4. DEFINITIONSExcept where it is clear by the context that another meaning is intended, the following wordsand expressions shall be construed as follows:The word “Owner” shall mean Homeland Energy Solutions, LLC or their appointed representative.The word “Engineer” or “Chief Engineer” shall mean the TranSystems Appointed Engineer actingon behalf of the Owner to insure compliance with the plans and specifications.The word “Railroad” or “Railway Company” shall mean the local residing Rail Carrier, in thiscase the DM&E.The word “Work” shall mean all or any part of the matters covered by this Agreement or asdescribed by Technical Specifications, Special Provisions, and other documents provided toContractor.The word “Project” shall mean the entire undertaking to any part of which this contractrelates.The word “Contractor” shall mean the party of the second part or his authorizedrepresentatives. If the Contractor is a corporation, the words “he”, “him”, “his” wherever theyrefer to the Contractor, shall be read as “it” or its.”5. INDEPENDENT CONTRACTORThe Owner reserves no control whatsoever over the employment, discharge, compensation of orservices rendered by the Contractor’s employees, and it is the intention of the parties to thisagreement that the Contractor shall be and remain as Independent Contractor, and that nothing inthis agreement contained shall be construed as inconsistent with that status.6. LAWS AND ORDINANCESThe Contractor shall comply with all laws, ordinances and regulations in any way pertaining tothe Work.7. UNEMPLOYMENT AND RETIREMENT LEGISLATIONThe Contractor agrees to accept and hereby accepts, full and exclusive liability for thepayment of any and all contributions or taxes for unemployment insurance or old age retirementbenefits, pensions or annuities now or hereafter imposed by the Government of the United States orof any State thereof, which are measured by the wages, salaries, or other remuneration paid topersons employed by the Contractor on the Work, and furtheragrees to comply with all administrative regulations respecting the assumption of liability for theaforesaid contributions, and further agrees to reimburse the Railway Company for any of theaforesaid taxes or contributions, which, by law, the Railroad may be required to pay.
 
 

 
8. SALES AND USE TAXESUnless otherwise provided in the Special Specifications, the Contractor shall be responsiblefor and pay all sales and use taxes properly assessed under all laws in effect at the time contractis awarded, against any materials, tools, supplies, services and equipment furnished directly bythe contractor and used in the carrying out of the Work.9. CONTRACTORS UNDERSTANDINGIt is understood and agreed that the Contractor has, by careful examination, satisfied himselfas to the nature and location of the Work, the character, quality and quantity of the materials tobe encountered, the character of equipment, facilities, and special protection of building contentsor functions needed preliminary to and during the prosecution of the Work, the general and localconditions, and all other matters which can in any way affect the Work. No oral agreement orconversation with any officer, agent, or employee of the Engineer, Owner or Railway Company, eitherbefore or after the execution of this contract shall affect or modify any of the terms orobligations herein contained.10. USE OF COMPANY’S LANDOwner shall provide the land upon which the Work under this contract is to be done, and will,so far as it can conveniently do so, permit the Contractor to use so much of its land as isrequired for the erection of temporary construction facilities and storage of materials, togetherwith the right of access to same, but beyond this, the Contractor shall provide, at his cost andexpense, any additional and required.11. USE OF ADJOINING PROPERTYBefore entering upon or making use of any private property adjoining the work, the Contractor,at his expense, shall obtain and file with the Owner, the written permission of the Owner of suchproperty, and subsequent to vacation of premises, shall furnish the Owner a properly executedrelease of both Owner, railroad and Contractor from all damages.12. ASSIGNMENT OF CONTRACTThe Contractor shall not assign this contract or any part thereof without the written consentof the Owner. Such consent shall not release or relieve the Contractor from any of his obligationsand liabilities under the contract.
 
 

 
13. SUBCONTRACTORSThe Contractor shall submit for written approval a list of Subcontractors showing the workassigned to each, and no subcontract for any part of the Work shall be awarded to any party notacceptable to the Owner and approved by him in writing. Such approvals shall not release orrelieve the Contractor from any of his obligations and liabilities under this contract. Uponwritten request of the Owner, the Contractor shall terminate the employment on this Work of anySubcontractor who shall, in the opinion of Owner, fail to perform the work undertaken by him in asatisfactory manner and appropriate provisions to this effect shall be incorporated in allsubcontracts. The provisions of this contract shall be incorporated, by reference, in allsubcontracts and if so required by the Engineer, the Contractor shall furnish to the Engineerwritten statement, properly endorsed by the Subcontractor in question, that this has been done,before any Subcontractor shall begin work.14. CONTRACTOR’S RISKSThe work covered by this contract shall be at the risk of the Contractor in every respect, andhe shall be responsible therefore until it is completed and accepted by the Owner and the Owner.This responsibility shall include, but not be limited to, damage to and loss of any materialfurnished and delivered by the Contractor, Owner or railroad.15. WAIVERIt is expressly understood and agreed that any waiver on the part of Owner, of any term,provision or covenant of this contract, shall not constitute a precedent, not bind Owner, to awaiver of any succeeding breach of the same or any other of the terms, provisions or covenants ofthis contract.16. PERMITSUnless otherwise provided in the Special Specifications, the Contractor shall procure at hisown expense, and in due time, all permits and licenses, of any description, necessary for theconstruction and completion of the Work. The Contractor shall deliver to the Owner and Engineerall certificates of inspection for any part of the Work for which a certificate may be required.17. INDEMNITYThe Contractor shall indemnify and save harmless Owner and railroad from and against alllosses and all claims, demands, payments, suits, actions, recoveries, legal expenses, (includingany attorney’s fees incurred by Owner and railroad), and judgments of every nature and descriptionmade, brought or recovered against it, by reason of or caused, in whole or in part, by any act oromission of the said Contractor, his agents or employees in the execution of the work or inguarding the same.
 
 

 
18. Lien WaiversThe Contractor, shall deliver to Owner satisfactory lien waivers for material uses on thiscontract before payment is made.19. INSURANCEThe Contractor, at its own cost and expense, shall procure prior to commencement of any workunder this Agreement and shall maintain in full force and effect until all work has been completedand accepted, insurance in such form and issued by such insurance companies as shall besatisfactory to railroad and Owner. (a) Workmen’s Compensation Insurance which fully meets the requirements of anyWorkmen’s Compensation Law in force at the place where the Work is to be performedcovering all employees of said Contractor or of any subcontractor employed to performWork under this contract. The workers Compensation and Employers Liability shallcover contractor or any subcontractor employed to perform work on this contract. Thecertificate must contain a specific waiver of the insurance company’s subrogationrights against the railroad, Owner and Engineer.  (b) Public Liability Insurance providing for a limit of not less than 1,000,000Dollars for all damages arising out of the bodily injuries to or death of one person,and, subject to that limit for each person, a total limit of 2,000,000 Dollars for alldamages arising out of bodily injuries to or death of two or more persons, in any oneaccident, and regular Contractor’s Property Damage Liability Insurance providing for alimit of not less than 1,000,000 Dollars for all damages to or destruction of propertyin any one accident, and subject to that limit, a total (or aggregate) limit of2,000,000 Dollars for all damages to or destruction of property during the policyperiod.Prior to commencement of any work under this agreement, Contractor shall furnish to Owner theoriginal of the Railroad Protective Liability Insurance policy specified in (c) above.The Contractor shall also furnish to Engineer and Owner certificates of insurance as evidenceof compliance with (a) and (b) above. All such insurance shall provide that same shall not bealtered or cancelled without at least 30 days prior notice to Owner.It is understood and agreed by the Contractor that the furnishing by it of the above insuranceand the acceptance of same by Owner is not intended to and shall not limit, affect or modify theobligations of the Contractor under any provision of this agreement.
 
 

 
20. SUPERINTENDENCEThe Contractor shall give constant and efficient attention to the faithful and diligentprosecution of the Work and during its progress shall be represented at all times at the site ofthe Work by a competent superintendent acceptable to the Engineer.21. ORDER AND DISCIPLINEThe Contractor shall at all times enforce strict discipline and good order among hisemployees. The Contractor, insofar as his authority extends, shall not permit the sale,distribution or use of any alcoholic beverages or intoxicating liquors upon or adjacent to theWork.22. NOTICE — HOW SERVEDAny notice to be given by Engineer or Owner to the Contractor under this contract shall bedeemed to be served if the same be delivered to the person in charge of the office used by theContractor, or to his representative at or near the Work, or deposited in the post office,postpaid, addressed to the Contractor at his last known place of business.23. SAFETY REQUIREMENTSThe Contractor shall furnish and maintain, at his own cost and expense and to the satisfactionof the Engineer, all requisite watchmen, lights, barricades, safeguards, fences, temporarywaterproofing measures and other facilities for the protection of the Work and the safety of thegeneral public and of employees of Owner, railroad and Engineer, of any other railroad whosetracks, facilities or operations will be affected by or are near the Work, and of the Contractor.Precaution shall be exercised at all times for the protection of persons and property. The safetyprovisions of applicable laws, building and construction codes shall be observed. Machinery andequipment and other hazards shall be guarded in accordance with the safety provisions of theManual of Accident Prevention in Construction, published by the Associated GeneralContractors of America, to the extent that such provisions are not inconsistent with applicable lawor regulation. Job briefings will be conducted prior to any work commencing. The job briefingwill cover all tasks to be accomplished that day and the associated risks involved. All jobbriefings will be documented and signed by the job site foreman/superintendent. All personnelshall have current Railroad Contractor Orientation Course.24. POSITION AND ELEVATONSThe Contractor will layout all of the Work and shall make all measurements and elevationdeterminations required for all work in this contract at his own expense.25. PRESERVATION OF REFERENCE BENCH MARKSThe Contractor shall carefully preserve any existing benchmarks and reference points, and incase of willful or careless destruction, he will be charged with the resultingexpense and shall be responsible for any mistakes that may be caused by their unnecessary loss ordisturbance.
 
 

 
26. REPORT ERRORS AND DISCREPANCIESBefore starting the Work, the Contractor shall examine and compare the plans andspecifications and shall report to the Engineer any errors or discrepancies found therein. If theContractor, in the course of the Work, finds any discrepancy between the plans and the physicalconditions of the locality or any applicable building code or ordinance, or any errors or omissionsin plans or in the layout as given by said points and instructions, it shall be his duty to informthe Engineer immediately, and the Engineer shall promptly verify the same. Any work done aftersuch discovery, until authorized by the Engineer, will be done at the Contractor’s risk.27. AUTHORITY OF ENGINEERThe Engineer is authorized to reject or condemn all work or material, which does not conformto this Agreement. If any tools or equipment are unsafe, defective or inadequate for carrying outthe Work, the Engineer may require the removal of such equipment and Contractor shall, withoutdelay, substitute satisfactory equipment therefore.28. INSPECTIONAll work and material shall be at all times open to the inspection, acceptance or rejection ofthe Owner and Engineer or his authorized representative. The Contractor shall give the Owner andEngineer reasonable notice of starting any new work and shall provide reasonable and necessaryfacilities for inspection even to the extent of taking out portions of finished work; in case thework is found satisfactory, the cost of removal and replacement shall be paid by Owner. No workshall be done outside the agreed regular working hours without previous approval of the Engineer.29. DEFECTIVE WORK OR MATERIALThe Contractor shall remove, at his own expense, any work or material condemned by theEngineer, and shall rebuild or replace the same without extra charge.Any omissions or failure on the part of the Engineer to disapprove or reject any work ormaterial shall not be construed to be an acceptance of any defective work or material.30. PATENTED DEVICESIn case the Contractor shall make use of or employ any patented devices or appliances eitherfor carrying on the Work or in connection with the materials supplied, whether the terms of thespecifications require such to be used or not, he shall satisfy allclaims or charges for lease, privilege or royalty, and shall, at his expense, defend Owner againstany and all claims or suits which may arise from any infringements of patent rights, and indemnifyand save harmless Owner against any judgment of recovery as a result thereof, and notwithstandingany approval of such devices, appliances or materials under Sections 29 and 30 hereof.
 
 

 
31. PROTECTION OF RAILROAD SERVICES AND FACILITIESThe contractor shall use special care and vigilance to avoid damage to the trains, tracks, orother facilities of Owner and railroad and shall conduct his work so as not to interfere with themovement of trains or other operations of railroad. The Contractor shall not proceed with any workwhich might endanger or interfere with the movement of trains, operations or other facilities untilprotection satisfactory to the Engineer has been provided. If, in the opinion of the Engineer,trains, tracks, or other facilities are or may become endangered by the operations of theContractor, he shall immediately do such work as may be ordered by the Engineer to restore safetyand, upon failure of the Contractor to carry out such order immediately, railroad may take whateversteps are necessary to restore safe conditions. The cost and expense to railroad of restoring safeconditions or of any damages to the trains, tracks or other facilities caused by the Contractor’soperations shall be charged against the Contractor and paid by him or may be deducted from anyamounts due, or which become due him under this contract. The cost of furnishing watchmen,flagmen, or other personnel required for the protection of the facilities or operations of railroador any other railroad shall be borne as provided for in the General Conditions.Contractor is aware of the special requirements and duties placed on Contractor by this Section 32and Contractor hereby expressly acknowledges its duty to perform the Work in such a manner so as toallow the railroad’s continued uninterrupted use of and operations from the mainline tracks.Contractor acknowledges that should railroad’s use or operations from the mainline tracks beinterrupted that railroad likely to experience substantial consequential and incidental damages aswell as direct damages associated with this interrupted use of and operations from the mainlinetracks and that Contractor all of railroad’s direct, consequential and incidental damages whichrailroad suffers as a result of the Contractor’s failure to fulfill the provisions of this Section32.32. CHANGE OF FACILITIES OF OTHERSIf in the conduct of the Work any temporary changes or alterations in water, oil or gaspipelines, sewers, drains, conduits, fences, electric line or power lines, telephone or telegraphor other wires, poles, etc., of others are necessary, either for the convenience of the Contractoror for the performance of the Work, the responsibility for making such changes will rest with theContractor unless otherwise provided elsewhere in this agreement; and he shall arrange for suchchanges to be made at his own expense.If such changes are of a permanent character and made necessary solely by the improvementitself and not incident to the performance of the Work, then, in that case, such changes will bearranged for by the Owner or others without cost to the Contractor.
 
 

 
33. RIGHTS OF VARIOUS INTERESTSWherever work being done by Owner or railroad forces or by other contractor is contiguous towork covered by this contract, the respective rights of the various interests involved shall beestablished by the Engineer, to secure the completion of the various portions of the project ingeneral harmony.34. ORDER OF COMPLETION; USE OF COMPLETED PORTIONSThe Contractor shall complete any portion or portions of the work in such order of time as theEngineer may require. Owner shall have the right to take possession of and use any completed orpartially completed portions of the Work, notwithstanding the time for completing the entire Workor such portions thereof may not have expired; but such taking possession and use shall not bedeemed an acceptance of the Work so taken or used or any part thereof. If such prior use increasesthe cost of or delays the Work, the Contractor shall be entitled to such extra compensation orextension of time, or both, as the Engineer may determine.35. CHANGESOwner shall have the right to make any changes that may be hereafter determined upon, in thenature or dimensions of the Work. If such changes appreciably affect the cost of the Work to theContractor, he shall, before proceeding with the Work, so notify the Owner in writing, and thedifference shall be equitably adjusted by the Owner.If such changes so warrant, the Owner may, at his option, require an increase in the amount ofcoverage afforded by the Bond and Insurance under Sections 18 and 19 hereof, but such changes inthe Work shall not affect the validity of such bonds or insurance and shall not serve to relieve orrelease any surety of said bonds. Owner agrees to reimburse the Contractor for any reasonableincrease in Contractor’s Bond or Insurance premiums which result from any such ordered increase incoverage.36. EXTRA WORKIf, in the opinion of the Owner, any work should be done or material furnished which is notincluded, contemplated or classified in this contract, the Contractor shall, upon written order ofthe Owner, do such extra work or furnish such extra material. Buy agreement between the Contractorand the Owner, such extra work or material may be paid for on a lump-sum basis or on the basis ofunit prices, or other method as agreed upon by the Owner and Contractor. No bill or claim forextra work or material shall be allowed or paid unless done or furnished on written order from theOwner.Bills or claims for extra work shall be presented to the Owner at the time of making thefirst monthly estimate after such work or material has been done or furnished, and such bills or claimsmust be accompanied by a copy of the Owner’s order covering such work or material. Any such extrawork done or material furnished under the provisions of this paragraph shall be covered, governedand controlled by all the terms and provisions of this contract, subject to such prices as may beagreed upon or fixed by the Owner. The Contractor shall furnish the Owner reports in the number,form and detail prescribed by the Owner of all extra work done or material furnished.
 
 

 
37. SUSPENSION OF WORKOwner may at any time suspend the Work, or any part thereof, by giving not less than seven (7)calendar days’ written notice to the Contractor, and if such suspension appreciably affects thecost of the Work to the Contractor, the difference shall be equitably adjusted by the Owner. TheContractor shall not suspend the Work, nor any part thereof, without written authority of theOwner. The Work shall be resumed by the Contractor in seven (7) calendar days after written noticefrom Owner to the Contractor to do so and the date fixed for completion shall be extended by aperiod equal to the period of suspension. Owner shall not be held liable for any damages or lossof anticipated profits on account of the Work being suspended, or for any work done during theinterval of suspension.38. DELAYS IN PERFORMANCEIn the event that the Work to be performed by Contractor is delayed without Contractor’s faultor for causes beyond Contractor’s control, Contractor, will, within seven calendar days aftercommencement of any condition which is causing or may cause delay, notify Owner in writing of thenature and causes of such delay. Should contractor fail to so notify Owner, Contractor shall bedeemed to have waived all rights Contractor may have for an extension in time in the performance ofWork. Contractor agrees that Contractor’s only remedy for delays which notice has been given asprovided above shall be for an extension of time by the number of days by which Contractor has beendelayed as determined in the sole and absolute discretion of the Owner, and that Contractor shallnot be entitled to any recovery for loss, expense or damage resulting from any such delay.39. ANNULMENT WITHOUT FAULT OF CONTRACTOROwner shall have the right at any time, for reasons which appear good to it, to annul thiscontract upon giving written notice to the Contractor, in which event the Contractor shall beentitled to the full amount of the estimate for the work done by him under this contract up to thetime of such annulment, including the retained percentage. The Contractor shall be reimbursed byOwner for such expenditures as in the judgment of the Owner are not otherwise compensated for, andas are required in preparing for and moving to and from the Work; the intent being that anequitable settlement shall be made with the Contractor.
 
 

 
40. REMOVAL OF EQUIPMENTUpon completion of the Work, or in case of annulment of this contract before completion forany cause whatever, the Contractor, if notified to do so by Owner, shall promptly remove any partor all of his equipment, materials, tools and supplies from the property of Owner, failing whichOwner shall have the right to move such equipment, material, tools and supplies at the expense ofContractor.41. CHARGES AGAINST CONTRACTOROwner shall have the right to apply any sums due or to become due to the Contractor under thiscontract in payment of any liabilities of the Contractor, or of any Subcontractor, to railroad forfreight charges, rental of equipment, furnishing labor, materials or supplies, or for any othercharges originating from this contract.42. WITHHOLDING OF PAYMENTIf the Contractor fails to meet and pay all of his just obligations outstanding for labor,materials or supplies at the time when an estimate for payment is due him, or if any liens, claimsor demands arising out of or in connection with the Work or its performance shall be outstanding atthe time any payment may be due or is likely to be made thereafter, or if any claims arising out ofor in connection with the Contractor’s operations under this contract are made against Owner by anyother person than the Contractor, or, if in the opinion of the Owner, the Contractor is notproceeding with the Work in accordance with the provisions of this contract, Owner shall have theright to withhold out of any payments, final or otherwise, such sums as the Owner may deem ample toprotect it against delay or loss or to assure the payment of just claims of third persons, and atits option, as agent for the Contractor, to apply such sums in such manner as the Owner may deemproper to secure such protection or to satisfy such claims. Such application shall be deemedpayments for the Contractor’s account. The Owner may withhold payment to the Contractor on accountof the failure of the Contractor to fully comply with any requirements of this contract.43. QUANTITIESMeans of measurement and payment are outlined in the drawings and specification. All priceslisted in the contract shall constitute full payment for all labor, tools, materials, equipment andother incidentals necessary to complete the work. Any adjustments in quantities must be handled asa change in accordance with paragraph 36 of this agreement.44. MONTHLY ESTIMATEA monthly pay estimate will be prepared using the bid tabs from the bid proposal. All thequantities will be measured and agreed upon by the field representatives for the Contractor and theOwner. The initial pay estimate will be prepared on an agreed upon date after mobilization andevery 30 days thereafter, until completion of the project.
 
 

 
45. CLEANING UPThe Contractor shall, as directed by the Owner, remove from Owner’s property and from allpublic and private property, at his own expense, all temporary structures, rubbish and wastematerials resulting from his operations. Floors and sidewalls or loading docks of structures shallbe left broom clean. Prior to final acceptance, all work done by the Contractor shall be cleanedup and the premises occupied by the work left in a neat and orderly condition satisfactory to theOwner.46. DAILY REPORTS AND ACCOUNTING INFORMATIONIf required by the Owner, the Contractor shall furnish a daily statement of labor andequipment, distribution as to each item of work performed, showing hours worked and rates for thevarious classes of labor. At the completion of the Work, the Contractor shall furnish to theOwner, a complete list of unit quantities, unit costs and such other information as may be requiredby Owner to comply with the accounting requirements of the Interstate Commerce Commission.Contractor shall furnish Owner “as built” drawings of the Work.47. ACCEPTANCEThe work shall be inspected for acceptance by the Railway Company promptly upon receipt ofwritten notice that the Word is ready for inspection.48. FINAL ESTIMATEUpon the completion and acceptance of the Work, the Owner will make a final determination ofthe value of the Work completed to his satisfaction and shall determine the Final Payment due theContractor. The amount so determined shall be paid to the contractor as soon thereafter aspracticable, provided, however, before such final payment shall be made, the Contractor shallfurnish, if requested by the Owner, satisfactory evidence that all payrolls, bills for material andother indebtedness in connection with the Work have been paid and that all liens, claims or suitsfor labor performed or material furnished in connection with the Work covered by this contract havebeen made. The Contractor expressly agrees to reimburse Owner for any amounts that the latter maybe compelled to pay in satisfying such actions, including attorney’s fees incurred by the Owner insatisfying such claims or actions.49. RELEASEThe Contractor at final payment will execute, acknowledge and deliver to Owner under his handand seal a valid discharge from all claims and demands growing out of or connected with thiscontract.
 
 

 
THIS AGREEMENT shall inure to the benefit of and be binding upon the legal representatives andsuccessors of the parties respectively.IN WITNESS WHEREOF, The said Contractor and Owner, have executed this agreement as of the dayand year first above written.     Homeland Energy Solutions