EXHIBIT 10.15
Contract No. BF 20665
THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY
INDUSTRY TRACK AGREEMENT
THIS AGREEMENT ("Agreement") made as of this 8th day of January, 2002,
(hereinafter "Effective Date") by and between THE BURLINGTON NORTHERN AND SANTA
FE RAILWAY COMPANY, a Delaware corporation, hereinafter called "Railroad", and
NORTHERN LIGHTS ETHANOL, LLC, a(n) limited liability company, hereinafter called
"Industry".
WHEREAS, Industry desires that Railroad: (i) maintain and operate over certain
rail, ties, ballast, and appurtenances thereto shown as heavy solid on Exhibit
"A" attached hereto and incorporated herein ("Railroad Track"); and (ii) operate
over certain additional track shown as heavy hatched on Exhibit "A" ("Industry
Track"), (Railroad Track and Industry Track collectively, together with all
appurtenances, called "Track"), located at Big Stone City, Grant County, South
Dakota, to serve a facility operated by Industry ("Plant");
WHEREAS, 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 to the maintenance and operation of the Track on the following
terms and conditions:
OWNERSHIP OF TRACK
1. Railroad shall own the Railroad Track and Industry shall own the Industry
Track.
MAINTENANCE OF TRACK
2. (a) Maintenance for the purpose of this Agreement includes, but is not
limited to, responsibility for providing proper drainage along the
relevant portion of the Track and for keeping the Track free and clear
of snow, ice, vegetation, structures, and other obstacles. Maintenance
also includes, but is not limited to, responsibility for the
maintenance of grade crossing warning devices, stop signs, gates,
fences or barriers, roadway construction, track drainage facilities,
lighting, track signals and signal maintenance.
(b) Railroad shall, for the accommodation of and at the sole risk and
expense of Industry, maintain the Railroad Track.
(c) Industry shall at all times, and at its sole risk and expense,
maintain, or cause to be maintained, the Industry Track in a condition
satisfactory to Railroad and in compliance with all applicable Legal
Requirements as defined below. Without relieving Industry from any of
its obligations under this Agreement, Railroad may refuse to operate
over the Industry Track whenever Railroad, in its sole discretion,
determines that the Industry Track is unsatisfactory for Railroad's
operation. If
and when Industry has remedied such condition to Railroad's sole
satisfaction, Railroad shall resume operation over the Industry Track.
(d) Railroad's operation over the Track 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, and injury
to or death of persons that may result therefrom.
TERM
3. Unless earlier terminated as provided in Section 14, this Agreement shall
be in force for the term of ONE MONTH from its date and shall automatically
continue thereafter until terminated by either party giving to the other
thirty (30) days written notice of its desire to terminate the same.
COMPLIANCE WITH LAWS
4. (a) Industry shall be responsible for obtaining, without expense to
Railroad, all necessary real property rights and public authority and
permission, including applicable permits, for the maintenance and
operation of the Track.
(b) Industry further agrees that it will fulfill all its obligations and
exercise its rights hereunder in full compliance with all laws,
statutes, regulations, ordinances, orders, covenants and restrictions
(collectively, "Legal Requirements").
OPERATION OF TRACK
5. (a) Industry shall, at its sole expense, pay all costs for changes,
repairs or alterations to the Industry Track that may be necessary in
order to conform to any changes of grade or relocation of the Railroad
Track at the point of connection with the Industry Track, if such
change of grade or relocation is required to comply with any Legal
Requirement or is made for any other reason beyond Railroad's
reasonable control.
(b) In the event the Track is used for receiving, forwarding, or storing
hazardous materials as defined by any federal, state, or local
environmental law or regulation, Industry agrees to comply with all
applicable Legal Requirements and with Railroad's further requirements
concerning the same.
(c) In the event Industry desires to install any gates or fencing across
the Track, or to install a track scale, unloading pit, loading or
unloading device, adjustable loading dock, warehouse door, or any
other structure within Minimal Clearances as defined below
(collectively, "Facilities"), Industry shall first submit in writing
to Railroad the plans and specifications for such Facilities, and
secure written approval from Railroad, which may be withheld in
Railroad's sole discretion, before construction of any Facilities is
undertaken by Industry.
(d) Railroad may require for safety purposes that Industry, at its sole
cost and expense, provide flagmen, lights, traffic control devices,
automatic warning devices, or any such safety measure that Railroad
deems appropriate in connection with the Industry's use of the Track.
Industry shall reimburse Railroad within thirty (30) days of receipt
of xxxx rendered therefor for all costs expended by Railroad,
including but not limited to the cost of Railroad's Flagman ($500.00
per eight hour day, $95.00 per hour thereafter) in connection with
this Section.
(e) Industry shall construct, install, use, maintain, and repair all
Facilities at its sole risk and expense, in a manner and of materials
satisfactory to Railroad. Industry, during the installation,
construction, use, operation, renewal, relocation, modification,
maintenance and repair of these Facilities, shall exercise utmost and
extraordinary diligence to prevent damage to the property of Railroad
or injury to its agents, employees, invitees and contractors. The
presence of any Facilities must never be a source of danger to or
interfere with the safe operations of Railroad over the Track.
In furtherance of the foregoing obligation of Industry but not in
limitation of the same, Industry shall do, among others, the following
things:
Industry shall keep any gates across the Track open whenever
necessary, in Railroad's sole judgment, to enable Railroad to safely
and efficiently operate over the Track. Industry shall keep unloading
pits securely covered when not in actual use and at all times when the
Track is being switched by Railroad. Industry must keep all doors
firmly secured, and adjustable loading docks at warehouses shall
likewise be securely fastened in an upright position when not in
actual use and at all times when the Track is being switched by
Railroad. Industry shall operate and maintain all other Facilities so
as not to negatively affect the safe and efficient operation of
Railroad over Track.
(f) In the event the public authority having jurisdiction thereover orders
the separation of the grade of the Track and any street, road,
highway, other rail line or the like, Industry hereby consents to the
removal and/or relocation of the Track and shall reimburse Railroad
all expenses in connection with the removal and/or relocation of the
Track.
DEFINITION OF COST AND EXPENSE
6. (a) 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.
(b) All invoices are due thirty (30) days after the invoice date. In the
event that Industry shall fail to pay any monies due to Railroad
within thirty (30) days after the invoice date, then Industry shall
pay interest on such unpaid sum from thirty
(30) days after its invoice date to the date of payment by Industry at
an annual rate equal to (i) the greater of (a) for the period January
1 through June 30, the prime rate last published in THE WALL STREET
JOURNAL in the preceding December plus two and one-half percent (2
1/2%), and for the period July 1 through December 31, the prime rate
last published in THE WALL STREET JOURNAL in the preceding June plus
two and one-half percent (2 1/2%), or (b) twelve percent (12%), or
(ii) the maximum rate permitted by law, whichever is less.
RIGHT OF RAILROAD TO USE
7. All rights granted to the Industry hereunder are subject and subordinate to
the prior and continuing right of the Railroad, without liability to the
Industry or any other party for compensation or damages thereto: (i) to use
the Railroad Track; (ii) to construct, maintain, renew, use, operate,
change, modify or relocate the Railroad Track; and (iii) to allow to be
constructed upon its right-of-way such other facilities and to use its
right-of-way in any manner, each Railroad in its sole discretion deems
appropriate, provided Railroad uses all commercially reasonable efforts to
avoid material interference with the use of said Track as described herein.
CLEARANCES
8. (a) Industry shall not place, permit to be placed, or allow to remain, any
permanent or temporary material, structure, pole, or other obstruction
within 8 1/2 feet laterally from the center (nine and one-half (9-1/2)
feet on either side of the centerline of curved Track) or from 24 feet
vertically from the top of the rail of said Track ("Minimal
Clearances"), provided that if any Legal Requirement requires greater
clearances than those provided for in this Section 8, then Industry
shall strictly comply with such Legal Requirement. However, vertical
or lateral clearances which are less than the Minimal Clearances but
are in compliance with Legal Requirements will not be a violation of
this Section 8, so long as Industry strictly complies with the terms
of any such Legal Requirement.
(b) Railroad's operation over the Track with knowledge of an unauthorized
reduced clearance will not be a waiver of the covenants of Industry
contained in this Section 8 or of Railroad's right to recover and be
indemnified and defended against such damages to property, or injury
to or death of persons, that may result therefrom.
(c) 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.
PUBLIC ASSESSMENTS
9. Industry shall timely pay all compensation, assessments and levies required
at any time by a municipality, public authority, corporation, or person for
the privilege of maintaining and operating the Track, and shall not cause
or permit any liens to be filed against the Railroad Track or any Railroad
property. In the event any such liens are filed, Industry shall cause such
liens to be released within fifteen (15) days.
LIABILITY
10. (a) TO THE FULLEST EXTENT PERMITTED BY LAW, INDUSTRY SHALL RELEASE,
INDEMNIFY, DEFEND AND HOLD HARMLESS RAILROAD AND RAILROAD'S AFFILIATED
COMPANIES, PARTNERS, SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES,
OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY,
"INDEMNITEES") FOR, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES,
FINES, PENALTIES, COSTS, DAMAGES, LOSSES, LIENS, CAUSES OF ACTION,
SUITS, DEMANDS, JUDGMENTS AND EXPENSES (INCLUDING, WITHOUT LIMITATION,
COURT COSTS, ATTORNEYS' FEES AND COSTS OF INVESTIGATION, REMOVAL AND
REMEDIATION AND GOVERNMENTAL OVERSIGHT COSTS) ENVIRONMENTAL OR
OTHERWISE (COLLECTIVELY "LIABILITIES") OF ANY NATURE, KIND OR
DESCRIPTION OF ANY PERSON OR ENTITY DIRECTLY OR INDIRECTLY ARISING OUT
OF, RESULTING FROM OR RELATED TO (IN WHOLE OR IN PART):
(i) THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ITS
ENVIRONMENTAL PROVISIONS,
(ii) ANY RIGHTS OR INTERESTS GRANTED PURSUANT TO THIS AGREEMENT,
(iii) INDUSTRY'S OCCUPATION AND USE OF RAILROAD'S PROPERTY OR THE
USE OF AND OPERATION BY RAILROAD UPON INDUSTRY'S PROPERTY,
(iv) THE ENVIRONMENTAL CONDITION AND STATUS OF THE TRACK OR
RAILROAD'S PROPERTY CAUSED OR AGGRAVATED BY, OR CONTRIBUTED TO,
IN WHOLE OR IN PART, BY INDUSTRY,
(v) THE ENVIRONMENTAL CONDITION AND STATUS OF INDUSTRY'S PLANT,
OR
(vi) ANY ACT OR OMISSION OF INDUSTRY OR INDUSTRY'S OFFICERS,
AGENTS, INVITEES, EMPLOYEES, OR CONTRACTORS, OR ANYONE DIRECTLY
OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANYONE THEY CONTROL OR
EXERCISE CONTROL OVER,
EVEN IF SUCH LIABILITIES ARISE FROM OR ARE ATTRIBUTED TO, IN WHOLE OR
IN PART, ANY NEGLIGENCE OF ANY INDEMNITEE. THE ONLY LIABILITIES WITH
RESPECT TO WHICH INDUSTRY'S OBLIGATION TO INDEMNIFY THE INDEMNITEES
DOES NOT APPLY ARE LIABILITIES TO THE EXTENT PROXIMATELY CAUSED BY THE
GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AN INDEMNITEE.
(b) FURTHER, NOTWITHSTANDING THE LIMITATION IN SECTION 10(a), INDUSTRY NOW
AND FOREVER WAIVES ANY AND ALL CLAIMS, REGARDLESS WHETHER BASED ON THE
STRICT LIABILITY, NEGLIGENCE OR OTHERWISE, THAT RAILROAD IS AN
"OWNER", "OPERATOR", "ARRANGER", OR "TRANSPORTER" OF INDUSTRY'S PLANT
OR INDUSTRY TRACK FOR THE PURPOSES OF CERCLA OR OTHER ENVIRONMENTAL
LAWS. INDUSTRY WILL INDEMNIFY, DEFEND AND HOLD THE INDEMNITEES
HARMLESS FROM ANY AND ALL SUCH CLAIMS REGARDLESS OF THE NEGLIGENCE OF
ANY INDEMNITEES. INDUSTRY FURTHER AGREES THAT THE USE OF THE TRACK AS
CONTEMPLATED BY THIS AGREEMENT SHALL NOT IN ANY WAY SUBJECT RAILROAD
TO CLAIMS THAT RAILROAD IS OTHER THAN A COMMON CARRIER FOR PURPOSES OF
ENVIRONMENTAL LAWS AND EXPRESSLY AGREES TO INDEMNIFY, DEFEND, AND HOLD
THE INDEMNITEES HARMLESS FOR ANY AND ALL SUCH CLAIMS. IN NO EVENT
SHALL RAILROAD BE RESPONSIBLE FOR THE ENVIRONMENTAL CONDITION OF
INDUSTRY'S PLANT OR INDUSTRY'S TRACK UNDER THIS AGREEMENT.
(c) INDUSTRY FURTHER AGREES, REGARDLESS OF ANY NEGLIGENCE OR ALLEGED
NEGLIGENCE OF ANY INDEMNITEE, TO INDEMNIFY, AND HOLD HARMLESS THE
INDEMNITEES AGAINST AND ASSUME THE DEFENSE OF ANY LIABILITIES ASSERTED
AGAINST OR SUFFERED BY ANY INDEMNITEE UNDER OR RELATED TO THE FEDERAL
EMPLOYERS' LIABILITY ACT ("FELA") WHENEVER EMPLOYEES OF INDUSTRY OR
ANY OF ITS AGENTS, INVITEES, CONTRACTORS CLAIM OR ALLEGE THAT THEY ARE
EMPLOYEES OF ANY INDEMNITEE OR OTHERWISE. THIS INDEMNITY SHALL ALSO
EXTEND, ON THE SAME BASIS, TO FELA CLAIMS BASED ON ACTUAL OR ALLEGED
VIOLATIONS OF ANY FEDERAL, STATE OR LOCAL LAWS OR REGULATIONS,
INCLUDING BUT NOT LIMITED TO THE SAFETY APPLIANCE ACT, THE BOILER
INSPECTION ACT, THE OCCUPATIONAL HEALTH AND SAFETY ACT, THE RESOURCE
CONSERVATION AND RECOVERY ACT, AND ANY SIMILAR STATE OR FEDERAL
STATUTE.
(d) Upon written notice from Railroad, Industry agrees to assume the
defense of any lawsuit or other proceeding brought against any
Indemnitee by any entity, relating to any matter covered by this
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,
attorneys' fees, investigators' fees, litigation and appeal expenses,
settlement payments, and amounts paid in satisfaction of judgments.
(e) In the event Licensee causes any improvement of material or labor to
be effected upon the Railroad's Property, Licensee shall, at its sole
cost and expense, furnish to Railroad, in a form acceptable to
Railroad, a fully executed Performance and Payment Bond, by a surety
or sureties approved by Railroad, in the amount of [150% of the cost
of the improvement], as security for the faithful performance of this
Agreement and for payment of all persons performing labor or
furnishing materials or equipment in connection therewith.
INSURANCE
11. Industry shall, at its sole cost and expense, procure and maintain during
the life of this Agreement the following insurance coverage:
(a) Commercial General Liability insurance. This insurance shall contain
broad form contractual liability with a combined single limit of a
minimum of $5,000,000 each occurrence and an aggregate limit of at
least $10,000,000. Coverage must be purchased on a post 1998 ISO
occurrence or equivalent and include coverage for, but not limited to,
the following:
- Bodily Injury and Property Damage
- Personal Injury and Advertising Injury
- Fire legal liability
- Products and completed operations
This policy shall also contain the following endorsements, which shall
be indicated on the certificate of insurance:
- It is agreed that any workers' compensation exclusion does not
apply to Railroad payments related to the Federal Employers
Liability Act or a Railroad Wage Continuation Program or
similar programs and any payments made are deemed not to be
either payments made or obligations
assumed under any Workers Compensation, disability benefits,
or unemployment compensation law or similar law.
- The definition of insured contract shall be amended to remove
any exclusion or other limitation for any work being done
within 50 feet of railroad property.
- Any exclusions related to the explosion, collapse and
underground hazards shall be removed.
No other endorsements limiting coverage may be included on the policy.
(b) Business Automobile Insurance. This insurance shall contain a combined
single limit of at least $1,000,000 per occurrence, and include
coverage for, but not limited to the following:
- Bodily injury and property damage
- Any and all vehicles owned, used or hired
(c) Workers Compensation and Employers Liability insurance including
coverage for, but not limited to:
- Industry's statutory liability under the worker's compensation
laws of the state(s) in which the work is to be performed. If
optional under State law, the insurance must cover all
employees anyway.
- Employers' Liability (Part B) with limits of at least $500,000
each accident, $500,000 by disease policy limit, $500,000 by
disease each employee.
- All such coverage shall include coverage for the Federal
Employers Liability Act and include an alternate employer
endorsement naming Railroad as the alternate employer with
coverage for the Federal Employers Liability Act. The term
Alternate Employer as used herein and above is being used
solely as an insurance term of art. By Contractor's actions of
obtaining insurance coverage as set forth above Contractor is
in no way intending or evidencing an alternate or dual
employment relationship with Railroad. The parties agree: (1)
Railroad has no right to direct or control Contractor's
employees with respect to the physical conduct or the
performance of services; (2) Railroad does not supervise, nor
does it have the right to supervise, details of Contractor's
employees' work or the manner in which such work is
accomplished; (3) Railroad retains no control over the details
of the Contractor's employees' work; and (4) Railroad has no
right to select, hire, train or fire Contractor's employees.
Other Requirements:
All policies (applying to coverage listed above) shall contain no
exclusion for punitive damages and certificates of insurance shall
reflect that no exclusion exists.
Industry agrees to waive its right of recovery against Railroad for
all claims and suits against Railroad. In addition, its insurers,
through policy endorsement, waive their right of subrogation against
Railroad for all claims and suits. The certificate of insurance must
reflect waiver of subrogation endorsement. Industry further waives its
right of recovery, and its insurers also waive their right of
subrogation against Railroad for loss of its owned or leased property
or property under its care, custody or control.
Industry's insurance policies through policy endorsement must include
wording which states that the policy shall be primary and
non-contributing with respect to any insurance carried by Railroad.
The certificate of insurance must reflect that the above wording is
included in evidenced policies.
All policy(ies) required above (excluding Workers Compensation and if
applicable, Railroad Protective) shall include a severability of
interest endorsement and shall name Railroad and Staubach Global
Services, Inc. as an additional insured with respect to work performed
under this agreement. Severability of interest and naming Railroad and
Staubach Global Services, Inc. as additional insured shall be
indicated on the certificate of insurance.
Industry is not allowed to self-insure without the prior written
consent of Railroad. If granted by Railroad, any deductible,
self-insured retention or other financial responsibility for claims
shall be paid directly by Industry. Any and all Railroad liabilities
that would otherwise, in accordance with the provisions of this
Agreement, be covered by Industry's insurance shall be paid by
Industry as if Industry elected not to include a deductible,
self-insured retention or other financial responsibility for claims.
Prior to commencing the Work, Industry shall furnish to Railroad an
acceptable certificate(s) of insurance including an original signature
of the authorized representative evidencing the required coverage,
endorsements, and amendments and referencing the contract audit/folder
number if available. The policy(ies) shall contain a provision that
obligates the insurance company(ies) issuing such policy(ies) to
notify Railroad in writing at least 30 days prior to any cancellation,
substitution or material alteration. This cancellation provision shall
be indicated on the certificate of insurance. Upon request from
Railroad, a certified duplicate original of any required policy shall
be furnished.
Any insurance policy shall be written by a reputable insurance company
acceptable to Railroad or with a current Best's Guide Rating of A- and
Class VII or better, and authorized to do business in the state(s) in
which the service is to be provide.
Industry WARRANTS that this Agreement has been thoroughly reviewed by
Industry's insurance agent(s)/broker(s), who have been instructed by
Industry to procure the insurance coverage required by this Agreement.
Allocated Loss Expense shall be in addition to all policy limits for
coverages referenced above.
Not more frequently than once every five years, Railroad may
reasonably modify the required insurance coverage to reflect
then-current risk management practices in the railroad industry and
underwriting practices in the insurance industry.
If any portion of the operation is to be subcontracted by Industry,
Industry shall require that the subcontractor shall provide and
maintain insurance coverage as set forth herein, naming Railroad as an
additional insured, and shall require that the subcontractor shall
release, defend and indemnify Railroad to the same extent and under
the same terms and conditions as Industry is required to release,
defend and indemnify Railroad herein.
Failure to provide evidence as required by this section shall entitle,
but not require, Railroad to terminate this Agreement immediately.
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.
For purposes of this section, Railroad shall mean "Burlington Northern
Santa Fe Corporation", "The Burlington Northern and Santa Fe Railway
Company" and the subsidiaries, successors, assigns and affiliates of
each.
ENVIRONMENTAL
12. (a) Industry shall strictly comply with all federal, state and local
environmental laws and regulations in its use of the Track, including,
but not limited to, the Resource Conservation and Recovery Act, as
amended (RCRA), the Clean Water Act, the Oil Pollution Act, the
Hazardous Materials Transportation Act, CERCLA (collectively referred
to as the "Environmental Laws"). Industry shall not maintain a
treatment, storage, transfer or disposal facility, or underground
storage tank, as defined by Environmental Laws on, under, or within
the Minimal Clearances of the Track. Industry 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.
(b) Industry shall give Railroad immediate notice to Railroad's Resource
Operations Center at (000) 000-0000 of any release of hazardous
substances on or from the Track, violation of Environmental Laws, or
inspection or inquiry by governmental
authorities charged with enforcing Environmental Laws 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.
(c) 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 sole risk and expense, to take timely measures
to investigate, remediate, respond to or otherwise cure such release
or violation affecting the Plant, Track or Railroad's right-of-way.
(d) Industry shall promptly report to Railroad in writing any conditions
or activities upon the Plant 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.
DEFAULT
13. (a) If Industry creates or maintains any condition, including without
limitation, any environmental condition, on or about the Track, which
in Railroad's sole judgment interferes with or endangers the
operations of Railroad, or in case of any assignment or transfer of
this Agreement by operation of law, Railroad may, at its option,
terminate this Agreement by serving five (5) days' notice in writing
upon Industry.
(b) Except as otherwise set forth in subparagraph (a) above, if Industry
defaults on any of the covenants or agreements of Industry contained
in this document, for a period of thirty (30) days following written
notice of such default by Railroad, Railroad may, at its option,
terminate this Agreement on five (5) days' notice in writing to
Industry.
Any waiver by Railroad of any default or defaults shall not constitute
a waiver of the right to terminate this Agreement for any subsequent
default or defaults, nor shall any such waiver in any way affect
Railroad's ability to enforce any Section of this Agreement. The
remedy set forth in this Section 13 shall be in addition to, and not
in limitation of, any other remedies that Railroad may have at law or
in equity.
TERMINATION
14. (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 the maintenance and operation of the
Track and remove the Railroad Track, in the event of any of the
following contingencies:
(i) If Industry fails to utilize rail service from Railroad to or from
the Plant for a period of eight (8) months in any period of twelve
(12) months, Railroad may, at its option, expressed in writing,
terminate this Agreement, effective immediately.
(ii) If Railroad is authorized by competent public authority to
abandon its line to which said Track is connected, Railroad may, upon
written notice to Industry, terminate this Agreement effective
immediately.
(iii) If 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) Upon the expiration or earlier termination of this Agreement as
provided herein, Industry shall, at its sole cost and expense, remove
any Facilities or improvements upon, over, or under the Track and
restore the Railroad's right-of-way to substantially the state in
which it was on the Effective Date of this Agreement. In the event
Industry shall fail within thirty (30) days after the date of such
termination to make such removal and restoration, the Railroad may, at
its option, remove the Facilities or improvements or otherwise restore
its right-of-way, and in such event Industry shall, within thirty (30)
days after receipt of a xxxx therefor, reimburse Railroad for any
costs incurred.
(c) Industry hereby agrees to waive and release all claims, rights, and
causes of action that Industry has, may have, or may assert against
Railroad because of the discontinuance of operation and removal of the
Railroad Track as provided in this Section 14 of this Agreement.
JOINT USE BY OTHER RAILROADS
15. This Agreement is also made for the benefit of such other railroads which,
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.
ASSIGNMENT
16. This Agreement will inure to the benefit of and be binding upon the
successors and assigns of the parties hereto; provided, however, that
Industry may not assign this
Agreement without the prior written consent of Railroad, which may be
withheld in Railroad's sole discretion.
Either party hereto may assign any receivables due them under this
Agreement; provided, however, that such assignments will not relieve the
assignor of any of its rights or obligations under this Agreement.
NOTICES
17. 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.
FOR INDUSTRY: FOR RAILROAD:
------------ ------------
Northern Lights Ethanol, LLC Staubach Global Services
0000 Xxxx Xxxxxx Xxxxxx 0000 X. Xxxxxxxxx Xx., Xxx. 000
Xxxxxxx, Xxxxx Xxxxxx 00000 Xxxx Xxxxx, Xxxxx 00000-0000
SURVIVAL
18. 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, Facilities, and improvements are removed and the right-of-way is
restored to its condition as of the Effective Date.
RECORDATION
19. It is understood and agreed that this Agreement shall not be placed of
public record.
APPLICABLE LAW
20. All questions concerning the interpretation or application of provisions of
this Agreement shall be decided according to the laws of the State of
Texas.
SEVERABILITY
21. 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
22. 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.
MISCELLANEOUS
23. In the event that the Industry consists of two of more parties, all
covenants and agreements of Industry herein contained shall be the joint
and several covenants and agreements of such parties.
24. The waiver by Railroad of the breach of any provision herein by Industry
shall in no way impair the right of Railroad to enforce that provision for
any subsequent breach thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate the day and year first herein above written.
THE BURLINGTON NORTHERN AND
SANTA FE RAILWAY COMPANY
c/o Staubach Global Services
0000 X. Xxxxxxxxx Xx., Xxx. 000
Xxxx Xxxxx, Xxxxx 00000-0000
By: /s/ M.E. Xxxxxx
-------------------------------
M. E. Xxxxxx
Director Industrial Development
NORTHERN LIGHTS ETHANOL, LLC 0000
Xxxx Xxxxxx Xxxxxx Xxxxxxx, Xxxxx
Xxxxxx 00000
By: /s/ Del Xxxxxxxx
-------------------------------
Title: President
----------------------------
EXHIBIT A
[Plat Drawing of Track not reproduced]
