LUMP SUM DESIGN-BUILD AGREEMENT

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Title: LUMP SUM DESIGN-BUILD AGREEMENT
Governing Law: New York Date: 12/22/2006

exv10w12

EXHIBIT 10.12

LUMP SUM DESIGN-BUILD AGREEMENT

BETWEEN

FIRST UNITED ETHANOL, LLC (“OWNER”)

AND

FAGEN, INC. (“DESIGN-BUILDER”)

November 16, 2006

* Portions omitted pursuant to a request for confidential treatment and filed separately with the Securities and Exchange Commission.

TABLE OF CONTENTS


	Page

Article 1 Definitions; Rules of Interpretation		1

1.1 Rules of Construction		1
1.2 Defined Terms		2

Article 2 The Project		6

2.1 Services to be Performed		6
2.2 Extent of Agreement		6
2.3 Conflicting Provisions		7

Article 3 Design-Builder Responsibilities		7

3.1 Design-Builder’s Services in General		7
3.2 Design Development and Services		8
3.3 Standard of Care		8
3.4 Government Approvals and Permits		9
3.5 Subcontractors		9
3.6 Maintenance of Site		9
3.7 Project Safety		9
3.8 Submission of Reports		10
3.9 Training		10

Article 4 Owner’s Responsibilities		11

4.1 Duty to Cooperate		11
4.2 Furnishing of Services and Information		11
4.3 Financial Information; Cooperation with Lenders; Failure to Obtain Financial Closing		12
4.4 Owner’s Representative		12
4.5 Government Approvals and Permits		13
4.6 Owner’s Separate Contractors		13
4.7 Security		13

Article 5 Ownership of Work Product; Risk of Loss		13

5.1 Work Product		13
5.2 Owner’s Limited License Upon Payment in Full		13
5.3 Owner’s Limited License Upon Owner’s Termination for Convenience or Design-Builder’s Election to Terminate		14
5.4 Owner’s Limited License Upon Design-Builder’s Default		14
5.5 Owner’s Indemnification for Use of Work Product		15
5.6 Risk of Loss		15

Article 6 Commencement and Completion of the Project		15

6.1 Phase I and Phase II Engineering		15
6.2 Notice to Proceed; Commencement		15
6.3 Project Start-Up and Testing		16

Table of Contents
(continued)


	Page
6.4 Substantial Completion		17
6.5 Final Completion		18
6.6 Post Completion Support		19

Article 7 Performance Testing and Liquidated Damages		19

7.1 Performance Guarantee		19
7.2 Performance Testing		19
7.3 Liquidated Damages		20
7.4 Bonds and Other Performance Security		21

Article 8 Warranties		22

8.1 Design-Builder Warranty		22
8.2 Correction of Defective Work		22
8.3 Warranty Period Not Limitation to Owner’s Rights		23

Article 9 Contract Price		23

9.1 Contract Price		23
9.2 Effect of Construction Cost Index Increase on Contract Price		24

Article 10 Payment Procedures		24

10.1 Payment at Financial Closing		24
10.2 Progress Payments		24
10.3 Final Payment		25
10.4 Failure to Pay Amounts Due		26
10.5 Design-Builder’s Payment Obligations		26
10.6 Record Keeping and Finance Controls		26

Article 11 Hazardous Conditions and Differing Site Conditions		26

11.1 Hazardous Conditions		26
11.2 Differing Site Conditions; Inspection		27

Article 12 Force Majeure; Change in Legal Requirements		28

12.1 Force Majeure Event		28
12.2 Effect of Force Majeure Event		28
12.3 Change in Legal Requirements		29
12.4 Time Impact And Availability		29

Article 13 Changes to the Contract Price and Scheduled Completion Dates		29

13.1 Change Orders		29
13.2 Contract Price Adjustments		30
13.3 Emergencies		31
13.4 Failure to Complete Owner’s Milestones		31

Article 14 Indemnity		31

14.1 Tax Claim Indemnification		31
14.2 Payment Claim Indemnification		31
14.3 Design-Builder’s General Indemnification		31