Exhibit 10.9
August 14, 2002
Mark Jagels, Chairman
Oregon Trail Ethanol Coalition, LLC
Box 267
Davenport, NE 68335
Re: Project Management Proposal
Dear Chairman Jagels,
We appreciate the opportunity to provide you with a proposal for project
coordinator and consulting.
In this Agreement, Oregon Trail Ethanol Coalition, LLC, who is contracting
to receive services shall be hereinafter referred to as the "Client", and
Byrne & Company Limited who will be providing the services shall be
referred to as "the Firm".
Byrne & Company Limited has a background in Value Added Agriculture and is
willing to provide services to Oregon Trail Ethanol Coalition, LLC based on
this background.
Oregon Trail Ethanol Coalition desires to have services provided by Byrne &
Company Limited.
Therefore, the parties agree as follows:
1. DESCRIPTION OF SERVICES. The Firm will provide the following services
(collectively, the "Services"):
a. Assist in the development of a plan for an ethanol plant to
benefit the Nebraska grain farmers with final approval of the
plan by Oregon Trail Ethanol Coalition, LLC board or its
designee.
b. Assist in the organization and coordinator of the fund raising,
including government assistance, private equity, and private
lending, press relations, operating agreements, site selection,
grant writing, loan negotiations, assist in finding a management
company (if desired), assistance in the preparation of the
Private Placement Memorandum, and/or Public Offering Document and
the preparation of the final business plan.
c. Assist in working with technology providers, permitting company, legal
council, and general contractor to achieve complete and timely permitting.
2. PERFORMANCE OF SERVICES. The Firm shall determine the manner in which the
Services are to be performed and the specific hours to be worked by the
Firm. The Client will rely on the Firm to work as many hours as may be
reasonably necessary to fulfill the Firm's obligations under this
agreement.
3. COMPENSATION PAID TO THE FIRM.
a. In providing development services the fee is generally determined by
applying certain customary factors, including the following: (i) the time
and labor required and the novelty and difficulty of the project; (ii) the
likelihood that acceptance of representation of the Client will preclude
other employment by the Firm; (iii) the fee customarily charged in the
particular locality of similar length; (iv) the experience, reputation and
ability of the developer performing the services; and (v) the risk of
nonpayment of the fee in whole or in part due to the financial situation of
the Client or other factors. The Client and the Firm have considered these
factors and have agreed to the arrangements set forth in the following
subsections.
b. The Firm will record the services performed by Thomas A. Byrne at a rate of
$150 per hour, and assistants at the rate of $75 to $85 per hour (the
"Applicable Rates"), these rates are subject to change on an annual basis.
Travel time will be billed at a rate of $45 per hour. The Firm will
undertake its best efforts to provide services at the level of experience
and expertise, which will efficiently and effectively represent the
interest of the Client.
c. We offer our clients a 2% discount if they satisfy their outstanding
balance within the first 30 days of receiving their bill. Clients may be
charged up to 1.5% a month on past due balances.
d. The Client will pay the Firm promptly as billed for all costs and expenses
incurred by the Firm in connection with services provided to the Client. At
the Firm's request, the Client shall make payment promptly upon the receipt
of billings from any vendors with respect thereto.
Certain costs such as long distance charges, facsimile charges or copying
may be accounted for by the Firm as a pro-ration, in accordance with the
generally applicable policies of the Firm.
e. The Firm will provide the Clients with a detailed statement for services
rendered and cost incurred during each month. Statements will be provided
as soon as possible following the end of each month.
Byrne & Company Limited Page 2 August 14, 2002
f. The Client has the right to terminate its relationship with the Firm at any
time. In the event of such termination, the Firm will attempt to minimize
any costs or disadvantages to the Client, which would be associated with a
transition. No such termination shall discharge the obligation of the client
to pay the sums, which may be owed to the Firm pursuant hereto.
g. The Firm also reserves the right to withdraw as consultant for the Client if
it may do so under the ethical and procedural guidelines, which are
applicable to the Firm. Under normal circumstances the Firm will do so only
if, in its judgment, continued service for the Client is not in the best
interest of the Client or the Firm, is inconsistent with professional
guidelines applicable to the Firm, or if the Client knowingly provides
erroneous information to the Firm or fails to pay sums owed to the Firm when
due.
h. The Client agrees that the Firm may charge and Client will pay the
reasonable costs of copying or electronically retrieving any Client files,
papers or property which may occur subsequent to the time the Firm may
withdraw as consultant for the Client or the Client may discharge the Firm
as their consultant.
i. The Client agrees that it will pay all costs incurred by the Firm, including
reasonable attorney's fees, incurred by the Firm to collect sums owed to the
Firm pursuant hereto.
4. DISCLOSURE. The Firm is required to disclose any outside activities or
interest, including ownership or participation in the development of
projects, that conflict or may conflict with the best interests of the
Client. Prompt disclosure is required under this paragraph if the activity
or interest is related, directly or indirectly, to:
Mark Jagels, Chairman
Oregon Trail Ethanol Coalition, LLC
Box 267
Davenport, NE 68335
5. ASSIGNMENT. The Firm's obligations under this Agreement may not be assigned
or transferred to any other person, firm, or corporation without the written
consent of the Client
Byrne & Company Limited Page 3 August 14, 2002
6. NOTICES. All notices required or permitted under this Agreement shall be in
writing and shall be deemed delivered when delivered in person or deposited
in the United States mail, postage prepaid, addressed as follows:
If for Oregon trail Ethanol Coalition, LLC:
Mark Jagels, Chairman
Oregon Trail Ethanol Coalition, LLC
Box 267
Davenport, NE 68335
If for Byrne & Company Limited:
Thomas A. Byrne
PO Box 369
Preston, MN 55965
Such address may be changed from time to time for either party by providing
written notice to the other in the manner set forth above.
7. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties and there are no other promises or conditions in any other agreement
whether oral or written. This Agreement supersedes any prior written or oral
agreements between the parties.
8. AMENDMENT. This Agreement may be modified or amended if the amendment is
made in writing and is signed by both parties.
9. SEVERABILITY. If any provision of this Agreement shall be held to be invalid
or unenforceable for any reason, the remaining provisions shall continue to
be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision
it would become valid and enforceable, then such provision shall be deemed
to be written, construed, and enforced as so limited.
10. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver or limitation
of that party's right to subsequently enforce and compel strict compliance
with every provision of this Agreement.
Byrne & Company Limited Page 4 August 14, 2002
11. APPLICABLE LAW. The laws of the State of Nebraska shall govern this
Agreement.
If you agree with the above, please sign here and return the entire document to
our office at PO Box 369, Preston, MN 55965. Please retain a copy for your
records.
Party receiving services:
Oregon Trail Ethanol Coalition, LLC
By: /s/ Mark L. Jagels Chairman
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Party providing services:
Byrne & Company Limited
By: /s/ Thomas A. Byrne
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Thomas A. Byrne, President
Byrne & Company Limited Page 5 August 14, 2002