Username:
  
  Password:
  
  

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:

 

 

1.

(a) The masculine shall include the feminine and neuter.

 

 

2.

(b) References to “Articles,” “Sections,” “Schedules,” or “Exhibits” shall be to Articles, Sections, Schedules or Exhibits of this Agreement.

 

 

 

 

 

 

February 6, 2006

 

1

  

 


 

(c)

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:

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

 

 

(a)

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;

 

 

(b)

any and all orders, judgments, writs, decrees, injunctions, Governmental Approvals or other decisions of a Governmental Authority; and

 

 

(c)

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;

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.

 

 

 

 

 

 

February 6, 2006

 

2

  

 


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.

 

 

 

 

 

 

February 6, 2006

 

3

  

 


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:

 

 

a)

Cover Sheet

 

 

b)

Property Layout Drawing

 

 

c)

Grading, Drainage and Erosion Control Plan Drawing (Multiple Drawings if Required)

 

 

i.

Used for Land Disturbance Permitting

 

 

ii.

Site grading is held 6-inches low for topsoil and seeding

 

 

d)

Roadway Alignment Drawing

 

 

e)

Culvert Cross Sections and Details (Multiple Drawings)

 

 

f)

Seeding and Landscaping (If Required)

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:

 

 

a)

Cover Sheet

 

 

b)

Property Layout Drawing

 

 

c)

Site Grading and Drainage Drawing (Final Interior Plant Grading)

 

 

d)

Roadway Alignment

 

 

e)

Utility Layout (Fire Loop)

 

 

i.

The Client is required to select an insurance provider to allow the proper positioning and number of required hydrants and hydrants with monitors.

 

 

f)

Utility Layout (Potable Water)

 

 

g)

Utility Layout (Well Water) if using on-Site wells

 

 

h)

Utility Layout (Sanitary Sewer)

 

 

 

 

 

 

February 6, 2006

 

4

  

 


 

i.

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.

 

 

i)

Utility Layout (Utility Water Blowdown)

 

 

i.

The Client is required to supply the NPDES discharge point to allow line


This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more