LEASE
THIS LEASE is made and entered into this 6th day of September, 1979, by and
between BROKEN CIRCLE CATTLE CO., a Wyoming Corporation of Star Route #1, Box
21, Evanston, Wyoming 82930 (hereinafter referred to as "Lessor") and NORTHERN
GAS PRODUCTS COMPANY, a Delaware Corporation with principal offices at 2223
Dodge Street, Omaha, Nebraska 68102 (hereinafter referred to as "Lessee").
WITNESSETH THAT:
WHEREAS, Lessor is the owner of the following described property situated
in Uinta County, Wyoming, to wit:
Section 35, T15N, R120W, 6th P.M., Uinta County Wyoming as described in
Warranty Deed dated January 18, 1973 and recorded in Volume 294 at Page
368, Deed Records of Uinta County, Wyoming.
WHEREAS, Lessee desires to lease a portion of Lessor's above described
property for the purpose of constructing, installing, erecting, operating,
maintaining, inspecting, repairing, replacing and removing a natural gas liquids
and/or petroleum products storage, loading and shipping facilities including all
appurtenances and accessories thereto; and
WHEREAS, Lessor has stated its willingness to lease to Lessee a certain
portion of Lessor's above described property; and
WHEREAS, Lessor and Lessee have agreed upon the terms and conditions under
which a portion of said property shall be leased to Lessee.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements of the parties herein contained, the parties hereto agree as follows:
1. Lessor does hereby lease and demise unto Lessee the following described
property situated in Uinta County, Wyoming, to wit:
A tract of land out of the SW/4, SE/4 and the SE/4, SW/4 of said section
35, T15N, R12OW, 6th P.M., more particularly described and shown on Exhibit
"A" attached hereto and by this reference made a part hereof.
(hereinafter referred to as the "leased premises") for the construction,
installation, erection, operation, maintenance, inspection, repair, replacement
and removal of a natural gas liquids and/or petroleum products storage, loading
and shipping
facilities, including if necessary or desirable, processing and/or separations
facilities and including all appurtenances and accessories thereto, together
with the right to construct, maintain, occupy and use a roadway, the location
and description of which is shown on Exhibit A attached hereto and made a part
hereof, for access to and from the Lessee's above mentioned facilities.
2. The primary term of this Lease shall be few) a period of thirty (30)
years commencing on the 6th day of September, 1979, and ending on the 5th day of
September, 2009, unless sooner terminated as hereinafter provided. At the
expiration of the primary term of this Lease (if this Lease is then in full
force and effect) and thereafter at the end of each extended term, Lessee may,
at its option exercisable in the manner provided below, renew and extend the
term of this Lease for successive terms of five (5) years, each upon the same
terms, conditions and covenants contained herein. If Lessee shall elect to renew
this Lease as hereinabove provided, the notice of exercise of Lessee's option to
renew shall be given to Lessor in writing (delivered to Lessor or mailed to it
by certified or registered United States Mail) not less than sixty (60) days
prior to the expiration of the primary term or any extended term, as the case
may be, of this Lease.
3. Lessee shall pay the Lessor a base rental of Thirty Thousand and 00/100
Dollars ($30,000.00) per year during the period this Lease is in effect, payable
in advance. Commencing with the second anniversary of the commencement of this
Lease and on each yearly anniversary thereafter, the base rental shall increase
or decrease, as the case may be, by an amount equal to the Percentage Change in
the Consumer Price Index. Such rental adjustment shall be effective for the
ensuing one year period until further adjusted as above provided.
As used in this Paragraph 3:
(a) "Consumer Price Index" shall mean that index entitled, "All Items, Wage
Earners and Clerical Workers", revised (CPI-W) (1967=100), issued by the Bureau
of Labor Statistics of the United States Department of Labor, Washington, D.C.
(b) "Percentage Change" shall be a percent in the amount of any increase or
decrease in the level of the Consumer Price Index, as herein defined, as it
stands on the anniversary date for which the adjustment is being made, from the
level of the Consumer Price Index as it stood on the immediately preceding
anniversary date of this Lease. In the event that the commencement date of this
Lease shall occur on any day other than the first day of the month, the
"anniversary date" for purposes of applying the level of the Consumer Price
Index shall be the first day of the month in which the anniversary occurs.
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In the event that the consumer Price Index is not available, the successor
or substitute index shall be used for the computations herein set forth. In the
event that the Consumer Price Index or such successor or substitute index is not
published, a reliable governmental or nonpartisan publication, which is agreed
upon by both parties, and which evaluates the information theretofore used in
determining the Consumer Price Index, shall be used for the computations
provided for above.
The rental for the initial year of this Lease shall be paid on or before
the commencement date of this Lease, with each succeeding year's rental to be
paid on or within 20 days after the anniversary date of the commencement of this
Lease.
4. During the term of this Lease, Lessee shall keep and maintain the leased
premises in good, sanitary, and neat order, condition and repair. Upon
termination of this Lease, Lessee shall return the property to Lessor in as near
as practicable as good a condition as received, ordinary wear and tear, and
damage by fire, explosion, earthquake, flood, acts of God or the elements
excepted.
5. Lessee may construct, place, install or erect any building or buildings
(and appurtenances thereto) or other improvements, equipment or other personal
property upon said leased premises. In this regard, Lessor and Lessee agree that
any such building or buildings (and appurtenances thereto) or other
improvements, equipment or other personal property, constructed, placed,
installed, or erected by Lessee upon the leased premises shall be considered to
be the personal property of Lessee and shall in no manner become affixed to the
realty in the sense of permanent fixtures forming part of the freehold, and
Lessee shall have the right at any time and from time to time to remove all or
any portion of said personal property of Lessee. In this regard, Lessor grants
to Lessee after the expiration of this lease the right of ingress to and egress
from the leased premises for a period not to exceed ninety (90) days in order
that Lessee may remove any such personal property.
6. Lessor covenants that Lessor is seized of the leased premises in fee
simple and has full right to make this lease and that Lessee shall have quiet
and peaceable possession of the leased premises during the term hereof.
7. Lessor shall pay all real estate taxes and assessments which may be
levied or assessed against the land hereby leased. Lessee shall pay any such
taxes levied against any personal property of Lessee on said land or any
improvement placed or erected thereon by Lessee. Both parties agree to make
timely payment of any such taxes in order that the respective interest of Lessee
and Lessor shall not be adversely affected.
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8. Lessee shall keep the leased premises free and clear from any liens
arising out of any work performed, materials furnished, or obligations incurred
by Lessee. Lessor, shall, likewise, keep the leased premises free and clear from
any liens arising out of any work performed, materials furnished, or obligations
incurred by Lessor or Lessor's tenant.
9. Lessee shall have the right to fence all or any part of the above
described tract at Lessee's option. Lessee shall have the right to restrict
access and use of the roadway constructed by Lessee and described in Paragraph
1.
10. Lessee shall have the right, at Lessee's expense, to relocate any
irrigation facilities of Lessor or Lessor's tenant that in Lessee's sole
discretion interfere or may interfere with Lessee's present or future use of the
above described tract.
11. In the event that the leased premises shall be taken for public use by
any city, state, federal government, public authority or other corporation
having the power of eminent domain, then this Lease shall terminate as of the
date on which possession thereof shall be taken for such public use, or at the
option of Lessee, as of the date on which the premises shall become unsuitable
for Lessee's use thereof by reason of such taking; provided however, that if
only a part of the leased premises shall be so taken such termination shall be
at the option of Lessee only. If such a taking of only a part of the leased
premises occurs, and Lessee elects not to terminate this Lease, there shall be a
proportionate reduction of the rent to be paid under this Lease from and after
the date such possession is taken for public use. Lessee shall have the right to
participate, directly or indirectly, in any award for such public taking to the
extent that it may have suffered compensable damage as a Lessee on account of
such public taking. The term "eminent domain" shall include the exercise of any
similar governmental power and any purchase or other acquisition in lieu of
condemnation.
12. Any holding over after the expiration of the term of this Lease
(including any extension term), with the consent of Lessor, shall be construed
to be a tenancy from year to year, at the same yearly rental as provided in
paragraph 3 above, and on the same terms and conditions as contained in this
Lease.
13. Lessee shall have the right at any time to assign
all or any part of its interest under this Lease.
14. If Lessor or Lessee fails in any respect to comply fully with the terms
and provisions of the Lease, either the Lessor or Lessee may notify the
defaulting party in writing of the matters in regard to which default is
asserted. if the defaulting party does not either (a) cure such default within
sixty (60) days, or (b) utilize due diligence to begin, within such 60 day
period, to
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rectify such default if such default cannot be completely rectified within said
sixty (60) days, then the party not in default may, without waiving any other
rights or remedies it may have, terminate this Lease by giving written notice to
the other of such termination.
15. Lessee shall hold harmless and indemnify Lessor from and against any
and all loss or cost (excepting those caused by the negligence or willfull
misconduct of Lessor, its employees, agents, invitees or licensees) arising
directly from Lessee's use or enjoyment of said premises and from Lessee's
exercise of the rights and privileges granted hereunder.
16. Contemporaneous with the execution of this Lease, Lessor agrees to
execute and deliver to Lessee an easement, the form of which is attached hereto
as Exhibit B, for the construction, operation and maintenance of a pipeline or
pipelines across the following described property of Lessor:
Section 35, T15N , R12OW, 6th P.M., Uinta County, Wyoming as described in
Warranty Deed dated January 18, 1973 and recorded in Volume 294 at Page
368, Deed Records of Uinta County, Wyoming.
17. Notices by Lessor or Lessee, as hereinabove provided, shall be by
registered or certified United States Mail, postage prepaid, addressed to the
parties at their respective addresses as indicated on Page 1 of this Lease.
18. Each and every provision of this Lease shall be binding upon and inure
to the parties hereto and their heirs, executives, successors and assigns.
19. Notwithstanding any other provision to the contrary, this Lease may be
terminated by Lessee upon sixty (60) days written notice to Lessor.
IN WITNESS WHEREOF, the parties hereto have executed this lease the day and
year first above written.
"Lessor" "Lessee"
BROKEN CIRCLE CATTLE CO. NORTHERN GAS PRODUCTS
COMPANY
By /s/Philip Myers By /s/ Rex Donaldson
President Vice President
Attest: /s/Ken Myers Attest: /s/S.M. Sawtell
Secretary Secretary
5
STATE OF NEBRASKA )
ss
COUNTY OF DOUGLAS )
On this 4th day of September, 1979, before me, a Notary Public duly
commissioned and qualified in and for said County, personally came the above
named Rex Donaldson Vice President, S. M. Sawtell Secretary, of Northern Gas
Products Company who are personally known to me to be the identical persons
whose names are affixed to the above instrument as Vice President and Secretary
of said Corporation, and they acknowledged the instrument to be their voluntary
act and deed, and the voluntary act and deed of said Corporation.
WITNESS, my hand and official seal at Omaha, in said County, the date
aforesaid.
/s/J.H. Quinn
Notary Public
My commission expires the 5th day of March, 1982
STATE OF WYOMING )
ss
COUNTY OF UINTA )
On this 6th day of September, 1979, before me a notary public duly
commissioned and qualified in and for said County, personally came the above
named Philip Myers President, Ken Myers, Secretary, of Broken Circle Cattle Co.
who are personally known to me to be the identical persons whose names are
affixed to the above instrument as ______ President and ____ Secretary of said
Corporation, and they acknowledged the instrument to be their voluntary act and
deed, and the voluntary act and deed of said Corporation.
/s/Leonard K. Defa
Notary Public
My commission expires the 6th day of September, 1979.
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LEASE EXHIBIT A-1
[MAP]
LEASE EXHIBIT A-2
C. E. Spurlock, Jr. Associates
Consulting Engineers and Land Surveyors
C. E. SPURLOCK, JR. P.O. BOX O
P. E. &, L. S. LICENSE NO. 396 150 NORTH THIRD STREET
HAROLD E. O'MALLEY LANDER, WYOMING 82520
P. E. &, L. S. LICENSE NO. 468 PHONE (307) 332-5280
July 2, 1979
DESCRIPTION OF
TRACT PROPOSED TO BE PURCHASED BY NORTHERN GAS PRODUCTS CO.
A tract of land in the SW1/4SE1/4 and the SE1/4SW1/4 of
Section 35, Township 15 North, Range 120 West, 6th P.M., Uinta County, Wyoming,
more particularly described as follows:
Beginning at Corner No. 1, which is on the South line
of said Section 35 and on the Southwesterly right-of-way
line of the Union Pacific Railroad and bears N. 89(degree) 53' W.
a distance of 2359.8 feet from the Southeast corner of
said Section 35; thence proceed N. 89(degree) 53' W. along said
Section line a distance of 279.4 feet to Corner No. 2.,
the South quarter corner of said Section 35; thence
proceed S 89(degree) 53' W. along said Section line a distance of
333.45 feet to Corner No. 3; thence proceed Northwesterly
along a circular curve to the right a distance of 1201.14
feet to Corner No. 4 (the curve has a radius of 3364.65, a
tangent of 607.03, and a chord of 1194.77 - the chord
bears N. 37(degree) 32.6' W.); thence proceed N. 62(degree) 41' E. a
distance of 400.0 feet, more or less, to Corner No. 5
which is on the Southwesterly right-of-way line of said
railroad; thence proceed Southeasterly along said
right-of-way along a curve to the left a distance of
1154.2 feet to Corner No. 6 (the curve has a radius of
2964.65 feet, a
LEASE EXHIBIT A-3
C. E. Spurlock, Jr. Associates
Consulting Engineers and Land Surveyors
C. E. SPURLOCK, JR. P.O. BOX O
P. E. &, L. S. LICENSE NO. 396 150 NORTH THIRD STREET
HAROLD E. O'MALLEY LANDER, WYOMING 82520
P. E. &, L. S. LICENSE NO. 468 PHONE (307) 332-5280
July 2, 1979
tangent of 584.48 feet and a chord of 1146.88 feet the
chord bears S. 38(degree) 28.1' E.); thence proceed S. 49(degree) 26.3'
E. along said right- of-way a distance of 358.06 feet,
more or less, to Corner No. 1., the point of beginning.
This tract contains 12.447 acres.
P E. & L. S. WyomIng License
No. 396
EXHIBIT A-4
[MAP]