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4.10 SR 04-15-2024City of Elk - River To City Council Meeting Date April 15, 2024 Item Description Wastewater Settlement Agreement Request for Action Item Number 4.10 Prepared By Justin Femrite, Public Works Director/Chief Engineer Reviewed by: Justin Femrite Cal Portner Tina Allard Action Requested Approve, by motion, settlement agreement relating to the Wastewater Treatment Facility Improvements Project Background/Discussion The attached settlement agreement has been reached between all parties pertaining to their responsibilities surrounding the replacement of an undersized screw press dewatering system originally installed at the Wastewater Treatment Facility as part of the contract completed in 2017. The agreement details the replacement of the existing screw presses with a centrifuge dewatering system. The settlement reflects a compromise to all the legal claims we had originally brought against Bolton & Menk. The settlement and city cost obligations are consistent with the details provided and the direction given at the September 5, 2023, closed session. Financial Impact The cities' obligations towards the settlement agreement will be covered through the Wastewater Fund. Mission/Policy/Goal Explain how this meets the city's mission, current policies and/or council goals Attachments 1. 2024.03.26 Settlement Agreement - Elk River Wastewater Treatment Center 2. 2024.04.03 Scope Agreement Final 3. Exhibit A- I - Elk River Wastewater Treatment Center The Elk River Vision A avelcoming community with revolutionary and spirited resourcefulness, exceptional service, and community p p W E H E 0 B engagement that encourages and inspires prospertINMURd201i SETTLEMENT AGREEMENT AND RELEASE THIS SETTLEMENT AGREEMENT AND RELEASE ("Agreement") is fully effective as of March , 2024 and is entered into by the following parties on behalf of themselves and their heirs, personal representatives, successors, assigns, subrogees, insurers, attorneys and persons identified in interest with all of the foregoing (individually a "Party" and collectively the "Parties"): I. City of Elk River, Minnesota (sometimes referred to as "the City" or "the Plaintiff'); 2. Bolton & Menk, Inc. ("BMI"); 3. Rice Lake Contracting Corp. ("RLC"); 4. Vessco, Inc. ("Vessco"); 5. Schwing Bioset Incorporated ("SBI"); The Parties identified in Paragraphs 2 through 5 above are hereinafter collectively referred to as the "Defendants." RECITALS A. The City commenced an action against BMI in Sherburne County, Minnesota, Court File No. 71-CV-22-399 (the "Action") claiming damages for breach of contract and professional negligence arising out of the City of Elk River's Wastewater Treatment Facility Improvements Project (the "Original Project."). BMI was the engineer for the Original Project and RLC was the general contractor for the Original Project. The Original Project scope of work included the installation of wastewater screw presses and Vessco was the screw press supplier. The City alleged that BMI specified screw presses that did not meet the performance requirements of the City. BMI denied the City's claims and brought third -party claims for contribution, indemnity, and negligence against RLC, Vessco, and SBL BMI also brought breach of contract claims against Vessco and RLC based on its alleged third party beneficiary status, and also brought negligent misrepresentation and promissory estoppel claims against SBI. B. The Defendants denied all liability for the claims alleged and all damages claimed against each other in the Action. City of Elk River / BMI /RLC/ Vessco/SBI I Settlement Agreement Page 108 of 201 C. The Parties now desire to settle the Released Claims as that term is more fully defined below. Part of the consideration for this settlement involves the design and construction of a project for the City to replace the existing screw presses with new centrifuges (the "Repair Project"). The Repair Project involves the following Parties agreeing to perform the following work: • Design -Build Contract. BMI will design and furnish the scope of the Repair Project under an agreement between BMI and the City, which is attached as Exhibit A. The scope of the repair work includes replacing the existing screw presses with new centrifuges. As part of its scope of work, BMI has agreed to manage and pay for the disposal of waste at the City's plant during the time the screw presses are removed and replaced with the new centrifuges ("Waste Removal and Disposal Work"). • General Construction. Except for the Waste Removal and Disposal Work and the supply of the centrifuges, BMI will subcontract all repair work included in the Repair Project to RLC. This subcontract, which is attached as Exhibit B-I, will require BMI to furnish to RLC the new centrifuges and will exclude the Waste Removal and Disposal Work from RLC's scope of work. RLC's scope of work will include the installation of the new centrifuges. • Centrifuge Supply. BMI will supply new wastewater treatment centrifuges to the plant site under a contract directly with the equipment manufacturer.. FOR GOOD AND VALUABLE CONSIDERATION, the Parties agree as follows: 1. BINDING EFFECT. The terms of this Agreement shall be binding upon and be enforceable against and shall inure to the benefit of the Parties jointly and severally and the heirs, successors, insurers, carriers, personal representatives, and assigns of each. The Parties acknowledge that this Agreement was the result of mediation sessions and follow up settlement negotiations conducted by John M. Harens (the "Mediator") and that they each received in writing the statutory mediation disclosures including the following: • the Mediator has no duty to protect their interests or provide them with information about their legal rights; • signing a mediated settlement agreement may adversely affect their legal rights; and City of Elk River / BMI /PLC/ Vessco/SBI 2 Settlement Agreement Page 109 of 201 • they should consult an attorney before signing a mediated settlement agreement if they are uncertain about their rights. In entering this Agreement, each Party represents that they have relied upon the advice of their attorney, who is the attorney of their own choice, concerning the legal consequences of the Agreement; that the terms of the Agreement have been completely read and explained to each Party by their attorney; and that the terms of this Agreement are fully understood and voluntarily accepted. 2. RELEASE OF CLAIMS. A. Release of Claims Regarding the Original Project. In consideration of the sums described in the exhibits identified in Paragraph 3 below, the sufficiency of which is hereby acknowledged, the Parties hereby unconditionally and mutually release and forever discharge each other, and their insurers, successors, parents, affiliates, agents, sureties, subsidiaries, dealers and distributors, and the officers, directors and assigns of each including any estates, heirs, or devisees, from any and all claims, past, present and future, known or unknown, regarding the design and construction of the Original Project ("the Released Claims"), including but not limited to all claims that were or could have been made in the Action. The Released Claims shall include all damages, whether known or unknown, foreseen or unforeseen, arising out of Released Claims. The Parties agree the following claims are also included in the Released Claims: (i) any and all claims for defense, damages, requests to be reimbursed for attorneys' fees and defense costs, hold harmless, indemnity or contribution by any Party to the Action against any other party to the Action are released to the extent the defense, damages, request to be reimbursed for attorneys' fees, defense costs, hold harmless obligation, indemnity or contribution obligation arises out of, or is in any way related to, the "Released Claims." (ii) any and all claims by any Party against any other Party based on the allegation of failure to procure proper insurance coverage for the benefit of the Party making such claim or for the benefit of another Party to the extent the insurance at issue is claimed to provide a defense or indemnity for one or more of the "Released Claims." (iii) any and all claims by any Party against the insurance carrier or carriers of another Party for defense, damages, request to be reimbursed for attorneys' fees and defense costs, hold harmless, or indemnity, including but not limited to claims based on additional insured status, actual or alleged, to the extent that the insurance at issue is claimed to provide a defense, damages, request to be City of Elk River / BMI /PLC/ Vessco/SBI 3 Settlement Agreement Page 110 of 201 reimbursed for attorneys' fees and defense costs, hold harmless, or indemnity for one or more of the "Released Claims." Notwithstanding the generality of the foregoing Release of Claims, the Released Claims do not include obligations of any carrier under a tender of defense that such carrier has accepted, including but not limited to that carrier's obligations to pay defense costs through the date of the closing of this settlement. B. Claims Not Released. Notwithstanding the generality of the foregoing Release of Claims, that Release shall not extend to any obligations any of the Parties have under the contracts executed in connection with the Repair Project. C. Actions Involving Third Persons. The Parties agree that if any of them brings an action or claim against any third person, including without limitation, a contribution, indemnity, or subrogation action, arising out of the same claims released by this Agreement, the Party bringing such an action shall indemnify, defend, and hold harmless the other Parties from any claims asserted by such third person. 3. CONSIDERATION. A. Consideration by the Parties. Each of the Parties agrees to accept or pay the consideration described in its respective exhibit described below in exchange for the release of all claims between each other, and for such other terms and conditions of this Agreement. Each of said exhibits will be separately executed by each respective Party. All exhibits shall be held by the Mediator in accordance with the terms of paragraph 3.B below. • Exhibit A — Design / Build Agreement between the City and BMI (executed by BMI and the City) • Exhibit A-1 - Consideration for the City (executed solely by the City) • Exhibit A-2 — Consideration for BMI (executed solely by BMI) • Exhibit B - Consideration for RLC (executed solely by RLC) • Exhibit B-1 — Construction Contract between BMI and RLC (executed by BMI and RLC) • Exhibit C — Consideration for Vessco (executed solely by Vessco) City of Elk River / BMI /RLC/ Vessco/SBI 4 Settlement Agreement Page 111 of 201 • Exhibit D — Consideration for SBI (executed solely by SBI) B. Confidentiality of Consideration. All Parties acknowledge the sufficiency of the consideration for this Agreement, but further agree that such consideration shall be kept confidential in accordance with the following terms: (1) each of the exhibits shall be held in escrow by the Mediator and shall not be disclosed to any non -signatory unless and until the Mediator determines, in his sole discretion, that it is necessary to disclose the contents of one or more of said exhibits in order to effectuate and enforce the terms of this Agreement; (2) this agreement regarding confidentiality shall not abridge any disclosure requirement the City might have regarding information the City has, e.g., the consideration paid by the City. C. Timeliness of Consideration. Within 30 days of the date of the last signature to this Agreement, each Party shall send the following to John M. Harens of Harens Mediation Center, LLC (Tax ID. No. 46-0795573): (i) any required settlement contribution; (ii) its executed confidential exhibit; and (iii) its executed signature page to this Agreement. D. Escrow and Disbursement of Cash Contributions. (1) Escrow of Cash Contributions. All cash contributions of the Parties shall be deposited into the Harens Mediation Center Trust Account. The total cash contributions by the Parties shall be equal to the sum of the following: (i) the sum due BMI under the Design Build Agreement (including the Waste Removal and Disposal Work, the equipment supply contract, and the sum due RLC for its work on the Repair Project); and (ii) the $7,500.00 for fees due HMC for managing the payments described below. (2) Disbursements for the Repair Work. HMC shall make disbursements out of its trust account for payments agreed upon as due between the parties to the following contracts (i) the design build contract between BMI and the City (which will include payments due to centrifuge supplier); and (ii) the subcontract for construction between BMI and RLC. HMC will reduce any such payments by any agreed upon retention. HMC shall have no liability for determining if agreed -upon payments are due under the relevant contracts or if the status of construction warrants the requested or agreed -upon payment. HMC shall have none of the obligations of a title company or other construction payment disbursing agent, including but not limited to obtaining bond release, lien waivers, etc. HMC shall have no obligation to make a disbursement unless and until the parties to the relevant agreement have agreed in writing that such a payment may be made. HMC may pay itself out of the $7,500 referred to above for services rendered in connection with managing the escrow and disbursement of the settlement funds. City of Elk River / BMI /PLC/ Vessco/SBI 5 Settlement Agreement Page 112 of 201 4. NO ADMISSION OF LIABILITY. The Parties recognize and agree that this settlement is the compromise of disputed claims and that the consideration accepted and paid hereunder is not intended nor shall it be construed by anyone to be an admission of liability by or on behalf of any of the Parties, by whom all such liability is expressly denied, said Parties intending by this settlement merely to avoid litigation and buy their peace. 5. CONFIDENTIALITY. The Parties agree that all matters recited herein, and in settlement discussions between the Parties, whether or not through counsel, have been and shall be kept absolutely confidential, including but not limited to the amount of settlement proceeds paid herein. They will not disclose any information concerning the matters recited herein and in settlement discussions to any person other than their spouse, attorneys, insurance carriers, accountants, tax and financial advisors, taxing authorities, and/or a court of competent jurisdiction or requested to do so by a regulator. The Parties may only disclose confidential information if ordered to do so by a court of competent jurisdiction, provided however, nothing contained herein shall prevent (i) disclosures based on the prior written consent from the other parties to this Agreement; (ii) disclosures required by law and (iii) disclosures made by representatives of the City in their official capacity as required by law. 6. REMARKS. The Parties agree to not make any disparaging remarks about any other Party to this Agreement. 7. DISMISSAL OF SUIT. Upon payment of all consideration herein, the Parties hereby authorize and direct their attorneys of record to dismiss with prejudice any and all claims, counterclaims or cross claims, among and between each other; it being understood and agreed that said dismissals shall be without costs or disbursements. 8. ENTIRE AGREEMENT. The Parties further understand and agree that this document contains the entire agreement between the Parties with respect to the settlement of the Released Claims, and that the terms of this Agreement are contractual and not a mere recital. This Agreement includes City of Elk River / BMI /PLC/ Vessco/SBI 6 Settlement Agreement Page 113 of 201 five signature pages and includes seven separate exhibits (Exhibits "A, A-1, A-2, B, B-1, C, and D") in the possession of the Mediator. 9. REVIEW OF AGREEMENT. Each Party represents and certifies that they (1) have received a copy of this Agreement for review and study before being asked to sign it; (2) have read this Agreement carefully; (3) have been given a fair opportunity to discuss and negotiate the terms of this Agreement; (4) understand its provisions; (5) have been advised and have consulted with their attorney; (6) have determined that it is in its best interest to enter into this Agreement; (7) have not been influenced to sign this Agreement by any statement or representation not contained in this Agreement or that it is subject to as a condition precedent; and (8) enter into this Agreement knowingly and voluntarily. 10. BREACH OF AGREEMENT. If either Parry is compelled to bring an action to enforce the terms of this Agreement, the prevailing Parry shall be entitled to their reasonable attorney's fees and costs. 11. AUTHORITY TO BIND. The corporate officers executing this Agreement hereby represent, warrant and confirm that they have the authority to bind the parry for which he/she is signing, and understands that execution of this Agreement is binding on the party. 12. JOINTLY DRAFTED AGREEMENT. This Agreement shall be deemed to have been jointly drafted by each of the Parties. Accordingly, the Parties hereby agree that any and all rules of construction to the effect that ambiguity is construed against the drafting parry shall be inapplicable in any dispute concerning the terms, meaning, or interpretation of this Agreement. 13. EXECUTION OF AGREEMENT. This Agreement may be executed by the Parties in any number of counterparts so that the collection of all counterparts or partial executions shall constitute a fully executed and enforceable agreement. A facsimile copy, electronic (e.g., PDF), or e-mailed signatures of any execution of a counterpart shall have the same force and effect as if the same were an original. Each signatory hereto represents and warrants that they have the full, sufficient, and continuing power, authorization and right to bind the Parry to the terms of this Agreement on whose behalf their signature is affixed. City of Elk River / BMI /PLC/ Vessco/SBI 7 Settlement Agreement Page 114 of 201 Date: Date: Date: Date: Date: Date: City of Elk River / BMI /RLC/ Vessco/SBI Settlement Agreement City of Elk River, Minnesota By Its Mayor City of Elk River, Minnesota By Its Clerk Bolton & Menk, Inc. By Its Rice Lake Contracting Corp. By Its Vessco, Inc. By Its Schwing Bioset Incorporated By Its Page 115 of 201 Scope of Work Agreement Between the City of Elk River and Bolton & Menk. Inc. Per Mediated Settlement Agreement in Sherburne County District Court Case No. 71-CV-22-3991i 1.1 GENERAL A. The Work or Repair Project (are interchangeably used and defined below) required by this Scope of Work is part of the Mediated Settlement Agreement in the litigation in Sherburne County District Court, Case File No. 71-CV-22-399. B. The "Work" and "Repair Project" are, collectively, the providing, furnishing, performing and transporting all labor, plants, tools, equipment, materials, supplies, systems, manufactured articles, services, fuel, power, water, essential communications and operations required to replace the Existing Screw Presses with the New Centrifuge System for the City of Elk River's Wastewater Treatment Facility (the "Facility") including all items described in this Scope of Work, with the express requirement that the Facility have a through put capacity of no less than 1190 dry lb per hour per system unit, and with both units operating they will produce 2380 dry pounds per hour. C. The "Existing Screw Presses" are Ishigaki USA Ltd. Model ISGK-A-0906. D. The "Existing Reaction Mix Tanks" are Ishigaki USA Ltd. 300 gallon. E. The "New Centrifuge System" is comprised of Two (2) Alfa Laval USA, Inc. Model ALDECG3-75 units. F. Bolton & Menk ("Design -Builder") shall deliver the completed Work on a turn -key basis and at no cost or expense to the City of Elk River ("Owner"). Owner agrees that Design -Builder may furnish all, or any portion, of the Work pursuant to a separate written contract between Design -Builder and Rice Lake Contracting Corporation ("Contractor"); provided, however, that such separate contract must: 1. comply with the insurance requirements set forth in this Scope of Work; 2. include commercially reasonable and customary indemnification, defense and hold harmless provisions that include Owner as an indemnified party therein; 3. include commercially reasonable and customary contractor and supplier warranties and state that all such warranties are for the benefit of, and may be enforced by, Owner; Page 116 of 201 4. include provisions by which Contractor acknowledges that Design - Builder is not Owner's agent, and that Contractor is not entitled to receive any compensation from Owner for the Work; S. state that change orders, construction change directives, and similar contract modifications that would result in a cost to Owner or a reduction in quality or scope of the Work are not permitted, unless approved in writing by Owner; 6. permit Owner, and those identified by Owner, to attend all inspections of the Work; and 7. state that payment for all Work performed by Contractor shall be made pursuant to a confidential exhibit with Contractor and Design - Builder, in the Mediated Settlement Agreement from funds held in the John Harens Trust Account. 1.2 PROJECT LOCATION A. The Repair Project is located in the City of Elk River, Minnesota, which is located in Sherburne County. 1.3 PROJECT DESCRIPTION A. The Work includes the complete permitting, construction, and start-up necessary for the Repair Project, as including, without limitation: 1. remove the Existing Screw Presses and disconnect all piping, plumbing and electrical associated therewith; 2. demolish existing concrete supports for the Existing Screw Press to allow for install of the New Centrifuge System, and repair floor areas that are damaged during demolition; 3. remove and dispose of the Existing Screw Presses by a manner, and to a location, identified by Design -Builder; 4. remove and dispose of the Existing Reaction Mix Tanks and all related piping, chemical feed piping, electrical and concrete platforms; S. remove and dispose of all walkways and platforms around Existing Screw Presses; 6. disassemble the conveyor servicing the Existing Screw Presses, and reassemble the conveyor to and for use by the New Centrifuge System if compatible. If existing conveyor is not compatible with the New Centrifuge System, new conveyor to be supplied and installed; 2 Page 117 of 201 7. disconnect and remove existing polymer feed system, confirm polymer feed system sizing and install new chemical feed tubing and/or system necessary accommodate the New Centrifuge System; 8. install the New Centrifuge System and connect feed piping, drain piping, plumbing, chemical feed, diverter gate (or similar system) and electrical thereto; 9. install new concrete supports for the New Centrifuge System as required; 10. provide start-up services and support for the New Centrifuge System and associated equipment and controls; II.revise sludge feed piping from existing sludge transfer pumps as necessary to feed New Centrifuge System; 12. install new electrical and control systems for the New Centrifuge System that are of a quality and performance level at or above the existing Screw Press System; 13. provide all necessary controls integration; 14. provide temporary biosolids dewatering during the Work whereby the dewatered biosolids are deposited in the existing dumpsters; 15.install any and all additional project components, as necessary, to form a fully complete and operational system; 16. deliver operations and maintenance manuals to Owner; 17. require copies of all notices to be simultaneously delivered to Owner; 18. deliver all warranties (include those from Contractor and those provided by manufacturers) to Owner; 19. provide all necessary training and commissioning services; 20. conduct all necessary contract and project oversight and inspections; and 21. provide all necessary regulatory coordination and approvals for the Work. 1.4 ORDER OF THE WORK A. The Work shall be performed pursuant to an Owner -approved schedule, which approval Owner shall not unreasonably withhold. All Work must be completed within sixty (60) days after the commencement date identified in the Owner -approved schedule. 3 Page 118 of 201 1.5 SEQUENCE OF CONSTRUCTION A. The Work shall be carried on at such places on the Repair Project and in such order or precedence as may be found necessary by Design -Builder to expedite the completion of the Repair Project. All Work shall be performed so as to minimize any impact on existing treatment processes, and at no time shall any Work interfere with any portion of the treatment process, except as necessary to complete the Repair Project in a timely manner. 1.6 USE OF PROJECT SITE A. Use of the Facility shall be limited to construction operations, including on -site storage of materials, on -site fabrication facilities, and field offices. 1.7 OWNER USE OF THE PROJECT SITE A. Owner may utilize all or part of the Work site and facilities at all times when Work is being performed. Owner, however, shall take all reasonable steps to minimize any impact on or interference with the Work. 1.8 APPLICATIONS FOR PAYMENTS A. By the 15th day of each month, Design -Builder shall submit to the Owner, a progress payment application based on the percentage of Work Design -Builder completed during the previous month. The amount requested under each progress payment application shall be calculated by determining the percentage of the Work completed as of the date of the progress payment application. B. Each Design -Builder progress payment application shall be accompanied by supporting documentation. C. Design -Builder's progress payment applications shall include a Design - Builder's affidavit listing all subcontractors, suppliers, and vendors having contracts with Design -Builder to provide said labor, equipment, material, and services on the Project. D. Design -Builder's final payment application shall include lien waivers executed by each subcontractor, supplier, and vendor listed on the Design -Builder's affidavit for all labor, materials, and equipment supplied through the date of the pay application. E Page 119 of 201 1.9 REVIEW OF APPLICATIONS A. Within five (5) business days after receipt of each draft progress payment application submitted by Design -Builder, Owner will return the draft progress payment application with corrections (if any). Design -Builder will submit a final progress payment application, incorporating all resolved corrections, together with all supporting documentation, within three (3) business days thereafter, to Owner. Once approved by Owner, Design -Builder will forward the payment application to the Mediator for payment under the terms of the Mediated Settlement Agreement. B. Owner shall review Design -Builder's revised payment application within three (3) business days of receipt and, once approved by Owner, Design -Builder will forward the payment application to the Mediator for payment under the terms of the Mediated Settlement Agreement. C. Owner may withhold amounts requested in one or more payment applications from Design -Builder in whole or part, if: 1. the Work is defective; 2. the Price of the Work has been reduced by change orders; 3. Design -Builder has been required to correct defective Work or complete Work; 4. liens have been filed in connection with the Work, except where Design -Builder has delivered a specific bond satisfactory to secure the satisfaction and discharge of such liens; or S. Design -Builder has defaulted under the terms of the Settlement Agreement, Scope of Work, or any obligation referenced therein. 1.10 PAYMENT A. Design -Builder shall receive any uncontested amounts due to Design - Builder under a payment application for Work within ten (10) calendar days after the payment application has been accepted under the terms set forth herein and under the terms of the Mediated Settlement Agreement. k, Page 120 of 201 1.11 FINAL PAYMENT A. Upon final completion of obligations for the Work, submission and acceptance of all close-out documents required under this Agreement by the parties as required under the Mediated Settlement Agreement, such agreement not to be unreasonably withheld, the Design -Builder shall receive final payment. 1.12 WARRANTY OF TITLE A. Design -Builder warrants and guarantees that title to all Work, materials, and equipment furnished under the Subcontract will pass to Owner free and clear of all liens and other title defects, and free of all patent, licensing, copyright, or royalty obligations. In addition, if, within one year after the date of final completion of the Work, or by terms of any applicable special warranty, any of the Work is found to be not in accordance with the requirements of this Scope of Work, Design -Builder shall correct it promptly after receipt of notice from Owner to do so. 1.13 ADDITIONAL TERMS AND CONDITIONS A. Design -Builder shall, and shall cause all parties performing on -site Work to, comply with Owner's insurance requirements while performing the Work, as set forth in Attachment A - Insurance Requirements. B. To the fullest extent permitted by laws and regulations, Design -Builder shall, and shall cause all parties performing on -site Work to, indemnify and hold harmless Owner and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of Owner from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to the furnishing of the Work, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, but only to the extent caused by any failure to perform or deliver the Work as required by this Scope of Work, or the negligent act or omission of Design -Builder, a party performing on -site Work or any lower tier subcontractor, supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work or anyone for whose acts any of them may be liable. 0 Page 121 of 201 Date: Date: Date: City of Elk River, Minnesota Its Mayor City of Elk River, Minnesota :A Its Clerk Bolton & Menk, Inc. :A Its 7 Page 122 of 201 Attachment A - Insurance Requirements Insurance Requirements. Design -Builder, at its expense, shall procure and maintain in force for the duration of this Agreement the following minimum insurance coverages: A. General Liabilitv. Design -Builder agrees to maintain commercial general liability insurance in a minimum amount of $1,000,000 per occurrence; $2,000,000 annual aggregate. The policy shall cover liability arising from premises, operations, products completed operations, personal injury, advertising injury, and contractually assumed liability. The City shall be endorsed as additional insured. B. Automobile Liabilitv. If Design -Builder operates a motor vehicle in performing the Services under this Agreement, Design -Builder shall maintain commercial automobile liability insurance, including owned, hired, and non -owned automobiles, with a minimum liability limit of $1,000,000 combined single limit. C. Workers' Compensation. Design -Builder agrees to provide workers' compensation insurance for all its employees in accordance with the statutory requirements of the State of Minnesota. Design -Builder shall also carry employers liability coverage with minimum limits are as follows: • $500,000 -Bodily Injury by Disease per employee • $500,000 -Bodily Injury by Disease aggregate • $500,000 -Bodily Injury by Accident Design -Builder shall, prior to commencing the Services, deliver to the City a Certificate of Insurance as evidence that the above coverages are in full force and effect. The insurance requirements may be met through any combination of primary and umbrella/excess insurance. Design -Builder's policies shall be the primary insurance to any other valid and collectible insurance available to the City with respect to any claim arising out of Design -Builder's performance under this Agreement. Design -Builder's policies and Certificate of Insurance shall contain a provision that coverage afforded under the policies shall not be cancelled without at least thirty (30) days advanced written notice to the City. Page 123 of 201 D. Professional (Errors and Omissions) LiabiliMInsurance. [Only required for professional services provided by accountants, attorneys, engineers, etc.] Design -Builder will maintain professional liability insurance for all claims the Design -Builder may become legally obligated to pay resulting from any actual or alleged negligent act, error, or omission related to Design - Builder's professional services required under this Agreement. Design - Builder is required to carry the following minimum limits: $1,000,000 per occurrence; $2,000,000 annual aggregate. The retroactive or prior acts date of such coverage shall not be after the effective date of this Agreement, and Design -Builder shall maintain such insurance for a period of at least three (3) years following completion of the Services. If such insurance is discontinued, extended reporting period coverage must be obtained by the Design -Builder to fulfill this requirement. 9 Page 124 of 201 Exhibit A -I to City of Elk River v. Bolton & Menk, Inc., et al. Settlement Agreement Consideration for the City The City agrees to pay into the Harens Mediation Center trust account the sum of $335,000, and agrees to accept the work provided for in the design -build agreement attached hereto as Exhibit A. Date: Date: City of Elk River, Minnesota :1 Its Mayor City of Elk River, Minnesota Its Clerk Page 125 of 201