Exhibit
10.9


CONSULTING
AGREEMENT AND AUTHORIZATION TO PROCEED


This Agreement between EARTH TECH, Inc, d.b.a. Earth Tech Consulting,
Inc., a California corporation, (“ETI”) with offices at 3033 Campus Drive
North, Suite 290, Minneapolis, Minnesota 55441 and Highwater
Ethanol (“CLIENT”), with offices at 30427
County Highway 10, Vesta, Minnesota 56292.


1.                                       ETI agrees to perform the services described
in its PROPOSAL dated 04/26/06,
including attachments and amendments (“SERVICES”).


2.                                      CLIENT authorizes ETI to perform these
SERVICES for the following project and location:


Environmental Permitting
for the Proposed Highwater Ethanol Facility near Lamberton, Minnesota.


3.                                      ETI is willing to perform the SERVICES in
exchange for the following fee (check and complete):


o                                    CLIENT will pay on a time and
material basis.  ETI will
invoice according to the Fee Schedule* attached to the PROPOSAL.


o                                    CLIENT will pay a lump sum
of $                .  ETI will invoice monthly on a percentage
completed basis.


x                                  CLIENT will pay on a time and
material basis not to exceed the sum of $88,625.50.  ETI will invoice according to the Fee
Schedule* attached to the PROPOSAL up to the stated limit.  Upon reaching the limit, ETI will stop
performing unless CLIENT authorizes further work in writing.


o                                    CLIENT will pay a retainer in the amount of $                ,
to be applied against the fee.






*ETI reserves the right to adjust its Fee Schedule
annually.


4.                                       Billing:     ETI will
submit invoices to CLIENT monthly. 
CLIENT recognizes that timely payment is a material part of this
Agreement.  Each invoice is due and
payable within thirty (30) calendar days of the date of the invoice.  CLIENT will pay an additional charge of one
and one-half percent per month not to exceed the maximum rate allowed by law
for any payment received by ETI more than thirty (30) calendar days from the
date of the invoice.  CLIENT will pay
when due that portion of invoice, if any, not in dispute.  If CLIENT fails to pay any undisputed
invoiced amounts within thirty (30) calendar days of the date of the invoice,
ETI may suspend its performance or terminate this Agreement without incurring
any liability to CLIENT and without waiving any other claim against CLIENT.


5.                                      Special Provisions:           x      NONE           o      ATTACHMENT


6.                                       CLIENT RECOGNIZES THAT THE
PRESENCE OF HAZARDOUS MATERIALS OR POLLUTION ON OR BENEATH THE SURFACE OF A
SITE MAY CREATE RISKS AND LIABILITIES. 
CONSULTANT HAS NEITHER CREATED NOR CONTRIBUTED TO THIS POLLUTION.  CONSEQUENTLY, CLIENT RECOGNIZES THIS AGREEMENT
WILL ACCORDLINGLY LIMIT CONSULTANT’S LIABILITY.


CLIENT confirms reading this document in full
(including the terms 7 through 18 on the following page).  This Agreement when executed by Earth Tech is
an offer to perform their services, open for acceptance within 30 days.  This Agreement becomes effective on the date
CLIENT signs below.


	
  CLIENT:

  	
   

  	
   

  	
   

  	
  ETI – EARTH TECH, Inc., d.b.a Earth Tech
  Consulting, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Brian Kletscher

  	
   

  	
  By:

  	
   

  	
  /s/ J. Michael Valentine

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
  Brian Kletscher

  	
   

  	
  Name:

  	
   

  	
  J. Michael Valentine

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
  President

  	
   

  	
  Title:

  	
   

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  5/4/06

  	
   

  	
  Date:

  	
   

  	
  04/26/06

  	
   

  



 









 



7.                                       Standard of Care:  ETI
will perform the Services in accordance with the standards of care and diligence
normally practiced by consulting firms performing services of a similar nature
in the same locale.


8.                                       Indemnity/Limitation of
Liability:  Subject to any limitations stated in this
Agreement, ETI will indemnify and hold harmless CLIENT, its officers, directors,
employees, and subcontractors, from and against all claims and actions,
including reasonable attorneys fees, arising out of damages or injuries to
persons or tangible property to the extent they are caused by a professionally
negligent act, error, or omission of ETI or any of its agents, subcontractors,
or employees in the performance of Services under this Agreement.  ETI will not be responsible for any loss,
damage, or liability arising from any contributing negligent acts by CLIENT,
its subcontractors, agents, staff, or consultants.  Neither party will be responsible to the
other for consequential damages including, but not limited to, loss of profit,
loss of investment or business interruption. 
The CLIENT also agrees to seek recourse only against ETI and not against
its officers, employees, directors, or shareholders.  The CLIENT agrees to limit
ETI’s liability due to breach of contract, warranty or negligent acts, errors
or omissions of ETI to $50,000 or the fee paid to ETI under this Agreement, whichever
is greater.


9.                                       Insurance:  During
the period that Services are performed under this Agreement, ETI will maintain
the following insurance:  (1) Workers’
Compensation coverage in accordance with the laws of the states having
jurisdiction over its employees engaged in the Services and Employer’s
Liability Insurance (limit of $500,000 each occurrence.); (2) Commercial
General Liability Policy with a limit of $1,000,000 per occurrence and a
$2,000,000 aggregate; (3) Commercial Automobile Liability with a limit of
$500,000 per occurrence and a $1,000,000 aggregate; and (4) Professional
Liability coverage with a $500,000 limit on each claim and a $1,000,000
aggregate.  Client
agrees ETI will not be liable for any loss, damage, or liability arising out of
this Agreement beyond the coverage, and conditions of such insurance with
limits as stated above.


10.                                 Hazardous Substances/Hazardous
Waste:  CLIENT represents that if CLIENT knows or has
reason to suspect that hazardous substances or pollution may exist at the
project site, CLIENT has fully informed ETI. 
In the event ETI encounters hazardous substances or contamination
significantly beyond that originally represented by CLIENT, ETI may suspend its
Services and enter into good faith renegotiation of this Agreement.  CLIENT acknowledges that ETI has no
responsibility as a generator, treater, storer, or disposer of hazardous or
toxic substances found or identified at a site and CLIENT agrees to defend,
indemnify, and hold harmless ETI, from any claim or liability, arising out of
ETI’s performance of work under this Agreement and made or brought against ETI
for any actual or threatened environmental pollution or contamination except to
the extent that ETI has negligently caused or contributed to any such pollution
or contamination.  This indemnification
includes reasonable attorney fees and expenses incurred by ETI in defense of
such claim.


11.                                 Sample Ownership:  All
samples and cuttings of materials containing hazardous contaminants are the
property and responsibility of CLIENT. 
Removal of cuttings from the project site will remain the obligation of
CLIENT.  Absent direction from CLIENT,
ETI may return all contaminated samples and laboratory byproducts to the CLIENT
for proper disposal or treatment.


12.                                 Buried Utilities:  In
those situations where ETI performs subsurface exploration, CLIENT, to the
extent of its knowledge, will furnish to ETI information identifying the type
and location of utilities and other man-made objects beneath the surface of the
project site.  ETI will take reasonable
precautions to avoid damaging these utilities or objects.  Prior to penetrating the site’s surface, ETI
will furnish CLIENT a plan indicating the locations intended for
penetration.  CLIENT will approve the
location of these penetrations and authorize ETI to proceed.


13.                                 Documents and Records:  CLIENT
acknowledges that ETI’s reports, boring logs, field data, field notes,
laboratory test data, calculations, estimates and other similar documents (“Records”)
are instruments of professional service, not products.  All data ETI prepares for CLIENT under this
Agreement will remain the property of ETI. 
CLIENT will not use any ETI data or report for any purpose other than
its original purpose as defined in the PROPOSAL.  CLIENT has no rights to incomplete or partial
data.  ETI will retain these Records for
a period of three (3) years following completion of this project.  During this time, ETI will reasonably make
available the records to the CLEINT.  ETI
may charge a reasonable fee in addition to its professional fees for retrieving
or copying such records.


14.                                 Change Orders:  ETI
will treat as a change order any written or oral order (including directions,
instructions, interpretations or determinations) from CLIENT which request changes
in the Services.  ETI will give CLIENT
notice within ten (10) days of the change order of any resulting increase in
fee.  Unless Client objects in writing
within five (5) days, the change order becomes a part of this Agreement.









 



15.                                 Third-Party Rights:  Except
as specifically stated in this Agreement, this Agreement does not create any
rights or benefits to parties other than CLIENT and ETI.


16.                                 Assignment/Status:  The
CLIENT will not delegate, assign, sublet, or transfer any interest in this
Agreement without the written consent of ETI. 
ETI is an independent consultant and not the agent or employee of
CLIENT.


17.                                 Termination:  Either
party may terminate the Services with or without cause upon ten (10) days
advance written notice.  If Client
terminates without cause, CLIENT will pay ETI costs incurred, noncancelable
commitments, and fees earned to the date of termination and through
demobilization, including any cancellation charges of vendors and
subcontractors.


18.                                 Complete Agreement:  The
Parties acknowledge this Agreement, including the Proposal and any Attachments
constitute the entire Agreement between them. 
Unless stated otherwise in this Agreement, this Agreement may not be
modified except in a writing signed by both parties.  The parties agree that California law governs
this Agreement and any dispute involving this Agreement.