Exhibit 10.4


 


ITC Ind Dev-New Trk 05/01/01


Form Approved, AVP-Law


 


INDUSTRY TRACK CONTRACT


ARTICLES OF AGREEMENT


 


THIS AGREEMENT is made and entered into as of
the 9th day of April, 2004, by and between UNION
PACIFIC RAILROAD COMPANY, a Delaware corporation having an address of 1416
Dodge Street, Omaha, Nebraska 68179 (hereinafter the “Railroad), and GOLDEN
GRAIN ENERGY, L.L.C., an Iowa limited liability corporation, to be addressed at
Post Office Box 435, New Hampton, Iowa 50659 (hereinafter the “Industry”).


 


RECITALS:


 


The Industry desires the
construction, maintenance and operation of a 2,926-foot spur Track A,
2,744-foot spur Track B, 1,454-foot spur Track C and 1,584-foot double-ended
Track D (hereinafter collectively “Track”) at or near Milepost 189.5, Mason
City Subdivision, in Mason City, Cerro Gordo County, Iowa, shown by dashed and
dashed cross-hatched lines on the attached Drawing No. IA-0067-PH-01 dated
October 28, 2003, marked Exhibit A,
hereto attached and hereby made a part hereof.


 


AGREEMENT:


 


NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND
BETWEEN THE PARTIES HERETO AS FOLLOWS:


 


Article 1.                                                TRACK IDENTIFICATION MARKERS.


 


For the purpose of this Agreement, the
following segments of Track A shall be identified as follows:


 


	
  Engineering Station 0+00 -

  	
   

  	
  the initial switch connection
  or sometimes referred to as the point of switch.

  
	
   

  	
   

  	
   

  
	
  Engineering Station 1+78 -

  	
   

  	
  the initial 13-foot clearance
  point of the track.  It is the point
  on the track where a rail car either being moved or stored on the track will
  not interfere with the movement of other rail cars on adjacent main, branch
  or lead trackage owned by the Railroad.

  
	
   

  	
   

  	
   

  
	
  Engineering Station 5+88 -

  	
   

  	
  the point on the track that
  intersect the property line or right-of-way boundary line of the Railroad.

  
	
   

  	
   

  	
   

  
	
  Engineering Station 29+26 -

  	
   

  	
  the end of Track A.

  



 


1

















 


 


Article 2.                                                INDUSTRY-SUPPLIED TURNOUT.


 


The Industry, at its expense, will furnish
and assemble one new No. 11 136-lb. right-hand standard turnout obtained from a
Railroad-approved vendor, for installation by Railroad forces.


 


Article 3.                                                CONSTRUCTION COST; PAYMENT.


 


A.                                   Upon the execution of this Agreement, the
Industry shall pay the Railroad the sum of NINETY-ONE THOUSAND THREE HUNDRED
SIXTY-EIGHT DOLLARS ($91,368.00), which is the firm cost to the Industry for
construction of that portion of the Track to be constructed by the Railroad, as
described in Article 4.


 


B.                                     The Railroad reserves the right to change
construction costs and design of the Track if construction is not started by
the Railroad within six (6) months of the date of this Agreement due to delays
imposed by the Industry.


 


Article 4.                                                PORTIONS OF TRACK TO BE CONSTRUCTED BY
RAILROAD.


 


The Railroad, in consideration of payment by
Industry of the amount stated in Article 3 of this Agreement, will
construct 165 track feet of Track A including one No. 11 136-lb. turnout (using
turnout materials supplies by Industry) and install a switch circuit
controller.


 


Article 5.                                                PORTIONS OF TRACK TO BE CONSTRUCTED BY
INDUSTRY.


 


A.                                   The Industry, at its own expense and subject
to the prior approval of the Railroad, will perform all grading and install all
necessary drainage facilities required in connection with the construction of
the Track to the standards and satisfaction of the Railroad, and arrange to
modify any overhead and/or underground utilities to meet Railroad
specifications.


 


B.                                     The Industry, at its own expense, will also
perform the following work:


 


1.                                       Construct the remaining 2,761 track feet of
Track A and install a double-point split switch (DPSS) derail at or near
Engineering Station 3+00 (actual location to be determined by Railroad
representative), and an earthen bumper at the end of Track A.


 


2.                                       Construct all of Track B including one No. 9
turnout and install an earthen bumper at the end of Track B.


 


3.                                       Construct all of Track C including one No. 9
turnout and install a concrete approach beginning at Engineering Station 4+20,
a loadout device at Engineering Station 5+50 and an earthen bumper at the end
of Track C.


 


4.                                       Construct all of Track D including two no. 9
turnouts.


 


2

















 


Article 6.                                                RIGHT-OF-WAY AND PRIVILEGE.


 


The Industry shall procure any needed
right-of-way, public authority or permission for construction, maintenance and
operation of the Track outside the limits of the Railroad’s right-of-way.  The Industry shall pay any fees or costs
imposed by any public authority or person for the privilege of constructing,
maintaining and operating the Track.


 


Article 7.                                                GRANT OF RIGHT; USE AND OPERATION OF THE
TRACK.


 


A.                                   During the term hereof and subject to the
terms and conditions set forth in this Agreement, Railroad hereby grants to
Industry the right, at Industry’s sole cost and responsibility, to construct,
own, keep, maintain, repair and use Industry’s private section of Track
where located on and along Railroad’s right-of-way.


 


B.                                     The Railroad shall operate the Track subject
to any applicable tariffs or rail transportation contracts and the terms of
this Agreement, but the Railroad shall not be obligated to operate or maintain
the Track (and the Industry shall not have any claim against the Railroad) if
the Railroad is prevented or hindered from doing so by the Industry’s breach or
by acts of God, public authority, strikes, riots, labor disputes, or other
cause beyond its control.  The Railroad
shall have the right to use the Track when not to the detriment of the
Industry.


 


C.                                     The Industry shall bear the cost of any
modifications to the Railroad’s tracks, structures and communication
facilities, other than track changes connected with the initial switch
connection, required by the construction, reconstruction or operation of the
Track.


 


D.                                    The use and operation of the Track shall
also be in accordance with the terms and conditions set forth in Exhibit B, hereto attached and hereby made
a part hereof.


 


Article 8.                                                OWNERSHIP OF THE TRACK.


 


A.                                   The Railroad shall own the portion of Track
A from the point of switch to the 13-foot clearance point (hereinafter
“Railroad-owned Track”).


 


B.                                     The Industry shall own the portion of Track
A from the 13-foot clearance point to the end of the track and all of Tracks B,
C and D (hereinafter “Industry-owned Track”).


 


Article 9.                                                MAINTENANCE OF THE TRACK STRUCTURE (RAIL, TIES,
BALLAST, OTHER TRACK MATERIAL).


 


A.                                   The Railroad, at its expense, shall maintain
the track structure for the portion of Railroad-owned Track.


 


B.                                     The Industry, at its expense, shall maintain
the track structure for the portion of Industry-owned Track.


 


Article 10.                                          MAINTENANCE OF RIGHT-OF-WAY AND TRACK
APPURTENANCES.


 


A.                                   The Railroad, at its expense, shall maintain
the right-of-way and track appurtenances for the portion of Railroad-owned
Track.


 


3

















 


B.                                     The Industry, at its expense, shall perform
the following maintenance of the right-of-way and track appurtenances for the
portion of Industry-owned Track:


 


1.                                       Remove snow, ice, sand and other substances
and maintain drainage and grading as needed to permit safe operation over the
Track.


 


2.                                       Maintain all appurtenance to the Track
(other than an automatic signal system), including without limitation, gates,
fences, bridges, undertrack unloading pits, loading or unloading devices and
warning signs above, below or beside the Track.


 


Article 11.                                          INDUSTRY TO GIVE NOTICE; FLAGGING.


 


Prior to entering Railroad’s right-of-way or
other property for the purpose of performing any construction, maintenance,
repair or reconstruction of the Track as set forth in this Agreement, and/or
constructing additional track segments connecting to the Track, the Industry
and/or its contractors are required to notify the Railroad’s local
Director-Track Maintenance, in writing, at least ten (10) working days in
advance of such work, so that the Railroad may, in the event it deems
necessary, arrange for flagging or other protection as required.  Any such flagging or other protection
furnished by Railroad will be at Industry’s sole cost and expense.


 


Article 12.              CONSTRUCTION, MAINTENANCE AND REPAIRS BY
INDUSTRY TO CONFORM TO RAILROAD STANDARDS.


 


A.                                   Track construction, maintenance and repair
work performed by the Industry shall conform to the Railroad’s standards.  If, in the judgment of the Railroad, any
portion of the Track is non-conforming and/or unsafe for railroad operations,
the Railroad shall not be obligated to operate over the Track.


 


B.                                     The Railroad, at the Industry’s expense,
shall have the right, but not be required, to make repairs on the
Industry-owned Track when requested by the Industry or when necessary to
operate the Track safely.


 


Article 13.                                          NON-DISCLOSURE; CONFIDENTIALITY.


 


Except to the extent that disclosure of
information contained in this Agreement is required by law, the contents of
this Agreement shall not be disclosed or released by any party without the
written consent of all other parties to this Agreement.


 


Article 14.                                          TERM.


 


This Agreement shall take effect as of the
date of this Agreement and shall continue in full force and effect until
terminated as herein provided.


 


4

















 


Article 15.                                          CONSENT OF THE RAILROAD TO CERTAIN
FACILITIES OR OPERATIONS.


 


The Railroad hereby consents to:


 


A.                                   the construction, maintenance and operation
by the Industry of a load-out facility at Engineering Station 5+50 of Track C
as shown on Exhibit A; and


 


B.                                     the performance by the Industry of
intraplant switching over the portion of Track A from the derail at Engineering
Station 3+00 to the end of the track and over all of Tracks B, C and D;


 


subject to the terms, provisions and
conditions set forth in this Agreement and to any prior regulatory approval
that may be needed.


 


Article 16.                                          INSURANCE.


 


A.                                   The Industry, at its expense, shall obtain
the insurance described in Exhibit C,
hereto attached and hereby made a part hereof, and provide a certificate(s) of
insurance certifying to the effectiveness of such insurance to the address
shown in Paragraph C below.


 


B.                                     If the Industry uses the Track to store
and/or handle hazardous materials, the Industry, in addition to the other
endorsements to be obtained by Industry as provided in Exhibit C, must also ensure that the
Commercial General Liability insurance policy contains a Designated Premises
Pollution Coverage (CG00-39) endorsement. 
Evidence of the endorsement must also be indicated on the certificate of
insurance provided to the Railroad.


 


C.                                     All insurance certificates and
correspondence shall be addressed and sent to:


 


Union Pacific Railroad Company


Real Estate Department


1416 Dodge Street


Omaha, NE 68179


 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed in duplicate as of the date first herein
written.


 


	
   

  	
  UNION PACIFIC RAILROAD COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Steven J. McLaws

  	
   

  
	
   

  	
   

  	
  General Director – Industrial
  Development

  
	
   

  	
   

  
	
   

  	
   

  
	
  Witness:

  	
  GOLDEN GRAIN ENERGY, L.L.C.

  
	
   

  	
   

  
	
  /s/ Stanley B. Laures

  	
   

  	
  By

  	
  /s/ Walter Wendland

  	
   

  
	
   

  	
  Printed Name

  	
  Walter Wendland

  	
   

  
	
   

  	
  Title

  	
  President

  	
   

  
								



 


5

















 


	
   

  	
   

  	
  EXHIBIT B

  
	
   

  	
   

  	
  Revised
  March 24, 2004

  



 


Section 1.                                            SAFETY.


 


(a)                                  Clearances/Impairments. 
The Industry shall not permit or maintain any building, platform, fence,
gate, vehicle, or other structure, obstruction or material of any kind, closer
to the Track than the standard clearances of the Railroad without the prior
written consent of the Railroad.  The
standard clearances of the Railroad are (i) horizontally, nine (9) feet
from the centerline of the Track, and (ii) vertically, twenty-three (23)
feet above the top of the rail of the Track. 
For any portion of the track that is curved, the standard horizontal
clearance shall be increased one and one-half inches for each degree of
curvature.  All doors, windows and gates
shall be of the sliding type or open away from the Track if opening them toward
the Track would impair clearances.  Any
moveable appliance, including, but not limited to, dock plates and loading or
unloading spouts or equipment, that impairs the standard clearances only when
in use, shall be securely stored or fastened by the Industry when not in use so
as to not impair such clearances.  If
greater clearances are required by the National Electrical Safety Code or by
statute, regulation or other competent public authority, the Industry shall
comply therewith and shall obtain any necessary public authority and Railroad
consent to impair clearances before creating an impairment.  Any structure, material or other obstruction
(whether in use or not) which is closer to the Track than the Railroad’s
standard clearances or applicable public authority, whichever distance is
greater, shall be considered an impairment, whether or not consented to or
permitted by the Railroad or public authority.


 


(b)                                 Facilities.  The Industry shall not
construct, locate, maintain or permit the construction or erection of any pits,
loadout facilities, buildings, private crossings, beams, pipes, wires, or other
obstructions or installations of any kind or character (hereinafter
“Facilities”) over or under the Track without the prior written consent of the
Railroad.


 


(c)                                  Walkways.  The Industry, at its expense,
shall provide and maintain a clear and safe pathway for Railroad employees
along both sides of the Tack beyond the clearance point.  If walkways are required by statue or
regulation, the Industry, at its expense, shall ensure that walkways are built
and maintained to conform with such statute or regulation.


 


(d)                                 Industry to Train and Oversee Employees. 
The Industry shall have the non-delegable duty and responsibility to
train and oversee its employees and agents as to proper and safe working
practices while performing any work in connection with this Agreement, or any
work associated with the Railroad serving the Industry over the Track.


 


(e)                                  Intraplant Switching. 
The Industry shall not perform, permit or cause intraplant switching without
the prior written consent of the Railroad. 
Intraplant switching means the movement of rail cars on the Track by the
Industry by any method and includes the Industry’s capacity to move rail cars,
whether before, during or after any such movement.


 


(f)                                    Standards.  The Industry shall comply with
all applicable ordinances, regulations, statutes, rules, decision and orders
including, but not limited to, safety, zoning, air and water quality, noise,
hazardous substances and hazardous wastes (hereinafter “Standards”) issued by
any federal, state or local governmental body or agency (hereinafter
“Authority”).  If the Industry is not in
full compliance with any Standards issued by any authorized Authority, the
Railroad, after notifying the Industry of its noncompliance and the Industry’s
failure within twenty days of such notice to correct such noncompliance, may
elect to take whatever action is necessary to bring the Track and any Railroad
property into compliance with such Standards; PROVIDED, HOWEVER, that if
Industry’s failure to comply with Standards interferers with, obstructs or
endangers Railroad mainline or yard operations in any way, Railroad may
initiate compliance action immediately. 
The Industry shall reimburse the Railroad for all costs (including, but
not limited to, consulting, engineering, clean-up, disposal, legal costs and
attorneys’ fees, fines and penalties) incurred by the Railroad in complying
with, abating a violation of, or defending any claim of violation of such
Standards.  A waiver by the Railroad of
the breach by the Industry of any covenant or condition of this Agreement shall
not impair the right of the Railroad to avail itself of any remedy for any
subsequent breach thereof.


 

















 


(g)                                 Railcars Containing Hazardous Materials.  If
the Industry uses the Track for the purpose of shipping, receiving or sorting
railcars containing hazardous materials, as defined by the Department of
Transportation (the “DOT”), the Industry will comply with and abide by all DOT
regulations as set out in 49 Code of Federal Regulations, Parts 100-199,
inclusive, as amended from time to time, and provisions contained in applicable
Circular’s of the Bureau of Explosives, Association of American Railroads,
including any and all amendments and supplements thereto.  The term “Standards” defined in
Section 1(f) shall include (but is not limited to) regulations referenced
in this subsection (g).


 


(h)                                 Telecommunications and Fiber Optic Cable
Systems.  Telecommunications and Fiber optic cable
systems may be buried on the Railroad’s property.  Industry shall telephone the Railroad during normal business
hours (7:00 a.m. to 9:00 p.m., Central Time, Monday through Friday, except
holidays) at 1-800-336-9193 (also a 24-hour, 7-day number for emergency calls)
to determine if telecommunications or fiber optic cable are buried anywhere on
the Railroad’s premises to be used by the Industry.  If it is, Industry will telephone the communications company(ies)
involved, arrange for a cable locator, and make arrangements for relocation or
other protection of the cable and will commence no work on Railroad’s property
until all such protection or relocation has been accomplished.


 


(i)                                     Fire Precautions. 
Industry shall not permit, place, pile, store, or stack any flammable
material within ten (10) feet of centerline of Track.  Industry shall remove or otherwise control vegetation adjacent to
the Track so that it does not constitute a fire hazard.  Industry shall ensure that suitable
firefighting equipment is available and in working order.


 


Section 2.                                            LIABILITY.


 


(a)                                  For purposes of this Section, the following
definitions shall apply:


 


(1)                                  “Railroad”: the Railroad and its officers,
agents and employees.


 


(2)                                  “Industry”: the Industry and its officers,
agents and employees.


 


(3)                                  “Party”: the Railroad or the Industry.


 


(4)                                  “Third Person”: any individual, corporation
or entity other than the Railroad or the Industry.


 


(5)                                  “Loss” means loss of or damage to the
property of any Third Person or Party and/or injury to or death of any Third
Person or Party.  “Loss” shall also
include, without limitation, the following associated expenses incurred by a
Party: costs, expenses, the cost of defending litigation, attorneys’ fees,
expert witness fees, court costs, the amounts paid in settlement, the amount of
the judgment, and pre-judgment and post-judgment interest and expenses arising
from analysis and cleanup of any incident involving the release of hazardous
substances or hazardous wastes.


 


(b)                                 Except as otherwise specifically provided in
this Agreement, all Loss related to the construction, operation, maintenance,
use, presence or removal of the Track shall be allocated as follows:


 


(1)                                  The Railroad shall indemnify Industry from
and against Loss arising from or growing out of the negligent acts or omissions
of the Railroad.


 


(2)                                  The Industry shall indemnify Railroad from
and against Loss arising from or growing out of the negligent acts or omissions
of the Industry or arising from:


 


(i) any
impairment of the Track by Industry as described in Section 1(a);


 


(ii) the
Industry’s failure to construct or adequately maintain pathways or walkways as
required by Section 1(c);


 


1

















 


(iii) intraplant switching as defined in
Section 1(e);


 


(iv) the Industry’s failure to comply with
Standards, as required by Section 1(f); or


 


(v) any
explosion or leakage or evaporation of hazardous substances or hazardous wastes
shipped, received or stored by Industry resulting from Industry’s failure to
comply with DOT and other applicable regulations as set forth in Sections 1(f)
and 1(g) of Exhibit B.


 


(3)                                  Subsection 2(b)(2), subparagraphs (i)
through (v), apply regardless of whether the Railroad had notice of, consented
to, or permitted the aforesaid impairments, failures, non-compliance with
Standards, wastes or substances, and whether or not the Railroad or a Third
Person contributes to cause the Loss.


 


(4)                                  Except as otherwise more specifically
provided in this Agreement, Railroad and Industry shall pay equal parts of the
Loss that arises out of the joint or concurring negligence of the Railroad and
the Industry, whether or not the acts or omissions of a Third Person contribute
to cause the Loss; PROVIDED, however, that nothing in this Agreement shall be
construed as impairing the right of either party to seek contribution or
indemnification from a Third Person.


 


(5)                                  Industry expressly and specifically assumes
potential liability under this subsection (b) for claims or actions
brought by Industry’s own employees.


 


(6)                                  No court or jury findings in any employee’s
suit pursuant to any worker’s compensation act or the Federal Employer’s
Liability Act against a party to this Agreement may be relied upon or used by
either party in any attempt to assert liability against the other party.


 


Section 3.                                            REARRANGEMENT OF TRACK; ADDITIONAL TRACKAGE.


 


(a)                                  The Railroad may rearrange or reconstruct
the Track or modify its elevation in order to develop or change nearby Railroad
property or tracks, provided that the Industry shall continue to have similar
trackage without additional cost to the Industry.  If, however, the change in the Track, or its appurtenances, is
required by or as a result of any law, ordinances, regulation, or other
contingency over which the Railroad has no control, the Industry shall bear the
cost of the change.


 


(b)                                 All references in this Agreement to Track
shall apply to the Track as constructed, even if it differs or varies from its
depiction on Exhibit A.  References in
this Agreement to Track shall apply to the rearrangements, reconstructions,
extensions or additions to the Track.


 


Section 4.                                            PAYMENT OF BILLS; ASSIGNABLE COSTS.


 


(a)                                  Bills for expenses properly chargeable to
the Industry pursuant to this Agreement shall be paid by the Industry within
thirty days after presentation by the Railroad except as otherwise
provided.  Bills not paid within thirty
days shall be subject to interest at the then current rate charged by the
Railroad.


 


(b)                                 “Costs” or “expense” for the purpose of this
Agreement shall be all assignable costs and expenses including all current
Railroad cost additives.  Material shall
be charges at its current value when and where used. Assignable costs are any
costs incurred by the Railroad that are directly or indirectly attributable to
the construction, maintenance or operation of the Track that the Railroad has
not specifically agreed to pay under the terms of this Agreement.


 


2

















 


Section 5.                                            GOVERNMENTAL RESTRICTIONS.


 


This Agreement is made subject to all
applicable laws, rules and regulations of the United States Government or any
state, municipal, or local governmental authority now or hereafter in effect.


 


Section 6.                                            TERMINATION.


 


(a)                                  Industry may terminate this Agreement upon
thirty (30) days’ written notice to Railroad.


 


(b)                                 Railroad may terminate this Agreement by
sending thirty (30) days’ written notice to Industry’s last known address:


 


(1)                                  if Industry does not use the Track in an
active and substantial way for a continuous period of six (6) months; PROVIDED,
HOWEVER, that Industry has the option after receipt of such notice to pay an
annual fee towards the cost of maintaining the switch connection up to the
clearance point.  The Railroad’s notice
of termination for lack of use shall state the current amount of the annual fee
and how frequently it may be adjusted. 
Industry may accept the option by payment of the annual fee before the
termination becomes effective on the thirtieth day after notice was mailed.


 


(2)                                  if Industry is in default in the performance
of any covenant or promise in this Agreement and continues in default for a
period of thirty (30) days after receiving such notice of default from the
Railroad; PROVIDED, HOWEVER, that if a default by the Industry is deemed by the
Railroad to be unusually dangerous or hazardous, the Railroad may immediately
suspend its performance under this Agreement during the thirty day default cure
period.  Such termination shall be
effective on the thirty-first day after the Railroad sent notice of default if
default still exists and no further notice of termination shall be required.


 


(3)                                  upon thirty (30) days’ written notice if
continued operation of Track (including but not limited to the switch
connection itself) becomes impracticable due to abandonment or embargo of rail
lines, or if the continued presence of the Track would interfere with Railroad
operations (including but not limited to, line changes, construction of new
lies, or railroad installation of facilities). 
In the event Railroad terminates this Agreement pursuant to this
subparagraph, Railroad shall attempt to provide Industry a substitute switch
connection if such a switch connection would be reasonably practicable, could
be made safely, and would furnish sufficient business to justify the cost of
construction and maintenance.


 


(c)                                  Termination of this Agreement for any reason
shall not affect any of the rights or obligations that the parties hereto may
have accrued, or liabilities, accrued or otherwise, which may have arisen prior
thereto.


 


Section 7.                                            SURRENDER UPON TERMINATION.


 


Upon termination of this Agreement howsoever,
the Industry shall vacate and surrender the quiet and peaceable possession of
any right-of-way or other property owned by the Railroad upon which the Track
is located.  The Railroad shall have the
right to remove the portion of the Track it owns.  Not later than the last day of the term of this Agreement, the
Industry, at its sole cost and expense, shall (a) remove from the Railroad’s
right-of-way or other property all (i) portions of the Track owned by the
Industry, (ii) obstructions, (iii) contaminations caused by or arising from the
use of the Track for purposes of the Industry, Facilities (as defined in
Section 1(b)) and other property not belonging to the Railroad or a third
party, located thereon and (b) restore the Railroad’s right-of-way to as good a
condition as the same was in before the date of this Agreement.  If the Industry fails to perform such
removal and restoration, or if the work performed by the Industry is not
satisfactory to the Railroad, the Railroad may perform the


 


3

















 


work at Industry’s expense.  Any portion of the Track owned by Industry
and not removed as provide herein may, at Railroad’s election, be deemed
abandoned and Railroad, at Industry’s sole cost and expense, may remove such
portion(s) of the Track from Railroad’s property and depose of same and restore
Railroad’s property.  If Railroad
performs such track removal and/or disposal, the Industry agrees to reimburse
the Railroad, within thirty (30) days of its receipt of billing from the
Railroad, for all costs and expenses incurred by Railroad (less any resulting
salvage value) in connection therewith.


 


Section 8.                                            NOTICES.


 


(a)                                  Any notice, consent or approval that either
party hereto desires or is required to give to the other party under this
Agreement shall be in writing.  The
notice, consent or approval shall be deemed to have been given to the Industry
by serving the Industry personally or by mailing the same, postage prepaid, to
the Industry at the last address known to the Railroad.  Notice may be given to the Railroad by
mailing the same, postage prepaid to the office of the Assistant Vice
President-Real Estate, Real Estate Department, 1416 Dodge Street, Omaha,
Nebraska 68179.


 


(b)                                 Notices involving a notice of default or
termination shall be by certified mail, return receipt requested, and such
notice shall be deemed given on the date deposited with the United States
Postal Service.


 


Section 9.                                            ASSIGNMENT; USE BY THIRD PARTIES.


 


The Industry shall not assign this Agreement
or permit use of the Track by anyone other than the Industry without the prior
written consent of the Railroad.  The
Industry shall notify the Railroad in writing of any assignment to an affiliate
prior to the effective date of the assignment. 
For any departure from the terms of this Section, the Railroad may
termination this Agreement.  The
Railroad shall not unreasonably withhold its consent to an assignment of this
Agreement.


 


Section 10.                                      SUCCESSORS AND ASSIGNS.


 


Subject to the provisions of Section 9,
the rights and obligations contained in this Agreement shall pass to and be
binding upon the heirs, executors, administrators, successors and assigns of
the parties to this Agreement.


 


4

















 


	
   

  	
   

  	
  EXHIBIT C

  
	
   

  	
   

  	
  Revised
  March 24, 2004

  



 


UNION PACIFIC
RAILROAD


CONTRACT
INSURANCE REQUIREMENTS


 


Industrial
Track


 


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 single limit of at least $3,000,000
each occurrence or claim and an aggregate limit of at least $3,000,000.
Coverage must be purchased on a post 1998 ISO or equivalent form, including,
but not limited to, coverage for the following:


 


•                                          Bodily injury including death and personal
injury.


 


•                                          Property damage.


 


•                                          Fire legal liability (not less than the
replacement value of the portion of the premises occupied).


 


•                                          Products and completed operations,


 


The policy shall also contain the following
endorsements which shall be indicated on the
certificate of insurance:


 


•                                          The employee and Workers’ Compensation-related
exclusions in the above policy apply only to Industry’s employees.


 


•                                          The exclusions for railroads and explosion,
collapse and underground hazard shall be removed.


 


•                                          Wavier of subrogation.


 


B.                                    Business Automobile
Coverage
insurance.  This insurance shall contain
a combined single limit of at least $5,000,000 per occurrence or claim,
including, but not limited to, coverage for the following:


 


•                                          Bodily injury and property damage.


•                                          Any and all motor vehicles including owned,
hired and non-owned.


 


The policy shall also contain the following
endorsements which shall be indicated on the
certificate of insurance:


 


•                                          The employee and Workers’
compensation-related exclusions in the above policy apply only to Industry’s
employees.


 


•                                          Motor Carrier Act Endorsement – Hazardous
Materials Cleanup (MCS-90), if required by law.


 


1

















 


In the event the Industry does not have
liability for any “auto” as defined in the current ISO Commercial General
Liability form, the above Business Auto Insurance is not required.


 


C.                                    Workers’ Compensation and
Employers Liability
insurance including but not limited to:


 


•                                          Industry’s statutory liability under the
Workers’ Compensation laws of the state(s) affected by this Agreement.


 


•                                          Employers’ Liability (Part B) with limits of
at least $500,000 each accident, $500,000 disease policy limit, $500,000 each
employee.


 


If Workers’ Compensation insurance will not
cover the liability of Industry in states that require participation in state
Workers’ Compensation fund, Industry shall comply with the laws of such
states.  If Industry is self-insured,
evidence of state approval must be provided along with evidence of excess
Workers’ Compensation coverage. 
Coverage shall include liability arising out of U.S. Longshoremen’s and
Harbor Workers’ Act, the Jones Act, and the Outer Continental Shelf Land Act,
if applicable.  The policy shall also
contain endorsement which shall be indicated
on the certificate of insurance:


 


•                                          Alternate Employer Endorsement


 


D.                                    Umbrella or Excess Policies.  In
the event Industry utilizes umbrella or excess policies, these policies shall
“follow form” and afford not less coverage than the primary policy.


 


Other Requirements


 


E.                                      Punitive damage exclusion must be deleted,
which deletion shall be indicated on the certificate of insurance.


 


F.                                      Industry agrees to waive its right of
recovery, and its insurers, through policy endorsement, agree to waive their
right of subrogation against Railroad. 
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 and control.  Industry’s insurance shall be primary with
respect to any insurance carried by Railroad. 
All waivers of subrogation shall be
indicated on the certificate of insurance.


 


G.                                    All policy(ies) required above (excluding
Workers’ Compensation) shall provide severability of interests and shall name
Railroad as an additional insured.  Severability of interest and naming Railroad as
additional insured shall be indicated on the certificate of insurance.


 


H.                                    Industry shall furnish to Railroad original
certificate(s) of insurance evidencing the required coverage, endorsements, and
amendments, and reference the contract audit/folder number if available.  The certificate(s) shall contain a provision
that obligates the insurance company(ies) issuing such policy(ies) to notify
Railroad in writing of any cancellation or material alteration.  Upon
request from Railroad, a certified duplicate original of any required policy
shall be furnished.


 


I.                                         Any insurance policy shall be written by a
reputable insurance company acceptable to Railroad or with a current Best’s
Insurance Guide Rating of A- and Class VII or better, and authorized to do
business in the state in which the Track is located.


 


J.                                      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 and acknowledges that Industry’s insurance
coverage will be primary.


 


2

















 


K.                                    If Industry fails to procure and maintain
insurance as required, Railroad may elect to do so at the cost of Industry plus
a 25% administration fee.


 


L.                                     The fact that insurance is obtained by the
Industry or Railroad on behalf of 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.


 


3

















 


GOLDEN GRAIN
ENERGEY, LLC


ETHANOL PLANT


MASON CITY, IA


FILE #0343214C


 


* If your fees on this project are for legal
services, please complete and sign this form and the attached W-9 and return
both to Title Professionals.


 


*If your company IS NOT a corporation,
please complete and sign this form and the attached W-9 and return both to
Title Professionals.


 


*If your company IS a corporation and
your fees are NOT for legal services, please complete only this form and
return it to titled Professionals.


 


	
  FULL LEGAL NAME OF COMPANY:

  	
  UNION PACIFIC RAILROAD COMPANY

  
	
   

  	
   

  
	
  TYPE OF COMPANY:

  	
  A DELAWARE CORPORATION

  
	
  i.e. a Minnesota Corporation,
  a Minnesota Limited Liability Company, etc.

  
	
   

  	
   

  
	
  TYPE OF LABOR, SERVICES OR

  	
   

  
	
  MATERIALS
  SUPPLIES TO THIS PROJECT:

  	
  LABOR AND MATERIAL FOR INDUSTRIAL

  
	
   

  	
  TRACKS

  



 


I hereby certify the information above is
true and correct.


 


	
  Signature:

  	
  /s/ Milli M. Scheer

  	
   

  
	
   

  	
   

  	
   

  
	
  Printed Name:

  	
  Milli M. Scheer

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:

  	
  Sr. Project Manager

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  April 21, 2004

  	
   

  



 


UNION PACIFIC RAILROAD