Contract No. __________________
THE NEBRASKA GAME AND PARKS COMMISSION
NEDAK TRACK LEASE AGREEMENT
THIS TRACK LEASE AGREEMENT ("Agreement") made as of this 19th day of June, 2007
("Effective Date"), by and between THE NEBRASKA GAME AND PARKS COMMISSION, a
State Agency (hereinafter called "NGPC"), and NEDAK ETHANOL, LLC, a Nebraska
limited liability company (hereinafter called "NEDAK").
WHEREAS, NEDAK desires to lease certain land, and to construct, maintain and
operate upon it, certain railroad trackage and appurtenances thereto. Said land,
referred to herein as "Track Area," is legally described in and also depicted on
the Plot Plan in Exhibit "A" attached hereto and incorporated herein and located
at or near X'Xxxxx, County of Xxxx, State of Nebraska. NEDAK wishes to construct
a private (not common carrier subject to the entry or exit jurisdiction of the
Surface Transportation Board pursuant to the ICC Termination Act or any other
federal or state statute or regulation) rail spur and/or siding upon said land
in accordance with the plans contained on Exhibit "B" attached hereto and
incorporated herein ("Plans") to facilitate the transportation by rail of
ethanol, grain, corn, and other commodities or products related to, produced at
or useful in connection with the construction, reconstruction, ownership and
operation of an ethanol production plant or any facility functionally related
thereto (collectively the "Products") which NEDAK is constructing and plans to
operate in or near Xxxxxxxx, County of Xxxx, State of Nebraska (the "Plant");
and
WHEREAS, NGPC agrees to lease the Track Area to NEDAK solely for use by NEDAK as
a private rail spur track for the purposes and subject to the limitations above
recited; and
WHEREAS, both parties desire to contract with each other in accordance with the
terms set forth below.
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NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree to the lease, maintenance and operation of the Track Area on the
following terms and conditions:
LEASE OF TRACK
1. Upon the terms and conditions set forth herein, NGPC shall lease to NEDAK,
and NEDAK shall accept and lease from NGPC the Track Area. The lease
granted by NGPC to NEDAK by this Agreement is expressly made subject to all
rights, interests, and estates of third parties in and to the Track Area
that are set forth as "Permitted Exceptions" on Exhibit D attached hereto
and made a part hereof.
PERMITTED USE
2. (a) NEDAK and its employees, agents, permitted assignees or successors or
their agents, designees, contractors and subcontractors, shall have the
right to use the Track Area for the construction and location of a railroad
bed, trackage, and related facilities and equipment (including utilities)
as described on the Plans and as otherwise described herein. NEDAK shall
have a temporary easement, expiring no later than eighteen months from the
Effective Date, over the area depicted on the Plot Plan and described as
"Easement `A'" in Exhibit "C" ("Cowboy Trail") attached hereto and made a
part hereof for purposes of constructing the railroad bed, trackage and
related facilities. Notwithstanding anything else in this agreement,
construction of the trackage shall not occur until NEDAK shall have
substantially completed at its expense, and in a manner acceptable to NGPC,
the relocation of the pedestrian/bicycle trail located on the Cowboy Trail
as of the Effective Date and construction of a fence between the relocated
trail and the Track Area, in accordance with the Plans (the "Trail
Relocation"). The parties anticipate that such relocation shall be
substantially completed on or about August 31, 2007.
(b) NEDAK and its agents, designees and contractors, shall have the right
to (i) transport over the Track Area in railroad tank cars or other
appropriate rail cars any Products, at all times, whether manufactured at
the Plant or any future NEDAK ethanol plant, during construction or
reconstruction, ownership or operation; and (ii) conduct any related car
storage of the Products over or on the Track Area (items (i) and (ii) of
this subsection 2(b) shall collectively constitute the "Railroad
Transport").
(c) Notwithstanding any other provision in this Lease, neither NEDAK, its
successor, nor any railroad operating company providing railroad services
on or over the Track Area (i) shall hold itself out to provide common
carrier railroad services on or over the Track Area, nor (ii) serve any
shipper other than NEDAK (or its successor), over the Track Area. In the
event NEDAK, its successor, or any railroad operating company providing
railroad operating services on or over the Track Area hold itself out as a
common carrier, or seeks to provide rail
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transportation services to any shipper other than NEDAK (or its successor),
then this lease shall automatically terminate. NEDAK (or its successor),
shall be liable for, and responsible to pay, all attorneys' fees and other
expenses and costs incurred by or on behalf of NGPC associated with any
litigation or proceeding required to enforce the termination, including any
proceedings before the Surface Transportation Board. In the event NEDAK or
its successor wishes to provide or to permit common carrier services over
the Track Area, NEDAK or its successor shall first obtain the approval in
writing of NGPC to an amendment to this lease so authorizing such service
pursuant to a modified certificate of public convenience and necessity (the
regulations governing which are currently codified at 49 C.F.R. ss. 1150.21
et seq.). Any such certificate must contain provisions acceptable to NGPC
so as to ensure faithful performance of the lease, as amended. NGPC may
withhold approval of a lease amendment for any reason.
MAINTENANCE OF TRACK
3. (a) NEDAK shall be solely responsible for any and all construction,
maintenance, and operation of railroad trackage on or over the Track Area.
Maintenance for the purpose of this Agreement includes, but is not limited
to, providing proper drainage along the Track Area, keeping the Track Area
free and clear of trail, debris, snow, ice, vegetation, structures, and
other obstacles, maintaining any grade crossing warning devices, stop
signs, gates, fences or barriers, roadway construction, track drainage
facilities, lighting, track signals and signal maintenance. In so
maintaining its trackage, NEDAK shall use its best efforts to not increase
NGPC's costs for maintaining portions of the Cowboy Trail not leased to
NEDAK, and hereby agrees to reimburse the NGPC for any increase in costs
related to the Track Area leased to NEDAK.
(b) NEDAK shall at all times, and at its sole risk and expense, maintain,
or cause to be maintained, the Track Area in compliance with all applicable
Legal Requirements as defined below.
(c) In the event NGPC has actual knowledge that NEDAK operates or is
operating or has operated over the Track Area in a fashion contrary to this
Agreement, such situation shall not be deemed to be, nor deemed to be
evidence of, a waiver by NGPC of NEDAK's obligations contained herein or of
NGPC's right to recover for or be indemnified and defended against any and
all damages to property, and injury to or death of persons that may result
therefrom.
TERM
4. This Agreement shall be effective upon signing and shall remain effective
for a period of ten (10) years. This Agreement shall automatically renew
for additional ten year terms unless any one party gives written notice of
its intent not to renew to the other parties at least 9 calendar months
prior to the date of expiration.
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RENTAL
5. (a) NEDAK shall pay to NGPC an initial processing fee of $10,000 to cover
costs associated with formulation of this Agreement and initial review of
trail and facility plans. Such fee shall be non-refundable and shall be due
no later than ten (10) days following full execution of this Agreement. If
such fee is not paid, then this Agreement shall be null and void and of no
effect.
(b) NEDAK shall pay to NGPC an annual rental fee of $10,000 each year for
the period of the initial term. If this Agreement is renewed as provided in
the preceding section, the annual rental fee for the new term shall remain
the same but adjusted for inflation by the greater of the proportionate
increase of the following two indices: (i) Consumer Price Index for All
Urban Consumers (CPI-U) as maintained by the United States Government, with
January 2007 as the base [the reference base level is 202.416
(1982-84=100)] and the last available month preceding rental adjustment as
the comparison; and (ii) the average price of West Texas Intermediate (WTI)
spot market price Cushing OK, FOB, in dollars per barrel, with the year
2006 as the base level, and the last available 12 month period preceding
rental adjustment as the comparison, as maintained by the Energy
Information Administration, U.S. Department of Energy.
(c) The fiscal year for which rental is due shall be based on the annual
anniversary date of the Effective Date. Payment in full shall be made
within thirty (30) days after the anniversary date. NEDAK shall be in
default of this Agreement in the event that any payment is more than thirty
(30) days late.
(d) In the event that NEDAK shall fail to pay any monies due to NGPC when
payment is due, then NEDAK shall pay interest on such unpaid sum from the
payment due date to the date of payment by NEDAK 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) ten
percent (10%), or (ii) the maximum rate permitted by law, whichever is
less.
COMPLIANCE WITH LAWS
6. (a) NEDAK shall be responsible for obtaining, without expense to NGPC, any
and all real property rights in addition to this Agreement required for
rail construction and operation on the Track Area, as well as all public
authority and permission, including applicable permits, for the maintenance
and operation of rail and any other NEDAK facilities on the Track Area,
provided NEDAK may not
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obligate NGPC in any way therewith contrary to the terms of this Agreement
or without the prior written consent from NGPC.
(b) NEDAK further agrees that it will exercise its rights and fulfill its
obligations hereunder in full compliance with all laws, statutes,
regulations, ordinances, orders, covenants and restrictions (collectively,
"Legal Requirements") relating to the use of the Track Area.
OPERATION OF TRACK
7. (a) In the event the Track Area is used for receiving, forwarding, or
storing hazardous materials as defined by any federal, state, or local
environmental law or regulation, NEDAK agrees to comply with all applicable
Legal Requirements concerning the same.
(b) In the event NEDAK desires or is required to install adjacent to or
within the Track Area any gates, fencing, facilities or safety devices
("Additional Structures") other than those provided for in the Plans, NEDAK
shall first submit in writing to NGPC the plans and specifications for such
Additional Structures, and secure written approval from NGPC, which
approval will not be unreasonably withheld or delayed, before construction
of any Additional Structures by NEDAK; provided, installation of Additional
Structures does not include replacement or repair of structures or
facilities described in the Plans.
(c) NEDAK shall construct, install, use, maintain, and repair the Track
Area at its sole risk and expense, in accordance with railroad industry
standards. NEDAK, during the installation, construction, use, operation,
renewal, relocation, modification, maintenance and repair of the Track
Area, shall exercise commercially reasonable diligence to prevent damage to
the property of NGPC or injury to its agents, employees, invitees and
contractors. NEDAK shall use commercially reasonable efforts to ensure that
its construction, installation, use, maintenance, and repair of the Track
Area will not pose danger to or interfere with the safe operations of the
Cowboy Trail for NGPC or its employees or invitees. Except in unavoidable
emergencies, NEDAK shall not obstruct use of the Cowboy Trail adjacent to
the Track Area or elsewhere without the prior written consent of NGPC,
which consent may not be unreasonably withheld.
(d) NEDAK agrees that NGPC shall not be required to furnish to NEDAK any
water, light, power or any other services in connection with the use of the
Track Area.
(e) In the event the public authority having jurisdiction thereover orders
the separation of the grade of the Track Area and any street, road,
highway, other rail line or the like, or requires installation of gates or
signals, NEDAK shall be solely responsible for all such costs and NGPC
shall not be obligated to contribute to, or bear any costs associated
therewith.
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DEFINITION OF COST AND EXPENSE
8. For the purpose of this Agreement, "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.
RIGHT OF NGPC TO USE
9. All rights granted to NEDAK hereunder are subject and subordinate to the
prior and continuing right of the NGPC, without liability to NEDAK or any
other party for compensation or damages thereto: (a) to use all portions of
the Cowboy Trail other than the Track Area for any lawful purpose; and (b)
to allow to be constructed upon all portions of the Cowboy Trail other than
the Track Area such other facilities and to use such portions in any manner
as NGPC in its sole discretion deems appropriate; provided such use under
section 9 shall not interfere with NEDAK's use of said Track Area as
described herein.
CLEARANCES
10. (a) NEDAK 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 Area) or from 24 feet
vertically from the top of the rail of said Track Area ("Minimal
Clearances"), provided that if any Legal Requirement requires greater
clearances than those provided for in this Section 10, then NEDAK 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 10, so long
as NEDAK strictly complies with the terms of any such Legal Requirement.
(b) NGPC's operation over the Track Area with knowledge of an unauthorized
reduced clearance will not be a waiver of the covenants of NEDAK contained
in this Section 10 or of NGPC's right to recover for and be indemnified and
defended against such damages to property, and injury to or death of
persons, that may result therefrom.
(c) NEDAK shall not place or allow to be placed any freight car within 250
feet of either side of any at-grade crossings on the Track Area; provided
that NEDAK shall be allowed to place freight cars within 250 feet of either
side of the private drive referenced in section 5(b) of the conditional use
permit attached hereto as Exhibit "E" and incorporated herein by reference.
PUBLIC ASSESSMENTS
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11. NEDAK shall timely pay all compensation, assessments and levies required at
any time by a municipality, public authority, corporation, or person
related to maintaining and operating on or over the Track Area. In the
event that this Agreement results in the imposition of, or an increase in,
any tax or assessment for which NGPC is responsible, then NEDAK shall pay
that amount within fifteen (15) days of receipt of an invoice for same from
NGPC. NEDAK shall not cause or permit any liens to be filed against the
Track Area or any NGPC property. In the event any such liens are filed,
NEDAK shall cause such liens to be released within fifteen (15) days.
Notwithstanding any other provision in this Agreement, NEDAK's breach of
this paragraph shall permit NGPC in its sole discretion to terminate this
Agreement; provided NGPC first gives NEDAK notice of termination and an
opportunity for NEDAK to cure the breach within thirty (30) days of such
notice; provided, however, in the event that NEDAK is unable to cure the
breach but has commenced the cure of such breach within such 30-day period,
the above cure period shall be tolled for as long as NEDAK continues its
diligent efforts to cure the breach.
LIABILITY
12. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, NEDAK SHALL INDEMNIFY, DEFEND
AND HOLD HARMLESS NGPC AND THE STATE OF NEBRASKA AND ITS VARIOUS AGENCIES
AND INSTRUMENTALITIES, 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):
(i) THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS ENVIRONMENTAL
PROVISIONS,
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS AGREEMENT,
(iii) NEDAK'S OCCUPATION AND USE OF NGPC'S PROPERTY OR THE USE OF AND
OPERATION BY NGPC UPON NEDAK'S PROPERTY,
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(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE TRACK OR NGPC'S
PROPERTY CAUSED BY, AGGRAVATED BY, OR CONTRIBUTED TO, IN WHOLE OR IN
PART, BY NEDAK,
(v) THE ENVIRONMENTAL CONDITION AND STATUS OF NEDAK'S FACILITIES, OR
(vi) ANY ACT OR OMISSION OF NEDAK OR NEDAK'S OFFICERS, AGENTS,
INVITEES, EMPLOYEES, OR CONTRACTORS (including any rail carrier or
trucking company serving NEDAK), OR ANYONE DIRECTLY OR INDIRECTLY
EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR EXERCISE CONTROL
OVER, THE ONLY LIABILITIES WITH RESPECT TO WHICH NEDAK'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 12(a), NEDAK NOW AND
FOREVER WAIVES ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE STRICT
LIABILITY, NEGLIGENCE OR OTHERWISE, THAT NGPC IS AN "OWNER", "OPERATOR",
"ARRANGER", OR "TRANSPORTER" OF NEDAK'S FACILITIES OR TRACKAGE FOR THE
PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL LAWS. NEDAK WILL DEFEND,
INDEMNIFY, AND HOLD THE INDEMNITEES HARMLESS FROM ANY AND ALL SUCH CLAIMS.
NEDAK FURTHER AGREES THAT THE USE OF THE TRACK AS CONTEMPLATED BY THIS
AGREEMENT SHALL NOT IN ANY WAY SUBJECT NGPC TO CLAIMS THAT NGPC IS A
RESPONSIBLE LANDOWNER FOR PURPOSES OF ENVIRONMENTAL LAWS AND EXPRESSLY
AGREES TO INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES HARMLESS FOR ANY AND
ALL SUCH CLAIMS UNLESS SPECIFIED HEREIN. IN NO EVENT SHALL NGPC BE
RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF NEDAK'S FACILITIES OR FOR
THE TRACK UNDER THIS AGREEMENT, PROVIDED THAT THE INDEMNITY IN THIS
PARAGRAPH 12(B) DOES NOT APPLY TO LIABILITIES TO THE EXTENT PROXIMATELY
CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE.
(c) NEDAK FURTHER AGREES 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 NEDAK OR ANY OF ITS AGENTS,
INVITEES, CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE EMPLOYEES OF ANY
INDEMNITEE OR OTHERWISE. THIS INDEMNITY
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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,
PROVIDED THAT THE INDEMNITY IN THIS PARAGRAPH 12(C) DOES NOT APPLY TO
LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF AN INDEMNITEE.
(d) Unless specified herein, upon written notice from NGPC, NEDAK 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 Agreement
for which NEDAK has an obligation to assume liability for and/or save and
hold harmless any Indemnitee. NEDAK 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
13. ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES, EQUIPMENT,
OR RELATED MATERIALS UPON THE TRACK WILL BE AT THE RISK OF NEDAK ONLY, AND
NO INDEMNITEE WILL BE LIABLE FOR ANY DAMAGE THERETO OR THEFT THEREOF,
UNLESS SUCH DAMAGE IS PROXIMATELY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF AN INDEMNITEE.
14. NEDAK shall, at its sole cost and expense, procure and maintain during the
life of this Agreement, and also sufficient to address the provisions of
section 12 of this Agreement both during the life of and following
termination of the Agreement and the existence of NEDAK as a business
entity, except as otherwise stated in subsection 14(d) below, the following
insurance coverage (NEDAK shall also be obligated to cause NGPC to be named
as co-insured under all applicable policies, shall provide that NGPC must
receive 30 days advance notice in writing prior to termination of any such
coverage before such termination can become effective, and shall furnish
certificates to NGPC evincing compliance with these requirements prior to
commencement of any relocation or construction activities under this
Agreement):
(a) Commercial General Liability insurance. This insurance shall contain
broad form contractual liability with a combined single limit of a
minimum of $2,000,000 each occurrence and an aggregate limit of at
least $4,000,000. Coverage must be purchased on a post 1998 ISO
occurrence
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or equivalent and include coverage for, but not limited to, all of the
following:
(i) Bodily Injury and Property Damage
(ii) Personal Injury and Advertising Injury
(iii) Fire legal liability
(iv) Products and completed operations This policy shall also contain
the following endorsements, which shall be indicated on the
certificate of insurance:
(v) It is agreed that any workers' compensation exclusion does not
apply to NGPC payments related to the Federal Employers Liability Act
or a NGPC 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.
(vi) The definition of insured contract shall be amended to remove any
exclusion or other limitation for any work being done within 50 feet
of NGPC property.
(vii) 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:
(i) Bodily injury and property damage
(ii) Any and all vehicles owned, used or hired
(c) Workers Compensation and Employers Liability insurance including
coverage for, but not limited to:
(i) NEDAK'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.
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(ii) 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.
(iii) All such coverage shall include coverage for the Federal
Employers Liability Act and include an alternate employer endorsement
naming NGPC 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 NEDAK's
actions of obtaining insurance coverage as set forth above NEDAK is in
no way intending or evidencing an alternate or dual employment
relationship with NGPC. The parties agree: (1) NGPC has no right to
direct or control NEDAK's employees with respect to the physical
conduct or the performance of services; (2) NGPC does not supervise,
nor does it have the right to supervise, details of NEDAK's employees'
work or the manner in which such work is accomplished; (3) NGPC
retains no control over the details of the NEDAK's employees' work;
and (4) NGPC has no right to select, hire, train or fire NEDAK's
employees.
(d) All risks property insurance covering all of NEDAK's property
including property in the care, custody or control of NEDAK. Coverage
shall include the following:
(i) Shall provide that in respect of the interest of NGPC the
insurance shall not be invalidated by any action or inaction of NEDAK
or any other person and shall insure the respective interests of NGPC
as they appear, regardless of any breach or violation of any warranty,
declaration or condition contained in such policies by NEDAK or any
other person.
(ii) Include a standard loss payable endorsement naming NGPC as the
loss payee as its interests may appear.
(e) Other Requirements:
(i) NEDAK agrees to waive its right of recovery against NGPC for all
claims and suits against NGPC, unless due to the gross negligence or
willful misconduct of NGPC. In addition, NEDAK's insurers, through
policy endorsement, waive their right of subrogation against NGPC for
all claims and suits. The certificate of insurance must reflect waiver
of subrogation endorsement. NEDAK further waives its right of
recovery, and its insurers also waive their right of subrogation
against NGPC for loss of its owned or leased property or property
under its care, custody or control.
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(ii) NEDAK'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 NGPC. The
certificate of insurance must reflect that the above wording is
included in evidenced policies.
(iii) All policy(ies) required above (excluding Workers Compensation
and if applicable, NGPC Protective) shall include a severability of
interest endorsement and shall name NGPC as an additional insured with
respect to work performed under this agreement. Severability of
interest and naming NGPC as additional insured shall be indicated on
the certificate of insurance.
(iv) Prior to commencing any relocation or construction activities,
NEDAK shall furnish to NGPC 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 NGPC 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 NGPC arising out of this contract, NEDAK will make available
any required policy covering such claim or lawsuit.
(v) Any insurance policy shall be written by a reputable insurance
company acceptable to NGPC 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.
NEDAK represents that this Agreement has been thoroughly reviewed by
NEDAK's insurance agent(s)/broker(s), who have been instructed by NEDAK to
procure the insurance coverage required by this Agreement.
Not more frequently than once every ten (10) years, NGPC may reasonably
modify the required insurance coverage to reflect then-current risk
management practices of NGPC and to take into account any changes in
underwriting practices affecting the insurance necessary or prudent for
NGPC or available for operations such as NEDAK.
Failure to provide evidence of insurance as required by this section shall
entitle, but not require, NGPC to terminate this Agreement immediately.
Acceptance of a certificate that does not comply with this section shall
not operate as a waiver of NEDAK's obligations hereunder.
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The fact that insurance (including, without limitation, self-insurance) is
obtained by NEDAK shall not be deemed to release or diminish the liability
of NEDAK including, without limitation, liability under the indemnity
provisions of this Agreement. Damages recoverable by NGPC shall not be
limited by the amount of the required insurance coverage.
For purposes of this section, NGPC shall include the State of Nebraska
including all agencies or instrumentalities thereof.
ENVIRONMENTAL
15. (a) NEDAK shall comply with all federal, state and local environmental
laws and regulations in its use of the Track Area, 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"). NEDAK shall not maintain a treatment, storage,
transfer or disposal facility, or underground storage tank, as defined
by Environmental Laws on, under, or within the Minimal Clearances of
Track Area. NEDAK shall not release or suffer the release ===== of oil
or hazardous substances, as defined by Environmental Laws on, under or
within the Minimal Clearances of the Track Area.
(b) NEDAK shall give NGPC immediate notice to NGPC of any release of
hazardous substances on or from the Track Area, violation of
Environmental Laws, or inspection or inquiry by governmental
authorities charged with enforcing Environmental Laws with respect to
NEDAK's use of the Track Area. NEDAK shall use commercially reasonable
efforts to promptly respond to any release on or from the Track Area.
NEDAK also shall give NGPC immediate notice of all measures undertaken
on behalf of NEDAK to investigate, remediate, respond to or otherwise
cure such release or violation.
(c) Except as specified herein, in the event that NGPC has notice from
NEDAK or otherwise of a release or violation of Environmental Laws on
the Track Area which occurred or may occur during the term of this
Agreement, NGPC may require NEDAK, at NEDAK's sole risk and expense,
to take timely measures to investigate, remediate, respond to or
otherwise cure such release or violation affecting the Plant, Track
Area or NGPC's right-of-way over the Cowboy Trail.
(d) NEDAK shall promptly report to NGPC in writing any conditions or
activities upon the Track Area 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, that NEDAK's reporting to
NGPC shall not relieve NEDAK of any obligation whatsoever imposed on
it by this Agreement. NEDAK shall promptly respond to NGPC's request
for information regarding said conditions or activities.
13
(e) NGPC represents and warrants to NEDAK that NGPC has no knowledge,
actual or imputed, of the existence of any Hazardous Substances on the
Cowboy Trail as of the Effective Date. NGPC shall indemnify, defend
(by counsel acceptable to NEDAK) and hold harmless NEDAK and each of
NEDAK's directors, officers, employees, agents, successors, and
assigns, from and against any an all claims, liabilities, penalties,
fines, judgments, forfeitures, losses, cleanup, remediation,
detoxification, costs or expenses (including reasonable attorney's
fees, consultants' fees, and expert fees) for the death of or injury
to any person or damage to any property whatsoever, arising from or
caused in whole or in part, directly or indirectly, by the presence
in, on, under, or about the Track Area, or any discharge or release in
or from the Track Area, of any Hazardous Substances, except to the
extent that any such presence, discharge, or release is caused by
NEDAK's activities on the Track Area. "Hazardous Substances" is
defined as any pollutant, toxic or hazardous waste or substance,
petroleum product, oil, asbestos, PCB or other substance regulated,
prohibited, restricted or controlled by law and/or regulations related
to protection of health or the environment or posing a risk to the
health and safety of a person.
ALTERATIONS
16. NEDAK may not make any alterations of the Track Area or permanently
affix anything to the Track Area except as provided in the Plans or
herein, or make any alterations to any other property belonging to
NGPC except as provided herein, without NGPC's prior written consent
which consent shall not be unreasonably withheld or delayed, provided
that this section 16 shall not apply to repair or replacement of
structures or facilities described in the Plans.
NO WARRANTIES
17. NGPC'S DUTIES AND WARRANTIES ARE LIMITED TO THOSE EXPRESSLY STATED IN
THIS AGREEMENT AND SHALL NOT INCLUDE ANY IMPLIED DUTIES OR IMPLIED
WARRANTIES, NOW OR IN THE FUTURE. NO REPRESENTATIONS OR WARRANTIES
HAVE BEEN MADE BY NGPC OTHER THAN THOSE CONTAINED IN THIS AGREEMENT.
NEDAK HEREBY WAIVES ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH
RESPECT TO THE TRACK WHICH MAY EXIST BY OPERATION OF LAW OR IN EQUITY,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY,
HABITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
QUIET ENJOYMENT
18. NGPC hereby represents, covenants and agrees (a) that NGPC has full
right and power to execute and perform this Agreement subject to
approval by the Board of Commissioners, and (b) that if NEDAK shall
perform all the covenants and agreements herein stipulated to be
performed on NEDAK's part, NEDAK shall at
14
all times during the continuance hereof have the peaceable and quiet
enjoyment and possession of the Track Area without any interruption
from NGPC or any person or persons lawfully claiming the Track Area or
Cowboy Trail.
DEFAULT
19. (a) If NEDAK creates or maintains any condition, including without
limitation, any environmental condition, on or about the Track Area,
which in NGPC's reasonable judgment interferes with or endangers =====
the operations of NGPC, or in case of any assignment or transfer of
this Agreement by operation of law, NGPC may, at its option, terminate
this Agreement by serving ten (10) days' notice in writing upon NEDAK,
after first giving NEDAK thirty (30) days' written notice and
opportunity to cure, provided that if NEDAK in good faith within said
thirty (30) days commence to correct such breach, and diligently
proceed therewith to complete, then NEDAK shall not be considered in
default.
(b) Except as otherwise set forth in subparagraph 19(a) above or
elsewhere in this Agreement, if NEDAK defaults on any of the covenants
or agreements of NEDAK contained in this document, NGPC may, at its
option, terminate this Agreement on ten (10) days' notice in writing
to NEDAK, after first giving NEDAK thirty (30) days' written notice
and opportunity to cure, provided that if NEDAK in good faith within
said thirty (30) days commence to correct such breach, and diligently
proceed therewith to complete, then NEDAK shall not be considered in
default.
(c) Any waiver by NGPC of any default or defaults shall not constitute
a waiver of the right to terminate this Agreement for any subsequent
default or defaults, nor shall any such waiver in any way affect
NGPC's ability to enforce any Section of this Agreement. The remedies
set forth in this Section 19 shall be in addition to, and not in
limitation of, any other remedies that NGPC may have at law or in
equity.
LIENS
20. NEDAK 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 NEDAK on Track Area. NGPC is hereby authorized
to post any notices or take any other action upon or with respect to
Track Area that is or may be permitted by law to prevent the
attachment of any such liens to Track Area; provided, however, that
failure of NGPC to take any such action shall not relieve NEDAK of any
obligation or liability under this Section 20 or any other Section of
this Agreement.
TERMINATION
15
21. (a) In addition to all other remedies available at law or in equity,
NGPC may, without incurring any liability to NEDAK, terminate this
Agreement and discontinue the maintenance and operation of the Track
Area and remove the NGPC Track Area, in the event of any of the
following contingencies:
(i) If NEDAK fails to complete (A) construction of trackage on
the Track Area or (B) construction of any relocated portion of
the Cowboy Trail within eighteen (18) months of the Effective
Date of this Agreement, then NGPC at NGPC's sole discretion may
terminate this Agreement, effective upon thirty (30) days'
written notice by NGPC that the Plans have not been substantially
complied with.
(ii) If NEDAK completes construction but then fails to employ the
Track Area for rail transport for any period of twelve (12)
continuous months, NGPC at its option and in its sole discretion
may terminate this Agreement, effective immediately.
(iii) If the common carrier railroad to which the trackage on the
Track Area is connected is authorized by competent public
authority to abandon its line to which said trackage is
connected, NGPC may terminate this Agreement effective
immediately.
(b) NEDAK may terminate this Agreement, at any time, by serving thirty
(30) days' written notice of termination upon NGPC, provided however
that such termination shall not relieve NEDAK of any obligations or
liabilities arising under this Agreement, nor require NGPC to refund
any rent or fees paid.
(c) Upon the expiration or termination of this Agreement as provided
herein, NEDAK shall, at its sole cost and expense, remove any
facilities or improvements upon, over, or under the Track Area and
restore the Cowboy Trail to substantially the state in which it was on
the Effective Date of this Agreement. In the event NEDAK shall fail
within thirty (30) days after the date of such termination to make
such removal and restoration, the NGPC may, at its option, remove the
facilities or improvements or otherwise restore the Cowboy Trail and
in such event NEDAK shall, within thirty (30) days after receipt of a
xxxx therefor, reimburse NGPC for any reasonable costs incurred. Prior
to the inception of construction, NEDAK shall post a bond or other
security acceptable to NGPC in an amount no less than $50,000.00 to
ensure performance of the obligations set forth above. This amount
shall be adjusted for inflation at each lease renewal in accordance
with the CPI-U methodology set forth in section 2, paragraph (b).
(d) NEDAK hereby agrees to waive and release all claims, rights, and
causes of action that NEDAK has, may have, or may assert against NGPC
because of the discontinuance of operation and removal of the NGPC
Track Area as provided in this Section 21 of this Agreement.
16
ASSIGNMENT/SUBLETTING
22. This Agreement will inure to the benefit of and be binding upon the
successors and assigns of the parties hereto. Either party hereto may
assign this Agreement; provided, however, that such assignments will
not relieve the assignor of any of its rights or obligations under
this Agreement. Without limiting the generality of the foregoing,
NEDAK shall have the right to collaterally assign or pledge, or create
a security interest in, this Agreement, and the rights of NEDAK
hereunder (any of the foregoing, collectively, a "Leasehold
Encumbrance") in favor of an institutional lender or lenders providing
construction or permanent financing for the development of the Plant,
and facilities related thereto. In the event of any Leasehold
Encumbrance, NEDAK shall give written notice thereof to NGPC,
whereupon, and notwithstanding any other term, covenant or condition
herein:
(a) Any notices of default, and further communications regarding
default, delivered by NGPC to NEDAK shall be simultaneously
furnished to the holder of the Leasehold Encumbrance ("Lender");
(b) NGPC shall afford the Lender an opportunity to cure such default,
and shall accept such cure, whether monetary or non-monetary,
from Lender; and in the case of any non-monetary default, shall
afford Lender an additional thirty (30) days from any period
otherwise allowed to NEDAK to cure such default hereunder;
(c) In the event Lender forecloses or takes title to NEDAK's interest
hereunder, through the exercise of any right or remedy under any
document evidencing or securing its Leasehold Encumbrance, or at
law or in equity, NGPC shall recognize Lender as the substitute
lessee under this Agreement, upon all of the terms, covenants and
conditions hereof, free and clear of any unperformed obligations
by NEDAK hereunder; and
(d) Upon such foreclosure or other acquisition of title to NEDAK's
interest hereunder, the Lender shall have the right, in its
discretion, to sell, transfer or assign its interest in this
Agreement to any third party who, in Lender's reasonable
judgment, be capable of owning, managing and operating the Plant
and its appurtenant facilities, including the Track Area, in the
manner contemplated hereunder.
NOTICES
23. 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.
17
For NEDAK: For NGPC:
Attention: Xxxxxx Xxxxxxxxx Realty Division
00000 Xxxxxxxxx Xxxx 0000 X. 00xx Xxxxxx
X.X. Xxx 000 X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000 Lincoln, Nebraska 68503-0370
Attn: Cowboy Trail
SURVIVAL
24. Neither termination nor expiration will release either party from any
liability or obligation under this Agreement, 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 Track Area, facilities, and improvements are removed and the
right-of-way is restored to its condition as of the Effective Date.
RECORDATION
25. It is understood and agreed that this Agreement may be recorded with
any relevant county offices, and a memorandum of Lease Agreement may
instead be filed and recorded with the relevant county offices.
APPLICABLE LAW
26. All questions concerning the interpretation or application of
provisions of this Agreement shall be decided according to the laws of
the State of Nebraska.
SEVERABILITY
27. To the maximum extent possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement 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 Agreement.
INTEGRATION
28. This Agreement is the full and complete agreement between NGPC and
NEDAK with respect to all matters relating to the maintenance and
operation of the Track Area and supersedes all other agreements
between the parties hereto relating to
18
the maintenance and operation of the Track Area. However, nothing
herein is intended to terminate any surviving obligation of NEDAK or
NEDAK's obligation to defend and hold NGPC harmless in any prior
written agreement between the parties.
MISCELLANEOUS
29. The waiver by NGPC of the breach of any provision herein by NEDAK
shall in no way impair the right of NGPC to enforce that provision for
any subsequent breach thereof.
30. The Effective Date shall be the date by which both parties have
executed and delivered the Agreement to each other, and NEDAK has paid
the initial administrative fee provided in paragraph 5. In the event
NGPC staff advise that the Agreement is available for execution by
NEDAK or has been executed by NGPC and NEDAK fails to execute and
deliver the lease within ten days, or pay the initial administrative
fee within ten days, then this Agreement shall be deemed null and
void.
31. This Agreement may be executed separately and independently in any
number of counterparts, each of which when so executed and delivered
shall be deemed an original, but such counterparts shall together
constitute but one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate the day and year first herein above written.
NEDAK ETHANOL, LLC NEBRASKA GAME AND PARKS COMMISSION
/s/ Xxxxxx Xxxxxxxxx /s/ Xxx Xxxxx
----------------------------------- ----------------------------------
By: Xxxxxx Xxxxxxxxx Xxx Xxxxx
Its: President and General Manager Director
Date: June 19, 2007 Date: June 8, 0000
Xxxxx xx Xxxxxxxx
Xxxxxx of ___________________
The foregoing Instrument was acknowledged before me this ____ day of __________,
2007 by ___________________, the _________________ of NEDAK Ethanol, LLC, a
Nebraska limited liability company.
--------------------------------
Notary Public
My commission expires:
State of Nebraska
County of ______________
The foregoing instrument was acknowledged before the this ___ day of __________,
2007 by __________________, the __________________ of Nebraska Game and Parks
Commission, a Nebraska state agency.
--------------------------------
Notary Public
My commission expires:
20
EXHIBIT "A"
Legal Description of Track Area
Description for the centerline of proposed railroad track through Section 25,
T29N, R12W of the 6th P.M. in Xxxx County, Nebraska, described as follows:
Commencing at the southeast corner of Block 43, Xxxx'x Addition to the City of
X'Xxxxx, Xxxx County, Nebraska, said point also being on the northeasterly
right-of-way line of the Cowboy Trail, formerly known as the northeasterly
right-of-way line of Chicago and Northwestern Railroad, and assuming the
northeasterly right-of-way line of said Cowboy Trail to have a bearing of S
79(degree)14'04" E; thence S 79(degree)14'04" E and on said northeasterly
right-of-way line, 158.88 feet, to a point on a curve; thence S 89(degree)56'23"
W, 282.46 feet; thence N 79(degree)24'51" W, 434.10 feet; thence N
80(degree)00'32" W, 118.93 feet; thence N 80(degree)36'13" W, 3,183.31 feet, to
the point of beginning; thence N75(degree)23'55" W, 185.71 feet; thence
northwesterly on a 764.49-foot radius curve concaved southwesterly, 69.45 feet,
with a chord bearing of N 78000'04" W and chord distance of 69.43 feet; thence N
80(degree)36'13" W, 1,376.76 feet; thence northwesterly on a 764.49-foot radius
curve concaved southwesterly, 69.45 feet, with a chord bearing of N
83(degree)12'22" Wand chord distance of 69.43 feet; thence N 85(degree)48'31" W,
185.71 feet, to the point of termination.
Commencing at the southeast corner of Block 43, Xxxx'x Addition to the City of
X'Xxxxx, Xxxx County, Nebraska; thence S 00(degree)04'37" W (assumed bearing) on
the west line of 1st Street, a distance of 29.10 feet, to the true point of
beginning of an 18.5-foot right-of-way easement; thence easterly on a centerline
of said easement with 10 feet of right-of-way on the southerly side measured
radially from said centerline and with 8.5 feet of right-of-way on the northerly
side measured radially from said centerline, on a non-tangential curve with the
last course, concaved northerly, having a radius of 764.47 feet, a chord
distance of 83.90 feet and a chord bearing of S 89(degree)43'34" E, an arc
distance of 83.94 feet, to the east line of said 0xx Xxxxxx being the point of
termination.
Commencing at the southeast corner of Block 43, Xxxx'x Addition to the City of
X'Xxxxx, Xxxx County, Nebraska; thence S 00(degree)04'37" W (assumed bearing) on
the west line of 1st Street, a distance of 29.10 feet; thence on a
non-tangential curve with the last course, concaved northerly, having a radius
of 764.47 feet, a chord distance of 83.90 feet, and a chord bearing of S
89(degree)43'34" E, an arc distance of 83.94 feet, to the east line of said 1st
Street, also being the true point of beginning; thence on a centerline with 10
feet on the southerly side measured radially from said centerline and with 8.5
feet on the northerly side measured radially from said centerline, continuing on
last described curve with a chord bearing of N 83(degree)54'35" E and a chord
distance of 85.84 feet, an arc distance of 85.89 feet, to a point of tangency;
thence continuing on said centerline N 80(degree)41'30" E, a distance of 241.82
feet, to the southerly line of Grant Street, also being the point of
termination, containing 0.138 acre of land, more or less, subject to all
easements of record.
EXHIBIT "B"
Plans
Other specifications:
1. At all points, the relocated pedestrian/bicycle trail shall be at
least [18 feet] from the centerline of the Track Area (as defined in
the Agreement).
2. If erected, warning signs and barriers shall be located at least [10
feet] from the centerline of the Track Area (as defined in the
Agreement).
EXHIBIT "C"
Legal Description of Cowboy Trail
EXHIBIT "D"
Permitted Exceptions
None.
EXHIBIT "E"
Conditional Use Permit
