20230906Notice of Affiliate Transaction.pdf

VIA ELECTRONIC FILING

September 6, 2023

Idaho Public Utilities Commission
11331 West Chinden Boulevard
Building 8 Suite 201A
Boise, Idaho 83714-1021

Attention: Jan Noriyuki
Commission Secretary

Re: PacifiCorp Notice of Affiliate Transaction — PacifiCorp and BNSF Railway
Company
Case No. PAC-E-05-8

Dear Ms. Noriyuki:

Pursuant to Commitment I 17(2), incorporated in the Idaho Public Utilities Commission
Order No. 29973, issued February 13, 2006, as supplemented by Order No. 29998 March 14,
2006, in the above-referenced proceeding, approving the acquisition of PacifiCorp by
MidAmerican Energy Holdings Company (now Berkshire Hathaway Energy Company or BHE),
PacifiCorp hereby provides notice of affiliated interest transactions with BNSF Railway
Company (BNSF).

PacifiCorp entered into license agreements with its affiliate BNSF to secure two “License
for Electric Supply Line Across or Along Railway Property” permits (collectively, the Licenses).
Permit #22W-16005 will allow PacifiCorp to construct and maintain an electric supply line
containing a maximum of four (4) new conductors, together with its supporting or containing
structures, across or along the rail corridor of BNSF at or near the station of Mabton, County of
Yakima, State of Washington, Line Segment 0048, Mile Post 52.02, as shown on the attached
Drawing No. 86383, dated December 5, 2022, and included with the License as Exhibit “A”.
The second license, Permit #22W-15348, will allow PacifiCorp to construct and maintain an
electric supply line containing a maximum of nine (9) new conductors and seven (7) existing
conductors, together with its supporting or containing structures, across or along the rail corridor
of BNSF at or near the station of Selah, County of Yakima, State of Washington, Line Segment
0048, Mile Post 93.84 to 94.41, as shown on the attached Drawing No. 85820, dated October 27,
2022, and included with the License as Exhibit “B”.
Timothy K. Clark
Assistant General Counsel
1407 W. North Temple, Suite 320
Salt Lake City, UT 84116
801-220-4565 Office
[e-mail]

RECEIVED
Wednesday, September 6, 2023 3:02:09 PM
IDAHO PUBLIC
UTILITIES COMMISSION
2

PacifiCorp is a wholly owned indirect subsidiary of BHE, which 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 was in the public interest because it
allows PacifiCorp to construct and maintain facilities 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 further its commitment to modernization and system
reliability. As the property owner, BNSF was the only entity that could provide the Licenses to
PacifiCorp. BNSF uses standardized pricing for these types of permits. PacifiCorp paid
$13,473.00 for Permit #22W-16005, and $15,152.00 for Permit #22W-15348. The amounts paid
for each 25-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
Assistant General Counsel
PacifiCorp

Enclosures:
Attachment A.pdf
Attachment B.pdf

ATTACHMENT A

to

PacifiCorp Notice of Affiliate Transaction

Jones Lang LaSalle Brokerage, Inc. 2650 Lou Menk Drive – MOB2 Fort Worth, TX 76131 817-352-2631
August 21, 2023
PacifiCorp 22W-16005 Attention: Mr. Scott Mease 825 NE Multnomah Street, Suite 1700 Portland, OR 97232
Dear Mr. Mease:
Enclosed please find one (1) fully executed Electric License Agreement. A copy of the executed agreement must
be available upon request at the job site as authorization to do the work. Please contact BNSF’s Scheduling Agent at [e-mail] or 816-556-3624 at least fifteen (15) days in advance of entry and BEFORE YOU DIG, CALL [phone] (option 1).
Licensee must ensure that each of its employees, contractors, agents or invitees entering upon the premises
completes the safety orientation program at the website www.BNSFcontractor.com prior to entering upon the premises. The certification is good for one year, and each person entering the premises must possess the card certifying completion.
No encroachment above, below or on BNSF Right-of-Way will be allowed without the presence of an Inspector Coordinator and Flagman. You must contact BNSF’s Scheduling Agent to arrange for those services. The scheduling agent may be contacted at [e-mail] or 816-556-3624. The installation contractor must comply with all applicable sections of this agreement, including the requirements of section 16
regarding safety requirements prior to encroaching on BNSF Right-of-Way. The installation contractor must
present and maintain a copy of the executed agreement on site for the duration of the installation activities.
Please note that a copy of the executed agreement must be available upon request at job site(s) allowing authorization to do the work.
If you need additional information, please contact me at [phone].
Sincerely,
Katie Robles Manager Permits
Enclosure
cc: [e-mail]
Douglas Barry - BNSF Roadmaster - [e-mail] Kyle Leatham – BNSF Engineer – [e-mail]
DocuSign Envelope ID: 89019342-67A5-424F-B2AE-641CFABE6DC0
Tracking #22W-16005
-1 - Form 421; Rev. 20200605
LICENSE FOR ELECTRIC SUPPLY LINE ACROSS OR ALONG RAILWAY PROPERTY (Electric Light, Power Supply, Irrespective of Voltage, Overhead or Underground)
THIS LICENSE FOR ELECTRIC SUPPLY LINE ("License") is made to be effective August 25th, 2023 (the "Effective Date") by and between BNSF RAILWAY COMPANY, a Delaware corporation ("Licensor") and PACIFICORP, an Oregon corporation ("Licensee").
In consideration of the mutual covenants contained herein, the parties agree to the following:
GENERAL
1.Grant of License. Licensor hereby grants Licensee a non-exclusive license, subject to all rights, interests, andestates of third parties, including, without limitation, any leases, use rights, easements, liens, or other
encumbrances, and upon the terms and conditions set forth below, to construct and maintain, in strict accordancewith the drawings and specifications approved by Licensor as part of Licensee's application process (the "Drawingsand Specifications"), an electric supply line containing a maximum of Four (4) conductors, together with itssupporting or containing structures (collectively, the "Electric Supply Line"), across or along Licensor's rail corridorat or near the station of Mabton, County of Yakima, State of Washington, Line Segment 0048, Mile Post 52.02 asshown on the attached Drawing No. 86383, dated December 5, 2022, attached hereto as Exhibit "A" andincorporated herein by reference (the "Premises").
2.Term. This License shall commence on the Effective Date and shall continue for a period of twenty-five (25) years,subject to prior termination as hereinafter described.
3.Existing Improvements. Licensee shall not disturb any improvements of Licensor or Licensor's existing lessees,
licensees, easement beneficiaries or lien holders, if any, or interfere with the use, repair, maintenance orreplacement of such improvements.
4.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 otherpurpose and Licensee is expressly prohibited from using or allowing any telecommunication facilities or equipmentwithin the Premises or using or allowing the use of the Premises for any other purpose.
5. Alterations. Except as set forth in this License, Licensee may not make any alterations to the Premises orpermanently affix anything to the Premises or any buildings or other structures adjacent to the Premises without
Licensor's prior written consent.
COMPENSATION
6.License Fee. Licensee shall pay Licensor, prior to the Effective Date, the sum of Ten Thousand Nine Hundred andNo/100 Dollars ($10,900.00) as compensation for the use of the Premises.
7.Costs and Expenses.
7.1 For the purpose of this License, "cost" or "costs" and "expense" or "expenses" includes, but is not limited to, actual labor and material costs including all assignable additives, and material and supply costs at current value where used.
7.2 Licensee agrees to reimburse Licensor (pursuant to the terms of Section 8 below) for all costs and expenses incurred by Licensor in connection with Licensee's use of the Premises or the presence, construction and maintenance of the Electric Supply Line, including but not limited to the furnishing of Licensor's flaggers and any vehicle rental costs incurred, inspection coordination, safety, mobilization and/or other observation services described in this License (collectively, the "Services"). Licensee shall
bear the cost of the Services when deemed necessary by Licensor's representative. Flagging costs shall
DocuSign Envelope ID: 89019342-67A5-424F-B2AE-641CFABE6DC0
Tracking #22W-16005
-2 - Form 421; Rev. 20200605
include, but not be limited to, the following: pay for at least an eight (8) hour basic day with time and one-half or double time for overtime, rest days and holidays (as applicable); vacation allowance; paid holidays (as applicable); railway and unemployment insurance; public liability and property damage insurance; health and welfare benefits; transportation; meals; lodging and supervision. Negotiations for railway labor or collective bargaining agreements and rate changes authorized by appropriate Federal authorities may increase flagging rates. Flagging rates in effect at the time of performance by the flaggers will be used to
calculate the flagging costs pursuant to this Section 7.
7.3 Licensor, at its sole discretion, may elect to designate a third party (the "Scheduling Agent"), to perform and/or arrange for the performance of the Services.
8.Payment Terms. All invoices are due thirty (30) days after the date of invoice. If Licensee fails to pay any monies
due to Licensor within thirty (30) days after the invoice date, then Licensee shall pay interest on such unpaid sumfrom the due date until paid at an annual rate equal to the lesser of (i) the prime rate last published in The Wall
Street Journal in the preceding December plus two and one-half percent (2-1/2%), or (ii) the maximum rate permittedby law.
LICENSOR'S RESERVED RIGHTS
9. Reserved Rights of Use. Licensor excepts and reserves the right, to be exercised by Licensor and any other partieswho may obtain written permission or authority from Licensor:
9.1 to maintain, use, operate, repair, replace, modify and relocate any utility, power or communicationpipe/lines/cables and appurtenances (other than the Electric Supply Line) and other facilities or structures
of like character upon, over, under or across the Premises existing as of the Effective Date;
9.2 to construct, maintain, renew, use, operate, change, modify and relocate any tracks or additional facilities, structures and related appurtenances upon, over, under or across the Premises; or
9.3 to use the Premises in any manner as Licensor in its sole discretion deems appropriate, provided Licensor
uses all commercially reasonable efforts to avoid material interference with the use of the Premises by Licensee for the purpose specified in Section 4 above.
10.Right to Require Relocation. If at any time during the term of this License, Licensor desires the use of its rail corridorin such a manner as would, in Licensor's reasonable opinion, be interfered with by the Electric Supply Line, Licenseeshall, 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 interferencewith the proposed use of Licensor's rail corridor, including, without limitation, the relocation of the Electric SupplyLine, 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 solediscretion, to the Electric Supply Line promptly upon Licensor's request.
LICENSEE'S OPERATIONS
11.Construction and Maintenance of the Electric Supply Line.
11.1 Licensee shall not enter the Premises or commence construction unless accompanied by Licensor'srepresentative, the Scheduling Agent or its designee. Licensee shall notify Licensor's Roadmaster, Douglas Barry at [e-mail], telephone [phone], at least ten (10) business days prior to installation of the Electric Supply Line and prior to entering the Premises for any subsequent maintenance thereon. In the event of emergency, Licensee shall notify Licensor of Licensee's entry onto the Premises at the telephone number above as soon as practicable and shall promptly thereafter follow up with written notice of such entry.
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Tracking #22W-16005
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11.2 Licensee's on-site supervisors shall retain/maintain a fully executed copy of this License at all times while on the Premises.
11.3 While on the Premises, Licensee shall use only public roadways to cross from one side of Licensor's tracks to the other.
11.4 Any contractors or subcontractors performing work on the Electric Supply Line or entering the Premises on behalf of Licensee shall be deemed servants and agents of Licensee for purposes of this License.
11.5 Under no conditions shall Licensee be permitted to conduct any tests, investigations or any other activity using mechanized equipment and/or machinery, or place or store any mechanized equipment, tools or other materials, within twenty-five (25) feet of the centerline of any railroad track on the Premises unless Licensee
has obtained prior written approval from Licensor. Licensee shall, at its sole cost and expense, perform all activities on and about the Premises, including without limitation all construction and maintenance of the Electric Supply Line, in such a manner and of such materials as not at any time to endanger or interfere with (i) the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe
operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. If ordered to cease using the Premises at any time by Licensor's personnel due to any hazardous condition,
Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to monitor Licensee's use of the Premises to determine the safe nature thereof, it being solely Licensee's responsibility to ensure that Licensee's use of the Premises is safe. Neither the exercise nor the failure by Licensor to exercise any rights granted in this Section will alter the
liability allocation provided by this License.
11.6 Licensee shall, at its sole cost and expense, construct and maintain the Electric Supply Line in such a manner and of such material that the Electric Supply Line will not at any time endanger or interfere with (i)
the existence or use of present or future tracks, roadbeds, or property of Licensor, (ii) the safe operation and activities of Licensor or existing third parties, or (iii) the rights or interests of third parties. The
construction of the Electric Supply Line shall be completed within one (1) year of the Effective Date, and any subsequent maintenance shall be completed within one (1) year of initiation. Within fifteen (15) days
after completion of the construction of the Electric Supply Line or the performance of any subsequent maintenance thereon, Licensee shall, at Licensee's own cost and expense, restore the Premises to
substantially their state as of the Effective Date, unless otherwise approved in advance by Licensor in writing. On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost
and expense, surrender the Premises to Licensor pursuant to the terms and conditions set forth in Section 24 hereof.
11.7 Licensor may direct one or more of its field engineers or inspectors to observe or inspect the construction
and/or maintenance of the Electric Supply Line at any time for compliance with the Drawings and Specifications and Legal Requirements (defined below). Licensee shall reimburse Licensor for the cost of
such observation or inspection related services pursuant to Section 8. If ordered at any time to halt construction or maintenance of the Electric Supply Line by Licensor's personnel due to non-compliance
with the Drawings and Specifications or any other hazardous condition, Licensee shall immediately do so. Notwithstanding the foregoing right of Licensor, the parties agree that Licensor has no duty or obligation to
observe or inspect, or to halt work on, the Electric Supply Line, it being solely Licensee's responsibility to ensure that the Electric Supply Line is constructed and maintained in strict accordance with the Drawings
and Specifications and in a safe and workmanlike manner in compliance with all terms hereof. Neither the exercise of, nor the failure by Licensor to exercise, any right granted by this Section will alter in any way the liability allocation provided by this License. If at any time Licensee shall, in the sole judgment of Licensor, fail to properly perform its obligations under this Section 11, Licensor may, at its option and at
Licensee's sole expense, arrange for the performance of such work as it deems necessary for the safety of its operations and activities. Licensee shall promptly reimburse Licensor for all costs and expenses of such
work, pursuant to the terms of Section 8. Licensor's failure to perform any obligations of Licensee shall not alter the liability allocation hereunder.
DocuSign Envelope ID: 89019342-67A5-424F-B2AE-641CFABE6DC0
Tracking #22W-16005
-4 - Form 421; Rev. 20200605
11.8 Licensee shall, at its sole cost and expense, construct and at all times maintain the Electric Supply Line in accordance with the National Electric Safety Code.
11.9 If the operation or maintenance of the Electric Supply Line at any time causes interference, including but not limited to physical interference from electromagnetic induction, electrostatic induction, or from stray or other currents, with the facilities of Licensor or of any lessee or licensee of Licensor, or in any manner
interfere with the operation, maintenance, or use by Licensor of its right-of-way, tracks, structures, pole lines, signal and communication lines, radio, or other equipment, devices, other property or appurtenances thereto, Licensee agrees immediately to make such changes in the Electric Supply Line and furnish such protective devices and/or replacement equipment to Licensor and its lessees or licensees as shall be necessary, in the judgment of Licensor's representative, to eliminate such interference. The cost of such protective devices and their installations shall be borne solely by Licensee. If any of the interference
covered by this Section 11.9 shall be, in the judgment of Licensor, of such importance to the safety of Licensor's operations as to require immediate corrective action, Licensee, upon notice from Licensor, shall either, at Licensor's election, cease using the Electric Supply Line for any purpose whatsoever and remove same, or reduce the voltage or load on the Electric Supply Line, or take such other interim protective
measures as Licensor may deem advisable, until the protective devices and/or replacement equipment required by this Section 11.9 have been installed, put in operation, tested, and found to be satisfactory to
correct the interference.
11.10 Licensee shall, at its sole cost and expense, remove all combustible material from around wooden poles on the Premises, if any, and will at all times keep the space around such poles free of such material, and if
removal of such combustible material shall not be attended to with fifteen (15) days after having been requested by Licensor to do so, Licensor shall have the right itself to perform the work and Licensee hereby
agrees to reimburse Licensor for the expense so incurred.
12.Boring and Excavation.
12.1 Prior to Licensee conducting any boring, excavation, or similar work on or about any portion of the Premises,Licensee shall contact the applicable State's call-before-you-dig utility location service to have 3rd parties
mark the location of utilities. Licensee shall explore the proposed location for such work with hand tools to a depth of at least three (3) feet below the surface of the ground to determine whether pipelines or other structures exist below the surface, provided, however, that in lieu of the foregoing hand-tool exploration, Licensee shall have the right to use suitable detection equipment or other generally accepted industry practice (e.g., consulting with the State Infrastructure Corporation) to determine the existence or location of pipelines and other subsurface structures prior to drilling or excavating with mechanized equipment.
Licensee shall request information from Licensor concerning the existence and approximate location of Licensor's underground lines, utilities, and pipelines at or near the vicinity of the proposed Electric Supply Line by contacting Licensor's Telecommunications Helpdesk, currently at 1-800-713-3599 (option 1), at least ten (10) business days prior to installation of the Electric Supply Line. Upon receiving Licensee's timely request, Licensor will provide Licensee with the information Licensor has in its possession regarding any existing underground lines, utilities, and pipelines at or near the vicinity of the proposed Electric Supply Line and, if applicable, identify the location of such lines on the Premises pursuant to Licensor's standard procedures. Licensor does not warrant the accuracy or completeness of information relating to subsurface conditions of the Premises and Licensee's operations will be subject at all times to the liability provisions herein.
12.2 For all bores greater than 26-inch diameter and at a depth less than 10.0 feet below bottom of rail, a soil investigation must be performed by Licensee and reviewed by Licensor prior to construction. This study is to determine if granular material is present, and to prevent subsidence during the installation process. If the investigation determines in Licensor's reasonable opinion that granular material is present, Licensor may select a new location for Licensee's use, or may require Licensee to furnish for Licensor's review and approval, in Licensor's sole discretion, a remedial plan to deal with the granular material. Once Licensor has approved any such remedial plan in writing, Licensee shall, at Licensee's sole cost and expense, carry out the approved plan in accordance with all terms thereof and hereof.
DocuSign Envelope ID: 89019342-67A5-424F-B2AE-641CFABE6DC0
Tracking #22W-16005
-5 - Form 421; Rev. 20200605
12.3 Any open hole, boring, or well constructed on the Premises by Licensee shall be safely covered and secured at all times when Licensee is not working in the actual vicinity thereof. Following completion of that portion of the work, all holes or borings constructed on the Premises by Licensee shall be:
12.3.1 filled in to surrounding ground level with compacted bentonite grout; or
12.3.2 otherwise secured or retired in accordance with any applicable Legal Requirement. No excavated materials may remain on Licensor's property for more than ten (10) days, but must be properly disposed of by Licensee in accordance with applicable Legal Requirements.
LIABILITY AND INSURANCE
13.Liability and Indemnification.
13.1 For purposes of this License: (a) "Indemnitees" means Licensor and Licensor's affiliated companies,partners, successors, assigns, legal representatives, officers, directors, shareholders, employees, and agents; (b) "Liabilities" means all claims, liabilities, fines, penalties, costs, damages, losses, liens, causes of action, suits, demands, judgments, and expenses (including, without limitation, court costs, reasonable
attorneys' fees, costs of investigation, removal and remediation, and governmental oversight costs) environmental or otherwise; and (c) "Licensee Parties" means Licensee and Licensee's officers, agents, invitees, licensees, employees, or contractors, or any party directly or indirectly employed by any of them, or any party they control or exercise control over.
13.2 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS INDEMNITEES FOR, FROM, AND AGAINST ANY AND ALL LIABILITIES OF ANY NATURE, KIND, OR DESCRIPTION DIRECTLY OR INDIRECTLY ARISING OUT OF, RESULTING FROM, OR RELATED TO (IN WHOLE OR IN PART):
13.2.1 THIS LICENSE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL PROVISIONS,
13.2.2 ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LICENSE,
13.2.3 LICENSEE'S OCCUPATION AND USE OF THE PREMISES,
13.2.4 THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES CAUSED BY OR CONTRIBUTED TO BY LICENSEE, OR
13.2.5 ANY ACT OR OMISSION OF ANY LICENSEE PARTY.
13.3 TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE NOW AND FOREVER WAIVES, AND WILL INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL CLAIMS THAT BY VIRTUE OF ENTERING INTO THIS LICENSE, LICENSOR IS A GENERATOR, OWNER, OPERATOR, ARRANGER, OR TRANSPORTER FOR THE PURPOSES OF THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT, AS AMENDED ("CERCLA") OR OTHER ENVIRONMENTAL LAWS (DEFINED BELOW). NOTHING IN THIS LICENSE IS MEANT BY EITHER PARTY TO CONSTITUTE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES AND THIS LICENSE SHOULD NOT BE SO CONSTRUED. IF ANY AGENCY OR COURT CONSTRUES THIS LICENSE TO BE A WAIVER OF ANY INDEMNITEE'S COMMON CARRIER DEFENSES, LICENSEE AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND INDEMNITEES FOR ANY LIABILITIES RELATED TO THAT CONSTRUCTION OF THIS LICENSE. IN NO EVENT AS BETWEEN LICENSOR AND LICENSEE AS TO USE OF THE PREMISES AS CONTEMPLATED BY THIS LICENSE SHALL LICENSOR BE RESPONSIBLE TO LICENSEE FOR THE ENVIRONMENTAL CONDITION OF THE PREMISES.
DocuSign Envelope ID: 89019342-67A5-424F-B2AE-641CFABE6DC0
Tracking #22W-16005
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13.4 IF ANY EMPLOYEE OF ANY LICENSEE PARTY ASSERTS THAT HE OR SHE IS AN EMPLOYEE OF ANY INDEMNITEE, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSEE SHALL, AND SHALL CAUSE ITS CONTRACTOR TO, RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR RELATED TO (IN WHOLE OR IN PART) ANY SUCH ASSERTION INCLUDING, BUT NOT LIMITED TO, ASSERTIONS OF EMPLOYMENT BY AN INDEMNITEE RELATED TO THE FOLLOWING OR ANY PROCEEDINGS THEREUNDER: THE FEDERAL EMPLOYERS' LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE LOCOMOTIVE INSPECTION ACT, THE OCCUPATIONAL SAFETY AND HEALTH ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL STATUTE.
13.5 THE FOREGOING OBLIGATIONS OF LICENSEE SHALL NOT APPLY TO THE EXTENT LIABILITIES ARE PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY INDEMNITEE, BUT SHALL APPLY TO ALL OTHER LIABILITIES, INCLUDING THOSE ARISING FROM OR ATTRIBUTED TO ANY OTHER ALLEGED OR ACTUAL NEGLIGENCE, INTENTIONAL ACTS, OR STRICT LIABILITY OF ANY INDEMNITEE.
13.6 Upon written notice from Licensor, Licensee agrees to assume the defense of any lawsuit or other
proceeding brought against any 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 Indemnitee. Licensee shall pay all costs and expenses incident to such defense, including, but not limited to, reasonable attorneys' fees, investigators' fees, litigation and appeal expenses, settlement payments, and amounts paid
in satisfaction of judgments.
14.Personal Property Risk of Loss. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF LICENSEE ONLY,AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF, WHETHER ORNOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
15. Insurance. Licensee shall, at its sole cost and expense, procure and maintain during the term of this License the
following insurance coverage:
15.1 Commercial General Liability “CGL” Insurance.
a.The policy will provide a minimum of $2,000,000 per occurrence and an aggregate limit of at least$4,000,000 but in no event will the coverage be in an amount less than the amount otherwise carried
by Licensee. Coverage must be purchased on a post 2004 ISO occurrence form or equivalent andinclude coverage for, but not limited to, the following:
Bodily Injury and Property Damage
Personal Injury and Advertising Injury
Fire legal liability
Products and completed operations
Contractual Liability for an “Insured Contract” consistent with the definition under the standard ISOgeneral liability policy form.
b.This policy will include the following endorsements or language, which shall be indicated on or attached
to the certificate of insurance:
The definition of “Insured Contract” will be amended to remove any exclusion or other limitation forany work being done within 50 feet of Licensor’s property;
Waiver of subrogation in favor of and acceptable to Licensor;
Additional insured endorsement in favor of and acceptable to Licensor and Jones Lang LaSalleBrokerage, Inc.to include coverage for ongoing operations and completed operations;
Separation of insureds;
The policy shall be primary and non-contributing with respect to any insurance carried by Licensor.
DocuSign Envelope ID: 89019342-67A5-424F-B2AE-641CFABE6DC0
Tracking #22W-16005
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c.The parties agree that the workers’ compensation and employers’ liability related exclusions in the CGLpolicy(s) are intended to apply to employees of the policyholder and will not apply to Licensor’semployees.
d.No other endorsements that limit coverage with respect to Licensee’s obligations under this agreementmay be included on the policy.
15.2 Business Automobile Insurance
a.The insurance will provide minimum coverage with a combined single limit of at least $1,000,000 peraccident, 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 attachedto the certificate of insurance:
Waiver of subrogation in favor of and acceptable to Licensor;
Additional insured endorsement in favor of and acceptable to Licensor;
Separation of insureds;
The policy shall be primary and non-contributing with respect to any insurance carried by Licensor.
15.3 Workers' Compensation and Employers' Liability Insurance
a.The policy will provide coverage of all employees performing any part of the work or services
including coverage for, but not limited to:
Licensee's statutory liability under the workers' compensation laws of the state(s) in which the workor services are to be performed. The policy will cover all of Licensee’s employees, regardless ofwhether 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 diseasepolicy limit, $500,000 by disease each employee.
b.The policy will include contain the following endorsements or language, which shall be indicated on orattached to the certificate of insurance:
Waiver of subrogation in favor of and acceptable to Licensor.
15.4 Railroad Protective Liability Insurance. The policy will name only Licensor as the Insured and will provide
coverage of at least $2,000,000 per occurrence and $6,000,000 in the aggregate. The coverage obtained under this policy shall only be effective during the initial installation and/or construction of the Electric Supply Line. THE CONSTRUCTION OF THE ELECTRIC SUPPLY LINE SHALL BE COMPLETED WITHIN ONE (1) YEAR OF THE EFFECTIVE DATE. If further maintenance of the Electric Supply Line is needed at alater date, an additional Railroad Protective Liability Insurance Policy shall be required. The policy will beissued on a standard ISO form CG 00 35 12 04 and include the following:
Endorsed to include the Pollution Exclusion Amendment.
Endorsed to include the Limited Seepage and Pollution Endorsement.
Endorsed to remove any exclusion for punitive damages.
Endorsed to include Evacuation Expense Coverage Endorsement.
No other endorsements restricting coverage may be added.
The original policy must be provided to Licensor and Licensee shall not perform any work or servicesof 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 accidentalloss of or damage to all property owned by any named insured and all property in any named insured'scare, custody and control (including, but not limited to rolling stock and their contents, mechanicalconstruction equipment or motive power equipment, railroad tracks, roadbeds, catenaries, signals,tunnels, bridges and buildings) arising out of the acts or omissions of the contractor named on theDeclarations."
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In lieu of providing a Railroad Protective Liability Policy, for a period of one (1) year from the Effective Date, Licensee may participate in Licensor's Blanket Railroad Protective Liability Insurance Policy available to Licensee or its contractor. The limits of coverage are the same as above. The cost is $506.00.
Licensee elects to participate in Licensor's Blanket Policy;
Licensee declines to participate in Licensor's Blanket Policy.
15.5 Other Requirements:
15.5.1 Where allowable by law, no exclusion for punitive damages may be included in any policy.
15.5.2 Licensee agrees to waive its right of recovery against Licensor for all claims and suits against Licensor. In addition, Licensee's insurers, through the terms of the policy or policy endorsement, waive their right of subrogation against Licensor for all claims and suits. Licensee further waives its right of recovery, and its insurers also waive their right of subrogation against Licensor for loss of Licensee's owned or leased property or property under Licensee's care, custody, or control.
15.5.3 Allocated Loss Expense, including but not limited to defense costs and expenses, will be in addition to all policy limits for coverage under the insurance requirements.
15.5.4 Licensee is not allowed to self-insure without the prior written consent of Licensor. If Licensor
allows Licensee to self-insure, Licensee shall directly cover any self-insured retention or other financial responsibility for claims in lieu of insurance. Any and all Licensor liabilities that would
otherwise be covered by Licensee's insurance in accordance with the provisions of this agreement, will be covered as if Licensee elected not to include a self-insured retention or other financial responsibility for claims.
15.5.5 Prior to entering the Premises or commencing the services or work, Licensee shall furnish to Licensor an acceptable certificate(s) of insurance from an authorized representative evidencing the
required coverage(s), endorsements, and amendments.
15.5.6 Licensee shall notify BNSF in writing at least 30 days prior to any cancellation, non-renewal, substitution or material alteration of any insurance requirement.
15.5.7 Any insurance policy shall be written by a reputable insurance company acceptable to Licensor or
with a current Best's Guide Rating of A- and Class VII or better, and authorized to do business in the state(s) in which the service is to be provided.
15.5.8 If the coverage provided by any of the insurance policies required by this agreement is purchased
on a "claims made" basis, Licensee hereby agrees to maintain coverage in force for a minimum of three years after expiration, cancellation or termination of this agreement.
15.5.9 Licensee agrees to provide evidence to Licensor that it has the required coverage in place at least
annually or in the event of a renewal or material change of coverage.
15.5.10 Licensee represents that this License has been thoroughly reviewed by Licensee's insurance agent(s)/broker(s), and that Licensee has instructed them to procure the insurance coverage
required by this License.
15.5.11 Not more frequently than once every five years, Licensor may, at its discretion, reasonably modify the insurance requirements to reflect the then-current risk management practices in the railroad
industry and underwriting practices in the insurance industry.
15.5.12 If Licensee will subcontract any portion of the operation, Licensee shall require that the subcontractor provide and maintain insurance coverage(s) as set forth herein, naming Licensor as
X
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an additional insured. In addition, Licensee shall require that the subcontractor shall release, defend and indemnify Licensee to the same extent and under the same terms and conditions as Licensee is required to release, defend and indemnify Licensor under this agreement.
15.5.13 Failure to provide evidence as required by this section shall entitle, but not require, Licensor to terminate this License immediately. Acceptance of a certificate that does not comply with this
section shall not operate as a waiver of Licensee's obligations hereunder.
15.5.14 The fact that Licensee obtains insurance (including, without limitation, self-insurance) shall not release or diminish Licensee’s liabilities or obligations including, without limitation, the liabilities and obligations under the indemnity provisions of the License. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage.
15.5.15 In the event of a claim or lawsuit involving Licensor arising out of this Agreement, Licensee will make the policy covering such claims or lawsuits available to Licensor.
15.5.16 If Licensee maintains broader coverage and/or higher limits than the minimum requirements in this Agreement, Licensor requires and shall be entitled to the broader coverage
and/or the higher limits. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to Licensor.
15.5.17 These insurance provisions are intended to be a separate and distinct obligation on the part of the
Licensee. Therefore, these provisions shall be enforceable and Licensee shall be bound thereby regardless of whether or not indemnity provisions are determined to be enforceable in the
jurisdiction in which the work or services performed under this License is performed.
15.5.18 For purposes of this Section 15, Licensor shall mean "Burlington Northern Santa Fe, LLC", "BNSF Railway Company" and the subsidiaries, successors, assigns and affiliates of each.
COMPLIANCE WITH LAWS, REGULATIONS, AND ENVIRONMENTAL MATTERS
16.Compliance with Laws, Rules, and Regulations.
16.1 Licensee shall observe and comply with any and all applicable federal, state, local and tribal laws, statutes,regulations, ordinances, orders, covenants, restrictions, or decisions of any court of competent jurisdiction
("Legal Requirements") relating to the construction, maintenance, and use of the Electric Supply Line and the use of the Premises.
16.2 Prior to entering the Premises, Licensee shall and shall cause its contractor(s) to comply with all of Licensor's applicable safety rules and regulations. Licensee must ensure that each of its employees, contractors, agents or invitees entering upon the Premises completes the safety orientation program at the Website "www.BNSFcontractor.com" (the "Safety Orientation") within one year prior to entering upon the Premises. Additionally, Licensee must ensure that each and every employee of Licensee, its contractors, agents and invitees possess a card certifying completion of the Safety Orientation prior to entering upon the Premises. Licensee must renew (and ensure that its contractors, agents or invitees, as applicable,
renew) the Safety Orientation annually.
16.3 Licensee shall obtain on or before the date it or its contractor enters the Premises, any and all additional rights-of way, easements, licenses and other agreements relating to the grant of rights and interests in and/or access to the Premises (collectively, the "Rights") and such other rights, licenses, permits, authorizations, and approvals (including without limitation, any necessary local, state, federal or tribal
authorizations and environmental permits) that are necessary in order to permit Licensee to construct, maintain, own and operate the Electric Supply Line and otherwise to perform its obligations hereunder in accordance with the terms and conditions hereof.
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16.4 Licensee shall either require that the initial stated term of each such Rights be for a period that does not expire, in accordance with its ordinary terms, prior to the last day of the term of this License or, if the initial stated term of any such Right expires in accordance with its ordinary terms on a date earlier than the last day of the term of this License, Licensee shall, at its cost, exercise any renewal rights thereunder, or otherwise acquire such extensions, additions and/or replacements as may be necessary, in order to cause the stated term thereof to be continued until a date that is not earlier than the last day of the term of this
License.
16.5 Upon the expiration or termination of any Right that is necessary in order for Licensee to own, operate or use the Electric Supply Line in accordance with the terms and conditions of this License, this License thereby shall automatically expire upon such expiration or termination of the Right.
17. Environmental.
17.1 Licensee shall strictly comply with all federal, state and local environmental Legal Requirements andregulations in its use of the Premises, including, but not limited to, the Resource Conservation and Recovery Act, as amended (RCRA), the Clean Water Act, the Oil Pollution Act, the Hazardous Materials Transportation Act, and CERCLA (collectively referred to as the "Environmental Laws"). Licensee shall
not maintain a treatment, storage, transfer or disposal facility, or underground storage tank, as defined by Environmental Laws on the Premises. Licensee shall not release or suffer the release of oil or hazardous substances, as defined by Environmental Laws on or about the Premises.
17.2 Licensee covenants that it will not handle or transport "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state,
or local governmental agency or body on the Premises. Licensee agrees periodically to furnish Licensor with proof, satisfactory to Licensor that Licensee is in compliance with the provisions of this Section 17.2.
17.3 Licensee shall give Licensor immediate notice to Licensor's Resource Operations Center at [phone]
of any known (i) release of hazardous substances on, from, or affecting the Premises, (ii) violation of Environmental Laws, or (iii) inspection or inquiry by governmental authorities charged with enforcing
Environmental Laws with respect to Licensee's use of the Premises. Licensee shall use the best efforts to promptly respond to any release on, from, or affecting the Premises. Licensee also shall give Licensor immediate notice of all measures undertaken on behalf of Licensee to investigate, remediate, respond to or otherwise cure such release or violation.
17.4 If Licensor has notice from Licensee or otherwise of a release or violation of Environmental Laws arising in
any way with respect to the Electric Supply Line which occurred or may occur during the term of this License, Licensor may require Licensee, at Licensee's sole risk and expense, to take timely measures to
investigate, remediate, respond to or otherwise cure such release or violation affecting the Premises or Licensor's right-of-way.
17.5 Licensee shall promptly report to Licensor in writing any conditions or activities upon the Premises known to Licensee which create a risk of harm to persons, property or the environment and shall take whatever action is necessary to prevent injury to persons, property, or the environment arising out of such conditions
or activities; provided, however, that Licensee's reporting to Licensor shall not relieve Licensee of any obligation whatsoever imposed on it by this License. Licensee shall promptly respond to Licensor's request
for information regarding said conditions or activities.
DISCLAIMER OF WARRANTIES
18.No Warranties.
18.1 LICENSOR'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN THISLICENSE 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
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WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES OR WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
18.2 LICENSOR MAKES NO WARRANTY, REPRESENTATION OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, CONCERNING (A) THE SCOPE OF THE LICENSE OR OTHER RIGHTS GRANTED HEREUNDER TO LICENSEE OR (B) WHETHER OR NOT LICENSEE'S CONSTRUCTION, MAINTENANCE, OWNERSHIP, USE OR OPERATION OF THE ELECTRIC SUPPLY LINE WILL VIOLATE OR INFRINGE UPON THE RIGHTS, INTERESTS AND ESTATES OF THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, ANY LEASES, USE RIGHTS, EASEMENTS AND LIENS OF ANY THIRD PARTY.
19.Disclaimer of Warranty for Quiet Enjoyment. LICENSOR DOES NOT WARRANT ITS TITLE TO THE PREMISESNOR UNDERTAKE TO DEFEND LICENSEE IN THE PEACEABLE POSSESSION OR USE THEREOF. NOCOVENANT OF QUIET ENJOYMENT IS MADE.
20.Eviction at Risk of Licensee. In case of the eviction of Licensee by anyone owning, claiming title to, or claiming anyinterest in the Premises, or by the abandonment by Licensor of the affected rail corridor, Licensor shall not be liable
(i)to refund Licensee any compensation paid hereunder, except for the pro-rata part of any recurring charge paidin advance, or (ii) for any damages or costs Licensee sustains in connection with the eviction.
LIENS AND TAXES
21.Liens and Charges. Licensee shall promptly pay and discharge any and all liens arising out of any construction,
alterations or repairs done, suffered or permitted to be done by Licensee on the Premises. Licensor is herebyauthorized to post any notices or take any other action upon or with respect to the Premises that is or may bepermitted by law to prevent the attachment of any such liens to the Premises; provided, however, that failure ofLicensor to take any such action shall not relieve Licensee of any obligation or liability under this Section 21 or anyother Section of this License.
22. Taxes. Licensee shall pay when due any taxes, assessments or other charges (collectively, "Taxes") levied orassessed by any governmental or quasi-governmental body upon the Electric Supply Line or any otherimprovements constructed or installed on the Premises by or for Licensee (collectively, the "Improvements") orany Taxes levied or assessed against Licensor or the Premises that are attributable to the Improvements.
DEFAULT, TERMINATION, AND SURRENDER
23.Default and Termination. In addition to and not in limitation of Licensor's right to terminate for failure to provideevidence of insurance as required pursuant to the terms of Section 15, the following events are also deemed to beevents of default pursuant to which Licensor has the right to terminate as set forth below:
23.1 If default shall be made in any of Licensee's covenants, agreements, or obligations contained in this Licenseand Licensee fails to cure said default within thirty (30) days after written notice is provided to Licensee by Licensor, or in case of any assignment or transfer of this License in violation of Section 26 below, Licensor may, at its option, terminate this License by serving five (5) days' notice in writing upon Licensee. Notwithstanding the foregoing, Licensor shall have the right to terminate this License immediately if Licensee fails to provide evidence of insurance as required in Section 15.
23.2 Should Licensee not comply fully with the obligations of Section 17 regarding the handling or transporting of hazardous waste or hazardous material, notwithstanding anything contained in any other provision of this License, Licensor may, at its option, terminate this License by serving five (5) days' notice of termination upon Licensee.
23.3 Any waiver by Licensor of any default or defaults shall not constitute a waiver of the right to terminate this License for any subsequent default or defaults, nor shall any such waiver in any way affect Licensor's ability
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to enforce any Section of this License. The remedies set forth in this Section 23 shall be in addition to, and not in limitation of, any other remedies that Licensor may have at law or in equity.
23.4 In addition to and not in limitation of Licensor's rights to terminate this License for failure to provide evidence of insurance or occurrence of defaults as described above, this License may be terminated by either party, at any time, by serving thirty (30) days' written notice of termination upon the other party. Such termination
shall not release either party hereto from any liability or obligation under the License, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination or thereafter in case by the terms of the License it is provided that anything shall or may be done after termination hereof.
24.Surrender of the Premises.
24.1 On or before expiration or termination of this License for any reason, Licensee shall, at its sole cost andexpense:
24.1.1 if so directed by Licensor in writing, remove the Improvements, the Electric Supply Line and all appurtenances thereto, or, at the sole discretion of Licensor, appropriately decommission the
Electric Supply Line with a method satisfactory to Licensor;
24.1.2 report and restore any damage to the Premises or Licensor's other property arising from, growing out of, or connected with Licensee's use of the Premises;
24.1.3 remedy any unsafe conditions on the Premises created or aggravated by Licensee; and
24.1.4 leave the Premises in substantially the condition which existed as of the Effective Date or as otherwise agreed to by Licensor.
24.2 Upon any expiration or termination of this License, if Licensee fails to surrender the Premises to Licensor or if Licensee fails to complete its obligations under Section 24.1 above (the "Restoration Obligations"),
Licensee shall have a limited license to enter upon the Premises solely to the extent necessary for Licensee to complete the Restoration Obligations, and all liabilities and obligations of Licensee hereunder shall continue in effect until the Premises are surrendered and the Restoration Obligations are completed. Neither termination nor expiration shall release Licensee from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or, if later, the date when Licensee surrenders the Premises and all of the Restoration
Obligations are completed.
24.3 If Licensee fails to complete the Restoration Obligations within thirty (30) days after the date of such termination of its tenancy, then Licensor may, at its election, either: (i) remove the Electric Supply Line and
the other Improvements or otherwise restore the Premises, and in such event Licensee shall, within thirty (30)days after receipt of bill therefor, reimburse Licensor for cost incurred, (ii) upon written notice toLicensee, take and hold the Electric Supply Line and the other Improvements and personal property as itssole property, without payment or obligation to Licensee therefor, or (iii) specifically enforce Licensee's
obligation to restore and/or pursue any remedy at law or in equity against Licensee for failure to so restore.Further, if Licensor has consented to the Electric Supply Line and the other Improvements remaining on
the Premises following termination, Licensee shall, upon request by Licensor, provide a bill of sale in a formacceptable to Licensor conveying the Electric Supply Line and the other Improvements to Licensor for no
additional consideration.
MISCELLANEOUS
25.Successors and Assigns. All provisions contained in this License shall be binding upon, inure to the benefit of, andbe enforceable by the respective successors and assigns of Licensor and Licensee to the same extent as if eachsuch successor and assign was named a party to this License.
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26. Assignment.
26.1 Licensee may not sell, assign, transfer, or hypothecate this License or any right, obligation, or interestherein (either voluntarily or by operation of law, merger, or otherwise) without the prior written consent of Licensor, which consent may not be unreasonably withheld or delayed by Licensor. Any attempted assignment by Licensee in violation of this Section 26 shall be a breach of this License and, in addition,
shall be voidable by Licensor in its sole and absolute discretion.
26.2 For purposes of this Section 26, the word "assign" shall include without limitation (a) any sale of the equity interests of Licensee following which the equity interest holders of Licensee immediately prior to such sale own, directly or indirectly, less than 50% of the combined voting power of the outstanding voting equity interests of Licensee, (b) any sale of all or substantially all of the assets of (i) Licensee and (ii) to the extent
such entities exist, Licensee's parent and subsidiaries, taken as a whole, or (c) any reorganization, recapitalization, merger or consolidation involving Licensee. Notwithstanding the foregoing, any reorganization, recapitalization, merger or consolidation following which the equity interest holders of Licensee immediately prior to such reorganization, recapitalization, merger or consolidation own, directly
or indirectly, at least 50% of the combined voting power of the outstanding voting equity interests of Licensee or any successor thereto or the entity resulting from such reorganization, recapitalization, merger
or consolidation shall not be deemed an assignment. THIS LICENSE SHALL NOT RUN WITH THE LAND WITHOUT THE EXPRESS WRITTEN CONSENT OF LICENSOR, SUCH CONSENT TO BE IN LICENSOR'S SOLE DISCRETION.
26.3 Notwithstanding the provisions of Section 26.1 above or anything contained in this License to the contrary, if Licensee sells, assigns, transfers, or hypothecates this License or any interest herein in contravention of
the provisions of this License (a "Purported Assignment") to another party (a "Purported Transferee"), the Purported Transferee's enjoyment of the rights and privileges granted under this License shall be
deemed to be the Purported Transferee's agreement to be bound by all of the terms and provisions of this License, including but not limited to the obligation to comply with the provisions of Section 15 above
concerning insurance requirements. In addition to and not in limitation of the foregoing, Licensee, for itself, its successors and assigns, shall indemnify, defend and hold harmless Licensor for all Liabilities of any
nature, kind or description of any person or entity directly or indirectly arising out of, resulting from or related to (in whole or in part) a Purported Assignment. The provisions of this Section 26.3 shall survive the
expiration or earlier termination of this License.
26.4 Licensor shall have the right to transfer and assign, in whole or part, all of its rights and obligations under this License, and upon any such transfer or assignment, Licensor shall be released from any further
obligations hereunder and Licensee agrees to look solely to the successor in interest of Licensor for the performance of such obligations.
27. Notices. Any notice, invoice, or other writing required or permitted to be given hereunder by one party to the othershall be in writing and the same shall be given and shall be deemed to have been served and given if (i) placed inthe United States mail, certified, return receipt requested, or (ii) deposited into the custody of a nationally recognizedovernight delivery service, addressed to the party to be notified at the address for such party specified below, or tosuch other address as the party to be notified may designate by giving the other party no less than thirty (30) days'advance written notice of such change in address.
If to Licensor: Jones Lang LaSalle Brokerage, Inc. 2650 Lou Menk Drive – MOB2 Fort Worth, TX 76131 Attn: Permits/Licenses
with a copy to: BNSF Railway Company 2650 Lou Menk Dr. Fort Worth, TX 76131 Attn: Senior Manager Real Estate
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If to Licensee: PacifiCorp 825 NE Multnomah Street, Suite 1700 Portland, OR 97232 Attn: Scott Mease
28. Survival. Neither termination nor expiration will release either party from any liability or obligation under this License,
whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date oftermination or expiration, or, if later, the date when the Electric Supply Line and the other Improvements areremoved and the Restoration Obligations are completed in accordance with the terms hereof.
29. Recordation. It is understood and agreed that this License shall not be placed or allowed to be placed on publicrecord.
30.Applicable Law. All questions concerning the interpretation or application of provisions of this License shall bedecided according to the substantive laws of the State of Texas without regard to conflicts of law provisions.
31. Severability. To the maximum extent possible, each provision of this License shall be interpreted in such manneras 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 orinvalidity, and this shall not invalidate the remainder of such provision or any other provision of this License.
32. Integration. This License is the full and complete agreement between Licensor and Licensee with respect to allmatters relating to Licensee's use of the Premises, and supersedes any and all other agreements between theparties 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 inany prior written agreement between the parties.
33.Joint and Several Liability. If Licensee consists of two or more parties, all the covenants and agreements ofLicensee herein contained shall be the joint and several covenants and agreements of such parties.
34.Waiver. The waiver by Licensor of the breach of any provision herein by Licensee shall in no way impair the rightof Licensor to enforce that provision for any subsequent breach thereof.
35. Interpretation.
35.1 This License shall be interpreted in a neutral manner, and not more strongly for or against any party based
upon the source of the draftsmanship; both parties hereby agree that this License shall not be subject to the principle that a contract would be construed against the party which drafted the same. Article titles, headings to sections and paragraphs and the table of contents (if any) are inserted for convenience of reference only and are not intended to be a part or to affect the meaning or interpretation hereof. The exhibit or exhibits referred to herein shall be construed with and as an integral part of this License to the same extent as if they were set forth verbatim herein.
35.2 As used herein, "include", "includes" and "including" are deemed to be followed by "without limitation" whether or not they are in fact followed by such words or words of like import; "writing", "written" and comparable terms refer to printing, typing, lithography and other means of reproducing words in a visible
form; references to any person are also to that person's successors and permitted assigns; "hereof", "herein", "hereunder" and comparable terms refer to the entirety hereof and not to any particular article, section, or other subdivision hereof or attachment hereto; references to any gender include references to the masculine or feminine as the context requires; references to the plural include the singular and vice versa; and references to this License or other documents are as amended, modified or supplemented from time to time.
36. Counterparts. This License may be executed in multiple counterparts, each of which shall, for all purposes, bedeemed an original but which together shall constitute one and the same instrument, and the signature pages fromany counterpart may be appended to any other counterpart to assemble fully executed documents, and counterparts
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of this License may also be exchanged electronically and any electronic version of any party's signature shall be deemed to be an original signature for all purposes.
37. Licensor's Representative. Jones Lang LaSalle Brokerage, Inc. is acting as representative for BNSF RailwayCompany.
END OF PAGE – SIGNATURE PAGE FOLLOWS
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This License has been duly executed by the parties hereto as of the Effective Date.
LICENSOR:
BNSF Railway Company, a Delaware corporation
By: Jones Lang LaSalle Brokerage, Inc.
2650 Lou Menk Drive – MOB1
Fort Worth, TX 76131
By:
By:
Title:
LICENSEE:
PacifiCorp, an Oregon corporation
By:
By:
Title:
James PalmerManager, Right of Way
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Vice President, Permits
Patricia Villegas
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TOWNSHIP & RANGE:
EXHIBIT "A"
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MP 52.0246.211759, -119.998247
NEW UTILITY POLE60' WOOD WITH DOWN GUY78' FROM TRACK
NEW UTILITY POLE60' WOOD W/ DOWN GUY76' FROM TRACK
EXISTING UTILITY POLETO BE REMOVEDUNKNOWN AGREEMENT
EXISTING UTILITY POLETO BE REMOVEDUNKNOWN AGREEMENT
EXISTING OVERHEAD LINESTO BE REMOVEDUNKNOWN AGREEMENT
38' FROM ROAD CENTERLINETO OVERHEAD WIRES
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ATTACHMENT B

to

PacifiCorp Notice of Affiliate Transaction
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Vice President
Shane Krueger
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