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HomeMy WebLinkAbout20220218Notice of Affiliate Transaction-BNSF Railway.pdfYPactnConp Timothy K. Clark , Senior Attorney 1407 W. North Temple, Suite 320 Salt Lake CiO, UT 84116 801-2204565 Oflice Tittt C lar k@1t ac ift co rp. com YA ELECTRONIC FILING February 18,2022 Idaho Public Utilities Commission I l33l West Chinden Boulevard Building 8 Suite 201A Boise, Idaho 837 14-1021 Attention Jan Noriyuki Commission Secretary PacifiCorp Notice of Affiliate Transaction - PacifiCorp and BNSF Railway Company Case No. PAC-E-05-8 Dear Ms. Noriyuki: Pursuant to Commitmentl 17(2), incorporated in the ldaho Public Utilities Commission Order No. 29973, issued February 13,2006, as supplemented by Order No. 29998 on March 14, 2006, in the above-referenced proceeding, approving the acquisition of PacifiCorp by MidAmerican Energy Holdings Company (now "Berkshire Hathaway Energy Company" or "BHE"), PacifiCorp hereby provides notice of an affiliated interest transaction with BNSF Railway Company ("BNSF"). PacifiCorp entered into license agreements with its affiliate BNSF to secure two "License for Electric Supply Line Across or Along Railway Property" permits (collectively, the "Licenses"). Permit #2lW-l1525 will allow PacifiCorp to construct and maintain an electric supply line containing a maximum of three (3) new conductors and five (5) existing conductors, together with its supporting or containing structures, across or along BNSF's rail corridor at or near the station of Millersburg, County of Linn, State of Oregon, Line Segment 0442,Nlile Post 93.37. Permit #zlW-l1952 will allow PacifiCorp to construct and maintain an electric supply line containing a maximum of one ( I ) new conductor and three (3) existing conductors, together with its supporting or containing structures, across or along BNSF's rail corridor at or near the station Klamath Falls, County of Klamath, State of Oregon, Line Segment 0640, Mile Post 0.26. Verified copies of the Licenses are included with this Notice as Attachment A and Attachment B. PacifiCorp is a wholly owned indirect subsidiary of BHE. BHE is a subsidiary of Berkshire Hathaway, Inc. BNSF is also a subsidiary of Berkshire Hathaway, Inc. Therefore, the ;- i r., Re 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 interest because it allows PacifiCorp to work on facilities at or near the Millersburg and Klamath Falls stations. This work is necessary to effect required project modifications in furtherance of the company's commitment to modernization and system reliability. Without the Licenses, PacifiCorp cannot meet its obligation to provide safe and reliable electric service. As the properly owner, BNSF is the only entity that can provide the Licenses to PacifiCorp. BNSF uses standardized pricing for these types of permits. PacifiCorp paid $5,040.00 for Permit #2lW-l152 and $7,410.00 for Permit #2lW-l1952. The amounts paid for each of these25-year Licenses includes the application fee, permit fee, and insurance. Please do not hesitate to contact me if you have any questions. Sincerely, -7)*'r+- K U../--d Timothy K. Clark Senior Attorney PacifiCorp Enclosures: Attachment A.pdf Attachment B.pdf 2 ATTACHMENT A PacifiCorp Notice of Affiliate Transaction to January 25,2022 PaciflCorp Attention: Mr. Imogen Taylor 825 NE Multnomah Sfteet, Suite 1700 Portlan4 OR 97232 JLL y,tu(Uy- Jones Lang LaSaIe Brckeragc, lnc. 42@ Buc&lngham Rd.. Suite 110 Fort Wor$, Texas 76165 tel +1 817-230-26fl), hx +1 817 30S8265 ztw-n525 DearMr. Taylor: Enclosed please find one (l) fully executed Electric License Agreome,nt. A copy ofthe executed agrcement must be available upon request at the job site as authorization to do the work. Please contact 8l[II''s Scheduling Agent ot wilsoncomoany.utilin.icfr,wtlsonco.com or E1G55G3621 ot leastfifuen (15) days in advane otentty and BEFORE YOA DIG, CALL $0q $3-2891 (option 7). Licensee must ensure that each of its employees, conhactors, agents or invitees entering upon the prernises completes the safety orientation program at the website www.BNSFcontractor.com prior to entering upon the premises. The certification is good for one yeax, and each person entering the premises must possess the card certiSing 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 Age,nt to arange for those services. The scheduling agent may be contacted at wilsoncomlanr'.utilitt'.ictu,,wilsonco.com or 816-556-3624. Theinstallation contractor must comply with all applicable sections of this agroement, including the requirements of section 16 regarding safety requireme,nts prior to encroaching on BNSF Right-of-Way. The installation contactor 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 (817) 230-2631 Sincerely, Katie Robles Manager Permits Enclosure cc w i lso nco ml rua . uti I i t t . ic:t! wilso nco. cont Dennis Hannahs - Roadmaster - Dennis.Hannahs@gwrr.com Nensi Patel - BNSF Engineer - Nensi.Patel@bnsf.com 2. 3. Tracking #21W-'11525 LICENSE FOR ELECTRIC SUPPLY LINE ACROSS OR ALONG RAILWAY PROPERW (Electric Light, Power Supply, lrrespective of Voltage, Overhead or Underground) THIS LICENSE FOR ELECTRIC SUPPLY LINE ("Llcense") is made to be effective February 3d, 2022 (lhe 'Effectlve Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and PAGIFICORP, an Oregon corporation ("Licensee"). ln consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL Grant of License. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of third 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 accordanc€ with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings and Specifications"), an electric supply line conlaining a maximum of three (3) new conductors and five (5) existing conductors, together with its supporting or containing structures (collectively, the "Electric Supply Line"), aooss or along Licensor's rail conidor at or near the statlon of Millersburg, County of Linn, State of Oregon, Line Segment 0442, Mile Post 93.37 as shown on the attached Drawing No. 82475, dated November 17, 2021, aftached hereto as Exhibit "A" and incorporated herein by reference (the "Premises"). Term. This License shall commenoe on the Effective Date and shall continue for a period of twenty-five (25) years, subject to prior termination as hereinafter described. Existino lmorovements. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, licensees, easement beneficiaries or lien holders, if any, or interfere with the use, repair, maintenance or replacement of such improvements. Use of the Premises. Licensee shall use the Premises solely for construction, maintenance, and use of the Electric Supply Line in accordance with the Drawings and Specifications, Licensee shall not use the Premises for any other purpose and Licensee is expressly prohibited from using or allowing any telecommunication facilities or equipmant within the Premises or using or allowing lhe 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 License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thousand Seven Hundred Thirty Four and No/l00 Dollars ($3,734.00) as compensation for the use of the Premises. 7. Costs and Exoenses 7.1 For the purpose of this License, "cost" or "@sts" and "expense" or "expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used. 7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Sectlon 8 below) for all costs and expenses incurred by Licensor in connectbn with Licensee's use of lhe Premises or the presence, construction and maintenance of the Electric Supply Line, including but not limited to the furnishing of Licensor's flaggers and any vehicle rental costs incuned, inspection coordination, safety, mobilization and/or other observation services described in this License (collectively, the "Servlce6"). Licensee shall bear the cost of the Services when deemed necessary by Licensor's representative. Flagging costs shall 4. 5. 6 Form 421: Rev. 20200605 DocuSign Envelope lD: 4ACBB2F0-D38D-45EB-8E0F-EA851097F493 Tracking #21W-11525 include, but not be limited to, the following: pay for at least an eight (8) hour basic day with time and one- half or double time for overtime, rest days and holidays (as applicable); vacation allowance; paid holidays (as applicable); railway and unemployment insurance; public liability and property damage insurance; health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase flagging rates. Flagging rates in effect at the time of performance by the flaggers will be used to calculate the flagging costs pursuant to this Section 7. 7.3 Licensor, at its sole discretion, may elect to designate a third party (the "Scheduling Agent"), to perform and/or arrange for the performance of the Services. Pavment Terms. All invoices are due thirly (30) days after the date of invoice. lf Licensee fails lo 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 percenl(2-112%), or (ii) the maximum rate permitted by law. LICENSOR'S RESERVED RIGHTS Reserved Riohts of Use. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: 9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or communication pipe/lines/cables and appurtenances (other than the Electric Supply Line) and other facilities or structures of like character upon, over, under or across the Premises existing as of the Effective Date; to construct, maintain, renew, use, operate, change, modi$ 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 ils sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 4 above. 10 Rioht to Reouire Relocation. lf at any time during the term of this License, Licensor desires the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Electric Supply Line, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the Eleclric 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, es determined by Licensor in its sole discretion, to the Electric Supply Line promptly upon Licenso/s request. LICENSEE'S OPERATIONS 11 . Construction and Maintenance of the Electric Suoplv Line. 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, Dennis Hannahs at Dhannahs@gwn.com, telephone 503-508-7440, at least ten (10) business days prior to installation of the Electric Supply Line and prior to entering the Premises for any subsequent maintenance thereon. ln the event of emergency, Licensee shall notify Licensor of Licensee's entry onto the Premises at the tetephone number above as soon as practicable and shall promptly thereafter follow up with written notice of such entry. 8. I 9.2 2 Fo'tr:. 421; Rev. 20200605 DocuSign En\relope lD:,lACB82FGD38t)-45E8-8E0F-EA851097F493 Tracking #21W-11525 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 he centerline of any railroad track on the Premises unless Licensee has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all activities on and about the Premises, including without limitation all construction and maintenance of the Electric Supply Line, in such a manner and of such materials as not at any time to endanger or interfere with (i) the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. lf ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the liability allocation provided by this License, 11.6 Licensee shall, at its sole cost and expense, construct and maintain the Electric Supply Line in such a manner and of such materialthat the Electric Supply Line will not at any time endanger or interfere with (i) the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. The construction of th€ 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 othenrvise 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, sunender 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 andlor 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. !f ordered al 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 wtth the Drawings and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise of, nor the failure by Licensor to exercise, any right granted by this Section will alter in any way the liability allocation provided by this License. lf at any time Licensee shall, in the sole judgment of Licensor, failto properly perform its obligations underthis Section 11, Licensor may, at its option and at Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such work, pursuant to the terms of Section 8. Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder. 3 Fom 421: Rev. 20200605 DocuSign Envelope lD: 4ACBB2F0-D38D-45E8-8E0F-EA851 097F493 Tracking #21W-11525 11.8 Licensee shall, at its sole cost and expense, construct and at all times maintain the Electric Supply Line in accordance with the National Electric Safety Code. 11.9 lf the operation or maintenance of the Electric Supply Line at any time causes inlerference, including but not limited to physical interference from electromagnetic induction, electrostatic induction, or from stray or other cunents, with the facilities of Licensor or of any lessee or licensee of Licensor, or in any manner interfere with the operation, maintenance, or use by Licensor of its right-of-way, tracks, structures, pole lines, signal and communication lines, radio, or other equipment, devices, other property or appurtenances thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and fumish such protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be necessary, in the judgment of Licensor's repres€ntative, to eliminate such interference. The cost of such protective devices and their installations shall be bome solely by Licensee. lf any of the interference covered by this Sectlon 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 eilher, 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 Sectlon 11 .9 have been installed, put in operation, tested, and found to be satisfactory to conect the interference. 11.10 Licensee shall, at its sole cost and expense, remove all combustible materialfrom around wooden poles on the Premises, if any, and will at all times keep the space around such poles free of such material, and if removal of such combustible material shall not be attended to with fifleen (15) days after having been requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby agrees to reimburse Licensor for the expense so incurred. 12. Borino and Excavation, 12.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any portion of the Premises, Licensee shall contact the applicable State's call-before-you-dig utility location service to have 3rd parties mark the location of utilities. Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, orovided, !1ry[, that in lieu of the foregoing hand-tool exploration, Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.9., consultlng with the State lnfrastructure Corporation) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavaling 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, cunently at 1-800-533-2891 (option 1, then option 7), at least ten (10) business days prior to installation of the Electric Supply Line. Upon receiving Licensee's timely request, Licensor will provide Licensee with the information Licensor has in its possession regarding any existing underground lines, utilities, and pipelines at or near the vicinig of the proposed Electric Supply Line and, if applicable, identify the location of such lines on the Premises pursuant lo 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. !f 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 fumlsh 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 Fotn421; Rev 20200605 DocnSign Envelope lD: 4ACBB2F0-D38D-{5E&8E0F-EA851097F493 Tracking f21W-11525 12.3 Any open hole, boring, orwell constructed on the Premises by Licensee shall be safely covered and secured al 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 sunounding ground level with compacted bentonite grout; or 12.3.2 otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on Licensor's poperty for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. LIABILITYAND INSURANCE 13. Liabilitv and lndemniftcation. 13.1 For purposes of this License: (a) "lndemnltees" means Licensor and Licensor's affiliated companies, partners, successors, assigns, legal representatives, officers, directors, shareholders, employees, and agents; (b) "Liabllltiesn means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable attomeys' fees, costs of investigation, removal and remediation, and governmental oversight costs) environmental or otherwise; and (c) "Licensee Parliea" 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. '|.3.2 TO THE FULLEST EXTENT PERMITTED BY I.AW, LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES FOR, FROM, AND AGATNST ANY AND ALL LIAB|LIT|ES OF ANY NATURE, K!ND, OR DESCRIPTTON DTRECTLY OR TNDTRECTLY AR|SING OUT OF, RESULTTNG FROM, OR RELATED TO 0N WHOLE OR rN PART): 13.2.1 THIS UCENSE, INCLUDING, WTHOUT 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 CONDITTON AND STATUS OF THE PREMISES CAUSED BY OR GoNTRIBUTED TO BY LICENSEE, OR 13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARW. 13.3 rO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, AND WILL INDEi'NIFY, DEFEND, AND HOLD THE INDETIIN]TEES HARMLESS FROM ANY AND ALL CLAIMS THAT BY VIRTUE OF EiITERING INTO THIS LICENSE, LICENSOR !S A GENERATOR, owNER, OPERATOR, ARRAT{GER, OR TRANSPORTER FOR THE PURPOSES OF THE COiIPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, AS AMENDED ("CERGLA") OR OTHER ENVIRONMENTAL I-AWS (DEFTNED BELOW). NOTHING lN THIS LIGENSE IS iIIEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S COMiION CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. !F ANY AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES, LICENSEE AGREES TO INDEiINIFY, HOLD HARTI'LESS, AND DEFEND INDEMNTTEES 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 Docusign Envelope lD: 4ACBB2F0-D38D.45EB8E0F-EA851097F.{93 Tracking f21W-11525 13.4 IF ANY Ei'PLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LIGENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM AND AGATNST ANY LIABTLIT|ES AR|SING OUT OF OR RE1ATED TO (rN WHOLE oR rN PART) ANY SUCH ASSERTTON INCLUDTNG, BUT NOT LtMrrED TO, ASSERTTONS OF EMPLOYMENT BY AN INDEilNITEE RELATED TO THE FOLLOWNG OR ANY PROCEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS' LIABiLITY ACT, THE SAFEW APPLIANCE ACT, THE LOCOMOTIVE INSPEGTION ACT, THE OCCUPATIONAL SAFEW AND HEALTH ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIiIIILAR STATE OR FEDERAL STATUTE. 13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILMES ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE ORWLLFUL MISCONDUCT OF ANY INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIAts!L!NES, 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 attomeys'fees, investigators'fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. Personal Prooertv Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WLL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WLL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE !N WHOLE OR IN PART TO THE NEGUGENCE OF ANY INDEMNITEE. 15.Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of this License he following insurance coverage: 15.1 Commercial General Liabilitv "CGL' lnsurance. a. The policy will provide a minimum of $2,000,000 per occurrence and an aggregate limit of at least $4,000,000 but in no event will the coverage be in an amount less than the amount otherwise canied by Licensee. Coverage must be purchased on a post 2004 ISO occurren@ form or equivalent and include coverage for, but not limited to, the following:. Bodily lnjury and Property Damage ' Personal lnjury and Advertising lnjury. Fire legalliability ' Products and completed operalions. Contractual Liability for an "lnsured Contract" consistent with the definition under the etandard ISO general liability policy form. b. This policy will include the following endorsements or language, which shall be indicated on orattached 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 Licenso/s property;. Waiver of subrogation in favor of and acceptable to Licensori, Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle Brokerage, lnc.to include coverage for ongoing operatlons and completed operations;. Separation of insureds;r The policy shall be primary and non-contributing with respecl to any insurance canied by Licensor. 14. 6 Form 421; Rev. 20200605 DocuSign Envelope lD: 4ACBB2F&D38R'45E&8E0F-EA85'1097F493 Tracking #21W-11525 c. The parties agree that the workers'compensation and employers' Iiability 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 wilh respect to Licensee's obligations under this agreement may be included on the policy. 15.2 BusinessAutomobile lnsurance a. The insurance will provide minimum coverage with a combined single limit of at least $1,000,000 per accident, and include coverage for, but not limited to the following:, Bodily injury and property damage.. Any and all vehicles owned, used or hired. 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;r Additional insured endorsement in favor of and acceptable to Licensor;. Separation of insureds;, The policy shall be primary and non-contributing with respect to any insurance canied by Licensor. 15.3 Workers'Comoensationand Emolovers' Liabilitv lnsurance a. The policy will provide coverage of all employees performing any part of the work or services including coverage for, but not limited to:. Licensee's statutory liability under the workers'compensation laws of the state(s) in which the work or services are to be performed. The policy will cover all of Licensee's employees, regardless of wtrether such coverage is optional under the law of that state(s).. Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. b. The policy will include contain the following endorsements or language, which shall be indicated on or attached to the certificate of insurance:. Waiver of subrogation in favor of and acceptable to Licensor. '15.4 Railroad Protective Liabilitv lnsurance. The policy will name only Licensor as the lnsured and wall provide coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The ooverage 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 COIITPLETED WTHIN ONE (f ) YEAR OF THE EFFECTIVE DATE. lf turther maintenance of the Electric Supply Line is needed at a later date, an additional Railroad Protective Liability lnsurance Policy shall be required. The policy will be issued on a standard ISO form CG 00 35 12 M and include the following:r 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 conlrol (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 Form421;Rev 20200605 DocuSign Envelope lD: 4ACBB2F0-D380-45E8-8E0F-EA851097F493 Tracking #21W-11525 ln lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from the Effective Date, Licensee may participate ln Licensor's Blanket Railroad Protective Liability lnsurance Policy available to Licensee or its contractor, The limits of coverage are the same as above, The cost is $506.00. I Licensee elects to participate in Licensor's Blanket Policy; tr Licensee declines to participate in Licensor's Blanket Policy. 15.5 OtherReouirements: 15.5.1 Where allowable by law, no exclusion for punitive damages may be included in any policy. 15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. ln addition, Licensee's insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Licensor for all claims and suits. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of Licensee's owned or leased property or property under Licensee's care, custody, or control. 15.5.3 Allocated Loss Expense, including but not limited to defense costs and expenses, will be in addition to all policy limits for coverage under the insurance requirements. 15.5.4 Licensee is not allowed to self-insure without the prior written consent of Licensor. lf Licensor allows Licensee to self-insure, Licensee shall directly cover any self-insured retention or other financial responsibility for claims in lieu of insurance. Any and all Licensor liabilities that would othenruise 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 responsibilig 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 wriften by a reputable insurance company acceptable to Licensor or with a cunent Best's Guide Rating of A- and Class Vll or better, and authorized to do business in the state(s) in which the service is to be provided. 15.5.8 lf the coverege provided by any of the insurance policies required by this agreement is purchased on a "claims maden basis, Licensee hereby agrees to maintain coverage in force for a minimum of three years after expiralion, cancellation or termination of this agreement. 15.5.9 Licensee agrees to provido 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. 15.5.10Licensee represents that this License has been thoroughly reviewed by Licensee's insurance agent(s/broke(s), and that Licensee has instructed them to procure the insurance coverage required by this License. 1 5.5.'l 1 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modifu the insurance requirements to reflect the then-cunent risk management practices in the railroad industry and undenrriting practices in the insurance industry. 15.5.121f Licensee will subcontract any portion of the operation, Licensee shall require that the subcontractor provide and maintain insurance coverage(s) as set forth herein, naming Licensor as 8 Form 421; Rev. 20200605 DocuSign Enrrclope lD: 4ACBB2FGD38D-{5E&8E0F-EA851097F.f 93 Tracking #21W-11525 an additional insured. ln addition, Licensee shall require that the subcontractor shall release, defend and indemniry 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 shallentitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with ttris section shall not operate as a waiver of Licensee's obligations hereunder. 15.5.14The 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 he indemnity provisions of the License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. 1 5,5.1 5 ln the event of a claim or lawsuit involving Licensor arising out of this Agreement, Licensee will make the policy covering such claims or lawsuits available to Licensor. 15,5.16 lf Licensee maintains broader coverage and/or higher limits than the minimum requirements in this Agreement, Licensor requires and shall be entitled to the broader coverage andlor the higher limits. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Licensor. 1 5.5.1 7 These insurance provisions are intended to be a separate and distinct obligation on the part of the Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby regardless of whether or not indemnity provisions are determined to be enforceable in lhe jurisdiction in which the work or services performed under this License is performed. 15.5.18 For purposes of this Sectlon 15, Licensor shall mean "Burlington Northem Santa Fe, LLC', 'BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each, COMPLIANCE wlTH LAWS. REGULANONS. AND ENVIRONMENTAL MATTERS 16. Comoliance with Laws, Rules. and Reoulations. 16.1 Licensee shall observe and comply with any and all applicable federal, state, local and tribal laws, statutes, regulations, ordinances, orders, covenants, resfiictions, or decisions of any court of competent jurisdiction ("Lega! Requirements") relating to the construction, maintenance, and use of the Electric Supply Line and the use of the Premises. 16.2 Prior to entering the Premises, Licensee shall and shall cause its contracto(s) to comply with all of Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees, contractors, agents or invitees entering upon the Premises completes the safety orientation program at the Website "www.BNSFcontractor.com" (the "Safety 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 certifuing 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 olher 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 fibal 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 Form421; Rev 20200605 DocuSign Envelope lD: 4ACBB2FGD38D-45E8-8E0F-EA851 097F493 Tracking #21W-1'1525 16.4 Licensee shall either require that lhe 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 nEnvlronmental 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 wasten and 'hazardous substiances" may now or in the future be defined by any federal, state, or local governmenlal agency or body on the Premises. Licensee agrees periodically to fumish Licensor with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2. 17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (800) 832-5452 of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation of Environmental Laws, or (iii) inspection or inquiry by governmental authorities charged with enforcing Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on, from, or affecting the Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investlgate, remediate, respond to or otherwise cure such release or violation. '17.4 lf Licensor has notice from Licensee or otheruise of a release or violation of Environmental Laws arising in any way with respect to the Electric Supply Line which occuned or may occur during the term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or othenvise cure such release or violation affecting the Premises or Licensor's rig ht-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 trake whatever action is necessary to prevent injury to persons, property, or the environment arising oul of such conditions or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee ol 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 WARRANNES '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 DocuSign Envelope lD: 4ACBB2FGD38D-45EB-8E0F-EA851097F493 Tracking #21W-11525 WARRANTIES, EXPRESS OR IMPLIED, WTH RESPECTTO THE PREMISES ORWHICH TUIAY EXIST BY OPERATION OF LAW OR IN EOUITY, INCLUDING, WTHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 18.2 LICENSOR MAKES NO WARRANU REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS oR rMpLtED, CONCERNING (A) THE SGOPE OF THE LTCENSE OR OTHER RTGHTS GRANTED HEREUNDER TO LTCENSEE OR (B) WHETHER OR NOT LTCENSEE',S CONSTRUCnON, MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WLL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES, INCLUDING, WTHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY THIRD PARTY. 19.Disclaimer of Warrantv for Quiel Eniovment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF OUIET ENJOYMENT IS MADE. Eviction at Risk of Licensee. ln case of the eviction of Licensee by anyone owning, claiming title to, or claiming any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable (i) to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recuning charge paid in advance, or (ii) for any damages or costs Licensee sustains in connection with the eviction. LIENS AND TAXES Liens and Charoes. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on the Premises. Licensor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by law to prevent the attachment of any such liens to the Premises; provided, however, that failure of Licensor to take any such action shall nol relieve Licensee of any obligation or liability under this Secdon 21 or any other Section of this License. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, Taxes") levled or assessed by any governmental or quasi-govemmental body upon the Electric Supply Line or any other improvements constructed or installed on the Premises by or for Licensee (colleclively, the "lmprovements") or any Taxes levied or assessed against Licensor or the Premises that are attributable to the lmprovements. DEFAULT. TERMNANON. AND SURRENDER 23. Default and -lermination. ln addition to and not in limitation of Licensor's right to terminate for failure to provide evidence of insurance as required pursuant to the terms of Section 15, the following events are also deemed to be events of default pursuant to which Licensor has the right to terminate as set forth below: 23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in his License and Licensee fails to cure said default within thirty (30) days afler 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 lerminate this License immediately if Licensee fails to provide evidence of insurance as required in Sectlon 15. 23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of this License, Licensor may, at its option, terminate this License by seMng 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 20. 21 22 -11 -Form 421; Rev. 20200605 DocuSiign Envelope lD: 4ACBB2F0-D38D45EB-8E0F-EA851097F493 Tracking #21W-11525 to enforce any Section of this License. The remedies set forth in this Section 23 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. 23.4 ln addition to and not in limitation of Licensor's rights to terminate this License for failure to provide evidence of insurance or occurence 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 thereafler in case by the terms of the License it is provided that anything shall or may be done after termination hereof. 24. Surrender of the Premises. 24J On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and expense: 24.1.1 if so directed by Licensor in writing, remove the lmprovements, the Electric Supply Line and all appurtenances thereto, or, at the sole discretion of Licensor, appropriately decommission the Electric Supply Line with a method satisfactory to Licensor; 24J.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 lhe Premises to Licensor or if Licensee fails to complete its obligations under Sectlon 24.1 above (the "Restoratlon Obligatlons"), Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are sunendered and the Restoration Obligations are completed. Neither termination nor expiration shall release Licensee from any liability or obligation under this License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date wfien Licensee sunenders the Premises and all of the Restoration Obligations are completed. 24.3 lf Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such termination of its tenancy, then Licensor may, at its election, either: (i) remove the Electric Supply Line and the other lmprovements or othenrise restore the Premises, and in such event Licensee shall, within thirty (30) days after receipt of bill therefor, reimburse Licensor for cost incuned, (ii) upon written notice to Licensee, take and hold the Electric Supply Line and the other lmprovements and personal property as its sole property, without payment or obligation to Licensee therefor, or (iii) specifically enforce Licensee's obligation to restore and/or pursue any remedy at law or in equity against Licensee for failure to so restore. Furlher, if Licensor has consented to the Electric Supply Line and the other lmprovements remaining on the Premises following termination, Licensee shall, upon request by Licensor, provide a bill of sale in a form acceptable to Licensor conveying the Electric Supply Line and the other lmprovements to Licensor for no additional consideration. MISCELI.ANEOUS 25. Successors and Assions. All provisions contained in this License shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and assigns of Licensor and Licensee to the same extent as if each such successor and assign was named a party to lhis License. -'t2 -Form 421; Rev. 20200605 DocuSign Erwelope lD: 4ACBB2F0-D38D.45E8-8E0F-EA851 097F493 Tracking f21W-11525 26. Assionment. 26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interest herein (either voluntarily or by operation of law, merger, or othenrvise) without the prior writlen consent of Licensor, which consenl may not be unreasonably withheld or delayed by Licensor. Any attempted assignment by Licensee in violation of this Sectlon 26 shall be a breach of this License and, in addition, shall be voidable by Licensor in its sole and absolute discretion. 26.2 For purposes of this Sectlon 26, the word "assign" shall include without limitation (a) any sale of the equity interests of Licensee following wtrich the equi$ interest holders of Ucensee immediately prior to such sale own, directly or indirectly, less than 50o/o ol the combined voting power of the outstanding voting equity interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization, recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any reorganization, recapitalization, merger or consolidation following which the equity interest holders of Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly or indirectly, at least 50o/o 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 conlravention of the provisions of this License (a 'Purported Assignment") to another party (a "Purported Transferee'), the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this License, including but not limited to the obligation to comply with the provisions of Sectlon 15 above concerning insurance requirements. ln addition to and not in limitation of the foregoing, Licensee, for itself, its successors and assigns, shall indemnify, defend and hold harmless Licensor 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 iB rights and obligations under this License, and upon any such transfer or assignment, Licensor shall be released ftom any further obligations hereunder and Licensee agrees to look solely to the successor in interest of Licensor for the performance of such obligations. Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to the other shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in the United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognized ovemight delivery service, addressed to the party to be notifted at the address for such party specified below, or to such other address as the party to be notified may designate by giving the other party no less than thirty (30) days' advance written notice of such change in address. lf to Licensor:Jones Lang LaSalle Brokerage, lnc, 4200 Buckingham Rd., Suite 110 Fort Worth, TX 76155 Attn: Permits/Licenses 27 13 Fom 421; Rev. 202@605 DocuSign Envelope lD: 4ACBB2F0-D38D-45E8-8E0F-EA851097F493 Tracking #21W-11525 with a copy to:BNSF Railway tumpany 2650 Lou Menk Dr. Fort Worth, TX 7613't Attn: Senior Manager Real Estate lf to Licensee:PacifiCorp 825 NE Multnomah Street, Suite 1700 Portland, ORS7232Attn: lmogen Taylor 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 dale of termination or expiration, or, if later, the date when the Electric Supply Line and the other lmprovements are removed and the Restoration Obligations are completed in accordance with the terms hereof. Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public record. Aoolicable Law. All questions concerning the interpretation or application of provisions of this License shall be decided according to the substantive laws of the State of Texas without regard to conflicts of law provisions. Severabilitv. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. lntegration. This License is the full and complete agreement between Licensor and Licensee with respect to all mafters 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 Liabilitu. lf Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. Waiver. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. lnteroretation. 35,1 This License shall be interpreled 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 his 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 nol intended to be a part or to affect the meaning or inlerpretation hereof, The exhibit or exhibits referred to herein shall be construed with and as an integral part of this License to the same extent as if they were set forth verbatim herein. 35.2 As used herein, "include", "includes" and "including" are deemed to be followed by 'without limitation" whether or not they are in fact followed by such words or words of like import; 'writing", "written" and comparable terms refer to printing, typing, lithography and other means of reproducing words in a visible form; references to any person are also to that person's successors and permitted assigns; "hereof, "herein", "hereunder" and comparable terms refer to the entirety hereof and not to any particular article, section, or other subdivision hereof or attachment hereto; references to any gender include references to the masculine or feminine as the context requires; references to the plural include the singular and vice 28. 29. 30. 31. 33. 34, 35. 32. - 14-Form 421: Rev.20200605 DocuSlgn Enwlope lD: 4ACBB2FGD38D.+5EB-BE0F-EA851097F493 Tracking #21W-11525 versa; and referenoes to this Ucqtse or other documents are as amended, modified or supplemented ftom time totime. 36.Counteroarts. This License may be executed in multiple counterparts, each of which shall, for all purposes, be deemed an original but whlch together shall constitute one and the same instrument, and the signature pages from any counterpart may be appended to any other counterpart to assernble 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 odginal signature for all purposes. 37 Licenso/s Reoresentative. Jones Lang LaSalle Brokerage, lnc. is acting as representiative for BNSF Railway Company. END OF PAGE-SIGNATURE PAGE FOLTOWS .15-Form 421; Rev. 2020060'5 Dsq.€En Env# lD; 4Aets83RlDBEO-.5E8{E0F.EAeEt00rF{Ol Ttde Uceme has been dtdy exea&d by $e partieo hereto ag of thc Effochrc t eto. eEEuSgBj Btl6F R.lltry @mprny, a Delauare ooporaUon Joneo Lang Lasafis Brd<emge, lnc. 4200 Brtldngha'n Roal, Sulte 110 FortWodr, D( 76155 ilaru..l<izrzd* By, Tifle: Shane xruE(ei Mce President TEESEE FaclfiCorp, an &egpn erponaton By:Deanna Adam$ ffi*ffififfi Ey: DeennaAdans Ttfle: g;6s5y, Rml Estab lrhnaganrent By: By: Trace[U#tw-l1@ -16-Fqrm 't21; &v.2@00005 COORDINATE SYSTEM: oR l! EXHIBIT IIAII ATTrcHED TO CONTRACT BETWEEN BNSF RAILWAY COMPANY AND N PACIFICORP 1lN=100FT SECTION:DIV TOWNSHIP & RANGESUBDIV .S. 0442 MP: 93.37 MERIDIAN:11t17t2021 cp .GU.YTwlBE I buv.wne oaser Rd ,Vg M% e3:32 ' 4.88 1.520 ; -1 8.07 921 6 q NOTE ALL TRACKAGE AND IMPROVEMENTS IN TRACK CORRIDOR ARE LEASED BY BF.20037472TO PORTI.AND E WESTERN RAILROAO (PNWR)Source:pfrlca, CNES/Airbus DS, USDA,Community D(ISTING WOOD POLES TO BE REPLACED WTH 55'POLES UNKNOWN AGREEMENT 294'TOTAL LENGTH ON FYWo DESCRIPTION OF WRES OVER TRACK WRES LOCATEDAS SHOWN BOLD TYPE ELECTRIC NEUTRAL NUMBER 3 NEW/,1 EXISTING 1 VOLTAGE 1 lsKV l 20.8KV/12KV DISTANCEABOVE TOP OF RAIL 54.6' 34' CIEARS RAILWAY COMPANY'S WIRES MILLERSBURG COUNW OF LINN JNCSTATE OF OR TRACKING NO. 21W-1,I525 (ot(ol(olNI€l lJ.uJt IL = REVISION 2 DRAWNG NO.82475 ATTACHMENT B PacifiCorp Notice of Afliliate Transaction to Jones Lang LaSaie Bmkerage, lnc. 4200 Budfigham Rd., Sulte 110 FoiWbrfi, Toes 76155 tel +1 817-230-26(n, hx +l 817 30G8265 January 25,2022 PacifiCorp Attention: Mr. Scott Mease 825 NE Multnomah Sbeet, Suite 1700 Portland, OR 97232 ztw-11952 Dear Mr. Mease: Enclosed please find one (t) fully executd Electric License Agreement. A copy of the executed agr€€mirent must be available npon request at the job site as authorization to do the wo*. Please contet EIYSF's Scluduling Agenl at wilsoncomoanuutilitv.idti'wilsonco.com or tI6-556-3621 at lcostfifuen (15) fuW in advance otentqt and BEFORE vOU DIG, CALL (E00) 533-2891 (optbn 7). Licensee must ensuE that each of its anployeeg contactors, agents or invitees e,ntering upon the pre,mises complae the safay orientation progftm at the wcbsite www.BNSFcontractor.com pnor to entering upon the premisas. The certification is good for onc year, and each person eirtering the prcmises must possess the card certiffing coryletion No encroachment above, belorv or on BNSF Right-of-Way will be allowed without the presence of an Inspector Coordinator and Flagmau You must contact BNSF's Scheduling Agant to arrange for those ssvices. The scheduling agent may be contacted at wilsoncomnanv.utiliry.ickirwilsonco.com or 816-55G3624. The inSallation contactor must comply with all applicable sections of this agreerreirt including the requirc,ments of section 16 regarding safefy roquircm€nts prior to encroachi4g on BNSF Right-of-Way. The installation contactor must prcsent and maintain a copy of the executed agree,meirt on site for the duration of the installation activities. Please note that a cqpy of the executed agree,ment must be available upon request at job site(s) allowing authorization to do the work. If you need additional informatioq please contact me at (817) 23U2631 Sincerely JLL [*f,; KatieRobles Manager Permits Enclosure wi ls onco m?an v.u ti lit v. iua' w i b o nco. co m Glenn Monti - BNSF Roadmaster- Glcnn.Monti@bnsf.com Nensi Patel - BNSF Engineer - Nensi.Patel@bnsf.com cc: I Tracking #21W-1195? LICENSE FOR ELECTRIC SUPPLY LINE ACROSS OR ALONG RAILWAY PROPERW (Electric Light, Power Supply, lrrespective of Voltage, Overhead or Underground) THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective February 3d, 2022 (lhe "Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ('Licansor") and PACIFIGORP, an Oregon corporation ("Licensee'). ln consideration of the mutual covenants contained herein, the parties agree to the following: GENERAL Grant of License. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, and estates of third parties, including, without limitation, any leases, use rights, easements, liens, or olher 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 one (1) new conductor and three (3) existing conductors, together with its supporting or containing structures (collectively, the "Electric Supply Line"), across or along Licensor's rail corridor at or near the station of Klamath Falls, County of Klamath, Slate of Oregon, Line Segment 0640, Mile Post 0.26 as shown on the attached Drawing No. 82843, dated October 5, 2021, attached hereto as Exhlbit "A" and incorporated herein by reference (the "Premlses"). Term. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years, subject to prior lermination as hereinafter described. Existino lmorovements. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees, licensees, easement beneficiaries or lien holders, if any, or interfere with the use, repair, maintenance or replacement of such improvements. Use of the Premises. Licensee shall use the Premises solely for construclion, maintenance, and use of the Electric Supply Line in accordance with the Drawings and Specilications. 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 slructures adjacent to the Premises wilhout Licensor's prior written consent. COMPENSATION License Fee, Licensee shall pay Licensor, prior to the Efiective Date, the sum of Six Thousand Seventy Six and No/lO0 Dollars ($6,076.00) as compensation for the use of the Premises, 7. Costs and Exoenses. 7.1 For the purpose of this License, "cost" or "costsn and ''expensen 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. 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 andlor 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 2 3. 4 5 6. -1- 7,2 Fonn 421: Rev.20200605 8. 9. Tracking #21W-11952 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. Negoliations 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 parg (the "Scheduling Agent'), to perform and/or arange for the performance of the Services. Pavment Terms. All invoices are due thirty (30) days after the date of invoice. lf Licensee fails to pay any monies due to Licensor within thirty (30) 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 Journalin the preceding Decemberplus two and one-half percent (2-1l2Yo), or(ii)the maximum rate permitted by law. LTCENSOR'S RESERVED RIGHTS Reserved Riqhts of Use. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties who may obtain written permission or authority from Licensor: 9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or communication pipe/lines/cables and appurtenances (other than the Electric Supply Line) and other facilities or structures of like character upon, over, under or across the Premises existing as of the Effective Date; to consfuct, maintain, renew, use, operate, change, modiff and relocate any tracks or additional facilities, structures and related appurtenances upon, over, under or across the Premises; or to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided Licensor uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Sec{lon 4 above. Riqht to Require Relocation. lf at any time during the term of this License, Licensor desires the use of its rail corridor in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Electric Supply Line, Licensee shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make such changes in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference with the proposed use of Licensor's rail conidor, including, without limitation, the relocation of the Electric Supply Line, or the construction of a new electric line to replace the Electric Supply Line. Notwithstanding the foregoing, Licensee agrees to make all emergency changes and minor adjustments, as determined by Licensor in its sole discretion, to the Electric Supply Line promptly upon Licensor's request. LICENSEE'S OPERATIONS 11. Construction and Maintenance of the Electric Suoolv Line. 11-1 Licensee shall not enter the Premises or commence conslruction unless accompanied by Licensor's representative, the Scheduling Agent or its designee. Licensee shall notify Licensor's Roadmaster, Glenn Monti at Glenn.Monti@bnsf.com, telephone 541-880-5639, at least ten (10) business days prior to installation of the Electric Supply Line and prior to entering the Premises for any subsequent maintenance thereon. ln the event of emergency, Licensee shall notifu 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. 9.2 9.3 10 2 Fom 421i Rev.20200605 Tracking #21W-11952 '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 malerials, within twenty-five (25) feet of the centerline of any railroad track on the Premlses unless Licensee has obtained prior wriften approval from Licensor. Licensee shall, at its sole cost and expense, perform all activities on and about the Premises, including without limitation all construction and maintenance of the Electric Supply Line, in such a manner and of such materials as not at any time to endanger or interfere with (i) the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. lf ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to onsure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor lo exercise any rights granted in this Section will alter the liability allocalion provided by this License. 11.6 Licensee shall, at its sole cost and expense, construct and maintain the Electric Supply Line in such a rnanner 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 fufure 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 afler 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, sunender the Premises lo Licensor pursuant to the terms and conditions set forth in Section 24hereof . 1'l .7 Licensor may direct one or more of its field engineers or inspectors to observe or inspect the construetion 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 L lf ordered at any time to halt construction or maintenance of the Electric Supply Line by Licensor's personnel due lo 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 solety Licensee's responsibility to ensure that the Electric Supply Line is conslructed 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 Seclion will alter in any way the liability allocation provided by this License. !f 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 obllgations of Licensee shall not alter the liability allocation hereunder. 3 Form 421; Rev. 20200605 Tracking #21W-'11952 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 Eleclric Safety Code. 11.9 lf the operation or maintenance of the Electric Supply Line at any time causes interference, including but not limited to physical interference from electromagnetic induction, electrostatic induction, or from stray or other currents, with the facilities of Licensor or of any lessee or licensee of Licensor, or in any manner interfere with the operation, maintenance, or use by Licensor of its right-of-way, tracks, structures, pole lines, signal and communication lines, radio, or other equipment, devices, other property or appurtenances thereto, Licensee agnees immediately to make such changes in the Electric Supply Line and fumish such protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be necessary, in the ludgment of Licensor's representative, to eliminate such interference. The cost of such protective devices and their installations shall be borne solely by Licensee. lf any of the interference covered by this Section 11.9 shall be, in the judgment of Licensor, of such importance to the safety of Licensor's operations as to require immediate conective action, Licensee, upon notice from Licensor, shall either, at Licensor's election, cease using the Electric Supply Line for any purpose whatsoever and remove same, or reduce the voltage or load on the Electric Supply Line, or take such other interim protective measures as Licensor may deem advisable, until the protective devices andlor replacement equipment required by this Sectlon 11.9 have been installed, put in operation, tested, and found to be satisfactory to conect 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 reguested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby agrees lo reimburse Licensor for the expense so incuned. '12. Borino and Excavation. 12.1 Prior to Licensee conducting any boring, excavation, or similar work on or aboul any portion of the Premises, Licensee shall contact the applicable State's calltefore-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 slructures exist below lhe surface, orovided. however, that in lieu of the foregoing hand-tool exploration, Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.9., consulting with the State lnfrastructure Corporation) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment. Licensee shall request information from Licensor conceming the existence and approximate location of Licensor's underground lines, utilities, and pipelines at or near the vicinity of the proposed Electric Supply Line by contacting Licensor's Telecommunicalions Helpdesk, cunently at 1-800-533-2891 (option 1, then option 7), at least ten (10) business days prior to installation of the Electric Supply Line. Upon receiving Licensee's timely request, Licensor will provide Licensee with the information Licensor has in its possession regarding any existing underground lines, utilities, and pipelines at or near the vicini$ of the proposed Electric Supply Line and, if applicable, identifu the location of such lines on the Premises pursuant to Licenso/s standard procedures. Licensor does not wanant the accuracy or completeness of information relating to subsurface conditions of the Premises and Licensee's operations will be subject at all times to the liability provisions herein. 12.2 For all bores gr€ater 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 prevenl subsidence during the installation process. lf the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to fumish for Licensor's review and approval, in Licenso/s sole discretion, a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at Licensee's sole cost and expense, carry out the approved plan in accordance with all terms ther6of and hereof. 4 Form 421: Rev. 20200605 12.3 LIABILITY AND INSURANCE 13. Liabilitv and lndemnification. Tracking t21W-11952 Any open hole, boring, orwellconstructed on the Premises by Licensee shall be safelycovered and secured at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be: 12.3.1 filled in to sunounding ground levelwith compacted bentonite grout; or 12.3.2 othenrise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on Licensor's propefi for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements. 13.1 For purposes of this License: (a)'lndemnitees'means Licensor and Licensor's affiliated companies, partners, successors, assigns, legal representatives, officers, directors, sharehotders, employees, and agents; (b) "Liablllties" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable attorneys' fees, costs of investigation, removal and remediation, and govemmental oversight costs) environmental or othenrise; and (c) "Llcenses Partiee' means Licensee and Licensee's officers, agents, invitees, licensees, employees, or contraclors, 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 PERiIITTED 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 TNDIRECTLY ARIS|NG OUT OF, RESULTTNG FROM, OR RELATED TO (tN WHOLE OR rN PART): 13.2.1 THIS LICENSE,INCLUDING, WTHOUT LIMITATION,ITS ENVIRONMENTAL PROVISIONS, 13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANTTO THIS UCENSE, 13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES, 13.2.4 THE ENVIRONMENTAL GONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED TO BY LIGENSEE, OR 13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY. 13.3 TO THE FULLEST EXTENT PERMITTED BY I.AW, UCENSEE NOW AND FOREVER WAIVES, AND wlLL 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 LIABILIW ACT, AS AMENDED ("CERCLA') OR OTHER ENVTRONMENTAL LAWS (DEF|NED BELOW). NOTHTNG !N THIS LICENSE !S MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES AND THIS LIGENSE SHOULD NOT BE SO CONSTRUED. IF ANY AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S COTIMON GARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, ANO 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 PREIIISES AS CONTEMPLATED BY THIS LICENSE SHALL LTCENSOR BE RESPONSIBLE TO LIGENSEE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES. 5 Form421;Rev 20200605 14. 15. Tracking #21W-11952 13.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAw' LICENSEE SHALL, AND SHALL CAUSE ITS GONTRACTOR TO, RELEASE, INDE]IINIFY, DEFENO, AND HOLD THE INDEMNITEES HARMLESS FROi,l AND AGAINST ANY LIABILITIES ARISING OUT OF OR REI-ATED TO (lN WHOLE oR tN PART) ANY SUCH ASSERTTON INCLUD|NG, BUT NOT LIMITED TO, ASSERTTONS OF EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWNG OR ANY PROCEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS. UABILITY ACT, THE SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFEW AND HEALTH ACT, THE RESOURCE CONSERVATION AND RECOVERY AGT, AND ANY SIMII.AR STATE OR FEDERAL STATUTE. 13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES ARE PROXIITIATELY CAUSED BY THE GROSS NEGLIGENCE OR WLLFUL 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 mafter covered by this License for which Licensee has an obligation to assume liability for andlor save and hold harmless any lndemnitee. Licensee shall pay allcosts and expenses incident to such defense, including, but not limited to, reasonable atlorneys'fees, investigators'fees, litigation and appeal expenses, settlement payments, and amounts paid in satisfaction of judgments. Personal Prooertv Risk of Loss. ALL PERSONAL PROPERW, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT, OR REI.ATED MATERIALS UPON THE PREMISES WLL BE AT THE RISK OF LICENSEE ONLY, AND NO INDEMNITEE WLL BE LIABLE FOR ANY DATiAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE. lnsurance. Licensee shall, at its sole cosl and expense, procure and maintain during the term of this License the following insurance @verage: 15.1 Commercial General Liabilitv "CGL' lnsurance. a. The policy will provide a minimum of $2,000,000 per occunence and an aggregate limit of at least $4,000,000 but in no event willlhe coverage be in an amount less than the amount otherwise canied by Licensee. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and include coverage for, but not limited to, the following:. Bodily lnjury and Property Damage. Personal lnjury and Advertising lnjury. Fire legalliability. Products and completed operations. Contractual Liability for an "lnsured Contract" consistent with the definition under the standard ISO general liabi lity policy form. b. This policywill lnclude thefollowing endorsements or language, which shallbe indicated on orattached to the certificate of insurance:r The definition of "lnsured Contract" will be amended to remove any exclusion or other limitration for any work being done within 50 feet of Licensor's property:. Waiver of subrogation in favor of and acceptable to Licensor;r Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle Brokerage, lnc.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 canied by Licensor. 6 Form 421; Rev. 20200605 Tracking #21W-11952 c. The parties agree that the workers' compensation and employers' liabilily related exclusions in the CGL policy(s) are intended to apply to employees of the policyholder and will not apply to Licenso/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 BusinessAutomobilelnsurance a. The insurance will provide minimum coverage with a combined single limit of at least $1,000,000 per accident, and include coverage for, but not limited to the following: ' Bodily injury and property damage.. Any and all vehicles owned, used or hired. 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 caried by Licensor. 15.3 Workers' Comoensation and Emolovers' Liabilitv lnsurance The policy will provide coverage of all employees performing any part of the work or services including coverage for, but not limited to:r Licensee's statutory liability under the workers'compensation laws of the state(s)in which the work or services are to be performed. The policy will cover all of Licensee's employees, regardless of whether such coverage is optional under the law of that state(s).. Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease policy limit, $500,000 by disease each employee. b. The policy will include contain the following endorsements or language, which shall be indicated on or attached to the certificate of insurance:. Waiver of subrogation in favor of and acceptable to Licensor, 15.4 Railroad Protective Liabilitv lnsurance. The policy will name only Licensor as the lnsured and will provide coverage of at least $2,000,000 per occurence 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 COIUPLETED WTHIN ONE (f ) YEAR OF THE EFFECTIVE DATE. lf further maintenance of the Electric Supply Line is needed at a later date, an additional Railroad Protective Liability lnsurance Policy shall be required. The policy will be issued on a standard ISO form CG 00 3512 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.r No other endorsemenls restricling 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 Fonn421: Rev 20200605 Tracking #21W-11952 ln lieu of providing a Railroad Protective Liability Policy, for a period of one ( 1 ) year from the Effective Date, Licensee may participate in Licensor's Blanket Railroad Protective Liability lnsurance Policy available to Licensee or iB contractor. The limits of coverage are the same as above. The cost is $506.00. X Licensee elects to participate in Licensor's Blanket Policy; o Licensee declines to participate in Licensor's Blanket Policy. 15.5 OtherReouirements: 15.5.1 Where allowable by law, no exclusion for punitive damages may be included in any policy. 15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. ln addition, Licensee's insurers, through the terms of the policy or policy endorsernent, waive their right of subrogation against Licensor for all claims and suits. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of Licensee's owned or leased property or property under Licensee's care, custody, or control. 15.5.3 Allocated Loss Expense, including but not limited to defense costs and expenses, will be in addition to all policy limits for coverage under the insurance requirements. 15.5.4 Licensee is not allowed to self-insure without the prior written consent of Licensor. lf Licensor allows Licensee to self-insure, Licensee shall direclly cover any self-insured retention or other financial responsibility for claims in lieu of insurance. Any and all Licensor liabilities that would othenryise 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 fumish to Licensor an acceptable certificate(s) of insurance tom an authorized representative evidencing the required coverage(s), endorsements, and amendments. 15.5.6 Licensee shall notify BNSF in wrlting 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 cunent Best's Guide Rating of A- and Class Vll or better, and authorized to do business in the state(s) in which the service is to be provided. 15,5.8 lf the coverage provided by any of the insurance policies required by this agreement is purchased on a "claims madeo 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. 15.5.10Licensee 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 lhe then-cunent risk management practices in the railroad industry and underwriting practices in the insurance industry. 15.5.121f Licensee will subcontract any portion of the operation, Licensee shall require that the subcontractor provide and maintain insurance coverage(s) as set forth herein, naming Licensor as 8 Fom 421; Rev. 202ffi605 Tracking #21W-11952 an additional insured. ln addition, Licensee shall require that the subcontractor shall release, defend and indemnify Licensee to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor under this agreement. 15.5.13Failure to provide evidence as required by this section shall entitle, but not require, Licensorto terminate this License immediately. Acceptance of a certificate that does nol comply with this section shall not operate as a waiver of Licensee's obligations hereunder, '15.5.14The 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 ln the event of a claim or lawsuit involving Licensor arising out of lhis Agreement, Licensee will make the policy covering such claims or lawsuits available to Licensor. 15.5.16 lf Licensee maintains broader coverage and/or higher limits than the minimum requirements in this Agreement, Licensor requires and shall be entitled to the broader coverage and/or the higher limits. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Licensor. 15.5.17 These insurance provisions are intended to be a separate and distinct obligation on the part of the Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby regardless of whether or not indemnity provisions are determined to be enforceable in the jurisdiction in which the work or services performed under this License is performed. 1 5.5.18 For purposes of this Sec-tion I 5, Licensor shall mean "Burlington Northern Santa Fe, LLC", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each. COMPLIANCE wlTH IAWS. REGULATIONS. AND ENVIRONMENTAL MATTERS 16. Comoliance with Laws. Rules. and Reoulations. 16.1 Licensee shall observe and comply with any and all applicable federal, state, local and tribal laws, stalutes, regulations, ordinances, orders, covenants, restrictions, or decisbns of any court of competent jurisdiction ('Legal Requirements") relating to the construction, maintenance, and use of the Electric Supply Line and the use of the Premises. 16.2 Prior to entering the Premises, Licensee shall and shall cause its contracto(s) to comply with all of Licensor's applicable safety rules and regulations. Licensee must ensure that each of ils employees, contractors, agents or invitees entering upon the Premises completes the safety orientation program at the Website '\ruww.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 othenruise to perform its obligations hereunder in accordance with the terms and conditions hereof. I Form 42.|; Rev 20200605 Tracking #21W-11952 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 othenruise 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 shallautomatically 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 refened to as the "Envlronmental Laws"). Licensee shall not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises. 17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substrances' may now or in the future be defined by any federal, state, or local govemmental agency or body on the Premises. Licensee agrees periodically to fumish Licensor with prool satisfactory to Licensor that Licensee is in compliance witr the provisions of this Sectlon 17.2. 17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at (80O) 832-5452 of any known (i) release of hazardous substanccs 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 lo Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on, from, or affecting the Premises, Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation. 17.4 lf Licensor has notice from Licensee or othenrvise of a release or violation of Environmental Laws arising in any way with respect to the Electric Supply Line which occuned or may ocrur during the term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to investigate, remediate, respond to or othenrise cure such release or violation affecting the Premises or Licensor's right-of-way. 17.5 Licensee shall promptly report to Licensor in vwiting 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 wfiatever 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. DISGLAIMER OF WARRANNES 18. No Wananties. 18.1 LIGENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS LTCENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANNES HAVE BEEN MADE BY LICENSOR OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANYAND ALL 10 Form421; Rev.20200605 Tracking #21W-11952 WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDTNG, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILIW, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE. 18.2 LICENSOR MAKES NO WARRANW, REPRESENTATTON OR CONDTTION OF ANY KIND, EXPRESS oR rMpLrED, CONCERNTNG (A) THE SCOPE OF THE LTCENSE OR OTHER RIGHTS GRANTED HEREUNDER TO LTCENSEE OR (B) WHETHER OR NOT LTCENSEE'S CONSTRUCnON, MAINTENANCE, OWNERSHIP, USE OR OPERATTON OF THE ELECTRIC SUPPLY LINE WLL VIOLATE OR INFRTNGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES, INGLUDING, WTHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY THIRD PARTY. 19.Disclaimer of Warrantv for Quiet Eniovment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND LICENSEE !N THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET ENJOYMENT IS MADE. Eviction at Risk of Licensee. ln case of the eviction of Licensee by anyone owning, claiming title to, or claiming any interest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable (i) to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recuning charge paid in advance, or (ii) for any damages or costs Licensee sustains in connection with the eviction. LIENS AND TAXES Liens and Charoes. Licensee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Licensee on the Premises. Licensor is hereby authorized to post any notices or take any other action upon or with respect to the Premises that is or may be permitted by law to prevent the aftachment of any such liens to the Premises; provided, however, that failure of Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 21 or any other Section of this License. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied or assessed by any governmental or quasi-governmental body upon the Electric Supply Line or any other improvements constructed or installed on the Premises by or for Licensee (collectively, the "lmprovements") or any Taxes levied or assessed against Licensor or the Premises that are attributable to the lmprovements. DEFAULT. TERMINATION. AND SURRENDER Default and Termination. ln addition to and not in limitation of Licensor's right lo terminate for failure to provide evidence of insurance as required pursuant to the terms of Section 15, the following events are also deemed to be events of default pursuant to which Licensor has the right to terminate as set forth below: 23.1 lf default shall be made in any of Licensee's @venants, 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 Llcensee. 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 Sectlon 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 lhe right to terminate this License for any subsequent default ordefaults, nor shall any such waiver in any way affect Licensor's ability 20. 21 22 23. - 11 -Form 421; Rev. 20200605 Tracking #21W-119152 to enforce any Section of this License. The remedies set forth in this Sectlon 23 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity. 23.4 ln addition to and not in limitation of Licensor's rights to terminate this License forfailure to provide evidence of insurance or occurrence of defaults as described above, this License may be terminated by either party, at any time, by serving thirty (30) days'written notice of termination upon the other party. Such termination shall not release either party hereto ftom 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. Sunender of the Premises. 24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and expense: 24.1.1 if so directed by Licensor in writing, remove the lmprovements, the Electric Supply Line and all appurtenances therelo, 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 othenvise agreed to by Licensor, 24.2 Upon any expiralion or termination of this License, if Licensee fails to sunender the Premises to Licensor or if Licensee fails to complete its obligations under Section 24.{ above (the "Restoration Obllgatlons"), Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are sunendered and the Restoration Obligations are completed. Neither lermination nor expiration shall release Licensee from any liability or obligation under this License, whether of indemnity or othenryise, resulting from any acts, omissions or events happening prior to the dat6 of termination, or, if later, the dale when Licensee sunenders the Premises and all of lhe Restoration Obligations are completed. 24.3 lf Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such termination of its tenancy, then Licensor may, at its election, either: (i) remove the Electric Supply Line and lhe other lmprovements or otherwise reslore the Premises, and in such event Licensee shall, within thirty (30) days after receipt of bill therefor, reimburse Licensor for cost incuned, (ii) upon written notice to Licensee, take and hold the Electric Supply Line and the other lmprovements and personal property as its sole property, without paymbnt or obligation to Licensee therefor, or (iii) specifically enforce Licensee's obligation to restore and/or pursue any remedy at law or in equity against Licensee for failure to so restore. Further, if Licensor has consented to the Electric Supply Line and the other lmprovements remaining on the Premises following termination, Licensee shall, upon request by Licensor, provide a bill of sale in a form acceptable to Licensor conveying the Electric Supply Line and the other lmprovements to Licensor for no additional consideration. MISCELLANEOUS 25. Successors and Assions. All provisions contained in this License shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and assigns of Licensor and Licensee to the same extent as if each such successor and assign was named a party to this License. 12 Forn 421i Rev. 20200605 Tracking #21W-11952 26. Assiqnment. 26.1 Licensee may not sell, assign, lransfer, or hypothecate this License or any right, obligation, or interest herein (either voluntarily or by operation of law, merger, or othenrvise) without the prior written consent of Licensor, which consenl 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 50oh ol the combined voting power of the outstanding voting equity interests of Licensee or any successor thereto or the entity resulting from such reorganization, recapitalizalion, 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 conlravention of the provisions of this License (a 'Purported Asslgnment") to another party (a "Purported Transferee"), the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this License, including but not limited to the obligation to comply with the provisions of Section 15 above conceming insurance requirements. ln addition to and not in limitation of the foregoing, Licensee, for itself, its successors and assigns, shall indemnify, defend and hold harmless Licensor for all Liabilities of any nature, kind or description of any person or entig directly or indirectly arising out of, resulting from or related to (in whole or in part) a Purported Assignment. The provisions of this Section 28.3 shall survive the expiration or earlier termination of lhis License. 26.4 Licensor shall have the right to transfer and assign, in wtole 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 thiry (30) days' advance written notice of such change in address, lf to Licensor:Jones Lang LaSalle Brokerage, lnc, 4200 Buckingham Rd., Suite 110 Fort Worth, TX 76155 Attn: Permits/Licenses 27 _13 Form 421: Rev. 20200605 28. 29. 30. 31. 33. 34. 35. 32. Tracking #21W-115152 with a copy to:BNSF Railway Company 2650 Lou Menk Dr. Fort Worth, T( 76131 Attn: Senior Manager Real Estate If to Licensee PacifiGorp 825 NE Multnomah Street, Suite 1700 Portland, OR97232Attn: Scott Mease Survival. Neither termination nor expiration will release either party from any liability or obligation under this License, whether of indemnity or otherwise, resulting from any aots, omissions or events happening prior to the date of termination or expiration, or, if later, the date when the Electric Supply Line and the other lmprovements are removed and the Restoration Obligalions are completed in accordance with the terms hereof. Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public record- Aoolicable Law. All questions concerning the interpretation or application of provisions of this License shall be decided according to the substantive laws of the Slale of Texas without regard to conflicts of law provisions. Severabilitv. To the maximum extent possible, each provision of this License shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of tris License shall be prohibited by, or held to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License. lnteoration. This License is the full and complete agreement between Licensor and Licensee with respect to all matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the parties hereto relating lo Licensee's use of the Premises as described herein. However, nothing herein is intended to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in any prior written agreement between the parties. Joint and Several Liabilitv. lf Licensee consists of two or more parties, all the covenants and agreements of Licensee herein contained shall be the joint and several covenants and agreements of such parties. Waiver, The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right of Licensor to enforce that provision for any subsequent breach thereof. lnteroretation. 35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based upon the source of the draftsmanshap; both parties hereby agree that this License shall not be subject to the principle that a contract would be construed against the party wtrich drafled 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-Form421;Rev 20200605 36. 37 Tracking *21W-11!b2 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 ars as amended, modified or supplemented from time to time. Countemarts. This License may be executed in multiple counterparts, each of wtrich shall, for all purposes, be deemed an original but which together shall conslitute 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 excfianged electronically and any electronic version of any party's signature shall be deemed to be an original signature for all purposes. Ucensor's Reoresentative. Jones Lang l-aSalle Brokerage, lnc. is acting as representative for BNSF Railway Company, END OF PAGE-SIGNATURE PAGE FOLLOWS -15-Fom421; Rev.20200605 Traoldng#21W.11S2 This Lloanse has beon dulyexecrtbd bythe par$oe lpnb *of ttp Effocilrrc Datc. LEEIIIE: BflSF Bathty Coflptrry, a Dolawan ooPonatlon Ey Jones L*rg tri$alle &okerage, tnc. 4200 Arcldrrgham Fload, Sulb'll0 Fort Wortl, D( 76156 By:=Sla,o. /,<uad* BY: strane rcuerr'l{TiUe:yp6 prwidEnt u9H.8EiE: Prc|neorp, an ffi-gon oorporetion BS oururaroan;ffi_ lrlanagernot i6 Ftmr,l2t; R.ry.2@0SG COORDINATE SYSTEM: OR S EXHIBIT ''A'' ATTACHED TO CO}{TRACT BETWEEN BNSF RAILWAY COMPANY AND N I IPACIFICORP SCALE:1 lN = 100 FT NORTHWEST DIV.SECTION: UBDIV TOIINSHIP & RANGE: .S. 0640 MP: 0.26 MERIDIAN10t5t2021 :flliiffiPd o oco E, \6 153'113', ,, art 9t fflgs'lkHl ? EXIgTING /(l' WOOD POLE ,}J6+ 1!:.- i: t'- ' 'it I #"*,E E,'t:f,..:.' €:' ,iryl ' lll\^ !,E. I -r+' ,t t t'"I f, nt i ,. & Ii Source . Esrr. rraaxar de"oHe, E USDA,-"!,.Sp.S AeroGRlD. lGN. t,i I rcs and Com NOTE: ONLY 1 NEW NEUTRAL LINE IS BEING ADDED EXISTING POLE/LINE AGREEMENT BY GN-368.13 TOTAL LENGTH ON BNSF RA/V IS 266. DESCRIPTION OF WRES OVER TRACK WRES LOCATED AS SHOWN BOLD ryPE ELECTRIC NEUTRAL NUMBER 3 EXIST ELETRIC 1 NEW NEUTRAL VOLTAGE 12 KV DISTANCEABOVE TOP OF RAIL CLEARS RAILWAY COMPANY'S WRES KLAMATH FALLS COUNW OF KLAMATH KFHSTATE OF OR 39' TRACKTNG NO. 21W-1t952 otaol?.{crr(,q l!IUE o. = REVISION 1 DRAWNG NO.82843