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AGREEMENT FOR CONSULTING AND PROFESSIONAL SERVICES BETWEEN GOLDEN EAGLE INTERNATIONAL, INC. AND WASHINGTON GROUP INTERNATIONAL, INC

Consulting Services Agreement

AGREEMENT FOR CONSULTING AND PROFESSIONAL SERVICES BETWEEN GOLDEN EAGLE INTERNATIONAL, INC. AND WASHINGTON GROUP INTERNATIONAL, INC | Document Parties: 7800 East Union Avenue, Suite 100, Denver CO | GOLDEN EAGLE INTERNATIONAL, INC | Washington Group International, Inc You are currently viewing:
This Consulting Services Agreement involves

7800 East Union Avenue, Suite 100, Denver CO | GOLDEN EAGLE INTERNATIONAL, INC | Washington Group International, Inc

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Title: AGREEMENT FOR CONSULTING AND PROFESSIONAL SERVICES BETWEEN GOLDEN EAGLE INTERNATIONAL, INC. AND WASHINGTON GROUP INTERNATIONAL, INC
Governing Law: New York     Date: 2/13/2007
Industry: Gold and Silver     Sector: Basic Materials

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AGREEMENT FOR CONSULTING AND PROFESSIONAL SERVICES
BETWEEN
GOLDEN EAGLE INTERNATIONAL, INC.
AND
WASHINGTON GROUP INTERNATIONAL, INC.

THIS AGREEMENT (“Agreement”) for Consulting and Professional Services, (together with the Attachments hereto) is dated and effective as of Feb 5 _____2007 (the “Effective Date”), is hereby made and entered into by and between _ Golden Eagle International., Inc. a _____ corporation, (hereinafter “Client”) having a place of business located at _ 9661 S 700 East Salt Lake City, UT 80070 , and Washington Group International, Inc., an Ohio corporation (hereinafter “Consultant”) having a place of business located at 7800 East Union Avenue, Suite 100, Denver CO 80237 (each a “Party” and collectively, the “Parties”).

For and in consideration of the mutual covenants and agreements contained herein, the Parties agree as follows:

1. SERVICES TO BE RENDERED

Consultant agrees to undertake and perform certain consulting and professional engineering services (“Services”) in accordance with the terms and conditions contained herein, as may be requested by Client from time to time.

The Services to be performed and the schedule for performance for each task shall be described in one or more letters issued to Consultant by Client, the form of which is attached hereto as Attachment A (“Work Authorization”). A Work Authorization shall be valid and binding upon the Parties only if accepted in writing by Client and Consultant.

2. PAYMENTS FOR SERVICES

In consideration for providing Services as specified in any Work Authorization issued hereunder, and unless otherwise specified in the applicable Work Authorization, the Client shall pay Consultant on a Cost Plus Pricing basis as identified and defined in the Work Authorization.

Client shall make an upfront lump sum payment to Consultant of $125,000 (“Estimated Fee”) prior to Consultant’s performance of Services. Consultant shall submit monthly progress reports to Client accounting for the drawdown from the Estimated Fee. Upon expending the Estimated Fee, Consultant shall render invoices monthly. In the event Consultant does not expend all the Estimated Fee upon completion of the Services or termination, Consultant shall reimburse Client that portion of the Estimated Fee that Consultant has not spent. Invoices for Cost Plus Pricing will include the costs associated with the Services performed the previous monthly period. Payment terms will be 100% net fifteen (15) days from the date of the invoice on all invoiced amounts. Client shall notify Consultant within five (5) business days after receipt of an invoice if it disputes all or some element of the invoice. Client and Consultant shall promptly attempt to effect a resolution of any dispute. Notwithstanding the foregoing, Client shall pay the undisputed portion of any invoice. Client may withhold payment of only that portion of an invoice disputed by Client in good faith until the dispute has been resolved.

Should Client fail to pay Consultant all amounts under an invoice when such amounts are due, Consultant may, at its option and upon the provision of ten (10) days written notice to Client, suspend its performance of Services under one or more Work Authorizations. Consultant shall not be required to resume performance of suspended Services until such time as all past due amounts have been paid by Client. If such a suspension of Services occurs, delays in performance of any of the Services, or any of Consultant’s other obligations under a Work Authorization, or increases Consultant’s costs of performance, the applicable Work Authorization will, prior to Consultant’s resumption of performance of Services, be equitably adjusted to extend Consultant’s time for performance of the delayed Services or other obligations sufficient to overcome the effects of such delay and/or to increase Consultant’s compensation to reflect its increased costs of performance. In the event any payment is not received within thirty (30) calendar days from the due date of such payment, Consultant may, at its sole discretion, terminate any one or more outstanding Work Authorization(s) and immediately recover all monies earned to date including but not limited to any expenses incurred associated with any suspension and/or termination and any and all costs associated with cancellation of Consultant’s vendors and subcontractors.

All late payments shall be subject to interest at a rate of one percent per month.

Consultant shall be responsible for all reporting and payment obligations with respect to Consultant’s personnel relating to worker’s compensation insurance, Social Security, state and federal unemployment insurance, medical-hospital insurance, salary continuation insurance, pension plan costs, and pro rata allowances for vacation and sick leave pay, as well as all other employee benefit programs.

Consultant may request an advance payment at its option under a given Work Authorization.

3. CONFIDENTIALITY

For a period commencing with the disclosure of any confidential information under this Agreement and/or a Work Authorization(s) and ending on the second anniversary such disclosure was first made, Consultant and Client each agree not to disclose to third parties, including also subcontractors and vendors, any information that is identified as confidential in writing on the materials made available to the other Party hereunder (or, if not in writing, which is reduced to writing and identified thereon as confidential within fifteen (15) days following first disclosure) without: (1) the prior written consent of the disclosing Party, and (2) fulfilling such conditions as the disclosing Party may reasonably prescribe. This shall include such information received from a Party or from such Party’s subcontractors, agents, or suppliers. The above restrictions shall not apply with respect to:

 

a.

  information which at the time of disclosure is generally available to the public;



 

b.

  information which after disclosure becomes generally available to the public by publication or otherwise other than as a result of a violation of this Article;



 

c.

  written information which was in the Party’s possession prior to first disclosure hereunder and which was not acquired under an obligation of confidentiality directly or indirectly from the disclosing Party;



 

d.

   information received by the Party after the time of first disclosure hereunder from a third party without notice to the receiving Party of any obligation of confidentiality or other restrictions with respect to use thereof; or



 

e.

         information which is independently developed by the receiving Party hereunder,



 

f.

information which is required by appropriate legal authority to be disclosed (but only to the extent of such requirement).



Neither Party shall make any press release or other public utterances of any kind regarding this Agreement, the information received pursuant to this Agreement, the contents of this Agreement or otherwise, without prior written consent of the other Party. The Parties agree that written consent will not be withheld unreasonably if the matter sought to be disclosed by a Party is required by the Securities and Exchange Commission, and therefore subject to disclosure, but only to the extent of such requirement.

Client and Consultant agree that in the event of a breach of the confidentiality provisions in this Article 3, the disclosing Party shall be entitled to equitable relief, including injunctive relief and specific performance.

4. RESPONSIBILITY FOR SERVICES

Consultant warrants that any consulting and professional engineering Services performed by it under a Work Authorization shall be performed in accordance with that degree of care and skill ordinarily exercised by members of the engineering profession applicable to the Services. Consultant’s sole liability to Client for any non-conforming Services shall be to reperform the non-conforming or defective Services, written notice of which must be promptly given by Client to Consultant. Consultant’s obligation for reperformance of non-conforming Services as set forth in the immediately preceding sentence shall extend for a term commencing at the substantial completion of such Services under a Work Authorization and ending one year later.

        Consultant may rely upon and use in the performance of any Services information supplied to it by Client without independent verification and Consultant shall not be responsible for defects in its Services attributable to its reliance upon or use of such information.

THE WARRANTIES SET FORTH IN THIS ARTICLE 4 ARE EXCLUSIVE, AND IN LIEU OF ANY AND ALL OTHER WARRANTIES RELATING TO THE SERVICES , WHETHER STATUTORY, EXPRESS OR IMPLIED, AND CONSULTANT DISCLAIMS ANY SUCH OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY AND ALL WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING AND/OR USAGE OF TRADE. ANY OTHER STATEMENTS OF FACT OR DESCRIPTIONS EXPRESSED IN THE AGREEMENT OR ANY WORK AUTHORIZATION SHALL NOT BE DEEMED TO CONSTITUTE A WARRANTY OF THE SERVICES OR ANY PART THEREOF. CONSULTANT ’S REPERFORMANCE OF DEFECTIVE OR NON-CONFORMING SERVICES THROUGH THE ONE YEAR PERIOD PROVIDED FOR IN THIS ARTICLE 4 SHALL CONSTITUTE COMPLETE FULLFILLMENT OF, AND CLIENT ’S EXCLUSIVE REMEDY FOR, ALL THE LIABILITIES OR RESPONSIBILITIES OF CONSULTANT TO CLIENT FOR NON-CONFORMING OR DEFECTIVE SERVICES , WHETHER THE CLAIMS OF CLIENT ARE BASED ON DELAY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, WARRANTY, INDEMNITY, ERROR AND OMISSION OR ANY OTHER CAUSE WHATSOEVER.

5. QUALITY ASSURANCE

The performance by Consultant of any quality assurance, vendor assurance, project management, construction management, or other third party supervisory or advisory services as part of Consultant’s Services under a Work Authorization shall not constitute an assumption by Consultant of the obligations of Client or its other contractor, vendors or suppliers. Client shall defend Consultant against any claim, suit or proceeding asserted by one of its other contractors, vendors or suppliers and indemnify, defend and save Consultant harmless from liability for any loss sustained by such contractor, vendor or supplier in connection with any such quality assurance, vendor assurance, project management, construction management, or other third party supervisory or advisory services.

6. INSURANCE

Upon Client’s written request, Consultant shall effect and maintain during the performance of Services under a Work Authorization the following insurance coverages:

 

a)

  Workers’ Compensation for statutory limits in compliance with the applicable state and federal laws, and Employer’s Liability with a limit of $1,000,000;



 

b)

  Comprehensive General Liability including Products and Completed Operations, Contractual Liability and Broad Form Property and Personal Injury Liability with a combined single limit of $1,000,000 per occurrence and in the aggregate;



 

c)

  Automobile Liability Insurance with a combined single limit of $1,000,000 for bodily injury and property damage with respect to vehicles either owned, non-owned, and leased by Consultant in the performance of Services under the Agreement.



In the event Consultant performs Services under any Work Authorization in connection with a project for which Client or another party with which Client has contracted obtains all risk or builder’s risk property insurance, Client, as the case may be, shall name, or shall cause such other party to name, Consultant as an additional insured on such all risk or builder’s risk property insurance. Client acknowledges that Consultant has an insurable interest in such all risk or builder’s risk property insurance.

If requested, Client and Consultant shall each furnish to the other duly executed certificates of insurance, indicating that policies with respect to the aforementioned insurance have been issued and that such policies contain provisions regarding prior notification of cancellation.

Consultant and Client each waive all rights of recovery against a loss occurring to property of the other, to the extent that such waivers do not invalidate the property insurance of either.

7. INDEMNITY

Consultant shall indemnify, defend and save Client, its officers, directors, employees affiliates harmless from any loss, cost or expense claimed by third parties for property damage and/or bodily injury, including death, to the proportionate extent such loss, cost or expense arises from the negligence or willful misconduct of Consultant, its employees or affiliates in connection with the Services.

Client shall indemnify, defend and save Consultant, its officers, directors, employees, affiliates harmless from any loss, cost or expense claimed by third parties for property damage and/or bodily injury, including death, to the proportionate extent such loss, cost or expense arises from the negligence or willful misconduct of Client its employees or affiliates in connection with the Services.

Notwithstanding any other provision contained elsewhere in this Agreement to the contrary, Client shall be liable for and indemnify, defend, and save Consultant, its officers, directors, employees and affiliates harmless from and against any and all claims (including, without limitation, all penalties, attorney’s fees, fines and administrative or civil sanctions arising out of or related to such claim), losses, costs, expenses, judgments, damages (including incidental, consequential, indirect and special damages), penalties, and liabilities of any kind or nature whatsoever, suffered as a result of, or arising out of, or in connection with, investment decisions of Client or third parties in reliance upon the results of the Services.

The indemnity and save harmless obligations of Consultant and Client under this Article 7 shall not apply with respect to any radioactive, hazardous, polluted, toxic, or contaminated substances or materials, as Consultant’s and Client’s rights and obligations with respect thereto are set forth in Article 10.

8. WAIVER OF CONSEQUENTIAL DAMAGES

Notwithstanding any other provision to the contrary in this Agreement or a Work Authorization, neither Client nor Consultant shall be liable, whether based on contract, tort, negligence, strict liability, warranty, indemnity, error and omission or any other cause whatsoever, for any consequential, special, incidental, indirect, punitive or exemplary damages, or damages arising from or in connection with loss of power, loss of use, loss of revenue or profit (actual or anticipated), loss by reason of shutdown or non-operation, increased cost of construction, cost of capital, cost of replacement power or customer claims, and Consultant hereby releases Client and Client hereby releases Consultant from any such liability; provided , however , that the limitation of liability in this Article 8 shall not apply with respect to Client’s indemnity and save harmless obligations to Consultant under Article 10, and shall not affect Client’s obligation to pay Consultant as required under this Agreement for performance of the Services under a Work Authorization.

9. LIMITATION OF LIABILITY

Notwithstanding any other provision to the contrary in this Agreement or a Work Authorization, in no event shall the total cumulative aggregate liability of Consultant resulting from, arising out of or in connection with the performance or nonperformance of any or all Services or other obligations under a Work Authorization, whether based on delay, contract, tort, negligence, strict liability, warranty, indemnity, error and omission or any other cause whatsoever exceed ten percent (10%) of the fee paid Consultant pursuant to such Work Authorization or extend beyond the expiration of the warranty period for the Services performed under the Work Authorization. The remedies stated in the Agreement are Client’s sole and exclusive remedies for any failure by Consultant to comply with the obligations.

10. HAZARDOUS SUBSTANCES

Notwithstanding any other provision to the contrary in this Agreement or a Work Authorization, Client shall indemnify, defend and save Consultant and its affiliates, consultants, agents, subcontractors and suppliers of any tier, and any and all employees, officers, directors of any of the foregoing, if any, from and against any and all claims (including, without limitation, all penalties, attorney’s fees, fines and administrative or civil sanctions arising out of or related to such claim), losses, costs, expenses, judgments, damages (including incidental, consequential, indirect and special damages), penalties, and liabilities o


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