exv10w6



 







Exhibit 10.6




GENERAL SERVICE AGREEMENT




     This General Service Agreement (“Agreement”) made this 28th day of March 2006, by and
between the Utility Engineering Corporation (“Consultant”), and Agassiz Energy LLC (“Company”),
(sometimes referred to individually as “Party” or collectively as “Parties).


WITNESSETH:



In consideration of the mutual covenants and conditions contained herein, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:





	1.	 	Notices. All notices and other communications pursuant to this Agreement shall be
in writing and
shall be deemed to have been duly given to the other Party (a) on the day it is personally
delivered or
transmitted by facsimile; (b) on the day after being sent by Federal Express (or comparable
overnight
delivery service), all fees prepaid; or (c) on the second day after being mailed by United
States
certified or registered mail, postage prepaid. If notice is sent via overnight delivery
service or U.S.
mail, it shall be sent to the other Party at the address set forth below, or at such other
address as shall
be given in writing by either Party to the other.





	 	 	 	 	 
	 

	 	To Company:
	 	Agassiz Energy LLC
	 

	 	 	 	Address: 510 County Road 71, Valley Technology Park
	 

	 	 	 	Address: Crookston, MN 56716
	 

	 	 	 	Consultant Representative: Mr. Donald Sargeant
	 

	 	 	 	Phone:(281)281-8442
	 

	 	 	 	Fax:(218)281-8052
	 

	 	 	 	Email: Sargeant@mail.crk.umn.edu
	 
	 	 	 	 
	 

	 	To Consultant:
	 	Utility Engineering Corporation
	 

	 	 	 	Address: 9420 Underwood Avenue, Suite 200

	 

	 	 	 	Address: Omaha, NE 68114
	 

	 	 	 	Company Representative: Mr. Thomas Rerucha
	 

	 	 	 	Phone: (402)548-4800
	 

	 	 	 	Fax: (402) 390-2005
	 

	 	 	 	Email: Thomas.L.Rerucha@ue-corp.com







	2.	 	Work. Consultant shall furnish all necessary personnel, supervision, equipment,
tools, and materials
as requested from time to time to provide the “Work” defined in a signed Task Order which
shall
reference this Agreement and include the scope of work, schedule, terms, and compensation
agreed to
by the Parties. The Task Order is attached hereto and incorporated herein for all purposes
as Exhibit
A.
	 
	3.	 	Term. This Agreement begins on the Effective Date and may be terminated by either
Party for its
convenience by thirty (30) days written notice to the other Party. In addition, either
Party may
terminate any Task Order entered into under this Agreement immediately upon written notice
to the
other Party, without cause. If Company terminates such Task Order in the absence of a
material
breach by Consultant, Company shall pay Consultant for all Work performed to the date of
termination, Work in progress, and third party cancellation fees, if any, plus any costs
associated with
demobilization.
	 
	4.	 	Independent Contractor. Consultant is an independent contractor and not an agent or
employee of
Company, and has the right and responsibility to manage and control Consultant’s employees,




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	 	 	representatives, and agents in the performance of Work hereunder, and the means,
manner and methods in which such Work is performed. Consultant is not an employee of
Company, nor entitled to credit for hours worked or benefits under any Company welfare
benefit plan.






	5.	 	Warranty. Consultant warrants that the Work performed under this Agreement will
conform in all
material respects to the requirements set forth in the Task Order under which such Work is
performed. Consultant further agree that if Company notifies Consultant in writing at any
time up to
the expiration of twelve (12) months after the date of Consultant’s completion of the Work
that such
Work does not conform in material respects to the requirements in such Task Order, and
specifies the
nature of the nonconformance, and if the Work does not, in fact, so conform, Consultant will
diligently re-perform, at its sole expense, the Work to the extent necessary to make it
conform.
	 
	 	 	Notwithstanding the foregoing, Consultant does not warrant or guarantee that any design,
engineering, specifications, equipment and/or materials supplied or specified by others
will produce any intended result or achieve any intended purpose.
	 
	 	 	CONSULTANT DISCLAIMS ALL OTHER WARRANTIES WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE
AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND/OR USAGE OF TRADE. THE REWORK
OBLIGATIONS STATED IN THIS ARTICLE 5 SHALL BE COMPANY’S SOLE AND EXCLUSIVE REMEDY FOR ALL
LIABILITY OF CONSULTANT ARISING FROM OR RELATED TO NON-CONFORMING OR DEFECTIVE WORK.
	 
	6.	 	Liens. Consultant agrees not to allow liens to be placed on the Work or Company
property for claims
of nonpayment by Consultant or its subcontractors to the extent Consultant has received
timely
payment from Company as required by Section 7 below.
	 
	7.	 	Payment for Work. For Consultant’s performance of Work under this Agreement, Company
agrees
to pay Consultant in accordance with pricing terms set forth in Exhibit A — Task Order.
Consultant’s
price does not include any state and local sales, use, excise, and other taxes of like
nature. Failure of
the Company to make payments to the Consultant in accordance with this Agreement shall be
considered a material breach of this Agreement.
	 
	8.	 	Payment Terms. Invoices for Work under this Agreement will be submitted by
Consultant in
accordance herewith. Payments required by such invoices shall be due and payable upon
receipt. If
Company fails to pay undisputed invoiced amounts within thirty (30) days after delivery of
invoice,
Consultant may, in addition to any other rights available under this Agreement, by law or in
equity,
require the payment of interest up to the maximum rate allowed by law by Company on all such
unpaid amounts. All payments shall be made in US Dollars, and shall be made by either of
the
following means:






	 	a.	 	Bank Draft or Cashier’s check mailed to Consultant via
Federal Express or Certified mail to Consultant’s address stated in Paragraph 1
hereof; or






	9.	 	Changed Requirements. Work not expressly set forth in this Agreement and/or the
applicable Task
Order is excluded from the scope. If any new or different requirement, condition, change or
anything
beyond Consultant’s control alters the scope of Work or otherwise affects the Consultant’s
costs or
schedule to perform the Work, whether as a result of any act or omission of Company or any
operation or change of law, code, regulation or standard (including but not limited to
changes to laws
imposing sales, use, excise, transportation, privilege, payroll or occupational taxes or
contributions)
that becomes applicable to the Work after the execution of the Task Order, then Consultant
shall be
entitled to additional time and compensation in order to complete the Work.






	10. 	Insurance. Consultant shall maintain workers’ compensation insurance with
statutory limits of
liability. Consultant shall maintain employer’s liability, professional liability,
commercial general
liability (bodily injury and property damage), and comprehensive automobile liability
(bodily injury
and property damage) insurance, with each policy having maximum limits of $1,000,000
combined
single limit. Consultant shall maintain excess liability coverage with limits of liability
of $1,000,000




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	 	 	for each occurrence and in the aggregate. Upon request, Consultant will provide
insurance certificates to the Company.






	11.	 	Confidentiality. Consultant agrees that it will maintain confidential for a period
of one (1) year all
information disclosed to Consultant in the course of performance of this Agreement, except:






	 	a)	 	information which, at the time of disclosure is or which, after the time of
disclosure, becomes
generally available to the public;
	 
	 	b)	 	information which Consultant or its employees received after the time of
disclosure from a
third party imposing no obligation of confidentiality and who is not known to have
acquired
any such information directly or indirectly from Company; .
	 
	 	c)	 	information which was in Consultant’s or its employees’ possession prior to
disclosure and
which was not acquired directly or indirectly from Company:
	 
	 	d)	 	information which was developed independently by Consultant
without benefit of
confidential and proprietary information furnished hereunder by Company; and
	 
	 	e)	 	information as may be authorized by Company to be disclosed.






Such confidential information shall not be disclosed to anyone except
employees of Consultant who it reasonably determines has a need to know the
confidential information and who have agreed to maintain such information
confidential.




Consultant shall promptly return the confidential information provided to Consultant by
Company to Company upon the termination of this Agreement or at Company’s request.




	12.	 	Indemnification, Waivers and Limitations of
Liability.






	 	a.	 	Indemnification by Consultant
	 
	 	 	 	Consultant agrees to indemnify, defend and hold harmless Company, it’s officers,
directors, shareholders, employees and agents (collectively “Indemnitees”) from and
against any claims, liabilities and costs (including reasonable attorneys’ fees) for
bodily injury, death or third party property damage to the extent caused by the
negligent acts or omissions of Consultant or it’s subcontractor’s in connection with
the Work. This indemnity shall survive the termination of this Agreement.
	 
	 	 	 	Indemnification by Company
	 
	 	 	 	Company agrees to indemnify, defend and hold harmless Consultant, it’s officers,
directors, shareholders, employees and agents (collectively “Indemnitees”) from and
against any claims, liabilities and costs (including reasonable attorneys’ fees) for
bodily injury, death or third party property damage, to the extent caused by the
negligent acts or omissions of Company, its other contractors or any third party
under Company’s control. This indemnity shall survive the termination of this
Agreement.
	 
	 	b.	 	COMPANY WAIVES ALL CLAIMS, PAST, PRESENT, AND FUTURE, AGAINST
CONSULTANT, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, PARTNERS, SUBSIDIARIES,
AFFILIATES, EMPLOYEES, AGENTS, AND SUBCONTRACTORS AND VENDORS OF ANY TIER FOR ALL
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES,
WHETHER OR NOT FORSEEABLE, IN ANY WAY ARISING OUT OF THE WORK OR THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO DAMAGE TO OR DESTRUCTION OF PROPERTY, LOSS OF PROFITS
OR REVENUE, LOSS OF USE, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, COST OF SUBSTITUTE
FACILITIES, GOODS, WORK OR SERVICES, COST OF CAPITAL, GOVERNMENTAL AND REGULATORY
SANCTIONS, OR CLAIMS OF CUSTOMERS.




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	 	c.	 	The total cumulative, aggregate liability of Consultant, its subsidiaries,
affiliates,
shareholders, directors, partners, officers, employees and agents, subcontractors and
vendors of any tier to Company for all claims, losses, liabilities, damages, costs
and
expenses arising out or relating in any way to the Work performed under a given Task
Order shall not be greater than the revenues received by Consultant from Company for
Work performed pursuant to the particular Task Order under which the claim arises.
	 
	 	d.	 	Consultant shall have no obligation to Company for any loss, cost or expense
resulting
from loss of or damage to Company’s property. Company waives all rights of recovery
it may have now or in the future and shall likewise require each insurer of Company’s
property to waive all subrogation rights against Consultant for any such loss, cost
or
expense.
	 
	 	e.	 	The following provision shall only be applicable if there are multiple owners
at the site:
Company represents that it is the sole owner of the Work, the land constituting the
site
of the Work, and the plant, facilities, inventory, and personalty located thereon (as
used
in this Paragraph 12(d), “Property”). If any third party has or acquires from Company
a legal or equitable right or interest in said Property, Company shall bind such
third
party to the indemnities, releases and limitations set forth herein. Upon failing to
do so,
Company shall INDEMNIFY, DEFEND AND HOLD HARMLESS Consultant from
liability for such Property damage, but only to the extent such liability exceeds the
limit
of liability stated in Paragraph 12 (b), above.
	 
	 	f.	 	TO THE FULLEST EXTENT PERMITTED BY LAW, THE WAIVERS, LIMITATION OF
LIABILITY AND INDEMNITY CONTAINED IN THIS AGREEMENT APPLY TO ALL
LIABILITY ARISING FROM THE CONSULTANT’S ACTIVITIES AND OBLIGATIONS
RELATED TO THIS AGREEMENT, AND ANY SEPARATE AGREEMENT WITH A
THIRD PARTY TO PERFORM SERVICES FOR COMPANY’S BENEFIT, EVEN IF
SUCH LIABILITY IS THE RESULT OF THE NEGLIGENCE, STRICT LIABILITY,
STATUTORY LIABILITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF CONTRACT, BREACH OF WARRANTY, OR VIOLATION OF LAW
BY CONSULTANT. THE WAIVERS AND LIMITS OF LIABILITY CONTAINED
HEREIN SHALL SURVIVE THIS AGREEMENT.






	13.	 	Reuse of Work Products. Title to all submittals and to all reports, documents and
other information prepared by Consultant in connection with the Work and which Consultant is
required to provide Company pursuant to this Agreement (“Documents”), except for Consultant’s
proprietary information, shall vest in Company when Company makes payment therefore as
provided in this Agreement. Nothing contained in this Section 14 shall be construed as
limiting or depriving Consultant of its right to use its basic knowledge and skill to design
or carry out other projects or work for itself or others, whether or not such projects are
similar to the Work to be performed under this Agreement. Rights to intellectual property
developed, utilized or modified in the performance of the Work shall remain the property of
Consultant. Consultant shall have the right to retain and use copies of drawings, documents
and engineering or other data furnished or to be furnished by Consultant and the information
contained herein. Company shall not acquire any rights to any of Consultant’s or any
subcontractors’ proprietary computer software that may be used in connection with the Work.
Documents are not intended or represented to be suitable for reuse by
Company or others. Any
reuse of the Documents without written verification by Consultant for the specific purpose
intended, will be at Company’s sole risk and without liability or legal exposure to
Consultant. If software is intended or expected to be developed under this Agreement,
Consultant may require that a software license agreement acceptable to Consultant be executed.
All proprietary information, software and processes of Consultant shall remain property of the
Consultant.
	 
	 	 	Company shall indemnify, defend, and hold harmless Consultant and its officers, directors,
partners, employees, successors and assigns from all claims, damages, losses and expenses




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including attorney’s fees arising out of or resulting from the use by Company or any third
party of the Documents other than as specifically authorized in writing by Consultant in
accordance with this Agreement, whether arising in contract, tort (including the negligence
of Consultant) or otherwise.








	14.	 	Force Majeure. Notwithstanding any other right Consultant may have at law or in
equity or any
other provision in this Agreement, Consultant will be excused from liability for any loss
and for
nonperformance of this Agreement, and shall be entitled to an extension of time, to the
extent its
Work is disrupted or delayed by an act, omission, neglect or default of Company, or any
third party,
fire or other casualty, labor disturbance, earthquake, tornadoes, and other acts of God,
acts or
omissions of government, terrorism, severe weather or any other cause beyond Consultant’s
reasonable control. If such disruption or delay will increase Consultant’s cost to perform
the Work,
Consultant will also be entitled to an equitable adjustment of its compensation.
	 
	15.	 	Miscellaneous.






	 	a.	 	Company shall provide to Consultant in a timely manner any information Consultant
indicates is needed to perform the Work hereunder. Consultant has the right to rely
on the accuracy of information provided by Company and its representatives.
	 
	 	b.	 	With respect to the subject matter contained herein, this Agreement constitutes
the entire
agreement between the Parties and supercedes all prior negotiations,
representations,
understandings or agreements, whether written, oral or otherwise.
	 
	 	c.	 	The provisions of this Agreement may not be waived, altered, changed or amended
except by
written instrument signed by both Parties hereto. No waiver of any provision of this
Agreement shall be construed or deemed to be a waiver of any other provision or
condition of
this Agreement, nor a waiver of subsequent breach of the same provision or condition.
	 
	 	d.	 	Neither Party may assign this Agreement or any of its rights and obligations
hereunder
without the express written consent of the other Party, which shall not be
unreasonably
withheld. Any assignment in violation of this provision shall be deemed null and
void. The
terms and conditions contained in this Agreement shall be binding upon the Parties
hereto,
and upon their respective successors and assigns.
	 
	 	e.	 	This Agreement, including its related terms, conditions, schedules, and
attachments, has been
negotiated at arms length and between Parties who are sophisticated and experienced
in its
subject matter. Each Party has been represented, or has had the opportunity to be
represented
by legal counsel in connection with this Agreement. Accordingly, any
rule of law
wherein
ambiguities in this Agreement would be construed against its drafter shall not apply.
	 
	 	f.	 	This Agreement shall be governed, interpreted and construed in accordance with
the laws of
the State of Minnesota without regard to any conflicts or choice of law principles of
that
State.
	 
	 	g.	 	In the event that any provision of this Agreement is held to be invalid for any
reason, that
provision shall be severed from this Agreement, and the remainder shall continue to
be in full
force and effect.
	 
	 	h.	 	Company shall not, and Company shall prevent Owner, if applicable, and Company’s and
Owner’s other contractors from, changing or modifying any engineering data or
drawings supplied by Consultant to Company in electronic format. Company shall
defend, indemnify, and hold Consultant and its officers, directors, and employees
harmless from any loss, expense, claim, liability, or cause of action arising out of
the change to or modification of




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	 	 	 	Consultant’s engineering data or drawings. Such provision survives
termination of this Agreement.






	 	i.	 	If the Consultant for any reason is not allowed to complete the Work, the Consultant
shall not
be held responsible for the accuracy, completeness, or constructability of
the construction documents prepared by Consultant if changed or completed by
the Company or others.
	 
	 	j.	 	The Consultant’s services under this Agreement are being performed solely for the
Owner’s
benefit, and no other party or entity shall have any claim against the
Consultant because of this Agreement or the performance or nonperformance of
Consultant’s services hereunder. The Company will incorporate a similar
provision in all contracts with subcontractors, consultants, vendors and
other persons or entities involved in the design, engineering, construction,
procurement, testing, and start-up of the project or facility for which the
Work is being performed in order to carry out the intent of this provision.
	 
	 	k.	 	In the case of conflict or ambiguity between the terms and
conditions of this Agreement and any other contract documents, the order of
control shall be:




i.
This Agreement,




ii. The Task Order,




iii. Any Attachment or Exhibits to the specific Task Order.




IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed the date
first above written.




	 	 	 
	COMPANY:

	 	CONSULTANT:
	 
	 	 
	Agassiz Energy LLC

	 	Utility Engineering Corporation






	 	 	 	 	 	 	 
	By:

	 	/s/ Donald Sargent	 	By:	 	/s/ Barry Richey
	 

	 	 
	 	 	 	 
	Name:

	 	Donald Sargent	 	Name:	 	Barry Richey
	Title:

	 	Chief Manager	 	Title:	 	Vice President






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EXHIBIT A



TASK ORDER




	 	 	 
	Consultant’s Legal Name:

	 	Effective Date of this Task Order:

	Utility Engineering Corporation

	 	
28 March 2006






	 	 	 	 	 
	Consultant’s Address:
	 	 	 	 
	 
	 	 	 	 
	Project Contact:

	 	Contact Address:
	 	Phone:
	 
	 	 	 	 
	Project Number:

	 	Project Name: Agassiz Project
	 	Task
Preliminary
Engineering and
Estimate





This Task Order is subject to the terms and conditions of the General Service Agreement
(“Agreement”) dated 28 March 2006 by and between Agassiz Energy LLC and the Utility Engineering
Corporation including all terms defined in the Agreement shall have the same meaning as if used
herein unless expressly provided otherwise in this Task Order.




SCOPE OF WORK



CONSULTANT shall perform the following duties for the above named Project (“Work”):

Preliminary engineering and estimating to arrive at a basis for an EPC contract for a 52
million gallon per year dry mill ethanol plant in Erskine, Minnesota. See attached scope of
work for additional details.



RECEIVABLES:
(i.e. reports, drawings): See attached scope of work.



DELIVERABLES:
See attached scope of work.




SCHEDULE




	 	 	 
	MILESTONE
DATES:
	 	 
	 
	 	 
	
Planned Start Date : 1 April 2006

	 	Planned Completion Date : 1 September 2006






TERM





	•	 	The term of this Task Order shall commence on 28 March 2006 and continue for approximately 5 months, unless otherwise terminated in accordance with this
Agreements.
	 
	•	 	If said Work or this Task Order is terminated, COMPANY shall
pay the CONSULTANT for all work performed to the date of termination,
Work in progress, and third party cancellation fees, if any.




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COMPENSATION



Agassiz Energy LLC will provide the following payments:




April 1,
2006   $200,000

May 1, 2006   $150,000

June 1, 2006   $150,000

July 1, 2006   $150,000




	 	 	 
	APPROVED for Agassiz Energy LLC

	 	APPROVED for Utility Engineering Corporation
	 
	 	 
	“COMPANY”

	 	“CONSULTANT”






	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	Donald Sargent	 	 	 	By:	 	Barry Richey	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date:

	 	March 28, 2006	 	 	 	 	 	Date:        29 March 06	 	






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