20211105Notice of Affiliate Transaction-BNSF Railway.pdf

*fl/i:; '' I
YPecrnCoRP Timothy K. Clark
Senior Attorney ii.l iil'; -5 Effi li: l9
1407 W. North Temple, Suite 320
Salt Lake CiO, UT 84116 "
801-220-4565 Ollice
T tm C I ar h@p a citic o rp. c o m
VU ELECTRONIC FILING
November 5,2021
Idaho Public Utilities Commission
I l33l West Chinden Boulevard
Building 8 Suite 20lA
Boise, Idaho 837 14-1021
Attention:Jan Noriyuki
Commission Secretary
PacifiCorp Notice of Affiliate Transaction - PacifiCorp and BNSF Railway
Company
Case No. PAC-E-05-8
Dear Ms. Noriyuki
Pursuant to Commitmentl 17(2), incorporated in the Idaho Public Utilities Commission
Order No. 29973, issued February 13,2006, as supplemented by Order No. 29998 March 14,
2006, in the above-referenced proceeding, approving the acquisition of PacifiCorp by
MidAmerican Energy Holdings Company (now Berkshire Hathaway Energy Company or BHE),
PacifiCorp hereby provides notice of an affiliated interest transaction with BNSF Railway
Company (BNSF).
PacifiCorp purchased a license, Elechic Supply Line Across or Along Railway Property
(Permit #zlW-l1309) (License), allowing PacifiCorp to construct and maintain an electric
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 Millersburg, County of
Linn, State of Oregon, Line Segment0442, Mile Post 93.52. A verified copy of the License, is
included with this Notice as Attachment A.
PacifiCorp is a wholly-owned indirect subsidiary of Berkshire Hathaway Energy Company
(BHE). BHE is a subsidiary of Berkshire Hathaway, Inc. BNSF is also a subsidiary of Berkshire
Hathaway, Inc. Therefore, the ownership interest of Berkshire Hathaway, [nc., in BHE and in
BNSF creates an affiliated interest relationship between PacifiCorp and BNSF.
. : l'r-"liLi,^ 1.:, ]:
. .--l.rr, i tlHCl'j
Re:
Obtaining the License is in the public interest because it allows PacifiCorp to work on
facilities at or near the Millersburg station. This work is necessary to effect improvements
associated with the Conser Road substation project. Without the License, PacifiCorp cannot meet
its obligation to provide safe and reliable electric service. As the property owner, BNSF is the
only entity that can provide the License to PacifiCorp. BNSF uses standardized pricing for these
types of permits. PacifiCorp paid $6,506.00 for the Zi-year License, which includes the
application fee, initial annual permit fee, and insurance.
Please do not hesitate to contact me if you have any questions.
Sincerely,
- /,;.r\- K (/^.1- -,4
Timothy K. Clark
Senior Attorney
PacifiCorp
Enclosure
Attachment A.pdf
ATTACHMENT A
PacifiCorp Notice of Affiliate Transaction
to
JLt &nct lang LaSallc Brokragc, lnc.
4200 &rddngham Rd., Sulb 110
Fort Vl/orth, Tcxas 76155
H [phone]fi), iax +1 817 30S8205
2lw-11309
October 20,2021
PacifiCorp
Attention: Mr. ImogenTaylor
825 NE lt[ultnomah Street, Suite 1700
Pordan{ OR 97232
DearMr. Taylon
Enclosed please find one (l) fully executed Electric Liccnse Agc@€ril. A copy of th cxecutod agrceme,nt must
bc available npon rcqucst at the job site as authorization to do the wol*,. Pleos con ad.BJV.IF's Sclwthtlittg
Ageat at wilsoncommnr,.utility.idti wilsonco.com or E1655Gi621a lenstfifrcen (15) days in dvuce of anty
ond BEFORE YOU IilG, CALL (800) 533-2E91 (oflion 7).
Licensee must €,nsurg that each of its employees, c,onmctors, agcots or invitces €f,rtering upon the preinises
corrplaes the safdy orientation prograrn at the website www.BNSFcontractor.com prior to eot€ring upon the
premises. Thc certification is good for one )roar, and each person eotcring the pre,mises must possess the card
certiSing complction.
No encrroachmeot abovg below or on BNSF Rightof-Way will be allowed without tbc presence of an Inspector
Coordinator and Flagman. You must contact BNSF's Scheduling Agont to anuge for those sorrices. The
schedutingagentmaybecontactodat wilsoncom?anr'.utilitt'Jc(t!'.wilsonco.comorSLGS5&3624. The installation
contactor must coryly with all applioable sec'tions of this agreement inctuding the requirements of section 16
regadiug safety requirements prior to encroaching on BNSF Rightof-Way. The installation contractor must
present and maintain I copry of the executed agrEement on site for the duration of the installatiou acivities.
Plcase note that a cqpy of the executed agreeme,nt must be available upon rcquest at job sit{s) a[owing
authorization o do the work.
If you nead additimal infonnation, please contact me at [phone].
Sincerely,
*,*,*"
Katie Robles
Irdanager Permits
Enclozure
oc: wilsoncomttau'.utility.ic\u:wilsonco.com
Dennis Hqnnahs - Roadmaster - [e-mail]
1
TracHng #21W-l13Og
UCENSE FOR ELECTRIC SUPPLY UNE
ACROSS ORALONG RAILWAY PROPERTY
(Electric Light, Power Supply, lrrespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ('Llcense") is made to be effective October 27n, 2021 (the
'Effectlve Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ('Licensor") and PAGIFICORP,
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 parlies, including, without limitation, any leases, use rights, easements, liens, or olher
encumbrances, and upon the terms and conditions set forth below, to constsuct and malntaln, ln strlct accordance
with the drawings and specifrcations approved by Lioensor as part of Licensee's applicatlon prooess (the 'Drawings
and Speclficatlonr"), an electric supply line containing a maximum of three (3) @nductors, together with lts
supporting or containing strucfures (collectively, the "Electric Supply Llne'), across or along Licenso/s railconidor
at or near the stration of Millersburg, Coun$ of Linn, State of Oregon, Line Segmenl0442, Mile Post 93.52 as shown
on the aftached Drawing No. 82451, dated Augusl4,2A21, attached hereto as Exhiblt "A" and incorporated herein
by reference (the "Premlses").
Term. This License shall commenoe on the Effective Date and shall continue for a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
Exlstino lmorovements. Licensee shall not disturb any improvements of Licensor or Licensor's eisting lessees,
licensees, aasement beneficiaries or lien holders, if any, or interfere with the use, repair, maintenance or
replacement of such improvements.
Use of the Premises. Llcensee shall use the Premises solely for construction, maintenance, and use of the Electric
Supply Line in accordance wlth the Drawings and Specifications. Licensee shall not use the Premises for any oher
purpose and Licensee ls expressly prohibited from using or allowing any telecommunication facilities or equipment
within the Premises or uslng or allowing the use of the Premises for any other purpose.
Alterations. Except as set forth ln 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
Licenso/s prior written consent.
CO]f,PENSATION
6. License Fee. Licensee shall pay Licensor, prior to the Efiective Date, the sum of Five Thousand Two Hundred and
No/100 Dollars ($5,200.00) as compensation for the use of the Premises.
7. Costs and Exoenses
7 -1 For the purpose of this License, "cost" or 'costso and 'expense" or "expenses" includes, but is not limited
to, actual labor and materlal e,osts including all assignable additives, and material and supply costs at
cunent value where used.
Licrensee agrses to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs and
expenses incuned by Licensor ln connectlon with Licensee's use of the Premises or the presence,
construction and maintenance of the Elec{ric Supply Llne, including but not limited to the furnishing of
Licensor's flaggers and any vehicle rental costs incuned, inspection coordlnatlon, safety, mobillzaton
and/or other observation services described in this License (collectively, the "SoMces"). Licensee shall
bear the cost of he Servlces when deemed necessary by Licenso/s representative- Flagging costs shall
2.
3.
4
5
7.2
Form421; Rev.20200605
8
Tracking Y21W-11n5
include, but mt be llmited to, lhe following: pay for at least an eight (8) hour basic day wih time and one-
half or double time for overtime, rest days and holidays (as applicable); vacation allowance; paid holidays
(as applicable); railway and unemployment insurance; public liability and property damage insurance;
heafth ard welfare beneffts; transportation; meals; lodging and supeMsion. Negotiations for railway labor
or collec{ive bargaining agreements and rate changes authorized by appropriate Federal authorities may
increase flagging rates. Flagging rates in effect at the time of performance by the flaggers will be used to
calculate the flagging costs pursuant to this Section 7.
7.3 Licensor, at lts sole discretion, may elect to designate a thlrd party (the "Schedullng Agent'), to perfonn
and/or arrange for the performance of the Services.
Pavment Terms. All invcrices are due Srirty (30) days after the date of invoice. lf Licensee fails to pay any monies
due to Licensor within hir$ (30) days after the involce date, then Licensee shall pay interest on such unpaid sum
frorn the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
Street Journalin the preceding December plus two and one-half percenf(Z-1f2o/o), or (ii) the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Riohts of Use. Licensor excepts and reserves the right, to be exerclsed by Ucensor and any other partiss
who may obtain uritten permission or auhority from Licensor:
to maintain, use, operate, repair, replace, modiff and relocate any utllity, power or communication
pipe/lines/cables and appurtenances (other than the Electric Supply Line) and other facilities or structures
of like character upon, over, under or across the Premlses exisling as of the Efuctive Date;
to construct, maintain, renew, use, operate, change, modfy and relocate any tracks or ad<litonal facilities,
slructures and related appurtenances upon, over, under or across the Premises; or
to use the Premises in any manner as Llcensor in its sole discretion deems appropriate, provided Ucensor
uses all commercially reasonable efforts to avoid material interferencd with the use of the Premises by
Licensee for the purpose specified in Sectlon 4 above.
Riqht to Reoulre Relocation. lf at any time during the term of this License, Licensor desires the use of its rail conidor
in such a manner as wor.rld, in Licansor's reasonable opinion, be interfered wlth by the Electric Supply Line, Licensee
shall, at its sole expense, within thifi (30) days after receiving written notice from Licensor to such effect, make
such changes ln the Electic Supply Une as in the sole discretlon of Licensor may be necessary to avoid interference
with the proposed use of Licensor's rail conidor, including, wlthout limltation, the relocation of the Electric Supply
Line, or the construction of a new electric llne to replace the Electric Supply Line. Notwithstanding the foregoing,
Licensee agrees to make all emergency changes and mlnor adjusUnents, as delermined by Ucensor in its sole
discretion, to the Electric Supply Line promptly upon Licenso/s request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Eleclric Suoply Line.
11.1 Licensee shall not enter the Premises or @mmence construction unless accompanied by Licensor's
representative, the Scheduling Agent or iB designee. Ucensee shall notifr Llcenso/s Roadmaster, Dennis
Hannahs at [e-mail], telephone [phone], at least ten (10) business days prior to
installation of the Electric Supply Line and pdor 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 es practicable and shall promptly thereafter fiollow up with written
notice of such enty.
9.1
9.2
9.3
10.
2 Foltrt. 421; Rev. 20200805
Tracking #21W-1 1 309
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while
on the Pr€mises.
11.3 While on the Premises, Licensee shall use only public roadways to cross ftom one side of Licenso/s tracks
to the other.
1'l.4 Any contractors or subcontractors performing work on the ElecEic Supply Line or enterlng the Premlses on
behalf of Ucensee shall be deemed servants and agentrs of Licensee for purposes of this License.
1'1.5 Under no eonditions shall Licensee be permitted to conduct any tests, investigatlons 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 Llcensee
has obtained priorwritten approvalfrom Llcensor. Licensee shall, at its sob cost and expense, perform all
activities on and about the Premlses, including without limitation all construcUon and maintenance of fie
Electsic 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
operatlon and aclivities of Licensor or existing third parties, or (iii) the rights or interests of hird parlies. !f
ordered to cease using the Premises at any time by Licensor's persmnel due to any hazardous condition,
Licensee shall lmmediately do so. ltlotwitrstanding the forcgoing dght 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 responsibilig to ensure that Licensee's use of the Premises is safe.
Neither the exercise nor the failure by Llcensor to exerclse any rlghts granted in this Section will alter the
liability allocation provided by this License.
11.6 Ucensee shall, at Its sole cost and expense, constsuct 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 wilh (i)
the existence or use of preserf or future tacks, roadbeds, or property of Llcensor, (ii) the safe operation
and acUvlties of Llcensor or existing third parties, or (iii) the rights or interests of third parties. The
consmJction of the Electric Supply Une shall be completed within one (1) year of the Efiective Date, and
any subsequent maintenance shall be completed within one (1) year of initiatlon. Wthin ffieen (15) days
after completlon of the constuctlon of the Electrlc Supply Line or he performance of any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, resbre the Premises to
substantially their state as of the Effective Date, unless o$eruisE approved In advance by Licensor in
writing. On or before explratlon or termlnation of this License for any reason, Licensee shall, at its sole cost
and expense, sunenderthe Premises to Licensor pursuant to the terms and conditions setforlh ln Sec'tlon
24 hereof.
11.7 Licensor may direct one or more of its field engineers or inspec.tore to observe or inspect ths construction
and/or maintenance of he Electric Supply Line at any time br compliance wlth the Drawings and
Specifications and Legal Requlrements (defined below). Licensee shall reimburse Ucensorfor the cost of
such observation or inspec'tion related seMces pursuant to Section 8. lf ordered at any time to halt
onstruction or maintenance of the Electric Supply Line by Licensor's personnel due to non-compliance
with the Drawings and Spedfications or any other hazardous condltlon, Llcensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to
observe or inspect, or to halt work on, he Ehctric Supply Line, lt being solely Licensee's responsibility to
ensune that the Electric Supply Line is constructed and maintained ln strict accordance with the Drawings
and Specifications and in a safe and uorkmanlike manner in compliance with all terms hereof. Neither the
exercise of, nor the failure by Licensor to exercise, any right granted by this Secton wlll alter in any way
the liability allocation pmvided by his License. lf at any time Licensee shall, in the sole judgment of
Licensor, fail to properly perform its obligations under this Secffon 11, Licensor may, at its option and at
Licensee's sole expense, arange fior the perbrmance of such work as it deems necessary for the safety of
its operations and activities. Ucensee shall prompUy reimburse Lbensor for all costs and expenses of such
work, pursuant to the terms of Sec{lon 8. Licenso/s fallure to perform any obligations of Licensee shall
not alter the liability allocation hereunder.
3 Form 421; Rev.20200605
'12,
Tracking #21W-11309
1'1.8 Licensee shall, at lts sole cost and expense, consfuct 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, lncludlng but
not Iimited to physical interference ftom electromagnetic induction, electrostetic induction, or from stray or
other cunents, with the facllltles of Llcensor or of any lessee or licensee of Licensor, or in any manner
lnterfere with the operation, maintenance, or use by Licensor of ib right-of-way, facks, sfuctures, pole
lines, signal and communication lines, radio, or other equlpmont, devices, other property or appurtenances
therelo, License€ agrces immediately to make such changes in the Electric Supply Line and fumish sucfr
pmtective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be
necessary, in the judgment of Licensor's representatlve, to ellminate such interference. The cost of such
protecttue devices and their installations shall be bome solely by Licensee, lf any of the lnterference
covered by this Section ll.9 shall be, in the judgment of Licensor, of such lmportance to the safety of
Licenso/s operations as to require immediate conec,tive action, Licensee, upon notice from Licensol shall
either, at Licenso/s election, cease uslng the Electric Supply Line br any purpose whatsoever and remove
same, or rcduce the voltage or load on the Electric Supply Llne, or take such other interim protective
measures as Licensor may deem advlsable, until the protective devices and/or replacement equipment
required by this Sectbn 11.9 have been installed, put in operation, tested, and found to be safsfaciory to
conect the interferenoe.
't1.10 Licsnsoe shall, at its sole cost and expense, remo\re allcombustible materialfrom around rrooden poles
on the Premises, if any, and will at all times keep the spaoe around such poles free of such material, and if
removal of such combustible material shall not be attended to with fifteen (15) days after havlng 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 lncuned.
Borino and Excavation.
12.1 Prior to Licensee conducting any borlng, excavation, or similar work on or about any portion of the Premises,
Licensee shall contac't the applicable State's call-befure-youdig utility localion seMce to have 3d parties
mark the location of utilities. Lioensee shall explore the proposed location for such work with hand bols to
a depth of at least three (3) feet below the surface of the ground to detemine whether pipelines or other
structures exist belovrt the surface, p!gy!.@, however, that in lieu of he foregoing hand-tool exploration,
Lbensee shall have the right to use suitable detecton equlpment or other generally accepted industry
practice (e.9., consulting with the State lnftastnrcture Corporation) to determine the existence or locaton
of pipelines and other subsurface structures prior to ddlling or excavatng with mechanized equipment.
Licensee shall request information from Licensor concemlng the existence and approximate location of
Licenso/s underground lines, utllities, and plpelines at or near the vicinity of the proposed Electic Supply
Line by contacding Licenso/s Telecommunications Helpdesk, cunently at 1-800-533-2891 (optbn 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 wlll provide Licensee with the inbrmation Licensor has in its possession
regarding any existing underground lines, utilities, and 6ripelines at or near the vicinity of the proposed
Electric Supply Line and, if applicable, identifr the location of such llnes on lhe Premises pursuant to
Licensor's standard procedures. Licensor does not wanant the accuracy or completeness of information
relating to subsurface conditions of the Premises and Licensee's operations will be sublect at all times to
the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less han 10.0 feet below bottom of rail, a soil
investigation must be perbrmed 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 Licenso/s reasonable opinion that granular material is presenl, Licansor
may select a new location for Licensee's use, or may require Licensee to fumish for Licensor's review and
approval, in Licenso/s sole discretion, a remedial plan to deal with the granular material. Once Licensor
has approrred any such remedlal plan ln wrifng, Licensee shall, at Licensoe's sole cost and expense, carry
out the approved plan in accordance with all terms thereof and hereof.
4 Fotm 421; Rev. 202ffi605
Trackkrg #21W-11309
12.3 Any open hole, boring, orwellconstructed on the Premisqs by Licensee shall be safuly covered and secured
at all times when Licensee is not rvorking in the aclualvicinity hereof. Folloring completion of that portion
of the work, all holas or borings constructed on the Premises by Licensee shall be:
12.3.1 filled in to sunounding ground lewl with compacted bentonite grout; or
12.3.2 otherwise secured or retircd in accordanae with any applicable Legal Requlremont. No excavated
materlals may remain on Licensor's prop€rty for more than ten (10) days, but must be propedy
disposed of by Licensee in acc-odance wlth applicable Legal Requirements.
LIABIUTYAND INSURANCE
13. Liabilitv and lndemnification.
13.1 For purposes of this License: (a) 'lndemnitees' m€sns Licensor and Licenso/s affiliated companies,
partners, slJooassons, assigns, lega! representatiws, officers, directorc, shareholders, employees, ard
agonts; (b)'Llabilitles" means allclaims, llabllltes. fines, penal0es, @sts, damages, losses, liens, causes
of action, suib, demands, judgments, and expenses (including, without limitation, court costs, reasonable
aftomeys' fees, costs of investigation, rernoval and remediation, and govemmental oversight costs)
environmentral or othenrise; and (c) "lJcolreo Partias" meanE Liconsee and Ucensee's officsrs, agents,
invitees, licensees, employees, or eonbactorc, or any party dinectly or indirectly employed by any of them,
or any party they conbol or exercise control over.
13.2 TO THE FUII-EST EXTENT PERTTTTED BY LAW, UCENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE,INDEIIilIFY, DEFET{D AND HOL.D HARTLESS INDEI'NITEES FOR,
FROii, AND AGAINST ANY AND ALL LIABILMES OF ANY MTURE, KIND, OR DESGRIPTION
DIRECTLY OR TNDTRECTLY AR|S|NG OUT OF, RESULnNG FROit, OR RE|-ATED TO (lN WHOLE OR
!N PART):
13.2.1 THIS UCEilSE, INCLUDII{G, WTHOUT UTITANON, lTS ENVIROI{TENTAL PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 UCENSEE'S OGCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDffiON AND STATUS OF THE PREITIISES CAUSED BY OR
CONTRIBUTED TO BY LIGENSEE, OR
13.2.5 ANYACT OR OTISSION OF ANY LICENSEE PARW.
13.3 TO THE FULLEST EXTEiIT PERTITTED BY I.AW, LICENSEE NOW AND FOREVER WAIVES, AND
WLL INDETNTFY, DEFEND, AND HOLD THE INDEMNITEES HARIiLESS FROilI ANY AND ALL
CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS UCENSE, LIGENSOR IS A GENERATOR,
OYYNER, OPERATOR, ARRANGER" OR TRANSPORTER FOR THE PURPOSES OF THE
COIIPREHENSIVE ENVIRONMENTAL RESFONSE, OOTPENSATION, AND LIABILITY ACT, AS
ATENDED ('CERCLA') OR OTHER ENVTRONTENTAL LAWS (t EFTNED BELOW. NOTHING lN
THIS UCENSE IS MEANT tsY EIT}IER PARTY TO CONSNruTE A WAIVER OF ANY INDEMNITEE'S
COTTON CARRIER DEFENSES AND THIS LICENSE SHOULD ITIOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT GONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDETNITEE'S
COMUON CARRIER DEFENSES, LICENSEE AGREES TO INDETNIFY, HOLD HARTILESS, AND
DEFEND INDEISNITEES FOR ANY LTAdUNES RELATED TO THAT CONSTRUCTION OF THIS
UCENSE. IN NO EVENTAS BETWEEN LICENSORAND UCENSEEAS TO USE OF THE PREMISES
AS COI{TE]TIPLATED BY THIS UCENSE SHALL LICENSOR BE RESFONSIBLE TO UCENSEE FOR
THE ENVIRONUENTAL CONDITION OF THE PRETIIISES.
5 Fom 42i; Rev. Z)llfi)605
14.
't5.
Tracftlng #21W-11309
13.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EI'PLOYEE OF
ANY INDEMNITEE, TO THE FULLEST EXTENT PERilI]TIED BY LAW, LIGENSEE SHALL, AND S}IALL
GAUSE tTS COI{TRACTOR TO, RELEASE, tNDElrNtFy, DEFEND, AND HOLD THE |NDEI|NITEES
HARiILESS FROT AND AGAINST ANY LIABLMES ARISING OUT OF OR RELATED ITO (IN WHOLE
oR rN PART! ANY SUCH ASSERnON INGLUDING, BUT NOT LIMTTED TO, ASSERTTONS OF
EMPLOYilIENT BY AN INDEIINITEE REI.ATED TO THE FOLLOYI'ING OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EiTPLOYERS' LIABIUTY ACT, THE SAFETY APPUANCE ACT, TllE
LOCOMOT]VE INSPECNON ACT, THE OCGUPATIONAL SAFETY AND HEALTH ACT, TI{E
RESOURCE CONSERVANON AND RECOVERY ACT, AND ANY S!ilILAR STATE OR FEDERAL
STATUTE.
13.s THE FOREGOING OBLIGANONS OF UCENSEE SHALL NOT APPLY TO THE EXTENT LIAHL]nES
ARE PROXIMATELY GAUSED BY THE GROSS NEGLIGENCE OR VNLLFUL TISCOIiIDUCT OF ANY
!NDEi,NME, BUT SHALL APPLY TO ALL OTHER LIAALMES, INCLUDIITIG THOSE ARISING FROT,
OR ATTRIBUTED TO ANY OTHER ALLEGED OR AGTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT UABIUTY OF ANY INDEMNITEE,
13.6 Upon written notice trom Licensor, Licensee agrees to assume the defense of any lawsult or other
proceeding brought against any lndemnitee by any entity, relating to any matter covered by this License for
which Ucensee has an obllgation 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 limlted to, reasonable
attomeys'fees, investigators'fres, litigation and appeal expenses, seltement payments, and amounts paid
in satisfaction of judgments.
Personal Prooertv Risk of Loss. AII PERSONAL PROPERTY' INCLUDING, BUT NOT L!illlTED TO, FIXTURES,
EQUIPmENT, OR RELATED itATERtALS UprON THE pREttSES WLL BE AT THE R|SK OF LTCENSEE ONLY,
AND NO INDEI NITEE YUILL BE LIABLE FOR ANY DATAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN W}IOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEiINITEE.
lnsurance. Licensee shall, at itrs sole cost and expense, procur€ and mainhin during the term of this License the
following insurarm covemge:
15.1 Qommercial General Liabilitv "CGL' lnsunance.
a. The poliry witl 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 co/erage be in an amounl less than the amounl othenrise canied
by Licensee. Coverage must be purchased on a post 2004 ISO occurrenoe form or equivalent and
include coverage for, but not llmlted to, the following:. Bodily lnjury and Property Damage. Personal Injury and Advertising lnjury. Fire legalliablllty. Products and completed operations
' Contrac{ual Liability for an "lnsured Contrac't' consistent with the definition under the standard ISO
general liability policy form.
b. This policy will include the following endorsements or language, whlch shall be indlcated on or attached
to the certlflcate of lnsurance:. The definition of 'lnsured Contract'will be amended to remove any exclusion or other limitation for
any work being done within 50 feet of Licenso/s property;. Waiver of subrogation ln fuvor of and acceptable to Licensor;. Additional insured erdorsement in favor of and acceptable lo Licensor and Jones Lang LaSalle
Brokerage, lnc.to include coverage for ongoing operations and completed operations;. Separation of insureds;r Ttp pollcy shall be pfimary and non+onfibuting with respct to any insurance canied by Licensor.
6 Form 421: Rev. 2(I2fi)605
Tracking #21W-11309
c. The parties agree thd the workers' compensataon and employers' liability related exclusione in the CGL
policy(s) are intended to apply to employees of the policyholder and will not apply to Llcensor's
employees.
d. No other endorsements that limit coverage with respect to Licenses's obligatbns under this agreenrent
may be included on the policy.
15.2 BusinessAutomobllelnsurance
a. The insurance will provide minimum coverage with a combined single limit of at least $1,000,000 per
accident, and include covemge for, but not llmited to the follodng:, Bodily injury and property damage.. Any and all vehides owned, used or hlred.
b. The policy will include the following endorsements or language, wtrich will be indicated on or attached
to the certificate of insurance:. Walver of subrogation in favor of and acceptable to Licensor;. Additional insured endorsement in favor of and acceptable to Licensor;. Separation of insureds;. The polkry shall be primary and non-contributing with respect to any insurance canied by Licensor.
15.3 Worke6'Comoensationand Emolovers' Llabilitv lnsurance
a. The policy will provide ooverage of all employees perfiorming any part of the r,rork or services
includlng oovemge for, bul not llmlted lo:. Llcensee's statutory liability under the workers' compensation laws of the state(s) in which the work
or seMces are to be performed. The policy will cover all of Licensee's employees, regadless 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 larguage, which shall be indicated on or
attached to the cerlificate of insurance:. Waiver of sub,rogatlon ln favor of and acceptable to Llcensor.
15,4 Railroad Protecdive Liabilitv lnsurance. The policy will name only Licensor as the lnsured and will provide
coverage of at least $2,000,000 per oocunence and $6,000,000 in the aggregate. The coverage obtained
under this policy shall only be effective during tte initial installation and/or construction of the Electric Supply
Line. THE CONSTRUGTION OF THE ELECTRIC SUPPLY LINE SHALL BE COITPLETED wm{!N Ol{E
(1) YEAR OF THE EFFECTIVE DATE. lf turther maintenance of the Electric Supply Line is needed at a
later date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy will be
issued on a standard ISO form CG 00 3512 04 and indude he following:. Endorsed to indude the Polludon Excluslon Amendmenl. Endorced to lnclude the Limited Seepage and Pollution Endomement.r Endorsed to remove any exclusion for punitive damages.. Endorsed to include Evacuation Expense Coverage Endorsement.r No other endorsements restricting ooverage may be added., The odginal policy must be prcvided to Licensor and Licensee shall not perform any uork or seMces
of any kind under this agreement until Licensor has reviewed and approved the policy.. The definlflon of 'Physical Damage to Property" will be endorsed to read: 'means direct and accidental
loss of or damage to all property o^rred by any named insured and all property in any named insured's
care, custody and contsol (including, but not limited to rolling stock and thelr contents, mechanical
consfructlon equlpment or motlve power equlpment, rallroad hacks, roadbeds, catenaries, signals,
trnnels, bridges and buildings) arising out of the acts or omissions of the contractor named on the
Declarations."
7 Form 421: Rw.20200005
Tradring #21W-11309
ln lieu of providing a Railroad Protective LiaUlity Policy, for a period of one (1) year fom he Effective Date,
Licensee may participate in Licenso/s Blanket Railroad Protective Liability lnsurance Policy available to
Licensee or its contractor. The limits of coverago are the same as above. The cost is $506.00.
Ucansee elects to particlpate ln Licenso/s Blanket Policy;
Licensee dcclinee to participale in Licenso/s Blanket Policy
15.5 OtherReouirements:
15.5.1 Where allowable by law, no exdusion for punitlve damages may be induded in any poliry,
tr
o
15.5.2
15.5.3
15.5.4
Licensee agrees to walve lts rlght of recovery agalnst Llcensor for all clalms and sufts agalnst
Licensor. ln addition, Lkrnsee's insurers, through tho terms of the polkry or policy endorsement,
waivE their right of sub,rogation against Licensor for all claims and suits. Licensee further waiws
fts rlght of recovery, and lts lnsurers elso walve thelr rlght of subrogaton against Llcensor for loss
of Lioens€e's owned or leased property or property under Licensee's care, custody, or confol.
Allocated Loss Expense, including but not limited to defense costs and expenaes, will be in addition
to all policy limits for coverage under the insurance requirements.
Licensee ls not allowed to self-lnsure wlthout the prlor wrltten consent of Licensor. lf Llcensor
allows Licensee to self-insure, Ucensee shall directly cover any self-insured retenUon or other
financial responsibility for claims in lieu of insurance. Any and all Licensor liabllities that would
othsrwise be covered by Lioensee's insurance in accordance with the proMsions of this agreement,
will be covered as if Ucensee elected rpt to include a self-insured retention or other financial
responsibi I ity for claims.
15.5.5 Prior to entering the Premises or @mmencing the services or wort, Licensee shall fumish to
Licensor an acoeptable certificate(s) of hsurance from an authorized representative evidencing he
requlred coverage(s), endorsements, and amendments.
15.5.6 Licensee shall notify BNSF in wdling at least 30 days prior to any cancellation, non+enewal,
subsfftutlon or materlal alteration of any lnsurance requlrement.
15.5.7 Any insurance policy shall be wdtten by a reputable insurance oompany acceptable to Licensor or
with a cunent Best's Guide Rating of A- and Class Vll or better, and authorized to do business in
the state(s) in which the servbe is to be provided.
15.5.8 lf the covorage provlded by any of the insurance policies required by this agreement is purchased
on a 'claims made' basis, Licensee hereby agrces to maintain co\rerage in force for a minimum of
thrce years after expiration, cancellation or termination of this agrsement.
15.5.9 Licensee agrees to provide evidence to Licensorthat it has the required coverage in place at least
annually or in the event of a renewal or material change of coverage.
15.5.10 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance
agen(s[broker(s), ard that Licensee has insburcted them to procure the insurance @ve]age
required by this License.
15.5.11 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modifu
the insurance requirements to reflect the then-cunent risk management practices in the railroad
industry and undennrriting practices in the insurance industry.
15.5.121f Licensee will subcontract any portion of the operation, Licensee shall require that the
subcontractor provHe and maintrain lnsurance correrage(s) as set forth hereln, namlng Licensor as
I Fom 421; Rev.2020605
Tracking tr21W41n9
an additbnal insured. In addition, Licensee shall require that the subcontactor shall release,
defend and indemnifo Licensee to the same extent and under the same terms and conditions as
Ucensee is required to rclease, defend and indemniff Ucensor under this agreement.
15,5.13 Failure to provide evUence as requlred by this sec{ion shall ent'te, but not require, Licensor to
terminate this License immediately. Aceptrance of a certfrcala that does not cornply with this
soction shall not operate as a waiver of Lioensee's obligations hereunder.
15.5.14The fact hat Ucensee obtains insunance (induding, witrout llmltetion, self-insurance) shall not
release or dimlnlsh Licensee's lhbilities or obligations including, without limltation, the liabilities and
obligations underthe indemnity provlsions of the Llcense. Damages recoverable by Licensor shall
not be llmlted by the amount of the required insurance @verage.
1 5.5.1 5 ln he event of a claim or lawsuit involving Licensor arlslng out of thls Agreehent, Licensee will
make the policy covering such daims or larrtcuits available to Lilrnsor.
1 5.5.1 6 lf Licensee maintains broader coverage and/or higher limib than the minimum
requiraments in his Agreement, Ucensor requires and shall be entitled to the broader ooveiage
and/or the higher limits. Any arrailable insunance proceeds in excess of the specified minimum
llmits of insurance and coverage shall be availaHe to Licensor.
1 5.5.1 7 These insurance provisions are intended to be a separate and distinct obligation on the part of the
Llcensee. Therefure, these provisions shall be enforceable and Licensee shall be bound ftercby
regardless of wfiether or not lndemnity provisions are determined to be enforceable ln the
jurisdiction in which the work or servbes performed under this License is performed.
15.5.18 For purposes of thls Sectlon 15, Licensor shall mean "Burlington Northem Santa Fe, LLC", "BNSF
Railway Company" and the subsidiaries, sucoessors, assigns and affiliates of each.
GOTPLIANCE WTTH I.AWS. REGUIATIONS. AND ENVIROilME}TTAL XIATTERS
16. Comoliancewith Lar,ra. Rules. and Reoulailons.
16.1 Llcensee shall observe and comply with any and all applkxble federal, state, local and hlbal laus, statutes,
regulatims, ordinances, orderr, covenants, rcsfictions, or decisions of any court of compotont jurisdictlon
('Legal Requiremente") relating to the consbucUon, malntenanoe, and use of the Ebcaic Supply Une and
the use of the Prembes.
16.2 Prior to entering the Premises, Lic€nse€ shall and shall cause its contsacto(s) to comply with all of
Licenso/s applicaHe safety rules and regulations. Ucensee must ensure hat each of its employees,
contractors, agents or lnvitee erilering upon the Premises completes the safety orientation program at the
Website \ruw.BNSFconhactor.com'(the "Safuty Orientatlon') within one year prior to entering upon the
Premises. Mditionally, Licensee must ensure that each end every employee of Ucensee, its conhactors,
agents and lnvltees possess a card certifying completion of the Safety Orientation prlor to enterlng 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 obtaln on or before the date it or its conbactor enters the Premises, any and all additional
rightsof way, eas€ments, licenses and other agreemenls relating to the grant of rights and interests in
and/or a@ess to the Premises (collectively, the "Righte') and such other rights, llcenses, permits,
authorizstions, and approvals (including without limitation, any nscessary local, state, federal or trlbal
authorizations and environmental permits) that are necessary in order to permit Licensee to construct,
maintain, own and oporate tha Electic Supply Line and othenrlse to perform its obligations hereunder in
accordance wlth the terms and condifions hereof.
I Form 421; Rsv. 202C)6(E
Tracking #21W-11309
14.4 Licensee shall eiher require that the initia! 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 ronewal rights thereunder, or
othenvise acquire such extensions, additions and/or replacements as may be necessary, in order to cause
the stiated tenn thereof to be continued until a date that is not earller than lfie last day of the term of this
License.
16.5 Upon the explration 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 aM
regulations in its use of the Premises, including, but not limited to, the Resource Conservafion and Recovery
Acl, as amended (RCRA), the Clean Water Act, he Oll Pollution Act the Hazardous Materials
Transportation Act and CERCLA (collectivety refened to as the 'Envftonmenta! Laws'). Licensee shall
not maintain a treatrnenl, storage, transfer or disposal facility, or underground storage tank, as deflned by
Environmental Laws on the Premisss. 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 wasten or 'hazardous sub6tances", as
"hazardous waste' and 'hazardous substances" may now or in the future be delined by any federal, state,
or local govemmental agency or body on the Premises. Licensee agrees periodically to fumlsh Llcensor
with proof, satisfac-tory to Licensor that Licensee ls ln compliance with the provlslons of this Seclion 17.2.
17 .3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (8{X)) 832-il52
of any known (l) release of hazardous substances on, from, or affecting the Premises, (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 Premlses. Licensee also shall give Licensor
immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to
or othenrise curc sucfr release or violation.
17.4 lf Licersor 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 occuned or may occur during the term of this
License, Licensor may require Licenses, at Licensee's sole risk and expense, to tiake timely measures to
investigate, remediate, respond to or othenrise cure such release or violation affecting the Premises or
Licenso/s rig htof-way.
17-5 Licensee shall promptly report to Licensor in writing any conditions or actiMties upon the Premises known
to Licensee which create a risk of harm to persons, proporty or the environment and shall take whatever
action is necessary to prevent injury to persons, property, or the environment arlslng out of such condltions
or activities; proMded, 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 actMties.
DISGLAIMER OF WARRANTIES
18. No Wananties.
18.1 LIGENSOR'S DUNES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LIGENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANNES, NOW OR
IN THE FUTURE. NO REPRESENTANONS OR WARRANTES HAVE BEEN ]IIADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY AND ALL
-10-Fom 421; Rev.20200605
Tracking #21W-11309
WARRANTIES, EXPRESS OR IUPUED, WITH RESPECT TO THE PRETISES OR TY}IICH TAY EXIST
BY OPERATION OF LAW OR IN EOUITY, INCLUDING, VUTHOUT UTITAIION, ANY WARRANTY OF
M ERCHANTA EIUTY, HABITABIUW OR FITN ESS FOR A PARTTCULAR PU RPOSE.
18.2 LICENSOR UAKES NO WARRANW, REPRESENTATION OR CONDMON OF ANY KIND, EXPRESS
OR ITPLIED, CONCERNIiIG (A) THE SGOPE OF THE LICENSE OR OTHER RIGHTS GRANTED
HEREUNDER TO UCENSEE OR (Bl UWETHER OR NOT UCENSEE'S CONSTRUGnON,
TAINIENANCE, OWNERSHIP, USE OR OPERATIOITI OF THE ELECTRIC SUPPLY IINE W|LL
VIOI.ATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WTHOUTLITITATION, ANY LEASES, USE RIGHTS, EASETENTS AND UEilS OFANY
THIRD PARTY.
19. Disclaimer of Wanantv for Quiet Eniovment. LICENSOR DOES NOT WARRANT ITS T|TLE TO THE PREMISES
NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS TADE.
20. Evlcflon at Rlsk of Llcensee. ln case of the eMction of Licensee by anyone owning, claiming title to, or claiming any
interest in the Premises, or by Orc abandonrnent by Licensor of the affected rail conidor, Licensor shall not be liable
(i) to refund Ucensee any compensstion paid hereunder, except for the prorata part of any recuning charge paid
in advanco, or (ii) for any damages or costs Licensee sustains in connection with the evic'tion.
LIENS AND TAXES
21. Liens and Charoes. Lbensee shall promptly pay and discharge any and all liens arising olt of any constuction,
alterations or repalrc done, suffered or permltted to be done by Llcensee 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 Iiens to the Premises; provided, ho\ffev€r, that fiallure of
Licensor to take any such action shall not relieve Licensee of any obligation or liabillty under this Sec{lon 21 or any
other Section of this License.
Taxes. Licensee shall pay when due any taxes, asgessments or other charges (collectlvely, "Taxee') levied or
assessed by any govemmental or quasi4owmmental body upon the Electric Supply Line or any ofier
improvements construc{ed or inshlled on the Premises by or fur Licensee (collectively, the "lmprcvemants') or
any Taxes levied or assessed against Licensor or the Premises thal are attrlbutable to the lmprovements.
DEFAULT. TERMINANON. AND SURRENDER
Default and Termlnation. ln additlon to and nol ln limitation of Licensor's dght to terminate for failure to provide
evidence of insurance as required pursuant to the terms of Sectlon {5, the following events are also deemed to be
evenb of defiadt pursuant lo wtrich Licensor has he right to teminate as set forth balow:
23.1 lf defaultshall be made in any of Licensee's covenants, agreements, orobligations contained in this License
and Licensee fails to cure said defuutt wihin hirty (30) days afier wrlften notlce ls provltted to Lkrnsee by
Licensor, or in case of any assignment or transfer of this License in violation of Sec{lon 20 below, Licensor
may, at itrs option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right b tenninate this License immediately if
Licensee fails to provide evidence of insurance as required in Sec'tion {5.
23.2 Should Licensee not comply fully wilh the obligations of Section 17 regardhg the handling or transporflng
of hazardous waste or ha2ardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving live (5) days' notice of termination
upon Lixnsee.
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 afbct Licensor's ablllg
22.
23.
-t't-Form 421; Rev. 202fl)605
Tracking #21W-11309
to enforce any Section of this License. The remedies set forth in this Sectlon 23 shall be in addition to,
and not in limitaUon 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 Ucense br failure to provide evidence
of insurance or oocurronce of defaultrs as desoibed 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 parg hercto from any liabllity or obligation under the License, whether of indemnity
or othenrise, 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. Sunender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at ib sole cost and
expense:
24.1.1 ff so directed by Licensor in writing, remove the lmprovements, the Elecfiic SuppV Line and all
appurtenances thereto, or, at the sole dlscretion of Llcensor, appropriately decommission the
Electric Supply Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premlses or Licensor's other property arising ftom, growing
out of, or connected with Licensee's use of the Premises;
24j.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 laave the Premises in substantially the condition which existed as of the Effectlve Date or as
otherwise agreed to by Licensor.
24-2 Upon any expiration or termination of this License, if Licensee fails to sunender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration Obligafions"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Llcensee
to complete the Restoration Obligations, and all liabililies and obllgations of Licensee hereunder shall
continue in effect until the Premises are sunendered and the Restoration Obligations are completed.
Neither termlnation nor expiration sha!! release Licensee ftom any liability or obligation under this Llcense,
whether of indemnity or otherwise, resulting ftom any acts, omisslons or events happening prior to the date
of termination, or, if later, the date when Llcensee sunenders 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 ttre date of such
termination of its tenancy, then Licensor may, at its election, either: (i) remove he 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 herefor, reimburse Licensor for cost incuned, (ii) upon written notice to
Licensee, teke and hold the Electric Supply Line and the other Improvements and personal property as its
sole property, without payment or obligalion to Lioensee thersfor, 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 Liccnsor, provide a bill of sale in a form
acceptable to Licensor conveying the Electric Suppty Line and the other lmprovements lo Licensor for no
additional consideration.
iilsGEL!-ANBOLrsi
Successors and Assions. All provisions contained in this License shall be binding upon, inure to the benefit of, and
be enforceable by the respective su@essors and assigns of Llcensor and Llcensee to the same extent as if each
such successor and assign was named a party to thls Llcense.
25
-12-Form 121:' Rev. 20200605
28.
27
Tracking #21W-11UJfJ
Assionment.
26.1 Llcensee may not sell, assign, fansfer, or hypothecate this Licens€ or any right, obligation, or interest
herein (eiUrer voluntarily or by operation of law, merger, or otherwlse) wlthout the pdor written consent of
Ucensor, which consent may not be unreasonably withheld or delayed by Licansor, Any attempted
asslgnment by Licensee in violation of this Sectbn 26 shall be a breach of tris License and, ln addltion,
shall be roidable by Liensor in ils sole and absolute discretion.
26.2 For purposes of thb Sectbn 26, the word "assign'shall include without limitation (a) any sale of the equity
interests of Licensee following which the equp interest holders of Licensee immediately prior to such sale
own, dlrectly or indirecty, less tlran 50% of the combined voting power of the outstanding voting equlty
interests of Licensee, (b) any sale of al! or strbstantially all of the assets of (l) Llcensee and (ii) to the extent
such entities exist Licensee's parent and subsidiaries, taken as a whol6, or (c) any reorganization,
recapitallzation, marger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalzation, mengsr or consolidation following which the equity interest holders of
Licensee immediately pdor to such reorganization, recapitalization, merger or consolidation own, direcUy
or indirecty, at least 50% of the combined roting power of the oubtanding voting equity interests of
Licensee or any suooessor thereto or the entlty resultng ftom such reorganization, recapihlization, merger
orconsolldation 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 IN
LICENSOR'S SOLE DISCRETION.
26.3 l.lotwithstanding the provisions of Sectlon 26.1 above or anythlng contained in this License to the conhary,
if Licensee sells, asslgns, transfisrs, or hypothecates Orls License or any interest herein in contravention of
the prcvisions of thls Llcense (a "Purported Aseignment') to another party (a "Purported Tranlferee"),
he Purported Transferee's enjoynent of the rights and prMleges granted under thls Llcense shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this
Ucense, lncluding but not limited to the obligation to comply with the prcvisions of Scctlon 15 above
conceming insurance requirements. ln addition to and not in limitation of the furegolng, Lloensee, for itself,
tts successors and assigns, shall indemnifo, defend and hold harmless Licensor for all Lhbilities of any
nature, klnd or descripton of any person or entfi directy or indirectly arising out of, resulting from or related
to (in whole or in part) a Purported Ass[nment. The provisions of this Sectlon 26.3 shall survlve the
expiration or earliertermination of this License.
26.4 Licensor shall have the dght to transfer and assign, in whole or part, all of lb rlghts and obllgatons under
this License, and upon any such hanshr or assignment, Ucensor shall be released fiom any further
obligations hereunder and Llcensee agrses to look solely to the successor in interest of Ucensor for the
performanca of such obligations.
Notices. Any notice, invoba, or other wrltlng required or permitted b be given hereunder by one party to the other
shall be in writing and the same shall be given and shallbe deemed to have been served and given if (i) placed in
the United States mail, csrtifiod, retum receipt requested, or (il) deposlted lnto the custody of a natonally recognized
orremight delivery service, addressed to the party to be notified at the address for such party specffied 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 Llcenson Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Rd., Suite 110
FortWorth, D( 76155
Ath: Permits/Licenses
-13-Form 42'l : Rev. 202fi)005
28.
29.
30.
31.
33.
34.
35.
32.
Tracking #21W41n9
with a copy to:BNSF Railway Company
2650 Lou Menk Dr.
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
lf to Lioensee:PacifiCorp
825 NE Multnomah Street, Suite 1700
Porfland, OR97232Attn: lmogen Taylor
SuMval. Neither termination nor expiration will release elther party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting ftom any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date when the Electic Supply Line and the other lmprovements are
removed and the Restoration Obtigations are completed in accordance wlth the terms hereof.
Recordation. lt is understood and agreed that thls License shall not be placed or allowed to be placed on public
record.
Aoolicable Law. All questions concerning the interpretaton or appllcaton of provisions of this License shall be
declded 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 sucfi manner
as to be effective and valid under applicable law, but if any provision of this License shall be prohlblted by, or held
to be invalid under, appllcable law, such provlsion shall be ineffuctive solely to he extent of such prohibition or
inrralidity, 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 agreernent between Licensor and Licensee with rcspect to all
matters relating to Licensee's use of the Premises, and supersedes any and all other agreemenb between the
parties hereto relating to Licensee's use of the Premises as described herein. However, nothing hereln is lntended
to terminate any survMng obligation of Lirnsee or Licensee's obligation to defend and hold Licensor harmless in
any prior written agreement between he partftes.
Joint and Several Llablllw. lf Licensee consists of two or mone 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.
Interpretation.
35.1 This License shall be intepreted in a neutal manner, and not more strongly for or against any party based
upon the souroe of tte drafi.smanship; both padies hereby agree hat this License shall nol be subject to
the principle that a conhact would be construed against the party which drafted the same. Article titles,
headings to sections and paragraphs and the table of contents (lf any) are lnserted for convenience of
refurence only and are not intended to be a part or to affect the meaning or interpretation hereof. The
exhibit or exhibits refenod to herein shall be constued with and as an integral part of this License to the
same extent as if they were set forth verbatim hercin.
35.2 As used hereln, 'lnclude", 'includes'and 'includingo are deemed to be follo'rr/Bd by Vlthout limitation'
whether or not they are in fact followed by such words or words of like import; \rriting", \ryritten" and
comparable terms rebr to printing, typing, lithography and other means of reproducing words ln a visible
form; references to any percon are also to that person's suocessors and permitted assigns; "hereof,
"herein", "hereundef arxd comparable terms refer b the enUrety hereof and not to any particular article,
section, or other subdivision hereof or attacfiment hereto; references to any gender lnclude references to
the masculine or feminine as the context requires; references to the plural include the slngular and vice
-14-Fom421; Rev.20200005
TracklrB #2'lW-11309
wrsa; and references b this License or other documents are as amended, modified or supplemented fmm
0me lo dme.
36.CounteroarB. This License may be executed in multiple oounterparb, each of which shall, for all putposes, be
deemed an orlglnal fut wtrlch together shallconstitnb one and the same instrument, and the signafure pages fiorr
any counterpart may be appended to any other counterpartto assemble fully execubd documents, and countorparts
of thls Llcense may also be exchanged electuonically and any elec{ronic verslon of any party's slgnatre shal! be
deemed to be an original dgnature fur all purposes.
37 Licenso/s Reorossntative. Jorps Lang LaSalle Brokerage, lnc. is aciing as representative for BNSF Railway
Company.
EID OF PAGE-SIGT{ATURE PAGE FOLLOWS
-15-Fom 421; Rev.2@(D005
THs lJoensehao been dulyqcarbd byhepailc lrercbas Eftctw Dab.
Tn*lm#lW-l1fl8
TJGEf,SOR
Bl.l8F Rrltmy Gornperry, a Ddsur*s corporatbn
ry Jonee L,mglssslh Broh*age,!rc.
4An &dthdrsn tuad, Sub 110
FortWortl, D(76165
ry
Odober 29t21
IJGEI{SEE:
PrcliCorp, an Orcgon ooryoratm
q,':Deanna Adamsffilffi,?ffi
ry
Tl0e:
hnnaTlalne
Dhucbr, Roal Estate lifltagomcnt
t6 Filnttzl: tuv.2Om006
COORDINATE SYSTEM: OR N TRACKING NO. 21W-11309
olc)l(ol
arlel
IIulg.
o-
=
EXHIBIT ''4"
ATTAC IGD TO COI{TRACT BETWEEN
BNSF RAILI'UAY COMPANY
AND
N
PACIFICORP
llN=150FT SECTION:DM.TOWNSHIP & RANGE:
.S. 0442 MP: 93.52 MERIDIAN:8t1t2021
-12a.O7a2fi
4o
:NOTE
ALL TRACKAGE AND ]MPROVEMENTS IN TRACK CORRIDOR
ARE LEASED BY BF-2OGJ7172 TOTHE PORTLAND & WESTERN
IRAILROAD, 1I{C.
DrgrtalGlobe Earlhstar Geographrcs.
USDA USGS IGN and the GIS User
om
DESCRIPTION OF WIRES OVERTRACK
WRES LOCA]EDAS S,}IOWN BOLD
TYPE
ETECTRIC
NUMBER
3
VOLTAGE
115,000 v
DISTAT.ICEABOVE
TOP OF RAIL
CLEARS RAILWAY
COMPATIY'S WRES
MILLERSBURG
COUNTY OF LINN JPMSTATE OF OR
36'
DRAWNG NO. 82451