ADMINISTRATIVE SERVICES, CONSTRUCTION MANAGEMENT, OPERATIONS AND MAINTENANCE SUBCONTRACT
Exhibit 10.38
ADMINISTRATIVE SERVICES, CONSTRUCTION MANAGEMENT, OPERATIONS
AND MAINTENANCE SUBCONTRACT
AND MAINTENANCE SUBCONTRACT
THIS ADMINISTRATIVE SERVICES, CONSTRUCTION MANAGEMENT, OPERATIONS AND MAINTENANCE SUBCONTRACT
(the “Subcontract”) is hereby entered into by and between BioEnergy Management Services,
LLC, a Delaware limited liability company (the “Company”) and Myriant Technologies LLC, a
Delaware limited liability company (the “Subcontractor”) as of this 16th day of July, 2009.
RECITALS
WHEREAS, the Company has entered into that certain Administrative Services and
Construction Management Agreement by and between the Company and Bionol Clearfield, LLC, a
Pennsylvania limited liability company (“Clearfield”), dated February 6, 2008 (the
“Administrative Services and Construction Management Agreement”), whereby the Company has
been retained to perform certain construction management and administrative services related to the
construction and maintenance of a dry mill ethanol production facility in Clearfield County,
Pennsylvania (the “Facility”);
WHEREAS, the Company has entered into that certain Operations and Maintenance Agreement by and
between the Company and Clearfield, dated February 6, 2008 (the “Operations and Maintenance
Agreement”), whereby the Company has been retained to operate and maintain the Facility; and
WHEREAS, the Company desires to utilize the services of the Subcontractor to perform the
obligations of the Company under the Administrative Services and Construction Management Agreement
and the Operations and Management Agreement and the Subcontractor desires to provide those
services.
NOW THEREFORE in consideration of the promises contained herein, the Company and the Subcontractor
do mutually agree as follows:
1. Obligations of the Subcontractor. The Subcontractor, acting as an independent
contractor and not as an agent, representative, or employee of Company, shall provide the necessary
facilities, personnel, materials, equipment and shall otherwise do all things necessary or incident
to the performance of the services as more specifically outlined in the Statement of Work attached
hereto and made a part of this subcontract.
2. Term of the Subcontract. The services to be performed by the Subcontractor shall
commence on the date hereof and shall continue until termination of this Subcontract as provided in
Section 5 hereof.
3. Price. This is a fixed price subcontract. The total price of the work under this
Subcontract will be as follows:
(a) Administrative Services and Construction Management Agreement: a) 95% of the amount earned by
the Company upon construction completion due and payable upon receipt of the funds by the Company,
b) $3,800,000 per year due and payable in four equal installments on the first day of each calendar
quarter. The Administrative Fee and installments thereof shall be prorated to account for partial
operating Years.
(b) Operations and Management Agreement: 95% of the amount received by the Company pursuant to
section 9.1(a) Payment for Services, due and payable upon receipt.
4. Submission of Invoices to the Company. Operations and Management Agreement
Invoices shall be submitted on the first day of each calendar quarter, and due and payable upon
receipt by the Company. Invoices shall be submitted to the Company at BioEnergy Management
Services, LLC, Xxx Xxxxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, XX 00000. The final invoice should be
marked “Final Invoice.”
5. Termination. Company may at any time, by written notice to the Subcontractor,
terminate this subcontract in whole or in part at any time either for Company’s convenience or
because of the failure of the Subcontractor to fulfill its subcontract obligations. No costs shall
be incurred after the receipt of this notice until the Subcontractor has received further direction
from Company and any necessary changes to the subcontract have been made.
6. Inspections and Evaluations. The Company, through any authorized representative,
has the right, at all reasonable times, to inspect, or otherwise evaluate the work performed or
being performed hereunder and the premises on which it is being performed. All inspections and
evaluations shall be performed in such a manner as will not unduly delay the work.
7. Books and Records. The Subcontractor shall maintain, and Company, or if
appropriate, the sponsor of Company’s prime contract through any authorized representative, shall
have the right to examine books, records, documents, and other evidence and accounting procedures
and practices, sufficient to reflect properly (1) all direct costs of whatever nature claimed to
have been incurred and anticipated to be incurred for the performance of this subcontract, and (2)
the use of, and charges for the use of, the facilities.
8. Stop Work Order. The Company may at any time, by written order, require the
Subcontractor to stop all, or any part, of the work called for by this subcontract for a period of
up to ninety days. Upon receipt of such an order, the Subcontractor shall forthwith take all
reasonable steps to minimize the incurrence of costs allocable to the work covered by the order
during the period of work stoppage. Within the ninety-day period or within any extension of that
period to which the parties shall have agreed, Company shall either (i) cancel the stop work order,
or (ii) terminate the work covered by such order.
If the stop work order is canceled in writing, the Subcontractor shall resume work. If the
period of the order or any extension thereto merely expires, the Subcontractor shall contact
Company and ask for directions before resuming work or treating the silence as a Termination for
Convenience. An equitable adjustment shall be made, and the subcontract shall be modified in
writing accordingly, if (i) the stop work order results in an increase in the time required for, or
in the Subcontractor’s costs properly allocable to, the performance of any part of this
subcontract, and (ii) the Subcontractor asserts a claim for such adjustment within thirty days
after the end of the period of work stoppage.
If a stop work order is not canceled and the work covered by such order is terminated, the
reasonable costs resulting from the stop work order shall be allowed in arriving at the termination
settlement.
9. Indemnity. The Subcontractor agrees to hold Company harmless from any and all
liability, claims, suits, demands, or other consequences, from any cause whatsoever, and all costs
in connection therewith, arising out of or relating in any manner to, the Subcontractor’s
performance under this subcontract.
10. Governing Law. This subcontract is governed by and is to be construed in
accordance with the laws of the State of New York.
11. Inventions and Discoveries of the Subcontractor. The Subcontractor shall disclose
promptly and fully to Company all ideas, inventions, developments, and improvements, relative to
the field of work set forth herein, made or conceived by the Subcontractor or any of the
Subcontractor’s employees or associates in the course of or under the terms of this subcontract.
The Subcontractor further agrees that all such ideas, inventions, improvements, and developments
shall become the sole and absolute property of Company. During the term of this subcontract and
after its expiration or termination, the Subcontractor agrees that it will, at the request and
expense of Company (although not a part of the principal sum payable under this subcontract),
execute any and all papers and do whatever is reasonably required to ensure that Company shall
obtain full title to such ideas, inventions, improvements, and developments.
Upon expiration or termination of this subcontract, the Subcontractor shall make complete
disclosures pursuant to this provision of all inventions and discoveries not previously disclosed
and certify in writing that such disclosures are complete.
12. Confidentiality. The Subcontractor agrees to keep confidential any information
obtained under this subcontract, and to refrain from publishing or revealing to others any
information acquired in the course of this work without the written consent of Company. Upon the
expiration or termination of this subcontract, the Subcontractor agrees to turn in to Company all
records, notebooks, data, drawings, photographs, and other information of every description
furnished by Company and further agrees not to disclose, without Company’s written permission, any
information or data so secured. Such data and information shall be the property of Company. The
Subcontractor agrees to assign to Company all copyrightable material first produced or composed by
it in connection with the performance of the work under this subcontract, and to assent to and
assist in the registration of copyrights on such material. The Subcontractor will obtain
agreements to effectuate the purposes of this paragraph from all persons who perform any part of
the work under this subcontract or who have access to such records, data, information, etc.
13. Conflicts of Interest. The Subcontractor agrees that if at any time during the
term of this subcontract, or for a period of one year thereafter, he is, or contracts with the
Company to become, directly or indirectly, a sponsor of research, or if his employees, or agents
are or become such a sponsor, or if the opportunity arises wherein any of the above parties may
wish to become such a sponsor, the Subcontractor shall immediately disclose such information, and
such additional information as may be reasonably requested by Company, to Company for its
evaluation with respect to possible conflicts of interest.
[Signature Page Follows]
In witness hereof, the parties hereto have accepted and executed this Subcontract as of the
day and year first above written.
| BIOENERGY MANAGEMENT SERVICES, LLC | ||||||
| By: Name: |
/s/ Xxxxxxx X. Xxxxx
|
|||||
| Title: | President | |||||
| MYRIANT TECHNOLOGIES LLC | ||||||
| By: Name: |
/s/ Xxxxx Xxxxxx
|
|||||
| Title: | Executive Vice President | |||||
STATEMENT OF WORK
Subcontract for all services required to be performed under the Administrative Services and
Construction Management Agreement, Article 2, Services.
Subcontract for all services required to be performed under the Operations and Maintenance
Agreement, Article 5, Scope of Services.
