05. Memorandum of Understanding for 36th Street

Maple River Water Resource District Cass County North Dakota Soybean Processors, LLC Agreement Drain 62 Relocation Page 4 the bid specifications and contracts for the Projects: (1) are in compliance with the requirements, terms and conditions of this Agreement; (2) contain representations, warranties, “make-right” obligations, indemnities granted to the County, and remedies for breach of contract to complete the work and deliver the Projects in compliance with the contract; (3) contain firm deadlines in order for the Projects to meet the proposed construction timeline attached as Exhibit G, with commercially reasonable liquidated damages for unexcused delays, set-off rights, etc. and obligations to proceed with the work on a time is of the essence basis and in a diligent and expeditious manner, provided, for clarity, the County does not warrant or guarantee completion of construction of the Projects by a date certain; and (4) contain customary and commercially reasonable change order provisions for construction contracts of this type, including a requirement that all parties to the contract must sign any change order for it to be effective and disputed change order procedures; and the County shall be responsible for exercising all rights and pursuing all remedies available to the County under such contracts, including without limitation the pursuit of available liquidated damages and disputing any change order in good-faith if there is a good-faith basis to dispute the change order. For purposes of the foregoing provisions, the County agrees to consult with the District and NDSP in good faith on the final form of any construction contracts for the Projects for review and comment by the District and NDSP, prior to entering into any construction contracts for the Projects. The County will require its contractors and consultants to secure Commercial General Liability, Auto, and Excess or Umbrella Policies in connection with the Projects, and will require that those policies name the County, the District and NDSP as additional insured parties; the policies must be primary and noncontributory regarding any other insurance available to the County, the District and NDSP, and the policies must each contain a “waiver of subrogation” that waives any right to recovery any of those contractors’ or consultants’ insurance companies might have against the County, the District or NDSP. 2. Rights of Way. To the extent any of the Projects require any additional rights of way from NDSP, NDSP will convey the requisite right of way or easements on, over, under and across the NDSP Property as necessary and reasonably determined by NDSP, the County and the District, at no cost to the County or the District. 3. Installation, Operation, Maintenance, Repair and Replacement of NDSP’s Utilities. The parties acknowledge that the road improvements to portions of 36th Street in Section 4 of Everest Township and Sections 33 and 34 of Casselton Township to accommodate construction of NDSP’s soybean processing plant as well as future plant operations required removal and replacement of existing intercept culverts and installation of three 24” RCPs and a single 58” x 36” RCPA, on the District’s Drain right of way, in the late Summer and Fall of 2022 by NDSP, as depicted on the plans attached as Exhibit C (“NDSP’s Utilities”); NDSP constructed the NDSP Utilities in accordance with a Utility Permit approved by the District on August 4, 2022 (the “Utility Permit”). In connection with taking over responsibility and jurisdiction of the County Road, the County hereby agrees to take over full responsibility and jurisdiction of NDSP’s Utilities and agrees to operate, maintain, repair and replace NDSP’s Utilities at the County’s sole cost and expense. Upon completion of the installation and construction of NDSP’s Utilities in