shall be construed with and as an
integral part of this License to the same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import; "writing", "written" and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a
visible form; references to any person are also to that person's successors and permitted assigns;
"hereof", "herein", "hereunder'' and comparable terms refer to the entirety hereof and not to any
particular article, section, or other subdivision hereof or attachment hereto; references to any gender
include references to the masculine or feminine as the context requires; references to the plural
include the singular and vice versa; and references to this License or other documents are as
amended, modified or supplemented from time to time.
36. Counterparts. This License may be executed in multiple counterparts, each of which shall, for all purposes,
be deemed an original but which together shall constitute one and the same instrument, and the signature
pages from any counterpart may be appended to any other counterpart to assemble fully executed
documents, and counterparts of this License may also be exchanged via email or electronic facsimile
machines and any email or electronic facsimile of any party's signature shall be deemed to be an original
signature for all purposes.
37. Licensor's Representative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF Railway
Company.
END OF PAGE -SIGNATURE PAGE FOLLOWS
Form 421; Rev. 20140801
-13-
Tracking #16-55722
This License has been duly executed by the parties hereto as of the date below each party's signature; to be
effective, however, as of the Effective Date.
LICENSOR:
BNSF RAILWAY COMPANY, a Delaware corporation
LICENSEE:
By: Jones Lang LaSalle Brokerage, Inc.,
4300 Amon Carter Blvd, Suite 100
Fort Worth, TX 76155
By:
Shane Krueger
Title: Vice President -Permits & Special Projects
Date:
PACIFICORP, an Oregon corporation
By:
Title:
Date:
825 NE Multnomah Street
Suite 1700
Portland, OR 97232
-14 -
Form 421; Rev. 20140801
COORDINATE SYSTEM: ..QB..S TRACKING NO. 16:55722
SCALE: 1 IN.= .1QQ_ FT.
NORTHWEST DIV.
ATEWAY SUBDIV
L.S. ~ MP: ...Q..ai
DATE 10/10/2016
LavemaAve
NOTE:
1-3" HDPE
1 OCCUPIED CONDUIT W/
1 ADSS FIBER OPTIC WIRE
DVACANT
EXHIBIT "A"
ATTACHED TO CONTRACT BElVI/EEN
BNSF RAILWAY COMPANY
AND
PACIFICORP
Source: Esri, DigitalGlobe, GeQEye, Ear.thstar
CNES/Airbus DS, USDA, USGS, AEX, Getrnap
awlsstopo, and the GIS User Community
DESCRIPTION OF WIRES UNDER GROUND
WIRES LOCATED AS SHOWN BOLD
TYPE CPMMVNICAJION -ADSS SIZE OF CONDUIT
CONDUIT MATERIAL
WALL THICKNESS
LENGTH ON R/W
NUMBER OF CONDUITS 1
VOLTAGE NIA
NOTE: CONDUIT TO BE INSTALLED BY OPEN TRENCH GROUND LEVEL
TO TOP OF CONDUIT
AT KLAMATH FALLS
COUNTY OF KLAMATH STATEOF OR
' -N-
~
SECTION: 9
TO\IVNSHIP: ~
RANGE:
MERIDAN: WILLM
3"
HOPE
0.318"
20'
3'MIN.
JNC
REVISION 1 DRAWING NO. 67563A
COORDINATE SYSTEM:~
SCALE: 1 IN.= 1W2.. FT.
NORTHVIIEST DIV.
ATEWAY SUBDIV.
LS. ~ MP: ...Q..ai
DATE 10/10/2016
LavemeAve
EXHIBIT "A"
ATTACHED 10 CONTRACT BE1WEEN
BNSF RAILWAY COMPANY
AND
PACIFICORP
TRACKING NO. 16:55722
N
i
SECTION:i.
TOWNSHIP:~
RANGE:
MERIDAN: ~---
EXISTING 095560 POLE
OVERHEAD ENDS
REST IS UNDERGROUND
(SEE 67563A)
RELOCATED OMl62 POLE
TOTAL LENGTH • 230'
TYPE
COMMUNICATION-ADSS
NUMBER
AT KLAMATH FALLS
COUNTY OF KLAMATH
REVISION 1
Source Esri DigitalGlobe. GeoEye, Earthstar Geographies,
CNES/Atrbus OS USDA USGS. AEX Getmapptng Aerogrid IGN. IGP.
,sstopo and lhe GIS User Community
DESCRIPTION OF WIRES OVER TRACK
VVIRES LOCATED AS SHOWN BOLD
VOLTAGE
N/A
STATEOF OR
DISTANCE ABOVE
TOP OF RAIL
28'
CLEARS RAILWAY
COMPANY'S WIRES
N/A
JNC
DRAWING NO. 675638