20220520Notice of Affiliate Transaction-BNSF Railway.pdf

YPacrnConp Timothy K. Clark : . i ,. ,, t' i..j
Senior Attorney
1407 W. North Temple, Suite 320
Salt Lake City, llT 811t6 :
801-2204565 OfJice
T i ttt" C I a r h@t ac iJi c o r p. c o m
VA ELECTRONIC FILING
May 20,2022
Idaho Public Utilities Commission
I l33l West Chinden Boulevard
Building 8 Suite 20lA
Boise, Idaho 837 14-1021
Attention:Jan Noriyuki
Commission Secretary
PacifiCorp Notice of Affiliate Transaction - PacifiCorp and BNSF Railway
Company
Case No. PAC-E-05-8
Dear Ms. Noriyuki:
Pursuant to Commitmentl 17(2), incorporated in the Idaho Public Utilities Commission
Order No. 29973, issued February 13,2006, as supplemented by Order No. 29998
March 14,2006, in the above-referenced proceeding, approving the acquisition of PacifiCorp by
MidAmerican Energy Holdings Company (now Berkshire Hathaway Energy Company or BHE),
PacifiCorp hereby provides notice of an affiliated interest transaction with BNSF Railway
Company (BNSF).
PacifiCorp entered into license agreements with its affiliate BNSF Railway Company
(BNSF) to secure three "License for Electric Supply Line Across or Along Railway Property"
permits (collectively, the Licenses). Permit #2lW-l1466 will allow PacifiCorp to construct and
maintain an electric supply line containing a maximum of one (l) 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 of Klamath Falls, County of Klamath, State of Oregon,
Line Segment 0055, Mile Post 9.32.The second license, Permit #zlW-11468, will allow
PacifiCorp to construct and maintain an electric supply line containing a maximum of one (l)
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 of Klamath Falls, County of
Klamath, State of Oregon, Line Segment 0055, Mile Post 9.57. The third license, Permit
#zlW-12340, will allow PacifiCorp to construct and maintain an electric supply line containing a
maximum of three (3) conductors, together with its supporting or containing structures across or
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along BNSF's rail corridor at or near the station of Glenrock, County of Converse, State of
Wyoming, Line Segment 0005, Mile Post 174.20. Verified copies of the Licenses are included
with this Notice as Attachment A. Attachment B, and Attachment C.
PacifiCorp is a wholly-owned indirect subsidiary of Berkshire Hathaway Energy
Company (BHE). BHE is a subsidiary of Berkshire Hathaway, Inc. BNSF is also a subsidiary of
Berkshire Hathaway, Inc. Therefore, the ownership interest of Berkshire Hathaway, Inc., in BHE
and in BNSF creates an affiliated interest relationship between PacifiCorp and BNSF.
Entering into these licensing agreements with BNSF is in the public interest because they
allow PacifiCorp to install and maintain facilities necessary to provide electric service and to
meet its obligation to provide safe and reliable electric service. This work necessitates PacifiCorp
traversing BNSF property, which BNSF authorizes by executed agreement. Without the
Licenses, PacifiCorp would not have the required access and would not be able to meet its
obligation and further its commitment to modernization and system reliability.
As the property owner, BNSF is the only entity that can provide the Licenses to
PacifiCorp. BNSF uses standardized pricing for these types of permits. PacifiCorp paid
$5,034.00 for Permit #2lW-l1466, $5,034.00 for Permit #2lW-l1468, and $5,057.00 for Permit
#zlW-12340. The amounts paid for each25-year License includes the application fee, permit
fee, and insurance.
Please do not hesitate to contact me if you have any questions
Sincerely,
'/-..*, /| (/,,.(_
Timothy K. Clark
Senior Afforney
PacifiCorp
Enclosures:
Attachment A.pdf
Attachment B.pdf
Attachment C.pdf
2
ATTACHMENT A
PacifiCorp Notice of Affiliate Transaction
to
February 16,2022
PacifiCorp
Attention: Mr. Scott Mease
825 NE Multnomah Street, Suite 1700
Portland, OR 97232
JtL
h*riod-,:
Jones Lang taSalle Brokcrage, lnc.
4200 Bucklrgham Rd.. Suite 110
Forl Worfi. Telos 76155
td+1 817-2N-26d), fax +1 81730&8265
ztw-1t466
Dear Mr. Mease:
Enclosed please find one (l) fully executed Electric License Agreeinent. A *py of the executed agreement must
be available upon request at the job site as authorization to do the work. Please contact .8N.9F's Scheduling
Agent at Al or IIGS5G3624 at leastftfieen O5) days in advance of entryt
ond BEFORE YOU DIG, CALL [phone] (option 7).
Licensee must ensure that each of its employees, contractors, agents or invitees entering upon the premises
completes the safety orientation progftrm at the website www.BNSFcontractor.com prior to entering upon the
prernises. The certification is good for one year, and each person entering the pre,mises must possess the card
certi$ing completion.
No encroachment above, below or on BNSF Right-of-Way will be allowed without the presence of an Inspector
Coordinator and Flagman. You must contact BNSF's Scheduling Agent to arrange for tbose services. The
scheduling agent may be contacted atyvilsoncompan),.utility.icig,wilsonco.com or 81G556-3624. T}lle installation
contractor must comply with all applicable sections of this agreement, including the requirernents of section 16
regarding safety requireme,nts prior to encroaching on BNSF Right-of-Way. The installation contractor must
present and maintain a copy of the executed agreement on site for the duration of the installation activities.
Please note that a copy of the executed agreement must be available upon request at job sit{s) allowing
authorization to do the work.
If you need additional infonnation, please contact me at [phone]
Sincerely,
Manager Permits
Enclosure
c0:u, i ls onc o mlru n y. u ti I it y. ict tt, w i lso nc o. com
Glenn Monti - BNSF Roadmaster- [e-mail]
1
Tracking #21W-11466
LICENSE FOR ELECTRIG SUPPLY LINE
ACROSS ORALONG RAILWAY PROPERW
(Electric Light, Power Supply, lnespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective February 23rt, 2022 (the
"Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and PACIFIGORP,
an Oregon corporation ('Llcensee").
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, interasts, and
estates of third parties, including, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forlh below, to construct and maintrain, in strict accordance
with the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings
and Speciflcations"), 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, State of Oregon, Line
Segment 0055, Mile Post 9.32 as shown on the attached Drawing No. 82391, dated November 1 1, 2021, attached
hereto as Exhl riAr,and incorporated herein by reference (the "Premises").
Term. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
Existino lmorovements. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
licenseeb, easement beneficiaries or lien holders, if any, or interfere with the use, repair, maintenance or
replacement of such improvements.
Use of the Premises. Licensee shall use the Premises solely for construction, maintenance, and use of the Electric
Supply Line in accordance with the Drawings and Specifications. Licensee shall not use the Premises for any other
purpose and Licensee is expressly prohibited from using or allowing any telecommunication facilities or equipment
within the Premises or using or allowing the use of the Premises for any other purpose.
Alterations. Except as set forth in this License, Licensee may not make any alterations to the Premises or
permanently affix anything to lhe 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
and No/100 Dollars ($3,700.00) as compensation for the use of the Premises,
7. Costs and Exoenses.
7.1 For the purpose of this License, "cost" or "costs" and "expense' or 'expenses" includes, but is not limited
to, actual labor and material costs including all assignable additives, and material and supply costs at
current value where used.
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 observat'on services described in this License (collectively, the "Seryices"). Licensee shall
bear the cost of the Services when deemed necessary by Licensor's representative. Flagging costs shall
2
3.
4
5.
6
7.2
Form 421; Rev. 20200605
8.
Tracking #21W-11466
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 overlime, 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 Sectlon 7.
7.3 Licensor, at its sole discretion, rnay elect to designate a third party (the .Scheduling Agent"), to perform
and/or arange for the performance of the Services.
Pavment Terms. All invoices are due thirty (30) days after the date of invoice. if Licensee fails to pay any monies
due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
Streat Journalin the preceding December plus two and one-half percent(2-112o/o), or (ii) the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
Reserved Riohts of Use. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties
who may obtain written permission or authority from Licensor:
9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or communication
pipe/lines/cables and appurtenances (other than the Electric Supply Line) and other facilities or structures
of like character upon, over, under or across the Premises existing as of the Effective Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities,
structures and related appurtenances upon, over, under or across the Premises; or
9,3 to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided Licensor
uses all commercially reasonable efforts to avoid material interference with the use of the Premises by
Licensee for the purpose specified in Sectlon 4 above.
10.Riqht to Reouire Relocation. lf at any time during the term of this License, Licensor desires the use of its rail corridor
in such a manner as would, in Licensor's reasonable opinion, be interfered with by the Electric Supply Line, Licensee
shall, at its sole expense, within thirty (30) days after receiving written notice from Licensor to such effect, make
such changes in the Electric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the Electric Supply
Line, or the construction of a new electric line to replace the Electric Supply Line. Notwithstanding the foregoing,
Licensee agrees to make all emergency changes and minor adjustments, as determined by Licensor in its sole
discretion, to the Electric Supply Line promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11 Construction and Maintenance of the Electric Suoolv Line.
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by Licensor's
representative, the Scheduling Agent or its designee. Licensee shall notifi7 Licensor's Roadmaster, Glenn
Monti at [e-mail], telephone [phone], at least ten (10) business days prior to
installation of the Electric Supply Line and prior to entering the Premises tor any subsequent maintenance
thereon. In the event of emergency, Licensee shall notify Licensor of Licensee's entry onto the Premises
at the telephone number above as soon as practicable and shall promptly thereafler follow up with written
notice of such entry.
I
2 Form421; Rev 20200605
Tracking #21W-11466
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while
on the Premises.
1 1.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks
lo 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 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 aM maintenance of the
Elecfic 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 prcperty 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 monilor Licensee's use of the Premises to determine the safe nature
thereof, il being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe.
Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the
liability allocation provided by this License.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Electric Supply Line in such a
manner and of such material that the Electric Supply Line will not at any time endanger or interfere with (i)
the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe operation
and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. The
construction of the Electric Supply Line shall be completed within one (1) year of lhe Effective Date, and
any subsequent maintenance shallbe completed within one (1)year of initiation. Within fifteen (15) days
after completion of the construction of the Electric Supply Line or the performance of any subsequent
maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to
substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in
writing. On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost
and expense, sunender the Premises to Licensor pursuant to the terms and conditions set forth in Section
24hereof .
11.7 Licensor may direct one or more of its field engineers or inspectors to observe or inspect the construction
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. lf ordered at any time to halt
construction or maintenance of the Electric Supply Line by Licensor's personnel due to non-compliance
with the Drawings and Specifications or any other hazardous condition, Licensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to
observe or inspect, or to halt work on, the Electric Supply Line, it being solely Licensee's responsibility to
ensure that the Electric Supply Line is constructed and maintained in strict accordance with the Drawings
and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the
exercise of, nor the failure by Licensor to exercise, any right granted by this Section will alter in any way
the liability allocation provided by this License. lf at any time Licensee shall, in the sole judgment of
Licensor, fail to properly perform its obligations under this Section 11, Licensor may, at its option and at
Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of
ils 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 Form421l'Rev 20200605
Tracking #21W-11466
11.8 Licensee shall, at its sole cost and expense, construct and at all times maintain the Electric Supply Line in
accordance with the National Electric Safety Code.
11.9 lf the operation or maintenance of the Electric Supply Line at any time causes interference, including but
not limited to physical interference from electromagnetic induction, electrostatic induction, or from stray or
other 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 eguipment, devices, other property or appurtenances
thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and fumish such
protective devices andlor replacement equipment to Licensor and its lessees or licensees as shall be
necessary, in the judgment of Licensor's representiative, to eliminate such interference. The cost of such
protective devices and their installations shall be borne solely by Licensee. lf any of lhe inlerference
covered by this Section 11.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licenso/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 whalsoever and remove
same, or reduce the voltrage or load on the Electric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, until the protective devices and/or replacement equipment
required by this Section 11.9 have been installed, put in operation, tested, and found to be satisfactory to
conect the interference.
11.10 Licensee shall, at its sole cost and expense, remove allcombustible materialfrom around wooden poles
on the Premises, if any, and will at all times keep the space around such poles free of such material, and if
removal of such combustible material shall not be attended to with 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 3d parties
mark the location of utilities. Licensee shall explore the proposed location for such work with hand tools to
a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other
structures exist below the surface, orovided, however, that in lieu of the foregoing hanGtool 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 Telecommunications Helpdesk, curently at't-800-533-2891 (option 1, then
option 7), at least ten (10) business days prior to installation of the Electric Supply Line. Upon receiving
Licensee's timely request, Licensor will provide Licensee with the information Licensor has in its possession
regarding any existing underground lines, utilities, and pipelines at or near the vicinity of the proposed
Electric Supply Line and, if applicable, identify the location of such lines on the Premises pursuant to
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 greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil
investigation must be performed by Licensee and reviewed by Licensor prior to construction. This study is
to determine if granular material is present, and to prevent subsidence during the installation process. lf
the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor
may select a new location for Licensee's use, or may require Licensee to fumish for Licensor's review and
approval, in Licensor's sole discretion, a remedial plan to deal with the granular material. Once Licensor
has approved any such remedial plan in writing, Licensee shall, at Licensee's sole cost and expense, carry
out the approved plan in accordance with all terms thereof and hereof.
4 Form 421; Rev- 20200605
12.3
LIABILITY AND INSURANCE
13. Liabilitv and lndemnification.
Tracking #21W-1146;6
Any open hole, boring, orwell constructed on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings constructed on the Premises by Licensee shall be:
12.3.1 filled in to sunounding ground levelwith compacted bentonite grout; or
12.3.2 olhenrise secured or retired in accordance with any applicable Legal Requirement. No excavated
materials may remain on Licensor's property for more than ten (10) days, but must be properly
disposed of by Licensee in accordance with applicable Legal Requirements.
13.1 For purposes of this License: (a) "lndemnitees" means Licensor and Licensor's affiliated companies,
partners, successors, assigns, legal representatives, officers, directors, shareholders, employees, and
agents; (b) "Liabilities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable
attomeys' fees, costs of investigation, removal and remediation, and govemmental oversight costs)
environmental or otherwise; and (c) "Licensee Partles' 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 parly they control or exercise control over,
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW LICENSEE SHALL, AND SHALL CAUSE ITS
CoNTRACTOR TO, RELEASE, INDEMN|FY, DEFEND AND HOLD HARMLESS TNDEMNTTEES FOR,
FROM, AND AGATNST ANY AND ALL UABLmES OF ANY NATURE, K!ND, OR DESCRTPTION
DtREcTLy OR TNDIRECTLYAR|SING OUT OF, RESULTTNG FROM, OR RELATED TO 0N yltHOLE OR
rN PART):
13.2.1 THIS LICENSE, INCLUDING, WITHOUT LIiI]TANON, ITS ENVIRONMENTAL PROVISIONS,
13.2.2 AhNT ruGHTS OR INTERESTS GRANTED PURSUANTTO THIS LICENSE,
13.2.3 LICENSEE'S OCGUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
GoNTRTBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMTTTEO BY I.AW, LICENSEE NOW AND FOREVER WAIVES, AND
WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL
CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR IS A GENERATOR,
OWNER, OPERATOR" ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF THE
COMPREHENSIVE ENVIRONMENTAL RESPONSE, GOMPENSATION, AND UABILITY AGT, AS
AiTENOED (',CERCLA") OR OTHER ENVIRONMENTAL LAWS (DEFTNED BELOW). NOTHTNG rN
THIS LICENSE !S MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDE]IINITEE'S
COMMON CARRIER DEFENSES AND TH]S LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARTIILESS, AND
DEFEND INDEMNMES FOR ANY LIABILITIES RELATED TO THAT GONSTRUCTION OF THIS
UCENSE. tN NO EVENT AS BETWEEN LICENSOR AND UCENSEE AS TO USE OF THE PREMISES
AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSTBLE TO LTCENSEE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
5 Form 421: Rev. 20200605
14.
15.
Tracking #21W-11466
13.4 lF ANY EII|PLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE lS AN EMPLOYEE OF
ANY INDEIIINTTEE, TO THE FULLEST EXTENT PERMITTED BY [AW, UCENSEE SHALL, AND SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEiINIFY, DEFEND, AND HOLD THE INDE]I'NITEES
HARMLESS FROM AND AGATNST ANY L|ABILTTTES AR|SING OUT OF OR RELATED TO (rN WHOLE
oR tN PART) ANy SUCH ASSERnON INCLUD|NG, BUT NOT L|MITED TO, ASSERTTONS OF
EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWNG OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EMPLOYERS. LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE
RESOURCE CONSERVATION AND RECOVERV ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WLLFUL MISCONDUCT OF ANY
INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR AGTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRIGT 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 lndemnilee by any entity, relating to any matter covered by this Lhense for
which Licensee has an obligation to assume liability for and/or save and hold harmless any lndemnitee.
Licensee shall pay all costs and expenses incident to such defense, including, but not limited to, reasonable
attorneys'fees, investigators'fees, litigation and appeal expenses, settlement payments, and amounts paid
in satisfaction of judgments.
Personal Prooertv Risk of Loss. ALL PERSONAL PROPERW, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQU!Pi,|ENT, OR RELATED MATERIALS UPON THE PREMISES WLL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEiiNITEE WLL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE IN WHOLE OR IN PARTTO THE NEGLIGENCE OF ANY INDEMNITEE.
lnsurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of this License the
following insurance coverage:
15.1 Commercial General Liabilitv "CGL" lnsurance.
a. The policy will provide a minimum of $2,000,0@ per occurence 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 lSO occurrence form or equivalent and
include coverage for, but not limited to, the following:. Bodily lnjury and Property Damager Personal lnjury and Advertising lnjury. Fire legalliability. Products and completed operations, Contractual Liability for an "lnsured Contracl' consistent with the definition under the standard ISO
general liability policy form.
b. This policy will include the following endorsements or language, which shall be indicated on orattached
to the certificale of insurance:. The definilion 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 Licensor;. 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 Form4?'l;Rev 20200605
Tracking #21W-11466
c. The parties agree that the workers'compensation and employers' liability related exclusions in the CGL
policy(s) are intended to apply to employees of the policyholder and will not apply to Licensor's
employees.
d. No other endorsements that limil 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+ontributing with respect to any insurance canied by Licensor.
15.3 Workers'Comoensation and Emolovers'Liabilitv lnsurance
a. The policy will provide coverage of all employees performing any part of the work or services
including coverage for, but not limited to:. Licensee's slatutory liability under the workers'compensation laws of the state(s) in which the work
or services are to be performed. The policy will cover all of Licensee's employees, regardless of
whether such coverage is optional under the law of that state(s).. Employers' Liability (Part B) with limits of at least $500,000 each accident, $500,000 by disease
policy limit, $500,000 by disease each employee.
b. The policy will include contain the following endorsements or language, which shall be indicated on or
attached to the certificate of insurance:. Waiver of subrogation in favor of and acceptable to Licensor.
15.4 Railroad Protective Liabilitv lnsurance. The policy will name only Licensor as the lnsured and will provide
coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The coverage obtained
under this policy shall only be effective during the initial installation and/or construction of the Electric Supply
Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COMPLETED WITHIN ONE
(1) YEAR OF THE EFFECTIVE DATE. lf 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 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.r Endorsed to include Evacuation Expense Coverage Endorsement.. No other endorsements restricting coverage may be added.
' The original policy must be provided to Licensor and Licensee shall not perform any work or services
of any kind under this agreement until Licensor has reviewed and approved the policy.. The definition of "Physical Damage to Property" will be endorsed to read: "means direct and accidental
loss of or damage to all property owned by any named insured and all property in any named insured's
care, custody and control (including, but not limited to rolling stock and their contents, mechanical
construction equipment or motive power equipment, railroad lracks, roadbeds, catenaries, signals,
tunnels, bridges and buildings) arising out of the acls or omissions of the contractor named on the
Declarations."
7 Form 421: Rev. 20200605
Tracking #21W-11466
ln lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from the Effective Date,
Licensee may participate in Licensor's Blanket Railroad Protective Liability lnsurance Policy available to
Licensee or its contractor. The limits of coveraga are the same as above. The cost is $506.00.
Licensee elects to participate in Licensor's Blanket Policy;
Licensee declines to participate in Licensor's Blanket Policy
15.5 OtherReouirements:
15.5.1 Where allowable by law, no exclusion for punitive damages may be included in any policy.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. 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 retenlion or other
financial responsibility for claims in lieu of insurance. Any and all Licensor liabilities that would
othenrvise be covered by Licensee's insurance in accordance with the provisions of this agreement,
will be covered as if Licensee elected not to include a self-insured retention or other financial
responsibility for claims.
15.5.5 Prior to entering the Premises or commencing the services or work, Licensee shall furnish to
Licensor an acceptable certificate(s) of insurance from an authorized representative evidencing the
required coverage(s), endorsements, and amendments.
15.5.6 Licensee shall notify BNSF in writing at least 30 days prior to any cancellation, non-renewal,
substitution or material alteration of any insurance requirement.
15.5.7 Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or
with a cunent Best's Guide Rating of A- and Class Vll or belter, and authorized to do business in
the state(s) in whlch the service is to be provided.
15.5.8 lf the coverage provided by any of the insurance policies required by this agreement is purchased
on a "claims made'basis, Licensee hereby agrees to maintain coverage in force for a minimum of
three years after expiration, cancellation or termination of this agreement.
15.5.9 Licensee agrees to provide evidence to Licensor that it has the required coverage in place at least
annually or in the event of a renewal or material change of coverage.
15.5.10Licensee represents that this License has been thoroughly reviewed by Licensee's insurance
agen(s/broke(s), and that Licensee has instructed them to procure the insurance coverage
required by this License.
15.5.'l 1 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modify
the insurance requirements to reflect the then-current risk management practices in the railroad
industry and undenryriting practices in the insurance industry.
15.5.121f Licensee will subcontract any portion of the operation, Licensee shall require that the
subcontactor provide and maintain insurance coverage(s) as sel forth herein, naming Licensor as
E
tr
8 Form 421; Rev.20200605
Tracking #21W-114ffi
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 not comply with this
section shall not operate as a waiver of Licensee's obligations hereunder.
15.5.14 The fact that Licensee obtains insurance (including, without limitation, self-insurance) shall not
release or diminish Licensee's liabilities or obligations including, without limitation, the liabilities and
obligations under the indemnity provisions of the License. Damages recoverable by Licensor shall
not be limited by the amount of the required insurance coverage.
15.5.15 ln the event of a claim or lawsuit involving Licensor arising out of this Agreemenl, 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 covererge
andlor 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 parl 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 serviees 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 W|TH LAWS. REGULATIONS. AND ENVIRONMENTAL MATTERS
16. Comoliance with Laws. Rules. and Reoulations.
16.1 Licensee shall observe and comply with any and all applicable federal, state, local and tribal laws, statutes,
regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction
("Legal Requlrements") 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 certifying completion of the Safety Orientation prior to entering upon
the Premises. Licensee must renew (and ensure that its contractors, agenls or invitees, as applicable,
renew) the Safety Orientation annually.
16.3 Licensee shall obtain on or before the date it or its contractor enters the Premises, any and all additional
rights-of way, easements, licenses and other agreements relating to the grant of rights and interests in
and/or access to the Premises (collectively, the "Rights") and such other rights, licenses, permits,
authorizations, and approvals (including without limitation, any necessary local, state, federal or tribal
authorizations and environmental permits) that are necessary in order to permit Licensee to construct,
maintain, own and operate the Electric Supply Line and otherwise to perform its obligations hereunder in
accordance with the terms and conditions hereof.
I Form 421; Rev 20200605
Tracking fr21W-11466
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 andlor 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 lor 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 refened to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by
Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
17 -2 Licensee covenants that it will not handle or transport 'hazardous waste" or "hazardous substances", as
"hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,
or local govemmental agency or body on the Premises. Licensee agrees periodically to fumish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with lhe provisions of this Sectlon 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at [phone]
of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation of
Environmental Laws, or (iii) inspection or inquiry by governmental authorities charged with enforcing
Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on, from, or affecting the Premises. Licensee also shall give Licensor
immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to
or othenrrise cure such release or violation.
17.4 lf Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occurred or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or
Licensor's right-of-way.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known
to Licensee which create a risk of harm to persons, property or the environment and shall take whatever
action is necessary to prevent injury to persons, property, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request
for information regarding said conditions or activities.
DISCLAIMER OF WARRANTIES
18. No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THIS
LIGENSE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPUED WARRANTIES, NOW OR
IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WATVES ANYAND ALL
10 Form421; Rev.20200605
19.
Tracking #21W-11466
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST
BY OPERANON OF LAW OR IN EQUITY, INCLUDING, WTHOUT LIMITATION, ANY WARRANW OF
MERCHANTABILIW, HABITABIUW OR FITNESS FOR A PARTICU1AR PURPOSE.
18.2 LICENSOR MAKES NO WARRANW, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
oR |MPLTED, CONCERNING (A) THE SCOPE OF THE LICENSE OR OTHER RTGHTS GRANTED
HEREUNDER TO LICENSEE OR (B) WIIETHER OR NOT LTCENSEE'S CONSTRUCTTON,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WLL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY
THIRD PARW.
Disclaimer of Warrantv for Quiet Eniovment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES
NOR UNDERTAKE TO DEFEND LICENSEE IN 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 Charges. Licensee shall promptly pay and discharge any and all liens arising out of any construction,
alterations or repairs done, suffered or permitted to be done by Licensee on the Premises. Licensor is hereby
authorized to post any notices or take any other action upon or with respect to the Premises that is or may be
permitted by law to prevent the attachment of any such liens to the Premises; provided, however, that failure of
Licensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 21 or any
other Section of this License.
Taxes. Licensee shall pay when due any taxes, assessments or other chargas (collectively, 'Taxes") levled or
assessed by any govemmental or quasi-govemmental body upon the Electric Supply Line or any other
lmprovements conslructed 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 thp lmprovements.
DEFAULT. TERMINATION. AND SURRENDER
Default and Termination. ln addition to and not in limitation of Licensor's right to terminate for failure to provide
evidence of insurance as required pursuant to the terms of Section f 5, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminale as set forth below:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thirty (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Sectlon 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Lbensor 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 Ucensee not comply fully with the obligations of Section 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving five (5) days'notice of termination
upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this
License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability
20
21
22.
23
- 11-Form 421; Rev.20200G05
Tracking #21W-11466
to enforce any Section of this License. The remedies set forth in this Section 23 shall be in addition to,
and not in limitation ol any other remedies that Licensor may have at law or in equity.
23.4 ln addition to and not in limitation of Licensor's rights to terminate this License for failure to provide evidence
of insurance or occurrence of defaults as described above, this License may be terminated by either party,
at any time, by serving thirty (30) days' written notice of termination upon the other party. Such termination
shall not release either party hereto from any liability or obligation under the License, whether of indemnity
or otherwise, resulting ftom 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 thereto, or, at the sole discretion of Licensor, appropriately decommission the
Electric Supply Line with a method satisfactory to Licensor;
24.1 .2 reporl and restore any damage to the Premises or Licensor's other property arising from, growing
out of, or connected with Licensee's use of the Premises;
24.1 .3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date or as
otherwise agreed to by Licensor.
24.2 Upon any expiration or termination of this License, if Licensee fails to surrender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration 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 surenders 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 ils eleclion, either: (i) remove the Electric Supply Line and
the other lmprovements or otherwise restore the Premises, and in such event Licensee shall, within thirty
(30) days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notice to
Licensee, take and hold the Electric Supply Line and the other lmprovements and personal property as its
sole property, without payment or obligation to Licensee therefor, or (iii) specifically enforce Licensee's
obligation to restore and/or pursue any remedy at law or in equity against Licensee for failure to so restore.
Further, if Licensor has consented to the Electric Supply Line and the other lmprovements remaining on
the Premises following termination, Licensee shall, upon request by Licensor, provide a bill of sale in a form
acceptable to Licensor conveying the Electric Supply Line and the other lmprovements to Licensor for no
additional consideration.
MISCELLANEOUS
Successors and Assiqns. 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.
25.
- 12-Form 421; Rev. 20200605
Tracking #21W-11466
26. Assionment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this Licens€ or any right, obligation, or interest
herein (either voluntarily or by operation of law, merger, or otherwise) without the prior writlen consent of
Licensor, which consent may not be unreasonably withheld or delayed by Licensor, Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of the equity
interests of Licensee following which the equity interest holders of Licensee immediately prior to such sale
own, directly or indirectly, less than 50o/o of the combined voting power of the outstanding voting equig
interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization,
recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
or indirectly, at least 50% of the combined voting power of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization, recapitalizalion, merger
or consolidation shall nol 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 Sec'tion 26.1 above or anything contained in this License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purported Assignment') to another party (a 'Purported Transferee"),
the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this
License, including but not limited to the obligation to comply with the provisions of Section 15 above
concerning insurance requirements. ln addition to and not in limitation of the foregoing, Licensee, for itself,
its successors and assigns, shall indemnifiT, defend and hold harmless Licensor for all Liabilities of any
nature, kind or description of any person or entity directly or indirectly arising out of, resulting from or related
to (in whole or in part) a Purported Assignment. The provisions of this Sectlon 26.3 shall survive the
expiration or earlier termination of this License.
26.4 Licensor shall have the right to transfer and assign, in whole or part, all of its rights and obligations under
this License, and upon any such transfer or assignment, Licensor shall be released from any further
obligations hereunder and Licensee agrees to look solely to the successor in interest of Licensor for the
performance of such obligations.
Notices. Any notice, invoice, or other writing reguired or permitted to be given hereunder by one party to the other
shall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed in
the United States mail, certified, return receipt requested, or(ii) deposited into the custody of a nationally recognized
ovemight delivery service, addressed to the party to be notified at the address for such party specified below, 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 -Form421: Rev 20200605
28.
Tracking Y21W-11466
with a copy to BNSF Railway Company
2650 Lou Menk Dr.
Fort Worth, TX 76131
Attn: Senior Manager Real Estate
lf to Licensee PacifiCorp
825 NE Multnomah Street, Suite 1700
Portland, OR 97232Attn: Scott Mease
Survival. Neither termination nor expiration will release either party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date when the Electric Supply Line and the other lmprovements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
Aoplicable Law. All questions conceming 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
matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the
parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended
to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in
any prior written agreement between the parties.
Joint and Several Liabilitv. lf Licensee consists of two or more parlies, all the covenants and agreemenls of
Licensee herein contained shall be the joint and several covenants and agreements of such parties.
Waiver. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right
of Licensor to enforce that provision for any subsequent breach thereof.
lnteroretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based
upon the source of the draftsmanship; both parties hereby agree that this License shall not be subject to
the principle that a contract would be construed against the party which drafted the same. Article titles,
headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of
reference only and are not intended to be a part or to affect the meaning or interpretation hereof. The
exhibit or exhibits referred to herein shall be construed with and as an integral part of this License to the
same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by 'Without limitation"
whether or not they are in fact followed by such words or words of like imporq '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
29.
30,
31.
32
33.
34.
35.
-14-Form421; Rev.20200805
Tracklng #21W-11466
versa; and references to this Lbense or other documents are as amended, modified or supplemented from
time to time.
36.Countemarts. This License may be executed in multiple counterparts, each of wfrich shall, for all purposes, be
deemed an original but which together shall constifute one and the same lnstrument, and he slgnature pages from
any counterpart may be appended to any other counterpart to assemble fully executed documents, and cornterparts
of this License may also be exchanged electronically and any electronic version of any party's signature shall be
deemed to be an original signature for all purposes.
37 Licenso/s Reoresentative. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF Railway
Company.
END OF PAGE. SIGNATURE PAGE FOLLOUI'S
- 15.Form 421; Rov.20200605
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EXISTING ELECTRIC BY
UNKNOWN AGREEMENT
DESCRIPTION OF WRES OVER TRACK
WRES LOCATEDAS SHOWN EOLD
TYPE
ELECTRTC (EX|STTNG) /
NEUTRAL (NEW)
NUMBER
3t1
VOLTAGE
t2 kv
DISTANCE ABOVE
TOP OF RAIL
CLEARS RAILWAY
COMPANY'S WRES
KLAMATH FALLS
COUNry OF KLAMATH BAL
105.
STATE OF OR
32'.
DRAWNG NO.82391
ATTACHMENT B
PacifiCorp Notice of Affiliate Transaction
to
JtL Jones Lang laSalle Brokerage, lnc.
42(X) Buckingham Rd., Suib 110
Fon Worth, Texas 76155
tcl +1 817-23tr2600, fax +f 817 3)ffi265
2lw-l1468
Febnrary 16,2022
PacifiCorp
Attention: Mr. Scott Mease
825 NE Multnomah Steet, Suite 1700
Portland, OR 97232
Dear Mr. Mease:
Enclosed please fiod one (l) fully exeouted Electric License Agreernent. A copy of the executed agreement must
be available utrxln request at the job site as authorization to do the work. Please contad BN,SF's Schedaling
Agent d wilsoncomoanv.utilin iddnoilsoncacom or 81G556-3624 al leastfifieen (15) days in advance of cnby
andBEFORE yOUDIG, CALL (N0) 5ii-2891 (optbnT).
Licensee must ensure that each of its employeeg contractors, agents or invitees entering upon the premises
completes the safety orientation program at the website www.BNSFcontractor.com prior to entering upon the
premises. The certification is good for one year, and each person ent€rin,g the prernises rnust possess the card
certi$ing completion.
No encmachment above, below or on BNSF Right-of-Way will be allowed without the presence of an Inspector
Coordinator and Flagmar- You must contact BNSF's Scheduling Agort to arrange for those serrrices. The
scheduling age,rrt may be contacted atwilsoncomnan)'.utili}".icki:wilsonco.com or 816-55G3624. Ttreinstallation
conmctor must comply with all applicable sections of this agre€m€,nt, including the requiremeats of section 16
regarding safety requirements prior to encroaching on BNSF Rigbt-of-Way. The installation contractor must
present and maintain a copy of the executed agreement on site for the duration of the installation activities.
Please note that I copy of the executed agreement must be available upon request at job sit{s) allowing
authorization to do the work.
If you need additional information, please contact me at [phone].
Sincercly,
Krh*
Katie Robles
ManagerPermits
Enclosure
w i I s o n c ompan t'. u ti li n. i ctt!, wils o n c o. com
Glenn Monti - BNSF Roadmaster- [e-mail]
Nensi Patel - BNSF Engineer - Ne,[e-mail]
cc
2.
3.
Tracking tr21W-11468
(Elecric Light, Power Supply, lrrespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective February 23?d, 2022 (lhe
"Effective 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 slrict accordance
with ttre drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawings
and Specificatlons"), 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 Llne'), across
or along Licensor's rail corridor at or near the station of Klamath Falls, County of Klamath, State of Oregon, Line
Segment 0055, Mile Post 9.57 as shown on the attached Drawing No. 82393, dated November 11, 2021, attached
hereto as g[lblt "A'and incorporated herein by reference (the "Premises").
Term. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
Existino lmorovements. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
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 telecommunlcation facilities or equipment
within the Premises or using or allowing the use of the Premises for any other purpose,
Alterations. Except as set forth in this License, Licensee may not make any alterations to the Premises or
permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without
Licensor's prior written consent.
COMPENSATION
License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Three Thousand Seven Hundred
and No/100 Dollars ($3,700.00) as compensation for the use of the Premises.
7. Costs and Expenses.
7.1 For the purpose of this License, "Gosl" or "costs" and "expense" or "expenses" includes, but is not limited
to, actual labor and material costs including all assignable additives, and material and supply costs at
current value where used.
Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs and
expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence,
construction and maintenance of the Electric Supply Line, including but not limited to the furnishing of
Licensor's flaggers and any vehicle rental costs incurred, inspection coordination, safety, mobilization
and/or other observation services described in this License (collectively, the 'Servlces"). Licensee shall
bear the cost of the Services when deemed necessary by Licensor's representative. Flagging costs shall
4
5.
6
7.2
Form 421; Rev. 20200605
8.
Tracking #21W-11468
include, but not be limited to, the following: pay for at least an eight (8) hour basic day with time and one-
half or double time for overtime, rest days and holidays (as applicable); vacation allowance; paid holidays
(as applicable); railway and unemployment insurance; public liability and property damage insurance;
health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for railway labor
or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may
increase flagging rates. Flagging rates in effect at the time of performance by the flaggers will be used to
calculate the flagging costs pursuant to this Section 7.
7.3 Licensor, at its sole discretion, may elect to designate a third party (the "Scheduling Agent"), to perform
and/or arrange for the performance of the Services.
Pavment Terms. All invoices are due thirty (30)days after the date of invoice. lf Licensee fails to pay any monies
due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sum
ftom the due date until paid at an annual rate equalto 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, modifu 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 Section 4 above.
Rioht to Require Relocation. if at any time during the term of this License, Licensor desires the use of its rail corridor
in such a manneras 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 lhe sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the Electric Supply
Line, or the construction of a new electric line to replace the Electric Supply Line. Notwithstanding the foregoing,
Licensee agrees to make all emergency changes and minor adjustments, as determined by Licensor in its sole
discretion, to the Electric Supply Line promptly upon Licensor's request.
LICENSEES OPERATIONS
1'|.. Construction and Maintenance of the Electric Suoolv Line.
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by Licensor's
representative, the Scheduling Agent or its designee. Licensee shall notify Licensor's Roadmaster, Glenn
Monti at [e-mail], telephone 541€80-5639, at least ten (10) business days prior to
installation of the Electric Supply Line and prior to entering the Premises for any subsequent maintenance
lhereon. ln the event of emergency, Licensee shall notify Licensor of Licensee's entry onto the Premises
at the telephone number above as soon as practicable and shall promptly thereafter follow up with written
notice of such entry.
9.
9.2
9.3
10.
2 Form 421; Rev 20200605
Tracking #21W-11468
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 ftom one side of Licensor's tracks
to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the Premises on
behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
11.5 Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity
using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee
has obtained prior written approval ftom Licensor. Licensee shall, at its sole cost and expense, perform all
activities on and about the Premises, including without limitation all construction and maintenance of the
Electric Supply Line, in such a manner and of such materials as not at any time to endanger or interfere
with (i) the existence or use of present or tuture 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 lhe 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 Une in such a
manner and of such material that the Electric Supply Line will not at any time endanger or interfere with (i)
the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe operation
and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. The
construction of the Electric Supply Line shall be completed within one (1) year of the Effective Date, and
any subsequent maintenance shall be completed within one (1) year of initiation. Within flfteen (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, reslore 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 to Licensor pursuant to the terms and conditions sel forth in Section
24 hereof.
11.7 Licensor may direct one or more of its field engineers or inspectors to observe or inspect the construction
and/or maintenance of the Electric Supply Line at any time for compliance with the Drawings and
Specifications and Legal Requirements (defined below). Licensee shall reimburse Licensor for the cost of
such observation or inspection related services pursuant to Section 8. lf ordered at any time to halt
construction or maintenance of the Electric Supply Line by Licensor's personnel due to non-compliance
with the Drawings and Specifications or any other hazardous condition, Licensee shall immediately do so.
Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to
observe or inspect, or to halt work on, the Electric Supply Line, it being solely Licensee's responsibility to
ensure that the Electric Supply Line is constructed and maintained in strict accordance with the Drawings
and Specifications and in a safe and workmanlike manner in compliance with allterms hereol Neither the
exercise of, nor the failure by Licensor to exercise, any right granted by this Section will alter in any way
the liability allocation provided by this License. lf at any time Licensee shall, in the sole judgment of
Licensor, failto properly perform its obligations under this Sectlon 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 liabilig allocation hereunder,
3 Form421;Rev 20200605
Tracking *2'lW-11rcB
11.8 Licensee shall, at its sole cosl and expense, construct and at all times maintain the Electric Supply Line in
accordance with the National Electric Safety Code.
11.9 lf the operation or maintenance of the Electric Supply Line at any time causes interference, including but
not limited to physical interference from electromagnetic induction, electrostatic induction, or from stray or
other 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 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 Sec'tion 11.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licensor's operations as to require immediate conective action, Licensee, upon notice from Licensor, shall
either, at Licensor's election, cease using the Electric Supply Line for any purpose whatsoever and remove
same, or reduce the voltage or load on the Electric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, until the protective devices and/or roplacement equipment
required by this Section 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
requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incurred.
'12. Borinq and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any portion of the Premises,
Licensee shall contact the applicable State's call-before-you-dig utility location service to have 3d parties
mark the location of utilities. Licensee shall explore the proposed location for such work with hand tools to
a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other
structures exist below the surface, 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 Llcensor concerning the existence and approximate location of
Ucensor'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 vicinity of the proposed
Electric Supply Line and, if applicable, identify the location of such lines on the Premises pursuant to
Licensor's standard procedures. Licensor does not warrant the accuracy or completeness of information
relating to subsurface conditions of the Premises and Licensee's operations will be subject at all times to
the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil
investigation must be performed by Licensee and reviewed by Licensor prior to construction. This study is
to determine if granular material is present, and to prevent subsidence during the installation process. lf
the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor
may select a new location for Licensee's use, or may require Licensee to 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 thereof and hereof,
4 Form 42'l ; Rev. 20200605
12.3
LIABILITY AND INSURANCE
13. Liabilitv and lndemnification.
Tracking #21W-11468
Any open hole, boring, orwell constructed on the Premises by Licensee shall be safely covered and secured
at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings construcled 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 property 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)'lndemnlteee' means Licensor and Licenso/s afliliated companies,
partners, successors, assigns, legal representatives, officers, directors, shareholders, employees, and
agents;(b) "Liabilities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes
of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable
attomeys' fees, costs of investigation, removal and remediation, and govemmental oversight costs)
environmental or otherwise; and (c) "Llcenses Parties' means Licensee and Licensee's officers, agents,
invilees, licensees, employees, or contractors, or any party directly or indirectly employed by any of them,
or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW LICENSEE SHALL, AND SHALL CAUSE ITS
GONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDE'IINITEES FOR,
FROit, AND AGATNST ANY AND ALL LtABtLtTtES OF ANY NATURE, K!ND, OR DESCRTPTTON
DTRECTLY OR TNDTRECTLYAR|STNG OUT OF, RESULflNG FROM, OR RELATED TO (lN WHOLE OR
rN PART):
13.2.1 THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13,2.3 LICENSEE'S OCCUPATION AND USE OF THE PREi'ISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSEO BY OR
CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LIGENSEE 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 LIABILITY ACT, AS
AMENDED ("CERCLA") OR OTHER ENVTRONMENTAL LAWS (DEFINED BELOW). NOTHTNG tN
THIS LICENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO tsE A WAIVER OF ANY INDEMNITEE'S
COMMON CARRIER DEFENSES, LICENSEE AGREES TO INOEMNIFY, HOLD HAR]iiLESS, AND
DEFEND INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES
AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE ENVIRONMENTAL CONDITION OF THE PREMISES.
5 Fom 421', Rev. 20200605
14.
15.
Tracking #21W-l1468
13.4 IF ANY EMPLOYEE OF ANY UCENSEE 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 CONTRAGTOR TO, RELEASE, INDEUNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM AND AGATNST ANY LTABTLTflES AR|STNG OUT OF OR RELATED TO (rN WHOLE
oR tN PART) ANY SUCH ASSERTION INCLUDING, BUT NOT LIMITED TO, ASSERTTONS OF
EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWNG OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL EMPLOYERS. LIABILITY AGT, THE SAFETY APPLIANCE ACT, THE
LOCOMOTIVE INSPECTION ACT, T}IE OCCUPATIONAL SAFEW AND HEALTH ACT, THE
RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
't3.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES
ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WLLFUL MISCONDUCT OF ANY
INOEMNITEE, BUT SHALL APPLYTOALLOTHER LIABILMES, INCLUDING THOSEARISING FROM
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL AGTS, OR
STRICT LIABILITY OF ANY INDEi'NITEE.
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 lncident 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 iudgments.
Personal Prooertv Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEMNITEE WLL BE UABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE !N WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
hsurance, Licensee shall, at its sole cost and expense, procure and maintain during the term of this License the
following insurance coverage:
15.1 Commercial General Liabilitv'CGL' lnsurance.
a. The policy will provide a minimum of $2,000,000 per occurence and an aggregate limit of at least
$4,000,000 but in no event will the coverage be in an amount less than the amount otherwise canied
by Licensee. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent and
include coverage for, but not limited to, the following:. Bodily lnjury and Property Damage, Personal lnjury and Advertising lnjury. Fire legalliability. Products and completed operations
' Contractual Liabili$ for an "lnsured Contract" consistent with the definition under the standard ISO
general liability policy form.
b. This policy will include the following endorsements or language, which shall be indicated on or attached
to the certificate of insurance:, The definition of "lnsured Contract" will be amended to remove any exclusion or other limitation for
any work being done within 50 feet of Licenso/s property;r Waiver of subrogation in favor of and acceptable to Licensor;
' Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle
Brokerage, lnc.to include coverage for ongoing operations and completed operations;. Separation of insureds;. The policy shallbe primary and non-contributing with respect to any insurance canied by Licensor.
6 Form421: Rev.20200605
Tracking #21W-114ffi
c. The parties agree that the workers'compensation and employers' liability related exclusions in the CGL
policy(s) are intended to apply to employees of the policyholder and witl not apply to Licensor's
employees.
d. No other endorsemenls that limit coverage with respect lo Licensee's obligations under this agreement
may be included on the policy,
15.2 BusinessAutomobilelnsurance
The insurance will provide minimum coverage with a combined single limit of at least $1,000,000 per
accident, and include coverage for, but not limited to the following:. Bodily injury and property damage.t 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 canied by Licensor.
15.3 Workers' Comoensation and EmoloverslLiabilitv 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 a[ 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:r Waiver of subrogation in favor of and acceptable to Licensor.
15.4 Railroad Protective Liabilitv lnsurance. The policy will name only Licensor as the lnsured and will provide
coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The coverage obtained
under this policy shall only be effective during the initial installation and/or construction of the Electric Supply
Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COMPLETED WTHIN ONE
(1) YEAR OF THE EFFECTIVE DATE. lf further maintenane,e of the Electric Supply Line is needed at a
later date, an additional Railroad Protective Liability lnsurance Policy shall be required. The policy will be
issued on a standard ISO form CG 00 35 12 04 and include the following:. Endorsed to include the Pollution Exclusion Amendment.. Endorsed to include the Limited Seepage and Pollution Endorsement.. Endorsed to remove any exclusion for punitive damages.. Endorsed to include Evacuation Expense Coverage Endorsement., No other endorsements restricting coverage may be added.. The original policy must be provided lo 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, sQnals,
tunnels, bridges and buildings) arising out of the acts or omissions of the contractor named on the
Declarations."
Form 42'l; Rev. 20200605
Tracking #21W-11468
ln lieu of providing a Railroad Protective Liabilily Policy, for a period of one (1 ) year from the Effective Date,
Licensee may participate in Licensor's Blanket Railroad Protective Liability lnsurance Policy available to
Licensee or its contractor. The limits of coverage are the same as above. The cost is $506.00.
Licensee elects to participate in Licensor's Blanket Policy;
Licensee declines to participate in Licensor's Blanket Policy
15.5 OtherRequiremeQls:
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 priorwritten consent of Licensor. lf Licensor
allows Licensee to self-insure, Licensee shall directly cover any self-insured retention or other
financial responsibility for claims in lieu of insurance. Any and all Licensor liabilities that would
otherwise be covered by Licensee's insurance in accordance with the provisions of this agreement,
will be covered as if Licensee elected not to include a self-insured retention or other financial
responsibility for claims.
15.5.5 Prior to entering the Premises or commencing the services or work, Licensee shall furnish to
Licensor an acceptable certificate(s) of insurance from an authorized representative evidencing the
required coverage(s ), endorsements, and amendments,
15.5.6 Licensee shall notify BNSF in writing at least 30 days prior to any cancellation, non-renewal,
substitution or material alteration of any insurance requirement.
15.5.7 Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or
with a current Best's Guide Rating of A- and Class 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 maden 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 lo 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.
15.5.11 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modify
the insurance requirements to reflect the then+unent risk management practices in the railroad
industry and undenvriting practices in the insurance industry.
15.5.121f Licensee will subcontracl any portion of the operation, Licensee shall require that the
subcontractor provide and maintain insurance coverage(s) as set forth herein, naming Licensor as
H
tr
I Form 421; Rev. 20200605
Tracking #21W-11468
an additional insured. ln addition, Licensee shall require that the subcontractor shall release,
defend and indemnify Licensee to the same extenl and under the same terms and conditions as
Licensee is required to release, defend and indemnify Lic,ensor 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 this
section shall nol operale 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 this Agreement, Licensee will
make the policy covering such claims or lawsuits available to Licensor.
15.5.16 lf Licensee maintains broader coverage and/or higher limits than the minimum
requirements in this Agreement, Licensor requires and shall be entitled to the broader coverage
and/or the higher limits. Any available insurance proceeds in excess of the specified minimum
limits of insurance and coverage shall be available to Licensor.
15.5.17 These insurance provisions are intended to be a separate and distinct obligation on the part of the
Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby
regardless of whether or not indemnity provisions are delermined to be enforceable in the
jurisdiction in which the work or services performed under this License is performed.
15.5.18 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC", 'BNSF
Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WTH LAWS. REGULATIONS. AND ENVIRONMENTAL MATTERS
16. Comoliance with Laws. Rules. and Reoulations.
16.1 Licensee shallobserve and comply with any and all applicable federal, state, local and tribal laws, statutes,
regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction
('Legal Requlrements')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 safely rules and regulations. Licensee must ensure that each of its employees,
contractors, agents or invitees entering upon the Premises completes the safety orienlation program at the
Website'www.BNSFcontractor.com" (the 'Safety Orlentatlon") within one year prior to entering upon the
Premises. Additionally, Licensee must ensure that each and every employee of Licensee, its contractors,
agents and invitees possess a card certifying completion of the Safety Orientation prior to entering upon
the Premises. Licensee must renew (and ensure that its contractors, agents or invitees, as applicable,
renew) the Safety Orientation annually.
'16.3 Licensee shall obtain on or before the date it or its contractor enters the Premises, any and all additional
rights-of way, easements, licenses and other agreements relating to the grant of rights and interests in
and/or access to the Premises (collectively, the "Rights") and such other rights, licenses, permits,
authorizations, and approvals (including without limitation, any necessary local, state, federal or tribal
authorizations and environmental permits) that are necessary in order to permit Licensee to construct,
maintain, own and operate the Electric Supply Line and otherwise to perfom its obligations hereunder in
accordance with the terms and conditions hereof.
I Form 421; Rev 20200605
Tracking #21W-11468
16.4 Licensee shall either require that the inltial 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 lerms 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
othenryise 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.'l Licensee shall strictly comply with all federal, state and local environmental Legal Requirements and
regulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery
Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials
Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by
Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
17.2 Licensee covenants that it will not handle or transport "hazardous wasle" or "hazardous substanc€s", as
"hazardous wasle" and "hazardous substances" 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 furnish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2.
17.3 Licensee shallgive Licensor immediate notice to Licensor's Resource Operations Center at [phone]
of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation of
Environmental Laws, or (iii) inspeclion or inquiry by govemmental authorities charged with enforcing
Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to
promptly respond to any release on, from, or affecting the Premises. Licensee also shall give Licensor
immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to
or otherwise cure such release or violation.
17.4 lf Licensor has notice from Licensee or othenrise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occurred or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or othenrise cure such release or violation affecting the Premises or
Lioensor's right-of-waY.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known
to Licensee which create a risk of harm to persons, properg or the environment and shall take whatever
action is necessary to prevent injury to persons, property, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request
for information regarding said conditions or activities.
OISCLATMER OF WARRANTIES
18. No Warranties.
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
18.1
- 10.Form 421; Rev. 20200605
Tracking #21W-114ffi
WARRANNES, EXPRESS OR IMPLIED, WTH RESPECT TO THE PREMISES OR WHICH MAY EXIST
BY OPERATION OF I.AW OR !N EQUITY, INCLUDING, WTHOUT LIMITANON, ANY WARRANW OF
MERCHANTABILIW, HABITABILIW OR FITNESS FOR A PARTICUI.AR PURPOSE.
18.2 LICENSOR MAKES NO WARRANW, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS
oR IMPLIED, CONCERNING (A) THE SCOPE OF THE LTCENSE OR OTHER RTGHTS GRANTED
HEREUNDER TO LTCENSEE OR (B) WHETHER OR NOT LTCENSEE'S GONSTRUGT|ON,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WLL
VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, W|THOUT LIMITANON, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OFANY
THIRD PARTY.
19.Disclaimer of Wanantv for Quiet Eniovment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISES
NOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NO
COVENANT OF QUIET ENJOYMENT IS MADE.
Eviction at Risk of Licensee. ln case of the eviction of Licensee by anyone owning, elaiming title to, or claiming any
interest in the Premises, or by the abandonment by Licensor of the affecled rail corridor, Licensor shall not be liable
(i) to refund Llcensee 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, horever, 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-govemmental 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 Terminalion. ln addition to and not in limitation of Licensor's right to terminate for failure to provide
evidence of insurance as required pursuant to the terms of Section 15, the following events are also deemed to be
events of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 lf default shall be made in any of Licensee's covenants, agreements, or obligations contained in this License
and Licensee fails to cure said default within thirty (30) days after written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Section 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in wriling upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting
of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving five (5) days'notice of termination
upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this
License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability
20.
21
22.
23.
- 11-Form 421: Rev. 20200605
Tracking Y21W-11468
to enforce any Section of this License. The remedies set forth in this Section 23 shall be in addition to,
and not in limitation of, any other remedies that Licensor may have at law or in equity.
23.4 ln addition to and not in limitation of Licensor's rights to terminate this License for failure to provide evidence
of insurance or occurrence of defaults as described above, this License may be terminated by either party,
at any time, by serving thirty (30) days' written notice of termination upon the other party. Such termination
shall not release either parg hereto from any liabilily or obligation under the License, whether of indemnity
or olherwise, resulting from any acts, omissions or events happening prior to the date of termination or
thereafter in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost and
expense:
24.1.1 if so directed by Licensor in writing, remove the lmprovements, the Electric Supply Line and all
appurtenances thereto, or, at the sole discretion of Licensor, appropriately decommission the
Electric Supply Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premises or Licensor's other property arising from, growing
out of, or connected with Licensee's use of the Premises;
24.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date or as
othemise agreed to by Licensor.
24.2 Upon any expiration or lermination of this License, if Licensee fails to surrender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the 'Restoration Obligations"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee
to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall
continue in effect until the Premises are sunendered and the Restoration Obligations are completed.
Neither termination nor expiration shall release Licensee from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date
of termination, or, if later, the date when Licensee 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 otherwise restore the Prernises, and in such event Licensee shall, within thirty
(30) days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notice to
Licensee, take and hold the Electric Supply Line and the other lmprovements and personal property as its
sole property, without payment or obligation to Licensee therefor, or (iii) specifically enforce Licensee's
obligation to restore and/or pursue any remedy at law or in equity against Licensee for failure to so restore.
Further, if Licensor has consented to the Electric Supply Line and the other lmprovements remaining on
the Premises following termination, Licensee shall, upon request by Licensor, provide a bill of sale in a form
acceptable to Licensor conveying the Electric Supply Line and the other lmprovements to Licensor for no
additional consideration.
MISCELl*ANEOUS
25. Successors and Assiqns. All provisions contained in this License shall be binding upon, inure to the benefit of, and
be enforceable by the respective successors and assigns of Licensor and Licensee to the same extent as if each
such successor and assign was named a party to this License.
-12-Form 421; Rev. 20200605
Tracking #21W-11468
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 otherwise) without the prior written consent of
Licensor, wtrich consent may not be unreasonably withheld or delayed by Licensor. Any attempted
assignment by Licensee in violation of this Section 26 shall be a breach of lhis 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 wtrich the equity interest holders of Licensee immediately prior to such sale
own, directly or indirectly, less than 5O% 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 consolidalion involving Licensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
or indirectly, at least 50% of the combined voting power of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE LAND
WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Sectlon 26.1 above or anything contained in this License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a 'Purported Assignment') to another party (a "Purported Transferee"),
the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this
License, including but not limited to lhe 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 its rights and obligations under
this License, and upon any such transfer or assignment, Licensor shall be released from any further
obligations hereunder and Licensee agrees to look solely to the successor in interest of Licensor for the
performance of such obligations.
27 Notices. Any notice, invoice, or olher 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, retum receipt requested, or (ii) deposited into the custody of a nationally recognized
ovemight delivery service, addressed to the party to be notified at the address for such party specified below, 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
13-Form 421; Rev. 20200605
28.
29.
30.
31.
33.
u.
35.
32
Tracking #21W-11468
with a copy to BNSF Railway Company
2650 Lou Menk Dr.
Fort Worth, TX 76131
Attn; Senior Manager Real Estate
lf to Licensee:PacifiCorp
825 NE Multnomah Street, Suite 1700
Portland, OR 97232Attn: Scott Mease
Survival. Neither terminalion nor expiration will release either party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, lhe 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 invalidale 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 ali other agreements between the
parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended
to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in
any prior written agreement between the parties.
Joint and Several Liabilitv. lf Licensee consists of two or more parties, all the covenants and agreements of
Licensee herein contained shall be the joint and several covenants and agreements of such parties.
Waiver. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the right
of Licensor to enforce that provision for any subsequent breach thereof.
lnteroretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based
upon the source of the draftsmanship; both parties hereby agree thal this License shall not be subject to
the principle that a contract would be construed against the party whict drafted the same. Article titles,
headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of
reference only and are not intended to be a part or to affect the meaning or interpretation hereof. The
exhibit or exhibits referred to herein shall be construed with and as an integral parl 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 \rvithout limitation'
whether or not they are in fact followed by such words or words of like import; 'wriling", "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 altachment 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
14 Form 421; Rev. 20200605
36.
37
Tracklng #21W-11468
versa; and references to this License or other documents are as amended, modified or supplemented from
time to time.
Counterparts. This License may be executed in multiple counterparts, each of wtrich shall, for all purposes, be
deemed an original but which together shall constitute one and the same instrument, and the signature pages fiom
any counterpart may be appended to any other counterpart to assemble fully executed documents, and counlerparts
of this License may also be exchanged electronically and any electronic versbn of any party's signature shall be
deemed to be an original signature for all purposes.
Licenso/s Reoresentative. Jones Lang LaSalle Brokerage, lnc. is acting as representative for BNSF Railway
Company.
END OF PAGE - SIGNATURE PAGE FOLLOWS
- 15-Form 421; Rev.20200505
TraddrqPlW-l144
Thb Lioeme hs bem duf erecubd by thc pado hcr$ a of the Eftcilve Date.
IJGSSOR:
BiIBF RJIW Gomp{ry, a lhhmrc oorpomton
ry JmesLengh8allaBokcrqs,lnc.
42m Bd*tg[un Road, Sttu 110
FoilVlloill, D( 70156
q,:
UF|EE:
P.cmGolp, an orqon eopontbn
ry DeannaAdamsXH#.?FS
q,: toemaAdmt!
Tilc: g56sbr, Rcd Ertab ltaragortont
- t6-Fom42t;Rlv.2fiIlffi
COORDINATE SYSTEM: OR S TRACKING NO. 21W-11468
(ot(oll.)INIEl
LL
l,,tJE(L
=
EXHIBIT T'A]I
E:1 lN = 100 FT SECTION:
DIV TO\itNSHlP & RANGE:
BDIV.
S. 0055 MP: 9.57 MERIDIAN:
E:1111112021
mP" g.5Z
12,@7168,112L 863828
N
A
A
32'
!E
6ti
t
Sourde Esri. Maxar. GeoE
usEAtiuscs AeroGdrer
ye,ES/Airbus DS,
IGN.rhe GtS
EXISTING ETECTRIC
LINES & POLE BY TOTAL LENGTH ON ROW: 190'
AGREEMENT UNKNOWN
DESCRIPTION OF WIRES OVERTRACK
WRES LOCATEDAS SHOWN BOLD
WPE
ELECTRTC (EXTSTTNG)
NEUTRAL (NEW)
NUMBER
- 311
VOLTAGE
't2 kv
DISTANCE ABOVE
TOP OF RAIL
CLEARS RAITWAY
COMPANY'S WRES
KI.AMATH FALLS
COUNTY OF KLAMATH BAL
I\
STATE OF OR
u.17'
DRAWNG NO.82393
ATTACHMENT C
PacifiCorp Notice of Affiliate Transaction
to
DoorSlgn Env"elope lDl. A275FB*210-{6E7€E7E-1 Di EAFDC0954
JLt Jorns lang taSalle Brckerage, lnc.
4200 BucldrBham Rd., Sulb 110
FortWor$, Texas 761$
tol +1 817-23G26(n, b:r+'l 817 30S8265
2tw-12340
April12,2022
ROCKY MOI,JNTAIN POWER
Atteirtion: Mr. Dan Forbes
1407 W. North Temple
SaltLake,Lff E4l16
Dear Mr. Forbes:
Enclosed please find one (1) fully executcd Electric License Agreemeirt. A copy of the executed agreement must
be available upon request at the job site as authorization to do the wo*. Pleasc conttc"t BiV^SF's Sche&tlhg
Agent d wilsoncomoanv.utilitv.ic{dtvilsonco.com or E1G55G3621 st letstfrfrezn (15) days in dvance of enty
ond BEFORE YOA DIG, CALL $W) 533-2E91 (oprbn 7).
Licensee must €osure that each of its employees, contactors, 49@6 or invitees entering rryon the pr€,mises
complAes the safety orientation program at fre website www.BNsFcontractor.com pnor to eirtering upm the
premises. The certification is good for one year, and each person entering the prernises must possess the card
certiffing cornpletion.
No e,ncroachme,lrt above, below or on BNSF Right-of-Way will be allowed without the presence sf an Inspector
Coordinator and Flagman. You must contact BNSF's Scheduling Agent to arrange for those services. The
scheduling agent maybe contacted at [e-mail] or 81G55G3624. The insbllation
contractor must coryly with all applicable sections of this agrc€,mmt, including the requiremen6 of section 16
regarding safety requirements prior to encnoaching on BNSF Right-of-Way. The installation confiactor must
present and maintain a copy of the exesuted agree,meirt on site for the duration of the installation activities.
Please note that a copy of the executed agreeme,nt must be available upon rcquest at job srt{s) allowing
authorization to do the work.
Ifyou need additional information, please contact me at [phone].
Sincerely,
MelissaWoodrutr
ManagerPermits
Enclosure
wi ls o ncomparyt. utilitv. ic@ wils onco. com
daniel.hyatt@bnsf , com -
Bnsf.info@ailpros. com
cc:
DocuSign En\r€lope lD: A275F338-221O46E7 AETE-1 D1 EAFDCO9A|
Tracking Y21W-1234;0
LICENSE FOR ELECTRIC SUPPLY LINE
ACROSS ORALONG RAILWAY PROPERTY
(Electric Light, Power Supply, lnesp€c'tive of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ('Llcense") is made to be efiective April 29, 2022 (lhe 'Efiectlve
Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Llcensot') and ROGI(Y ilOUNTAIN
POWER, ("Llcensee').
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, uso righb, easements, Iiens, or other
encumbrances, and upon the terms and conditions set forth belor, to construct and maintrain, in strict accordance
with the drawings and specffications appoved by Licensor as part of Licensee's application pr,cess (the 'Drawlngs
and Speclfications"), an electric supply line containing a maximum of three (3) conductors, together with its
supporting or oontaining structures (collectively, the'Electric Supply Llne"), across or along Licenso/s rail conidor
at or near the station of Glenrock, County of Converse, Stiate of VW, Line Segment 0005, Mile Post 174.20 as
shown on the attached Drawing No. 83254, dated November 13, 2021, attached hereto as !4[!!!!.f, and
incorporated herein by reference (the'Promlses").
Term. This License shall commenoe on the Effective Date and shall continue br a period of twenty-five (25) years,
subject to prior termination as hereinafter described.
Existinq lmprovementrs. Licensee shall not disturb any improvementrs of Licensor or Licenso/s existing less€es,
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 construc-tion, 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 ftom using or alloring 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, Li@nsee may not make any alterations to the Premises or
permanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without
Licenso/s prior written consent.
COTPENSATION
License F6e. Licensee shall pay Licensor, prior to the Eftctive Date, the sum of Three Thousand Seven Hundred
and Twenty Three and No/100 Dollars ($3,723) as compensation forthe use of the Premises.
Costs and Exoenses.
7.1 For the putpose of this Licanse, "cosf or'costs" and "expense" or 'expenses" includes, but is not limited
to, actual labor and material costs including all assignable additives, and material and supply osts at
curent valua where used.
Licensee agrees to reimburse Licensor (pursuant to the terms of Sectlon 8 below) fur all costs and
expenses incurred by Licensor in connection with Licensee's use of the Premises or the pr€senoe,
construction and maintenance of the Electric Supply Line, including but not limited to the fumishing of
Licensofs flaggers and any vehicle rental cosb incuned, inspection coordination, safety, mobilization
and/or other observation services described in this License (collectively, the 'Servlces"). Licensee shall
bear the cost of the Services when deemed necessary by Licenso/s representative. Flagging costs shall
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include, but not be limited to, the following: pay for at least an 6ight (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 wetfure benefits; transportation; meals; lodging and supervision. Negotiations for railway labor
or collective bargaining agreements and rate changes authorized by apprcpriate 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 mts pursuant to this Sectlon 7.
7.3 Licensor, at its sole discretion, may elect to designate a third party (the "Schedullng 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 afier the invoice date, then Licensee shall pay interest on such unpaid sum
from the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
SlrcetJoumal in the preceding Decemberplustwoand one-half perent(Z-1Do/o), or(ii)the maximum rate permitted
by law.
LICENSOR'S RESERVED RIGHTS
Reserved Rights of Use. Licensor excepts and reserves the right, to be exercised by Licensor and any other parties
who may obtain written permission or authodty fom 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 Prcmises existing as of the Effective Date;
to construct, maintiain, renew, use, operate, change, modrry 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 specifted in Section 4 above.
Right to Reouire Relocation. lf at any time during the term of this Licanse, Licensor desircs the use of its rail conidor
in such a manner as would, in Licenso/s reasonable opinion, be interfercd with by the Electric Supply Line, Licensee
shall, at its sole expense, within thirty (30) days after receiving wriften notice ftom Licensor to such effect, make
such changes in the Elec{ric Supply Line as in the sole discretion of Licensor may be necessary to avoid interference
with the proposed use of Licenso/s rail conidor, including, without limitation, the relocation of the Electric Supply
Line, or the construction of a new elec'tric line to replace the Electric Supply Line. Notwithstanding the foregoing,
Licensee agrces to make all emergency changes and minor adjustmentrs, as debrmined by Licensor in its sole
discretion, to the Elec'tric Supply Line promptly upon Licenso/s rcquest.
LICENSEE'S OPERATIONS
11. Construction and Maintenance of the Elec'tdc Suooly Line.
11.1 Licensee shall not enter the Premises or commenoe construction unless accompanied by Licensofs
representiative, the Scheduling Agent or its designee. Licensee shall notify Licenso/s Roadmaster,
[e-mail] or 307-331-2814, at least ten (10) business days priorto installation of the Elec{ric
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 Premisas at the telephone number
above as s(lon as practicable and shall promptly thereafter follow up with written notioe of such entry.
11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while
on the Premises.
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11.3 While on the Premises, Licensee shall use only public roadways to cross fiom one side of Licenso/s tracks
to the other.
'11.4 Any contractors or subcontractors performing work on the Elec'tric 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 shal! Licensee be permitted to conduct any tests, investigations or any other activity
using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other
materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee
has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all
activities on and about the Premises, including without limitation all construction and maintenance of the
Electric Supply Line, in such a manner and of such materials as not at any time to endanger or interfere
with (i) the existence or use of present or future tracks, roadbeds, or prcperty 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 Lienso/s personnel due to any hazardous condition,
Licensee shall immediately do so. Notwithstanding the bregoing right of Lioensor, the parties agree that
Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe naturc
thereof, it being solely Licensee's r€sponsibility to ensure that Licensee's use of the Premises is safe.
Neither the exercise nor the failure by Licensor to exercise any rightrs granted in this Section will alter the
liability allocation provided by this License.
11.6 Licensee shall, at itrs sole cost and expense, construct and maintain the Electric Supply Line in such a
manner and of such material that the Electric Supply Line will not at any time endanger or interfere with (i)
the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe operation
and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. The
construction of the Electric Supply Line shall be completed within one (1) year of the Efiactive Date, and
any subsequent maintenance shall be oompleted within one (1) year of initiation. Within ffieen (15) days
after completion of the construction of the Elechic Supply Line or the performance of any subsequent
maintenance thereon, Licensee shall, at Licensee's orn cost and expense, restore the Premises to
substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in
writing. On or before expiration or termination of this License br any reason, Licensee shall, at its sole cost
and expense, sunender the Premises to Licensor pursuant to the terms and conditions set forth in Sec'tion
24 hereof.
11.7 Licensor may direct one or more of its field engineers or inspectors to observe or inspect the construction
and/or maintenance of the Electric Supply Line at any time for compliance with the Drawings and
Specifications and Legal Requiremenb (defined below). Licensee shall reimburse Licensor fur the cost of
such observation or inspection related services pursuant to Section 8. lf ordered at any time to halt
construction or maintenance of the Electric Supply Line by Licenso/s personnel due to non-compliance
with the Dr:awings and Specifications or any other hazardous condition, Licensee shall immediately do so.
Notwithstanding the bregoing right of Licensor, the parties agree that Licensor has no duty or obligation to
observe or inspect, or to halt work on, the Elec'tric Supply Line, it being solely Licensee's responsibility to
ensure that the Electric Supply Line is construcled and maintained in strict accordance with the Drawings
and Specifications and in a safe and workmanlike manner in compliance with allterms hereof. Neither the
exercise 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
Li@nsor, fail to pmperly perform its obligations under this Sectlon 1{, Licensor may, at its option and at
Licensee's sole expense, arange br 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 Sectlon 8. Licenso/s failure to perform any obligations of Licensee shall
not alter the liability allocation hereunder.
11.8 Licensee shall, at its sole cost and expense, construc't and at all times maintain the Electric Supply Line in
accordance with the National Electric Safety Code.
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11.9 lf the operation or maintenanoe of the Electric Supply Line at any time causes interference, including but
not limited to physical interference from electromagnetic induction, electrostratic induc'tion, or fiom stray or
other cunenE, 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 rightof-way, tracks, structures, pole
lines, signal and communication lines, radio, or other equipment, devices, other property or appurtenances
thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and furnish such
protective devices and/or replacement equipment to Licensor and itrs lessees or licensees as shall be
neoessary, in the judgment of Licenso/s rcpresentiative, 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 ll.9 shall be, in the judgment of Licensor, of such importance to the safety of
Licenso/s operations as to require immediate conective action, Licensee, upon notice fiom Licensor, shall
either, at Licenso/s election, osase using the Electric Supply Line for any purpose whatsoever and remove
same, or reduce the voltage or load on the Electric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, until the protective devices and/or replacement equipment
required by this Section ll.9 have been installed, put in operation, tested, and found to be satisfactory to
conect the interfercnce.
12.
11.10 Licensee shall, at its sole cost and expense, remove allcombustible materialfrom around wooden poles
on the Premises, if any, and will at all times keep the spaca around such poles free of such material, and if
removal of such combustible material shall not be attended to with fifteen (15) days after having been
requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incurred.
Borino and Excavation.
12.1 Priorto Licensee conducting any boring, excavation, orsimilarworkon oraboutany portion of the Premises,
Licensee shall contact the applicable Stiate's call-bebre-youdig utility location service to have 3d parties
mark the location of utilities. Licensee shall explore the proposed location for such work with hand tools to
a depth of at least three (3) feet below the surfiace of the ground to determine whether pipelines or other
struc'tures eist below the surf;ace, ryiglg| !1Elrle149l, that in lieu of the foregoing hand-tool exploration,
Licensee shal! have the right to use suitable detection equipment or other generally aepted industry
practice (e.9., consulting with the Strate 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 ftom Licensor conceming the existence and approximate location of
LicensoCs underground lines, utilities, and pipelines at or near the vicinity of the proposed Electric Supply
Line by contacting Licenso/s Telecommunications Helpdesk, cunently at 1€00-533-2891 (option 1, then
option 7), at least ten (10) business days prior to installation of the Electric Supply Line. Upon receiving
Licensee's timely request, Licensorwill provide Licensee with the information Licensor has in its possession
regarding any existing underground lines, utilities, and pipelines at or near the vicinity of the proposed
Electric Supply Line and, if applicable, identiff the location of such lines on the Premises pursuant to
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 prcvisions herein.
12.2 For all boras greater than 2&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 prccess. lf
the investigation determines in Licenso/s reasonable opinion that granular material is present, Licensor
may select a new location for Licensee's use, or may require Licensee to fumish for Licensoi'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, @fly
out the approved plan in accordance with all terms thereof and hereof.
12.3 Any open hole, boring, orwell constructed on the Premises by Licensee shall be safely covered and secured
at alltimes when Licensee is not working in the actual vicinity thereof. Following completion of that portion
of the work, all holes or borings constructed on the Premises by Licensee shall be:
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12.3.1 filled in to sunounding ground levelwith compacted bentonite grout; or
12.3.2 otheruise secured or retired in accordance with any applicablo Legal Requirement. No excavated
materials may remain on Licenso/s property for more than ten (10) days, but must be propedy
disposed of by Licensee in accordance with applicable Legal Requirements.
LIABILITY AND INSU RAT{CE
13, Liabilitv and lndemnification.
13.1 For purposes of this License: (a) 'lndemnlteo8' means Licensor and Licenso/s afriliated companies,
partners, slJooessors, assigns, legal representatives, officers, directors, shareholders, employees, and
agents; (b) "Llabllities'means all claims, liabilities, fines, penalties, @sts, damages, losses, liens, causes
of action, suits, demands, judgments, and exponses (including, without limitation, court costs, reasonable
aftorneys' fees, costs of investigation, removal and remediation, and govemmental overcight costs)
environmental or othenrvise; and (c) "Llcensee Parties" m6ans Licensee and Licensee's officers, agentrs,
invitees, licensees, employees, or contrac{ors, or any party directly or indirectly employed by any of them,
or any party they conhol or exercise conhol over.
13.2 TO THE FULLEST ETTENT PERil|TTED BY lAW, LTCENSEE SHALL, AND SHALL CAUSE lTS
CONTRACTOR TO, RELEASE, INDETNIFY, DEFEilD AND HOLD HARTLESS INDETNITEES FOR,
FROil, AND AGATNST ANY AND ALL LIAB|LITIES OF ANY NATURE, K!ND, OR DESCRTPTTON
DTRECTLY OR INDIRECTLYAR|SII{G OUT OF, RESULTTNG FROit, OR REI-ATED TO (lN WHOLE OR
!N PART):
13,2.1 THIS LICENSE,INCLUDING, YYITHOUT LIMIATION, ]TS ENVIRONTEIIITAL PROVISIONS,
13.2.2 ANY RIGHTS OR IilTERESTS GRANTED PURSUANT TO THIS LIGENSE,
13.2.3 LICENSEE'S OGCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONTENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR
COT{TRIBUTED TO BY LICENSEE, OR
13.2,5 ANYACT OR OMISSION OF ANY LICENSEE PARW.
13.3 TO THE FULLEST EXTENT PER]IIITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, AND
WLL INDETNIFY, DEFEND, AND HOLD THE INDETNITEES HARIILESS FROiI ANY AND ALL
CLAIiIS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR IS A GENERATOR,
OYYIIIER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF THE
COTPREHENSIVE ENVIRON]UENTAL RESPONSE, COiiPENSATION, AND LIABILITY AGT, AS
AMENDED ("CERG!-A') OR OTHER EITIVIRONMENTAL 1AWS (DEFINED BELOYY). NOTHING lN
THIS LICENSE IS TEANT BY E]THER PARTY TO GONSTITUTE A WAIVER OF ANY INDETNITEE'S
COMMON GARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY
AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAVER OF ANY INDEMNITEE'S
COiITON GARRIER DEFENSES, LICENSEE AGREES TO INDETilIFY, HOLD HARTLESS, AND
DEFEND INDETNITEES FOR ANY LIABILMES RELATED TO THAT CONSTRUCTIOI{ OF THIS
LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES
AS CONTETPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR
THE ENVIRONMENTAL GONDMON OF THE PRETISES.
13.4 tF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE !S AN ETPLOYEE OF
ANY INDEMNITEE, TO THE FULLEST EXTENT PERMTTTED BY LAW LICEIIISEE SHALL, AND SHALL
CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDETNITEES
HARMLESS FROM AND AGATNST ANY LtABtLtTtES ARISING OUT OF OR RELATED TO 0N WHOLE
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oR tN PART) ANY SUCH ASSERTTON INCLUDTNG, BUT NOT LilritTED TO, ASSERTTONS OF
EMPLOYMENT BY AN INDETNITEE RELATED TO THE FOLLOWI{G OR ANY PROCEEDINGS
THEREUNDER: THE FEDERAL ETIPLOYERS' LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE
LOCOTOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE
RESOURCE GONSERVATION AND RECOVERY ACT, AND AITIY SITILAR STATE OR FEDERAL
STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE ETTENT LIABILITIES
ARE PROXIMATELY CAUSED BYTHE GROSS NEGLIGENCE ORWLLFUL TISCONDUCT OF ANY
INDEMNTEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROH
OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR
STRICT LlABlL]TY OF ANY INDEMNITEE.
13.6 Upon written notice from Licensor, Licansee agrcss to assume the defense of any lawsuit or other
procesding brought against any Indemnitee 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 defiense, including, but not limited to, reasonable
attomeys'fees, investigators'fees, litigation and appeal expenses, settlement paynents, and amounts paid
in satisfaction of judgments.
Personal Prooertu Riskof Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIillTED TO, FIXTURES,
EQUIPTIENT, OR RELATED MATERIALS UPON THE PREMISES WLL BE AT THE RISK OF LICENSEE ONLY,
AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER OR
NOT DUE I]II WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
15.lnsurance. Licensee shall, at its sole cost and expense, procure and maintiain during the term of this License the
following insurance coveraga:
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 will the coverage be in an amount less than the amount otherwise canied
by Licensee. Coverage must be purchased on a post 2004 ISO oocurenoe brm or equivalent and
include @verage fur, but not limited to, the bllowing:. Bodily lnjury and Property Damage. Personal lnjury and Advertising lnjury. Fire legal liability. Products and completed operations. Contractual Liability for an 'lnsurcd Contracf consistent with the definition under the standard ISO
general liability policy form.
b. This policy will include the following endorsements or language, which shall be indicated on or attached
to the certificate of insurance:. The definition of "lnsured Contracf will be amended to remove any exclusion or other limitation for
any wort being done within 50 feet of Licenso/s prop€rty;. Waiver of subrogation in favor of and acceptable to Licensor;, Additiona! insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalle
Brokerage, lnc.to include ooverage for ongoing operations and completed operations;. Separation of insureds;. The policy shall be primary and non-contributing with respec't to any insurance canied by Licensor.
c. The parties agree that the workers' compensation and employers' liability related exclusions in the CGL
poliry(s) are intended to apply to employees of the poliryholder and will not apply to Licenso/s
employees.
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d. No other endoraements that limit coverage with respect to Licensee's obligations under this agreement
may be included on the policy.
15.2 BusinessAutomobilelnsurance
a. The insurance wil! provide minimum ooverage with a combined single limit of at least $1,000,000 per
accident, and include coverage for, but not limited to the following:. Bodily injury and property damage.. Any and allvehicles owned, used or hired.
b. The policy will include the following endorsemenb or language, which will be indicated on or attiached
to the certfficate of insurance:. Waiver of subrogation in fuvor 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 insuranoe canied by Licensor.
15.3 Workers' Compensation and Emolovens' Liabilitv lnsurance
a. The policy will provide oovorago of all employees perbrming any part of the work or services
including @verage for, but not limited to:. Licensee's statutory liability underthe workers'oompensation laws of the state(s) in which the work
or services are to be performed. The policy will cover al! 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 blloring endorsemenE 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 Railrcad Protec{ive Liabilitv lnsurance. The policy will name only Licensor as the lnsured and will provide
ooverage of at least $2,000,000 psr oocurence and $6,000,000 in the aggregate. The cov6rag6 obtained
under this policy shall only be efiective during the initial installation and/or construction of the Electric Supply
Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COUPLETED WITHIN 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 35120/. and include the following:. Endorsed to include the Pollution Exclusion Amendment.. Endorsed to include the Limited Seepage and Pollution Endorsement.. Endorced to rsmove any exclusion fur punitive damages.. Endosed to include Evacuation Expense Coverage Endorsement.. No other endorsements restricting covomge may be added.. The original policy must be provided to Licensor and Licensee shall not perbrm any work or services
of any kind under this agreement until Licensor has reviewed and approved the policy.. The definition of 'Physical Damage to Prcpertyr will be endorsed to read: "means direc,t and accidental
loss of or damage to all prcperty owned by any named insured and all property in any named insurcd's
care, custody and control (including, but not limited to rclling stock and their contents, mechanical
construction equipment or motive pourer equipment, railroad tracks, roadbeds, catenaries, signals,
tunnels, bridges and buildings) arising out of the acts or omissions of the contractor named on the
Declarations."
In lieu of providing a Railnoad Protective Liability Policy, for a period of one (1) year from the Efiactive Date,
Licensee may participate in Licenso/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 $506.00.
7 F orffi 421 i, Rev. 202006(E
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Licensee elects to participate in Licenso/s Blanket Policy;
Licensee dectines to padicipate in Licenso/s Blanket Policy.
15.5 OtherReouirements:
15.5.1 Where allowable by law, no exclusion for punitive damages may be included in any policy.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against
Licensor. ln addition, Licensee's insur€rs, thrcugh the terms of the policy or poliry endorsement,
waive their right of subrogation against Licensor for all claims and suits. Licensee further waives
its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss
of Licensee's owned or leased proporty or prcperty under Licensee's care, custody, or control.
15.5.3 Allocated Loss Expense, including but not limited to defense costs and expenses, will be in addition
to all policy limits for ooverage under the insurance requirements.
15.5.4 Licensee is not allowed to self-insure without the prior written consent of Licensor. lf Licensor
allows Licensee to self-insure, Licensee shall direc'fly oover any self-insured retention or other
financial responsibili$ for claims in lieu of insurance. Any and all Licensor liabilities that would
otherwise be covercd by Licensee's insurance in accordance with the prcvisions of this agreement,
wil! 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 commendng the services or work, Licensee shall fumish to
Licensor an acceptable certificate(s) of insurance fiom an authorized representative evidencing the
req u i red coverage(s), endorsements, and amendmentrs.
15.5.6 Licensee shall notiff BNSF in writing at least 30 days prior to any cancallation, 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 Besfs 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 requircd by this agreement is purchased
on a 'claims made" basis, Licensee hereby agrees to maintain coverage in force for a minimum of
three years after expiration, cancellation or termination of this agreement.
15.5.9 Licensee agrees to ptovide evidence to Licensor that it has the required q)verage in place at least
annually or in the event of a reneural or material change of covenage.
15.5.10 Licensee representrs that this Licanse has been thoroughly reviewed by Licensee's insurance
agent(s/broker(s), and that Licensee has instructed them to procur€ the insurance oovemge
required by this License.
15.5.11 Not more ftequently than once every five years, Licensor may, at its discretion, reasonably modiff
the insurance requiremenb to reflect the then-cunent risk management prac{ices in the railroad
industry and undenrriting practices in the insurance industry.
15-5.121f Licensee will subcontract any portion of the operation, Licsnsee shall require that the
subcontrac'tor provide and maintiain insurance coverage(s) as set brth herein, naming Licensor as
an additional insured. ln addition, Licensee shall require that the subcontrac'tor shall release,
defend and indemnify Licensee to the same extent and under the same terms and conditions as
Licensee is required to release, defend and indemniff Licensor under this agreement.
x
o
-8-Form 421; Rev.20200605
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15.5.13 Failure to prcvide evidence as required by this soction shall entitle, but not requirc, Licensor to
terminate this License immediately. Acceptance of a ertificate that doos not comply with this
section shall not operate as a waiver of Liensee'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 limitiation, 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.
I 5.5.1 5 ln the event of a claim or lawsuit involving Licensor adsing out of this Agreement, Licensee will
make the policy covering such claims or lawsuits available to Licensor.
15.5.'16 lf Licensee maintains broader ooverage and/or higher limib than the minimum
requirements in this Agreement, Licensor requires and shall be entitled to the broader ooverage
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 distinc't obligation on the part of the
Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby
regadless of whether or not indemnity provisions are determined to be enforeable in the
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 Santia Fe, LLC','BNSF
Railway Companyl and the subsidiaries, sucoassors, assigns and affiliates of each.
COIPLIANCE wlTH LAWS. REGULATIONS. AND ENVIRONMENTAL TATTERS
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, @venants, restrictions, or decisions of any court of competent jurisdiction
('[ogal Requlremente') relating to the construction, maintenanos, and use of the Electric Supply Line and
the use of the Premises.
16-2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s) to comply with all of
Licenso/s applicable safety rules and regulations. Licensee must ensure that each of its employees,
contractors, agents or invitees entering upon the Premises completes the sabty orientation program at the
Website lmvw.BNsFontrac'tor.com' (the 'Safiety Orlentatlon") within one year prior to entering upon the
Premises. Additionally, Licensee must ensung that each and every employee of Licensee, ib contractors,
agents and invitees possess a card certifying completion of the Safety Orientation pdor to entering upon
the Premises. Licensee must renew (and ensure that its contmctors, agents or invitees, as applicable,
renew) the Safety Orientation annually.
16.3 Licensee shallobtain on or before the date it or its contrac{or enters the Premises, any and all additional
dghts-of way, easements, licenses and other agreements relating to the grant of rights and interests in
and/or aooess to the Promises (collec'tively, the 'Rlghts') and such other rights, licenses, p€mh,
authorizations, and apprcvals (including without limitation, any neoessary local, stiate, federal or tribal
authorizations and environmential permits) that arc neoessary in oder to permit Licensee to construct,
maintain, orn and operate the Electric Supply Line and otherwise to perbrm its obligations hereunder in
accordance with the terms and conditions hereof.
16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does not
expire, in accodance 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, Limnsee shall, at its cost, exercise any renewal rights thereunder, or
-9-Form421; Rev.20200605
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Tracking #2'|W-1234;O
othenrise acquire such ertensions, additions and/or replacoments as may be necessary, in order to caus6
the stated term thereof to be continued until a date hat 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 acmrdance with the terms and conditions of this License, this License
thereby shall automatically expire upon such expiration or termination of the Right.
17. Envimnmental.
17.1 Licensee shall strictly comply with all federal, state and local environmential 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 Ac't, the Oil Pollution Ac{, the Hazardous Materials
Transportation Act, and CERCLA (collectively refered to as the "Envlronmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground storage tiank, as defined by
Envircnmential Laws on the Premises. Licensee shall not release or sufrer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
17.2 Licensee covenanb that it will not handle or transport "hazardous waste" or'hazardous substances", as
'hazardous waste'and 'hazardous substiances" may now or in the future be defined by any federal, stiate,
or local govemmentral agency or body on the Premises. Licensee agrees pedodically to fumish Licensor
with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Sectlon 17.2.
17.3 Licensee shall give Licensor immediate notice to Licenso/s Resource Operations Center at [phone]
of any known (i) release of hazardous substances on, frrom, or affec'ting the Premises, (ii) violation of
Environmential Laws, or (iii) inspection or inquiry by govemmental authorities charged with enfurcing
Environmential Laws with rcspect to Licensee's use of the Premises. Licensee shall use the best efiorts to
promptly respond to any rolease on, from, or afiecting the Premises. Lioensee also shall give Licensor
immediate notice of all measures undertaken on behalf of Licensee to investigate, r€mediate, rcspond to
or otherwise cure such release or violation.
17.4 lf Licensor has notice ftom Licensee or otherwise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occunBd or may occur during the term of this
License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or othenrise cure such release or violation affec'ting the Premises or
Licenso/s right-of-way.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises knourn
to Licensee which create a risk of harm to p€rsons, proporty or the environment and shall take whatever
action is necessary to prevent injury to p€tsons, property, or the environment arising out of such conditions
or ac'tivities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any
obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licenso/s request
for inbrmation regarding said conditions or activities.
DISGLAITER OF WARRANTIES
18. NoWananties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LITITED TO THOSE EXPRESSLY STATED IN THIS
LIGENSE A]IID SHALL NOT INGLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES, NOW OR
IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES HAVE BEEN TADE BY LICENSOR
OTHER THAN THOSE CONTAINED IN THIS LICENSE. LICENSEE HEREBY WAIVES ANY Al{D ALL
WARRANTIES, EXPRESS OR ITPLIED, WTH RESPECT TO THE PRETISES OR WHIGH TAY EXIST
BY OPERATION OF LAW OR IN EQUTTY, INCLUDING, WITHOUT LIMITATION, ANY WARRANW OF
TERCHANTABILITY, HABITABILTY OR F]TNESS FOR A PARTICULAR PURPOSE.
-10-Form421; Rev.20200605
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18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR GONDITION OF ANY KIND, EXPRESS
oR IMPLTED, GONCERNING (A) THE SCOPE OF THE LTCENSE OR OTHER RTGHTS GRANTED
HEREUNDER TO LTGENSEE OR (B) WHETHER OR NOT LTCENSEE'S CONSTRUCTTON,
MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELEGTRIC SUPPLY LINE wlLL
VIOIATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES,
INCLUDING, WTHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY
THIRD PARW.
19.Disclaimer of Wanantv for Quiet Enioyment. 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.
Evic'tion at Risk of Licensee. ln case of the eviction of Licensee by anyone owning, claiming title to, or claiming any
interest in the Premises, or by the abandonment by Licensor of the affected rail conidor, Licensor shall not be liable
(i) to refund Licensee any compensation paid hercunder, except for the prc-ratia part of any recuning charge paid
in advance, or (ii) for any damages or msts Licensee sustains in connection with the eviction.
LIENS AND TA)GS
21. Liens and Charoes. Licensee shall promptly pay and discharge any and all liens arising out of any construction,
alterations or repairc done, suffered or permifted to be done by Licensee on the Premises. Licensor is hereby
authorized to post any notices or tiake any other ac{ion upon or with rcspect 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
Licansor to take any such action shall not relieve Licensee of any obligation or liability under this Sec{ion 21 or any
other Section of this License.
22.Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes') levied or
assessed by any govemmentra! or quasigovemmental 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 Improvements.
DEFAULT. TERMINATION. AND SURRENDER
23. Default and Termination. ln addition to and not in limitation of Licenso/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 contiained in this License
and Licensee fails to cure said default within thirty (30) days afier written notice is provided to Licensee by
Licensor, or in case of any assignment or transfer of this License in violation of Sec'tlon 26 below, Licensor
may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee.
Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if
Licensee fails to provide evidence of insurance as required in Sec'tion 15.
23.2 Should Licensee not comply fully with the obligations of Sectlon l7 regarding the handling or transporting
of hazardous waste or hazadous material, notwithstanding anything contained in any other provision of
this License, Licensor may, at its option, terminate this License by serving five (5) days'notice of termination
upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this
License for any subsequent default or defaultrs, nor shall any such waiver in any way affect Licenso/s ability
to enforce any Section of this License. The remedies set forth in this Section 23 shall be in addition to,
and not in limitation of, any other remedies that Licensor may have at law or in equity.
tn addition to and not in limitation of Licenso/s rights to terminate this License forfailure to provide evidence
of insurance or occurenoe of defaulb as described above, this License may be terminated by either party,
20.
23.4
-11 -Form 421; Rev. 20200605
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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 othemise, resulting from any acb, omissions or events happening prior to the date of termination or
thereafter in case by the terms of the License it is provided that anything shall or may be done after
termination hereof.
24. Surrender of the Premises.
24.1 On or before expiration or termination of this License for any naason, Licensee shall, at its sole cost and
expense:
24.'|..1 if so directed by Licensor in writing, rcmove the lmprovementrs, the Electric Supply Line and all
appurtenances thersto, or, at the sole discretion of Licensor, appropdately decommission the
Electric Supply Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Pnemises or Licenso/s other property arising from, groring
out of or connecled with Licensee's use of the Premises;
24.1-3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date or as
othenrise agrced to by Licensor.
24.2 Upon any expiration or termination of this License, if Licensee fails to sunender the Premises to Licensor
or if Licensee fails to complete its obligations under Section 24.1 above (the'Restoration Obllgations"),
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 hercunder shall
continue in efiect until the Premises are sunendered and the Restoration Obligations are completed.
Neither termination nor expiration shall release Licensee from any liability or obligation under this License,
whether of indemnity or othenrise, resulting fiom any acts, omissions or events happening prior to the date
of termination, or, if later, the date when Licensee sunenders the Premises and all of the Restoration
Obligations are completed.
24.3 lf Licensee 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) dap 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 properly as its
sole property, without payment or obligation to Licensee therefor, or (iii) speciftcally enforce Licensee's
obligation to restore and/or pu6ue any remedy at law or in equi$ against Licensee brfailure to so rcstore.
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, prcvide a bill of sale in a form
acceptable to Licensor conveying the Electric Supply Line and the other lmprovementrs to Licensor fur no
additional consideration.
TISCELLANEOUS
25.Successors and Assions. All provisions contiained in this License shall be binding upon, inure to the benefit of, and
be enforceable by the respective sucoessors and assigns of Licensor and Licensee to the same extent as if each
such successor and assign was named a party to this License.
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 wriften consent of
- 12-Folm-42'l; Rev. 2()2fl)605
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Licensor, which consent may not b€ 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 Sec{ion 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
orvn, directly or indircc*ly, less than 50% of the combined voting power of the outstanding voting equity
interests of Licensee, (b) any sale of all or substiantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, tiaken as a whole, or (c) any leorganization,
recapitalization, merger or consolidation involving Liensee. Notwithstanding the foregoing, any
reorganization, recapitalization, merger or consolidation following which the equity interest holders of
Licensee immediately prior to such reorganization, recapitralization, merger or consolidation own, direcUy
or indirectly, at least 50% of the combined voting power of the outstanding voting equity interests of
Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE I-AND
WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN
LICENSOR'S SOLE DISCRETION.
27
26.3 Notwithstanding the provisions of Sec'tlon 26.1 above or anything contrained in stis License to the contrary,
if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a 'Purported Assignment') to another party (a 'Purported Transferee'),
the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this
License, including but not limited to the obligation to comply with the provisions of Sectlon 15 above
conceming insurance requirements. !n addition to and not in limitation of the foregoing, Licensee, for itsell
its sumsols 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 indirec'tly arising out of, resulting from or related
to (in whote or in part) a Purported Assignment. The provisions of this Sec'tion 26.3 shall survive the
expiration or earlier termination of this License.
26.4 Licensor shall have the right to transfer and assign, in whole or part, all of its rights and obligations under
this License, and upon any such transfer or assignment, Licensor shall be released from any further
obligations hereunder and Licensee agr€es to look solely to the successor in interest of Licensor for the
perbrmance 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 Strates mail, certified, r6tum receipt requested, or (ii) deposited into the custody of a nationally recognized
ovemight delivery servi@, addressed to the pafi to be notified at the address for such party specified belor, or to
such other address as the party to be notified may designate by giving the other pafi no less than thirty (30) days'
advance written notice of such change in address.
lf to Licensor:Jones Lang LaSalle Brokerage, lnc.
4200 Buckingham Rd., Suite 1'10
Fort Worth, TX 76155
Attn: Permits/Licenses
with a copy to:BNSF Railway Company
2650 Lou Menk Dr.
FortWorth, TX 76131
Attn: Senior Manager Real Estrate
-13-Form 42'lt Rev. 20200605
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Trad<ing #21W-1234iO
!f to Licensee:ROClfi MOUNTAIN POWER
1407 W. North Temple
Salt Lake, UT 84116
Survival. Neither termination nor expiration will release either party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting fom any acts, omissions or events happening prior to the date of
termination or expiration, or, if later, the date when the Electric Supply Line and the other lmprovements are
removed and the Restoration Obligations are completed in accordance with the terms hereof.
Recordation. lt is understood and agreed that this License shall not be placed or allowed to be placed on public
record.
Aoolicable Law. All questions concerning the interpretation or application of provisions of this License shall be
decided according to the substantive laws of the State of Texas without regard to conflicts of law provisions.
Severabilitv. To the maximum extent possible, each provision of this License shall be interpreted in such manner
as to be efrec'tive and valid under applicable law, but if any provision of this License shall be prohibited by, or held
to be invalid under, applicable law, such provision shall be ineffective solely to the extent of such prohibition or
invalidity, and this shall not invalidate the remainder of such provision or any other provision of this License.
lnteoration. This License is the full and complete agreement between Licensor and Licensee with respec't to all
matters relating to Licensee's use of the Premises, and supersedes any and all other agreements between the
parties hereto relating to Licensee's use of the Premises as described herein. However, nothing herein is intended
to terminate any surviving obligation of Licensee or Licensee's obligation to defend and hold Licensor harmless in
any pdor written agrcement between the parties.
Joint and Several Liabilitv. lf Licensee consists of two or mors parties, all the ovenants and agreements of
Licensee herein contained shall be the joint and several covenantrs and agrcements 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.
lntemretiation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based
upon the souroe of the draftsmanship; both parties hereby agree that this License shall not be subject to
the principle that a contract would be oonstrued against the pafl which drafted the same. Article titles,
headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of
rebrence only and are not intended to be a part or to afiect the meaning or interpretration hereof. The
exhibit or exhibits referred to herein shall be consfued 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, nincluden, 'includes" and 'including' are deemed to be followed by kithout limitation'
whether or not they arc in fac't followed by sucfr words or words of like import; \vriting", "vvriften' and
comparable terms refer to printing, typing, lithography and other means of reprcducing words in a visible
form; references to any person are also to that person's su@essons and permitted assigns; "hereof,
'herBin", 'hereundef and comparable terms refer to the entirety hereof and not to any particular article,
section, or other subdivision hereof or attachment hereto; references to any gender include references to
the masculine or feminine as the context requires; rcferences to the plural include the singular and vice
versa; and references to this License or other documents ar€ as amended, modified or supplemented from
time to time.
28
29
30
31
32
33
34
35
-14-Fom421; Rev.20200605
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Counteroarb. This Licanse may be executed in multiple counterparE, each of whicfr shall, br all purposes, be
deemed an original butwhich togethershallonstitute one and the same instrument, and the signature pages fiom
any counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts
of this License may also be exchanged electrcnically and any electronic version of any party's signature shall be
deemed to be an original signatum for all purposes.
37 Licenso/s Reoresentative. Jones Lang LaSalle Brckerage, lnc. is acting as representative fur BNSF Raihray
Company.
END OF PAGE-SIGNATURE PAGE FOLLOWS
36.
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EXHIBIT TIAII
1lN=100FT SECTION: 12
TOWNSHIP & RANGE:DIV
SUBDIV
0005 MP: 174.20 MERIDIAN
11113t2021
N
il
6
A
itP 174.20
42.850921 -105.803369
76'
Source: Esri, Maxar, GeoEye, Earthstar Geographics, CNES/Airbus DS,
USDA, USGS, AeroGRlD, lGN, and the GIS User Community
DESCRIPTION OF WIRES OVER TRACK
WIRES LOCATED AS SHOWN BOLD
TYPE
ELECTRIC
NUMBER
3
VOLTAGE
23OKV
DISTANCEABOVE
TOP OF RAIL
CLEARS RAILWAY
COMPANYS WIRES
GLENROCK
COUNTY OF CONVERSE JNCSTATE OF WY
50.0833'
DRAWING NO.83254