Exhibit 10.17
Form of Phase I and Phase II
Engineering Services Agreement
THIS FORM OF PHASE I AND PHASE II
ENGINEERING SERVICES AGREEMENT (the “ Agreement ”) is made
as of February , 2006, (the “
Effective Date ”) by and between
, a Delaware limited liability company (the “ Client
”) and Fagen Engineering, LLC a Minnesota Limited Liability
Company (the “ Engineer ”). Each of the Client
and Engineer are referred to herein individually as a “
Party ” and collectively as the “ Parties
.”
RECITALS
WHEREAS , Client is developing a 100 million
gallons per year dry grind ethanol production facility to be
located in
(the “ Plant ”) to be owned and operated by
Client; and
WHEREAS , Client and Fagen, Inc. (“Design -
Builder”) intend to enter into that certain Lump-Sum
Design-Build Agreement (“ Design-Build Agreement
”) under which the Fagen, Inc., an affiliate of Engineer,
will serve as the design-builder for the Plant and provide design,
engineering, procurement and construction services for the
development and construction of the Plant; and
WHEREAS , Client wishes to retain an entity in advance
of entering into the Design-Build Agreement to perform certain
engineering and design work that will be required under the
Design-Build Agreement on the terms and conditions set forth in
this Agreement, and Engineer desires to act as such entity upon the
terms and conditions set forth in this Agreement.
NOW, THEREFORE
, in consideration of the mutual
promises contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound by this Agreement,
the parties do hereby agree as follows:
Article 1
Definitions; Rules of
Interpretation
1.1 Rules of
Construction.
The capitalized terms listed in this
Article 1 shall have the meanings set forth herein whenever the
terms appear in this Agreement, whether in the singular or the
plural or in the present or past tense. Other terms used in this
Agreement but not listed in this Article shall have meanings as
commonly used in the English language and, where applicable, in
generally accepted construction and design-build industry
standards. Words not otherwise defined herein that have well known
and generally accepted technical or trade meanings are used herein
in accordance with such recognized meanings. In addition, the
following rules of interpretation shall apply:
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1.
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(a) The
masculine shall include the feminine and neuter.
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2.
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(b) References
to “Articles,” “Sections,”
“Schedules,” or “Exhibits” shall be to
Articles, Sections, Schedules or Exhibits of this
Agreement.
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(c)
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This Agreement
was negotiated and prepared by each of the Parties with the advice
and participation of counsel. The Parties have agreed to the
wording of this Agreement and none of the provisions hereof shall
be construed against one Party on the ground that such Party is the
author of this Agreement or any part hereof. The following
definitions will apply in this Agreement:
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1.2 Defined Terms.
In addition to definitions appearing
elsewhere in this Agreement, the following terms have the following
meanings:
Agreement will have the meaning given to such term in the
Preamble to this Agreement.
Applicable Law
means
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(a)
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any and all
laws, legislation, statutes, codes, acts, rules, regulations,
ordinances, treaties or other similar legal requirements enacted,
issued or promulgated by a Governmental Authority;
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(b)
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any and all
orders, judgments, writs, decrees, injunctions, Governmental
Approvals or other decisions of a Governmental Authority;
and
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(c)
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any and all
legally binding announcements, directives or published practices or
interpretations, regarding any of the foregoing in (a) or
(b) of this definition, enacted, issued or promulgated by a
Governmental Authority;
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to the extent, for each of the
foregoing in (a), (b) and (c) of this definition,
applicable to or binding upon (i) a Party, its affiliates, its
shareholders, its members, it partners or their respective
representatives, to the extent any such person is engaged in
activities related to the Services; or (ii) the property of a
Party, its affiliates, its shareholders, its members, its partners
or their respective representatives, to the extent such property is
used in connection with the Services or an activity related to the
Services.
Client will have the meaning given to such term in the
Preamble to this Agreement.
Client’s
Representative will have
the meaning given to such term in Section 4.1.
Design-Build Agreement
will have the meaning given to such
term in the Recitals to this Agreement.
Effective Date
will have the meaning given to such
term in the Preamble to this Agreement.
Engineer will have the meaning given to such term in the
Preamble to this Agreement.
Engineer Responsible
Parties will have the
meaning given to such term in Section 4.10.
Governmental Approvals
will mean any material
authorizations or permissions issued or granted by any Governmental
Authority to the Project, the Client, the Engineer, subcontractors
and their affiliates in connection with any activity related to the
Services.
Governmental Authority will mean any federal, state, local or municipal
governmental body; any governmental, quasi-governmental, regulatory
or administrative agency, commission, body or other authority
exercising or entitled to exercise any administrative, executive,
judicial, legislative, policy, regulatory or taxing authority or
power; or any court or governmental tribunal; in each case having
jurisdiction over the Client, the Engineer, the Plant, or the
Site.
Monthly Invoice
will have the meaning given to such
term in Section 5.7.
Party or Parties
will have the meaning given to such
term in the Preamble to this Agreement.
Phase I Deliverable
Site will mean the
Client’s Deliverable Site obligations pursuant to Exhibit C
attached to this Agreement.
Phase I Design Package
will have the meaning given to such
term in Section 3.1.
Phase II Design
Package will have the
meaning given to such term in Section 3.1.
Phase II Final Civil Design
Plan will mean the
Client’s Deliverable Site obligations pursuant to Exhibit C
attached to this Agreement.
Plant will have the meaning given to such term in the
Recitals to this Agreement.
Project will mean the Plant, together with all
equipment, labor, services and materials furnished under the
Design-Build Agreement.
Services will have the meaning given to such term in
Section 3.1.
Site will mean the land or premises on which the
Plant is located.
Subcontractor
will mean any person or entity,
including but not limited to independent engineers, associates, and
consultants, retained by Engineer, or by any person or entity
retained directly or indirectly by Engineer, in each case as an
independent contractor, to perform a portion of the
Services.
Work Product
will have the meaning given to such
term in Section 8.1.
Article 2
Retention of the
Agent
2.1 Retention of Services. On the terms and
subject to the conditions hereinafter set forth, Client hereby
retains Engineer to perform, and Engineer hereby agrees to perform,
the Services. Engineer will provide such Services solely pursuant
to the terms and conditions set forth herein including any
indemnifications and limitations on liability.
Article 3
Engineer
Responsibilities
3.1 Services. Engineer shall perform the
engineering services necessary to satisfy the requirements of the
Phase I Deliverable Site (“ Phase I Design Package
”) and the Phase II-Final Civil Design Plans (“
Phase II Design Package ”) engineering services
required under the Design-Build Agreement (collectively, “
Services ”).
3.2 Phase I Design Package. (Grading and
Drainage). The Phase I Design Package to be provided by
Engineer shall consist of the engineering and design of the Plant
Site and shall include the following drawings:
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b)
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Property Layout
Drawing
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c)
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Grading,
Drainage and Erosion Control Plan Drawing (Multiple Drawings if
Required)
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i.
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Used for Land
Disturbance Permitting
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ii.
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Site grading is
held 6-inches low for topsoil and seeding
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d)
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Roadway
Alignment Drawing
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e)
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Culvert Cross
Sections and Details (Multiple Drawings)
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f)
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Seeding and
Landscaping (If Required)
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Plan sets along with a Bid
Tabulation Sheet will be supplied to the Client so all contractors
bid the same quantities. A telephone conference call for a Phase I
pre-bid meeting will be provided upon Client’s request.
Engineer shall also coordinate with Client’s consultants
regarding the interconnection of utilities to be provided to the
Plant Site by the Client and the layout of utilities.
3.3 Delivery of Phase I Design Package.
Engineer shall deliver the completed Phase I Design Package no
later than 60 days after the receipt of all Client deliverables
pursuant to Article 4 of this Agreement.
3.4 Phase II Design Package. The Phase II
Design Package to be provided by Engineer shall provide the
engineering and design of Site work and utilities for the Plant,
all within the property line of Plant, and shall consist of the
following:
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b)
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Property Layout
Drawing
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c)
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Site Grading
and Drainage Drawing (Final Interior Plant Grading)
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e)
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Utility Layout
(Fire Loop)
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i.
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The Client is
required to select an insurance provider to allow the proper
positioning and number of required hydrants and hydrants with
monitors.
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f)
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Utility Layout
(Potable Water)
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g)
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Utility Layout
(Well Water) if using on-Site wells
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h)
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Utility Layout
(Sanitary Sewer)
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i.
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Fagen
Engineering does not design any on-Site septic treatment or drain
field, this will be designed by others and completed by the Client
at the Client’s expense.
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i)
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Utility Layout
(Utility Water Blowdown)
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i.
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The Client is
required to supply the NPDES discharge point to allow
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