Exhibit 10.1
Form Approved by VP-Law
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
LEASE OF LAND FOR CONSTRUCTION/REHABILITATION OF TRACK
THIS LEASE, ("Lease") made as of the 12th day of My, 2003, by and between
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, a Delaware corporation
(hereinafter called "Railroad"), and RED TRAIL ENERGY L.L.C., a(n) a Limited
Liability Corporation, formed under the laws of North Dakota, (hereinafter,
whether one party or more, called "Industry").
NOW THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
LEASE OF PREMISES
1. Railroad hereby leases to Industry, subject to all rights, interests and
estates of third parties, and upon the terms and conditions set forth
below, the land situated at or near the railway station of Richardton,
County of Xxxxx, State of North Dakota, as described or shown on print
hereto attached, dated 07/09/04, marked Exhibit "A", and made a part of
this Lease ("Premises") for the construction, location and maintenance of
trackage as described herein.
PERMITTED USE
2. (a) Industry shall use the Premises exclusively as a site for
construction, location, and maintenance of trackage and for no other
purpose. Industry shall not use or store hazardous substances, as
defined by the Comprehensive Environmental Response, Compensation, and
Liability Act, as amended ("CERCLA") or petroleum or oil as defined by
applicable Environmental Laws on the Premises. Industry shall provide
all relevant information to Railroad's inquiries regarding the use or
condition of the Premises. Railroad may enter the Premises at any time
Railroad desires to inspect the Premises.
(b) Maintenance for the purpose of this Lease includes, but is not limited
to, responsibility for providing proper drainage along the relevant
portion of the track and for keeping the track free and clear of snow,
ice, vegetation, structures, and other obstacles. Maintenance also
includes, but is not limited to, responsibility for the maintenance of
grade crossing warning devices, stop signs, gates, fences or barriers,
roadway construction, track drainage facilities, lighting, track
signals and signal maintenance.
TERM
3. Unless earlier terminated as hereinafter provided, this Lease shall be in
force for the term of ONE YEAR from its date and shall automatically
continue thereafter until terminated
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by either party giving to the other thirty (30) days written notice of its
desire to terminate the same.
RENTAL
4. Industry shall pay to Railroad, prior to the Effective Date of this Lease,
a one-time sum of Five Hundred Dollars ($500.00) for the Lease of the
Premises.
COMPLIANCE WITH LAWS
5. (a) Industry shall be responsible for obtaining, without expense to
Railroad, all necessary real property rights and public authority and
permission, including applicable permits, for the maintenance and
operation of the Premises provided Industry obtains prior written
consent from Railroad.
(b) Industry has examined the Premises and accepts the condition thereof
"AS IS", and shall exercise its rights and fulfill its obligations
hereunder in full compliance with all laws, statutes, regulations,
ordinances, orders, covenants, restrictions, or decisions of any court
of competent jurisdiction ("Legal Requirements") relating to the use
of the Premises.
(c) Prior to entering the Premises, Industry shall and shall cause its
contractor to comply with all Railroad's applicable safety rules and
regulations. Prior to commencing any work on the Premises, Industry
shall complete and shall require its contractor to complete the
safety-training program at the Railroad's Internet Website
"xxxx://xxxxxxxxxxxxxxxxxxxxx.xxx". This training must be completed no
more than one year in advance of Industry's entry on the Premises.
USE AND MAINTENANCE OF PREMISES
6. Railroad may require for safety purposes that Industry, at its sole cost
and expense, provide flagmen, lights, traffic control devices, automatic
warning devices, or any such safety measure that Railroad deems appropriate
in connection with Industry's use of the Premises for the purpose
identified in Section 2 above. Industry shall reimburse Railroad within
thirty (30) days of receipt of xxxx rendered therefor for all costs
expended by Railroad, including but not limited to the cost of Railroad's
Flagman ($500.00 per eight hour day, $95.00 per hour thereafter), in
connection with this Section.
7. In the event Industry requires access to and from the Premises by use of
Railroad's property adjacent to the Premises, Railroad hereby grants
Industry a non-exclusive license and permission to enter upon Railroad's
property for such purpose. Railroad shall, at its sole discretion,
designate the location or route to be used by Industry. For the purpose of
this Lease, the designated access, whether specifically defined or not, is
included in the definition of Premises.
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8. Industry shall notify Railroad's representative Roadmaster Xxxxxx Xxxxxx,
at Dickinson, North Dakota telephone (000) 000-0000, five (5) days prior to
commencing construction/rehabilitation of the track on the Premises.
9. (a) All alterations, additions, or betterments to the Premises, other than
the rails and the ties, shall upon construction, become the sole
property of Railroad.
(b) Industry agrees that Railroad shall not be required to furnish to
Industry any water, light, power or any other services in connection
with the use of the Premises.
10. Industry shall maintain the Premises in a condition satisfactory to
Railroad. Industry shall not cause, permit, commit, or maintain any waste
or nuisance in, on or about the Premises.
DEFINITION OF COST AND EXPENSE
11. (a) For the purpose of this Lease, "cost" or "costs" "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.
(b) All invoices are due thirty (30) days after the date of invoice. In
the event that Industry shall fail to pay any monies due to Railroad
within thirty (30) days after the invoice date, then Industry shall
pay interest on such unpaid sum from thirty (30) days after its
invoice date to the date of payment by Industry at an annual rate
equal to (i) the greater of (a) for the period January 1 through June
30, the prime rate last published in The Wall Street Journal in the
preceding December plus two and one-half percent (2 1/2%), and for the
period July 1 through December 31, the prime rate last published in
The Wall Street Journal in the preceding June plus two and one-half
percent (2 1/2%), or (b) twelve percent (12%), or (ii) the maximum
rate permitted by law, whichever is less.
RIGHT OF RAILROAD TO USE
12. Railroad excepts and reserves the right, to be exercised by Railroad and
any other parties who may obtain written permission or authority from
Railroad:
(a) to maintain, renew, use, operate, change, modify and relocate any
existing pipe, power, communication lines and appurtenances and other
facilities or structures of like character upon, over, under or across
the Premises;
(b) to construct, maintain, renew, use, operate, change, modify and
relocate any tracks or additional facilities or structures upon, over,
under or across the Premises; or
(c) to use the Premises in any manner as the Railroad in its sole
discretion deems appropriate; provided Railroad uses all commercially
reasonably efforts to avoid
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material interference with the use of the Premises by Industry for the
purpose specified in Section 2 above.
CLEARANCES
13. (a) Industry shall not place, permit to be placed, or allow to remain, any
permanent or temporary material, structure, pole, or other obstruction
within 8 1/2% feet laterally from the center (nine and one-half
(9-1/2) feet on either side of the centerline of curved track) or from
24 feet vertically from the top of the rail of Railroad's track
("Minimal Clearances"), provided that if any Legal Requirement
requires greater clearances than those provided for in this Section
13, then Industry shall strictly comply with such Legal Requirement
However, vertical or lateral clearances, which are less than the
Minimal Clearances but are in compliance with Legal Requirements will
not be a violation of this Section 13, so long as Industry strictly
complies with the terms of any such Legal Requirement.
(b) Railroad's operation over the track with knowledge of an unauthorized
reduced clearance will not be a waiver of the covenants of Industry
contained in this Section 13 or of Railroad's right to recover and be
indemnified and defended against such damages to property, or injury
to or death of persons, that may result therefrom.
(d) Industry shall not place or allow to be placed any freight car within
250 feet of either side of any at-grade crossings on the Premises.
LIABILITY
14. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, INDUSTRY SHALL RELEASE,
INDEMNIFY, DEFEND AND HOLD HARMLESS RAILROAD AND RAILROAD'S AFFILIATED
COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY,
"INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES,
FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,
SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND
REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR
OTHERWISE (COLLECTIVELY "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):
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(i) THIS LEASE, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS LEASE,
(iii) INDUSTRY'S OCCUPATION AND USE OF THE PREMISES,
(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE PREMISES
CAUSED BY, AGGRAVATED BY, OR CONTRIBUTED IN WHOLE OR IN
PART, BY INDUSTRY, OR
(v) ANY ACT OR OMISSION OF INDUSTRY OR INDUSTRY'S OFFICERS,
AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE
DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE
THEY CONTROL OR EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR
IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH
RESPECT TO WHICH INDUSTRY'S OBLIGATION TO INDEMNIFY THE INDEMNITEES
DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE.
(B) FURTHER, NOTWITHSTANDING THE LIMITATION IN SECTION 14(A), INDUSTRY
SHALL NOW AND FOREVER WAIVE ANY AND ALL CLAIMS, REGARDLESS WHETHER
BASED ON THE STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD
IS AN "OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" OF THE
PREMISES FOR PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. INDUSTRY
WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND
ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF THE INDEMNITEES.
INDUSTRY FURTHER AGREES THAT THE USE OF THE PREMISES AS CONTEMPLATED
BY THIS LEASE SHALL NOT IN ANY WAY SUBJECT RAILROAD TO CLAIMS THAT
RAILROAD IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF ENVIRONMENTAL
LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD THE
INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT SHALL
RAILROAD BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF THE
PREMISES.
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(C) INDUSTRY FURTHER AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED
NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE
INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED
AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL
EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF INDUSTRY OR
ANY OF ITS AGENTS, INVITEES, CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE
EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO
EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED
VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS,
INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER
INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE
CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
(D) Upon written notice from Railroad, Industry 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 Lease
for which Industry has an obligation to assume liability for and/or
save and hold harmless any Indemnitee. Industry shall pay all costs
incident to such defense, including, but not limited to, attorneys'
fees, investigators' fees, litigation and appeal expenses, settlement
payments, and amounts paid in satisfaction of judgments.
PERSONAL PROPERTY WAIVER
15. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT,
OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE RISK OF INDUSTRY
ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT
THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN PART TO THE NEGLIGENCE OF ANY
INDEMNITEE.
INSURANCE
16. Industry shall, at its sole cost and expense, procure and maintain during
the life of this Agreement, except as stated in subsection D below, the
following insurance coverage:
A. Commercial General Liability Insurance. This insurance shall contain
broad form contractual liability with a combined single limit of a
minimum of $5,000,000 each occurrence and an aggregate limit of at
least $ 10,000,000. Coverage must be purchased on a post 1998 ISO
occurrence or equivalent and include coverage for, but not limited to,
the following:
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- Bodily Injury and Property Damage
- Personal Injury and Advertising Injury
- Fire legal liability
- Products and completed operations
This policy shall also contain the following endorsements, which shall be
indicated on the certificate of insurance:
- It is agreed that any workers' compensation exclusion does not
apply to Railroad's payments related to the Federal Employers
Liability Act or a Railroad Wage Continuation Program or similar
programs and any payments made are deemed not to be either
payments made or obligations assumed under any Workers
Compensation, disability benefits, or unemployment compensation
law or similar law.
- The definition of insured contract shall be amended to remove any
exclusion or other limitation for any work being done within 50
feet of railroad property.
- Any exclusions related to the explosion, collapse and underground
hazards shall be removed.
No other endorsements limiting coverage may be included on the policy with
regard to the work being performed under this agreement.
B. Business Automobile Insurance. This insurance shall contain a combined
single limit of at least $1,000,000 per occurrence, and include
coverage for, but not limited to the following:
- Bodily injury and property damage
- Any and all vehicles owned, used or hired
C. Workers Compensation and Employers Liability insurance including
coverage for, but not limited to:
- Industry's statutory liability under the worker's compensation
laws of the state(s) in which the work is to be performed. If
optional under State law, the insurance must cover all employees
anyway.
- 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.
- All such coverage shall include coverage for the Federal
Employers Liability Act and include an alternate employer
endorsement naming Railroad as the alternate employer with
coverage for the Federal Employers Liability Act. The term
Alternate Employer as used herein and above is being used solely
as an insurance term of art. By Industry's actions of obtaining
insurance coverage as set forth above Industry is in no way
intending or evidencing an alternate or dual employment
relationship with Railroad. The parties agree: (1) Railroad has
no right to direct or control Industry's employees with respect
to the physical conduct or the performance of services; (2)
Railroad does not supervise, nor does it have the right to
supervise, details of Industry's employees' work or the manner in
which such work is accomplished; (3)
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Railroad retains no control over the details of the Industry's
employees' work; and (4) Railroad has no right to select, hire,
train or fire Industry's employees.
D. Industry shall, at its sole cost and expense, procure prior to
commencing and maintain during the entire period of any construction
or maintenance on the Track the following insurance coverage:
Railroad Protective Liability insurance naming only the Railroad as
the Insured with coverage of at least $5,000,000 per occurrence and
$10,000,000 in the aggregate. The policy shall be issued on a standard
ISO form CG 00 35 10 93 and include the following:
- Endorsed to include the Pollution Exclusion Amendment (ISO form
CG 28 31 10 93)
- Endorsed to include the Limited Seepage and Pollution
Endorsement.
- Endorsed to include Evacuation Expense Coverage Endorsement.
- No other endorsements restricting coverage may be added.
- The original policy must be provided to the Railroad prior to
performing any work or services under this Agreement
In lieu of providing a Railroad Protective Liability Policy, Industry may
participate in Railroad's Blanket Railroad Protective Liability Insurance
Policy available to Industry or its contractor. The limits of coverage are
the same as above. The cost is $_______.00.
- I ELECT to participate in Railroad's Blanket Policy for
activities commencing as of the date hereof (if any);
- I elect NOT to participate in Railroad's Blanket Policy for
activities commencing as of the date hereof (if any).
Other Requirements:
Where allowable by law, all policies (applying to coverage listed above) shall
contain no exclusion for punitive damages and certificates of insurance shall
reflect that no exclusion exists.
Industry agrees to waive its right of recovery against Railroad for all
claims and suits against Railroad. In addition, its insurers, through
policy endorsement, waive their right of subrogation against Railroad for
all claims and suits. The certificate of insurance must reflect waiver of
subrogation endorsement. Industry further waives its right of recovery, and
its insurers also waive their right of subrogation against Railroad for
loss of its owned or leased property or property under its care, custody or
control.
Industry's insurance policies through policy endorsement must include
wording, which states that the policy shall be primary and non-contributing
with respect to any insurance carried by Railroad. The certificate of
insurance must reflect that the above wording is included in evidenced
policies.
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All policy(ies) required above (excluding Workers Compensation and if
applicable, Railroad Protective) shall include a severability of interest
endorsement and shall name Railroad and Staubach Global Services - RR, Inc.
as an additional insured with respect to work performed under this
agreement. Severability of interest and naming Railroad and Staubach Global
Services - RR, Inc. as additional insureds shall be indicated on the
certificate of insurance.
If Industry elects to include any deductible, self-insured retention or
other financial responsibility for claims, Industry shall itself directly
cover, in lieu of insurance, any and all Railroad's liabilities that would
otherwise, in accordance with the provisions of this License, be covered by
Industry's insurance as if Industry elected not to include a deductible,
self-insured retention or other financial responsibility for claims.
Prior to commencing the Work, Industry shall furnish to Railroad an
acceptable certificate(s) of insurance including an original signature of
the authorized representative evidencing the required coverage,
endorsements, and amendments and referencing the contract audit/folder
number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to notify
Railroad in writing at least 30 days prior to any cancellation,
non-renewal, substitution or material alteration. This cancellation
provision shall be indicated on the certificate of insurance. In the event
of a claim or lawsuit involving Railroad arising out of this agreement,
Industry will make available any required policy covering such claim or
lawsuit.
Any insurance policy shall be written by a reputable insurance company
acceptable to Railroad 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 provide.
Industry represents that this License been thoroughly reviewed by
Industry's insurance agent(s)/broker(s), who have been instructed by
Industry to procure the insurance coverage required by this Agreement.
Allocated Loss Expense shall be in addition to all policy limits for
coverages referenced above.
Not more frequently than once every five years, Railroad may reasonably
modify the required insurance coverage to reflect then-current risk
management practices in the railroad industry and underwriting practices in
the insurance industry.
If any portion of the operation is to be subcontracted by Industry,
Industry shall require that the subcontractor shall provide and maintain
insurance coverages as set forth herein, naming Railroad as an additional
insured, and shall require that the subcontractor shall release, defend and
indemnify Railroad to the same extent and under the same terms and
conditions as Industry is required to release, defend and indemnify
Railroad herein.
Failure to provide evidence as required by this section shall entitle, but
not require, Railroad to terminate this Agreement immediately. Acceptance
of a certificate that does
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not comply with this section shall not operate as a waiver of Industry's
obligations hereunder.
The fact that insurance (including, without limitation, self-insurance) is
obtained by Industry shall not be deemed to release or diminish the
liability of Industry including, without limitation, liability under the
indemnity provisions of this License. Damages recoverable by Railroad shall
not be limited by the amount of the required insurance coverage.
For purposes of this section, Railroad shall mean "Burlington Northern Santa Fe
Corporation", "The Burlington Northern and Santa Fe Railway Company" and the
subsidiaries, successors, assigns, and affiliates of each.
ENVIRONMENTAL
17. (a) Industry shall strictly comply with all federal, state and local
environmental laws 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, CERCLA (collectively
referred to as the "Environmental Laws"). Industry shall not maintain
a treatment, storage, transfer or disposal facility, or underground
storage tank, as defined by Environmental Laws on the Premises.
Industry shall not release or suffer the release of oil or hazardous
substances, as defined by Environmental Laws on or about the Premises.
(b) Industry shall give Railroad immediate notice to Railroad's Resource
Operations Center at (000) 000-0000 of any release of hazardous
substances on or from the Premises, violation of Environmental Laws,
or inspection or inquiry by governmental authorities charged with
enforcing Environmental Laws with respect to Industry's use of the
Premises. Industry shall use the best efforts to promptly respond to
any release on or from the Premises. Industry also shall give Railroad
immediate notice of all measures undertaken on behalf of Industry to
investigate, remediate, respond to or otherwise cure such release or
violation.
(c) In the event that Railroad has notice from Industry or otherwise of a
release or violation of Environmental Laws on the Premises which
occurred or may occur during the term of this Lease, Railroad may
require Industry, at Industry'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 Railroad's
right-of-way.
(d) Industry shall promptly report to Railroad in writing any conditions
or activities upon the Premises which create a risk of harm to
persons, property or the environment and shall take whatever action is
necessary to prevent injury to persons or property arising out of such
conditions or activities; provided, however,
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that Industry's reporting to Railroad shall not relieve Industry of
any obligation whatsoever imposed on it by this Lease. Industry shall
promptly respond to Railroad's request for information regarding said
conditions or activities.
(e) Railroad may at its option prior to cancellation of this Lease,
require Industry to conduct an environmental audit of said Premises,
at Industry's sole cost and expense, to determine if any environmental
damage to said Premises has occurred during Industry's occupancy
thereof. The audit shall be conducted to Railroad's satisfaction and a
copy of the audit report shall promptly be provided to Railroad for
its review. Industry shall pay all expenses for any remedial action
that may be required as a result of said audit to correct any
environmental damage, and all necessary work shall be performed by
Industry prior to cancellation of this Lease.
ALTERATIONS
18. Industry may not make any alterations of the Premises or permanently affix
anything to the Premises or any buildings or other structures adjacent to
the Premises without Railroad's prior written consent.
NO WARRANTIES
19. RAILROAD'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN
THIS LEASE AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED WARRANTIES,
NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTEES HAVE BEEN MADE BY
RAILROAD OTHER THAN THOSE CONTAINED IN THIS LEASE. INDUSTRY HEREBY WAIVES
ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES
WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABELITY OR FITNESS FOR A
PARTICULAR PURPOSE.
QUIET ENJOYMENT
20. RAILROAD DOES NOT WARRANT ITS TITLE TO THE PROPERTY NOR UNDERTAKE TO DEFEND
INDUSTRY IN THE PEACEABLE POSSESSION OR USE THEREOF. NO COVENANT OF QUIET
ENJOYMENT IS MADE.
DEFAULT
21. (a) If Industry creates or maintains any condition, including without
limitation, any environmental condition, on or about the Premises,
which in Railroad's sole judgment interferes with or endangers the
operations of Railroad, or in case of any assignment or transfer of
this Lease by operation of law, Railroad may, at its
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option, terminate this Lease by serving five (5) days' notice in
writing upon Industry.
(b) Except as otherwise set forth in subparagraph (a) above, if Industry
defaults on any of the covenants or agreements of Industry contained
in this document, for a period of thirty (30) days following written
notice of such default by Railroad, Railroad may, at its option,
terminate this Lease on five (5) days' notice in writing to Industry.
Any waiver by Railroad of any default or defaults shall not constitute a
waiver of the right to terminate this Lease for any subsequent default or
defaults, nor shall any such waiver in any way affect Railroad's ability to
enforce any Section of this Lease. The remedy set forth in this Section 21
shall be in addition to, and not in limitation of, any other remedies that
Railroad may have at law or in equity.
LIENS
22. Industry 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 Industry on Premises. Railroad is hereby authorized to post any
notices or take any other action upon or with respect to Premises that is
or may be permitted by law to prevent the attachment of any such liens to
Premises; provided, however, that failure of Railroad to take any such
action shall not relieve Industry of any obligation or liability under this
Section 22 or any other Section of this Lease.
TERMINATION
23. This Lease may be terminated by either party, at any time, by serving
thirty (30) days' written notice of termination upon the other party. Upon
expiration of the time specified in such notice, this Lease and all rights
of Industry shall absolutely cease.
24. If Industry fails to surrender to Railroad the Premises, upon any
termination of this Lease, all liabilities and obligations of Industry
hereunder shall continue in effect until the Premises are surrendered.
Termination shall not release Industry from any liability or obligation,
whether of indemnity or otherwise, resulting from any events happening
prior to the date of termination.
ASSIGNMENT/SUBLETTING
25. Neither Industry, nor the heirs, legal representatives, successors or
assigns of Industry, nor any subsequent assignee, shall sublease the
Premises nor assign or transfer this Lease or any interest herein, without
the prior written consent and approval of Railroad, which may be withheld
in Railroad's sole discretion.
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NOTICES
26. Any notice required or permitted to be given hereunder by one party to the
other shall be in writing and the same shall be given and shall be deemed
to have been served and given if (i) placed in the United States mail,
certified, return receipt requested, or (ii) deposited into the custody of
a nationally recognized overnight delivery service, addressed to the party
to be notified at the address for such party specified below, or to such
other address as the party to be notified may designate by giving the other
party no less than thirty (30) days' advance written notice of such change
in address.
If to Railroad: Staubach Global Services - RR, Inc.
0000 Xxx Xxxx Xxxxx, Xxxxx 000
Xx. Xxxxx, XX 00000
Attn: Track Agreements
If to Industry: Red Trail Energy L.L.C.
00xx Xxxxxx Xxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
SURVIVAL
27. Neither termination nor expiration will release either party from any
liability or obligation under this Lease, 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
right-of-way is restored to its condition as of the Effective Date.
RECORDATION
28. It is understood and agreed that this Lease shall not be placed on public
record.
APPLICABLE LAW
29. All questions concerning the interpretation or application of provisions of
this Lease shall be decided according to the laws of the State of North
Dakota.
SEVERABILITY
30. To the maximum extent possible, each provision of this Lease shall be
interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Lease 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
Lease.
[DIAGRAM]
[DIAGRAM]
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INTEGRATION
31. This Lease is the full and complete agreement between Railroad and Industry
with respect to all matters relating to lease of the Premises, and
supersedes any and all other agreements between the parties hereto relating
to lease of the Premises. However, nothing herein is intended to terminate
any surviving obligation of Industry or Industry's obligation to defend and
hold Railroad harmless in any prior written agreement between the parties.
MISCELLANEOUS
32. In the event that the Industry consists of two of more parties, all
covenants and agreements of Industry herein contained shall be the joint
and several covenants and agreements of such parties.
33. The waiver by Railroad of the breach of any provision herein by Industry
shall in no way impair the right of Railroad to enforce that provision for
any subsequent breach thereof.
IN WITNESS WHEREOF, this Lease has been duly executed, in duplicate, by the
parties hereto as of the day and year first above written.
THE BURLINGTON NORTHERN AND SANTA
FE RAILWAY COMPANY
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
Manager - Land Revenue Management
RED TRAIL ENERGY L.L.C.
X.X. Xxx 00
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Title: Red Trail Energy, President
Xxxxxxx X. Xxxx
