20211123Notice of Affiliate Transaction-BNSF Railway.pdf

VIA ELECTRONIC FILING
November 23, 2021
Idaho Public Utilities Commission 11331 West Chinden Boulevard Building 8 Suite 201A
Boise, Idaho 83714-1021
Attention: Jan Noriyuki Commission Secretary
Re: PacifiCorp Notice of Affiliate Transaction — PacifiCorp and BNSF Railway Company Case No. PAC-E-05-8
Dear Ms. Noriyuki:
Pursuant to Commitment I 17(2), incorporated in the Idaho Public Utilities Commission Order No. 29973, issued February 13, 2006, as supplemented by Order No. 29998 March 14,
2006, in the above-referenced proceeding, approving the acquisition of PacifiCorp by
MidAmerican Energy Holdings Company (now Berkshire Hathaway Energy Company or BHE), PacifiCorp hereby provides notice of two affiliated interest transactions with BNSF Railway Company (“BNSF”).
PacifiCorp entered into license agreements with its affiliate BNSF Railway Company to
secure two “License for Electric Supply Line Across or Along Railway Property” permits (collectively, the “Licenses”). Permit #21W-11454 will allow 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
Henley, County of Klamath, State of Oregon, Line Segment 0055, Mile Post 6.93. Whereas
Permit #21W-11456 will allow 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 Henley, County of Klamath, State of Oregon, Line Segment 0055, Mile Post 7.35. Verified copies of the Licenses are included with
this Notice as Attachment A and Attachment B.
PacifiCorp is a wholly-owned indirect subsidiary of Berkshire Hathaway Energy Company. BHE is a subsidiary of Berkshire Hathaway, Inc. BNSF is also a subsidiary of Berkshire
Timothy K. Clark Senior Attorney 1407 W. North Temple, Suite 320 Salt Lake City, UT 84116 801-220-4565 [e-mail]
RECEIVED
2021 NOV 23 4:34 PM
IDAHO PUBLIC
UTILITIES COMMISSION
November 23, 2021 Page 2
2
Hathaway, Inc. Therefore, the ownership interest of Berkshire Hathaway, Inc., in BHE and in BNSF creates an affiliated interest relationship between PacifiCorp and BNSF.

Obtaining the Licenses is in the public because it allows PacifiCorp to work on facilities at or near the Henley station. This work is necessary to effect required project modifications in furtherance of its commitment to modernization and system reliability. Without the Licenses, 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 Licenses to PacifiCorp. BNSF uses
standardized pricing for these types of permits. PacifiCorp paid $5,034 for each of the 25-year Licenses, which includes the application fee, permit fee, and insurance. Please do not hesitate to contact me if you have any questions.

Sincerely,
Timothy K. Clark Senior Attorney PacifiCorp

Enclosures: Attachment A.pdf Attachment B.pdf

ATTACHMENT A

to PacifiCorp Notice of Affiliate Transaction

(@)JL[
November 10, 2021
PacifiCorp
Attention: Mr. Scott Mease
825 NE Multnomah Street, Suite 1700
Portland, OR 97232
Dear Mr. Mease:
Jones Lang LaSalle Brokerage, Inc.
4200 Buckingham Rd., Suite 110
Fort Worth, Texas 76155
tel [phone], fax [phone]
21 W-11454
Enclosed please find one (I) fully executed Electric License Agreement. A copy of the executed agreement must
be available upon request at the job site as authorization to do the work. Please contact BNSF's Scheduling
Agent at wilsoncompanv.utility.ic@,wilsonco.com or 816-556-3624 at least fifteen (15) days in advance of entry
and BEFORE YOU DIG, CALL [phone] (option 7).
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
certifying completion.
No encroachment above, below or on BNSF Right-of-Way will be allowed without the presence of an Inspector
Coordinator and Flagman. You must contact BNSF's Scheduling Agent to arrange for those services. The
scheduling agent may be contacted at [e-mail] or 816-556-3624. The installation
contractor must comply with all applicable sections of this agreement, including the requirements of section 16
regarding safety requirements prior to encroaching on BNSF Right-of-Way. The installation contractor must
present and maintain a copy of the executed agreement on site for the duration of the installation activities.
Please note that a copy of the executed agreement must be available upon request at job site(s) allowing
authorization to do the work.
If you need additional information, please contact me at [phone].
Sincerely,
K~~~
Manager Permits
Enclosure
cc: wilsoncompany. utility. [e-mail]
Glenn Monti -BNSF Roadmaster [e-mail]
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, Irrespective of Voltage, Overhead or Underground)
Tracking #21W-11454
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective November 17th, 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
1.
2.
3.
4.
5.
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 Henley, County of Klamath, State of Oregon, Line Segment 0055, Mile Post 6.93 as shown
on the attached Drawing No. 82386, dated July 26, 2021, 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.
Existing Improvements. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere with the use, repair, maintenance or
replacement of such improvements.
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 and Licensee is expressly prohibited from using or allowing any telecommunication facilities or equipment
within the Premises or using or allowing the use of 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
6.
7.
License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thousand Seven Hundred
and No/100 Dollars ($3,700.00) as compensation for the use of the Premises.
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 "Services"). Licensee shall
bear the cost of the Services when deemed necessary by Licensor's representative. Flagging costs shall
-1 -Form 421; Rev. 20200605
Tracking #21W-11454
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 supeivision. 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.
8. Payment Terms. All invoices are due thirty (30) days after the date of invoice. If Licensee fails to pay any monies
due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
Street Journal in the preceding December plus two and one-half percent (2-1 /2%), or (ii) the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
9. Reseived Rights 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.
1 0. Right to Require Relocation. If at any time during the term of this License, Licensor desires the use of its rail corridor
in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Electric Supply Line, Licensee
shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make
such changes in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the Electric Supply
Line, or the construction of a new electric line to replace the Electric Supply Line. Notwithstanding the foregoing,
Licensee agrees to make all emergency changes and minor adjustments, as determined by Licensor in its sole
discretion, to the Electric Supply Line promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Supply Line.
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by Licensor's
representative, the Scheduling Agent or its designee. Licensee shall notify Licensor's Road master, 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. In the event of emergency, Licensee shall notify Licensor of Licensee's entry onto the Premises
at the telephone number above as soon as practicable and shall promptly thereafter follow up with written
notice of such entry.
-2 . Form 421 ; Rev. 20200605
Tracking #21W-11454
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while
on the Premises.
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks
to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
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. If
ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition,
Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that
Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature
thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe.
Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the
liability allocation provided by this License.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Electric Supply Line in such a
manner and of such material that the Electric Supply Line will not at any time endanger or interfere with (i)
the existence or use of present or 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. If ordered at any time to halt
construction or maintenance of the Electric Supply Line by Licensor's personnel due to non-compliance
with the Drawings and Specifications or any other hazardous condition, Licensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to
observe or inspect, or to halt work on, the Electric Supply Line, it being solely Licensee's responsibility to
ensure that the Electric Supply Line is constructed and maintained in strict accordance with the Drawings
and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the
exercise of, nor the failure by Licensor to exercise, any right granted by this Section will alter in any way
the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of
Licensor, fail to properly perform its obligations under this Section 11, Licensor may, at its option and at
Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of
its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Section 8. Licensor's failure to perform any obligations of Licensee shall
not alter the liability allocation hereunder.
-3 -Form 421; Rev. 20200605
12.
Tracking #21 W-11454
11.8 Licensee shall, at its sole cost and expense, construct and at all times maintain the Electric Supply Line in
accordance with the National Electric Safety Code.
11.9 If the operation or maintenance of the Electric Supply Line at any time causes interference, including but
not limited to physical interference from electromagnetic induction, electrostatic induction, or from stray or
other currents, with the facilities of Licensor or of any lessee or licensee of Licensor, or in any manner
interfere with the operation, maintenance, or use by Licensor of its right-of-way, tracks, structures, pole
lines, signal and communication lines, radio, or other equipment, devices, other property or appurtenances
thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and furnish such
protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be
necessary, in the judgment of Licensor's representative, to eliminate such interference. The cost of such
protective devices and their installations shall be borne solely by Licensee. If any of the interference
covered by this Section 11.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediate corrective action, Licensee, upon notice from Licensor, shall
either, at Licensor's election, cease using the Electric Supply Line for any purpose whatsoever and remove
same, or reduce the voltage or load on the Electric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, until the protective devices and/or replacement equipment
required by this Section 11.9 have been installed, put in operation, tested, and found to be satisfactory to
correct the interference.
11.10 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles
on the Premises, if any, and will at all times keep the space around such poles free of such material, and if
removal of such combustible material shall not be attended to with fifteen (15) days after having been
requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incurred.
Boring and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any portion of the Premises,
Licensee shall 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 hand-tool exploration,
Licensee shall have the right to use suitable detection equipment or other generally accepted industry
practice (e.g., consulting with the State Infrastructure 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. If
the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor
may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and
approval, in Licensor's sole discretion, a remedial plan to deal with the granular material. Once Licensor
has approved any such remedial plan in writing, Licensee shall, at Licensee's sole cost and expense, carry
out the approved plan in accordance with all terms thereof and hereof.
-4 -Form 421; Rev. 20200605
Tracking #21 W-11454
12.3 Any open hole, boring, or well constructed on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings constructed on the Premises by Licensee shall be:
12.3.1 filled in to surrounding ground level with compacted bentonite grout; or
12.3.2 otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated
materials may remain on Licensor's property for more than ten (10) days, but must be properly
disposed of by Licensee in accordance with applicable Legal Requirements.
LIABILITY AND INSURANCE
13. Liability and Indemnification.
13.1 For purposes of this License: (a) "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.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES FOR,
FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR DESCRIPTION
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM, OR RELATED TO (IN WHOLE OR
IN PART):
13.2.1 THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, 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 ENVIRONMENTAL LAWS (DEFINED BELOW). NOTHING IN
THIS LICENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES
AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
-5 -Form 421; Rev. 20200605
Tracking #21W-11454
13.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF
ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR RELATED TO (IN WHOLE
OR IN PART) ANY SUCH ASSERTION INCLUDING, BUT NOT LIMITED TO, ASSERTIONS OF
EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE
RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LIABILITY OF ANY INDEMNITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any 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.
14. Personal Property Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
15. Insurance. 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 Liability "CGL" Insurance.
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 Injury and Property Damage
■ Personal Injury and Advertising Injury
■ Fire legal liability
■ Products and completed operations
■ Contractual Liability for an "Insured Contract" consistent with the definition under the standard ISO
general liability policy form.
b. This policy will include the following endorsements or language, which shall be indicated on or attached
to the certificate of insurance:
■ The definition of "Insured Contract" will be amended to remove any exclusion or other limitation for
any work being done within 50 feet of Licensor's property;
■ Waiver of subrogation in favor of and acceptable to Licensor;
■ Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle
Brokerage, Inc.to include coverage for ongoing operations and completed operations;
■ Separation of insureds;
■ The policy shall be primary and non-contributing with respect to any insurance carried by Licensor.
-6-Form 421; Rev. 20200605
Tracking #21W-11454
c. 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.
d. No other endorsements that limit coverage with respect to Licensee's obligations under this agreement
may be included on the policy.
15.2 Business Automobile Insurance
a. The insurance will provide minimum coverage with a combined single limit of at least $1,000,000 per
accident, and include coverage for, but not limited to the following:
• Bodily injury and property damage.
• Any and all vehicles owned, used or hired.
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' Compensation and Employers' Liability Insurance
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 Insurance. The policy will name only Licensor as the Insured 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. If further 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 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 any work or services
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."
-7 -Form 421; Rev. 20200605
Tracking #21W-11454
In lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from the Effective Date,
Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to
Licensee or its contractor. The limits of coverage are the same as above. The cost is $506.00.
M Licensee elects to participate in Licensor's Blanket Policy;
□ Licensee declines to participate in Licensor's Blanket Policy.
15.5 Other Requirements:
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. In 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 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. If 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 entering the Premises or commencing the services or work, 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 shall notify BNSF in writing at least 30 days prior to any cancellation, non-renewal,
substitution or material alteration of any insurance requirement.
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 VII or better, and authorized to do business in
the state(s) in which the service is to be provided.
15.5.8 If the coverage provided by any of the insurance policies required by this agreement is purchased
on a "claims made" basis, Licensee hereby agrees to maintain coverage in force for a minimum of
three years after expiration, cancellation or termination of this agreement.
15.5.9 Licensee agrees to provide evidence to Licensor that it has the required coverage in place at least
annually or in the event of a renewal or material change of coverage.
15.5.10 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance
agent(s)/broker(s), and that Licensee has instructed them to procure the insurance coverage
required by this License.
15.5.11 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modify
the insurance requirements to reflect the then-current risk management practices in the railroad
industry and underwriting practices in the insurance industry.
15.5.12 If 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
-8 -Form 421; Rev. 20200605
Tracking #21W-11454
an additional insured. In addition, Licensee shall require that the subcontractor shall release,
defend and indemnify Licensee to the same extent and under the same terms and conditions as
Licensee is required to release, defend and indemnify Licensor under this agreement.
15.5.13 Failure to provide evidence as required by this section shall entitle, but not require, Licensor to
terminate this License immediately. Acceptance of a certificate that does not comply with this
section shall not operate as a waiver of Licensee's obligations hereunder.
15.5.14 The fact that Licensee obtains insurance (including, without limitation, self-insurance) shall not
release or diminish Licensee's liabilities or obligations including, without limitation, the liabilities and
obligations under the indemnity provisions of the License. Damages recoverable by Licensor shall
not be limited by the amount of the required insurance coverage.
15.5.15 In the event of a claim or lawsuit involving Licensor arising out of this Agreement, Licensee will
make the policy covering such claims or lawsuits available to Licensor.
15.5.16 If Licensee maintains broader coverage and/or higher limits than the minimum
requirements in this Agreement, Licensor requires and shall be entitled to the broader coverage
and/or the higher limits. Any available insurance proceeds in excess of the specified minimum
limits of insurance and coverage shall be available to Licensor.
15.5.17 These insurance provisions are intended to be a separate and distinct obligation on the part of the
Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby
regardless of whether or not indemnity provisions are determined to be enforceable in the
jurisdiction in which the work or services performed under this License is performed.
15.5.18 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC", "BNSF
Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WITH LAWS, REGULATIONS, AND ENVIRONMENTAL MATTERS
16. Compliance with Laws, Rules, and Regulations.
16.1 Licensee shall observe and comply with any and all 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.
-9 -Form 421 ; Rev. 20200605
17.
Tracking #21W-11454
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.
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 ConseNation and Recovery
Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by
Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as
"hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,
or local governmental agency or body on the Premises. Licensee agrees periodically to furnish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at [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 If Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occurred or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or
Licensor's right-of-way.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known
to Licensee which create a risk of harm to persons, property or the environment and shall take whatever
action is necessary to prevent injury to persons, property, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request
for information regarding said conditions or activities.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND 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
-10 -Form 421; Rev. 20200605
Tracking #21W-11454
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST
BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR OTHER RIGHTS GRANTED
HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LICENSEE'S CONSTRUCTION,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WILL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY
THIRD PARTY.
19. Disclaimer of Warranty for Quiet Enjoyment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES
NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS MADE.
20. Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title to, or claiming any
interest in 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 Charges. Licensee shall promptly pay and discharge any and all liens arising out of any construction,
alterations or repairs done, suffered or permitted to be done by Licensee on 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 "Improvements") or
any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements.
DEFAULT, TERMINATION, AND SURRENDER
23. Default and Termination. In addition to and not in limitation of Licensor's right to terminate for failure to provide
evidence of insurance as required pursuant to the terms of Section 15, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 If default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thirty (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Section 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination
upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this
License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability
-11 -Form 421; Rev. 20200605
Tracking #21W-11454
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 In addition to and not in limitation of Licensor's rights to terminate this License for failure to provide evidence
of insurance or occurrence of defaults as described above, this License may be terminated by either party,
at any time, by serving thirty (30) days' written notice of termination upon the other party. Such termination
shall not release either party hereto from any liability or obligation under the License, whether of indemnity
or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or
thereafter in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
24.1.1 if so directed by Licensor in writing, remove the Improvements, the Electric Supply Line and all
appurtenances thereto, or, at the sole discretion of Licensor, appropriately decommission the
Electric Supply Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premises or Licensor's other property arising from, growing
out of, or connected with Licensee's use of the Premises;
24.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date 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 terminatlon nor expiration shall release Licensee from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date
of termination, or, if later, the date when Licensee surrenders the Premises and all of the Restoration
Obligations are completed.
24.3 If Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such
termination of its tenancy, then Licensor may, at its election, either: {i) remove the Electric Supply Line and
the other Improvements or otherwise restore the Premises, and in such event Licensee shall, within thirty
(30) days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notice to
Licensee, take and hold the Electric Supply Line and the other Improvements and personal property as its
sole property, without payment or obligation to Licensee therefor, or {iii) specifically enforce Licensee's
obligation to restore and/or pursue any remedy at law or in equity against Licensee for failure to so restore.
Further, if Licensor has consented to the Electric Supply Line and the other Improvements remaining on
the Premises following termination, Licensee shall, upon request by Licensor, provide a bill of sale in a form
acceptable to Licensor conveying the Electric Supply Line and the other Improvements to Licensor for no
additional consideration.
MISCELLANEOUS
25. Successors and Assigns. All provisions contained in this License shall be binding upon, inure to the benefit of, and
be enforceable by the respective successors and assigns of Licensor and Licensee to the same extent as if each
such successor and assign was named a party to this License.
-12-Form 421; Rev. 20200605
26.
27.
Tracking #21W-11454
Assignment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of the equity
interests of Licensee following which the equity interest holders of Licensee immediately prior to such sale
own, directly or indirectly, less than 50% of the combined voting power of the outstanding voting equity
interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization,
recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
or indirectly, at least 50% of the combined voting power of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE LAND
WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purported Assignment") to another party (a "Purported Transferee"),
the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this
License, including but not limited to the obligation to comply with the provisions of Section 15 above
concerning insurance requirements. In addition to and not in limitation of the foregoing, Licensee, for itself,
its successors and assigns, shall indemnify, defend and hold harmless Licensor for all Liabilities of any
nature, kind or description of any person or entity directly or indirectly arising out of, resulting from or related
to (in whole or in part) a Purported Assignment. 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.
Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to the other
shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in
the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized
overnight delivery service, addressed to the party to be notified at the address for such party specified below, or to
such other address as the party to be notified may designate by giving the other party no less than thirty (30) days'
advance written notice of such change in address.
If to Licensor: Jones Lang LaSalle Brokerage, Inc.
4200 Buckingham Rd., Suite 110
Fort Worth, TX 76155
Attn: Permits/Licenses
-13 -Form 421; Rev. 20200605
28.
29.
30.
31.
32.
33.
34.
35.
with a copy to:
If to Licensee:
BNSF Railway Company
2650 Lou Menk Dr.
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
PacifiCorp
825 NE Multnomah Street, Suite 1700
Portland, OR 97232
Attn: Scott Mease
Tracking #21W-11454
Survival. Neither termination nor expiration will release either party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date when the Electric Supply Line and the other Improvements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
Recordation. It is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
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.
Severability. To the maximum extent possible, each provision of this License shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held
to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or
invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License.
Integration. This License is the full and complete agreement between Licensor and Licensee with respect to all
matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the
parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended
to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in
any prior written agreement between the parties.
Joint and Several Liability. If Licensee consists of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreements of such parties.
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 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
-14 -Form 421; Rev. 20200605
Tracking #21W-11454
the masculine or feminine as the context requires; references to the plural include the singular and vice
versa; and references to this License or other documents are as amended, modified or supplemented from
time to time.
36. Counterparts. This License may be executed in multiple counterparts, each of which shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature pages from
any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts
of this License may also be exchanged electronically and any electronic version of any party's signature shall be
deemed to be an original signature for all purposes.
37. Licensor's Representative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF Railway
Company.
END OF PAGE -SIGNATURE PAGE FOLLOWS
-15 -Form 421 ; Rev. 20200605
Shane KruegerVice President
This License has been duly executed by the parties hereto as of the Effective Date.
LICENSOR:
BNSF Railway Company, a Delaware corporation
By:
By:
Jones Lang LaSalle Brokerage, Inc.
4200 Buckingham Road, Suite 110
Fort Worth, TX 76155
By:
Title:
LICENSEE:
PacifiCorp, an Oregon corporation
By: Deanna Adams DigitallysignedbyDeannaAdams
Date: 2021.09.1311:25:10 -07'00'
By: Deanna Adams
Title: Director, Real Estate Management
-16-
Tracking #21W-11454
Form 421; Rev. 20200605
COORDINATE SYSTEM: OR S
SCALE: 1 IN = 100 FT
NORTHWEST DIV.
GATEWAY SUBDIV.
L.S. 0055 MP: 6.93
DATE: 7/26/2021
TYPE
ELECTRIC
HENLEY
..
EXHIBIT "A"
ATTACHED TO CONTRACT BE1WEEN
BNSF RAILWAY COMPANY
AND
PACIFICORP
TRACKING NO. 21W-11454
N
SECTION: §__
TOWNSHIP & RANGE:
40S 10E
MERIDIAN: WILLM
Source~ Esri, DlgitalGlofu~e, GeoE. ye, Ea~hstar Geographies,
CNES/Plirbus OS, USDA, USGS, AeroG~ID, IGN, and the GIS User
Commun'\y · · \
NUMBER
3
DESCRIPTION OF WIRES OVER TRACK
WIRES LOCATED AS SHOWN BOLD
VOLTAGE
12 KV
DISTANCE ABOVE
TOP OF RAIL
45.17'
CLEARS RAILWAY
COMPANY'S WIRES
COUNTY OF KLAMATH STATE OF OR JPM
DRAWING NO. 82386
II
u.: w er: a.. <(
~

ATTACHMENT B

to PacifiCorp Notice of Affiliate Transaction

(@)JL[
November 10, 2021
PacifiCorp
Attention: Mr. Scott Mease
825 NE Multnomah Street, Suite 1700
Portland, OR 97232
Dear Mr. Mease:
Jones Lang LaSalle Brokerage, Inc.
4200 Buckingham Rd., Suite 110
Fort Worth, Texas 76155
tel [phone], fax [phone]
21 W-11456
Enclosed please find one (1) fully executed Electric License Agreement. A copy of the executed agreement must
be available upon request at the job site as authorization to do the work. Please contact BNSF's Scheduling
Agent at [e-mail] or 816-556-3624 at least fifteen (15) days in advance of entry
and BEFORE YOU DIG, CALL [phone] (option 7).
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
certifying completion.
No encroachment above, below or on BNSF Right-of-Way will be allowed without the presence of an Inspector
Coordinator and Flagman. You must contact BNSF's Scheduling Agent to arrange for those services. The
scheduling agent may be contacted at [e-mail] or 816-556-3624. The installation
contractor must comply with all applicable sections of this agreement, including the requirements of section 16
regarding safety requirements prior to encroaching on BNSF Right-of-Way. The installation contractor must
present and maintain a copy of the executed agreement on site for the duration of the installation activities.
Please note that a copy of the executed agreement must be available upon request at job site(s) allowing
authorization to do the work.
If you need additional information, please contact me at [phone].
Sincerely,
~Oct:L.= Katie Robles
Manager Permits
Enclosure
cc: wilsoncompany. utility. [e-mail]
Glenn Monti -BNSF Roadmaster [e-mail]
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS OR ALONG RAILWAY PROPERTY
(Electric Light, Power Supply, Irrespective of Voltage, Overhead or Underground)
Tracking #21W-11456
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective November 17th, 2021 (the
"Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and PACIFICORP,
an Oregon corporation {"Licensee").
In consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1.
2.
3.
4.
5.
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 Henley, County of Klamath, State of Oregon, Line Segment 0055, Mile Post 7.35 as shown
on the attached Drawing No. 82388, dated July 26, 2021, 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.
Existing Improvements. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere with the use, repair, maintenance or
replacement of such improvements.
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 and Licensee is expressly prohibited from using or allowing any telecommunication facilities or equipment
within the Premises or using or allowing the use of 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
6.
7.
License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thousand Seven Hundred
and No/100 Dollars ($3,700.00) as compensation for the use of the Premises.
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 "Services"}. Licensee shall
bear the cost of the Services when deemed necessary by Licensor's representative. Flagging costs shall
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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.
8. Payment Terms. All invoices are due thirty (30) days after the date of invoice. If Licensee fails to pay any monies
due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
Street Journal in the preceding December plus two and one-half percent (2-1 /2% ), or (ii) the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Rights of Use. Licensor 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. Right to Require Relocation. If at any time during the term of this License, Licensor desires the use of its rail corridor
in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Electric Supply Line, Licensee
shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make
such changes in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the Electric Supply
Line, or the construction of a new electric line to replace the Electric Supply Line. Notwithstanding the foregoing,
Licensee agrees to make all emergency changes and minor adjustments, as determined by Licensor in its sole
discretion, to the Electric Supply Line promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Electric Supply Line.
11.1 Licensee shall 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, 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. In the event of emergency, Licensee shall notify Licensor of Licensee's entry onto the Premises
at the telephone number above as soon as practicable and shall promptly thereafter follow up with written
notice of such entry.
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11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while
on the Premises.
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks
to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
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. If
ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition,
Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that
Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature
thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe.
Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the
liability allocation provided by this License.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Electric Supply Line in such a
manner and of such material that the Electric Supply Line will not at any time endanger or interfere with (i)
the existence or use of present or 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. If ordered at any time to halt
construction or maintenance of the Electric Supply Line by Licensor's personnel due to non-compliance
with the Drawings and Specifications or any other hazardous condition, Licensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to
observe or inspect, or to halt work on, the Electric Supply Line, it being solely Licensee's responsibility to
ensure that the Electric Supply Line is constructed and maintained in strict accordance with the Drawings
and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the
exercise of, nor the failure by Licensor to exercise, any right granted by this Section will alter in any way
the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of
Licensor, fail to properly perform its obligations under this Section 11, Licensor may, at its option and at
Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of
its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Section 8. Licensor's failure to perform any obligations of Licensee shall
not alter the liability allocation hereunder.
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12.
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11.8 Licensee shall, at its sole cost and expense, construct and at all times maintain the Electric Supply Line in
accordance with the National Electric Safety Code.
11.9 If the operation or maintenance of the Electric Supply Line at any time causes interference, including but
not limited to physical interference from electromagnetic induction, electrostatic induction, or from stray or
other currents, with the facilities of Licensor or of any lessee or licensee of Licensor, or in any manner
interfere with the operation, maintenance, or use by Licensor of its right-of-way, tracks, structures, pole
lines, signal and communication lines, radio, or other equipment, devices, other property or appurtenances
thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and furnish such
protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be
necessary, in the judgment of Licensor's representative, to eliminate such interference. The cost of such
protective devices and their installations shall be borne solely by Licensee. If any of the interference
covered by this Section 11.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediate corrective action, Licensee, upon notice from Licensor, shall
either, at Licensor's election, cease using the Electric Supply Line for any purpose whatsoever and remove
same, or reduce the voltage or load on the Electric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, until the protective devices and/or replacement equipment
required by this Section 11.9 have been installed, put in operation, tested, and found to be satisfactory to
correct the interference.
11.10 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles
on the Premises, if any, and will at all times keep the space around such poles free of such material, and if
removal of such combustible material shall not be attended to with fifteen (15) days after having been
requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incurred.
Boring and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any portion of the Premises,
Licensee shall 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 hand-tool exploration,
Licensee shall have the right to use suitable detection equipment or other generally accepted industry
practice (e.g., consulting with the State Infrastructure 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. If
the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor
may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and
approval, in Licensor's sole discretion, a remedial plan to deal with the granular material. Once Licensor
has approved any such remedial plan in writing, Licensee shall, at Licensee's sole cost and expense, carry
out the approved plan in accordance with all terms thereof and hereof.
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12.3 Any open hole, boring, or well constructed on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings constructed on the Premises by Licensee shall be:
12.3.1 filled in to surrounding ground level with compacted bentonite grout; or
12.3.2 otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated
materials may remain on Licensor's property for more than ten (10) days, but must be properly
disposed of by Licensee in accordance with applicable Legal Requirements.
LIABILITY AND INSURANCE
13. Liability and Indemnification.
13.1 For purposes of this License: (a) "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.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS
CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES FOR,
FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR DESCRIPTION
DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM, OR RELATED TO (IN WHOLE OR
IN PART):
13.2.1 THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, 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, OPERA TOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, AS
AMENDED ("CERCLA") OR OTHER ENVIRONMENTAL LAWS (DEFINED BELOW). NOTHING IN
THIS LICENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND
DEFEND INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES
AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE ENVIRONMENT AL CONDITION OF THE PREMISES.
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13.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF
ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR RELATED TO (IN WHOLE
OR IN PART) ANY SUCH ASSERTION INCLUDING, BUT NOT LIMITED TO, ASSERTIONS OF
EMPLOYMENT BY AN JNDEMNITEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE
RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY
INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LIABILITY OF ANY INDEMNITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any 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.
14. Personal Property Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
15. Insurance. 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 Liability "CGL" Insurance.
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 Injury and Property Damage
■ Personal Injury and Advertising Injury
■ Fire legal liability
■ Products and completed operations ■ Contractual Liability for an "Insured Contract" consistent with the definition under the standard ISO
general liability policy form.
b. This policy will include the following endorsements or language, which shall be indicated on or attached
to the certificate of insurance: ■ The definition of"lnsured Contract" will be amended to remove any exclusion or other limitation for
any work being done within 50 feet of Licensor's property;
■ Waiver of subrogation in favor of and acceptable to Licensor;
■ Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle
Brokerage, Inc.to include coverage for ongoing operations and completed operations;
• Separation of insureds; ■ The policy shall be primary and non-contributing with respect to any insurance carried by Licensor.
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c. 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.
d. No other endorsements that limit coverage with respect to Licensee's obligations under this agreement
may be included on the policy.
15.2 Business Automobile Insurance
a. The insurance will provide minimum coverage with a combined single limit of at least $1,000,000 per
accident, and include coverage for, but not limited to the following:
■ Bodily injury and property damage.
■ Any and all vehicles owned, used or hired.
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' Compensation and Employers' Liability Insurance
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 Insurance. The policy will name only Licensor as the Insured 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. If further 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 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 any work or services
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."
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In lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from the Effective Date,
Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to
Licensee or its contractor. The limits of coverage are the same as above. The cost is $506.00.
)( Licensee elects to participate in Licensor's Blanket Policy;
□ Licensee declines to participate in Licensor's Blanket Policy.
15.5 Other Requirements:
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. In 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 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. If 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 entering the Premises or commencing the services or work, 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 shall notify BNSF in writing at least 30 days prior to any cancellation, non-renewal,
substitution or material alteration of any insurance requirement.
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 Vil or better, and authorized to do business in
the state(s) in which the service is to be provided.
15.5.8 If the coverage provided by any of the insurance policies required by this agreement is purchased
on a "claims made" basis, Licensee hereby agrees to maintain coverage in force for a minimum of
three years after expiration, cancellation or termination of this agreement.
15.5.9 Licensee agrees to provide evidence to Licensor that it has the required coverage in place at least
annually or in the event of a renewal or material change of coverage.
15.5.10 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance
agent(s)/broker(s), and that Licensee has instructed them to procure the insurance coverage
required by this License.
15.5.11 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modify
the insurance requirements to reflect the then-current risk management practices in the railroad
industry and underwriting practices in the insurance industry.
15.5.12 If 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
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an additional insured. In addition, Licensee shall require that the subcontractor shall release,
defend and indemnify Licensee to the same extent and under the same terms and conditions as
Licensee is required to release, defend and indemnify Licensor under this agreement.
15.5.13 Failure to provide evidence as required by this section shall entitle, but not require, Licensor to
terminate this License immediately. Acceptance of a certificate that does not comply with this
section shall not operate as a waiver of Licensee's obligations hereunder.
15.5.14 The fact that Licensee obtains insurance (including, without limitation, self-insurance) shall not
release or diminish Licensee's liabilities or obligations including, without limitation, the liabilities and
obligations under the indemnity provisions of the License. Damages recoverable by Licensor shall
not be limited by the amount of the required insurance coverage.
15.5.15 In the event of a claim or lawsuit involving Licensor arising out of this Agreement, Licensee will
make the policy covering such claims or lawsuits available to Licensor.
15.5.16 If Licensee maintains broader coverage and/or higher limits than the minimum
requirements in this Agreement, Licensor requires and shall be entitled to the broader coverage
and/or the higher limits. Any available insurance proceeds in excess of the specified minimum
limits of insurance and coverage shall be available to Licensor.
15.5.17 These insurance provisions are intended to be a separate and distinct obligation on the part of the
Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby
regardless of whether or not indemnity provisions are determined to be enforceable in the
jurisdiction in which the work or services performed under this License is performed.
15.5.18 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC", "BNSF
Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WITH LAWS, REGULATIONS, AND ENVIRONMENTAL MATTERS
16. Compliance with Laws, Rules, and Regulations.
16.1 Licensee shall observe and comply with any and all 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.
-9-Form 421; Rev. 20200605
Tracking #21W-11456
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does not
expire, in accordance with its ordinary terms, prior to the last day of the term of this License or, if the initial
stated term of any such Right expires in accordance with its ordinary terms on a date earlier than the last
day of the term of this License, Licensee shall, at its cost, exercise any renewal rights thereunder, or
otherwise acquire such extensions, additions and/or replacements as may be necessary, in order to cause
the stated term thereof to be continued until a date that is not earlier than the last day of the term of this
License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate or
use the Electric Supply Line in accordance with the terms and conditions of this License, this License
thereby shall automatically expire upon such expiration or termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery
Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by
Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as
"hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,
or local governmental agency or body on the Premises. Licensee agrees periodically to furnish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2.
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 If Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occurred or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or
Licensor's right-of-way.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known
to Licensee which create a risk of harm to persons, property or the environment and shall take whatever
action is necessary to prevent injury to persons, property, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request
for information regarding said conditions or activities.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LICENSE AND 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
-10 -Form 421; Rev. 20200605
19.
20.
Tracking #21W-11456
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST
BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR OTHER RIGHTS GRANTED
HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LICENSEE'S CONSTRUCTION,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WILL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY
THIRD PARTY.
Disclaimer of Warranty for Quiet Enjoyment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES
NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS MADE.
Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title to, or claiming any
interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be 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.
22.
Liens and Charges. Licensee shall promptly pay and discharge any and all liens arising out of any construction,
alterations or repairs done, suffered or permitted to be done by Licensee on 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 "Improvements") or
any Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements.
DEFAULT, TERMINATION, AND SURRENDER
23. Default and Termination. In addition to and not in limitation of Licensor's right to terminate for failure to provide
evidence of insurance as required pursuant to the terms of Section 15, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 If default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thirty (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Section 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination
upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this
License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability
• 11 • Form 421: Rev. 20200605
Tracking #21W-11456
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 In addition to and not in limitation of Licensor's rights to terminate this License for failure to provide evidence
of insurance or occurrence of defaults as described above, this License may be terminated by either party,
at any time, by serving thirty (30) days' written notice of termination upon the other party. Such termination
shall not release either party hereto from any liability or obligation under the License, whether of indemnity
or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or
thereafter in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
24.1.1 if so directed by Licensor in writing, remove the Improvements, the Electric Supply Line and all
appurtenances thereto, or, at the sole discretion of Licensor, appropriately decommission the
Electric Supply Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premises or Licensor's other property arising from, growing
out of, or connected with Licensee's use of the Premises;
24.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date 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 If Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such
termination of its tenancy, then Licensor may, at its election, either: (i) remove the Electric Supply Line and
the other Improvements or otherwise restore the Premises, and in such event Licensee shall, within 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 Improvements and personal property as its
sole property, without payment or obligation to Licensee therefor, or (iii) specifically enforce Licensee's
obligation to restore and/or pursue any remedy at law or in equity against Licensee for failure to so restore.
Further, if Licensor has consented to the Electric Supply Line and the other Improvements remaining on
the Premises following termination, Licensee shall, upon request by Licensor, provide a bill of sale in a form
acceptable to Licensor conveying the Electric Supply Line and the other Improvements to Licensor for no
additional consideration.
MISCELLANEOUS
25. Successors and Assigns. All provisions contained in this License shall be binding upon, inure to the benefit of, and
be enforceable by the respective successors and assigns of Licensor and Licensee to the same extent as if each
such successor and assign was named a party to this License.
-12-Form 421 : Rev. 20200605
Tracking #21W-11456
26. Assignment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior written consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of the equity
interests of Licensee following which the equity interest holders of Licensee immediately prior to such sale
own, directly or indirectly, less than 50% of the combined voting power of the outstanding voting equity
interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization,
recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Licensee immediately prior to such reorganization, recapitalization , merger or consolidation own, directly
or indirectly, at least 50% of the combined voting power of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE LAND
WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purported Assignment") to another party (a "Purported Transferee"),
the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this
License, including but not limited to the obligation to comply with the provisions of Section 15 above
concerning insurance requirements. In addition to and not in limitation of the foregoing, Licensee, for itself,
its successors and assigns, shall indemnify, defend and hold harmless Licensor for all Liabilities of any
nature, kind or description of any person or entity directly or indirectly arising out of, resulting from or related
to {in whole or in part) a Purported Assignment. 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 party specified below, or to
such other address as the party to be notified may designate by giving the other party no less than thirty (30) days'
advance written notice of such change in address.
If to Licensor: Jones Lang LaSalle Brokerage, Inc.
4200 Buckingham Rd., Suite 110
Fort Worth, TX 76155
Attn: Permits/Licenses
-13 -Form 421; Rev. 20200605
28.
29.
30.
31.
32.
33.
34.
35.
with a copy to:
If to Licensee:
BNSF Railway Company
2650 Lou Menk Dr.
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
PacifiCorp
825 NE Multnomah Street, Suite 1700
Portland, OR 97232
Attn: Scott Mease
Tracking #21W-11456
Survival. Neither termination nor expiration will release either party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date when the Electric Supply Line and the other Improvements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
Recordation. It is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
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 Jaw provisions.
Severability. To the maximum extent possible, each provision of this License shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held
to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or
invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License.
Integration. This License is the full and complete agreement between Licensor and Licensee with respect to all
matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the
parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended
to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in
any prior written agreement between the parties.
Joint and Several Liability. If Licensee consists of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreements of such parties.
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 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
-14-Form 421; Rev. 20200605
36.
37.
Tracking #21W-11456
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, Inc. is acting as representative for BNSF Railway
Company.
END OF PAGE -SIGNATURE PAGE FOLLOWS
-15 -Form 421; Rev. 20200605
Shane KruegerVice President
This License has been duly executed by the parties hereto as of the Effective Date.
LICENSOR:
BNSF Railway Company, a Delaware corporation
By: Jones Lang LaSalle Brokerage, Inc.
4200 Buckingham Road, Suite 110
Fort Worth, TX 76155
By: SM,;u, 6~
By:
Title:
LICENSEE:
PacifiCorp, an Oregon corporation
By: Deanna Adams Digitally signed by Deanna Adams
Date: 2021.09.13 11:27:16 -07'00'
By: Deanna Adams
Title: Director, Real Estate Management
-16-
Tracking #21W-11456
Form 421; Rev. 20200605
COORDINATE SYSTEM: OR S
SCALE: 1 IN = 100 FT
NORTHWEST DIV.
GATEWAY SUBDIV.
LS. 0055 MP: 7.35
DATE: 7/26/2021
TYPE
ELECTRIC
HENLEY
EXHIBIT "A"
ATTACHED TO CONTRACT BETWEEN
BNSF RAILWAY COMPANY
AND
PACIFICO RP
DESCRIPTION OF WIRES OVER TRACK
WIRES LOCATED AS SHOWN BOLD
NUMBER
3
VOLTAGE
12 KV
DISTANCE ABOVE
TOP OF RAIL
38.17'
COUNTY OF KLAMATH STATE OF OR
TRACKING NO. 21W-11456
N
i
SECTION:§_
OWNSHIP & RANGE:
40S 10E
MERIDIAN: WILLM
CLEARS RAILWAY
COMPANY'S WIRES
JPM
DRAWING NO. 82388
II
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