A.      Down Payment . On or before delivery of the Notice to Proceed, OWNER shall make a down payment of Ten Percent (10%) of the Contract Price to DESIGN/BUILDER, which shall be applied toward the first progress payment with any excess applied toward immediately successive progress payments thereafter.

 

              B.       Progress Payments.   OWNER shall make progress payments on account of all of the remaining balance of the Contract Price on the basis of DESIGN/BUILDER’s Applications for Payment.  Progress payments shall be due and payable in accordance with 13.04 of the General Conditions.  All such payments will be measured by the acceptable Schedule of Values established under paragraph 2.03.A of the General Conditions.  No retainage will be withheld from such payments.

 

              C.       Final Payment.   OWNER shall pay the remaining balance, if any, of the Contract Price to DESIGN/BUILDER in accordance with paragraph 13.08 of the General Conditions; provided, however, OWNER may withhold from such payment such amounts as the parties may mutually agree is the reasonable value or cost for DESIGN/BUILDER to complete all remaining or incomplete punch list items.

 

Article 5.       INTEREST.

 

5.01.        All moneys not paid by OWNER to DESIGN/BUILDER when due hereunder shall bear interest at the rate of Eighteen Percent (18%) per annum, compounded monthly, from the due date thereof.

 

Article 6.       DESIGN/BUILDER’S REPRESENTATIONS.

 

6.01.        DESIGN/BUILDER makes the following representations:

 

             A.      DESIGN/BUILDER has examined and carefully studied the Contract Documents listed in Sections 7.01.A through C (including the representations and warranties concerning the performance criteria set forth in Exhibit A), and, to the extent prepared (but not yet approved by OWNER) prior to the Effective Date, the documents described in Section 7.01.D.3 and .4.

 

             B.       DESIGN/BUILDER is familiar with and is satisfied as to all federal, state and local Laws and Regulations in existence on the Effective Date that may affect cost, progress, performance, furnishing, and completion of the Work in accordance with the Contract Documents.

 

             C.       DESIGN/BUILDER is familiar with the work to be performed by OWNER and others at the Site that relates to the Work as indicated in the Contract Documents.

 

             D.       DESIGN/BUILDER has correlated the information known to DESIGN/BUILDER, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, tests, studies and data with the Contract Documents.

 

             E.       DESIGN/BUILDER has given OWNER written notice of all conflicts, errors, ambiguities or discrepancies that DESIGN/BUILDER has discovered in the Contract Documents and the written resolution thereof by OWNER is acceptable to DESIGN/BUILDER, and the Contract Documents are sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work.

 

2

 

Article 7.       CONTRACT DOCUMENTS.

 

7.01.        The Contract Documents which comprise the entire agreement between OWNER and DESIGN/BUILDER concerning the Work consist of the following:

 

                A.    This Agreement (pages 1 to 4, inclusive).

 

                B.    Exhibits to this Agreement (A to D, inclusive).

 

                C.    General Conditions of the Contract Between Owner and Design/Builder (pages 1 to 35, inclusive).

 

                D.    The following which may be delivered, prepared, or issued after the Effective Date of this Agreement and are not attached hereto.

 

                1.     Notice to Proceed.

 

                2.     All Written Amendments and other documents amending, modifying or supplementing the Contract Documents pursuant to paragraph 3.03.A of the General Conditions.

 

                3.     Specifications as defined in paragraph 1.01.A.32 of the General Conditions.

 

                4.     Drawings as defined in paragraph 1.01.A.16 of the General Conditions.

 

7.02.        There are no Contract Documents other than those listed above in this Article 7.  The Contract Documents may only be amended, modified or supplemented as provided in paragraph 3.03.A of the General Conditions.

 

Article 8.       MISCELLANEOUS.

 

8.01.        The attached General Conditions of the Contract between Owner and Design/Builder are referred to herein as the General Conditions.

 

8.02.        Terms used in this Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated therein.

 

8.03.        No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound, which consent shall not be unreasonably withheld; 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 from any duty or responsibility under the Contract Documents.

 

8.04.        OWNER and DESIGN/BUILDER each binds itself, its successors, assigns and legal representatives to the other party hereto, its successors, assigns and legal representatives in respect to all covenants, agreements and obligations contained in the Contract Documents.

 

8.05.        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

 

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and binding upon OWNER and DESIGN/BUILDER, 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.

 

8.06.        This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one agreement that is binding upon all of the parties hereto, notwithstanding that all parties are not signatories to the same counterpart.  Facsimile signatures of the parties hereto shall be binding.

 

8.07.        This Agreement will be effective on the date first written above.  Within _____________ ( 10 ) days of such effective date, OWNER shall provide to DESIGN/BUILDER the Notice to Proceed and evidence, acceptable to DESIGN/BUILDER, of funding for the Project.

 

IN WITNESS WHEREOF, OWNER and DESIGN/BUILDER have signed this Agreement on the date first written above.

 

OWNER : Little Sioux Corn Processors, LP			DESIGN/BUILDER : ICM, Inc.
By:	/s/ Stephen G. Roe		By:	/s/ Dave Vander Griend
Title:	President		Title:	CEO

Name:___________________________

Addresses for giving notices and representatives:

 

Name:	Stephen G. Roe		Name:	Dave Vander Griend
Title:	General Manager		Title:	C.E.O.
Address:	4808 F Ave., Marcus, IA		Address:	310 N. First Street, Colwich, KS
Phone:	712-376-2815		Phone:	316-796-0900
Facsimile:	712-376-2815		Facsimile:	316-796-0570

 

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Exhibit A

to

Agreement Between Owner and Design/Builder

On the Basis of a Stipulated Price

 

Performance Criteria

 

                DESIGN/BUILDER represents and warrants to OWNER that the completed Project will satisfy the following performance criteria.  Prior to final payment under paragraph 13.08 of the General Conditions, DESIGN/BUILDER shall commission the Project and conduct a seven-day performance test to establish compliance with the following performance criteria.  Compliance shall be computed on the average over the seven-day performance test.  If the Project fails to reach such performance criterion, then DESIGN/BUILDER shall (at no additional cost to OWNER) make such changes in design, construction, or equipment as required to meet the criterion, and conduct another seven day performance test.  DESIGN/BUILDER makes no other representation, warranty or guarantee concerning the Project including, without limitation, production of DDGS or CO2, or compliance with any applicable atmospheric emissions standards.

 

Table 1 ethanol plant criteria—52 MGY capacity

Criteria	Specification	Testing Statement	Documentation
Plant Capacity—fuel-grade ethanol	Capable of operating at a rate of 52 million gallons per year of denatured fuel grade ethanol meeting the specifications of ASTM 4806 and capable of operating at a rate of 675 gallons per minute beer column feed rate.	Seven-day performance test	Concurrence of production records and a written report from DESIGN/BUILDER.

 

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Exhibit B

to

Agreement Between Owner and Design/Builder

On the Basis of a Stipulated Price

 

1.             Items Included in Scope of Work:

(a)           Develop ISO Piping Drawings

(b)           Review Permitting at Site

(c)           Revise Permitting as needed

(d)           * Install grating on top of Stillage Tanks

(e)           * Extend Concrete at Wet Feed Pad which consists of:

Design Concrete structure for walls and floor

Purchase and deliver rebar and concrete materials

Pour footings for concrete walls

Pour concrete walls

Pour extended floor

(f)            Install Expansion of RO System which consists of:

Purchase and deliver RO system components which consists of:

                6-3 array RO Filter System

                Tonkaflo high pressure pump

                RO system control package

                4 ^th multimedia filter

Iron Recovery System with 3 cone bottomed tanks, related pumps, chemical feed system, and valves & control system

Run additional piping

Run additional conduit and wires to unit

Install RO system based on US Water design

(g)           Replace Liq Pump which consists of:

Purchase and deliver Liq Pump

Install Liq Pump

Modify Suction and Discharge Piping

(h)           Replace Fermenter Spray Ball CIP Pump which consists of:

Purchase and deliver CIP Pump

Install CIP Pump

Modify Suction and Discharge Piping

(i)            Add onto Process Building MCC which consists of:

Determine electrical load requirements and availability

Purchase and deliver MCC components

Install new MCC cabinet

Install new motor starters

Run Main Power lines to motor starters

Run Conduit from MCC to cable tray network

(j)            Add onto Grain Silo MCC which consists of:

Determine electrical load requirements and availability

Purchase and deliver MCC components

 

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Install new MCC cabinet

Install new motor starters

Run Main Power lines to motor starters

                (k)           * Build Extension onto Maintenance Shop which consists of:

Design Concrete and Structural Steel for Building

Purchase and deliver Steel and Siding

Purchase and deliver culvert and rebar

Reroute Enzyme unloading line

Reroute Acid unloading line

Install culvert at ditch

Pour Concrete driveway

Pour Concrete containment area

Pour footings for steel columns

Remove Garage and Man Door from building

Install Structural Steel for building

Install Steel Siding

Install Roof on Building

Extend conduit and wires for garage door blower

Install Lights in Building

Install Heating units in building

Install Conduit/Wire/Electrical Receptacles

Run plant air and water lines

Install Garage and Man Doors on building

(l)            *Extend Process Building at Fermenters which consists of:

Design Concrete and Structural Steel for Building

Purchase and deliver Steel and Siding

Purchase and deliver rebar

Remove Garage and Man Door from building

Pour footings for steel columns

Install sump pit in floor

Pour Slab floor

Install Structural Steel for building

Install Steel Siding

Install Roof on Building

Build pipe rack for pipes to new Fermenter

Extend conduit/wires and relocate garage door blower

Install lights in extended section

Extend plant air and water hose lines

Install Garage and Man Doors on building

(m)          Install Roller Mills which consists of:

Design support structure for Roller Mills

Design Ductwork pieces

Purchase and deliver Roller Mills and related equip

Run conduit and wires for Roller Mills

Run conduit and wires for instrumentation

Build Support for Roller Mills

 

7

 

Fab new duct transition pieces

Install new duct pieces

Install Roller Mills

Complete Programming for instruments and motor control

(n)           Install New Fermenter which consists of:

Review Underground drawings

Review Soil Analysis

Design Foundation

Design Steel for access and top of tank platform

Site Work for foundation

Pour foundation for Fermenter

Build Tank on site

Install access and top of tank platform

Install Fermenter Agitator

Purchase and deliver Fermenter Agitator

Purchase and deliver CIP Spray Balls

Purchase and deliver CO2 Pressure/Vac Relief

Purchase and deliver Level Transmitter

Purchase and deliver (2) Temperature Transmitters

Purchase and deliver Fermenter Cooler Recir Pump

Purchase and deliver Fermenter #4 Drain Pump

Purchase and deliver Fermenter Cooler

Purchase and deliver Cooling Tower Control Valve

Purchase and deliver Chiller Water Control Valve

Purchase and deliver 12” digital valve

Purchase and deliver 3” digital valve

Purchase and deliver 6” digital valve

Build New CO2 Header

Build new vent lines from fermenters

Build CIP line to top of new Fermenter

Install Fermenter #4 Drain Pump

Run Supply line to Drain Pump

Run Discharge line from Drain Pump

Run Conduit and wires to Fermenter Drain Pump

Run Conduit and wires to Drain Pump Flow Transmitter

Run Conduit and wires to EV Valves

Pour slab foundation for Recirc Pump

Install Fermenter Cooler Recirc Pump

Pour slab foundation for Fermenter Cooler

Set new Fermenter Cooler

Run Cooling water lines to/from Cooler

Run Beer Supply line to Cooler

Run Conduit and wires to Fermenter Recirc Pump

Run Conduit and wires to Fermenter Agitator

Run Conduit and wires to instrumentation

Run Ferm #4 to Beer Well line

 

8

 

Run Supply line to Fermenter Recirc Pump

Run new Ferm Feed line to #4 Ferm

Run CIP line to Fermenter #4 Ferm Feed line

Make Tie in on transfer to Beer Well line

Make Tie in on CIP Line

Make Tie in on Cooling supply/return lines

Make Tie in on Chilled Water line

Make tie in on Fermenter Feed line

Complete Programming for instruments and motor control

(o)           Install CO2 Booster Fan which consists of:

Purchase and deliver Booster Fan

Purchase and deliver Pressure Transmitter

Design Platform

Build and Install Platform

Set Fan onto Platform

Build CO2 Supply to fan

Build Fan discharge ductwork

Run conduit and wires to Pressure Transmitter

Run conduit and wires to Booster Fan

Make Tie ins on CO2 line

Complete Programming for instruments and motor control

                (p)           Install Slurry Tank which consists of:

Review Underground drawings

Review Soil Analysis

Design Foundation

Design Steel for ladder and top of tank platform

Site work for Slurry Tank foundation

Pour foundation for new Slurry Tank

Pour Slab foundation for Slurry Pump

Build Slurry Tank on site

Install ladder and top of tank platform

Purchase and deliver Slurry Tank Agitator

Purchase and deliver Slurry Tank Pump

Purchase and deliver Level Transmitter

Purchase and deliver Level Control Valve

Purchase and deliver steam eductors

Purchase and deliver Temp Transmitter

Purchase and deliver Temp Control Valve

Set Slurry Tank #2 pump

Run conduit and wires for Slurry Tank Pump

Run conduit and wires for Slurry Tank Agitator

Run conduit and wires for instrumentation

Run Slurry Tank #1 to #2 Transfer Pipe

Run Slurry Tank #2 vent line

Run Slurry Tank #2 discharge line

Install Steam eductors on Slurry Tank #2

 

9

 

Run Steam line to Slurry Tank #2

Make tie in on Slurry #1 Discharge

Make tie in for Slurry #2 Vent

Make tie in for Slurry #2 Discharge

Make tie in on Steam line for Tank #2 heaters

Insulate Tank and Piping

Complete Programming for instruments and motor control

                (q)           Upgrade Hydro-heater which consists of:

Purchase and deliver new hydro-heater

Install new hydro-heater

(r)            Install Liquefaction Tank which consists of:

Review Underground drawings

Review Soil Analysis

Design Foundation

                *Design Steel for ladder and top of tank platform (3 tanks)

Site work for Liq Tank foundation

Pour foundation for new Liq Tank

Fab Liq Tank at the site

*Repair existing Liq Tank

*Install ladder and top of tank platform (3 tanks)

Purchase and deliver Liq Tank Agitator

Purchase and deliver Level Transmitter

Purchase and deliver Piping and Valves

Install Liq Tank Agitator

Run conduit and wires for Liq Tank Agitator

Run conduit and wires for instrumentation

Run feed line to new Liq Tank

Run Overflow line from new Liq Tank

Make tie in on Liq Feed Line

Add port to existing Liq #1 for new overflow line

Install 10” valve into feed line to existing Liq #1

Insulate Tank and Piping

Complete Programming for instruments and motor control

Install Mole Sieve Bottles

Review Underground drawings

Review Soil Analysis

Design Foundation and Containment Dike

Design Steel for top of tank platform

Design Steel for additional Regen Condenser Support

Site work for Sieve Bottle foundation

Pour foundation for Sieve Bottles

Pour Containment Dike around Sieve Bottles

Pour slab foundation for Regen Pump

Purchase and deliver Sieve Bottles

Purchase and deliver Pressure Transmitters

Purchase and deliver Temperature Transmitters

 

10

 

Purchase and deliver Steam Flow Control Valve

Purchase and deliver Mole Feed Control Valve

Purchase and deliver Mole Feed Flow Transmitter

Purchase and deliver EV Valves

Purchase and deliver Pressure Relief Valves

Purchase and deliver Regen Condenser

Purchase and deliver Regen Eductor

Purchase and deliver additional Regen Pump

Purchase and deliver Mole Sieve Pressure Control Valve

Purchase and deliver Mole Feed Vaporizer

Purchase and deliver Structural Steel components

Purchase and deliver rebar and concrete materials

Purchase and deliver Piping and Valves

Set Bottles onto foundation

Install Beads and internal equipment into bottles

Build support for Regen Condenser

Set Regen Condenser onto support

Set Regen Pump

Run conduit and wires to Regen Pump

Build Valve Trees for feed/regen/depressure distributors

Install Valve Trees and valves onto Bottles

Run conduit and wires to valves and instrumentation

Run Regen line from Valve Trees to Regen Condenser

Run Regen Condensate line from Condenser to Regen Eductor

Run Regen Pump Supply and Discharge lines

Set new Mole Vaporizer

Run Mole Feed line to new Mole Vaporizer

Run Vapor line from Vaporizer to Valve Trees

Run Vapor Product line to Evap Inlet

Run Condensate line to Existing Condensate line

Make Tie in on Regen Tank

Make Tie in on Regen Pump Suction

Make Tie in on Mole Feed line

Make Tie in on Existing Condensate line

Make Tie in on Evap Inlet

Make Tie in on Steam supply to vaporizer

Insulate Bottles, Vaporizer and Piping

Complete Programming for instruments and motor control

 

2.             The above items marked with an asterisk (*) are not included in the $4,600,000 portion of the Contract Price.  DESIGN/BUILDER will perform those items for an amount determined pursuant to paragraph 10.02 of the General Conditions.  DESIGN/BUILDER’s fee for overhead and profit under paragraph 10.02.C.1 shall be fifteen percent (15%) of the costs for subcontracts, materials and equipment.  Prior to commencing work on each of those items, DESIGN/BUILDER shall provide a detailed estimate of the cost of such item to OWNER and obtain OWNER’s approval to perform such work.

 

11

 

Exhibit C

to

Agreement Between Owner and Design/Builder

On the Basis of a Stipulated Price

 

LICENSE AGREEMENT

 

THIS LICENSE AGREEMENT (this “License Agreement”) is entered into and made effective as of the 6th day of December , 2004 (“Effective Date”) by and between LSCP, L.P., an Iowa limited partnership (“OWNER”), and ICM, Inc., a Kansas corporation (“DESIGN/BUILDER”).

 

                WHEREAS, OWNER and DESIGN/BUILDER have entered into that certain Agreement Between Owner and Design/Builder on a Basis of a Stipulated Price dated December 6 , 2004 (the “Design/Build Agreement”) concerning the performance of certain work by DESIGN/BUILDER for the retrofit of OWNER’s ethanol plant currently located in or near Marcus, Iowa (the “Plant”);

 

                WHEREAS, DESIGN/BUILDER owns certain proprietary technology and information, and will be using such technology and information in performing its obligations under the Design/Build Agreement; and

 

                WHEREAS, OWNER desires to be granted a limited license to use that proprietary technology and information in connection with the design, construction and operation of the Plant, and DESIGN/BUILDE desires to grant to OWNER such limited license, all upon the terms and conditions set forth herein;

 

                NOW, THEREFORE, the parties, in consideration of the foregoing premises and the mutual promises contained herein and for other good and valuable consideration, receipt of which is hereby acknowledged, agree as follows:

 

1.             Certain Proprietary Property (as defined below) will be used in the design, construction and operation of the Plant.

 

2.             Upon OWNER’s payment in full of all amounts due and owing under the Design/Build Agreement (including any license fee set forth therein, if any), DESIGN/BUILDER grants to OWNER a perpetual limited license to use the Proprietary Property solely in connection with the design, construction and operation of the Plant, subject to the limitations provided herein.  This License may be terminated by DESIGN/BUILDER upon OWNER’s failure to cure any default by OWNER of any material duty or obligation of OWNER hereunder within thirty (30) days after written notice thereof is given by DESIGN/BUILDER.

 

3.             The Proprietary Property includes, without limitation, documents, Operating Procedures (hereinafter defined), operating methods, techniques, protocols, procedures, plans and processes, and other information relating to design, construction and operation of the Plant including the design, arrangement, configuration, and specifications of (i) the combinations of distillation, evaporation, and alcohol dehydration equipment (including, but not limited to, pumps, vessels, tanks, heat exchangers, piping, valves and associated electronic control equipment) and all documents supporting those combinations; (ii) the combination of the distillers grain drying (DGD), and heat recovery steam generation (HRSG) equipment (including, but not limited to, pumps, vessels, tanks, heat exchangers, piping and associated electronic control equipment) and all documents supporting those combinations;

 

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and (iii) the computer system, known as the distributed control system (DCS and/or PLC) (including, but not limited to, the software configuration, programming, parameters, set points, alarm points, ranges, graphical interface, and system hardware connections) and all documents supporting that system.  The “Operating Procedures” include, without limitation, the process equipment and specifications manuals, standards of quality, service protocols, data collection methods, construction specifications, training methods, engineering standards and any other information prescribed by ICM from time to time concerning the Proprietary Property and operations of the Plant.  Proprietary Property shall not include any information or materials that OWNER can demonstrate by written documentation:  (i) was lawfully in the possession of OWNER prior to disclosure by ICM; (ii) was in the public domain prior to disclosure by ICM; (iii) was disclosed to OWNER by a third party having the legal right to possess and disclose such information or materials; or (iv) after disclosure by ICM comes into the public domain through no fault of OWNER or its employees, agents, partners, officers, contractors, consultants or other representatives (hereinafter collectively referred to as “Representatives”).  Information and materials shall not be deemed to be in the public domain merely because such information is embraced by more general disclosures in the public domain, and any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain if the combination itself and its principles of operation are not in the public domain.

 

4.             Between the parties, DESIGN/BUILDER has the exclusive right and interest in and to the Proprietary Property and the goodwill associated therewith.

 

5.             OWNER will not, directly or indirectly, contest the ownership of the Proprietary Property.  Any and all modifications to the Proprietary Property by OWNER (or its Representatives) shall be the property of DESIGN/BUILDER.  OWNER shall promptly notify DESIGN/BUILDER of any such modification and OWNER agrees to assign all of its right, title and interest in such modification to DESIGN/BUILDER.

 

6.             OWNER’s use of the Proprietary Property does not give OWNER any ownership interest or other interest in or to the Proprietary Property except for the limited license granted to OWNER herein.  Nothing in this License Agreement shall be construed or interpreted as granting OWNER a license to use the Proprietary Property in connection with any expansion or enlargement of the Plant beyond the size and configuration originally contemplated in the Design/Build Agreement.

 

7.             OWNER shall pay no license fee or royalty to DESIGN/BUILDER for OWNER’s use of the Proprietary Property pursuant to the limited license granted to OWNER, other than the amounts described in paragraph 2 above.

 

8.             OWNER’s failure to materially comply with the Operating Procedures shall void all representations, warranties or guarantees concerning the performance of the Plant given by DESIGN/BUILDER, directly or indirectly, under the Design/Build Agreement or otherwise.

 

9.             OWNER may not assign the limited license granted herein, in whole or in part, without the prior written consent of DESIGN/BUILDER, which will not be unreasonably withheld or delayed.  Prior to any assignment, OWNER shall obtain from such assignee a written instrument, in form and substance reasonably acceptable to DESIGN/BUILDER, agreeing to be bound by all the terms and provisions of this License Agreement.  Any assignment of this License Agreement shall not release OWNER from (i) its duties and obligations hereunder concerning the disclosure and use of the Proprietary Property, or (ii) damages to DESIGN/BUILDER resulting from, or arising out of, a breach of such duties or obligations by OWNER or its Representatives.  DESIGN/BUILDER may assign its

 

13

 

right, title and interest in the Proprietary Property, in whole or part, subject to the limited license granted herein.

 

10.           The Proprietary Property is confidential and proprietary.  OWNER shall keep the Proprietary Property confidential and shall use all reasonable efforts to maintain the Proprietary Property as secret and confidential for the sole use of OWNER and its Representatives in the design, construction, and operation of the Plant.  OWNER shall retain all Proprietary Property at its place of business and/or the Plant.  Failure to so maintain the Proprietary Property as confidential shall entitle DESIGN/BUILDER to any damages stemming from such failure, to include without limitation, reasonable attorneys’ fees.  OWNER shall not at any time without DESIGN/BUILDER’s prior written consent, copy, duplicate, record, or otherwise reproduce the Proprietary Property, in whole or in part, for any unauthorized persons, or otherwise make the same available to any unauthorized person.  OWNER shall not disclose the Proprietary Property except to its Representatives who are directly involved with the design, construction or operation of the Plant, and even then only to such extent as is necessary and essential for such Representatives’ involvement.  OWNER shall inform such Representatives of the confidential and proprietary nature of such information.  OWNER shall make all reasonable efforts to safeguard the Proprietary Property from disclosure by its Representatives to anyone other than permitted hereby.  In the event that OWNER or its Representatives are required by law to disclose the Proprietary Property, OWNER shall provide DESIGN/BUILDER with prompt written notice of same so that DESIGN/BUILDER may seek a protective order or other appropriate remedy.  In the event that such protective order or other appropriate remedy is not obtained, OWNER or its Representatives will furnish only that portion of the Proprietary Property which in the reasonable opinion of its or their legal counsel is legally required.

 

11.           OWNER agrees to indemnify DESIGN/BUILDER for any and all damages (including, without limitation, reasonable attorneys’ fees) arising out of or resulting from any unauthorized disclosure or use of the Proprietary Property by OWNER or its Representatives.  OWNER agrees that DESIGN/BUILDER would be irreparably damaged by reason of any violation of the provisions contained herein and that any remedy at law for a breach of such provisions would be inadequate.  Therefore, DESIGN/BUILDER shall be entitled to seek injunctive or other equitable relief in a court of competent jurisdiction against OWNER or its Representatives, or both, for any breach or threatened breach of OWNER’s duties and obligations contained herein without the necessity of proving actual monetary loss or posting any bond.  It is expressly understood that the remedy described herein shall not be the exclusive remedy of DESIGN/BUILDER for any breach of such covenants, and DESIGN/BUILDER shall be entitled to seek such other relief or remedy, at law or in equity, to which it may be entitled as a consequence of any breach of such duties or obligations.

 

12.           All provisions of this License Agreement shall survive and remain in full force and effect notwithstanding any termination or expiration of the Design/Build Agreement.

 

13.           The laws of the State of Kansas and the United States of America shall govern the validity of the provisions contained herein, the construction of such provisions, and the interpretation of the rights and duties of the parties.  Any legal action brought to enforce or construe the provisions of this License Agreement shall be brought in courts located in Kansas, and the parties agree to and hereby submit to the exclusive jurisdiction of such courts and agree that they will not invoke the doctrine of forum non conveniens or other similar defenses in any such action brought in such courts.

 

14.           OWNER agrees to notify DESIGN/BUILDER promptly of any attempt by any unauthorized person to use the Proprietary Property, and of any action involving the Proprietary Property that is threatened or instituted by any person against OWNER; and if any action is so instituted against

 

14

 

OWNER, DESIGN/BUILDER is hereby authorized (but not obligated) to defend the action on OWNER’s behalf, and to take whatever other steps DESIGN/BUILDER deems necessary to defend such action and/or otherwise to protect its ownership and rights in the Proprietary Property.  Whenever OWNER learns of any infringement or threatened infringement of the Proprietary Property, OWNER shall forthwith give written notice thereof to DESIGN/BUILDER and provide DESIGN/BUILDER with all information it has acquired with respect thereto.  DESIGN/BUILDER shall determine, in its absolute discretion, whether to institute or defend such proceedings, as the case may be, with regard to each of the foregoing matters.  OWNER shall not institute any proceedings relating to the Proprietary Property, in any capacity, without the prior written consent of DESIGN/BUILDER.  In the event that DESIGN/BUILDER undertakes the defense or prosecution of any such proceedings, OWNER agrees to execute and deliver such documents and do such things, including, without limitation, being made a party to such proceedings, at DESIGN/BUILDER’s expense, as may be deemed necessary or advisable by counsel on behalf of DESIGN/BUILDER in order to assist DESIGN/BUILDER in enforcing its right, title and interest in the Proprietary Property.

15.           The provisions of the Design/Build Agreement (including without limitation, Section 16.06 of the General Condition thereto) are part of, and incorporated into, this License Agreement and this License Agreement should be interpreted consistently therewith.   Unless otherwise defined herein or unless the context otherwise requires, capitalized terms used herein shall have the meaning given to such terms in the Contract Documents.  In the event any of the provisions of this License Agreement is contrary to any provision in the Design/Build Agreement (or any other document referenced therein), the provision of this License Agreement shall supercede and have precedence over such contrary provision.  The terms and conditions of this License Agreement and the Design/Build Agreement constitute the entire agreement between the parties with respect to the subject matter hereof and supersede any prior understandings, agreements or representations by or between the parties, written or oral.

 

16.           DESIGN/BUILDER represents and warrants that OWNER’s use of the Proprietary Property in accordance with the terms of this License Agreement does not infringe any patent or other proprietary right or interest of any third party.  Subject to the limitations of liability set forth in Section 16.06 of the General Condition of the Design/Build Agreement, DESIGN/BUILDER agrees to defend, indemnify and hold harmless OWNER from and against any and all costs (including reasonable attorneys’ fees) arising out of or resulting from the actual or alleged infringement of any patent or other proprietary right or interest of a third party pertaining to OWNER’s use of the Proprietary Property.  OWNER shall promptly notify DESIGN/BUILDER upon becoming aware of such infringement claim.  DESIGN/BUILDER, in order to avoid such infringement claims, shall have the right at its expense to substitute non-infringing equipment, materials and processes so they become non-infringing, or to obtain the necessary licenses to use the infringing equipment, materials or processes provided that such substituted and modified equipment, materials or processes shall meet all the requirements and be subject to all the provisions of the Design/Build Agreement.

 

17.           This License Agreement may not be modified or amended at any time without the written consent of the parties.

 

18.           All notices, requests, demands, reports, statements or other communications (herein referred to collectively as “Notices”) required to be given hereunder or relating to this License Agreement shall be in writing and shall be deemed to have been duly given on the date of delivery if sent to such party by overnight courier service (such as DHL) at the respective address of such party set forth above.   Any party hereto may, at any time, designate a different address to which Notices shall be directed by providing written notice in the manner set forth in this paragraph.

 

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19.           In the event that any of the terms, conditions, covenants or agreements contained in this License Agreement, or the application of any thereof, shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, such term, condition, covenant or agreement shall be deemed void ab initio and shall be deemed severed from this License Agreement.  In such event, and except if such determination by a court of competent jurisdiction materially changes the rights, benefits and obligations of the parties under this License Agreement, the remaining provisions of this License Agreement shall remain unchanged unaffected and unimpaired thereby and, to the extent possible, such remaining provisions shall be construed such that the purpose of this License Agreement and the intent of the parties can be achieved in a lawful manner.

 

20.           The duties and obligations herein contained shall bind, and the benefits and advantages shall inure to, the respective successors and assigns of the parties hereto.

 

21.           The waiver by any party hereto of the breach of any term, covenant, agreement or condition herein contained shall not be deemed a waiver of any subsequent breach of the same or any other term, covenant, agreement or condition herein, nor shall any custom, practice or course of dealings arising among the parties hereto in the administration hereof be construed as a waiver or diminution of the right of any party hereto to insist upon the strict performance by any other party of the terms, covenants, agreement and conditions herein contained.

 

22.           In this License Agreement, where applicable, (i) references to the singular shall include the plural and references to the plural shall include the singular, and (ii) references to the male, female, or neuter gender shall include references to all other such genders where the context so requires.

 

IN WITNESS WHEREOF, the parties hereto have executed this License Agreement, the Effective Date of which is indicated on page 1 of this License Agreement.

 

OWNER:	DESIGN/BUILDER:
Little Sioux Corn Processors, LP	ICM, Inc.
By:  /s/ Steven G. Roe	By:  /s/  Dave Vander Griend
Title:  President	Title:  C.E.O.
Date Signed:  December 1, 2004	Date Signed:  December 6, 2004
Address for giving notices:	Address for giving notices:
	301 N First Street
	Colwich, KS  67030

 

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Exhibit D

to

Agreement Between Owner and Design/Builder

On the Basis of a Stipulated Price

 

INSURANCE

 

DESIGN/BUILDER will maintain the following coverage and limits:

 

1.             Commercial General Liability

                $1,000,000 limit per occurrence

                $2,000,000 per annual aggregate

 

2.             Commercial Auto Liability Insurance

$1,000,000 per accident

 

3.             Workers Compensation

                Statutory state coverage

                Employers Liability $1,000,000

 

4.             Umbrella (Excess) Liability

                $5,000,000 per occurrence

 

OWNER will maintain the following coverage and limits:

 

1.             Commercial General Liability

                $1,000,000 limit per occurrence

                $2,000,000 per annual aggregate

 

2.             Commercial Auto Liability Insurance

$1,000,000 per accident

 

3.             Workers Compensation

                Statutory state coverage

                Employers Liability $500,000

 

4.             Umbrella (Excess) Liability

                $5,000,000 per occurrence

 

5.             Builder’s Risk

                Limit to be not less than the contract price

 

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GENERAL CONDITIONS OF THE

CONTRACT BETWEEN

OWNER AND DESIGN/BUILDER

 

ARTICLE 1—DEFINITIONS

 

1.01       Defined Terms

 

      A.    Wherever used in these General Conditions or in the other Contract Documents the following terms have the meanings indicated which are applicable to both the singular and plural thereof:

 

                   1.        Agreement— The Agreement Between Owner and Design/Builder on the Basis of a Stipulated Price covering the Work.  Other Contract Documents are incorporated into the Agreement and made a part thereof as provided therein.

 

                   2.        Application for Payment— The form which is to be used by DESIGN/BUILDER in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents.

 

                   3.        Asbestos— Any material that contains more than one percent (1%) asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration.

 

                   4.        Bonds— Performance and payment bonds and other instruments of security.

 

                   5.        Cash Flow Projection— A schedule prepared by DESIGN/BUILDER estimating that portion of the Contract Price to be due during each month of performance.

 

                   6.        Change Order— A written order which is signed by DESIGN/BUILDER and OWNER which authorizes an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Agreement.

 

                   7.      Construction— The performing or furnishing of labor, the furnishing and incorporating of materials and equipment into the Work and the furnishing of services (other than Design Professional Services) and documents, all as required by the Contract Documents.  Construction includes the materials and equipment incorporated into the Project.

 

                   8.      Construction Subagreement— A written agreement between DESIGN/BUILDER and a construction contractor for provision of Construction.

 

                   9.      Contract Documents— The Agreement and related exhibits, the Notice to Proceed, these General Conditions, the Specifications and the Drawings together with all Change Orders, and Written Amendments, issued on or after the Effective Date of the Agreement.

 

                   10.     Contract Price— The moneys payable by OWNER to DESIGN/BUILDER for completion of the Work in accordance with the Contract Documents.

 

                   11.     Contract Times— The number of days or the dates stated in the Agreement (i) to achieve Substantial Completion, and (ii) to complete the Work so that it is ready for final payment of the Contract Price in accordance with paragraph 13.08.

 

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                   12.      defective— An adjective which when modifying the term Construction refers to Construction that is unsatisfactory, faulty or deficient, in that it does not conform to the Contract Documents, or does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents, or has been damaged prior to OWNER’s final payment.

 

                   13.      DESIGN/BUILDER— ICM, Inc., a Kansas corporation.

 

                   14.      Design Subagreement— A written agreement between DESIGN/BUILDER and a design professional for provision of Design Professional Services.

 

                   15.      Design Professional Services— Services provided by or for licensed design professionals during Construction, or operational phases of the Project, including the development of drawings, Specifications, and other design submittals specified by the Contract Documents and required to be performed by licensed design professionals..

 

                   16.      Drawings— Those portions of the Contract Documents prepared by or for DESIGN/BUILDER and approved by OWNER consisting of drawings, diagrams, illustrations, schedules and other data which show the scope, extent, and character of the Work.

 

                   17.      Effective Date of the Agreement— The date indicated in the Agreement on which it becomes effective, but if no such date is indicated it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver.

 

                   18.      Engineer— A duly licensed individual or entity designated by DESIGN/BUILDER to perform or furnish specified Design Professional Services in connection with the Work.

 

                   19.    Hazardous Condition— The presence at the Site of Asbestos, Hazardous Waste, PCB’s, Petroleum Products or Radioactive Materials in such quantities or circumstances that there is a danger to persons or property.

 

                   20.     Hazardous Waste— The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903).

 

                   21.     Laws and Regulations; Laws or Regulations— Any and all applicable laws, rules, regulations, ordinances, codes, permits, and orders of any and all governmental bodies, agencies, authorities and courts having jurisdiction.

 

                   22.     Liens— Charges, security interests or encumbrances upon real property or personal property.

 

                   23.    Notice to Proceed— A written notice given by OWNER to DESIGN/BUILDER fixing the date on which the Contract Times will commence to run.

 

                   24.     OWNER— The public body, or authority, individual or entity with whom DESIGN/BUILDER has entered into the Agreement and for whom the Work is to be provided.

 

                   25.      PCBs— Polychlorinated biphenyls.

 

                   26.      Petroleum— Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch

 

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                   absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non-Hazardous Wastes and crude oils.

 

                   27.      Project— The Construction to be provided under the Contract Documents as provided in paragraph 1.01 of the Agreement.

 

                   28.      Radioactive Material— Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time.

 

                   29.     Schedule of Values— A schedule prepared by DESIGN/BUILDER and acceptable to OWNER indicating that portion of the Contract Price to be paid for each major component of the Work.

 

                   30.     Site— Lands or other areas designated in the Contract Documents as being furnished by OWNER for the performance of the Construction, storage, or access.

 

                   31.     Specifications— Those portions of the Contract Documents prepared by or for DESIGN/BUILDER and approved by OWNER consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Construction and certain administrative details applicable thereto.

 

                   32.     Subcontractor— An individual or entity other than a Supplier or Engineer having a direct contract with DESIGN/BUILDER or with any other Subcontractor for the performance of a part of the Work.

 

                   33.     [not used]

 

                   34.     Substantial Completion— The time at which the Construction (or a specified part) has progressed to the point where it is sufficiently complete, in accordance with the Contract Documents, so that ethanol can be produced at the capacity of 52 million gallons per year.  The terms “substantially complete” and “substantially completed” as applied to the Construction refer to Substantial Completion of Construction.

 

                     35.     Supplier— A manufacturer, fabricator, supplier, distributor, materialman or vendor having a direct contract with DESIGN/BUILDER or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by DESIGN/BUILDER or any Subcontractor.

 

                   36.      Work— The entire completed construction or the various separately identifiable parts thereof required to be performed or furnished under the Contract Documents.  Work includes and is the result of performing or furnishing Design Professional Services and Construction required by the Contract Documents.

 

                   37.      Written Amendment— A written amendment of the Contract Documents, signed by OWNER and DESIGN/BUILDER on or after the Effective Date of the Agreement and normally dealing with the nonengineering or nontechnical rather than strictly design or construction-related aspects of the Contract Documents.

 

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ARTICLE 2—PRELIMINARY MATTERS

 

2.01     Commencement of Contract Times; Notice to Proceed

 

                A.            The Contract Times will commence to run on the day indicated in the Notice to Proceed.  A Notice to Proceed may be given at any time within the period of time set forth in Section 9.07 of the Agreement.

 

2.02     Starting the Work

 

       A.     DESIGN/BUILDER shall start to perform the Work on the date when the Contract Times commence to run.

 

2.03     Before Starting Construction

 

       A.     DESIGN/BUILDER shall submit the following for review within ten (10) days after commencement of the Contract Times:

 

                            1.      A preliminary progress schedule indicating the times (number of days or dates) for starting and completing the various stages in the design and construction of the Work;

 

                   2.     A preliminary Schedule of Values for all of the Work, which will include quantities and prices of items aggregating the Contract Price and will subdivide the Work into component parts in sufficient detail acceptable to OWNER to serve as the basis for progress payments during performance of the Work.  Such prices will include a pro rata amount of overhead and profit applicable to each item of Work; and

 

                   3.     A preliminary Cash Flow Projection.

 

      B.     Before any Work is started, DESIGN/BUILDER and OWNER shall each deliver to the other, with copies to each additional insured, certificates of insurance (and other evidence of insurance which either of them or any additional insured may reasonably request) which DESIGN/BUILDER and OWNER respectively are required to purchase and maintain in accordance with paragraphs 5.02.A, 5.04.A and 5.04.B.

 

2.04       Initial Conference

 

      A.    Within twenty (20) days after the Contract Times start to run, a conference by telephone or in person with OWNER, DESIGN/BUILDER and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the design concepts, schedules referred to in paragraph 2.03.A, processing Applications for Payment, maintaining required records, items required pursuant to paragraph 8.01.A.6 and other matters.

 

2.05       Initially Acceptable Schedules

 

      A.    At least ten (10) days before submission of the first Application for Payment a conference by telephone or in person with DESIGN/BUILDER, OWNER and others as appropriate will be held to review for acceptability the schedules submitted in accordance with paragraph 2.03.A.  DESIGN/BUILDER shall have an additional ten (10) days to make corrections and adjustments and to complete and resubmit the schedules.  No progress payment shall be made to DESIGN/BUILDER until the schedules are submitted to and acceptable to OWNER as provided below. The progress

 

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schedule will be acceptable to OWNER as providing an orderly progression of the Work to completion within the Contract Times, but such acceptance will neither impose on OWNER responsibility for the sequencing, scheduling or progress of the Work nor interfere with or relieve DESIGN/BUILDER from DESIGN/BUILDER’s full responsibility therefor.  The format and structure of the progress schedule will be acceptable to OWNER.  OWNER’s acceptance shall not be deemed to confirm that the schedule is a reasonable plan for performing the Work.  DESIGN/BUILDER’s Schedule of Values and Cash Flow Projection will be acceptable to OWNER as to form and substance.

 

ARTICLE 3—CONTRACT DOCUMENTS:  INTENT, AMENDING, REUSE

 

3.01     Intent

 

       A.     The Contract Documents comprise the entire agreement between OWNER and DESIGN/BUILDER concerning the Work.  The Contract Documents are complementary; what is called for by one is as binding as if called for by all.  The Contract Documents will be construed in accordance with the laws of the State of Kansas.  Except as otherwise required by applicable Laws and Regulations, the Contract Documents shall govern the obligations of the parties regarding the Work and Project.

 

       B.     It is the intent of the Contract Documents to describe a functionally complete Project to be designed and constructed in accordance with the Contract Documents.  Any Work, materials or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result will be furnished and performed whether or not specifically called for.  When words or phrases which have a well-known technical or construction industry or trade meaning are used to describe work, materials or equipment, such words or phrases shall be interpreted in accordance with that meaning.

 

3.02     References

 

       A.     Reference to standards, specifications, manuals or codes of any technical society, organization or association, or to the Laws or Regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard, specification, manual, code or Laws or Regulations in effect on the Effective Date of the Agreement except as may be otherwise specifically stated in the Contract Documents.

 

      B.     No provision of any standard, specification, manual, code or instruction shall be effective to change the duties and responsibilities of OWNER, DESIGN/BUILDER or any of their subcontractors, consultants, agents, or employees from those set forth in the Contract Documents, nor shall it be effective to assign to OWNER any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of Article 8 or any other provision of the Contract Documents.

 

3.03                      Amending and Supplementing Contract Documents

 

      A.    The Contract Documents may be amended to provide for additions, deletions and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways:

 

                     1.    A Change Order; or

 

                     2.    A formal Written Amendment.

 

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3.04                       Reuse of Documents

 

         A.   All documents including Drawings and Specifications prepared or furnished by DESIGN/BUILDER pursuant to the Contract Documents are instruments of service in respect of the Project and DESIGN/BUILDER shall retain an ownership and property interest therein whether or not the Project is completed.  OWNER may make and retain copies for information and reference in connection with the use and occupancy of the Project by OWNER and others; however, such documents are not intended or represented to be suitable for reuse by OWNER or others on extensions of the Project or on any other project.  Any reuse without written verification or adaptation by DESIGN/BUILDER for the specific purpose intended will be at OWNER’s sole risk and without liability or legal exposure to DESIGN/BUILDER, and OWNER shall indemnify and hold harmless DESIGN/BUILDER, Subcontractors, and Engineer from all claims, damages, losses and expenses including attorneys’ fees arising out of or resulting therefrom.  Any such verification or adaptation will entitle DESIGN/BUILDER to further compensation at rates to be agreed upon by OWNER and DESIGN/BUILDER.

 

       B.     In addition to paragraph 3.04.A, all documents including Drawings and Specifications prepared or furnished by DESIGN/BUILDER pursuant to the Contract Documents are subject to the use and disclosure restrictions set forth in Exhibit C attached to the Agreement.  Nothing contained in paragraph 3.04.A. shall be construed or interpreted as granting OWNER any rights or interest in the PROPRIETARY PROPERTY (as defined in Exhibit C) other than as expressly provided in Exhibit C attached to the Agreement.

 

ARTICLE 4—AVAILABILITY OF LANDS; DIFFERING SITE CONDITIONS; REFERENCE POINTS; HAZARDOUS CONDITIONS

 

4.01     Availability of Lands

 

       A.     OWNER shall furnish, as indicated in the Contract Documents, the lands upon which the Construction is to be performed, rights-of-way and easements for access thereto, and such other lands which are designated for the use of DESIGN/BUILDER.

 

      B.     Upon reasonable written request, OWNER shall furnish DESIGN/BUILDER with a correct statement of record legal title and legal description of the lands upon which the Construction is to be performed and OWNER’s interest therein.  OWNER shall identify any encumbrances or restrictions not of general application but specifically related to use of lands so furnished with which DESIGN/BUILDER will have to comply in performing the Work.  Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by OWNER, unless otherwise provided in the Contract Documents.

 

      C.     OWNER shall provide any of its lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment.

 

4.02       Differing Site Conditions

 

      A.    DESIGN/BUILDER shall promptly, and before the conditions are disturbed, give a written notice to OWNER of (i) subsurface or latent physical conditions at the Site which differ materially from those indicated in the OWNER’s geotechnical report for the Project site or the land and grading specifications required by DESIGN/BUILDER, or (ii) unknown physical conditions at the Site, of an

 

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unusual nature, which differ materially from those ordinarily encountered and generally recognized as inhering in work of the character called for by the Contract Documents.

 

      B.     OWNER will investigate the site conditions promptly after receiving the notice.  If the conditions do materially so differ and cause an increase or decrease in the DESIGN/BUILDER’s cost of performing any part of the Work, an equitable adjustment shall be made under this clause and the Contract Price modified in writing by Change Order in accordance with Article 9.

 

      C.     No request by DESIGN/BUILDER for an equitable adjustment under paragraph 4.02 shall be allowed unless DESIGN/BUILDER has given the written notice required; provided that the time prescribed in paragraph 9.02.A for giving written notice may be extended by OWNER.

 

4.03       Reference Points 

 

      A.    DESIGN/BUILDER shall be responsible for laying out the construction and shall protect and preserve the reference points established by OWNER pursuant to paragraph 8.01.A.6.e and shall make no changes or relocations without the prior written approval of OWNER.  DESIGN/BUILDER shall report to OWNER whenever any reference point or property monument is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points or property monuments by professionally qualified personnel.

 

4.04     Hazardous Conditions

 

       A.     OWNER represents and warrants that there is no Hazardous Condition or materials that could create a Hazardous Condition existing at the Site as of the Effective Date of the Agreement that has not been previously disclosed in writing by OWNER to DESIGN/BUILDER and that OWNER will be responsible for any Hazardous Condition encountered at the Site which was not