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EXHIBIT 10.1


                                                               EXECUTION VERSION


This AMENDED AND RESTATED PHASE 1 DESIGN-BUILD AGREEMENT is made the 2nd day of
November in the year 2005 (as amended, amended and restated, supplemented or
otherwise modified from time to time, this "Agreement"), is entered into by and
between PACIFIC ETHANOL MADERA LLC, a limited liability company organized under
the laws of the State of Delaware and having an address at 31470 Avenue 12,
Madera, CA 93638 (the "OWNER") and W.M. LYLES CO., a corporation organized under
the laws of the State of California and having an address at P.O. Box 4377,
Fresno, CA, 93744-4377 (the "DESIGN-BUILDER") and is for services in connection
with the construction of the ethanol production facility at the Madera,
California site. Notice to the parties shall be given at the above addresses.

ARTICLE 1 -RECITALS; AGREEMENT

          WHEREAS, the Owner and the Design-Builder are parties to that certain
Design-Build Agreement, dated July 7, 2003 (as amended, supplemented or
otherwise modified from time to time the "ORIGINAL AGREEMENT"), and

          WHEREAS, the Owner and the Design-Builder desire to make certain
changes to the terms of the Original Agreement, including modifying the scope of
services to be provided by the Design-Builder.

          NOW, THEREFORE, in consideration of the foregoing premises, the mutual
promises and covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Owner and the Design-Builder hereby agree as follows:

ARTICLE 2 - GENERAL PROVISIONS

2.1 TEAM RELATIONSHIP The Owner and the Design-Builder agree to proceed with the
Project on the basis of trust, good faith and fair dealing and shall take all
actions reasonably necessary to perform this Agreement in an economical and
timely manner, including consideration of design modifications and alternative
materials or equipment that will permit the Work to be constructed within the
Guaranteed Maximum Price (GMP) and by the Phase 1 Completion Date as established
herein. The Design-Builder agrees to furnish, as permitted by the law of the
state where the project is located, the services as set forth below.

2.1.1 The Design-Builder represents that it is an independent contractor and
that it is familiar with the type of work it is undertaking.

2.1.2 Neither the Design-Builder nor any of its agents or employees shall act on
behalf of or in the name of the Owner unless authorized in writing by the
Owner's Representative.

2.2 ENGINEER Engineering services shall be procured from licensed, independent
design professionals retained by the Design-Builder with consultation from Owner
as permitted by the law of the state where the Project is located. The standard
of care for engineering services performed under this Agreement shall be the
care and skill ordinarily used by members of the engineering professions
practicing under similar conditions at the same time and locality. The entity
providing engineering services shall be referred to as the Engineer and provide
separate and exclusive Professional Liability Insurance as required. The
engineering services shall be procured pursuant to a separate agreement between
the Design-Builder and the Engineer.

2.2.1 The Engineer for the Project shall be DELTA-T CORPORATION.

2.3 EXTENT OF AGREEMENT This Agreement is solely for the benefit of the parties,
represents the entire and integrated agreement between the parties, and
supersedes all prior negotiations, representations or agreements, either written
or oral. The Owner and the Design-Builder agree to look solely to each other
with respect to the performance of the Agreement. The Agreement and each and
every provision are for the exclusive benefit of the Owner and the
Design-Builder and not for the benefit of any third party or any third party
beneficiary, except to the extent expressly provided in the Agreement.


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2.4      DEFINITIONS

         .1 APPLICABLE PERMITS shall mean any and all permits, clearances,
         licenses, authorizations, consents, filings, exemptions or approvals
         from or required by any government authority that are necessary for the
         performance of the Work.

         .2 BUSINESS DAY shall mean any day other than a Saturday, Sunday or a
         day on which commercial banks in Fresno, California or New York, New
         York are required or authorized to be closed.

         .3 THE CONTRACT DOCUMENTS consist of:

                  a. Change Orders and written amendments to this Agreement
                  including exhibits and appendices, signed by both the Owner
                  and the Design-Builder;

                  b. this Agreement except for the existing Contract Documents
                  set forth in item e. below;

                  c. the most current documents approved by the Owner pursuant
                  to Paragraph 3.1;

                  d. the information provided by the Owner pursuant to Clause
                  4.1.2.1;

                  e. the Contract Documents in existence at the time of
                  execution of this Agreement which are set forth in Article 15.
                  Additional Exhibits may be added to this document with proper
                  signature of the Owner and Design-Builder;

                  f. the Owner's Program provided pursuant to Subparagraph 4.1.

         In case of any inconsistency, conflict or ambiguity among the Contract
         Documents, the documents shall govern in the order in which they are
         listed above.

         .4 The term day shall mean calendar day, unless otherwise specifically
         defined.

         .5 DEFECTIVE WORK is any portion of the Work not in conformance with
         the Contract Documents as more fully described in Paragraph 3.8.

         .6 DESIGN-BUILDER PERMITS shall mean the Applicable Permits listed on
         Exhibit J.

         .7 DESIGN-BUILDER'S FEE means the compensation paid to the
         Design-Builder for salaries and other mandatory or customary
         compensation of the Design-Builder's employees at its principle and
         branch offices except employees listed in Subparagraph 8.2.2, general
         and administrative expenses of the Design-Builder's principal and
         branch offices other than the field office, and the Design-Builder's
         capital expenses, including interest on the Design-Builder's capital
         employed for the Work, and profit.

         .8 COMPLETION occurs on the date when the Design-Builder's obligations
         under this Agreement are complete and accepted by the Owner and final
         payment becomes due and payable. COMPLETION shall indicate to the Owner
         that Contract Services have been completed by the Design-Builder and a
         Certificate of Completion and Lien release in the form of Exhibit L-1
         have been provided to the Owner by the Design-Builder.

         .9 CONTRACT SERVICES shall mean the services provided by the
         Design-Builder as set forth on Exhibit D.


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         .10 The term FAST-TRACK means accelerated scheduling which involves
         commencing construction prior to the completion of drawings and
         specifications and then using means such as bid packages and efficient
         coordination to compress the overall schedule.

         . 11 FINANCING PARTIES shall mean the lenders, security holders,
         investors, export credit agencies, multilateral institutions, equity
         providers and others providing financing or refinancing to or on behalf
         of the Owner or an affiliate thereof, for the development,
         construction, ownership, operation and maintenance of the Project or
         any portion thereof, or any trustee or agent acting on behalf of any of
         the foregoing.

         . 12 HAZARDOUS MATERIALS shall mean any hazardous materials, hazardous
         waste, hazardous constituents, hazardous or toxic or radioactive
         substances or petroleum products (including crude oil or any fraction
         thereof), defined or regulated as such under any applicable laws.

         .13 LIEN shall mean any lien, security interest, mortgage,
         hypothecation, encumbrance or other restriction on title or property
         interest.

         .14 A MATERIAL SUPPLIER is a party or entity retained by the
         Design-Builder to provide material and equipment for the Work.

         . 15 NOTICE TO PROCEED shall be the unconditional contractual start of
         the Project as indicated in writing by the Owner that shall authorize
         the Design-Builder to proceed with Contract Services.

         .16 OTHERS means other contractors and all persons at the Worksite who
         are not employed by the Design-Builder, its Subcontractors or Material
         Suppliers.

         .17 The OWNER is the person or entity identified as such in this
         Agreement and includes the Owner's Representative.

         .18 OWNER-CAUSED DELAY shall mean a material delay in the
         Design-Builder's performance of any construction, design or equipment
         milestone which is demonstrably caused solely by the Owner's failure to
         perform any covenant of the Owner hereunder (other than by exercise of
         rights under this Agreement, including the exercise by the Owner of the
         right to have defective or nonconforming Work corrected or
         re-executed). The Design-Builder expressly acknowledges and agrees that
         any delay that is due in part to the Design-Builder's action or
         inaction is not an the Owner-Caused Delay.

         .19 OWNER PERMITS shall mean the Applicable Permits listed on Exhibit
         K.

         .20 The OWNER'S PROGRAM is an initial description of the Owners
         objectives, that may include budget and time criteria, space
         requirements and relationships, flexibility and expandability
         requirements, special equipment and systems, and site requirements
         completed by the Design-Builder and Engineer as described in Exhibit C;
         Project Development Agreement.

         .21 PHASE 1 COMPLETION DATE shall be November 20, 2005, as such date
         may be modified pursuant to the terms of this Agreement.

         .22 PHASE 2 DESIGN-BUILD AGREEMENT shall mean that certain Phase 2
         Design-Build Agreement of even date herewith by and between the Owner
         and the Design Builder (as such agreement may be amended, supplemented
         or otherwise modified from time to time), a copy of which is attached
         hereto as Exhibit E.

         .23 PRE-EXISTING HAZARDOUS MATERIALS shall mean Hazardous Materials
         that existed on or in the Worksite prior to initial mobilization by the
         Design-Builder.


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         .24 THE PROJECT is the building, facility and/or other improvements for
         which the Design-Builder is to perform the Work under this Agreement.
         It may also include improvements to be undertaken by the Owner or
         Others.

         .25 A SUBCONTRACTOR is (a) a party or entity retained by the
         Design-Builder as an independent contractor to provide the on-site
         labor, materials, equipment and/or services necessary to complete a
         specific portion of the Work or (b) for the purposes of this definition
         only, any licensed engineer providing services in connection with the
         Work. The term Subcontractor does not include any separate contractor
         employed by the Owner or any separate contractor's subcontractors.

         .26 A SUB-SUBCONTRACTOR is a party pr entity who has an agreement with
         a Subcontractor to perform any portion of the Subcontractor's work.

         .27 THE WORK shall mean the Design Development and Contract Services
         procured or furnished in accordance with Paragraph 3.1, the GMP
         Proposal previously accepted by Owner in accordance with Paragraph 3.2
         Additional Services that may be provided in accordance with Paragraph
         3.10, and other services which are necessary to complete the Project in
         accordance with and reasonably inferable from the Contract Documents.

         .28 WORKSITE means the geographical area at the location mentioned in
         first paragraph of this Agreement where the Work is to be performed.

ARTICLE 3 -DESIGN-BUILDER'S RESPONSIBILITIES

The Design-Builder shall be responsible for procuring the design and for
furnishing the construction of the Work consistent with the Owner's Program; as
such the Owner may modify the Program during the course of the work up to
twenty-five (25)-percent design complete. The Design-Builder shall exercise
reasonable skill and judgment in the performance of its services consistent with
the team relationship described in Paragraph 2.1, but does not warrant nor
guarantee schedules and estimates other than those that are part of the GMP
Proposal.

3.1      CONTRACT SERVICES

3.1.1 PRELIMINARY EVALUATION - OWNER'S PROGRAM The Design-Builder shall review
the Owner's Program to ascertain the requirements of the Project and shall
verify such requirements with the Owner. The Design-Builder's review shall also
provide to the Owner a preliminary evaluation of the site with regard to access,
traffic, drainage, parking, building placement and other considerations
affecting the plant, the environment and energy use, as well as information
regarding applicable governmental laws, regulations and requirements based on
the requirements of Exhibit C. The Design-Builder shall also propose, as
necessary, alternative architectural, civil, structural, mechanical, electrical
and other systems for review by the Owner, to determine the most desirable
approach on the basis of cost, technology, quality and speed of delivery. The
Design-Builder will also review existing test reports but will not undertake any
independent testing nor be required to furnish types of information derived from
such testing in its Preliminary Evaluation. Based upon its review and
verification of the Owner's Program and other relevant information the
Design-Builder shall provide a Preliminary Evaluation of the Project's
feasibility for the Owner's acceptance. The Design-Builder's Preliminary
Evaluation shall specifically identify any deviations from the Owner's Program.

3.1.2 PRELIMINARY SCHEDULE - OWNER'S PROGRAM The Design-Builder shall prepare a
preliminary schedule of the Work as established by the information provide by
the Engineer in Exhibit C. the Owner shall provide written approval of milestone
dates established in the preliminary schedule of the Work. The schedule shall
show the activities of the Owner, the Engineer and the Design-Builder necessary
to meet the Owner's completion requirements. The schedule shall be updated
periodically with the level of detail for each schedule update reflecting the
information then available. If an update
indicates that a previously approved schedule will not be met, the
Design-Builder shall recommend corrective action to the Owner in writing.


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3.1.3 PRELIMINARY ESTIMATE - OWNER'S PROGRAM When sufficient Project information
has been identified, the Design-Builder shall prepare for the Owner's acceptance
a preliminary estimate established by the information provided by the Engineer
in Exhibit C utilizing typical W.M. Lyles Co. estimating techniques. The
estimate shall be updated periodically with the level of detail for each
estimate update reflecting the information then available. If the preliminary
estimate or any update exceeds the Owner's budget, the Design-Builder shall make
recommendations to the Owner.

3.1.4 DESIGN DEVELOPMENT DOCUMENTS - OWNER'S PROGRAM The Design-Builder shall
submit for the Owner's written approval the Design Development Documents as
submitted by the Engineer and required in Exhibit C signed by the Design-Builder
and Engineer based on the approved Schematic Design Documents. The Design
Development Documents shall further define the Project including drawings and
outline specifications fixing and describing the Project size and character as
to site utilization, and other appropriate elements incorporating the
structural, architectural, mechanical and electrical systems. One set of these
documents shall be furnished to the Owner. When the Design-Builder submits the
Design Development Documents, the Design-Builder shall identify in writing all
material changes and deviations that have taken place from the Schematic Design
Documents. The Design-Builder shall update the schedule and estimate based on
the Design Development Documents.

3.1.5 TECHNOLOGY TRANSFER AGREEMENT AND FUTURE DESIGN SERVICES AGREEMENT Upon
execution of Exhibit C, the Owner and Engineer shall enter into good-faith
negotiations for the Technology Transfer Agreement and the Design-Builder and
Engineer shall enter into good-faith negotiations for the Design Services
Agreement. Upon confirmation that the Owner has obtained the necessary Project
Financing, the Technology Transfer Agreement and Design Services Agreement shall
be fully executed so as to not delay the project.

3.1.6 CONSTRUCTION DOCUMENTS The Design-Builder shall submit for the Owner's
written approval Construction Documents based on the approved Design Development
Documents. The Construction Documents shall set forth in detail the requirements
for construction of the Work, and shall consist of drawings and specifications
based upon codes, laws and regulations enacted at the time of their preparation.
When the Design-Builder submits the Construction Documents, the Design-Builder
shall identify in writing all material changes and deviations that have taken
place from the Design Development Documents. Construction shall be in accordance
with these approved Construction Documents. One set of these documents shall be
furnished to the Owner prior to commencement of construction.

3.1.7 OWNERSHIP OF DOCUMENTS Upon the making of payment pursuant to Paragraph
10.5, the Owner shall receive ownership of the property rights, except for
copyrights and other limited license information provided and required by the
Engineer, of all documents, drawings, specifications, electronic data and
information prepared, provided or procured by the Design-Builder, its Engineer,
Subcontractors and consultants and distributed to the Owner for this Project.
("DESIGN-BUILD DOCUMENTS")

         .1 If this Agreement is terminated pursuant to Paragraph 12.1, the
         Owner shall receive ownership of the property rights, except for
         copyrights and other limited license information provide by the
         Engineer, of the Design-Build Documents upon payment for all Work
         performed in accordance with this Agreement, at which time the Owner
         shall have the right to use, reproduce and make derivative works from
         the Design-Build Documents to complete the Work.

         .2 If this Agreement is terminated pursuant to Paragraph 12.2, the
         Owner shall receive ownership of the property rights, except for
         copyrights and other limited license information provide by the
         Engineer, of the Design-Build Documents upon payment of all sums
         provided in Paragraph 12.2, at which time the Owner shall have the
         right to use, reproduce and make derivative works from the Design-Build
         Documents to complete the Work.


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         .3 The Owner may use, reproduce and make derivative works from the
         Design-Build Documents for subsequent renovation and remodeling of the
         Work, but shall not use, reproduce or make derivative works from the
         Design-Build Documents for other projects without the written
         authorization of the Design-Builder and Engineer, who shall not
         unreasonably withhold consent.

         .4 The Owner's use of the Design-Build Documents without the
         Design-Builder's involvement or on other projects is at the Owner's
         sole risk, except for the Design-Builder's indemnification obligation
         pursuant to Paragraph 3.7, and the Owner shall defend, indemnify and
         hold harmless the Design-Builder, its Engineer, Subcontractors and
         consultants, and the agents, officers, directors and employees of each
         of them from and against any and all claims, damages, losses, costs and
         expenses, including but not limited to attorney's fees, costs and
         expenses incurred in connection with any dispute resolution process,
         arising out of or resulting from the Owner's use of the Design-Build
         Documents.

         .5 The Design-Builder shall obtain from its Engineer, Subcontractors
         and consultants property rights and rights of use that correspond to
         the rights given by the Design-Builder to the Owner in this Agreement.

3.2      GUARANTEED MAXIMUM PRICE (GMP)

         3.2.1 GMP PROPOSAL The Owner and the Design-Builder agree that the
         Design-Builder's GMP Proposal previously submitted to the Owner has
         been accepted by the Owner. The GMP is subject to modification as
         provided in Article 9 and is based on the scope of services listed in
         Exhibit D.

         3.2.1.1 PURSUANT TO THE PAYMENT TERMS AND CONDITIONS CONTAINED HEREIN,
         AND SUBJECT TO MODIFICATION AS PROVIDED HEREIN, THE OWNER SHALL PAY FOR
         ALL COSTS ASSOCIATED WITH THE ABOVE SCOPE OF WORK FOR THE GUARANTEED
         MAXIMUM PRICE (GMP) OF $15,000,000.

         3.2.1.2 The Design-Builder has provided in the GMP for further
         development of the Design-Build Documents consistent with the Owner's
         Program. Such further development does not include changes in scope,
         systems, kinds and quality of materials, finishes or equipment, all of
         which if required, shall be incorporated by Change Order.

3.2.2    BASIS OF GUARANTEED MAXIMUM PRICE A written statement of the scope of
         work and the basis of the GMP Proposal are set forth in Exhibit D,
         which includes:

         .1 the drawings and specifications prepared prior to April 15, 2005,
         including all addenda, which were used in preparation of the GMP
         Proposal;

         .2 a list of the assumptions and clarifications made by the
         Design-Builder in the preparation of the GMP Proposal to supplement the
         information contained in the drawings and specifications; and

         .3 a schedule of applicable alternate prices, unit prices and time and
         material prices if necessary.

3.2.3    WORK. In order to complete the Work, the Design-Builder shall:

         .1 provide all necessary construction supervision, construction
         equipment, labor, materials, tools, and subcontracted items;

         .2 give all notices and comply with all laws and ordinances legally
         enacted at the date of execution of the Agreement which govern the
         proper performance of the Work;


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         .3 keep such full and detailed accounts as are necessary for proper
         financial management under this Agreement and (a) the Owner shall be
         afforded access to all of the Design-Builder's records, books,
         correspondence, instructions, drawings, receipts, vouchers, memoranda
         and similar data relating to this Agreement and (b) the Design-Builder
         shall preserve all such records for a period of three years after the
         final payment or longer where required by law;

         .4 develop a system of cost reporting (such reporting to be included in
         the progress reports delivered to the Owner pursuant to Section 10.1.8)
         for the Work, including regular monitoring of actual costs for
         activities in progress and estimates for uncompleted tasks and proposed
         changes in the Work; and

         .5 regularly remove debris and waste materials at the Worksite
         resulting from the Work. Prior to discontinuing Work in an area, the
         Design-Builder shall clean the area and remove all rubbish and its
         construction equipment, tools, machinery, waste and surplus materials.
         The Design-Builder shall minimize and confine dust and debris resulting
         from construction activities. At the completion of the Work, the
         Design-Builder shall remove from the Worksite all construction
         equipment, tools, surplus materials, waste materials and debris.

3.3 SCHEDULE OF THE WORK Within fifteen (15) calendar days of the date of this
Agreement, the Design-Builder shall prepare and submit a final Schedule of Work
for the Owner's acceptance and written approval as to milestone dates. This
schedule shall indicate the dates for the start and completion of the various
stages of the Work, including the dates when information and approvals are
required from the Owner. In connection with the Design-Builder's delivery of the
monthly progress reports required to be delivered to the Owner pursuant to
Section 10.1.8, the Design-Builder shall provide the Owner with any revisions to
the Schedule of Work that provide for the orderly, practicable and expeditious
completion of the Work in accordance with the requirements of the Contract
Documents. Each revised Schedule of Work shall be presented in such reasonable
detail as the Owner and its independent engineer may require and shall address
all material elements of the Work. The Design-Builder shall consult with the
Owner in connection with each revision to the Schedule of Work provided under
this paragraph. Notwithstanding anything contained herein to the contrary, in
the absence of a Change Order, no revision to the Schedule of Work shall in any
way amend, alter or otherwise change the Phase 1 Completion Date.

3.4 SAFETY OF PERSONS AND PROPERTY

3.4.1 SAFETY PRECAUTIONS AND PROGRAMS The Design-Builder shall have overall
responsibility for safety precautions and programs in the performance of the
Work. While the provisions of this Paragraph establish the responsibility for
safety between the Owner and the Design-Builder, they do not relieve
Subcontractors of their responsibility for the safety of persons or property in
the performance of their work, nor for compliance with the provisions of
applicable laws and regulations.

3.4.2 The Design-Builder shall seek to avoid injury, loss or damage to persons
or property by taking reasonable steps to protect:

         .1 its employees and other persons at the Worksite;

         .2 materials, supplies and equipment stored at the Worksite for use in
         performance of the Work; and

         .3 the Project and all property located at the Worksite and adjacent to
         work areas, whether or not said property or structures are part of the
         Project or involved in the Work.

3.4.3    DESIGN-BUILDER'S SAFETY PROGRAM The Design-Builder's On-Site Safety
         Program shall include all OSHA required elements and the following
         components:

         .1 Established and administrated on-site Drug Prevention and Alcohol
         Testing Program.


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         .2 Established and administrated on-site Safety Orientation Training
         and Education Program.

3.4.4 DESIGN-BUILDER'S SAFETY REPRESENTATIVE The Design-Builder shall designate
an individual at the Worksite in the employ of the Design-Builder who shall act
as the Design-Builder's designated safety representative with a duty to prevent
accidents. The Design-Builder will report immediately in writing all accidents
and injuries occurring at the Worksite to the Owner. If the Design-Builder is
required to file an accident report with a public authority, the Design-Builder
shall furnish a copy of the report to the Owner.

3.4.5 The Design-Builder shall provide the Owner with copies of all notices
required of the Design-Builder by law or regulation. The Design-Builder's safety
program shall comply with the requirements of governmental and
quasi-governmental authorities having jurisdiction over the Work.

3.4.6 Damage or loss not insured under property insurance which may arise from
the performance of the Work, to the extent of the negligence attributed to such
acts or omissions of the Design-Builder, or anyone for whose acts the
Design-Builder may be liable, shall be promptly remedied by the Design-Builder.
Damage or loss attributable to the acts or omissions of the Owner or Others and
not to the Design-Builder shall be promptly remedied by the Owner.

3.4.7 If the Owner or Owner's representative deems any part of the Work or
Worksite unsafe, the Owner, without assuming responsibility for the
Design-Builder's safety program, may require the Design-Builder to stop
performance of the Work or take corrective measures satisfactory to the Owner,
or both. The Design-Builder agrees to make no claim for damages, for an increase
in the GMP, compensation for Contract Services, the Design-Builder's Fee and/or
the Phase 1 Completion Date based on the Design-Builder's compliance with the
Owner's reasonable request.

3.5      HAZARDOUS MATERIALS

3.5.1 The Design-Builder shall not be obligated to commence or continue work
until all Hazardous Material discovered at the Worksite has been removed,
rendered or determined to be harmless by the Owner as certified by an
independent testing laboratory approved by the appropriate government agency.

3.5.2 If after the commencement of the Work, Hazardous Material is discovered at
the Project, the Design-Builder shall be entitled to immediately stop Work in
the affected area. The Design-Builder shall report the condition to the Owner
and, if required, the government agency with jurisdiction. The Design-Builder
reserves the right to remove any identified Hazardous Material under a separate
Time and Material Contract.

3.5.3 The Design-Builder shall not be required to perform any Work relating to
or in the area of Hazardous Material without written mutual agreement.

3.5,4 The Owner shall be responsible for retaining an independent testing
laboratory to determine the nature of the material encountered and weather it is
a Hazardous Material requiring corrective measures and/or remedial action. Such
measures shall be the sole responsibility of the Owner, and shall be performed
in a manner minimizing any adverse effects upon the Work of the Design-Builder.
The Design-Builder shall resume Work in the area affected by any Hazardous
Material only upon written agreement between the parties (which agreement shall
not be unreasonably withheld) after the Hazardous Material has been removed or
rendered harmless and only after approval, if necessary, of the governmental
agency or agencies with jurisdiction.

3.5.5 If the Design-Builder incurs additional costs and/or is delayed due to the
presence or remediation of Hazardous Material, the Design-Builder shall be
entitled to an equitable adjustment in the GMP, compensation for Contract
Services, the Design-Builder's Fee and/or the Phase 1 Completion Date.


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3.5.6 Provided the Design-Builder, its Subcontractors, Material Suppliers and
Sub-subcontractors, and the agents, officers, directors and employees of each of
them, have not, acting under their own authority, knowingly entered upon any
portion of the Work containing Hazardous Materials, and to the extent not caused
by the negligent acts or omissions of the Design-Builder, its Subcontractors,
Material Suppliers and Sub-subcontractors, and the agents, officers, directors
and employees of each of them, the Owner shall defend, indemnify and hold
harmless the Design-Builder, its Subcontractors and Sub-subcontractors, and the
agents, officers, directors and employees of each of them, from and against any
and all direct claims, damages, losses, costs and expenses, including but not
limited to attorney's fees, costs and expenses incurred in connection with any
dispute resolution process, arising out of or relating to the performance of the
Work in any area affected by Hazardous Material. To the fullest extent permitted
by law, such indemnification shall apply regardless of the fault, negligence,
breach of warranty or contract, or strict liability of the Owner.

3.5.7 Material Safety Data (MSD) sheets as required by law and pertaining to
materials or substances used or consumed in the performance of the Work, whether
obtained by the Design-Builder, Subcontractors, the Owner or Others, shall be
maintained at the Project by the Design-Builder and made available to the Owner
and Subcontractors.

3.5.8 During the Design-Builder's performance of the Work, the Design-Builder
shall be responsible for the proper handling of all materials brought to the
Worksite by the Design-Builder. Upon the issuance of the Certificate of
Completion, the Owner shall be responsible under this Paragraph for materials
and substances brought to the site by the Design-Builder if such materials or
substances are required by the Contract Documents.

3.5.9 The terms of this Paragraph 3.5 shall survive the completion of the Work
under this Agreement and/or any termination of this Agreement.

3.6 ROYALTIES, PATENTS AND COPYRIGHTS The Design-Builder shall pay all royalties
and license fees which may be due on the inclusion of any patented or
copyrighted materials, methods or systems selected by the Design-Builder and
incorporated in the Work. The Design-Builder shall defend, indemnify and hold
the Owner harmless from all suits or claims for infringement of any patent
rights, filed patent applications or copyrights arising out of such selection.
The Owner agrees to defend, indemnify and hold the Design-Builder and Engineer
harmless from all suits or claims of infringement of any patent rights, filed
patent applications or copyrights arising out of any patented or copyrighted
materials, methods or systems specified by the Owner (excluding materials,
methods or systems of Engineer). For purposes of this Section 3.6 and the
indemnification obligations of the Design-Builder to the Owner contained herein,
"materials, methods or systems selected by the Design-Builder" shall be deemed
to include the materials, methods or systems of Engineer provided to the
Design-Builder for inclusion in the Project.

3.7      WARRANTIES AND COMPLETION

3.7.1 The Design-Builder warrants that all materials and equipment furnished
under this Agreement will be new, of good quality, in conformance with the
Contract Documents, and free from defective workmanship and materials.
Warranties shall commence on the Phase 1 Completion Date. The Design-Builder
agrees to correct all construction performed under this Agreement which is
defective in construction workmanship or materials within a period of one year
from the Date of "Substantial Construction Completion" (as such term is defined
in the Phase 2 Design-Build Agreement). Corrective Work performed by the
Design-Builder to accomplish that purpose shall be subject to an additional
express warranty as provided for in this Section 3.7.1 that shall last until the
earlier of (a) one year from the date such corrective Work is completed or (b)
eighteen months from the Date of "Substantial Construction Completion" (as such
term is defined in the Phase 2 Design-Build Agreement).

3.7.2 To the extent products, equipment, systems or materials incorporated in
the Work are specified and purchased by the Owner; they shall be covered
exclusively by the warranty of the manufacturer. There are no warranties that
extend beyond the description on the face of any such warranty. To the


                                       9




<PAGE>

extent products, equipment, systems or materials incorporated in the Work are
specified by the Owner but purchased by the Design-Builder and are inconsistent
with selection criteria that otherwise would have been followed by the
Design-Builder, the Design-Builder shall assist the Owner in pursuing warranty
claims. A list of all material items purchased by the Design-Builder that are
inconsistent with the selection criteria that otherwise would have been followed
by the Design-Builder is set forth on Exhibit M. ALL OTHER WARRANTIES EXPRESSED
OR IMPLIED INCLUDING THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS
FOR A PARTICULAR PURPOSE ARE EXPRESSLY DISCLAIMED.

3.7.3 The Design-Builder shall secure required certificates of inspection,
testing or approval and deliver them to the Owner.

3.7.4 The Design-Builder shall collect all written warranties and equipment
manuals and deliver them to the Owner in a format directed by the Owner.

3.7.5 With the assistance of the Owner's maintenance personnel, the
Design-Builder shall direct the checkout of utilities and start up operations,
and adjusting and balancing of systems and equipment for readiness.

3.8 CONFIDENTIALITY The Design-Builder shall treat as confidential and not
disclose to third persons, except Subcontractors, Sub-subcontractors, the
Engineer and the Financing Parties and their representatives as is necessary for
the performance of the Work, or use for its own benefit any of the Owner's
developments, confidential information, know-how, discoveries, production
methods and the like that may be disclosed to the Design-Builder or which the
Design-Builder may acquire in connection with the Work. The Owner shall treat as
confidential information all of the Design-Builder's estimating systems
historical and parameter cost data and the Engineer's Design/Process information
that may be disclosed to the Owner in connection with the performance of this
Agreement.

3.9 ADDITIONAL SERVICES The Design-Builder shall provide or procure the
following Additional Services upon the request of the Owner. A written agreement
between the Owner and the Design-Builder shall define the extent of such
Additional Services before they are performed by the Design-Builder. Such
Additional Services shall be considered a Change in the Work, unless they are
specifically included in the statement of the basis of the GMP.

         .1 Consultations, negotiations, and documentation supporting the
         procurement of Project financing.

         .2 Surveys, site evaluations, legal descriptions and aerial
         photographs.

         . 3 Appraisals of existing equipment, existing properties, new
         equipment and developed properties.

         . 4 Consultations and representations before governmental authorities
         or others having jurisdiction over the Project other than normal
         assistance in securing building permits.

         .5 Investigation or making measured drawings of existing conditions or
         the reasonably required verification of Owner-provided drawings and
         information.

         .6 Artistic renderings, models and mockups of the Project or any part
         of the Project or the Work.

         .7 Estimates, proposals, appraisals, consultations, negotiations and
         services in connection with the repair or replacement of an insured
         loss, provided such repair or replacement did not result from the
         negligence of the Design-Builder.


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<PAGE>

         .8 Obtaining service contractors and training maintenance personnel,
         assisting and consulting in the use of systems and equipment after the
         initial start up.

         .9 Services for tenant or rental spaces not a part of this Agreement.

         .10 Services requested by the Owner or required by the Work which are
         not specified in the Contract Documents and which are not normally part
         of generally accepted design and construction practice.

         .11 Serving or preparing to serve as an expert witness in connection
         with any proceeding, legal or otherwise, regarding the Project.

         .12 Document reproduction exceeding the limits provided for in this
         Agreement.

3.10     PERMITS

3.10.1 DESIGN-BUILDER PERMITS Notwithstanding anything in this Agreement to the
contrary, the Design-Builder shall timely obtain and maintain all Design-Builder
Permits. In addition, the Design-Builder shall provide all assistance reasonably
requested by the Owner in connection with the Owner's efforts to obtain and
maintain the Owner Permits, including, without limitation, witnesses testimony,
depositions, preparation of exhibits, technical calculations and attending
meetings. In the event that any Applicable Permit is required for the Project or
to perform the Work that is not identified in the Contract Documents, the
Design-Builder or the Owner, as applicable, shall promptly, after it becomes
aware of the need for such Applicable Permit, notify the other party that such
Applicable Permit is required. If such permit is of a nature typically obtained
by contractors in similar projects, the Design-Builder shall, at its sole cost
and expense, be obligated to obtain and maintain such Applicable Permit on
behalf of the Owner. Otherwise, the Owner shall obtain and maintain such
Applicable Permit.

3.10.2 ISSUANCE OF PERMITS All Applicable Permits (other than any building
permits (but excluding any applicable occupancy certificates) or other
Applicable Permits designated as either "To be issued in the name of the
Design-Builder" or "To be issued in the name of the Owner and the
Design-Builder" on EXHIBIT J or EXHIBIT K) shall be issued in the name of the
Owner unless otherwise required by applicable Law or such Applicable Permit. If
any Design-Builder Permit (or application therefor) is in the name of the Owner
or otherwise requires action by the Owner, the Owner shall, upon the request of
the Design-Builder, sign such application or take such action as reasonably
appropriate.

3.10.3. REVIEW OF PERMITS The Owner reserves the right to review any such
application of the Design-Builder; provided, however, that the Owner's exercise
of such right shall not under any circumstances, be considered an approval of
the necessity, effect or contents of such application or related permit. The
Design-Builder shall deliver to the Owner true and complete copies of all
Applicable Permits obtained by the Design-Builder upon its receipt thereof. The
Design-Builder shall use best efforts to identify in writing to the Owner all
Applicable Permits and other government requirements for performance of the Work
not identified in the Contract Documents, or shall confirm in writing that, to
the best of the Design-Builder's knowledge, there are no such Applicable Permits
or other government requirements other than as identified in the Contract
Documents prior to the date of this Agreement.

3.11 DESIGN-BUILDER'S REPRESENTATIVE The Design-Builder shall designate a person
who shall be the Design-Builder's authorized representative. The
Design-Builder's Representative is: MR. RICK AMIGH.

ARTICLE 4 -OWNER'S RESPONSIBILITIES

4.1      INFORMATION AND SERVICES PROVIDED BY OWNER

4.1.1 The Owner shall provide full information in a timely manner regarding
requirements for the Project, including the Owner's Program and other relevant
information.


                                       11




<PAGE>

4.1.2    The Owner shall provide:

         .1 all available information describing the physical characteristics of
         the site, including surveys, site evaluations, legal descriptions,
         existing conditions, subsurface and environmental studies, reports and
         investigations;

         .2 inspection and testing services during construction as required by
         law or as mutually agreed; and

         .3 unless otherwise provided in the Contract Documents, necessary
         approvals, site plan review, rezoning, easements and assessments, fees,
         permits and charges required for the construction, use, occupancy or
         renovation of permanent structures, including legal and other required
         services.

4.1.3 The Owner shall provide reasonable evidence satisfactory to the
Design-Builder, prior to commencing the Work and during the progress of the
Work, that sufficient funds are available and committed for the entire cost of
the Project, including a reasonable allowance for changes in the Work as may be
approved in the course of the Work. Unless such reasonable evidence is provided,
the Design-Builder shall not be required to commence or continue the Work. The
Design-Builder may stop Work after seven (7) days written notice to the Owner if
such evidence is not presented within a reasonable time. The failure of the
Design-Builder to insist upon the providing of this evidence at any one time
shall not be a waiver of the Owner's obligation to make payments pursuant to
this Agreement, nor shall it be a waiver of the Design-Builder's right to
require that such evidence be provided at a later date.

4.1.4 The Design-Builder shall be entitled to rely on the completeness and
accuracy of the information and services required by this Paragraph 4.1.

4.2      OWNER RESPONSIBILITIES

4.2.1 The Owner shall provide information for the Owner's Program at the
inception of the Agreement and shall review and timely approve in writing all
schedules, estimates, Preliminary Estimate, Schematic Design Documents, Design
Development Documents and Construction Documents furnished as set forth in
Paragraph 3.1.

4.2.2 The Owner shall provide good-faith negotiations in a timely manner so as
not to delay any contractual agreements.

4.3      [RESERVED]

4.4      OWNER'S REPRESENTATIVE The Owner's Representative is MR. NEIL KOEHLER.
         The Representative:

         .1 shall be fully acquainted with the Project;

         .2 agrees to furnish the information and services required of the Owner
         pursuant to Paragraph 4.1 so as not to delay the Design-Builder's Work;
         and

         .3 shall have authority to bind the Owner in all matters requiring the
         Owner's approval, authorization or written notice if the Owner changes
         its representative or the representative's authority as listed above,
         the Owner shall notify the Design-Builder in writing in advance.

4.5 TAX EXEMPTION If in accordance with the Owner's direction the Design-Builder
may claim an exemption for taxes and the Owner shall defend, indemnify and hold
the Design-Builder harmless for all liability, penalty, interest, fine, tax
assessment, attorney's fees or other expense or cost incurred by the


                                       12




<PAGE>

Design-Builder as a result of any action taken by the Design-Builder in
accordance with the Owner's direction.

ARTICLE 5 - SUBCONTRACTS

Work not performed by the Design-Builder with its own forces shall be performed
by Subcontractors or the Engineer.

5.1 RETAINING SUBCONTRACTORS The Design-Builder shall not retain any
subcontractor to whom the Owner has a reasonable and timely objection, provided
that the Owner agrees to compensate the Design-Builder for any additional costs
incurred by the Design-Builder as a result of such objection. The Owner may
propose subcontractors to be considered by the Design-Builder. The
Design-Builder shall not be required to retain any subcontractor to whom the
Design-Builder has a reasonable objection.

5.2 MANAGEMENT OF SUBCONTRACTORS The Design-Builder shall be responsible for the
management of the Subcontractors and the Engineer in the performance of their
work and require all Subcontractors, the Engineer and third party
sub-subcontractors and suppliers, as necessary, to comply with all of the
provisions of the Agreement.

5.3 BINDING OF SUBCONTRACTORS AND MATERIALS SUPPLIERS The Design-Builder agrees
to bind every Subcontractor, the Engineer and Material Supplier (and require
every Subcontractor to so bind its Sub-subcontractors and Material Suppliers) to
all the provisions of this Agreement and the Contract Documents as they apply to
the Subcontractor's and Material Supplier's portions of the Work.

5.4 LABOR RELATIONS As of the date of this Agreement, the Design-Builder is
signatory to the following labor agreements:

         1.       Northern Operating Engineers
         2.       Northern Laborers
         3.       Northern Pipe Fitters
         4.       Northern Carpenters
         5.       Northern Millwrights
         6.       Northern Cement Masons

ARTICLE 6 - TIME

6.1 DATE OF COMMENCEMENT Time is of the essence. The Date of Commencement is the
effective date of this Agreement as first written in Article 1. The Work shall
proceed in general accordance with the Schedule of Work as such schedule may be
amended from time to time, subject, however, to other provisions of this
Agreement.

6.2 DESIGN PHASE COMPLETION The Phase I Completion Date for the Contract
Services, subject to adjustments as provided for in the Contract Documents, is
established pursuant to the terms hereof.

6.2.1 Time limits stated in the Contract Documents are of the essence.

6.2.2 Unless instructed by the Owner in writing, the Design-Builder shall not
knowingly commence the Work before the effective date of insurance that is
required to be provided by the Design-Builder or the Owner.

6.3      DELAYS IN THE WORK

6.3.1 Notwithstanding anything in this Agreement to the contrary, the GMP, the
Design-Builder's Fee and Phase 1 Completion Date may be adjusted only and as and
to the extent provided for in Sections 6.4, 9.1, 9.4 and 9.7, or as a result of
Owner-Caused Delay.


                                       13




<PAGE>

6.3.2 In the event delays to the Project are encountered for any reason, the
parties agree to undertake reasonable steps to mitigate the effect of such
delays.

6.4      FORCE MAJEURE

6.4.1 As used herein, "Force Majeure Event" means any cause(s) which render(s) a
party wholly or partly unable to perform its obligations under this Agreement
(other than obligations to make payments when due), and which are neither
reasonably within the control of such party nor the result of the fault or
negligence of such party, and which occur despite all reasonable attempts to
avoid, mitigate or remedy, and shall include acts of God, war, riots, civil
insurrections, adverse weather conditions, cyclones, hurricanes, floods, fires,
explosions, earthquakes, lightning, storms, chemical contamination, epidemics or
plagues, acts or campaigns of terrorism or sabotage, blockades, embargoes,
accidents or interruptions to transportation not caused by the Design-Builder,
trade restrictions, acts of any governmental authority after the date of this
Agreement, failure to obtain Applicable Permits (provided, that the party
responsible for such Applicable Permits has diligently pursued the receipt
thereof), strikes and other labor difficulties not caused by the Design-Builder,
mechanical breakdowns, and other events or circumstances beyond the reasonable
control of such party.

6.4.2 A party claiming relief as a result of a Force Majeure Event shall give
the other parties written notice within ten (10) Business Days of becoming aware
of the occurrence of the Force Majeure Event, or as soon thereafter as
practicable, describing the particulars of the Force Majeure Event, and will use
reasonable efforts to remedy its inability to perform as soon as possible. If
the Force Majeure Event (including the effects thereof) continues for fifteen
(15) consecutive days, the affected party shall report to the other parties the
status of its efforts to resume performance and the estimated date thereof. If
the affected party was not able to resume performance prior to or at the time of
the report to the other parties of the onset of the Force Majeure Event, then it
will report in writing to the other parties when it is again able to perform. If
a party fails to give timely notice, the excuse for its non-performance shall
not begin until notice is given.

6.4.3 Any obligation(s) of a party (other than an obligation to make payments
when due) may be temporarily suspended during any period such party is unable to
perform such obligation(s) by reason of the occurrence of a Force Majeure Event,
but only to the extent of such inability to perform, provided, that: (a) the
suspension of performance is of no greater scope and of no longer duration than
is reasonably required by the Force Majeure Event; and (b) the party claiming
the occurrence of the Force Majeure Event bears the burden of proof.

6.4.4 If the Force Majeure Event (including the effects thereof) continues for
one hundred eighty (180) consecutive days, the affected party may terminate this
Agreement for convenience. In connection with any termination of this Agreement
by the Owner pursuant to this Section 6.4.4, the Owner shall not be required to
pay the termination fee set forth in Section 12.2.1.

ARTICLE 7 - COMPENSATION

7.1      DESIGN PHASE

7.1.1 To the extent required by applicable law, the cost of services performed
directly by the Engineer is computed separately and is independent from the
Design-Builder's compensation for work or services performed directly by the
Design-Builder; these costs shall be shown as separate items on applications for
payment. The payments to the Engineer shall be as detailed in a separate
agreement between the Design-Builder and the Engineer.

7.1.2 The Owner shall compensate the Design-Builder for services performed
during the Design Phase as described in Paragraph 3.1, including preparation of
the accepted GMP Proposal, as described in Paragraph 3.2 for establishing the
project requirements, general business planning and other information and
documentation as may be required to establish the feasibility of the project,
making revisions to the


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<PAGE>

Schematic Design, design Development, Design, coordination, management,
expediting and other services supporting the procurement of materials to be
obtained, or work to be performed, by the Owner, including but not limited to
telephone systems, computer wiring networks, sound systems, alarms, security
systems and other specialty systems which are not a part of the Work,
Preliminary Construction Schedules and Estimates, Construction Documents forming
the basis of the Lump Sum / GMP.

7.1.3 Compensation for Contract Services, as part of the Work, as outlined in
Amendment(s) shall include the Design-Builder's Fee as established and paid in
proportion to the services performed, subject to adjustment as provided in the
Contract Documents.

7.1.4 For changes in Contract Services, any additional compensation shall be
adjusted as indicated in the Project Development Agreement signed by the
Design-Builder and Engineer.

7.1.5 Within fifteen (15) days after receipt of each monthly application for
payment, the Owner shall give written notice to the Design-Builder of the
Owner's acceptance or rejection, in whole or in part, of such application for
payment. Within fifteen (15) days after accepting such application, the Owner
shall pay directly to the Design-Builder the appropriate amount for which
application for payment is made, less amounts previously paid by the Owner. If
such application is rejected in whole or in part, the Owner shall indicate the
reasons for its rejection. If the Owner and the Design-Builder cannot agree on a
revised amount then, within fifteen (15) days after its initial rejection in
part of such application, the Owner shall pay directly to the Design-Builder the
appropriate amount for those items not rejected by the Owner for which
application for payment is made, less amounts previously paid by the Owner.
Those items rejected by the Owner shall be due and payable when the reasons for
the rejection have been removed.

7.1.6 If the Owner fails to pay the Design-Builder at the time payment of any
account becomes due, then the Design-Builder may, at any time thereafter, upon
serving written notice that the Work will be stopped within seven (7) days after
receipt of the notice by the Owner, and after such seven (7) day period, stop
the Work until payment of the amount owing has been received.

7.1.7 Payments due pursuant to Subparagraph 7.1.5, may bear interest from the
date payment is due at the prime rate prevailing at the location of Project.

7.1.8 All compensation for the Design Phase shall be outlined in Exhibit(s)
attached to this Agreement.

7.2 [RESERVED.]

 7.3 DESIGN-BUILDER'S FEE The Design-Builder's Fee shall be as follows, subject
to adjustment as provided in Paragraph 7.4, Time and Material Costs per Exhibit
B for the scope of services listed in Exhibit D payable each month as provided
in Paragraph 7.1.5.

7.4 ADJUSTMENT IN THE DESIGN-BUILDER'S FEE Adjustment in the Design-Builder's
Fee shall be made as follows:

         .1 for changes in the Work as provided in Article 9, the
         Design-Builder's Fee shall be adjusted per the most current Time and
         Material Costs as outlined in Exhibit B for the scope of work listed in
         Exhibit D.

         .2 for delays in the Work not caused by the Design-Builder, as provided
         in Subparagraph 6.3.1, and except as provided in Subparagraph 6.3.2,
         there will be an equitable adjustment in the Design-Builder's Fee to
         compensate the Design-Builder for increased expenses; and

         .3 if the Design-Builder is placed in charge of managing the
         replacement of an insured or uninsured loss, the Design-Builder shall
         be paid an additional fee in the same proportion that the
         Design-Builder's Fee bears to the estimated Cost of the Work for the
         replacement.


                                       15




<PAGE>

The Owner agrees to pay the Design-Builder for the Cost of the Work as defined
in this Article. This payment shall be in addition to the Design-Builder's Fee
stipulated in Paragraph 7.3.

ARTICLE 8 - LIENS

8.1 DISCHARGE OF LIENS Provided the Owner has paid the Design-Builder as
required under this Agreement, within ten (10) days of receiving any notice of
any Lien filed by any Subcontractor, or any person working for, or through, the
Design-Builder or any Subcontractor, the Design-Builder shall promptly commence
to cause such Lien to be discharged or satisfied by bond or otherwise including,
without limitation, by raising valid counterclaims against such Subcontractor.
The expense of discharging or satisfying by bond any such Lien shall be paid by
the Design-Builder at its sole cost and expense and shall not be a part of the
GMP payable to the Design-Builder. The Design-Builder shall indemnify, defend
and hold harmless the Owner, its affiliates and all persons acting for any of
them, from and against any Lien against the property of the Owner. if the Owner
receives notice of any such Lien, the Owner shall provide notice thereof to the
Design-Builder. The Design-Builder shall promptly commence all necessary
proceedings to discharge or satisfy by bond any such Lien as soon as possible,
bearing all the relevant costs thereof. The Owner shall have the right to retain
and withhold amounts on account of the GMP in an amount sufficient to indemnify
the Owner against any such Lien until such time as the Owner becomes satisfied
that such Lien is discharged or satisfied by bond.

8.2 LIEN WAIVERS IN CONNECTION WITH PAYMENT As a condition precedent to the
making of the final payment hereunder, the Design-Builder shall provide the
Owner with a signed certificate in the form attached hereto as Exhibit L-1 at
the time the Design-Builder submits an invoice for such final payment. As a
condition precedent to Completion, the Design-Builder shall have delivered to
the Owner a signed certificate in the form attached hereto as Exhibit L-2.

ARTICLE 9 - CHANGES IN THE WORK

Changes in the Work which are within the general scope of this Agreement may be
accomplished, without invalidating this Agreement, by Change Order, Work Change
Directive, or a minor change in the work, subject to the limitations stated in
the Contract Documents.

9.1      CHANGE ORDER

9.1.1 The Design-Builder may request and/or the Owner, without invalidating this
Agreement, may order changes in the Work within the general scope of the
Contract Documents consisting of additions, deletions or other revisions to the
GMP or the estimated cost of the work, compensation for Contract Services, the
Design-Builder's Fee and/or the Phase I Completion Date being adjusted
accordingly. All such changes in the Work shall be authorized by applicable
Change Order, and shall be performed under the applicable conditions of the
Contract Documents.

9.1.2 Each adjustment in the GMP and/or estimated Cost of the Work resulting
from a Change Order shall clearly separate the amount attributable to
compensation for Contract Services, other Cost of Work and the Design-Builder's
Fee

9.1.3 The Owner and the Design-Builder shall negotiate in good faith an
appropriate adjustment to the GMP or the estimated Cost of the Work,
compensation for Contract Services, the Design-Builder's Fee and/or the Phase 1
Completion Date and shall conclude these negotiations as expeditiously as
possible. Acceptance of the Change Order and any adjustment in the GMP, the
estimated Cost of the Work, compensation for Contract Services, the
Design-Builder's Fee and/or the Phase 1 Completion Date shall not be
unreasonably withheld.

9.2      PROPOSED CHANGE ORDERS (PCO'S)

9.2.1 The Owner may issue a written Proposed Change Orders directing a change in
the Work prior to reaching agreement with the Design-Builder on the adjustment,
if any, in the GMP, estimated Cost of the Work, the Design-Builder's Fee, the
Phase I Completion Date, and if appropriate, the compensation for Contract
Services.


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<PAGE>

9.2.2 The Owner and the Design-Builder shall negotiate expeditiously and in good
faith for appropriate adjustments, as applicable, to the GMP, estimated Cost of
the Work, the Design-Builder's Fee, the Phase 1 Completion Date, and if
appropriate the compensation for Contract Services, arising out of Proposed
Change Orders. As the changed work is completed, the Design-Builder shall submit
its costs for such work with its application for payment beginning with the next
application for payment within thirty (30) days of the issuance of the Proposed
Change Orders Pending final determination of cost to the Owner, amounts not in
dispute may be included in applications for payment and shall be paid by the
Owner.

9.2.3 If the Owner and the Design-Builder agree upon the adjustments in the GMP,
estimated Cost of the Work, the Design-Builder's Fee, the Phase 1 Completion
Date, and if appropriate the compensation for Contract Services, for a change in
the Work directed by a Proposed Change Order, such agreement shall be the
subject of an appropriate Change Order. The Change Order shall include all
outstanding PCO's issued since the last Change Order.

9.3      MINOR CHANGES IN THE WORK

9.3.1 The Design-Builder may make minor changes in the design and construction
of the Project consistent with the intent of the Contract Documents which do not
involve an adjustment in the GMP, estimated Cost of the Work, the
Design-Builder's Fee, the Phase 1 Completion Date, and do not materially and
adversely affect the design of the Project, the quality of any of the materials
or equipment specified in the Contract Documents, the performance of any
materials, equipment or systems specified in the Contract Documents, or the
quality of workmanship required by the Contract Documents.

9.3.2 The Design-Builder shall promptly inform the Owner in writing of any such
changes and shall record such changes on the Design-Build Documents maintained
by the Design-Builder.

9.4 UNKNOWN CONDITIONS If in the performance of the Work the Design-Builder
finds latent, concealed or subsurface physical conditions or any Pre-Existing
Hazardous Materials, which materially differ from the conditions the
Design-Builder reasonably anticipated, or if physical conditions are materially
different from those normally encountered and generally recognized as inherent
in the kind of work provided for in this Agreement, then the GMP, estimated Cost
of the Work, the Design-Builder's Fee, the Phase I Completion Date, and if
appropriate the compensation for Contract Services, shall be equitably adjusted
by Change Order within a reasonable time after the conditions are first
observed. The Design-Builder shall provide the Owner with written notice within
the time period set forth in Paragraph 9.6.

9.5      DETERMINATION OF COST

9.5.1 An increase or decrease in the GMP and/or estimated Cost of the Work
resulting from a change in the Work shall be determined be Time and Material
Costs per Exhibit B as defined in Paragraph 7.2, Article 8 and subparagraph
7.4.1.

9.5.2 If the Owner and the Design-Builder disagree as to whether work required
by the Owner is within the scope of the Work, the Design-Builder shall furnish
the Owner with an estimate of the costs to perform the disputed work in
accordance with the Owner's interpretations. If the Owner issues a written order
for the Design-Builder to proceed, the Design-Builder shall perform the disputed
work and the Owner shall pay the Design-Builder fifty percent (50%) of its
estimated cost to perform the work. In such event, both parties reserve their
rights as to whether the work was within the scope of the Work. The Owner's
payment does not prejudice its right to be reimbursed should it be determined
that the disputed work was within the scope of Work. The Design-Builder's
receipt of payment for the disputed work does not prejudice its right to receive
full payment for the disputed work should it be determined that the disputed
work is not within the scope of the Work.


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<PAGE>

9.6 EMERGENCIES In any emergency affecting the safety of persons and/or
property, the Design-Builder shall act, at its discretion, to prevent threatened
damage, injury or loss. Any change in the GMP, estimated Cost of the Work, the
Design-Builder's Fee, the Phase I Completion Date, and if appropriate
compensation for Contract Services, on account of emergency work shall be
determined as provided in this Article.

9.7 CHANGES IN LAW In the event any changes in laws or regulations affecting the
performance of the Work are enacted after the date of this Agreement, the GMP,
estimated Cost of the Work, the Design-Builder's Fee, the Phase 1 Completion
Date, and if appropriate the compensation for Contract Services, shall be
equitably adjusted by Change Order.

ARTICLE 10 - PAYMENT FOR SERVICES

10.1     PROGRESS PAYMENTS

10.1.1 On the 5th day of each month after the Notice to Proceed has been given
by the Owner to the Design-Builder, the Design-Builder shall submit to the Owner
an application for payment consisting of the Cost of the Work performed up to
the end of the month, including the cost of material suitably stored on the
Worksite or at other locations approved by the Owner, along with a proportionate
share of the Design-Builder's Fee. Approval of payment applications for such
stored materials shall be conditioned upon submission by the Design-Builder of
bills of sale and applicable insurance or such other procedures satisfactory to
the Owner to establish the Owner's title to such materials, or otherwise to
protect the Owner's interest, including transportation to the site. Prior to
submission of the next application for payment, the Design-Builder shall furnish
to the Owner a statement accounting for the disbursement of funds received under
the previous application. The extent of such statement shall be as agreed upon
between the Owner and the Design-Builder.

10.1.2 Within ten (10) days after receipt of each monthly application for
payment, the Owner shall give written notice to the Design-Builder of the
Owner's acceptance or rejection, in whole or in part, of such application for
payment. Within fifteen (15) days after accepting such application, the Owner
shall pay directly to the Design-Builder the appropriate amount for which
application for payment is made, less amounts previously paid by the Owner. If
such application is rejected in whole or in part, the Owner shall indicate the
reasons for its rejection. If the Owner and the Design-Builder cannot agree on a
revised amount then, within fifteen (15) days after its initial rejection in
part of such application, the Owner shall pay directly to the Design-Builder the
appropriate amount for those items not rejected by the Owner for which
application for payment is made, less amounts previously paid by the Owner.
Those items rejected by the Owner shall be due and payable when the reasons for
the rejection have been removed.

10.1.3 If the Owner fails to pay the Design-Builder at the time payment of any
amount becomes due, then the Design-Builder may, at any time thereafter, upon
serving written notice that the Work will be stopped within seven (7) days after
receipt of the notice by the Owner, and after such seven day period, stop the
Work until payment of the amount owing has been received.

10.1.4 Payments due but unpaid pursuant to Subparagraph 10.1.2, less any amount
retained pursuant to Paragraphs 10.2 and 10.3 may bear interest from the date
payment is due at the prime rate prevailing at the place of the Project.

10.1.5 The Design-Builder warrants and guarantees that a conditional release of
all Work, materials and equipment covered by a dated application for payment
will pass to the Owner upon submission. In connection with the final payment
hereunder, the Design-Builder shall provide to the Owner a release of all Liens,
claims, security interests or encumbrances as and to the extent provided for in
Section 8.2.

10.1.6 The Owner's progress payment, occupancy or use of the Project, whether in
whole or in part, shall not be deemed an acceptance or any Work not conforming
to the requirements of the Contract Documents.


                                       18




<PAGE>

10.1.7 Upon Completion of the Work, the Owner shall pay the Design-Builder the
unpaid balance of the Cost of the Work, compensation for Contract Services and
the Design-Builder's Fee.

10.1.8 In connection with each application for payment submitted by the
Design-Builder pursuant to Section 10.1.1, the Design-Builder shall prepare and
submit to the Owner and its independent engineer written progress reports, in a
form reasonably acceptable to the Owner, which include a description of the
progress and status of the Work compared to the Schedule of Work, the status of
equipment and other scheduled deliveries, the Subcontractors' activities, cost
reporting (in accordance with Section 3.2.3 hereof) and engineering, procurement
and construction progress. At the request of the Owner or its independent
engineer, photographs shall also be included documenting the construction
progress. Each photograph shall show the date, the Design-Builder's name and
description of the view taken. in accordance with Section 3.3 hereof, the
Design-Builder shall also report any events which may affect the Schedule of
Work, including any Force Majeure Events, Liens on the Project, or any asserted
violations of laws or Applicable Permits.

10.2     [RESERVED.]

10.3 ADJUSTMENT OF DESIGN-BUILDER'S APPLICATION FOR PAYMENT The Owner may adjust
or reject an application for payment or nullify a previously approved
Design-Builder application for payment, in whole or in part, as may reasonably
be necessary to protect the Owner from loss or damage based upon the following,
to the extent that the Design-Builder is responsible under this Agreement:

         .1 the Design-Builder's repeated failure to perform the Work as
         required by the Contract Documents;

         .2 loss or damage arising out of or relating to this Agreement and
         caused by the Design-Builder to the Owner or Others to whom the Owner
         may be liable;

         .3 the Design-Builder's failure to properly pay the Engineer,
         Subcontractors or Material Suppliers for labor, materials, equipment or
         supplies furnished in connection with the Work, provided that the Owner
         is making payments to the Design-Builder in accordance with the terms
         of this Agreement;

         .4 Defective Work not corrected in a timely fashion;

         .5 reasonable evidence of delay in performance of the Work such that
         the Work will not be completed by the Phase 1 Completion Date, and that
         the unpaid balance of the GMP is not sufficient to offset any direct
         damages that may be sustained by the Owner as a result of the
         anticipated delay caused by the Design-Builder; and

         .6 reasonable evidence demonstrating that the unpaid balance of the GMP
         is insufficient to fund the cost to complete the Work.

The Owner shall give written notice to the Design-Builder at the time of
disapproving or nullifying all or part of an application for payment of the
specific reasons. When the above reasons for disapproving or nullifying an
application for payment are removed, payment will be made for the amount
previously withheld.

10.4     [RESERVED.]

10.5     FINAL PAYMENT

10.5.1 Final Payment, consisting of the unpaid balance of the Cost of the Work,
compensation for Contract Services and the Design-Builder's Fee, shall be due
and payable when the work is fully completed. Before issuance of final payment,
the Owner may request satisfactory evidence that all payrolls, material bills
and other indebtedness connected with the Work have been paid or otherwise
satisfied.


                                       19




<PAGE>

10.5.2 In making final payment the Owner waives all claims except for:

         .1 outstanding Liens;

         .2 improper workmanship or defective materials appearing within one
         year after the Phase 1 Completion Date;

         .3 work not in conformance with the Contract Documents; and

         .4 terms of any special warranties required by the Contract Documents.

10.5.3 In connection with its acceptance of the final payment, the
Design-Builder waives all claims pursuant to its delivery to the Owner of a
Certificate of Completion and Lien release in the form of Exhibit L-2.

ARTICLE 11- INDEMNITY, INSURANCE, BONDS, AND WAIVER OF SUBROGATION

11.1     INDEMNITY

11.1.1 To the fullest extent permitted by law, the Design-Builder shall defend,
indemnify and hold harmless the Owner, Owner's officers, directors, members,
consultants, agents and employees from all claims for bodily injury and property
damage (other than to the Work itself and other property required to be insured
under Paragraph 11.5 owned by or in the custody of the Owner), that may arise
from the performance of the Work, to the extent of the negligence attributed to
such acts or omissions by the Design-Builder, Subcontractors or anyone employed
directly or indirectly by any of them or by anyone for whose acts any of them
may be liable, or as otherwise caused by a breach by the Design-Builder of its
obligations hereunder. The Design-Builder shall not be required to defend,
indemnify or hold harmless the Owner, Owner's officers, directors, members,
consultants, agents and employees for any acts, omissions or negligence of the
Owner, the Owner's officers, directors, members, consultants, employees, agents
or separate contractors.

11.1.2 To the fullest extent permitted by law, the Owner shall defend, indemnify
and hold harmless the Design-Builder, its officers, directors or members,
Subcontractors or anyone employed directly or indirectly by any of them or
anyone for whose acts any of them may be liable from all claims for bodily
injury and property damage, other than property insured under Paragraph 11.5,
that may arise from the performance of work by Others, to the extent of the
negligence attributed to such acts or omissions by Others.

11.2     DESIGN-BUILDER'S LIABILITY INSURANCE

11.2.1 The Design-Builder shall obtain and maintain insurance coverage for the
following claims which may arise out of the performance of this Agreement,
whether resulting from the Design-Builder's operations or form the operations of
any Subcontractor, anyone in the employ of any of them, or by an individual or
entity for whose acts they may be liable:

         .1 workers' compensation, disability and other employee benefit claims
         under acts applicable to the Work;

         .2 under applicable employer's liability law, bodily injury,
         occupational sickness, disease or death claims of the Design-Builder's
         employees;

         .3 personal injury liability claims for damages directly or indirectly
         related to the person's employment by the Design-Builder or for damages
         to any other person;


                                       20




<PAGE>

         .4 claims for physical injury to tangible property, including all
         resulting loss of use of that property, to property other than the Work
         itself and property insured under Paragraph 11.5;

         .5 bodily injury, death or property damage claims resulting from motor
         vehicle liability in the use, maintenance or ownership of any motor
         vehicle; and

         .6 contractual liability claims involving the Design-Builder's
         obligations under Subparagraph 11.1.1.

112.2 The Design-Builder's Broad Form Commercial General and Automobile
Liability Insurance as required by Subparagraph 11.2.1 shall be written for not
less than and include the following limits of liability:

         .1       Commercial General Liability Insurance

                  a.       Each Occurrence Limit                 $ 1,000,000
                                                             ------------------

                  b.       General Aggregate                     $ 2,000,000
                                                             ------------------

                  c.       Products/Completed
                           Operations Aggregate                  $ 1,000,000
                                                             ------------------

                  d.       Personal and Advertising
                           Injury Limit                          $ 1,000,000
                                                             ------------------

                  e.       Independent Contractors               $ 1,000,000
                                                             ------------------

         .2       Comprehensive Automobile Liability Insurance

                  a.       Combined Single Limit Bodily
                          Injury and Property Damage             $ 1,000,000
                                                             ------------------
                                                               Each Occurrence

11.2.3 Commercial General Liability Insurance may be arranged under a single
policy for the full limits required or by a combination of underlying policies
and an Excess or Umbrella Liability policy.

11.2.4 The policies shall contain a provision that coverage will not be canceled
or not renewed until at least thirty (30) days' notice has been given to the
Owner and, to the extent applicable, the agent for the Financing Parties.
Certificates of insurance showing required coverage to be in force shall be
filed with the Owner prior to commencement of the Work.

11.2.5 Umbrella Liability Insurance shall protect the parties against claims
excess of the limits provided under the worker's compensations liability,
commercial general liability and automotive liability.

         .1       Umbrella Liability Insurance

                  a.       Umbrella Excess                    $   10,000,000
                                                              ------------------
                                                                Each Occurrence

11.2.6 Pollution legal liability insurance (in an amount equal to $1,000,000 per
occurrence) shall protect the parties against claims arising from bodily injury,
death or property damage to third parties as a result of sudden and accidental
pollution.

11.2.7 Products and Completed Operations insurance shall be maintained for a
minimum period of at least 5 year(s) after final payment.


                                       21




<PAGE>

On Policies under Clauses 11.2, each party shall list the other parties and the
Owner as an additional insured, and such policies shall be primary over any
other insurance carried by the additional insured's.

11.3     PROFESSIONAL LIABILITY INSURANCE

11.3.1 The Engineer shall obtain professional liability insurance for claims
arising from the negligent performance of professional services under this
Agreement, which shall be General or Project Specific Professional Liability
Insurance written for not less than acceptable per claim/aggregate limits of not
less than $5,000,000, with a deductible not to exceed those amounts listed in
the Agreement between the Design-Builder and the Engineer. The Professional
Liability Insurance shall include prior acts coverage sufficient to cover all
services rendered by the Engineer. This coverage shall be continued in effect
for 5 years after the Phase I Completion Date.

11.3.2 On the Insurance Policies procured and carried by the Engineer under its
Agreement with the Design-Builder, each party shall list the other parties, the
Owner and, to the extent applicable, the Financing Parties as additional
insureds and permit a waiver of subrogation in their favor where applicable, and
such policies shall be primary over any other insurance carried by the
additional insured's, except for Workers Compensation and Professional
Liability. It is agreed that the primary insurance coverage with respect to the
Engineer, or if excess, shall stand in an unbroken chain of coverage regardless
of the Design-Builder's scheduled underlying coverage. Any insurance or
self-insurance maintained by the Engineer and their directors, officers,
employee, agents and volunteers shall be primary to that of any maintained
insurance or self-insurance coverage by the Design-Builder.

11.4 OWNER'S LIABILITY INSURANCE The Owner shall be responsible for obtaining
and maintaining its own liability insurance. Insurance for claims arising out of
the performance of this Agreement may be purchased and maintained at the Owner's
discretion. The Owner shall provide the Design-Builder with a certificate of
insurance at the request of the Design-Builder.

11.5     INSURANCE TO PROTECT PROJECT

11.5.1 The Design-Builder shall at its expense procure All Risk" Builder's Risk
and Machinery Breakdown Insurance. Such "All Risk" Builder's Risk Insurance
shall be in a form acceptable to the Owner upon the Project for the cost of
replacement at the time of any stated loss. This insurance shall include the
Owner and the Design Builder as a Named Insured and the Financing Parties (to
the extent applicable), the Engineer, Subcontractors, Material Suppliers, and
Sub-subcontractors as Additional Insureds. This insurance be written on a
replacement cost value basis and shall include "all risk" insurance for physical
loss or damage including without duplication of coverage at least: theft,
vandalism, malicious mischief, transit, materials stored off site, collapse,
false-work, temporary buildings, debris removal, flood, earthquake, workmanship
or material. If also requested by the Owner, the Design-Builder shall obtain a
Builder's Risk delay in start-up and testing policy that covers plant operations
for a stated period of time. The Design-Builder may increase limits of coverage,
if necessary, to reflect estimated replacement cost at the discretion of the
Design-Builder. The insurance policy shall be written without a co-insurance
clause. The Design-Builder and Owner shall share the responsibility for any
deductible amounts at a 50/50 rate.

11.5.2 If necessary and at the Owner's expense, the Owner shall purchase and
maintain insurance to protect the Owner, the Design-Builder, the Engineer,
Subcontractors, and Sub-subcontractors against loss of use of the Owner's
property due to those perils insured pursuant to Paragraph 11.5. Such policy
will provide coverage for expediting expenses of materials, continuing overhead
of the Owner and the Design-Builder, the Engineer, Subcontractors, Material
Suppliers and Sub-subcontractors, necessary labor expense including overtime,
loss of income by the Owner and other determined exposures. Exposures of the
Owner, the Design-Builder, the Engineer, Subcontractors and Sub-subcontractors,
shall be determined by mutual agreement with separate limits of coverage fixed
for each item.


                                       22




<PAGE>

11.5.3 The Owner and Design-Builder shall provide each other with copies of all
insurance policies before an exposure to loss may occur. Copies of any
subsequent endorsements shall be furnished as necessary. The cost of any
insurance shall be added to the Cost of the Work pursuant to Article 8, and the
GMP shall be increased by Change Order.

11.6     PROPERTY INSURANCE LOSS ADJUSTMENT

11.6.1 Any insured loss shall be adjusted with the Owner and the Design-Builder
and losses exceeding $500,000 shall be made payable to the agent for the
Financing Parties (if any, and if not, to the Owner) with losses below $500,000
(not to exceed $1,000,000 in any one year) made payable to the Design-Builder as
trustee for the insureds, as their interests may appear, subject to any
applicable mortgagee clause.

11.7     WAIVER OF SUBROGATION

11.7.1 The Owner and the Design-Builder waive all rights against each other, the
Engineer, and any of their respective employees, agents, consultants,
Subcontractors, Sub-subcontractors and Financing Parties for damages covered by
the insurance provided pursuant to Paragraph 11.5 to the extent they are covered
by that insurance, except such rights as they may have to the proceeds of such
insurance held by the Owner and the Design-Builder as trustees. The
Design-Builder shall require similar waivers from the Engineer and all
Subcontractors, and shall require each of them to include similar waivers in
their sub-subcontracts and consulting agreements.

11.7.2 The Owner waives subrogation against the Design-Builder, the Engineer,
Subcontractors, Sub-subcontractors and Financing Parties on all property and
consequential loss policies carried by the Owner on adjacent properties and
under property and consequential loss policies purchased for the Project after
its completion.

11.7.3 All policies except worker's compensation shall be endorsed to state that
the carrier waives any right to subrogation against the Design-Builder, the
Engineer, Subcontractors or Sub-subcontractors.

 11.8 EFFECTIVENESS OF INSURANCE The Design-Builder acknowledges that the
insurance coverages it is required to maintain pursuant to the terms of Article
11 are effective as of the date of this Agreement.

 11.9 MUTUAL WAIVER OF CONSEQUENTIAL DAMAGES The Owner and the Design-Builder
agree to waive all claims against the other for all consequential damages that
may arise out of or relate to this Agreement. The Owner agrees to waive damages
including but not limited to the Owner's loss of use of the Property, all rental
expenses incurred, loss of services of employees, or loss of reputation. The
Design-Builder agrees to waive damages including but not limited to the loss of
business, loss of financing, principle office overhead and profits, loss of
profits not related to this Project, or loss of reputation. This paragraph shall
not be construed to preclude contractual provisions for liquidated damages when
such provisions relate to direct damages only. The provisions of this paragraph
shall govern the termination of this Agreement and shall survive such
termination.

11.10    LIMITATION OF LIABILITY; COMPLETION GUARANTEE

11.10.1 INSURED Claim The Design-Builder's obligation and liability pursuant to
this Agreement, or arising in connection with the Project or the Work
(including, without limitation, obligation or liability with respect to failure
to meet, or other breach of, any guarantees or remedies hereunder and the cost
of defense of any claim indemnifiable hereunder), whether any such obligation or
liability be based upon the theory of, or arising out of, negligence, strict
liability, other tort, contract, warranty, misrepresentation, patent
infringement or otherwise, for any obligation or liability that accesses an
insurance policy ("Insured Claim") shall not exceed the coverage limits then
available under the insurance policies described at Section 11.2 above. All
insurance policies provided pursuant to this Agreement shall provide "industry
standard" insured coverages for liability and loss.


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<PAGE>

11.10.2 COMPLETION GUARANTEE Notwithstanding anything to the contrary in this
Agreement (including Section 11.10.1), Design-Builder hereby agrees to complete
the Work in all material respects in accordance with the terms of the Contract
Documents per the Scope of Services as provided in Exhibit D. If and to the
extent that Design-Builder fails to complete the Work with the terms and
conditions contained herein, then Design-Builder shall be responsible for all of
Owner's costs arising out of such failure (including any re-work or cure work
necessary to remedy any such construction deficiencies) up to the amount of the
GMP as set forth in Section 3.2.1.1.

11.10.3 EFFECT OF FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT Notwithstanding
anything to the contrary contained in this Agreement, the limitations on the
liability of the parties to this Agreement contained herein shall not apply to
any loss or damage arising out of or connected to a party's fraud, gross
negligence or willful misconduct.

ARTICLE 12 - SUSPENSION AND TERMINATION OF THE AGREEMENT AND OWNER'S RIGHT TO
PERFORM DESIGN-BUILDER'S RESPONSIBILITIES

12.1     SUSPENSION BY THE OWNER FOR CONVENIENCE

12.1.1 The Owner may order the Design-Builder in writing to suspend, delay or
interrupt all or any part of the Work without cause for such period of time as
the Owner may determine to be appropriate for its convenience.

12.1.2 Adjustments caused by suspension, delay or interruption shall be made for
increases in compensation for Contract Services, the Design-Builder's Fee and/or
the Phase 1 Completion Date. No adjustment shall be made if the Design-Builder
is or otherwise would have been responsible for the suspension, delay or
interruption of the Work, or if another provision of this Agreement is applied
to render an equitable adjustment.

12.2 TERMINATION BY OWNER If the Owner terminates this Agreement, the Owner
shall pay the Design-Builder for all costs associated with the Work per Article
7.0. In addition, the Design-Builder shall be paid an amount as set forth below:

         .1 If the Owner terminates this Agreement and selects another qualified
         Design-Builder and/or Contractor with a license to conduct business
         within the state; the Owner shall pay the Design-Builder for all
         Services as set forth above and a premium of five million dollars,
         ($5,000,000.00).

         .2 The Owner shall also pay to the Design-Builder fair compensation,
         either by purchase or rental at the election of the Owner, for all
         equipment retained. The Owner shall assume and become liable for
         obligations, commitments and unsettled claims that the Design-Builder
         has previously undertaken or incurred in good faith in connection with
         the Work or as a result of the termination of this Agreement. As a
         condition of receiving the payments provided under this Article 12, the
         Design-Builder shall cooperate with the Owner by taking all steps
         necessary to accomplish the legal assignment of the Design-Builder's
         rights and benefits to the Owner, including the execution and delivery
         of required papers.

         .3 Subject to Section 6.4, the Owner shall have the right to terminate
         this Agreement if the Design-Builder fails to perform any of its
         material obligations under this Agreement (breach of contract) and such
         failure continues for 45 days after receipt of written notice from the
         Owner regarding such failure. In connection with a termination under
         this Subparagraph, the Owner shall not be required to pay the amount
         set forth in Subparagraph 12.2.1 above.

Notwithstanding anything to the contrary contained herein, nothing in this
Article shall limit any rights or remedies the Owner may have to terminate this
Agreement in the event of a material and uncured breach by the Design-Builder
hereunder that the Owner may have under applicable laws.


                                       24




<PAGE>

12.3     TERMINATION BY THE DESIGN-BUILDER

12.3.1 Upon five (5) days' written notice to the Owner, the Design-Builder may
terminate this Agreement for any of the following reasons:

         .1       if the Work has been stopped for a sixty (60) day period

                  a. under court order or order of other governmental
                  authorities having jurisdiction; or

                  b. as a result of the declaration of a national emergency or
                  other governmental act during which, through no act or fault
                  of the Design-Builder, materials are not available;

         .2       if the Work is suspended by the Owner for sixty (60)
                  consecutive days;

         .3       if the Owner fails to furnish reasonable evidence that
                  sufficient funds are available and committed for the entire
                  cost of the Project in accordance with Subparagraph 4.1.3 of
                  this Agreement.

12.3.2 If the Owner has for thirty (30) days failed to pay the Design-Builder
pursuant to Subparagraph 10.1.2, the Design-Builder may give written notice of
its intent to terminate this Agreement. If the Design-Builder does not receive
payment within five (5) days of giving written notice to the Owner, then upon
five (5) days' additional written notice to the Owner, the Design-Builder may
terminate this Agreement.

12.3.3 Upon termination by the Design-Builder in accordance with this
Subparagraph, the Design-Builder shall be entitled to recover from the Owner
payment for all Work executed and for all proven loss, cost or expense in
connection with the Work, plus all demobilization costs and reasonable damages.
In addition, the Design-Builder shall be paid an amount calculated as set forth
either in Subparagraph 12.2.1 or 12.2.2, depending on when the termination
occurs.

ARTICLE 13 - DISPUTE RESOLUTION

13.1 WORK CONTINUANCE AND PAYMENT Unless otherwise agreed in writing, the
Design-Builder shall continue the Work and maintain the approved schedules
during all dispute resolution proceedings. If the Design-Builder continues to
perform, the Owner shall continue to make payments in accordance with the
Agreement.

13.2     [RESERVED.]

13.3 DISPUTE RESOLUTION If a dispute arises out of or relates to this Agreement
or its breach, the parties shall submit the dispute to the dispute resolution
process set forth in Exhibit A to this Agreement.

13.4 MULTIPARTY PROCEEDING The parties agree that all parties necessary to
resolve a claim shall be parties to the same dispute resolution proceeding.
Appropriate provisions shall be included in all other contracts relating to the
Work to provide for the consolidation of such dispute resolution proceedings.

13.5 COST OF DISPUTE RESOLUTION The prevailing party in any dispute arising out
of or relating to this Agreement or its breach that is resolved by the dispute
resolution process set forth in Exhibit A to this Agreement shall be entitled to
recover from the other party those reasonable attorneys fees, costs and expenses
incurred by the prevailing party in connection with such dispute resolution
process after direct discussions and mediation.

13.6 LIEN RIGHTS Nothing in this Article shall limit any rights or remedies not
expressly waived by the Design-Builder which the Design-Builder may have under
lien laws.


                                       25




<PAGE>

ARTICLE 14 -MISCELLANEOUS PROVISIONS

14.1 ASSIGNMENT Neither the Owner nor the Design-Builder shall assign its
interest in this Agreement without the written consent of the other except as to
the assignment of proceeds. The terms and conditions of this Agreement shall be
binding upon both parties, their partners, successors, assigns and legal
representatives. Neither party to this Agreement shall assign the Agreement as a
whole without written consent of the other except that the Owner may assign the
Agreement to a wholly-owned subsidiary of the Owner when the Owner has fully
indemnified the Design-Builder or to any Financing Parties providing
construction financing for the Project as long as the assignment is no less
favorable to the Design-Builder than this Agreement. In the event of such
assignment, the Design-Builder shall execute all consents reasonably required by
any Financing Parties. In such event, the wholly-owned subsidiary or lender
shall assume the Owner's rights and obligations under the Contract Documents. If
either party attempts to make such an assignment, that party shall nevertheless
remain legally responsible for all obligations under the Agreement, unless
otherwise agreed by the other party.

14.2 GOVERNING LAW This Agreement shall be governed by the law in effect at the
location of the Project.

14.3 SEVERABILITY The partial or complete invalidity of any one or more
provisions of this Agreement shall not affect the validity or continuing force
and effect of any other provision.

14.4 NO WAIVER OR PERFORMANCE The failure of either party to insist, in any one
or more instances, on the performance of any of the terms, covenants or
conditions of this Agreement, or to exercise any of its rights, shall not be
construed as a waiver or relinquishment of such term, covenant, condition or
right with respect to further performance.

14.5 TITLES AND GROUPINGS The titles given to the articles of this Agreement are
for ease of reference only and shall not be relied upon or cited for any other
purpose. The grouping of the articles in this Agreement and of the Owner's
specifications under the various headings is solely for the purpose of
convenient organization and in no event shall the grouping of provisions, the
use of paragraphs or the use of headings be construed to limit or alter the
meaning of any provisions.

14.6 JOINT DRAFTING The parties to this Agreement expressly agree that this
Agreement was jointly drafted, and that both had opportunity to negotiate its
terms and to obtain the assistance of counsel in reviewing its terms prior to
execution. Therefore, this Agreement shall be construed neither against nor in
favor of either party, but shall be construed in a neutral manner.

14.7 RIGHTS AND REMEDIES The parties' rights, liabilities, responsibilities and
remedies with respect to this Agreement, whether in contract, tort, negligence
or otherwise, shall be exclusively those expressly set forth in this Agreement.

14.8 FINANCING PARTIES' REQUIREMENTS The Design-Builder acknowledges that the
Owner or an affiliate thereof may borrow certain funds from the Financing
Parties for the construction of the Project and that, as a condition to making
loans to the Owner or such affiliate, the Financing Parties may from time to
time require certain documents from, and agreements by, the Design-Builder. In
connection therewith, the Design-Builder agrees to furnish to the Financing
Parties such written information, certificates, copies of invoices and receipts,
lien waivers and other like documents as the Financing Parties may reasonably
request. Upon the request of the Financing Parties (but in connection with the
occurrence of the financial closing), the Design-Builder shall state in writing
whether or not it is satisfied with Owner's performance to that date. Without
limiting the generality of the foregoing, the Design-Builder shall execute, on
or before financial closing, a consent and a legal opinion (it being
acknowledged that such legal opinion shall address the due organization of the
Design-Builder, the due authorization, execution and delivery of this Agreement
and the enforceability of this Agreement against the Design-Builder) reasonably
satisfactory to the Design-Builder and the Financing Parties.


                                       26




<PAGE>

14.9 OTHER PROVISIONS The Design-Builder and Owner agree that it has entered
into the Original Agreement with the intent and understanding that Phase I scope
of services shall materially apply to the agreements set forth herein and,
except to the extent modified in this Agreement, in no way deletes the intent of
services previously agreed.

ARTICLE 15 -- OTHER DOCUMENTS

As defined in Subparagraph 2.4.1, the following Exhibits are a part of this
Agreement:

EXHIBIT A:        Dispute Resolution Procedures.

EXHIBIT B:        Current Time and Material Cost worksheets, as amended every
                  July.

EXHIBIT C:        Project Development Agreement between the Design-Builder and
                  Engineer, dated July 15, 2003.

EXHIBIT D:        Design-Builder's Scope of Services.

EXHIBIT E:        Phase 2 Design-Build Agreement by and between the
                  Design-Builder and the Owner.

EXHIBIT F:        [Reserved.]

EXHIBIT G:        [Reserved.]

EXHIBIT H:        [Reserved.]

EXHIBIT I:        [Reserved.]

EXHIBIT J:        Design-Builder Permits.

EXHIBIT K:        Owner Permits.

EXHIBIT L-1       Final Payment Conditional Lien Waiver.

EXHIBIT L-2       Final Payment Unconditional Lien Waiver.

EXHIBIT M         Material Items Inconsistent with Selection Criteria.


                                       27




<PAGE>

                  THIS AGREEMENT IS ENTERED INTO AS OF THE DATE FIRST SET FORTH
                  ABOVE AND BY THE AUTHORIZED INDIVIDUALS FOR THE COMPANIES
                  LISTED BELOW.


OWNER:
PACIFIC ETHANOL MADERA LLC

BY: /s/ Ryan Turner                          BY: /s/Jeffery H. Manternach
    -------------------                          -----------------------------
PRINT NAME: Ryan Turner                      PRINT NAME: Jeffery H. Manternach
PRINT TITLE: President                       PRINT TITLE: Secretary
ATTEST: Deborah Gartz


DESIGN-BUILDER:
W.M. LYLES CO.


BY: /s/ Michael A. Burson                    BY: /s/ Todd R. Sheller
    -------------------------                    -----------------------
PRINT NAME: Michael A. Burson                PRINT NAME: Todd R. Sheller
PRINT TITLE: President & CEO                 PRINT TITLE: Vice President
ATTEST: Deborah Gartz


                                       28