You are on page 1of 47

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT FOR POWER GENERATION PROJECT Dated July 4, 2000 Between the City

of Dreams, Dakota and Wombat Construction LLC

ENGINEERING, PROCUREMENT AND CONSTRUCTION AGREEMENT FOR POWER GENERATION PROJECT This Agreement is made and entered into this 4th day of July, 2000, between the City of Dreams, Dakota, a municipal corporation (the "City") and Wombat Construction LLC, a Delaware limited liability company ("Developer"). City and Developer are sometimes individually referred to as "Party" and collectively as "Parties". RECITALS The City has determined, subject to the terms and conditions of this Agreement, to acquire an electrical generating facility, as generally described in the Scope of Work attached hereto, to be engineered, procured and constructed in Dreams, Dakota, and requires the services of a developer for the project that is experienced in engineering, permitting, procuring, installing and commissioning of a simple cycle electric generating facility; and The Developer has submitted a proposal in response to City's Request to engineer, permit, procure and construct the proposed generating facility; and The Developer has submitted a preliminary progress Schedule to City which City has reviewed and approved; and The City desires to have Developer perform or cause to be performed for City all engineering, permitting, procurement and construction services related to the project pursuant to the terms of this Agreement; and The City desires to utilize private sector investment capital of Developer in connection with the Project. For example, and not by way of limitation, this Agreement provides for the initial acquisition of the Project Site by Developer, and it is also contemplated that Developer will make the initial investment in connection with the Emissions Reduction Credits required for the Project, which Emissions Reduction Credits will be made available to the City and will be paid for pursuant to an Operation and Maintenance agreement to be entered into between the City and Developer or an affiliate of Developer. NOW, THEREFORE, in consideration of the mutual obligations and undertakings herein contained, and intending to be legally bound hereby, the Parties hereto agree as follows: 1. Definitions. 1.1 Agreement. This Engineering, Procurement and Construction Agreement for Power Generation Project between the City of Dreams and Wombat Construction LLC, includes all Appendices and Exhibits attached hereto, as they may be amended or supplemented in writing from time to time.

1.1.a Authorization. Any license, permit, approval, clearance, entitlement, allowance, franchise, notification, consent, registration, qualification, declaration, filing or other authorization, whether private, governmental or otherwise; or any zoning, subdivision, or similar land use ordinance of any governmental authority. 1.2 Bonds. The Performance and Payment Bonds required pursuant to Dakota State Law Section 3247-3248 and Section 16 hereinafter. 1.2.a DEQA. Section 21000 Seq. The Dakota Environmental Quality Act, Public Resources Law

1.3 Change Order. A written document signed by City's Authorized Representative, which authorizes an addition, deletion, or revision in the Work or an adjustment in the Completion Date or Contract Price, issued on or after the Effective Date of this Agreement. 1.4 The City of Dreams, Dakota, a Dakota municipal corporation, acting by and through its Electric Department. 1.5 City's Representative. A person designated in writing to act as City's agent with respect to Developer's performance of the Work and who will be available to consult with Developer regarding matters arising under the Agreement and the Contract Documents at all times during the term of this Agreement. Such person shall have complete authority to transmit instructions, receive information, and make binding decisions with respect to performance of the Work, and execute Change Orders on behalf of the City. The City hereby designates its Utility Director as the City's Representative. 1.6 Construction. The performing or furnishing of labor, the furnishing and incorporating of materials and equipment into the Work and the furnishing of services and documents for the Work, all as required by the Contract Documents. 1.7 1.8 Construction Phase. The phase of the Work including Construction. Intentionally Left Blank.

1.9 Contract Documents. This Agreement, Exhibits A through I inclusive, the approved Plans and Specifications, Standard Specifications, the Bonds, Change Orders. 1.10 Contract Price. The aggregate amount payable by City to Developer under this Agreement, i.e. the sum of the separate prices for the Engineering, Procurement and Construction Phases. 1.11 1.12 company. Days. Unless otherwise specified shall mean calendar days. Developer. Wombat Construction LLC, a Delaware limited liability

1.13 Developer's Representative. A person designated in writing to act as Developer's agent with respect to this Agreement. Such person shall have complete authority to transmit instructions, receive information and execute Change Orders on behalf of Developer. Developer hereby designates it's Senior Vice President of Energy Infrastructure as Developer's Representative. 1.14 5.9. 1.15 Effective Date. The date identified in the caption to this Agreement. Developer's Taxes Those taxes described as Developer's Taxes in Section

1.16 Engineering Phase. The phase of the Work including Engineering Services, Environmental Services, and Project Management Services. 1.17 Engineering Services. Services of Developer related to the preparation of Plans and Specifications, and other design submittal specified by the Contract Documents and required to be performed by licensed design professionals describing and detailing the Project and providing criteria for the detailed design by suppers of equipment, materials and systems to be incorporated into the Project, as set forth in Dakota Government Law 4525(d). 1.18 Environment shall mean soil, surface waters, ground waters, land, stream sediments, surface or subsurface strata, ambient air, and/or any environmental medium. 1.19 Environmental Condition shall mean any condition with respect to the Environment on or off the Project Site, whether or not ret discovered, which results or could result in the imposition of any cost, expense, damage, fine, penalty, liability or other loss on Developer or the City by any governmental authority or other third party, including the presence of polychlorinated biphenyls or substances containing polychlorinated biphenyls on the Project Site, and including any condition resulting from or attributable to any other property in the vicinity of the Project Site and/or any activity or operation formerly conducted by any person or entity on or off the Project Site. 1.20 Environmental Services. Services of Developer performed in connection with project development and Authorization processing in order to comply with federal and state environmental laws, as set forth in Dakota Government Law 4525(f). 1.21 Excluded Cost. A cost, expense or liability associated with the Project, which is not included in the Contract Price and for which Developer and Subcontractors are not entitled to payment, reimbursement or any form of compensation, from City pursuant to the Contract Documents. 1.22 Final Completion. The date on which the following have occurred: (a) Mechanical Completion, (b) Substantial Completion, and (c) completion of Developer's obligations with regard to the Punch List created pursuant to the Scope of Work and (d) institution of functional automatic generation control with Dakota Independent System Operator (or its successor).

1.22.a Final DEQA Compliance. The process mandated by DEQA shall have been filly complied with, in a manner reasonably satisfactory to Developer, and either (A) all appeals or other challenges of such permit have been resolved to Developer's satisfaction, or (B) the time for filing appeals or other challenges to such permit has expired with no appeal or other challenge having been filed. 1.22.b Final Validation Decision. A decision in the Validation Action reasonably satisfactory to Developer has been issued and either (A) all appeals or other challenges of such decision have been resolved to Developer's satisfaction, or (B) the time for filing appeals or other challenges to such decision has expired with no appeal or other challenge having been filed. 1.23 Force Majeure Event. The occurrence of: labor disputes or problems, including, but not limited to, strikes, slowdowns, job actions, picketing, and secondary boycotts; delay in transportation; fire or other casualty loss; severe weather; acts of God; acts of declared or undeclared war or public disorder, riot, or civil commotion; epidemics; or any other event beyond the reasonable control of the Party asserting the Force Majeure Event. Solely with respect to Developer, Force Majeure shall also include the following: (i) the receipt of a Final Validation Decision after the anticipated date for such receipt as set forth in the Schedule of Values, to the extent that such delay is not the fault of Developer; (ii) the completion of the issuance of the Municipal Bonds, and the availability of the proceeds thereof for payments pursuant to this Agreement, after the anticipated date therefor as set forth in the Schedule of Values, to the extent that such delay is not the fault of Developer; (iii) the delivery of Major Equipment after the date on which such equipment was expected to be delivered, as set forth n the Progress Schedule, to the extent that such delay is not due to delay in ordering Major Equipment by Developer or other fault of Developer; and (iv) delay in achieving an interconnection between the Project and the City's electrical system, water system, or other utility systems, and delay in achieving an interconnection between the Project and Southern Dakota Gas Company's system, sufficient to permit Construction, testing, operation and maintenance of the Project, beyond the date specified in the Progress Schedule, to the extent that such delay is not attributable to actions or failure to act by Developer. 1.24 Gas Turbine Generator Unit. The gas turbine generator described in the Scope of Work. 1.25 Grant Deed. The grant deed conveying all of Developer's right, title and interest in the Work, the Project, and the Project Site to City. 1.26 Hazardous Condition. Hazardous, dangerous, or toxic materials,

substances, conditions, elements, pollutants, irritants or contaminants of any kind, including without limitation smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste, including but not limited to those so defined in any law, ordinance, rule, or regulation. 1.27 Laws and Regulations; Laws or Regulations. Any and all applicable laws, rules, regulations, ordinances, codes and orders of any and all governmental entities, bodies, agencies, and authorities (including without limitation, all federal state, local, and City laws, rules, regulations, ordinances, codes, resolutions and orders), and courts having jurisdiction. 1.28 Major Equipment. The following major equipment components of the Project: the Gas Turbine Generator Unit, electrical switchgear, transformers, emissions control equipment, exhaust silencers, and supervisory control and data acquisition ("SCADA") equipment. 1.29 Mechanical Completion. The date when all materials and equipment for the Project (except for minor portions of the Work not affecting the operability or safety of the Project) have been installed substantially in accordance with the Plans and Specifications and all systems necessary for power generation are ready to Commence performance testing required by the Scope of Work. 1.30 Milestone. A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work. 1.30.a Municipal Bonds. Bonds issued by the City the proceeds of which will be used to pay for the Project. 1.31 Option Agreement. That certain Option Agreement between the City and James and Frances Beckett that permits the City to purchase the Project Site. 1.32 Plans. The drawings, profile, cross sections, working drawings, and supplemental drawings, or reproductions thereof, provided by Developer to City, which show the location, character, dimensions, or details of the Work. 1.33 Services. Procurement Phase. The phase of the Work including Procurement

1.34 Procurement Services. Services of Developer related to ordering, tracking, expediting delivery of, receiving and storing Major Equipment (i.e., the Gas Turbine Generator Unit, electrical switchgear, transformer$, emissions control equipment, exhaust silencers, SCADA) and any other long lead time equipment and materials. 1.35 Progress Schedule. A tabulation, chart or graph submitted by Developer and approved by City, that subdivides the Work into phases and component parts and serves as the basis for establishing Milestones for submitting, reviewing processing and approving Submittals, for performance of the Work, and for depicting the chronological relationship of principal activities of the Project. The initial Progress Schedule is attached

hereto as Exhibit D. 1.36 Project. The electrical generating facility consisting of one individual generator unit and appurtenant facilities, to be engineered, procured and constructed by Developer, at the Project Site in Dreams, Dakota, as required by the Contract Documents and more fully described in Exhibit E. 1.36a Project Management Services. Services of the Developer related to project design review and evaluation, construction mobilization and supervision, bid evaluation, project scheduling, cost benefit analysis, claims review and negotiation, and general management and administration of a construction project, as set forth in Dakota Government Law 4525(e) and 4529.5. 1.37 Project Site. The property to be acquired by Developer, generally located east of Aqua Mini Road and south of the City's wastewater facility in Dreams, Dakota and more particularly described in Exhibit P. 1.38 Project Taxes Those taxes described as Project Taxes in Section 5.9.

1.39 Punch List. The list of items of defective or incomplete work to be corrected by Developer following Substantial Completion in order to achieve Final Completion. 1.40 1.41 Retention. Those sums described in Section 7.4. Schedule of Values. The schedule attached hereto as Exhibit G.

1.42 Scope of Work. The document entitled "Scope of Work" which is attached hereto as Exhibit F!. 1.43 Specifications. Those portions of the Contract Documents prepared by or for Developer and approved by City consisting of written technical descriptions of materials, equipment, construction systems, standards and workmanship as applied to the Construction and certain administrative details applicable thereto. 1.44 Standard Specifications. The following sections of the 1997 Edition of the "STANDARD SPECIFICATIONS FOR PUBLIC WORKS CONSTRUCTION": 1.1 Terms; 1.2 Definitions (except as such definitions are modified herein), 1.3 Abbreviations, 1.4 Metric International System, 25.3 Shop Drawings and Submittals, 26 Work to be Done, 27 Subsurface Data, 28 Right of Way, 29 Surveying, 211 Inspection, 31 Changes Requested by the Contractor, 33 Extra Work, 34 Changed Conditions, 35 Disputed Work, 41 Materials and Workmanship, 52 (Utilities) Projection, 55 Delays, 56 Cooperation, 63 Suspension of Work, 61 General, 62 Archeological and Paleontological Discoveries, 64 Default by Contractor, 65 Termination of Contract, 66 delays and Extensions of Time, 66.1 General (except no delay damages except for those delay damages that are set forth in this Agreement), 66.2 Extensions of Time, 67 Time of Completion, 67.1 General, 62.1 Labor General, 79 Protection and Restoration of Existing Improvements, and 710 Public Convenience and Safety.

1.45 Subcontractor. Any person or entity with whom Developer has entered into any subcontract, purchase order, or other agreement for such person or entity to perform any part of the Work or to provide any materials, equipment or supplies on behalf of Developer (including any person or entity at any tier with whom any Subcontractor has further subcontracted any part of the Work). 1.46 Submittal. A writing or graphic prepared by or for Developer that is required by the Scope of Work as a deliverable or in the Contract Documents to be submitted to City by Developer. Submittals may include without limitation Plans, drawings, Specifications, revisions to the Progress Schedule or the Scope of Work, shop drawings, reports and samples. 1.47 Substantial Completion. The date that all of the following have occurred: (a) Mechanical Completion, (b) the Project is substantially complete in accordance with the Scope of Work and can be safely operated for Its intended purpose, and (c) all of the performance tests required by the Scope of Work have been successfully completed, as established pursuant to Section 9. 1.48 Substantial Completion Target Date. The date of Substantial Completion determined in accordance with Section 9.1 of this Agreement. 1.49 the City. 1.50 Turnover. The conveyance of the Project Site and the completed Work to Validation Action. The proceeding described in Section 6.10.

1.51 Work. The engineering, procurement, construction and other services required by the Contract Documents. 1.52 Rules of Interpretation. The following rules of interpretation of this Agreement shall apply unless otherwise specified in this Agreement or unless the context otherwise requires: (i) Words of any gender include each other gender. (ii) Using the singular or plural number also includes the plural or singular number, respectively. (iii) Any reference to any person in any capacity includes a reference to its successors and permitted assigns in such capacity and in the case of any governmental authority, any person succeeding to its functions and capacities. (iv) The terms "hereof," "herein," "hereto," "hereunder" and words of similar or like import refer to this entire Agreement and not to any particular Article, Section, Exhibit, or other subdivision of this Agreement. (v) References to a particular "Article," "Section," or "Exhibit" are, unless otherwise noted, references to that Article or Section of, or Exhibit to, this Agreement.

(vi) The words "include," "includes" and "including" shall be deemed to be followed by "without limitation" or "but not limited to." (vii) Unless reference is made to a Law or Regulation as of a specific date, references to any Law or Regulation shall be construed as a reference to such Law or Regulation as in effect from time to time. (viii) References to any agreement or document (including this Agreement) shall include all exhibits, schedules, appendices, and other attachments thereto. (ix) References to (a) days shall refer to calendar days unless business days are specified, (ii) weeks and months shall refer to calendar weeks and months, respectively and (iii) years shall refer to calendar years unless otherwise specified. (x) All accounting terms used but not expressly defined herein shall have the meanings given to them under GAAP and as may be appropriate to the books, records and accounts established and maintained in accordance with this Agreement. (xi) In computing any period of time prescribed or allowed under this Agreement, the day of the act, event or default from which the designated period of time begins to run shall be included. 2 Phasing.

2.1 The Work will consist of three phases: the Engineering Phase, the Procurement Phase and the Construction Phase. In general, the three phases will proceed in the order of Engineering first, Procurement second, and Construction third, although there will be some overlap. 2.2 Each phase will be priced separately, and the Contract Price will be the sum total of the three separate prices, as detailed in Section 7.1. 2.3 The City shall pay Developer for the Engineering Phase out of general obligation funds currently held by the City. The City shall pay Developer for the Procurement and Construction Phases out of proceeds from the sale of the Municipal Bonds. Should the provisions of this Agreement relating to the Procurement Phase be held invalid, the City's obligation to pay Developer for costs incurred in the performance of the Engineering Phase shall survive. Should the provisions of this Agreement relating to the Construction Phase be held invalid, the City's obligation to pay Developer for costs incurred in the performance of the Engineering Phase and the Procurement Phase shall survive. 2.4 DEQA Compliance. The requirements of DEQA shall be satisfied before commencement of the Procurement Phase. The City shall provide appropriate documentation demonstrating that it is in compliance with DEQA. In its capacity as the developer of the Project, Developer shall assist in completion of Final DEQA Compliance.

2.5 In the event that Developer commences procurement of any Project components prior to the issuance of the Municipal Bonds, and in the event that the Municipal Bonds are not subsequently issued by the City, Developer shall be entitled to retain any such component for which Developer is not actually reimbursed by the City. 3 Commencing the Work.

3.1 Subject to Section 3.2, Developer shall begin performing the Engineering Phase of the Work as soon as practicable after the Effective Date. 3.2 Notwithstanding the foregoing, Developer's obligations under this Agreement are expressly subject to the fulfillment of the conditions listed below, in form and substance satisfactory to Developer in Developer's reasonable discretion; provided that Developer may waive any such condition or may extend the date for fulfillment of any such condition. In the event that any such condition shall not have been fulfilled by the date indicated (as such date may be extended), Developer may, but shall not be obligated to, terminate this Agreement, or one or more phases of this Agreement, at its option, without further obligation: i. No later than thirty (30) days after the Effective Date, Developer and the City shall have entered into a mutually agreeable Operation and Maintenance Agreement pursuant to which Developer will operate and maintain the Project on behalf of the City. ii. No later than thirty (30) days after the Effective Date, Developer shall have entered into an option to purchase the Project Site directly from James and Frances Beckett meeting the requirements of Section 5.2. 3.3 Developer shall notify the City of the satisfaction, extension, or waiver of each of the conditions precedent listed in Section 3.2. Developer's obligations hereunder shall commence upon the satisfaction or waiver of the last such condition precedent. 4 Contract Documents, Intent, Amending Use. 4.1 Intent.

4.1.1 The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The Contract Documents will be construed in accordance with the laws of the State of Dakota. 4.1.2 It is the intent of the Contract Documents to describe a functionally complete Project to be engineered, procured and constructed in accordance with the Contract Documents. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage and that is necessary to complete the Work will be furnished and performed by Developer. 4.1.3 In the event there are any conflicting provisions or requirements in the component parts of the Agreement and the Contract Documents, the Contract Documents

and Agreement components shall take precedence in the following order: Amendments to the Agreement and Change Orders, in reverse chronological order. The Agreement Appendices and Exhibits to Agreement Standard Specifications 4.2 References.

4.2.1 Reference to standards, specifications (except the Standard Specifications), manuals or codes of any technical society, organization or association, or to the Laws or Regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard, specification, manual, code or Laws or Regulations in effect at the time of the Effective Date of the Agreement except as may be otherwise specifically stated in the Contract Documents. 4.2.2 No provision of any such standard, specification, manual, code or instruction shall be effective to change the duties and responsibilities of City, Developer or any of their Subcontractors, consultants, agents, or employees from those set forth in the Contract Documents, nor shall it be effective to assign to City any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents. 5 Developer's Responsibilities.

5.1 General. As set forth in the Scope of Work and in conformity with the Contract Documents, Developer shall render or cause to be rendered, the engineering, permitting, procurement, construction, delivery, erection, commissioning, startup, and testing of the complete Work for the Project consisting of the performance of all Engineering Services, Environmental Services, Procurement Services, Project Management Services and Construction Services required by the Contract Documents, including without limitation all necessary services, materials, equipment, machinery, tools, labor, supervision, supplies, chemicals, transportation and structures, and including those things reasonably inferable from the Contract Documents and necessary to complete the Work even though no mention thereof is expressly made in the Contract Documents. 5.2 Purchase of Project Site.

5.2.1 Developer shall obtain title to the Project Site directly from James and Frances Beckett, the present owners of the Project Site. 5.2.2 Developer shall not under any circumstances be required to purchase the Project Site prior to the later of (i) the date that the proceeds of the Municipal Bonds become available to Developer for such purpose, (ii) the date that a Final Validation Decision is received, and (iii) the date that Final DEQA Compliance is completed. 5.2.3 Developer shall be responsible for the payment of all property taxes for the Project Site related to the period during which Developer owns the Project Site.

5.2.4 In the event that this Agreement terminates for any reason prior to Substantial Completion, then, in addition to any amounts payable to Developer pursuant to Section 17, Developer shall have the right to require the City to repurchase the Project Site for the same amount paid by Developer, plus any document fee or similar charges paid in connection with the purchase of the Project Site and any property or other taxes, and any interest and other carrying charges incurred by Developer as a result of its ownership of the Project Site. 5.3 Developer's Expertise. Developer represents that it has the requisite expertise and skill to undertake the performance of the Work. 5.4 Engineering Services.

5.4.1 General. Developer shall render or cause to be rendered the Engineering Services set forth in the Scope of Work in accordance with the terms and conditions of the Contract Documents and the Progress Schedule. 5.4.2 Standard of Care. The standard of care for Engineering Services shall be the care and skill ordinarily used by members of the engineering or architectural profession practicing under similar conditions at the same time and locality. 5.4.3 Developer Responsibility. As between the Parties, Developer shall be solely and totally responsible for the engineering of the Project, the professional quality, technical accuracy, feasibility, and the coordination of all designs, Drawings, Plans, Specifications, and other Engineering Services required by the Contract Documents; provided, however, that Developer shall not be responsible for the design, technical accuracy, feasibility or coordination of any element incorporated into the Project pursuant to Section 12.4. City has furnished and may continue to furnish Developer with written technical information regarding the City's existing electric system as necessary to provide Developer the references needed to properly integrate the Project into the existing electric facilities. Developer shall have no liability for defects in the Work attributable to Developer's reasonable reliance upon or use of such written data, design criteria, drawings, specifications, or other written information furnished by City or City's authorized agents. 5.5 Environmental Services.

5.5.1 General. Developer shall render or cause to be rendered the Environmental Services required to obtain the Authorizations necessary for accomplishment of the Project. 5.5.2 Standard of Care. The standard of care for Environmental Services shall be the care and skill ordinarily used by members of the environmental consultant profession practicing under similar conditions at the same time and locality. 5.6 Procurement Services. Developer shall order in its name and not as agent for City, the Gas Turbine Generator Unit and other Major Equipment (i.e., electrical

switchgear, transformers, emissions control equipment, exhaust silencers, SCADA) and other long lead time equipment and materials required for the Project. Developer shall track, expedite, receive, store and pay for said equipment. 5.7 Project Management Services.

5.7.1 General. Developer shall perform or cause to be performed Project Management Services, including design review and evaluation, construction mobilization and supervision, bid evaluation, project scheduling, cost benefit analysis, claims review and negotiation, and general management and administration of a construction project, as set forth in Exhibit H and in conformity with the Contract Documents. 5.7.2 Supervision of Construction. 5.7.2.1 Developer shall supervise, inspect and direct the Construction competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Construction in accordance with the Contract Documents. Developer shall be solely responsible for the means, methods, techniques, sequences and procedures employed for the Construction. Developer shall be responsible to see that the complete Construction complies accurately with the Contract Documents and shall keep City advised as to the quality and progress of the Construction. 5.7.2.2 Developer shall keep on the Project Site at all times during Construction a competent resident superintendent, who shall not be replaced without written notice to City except under extraordinary circumstances. All communications to the superintendent shall be as binding as if given by Developer. 5.8 Construction.

5.8.1 Developer shall provide, or cause to be provided, competent, suitably qualified labor to survey and layout the Construction and perform Construction as required by the Contract Documents. Developer shall provide sufficient labor to maintain the prosecution of the Work in accordance with the Progress Schedule and Contract Documents. Developer shall at all times maintain good discipline and order at the Project Site. Except as otherwise required for the safety or protection of persons or the Work or property at the Project Site or adjacent thereto, and except as otherwise indicated in the Contract Documents, authorized by the City, or specified by Developer in a prior written notice to the City, all Construction at the Project Site shall be performed between the hours of 5:00 am. and 7:00 p.m., Monday through Saturday unless directed otherwise by the City. 5.8.2 Except as otherwise specified in the Contract Documents, Developer shall furnish or cause to be furnished and assume full responsibility for materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, heat, telephone, water, sanitary facilities, temporary facilities and all other facilities, incidentals, and all other things necessary for the furnishing, performance, testing, startup and completion of the Work.

5.8.3 All materials and equipment incorporated into the Work shall be of good quality and new, except as otherwise provided in the Contract Documents. All warranties and guarantees specifically called for by the Contract Documents shall expressly run to the benefit of City. If required by City, Developer shall furnish reasonably satisfactory evidence (including reports of required tests) as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable supplier, except as otherwise provided in the Contract Documents. 5.9 Taxes. Developer understands that its performance of the Work will constitute doing business in the City of Dreams, and it shall, therefore, obtain a City Business License pursuant to Chapter 5.02 of the Dreams Municipal Law. Developer shall pay all payroll and other related employment compensation taxes for Developer's employees, federal, state and other taxes which may be assessed on Developer's Income from the Project, engineering and business license costs, and property taxes on Developer's construction equipment (collectively, the "Developer's Taxes"). The Developer's Taxes shall be Excluded Costs. Developer shall administer and pay, or cause to be paid all sales, use, gross receipts and excise taxes directly related to Developer's Work; transfer taxes associated with Developer's acquisition and transfer to the City of the Project Site, and Property Taxes on the Project Site applicable to the period when Developer owns the Project Site (collectively, the "Project Taxes"). Contract Price, which shall be paid by City, includes Project Taxes and excludes Developer's Taxes. 5.10 Progress Schedule.

5.10.1 Time is a material element in the performance of this Agreement. Developer shall at all times adhere to and diligently prosecute the Work in accordance with the Progress Schedule and complete the Work within the designated Milestones and any deadlines in the Contract Documents. 5.10.2 Developer shall be responsible for the preparation, maintenance, and updating of the Progress Schedule and other scheduling information in accordance with the Progress Schedule requirements set forth in Section 9. 5.10.3 Proposed adjustments in the Progress Schedule that will delay the Completion Date shall only be made by a Change Order. 5.11 Subcontracting.

5.11.1 Developer may subcontract any portion of the Work required by this Agreement, without prior written approval of City. Subcontracts, if any, shall contain a provision making them subject to all applicable provisions in this Agreement. 5.11.2 Developer shall be fully responsible to City for all acts or omissions of the Subcontractors and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Developer. Nothing in the Contract Documents

shall create, for the benefit of any such Subcontractor or other individual or entity, any contractual relationship between City and any such Subcontractor or other individual or entity, nor shall it create any obligation on the part of City to pay or to see to the payment of any moneys due any such Subcontractor or other individual or entity except as may otherwise be required by Laws and Regulations. Developer shall be solely responsible for all payments and compensation due to any Subcontractor. As further set forth in this Agreement, Developer shall take all action necessary to prevent and/or release any liens, stop notices or other encumbrances that may be imposed or threatened against the Project or Project Site by subcontractors. 5.11.3 Developer shall be solely responsible for scheduling and coordinating Subcontractors and other individuals aid entities performing or furnishing any of the Work under contract with Developer. Developer shall require all Subcontractors and such other individuals and entities performing or furnishing any of the Work to communicate with City through Developer. 5.11.4 All services performed or provided to and material and equipment supplied to Developer by a Subcontractor will be pursuant to an appropriate agreement between Developer and the Subcontractor, or supplier. Each such agreement for an amount in excess of $10,000 in any year shall incorporate the terms of the Contract Documents to the extent applicable to the Work to be performed by the Subcontractor and shall specifically bind the Subcontractor to the agreement, shall expressly preserve and protect the rights of City under the Contract Documents and shall include a provision granting City the right to succeed to the interest of, or otherwise accept an assignment of such agreement in the event of a termination of this Agreement by City due to a default by Developer. 5.11.5 Developer shall require that all Subcontractors for Construction of the Project shall comply with the Subletting and Subcontracting Fair Practices Act (Sections 4100 through 4114 of the Dakota Public Contracts Law) where applicable. 5.12 Work Force and Equipment. Developer shall maintain and shall cause any Subcontractors to maintain, at all times, a work force and equipment capable of performing the Work that is the subject the relevant Subcontracts. 5.13 Laws and Regulations.

5.13.1 Developer shall give all notices and comply with all Laws and Regulations which are applicable to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, City shall not be responsible for monitoring Developer's compliance with any Laws and Regulations. 5.13.2 If Developer performs any Work that is contrary to Laws or Regulations, Developer shall bear all costs arising therefrom and such costs shall be deemed Excluded Costs. 5.14 Record Documents. Developer shall maintain or cause to be maintained in a safe place at the Project Site one record copy of all Plans, Drawings, Specifications,

Addenda, and, within a reasonable time after their preparation, Change Orders, in good order and annotated to show all changes made during Construction. These record documents together with all approved Submittals will be available to City for reference. Upon completion of the Work, these record documents and Submittals, including a reproducible set of record drawings, will be delivered to City. 5.15 Safety and Protection.

5.15.1 Developer shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Construction. Developer shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 5.15.1.1 Construction; All persons on the Project Site or who may be affected by the

5.15.1.2 All Work and materials and equipment to be incorporated therein, whether in storage, on or off the Project Site; and 5.15.1.3 Other property at the Project Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities and underground facilities not designated for removal, relocation or replacement in the course of Construction. 5.15.2 Developer shall comply with all applicable Laws and Regulations relating to worker health and safety in performing the Work. Developer shall require its Subcontractors to comply with all such Laws and Regulations during the performance of the Work. 5.15.3 Developer shall notify owners of adjacent property and of underground facilities and utility owners, with the exception of City for facilities within the Project Site, when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation and replacement of their property. All damage, injury or loss to any property caused, directly or indirectly, in whole or in part, by Developer, any Subcontractor or any other individual or entity directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, shall be remedied by Developer. Developer's duties and responsibilities for safety and for protection of the Construction shall continue until recordation of the Grant Deed, except with respect to any Punch List item, as to which Developer's duties and responsibilities for safety and for protection of the Construction shall continue until completion of such item. 5.16 Safety Representative. Developer shall designate a qualified and experienced safety representative at the Project Site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. The Developer's Representative may serve in the role of safety representative without the necessity of additional individual to the Project Site. 5.17 Hazard Communication Programs. Developer shall be responsible for

coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Project Site in accordance with Laws and Regulations. 5.18 Hazardous Conditions. Except as provided in Sections 11.4, 13.4.2 or 13.4.3, Developer shall be responsible for any Hazardous Condition at the Project Site that is caused, in any way, by any action or inaction of Developer, its Subcontractors or anyone else acting on behalf of Developer or for whom Developer is responsible. 5.19 Emergencies. In emergencies affecting the safety or protection of persons or the Construction or property at the Project Site or adjacent thereto, Developer, without special instruction or authorization from City, shall be obligated to act to prevent threatened damage, injury or loss. Developer shall give City prompt written notice if Developer believes that any significant changes in the Construction or variations from the Contract Documents have been caused thereby. In the event that any such change results in a change to the Project that increases Developer's costs (including interest or other carrying charges), Developer shall be entitled to a Change Order pursuant to Section 10.3 to compensate it for such increased costs. 5.20 Prosecution of the Work. Developer shall diligently carry on the Work and adhere to the Progress Schedule during all disputes, claims, and/or disagreements with City. Developer agrees that no Work shall be delayed or postponed pending resolution of any such disputes, claims and/or disagreements, which claims, disputes and/or disagreements shall be resolved in accordance with Section 27 of this Agreement, provided that all amounts that are not subject to a good faith claim, dispute or disagreement are paid in full in a timely manner. 5.21 Submittals.

5.21.1 Developer shall provide City with the Submittals for City's review and approval. Within ten (10) Days of the date Developer provides any Submittal, City shall approve and return the Submittal to Developer, or shall return the Submittal with comments identifying the specific reasons the Submittal has not been approved. In the event a Submittal is returned with comments to Developer within the ten-Day period, Developer and the City shall meet to discuss in good faith the City's comments on the Submittal. In the event that any such comments result in a change to the Project that increases Developer's costs (including interest or other carrying charges) or increases the time required to perform the Work, Developer shall be entitled to a Change Order pursuant to Section 11.3 to compensate it for such increased costs. Failure of the City to return any Submittal with comments within ten Days of its submission will result in the Submittal being deemed approved. City's review and approval will be only to determine if the terms covered by the Submittals will conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. City's review and approval will not extend to means, methods, techniques, sequences or procedures of construction or to safety precautions or programs incident thereto, except as specifically provided for in this Agreement.

5.21.2 City's review and approval of required Submittals shall not relieve Developer from responsibility for any variation from the requirements of the Contract Documents unless Developer has in writing called City's attention to each such variation at the time of submission and City has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Submittal. 5.22 Subject to the precedence clause at Section 1.3, Developer shall comply with all other applicable terms and conditions of the Contract Documents 5.23 Subject to the precedence clause at Section 1.3, Developer shall comply with and perform the Work in accordance with the Standard Specifications applicable to the Work pursuant to this Agreement. 5.24 Subject to the terms of Exhibit A, Developer shall secure and maintain at all times all Authorizations necessary to perform the Work, including, but not limited to, air quality permits. Authorizations shall be obtained in the City's name, except where by law or practice, an Authorization is required to be in the name of the City and the Developer. Developer shall be responsible for the payment of all fees for such Authorizations To the extent that any Authorization acquired in Developer's name will be required in connection with the ownership, operation or maintenance of the Project following Substantial Completion, Developer shall transfer such Authorization to the City upon Substantial Completion. 5.25 As soon as practicable after Final Completion, Developer will provide City with a complete set of as built drawings, including, at a minimum, general arrangement drawings, loop flow diagrams, instrumentation and control schematics, electrical single line drawings, and underground structures and piping layouts. 6 City's Responsibilities

6.1. City shall pay Developer the Contract Price, in accordance with the Schedule of Values attached as Exhibit G to this Agreement. 6.2 The City presently has an option to purchase the Project Site pursuant to the Option Agreement. City shall ensure that, upon the expiration of the Option Agreement, James and Frances Beckett, the present owners of the Project Site, grant Developer an option to purchase the Project Site on the same terms set forth in the Option Agreement (except as otherwise set forth in this Section 6.2), which option will not expire prior to the later of (i) the time when the proceeds of the Municipal Bonds become available to Developer, (ii) the receipt of a Final Validation Decision, (iii) the completion of Final DEQA Compliance, and (iv) the groundbreaking at the Project Site. The option to be provided to Developer (x) shall provide for a credit against the purchase price for all option consideration paid by Developer, (y) shall require that the Project Site be conveyed to the Developer, upon exercise of the option, free and clear of all liens, encumbrances and title exceptions, except for easements existing on the date that the Option Agreement was entered into and liens for taxes not due and payable at the time the Project Site is transferred to Developer, and (z) shall not provide for the leaseback of any portion of the Project Site to the present owners of the Project Site.

6.3 Developer.

Communications. City shall communicate with Subcontractors only through

6.4 Taxes and Duties. Where applicable, City shall furnish to Developer, within thirty (30) Days of the Effective Date, a certificate complying with state and local governmental law, regulations and ordinances identifying any components of the Work to be considered exempt from the Project Taxes. Developer shall cooperate with City to establish appropriate procedures and minimize the amount of such taxes to the extent reasonable and practical. 6.5 Safety Responsibilities. City shall not supervise, direct or have control or authority over, nor be responsible for, Developer's means, methods, techniques, sequences or procedures of Construction or the safety precautions and programs incident thereof, or for any failure of Developer to comply with Laws and Regulations applicable to the furnishing or performance of the Work. City will not be responsible for Developer's failure to perform or furnish the Work in accordance with the Contract Documents. 6.7 Utilities. City shall furnish or have furnished, at no cost to Developer, electricity, natural gas, communications, and water for Construction to a single point on the Project Site and Developer shall be responsible for further routing of electricity, natural gas, communications, and water for Construction of the Power Generation Facility from the point furnished by City. The City shall furnish fuel for testing, and any revenues attributable to electricity generated during testing shall be for the account of the City. 6.8 Leases and Easements. City shall secure all leases and easements necessary for the design, permitting, Construction, operation or maintenance of the Project. The City shall also secure the release or modification of all easements on the Project Site, when, as and to the extent necessary to avoid interference with the design, permitting, Construction, operation or maintenance of the Project. Developer shall provide reasonable assistance to City in connection with actions necessary to determine and obtain the necessary leases and easements 6.9 Interconnection. City shall take all steps necessary to enable Developer to interconnect with the City's electrical system and water system and with Southern Dakota Gas Company's gas system in accordance with the Scope of Work. 6.10 Validation Action; DEQA Permit. As soon as practicable after the approval of this Agreement by the City Council, the City shall institute a validation action pursuant to Dakota State Law 860 et seq. (the "Validation Action"). Developer shall provide assistance to City in drafting said validation action, at Developer's expense. Developer shall not be obligated to commence performance of the Procurement or Construction phases until the Final Validation Decision and Final DEQA Compliance have occurred. 6.11 Water Supply Agreement. The City shall secure an agreement with the water department for the supply of reclaimed water and process water discharge necessary for the Construction, testing, operation and maintenance of the Project on terms which are mutually satisfactory to the department, the City, and Developer. As and

to the extent requested by the City, Developer shall manage the negotiations with the department and provide all legal and technical support required in connection therewith. 7 Compensation and Payments.

7.1 Contract Price. Developer agrees to perform the Work and City agrees to compensate Developer for the costs of such Work, as modified by approved Change Orders, as follows: Engineering Phase: $7,656,000 Procurement Phase:$28,450,000 Construction Phase: $7,515,000 Contract Price: $43,621,000 7.2 Payment The Contract Price shall be paid in accordance with the Schedule of Values attached hereto as Exhibit G, which is calculated to compensate Developer according to progress in completion of the Work, measured against the Progress Schedule. The Schedule of Values and Progress Schedule are subject to adjustment by Change Order. 7.2.1 On or before the fifth (5th) Day of each calendar month during the performance of the Work, Developer shall submit to City an invoice for payment of an appropriate portion of the Contract Price for the period ending on the last Day of the calendar month preceding such month ("Invoice Period"), setting out the progress achieved by the Developer as of the end of such Invoice Period, according to the Schedule of Values, reconciling such invoice with previous invoices, payments, Retention and other withholdings, and Change Orders. Developer's invoice shall be accompanied by a Payment Certificate in the form attached hereto as Exhibit C. 7.2.2 City shall promptly review such invoice and documentation and Developer's progress during the Invoice Period. In the event that City reasonably determines that Developer has not provided adequate documentation to accompany such invoice, City may request additional documentation from Developer. Any dispute regarding the sufficiency of such documentation shall be resolved in accordance with Section 27 of this Agreement. 7.2.3 Within twenty-five (25) Days following City's receipt of an invoice pursuant to Section 7.2.1, City shall pay to Developer the undisputed amount of the invoice, less any Retention. Retention shall be released in accordance with Section 7.4 of this Agreement. 7.2.4 In the event City reasonably determines that Developer has not achieved the progress claimed during the Invoice Period, City shall estimate Developer's progress during the Invoice Period and shall pay Developer for the level of progress estimated by City. Any dispute regarding the amount of such progress shall be resolved in accordance with Section 27 of this Agreement. 7.23 If there is any dispute about any amount invoiced by Developer, the amount

not in dispute shall be promptly paid in accordance with this Section 7.2, and any disputed amount which is ultimately determined to have been payable with that invoice shall be paid with interest, computed at an annual rate equal to the lesser of ten percent (10%), compounded monthly, or the highest rate allowed by law, from the date payment would originally have been due pursuant to this Agreement is there had been no dispute. 7.3 Source of Funds. City shall pay Developer for the Engineering Phase out of currently available general obligation funds. City shall pay Developer for the Procurement and Construction Phases out of proceeds from the issuance and sale of the Municipal Bonds. City shall be entitled to defer payment of amounts otherwise due under the Procurement and Construction Phases of this Agreement to the time the proceeds from the Municipal Bonds become available, only in accordance with this Section 7. 7.3.1 All invoices for payment shall be submitted, reviewed and approved in accordance with Section 7.2. 7.3.2 In lieu of the payment required by Section 7.2.3, City may, within twenty-five (25) Days of the date it receives an invoice, provide Developer with a written notice that it has approved all or a portion of the invoice, but that it intends to defer payment in accordance with the terms of this Section 7.3 to the time Municipal Bond proceeds become available to it. 7.33 Amounts approved by City pursuant to this Section 7.3 shall bear interest, computed at an annual rate equal to the lesser of ten percent (10%), compounded monthly, or the highest rate allowed by law, from the date of approval until the date paid in full. 7.3.4 All amounts deferred pursuant to this Section 7.3, together with accrued interest, shall be paid on the first invoice payment date pursuant to Section 7.2.3 occurring after the date on which Municipal Bond proceeds become available to the City to pay such amounts. 7.3.5 If, either because the Municipal Bonds have not been issued or sold, or Municipal Bond proceeds have not been made available to City, or for any other reason, Developer has not been paid all amounts deferred pursuant to this Section 7.3, together with all accrued interest, on or before September 1, 2002, Developer may, in its sole discretion, elect to terminate this deferred payment provision. In accordance with the applicable Constitutional debt limitation, all sums then due Developer shall be deemed general obligations of City, and City shall pay Developer all such sums immediately. 7.4 Retention.

7.4.1 General. From each approved payment of the Contract Price pursuant to Section 7.2, ten percent (10%) will be deducted and retained by the City ("Retention"), and the remainder will be paid to Developer. 7.4.2 Payment of Retention. The Retention, and any unpaid portion of the Contract Price remaining to be paid to Developer, shall be released and paid to

Developer and subcontractors pursuant to Dakota Public Contract Law Section 7107. 7.4.3 Other Retentions. In addition to the Retention, the City may deduct from each payment under this Agreement an amount necessary to protect City from loss ("Other Retention") because of: (D liquidated damages which have accrued as of the date of the application for payment; (2) any sums expended by the City in performing any of Developer's obligations under the Contract Documents which Developer has failed to perform or has performed inadequately; (3) defective Work not remedied; (4) stop notices, liens or an\ applicable encumbrances as allowed by state law: (5) unauthorized deviations from this Agreement; (6) any sums representing expenses, losses or damages as reasonably determined h the City, incurred by the City for which Developer is liable under this Agreement: and any other sums which the City is entitled to recover from Developer under the terms of this Agreement or pursuant to state law, including Section 1727 of the Dakota Labor Law In no case shall Other Retention pursuant to this paragraph exceed 5% of the Contract Price. The failure by the City to deduct any of these sums from a payment hereunder shall not constitute a waiver of the City's right to such sums. Prior to deducting any amount pursuant to this Section City shall first notify Developer in writing of its intention to withhold sums and the specific reasons therefor. Disputes regarding amounts deducted pursuant to this Section shall be resolved in accordance with Section 27 of this Agreement. 7.4.4 Substitutions for Contract Retentions. In accordance with Dakota Public Contract Law Section 22300, the City will permit the substitution of for any monies withheld by the City to ensure performance under this Agreement. At the request and expense of the Developer, securities equivalent to the amount withheld shall be placed with the City, or with a state or federally chartered bank in Dakota as the escrow agent. Thereafter the City shall then pay such monies to the Developer as they become due for the reasonably satisfactory completion of this Agreement and the securities shall he returned the Developer. For purposes of this Section and Section 22300 of the Public Contracts Law the term "satisfactory completion of the contract" shall mean the time the City has issued notices of final acceptance of the Work and filed a Notice of Completion as required by this Contract, which final acceptance shall not be unreasonably withheld or delayed. The Developer shall he the beneficial owner of any securities substituted or withheld and shall receive any interest thereon. The escrow agreement used for the purposes of this Section 7.4.4 shall be in the form provided by the City. 7.5 Prompt Payment to Subcontractors. As required by Dakota State Law Section 3262.5, Developer shall pay each Subcontractor undisputed amounts due for satisfactory performance of its contract no later than 15 working days from the receipt of each payment the Developer receives from the City for that Subcontractor's work. Any delay or postponement of payment from the above referenced time frame may occur only for good cause following written approval of the City. 7.6 Stop Notice. If, within the time fixed by law, a properly executed notice to stop payment is filed with City, due to Developer's or Developer's Subcontractor's failure to pay for labor or materials used in the Work, all money due for such labor or materials will be withheld from payment to Developer in accordance with applicable laws.

7.7 City performed Work. Whenever any portion of the Work is performed by City at Developer's request, the cost thereof shall be charged against Developer and may be deducted from any amount due or becoming due from City. 7.8 Precautionary Work. Whenever immediate action is required to prevent injury, death, or property damage, and precautions which are the Developer's responsibility have not been taken and are not reasonably expected to be taken, City may, after a reasonable attempt to notify Developer, cause such precautions to be taken and shall charge the cost thereof against Developer, or may deduct such cost from any amount due or becoming due from City. City action or inaction under such circumstances shall not be construed as relieving Developer or its Surety from liability. 7.9 Payments Not Relief from Developer's Obligations. Payment shall not relieve Developer from its obligations under the Contract Documents, nor shall such payment be construed to be acceptance of any of the Work. Payment shall not be construed as the transfer of ownership of any equipment or materials to City. Responsibility of ownership shall remain with Developer who shall be obligated to store any fully or partially completed work or structure for which payment has been made; or replace any materials or equipment required to be provided under the Contract Documents which may be damaged, lost, stolen or otherwise degraded in any way prior to recordation of the Grant Deed, or, with respect to any Punch List item, prior to the completion of such item. 7.10 Warranty/Guarantee Periods Not Affected. Warranty and guarantee periods shall not be affected by any payment but shall commence on the date set forth in Section 12, Warranties and Guarantees. 7.11 No Liquidated Damages Waiver. No payment made to Developer or its sureties will constitute a waiver of the liquidated damages under Section 10. 7.12 Waiver by Developer. Acceptance of final payment of the Contract Price pursuant to Section 7.4.2 shall constitute a waiver of all claims for payment by Developer, except (i) those claims previously made in writing and identified as unsettled at the time of submission of the final payment request; and (ii) indemnification claims, including indemnification pursuant to Section 14. 8 Title and Risk of Loss.

8.1 Conditioned upon payment by City of the amounts owing under this Agreement, Developer shall warrant and shall cause any Subcontractors to warrant that title to all Work will pass to City free and clear of all liens, claims, security interests, or encumbrances, other than (i) liens for taxes of Developer either not yet due or being contested in good faith by appropriate proceedings so long as such proceedings do not involve material risk of the sale, forfeiture or loss of the Project or the Project Site or any interest therein, (ii) materialmen's, mechanic's, workmen's, repairmen's or other like liens arising in the ordinary course of business securing obligations that are not overdue by more than 180 days or are being contested in good faith by appropriate proceedings so long as such proceedings do not involve any material risk of the sale, forfeiture or loss of

any of the Project or tie Project Site or any interest therein, and provided further that Developer shall provide a bond or other security in connection with any such liens or encumbrances, as may be reasonably required by City, and (iii) liens, claims, security interests, or encumbrances existing on the date that the Project Site was acquired by Developer. 8.2 Passage of Title. Conditioned upon payment by City of the amounts owing under this Agreement, title to the Work shall pass to City at the time of recordation of the Grant Deed. Developer shall execute and deliver to City all appropriate instruments necessary to transfer title to City, and the City shall record the Grant Deed within thirty (30) days after such execution and delivery. 8.3 Risk of Loss. Notwithstanding which Party has title, the risk of damage to or loss of any material, equipment, supplies or other property, whether stored on or off the Project Site shall remain with Developer until the date of recordation of the Grant Deed. 9 Substantial Completion. 9.1 Substantial Completion Target Date.

i. The Substantial Completion Target Date is March 31, 2003, unless extended by Change Order or in accordance with Clause (ii) or Exhibit A. ii. The Substantial Completion Target Date shall be extended on a day for day basis for any delay described herein, to the extent that such delay is not the fault of Developer; provided, however, that no individual Day shall be counted twice in determining the length of any such extension: (a) The receipt of a Final Validation Decision after the anticipated date for such receipt, as set forth in the Schedule of Values. (b) The completion of the issuance of the Municipal Bonds, and the availability of the proceeds thereof for payments pursuant to this Agreement, after the anticipated date therefor, as set forth in the Schedule of Values. (c) The delivery of Major Equipment after the date on which such equipment was expected to be delivered, as set forth in the Progress Schedule, to the extent that such delay is not due to delay in ordering Major Equipment by Developer or other fault of Developer. (d) Delay in achieving an interconnection between the Project and the City's electrical system, water system, or other utility systems, and delay in achieving an interconnection between the Project and Southern Dakota Gas Company's system, sufficient to permit Construction, testing, operation and maintenance of the Project, beyond the date specified in the Progress Schedule. 9.2 Notice of Substantial Completion by Developer. Promptly after all of the conditions required by the definition of Substantial Completion have been satisfied,

Developer shall issue to City a Notice of Substantial Completion, which shall include copies of any test reports required by the Scope of Work and set forth the date upon which the conditions for Substantial Completion were satisfied. Within ten (10) Days after receipt of the Notice of Substantial Completion, City shall respond to Developer in writing and shall either accept or reject such Notice. City shall not unreasonably withhold, condition or delay its acceptance of Developer's Notice. If the Notice is rejected by City, City shall identify with specificity any deficiencies, which deficiencies shall be promptly corrected by Developer. Developer shall thereafter resubmit a Notice of Substantial Completion to City. Failure of the City to reject the Notice of Substantial Completion, with a list of deficiencies, within ten (10) Days of its submission, will result in the Notice of Substantial Completion being deemed approved. Disputes regarding the achievement of Substantial Completion shall be resolved in accordance with Section 27 of this Agreement. 10 Liquidated Damages.

10.1 General. Developer shall achieve Substantial Completion on or before the Substantial Completion Target Date. In recognition of the financial issues associated with Developer's failure to achieve Substantial Completion by the Substantial Completion Target Date, City and Developer agree to certain Schedule Damages. 10.2 Schedule Damages. Failure of Developer to achieve Substantial Completion by the Substantial Completion Target Dale will result in damages being sustained by City. Such damages are, and will continue to be, impracticable and extremely difficult to determine. Developer agrees that if Substantial Completion has not been achieved by the Substantial Completion Target Date, it is understood, acknowledged and agreed that the Developer shall pay to the City as fixed and liquidated damages, and not as a penalty, an amount per Day determined in accordance with the following schedule of monthly damage levels, prorated for the number of Days during the month prior to Substantial Completion: Month Monthly Damage Level First month of delay prior to July 2003 $50,000 Second month of delay prior to July 2003 $100,000 Third month of delay prior to July 2003 $150,000 Any month starting with July 2003 $500,000 Execution of this Agreement shall constitute agreement by City and Developer that said sum is the value of the costs and actual damage caused by the failure of Developer to achieve Substantial Completion by the Substantial Completion Target Date. Such sum is liquidated damages and shall not be construed as a penalty, and may be deducted from payments due Developer if such delay occurs. The Parties acknowledge and agree that the provisions of this Section 10.2 are reasonable under the circumstances existing on the Effective Date Schedule Damages pursuant to this Section shall be the City's sole and exclusive remedy for any delay in achieving Substantial Completion by the Substantial Completion Target Date. The aggregate total of the Schedule Damages assessed against Developer under this Agreement shall not exceed ten percent (10%) of the Contract Price.

10.3 No Liquidated Damages During Payment Delay. Notwithstanding the foregoing, no liquidated damages shall be due with respect to any Day if, on such Day, there are any amounts due and payable hereunder which have not been paid by the City and which are not then subject to a good faith dispute with the City and not otherwise being challenged in good faith by the City. 11 Changes.

11.1 Changes for Developer's Convenience. Developer may make any change to the Project that enhances or does not detract from the Project. Developer shall not make a material change to the Project without the prior written consent of City. Material changes shall be authorized by Change Order. City shall accept or dispute a material change within twenty (20) Days of receiving notice of such proposed change. Such changes may require an adjustment to the Contract Price or Completion Date. Disputes regarding the impact of any change shall be resolved in accordance with Section 27 of this Agreement. 11.2 Changes for City's Convenience. City may order additions, deletions, or revisions in the Work. Such changes shall be authorized by Change Order. If such change increases Developer's costs (including interest or other carrying charges), adversely affects Developer's ability to meet the Completion Date, Developer shall be entitled to a change to the Work, and an equitable adjustment in the Contract Price, and Completion Date, as appropriate. Developer shall propose in writing an estimated equitable adjustment in the Contract Price and Completion Date due to any such change. City shall accept or dispute such proposal in writing within twenty (20) Days of receiving notice of such proposed change. Disputes regarding the impact of any change shall be resolved in accordance with Section 27 of this Agreement. 11.3 Other Changes. In the event and to the extent that any act or omission of City, or any error or change in City provided information, a change in the law, or a Force Majeure Event affects the Work, increases Developer's costs (including interest or other carrying charges), adversely affects Developer's ability to meet the Completion Date, Developer shall be entitled to a change to the Work and an equitable adjustment in the Contract Price, and Completion Date, as appropriate. Developer shall propose in writing a change to the Work and an equitable adjustment in the Contract Price, and Completion Date due to any such change, and City shall accept or dispute such proposal in writing within thirty (30) Days of receipt of Developer's proposal. Disputes regarding the impact of any change shall be resolved in accordance with Section 27 of this Agreement. 11.4 Differing Conditions. In the event and to the extent that discovery on the Project Site of (i) conditions that Developer could not have reasonable foreseen, (ii) historically significant artifacts, or (iii) Hazardous Conditions, affects the Work, increases Developer's costs (including interest or other carrying charges), or adversely affects Developer's ability to meet the Completion Date, Developer shall be entitled to change to the Work and an equitable adjustment in the Contract Price, and Completion Date, as appropriate. Developer shall propose in writing a change to the Work and an equitable adjustment in the Contract Price, and Completion Date due to any such differing

conditions City shall accept or dispute such proposal in writing within twenty (20) Days of receipt of Developer's proposal. Disputes regarding the impact of any change shall be resolved in accordance With Section 27 of this Agreement. 11.5 Supporting Documentation. All claims by Developer for adjustments to Contract Price, Completion Date, or Milestones under this Section 11.5 shall be supported by reasonable documentation. 11.6 Changes Beyond the Scope of the Work. In the event that either Party desires a change to the Project that is in an area not covered by 'the present Scope of Work, the Parties will meet in good faith to discuss the requested change; provided, however, that neither Party shall be obligated to agree to such a change. 12 Warranties and Guarantees.

12.1 Developer's Guarantee. Subject to Section 13.6, Developer guarantees and shall have any Subcontractors guarantee, subject to the other provisions of this Agreement, that the Work shall be performed in a skillful and workmanlike manner, free from defects in workmanship, and in conformance with the Contract Documents. 12.2 Assignment of Subcontractor Warranties. Developer shall cause all Subcontractor and Supplier warranties to be assignable to City or City's designee. Developer shall assign to City all unexpired Subcontractor warranties upon and concurrently with Developer's submission to the City of the Grant Deed. 12.3 Warranty/Guarantee Periods Commencement. All warranties guarantees under this Agreement shall commence upon Substantial Completion. and

12.4 City Required Materials, Supplies and Equipment. Developer does not guarantee or warrant, either expressly or impliedly, the materials in or workmanship of materials, supplies and equipment manufactured by third parties and furnished and installed by any Subcontractors in the performance of the Work where such materials, supplies and equipment are chosen or required by City, contrary to the recommendation of Developer. 12.5 DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE ARE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE PROJECT. 13 Tests and Inspections: Correction, Removal or Acceptance of Defective Construction. 13.1 Notice of Nonconformance. Upon actual discovery, City shall give prompt written notice to Developer of any fault or defect in the Construction within ten (10) working days after City has actual knowledge of any such defective Construction. All defective Construction may be rejected, corrected or accepted a provided in this Section 13.

13.2 Access to Construction. City, City's consultants, other representatives and personnel of City, independent testing laboratories and governmental agencies with jurisdictional interests will have access to the Construction at the Project Site at reasonable times for their observation, inspection and testing. Developer shall provide them proper and safe conditions for such access and advise them of Developer's Project site safety procedures and programs so that they may comply therewith as applicable. 13.3 Inspections.

13.3.1 Developer shall (i) maintain an adequate inspection system and perform such inspections as will assure that the Work performed conforms to Contract Documents and all applicable Laws and Regulations, and (ii) maintain and make available to City adequate records of such inspections. Developer shall provide and maintain a quality control system acceptable to City. 13.3.2 If any Construction (01 the construction work of others) that is required by the Scope of Work or any applicable Laws and Regulations to be inspected, tested or approved is covered by Developer without having been inspected, tested or approved by Developer and without written concurrence of City, it must, if requested by City, be uncovered for observation at Developer's expense as an Excluded Cost, unless Developer has given City timely notice of Developer's intention to cover the same and City has not acted with reasonable promptness in response to such notice. 13.4 Uncovering Construction.

13.4.1 If any Construction is covered contrary to the written request of City, it must, if requested by City, be uncovered for City's observation and recovered at Developer's expense as an Excluded Cost. 13.4.2 If City considers it necessary or advisable that covered Construction be observed by City or inspected or tested by others, Developer, at City's request, shall uncover, expose or otherwise make available for observation, inspection or testing as City may require, that portion of the Construction in question, furnishing all necessary labor, material and equipment. If it is found that such Construction is defective, Developer shall pay all costs and damages as an Excluded Cost caused by or resulting from such uncovering, exposure, observation, inspection and testing and of reasonably satisfactory replacement or rework, (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals, all court or arbitration or other dispute resolution costs, and all costs of repair or replacement of work of others). If it is found that such Construction is not defective, City shall pay all costs and damages caused by or resulting from such uncovering, exposure, observation, inspection and testing and of reasonably satisfactory replacement or rework, (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals, all court or arbitration or other dispute resolution costs, and all costs of repair or replacement of work of others) and shall adjust the schedule Milestones and Substantial Completion Target Date to account for the delay caused by the uncovering, exposure and observation of the work.

13.5 Correction or Removal of Defective Construction. City will have authority to disapprove or reject defective Construction and will have authority to require special inspection or testing of the Construction whether or not the Construction is fabricated, installed or completed. If required by City, Developer shall promptly, as directed, either correct all defective Construction, whether or not fabricated, installed or completed, or, if the Construction has been rejected by City, remove it from the Project Site and replace it with non defective Construction. Developer shall bear all direct costs of such correction or removal as Excluded Costs made necessary thereby. 13.6 Corrective Period. If within one (D year after the date of Substantial Completion, or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee or warranty required by the Contract Documents or by any specific provision of the Contract Documents, any Construction is found to be defective, Developer shall promptly, without cost to City and in accordance with City's written instructions, (i) correct such defective Construction, or, if it has been rejected by City, remove it from the Project Site and replace it with Construction that is not defective, and (ii) satisfactorily correct or remove and replace any damage to other Construction or the work of others resulting therefrom. If Developer does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, City may have the defective Construction corrected or the rejected Construction removed and replaced, and all costs and damages caused by or resulting from such removal and replacement (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals, all court or arbitration or other dispute resolution costs, and all costs of repair or replacement of work of others) will be paid by Developer as an Excluded Cost. Notwithstanding the foregoing, to the extent that any deficiency identified pursuant to this Section involves a defect or deficiency in a piece of the Major Equipment, such defect or deficiency is to be addressed exclusively pursuant to the warranty provided by the equipment supplier. Developer's obligation in that circumstance will be limited to notifying the supplier of such Major Equipment, and City's remedy shall be limited to the remedy available pursuant to the supplier's warranties or guarantees. 13.7 Acceptance of Defective Construction. If instead of requiring correction or removal and replacement of defective Construction, City prefers to accept such defective Construction, City may do so. City shall provide Developer with a written summary of all costs attributable to City's evaluation of whether to accept such defective Construction (such costs to include but not be limited to all fees and charges of engineers, architects, attorneys and other professionals and all court or arbitration or other dispute resolution costs) and Developer shall pay such costs as Excluded Costs. If any such acceptance occurs prior to final payment of the Contract Price pursuant to Section 6.2.5, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Construction; and City shall be entitled to net such Excluded Costs against any amounts otherwise owing to Developer. If the acceptance occurs after final payment of the Contact Price pursuant to Section 6.2.5, the appropriate amount will be paid by Developer to City Disputes regarding the reasonableness of City's costs shall be resolved in accordance with Section 27 of this Agreement. 14 Indemnities.

14.1 Developer's Indemnity. Developer shall defend, indemnify and hold City, its directors, officials, officers, employees and gents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, attributable to injury to or death of persons, including wrongful death, or attributable to the destruction of or damage to property , in any manner arising out of or incident to any intentional or negligent acts, errors or omissions of Developer, its officials, officers, employees, subcontractors, consultants or agents in the performance of this Agreement, including without limitation the payment of all consequential damages (other than lost profits) and reasonable attorneys fees, expert witness fees and other related costs and expenses of defense. Developer shall defend, with counsel approved by the City (which approval shall not be unreasonably withheld, conditioned or delayed) and at Developer's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against City, its directors, officials, officers, employees and agents. Developer shall pay and satisfy any judgment, award or decree that may be rendered against City, its directors, officials, officers, employees and agents in any such suits, actions or other legal proceedings. Developer shall also reimburse City for the cost of any settlement paid by City arising out of any such claims, demands, causes of action, costs, expenses, liabilities, loses, damages, injuries, suits, actions, or other legal proceedings. Such reimbursement shall include payment for City's attorney's fees and costs, including expert witness fees. Developer shall reimburse City, its directors, officials, officers, employees and agents for any and all legal expenses and costs, including expert witness fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Developer's obligation to indemnify shall not be reduced by insurance proceeds, if any, received by the City, its directors, officials, officers, employees and agents. 14.2 City's Indemnity. City shall defend, indemnify and hold Developer, its directors, officials, officers, employees and agents free and harmless from any and all claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, attributable to injury to or death of persons, including wrongful death, or attributable to the destruction of or damage to property , in any manner arising out of or incident to any intentional or negligent acts, errors or omissions of City, its officials, officers, employees, subcontractors, consultants or agents in the performance of this Agreement, including without limitation the payment of all consequential damages (other than lost profits) and reasonable attorneys fees, expert witness fees and other related costs and expenses of defense. City shall defend, with counsel approved by the Developer (which approval shall not be unreasonably withheld, conditioned or delayed) and at City's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against Developer, its directors, officials, officers, employees and agents. City shall pay and satisfy any judgment, award or decree that may be rendered against Developer, its directors, officials, officers, employees and agents in any such suits, actions or other legal proceedings. City shall also reimburse Developer for the cost of any settlement paid by Developer arising out of any such claims, demands, causes of action, costs, expenses, liabilities, loses, damages, injuries, suits, actions, or other legal proceedings. Such reimbursement shall include payment for Developer's attorney's fees and costs, including expert witness fees. City shall reimburse Developer, its directors, officials, officers, employees and agents for

any and all legal expenses and costs, including expert witness fees, incurred by each of them in connection therewith or in enforcing the indemnity herein provided. City's obligation to indemnify shall not be reduced by insurance proceeds, if any, received by the Developer, its directors, officials, officers, employees and agents. 14.3 Intellectual Property Infringement.

14.3.1 License Fees and Royalties. Developer shall pay all license fees and royalties and assume all costs incident to the performance of the Work or the incorporation in the Work of any invention, design process, product or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product or device is specified in writing by City for use in the performance of the Construction and if to the actual knowledge of City its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed to Developer by City. 14.3.2 Indemnity Against Intellectual Property Infringement. To the fullest extent permitted by Laws and Regulations, Developer shall defend, indemnify and hold harmless City, its officers, agents and employees, from and against all claims, costs, losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professional and all court or arbitration or other dispute resolution costs) arising out of or resulting from any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product or device not specified in writing by City. 14.3.3 Injunction. If City is enjoined from completion of the Project or any part thereof or from the use, operation or enjoyment of the Project or any part thereof as a result of such claim as set forth in Section 14.3.2 or legal action or any litigation based thereon, Developer shall promptly arrange to have such injunction removed at no cost to City. 14.3.4 Developer's Continuing Obligation. City's acceptance of Developer's engineering design and or proposed or supplied materials and equipment shall not be construed to relieve Developer of any obligation hereunder. 14.3.5 Limitations and Conditions. In the event of any claim or legal action for infringement, Developer shall have the right, at its option, and at its expense, either to procure for City the rights alleged to have been infringed or to modify the infringing item in a way reasonably satisfactory to City, in the reasonable exercise of its judgment, so that it becomes noninfringing. 14.3.6 Notwithstanding the foregoing, to the extent that any infringement or alleged infringement involves only a piece of Major Equipment, such infringement or alleged infringement shall be addressed exclusively pursuant to the warranty provided by the equipment supplier. Developer's obligation in that circumstance will be limited to notifying the supplier of such Major Equipment, and City's remedy shall be limited to the remedy available pursuant to the supplier's warranties or guarantees.

14.4

Environmental Indemnities.

14.4.1 The City shall indemnify and hold harmless Developer and its directors. officials, officers, employees and agents against and from any claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity. attributable to (a) any Environmental Condition. relevant to the Project Site or any activities conducted thereon, existing as of and/or prior to the date that Developer takes possession of the Project Site, even if not discovered until after the date that Developer takes possession of the Project Site (h) any violation of an Environmental Law with respect to the Project Site or activities conducted thereon, existing as of and/or prior to the date that Developer takes possession of the Project Site, even if not discovered until after the date that Developer takes possession of the Project Site or (c) any Environmental Condition and/or violation of Environmental Law existing after the date that Developer takes possession of the Project Site, relating to or originating from property\ adjacent to the Project Site (each a "Claim") except, in each case, to the extent such Environmental Condition and/or violation of Environmental Law is caused by the gross negligence or willful misconduct of Developer. 14.4.2 The City shall indemnify and hold harmless Developer and its directors, officials, officers, employees and agents against and from any claims, demands. cause of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity attributable to (a) any Environmental Condition, relevant to the Project Site or an\ activity conducted thereon. arising after the Developer transfers the Project and the Project Site to the (h) any violation of an Environmental Law with respect to the Project Site or activities conducted thereon, arising after the Developer transfers the Project and the Project Site to the ('its: 01 ( Environmental Condition and/or violation of Environmental Law arising after the Developer transfers the Project and the Project Site to the City. relating to or originating from property adjacent to the Project Site (each a "Claim") except. in each case, to the extent such Environmental Condition and/or violation of Environmental Law is caused by the gross negligence or willful misconduct of Developer. 14.4.3 Notwithstanding Section 5.18, the Parties acknowledge that the activities of Developer to prepare the Project Site and construct the Project may result in the movement or excavation of contaminated soils and groundwater, and could cause existing contamination to be relocated or released into previously unaffected areas. The Parties intend that the City shall bear responsibility for all costs and liabilities incurred by the City or Developer in conducting such activities. The City shall indemnify and hold harmless Developer and its directors, officials, officers, employees and agents against and from any claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, resulting from earthmoving activities, dewatering of excavations, and all other activities associated with Developer's Construction of the Project or preparation of the Project Site, including direct liability of Developer as an arranger or other category of liable party under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et seq., except, in each case, to the extent such Environmental Condition is caused by the gross negligence or willful misconduct of Developer.

14.4.4 Developer shall indemnify and hold harmless the City and its directors, officials, officers, employees and agents against and from any claims, demands, causes of action, costs, expenses, liability, loss, damage or injury of any kind, in law or equity, attributable to (a) any Environmental Condition attributable to any activities conducted on the Project Site by the Developer while the Developer i the owner of the Project Site; or (b) any violation of an Environmental Law attributable to any activities conducted on the Project Site by the Developer while the Developer is the owner of the Project Site (each a "Claim"); except, in each case, to the extent such Environmental Condition and/or violation of Environmental Law is caused by the gross negligence or willful misconduct of the City, or is the responsibility of the City or is subject to indemnification by the City pursuant to Section 14.4.3. 15 Insurance.

15.1 Time for Compliance. Developer shall not commence Work under the Construction Phase of this Agreement until it has secured all insurance required under this Section. In addition, Developer shall not allow any Subcontractor to commence Work on any subcontract until it has provided evidence reasonably satisfactory to the City that the subcontractor has secured all insurance required under this Section. 15.2 Minimum Requirements. Developer shall, at its expense, procure and maintain for the duration of this Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Work hereunder by the Developer, its agents, representatives, employees or subcontractors. Developer shall also require all of its Subcontractors to procure and maintain the same insurance for the duration of this Agreement. Such insurance shall meet at least the following minimum levels of coverage: 15.2.1 Minimum Scope of Insurance. Coverage shall be at least as broad as the latest version of the following: (D General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 000D; (2) Automobile Liability: Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); (3) Workers' Compensation and Employers' Liability: Workers' Compensation insurance as required by the State of Dakota and Employer's Liability Insurance; and (4) Builders All Risk: Builders'/All Risk insurance covering for all risks of loss, including explosion, collapse, underground excavation and removal of lateral support (and including earthquakes and floods, at the City's expense, if available and if requested by the City). 15.2.2 Minimum Limits of Insurance. Developer shall maintain limits no less than: (D General Liability: $5,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used,, either the general aggregate limit shall apply separately to this Contract/location or the general aggregate limit shall be twice the required occurrence limit;(2) Automobile Liability: $1,000,000 per accident for bodily injury and property damage; (3) Workers' Compensation and Employer's Liability: Workers' compensation limits as required by the Labor Law of the State of Dakota. Employers Liability limits of $1,000,000 per accident for bodily injury or disease; and (4) Builders '/All Risk. Completed value of the project.

15.3 Insurance Endorsements. The insurance policies shall contain the following provisions, or Developer shall provide endorsements on forms supplied or approved by the City to add the following provisions to the insurance policies: 15.3.1 General Liability. (D The City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the Work or operations performed by or on behalf of the Developer, including materials, parts or equipment furnished in connection with the Work; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, and shall stand in an unbroken chain of coverage excess of the Developer's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Developer's insurance and shall not be called upon to contribute with it. 15.3.2 Automobile Liability. (D The City, its directors, officials, officers, employees, agents and volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by the Developer or for which the Developer is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, and shall stand in an unbroken chain of coverage excess of the Developer's scheduled underlying coverage. Any insurance or self-insurance maintained by the City, its directors, officials, officers, employees, agents and volunteers shall be excess of the Developer's insurance and shall not be called upon to contribute with it. 15.3.3 Workers' Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the Developer. 15.3.4 All Coverages. Each insurance policy required by this Agreement shall be endorsed to state that: (D coverage shall not be suspended, voided, reduced or canceled except after thirty (30) Days prior written notice by certified mail, return receipt requested, has been given to the City; and (2) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers. 15.4 Builders'/All Risk Policy Requirements. The builders'/all risk insurance shall provide that the City and Developer be named as loss payees. In addition, the insurer shall waive all rights of subrogation against the City. 15.5 Separation of Insureds: No Special Limitations. All insurance required by this Section 15 shall contain standard separation of insureds provisions. In addition, such insurance shall not contain any special limitations on he scope of protection afforded to the City, its directors, officials, officers, employees, agents and volunteers, that do not also apply to the Developer.

15.6 Professional Liability Insurance. All architects, engineers, consultants or design professionals shall also procure and maintain, for a period of three (3) years following Final Completion, errors and omissions liability Insurance with a limit of not less than $5,000,000 per occurrence. 15.7 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating no less than A:VIII, licensed to do business in Dakota, and reasonably satisfactory to the City. 15.8 Verification of Coverage. Developer shall furnish the City with original certificates of insurance and endorsements effecting coverage required by this Agreement within ninety (90) days after the effective date. All such certificates and endorsements shall be on forms reasonably satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf. All certificates and endorsements must be received and approved by the City before the Work commences. Within ten (10) Days after receipt of any such certificate or endorsement, the City shall respond to Developer in writing and shall either accept or reject such certificate or endorsement. The City shall not unreasonably withhold, condition or delay its acceptance of such certificate or endorsement. If the certificate or endorsement is rejected by the City, the City shall identify with specificity any deficiencies, which deficiencies shall be promptly corrected by Developer. Developer shall thereafter resubmit such certificate or endorsement to the City. Failure of the City to reject the certificate or endorsement, with a list of deficiencies, within ten (10) Days of its submission, will result in the certificate or endorsement being deemed approved. The City reserves the right to require complete, certified copies of all required insurance policies, at any time. 15.9 Subcontractors. All Subcontractors shall meet the requirements of this Section before commencing Work. All coverages for Subcontractors shall be subject to all of the requirements stated herein. 16 Bonds.

16.1 Performance Bond. Developer shall execute and provide to City a Performance Bond in an amount equal to fifty percent (50%) of the sum of the prices for the Procurement and Construction Phases, and in substantially the form of American Institute of Architects form AIA 312. No payment will be made to Developer for the Procurement or Construction Phases until such Bond has been received by the City. 16.2 Payment Bond. Prior to commencing work on the Procurement Phase, Developer shall execute and provide to City a statutory Payment Bond pursuant to Dakota State Law 3247 and 3248, in the amount of 100% of the sum of the prices for the Procurement and Construction Phases of the Work, and in substantially the form of American Institute of Architects form AIA 312. 16.3 Bond Provisions. Should, in City's sole opinion, any surety be found to be unsatisfactory, Developer shall renew or replace the effected Bond within 10 Days of receiving notice from City. In the event the surety or Developer intends to reduce or

cancel any required Bond, at least thirty (30) Days prior written notice shall be given to the City, and Developer shall post acceptable replacement Bonds at least ten (10) Days prior to expiration of the original Bonds. No further payments shall be deemed due or will be made under this Agreement until any replacement Bonds required by this Section are accepted by the City. To the extent, if any, that the Contract Price is increased in accordance with this Agreement, the Developer shall, upon request of the City, cause the amount of the Bond to be increased accordingly and shall promptly deliver reasonably satisfactory evidence of such increase to the City. To the extent available, the Bonds shall further provide that no change or alteration of this Agreement (including, without limitation, an increase in the Contract Price, as referred to above), extensions of time, or modifications of the time, terms, or conditions of payment to the Developer, will release the surety. If the Developer fails to furnish any required Bond, the City may terminate this Agreement for cause. 16.4 Surety Qualifications. Only Bonds executed by an admitted surety insurer, as defined in Law of State Procedure Section 995.120, shall be accepted. The surety must be a Dakota admitted surety with a current A.M. Best's rating no less than A:VIII and reasonably satisfactory to the City. If a Dakota admitted surety insurer issuing Bonds does not meet these requirements, the insurer will be considered qualified if it is in conformance with Section 995.660 of the Dakota Law of State Procedure, and proof of such is provided to the City. 17 Termination. 17.1 Termination by City.

17.1.1 For Convenience. In the event City, in its sole and absolute discretion, abandons or indefinitely postpones the Project, City may terminate this Agreement upon thirty (30) Days written notice to Developer. If the Agreement is so terminated, Developer shall cease and shall cause to be ceased all Work on the Project, except as otherwise directed by City. Upon termination of this Agreement, City shall pay Developer for: (I) Work completed to date of such termination;

(2) other costs incurred, including costs of materials, equipment, tools, construction equipment and machinery, warehousing, engineering and other services, transfer of materials or other items for which City has not compensated Developer; (3) reasonable demobilization expenses

(4) a termination fee equal to eight percent (8%) of the amount by which the Contract Price exceeds the amounts previously paid to Developer (other than amounts paid pursuant to Section 16.1(3). A termination fee shall not apply in the event this Agreement is terminated, as provided herein, as a result of: () an adverse Final Validation Decision invalidating this Agreement, provided that the City has used all reasonable efforts to obtain a favorable Final Validation Decision; (ii) the Municipal Bonds not being issued by the City, provided that the City has used all reasonable efforts to issue the Municipal Bonds; (iii) Final DEQA Compliance cannot be achieved due to a successful

challenge, provided that the City has used all reasonable efforts to achieve Final DEQA Compliance; (iv) an option to purchase the Project Site, in accordance with Section 6.2, is not granted by James and Frances Beckett to Developer, provided that the City has used all reasonable efforts to cause such a grant to take place and/or (v) an Operation and Maintenance Agreement is not mutually agreed upon between the parties as set forth in Section 3.2. Except to the extent provided herein, City shall n(t pay Developer for any loss of profits, administration or overhead expenses, for any portion of the Work not performed prior to Developer's receipt of the notice of termination. 17.1.2 For Cause. City may terminate this Agreement for cause in the event Developer fails to perform any of its material obligations hereunder. City shall notify Developer in writing of its intent to terminate and the basis for termination. Developer shall have thirty (30) Days from the date notice is received to cure or submit a plan for cure reasonably acceptable to City. If Developer fails to cure or submit a plan for cure within thirty (30) Days, City may, without prejudice to any other remedy, make good such deficiencies and deduct the cost thereof from the Contract Price or from any payment due or coming due Developer or, at City's option, terminate the Agreement and take possession of the Project Site and all materials, equipment, tools, construction equipment and machinery thereon owned or contracted for by Developer and finish the Work; provided, however, that the City shall pay Developer for any Work performed prior to the date of such termination, reduced by the amount of any damages suffered by the City as a result of the vents giving rise to such termination. 17.2 Termination by Developer. Developer may only terminate this Agreement for cause (i) in the event City fails to perform any of its obligations under Section 6, (ii) in the event that Developer discovers any Environmental Condition on the Project Site that cannot be remedied in a manner reasonably satisfactory to Ii)developer. Developer shall notify City in writing of its intent to terminate and the basis for termination, (iii) in the event that a Final Validation Decision is received, the SCAQMI) Air Permit is received or the Final DEQA Compliance is achieved after the anticipated date for such receipt or achievement, as the case may be, as set forth in the Schedule of Values, to the extent that such delay is not the fault of Developer; or (iv) in the event that the issuance of the Municipal Bonds, and the availability of the proceeds thereof for payments pursuant to this Agreement, occur after the anticipated date therefor as set forth in the Schedule of Values, to the extent that such delay is not the fault of Developer. In the event of termination pursuant to Clause (i), City shall have ten (10) Days from the date notice is received to cure or submit a plan for cure. If City fails to cure or submit a plan for cure within ten (10) Days, Developer may terminate this Agreement. Upon Termination by Developer pursuant to this Section, City shall pay Developer for: (1) Work completed to date of such termination;

(2) other costs incurred, including costs of materials, equipment, tools, construction equipment and machinery, warehousing, engineering and other services, transfer of materials or other items for which City has not compensated Developer;

(3)

reasonable demobilization expenses;

(4) a termination fee equal to eight percent (8%) of the amount by which the Contract Price exceeds the amounts previously paid to Developer (other than amounts paid pursuant to Section 17.2(3). 17.3 Effect of Termination. In the event this Agreement is terminated pursuant to this Section 17, and upon payment by City of any amounts due Developer pursuant to this Section 17 and other provisions of this Agreement, Developer shall, within ten (10) Days of receiving, or giving, as the case may be, notice of termination, submit to the City the Grant Deed executed by authorized representatives of Developer. 18 Prevailing Wages. Developer is aware of the requirements of Dakota Labor Law Section 1720, et q., and 1770, et g., as well as Dakota Law of Regulations, Title 8, Section 1600, et seq., ("Prevailing Wage Laws"), which require the payment of prevailing wage rates and the performance of other requirements on "public works" and "maintenance" projects. Since the Work is being performed as part of an applicable "public works" project, as defined by the Prevailing Wage Laws, and since the total compensation is $1,000 or more, Developer agrees to fully comply with such Prevailing Wage Laws. City shall provide Developer with a copy of the prevailing rates of per diem wages in effect at the commencement of this Agreement. Developer shall make copies of the prevailing rates of per diem wages for each craft, classification or type of worker needed to execute the Work available to interested parties upon request, and shall post copies at the Developer's principal place of business and at the Project Site. Developer shall defend, indemnify and hold the City, its elected officials, officers, employees and agents free and harmless from any claim or liability arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 19 Nondiscrimination. Developer represents that it is an equal opportunity employer and that it shall not discriminate against any employee or applicant for employment because of race, religion, color, national origin, ancestry, gender, age or other interests protected by the State of Federal Constitutions. Such nondiscrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination. 20 Force Majeure.

20.1 Neither Party shall be responsible for any delay in the performance or progress of the Work or liable for any costs or damages sustained by City or Developer resulting from any Force Majeure Event, except that a Force Majeure event shall entitle Developer to a Change Order pursuant to Section 11.3 of this Agreement. In the event of any such force majeure delay, the affected Party shall proceed with due diligence to alleviate such delay and continue the performance of all obligations hereunder. Notwithstanding the foregoing, the obligation to pay money in a timely manner for Work actually performed shall not be excused due to an event of Force Majeure and shall not be subject to suspension. 20.2 Whenever either Party is required to commence or complete any action

within a specified period or by a specified deadline, such period or deadline, as the case may be, shall be extended by an amount equal to the duration of any event of Force Majeure occurring or continuing during such period or prior to such deadline. 21 Proprietary Rights.

21.1 Assignment of Rights. Anything in this Agreement to the contrary notwithstanding, Developer agrees that it is the desire and intent of the Parties hereto that all work performed by Developer under this Agreement shall constitute a "work made for hire" for purposes of the United States Copyright Act of 1976, as amended. Developer hereby assigns to City all proprietary rights including, but not limited to, all patents, copyrights, trade secrets and trademarks, Developer might otherwise have, by operation of law or otherwise, in all inventions, discoveries, works, ideas, information, knowledge ad data originally conceived by Developer during its performance of the Work. 21.2 Supporting Documents. Developer further agrees to execute and deliver any additional documents, instruments, applications, oaths or other writings necessary or desirable to further evidence the assignment described in Section 21.1. 21.3 Return of Materials. Except for those items which have previously been returned to City prior to the expiration or termination of the Agreement, upon expiration or termination of this Agreement, Developer agrees to return to City all computer software, computer programs, codes, magnetic tapes, printouts, samples, notes, records, reports, documents, customer and prospective customer lists, memoranda, plans, blueprints, correspondence, proposals, drawings, letters, flowcharts, manuals, strategies, techniques, photographs, catalogs and writings and all copies thereof, developed, prepared or created during, Developer's engagement by City and, without limiting the foregoing, Developer shall promptly deliver to City any and all such documents or materials; provided, however, that Developer may retain one (D office copy of any materials produced by Developer for City pursuant to the terms of this Agreement which shall continue to be subject to the terms of this Agreement. City may withhold any payments due Developer until the return of these materials and any other materials of City or its customers. 21.4 Preexisting Rights. Developer shall retain its preexisting rights in its standard drawing details, designs, specifications, databases, computer software and any other proprietary property. Rights to intellectual property utilized or modified in the performance of the Work shall remain the property of Developer, provided, however, that by incorporating such property into the deliverables of the Project in the performance of its obligations hereunder, Developer shall be deemed to have granted City a perpetual "right to use" such intellectual property. 21.5 Survival. The provisions of this Section 21 shall survive expiration or termination of this Agreement. 22 22.1 Confidentiality. Developer. Developer agrees to hold in confidence for a period of two (2)

years from the date of expiration or termination of this Agreement any confidential information supplied to Developer by the City or its contractors and designated in writing as confidential by the supplier thereof. Developer further agrees, to the extent requested by the supplier of such information, to require its subcontractors, vendors, suppliers and employees to enter into appropriate nondisclosure agreements relative to such confidential information, prior to the receipt thereof. 22.2. The City agrees to hold in confidence for a period of two (2) years from the date of expiration or termination of this Agreement any confidential information supplied to the City by Developer, Developer's employees, contractors, or other agents and designated in writing as confidential by the supplier thereof. The City further agrees, to the extent requested by the supplier of such information, to require its Partners and contractors to enter into such appropriate nondisclosure agreements relative to such confidential information, prior to the receipt thereof. 22.3 Exceptions. The provisions of this Section 22 shall not apply to information within any one of the following categories or any combination thereof: (i) Information which was in the public domain prior to the receiving Party's receipt or which subsequently becomes part of the public domain by publication or otherwise, except by the receiving Party's wrongful act; or (ii) Information which the receiving Party can show was in its possession prior to receipt thereof from the disclosing Party; or (iii) Information received by a Party from a third party having no obligation of secrecy with respect thereto. 22.4 Required Disclosure. Any Party required by law, rule, regulation, or order, or in the course of administration or judicial proceedings, to disclose information that is otherwise required to be maintained in confidence pursuant to this Section 22, may make disclosure notwithstanding the provisions of this Section 22; provided, the Party making the disclosure shall immediately notify the other Party of the requirement and the terms thereof prior to the submission and shall cooperate to the maximum extent practicable to minimize the disclosure of the information. 22.3 Publicity. Developer shall not use City's name or insignia, photographs of the project, or any publicity pertaining to the Work or the Project in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of the City. Developer shall be allowed to use the Project in references, qualification lists and similar business development documents and presentations without written consent from the City. 23 Conflict of Interest. Developer warrants, by execution of this Agreement, that, except as contemplated by this Agreement and the Operation and Maintenance Agreement to be entered into pursuant to Section 3.2(i), it has no interest, present or contemplated, in the Work or the Project. Any practices that may result in unlawful activity, including, but not limited to, rebates, kickbacks, or other unlawful consideration,

are expressly prohibited. Commencing with the issuance of the City's Request for Proposals and for the duration of this Agreement, no officer, official, employee, or consultant of the City, during the term of his or her services with the City, shall have any interest in the Work, the Project, this Agreement, or any work, services, equipment or materials required or provided for the project or obtain any present or anticipated material benefit therefrom, or take any action in violation of Dakota Government Law Section 1090 et seq. or Dakota Government Law Section 87100 et g. 24 Solicitation. Developer maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Developer, or any consultant or contractor retained by Developer, to solicit or secure this Agreement. Further, Developer warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Developer any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. 25 General Compliance with Laws. Developer shall keep fully informed of federal, state and local laws and ordinances and regulations which in any manner affect those employed by Developer, or in any way affect the performance of Work by Developer pursuant to this Agreement. Developer shall at all times observe and comply with all such laws, ordinances, and regulations and shall be responsible for the compliance of Developer's Work with all applicable laws, ordinances and regulations. 26 Limitation of Liability. The remedies afforded by this Agreement are intended to be the sole and exclusive remedies of the Parties to this Agreement for the liabilities of such Parties arising out of or in connection with the Work or this Agreement, not withstanding any remedy otherwise available at law or in equity. 26.1 In no event shall the aggregate maximum liability of Developer under this Agreement for performance or nonperformance of all obligations under this Agreement, including without limitation Schedule Damages and indemnities, exceed one hundred percent (100%) of the Contract Price prior to Mechanical Completion. 26.2 In no event, except to the extent that Schedule Damages provided for in Section 10.2 or amounts paid to third parties as described in Sections 14 may be construed to cover such damages, whether as a result of breach of contract, warranty, guarantee, indemnity, tort, including negligence, strict liability or otherwise, shall either party hereto or any Contractor or Subcontractor be liable for indirect, special, incidental, consequential or exemplary damages, including but not limited to, the loss of profits or revenue, loss of use of equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, down time costs, costs in excess of estimates, loss of opportunity, loss of data, loss of goodwill, cost of purchased or replacement power, governmental penalties or sanctions imposed on City and/or claims of customers of the other party for such damages; and City hereby releases Developer and all Contractors and Subcontractors therefrom. 27 Disputes. In the event a dispute arises between City and Developer regarding

the application or interpretation of any of the terms of this Agreement, or the actions, inactions or performance of any person with respect to the Project, City's Representative and Developer's Representative shall use their best efforts in good faith to reach a reasonable and equitable resolution of the matter. If the City's Representative and the Developer's Representative are unable to resolve the matter within 30 Days, either party may refer the matter by written notice to the senior officers of the parties. If such senior officers cannot resolve the matter, the parties shall use their best efforts in good faith to agree upon an appropriate method of nonjudicial dispute resolution, including but not limited to mediation, mini trial, or arbitration. In any event, neither party shall seek judicial resolution of any dispute until thirty (30) Days after the matter has been referred in writing to the parties' senior officers. The pendency of this dispute resolution mechanism shall not in and of itself relieve either party of its duty to perform under the Agreement. 28 Independent Contractor, Other. Developer shall at all times during its performance of the Work retain its status as independent contractor. Developer's employees and agents shall under no circumstances be considered or held to be employees or agents of City, and City shall have no obligation to pay or withhold state or federal taxes or provide workers' compensation or unemployment insurance for or on behalf of them or Developer. The Parties acknowledge and agree that Developer has not at any time acted, and in performing its obligations under this Agreement will not be acting, as an advisor to the City with respect to this Agreement, the Project or any other matter. 29 Representations and Warranties.

29.1 Representations and Warranties of Both Parties. Each Party represents and warrants to the other Party that: (i) such Party has the full power and authority to execute, deliver and perform this Agreement and to carry out the transactions contemplated hereby; (ii) the execution and delivery of this Agreement by such Party and the carrying out by such Party of the transactions contemplated hereby have been duly authorized by all requisite corporate (or, if applicable, partnership) action, and this Agreement has been duly executed and delivered by such Party and constitutes the legal, valid and binding obligation of such Party enforceable against such Party in accordance with the terms hereof, subject, as to the enforceability of remedies, to limitations imposed by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to insolvency, reorganization, moratorium or other similar laws relating to or affecting the enforcement of creditors' rights generally and to general principles of equity; (iii) no Authorization is required for the execution, delivery and performance by such Party of this Agreement or the carrying out by such Party of the transactions contemplated hereby, other than Authorizations already obtained and Authorizations to be obtained with respect to the Construction and/or operation of the Project; and (iv) none of the execution, delivery and performance by such Party of this Agreement, the compliance with the terms and provisions hereof, and the carrying out of

the transactions contemplated hereby, conflicts or will conflict with or result in a breach of violation of any of the terms, conditions, or provisions of any law, Authorization, governmental rule or regulation or the charter documents (or partnership agreement, if applicable) as amended or bylaws, as amended, of such Party or any applicable order, writ, injunction judgment or decree of any court or governmental authority against such Party or by which it or any of its properties is bound, or any loan agreement indenture, mortgage, bond, note, resolution, contract or other agreement or instrument to which such Party is a Party or by which it or any of its properties is bound, or constitutes or will constitute a default thereunder or will result in the imposition of any lien upon any of its properties. 29.2 Additional Representations. Warranties and Covenants of The City: The City represents and warrants to Developer that the City of Dreams, Dakota, is a Dakota General Law City, organized under Dakota law, and operating a municipal utility under the laws of the State of Dakota, including the Dakota Constitution and Dakota Public Utilities Law sections 10001, et seq. (the "Act"). The City further represents, warrants and covenants to Developer, as of the Effective Date and continuing throughout the term of this Agreement as follows: (i) all acts necessary to the valid execution, delivery and performance of this Agreement, including without limitation, competitive bidding, public notice, election, referendum, prior appropriation or other required procedures has or will be taken and performed as required under the Act and all ordinances, bylaws or other regulations applicable to the City; (ii) all persons making up the governing body of the City are the duly elected or appointed incumbents in their positions and hold such positions in good standing in accordance with the Act and other applicable law; (iii) entry into and performance of this Agreement by the City are for a proper public purpose within the meaning of the Act and all other relevant constitutional, organic or other governing documents and applicable law; (iv) the term of this Agreement does not extend beyond any applicable limitation imposed by the Act or other relevant constitutional, organic or other governing documents and applicable law; (v) The City's obligations to make payments hereunder are unsubordinated obligations and such payments are (i) operating and maintenance costs (or similar designation) which enjoy first priority of payment at all times under any and all bond ordinances or indentures to which it is a party, the Act and all other relevant constitutional, organic or other governing documents and applicable law or (ii) otherwise not subject to any prior claim under any and all bond ordinances or indentures to which it is a party, the Act and all other relevant constitutional, organic or other governing documents and applicable law and are available without limitation or deduction to satisfy all of the City's obligations hereunder; (vi) obligations to make payments hereunder do not constitute any kind of

indebtedness of the City or create any kind of lien on, or security interest in, any property or revenues of the City which, in either case, is proscribed by any provision of the Act or any other relevant constitutional, organic or other governing documents and applicable law, any order or judgment of any court or other agency of government applicable to it or its assets, or any contractual restriction binding on or affecting it or any of its assets. 30 Miscellaneous Provisions.

30.1 Waiver. A waiver by either City of Developer of any breach of this Agreement shall be in writing. Such a waiver shall not affect the waiving Party's rights with respect to any other or further breach. 30.2 Severability. The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion or provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion or provision held to be void. The Parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision that is of the essence of this Agreement to be determined void. 30.3 Intentionally Omitted.

30.4 Integration. This Contract Documents constitute the final, complete, and exclusive statement of the terms of the agreement between the Parties pertaining to the Project, and supersedes all prior and contemporaneous understandings or agreements of the Parties. Neither Party has been induced to enter in this Agreement by, and neither Party is relying on, any representation or warranty outside those expressly set forth in this Agreement. 30.5 Successors and Assigns. City and Developer each binds itself and its directors, officers, partners, successors, executors, administrators, assigns, and legal representatives to the other Party to this Agreement and to the directors, officers, partners, successors, executors, administrators, assigns, and legal representatives of such other Party in respect to all provisions of this Agreement. Neither this Agreement nor any part hereof nor any monies due or to become due hereunder may be assigned by Developer without the prior written consent of the City's Representative. 30.6 Assignment. Neither City nor Developer shall assign any rights or duties under this Agreement without the prior written consent of the other Party, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that Developer may assign this Agreement to any commonly owned affiliate of Developer. Unless otherwise stated in the written consent to an assignment, no assignment will release or discharge the assignor from any obligation under this Agreement. Nothing contained in this Article shall prevent Developer from employing independent consultants, associates, and Subcontractors to assist in the performance of the Work.

Notwithstanding any agreement with any Subcontractor(s), Developer shall be solely responsible for the Work, and has complete and sole responsibility as a principal for its agents and all others it hires to perform or assist in performing the Work. Developer may assign money due or which will accrue to it under the Agreement. If given written notice, such assignment will be recognized by the City to the extent permitted by law. Any assignment of money shall be subject to all proper withholdings in favor of the City and to all deductions provided for in the Contract Documents. All money withheld, whether assigned or not, shall be subject to being used by City for completion of the Work, should the Developer be in default. 30.7 Third Party Rights. Except as expressly provided in this Agreement, nothing in this Agreement shall be construed to give any rights or benefits to anyone other than City and Developer. 30.8 Headings. Article, Section and Subsection headings in this Agreement are for the convenience of reference only and shall not govern the interpretation of any provision of this Agreement. 30.9 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Dakota, excluding conflict of law provisions. 30.10 Jurisdiction and Venue. Any action at law or in equity brought by either of the Parties for the purpose of enforcing a right or rights provided for by this Agreement shall be tried in a court of competent jurisdiction in the County of San Bernardino, State of Dakota, and the Parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other country. 31 Apprenticeable Crafts. When Developer employs workmen in an apprenticeable craft or trade, Developer shall comply with the provisions of Section 1777.5 of the Labor Law with respect to the employment of properly registered apprentices upon public works. The primary responsibility for compliance with said Section for all apprenticeable occupations shall be with Developer. 32 Hours of Work. Developer is advised that eight (8) hours labor constitutes a legal day's work. Pursuant to Section 1813 of the Labor Law, Developer shall forfeit a penalty as specified in such Section for each Day that each worker is required to work more than eight (8) hours in any one Day and forty (40) hours in any one calendar week, except when payment for overtime is made at not less than one and one-half (11/2) times the basic rate for that worker. 33 Records. In accordance with the requirements of Labor Law Section 1776, Developer shall keep accurate payroll records which are either on forms provided by the Division of Labor Standards Enforcement or which contain the same information required by such forms. Responsibility for compliance with Labor Law Section 1776 shall rest solely with Developer, and Developer shall make all such records available for inspection at all reasonable hours.

34 Non Collusion Affidavit. in the form set forth in Exhibit I.

Developer shall execute a non collusion affidavit

35 Notices. Service of any notices, bills, invoices or other documents required or permitted under this Agreement shall be sufficient if sent by one Party to the other by United States mail, postage prepaid and addressed as follows: Developer: Wombat Construction ___________________ ___________________ ___________________ Fax No. (555) 555-5555 Attention: President Copy: General Counsel Fax: (555) 555-5555 City: City of Dreams 1 South Main Street Dreams, Dakota Fax No. (555) 555-5555 Attention: PUC Director Nothing contained in this Section 35 shall be construed to restrict the transmission of routine communications between representatives of Developer and City. Any changes in the information provided in this Section 35 shall be communicated to the other Party in accordance with this Section. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first above written. CITY OF DREAMS By:_______________ E.Z. Marks City Manager City of Dreams DEVELOPER: Wombat Construction By: ___________________

List of Exhibits: EXHIBIT A: EXHIBIT B: SCHEDULE OF AUTHORIZATIONS [BLANK]

EXHIBIT C: FORM OF PAYMENT CERTIFICATE EXHIBIT D: PROGRESS SCHEDULE EXHIBIT E: EXHIBIT F: PROJECT DESCRIPTION PROJECT SITE

EXHIBIT G: SCHEDULE OF VALUES EXHIBIT H: SCOPE OF WORK EXHIBIT I: FORM OF NON COLLUSION AFFIDAVIT