exv10w5



 




Exhibit 10.5






STANDARD FORM OF AGREEMENT

BETWEEN OWNER AND ENGINEER

FOR

PROFESSIONAL SERVICES



This AGREEMENT is made by and between Ozark Ethanol, 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:





Engineering design services for a spur track to serve the proposed 50 MMG gas-fired ethanol
plant at Nevada, MO.


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
	X

	 	Attachment 1:
	 	Hourly Rates 2006
	X

	 	Attachment 2:
	 	Typical Track Design & Construction Schedule
	X

	 	Attachment 3:
	 	Confidentiality/Non-Disclosure Agreement





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

	 
	 	 	 	 	 	 	 	 
	OZARK ETHANOL, LLC	 	 	 	ANTIOCH International, Inc.
	 
	 	 	 	 	 	 	 	 
	BY:

	 	   /s/ Jim McClendon
	 	 	 	BY:
	 	   /s/ William J. Jones
	 

	 	 
	 	 	 	 	 	 
	 

	 	Authorized Representative
	 	 	 	 	 	Authorized Representative
	 
	TITLE:

	 	Chairman of Board
	 	 	 	TITLE:
	 	President
	 
	 	 	 	 	 	 	 	 
	EFFECTIVE DATE: 11-28-06	 	 	 	DATE: October 12, 2006
	 
	 	 	 	 	 	 	 	 
	ADDRESS:

P.O. Box 43

Liberal, MO 64762

Telephone: TBD

OWNER’S Contact: Jim McClendon	 	 	 	ADDRESS:

2540 South 221st Circle

Elkhorn, NE 68022

Telephone: 402-289-2217

ENGINEER’S Contact: William J. Jones

Job No.: 03-042






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.




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	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




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	 	 	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 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 or 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.




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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





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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 to accommodate 50 MMG gas-fired plant production.
	 
	 	¡	 	Determine the service interval by the main line railroad.
	 
	 	¡	 	Determine current mainline railroad traffic.
	 
	 	¡	 	The initial track construction concept for a 50 MMG ethanol plant to be
compatible with the service interval.
	 
	 	¡	 	Determine a track configuration providing unit train ingress/egress to the
plant site acceptable to the mainline railroad for in-bound and out-bound 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 45 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 and accepted by 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:



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	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 45 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 and accepted by 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.




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	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 50 MMG track layout.
	 
	 	•	 	Railroad mileposts & 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 45 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 and accepted by OWNER.



Bidding or Negotiating Phase




After acceptance by OWNER of the Final Design Phase documents and the most recent opinion of
probable Construction Cost as determined in the Final Design Phase, and upon written authorization
by OWNER to proceed, ENGINEER shall:




	1.	 	Prepare and furnish Bidding Documents, Agreement, Bonds, and Proposal Form for review and
approval by OWNER, its legal counsel, and other advisors, as appropriate, and assist OWNER in
the preparation of other related documents.




3









 












	2.	 	Assist OWNER in advertising for and obtaining bids or negotiating proposals for the Work and,
where applicable, maintain a record of prospective bidders to whom Bidding Documents have been
issued, attend pre-Bid conferences, if any, and receive and process Contractor deposits or
charges for the Bidding Documents.
	 
	3.	 	Issue Addenda as appropriate to clarify, correct, or change the Bidding Documents.






	4.	 	Consult with OWNER as to the acceptability of subcontractors, suppliers, and other
individuals and entities proposed by Contractor for those portions of the Work as to which
such acceptability is required by the Bidding Documents.






	5.	 	Perform or provide the following additional Bidding or Negotiating Phase tasks or
deliverables: NONE






	6.	 	Attend the Bid opening, prepare Bid tabulation sheets, and assist OWNER in evaluating Bids or
proposals and in assembling and awarding contracts for the Work.






	7.	 	Furnish two sets of Bidding Documents and review them with OWNER within 14 days of
authorization to proceed with the Bidding or Negotiating Phase.






	8.	 	Revise the Bidding Documents in response to OWNER’S and other parties’ comments, as
appropriate, and furnish two final sets of the revised Bidding Documents to the OWNER within
14 days after completion of reviewing it with OWNER.






	9.	 	Deliverables.






	 	¡	 	Bidding Documents.
	 
	 	¡	 	Record of prospective bidders.
	 
	 	¡	 	Addenda issued during Bidding or Negotiating Phase.
	 
	 	¡	 	Agenda & minutes of pre-bid meeting.
	 
	 	¡	 	Bid tabulation.
	 
	 	¡	 	Engineer’s recommendation of award.





ANTIOCH shall not be responsible for those portions of the Work performed by OWNER.



The Bidding or Negotiating Phase will be considered complete upon commencement of the Construction
Phase or upon cessation of negotiations with prospective Contractors.



Construction Phase




A. Upon successful completion of the Bidding and Negotiating Phase, and upon written authorization
from OWNER, ENGINEER shall:




     1. General Administration of Construction Contract. Consult with OWNER and act as
OWNER’S representative as provided in the General Conditions. The extent and limitations
of the duties, responsibilities and authority of ENGINEER as assigned in said General
Conditions shall not be modified, except as ENGINEER may otherwise agree in writing. All
of OWNER’S instructions to Contractor will be issued through ENGINEER, who shall have
authority to act on behalf of OWNER in dealings with Contractor to the extent provided in
this Agreement and said General Conditions except as otherwise provided in writing.
ENGINEER’S dealings with subcontractors shall only be through or with the full knowledge
and approval of Contractor.




     2. Records. Maintain orderly files for correspondence, reports of job conferences,
reproductions of original Contract Documents including all Change Orders, Field Orders,
Work Change Directives, Addenda, additional Drawings issued subsequent to the execution of
the Contract, ENGINEER’S clarifications and interpretations of the Contract Documents,
progress reports, Shop Drawing and Sample submittals received from and delivered to
Contractor, and other Project related documents.




     3. Selecting Independent Testing Laboratory. ENGINEER shall assist OWNER in selecting
an independent testing laboratory to perform the services identified in paragraph B2.01.0.




     4. Conferences and meetings. Participate in Pre-Construction Conferences prior to
commencement of Work at the Site and progress meetings during the Work. Prepare and
circulate copies or minutes thereof. The



4









 







Pre-Construction Conference shall establish the Contractor’s proposed work schedule and the
Schedule of Shop Drawings and Samples required to complete the Work.




     5. Baselines and Benchmarks. As appropriate, establish baselines and benchmarks for
locating the Work which in ENGINEER’S judgment are necessary to enable Contractor to
proceed.




     6. Visits to Site and Observation of Construction. In connection with observations of
Contractor’s work in progress while it is in progress:




     a. Make visits to the Site at intervals appropriate to the various stages of
construction, as ENGINEER deems necessary, in order to observe as an experienced
and qualified design professional the progress and quality of the Work. Such
visits and observations by ENGINEER, and the Resident Project Representative, if
any, are not intended to be exhaustive or to extend to every aspect of Contractor’s
work in progress or to involve detailed inspections of Contractor’s work in
progress beyond the responsibilities specifically assigned to ENGINEER in this
Agreement and the Contract Documents, but rather are to be limited to spot
checking, selective sampling, and similar methods of general observation of the
Work based on ENGINEER’S exercise of professional judgment as assisted by the
Resident Project Representative, if any. Based on information obtained during such
visits and such observations, ENGINEER will determine in general if Contractor’s
work is proceeding in accordance with the Contract Documents, and ENGINEER shall
keep OWNER informed of the progress of the Work.




     b. The purpose of ENGINEER’S visits to, and representation by the Resident
Project Representative, if any, at the Site, will be to enable ENGINEER to better
carry out the duties and responsibilities assigned to and undertaken by ENGINEER
during the Construction Phase, and, in addition, by the exercise of ENGINEER’S
efforts as an experienced and qualified design professional, to provide for OWNER a
greater degree of confidence that the completed Work will conform in general to the
Contract Documents and that the integrity of the design concept of the completed
Project as a functioning whole as indicated in the Contract Documents has been
implemented and preserved by Contractor. ENGINEER shall not, during such visits or
as a result of such observations of Contractor’s work in progress, supervise,
direct, or have control over Contractor’s work, nor shall ENGINEER have authority
over or responsibility for the means, methods, techniques, sequences, or procedures
of construction selected by Contractor, for safety precautions and programs
incident to Contractor’s work, or for any failure of Contractor to comply with Laws
and Regulations applicable to Contractor’s furnishing and performing the Work.
Accordingly, ENGINEER neither guarantees the performance of any Contractor nor
assumes responsibility for any Contractor’s failure to furnish and perform its work
in accordance with the Contract Documents.




     7. Defective Work. Recommend to OWNER that Contractor’s work be disapproved and
rejected while it is in progress if, on the basis of such observations, ENGINEER believes
that such work will not produce a completed Project that conforms generally to the Contract
Documents or that it will prejudice the integrity of the design concept of the completed
Project as a functioning whole as indicated in the Contract Documents.




     8. Clarifications and Interpretations; Field Orders. Issue necessary clarifications
and interpretations of the Contract Documents as appropriate to the orderly completion of
Contractor’s work. Such clarifications and interpretations will be consistent with the
intent of and reasonably inferable from the Contract Documents. ENGINEER may issue Field
Orders authorizing minor variations from the requirements of the Contract Documents.




     9. Change Orders and Work Change Directives. Consider and evaluate Contractor’s
suggestions for modifications in Drawings or Specifications. Recommend Change Orders and
Work Change Directives to OWNER, as appropriate, and prepare Change Orders and Work Change
Directives as required.




     10. Shop Drawings and Samples. Review and approve or take other appropriate action in
respect to Shop Drawings and Samples and other data which Contractor is required to submit,
but only for conformance with the information given in the Contract Documents and
compatibility with the design concept of the completed Project as a functioning whole as
indicated in the Contract Documents. Such reviews and approvals or other action will not
extend to means, methods, techniques, sequences or procedures of construction or to safety
precautions and programs incident thereto. ENGINEER has an obligation to meet any
Contractor’s submittal schedule that has earlier been acceptable to ENGINEER. Advise
Contractor of the commencement of any portion of the Work requiring a Shop Drawing or
Sample submittal which has not been approved.



5









 






     11. Substitutes and “or-equal”. Evaluate and determine the acceptability of
substitute or “or-equal” materials and equipment proposed by Contractor, but subject to the
provisions of paragraph A2.02.A.2 of this Exhibit A.




     12. Inspections and Tests. Require such special inspections or tests of Contractor’s
work as deemed reasonably necessary, and receive and review all certificates of
inspections, tests, and approvals required by Laws and Regulations or the Contract
Documents. ENGINEER’S review of such certificates will be for the purpose of determining
that the results certified indicate compliance with the Contract Documents and will not
constitute an independent evaluation that the content or procedures of such inspections,
tests, or approvals comply with the requirements of the Contract Documents. ENGINEER shall
be entitled to rely on the results of such tests.




     13. Disagreements between OWNER and Contractor. Render formal written decisions on
all claims of OWNER and Contractor relating to the acceptability of Contractor’s work or
the interpretation of the requirements of the Contract Documents pertaining to the
execution and progress of Contractor’s work. In rendering such decisions, ENGINEER shall
be fair and not show partiality to OWNER or Contractor and shall not be liable in
connection with any decision rendered in good faith in such capacity.




     14. Applications for Payment. Based on ENGINEER’S observations as an experienced and
qualified design professional and on review of Applications for Payment and accompanying
supporting documentation:




     a. Determine the amounts that ENGINEER recommends Contractor be paid. Such
recommendations of payment will be in writing and will constitute ENGINEER’S
representation to OWNER, based on such observations and review, that, to the best
of ENGINEER’S knowledge, information and belief, Contractor’s work has progressed
to the point indicated, the quality of such work is generally in accordance with
the Contract Documents (subject to an evaluation of the Work as a functioning whole
prior to or upon Substantial Completion, to the results of any subsequent tests
called for in the Contract Documents and to any other qualifications stated in the
recommendation), and the conditions precedent to Contractor’s being entitled to
such payment appear to have been fulfilled in so far as it is ENGINEER’S
responsibility to observe Contractor’s work. In the case of unit price work,
ENGINEER’S recommendations of payment will include final determinations of
quantities and classifications of Contractor’s work (subject to any subsequent
adjustments allowed by the Contract Documents) and materials delivered at the Site
but not incorporated in the Work. The responsibilities of ENGINEER contained in
paragraph A1.05.A.6a are expressly subject to the limitations set forth in
paragraph AI.05.A.6.b and other express or general limitations in this Agreement
and elsewhere.




     b. By recommending any payment, ENGINEER shall not thereby be deemed to have
represented that observations made by ENGINEER to check the quality or quantity of
Contractor’s work as it is performed and furnished have been exhaustive, extended
to every aspect of Contractor’s work in progress, or involved detailed inspections
of the Work beyond the responsibilities specifically assigned to ENGINEER in this
Agreement and the Contract Documents. Neither ENGINEER’S review of Contractor’s
work for the purposes of recommending payments nor ENGINEER’S recommendation of any
payment including final payment will impose on ENGINEER responsibility to
supervise, direct, or control Contractor’s work in progress or for the means,
methods, techniques, sequences, or procedures of construction or safety precautions
or programs incident thereto, or Contractor’s compliance with Laws and Regulations
applicable to Contractor’s furnishing and performing the Work. It will also not
impose responsibility on ENGINEER to make any examination to ascertain how or for
what purposes Contractor has used the monies paid on account of the Contract Price,
or to determine that title to any portion of the work in progress, materials, or
equipment has passed to OWNER free and clear of any liens, claims, security
interests, or encumbrances, or that there may not be other matters at issue between
OWNER and Contractor that might affect the amount that should be paid.




     15. Contractor’s Completion Documents.




     a. Receive and review maintenance and operating instructions, schedules, and
guarantees.




     b. Receive bonds, certificates, or other evidence of insurance not previously
submitted and required by the Contract Documents, certificates of inspection, tests
and approvals, Shop Drawings, Samples and other data approved as provided under
paragraph A1.05.A. 10, and the annotated record documents which are to be assembled
by Contractor in accordance with the Contract Documents to



6









 







obtain final payment. The extent of such ENGINEER’S review will be limited as
provided in paragraph A1.05.A. 10.




     c. ENGINEER shall transmit these documents to OWNER.




     16. Substantial Completion. Promptly after notice from Contractor that Contractor
considers the entire Work ready for its intended use, in company with OWNER and Contractor,
conduct an inspection to determine if the Work is Substantially Complete. If after
considering any objections of OWNER, ENGINEER considers the Work Substantially Complete,
ENGINEER shall deliver a certificate of Substantial Completion to OWNER and Contractor. If
ENGINEER does not agree that the requirements for Substantial Completion have been met,
ENGINEER shall submit to Contractor a list of observed items requiring completion or
correction.




     17. Additional Tasks. Perform or provide the following additional Construction phase
tasks or deliverables: NONE




     18. Final Notice of Acceptability of the Work. Conduct a final inspection to
determine if the completed Work of Contractor is acceptable so that ENGINEER may recommend,
in writing, final payment to Contractor. Accompanying the recommendation for final
payment, ENGINEER shall also provide a notice in the form attached hereto as Exhibit E (the
“Notice of Acceptability of Work “) that the Work is acceptable (subject to the provisions
of paragraph A1.05.A.14.b) to the best of ENGINEER’S knowledge, information, and belief and
based on the extent of the services provided by ENGINEER under this Agreement.



B. Duration of Construction Phase. The Construction Phase will commence with the execution of the
first Construction Agreement for the Project or any part thereof and will terminate upon written
recommendation by ENGINEER for final payment to Contractors. If the Project involves more than one
prime contract as indicated in paragraph Al.03.C, Construction Phase services may be rendered at
different times in respect to the separate contracts.



C. Limitation of Responsibilities. ENGINEER shall not be responsible for the acts or omissions of
any Contractor, or of any of their subcontractors, suppliers, or of any other individual or entity
performing or furnishing any of the Work. ENGINEER shall not be responsible for failure of any
Contractor to perform or furnish the Work in accordance with the Contract Documents.



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.




7









 






	6.	 	Providing renderings or models for OWNER’S use.






	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 constructibility 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.
	 
	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.





END




8









 








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









 












	 	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




2









 








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 estimated to be $10,000.00
based on the following assumed distribution of compensation:



	 	 	 	 	 
	a. Study & Report Phase (assume 100 hrs.)
	 	$	10,000.00	 
	b. Construction Phase
	 	$	10,000.00	 






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.



1









 





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 4.00 % 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% (Lump Sum Fee)
	c. Final Design Phase- Track Design
	 	50% (Lump Sum Fee)
	d. Additional Services
	 	Not included
	e. Bidding and Negotiating Phase
	 	$7,500.00
	f. Construction Phase
	 	See Hourly Payment







	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




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ATTACHMENT 1




STANDARD HOURLY RATES

FOR YEAR 2006




	 	 	 	 	 
	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







 









 





TYPICAL TRACK DESIGN & CONSTRUCTION SCHEDULE

Traditional Design-Bid-Build Process




	 	 
	


	 BY ANTIOCH


 By Owner/Others

 By Main Line RR







	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	Month	 	Month	 	Month	 	Month	 	Month	 	Month	 	Month	 	Month	 	Month	 	Month	 	Month	 	Month
	PHASE	 	 	 	1	 	2	 	3	 	4	 	5	 	6	 	7	 	8	 	9	 	10	 	11	 	12
	 
	I.	 	STUDY & REPORT PHASE
	 		 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Conceptual Track Layout
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Conceptual Plant Layout
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Environ. & Permit Research
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Historical Preservation Research
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Preliminary Cost Estimate
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Client Review & Approval
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	II.	 	PRELIMINARY DESIGN PHASE
	 	 	 	 	 		 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Surveys
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Grading Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Hydrology & Drainage Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Bridge Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Geotechnical Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Plant Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Utility Coordination
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Permit Applications
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	ROW Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Prelim Design Cost Est.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Client Review & Approval
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	III.	 	FINAL DESIGN PHASE
	 	 	 	 	 	 		 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Track Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Bridge Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Geotechnical Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Plant Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Utility Coordination
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Permit Issuance
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	ROW Acquisition
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Final Design Cost Est.
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Client Review & Approval
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	IV.	 	BIDDING PHASE
	 	 	 	 	 	 	 	 	 	 	 		 	 	 	 	 	 	 	 	 	 
	 	 	Bidding Documents
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Notice to Bidders
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Prebid Conference
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Bid Opening
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Award
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	V.	 	CONSTRUCTION PHASE
	 	 	 	 	 	 	 	 	 	 	 	 	 	
	 	 	Contract Documents
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Preconstruction Conference
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Mobilization
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Grading Construction
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	 	 	Bridge Construction
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Track Construction
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 
	RAILROAD APPROVALS & CONSTRUCTION	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	RR Concept Approval
	 	 	 		 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	RR Final _______ Approval
	 	 	 	 	 	 	 	 	 	 	 		 	 	 	 	 	 	 	 	 	 
	 	 	RR Track & Signal Design
	 	 	 	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 
	 	 	Industrial Track _________ Prep
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	         	 	 	 	 	 
	 	 	RR M_______ & Sch_______
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 		 	 
	 	 	RR Track & Signal Installation
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
	 	 	Final ____________________
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





 









 








ATTACHMENT 3




NON-DISCLOSURE AGREEMENT




WHEREAS, ANTIOCH and OWNER, each of which may be referred to herein individually as a “Party” and
collectively as “Parties”, wish to exchange information that is confidential or proprietary to each
of them in order to explore the potential for constructing OWNER’S project as defined in the
Standard Form of Agreement Between OWNER and ENGINEER for Professional Services.



IN CONSIDERATION of the mutual terms and conditions of this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, ANTIOCH and OWNER,
intending to be legally bound, do hereby agree as follows:



1. Confidential Information:





1.1 Definition of Confidential Information: “Confidential Information” of ANTIOCH
and OWNER, respectively, shall mean the following information disclosed by one Party
(hereinafter the “Disclosing Party”) to the other Party (hereinafter the “Receiving Party”)
during the course of this Agreement: (a) all information about or related to the business
of either Party, including without limitation, plans, customers or customer lists,
operating costs, prices it has offered or obtained for its products or technology, and (b)
all technical information of either Party, including without limitation, processes,
inventions, designs, drawings, methods, systems, test data, and specifications.




1.2 Exclusions: “Confidential Information” shall not, however, include information
which the Receiving Party can demonstrate: (a) was in its possession prior to receipt from
the Disclosing Party; (b) was in the public domain at the time of disclosure or thereafter
enters into the public domain through no breach of this Agreement by the Receiving Party or
is in general use in the trade without violation by the Receiving Party of this Agreement,
or violation by any other party of an obligation not to disclose it; or (c) was disclosed
to the Receiving Party by someone other than the Disclosing Party who was under no
obligation not to disclose it.



2. No Use or Disclosure: Neither Party shall, without the other’s express written
permission (a) divulge, disclose or communicate any Confidential Information of the other to anyone
other than its employees who need to have access to such information for the purpose set forth
above, or (b) use any such Confidential Information for any purpose other than for the purpose set
forth above.



3. Term and Termination: The term of this Agreement shall commence on the date first
written above and shall continue until terminated by written notice of either Party to the other.
Each of the Parties’ obligations under Section 2 above, however, shall survive until such time, if
ever, that the Confidential Information falls within one or more of the exclusions set forth at
Section l.2 above. Within thirty (30) days of termination of this Agreement each Party shall
deliver to the other all of the Confidential Information that it has received from the other in
tangible form, and all copies thereof, shall destroy all documents and other tangible items
containing any of such Confidential Information and shall certify to the other in writing that it
has done so.



4. No License or Other Rights: Nothing in this Agreement shall constitute or otherwise be
construed as granting to either Party any interest or license in any Confidential Information of
the other, or creating any obligation on the part of either of the Parties hereto to enter into any
further agreement or business arrangement.



5. Remedies for Breach: Each Party agrees that any breach of this Agreement shall cause the
other irreparable harm. Accordingly, and in addition to any other remedies that either may have at
law or in equity, it shall be entitled to obtain injunctive relief against the breaching Party to
prevent any continuing breach, and without posting or filing any bond or other security. All
costs, expenses and attorney’s fees resulting from the litigation or arbitration of any claim under
this Agreement shall be paid by the losing party to the prevailing party.



1









 





6. Export Control: Each Party hereby agrees that, except as allowed under applicable U.S.
Export license provisions, no technical information furnished to either party hereunder shall be
disclosed to any non-U.S. national, firm, or country, including foreign nationals employed by or
associated with either party, nor shall either party allow any re-export of any technical
information without first complying with all applicable U.S. Government export control laws and
regulations.



7. General Provisions:





7.1 Severability: If for any reason a court of competent jurisdiction or an award
in arbitration finds any provision of this Agreement to be unenforceable, the Parties
hereto agree that they shall amend this Agreement to allow for enforcement to the maximum
extent enforceable and the remainder of this Agreement shall continue in full force and
effect.




7.2 Choice of Law: This Agreement shall be governed by and construed under the laws
of the State of Nebraska, without regard to the choice of law provisions thereof.




7.3 Assignment: This Agreement may not be assigned by either Party to any other
party.




7.4 Survival of Terms: The obligations of the Parties under Section 2 of this
Agreement shall survive as provided under Section 3 above, and the Parties obligations
under Section 5 of this Agreement shall survive termination of this Agreement.




7.5 Headings and Captions: The headings and captions in this Agreement are for
convenience only and are not to be considered in construing this Agreement. All references
to any article, section or paragraph numbers shall be deemed to be references to an
article, section or paragraph of this Agreement unless otherwise expressly stated.




7.6 No Waiver: Failure by any Party to this Agreement to enforce any provision of
this Agreement with respect to any breach thereof, shall not be deemed a waiver of any
right to enforce any other breach of this Agreement.




7.7 Notices: Any notice required or permitted to be given under this Agreement
shall be given in writing and shall be addressed to: ANTIOCH and OWNER as referenced in the
Standard Form of Agreement Between Owner and Engineer for Engineering Services.




7.8 Entire Agreement: This Agreement constitutes the entire agreement between the
Parties hereto with respect to the subject matter hereof and supersedes any prior
agreement, written or oral, related to such subject matter. This Agreement may not be
amended or altered in any way except by written agreement signed by all Parties hereto.



2