exv10w14



 




Exhibit
10.14




STANDARD FORM OF AGREEMENT

BETWEEN OWNER AND ENGINEER

FOR

PROFESSIONAL SERVICES



This AGREEMENT is made by and between E ENERGY ADAMS, LLC., hereinafter called OWNER, and ANTIOCH
International, Inc., hereinafter called ENGINEER, for professional services not presently specified
under any other agreement between OWNER and ENGINEER. ENGINEER agrees to provide OWNER with
requested professional services more specifically described as follows:




     Spur Track design for a proposed ethanol plant at Adams, NE


The following Attachments are hereby made a part of the AGREEMENT:




	 	 	 	 	 	 	 
	X	 	Standard Terms and Conditions
	X

	 	Exhibit A:
	 	ENGINEER’S Services	 	 
	X

	 	Exhibit B:
	 	OWNER’S Responsibilities	 	 
	X

	 	Exhibit C:
	 	Payments to ENGINEER for Services and Reimbursable	 	 
	 

	 	 	 	Expenses	 	 
	 

	 	Exhibit G:
	 	Insurance	 	 
	X

	 	Attachment 1:
	 	Standard Hourly Rates	 	 





By signing this AGREEMENT, OWNER acknowledges that it has read and fully understands this AGREEMENT
and all attachments thereto. OWNER further agrees to pay ENGINEER for services described herein
upon receipt of invoice.



IN WITNESS WHEREOF, the parties hereto have made and executed this AGREEMENT.




	 	 	 	 	 	 	 	 	 	 	 
	OWNER
	 	 	 	ENGINEER
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	E ENERGY ADAMS, LLC	 	 	 	ANTIOC International, Inc.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	BY:

	 	/s/ Jack L. Alderman
	 	 	 	BY:
	 	/s/ William J. Jones	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	TITLE: President	 	 	 	TITLE: President	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	EFFECTIVE DATE: June 27, 2005	 	 	 	DATE: May 17, 2005	 	 






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	ADDRESS:	 	 	 	ADDRESS:	 	 
	 	 	105 E. Veterans St.	 	 	 	2540 South 221st Circle
	 	 	Tomah, WI 54660	 	 	 	Elkhorn, NE 68022
	 	 	Telephone: 608-372-5755	 	 	 	Telephone: 402-289-2217
	 	 	OWNER’S Contact: Jack Alderman	 	 	 	ENGINEER’S Contact:
	 

	 	 	 	 	 	 	 	William J. Jones
	 	 	 	 	 	 	Job No. 98-124





PLEASE SIGN AND RETURN ONE ORIGINAL TO CONSULTANT




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EXHIBIT A — ENGINEER’S Services



Section I of the Standard Terms and Conditions is amended and supplemented to include the following
agreement of the parties. ENGINEER shall provide Basic and Additional Services as set forth below.




PART 1 — BASIC SERVICES




Study and Report Phase




ENGINEER shall:





	1.	 	Consult with OWNER to define and clarify OWNER’S requirements for the Project and available
data.
	 
	2.	 	Advise OWNER as to the necessity of OWNER’S providing data or services which are not part of
ENGINEER’S Basic Services, and assist OWNER in obtaining such data and services.
	 
	3.	 	Identify, consult with, and analyze requirements of governmental authorities having
jurisdiction to approve the portions of the Project designed or specified by ENGINEER.
	 
	4.	 	Identify and evaluate up to three alternate solutions available to OWNER and, after
consultation with OWNER, recommend to OWNER those solutions which in ENGINEER’S judgment meet
OWNER’S requirements for the Project.
	 
	5.	 	Prepare a report (the “Report”) which will, as appropriate, contain schematic layouts,
sketches and conceptual design criteria with appropriate exhibits to indicate the agreed-to
requirements, considerations involved, and those alternate solutions available to OWNER which
ENGINEER recommends. This Report will be accompanied by ENGINEER’S opinion of Total Project
Costs for each solution which is so recommended for the Project with each component separately
itemized, including the following, which will be separately itemized: opinion of probable
Construction Cost, allowances for contingencies and for the estimated total costs of design,
professional, and related services provided by ENGINEER and, on the basis of information
furnished by OWNER, allowances for other items and services included within the definition of
Total Project Costs.
	 
	6.	 	Perform or provide the following additional Study and Report Phase tasks or deliverables:






	 	•	 	Prepare a conceptual track plan constructible in stages to accommodate the initial
50 MMG plant design as well as the future track for plant expansion to 100 MMG.
	 
	 	•	 	Determine the service interval by the main line railroad.
	 
	 	•	 	The initial track construction concept for a 50 MMG ethanol plant to be compatible
with the service interval.
	 
	 	•	 	Determine a track config. ration providing traffic ingress/egress to the plant site





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	 	 	 	acceptable to the mainline railroad.
	 
	 	•	 	Determine current mainline railroad traffic.
	 
	 	•	 	Coordinate track concepts with the mainline railroad, ethanol plant design
consultant, state and local jurisdictions, if any.






	7.	 	Furnish two review copies of the Report to OWNER within 14 days of authorization to proceed
with the Study and Report Phase.
	 
	8.	 	Revise the Report in response to OWNER’S and other parties’ comments, as appropriate, and
furnish two final copies of the revised Report to the OWNER within 7 days after completion of
reviewing it with OWNER.




ENGINEER’S services under the Study and Report Phase will be considered complete on the date when
the final copies of the revised Report have been delivered to OWNER




Preliminary Design Phase- Grading Work



After acceptance by OWNER of the Report, selection by OWNER of a recommended solution and
indication of any specific modifications or changes in the scope, extent, character, or design
requirements of the Project desired by OWNER, and upon written authorization from OWNER, ENGINEER
shall:





	1.	 	On the basis of the above acceptance, selection, and authorization, prepare Preliminary
Design Phase documents consisting of design criteria, preliminary drawings, and written
descriptions of the Project.
	 
	2.	 	OWNER to provide necessary field surveys, bench marks, topographic and utility mapping for
design purposes. Utility mapping will be based upon topographic surveys and information
obtained from utility owners. OWNER shall accomplish field and topographic surveys, and
prepare a topographic map of surface features and ground contours in the project area.
	 
	3.	 	Advise OWNER if additional reports, data, information, or services of the types described in
Exhibit B are necessary and assist OWNER in obtaining such reports, data, information, or
services.
	 
	4.	 	Based on the information contained in the Preliminary Design Phase documents, submit an
opinion of probable Construction Cost known to ENGINEER.
	 
	5.	 	Perform or provide the following Preliminary Design Phase tasks or deliverables: ENGINEER
shall refine the conceptual track work plans, and prepare plans in sufficient detail to
accomplish the grading work, generally described as follows:





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GRADING WORK:





	 	•	 	Subgrade geometry & stationing based on the project coordinate system.
	 
	 	•	 	Match line between railroad subgrade and plant subgrade.
	 
	 	•	 	Top of rail profile.
	 
	 	•	 	Grading contour plan.
	 
	 	•	 	Grading sections at 100’ intervals.
	 
	 	•	 	Special ditching elevations.
	 
	 	•	 	Locations of service roads.
	 
	 	•	 	Typical grading cross sections
	 
	 	•	 	Subgrade staking report.
	 
	 	•	 	Culvert plans showing length, flowline elevations & end treatments.
	 
	 	•	 	Yard track drainage inlets and piping plan.
	 
	 	•	 	Erosion control plan
	 
	 	•	 	Subballast plan
	 






	6.	 	Deliverables: drawings and notes indicating the general character of work to be performed;
preliminary cost estimate and identification of unresolved final design features. ENGINEER
shall not be responsible for those portions of the Work performed by others.
	 
	7.	 	Furnish two sets of Preliminary Design Phase documents to, and review them with, OWNER or
OWNER’S Consultant within 30 days after authorization to proceed with the Preliminary Design
Phase. OWNER’S Consultant to prepare the Grading Work bidding documents and construction
specifications.
	 
	8.	 	Revise Preliminary Design Phase documents in response to OWNER’S and other parties’ comments,
as appropriate, and furnish two final copies of the revised Report to the OWNER within 7 days
after completion of reviewing it with OWNER.




ENGINEER’S services under the Preliminary Design Phase will be considered complete on the date when
revised copies of the Preliminary Design Phase documents have been delivered to OWNER.




Final Design Phase



After acceptance by OWNER of the Preliminary Design Phase documents and revised opinion of

probable Construction Cost as determined in the Preliminary Design Phase, but subject to any
OWNER-directed modifications or changes in the scope, extent, character, or design requirements of
or for the Project, and upon written authorization from OWNER, ENGINEER shall:





	1.	 	On the basis of the above acceptance, direction, and authorization, prepare final Drawings
and Specifications indicating the scope, extent, and character of the Work to be performed and
furnished by Contractor.






	2.	 	Provide technical criteria, written descriptions, and design data for OWNER’S use in filing





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	 	 	applications for permits from or approvals of governmental authorities having jurisdiction to
review or approve the final design of the Project and assist OWNER in consultations with
appropriate authorities.
	 
	3.	 	Advise OWNER of any adjustments to the opinion of probable Construction Cost and any
adjustments to Total Project Costs known to ENGINEER.
	 
	4.	 	Perform or provide the following Final Design Phase tasks or deliverables:






	 	•	 	Track geometry & stationing based on the project coordinate system for the initial
50 MMG & the future 100 MMG track layouts.
	 
	 	•	 	Railroad mile posts & 13’ clearance points for mainline turnouts.
	 
	 	•	 	Location & size of existing & new turnouts, derails & bumping posts.
	 
	 	•	 	Show present & proposed buildings including unloading doors, ramps and loadouts
from information provided by OWNER.
	 
	 	•	 	Horizontal & vertical clearances.
	 
	 	•	 	Loadout sequence.
	 
	 	•	 	Location of overhead & buried utilities with dimension to top of rail.
	 
	 	•	 	Location of fencing & gates.
	 
	 	•	 	Location, length & type of grade crossings.
	 
	 	•	 	Traffic control & signing plan for grade crossings.
	 
	 	•	 	Typical track cross section and walkway details
	 
	 	•	 	Construction sequencing plan.
	 
	 	•	 	Track construction notes & details.
	 
	 	•	 	Track construction specifications.
	 
	 	•	 	Prepare track exhibits as attachments to the mainline railroad industrial track
contract.
	 
	 	•	 	Final Design plan check with OWNER at project site, if requested.






	5.	 	Final Design Phase documents: drawings, notes and specifications indicating the specific
character of work to be performed; final opinion of cost; and estimated construction
quantities in sufficient detail to construct the planned facility. Final plans shall meet the
requirements of the mainline railroad and other entities, if any, having jurisdiction over the
planned facility. ENGINEER shall not be responsible for those portions of the Work performed
by others.
	 
	6.	 	Furnish two sets of Final Design Phase documents to and review them with OWNER within 30 days
after authorization to proceed with the Final Design Phase.
	 
	7.	 	Revise the Report in response to OWNER’S and other parties’ comments, as appropriate, and
furnish two final copies of the revised Report to the OWNER within 7 days after completion of
reviewing it with OWNER.




In the event that the Work designed or specified by ENGINEER is to be performed or furnished under
more than one prime contract, or if ENGINEER’S services are to be separately sequenced with the
work of one or more prime Contractors (such as in the case of fast-tracking), OWNER




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and ENGINEER shall, prior to commencement of the Final Design Phase, develop a schedule for
performance of ENGINEER’S services during the Final Design, Bidding or Negotiating, Construction,
and Post-Construction Phases in order to sequence and coordinate properly such services as are
applicable to the work under such separate prime contracts. This schedule is to be prepared and
included in or become as amendment to Exhibit A whether or not the work under such contracts is to
proceed concurrently. The number of prime contracts for Work designed or specified by ENGINEER upon
which the ENGINEER’S compensation has been established under this Agreement is one.



ENGINEER’S services under the Final Design Phase will be considered complete on the date when the
Final Design Phase documents have been delivered to OWNER.




PART 2 — ADDITIONAL SERVICES




Additional Services Requiring OWNER’S Authorization in Advance



If authorized in writing by OWNER, ENGINEER shall furnish or obtain from others Additional Services
of the types listed below. These services will be paid for by OWNER as indicated in Section 4 of
the Standard Terms and Conditions.





	1.	 	Preparation of applications and supporting documents (in addition to those furnished under
Basic Services) for private or governmental grants, loans or advances in connection with the
Project; preparation or review of environmental assessments and impact statements; review and
evaluation of the effects on the design requirements for the Project of any such statements
and documents prepared by others; and assistance in obtaining approvals of authorities having
jurisdiction over the anticipated environmental impact of the Project.
	 
	2.	 	Services to make measured drawings of or to investigate existing conditions or facilities, or
to verify the accuracy of drawings or other information furnished by OWNER.
	 
	3.	 	Services resulting from significant changes in the scope, extent, or character of the
portions of the Project designed or specified by ENGINEER or its design requirements
including, but not limited to, changes in size, complexity, OWNER’S schedule, character of
construction, or method of financing; and revising previously accepted studies, reports,
Drawings, Specifications, or Contract Documents when such revisions are required by changes in
Laws and Regulations enacted subsequent to the Effective Date of this Agreement or are due to
any other causes beyond ENGINEER’S control.
	 
	4.	 	Services resulting from Owner’s request to evaluate additional Study and Report Phase
alternative solutions beyond those previously identified.
	 
	5.	 	Services required as a result of OWNER’S providing incomplete or incorrect Project
information with respects to Exhibit B.
	 
	6.	 	Providing renderings or models for OWNER’S use.





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	7.	 	Undertaking investigations and studies including, but not limited to, detailed consideration
of operations, maintenance, and overhead expenses; the preparation of feasibility studies,
cash flow and economic evaluations, rate schedules, and appraisals; assistance in obtaining
financing for the Project; evaluating processes available for licensing, and assisting OWNER
in obtaining process licensing; detailed quantity surveys of materials, equipment, and labor;
and audits or inventories required in connection with construction performed by OWNER.
	 
	8.	 	Furnishing services of ENGINEER’S Consultants for other than Basic Services.
	 
	9.	 	Services attributable to more prime construction contracts than specified in the Final Design
Phase.
	 
	10.	 	Services during out-of-town travel required of ENGINEER other than for visits to the Site or
OWNER’S office.
	 
	11.	 	Preparing for, coordinating with, participating in and responding to structured independent
review processes, including, but not limited to, construction management, cost estimating,
project peer review, value engineering, and constructability review requested by OWNER; and
performing or furnishing services required to revise studies, reports, Drawings,
Specifications, or other Bidding Documents as a result of such review processes.
	 
	12.	 	Preparing additional Bidding Documents or Contract Documents for alternate bids or prices
requested by OWNER for the Work or a portion thereof.
	 
	13.	 	Determining the acceptability of substitute materials and equipment proposed during the
Bidding or Negotiating Phase when substitution prior to the award of contracts is allowed by
the Bidding Documents.
	 
	14.	 	Assistance in connection with Bid protests, rebidding, or renegotiating contracts for
construction, materials, equipment, or services, except when such assistance is required by
Exhibit F.
	 
	15.	 	Providing construction surveys and staking to enable Contractor to perform its work other
than as required under the Construction Phase, and any type of property surveys or related
engineering services needed for the transfer of interests in real property; and providing
other special field surveys.
	 
	16.	 	Providing Construction Phase services beyond the Contract Times set forth in Exhibit C.
	 
	17.	 	Providing assistance in resolving any Hazardous Environmental Condition in compliance with
current Laws and Regulations.
	 
	18.	 	Preparing and furnishing to OWNER Record Drawings showing appropriate record information
based on Project annotated record documents received from Contractor.





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	19.	 	Preparation of operation and maintenance manuals.
	 
	20.	 	Preparing to serve or serving as a consultant or witness for OWNER in any litigation,
arbitration or other dispute resolution process related to the Project.
	 
	21.	 	Providing more extensive services required to enable ENGINEER to issue notices or
certificates requested by OWNER under paragraph 6 of the Standard Terms and Conditions.
	 
	22.	 	Structural, mechanical, electrical, and geotechnical designs for bridges, box culverts,
unloading pits, buildings, elevator silos, and conveyors relating to existing or new
structures at or contiguous to the Site, or other services performed or furnished by ENGINEER
not otherwise provided for in this Agreement.





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EXHIBIT B — OWNER’S Responsibilities



Section 2 of the Standard Terms and Conditions is amended and supplemented to include the following
agreement of the parties.



In addition to other responsibilities of OWNER as set forth in this Agreement, OWNER shall:





	A.	 	Provide ENGINEER with all criteria and full information as to OWNER’S requirements for the
Project, including design objectives and constraints, space, capacity and performance
requirements, flexibility, and expandability, and any budgetary limitations; and furnish
copies of all design and construction standards which OWNER will require to be included in the
Drawings and Specifications; and furnish copies of OWNER’S standard forms, conditions, and
related documents for ENGINEER to include in the Bidding Documents, when applicable.
	 
	B.	 	Furnish to ENGINEER any other available information pertinent to the Project including
reports and data relative to previous designs, or investigation at or adjacent to the Site.
	 
	C.	 	Following ENGINEER’S assessment of initially-available Project information and data and
upon ENGINEER’S request, furnish or otherwise make available such additional Project related
information and data as is reasonably required to enable ENGINEER to complete its Basic and
Additional Services. Such additional information or data would generally include the
following:






	 	1.	 	Property descriptions.

	 
	 	2.	 	Zoning, deed, and other land use restrictions
	 
	 	3.	 	Property, boundary, easement, right-of-way, and other special surveys or data,
including establishing relevant reference points.
	 
	 	4.	 	Explorations and tests of subsurface conditions at or contiguous to the Site,
drawings of physical conditions in or relating to existing surface or subsurface
structures at or contiguous to the Site, or hydrographic surveys, with appropriate
professional interpretation thereof.
	 
	 	5.	 	Environmental assessments, audits, investigations and impact statements, and other
relevant environmental or cultural studies as to the Project, the Site, and adjacent
areas.
	 
	 	6.	 	Data or consultations as required for the Project but not otherwise identified in the
agreement or the Exhibits thereto.






	D.	 	Give prompt written notice to ENGINEER whenever OWNER observes or otherwise becomes aware
of a Hazardous Environmental Condition or of any other development that affects the scope or
time of performance of ENGINEER’S services, or any defect or nonconformance in ENGINEER’S
services or in the work of any Contractor.
	 
	E.	 	Authorize ENGINEER to provide Additional Services as set forth in Part 2 of Exhibit A of
the Agreement as required.





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	F.	 	Arrange for safe access to and make all provisions for ENGINEER to enter upon public and
private property as required for ENGINEER to perform services under the Agreement.
	 
	G.	 	Examine all alternate solutions, studies, reports, sketches, Drawings, Specifications,
proposals, and other documents presented by ENGINEER (including obtaining advice of an
attorney, insurance counselor, and other advisors or consultants as OWNER deems appropriate
with respect to such examination) and render in writing timely decisions pertaining thereto.
	 
	H.	 	Provide reviews, approvals, and permits from all governmental authorities having
jurisdiction to approve all phases of the Project designed or specified by ENGINEER and such
reviews, approvals, and consents from others as may be necessary for completion of each phase
of the Project.
	 
	I.	 	Provide, as required for the Project:






	 	1.	 	Accounting, bond and financial advisory, independent cost estimating, and insurance
counseling services.
	 
	 	2.	 	Legal services with regard to issues pertaining to the Project as OWNER requires,
Contractor raises, or ENGINEER reasonably requests.
	 
	 	3.	 	Such auditing services as OWNER requires to ascertain how or for what purpose
Contractor has used the moneys paid.
	 
	 	4.	 	Placement and payment for advertisement for Bids in appropriate publications.






	J.	 	Advise ENGINEER of the identify and scope of services of any independent consultants employed
by OWNER to perform or furnish services in regard to the Project, including, but not limited
to, cost estimating, project peer review, value engineering, and constructability review.
	 
	K.	 	Furnish to ENGINEER data as to OWNER’S anticipated costs for services to be provided by
others for OWNER so that ENGINEER may make the necessary calculations to develop and
periodically adjust ENGINEER’S opinion of Total Project Costs.
	 
	L.	 	If OWNER designates a construction manager or an individual or entity other than, or in
addition to, ENGINEER to represent OWNER at the Site, define and set forth as an attachment to
this Exhibit B the duties, responsibilities, and limitations of authority of such other party
and the relation thereof to the duties, responsibilities, and authority of ENGINEER.
	 
	M.	 	If more than one prime contract is to be awarded for the Work designed or specified by
ENGINEER, designate a person or entity to have authority and responsibility for coordinating
the activities among the various prime Contractors, and define and set forth the duties,
responsibilities, and limitations or authority of such individual or entity and the relation
thereof to the duties, responsibilities, and authority of ENGINEER as an attachment to this
Exhibit B that is to be mutually agreed upon and made a part of this Agreement before such
services begin.





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	N.	 	Attend the pre-bid conference, bid opening, pre-construction conferences, construction
progress and other job related meetings, and Substantial Completion and final payment
inspections.
	 
	O.	 	Provide the services of an independent testing laboratory to perform all inspections, tests,
and approvals of Samples, materials, and equipment required by the Contract Documents, or to
evaluate the performance of materials, equipment, and facilities of OWNER, prior to their
incorporation into the Work with appropriate professional interpretation thereof.
	 
	P.	 	Provide inspection or monitoring services by an individual or entity other than ENGINEER (and
disclose the identity of such individual or entity to ENGINEER) as OWNER determines necessary
to verify:






	 	1.	 	That Contractor is complying with any Laws and Regulations applicable to
Contractor’s performing and furnishing the Work.
	 
	 	2.	 	That Contractor is taking all necessary precautions for safety of persons or
property and complying with any special provisions of the Contract Documents applicable
to safety.






	Q.	 	Provide ENGINEER with the findings and reports generated by the entities providing services
pursuant to paragraphs O and P.
	 
	R.	 	Provide ENGINEER with soils borings and geotechnical engineering data.
	 
	S.	 	Schedule and conduct public meetings and hearings.





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EXHIBIT C — Payments to ENGINEER for Services and Reimbursable Expenses



Article 4 of the Standard Terms and Conditions is amended and supplemented to include the following
agreement of the parties.




ARTICLE 4 — PAYMENTS TO THE ENGINEER



For Basic and Additional Services Having an Undetermined Scope — Standard Hourly Rates Method of
Payment



OWNER shall pay ENGINEER for Basic and Additional Services set forth in Exhibit A having an
undetermined scope as follows:





	1.	 	The total compensation for service: under this paragraph is estimate to be $5,000.00 based on
the following assumed distribution of compensation:
	 
	a.	 	Study & Report Phase (assume 40 hrs.) $5,000.00
	 
	2.	 	ENGINEER may alter the distribution of compensation between individual phases noted herein to
be consistent with services actually rendered, but shall not exceed the total compensation
amount unless approved in writing by the OWNER.
	 
	3.	 	The total compensation for ENGINEER’S services, included in the breakdown by phases as noted
in paragraph 1, incorporates all labor, overhead profit, Reimbursable Expenses, and ENGINEER’S
Consultant’s charges.
	 
	4.	 	For services of ENGINEER’S employees engaged directly on the Project pursuant to Exhibit A,
an amount equal to the cumulative hours charged to the Project by each class of ENGINEER’S
employees times the Standard Hourly Rates for each applicable class, plus Reimbursable
Expenses. Standard Hourly Rates are attached to this Exhibit C and include salaries and wages
paid to personnel in each billing class plus the cost of customary and statutory benefits,
general and administrative overhead, non-project operating costs, and operating margin or
profit.
	 
	5.	 	Reimbursable Expenses are attached to this Exhibit C and include the Project-related internal
expenses actually incurred or allocated by the ENGINEER, plus all invoiced external
Reimbursable Expenses allocable to the Project.
	 
	6.	 	ENGINEER’S estimate of the amounts that will become payable are only estimates for planning
purposes, are not binding on the parties, and are not the minimum or maximum amounts payable
to the ENGINEER under the Agreement. When estimate compensation amounts have been stated
herein and it subsequently becomes apparent to ENGINEER that an estimated compensation amount
will be exceeded, ENGINEER shall give OWNER written notice thereof. Promptly thereafter OWNER
and ENGINEER shall review the matter of services remaining to be performed and compensation
for such services. OWNER





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	 	 	shall either agree to such compensation exceeding said estimated amount or OWNER and ENGINEER
shall agree to a reduction in remaining services to be rendered by ENGINEER, so that total
compensation for services will not exceed the estimated amount when services are completed. If
ENGINEER exceeds the estimated amount before OWNER and ENGINEER had agreed to an increase in
compensation, or a reduction in services, the ENGINEER shall be paid for all services rendered
hereunder.
	 
	7.	 	Standard Hourly Rates and Reimbursable Expense schedules will be adjusted annually to reflect
equitable changes in compensation payable to ENGINEER.




For Basic Services Having a Determined Scope — Lump Sum Method of Payment



OWNER shall pay ENGINEER for Basic Services set forth in Exhibit A, except for services of
ENGINEER’s Resident Project Representative and Post-Construction Phase services, if any, as
follows:





	1.	 	Lump Sum fee representing 3.00 % of the estimated track construction cost to be determined in
Phase I — Study & Report, based on the following assumed distribution of compensation:





	 	 	 	 	 	 	 
	 

	 	a.
	 	Preliminary Design Phase 2 – Grading Design
	 	To Be Determined
	 

	 	b.
	 	Final Design Phase 3 – Track Design
	 	To Be Determined
	 

	 	c.
	 	Additional Services
	 	Not Included
	 

	 	d.
	 	Bidding and Negotiating Phase
	 	Not Included
	 

	 	e.
	 	Construction Phase
	 	Not Included







	2.	 	ENGINEER may alter the distribution of compensation between individual phases noted herein
to be consistent with services actually rendered, but shall not exceed the total Lump Sum
amount unless approved in writing by the OWNER.
	 
	3.	 	The Lump Sum includes compensation for ENGINEER’S services and services of ENGINEER’S
Consultants, if any. Appropriate amounts have been incorporated in the Lump Sum to account for
labor, overhead, profit, and Reimbursable Expenses.
	 
	4.	 	The portion of the Lump Sum amount billed for ENGINEER’S services will be based upon
ENGINEER’S estimate of the proportion of the total services actually completed during the
billing period to the Lump Sum.
	 
	5.	 	The Lump Sum is conditioned on Contract Times to complete the Work not exceeding 12
months. Should the Contract Times to complete the Work be extended beyond this period, the
total compensation to ENGINEER shall be appropriately adjusted.






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STANDARD TERMS AND CONDITIONS




1. SERVICES OF ENGINEER





	A.	 	ENGINEER shall provide the Basic and Additional Services set forth herein and in Exhibit A.
	 
	B.	 	Upon this Agreement becoming effective, ENGINEER is authorized to begin Basic Services as
set forth in Exhibit A.





2. OWNER’S RESPONSIBILITIES



OWNER shall have the responsibilities set forth herein and in Exhibit B.




3. TIMES FOR RENDERING SERVICES





	A.	 	If in this Agreement specific periods of time for rendering services are set forth or
specific dates by which services are to be completed are provided, and if such periods of time
or dates are changed through no fault of ENGINEER, the rates and amounts of compensation
provided for herein shall be subject to equitable adjustment. If OWNER has requested changes
in the scope, extent, or character of the Project, the time of performance of ENGINEER’s
services shall be adjusted equitably.
	 
	B.	 	Suspension. If OWNER fails to give prompt written authorization to proceed with any phase
of services after completion of the immediately preceding phase, or if ENGINEER’s services are
delayed through no fault of ENGINEER, ENGINEER may, after giving seven days written notice to
OWNER, suspend services under this Agreement.





4. PAYMENTS TO ENGINEER





	A.	 	Preparation and Payment of Invoices. Invoices will be prepared in accordance with
ENGINEER’s standard invoicing practices. Invoices arc due and payable upon receipt. If OWNER
fails to make any payment due ENGINEER for services and expenses within 30 days after receipt
of ENGINEER’s invoice therefore, the amounts due ENGINEER will be increased at the rate of
1.0% per month (or the maximum rate of interest permitted by law, if less) for said thirtieth
day. In addition, ENGINEER may, after giving seven days written notice to OWNER, suspend
services under this Agreement until ENGINEER has been paid in full all amounts due for
services, expenses, and other related charges. Payments will be credited first to interest and
then to principal.
	 
	B.	 	Disputed Invoices. In the event of a disputed or contested invoice, only that portion so
contested may be withheld from payment, and the undisputed portion will he paid.
	 
	C.	 	Payments Upon Termination. In the event of any termination under Section 6- General
Conditions, ENGINEER will be entitled to invoice OWNER and will be paid in accordance with
Exhibit C for all services performed or furnished and all Reimbursable Expenses incurred
through the effective date of termination.
	 
	D.	 	Records of ENGINEER’s Costs. Records of ENGINEER’s costs pertinent to ENGINEER’s compensation
under this Agreement shall be kept in accordance with generally accepted accounting practices.
To the extent necessary to verify ENGINEER’s charges and upon




15









 






	 	 	OWNER’s timely request, copies of such records will be made available to OWNER at cost.





5. OPINIONS OF COST



ENGINEER’s opinions of probable Construction Cost provided for herein are to be made on the basis
of ENGINEER’s experience and qualifications and represent ENGINEER’s best judgment as an
experienced and qualified professional generally familiar with the industry. ENGINEER cannot and
does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions
of’ probable Construction Cost prepared by ENGINEER. If OWNER wishes greater assurance as to
probable Construction Cost, OWNER shall employ an independent cost estimator in provided in Exhibit
B.




6. GENERAL CONSIDERATIONS




Standards of Performance





	A.	 	The standard of care for all professional engineering and related services performed or
furnished by ENGINEER under this Agreement will be the care and skill ordinarily used by
members of ENGINEER’s profession practicing under similar circumstances at the same time and
in the same locality. ENGINEER makes no warranties, express or implied, under this Agreement
or otherwise, in connection with ENGINEER’s services.
	 
	B.	 	ENGINEER and OWNER shall comply with applicable Laws or Regulations and OWNER-mandated
standards. Changes to these requirements after the Effective Date of this Agreement may be the
basis for modifications to OWNER’s responsibilities or to ENGINEER’s scope of services, times
of performance, or compensation.
	 
	C.	 	OWNER shall be responsible for, and ENGINEER may rely upon, the accuracy and completeness
of all requirements, programs, instructions, reports, data, and other information furnished by
OWNER to ENGINEER pursuant to this Agreement. ENGINEER may use such requirements, reports,
data, and information in performing or furnishing services under this Agreement.
	 
	D.	 	ENGINEER shall not be responsible for the acts or omissions of any Contractor(s),
subcontractor or supplier, or of any of the Contractor’s agents or employees or any other
persons (except ENGINEER’s own employees) at the Site or otherwise furnishing or performing
any of the Contractor’s work; or for any decision made on interpretations or clarifications of
the Contract Documents given by OWNER without consultation and advice of ENGINEER.
	 
	E.	 	ENGINEER shall keep confidential all information, drawings, specifications or data
furnished by OWNER or prepared by ENGINEER specifically in connection with this Agreement.
	 
	F.	 	ENGINEER shall comply with applicable Federal, State and local laws, ordinances,
regulations, rules and orders relating to the environment and occupational health and safety.
ENGINEER shall not be responsible for safety and health of any persons on the Project except
ENGINEER’s own employees.




16









 











Use of Documents





	A.	 	All Documents are instruments of service in respect to this Project, and ENGINEER shall
retain an ownership and property interest therein (including the right of reuse at the
discretion of the ENGINEER) whether or not the Project is completed.
	 
	B.	 	Copies of Documents that may be relied upon by OWNER are limited to the printed copies
(also known as hard copies) that are signed or sealed by the ENGINEER. Files in electronic
media format of text, data, graphics, or of other types that are furnished by ENGINEER to
OWNER are only for convenience of OWNER. Any conclusion or information obtained or derived
from such electronic files will be at the user’s sole risk. If there is a discrepancy between
the electronic files and the hard copies, the hard copies govern.
	 
	C.	 	OWNER may make and retain copies of Documents for information and reference in connection
with use on the Project by OWNER. Such Documents are not intended or represented to be
suitable for reuse by OWNER or others on extensions of the Project or on any other project.
Any such reuse or modification without written verification or adaptation by ENGINEER, as
appropriate for the specific purpose intended, will he at OWNER’s sole risk and without
liability or legal exposure to ENGINEER or to ENGINEER’s Consultants. OWNER shall indemnify
and hold harmless ENGINEER and ENGINEER’s Consultants from all claims, damages, losses and
expenses, including attorneys’ fees arising out of or resulting therefrom.





Insurance





	A.	 	ENGINEER shall procure and maintain insurance as set forth in Exhibit G, “Insurance”.
	 
	B.	 	OWNER shall procure and maintain insurance as set forth in Exhibit G, “Insurance”. OWNER
shall cause ENGINEER and ENGINEER’s Consultants to be listed as additional insureds on any
general liability or property insurance policies carried by OWNER which are applicable to the
Project.
	 
	C.	 	OWNER and ENGINEER shall each deliver to the other certificates of insurance evidencing the
coverages indicated in Exhibit G. Such certificates shall be furnished prior to commencement
of ENGINEER’s services and at renewals thereafter during the life of the Agreement.





Termination





	A.	 	The obligation to provide further services under this Agreement may be terminated:






	 	1.	 	For cause,






	 	a.	 	By either party upon 30 days written notice in the event of
substantial failure by the other party to perform in accordance with the terms
hereof through no fault of the terminating party.
	 
	 	b.	 	By ENGINEER, upon seven days written notice if ENGINEER believes that
ENGINEER is being requested by OWNER to furnish or perform services contrary to
ENGINEER’s responsibilities as a licensed professional or, upon seven days written
notice if the ENGINEER’s services for the Project are delayed or suspended for more
than 90 days for reasons beyond ENGINEER’s control. ENGINEER shall have no liability
to OWNER on account of such termination.




17









 












	 	2.	 	For convenience,






	 	a.	 	By OWNER effective upon the receipt of notice by ENGINEER.





Controlling Law



This Agreement is to be governed by the law of the state of Nebraska.




Successors, Assigns, and Beneficiaries





	A.	 	OWNER and ENGINEER each is hereby bound and the partners, successors, executors,
administrators and legal representatives of OWNER and ENGINEER (and to the extent permitted by
the following paragraph the assigns of OWNER and ENGINEER) are hereby bound to the other party
to this Agreement and to the partners, successors, executors, administrators and legal
representatives (and said assigns) of such other party, in respect of all covenants,
agreements and obligations of this Agreement.
	 
	B.	 	Neither OWNER nor ENGINEER may assign, sublet, or transfer any rights under or interest
(including, but not without limitation, moneys that are due or may become due) in this
Agreement without the written consent of the other, except to the extent that any assignment,
subletting, or transfer is mandated or restricted by law. Unless specifically stated to the
contrary in any written consent to an assignment, no assignment will release or discharge the
assignor from any duty or responsibility under this Agreement.





Hazardous Environmental Condition





	A.	 	OWNER represents to ENGINEER that to the best of its knowledge a Hazardous Environmental
Condition does not exist. It is acknowledged by both parties that ENGINEER’s scope of services
does not include any services related to a Hazardous Environmental Condition. If a Hazardous
Environmental Condition is encountered or alleged, ENGINEER shall have the obligation to
notify OWNER and, to the extent of applicable Laws and Regulations, appropriate governmental
officials.
	 
	B.	 	OWNER acknowledges that ENGINEER is performing professional services for OWNER and that
ENGINEER is not and shall not be required to become an “arranger”, “operator,” “generator”, or
“transporter” of hazardous substances, as defined in the Comprehensive Environmental Response,
Compensation, and Liability Act of 1990 (CERCLA), which are or may be encountered at or near
the Site in connection with ENGINEER’s activities under this Agreement.





Allocation of Risks



Indemnification:





	A.	 	To the fullest extent permitted by law, ENGINEER and OWNER shall indemnify and hold
harmless each other, their officers, directors, partners, and employees from and against any
and all costs, losses, and damages (including but not limited to all fees and charges of
engineers, architects, attorneys, and other professionals, and all court or arbitration or
other dispute resolution costs) caused solely by the their negligent acts or omissions or
those of their officers, directors, partners, employees, and consultants with respect to this




18









 






	 	 	Agreement.
	 
	B.	 	To the fullest extent permitted by law, ENGINEER’s total liability to OWNER and anyone
claiming by, through, or under OWNER for any cost, loss, or damages caused in part by the
negligence of ENGINEER and in part by the negligence of OWNER or any other negligent entity or
individual, shall not exceed the percentage share that ENGINEER’s negligence bears to the
total negligence of OWNER, ENGINEER, and all other negligent entities and individuals.
	 
	C.	 	In addition, OWNER shall indemnify and hold harmless ENGINEER and its officers,
directors, partners, employees, and ENGINEER’s Consultants from and against all costs, losses,
and damages caused by, arising out of or resulting from a Hazardous Environmental Condition.




ENGINEER’s Liability Limited to Amount of ENGINEER’s Compensation: To the fullest extent permitted
by law, and notwithstanding any other provision of this Agreement, the total liability, in the
aggregate, of ENGINEER and ENGINEER’s officers, directors, partners, employees, agents, and
ENGINEER’s Consultants, and any of them, to OWNER and anyone claiming by, through, or under OWNER
for any and all claims, losses, costs, or damages whatsoever arising out of, resulting from or in
any way related to the Project or the Agreement from any cause or causes, including but not limited
to the negligence, professional errors or omissions, strict liability or breach of contract, or
warranty express of implied of ENGINEER or ENGINEER’s officers, directors, partners, employees,
agents, or ENGINEER’s Consultants, or any of them, shall not exceed the total compensation received
by ENGINEER under this Agreement.




Notices



Any notice required under this Agreement will be in writing, addressed to the appropriate party at
its address on the signature page and given personally, or by registered or certified mail postage
prepaid, or by a commercial courier service. All notices shall be effective upon the date of
receipt.




Survival



All express representations, indemnifications, or limitations of liability included in this
Agreement will survive its completion or termination for any reason.




Severability



Any provision or part of the Agreement held to be void or unenforceable under any Laws or
Regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and
binding upon OWNER and ENGINEER, who agree that the Agreement shall be reformed to replace such
stricken provision or part thereof with a valid and enforceable provision that comes as close as
possible to expressing the intention of the stricken provision.




Waiver



Non-enforcement of any provision by either party shall not constitute a waiver of that provision,


19









 






nor shall it affect the enforceability of that provision or of the remainder of this Agreement.




7. DEFINITIONS




Defined Terms



Wherever used in this Agreement (including the Exhibits hereto) and printed with initial or all
capital letters, the terms listed below have the meanings indicated, which are applicable to both
the singular and plural thereof:





	1.	 	Addenda - Written or graphic instruments issued prior to the opening of Bids which
clarify, correct, or change the Bidding Documents.
	 
	2.	 	Agreement - This “Standard Form of Agreement between OWNER and ENGINEER for Professional
Services,” including Exhibits.
	 
	3.	 	Bid - The offer or proposal of the bidder submitted on the prescribed form setting forth
the prices for the Work to be performed.
	 
	4.	 	Bidding Documents - The advertisement or invitation to Bid, instructions to bidders, the Bid
form and attachments, the Bid bond, if any, the proposed Contract Documents, and all Addenda,
if any.
	 
	5.	 	Construction Cost - The cost to OWNER of those portions of the entire Project designed or
specified by ENGINEER. Construction Cost does not include costs of services of ENGINEER or
other design professionals and consultants, cost of land, rights-of-way, or compensation for
damages to properties, or OWNER’s costs for legal, accounting, insurance counseling or
auditing services, or interest and financing charges incurred in connection with the Project,
or the cost of other services to be provided by others to OWNER pursuant to Exhibit B of this
Agreement. Construction Cost is one of the items comprising Total Project Costs.
	 
	6.	 	Contract Documents - Documents that establish the rights and obligations of the parties
engaged in construction and include the Construction Agreement between OWNER and Contractor,
Addenda (which pertain to the Contract Documents), Contractor’s Bi3 (including documentation
accompanying the Bid and any post-Bid documentation submitted prior to the notice of award)
when attached as an exhibit to the Construction Agreement, the notice to proceed, the bonds,
appropriate certifications, the General Conditions, the Supplementary Conditions, the
Specifications and the Drawings as the same are more specifically identified in the
Construction Agreement, together with all Written Amendments, Change Orders, Work Change
Directives, Field Orders, and ENGINEER’s written interpretations and clarifications issued on
or after the Effective Date of the Construction Agreement. Approved Shop Drawings and the
reports and drawings of subsurface and physical conditions are not Contract Documents.
	 
	7.	 	Documents - Data, reports, Drawings, Specifications, Record Drawings, and other deliverables,
whether in printed or electronic media format, provided or furnished in appropriate phases by
ENGINEER to OWNER pursuant to this Agreement.
	 
	8.	 	Drawings - That part of the Contract Documents prepared or approved by ENGINEER which
graphically shows the scope, extent, and character of the Work to be performed by Contractor.
Shop Drawings are not Drawings as so defined.
	 
	9.	 	Effective Date of the Agreement - The date indicated in this Agreement upon which it





END




20









 









	 	 	becomes effective, but if no such date is indicated, it means the date on which the Agreement
is signed and delivered by the last of the two parties to sign and deliver.
	 
	10.	 	ENGINEER’s Consultants - Individuals or entities having a contract with ENGINEER to furnish
services with respect to this Project as ENGINEER’s independent professional associates,
consultants, subcontractors, or vendors. The term ENGINEER includes ENGINEER’s Consultants.
	 
	11.	 	Hazardous Environmental Condition — The presence at the Site of Asbestos, PCB’s, Petroleum,
Hazardous Waste, or Radioactive Materials in such quandties or circumstances that may present
a substantial danger to persons or property exposed thereto in connection with the Work.
	 
	12.	 	Hazardous Waste - The term Ilazardous Waste shall have the meaning provided in Section 1004
of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time.
	 
	13.	 	Laws and Regulations; Laws or Regulations - Any and all applicable laws, rules, regulations,
ordinances, codes, standards, and orders of any and all governmental bodies, agencies,
authorities, and courts having jurisdiction.
	 
	14.	 	Site - Lands or areas indicated in the Contract Documents as being furnished by OWNER upon
which the Work is to be performed, rights-of-way and easements for access thereto, and such
other lands furnished by OWNER which are designated for use of Contractor.
	 
	15.	 	Specifications - That part of the Contract Documents consisting of written technical
descriptions of materials, equipment, systems, standards, and workmanship as applied to the
Work and certain administrative details applicable thereto.
	 
	16.	 	Work - The entire completed construction or the various separately identifiable parts thereof
required to be provided under the Contract Documents with respect to this Project. Work
includes and is the result of performing or furnishing labor, services, and documentation
necessary to produce such construction and furnishing, installing, and incorporating all
materials and all equipment into such construction, all as required by the Contract Documents.




21









 











ATTACHMENT 1




STANDARD HOURLY RATES

FOR YEAR 2005




	 	 	 	 	 
	Principal/Project Manager
	 	$90.00/hr.
	Professional Engineer
	 	$77.00/hr.
	Design Engineer
	 	$67.00/hr.
	Engineering Technician
	 	$50.00/hr.
	CAD Technician
	 	$42.00/hr.
	Clerical
	 	$38.00/hr.






REIMBURSABLE EXPENSES




	 	 	 
	CAD Workstation & Plotter
	 	$3.00/hr.
	Printing
	 	Actual Cost
	Commercial Services
	 	Actual Cost
	Vehicle- Rental
	 	Actual Cost
	Vehicle- Company
	 	IRS Allowable Rate
	Rental Equipment
	 	Actual Cost
	Travel & Per Diem
	 	Actual Cost
	Laboratory Testing
	 	Actual Cost + 10%
	Sub Consultants
	 	Actual Cost + 10%
	Cellular Telephone Calls
	 	Actual Cost
	Long Distance Telephone Calls
	 	Actual Cost







22