Exhibit 10.15
PS - FORM 1550IP
REVISED APRIL 29, 2008
AGREEMENT NO.XXX000000
PRIVATE SIDETRACK AGREEMENT
THIS AGREEMENT, Made and effective as of June 4, 2009, by and between CSX
TRANSPORTATION, INC., a Virginia corporation, whose mailing address is 000 Xxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, hereinafter called "Railroad," and METHES
ENERGIES CANADA, INC. a Corporation of Ontario, Canada, whose mailing address is
0-0000 Xxxxxxxxx Xxxxxxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxxxx X0X0X0, hereinafter
called "Industry," WITNESSETH:
1. PURPOSE:
1.1 The purpose of this Agreement is to detail the provisions of the
maintenance and use of Private Sidetrack for the tender and receipt of rail
freight traffic for the account of Industry. The private sidetrack(s), which
consists of the track structure (rails, ties and fastenings), ballast, grading,
drainage structure, turnout, bumping post and other appurtenances (hereinafter
the "Sidetrack"), is located at or near Sombra, in the County of , Province of
Ontario, as shown on attached drawing(s) labeled Property of Methes Energies
(hereinafter the "Plan").
2. OWNERSHIP AND CONSTRUCTION:
2.1 The Sidetrack, as shown on the Plan, has been constructed. Railroad
owns that portion of Track from Point of Switch (hereinafter "P.S.") in
connecting mainline track (hereinafter called "Railroad's Segment"). Industry
owns the remainder of the tracks (hereinafter called "Industry's Segment").
2.2 Industry represents that is now owns or controls the property served
by the Sidetrack, formerly covered by Agreement dated March 18, 1992, Agreement
XXX000000 between CSX Transportation, Inc. and the Chinook Group. Upon execution
of this Agreement, the aforementioned Agreement is hereby superseded and
cancelled.
3. GOVERNMENTAL REQUIREMENT(S):
3.1 Industry agrees, at its sole expense, to comply with all applicable
laws and regulations and to obtain all necessary governmental permits,
authorizations, orders and approvals (hereinafter collectively "Governmental
Requirement(s)") necessary for the construction, maintenance and use of the
Sidetrack. Industry agrees to assume the cost of Railroad's defense and to
otherwise indemnify and hold Railroad harmless from Industry's failure to comply
with or to obtain the Governmental Requirement(s).
4. MAINTENANCE:
4.1 Railroad and Industry, at their own expense, shall inspect, maintain
and renew their respective Segments of the Sidetrack: (A) in accordance with the
National Transportation Agency's Track Safety Standards; and (B) in a safe
condition, consistent with the operating circumstances and amount of use. Prior
to each entry of Industry upon Industry's Segment of the Sidetrack for
maintenance or renew purposes, Industry shall contact local representatives of
Railroad's Operating and Engineering Departments and obtain the agreement from
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those representatives for the dates and amount of time that Industry's Segment
will be out of service for such maintenance or renewal purposes. Additionally,
both Industry and Railroad agree to keep their respective Segments free from
debris, weeds, potholes, ice or snow, poles, temporary or permanent structures,
other obstructions (Example: parked vehicles), and/or excavations. Railroad
shall have the right, but not the duty, to inspect Industry's Segment.
5. CLEARANCES:
5.1 Industry agrees to provide and maintain: (A) the lateral clearance
requirements (at least eight feet, six inches [8'6"] from either side of the
centerline of the Sidetrack, as increased for flat curves, superelevated curves
and approaches thereto); and (B) the vertical clearance requirements (at least
twenty-two feet [22'0"] above the top of the rail), both as detailed in the
Specifications, for the entire length of the Sidetrack. Any clearance not in
compliance with the foregoing is a "Close" clearance. Each party further agrees
to provide and maintain increased lateral and/or vertical clearances, to the
extent required by applicable statutes or regulations. Lateral and vertical
clearances for power poles and lines must also comply with the National Electric
Safety Code (NESC).
5.2 Notwithstanding the foregoing, Industry may maintain Close
clearances if: (A) Industry obtains a waiver from any conflicting Governmental
Requirement(s); and (B) plans for such Close clearances have been provided to
Railroad and are not rejected within sixty (60) days after the date of receipt.
Industry agrees to install, maintain and replace (at its sole expense) any
warning signs or lighting or make other adjustments regarding such Close
clearances as may be required by Railroad or any Governmental Requirement(s).
5.3 Any gate installed by Industry across the Sidetrack must provide an
appropriate clearance, as provided in the Specifications, and must be equipped
with a double-end bar hasp so that Railroad may install its own lock. If
Railroad is unable to open the gate to deliver or retrieve railcars, Industry
shall reimburse Railroad for its costs of making an additional trip to the
Sidetrack.
6. RIGHT-OF-WAY:
6.1 Industry is responsible for obtaining all necessary right-of-way
(through ownership, easement, permit or otherwise), for its Segment of the
Sidetrack that is not located on Railroad's right-of-way. The width of such
right-of-way must be, at a minimum, sufficient to provide for the Sidetrack and
clearances, cuts, fills, drainage ditches, walkways or roads, as determined by
Railroad.
6.2 Industry may use Railroad's right-of-way for a portion of Industry's
Segment, if shown on the Plan. Such use, not to exceed six and one-half feet (6
1/2') from either side of the centerline of the Sidetrack, is granted only for
the Term of this Agreement. Industry acknowledges that such use is not adverse
to Railroad's title, and does not constitute the granting of any right, title,
casement or license to Railroad's right-of-way.
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6.3 Railroad may use Industry's right-of-way for a portion of Railroad's
Segment, if shown on the Plan. Such use, not to exceed six and one-half feet (6
1/2') from either side of the centerline of the Sidetrack, is granted only for
the Term of this Agreement. Railroad acknowledges that such use is not adverse
to Industry's title, and does not constitute the granting of any right, title,
casement or license to Industry's right-of-way.
6.4 Industry shall not construct or allow the construction of any road
(public or private), gate, tunnel, bridge, culvert, pit, gas-line, pipe or
similar items on, over, under or along the entire Sidetrack or right-of-way
without the written permission of Railroad. If Railroad's permission is granted,
Industry understands that a separate agreement might be necessary and that
Industry shall be responsible for the construction, maintenance, repair and
removal costs of the foregoing items and ancillary structures, unless otherwise
stated therein.
6.5 Industry shall not block or permit the blockage of the sight view
area of any road crossing over the Sidetrack.
7. RAIL SERVICE:
7.1 Railroad agrees, pursuant to the provisions of this Agreement, its
tariffs, circulars, rules and rail transportation contracts, and subject to any
necessary approval by the National Transportation Agency or other authority
having jurisdiction therein, to operate over the Sidetrack in the delivery,
placement and removal of railcars consigned to or ordered by Industry, at such
times established by Railroad. Railroad may also use Industry's Segment of the
Sidetrack for its own general or emergency operating purposes, so long as such
purposes do not materially affect the use of the Sidetrack for rail service to
Industry. Industry agrees to abide by all applicable provisions of this
Agreement and Tariffs CSXT 8100/8200 Series, including, without limitation,
those addressing responsibility for and payment of demurrage and other
accessorial charges. Railroad reserves the right to cancel the Agreement for any
breach of such provisions.
7.2 Industry shall not permit the use of the Sidetrack by or for the
account of third parties without the written consent of Railroad. If such use
occurs without such consent, Industry assumes the same responsibilities, as
stated in this Agreement for such use as if for its own account. Railroad shall
not be required to provide rail service to such third parties.
7.3 Railroad shall be deemed to have delivered any railcar consigned to
or ordered by Industry when such railcar has been placed on Industry's Segment,
so as to allow access by Industry, and Railroad's locomotive has uncoupled from
the railcar. At that time, Railroad shall be relieved of all liability as a
common or contract carrier or as a bailee, and possession of the railcar and its
contents shall be transferred to Industry. Similarly, any obligation of Railroad
as a common or contract carrier or as a bailee shall not begin until it has
coupled its locomotive to the loaded railcar and departed the Sidetrack.
7.4 Industry is responsible for all railcars and their contents while in
Industry's possession and assumes all responsibility for payment of all damage
to any railcar and its contents that may occur during that time, even if caused
by third parties.
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AGREEMENT NO.XXX000000
7.5 If Railroad is unable to deliver a railcar on the Sidetrack for
loading or unloading due to the acts of Industry or any third party, then such
railcar will be considered as constructively placed for demurrage purposes at
the time of attempted delivery.
8. HAZARDOUS MATERIALS:
8.1 The following provisions apply when the Sidetrack is used for the
delivery or tender of any dangerous, flammable, explosive or hazardous commodity
(hereinafter "Hazardous Materials"), as determined by the by Transport Canada
under the Transportation of Dangerous Goods Act & Regulations, as amended from
time to time.
8.2 No Hazardous Materials shall be placed: (A) on the Sidetrack (except
railcar shipments); (B) within the clearance requirements established herein; or
(C) within one hundred (100) feet of Railroad's connecting mainline track.
8.3 Industry shall comply with all recommended practices of the
Association of American Railroads and all Governmental Requirement(s) regarding
the loading, unloading, possession, transfer and/or storage of Hazardous
Materials, including but not limited to the installation and use of pollution
abatement and control structures and other equipment that is prudent or required
under such practices and/or Governmental Requirement(s).
8.4 In the event of a Hazardous Materials leak, spill, or release,
Industry shall immediately notify the appropriate Governmental Response Center
and Railroad's Operations Center and, at its sole expense, take all appropriate
steps to clean, neutralize and remove the spill.
9. ALTERATIONS:
9.1 Industry shall supply Railroad with construction plans of any
addition, deletion or modification (hereinafter jointly the "Alterations") to
Industry's Segment of the Sidetrack, and obtain Railroad's written consent
(which will not be unreasonably withheld) prior to making any Alterations. The
Alterations are also subject to the aforementioned Specifications.
10. SUSPENSION AND TERMINATION:
10.1 Railroad may temporarily suspend its operations over the Sidetrack
if, in its sole opinion, the condition of Industry's Segment of the Sidetrack is
unsafe or if such operations would interfere with its common carrier duties.
Railroad may impose the suspension orally, but shall also provide a written
notice to Industry regarding such temporary suspension.
10.2 Either party may terminate this Agreement upon the default of the
other party. The party claiming a default must provide the other party with
notice. If the default is not corrected within thirty (30) days of the date of
such notice, the party claiming default may terminate this Agreement upon
written notice. Use of the Sidetrack by Railroad during any notice period shall
not be considered as a waiver of any default claimed by it.
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10.3 Industry understands that it must tender and/or receive a sufficient
number of railcar shipments over the Sidetrack in order for Railroad to continue
to keep Railroad's Segment of the Sidetrack in place. Should Railroad determine
that the number of railcar shipments is insufficient, Railroad may notify
Industry and offer to continue to keep Railroad's Segment in place in exchange
for payment of an annual continuation charge from Industry. The amount of the
continuation charge may vary from year to year. Industry shall have a period of
thirty (30) days from the date of notice from Railroad within which to either
accept or decline payment of the continuation charge. Should Industry decline to
pay the continuation charge or not respond during the thirty (30) day period,
then Railroad shall have the right to suspend service over the Sidetrack or to
terminate this Agreement upon notice to Industry.
10.4 This Agreement will terminate, without the necessity of further
notice, upon the abandonment of Railroad's connecting mainline track.
10.5 Either party may terminate this Agreement, beginning five (5) years
after the In Service Date by extending thirty (30) days' notice to the other
party.
10.6 Upon the termination of this Agreement, each party may remove any
portion of its Segment that rests upon the right-of-way of the other party. If
not removed within sixty (60) days after such termination, title to that
remaining Segment will pass to the other party, who may then remove it and
restore the underlying right-of-way at the expense of the prior owner.
10.7 Industry represents that it now owns or controls the property served
by the Sidetrack, formerly covered by Agreement(s) No. csx016220, dated March
18, 1992, between CSX Transportation, Inc., or its predecessor, and METHES
ENERGIES CANADA, INC., or its predecessor in title, and that Industry now owns
or controls all tracks and materials in the Sidetrack which are not herein
specified as owned by Railroad. Upon execution of this Agreement, the aforesaid
Agreement(s) dated March 18, 1992, is (are) hereby superseded and cancelled.
11. LIABILITY AND INSURANCE:
11.1 Except as otherwise provided herein, any and all damages, claims,
demands, causes of action, suits, expenses, judgments and interest whatsoever
(hereinafter collectively "Losses") in connection with injury to or death of any
person or persons whomsoever (including employees, invitees and agents of the
parties hereto) or loss of or damage to any property whatsoever arising out of
or resulting directly or indirectly from the construction, maintenance, repair,
use, alteration, operation or removal of the sidetrack shall be divided between
the Railroad and Industry as follows:
(A) Each party shall indemnify and hold the other party harmless
from all Losses arising from the indemnifying party's willful or gross
negligence, its sole negligence and/or its joint or concurring negligence with a
third party.
(B) The parties agree to jointly defend and bear equally between
them all Losses arising from their joint or concurring negligence.
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(C) Notwithstanding the foregoing, and irrespective of the sole,
joint or concurring negligence of Railroad, Industry acknowledges that it is
solely responsible for and agrees to indemnify and save Railroad harmless from
all Losses arising from: (i) the failure of Industry to properly maintain its
Segment of the Sidetrack; (ii) the construction, alteration or removal of the
Sidetrack by Industry; (iii) the presence of a Close clearance on Industry's
Segment; or (iv) the explosion, spillage and/or presence of Hazardous Materials
on its properties, facility or on Industry's Segment, but only when such Losses
would not have occurred but for the dangerous nature of the Hazardous Materials.
(D) Railroad may be the lessee/operator of the mainline track that
connects with the Sidetrack. In that event, the indemnities from Industry to
Railroad under this section shall also include the lessor/owner of such track.
11.2 Industry at its sole cost and expense, must procure and maintain in
effect during the continuance of this Agreement, a policy of Commercial General
Liability Insurance (CGL), naming Railroad, and/or its designee, as additional
insured and covering liability assumed by Industry under this Agreement. A
coverage limit of not less than THREE MILLION AND 00/100 U.S. DOLLARS
($3,000,000.00) Combined Single Limit per occurrence for bodily injury liability
and property damage liability is required to protect Industry's assumed
obligations. The evidence of insurance coverage shall be provided to Railroad
and endorsed to provide for thirty (30) days' notice to Railroad prior to
cancellation or modification of any policy. Mail CGL certificate, along with
agreement, to CSX Transportation, Inc., Speed Code J180, 000 Xxxxx Xxxxxx,
Xxxxxxxxxxxx, XX 00000. On each successive year, send certificate to Speed Code
C907 at the address listed above.
If said CGL insurance policy(ies) do(es) not automatically cover Industry's
contractual liability during periods of survey, installation, maintenance and
continued occupation, a specific endorsement adding such coverage shall be
purchased by Industry. If said CGL policy is written on a "claims made" basis
instead of a "per occurrence" basis, Industry shall arrange for adequate time
for reporting losses. Failure to do so shall be at Industry's sole risk.
Securing such insurance shall not limit Industry's liability under this
Agreement, but shall be security therefor.
11.3 RESERVED
11.4 Specifically to cover construction or demolition operations within
fifty feet (50') of any operated railroad track(s) or affecting any railroad
bridge, trestle, tunnel, track(s), roadbed, overpass or underpass, Industry
shall: (a) notify Railroad; and (b) require its contractor(s) performing such
operations to procure and maintain during the period of construction or
demolition operations, at no cost to Railroad, Railroad Protective Liability
(RPL) Insurance, naming Railroad, and/or its designee, as Named Insured, written
on the current ISO/RIMA Form (ISO Form No. CG 00 35 01 96) with limits of FIVE
MILLION AND 00/100 U.S. DOLLARS ($5,000,000.00) per occurrence for bodily injury
and property damage, with at least TEN MILLION AND 00/100 U.S. DOLLARS
($10,000,000.00) aggregate limit per annual policy period, with Pollution
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Exclusion Amendment (ISO CG 28 31 11 85) if an older ISO Form CG 00 35 is used.
The original of such RPL policy shall be sent to and approved by Railroad prior
to commencement of such construction or demolition. Railroad reserves the right
to demand higher limits.
At Railroad's option, in lieu of purchasing RPL insurance from an insurance
company (but not CGL insurance), Industry may pay Railroad, at Railroad's
current rate at time of request, the cost of adding this Agreement, or
additional construction and/or demolition activities, to Railroad's Railroad
Protective Liability (RPL) Policy for the period of actual construction. This
coverage is offered at Railroad's discretion and may not be available under all
circumstances.
12. ASSIGNMENT:
12.1 This Agreement may not be assigned without the written consent of
either party, but shall be assumed by their successors through merger or
acquisition. Industry may sell or assign its Segment of the Sidetrack and
right-of-way upon notice to Railroad, but such transactions shall not affect
this Agreement or carry any rights regarding any rail service described in this
Agreement.
12.2 Notwithstanding the provisions of Sections 12.1 or 10.4, Railroad
may assign this Agreement to any new owner or operator of its connecting
mainline track.
13. MISCELLANEOUS:
13.1 Each provision of this Agreement is severable from the other
provisions. If any such provision is ruled to be void or unenforceable, the
remaining provisions will continue in full force and effect.
13.2 Other documents may also describe and cover a portion of the rail
service and other provisions of this Agreement. Should any conflict arise
between such other documents and this Agreement, Railroad may designate which
provision will control.
13.3 The section captions in this Agreement are for the convenience of
the parties and are not substantive in nature. All words contained in this
Agreement shall be construed in accordance with their customary usage in the
railroad industry.
13.4 The failure of either party to enforce any provision of this
Agreement or to prosecute any default will not be considered as a waiver of that
provision or a bar to prosecution of that default unless so indicated in
writing.
13.5 All notices shall be in writing, shall be sent to the address
contained in the introductory section and shall be considered as delivered: (A)
on the next business day, if sent by telex, telecopy, telegram or overnight
carrier; or (B) five (5) days after the postmark, if sent by first class mail.
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13.6 The late payment of any charge due Railroad pursuant to this
Agreement will result in the assessment of Railroad's then standard late fee and
interest charges at the rate of eighteen percent (18%) per annum, or at the
highest lawful rate, until payment in full is received.
13.7 Industry agrees to reimburse Railroad for all reasonable costs
(including attorney's fees) incurred by Railroad for collecting any amount due
under this Agreement.
14. ENTIRE UNDERSTANDING:
14.1 This Agreement constitutes the entire understanding of the parties,
is to be construed under the laws of the state in which the Sidetrack is
located, may not be modified without the written consent of both parties, and
has been executed by their duly authorized officials.
Witness for Railroad: CSX TRANSPORTATION, INC.
___________________________ By:_____________________________
Print/Type Name:_____________________
Print/Type Title: ___________________
Witness for Industry: METHES ENERGIES CANADA, INC.
/s/ Xxx XX By: /s/ Xxxx Xxxxxx
----------------------- ------------------------
Xxx XX
Who, by the execution hereof,
affirms that he/she has the
authority to do so and to bind the
Industry to the terms and conditions
of this Agreement.
Print/Type Name: Xxxx Xxxxxx
------------------
Print/Type Title: President
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Tax ID No.: 00000-0000 RT 0001
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[PLAN OMITTED]
[PROPERTY OF METHES ENERGIES]
