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[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED
PORTIONS. 


EXHIBIT 10.9  


DBIA  


 [LOGO]  


 DESIGN-BUILD

INSTITUTE OF AMERICA  


 Standard Form of Agreement Between

Owner and Design-Builder—Lump Sum  


This document has important legal consequences. Consultation with an attorney is recommended with

respect to its completion or modification. 





        This  AGREEMENT is made as of the 9th day of September in the year of 2005, by and between the following parties, for services in
connection with the Project identified below. 


OWNER:
  (Name and address)


Aventine
Renewable Energy, Inc.

1300 South 2nd Street

Pekin, IL 61554 



DESIGN-BUILDER:
  (Name and address)


Fagen, Inc.

501 W. Highway 212

P.O. Box 159

Granite Falls, MN 56241 


PROJECT:
  (Include Project name and location

as it will appear in the Contract Documents)


55
MGY Dry Grind Ethanol Plant

at Pekin, Illinois 


In
consideration of the mutual covenants and obligations contained herein, Owner and Design-Builder agree as set forth herein. 








  



 
 

Article 1    
    
    Scope of Work    
    


1.1    Design-Builder shall perform all design and construction services, and provide all material, equipment, tools and labor, necessary to
complete the Work described in and reasonably inferable from the Contract Documents. 


 
 

Article 2    
    
    Contract Documents    
    


2.1    The Contract Documents are comprised of the following: 



	.1
	All written modifications, amendments and change orders to this Agreement issued in accordance with DBIA Document No. 535,  Standard Form of General Conditions of
Contract Between Owner and Design-Builder(1998 Edition) ("General Conditions of Contract"):




	.2
	This Agreement, including all exhibits and attachments, executed by Owner and Design-Builder, said Exhibits being: 








Exhibit A—Performance Guarantee Criteria—(2) Pages;

Exhibit B—General Project Scope—(3) Pages;

Exhibit C—Owner's Responsibilities—(17) Pages;

Exhibit D—License of Proprietary Property of ICM, Inc.—(6) Pages;

Exhibit E—Start-up Services to be Provided to Owner (1) Page;

Exhibit F—Schedule of Values (1) Page; Exhibit G—Project Milestones (1) Page.




	.3
	Written Supplementary Conditions, consisting of six pages, to the General Conditions of Contract;



	.4
	The General Conditions of Contract;



	.5
	Preliminary Construction Documents prepared by Design-Builder; and



	.6
	The following other documents, if any: N/A 



 
 

Article 3    
    
    Interpretation and Intent    
    


3.1    The Contract Documents are intended to permit the parties to complete the Work and all obligations required by the Contract Documents
within the Contract Time(s) for the Contract Price. The Contract Documents are intended to be complementary and interpreted in harmony so as to avoid conflict, with words and phrases interpreted in a
manner consistent with construction and design industry standards. In the event of any inconsistency, conflict, or ambiguity between or among the Contract Documents, the Contract Documents shall take
precedence in the order in which they are listed in Section 2.1 hereof. 


3.2    Terms, words and phrases used in the Contract Documents, including this Agreement, shall have the meanings given them in the
Supplementary Conditions and General Conditions of Contract. 


3.3    The Contract Documents form the entire agreement between Owner and Design-Builder and by incorporation herein are as fully binding on
the parties as if repeated herein. The Contract Documents supercede any prior letters of intent between the parties, and such letters of intent are now null and void. No oral representations or other
agreements have been made by the parties except as specifically stated in the Contract Documents. 


2







 


 
 

Article 4    
    
    Ownership of Work Product    
    


4.1    Work Product.    All drawings, specifications and other documents and electronic data furnished by Design-Builder to Owner
under this Agreement ("Work Product") are deemed to be instruments of service and Design-Builder shall retain the ownership and property interests therein, including the copyrights thereto. 


4.2    Owner's Limited License Upon Payment in Full.    Upon Owners payment in full for all Work performed under the Contract
Documents, Design-Builder shall vest in Owner a limited license to use the Work Product in connection with Owner's occupancy, operation, maintenance and repair of the Project and Design-Builder shall
provide Owner with a copy of the "as built" plans, conditioned on Owner's express understanding that its use of the Work Product and its acceptance of the "as built" plans is at Owner's sole risk and
without liability or legal exposure to Design-Builder or anyone working by or through Design-Builder, including Design Consultants of any tier (collectively the "Indemnified Parties"), provided,
however, that any performance guarantees and warranties (of equipment or otherwise) shall remain in effect according to the terms of this Agreement. Owner shall be entitled to use the Work Product for
the purpose relating to this Project, but shall not be entitled to use the Work Product on any other projects, including expansion of this Project. In addition, in the event Owner has disputed any
amounts billed by Design-Builder under this Agreement pursuant to Section 6.3.1 of the General Conditions of Contract, Design-Builder shall vest in Owner a limited license to use the Work
Product in connection with Owner's occupancy, operation, maintenance and repair of the Project until such time as the amounts so disputed by Owner are finally determined pursuant to the provisions of
such Section 6.3.1, and if necessary pursuant to Article 10 of the General Conditions; provided, upon such final determination any amounts found to be owed by Owner shall be
promptly paid by Owner to Design-Builder and if not so timely paid such limited license shall terminate. The limited license to use the Work Product granted herein by Design-Builder to Owner shall be
governed by and construed in accordance with the same terms and provisions contained in the License Agreement between Owner and ICM, attached hereto as Exhibit D and incorporated herein by
reference thereto, except (i) references in such License Agreement to ICM and Proprietary Property shall refer to Design-Builder and Work Product, respectively, and (ii) the arbitration
provisions contained in Article 10 of the General Conditions shall apply to any breach or threatened breach of Owner's duties or obligations under such limited license other than Design-Builder
shall have the right to seek injunctive relief in a court of competent jurisdiction against Owner or its Representatives for any such breach or threatened breach. Design-Builder is utilizing certain
proprietary property and information of ICM, Inc., a Kansas corporation ("ICM"), in the design and construction of the Project, and Design-Builder may incorporate proprietary property and
information of ICM into the Work Product. Owner's use of the proprietary property and information of ICM shall be governed by the terms and provisions of the License Agreement between Owner and ICM,
attached hereto as Exhibit D, to be executed by such parties in connection with the execution of this Agreement. The preceding last three sentences of this paragraph also apply to Articles 4.3
and 4.4 below. 


4.3    Owner's Limited License Upon Owner's Termination for Convenience or Design-Builder's Election to Terminate.    If Owner
terminates the Project for its convenience as set forth in Article 8 hereof, or if Design-Builder elects to terminate this Agreement in accordance with Section 11.4 of the General
Conditions of Contract, Design-Builder shall, then upon Owner's payment in full of the amounts due Design-Builder under the Contract Documents, vest in Owner a limited license to use the Work Product
to complete the Project and subsequently occupy, operate, maintain and repair the Project, subject to the following: 



	.1
	Use of the Work Product is at Owner's sole risk without liability or legal exposure to any Indemnified Party; provided, however, that
any "pass through" warranties regarding equipment or express warranties regarding equipment provided by this Agreement shall remain in effect according to their terms; and



	.2
	If the termination for convenience is by Owner or if Design-Builder elects to terminate this Agreement in accordance with
Section 11.4 of the General Conditions of Contract, then Owner agrees to pay Design-Builder the additional sum of [*] as compensation for the limited right to use the
Work Product (completed "as is" on the date of termination) in accordance with this Article 4. 




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4.4    Owner's Limited License Upon Design-Builder's Default.    If this Agreement is terminated due to Design-Builder's default
pursuant to Section 11.2 of the General Conditions of Contract and (i) it is determined that Design-Builder was in default and (ii) Owner has fully satisfied all of its
obligations under the Contract Documents through the time of Design-Builder's default, then Design-Builder shall grant Owner a limited license to use the Work Product in connection with Owner's
completion and occupancy, operation, maintenance and repair of the Project. This limited license is conditioned on Owner's express understanding that its use of the Work Product is at Owner's sole
risk and without liability or legal exposure to any Indemnified Party; provided, however, that any "pass through" warranties regarding equipment or express warranties regarding equipment provided by
this Agreement shall remain in effect according to their terms. This limited license would grant Owner the ability to repair the Project at Owner's discretion. 


4.5    Owner's Indemnification for Use of Work Product.    If Owner uses the Work Product under any of the circumstances identified
in this Article 4, Owner shall defend, indemnify and hold harmless the Indemnified Parties from and against any and all claims, damages, liabilities, losses and expenses, including attorneys'
fees, arising out of or resulting from the use of the Work Product; provided, however, that any "pass through" warranties regarding equipment or express warranties regarding equipment provided by this
Agreement shall remain in effect according to their terms 


 
 

Article 5    
    
    Contract Time    
    


5.1    Date of Commencement.    The Work shall commence within five (5) days of Design-Builder's receipt of Owner's written
Notice to Proceed ("Date of Commencement") unless the parties mutually agree otherwise in writing. The parties agree that a valid Owner's Notice to Proceed cannot be given until: 1) Owner has
title to the real estate on which the project will be constructed; 2) a Letter of Commitment for all necessary financing to construct the project is received; 3) the Phase I and Phase II
site work required of Owner, as described in Exhibit "C" is completed along with Phase II redline drawings: 4) the air permit(s) and/or other applicable local, state or federal permits
necessary so that construction can begin, have been obtained; 5) it appears reasonable that financial close on the Letter of Commitment will occur within sixty (60) days of the issuance
of said Notice to Proceed; and 6) Owner shall execute a sales tax exemption certificate and provide to Design-Builder. Design-Builder must receive a valid Owner's Notice to Proceed within
180 days of the signing of this Agreement; otherwise,
the Contract Price referred to in Section 6.1 is subject to a price increase. Such price increase to be agreed to by the Parties and negotiated in good faith. 


5.2    Substantial Completion and Final Completion 


5.2.1    Substantial Completion of the entire Work shall be achieved no later than [*] calendar days after the Date of
Commencement. 


5.2.2    Interim milestones and/or Substantial Completion of identified portions of the Work shall be achieved as follows: Owner shall provide
the following within 90 days of Design-Builder's receipt of Owner's Notice to Proceed, as described in Section 5.1 of this Agreement: 



	•
	Owner
shall determine its water source and provide Design-Builder an independent analysis of the water source, and



	•
	Owner
shall provide the name of its property/all risk insurance carrier and the specific requirements for fire protection. 




The
two bulleted requirements referred to above are further detailed in Exhibit C. The Scheduled Substantial Completion date will likewise be extended a corresponding amount of days for each
day Owner exceeds the 90-day timeframe referred to above in Section 5.2.2. 


5.2.3    Final Completion of the Work or identified portions of the Work shall be achieved as expeditiously as reasonably practicable. 


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5.2.4    All of the dates set forth in this Article 5 ("Contract Time(s)") shall be subject to adjustment in accordance with the
General Conditions of Contract. Specifically, if delays in the Contract Time occur because of delay in the delivery of materials or equipment that is beyond the control of Design-Builder, the Contract
Time will be adjusted, without penalty to Design-Builder, pursuant to Sections 8.2.1 and 8.2.2 of the General Conditions of Contract. 


5.3    Time is of the Essence.    Owner and Design-Builder mutually agree that time is of the essence with respect to the dates and
times set forth in the Contract Documents. 


5.4    Early Completion Bonus.


5.4.1    If Substantial Completion is attained within [*] after the Date of Commencement, Owner shall pay
Design-Builder at the time of Final Payment under Section 7.3 hereof an early completion bonus of [*] per day, for each day that Substantial Completion occurred in
advance of said [*] days. 


5.4.2    In all events, payment of said bonus, if applicable, at the time of Final Payment is subject to release of funds by senior lender. If
senior lender does not allow release of funds at the time of Final Payment to pay said early completion bonus in full, any unpaid balance shall be converted to an unsecured Promissory Note payable by
Owner to Design-Builder, accruing interest at ten percent (10%). On each anniversary of the Note, any unpaid accrued interest shall be converted to principal and shall accrue interest as principal
thereafter. Owner shall pay said Promissory Note as soon as allowed by senior lender; in any event, the Note, plus accrued interest, shall be paid in full before Owner pays or makes any distributions
to or for the benefit of its owners (shareholders, members, partners, etc.). All payments shall be applied first to accrued interest and then to principal. 


 
 

Article 6    
    
    Contract Price    
    


6.1    Contract Price.    Owner shall pay Design-Builder in accordance with Article 6 of the General Conditions of Contract
the sum of [*] ("Contract Price") subject to adjustments made in accordance with the General Conditions of Contract. The Contract Price includes a [*]
for the union labor that will be used for construction of the [*]. Unless otherwise provided in the Contract Documents, the Contract Price is deemed to include all sales, use,
consumer and other taxes mandated by applicable Legal Requirements. 



6.2    Markups for Changes.    The parties agree that changes shall not occur pursuant to Sections 9.4.1.3 or 9.4.1.4 of the General
Conditions of Contract, but may occur pursuant to the other provisions therein. 


6.3    Failure to Obtain Financing.    Owner and Design-Builder agree that this Agreement is conditioned on Owner receiving
financing or a complete full funding commitment for such financing within 180 days of the signing of this Agreement. If Owner has not received financing or a complete full funding commitment
for such financing within 180 days of the signing of this Agreement, this Agreement shall terminate. 


 
 

Article 7    
    
    Procedure for Payment    
    


7.0    Payment at Financial Close.    As part of the Contract Price, Owner shall pay Design-Builder [*] as
soon as allowed by its organizational documents, the Escrow Agreement and any other relevant agreements or laws (such payment to possibly occur prior to Financial Close, but at the latest, at
Financial Close) as a down payment fee (such fee includes [*] for mobilization and [*] for engineering). A break-down of such fee is
provided in Exhibit F, Schedule of Values. Financial Close is defined as Owner executing final loan documents obtaining all necessary financing to construct the project and funds are available
to pay disbursements. Said [*] Dollar payment shall be subject to the retainage as provided by Article 7.2.1. 


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7.1    Progress Payments


7.1.1    Design-Builder shall submit to Owner on the twenty-fifth (25th) day of each month, beginning with the first month after the Date of
Commencement, Design-Builder's Application for Payment in accordance with Article 6 of the General Conditions of Contract. 


7.1.2    Owner shall make payment within ten (10) days after Owner's receipt of each properly submitted and accurate Application for Payment
in accordance with Article 6 of the General Conditions of Contract, but in each case less the total of payments previously made, and less amounts properly withheld under Section 6.3 of
the General Conditions of Contract. 


7.2    Retainage on Progress Payments  


7.2.1    Owner will retain [*] of each payment. 


7.2.2    Upon Substantial Completion of the entire Work pursuant to Section 6.6 of the General Conditions of Contract, Owner shall
release to Design-Builder all retained amounts relating, as applicable, to the entire Work, less an amount equal to the expected cost to complete all remaining or incomplete items of Work as noted in
the Certificate of Substantial Completion, provided that such payment shall only be made if Design-Builder has met the Performance Guarantee Criteria listed in Exhibit A. 


7.3    Final Payment.    Design-Builder shall submit its Final Application for Payment to Owner in accordance with
Section 6.7 of the General Conditions of Contract. Owner shall make payment on Design-Builder's properly submitted and accurate Final Application for Payment within thirty (30) days after
Owner's receipt of such Final Application for Payment, provided that Design-Builder has satisfied the requirements for final payment set forth in Section 6.7.2 of the General Conditions of
Contract and Design-Builder has met the Performance Guarantee Criteria listed in Exhibit A. 


7.4    Interest.    Payments which are due and unpaid by Owner to Design-Builder, whether progress payments or final payment, shall
bear interest commencing five (5) days after payment is due at the rate of [*] percent [*] per annum. 


7.5    Record Keeping and Finance Controls.    With respect to changes in the Work performed on a cost basis by Design-Builder
pursuant to the Contract Documents, Design-Builder shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management, using accounting and control
systems in accordance with generally accepted accounting principles and as may be provided in the Contract Documents. During the performance of the Work and for a period of three (3) years
after Final Payment, Owner and Owner's accountants shall be afforded access from time to time, upon reasonable notice, to Design-Builder's records, books, correspondence, receipts, subcontracts,
purchase orders, vouchers, memoranda and other data relating to changes in the Work performed on a cost basis in accordance with the Contract Documents, all of which Design-Builder shall preserve for
a period of three (3) years after Final Payment. 


 
 

Article 8    
    
    Termination for Convenience    
    


8.1    Upon [*] days' written notice to Design-Builder, Owner may, for its convenience and without cause, elect to
terminate this Agreement. In such event, Owner shall pay Design-Builder for the following: 



	.1
	All Work executed, and for proven loss (but not loss of profit), cost or expense in connection with the Work;



	.2
	The reasonable costs and expenses attributable to such termination, including demobilization costs and amounts due in settlement of
terminated contracts with Subcontractors and Design Consultants; and 




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	.3
	Overhead and profit margin in the amount of [*] percent [*] on the sum of items .1 and
..2 above, except that overhead and profit shall not be due regarding amounts due in settlement of terminated contracts with subcontractors and design consultants. 




8.2    In addition to the amounts set forth in Section 8.1 above, Design-Builder shall be entitled to receive all retainage withheld by
Owner. 



8.3    If Owner terminates this Agreement pursuant to Section 8.1 above and proceeds to design and construct the Project through its
employees, agents or third parties, Owner's rights to use the Work Product shall be as set forth in Section 4.3 hereof. 


 
 

Article 9    
    
    Representatives of the Parties    
    



9.1    Owner's Representatives


9.1.1    Owner designates the individual listed below as its Senior Representative ("Owner's Senior Representative"), which individual has the
authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual's name, title, address
and telephone numbers)



Jerry
L. Weiland, Vice President of Operations

1300 South 2nd St.

Pekin, IL 61559

Telephone: 309-347-9237 




9.1.2    Owner designates the individual listed below as its Owner's Representative, which individual has the authority and responsibility set
forth in Section 3.4 of the General Conditions of Contract: (Identify individual's name, title, address and telephone numbers)



Alejandro
"Alex" Toro

1300 South 2nd St.

Pekin, IL 61554

Telephone: 309-347-9284 




9.2    Design-Builder's Representatives


9.2.1    Design-Builder designates the individual listed below as its Senior Representative ("Design-Builder's Senior Representative"), which
individual has the authority and responsibility for avoiding and resolving disputes under Section 10.2.3 of the General Conditions of Contract: (Identify individual's
name, title, address and telephone numbers)



Roland
"Ron" Fagen, CEO and President

501 W. Highway 212

P.O. Box 159

Granite Falls, MN 56241

Telephone: 320 564-3324 




9.2.2    Design-Builder designates the individual listed below as its Design-Builder's Representative, which individual has the authority and
responsibility set forth in Section 2.1.1 of the General Conditions of Contract: (Identify individual's name, title, address and telephone
numbers)



Aaron
Fagen, Chief Operating Officer

501 W. Highway 212,

P.O. Box 159

Granite Falls, MN 56241

Telephone: 320 564-3324 




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Design
Builder's Representative shall be responsible for providing Design Builder-supplied information and approvals in a timely manner to permit Owner to fulfill its obligations under the Contract
Documents. Design Builder's Representative shall also provide Owner with prompt notice if it observes any failure on the part of Owner to fulfill its contractual obligations. 


 
 

Article 10    
    
    Bonds and Insurance    
    


10.1    Insurance.    Design-Builder shall procure in accordance with Article 5 of the General Conditions of Contract the
following insurance coverage for the duration of the Project: A certificate of insurance will be provided prior to starting construction. Policy limits shall be as follows: 



	 	Commercial General Liability:	 	 
	 	 	 	General Aggregate	 	[*]
	 	 	 	Products-Comp/Op AGG	 	[*]
	 	 	 	Personal & Adv Injury	 	[*]
	 	 	 	Each Occurrence	 	[*]
	 	 	 	Fire Damage (Any one fire)	 	[*]
	 	 	 	Med Exp (Any one person)	 	[*]
	 	
 Automobile Liability:	
 	

 
	 	 	 	Combined Single Limit	 	[*]
	 	
 Excess Liability—Umbrella Form	
 	

 
	 	 	 	Each Occurrence	 	[*]
	 	 	 	Aggregate	 	[*]
	
 Workers Compensation and Employers' Liability:	
 	

 
	 	Statutory Limits:	 	 
	 	 	 	Each Accident	 	[*]
	 	 	 	Disease-Policy Limit	 	[*]
	 	 	 	Disease-Each Employee	 	[*]





Owner
shall provide the following within 10 days of Design-Builder's receipt of Owner's Notice to Proceed: 



	•
	Owner
shall obtain a builder's risk policy naming Owner as the insured, with Design-Builder as additional insured, in an amount not less than the Contract Price.



	•
	Owner
shall also obtain Boiler and Machinery Insurance protecting Owner, Design-Builder, Design Consultants, Subcontracts and Subcontractors.



	•
	In
addition, Owner shall obtain terrorism coverage as described by the Terrorism Risk Insurance Act of 2002 ("TRIA"). If TRIA expires on 12-31-05
Owner will procure Terrorism coverage if commercially available at a reasonable price. 




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Article 11    
    
    Other Provisions    
    


11.1    Other provisions, if any, are as follows: 



	•
	Performance
Guarantee: The Design-Builder guarantees the Criteria listed in Exhibit A. If there is a performance shortfall, Design-Builder will pay all design and
construction costs associated with making the necessary corrections. Design-Builder retains the right to use its reasonable discretion in determining the method to remedy any performance related
issues; provided such method meets the requirements of Section 2.3.1. of the General Conditions of Contract and is consistent with the Project.



	•
	If
Owner, for whatever reason other than reasons beyond its control (specifically due to acts, omissions, conditions, events or circumstances beyond its control and due to
no fault of its own or those for whom Owner is responsible), prevents Design-Builder from demonstrating the Performance Guarantee Criteria within 30 days of Design-Builder's notice that the
Project is ready for Performance Testing, Design-Builder is thereby deemed to have fulfilled all of its Performance Guarantee obligations listed in Exhibit A.



	•
	Price
Guarantee: The Design-Builder guarantees the Contract Price for the Work delineated by the Contract Documents. Any and all price increases require Owner's approval.



	•
	Winter
Construction: Owner shall have no responsibility for any winter construction related activities including, but not limited to, special material costs, sheltering,
heating, and equipment rental, except that Owner shall pay all the reasonable costs incurred for frost removal including, but not limited to, equipment costs, equipment rental costs, and associated
labor costs so that winter construction can proceed.



	•
	Design-Builder
shall, throughout the performance of the Work, reasonably cooperate with Owner and perform its responsibilities, obligations and services in a timely manner
to facilitate Owner's timely and efficient performance of its obligations under the Contract Documents and so as not to delay or interfere with Owner's performance of its obligations under the
Contract Documents.



	•
	Design-Builder
shall obtain or cooperate in obtaining a performance bond if such a bond is requested by Owner. If the bond is obtained by Design-Builder, Owner shall pay
Design-Builder for the cost of the bond, plus pay Design-Builder a fee of [*], said fee calculated by multiplying [*] on [*]. If
purchased by Owner, Owner shall pay all costs of obtaining [*].



	•
	Design-Builder
warrants that within six (6) months following the date of Substantial Completion, the atmospheric emissions of the ethanol plant, when operating at
nameplate capacity shall meet the requirements as currently prescribed, as of the date hereof, by the State of Illinois Environmental Protection Agency. Verification shall be provided by a written
report from Design-Builder. 




In
executing this Agreement, Design-Builder represents that it has the necessary financial resources to fulfill its obligations under this Agreement and has the necessary corporate approvals to
execute this Agreement and perform the services described herein. Owner represents that it has the necessary organizational approvals to execute this Agreement; that Owner is seeking financing for the
project and that Owner agrees to keep Design-Builder informed of Owner's progress in obtaining commitments for and closing on such financing. 



	
 OWNER:	
 	

DESIGN-BUILDER:
	

Aventine Renewable Energy, Inc.
(Name of Owner)	
 	

Fagen Inc.
(Name of Design-Builder)
	

/s/ Jerry L. Weiland
	
 	

/s/ Roland Fagen

	

Jerry L. Weiland
	
 	

Roland "Ron" Fagen

	

V.P. Operations
	
 	

CEO and President

	

 	

9/9/05
	
 	

 	

9-20-05






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Design Build Contract
  Aventine Renewable Energy, Inc.
  September 9, 2005    
    


EXHIBIT A  


Performance Guarantee Criteria  


Table
1 



	Criteria
	 	Specification
	 	Testing Statement
	 	Documentation

	Plant Capacity—fuel grade ethanol	 	Operate at a rate of 55 million gallons per year of denatured fuel grade ethanol meeting the specifications of ASTM 4806 based on 353 days of operation per calendar year and [*] denaturant.	 	Seven day performance test	 	Production records and a written report by Design-Builder.
	

Corn to Ethanol Conversion ratio; [*]	
 	

Not be less than 2.80 denatured gallons of ethanol per bushel (56#) of corn	
 	

As determined by meter readings during a seven day performance test.	
 	

Production records and written analysis by Design-Builder.
	

Electrical Energy	
 	

0.75 kWh per denatured gallon of fuel grade ethanol [*]	
 	

As determined by meter readings during a seven day performance test.	
 	

Production records and written analysis by Design-Builder.
	

Natural Gas	
 	

Shall not exceed 34,000 Btu per denatured gallon of fuel grade ethanol. (This Performance Criteria relates to production of ethanol and excludes any natural gas usage that may occur for drying corn.)	
 	

As determined by meter readings during a seven day performance test.	
 	

Production records and written analysis by Design-Builder.





EXHIBIT A—continued  


DISCLAIMER:    Owner's failure to materially comply with the operating procedures issued by ICM, Inc./Fagen, Inc. shall void
those performance guaranties and warranties set forth in this Design-Build Agreement affected by such material non-compliance. 


Owner
understands that the startup of the plant requires resources and cooperation of the Owner, vendors and other suppliers to the project. Design-Builder disclaims any liability and Owner
indemnifies Design-Builder for non-attainment of the Performance Guarantee Criteria directly or indirectly caused by material non-performance or negligence of third parties not
retained by Design-Builder and who are under the control or direction of Owner. 


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   EXHIBIT B  


General
Project Scope 


Construct
a 55 million-gallon per year (MGY) dry mill fuel ethanol plant at Pekin, Illinois. The plant will grind approximately [*] million bushels of corn per year to
produce approximately 55 MGY of denatured fuel ethanol. The plant will also produce approximately [*] tons per year of 11% moisture dried distillers grains with solubles
(DDGS), and approximately [*] tons per year of raw carbon dioxide (CO2) gas. The plant will be equipped with [*] days of DDGS storage. 


Corn
will be supplied to the ethanol plant from the existing corn storage bin on-site. Design-Builder, as part of its design-build scope, shall install a [*] bushel
per hour leg and scalper, and a [*] bushel clean, corn bin above the three hammermills. Corn will be fed from the surge bin to the hammermills for grinding and further
processing in the plant. 


Ground
corn will be mixed in a slurry tank, routed through a pressure vessel and steam flashed off in a flash vessel. Cooked mash will continue through liquefaction tanks and into one of four
fermenters. Simultaneously, propagated yeast will be added to the mash as the fermenter is filling. After batch fermentation is complete, the beer will be pumped to the beer well and then to the beer
column to vaporize the alcohol from the mash. 


Alcohol
streams are dehydrated in the rectifier column, the side stripper and the molecular sieve system. Design-Builder will supply [*] sieve bottles and Owner will supply
[*] pounds of sieve beads to fill bottles. [*] is pumped to the existing tank farm day tank and blended with approximately [*]
percent natural gasoline as the product is being pumped into the existing final storage tanks. New tank farm tanks include: [*] tank for 190 proof storage. 


Corn
mash from the beer stripper is dewatered in the centrifuge(s). Wet cake from the centrifuge(s) is conveyed to the DDGS dryer system where the water is removed from the cake and the product is
dried to about 11% moisture. A combined modified wet or wet cake concrete pad is located along side the DDGS dryer building to divert modified wet or wet cake to the pad when necessary or for limited
production of modified wet or wet cake for sales. Water in the thin stillage is evaporated and sent to Owner's on-site treatment system. Syrup is added to the wet cake entering the dryer.
DDGS is pneumatically conveyed to flat storage in the DDGS storage building. Shipping is accomplished by scooping and pushing the product with a front-end loader into an infloor conveyor
system. The DDGS load out pit has capacity for approximately one semitrailer load or approximately 26 tons capacity based on a product density of 32 lbs/ ft3. DDGS is weighed with the
bulk weigh system prior to loading. 


Fresh
water for the boilers, cooking, cooling tower and other processes will be obtained from the Owner supplied water pretreatment system. Boiler water conditioned in regenerative softeners will be
pumped through a deaerator scrubber and into a deaerator tank. Appropriate boiler chemicals will be added as preheated water is sent to the boiler. 


Steam
energy will be provided by one Thermal Oxidizer (TO) driven heat recovery system utilizing a high percentage of condensate return to a condensate receiver tank. 


The
TO/Heat Recovery Steam Generator is a process used to thermally oxidize the exhaust gasses from the Dryers. This process will be used to reduce VOCs and particulates that are in the dryer exhaust
and ensure compliance with environmental regulations. The energy required to complete thermal oxidization will then be ducted to a waste heat boiler that will produce 100% of the steam requirements of
the ethanol plant. The exhaust gasses from the waste heat boiler will be ducted through stack gas economizer(s) to recover the maximum amount of energy possible from the exhaust gas stream. After the
economizer(s), the gas stream will be vented to atmosphere through a stack. 


The
process will be cooled by circulating water through heat exchangers, a chiller, and a cooling tower. 


[*]
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


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The
design includes a compressed air system consisting of [*] a receiver tank, pre-filter, coalescing filter, and double air dryer(s). The total capacity of the
compressed air system will be equal to [*] the capacity required for plant operation. 


The
design also incorporates the use of a clean-in-place (CIP) system for cleaning cook, fermentation, distillation, evaporation, centrifuges, and other systems.
[*] percent caustic soda is received by truck and stored in a tank. 


The
plant will have blowdown discharges from the cooling tower and may have water discharge from any water pre-treatment processes. Owner shall provide on-site connection to
sanitary sewer or septic system. 


Most
plant processes are computer controlled by a Siemens/Moore APACS distributed control system with graphical user interface and three workstations. The control room control console will have dual
monitors to facilitate operator interface between two graphics screens at the same time. Additional programmable logic controllers (PLCs) will control certain process equipment. Design Builder
provides lab equipment. 


The
cooking system requires the use of aqueous ammonia, and other systems require the use of sulfuric acid. Therefore, a storage tank for ammonia and a storage tank for acid will be on site to provide
the quantities necessary. The ammonia storage requires that plant management implement and enforce a Process Safety Management (PSM) program. 


The
plant design may require additional programs to ensure safety and to satisfy regulatory authorities. 


NOTE:
Exhibit B is a general description of the plant's basic operation. Not all equipment and equipment sizes quoted may be used on every plant. Site specific equipment and equipment sizes
will be determined during each plant's final design. 


[*]
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


2









   EXHIBIT C  


Owner's Responsibilities  


        The Owner shall perform and provide the permits, authorizations, services and construction as specifically described hereafter: 


	1)
	Land and Grading—Owner shall provide a site near or in Pekin, Illinois. Owner shall obtain all legal authority to use the
site for its intended purpose and perform technical due diligence to allow Design-Builder to perform including, but not limited to, proper zoning approvals, building permits, elevation restrictions,
soil tests, and water tests. The site shall be rough graded per Design-Builder specifications and be +/- three inches of final grade including the rough grading for Site roadways. The site soils shall
be modified as required to provide a minimum allowable soil bearing pressure as described in Table 1. 



Other
items to be provided by the Owner include, but are not limited to, the following: initial site survey (boundary and topographic) as required by the Design-Builder, layout of the property corners
including two construction benchmarks, Soil Borings and subsequent Geotechnical Report describing recommendation for Roads, foundations and if required, soil stabilization/remediation, land
disturbance permit, erosion control permit, site grading as described above with minimum soil standards, placement of erosion control measures, plant access road from a county, state or federal road
designed to meet local county road standards, plant storm and sanitary sewers, fire water system with hydrants and plant water main branches taken from the system to be within five feet of the
designated building locations, all tanks, motors and other equipment associated with or necessary to operate the fire water loop and associated systems, plant roads as specified and designed for the
permanent elevations and effective depth, "construction" grading plan as drawn (including site retention pond), plant water well and associated permit(s). Owner shall also provide the final grading,
seeding and mulching, and site fencing at the site. 


Owner
is encouraged to obtain preliminary designs/information and estimates of the cost of performing all Owner required permits and services as stated in this Exhibit C. Specifically, the cost
of the fire water systems (including associated fire water pumps, required tank, building (if required), sprinklers, and all other equipment and materials associated with the fire water delivery
systems) is estimated being in excess of [*] The requirements of each state and the decisions of each Owner will increase or decrease the actual cost. 


The
Owner's required activities related to site preparation for construction are to be divided into Phase I and Phase II activities as described below: 



Deliverables by Owner prior to start of Phase 1 Civil Design:



Procure
Boundary & Topographic Survey (to one foot contours) 


Procure
Soil Borings and Geotechnical Report with recommendations (at Design-Builder's requested locations and depth) 






Phase 1 (Deliverable Site):  


Design-Builder
provides engineering services to develop these items: 



	1.
	Final
Plant Layout with FFE and Top of Road Elevations 
	2.
	Final
Cut/Fill Quantity Calculations 




[*]
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


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	3.
	Grading
and Erosion Control Plan 
	4.
	Clear &
Grubbing Plan—graded to +/- 3" of subgrade. Subgrade is defined as 1' below proposed Building FFE and Administration Building FFE and 20" to 30" (based on
rail designer input) below top of rail for the rail spurs. Subgrade for the in-plant roads will be determined upon recommendations from the geotechnical engineer (12" to 24" below final
top of road) 




*
Owner shall prepare site according to Design-Builder's engineering plans for the above items. 


Plant
Access Road and all in-plant roads (which will act as base for final roadway system)

Soil Stabilization

Site Grading

Replacement Fill

Construction Layout (barking, laydown, access areas, temp. drainage and temp. facilities)

Storm Water Drainage & Detention 


Phase 2 Site Work (Final Civil Design Plans):  


Design-Builder
provides engineering services to develop these items:

                Site Utilities (Within Property Line): 



	1.
	Sanitary
Sewer System 
	2.
	Potable
Water Supply and Distribution 
	3.
	Process
Water Supply and Distribution 
	4.
	Gas
Supply and Distribution 
	5.
	Fire
Loop and Fire Protection System 
	6.
	Site
Electric 
	7.
	Site
Natural Gas 




Wells
and Well Pumps or other water source (supply of sufficient quantity for construction activities) Minimum 3 Phase, 480 Volt, 1,000 KVA Electrical Power Available for Construction at
Design-Builder specified locations. 


Design/Builder
shall be reimbursed on a "Time & Material" basis for any management of these Owner requirements and any design engineering requested by the Owner not otherwise required to be
provided by Design-Builder pursuant to this Agreement. 


	2)
	Permits—Owner shall obtain all operating permits including, but not limited to, air quality permits, in a timely manner to
allow startup of the plant as designed by Design-Builder. Owner shall obtain all testing and site inspections required to secure the necessary operating permits.



	3)
	Storm Water Runoff Permit—Owner shall obtain the construction storm—water runoff permit, permanent storm-water
runoff permit, and the erosion control/land disturbance permit.



	4)
	Illinois Pollutant Elimination Discharge Permit—Owner shall obtain a permit to discharge cooling tower water and reverse
osmosis ("R.O.") reject water and any other waste water directly to a designated waterway or other location. Owner shall supply the discharge piping to transport to the designated waterway or other
location.



	5)
	Natural Gas Supply and Service Agreement—Owner shall procure and supply a continuous supply of natural gas of at least
[*] at a minimum rate [*] and at a pressure of at least 200 psig at the plant site, then reduced to 60 psig for distribution to the use points. Pressure
reducing stations must be located so as to provide stable pressure and temperature at the point of use. Owner shall provide all gas piping to the use points and supply meters and regulators to provide
burner tip pressures as specified by Design-Builder. Owner shall also supply a digital flowmeter on-site with appropriate output for monitoring by the plant's computer control system.



	6)
	Electrical Service—The Owner is responsible to secure continuous service from an energy supplier to serve the facility. The
service from the energy supplier shall be of sufficient size to provide at a 



[*]
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


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	minimum
[*] of electrical capacity to the site. An on-site primary digital meter is also to be supplied for monitoring
of electrical usage and demand. This meter must have the capability to be monitored via a telephone line or other electrical signal. The site distribution system requirements, layout, and meters are
to be determined jointly by the Owner, the Design-Builder and the energy supplier. 



Design-Builder
will be providing soft start motor controllers for all motors greater than 150 horsepower and where demanded by process requirements. Owner is encouraged to discuss with its electrical
service supplier whether additional soft start motor controllers are advisable for this facility and such can be added, with any increased cost being an Owner's cost. 


Design-Builder
will provide power factor correction to 0.92 lagging at plant nameplate capacity. Owner is encouraged to discuss with its electrical service supplier any requirements for power factor
correction above 0.92 lagging. Additional power factor correction can be added with any increased cost being an Owner's cost. 



	7)
	Water Supply and Service Agreement—Owner shall supply a city water connection capable of providing a quantity of water which
includes process water, R.O. feed water, cooling tower make-up water, of a quality which will allow discharges to comply with NPDES limits. Owner should consider providing a redundant
supply source. Design-Builder shall provide the standard zeolite water softener system. Any increased costs incurred for another water treatment system if water does not meet the quality requirements
shall be the responsibility of the Owner. Owner will supply one process fresh water supply line terminating within five (5) feet of the point of entry designated by Design-Builder, one potable
supply line terminating within five (5) feet of the process building at a point of entry designated by Design-Builder, and one potable supply line to the administration building at a point of
entry designated by administration building contractor. 



Owner
is advised that most projects require a reverse osmosis system. Such system is [*] and Owner is advised that the purchase and installation cost of such a reverse osmosis
system may exceed [*]. Owner is also advised that such systems may be leased if Owner desires to avoid the costs of owning such a system. 



	8)
	Wastewater Discharge System, Permits and/or Service Agreement—Owner shall provide a connection to municipal system as
required for the sanitary sewer requirements of the Plant. These provisions shall comply with all federal, state, and local regulations, including any permitting issues.



	9)
	Roads and Utilities—Owner shall provide and maintain the ditches and permanent roads, including the gravel, pavement or
concrete, with the roads passing standard compaction tests. (Design-Builder will maintain aggregate construction roads during construction of the Plant and will return to original
pre-construction condition prior to Owner completing final grade and surfacing.) 



Except
as otherwise specifically stated herein the Owner shall install all utilities so that they are within five (5) feet of the designated building/structure locations. 



	10)
	Administration Building—The administration building—one story free standing, office computer system, telephone
system, office copier and fax machine and office furniture and any other office equipment and personal property for the administration building shall be the sole and absolute cost and responsibility
of Owner and Design-Builder shall have no responsibility in regards thereto.



	11)
	Maintenance and Power Equipment—The maintenance and power equipment as described in Table 2 and any other maintenance and
power equipment as required by the plant or desired by Owner shall be the sole and absolute cost and responsibility of Owner and Design-Builder shall have no responsibility in regards thereto.



	12)
	Railroads—Owner is responsible for any costs associated with the railroads including, but not limited to, all rail design
and engineering and construction and Design-Builder shall have no responsibility in regards thereto. 



[*]
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


3







 
	13)
	Drawings—Owner shall supply drawings to Design-Builder of items supplied under items 10) and 12) and also
supply Phase II redline drawings.



	14)
	Fire Protection System—Fire protection system requirements vary by governmental requirements per location and by insurance
carrier requirements. Owner is responsible to provide the required fire protection system for the Plant. This may include storage tanks, pumps, underground fire water mains, fire hydrants, foam or
water monitor valves, sprinkler systems, smoke and heat detection, deluge systems, or other provisions as required by governmental codes or Owner's insurance carrier's fire protection criteria.
Design-Builder will provide assistance to the Owner on a "Time & Material" basis for design and/or construction of the Fire Protection Systems required for the plant. 



Additional
detail regarding the Owner's and Design-Builder's responsibilities can be found in Table 3. 




Table 1 Minimum Soil Bearing Pressure—Responsibility of Owner  



	Description
 
	 	Required Allowable Soil Bearing Pressure

(pounds per square foot)

	Cook Water Tank	 	3,500
	Methanator Feed Tank	 	3,500
	Liquifaction Tank #1	 	3,500
	Liquifaction Tank #2	 	3,500
	Fermentation Tank #1	 	4,000
	Fermentation Tank #2	 	4,000
	Fermentation Tank #3	 	4,000
	Fermentation Tank #4	 	4,000
	Beerwell	 	4,000
	Whole Stillage Tank	 	3,500
	Thin Stillage Tank	 	3,500
	Syrup Tank	 	3,500
	190 Proof Day Tank	 	3,000
	200 Proof Day Tank	 	3,000
	Denaturant Tank	 	3,000
	Fire Water Tank	 	3,000
	All Other Areas	 	3,000




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Table 2 Maintenance and Power Equipment—Responsibility of Owner  



	Description
	 	Additional Description

	Spare Parts	 	Spare parts Parts bins Misc. materials, supplies and equipment
	Shop supplies and equipment	 	One shop welder

One portable gas welder

One plasma torch

One acetylene torch

One set of power tools

Two sets of hand tools with tool boxes

Carts and dollies

Hoists (except centrifuge overhead crane)

Shop tables

Maintenance office furnishings & supplies

Fire Extinguishers

Reference books

Safety manuals

Safety cabinets & supplies, etc.
	Rolling stock	 	Used 11/2 yard front end loader

New Skid loader

Used Fork lift

Used Scissors lift, 30 foot

Used Pickup truck

Track Mobile




5









   Table 3  



	AVENTINE

Segregation of Responsibilities and Scope of Work

	Description
 
	 	Design

Basis
	 	Estimate
	 	Design
	 	Construction
	 	Comments

	Outside battery limits	 	 	 	 	 	 	 	 	 	 
	 	
 Rough Grading	
 	

Owner	
 	

Owner	
 	

Owner	
 	

[*]	
 	

The site outside of the battery limits including any storm water run-off retention system, will be rough graded to allow final design site elevation plus or minus 2" and to be performed by
Owner.
	 	
 Finish Grading	
 	

Owner	
 	

Owner	
 	

Owner	
 	

[*]	
 	

The site outside the battery limits will be finish graded to accommodate surface drainage as required for Design-Builder's design inside the battery limits and Owner's design outside the battery limits. All seeding and landscaping to be provided by
Owner.
	 	
 Erosion Control	
 	

Owner	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Design-Builder will maintain dust control during construction for its construction, lay down and office/parking areas. Owner will maintain overall erosions control.
	 	
 Roads	
 	

Owner	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Owner will design roads and install base rock for access roads to the battery limits, within any planned hard surface top elevation. Design-Builder will use this road for access during construction, will maintain the road through construction, and
will restore the base to within 2" of the originally provided grade. Any required base above this level and all final hard surfacing will be installed by Owner.
	 	
 Rail	
 	

Owner	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Owner will provide all rail design and construction. Design-Builder will provide input as to the rail spacing required for the grain/DDG unloading & loading shed.





[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


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	 	Water Supply	 	Design-

Builder	 	Owner	 	Owner	 	[*]	 	Design-Builder will provide the flow rate and quality basis for the water to be routed to the battery limits. Owner will supply the water from the source header location to a location inside the battery limits specified
by Design-Builder in the general area of the process water tank. Design-Builder will provide all water piping from that point to the individual water usage points within the battery limits. Owner will provide water from its header to the CO2 plant
and the administration building.
	 	
 Natural Gas Supply	
 	

Design-

Builder	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Design-Builder will provide Owner with the natural gas usage requirements for Owner's sizing of the natural gas supply. Owner is to install the natural gas supply line routed to a site location inside the battery limits specified by Design-Builder in
the general area of the thermal oxidizer. Owner will provide natural gas to any future CO2 plant and the administration building.
	 	
 Storm Drainage	
 	

Owner	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Owner will slope final grading within the battery limits towards a drainage system to be provided by Owner. Owner is to provide preliminary storm drainage as part of rough grading package.
	 	
 Sanitary Sewer	
 	

Design-

Builder	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Owner will install and route the sanitary sewer outside the battery limits to a site inside the battery limits specified by Design-Builder. Design-Builder will run all on-site sanitary sewer lines inside the battery limits to the Design-Builder
specified location and tie in such lines to the Owner sanitary sewer to be installed under the preceding sentence.
	 	
 Process Sewer	
 	

Owner	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Waste water from the process will be discharged from the plant to the existing Owner waste water facility.





[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


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	 	Interconnecting Piperacks	 	Design-

Builder	 	Design-

Builder	 	Owner	 	[*]	 	Design-Builder will design and construct interconnecting pipe racks and piping within the battery limits, including pipe racks to the ethanol storage area, the cooling tower and the process water tank. [*] will design and
construct the pipe racks outside the battery limits where needed to sufficiently satisfy process requirements. The [*] from the scrubber to the [*] is to be provided by [*].
	 	
 Administration Building	
 	

Owner	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Owner will be responsible for the design and construction of the administration building and associated parking area.
	
 Inside battery limits	
 	

 	
 	

 	
 	

 	
 	

 	
 	

 
	 	
 Rough Grading	
 	

Design-

Builder	
 	

Owner	
 	

Design-

Builder	
 	

[*]	
 	

The site inside of the battery limits, including drainage to any storm water run-off retention system, will be rough graded to allow for finial design elevation plus or minus 2" to be performed by Owner.
Soil compaction of 3000 psi minimum is to be provided inside the battery limits by Owner. See Table 1 for areas requiring greater soil compaction.
	 	
 Finish Grading	
 	

Design-

Builder	
 	

Owner	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder will design finish grading to slope the grade within the battery limits to a storm water drainage system to be provided by Owner. All final grading inside the battery limits will be performed by Owner. All seeding and landscaping will
be provided by Owner.
	 	
 Roads	
 	

Design-

Builder	
 	

Owner	
 	

Design-

Builder	
 	

[*]	
 	

Owner will install roads and base rock as part of the rough grade. Design-Builder will maintain the roads inside the battery limits and Owner's access road during construction and restore the base to within 2" of previous grade. All required base
above this level and all final hard surfacing will be installed by Owner.





[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


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	 	Laydown Area	 	Design-

Builder	 	Owner	 	Design-

Builder	 	[*]	 	The laydown area required for Design-Builder's construction is contained within the areas described in the pre-construction rough grading requirements. Design-Builder will maintain the laydown areas during construction
and will return the areas outside the battery limits to within 0'-6" of the required final grade.
	 	
 Temporary Facilities	
 	

Design-

Builder	
 	

Owner	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder will layout the area for office trailers, parking and equipment storage/laydown. Design-Builder will maintain this area through construction. Design-Builder and/or its subcontractors will furnish all office trailers through the
construction process. Owner will furnish utilities temporary and permanent.
	 	
 Water Supply	
 	

Design-

Builder	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Design-Builder will provide the flow rate basis for the water to be routed to the battery limits. Owner will bring the water to a point inside the battery limits specified by Design-Builder, in the general area of the process water tank.
Design-Builder will provide all water piping from that point to the individual water usage points within the battery limits. [*] will provide water from its header to the CO2 plant and the administration building.
	 	
 Natural Gas Supply	
 	

Design-

Builder	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Design-Builder will provide Owner with the natural gas usage requirements for Owner's sizing of the natural gas supply for the ethanol plant. Owner will furnish Natural gas service supply to a location inside the battery limits specified by
Design-Builder in the general area of the thermal oxidizer. [*] will provide natural gas from its header to any future CO2 plant and the administration building.
	 	
 Grain Handling	
 	

Owner	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Existing Owner grain facilities will be utilized to provide a consistent (scalped) metal free supply of whole grain. [*] will deliver the corn to the elevator leg provided by [*] that will move the corn to the scalper screens and mills.





[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


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	 	DDG Handling	 	Design-

Builder	 	Design-

Builder	 	Design-

Builder	 	[*]	 	Design-Builder will provide the DDGS handling system to and including inside flat storage, which includes truck loading. All railroad track and any rail loading or unloading capability will be the sole responsibility of
Owner. Truck and Railroad scales will be owner responsibility.
	 	
 Grain Milling	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for the specification and purchase of the elevator leg forward. Design-Builder will provide equipment and installation of the leg, scalper, hammermills, and surge bin.
	 	
 Plant & Instrument Air	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for the compressors, dryer and piping for all plant and instrument air required for other elements of Design-Builder's scope of work. [*] will be responsible for any [*], including [*] for all other elements of the work
not covered in the [*] scope of work, including any future CO2 plant.
	 	
 Cook Section/Liquifaction	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for all elements for the purchase, design and construction of these systems. Per standard Design-Builder 55 MMGPY Facility.
	 	
 Fermentation Section	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for all elements for the purchase, design and construction of these systems. Per standard Design-Builder 55 MMGPY Facility.
	 	
 Distillation/Evaporation Sections	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for all elements for the purchase, design and construction of these systems. Per standard Design-Builder 55 MMGPY Facility.
	 	
 Dehydration Section	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

[*] is supplying [*] pounds of [*]. Design-Builder is responsible for all elements for the purchase, design and construction of these systems. Per standard Design-Builder 55 MMGPY Facility.
	 	
 Liquid/Solid Separation Section	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for all elements for the purchase, design and construction of these systems. Per standard Design-Builder 55 MMGPY Facility.





[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


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	 	Evaporation Section	 	Design-

Builder	 	Design-

Builder	 	Design-

Builder	 	[*]	 	Design-Builder is responsible for all elements for the purchase, design and construction of these systems. Per standard Design-Builder 55 MMGPY Facility.
	 	
 Product Storage Section	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Existing product storage will be used in the scope of work and supplied by [*]. [*] is responsible only for the purchase design and construction of the additional tank used for 190 proof storage, including the concrete containment.
	 	
 TO/Boiler/Steam Section	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for all elements for the purchase, design and construction of this systems, Per standard Design-Builder 55 MMGPY design. All Boiler chemicals required are the responsibility of Owner.
	 	
 Process Building and Energy Center	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder will design and construct the process building and energy center including all associated interior equipment, piping, foundations, miscellaneous mechanical equipment, and electrical (ISBL).
	 	
 Cooling Tower/Water Section	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for all elements for the purchase, design and construction of this system, Per standard Design-Builder 55 MMGPY design. Tower chemicals are the responsibility of Owner.
	 	
 Process/Waste H2O w/ Methanator	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for all elements for the purchase, design and construction of this systems. Per standard Design-Builder 55 MMGPY design. [*] has been removed from the project due to existing waste treatment facility, but the [*]
remains.





[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


11







 


	 	Electrical/Power Substation	 	Design-

Builder	 	Owner	 	Owner	 	[*]	 	Owner is responsible for the main electrical substation, and metering of electrical power. In addition, Owner is responsible for the main switchgear, providing Design-Builder [*] for the ethanol plant. Each feed must be
rated for [*] however, the overall capacity need not exceed [*] total. Owner is also responsible for any contracts with the electrical utilities regarding power equipment and/or usage
	 	Power Distribution	 	Design-

Builder	 	Design-

Builder	 	Design-

Builder	 	[*]	 	Design-Builder is responsible for the primary distribution from the feed points at the main switchgear, and for all cables, switchgear, and transformers to provide power to the ethanol plant excluding any [*]
	 	
 Construction Power and utilities	
 	

Design-

Builder	
 	

Owner	
 	

Owner	
 	

[*]	
 	

Owner will be solely responsible for furnishing utilities needed for construction. Design-Builder will furnish specifications and locations of needed utilities to include electrical power, sewer, and natural gas.
	 	
 [*] equipment within battery limits	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for the [*] equipment including cables, switchgear, MCC, panel boards, and transformers to provide electric power to the plant areas within the battery limits. The Admin building and CO2 plant will be the responsibility
of [*] and/or [*] from the [*] of the corresponding transformers.
	 	
 Instrumentation and controls	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for the instrumentation and controls within the battery limits including the DCS system and hardware. [*] will coordinate control requirements with [*] in respect to the [*] portion of the grain handling system. [*] will
be responsible for control of the grain inspection equipment including sampling stations, truck scales, etc.





[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


12







 


	 	Facility Communications	 	Owner	 	Owner	 	Owner	 	[*]	 	Owner will be responsible for the facility communications including the telephone system and broadband internet access. Design-Builder will coordinate quantity and locations for installations within the battery limits and
any interface with plant equipment.
	 	Fire Detection and Alarm Systems	 	Owner	 	Owner	 	Owner	 	[*]	 	Owner will be responsible for the fire detection and alarm systems inside the battery limits. Owner will be responsible for integrating the fire system inside the battery limits with existing Owner fire protection system
equipment. [*] will provide cad isometric LDAR drawings for incorporation into Owner's existing LDAR system.
	 	Water Treatment	 	Design-

Builder	 	Owner	 	Owner	 	[*]	 	Design-Builder will provide water quality requirements to an Owner contracted water treatment design company. Any required water treatment equipment, RO system, softening system, and is the responsibility of
Owner.
	 	
 Chemical Injection Systems	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for all elements for the design and construction of these systems. Per standard Design-Builder 55 MMGPY design. Chemicals are the responsibility of Owner
	 	
 CO2 Scrubber System	
 	

Design-

Builder	
 	

Design-

Builder	
 	

Design-

Builder	
 	

[*]	
 	

Design-Builder is responsible for the CO2 Scrubber, the Purge Scrubber, and CO2 ductwork to the TO. A [*] for the discharge of the [*] to any future [*] will be provided in the general area of the scrubbers. Exact location of tie-in point to be
specified by Design-Builder. CO2 transfer blower from scrubber to CO2 plant, knock out condenser, controls, and associated piping is the responsibility of Owner.





[*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


13








  



 
 

LICENSE AGREEMENT    
    


EXHIBIT D  


THIS LICENSE AGREEMENT (this "License Agreement") is entered into and made effective as of the 9th day of September, 2005 ("Effective
Date") by and between Aventine Renewable Energy, Inc., a Delaware corporation ("OWNER"), and ICM, Inc., a Kansas corporation ("ICM"). 


        WHEREAS,
OWNER has entered into that certain Design-Build Lump Sum Contract dated September 9, 2005 (the "Contract") with Fagen, Inc., a Minnesota corporation ("Fagen"),
under which Fagen is to design and construct a 55 million gallon per year ethanol plant for OWNER to be located in or near Pekin, Illinois (the "Plant"); 


        WHEREAS,
ICM has granted Fagen the right to use certain proprietary technology and information of ICM in the design and construction of the Plant; and 


        WHEREAS,
OWNER desires from ICM, and ICM desires to grant to OWNER, a license to use such proprietary technology and information in connection with OWNER's ownership and operation of the
Plant, all upon the terms and conditions set forth herein; 



        NOW,
THEREFORE, the parties, in consideration of the foregoing premises and the mutual promises contained herein and for other good and valuable consideration, receipt of which is hereby
acknowledged, agree as follows: 



1.
ICM grants to OWNER a limited license to use the Proprietary Property (hereinafter defined) solely in connection with the design, construction, operation, maintenance and repair of the Plant,
subject to the limitations provided herein (the "Purpose"). In the event OWNER fails to pay to Fagen all amounts due and owing Fagen under the Contract or the Contract is terminated for any reason
prior to the substantial completion of the Plant, the limited license granted to OWNER herein shall terminate unless otherwise mutually agreed by ICM and OWNER. For purposes of the foregoing, if OWNER
has disputed amounts Fagen has billed OWNER under the Contract, such disputed amounts shall not be considered "due and owing Fagen" unless and until such disputed amounts have been determined pursuant
to the dispute resolution procedures of the Contract to be owed by OWNER to Fagen. 


2.
The "Proprietary Property" means, without limitation, documents, Operating Procedures (hereinafter defined), materials and other information that are furnished by ICM to OWNER, whether directly or
indirectly through Fagen, in connection with the Purpose including, without limitation, the design, arrangement, configuration, and specifications of (i) the combinations of distillation,
evaporation, and alcohol dehydration equipment (including, but not limited to, pumps, vessels, tanks, heat exchangers, piping, valves and associated electronic control equipment) and all documents
supporting those combinations; (ii) the combination of the distillers grain drying (DGD), and heat recovery steam generation (HRSG) equipment (including, but not limited to, pumps, vessels,
tanks, heat exchangers, piping and associated electronic control equipment) and all documents supporting those combinations; and (iii) the computer system, known as the distributed control
system (DCS and/or PLC) (including, but not limited to, the software configuration, programming, parameters, set points, alarm points, ranges, graphical interface, and system hardware connections) and
all documents supporting that system. The "Operating Procedures" means, without limitation, the process equipment and specifications manuals, standards of quality, service protocols, data collection
methods, construction specifications, training methods, engineering standards and any other information prescribed by ICM from time to time concerning the Purpose. Proprietary Property disclosed in
written, electronic or other format by ICM shall contain one or more words conspicuously printed, typed or marked thereon by ICM indicating that such materials are proprietary and/or confidential.
Proprietary Property disclosed orally by ICM shall be reduced to written, electronic or other format and identified as such by ICM within thirty 



1







 




(30) days
after such disclosure. Proprietary Property shall not include any information or materials that OWNER can demonstrate by written documentation: (i) was lawfully in the
possession of OWNER prior to disclosure by ICM; (ii) was in the public domain prior to disclosure by ICM; (iii) was disclosed to OWNER by a third party having the legal right to possess
and disclose such information or materials; or (iv) after disclosure by ICM comes into the public domain through no fault of OWNER or its directors, officers, employees, agents, contractors,
consultants or other representatives (hereinafter collectively referred to as "Representatives"). Information and materials shall not be deemed to be in the public domain merely because such
information is embraced by more general disclosures in the public domain, and any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features
are in the public domain if the combination itself and its principles of operation are not in the public domain. 


3.
OWNER shall not use the Proprietary Property for any purpose other than the Purpose. OWNER shall not use the Proprietary Property in connection with any expansion or enlargement of the Plant. 



4.
OWNER's failure to materially comply with the Operating Procedures shall void all guarantees, representations and warranties, whether expressed or implied, if any, that were given by ICM to OWNER,
directly or indirectly through Fagen, concerning the performance of the Plant that ICM reasonably determines are materially affected by OWNER's failure to materially comply with such Operating
Procedures. OWNER agrees to indemnify, defend and hold harmless ICM, Fagen and their respective Representatives from any and all losses, damages and expenses including, without limitation, reasonable
attorneys' fees resulting from, relating to or arising out of (a) Owner's or its Representatives' failure to materially comply with the Operating Procedures or (b) negligent or
unauthorized use of the Proprietary Property; provided, however, in the case of subparagraph (a), and the negligent use of the Proprietary Property under subparagraph (b), of this paragraph 4.,
OWNER's indemnity defense and hold harmless obligation shall be limited to indemnifying, defending and holding ICM, Fagen and their respective Representatives harmless from claims of any person or
entity other than ICM, Fagen or their respective Representatives. 


5.
Any and all modifications to the Proprietary Property by OWNER or its Representatives shall be the property of ICM. OWNER shall promptly notify ICM of any such modification and OWNER agrees to
assign all right, title and interest in such modification to ICM; provided, however, OWNER shall retain the right, at no cost, to use such modification in connection with the Purpose. 


6.
ICM has the exclusive right and interest in and to the Proprietary Property and the goodwill associated therewith. OWNER will not, directly or indirectly, contest ICM's ownership of the Proprietary
Property. OWNER's use of the Proprietary Property does not give OWNER any ownership interest or other interest in or to the Proprietary Property except for the limited license granted to OWNER herein. 


7.
OWNER shall pay no license fee or royalty to ICM for OWNER's use of the Proprietary Property pursuant to the limited license granted to OWNER, the consideration for this limited license is included
in the amounts payable by OWNER to Fagen for the construction of the Plant under the Contract. 


8.
OWNER may not assign the limited license granted herein, in whole or in part, without the prior written consent of ICM, which will not be unreasonably withheld or delayed. Prior to any assignment,
OWNER shall obtain from such assignee a written instrument, in form and substance reasonably acceptable to ICM, agreeing to be bound by all the terms and provisions of this License Agreement. Any
assignment of this License Agreement shall not release OWNER from (i) its duties and obligations hereunder concerning the disclosure and use of the Proprietary Property by 



2







 




OWNER
or its Representatives, or (ii) damages to ICM resulting from, or arising out of, a breach of such duties or obligations by OWNER or its Representatives. ICM may assign its right, title
and interest in the Proprietary Property, in whole or part, subject to the limited license granted herein. 


9.
The Proprietary Property is confidential and proprietary. OWNER shall keep the Proprietary Property confidential and shall use all reasonable efforts to maintain the Proprietary Property as secret
and confidential for the sole use of OWNER and its Representatives for the Purpose. OWNER shall retain all Proprietary Property at its principal place of business and/or the Plant. OWNER shall not at
any time without ICM's prior written consent, copy, duplicate, record, or otherwise reproduce the Proprietary Property, in whole or in part, or otherwise make the same available to any unauthorized
person provided, OWNER shall be permitted to copy, duplicate or otherwise reproduce the Proprietary Property in whole or in part in connection with the Purpose so long as all such copies, duplicates
or reproductions are kept at its principal place of business and/or the Plant and are treated the same as any other Proprietary Property. OWNER shall not disclose the Proprietary Property except to
its Representatives who are directly involved with the Purpose, and even then only to such extent as is necessary and essential for such Representative's involvement. OWNER shall inform such
Representatives of the confidential and proprietary nature of such information and, if requested by ICM, OWNER shall obtain from such Representative a written instrument, in form and substance
reasonably acceptable to ICM, agreeing to be bound by all of the terms and provisions of this License Agreement relating to the disclosure and use of the Proprietary Property. OWNER shall make all
reasonable efforts to safeguard the Proprietary Property from disclosure by its Representatives to anyone other than permitted hereby. In the event that OWNER or its Representatives are required by
law to disclose the Proprietary Property, OWNER shall provide ICM with prompt written notice of same so that ICM may seek a protective order or other appropriate remedy. In the event that such
protective order or other appropriate remedy is not obtained, OWNER or its Representatives will furnish only that portion of the Proprietary Property which in the reasonable opinion of its or their
legal counsel is legally required and will exercise its reasonable efforts to obtain reliable assurance that the Proprietary Property so disclosed will be accorded confidential treatment. 


10.
OWNER agrees to indemnify ICM for any and all damages (including, without limitation, reasonable attorneys' fees) arising out of or resulting from any unauthorized disclosure or use of the
Proprietary Property by OWNER or its Representatives. OWNER agrees that ICM would be irreparably damaged by reason of a violation of the provisions contained herein and that any remedy at law for a
breach of such provisions would be inadequate. Therefore, ICM shall be entitled to seek injunctive or other equitable relief in a court of competent jurisdiction against OWNER or its Representatives
for any unauthorized disclosure or use of the Proprietary Property without the necessity of proving actual monetary loss or posting any bond. It is expressly understood that the remedy described
herein shall not be the exclusive remedy of ICM for any breach of such covenants, and ICM shall be entitled to seek such other relief or remedy, at law or in equity, to which it may be entitled as a
consequence of any breach of such duties or obligations. 


11.
The duties and obligations of OWNER under this License Agreement, and all provisions relating to the enforcement of such duties and obligations shall survive and remain in full force and effect
notwithstanding any termination or expiration of the Contract or the license granted herein under paragraph 1 or 12. 


12.
ICM may terminate the limited license granted to OWNER herein upon written notice to OWNER if OWNER willfully or wantonly (a) uses the Proprietary Property for any purpose, or
(b) discloses the Proprietary Property to anyone, in each case other than permitted herein. Upon termination of the license under paragraph 1 or this paragraph 12, OWNER shall
cease using the Proprietary Property for any purpose (including the Purpose) and, upon request by ICM, shall 



3







 




promptly
return to ICM all documents or other materials in OWNER's or its Representatives' possession that contain Proprietary Property. 


13.
The laws of the State of Kansas, United States of America, shall govern the validity of the provisions contained herein, the construction of such provisions, and the interpretation of the rights
and duties of the parties. Any legal action brought to enforce or construe the provisions of this License Agreement shall be brought in the federal or state courts located in Kansas, and the parties
agree to and hereby submit to the exclusive jurisdiction of such courts and agree that they will not invoke the doctrine of forum non conveniens or other similar defenses in any such action brought in
such courts. In the event the Plant is located in, or OWNER is organized under the laws of, a country other than the United States of America, OWNER hereby specifically agrees that any injunctive or
other equitable relief granted by a court located in the State of Kansas, United States of America, or any award by a court located in the State of Kansas, shall be specifically enforceable as a
foreign judgment in the country in which the Plant is located, OWNER is organized or both, as the case may be, and agrees not to contest the validity of such relief or award in such foreign
jurisdiction, regardless of whether the laws of such foreign jurisdiction would otherwise authorize such injunctive or other equitable relief, or award. OWNER agrees that the aggregate recovery of
OWNER (and everyone claiming by or through OWNER), as a whole, under this License Agreement and the Contract against ICM and ICM's Representatives (other than Fagen or Fagen's Representatives),
collectively, shall not exceed [*]. The prevailing party in any legal action relating to, arising out of or resulting from this License Agreement shall be indemnified by the
other party for its reasonable attorneys' fees and costs incurred in such legal action. 


14.
OWNER hereby agrees to waive all claims against ICM and ICM's Representatives for any and all of its consequential damages that may arise out of or relate to this License Agreement, the Contract
or the Proprietary Property whether arising in contract, warranty, tort (including negligence), strict liability or otherwise, including but not limited to losses of use, profits, business, reputation
or financing. 


15.
The terms and conditions of this License Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any prior understandings, agreements
or representations by or between the parties, written or oral. Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the
interpretation of this License Agreement. This License Agreement may not be modified or amended at any time without the written consent of the parties. 



16.
All notices, requests, demands, reports, statements or other communications (herein referred to collectively as "Notices") required to be given hereunder or relating to this License Agreement
shall be in writing and shall be deemed to have been duly given if transmitted by personal delivery or mailed by certified mail, return receipt requested, postage prepaid, to the address of the party
as set forth below. Any such Notice shall be deemed to be delivered and received as of the date so delivered, if delivered personally, or as of the fifth business day following the day sent, if sent
by certified mail. Any party may, at any time, designate a different address to which Notices shall be directed by providing written notice in the manner set forth in this paragraph. 




[*]
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


4







 

17.
In the event that any of the terms, conditions, covenants or agreements contained in this License Agreement, or the application of any thereof, shall be held by a court of competent jurisdiction
to be invalid, illegal or unenforceable, such term, condition, covenant or agreement shall be deemed void ab initio and shall be deemed severed from this License Agreement. In such event, and except
if such determination by a court of competent jurisdiction materially changes the rights, benefits and obligations of the parties under this License Agreement, the remaining provisions of this License
Agreement shall remain unchanged, unaffected and unimpaired thereby and, to the extent possible, such remaining provisions shall be construed such that the purpose of this License Agreement and the
intent of the parties can be achieved in a lawful manner. 


18.
The duties and obligations herein contained shall bind, and the benefits and advantages shall inure to, the respective successors and permitted assigns of the parties hereto. 


19.
The waiver by any party hereto of the breach of any term, covenant, agreement or condition herein contained shall not be deemed a waiver of any subsequent breach of the same or any other term,
covenant, agreement or condition herein, nor shall any custom, practice or course of dealings arising among the parties hereto in the administration hereof be construed as a waiver or diminution of
the right of any party hereto to insist upon the strict performance by any other party of the terms, covenants, agreement and conditions herein contained. 


20.
In this License Agreement, where applicable, (i) references to the singular shall include the plural and references to the plural shall include the singular, and (ii) references to
the male, female, or neuter gender shall include references to all other such genders where the context so requires. 




IN
WITNESS WHEREOF, the parties hereto have executed this License Agreement, the Effective Date of which is indicated on page 1 of this License Agreement. 



	OWNER:
 
	 	Company Name
 

	Aventine Renewable Energy, Inc.	 	ICM, INC.
	

By: /s/ Jerry L. Weiland	
 	

By: /s/ Dave Vander Griend
	

Title: VP Operations	
 	

Title: CEO
	

Date Signed: 9/9/05	
 	

Date Signed: 9/16/05
	Address for giving notices:	 	Address for giving notices:
	1300 South 2nd Street	 	301 N First Street
	Pekin, Illinios 61554	 	Colwich, KS 67030




5








  



 
 

Design Build Contract
  Aventine Renewable Energy, Inc. September 9, 2005    
    


EXHIBIT "E"  


 
 

START-UP SERVICES TO BE PROVIDED TO OWNER    



        Start-up
services will be provided to Owner as follows: Electrical and instrumentation checkout, and approximately two (2) weeks of on-site training at the
US Energy Partners Plant (USEP) in Russell, Kansas, or other location, such to be provided for project Owner employees, including operators, laboratory personnel, general, plant and maintenance
managers. (Other personnel of the project Owner can be provided such on-site training by separate agreement and as time is available.) All trainer and costs associated with the trainer,
including labor and all training materials will be provided to Owner without cost. The Owner will be responsible for all travel and related expenses of its employees and the project Owner will pay all
wages for its personnel during the training and will cover all other expenses of its personnel related to the on-site training. Said training services will include training on computers,
lab procedures, field operating procedures, and overall plant section performance expectations. Two persons shall be provided to lead the Owner during the initialization and start-up of
the plant. The Owner will provide all other personnel and pay all other costs related to start-up of the plant. Personnel will be maintained on-site by Design-Builder or a
subcontractor until all performance testing is complete and accepted by the Owner, unless the Owner fails to execute or allow performance testing within 30 days after receiving a written
request from Design-Builder or its subcontractor to begin performance testing or the work on the project work is substantially stopped for any reason other than reasons beyond Owner's control
(specifically due to acts, omissions, conditions, events or circumstances beyond its control and due to no fault of its own or those for whom Owner is responsible) for a period of 30 days or
more. Design-Builder or its subcontractor will provide an additional one month on-site support after Substantial Completion start-up of the plant and from date of Substantial
Completion start-up will provide six (6) months of
off-site technical and operating procedure support by telephone, computer modem, the Internet and email. 


        Design-Builder
shall deliver to Owner all manuals, instructions or other written materials that it receives from equipment manufacturers and suppliers/vendors of equipment. 


1








  



 
 

Design Build Contract
  Aventine Renewable Energy, Inc.
  September 9, 2005    
    


EXHIBIT F  


Schedule
of Values for:
 Aventine Renewable Energy, Inc.

Pekin, IL.

Payment Request Breakdown


9/9/2005




	Description
 
	 	 

	MOBILIZATION DOWNPAYMENT	 	[*]
	ENGINEERING ([*] DOWNPAYMENT INCLUDED)	 	[*]
	GENERAL CONDITIONS	 	[*]
	SITEWORK	 	[*]
	CONCRETE	 	[*]
	MASONRY	 	[*]
	STRUCTURAL STEEL & MISC. METALS	 	[*]
	LUMBER, CARPENTRY & FINISHES	 	[*]
	GIRTS, SIDING & ROOF DECK	 	[*]
	DOORS & WINDOWS	 	[*]
	PAINTING	 	[*]
	GRAIN HANDLING SYSTEM	 	[*]
	DDG STORAGE BUILDING & LOADOUT	 	[*]
	DRYER SYSTEM	 	[*]
	FIELD ERECTED TANKS	 	[*]
	PROCESS TANKS & VESSELS	 	[*]
	THERMAL OXIDIZER	 	[*]
	PROCESS EQUIPMENT	 	[*]
	HEAT EXCHANGERS	 	[*]
	SIEVE BOTTLES & BEADS	 	[*]
	CHILLER	 	[*]
	CENTRIFUGES	 	[*]
	COOLING TOWER	 	[*]
	DDG SCALE	 	[*]
	PROCESS PIPING & VALVES	 	[*]
	INSULATION	 	[*]
	PLUMBING &HVAC	 	[*]
	ELECTRICAL	 	[*]
	INSTRUMENTATION	 	[*]
	START-UP	 	[*]
	DEMOBILIZATION	 	[*]
	 	CONTRACT AMOUNT	 	[*]





[*]
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


1








  



 
 

Design Build Contract
  Aventine Renewable Energy, Inc.
  September 9, 2005    
    


EXHIBIT G  



	OWNER'S RESPONSIBILITIES
 
	 	NUMBER OF DAYS TO

BE COMPLETED AFTER

NOTICE TO PROCEED

	Notice to Proceed	 	0
	Obtain Builder's Risk policy in the amount of the Contract Price, obtain Boiler and Machinery Insurance, and obtain Terrorism Coverage per TRIA	 	10
	Financial Close	 	60
	Storm Water Permits Complete	 	60
	Natural Gas/Propane Supply Agreements Complete	 	90
	Water Supply and Service Agreements Complete	 	90
	Risk Insurance Provider Selected/Fire Protection Requirements Known	 	90
	NPDES Discharge Point Selected	 	90
	Electrical Service	 	90
	Water Pre-Treatment System Design Complete	 	[*]
	Wastewater Discharge System Complete	 	[*]
	Operating Permits Complete	 	[*]
	Discharge Permits Complete	 	[*]
	Fire Protection System Complete	 	[*]
	Pumphouse/Water Pre-treatment System Complete	 	[*]
	Paving (Plant Roads) Complete	 	[*] days prior to SC
	Rail Spur Complete	 	[*] days prior to SC
	Employees Hired and Ready for Training	 	[*] days prior to SC
	Natural Gas Pipeline Complete	 	[*] days prior to SC





	

DESIGN-BUILDER'S RESPONSIBILITIES
 
	 	

NUMBER OF DAYS TO

BE COMPLETED AFTER

NOTICE TO PROCEED

	Substantial Completion (SC)	 	[*]





[*]
CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. 


1








  



 
 

Design Build Contract
  Aventine Renewable Energy, Inc.
  September 9, 2005    
    


         SUPPLEMENTARY CONDITIONS  


These Supplementary Conditions amend or supplement the Standard Form of General Conditions of Contract between Owner and Design-Builder (DBIA Document
No. 535, 1998 Edition) and other provisions of the Contract Documents as indicated below. All provisions, which are not so amended or supplemented, remain in full force and effect. 



SC—1.2 Basic Definitions  


The
terms used in these Supplementary Conditions which are defined in the Standard Form of General Conditions of Contract between Owner and Design-Builder (DBIA Document No. 535, 1998 Edition)
have the meanings assigned to them in the General Conditions. 


SC—1.2.1 Agreement  


Delete
Section 1.2.1 of the General Conditions in its entirety and insert the following in its place: 



Agreement refers to the executed Standard Form of Agreement between Owner and Design-Builder—Lump Sum (DBIA Document No. 525, 1998
Edition), as amended by Owner and Design-Builder. 


SC—1.2.11 Substantial Completion  


Amend
Section 1.2.11 of the General Conditions by striking out the following words: "or an agreed upon portion of the Work" and "or a portion thereof." 


Add
the following language at the end of Section 1.2.11 of the General Conditions. Substantial Completion shall be attained at the point in time when the Project begins operation for its
intended use (ethanol production; i.e., the "grind corn" date). 


As
so amended, Section 1.2.11 reads as follows: 


Substantial Completion is the date on which the Work is sufficiently complete so that Owner can occupy and use the Project for its intended purposes.
Substantial Completion shall be attained at the point in time when the Project begins operation for its intended use (ethanol production; i.e., the "grind corn" date). 


SC—2.1.2  


Delete
Section 2.1.2 of the General Conditions in its entirety and insert the following in its place: 


Design-Builder
shall maintain a current, complete set of drawings and specifications at the Work site. Owner or its employees may review such drawings and specifications, and Owner may be allowed,
upon Design-Builder's approval (such approval may not to be unreasonably withheld), to make copies of drawings and specifications available at the Work site that are applicable to Owner.
Design-Builder shall provide Owner with regular communication regarding the progress and any revisions to the drawings and specifications of the Work, including whether (i) the Work is
proceeding according to schedule, (ii) discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution, (iii) health and safety issues exist in
connection with the Work, and (iv) other items require resolution so as not to jeopardize Design-Builder's ability to complete the Work for the Contract Price and within the Contract Time(s). 


1







 



SC—2.1.3  


Delete
Section 2.1.3 of the General Conditions in its entirety and insert the following in its place: 


Design-Builder
shall prepare and submit a schedule for the execution of the Work to Owner for its review. The schedule shall indicate the dates for the start and completion of the various stages of
Work, including the dates when Owner's obligations are required to be complete to enable Design-Builder to achieve the Contract Time(s). The schedule shall be revised as required by conditions and
progress of the Work but such revisions shall not (i) relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), unless such revisions to the schedule are the
result of any direct or indirect delay in the completion of Owner's obligations or (ii) revise the dates when Owner's obligations are required to be complete without Owner's written agreement
to such revisions. In the event such revisions to the schedule are the result of any delay in the completion of Owner's obligations, then unless such delay was caused by Design-Builder or its
Subcontractors, Sub-Subcontractors or Design Consultants, the Contract Time(s), and the Contract Time(s) for completion of the Work shall be extended accordingly without penalty to
Design-Builder. 


SC—2.1.4  


Delete
Section 2.1.4 of the General Conditions in its entirety and insert the following in its place: 


The
parties will meet at a mutually agreeable time after execution of the Agreement to discuss issues affecting the administration of the Work and to implement the necessary procedures, including
those relating to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract Documents. 


SC—2.3.1  


Amend
the second sentence of Section 2.3.1 of the General Conditions by striking out the words: Performance Standard Requirements; and inserting the following: Exhibit A: Performance
Guarantee Criteria; and as so amended, Section 2.3.1 reads as follows: 


The
standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used by members of the design profession practicing under similar
conditions at the same time and locality of the Project. Notwithstanding the preceding sentence, if the parties agree upon specific performance standards for any aspect of the Work, which standards
are to be set forth in an exhibit to the Agreement entitled "Exhibit A: Performance Guarantee Criteria," the design professional services shall be performed to achieve such standards. 


SC—2.4.1  


Delete
Section 2.4.1 of the General Conditions in its entirety and insert the following in its place: 


Reserved. 


SC—2.4.2  


Delete
Section 2.4.2 of the General Conditions in its entirety and insert the following in its place: 


Reserved.



SC—2.4.3  


Delete
Section 2.4.3 of the General Conditions in its entirety and insert the following in its place: 



Reserved. 


2







 



SC—2.6.1  


Amend
Section 2.6.1 of the General Conditions by striking out the words: an Owner's Permit List; and inserting the following: Exhibit C: Owner's Responsibilities; and as so amended,
Section 2.6.1 reads as follows: 


Except
as identified in Exhibit C: Owner's Responsibilities List attached as an exhibit to the Agreement, Design-Builder shall obtain and pay for all necessary permits, approvals, licenses,
government charges
and inspection fees required for the prosecution of the Work by any government or quasi-government entity having jurisdiction over the Project. 


SC—2.7.4  


Amend
the first sentence of Section 2.7.4 of the General Conditions by inserting the phrase "and Sub-Subcontractors"; and as so amended, Section 2.7.4 reads as follows: 


2.7.4 Design-Builder assumes responsibility to Owner for the proper performance of the Work contracted to Subcontractors and any acts and omissions in
connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or
Sub-Subcontractor, including but not limited to any third-party beneficiary rights. 


SC—2.10.2  


Delete
Section 2.10.2 of the General Conditions in its entirety and insert the following in its place: 


Design-Builder
shall, within seven (7) days of receipt of written notice from Owner that the Work is not in conformance with the Contract Documents, take meaningful steps to commence correction
of such nonconforming Work and thereafter diligently pursue correction of such nonconforming Work, including the correction, removal or replacement of
the nonconforming Work and any damage caused to other parts of the Work affected by the nonconforming Work. If Design-Builder fails to commence the necessary steps within such seven (7) day
period, or once commenced fails to diligently pursue correction of such non-conforming Work, Owner, in addition to any other remedies
provided under the Contract Documents, may provide Design-Builder with written notice that Owner will commence correction of such nonconforming Work with its own forces. If Owner does perform such
corrective Work, Design-Builder shall be responsible for all reasonable costs incurred by Owner in performing such correction. If the nonconforming Work creates an emergency requiring an immediate
response, the seven (7) day periods identified herein shall be deemed inapplicable. 


SC—3.5.1  


Amend
Section 3.5.1 of the General Conditions by striking out the words: the Owner's Permit List; and inserting the following: Exhibit C: Owner's Responsibilities; and as so amended,
Section 3.5.1 reads as follows: 


Owner
shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees set forth in Exhibit C: Owner's Responsibilities attached as an exhibit to the
Agreement. 


SC—6.4.1  


Amend
the first sentence of Section 6.4.1 of the General Conditions by inserting the phrase: in accordance with Section 6.3 above; and as so amended, Section 6.4.1 reads as
follows: 


If
Owner fails to pay Design-Builder any amount that becomes due, in accordance with Section 6.3 above, Design-Builder, in addition to all other remedies provided in the Contract Documents, may
stop 


3







 



Work
pursuant to Section 11.3 hereof. All payments due and unpaid shall bear interest at the rate set forth in the Agreement. 



SC—6.6.2  


Delete
the phrase "reasonable value of" and insert in its place the phrase "expected cost to complete"; so that as so revised, Section 6.6.2 reads as follows: 


6.6.2 Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner shall release to Design-Builder all retained
amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the expected cost to complete all remaining or incomplete items of Work as noted in the
Certificate of Substantial Completion. 


SC—7.1.1  


Delete
Section 7.1.1 of the General Conditions in its entirety and insert the following in its place: 


Design-Builder
shall defend any claim, action or proceeding brought against Owner based on any claim that the Work, or any part thereof, or the
operation or use of the Work or any part thereof, constitutes infringement of any United States patent or copyright, now or hereafter issued. Owner shall give prompt written notice to Design-Builder
of any such claim, action or proceeding and will reasonably provide authority, information and assistance in the defense of same. Design-Builder shall
indemnify and hold harmless Owner from and against all damages and costs, including but not limited to attorneys' fees and expenses awarded against Owner or Design-Builder in any such action or
proceeding. Design-Builder agrees to keep Owner informed of all developments in the defense of such actions. 


SC—10.1.1  


Amend
the third sentence of Section 10.1.1 of the General Conditions by striking out the words: reasonably should have; and as so amended, Section 10.1.1 reads as follows: 


If
either Design-Builder or Owner believes that it is entitled to relief against the other for any event arising out of or related to the Work or Project, such party shall provide written notice to
the other party of the basis for its claim for relief. Such notice shall, if possible, be made prior to incurring any cost or expense and in accordance with any specific notice requirements contained
in applicable sections of these General Conditions of Contract. In the absence of any specific notice requirement,
written notice shall be given within a reasonable time, not to exceed twenty-one (21) days, after the occurrence giving rise to the claim for relief or after the claiming party
recognized the event or condition giving rise to the request, whichever is later. Such notice shall include sufficient information to advise the other party of the circumstances giving rise to the
claim for relief, the specific contractual adjustment or relief requested and the basis of such request. 


SC—10.5.1  


Amend
Section 10.5.1 of the General Conditions by inserting the phrase "except Design-Builder does not waive any such damages resulting from or arising out of any breach of Owner's duties and
obligations under the limited license granted by Design-Builder to Owner pursuant to Article 4 of the Lump Sum Agreement"; and as so amended, Section 10.5.1 reads as follows: 


NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY (EXCEPT AS SET FORTH IN SECTION 10.5.2 BELOW), NEITHER DESIGN-BUILDER NOR OWNER SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL LOSSES OR DAMAGES,
WHETHER ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO LOSSES OF USE, PROFITS, BUSINESS, 


4







 



REPUTATION
OR FINANCING, EXCEPT DESIGN-BUILDER DOES NOT WAIVE ANY SUCH DAMAGES RESULTING FROM OR ARISING OUT OF ANY BREACH OF OWNER'S DUTIES AND OBLIGATIONS UNDER THE LIMITED LICENSE GRANTED BY
DESIGN-BUILDER TO OWNER PURSUANT TO ARTICLE 4 OF THE LUMP SUM AGREEMENT. 


SC—11.2.2  


Delete
Section 11.2.2 of the General Conditions in its entirety and insert the following in its place: 


Upon
the occurrence of an event set forth in Section 11.2.1 above, Owner may provide written notice to Design-Builder that it intends to terminate the Agreement unless the problem cited is
cured, or
commenced to be cured, within seven (7) days of Design-Builder's receipt of such notice. If Design-Builder fails to cure, or reasonably commence to cure and thereafter
diligently pursue to cure, such problem, then Owner may give a second written notice to Design-Builder of its intent to terminate within an additional seven (7) day
period. If Design-Builder, within such second seven (7) day period, fails to cure, or reasonably commence to cure and thereafter diligently pursue to
cure, such problem, then Owner may declare the Agreement terminated for default by providing written notice to Design-Builder of such declaration. 


SC—11.3.1  


Amend
Section 11.3.1 of the General Conditions by inserting the following language at the end of subsection .2 of such section: "For purposes of clarification, in the event Owner has disputed,
pursuant to Section 6.3.1 of the General Conditions, amounts Designer-Builder has billed Owner under the Contract, such disputed amounts shall not be considered "due" unless and until such
disputed amounts have been determined pursuant to such Section 6.3.1, and if necessary pursuant to Article 10 of the General Conditions, to be owed by Owner to Design-Builder." and as so
amended, Section 11.3.1. shall read as follows: 


11.3.1 Design-Builder may, in addition to any other rights afforded under the Contract Documents or at law, stop work for the following reasons: 


.1
Owner's failure to provide financial assurances as required under Section 3.3 hereof; or 


.2
Owner's failure to pay amounts properly due under Design-Builder's Application for Payment. For purposes of clarification, in the event Owner has disputed, pursuant to Section 6.3.1 of the
General Conditions, amounts Designer-Builder has billed Owner under the Contract, such disputed amounts shall not be considered "due" unless and until such disputed amounts have been determined
pursuant to-such Section 6.3.1, and if necessary pursuant to Article 10 of the General Conditions, to be owed by Owner to Design-Builder." 


SC—11.3.2  


Delete
Section 11.3.2 of the General Conditions in its entirety and insert the following in its place: 


Should
any of the events set forth in Section 11.3.1 above occur, Design-Builder has the right to provide Owner with written notice that Design-Builder will stop work unless said event is cured
within seven (7) days from Owner's receipt of Design-Builder's notice. If Owner fails to cure, or reasonably commence to cure, such problem, then Design-Builder may give a second written notice
to Owner of its intent to stop work within an additional seven (7) day period. If Owner, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such
problem, then Design-Builder may stop work. In such case, Design-Builder shall be entitled to make a claim for adjustment to the Contract Price and Contract Time(s) to the extent it has been adversely
impacted by such stoppage. 


5







 



SC—11.4.1  


Amend
Section 11.4.1 of the General Conditions by inserting the phrase "in whole, or, in the case of such stoppage due to court order or any government authority having jurisdiction over the
Work, in part," in subsection .1 of such section; and as so amended, Section 11.4.1 reads as follows: 


11.4.1    Design-Builder, in addition to any other rights and remedies provided in the Contract Documents or by law, may terminate the
Agreement for cause for the following reasons: 


.1
The Work has been stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the Project, because of court order, any government authority having
jurisdiction over the Work or orders by Owner under Section 11.1.1 hereof, provided that such stoppages are not due in whole, or, in the case of such stoppage due to court order or any
government authority having jurisdiction over the Work, in part, to the acts or omissions of Design-Builder or anyone for whose acts Design-Builder may be responsible. 


.2
Owner's failure to provide Design-Builder with any information, permits or approvals that are Owner's responsibility under the Contract Documents which result in the Work being stopped for sixty
(60) consecutive days, or more than ninety (90) days during the duration of the Project, even though Owner has not ordered Design-Builder in writing to stop and suspend the Work pursuant
to Section 11.1.1 hereof. 


.3
Owner's failure to cure the problems set forth in Section 11.3.1 above after Design-Builder has stopped the Work. 


6









DBIA  


 [LOGO]  


 DESIGN-BUILD

INSTITUTE OF AMERICA  


 Standard Form of General Conditions

of Contract Between Owner and Design-Builder  


This document has important legal consequences. Consultation with

an attorney is recommended with respect to its completion or modification.




 
 

Table of Contents    
    



	Article 1: General	 	2
	

Article 2: Design-Builder's Services and Responsibilities	
 	

3
	

Article 3: Owner's Services and Responsibilities	
 	

7
	

Article 4: Hazardous Conditions and Differing Site Conditions	
 	

8
	

Article 5: Insurance and Bonds	
 	

9
	

Article 6: Payment	
 	

11
	

Article 7: Indemnification	
 	

14
	

Article 8: Time	
 	

15
	

Article 9: Changes to the Contract Price and Time	
 	

16
	

Article 10: Contract Adjustments and Disputes	
 	

17
	

Article 11: Stop Work and Termination for Cause	
 	

19
	

Article 12: Miscellaneous	
 	

21










  



 
 

Article 1    
    
    General    
    


1.1   Mutual Obligations  



1.1.1    Owner and Design-Builder commit at all times to cooperate fully with each other, and proceed on the basis of trust and good faith, to
permit each party to realize the benefits afforded under the Contract Documents. 


1.2   Basic Definitions  


1.2.1    Agreement refers to the executed contract between Owner and Design-Builder under
either DBIA Document No. 525, Standard Form of Agreement Between Owner and Design-Builder c Lump Sum (1998 Edition) or DBIA Document
No. 530, Standard Form of Agreement Between Owner and Design-Builder c Cost Plus Fee with an Option for a Guaranteed Maximum Price (1998
Edition). 


1.2.2    Day or Days shall mean calendar days
unless otherwise specifically noted in the Contract Documents. 


1.2.3    Design Consultant is a qualified, licensed design professional who is not an employee
of Design-Builder, but is retained by Design-Builder, or employed or retained by anyone under contract with Design-Builder or Subcontractor, to furnish design services required under the Contract
Documents. 


1.2.4    Hazardous Conditions are any materials, wastes, substances and chemicals deemed to be
hazardous under applicable Legal Requirements, or the handling, storage, remediation, or disposal of which are regulated by applicable Legal Requirements. 


1.2.5    General Conditions of Contract refer to this DBIA Document No. 535,  Standard Form of General
Conditions of Contract Between Owner and Design-Builder (1998 Edition). 


1.2.6    Legal Requirements are all applicable federal, state and local laws, codes,
ordinances, rules, regulations, orders and decrees of any government or quasi-government entity having jurisdiction over the Project or Site, the practices involved in the Project or Site, or any
Work. 


1.2.7    Owner's Project Criteria are developed by or for Owner to describe Owner's program
requirements and objectives for the Project, including use, space, price, time, site and expandability requirements, as well as submittal requirements and other requirements governing Design-Builder's
performance of the Work. Owner's Project Criteria may include conceptual documents, design criteria, performance requirements and other Project-specific technical materials and requirements. 



1.2.8    Site is the land or premises on which the Project is located. 


1.2.9    Subcontractor is any person or entity retained by Design-Builder as an independent contractor to perform a
portion of the Work and shall include materialmen and suppliers. 


1.2.10    Sub-Subcontractor is any person or entity retained by a Subcontractor as an independent
contractor to perform any portion of a Subcontractor's Work and shall include materialmen and suppliers. 


1.2.11    Substantial Completion is the date on which the Work, or an agreed upon portion of the Work, is sufficiently
complete so that Owner can occupy and use the Project or a portion thereof for its intended purposes. 


2







 



1.2.12    Work is comprised of all Design-Builder's design, construction and other services required by the Contract
Documents, including procuring and furnishing all materials, equipment, services and labor reasonably inferable from the Contract Documents. 


 
 

Article 2    
    
    Design-Builder's Services and Responsibilities    
    


2.1   General Services  


2.1.1    Design-Builder's Representative shall be reasonably available to Owner and shall have the necessary expertise and experience required
to supervise the Work. Design-Builder's Representative shall communicate regularly with Owner and shall be vested with the authority to act on behalf of Design-Builder. Design-Builder's Representative
may be replaced only with the mutual agreement of Owner and Design-Builder. 


2.1.2    Design-Builder shall provide Owner with a monthly status report detailing the progress of the Work, including whether (i) the
Work is proceeding according to schedule, (ii) discrepancies, conflicts, or ambiguities exist in the Contract Documents that require resolution, (iii) health and safety issues exist in
connection with the Work, and (iv) other items require resolution so as not to jeopardize Design-Builder's ability to complete the Work for the Contract Price and within the Contract Time(s). 



2.1.3    Design-Builder shall prepare and submit, at least three (3) days prior to the meeting contemplated by Section 2.1.4
hereof, a schedule for the execution of the Work for Owner's review and response. The schedule shall indicate the dates for the start and completion of the various stages of Work, including the dates
when Owner information and approvals are required to enable Design-Builder to achieve the Contract Time(s). The schedule shall be revised as required by conditions and progress of the Work, but such
revisions shall not relieve Design-Builder of its obligations to complete the Work within the Contract Time(s), as such dates may be adjusted in accordance with the Contract Documents. Owner's review
of and response to the schedule shall not be construed as relieving Design-Builder of its complete and exclusive control over the means, methods, sequences and techniques for executing the Work. 


2.1.4    The parties will meet within seven (7) days after execution of the Agreement to discuss issues affecting the administration of
the Work and to implement the necessary procedures, including those relating to submittals and payment, to facilitate the ability of the parties to perform their obligations under the Contract
Documents. 


2.2   Design Professional Services  


2.2.1    Design-Builder shall, consistent with applicable state licensing laws, provide through qualified, licensed design professionals
employed by Design-Builder, or procured from qualified, independent licensed Design Consultants, the necessary design services, including architectural, engineering and other design professional
services, for the preparation of the required drawings, specifications and other design submittals to permit Design-Builder to complete the Work consistent with the Contract Documents. Nothing in the
Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Design Consultant. 


2.3   Standard of Care for Design Professional Services  


2.3.1    The standard of care for all design professional services performed to execute the Work shall be the care and skill ordinarily used
by members of the design profession practicing under similar 


3







 



conditions
at the same time and locality of the Project. Notwithstanding the preceding sentence, if the parties agree upon specific performance standards for any aspect of the Work, which standards
are to be set forth in an exhibit to the Agreement entitled "Performance Standard Requirements," the design professional services shall be performed to achieve such standards. 


2.4   Design Development Services  


2.4.1    Design-Builder and Owner shall, consistent with any applicable provision of the Contract Documents, agree upon any interim design
submissions that Owner may wish to review, which interim design submissions may include design criteria, drawings, diagrams and specifications setting forth the Project requirements. On or about the
time of the scheduled submissions, Design-Builder and Owner shall meet and confer about the submissions, with Design-Builder identifying during such meetings, among other things, the evolution of the
design and any significant changes or deviations from the Contract Documents, or, if applicable, previously submitted design submissions. Minutes of the meetings will be maintained by Design-Builder
and provided to all attendees for review. Following the design review meeting, Owner shall review and approve the interim design submissions in a time that is consistent with the turnaround times set
forth in Design-Builder's schedule. 


2.4.2    Design-Builder shall submit to Owner Construction Documents setting forth in detail drawings and specifications describing the
requirements for construction of the Work. The Construction Documents shall be consistent with the latest set of interim design submissions, as such submissions may have been modified in a design
review meeting. The parties shall have a design review meeting to discuss, and Owner shall review and approve, the Construction Documents in accordance with the procedures set forth
Section 2.4.1 above. Design-Builder shall proceed with construction in accordance with the approved Construction Documents and shall submit one set of approved Construction Documents to Owner
prior to commencement of construction. 


2.4.3    Owner's review and approval of interim design submissions and the Construction Documents is for the purpose of mutually establishing
a conformed set of Contract Documents compatible with the requirements of the Work. Neither Owner's review nor approval of any interim design submissions and Construction Documents shall be deemed to
transfer any design liability from Design-Builder to Owner. 


2.4.4    To the extent not prohibited by the Contract Documents or Legal Requirements, Design-Builder may prepare interim design submissions
and Construction Documents for a portion of the Work to permit construction to proceed on that portion of the Work prior to completion of the Construction Documents for the entire Work. 


2.5   Legal Requirements  


2.5.1    Design-Builder shall perform the Work in accordance with all Legal Requirements and shall provide all notices applicable to the Work
as required by the Legal Requirements. 


2.5.2    The Contract Price and/or Contract Time(s) shall be adjusted to compensate Design-Builder for the effects of any changes in the Legal
Requirements enacted after the date of the Agreement affecting the performance of the Work, or if a Guaranteed Maximum Price is established after the date of the Agreement, the date the parties agree
upon the Guaranteed Maximum Price. Such effects may include, without limitation, revisions Design-Builder is required to make to the Construction Documents because of changes in Legal Requirements. 


4







 



2.6   Government Approvals and Permits  


2.6.1    Except as identified in an Owner's Permit List attached as an exhibit to the Agreement, Design-Builder shall obtain and pay for all
necessary permits, approvals, licenses, government charges and inspection fees required for the prosecution of the Work by any government or quasi-government entity having jurisdiction over the
Project. 


2.6.2    Design-Builder shall provide reasonable assistance to Owner in obtaining those permits, approvals and licenses that are Owner's
responsibility. 


2.7   Design-Builder's Construction Phase Services  


2.7.1    Unless otherwise provided in the Contract Documents to be the responsibility of Owner or a separate contractor, Design-Builder shall
provide through itself or Subcontractors the necessary supervision, labor, inspection, testing, start-up, material, equipment, machinery, temporary utilities and other temporary facilities
to permit Design-Builder to complete construction of the Project consistent with the Contract Documents. 


2.7.2    Design-Builder shall perform all construction activities efficiently and with the requisite expertise, skill and competence to
satisfy the requirements of the Contract Documents. Design-Builder shall at all times exercise complete and exclusive control over the means, methods, sequences and techniques of construction. 


2.7.3    Design-Builder shall employ only Subcontractors who are duly licensed and qualified to perform the Work consistent with the Contract
Documents. Owner may reasonably object to Design-Builder's selection of any Subcontractor, provided that the Contract Price and/or Contract Time(s) shall be adjusted to the extent that Owner's
decision impacts Design-Builder's cost and/or time of performance. 


2.7.4    Design-Builder assumes responsibility to Owner for the proper performance of the Work of Subcontractors and any acts and omissions in
connection with such performance. Nothing in the Contract Documents is intended or deemed to create any legal or contractual relationship between Owner and any Subcontractor or
Sub-Subcontractor, including but not limited to any third-party beneficiary rights. 


2.7.5    Design-Builder shall coordinate the activities of all Subcontractors. If Owner performs other work on the Project or at the Site with
separate contractors under Owner's control, Design-Builder agrees to reasonably cooperate and coordinate its activities with those of such separate contractors so that the Project can be completed in
an orderly and coordinated manner without unreasonable disruption. 


2.7.6    Design-Builder shall keep the Site reasonably free from debris, trash and construction wastes to permit Design-Builder to perform its
construction services efficiently, safely and without interfering with the use of adjacent land areas. Upon Substantial Completion of the Work, or a portion of the Work, Design-Builder shall remove
all debris, trash, construction wastes, materials, equipment, machinery and tools arising from the Work or applicable portions thereof to permit Owner to occupy the Project or a portion of the Project
for its intended use. 



2.8   Design-Builder's Responsibility for Project Safety  


2.8.1    Design-Builder recognizes the importance of performing the Work in a safe manner so as to prevent damage, injury or loss to
(i) all individuals at the Site, whether working or visiting, (ii) the Work, including materials and equipment incorporated into the Work or stored on-Site or
off-Site, and (iii) all other property at the Site or adjacent thereto. Design-Builder assumes responsibility for implementing and monitoring all safety precautions and programs
related to the performance of the 


5







 



Work.
Design-Builder shall, prior to commencing construction, designate a Safety Representative with the necessary qualifications and experience to supervise the implementation and monitoring of all
safety precautions and programs related to the Work. Unless otherwise required by the Contract Documents, Design-Builder's Safety Representative shall be an individual stationed at the Site who may
have responsibilities on the Project in addition to safety. The Safety Representative shall make routine daily inspections of the Site and shall hold weekly safety meetings with Design-Builder's
personnel, Subcontractors and others as applicable. 


2.8.2    Design-Builder and Subcontractors shall comply with all Legal Requirements relating to safety, as well as any Owner-specific safety
requirements set forth in the Contract Documents, provided that such Owner-specific requirements do not violate any applicable Legal Requirement. Design-Builder will immediately report in writing any
safety-related injury, loss, damage or accident arising from the Work to Owner's Representative and, to the extent mandated by Legal Requirements, to all government or quasi-government authorities
having jurisdiction over safety-related matters involving the Project or the Work. 


2.8.3    Design-Builder's responsibility for safety under this Section 2.8 is not intended in any way to relieve Subcontractors and
Sub-Subcontractors of their own contractual and legal obligations and responsibility for (i) complying with all Legal Requirements, including those related to health and safety
matters, and (ii) taking all necessary measures to implement and monitor all safety precautions and programs to guard against injury, losses, damages or accidents resulting from their
performance of the Work. 


2.9   Design-Builder's Warranty  


2.9.1    Design-Builder warrants to Owner that the construction, including all materials and equipment furnished as part of the construction,
shall be new unless otherwise specified in the Contract Documents, of good quality, in conformance with the Contract Documents and free of defects in materials and workmanship. Design-Builder's
warranty obligation excludes defects caused by abuse, alterations, or failure to maintain the Work by persons other than Design-Builder or anyone for whose acts Design-Builder may be liable. Nothing
in this warranty is intended to limit any manufacturer's warranty which provides Owner with greater warranty rights than set forth in this Section 2.9 or the Contract Documents. Design-Builder
will provide Owner with all manufacturers' warranties upon Substantial Completion. 


2.10 Correction of Defective Work  


2.10.1    Design-Builder agrees to correct any Work that is found to not be in conformance with the Contract Documents, including that part of
the Work subject to Section 2.9 hereof, within a period of one year from the date of Substantial Completion of the Work or any portion of the Work, or within such longer period to the extent
required by the Contract Documents. 


2.10.2    Design-Builder shall, within seven (7) days of receipt of written notice from Owner that the Work is not in conformance with
the Contract Documents, take meaningful steps to commence correction of such nonconforming Work, including the correction, removal or replacement of the nonconforming Work and any damage caused to
other parts of the Work affected by the nonconforming Work. If Design-Builder fails to commence the necessary steps within such seven (7) day period, Owner, in addition to any other remedies
provided under the Contract Documents, may provide Design-Builder with written notice that Owner will commence correction of such nonconforming Work with its own forces. If Owner does perform such
corrective Work, Design-Builder shall be responsible for all reasonable costs incurred by Owner in performing such correction. If the 


6







 



nonconforming
Work creates an emergency requiring an immediate response, the seven (7) day periods identified herein shall be deemed inapplicable. 



2.10.3    The one year period referenced in Section 2.10.1 above applies only to Design-Builder's obligation to correct nonconforming
Work and is not intended to constitute a period of limitations for any other
rights or remedies Owner may have regarding Design-Builder's other obligations under the Contract Documents. 


 
 

Article 3    
    
    Owner's Services and Responsibilities    
    


3.1   Duty to Cooperate  


3.1.1    Owner shall, throughout the performance of the Work, cooperate with Design-Builder and perform its responsibilities, obligations and
services in a timely manner to facilitate Design-Builder's timely and efficient performance of the Work and so as not to delay or interfere with Design-Builder's performance of its obligations under
the Contract Documents. 


3.1.2    Owner shall provide timely reviews and approvals of interim design submissions and Construction Documents consistent with the
turnaround times set forth in Design-Builder's schedule. 


3.2   Furnishing of Services and Information  


3.2.1    Unless expressly stated to the contrary in the Contract Documents, Owner shall provide, at its own cost and expense, for
Design-Builder's information and use the following, all of which Design-Builder is entitled to rely upon in performing the Work: 



	.1
	Surveys describing the property, boundaries, topography and reference points for use during construction, including existing service and
utility lines;



	.2
	Geotechnical studies describing subsurface conditions, and other surveys describing other latent or concealed physical conditions at the
Site;



	.3
	Temporary and permanent easements, zoning and other requirements and encumbrances affecting land use, or necessary to permit the proper
design and construction of the Project and enable Design-Builder to perform the Work;



	.4
	A legal description of the Site;



	.5
	To the extent available, as-built and record drawings of any existing structures at the Site; and



	.6
	To the extent available, environmental studies, reports and impact statements describing the environmental conditions, including
Hazardous Conditions, in existence at the Site. 




3.2.2    Owner is responsible for securing and executing all necessary agreements with adjacent land or property owners that are necessary to
enable Design-Builder to perform the Work. Owner is further responsible for all costs, including attorneys' fees, incurred in securing these necessary agreements. 


3.3   Financial Information  


3.3.1    At Design-Builder's request, Owner shall promptly furnish reasonable evidence satisfactory to Design-Builder that Owner has adequate
funds available and committed to fulfill all of Owner's contractual obligations under the Contract Documents. If Owner fails to furnish such financial 


7







 



information
in a timely manner, Design-Builder may stop Work under Section 11.3 hereof or exercise any other right permitted under the Contract Documents. 


3.3.2    Design-Builder shall cooperate with the reasonable requirements of Owner's lenders or other financial sources. Notwithstanding the
preceding sentence, after execution of the Agreement Design-Builder shall have no obligation to execute for Owner or Owner's lenders or other financial sources any documents or agreements that require
Design-Builder to assume obligations or responsibilities greater than those existing obligations Design-Builder has under the Contract Documents. 


3.4   Owner's Representative  


3.4.1    Owner's Representative shall be responsible for providing Owner-supplied information and approvals in a timely manner to permit
Design-Builder to fulfill its obligations under the Contract Documents. Owner's Representative shall also provide Design-Builder with prompt notice if it observes any failure on the part of
Design-Builder to fulfill its contractual obligations, including any errors, omissions or defects in the performance of the Work. 


3.5   Government Approvals and Permits  


3.5.1    Owner shall obtain and pay for all necessary permits, approvals, licenses, government charges and inspection fees set forth in the
Owner's Permit List attached as an exhibit to the Agreement. 


3.5.2    Owner shall provide reasonable assistance to Design-Builder in obtaining those permits, approvals and licenses that are
Design-Builder's responsibility. 


3.6   Owner's Separate Contractors  


3.6.1    Owner is responsible for all work performed on the Project or at the Site by separate contractors under Owner's control. Owner shall
contractually require its separate contractors to cooperate with, and coordinate their activities so as not to interfere with, Design-Builder in order to enable Design-Builder to timely complete the
Work consistent with the Contract Documents. 


 
 

Article 4    
    
    Hazardous Conditions and Differing Site Conditions    
    



4.1   Hazardous Conditions  


4.1.1    Unless otherwise expressly provided in the Contract Documents to be part of the Work, Design-Builder is not responsible for any
Hazardous Conditions encountered at the Site. Upon encountering any Hazardous Conditions, Design-Builder will stop Work immediately in the affected area and duly notify Owner and, if required by Legal
Requirements, all government or quasi-government entities with jurisdiction over the Project or Site. 


4.1.2    Upon receiving notice of the presence of suspected Hazardous Conditions, Owner shall take the necessary measures required to ensure
that the Hazardous Conditions are remediated or rendered harmless. Such necessary measures shall include Owner retaining qualified independent experts to (i) ascertain whether Hazardous
Conditions have actually been encountered, and, if they have been encountered, (ii) prescribe the remedial measures that Owner must take either to remove the Hazardous Conditions or render the
Hazardous Conditions harmless. 


8









  




4.1.3    Design-Builder shall be obligated to resume Work at the affected area of the Project only after Owner's expert provides it with
written certification that (i) the Hazardous Conditions have been removed or rendered harmless and (ii) all necessary approvals have been obtained from all government and
quasi-government entities having jurisdiction over the Project or Site. 


4.1.4    Design-Builder will be entitled, in accordance with these General Conditions of Contract, to an adjustment in its Contract Price
and/or Contract Time(s) to the extent Design-Builder's cost and/or time of performance have been adversely impacted by the presence of Hazardous Conditions. 


4.1.5    To the fullest extent permitted by law, Owner shall indemnify, defend and hold harmless Design-Builder, Design Consultants,
Subcontractors, anyone employed directly or indirectly for any of them, and their officers, directors, employees and agents, from and against any and all claims, losses, damages, liabilities and
expenses, including attorneys' fees and expenses, arising out of or resulting from the presence, removal or remediation of Hazardous Conditions at the Site. 


4.1.6    Notwithstanding the preceding provisions of this Section 4.1, Owner is not responsible for Hazardous Conditions introduced to
the Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. Design-Builder shall indemnify, defend and hold harmless Owner and Owner's officers, directors, employees and
agents from and against all claims, losses, damages, liabilities and expenses, including attorneys' fees and expenses, arising out of or resulting from those Hazardous Conditions introduced to the
Site by Design-Builder, Subcontractors or anyone for whose acts they may be liable. 


4.2   Differing Site Conditions  


4.2.1    Concealed or latent physical conditions or subsurface conditions at the Site that (i) materially differ from the conditions
indicated in the Contract Documents or (ii) are of an unusual nature, differing materially from the conditions ordinarily encountered and generally recognized as inherent in the Work are
collectively referred to herein as "Differing Site Conditions." If Design-Builder encounters a Differing Site Condition, Design-Builder will be entitled to an adjustment in the Contract Price and/or
Contract Time(s) to the extent Design-Builder's cost and/or time of performance are adversely impacted by the Differing Site Condition. 


4.2.2    Upon encountering a Differing Site Condition, Design-Builder shall provide prompt written notice to Owner of such condition, which
notice shall not be later than fourteen (14) days after such condition has been encountered. Design-Builder shall, to the extent reasonably possible, provide such notice before the Differing
Site Condition has been substantially disturbed or altered. 


 
 

Article 5    
    
    Insurance and Bonds    
    


5.1   Design-Builder's Insurance Requirements  


5.1.1    Design-Builder is responsible for procuring and maintaining from insurance companies authorized to do business in the state in which
the Project is located, and with a minimum rating set forth in the Agreement, the following insurance coverages for certain claims which may arise from or out of the performance of the Work and
obligations under the Contract Documents: 



	.1
	Coverage for claims arising under workers' compensation, disability and other similar employee benefit laws applicable to the Work;



	.2
	Coverage for claims by Design-Builder's employees for bodily injury, sickness, disease, or death; 



9







 



	.3
	Coverage for claims by any person other than Design-Builder's employees for bodily injury, sickness, disease, or death;



	.4
	Coverage for usual personal injury liability claims for damages sustained by a person as a direct or indirect result of Design-Builder's
employment of the person, or sustained by any other person;



	.5
	Coverage for claims for damages (other than to the Work) because of injury to or destruction of tangible property, including loss of
use;



	.6
	Coverage for claims of damages because of personal injury or death, or property damage resulting from ownership, use and maintenance of
any motor vehicle; and



	.7
	Coverage for contractual liability claims arising out of Design-Builder's obligations under Section 7.4.1 hereof. 




5.1.2    Design-Builder's liability insurance required by Section 5.1.1 above shall be written for the coverage amounts set forth in
the Agreement and shall include completed operations insurance for the period of time set forth in the Agreement. 


5.1.3    Design-Builder's liability insurance set forth in Sections 5.1.1.1 through 5.1.1.7 above shall specifically delete any design-build
or similar exclusions that could compromise coverages because of the design-build delivery of the Project. 


5.1.4    To the extent Owner requires Design-Builder or any Design Consultant to provide professional liability insurance for claims arising
from the negligent performance of design services by Design-Builder or the Design Consultant, the coverage limits, duration and other specifics of such insurance shall be as set forth in the
Agreement. Any professional liability shall specifically delete any design-build or similar exclusions that could compromise coverages because of the design-build delivery of the Project. Such
policies shall be provided prior to the commencement of any design services hereunder. 


5.1.5    Prior to commencing any construction services hereunder, Design-Builder shall provide Owner with certificates evidencing that
(i) all insurance obligations required by the Contract Documents are in full force and in effect and will remain in effect for the duration required by the Contract Documents and (ii) no
insurance coverage will be canceled, renewal refused, or materially changed unless at least thirty (30) days prior written notice is given to Owner. 


5.2   Owner's Liability Insurance  


5.2.1    Owner shall procure and maintain from insurance companies authorized to do business in the state in which the Project is located such
liability insurance to protect Owner from claims which may arise from the performance of Owner's obligations under the Contract Documents or Owner's conduct during the course of the Project. 



5.3   Owner's Property Insurance  


5.3.1    Unless otherwise provided in the Contract Documents, Owner shall procure and maintain from insurance companies authorized to do
business in the state in which the Project is located property insurance upon the entire Project to the full insurable value of the Project, including professional fees, overtime premiums and all
other expenses incurred to replace or repair the insured property. The property insurance obtained by Owner shall include as additional insureds the interests of Owner, Design-Builder, Design
Consultants, Subcontractors and Sub-Subcontractors, and shall insure against the perils of fire and extended coverage, theft, vandalism, malicious mischief, collapse, flood, earthquake,
debris removal and other perils or causes of loss as called for in the Contract Documents. The property insurance shall include physical loss or damage to the Work, including materials and 


10







 



equipment
in transit, at the Site or at another location as may be indicated in Design-Builder's Application for Payment and approved by Owner. 


5.3.2    Unless the Contract Documents provide otherwise, Owner shall procure and maintain boiler and machinery insurance that will include
the interests of Owner, Design-Builder, Design Consultants, Subcontractors and Sub-Subcontractors. 


5.3.3    Prior to Design-Builder commencing any Work, Owner shall provide Design-Builder with certificates evidencing that (i) all
Owner's insurance obligations required by the Contract Documents are in full force and in effect and will remain in effect until Design-Builder has completed all of the Work and has received final
payment from Owner and (ii) no insurance coverage will be canceled, renewal refused, or materially changed unless at least thirty (30) days prior written notice is given to Design-
Builder. Owner's property insurance shall not lapse or be canceled if Owner occupies a portion of the Work pursuant to Section 6.6.3 hereof. Owner shall provide Design-Builder with the
necessary endorsements from the insurance company prior to occupying a portion of the Work. 


5.3.4    Any loss covered under Owner's property insurance shall be adjusted with Owner and Design-Builder and made payable to both of them as
trustees for the insureds as their interests may appear, subject to any applicable mortgage clause. All insurance proceeds received as a result of any loss will be placed in a separate account and
distributed in accordance with such agreement as the interested parties may reach. Any disagreement concerning the distribution of any proceeds will be resolved in accordance with Article 10
hereof. 


5.3.5    Owner and Design-Builder waive against each other and Owner's separate contractors, Design Consultants, Subcontractors, agents and
employees of each and all of them, all damages covered by property insurance provided herein, except such rights as they may have to the proceeds of such insurance. Design-Builder and Owner shall,
where appropriate, require similar waivers of subrogation from Owner's separate contractors, Design Consultants and Subcontractors and shall require each of them to include similar waivers in their
contracts. 


5.4   Bonds and Other Performance Security  


5.4.1    If Owner requires Design-Builder to obtain performance and labor and material payment bonds, or other forms of performance security,
the amount, form and other conditions of such security shall be as set forth in the Agreement. 


 
 

Article 6    
    
    Payment    
    



6.1   Schedule of Values  


6.1.1    Within ten (10) days of execution of the Agreement, Design-Builder shall submit for Owner's review and approval a schedule of
values for all of the Work. The Schedule of Values will (i) subdivide the Work into its respective parts, (ii) include values for all items comprising the Work and (iii) serve as
the basis for monthly progress payments made to Design-Builder throughout the Work. 



6.2   Monthly Progress Payments  


6.2.1    On or before the date established in the Agreement, Design-Builder shall submit for Owner's review and approval its Application for
Payment requesting payment for all Work performed as of the date of the Application for Payment. The Application for Payment shall be accompanied by all 


11







 



supporting
documentation required by the Contract Documents and/or established at the meeting required by Section 2.1.4 hereof. 



6.2.2    The Application for Payment may request payment for equipment and materials not yet incorporated into the Project, provided that
(i) Owner is satisfied that the equipment and materials are
suitably stored at either the Site or another acceptable location, (ii) the equipment and materials are protected by suitable insurance and (iii) upon payment, Owner will receive the
equipment and materials free and clear of all liens and encumbrances. 


6.2.3    The Application for Payment shall constitute Design-Builder's representation that the Work has been performed consistent with the
Contract Documents, has progressed to the point indicated in the Application for Payment, and that title to all Work will pass to Owner free and clear of all claims, liens, encumbrances, and security
interests upon the incorporation of the Work into the Project, or upon Design-Builder's receipt of payment, whichever occurs earlier. 


6.3   Withholding of Payments  


6.3.1    On or before the date established in the Agreement, Owner shall pay Design-Builder all amounts properly due. If Owner determines that
Design-Builder is not entitled to all or part of an Application for Payment, it will notify Design-Builder in writing at least five (5) days prior to the date payment is due. The notice shall
indicate the specific amounts Owner intends to withhold, the reasons and contractual basis for the withholding, and the specific measures Design-Builder must take to rectify Owner's concerns.
Design-Builder and Owner will attempt to resolve Owner's concerns prior to the date payment is due. If the parties cannot resolve such concerns, Design-Builder may pursue its rights under the Contract
Documents, including those under Article 10 hereof. 


6.3.2    Notwithstanding anything to the contrary in the Contract Documents, Owner shall pay Design-Builder all undisputed amounts in an
Application for payment within the times required by the Agreement. 



6.4   Right to Stop Work and Interest  


6.4.1    If Owner fails to pay Design-Builder any amount that becomes due, Design-Builder, in addition to all other remedies provided in the
Contract Documents, may stop Work pursuant to Section 11.3 hereof. All payments due and unpaid shall bear interest at the rate set forth in the Agreement. 


6.5   Design-Builder's Payment Obligations  


6.5.1    Design-Builder will pay Design Consultants and Subcontractors, in accordance with its contractual obligations to such parties, all
the amounts Design-Builder has received from Owner on account of their work. Design-Builder will impose similar requirements on Design Consultants and Subcontractors to pay those parties with whom
they have contracted. Design-Builder will indemnify and defend Owner against any claims for payment and mechanic's liens as set forth in Section 7.3 hereof. 


6.6   Substantial Completion  


6.6.1    Design-Builder shall notify Owner when it believes the Work, or to the extent permitted in the Contract Documents, a portion of the
Work, is substantially complete. Within five (5) days of Owner's receipt of Design-Builder's notice, Owner and Design-Builder will jointly inspect such Work to verify that it is substantially
complete in accordance with the requirements of the Contract Documents. If such Work is substantially complete, Owner shall prepare and issue a Certificate of Substantial Completion that will set
forth (i) the date of Substantial Completion of the Work or portion thereof, 


12







 



(ii) the
remaining items of Work that have to be completed before final payment, (iii) provisions (to the extent not already provided in the Contract Documents) establishing Owner's and
Design-Builder's responsibility for the Project's security, maintenance, utilities and insurance pending final payment and (iv) an acknowledgment that warranties commence to run on the date of
Substantial Completion, except as may otherwise be noted in the Certificate of Substantial Completion. 


6.6.2    Upon Substantial Completion of the entire Work or, if applicable, any portion of the Work, Owner shall release to Design-Builder all
retained amounts relating, as applicable, to the entire Work or completed portion of the Work, less an amount equal to the reasonable value of all remaining or incomplete items of Work as noted in the
Certificate of Substantial Completion. 


6.6.3    Owner, at its option, may use a portion of the Work which has been determined to be substantially complete, provided, however, that
(i) a Certificate of Substantial Completion has been issued for the portion of Work addressing the items set forth in Section 6.6.1 above, (ii) Design-Builder and Owner have
obtained the consent of their sureties and insurers, and to the extent applicable, the appropriate government authorities having jurisdiction over the Project, and (iii) Owner and
Design-Builder agree that Owner's use or occupancy will not interfere with Design-Builder's completion of the remaining Work. 



6.7   Final Payment  


6.7.1    After receipt of a Final Application for Payment from Design-Builder, Owner shall make final payment by the time required in the
Agreement, provided that Design-Builder has completed all of the Work in conformance with the Contract Documents. 


6.7.2    At the time of submission of its Final Application for Payment, Design-Builder shall provide the following information: 



	.1
	an affidavit that there are no claims, obligations or liens outstanding or unsatisfied for labor, services, material, equipment, taxes
or other items performed, furnished or incurred for or in connection with the Work which will in any way affect Owner's interests;



	.2
	a general release executed by Design-Builder waiving, upon receipt of final payment by Design-Builder, all claims, except those claims
previously made in writing to Owner and remaining unsettled at the time of final payment;



	.3
	consent of Design-Builder's surety, if any, to final payment;



	.4
	all operating manuals, warranties and other deliverables required by the Contract Documents; and



	.5
	certificates of insurance confirming that required coverages will remain in effect consistent with the requirements of the Contract
Documents. 




6.7.3    Upon making final payment, Owner waives all claims against Design-Builder except claims relating to (i) Design-Builder's
failure to satisfy its payment obligations, if such failure affects Owner's interests, (ii) Design-Builder's failure to complete the Work consistent with the Contract Documents, including
defects appearing after Substantial Completion and (iii) the terms of any special warranties required by the Contract Documents. 


13







 


 
 

Article 7    
    
    Indemnification    
    


7.1   Patent and Copyright Infringement  


7.1.1    Design-Builder shall defend any action or proceeding brought against Owner based on any claim that the Work, or any part thereof, or
the operation or use of the Work or any part thereof, constitutes infringement of any United States patent or copyright, now or hereafter issued. Owner shall give prompt written notice to
Design-Builder of any such action or proceeding and will reasonably provide authority, information and assistance in the defense of same. Design-Builder shall indemnify and hold harmless Owner from
and against all damages and costs, including but not limited to attorneys' fees and expenses awarded against Owner or Design-Builder in any such action or proceeding. Design-Builder agrees to keep
Owner informed of all developments in the defense of such actions. 


7.1.2    If Owner is enjoined from the operation or use of the Work, or any part thereof, as the result of any patent or copyright suit,
claim, or proceeding, Design-Builder shall at its sole expense take reasonable steps to procure the right to operate or use the Work. If Design-Builder cannot so procure such right within a reasonable
time, Design-Builder shall promptly, at Design-Builder's option and at Design-Builder's expense, (i) modify the Work so as to avoid infringement of any such patent or copyright or
(ii) replace said Work with Work that does not infringe or violate any such patent or copyright. 


7.1.3    Sections 7.1.1 and 7.1.2 above shall not be applicable to any suit, claim or proceeding based on infringement or violation of a
patent or copyright (i) relating solely to a particular process or product of a particular manufacturer specified by Owner and not offered or recommended by Design-Builder to Owner or
(ii) arising from modifications to the Work by Owner or its agents after acceptance of the Work. If the suit, claim or proceeding is based upon events set forth in the preceding sentence, Owner
shall defend, indemnify and hold harmless Design-Builder to the same extent Design-Builder is obligated to defend, indemnify and hold harmless Owner in Section 7.1.1 above. 


7.1.4    The obligations set forth in this Section 7.1 shall constitute the sole agreement between the parties relating to liability
for infringement of violation of any patent or copyright. 


7.2   Tax Claim Indemnification  


7.2.1    If, in accordance with Owner's direction, an exemption for all or part of the Work is claimed for taxes, Owner shall indemnify,
defend and hold harmless Design-Builder from and against any liability, penalty, interest, fine, tax assessment, attorneys' fees or other expenses or costs incurred by Design-Builder as a result of
any action taken by Design-Builder in accordance with Owner's directive. 


7.3   Payment Claim Indemnification  


7.3.1    Providing that Owner is not in breach of its contractual obligation to make payments to Design-Builder for the Work, Design-Builder
shall indemnify, defend and hold harmless Owner from any claims or mechanic's liens brought against Owner or against the Project as a result of the failure of Design-Builder, or those for whose acts
it is responsible, to pay for any services, materials, labor, equipment, taxes or other items or obligations furnished or incurred for or in connection with the Work. Within three (3) days of
receiving written notice from Owner that such a claim or mechanic's lien has been filed, Design-Builder shall commence to take the steps necessary to discharge said claim or lien, including, if
necessary, the furnishing of a mechanic's lien bond. If Design-Builder fails to do 


14







 



so,
Owner will have the right to discharge the claim or lien and hold Design-Builder liable for costs and expenses incurred, including attorneys' fees. 


7.4   Design-Builder's General Indemnification  


7.4.1    Design-Builder, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Owner, its officers, directors,
employees and agents from and against claims, losses, damages, liabilities, including attorneys' fees and expenses, for bodily injury, sickness or death, and property damage or destruction (other than
to the Work itself) to the extent resulting from the negligent acts or omissions of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone
for whose acts any of them may be liable. 


7.4.2    If an employee of Design-Builder, Design Consultants, Subcontractors, anyone employed directly or indirectly by any of them or anyone
for whose acts any of them may be liable has a claim against Owner, its officers, directors, employees, or agents, Design-Builder's indemnity obligation set forth in Section 7.4.1 above shall
not be limited by any limitation on the amount of damages, compensation or benefits payable by or for Design-Builder, Design Consultants, Subcontractors, or other entity under any employee benefit
acts, including workers' compensation or disability acts. 


7.5   Owner's General Indemnification  


7.5.1    Owner, to the fullest extent permitted by law, shall indemnify, hold harmless and defend Design-Builder and any of Design-Builder's
officers, directors, employees, or agents from and against claims, losses, damages, liabilities, including attorneys' fees and expenses, for bodily injury, sickness or death, and property damage or
destruction (other than to the Work itself) to the extent resulting from the negligent acts or omissions of Owner, it's officers, directors, employees, agents, and Owner's separate contractors or
anyone for whose acts any of them may be liable. 


 
 

Article 8    
    
    Time    
    



8.1   Obligation to Achieve the Contract Times  


8.1.1    Design-Builder agrees that it will commence performance of the Work and achieve the Contract Time(s) in accordance with
Article 5 of the Agreement. 


8.2   Delays to the Work  


8.2.1    If Design-Builder is delayed in the performance of the Work due to acts, omissions, conditions, events, or circumstances beyond its
control and due to no fault of its own or those for whom Design-Builder is responsible, the Contract Time(s) for performance shall be reasonably extended by Change Order. By way of example, events
that will entitle Design-Builder to an extension of the Contract Time(s) include acts or omissions of Owner or anyone under Owner's control (including separate contractors), changes in the Work,
Differing Site Conditions, Hazardous Conditions, wars, floods, labor disputes, unusual delay in transportation, epidemics abroad, earthquakes, adverse weather conditions not reasonably anticipated,
and other acts of God. 


8.2.2    In addition to Design-Builder's right to a time extension for those events set forth in Section 8.2.1 above, Design-Builder
shall also be entitled to an appropriate adjustment of the Contract Price provided, however, that the Contract Price shall not be adjusted for those events set forth in Section 8.2.1 above that
are beyond the control of both Design-Builder and Owner, including the events of war, floods, labor disputes, earthquakes, epidemics, adverse weather conditions not reasonably anticipated, and other
acts of God. 


15








  



 
 

Article 9    
    
    Changes to the Contract Price and Time    
    


9.1   Change Orders  


9.1.1    A Change Order is a written instrument issued after execution of the Agreement signed by Owner and Design-Builder, stating their
agreement upon all of the following: 



	.1
	The scope of the change in the Work;



	.2
	The amount of the adjustment to the Contract Price; and



	.3
	The extent of the adjustment to the Contract Time(s). 




9.1.2    All changes in the Work authorized by applicable Change Order shall be performed under the applicable conditions of the Contract
Documents. Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for such changes. 



9.1.3    If Owner requests a proposal for a change in the Work from Design-Builder and subsequently elects not to proceed with the change, a
Change Order shall be issued to reimburse Design-Builder for reasonable costs incurred for estimating services, design services and services involved in the preparation of proposed revisions to the
Contract Documents. 


9.2   Work Change Directives  


9.2.1    A Work Change Directive is a written order prepared and signed by Owner, directing a change in the Work prior to agreement on an
adjustment in the Contract Price and/or the Contract Time(s). 


9.2.2    Owner and Design-Builder shall negotiate in good faith and as expeditiously as possible the appropriate adjustments for the Work
Change Directive. Upon reaching an agreement, the parties shall prepare and execute an appropriate Change Order reflecting the terms of the agreement. 


9.3   Minor Changes in the Work  


9.3.1    Minor changes in the Work do not involve an adjustment in the Contract Price and/or Contract Time(s) and do not materially and
adversely affect the Work, including the design, quality, performance and workmanship required by the Contract Documents. Design-Builder may make minor changes in the Work consistent with the intent
of the Contract Documents, provided, however that Design-Builder shall promptly inform Owner, in writing, of any such changes and record such changes on the documents maintained by Design-Builder. 


9.4   Contract Price Adjustments  


9.4.1    The increase or decrease in Contract Price resulting from a change in the Work shall be determined by one or more of the following
methods: 



	.1
	Unit prices set forth in the Agreement or as subsequently agreed to between the parties;



	.2
	A mutually accepted, lump sum, properly itemized and supported by sufficient substantiating data to permit evaluation by Owner;



	.3
	Costs, fees and any other markups set forth in the Agreement; and



	.4
	If an increase or decrease cannot be agreed to as set forth in items .1 through .3 above and Owner issues a Work Change Directive, the
cost of the change of the Work shall be determined by the reasonable expense and savings in the performance of the Work resulting 



16







 


from
the change, including a reasonable overhead and profit, as may be set forth in the Agreement. If the net result of both additions and deletions to the Work is an increase in the Contract Price,
overhead and profit shall be calculated on the basis of the net increase to the Contract Price. If the net result of both additions and deletions to the Work is a decrease in the Contract Price, there
shall be no overhead or profit adjustment to the Contract Price. Design-Builder shall maintain a documented, itemized accounting evidencing the expenses and savings associated with such changes. 





9.4.2    If unit prices are set forth in the Contract Documents or are subsequently agreed to by the parties, but application of such unit
prices will cause substantial inequity to Owner or Design-Builder because of differences in the character or quantity of such unit items as originally contemplated, such unit prices shall be equitably
adjusted. 


9.4.3    If Owner and Design-Builder disagree upon whether Design-Builder is entitled to be paid for any services required by Owner, or if
there are any other disagreements over the scope of Work or proposed changes to the Work, Owner and Design-Builder shall resolve the disagreement pursuant to Article 10 hereof. As part of the
negotiation process, Design-Builder shall furnish Owner with a good faith estimate of the costs to perform the disputed services in accordance with Owner's interpretations. If the parties are unable
to agree and Owner expects Design-Builder to perform the services in
accordance with Owner's interpretations, Design-Builder shall proceed to perform the disputed services, conditioned upon Owner issuing a written order to Design-Builder (i) directing
Design-Builder to proceed and (ii) specifying Owner's interpretation of the services that are to be performed. If this occurs, Design-Builder shall be entitled to submit in its Applications for
Payment an amount equal to fifty percent (50%) of its reasonable estimated direct cost to perform the services, and Owner agrees to pay such amounts, with the express understanding that
(i) such payment by Owner does not prejudice Owner's right to argue that it has no responsibility to pay for such services and (ii) receipt of such payment by Design-Builder does not
prejudice Design-Builder's right to seek full payment of the disputed services if Owner's order is deemed to be a change to the Work. 


9.5   Emergencies  


9.5.1    In any emergency affecting the safety of persons and/or property, Design-Builder shall act, at its discretion, to prevent threatened
damage, injury or loss. Any change in the Contract Price and/or Contract Time(s) on account of emergency work shall be determined as provided in this Article 9. 


 
 

Article 10    
    
    Contract Adjustments and Disputes    
    



10.1   Requests for Contract Adjustments and Relief  


10.1.1    If either Design-Builder or Owner believes that it is entitled to relief against the other for any event arising out of or related
to the Work or Project, such party shall provide written notice to the other party of the basis for its claim for relief. Such notice shall, if possible, be made prior to incurring any cost or expense
and in accordance with any specific notice requirements contained in applicable sections of these General Conditions of Contract. In the absence of any specific notice requirement, written notice
shall be given within a reasonable time, not to exceed twenty-one (21) days, after the occurrence giving rise to the claim for relief or after the claiming party reasonably should
have recognized the event or condition giving rise to the request, whichever is later. Such notice shall include sufficient information to advise the other party of the circumstances giving rise to
the claim for relief, the specific contractual adjustment or relief requested and the basis of such request. 


17







 



10.2   Dispute Avoidance and Resolution  


10.2.1    The parties are fully committed to working with each other throughout the Project and agree to communicate regularly with each other
at all times so as to avoid or minimize disputes or disagreements. If disputes or disagreements do arise, Design-Builder and Owner each commit to resolving such disputes or disagreements in an
amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work. 


10.2.2    Design-Builder and Owner will first attempt to resolve disputes or disagreements at the field level through discussions between
Design-Builder's Representative and Owner's Representative. 


10.2.3    If a dispute or disagreement cannot be resolved through Design-Builder's Representative and Owner's Representative, Design-Builder's
Senior Representative and Owner's Senior Representative, upon the request of either party, shall meet as soon as conveniently possible, but in no case later than thirty (30) days after such a
request is made, to attempt to resolve such dispute or disagreement. Prior to any meetings between the Senior Representatives, the parties will exchange relevant information that will assist the
parties in resolving their dispute or disagreement. 


10.2.4    If after meeting the Senior Representatives determine that the dispute or disagreement cannot be resolved on terms satisfactory to
both parties, the parties shall submit the dispute or disagreement to non-binding mediation. The mediation shall be conducted by a mutually agreeable impartial mediator, or if the parties
cannot so agree, a mediator designated by the American Arbitration Association ("AAA") pursuant to its Construction Industry Mediation Rules. The mediation
will be governed by and conducted pursuant to a mediation agreement negotiated by the parties or, if the parties cannot so agree, by procedures established by the mediator. 


10.3   Arbitration  


10.3.1    Any claims, disputes or controversies between the parties arising out of or relating to the Agreement, or the breach thereof, which
have not been resolved in accordance with the procedures set forth in Section 10.2 above shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the
AAA then in effect, unless the parties mutually agree otherwise. 


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


10.3.3    Design-Builder and Owner expressly agree that any arbitration pursuant to this Section 10.3 may be joined or consolidated
with any arbitration involving any other person or entity (i) necessary to resolve the claim, dispute or controversy, or (ii) substantially involved in or affected by such claim, dispute
or controversy. Both Design-Builder and Owner will include appropriate provisions in all contracts they execute with other parties in connection with the Project to require such joinder or
consolidation. 


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


10.4   Duty to Continue Performance  


10.4.1    Unless provided to the contrary in the Contract Documents, Design-Builder shall continue to perform the Work and Owner shall
continue to satisfy its payment obligations to Design-Builder, pending the final resolution of any dispute or disagreement between Design-Builder and Owner. 


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10.5   CONSEQUENTIAL DAMAGES  


10.5.1    NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY (EXCEPT AS SET FORTH IN SECTION 10.5.2 BELOW), NEITHER DESIGN-BUILDER NOR OWNER
SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL LOSSES OR DAMAGES, WHETHER ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO
LOSSES OF USE, PROFITS, BUSINESS, REPUTATION OR FINANCING. 


10.5.2    The consequential damages limitation set forth in Section 10.5.1 above is not intended to affect the payment of liquidated
damages, if any, set forth in Article 5 of the Agreement, which both parties recognize has been established, in part, to reimburse Owner for some damages that might otherwise be deemed to be
consequential. 


 
 

Article 11    
    
    Stop Work and Termination for Cause    
    


11.1   Owner's Right to Stop Work  


11.1.1    Owner may, without cause and for its convenience, order Design-Builder in writing to stop and suspend the Work. Such suspension
shall not exceed sixty (60) consecutive days or aggregate more than ninety (90) days during the duration of the Project. 



11.1.2    Design-Builder is entitled to seek an adjustment of the Contract Price and/or Contract Time(s) if its cost or time to perform the
Work has been adversely impacted by any suspension of stoppage of work by Owner. 


11.2   Owner's Right to Perform and Terminate for Cause  


11.2.1    If Design-Builder persistently fails to (i) provide a sufficient number of skilled workers, (ii) supply the materials
required by the Contract Documents, (iii) comply with applicable Legal Requirements, (iv) timely pay, without cause, Design Consultants or Subcontractors, (v) prosecute the Work
with promptness and diligence to ensure that the Work is completed by the Contract Time(s), as such times may be adjusted, or (vi) perform material obligations under the Contract Documents,
then Owner, in addition to any other rights and remedies provided in the Contract Documents or by law, shall have the rights set forth in Sections 11.2.2 and 11.2.3 below. 


11.2.2    Upon the occurrence of an event set forth in Section 11.2.1 above, Owner may provide written notice to Design-Builder that it
intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Design-Builder's receipt of such notice. If Design-Builder fails to
cure, or reasonably commence to cure, such problem, then Owner may give a second written notice to Design-Builder of its intent to terminate within an additional seven (7) day period. If
Design-Builder, within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Owner may declare the Agreement terminated for default by providing
written notice to Design-Builder of such declaration. 


11.2.3    Upon declaring the Agreement terminated pursuant to Section 11.2.2 above, Owner may enter upon the premises and take
possession, for the purpose of completing the Work, of all materials, equipment, scaffolds, tools, appliances and other items thereon, which have been purchased or provided for the performance of the
Work, all of which Design-Builder hereby transfers, assigns and sets over to Owner for such purpose, and to employ any person or persons to complete the Work and provide all of the required labor,
services, materials, equipment and other items. In the event of such termination, Design-Builder shall not be entitled to receive any further payments under the Contract Documents 


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until
the Work shall be finally completed in accordance with the Contract Documents. At such time, if the unpaid balance of the Contract Price exceeds the cost and expense incurred by Owner in
completing the Work, such excess shall be paid by Owner to Design-Builder. Notwithstanding the preceding sentence, if the Agreement establishes a Guaranteed Maximum Price, Design-Builder will only be
entitled to be paid for Work performed prior to its default. If Owner's cost and expense of completing the Work exceeds the unpaid balance of the Contract Price, then Design-Builder shall be obligated
to pay the difference to Owner. Such costs and expense shall include not only the cost of completing the Work, but also losses, damages, costs and expense, including attorneys' fees and expenses,
incurred by Owner in connection with the reprocurement and defense of claims arising from Design-Builder's default, subject to the waiver of consequential damages set forth in Section 10.5
hereof. 


11.2.4    If Owner improperly terminates the Agreement for cause, the termination for cause will be converted to a termination for convenience
in accordance with the provisions of Article 8 of the Agreement. 


11.3   Design-Builder's Right to Stop Work  


11.3.1    Design-Builder may, in addition to any other rights afforded under the Contract Documents or at law, stop work for the following
reasons: 


        .1    Owner's failure to provide financial assurances as required under Section 3.3 hereof; or 



        .2    Owner's failure to pay amounts properly due under Design-Builder's Application for Payment. 


11.3.2    Should any of the events set forth in Section 11.3.1 above occur, Design-Builder has the right to provide Owner with written
notice that Design-Builder will stop work unless said event is cured within seven (7) days from Owner's receipt of Design-Builder's notice. If Owner does not cure the problem within such seven
(7) day period, Design-Builder may stop work. In such case, Design-Builder shall be entitled to make a claim for adjustment to the Contract Price and Contract Time(s) to the extent it has been
adversely impacted by such stoppage. 


11.4   Design-Builder's Right to Terminate for Cause  


11.4.1    Design-Builder, in addition to any other rights and remedies provided in the Contract Documents or by law, may terminate the
Agreement for cause for the following reasons: 



	.1
	The Work has been stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the
Project, because of court order, any government authority having jurisdiction over the Work, or orders by Owner under Section 11.1.1 hereof, provided that such stoppages are not due to the acts
or omissions of Design-Builder or anyone for whose acts Design-Builder may be responsible.



	.2
	Owner's failure to provide Design-Builder with any information, permits or approvals that are Owner's responsibility under the Contract
Documents which result in the Work being stopped for sixty (60) consecutive days, or more than ninety (90) days during the duration of the Project, even though Owner has not ordered
Design-Builder in writing to stop and suspend the Work pursuant to Section 11.1.1 hereof.



	.3
	Owner's failure to cure the problems set forth in Section 11.3.1 above after Design-Builder has stopped the Work. 






11.4.2    Upon the occurrence of an event set forth in Section 11.4.1 above, Design-Builder may provide written notice to Owner that it
intends to terminate the Agreement unless the problem cited is cured, or commenced to be cured, within seven (7) days of Owner's receipt of such notice. If Owner fails to 


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cure,
or reasonably commence to cure, such problem, then Design-Builder may give a second written notice to Owner of its intent to terminate within an additional seven (7) day period. If Owner,
within such second seven (7) day period, fails to cure, or reasonably commence to cure, such problem, then Design-Builder may declare the Agreement terminated for default by providing written
notice to Owner of such declaration. In such case, Design-Builder shall be entitled to recover in the same manner as if Owner had terminated the Agreement for its convenience under Article 8 of
the Agreement. 


11.5   Bankruptcy of Owner or Design-Builder  


11.5.1    If either Owner or Design-Builder institutes or has instituted against it a case under the United States Bankruptcy Code (such party
being referred to as the "Bankrupt Party"), such event may impair or frustrate the Bankrupt Party's ability to perform its obligations under the Contract Documents. Accordingly, should such event
occur: 



	.1
	The Bankrupt Party, its trustee or other successor, shall furnish, upon request of the non-Bankrupt Party, adequate
assurance of the ability of the Bankrupt Party to perform all future material obligations under the Contract Documents, which assurances shall be provided within ten (10) days after receiving
notice of the request; and



	.2
	The Bankrupt Party shall file an appropriate action within the bankruptcy court to seek assumption or rejection of the Agreement within
sixty (60) days of the institution of the bankruptcy filing and shall diligently prosecute such action. 




If
the Bankrupt Party fails to comply with its foregoing obligations, the non-Bankrupt Party shall be entitled to request the bankruptcy court to reject the Agreement, declare the
Agreement terminated and pursue any other recourse available to the non-Bankrupt Party under this Article 11. 


11.5.2    The rights and remedies under Section 11.5.1 above shall not be deemed to limit the ability of the non-Bankrupt
Party to seek any other rights and remedies provided by the Contract Documents or by law, including its ability to seek relief from any automatic stays under the United States Bankruptcy Code or the
right of Design-Builder to stop Work under any applicable provision of these General Conditions of Contract. 


 
 

Article 12    
    
    Miscellaneous    
    


12.1   Assignment  


12.1.1    Neither Design-Builder nor Owner shall, without the written consent of the other assign, transfer or sublet any portion or part of
the Work or the obligations required by the Contract Documents. 



12.2   Successorship  


12.2.1    Design-Builder and Owner intend that the provisions of the Contract Documents are binding upon the parties, their employees, agents,
heirs, successors and assigns. 


12.3   Governing Law  


12.3.1    The Agreement and all Contract Documents shall be governed by the laws of the place of the Project, without giving effect to its
conflict of law principles. 


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12.4   Severability  


12.4.1    If any provision or any part of a provision of the Contract Documents shall be finally determined to be superseded, invalid,
illegal, or otherwise unenforceable pursuant to any applicable Legal Requirements, such determination shall not impair or otherwise affect the validity, legality, or enforceability of the remaining
provision or parts of the provision of the Contract Documents, which shall remain in full force and effect as if the unenforceable provision or part were deleted. 


12.5   No Waiver  


12.5.1    The failure of either Design-Builder or Owner to insist, in any one or more instances, on the performance of any of the obligations
required by the other under the Contract Documents shall not be construed as a waiver or relinquishment of such obligation or right with respect to future performance. 


12.6   Headings  


12.6.1    The headings used in these General Conditions of Contract, or any other Contract Document, are for ease of reference only and shall
not in any way be construed to limit or alter the meaning of any provision. 



12.7   Notice  


12.7.1    Whenever the Contract Documents require that notice be provided to the other party, notice will be deemed to have been validly given
(i) if delivered in person to the individual intended to receive such notice, (ii) four (4) days after being sent by registered or certified mail, postage prepaid to the address
indicated in the Agreement or (iii) if transmitted by facsimile, by the time stated in a machine generated confirmation that notice was received at the facsimile number of the intended
recipient. 


12.8   Amendments  


12.8.1    The Contract Documents may not be changed, altered, or amended in any way except in writing signed by a duly authorized
representative of each party. 


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QuickLinks


Article 1 Scope of Work

Article 2 Contract Documents

Article 3 Interpretation and Intent

Article 4 Ownership of Work Product

Article 5 Contract Time

Article 6 Contract Price

Article 7 Procedure for Payment


Article 8 Termination for Convenience

Article 9 Representatives of the Parties

Article 10 Bonds and Insurance

Article 11 Other Provisions



Design Build Contract Aventine Renewable Energy, Inc. September 9, 2005



LICENSE AGREEMENT


Design Build Contract Aventine Renewable Energy, Inc. September 9, 2005

START-UP SERVICES TO BE PROVIDED TO OWNER


Design Build Contract Aventine Renewable Energy, Inc. September 9, 2005



Design Build Contract Aventine Renewable Energy, Inc. September 9, 2005



Design Build Contract Aventine Renewable Energy, Inc. September 9, 2005


Table of Contents


Article 1 General

Article 2 Design-Builder's Services and Responsibilities

Article 3 Owner's Services and Responsibilities

Article 4 Hazardous Conditions and Differing Site Conditions


Article 5 Insurance and Bonds

Article 6 Payment

Article 7 Indemnification

Article 8 Time


Article 9 Changes to the Contract Price and Time

Article 10 Contract Adjustments and Disputes

Article 11 Stop Work and Termination for Cause

Article 12 Miscellaneous