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: 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 Construction Phase The phase of the Work including Construction 1.8 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 Days Unless otherwise specified shall mean calendar days 1.12 Developer Wombat Construction LLC, a Delaware limited liability company 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 Developer's Taxes Those taxes described as Developer's Taxes in Section 1.15 Effective Date The date identified in the caption to this Agreement 5.9 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 Retention Those sums described in Section 7.4 1.41 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 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 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 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 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 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 (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 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 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 Confidentiality 22.1 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 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 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: SCHEDULE OF AUTHORIZATIONS EXHIBIT B: [BLANK] EXHIBIT C: FORM OF PAYMENT CERTIFICATE EXHIBIT D: PROGRESS SCHEDULE EXHIBIT E: PROJECT DESCRIPTION EXHIBIT F: PROJECT SITE EXHIBIT G: SCHEDULE OF VALUES EXHIBIT H: SCOPE OF WORK EXHIBIT I: FORM OF NON COLLUSION AFFIDAVIT ... 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... 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,... 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,