EXHIBIT 10.4
Description of Engineers Services
April 23, 2009
Primus Builders Inc. (PBI) will provide the following Scope of Services,
based on Bion PA 1 LLC (LLC) (a wholly-owned subsidiary of Bion Environmental
Technologies, Inc (Bion)) request for Preliminary Engineering Services for
its Biological Nutrient Removal Waste Treatment Facility at the Kreider Farm
in Lancaster, PA.
General Description of Project
LLC, through its designated agent, Bion Services Group, Inc. (BSG) is working
with Kreider Farms (KF) on the planning, design, construction and operation
of a biological nutrient removal waste treatment facility at the KF dairy.
The project will be designed to process waste water under three separate
waste flow and loading scenarios as follows:
Phase 1-Approximately 1,200 milk cows
Phase 2-Current herd including 1,200 milk cows plus support stock
Phase 3-Current herd plus an additional 400 milk cows
The facility will be operated under Phase l loadings for performance
monitoring and verification.
Scope Provided
Primus Builders Inc, working in collaboration with BSG and its staff and
Primus Design Services, LLC, shall to prepare and issue a Request for
Proposal Document for certain Pre-Design Tasks, and Preliminary Design work
that culminates with the preparation of a Design Basis Report, each as
described in Bion's - Kreider Farms Project Implementation Task Outline,
dated March 13, 2009.
Specific tasks Included:
1. Predesign
2. Preliminary Design
3. Permitting (cost of actual permits are not included)
Preparation of The Request for Proposal (RFP)
Qualified engineering firms will be asked to provide professional fee and
rate structures to complete the work as described in the Request for Proposal
(RFP) Document. In support of issuance of the RFP, Primus will prepare:
1. Schematic level site and building layouts
2. Schematic level process flow diagrams (PFDs)
3. Preliminary equipment list
4. Preliminary Project Schedule
5. Scope narrative with a detailed listing of the required deliverables.
Post RFP Services
Upon bid receipt, Primus will provide LLC with the following post RFP
services, the cost of which is included in this proposal:
1. Interview, review and analysis of received proposals including a written
bid summary and recommendations for final selection.
2. The costs of the engineering firm selected are not included in this order.
A change order in the amount equal to those total costs incurred by the
selected engineering firm (retained by Primus) will be issued by BSG on
behalf of LLC to Primus as necessary for Primus to complete the scope of
this assignment.
3. Supervision and management of the selected engineering firm.
4. Coordination and integration of other engineers and consultants working at
the direction of BSG.
5. Administration of the Pre-design, Preliminary Design and Design Basis
Report to achieve compliance with those reporting requirements of the
Pennsylvania Infrastructure Investment Authority (PENNVEST).
Schedule
1. The RFP will be issued on or about April 30. Contractor selection will be
on or about May 11.
2. Submit for PA DEP Water Quality Management Permit. Necessary for permit,
but not limited shall be PFD's, tank modification details (by Red Barn)
site plan, and overall project and process descriptions - June 1st, 2009.
3. Completion and presentation of Design Basis Report (DBR) - June 1, 2009.
Compensation
We have the desired team assembled and are prepared to start work
immediately.
We are pleased to offer the following lump sum fee of $40,000.00 (forty-
thousand dollars) for each step of the assignment as outlined above, plus
reimbursable expenses billed at cost (such as travel, plotting, drawing
reproduction, mailing charges, etc.).
Your authorized signature in the space provided below will allow us to
proceed with the project as outlined in this proposal.
Accepted by:
Bion PA 1, LLC
By: /s/ Jeremy Rowland Title: Chief Operating Officer
Date: May 6, 2009
This document has important legal consequences: consultation with an
attorney is encouraged with respect to its use or modification. This
document should he adapted to the particular Circumstances Of the
Contemplated Project and the Controlling Law.
SHORT FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
Prepared by
ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE
and
Issued and Published Jointly by
ACEC P/E National Society of ASCE American Society
Professional Engineers of Civil Engineers
PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE
a practice division of the
NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS
______________
AMERICAN COUNCIL OF ENGINEERING COMPANIES
______________
AMERICAN SOCIETY OF CIVIL ENGINEERS
This Agreement has been prepared for use with the Standard General Conditions
of the Construction Contract (No. C-700.2002 Edition) of the Engineers Joint
Contract Documents Committee. Their provisions are interrelated, and a
change in one may necessitate a change in the other.
SHORT FORM OF AGREEMENT
BETWEEN OWNER AND ENGINEER
FOR
PROFESSIONAL SERVICES
THIS IS AN AGREEMENT effective as of May 6, 2009 ("Effective Date") between
Bion PA I, LLC (through its operating agent Bion Services Group, LLC)
("Owner") and Primus Builders, Inc. ("Engineer"). Engineer agrees to provide
the services described below to Owner for the Kreider Farms installation
("Project"). Description of Engineer's Services: Scope as detailed in PBI's
April 29 scope of work and the Bion Environmental Technologies, Inc.'s March
13, 2009 Kreider Farms Implementation Task Outline memo.
Owner and Engineer further agree as follows:
1.01 Basic Agreement
A. Engineer shall provide, or cause to be provided, the services set
forth in this Agreement, and Owner shall pay Engineer for such Services as
set forth in Paragraph 9.01.
2.01 Payment
A. Preparation of Invoices. Engineer will prepare a monthly invoice in
accordance with Engineer's standard invoicing practices and submit the
invoice to Owner.
B. Payment of Invoices. Invoices are due and payable within 30 days of
receipt. If Owner fails to make any payment due Engineer for services and
expenses within 30 days after receipt of Engineer's invoice, the amounts due
Engineer will be increased at the rate of 1.0% per month (or the maximum rate
of interest permitted by law, if less) from said thirtieth day. In addition,
Engineer may, without liability, after giving seven days written notice to
Owner, suspend services under this Agreement until Engineer has been paid in
full all amounts due for services, expenses, and other related charges.
Payments will be credited first to interest and then to principal.
3.01 Additional Services
A. If authorized by Owner, or if required because of changes in the
Project, Engineer shall furnish services in addition to those set forth
above.
B. Owner shall pay Engineer for such additional services as follows:
For additional services of Engineer's employees engaged directly on the
Project an amount equal to the cumulative hours charged to the Project by
each class of Engineer's employees times standard hourly rates for each
applicable billing class, plus reimbursable expenses and Engineer's
consultants' charges, if any.
4.01 Termination
A. The obligation to provide further services under this Agreement may
be terminated:
1. For cause,
a. by either party upon 30 days written notice in the event of
substantial failure by the other party to perform in accordance with the
Agreement's terms through no fault of the terminating party.
b. By Engineer:
1) upon seven days written notice if Engineer believes that
Engineer is being requested by Owner to furnish or perform services contrary
to Engineer's responsibilities as a licensed professional; or
2) upon seven days written notice if the Engineer's services
for the project are delayed or suspended for more than 90 days for reasons
beyond Engineer's control.
3) Engineer shall have no liability to Owner on account of such
termination.
c. Notwithstanding the foregoing, this Agreement will not
terminate as a result of a substantial failure under paragraph 4.01.A.1.a if
the party receiving such notice begins, within seven days of receipt of such
notice, to correct its failure and proceeds diligently to cure such failure
within no more than 30 days of receipt of notice; provided, however, that if
and to the extent such substantial failure cannot be reasonably cured within
such 30 day period, and if such party has diligently attempted to cure the
same and thereafter continues diligently to cure the same, then the cure
period provided for herein shall extend up to, but in no case no more than,
60 days after the date of receipt of the notice.
2. For convenience, by Owner effective upon the receipt of notice by
Engineer.
B. The terminating party under paragraphs 4.01.A.1 or 4.01.A.2 may set
the effective date of termination at a time up to 30 days later than
otherwise provided to allow Engineer to demobilize personnel and equipment
from the Project site, to complete tasks whose value would otherwise be lost,
to prepare notes as to the status of completed and uncompleted tasks, and to
assemble Project materials in orderly files.
5.01 Controlling Law
A. This Agreement is to be governed by the law of the state in which
the Project is located.
6.01 Successors, Assigns and Beneficiaries
A. Owner and Engineer each is hereby bound and the partners,
successors, executors, administrators, and legal representatives of Owner and
Engineer (and to the extent permitted by paragraph 6.01.B the assigns of
Owner and Engineer) are hereby bound to the other party to this Agreement and
to the partners, successors, executors, administrators, and legal
representatives (and said assignees) of such other party, in respect of all
covenants, agreements, and obligations of this Agreement.
B. Neither Owner nor Engineer may assign, sublet, or transfer any
rights under or interest (including, but without limitation, moneys that are
due or may become due) in this Agreement without the written consent of the
other, except to the extent that any assignment, subletting, or transfer is
mandated or restricted by law. Unless specifically stated to the contrary in
any written consent to an assignment, no assignment will release or discharge
the assignor from any duty or responsibility under this Agreement.
7.01 General Considerations
A. The standard of care for all professional engineering and related
services performed or furnished by Engineer under this Agreement will be the
care and skill ordinarily used by members of the subject profession
practicing under similar circumstances at the same time and in the same
locality. Engineer makes no warranties, express or implied, under this
Agreement or otherwise, in connection with Engineer's services. Engineer and
its consultants may use or rely upon the design services of others,
including, but not limited to, contractors, manufacturers and suppliers.
B. Engineer shall not at any time supervise, direct, or have control
over any contractor's work, nor shall Engineer have authority over or
responsibility for the means, methods, techniques, sequences, or procedures
of construction selected or used by any contractor, for safety precautions
and programs incident to a contractor's work progress, nor for any failure of
any contractor to comply with laws and regulations applicable to contractor's
work.
C. Engineer neither guarantees the performance of any contractor nor
assumes responsibility for any contractor's failure to furnish and perform
its work in accordance with the contract between Owner and such contractor.
D. Engineer shall not be responsible for the acts or omissions of any
contractor, subcontractor, or supplier, or of any contractor's agents or
employees or any other persons (except Engineer's own employees and/or
affiliates) at the Project site or otherwise furnishing or performing any of
construction work; or for any decision made on interpretations or
clarifications of the construction contract given by Owner without
consultation and advice of Engineer.
E. The general conditions for any construction contract documents
prepared hereunder are to be the "Standard General Condition of the
Construction Contracts as prepared by the Engineers Joint Contract Documents
Committee (No. C-700, 2002 Edition).
F. All design documents prepared or furnished by Engineer are
instruments of service, and Engineer retains an ownership and property
interest (including the copyright and the right of reuse) in such documents,
whether or not the Project is completed.
G. To the fullest extent permitted by law, Owner and Engineer (1) waive
against each other, and the other's employees, officers, directors, agents,
insurers, partners, and consultants, any and all claims for or entitlement to
special, incidental, indirect, or consequential damages arising out of,
resulting from, or in any way related to the Project; and (2) agree that
Engineer's total liability to Owner under this Agreement shall be limited to
$50,000 or the total amount of compensation received by Engineer, whichever
is greater.
H. The parties acknowledge that Engineer's scope of services does not
include any services related to a Hazardous Environmental Condition (the
presence of asbestos, PCBs, petroleum, hazardous substances or waste and
radioactive materials). If Engineer or any other party encounters a
Hazardous Environmental Condition, Engineer may, at its option and without
liability for consequential or any other damages, suspend performance of
services on the on the portion of the Project affected thereby until Owner:
(i) retains appropriate specialist consultants or contractors to identify
and, as appropriate, abate, remediate, or remove the Hazardous Environmental
Condition; and (ii) warrants that the Site is in full compliance with
applicable Laws and Regulations.
8.01 Total Agreement
A. This Agreement (consisting of pages 1 to 4 inclusive together with
any expressly incorporated appendix), constitutes the entire agreement
between Owner and Engineer and supersedes all prior written or oral
understandings. This Agreement may only be amended, supplemented, modified,
or canceled by a duly executed written instrument.
9.01 Payment (Lump Sum Basis)
A. Using the procedures set forth in paragraph 2.01, Owner shall pay
Engineer as follows:
1. A Lump Sum amount of $40,000.
B. The Engineer's compensation is conditioned on the time to complete
construction not exceeding ___ months. Should the time to complete
construction be extended beyond this period, total compensation to Engineer
shall be appropriately adjusted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, the
Effective Date of which is indicated on page 1.
OWNER: Bion PA 1, LLC ENGINEER:
By: /s/ Jeremy Rowland By: /s/ Richard O'Connell
Title: Chief Operating Officer of Title: President
BSG, Owner's Designated
Agent
Date Signed: May 6, 2009 Date Signed: May 4, 2009
License or Certificate No. and
State ___________
Address for giving notices: Address for giving notices:
1035 South Gaylord Street 8294 Highway 92, Suite 210
Denver, CO 80209 Woodstock, GA 30189
Fax: 303-845-9651 Fax: 770-928-6548
Email: jrowland@biontech.com Email:roconnell@primusbuilders.com