Exhibit 10.10


 


STANDARD
FORM OF AGREEMENT


BETWEEN
OWNER AND ENGINEER


FOR


PROFESSIONAL
SERVICES


 


This AGREEMENT is made by and Ethanol Grain
Processors, 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:


 


Engineering
design services for a spur track serving the ethanol plant at Obion, TN.


 


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


 


	
  ý

  	
   

  	
  Standard Terms
  and Conditions

  
	
  ý

  	
   

  	
  Exhibit A:

  	
   

  	
  ENGINEER’S  Services

  
	
  ý

  	
   

  	
  Exhibit B:

  	
   

  	
  OWNER’S
  Responsibilities

  
	
  ý

  	
   

  	
  Exhibit C:

  	
   

  	
  Payments to
  ENGINEER for Services and Reimbursable Expenses

  
	
   

  	
   

  	
  Exhibit G:

  	
   

  	
  Insurance

  
	
  ý

  	
   

  	
  Attachment 1:

  	
   

  	
  Hourly Rates
  2005

  



 


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

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ETHANOL
  GRAIN PROCESSORS

  	
   

  	
  ANTIOCH
  International, Inc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BY:

  	
  /s/
  Alvin D. Escue

  	
   

  	
   

  	
  BY:

  	
         /s/
  William J. Jones

  	
   

  
	
   

  	
  Authorized Representative

  	
   

  	
   

  	
  Authorized Representative

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TITLE: 

  	
  General
  Manager/CEO

  	
   

  	
   

  	
  TITLE:  President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  EFFECTIVE DATE:

  	
  3-28-05

  	
   

  	
   

  	
  DATE:  March
  24, 2005

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ADDRESS:

  	
   

  	
  ADDRESS:

  	
   

  
	
   

  	
  1918 McDonald Road

  	
   

  	
  2540 South 221st Circle

  	
   

  
	
   

  	
  Rives, TN 38253

  	
   

  	
  Elkhorn, NE 68022

  	
   

  
	
   

  	
  Telephone: 731-536-1286

  	
   

  	
  Telephone: 402-289-2217

  	
   

  
	
   

  	
  OWNER’S Contact: 
  Alvin Escue

  	
   

  	
  ENGINEER’S Contact: William J. Jones

  	
   

  
	
   

  	
   

  	
   

  	
  Job No.:03-011

  	
   

  
										



 


 


PLEASE SIGN AND RETURN ONE ORIGINAL TO
ENGINEER


 

















 


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 are 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 be 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 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.


 


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 be 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.


 


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 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,
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 Bid (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 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 quantities or circumstances that may present a
substantial danger to persons or property exposed thereto in connection with
the Work.


 


12.         Hazardous Waste – The term Hazardous 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.


 


END


 






 













 


EXHIBIT
A – ENGINEER’s Services


 


Section 1 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.


•                  Service
by the main line railroad is planned three times each week.


•                  At
50 MMG production, 100% of ethanol & DDGS products transported by rail will
generate about 35 tank cars & 35 hopper cars each week.


•                  Track
configuration must provide for outbound traffic to go either North or South
from the plant site.


•                  Current
mainline traffic is 26 trains per day.


•                  Coordinate
track design with the mainline railroad and Fagen Engineering, LLC.


 


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.


 


1

















 


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:


 


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

















 


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


•                  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 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.


 


END


 


3

















 


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.


 


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.


 


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.


 


END


 

















 


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 services under this paragraph is estimate to be $ 5,000.00
based on the following assumed distribution of compensation:


 


	
  a.

  	
   

  	
  Study & Report Phase (assume 50 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.


 


6.  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.


 


7.  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 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.


 


8.  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, Part 1 except for Study and Report
Phase and 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 track construction cost to be determined in
Phase 1 — Study & Report, based on the following assumed distribution of
compensation:


 


	
  a.

  	
   

  	
  Study and Report Phase

  	
   

  	
  See Hourly Payment

  
	
  b.

  	
   

  	
  Preliminary Design
  Phase- Grading Design

  	
   

  	
  50%

  
	
  c.

  	
   

  	
  Final Design Phase-
  Track Design

  	
   

  	
  50%

  
	
  d.

  	
   

  	
  Additional Services

  	
   

  	
  Not included

  
	
  e.

  	
   

  	
  Bidding and Negotiating
  Phase

  	
   

  	
  Not included

  
	
  f.

  	
   

  	
  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. ENGINEER
assumes full responsibility for, and shall pay, all contributions and taxes
payable under federal and state social security acts, unemployment compensation
laws, and income tax laws applicable to ENGINEER and its employees.


 


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
six months. Should the Contract Times to complete the Work be extended beyond
this period, the total compensation to ENGINEER shall be appropriately
adjusted.


 


END


 

















 





 


Appendix
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

  



 


	
  PH.
  402-289-2217

  	
   

  	
  FAX:
  402-289-2276

  	
   

  	
  EMAIL:
  wjjones@antioch-intl.com

  



 

















 


The Agreement between OWNER and ENGINEER for
Professional Services dated


3-24-05 is
hereby amended to include this exhibit.


 


	
  Initial
  & Date:

  
	
  OWNER:

  	
    /s/
  JKP 2-16-06

  
	
  ENGINEER

  	
    /s/ WJ 9-26-05

  
			



 


EXHIBIT
C – Payments to ENGINEER for Services and Reimbursable Expenses


 


Section 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 Services Having a Determined Scope — Lump Sum
Method of Payment


 


OWNER shall pay ENGINEER
for Basic Services set forth in Exhibit A, Part 1 except for Study and Report
Phase and services of ENGINEER’s Resident Project Representative and
Post-Construction Phase services, if any, as follows:


 


1.                             Lump
Sum amount of $80,165.00 based on the following assumed distribution of
compensation:


 


	
  a.

  	
   

  	
  Preliminary
  Design Phase

  	
   

  	
  $

  	
  40,082.50

  	
   

  
	
  b.

  	
   

  	
  Final Design Phase

  	
   

  	
  $

  	
  40,082.50

  	
   

  



 


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. ENGINEER
assumes full responsibility for , and shall pay, all contributions and taxes
payable under federal and state social security acts, unemployment compensation
laws, and income tax laws applicable to ENGINEER and its employees.


 


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
four months. Should the Contract Times to complete the Work be extended beyond
this period, the total compensation to ENGINEER shall be appropriately
adjusted.


 


END