20210628Notice of Affiliate Transaction.pdf

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Jvrc 28,2021
Idaho Public Utilities Commission
I l33l West Chinden Boulevard
Building 8 Suite 20lA
Boise, Idaho 837 14-1021
Attention:JanNoriyuki
Commission Secretary
PacifiCorp Notice of Affiliate Transaction
Case No. PAC-E-05-8
Dear Ms. Noriyuki:
Ptnsuant to Commitnentl l7(2), incorporated in the Idaho Public Utilities Commission
OrderNo. 29973, issued February 13,2006, as supplemented by Order No. 29998 March 14,
2006, in the above-referenced proceeding, approving the acquisition of PacifiCorp by
MidAmerican Energy Holdings Company (now Berkshire Hathaway Energy Company or BHE),
PacifiCorp hereby provides notice of an affiliated 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 six (6) agreements titled License for Electric Supply Line
Across or Along Railway Property (the "Licenses"). The Licenses are noted by their hacking
numbers as follows:
Tracking No. 20-66429 will allow PacifiCorp to consffuct and maintain an electric supply
line containing a maximum of five (5) existing conductors, together wittr its supporting or
containing strucfures, across or along Licensor's rail corridor at or near the station of
Albany, County of Linn, State of Oregon, Line Segment0457 and,0457, Mile Post 96.62
to 96.73.
Tracking No. 20-66957 will allow PacifiCorp to construct and maintain an electic supply
line containing a maximum of three conductors, together with its supporting or
containing structures across or along BNSF's rail corridor at or near the station of Bend,
County of Deschutes, State of Oregon, Line Segment 0054, Mile Post 2
Tracking No. 20-67039 will allow PacifiCorp to construct and maintain an electric supply
line containing a maximum of four (4) conductors, together with its supporting or
containing structures across or along BNSF's rail corridor at or near the station of
Klamath Falls, County of Klamath, State of Oregon, Line Segment 0639, Mile Post 1.55.
Re:
a
a
Enclosures
Tracking No. 20-67041 will allow PacifiCorp to construct and maintain an electric supply
line containing a maximum of three (3) conductors, together with its supporting or
containing structures across or along BNSF's rail corridor at or near the station of
Klamath Falls, County of Klamath, State of Oregon, Line Segment 0639, Mile Post 1.55.
Tracking No. 20-67043 will allow PacifiCorp to constuct and maintain an elecfiic supply
line containing a maximum of three (3) conductors, together with its supporting or
containing structures across or along BNSF's rail corridor at or near the station of
Klamath Falls, County of Klamath, State of Oregon, Line Segment 0640, Mile Post 0.97.
o Tracking No. 20-67044 will allow PacifiCorp to constuct and maintain an electric supply
line containing a maximum of three (3) conductors, together with its supporting or
containing structures across or along BNSF's rail corridor at or near the station of
Klamath Falls, County of Klamath, State of Oregon, Line Segment 0640, Mle Post 0.98.
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 Hathaway currently holds a majority interest in BNSF Railway. Therefore, Berkshire
Hathaway's ownership interest in BNSF Railway creates an afEliated 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 Licenses, PacifiCorp cannot meet its
obligation to provide safe and reliable electric service. BNSF uses standardized pricing for these
types of licenses. As the property owner, BNSF is the only entity that can provide the Licenses
to PacifiCorp.
Please do not hesitate to contact me if you have any questions.
Sincerely,
,':7
l-: (t;..(- _
Timothy K. Clark
Senior Attorney
PacifiCorp
2
ATTACHMENT A
PacifiCorp Notice of Affiliate Transaction
to
aJ
Jtt Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Rd., Suite 110
Fort Worth, Texas 76155
tel [phone], fax +1 817 30G8265
20-66429
January 14,2021
PacifiCorp
Attention: Mr. Scott Mease
825 NE Multnomah Street, Suite 1700
Portland, OR 97232
Dear Mr. Mease:
Attached please find a copy of the requested contract for execution by an official authorized to execute contract
agreementSonbehalfofyourcompany.PleaSeprinttwo(2)copiesexecuteand
sionature for completion on part of BNSF Raihray Company ('BNSF") to this office, along with the following
requirements:
. A check in the amount of $6,525.00 payable to BNSF Railway Company which covers the contract fee.
Please note the agreements cannot be executed by BNSF without an approved insurance certificate. lf there are
any issues with your insurance, you will be contacted by a member of the Risk Management team of BNSF
Railway.
1. A Certificate of lnsurance as required in the agreement.2. A separate policy for Railroad Protective Liability lnsurance as required in the agreement (ORIGINAL
POLICY MUST BE PROVIDED). BNSF Railway Gompanywill be the only insured party; OR;
ln lieu of providing a separate policy for Railroad Protective Liability lnsurance, you may participate in the
BNSF's Railroad Protective Policy by checking the appropriate box in the contract and including an additiona!
$506.00 with your check.
PLEASE ADVISE IF THIS PROJECT IS ARRA FUNDED.
Licensee must ensure that each of its employees, contractors, agents or invitees entering upon the premises
completes the safe$ orientation program at the website www.BNSFcontractor.com prior to entering upon the
premises. The certification is good for one year, and each person entering the premises must possess the card
certiffing completion.
Acceptance and deposit of any check by BNSF does not constitute an agreement between BNSF and Licensee
for the requested license. BNSF shall not be obligated to hold the check in a separate fund, but may commingle
the funds with other funds of BNSF, and in no event shall BNSF be responsible for interest on said funds.
The enclosed permit is not a binding agreement and shall become binding only when, and if, it is executed by you
and fully approved and executed by BNSF Railway Company. Upon completion on behalf of BNSF, one fully
executed counterpart will be returned for your records.
The specificatlons/plans you provided may differ from BNSF'c minimum specification
requirements. Therefore, prior to your installation, please review the Exhibit A to determine the
specifications necessary for you r i nstal lation.
Please be informed that if contracts, fees, and insurance are not returned within sixty (60) days, the processing
fee will increase to $1,600.00.
Sincerely,
Katie Robles
Manager - Permits
Attachment
1
Tracking #20-66429
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, lrrespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective 2021 (the
"Effective Date') by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and PACIFICORP,
an Oregon corporation ("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, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance
with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings
and Specifications"), an electric supply line containing a maximum of five (5) existing conductors, together with its
supporting or containing structures (collectively, the "Electric Supply Line"), across or along Licensor's rail corridor
at or near the station of Albany, County of Linn, State of Oregon, Line Segment 0457 and 0457, Mile Post 96.62 to
96.73 as shown on the attached Drawing No. 79719, dated December 10, 2020,aftached hereto as Exhibit "A"
and incorporated herein by reference (the "Premises").
2 Term. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
Existinq lmprovements. 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
(a) Licensee shall pay Licensor, as compensation for this license, the sum of Six Thousand Five Hundred
Twenty-Five and No/100 Dollars ($6,525.00) payable annually and in advance ("Base License Fee"). Base
License Fee shall increase 3% annually during the term of the license. Licensor reserves the right to change
licensing fee as conditions warrant. Billing or acceptance by Licensor of any license fee shall not imply a
definite term or otherwise restrict either party from canceling this License as provided herein. Either party
hereto may assign any receivables due it under this License; provided, however, such assignments shall
not relieve the assignor of any of its rights or obligations under this License. All licensing fees and other
monetary payments under this License from Licensee to Licensor shall be delivered solely to the following
address:
BNSF Railway Company
Jones Lang LaSalle Representative for BNSF
P.O. Box 676160
Dallas, Texas 75267-61 80
Licensor shall have the right to designate at any time and from time to time a different address for delivery
of such payments. No licensing fee or other payment sent to any other address shall be deemed received
3.
4.
5
6
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Form 421; Rev.20190916
Tracking #20-66429
by Licensor unless and until Licensor has actually posted such payment as received on the account of
Licensee, and Licensee shall be subject to all default provisions hereunder, late fees and other
consequences as a result thereof in the same manner as if Licensee had failed or delayed in making any
payment.
(b)Licensee acknowledges that Licensor utilizes the licensing fee collection system involving direct deposit of
monies received through a financial institution selected by Licensor, which precludes Licenso/s ability to
exercise rejection of a licensing fee before Licensee's check is cashed. Licensee agrees that as a condition
of Licensor granting this License, Licensee hereby waives any rights it may have under law to force
continuation of this License due to Licensor having accepted and cashed Licensee's licensing fee
remittance. Licensor shall have the option of rejecting Licensee's payment by refunding to Licensee the
licensing fee amount paid by Licensee, adjusted as set forth in this License, and enforcing the termination
provisions of this License.
(c)Licensee shall pay the Base License Fee and all additional amounts due as and when the same become
due and payable, without demand, set-off, or deduction. Licensee's obligation to pay Base License Fee
and all amounts due under this License is an independent covenant and no act or circumstance, regardless
of whether such act or circumstance constitutes a breach under this License by Licensor, shall release
Licensee of its obligation to pay Base License Fee and all amounts due as required by this License.
7. Costs and Expenses
7.1 For the purpose of this License, "cost" or "costs" and "expense" or "expenses" includes, but is not limited
to, actual labor and material costs including all assignable additives, and material and supply costs at
current value where used.
7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs and
expenses 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 "Seryices"). 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 days and holidays (as applicable); vacation allowance; paid holidays
(as applicable); railway and unemployment insurance; public liability and property damage insurance;
health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for 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 arrange 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) days after the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
Street Journal in the preceding December plus two and one-half percent (2-112o/o), or (ii) the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
Reserved Riqhts 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:
8.
I
2
Form 421; Rev. 20190916
10
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Suoolv Line.
Tracking #20-66429
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 character upon, over, under or across the Premises existing as of the Effective Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities,
structures and related appurtenances upon, over, under or across the Premises; or
9.3 to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided Licensor
uses all commercially reasonable efforts to avoid material interference with the use of the Premises by
Licensee for the purpose specified in Section 4 above.
Riqht to Reouire Relocation. 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 Electric Supply Line, Licensee
shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make
such changes in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Licensor's rail 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.
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by Licenso/s
representative, the Scheduling Agent or its designee. Licensee shall notifu Licensor's Roadmaster, Dennis
Hannahs at Dennis,[e-mail], telephone , 503-508-7440 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 notiff 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.
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks
to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
11.5 Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity
using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee
has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all
activities on and about the Premises, 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.
3
Form 421; Rev.20190916
Tracking #20-66429
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 activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. The
construction of the Electric Supply Line shall be completed within one (1) year of the Effective Date, and
any subsequent maintenance shall be completed within one (1) year of initiation. Within fifteen (15) days
after completion of the construction of the Electric Supply Line or the performance of any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to
substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in
writing. On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost
and expense, surrender the Premises to Licensor pursuant to the terms and conditions set forth in Section
24 hereof.
11.7 Licensor may direct one or more of its field engineers 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 Llcensor 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, failto properly perform its obligations underthis Section 11, Licensor may, at its option and at
Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of
its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Section 8. Licensor's failure to perform any obligations of Licensee shall
not alter the liability allocation hereunder.
11.8 Licensee shall, at its sole cost and expense, construct and at all times maintain the Electric Supply Line in
accordance with the National Electric Safety Code.
11.9 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 currents, with the facilities of Licensor or of any lessee or licensee of Licensor, or in any manner
interfere with the operation, maintenance, or use by Licensor of its right-of-way, tracks, structures, pole
lines, signal and communication lines, radio, or other equipment, devices, other propefi or appurtenances
thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and furnish such
protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be
necessary, in the judgment of Licensor's representative, to eliminate such interference. The cost of such
protective devices and their installations shall be borne solely by Licensee. lf any of the interference
covered by this Section 11.9 shall be, in the judgment of 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 11.9 have been installed, put in operation, tested, and found to be satisfactory to
correct the interference.
Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles
on the Premises, if any, and will at all times keep the space around such poles free of such material, and if
removal of such combustible material shall not be attended to with fifteen (15) days after having been
requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incurred.
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11.10
Form 421: Rev. 20190916
Tracking #20-66429
12. Borino and Excavation.
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-you-dig 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, plovided, 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 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
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 applicable, identify the location of such lines on the Premises pursuant to
Licensor's standard procedures. Licensor does not warrant the accuracy or completeness of information
relating to subsurface conditions of the Premises and Licensee's operations will be subject at all times to
the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil
investigation must be performed by Licensee and reviewed by Licensor prior to construction. This study is
to determine if granular material is present, and to prevent subsidence during the installation process. 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, carry
out the approved plan in accordance with all terms thereof and hereof.
12.3 Any open hole, boring, orwell constructed on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings constructed on the Premises by Licensee shall be:
12.3.1 filled in to surrounding ground levelwith compacted bentonite grout; or
12.3.2 otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated
materials may remain on Licensor's property for more than ten (10) days, but must be properly
disposed of by Licensee in accordance with applicable Legal Requirements.
LIABILITYAND INSURANCE
13. Liabilitv and lndemnification.
13.1 For purposes of this License: (a) "lndemnitees" means Licensor and Licensor's affiliated companies,
partners, successors, assigns, legal representatives, officers, directors, shareholders, employees, and
agents; (b) "Liabilities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable
attorneys' fees, costs of investigation, removal and remediation, and governmental oversight costs)
environmental or otherwise; and (c) "Licensee Parties" means Licensee and Licensee's officers, agents,
invitees, licensees, employees, or contractors, or any party directly or indirectly employed by any of them,
or any party they control or exercise control over.
TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE lTS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES FOR,
13.2
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Form 42'li Rev. 2019091 6
Tracking #20-68429
FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR DESCRIPTION
DTREGTLY OR TNDTRECTLY ARISING OUT OF, RESULTTNG FROM, OR RELATED TO (rN WHOLE OR
rN PART):
13.2.'I THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
,13.2.3 LIGENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2,4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, AND
WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS 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
GOMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, AS
AMENDED ("CERCLA") OR OTHER ENVTRONMENTAL LAWS (DEFINED BELOW). NOTHTNG tN
THIS LICENSE IS MEANT BY EITHER PARTY TO GONSTITUTE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES
AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE 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, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM AND AGATNSTANy LTABTLTTTES ARISING OUT OF OR RELATEDTO (rN WHOLE
oR tN PART) ANY SUCH ASSERTTON INCLUD|NG, BUT NOT LIMITED TO, ASSERTTONS OF
EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWING OR ANY PROGEEDINGS
THEREUNDER: THE FEDERAL EMPLOYERS, LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION AGT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE
RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LIABILITY OF ANY INDEMNITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any 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, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE ATTHE RISK OF LICENSEE ONLY,
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15.
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AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
lnsurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of this License the
following insurance coverage:
15.1 Commercial General Liabilitv "CGL" lnsurance.
a. The policy will provide a minimum of $2,000,000 per occurrence 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 otherwise canied
by Licensee. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and
include coverage for, but not limited to, the following:. Bodily lnjury and Property Damage. Personal lnjury and Advertising lnjury. Fire legal liability. 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
policy(s) are intended to apply to employees of the policyholder and will not apply to Licenso/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 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.r Any and allvehicles owned, used or hired.
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-contributing 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 coverage 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 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.
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Form 421; Rev. 20190916
15.4
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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 CONSTRUCTION OF THE ELEGTRIC SUPPLY LINE SHALL BE COMPLETED WITHIN ONE
(1) YEAR OF THE EFFECTIVE DATE. lf further maintenane,e 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 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 propefi 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.
tr Licensee elects to participate in Licensor's Blanket Policy;
tr Licensee declines to participate in Licensor's Blanket Policy.
15.5 OtherRequirements.
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
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 propefi 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 cover any self-insured retention or other
financial responsibility for claims in lieu of insurance. Any and all Licensor 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.
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.
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Form 421; Rev. 20190916
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15.5.7 Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or
with a current Best's Guide Rating of A- and Class 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 represents that this License has been thoroughly reviewed by Licensee's insurance
agent(s/broke(s), and that Licensee has instructed them to procure the insurance coverage
required by this License.
15.5.10 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modify
the insurance requirements to reflect the then-current risk management practices in the railroad
industry and underwriting practices in the insurance industry.
15.5.11 lf 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 indemnifo 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.
15.5.12 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.
15.5.13The 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 coverage.
15.5.14 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.
15.5.15 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.
15.5.16 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.
15.5.17 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC", "BNSF
Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE wlTH 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 construction, maintenance, and use of the Electric Supply Line and
the use of the Premises.
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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 Orientation") within one year prior to entering upon the
Premises. Additionally, Licensee must ensure that each and every employee of Licensee, its contractors,
agents and invitees possess a card certifoing 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 necessary in order to permit Licensee to construct,
maintain, own and operate the Electric Supply Line and otherwise to perform its obligations hereunder in
accordance with the terms and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does not
expire, in accordance with its ordinary terms, prior to the last day of the term of this License or, if the initial
stated term of any such Right expires in accordance with its ordinary terms on a date earlier than the last
day of the term of this License, Licensee shall, at its cost, exercise any renewal rights thereunder, or
othenrise acquire such extensions, additions and/or replacements as may be necessary, in order to cause
the stated term thereof to be continued until a date that is not earlier than the last day of the term of this
License.
'16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate or
use the Electric Supply Line in accordance with the terms and conditions of this License, this License
thereby shall automatically expire upon such expiration or termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery
Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposalfacility, or underground storage tank, as defined by
Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as
"hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,
or local governmental agency or body on the Premises. Licensee agrees periodically to furnish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at [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
Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on, from, or affecting the Premises. Licensee also shall give Licensor
immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to
or otherwise cure such release or violation.
17.4 lf Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occuned 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
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Form 421; Rev. 20190916
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investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or
Licensor's right-of-way.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known
to Licensee which create a risk of harm to persons, property or the environment and shall take whatever
action is necessary to prevent injury to persons, property, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request
for information regarding said conditions or activities.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18,1 LIGENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR
IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST
BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANW OF
MERCHANTABILIW, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18,2 LICENSOR MAKES NO WARRANW, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
oR tMpLtED, CONCERNTNG (A) THE SCOPE OF THE LTCENSE OR OTHER RTGHTS GRANTED
HEREUNDER TO LTCENSEE OR (B) WHETHER OR NOT LTCENSEE',S GONSTRUCTTON,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELEGTRIC SUPPLY LINE WILL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY
THIRD PARTY.
19. Disclaimer of Warrantv for Quiet Eniovment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES
NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS MADE.
20. Eviction at Risk of Licensee. 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 AND TAXES
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; provided, however, that failure of
Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 21 or any
other Section of this License.
22. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or
assessed by any governmental or quasi-governmental body upon the Electric Supply Line or any other
improvements constructed or installed on the Premises by or for Licensee (collectively, the "lmprovements") or
any Taxes levied or assessed against Licensor or the Premises that are attributable to the lmprovements.
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DEFAULT. TERMINATION. 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 Section 15, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thirty (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Section 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination
upon Licensee.
233 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 forfailure to provide evidence
of insurance or occurrence of defaults as described above, this License may be terminated by either party,
at any time, by serving thirty (30) days' written notice of termination upon the other party. Such termination
shall not release either party hereto from any liability or obligation under the License, whether of indemnity
or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or
thereafter in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
24.1.1 if so directed by Licensor in writing, remove the 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 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 surrender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration Obligations"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee
to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall
continue in effect until the Premises are surrendered and the Restoration Obligations are completed.
Neither termination nor expiration shall release Licensee from any liability or obligation under this License,
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whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date
of termination, or, if later, the date when Licensee surrenders the Premises and all of the Restoration
Obligations are completed.
24.3 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) days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notice to
Licensee, take and hold the Electric Supply Line and the other 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.
MlSCELLANEOUS
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.
26. Assionment.
26J Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of the equity
interests of Licensee following which the equity interest holders of Licensee immediately prior to such sale
own, directly or indirectly, less than 50% of the combined voting power of the outstanding voting equity
interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization,
recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
or indirectly, at least 50o/o ol the combined voting power of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE LAND
WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purported Assignment") to another party (a "Purported Transferee"),
the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this
License, including but not limited to the obligation to comply with the provisions of Section 15 above
concerning insurance requirements. ln addition to and not in limitation of the foregoing, Licensee, for itself,
its successors and assigns, shall indemnifu, 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 Section 26.3 shall survive the
expiration or earlier termination of this License.
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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 other writing required or permitted to be given hereunder by one party to the other
shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in
the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized
overnight delivery service, addressed to the party to be notified at the address for such pafi specified below, or to
such other address as the party to be notified may designate by giving the other party no less than thirty (30) days'
advance written notice of such change in address.
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
2650 Lou Menk Drive
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
lf to Licensee:PacifiCorp
825 NE Multnomah Street, Suite 1700
Portland, OR 97232Attn: Scott Mease
Survival. Neither termination nor expiration will release either party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date when the Electric Supply Line and the other lmprovements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
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 in such manner
as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held
to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or
invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License.
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 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 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.
28.
29.
30.
31.
32.
33.
34.
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35. 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 contract would be construed against the party which drafted the same. Article titles,
headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of
reference only and are not intended to be a part or to affect the meaning or interpretation hereof. The
exhibit or exhibits referred to herein shall be construed with and as an integral part of this License to the
same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import; "writing", "written" and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a visible
form; references to any person are also to that person's successors and permitted assigns; "hereof',
"herein", "hereunder" and comparable terms refer to the entirety hereof and not to any particular article,
section, or other subdivision hereof or attachment hereto; references to any gender include references to
the masculine or feminine as the context requires; references to the plural include the singular and vice
versa; and references to this License or other documents are as amended, modified or supplemented from
time to time.
36.Counteroarts. This License may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature pages from
any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts
of this License may also be exchanged electronically and any electronic version of any party's signature shall be
deemed to be an original signature for all purposes.
37.Equal Protection. lt is agreed that the provisions of Section 13 are for the equal protection of other railroad
companies, including, without limitation, the Portland and Western Railroad, permitted to use Licensor's property,
and such railroad companies shall be deemed to be included as lndemnitees under Sectionl3.
Licensor's Reoresentative. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF Railway
Company.
END OF PAGE -SIGNATURE PAGE FOLLOWS
38.
-15-
Form 421:. Rev. 20190916
Tracklng #20€6429
This License has been duly exeouted by the parties hereto as of the Effective Date.
LIGENSOR:
BNSF Railway Gompany, a Delaware corporation
By: Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Road, Suite 110
FortWorth, D( 76155
LICENSEE;
PaoifiCorp, an Oregon corporation
By:
Title:
Date:
By:
Title:
Date:
- 16-
Fsrm 421; Rw.20190O16
COORDINATE SYSTEM: OR N
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NOTE:
ALL TRACKAGE AND IMPROVEMENTS IN TRACK CORRIDOR LEASED BY
BF-23133 TO THE PORTLAND & WESTERN RAILROAD. INC. DATE 01IOlI2OO3
FROM QUTNABY OR (SALEM) TO EUGENE, OR, MP 64.70 - MP 141.45 (1.S. 0442)
SUBJECT TO TRACKAGE RIGHTS
LENGTH ON
RIGHT OF WAY:
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WIRES LOCATED AS SHOWN BOLD ?
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TRACKING NO. 20€6429
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REVISION 3 DRAWING NO.79719
JLL Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Rd., Suite 110
Foft Worh, Texas 76155
tel[phone], fax [phone]
December 1,2020
PacifiCorp
Attention: Mr. Scott Mease
825 NE Multnomah Street, Suite 1700
Portland, OR 97232
20-66957
Dear Mr. Mease:
Attached please find a copy of the requested contract for execution by an official authorized to execute contract
agreementsonbehalfofyourcompany.Pleaseprinttwo(2)copiesexecuteand
sisnature for completion on part of BNSF Railway Company ("BNSF') to this office, along with the following
requirements:
. A check in the amount of $3,753.00 payable to BNSF Railway Company which covers the contract fee.
Please note the agreements cannot be executed by BNSF without an approved insurance certificate. lf there are
any issues with your insurance, you will be contacted by a member of the Risk Management team of BNSF
Railway.
1. A Certificate of lnsurance as required in the agreement.2. A separate policy for Railroad Protective Liability lnsurance as required in the agreement (ORIGINAL
POLICY MUST BE PROVIDED). BNSF Railway Company will be the only insured party; OR;
ln lieu of providing a separate policy for Railroad Protective Liability lnsurance, you may participate in the
BNSF's Railroad Protective Policy by checking the appropriate box in the contract and including an additional
$506.00 with your check.
PLEASE ADVISE IF THIS PROJECT IS ARRA FUNDED.
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 prior to entering upon the
premises. The certification is good for one year, and each person entering the premises must possess the card
certiffing completion.
Acceptance and deposit of any check by BNSF does not constitute an agreement between BNSF and Licensee
for the requested license. BNSF shall not be obligated to hold the check in a separate fund, but may commingle
the funds with other funds of BNSF, and in no event shall BNSF be responsible for interest on said funds.
The enclosed permit is not a binding agreement and shall become binding only when, and if, it is executed by you
and fully approved and executed by BNSF Railway Company. Upon completion on behalf of BNSF, one fully
executed counterpart will be returned for your records.
The specifications/plans you provided may differ from BNSF's minimum specification
requirements. Therefore, prior to your installation, please review the Exhibit A to determine the
specifications necessary for your installation.
Please be informed that if contracts, fees, and insurance are not returned within sixty (60) days, the processing
fee will increase to $1,600.00.
Sincerely,
Katie Robles
Manager - Permits
Attachment
1
Tracking #20-66957
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, lrrespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective 2020 (the
"Effsctive Date') by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licenso/') and PACIFICORP,
an Oregon corporation ("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, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance
with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings
and Specifications"), an electric supply line containing a maximum of three (3) conductors, together with its
supporting or containing structures (collectively, the "Electric Supply Line"), across or along Licensor's rail conidor
at or near the station of Bend, County of Deschutes, State of Oregon, Line Segment 0054, Mile Post 2.25 as shown
on the attached Drawing No. 80350, dated November 20, 2020, attached hereto as Exhibit "A" and incorporated
herein by reference (the "Premises").
Term. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
Existino lmorovements. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
lieensees, 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 Three Thousand Seven Hundred
Fifty-Three and No/100 Dollars ($3,753.00) as compensation for the use of the Premises.
Costs and Exoenses.
7.1 For the purpose of this License, "cosf' or "costs" and "expense" or "expenses" includes, but is not limited
to, actual labor and material costs including all assignable additives, and material and supply costs at
current value where used.
7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs and
expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence,
construction and maintenance of the Electric Supply Line, including but not limited to the furnishing of
Licensor's flaggers and any vehicle rental costs incurred, inspection coordination, safety, mobilization
and/or other observation 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, the following: pay for at least an eight (8) hour basic day with time and one-
half or double time for overtime, rest days and holidays (as applicable); vacation allowance; paid holidays
2.
3.
4.
5.
6.
7.
Form 421: Rev. 20190916
8.
9.
Tracking #20-66957
(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 Agenf'), to perform
and/or arrange 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) days after the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
Street Journal in the preceding December plus two and one-half percent (2-112o/o), 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 character upon, over, under or across the Premises existing as of the Effective Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities,
structures and related appurtenances upon, over, under or across the Premises; or
9.3 to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided Licensor
uses all commercially reasonable efforts to avoid material interference with the use of the Premises by
Licensee for the purpose specified in Section 4 above.
10 Rioht to Require Relocation. lf at any time during the term of this License, Licensor desires the use of its rail conidor
in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Electric Supply Line, Licensee
shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make
such changes in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the Electric Supply
Line, or the construction of a new electric line to replace the Electric Supply Line. Notwithstanding the foregoing,
Licensee agrees to make all emergency changes and minor adjustments, as determined by Licensor in its sole
discretion, to the Electric Supply Line promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Suoolv Line
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by Licensor's
representative, the Scheduling Agent or its designee. Licensee shall notify Licensor's Roadmaster,
Terrence Highfield at [e-mail], telephone [phone], 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.
2
Form 421; Rev. 20190916
Tracking #20-66957
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks
to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
11.5 Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity
using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee
has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all
activities on and about the Premises, 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.
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 propefi of Licensor, (ii) the safe operation
and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. The
construction of the Electric Supply Line shall be completed within one (1) year of the Effective Date, and
any subsequent maintenance shall be completed within one (1) year of initiation. Within fifteen (15) days
after completion of the construction of the Electric Supply Line or the performance of any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to
substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in
writing. On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost
and expense, surrender the Premises to Licensor pursuant to the terms and conditions set forth in Section
24 hereof.
11.7 Licensor may direct one or more of its field engineers 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 underthis Section 11, Licensor may, at its option and at
Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of
its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Section 8. Licensor's failure to perform any obligations of Licensee shall
not alter the liability allocation hereunder.
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.
11.8
-3-
Form 421; Rev. 20190916
Tracking #20-66957
11.9 lf the operation or maintenance of the Electric Supply Line at any time @uses interference, including but
not limited to physical interference from electromagnetic induction, electrostatic induction, or from stray or
other currents, with the facilities of Licensor or of any lessee or licensee of Licensor, or in any manner
interfere with the operation, maintenance, or use by Licensor of its right-of-way, tracks, structures, pole
lines, signal and communication lines, radio, or other equipment, devices, other property or appurtenances
thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and furnish such
protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be
necessary, in the judgment of Licensor's representative, to eliminate such interference. The cost of such
protective devices and their installations shall be borne solely by Licensee. lf any of the interference
covered by this Section 11.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediate corrective action, Licensee, upon notice from Licensor, shall
either, at Licensor's election, cease using the Electric Supply Line for any purpose whatsoever and remove
same, or reduce the voltage or load on the Electric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, until the protective devices and/or replacement equipment
required by this Section 11.9 have been installed, put in operation, tested, and found to be satisfactory to
correct the i nterference.
11.10 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles
on the Premises, if any, and will at all times keep the space around such poles free of such material, and if
removal of such combustible material shall not be attended to with fifteen (15) days after having been
requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incurred.
12. Borino and Excavation.
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-you-dig utility location service to have 3'd 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, ryiglgg[, @I, that in lieu of the foregoing handtool exploration,
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
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 applicable, identify the location of such lines on the Premises pursuant to
Licensor's standard procedures. Licensor does not warrant the accuracy or completeness of information
relating to subsurface conditions of the Premises and Licensee's operations will be subject at all times to
the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil
investigation must be performed by Licensee and reviewed by Licensor prior to construction. This study is
to determine if granular material is present, and to prevent subsidence during the installation process. 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, carry
out the approved plan in accordance with all terms thereof and hereof.
12.3 Any open hole, boring, or well constructed on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings constructed on the Premises by Licensee shall be:
4
Form 421; Rev. 20190916
Tracking #20-66957
12.3.1 filled in to surrounding ground levelwith 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 propefi 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) "lndemnitees" means Licensor and Licensor's affiliated companies,
partners, su@essors, assigns, legal representatives, officers, directors, shareholders, employees, and
agents; (b) "Liabilities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable
attorneys' fees, costs of investigation, removal and remediation, and governmental oversight costs)
environmental or otherwise; and (c) "Licensee Parties" means Licensee and Licensee's officers, agents,
invitees, licensees, employees, or contractors, or any party directly or indirectly employed by any of them,
or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES FOR,
FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, K!ND, OR DESCRIPTION
DIRECTLY OR TNDTRECTLY ARISING OUT OF, RESULTTNG FROM, OR REIATED TO (tN WHOLE OR
rN PART):
13,2,1 THIS LICENSE, INGLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
13.2,2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2,3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2,5 ANYACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, AND
WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS 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, AND LIABILITY ACT, AS
AMENDED ('CERCLA") OR OTHER ENVTRONMENTAL LAWS (DEFINED BELOW). NOTHING lN
THIS LICENSE !S MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES
AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE 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, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE ITS GONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM AND AGATNST ANY LIABTLTTTES AR|SING OUT OF OR RELATED TO (tN WHOLE
5
Form 421; Rev. 20190916
14
15
Tracking #20-66957
oR tN PART) ANY SUCH ASSERTTON |NCLUDING, BUT NOT LIMITED TO, ASSERTTONS OF
EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT, THE SAFEW APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFEW AND HEALTH ACT, THE
RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LIABILITY OF ANY INDEMNITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any 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 PROPERW, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR !N PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
lnsurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of this License the
following insurance coverage:
15.1 Commercial General Liabilitv "CGL" lnsurance.
a. The policy will provide a minimum of $2,000,000 per occurrence 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 otherwise carried
by Licensee. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and
include coverage for, but not limited to, the following:. Bodily lnjury and Property Damage. Personal lnjury and Advertising lnjury. Fire legal liability. Products and completed operations. Contractual Liability for an "lnsured Contracf' 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 propefi damage.. Any and allvehicles owned, used or hired.
6
Form 421; Rev. 20190916
Tracking #20-66957
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-contributing with respect to any insurance canied 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 coverage 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 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 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 CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COMPLETED WITHIN ONE
(1) 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 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 ooverage 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 OtherRequirements.
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,
-7-
Form 421; Rev. 20190916
Tracking #20-66957
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 cover any self-insured retention or other
financial responsibility for claims in lieu of insurance. Any and all Licensor 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.
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 ftom an authorized representative evidencing the
req u ired 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 current 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 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.
15.5.10 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modify
the insurance requirements to reflect the then-current risk management practices in the railroad
industry and underwriting practices in the insurance industry.
15.5.11|f 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 indemnify Licensee to the same extent and under the same terms and conditions as
Licensee is required to release, defend and indemnifo Licensor under this agreement.
15.5.12 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.'13The 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 coverage.
15.5.14!n 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.
8
Form 42'l', Rev. 20190916
Tracking #20-66957
15.5.15 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 @verage 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.
15.5.16 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.
15.5.17 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC", "BNSF
Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WITH LAWS. REGUIATIONS. 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 construction, maintenance, and use of the Electric Supply Line and
the use of the Premises.
16.2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s) to comply with all of
Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees,
contractors, agents or invitees entering upon the Premises completes the safety orientation program at the
Website "www.BNSFcontractor.com" (the'Safety Orientation") within one year prior to entering upon the
Premises. Additionally, Licensee must ensure that each and every employee of Licensee, its contractors,
agents and invitees possess a card certiffing 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 ac@ss to the Premises (collectively, the "Rights") and such other rights, licenses, permits,
authorizations, and approvals (including without limitation, any necessary local, state, federal or tribal
authorizations and environmental permits) that are necessary in order to permit Licensee to construct,
maintain, own and operate the Electric Supply Line and otherwise to perform its obligations hereunder in
accordance with the terms and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does not
expire, in accordance with its ordinary terms, prior to the last day of the term of this License or, lf the initial
stated term of any such Right expires in accordance with its ordinary terms on a date earlier than the last
day of the term of this License, Licensee shall, at its cost, exercise any renewal rights thereunder, or
otherwise acquire such extensions, additions and/or replacements as may be necessary, in order to cause
the stated term thereof to be continued until a date that is not earlier than the last day of the term of this
License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate or
use the Electric Supply Line in accordance with the terms and conditions of this License, this License
thereby shall automatically expire upon such expiration or termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery
Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
-9-
Form 42'l; Rev. 20190916
Tracking #20-66957
Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposalfacility, or underground storage tank, as defined by
Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as
"hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,
or local governmental agency or body on the Premises. Licensee agrees periodically to furnish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at [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
Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on, from, or affecting the Premises. Licensee also shall give Licensor
immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to
or otherwise cure such release or violation.
17.4 lf Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occurred or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or
Licensor's right-of-way.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known
to Licensee which create a risk of harm to persons, propefi or the environment and shall take whatever
action is necessary to prevent injury to persons, property, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request
for information regarding said conditions or activities.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR
IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST
BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, HABITABILITY OR FITNESS FORA PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
oR IMPLIED, CONCERNTNG (A) THE SCOPE OF THE LTCENSE OR OTHER RTGHTS GRANTED
HEREUNDER TO LTCENSEE OR (B) WHETHER OR NOT LTCENSEE'S CONSTRUCTTON,
MAINTENANGE, 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 TITLE TO THE PREMISES
NOR UNDERTAKE TO DEFEND LIGENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS MADE.
19
10
Form 421; Rev. 201909'16
20
Tracking #20-66957
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 AND TN(ES
21. Liens and Charqes. 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; provided, however, that failure of
Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 21 or any
other Section of this License.
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 "lmprovements") or
any Taxes levied or assessed against Licensor or the Premises that are attributable to the lmprovements.
DEFAULT. TERMINATION. AND SURRENDER
Default and Termination. ln addition to and not in limitation of Licensor's right to terminate for failure to provide
evidence of insurance as required pursuant to the terms of Section 15, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thirg (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Section 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving five (5) days'notice of termination
upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this
License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability
to enforce any Section of this License. The 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 forfailure to provide evidence
of insurance or occurrence of defaults as described above, this License may be terminated by either party,
at any time, by serving thirty (30) days'written notice of termination upon the other party. Such termination
shall not release either party hereto from any liability or obligation under the License, whether of indemnity
or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or
thereafter in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Surrender of the Premises.
24J On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
22
23.
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Form 421; Rev. 20'190916
Tracking #20-66957
241.1 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 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 surrender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration Obligations"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee
to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall
continue in effect until the Premises are 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 otherwise, resulting from any acts, omissions or events happening prior to the date
of termination, or, if later, the date when Licensee surrenders the Premises and all of the Restoration
Obligations are completed.
24.3 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) days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notice to
Licensee, take and hold the Electric Supply Line and the other 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.
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 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.
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 otherwise) without the prior written consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of the equity
interests of Licensee following which the equity interest holders of Licensee immediately prior to such sale
own, directly or indirectly, less than 50% of the combined voting power of the outstanding voting equity
interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization,
recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
25
26
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Form 421:' Rev. 20190916
Tracking #20-66957
or indirectly, at least 50% of the combined voting power of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE LAND
WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purported Assignment") to another party (a "Purported Transferee"),
the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this
License, including but not limited to the obligation to comply with the provisions of Section 15 above
concerning insurance requirements. ln addition to and not in limitation of the foregoing, Licensee, for itself,
its successors and assigns, shall indemnifu, 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 Section 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.
27 Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to the other
shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in
the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized
overnight delivery service, addressed to the party to be notified at the address for such pafi specified below, or to
such other address as the party to be notified may designate by giving the other pafi no less than thirty (30) days'
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
2650 Lou Menk Drive
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
lf to Licensee PacifiCorp
825 NE Multnomah Street, Suite 1700
Portland, OR 97232
Attn: Scott Mease
28.Survival. Neither termination nor expiration will release either party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date when the Electric Supply Line and the other lmprovements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
29.
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Form421; Rev.20190916
30
Tracking #20-66957
Aoplicable Law. All questions concerning the interpretation or application of provisions of this License shall be
decided according to the substantive laws of the State of Texas without regard to conflicts of law provisions.
31 Severabilitv. To the maximum extent possible, each provision of this License shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held
to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or
invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License.
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 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 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 source of the draftsmanship; both parties hereby agree that this License shall not be subject to
the principle that a contract would be construed against the party which drafted the same. Article titles,
headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of
reference only and are not intended to be a part or to affect the meaning or interpretation hereof. The
exhibit or exhibits referred to herein shall be construed with and as an integral part of this License to the
same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import; "writing", "written" and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a visible
form; references to any person are also to that person's successors and permitted assigns; "hereof',
"herein", "hereunder" and comparable terms refer to the entirety hereof and not to any particular article,
section, or other subdivision hereof or attachment hereto; references to any gender include references to
the masculine or feminine as the context requires; references to the plural include the singular and vice
versa; and references to this License or other documents are as amended, modified or supplemented from
time to time.
36 Counteroarts. This License may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature pages from
any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts
of this License may also be exchanged 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
32
33
u
35
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Form 421: Rev. 20190916
Tracking #20-66957
This License has been duly executed by the parties hereto as of the Effective Date.
EES:
BNSF Railway Company, a Delaware corporation
Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Road, Suite 110
Fort Worth, TX 76155
By:
t!9ENliEE:
PacffiCorp, an Oregon corporation
By:
Title:
Date
By:
Title:
Date:
-15-
Form 421; Rev. 20190916
COORDINATE SYSTEM: OR S TRACKING NO. 2066957
NIo)l:ltr,lol
lJ-[!E
(L
EXHIBIT ITAII
ATTACHED TO CONTRACT BET\A/EEN
BNSF RAILWAY COMPANY
AND
N
PACIFICORP
1lN=100FT SECTION
DIV ulootd)JJ
f,
oF
TOWNSHIP & RANGE
SUBDIV
s. 0054 MP 2.25 MERIDIAN11t20t2020
LarksPur LooP
I 50',50'
ProPosed MurPhY Rd
24.5'
15'FROM
TRACK SWITCH
/
MP 2,25
44.019062 -121.289062
t
j
ii
Eye, Earthstar Geograph
, lGN, and the GIS User
ics, CNES/Airbus
Community
DS
NOTE:
2-6" & 1-3" PVC CONDUTTS
2 OCCUPIED W
4 ELECTRIC CABLES
1 VACANT
DESCRIPTION OF WRES OVER TRACK
WRES LOCATED AS SHOWN BOLD
ryPE
NUMBER OF CONDUITS
VOLTAGE
ELECTRIC SIZE OF CONDUIT
CONDUIT MATERIAL
WALL THICKNESS
LENGTH ON R^//
DISTANCE ABOVE
TOP OF RAIL
2-6",1-3"
PVC SCH4O
0.280':_021_6".
201'
J
7.zKV
NOTE: CONDUITS TO BE ENCASED lN SIDEWALK ON PROPOSED BRIDGE
28.s'.
BEND
COUNTY OF DESCHUTES JNCSTATE OF OR
DRAWING NO.80350
Febnrary 22,2021
PacifiCorp
Attention Mr. lnogen Taylor
825 NE Multnomah St., Suite 1700
Portlan4 OR nnz
JLL
he*fl$lrA
Jonea Lang laSalle Brckerage, |rc.
42m Budrlngham Rd., Suite 110
FortWorth, Tqas 76155
tcl +1 817-23G2flD. hx +1 817 3OG8:165
2047039
DearMr. Taylon
Enclod pleasc find onc (l) fuUV execufed Electric Licase Agrc€m€ril. A copy of the executed agreement must
be available upotr requeet at the job site as authorization to do the wo,rk. Plcose cortad B/Y^9F's Scheduling
Agent d wilsoncomoant.utilitv.itfr'nilsonco.com or 81G55G3621 d leasfifien (15) doys in dvancc of cnfry
cnd BEFORE YOA DIG, CALL (800) 533-2E91 (optbn D. IfWu ne.d addttiond hforaotbn pleaso contad
n2d(817)230-2631.
Liceirsce must cosurc that each of its e,mployeee, contractors, agents or invitees entering tryon the plemis€s
complAes the safety orientation program at the website www.BNSFcontractor.com prior to entering upon the
premises. The certification is good for one year, and each person cotcring the prcmises must possess fte card
certifring complaion-
No e,ncroachment above, below or on BNSF Right-of-Way will be allowed without the presence of an Inspector
Coordinaror and Flagman You must contact BNSF's Scheduling Ageit to arrange for those services. The
scheduling agent may be contacted atwilsoncomlnnv.utilin'.ictgmilsonco.com or 81655G3624. "I\e installation
contractor must comply with all applicable sections of this agrc@ent, including the requir€meob of section 16
regarding safety rcquir€mexrts prior to e,ocroaching on BNSF Right-of-Way. The installation coartactor must
present and mainain a cqpy of the executed agree,meirt on site for the duration of the installation activities.
Please note that a copy of the executed agreement must be available rryon r€quest at job srt{s) allowing
authorization to do the work.
If you need additional information please coutact me at [phone].
Sincereln
Katie Robles
lvlaoager P€rmits
Enclozurr
w i ls o n c o mn ant,. ut i I i t-t'. i c@' w i I s o nc o. c om
Gleon Monti - BNSF Roadmaster - Glem [e-mail]
Heather Pederse,r - BNSF Fngrnetr - Heather.Pedcrsen@bnsf,com
Jerry Speoht - BNSF Signals - [e-mail]
cc:
2.
3.
4.
5.
Tracklng #2047039
(Electric Light, Power Supply,pec'tive or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective February 26th, 2021 (the
"Effestive Date") by and between BNSF RAILWAY COMPANY, a Delauare corporation ('Licensofl) and PACIFICORP,
an Orego n corporation ("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, 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
supportlng or containing structures (collectively, the "Electric Supply Llno"), across or along Licensor's rail corridor
at or near the station of Klamath Falls, County of Klamath, State of Oregon, Line Segment 0639, Mile Post 1.55 as
shown on the attached Drawing No. 80432, dated December 8, 2020, atlached hereto as Exhiblt "A" and
incorporated herein by reference (the "Premises').
Term. This License shall commence on the Efiective 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 lmprovements of Llcensor or Llcensor's existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere wlth the use, repair, maintenanc-e or
replacement of such improvements.
Use of the Premises. Licensee shall use the Premises solely for constructlon, malntenance, and use of the Electrh
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 Eight Thousand Six Hundred
Twenty and No/100 Dollars ($8,620.00) as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "costn or "costs" and "expense" or "expenses* includes, but is not limited
to, actual labor and material costs including all assignable additives, and material and supply costs at
current value where used.
7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs and
expenses incurred by Licensor in connection with Licensee's use of the Premises or the presenoe,
construction and maintenance of the Elec,tric Supply Line, including but not limited to the furnishing of
Llcensor's flaggers and any vehicle renlal costs incured, inspection coordination, safety, mobilization
and/or other observation services described in this License (collectively, the 'Services*). Licensee shall
bear the cost of the Servlces when deemed necessary by Lbensor's representative. Flagging costs shall
include, but not be limited to, the following: pay for at least an eight (8) hour basic day with time and one-
half or double time for overtime, rest days and holidays (as appllcaHe); vacation allowance; paid holldays
6.
-1-
Form421:. Rev.201S)916
8
Tracking #20€7039
(as applicable); railway and unemployment insurance; public liability and property damage insunance;
health and welfare beneffis; transportation; meals; lodging and supeMsion. 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 Sectlon 7.
7.3 Licensor, at its sole discretion, may elect to designate a third party (the "Schedullng Agenf'), to perform
and/or arrange for the performance of the Services.
Pavment Terms. All invoices are due thirty (30) days after the date of invoice, !f Licensee fails to pay any monies
due to Licensor within thirty (30) days afier 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
Sfieet Joumal in the preceding December plus two and one-half percent (2-112o/o), or (ii) the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
Reserved Riqhts of Use. Licensor excepts and reserves the right, to be exercised by Licensor and any other part'es
who may obtain written permission or authori$ from Licensor:
9.1 to maintain, use, operate, repair, replace, modiff 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 character upon, over, under or across the Premises existing as of the Effective Date;
9.3
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
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 interbrence with the use of the Premises by
Licensee for the purpose specified in Section 4 above.
10.Riqhtto Reouire Relocation. lf at any time during the term of this License, Licensor desires the use of its rail conidor
in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Electric Supply Line, Licensee
shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make
such changes in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the Electric Supply
Line, or the construction of a new eleclric 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 Licenso/s request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Suoplv Line.
1'1.1 Licensee shall not enter the Premises or oomrnence construction unless accompanied by Licenso/s
representative, the Scheduling Agent or its designee. Licensee shall notify Licensor's Roadmaster, Glenn
Monti at [e-mail], telephone [phone], 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 notiff Licensor of Licensee's entry onto the Premises
at the telephone number above as soon as practicable and shall promptly thereafler follow up with written
notice of such entry.
Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while
on the Premises.
I
9.2
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11.2
Form 421; Rev. 20190916
Tracking #20S7039
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks
to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee fur purposes of this Lbense.
11.5 Under no conditions 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 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
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 exlstence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe
operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. If
ordered to cease using the Premises at any tirne by Licensor's personnel due to any hazardous condition,
Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that
Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature
thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe.
Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the
liability allocation provided by this License.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Eleclric Supply Line in such a
manner and of such materialthat 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'tivities 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. W'lthin fifteen (15) days
after completion of the construction of the Elec{ric Supply Line or the performance of any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to
substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in
writing. On or before expiration or termination of this License br any reason, Licensee shall, at its sole cost
and expense, surrender the Premises to Licensor pursuant to the terms and conditions set forth in Section
24 hereof.
11.7 Licensor may direct one or more of its field engineers or inspectors to observe or inspec-t 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 Licenso/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 allterms hereof. Neither the
exercise ol nor the failure by Licensor to exercise, any right granted by this Section will alter in any way
the liabili$ 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 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. Licensofs 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.
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F orm 421', Rev. 20'l 9091 6
Tracking #20€7039
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 induc-tion, 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, mdio, 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 the judgment of Licenso/s representative, to eliminate such interference. The cost of such
protective devices and their installations shall be bome solely by Licensee. lf any of the interference
covered by this Section 11.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediate 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 Eleclric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, until the protec'tive devices andlor replacement equipment
required by this Section {1.9 have been installed, put in operalion, tested, and found to be satisfactory to
conect the i nterferen ce.
1 1.10 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles
on the Premises, if any, and will at all times keep the space around such poles free of such material, and if
removal of such combustible material shall not be attended to with fifteen (15) days after having been
requested by Licensorto do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incuned.
12. Borino and Excavation.
12.1 Priorto Licensee conducting any boring, excavation, or similarwork on or about any portion of tha Premises,
Licensee shall contact the applicable State's call-before-you-dig utility location service to have 3d parties
mark the location of utilities. Licensee shall explore the proposed location br 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, hgl4rye!, 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
Licensor's underground lines, utilities, and pipelines at or near the vicinity of the proposed Electric Supply
Line by contacting Licenso/s Telecommunications Helpdesk, cunently 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 applicable, identifo the location of such lines on the Premises pursuant to
Licensods standard procedures. Licensor does not warrant the accuracy or completeness of information
relating to subsurface conditions of the Premises and Licensee's operations will be subjeet 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 matedal 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 Licenso/s sole discretion, a remedial plan to deal with the granular material, Once Licensor
has approved any such remedial plan in writing, Licensee shall, at Licensee's sole cost and expense, carry
out the approved plan in accordance with allterms thereof and hereof.
12.3 Any open hole, boring, or well constructed on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings constructed on the Premises by Licensee shal! be:
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Form 421; Rev. 20190916
Trad<ing #20€7039
12.3.1 filled in to surrounding ground levelwith compacted bentonita grout; or
12.3.2 othenrvise secured or retired in accordance wtth any applicable Legal Requirement. No excavated
materials may remain on Licensor's propefi 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) "lndemnitees" means Licensor and Licensofs affiliated companies,
partners, successorc, assigns, legal representiatives, officers, directors, shareholders, employees, and
agents; (b) "Liabilities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments, and expenses (including, without limitation, court @sts, reasonable
attomeys' fees, costs of investigation, removal and remediation, and govemmental oversight costs)
environmental or othenrise; and (c) "Licensee Pailies" means Licensee and Licensee'g officers, agents,
invitees, licensees, employees, or contractors, or any party directly or indirectly employed by any of them,
or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED By LAw' LTCENSEE SHALL, AND SHALL GAUSE rrs
CONTRACTOR TO, RELEASE, lNDElrlNlFY, DEFEND AND HOLD HARMLESS INDEMNITEES FOR,
FROM, AND AGATNST ANY AND ALL LIABIL|TIES OF ANY NATURE, KIND, OR DESCRIPTTON
D|RECTLY OR INDTRECTLY ARISING OUT OF, RESULTTNG FROM, OR RELATED TO (tN WHOLE OR
rN PART):
13,2.1 THIS LICENSE, INCLUDING, WTHOUT LIMITATION,ITS ENVIRONMENTAL PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LIGENSE,
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
CONTRIBUTEDTO BY UCENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY UCENSEE PARTY
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, AND
WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARITiLESS 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
GoMPREHENSIVE ENVIRONiTIENTAL RESFONSE, COMPENSATTON, AND LIAB|LIW ACT, AS
AMENDED ('CERCLA") OR OTHER ENVTRONMENTAL LAWS (DEFINED BELOW). NOTHING lN
THIS LICENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDETINITEE'S
COMMON CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND INDEI'NITEES FOR ANY LIABIUTTES REI-ATED TO THAT CONSTRUCNON OF THIS
LICENSE. !N NO EVENT AS BETWEEN LIGENSOR AND LICENSEE AS TO USE OF THE PREMISES
AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
13.4 IF ANY EiIIPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF
ANY INDEMNITEE, TOTHE FULLEST EXTENT PERMITTED BY I-AW, LICENSEE SHALL,AND SHALL
cAusE tTs coNTRAcToR TO, RELEASE, tNDEMNtFy, DEFEND, AND HOLD THE TNDEMNTTEES
HARMLESS FROM AND AGATNST ANY UABTLTTTES AR|SING OUT OF OR RELATED TO (!N WHOLE
5
Form 42'l; Rev. 20190916
14.
15.
Tracking #20€7039
oR tN PART) ANY SUCH ASSERTTON INCLUUNG, BUT NOT LIMITED TO, ASSERTTONS OF
EMPLOYMENT BY AN INDE}INITEE REI.ATED TO THE FOLLOWING OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL Ei,PLOYERS'LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFEW AND HEALTH ACT, THE
RESOURGE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIIUIATELY CAUSED BY THE GROSS NEGLIGENCE OR UVILLFUL MISCONDUCT OF ANY
INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILTTIES, INCLUDING THOSE ARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LIABILITY OF ANY INDEMT{ITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any lndemnitee by any entity, relating to any mafter covered by this Licenee 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'hes, litigation and appeal expenses, settlement payments, and amounts paid
in satisfaction of judgnrents.
Personal Propertv Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEMNITEE wlLL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
lnsurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of this License the
following insurance coverage:
15.1 Commercia!General Liabilitv'CGL" lnsurance.
a. The policy will provide a minimum of $2,000,000 per oocunence and an aggregate limit of at least
$4,000,000 but in no event will the coverage be in an amount lees than the amount otherwise canied
by Licensee. Coverage must be purchased on a post 2004 ISO occurence form or equivalent and
irrclude coverage for, but not limited to, the following:. Bodily lnjury and Property Damage. Personal lnjury and Advertising lnjuryr Fire legalliability. Products and mmpletd oparations. Contractual Liability for an "lnsured Contract' consistent with the definition under the standad ISO
general liabili$ policy form.
b. The parties agree that the workers'compensation and employers' liability relaled 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 BusinessAutomobile lnsurance.
a. The insurance will provide minimum coverage with a combined single limit of at least $1,000,000 per
accklent, and lnclude @verage for, but not limited to the following:
' Bodily injury and property damage.. Any and allvehicles wned, used or hired.
6
Fom 421; Rev. 2019(F16
Tnacking *f20€7039
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 an favor of and acceptable to Licensor.. Additional insured endorsement in favor of and acceptrable to Licensor.. Separation of insureds.. The policy shall be primary and non-contdbuting with respect to any insurance canied by Licensor.
15.3 Workers' Compensation and Emplovers' Liabilitv lnsurance.
a. The policy will provide coverage of all employees performing any part of the work or services
including coverage for, but not limited to:r Licensee's statutory liability underthe 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' Lhbility (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:. VV'aiver 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 occurence and $6,000,000 in the aggregate. The coverage obtained
underthis polby shall only be effective during the initial installation and/or construction of the Electric Supply
LiNe. THE CONSTRUCTION OF THE ELECTRIC SUPPLY UNE SHALL BE COMPLETED WTHIN 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 ISO form CG 00 351204 and include the follorring:. Endorsed to include the Pollution Exclusion Amendment.r 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 orwork 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 propsrg 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 Licenso/s Blanket Railroad Protective Liability lnsunance Policy available to
Licensee or its contractor. The limits of coverage are the same as above. The cost is $506.00.
d Licensee elects to participate in Licenso/s Blanket Policy;
o Licensee declines to participate in Licensor's Blanket Policy.
15.5 OtherReouirements.
15.5.1 Where allowable by law, no exclusion for punitive damages may be included in any policy.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. ln addition, Licensee's insurers, through the terms of the policy or policy endorsement,
7
Form 421; Rev. 20190916
Trad<ing #20-67039
waive their right of subrogation against Licensor for all claims and suits. Licensee further waives
its right of re@very, and its insurers also waive their right of subrogation against Licensor for bss
of Licensee's owned or leased property or property under Licensee's Gare, custody, or control.
15.5.3 Allocated Loss Expense, including bul not limited to defense costs and expenses, will be in addition
to all policy limits for ooverage under the insurance requirements.
15.5.4 Licensee is not allowed to self-insure without the prior wriften consent of Licensor. lf Licensor
allows Licensee to self-insure, Licensee shall directly cover any self-insured retention or other
financial responsibility for claims in lieu of insurance. Any and all Licensor liabilities that would
othenrise be covered by Licensee's insurance in accordance with the proMsions of this agreement,
will be covered as if Licensee elected not to include a self-insured retention or other financial
responsibili$ 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
req u ired cove rage(s), e ndorsements, and amend ments.
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 materia! change of coverage.
15.5.7
15.5.8
15.5.9
Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or
with a current Bests 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.
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,
Licensee represents that this License has been thoroughly revierirred by Licensee's insurance
agent(s)/broker(s), and that Licensee has instructed them to procure the insurance coverage
required by this License.
15.5.10 Not more ftequently than once every five year, Licensor may, at its discretion, reasonably modifu
the insurance requirements to reflect the then-cunent risk management practices in the railroad
industry and underwriting practices in the insuranec industry.
15.5.11 lf 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 subcontrac{or shall release,
defend and indemniff Licensee to the same extent and under the same terms and conditions as
Lacensee is required to release, defend and indemniff Licensor under this agreement.
15.5.12 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.
15.5.13The fact that Licensee obtains insurance (including, without limitation, self-insurance) shall not
release ordiminish Licensee's liabilities orobligations including, without limitation, the liabilities and
obligations under the indemnig provisions of the License. Damages recoverable by Licensor shall
not be limited by the amount of the requircd insurance coverage.
15.5.14 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.
-8-
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16.
Tracking #2067039
15.5.15 lf Licensee maintains broader coverage andlor 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.
15.5.16 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 Ucensee 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.
15.5.17 For purposes of this Section 15, L'rcensor shall mean "Burlington Northern Santa Fe, LLC", "BNSF
Railway Company" and the subsidiaries, succ€ssors, assigns and affiliates of each.
COMPLIANCE WITH LAWS. REGUI.ATIONS. AND ENVIRONMENTAL MATTERS
Comoliance with Laws. Rules. and Reoulations.
16.1 Licensee shallobserve and comply with any and allapplicable federal, state, localand tribal laws, statutes,
regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction
('Lega! Requircments") relating to the construction, maintenance, and use of the Electric Supply Line and
the use of the Prembes.
16,2 Prior to entering the Premises, Licensee shall and shall cause its contracto(s) to comply with all of
Licenso/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 progmm at the
Website "www.BNSFcontractor.com" (the "Safety Orientation") within one year prior to entering upon the
Premises. Additionally, Licensee must ensure that each and every employee of Licensee, its contractors,
agents and invitees possess a card certifying completion of the Safety Orientation prior to entering upon
the Premises. Licensee must renew (and ensure that its contraclors, agents or invitees, as applbable,
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 addltional
rights-of way, easements, licenses and other agreements relating to the grant of rights and interests in
and/or access to the Premises (coll*{ively, the "Rlghts") and such other rights, licenses, permits,
authorizations, and approvals (including without limitation, any necessary local, state, federal or tribal
authorizations and environmental permits) that are necessary in order to permit Licensee to construc{,
maintain, own and operate the Eleclric Supply Line and othenrvise to perform its obligations hereunder in
accordance with the terms and conditions hereof.
16.4 Licensee shalleither require that the initial stated term of each such Rights be for a perbd 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
othenrise acquire such extensions, additions and/or replacements as may be necessary, in order to cause
the stated lerm thereof to be continued until a date that is not earlier than the last day of the term of this
License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate or
use the Electric Supply Line in accordance with the terms and conditions of this License, this License
thereby shall automatically expire upon such expiration or termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the REsource Conservation and Recovery
Act, as amended (RCRA), the Clean Water Ac1, the Oil Pollution Act, the Hazardous Materials
s
Fom 421; Rev. 20'190916
Tracking #20-67039
Transportation Act, and CERCIS (collectively refened to as the "Enyironmenhl Laws"). Licensee shall
not maintiain 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 hazadous
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 substan@s", 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 Premlses. Licensee agrees periodically to furnish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Llcenso/s Resource Operations Center at [phone]
of any knourn (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation of
Environmental Laws, or (iii) inspection or inquiry by governmental authorities charged with enforcing
Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on, from, or affecting the Premises. Licensee also shall give Licensor
imrnediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to
or othenvise cure such release or violation.
17.4 lf Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occurred or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or othenryise cure such release or violation affecting the Premises or
Licensor's right-of+ray.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises knorn
to Licensee whbh create a risk of harm to persons, property or the environment and shall take whatever
action b necessary to prevent injury to persons, property, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licenso/s request
for information regarding said conditions or activities.
prscrstME R oLWARRANTT ES
18. No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR
!N THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBYWAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WTH RESPECT TO THE PREMISES OR WHICH MAY EXIST
BY OPERATION OF LAW OR IN EQUITY,INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
I,IERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
oR lMpLtED, CONCERNTNG (A) THE SCOPE OF THE LTCENSE OR OTHER RTGHTS GRANTED
HEREUNDER TO LTCENSEE OR (B) WHETHER OR NOT LICENSEE'S CONSTRUCTTON,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WLL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WITHOUT UMIATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY
THIRD PARW.
Disclaimer of Warrantv br Quiet Eniovment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMTSES
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,l2l ; Rev. 20190916
20
Trac-l<ing #20-67039
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 conidor, Licensor shall not be liable
(i) to refund Licensee any compensation paid hereunder, except br the pto-rata part of any recuning charge paid
in advance, or (ii) for any damages or costs Licensee sustains in connection with the eviction.
LIENS AND TAXES
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 wilh respect to the Premises that is or may be
permitted by law to prevent the aftachment of any such liens to the Premises; provided, however, that failure of
Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Sectlon 21 or any
other Section of this License.
Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, 'Taxee") levied or
assessed by any govemmental 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 "lmprovements") or
any Taxes levied or assessed against Licensor or the Premises that are attributable to the lmprovements.
DEFAULT. TERMINATION. AND SURRENDER
Default and Termination. ln addition to and not in limitation of Licensor's right to terminate for failure to provide
evidence of insurance as required pursuant to the terms of Section {5, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thirty (30) days after wriften notice is provided to Licensee by
Licensor, or in case of any assignment or tnansfer of this License in violation of Section 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination
upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this
License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability
to enforce any Section of this License. The 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 Licenso/s rights to terminate this License for failure to provide evidence
of insurance or occurrence of defaults as described above, this License may be terminated by either party,
at any time, by serving thirty (30) days'written notice of termination upon the other party. Such termination
shall not release either party hereto from any liability or obligation under the License, whether of indemnily
or othenrise, resulting from any acts, omissions or events happening prior to the date of termination or
thereafier in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
22.
23.
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Fotm421i Rev.20190916
Tracking f20S7039
24.1.1 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
Eleciric Supply Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premises or Licensor's other property arising from, growing
out of, or connecled with Licensee's use of the Premises;
24.1.3 remedy any unsab 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 surrender the Premises to Licensor
or if Licensee fails to complete its obligatbns under Section 24.1 above (the "Restoratlon Obligations"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee
to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall
continue in efiect until the Premises are surrendered and the Restoration Obligations are completed.
Neither termination nor expiration shall release Licensee from any liability or obligation under this License,
whether of indemnity or 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 Restoration
Obligations are completed.
24.3 lf Licensee faib 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) days after receipt of bill therefor, reimburse Licensor for cost lncurred, (ii) upon written notice to
Licenseo, take and hold the Electric 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 equi$ against Licensee br failure to so restore.
Further, if Licensor has consented to the Eleclric 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.
MISCELLANEOUS
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.
26. Assignment.
26.1 Licensee may not sell, assign, tnansfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operatbn of law, merger, or othenrise) without the prior written consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Sectlon 26, the word "assign" shall include without limitation (a) any sale of the equity
interests of Licensee following which the equity interest holders of Licensee immediately prior to such sale
own, directly or indirectly, less than 50o/o of the combined voting power of the outstanding voting equity
interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization,
recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equrty interest holderc of
Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
-12-
F orm 421', Rev. 201 9091 6
27
28.
Tracking #20-67039
or indirectly, at least 50o/o ol the combined voting power of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WTH THE I-AND
WTHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR. SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purported Assignmenf') 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 agreernent 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 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 Licensor br 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 Section 26.3 shall survive the
expiration or earlier termination of this Liccnse.
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 other writing required or permitted to be given hereunder by one party to the other
shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in
the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized
ovemight delivery service, addressed to the party to be notified at the address for such party specified below, orto
such other address as the party to be notified may designate by giving the other party no less than thirty (30) days'
advance written notice of such change in address.
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 Gompany
2650 Lou Menk Drive
Fort Worth, D( 76131
Attn: Senior Manager Real Estate
lf to Licensee PacifiCorp
825 NE Multnomah St., Suite 1700
Portland, OR 97232Attn: lmogen Taylor
Survival. Neithertermination norexpiration will release either party from any liabili$ orobligation underthis License,
whether of indemnity or otheruvise, 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.
Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
29
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Form 421; Rev. 20100916
30
31
32.
33.
34.
35.
Tracking #2047039
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.
Sev-erabilitv. To the maximum extent possible, each provision of this License shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provisbn of this License shall be prohibited by, or held
to be invalid under, applicable law, such provision shall be inefieclive solely to the extent of such prohibition or
invalidig, and this shall not invalidate the remainder of such provision or any other provision of this License.
lnteqration. This License is the full and complete agreement between Licensor and Licensee with respect to all
matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the
parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended
to terminate any surviving obligation of Licensee or Licensee s obligation to defend and hold Licensor harmless in
any priorwritten 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 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 sour@ of the draftsmanship; both parties hereby agree that this License shall not be subiect to
the principle that a contract would be construed against the party which drafted the same. Article titles,
headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of
reference only and are not intended to be a part or to affest the meaning or interpretation hereof. The
exhibit or exhibits referred to herein shall be construed with and as an integral part of this License to the
same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by '\ivithout limilation"
whether or not they are in fact followed by such words or words of like import; '\ilriting", 'lvritten" and
comparable terms refer to printing, typing, Iithography and other means of reproducing words in a visible
form; references to any person are also to that person's successors and permitted assigns; "hereof',
"herein", "hereunder'' and comparable terms refer to the entirety hereof and not to any particular arlicle,
section, or other subdivision hereof or aftachment 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.
Counterparts. This License may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature pages from
any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts
of this License may also be exchanged electronically and any electronic version of any party's signature shall be
deemed to be an original signature for all puposes.
Licenso/s Reoresentative. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF Railway
Company.
END OF PAGE -SIGNATURE PAGE FOLLOWS
36.
37
14
Form'121; Rev. 20190916
TraddrU #z0{il0gg
This Licenee has been duly executed byUre parUes hereto ag of the Efiedh,e Date.
UCEI{SOR:
BNSF Relluyry Gompany, a Dehuaarc corpordion
By: Jonee Lang LaSalle Brokenage, lrrc.
42@ Buc*ingham Road, Suite 110
Fort Worth, TX 76155
Sb-z Korrnoo-By:
Ti0e:
Data:
Date:
0
Vice President
Februarv 22.2021
UGEilSEE:
PaclfiGorp, an Ongon corporatbn
Brian Fritz D[ihlly srgrrcd by Brbn Frits
Datq 2021.0 1 20 15:28:25 -08'00'By:
Tlle: Direcbr,TransmbgionScrvioee
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Fom 't2t; Rev. 20100910
COORDINATE SYSTEM: OR S TRACKTNG NO. 20€7039
(ot6lFlNllftlol
lr.tut
o.
=
EXHIBIT IIAII
ATTACH ED TO CONTRACT BEMEEN
BNSF RAILWAY COMPANY
AND
N
PACIFICORP
1lN=75FT SECTION:I TOVINSHIP & RANGE:IV
0639 MP: jli[5 MERIDIAN:12t8t?O20 ift
{r1
tcf.?-.'#i
b
82'185',i"l-:t15'
tP^r:55\zlatrt!,421rlii2t?
\bot
NOTE:Squrcei Esri,
GNES/Airbus
GeoEye, Ea rfi star Geographics,
DS,, AeroGRlD, lGN, and the GIS User
EXISTING ELECTRIC AGREEMENT IS UNKNOWN Qornmunity
o NEW75'POLES TO REPUCE
EXISTING STRUCTURES.TOTAL LENGTH ON BNSF R/W IS 282'
DESCRIPTION OF WRES OVER TRACK
WRES LOCATEDAS SHOW\I BOLD
TYPE NUMBER VOLTAGE
12.5 KV
DISTANCEABOVE
TOP OF RAIL
CLEARS RAILWAY
COMPANYSWRES
ELECTRIC 3ELECTRIC 1 NEUTRAL
KLAMATH FALLS
COUNTY OF KIAMATH BMNSTATE OF OR
35'
DRAWNG NO.80432
JLL Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Rd., Suite 110
Fort Worth, Texas 76155
lel+1817-23G2600, fax +1 817 30ffi265
20-67041
January 5,2021
PacifiCorp
Attention: Mr. lmogen Taylor
825 NE Multnomah St.
Portland, OR 97232
Dear Mr. Taylor:
Attached please lind a copy of the requested contract for execution by an offtcial authorized to execute contract
agreements on behalf of your company. Please print two (2) copies execute and return both aoies with orioid
sionature for completion on part of BNSF Railway Company ("BNSF') to this office, along with the following
requirements:
o A check in the amount of $8,620.00 payable to BNSF Railway Company which covers the contract fee.
Please note the agreements cannot be executed by BNSF without an approved insurance certilicate. lf there are
any issues with your insurance, you wil! be contacted by a member of the Risk Management team of BNSF
Railway.
1. A Certificate of lnsurance as required in the agreement.2. A separate policy for Railroad Protective Liabili$ Insurance as required in the agreement (ORIGINAL
POLICY UUST BE PROVIDED). BNSF Railway Company will be the only insured party; OR;
ln lieu of providing a separate policy for Railroad Protective Liabllity Insurance, you may participate in the
BNSF's Railroad Protective Policy by checking the appropriate box in the contract and including an additional
$506.00 with your check.
PLEASE ADVISE IF THIS PROJECT !S ARRA FUNDED.
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 prior to entering upon the
premises. The certification is good for one year, and each person entering the premises must possess the card
certiffing completion.
Acceptance and deposit of any check by BNSF does not constitute an agreement between BNSF and Licensee
for the requested license. BNSF shall not be obligated to hold the check in a separate fund, but may commingle
the funds with other funds of BNSF, and in no event shall BNSF be responsible for interest on said funds.
The enclosed permit is not a binding agreement and shall become binding only when, and it it is executed by you
and fully approved and executed by BNSF Raitway Company. Upon completion on behalf of BNSF, one fully
executed counterpart will be retumed for your records.
The specifications/plans you provided may differ from BNSF's minimum specification
requirements. Therefore, prior to your installation, please review the Exhibit A to determine the
specifications necessary for your installation.
Please be informed that if contracts, fees, and insurance are not returned within sixty (60) days, the processing
fee will increase to $1,600.00.
Sincerely,
Katie Robles
Manager - Permits
Attachment
1
Tracking #20-67U1
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS ORALONG RAILWAY PROPERTY
(Electric Light, Power Supply, lrrespective 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 ("Licenso/') and PAGIFIGORP,
an Oregon corporation ("Licensee").
!n 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, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance
with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings
and Specifications"), an electric supply line containing a maximum of three (3) conductors, together with its
supporting or containing structures (collectively, the "Electric Supply Line"), across or along Licenso/s rail corridor
at or near the station of Klamath Falls, County of Klamath, State of Oregon, Line Segment 0639, Mile Post 1.55 as
shown on the attached Drawing No. 80430, dated December 8, 2020, attached hereto as $!!!!!-f and
incorporated herein by reference (the "Premises").
Term. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
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.
GOMPENSATION
License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Eight Thousand Six Hundred
Twenty and No/100 Dollars ($8,620.00) as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "cost" or "costs" and "expense" or "expenses" includes, but is not limited
to, actual labor and material costs including all assignable additives, and material and supply costs at
current value where used.
7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs and
expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence,
construction and maintenance of the Electric Supply Line, including but not limited to the furnishing of
Licensor's flaggers and any vehicle rental costs incurred, inspection coordination, safety, mobilization
and/or other observation services described in this License (collectively, the "Seruices"). 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 days and holidays (as applicable); vacation allowance; paid holidays
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(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 Agenf'), to perform
and/or arrange 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) days after the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
Street Journal in the preceding December plus two and one-half percent (2-112%), or (ii) the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
Reserved Riqhts 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, modiff 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 character upon, over, under or across the Premises existing as of the Effective Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities,
structures and related appurtenances upon, over, under or across the Premises; or
9.3 to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided Licensor
uses all commercially reasonable efforts to avoid material interference with the use of the Premises by
Licensee for the purpose specified in Section 4 above.
10 Rioht to Require Relocation. 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 Electric Supply Line, Licensee
shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make
such changes in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the Electric Supply
Line, or the construction of a new electric line to replace the Electric Supply Line. Notwithstanding the foregoing,
Licensee agrees to make all emergency changes and minor adjustments, as determined by Licensor in its sole
discretion, to the Electric Supply Line promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Supplv Line.
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by Licensor's
representative, the Scheduling Agent or its designee. Licensee shall notiff Licensor's Roadmaster, Glenn
Monti at [e-mail], telephone [phone], 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 notif, 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.
Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while
on the Premises.
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11.3 \Mrile on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks
to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
11.5 Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity
using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee
has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all
activities on and about the Premises, 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 propefi of Licensor, (ii) the safe
operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. !f
ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition,
Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that
Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature
thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe.
Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the
liability allocation provided by this License.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Electric Supply Line in such a
manner and of such material that the Electric Supply Line will not at any time endanger or interfere with (i)
the existence or use of present or 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 fifteen (15) days
after completion of the construction of the Electric Supply Line or the performance of any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to
substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in
writing. On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost
and expense, surrender the Premises to Licensor pursuant to the terms and conditions set forth in Section
24hereol.
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. !f at any time Licensee shall, in the sole judgment of
Licensor, failto properly perform its obligations underthis Section 11, Licensor may, at its option and at
Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of
its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Section 8. Licensor's failure to perform any obligations of Licensee shall
not alter the liability allocation hereunder.
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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11.9 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 currents, with the facilities of Licensor or of any lessee or licensee of Licensor, or in any manner
interfere with the operation, maintenance, or use by Licensor of its right-of-way, tracks, structures, pole
lines, signal and communication lines, radio, or other equipment, devices, other property or appurtenances
thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and furnish such
protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be
necessary, in the judgment of Licensor's representative, to eliminate such interference. The cost of such
protective devices and their installations shall be borne solely by Licensee. lf any of the interference
covered by this Section 11.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediate corrective action, Licensee, upon notice from Licensor, shall
either, at Licensor's election, cease using the Electric Supply Line for any purpose whatsoever and remove
same, or reduce the voltage or load on the Electric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, until the protective devices and/or replacement equipment
required by this Section {1.9 have been installed, put in operation, tested, and found to be satisfactory to
correct the interference.
11.10 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles
on the Premises, if any, and will at all times keep the space around such poles free of such material, and if
removal of such combustible material shall not be attended to with fifteen (15) days after having been
requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incurred.
12. Borino and Excavation.
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-you-dig utility location service to have 3rd 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, provided, however, that in lieu of the foregoing handtool exploration,
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
Licensor's underground lines, utilities, and pipelines at or near the vicinity of the proposed Electric Supply
Line by contacting Licensor's Telecommunications Hetpdesk, currently at 1-800-533-2891 (option 1, then
option 7), at leastten (10) business days priorto 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, identiff the location of such lines on the Premises pursuant to
Licensor's standard procedures. Licensor does not warrant the accuracy or completeness of information
relating to subsurface conditions of the Premises and Licensee's operations will be subject at all times to
the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil
investigation must be performed by Licensee and reviewed by Licensor prior to construction. This study is
to determine if granular material is present, and to prevent subsidence during the installation process. 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, catry
out the approved plan in accordance with all terms thereof and hereof.
12.3 Any open hole, boring, orwell constructed on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings constructed on the Premises by Licensee shall be:
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12.3.1 filled in to surrounding ground levelwith compacted bentonite grout; or
12.3.2 otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated
materials may remain on Licensor's property for more than ten (10) days, but must be properly
disposed of by Licensee in accordance with applicable Legal Requirements.
LIABILITY AND INSURANCE
13. Liabilitv and lndemnification.
13.1 For purposes of this License: (a) "lndemnitees" means Licensor and Licenso/s affiliated companies,
partners, successors, assigns, legal representatives, officers, directors, shareholders, employees, and
agents; (b) "Liabilities" means allclaims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable
attorneys' fees, costs of investigation, removal and remediation, and governmental oversight costs)
environmental or otherwise; and (c) "Licensee Parties" means Licensee and Licensee's officers, agents,
invitees, licensees, employees, or contractors, or any party directly or indirectly employed by any of them,
or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE lTS
CONTRACTOR TO, RELEASE, INDEiINIFY, DEFEND AND HOLD HARTTILESS INDEMNITEES FOR,
FROi,t, AND AGATNST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR DESCRIPTION
DIRECTLY OR |NDIRECTLYARISING OUT OF, RESULTING FROM, OR RELATED TO (lN 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 ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, AND
WILL INDEiiNIFY, DEFEND, AND HOLD THE INDEMNITEES HAR]IILESS FROtti ANY AND ALL
CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR !S A GENERATOR,
OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, AS
AMENDED ("CERCLA") OR OTHER ENVTRONMENTAL LAWS (DEFINED BELOW. NOTHING tN
THIS LICENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEiIINITEE'S
COiIIMON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S
coMMoN CARR|ER DEFENSES, LTCENSEE AGREES TO INDEMNIFY, HOLD HARIUILESS, AND
DEFEND INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES
AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
IF ANY EiIPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN Ei,IPLOYEE OF
ANY INDEMNITEE, TO THE FULLEST EXTENT PERi'ITTED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNTEES
HARMLESS FROM AND AGATNSTANY LIABILITIES ARISTNG OUT OF OR RELATED TO (lN WHOLE
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oR lN PART) ANY SUCH ASSERTION |NCLUDING, BUT NOT UmlTED TO, ASSERTTONS OF
EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT, THE SAFEW APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFEW AND HEALTH ACT, THE
RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LIABILITY OF ANY INDEI,INITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any lndemnitee by any entity, relating to any matter covered by this License for
which Licensee has an obligation to assume liability for and/or save and hold harmless any lndemnitee.
Licensee shall pay all costs and expenses incident to such defense, including, but not limited to, reasonable
attorneys'fees, investigators'fees, litigation and appealexpenses, 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 MATERIALS UPON THE PREMISES WLL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAi,IAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
lnsurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of this License the
followi ng insurance coverage:
15.1 CommercialGeneral Liability"CGL" lnsurance.
a. The policy will provide a minimum of $2,000,000 per occurrence and an aggregate limit of at least
$4,000,000 but in no event will the coverage be in an amount less than the amount otherwise carried
by Licensee. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and
include coverage for, but not limited to, the following:. Bodily lnjury and Property Damage. Personal lnjury and Advertising lnjury
' Fire legal liability. Products and completed operations. Contractual Liabili$ 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' liabilig 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.
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.r Any and allvehicles owned, used or hired.
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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' Compensation and Emolovers' Liabilitv lnsurance.
a. The policy will provide coverage of all employees performing any part of the work or services
including coverage 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 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 Liability 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 CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE GOMPLETED wlTHlN ONE
(1) 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 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 elecb to participate in Licenso/s Blanket Policy;
Licensee declines to participate in LicensoPs 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. ln addition, Licensee's insurers, through the terms of the policy or policy endorsement,
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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 cover any self-insured retention or other
financial responsibility for claims in lieu of insurance. Any and all Licensor 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.
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 current 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 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.
15.5.10 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modiff
the insurance requirements to reflect the then-current risk management practices in the railroad
industry and underwriting practices in the insurance industry.
15.5.11!f 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 indemnify Licensee to the same extent and under the same terms and conditions as
Licensee is required to release, defend and indemnifiT Licensor under this agreement.
15.5.12 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.
15.5.13The 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 coverage.
15.5.14 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.
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15.5.15 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.
15.5.16 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.
'15.5.17 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC", "BNSF
Raitway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WITH LAWS. REGULATIONS. AND ENVIRONMENTAL MATTERS
16. Compliance 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 contractor(s) to comply with all of
Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees,
contractors, agents or invitees entering upon the Premises completes the safety orientation program at the
Website "www.BNSFcontractor.com" (the "Safety Orientation") within one year prior to entering upon the
Premises. Additionally, Licensee must ensure that each and every employee of Licensee, its contractors,
agents and invitees possess a card certifying completion of the Safety Orientation prior to entering upon
the Premises. Licensee must renew (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 necessary in order to permit Licensee to construct,
maintain, own and operate the Electric Supply Line and otherwise to perform its obligations hereunder in
accordance with the terms and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does not
expire, in accordance with its ordinary terms, prior to the last day of the term of this License or, if the initial
stated term of any such Right expires in accordance with its ordinary terms on a date earlier than the last
day of the term of this License, Licensee shall, at its cost, exercise any renewal rights thereunder, or
otherwise acquire such extensions, additions and/or replacements as may be necessary, in order to cause
the stated term thereof to be continued until a date that is not earlier than the last day of the term of this
License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate or
use the Electric Supply Line in accordance with the terms and conditions of this License, this License
thereby shall automatically expire upon such expiration or termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery
Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
-9-
Form421t Rev.20190916
Tracking #20-67o4.1
Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposalfacility, or underground storage tank, as defined by
Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as
"hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,
or local governmental agency or body on the Premises. Licensee agrees periodically to furnish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800) 832-U52
of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation of
Environmental Laws, or (iii) inspection or inquiry by governmental authorities charged with enforcing
Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on, from, or affecting the Premises. Licensee also shall give Licensor
immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to
or otherwise cure such release or violation.
17.4 lf Licensor has notice from Licensee or othenrvise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occurred or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or
Licensor's right-otway.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known
to Licensee which create a risk of harm to persons, property or the environment and shall take whatever
action is necessary to prevent injury to persons, property, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensods request
for information regarding said conditions or activities.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR
IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES ORWHICH MAY EXIST
BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANW OF
MERGHANTABILITY, HABITABILITY OR FITNESS FORA PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
oR IMPLIED, GONCERNING (A) THE SGOPE OF THE LTCENSE OR OTHER RTGHTS GRANTED
HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LTCENSEE',S CONSTRUGTTON,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WLL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY
THIRD PARTY.
Disclaimer of Warrantv for Quiet Enjovment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREiTIISES
NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS MADE.
19.
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Fonn421i Rev.20190916
22
23
Tracking #20-67o4.1
20.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 recuning charge paid
in advance, or (ii) for any damages or costs Licensee sustains in connection with the eviction.
LIENS AND TAXES
21. Liens and Charqes. 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; provided, however, that failure of
Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 21 or any
other Section of this License.
Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or
assessed by any governmental or quasigovernmental body upon the Electric Supply Line or any other
improvements constructed or installed on the Premises by or for Licensee (collectively, the "lmproyements") or
any Taxes levied or assessed against Licensor or the Premises that are aftributable to the lmprovements.
DEFAULT. TERMINATION. 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 Section 15, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thirg (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Section 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination
upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this
License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability
to enforce any Section of this License. The 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 insurance or occurrence of defaults as described above, this License may be terminated by either party,
at any time, by serving thirty (30) days' written notice of termination upon the other party. Such termination
shall not release either pafi hereto from any liability or obligation under the License, whether of indemnity
or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or
thereafter in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
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F orm 421 ; Rev. 201 9091 6
Tracking #20-67o/.1
24.1.1 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 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 surrender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration Obligations"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee
to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall
continue in effect until the Premises are surrendered and the Restoration Obligations are completed.
Neither termination nor expiration shall release Licensee from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, 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 Electric Supply Line and
the other lmprovements or otherwise restore the Premises, and in such event Licensee shall, within thirty
(30) days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notice to
Licensee, take and hold the Electric Supply Line and the other lmprovements and personal propefi 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 equi$ 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.
[,IISCELLANEOUS
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.
26. Assiqnment.
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 othenrise) without the prior written consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of the equity
interests of Licensee following which the equity interest holders of Licensee immediately prior to such sale
own, directly or indirectly, less than 50o/o of the combined voting power of the outstanding voting equity
interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization,
recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
-12-
Form421; Rev.20190916
Tracking #2OS7o4.1
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 LICENSE SHALL NOT RUN WITH THE LAND
WTHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE ]N
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purported Assignmenf') to another party (a "Purported Transferee"),
the Purpoiled 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. !n addition to and not in limitation of the foregoing, Licensee, for itselt
its successors and assigns, shall indemniff, 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 Section 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.
27 Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to the other
shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in
the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized
overnight delivery service, addressed to the parly to be notified at the address for such party specified below, or to
such other address as the party to be notified may designate by giving the other party no less than thirty (30) days'
advance written notice of such change in address.
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
2650 Lou Menk Drive
FortWorth, TX 76131
Attn: Senior Manager Real Estate
lf to Licensee:PacifiCorp
825 NE Multnomah St.
Portland, OR 97232Attn: lmogen Taylor
28 Survival. Neither termination nor expiration will release either party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date when the Electric Supply Line and the other lmprovements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
29
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Form421; Rev.20190916
30.
Tracking #2U67041
Apolicable 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
as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held
to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or
invalidi$, and this shall not invalidate the remainder of such provision or any other provision of this License.
lnteqration. This License is the full and complete agreement between Licensor and Licensee with respect to all
matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the
parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended
to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in
any prior written agreement between the parties.
Joint and Several Liabilitv. If Licensee consists of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreements of such parties.
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.
lnterpretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based
upon the source of the draftsmanship; both parties hereby agree that this License shall not be subject to
the principle that a contract would be construed against the party which drafted the same. Article titles,
headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of
reference only and are not intended to be a part or to affect the meaning or interpretation hereof. The
exhibit or exhibits referred to herein shall be construed with and as an integral part of this License to the
same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import; 'Writing", 'Written" and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a visible
form; references to any person are also to that person's successors and permitted assigns; "hereof',
"herein", "hereunde/' and comparable terms refer to the entirety hereof and not to any particular article,
section, or other subdivision hereof or attachment hereto; references to any gender include references to
the masculine or feminine as the context requires; references to the plural include the singular and vice
versa; and references to this License or other documents are as amended, modified or supplemented from
time to time.
Counterparts. This License may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature pages from
any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts
of this License may also be exchanged electronically and any electronic version of any party's signature shall be
deemed to be an original signature for all purposes.
Licensor's Representative. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF Railway
Company.
END OF PAGE - SIGNATURE PAGE FOLLOWS
33.
u.
35.
31
32.
36.
37
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F orm 421 ; Rev. 20'l 9091 6
Tracking#2067(X1
This License has been duly executed by the parties hereto as of the Efiecdive Date.
LICENSOR
BNSF Ralhray Gompany, a Delaware corporation
By: Jones Lang LaSalle Brokeege, lnc.
4200 Buckingham Road, Suite 110
FortWorth, D( 76155
EEI{SEE:
PacffiGorp, an Oregon corporation
By:
Title:
Date:
By:
Title:
Date:
-t5-
Form 421; Rov. 20190916
COORDINATE SYSTEM: OR S TRACKTNG NO. 2067041
(ot6l
-tcrtll.cllol
lr
IUt(L
v
82'185'
EXHIBlT IIAII
ATTACHED TO CONTRACT BET\A/EEN
BNSF RAILWAY COMPANY
AND
N
PACIFICORP
1lN=75FT SECTIONDIV.I TOWNSHIP & RANGEBDIV
0639 MP: 1.55 MERIDIAN1218t2020
,\,!
I t
'ffi,.r?\;#,,a
15'arl-:v
{
I
MP 1.55
42.181174, -121 7
bun
NOTE:Source: Esri,GeoEye, Earthstar
CNES/Airbus DS, US
Community
, AeroGRlD, lGN,
EXISTING ELECTRIC AGREEMENT IS UNKNOWN
NEW 75' POLES TO REPLACE
EXISTING STRUCTURES.TOTAL LENGTH ON BNSF R^It/ IS 282'
DESCRIPTION OF WRES OVER TRACK
WIRES LOCATED AS SHO\^N BOLD
TYPE
ELECTRIC
NUMBER
3 ELECTRIC
VOLTAGE
69KV
DISTANCE ABOVE
TOP OF RAIL
CLEARS RAILWAY
COMPANY'S WIRES
KLAMATH FALLS
COUNTY OF KLAMATH BMNSTATE OF OR
55.3',
DRAWING NO.8O43O
February 22,2U21
PacifiCorp
Attention: Mr. InogenTaylor
825 NE Multnomah St., Suit€ 1700
Portlan{ OR 97232
(D)JLt
A*u-ft&oa
Jones lrng Lasalb Brckarage, lno
42(X) BndtlrUham Rd., Sdte'110
FortWbrh,Trc 76156
tel[phone]@0, hx +1 817 306{265
20-67M3
DearMr. Taylor:
Enclosed pleasc find one (1) fully executed ElecEic License . A copy of the executed agreement must
be anailable upon rcquest at tbe job site as authorization to do the work Pleose contad B/Y.SF's Schedulkg
Agent d wilsoncomoanv.atilio.itfri.wilsonco.com or 81655G3621 d tcostfifiean (15) doys in &ane of e*y
std DEFORE YOA DIG, CAIL $0q $3-2891 (opfun 7). If you nced ffinal hfotmation pbw coilrad
,rrc d [phone].
Liccnsec must ensur€ that each of its employees, contractors, agents or invitees ertering upon the premises
completes the safety orientation prcgam at ttc website www.BNSFcontraclor.com prior to €ntoring upon tLe
pr€,misos. The certificatim is good for one year, and eac,h person ortering the premises must possess the card
ccrti$ing coryletioa
No encroachmeirt above, belou, or on BNSF Right-of-Way will be alloured without the presenoe of an Inspector
Coordinator and Flagmao You must contaot BNSF's Soheduling Agent to arange for those scrvices. The
scheduliag ageot may be contacted atwilsoncomoanv.utilin'.ickt'wilsonco.com or 8l&55G3624. The installation
contractor must comply with all applicable soctions 6f this agreement including the requiremeom of section 16
regarding saf€ty requirements prior to on BNSF Right-of-Way. The installation contractor must
present and maintain a copy ofthe executed agreement on site for the duration of the installation activities.
Please note that a copy of the executed agree,rrent must be available rryon rcquest at job sit{s) allowiug
authorizationto do the work.
If you need additional information please contact me at [phone].
Sincerely,
Katie Robles
Ivlanager Permits
Enclosre
w i ls o n c o mn an)', u ti li t t'. i c fit wi ls o nc o. c o m
Glenn Monti - BNSF Roadmaster - [e-mail]
Hearher Pederse,n - BNSF Engineering - [e-mail]
Jerry Specht - BNSF Signals - [e-mail]
cc:
1
Tracking #204704.9
(Electric Light, Power Supply, lrrespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective February 26{h, 2021 (the
"Effec{ive Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licenso/') and PACIFICORP,
an Oregon corporation ("Licensee").
ln consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
9rant 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 prooess (the "Drawings
and Speclfications"), an electric supply line containing a maximum of three (3) conductors, together with its
supporting or containing structures (collectively, the "Electrlc Supply Line'), across or along Licensor's rail corridor
at or near the station of Klamath Falls, County of Klamath, State of Oregon, Line Segment 0640, Mile Post 0.97 as
shown on the attached Drawing No. 80431, dated December 7, 2020, atlached hereto as Exhiblt "A" and
incorporated herein by reference (the "Premlses").
Term. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
ExiStino lmorovements. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
licensees, easement beneltciaries 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, maintenan@, 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, lhe sum of Seven Thousand Three Hundred
and No/100 Dollars ($7,300.00) as compensation for the use of the Premises.
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 Sec'tion 8 below) for all costs and
expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence,
construction and maintenance of the Electric Supply Line, including but not limited to the furnishing of
Licensor's flaggers and any vehicle rental costs incurred, inspection coordination, safety, mobilization
and/or other observation services described in this License (collectively, the "Services"). Licensee shall
bear the coet of the Services when deemed nec,essary by Licensor's representative. Flagging costs shall
include, but not be limited to, the following: pay for at least an eight (8) hour basic day with time and one-
half or double time for overtime, rest days and holldays (as applir:able); vacation allowance; paid holidays
2.
3.
4
5.
6.
7.
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Form 421t Rev. 20190916
8.
Tracking #20-67043
(as applicable); raihuay 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 efbct 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 elec{ to designate a third party (the "Scheduling Aganf'), to perform
and/or anange 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) days after the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
SteetJoumalin the preceding Decemberplustwoand one-half percenl(2-1Do/ol, or(ii)the maximum rate permitted
by lant.
LICENSOR'S RESERVED RIGHTS
9. Feserved 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, operat€, repair, replace, modrfy and reJocate any utility, power or communication
pipe/lines/cables and appurtenances (other than the Electric Supply Line) and other facilities or strustures
of like character upon, over, under or aeross the Premises existing as of the Effective Date;
9.2 to construc-t, maintain, renew, use, operate, change, modrry and relocate any tracks or additionalf;acilities,
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 efiorts to avoid material interference with the use of the Premises by
Licensee for the purpose specified in Sectlon 4 above.
10. Rioht to Reouire Relocation. lf at any time duilng the term of this License, Licensor desires the use of its rail conidor
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) days after receiving written notice fiom 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 agreas to make all emergency changes and minor adjustments, as determined by Licensor in its sole
dismetion, to the Electric Supply Line promptly upon Licenso/s request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Supolv Line.
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by Licenso/s
representative, the Scheduling Agent or its designee. Licensee shall notifr Licensor's Roadmaster, Glenn
Monti at [e-mail], telephone [phone], 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 notiff Licensor of Licensee's entry onto the Premises
at the telephone number above as soon as practicable and shall promptly thereafter follow up with wriften
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.
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Form 421; Rev. 20190916
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11.3 Whlle on the Premises, Licensee shall use only public roadvraays to cross from one side of Licensor's tracks
to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
11.5 Under no conditions shall Lhensee be permitted to conduct any tests, investigations or any other activity
using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the Prcmises unless Licensee
has obtained priorwritten approvalfrom Licensor. Licensee shall, at its sole cost and expense, perform all
activities on and abort 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 activitie 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 uee of the Premises to determine the safe nature
thereof, it being solely Licensee's responsibility to ensure that Liensee's use of the Premises is safe.
Neither the exercise nor the fiailure 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 wil! 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 Lihe shall be completed within one (1) year of the Efiective Date, and
any subsequent maintenance shall be completed within one (1) year of initiatbn. \Mrthin fifteen (15) days
after completion of the construction of the Electric Supply Line or the performance of any subsequent
maintenance thereon, Licensee shall, at Lbensee's own cost and expense, restore the Premises to
substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in
writing. On or before epiration or termination of this License for any reason, Licensee shall, at its sole cost
and elpense, surrender the Premises to Licensor pursuant to the terms and conditions set forth in Section
24 hereof.
11.7 Licensor may direct one or more of its field engineers 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 Sectbn 8. lf ordered at any time to halt
construction or maintenance of the Electric Supply Line by Licenso/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 du$ 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 Eleclric Supply Line is constructed and maintained in stricl accordance with the Dmwings
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 ll, Licensor may, at its option and at
Licensee's sole expense, anange 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. 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.
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Form 421; Rev. 20190916
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11.9 lf the operation or maintenance of the Eledric Supply Line at any time causes interference, including but
not limited to physical interference from electromagnetic induction, electrostath 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, 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 furnish such
protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be
n6@ssary, in the judgment of Licenso/s representative, to eliminate such interference. The cost of such
protective devices and their installations shall be bome solely by Licensee. lf any of the interference
covered by this Section {1.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licenso/s operations as to require immediate conective action, Li@nsee, upon notice from Licensor, shall
either, at Licensor's election, c€ase using the Electric Supply Line for any purpose whatsoever and remove
same, or redu@ the voltage or load on the Electric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, untilthe protective devices and/or replacement equipment
required by this Section {1.9 have been installed, put in operation, tested, and found to be satisfac*ory to
conect the interfe rence.
1 1 .1 0 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 matedal shall not be attended to with fifleen (15) days after having been
requested by Licensorto do so, Licensor shall have the right itself to perform thework and Licensee hereby
agrees to reimburse Licensor forthe expense so incuned.
12. Borino and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, orsimilarwork on or about any portion of the Premises,
Licensee shall contact the applicable State's call-before-you-dig 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, pryldgd, hggggl, that in lieu of the foregoing handtoolexploration,
Licensee shall have the right to use suitable detection equipment or other generally accepted industry
practice (e.9., consulting with the State Infrastruclure 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 conceming 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 Licenso/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
Licenseel 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, iientiff the location of such lines on the Premises pursuant to
Licensofs 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 liabilig provisions herein.
12.2 For all bores greater than 26inch 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 subsidenee during the installation process. lf
the investigation determines in Licenso/s reasonable opinion that granular material is present, Licensor
may select a new location for Licensee's use, or may require Licensee to furnish for Licenso/s review and
appnoval, in Licenso/s sole discretion, a remedial plan to dealwith the granular material. Once Licensor
has approved any such remedial plan in writing, Licensee shall, at Licensee's sole cost and expense, carry
out the approved plan in accordanco with all terms thereof and hereof.
Any open hole, boring, orwellconstructed on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings constructed on the Premises by Licensee shall be;
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Form 421 : Rev. 20'190918
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12.3.1 filled in to surrounding ground levelwith compacted bentonite grout; or
12.3.2 othenrvise secured or retired in accordance with any applicable Legal Requirement. No excavated
materials may rcmain on Licensor's properly for more than ten (10) days, but must be properly
disposed of by Licensee in accordance with applicable Legal Requirements.
LIABILITY AND INSURANCE
13. Liabilitvandlndemnification.
13.1 For purposes of this License: (a) "lndemnitees" means Licensor and Licenso/s afiiliated companies,
partners, successors, assigns, legal repressntatives, officers, directors, shareholders, employees, and
agents; (b) "Liabllities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable
attorneys' fees, costs of investigation, removal and remediation, and govemmental oversight costs)
environmental or othenrvise; and (c) "Licensee Parties" means Licensee and Licensee's officers, agents,
invitees, licensees, employees, or contractors, or any par$ directly or indirec{ly employed by any of them,
or any paily they control or exercise control over,
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEN'NIEES FOR,
FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR DESCRIPTION
DIRECTLY OR TNDIRECTLY AR|SING OUT OF, RESULTTNG FROm, OR RELATED TO (lN WHOLE OR
rN PART):
13,2.'I THIS LICENSE, TNCLUDING, WTHOUT LIMITATION,ITS ENVIRONMENTAL PROVISIONS,
13,2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCGUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY L.AW, LICENSEE NOW AND FOREVER WAIVES, AND
WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL
CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LIGENSOR IS A GENERATOR,
OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COilIPENSATION, AND LIABILITY ACT, AS
AMENDED ("CERCIA") OR OTHER ENVTRONMENTAL LAWS (DEFINED BELOW). NOTHTNG tN
THIS LICENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S
COiiitlON CARRIER DEFENSES AND THIS LIGENSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEIIINITEE'S
COM]IION CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND UCENSEE AS TO USE OF THE PREi,IISES
AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE ENVIRONMENTALCONDITION OF THE PREMISES.
IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF
ANY INDEUNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE lTS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM AND AGATNST ANY LTABTLTTTES ARTSTNG OUT OF OR RELATED TO (tN WHOLE
13.4
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Form 421; Rev. 20190916
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OR lN PART) ANY SUCH ASSERTION INCLUIXNG, BUT NOT UlrllTED TO, ASSERflONS OF
EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWNG OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL ETPLOYERS'LIABILITY ACT, THE SAFEW APPLIANCE ACT, THE
LOCOMOTIVE TNSPECTION ACT, THE OCCUPATTONAL SAFETY AND HEALTH ACT, THE
RESOURCE CONSERT'ATION AND RECOVERY ACT, AND ANY SIMLAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBUGATIONS OF UCENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIiIATELY CAUSED BY THE GROSS NEGLIGENCE OR WLLFUL MISCONDUCT OF ANY
INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABIUTIES,INCLUDING THOSE ARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LIABILITY OF ANY INDEMNITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any 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'bes, litigation and appeal expenses, settlement payments, and amounts paid
in satisfaction of judgments.
Personal Prooertv Risk of Loss. ALL PERSONAL PROPERW, INCLUDING, BUT NOT UilITED TO, FIXTURES,
EQUTPMENT, OR REI.ATED i'IATERIALS UPON THE PREITIISES WLL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEIiNITEE WILL BE LIABLE FOR ANY DATUAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR !N PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
lnsurance. Licensee shall, at ils sole cost and expense, procure and maintain during the term of this License the
followi ng insumnce @vetage:
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 leEs than the amount otherwise carried
by Licensee. Coverage must be purchased on a post 2004 ISO occurrenoe form or equivalent and
include coverage for, but not limited to, the following:. Bodily lnjury and Property Damage. Personal lnJury and Advertising lnjury. Fire legalliability, Products and completed operations. Contractua! Liability for an "lnsured Contract' consistent with the definition under the standard ISO
genera! liability potiry 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 Licenso/s
employees.
c. No other endolsements that limit oovenage 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 icr, but not limited to the following:. Bodily injury and property damage.. Any and all vehicles owned, used or hired.
15.
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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 canied by Licensor.
15.3 Workers' Compensation and Emolovers' Liabilitv Insurance.
a. The policy will provide coverage of all employees performing any part of the urork or services
including coverage for, but not limited to:, Licensee's stiatutory liability under the workers' compensation laws of the state(s) in which the woft
or services are to be performed. The poliry will cover all of Licensee's employees, regardless of
whether such coverage is optional under the law of that strate(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 fuvor of and acceptable to Licensor.
15.4 Railroad Protective Liabilitv lnsunance. The policy will name only Licensor as the lnsured and will provide
coverage of at least $2,000,000 per oc.currence and $6,000,000 in the aggregate. The coverage obtained
under this policy shall only be efiective during the initial installation and/or construction of the Electric Supply
Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COMPLETED WTHIN ONE
(f ) YEAR OF THE EFFECTIVE DATE. lf further maintenance of the Electric Supply Line is needed at a
later date, an additional Railroad Protec'tive Liability lnsurance 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., 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 prcvided 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;
tr Licensee declines to participate in Licenso/s Blanket Policy.
Other Requirements.
15.5.1 Where allovable 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. In addition, Licensee's insurers, through the terms of the policy or policy endorsement,
7
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Form 421; Rev. 20180916
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waive their right of subrogation against Licensor for all claims and suits. Licensee furlher 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, willbe in addition
to all policy limits br 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 seff-insure, Licensee shall directly cover any self-insured retention or other
financial responsibility for claims in lieu of insurance, Any and all Licensor 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.
15.5.5 Prior to commencing any services or other work under this agreement, Licensee shall fumish to
Licensor an acceptable certificate(s) of insurance from an authorized representative evidencing the
req u ired 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 insunance company acceptable to Licensor or
with a cunent Bests Gulde Rating of A- and Class Vll or better, and authorized to do business in
the etate(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 covemge in force for a minimum of
three years after expiration, cancellation or termination of this agreement.
15.5.9 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.
15.5.10 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modifr
the insurance requirements to reflecl the then-current risk management practices in the railroad
industry and undenrriting practices in the insurance industry.
15.5.11 lf 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 indemnifl 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.
15.5.12 Failure to provi& evidence as required by this section shall entitle, but not require, Licensor to
terminate this License immedhtely. Acceptance of a certificate that does not comply with this
seclion sha!! not operate as a waiver of Licensee's obligations hereunder.
15.5^13The fact that Licensee obtains insurance (including, without limitation, self-insurance) shall not
release ordiminish Licensee's liabilities orobligations 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 coverage.
15.5.14 ln the event of a claim or lawsuit involving Licensor arising out of this agreement, Licensee will
make the policy covering such clalms or lawsuits available to Licensor.
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15.5.15 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.
15.5.16 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 wor* or services are performed under this License.
1 5.5.17 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC", 'BNSF
Railway Company'' and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WTH I.AWS. REGUI-ATIONS. AND ENVIRONMENTAL MATTERS
16. Comoliancewith Laws Rules. and Reoulations.
16.1 Liccnsee 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 ot
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'\ilww.BNsFcontractor.com" (the "Safety Orientation") within one year prior to entering upon the
Premises. Additionally, Licensee must ensure that each and every employee of Licensee, its contractors,
agents and invitees possess a card certiffing 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 alladditional
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 neoessary local, state, federal or tribal
authorizations and environmental permits) that are necessary in order to permil Licensee to construc{,
maintain, own and operate the Electric Supply Line and othenrise to perform its obtigations 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 renantral rights thereunder, or
othenrise acquire such extensions, additions and/or replaeements as may be necessary, in orderto 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 wlth the terms and conditions of this License, this License
thereby shall automatically expire upon such expiration or termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requiremenls and
regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery
Act, as arnended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
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Transportation Act, and CERCI-A (collectively referred to as the "Envlronmental 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 substiances", as
"hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,
or local govemmental agency or body on the Premises. Llcensee agrees periodically to furnish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Licenso/s Resource Operations Center at [phone]
of any known (i) release of hazardous substances on, from, or affecting the Prembes, (ii) violation of
Environmental 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
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 othenrvise cure such release or violation.
17.4 lf Llcensor has notice from Licensee or othenrise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occurred or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to trake timely measures to
investigate, remediate, respond to or othenvise cure such release or violation affecting the Premises or
Licen so/s rightof-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 pensons, property, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensods request
for information regarding said conditions or activities.
DISCTA]MER OF WARRANTIES
18. No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND SHALL NOT INCLUDE ANY I]I'IPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR
IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WTH RESPECT TO THE PREMISES OR WHICH ]UIAY EXIST
BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WTHOUT UMITATION, ANY WARRANTY OF
MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICUI.AR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
oR ![ipLtED, coNcERNtNG (A) THE SCOPE OF THE LTCENSE OR OTHER RTGHTS GRANTEO
HEREUNDER TO LTCENSEE OR (Bl WHETHER OR NOT LTCENSEE'S CONSTRUCTTON,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WLL
VIOIATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WTHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY
THIRD PARW.
Disclaimer of Wanantv for Quiet Eniovment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES
NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS iIIADE.
19
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Fottm.421i Rev.20190916
22.
23.
Tracking #20€7043
20. 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 affec{ed rail corridor, Licensor shall not be liable
(i) to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recuning charge paid
in advance, or (ii) for any damages or costs Licensee sustains in connection with the eviction.
LIENS AND TAXES
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; provided, however, that failure of
Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Sectlon 21 or any
other Sect'ron of this License.
Igxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "[axes") 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 "lmprovements") or
any Taxes levied or assessed against Licensor or the Premises that are attributable to the lmprovements.
DEFAULT. TERifl NATION. 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, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set fodh belortr:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thirty (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Sectlon 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Noturithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Sectlon 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwilhstanding 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 lerminate this
License br any subsequent default or defaults, nor shall any such waiver in any way afiect Licenso/s abilig
to enforce any Section of this License. The remedies set forth in this Section 23 shall be in addition to,
and not in limitation ol any other remedies that Licensor may have at law or in equig.
23.4 ln addition to and not in limitation of Licenso/s rights to terminate this License for failure to provide evidence
of insurance or occurrence of defaults as described above, this License may be terminated by either party,
at any time, by serving thirty (30) days'written notice of termination upon the other party. Such termination
shall not release either party hereto from any liability or obligation under the License, whether of indemnity
or othenryise, resulting from any acts, omissions or events happening prior to the date of termination or
thereafter in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Surenderof the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
- 11 -
Form121: Rev.20190910
Tracking #2ffi7M3
24.1.1 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 from, growing
out of or connested 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 surrender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration Obligations"),
Licensee shall have a limitd 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 efiecl until the Premises are surrendered and the Restoration Obligations are completed.
Neither termination nor expiration shall release Licensee from any liabiltty or obligation under this License,
whether of indemnity or othen"/ise, resulting from any acts, onrissions 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 Electric 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 Electric 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 billof sale in a form
acceptable to Licensor conveying the Electric Supply Line and the other lmprovements to Licensor for no
additional consideration.
MISCELI.ANEOUS
25.Successors and Assiqns. Atl provisions contained in this License shall be binding upon, inure to the benefit ol and
be enforceable by the respective successors and assigns of Licensor and Licensee to the same extent as if each
such successor and assign was named a party to this License.
26. Assiqnment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of the equity
interests of Licensee follorting which the equity interest holders of Lkrensee immediately prior to such sale
own, direc-tly or indirecfly, less than 50Yo of the combined voting poirer of the outstanding voting equity
interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization,
recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
-12-
Fonn 421; Rev. 20190916
Trad<ing #20€7043
or indirectly, at least 50016 of the combined voting porer of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WTH THE LAND
WTHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 28.1 above or anything contained in this License to the contrary,
if Licensee setls, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purpoiled Assignment") to another party (a "Purported Transferee"),
the Purported Transferee's enjoyment of the rights and privileges gr4nted 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 Sectlon 15 above
concerning insurance requirements. ln addition to and not in limitation of the foregoing, Licensee, for itself,
its successors and assigns, shall indemnifo, defend and hold harmless Licensor for all Liabilities of any
nature, kind or description of any person or entity directly or indiredly arising out of, resulting from or related
to (in whole or in part) a Purported Assignment. The provisions of this Section 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 suc*r 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.
27 Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to the other
shall be in wnling 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, retum receipt requested, or (ii) deposited into the custody of a nationally recognized
overnight delivery service, addressed to the party to be notified at tle address for such pafi specified belor, orto
such other address as the party to be notified may designate by giving the other party no less than thirty (30) days'
advance written notice of such change in address.
lf to Licensor:Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Rd., Suite 110
Fort Worth, D( 76155
Attn: Permits/Licenses
with a copy to:BNSF Railway Company
2650 Lou Menk Drive
Fort Worth, TX 76131
Aftn: Senior Manager Real Estate
lf to Licensee:PacifiCorp
825 NE Muhnomah St., Suite 1700
Portland, OR 97232Attn: lmogen Taylor
28 Survival. 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 Elec{ric Supply Line and the other lmprovements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on publlc
recod.
29.
13
Form 421 ; Rev. 20190916
30.
Tracking #205704,3
Aoplicable Law. All questions concerning the interpretation or application of pmvisions of this License shall be
decided according to the substantive laws of the State of Texas without regard to conflicts of lau, provisions.
Severabilitv. To the maximum extent possible, each provision of this License shall be interpreted in such manner
as to be effective and valid under applicable law, but lf any provision of this License shal! 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.
Inteoration. This License is the full and complete agreement between Lir:ensor and Licensee with respect to all
matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the
parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended
to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in
any prior written agreement between the pafiies.
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 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 enfiorce 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 contract would be construed against the party which drafted the same. Article titles,
headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of
reference only and are not intended to be a part or to afiecl the meaning or interpretation lereof. The
exhibit or exhibits referred to herein shall be construed with and as an integral part of this License to the
same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact follored by such words or words of like import; '\uriting", '\uritten" and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a visible
form; references to any person are also to that person's successors and permitted assigns; "hereof',
"herein", "hereunde/'and comparable terms refer to the entirety hereof and not to any particular article,
section, or other subdivision hereof or attachment hereto; references to any gender include references to
the masculine or feminine as the context requires; rcferences 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.
Counterparts. This License may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an originalbut 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.
Licensofs Reoresentative. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF Railway
Company.
END OF PAGE.SIGNATURE PAGE FOLLOWS
32.
31
36.
37
33.
u.
35.
-14-
Form 421; Rev. 20190916
Trad<ing #20€7013
This Ucensa hae beon duly execubd by tho partir3 hersto as of the Efiectirro Daile.
LIGE}ISOR:
BNSF Rdluray Company, a Ddannrs corporation
By:Jones Lary LaSalle Brokerage, lnc.
4200 Buckingham Road, Sulte 110
FortWorth, D(76155
By:
Tille:
Date:
By:
Date:
Mce President
February 22,2021
UGENSEE:
PaclfiCorp, an Oregon corpordion
Brian Fritz Digihlly a[ned by Btun Frits
Dete: 2021 .01.20 1 5:29:13 {8'(XI
TiUe: Dlr€dor, Transmiseion SeMcca
t5
Fom4lll: ReY.20190916
COORDINATE SYSTEM: OR S TRACKTNG NO. 20€7043
@l
NIurlol
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EXHIBIT IIAII
ATTACHED TO CONTRACT BETV\IEEN
BNSF RAILWAY COMPANY
AND
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APACIFICORP
SCALE:1 lN = 75 FT SECT!ONDIV.TOV\NSHIP & RANGE:
.S. 0640 MP: 0.97 *
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DESCRIPTION OF WRES OVER TRACK
WRES LOCATEDAS SHOW{ BOLD
TYPE
ELECTRIC
NUMBER VOLTAGE
69KV
DISTANCEABOVE
TOP OF RAIL
CLEARS RAILWAY
COMPANY'S WRES
KI.AMATH FALLS
COUNTY OF KI.AMATH BMNSTATE OF OR
68'& 58'
DRAWNG NO.8M31
(EJtL Jones Lang LaSalle Brokenge, lnc.
4200 Buckingham Rd., Suite'110
Forl Worth, Texas 76155
tel+1 817-23G.2600, fax +l 817 30&8265
20$7044
January 13,2021
PacifiCorp
Aftention: Mr. lmogen Taylor
825 NE Multnomah St., Suite 1700
Portland, OR 97232
Dear Mr. Taylor:
Attached please find a copy of the requested contract for execution by an offtcial authorized to execute contract
agreements on behalf of your company. Please print two (2) copies execute and rcturn both cooies with ofi
sionature for completion on part of BNSF Railway Company CBNSF') to this office, along with the following
requirements:
. A check in the amount of $10,720.00 payable to BNSF Railway Company which covers the contract fee.
Please note the agreements cannot be executed by BNSF without an approved insurance certificate. lf there are
any issues with your insurance, you will be contacted by a member of the Risk Management team of BNSF
Railway.
1. A Certificate of lnsurance as required in the agreement.2. A separate policy for Railroad Protective Liability lnsurance as required in the agreement (ORIGINAL
POLICY MUST BE PROVIDED). BNSF Railway Company will be the only insured party; OR;
ln lieu of providing a separate policy for Railroad Protective Liabllity lnsurance, you may participate in the
BNSF's Railroad Protective Policy by checking the appropriate box in the contract and including an additional
$506.00 with your check.
PLEASE ADVISE IF THIS PROJECT IS ARRA FUNDED.
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 prior to entering upon the
premises. The certification is good for one year, and each person entering the premises must possess the card
certiffing completion.
Acceptance and deposit of any check by BNSF does not constitute an agreement between BNSF and Licensee
for the requested license. BNSF shall not be obligated to hold the check in a separate fund, but may commingle
the funds with other funds of BNSF, and in no event shall BNSF be responsible for interest on said funds.
The enclosed permit is not a binding agreement and shall become binding only when, and if, it is executed by you
and fully approved and executed by BNSF Railway Company. Upon completion on behalf of BNSF, one fully
executed counterpart will be returned for your records.
The specifications/plans you provided may differ from BNSF's minimum specification
requlrements. Therefore, prior to your installation, please review the Exhibit A to determine the
specifications neceasary for your installation.
Please be informed that if contracts, fees, and insurance are not returned within sixty (60) days, the processing
fee will increase to $1,600.00.
Sincerely,
Katie Robles
Manager - Permits
Attachment
1
Tracking #20-67C(,4
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS ORALONG RAILWAY PROPERTY
(Electric Light, Power Supply, lrrespective 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 ("Licensor") and PACIFICORP,
an Oregon corporation ("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, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordance
with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings
and Specifications"), an electric supply line containing a maximum of three (3) conductors, together with its
supporting or containing structures (collectively, the "Electric Supply Line"), across or along Licensor's rail corridor
at or near the station of Klamath Falls, County of Klamath, State of Oregon, Line Segment 0640, Mile Post 0.98 as
shown on the attached Drawing No. 80584, dated January 6, 202'1, attached hereto as Exhibit "A" and
incorporated herein by reference (the "Premises").
Term. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
Existinq !morovements. 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 Ten Thousand Seven Hundred
Twenty and No/100 Dollars ($10,720.00) as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "cosf' or "costs" and "expense" or "expenses" includes, but is not limited
to, actual labor and material costs including all assignable additives, and material and supply costs at
current value where used.
7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs and
expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence,
construction and maintenance of the Electric Supply Line, including but not limited to the furnishing of
Licensor's flaggers and any vehicle rental costs incurred, inspection coordination, safety, mobilization
and/or other observation 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, the following: pay for at least an eight (8) hour basic day with time and one-
half or double time for overtime, rest days and holidays (as applicable); vacation allowance; paid holidays
2
3
4.
5.
6.
-1-
Form421; Rev.20190916
8
I
Tracking #20-670/r'.
(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 arrange 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 thifi (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
Street Journal in the preceding December plus two and one-half percent (2-112%), 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 character upon, over, under or across the Premises existing as of the Effective 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 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.Rioht to Reouire Relocation. 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 Electric Supply Line, Licensee
shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make
such changes in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the Electric Supply
Line, or the construction of a new electric line to replace the Electric Supply Line. Notwithstanding the foregoing,
Licensee agrees to make all emergency changes and minor adjustments, as determined by Licensor in its sole
discretion, to the Electric Supply Line promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Suoplv Line.
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by Licensor's
representative, the Scheduling Agent or its designee. Licensee shall notiff Licensor's Roadmaster, Glenn
Monti at [e-mail], telephone [phone], 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 notiff 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.
9.2
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F orm 421 ; Rev. 201 909'1 6
Tracking #2G67044
11.3 \Mtile on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks
to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
11.5 Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity
using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee
has obtained prior written approva! ftom 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 proper$ 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
liabili$ 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 propefi 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. \A/ithin fifteen (15) days
after completion of the construction of the Electric Supply Line or the performance of any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to
substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in
writing. On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost
and expense, surrender the Premises to Licensor pursuant to the terms and conditions set forth in Section
24hereof.
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, failto properly perform its obligations underthis Section ll, Licensor may, at its option and at
Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of
its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Section 8. Licensor's failure to perform any obligations of Licensee shall
not alter the liability allocation hereunder.
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
11.8
Form 421: Rev. 20190916
Tracking #20-67U4
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 currents, with the facilities of Licensor or of any lessee or licensee of Licensor, or in any manner
interfere with the operation, maintenance, or use by Licensor of its right-of-way, tracks, structures, pole
lines, signal and communication lines, radio, or other equipment, devices, other property or appurtenances
thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and furnish such
protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be
necessary, in the judgment of Licensor's representative, to eliminate such interference. The cost of such
protective devices and their installations shall be borne solely by Licensee. lf any of the interference
covered by this Section {1.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediate corrective action, Licensee, upon notice from Licensor, shall
either, at Licensor's election, cease using the Electric Supply Line for any purpose whatsoever and remove
same, or reduce the voltage or load on the Electric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, until the protective devices and/or replacement equipment
required by this Section 11.9 have been installed, put in operation, tested, and found to be satisfactory to
correct the i nterference.
11.10 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles
on the Premises, if any, and will at all times keep the space around such poles free of such material, and if
removal of such combustible material shall not be attended to with fifteen (15) days after having been
requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incurred.
12. Borinq and Excavation.
12.1 Priorto Licenseeconducting any boring, excavation, orsimilarworkon oraboutany portion of the Premises,
Licensee shall contact the applicable State's call-before-you-dig 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, ryiglgg[, l1ryI, that in lieu of the foregoing handtool exploration,
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
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, Licensorwill 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, identiff the location of such lines on the Premises pursuant to
Licensor's standard procedures. Licensor does not warrant the accuracy or completeness of information
relating to subsurface conditions of the Premises and Licensee's operations will be subject at all times to
the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil
investigation must be performed by Licensee and reviewed by Licensor prior to construction. This study is
to determine if granular material is present, and to prevent subsidence during the installation process. 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 dealwith the granular material. Once Licensor
has approved any such remedial plan in writing, Licensee shall, at Licensee's sole cost and expense, carry
out the approved plan in accordance with all terms thereof and hereof.
12.3 Any open hole, boring, orwell constructed on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings constructed on the Premises by Licensee shall be:
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Form 421; Rev. 20190916
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12.3.1 filled in to surrounding ground levelwith compacted bentonite grout; or
12.3.2 othenryise secured or retired in accordance with any applicable Legal Requirement. No excavated
materials may remain on Licensor's proper$ 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) "lndemnitees" means Licensor and Licensor's affiliated companies,
partners, successors, assigns, legal representatives, officers, directors, shareholders, employees, and
agents; (b) "Liabilities" means allclaims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable
attorneys' fees, costs of investigation, removal and remediation, and governmental oversight costs)
environmental or othenrise; and (c) "Licensee Parties" means Licensee and Licensee's officers, agents,
invitees, licensees, employees, or contractors, or any party directly or indirectly employed by any of them,
or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARiIILESS INDEMNITEES FOR,
FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR DESCRIPTION
DIRECTLY OR INDTRECTLY AR|SING OUT OF, RESULTTNG FROM, OR RELATED TO (lN WHOLE OR
rN PART):
13,2.1 THIS LICENSE, INCLUDING, WTHOUT LIi'IITATION, ITS ENVIRONMENTAL PROVISIONS,
13.2,2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13,2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, AND
WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROIiII ANY AND ALL
CLAIIIIIS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR IS A GENERATOR,
OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF THE
COMPREHENSIVE ENVIRON]UIENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, AS
AMENDED ("CERCLA") OR OTHER ENVIRONMENTAL LAWS (DEFINED BELOW). NOTHING !N
THIS LICENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. !F ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PRETIIISES
AS CONTEiIPLATED BY THIS LICENSE SHALL LIGENSOR BE RESPONSIBLE TO LICENSEE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF
ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARittLESS FROM AND AGATNSTANY LIABILITIES ARISING OUT OF OR RELATED TO (lN WHOLE
13.4
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Form421; Rev.20190916
14.
15.
Tracking #20-670/r'.
oR tN PART) ANY SUCH ASSERTION |NCLUDING, BUT NOT LIMITED TO, ASSERTIONS OF
EMPLOYi'ENT BY AN INDEMNITEE RELATED TO THE FOLLOWNG OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EMPLOYERS. LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFEW AND HEALTH ACT, THE
RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LIABILITY OF ANY INDEMNITEE.
13,6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any Indemnitee by any enti$, 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 appealexpenses, settlement payments, and amounts paid
in satisfaction of judgments.
PersonalProoertv Riskof Loss. ALL PERSONAL PROPERTY,INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPi'ENT, OR RELATED ]I'IATERIALS UPON THE PRETIIISES WLL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEII'INITEE.
lnsurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of this License the
following insurance coverage:
15.1 CommercialGeneral Liabilitv"CGL" lnsurance.
a. The policy will provide a minimum of $2,000,000 per occurrence and an aggregate limit of at least
$4,000,000 but in no event will the coverage be in an amount less than the amount otherwise carried
by Licensee. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and
include coverage for, but not limited to, the following:. Bodily lnjury and Property Damage. Personal lnjury and Advertising Injury. Fire legal liability. Products and completed operations. Contractual Liabili$ 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 Licenso/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 allvehicles owned, used or hired.
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Form421; Rev.20190916
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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' Compensation and Emplovers' Liabilitv lnsurance.
a. The policy will provide coverage of all employees performing any part of the work or services
including coverage 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 !imit, $500,000 by disease each employee.
b. The policy will include contain the following endorsements or language, which shall be indicated on or
aftached 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 CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COMPLETED wlTHlN ONE
(1) 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 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 Propefi" 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."
In lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from the Effective Date,
Licensee may participate in Licensor's Blanket Railroad Protective Liability lnsurance Policy available to
Licensee or its contractor. The limits of coverage are the same as above. The cost is $506.00.
tr Licensee elects to participate in Licensor's Blanket Policy;
tr Licensee declines to participate in Licensor's Blanket Policy.
15.5 OtherReouirements.
15.5.1 Where allowable by law, no exclusion for punitive damages may be included in any policy
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. ln addition, Licensee's insurers, through the terms of the policy or policy endorsement,
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Form 421:' Rev. 20'190916
Tracking #20-67044
waive their right of subrogation against Licensor for all claims and suits. Licensee further waives
its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss
of Licensee's owned or leased property or proper$ 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 cover any self-insured retention or other
financial responsibility for claims in lieu of insurance. Any and all Licensor liabilities that would
othenrrrise 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.
15.5.5 Prior to commencing any services or other work under this agreement, Licensee shall fumish 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 current 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 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.
15.5.10 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modiff
the insurance requirements to reflect the then-current risk management practices in the railroad
industry and underwriting practices in the insurance industry.
15.5.11|f 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 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.
15.5.12 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.
15.5.13The 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 coverage.
15.5.14 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.
8
Form 421; Rev. 20190916
Tracking #20-67044
15.5.15 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.
1 5.5. 16 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.
15.5.17 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC", "BNSF
Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WTH LAWS. REGULATIONS. AND ENVIRONMENTAL MATTERS
16. Compliance 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 contractor(s) to comply with all of
Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees,
contractors, agents or invitees entering upon the Premises completes the safety orientation program at the
Website "www.BNSFcontractor.com" (the "Safe$l Orientation") within one year prior to entering upon the
Premises. Additionally, Licensee must ensure that each and every employee of Licensee, its contractors,
agents and invitees possess a card certiffing completion of the Safety Orientation prior to entering upon
the Premises. Licensee must renew (and ensure that its contractors, agents or invitees, as applicable,
renew) the Safe$ Orientation annually.
16.3 Licensee shall obtain on or before the date it or its contractor enters the Premises, any and all additional
rights-of way, easements, licenses and other agreements relating to the grant of rights and interests in
and/or access to the Premises (collectively, the "Rights") and such other rights, licenses, permits,
authorizations, and approvals (including without limitation, any necessary local, state, federal or tribal
authorizations and environmental permits) that are necessary in order to permit Licensee to construct,
maintain, own and operate the Electric Supply Line and othenuise to perform its obligations hereunder in
accordance with the terms and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does not
expire, in accordance with its ordinary terms, prior to the last day of the term of this License or, if the initial
stated term of any such Right expires in accordance with its ordinary terms on a date earlier than the last
day of the term of this License, Licensee shall, at its cost, exercise any renewal rights thereunder, or
otherwise acquire such extensions, additions and/or replacements as may be necessary, in order to cause
the stated term thereof to be continued until a date that is not earlier than the last day of the term of this
License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate or
use the Electric Supply Line in accordance with the terms and conditions of this License, this License
thereby shall automatically expire upon such expiration or termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery
Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
9
Form 42'l ; Rev. 20190916
Tracking #20-67o4r'.
Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by
Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as
"hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,
or local governmental agency or body on the Premises. Licensee agrees periodically to furnish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at [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
Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on, from, or affecting the Premises. Licensee also shall give Licensor
immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to
or othenruise cure such release or violation.
17 .4 lf Licensor has notice from Licensee or othenrvise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occurred or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or othenrise cure such release or violation affecting the Premises or
Licensor's right-of-way.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known
to Licensee which create a risk of harm to persons, property or the environment and shall take whatever
action is necessary to prevent injury to persons, propefi, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request
for information regarding said conditions or activities.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND SHALL NOT INCLUDE ANY IiiPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR
!N THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECTTO THE PREMISES ORWHICH MAY EXIST
BY OPERATION OF LAW OR !N EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, HABITABILITY OR FITNESS FORA PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
oR IMPLIED, CONCERNING (A) THE SCOPE OF THE LTCENSE OR OTHER RTGHTS GRANTED
HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LTCENSEE'S CONSTRUCTTON,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE wlLL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WTHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY
THIRD PARW.
Disclaimer of Warrantv for Quiet Enioyment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREiTISES
NOR UNDERTAKE TO DEFEND LICENSEE !N THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS MADE.
19
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20. 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 AND TAXES
21. Liens and Charqes. 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; provided, however, that failure of
Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 21 or any
other Section of this License.
22. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or
assessed by any governmental or quasi-governmental body upon the Electric Supply Line or any other
improvements constructed or installed on the Premises by or for Licensee (collectively, the "lmprovements") or
any Taxes levied or assessed against Licensor or the Premises that are attributable to the lmprovements.
DEFAULT. TERMINATION. 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 pursuant to the terms of Section 15, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thir$ (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Section 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination
upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this
License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability
to enforce any Section of this License. The 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 forfailure to provide evidence
of insurance or occurrence of defaults as described above, this License may be terminated by either pafi,
at any time, by serving thirty (30) days' written notice of termination upon the other party. Such termination
shall not release either party hereto from any liability or obligation under the License, whether of indemnity
or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or
thereafter in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
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F orm 42'l: Rev. 201 9091 6
Tracking #20-6704r'.
24.1.1 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 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
othenrvise agreed to by Licensor.
24.2 Upon any expiration or termination of this License, if Licensee fails to surrender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration Obligations"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee
to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall
continue in effect until the Premises are surrendered and the Restoration Obligations are completed.
Neither termination nor expiration shall release Licensee from any liability or obligation under this License,
whether of indemnity or othenrise, resulting from any acts, omissions or events happening prior to the date
of termination, or, if later, the date when Licensee surrenders the Premises and all of the Restoration
Obligations are completed.
24.3 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 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 Electric Supply Line and the other lmprovements and personal property as its
sole propefi, 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 !mprovements 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 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.
Assiqnment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of the equity
interests of Licensee following which the equity interest holders of Licensee immediately prior to such sale
own, directly or indirectly, less than 50% of the combined voting power of the outstanding voting equity
interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization,
recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
25
26
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Form 421; Rev. 201909'1 6
Tracking #20-67044
or indirectly, at least 50% of the combined voting power of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WTH THE LAND
WTHOUT THE EXPRESS \A'RITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purported Assignment") to another party (a "Purported Transferee"),
the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this
License, including but not limited to the obligation to comply with the provisions of Section 15 above
concerning insurance requirements. ln addition to and not in limitation of the foregoing, Licensee, for itself,
its successors and assigns, shall indemniff, 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 Section 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.
27 Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to the other
shall be in writing and the same shal! be given and shall be deemed to have been served and given if (i) placed in
the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized
overnight delivery service, addressed to the pafi 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 thifi (30) days'
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
2650 Lou Menk Drive
FortWorth, TX 76131
Attn: Senior Manager Real Estate
lf to Licensee PacifiCorp
825 NE Multnomah St., Suite 1700
Portland, OR 97232Attn: lmogen Taylor
28.Survival. Neither termination nor expiration will release either pafi from any liability or obligation under this License,
whether of indemnity or othenrvise, 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.
Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
29
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Fomr421; Rev.20190916
30.
Tracking #20-670(4
Applicable Law. All questions concerning the interpretation or application of provisions of this License shall be
decided according to the substantive laws of the State of Texas without regard to conflicts of law provisions.
Severabilitv. To the maximum extent possible, each provision of this License shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held
to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or
invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License.
Inteqration. This License is the full and complete agreement between Licensor and Licensee with respect to all
matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the
parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended
to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in
any prior written agreement between the parties.
Joint and Several Liabilitv. !f Licensee consists of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreements of such parties.
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.
lnterpretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based
upon the source of the draftsmanship; both parties hereby agree that this License shall not be subject to
the principle that a contract would be construed against the party which drafted the same. Article titles,
headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of
reference only and are not intended to be a part or to affect the meaning or interpretation hereof. The
exhibit or exhibits referred to herein shall be construed with and as an integral part of this License to the
same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation"
whether or not they are in fact followed by such words or words of like import; "writing", "written" and
comparable terms refer to printing, typing, lithography and other means of reproducing words in a visible
form; references to any person are also to that person's successors and permitted assigns; "hereof',
"herein", "hereunder" and comparable terms refer to the entirety hereof and not to any particular article,
section, or other subdivision hereof or attachment hereto; references to any gender include references to
the masculine or feminine as the context requires; references to the plural include the singular and vice
versa; and references to this License or other documents are as amended, modified or supplemented from
time to time.
Counterparts. This License may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature pages from
any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts
of this License may also be exchanged 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.
END OF PAGE. SIGNATURE PAGE FOLLOWS
33.
34.
35.
31
32.
36
37
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Form421; Rev.20190916
Tracking #20€70dr'-
This License has been duly executed by the parties hereto as of the Efhctive Date.
LI9E}!9G:
BNSF Rallway Gompany, a Delaware corporation
Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Road, Suite 110
FortWorth, D( 76155
By:
!!9EUSIEE:
Paciflcorp, an Oregon corporation
By:
Tifle:
Date:
By:
Title:
Date:
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Fom 421; Rw.20190916
COORDINATE SYSTEM: OR S
EXHIBIT TIAII
ATTAC HED TO C ONTRACT BETVI/EEN
BNSF RAILWAY COMPANY
AND
N
PACIFICORP
SCALE:1 lN = 100 FT
NORTHWEST DIV.
GATEWAY SUBDIV.
L.S. 0640 MP: 0.98
DATE: 112512021
r'SECTION: 8
TOWNSHIP & RANGE:
39S 9E
MERIDIAN:WILLM
57',ABOVE TRACK Ao
36'3'FROM
TRACK SWITCH
1
t
I
71'ABOVE TRACKS 28'9"'FROM
TRACK SWITCH
' 38'5'FROM
TRACK SWITCH MP 0.98
42.r9E353 -121.7E0216
?
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Esri, DigitalGlobe, GeoEye, Earthstar Geographics,
Ao DS, USDA, USGS, AeroGRlD, lGN, and the GIS User
nity
DESCRIPTION OF WRES OVER TRACK
WRES LOCATEDAS SHOWN BOLD
TYPE
ELECTRIC
NUMBER VOLTAGE
69KV
DISTANCE ABOVE
TOP OF RAIL
CLEARS RAILWAY
COMPANY'S WIRES
3
KLAMATH FALLS
COUNTY OF KLAMATH JNCSTATE OF OR
57'71',
TRACKING NO. 20€7044
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REVISION 1 DRAWING NO.80584