EXHIBIT 10.14
ACCESS AND RAIL AGREEMENT
This Access and Rail Agreement ("Agreement") is made by and among OTTER
TAIL CORPORATION, F/K/A Otter Tail Power Company, a Minnesota corporation;
MONTANA-DAKOTA UTILITIES CO., a division of MDU Resources Group, Inc., f/k/a
Montana-Dakota Utilities Co., a Delaware corporation; NORTHWESTERN PUBLIC
SERVICE, a division of NorthWestern Corporation, f/k/a Northwestern Public
Service Company, a Delaware corporation, (collectively the "Big Stone Plant
Co-Owners" or "Grantor"); and NORTHERN LIGHTS ETHANOL, LLC, a South Dakota
limited liability company having its principal office at 0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxxx, Xxxxx Xxxxxx 00000 ("Northern Lights").
RECITALS:
A. Grantor owns the following described real property:
See Exhibit D attached hereto and incorporated herein by reference
(collectively the "Grantor's Property").
(This space left blank intentionally)
B. Northern Lights has agreed to lease the following described real
property from Big Xxxxx-Xxxxx Industrial Development and Transportation, L.L.C.
("Lessor"), and construct an ethanol facility on the site pursuant to the terms
and conditions of the Big Stone Plant Property Lease dated April 18, 2001 (the
"Lease"), which was filed for
record in the office of the Register of Deeds, Grant County, South Dakota, on
September 14, 2001, at 1:15 o'clock p.m., and recorded in Book 223 of
Miscellaneous on Pages 704 - 733:
Parcel A in the Southwest Quarter (SW 1/4) of Section Twelve (12), Township
One Hundred Twenty-One (121) North, Range Forty-Seven (47) West of the
Fifth Principal Meridian, Grant County, South Dakota, according to the
recorded plat thereof.
Parcel B in the Southeast Quarter (SE 1/4) of Section Eleven (11), Township
One Hundred Twenty-One (121) North, Range Forty-Seven (47) West of the
Fifth Principal Meridian, Grant County, South Dakota, according to the
recorded plat thereof.
(collectively the "Ethanol Plant Property").
C. Northern Lights wishes to obtain from Grantor the right to construct a
railroad spur line (the "Northern Lights' Railroad Spur Line") and a maintenance
road (the "Maintenance Road") across a portion of the Grantor's Property. The
Northern Lights' Railroad Spur Line and Maintenance Road shall be located upon
that portion of Grantor's Property identified on Exhibit A (the "Northern
Lights' Railroad Spur Line and Maintenance Road Areas").
D. Grantor owns and operates a railroad spur line upon the Grantor's
Property which railroad spur line is identified on Exhibit B (the "Grantor's
Railroad Spur Line") and connects with the railroad mainline owned by the
Burlington Northern Sante Fe Railroad (the "Burlington Northern Santa Fe
Railroad Mainline").
E. Northern Lights wishes to obtain from Grantor the right to move rail
cars across Grantor's Railroad Spur Line to and from the Burlington Northern
Sante Fe Railroad Mainline and Northern Lights' Railroad Spur Line.
F. Northern Lights also wishes to obtain an easement from Grantor ingress
and egress over an access road located on that portion of Grantor's Property
identified on Exhibit C (the "Access Road").
G. Grantor agrees to provide such rights to Northern Lights, subject to the
terms and conditions of this Agreement.
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NOW, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) and
other good and valuable consideration paid by Northern Lights, and Northern
Lights' agreement to lease Parcels A and B from Lessor, the parties agree as
follows:
1. NORTHERN LIGHTS' RAILROAD SPUR LINE. Grantor grants to Northern Lights
and Northern Lights' successors, assigns, agents, employees, invitees and rail
carriers an exclusive right to construct, maintain, repair, replace and operate
the Northern Lights' Railroad Spur Line and Maintenance Road upon the Northern
Lights' Railroad Spur Line and Maintenance Road Area; and the exclusive use of
the Northern Lights Railroad Spur Line and Maintenance Road Areas. Northern
Lights, at its sole cost and expense, agrees to construct, maintain, repair,
replace and operate the Northern Lights Railroad Spur Line and Maintenance Road.
2. RAIL ACCESS. Grantor grants to Northern Lights and Northern Lights'
successors, assigns, agents, employees, invitees and rail carriers a
nonexclusive right to ingress and egress over, upon and across the Grantor's
Railroad Spur Line for purposes of railcar movement to and from the Burlington
Northern Santa Fe Railroad Mainline to the Northern Lights Railroad Spur Line.
Grantor agrees to maintain, repair and replace the Grantor's Railroad Spur Line.
The cost of maintaining, repairing and replacing the Grantor's Railroad Spur
Line shall be shared by the parties in proportion to their usage of the
Grantor's Railroad Spur Line. In the event that Grantor fails to maintain,
repair and replace Grantor's Railroad Spur Line so as to permit Northern Lights
to utilize Grantor's Railroad Spur Line for the purposes of moving railcars to
and from its ethanol plant, Northern Lights may, but shall be under no
obligation, to perform such maintenance, repairs or replacement of Grantor's
Railroad Spur Line, and may enter upon the Grantor's Property for such purposes
and take such action thereon as, in Northern Lights' option, may be necessary or
appropriate therefor: (a) in the event of an emergency, at any time and without
any notice; (b) in the event of a non-emergency, at any time after such failure
continues for more than 30 days after written notice thereof from Northern
Lights (or if the failure is of such a character as to require more than 30 days
to cure and Grantor continues to use reasonable diligence in curing such
failure, at any time after that period of time reasonably necessary to cure such
failure).
3. ACCESS ROAD. Grantor grants to Northern Lights and Northern Lights'
successors, assigns, agents, employees, invitees, and rail carriers, a
nonexclusive right over, upon and across the Access Road (as depicted on Exhibit
C) for driveway and ingress and egress purposes. Grantor agrees to maintain,
repair and replace the Access Road so long as Northern Lights does not utilize
the Access Road for moving corn and finished products to and from the Ethanol
Plant Property. In the event that Northern Lights begins using the Access Road
for the purpose of moving corn or finished products
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to and from the Ethanol Plant Property and roads dedicated to public use, the
parties shall share the cost and expense of maintaining, repairing and replacing
the Access Road in proportion to their respective usage of the Access Road. In
the event that Grantor fails to maintain, repair and replace the Access Road so
as to permit Northern Lights to utilize the Access Road for ingress and egress
to the Ethanol Plant Property, Northern Lights may, but shall be under no
obligation to, perform such maintenance, repairs or replacement of the Access
Road at the expense of Grantor, and may enter upon the Access Road for such
purposes and take such action thereon as, in Northern Lights' option, may be
necessary or appropriate therefor: (a) in the event of an emergency, at any time
and without any notice; (b) in the event of a non-emergency, at any time after
such failure continues for more than 30 days after written notice thereof from
Northern Lights (or if the failure is of such a character as to require more
than 30 days to cure and Grantor continues to use reasonable diligence in curing
such failure, at any time after that period of time reasonably necessary to cure
such failure).
4. LEASEHOLD RIGHTS. Northern Lights' rights under this Agreement, and
those of its successors, assigns, agents, employees, invitees, and rail
carriers, are incident to and contingent upon the continuance of their leasehold
rights under the Lease. If Northern Lights' rights, and those of its successors,
assigns, agents, employees, invitees, and rail carriers terminate under the
Lease, then this Agreement shall also terminate at said time.
5. PAYMENT OF MAINTENANCE COSTS. All amounts billed by either party to the
other for reimbursement of maintenance costs described in this Agreement shall
be due within 30 days following the date of receipt of the billing statement.
All amounts payable by either party under any of the provisions of this
Agreement shall bear interest from the date they become delinquent until paid at
the rate of 4% per annum in excess of the rate of interest per annum as
published in THE WALL STREET JOURNAL as the "High Prime Rate," or the "Prime
Rate" if only one "Prime Rate" is published, as the same may fluctuate from
time-to-time. If THE WALL STREET JOURNAL ceases to publish a "High Prime Rate"
or "Prime Rate," then the "High Prime Rate" or "Prime Rate" shall be determined
by reference to a similar publication.
6. INDEMNIFICATION. Each party agrees to indemnify, defend and hold
harmless the other party from and against any and all claims, demands, losses,
damages, liabilities and expenses of all suits, actions and judgments arising
out of or in any way related to constructing, maintaining and repairing the
roads and spur lines described in this Agreement.
7. DURATION. This Agreement and the parties' rights and obligations shall
commence upon execution of this Agreement and shall remain in effect unless and
until
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the earlier of the date that the parties or their respective successors or
assigns mutually agree to terminate this Agreement, or the termination of the
Lease.
8. BENEFIT. The rights of Northern lights described herein shall run with
the land and shall inure to the benefit of and be binding upon Grantor and
Northern Lights, and their respective successors and assigns.
9. NO PUBLIC DEDICATION. Nothing contained in this Agreement shall be
deemed a gift or dedication of any portion of the Grantor's Property to or for
the general public or for any public purpose whatsoever.
10. NO PARTNERSHIP CREATED. None of the terms or provisions of this
Agreement shall be deemed to create a partnership between or among the parties
and their respective businesses. Nor shall it cause them to be considered joint
venturers or members in any joint enterprise.
11. GOVERNING LAW/JURISDICTION. This Agreement shall be governed by the
laws of the State of South Dakota. The parties consent to the jurisdiction of
the courts of the State of South Dakota and agree that any action arising out of
or to enforce this Agreement must be brought and maintained in South Dakota.
Dated this 18th day of April, 2001.
OTTER TAIL CORPORATION
By: /s/ Xxxx Xxxxxxx
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Its: VP, COO, Energy Supply
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MONTANA-DAKOTA UTILITIES CO.,
A Division of MDU Resources Group, Inc.
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Its: VP Energy Supply
--------------------------------------
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NORTHWESTERN PUBLIC SERVICE,
a Division of NorthWestern Corporation
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Its: Vice President Energy Operations
--------------------------------------
NORTHERN LIGHTS ETHANOL, LLC,
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Title: President of Board of Managers
STATE OF SOUTH DAKOTA )
:SS
COUNTY OF OTTERTAIL )
On this the 19 day of April, 2001, before me,
Xxxxxxx X. Xxxxxx, the undersigned officer, personally appeared Xxxx Xxxxxxx,
who acknowledged himself to be the VP, COO Energy Supply of Otter Tail
Corporation, a corporation, and that he, as such VP, COO Energy Supply being
authorized so to do, executed the foregoing instrument for the purposes herein
contained, by signing the name of the corporation himself as VP, COO Energy
Supply.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Notary Public - Minnesota
My commission expires: 00-00-00
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XXXXX XX XXXXX XXXXXX )
:SS
COUNTY OF BURLEIGH )
On this the 24th day of April, 2001, before me, Xxxx Xxxxxx, the
undersigned office, personally appeared Xxxxx Xxxxxxx, who acknowledged himself
to be the VP Energy Supply of Montana-Dakota Utilities Co., a Division of MDU
Resources Group, Inc., a corporation, and that he, as such VP Energy Supply
being authorized so to do, executed the foregoing instrument for the purposes
therein contained, by signing the name of the corporation by himself as VP
Energy Supply.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxx Xxxxxx
---------------------------------
Notary Public - North Dakota
My commission expires: 00-00-00
XXXXX XX XXXXX XXXXXX )
:SS
COUNTY OF MINNEHAHA )
On this the 20th day of April, 2001, before me, Xxxx Xxxxxxxx, the
undersigned office, personally appeared Xxxxxxx Xxxxxxx, who acknowledged
himself to be the VP, Energy Operations of Northwestern Public Service, a
Division of NorthWestern Corporation, a corporation, and that he, as such VP,
Energy Operations being authorized so to do, executed the foregoing instrument
for the purposes therein contained, by signing the name of the corporation by
himself as VP, Energy Operations.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxx Xxxxxxxx
---------------------------------
Notary Public - South Dakota
My commission expires: May 30, 0000
XXXXX XX XXXXX XXXXXX )
:SS
COUNTY OF GRANT )
On this the 18th day of April, 2001, before me the undersigned officer,
personally appeared Del Xxxxxxxx, who acknowledged himself to be the President
of the Board of Managers of Northern Lights Ethanol, LLC, a limited liability
company, and that he, as such President, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
the limited liability company by himself as President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------------
Notary Public - South Dakota
My commission expires: June 12, 2004
PREPARED BY:
Xxxxx X. Weiderrich
Xxxxxxxxx X. Xxxxx
Woods, Fuller, Xxxxxx & Xxxxx P.C.
000 Xxxxx Xxxxxxxx Xxx., Xxxxx 000
Post Office Xxx 0000
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000-0000
000-000-0000
EXHIBIT A
TO ACCESS AND RAIL AGREEMENT
[Plat Drawing of Easements No. 1 and No. 2 not reproduced]
EXHIBIT B
TO ACCESS AND RAIL AGREEMENT
[Plat Drawing of Big Stone Plant Railroad Line not reproduced]
EXHIBIT C
TO ACCESS AND RAIL AGREEMENT
[Plat Drawing of Access Road not reproduced]
EXHIBIT D
TO ACCESS AND RAIL AGREEMENT
The Grantor's Property is described as follows:
Northwest Quarter (NW 1/4) and the Northeast Quarter (NE 1/4) of Section
Thirteen (13), Township One-Hundred Twenty-One (121) North, Range Forty-Seven
(47) West of the Fifth (5th) P.M., Grant County, South Dakota.
Southeast Quarter of the Southwest Quarter (SE 1/4 SW 1/4), except Burlington
Northern Santa Fe railroad right-of-way; and the West Half of the Southeast
Quarter (W 1/2 SE 1/4) lying northerly of the present right-of-way of Chicago,
Milwaukee, St. Xxxx and Pacific Railway Company; and that part of Outlot 47
(which is also described as the Northeast Quarter of the Southeast Quarter (NE
1/4 SE 1/4), except Outlot Forty-Eight (48), and including the abandoned
right-of-way of the Chicago, Milwaukee, St. Xxxx and Pacific Railroad Company,
all in Section Eighteen (18), Township One-Hundred Twenty-One (121) North, Range
Forty-Six (46) West of the Fifth (5th) P.M., Grant County, South Dakota,
according to plat thereof on file and of record in the office of the Register of
Deeds of said county and state.
South Half of Northwest Quarter (S 1/2 NW 1/4); and the North Half of the
Southwest Quarter (N 1/2 SW 1/2), except railroad right-of-way; and except Hay's
Outlot located in the Northwest Quarter of the Southwest Quarter (NW 1/4 SW 1/4)
and the Southwest Quarter of the Northwest Quarter (SW 1/4 NW 1/4); and except a
metes and bounds tract of land described as follows: Commencing at the southwest
corner of the Northwest Quarter of the Southwest Quarter (NW 1/4 SW 1/4), thence
North Forty-Five (45) rods, thence East Sixteen (16) rods, thence South
Forty-Five (45) rods, thence West Sixteen (16) rods to the place of beginning
(now known as Xxxx 0, 0 xxx 0, Xxxxxx xx Xxx X in Northwest Quarter of the
Southwest Quarter (NW 1/4 SW 1/4) of 18-121-46), according to plat thereof on
file and of record in the office of the Register of Deeds of said county and
state.
North Half of the Northwest Quarter (N 1/2 NW 1/4), except township road deeded
at Deed Record 58, page 561, in Section Eighteen (18), Township One-Hundred
Twenty-One (121) North, Range Forty-Six (46) West of the Fifth (5th) P.M., Grant
County, South Dakota.
West One-Thousand Six-Hundred and Thirteen (1,613) feet of that part of the
Northeast Quarter (NE 1/4) lying South of the highway known as the Yellowstone
Trail, passing in an easterly direction through said quarter section, except
that part
deeded for cemetery purposes to St. Xxxxxxx Catholic Church, but including the
abandoned railroad right-of-way of the Chicago, Milwaukee, St. Xxxx and Pacific
Railway Co., all in Section Eighteen (18), Township One-Hundred Twenty-One (121)
North, Range Forty-Six (46) West of the Fifth (5th) P.M., Grant County, South
Dakota, according to plat thereof on file and of record in the office of the
Register of Deeds of said county and state.
Northeast Quarter (NE 1/4) lying North of the highway known as the Yellowstone
Trail, except the Cheese Company Outlot, in Section Eighteen (18), Township
One-Hundred Twenty-One (121) North, Range Forty-Six (46) West of the Fifth (5th)
P.M., Grant County, South Dakota, according to plat thereof on file and of
record in the office of the Register of Deeds of said county and state.
