**Exhibit 10.13**

 

**SECTION 00500**

**EJCDC STANDARD FORM OF AGREEMENT BETWEEN OWNERAND CONTRACTOR ON THE BASIS OF A STIPULATED PRICE EJCDC NO. 1910-8-A-1 (1996EDITION)**

 

**THISAGREEMENT** is dated as of the 15th day of October inthe year 2004 by and between Town of Randolph (hereinafter called OWNER) and VolkmannRailroad Builders, Inc. (hereinafter called CONTRACTOR).

 

OWNERAND CONTRACTOR, in consideration of the mutual covenants hereinafter set forth,agree as follows:

 

**Article 1. WORK.**

 

1.1                                 CONTRACTOR shall complete all Work asspecified or indicated in the Contract Documents.  The Work is generally described as follows:

 

Turnouts,track, derails and earthen berm construction, including ballast and bonding andgrounding of track.

 

1.2                                 The Project for which the Work under theContract Documents may be the whole or only a part is generally described asfollows:

 

RailYard Construction for UWGP, LLC

 

**Article 2. ENGINEER.**

 

2.1                                 The Project has been designed by KeyRailroad Development, LLC., who is hereinafter called ENGINEER and who isto act as OWNER’s representative, assume all duties and responsibilities andhave the rights and authority assigned to ENGINEER in the Contract Documents inconnection with completion of the Work in accordance with the Contract Documents.

 

**Article 3. CONTRACT TIMES.**

 

3.1                                 Work will be substantially completed by May 20,2005, and completed and ready for final payment by May 31, 2005.

 

3.2                                 *Liquidated Damages*. OWNER and CONTRACTOR recognize that time isof the essence of this Agreement and that OWNER will suffer financial loss ifthe Work is not completed within the times specified in paragraph 3.1above, plus any extensions thereof allowed in accordance with Article 12of the General Conditions.  They alsorecognize the delays, expense and difficulties involved in proving the actualloss suffered by OWNER if the Work is not completed on time.  Accordingly, instead of requiring any suchproof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but notas a penalty) CONTRACTOR shall pay Owner Five Hundred dollars ($500)for each day that expires after the time specified in paragraph 3.1 forSubstantial Completion until the Work is substantially complete.  After Substantial Completion, if CONTRACTORshall neglect, refuse or fail to complete the remaining Work within the timespecified in paragraph 3.1 for completion and readiness for final payment orany proper

 

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extensionthereof granted by OWNER, CONTRACTOR shall pay OWNER Five Hundreddollars ($500) for each day that expires after the time specified inparagraph 3.1 for completion and readiness for final payment.

 

**Article 4. CONTRACT PRICE.**

 

OWNERshall pay CONTRACTOR for completion of the Work in accordance with the ContractDocuments an amount in current funds equal to the sum of the amounts determinedpursuant to the following:

 

Forall Unit Price Work, an amount equal to the sum of the established unit pricefor each separately identified item of Unit Price Work times the estimatedquantity of that item as indicated below:

 

UNIT PRICE WORK

 
| **NO.** | ** ** | **ITEM**                      | ** ** | **UNIT** | ** ** | **ESTIMATED  QUANTITY** | ** ** | **UNIT  PRICE** | ** ** | **TOTAL  ESTIMATED** | ** ** |
|---------|------------|-------------------------------|------------|----------|------------|-------------------------|------------|-----------------|------------|----------------------|------------|
| 1.      |       | Mobilization/Demobilization   |       | 1        |       | LS                      |       | $               | 12,800.00  |                 | $          | 12,800.00 |   |
| 2.      |       | #8-112# Turnout  Construction |       | 1        |       | EA                      |       | $               | 26,000.00  |                 | $          | 208,000.00 |   |
| 3.      |       | 112# Track Construction       |       | 8,021    |       | TF                      |       | $               | 67.00      |                 | $          | 537,407.00 |   |
| 4.      |       | Scale Track  Construction     |       | 72       |       | TF                      |       | $               | 60.00      |                 | $          | 4,320.00 |   |
| 5.      |       | Concrete Pad Track  Constr.   |       | 349      |       | TF                      |       | $               | 118.00     |                 | $          | 41,182.00 |   |
| 6.      |       | Sliding Derail  Construction  |       | 2        |       | EA                      |       | $               | 2,800.00   |                 | $          | 5,600.00 |   |
| 7.      |       | Earthen Berm  Construction    |       | 2        |       | EA                      |       | $               | 500.00     |                 | $          | 1,000.00 |   |
| 8.      |       | Close Clearance Signage       |       | 1        |       | LS                      |       | $               | 400.00     |                 | $          | 400.00 |   |
| 9.      |       | Track Bonding and  Grounding  |       | 1        |       | LS                      |       | $               | 4,830.00   |                 | $          | 4,830.00 |   |

 

TOTALOF ALL UNIT PRICES Eight Hundred Fifteen Thousand Five Hundred Thirty-NineDollars (use words) $815,539.00 (Dollars)

 

Asprovided in Paragraph 11.03 of the General Conditions, estimated quantities arenot guaranteed, and determinations of actual quantities and classification areto be made by ENGINEER as provided in Paragraph 9.10 of the GeneralConditions.  Unit prices have beencomputed as provided in Paragraph 11.03.B of the General Conditions.

 

**Article 5. PAYMENT PROCEDURES.**

 

CONTRACTORshall submit Applications for Payment in accordance with Article 14 of theGeneral Conditions.  Applications forPayment will be processed by ENGINEER, as provided in the General Conditions.

 

5.1*                                **Progress Payments;Retainage.* OWNER shall makeprogress payments on account of the Contract Price on the basis of CONTRACTOR’sApplications for Payment, as recommended by ENGINEER, on or about the 24thday of each month during construction as provided in paragraphs 5.1.1 and 5.1.2below.  All such payments will bemeasured by the schedule of values established in paragraph 2.07.3 of theGeneral Conditions (and in the case of Unit Price Work based on the number ofunits completed) or, in the event there is no schedule of values, asprovided in the General Requirements.

 

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5.1.1                        Prior to Substantial Completion, progress payments will be made in anamount equal to the percentage indicated below, but, in each case, less theaggregate of payments previously made and less such amounts as ENGINEER shalldetermine, or OWNER may withhold, in accordance with Paragraph 14.7 of theGeneral Conditions.

 

90%    of Work completed (with thebalance being retainage).

 

5.1.2                        Upon Substantial Completion, in an amount sufficient to increase totalpayments to CONTRACTOR to 95% of the Contract Price (with the balancebeing retainage), less such amounts as ENGINEER shall determine, or OWNER maywithhold, in accordance with Paragraph 14.7 of the General Conditions.

 

5.2*                                *Final Payment*.*  Upon final completion and acceptance of theWork in accordance with paragraph 14.13 of the General Conditions, OWNER shallpay the remainder of the Contract Price as recommended by ENGINEER as providedin said Paragraph 14.13.

 

**Article 6. INTEREST.**

 

6.1                                 All moneys not paid when due, as provided in Article 14of the General Conditions, shall bear interest at the maximum rate allowed bylaw at the place of the Project.

 

**Article 7. CONTRACTOR’S REPRESENTATIONS.**

 

Inorder to induce OWNER to enter into this Agreement, CONTRACTOR makes thefollowing representations:

 

7.1                                 CONTRACTOR has examined and carefully studiedthe Contract Documents (including the Addenda listed in Paragraph 8) and theother related data identified in the Bidding Documents including “technicaldata.”

 

7.2                                 CONTRACTOR has visited the site and becomefamiliar with and is satisfied as to the general, local and site conditionsthat may affect cost, progress, performance or furnishing of the Work.

 

7.3                                 CONTRACTOR is familiar with and is satisfiedas to all federal, state, and local laws and regulations that may affect cost,progress, performance, and furnishing of the Work.

 

7.4                                 CONTRACTOR has carefully studied all reportsof explorations and tests of subsurface conditions at or contiguous to the siteand all drawings of physical conditions in or relating to existing surface orsubsurface structures at or contiguous to the site (except UndergroundFacilities) which have been identified in the Supplementary Conditions asprovided in Paragraph 4.2.1 of the General Conditions.  CONTRACTOR accepts the determination setforth in Paragraph SC-4.2 of the Supplementary Conditions of the extent of the “technicaldata” contained in such reports and drawings upon which CONTRACTOR is entitledto

 

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relyas provided in Paragraph 4.2 of the General Conditions.  CONTRACTOR acknowledges that such reports anddrawings are not Contract Documents and may not be complete for CONTRACTOR’spurposes.  CONTRACTOR acknowledges thatOWNER and ENGINEER do not assume responsibility for the accuracy orcompleteness of information and data shown or indicated in the ContractDocuments with respect to Underground Facilities at or contiguous to thesite.  CONTRACTOR has obtained andcarefully studied (or assumes responsibility for having done so) all suchadditional supplementary examinations, investigations, explorations, tests,studies, and data concerning conditions (surface, subsurface, and UndergroundFacilities) at or contiguous to the site, or otherwise, which may affect cost,progress, performance, or furnishing of the Work or which relate to any aspectof the means, methods, techniques, sequences, and procedures of construction tobe employed by CONTRACTOR and safety precautions and programs incident thereto.  CONTRACTOR does not consider that anyadditional examinations, investigations, explorations, tests, studies, or dataare necessary for the performance and furnishing of the Work at the ContractPrice, within the Contract Times and in accordance with the other terms and conditionsof the Contract Documents.

 

7.5                                 CONTRACTOR is aware of the general nature ofwork to be performed by OWNER and others at the site that relates to the Work,as indicated in the Contract Documents.

 

7.6                                 CONTRACTOR has correlated the information knownto CONTRACTOR, information and observations obtained from visits to the site,reports, and drawings identified in the Contract Documents and all additionalexaminations, investigations, explorations, tests, studies, and data with theContract Documents.

 

7.7                                 CONTRACTOR has given ENGINEER written noticeof all conflicts, errors, ambiguities, or discrepancies that CONTRACTOR hasdiscovered in the Contract Documents and the written resolution thereof byENGINEER is acceptable to CONTRACTOR, and the Contract Documents are generallysufficient to indicate and convey understanding of all terms and conditions forperformance and furnishing of the Work.

 

**Article 8. CONTRACT DOCUMENTS.**

 

TheContract Documents which comprise the entire agreement between OWNER and CONTRACTORconcerning the Work consist of the following:

 

8.1                                 This Agreement (Pages 1 to 6,inclusive).

 

8.2                                 Performance, Payment, and other Bonds.

 

8.3                                 Notice to Proceed.

 

8.4                                 General Conditions (Pages 1 to 41,inclusive).

 

8.5                                 Supplementary Conditions (Pages 1 to 5,inclusive).

 

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8.6                                 Specifications bearing the title UWGP, LLCRail Yard Construction Project  andconsisting of three divisions, as listed in table of contents thereof.

 

8.7                                 Drawings consisting of a cover sheet andsheets numbered R-1 through R-16 inclusive with each sheetbearing the following general title: UNITED WISCONSIN GRAIN PRODUCERSETHONAL FACILITY RAIL YARD PROJECT, TOWN OF RANDOLPH, COLUMBIA COUNTY,WISCONSIN  .

 

8.8                                 Addenda numbers 1 and 2,inclusive.

 

8.9                                 CONTRACTOR’s Bid (pages 1 to 15,inclusive).

 

8.10                           The following which may be delivered or issued after the Effective Dateof the Agreement and are not attached hereto: All Written Amendments and other documents amending, modifying orsupplementing the Contract Documents pursuant to Paragraphs 3.04.A and 3.04.Bof the General Conditions.

 

Thedocuments listed in Paragraphs 8.2 et seq. above are attached to this Agreement(except as expressly noted otherwise above).

 

Thereare no Contract Documents other than those listed above in this Article.  The Contract Documents may only be amended,modified or supplemented as provided in Paragraphs 3.04.A and 3.04.B of theGeneral Conditions.

 

**Article 9. MISCELLANEOUS.**

 

9.1                                 Terms used in this Agreement which aredefined in Article 1 of the General Conditions will have the meaningsindicated in the General Conditions.

 

9.2                                 No assignment by a party hereto of any rightsunder or interests in the Contract Documents will be binding on another partyhereto without the written consent of the party sought to be bound; and,specifically but without limitation, moneys that may become due and moneys thatare due may not be assigned without such consent (except to the extent that theeffect of this restriction may be limited by law), and unless specificallystated to the contrary in any written consent to an assignment no assignmentwill release or discharge the assignor from any duty or responsibility underthe Contract Documents.

 

9.3                                 OWNER and CONTRACTOR each binds itself, itspartners, successors, assigns, and legal representatives to the other partyhereto, its partners, successors, assigns, and legal representatives in respectto all covenants, agreements and obligations contained in the Contract Documents.

 

9.4                                 Any provision or part of the ContractDocuments held to be void or unenforceable under any Law or Regulation shall bedeemed stricken, and all remaining provisions shall continue to be valid andbinding upon OWNER and CONTRACTOR, who agree that the Contract Documents shallbe reformed to replace such stricken provision or part thereof with a valid andenforceable provision that comes as close as possible to expressing theintention of the stricken provision.

 

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INWITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement intriplicate.  One counterpart each hasbeen delivered to OWNER, CONTRACTOR, and ENGINEER.  All portions of the Contract Documents havebeen signed, initialed or identified by OWNER and CONTRACTOR or identified byENGINEER on their behalf.

 

ThisAgreement will be effective on                                                   ,20               (which is the Effective Date of the Agreement).

 
| OWNER:                                               |   | CONTRACTOR:                                                               |                              |
|------------------------------------------------------|--------|---------------------------------------------------------------------------|-----------------------------------|
|                                                 |   |                                                                      |                              |
| TOWN  OF RANDOLPH                                    |   |                                                                      | VOLKMANN  RAILROAD BUILDERS, INC. |   |   |
|                                                 |   |                                                                      |                              |
| By:                                                  |   | /s/  Rodney Koh - Clerk                                                   |                              |   | By: |   | /s/  Richard Volkmann |   |   |
|                                                 |   |                                                                      |                              |   |   |   |   |
| [CORPORATE  SEAL]                                    |   |                                                                      | [CORPORATE  SEAL]                 |   |
|                                                 |   |                                                                      |                              |
|                                                 |   |                                                                      |                              |
| Attest:                                              |   |                                                                      |                              | Attest: | /s/  Anita M. Wibhert |   |   |
|                                                 |   |                                                                      |                              |
| Address  for giving notices:                         |   | Address  for giving notices:                                              |                              |   |
|                                                 |   |                                                                      |                              |
|                                                 |   |                                                                      |  14625 W. Kaul Ave.          |   |   |
|                                                 |   |                                                                      |                              |
|                                                 |   |                                                                      |   Menomonee Falls, WI 53051  |   |   |
|                                                 |   |                                                                      |                              |   |
| (If  OWNER is a public body, attach evidence of      |   | License  No.                                                              |                              |   |   |
| authority  to sign and resolution or other documents |   |                                                                      |                              |
| authorizing  execution of Agreement.)                |   | Agent  for service of process:                                            |                              |   |   |
|                                                 |   |                                                                      |                              |
|                                                 |   |                                                                      |                              |   |
|                                                 |   | (If  CONTRACTOR is a corporation, attach evidence  of authority to sign.) |                              |
|                                                      |        |                                                                           |                                   |  |  |  |  |  |  |  |  |  |  |  |  |

 

***END OF SECTION***

 

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**SECTION 00920**

**NOTICE OF AWARD**

 

Dated Oct. 1, 2004    

 
| TO:                        |                                                                  | Volkmann  Railroad Builders, Inc. |   |
|----------------------------|-----------------------------------------------------------------------|----------------------------------------|--------|
|                       |                                                                  | (BIDDER)                               |   |
|                       |                                                                  |
| ADDRESS:                   |                                                                  | 14625  W. Kaul Avenue                  |   |
|                       |                                                                  |                                   |   |
|                       |                                                                  | Menomonee  Falls, WI 53051             |   |
|                       |                                                                  |
|                       |                                                                  |
|                       |                                                                  |
| PROJECT:                   |                                                                  | UWGP,  LLC Rail Yard Construction      |   |
|                       |                                                                  |                                   |   |
| OWNER’S  CONTRACT NO. |                                                                  | None                                   |   |
|                       |                                                                  |                                   |
| CONTRACT  FOR:             | UWGP, LLC Rail Yard Construction                                      |                                   |
|                       | ***Insert name of Contract as it appears in the  Bidding Documents*** |                                   |
|                            |                                                                       |                                        |        |  |  |  |  |  |  |

 

You are notified that your Bid dated August 2, 2004 for the aboveContract has been considered.  You arethe apparent Successful Bidder and have been awarded a contract for UWGP, LLCRail Yard Construction

 
|   |   |
|--------|--------|

***Indicate totalWork, alternates or sections of Work awarded***

 

TheContract Price of your contract is:

ThreeHundred Thirty-Two Thousand, One Hundred Twenty-Three  Dollars ($ 815,539.00).

[Insert appropriate datain re Unit Prices.  Change language forCost-Plus contracts.]

 

3copies of each of the proposed Contract Documents accompany this Notice ofAward.

 

Youmust comply with the following conditions precedent within 15 days of the dateof this Notice of Award, that is by Oct. 15, 2004.

 

1.                                       You must deliver to the OWNER three (3) fullyexecuted counterparts of the Agreement including all the Contract Documents.

 

2.                                       You must deliver Performance and PaymentBonds per Owner’s requirements.

 

3.                                       You must deliver copies of all insurancecertificates required by the contract documents.

 

Failureto comply with these conditions within the time specified will entitle OWNER toconsider your Bid in default, to annul this Notice of Award.

 

Within10 days after you comply with the above conditions, OWNER will return to youone fully

 

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signedcounterpart of the Agreement with the Contract Documents attached.

 
|                         |   | TOWN  OF RANDOLPH                 |                   |
|------------------------------|--------|-----------------------------------|------------------------|
|                         |   | (OWNER)                           |                   |
|                         |   |                              |                   |
|                         |   | By:                               | /s/ Rodney Koh - Clerk |   |
|                         |   | (AUTHORIZED  SIGNATURE)           |                   |
|                         |   |                              |                   |
|                         |   |                              |                   |
|                         |   |                              |                   |
|                         |   | **ACCEPTANCE OF AWARD**           |                   |
|                         |   |                              |                   |
|                         |   | VOLKMANN  RAILROAD BUILDERS, INC. |                   |
|                         |   | (CONTRACTOR)                      |                   |
|                         |   |                              |                   |
|                         |   | By:                               | /s/ Richard Volkmann   |   |
|                         |   | (AUTHORIZED  SIGNATURE)           |                   |
|                         |   |                              |                   |
|                         |   |                              | Pres                   |   |
|                         |   | (TITLE)                           |                   |   |
| COPY  to ENGINEER            |   |                              |                   |
| ***Use Certified Mail,       |   |                              | 9/30/04                |   |
| Return Receipt  Requested*** |   | (DATE)                            |                   |   |
|                              |        |                                   |                        |  |  |

 

***END OF SECTION***

 

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**SECTION 00930**

**NOTICE TO PROCEED**

 

Dated  Oct. 1,2004          

 
| TO:          |   | Volkmann  Railroad Builders, Inc. |   |
|--------------|--------|----------------------------------------|--------|
| (CONTRACTOR) |

 
| ADDRESS:                   |   | 14625  W. Kaul Ave.               |   |
|----------------------------|--------|-----------------------------------|--------|
|                       |   | Menomonee  Falls, WI 53051        |   |
|                       |   |                              |   |
| PROJECT:                   |   | UWGP,  LLC Rail Yard Construction |   |
|                       |
| OWNER’S  CONTRACT NO. |   | None                              |   |
|                       |   |
| CONTRACT  FOR:             |   | UWGP,  LLC Rail Yard Construction |   |
|                            |        |                                   |        |  |  |  |  |

***Insertname of Contract as it appears in the Bidding Documents***

 

Youare notified that the Contract Times under the above Contract will commence torun on Oct. 16 , 2004.  By thatdate, you are to start performing your obligations under the ContractDocuments.  In accordance with Article 3of the Agreement the dates of Substantial Completion and completion andreadiness for final payment are May 20, 2005 and May 31,2005.

 

Beforeyou may start any Work at the site, paragraph 2.7 of the General Conditionsprovides that you and Owner must each deliver to the other (with copies to ENGINEERand other identified additional insured’s) certificates of insurance which eachis required to purchase and maintain in accordance with the Contract Documents.

 

Alsobefore you may start any Work at the site, you must

 

***Add other requirements***
|                         | TOWN OF RANDOLPH                  |    |
|------------------------------|-----------------------------------|---------|
|                         | (OWNER)                           |
|                         |                              |
|                         | By:                               |    | Rodney  Koh |   |
|                         | (AUTHORIZED  SIGNATURE)           |
|                         |                              | Clerk   |   |
|                         | (TITLE)                           |
|                         |                              |
|                         | **NOTIFICATION TO PROCEED**       |
|                         |                              |
|                         | VOLKMANN  RAILROAD BUILDERS, INC. |    |
|                         | (CONTRACTOR)                      |
|                         |                              |
|                         | By:                               |    | Richard  Volkmann |   |
|                         | (AUTHORIZED  SIGNATURE)           |
|                         |                              | Pres    |   |
|                         | (TITLE)                           |
| COPY  TO ENGINEER            |                              |
| ***Use  Certified Mail,      |                              | 9/30/04 |   |
| Return  Receipt Requested*** | (DATE)                            |
|                              |                                   |         |  |  |  |

 

 

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