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<br />CONFIDENTIALITY AND WAIVER OF CONFLICT AGREEMENT
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<br /> THIS CONFIDENTIALITY AND WAIVER OF CONFLICT AGREEMENT (hereinafter the “Agreement”) is made and entered into this 26th day of January, 2017, by and between the METRO FLOOD DIVERSION AUTHORITY, a political subdivision of the State of North
<br />Dakota (hereinafter the “Authority”), and FREDRIKSON & BYRON, P.A., a professional
<br />corporation organized and existing under the laws of the State of Minnesota, with its principal office
<br />and place of business in the City of Minneapolis, Minnesota (hereinafter “Fredrikson & Byron”). WHEREAS, the City of Fargo, North Dakota; Cass County, North Dakota; the Cass County
<br />Joint Water Resource District, North Dakota; the City of Moorhead, Minnesota; and Clay County,
<br />Minnesota entered into a Joint Powers Agreement for the creation and ongoing operation of the
<br />Authority; and WHEREAS, the Joint Powers Agreement provides for the cooperative administration of a
<br />project, specifically the Fargo-Moorhead Metropolitan Area Flood Risk Management Project (the
<br />“Project”); and
<br /> WHEREAS, construction of the Project was authorized by the United States Congress as part of the Water Resources Reform and Development Act of 2014, Public Law 113-121; and
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<br />WHEREAS, the Non-Federal Sponsors of the Project, which are the Authority, the City of
<br />Fargo, and the City of Moorhead, have entered into a Project Partnership Agreement (“PPA”), dated July 11, 2016, with the USACE for the Project; and
<br />WHEREAS, the PPA sets forth a split delivery model for the Project, establishing the
<br />respective responsibilities of both the Non-Federal Sponsors and the USACE; and
<br /> WHEREAS, the Authority is the entity responsible for the Non-Federal Sponsors’ obligations under the PPA; and
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<br /> WHEREAS, pursuant to the PPA, part of the Authority’s responsibility will be to design,
<br />construct, manage, operate, and maintain thirty (30) miles of channel and associated features; the channel outlet; two (2) aqueducts; two (2) hydraulic structures; various local drainage inlets; various levees; four (4) railroad bridges; four (4) interstate bridges; ten (10) county road bridges, as well as
<br />associated environmental mitigation and recreational features (the “Diversion Channel and
<br />Associated Infrastructure” or the “DCAI”); and
<br /> WHEREAS, Congress has passed, and the President has signed, a 2016 appropriations bill that includes USACE funding for construction of the Project; and
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<br /> WHEREAS, to facilitate the design, construction, management, and financing of the DCAI,
<br />the Authority approved on September 2, 2015, a Notice of Intent to develop a Public-Private
<br />Partnership (“P3”) pursuant to North Dakota Century Code Chapter 48-02.1; and
<br /> WHEREAS, the Authority issued the Draft Request for Proposals on December 16, 2016,
<br />and is in the Request for Proposals phase that will seek proposals from the four (4) interested
<br />Developers for the DCAI; and
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