4.10. SR 06-03-2013 Elk REQUEST FOR ACTION
River
TO ITEM NUMBER
Mayor and City Council 4.10
AGENDA SECTION MEETING DATE PREPARED BY
Consent June 3, 2013 Rebecca Haug, Environmental
Administrator
ITEM DESCRIPTION REVIEWED By
2013 Archaeological Survey Consultant Jeremy Barnhart,Deputy Director, COD
REVIEWED BY
Cal Portner, City Administrator
ACTION REQUESTED
Approve by motion the proposal to hire Dr. Richard Rothaus of Trefoil Cultural and Environmental to
complete the 2013 Archaeological Survey at Bailey Point Nature Preserve.
BACKGROUND/DISCUSSION
Bailey Point Nature Preserve was purchased with a Minnesota DNR Natural and Scenic Area Grant,which
was approved by the City Council on November 22, 2012. The grant agreement requires the city to conduct
an archaeological survey prior to receiving final reimbursement grant funds for the acquisition.
To pay for the survey, the city applied for and received an $11,223 grant from the Minnesota Historical
Society, State Historic Preservation Office. A Request for Proposals (RFP) was advertised on the city
website and emailed to archaeologists. We received one proposal from Dr. Richard Rothaus.
Volunteers will do a majority of the work and also complete a survey of the event. The archaeologist will
donate additional time required for the dig since the total cost exceeds the grant amount. The public has
been noticed of volunteer opportunities and letters requesting donations to purchase food and beverages for
the volunteers have been mailed.
The survey will increase awareness about the history of the Bailey Point Nature Preserve and how it helped
shape what Elk River is today. It will also help the public better understand what archaeology entails and
help the Heritage Preservation Commission better address preservation needs.
The Parks &Recreation Commission envisions this park helping to educate the public about the history of
the area through recreational-related activities such a public archaeological excavation.
FINANCIAL IMPACT
MHS Grant $11,223
City contribution $ 1,000
Trefoil contribution $12,940
Total Project Cost $25,163
P O W E R E D BY
N:\Public Bodies\Agenda Packets\06-03-2013\Final\X4.10 sr Arch Dig.docx IN A f U RE]
The $1,000 city expense will be paid from the Professional Services budget for the Heritage Preservation
Commission.
ATTACHMENTS
• City of Elk River Bailey Park Excavation Proposal
• Standard Agreement for Professional Services
N:\Public Bodies\Agenda Packets\06-03-2013\Final\X4.10 sr Arch Dig.docx
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City of Elk River Bailey Park Excavation Proposal
Project: Bailey Point 2013 Public Archaeology Survey
Prepared for: Rebecca Haug, City of Elk River
Prepared by: Richard Rothaus, PhD
Date: 9 May 2013
Total Project Cost: $25,163
Funds Requested: $12,223
Trefoil In-Kind Contribution: $12,940
PROJECT DESCRIPTION
The City of Elk River wishes to complete a survey and archaeological excavation of the Bailey Point property
(Figure 1). The survey will be conducted in a manner that creates opportunities for meaningful involvement
by volunteers, similar to other projects hosted by the City of Elk River in the past. The park is approximately
25 acres and will include natural areas, improved paths, and unimproved paths (Figure 2). The property
location is at the intersection of the Elk River and the Mississippi River; this is an area of obvious and
extremely high archaeological probability.
In 2005 Rothaus surveyed a similar property (on the south side of the Elk River) and found multiple
prehistoric archaeological sites. The Bailey Park location is associated with the 1772 and 1773 battles
between the Ojibwe and the Dakota (Warren 1885). The Park also includes the location of the old
Sherburne County Fairgrounds (1916-1950s); no structures remain from that use (Rothaus, McFarlane, and
Haug 2004; Rothaus, McFarlane, and Haug 2005; Warren 1885). Preliminary inspection of the property by
Rothaus in 2011 identified several areas suitable for testing by both shovel testing and excavation of formal
units (1x1m squares) (Rothaus 2011).
The Bailey Park property offers several challenges and opportunities. The City hopes,in the future, to use the
property for excavations and other activities that will allow the public to participate. Given the location and
certain presence of archaeological sites, this project has been designed to meet the requirements of the grant
program, while at the same time being cost effective and protecting the property from unnecessary testing
and other activities that can hamper future archaeological excavations.
The archaeological survey will clarify site details and eligibility for Local and/or National Register of Historic
Place designation. Additionally, the survey will facilitate site preservation and identify additional research
needs and opportunities. The archaeological survey is designed to be performed with substantial participation
from public volunteers as well as community members with local expertise and knowledge. The work will be
organized to facilitate not only direct participation but also daily tours and media opportunities.
Minnesota: 1965 W. Highview Dr.. Sauk Rapids,MN Phone: 320-761-9090 Fax: 866-651-5859
56379 Email: rothaus@trefoilcultural.com
North Dakota: PMB#149, 4302 13th Ave S, Suite 4, Skype: richard.m.rothaus
Fargo,ND 58103 Twitter: Richard—Rothaus
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PROJECT STANDARDS
• The Secretary of the Interior's Standards and Guidelines for Archaeology and Historic Preservation,
particularly the Standards for Identification, Evaluation, and Registration published in the Federal
Register of September 29, 1983.
• National Register Bulletins 16A and 1613, other applicable bulletins, and the Minnesota SHPO
Supplemental Instructions for the Preparation of the National Register Form.
• SHPO Manual for Archaeological Projects in Minnesota Uune 2001).
PROJECT TASKS:
• Assess archaeological potential of landforms based on historical and environmental data.
• Visual examination,pedestrian and/or subsurface survey of the property as appropriate.
• Soil probes as necessary to check for buried soils with potential to contain archaeological materials
within the property.
• Shovel tests as necessary to identify sites and site boundaries.
• Formal excavation units as appropriate to investigate identified sites.
• Completion of archaeological site forms for all newly-identified archaeological sites.
• Preliminary determination of site potential eligibility for the National Register of Historic Places.
• Complete a final report to standards required by responsible agencies.
• Identify future research needs and opportunities
• Identify preservation needs and opportunities.
PROJECT PERSONNEL
Dr. Richard M. Rothaus: Rothaus is President of Trefoil Cultural and Environmental and a Research
Associate at the Center for Heritage Renewal at North Dakota State University. Rothaus has experience in
large-scale archaeological survey, probability modeling, palaeoenvironmental research, and geomorphological
and geological analysis. He has conducted work in North America, Central America, Asia, and the Middle
East. Rothaus meets the required qualifications for Prehistoric Archaeology, Historic Archaeology and
History under the Secretary of Interior Professional Qualifications Standards (36 CFR Part 61). Rothaus has
been the principal investigator on numerous large surveys in Minnesota, Iowa and North Dakota. In
Minnesota, Rothaus developed and tested a probability model for Elk River township that resulted in the
discovery of seven previously unidentified prehistoric sites. Rothaus has conducted several projects and
public excavations for the City of Elk River.
Joseph McFarlane: Mr. McFarlane has been conducting cultural resource investigations in the upper
Midwest for over twenty years. His duties include project management, archival research, fieldwork,
laboratory work, analysis and report preparation. Mr. McFarlane has worked for both private firms and
public agencies performing reconnaissance, evaluation, and data recovery excavations on both historic and
prehistoric sites. He has authored and co-authored over one hundred cultural resource management reports
for clients and project review offices. Mr. McFarlane specializes in remote access projects and his academic
concentrations are in archaeological field methods and geomorphology. He has assisted with several public
excavations conducted for the City of Elk River.
James Cummings: Mr. Cummings has thirty years experience in cultural resource management and
interpretation. Cummings has developed significant expertise in artifact identification and analysis, especially
prehistoric ceramics. He most recently has been reexamining and revaluating the artifacts from the Petaga
Point site and the Cooper site in Mille Lacs Kathio State Park. Cummings has produced numerous
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brochures, booklets, outdoor signs and kiosks, as well as oral programs interpreting Minnesota prehistory.
Mr. Cummings has assisted with several public excavations conducted for the City of Elk River.
KNOWLEDGE OF ELK RIVER'S ARCHAEOLOGICAL RESOURCES
Rothaus has been studying the history and prehistory of Elk River since 2003, when he created an overview
study and probability model for the historic and prehistoric archaeological resources of township. The
project resulted in a report for the City of Elk River and a publication in the Minnesota Archaeologist. Fieldwork
associated with that project identified nine previously unknown prehistoric sites, and sparked the idea for
archaeological excavations conducted by volunteers (Rothaus, McFarlane, and Haug 2004; Rothaus,
McFarlane, and Haug 2005). In subsequent years, Rothaus conducted excavations at the Hoebelheinrich site
(21SH0052) (Rothaus and McFarlane 2005). In 2011 he assisted Alexa McDowell with the National Register
nomination of the Elk River water tower (McDowell 2011).
EXPERIENCE IN PUBLIC EDUCATION AND VOLUNTEER-BASED EXCAVATIONS
Rothaus and the City of Elk River have previously cooperated on such activities with great success. In 2004,
Rothaus offered tours of sites discovered in Elk River township, and well over 125 individuals participated.
These tours, and requests from visitors, sparked the idea for excavations with public participation, and the
City of Elk River sponsored such work at the Hoebelheinrich site in 2005, 2006 and 2007. During those
projects over 250 individuals were able to excavate, and an additional 250 individuals participated in tours.
Those excavations allowed us to not only demonstrate the role of the citizen-scientist in archaeology, but also
fine-tune the methods and techniques that give volunteers the best experience. Rothaus has continued to do
such projects when possible. In 2012 he led a volunteer dig and investigation of the Brown house in Otsego.
In May 2013 he will be leading a volunteer crew in excavations at the Johnson Boat Works in White Bear
Lake,MN.
Rothaus is a Research Associate at the Center for Heritage Renewal at North Dakota State University, and he
maintains close ties with a variety of regional educational institutions. Before entering the private sector, he
was Assistant Vice-President for Research and tenured full professor of History at St. Cloud State University.
PUBLIC PARTICIPATION PLAN
Public participation will be encouraged using the very successful methods proven in similar projects.
Volunteers will be paired with professional staff, and encouraged to participate in all aspects of the field work.
Teams will consist of three volunteers and one professional archaeologist. Volunteers will have the
opportunity to excavate using trowels and shovels, screen soil, find and identify artifacts, and assist with
recording data. Volunteers will sign up for '/Z day experiences (a morning crew and an afternoon crew). The
proposed schedule will allow up to 132 individuals to participate. Daily tours will be given at 2pm for
interested individuals.
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Figure 3:Hoebelheinrich 2005 Public Dig
PROPOSED SCHEDULE
Day Tasks # of Staff # of Volunteers
2 days TBD Background Research 1 0
and Pre
June 13 Prepare Equipment and 3 0
Site
June 14 Shovel Testing 5 16maximum 8 morning, 8 evening)
June 15 Excavation Units, Shovel 5 20maximum (8 morning, 12 afternoon)
Testing
June 16 Excavation Units 5 24 maximum 12 morning, 12 afternoon
June 21 Excavation Units 5 24 maximum 12 morning, 12 afternoon
June 22 Excavation Units 5 24 maximum 12 morning, 12 afternoon
June 23 Excavation Units 5 24 maximum 12 morning, 12 afternoon
June 24 Staff Day. Record 3 0
keeping, additional
technical excavation.
4 days TBD Report and artifact 1 0
analyses
BAILEY PARK ARCHAEOLOGICAL POTENTIAL
A visual inspection of the park area was conducted in December 2011. The northern portion of the property
(indicated as "Native Prairie Planting" in Figure 2) is a level area that appears to have been tilled and perhaps
graded. This area likely was part of the Fairground,perhaps used for parking.
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Figure 4:Northern Area
The southern portion of the property (indicated as Natural Open Space in Figure 2) is a mixture of grasses,
shrubs and trees. This area likely was part of the Fairground. There are several mature deciduous trees in this
area, as well as an eagle's nest. The level of ground disturbance in this area has not been determined, but
does not appear to be extensive. There are some low lying drainages and channels that may be from natural
flood processes.
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1
Figure 5: Southern Area
The riverbank areas are heavily vegetated with mature deciduous trees. Numerous old river banks and
drainages are evident, and the bank is (as expected) an area of active sediment deposition and erosion. There
is moderate ground disturbance (from natural processes) along the river bank.
7
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Figure 6:Riverbank
Based on the visual inspection, the area seems to have high potential for intact historic and prehistoric
archaeological deposit. No above ground indicators of archaeological sites were,however,noted.
ARCHAEOLOGICAL SURVEY RECOMMENDATIONS
The survey techniques proposed have been designed to adequately test for the presence, absence and
potential significance of archaeological material while simultaneously avoiding over-testing an area that may
be used for future research. Because the area will be used as a park, shovel testing will initially be focused on
areas where ground disturbing activity or heavy usage may occur. The method described below would
constitute a maximum of approximately 250 shovel tests at 30m and 15m intervals. 125 shovel tests will
probably be sufficient, however, to accomplish the goals. Formal excavation units (1x1m square) will also be
placed on three terraces identified in 2011 (Figure 1), and in locations of interest as identified by shovel
testing.
Fairground Research
Archival Research will be conducted to determine, if possible, the locations of specific fairground structures
and use areas.
Shovel Testing (125-250 tests
• Shovel testing intervals should be at 30m intervals. If shovel tests are negative or disparate in
period (e.g. one is only historic material, the next is only prehistoric material), the interval to
adjacent shovel tests will be closed to 15m. This technique works well for landforms with clearly
defined boundaries (i.e. the rivers). It avoids excessive testing of identified sites; once the site is
identified, other techniques are more appropriate for continued research.
8
• Shovel testing should be performed along the ADA Compliant Trail, the Unpaved Trail, the
northern and western border of the Native Prairie Planting and the Parking Area as indicted in
Exhibit B. At 15m intervals this would comprise approximately 200 shovel tests.
• Shovel testing should be performed at the areas marked as terraces in Exhibit A. These areas
were noted during the visual inspection as locations particular likely to contain archaeological
materials based on slope and elevation.
• Shovel tests should be 35 to 40cm in diameter and excavated to culturally sterile subsoil
(subsolum or C-horizon). All shovel test soils should be screened through 1/4 inch hardware cloth
and examined for artifacts and ecofacts. Soil descriptions, generalized colors and basic
stratigraphy should be recorded for each test, and the test holes should be immediately back-filled.
Artifacts should be photographed and identified. Test locations should be mapped with a GPS
unit.
• If areas of disturbed soils unlikely to contain archaeological materials are encountered (e.g. recent
historic fill),manual soil probes (minimum 3/4 inch diameter) should be substituted for shovel tests
to determine the boundary of the disturbance.
Excavation Units (6-10 units
1x1 meter excavation units will be excavated in 5cm levels using trowels or shovel skimming. The first
excavation units will be placed on the terraces as indicated in Figure 1, as these are areas of high
probability to contain archaeological materials. Levels will be recorded using a standard excavation form.
Data recorded on level forms typically included elevation, details of screening, soil texture, soil color, soil
structure, soil consistency, rock fragments, finds summary, record of samples, and description. Levels will
be photographed and scale drawings of features, fire-cracked rock concentrations, and other relevant
material will be made as appropriate. Plans and profiles will be drawn for each trench. The PI will
maintain a narrative notebook.
All sediment removed from excavation units will be dry-screened through 1/4 inch mesh hardware cloth.
A one liter soil sample from each feature will be processed through 1/16-inch mesh by water screening or
flotation for light fraction (floatable) floral and faunal remains and small flaking debris and heavy fraction
floral and faunal remains. Levels that evidence major disturbance or lack of integrity will be excluded
from this requirement. A soil column or continuous core will be lifted from the profile of each unit. This
material will be retained for possible sediment and microstratigraphic analysis.
PROJECT CONDITIONS
• Trefoil will not be held responsible for weather delays (e.g. snow,heavy rain, saturated soils).
• Client will arrange all necessary permissions to access land.
• Trefoil will not be held responsible if permission to access land is denied, and client is responsible for
mobilization fees if permission to access land is denied while a crew is in the field.
• Trefoil is responsible for all appropriate licensing.
DELIVERABLES
• Final Report that details the background research, fieldwork results, and analysis that places the
archaeological resources into local and statewide historic contexts. 3 papers copies and 1 digital.
• Supporting materials, including but not limited to digital photographs, GPS and GIS data, field notes
and sketch maps, site maps, and a City of Elk River map showing the site and excavation locations.
• Digital and paper copies of appropriate material for collection at the Minnesota State Historical
Society and the Sherburne County Historical Society.
9
• State of Minnesota Archaeological Site Forms.
• Presentations (up to two) to the Elk River Historic Preservation Commission, City Council and
Sherburne History Center Board.
REQUESTED CITY OF ELK RIVER CONTRIBUTIONS
• Promote and advertise the event.
• Coordinate media coverage.
• Manage the volunteer sign-up lists and schedules.
• Manage the volunteer liability waivers.
• Provide staff as needed to assist with onsite management.
• Coordinate in-kind support (e.g. water, food).
DETAILED PROJECT BUDGET
Personnel Kate Hrs Total
Rothaus $ 81.00 110 $8,910.00
Senior $ 58.50 120 $ 7,020.00
Assistant $ 31.50 160 $5,040.00
Subtotal $20,970.00
In-Kind $10,490.00
Elk River $10,930.00
Expenses Rate # Total
Mileage $ 0.55 2240 $1,232.00
Printing 400 $ 0.09 $36.00
Report Binding 5 $ 5.00 $25.00
Elk River $1,293.00
Fees Rate # Total
DGPS (per Da $ 150.00 7 $1,050.00
ATV $ 100.00 7 $700.00
Excavation Supplies (per 1 x1 $ 75.00 6 $450.00
Artifact Photography $ 250.00 1 $250.00
Artifact Curation $ 450.00 1 $450.00
Subtotal $2,900.00
In-Kind $2,450.00
Elk River $450.00
PROJECT TOTAL $25,163.00
In-Kind Contribution $12,940.00
Elk River Contribution $12,223.00
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Please do not hesitate to contact me with questions or concerns at 320-761-9090 or
rothaus @trefoilcultural.com.
Respectfully yours,
Richard M. Rothaus,PhD
11
WORK CITED
McDowell, Alexa. 2011. "National Register of Historic Places Registration Form, Elk River Water Tower, Elk
River, Sherburne County, Mn". Boone, IA: AKAY Consulting.
Rothaus, R. M. 2011. "Phase Ia Cultural Resource Survey, Bailey Park Proposal". Sauk Rapids, MN: Trefoil.
Rothaus, R. M., and J. McFarlane. 2005. "2005 Excavations at the Hoebelheinrich Site (21SH0052)". St.
Cloud,MN: St. Cloud State University.
Rothaus, R. M., J. McFarlane, and J. Haug. 2004. "Prehistoric and Early Historic Heritage of Elk River,
Minnesota: Current Knowledge and Probability Modeling." Minnesota Archaeologist 63: 2-21.
Rothaus, R. M., J. McFarlane, and Jason Haug. 2005. "Prehistoric and Euroamerican Archaeology of Elk
River Township, Minnesota: Probability Modeling and Reconnaissance Survey". St. Cloud, MN: St.
Cloud State University.
Warren,William. 1885. History of the Ojibway People. St. Paul: Minnesota Historical Society Press.
12
City of
Elk - _
River
13065 Orono Parkway
Elk River,MN 55330
STANDARD AGREEMENT FOR PROFESSIONAL SERVICES
THIS AGREEMENT ("Agreement") is made this day of , 20 ,between
the City of Elk River,Minnesota ("City's,whose business address is 13065 Orono Parkway,
Elk River,MN 55330 and Richard Rothaus, PhD ("Consultant") whose business address is
1965 W. Highview Dr., Sauk Rapids MN 56379.
PRELIMINARY STATEMENT
The City has adopted a policy regarding the selection and hiring of consultants to provide a
variety of professional services for City projects. That policy requires that persons, firms, or
corporations providing such services enter into written agreements with the City. The
purpose of this agreement is to set forth the terms and conditions for the professional
services Consultant will provide in connection with 2013 Public Archaeological Survey,
herein referred to as the "Work".
The City and Consultant agree as follows:
1. Work. The Consultant agrees to provide the professional services described in
Exhibit"A" attached hereto (the "Work").
2. Time for Performance of Services. The Consultant shall perform the services
described in Exhibit A hereto.
3. Compensation for Services. City agrees to pay the Consultant$ 12,223 for the
Work. Any changes in the scope of the Work which may result in additional
compensation due to the Consultant shall require prior written approval by an
authorized representative of the City or by the City Council. The City will not pay
additional compensation for services that do not have prior written authorization.
4. The City agrees to provide the Consultant with the information required to complete
the Work.
5. Method of Payment. The Consultant shall submit itemized bills for professional
services performed under this Agreement on a monthly basis. Bills submitted shall
be paid in the same manner as other claims made to the City.
Page 1 of 9 Standard Agreement For Professional Services P INAWRE-1 0 W E R E o s Y
6. Project Manager and Staffing. The Consultant has designated the individuals
identified in Exhibit A as the Project Manager to serve on the Project. The Project
Manager shall be assisted by other staff members as necessary to facilitate the
completion of the Project in accordance with the terms established herein.
Consultant may not remove or replace the Project Manager without the approval of
the City.
7. Standard of Care. Standard of Care. Consultant shall exercise the same degree of
care, skill and diligence in the performance of the Work as is ordinarily exercised by
members of the profession under similar circumstances in Minnesota. Consultant
shall be liable to the fullest extent permitted under applicable law,without limitation,
for any injuries,loss, or damages proximately caused by Consultant's breach of this
standard of care. Consultant shall put forth reasonable efforts to complete its duties
in a timely manner. Consultant shall not be responsible for delays caused by factors
beyond its control or that could not be reasonably foreseen at the time of execution
of this Agreement. Consultant shall be responsible for costs or damages arising
from unreasonable delays in the completion of the Work.
8. Audit Disclosure. The Consultant shall allow the City or its duly authorized agents
reasonable access to such of the Consultant's books and records as are pertinent to
the work performed under this Agreement. Any reports,information,data, etc.
given to, or prepared or assembled by, the Consultant under this Agreement which
the City requests to be kept confidential shall not be made available to any individual
or organization without the City's prior written approval. All finished or unfinished
documents, data, studies, surveys, drawings, maps,models,photographs, and reports
prepared by the Consultant shall become the property of the City upon termination
of this Agreement,but Consultant may retain copies of such documents as records
of the services provided.
9. Term. The term of the Agreement shall be from June 1 through October 31, 2013
the date of signature by the parties notwithstanding. This Agreement may be
extended upon the written mutual consent of the parties for such additional period
as they deem appropriate,and upon the terms and conditions as herein stated.
10. Termination. This Agreement may be terminated by the Consultant effective upon
sixty (60) days'written notice delivered to the City at the address written above. The
City may terminate this Agreement effective immediately,upon written notice to the
consultant. Upon termination under this provision,the Consultant shall be paid for
services rendered and reimbursable expenses until the effective date of termination.
If, however the City terminates this Agreement because the Consultant has failed to
perform in accordance with this Agreement,no further payment shall be made to the
Consultant,and the City may retain another consultant to undertake or complete the
Work.
Page 2 of 9 Standard Agreement For Professional Services P U N E R E o R Y
11. Independent Consultant. At all times and for all purposes herein,the Consultant
is an independent contractor and not an employee of the City. No statement herein
shall be construed so as to find the Consultant an employee of the City.
12. Non-Discrimination. During the performance of this Agreement,the Consultant
shall not discriminate against any employee or applicant for employment because of
race, color, creed,religion,national origin, sex, and marital status, status with regard
to public assistance, disability, or age. The Consultant shall post in places available
to employees and applicants for employment,notices setting forth the provision of
this non-discrimination clause and stating that all qualified applicants will receive
consideration for employment. The Consultant shall incorporate the foregoing
requirements of this paragraph in all of its subcontracts for program work,and will
require all of its subcontractors for such work to incorporate such requirements in all
subcontracts for program work.
13. Assignment. Neither party shall assign this Agreement,nor any interest arising
herein,without the prior written consent of the other party.
14. Services Not Provided For. No claim for services furnished by the Consultant not
specifically provided for in Exhibit A shall be honored by the City.
15. Severability. The provisions of this Agreement are severable. If any portion hereof
is, for any reason,held by a court of competent jurisdiction to be contrary to law,
such decision shall not affect the remaining provisions of this Agreement.
16. Entire Agreement. The entire agreement of the parties is contained herein. This
Agreement supersedes all oral agreements and negotiations between the parties
relating to the subject matter hereof as well as any previous agreements presently in
effect between the parties relating to the subject matter hereof. Any alterations,
amendments,deletions, or waivers of the provisions of this Agreement shall be valid
only when expressed in writing and duly signed by the parties, unless otherwise
provided herein.
17. Compliance with Laws and Regulations. In providing services hereunder,the
Consultant shall abide by all statutes, ordinances,rules and regulations pertaining to
the provisions of services to be provided. The Consultant and City,together with
their respective agents and employees, agree to abide by the provisions of the
Minnesota Data Practices Act,Minnesota Statutes Section 13, as amended, and
Minnesota Rules promulgated pursuant to Chapter 13. Any violation of statutes,
ordinances,rules and regulations pertaining to the services to be provided shall
constitute a material breach of this Agreement and entitle the City to immediately
terminate this Agreement.
18. Waiver. Any waiver by either party of a breach of any provision of this Agreement
shall not affect,in any respect,the validity of the remainder of this Agreement.
19. Indemnification. Consultant agrees to defend,indemnify and hold harmless the
City and its officials, employees and agents from any liability, claims, damages, costs,
Page 3 of 9 Standard Agreement For Professional Services P u w E R E o R Y
losses judgments, or expenses,including reasonable attorney's fees, resulting directly
or indirectly from a negligent act or omission (including without limitation
professional errors or omissions) of the Consultant,its agents, employees, or
subcontractors in the performance of the services provided by this Agreement and
against all losses by reason of the failure of said Consultant fully to perform,in any
respect, all obligations under this Agreement.
20. Insurance.
A. General Liability. Prior to starting the Work, Consultant shall procure,
maintain and pay for such insurance as will protect against claims for bodily
injury or death, or for damage to property,including loss of use,which may
arise out of operations by Consultant or by any subcontractor or by anyone
employed by any of them or by anyone for whose acts any of them may be
liable. Such insurance shall include, but not be limited to,minimum
coverages and limits of liability specified in this Paragraph, or required by
law. The policy(ies) shall name the City as an additional insured for the
services provided under this Agreement and shall provide that the
Consultant's coverage shall be primary and noncontributory in the event of a
loss.
B. Consultant shall procure and maintain the following minimum insurance
coverages and limits of liability on this Project:
Workers Compensation Statutory Limits
Employer's Liability $500,000 each accident
$500,000 disease policy limit
$500,000 disease each employee
Comprehensive General
Liability $1,500,000 property damage and
bodily injury per occurrence
$2,000,000 general aggregate
$2,000,000 Products —Complete
Operations Aggregate
$100,000 fire legal liability each
occurrence
$5,000 medical expense
Comprehensive Automobile
Liability $1,000,000 combined single limit each
accident (shall include coverage for all
owned,hired and non-owned vehicles.
Page 4 of 9 Standard Agreement For Professional Services P u w E R E o R Y
Umbrella or Excess Liability $1,000,000
C. The Comprehensive General/Commercial General Liability policy(ies) shall
be equivalent in coverage to ISO form CG 0001, and shall include the
following:
a. Premises and Operations coverage with no explosions, collapse, or
underground damage exclusion (XCU).
b. Products and Completed Operations coverage. Consultant agrees to
maintain this coverage for a minimum of two (2) years following
completion of its work. Said coverage shall apply to bodily injury and
property damage arising out of the products-completed operations
hazard.
c. Personal injury with Employment Exclusion (if any) deleted.
d. Broad Form CG 0001 0196 Contractual Liability coverage, or its
equivalent.
e. Broad Form Property Damage coverage,including completed
operations, or its equivalent.
f. Additional Insured Endorsement(s),naming the "City of Elk River"
as an Additional Insured, on ISO form CG 20 10 07 04 or such other
endorsement form as is approved by the City.
g. If the Work to be performed is on an attached community,there
shall be no exclusion for attached or condominium projects.
h. "Stop gap" coverage for work in those states where Workers'
Compensation Insurance is provided through a state fund if
Employer's liability coverage is not available.
i. Severability of Insureds provision.
D. Professional Liability Insurance. The Consultant agrees to provide to the
City a certificate evidencing that they have in effect,with an insurance
company in good standing and authorized to do business in Minnesota, a
professional liability insurance policy. Said policy shall insure payment of
damage for legal liability arising out of the performance of professional
services for the City. Said policy shall provide an aggregate limit of
$2,000,000. Said policy shall not name the City as an insured.
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E. Consultant shall maintain in effect all insurance coverages required under this
Agreement at Consultant's sole expense and with insurance companies
licensed to do business in the state in Minnesota and having a current A.M.
Best rating of no less than A-,unless specifically accepted by City in writing.
In addition to the requirements stated above,the following applies to the
insurance policies required under this Paragraph:
a. All policies, except the Professional Liability Insurance policy, shall
be written on an"occurrence" form ("claims made"and "modified
occurrence" forms are not acceptable);
b. All policies, except the Professional Liability Insurance policy, shall
be applied on a "per project"basis;
c. All policies, except the Professional Liability Insurance and Worker's
Compensation Policies, shall contain a waiver of subrogation naming
"the City of Elk River";
d. All policies, except the Professional Liability Insurance and Worker's
Compensation Policies, shall name "the City of Elk River" as an
additional insured;
e. All policies, except the Professional Liability Insurance and Worker's
Compensation Policies, shall insure the defense and indemnity
obligations assumed by Consultant under this Agreement; and
f. All policies shall contain a provision that coverages afforded
thereunder shall not be canceled or non-renewed, nor shall coverage
limits be reduced by endorsement,without thirty (30) days prior
written notice to the City.
A copy of the Consultant's Certificate of Insurance which evidences
the compliance with this Paragraph 20, must be filed with City prior to
the start of Consultant's Work. Upon request, a copy of the Consultant's
insurance declaration page, Rider and/or Endorsement,as applicable shall be
provided. Such documents evidencing Insurance shall be in a form
acceptable to City and shall provide satisfactory evidence that Consultant has
complied with all insurance requirements. Renewal certificates shall be
provided to City prior to the expiration date of any of the required policies.
City will not be obligated, however,to review such Certificate of Insurance,
declaration page, Rider, Endorsement or certificates or other evidence of
insurance, or to advise Consultant of any deficiencies in such documents and
receipt thereof shall not relieve Consultant from,nor be deemed a waiver of,
City's right to enforce the terms of Consultant's obligations hereunder. City
reserves the right to examine any policy provided for under this paragraph.
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F. Effect of Consultant's Failure to Provide Insurance. If Consultant fails to
provide the specified insurance,then Consultant will defend,indemnify and
hold harmless the City,the City's officials, agents and employees from any
loss, claim, liability and expense (including reasonable attorney's fees and
expenses of litigation) to the extent necessary to afford the same protection
as would have been provided by the specified insurance. Except to the
extent prohibited by law, this indemnity applies regardless of any strict
liability or negligence attributable to the City (including sole negligence) and
regardless of the extent to which the underlying occurrence (i.e.,the event
giving rise to a claim which would have been covered by the specified
insurance) is attributable to the negligent or otherwise wrongful act or
omission (including breach of contract) of Consultant,its subcontractors,
agents, employees, or delegates. Consultant agrees that this indemnity shall
be construed and applied in favor of indemnification. Consultant also agrees
that if applicable law limits or precludes any aspect of this indemnity,then
the indemnity will be considered limited only to the extent necessary to
comply with that applicable law. The stated indemnity continues until all
applicable statutes of limitation have run.
If a claim arises within the scope of the stated indemnity,the City may
require Consultant to:
a. Furnish and pay for a surety bond, satisfactory to the City,
guaranteeing performance of the indemnity obligation, or
b. Furnish a written acceptance of tender of defense and indemnity
from Consultant's insurance company.
Consultant will take the action required by the City within fifteen (15) days of
receiving notice from the City.
21. Records Access. The Consultant shall provide the City access to any books,
documents,papers,and records which are directly pertinent to the specific contract,
for the purpose of making audit, examination, excerpts, and transcriptions, for three
years after final payments and all other pending matters related to this contract are
closed.
22. Ownership of Documents. All plans, diagrams, analyses, reports and information
generated in connection with the performance of the Agreement ("Information")
shall become the property of the City. The City may use the Information for its
purposes and the Contractor also may use the Information for its purposes. Reuse
of the Information for the purposes of the project contemplated by this Agreement
("Project") does not relieve any liability on the part of the Contractor,but any reuse
of the Information by the City or the Contractor beyond the scope of the Project is
without liability to the other,and the party reusing the Information agrees to defend
and indemnify the other from any claims or liability resulting therefrom.
Page 7 of 9 Standard Agreement For Professional Services P u w E R E o R Y
23. Subcontractor. The Consultant shall not enter into subcontracts for services
provided under this Agreement except as noted in Exhibit A,without the express
written consent of the City. The Consultant shall pay any subcontractor involved in
the performance of this Agreement within the ten (10) days of the Consultant's
receipt of payment by the City for undisputed services provided by the
subcontractor. If the Consultant fails within that time to pay the subcontractor any
undisputed amount for which the Consultant has received payment by the City,the
Consultant shall pay interest to the subcontractor on the unpaid amount at the rate
of 1.5 percent per month or any part of a month. The minimum monthly interest
penalty payment for an unpaid balance of$100 or more is $10. For an unpaid
balance of less than $100, the Consultant shall pay the actual interest penalty due to
the subcontractor. A subcontractor who prevails in a civil action to collect interest
penalties from the Consultant shall be awarded its costs and disbursements,
including attorney's fees,incurred in bringing the action. In addition,no
subcontractor can file alien against the City.
24. Dispute Resolution/Mediation. Each dispute, claim or controversy arising from
or related to this Agreement or the relationships which result from this Agreement
shall be subject to mediation as a condition precedent to initiating arbitration or legal
or equitable actions by either party. Unless the parties agree otherwise, the
mediation shall be in accordance with the Commercial Mediation Procedures of the
American Arbitration Association then currently in effect. A request for mediation
shall be filed in writing with the American Arbitration Association and the other
party. No arbitration or legal or equitable action may be instituted for a period of
ninety (90) days from the filing of the request for mediation unless a longer period of
time is provided by agreement of the parties. Cost of mediation shall be shared
equally between the parties. Mediation shall be held in the City of Elk River unless
another location is mutually agreed upon by the parties. The parties shall
memorialize any agreement resulting from the mediation in a Mediated Settlement
Agreement,which Agreement shall be enforceable as a settlement in any court
having jurisdiction thereof.
25. Conflicts. No salaried officer or employee of the City and no member of the City
Council of the City shall have a financial interest,direct or indirect,in this
Agreement. The violation of this provision renders the Agreement void. Any
federal regulations and applicable state statutes shall not be violated.
26. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be considered an original.
27. Entire Agreement. This Agreement constitutes the entire agreement of the parties
and supersedes all prior communications,understandings and agreements relating to
the subject matter hereof,whether oral or written.
Page 8 of 9 Standard Agreement For Professional Services P U N E R E o R Y
28. Governing Law. This Agreement shall be controlled by laws of the State of
Minnesota. Executed as of the day and year first written above.
City of Elk River
Mayor
City Clerk
Firm Name
By:
Its:
Page 9 of 9 Standard Agreement For Professional Services P u w E R E o R Y