EXHIBIT 10.2
NEBRASKA NORTHEASTERN RAILWAY COMPANY
INDUSTRY TRACK AGREEMENT
THIS INDUSTRY TRACK AGREEMENT ("Agreement") made as of this 24th day of July,
2007, ("Effective Date") by and between NEBRASKA NORTHEASTERN RAILWAY COMPANY, a
Nevada corporation ("Railroad"), and NEDAK ETHANOL, LLC, a Nebraska Limited
Liability Company ("Industry").
WHEREAS, Industry desires to (i) construct and maintain railroad track on and
over such rights and ownership as Railroad may have in certain real property in
or near O'Neill, County of ▇▇▇▇, State of Nebraska as shown in heavy solid on
Exhibit "A" and legally described on Exhibit "B" attached hereto and
incorporated herein ("Railroad Track"); (ii) construct and maintain railroad
track on and over certain real property to be leased by Industry, all as shown
as heavy hatched on Exhibit "A" and legally described on Exhibit "B-1"
("Industry Track"); and
WHEREAS, Industry desires that Railroad operate over the Railroad Track and the
Industry Track (collectively, together with all appurtenances, called "Track"),
to serve an ethanol transload facility operated by Industry in west O'Neill,
County of ▇▇▇▇, State of Nebraska ("Transload Facility"), and Railroad desires
to provide such service, subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, the
parties agree as follows:
1. OWNERSHIP. Railroad shall own the Railroad Track, and Industry shall own
the Industry Track. Railroad hereby grants Industry, subject to all non-fee,
underlying or reversionary interests, reservations, easements and other
encumbrances, of record or otherwise, including the rights of the public, if
any, in and to those portions of the property described on Exhibit "B" lying
within boundaries of any public streets, alleys and thoroughfares, a
non-exclusive easement to enter upon Railroad's real property to construct and
maintain (but not to operate railroad locomotives, cars or trains) the Railroad
Track pursuant to the terms of this Agreement.
2. CONSTRUCTION, MAINTENANCE AND OPERATION.
(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 construction and maintenance
of the Track hereunder. Industry shall strictly comply with all laws, statutes,
regulations, ordinances, orders, covenants and restrictions, or decisions of any
court of competent jurisdiction, including, without limitation, those pertaining
to environmental matters (collectively, "Legal Requirements") and other Railroad
requirements relating to the use of the Track, Facilities or Equipment.
(b) Industry shall at all times, and at its sole risk and expense,
maintain, or cause to be maintained, the Track and all facilities and equipment
(if any) thereon in a safe and satisfactory condition and in compliance with all
applicable Legal Requirements. Maintenance means, among other things, providing
proper drainage along the relevant portion of the Track, expeditiously keeping
the Track free and clear of snow, ice, vegetation, structures, and other
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obstacles, maintaining grade crossing warning devices, passive warning signs,
gates, fences, barriers, roadways, track drainage facilities, lighting and track
and other signals. Industry shall assure that the Track complies with the
conditions of the Conditional Use Permit issued by the City of ▇'▇▇▇▇▇ in
connection with the construction of the Transload Facility. Without relieving
Industry from any of its obligations under this Agreement, Railroad may refuse
to operate over the Track or use or enter the Facilities or contact the
Equipment whenever Railroad, in its sole discretion determines that the same is
unsatisfactory for Railroad's operation, entry or contact. If and when Industry
has remedied such condition to Railroad's sole satisfaction, railroad shall
resume operation over the Track or use of or entry into the Facilities or
contact with the Equipment. Railroad's operation over the Track or use of or
entry into any Facility or contact with any Equipment with knowledge of an
unsatisfactory condition is not a waiver of Industry's obligations contained
herein or of Railroad's right to recover for or be indemnified and defended
against such damages to property or injury to or death of persons that may
result therefrom.
(c) Industry shall, at its sole expense, pay all costs for changes, repairs
or alterations to the Industry Track that may be necessary to conform to any
alterations of grade or relocation of the Railroad Track at the point of
connection with the Industry Track, if such alteration of grade or relocation is
required to comply with any Legal Requirement or is made for any other reason
beyond Railroad's reasonable control. Railroad shall provide Industry reasonable
notice should any such changes, repairs or alterations be required to Industry
Track.
(d) If Industry installs any gates or fencing across the Industry Track, or
a track scale, unloading pit, loading or unloading device, adjustable loading
dock, warehouse door, or any other structure (collectively, "Facilities")
affecting the Industry Track, Industry shall be solely responsible for assuring
the safe and satisfactory condition of the same and shall not allow any
Facilities to be a source of danger to the safe operation of the Industry Track.
Industry shall also be solely responsible for assuring the safe and satisfactory
condition of all of Industry's equipment touching, used in conjunction with or
affecting the Industry Track ("Equipment") and shall now allow any Equipment to
be source of danger to the safer operation of the Industry Track. Before
utilizing or unloading any equipment spotted onto the Industry Track, Industry
shall inspect the same and all other Equipment and Facilities for the safety of
persons working on or about these items to assure compliance with the foregoing.
Industry shall utilize all Facilities, Equipment and spotted equipment so as not
to affect negatively safe and efficient operation over the Industry Track.
Industry shall, among other things: keep any gates across the Industry Track
open whenever necessary, in Railroad's reasonable judgment, to enable Railroad
to safely and efficiently operate over the Industry Track; keep unloading pits
securely covered when not in actual use and at all times when the Track is being
switched by Railroad; keep all doors firmly secured; and keep adjustable loading
docks at warehouses securely fastened in an upright position when not in actual
use and at all times when the Industry Track is being switched by Railroad,
(e) 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 reasonably deems
appropriate in connection with Railroad's operation over the Industry Track. In
the event Railroad provides reasonable notice to Industry that such safety
measures are required, and Industry does not provide such safety measures, then
Industry shall reimburse Railroad within thirty (30) days of receipt of ▇▇▇▇
therefor for all costs
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expended by Railroad, including but not limited to the reasonable cost of
Railroad's Flagman in connection with this Section 2(e).
(f) In the event the public authority having jurisdiction thereover orders
the separation of the grade of the Industry Track and any street, road, highway,
other rail line or the like, Industry will cause the removal and/or relocation
of the Industry Track. In the event Industry does not cause such removal and/or
relocation of the Industry Track, then Industry shall reimburse Railroad all
expenses which Railroad incurs in connection with the required removal and/or
relocation of the Industry Track.
(g) Neither Railroad nor Industry shall place, permit to be placed, or
allow to remain, any permanent or temporary material, structure, pole,
container, storage vessel, above-ground or underground tank, 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 within 24 feet
vertically from the top of the rail of said Track ("Minimal Clearances"),
provided that if any Legal Requirement requires greater clearances than those
provided for in this Section 2(g), then Railroad and Industry shall strictly
comply with such Legal Requirement. 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 Track. 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 2(g) or of Railroad's right to recover and be
indemnified and defended by Industry against such damages to property, or injury
to or death of persons, that may result therefrom.
(h) Upon termination of this Agreement, the Railroad Track shall be the
sole property of Railroad without further cost or expense, and the Industry
Track shall be the sole property of Industry without further cost or expense.
3. RAIL SERVICE
(a) Railroad agrees, pursuant to the provisions of this Agreement, its
tariffs, circulars, rules and rail transportation contracts, to operate over the
Track 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 Track for its own general or emergency operating purposes, so long as
such purposes do not materially affect the use of the Industry Track for rail
service to Industry, provided, further that such use shall not be as a 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.
(b) Industry shall not permit the use of the Industry Track 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.
(c) Railroad shall be deemed to have delivered any railcar consigned to or
ordered by Industry when such railcar has been placed at the Transload Facility,
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
carrier or as a bailee, and possession of the railcar and its contents
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shall be transferred to Industry. Similarly, any obligation of Railroad as a
carrier or as a bailee shall not begin until it has coupled its locomotive to
the loaded railcar and departed the Transload facility.
(d) 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 rail and its contents that may occur during that time, even if caused by
third parties.
(e) If Railroad is unable to deliver a railcar at the Transload Facility
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.
4. TERM. Unless earlier terminated as provided herein, this Agreement will be
in force for the term of five (5) years from the Effective Date, and will
automatically continue thereafter until terminated by either party giving to the
other thirty (30) days' written notice.
5. INDEMNITY.
(a) For purposes of this Agreement: (i) "Indemnitees" means Railroad and
Railroad's affiliated companies, partners, successors, assigns, legal
representatives, officers, directors, shareholders, employees and agents; (ii)
"Liabilities" means all claims, liabilities, fines, penalties, costs, damages,
losses, liens, causes of action, suits, demands, judgments and expenses
(including, without limitation, court costs, reasonable attorneys' fees and
costs of investigation, removal and remediation and governmental oversight
costs) environmental or otherwise; and (iii) "Industry Parties" means Industry
or Industry's officers, agents, invitees, licensees, employees, or contractors,
or any party directly or indirectly employed by any of them, or any party they
control or exercise control over.
(b) INDUSTRY SHALL RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR RELATED TO (IN WHOLE
OR IN PART) ANY CLAIM RESULTING FROM THE OPERATION OF RAIL LOCOMOTIVES, CARS, OR
TRAINS OVER ANY PUBLIC OR PRIVATE CROSSING LOCATED ON THE INDUSTRY TRACK,
REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNITEE.
(c) INDUSTRY SHALL RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR RELATED TO (IN WHOLE
OR IN PART) ANY CLAIM THAT BY VIRTUE OF THE USE OF THE TRACK CONTEMPLATED IN
THIS AGREEMENT, UNDER CERCLA OR OTHER ENVIRONMENTAL LAWS RAILROAD IS (I) AN
"OWNER", "OPERATOR", "ARRANGER" OR "TRANSPORTER" OF THE INDUSTRY TRACK OR THE
FACILITY, OR (II) OTHER THAN A COMMON CARRIER WITH RESPECT TO THE TRACK,
REGARDLESS OF ANY NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNITEE.
(d) IF ANY EMPLOYEE OF ANY INDUSTRY PARTY CLAIMS HE OR SHE IS AN EMPLOYEE
OF ANY INDEMNITEE, INDUSTRY SHALL INDEMNIFY AND
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HOLD THE INDEMNITEES HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR
RELATED TO (IN WHOLE OR IN PART) ANY SUCH CLAIM, INCLUDING, BUT NOT LIMITED TO,
CLAIMS RELATED TO PROCEEDINGS UNDER OR RELATED TO THE FEDERAL EMPLOYERS'
LIABILITY ACT, 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 AND REGARDLESS OF ANY NEGLIGENCE OR
STRICT LIABILITY OF ANY INDEMNITEE RELATED TO SUCH CAUSES OF ACTION.
(e) INDUSTRY SHALL RELEASE, INDEMNIFY, DEFEND, AND HOLD THE INDEMNITEES
HARMLESS FROM AND AGAINST ANY LIABILITIES ARISING OUT OF OR RELATED TO (IN WHOLE
OR IN PART) ANY CLAIM RESULTING FROM ANY BREACH BY INDUSTRY OF THIS AGREEMENT
THAT HAS NOT BEEN CURED AS PROVIDED HEREIN.
(f) 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 Agreement 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, reasonable attorneys' and investigators' fees, reasonable
litigation and appeal expenses, settlement payments, and amounts paid in
satisfaction of judgments.
6. INSURANCE.
(a) Industry shall, at its sole cost and expense, procure and maintain
during the life of this Agreement the following insurance coverage:
(i) Commercial General Liability insurance that contains broad form
contractual liability with a combined single limit of a minimum of
$1,000,000 each occurrence and an aggregate limit of at least $2,000,000.
Coverage must be purchased on a post 1998 ISO occurrence or equivalent and
include coverage for, but not limited to Bodily Injury, and Property
Damage, Products and completed operation. The contract shall be amended if
necessary to remove any exclusion or other limitation for any activity
within 50 feet of railroad property.
(ii) Workers Compensation and Employers Liability insurance including
coverage for, but not limited to:
(A) 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.
(B) 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) Automobile liability insurance covering owned, non-owned and
leased vehicles for limits not less than $1,000,000 per occurrence.
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(b) In addition, Industry shall comply with the following additional
requirements with respect to such insurance:
(i) Any insurance policy shall be written by a reputable insurance
company 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. If any portion of the operation is to be subcontracted by
Industry, Industry shall require that the Subcontractor provide and
maintain insurance coverage as set forth herein.
(ii) Prior to commencing operations governed by this Agreement,
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 or non-renewal with such provision 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.
(iii) Failure to provide evidence as required by this Section
5(b)(iii) shall entitle, but not require, Railroad to terminate this
Agreement immediately if such failure is not remedied by Industry within
five (5) days from notice by Railroad. Acceptance of a certificate that
does 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 Agreement.
Damages recoverable by Railroad shall not be limited by the amount of the
required insurance coverage.
(c) All insurance maintained by Industry under this Agreement shall name
Railroad as an additional insured.
(d) Industry and Railroad each agree to cause to be included in their
respective policies of insurance the agreement of the insurer thereof that said
policies shall not be invalidated by a waiver of claim by the insured against
Industry or Railroad, as the case may be, and each will furnish evidence thereof
to the other. Each party hereto does hereby remise, release and discharge the
other party hereto, and any officer, agent, employee or representative of such
party, of and from any liability whatsoever hereafter arising from loss, damage
or injury for which insurance (permitting waiver of liability and containing a
waiver of subrogation) is required to be carried by the injured party pursuant
to the term of this Agreement at the time of such loss, damage or injury.
7. DEFINITION OF COST AND EXPENSE. 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. In the event that Industry shall fail to pay
any monies due to Railroad within thirty (30) days after
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the invoice date, then Industry shall pay interest on such unpaid sum from such
due date until paid at an annual rate equal to the lesser of (i) the prime rate
last published in The Wall Street Journal for the month in which the sum begins
to accrue plus two and one-half percent (2 1/2%), or (ii) the maximum rate
permitted by law.
8. RIGHT OF RAILROAD TO CONSTRUCT FUTURE FACILITIES. Railroad retains the
right, without liability to the Industry or any other party, to construct or
allow to be constructed upon its property other facilities, and to use its
property in any manner, provided that such construction shall not materially
interfere with the use of the Railroad Track as described herein. Railroad shall
provide Industry with at least thirty (30) days' written notice of the
commencement of such construction.
9. PUBLIC ASSESSMENTS. Industry shall timely pay all compensation, assessments
and levies required at any time by any public authority, entity, or person for
the privilege of maintaining and operating the Industry Track. Industry shall
not cause any liens to be filed against the Railroad Track or any Railroad
property. In the event any such liens are filed as a result of action or
inaction by Industry, Industry shall cause such liens to be released within
fifteen (15) days.
10. NOTIFICATION REQUIREMENTS
(a) Industry shall give immediate notice to Railroad of any release of
hazardous substances on or from the Track, violation of environmental Legal
Requirements, or inspection or inquiry by governmental authorities charged with
enforcing environmental Legal Requirements with respect to Industry's use of the
Track. Industry shall use the best efforts to promptly respond to any release on
or from the Track. 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.
(b) In the event that Railroad has notice from Industry or otherwise of a
release or violation of Environmental Laws on the Track which occurred or may
occur during the term of this Agreement, Railroad may require Industry, at
Industry's reasonable risk and expense, to take timely measures to investigate,
remediate, respond to or otherwise cure such release or violation affecting the
Track or Railroad's property.
(c) Industry shall promptly report to Railroad in writing any conditions or
activities upon the Facility or Track 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 Industry's reporting to Railroad shall not
relieve Industry of any obligation whatsoever imposed on it by this Agreement.
Industry shall promptly respond to Railroad's request for information regarding
said conditions or activities.
11. DEFAULT. The following events shall constitute defaults hereunder: (a)
creating or allowing to remain any condition, including without limitation, any
environmental condition, on or about the Track, which in Railroad's reasonable
judgment interferes with or endangers the operations of Railroad; or (b)
defaults on any of the covenants or agreements of Industry contained in this
document.
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12. TERMINATION.
(a) In addition to all other remedies available at law or in equity,
Railroad may, without incurring any liability to Industry, terminate this
Agreement and discontinue operation on and over the Track and remove the
Railroad Track, in the event of any of the following events:
(i) any default as described in Sections 11 (a) or (b) occurs and is
not remedied to Railroad's reasonable satisfaction within 30 days
after Industry's receipt of written notice of such default;
(ii) Railroad is authorized by the Surface Transportation Board to
abandon its line to which said Track is connected; or
(iv) Railroad is dispossessed of the right to operate over the Track
or its connecting track or any part thereof, Railroad may terminate
this Agreement effective immediately by written notice to Industry.
(b) Industry hereby agrees to waive and release all claims, rights, and
causes of action that Industry has or may have against Railroad because of the
discontinuance of operation and removal of the Railroad Track as provided in
this Section 12.
13. ASSIGNMENT. 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.
14. NOTICES. Any notice required or permitted to be given hereunder must be in
writing and the same shall be given and will be deemed to have been 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 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. The address
for such notice shall be the address set forth below each party's signature,
which may be changed by written notice to the other party.
15. SURVIVAL. 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.
16. MISCELLANEOUS
(a) This Agreement must not be placed of public record.
(b) To the maximum extent possible, each provision of this Agreement must
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is prohibited by, or held to be invalid
under, applicable law, such provision will be ineffective solely to the extent
of such prohibition or invalidity, and this will not
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invalidate the remainder of such provision or any other provision of this
Agreement. All questions concerning the interpretation or application of
provisions of this Agreement must be decided according to the laws of the State
of Nebraska.
(c) This Agreement is the full and complete agreement between Railroad and
Industry with respect to all matters relating to the maintenance and operation
of the Track and supersedes all other agreements between the parties hereto
relating to the maintenance and operation of the Track. 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.
(d) 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. All remedies provided hereunder are
cumulative and are in addition to all other remedies available at law or in
equity.
(e) This Agreement is also made for the benefit of such other railroads
that, either by agreement with Railroad or order of competent public authority,
have the right to use the Track, all of which railroads shall be deemed
"Railroad" under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate the day and year first herein above written.
RAILROAD:
NEBRASKA NORTHEASTERN RAILWAY COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Address for notices:
Nebraska Northeastern Railway Company
c/o TNW Corporation
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
INDUSTRY:
NEDAK ETHANOL, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
Address for notices:
NEDAK Ethanol, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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EXHIBIT "A"
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EXHIBIT "B"
A non-exclusive easement for railroad tract over those portions of Section 30,
T29N, R11W of the 6th P.M. in ▇▇▇▇ County, Nebraska, described according to a
centerline description as follows:
COMMENCING at the southeast corner of Block 43, ▇▇▇▇'▇ Addition to the City of
▇'▇▇▇▇▇, ▇▇▇▇ 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 83.9 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 ▇▇▇
▇▇▇▇▇▇; thence continuing easterly 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 true POINT OF BEGINNING of an 18.5-foot right-of-way
easement lying within Grant Street; thence continuing N 80(degree)41'30" E on a
centerline with 10 feet on the south side measured radially from said centerline
and with 8.5 feet on the north side measured radially from said centerline, a
distance of 108.62 feet, to the beginning of a tangential curve concaved
southerly, having a radius of 1,015.42 feet, a chord distance of 163.88 feet,
and a chord bearing of N 85(degree)19'14" E; thence northeasterly, an arc
distance of 164.07 feet on said curve, along said centerline, to a point of
tangency; thence continuing on said centerline N 89(degree)56'44" E, a distance
of 623.78 feet, to the west line of ▇▇▇ ▇▇▇▇▇▇; thence N 89(degree)14'39" E on
said centerline with 10 feet on the south side measured radially from said
centerline and with 8.5 feet on the north side measured radially from said
centerline, 239.49 feet, to the beginning of a tangential curve concaved
southerly, having a radius of 2,155.07 feet, a chord distance of 703.76 feet,
and a chord bearing of S 81(degree)21'30" E; thence easterly, an arc distance of
706.92 feet on said curve along said centerline, to a point of tangency; thence
S 71(degree)57'40" E, 22.53 feet, to a point on the east line of ▇▇▇ ▇▇▇▇▇▇,
said point being 73.90 feet south of the northwest corner of Block 1, ▇▇▇▇'▇
Addition, to the City of ▇'▇▇▇▇▇, ▇▇▇▇ County, Nebraska, said point also being
on the centerline of the existing track of the Nebraska Northeastern Railway
Company.
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EXHIBIT "B-1"
That part of Section 30, T29N, R11W of the 6th P.M. in ▇▇▇▇ County, Nebraska,
described by a centerline as follows:
COMMENCING at the southeast corner of Block 43, ▇▇▇▇'▇ Addition to the City of
▇'▇▇▇▇▇, ▇▇▇▇ 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 wide strip of land; thence easterly on a centerline of
said strip of land, with 10 feet of said strip lying on the southerly side
measured radially from said centerline and with 8.5 feet of said strip lying 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 ▇▇▇ ▇▇▇▇▇▇; thence
continuing on the 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.
AND:
Those parts of Section ▇▇, ▇▇▇▇, ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇ of the 6th
P.M. in ▇▇▇▇ County, Nebraska, described by a boundary description as follows:
COMMENCING at the southeast corner of Block 43, ▇▇▇▇'▇ Addition to the City of
▇'▇▇▇▇▇, ▇▇▇▇ 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
80(degree)40'55" E; thence S 80(degree)40'55" E and on said northeasterly
right-of-way line, 80.81 feet, to the POINT OF BEGINNING; thence S
80(degree)40'55" E and on said northeasterly right-of-way line, 124.10 feet;
thence S 77(degree)08'28" W, 5.91 feet, to a point on a curve; thence
southwesterly on a 782.49-foot radius curve concaved northwesterly, 327.73 feet,
with a chord bearing of S 89(degree)08'23" W and chord distance of 325.34 feet;
thence N 78(degree)51'42" W, 434.10 feet; thence southwesterly on a
5,711.65-foot radius curve concaved southwesterly, 118.56 feet, with a chord
bearing of N 79(degree)27'23" W and chord distance of 118.56 feet; thence N
80(degree)03'04" W, 5,928.92 feet; thence N 09(degree)56'56" E, 43.00 feet;
thence S 80(degree)03'04" E, 859.12 feet; thence S 85(degree)15'22" E, 184.57
feet; thence southeasterly on a 789.49-foot radius curve concaved southwesterly,
71.72 feet, with a chord bearing of S 82(degree)39'13" E and a chord distance of
71.70 feet; thence S 80(degree)03'04" E, 1,376.76 feet; thence southeasterly on
a 189.49-foot radius curve concaved southwesterly, 71.72 feet, with a chord
bearing of S 77(degree)26'55" E and a chord distance of 71.70 feet; thence S
74(degree)50'46" E, 184.57 feet; thence S 80(degree)03'04" E, 3,182.17 feet;
thence southeasterly on a 5,754.65-foot radius curve concaved southwesterly,
119.45 feet, with a chord bearing of S 79(degree)27'23" E and a chord distance
of 119.45 feet; thence S 78(degree)51'42" E, 434.10 feet; thence southeasterly
on a 739.49-foot radius curve concaved northeasterly 202.03 feet, with a chord
bearing of S 86(degree)41'19" E and a chord distance of 201.40 feet, to the
point of beginning.
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