exv10w13



 







EXHIBIT 10.13




PHASE I AND PHASE II




ENGINEERING SERVICES AGREEMENT




BETWEEN




E-ENERGY ADAMS, LLC




AND




FAGEN ENGINEERING, LLC




January 18, 2006





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	Article 1 Definitions; Rules of Interpretation
	 	 	1	 
	 
	 	 	 	 
	1.1 Rules of Construction
	 	 	1	 
	1.2 Defined Terms
	 	 	2	 
	 
	 	 	 	 
	Article 2 Retention of Agent
	 	 	4	 
	 
	 	 	 	 
	2.1 Retention of Services
	 	 	4	 
	 
	 	 	 	 
	Article 3 Engineer Responsibilities
	 	 	4	 
	 
	 	 	 	 
	3.1 Services
	 	 	4	 
	3.2 Phase I Design Package
	 	 	4	 
	3.3 Delivery of Phase I Design Package 
	 	 	4	 
	3.4 The Phase II Design Package 
	 	 	4	 
	3.5 Delivery of Phase II Design Package 
	 	 	5	 
	3.6 Delays
	 	 	5	 
	3.7 Utility Routing and Design Services Limited 
	 	 	5	 
	 
	 	 	 	 
	Article 4 Client Responsibilities 
	 	 	5	 
	 
	 	 	 	 
	4.1 Client’s Representative 
	 	 	5	 
	4.2 Client’s Requirements 
	 	 	6	 
	4.3 Other Information 
	 	 	6	 
	4.4 Access to Property 
	 	 	6	 
	4.5 Review of Documents 
	 	 	6	 
	4.6 Consents, Approvals, Licenses, and Permits 
	 	 	6	 
	4.7 Bids
	 	 	6	 
	4.8 Other Services 
	 	 	6	 
	4.9 Services Outside Scope of Engineer’s Services 
	 	 	6	 
	4.10 Deviation from Design 
	 	 	6	 
	4.11 Developments Affecting Scope or Timing of Services 
	 	 	7	 
	 
	 	 	 	 
	Article 5 Compensation and Payment 
	 	 	7	 
	 
	 	 	 	 
	5.1 Compensation 
	 	 	7	 
	5.2 Reimbursement of Engineer Expenses 
	 	 	7	 
	5.2 Reimbursement of Subcontractor Expenses 
	 	 	7	 
	5.4 Fees for Work Outside Scope of Services 
	 	 	7	 
	5.5 Collection of Unpaid Amounts 
	 	 	8	 
	5.6 Fee Schedule and Reimbursable Rate Schedule Subject to Change 
	 	 	8	 
	5.7 Invoices 
	 	 	8	 
	5.8 Payment 
	 	 	8	 
	5.9 Late Payment and Interest 
	 	 	8	 
	5.10 Suspension for Failure to Pay 
	 	 	8	 






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Table of contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	5.11 Payment 
	 	 	8	 
	5.12 Withholding Payments 
	 	 	8	 
	5.13 Purchase Orders 
	 	 	8	 
	5.14 Changes in Project
	 	 	8	 
	 
	 	 	 	 
	Article 6 Construction Cost And Cost Estimates 
	 	 	8	 
	 
	 	 	 	 
	6.1 Cost Estimates 
	 	 	8	 
	 
	 	 	 	 
	Article 7 Termination 
	 	 	9	 
	 
	 	 	 	 
	7.1 Termination Upon Default
	 	 	9	 
	7.2 Termination Upon Abandonment of Plant
	 	 	9	 
	 
	 	 	 	 
	Article 8 Ownership of Work Product 
	 	 	9	 
	 
	 	 	 	 
	8.1 Work Product
	 	 	9	 
	8.2 Copies Provided to Client
	 	 	9	 
	8.3 Prohibited Use of Work Product
	 	 	9	 
	8.4 Derogation of Engineer’s Rights to Work Product
	 	 	9	 
	 
	 	 	 	 
	Article 9 Successors and Assigns
	 	 	10	 
	 
	 	 	 	 
	9.1 Successors
	 	 	10	 
	9.2 Written Consent Required
	 	 	10	 
	9.3 No Third-Party Beneficiaries
	 	 	10	 
	 
	 	 	 	 
	Article 10 Warranty 
	 	 	10	 
	 
	 	 	 	 
	10.1 No Warranty Extended
	 	 	10	 
	10.2 No Responsibility for Construction
	 	 	10	 
	 
	Article 11 Indemnification 
	 	 	10	 
	 
	 	 	 	 
	11.1 Engineer’s Indemnification
	 	 	10	 
	11.2 Client’s Indemnification
	 	 	11	 
	11.3 Hazardous Materials Indemnification
	 	 	11	 
	 
	Article 12 Dispute Resolution 
	 	 	11	 
	 
	 	 	 	 
	12.1 Arbitration
	 	 	11	 
	 
	 	 	 	 
	Article 13 Confidentiality 
	 	 	12	 
	 
	 	 	 	 
	13.1 Non-Disclosure Obligation
	 	 	12	 
	13.2 Publicity and Advertising
	 	 	12	 
	13.3 Term of Obligation
	 	 	12	 
	 
	 	 	 	 
	Article 14 Miscellaneous
	 	 	12	 
	 
	 	 	 	 
	14.1 Governing Law
	 	 	12	 
	14.2 Severability
	 	 	12	 
	14.3 No Waiver
	 	 	12	 






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Table of Contents

(continued)




	 	 	 	 	 
	 	 	Page	 
	14.4 Captions and Headings 
	 	 	13	 
	14.5 Engineer’s Accounting Records 
	 	 	13	 
	14.6 Counterparts 
	 	 	13	 
	14.7 Survival 
	 	 	13	 
	14.8 No Privity with Client’s Contractors 
	 	 	13	 
	14.9 Amendments 
	 	 	13	 
	14.10 Entire Agreement
	 	 	13	 
	14.11 Notice 
	 	 	13	 
	14.12 Extent of Agreement 
	 	 	14	 
	14.13 Subrogation Waiver 
	 	 	14	 






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PHASE I AND PHASE II




ENGINEERING SERVICES AGREEMENT




     THIS PHASE I AND PHASE II ENGINEERING SERVICES AGREEMENT (the “Agreement”) is made as
of January 18, 2006, (the “Effective Date”) by and between E-Energy Adams, LLC, a Nebraska
Limited Liability Company (the “Client”) and Fagen Engineering, Inc. 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 50 million gallons per year dry grind ethanol production
facility to be located in Adams, NE (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 on such 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:




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





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




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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 Deliverables will mean the Client’s Deliverable obligations pursuant to Exhibit C attached
to this Agreement..



Phase I Design Package will have the meaning given to such term in Section 3.2.



Phase II Deliverables will mean the Client’s deliverable obligations pursuant to Exhibit C



Phase II Design Package will have the meaning given to such term in Section 3.4 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.




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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 Phase I Design Package and Phase II Design Package
engineering services necessary to facilitate Client’s completion of the Phase I and Phase II Site
work required of Client prior to the issuance of a Notice to Proceed pursuant to the Design-Build
Agreement (collectively, the “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.
ii. 	 	Used for Land Disturbance Permitting

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.




     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 Phase I Deliverables, however, this will be
no sooner than March 26, 2006.



     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





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	 	c)

d)

e)

f)

g)

h)

i)

j)	 	Site Grading and Drainage Drawing (Final Interior Plant
Grading)


 Roadway Alignment


Utility Layout (Fire Loop)


Utility Layout (Potable Water)


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


Utility Layout (Sanitary Sewer)


Utility Layout (Utility Water Blowdown)


Utility Layout (Natural Gas)






	 	i.	 	Fagen Engineering provides a preferred routing through the
Site, line size and pipe specifications are typically provided by the gas supplier.






	 	k)	 	Geometric Layout (For Project Control Verification)
	 
	 	l)	 	Site Utility Piping Tables Drawing

	 
	 	m)	 	Tank Farm Layout Drawing
	 
	 	n)	 	Tank Farm Details Drawing
	 
	 	o)	 	Sections and Details Drawing (If required)
	 
	 	p)	 	Miscellaneous Details Drawing (If required)




A telephone conference call for a Phase 2 pre-bid meeting will be provided upon Client’s request.




     3.5 Delivery of Phase II Design Package. Engineer shall deliver the completed Phase II Design
Package no later than 60 days after the receipt of all Phase II Deliverables.



     3.6 Delays. The Parties agree that Engineer shall not be responsible for delays in providing
the Services under this Agreement due to factors beyond Engineer’s control.



     3.7 Utility Routing and Design Services Limited. The Parties agree that Engineer shall provide
the routing and design for the utilities necessary for the Plant only within the Plant property
line and up to the Plant property line, and that, for purposes of this Agreement, Engineer assumes
a tie-in point to a city utility. The Parties agree that, if there is no city tie-in point,
Engineer will route the utilities to the Plant property line and stop. Any special tie-in
requirements necessary to connect the utilities at the Plant property line are not included in the
compensation or the scope of this Agreement and shall only be designed and engineered by Engineer
as change in the Project which affects the Services hereunder.



Article 4




Client Responsibilities




     4.1 Client’s Representative. Client shall, prior to the commencement of Services by Engineer,
name a representative (“Client’s Representative”) with authority to receive
information and transmit instructions for Client. Client’s Representative shall be vested with
authority to act on behalf of Client and Engineer shall be entitled to rely on Client’s
Representative’s communications with regard to the Services.



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January 18, 2006




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     4.2 Client’s Requirements. Client shall, prior to the commencement of Services by Engineer,
provide Engineer with Client’s requirements for the Project, including objectives and constraints,
design and construction standards, bonding and insurance requirements, and contract forms.



     4.3 Other Information. Prior to the commencement of Services by Engineer, Client shall
provide Engineer with all other information available to Client and pertinent to the project and
the Services including, but not limited to, all items required pursuant to Exhibit C. The items
required by Client pursuant to this Section 4.3 shall be furnished at Client’s expense, and
Engineer shall be entitled to rely upon the accuracy and completeness thereof.



     4.4 Access to Property. Prior to the commencement of Services and as necessary during the
performance of Services, Client shall arrange for access by Engineer upon public and private
property, as required for the performance of the Services under this Agreement



     4.5 Review of Documents. As related to the performance of Services hereunder, Client shall
examine documents presented by Engineer, obtain legal and other advice as Client deems
appropriate, and render written decisions within reasonable time. The items required by Client
pursuant to this Section 4.5 shall be furnished at Client’s expense, and Engineer shall be
entitled to rely upon the accuracy and completeness thereof.



     4.6 Consents, Approvals, Licenses and Permits. Prior to the commencement of Services and as
necessary during the performance of the Services, Client shall obtain all consents, approvals,
licenses, permits, and other Governmental Approvals necessary for the Project and for the
performance of the Services. The items required by Client pursuant to this Section 4.6 shall be
furnished at Client’s expense, and Engineer shall be entitled to rely upon the accuracy and
completeness thereof.



     4.7 Bids. Client shall advertise for and open bids when scheduled.



     4.8 Other Services. Client shall furnish all legal, accounting and insurance counseling
services as may be necessary at any time for the Services, including auditing services the Client
may require to verify the monthly invoices or to ascertain how or for what purposes the Engineer
and/or Subcontractors have used the money paid by or on behalf of the Client.



     4.9 Service Outside Scope of Engineer’s Services. Client shall, at its own expense, as
necessary for the performance and completions of the Services, provide any additional services
necessary for the Project that are outside scope of the Services provided by Engineer under this
Agreement. Engineer shall be entitled to rely upon, as applicable, the completeness and accuracy
of such additional services.



     4.10 Deviation from Design. Client shall indemnify and hold harmless Engineer, its
employees, its agents, its affiliates, and any other persons or entities within its control or for
whom Engineer would otherwise be responsible (“Engineer Responsible Parties”) against
claims arising out of Engineer’s design, if there has been, in the completion of the Phase I and
the Phase II Site work required of Client prior to the issuance of a Notice to Proceed pursuant to
the



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January 18, 2006




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Design-Build Agreement, a failure to follow Engineer’s recommendation and such deviation or
failure caused the claims.




     4.11 Developments Affecting Scope or Timing of Services. Client shall promptly notify
Engineer, in writing, when Client learns of contractor error or any development that affects scope
or timing of Engineer’s Services.



Article 5




Compensation and Payment




     5.1 Compensation. In consideration of its performance of the Services, Client shall pay
Engineer for Engineer’s time in the performance of the Services at a fixed fee of $92,500 (“fixed
fee”) as compensation. Engineer’s compensation under this Section 5.1 shall be pursuant to the
Fee schedule attached hereto as Exhibit A, as such schedule may be modified form time to time.
The full amount of compensation paid by Client under this Section 5.1 shall be included in and
credited to the Design-Build Agreement’s contract price if entered into upon payment in full by
Client.



     5.2 Reimbursement of Engineer Expenses. In addition to the fixed fee in 5.1, Client shall
reimburse Engineer for its expenses related to the performance of the Services in accordance with
Engineer’s current reimbursable expense schedule attached hereto Exhibit B.



     5.3 Reimbursement of Subcontractor Expenses.



          5.3.1 Subcontractor charges related to time spent in the performance of the Services shall
not be marked-up by Engineer. Client shall reimburse Engineer for costs related to Subcontractors’
time in accordance with the Subcontractors’ invoices for the work.




          5.3.2 Subcontractor reimbursable expenses will be marked up in accordance with the current
reimbursable schedule attached hereto as Exhibit B.




     5.4 Fees for Work Outside Scope of Services. Fees for all work outside the scope of
Engineer’s responsibilities described in Article 3, including change order work, shall be computed
in accordance with Engineer’s current fee schedules, attached hereto as Exhibits A and B, as such
schedules may be revised form time to time, unless otherwise agreed to in writing.



     5.5 Collection of Unpaid Amounts. If any amount due is not paid in accordance with this
Agreement and Engineer must collect that amount, Engineer shall be entitled to recover, in
addition to the amount due, the cost of collection, including reasonable attorney’s fees in
connection with those collection efforts.



     5.6 Reimbursement Schedule Subject to Change. Engineer’s reimbursement schedule and
reimbursable expense schedule attached hereto as Exhibits A and B are subject to change on
January 1 of each year.



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     5.7 Invoices. Engineer shall submit a monthly invoice (“Monthly Invoice”) for
Services provided and for reimbursable expenses incurred by Engineer and any Subcontractors.



     5.8 Payment. Within thirty (30) days after Client’s receipt of each Monthly Invoice,
Client shall pay Engineer all amounts due.



     5.9 Late Payment and Interest. If Client fails to make payment within thirty (30) days
after receipt of Monthly Invoice, interest at maximum legal rate or at an annual rate of 18%,
whichever is less, shall accrue



     5.10 Suspension for Failure to Pay. If Client fails to make payment within thirty (30) days
after receipt of Monthly Invoice, Engineer may, at its option, after giving seven (7) days’ written
notice, suspend services until it all amounts due to Engineer by Client have been paid in full.



     5.11 Payments from Lawful Sources. Client shall provide for payment from one or more lawful
source of all sums to be paid Engineer.



     5.12 Withholding Payments. Engineer’s compensation shall not be reduced on account of any
amounts withheld from payment to Subcontractors.



     5.13 Purchase Orders. If Client issues a purchase order or other document to initiate the
commencement of Services hereunder, it is expressly agreed that any terms and conditions appearing
thereon shall have no application and only the provisions of this Agreement shall apply.



     5.14 Changes in Project. If Client requests changes in the project which affect the Services,
compensation for and time of performance of Engineer’s services shall be adjusted appropriately.



Article 6




Construction Cost and Cost Estimates




     6.1 Cost Estimates. Client and Engineer acknowledge that Engineer has no control over cost of
labor, materials, equipment of services furnished by others, over contractors’ methods of
determining prices, or other competitive bidding or market conditions and that Engineer’s estimates
of Project construction cost will be made on the basis of its employees‘ experience and
qualifications and will represent Engineer’s employees‘ best judgment as experienced and
qualified professionals, familiar with the construction industry. Engineer does not guarantee that
proposal, bids, or actual construction cost will not vary from its estimates of Project cost and
Client acknowledges the same.



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Article 7




Termination




     7.1 Termination Upon Default. Either party may terminate this Agreement upon twenty (20)
days’ written notice if the non-terminating party has defaulted through no fault of the
terminating party.



     7.2 Termination Upon Abandonment of Project. Client may terminate Engineer’s obligation to
provide further services upon twenty (20) days’ written notice if Client abandons development of
the Plant. In such event, all past due amounts for services rendered (including Subcontractor’s
fees, if any) and any unpaid reimbursable expenses shall be immediately due and payable by Client.



Article 8




Ownership of Work Product




     8.1 Work Product. All tangible items prepared by Engineer, including but not limited to all
drawings, specifications, calculations, data, notes and other materials and documents, including
electronic data furnished by Engineer to Client and to Subcontractors under this Agreement
(“Work Product”) shall be instruments of service, and Engineer shall retain the ownership
and property interests therein, including the copyrights thereto.



     8.2 Copies Provided to Client. Client may retain copies of Work Product for reference;
provided, however, that Client may not make copies of the Work Product available without
Engineer’s written permission, and, granted such permission, may only do so to the extent the use
of such copies of the Work Product directly pertains to the Services, the Plant, or the
construction thereof. Pursuant to Section 8.1 of this Agreement, Engineer retains ownership of and
property interests in any Work Product made available and/or copied.



     8.3 Prohibited Use of Work Product. Reuse of the Work Product on any another Project without
Engineer’s written consent is prohibited. Client shall indemnify and hold harmless Engineer
Responsible Parties against claims resulting from such prohibited reuse. Said items are not
intended to be suitable for completion of this Project by others.



     8.4 Derogation of Engineer’s Rights to Work Product. Submittal or distribution of Work
Product in connection with the performance and completion of the Services and the construction
of the project does not constitute publication in derogation of Engineer’s rights and does not
in any way diminish Engineer’s Work Product rights established herein.



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Article 9




Successors and Assigns




     9.1 Successors. The parties intend that the provisions of this Agreement are binding upon
the Parties, their employees, agents, heirs, successors and assigns.



     9.2 Written Consent Required. Neither party shall assign, sublet, or transfer any interest in
this Agreement without written consent of the other; provided, however, that Engineer may employ
such Subcontractors as it may deem appropriate and may transfer or assign any interest in this
Agreement or the Work Product to Design-Builder without consent of Client.



     9.3 No Third-Party Beneficiaries. None of the provisions of this Agreement will be for the
benefit of or enforceable by any person other than the Parties hereto, their successors and
permitted assigns and legal representatives.



Article 10



Warranty



     10.1 No Warranty Extended. Engineer shall use reasonable care to reflect requirements of
all Applicable Laws, rules, or regulations of which Engineer has knowledge or about which Client
specifically advises in writing, which are in effect on the date of this Agreement. ENGINEER
INTENDS TO RENDER SERVICES IN ACCORDANCE WITH GENERALLY ACCEPTED PROFESSIONAL STANDARDS, BUT NO
OTHER WARRANTY IS EXTENDED, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH SUCH SERVICES. Client’s
rights and remedies in this Agreement are exclusive.



     10.2 No Responsibility for Construction. Engineer shall not be responsible for construction
of the Plant, contractors’ construction means, methods, techniques, sequences, or procedures, or
for contractors’ safety precautions and programs, or for contractors’ failure according to
contract documents.



Article 11




Indemnification




     11.1 Engineer’s Indemnification. To the fullest extent permitted by law, Engineer shall
indemnify and hold harmless Client, Client’s officers, directors, partners, employees, and agents
from and against any and all claims for bodily injury and for damage to tangible property caused
solely by the negligent acts or omissions of Engineer or Engineer Responsible Parties and
Engineer’s Engineers in the performance and furnishing of Engineer’s services under this
Agreement. Any indemnification shall be limited to the terms and amounts of coverage of the
Engineer’s insurance policies.



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     11.2 Client’s Indemnification. To the fullest extent permitted by law, Client shall
indemnify and hold harmless Engineer, Engineer’s officers, directors, partners, employees, and
agents and Engineer’s Engineers from and against any and all claims for bodily injury and for
damage to tangible property caused solely by the negligent acts of omission of Client or
Client’s officers, directors, partners, employees, agents, and Client’s Engineers with respect
to this Agreement on the Project.



     11.3 Hazardous Materials Indemnification. In addition to the indemnity provided under this
section, and to the fullest extent permitted by law, Client shall indemnify and hold harmless
Engineer and its officers, directors, partners, employees, and agents and Engineer’s Engineers
from and against all claims, costs, losses, and damages (including but not limited to all fees and
charges of engineers, architects, attorneys, and other professionals and all court of arbitration
or other dispute resolution costs) caused by, arising out of, or relating to the presence,
discharge, release, or escape of asbestos, PCBs, petroleum, hazardous waste, or radioactive
materials at, on, under, or from the Site.



Article 12




Dispute Resolution




     12.1 Arbitration. In an effort to resolve any conflicts that arise out of or relate to this
Agreement, the Client and the Engineer agree that all disputes shall be submitted first to
nonbinding mediation. If mediation does not resolve the conflicts, the controversy shall be
decided by final and binding arbitration conducted in Minneapolis, Minnesota in accordance with
the Construction Industry Arbitration Rules of the American Arbitration Association then in
effect, unless the Parties mutually agree otherwise.


The award of the arbitrator(s) shall be final and binding upon the parties without the right of
appeal to the courts. Judgment may be entered upon it in accordance with Applicable Law by any
court having jurisdiction thereof.



Engineer and Client expressly agree that any arbitration pursuant to this Section 12.1 may be
joined or consolidated with any arbitration involving any other person or entity (i) necessary to
resolve the claim, dispute or controversy, or (ii) substantially involved in or affected by such
claim, dispute or controversy. Both Engineer and Client will include appropriate provisions in all
contracts they execute with other parties in connection with the Services to require such joinder
or consolidation.



The prevailing party in any arbitration, or any other final, binding dispute proceeding upon which
the parties may agree, shall be entitled to recover from the other party reasonable attorneys’
fees and expenses incurred by the prevailing party.




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Article 13




Confidentiality




     13.1 Non-Disclosure Obligation. Except as required by court order, subpoena, or Applicable
Law, neither Party shall disclose to third parties any confidential or proprietary information
regarding the other Party’s business affairs, finances, technology, processes, plans or
installations, product information, know-how, or other information that is received from the other
Party pursuant to this Agreement or the Parties’ relationship prior thereto or is developed
pursuant to this Agreement, without the express written consent of the other Party, which consent
shall not be unreasonably withheld. The Parties shall at all times use their respective reasonable
efforts to keep all information regarding the terms and conditions of this Agreement confidential
and shall disclose such information to third Persons only as reasonably required for the
permitting of the Project; financing the development, construction, ownership, operation and
maintenance of the Plant; or as reasonably required by either Party for performing its obligations
hereunder and if prior to such disclosure, the disclosing Party informs such third Persons of the
existence of this confidentiality obligation and only if such third Persons agree to maintain the
confidentiality of any information received. This Article 13 shall not apply to information that
was already in the possession of one Party prior to receipt from the other, that is now or
hereafter becomes a part of the public domain through no fault of the Party wishing to disclose,
or that corresponds in substance to information heretofore or hereafter furnished by third parties
without restriction on disclosure.



     13.2 Publicity and Advertising. Neither Client nor Engineer shall make or permit any of their
subcontractors, agents, or vendors to make any external announcement or publication, release any
photographs or information concerning the Project or any part thereof, or make any other type of
communication to any member of the public, press, business entity, or any official body which
names the other Party unless prior written consent is obtained from the other Party, which consent
shall not be unreasonably withheld.



     13.3 Term of Obligation. The confidentiality obligations of the Parties pursuant to this
Article 13 shall survive the expiration or other termination of this Agreement.



Article 14




Miscellaneous




     14.1 Governing Law. This Agreement shall be governed by and construed and enforced in
accordance with, the substantive laws of the state of Minnesota, without regard to the conflict of
laws provisions thereof.



     14.2 Severability. If any provision or any part of a provision of the Agreement shall be
finally determined to be superseded, invalid, illegal, or otherwise unenforceable pursuant to any
applicable Legal Requirements, such determination shall not impair or otherwise affect the



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validity, legality, or enforceability of the remaining provision or parts of the provision of
the Agreement, which shall remain in full force and effect as if the unenforceable provision or
part were deleted.




     14.3 No Waiver. The failure of either Engineer or Client to insist, in any one or more
instances, on the performance of any of the obligations required by the other under this Agreement
shall not be construed as a waiver or relinquishment of such obligation or right with respect to
future performance.



     14.4 Captions and Headings. The table of contents and the headings used in this Agreement
are for ease of reference only and shall not in any way be construed to limit, define, extend,
describe, alter, or otherwise affect the scope or the meaning of any provision of this Agreement.



     14.5 Engineer’s Accounting Records. Records of Engineer’s personnel time, reimbursable
expenses, and accounts between parties shall be maintained on a generally recognized accounting
basis.



     14.6 Counterparts. This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together shall be deemed one and the same Agreement,
and may be executed and delivered by facsimile signature, which shall be considered an original.



     14.7 Survival. Notwithstanding any provisions herein to the contrary, the Work Product
provisions set forth in Article 8 and the indemnity obligations set forth herein shall survive (in
full force) the expiration or termination of this Agreement, and shall continue to apply to the
Parties to this Agreement even after termination of this Agreement or the transfer of such Party’s
interest in this Agreement.



     14.8 No Privity with Client’s Contractors. Nothing in this Agreement is intended or deemed to
create any legal or contractual relationship between Engineer and any Client contractor or
subcontractor retained to perform the Phase I and Phase II Site work required of Client prior to
the issuance of a Notice to Proceed pursuant to the Design-Build Agreement.



     14.9 Amendments. This Agreement may not be changed, altered, or amended in any way except in
writing signed by a duly authorized representative of each Party.



     14.10 Entire Agreement. This Agreement consists of the terms and conditions set forth
herein, as well as the Exhibits hereto, which are incorporated by reference herein and made a part
hereof. This Agreement sets forth the full and complete understanding of the Parties as of the
Effective Date with respect to the subject matter hereof.



     14.11 Notice. Whenever the Agreement requires that notice be provided to a Party, notice
shall be delivered in writing to such party at the address listed below. Notice will be deemed to
have been validly given if delivered (i) in person to the individual intended to receive such
notice, (ii) by registered or by certified mail, postage prepaid to the address indicated in the



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Agreement within four (4) days after being sent, or (iii) by facsimile, by the time stated in
a machine-generated confirmation that notice was received at the facsimile number of the intended
recipient.




If to Engineer, to:



Fagen Engineering LLC 501

W. Highway 212

P. O. Box 159

Granite Falls, MN 56241

Attention: John Austgen

Fax: (320) 564-4861



with a copy to:



Fagen, Inc.

501 W. Highway 212

P. O. Box 159

Granite Falls, MN 56241

Attention: Bruce Langseth

Fax: (320) 564-3278



If to Client, to:



E-Energy Adams, LLC

Mr. Jack L. Alderman

510 Main Street

Adams, NE 68301




     14.12 Extent of Agreement. This Agreement and the Exhibits incorporated therein represent the
entire agreement between the Parties and may be amended only by written instrument signed by both
Parties.



     14.13 Subrogation Waiver. The Parties waive all rights against each other, and against
contractors, Engineers, agents, and employees of the other for damages covered by any property
insurance during construction, and each shall require similar waivers from their contractors,
Engineers, and agents.



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IN WITNESS WHEREOF, the Parties hereto have caused their names to be hereunto subscribed by their
officers thereunto duly authorized, intending thereby that this Agreement shall be effective as of
this January 18, 2006.




	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	E-ENERGY ADAMS	 	 	 	FAGEN ENGINEERING LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	/s/ Jack Alderman
	 	 	 	By:
	 	/s/ John R. Austgen	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title: 

	President
	 	 	 	Title:
	 	Sr. Vice President	 	 
	 
	 	 
	 	 	 	 	 	 
	 	 
	Address for giving notices:	 	 	 	Address for giving notices:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	510 Main Street	 	 	 	501 West Highway 212	 	 
	Adams, NE 68301	 	 	 	PO Box 159	 	 
	 	 	 	 	 	 	Granite Falls, MN 56241	 	 






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