04. Updated Forest Mitigation Agreement with the Metro Flood Diversion Authority

4 “Section 404 Permit” means Department of the Army Permit, Permit No. NOW-2013- 1723-BJS, issued by the Omaha District, North Dakota Regulatory Office, of USACE to the Authority in accordance with Section 404 of the Clean Water Act or 33 U.S.C. § 1344. “State” means the State of North Dakota. “USACE” means the United States Army Corps of Engineers. Section 1.02 INTERPRETATION. The definition of terms in this Agreement will apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun will include the corresponding masculine, feminine, and neuter forms. The words “include,” “includes,” and “including” will be deemed to be followed by the phrase “without limitation.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument, or other document in the Agreement will be construed as referring to the agreement, instrument, or other document as amended, supplemented, or otherwise modified (subject to any restrictions in amendments, supplements, or modifications in the Agreement); (b) any reference in the Agreement to any person will be construed to include the person’s permitted successors and assigns; (c) all references in the Agreement to articles, sections, exhibits, and schedules will be construed to refer to articles and sections of, and exhibits and schedules to, this Agreement; and (e) the word “assets” and “property” will be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts, and contract rights. ARTICLE II. INTENT Section 2.01 FOREST MITIGATION REQUIREMENTS. The Parties agree and acknowledge that the construction of the Comprehensive Project will result in impacts to forested areas, and as a result, USACE is requiring that the Authority complete forest mitigation in accordance with the Section 404 Permit, the Forest Mitigation Plan, and the AMMP. Following the evaluation of parcels, the County Parcels have been identified as forest mitigation sites, and the County hereby authorizes the Authority to utilize the County Parcels in accordance with the terms and conditions set forth herein for mitigation and adaptive management. The County will execute and record a conservation easement substantially in the form attached hereto as Exhibit D to allow the Authority access to and use of the County Parcels for the purposes set forth in said easement. The bounds of any conservation easement will not come within one hundred (100) feet of the centerline of a County road to provide a buffer zone for future maintenance or expansion on the County road. Section 2.02 SUBJECT TO CHANGE. The Parties agree and acknowledge that the Section 404 Permit, the Forest Mitigation Plan, and the AMMP may be subject to change per discretion of USACE. In the event the Authority becomes aware of any potential change in any of the above- described documents, the Authority will notify the County in writing. The Authority and the County will thereafter negotiate in Good Faith to determine whether any amendments to this Agreement are warranted.