Registration of Securities by a Small-Business Issuer — Form SB-2
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SB-2 Registration of Securities by a Small-Business HTML 590K
Issuer
2: EX-3.1 Articles of Incorporation/Organization or By-Laws 1 10K
3: EX-3.2 Articles of Incorporation/Organization or By-Laws 43 215K
4: EX-4.1 Instrument Defining the Rights of Security Holders 2 10K
5: EX-4.2 Instrument Defining the Rights of Security Holders 8 42K
6: EX-4.3 Instrument Defining the Rights of Security Holders 8 37K
7: EX-5.1 Opinion re: Legality 2 15K
8: EX-8.1 Opinion re: Tax Matters 2 15K
9: EX-10.1 Material Contract 5 24K
18: EX-10.10 Material Contract 7 32K
10: EX-10.2 Material Contract 5 24K
11: EX-10.3 Material Contract 6 27K
12: EX-10.4 Material Contract 6 26K
13: EX-10.5 Material Contract 3 15K
14: EX-10.6 Material Contract 24 79K
15: EX-10.7 Material Contract 6 27K
16: EX-10.8 Material Contract 13 53K
17: EX-10.9 Material Contract 7 32K
19: EX-23.1 Consent of Experts or Counsel 1 10K
EX-10.6 — Material Contract
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Exhibit 10.6
AGREEMENT BETWEEN
US BIO ALBERT CITY, LLC AND
TRANSYSTEMS CORPORATION
FOR PROFESSIONAL SERVICES
THIS AGREEMENT is made this 7th day of March, 2005, by and between ADVANCED
BIO ENERGY (hereafter referred to as "CLIENT") and TRANSYSTEMS CORPORATION
(hereafter referred to as "TRANSYSTEMS").
Whereas CLIENT intends to design and construct the following described
project:
PERFORM SITE VISIT, REVIEW FACILITY SPACE AND ALIGNMENT NEEDS, IDENTIFY
POTENTIAL CONCEPTS FOR TRACK LAYOUT, IDENTIFY FEASIBILITY OF EXISTING SHORT LINE
EXTENSION FOR UTILIZATION; ALL PER ATTACHED SCOPE LETTER. (hereinafter
collectively called the "Project").
Whereas CLIENT desires to engage TRANSYSTEMS to provided and perform
certain professional services in connection with the Project and TRANSYSTEMS
desires to provide and perform said professional services, all on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and their mutual
covenants hereinafter set forth, CLIENT and TRANSYSTEMS agree as follows:
SECTION 1
BASIC SERVICES OF TRANSYSTEMS
SECTION 1.1 BASIC SERVICES. In connection with the Project, TRANSYSTEMS
shall provide for CLIENT the professional services and perform, furnish or
obtain from others the work and services expressly described in, referred to and
limited to those set forth in Exhibit A, attached hereto and incorporated herein
by reference (collectively the "Basic Services"). TRANSYSTEMS shall provide the
Basic Services for CLIENT in all phases of the Project to which this Agreement
applies, all as more particularly set forth in Exhibit A.
SECTION 1.2 TRANSYSTEMS' DUTIES. In addition to the general duties,
obligations and responsibilities set forth elsewhere in this Agreement, the
specific duties and responsibilities of TRANSYSTEMS in performing the Basic
Services under this Agreement are set forth in Exhibit A. In addition to the
specific duties and responsibilities of TranSystems in performing the basic
services under this Agreement as set forth in Exhibit A, the following specific
provisions shall apply to TranSystems' duties.
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Revised January 7, 2005 1
SECTION 2
ADDITIONAL SERVICES OF TRANSYSTEMS
SECTION 2.1. ADDITIONAL SERVICES. In connection with the Project,
TRANSYSTEMS may be called on to perform, provide, furnish or obtain from others
services or work which are not part of, or are in addition to, the Basic
Services ("Additional Services"). If authorized in writing by CLIENT and agreed
to by TRANSYSTEMS, TRANSYSTEMS shall perform, provide, furnish or obtain from
others the agreed upon Additional Services. TRANSYSTEMS shall not be obligated
to perform, provide, furnish or obtain any Additional Services without the prior
written authorization of CLIENT. Except to the extent expressly provided
otherwise in Exhibit A or as otherwise agreed in writing by the parties hereto,
compensation to TRANSYSTEMS for Additional Services will be paid for by CLIENT
as indicated in Section 5.
Additional Services may be any service or work not included as part of the Basic
Services and may include, but are not limited to, services or work in connection
with environmental or funding assistance, investigations not specifically
required herein, services resulting from changes in the scope, extent or
character of the project providing renderings or computer models, services to
develop alternate bids or sequencing of work, outside CONSULTANT services not
specifically required herein, out-of-town travel, and preparing to serve or
serving as a CONSULTANT or witness in any litigation, arbitration or other legal
or administrative proceeding. "Basic Services" and "Additional Services" are
sometimes collectively referred to herein as "Services".
SECTION 2.2 CHANGES IN THE SERVICES.
SECTION 2.2.1 AGREED UPON CHANGES IN THE SERVICES. It is the desire of
the parties to keep changes in the Scope of Services at a minimum, but the
parties recognize that such changes may become necessary and agree that CLIENT
may initiate deletions, modifications or changes to the Services by advising
TRANSYSTEMS in writing of the change believed to be necessary. As soon
thereafter as practicable, TRANSYSTEMS shall prepare a cost estimate of the
change and shall inform CLIENT of the adjustment in the compensation due
TRANSYSTEMS under Section 5 hereof ("TRANSYSTEMS' Compensation") and/or the
Completion Date set forth in Section 4 hereof, if any, applicable to such
requested change. CLIENT shall then advise TRANSYSTEMS in writing of its
approval or disapproval of the change. If CLIENT approves the change, a written
contract amendment shall be executed by both parties and TRANSYSTEMS shall
perform the Services as changed and the adjustment in TRANSYSTEMS' Compensation
and/or the Completion Date set forth in the executed contract amendment shall
become effective. TRANSYSTEMS may initiate changes in the Services by advising
CLIENT in writing that in its opinion a change is necessary. If CLIENT approves,
it shall so advise TRANSYSTEMS and, thereafter, the change shall be handled as
if initiated by CLIENT. If a change is not approved, or if a written contract
amendment is not executed, by both CLIENT and TRANSYSTEMS, the change shall not
become effective and TRANSYSTEMS shall not be obligated to perform the change.
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Revised January 7, 2005 2
SECTION 2.2.2 CONSTRUCTIVE CHANGES AND OTHER ADDITIONAL COSTS. In the
event of (1) the CLIENT's addition to, modification or change of or deletion
from the Services to be performed by TRANSYSTEMS (other than additions,
modifications, changes or deletions handled through the provisions of Section
2.1 or Section 2.2.1 above); (2) a request for or approval from CLIENT of
performance of Services in excess of TRANSYSTEMS' standard work day or work week
or such shorter times as are provided by applicable collective bargaining
agreements, or on a holiday customarily observed by TRANSYSTEMS; (3) the
discovery of any subsurface or other conditions, which differ materially from
those shown in or reasonably inferable from the documents or other information
on which this Agreement is based and/or those ordinarily encountered and
generally recognized as inherent in the locality of the Project; (4) a
modification of applicable law by which TRANSYSTEMS is required to pay increased
or additional taxes, government-regulated transportation costs, insurance or
other amounts which are not required as of the date of this Agreement; (5)
delay, suspension of, acceleration of or interference with, TRANSYSTEMS'
performance of the Services by CLIENT or by any other person or entity
including, but not limited to national, state or local governments; (6) wage,
benefit or payroll tax increases due to governmental action or area agreements;
(7) modification to or delay in furnishing design criteria or other information
supplied by any person or entity, other than TRANSYSTEMS, if TRANSYSTEMS'
performance of the Services under this Agreement depends upon such criteria or
information; and/or (8) any other increase in TRANSYSTEMS' costs, or the time
required for completion of the Services due to "Force Majeure Event" as set
forth in Section 4 hereof, a change in applicable law or any other cause beyond
TRANSYSTEMS' reasonable control, then the TRANSYSTEMS' Compensation and/or the
Completion Date, if any, shall be equitably adjusted and TRANSYSTEMS shall be
paid, and TRANSYSTEMS' Compensation shall be adjusted by, an amount equal to the
additional costs to TRANSYSTEMS resulting therefrom.
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Revised January 7, 2005 3
SECTION 3
CLIENT'S RESPONSIBILITIES
Client shall do the following in a timely manner so as not to delay the
performance of the Services by TRANSYSTEMS:
SECTION 3.1 CLIENT REPRESENTATIVE. Designate a person to act as Client's
representative with respect to the Services to be rendered under this Agreement.
Such person shall have complete authority to transmit instructions, receive
information, interpret, and define CLIENT'S policies and decisions with respect
to TRANSYSTEMS' Services for the Project.
SECTION 3.2 PROJECT INFORMATION. Provide all criteria, all available
information pertinent to the Project, and full information as to CLIENT'S
requirements for the Project. CLIENT agrees that TRANSYSTEMS shall be entitled
to rely upon the accuracy and completeness of all such information.
SECTION 3.3 PROJECT ACCESS. Arrange for access to and make all
provisions for TRANSYSTEMS to enter upon public and private property as required
for TRANSYSTEMS to perform services under this Agreement. All such access shall
be provided without condition or restriction unacceptable to TRANSYSTEMS nor
shall TRANSYSTEMS be required to indemnify or insure any third party as a
condition to such access.
SECTION 3.4 CLIENT PARTICIPATION. Examine all studies, reports,
sketches, drawings, specification, proposals, and other documents presented by
TRANSYSTEMS, obtain advice of an attorney, insurance counselor and other
CONSULTANT as CLIENT deems appropriate for such examination and render in
writing decisions pertaining thereto within a reasonable time so as not to delay
the services of TRANSYSTEMS.
SECTION 3.5 NOTICES. Give prompt written notice to TRANSYSTEMS whenever
CLIENT observes or other wise becomes aware of any development that affects the
scope or timing of TRANSYSTEMS' Services, or any defect or non-conformance in
the Services by TRANSYSTEMS (or its independent professional associates or
CONSULTANTS) or in the work of any contractor or other party performing or
providing work or services in connection with the Project.
SECTION 3.6 ADDITIONAL SERVICES. When CLIENT deems it necessary or
appropriate for Additional Services to be performed in connection with any phase
of the Project, CLIENT shall furnish or direct TRANSYSTEMS to provide,
Additional Services as stipulated in Section 2 of this Agreement or other
services as required.
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Revised January 7, 2005 4
SECTION 3.7 LICENSES, PERMITS, ETC. Provide TRANSYSTEMS with any
necessary governmental allocations or priorities, obtain all permits and
licenses required to be taken out in the name of CLIENT which are necessary for
the performance of the Services and, except where such permits, processes or
licenses are by the terms of Exhibit A the responsibility of TRANSYSTEMS, obtain
any permits, processes and other licenses which are required for the Project or
the Services.
SECTION 3.8 OTHER DUTIES. Perform any other duties, obligations or
responsibilities of the CLIENT set forth elsewhere in this Agreement, including,
but not limited to, the obligation to make the payments called for under Section
5 hereof and perform any responsibilities and duties of the Client which may
identified on Exhibit B, if any.
SECTION 3.9 DEFECTS IN SERVICES. The Client shall promptly report to
TRANSYSTEMS any defects or suspected defects in TRANSYSTEMS' services of which
the Client becomes aware, so that TRANSYSTEMS may take measures to minimize the
consequences of such a defect. The Client further agrees to impose a similar
notification requirement on all contractors in its Client/Contractor contract
and shall require all subcontracts at any level to contain a like requirement.
Failure by the Client and the Client's contractors or subcontractors to notify
TRANSYSTEMS shall relieve TRANSYSTEMS of the costs of remedying the defects
above the sum such remedy would have cost had prompt notification been given
when such defects were first discovered.
SECTION 3.10 TAXES. Pay for and be responsible for all taxes incurred in
connection with the Project, regardless of whether such taxes are assessed
against CLIENT, TRANSYSTEMS or others.
SECTION 3.11 CONTRACTOR INSURANCE AND INDEMNITY REQUIREMENTS. The Client
agrees, in any construction contracts in connection with this Project, to
require all contractors of any tier to carry statutory Workers Compensation,
Employers Liability Insurance and appropriate limits of Commercial General
Liability Insurance (CGL). The Client further agrees to require all contractors
to have their CGL policies endorsed to name the Client, TRANSYSTEMS and its
subconsultants as Additional Insureds and to provide Contractual Liability
coverage sufficient to insure the hold harmless and indemnity obligations
assumed by the contractors. The Client shall require all contractors to furnish
to the Client and TRANSYSTEMS certificates of insurance as evidence of the
required insurance prior to commencing work and upon renewal of each policy
during the entire period of construction. In addition, the Client shall require
that all contractors will, to the fullest extent permitted by law, indemnify and
hold harmless the Client, TRANSYSTEMS and its subconsultants from and against
any damages, liabilities or costs, including reasonable attorneys' fees and
defense costs, arising out of or in any way connected with the Project,
including all claims by employees of the contractors.
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Revised January 7, 2005 5
SECTION 3.12 UNAUTHORIZED CHANGES. In the event the Client, the Client's
contractors or subcontractors, or anyone for whom the Client is legally liable
makes or permits to be made any changes to any reports, plans, specifications or
other construction documents prepared by TRANSYSTEMS without obtaining
TRANSYSTEMS's prior written consent, the Client shall assume full responsibility
for the results of such changes. therefore the Client agrees to waive any claim
against TRANSYSTEMS and to release TRANSYSTEMS from any liability arising
directly or indirectly from such changes.
In addition, the Client agrees, to the fullest extent permitted by law, to
indemnify and hold harmless TRANSYSTEMS from any damages, liabilities or costs,
including reasonable attorneys' fees and costs of defense, arising from such
changes.
In addition, the Client agrees to include in any contracts for construction
appropriate language that prohibits the Contractor or any subcontractors of any
tier from making any changes or modifications to TRANSYSTEMS' construction
documents without the prior written approval of TRANSYSTEMS and that further
requires the Contractor to indemnify both TRANSYSTEMS and the Client from any
liability or cost arising from such changes made without such proper
authorization.
SECTION 3.13 CONSTRUCTION MANAGEMENT. If the Client elects to employ a
construction manager, the Client will promptly notify TRANSYSTEMS of the duties,
responsibilities and authority of the construction manager and their
relationship to the duties, responsibilities and authority of TRANSYSTEMS.
If the employment of such construction manager by the Client results in
additional time or expense to TRANSYSTEMS to prepare for, coordinate with or
respond to the construction manager, TRANSYSTEMS shall be entitled to an
equitable adjustment in fees and time for performance of these services.
SECTION 3.14 COSTS. Bear all costs incident to compliance with the
requirements of this Section 3.
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Revised January 7, 2005 6
SECTION 4
PERIODS OF SERVICE, COMPLETION DATE, FORCE MAJEURE
SECTION 4.1 PERIOD OF SERVICE. The provisions of this Section 4 and the
various rates of compensation for TRANSYSTEMS' Services provided for elsewhere
in this Agreement have been agreed to in anticipation of the orderly and
continuous progress of the Project. TRANSYSTEMS' obligation to render Basic
Services hereunder will extend for a period which may reasonably be required for
the Project including any Additional Services, extra or changed work and
required extensions thereto.
SECTION 4.2 COMPLETION DATE. It is estimated, but not guaranteed, that
the Basic Services will be completed on or about 30 March 2005 (the "Completion
Date"). If the Completion Date is exceeded through no fault of TRANSYSTEMS, all
rates, measures and compensation provided herein shall be subject to equitable
adjustment. The Completion Date (and TRANSYSTEMS' obligation to complete the
Basic Services by such date) is subject to reasonable extensions for the
performance of Additional Services, Constructive Changes or other extra work and
is subject to reasonable extensions for a Force Majeure Event.
SECTION 4.3 TIMELINESS OF PERFORMANCE. The Client and TRANSYSTEMS are
aware that many factors outside TRANSYSTEMS' control may affect TRANSYSTEMS'
ability to complete the services to be provided under this Agreement.
TRANSYSTEMS will perform these services with reasonable diligence and expediency
consistent with sound professional practices.
SECTION 4.4 NOTICE OF DELAY. If TRANSYSTEMS becomes aware of delays due
to time allowances for review and approval being exceeded, delay by the
Contractor, the Client, TRANSYSTEMS or any other cause beyond the control of
TRANSYSTEMS, which will result in the schedule for performance of TRANSYSTEMS'
services not being met, TRANSYSTEMS shall promptly notify the Client. If the
Client becomes aware of any delays or other causes that will affect TRANSYSTEMS'
schedule, the Client shall promptly notify TRANSYSTEMS. In either event,
TRANSYSTEMS' schedule for performance of its services shall be equitably
adjusted.
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Revised January 7, 2005 7
SECTION 4.5 FORCE MAJEURE. For purposes hereof, a "Force Majeure Event"
shall mean the occurrence of a failure or delay due to circumstances beyond
TRANSYSTEMS' control including, without limitation, acts of God, acts of a
public enemy, fires, floods, earthquakes, wars, civil disturbances, sabotage,
accidents, insurrection, blockages, embargoes, storms, explosions, catastrophes,
epidemics, damage to the Project, lack of access to Project, unavailable
utilities and power, water, labor disputes, CLIENT's failure to timely perform
its obligations under this Agreement or other causes beyond TRANSYSTEMS'
control.
SECTION 5
TRANSYSTEMS' COMPENSATION
SECTION 5.1 COMPENSATION FOR SERVICES AND EXPENSES OF TRANSYSTEMS IN
CONNECTION WITH BASIC SERVICES
SECTION 5.1.1 FOR BASIC SERVICES. As compensation for the performance
of the Basic Services rendered by TRANSYSTEMS under Section 1, CLIENT shall pay
TRANSYSTEMS, in accordance with the provisions of Section 5.4, as follows:
SECTION 5.1.2 FOR REIMBURSABLE EXPENSES IN CONNECTION WITH BASIC
SERVICES. In addition to payments provided for in paragraph 5.1.1, CLIENT shall
pay TRANSYSTEMS for all "Reimbursable Expenses" incurred by TRANSYSTEMS in
connection with the Basic Services at the rates or in amounts set forth on
TRANSYSTEMS' Schedule of Rates and Expenses which is then in effect. For
purposes of this Agreement, "Reimbursable Expenses" are those costs and expenses
incurred by TRANSYSTEMS in connection with the performance of the Services under
this Agreement, including, but not limited to, the costs and expenses incurred
by TRANSYSTEMS for travel, reproduction, mailing costs, computer time, supplies
and materials, taxes, transportation, telephone or communications, independent
professional associates, CONSULTANTS, SUBCONSULTANTS and any other expense items
which are described on TRANSYSTEMS' Schedule of Rates and Expenses which is then
in effect.]
SECTION 5.2 COMPENSATION FOR SERVICES AND EXPENSES OF TRANSYSTEMS IN
CONNECTION WITH ADDITIONAL SERVICES
SECTION 5.2.1 FOR ADDITIONAL SERVICES. As compensation for the
performance of the Additional Services rendered by TRANSYSTEMS under Section 2,
CLIENT shall pay TRANSYSTEMS, in accordance with the provisions of Section 5.4,
as follows:
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Revised January 7, 2005 8
Additional Services of TRANSYSTEMS principals and employees engaged
directly on the Project and rendered pursuant to Section 2, on the basis of
TRANSYSTEMS' Schedule of Rates and Expenses then in effect.
SECTION 5.2.2 FOR REIMBURSABLE EXPENSES IN CONNECTION WITH ADDITIONAL
SERVICES. In addition to payments provided for in paragraph 5.2.1., CLIENT shall
pay TRANSYSTEMS for all Reimbursable Expenses incurred in connection with all
Additional Services at the rates or in amounts set forth on TRANSYSTEMS'
Schedule of Rates and Expenses in effect at the time such Additional Services
are performed.
SECTION 5.3 TRANSYSTEMS' SCHEDULE OF RATES AND EXPENSES. TRANSYSTEMS'
initial Schedule of Rates and Expenses is attached hereto as Schedule 1. The
rates and expense provisions set forth on this initial Schedule of Rates and
Expenses shall be the rates and expense provisions in effect from the date of
this Agreement until December 31 of this year. TRANSYSTEMS will revise the
Schedule of Rates and Expenses annually and will submit the revised Schedule of
Rates and Expenses to CLIENT in December of each year that this Agreement is in
effect and such revised Schedule of Rates and Expenses shall automatically
become effective with regard to this Agreement and the Services performed under
this Agreement on January 1st of the next calendar year.
SECTION 5.4 MONTHLY INVOICES. TRANSYSTEMS shall submit monthly
statements for Basic and Additional Services rendered and for Reimbursable
Expenses incurred. The statements will be based upon the amount of time spent
and costs and expenses incurred by TRANSYSTEMS during the period covered by each
such statement. CLIENT shall make prompt monthly payments in response to
TRANSYSTEMS' monthly statements.
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Revised January 7, 2005 9
SECTION 5.5 OTHER PROVISIONS CONCERNING PAYMENTS.
SECTION 5.5.1 INTEREST, SUSPENSION OF SERVICES. If CLIENT fails to
make any payment due TRANSYSTEMS for services and expenses within thirty (30)
days after receipt of TRANSYSTEMS' statement therefor, TRANSYSTEMS shall be
entitled interest on the unpaid amounts due TRANSYSTEMS at the lesser of: i) 1.5
% per month; or, ii) the highest rate of interest allowed under applicable law.
The entire unpaid balance due TRANSYSTEMS shall bear said rate of interest from
the thirtieth day after CLIENT's receipt of TRANSYSTEMS' statement, until the
entire unpaid balance has been paid to TRANSYSTEMS. In addition to being
entitled to interest, TRANSYSTEMS may, after giving seven (7) days written
notice to CLIENT, suspend services under this Agreement until TRANSYSTEMS has
been paid in full all amounts due for Services, expenses, and charges.
SECTION 5.5.2 PAYMENTS AFTER TERMINATION BY CLIENT. In the event of
termination by CLIENT under paragraph 7.1 upon the completion of any phase of
the Basic Services, payments due TRANSYSTEMS for all Services rendered and
expenses incurred through such phase shall constitute total payment for such
Basic Services. In the event of such termination by CLIENT during any phase of
the Basic Services, TRANSYSTEMS will be paid for Services rendered and expenses
incurred during that phase through the date of termination on the basis of
TRANSYSTEMS' Schedule of Rates and Expenses. In the event of any such
termination (whether at the completion of a phase or otherwise), TRANSYSTEMS
shall also be reimbursed for the charges of independent professional associates
and CONSULTANTS employed by TRANSYSTEMS to render Basic Services or Additional
Services and all reasonable demobilization costs incurred by TRANSYSTEMS,
including any cancellation charges by independent professional associates,
CONSULTANTS and others performing or furnishing Services on the Project through
TRANSYSTEMS, and TRANSYSTEMS shall be paid for all Additional Services performed
and unpaid Reimbursable Expenses incurred through the date of the termination.
SECTION 5.5.3 PAYMENTS AFTER TERMINATION BY TRANSYSTEMS. In the event
of termination by TRANSYSTEMS under paragraph 7.1, TRANSYSTEMS will be paid for
all Services rendered and expenses incurred during that phase through the date
of termination on the basis of TRANSYSTEMS' Schedule of Rates and Expenses. In
addition, TRANSYSTEMS shall also be reimbursed for the charges of independent
professional associates and CONSULTANTS employed by TRANSYSTEMS to render Basic
Services or Additional Services and all reasonable demobilization costs incurred
by TRANSYSTEMS, including any cancellation charges by independent professional
associates, CONSULTANTS and others performing or furnishing Services on the
Project through TRANSYSTEMS, and TRANSYSTEMS shall be paid for all Additional
Services performed and unpaid Reimbursable Expenses incurred through the date of
the termination.
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Revised January 7, 2005 10
SECTION 5.5.4 RECORDS. Records of TRANSYSTEMS' salary costs pertinent
to TRANSYSTEMS' compensation under this Agreement will be kept in accordance
with generally accepted accounting practices. If Client desires to have copies
of such records, copies will be made available to CLIENT upon Client's request
prior to final payment for TRANSYSTEMS' services. TRANSYSTEMS shall be
reimbursed the cost of any such copies by CLIENT.
SECTION 5.5.5 COST FACTORS. Whenever a factor is applied to salary
costs or other expenses in determining compensation payable to TRANSYSTEMS that
factor will be adjusted periodically and equitably to reflect changes in the
various elements that comprise such factor. All such adjustments will be in
accordance with generally accepted accounting practices as applied on a
consistent basis by TRANSYSTEMS and consistent with TRANSYSTEMS' overall
compensation practices and procedures.
SECTION 6
OPINIONS OF COST AND SCHEDULE
SECTION 6.1 OPINIONS OF COST AND SCHEDULE. Since TRANSYSTEMS has no
control over the cost of labor, materials, equipment or services furnished by
others, or over the resources provided by others to meet construction or other
Project schedules, or over the methods of others in determining prices, or over
competitive bidding or market conditions, TRANSYSTEMS' opinions of probable
costs (including probable Total Project Costs and Construction Cost) and of
Project schedules shall be made on the basis of TRANSYSTEMS' experience and
qualifications and represent TRANSYSTEMS' best judgment as an experienced and
qualified professional engineer, familiar with the construction industry; but
TRANSYSTEMS cannot and does not guarantee that proposals, bids or actual Project
costs (including Total Project Costs or Construction Costs) will not vary from
opinions of probable cost prepared by TRANSYSTEMS or that actual schedules will
not vary from the projected schedules prepared by TRANSYSTEMS. TRANSYSTEMS makes
no warranty, express or implied, that the bids or the negotiated cost of the
work will not vary from TranSystems' opinion of probable construction cost.
SECTION 7
GENERAL CONSIDERATIONS
SECTION 7.1 TERMINATION. The obligation to provide further services
under this Agreement may be terminated by either party upon thirty (30) days
written notice to the other party in the event of substantial failure by the
other party to perform in accordance with the terms hereof through no fault of
the terminating party.
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Revised January 7, 2005 11
SECTION 7.1.1 REPLACEMENT OF TRANSYSTEMS. If TRANSYSTEMS for any
reason is not allowed to complete all the services called for by this Agreement,
TRANSYSTEMS shall not be held responsible for the accuracy, completeness or
constructability of the construction documents prepared by TRANSYSTEMS if used,
changed or completed by the Client or by another party. Accordingly, the Client
agrees, to the fullest extent permitted by law, to indemnify and hold harmless
TRANSYSTEMS, its officers, directors, employees and subconsultants
(collectively, TRANSYSTEMS) from any damages, liabilities or costs, including
reasonable attorneys' fees and defense costs, arising or allegedly arising from
such use, change or completion by any other party of any construction documents
prepared by TRANSYSTEMS.
SECTION 7.2 REUSE OF DOCUMENTS. All documents, drawings, sketches,
studies, analysis, information, schedules, estimates, reports and other items
prepared or furnished by TRANSYSTEMS (or TRANSYSTEMS' independent professional
associates and CONSULTANTS) pursuant to this Agreement, including, but not
limited to Drawings and Specifications, are instruments of service in respect of
the Project and TRANSYSTEMS shall retain an ownership and property interest
therein whether or not the Project is completed. Provided, however, that such
documents, drawings, sketches, studies, analysis, information, schedules,
estimates, reports and other items are not intended or represented to be
suitable for reuse by CLIENT or others on extensions of the Project or on any
other project. Any reuse without written verification or adaptation by
TRANSYSTEMS for the specific purpose intended will be at CLIENT's sole risk and
without liability or legal exposure to TRANSYSTEMS, or to TRANSYSTEMS'
independent professional associates or CONSULTANTS, and CLIENT does hereby, to
the fullest extent permitted by law, indemnify and hold harmless TRANSYSTEMS,
TRANSYSTEMS' officers, employees and agents and TRANSYSTEMS' independent
professional associates and CONSULTANTS from all claims, suits, demands,
damages, liabilities, losses, expenses and costs, including but not limited to
reasonable attorney's fees and other costs of defense, arising out of or
resulting therefrom. The provisions of this Section 7.2 shall survive the
termination of this Agreement.
SECTION 7.3 DELIVERY OF ELECTRONIC FILES. In the event that Client
requests any electronic deliverables under this agreement, TRANSYSTEMS and
Client shall execute a separate CADD agreement. Otherwise, in accepting and
utilizing any drawings, reports and data on any form of electronic media
generated and furnished by TRANSYSTEMS, the Client agrees that all such
electronic files are instruments of service of TRANSYSTEMS, who shall be deemed
the author, and shall retain all common law, statutory law and other rights,
including copyrights.
The Client agrees not to reuse these electronic files, in whole or in part,
for any purpose other than for the Project. The Client agrees not to transfer
these electronic files to others without the prior written consent of
TRANSYSTEMS. The Client further agrees to waive all claims against TRANSYSTEMS
resulting in any way from any unauthorized changes to or reuse of the electronic
files for any other project by anyone other than TRANSYSTEMS.
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Revised January 7, 2005 12
Electronic files furnished by either party shall be subject to an
acceptance period of sixty (60) days during which the receiving party agrees to
perform appropriate acceptance tests. The party furnishing the electronic file
shall correct any discrepancies or errors detected and reported within the
acceptance period. After the acceptance period, the electronic files shall be
deemed to be accepted and neither party shall have any obligation to correct
errors or maintain electronic files.
The Client is aware that differences may exist between the electronic files
delivered and the printed hard-copy construction documents. In the event of a
conflict between the signed construction documents prepared by TRANSYSTEMS and
electronic files, the signed or sealed hard-copy construction documents shall
govern.
In addition, the Client agrees, to the fullest extent permitted by law, to
indemnify and hold harmless TRANSYSTEMS, its officers, directors, employees and
subconsultants (collectively, TRANSYSTEMS) against all damages, liabilities or
costs, including reasonable attorneys' fees and defense costs, arising from any
changes made by anyone other than TRANSYSTEMS or from any reuse of the
electronic files without the prior written consent of TRANSYSTEMS.
Under no circumstances shall delivery of electronic files for use by the
Client be deemed a sale by TRANSYSTEMS, and TRANSYSTEMS makes no warranties,
either express or implied, of merchantability and fitness for any particular
purpose. In no event shall TRANSYSTEMS be liable for indirect or consequential
damages as a result of the Client's use or reuse of the electronic files.
SECTION 7.4 STANDARD OF PRACTICE, WARRANTIES. Services performed by the
TRANSYSTEMS under this Agreement will be conducted in a manner consistent with
the level of care, diligence and skill ordinarily possessed and exercised by
members of the profession currently practicing in the same locality under
similar conditions. Except as expressly set forth above, no other
representations, expressed or implied, and no warranty or guarantee, express or
implied, is included in this Agreement, or in any document, drawing, sketch,
study, analysis, schedule, estimate, report, opinion, specification and other
item prepared or furnished by TRANSYSTEMS (or TRANSYSTEMS' independent
professional associates and TRANSYSTEMSs) pursuant to this Agreement.
SECTION 7.5 LIMITATION OF RESPONSIBILITY, JOB SITE SAFETY/TECHNIQUES.
Neither the professional activities of TRANSYSTEMS, nor the presence of
TRANSYSTEMS or its employees and subconsultants at a construction/project site,
shall relieve the General Contractor of its obligations, duties and
responsibilities including, but not limited to, construction means, methods,
sequence, techniques or procedures necessary for performing, superintending and
coordinating the Work in accordance with the contract documents and any health
or safety precautions required by any regulatory agencies. TRANSYSTEMS and its
personnel have no authority to exercise any control over any construction
contractor or its employees in connection with their work or any health or
safety programs or procedures. The Client agrees that the General Contractor
shall be solely responsible for jobsite safety, and warrants that this intent
shall be carried out in the Client's contract with the General Contractor. The
Client also agrees that the Client, TRANSYSTEMS and the
Advanced Bio Energy
Revised January 7, 2005 13
TRANSYSTEMS' subconsultants shall be indemnified by the General Contractor and
shall be made additional insureds under the General Contractor's policies of
general liability insurance. In addition, TranSystems shall not be responsible
for (i) the failure of any other project party to fulfill their respective
contractual responsibilities and obligations to client or to comply with
Federal, State or local laws, rules, regulations or codes; (ii) for the
schedules of any of the other project parties or the failure of any of the other
project parties to carry out their work in accordance with their respective
agreements. TranSystems shall not have control over or charge of and shall not
be responsible for acts or omissions of the other project parties, or their
agents or employees, or of any other persons performing portions of the work on
the project.
SECTION 7.6 INSURANCE.
SECTION 7.6.1 TRANSYSTEMS INSURANCE. TRANSYSTEMS shall maintain
throughout the duration of this Agreement insurance in the following amounts and
will, upon request of the CLIENT furnish a copy of certification thereof:
(a) Worker's Compensation and Employer's Liability
Worker's Compensation Statutory
Employer's Liability
$500,000/$500,000/$500,000
(b) Comprehensive Automobile Liability
$1,000,000 combined single limit Bodily Injury and Property
Damage
(c) Comprehensive General Liability
$1,000,000 - per occurrence
$2,000,000 - annual aggregate
$2,000,000 - product / completed operations per occurrence
$1,000,000 - personal injury / advertising liability
(d) Umbrella/Excess Liability
$1,000,000 - per occurrence
$1,000,000 - annual aggregate
(e) Professional Liability Insurance in an amount of $1,000,000 per
claim and annual aggregate.
Advanced Bio Energy
Revised January 7, 2005 14
SECTION 7.6.2 CLIENT INSURANCE. If, pursuant to the provisions of
Exhibit B, CLIENT is required to obtain certain insurance coverages, CLIENT
agrees to obtain and maintain throughout the duration of this Agreement (or, as
applicable, cause its contractors to obtain and maintain) such insurance in the
coverages and the amounts specified on Exhibit B. CLIENT will furnish
TRANSYSTEMS with a copy of certification of such insurance. TRANSYSTEMS'
interests shall be covered under any such insurance coverage.
SECTION 7.7 LIABILITY AND INDEMNIFICATION.
SECTION 7.7.1 GENERAL. Having considered the potential liabilities
that may exist during the performance of the Services, the benefits of the
Project, and TRANSYSTEMS' Compensation for the performance of the Services, and
in consideration of the promises contained in this Agreement, CLIENT and
TRANSYSTEMS agree to allocate and limit such liabilities in accordance with the
provisions of this Section 7.7.
SECTION 7.7.2 TRANSYSTEMS INDEMNIFICATION.
TRANSYSTEMS agrees, to the fullest extent permitted by law, to
indemnify and hold the CLIENT harmless from any damage, liability or cost
(including reasonable attorney's fees and costs of defense) to the extent caused
by TRANSYSTEMS' negligent acts, errors or omissions in the performance of
professional services under this Agreement and those of its subconsultants or
anyone for whom TRANSYSTEMS is legally liable. TRANSYSTEMS is not obligated to
indemnify the CLIENT in any manner whatsoever for the CLIENT'S own negligence.
SECTION 7.7.3 CLIENT INDEMNIFICATION. The CLIENT agrees, to the
fullest extent permitted by law, to indemnify and hold TRANSYSTEMS harmless from
any damage, liability or cost (including reasonable attorney's fees and costs of
defense) to the extent caused by the CLIENT'S negligent acts, errors or
omissions and those of its contractors, subcontractors or consultants or anyone
for whom the CLIENT is legally liable, and arising from the project that is the
subject of this Agreement. The CLIENT is not obligated to indemnify TRANSYSTEMS
in any manner whatsoever for TRANSYSTEMS' own negligence.
SECTION 7.7.4 CONTRACTORS INDEMNIFICATION. CLIENT agrees to cause each
of its other contractors on the Project to include an indemnification provision
in CLIENT's contract with each such contractor that indemnifies and holds
harmless TRANSYSTEMS and any of its officers or employees from all loss, damage,
cost or expense to the extent caused by such contractors (or its employees or
subcontractors) negligence or willful misconduct.
Advanced Bio Energy
Revised January 7, 2005 15
SECTION 7.7.5 EMPLOYEE CLAIMS. TRANSYSTEMS shall indemnify CLIENT
against any loss, damage, cost or expense arising out of claims by TRANSYSTEMS'
employees (unless such claim arises out of or as a result of the negligence of
CLIENT, its employees, agents or contractors). CLIENT shall indemnify
TRANSYSTEMS against any loss, damage, cost or expense arising out of claims by
CLIENT'S employees (unless such claim arises out of or as a result of the
negligence of TRANSYSTEMS, it's employees, agents or subcontractors).
SECTION 7.7.6 CONSEQUENTIAL DAMAGES. To the fullest extent permitted
by law, TRANSYSTEMS shall not, in any event, be liable to CLIENT for any
special, indirect, incidental or consequential damages, including, but not
limited to, damages from delay, distribution, loss of product, loss of use, loss
of profits or revenue or increased cost of operation, the cost of capital or the
cost of purchased or replacement equipment, systems or power.
SECTION 7.7.7 LIMITATION OF LIABILITY. To the fullest extent permitted
by law, TRANSYSTEMS' total liability to CLIENT for all claims, losses, damages
and expenses resulting or arising in any way from the performance of the
Services (including TRANSYSTEMS' indemnity obligations hereunder) shall not
exceed the total compensation received by TRANSYSTEMS under this Agreement or
the limits of any professional liability requirements set forth in Section
7.6.1(e) whichever is less.
SECTION 7.7.8 SURVIVAL. The terms and conditions of this Section 7.7
shall survive the termination of this Agreement and/or the completion of the
Services.
SECTION 7.7.9 BETTERMENT. If, due to TRANSYSTEMS's negligence, a
required item or component of the Project is omitted from TRANSYSTEMS's
construction documents, TRANSYSTEMS shall not be responsible for paying the cost
required to add such item or component to the extent that such item or component
would have been required and included in the original construction documents. In
no event will TRANSYSTEMS be responsible for any cost or expense that provides
betterment or upgrades or enhances the value of the Project.
Advanced Bio Energy
Revised January 7, 2005 16
SECTION 7.7.10 PROTECTION FROM SUPPLANTING CONSULTANT. In
consideration of the risks and rewards involved in this Project, the Client
agrees, to the maximum extent permitted by law, to indemnify and hold harmless
TRANSYSTEMS from any damages, liabilities or costs, including reasonable
attorneys' fees and defense costs, arising or allegedly arising from any
negligent acts, errors or omissions by any prior consultants employed by the
Client on this project and from any claims of copyright or patent infringement
by TRANSYSTEMS arising from the use of any documents prepared or provided by the
Client or any prior consultants of the Client. The Client warrants that any
documents provided to TRANSYSTEMS by the Client or by the prior consultants may
be relied upon as to their accuracy and completeness without independent
investigation by the supplanting consultant and that the Client has the right to
provide such documents to the supplanting consultant free of any claims of
copyright or patent infringement or violation of any other party's rights in
intellectual property.
SECTION 8
SPECIAL PROVISIONS, EXHIBITS AND SCHEDULES
SECTION 8.1 SPECIAL PROVISIONS. THIS AGREEMENT IS SUBJECT TO NO SPECIAL
PROVISIONS. ALL TERMS ARE IDENTIFIED IN THE CONTRACT AND THE
ATTACHED PROPOSAL LETTER.
SECTION 8.2 CONTRACT DOCUMENTS. This Agreement consists of this contract
document and the following Exhibits and Schedules, which are attached to and
made a part of this Agreement:
Exhibit A - Project Description and Basic Services
Exhibit B - TRANSYSTEMS' Schedule of Rates and Expenses
SECTION 8.3 ENTIRE AGREEMENT. This Agreement together with the Exhibits
and Schedules identified above constitute the entire agreement between CLIENT
and TRANSYSTEMS and supersede all prior written or oral understandings. This
Agreement and said Exhibits and Schedules may only be amended, supplemented,
modified, or canceled by a duly executed written instrument.
Nothing contained in this Agreement shall create a contractual relationship
with or a cause of action in favor of a third party against either the Client or
TRANSYSTEMS. TRANSYSTEMS' services under this Agreement are being performed
solely for the Client's benefit, and no other party or entity shall have any
claim against TRANSYSTEMS because of this Agreement or the performance or
nonperformance of services hereunder. The Client and TRANSYSTEMS agree to
require a similar provision in all contracts with contractors, subcontractors,
subconsultants, vendors and other entities involved in this Project to carry out
the intent of this provision.
Advanced Bio Energy
Revised January 7, 2005 17
TRANSYSTEMS shall not be required to execute any documents subsequent to
the signing of this Agreement that in any way might, in the sole judgment of
TRANSYSTEMS, increase the Consultant's contractual or legal obligations or
risks, or adversely affect the availability or cost of its professional or
general liability insurance.
SECTION 8.4 HAZARDOUS MATERIALS. Unless otherwise provided in this
Agreement, TRANSYSTEMS shall have no responsibility for the discovery, presence,
handling, removal or disposal of or exposure of persons to hazardous materials
in any form at the Project site. However, TRANSYSTEMS shall report to CLIENT the
presence and location of any hazardous material which it notices or which an
engineer of similar skill and experience should have noticed.
SECTION 8.5 ATTORNEYS FEES. In the event that either party hereto
employs an attorney to enforce any provision of this Agreement or to collect
damages for default or breach of this Agreement, or pursue claims in litigation
or arbitration, the prevailing party in any such action shall be entitled to
recover from the other such attorneys' fees and costs of collection as the
prevailing party may expend or incur with respect thereto. In the event that a
settlement is reached between the parties before a final decision in any such
litigation or arbitration, then neither party shall be entitled to recover its
attorneys fees or costs from the other and neither party shall be responsible
for the other party's attorney's fees or costs, unless otherwise agreed by the
parties.
SECTION 8.6 DISPUTES. In the event a dispute arises between TRANSYSTEMS
and CLIENT regarding the application or interpretation of any provision of this
Agreement, or quality of Services by TRANSYSTEMS, the aggrieved party shall
promptly notify the other party to this Agreement of the dispute, but in no
event more than 20 days after such dispute arises. If the parties fail to
resolve the dispute within 20 days after receipt of such notice, each party
shall, within five days thereafter, proceed to non-binding mediation, with each
party to bear its own costs and attorneys' fees (except as otherwise provided in
Section 8,5 above) and the parties shall share equally in the cost of the
mediator. In the event that the mediation is unsuccessful, the aggrieved party
may elect to litigate its dispute with the other party. All disputes shall be
governed by the laws of the State of Missouri and the jurisdiction and venue for
litigation between the parties shall be solely and exclusively in Jackson
County, Missouri, or the United States District Court for the Western District
of Missouri.
It is intended by the parties to this Agreement that TRANSYSTEMS' services
in connection with the Project shall not subject TRANSYSTEMS' individual
employees, officers or directors to any personal legal exposure for the risks
associated with this Project. Therefore, and notwithstanding anything to the
contrary contained herein, the Client agrees that as the Client's sole and
exclusive remedy, any claim, demand or suit shall be directed and/or asserted
only against TRANSYSTEMS, an interstate corporation, and not against any of
TRANSYSTEMS' individual employees, officers or directors.
Advanced Bio Energy
Revised January 7, 2005 18
SECTION 8.7 INDEPENDENT CONTRACTOR. TRANSYSTEMS shall be an independent
contractor with respect to the Services to be performed hereunder. Neither
TRANSYSTEMS, nor its independent professional associates, CONSULTANTS or
subcontractors, nor the employees of any of the foregoing, shall be deemed to be
the servants, employees or agents of CLIENT.
SECTION 8.8 REPRESENTATIONS AND REMEDIES. TRANSYSTEMS makes no
representations, covenants, warranties or guarantees, express or implied, other
than those expressly set forth herein. IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED. The parties' rights,
liabilities, responsibilities and remedies with respect to the Services, whether
in contract or otherwise, shall be exclusively those expressly set forth in this
Agreement.
SECTION 8.9 ASSIGNMENT, SUBCONTRACTORS. This Agreement shall not be
assignable by either party without the prior written consent of the other party
hereto, except that it may be assigned without such consent to the successor of
either party, or to a person, firm or corporation acquiring all or substantially
all of the business assets of such party or to a wholly owned subsidiary of
either party, but such assignment shall not relieve the assigning party of any
of its obligations under this Agreement. No assignment of this Agreement shall
be valid until this Agreement shall have been assumed by the assignee. This
Agreement shall be binding upon and shall inure to the benefit of the
TRANSYSTEMS' and CLIENT's respective successors and assigns. Nothing in this
Section 8.9 shall prevent or be deemed to prevent TRANSYSTEMS from employing,
contracting with or engaging independent professional associates, CONSULTANTS
and other subcontractors to perform or assist in the performance of the
Services.
SECTION 8.10 NOTICES. All notices or communications pertaining to this
Agreement shall be in writing and shall be sufficient when mailed or delivered
to the address specified below:
If to CLIENT:
Advanced Bio Energy
1850 Foxridge Road
Orono, MN 55356
Attn: Revis Stephenson
If to TRANSYSTEMS:
TranSystems Corporation
2400 Pershing Road, Suite 400
Kansas City, MO 64108
Attn: Tim Rock
Advanced Bio Energy
Revised January 7, 2005 19
Nothing in this Section 8.10 shall be construed to restrict the
transmission of routine communications between representatives of CLIENT and
TRANSYSTEMS.
SECTION 8.11 INTERPRETATION.
(a) This Agreement shall be governed by and interpreted in accordance with
the laws of Missouri.
(b) Headings and titles of sections, paragraphs and other subparts of this
Agreement are for convenience of reference only and shall not be considered in
interpreting the text of this Agreement. Modifications or amendments to this
Agreement must be in writing and executed by duly authorized representatives of
each party.
(c) Unless specifically stated to the contrary therein, indemnities
against, releases from and limitations on liability expressed in this Agreement
shall apply even in the event of the fault, negligence or strict liability of
the party indemnified or released or whose liability is limited and shall extend
to the officers, directors, employees, agents, licensors and related entities of
such party.
(d) In the event that any portion or all of this Agreement is held to be
void or unenforceable, the parties agree to negotiate in good faith to reach an
equitable agreement which shall effect the intent of the parties as set forth in
this Agreement.
SECTION 8.12 CERTIFICATES, GUARANTEES AND WARRANTIES. TRANSYSTEMS shall
not be required to sign any documents, no matter by whom requested, that would
result in TRANSYSTEMS having to certify, guarantee or warrant the existence of
conditions whose existence TRANSYSTEMS cannot ascertain. The Client also agrees
not to make resolution of any dispute with TRANSYSTEMS or payment of any amount
due to TRANSYSTEMS in any way contingent upon TRANSYSTEMS signing any such
certification.
As used herein, the word "certify" shall mean an expression of TRANSYSTEMS'
professional opinion to the best of its information, knowledge and belief, and
does not constitute a warranty or guarantee by TRANSYSTEMS.
SECTION 8.13 EXECUTION OF DOCUMENTS. TRANSYSTEMS shall not be required to
execute any documents subsequent to the signing of this Agreement that in any
way might, in the sole judgment of TRANSYSTEMS, increase the TRANSYSTEMS' risk
or the availability or cost of its professional or general liability insurance.
Advanced Bio Energy
Revised January 7, 2005 20
IN WITNESS WHEREOF, the parties hereto have made and executed this
Agreement as of the 5th day of MARCH 2005.
Advanced Bio Energy TranSystems Corporation
By: /s/Revis L. Stephenson, III By: /s/Timothy P. Rock
------------------------------ -------------------------------------
Printed Name: Revis L. Stephenson III Printed Name: TIMOTHY P. ROCK
----------------------- --------------------------
Title: Chairman Title: Asst. Vice President
--------------------------- ----------------------------------
Advanced Bio Energy
Revised January 7, 2005 21
EXHIBIT "A"
BASIC SERVICES
Advanced Bio Energy
Revised January 7, 2005 22
March 7, 2005
Mr. Revis Stephenson
Advanced Bio Energy
1850 Foxridge Road
Orono, MN 55356
RE: Fairmont Nebraska Ethanol Facility Engineering - Concept
Mr. Stephenson,
On February 25, 2005, TranSystems was contacted by yourself, to look at a
potential location for an Ethanol facility in Fairmont, Nebraska. It is our
understanding, per phone conversation, that it is your intent to procure the old
short line railroad (Filmore and Western) that would lead into your primary site
for an ethanol facility. Additionally, it is your intent to use the existing
Filmore and Western right-of-way to add the necessary trackage to service your
planned facility. It is also our understanding that this line is currently
serviced by the BNSF.
Since this phone call, we have prepared an aerial of the location and are
prepared to perform additional services necessary to start to develop some
concepts to service your planned facility.
At this time, we would like to have enter into contract with Advanced Bio
Energy for the initial concept phase of work associated with this Fairmont
Nebraska Ethanol facility. Upon acknowledgement of this contract and scope of
services, we are prepared to provide the following:
- Perform Site visit of location
- Perform cursory investigation into BNSF requirements and Filmore
and Western
- Exhibit with Filmore and Western right-of-way and track to
support facility
- Exhibit with other track options (as necessary)
- Cost estimates for design and construction of track.
- Identification of additional scope items necessary to pursue the
procurement of the Filmore and Western line.
The exhibits will provide a conceptual view of a track design over an aerial of
the area. The concepts drawings will be laid out to allow for a capacity that
will match your requirements and the requirements set forth by the BNSF.
To execute this work, our estimated fee based on the standard rate sheet
attached to this service agreement is $7,000.00. This fee will be based on
actual time and materials spent to perform the scope of work outlined above. I
am confident, we can provide the services required to make this a successful
project. We have standing relationships with all the Class I railroads and have
a ready and capable staff to meet your needs. We appreciate the opportunity to
work on this project for you and look forward to taking this project to the next
phase.
Respectfully Submitted,
Timothy P. Rock
Asst Vice President
TranSystems Corporation
Advanced Bio Energy
Revised January 7, 2005 23
EXHIBIT "B"
SCHEDULE OF RATES AND EXPENSES
[Download Table]
2005 HOURLY RATES
--------------------------------------------------------------------------------
PRINCIPAL/ENGINEER V $ 216
ENGINEER IV $ 159
ENGINEER III $ 114
ENGINEER II $ 93
ENGINEER I $ 78
ARCHITECT IV $ 155
ARCHITECT III $ 103
PLANNER IV $ 161
PLANNER III $ 119
PLANNER II $ 77
PLANNER I $ 67
SCIENTIST IV $ 159
SCIENTIST III $ 98
SCIENTIST II $ 77
SCIENTIST I $ 67
TECHNICIAN V $ 132
TECHNICIAN IV $ 90
TECHNICIAN III $ 76
TECHNICIAN II $ 63
TECHNICIAN I $ 54
SURVEYOR IV $ 105
SURVEYOR III $ 76
SURVEYOR II $ 55
SURVEYOR I $ 47
THREE-PERSON SURVEY CREW $ 180
TWO-PERSON SURVEY CREW $ 128
INSPECTOR V $ 162
INSPECTOR IV $ 102
INSPECTOR III $ 76
INSPECTOR II $ 63
INSPECTOR I $ 53
ADMINISTRATOR IV $ 158
ADMINISTRATOR III $ 120
ADMINISTRATOR II $ 59
ADMINISTRATOR I $ 51
CLERICAL III $ 67
CLERICAL II $ 57
CLERICAL I $ 45
SUB-CONTRACTED LABOR, MATERIAL TESTING EQUIPMENT, PRINTING AND TECHNICAL
PHOTOGRAPHY, AND ALL OTHER DIRECT JOB COSTS TO BE PAID AT COST.
VEHICLE MILEAGE TO BE PAID AT THE CURRENT IRS RATE PER MILE.
THE RATES SET FORTH ON THIS INITIAL SCHEDULE OF RATES SHALL BE THE RATES
PROVISIONS IN EFFECT FROM THE DATE OF THIS AGREEMENT UNTIL DECEMBER 31 OF THIS
YEAR. TRANSYSTEMS WILL REVISE THE SCHEDULE OF RATES ANNUALLY AND WILL SUBMIT THE
REVISED SCHEDULE OF RATES WHICH SHALL AUTOMATICALLY BECOME EFFECTIVE WITH REGARD
TO THIS AGREEMENT AND THE SERVICES PERFORMED UNDER THIS AGREEMENT ON JANUARY 1st
OF THE NEXT CALENDAR YEAR.
Advanced Bio Energy
Revised January 7, 2005 24
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘SB-2’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 5/27/05 | | | | | | | None on these Dates |
| | 3/7/05 | | 23 |
| | 2/25/05 | | 23 |
| List all Filings |
1 Subsequent Filing that References this Filing
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