20200519Notice of Affilitate Transaction.pdf

i{i:irIIVED
YPecrrtConp Pll 2: jlTinothy K. Ctark
Senior Attornqt
, ., 1407 lY. North Temple, Suite 320.,' :,: :Sralt Lake City, AT 84116
801-2204565 ffice
T im. Cl ark@t ac ifi c orp. c o m
May 19,2020
Idaho Public Utilities Commission
11331 W. Chinden Blvd
Building 8 Suite 20lA
Boise,lD 83714
Attention:Diane Hanian
Commission Secretary
PacifiCorp Notice of Affiliate Transaction
Case No. PAC-E-05-8
Dear Ms. Hanian:
Pursuant to Commitmentl l7(2), incorporated in the Idaho Public Utilities Commission
OrderNo. 29973, issued February 13,2006, as supplemented by OrderNo. 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 B[IE), PacifiCorp
hereby provides notice of an affrliated interest transaction with BNSF Railway Company (BNSF
railway) for licenses to construct and maintain facilities through the railroad right-of-way, on the
terms set forth in four agreements titled License for Electric Supply Line Across or Along Railway
Property (the "Licenses"); three Licenses related to BNSF property in Yakima Count5r,
Washington (Tracking No #19-63929, Tracking No #19-63930 and Tracking No #19-64085) and
one License relates to BNSF property in Converse County, Wyoming (Tracking No #19-64402).
Copies of the Licenses are included with this Notice as Attachment A.
PacifiCorp is a wholly-owned, indirect subsidiary of Berkshire Hathaway Energy
Company (BHE). BHE is a subsidiary of Berkshire Hathaway, Inc. (Berkshire Hathaway).
Berkshire currently holds a majority interest in BNSF Railway. Therefore, Berkshire Hathaway's
ownership interest in BNSF Railway creates an affiliated interest between PacifiCorp and BNSF
Railway in some PacifiCorp jurisdictions.
Obtaining the Licenses is in the public interest because it allows PacifiCorp to install and maintain
lines which are necessary for service. Without the License, PacifiCorp cannot meet its obligation
Re:
Diane Hanian
Notice of Affiliate Transaction
M;ay 19,2020
to provide safe and reliable electric service. BNSF uses standardized pricing for these tlpes of
licenses. As the property owner, BNSF is the only entity that can provide the License to PacifiCorp.
Please do not hesitate to contact me if you have any questions.
Sincerely,
7*b K A^."(-*
Timothy K. Clark
Senior Attomey
PacifiCorp
Enclosures
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ATTACHMENT A
Pacifi Coqp Notice of Affi liate Transaction
to
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Trackirq*19€3fl9
LICENSE FOR ELECTRIC SUPPLY LII{E
ACROss OR AtOilG R^ILIVAY PROPERW
(Elecfic Light. Power Supply, lnagpective of Voltage, otrsftsad or Undergromd)
THIS LICENSE FOR ELECTRIC SUPPLY LINE (-Llc.n..') b made to be dective 20_ (tho
Efrrcdw Dd.') by and between BI{EF RAILWAY CilPAI$f, a Delauare corporation (Llcaneof) and PACIFEORP,
an Oregon corporatbn ('t lcrnn').
ln conslderatbn of the mutud @vsnants containocl lunoin, the partles agroe to the following:
GENERAL
Grant of Llcsnee. Llcenaor hereby gmnts Licensse a non-exdutbe lhonso, sut{ect to all rights, inlerssb, and
estatee of thlrd partl6, indudlng, without lfimltratlon, any leaees, use rlghts, eatements, liens, or other
encumbrances, and upon the lerms and conditions set forth below, to construd and malntaln, in strld accordence
with the drawings and specifications approved by Ucensor as part of Lloensee's appllcatlon prooess (the 'Drawlngr
and Spedflcatlonr'), an existing ov€*Ead deE{ric supply llne contralning a maxlmum d three (3) Conductors and
one ne$/ undelground ebcnrb supply line containing a maxlmum d three (3) Conductcs, together with lts
gupporting or contalnlng stuctrree (dlectively, the "Elctilrlc Supply Llnc'), across or along Llcenoo/s railoonilor
at or near the statkm of Selah, County d Yakims, Steto of Waehingbn, Llne Segmenl 0O48, Male Post 93.&4 to
94.39 as shonn on the attachod Drawing No. 76776, dated i,lovember 6, 2019, attachod hereto ae Exhlblt 'Al and
lncorporated |reroln by reference (the 'Prwnlrcr').
Term. Thh Licanse shall oommence on the Effeclive Deb and shallcontirue fq a perkld of trentpfwe (25) years.
subject to prior termlmtbn as h€roinafter d€scribed.
Exls$m lmorovemenB. Lioensee shall not dhturb any imprwemonts d Licemor or Licensofs exlstlng 1es80€8,
li:ensees, easomorf benefciarbs or lien hdders. if any, or lnterfero with the use, repah, malntenance or
rodacsmefit d sucfi improvements.
Uee of thgerembes. Lbeneee shdl use the Premle€s solely for construc{lon, malntenanoe, and use d the Electrlc
Supply Llne in accddanoo wih the Drawings and Specifioations. Llcamee shall not use tlm Premises for any otrer
Purpose.
Aterations. Excapt es set forh in this License, Llcensee may not make any alterations to the Prembes or
permanenUy affix any{hing to the Premis€a or any buildings or other slruc'turee adJacent to the Premises without
Llcensor's fior written consent.
cot PEilSATlOt{
License Foe. Ucenges shall pay Licensor, prior to the Effectlve Date, the sum of three thousand seven hundred
and Ndl00 Dollars ($3,7@.00) as @mpensation for the uee of the Prembo.
Cosb ard Exoens€s.
7.1 For the $rrpose of this License, 'cosf or'coats'and 'expense'or'expans€s' lndudes, hrt is mt limited
to, actual labor and matsrial costs inclrding all assignable additives, and materlal and supdy costs at
cunent value where used.
7.2 Lioensea agrees to reimburse Licensor (pursuant to the terms of Soctbn 8 belour) for all cosb and
expensos incuned by Liensor in connec{ion wiBr Liceneeo's use of tho Premises or the preoenoe,
constructbn and maintenance of th€ Elecfb Supply Line, lrrcludlng but not limited to the fumbhlng of
Llcensor's flaggers and any vehlde rental costs lncruned, lnspec0on coordinatbn, safe*y, mobilizatturn
and/or other oboorvation servbes describect in thb Llcenee (oollectvely, he -Srwlceo'). Licensee ehall
bear the cost of lhe Servioes when deemed neceesary by Licenso/s representative. Flqging cosls shall
include, but not be limited to, the following: pay for at least an eight (8) hour basic day with time and ona'
half or douHe time for overtime, rest dala and holidays (as applicable); vacation allorance; paid holidayr
(as applicable); railway and unemployment insurance; public liabllity and property damage insurance;
Form 421; Rev. 20190916
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health and $/elfare beneflb; transportatlon; meals; lodgirg and supervision. l,legotiations for rallway labor
or collective bargainlng agreemenls and rale changes authorlzed by appropriate Federal authorities may
increase flagging rates. Flagging rates in effect at the time of performance by the flaggers will b€ used to
calculate the flagging costs pursuant to this Soctlon 7.
7.3 Licensor, at its sole discretlon, may elect to designate a thlrd party (the 'Schedullng Agent'), to perform
andlor arange for the performance d the Servlces.
8. Pavment Terms. All invobes are due thirty (30) days affer the date of involce. lf Llcensee fails to pay any monies
due to Lbensor within thirty (30) days affer tle invoice date, then Licensee shall pay interest on such unpaii sum
from the due date untll paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
Steet Janrnal in the preceding December plus two and one-half perenl(2-11206), or (li) the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
9.Reserved Riohts of Usg. Licensor exoepts and reserves the right, to be exercised by Licensor and any other partbs
who may obtain writt€n permission or authority from Ucensor:
9.1 to maintain, uso, opemte, r€pir, replace, modfy and relocate any utility, pow€r or communirntion
pipellinedcables and appurtenances (other than the Electric Supply Line) and other facilitkr or structures
of like character upon, over, under or acnoss the Premisss existing as of the Effeclive Date;
9.2 to constuct, malntialn, renew, use, operate, change, modify and relocate any tracks or additional facllltles,
sh.rctures and relaled aptrJrtenanceg upon, over, under or acrlEs the Premises; or
10.
9.3 to use the Premises in any manner as Licensor in its sole discretion deems appropnale, provided Ucensor
trses all commercially reasonable efrorE b avoid material interferenca wlth the use of the Premises by
Lbensee br the purpos€ sp€cified in Sestlon 4 above.
Rioht to Reouire Relocatbn. lf at any time during the term of this License, Licensor deslres the use of its rail conidor
in such a manner as uould, in Licensor's reasonable opinion, be interfered with bythe Electic Supply Line, Lbansee
shall, at its sole exponse, within thirty (30) da1a after receiving written notice from Licensor to such effect, make
such cfranges in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avold interference
wtth the proposed use of Licensods rail corridor, induding, without limitation, the relocation of the Electric Supply
Line, or the construc{ion of a new electric line to replace the Elec{rlc Supply Line. Notwithstranding the foregoing,
Llcensee agrees to make all emergency changes and minor adjushrents, as determined by Licensor ln its sole
dlscretlon, to the Electrlc Supply LIne promp0y upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construclion and Maintenance of the Electric Suoolv Line.
11.1 Licensee slull not enter the Premises or commence construction unless accompanied by Lioenso/s
representrative, the ScfiedulirB Agent or its des(7nee. Licensee shall notify Licensor's Roadmaster, Mary
Danielson al [e-mail], telephone [phone], at least ten (10) buslness days prior to
installation of the Electric Supply Line and prior to entering the Premises for any subsequent maintenanca
thereon. ln the ewnt of emergency, Licensee shall notify Licensor of Licensee's entry onto lhe Premises
at the telephone number above as soon as practicable and shall promptly thereafter follow up with written
notice of such enby.
11.2 Ucensee's on-site supervisors shall retain/maintein a fully exeorted copy of thls Llcense at all times while
on the Premises.
While on the Premises, Licensee shall use only public roadwala to cross from one side of Licensor's tracks
to the other
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11.3
Fonn 421i Rev. 20190916
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Any contractors or subcontractors performing work on the Elec{ric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
11.5 Under no condilions shall Lioensee be permitted to conducl any tests, invesligations or any other adivity
using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other
materials, within tutrenty-five (25) feet of the centerline of any railroad lrack on the kemises unless Licensee
has obtahed prior rirritten approval from Licensor. Licensee shall, at its sole cet and expense, perform all
activities on and about the Premises, including without limitation all construction and maintenance of the
Eleciric Supply Line, in such a manner and of such malerials as not at any time to endanger or interfere
with (i) the exblence 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 thlrd parties. f
ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition,
Licensee slnll immediately do so. Notwithstanding the foregoing r(1ht of Licensor, the partles agree that
Licensor has no duty or obligation to monitor Licensee's use of the Premises to delermine he safe nature
thereof, it being solely Licens€e's responsibility to ensure that Licensee's use of the Premises is safe.
Neither the exerdse nor the failure by Licensor to exercise any rights granted in this Section will alter the
liability allocation provided by thls License.
11.6 Lioensee shall, at its sole cost and expense, construct and maintain the Electric Supply Line in such a
manner ard of such material that the Electrlc Supply Line wlll not at any time endanger or inlerfere wtth (i)
the existence or use of present or future tracks, roadbeds, or property of Llcensor, (ii) the safe operation
and aclivities of Licensor or existing third parties, or (iii) the rights or lnteresls of third parties. The
construction of the Electric Supdy Line shall be completed within one (1) yaar of the Effective Date, and
any subsequent maintenance shall be completed within one (1) year of inltlation. Within ffteen (15) days
afler completion of the construction of the Electric Supply Line or the performance of any subsequent
maintenance thereon, Licensee shall, at Lioensee's own cost and expense, restore the Premises lo
substantially their state as of the Effective Dale, unless otherwise approved in advance by Licensor in
rrvl'iting. On or before expiration or termination of this Licsrse for any reason, Licensee shall, at its sole cost
and expense, sunender the Premises to Licensor pursuant to the terms and conditions set forth ln Sectlon
24 hereof.
1',t.7 Licensor may direct one or more of its field engineers or inspectors to observe or inspect the construction
and/or malntenance of the Electric Supply Line at any time for compliance with the Drawings and
Specifications and Legal Requirements (defined below). Llcensee shall reimburse Licensor for the cost of
such observatlon or inspection related servlces pursuant to Section 8. lf ordered at any time to halt
construction or maintenance of the Elecbic Supply Line by Licenso/s personnel due to non-compliance
with the Drawings and Specifications or any other ha,ardous condition, Licensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree thal Licensor has no duty or obligation to
observe or inspect, or to halt work on, the Electric Supply Line, it being solely Licensee's responsibilily to
ensure that the Electic Supply Line is constructed and maintained in strict accordance with the Drawings
and Specifications and in a safe and uorkmanlike manner in compliarrce 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. lf at any time Licensee shall, in the sole judgment of
Llcensor, failto properly perform its obllgatlons under thls Sec'tlon 11, Liensor may, at its option and at
Licensee's sole expense, arrange for the performance of such uork as it deems necessary for the safety of
Its operatlons and ac-tivitles. Licensee shall promptly reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Sectlon 8. Licenso/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 lf the operation or maintenance of the Electr'r Supply Line at any time causes interference, induding but
not limited to physical interfererrce from electromagnetic induction, electrostatic induction, or from stray or
other currents, with the facilities of Licensor or of any lessee or licensee of Llcensor, or in any manner
interfere with the operalion, maintenance, or use by Licensor of its right-of-way, tracks, structures, pole
lines, signal and communication lines, radio, or other equipment, devices, other prop€rty or appurtenances
thereto, Licensee agnees immediately lo make such changes in the Electric Supply Line and furnish such
Form421: Rev.20190916
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protective devioes and/or replacement equipment lo Licensor and its lessees or liosnsees as shall be
neoessary, in the judgment of Licensor's repesentativo, to eliminate such interference. The coet of such
protective devir:es and their installatiom shall be borne solely by Licensee. lf any of the interference
covered by this Sec'tlon 11.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediate conective action, Licensee, upon notice ftom Licensor, shall
either, at Licensor's election, cease usirg the Electric Stpply Line for any purpose whaboever 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, untll the protective devices and/or replacement equipment
required by this Sec{ion lt.9 have been installed, prrt In operation, tested, and found to be satisfactory lo
conect the interference.
11.10 Lioensee shall, at its sole cost and experu)e, remove all combustible material from around lrooden poles
on the Premises, if any, and wlll at all tlme keep the space around such poles free of such material, and if
removal of such combustible matedal shall not be attended to with ffieen (15) days afler having been
requested by Llcensor to do so, Licensor shall have the r[hl itself to perform the uork and Llcensee hereby
agrees to reimburse Licensor for the expense so incuned.
12. Borino and Excavation.
12.1 Prlorto Licensee conducting any boring, excavalion, or similarwork on or about any portion of the Premlses,
Licensee shall contact the applicable State's call-before-loudig utility location service to have 3d parties
mark the location of utilities. Licensee shall explore the proposed location for such work wtth hand tmls to
a depth of at least three (3) feet below the surface of the ground to delermine whether pipelines or other
struc-tures exist below the surface, p!gy!d@, @, that in lieu of the foregoing hand-tool exploration,
Licensee shall have the right to use suitable detection equipment or other generally accepted industry
prac{ice (e.9., consulting with the State lnfrasbucture Corporation) to determine the existence or location
of pipelines and other subsurface struc'tures prior to drilllng or excavating with mechanized equipment.
Licensee shal! request information from Licensor concerning lhe exlstence and approximate location of
Licensor's underground lines, utilities, and plpellnes at or near lhe viclnlty of the proposed Electric Supply
Line by contacting Licenso/s Telecommunlcations Helpdesk, currently at 1€0G533-2891 (option 1, then
option 7), at least ten (10) buslness days prlor to installation of the Ebctrlc Supply Line. Upon receiving
Licensee's Umely request, Licensor will provide Licensee with the informatbn Licensor has in its possession
regarding any existing underground lines, utilities, and pipelines at or near the vicinity of the proposed
Eleclrlc Supply Line and, if applicaHe, identify tha location of such lines on the Premises pursuant to
Llcensor's standard procedures. Licensor does not wanant the accuracy or completeness of information
relating to subsurface conditions of the Pr€mises 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 Llcensor prior to construction. This study is
to determine if granular material is present, and to prevent subsidence during the installation process. lf
the investigation determines in Licensor's reasonable opinion thal granular matorial is present, Licensor
may select a new locatlon for Licensee's use, or may require Licensee to furnish for Llcenso/s review and
approval, ln Llcenso/s sole dlscretion, a remedial plan to deal with the granular material. Once Llcensor
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 consfucted on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not rrcrking 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 lo sunounding ground levelwlth compacted bentonite grout; or
12.3.2 otherwlse secured or retlred ln accordance with any applicable Legal Requirement. No excavated
materids 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.
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LIABLTY AXD INSURANGE
13. Liabilitv and lndomnificatbn.
,3.1 For purposes of this License: (a) "lndemnltees" meens Licensor and Licenso/s affiliated cornpanieo,
partners, suoosssoFs, assigns, legal representatives, offi@rs, directors, shareholders, employe€s, and
agents; (b)'Llabllltlec'rneans alldaims, liabilitles, fines, penalties, costs, damages, losses, liens, causes
of ac'tion, suits, demands, judgments, and expenses (including, withorlt limitation, @urt oogts, reasonable
attorneys' fees, cosb of irvest(;atbn, removal and remediation, and governmental oversight costs)
environmenlal or otheruiee; and (c) 'Llceneee Pailleg" means Lioensee and Licensee's officeis, agents,
invitees, licensees, employees, or conhac'tore, or any pafi direc{y or indirec'tly employed by any of them,
or any party th€y control or exercise control over.
13.2 TO THE FULLEST EXTEI{T PERM|TTED BY LAW, LICEilSEE SHALI- AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, NDEIilNIFY, DEFEND AND HOLD HARIUTLESS INDEIUINITEES FOR,
FROTI, AND AGAINST ANY ATIID AtL LIABILITIES OF At{Y NATURE, KIND, OR DESCRIPT|ON
DIRECTLY OR TNDTRECTLY AR|S|NG OUT OF, RESULTING FROm, OR RELATED TO 0N WHOLE OR
rN PART):
13.2.1 THIS LICENSE, INCLUDING, WTHOUT LIi']TATION, ITS ENVIRONI'ENTAL PROVISIONS,
13.2.2 ANY RIGHTS OR IIIITERESTS GRAi{TED PURSUA}IT TO THIS LICENSE,
13.2.3 LICENSEES OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIROT{MENTAL COI{DITION AND STATUS OF THE PREilISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OIIISSION OF ANY LICENSEE PARW.
13.3 TO THE FULLEST EXTENT PER]ilITTED BY LAw' LICET{SEE NOW Al{D FOREVER WAIVES, AND
WLL INDEMilIFY, DEFEND, AND HOLD THE INDEIIilIIEES HARTILESS FRO]UI A,IIY AND ALL
CLAlilS THAT BY VRTUE OF E'{TERING INTO THIS LICENSE, LICENSOR lS A GENERATOR,
OVI'NER, OPERATOR, ARRANGE& OR TRANSFORTER FOR THE PURPOSES OF THE
COTIPREHENSIVE Ei{VIROi{IIETIITAI RESPONSE, COI,PEN3ATIOI{, AITID LIABILITY ACT, AS
AiTENDED ("CERCI3") OR OTHER E]{VIRONMENTAL LAWS (DEFTNED BELOUY}. NOTHTNG tN
THIS LICENSE IS UEAI{T BY E]THER PARTY TO COT{STITUTE AWAIVER OF ANY INDETNITEE'S
COUI'ON CARRIER DEFENSES AT.ID THIS LICEilSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURr CONSTRUES THIS UCENSE TO BE A WAIVER OF ANY IT{DEIINITEE'S
COillilON CARRIER DEFENSES, LICEI{SEE AGREES TO INDEIiT{IFY, HOLD HARiILESS, AiID
DEFEND INDEITNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUGTIoI{ OF THIS
LICENSE. IN NO EVEiIT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PRET,IISES
AS CONTEUPI.ATED BY THIS LICENSE SHALL LICENSOR BE RESPOilSIBLE TO LICENSEE FOR
THE ENVIRONTIEITITAL GONDITION OF THE PREiIISES.
13.4 IF ANY EMPLOYEE OF AIY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF
ANY INDEUNITEE, TO THE FULLEST EXTENT PERMTTTED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE ITS CONTRAGTOR TO, RELEASE, I]IIDEMNIFY, DEFEND, AND HOLD THE INDET}IITEES
HARI|LESS FROii AND AGATNST ANY UABILITTES ARISTNG OUT OF OR REr-ATED TO 0N WHOLE
oR tN PART) ANY SUCH ASSERTION |NCLUDING, BUT NOT LrttTED TO, ASSERTTONS OF
EIIIPLOYITENT BY AN INDEUN]TEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL ETIPLOYERS'LIABIUTY ACT, THE SAFEW APPLIANCE ACT, THE
LOCOMONVE NSPECTION ACT, THE OCCUPATIOI{AL SAFEW AND HEALT}I ACT, THE
RESOURCE COT{9ERVATION Al{D RECOVERY ACT, AND ANY SIiIILAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIOI{S OF LICENSEE SHAL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIMATELY CAUSED BY THE GROSS T{EGLIGENCE OR WLLFUL MISCONDUCT OF A!'IY
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INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABIL]TIES, INCLUDING THOSE ARISING FROU
OR ATTRIBUTED TO AT{Y OTHER ATLEGED OR ACTUAL NEGLIGENCE, IIIITENTIONAL ACTS, OR
STRICT LIABIL]TY OF ATIIY INDEMNME.
13.6 Upon written notice from Licensor, Licensee agreos to assume the defense of any lawsuit or other
proceeding brought against any lndemnitee by any entity, relating to any matter covered by this License for
which Lioensee has an obligatbn to assume liability for and/or save and hold harmtess any lndemnitee.
Licensee shall pay all costs and expenses incident to sucfi defense, induding, but not limited to, reasonable
atlorneys'fees, lnvesUgators'fees, litlgatlon and appeal expenses, setflement payments, and amounts paid
in satisfaction of Judgments.
Personal Propertv Risk of Loss. ALL PERSONAL PROPERW, INCLUDING, BUT tlOT LIMITED TO, FIXTURES,
EQU|PME],|T, OR REI-ATED MATERIALS UPONTHEPREITISESWLL BEATTHE RISKOFLICENSEE ONLY,
AIID NO INDEilNrrEE WILL BE LIABLE FOR A}OT DAMAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF AT{Y INDEUNITEE.
lnsurance. Licensee shall, at its sole cost and exp€ns€, p(rcure and maintain durlng the term of this License the
following insurance oov€rage:
15.1 CommercialGeneral Liability'CGL" lnsurance.
a. The policy will provide a minimum of $2,000,000 per occunence and an aggregate limit of at least
$4,000,000 but in no event willthe coverage be in an amount less than the amount otheruise canied
by Lioensee. Coverage must be purchased on a post 2004 ISO occun€nce form or equivalent and
include coverage for, but not limited to, the following:. Bodily lnjury and Property Damage. Personal lnjury and Advertising Injury
' Fire legalliabllity
' Products and comfleted operatlons. Conhactual Liabili$ for an "lnsured Contracf' consistent with the definition under the standard ISO
general liability policy form.
b. The parties agree that the workers'cornpensation and ernployers' liabitity related exclusions in the CGL
polby(s) are intended to apply to employees of the polhyhdder and will not apply to Licensor's
employees.
c. No other endorsements that limit coverage with respect to Licensee's obligatbns under this agreement
may be included on the policy.
15.2 BusinessAutomobile lnsurance.
a. The insurance will provide minimum @verage with a combined single limit of at least $1,000,000 per
accident, and include coverage for, but not limited to the following:. Bodily injury and proporty damage.. Any and all vehicles owned, used or hired.
b. Tlte policy Mll include the following endorsements or language, which will be indicated on or attached
to the certificate of insurance:. Waiver of subrogation in favor of and acceptable to Licensor.. Addltional insured endorsement in favor of and acceptrable to Llcensor.
' Separatlon of insureds.. The policy shall be primary and non-confibuting with respect to any insurance carried by Licensor.
15.3 Workers' Comoensation and Emolovers'Liabilitv lnsurance.
The policy will provkJe @verErge of all employees performing any part of the work or services
including coverage for, but not limited to:
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Licansee's statutory liability urder the workers'compensatbn laws of the state(s) in which the work
or services are to be performed. The policy will cover all of Liensee's employees, regardless of
wtretrer such coverage is optional under the law of that state(s),
Emplolrcrs' Liability (Part B) with limits of al least $500,000 each accident, $500,000 by disease
policy limit, $500,000 by disease each employee.
b. The policy will irrclude contain the following endorsements or language, whlch shall be indicated on or
attached to the certilicate of insurance:. Waiver of subrogation in favor of and mceptable to Licensor.
Railroad Protective Liabilitv lnsurance. The policy will name only Lioensor as the lnsured and wlll provide
ooverage of at least $2,000,000 per occursnce 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 Electrlc Supply
Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COiTPLETEO WlTHll{ ONE
(1) YEAR OF THE EFFECTIVE DATE. lf turther maintenance of the Electric Supply Line is needed al a
later date, an additional Railroad Protective Liability lnsuranoe Policy shall be required. The policy will be
issued on a standard ISO form CG 00 351204 and include the following:. Endorsed to include the Pollution Exclusion Amendment.. Errdorsed to include the Limited Seepage and Pollutlon Endorsement,, Endorsed to remove any exclusion for punitive damages.. Endorsed to include Evacuation Expense Coverage Endorsement.. No other endorsements restricting coverage may be added.. The original policy musl be provided to Licensor and Licensee shall not perform servim or work of any
kind under this agreement until Lkxnsor has reviewed and approved the pollcy.. The definition of 'Physical Damage to Property" will be endorsed to read: "means direcl 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 contro! (including, but not limited to rolling stock and their contents, mechanlcal
construction equipment or motive power equipment, railroad tracks, roadbeds, catenarles, slgnals,
tunnels, bridges and buildings) arising out of the acts or omissions of the contractor named on the
Declarations."
ln lizu of providing a Railroad Protective Llablllty Policy, for a period of one (1) year from the Effective Date,
Licensee may participate ln Licenso/s Blanket Railroad Protective Liability lnsurance Policy available to
Licensee or its contractor. The limits of coverage are the same as above. The cosl is $506,00.
o Llcensee alects to participate in Licenso/s Blanket Pollcy;
tr Lir:ensee declines to participate in Licensor's Blanket Policy.
15.5 OtherReouirements.
15.5.1 Where allowable by law, no exclusion for punitive damages may be included in any policy.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Lbensor. ln addition, Llcensee's lnsurers, through the terms of the policy or poliry endorsement,
waive their right of subrogation against Licensor for all claims and suits. Licensee further waives
its rlght of recovery, and its insurers 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 conhol.
15.5.3 Allocated Loss Expense, including but not limited to defense costs and expenses, willbe in addition
to all policy limits for coverage under the insurance requlrements.
Licensee is not allowed to self-insure without the prior written consent of Licensor. lf Licensor
allorrrrs Licensee to self-insure, Li@nsee shall diracty cover any self-insured retention or other
financial responsibility for claims in lieu of insurance. Any and all Llcensor liabilities that would
otherwise be covered by Licensee's insurance in accordance with the provisions of this agreement,
will be covered as if Licensee elected not to include a self-insured retention or other financial
responsibility for claims.
-t - Form121: Rev.20190916
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15.4
15.5.4
Tracklng #10S3929
15.5.5 Prior to commencing any seMcas or other work under this agreement, Licensee shallfumbh to
Lbensor an acceptable certificate(s) of insurance from an authorized representative evidencing the
requhed ooverage(s), endotrements, and amendments.
15.5.6 Licensee agrsos to provide evidence to Llcensor that it has the required coverage in place at least
annually or in the event of a renewal or material change of coverage.
15.5.7 Any insurance pollcy shall be wrltten by a reputable insurance company acceptable to Licensor or
with a cungnt Best's Guide Rating of A- and Class Ml or better, and authorized to do business in
the state(s) in which lhe service is lo be provided.
15.5.8 lf the coverage provkJed by any of the insurance policies required by this agneement ls prrchased
on a'claims made'basis, Licensee hereby agrees to maintain covemge in force for a mlnlmum of
three years after expiralion, cancellation or termination of this agreement.
15.5.9 Licensee agrees to provide eviderpe to Lioensor hat it has the required ooverag€ ln place at least
annually or in the evenl of a renewal or matedal change of coverage.
15.5.10Lioensee represenb that this License has been thoroughly reviewed
agent(slbroke(s), and that Licensee has lnstructed them to procure
roquired by this License.
by Licensee's insurance
the insurance coverage
15.5.11 Not more frequendy than onc€ evary flve years, Llcensor may, at lts dlscretion, reasonably modify
the lnsurance requlrements to refl€ct the then-cunent risk management practices ln the rallroad
lndustry and underwiting praclices in the insurance industry.
15.5.121f Licensee will subconhact any portion of the operation, Licensee shall require that the
subcontractor provide and maintain insurance coverage(s) as setforth herein, naming Licensor as
an additional insured. ln addition, Licensee shall require that the subconhactor shall release,
defend and indemnify Licensee to the same axtent and under the same terms and conditions as
Licensee is requlred to rel6ase, de{end and indemnify Licensor under this agreement.
15.5.13 Failure to provide evidence as required by thls section shall entitle, but not require, Licensor to
terminate this Liccnse immediately. Aoceptance of a certflcate that does not comply with this
section shall not operate as a nraiver of Lioensee's obligallons hereunder.
15.5.14 The fact thal Licensee obtains lnsuranc€ (includirg, without limitation, self-lnsurance) shall not
release ordiminish Licensee's liabilities or obligations including, wilhout limltalion, the liabilities and
obligations under lhe indemnity provisions of the License. Damages recoverable by Licensor shall
not be limited by the amount of the required insurance ooverag€.
15.5.16 ln the event of a claim or lavvsuit involving Licensor arising out of this agreement, Liensee will
make lhe policy covering such daims or lawsuits avallable to Licensor.
15.5.16 lf Licensee maintains broader coverage and/or higher limits than the minimum requirements in
this Agneement, Licensor requires and shall be entilled to the broader coverage and/or the higher
limits, Any available insurance proceeds in excess of the specifled minimum limits of ansuran@
and coverage shall be available to Licensor.
15.5.17 These insurance provisions are intended to be a separate and dislinct obl(Tation on the part of the
Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bornd thereby
regardless of wtrether or not indemnity provisions are determined to be enforceable in the
jurisdiction in which the work or services are performed under this License.
15.5.1 8 For purposes of this Sec'tlon 15, Licensor shall mean 'Burlington Northern Santa Fe, LLC", "BNSF
Railway Companf and the subsidiaries, su@essors, assigns and afiiliates of each,
-8-Form 421; Rev.20190916
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coMPLtANCE WrrH LAWS. REGULATTONS. ANp ENVTRONUEilTAI MATTERS
16. eqmoliarrce with Laws, Rules, and Reoulations.
16.1 Licensee shall observe and comply with any and all applicable federal, state, local aM tribal laun, statutes,
regulations, ordinan@s, orders, oovenants, restrictions, or decisions ol any court of competent jurisdbtion
("Legal Requirementc') relating to the construction, maintenance, and use of the Electric Supply Line and
lhe use of the Premises.
16.2 Prior to entering the Premises, Licensee shall and shall cause its conlracto(s) to comply with all of
Licensor's applicable safety rules and regulations. Licensee musl ensure thal each of its employees,
@ntractors, agents or invitees entering upon the Premlses completes the safety orientation program at the
Website 'wrirnr.BNSFcontractor.com" (the Safety Orlentatlon') wlthln one lear prior to enterang upon the
Premises. Additionally, Llcensee must ensure that each and every employee of Licensee, its contraclors,
agents and invitees possess a c,ard certifying completion of the Safety Orientation prlor to entering upon
the Premlses. Licensee must renew (and ensure that its @ntraclors, agents or invltees, as applicable,
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 \ /ay, Basements, lienses and other agreements relating to the grant of rights and interests in
and/or acoess to the Premises (collectively, the 'Rlghtt') and such other rights, licenses, p€rmits,
authorizalions, and approvals (including without limitation, any neoessary local, state, federal or tribal
authorizations and environmential permits) that are necessary in order to permit Licensee to consbuct,
maintiain, own and operate the Electric Supply Line and otherwise to perform its obligatbns hereunder in
accordance wlth the terms and oonditions 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, fior to the last day of the term of this License or, if the initial
stated term of any such Right explres ln accordance wlth lts ordlnary terms on a dale earlier than the last
day of the term of this License, Licensee shall, at ils cost, exercise any renewal rights thereunder, or
othenryise acquire such extenslons, additions and/or replacements as may be necsssary, 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 lhe expiration or termination of any Right that is necessary in order for Li:ensee to own, operate or
use the Electric Supply Line in accordance with the terms and conditions of this License, this Licpnse
thereby shall automatkxlly 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 lhe Premises, induding, 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 refened to as the 'Environmenta! Laws'). Licensee shall
not maintain a treatmont, storage, transfer or disposal facility, or underground storage tank, as defined by
Environmental Lanrs on the Premises. Licensee shall not release or suffer the release of oil or hazadous
substances, as defined by Environmental Laws on or about the Premises.
17.2 Licensee covenants that it will not handle or tranSport "hazardous wasle" or 'hazardous substiances", as
'hazardous waste" and "hazardous substancesn may now or in the fufure 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.
Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (E00) 832-5452
of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation of
Environmenlal Laws, or (iii) inspection or inquiry by govemmental authorities charged with enforcing
Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to
prompty respond to any release on, from, or affecting the Premises. Licensee also shall give Licensor
Form 421: Re'r.201$916I
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immediate notice d all measures underteken on behaff of Lhensee to investigate, remediate, respond to
or otherwhe cur€ such release or violation.
17.4 lf Lioensor has notlce from Licensee or othenrise of a release or violation of Environmental Laws arlslng in
any way with respect to the Elecfic Supply Line which occurred or may occr.rr durlng the term of thls
Lioense, Lioensor may require Licansee, at Liconsee's sole dsk and expenss, to take tlmely meagures to
invest(;ate, remediate, respond to or otherwise cure such release or violation afiectlng the Premises or
Licen so/s right-of-way.
17.5 Licensee shall pmmptly report to Licensor in writing any conditions or activities upon the Prembes knorn
to Lil:ensee which create a risk of harm to percons, pmperty or the environmont and shall take wtratever
action is necessary to prevent injury to pensons, property, or lhe environment arislng out of such conditions
or activitles; provided, hovtrever, that Licensee's reporting to Lbensor shall nol relieve Llcensee of any
obligation whatsoever imposed on it by this Lbense. Licensee shall prompty respond to Licenso,'s request
for information regarding sald oonditione or actlvlUes.
DISCLAITT ER OF WARRANTIES
18. No Wananfles.
18.1 LICEI{SOR'S DUTIES At{D WARRANTIES ARE LIIIITED TO THOSE EXPRESSLY STATED IT{ THIS
LICENSE AND SHALL NOT INCLUDE ANY ITPLIEO DUTIES OR IIIPLIED WARRA'{TIES, NOW OR
IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN ]tiADE BY UCENSOR
OTHER THAN THOSE COiTTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR I}IPUED, WITH RESPECTTOTHE PREIIISES OR WHICH IUIAY EXIST
BY OPERATION OF I.AW OR IN ESUITY, INCLUDING, WITHOUT IIIIITATION, ANY WARRANW OF
IUIERGHANTABILITY, HABITABILITY OR FITilESS FOR A PARTICULAR PURPOSE.
18,2 LIGENSOR MAKES NO WARRANW, REPRESENTATIO}I OR CONDITION OF ANY XIND, EXPRESS
oR tmPLlED, CONCERilNG (A) THE SCOPE OF THE LTCENSE OR OTHER RtcHTS GRANTED
HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LTCENSEE S CONSTRUCTKIN,
IIAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LIilE WILL
VIOLATE OR INFRINGE UPON THE RIGHTS, IIIITERESTS AilD ESTATES OF THTRD PARTIES,
INCLUDING, WITHOUT UUITANON, A}IY LEASES, USE RIG}ITS, EASEi'ENTS AND LIEN9 OF ANY
THIRD PARW.
Dlsdaimer of Wanantvfor Quiet Eniovment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREIIIISES
NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVEilANT OF QU]ET ENJOYTf,ENT IS MADE.
Eviction at Risk of Licensee. ln case of the evictbn of Licensee by anyone orning, daimirB tlte to, or claimlng any
interest in the Premises, or by the abandonment by Licensor of the affected rail conidor, Licensor shall not be liabte
(i) to refund Licensee any comp€nsation pakl hersunder, except for the pro-rata part of any reatning charge paid
in advan@, or (ll) for any damages or @sts Llcenses sustalns in connectlon wlth the eviction.
LIENS AND TA)(ES
Llens and Charoes. Licensee shall promptly pay and dlscharge any and all liens arising out of any construc'tbn,
alterations or repairs done, sufiered or permitted to be done by Licensee on the Premises. Licensor ls hereby
authorized to post any notices or trake any other action upon or with respect to the Premises that is or may be
permitted by law to prevent the attachment of any such liens to the Premises; provided, however, that failure of
Llcensor to take any such ac-tion shall not rdieve Licensee of any obligation or liability under this Sectlon 21 or any
other Section of this License.
Taxes. Licensee shall pay when due any tax$, assessments or other charges (collectlvaly, 'Taxel") tevied or
assessed by any gov€rnmental or quaslgovemmential body upon the Eleclric Supply Line or any other
improvements constructed or installed on the Premises by or for Licensee (collec{ively, the "lmprovements") or
any Taxes levied or assessed against Liensor or the Premises thal are attributable to the lmprovements,
Form 421: Rev. 20190916
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2t.
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22
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DEFAULT. TERMINATIOT{. AND SURRENDER
Default and Termination. ln 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 Sectlon 15, he following events are also daemed to be
events of default pursuant to wtrich Licensor has the right to terminate as set fortr below:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in thiE License
and Licensee fails to cure saiC default within thirty (30) days after written notice is prwkled to Lkrnsee by
Licensor, or in case of any assignment or transfer of this License in violation of Section 26 belou Lioensor
may, at its option, terminate lhis License by serving five (5) days' rrctice in uniting upon Licensee.
Notwithstanding the foregolng, Llcensor shall have the right to termlnale this License immediately if
Licensee fails to provide evidenc,e of insurance as required in Section 15.
232 Should Licensee not comply fully with the obligations of Sec-tlon l? regading the handling or transporting
of hazardous waste or hazardous materlal, notwlthstandlng anything contalned in any other provision of
this License, Licensor may, at its option, terminate this License by serving live (5) darc' notice of terminafion
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 subsequenl default or defaults, nor shall any such waiver in any way #ect Llcenso/s ablllty
to enforce any Section of this License. The remedies set forth in his Sectlon 23 shall be in addhion to,
and not in limitation of, any other remedies that Licensor may have at law or in equity.
23.4 ln addition to and not in limitation of Licenso/s rights to terminate this License for failure to provide evkJence
of insuranoe or occurrence of defaults as described above, this License may be terminated by either party,
at any tirne, by serving thirty (30) days'written notice of termination upon the other party. Sucfi termination
shall not release either party hereto from any liability or obligation under the License, whether of indemnity
or othenrvise, resulting fiom any acts, omissions or events happening prior to the date of termination or
thereafler in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Sunender of ttre Premlses.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at lts sole cost and
exp€nse:
24.1.1 if so directed by Licensor in writing, remove the lmprovements, the Elec{ric Supply Line and all
appurtenances thereto, or, at the sole discretion of Licensor, appropriately decommission lhe
Electric Supply Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premises or Licenso/s other property arising from, grouing
out of. or connected with Licensee's use of the Premises;
241.3 remedy any unsafe condilions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substanlially the condition wtrich existed as of the Effective Date or as
otheruise agreed to by Licensor.
24.2 Upon any expiration or termination of this License, if Licensee fails to sunender the Premises to Licensor
or if Licensee fails to complete its obligations under $ectlon 24.1 above (the'Restoratlon Obligatlone'),
Licensee shall have a limited license to enter upon the Premlses solely to the extent necessaryfor Licensee
to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall
corilinue in effect until the Premises are sunendered and the Restoration Obligations are completed.
I,leither termlnation nor expiration shall release Licensee from any liability or obligation under this License,
whether of indemnity or othenvise, resulting ffom any acts, omissions or events happening prlor to the date
of termination, or, if later, lhe date nrtren Licensee surrenders the Premises and all of the Restoration
Obligations are completed.
- 11-
Form 421; Rev. 20190916
Tracking #1963929
24.3 lf Licensee falls to comflete the Restoration Obllgations 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 lmprovements or otherwise restore the Premises, and in such event Licensee shall. within hirty
(30) days afler recelpt of blll therefor, reimburse Licensor for cost lncurred, (ii) upon written notice to
Licensee, take and hold the Electrlc Supply Line and lhe other lmprovements and porsonal property as its
sole property, withoul payment or obligation to Licensee therefor, or (lil) specifrcally enforce Licensee's
obllgation to restore and/or pursue any remedy at law or in equity against Lloensee for failure to so restore.
Further, if Licensor has consented lo the Elactrlc Supply Llne and the other lmpmvements remaining on
the Premises folloring termination, Licensee shall, upon request by Licensor, provide a bill of sale in a form
acceptable to Licensor conveying the Eleclric Supply Line and the other lmprovements to Licensor for no
additional consideration.
I'ISCELLANEOUS
25.Successors and Assions. All provisions contained in this License shall be binding upon, inure to the benefit of, and
be enforceable by the respective sucoessors and assigns of Licensor and Licensee to the same axtsnt as lf each
such successor and assBn was named a party to this License.
26. Assionment.
26.1 Licensee may not sell, assign, fansfer, or hypothecate tlt's License or any right, obligation, or interest
herein (oither voluntarily or by operation of law, m6rger, or othenptse) without the prior uritten consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
asslgnment by Llcensee ln violatlon of ttls Sec$on 26 shall be a breach of thls Llcense and, in addition,
shall be voklable by Licensor in its sde and absolute discretion.
26.2 For purposes of this Sec-tlon 26, the word 'assign" shall include without limltatlon (a) any sale of the equity
interesE of Licensee following which the equity interest holders of Licensee lmmedlately pnor to such sale
own, direcdy or indirectly, less than 50% of the combined voting power of lhe outstanding voting equity
interesG of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Lioensee's parent and subsidiaries, taken as a whole, or (c) any reorganizatlon,
recapltalization, merger or oonsolidation involvirB Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, m€rger or consolidation following which the eguity interest holders of
Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
or indirec0y, at least 50o/o of the combined voting pot^rcr of the outstanding voting equity interests of
Licensee or any sucoessor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolldation 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 Sectkrn 26.1 above or anything contained in this Llcense 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
Lirrcnse, including but not limited to the obligation to comply with the provisions of Sectlon 15 above
concerning insurance requirements. ln addition to and not in limitation of the foregoing, Licensee, for itself,
Its successors and assigns, shall indemnify, defend and hold harmless Llcensor for all Liabilities of any
nature, kind or description of any person or entity direcfly or indirectly arising out of, resulting from or related
to (in whole or in part) a Purported Assignment. The provisions of this Soctlon 26.3 shall survive the
expiration or earlier termination of this License.
26.4 Licensor shall have the right to transfer and assign, in whole or part, all of its righls and obligations under
this License, aM upon any such bansfer or assignment, Licensor shall be released from any further
obligntions hereunder and Liensee agrees to look solely to the successor an interest of Licensor for the
performance of such obligations.
Form 421; Rw. 20190916
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Notices. Any notice, invoice, or olher writing required or permitted to be given hereunder by one party to the other
shall be in rvriting 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 serykE, addressed to the party to be notified at the address for such party spocified below, or to
sucfr other address as the party to be notified may designate by giving the other parly no less than thirly (30) daye'
advance written notice of such change h address.
lf to Licensor:Jones Lang LaSalle Brokrage, lnc.
4200 Buckingham Rd., Suite 110
FortWorth, TX 76155
Attn: PermitslLicenses
with a copy to BNSF Railway Company
2301 Lou Menk Dr., GOB-SW
FortWorth, TX 78131
Attn: Senlor Manager Real Estate
lf to Licensee:PacifiCorp
825 NE Multnomah Steet, Suite 1700
Portland, OR 97232Attn: Rightof-WayDept.
Survival. Neither termination nor expiration will release either party from any liability or obligation under thls Llcense,
whether of indemnity or othenrise, resulting from any acts, omissions or events happening prior to th€ date of
termination or expiralion, ot, if later, the date when the Electric Supply Line and the other lmprovements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
Reoordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
Aoolicable Law. All questions concerning the interpretation or application of provisions of this License shall be
decided according to the substantlve laws of the State of Texas without regard to conflicts of law provisions.
Severabllitv. To the maximum extent possible, each provision of this License shall be lnterpreted in such manner
as to be sffective and valld under applicable law, but if any provision of this License shall be prohlbited by, or lreld
to be lnvalid under, appllcable law, such provision shall be ineffective solely to the extent of such prohibition or
invalidity, and this shall not invalidate the remairrder of such provision or any other provision of this License.
lnteoration. 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 relaUng to Licensee's use of the Premises as described herein. Horflever, nothing herein is intended
to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in
any prir written agreement between the parties.
Joint and Several Llabllitv. lf Llcensee consists of two or more parties, all the covenants and agreements of
Licensee hereln contalned shall be lhe joint and several covenants and agreements of such parties.
Walver. The waiver by Licensor of the breach of any prwision herein by Licersee shall in no way impak the right
of Licensor to enforce that provision for any subsequent breach thereof.
lnteroretation.
35,1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based
upon the source of the draftsmanship; both parties hereby agree that this License shall not be subject to
the principle that a confact 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 lo be a part or to affect the meaning or interpretation hereof. The
Form 421: Rev. 20190916-13-
28.
N,
30.
31.
32
33.
u.
35.
36.
37
Tracking #19€3929
exhibit or sxhibits refened to herein shall be constued with and as an integral part of thls Lioense to the
same extent as lf they were setforfi rcrbatim hersln.
35,2 As ueed herein, "include', "lncludes'and "lncluding'are deemed to be followed by Mthout llmltatlon'
whether or not they are in faci followed by such trmrds or uords of like lmport; \rlling', lvriten'and
cornparabb terms rsfe to printing, typlng, lithography and other maans of reprodudng uvords in a vlslble
form; references to any porson are also to that p€rson's slrcoessors and permltted assigns; ttereof,
'hereln", "hereunder" and comparable terms rsfer to the entiraty hereof and not to any par0cular arllcle,
sec-tlon, or olher suMfulslon hereof or attachment hereto; references to any gender include refannces lo
the mascullne or feminine as the context requires; references to the plural include the singular and vice
\rersa: and refererrcee to this License or other documents ars as ameMed, modified or supplemented from
tlme to Ume.
Counteroarb. This Llcerse may be executed in mulUple counterparts, each of which shall, for all purposes, be
deemed an origlnal but whlch together shall constitute one and the same instrument, and the signatun pages from
any counterpart may be appended to any other counterpart to assemble fully executed documenb, and counterparts
of this License may also be exchanged eleclronically and any electronic version of any party's signature shall be
deemsd to be an original signature for all purposes.
Licenso/s Reoresentalive. Jones LarB laSalle Brokerage, lnc. is acting as representative for BNSF Rallway
Company.
END OF PAGE - SIGT{ATURE PAGE FOLLOWS
-14-Form 421: Rev. 20190916
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LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RATLWAY PROPERW
(Electric Light, Power Supply, lnespective of Voltage, Overhead or Undergrornd)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("Llcense') is made to be effective 20_ (the
"Effective Date') by and betn€en BNSF RAILWAY COMPANY, a Delaware corporation ("Llcencor') and PAGIFICORP,
an Oregon corporation ("Llcencee").
ln onsideration of the mutual ovenants contained herein, the partles agree to the following:
GEilERAL
Grant of Llcense. Liensor hereby grants Licensee a non+xcluslve llcense, subJect to all rights, intsests, and
estates of third parties. including, without limitation, any leases, use rights, @sements, llens, or other
encumbrances, and upon the terms and condilions set forth below, to construcl and maintiain, in sbict accordance
with the drawlngs and specifications approved by Lioensor as part of Licensee's appllcation process (the 'Drawlngs
and $peclflcatlons'), an existlng overhead elec'trlc supply line containing a maximum of three (3) Conduotors and
one new underground electric supply line containing a maximum of three (3) Conductors, together with its
supporting or contalning structures (collecWely, the'Electrlc Supply Llne"), acrosE or along Licenso/s rail conirJor
at or near the station of Selah, County of Yakima, State of Washington, Line Segment 0048, Mile Post 93.94 to
94,39 as shown on the attached Drawing No.76777, dated October 30, 2019, attached hereto as Exhlblt -A'and
incorporated herein by reference (the "Premlsee").
Term. This License shall commenoe on the Efiec{ive Date and shall conUnue for a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
1
2.
3.Exbtino lmorovements. Licensee shall not disturb
licensees, easement beneficiaries or lien holders
replacement of such improvements.
improvements of Licensor or Licenso/s exlstlng lessees,
any, or interfere with the use, repair, maintenance or
any
,'tt
4.
5.
Use pf the Premi$gs. Licensee shall use the Premises solely for oonstruction, maintenance, and use of the Elecbic
Supply Line ln accordance with the Drawings and Specifications. Licensee shall not use the Premises for any other
purpose.
Alteratiors. Except as sel forth in thls License, Licensee may not make any alterations to the Premises or
permanently affix anything to the Premises or any buildingo or other structures adjacent to the Premises without
Licensor's prior written consent.
GOIIPENSATION
License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of three thousand seven hundred
and No/l00 Dollars ($3,700.00) as comp€nsation for the use of the Premises.
7. Costs and Exoenses
7.1 For the purpose of this License, '@sl' or ncosts' and "expense" or "exp€nses' indudes, but is not limited
to, aclual labor and material costs including all assignable additives, and material and supply costs at
cunent value where used.
7.2 Licensee agrees to reimburse Licansor (pursuanl to the terms of Sectlon 8 below) for all costs and
expenses incuned by Licensor in conneclion with Licensee's use of the Premises or lhe presen@,
construction and maintenance of he Electric Supply Line, including but not limiled to the fumishing of
Llcensor's flaggers and any vehicle rental costs incuned, inspection coordination, safety, mobilization
and/or other observatbn seMces described in this License (collectively, the "Solices'). Licensee shall
bear the cost of the Services when deemed necessary by Licensor's representative. Flagging costs shall
include, but not be limited to, the following: pay for at least an eight (8) hour basic day with time and one-
half or double time for overtime, rest dala and holidays (as applicable); vacation allowance; paid holktaya
(as applicable); railway and unemployment insurance; public liability and property damage insurance;
6
Fcrm 421: Rev. 20190916
7.3
Trac*lrg #l9,6il$l0
health and welfare benefits; bansportration; meals; lodglng and supcMsion. Negotiations for railway labor
or collective bargalning agroements and rate changes authorized by appropriate Federal authorltles may
increase flagging rates. Flagglng rates ln dfect at the time of performance by the flaggers will be used to
calculate the flagglng cosE purguant to thle Sestlon 7.
Licensor, at lts sole discretlon, may elect to deslgnate a thlrd party (the "Schedullng Agenf), to perform
and/or arrange for the performance of the Servlces.
8.
9.
Pavmant Terms. All invoips are due thirty (30) days afler the date of lnvoice. lf Licensee fails to pay any monies
due to Licensor within thirty (30) days afler the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rale equal lo the lesser of (i) the prime rate last published in The Wall
Steet Journal in the preceding December plus turo and one-half percenl(2-1no/ol, or (ii) the maximum rate permitted
by hw.
LICEI{SOR'8 RESERVED RIGHT.S
Reserved Riohts of Uge. Licensorexoepts ard rBserves the right, to be exercised by Licensorand anyother parties
who may obtain written permissbn or aulhorityfrom Licensor:
9.1 to maintiain, use, operate, repair, replace, modify and rglocate any utility, power or communication
pipe/linedcables and appurtenances (other tlun the Elecbic Supdy Line) and other facilities or struclures
of like character upon, over, uMer or across the Premises existing as of the Efiec{ive Date;
to construct, malntain, renew, use, operate, change, modfy and relocate any tracks or additionalfacllitles,
struclures and related appurtenances upon, over, under or across the Premises; or
to use the Premises in any manner as Llcsnsor in ib sole discretlon deoms 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 Sectbn 4 above.
Rioht to Reouire Relocation. lf at any time during he term of this License, Licensor desires the use of ils rail corridor
in such a mannsr as nould, in Llcensor's reasonable opinion, be interfered with by the Electric Supply Llne, Licensee
shall, at its sole exponse, within thirty (30) daW afler receiving written notice ftom Licensor to such effect, make
such changes in the Elec{ric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Llcensor's rail conidor, including, without limitiation, the relocation of the Electlc Supply
Line, or the constnrdbn of a new electric line to replace the Electic Supply Line. Notwithstandlng the foregoing,
Llcensee agrees to make all emergency changes and minor adjustments, as determined by Licensor ln lts sole
discrelion, to the Electric Supply Line promptly upon Licenso/s request.
LICENSEE'S OPERATIONS
11. Construc{ion and Maintenance of the Elecfic Suoolv Line.
11.1 Licensee shall not enter the Premises or commenoe construction unless accompanied by Licensor's
representativo, the Scheduling Agent or its designee. Licensee shall notify Licensods Roadmaster, Mary
Danielson at [e-mail], telephone 206-62$'6880, at least ten (10) buslness dale prior to
installation of the Electric Supply Line and prkr to entering the Premises for any subsequent maintenance
thereon. ln the event of emergency. Licensee shall notlfy Llcensor of Licensee's entry onto the Premlses
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 retairy'maintain a fully executed copy of thls Llcense at all times whle
on the Premises.
While on the Premises, Licensee shall use only public roadways to cross from one side of Licenso/s tracks
to the other.
9.2
9.3
10.
2
11.3
Form 421t Rev. 20190916
11.4
Tracking.#1$63930
Any contradors or subcontractors performing vrrork on the Electric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Li@nsee for purposes of this License.
11.5 Under no cond(ions shall Licensee be permitted to conduct any tests, investigations or any other ac'tivity
using mechanized equipment and/or machinery, or place or store any mechanized equipmenl, tools or other
materials, within twenty-fle (25) feet of the centerline of any railroad track on the Premises unless Licensee
has obtained prior uritten approvalftom Licensq. Licensee shall, at its sole cost and expense, perform all
activities on and about ttre Premises, including without limitation all consbuction and maintenance of the
Elecbic Supply Line, in such a manner ard of srch materlals as not at any time to endanger or interfere
with (i) the existencs or use of present or future lracks, roadbeds, or property of Licensor, (iD th€ safe
operation and activities of Llcensor or existing third parties, or (iii) the rights or interests of hird parties. lf
ordered to cease using the Premises at any tlme by Licensor's personnel due to any hazardous condition,
Llcensee shall lmmedlately do so. Notwithstandlng the foregolng rlght of Licensor, the parties agree that
Llcensor has no duty or obligation to monltor Licensee's use of the Premises to determine the safe nature
thereof, it being solely Licensee's responsibilig to ensure that Licensee's use of the Premises is safe.
Neither the exercise nor the failure by Licensor to exercise any rights granted ln thls Section will alter the
liability allocation provided by this License.
11.6 Licensee shall, at its sole oost and expense, oonstrucl and maintain the Electric Supply Line in such a
manner and of such material that the Elecfh Supply Line will not at any time endanger or interfere wlth (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 thkd parties. The
construction of the Bectric Supdy Line shall be completed within one (1) year of the Effective Dale, and
any subsequent maantenance shall be completed within one (1) year of initiation. Within fifteen (15) days
after completion of the construction of the Electic Supply Line or the performance of any subsequenl
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises lo
substantially their strate as of the Effective Date, unless othenrlse approved in advance by Licensor in
writing. On or before expiratlon or tennination of this License for any reason, Licensee shall, at its sole cost
and expense, surrender the Premlses to Llcensor pursuant to the terms and condltions set forth in Section
24 hereof.
11.7 Licensor may direct ons or more of its field engineers or inspectors to observe or inspect the construction
and/or maintenance of the Electric Supply Line at any time for compliance with the Drawlngs and
Specifications and Legal Requirements (defined below). Licensee shall reimburse Licensor for the cost of
such obseryation or inspection related services pursuant to Section 8. lf ordered at any time to halt
conshuc;tion or maintenance of the Elec{ric Supply Line by Licensor's personnel due to non-compliance
with the Drawlngs and Specifications or any other hazardous condition, Llcensee 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 Llne is constructed and malntained in strict accordance with the Drawings
and Specificatlons and ln a safe and workmanllke manner in compliance with all terms hereof. Neither the
exercise of, nor the failure by Licensor to exercise, any right granted by this Sec-tion will alter in any way
the liability allocation provided by this License. lf at any time Licensee shall, in the sole judgment of
Licensor, fail to properly perform its obligations under this Section 11, Licensor may, at lts option and at
Licensee's sole expense, arange for the performance of such uprk as it deems necessaryfor the safety of
its operations and aclivities. Lbensee shall promptly reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Sec'tion 8. Lbensor's fallure 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 maintrain the Electric Supply Line in
accordance with the National Electric Safety Code.
11.9 lf the operation or maintenanoe of the Electric Supply Line at any time causes interference, lncluding but
not limited to phpical interference from electromagnetic induction, elec-trostratic inductlon, or from stray or
other currents, with the facilities of Licensor or of any lessee or li@nsee of Licensor, or in any manner
interfere with the operation, maintenance, or use by Licensor of its rightof-way, tacks, structures, pole
lines, signal and communication lines, radio, or other equipment, devi@s, other property or appurtenances
thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and fumish such
-3-Form 421; Rev. 2019@'16
12.
TracklrB #1963930
protective devices and/or replaoement equipmont to Licensor and its lessees or licensees as shall be
neceasaryr in the judgment d Licensor's repescntiative, to eliminate such inlerferenc€. The cost of such
proteciive devices and their installations shall be borne solely by Licensee. lf any of the lnterference
covered by 0ris Sec'tlon 11.9 shall be, in the judgment of Licensor, of guch importiance to the safety of
Lioenso/s operations as to require immediate conective ac{ion, Licensae, upon notice fom Llcensor, shall
either, at Llcenso/s election, coase using the Electric Supply Line for any purpose whaboever and remove
eame, or reduce the voltage or load on the Electric Supply Line, or trake such other interim protectlve
measures as Licensor may deem advisaUe, until the protectiv€ devices and/or replacement equlpment
required by this 8ec'tlon ll.9 have been ingtalled, put in operalion, tested, and found to be satlsfactory to
con€d the interference.
11.10 Llcansee shall, at its sole cost and expense, remove all cornbustible material from around rvooden poles
on the Premlses, if any, and will at all tlmes keep the space around such poles fnae of such material, and if
remoral of such combusUble material shall not be attended to with ffieen (15) days afier having been
requested by Litrnsor to do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incuned.
Boring and Excavation.
12J Prior to Licensee oonducting any boring, excavalion, or similarwork on or about any portion of the Premises,
Licensee shallcontacl the applicable State's callierfore-youdig utility locatlon servlce to have 3d parties
mark the location of utilities. Licensee shall explore the proposed location fs such work with hand tools to
a depth of at least three (3) foet below the surface of th6 ground to detarmine whether pipelines or other
structuros exist below the surface, provided, however. that in lieu of the foregoing hand-tool explorataon,
Licersee shall have the right to use suitable detec-tion equipment or other generally accopted lndusfy
practice (e.9., oonsulting with the State lnfrastruc*ure Corporation) to determine the existence or location
of pipelines and other subsurface structures prior to drf,ling or excavating with machanized equlpment.
Llcensee shall request information from Lbensor conceming the existence and approximate location of
Llcenso/s underground lines, utillties, and plpelines at or near the vicinity of the proposed Electic Supp{y
Llne by contadlng Llcensor's Telecommunlcatlons Helpdesk, cunenUy at 1{00-53&2891 (option 1, then
option 7), at least ten (10) buslness days prlor to lnstallatlon of the Electric Supply Line. Upon receiving
Licensee's timely request, Licensor will provide Licensee with the information Licansor has in its possession
regarding any existing underground lines, utilities, and pipelines at or near the vicinity of the proposed
Electric Supply Llne and, if applicable, identifo the location sf such lines on the Premises pursuant to
Licensor's standard procedures. Licensor does not u/arrant the accuracy or completeness of information
relating to subsurface conditions of thE Premises and Limnsee's operations will be subject at all times to
the liability provisions herein.
12.2 For all bores greater than 2Ginch diameter and et a depth less than 10.0 feet below bottom of rail, a soil
lnvestlgation must be performed by Llcensee and reviewed by Licensor prior to construction. This sludy is
to determine if granular material is present, and to prevent subsidence during the installation process. lf
the invesligatlon determlnes ln Llcenso/s reasonable opinlon that granular material is presenl, Lkrensor
may select a new location for Licensee's use, or may require Licensee to fumish for Lioensor's review ard
approval, in Licensor's sole discretion, a remedial plan to dealwilh the granular material. Once Licensor
has approved any such remedial plan in writing, Licensee shall, al Licensee's sole cost and expense, carry
out the approved plan in accordance with all terms thereof and hereof.
12.3 Any open hole, borlng, or well constructed on the Premises by Lioensee 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 levelwfth compacted bentonite grout; or
'12.3.2 othemrise secured or retired in accordarrce with any appli:able Legal Requirement. No excavated
materials may remain on Licensor's property for more than ten (10) dap, but must be properly
disposed of by Licensee in accordance with applicable Legal Requirements.
Form42t:Rev 20190916-4.
Trackirq #19-63CI0
LIABILITY AND INSURANCE
13. Liabilitvandlndemnification.
13.1 For purposes of this License: (a) "lndeinnlteea' means Licensor and Licensor's afiiliated companies,
parfrers, sriooassors, assigns, legal representatives, offi@rs, directors, shareholders, employees, and
agents; (b) "Llabllttics" means allclaims, liabilities, fines, penalties, @sts, damages, losses, liens, caus€s
of aclion, suits, demands, judgments, and expenses (irrcluding, witfiout limitialion, court costs, reasonable
altomeys' fees, costs of investlgalion, removal and remediation, and governmential oversight cosls)
environmental or othenrise; and (c) 'Llcensee Partles" means Licensee and Licensee's o,fficorE, agenE,
inviteas, li@nsees, employees, or contractors, or any paty direcdy or indirectly employed by any of them,
or any p6rty they control or exercise control ovsr.
13,2 TO THE FULLEST EXTENT PER]ilITED BY I-AW, LICEI{SEE SHALL, AND SHALL CAUSE ITS
COilTRACTOR TO, RELEASE, INDE]IINIFY, DEFEND AND HOLD HARXILESS INDETNITEES FOR,
FROItl, AND AGAIi{ST At{Y Al{D ALL LIABILITIES OF AtrlY NATURE, KlilD, OR DESCRIPTION
DTRECTLY OR TNDTRECTLY AR|S|NG OUT OF, RESULTilG FROM, OR RELATED TO 0N WHOLE OR
rN PART):
13.2.1 THIS L|CENSE, |NCLUDING, WTHOUT LtiilTAnON,ITS ENVlROillrEl{TAL PROV|STONS,
13.2.2 ANY RTGHTS OR II{TERESTS GRANTED PURSUAI{TTO THIS LlCEr,lSE
13.2.3 LICEITISEE'S OCCUPATION AND USE OF THE PREilIISES,
13.2.4 THE ENVIROI{MENTAL CONDITION AND STATUS OF THE PREilIISES CAUSED BY OR
CONTRIBUTED TO BY LlCEltlSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMTTED BY LAW LIGENSEE NOW A1{D FOREYER WAIVES, AND
wlLL INDEilINIFY, DEFEND, AND HOLD THE INDEMT{ITEES HARI'LESS FROM ANY AND ALL
CLAITIS THAT BY VIRTUE OF EilTERING INTO THIS LICENSE, LICEI{SOR IS A GENERATOR,
OWNER, OPERATOR, ARRANGER, OR TRAI{SPORTER FOR THE PURPOSES OF THE
COTPREHENSIVE EilVIRONUENTAL RESFONSE, COMPENSATION, AND UABILITY ACT, AS
ATENDEO TCERCLA',) OR OTHER ENV|RONIUIENTAL LAWS (DEFINED BELOW). NOTHTNG tN
THIS LICENSE 18 i'EANT BY EITHER PARW TO CONSTITUTE AYYAIVER OF ANY INDEI'NITEE'S
COilI,lON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT EE SO COTTISTRUED. IF AI{Y
AGENCY OR COURT COilSTRUES TH'S LICENSE TO BE A WAIYER OF ANY II{DEIIITITEE'S
COTMOI{ CARRIER DEFENSES, LICEI{SEE AGREES TO INDEUNIFY, HOLD HARMLESS, AND
DEFET{D INDEITiilITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AI{D LICEI{SEE AS TO USE OF THE PREMISES
AS CONTEiIPLATEO BY THIS UCENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE ENVIRONiIENTAL CONDITION OF THE PRETIIISES.
13.4 IF ANY EUPLOYEE OF ANY LICENgEE PARTY ASSERTS THAT HE OR SHE !S AN EIIIPLOYEE OF
ANY INDEIINITEE, TOTHE FULLEST EXTENT PERTTTTED BY LAW, LICEilSEE SHALL, ATTID SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEIIiNIFY, DEFEND, Al{D HOLD THE INDETINITEES
HARTTLESS FRO| AND AGATNST ANY LTABTLITIES ARTSTNG OUT OF OR RELATED TO (rN WHOLE
oR tN PART) Aity sucH AssERTloN tNcLUDtNG, Blrr NOT LtMlrED TO, ASSERnOilS OF
EMPLOYTUIENT BY AN INDEITINITEE RELATED TO THE FOLLOWING OR ATTIY PROCEEDINGS
THEREUNDER: THE FEDERAL E]TIPLOYERS'LIABILITY ACT, THE SAFEW APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIOHAL SAFETY AilD HEALTH ACT, THE
RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMII.AR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATTONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXHATELY CAUSED BY THE GROSS NEGLIGENCE OR WLLFUL TISCONDUCT OF AITIY
-5,Form 421; Rev. 20190916
Tracklng #19€3930
IIIIDEIINITEE, BUT SHALL APPLYTO ALL OTHER LIABILITIES, INGLUDTNG THOSE ARISING FROII
OR ATTRIBUTED TO At{Y OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIOilAL ACTS, OR
sTRrcI LtABtLtrY OF ANy tNDEttNtTEE.
13.6 Upon written notice from Llcensor, Llcensee agraes to assume the defense of any lawsuit or other
proceeding brought against any lndemnltee by any entity, rela0ng to any matter covered by this License for
whlch Llcensee has an oHlgatlon to assume llabilfi for and/or save and hold harmless any Indemnitee.
Licensee stnllpayallcosts and expenses lncident to such dgfense, induding, but not limited to, reasonable
atlorneys'fees, investigators'fees, litigation and appeal exp€nses, settlement paymenb, and amounts paid
in satisfaclion of judgments.
14.Personal Prooertv Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FDOURES,
EQUlPirEilT, OR RELATED IIATERIALS UPON THE PREITIISES WILL BE ATTHE RISK OF LICENSEE ONLY,
AND ilO INDEMi{ITEE mLL BE LIABLE FOR At'lY DAIIAGE THERETO OR THEFT THEREOF, WHETHER OR
T{OT DUE IN WHOLE OR IN PART TO THE }IEGLIGENCE OF ANY INDEUNITEE.
15.lnsurance. Licensee shall, at its sole cost and sxpgnse, procure and maintain during the term of this Lkpnse the
following insurance q)verage:
15.1 CommerclalGeneral Liabllltv"CGL' lnsurance.
a. The pollcy wlll provlde a minimum of $2,000,000 p6r occunetrce and an aggregate limit of at least
$4,000,000 but ln no event wlllthe coverage be ln an amount less than the amqnt otherwbe canied
by Licensee. Coverage must be purchased on a post 2004 ISO o@u,rence form or equivalent and
include coverage for, but not limiled to, the following:. Bodily lnjury and Property Damage. Personal lnjuryand Advertising lnjury. Fire legalliability. Products and completed operations
' Contrac'tual Liability for an 'lnsured Contract' consistent with the definition under the standard ISO
general liability policy form.
b. The parties agree that the workers'compensation and employers' liabili$ related exclusions in the CGL
pollcy(s) are lntended to apply to employees ot the policyholder and will not apply to Licensor's
employees.
c.No other endorsements that llmlt coverage wlth respect to Licensee's obllgations under this agreement
may be inclded on the policy.
15.2 BusinessAutomobilelnsurance.
a. The insuranoe will provide minimum coverage with a combined single limit of at least $1,000,000 per
accident, and include cowrage for, but not limited to the following:. Bodily injury and property damage.. Any and all vehicles owned, used or hlred.
b. The policy will irrclude the following endorsements or language, which will be indicated on or attached
to the certtficate of insurance:. Waiver of subrogation in favor of and acceptable to Licensor.. Addltional 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 canied by Licensor.
15.3 Wod<ers' Comoensation and Emolovers' Liabilitv lnsurance.
a. The policy wlll provide coverage of all employees performing any part of the work or services
irrcluding coverage for, but not limited to:
6
Form 421: Rev. 20190916
Tracking #1963930
Licensee's statutory liabilfty under the uorkers'compensetion laws of the state(s) in which thework
or services are to be performed. The policy will cover all of Licensee's employees, regardless of
whether such coverage is optional under tlp law of that state(s).
Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease
policy limit, $500,000 by disease each employee.
b. The polby will include contain the follorting endorsements or language, which shall be indicated on or
attached to the certificate of insurance:. Waiver of subrogation in favor of and acceptable lo Licensor.
15.4 Railr$d Proteclive Liabllitv lnsurance. The policy will name only Licensor as the lnsured and wlll provide
coverage of at least $2,000,000 per occurence and $6,000,000 in the aggregate. The coveft€e obtained
under this policy shall only be effective during the initial installation ancUor construction of the Electric Supply
Line. THE COI{STRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COMPLETED WIT}IIiI Ol{E
(1) YEAR OF THE EFFECTIVE DATE. lf further maintenance of the Electic Supply Line is needed at a
later date, an additional Railroad Protectlve Llabillty lnsurance Pollcy shall be required. The policy will be
issued on a standard ISO form CG 00 35 12 U and lncluda the following:. Endorsed to include the Pollution Exclusion Amendment.. Endoreed to include the Limiled Seepage and Pollution Endoreement.. Endorsed to remove any exclusion for punitive damagps.. Endorsed to include Evacuation Expense Coverage Endorsement.. No other endorsements restricting @verage may be added.. Tle original policy must be provided lo Licensor and Licensee shall not perform services or work of any
kind under this agreement until Licensor has reviewed and approved the policy.. The definition of 'Phlaical Damage to Propert/ will be endorsed to read: "means dlrec't and accHental
loss of or damage to all property orned by any named insured and all property in any named insured's
care, custody and contro! (including, but not limited to rolling stock and their contents, mechanlcal
construction eguipment or motive pow6r equipment, railroad backs, roadbeds, catenaries, signals,
lunnels, bridges and buildings) arising out of the acts or omissions of the contractor named on the
Dedarallons.'
ln lieu of providing a Railroad Protective Liability Policy, for a period of one (1) par from the Effective Date,
Licensee may participate in Licenso/s Blanket Railroad Protective Liabllity lnsurance Policy available to
Licensee or its contractor. The limits of coverage ar€ the same as above. The cost is $506.00.
Licensee elects to participate in Licensor's Blanket Policy;
Llcensee declineg to participate in Licenso/s Blanket Polhy
15.5 OtherReouirements.
15.5.1 Where allowable by law, no excluslon for punltive damages may be lncluded in any policy.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. ln addition, Licensee's insurers, through lhe terms of the policy or policy endorsement,
waive their right of subrogalion against Licensor for all claims and sults. Llcensee further waives
its rlght of recovery, and its insurers also waiw their right of subrogation agalnst Licensor for loss
of Licensee's owned or leased property or property under Licensee's care, anstody, or control.
15.5.3 Allocated Loss Expense, irrcludlng but not limited to defense costs and expenses, will be in addition
to all pollcy limlts for coverage under the insurance requirements.
15.5.4 Lbensee is not allorred to self-insure without he prior written @nsent of Licensor. lf Licensor
allows Ucensee to self-insure, Licensee shall directly cover any seJf-insured retention or other
financial responsibility for claims in lieu of insurane,e. Any and all Licensor liabilities that would
othenrise be covered by Licensee's insurance in accordance with lhe provisions of this agreement,
will be covered as if Licensee elected not to include a self-insured retention or other financial
responsibility for claims.
I
o
EI
7
Form 4211Rev. 2019@16
Tracting #1063930
15.5.5 Prior to commencing any servlces or other uork under this agreemenl, Licenseo shall furnish to
Licensor an acceptable certiflcate(s) of insurance from an authorized representatlve evidenclng the
required coverage(s), endorsenrents, and amendments.
15.5.6 Licensee agrees to provide evidence to Licensor that it has the requlred ooverage ln place at least
annually or in the event of a renewal or material change of coverago.
15.5.7 Any insurance poliry shall be written by a reputable insurarce company acceptable to Licensor or
with a cunent Best's GuHe Rating of A- and Class Vll or better, and authodzed to do business in
the statds) in which the service is to be provided.
15.5.8 lf the coverage provided by any of lhe insurance policies required by this agreement is purchased
on a 'daims made' basis, Licensee hereby agrees to malntain coverage in force fur a minimum of
three years after expiralion, cancellation or lermination of this agreement.
15.5.9 Ucensee agnees to provlde evldenoe to Llcensor that lt has the requlred @verage in plae at least
annually or ln the event of a renewal or material change of coverage.
15.5.10 Licensee reprcsents that thb Llcense has been thoroughly reviewed by Liensee's insurance
agent(s/broker(s), and that Liensee has instructed them to Eocur€ the lnsurance @verage
required by this License.
15.5.11 Not more frequenUy than once every five ycare, Lbensor may, at its discretion, reasonably modify
the insurance requirements to reflect the then-cunent risk management practlces ln the r:ailroad
industry and underwriUng prmtices in the insurance industry.
15.5.121f Licensee will subconhact any portion of the operation, Licersee shall require that the
subcontraclor provide and maintain insurance coverage(s) as set forth henein, naming Liconsor as
an additlonal insured. ln addition, Lbensee shall require that the subcontractor shall release,
defend and indemnifr Licensee to the same extent and under the same terms and condilions as
Llcensee is requlred to release, defend and lndemnlfy Ucensor under this agreement.
15.5.13 Failure to provide evidence as required by this section shall entitle, but not require, Licensor to
terminate thls License immediately. Acceptance of a certificate that does not comply with this
section shall not operate as a waiver of Licensee's obligations hereunder.
15.5.14 The fact that Lfurcnsee obtains insurance (including, without limitation, selfinsurance) shall not
release or diminish Li:ensee's liabiliUes or obligations including, without limitation, the liabilities and
obligations under the indemnity provisions of the License. Damages recoverable by Licensor shall
not be limited by tha amount of the required irsurance coverage.
15.5.16 ln the event of a ddm or lawsuft involving Licensor arising out of this agreement, Licensee will
make the policy covering such claims or lav*suits available to Licensor.
15.5.16 lf Licensee maintains broader oovercge andlor higher limits than the minimum requlrements in
this Agreement, Licensor requires and shall be enti0ed to the broader coverage and/or the higher
limits. Any available insurance proceeds in excess of the specified minimum limits of insurarrce
and coverage shall be available to Llcensor.
15,5.17 These insurance provisions are intended to be a separate and distincl obl(lation on the part of the
Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby
regnrdless of whether or not lndemnity provlslons are determined to be enforceable in the
jurisdictlon in which the work or services are performed under this License.
15.5.18 For purposes of this Soction 15, Licensor shall mean "Burlington Northern Santa Fe, LLC', "BNSF
Railway Company' and the subsUiaries, Buccessors, assigns and affiliates of each.
8
Form421: Rev.20190916
Tracl<ing #1963930
COT PLIANCE WTH LAWS. REG ULATIONS. At{D ENVIRON ]TIENTAL MATTERS
16. Comollance wih Laws. Rules. and Reoulations.
16.1 Licensee shall observe and comply with any and all appllcable federal. state, local and tribal Iaws, slatutes,
regulations, ordinances, orders, covenants, restrictiors, or decisions of any court of competent jurisdiction
('Legal Requlrementr") relating to the construction, maintenan@, 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 contracto(s) to comply with all of
Lioensor's applicable safety rules and regulations. Licensee musl ensure that each of its employees,
contraclors, agents or invitees entering upon the Premises completes the safety orientration program at the
Webslte V\rv\il.BNsFcontractor.com'(the 'Safety Orlentatlon") wlthln one lrear prlor to ontering upon the
Premises. Additionally, Licensee musl snsure that each and every employee of Licensee, its contractors,
agents and invitees possess a card certifying completion of the Safety Orientatbn prior to entering upon
the Premises. Licensee must renew (and ensure that its contractors, agents or invitees, as appllcable,
renew) the Safety Orientation annually.
16.3 Licensee shall obtrain on or before the date it or its corrtrac'tor enters the Premises, any aM all additional
rights-of way, easements, licenses and other agreoments relating to the grant of rights and lnterests in
and/or accoss to the Premlees (collectively, the 'Rlghts') and such other rights, licenses, permits,
authorizations, and approvals (including witftod limitation, any naoessary local, state, federal or tribal
authorizations and environmental permits) that are necessary in order to permit Licensee to consbuct,
malntiain, own and operate the Electric Supply Line and otherwise to perform its obligations hereunder in
accordance wih the terms and conditions hereof.
16.4 Licensee shall either require that the initial staled term of each such Rights be for a period that does mt
expire, in accordance with its ordinary terms, prior to the last day of the term of lhls License or, if the initial
stated term of any such Right expires in accordance with its ordinary terms on a date earller than the last
day of the term of this Li:ense, Licensee shall, at its cost, exercise any renewal rights thereunder, or
othenrise acquire such extensions, additions and/or replacements as may be necessary, ln 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 conditisrs of this License, this License
thereby shall automaUcally expire upon such expiration or termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, slate and local environmental Legal Requirements and
regulations in its use of the Premises, induding, but not limited to, the Resource Conservation and Recovery
Act, as ameMed (RCRA), the Clean Water Act, the Oil Pollution Acl, the Hazardous Malerials
Transportation Act, and CERCLA (collectively refened to as the 'Envlronmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as delined by
Environmenlal Laws on the Pramises. Lir:ensee 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 fansport'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 lo Licensor that Licensee is in compliance with the provisions of this Sec'tion 17.2.
17.3 Licensee shall give Licensor immediate notice to Lbensor's Resource Operations Center at [phone]
of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation of
Environmential Laws, or (iii) inspection or inquiry by governmental authorities charged with enforcing
Environmental Laws with respect to Licensee's use of the Premises. Llcensee shall use the best efforts to
promptly respond to any release on, from, or afiecting the Premises. Licensee also shall give Licensor
I Form 421: Rev. 20190916
Tracklng #19$3930
lmmedlate notiee of all measures undartaken on behalf of Licensee to lnves0gate, remediale, respond to
or otherwise qlre such rdease or vlolation.
17.4 lf Lhansor has notioe ftom Licensee or otherwlse d a release or vblation of Envimnmental Laun arlsing ln
eny way wilh resprct to the Electric Supply Llne whlch occurred or may occur during the term of thls
Liosnse, Lhensor may require Licsnsee, at Llcensee's sole dsk and elgense, to take Umely measures to
investigate, remediate, repond to tr othorudse cur€ sucfi release or viohtkrn affeding the Premises or
Lioenso/s right-of-way.
17.5 Ucensoe shall prompUy report to Licansor in writirg any conditions or activities upon the Prcmisee krpwn
to Lioensee which create a risk of harm to persons, property or the environment and shall take whatever
action is necassary to prevent injury to p€Eons, property, or the envlronment arising out of sudr condiUons
or acdivilies; provided, however, that Licensee's reffing to Licensor shall not relieve Liensee of any
oHigation wfiatsoever imposed on it by lhis Licanso. Licens€e shall prompfly respond to Licensor's request
for information regarding said condilions or activitie.
DISGLAITIIER OF YT'ARRAO{TIEs
18. NoWanantlee.
18..I LICENSOR'S DUTIES AT{D WARRANTIEs ARE UI'ITED TO THOSE EXPREESLY STATED IN THIS
LICENSE AI{D SHALL NOT IiICLUDE ANY ITPLIED DUTIES OR ITIPLIED WARRANTIES, NOW OR
IN THE FUTURE T{O REPRESENTATIONS OR WARRAilTIES HAVE BEEI{ UADE BY LEENSOR
OTHER THATTI THOSE COI{TAII{ED IN THIS LICENSE. LICENSEE HEREBY WAIVES Af{Y AND ALL
WARRANNES, EXPRESS OR II'PLIED, WTH RESPEGT TO THE PRETIISES OR WHICH IIAY EXIET
BY OPERATION OF LAW OR IN EQUITY,IilCLUDING, WM{OUT LI'TTATIoN, AilYWARRANTY OF
TIERCHANTABILITY, HABITABILTTY OR FITNESS FOR A PARNCULAR PURPOSE.
18,2 LrcEilSOR IiAKES NO WARRANW, REPRESENTANOil OR COND]TION OF AI{Y KIND, EXPRESS
OR lfilPUED, CONCERI{ING (A} THE SCOPE OF THE LICEilSE OR OTHER RTGHTS GRANTED
HEREUT{DER TO LICENSEE OR (B} WHETHER OR NOT UCENSEE'S CONSTRUCTTON,
UANTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LtilE wtLL
VIOTATE OR INFRINGE UPON THE RIGHTS, INTERESTS AilD ESTATES OF THIRD PARTIES,
INCLUDING, WITHOUT LIMITATIOil, ANY LEASES, USE RIG}ITS, EAISEMEI{TS AND LIENS OF AI{Y
THIRD PARW.
19 Disclaimer of Wanantvfor Qulet Eniovment. LICENSOR DOES NOT WARRAT{T IfS TffLE TO THE PREillSES
ilOR UNDERTAIG TO DEFEND LICENSEE IN THE PEACEABLE POSSESSK)N OR USE THEREOF. NO
GOVENANT OF QUIET ENJOYMENT ls MADE.
2A. Eviction at Risk of Licensee. ln case of the evictbn of Licensee by anyone ownlng, claiming tiUe to, or claiming any
interest in the Prsmises, or by the abandonment by Liensor of the affec{ed rallcorritlor, Licensor shall not be liable
(l) to refund Licensee any compensation paid hereunder, except fror the pro{ata part of any recuning charge paid
in advance, or (ii) for any damages or costs Lkryrsee sustains in connection with the evlc{ion.
LIET{S AITID TA)(ES
21. Liens and Charoes. Licensee shall promptly pay and dlscharge any and all liens arising out of any construction,
alterations or repals done, sufiered or permitted to be done by Llcensee on the Premises. Licensor is hereby
authorized lo post any notices or take any other action upon or with respect to the Premises that is or may be
permitted by law to prevent the attachment of any such liene to the Premises; provided, however, that failure of
Li<rnsor to trake any such action shall not relieve Licensee of any obligation or liabllity urder this Sec{lon 2l or any
other Sectlon of this License.
Taxes. Licensee shall pay when due any tiaxes, assessments or othef charges (collectively, "Tarea') levied or
assessed by any governmental or quasigovemmental body upon the Electric Supply Une or any other
improvements construcled or installed on the Premisss by or for Licensee (colleclively, the'lmprovements") or
any Taxes levied or assessed against Licensor or the Pnemis€s that are attrlbutable to the lmprovements.
- to - Form 421: Rev.201900'16
22
Tracking #19-63830
DEFAULT. TERTIIINATION. AN D SURRENDER
23. Default and Termination. ln addition to and not in limitation of Lioenso/s tighl to terminate for failure to pmvide
evidence of insurance as required pursuant to the terms of Socilon 15, the followlng events are also deemed to be
events of default pureuant to which Licensor has the rlght to terminate as set forth below:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in thh Lbense
and Llcensee fails to cure said default within thirty (3t)) days after written notlce ls pmvid,ed to Licensee by
Licensor, or in case of any assignmenl or transfer of this Llcense in violation of Sec'tion 26 below, Licensor
may, at its opticn, terminate this Lir:ense by sewing five (5) days' notice ln wriUng upon Licensee.
Notwisrstanding the foregoing, Licensor shall trave the right to terminate this License immediately if
Licensee fails to provlde evldence of insurance as required in Sectlon 15.
23.2 Should Licensee not comply fully with the obtigations of Secilon 17 regarding the handllng or transporting
of hazardous waste or hazardous material, notwithstranding anything contalned in any other provision of
this Llcense, Licensor may, at its option, terminate thls License by serving five (5) days' notlce of termlnation
upon Licensee,
23.3 Any waiver by Llcensor of any default or defaults shall not corutitute a vvaiver of the right to termlnate thls
License for any subsequent default or defaults, nor shall any such waiver in any way affec't Lieansor's ability
to enforce any Section of this License. The remedkts set forth ln this Sectbn 23 shall be in addition to,
and not in limitation of, any other rcmedies that Llcensor may have at law or in equity.
23.4 ln addition to and not in limitation of Licensor's rights to terminate thls Llcense for failurs to provide evidence
of insurarrce or occurr€noe of defaults as described above, this Lbense may be terminated by either party,
at any time, by serving thirty (30) dayrs'uritten notice of termination upon the other party. Such termination
shall not release either party hereto from any liability or obligation under the Llcense, whether of indemnity
or othenrise, resultirB 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
tormination hereof.
24. Surrender of the Premlses.
24.1 On or bofore expiration or terminatlon of this Llcense for any reason, Li€nsee shall, at its sole cost and
expense:
24.1.1 if so directed by Licensor in uniting, remove the lmprovem€nts, 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 Lbensor;
24.1.2 report and restore any damage to the Premises or Licensor's other property arising from, grorring
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
24.2
24.1.4 leave the Premises in subslantially the condition which existed as of the Effective Date or as
otherwise agreed to by Licensor.
Upon any expiralion or terminalion of this License, if Licensee fails to sunender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration Obllgdions").
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 sunendered and the Restoration Obligations are completed.
Neilher termination nor expiration shall release Llcensee from any liabllity or obligation under this License,
whelher of indemnity or otherwise, resulting from any acts, omisslons or events happening prior to the date
of termination, or, if later, the date when Licensee surrenders the Premlses and all of the Restoration
Obligations are completed.
Frm 421: Rev. 20190916
- 11-
25.
fi.
Tracking #1933S0
24.3 lf Ucensee fails to complete the Restoration Obllgations within thirty (30) days after the dale of sucfr
termination of its tenancy, then Licaneor may, at its elec,tion, either: (i) remove the Eloctric Supply Line and
the other lmprwements or otherwis€ restore the Remises, and in such event Licensee shall, within thirty
(30) days afler receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notirx to
Liconsee, take and hold the Elecfic Supply Line and the other lmprovements and personal pmperty as its
sole property, wilhout paymenl or oblQatbn to Licensee lherefor, or (ill) specifkally enforoe Licensee's
obtigation to reslore and/or pursue any remedy at law or in equity against Licensee for failure to so restore.
Furlher, lf Llcensor has consented to the Elec-fic Supply Line and the other lmprovements remaining on
the Premises following terminatbn, Licensee shall, upon request by Licensor, provide a bill of sale in a form
acceptable to Licensor convaying the Electric Supply Line and the other lmprovements to Lir:ensor for no
additional consideration.
HISCELI.ANEOUS
Successors and Asslqns. All provlslons contained in this License shall be binding upon, inure to the beneflt of, and
be enforceable by the respectlve suooessors and ass(;ns of Licensor and Licensee to the same extent as lf each
such suocessor and asslgn was named a party to this License.
Assionment.
26J Licensee may not sell, assign, transfer, or hlryothecate thb License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or othenrise) without the prior written consent of
Licensor, wtrich consent may not be unreasonably wtthheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Secllon 26 shall be a breach of this License and, in addition,
shall be voidable by Liensor in its sole and absolute discretion.
26.2 For purposes of this Seclion 26, the word 'assign" shall include without limitation (a) any sale of the equrty
interesls of Licensee following which the equity interesl holders of Licensee immediately prior to such sale
own, directly or indirectly, less han 5006 of the combined voting porirer of the outstandlng voting equity
interests of Lioensee, (b) any sale of all or substrantblly all of the assets of (i) Licensee and (li) to the extent
such entities exist, Llcensee's parent and subsidiaries, laken as a whole, or (c) any reorganlzation,
recapitralization, merger or consolldatlon lnvolMng Llcensee. Notwithstanding the foregolng, any
reorganization, recapitallzation, merger or consolidation folloring which the equity interest holders of
Licensee immediately prior to such reorgBnization, recapltallzallon, merg€r or consolidation own, direclly
or indirectly, at least 500/6 of the combined voting pourer of the outstanding voting equity interests of
Licensee or any suocessor thereto or the entity resulting from such reorganlzation, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE LAND
WITHOUT THE EXPRESS WRTTTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Sec'tion 26.1 above or anything contained in this License to the conbary,
lf Licensee sells, assigns, transfers, or hypothecates this License or any interesl herein in contravention of
the provisions of lhis Llcense (a 'Purported Asslgnment') to another party (a 'Purpoiled Transferee'),
the Purported Transferes's enjoynent of the rlghts 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
Ucense, including but not limited to the obligation to comply r rith the provisions of Sectlon 15 above
conceming insurance requirements. ln addition lo and not in limitation of the foregoing, Licensee, for itself,
its successors and assigns, shall indemnify, defend and hold harmless Licensor for all Liabllities of any
nature, kind or description of any person or entity direcUy or indirectly arising ort of, resulting from or related
to (in whole or in part) a Purported Assignment. The provisions of this Sectlon 26.3 shall survive the
expiration or earller termination of this License.
26.4 Licensor shall have the rlght to transfer and assign, in whole or part, all of its rights and obligations under
this License, and upon any such transfer or assignment, Licensor shall be released from any further
oblQations hereunder and Licensee agre,es to look solely to the successor in interest of Licensor for the
performance of such obligations.
- 12-
Form 421; Rev.20190916
27
Tracking #19$930
Nolices. Any nolice, invoice, or other writing requlred or permitted to be glven hereunder by one party to the other
shall be in wriling and the same shall be given and shall be deemed to have been served and given if (i) daced in
the United States mail, certified, retum receipt requested, or (ii) deposited into the custody of a nationally recognized
ovrnight delivery service, address€d to the party to be notified at the address for such party specined below, or to
such other address as the party to bs notified may designate by giving lhe other party no less than thirty (30) days'
advance writlen notice o,f such change in address.
lf to Licensor Jones Lang LaSalle Brokerage, lnc.
4200 Br.rckingham Rd., Suite 110
FortWorth, TX 76155
Attn: Permib/Licenses
wlth a copy to:BNSF RailwayCompany
2301 Lou Menk Dr., GOB-3W
FortWorth, TX 76131
Ath: Senior Manager Real Estate
lf to Licensee:PaciliCorp
825 NE Mulhomah Street, Suite 1700
Portland, OR 97232Attn: Rlghtof-WayDept.
Survival. Neither terminatbn nor expiration will release either party from any llability or obligalion under this Llcense,
whether of indemnity or otherwise, resulting from any acts, omisslons or events happening prior to the date of
termination or expiration, or, if later, the date when the Electric Supply Llne and the other lmprovements are
removed and the Restoralion Obligations are completed in accordance with the terms hereof.
Recordation. lt is understood and agreed that thb License shall not be plaoed or allowed to be placed on public
record.
Aoolicable Layy. All questions concerning lhe interpretation or application of provlslons of this Lbense shall be
decided according to the substanlive laun of the State of Texas without regard to conflicts of law provisions.
Severabilitv. To the maxlmum extent possible, each provision of this License shall be interpreted in such manner
as to be effective and valld under appllcable law, but if any provision of this License shall be prohlbited by, or held
to be invalid under, appllcable law, such provision shall be ineffec{ive solely to the extenl of such prohlbition or
invalidity, and this shall nol lnvalidate the remalnder of such provlslon or any other provision of this License.
lnleoration. This License is the full arrd complete agreement between Licensor and Licensee with respec-t to all
matters relating to Licensee's use of the Premises, and supersedes any and all other agreoments between lhe
parties hereto relating to Licensee's use of he Premises as described herein. Hotrsver, nothing herein is intended
to terminate any surviving obligalion of Licensee or Licensee's obligation to defend and hold Licensor harmless in
any prior unitten agreement between the partbs.
Jolnt and Several Llablllty. lf Llcensee consisls of two or more parties, all the covenants and agreements of
Licensee herein contalned shall be the Joint and several covenants and agreements of such parties.
Waiver. The waiver by Licensor of the breach of any provision hereln by Licensee shall in no rwy impair the right
of Licensor lo enforce that provision for any subsequent breach thereof.
lnteroretation.
35.1 This License shall be interpreted in a neutral manner, and not more stronglyfor or agalnst any party based
upon lhe source of the draflsmanship; both parties hereby agree that this License shall not be subject to
the princlple that a contsact would be construed against the party which drafted the same. Artlcle titles,
headings to sections and paragraphs and the table of conlents (if any) are inserled for convenlence of
reference only and are not intended to be a part or to affect the meaning or interpretation hereof. The
28.
29.
30.
31.
33.
34.
35.
32
_13-Form 421; Rev.20190916
TnackltB #19{0930
exhlblt or exhiblts refened to hereln shall bo construed wilh and as an integral part of this License b tho
same extent as lf they were set forth verbatlm hereln.
35.2 As ueed herein, 'includs', 'indldes'and "lncludlng" aro deemsd to be followed by'\rithout limitation'
whelher or not they are ln fac-t folloumd by auch uprde or words of like import; Avriting', \nitten" and
comparable brms refer to prlntlng, typlng, llthography and other means of reproducing worde in a vbible
form; referencss lo any parson are also to that person'6 sucoeBoora and permitted assigns; Trereof,
'hersln', 'hereundef and comparable terms refer to the entlrety tpreof and not to any partiarlar article,
sec,tion, or othar suMivbion hereof or attrachment hereto; references to any gender include referenoes to
the mascruline or feminine c the context requkes; referenoes to the plural include the singular and vice
versa; and rderences to this License or other documents are as amended, modilied or supplemented from
time to lime.
36.Countemarts. This Lioense may be executed in multiple counterparB, eac+r of wtrich shall, for all purposas, be
deemed an or(yinal bul wtrich together shall constitute one and the same lnstrument, and th6 signature pages from
any counlerpart may be appended to any other counterpart to assemble fully executed documents, and counterparts
of this Llcense may also be exchanged elecbonlcally and any electronic version of any party's signature shall be
deemed to be an original signatura for dl purposes.
Ucenso/s Reoresentatlve. Jones Lang LaSalle Brokerage, lnc. is acting as representaUve for BNSF Railway
Company.
37
EiID OF PAGE - SIG}IATURE PAGE FOLLOWS
-14-
Fqrn 421: R6v. 2019Og16
Traddng#t9{3S0
This Llcanso tns ben duly exeorbd bythe parths hereto * of the Efiec{lve Dats.
UGE[!9S:
BI{SF Relhrey Compeny, a Delaware oorporatlon
By: Jonee Lang LaSalle Brckerage, lnc.
4200 BuckirUham Road, Sulb 110
FortWorh, TX 76155
LICE]ISEE:
PadflGorp, an Oregon oorporation
t5
Form421; Ror.20190910
COORDINATE SYSTEM: WA S
EXHIBIT "A"
ATTACHED TO CONTRACT BETUVEEN
BNSF RAILWAY COMPANY
AND
N
il
d
APACIFICORP
1lN=200FT ,III
SECTIONDIVTO\AJNSHIP & RANGE:
BDIV,
S. 0048 MP: 93.94 II,
MERIDIAN:
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EXISTING OH ELECTRIC LI}IE
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CNES/Airbus DS, USDA, USGS, AeroGRlD. rdhi. dndlrt'e GtS User
Communily
NOTE:
1-6" PVC OCCUPIED CONDUIT W/
3 ELECTRIC wlRES
O VACANT
DESCRIPTION OF WIRES UNDER RIGHT.OF.WAY
WRES LOCATEDAS SHOIAA BOLD
TYPE
NUMBER OF CONDUITS
VOLTAGE
ELECTRIC SIZE OF CONDUIT
CONDUIT MATERIAL
WALL THICKNESS
LENGTH ON RA^'
DEPTH BENEATH
NATURAL GROUNO
6"
PVC
0.280"
1 51'.
'I
NOTE: CONDUIT TO BE INSTALLED BY TRENCH
-*4'SELAH
COUNTY OF YAKIMA JNC
12500
STATE OF WA
TRACKING NO. 19{3930
hlgolq
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REVISION 1 DRAWNG NO.76777
1
Tracking #1964085
(Electric Light, Power Supply, lnespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective _. 20_ (the
"Effective Date') by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Llcensor") and PAGIFICORP,
an Oregon corporation ("Licensee").
ln consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAT
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 Speclficatlons"), an electric supply line containing a maximum of four (4) conductors, together with its
supporting or containing structures (collectively, the "Electric Supply Line"), across oralong Licensor's rail corridor
at or near the station of Wapato, County of Yakima, State of Washington, Line Segment 0048, Mile Post 75.34 as
shown on the attached Drawing No.76966, dated December 27,2019, attached hereto as Exhlblt "A" and
incorporated herein by reference (the "Premlses").
@. This License shall commen@ on the Effective Date and shall continue for a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
Existino lmorovements. 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.
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.
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
License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Five Thousand Two Hundred Fifty
Three and No/100 Dollars ($5,253.00) as compensation for the use of the Premises.
Costs and Exoenses.
7.1 For the purpose of this License, ncost" 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 incuned 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 incuned, inspection coordination, safety, mobilization
and/or other observation services described in this License (collectively, the "Servicos"). Licensee shall
bear the cost of the Services 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 dap and holidays (as applicable); vacation allowance; paid holidays
2.
3.
4.
5.
6.
7.
Fom 421; Rev.20190916
8.
Tracking #1944085
(as applicable); railway and unemployment 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.
7.3 Licensor, at its sole discretion, may elect to designate a third party (the "Scheduling Agent"), to perform
and/or arange for the performance of the Services.
Pavment Terms. All invoices are due thirty (30) days after the date of invoice. lf Licensee fails to pay any monies
due to Licensor within thirty (30) daya 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
Steet Journal in the preceding December plus two and one-half percent (2-1l2%), or (ii) the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
Reserved Riohts of Use. Licensor excepts 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 facilities or structures
of like characler 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.RiohttoReouireRelocation. lfatanytimeduringthetermofthisLicense,Licensordesirestheuseofitsrailconidor
in such a manner as would, in Licenso/s reasonable opinion, be interfered with by the Electric Supply Line, Licensee
shall, at its sole expense, within thirty (30) dap 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 conidor, 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. 9onstruction and Maintenance of the Electric Suoolv Line.
11.'l Licensee shall not enter the Premises or commence construction unless accompanied by Licensor's
representative, the Scheduling Agent or its designee. Licensee shall notify Licenso/s Roadmaster, Mary
Danielson at [e-mail], telephone 20G'62$.6880, 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. ln 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.
Form 421:' Rev. 20190916
9.
2
Tracking #1944085
'11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks
to the other.
1',t.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.
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 olher
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, including without limitation all construction and maintenance of the
Electric Supply Line, in such a manner and of such materials 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. lf
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.
1't.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 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. 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 ffieen (15) da1a
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 othenrise 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 Sectlon
24 hereof.
11,7 Licensor may direct one or more of its field engineers or inspectors 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). Licensee shall reimburse Licensor for the cost of
such observation or inspection related services pursuant to Section 8, lf 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 liability allocation provided by this License. lf at any time Licensee shall, in the sole judgment of
Licensor, fail to properly perform its obligations under this Section 11, Licensor may, at its option and at
Licensee's sole expense, arrange for the performance of such work as it deems necessaryfor the safety of
its operations and activities. Licensee shall prompUy reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Section 8. Licenso/s failure to perform any obligations of Licensee shall
not alter the liability allocation hereunder.
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,
3
1't.8
Form 421: Rev.20190916
Tracking #1964085
11.9 lf 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 cunents, 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
neoessary, in the judgment of Licensor's representative, to eliminate such interference. The cost of such
protective devices and their installations shall be borne solely by Licensee. lf any of the interference
covered by this Sectlon ll.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediate conective 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 ll.9 have been instralled, 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 afler having been
requested by Licensor to do so, Licensorshallhave the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incurred.
12. Borino and Excavatl
12.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any portion of the Premises,
Licensee shall contact the applicable State's call-before.youdig utility location service to have 3d parties
mark the location of utilities. 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, orovided. however. that in lieu of the foregoing hand-toolexploration,
Licensee shall have the right to use suitable detection equipment or other generally accepted industry
practice (e.9., consulting with the State lnfrastructure Corporation) to determine the existence or location
of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment.
Licensee shall request information from Licensor concerning the existence and approximate location of
Licenso/s underground lines, utilities, and pipelines at or near the vicinity of the proposed Electric Supply
Line by contracting Licensor's Telecommunications Helpdesk, cunently at 1{00-533-2891 (option 1, then
option 7), at least ten (10) business days prior b 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, utilities, 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 wanant the accuracy or completeness of information
relating to subsudace 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. lf
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, cafiy
out the approved plan in accordance with allterms thereof and hereof.
12.3 Anyopen hole, boring, or wellconstructed on the Premises by Licensee shall be safelycovered 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:
Form421; Rev.20190916
4
Tracking #19€4085
12.3.1 filled in to sunounding ground levelwith compacted bentonite grout; or
12.3.2 othenrise 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. Liabilitv and lndemnification.
13.1 For purposes of this License: (a) 'lndemnitess" means Licensor and Licenso/s affiliated @mpanies,
parlners, successors, assigns, legal representatives, officers, directors, shareholders, employees, and
agents; (b) "Llabilities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable
aftorneys' fees, costs of investigation, removal and remediation, and governmental oversight costs)
environmental or othenrise; and (c) "Llcensee Partles" means Licensee and Licensee's ofiicerE, 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 lTS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND A}.ID HOLD HARi'LESS INDEMN]TEES FOR,
FROM, AND AGAINST AI{Y AT{D ALL LIABILITIES OF ANY NATURE, KIND, OR DESCRIPTION
DIRECTLY OR tNDtRECTLy AR|S|NG OUT OF, RESULTTNG FROM, OR RELATED TO (lN WHOLE OR
rN PART):
13.2.1 THIS LICENSE, INCLUDING, W]THOUT L!]IIITATION, lTS 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
19.2.5 ANYACTOROMTSSION OF ANY LICENSEE PARW.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, AITD
WILL INDEUNIFY, DEFEND, AND HOLD THE INDEMN]TEES HARilILESS FROM 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, AT{D LIABILITY ACT, AS
AMENDED ("CERCLA") OR OTHER ENVTRONMENTAL LAWS (DEFINED BELOW). NOTHING rN
THIS LTCENSE !S ltiEANT BY EITHER PARTY TO CONSTTTUTE A WAIVER OF ANY INDEMNITEES
COMMON GARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. !F ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARilILESS, AJ{D
DEFEND INDEMN]TEES FOR ATTIY 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 ENVIRONiIENTAL CONDITION OF THE PRE]UISES.
IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF
ANY INDEMN]TEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AT{D SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMN]TEES
HARMLESS FROM Ar{D AGATNST ANy LIABILITIES ARTSING OUT OF OR RELATED TO (lN WHOLE
5
13.4
Form 42'l: Rev. 20190916
14.
15.
Tracking #19{4085
oR tN PART) ANY SUGfl ASSERTTON |NCLUD|NG, BUT NOT LtitlTED TO, ASSERTTONS OF
Ei,IPLOYMENT BY AN INDEilIN]TEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EMPLOYERS'LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE
LOCOMOTME INSPECTION ACT, THE OCCUPATIONAL SAFETY AltlD HEALTH ACT, THE
RESOURCE CONSERVATION AND RECOVERY ACT, AND A,IIY SIMII.AR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXftIATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL IUTSCONDUCT OF AITIY
INDEilINITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROM
OR ATTRtsUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LIABILITY OF At{Y INDETINITEE.
13.6 Upon unitten notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding bruryht against any lndemnitee by any entity, relating to any matter covered by this License for
which Licensee has an obligation to assume liability for and/or save and hold harmless any 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 Prooertv Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FDOURES,
EQUIPilIENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEi,INITEE WILL BE LIABLE FOR ANY DAi'AGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR !N PARTTOTHE NEGLIGENCE OF AI{Y INDEMN]TEE.
lnsurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of this License the
following insurance coverage:
15.1 CommercialGeneralLiabilitv'CGL' lnsurance,
a. The policy will provide a minimum of $2,000,000 per occunence and an aggregate limit of at least
$4,000,000 but in no event will the coverage be in an amount less than the amount othenruise canied
by Licensee. Coverage must be purchased on a post 2004 ISO oocurrence form or equivalent and
include ooverage for, but not limited to, the following:. Bodily lnjury and Property Damage. Personal lnjury and Advertising lnjury. Fire legalliability. Products and completed operations. Contractual Liability for an "lnsured Contract' consistent with the definition under the standard ISO
general liability policy form.
b. The parties agree that the workers' compensation and employers'liability related exclusions in the CGL
polic(s) are intended to apply to employees of the policyholder and will not apply to Licenso/s
employees,
c. No otherendorsements that limit ooverage with respect to Licensee's obligations under this agreement
may be included on the policy.
15.2 BusinessAutomobile lnsurance.
a. The insurance will provide minimum coverage with a combined single limit of at least $1,000,000 per
accident, and include coverage for, but not limited to the following:. Bodily injury and property damage.. Any and all vehicles owned, used or hired.
6
Form 421: Rev. 20190916
Tracking #19-64085
b. The policy will include the following endorsements or language, which will be indicated on or attached
to 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+ontributing with respect to any insurance carried by Licensor.
15.3 Workers' Comoensation and Emolovers' Liabilitv lnsurance.
a. The policy will provide coverage of all employees performing any part of the work or services
including @verage for, but not limited to:, Licensee's statutory liability under the workers' compensation laws of the state(s) in which the work
or services are to be performed. The policy will cover all of Licensee's employees, regardless of
whether such coverage is optional under the law of that state(s)., 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.
b. The policy will include contain the fotlowing endorsements or language, which shall be indicated on or
attached to the certificate of insurance:
' Waiver of subrogation in favor of and acceptable to Licensor.
15.4 Railroad Protective Liabilitv lnsurance. The policy will name only Licensor as the lnsured and will provide
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 coNsTRt CTION OF THE ELECTRIC SUPPLY LINE SHALL BE COMPLETED WITHIN ONE
(f ) YEAR OF THE EFFECTIVE DATE. lf further maintenance of the Electric Supply Line is needed at a
later date, an additional Railroad Protective Liability lnsurance Policy shall be required. The policy will be
issued on a standard lSO form CG 00 35 12 04 and include the following:. Endorsed to include the Pollution Exclusion Amendment.. Endorsed to include the Limited Seepage and Pollution Endorsement.. Endorsed to remove any exclusion for punitive damages.. Endorsed to include Evacuation Expense Coverage Endorsement.. No other endorsements restricting coverage may be added.. The original policy must be provided to Licensor and Licensee shall not perform services or work of any
kind under this agreement until Licensor has reviewed and approved the policy.. The definition of Physical Damage to Property'' will 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 (including, but not limited to rolling stock and their contents, mechanical
construction equipment or motive power equipment, railroad tracks, roadbeds, catenaries, signals,
tunnels, bridges and buildings) arising out of the acts or omissions of the contractor named on the
Declarations."
ln 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 lnsurance Policy available to
Licensee or its contractor. The limits of coverage are the same as above. The cost is $506.00.
Licensee elects to participate in Licensor's Blanket Policy
Licensee declines to participate in Licensor's Blanket Policy.
15.5 OtherReouirements.
15.5.1 Where allowable by law, no exclusion for punitive damages may be included in any policy.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. !n addition, Licensee's insurers, through the terms of the policy or policy endorsement,
tr
a
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Fom 421: Rev. 20190916
Tracking #19-erc85
waive their right of subrogation against Licensor for all claims and suits. Licensee further waives
its right of recovery, and its insurers 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 Allocated Loss Expense, including but not limited to defense costs and expenses, will be in addition
to all policy limits for coverage under the insurance requirements.
'15.5.4 Licensee is not allowed to self-insure without the prior written consent of Licensor. lf Licensor
allows Licensee to self-insure, Licensee shall directly oover any self-insured retention or other
financial responsibility for claims in lieu of insurance. Any and all Licensor liabilities that would
othenrise be covered by Licensee's insurance in accordance with the provisions of this agreement,
will be covered as if Licensee elected not to include a setf-insured retention or other financial
responsibility for claims.
15.5.5 Prior to commencing any services or other work under this agreement, Licensee shall furnish to
Licensor an acceptable certificate(s) of insurance from an authorized representative evidencing the
required coverage(s), endorsements, and amendments.
'15.5.6 Licensee agrees to provide evidence to Licensor that it has the required coverage in place at least
annually or in the event of a renewal or material change of coverage.
15.5.7 Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or
with a cunent Best's Guide Rating of A- and Class Vll or better, and authorized to do business in
the state(s) in which the service is to be provided.
15.5.8 lf the coverage provided by any of the insurance policies required by this agreement is purchased
on a "claims made" basis, Licensee hereby agrees to maintain coverage in force for a minimum of
three years after expiration, cancellation or termination of this agreement.
15.5.9 Licensee agrees to provide evidence to Licensor that it has the required coverage in place at least
annually or in the event of a renewal or material change of coverage.
15.5.10 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance
agent(s)/broker(s), and that Licensee has instructed them to procure the insurance coverage
required by this License.
15,5,11 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modify
the insurance requirements to reflect the then+unent risk management practices in the railroad
industry and underwriting practices in the insurance industry.
15.5.121f Licensee will subcontract any portion of the operation, Licensee shall require that the
subcontractor provide and maintain insurance coverage(s) as set forth herein, naming Licensor as
an additional insured. In addition, Licensee shall require that the subcontractor shall release,
defend and indemnify Licensee to the same extent and under the same terms and conditions as
Licensee is required to release, defend and indemniff Licensor under this agreement.
15.5.13 Failure to provide evidence as required by this section 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.
15.5.14 The fact that Licensee obtains insurance (including, without limitation, self-insurance) shall not
release or diminish Licensee's liabilities or obligations including, without limitation, the liabilities and
obligations under the indemnity provisions of the License. Damages recoverable by Licensor shall
not be limited by the amount of the required insurance ooverage.
Form 421; Rev.20190916
I
Tracking #19-64085
15.5.16 ln the event of a claim or lawsuit involving Licensor arising out of this agreement, Licensee will
make the policy covering such claims or lawsuits available to Licensor.
15.5.16 lf Licensee maintains broader coverage and/or higher limits than the minimum requirements in
this Agreement, Licensor requires and shall be entitled to the broader coverage and/or the higher
limits. Any available insurance proceeds in excess of the specified minimum limits of insurance
and coverage shall be available to Licensor.
15.5.17 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 in the
jurisdiction in which the work or services are performed under this License.
15.5.18 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC', 'BNSF
Railway Compan/' and the subsidiaries, successors, assigns and affiliates of each.
COMPLTANCE WITH LAWS. REGULATIONS. AND ENVIRONMENTAL MATTERS
16. Comoliance with Laws. Rules. and Reoulations.
16.1 Licensee shall observe and comply with any and all applicable federal, state, local and tribal laws, statutes,
regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction
("Legal Requirements") relating to the constuction, 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 contracto(s) to comply with all of
Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees,
confactors, agents or invitees entering upon the Premises completes the safety orientation program at the
Website "www.BNSFcontractor.com" (the 'Safety Orientation") within one )rear prior to entering upon the
Premises. Additionally, Licensee must ensure that each and evey 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 (and ensure that its contractors, agents or invitees, as applicable,
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 neoessary in order to permit Licensee to construct,
maintain, own and operate the Eleclric Supply Line and othenrise 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 oder 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 automaticatly expire upon such expiration or termination of the Right.
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Form 421: Rev. 20190916
Tracking #19{4085
17, Environmentral.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, hrt not limited to, tre Resource Conservation and Recovery
Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act tre 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 substrances' may now or in he future be defined by any federal, state,
or local govemmental agency or body on the Premises. Licensee agrees periodically to furnish Licensor
with proot 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 [phone]
of any known (i) release of hazardous substiances on, from, or affecting the Premises, (ii) violation of
Environmental Laws, or (iii) inspection or inquiry by governmental authorities charged witr enforcing
Environmential Laws wih respect to Licensee's use of the Premises. Licensee shrall use tre 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 othenrise cure such release or violation.
17.4 lf Licensor has notice from Licensee or otheruise of a release or violation of Environmental Laws arising in
any way with respect to he Electric Supply Line which occurred or may occur during he term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to tiake timely measures to
investigate, remediate, respond to or ohenrise cure such release or violation affecting the Premises or
Licenso/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 tre 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 ttis License. Licensee shall promptly respond to Licensor's request
for information regarding said conditions or activities.
DISCLAIMER OF WARRAITITIES
18. No Warranties.
18.1 LICENSORS DUTIES ATIID WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTTES OR IMPLIED WARRAI{TIES, NOW OR
IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR
OTHERTHAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRATTITIES, EXPRESS OR Ii,IPLIED, WTH RESPECT TO THE PREMISES OR WHICH MAY EXIST
BY OPERATION OF LAW OR IN ECUITY, INCLUDING, WTHOUT LIMITATION, AITY WARRATTTY OF
MERCHAI{TABILITY, HABITABILITY OR F]TNESS FOR A PARTICULAR PURPOSE.
LICENSOR MAI(ES NO WARRANTY, REPRESENTATION OR CONDITION OF AI{Y KIND, EXPRESS
oR !MPL!ED, CONCERNING (A) THE SCOPE OF THE LTCENSE OR OTHER RtcHTS GRANTED
HEREUNDER TO LTCENSEE OR (B) WHETHER OR NOT LTCENSEE',S CONSTRUCTTON,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WILL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLT'DING, WITHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AiID LIENS OF AAIY
THIRD PARTY.
18.2
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Form 421; Rerr. 20190916
20
Tracking #1964085
't9 Oisctaimer otWarran LICENSORDOES NOT WARRANT ffSTlTLE TOTHE PREMISES
NOR UNDERTAIG TO DEFEND LICENSEE !N THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT !S [I'IADE.
Eviction at Risk of Licensee. ln 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 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 damages or costs Licensee sustains in connection with the eviction.
LIENS ANDTAXES
21. Liens and Charoes. 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 the Premises. Licensor is hereby
authorized to post any notices or take any other action upon or with respect to the Premises that is or may be
permitted by law to prevent the attachment of any such liens to the Premises; provirJed, however, that failure of
Licensor to take any such action shall not relieve Licensee of any oblpation or liability under this Sec-tion 21 or any
other Section of this License.
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 "lmprcvements") or
any Taxes levied or assessed against Licensor or the Premises that are attributable to the lmprovements.
pEFAULT. TERM|NATIONT AND SURRENDER
Default and Termination. ln addition to and not in limitation of Licensor's r(;ht 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 setforth below:
23.1 lf default shall be made h 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 Sectlon 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 remedies 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 ln addition to and not in limitation of Licensor's rights to terminate this License for failure to provide evidence
of insurarrce 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 othenMse, 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.
22
23
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Form 421: Rev. 20190916
Tracking #1964085
24. Sunender 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.'l if so directed by Licensor in writing, remove the lmprovements, 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 ftom, growing
out ol 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 or as
othenrise agreed to by Licensor.
24.2 Upon any expiration or termination of this License, if Licensee fails to sunender the Premises to Licensor
or if Licensee fails to complete its obligations under Sec{ion 24.1 above (the "Restoration Obligations"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessaryfor 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,
wtrether of indemnity or othenrise, resulting from any rcts, 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 lf 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 Hectric Supply Line and
the other lmprovements or othenrise 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 Bectric Supply Line and the other lmprovements 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 lmprovements 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 lmprovements to Licensor for no
additional consideration.
MISCELLAI{EOUS
25.Successors and Assions. 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.
m. Assionment.
26Jl 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 othenruise) 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 Sec{ion 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 Sec{ion 26, the word 'assign" shall include without limitation (a) any sale of the equi$
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
-12-
Form 421; Rev. 20190916
27
Tracking #19-64085
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, dhectly
or indirectly, at least 50o/o 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 UCENSE SHALL NOT RUN WITH THE LAIID
WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LI CENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the @ntrary,
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 "Purpoiled 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. ln additbn 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. The provisions of this Sectlon 26.3 shall survive the
expiration or earlier termination of this License.
26.4 Licensor shall have the right to transfer and assign, in whole or part, all of its rights and obligations under
this License, and upon any such transfer or assignment, Licensor shall be released from any further
obligations hereunder and Licensee agrees to look solely to the successor in interest of Licensor for the
performance of such obligations.
Notices. Any notice, invoice, or otherwriting 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 custodyof 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) dap'
advance written notice of such change in address.
lf to Licensor:Jones Lang LaSalle Brokerage, lnc
4200 Buckingham Rd., Suite 110
Fort Worth, TX 76155
Attn: Permits/Licenses
with a copy to:BNSF Railway Company
2301 Lou Menk Dr., GOB-3W
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
lf to Licensee PacifiCorp
825 NE Multnomah Street, Suite 1700
Portland, OR 97232Attn: Right of Way Department
Survival. NeitherterminationnorexpirationwillreleaseeitherpartyfromanyliabilityorobligationunderthisLicense,
whether of indemnity or othenrise, 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 lmprovements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
28.
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Form 421; Rev. 20190916
32.
29.
30.
31.
33.
34,
35.
Tr*king #1964085
Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
Aoolicable 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.
Severabilitv. To the maximum extent possible, each provision of this License shall be interpreted h such manner
as to be effective and valid under applit:able law, but if any provision of tris 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 sucfr provision or any other provision of this License.
lnteoration. This License is the full and complete agreement between Licensor and Licensee with respect to all
matters relatirB 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.
Joint and Several Liabilitv. lf 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 sucfr parties,
Waiver. The waiver by Licensor of the breach of any provision herein by Licensee shall in m way impair the right
of Licensor to enforce that provision for any subsequent breach thereof.
lnlerpretalien
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based
upon the souroe 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 wtrich 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 mt intended to be a part or to affect he meaning or interpretation hereof. The
exhibit or exhibits refened 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 persm are also to that person's successors and permitted assigns; 'hereof',
"herein", "hereunder" and comparable terms refer to he 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.
Counteroarts. This License may be executed in multiple counterparts, each of wtrictr 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 electronically and any electronic version of any party's signature shall be
deemed to be an original signature for all purposes.
Licensor's Reoresentative. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF Railway
Company.
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Form 421; Rev. 20190916
36.
37
Tracking #19{4085
This License has been duly executed by tre parties hereto as of the Effective Date.
LrsIsoR:
BNSF Rallway Gorpany, a Delaware corporation
By:Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Road, Suite 110
FortWorth, TX 76155
I,.tcENSEE:
PadflCorp, an Oregon corporation
By:
Title:
Date:
By:
Title:
Date:
15
Form 421t Rev.20190916
COORDINATE SYSTEM: WA S
EXHIBIT ''A"
ATTACHED TO COT.ITRACT BET\A'E E N
BNSF RAILWAY COMPANY
AiID
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UBDIV TOWNSHIP & RANGE:
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DATE:1212712019 MERIDIAN:W
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263'TOTAL LENGTH OH ELECTRIC
DESCRIPTION OF WIRES OVER TRACK
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TYPE
ELECTRIC 4/O AL
NUMEER VOLTAGE
12.sKV
DISTANCE AEOVE
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REVISIONl DRAWNG NO.76966
2.
3.
Tracking #19-64402
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERW
(Electric Light, Power Supply, lnespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("Llcenee") is made to be effective 2019 (rhe
"Effectlve Date") by and between BNSF RAILWAY COttiPANY, a Delaware corporation ("Llcanaor") and Rocky
Mountain Power, ('Licensee').
ln consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
Grant of License. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and
estates of third parties, including, wilhout limilation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, lo construct and maintain, in strict accordance
with the drawings and specifications approved by Licensor as part of Licensee's application prooess (the'Drawlngs
and Specifications"), an electric supply line containing a maximum of two (2) existing and four (4) new conductors,
together with its supporting or containing structures (collectively, the "Electrlc Supply Llne'), across or along
Licensor's rail corridor al or near the station of Bill, County of Converse, State of WY, Line Segmant 0186, Mile Post
84.91 as shown on the attached Drawing No. 77323, dated December 9, 2019, attached hereto as !5[!!!!f, and
incorporated herein by roference (the'Premieee").
Term. This License shall commenoe on the Effective Date and shallcontinue for a period of twenty-five (25) years,
subiect to prior termination as hereinafter described.
Existino lmorovements. 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.
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 Specificalions. Licensee shall not use the Premises for any other
purpose.
Alterations. Except as set forlh 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
License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thousand Eight Hundred
and Eighty Eight and No/100 Dollars ($3,888.00) as compensation for the use of the Premises.
7. Costs and Exoenses
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 Sectlon I below) for all costs and
expenses incuned by Licensor in connection with Licensee's use of the Premises or the presence,
construction and maintenance of the Electric Supply Line, including bul not limited to the furnishing of
Licensor's flaggers and any vehicle renlal cosls incurred, inspection coordination, safety, mobilization
and/or other observalion services described in this License (collectively, the "Services"). Licensee shall
bear the cost of the Services when deemed necessary by Licensor's representative. Flagging costs shall
include. but not be limited to, lhe following: pay tor at least an eight (8) hour basic day with time and one-
half or double time for overtime, rest days and holidays (as applicable); vacalion alloruance; paid holidays
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Form 421: Rov. 20'190916
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(as applicable); railway and unemployment insurance; public liability and property damage insurance;
haalth and welfare benefits; transportaton; 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 efiect at the time of performance by the flaggers will be used to
calculate the flagging cosls pursuant to this Sectlon 7.
7.3 Licensor, at is sole discretion, may elect to designate a third party (the "Schaduling Agent'), to perform
and/or anange for the performance of the Services.
Pavment Terms. All invoices are due thirty (30) dap after the date of invoice. lf Licensee fails to pay any monies
due to Licensor within thirty (30) darc after the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rate equal lo lhe lesser of (i) the prime rate last published in The Walt
Strcet Journal in the preceding Oecember plus tulo and one-half percent (2-1X2%), or (ii) the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
Reserved Riohts of Use. Licensor excepts 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 utllity. power or communication
pipe/lines/cables and appurtenances (other than the Electric Supply Line) and other facilities or structures
of like character upon, over, under or across the Premises existing as of the Efiective Date;
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 appropriale, provided Licensor
uses all commercially reasonable efforts to avoid material interference with the use of the Premises by
Licensee for the purpose specified in Sec-tlon 4 above.
10.Rioht to Reouire Relocalion. lf 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 Electrlc Supply Line, Licensee
shall, at its sole expense, within thirty (30) days after receiving writen noticr 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 Eleclric Supply Line. Notwithstanding the foregoing,
Licensee agrees to make all emergency changes and minor adjustments, as determined by Licensor in its sole
discretion, to lhe Electric Supply Line promptly upon Licensor's request.
LICENSEE'S OPERANONS
11. Construction and Maintenance of the Electric Suoolv Line.
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by Licensor's
representalive, the Scheduling Agent or its designee. Licensee shall notify Licensor's Roadmaster, at
[e-mail] or 307-331-2814, al least ten (10) business days prior to installation of the
Electric Supply Line and prior to entering the Premises for any subsequent maintenance thereon. !n 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.
1'1.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while
on the Premises.
9.2
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Form 42't: Rev. 20190916
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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 Eleclric Supply Line or entering lhe Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
11.5 Under no conditions shall Licensee be permifted to conduct any tests, investigations or any other activity
usirg 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 approvalfrom Licensor. Licensee shall, at its sole cost and expense, perform all
activilies on and about the Premises, including without limitation all construction and maintenance of the
Electric Supply Line, in such a manner and of such materials as not at any time lo endanger or interfere
with (i) the existence or use of present or future tracks, roadbeds, or property of Lkrensor, (ii) the safe
operation ard activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. lf
ordered to c€ase 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 Lbensor, 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 future tracks. roadbeds, or property of Licensor, (ii) the safe operation
and ac{ivilies 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 othenvise 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 oonditions set forth in Sectlon
24 hereof.
11.7 Licensor may direct one or more of its field engineers or inspectors to observe or inspect the construction
and/or maintenance of the Electric Supply Line al any time for compliance with the Drawings and
Specifications and Legal Requirements (defined below). Licensee shall reimburse Licensor for the cost of
such observation or inspection related services pursuant to Section 8. lf 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 Eleclric 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 liability allocation provided by this License. lf at any time Licensee shall, in the sole judgment of
Licensor, failto properly perform its obligations under this Section 11, Licensor may, at its option and al
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.
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.
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11.8
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11.9 lf 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 fmm 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, struclures, 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 fumish such
protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be
neoessary, in lhe judgment of Licensor's representative, to eliminate such interference. The cost of such
protective devices and their installations shall be borne solely by Licensee. lf any of the interference
covered by this Sectlon 11.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediale corrective action, Licensee, upon notice from Licensor, shall
either, at Licenso/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 proteclive devices and/or replacement equipment
required by this Ssc{ion ll.9 have been installed, put in operalion, tested, and found to be satisfactory to
correct the interference.
11.10 Licensee shall, at its sole cost and expense, remove allcombustible materialfrom 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.
12. Borino and Excavation.
'12.1 Prior to Licensee conducting any boring, excavalion, or similar work on or about any portion of the Premises,
Licensee shall contact the applicable State's call-before-youdig utility location service to have 3d parties
mark the location of utilities. Licensee shall explore the proposed location for such work with hand tools lo
a depth of at least three (3) feet belor the surface of the ground to determine whether pipelines or other
struclures exist below the surf*e, orovided, however, that in lieu of the foregoing hand-tool exploration,
Licensee shall have the right to use suitable detection equipment or other generally accepted industry
practice (e.9., consulting with the Stale lnfrastructure Corporation) to delermine the existence or location
of pipelines and other subsurface struclures prior to drilling or excavating with mechanized equipment.
Licensee shall 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, currently at 1-800-533-2891 (option 1, then
option 7), at least ten (10) 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, utilities, and pipelines at or near the vicinity of the proposed
Electric Supply Line and, if applicaUe, identify the location of such lines on the Premises pursuant to
Licensor's standard procedures. Licensor does not wanant 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 grealer than 26-inch diameter and at a deplh 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. lf
the investigation determines in Lie,ensor's reasonable opinion lhat granular material is present, Licensor
may selecl 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 malerial. 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 construc'ted on lhe Premises by Licensee shall be:
Form 421: Rev.20190916
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Tracking #19€4402
12.3.1 filled in to sunounding 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, bul must be properly
disposed of by Licensee in accordance with applicable Legal Requirements.
LIABIL]TY AND INSURANCE
13. Liabilitvandlndemnification.
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) "Llabllltios" means all claims, liabilities, fines, penalties, cosls, damages, losses, liens. causes
of action, suits, demands, judgments, and expenses (including, without limitation, courl costs, reasonable
attorneys' fees, costs of investigation, removal and remediation, and governmental oversight costs)
environmenlal or othenryise; and (c) "Licensee Partlee" means Licensee and Licensee's officers, agents,
invitees, licensees, employees, or contractors, or any party direcUy or indirectly emplopd by any of them,
or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMTTTED BY LAW, LICET.ISEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNTFY, DEFEND AND HOLD HARMLESS INDEilIN]TEES FOR,
FROM, AND AGAIT{ST ANY AND ALL LIABILTTIES OF ANY NATURE, KINO, OR DESCRIPTION
DIRECTLY OR INDTRECTLY ARTSING OUT OF, RESULTING FROM, OR RELATEDTO (tN WHOLE OR
rN 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 ENVIRONT'IENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICE}'ISEE PARTY
13.3 TO THE FULLEST EXTENT PERMITTED BY LAVI', LICENSEE NOW AND FOREVER WAIVES, AND
WILL INDE]UNIFY, DEFEND, AND HOLD THE INDEiINITEES HARI'LESS FROM ANY AND ALL
CLAIMS THAT BY VIRTUE OF Ei{TERING INTO THIS LICENSE, LICENSOR IS A GENERATOR,
OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF THE
CO}TPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, ANO LIABILITY ACT, AS
AMENDED ('CERCLA") OR OTHER ENVTRONMENTAL LAWS (DEF|NED BELOW). NOTHTNG !N
THIS LIGENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES AND THIS LICENSE SHOULO NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S
COMTIION CARR.ER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND INDEMNITEES FOR ANY LIABIL]TIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREM]SES
AS CONTETUIPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
13.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF
ANY INDEMNITEE, TOTHE FULLEST EXTENT PERMITED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM AND AGAINST ANY L|ABIL|T|ES ARIS|NG OUT OF OR RELATED TO (tN WHOLE
F orm 421', Rev. 201 9091 6
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15.
Tracking #19-GA4O2
oR tN PART) ANY SUCH ASSERTTON INCLUD|NG, BUT NOT LIMITED TO, ASSERTIONS OF
EiJIPLOYMENT BY AN INDEi'ilITEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EIIPLOYERS' LIABILITY ACT, THE SAFETY APPLIANCE AGT, THE
LOCOMOTTYE NSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE
RESOURCE CONSERVATIOTT AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
13,5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILTIES
ARE PROXITIIATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL iIISGONDUCT OF ANY
II{DEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LIABILTTY OF ANY INDEiINITEE.
13.6 Upon writlen notirx from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any lndemnitee by any entity, relating to any matter covered by this License for
which Licensee has an obligation to assume liability for and/or save and hold harmless any lndemnitee.
Licensee shall pay all costs and expenses incident to such defense, including, but not limited to, reasonable
attomeys'fees, investigators'fees, litigation and appeal expenses, settlement payments, and amounts paid
in satisfaction of judgments.
Personal Prooertv Risk of Loss. ALL PERSONAL PROPERW, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED TIATERIALS UPON THE PREiIISES WILL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDETNITEE WILL BE LIABLE FOR ANY DAiIAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR IN PART TO THE NEGLIGEI{CE OF ANY INDET'N]TEE.
lnsurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of this Lic€nse the
following insura nce coverage:
15.1 CommercialGeneral Liabilitv'CGL" lnsurance.
a. The policy will provide a minimum of $2,000,000 per occunence and an aggregate limit of at least
$4.000,000 but in no event will the coverage be in an amount less than the amolnt otherwise canied by
Licensee. Coverage must be purchased on a post 2004 ISO occunence form or equivalent and include
coverage for. but not limited to, the following:
a.. Bodily lnJury and Property Damage. Personal lnjury and Advertising lnjury. Fire legalliability. Products and completed operationsr Contractual Liability for an "lnsured Contract" consistent with the definition under the standard ISO
general liability policy form.
b. The parties agree that the workers'compensation and employers' liability related exclusions in the CGL
policy(s) are intended to apply to employees of the policyholder and will not apply to Licensor's
employees.
c. No other endorsements that limit coverage with respect to Licensee's obligations under this agreement
may be included on the policy.
'15.2 BusinessAutomobilelnsurance.
a. The insurance will provide minimum coverage with a combined single limit of at least $1,000,000 per
accident, and include coverage for, but not limited to the following:
' Bodily injury and property damage.. Any and all vehicles owned, used or hired.
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b. The policy will include the following endorsements or language, wtrich will be indicated on or attached
to the certificale 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-conlributing with respect to any insurance canied by Licensor.
15.3 Workers'Comoensationand Emolorrers'Liabilitvlnsurance.
a. The policy will provide coverage of all employees performing any part of the work or Eervices
induding coverage for. but not limited to:. Lhensee's statutory liability under the workers' compensation laws of the state(s) in which the work
or services are to be performed. The policy will cover all of Licensee's employees, regardless of
whether such coverage is optional under the law of that state(s).. 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.
b. The policy will include contain the following endorsements or language, which shall be indicated on or
attached to the certificate of insurance:. Waiver of subrogation in favor of and acceptable to Licensor.
15.4 Railroad Protective Liabilitv lnsurance. The policy will name only Licensor as he lnsured and will provide
coverage of at least $2,000,000 per oocurrence and $6,000,000 in the aggregate. The coverage obtained
under this policy shallonly be effective during the initial installation and/or construction of the Electric Supply
Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COTIPLETED WITHIN OltlE
(f ) YEAR OF THE EFFECTIVE DATE. lf further maintenance of the Electric Supply Line is needed at a
later date, an additional Railroad Protective Liability lnsurance Policy shall be required. The policy will be
issued on a standard ISO form CG 00 35 12 04 and include the following:. Endorsed to include the Pollution Excluslon Amendment.. Endorsed to include the Limited Seepage and Pollution Endorsement.. Endorsed to remove any exclusion for punitive damages.. Endorsed to include Evacuation Expense Coverage Endorsement.. No other endorsements restricting coverage may be added.. The original policy must be provided lo Licensor and Licensee shall nol perform services or work of any
kind under this agreement until Licensor has reviewed and approved the poliry.. The definition of 'Physical Damage to Propert/ will be endorsed to read: "means direc't and accidental
loss of or damage to all property owned by any named insured and all property in any named insured's
care, cuslody and control (including, but not limited to rolling stock and their contents. mechanical
construction equipment or motive power equipment, railroad tracks, roadbeds, catenaries, signals,
tunnels, bridges and buildings) arising out of the acts or omissions of the contractor named on the
Declarations."
ln lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year fmm the Effective Date,
Licensee may participate in Licensor's Blanket Railroad Protective Liability lnsurance Policy available to
Licensee or its enntractor. The limits of coverage are the same as above. The cost is $506.00.
o Licensee elects to participate in Licensor's Blanket Policy;
15.5
o Licensee declines to participate in Licensor's Blanket Policy
Other Reouirements.
15.5.1 Where allowable by law, no exclusion for punitive damages may be included in any policy.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. ln addition, Licensee's insurers, through the terms of the policy or policy endorsement,
waive their right of subrogation against Licensor for all claims and suits. Licensee further waives
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Form 421: Rev. 20190916
Tracking #19{140,2
its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss
of Licensee's owned or leased property or property under License€'s care, clslody, or contrd.
15.5.3 Allocated Loss Expense, including but not limited to defense cosls and expenses, will be in addition
to all policy limits for ooverage under the insurance requirements.
15.5.4 Licensee is not allowed to self-insure without the prior writlen consent of Licensor. lf Licensor
allours Licensee to self-insure, Licensee shall directly oover any self-insured retention or other
financial responsibility for claims in lieu of insurance. Any and all Licansor liabilities that would
othenrise be covered by Licensee's insurance in accordance with the provisions of this agreement,
will be covered as if Licensee elected not to include a self-insured retention or other flnancial
responsibility for daims.
'15.5.5 Prior to commencing any services or other uork under this agreement, Licensee shallfurnish to
Licensor an acceptable certificate(s) of insurance from an authorized representative evidencing the
required coverage(s), endorsements, and amendments.
15.5.6 Licensee agrees to provide evidence to Licensor that it has the required coverage in place at least
annually or in the event of a renewal or material change of coverage.
15.5.7 Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or
with a cunent Best's Guide Raling of A- and Class Vll or better, and authorized to do business in
the state(s) in which the servioe is to be provided.
15.5.8 lf the coverage provided by any of the insurance policies required by this agreement is purchased
on a "claims made" basis, Licensee hereby agrees to maintain coverage in force for a minimum of
three years after expiration, cancellation or termination of this agreement.
15.5.9 Licensee agrecs to provide evidence to Licensor that it has the required coverage in place at least
annually or in the event of a renewal or material change of coverage.
15.5.10 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance
agenl(s/broke(s), and that Licensee has instruc'ted them to procure the insurance coverage
required by this License.
15.5.11 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modify
the insurance requirements to reflect the then-cunent risk management practbes in the railroad
industry and undenrriting practices in the insurance industry.
15.5.121f Licensee will subcontract any portion of the operation, Licensee shall require that the
subcontractor provide and maintain insurance coverage(s) as set forth herein, naming Licensor as
an additional insured. ln addition, Licensee shall require that the subcontractor shall release,
defend and indemnffy Licensee to the same extent and under the same terms and conditions as
Licensee is required to release, defend and indemnify Licensor under this agreement.
15.5.13 Failure to provide evidence as required by this section shall entitle, but nol 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,
15.5.14The fact that Licensee obtains insurance (including, wilhout limitation, self-insurance) shall not
release or diminish Licensee's liabilities or obligations including, without limitation, the liabilities and
oblig tions under the indemnity provisions of the License. Damages recoverable by Licensor shall
not be limited by the amount of the required insurance coverage.
15.5.16 ln the event of a claim or lawsuit involving Licensor arising out of this agreement, Licensee will
make the policy covering such claims or lawsuits available to Licensor.
I
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15.5.16 lf Licensee maintains broader coverage and/or higher limits than the minimum requirements in
lhis Agreement, Licensor requires and shall be entitled to the broader @verage andlor the higher
limils. Any available insurance proceeds in excess of the specified minimum limits of insurance
and coverage shall be available to Licensor.
1 5.5.1 7 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 wtrether or not indemnity provisions are determined to be enforceable in the
jurisdiction in which the work or services are performed under this License.
15.5.18 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.
COI,IPLIANCE WITH LAW$. REGULATIONS. AND ENVIRONTENTAL MATTERS
16. Comoliance with Laws. Rules. and Reoulations
16.1 Licensee shall observe and comply with any and all applicable federal, state, local and tribal 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 Electric Supply Line and
the use of the Premises.
'16.2 Prior to entering the Premises, Licensee shall and shall cause its contracto(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 Orlentatlon") within one year prior to entering upon the
Premises. Additionally, Licensee musl ensure that each and every employee of Licensee, its contractors,
agents and invilees possess a card certifying completion of the Safety Orientation prior to entering upon
the Premises. Licensee must renew (and ensure that its contraclors, agents or invitees, as applicable,
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,
authorizalions, and approvals (including without limitation, any necessary local, state, federal or tribal
authorizations and environmental permits) that are neoessary in order lo permit Licensee to construct,
maintain, own and operate the Electric Supply Line and othenrise 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 Righl expires in accordance with its ordinary terms on a date earlier than the last
day of the term of this License, Licensee shall, al its cost, exercise any renewal rights thereunder, or
otherwise acguire 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, stale 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
Form 421: Rev.20190916
I
Tracking *19-6/402
Transportation Act, and CERCLA (collectively referred lo as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposalfacility, or underground storage tank, as defined by
Environmental Laws on lhe 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 lransport "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 Sectlon't7.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Cenler at [phone]
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
Environmenlal 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 invesligate, remediate, respond to
or otherwise cure such release or violation.
17.4 lf Licensor has notice from Licensee or othenrise of a release or violalion 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 othenrise cure such release or violation affecting the Premises or
Licensor's rightof-way.
17.5 Licensee shall promptly report to Licensor in uniting any conditions or aclivities 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 condilions
or activitiesi 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 aclivities.
DISCLAIMER OF WARRANTIES
18. No Wananties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND SHALL NOT INCLUDE ANY Ii'PLIED DUTIES OR IMPLIED WARRANTIES, NOW OR
IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN iIADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPEGT TO THE PREMISES OR WHICH MAY EXIST
BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANW OF
MERCHANTABILIW, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANW, REPRESENTATION OR CONDITION OF ANY KINO, EXPRESS
oR lMpLrED, CONCERNTNG (A) THE SCOPE OF THE LTCENSE OR OTHER RtcHTS GRANTED
HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LTCENSEE',S CONSTRUCTTON,
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 PARW.
Disclaimer of Warrantv for Quiet Eniovment. LICENSOR DOES NOT WARRANT ITS T]TLE TO THE PREMISES
NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS MADE.
19
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Form 421: Rev. 20190916
Tracking #1944402
20.Eviction at Risk of Licensee. ln case of the eviction of Licensee by anyone owning, daiming title to, or claiming any
interest in the Premises, or by the abandonment by Licensor of the affected rail conidor, Licensor shall not be liable
(i) to refund Licensee any compensation paid hereunder, excepl for the pro+ata part d any recuning charge paid
in advance, or (ii) for any damages or costs Licensee sustains in connection with the eviction.
LIENS AND TN(ES
21. Liens and Charoes. Licensee shall promptly pay and discharge any and all liens arising out of any construction,
alleratkrns or repairs done, sufiered or permitted to be done by Licensee on the Premises. Licensor is hereby
authorized to post any nolices or take any other action upon or with respect to the Premises that is or may be
permitted by law to prevent the attachment of any such liens to lhe Premises; provided, however, that failure of
Licensor to take any such aclion 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, 'Taxo8") levied or
assessed by any governmental or quasi-governmental body upon the Electric Supply Line or any other
improvemenls constructed or installed on the Premises by or for Licensee (collectively, the *lmprovements") or
any Taxes levied or assessed against Licensor or the Premises that are attributable to the lmprovements.
DEFAULT. TERT'INATION. AND SURRENDER
23. Default and Termination. ln addition to and not in limitation of Licensor's right to terminate for failure to provide
evidence of insurance as required pursuanl to the terms of Section 15, lhe following events are also deemed to be
events of default pursuanl to which Licensor has the right to terminate as set forth below:
23.1 lf default shall be made in any of Licenseie's covenants, agreements, or obligations contained in this License
and Licensae fails to cure said default within thirty (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignmenl or transfer of this License in violation of Sac{ion 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
23.3
Should Licensee not comply fully with the obligations of Section 't7 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' nolice of termination
upon Licensee.
Any waiver by Licensor of any default or defaults shall nol 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 remedies set forth in this Sectlon 23 shall be in addition to,
and not in limitation of, any other remedies that Licensor may have al law or in equity.
23.4 ln 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, lhis 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
terminalion 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:
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Form 42'l : Rev. 20190916
Tracking #19-64402
24.1.1 if so directed by Licensor in writing, remove the lmprovements, the Electrb Supply Line and all
appurtenances thereto, or, at the sole discretion of Licensor, appropriately decommission the
Electric Supply Line with a method satisfac-tory 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 or as
otherwise agreed to by Licensor.
24.2 Upon any expiration or termination of this License, if Licensee fails to sunender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration Obllgatlons"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee
to complete the Restoralion Obligations, and all liabilities and obligations of Licensee hereunder shall
continue in effect until the Premises are sunendered 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 othenrise, resulting from any acts, omissions or events happening prior to the date
of termination, or, if later, the date when Licensee sunenders the Premises and all of the Resloration
Obligations are completed.
24,3 lf Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such
termination of its tenancy, then Licensor may, at its election, either: (i) remove the Electric Supply Line and
the other lmprovements or otherwise restore the Premises, and in such event Licensee shall, within thirty
(30) <rays afler receipt of bill therefor, reimburse Licensor for cost incuned, (ii) upon written notice to
Licensee, take and hold the Electric Supply Line and the other lmprovemenls and personal property as its
sole property, without payment or obligation to Licensee therefor, or (iii) specifically enforce Licensee's
obligation to reslore and/or pursue any remedy at law or in equity against Licensee for failure lo so restore.
Further, if Licensor has consented to the Electric Supply Line and the other lmprovemenls remaining on
the Premises following termination, Licensee shall, upon request by Licensor, provide a bill of sale in a form
acceptable to Licensor convelng the Electric Supply Line and the other lmprovements to Licensor for no
additional consideration.
MISCELLANEOUS
Successors and Assions. All provisions contained in this License shall be binding upon, inure to the benefit of, and
be enforceable by the respective succ,essors and assigns of Licensor and Licensee to the same extent as if each
such successor and assign was named a parly to this License.
Assionment.
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 otheruise) 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,
shallbe voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Sectlon 26, the word "assign' shall include without limitation (a)any sale of the equity
interests of Licensee following which the equity inlerest 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 lhe extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganizalion,
recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Lbensee immediately prior to such reorganization, recapitalization. merg€r or consolidation own, directly
25.
26.
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Form 421: Rev.20190916
27
Tracking #1964402
or indireotly, at least 50% of the combined voting power of the outstranding voting equity inlerests of
Licensee or any sucoessor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidalion shall not be deemed an assignment. THIS LICENSE SHALT 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 Sectlon 26.'l above or any{hing contained in this License to lhe contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any inlerest herein in conlravention 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
conceming insurance requirements, ln 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
nalure, kind or description of any person or entity directly or indirectly arising out of, resulting ftom or related
to (in whole or in part) a Purported Assignment. The provisions of this Sectlon 26.3 shall survive the
expiration or earlier termination of this License.
26.4 Licensor shall have the right to transfar and assign, in whole or part, all of its rights and obligations under
this License, and upon any such transfer or assignment, Licensor shall be released from any further
obligations hereunder and Licensee agrees to look solely to the successor in interest of Licensor for the
performance of such obligations.
Notices. Any notice, invoice, or other wriling 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 r€cognized
overnight delivery seryice, 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) dap'
advance written notice of such change in address.
lf to Licensor:Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Rd., Suite 110
Fort Worth, TX 76155
Attn: Permits/Licenses
with a copy to:BNSF Railway Company
2301 Lou Menk Dr., GOB-3W
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
lf to Licensee:Rocky Mountain Power
835 Smy,lie Rd.
Douglas, WY 82633
Sgrvival. Neither termination nor expiration will release either party from any liability or obligation under this License.
whether of indemnity or othenrise, 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 lmprovements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
Recordalion. lt is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
Aoolicable 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.
Severabilitv. To the maximum extent possible, each provision of this License shall be interpreted in such manner
28.
29.
30.
31.
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Form 421: Rev.20190916
33.
34.
35.
Tracking #19$4402
as to be effective and valid under applicable law, bnt 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 Inteoration. This License is tha full and complete agreement between Licensor and Licensee with respect lo all
matters relating lo 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 lpld Licensor harmless in
any prior written agreement between the parties.
Joint and Several Liabilitv. lf Licensee consists of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreemenls of such parties.
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.
lnteroretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based
upon the souroe of the draftsmanship; both parties hereby agree that this License shall not be subject to
the principle that a contracl 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 interpretalion 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 "wilhout limitation"
whether or not they are in facl 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 lo that person's successors and permitted assigns; "hersof',
"herein", 'hereunder' and comparable lerms refer to the enlirety 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.Counteroarts. This License may be executed in mulUple 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 electronically and any electronic version of any party's signature shall be
deemed to be an original signature for all purposes.
37 Licensor's Reoresentative. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF Railway
Company.
END OF PAGE - SIGNATURE PAGE FOLLOWS
.14-
Form 421: Rev.2019O916
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