exv10w5



 




EXHIBIT 10.5





SERVICES CONTRACT



THE SERVICES CONTRACT (hereinafter the “Agreement””), is made this 13 day of July, 2005, by
and between R & R Contracting, Inc., a North Dakota corporation, (hereinafter “Engineer”), and Gold
Energy, LLC, a Minnesota limited liability company, (hereinafter “Owner”).




WITNESSETH:



WHEREAS Owner intends to develop, finance and construct an ethanol plant (hereinafter the
“Project”); and



WHEREAS Owner and wishes to engage Engineer to provide certain engineering and coordination
services related to the Project and Engineer desires to accept such engagement upon the terms and
conditions set out in this Agreement.



NOW THEREFORE Engineer and Owner for the considerations hereinafter named agree as follows:




ARTICLE 1. TERM — 



Engineer shall provide engineering and coordination services for the planning and preparation of
Request for Quotation (RFQ) documents related to the Project as described in Article 2 and shall do
everything required by this Agreement. Engineer’s engagement by Owner shall commence as of the
date of this Agreement and shall continue until the Work is satisfactorily completed unless this
Agreement is properly terminated as provided herein. Owner may terminate this Agreement at any
time, with or without cause, upon delivery of oral or written notice to Engineer indicating an
intention to terminate the Agreement. In the event, Owner exercises its right to terminate this
Agreement, Engineer shall be entitled to payment for Work actually rendered and completed prior to
such notice to terminate upon submission of reasonable documentation to Owner, but in no event
shall Engineer be entitled to an amount exceeding $4,200.00.




ARTICLE
2. SCOPE OF THE WORK —



The scope of the work (hereinafter the “Work”) shall include :



1. Assist Owner in selection of final plant site by sharing advice on each prospective site
regarding:





	 	a.	 	The suitability for the rail access to each site.
	 
	 	b.	 	The best preliminary layout of the rail access for the site.
	 
	 	c.	 	A preliminary estimate on the cost of the rail for each site on a comparable
basis from site to site.
	 
	 	d.	 	A preliminary estimate on the comparative cost that may be associated with the
rail bed preparation work in association with each site.




 









 






	 	e.	 	Any other issues of advantage or concern for each of the sites that may be
noticed by Engineer.




2. Develop track layout concept for the final selected site.





	 	a.	 	This to include a layout drawing of track on site plan.
	 
	 	b.	 	Perform a site survey of the selected site to collect all data necessary for
the final design.




3. Develop final design of trackage for the final selected site including:





	 	a.	 	Plans to include final grades, turn-outs, crossings, etc. on a design drawing
for appropriate railroad company’s approval.
	 
	 	b.	 	Plans, when completed, must meet all applicable appropriate railroad company’s
and FRA industry track standards.
	 
	 	c.	 	Plans to include typical track cross-sections as required for appropriate
railroad company’s approval.
	 
	 	d.	 	Obtaining required railroad company’s approval from appropriate railroad
company’s engineering that allows for the actual construction of the plan.
	 
	 	e.	 	Design to include plans for the construction of the track bed.




4. Assist Owner in securing competitive bids for the rail work on the final selected site by
providing a complete set of bid specifications and drawings to be used under the Owner’s name, no
reference to R & R Contracting, for the Owner’s distribution in RFQ’s for the rail work. These
documents should include, but not limited to, the following deliverables:





	 	a.	 	Final approved rail trackage design drawings.
	 
	 	b.	 	Typical track cross-section views as may be required to help Owner secure the
most competitive bid responses on both the rail work and the site grading work for the
final site.
	 
	 	c.	 	Preparation of a complete set of work specifications for the rail work to be
used for the RFQ documents in gaining the most competitive bid responses on the final
work.




5. Assist Owner in securing competitive bids for the earthwork, if a final earthwork contractor is
to be selected before a final rail work contractor, on the final selected site by providing the
following deliverables:





	 	a.	 	Prepare a complete set of earthwork and grading specifications required for the
rail work areas only, to be used by the Owner in RFQ documents for securing final
earthwork offers that meet the Engineer’s requirements.




All bid documents, for the purposes of this agreement, shall be issued under the Owner’s name with
no reference to Engineer, for the Owner’s distribution on RFQ’s for the rail work on this project.
Owner will accept all bids and evaluate bids with Engineer’s assistance. Engineer shall not be
required to obtain any city, state or federal permitting, negotiate any agreements between the
appropriate railroad company and the property owner nor perform design work associated with any new
or existing utility installation or adjustment required by the plans.




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ARTICLE
3. TIME OF COMPLETION — 



The Work including, but not limited to, the engineering, surveying, bid document generation,
budgeting, and railroad approval(s) required under this Agreement shall be commenced and completed
as required per Owner’s schedule.



Owner shall give Engineer a written one (1) week notice, minimum, of the required deadlines.
Engineer will be responsible to expedite the work for each deadline within the timeline given by
Owner with no undue delays on Engineer’s behalf.




ARTICLE
4. THE CONTRACT SUM & CONSIDERATION— 



The above described Work will be delivered by Engineer for a one-time lump sum payment of Four
Thousand Two Hundred dollars ($4,200.00) (hereinafter the “Lump Sum Payment”) to be paid by Owner
to Engineer within thirty days after the date Owner signs a contract with a contractor for the rail
work required on the Project (hereinafter the “Rail Work”). Engineer shall waive or refund the
Lump Sum Payment if Engineer is engaged by Owner to construct the Rail Work. No other charges will
be accepted for the Work.




ARTICLE
5. RIGHT OF FIRST REFUSAL —



If Engineer satisfactorily completes the Work and this Agreement is not otherwise terminated by
Owner in accordance with its terms, Engineer shall have a right of first refusal (hereinafter the
“ROFR”) as follows:





	1.	 	In the event that Owner receives a bid (hereinafter the “Offer”) from any person to construct
the Rail Work, which Owner is prepared to accept, the Owner shall send to Engineer notice in
writing of its desire or intention to proceed with the bid accompanied by a copy of the Offer.
	 
	2.	 	Upon receipt of notice, Engineer shall have fifteen (15) days from the date of receipt to
give Owner notice (hereinafter the “Intent to Match”) that it desires and agrees to match the
bid on the offered goods on the same terms and conditions as are contained in the bid,
provided that:






	 	a.	 	If Engineer shall have given an Intent to Match, Engineer shall construct the
described project referred to in the Offer;
	 
	 	b.	 	If Engineer shall not have given an Intent to Match within the time provided,
Engineer shall be deemed to have refused to match the Offer; and
	 
	 	c.	 	In the event that Engineer elects not to construct or match the Offer, then
Owner may accept the offer and proceed, but only at the price and on the terms and
conditions contained in the Offer.




3. In the event that Engineer elects not to match the Offer, and the project described in the Offer
proceeds forward with the design submitted by Engineer, Engineer will be compensated




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for the use of the plans in the described project in the amount of ten thousand dollars
($10,000.00) to be payable by Owner.



4. This Article 5 shall be binding upon the parties and their respective heirs, executors,
administrators and successors for a period beginning on the date of this Agreement ending on the
third
(3rd)
anniversary thereof. Notwithstanding anything in this Agreement to the
contrary, if Owner elects, at any time in its sole discretion, to pay Engineer the sum of ten
thousand dollars ($10,000.00), the ROFR will be terminated and Owner shall no longer have any
obligations to Engineer pursuant to this Article 5 and Owner shall have sole ownership of the plans
prepared by Engineer and may proceed to use the plans as it
chooses.




[Handwritten: Delete BK LN (R&R Contracting, Inc.)          

(Gold Energy LLC)]                    




ARTICLE
6. MISCELLANEOUS — 



This Agreement, together with any exhibits and attachments hereto and any documents incorporated
herein, constitutes the entire understanding between the parties concerning the subject matter
hereof. No prior or contemporaneous representations, inducements, promises or agreements not
contained herein are of any force or effect. This Agreement shall be governed by and construed in
accordance with North Dakota law, and shall not be modified except in a writing signed by all
parties. This Agreement is binding upon the parties and their heirs, representatives, agents,
successors and permitted assigns. Neither this Agreement or any parties’ rights, duties,
responsibilities or obligations shall be assigned by either party, in whole or in part, without the
prior written consent of the other party hereto. If any provision herein is held to be invalid,
unenforceable, or contrary to public policy, in whole or in part, the remaining provisions shall
not be affected. No omission or delay by either party in enforcing any right or remedy or in
requiring any performance hereunder shall constitute a waiver of any such right, remedy or required
performance, nor shall it affect the right of either party to enforce such provision thereafter.
The remedies set forth herein are cumulative and in addition to all other remedies available
hereunder, at law and in equity. The headings contained herein are for convenience only and shall
not be considered in interpreting or construing this Agreement. All covenants, warranties,
representations and indemnification obligations set forth in this Agreement shall survive the
termination or expiration hereof. This Agreement may be executed in counterparts, and facsimile
signatures shall be binding upon the parties.



IN WITNESS WHEREOF, the parties hereto have set their hands the day and year first above written.




	 	 	 	 	 	 	 	 	 
	ACCEPTED BY:
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Gold Energy, LLC	 	 	 	R & R Contracting, Inc.	 	 
	 

	 	 	 	 	 	 	 	 
	  /s/ Les Nesvig	 	 	 	/s/ Bruce Kopp	 	 
	 	 	 	 	 	 	 
	Les Nesvig, President

	 	 	 	Title
	 	V.P. & CFO	 	 






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