BNSF RAILWAY COMPANY
LEASE OF LAND FOR CONSTRUCTION/REHABILITATION OF
TRACK
THIS LEASE OF
LAND FOR CONSTRUCTION/REHABILITATION OF TRACK
(“Lease”) is made as of the 22
nd day of June, 2006 ( “Effective
Date” ), by and between BNSF RAILWAY COMPANY , a
Delaware corporation (hereinafter called “
Railroad” ), and E Energy Adams, LLC. a(n) a limited
liability corporation, formed under the Laws (as hereinafter
defined) of Nebraska, (hereinafter, whether one part or more,
called “ Industry ”).
A. Railroad
owns or controls certain land situated at or near the railway
station of Adams, County of Gage, State of Nebraska, as described
or shown on the print hereto attached, dated 5/11/05, marked
Exhibit “A” , and made a part of this
Lease (“ Premises ”).
B. Railroad
and Industry have entered into that certain Industry Track
Agreement (“ Track Agreement ”) dated effective
June 22, 2006, relating to the operation and maintenance of
that certain Railroad Track (as defined in the Track Agreement) and
that certain Industry Track (as defined in the Track Agreement)(the
Railroad Track and Industry Track to be collectively referred to
herein as the “ Track ”) located on or near the
Premises to serve the Plant (as defined in the Track
Agreement).
C. The
parties desire to enter into this Lease to allow Industry to occupy
the Premises for the construction of the Track and the performance
of certain activities related to the Track.
NOW
THEREFORE, in consideration of the mutual covenants contained
herein, the parties agree as follows:
1.
(a) Railroad hereby lease to Industry, subject to all rights,
interest and estates of third parties, and upon the terms and
conditions set forth below, the Premises for the Permitted Uses (as
hereinafter defined).
(b) In the
event Industry requires access to and from the Premises by use of
the Railroad Track or Railroad’s property adjacent to the
Premises, Railroad hereby grants Industry a non-exclusive license
and permission to enter upon Railroad’s property for such
purpose. Railroad shall, at its sole discretion, designate the
location or route to be used by Industry. For the purposes of this
Lease, the designated access, whether specifically defined or not,
is included in the definition of Premises
2. Industry
shall use the Premises exclusively as a site for (i) the
performance of Routine Activities (as hereinafter defined) and
(ii) Major Construction (as hereinafter defined) related
to
the Track and
for no other purposes (collectively, the “ Permitted
Uses ”). Industry shall provide all relevant information
to Railroad’s inquiries regarding the use or condition of the
Premises. Railroad may enter the Premises at any time Railroad
desires to inspect the Premises. For purposes of this
Lease:
(a) “
Routine Activities ” shall mean Industry’s
normal maintenance and operation of the Track that does not include
Major Construction. Routine Activities shall be deemed to include,
but no be limited to, those normal maintenance and operating
activities further described in the Track Agreement so long as such
normal maintenance and operating activities described in the Track
Agreement do not involve Major Construction.
(b) “
Major Construction ” shall mean planning, designing,
construction, erection, installation, modification, repair,
maintenance, reconstruction, rehabilitation, reinstallation,
removal, relocation or replacement of the Track that includes:
(i) activities requiring the excavation of soil that would
alter or disturb the Premises; (ii) activities requiring the
use of heavy machinery within fifty (50) feet of the Track or
upon the Premises; (iii) activities involving the Fouling (as
hereinafter defined) of the Track; (iv) activities creating a
significant risk of the Fouling of the Track; or
(v) activities requiring the sheltering of the
Industry’s Facilities (as hereinafter defined) or Equipment
(as hereinafter defined) in shelters located closer than 25 feet
from the nearest portion of the Track. In addition, the parties
agree that all activities on the Premises prior to the Revenue
Commencement Date (as hereinafter defined) shall be deemed to be
“Major Construction” even if such activities do not
include activities described in (i), (ii), (iii), (iv) or
(v) above.
(c) “
Revenue Commencement Date ” shall mean the first date
that initial construction/rehabilitation of the Track is complete
to the point that railroad cars can operate over the
Track.
(d) “
Fouling” or “Fouled” shall mean the
existence, movement or placement of equipment and/or personnel on
the Track or within twenty-five (25) feet vertically or
laterally of the centerline Track, or any other activity which in
Railroad’s sole opinion may interfere with any operations of
Railroad.
3. Unless
earlier terminated as hereinafter provided, this Lease shall be in
force for a term commencing on the Effective 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 Lease. Notwithstanding the foregoing,
upon the expiration or earlier termination of the Track Agreement,
Railroad may, in its sole discretion upon notice to Industry,
immediately terminate this Lease.
4. Industry
shall pay to Railroad, prior to the Effective Date of this Lease, a
one-time sum of $500 for the lease of the Premises.
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COMPLIANCE WITH LAWS AND RAILROAD
REQUIREMENTS
5.
(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 Premises provided Industry obtains
prior written consent from Railroad.
(b) Industry
has examined the Premises and accepts the condition thereof
“AS IS” and shall exercise its rights and fulfill its
obligations under this Lease in full compliance with all laws,
statutes, regulations, ordinances, orders, covenants, restrictions,
or decisions of any court of competent jurisdiction (referred to
herein as “ Law ” or “ Laws
”), including without limitation all Environmental Laws (as
hereinafter defined), relating to the use of the Premises, Track,
Facilities or Equipment.
(c) Prior to
entering the Premises, Industry shall and shall cause its
contractor(s) to comply with all Railroad’s applicable safety
rules and regulations. Prior to commencing any Major Construction
or Routine Activities on the Premises, Industry shall complete and
shall require its contractor(s) to complete the safety-training
program at the Railroad’s Internet Website
“http://contractororientation.com”. This training must
be completed no more than one year in advance of Industry’s
entry of the Premises.
(d) Prior to
any contractor of Industry entering the Premises, Industry shall
cause each such contractor to enter into and comply with
Railroad’s standard Contractor’s Right of Entry
Agreement (“ Right of Entry Agreement ”) in the
form attached hereto as Exhibit “D” and
incorporated herein by this reference.
USE AND
MAINTENANCE OF PREMISES
6.
(a) Industry shall at all times, and at its sole risk and
expense, maintain, or cause to be maintained, the Premises, Track
and all Facilities and Equipment (if any) in a safe and
satisfactory condition, in compliance with all applicable Laws and
in a condition satisfactory to Railroad. Industry shall not cause,
permit, commit, or maintain any waste or nuisance in or about the
Premises.
(b) Maintenance
for the purpose of this Lease includes, but is not limited to,
responsibility for providing property drainage along the relevant
portion of the Track and for keeping the Track free and clear of
snow, ice, vegetations, structures, and other obstacles.
Maintenance also includes, but is not limited to, responsibility
for the maintenance of grade crossing warning devices, passive
warning signs, stop signs, gates, fences, barriers, roadways and
roadway construction, track drainage facilities, lighting, track
signals and signal maintenance.
(c) If
Industry installs any gates or fencing across the Track, or the
track scale, unloading pits, loading or unloading device,
adjustable loading dock, warehouse door, or any other structure
(collectively, “ Facilities ”) affecting the
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
Track. Industry shall also be solely responsible for assuring the
safe and satisfactory condition of all of Industry’s
equipment
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touching, used
in conjunction with or affecting the Track (“
Equipment ”) and shall not allow any Equipment to be a
source of danger to the safe operation of the Track. Before
utilizing or unloading any equipment spotted onto the 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 adversely affect the safe and efficient operation over the
Track. Industry shall, among other things: 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; 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 Track is being switched by
Railroad.
(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 Industry’s use of the
Premises for the Permitted Uses identified in Section 2
above. Industry shall reimburse Railroad within thirty (30) days of
receipt of a bill rendered for all such costs expended by Railroad,
including but not limited to the furnishing of Railroad’s
Flagman and any vehicle rental costs incurred. The cost of flagger
services provided by the Railroad, when deemed necessary by the
Railroad’s representative, will be borne by the Industry. The
estimated cost for one (1) flagger is $600.00 for an eight (8)
hour basic day with time and one-half or double time for overtime,
rest days, and holidays. The estimated cost for each flagger
includes vacation allowance, paid holidays, Railroad and
unemployment insurance, public liability and property damage
insurance, health and welfare benefits, transportation, meals,
lodging and supervision. Negotiations for Railway labor or
collective bargaining agreements and rate changes authorized by
appropriate Federal authorities may increase actual or estimated
flagging rates. The flagging rate in effect at the time of
performance by the Contractor hereunder will be used to calculate
the actual costs of flagging pursuant to this paragraph.
(e) Industry
shall notify Railroad’s representative Roadmaster Lloyd Hide
at telephone 402-458-7637, five (5) days prior to commencing
any construction or rehabilitation of the Track on the
Premises.
(f) All
alterations, additions, or betterments to the Premises, other than
the rails and the ties shall upon construction become the sole
property of Railroad.
(g) Industry
agrees that Railroad shall not be required to furnish to Industry
any water, light, power or any other services in connection with
the use of the Premises.
(h) Notwithstanding
anything contained herein to the contrary, in the event of any
conflict between the terms of this Lease and the Track Agreement
with regard to the use and maintenance of the Premises the most
stringent provision or requirement applicable to the Industry will
control.
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DEFINITION OF COST AND
EXPENSE
7. (a) For
purposes of this lease, “cost” or “costs”
or “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 date of invoice.
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 applicable Law, whichever is less.
8. Railroad
excepts and reserves the right to be exercised by Railroad and any
other parties who may obtain written permission or authority from
Railroad:
(a) to
maintain, renew, use, operate, change, modify and relocate any
existing pipe, power, communication lines and appurtenances and
other facilities or structures of like character upon, over, under
or across the Premises;
(b) to
construct, maintain, renew, use, operate, change, modify and
relocate any tracks or additional facilities or structures upon,
over, under or across the Premises; or
(c) to use
the Premises in any manner as the Railroad in its sole discretion
deems appropriate, provided Railroad uses all commercially
reasonably efforts to avoid material interference with the use of
the Premises by Industry for the Permitted Uses specified in
Section 2 above.
9.
(a) Industry shall not 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 the Track (“ Minimal Clearances ”), provided
that if any Law requires greater clearances than those provided for
in this Section 9 , then Industry shall strictly comply
with such Law. However, lateral or vertical clearances which are
less than Minimal Clearances but are in compliance with applicable
Laws will not be a violation of the Section 9 , so long
as Industry strictly complies with the terms of any such
Law.
(b) Railroad
or Industry’s operation over the Track with Railroad’s
knowledge of an unauthorized reduced clearance will not be a waiver
of the covenants of Industry contained in this
Section 9 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.
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(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
Premises.
10.
(a) The provisions of this Section 10 shall apply
to Industry throughout the term of this Lease; provided, however,
the provisions of Exhibit “B” attached
hereto and incorporated herein by this reference, shall also apply
to Industry during: (i) all periods of Major Construction to
the extent Industry self-performs all or any portion of such Major
Construction, and (ii) all periods during which
Industry’s contractor(s) are on the Premises and Industry has
failed to cause its contractor(s) to timely enter into and fully
comply with Railroad’s Right of Entry Agreement.
(i) INDUSTRY SHALL RELEASE, INDEMNIFY, DEFEND, AND HOLD
RAILROAD AND RAILROAD’S AFFILIATED COMPANIES, PARTNERS,
SUCCESSORS, ASSIGNS, LEGAL REPRESENTATIVES, OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS (COLLECTIVELY, THE
“INDEMNITEES”) HARMLESS FROM AND AGAINST ALL CLAIMS,
LIABILITIES, FINES, PENALITIES, 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”) 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 LEASE, UNDER CERCLA OR OTHER
ENVIRONMENTAL LAWS, RAILROAD IS (I) AN “OWNER”,
“OPERATOR”, “ARRANGER” OR
“TRANSPORTER” OF THE TRACK, OR (II) OTHER THAN A
COMMON CARRIER WITH RESPECT TO THE TRACK, REGARDLESS OF ANY
NEGLIGENCE OR STRICT LIABILITY OF ANY INDEMNITEE.
(ii) IF ANY EMPLOYEE OF INDUSTRY OR INDUSTRY’S
OFFICERS, AGENTS, INVITESS, LICENSEES, EMPLOYEES, OR CONTRACTORS,
OR ANY PARTY DIRECTLY OR INDIRECTLY EMPLOYED BY ANY OF THEM, OR ANY
PARTY THEY CONTROL OR EXERCISE CONTROL OVER (COLLECTIVELY,
“INDUSTRY PARTIES”) CLAIMS HE OR SHE IS AN EMPLOYEE OF
ANY INDEMNITEE, INDUSTRY SHALL INDEMNIFY AND 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, CLIAMS RELATED TO PROCEEDINGS UNDER OR RELATED TO THE FEDERAL
EMLOYERS’ LIABILITY ACT, THE SAFETY APPLIANCE ACT, THE BOILER
INSPECTION ACT, THE OCCUPATIONAL SAFETY AND
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HEALTH 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.
(b) Upon
written notice from Railroad, Industry agrees to assume the defense
of any lawsuit or other proceedings brought against any Indemnitee
by any entity, relating to any matter covered by this Lease 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.
11.
ALL PERSONAL PROPERTY, INCLUDING, BUT NOT LIMITED TO, FIXTURES,
EQUIPMENT, OR RELATED MATERIALS UPON THE PREMISES WILL BE AT THE
RISK OF INDUSTRY ONLY, AND NO INDEMNITEE WILL BE LIABLE FOR ANY
DAMAGE THERETO OR THEFT THEREOF, WHETHER OR NOT DUE IN WHOLE OR IN
PART TO THE NEGLIGENCE OF ANY INDEMNITEE.
12.
(a) The provisions of this Section 12 shall apply
to Industry throughout the term of this Lease, provided, however,
the provisions of Exhibit “C” , attached
hereto and incorporated herein by this reference, shall also apply
to Industry during: (i) all periods of Major Construction, to
the extent Industry self-performs all or any portion of such Major
Construction, and (ii) all periods during which
Industry’s contractor(s) are on the Premises and Industry has
failed to cause its contractor(s) to timely enter into and fully
comply with Railroad’s Right of Entry Agreement. Throughout
the term of this Lease, Industry shall at its sole cost and expense
procure and maintain 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 $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 and Products and
completed operations. 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.
B.
Workers Compensation and Employers Liability insurance including
coverage for, but not limited to:
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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.
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Employers’ Liability
(Part B) with limits of at least $500,000 each accident
$500,000 by disease policy limit, $500,000 by disease of each
employee.
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(b) In
addition to the foregoing, the following other requirements shall
apply to this Section 12:
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.
Prior to
commencing operations governed by this Lease, 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 provisions 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.
Failure to provide
evidence as required by this Section 12 shall entitle,
but not require, Railroad to terminate this Lease immediately.
Acceptance of a certificate that does not comply with this
Section 12 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 Lease. Damages recoverable by Railroad
shall not be limited by the amount of the required insurance
coverage.
(c) For
purposes of this Section 12 , Railroad shall mean
“Burlington Northern Santa Fe Corporation”, “BNSF
RAILWAY COMPANY” and the subsidiaries, successors, assigns,
and affiliates of each.
13. (a) “
Environmental Law(s) ” shall mean any federal, state,
or local law, statute, ordinance, code, rule, regulation, policy,
common law, license, authorization, decision, order, or injunction
which pertains to health safety, any Hazardous Material (as
hereinafter defined), or the environment (including but not limited
to ground, air, water, or noise pollution or contamination, and
underground or above-ground tanks) and shall include, without
limitation, the Resource Conservation and Recovery Act 42 U.S.C.
§6901 et seq., the Comprehensive Environmental Response.
Compensation and Liability Act of 1980, 42 U.S.C. §9601 et
seq. (“ CERCLA ”); the Hazardous Materials
Transportation Act, 49 U.S.C. §1801 et seq.; the Federal Water
Pollution Control Act, 33 U.S.C. §1251 et seq.; the Clean Air
Act, 42 U.S.C. §7401 et seq.; the Toxic Substances Control
Act, 15 U.S.C. §2601 et seq.; the Safe Drinking Water
Act,
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42 U.S.C.
§300f et seq.; the Emergency Planning and Community
Right-to-Know Act, 42 U.S.C. 11001 et seq.; the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. 136 to 136y;
the Oil Pollution Act, 33 U.S.C. 2701 et seq.; and the Occupational
Safety and Health Act, 29 U.S.C. 651 et seq.; all as have been
amended from time to time, and any other federal, state, or local
environmental requirements, together with all rules, regulations,
orders, and decrees now or hereafter promulgated under any of the
foregoing as any of the foregoing now exist or may be changed or
amended or come into effect in the future.
(b) “
Hazardous Material(s) ” shall include but shall not be
limited to any substance, material or waste that is regulated by
any Environmental Law or otherwise regulated by any federal, state,
or local governmental authority because of toxic, flammable,
explosive, corrosive, reactive, radioactive or other properties
that may be hazardous to human health or the environment including
without limitation asbestos and asbestos-containing materials,
radon, petroleum and petroleum products, urea formaldehyde foam
insulation, methane, lead-based paint, polychlorinated biphenyl
compounds, hydrocarbons or like substances and their additives or
constituents, pesticides, agricultural chemicals, and any other
special, toxic, or hazardous substances, materials or wastes of any
kind, including without limitation those now or hereafter defined,
determined or identified as “hazardous chemicals,”
“hazardous substances,” “hazardous
materials,” “toxic substances,” or
“hazardous wastes” in any Environmental Law.
(c) Industry
shall strictly comply with all Environmental Laws. Industry shall
not maintain any treatment, storage transfer or disposal facility,
or underground storage tank, as defined by Environmental Laws, on
the Premises. Industry shall not release or suffer the release of
oil or Hazardous Materials, as defined by Environmental Laws, on or
about the Premises.
(d) Except as
authorized in advance in writing by Railroad, Hazardous Materials
are not permitted on the Premises. Any Hazardous Materials so
permitted by Railroad shall be place, generated, used, received,
maintained, treated, stored and disposed of by Industry in a manner
consistent with good engineering practice and in strict accordance
with all Environmental Laws. Use or storage on the Premises of any
Hazardous Materials that are not previously authorized by Railroad
in writing in advance of such use or storage is a breach of the
Lease.
(e) Industry
shall give Railroad immediate notice to Railroad’s Resource
Operations Center at (800) 832-5452 of any release of
Hazardous Materials on or from the Premises and to Railroad’s
Manager Environmental Leases at (785) 435-2386 for any
violation of Environmental Laws, or inspection or inquiry by
governmental authorities charges with enforcing Environmental Laws
with respect to Industry’s use of the Premises. Industry
shall use its best efforts to promptly respond to any release on or
from the Premises. Industry also shall give Railroad’s
Manager-Environmental Leases immediate notice of all measures
undertaken on behalf of Industry to investigate, remediate, respond
to or otherwise cure such release or violation and shall provide
Railroad’s Manager-Environmental Leases copies of all reports
and/or data regarding any investigations or remediations of the
Premises. In the event that Railroad has notice from Industry or
otherwise of a release or violation of Environmental Laws on the
Premises which occurred or may occur during the term of this Lease,
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
Premises, Railroad’s adjoining property or Railroad’s
right-of-way.
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(f) Industry
shall promptly report to Railroad in writing any conditions or
activities upon the Premises which create a risk of harm to
persons, property or the environment and shall take whatever action
is necessary to prevent injury to person 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 Lease. Industry
shall promptly respond to Railroad’s request for information
regarding said conditions or activities.
(g) Railroad
and their respective agents and representatives shall have a right
of entry and access to Premises: (i) at any time an actual or
suspected emergency exists and (ii) at any reasonable time,
upon prior written notice, and, at Industry’s election, with
a representative of Industry present, for the purposes of
(a) inspecting the documentation relating to Hazardous
Materials or environmental matters maintained by Industry or any
occupant of the Premises and (b) ascertaining whether Industry is
in compliance with its obligations under this
Section 13 .
(h) Prior to
the termination of this Lease, Railroad may, at Railroad’s
option, require Industry to conduct an environmental audit of the
Premises through an environmental consulting engineer acceptable to
Railroad, at Industry’s sole costs and expense, to determine
if any noncompliance or environmental damage to the Premises has
occurred during Industry’s occupancy thereof. The audit shall
be conducted to Railroad’s satisfaction and a copy of the
audit report shall promptly be provided to Railroad for its review.
Industry shall pay all expenses for any remedial action that may be
required as a result of said audit to correct noncompliance or
environmental damage, and all necessary work shall be performed by
Industry prior to the termination of this Lease.
14. Industry
may not make any alterations of the Premises or permanently affix
anything to the Premises or any buildings or other structures
adjacent to the Premises without Railroad’s prior written
consent.
15.
RAILROAD’S DUTIES AND WARRANTIES ARE LIMITED TO THOSE
EXPRESSLY STATE IN THIS LEASE AND SHALL NOT INCLUDE ANY IMPLIED
DUTIES OR IMPLIED WARRANTIES, NOW OR IN THE FUTURE. SO
REPRESENTATIONS OR WARRANTIES HAVE BEEN MADE BY RAILROAD OTHER THAN
THOSE CONTAINED IN THIS LEASE. INDUSTRY HEREBY WAIVES ANY AND ALL
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PREMISES WHICH
MAY EXIST BY OPERATION OF LAW OR IN EQUITY, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY, HABITABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
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16. RAILROAD
DOES NOT WARRANT ITS TITLE TO THE PREMISES NOR UNDERTAKE TO DEFEND
INDUSTRY IN THE PEACEABLE POSSESSION OR USE THEREOF, NO COVENANT OF
QUIET ENJOYMENT IS MADE.
17. (a) If
Industry creates or maintains any condition, including without
limitation, any environmental condition, on or about the Premises,
which in Railroad’s sole judgment interferes with or
endangers the operati
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