Exhibit 10.5.2
CHANGE ORDER NUMBER
123108AW
TO
ENGINEERING, PROCUREMENT
AND
CONSTRUCTION
SERVICES
FIXED PRICE
CONTRACT
LOCATION: AURORA,
NEBRASKA
THIS CHANGE ORDER
(“Change Order”) is
made and entered into effective as of December 31, 2008 (the
“Effective Date”) by and between Aventine Renewable
Energy - Aurora West, LLC (“Owner”) and Kiewit Energy
Company (“Kiewit”).
WHEREAS, Owner and Kiewit are
parties to that certain Engineering, Procurement and Construction
Services Fixed Price Contract dated May 31, 2007 (the
“Contract”); and
WHEREAS, pursuant to Article 6 of
the Contract, Owner provides the following as written direction to
Kiewit to make certain changes in the Work, and Kiewit by its
signature below accepts such direction.
|
|
|
Capitalized terms not defined herein
shall have the meaning set forth in the Contract.
|
|
|
|
Pursuant to Section 9.5 of the
Contract, Owner directed Kiewit to suspend the Work on the Plant as
of November 14, 2008 (the “Date of
Suspension”).
|
|
|
|
Pursuant to the terms of the
Contract, Owner owes Kiewit $16,609,020 (subject to the Dispute
Resolution procedures referenced below), which amount includes
$10,528,171 not previously invoiced for the agreed progress of the
Work completed as of the Date of Suspension, $3,824,929 previously
invoiced as due and owing for Work performed in October 2008 for
which payment was deferred, and $2,255,920 for sales and use
tax. Such amount is due and owing to Kiewit as of
December 24, 2008, and may be subject to adjustment which may be
mutually agreed upon by Kiewit and Owner or determined pursuant to
the Dispute Resolution procedures set forth in Article 18 of the
Contract. Such amount shall be paid by Owner to Kiewit
in accordance with the payment schedule set forth in Section 12
below. Nothing contained in the Change Order shall be
deemed to constitute the creation of indebtedness of Owner under
any of its loan documents and the amount owing hereunder arose in
the ordinary course of business of Owner.
|
|
|
|
In addition to the amounts Owner
owes Kiewit in Section 3, the parties agree that Owner shall pay
Kiewit the following: (i) Kiewit’s costs, with no
profit or mark-up to be paid by Owner, associated with the directed
suspension of the work in the lump sum amount of $2,936,600, and
(ii) $2,000,000 as an allowance for the amounts invoiced by
Kiewit’s subcontractors and material subcontractors
(collectively the “Subcontractors”) for such
Subcontractors’ suspension costs, plus a mark-up of twenty
percent (20%) of such invoiced costs (“Subcontractors’
Suspension Costs”), which amounts, to the extent not disputed
by Owner, shall be paid by Owner to Kiewit in accordance with the
payment schedule set forth in Section 12 below. Such
amount includes payment for the
|
|
|
|
Suspension Services defined
below. Kiewit will work with Owner, and shall allow
Owner to work with Kiewit’s Subcontractors (to the extent
allowed under the terms of such subcontracts), in an effort to
reduce the Subcontractors’ Suspension
Costs. Disputes regarding the validity or amount of the
Subcontractors’ Suspension Costs claims and Kiewit invoice(s)
based thereon will be resolved pursuant to Article 18 of the
Contract.
|
|
|
|
If the total Subcontractors’
Suspension Costs exceed the allowance provided for in Section 4
above, the additional amount of Subcontractors’ Suspension
Costs in excess of the allowance shall be added to the amount owed
by Owner to Kiewit pursuant to this Change Order and shall be paid
as an additional payment on July 31, 2009 in accordance with the
provisions of Section 12 below. If the total
Subcontractors’ Suspension Costs do not exceed the allowance
provided for in Section 4 above, Kiewit will credit the difference
between the allowance and the actual Subcontractors’
Suspension Costs to the last amounts payable to Kiewit in
accordance with Section 12 of this Change Order.
|
|
|
|
Owner and Kiewit agree that the Work
may be suspended for up to 180 days from the Date of Suspension
(the “Suspension Period”). If Owner is not
in default of the payment obligations specified in this Change
Order, Owner may terminate the Suspension Period and direct Kiewit
to resume construction of the Work following the delivery to Kiewit
of (i) 10 days advance written notice to resume the Work and (ii)
reasonable evidence reasonably satisfactory to Kiewit that Owner
can satisfy the remaining financial obligations of this Change
Order and the Contract and (iii) payment in full of all remaining
amounts payable under this Change Order (without consideration of
the schedule in Section 12 below); provided, however, that nothing
in this Change Order shall be construed to limit or restrict
Kiewit’s entitlement to an equitable adjustment to the
Contract Sum arising from the suspension (including costs
associated with re-mobilization and rescheduling of the Work) and
the Schedule in connection with such suspension in accordance with
Article 6 of the Contract.
|
|
|
|
If the Suspension Period expires
without the Owner’s termination of the Suspension Period in
accordance with the terms of the Contract and this Change Order,
the Contract shall be deemed to have been terminated for the
Owner’s convenience under Section 9.4 of the Contract, and
Owner shall pay Kiewit any amounts due Kiewit under Section 9.4 of
the Contract and all remaining payments due under this Change Order
(without consideration of the schedule in Section 12
below); provided there shall be no duplication of
payments under Section 9.4 of the Contract and this Change
Order. Notwithstanding the provision contained in the
first sentence of Section 9.4, Owner may enter into a contract with
another entity to complete construction of the Plant, if Owner has
made all payments due Kiewit under Section 9.4 of the Contract and
all remaining payments due under this Change Order; provided there
shall be no duplication of payments under Section 9.4 of the
Contract and this Change Order.
|
|
|
|
During the Suspension Period, all
Contract milestone dates and Schedule deadlines are tolled and, in
the event of re-mobilization, shall be reestablished by change
order pursuant to Article 6 of the Contract; provided, however,
that in the event of such remobilization, Kiewit shall be excused
from the notice requirements contained in Sections 6.2 and 6.3 of
the Contract. The amounts set out in Sections 3, 4 and 5
above
|
|
|
|
and the rental payments or demobilization costs
for the Cranes as set forth in Section 15 below shall be the only
amounts due to Kiewit for costs associated with the Suspension
Period; provided that nothing in this sentence shall preclude
Kiewit from entitlement to a change order as set forth in Section 6
above in the event the Suspension Period is terminated.
|
|
|
|
For so long as Owner complies with
the payment provisions of this Change Order, Kiewit will provide
qualified personnel on the Plant Site to perform necessary
maintenance of equipment in accordance with equipment
manufacturer’s operation and maintenance manuals
(collectively the “Suspension Services”) during the
Suspension Period. Other than the Suspension Services,
Kiewit has no obligation during the Suspension Period to continue
performance of the Work at the Plant Site. During the
Suspension Period, Kiewit shall have no obligation to comply with
the requirements of 10.2 (Security), 11.1 (Kiewit Representatives),
11.3 (Project Reviews and Approvals) and 20.11 (Time is of the
Essence) and, except to the extent that Kiewit has previously
received payment or receives funds from the Owner in accordance
with the payment schedule set out in Section 12, Kiewit shall be
excused from any requirement under the Contract to keep the project
lien free with respect to those liens filed by Subcontractors which
represent amounts unpaid under such subcontract, or to indemnify
and/or reimburse the Owner with respect to such
liens. During the performance of the Suspension
Services, Owner shall have access to the Plant Site, but in no
event shall Owner be entitled to modify the Work completed to the
Date of Suspension nor shall Owner be entitled to operate any
equipment existing on the Plant Site without Kiewit’s prior
written consent.
|
|
