Exhibit 10.2


 


GRANT OF
EASEMENT AND RIGHT OF WAY


 


This Agreement made this 05 day of April,
2005, between the State of Kansas, by and through the Kansas Department of
Wildlife and Parks, hereinafter referred to as GRANTOR, and in favor of East
Kansas Agri-Energy, LLC, hereinafter refereed to as GRANTEES.


 


WITNESSETH: 
In consideration of ONE DOLLAR ($1.00) and other good and valuable
consideration paid by Grantee, the receipt and sufficiency of which is hereby
acknowledged, Grantor does, subject to its interest in the within described
real property, hereby grant to the Grantee, its successors, and assigns, a
perpetual alienable easement and right of way with the right to erect,
construct, install, lay and thereafter us, operate, inspect, repair, maintain, replace
and remove a railroad spur line for as long as said railroad spur is operated
and/or maintained, over and across said property owned by Grantor in Anderson
County, Kansas, described as follows:


 


Commencing at 1/2” rebar at the Southeast
Corner of the Southwest Quarter of Section 30, Township 20 South, Range 20
East of the Sixth Principal Meridian, City of Garnett, Anderson County, Kansas;
THENCE North 02 degrees 14 minutes 48 seconds West for a distance of 798.23
feet along the East line of said Southwest Quarter; THENCE North 70 degrees 59
minutes 38 seconds West for a distance of 51.33 feet to the East line of the
Rail Road Depot as described in Deed Book 16, Page 605 the POINT OF
BEGINNING; THENCE North 70 degrees 59 minutes 38 seconds West for a distance of
301.01 feet to the West line of said Rail Road Depot; THENCE North 12 degrees
22 minutes 55 seconds East for a distance of 60.40 feet along said West line;
THENCE South 70 degrees 59 minutes 38 seconds East for a distance of 305.09
feet to the east line of said Rail Road Depot; THENCE South 16 degrees 15
minutes 12 seconds West for a distance of 60.06 feet to the POINT OF
BEGINNING.  Together with and subject to
covenants, easements, and restrictions of record.  Said property contains18182.9 square feet
more or less in Anderson County, Kansas, as shown on survey by Taylor Design
Group, P.A., dated March, 2005.


 


1.                                       Said
grant is for the benefit of the Grantee, its successors an assigns, and
includes the right to ingress or egress over and across any state property
adjacent to the easement to cut, trim, and /or control any weeds, trees,
shrubbery, or brush that may endanger the use of the railroad spur or the
safety of persons utilizing the Rail Trail that crosses the easement, which
ingress and egress shall require the advance permission of the state park
manager, which permission shall not be unreasonably withheld.


 


2.                                       The
Grantor herein retains the right to use said lands for nay and all other
purposes, including as a recreational area.


 


	
   

  	
  [STATE OF KANSAS

  
	
   

  	
  SS:

  	
   

  
	
   

  	
  COUNTY OF ANDERSON

  
	
   

  	
  This instrument was filed for

  
	
   

  	
  record on the 7th day of April,

  
	
   

  	
  2005, at 3:40 o’clock p.m., and

  
	
   

  	
   duly recorded in Book 77 of MCL

  
	
   

  	
  at page 59.

  
	
   

  	
  /s/ Sandra J. Baugher

  	
   

  
	
   

  	
  Register of Deeds

  
	
   

  	
   

  	
   

  
	
   

  	
  Deputy

  
	
   

  	
  Fees, $24.00

  
	
   

  	
   

  
	
   

  	
  Entered in Transfer Record in my

  
	
   

  	
  Office this       day of           
  2005.

  
	
   

  	
   

  	
   

  
	
   

  	
  County Clerk

  
	
   

  	
  Stamped: Register of Deeds]

  
					



 


3.                                       Grantee
by acceptance of this easement hereby acknowledges and agrees that Grantee
shall notify Grantor by written notice fourteen days in advance of routine
maintenance to occur within the easement area.


 


4.                                       Grantee
shall maintain such easement in a state of good repair and efficiency so that
no unreasonable damages will result from its use of Grantor’s premises.


 





















 


5.                                       The
Grantee shall repair any damages due to construction, operation, maintenance,
or removal of all roads, trail, structures, fences, driveways, and vegetation.


 


6.                                       All
construction that effects a temporary change in grade or otherwise creates any
situation that could result in injury to persons or property shall be
barricaded properly to prohibit access to the construction area. Should the
Trail Crossing be closed for construction or maintenance, an alternative
crossing, approved by Grantor shall be made available by the Grantee working in
conjunction with Grantor or its authorized representatives.


 


7.                                       No
construction debris shall be stored on Grantor’s property without prior written
authorization, no trash or other construction debris shall be burned on-site,
and all rock unearthed during construction shall be removed from the premises.


 


8.                                       The
trail crossed by the Right of Way shall be leveled back and returned to its
original condition. At the location where the railroad spur crosses the Rail
Trail, the crossing shall be on grade level, and the crossing shall be
compliant with the requirements of the Americans With Disabilities Act. The
crossing shall consist of pre-cast concrete with a non-slip surface acceptable
to the Grantor. Grantee shall install and maintain audible and visible signs on
Grantor’s property to alert Rail Trail users of an oncoming train, which signs
shall be constructed in accordance with detailed plans under seal of an
engineer licensed to practice in Kansas, and shall be approved by Grantor
before commencement of the installation of signage. Grantor shall provide
electrical power to operate these signs.


 


9.                                       Grantee
agrees, as a part of the consideration for this easement, to re-route access to
the west side of the Rail Trail, and to provide parking spaces to replace those
spaces that will be lost due to the railroad spur easement passing across the
parking lot east of the Rail Trail. Grantee has prepared preliminary plans
showing the re-routing of an access road and the relocation of parking spaces
which preliminary plans are incorporated herein, provided, however, that prior
to the actual construction of these improvements, Grantee will submit detailed
plans for the construction of such improvements, together with the construction
of the rail spur, under seal of an engineer licensed to practice in Kansas,
which plans shall be subject to the approval of the Grantor prior to
commencement of construction, which approval shall not be unreasonably
withheld. In no case shall construction commence until Grantor has approved the
detailed construction plans so submitted. The plans shall reflect that Grantee
will place no above ground structures or improvements upon the easement except
for markers at property lines, fence lines, and road crossings. The plans shall
further provide for Grantee to construct a fence of materials approved by the
Grantor in an easterly and westerly direction along the north and south
boundaries established by the easement’s crossing State Park Property for the
purpose of impeding any person’s approach to the railroad track itself from the
adjoining State Park property.


 


10.                                 The
Grantee shall provide 60 days written notice to the Grantor prior to the
commencement of construction, installation, or substantial repairs within the
easement, which written notice shall include detailed plans for the
construction, installation, or repairs, to include an engineer’s seal of an
engineer licensed to practice in Kansas. In no case shall construction commence
until Grantor has approved the detailed construction plans so submitted.


 


11.                                 In
the event of a bona fide emergency,
the Grantee may make such repairs deemed immediately necessary by the Grantee
to alleviate or mitigate the emergency situation without Grantor’s prior written consent.  When any such emergency action shall be taken
by Grantee without Grantor’ s written consent, Grantee shall make an immediate
report to Grantor, explaining the nature of such emergency, together with a
request for written consent for further or permanent repair or maintenance
work. At all times Grantee shall take reasonable steps to protect Grantor’s
property, including improvements, fixtures, and trail surface within the
Easement Area and insure the safety of patrons using the trail.


 





















 


12.                                 If
the railroad spur is not operated or maintained by Grantee or its successors or
assigns for a period of one calendar year after its first use, the easement
interest in the lands covered by this Easement shall be deemed abandoned and
shall automatically revert to the Grantor or then owner of said lands and shall
merge with Grantor’s ownership. In the case of such abandonment of the
Easement, Grantee hereby agrees, if so requested, to execute an instrument in
recordable form evidencing such abandonment and reversion to Grantor.


 


13.                                 This
grant shall not be assigned, sold, transferred, leased, or otherwise conveyed
to a third party without first obtaining the written consent of Grantor, which
consent shall not be unreasonably withheld. In the event one of Grantee’s
lenders institutes foreclosure proceedings against Grantee, Grantor shall be
advised of such proceedings and its consent obtained before said lender conveys
Grantee’s assets to a third party.


 


14.                                 The
parties acknowledge that the subject property is property that has been rail
banked pursuant to 16 U.S.C. 1247(d), that Grantor does not have fee simple
title to the property; that Grantor is, by this Agreement, authorizing the use
of the property by Grantee for so long as Grantor remains in possession and
control of the property; that rail banked property is subject to being returned
to rail service; and that in the event this property is returned to rail
service, Grantee will be required to deal with the carrier that reestablishes
rail service in order to continue making use of this easement.


 


15.                                 The
easement has been reviewed and cleared by the Kansas State Historic
Preservation Officer, however, should any historical artifacts be uncovered
during the construction phase, work will immediately cease and notification
will be provided to the Grantor of such findings. Work may not resume until
further clearance is afforded from the Kansas Historical Preservation Officer.


 


16.                                 If
there is a substantial change in the use of the trail or of the railroad spur
that impacts the safety of persons using the trail, sixty (60) days written
notice of such change shall be provided to the other party, together with a
proposal for modifications to this Easement to address the changed usage and
safety issues created thereby, and the parties will thereafter negotiate in
good faith for the purpose of modifying the easement to address the issues so
raised. Any modifications must be mutually approved in writing, which approval
shall not be unreasonably withheld by either party.


 


17.                                 Grantor
shall provide written notice to Grantee if it deems the Grantee to be in
non-compliance with any of the terms of this Agreement. Grantee shall have 30
days after receipt of this notice to commence correcting the default, which
work shall continue without interruption until it is completed. If Grantee
fails to comply to the stated provision after thirty days, Grantee shall be
deemed to have abandoned said easement interest. In the case of such
abandonment of the Easement, Grantee, its successors, assigns, lessees,
affiliates, or agents, hereby agree, if so requested, to execute an instrument
in recordable form evidencing such abandonment and reversion to Grantor.


 


18.                                 Grantee
agrees to comply with all State and Federal law relating to the exercise of
rights herein granted.


 


19.                                 Equal
opportunity to participate in and benefit from programs described herein is
available to all individuals without regard to their race, color, religion,
national origin or ancestry, sex, age or disability. Complaints of discrimination
should be sent to the Office of the Secretary, Kansas Department of Wildlife &
Parks, 1020 S. Kansas, Suite 200, Topeka, Kansas 66612.


 


20.                                 The
provisions found in Contractual Provisions Attachment (for DA-146a), identified
as Attachment 1, are hereby incorporated in this Agreement. In the event any of
the provisions of this Permit are deemed to be invalid or unenforceable, the
same shall be deemed severable from the remainder of the Permit. If such
provision shall be deemed invalid due to its scope and breadth, such provision
shall be deemed valid to the


 





















 


extent of the scope and breadth permitted by
law.


 


Grantee agrees to indemnify and hold Grantor
harmless from and against all third party claims which may result from the
construction, operation and maintenance of said railroad spur by Grantee, its
agents, assigns or subcontractors, including but not limited to, injuries or
deaths of persons, animals, court costs and attorneys’ fees.


 


21.


Address for written notice:


 


Grantor:                                                     Regional
Park Supervisor


Kansas Department of Wildlife and Parks


300 SW Wanamaker


Topeka, Kansas 66606


 


Grantee:                                                    East
KansasAgri-Energy, LLC


William R. Pracht,


Chairperson 121 1/2 East


Fourth Avenue P.G. Box 225


Garnett, Kansas 66032


 


It is agreed that the foregoing is the entire
agreement between the parties hereto, and that this written agreement is
complete in all its terms and provisions. The term of this agreement shall
constitute covenants running with the land and shall be binding upon and inure
to the benefit of the parties hereto, their successors, assigns, lessees,
affiliates or agents. This easement and right-of-way shall be effective upon
acceptance by the Grantee (as evidenced by the signatures below) and the filing
of the easement in the official records of the Anderson County Register.of
Deeds.


 


IN WITNESS WHEREOF, said Grantor has executed
this instrument this
           day of April,
2005.


 


	
   

  	
  STATE OF KANSAS, by and through,

  
	
   

  	
  KANSAS DEPARTMENT OF WILDLIFE AND PARKS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ J Michael Haden

  	
   

  
	
   

  	
   

  	
  J. Michael Hayden, Secretary

  
	
  STATE OF
  KANSAS        )

  	
   

  	
   

  
	
  )SS:

  	
   

  	
   

  
	
  COUNTY OF SHAWNEE)

  	
   

  	
   

  



 


BE IT REMEMBERED, that on this 5 day of
April, 2005, before me, the undersigned, a Notary Public, in and for the county
and state aforesaid, came J. Michael Hayden, who in his capacity as Secretary
of the Kansas Department of Wildlife and Parks is personally known to be the
same person who executed the within instrument of writing in such capacity and
such person duly acknowledged the execution on behalf of the State of Kansas,
by and through the Kansas Department of Wildlife and Parks.


IN WITNESS WHEREOF, I have hereunto set my
hand and affixed my notarial seal the day and year last above written.


 


	
  Term Expires:

  	
   

  
	
   

  	
   

  
	
  [Notary Stamp: Donna L. Eberly

  	
  /s/ Donna L. Eberly

  	
   

  
	
  Notary Public, State of Kansas, My Appt.
  Exp.

  	
  04-05-05

  	
  ]

  	
   Notary Public

  
					



 





















 


ACCEPTANCE OF RIGHT OF WAY
EASEMENT


 


The East Kansas Agri-Energy, LLC, Board of
Directors authorizes the below signatory to accept on behalf of such limited
liability company the foregoing easement and to bind such limited liability
company to the provisions and covenants therein.  East Kansas Agri-Energy, LLC, hereby accepts
the foregoing easement and agrees to be bound by the provisions and covenants
therein.


 


	
   

  	
  EAST KANSAS AGRI-ENERGY, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ William R. Pracht

  	
   

  
	
   

  	
             William
  R. Prafcht, Chairperson