exv10w3



 







Exhibit 10.3




EJCDC

STANDARD FORM OF AGREEMENT

BETWEEN OWNER AND CONTRACTOR

ON THE BASIS OF A STIPULATED PRICE



THIS AGREEMENT is by and between



E Energy Adams, LLC, 510 Main Street, Adams, Nebraska 68301

 

(hereinafter called OWNER) and



Commercial Contractors Equipment, Inc., P.O. Box 81036, Lincoln, Nebraska 68501

 

(hereinafter called CONTRACTOR).



OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as
follows:




ARTICLE 1 — WORK





	1.01	 	CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents. The
Work is generally described as follows:
	 
	 	 	Construction relating to and consisting of work associated with “Civil and Site Work Grading
Detail Design Package” as designed by Fagen, Inc., “Temporary Access Road” as designed by
Olsson Associates, and “Spur Track for Ethanol Plant” as designed by Antioch International,
Inc. The work necessary for the “Spur Track” includes mobilization, clearing and grubbing,
silt fencing and erosion control, strip and stockpile topsoil, respread topsoil from stock
pile, excavation, embankment, process under 3’ in cut for 3000 PSF bearing, subballast and
trench drain.





ARTICLE 2 — CONTRACT TIMES





	2.01	 	Time of the Essence





     A. All time limits for Milestones, if any, Substantial Completion, and completion and
readiness for final payment as stated in the Contract Documents are of the essence of the Contract.




	2.02	 	Dates for Substantial Completion and Final Payment





     A. Bidder agrees that the Work associated with the “Civil and Site Work Grading Detail Design
Package” and “Temporary Access Road” will be substantially complete on or before August 14, 2006
and ready for partial utilization in accordance with paragraph 14.05 of the General Conditions.
Bidder further aggress that all work associated with the project will be completed and ready for
final payment in accordance with paragraph 14.07 of the General Conditions on or before October 16,
2006.



Adopted from EJCDC Standard Form

Of Agreement between Owner and Contractor 0500-1




 









 






	2.03	 	Liquidated Damages





     A. CONTRACTOR and OWNER recognize that time is of the essence of this Agreement and OWNER will
suffer financial loss if the Work is not completed within the times specified in paragraph 2.02
above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions.
The parties also recognize the delays, expense and difficulties involved in proving in a legal or
arbitration proceeding the actual loss suffered by OWNER if the Work is not completed on time.
Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated
damages for delay (but not as a penalty), CONTRACTOR shall pay OWNER Two Thousand dollars
($2,000.00) for each day that expires after the time specified in paragraph 2.02 for Substantial
Completion until the Work is substantially complete. After Substantial Completion, if CONTRACTOR
shall neglect, refuse, or fail to complete the remaining Work within the Contract Time or any
proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER One Thousand dollars
($1,000.00) for each day that expires after the time specified in paragraph 2.02 for completion and
readiness for final payment until the Work is completed and ready for final payment.



ARTICLE 3 — CONTRACT PRICE



3.01 OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract
Documents an amount in current funds equal to the sum of the amounts determined pursuant to
paragraphs 3.01.A below:




     A. For all Unit Price Work, an amount equal to the sum of the established unit price for each
separately identified item of Unit Price Work times the estimated quantity of that item as
indicated in this paragraph 3.01.A:



     Awarded Contract Amount(s) based on Unit Bid prices and Estimated Quantities:


TOTAL BASE BID (Items 1A thru 16A) (See attached Revised Bid Form, pages 00300-1 to 00300-8):



Two Million Two Hundred Forty Eight Thousand Sixty Seven Dollars & 33/100
($2,248,067.33)




     As provided in paragraph 11.03 of the General Conditions, estimated quantities are not
guaranteed, and determinations of actual quantities and classifications are to be made by ENGINEER
as provided in paragraph 9.08 of the General Conditions. Unit prices have been computed as
provided in paragraph 11.03 of the General Conditions.



ARTICLE 4 — PAYMENT PROCEDURES





4.01 Submittal and Processing of Payments




Adopted from EJCDC Standard Form

Of Agreement between Owner and Contractor 0500-2





 









 








     A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the
General Conditions. Applications for Payment will be processed by ENGINEER as provided in the
General Conditions.




	4.02	 	Progress Payments; Retainage





     A. OWNER shall make progress payments on account of the Contract Price on the basis of
CONTRACTOR’s Applications for Payment on or about the 15th day of each month during
performance of the Work as provided in paragraphs 4.02.A.1 and 4.02.A.2 below. All such payments
will be measured by the schedule of values established in paragraph 2.07.A of the General
Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the
event there is no schedule of values, as provided in the General Requirements:




1. Prior to Substantial Completion, progress payments will be made in an amount equal to
the percentage indicated below but, in each case, less the aggregate of payments previously
made and less amounts as ENGINEER may determine or OWNER may withhold, in accordance with
paragraph 14.02 of the General Conditions:




	 	a.	 	90% of Work completed (with the balance being retainage).
	 
	 	b.	 	90% of cost of materials and equipment not incorporated in
the Work (with the balance being retainage).






2. Upon Substantial Completion, OWNER shall pay an amount sufficient to increase total
payments to CONTRACTOR to 95% of the Work completed, less such amounts as ENGINEER shall
determine in accordance with paragraph 14.02.B.5 of the General Conditions and less 90% of
ENGINEER’s estimate of the value of Work to be completed or corrected as shown on the
tentative list of items to be completed or corrected attached to the certificate of
Substantial Completion.




	4.03	 	Final Payment






A. Upon final completion and acceptance of the Work in accordance with paragraph 14.07 of
the General Conditions, OWNER shall pay the remainder of the Contract Price as recommended
by ENGINEER as provided in said paragraph 154.07.



ARTICLE 5 — INTEREST





5.01 Note Used.





ARTICLE 6 — CONTRACTOR’S REPRESENTATIONS




Adopted from EJCDC Standard Form

Of Agreement between Owner and Contractor 0500-3





 









 









	6.01	 	In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following
representations:





     A. CONTRACTOR has examined and carefully studied the Contract Documents and the other related
data identified in the Bidding Documents.



     B. CONTRACTOR has visited the Site and become familiar with and is satisfied as to the
general, local, and Site conditions that may affect cost, progress, and performance of the Work.



     C. CONTRACTOR is familiar with and is satisfied as to all federal, state, and local Laws and
Regulations that may affect cost, progress, and performance of the Work.



     D. CONTRACTOR does not consider that any further examinations, investigations, explorations,
tests, studies, or data are necessary for the performance of the Work at the Contract Price, within
the Contract Times, and in accordance with the other terms and conditions of the Contract
Documents.



     E. CONTRACTOR is aware of the general nature of the work to be performed by OWNER and others
at the Site that relates to the Work as indicated in the Contract Documents.



     F. CONTRACTOR has correlated the information known to CONTRACTOR, information and observations
obtained from visits to the Site, reports and drawings identified in the Contract Documents, and
all additional examinations, investigations, explorations, tets, studies, and date with the
Contract Documents.



     G. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities, or
discrepancies that CONTRACTOR has discovered in the Contract Documents, and the written resolution
thereof by ENGINEER is acceptable to CONTRACTOR.



     H. The Contract Documents are generally sufficient to indicate and convey understanding of all
terms and conditions for performance and furnishing of the Work.



ARTICLE 7 — CONTRACT DOCUMENTS





	7.01	 	Contents






	 	A.	 	The Contract Documents consist of the following:






	 	1.	 	This Agreement (pages 0500-1 to 00500-6, inclusive);
	 
	 	2.	 	Performance Bond (pages 00610-1 to 00610-2, inclusive);





Adopted from EJCDC Standard Form

Of Agreement between Owner and Contractor 0500-4









 









 












	 	3.	 	Payment Bond (pages 00620-1 to 00620-2, inclusive);
	 
	 	4.	 	General Conditions (pages 00700-1 to 00700-42, inclusive);
	 
	 	5.	 	Supplementary Conditions (pages SC-1 to SC-7, inclusive);
	 
	 	6.	 	Bid Documents as listed in the table of contents of the
Project Manual;
	 
	 	7.	 	Drawings consisting of 13 sheets with each sheet bearing the
following general title: Civil and Site Work Grading Detail Design Package.
	 
	 	 	 	Drawings consisting of 8 sheets with each sheet bearing the following
general title: Temporary Access Road.
	 
	 	 	 	Drawings consisting of 56 sheets with each sheet bearing the following
general title: Spur Track for Ethanol Plant.
	 
	 	8.	 	Addenda (numbers  1 to  3 , inclusive);
	 
	 	9.	 	Exhibits to this Agreement (enumerated as follows):






	 	a.	 	Notice of Award.
	 
	 	b.	 	Notice of Proceed.
	 
	 	c.	 	CONTRACTOR’s Bid (pages 00300-1 to 00300-8,
inclusive);
	 
	 	d.	 	Documentation submitted by CONTRACTOR prior
to Notice of Award;






	 	10.	 	The following which may be delivered or issued on or after
the Effective Date of the Agreement and are not attached hereto:






	 	a.	 	Written Amendments;
	 
	 	b.	 	Work Change Directives;
	 
	 	c.	 	Change Order(s).





     B. The documents listed in paragraph 6.01.A are attached to this Agreement (except as
expressly noted otherwise above).



     C. There are no Contract Documents other than those listed above in this Article 7.



     D. The Contract Documents may only be amended, modified, or supplemented as provided in
paragraph 3.05 of the General Conditions.



Adopted from EJCDC Standard Form

Of Agreement between Owner and Contractor 0500-5




 









 





ARTICLE 8 — MISCELLANEOUS





	8.01	 	Terms





     A. Terms used in this Agreement will have the meanings indicated in the General Conditions.




	8.02	 	Assignment of Contract





     A. No assignment by a party hereto of any rights under or interests in the Contract will be
binding on another party hereto without the written consent of the party sought to be bound; and,
specifically but without limitation, moneys that may become due and moneys that are due may not be
assigned without such consent (except to the extent that the effect of this restriction may be
limited by law), and unless specifically stated to the contrary in any written consent to an
assignment, no assignment will release or discharge the assignor for any duty or responsibility
under the Contract Documents.




	8.03	 	Successors and Assigns





     A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns, and legal
representatives to the other party hereto, its partners, successors, assigns, and legal
representatives in respect to all covenants, agreements, and obligations contained in the Contract
Documents.




	8.04	 	Severability





     A. Any provision or part of the Contract Documents held to be void or unenforceable under any
Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid
and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to
replace such stricken provision or part thereof with a valid and enforceable provision that comes
as close as possible to expressing the intention of the stricken provision.


IN WITNESS WHEREOF, OWNER, and CONTRACTOR has signed this Agreement in quadruplicate. One
counterpart each has been delivered to OWNER, CONTRACTOR, CONTRACTOR’s BONDING COMPANY and
ENGINEER. All portions of the Contract Documents have been signed, initialed or identified by
OWNER and CONTRACTOR or identified by ENGINEER on their behalf.



This Agreement will be effective on      6/26/06     , 2006 (which is the Effective Date of this
Agreement).




	 	 	 
	OWNER:

	 	CONTRACTOR:
	 
	 	 
	E Energy Adams, LLC

	 	Commercial Contractors Equipment, Inc.,
	510 Main Street

	 	P.O. Box 81036,
	 
	 	 






Adopted from EJCDC Standard Form

Of Agreement between Owner and Contractor 0500-6




 









 





	 	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 	 	 
	Adams, Nebraska 68301	 	 	 	Lincoln, Nebraska 68501	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	/s/ Jack L. Alderman
	 	 	 	By:
	/s/ Michael I.	 	 
	 

	 	 
	 	 	 	 	 	 	 
	President E Energy Adams	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Attest	 	/s/ Meredith Smith	 	 	 	Attest Lois Scholl	 	 
	 

	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Address for giving notices:	 	 	 	Address for giving notices:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	510 Main Street	 	 	 	P.O. Box 81036	 	 
	 	 	 	 	 	 	 
	Adams, NE 68301	 	 	 	Lincoln, NE 68501	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	License No.        N/A	 	 
	 

	 	 	 	 	 	 	 	 
	 	 
	 

	 	 	 	 	 	 	 	           (Where applicable)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Agent for service of process: /s/ Michael Sibbernsen	 	 
	 	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	(If CONTRACTOR is a corporation or a
Partnership, attach evidence of authority to
Sign.)	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Designated Representative:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: 
	/s/ Michael T. Sibbernsen	 	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:
	President	 	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Address: P.O. Box 81036	 	 
	 

	 	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Lincoln, NE 68501	 	 
	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Phone: 
	402-476-1711	 	 
	 

	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Facsimile: 402-476-1712