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:
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a.
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information which at the time of disclosure is generally available
to the public;
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b.
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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;
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c.
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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;
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d.
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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
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e.
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information which is independently developed by the receiving Party
hereunder,
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f.
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information
which is required by appropriate legal authority to be disclosed
(but only to the extent of such requirement).
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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:
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a)
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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;
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b)
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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;
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c)
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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.
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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
