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HomeMy WebLinkAboutItem 06.dNovember 7, 2016 Item No. JOINT POWERS AGREEMENT BETWEEN DAKOTA COUNTY AND THE CITY OF LAKEVILLE FOR COST CONTRIBUTION FOR CONSTRUCTION OF THE NORTH CREEK GREENWAY EAST LAKE PARK - EAGLEVIEW PEDESTRIAN UNDERPASS TRAIL Proposed Action Staff is recommending adoption of the following motion: Move to approve joint Powers Agreement between Dakota County and the City of Lakeville for cost contribution for the construction of the North Creek Greenway East Lake Park - Eagleview Pedestrian Underpass Trail. Overview A goal of the greenway collaborative is to preserve greenway corridors in coordination with land development. The City has been working with Dakota County and Tradition Development to incorporate the North Creek Regional Greenway into future development. The County and City are entering into this agreement so that the County and the Cit} may share the actual cost to construct the pedestrian underpass of Eagleview Drive (which has been constructed) and approximately 4,600 feet of bituminous trail located between East Community Park and CSAR 46 that will provide public benefits and improve pedestrian and vehicle safety in the area. The City's share of the costs, which includes park dedication credits, trail construction and construction management, is estimated to be $312,000. The County's share of the cost will be the full cost of the Eagleview Drive pedestrian underpass which is estimated to be $288,000. Primary Issues to Consider • Provides greenway continuity in high use area between CSAH 46 and East Community Park. • Establishes 1 mile of North Creek Regional Greenway through the Spirit of Brandjten Farm PUD. • Avoids at -grade crossing at Eagleview Drive. Supporting Information • joint Powers Agreement between Dakota County and the City of Lakeville Financial Impact: $ 312,000 Budgeted: YN N❑ Source: Park Dedication Fund/Credits Related Documents: (CIP, ERP, etc.): Envision Lakeville Community Values: Good Value for Public Services Report Completed by: John Hennen, Parks & Recreation Director Dakota County Contract #C0027677 JOINT POWERS AGREEMENT BETWEEN DAKOTA COUNTY AND THE CITY OF LAKEVILLE FOR COST CONTRIBUTION FOR CONSTRUCTION OF THE NORTH CREEK GREENWAY EAST LAKE PARK — EAGLEVIEW PEDESTRIAN UNDERPASS TRAIL WHEREAS, Minn. Stat. § 471.59 authorizes local governmental units to jointly or cooperatively exercise any power common to the contracting parties; and WHEREAS, Dakota County (County) is a political subdivision of the State of Minnesota; and WHEREAS, the City of Lakeville (City) is a Minnesota municipal corporation (collectively herein the County and the City are referred to as the "Parties"); and WHEREAS, the County and the City are desirous of entering into this Agreement so that the County and the City may share the actual cost to construct a pedestrian underpass of Eagleview Drive and approximately 4600 feet of bituminous trail for the North Creek Regional Greenway in the City of Lakeville located between East Lake Park and CSAH 46 that will provide public benefits and improve pedestrian and vehicular safety ("Project") as further described in the concept map, attached hereto as Exhibit A and incorporated by reference. WHEREAS, in Resolution 15-197 the County approved a Two Hundred Eighty Eight Thousand and 00/100 ($288,000) cost reimbursement, plus a ten percent (10%) contingency, for actual construction costs incurred related to the construction of the pedestrian underpass related to the Project from the County to the City as part of a City's grant application for federal funding; and WHEREAS, the County has approved the design plans and specifications for the Project (the Project Plans). The Project Plans are on file with the City and County; and WHEREAS, the City created an actual construction cost estimate of Seven Hundred Eighty Thousand and 00/100 dollars ($780,000) for the construction of this Project, a copy of which is marked as Exhibit B and incorporated by reference. NOW, THEREFORE, in consideration of the mutual promises and benefits that the County and the City shall derive from this Joint Powers Agreement ("Agreement"), the Parties hereby enter into this Agreement for the purposes stated herein. ARTICLE 1 Purpose The purpose of this Agreement is to provide cooperation and funding by the County to the City for actual construction costs of the Project and to define the responsibilities and obligations of the County and the City for actual construction cost contribution. All funds provided by the County are to be used by the City solely for this purpose. Funds obtained by the City pursuant to this Agreement shall only be used for the payment of actual construction costs in accordance with this Agreement. Dakota County Contract 4CO027677 Page 1 of 10 JPA for Eagleview Pedestrian Underpass NCGVV ARTICLE 2 Parties The Parties to this Agreement are the City and County. County is acting by and through its Physical Development Division. City is acting by and through its Parks Department. ARTICLE 3 Term This Agreement shall be effective on the date of the signatures (Effective Date) of the parties to this Agreement and shall remain in effect until September 1, 2017 or until completion by the Parties of their respective obligations under this Agreement, whichever occurs first, unless amended in writing or earlier terminated by law or according to the provisions of this Agreement. ARTICLE 4 Cooperation The Parties agree to cooperate and use their reasonable efforts to ensure prompt implementation of the various provisions of this Agreement and to, in good faith, undertake resolution of any disputes in an equitable and timely manner. ARTICLE 5 County's Payment Obligation 5.1. Contribution Amount. The County shall reimburse the City up to $288,000 of the actual cost for the construction for the project plus a 10% contingency in an amount not to exceed Three Hundred Sixteen Thousand Eight Hundred dollars ($316,800) (Agreement Maximum) for construction of the pedestrian underpass related to the Project during the period from the Effective Date through until September 1, 2017 or until completion by the Parties of their respective obligations under this Agreement unless amended in writing or earlier terminated by law or according to the provisions of this Agreement, whichever is later. 5.2. Reimbursement by County. After this Agreement has been executed by both parties, the City may claim reimbursement from the County for actual construction costs incurred in connection with the Project that are eligible for reimbursement in accordance with this Agreement. A. The County will reimburse the City within forty-five (45) calendar days of the City's submission of invoices for actual construction costs to the County. Invoices must be submitted in the form acceptable to the County. All requests for reimbursement must be submitted within forty-five (45) calendar days after end of the Term set forth in Article 3. The City must certify that the requested reimbursements are accurate, appropriate and that such expenditures have not been otherwise reimbursed. If the invoice is incorrect, defective, or otherwise improper, the County will notify City within ten (10) calendar days of receiving the incorrect Dakota County Contract #C0027677 P a g e 2 of 10 JPA for Eagleview Pedestrian Underpass NCGW invoice. Upon receiving the corrected invoice from City, the County will make payment within forty-five (45) calendar days. B. Right to Refuse Payment. The County may refuse to pay any claim that is not specifically authorized by this Agreement. Payment of a claim shall not preclude the County from questioning the propriety of the claim. The County reserves the right to offset any overpayment or disallowance of claim by reducing future payments. C. Change Orders and Supplemental Agreements. Any change orders or supplemental agreements that affect the Project cost, scope or cost participation must be approved by the Authorized Representatives of both Parties prior to execution of work. Both Parties shall endeavor to provide timely approval of change orders and supplemental agreements so as not to delay construction operations. D. Payment upon Early Termination. In the event this Agreement is terminated before the expiration of the term set forth in Article 3, the County shall pay the City for the County share of actual construction costs of the pedestrian underpass related to the Project. In no case shall such payment exceed the total Contract Maximum_ ARTICLE 6 City's Obligations 6.1. Construction. City shall construct a trail for a portion of the Brandtjen Farm Development that includes the North Creek Greenway in the area around East Lake and near CSAH 46 and construct a underpass under the future Eagle View Drive, as more fully described in Exhibits A and B. The City will 'lead the construction, utilizing a contractor and shall be responsible for awarding contracts for the construction of said trail. As part of the foregoing obligations, the City's obligations under this Agreement include: A. Provide park dedication for land associated with underpass and trail connections, including 1.4 acres for underpass area and acquire land feasible for construction and maintenance of future greenway corridor trail to CSAH 46 not to exceed 2 acres in size; and B. Construct approximately 600 feet of 10' trail associated as part of the pedestrian underpass; and C. Construct approximately 4,000 feet of 10' trail connecting to CSAH 46 underpass and East Lake Bridge along north & west side of lake as prescribed in the PUD agreement with Tradition Development; and D. Manages underpass construction observation through development agreement with Traditions Development; and E. Maintain underpass and trail until such time as it is designated as a Regional Trail by Dakota County; and Dakota County Contract #C0027677 P a g e 13 of 10 JPA for Eagleview Pedestrian Underpass NCGW F. Work with, cooperate, require, and ensure that Traditions Development provides the following: (a) Up to $30,000 in design, engineering, or construction services; and (b) Incorporate this Project into a larger public infrastructure project, as may be determined in the future; and (c) That any contract between Traditions Development and any contractors for work on the Project shall include the same provisions as set forth. 6.2. Acknowledgement. The City shall appropriately acknowledge the funding assistance provided by the County pursuant to this Agreement in any promotional materials, signage, reports, publications, notices and presentations concerning the Project. The County shall appropriately ac!mowledge the assistance provided by the City pursuant to this Agreement in any promotional materials, signage, reports, publications, notices and presentations concerning the Project. 6.3. Compliance with Laws/Standard. The City shall abide by all federal, state, or local laws, statutes, ordinances, rules and regulations related to the construction of the work anticipated by this Project. The City or contractor, if any, is responsible for obtaining and complying with all federal, state, or local permits, licenses, and authorizations necessary for performing the work. A. Assignment. Neither the City nor the County may neither assign nor transfer any rights, duties, interests, or obligations under this Agreement without the prior consent of the County and a fully executed assignment agreement, executed by the County and the City. B. Use of Contractors. The City or Traditions Development, collectively or individually, may engage contractors to perform activities funded pursuant to this Agreement. However, the City retains primary responsibility to the County for performance of the activities and the use of such contractors does not relieve the City from any of its obligations under this Agreement. If the City or Traditions Development, collectively or individually, engages any contractors to perform any part of the Project, the City agrees that the contract for such services, labor, and materials shall include the following provisions: (a) The contractor must maintain all records and provide all reporting as required by this Agreement; (b) The contractor must defend, indemnify, and save harmless the County from all claims, suits, demands, damages, judgments, costs, interest, and expenses arising out of or by reason of the performance of the contracted work, caused by any intentional or negligent act or omission of the contractor, including negligent acts or omissions of its employees, subcontractors, or anyone for whose acts any of them may be liable; Dakota County Contract #C0027677 Page 4 of 10 JPA for Eagleview Pedestrian Underpass NCGW (c) The contractor must provide and maintain insurance through the term of this Agreement in amounts and types of coverage as set forth in the Insurance Terms, which is attached an incorporated as Exhibit C, and provide to the County prior to commencement of the contracted work a certificate of insurance evidencing such insurance coverage; (d) The contractor must be an independent contractor for the purposes of completing the contracted work. (e) The contractor must acknowledge that the contract between the City and the contractor does not create any contractual relationship between County and the contractor, but that the County is a third -party beneficiary to the contract. (f) The contractor shall perform and complete the activities in full compliance with this Agreement and all applicable laws, statutes, rules, ordinances, and regulations issued by any federal, state, or local political subdivisions having jurisdiction over the activities. 6.4. City Responsibility for Project Delivery. The City will be responsible for management and inspection of the work of the Project assuring it is in accordance with State laws and meets approved construction standards. The County will have no actual or implied legal responsibility to the City relating to the above obligations and responsibilities of the Project. ARTICLE 7 Maintenance 7.1. Maintenance upon Project Completion. After written acceptance of the Project by the City and County, the City shall be solely responsible for maintenance of the trail, at its sole cost, in accordance with its maintenance policies for other public use trails maintained by fl -lee City, ,::.til such time as Dakota County designates in writing abet uhe trail is a Regional Trail through a separate Joint Powers Agreement. 7.2. Compliance with Laws and Standards. The City shall abide by all federal, state, or local laws, statutes, ordinances, rules and regulations which apply to the use, operation and maintenance of the Trail. 7.3. Recreational Use. The Trail shall provide a high-quality recreational experience to trail users. Dakota County Contract 4CO027677 P a g e 5 of 10 JPA for Eagleview Pedestrian Underpass NCGW ARTICLE 8 Indemnification and Insurance Each party to this Agreement shall be solely liable for the acts of its officers, employees or agents and the results thereof to the extent authorized by law and shall not be responsible for the acts of the other party, its officers, employees or agents. The provisions of the Municipal Tort Claims Act, Minn. Stat. Ch. 466 and other applicable laws govern liability of the County and the City. Each Party warrants that they are able to comply with the aforementioned indemnity requirements through an insurance or self-insurance program and that each has minimum coverage consistent with liability limits contained in Minn. Stat. Ch. 466. In the event of any claims or actions filed against either party, nothing in this Agreement shall be construed to allow a claimant to obtain separate judgments or separate liability caps from the individual Parties. In order to insure a unified defense against any third party liability claim arising from the work of the Project, City agrees to require all contractors or subcontractors hired to do any of the work contemplated by this Agreement to maintain commercial general liability insurance in amounts consistent with minimum limits of coverage established under Minn. Stat. § 466.04 during the term of such activity. All such insurance policies shall name City and County as additional insureds. City agrees to promptly provide County copies of any insurance policy related to this Agreement upon the County's request. ARTICLE 9 Reporting, Accounting and Auditing Requirements 9.1. Accounting Records. The City agrees to establish and maintain accurate and complete accounts, financial records and supporting documents relating to the receipt and expenditure of the funding provided in accordance with this Agreement. Such accounts and records shall be kept and maintained by the City for a minimum period of six (6) years following the expiration of this Agreement. City agrees to promptly provide the County copies of any accounting records related to this Agreement upon the County's request. 9.2. Auditing. The City shall maintain books, records, documents and other evidence pertaining to the costs or expenses associated with the work perfo��ned pursuant to this Agreement. Upon request the City shall allow the County, Legislative Auditor or the State Auditor to inspect, audit, copy or abstract all of the books, records, papers or other documents relevant to this Agreement. The City shall use generally accepted accounting principles in the maintenance of such books and records, and shall retain all of such books, records, documents and other evidence for a period of six (6) years from the date of the completion of the activities funded by this Agreement. 9.3. Data Practices. The City agrees with respect to any data that it possesses regarding the Agreement to comply with all of the provisions of the Minnesota Government Data Practices Act contained in Minnesota Statutes Chapter 13, as the same may be amended from time to time. Dakota County Contract #C0027677 P a g e 6 of 10 JPA for Eagleview Pedestrian Underpass NCGW 9.4. Authorized Representatives. The following named persons are designated as the Authorized Representatives of the parties for purposes of this Agreement. These persons have authority to bind the party they represent and to consent to modifications, except that the Authorized Representatives shall have only authority specifically granted by their respective governing boards. Notice required to be provided pursuant this Agreement shall be provided to the following named persons and addresses unless otherwise stated in this Agreement, or in a modification to this Agreement: TO THE COUNTY: Steven C. Mielke Director of Physical Development Division 14955 Galaxie Avenue Apple Valley, MN 55124 Steven Sullivan, or his successor, has the responsibility to monitor the City's performance pursuant to this Agreement and the authority to approve invoices submitted for reimbursement. TO THE CITY: Matt Little or successor, Mayor City of Lakeville 20195 Holyoke Ave Lakeville, MN 55044 In addition, notification to the County regarding termination of this Agreement by the other Party shall be provided to the Office of the Dakota County Attorney, Civil Division, 1560 Highway 55, Hastings, Minnesota 55033. 9.5. Liaisons. To assist the Parties in the day-to-day performance of this Agreement and to ensure compliance and provide ongoing consultation, a liaison shall be designated by the County and the City. The parties shall keep each other continually informed, in writing, of any change in the designated liaison. At the time of execution of this Agreement, the following persons are the designated liaisons: County Liaison: Steve Sullivan, Parks Director Telephone: (952) 891-7088 Email: steve.sullivalAco.dakota.mn.us City Liaison: John Hennen, Parks & Recreation Director Telephone: (952) 985-4601 Email: ihennenAlakevillemn.gov The Parries shall provide written notification to each other of any change to the designated liaison. Such written notification shall be effective to change the designated liaison under this Agreement, without necessitating an amendment of this Agreement. Dakota County Contract #00027677 P a g e 17 of 10 JPA for Eagleview Pedestrian Underpass NCGP: ARTICLE 10 Modifications 10.1. Any alterations, amendments, variations, modifications, or waivers of the provisions of this Agreement shall only be valid when they have been reduced to writing, approved by the parties respective Boards, and signed by the Authorized Representatives of the County and the City. 10.2. Waiver for any default or breach of this Agreement shall not be deemed to be a waiver of any subsequent default or breach. Waiver of default or breach of any provision of this Agreement shall not be construed to be modification for the terms of this Agreement unless stated to be such in writing and signed by Authorized Representatives of the Parties. Failure to enforce any provision of this Agreement does not waive the provision or condition or the Parties' right to enforce it. ARTICLE 11 Termination 11.1. In General. Either Parry may terminate this Agreement for cause by giving seven (7) calendar days written notice of its intent to terminate to the other Party. Such notice to terminate for cause shall specify the circumstances warranting termination of the Agreement. Cause shall mean a material breach of this Agreement and any supplemental agreements or amendments thereto. Notice of Termination shall be made by certified mail or personal delivery to the Authorized Representative of the other Party. Termination of this Agreement shall not discharge any liability, responsibility or right of any party, which arises from the performance of or failure to adequately perform the terMS of this Agreement prior to the Effective Date of termination. 11.2. Termination by Dakota County for Lack Of Funding. Notwithstanding any provision of this Agreement to the contrary, Dakota County may immediately terminate this Agreement if it does not obtain funding from the Minnesota Legislature, Minnesota Agencies, or other funding source, or if funding cannot be continued at a level sufficient to allow payments due under this Agreement or any contract or work orders of Invoices submitted. Written notice of termination sent by Dakota County to the City by facsimile is sufficient notice under this section. Dakota County is not obligated to pay for any services that are provided after written notice of termination for lack of funding. Dakota County will not be assessed any penalty of damages if the Agreement is terminated due to lack of funding ARTICLE 12 Minnesota Law to Govern This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of Minnesota, without giving effect to the principles of conflict of laws. All proceedings related to this Agreement or its breach shall be venued in Dakota County, Minnesota. Dakota County Contract #00027677 Page 8 of 10 JPA for Eagleview Pedestrian Underpass NCGW ARTICLE 13 Merger 13.1. Final Agreement. This Agreement is the final expression of the agreement of the parties and the complete and exclusive statement of the terms agreed upon and shall supersede all prior negotiations, understandings, or agreements. No other understanding regarding this Agreement, whether written or oral may be used to bind either party. 13.2. Exhibits A (including all Attachments or addenda) through and including C are attached hereto, and all terms, obligations and conditions in said Exhibits are incorporated herein and made a part of this Agreement. By signing this Agreement, the parties affirm and acknowledge receipt of all the above Exhibits (including all Attachments or Addenda). A. In the event of a conflict between the terms of this Agreement and Exhibit A or Exhibit B, the terms of this Agreement shall govern. In the event there is a conflict between the terms of Exhibit A and Exhibit B, the terms of Exhibit B shall govern. ARTICLE 14 Severabili% The provisions of this Agreement shall be deemed severable. If any part of this Agreement is rendered void, invalid, or unenforceable, such rendering shall not affect the validity and enforceability of the remainder of this Agreement unless the part or parts that are void, invalid or otherwise unenforceable shall substantially impair the value of the entire Agreement with respect to either Party. ARTICLE 15 Relationship of the Parties Nothing contained in this Agreement is intended or should be construed as creating or establishing the relationship of co-partners or joint ventures between the County and the City, nor shall the County be considered or deemed to be an agent, representative or employee of the City in the performance of this Agreement. Personnel of the City or other persons while engaging in the performance of this Agreement shall not be considered employees of the County and shall not be entitled to any compensation, rights or benefits of any kind whatsoever. ARTICLE 16 Contra Preferentem Disclaimer County and city agree that any ambiguity, inconsistency, or question of interpretation in this Agreement is not to be resolved strictly against the party that drafted the Agreement, but instead is to be resolved in accordance with the most reasonable construction. It is the intent of the Parties that any dispute over the meaning or application of the Agreement shall be construed fairly and reasonably, and neither more strongly for nor against either Party. Dakota County Contract #C0027677 Page 9 of ]0 JPA for Eagleview Pedestrian Underpass NCGw ARTICLE 17 Survivorship The following provisions under this Agreement shall survive after the termination date of this Agreement or expiration of this Agreement: Article 6.2 (Acknowledgement); Article 7 (Maintenance); Article 8 (Indemnification and Insurance); Article 9 (Reporting, Accounting and Auditing); Article 12 (Minnesota Law to Govern); Article 13 (Merger); Article 14 (Severability); Article 16 (Contra Preferentem Disclaimer); and Article 17 (Survivorship). IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date(s) indicated below. APPROVED AS TO FORM: DAKOTA COUNTY Joseph E. Trojack 10/14/16 Assistant County Attorney/Date KS -16-222 County Board Res. No. 15-477 By Steven C. Mielke Physical Development Division Director Date of Signature: CITY OF LAKEVILLE LIM Matt Little, Mayor Date of Signature: Charlene Friedges, City Clerk Date of Signature: Dakota County Contract #C0027677 Page 1 10 of 10 JPA for Eagleview Pedestrian Underpass NCGW II _} 44. LJK f Existing Pedestrian Tunnel r r Attachment A - Concept Map r Y 1 ` "< I '`` • Existing Pedestrian .i Tunnel Future City Collector 6 Road System, ` Aft F 1 3000' Regional Connection 1600' Regional Connection - ! , to C:SAH 46 Underpass to East Lake Park {10' wide} Proposed �l Tunnel I Future Trailhead ` I y ■" - L Trail Gateway/Plaza Area Dakota County Contract #C0027677 Exhibit B - Page 1 of 1 Attachment B — Greenway North Creek Greenway - Eagleview Drive — Pedestrian Underpass Collaboration The table describes the larger collaboration of a regional greenway connection from Cobblestone Lake/CSAH 46 Tunnel to East Lake Park Trailhead. The chart quantifies the existing values the City and developer are bringing to the North Creek Greenway as part of the existing PUD agreement. A JPA between the City and County would include a condition that the remaining trail links to the tunnel will be completed as development occurs. The value of Dakota County 's investment in the tunnel is created when the City and Tradition Development complete the regional corridor between Cobblestone Lake and East Lake Community Park. Collaboration (estimated): City of Lakeville Provides: $312,600 • $146,000 park dedication credit for land associated with tunnel and trail connections (3.4 acre @ $43,000 which includes 1.4 acres for tunnel area and 2 acres for future trail to CSAH 46) • $16,000 trail construction credit for 600 ft. of trail associated with tunnel • Future 10' trail connection to CSAH 46 tunnel and East Lake Bridge along north & west side of lake (4000 feet) as prescribed in the PUD agreement with Tradition Development ($120,000) • Manages tunnel construction observation through development agreement with Traditions ($30,000) • Maintain tunnel & trail until time it becomes regional Tradition Provides: Development • Design/Engineering/Construction Services (10%) or $30,000 value $180,000 • Incorporates project in larger public infrastructure project (rough estimate of $150,000 in project savings as compared to stand alone similar projects) Dakota County Provides: $288,000 a Provides $288,000 in Greenway Collaborative Founds • Assumes maintenance and ownership when trail becomes regional greenway Address the following design issues: 1. South of Tunnel Trail Connectivity: Create small plaza area on south side of tunnel that serves as a junction between the neighborhood trails and the regional trail. The area would include park and trail information kiosk, wayfinding signage, benches and landscaping. 2. Improve Tunnel User Experience: If feasible reduce length by adding head or wing walls, increase width to 14' and or provide natural light in the middle? 3. Corridor meets county design standards for regional trails Dakota County Contract #C0027677 EXHIBIT C Exhibit C - Page 1 of 2 INSURANCE TERMS Contractor agrees to provide and maintain at all times during the term of this Contract such insurance coverages as are indicated herein and to otherwise comply with the provisions that follow. Such policy(ies) of insurance shall apply to the extent of, but not as a limitation upon or in satisfaction of, the Contract indemnity provisions. The provisions of this section shall also apply to all Subcontractors, Sub -subcontractors, and Independent Contractors engaged by Contractor with respect to this Contract, and Contractor shall be entirely responsible for securing the compliance of all such persons or parties with these provisions. APPLICABLE SECTIONS ARE CHECKED ® 1. Workers Compensation. Workers' Compensation insurance in compliance with all applicable statutes including an All States or Universal Endorsement where applicable. Such policy shall include Employer's Liability coverage in an amount no leas than $500,000. If Contractor is not required by Statute to carry Workers' Compensation Insurance, Contractor agrees: (1) to provide County with evidence documenting the specific provision under Minn. Stat. § 176.041 which excludes Contractor from the requirement of obtaining Workers' Compensation Insurance; (2) to provide prior notice to County of any change in Contractor's exemption status under Minn. Stat. § 176.041; and (3) to hold harmless and indemnify County from and against any and all claims and losses brought by Contractor or any subcontractor or other person claiming through Contractor for Workers' Compensation or Employers' Liability benefits for damages arising out of any injury or illness resulting from performance of work under this Contract. If any such change requires Contractor to obtain Workers' Compensation Insurance, Contractor agrees to promptly provide County with evidence of such insurance coverage. ® 2. General Liability. "Cornmercial General Liability Insurance" coverage (Insurance Services Office form title), providing coverage on an "occurrence" rather than on a "claims made" basis, which policy shall include, but not be limited to, coverage for Bodily Injury, Property Damage, Personal Injury, Contractual Liability (applying to this Contract), Independent Contractors, "XC&U" and Products -Completed Operations liability (if applicable). Such coverage may be provided under an equivalent policy form (or forms), so long as such equivalent form (or forms) affords coverage which is at least as broad. An Insurance Services Office "Comprehensive General Liability" policy which includes a Broad Foran Endorsement GL 0404 (Insurance Services Office designation) shall be considered to be an acceptable equivalent policy form. Contractor agrees to maintain at all times during the period of this Contract a total combined general liability policy limit of at least $1,500,000 per occurrence and aggregate, applying to liability for Bodily Injury, Personal Injury, and Property Damage, which total limit may be satisfied by the limit afforded under its Commercial General Liability policy, or equivalent policy, or by such policy in combination with the limits afforded by an Umbrella or Excess Liability policy (or policies); provided, that the coverage afforded under any such Umbrella or Excess Liability policy is at least as broad as that afforded by the underlying Commercial General Liability policy (or equivalent underlying policy). Such Commercial General Liability policy and Umbrella or Excess Liability policy (or policies) may provide aggregate limits for some or all of the coverages afforded thereunder, so long as such aporegate. limits have not, as of the beginning of the tern or at any time during the tern, been reduced to less than the total required limits stated above, and further, that the Umbrella or Excess Liability policy provides coverage from the point that such aggregate limits in the underlying Commercial General Liability policy become reduced or exhausted. An Umbrella or Excess Liability policy which "drops down" to respond immediately over reduced underlying limits, or in place of exhausted underlying limits, but subject to a deductible or "retention" amount, shall be acceptable in this regard so long as such deductible or retention for each occurrence does not exceed the amount shown in the provision below. Contractor's liability insurance coverage may be subject to a deductible, "retention" or "participation" (or other similar provision) requiring the Contractor to remain responsible for a stated amount or percentage of each covered loss; provided, that such deductible, retention or participation amount shall not exceed $25,000 each occurrence. ® Such policy(ies) shall name Dakota County, its officers, employees and agents as .additional Insureds thereunder. ❑ 3. Professional Liability. Professional Liability (errors and omissions) insurance with respect to its professional activities to be performed under this Contract. This amount of insurance shall be at least $1,500,000 per occurrence and aggregate (if applicable). Coverage under such policy may be subject to a deductible, not to exceed $25,000 per occurrence. Contractor agrees to maintain such insurance for at least one (1) year from Contract termination. It is understood that such Professional Liability insurance may be provided on a claims -made basis, and, in such case, that changes in insurers or insurance policy forms could result in the impairment of the liability insurance protection intended for Dakota County hereunder. Contractor therefore agrees that it will not seek or voluntarily accept any such change in its Professional Liability insurance coverage if such impairment of Dakota County's protection could result; and further, that it will exercise its rights under any "Extended Reporting Period" ("tail coverage") or similar policy option if necessary or appropriate to avoid impairment of Dakota County's protection. Contractor further agrees that it will, throughout the one (1) year period of required coverage, immediately: (a) advise Dakota County of any intended or pending change of any Professional Liability insurers or policy forms, and provide Dakota County with all pertinent information that Dakota County may reasonably request to determine compliance with this section; and (b) Dakota County Contract #C0027677 immediate] advise Dakota County of an clavus or threats of claims that might reasonably be expected to reduce the amour hlblt S - PaAc e 2 0f2 . Y tY Y gh y p o suc ins ce r nu available for the protection of Dakota County. ® 4. Automobile Liability. Business Automobile Liability insurance covering liability for Bodily Injury and Property Damage arising out of the ownership, use, maintenance, or operation of all owned, non -owned and hired automobiles and other motor vehicles utilized by Contractor in connection with its performance under this Contract. Such policy shall provide total liability limits for combined Bodily Injury and/or Property Damage in the amount of at least $1,500,000 per accident, which total limits may be satisfied by the limits afforded under such policy, or by such policy in combination with the limits afforded by an Umbrella or Excess Liability policy(ies); provided, that the coverage afforded under any such Umbrella or Excess Liability policy(ies) shall be at least as broad with respect to such Business Automobile Liability insurance as that afforded by the underlying policy. Unless included within the scope of Contractor's Commercial General Liability policy, such Business Automobile Liability policy shall also include coverage for motor vehicle liability assumed under this contract. ® Such policy, and, if applicable, such Umbrella or Excess Liability policy(ies), shall include Dakota County, its officers, employees and agents as Additional Insureds thereunder. ® 5. Additional Insurance. Dakota County shall, at any time during the period of the Contract, have the right to require that Contractor secure any additional insurance, or additional feature to existing insurance, as Dakota County may reasonably require for the protection of their interests or those of the public. In such event Contractor shall proceed with due diligence to make every good faith effort to promptly comply with such additional requirement(s). ® 6. Evidence of insurance. Contractor shall promptly provide Dakota County with evidence that the insurance coverage required hereunder is in full force and effect prior to commencement of any work. At least 10 days prior to termination of any such coverage, Contractor shall provide Dakota County with evidence that such coverage will be renewed or replaced upon termination with insurance that complies with these provisions. Such evidence of insurance shall be in the form of the Dakota County Certificate of Insurance, or in such other form as Dakota County may reasonably request, and shall contain sufficient information to allow Dakota County to determine whether there is compliance with these provisions. At the request of Dakota County, Contractor shall, in addition to providing such evidence of insurance, promptly furnish Contract Manager with a complete (and if so required, insurer - certified) copy of each insurance policy intended to provide coverage required hereunder. All such policies shall be endorsed to require that the insurer provide at least 30 days' notice to Dakota County prior to the effective date of policy cancellation, nonrenewal, or material adverse change in coverage terns. On the Certificate of Insurance, Contractor's insurance agency shall certify that he"'she has Error and Omissions coverage. ® 7. Insurer: Policies. All policies of insurance required under this paragraph shall be issued by financially responsible insurers licensed to do business in the State of Minnesota, and all such insurers must be acceptable to Dakota County. Such acceptance by Dakota County shall not be unreasonably withheld or delayed. An insurer with a current A.M. Best Company rating of at least ANII shall be conclusively deemed to be acceptable. In all other instances, Dakota County shall have 15 business days from the date of receipt of Contractor's evidence of insurance to advise Contractor in writing of any insurer that is not acceptable to Dakota County. If Dakota County does not respond in writing within such 15 day period, Contractor's insurer(s) shall be deemed to be acceptable to Dakota County. ® 8. Noncommliance. In the event of the failure of Contractor to maintain such insurance and "or to furnish satisfactory evidence thereof as required herein, Dakota County shall have the right to purchase such insurance on behalf of Contractor, which agrees to provide all necessary and appropriate information therefor and to pay the cost thereof to Dakota County immediately upon presentation of invoice. ® 9. Loss Information. At the request of Dakota County, Contractor shall promptly furnish loss information concerning all liability claims brought against Contractor (or any other insured under Contractor's required policies), that may affect the amount of liability insurance available for the benefit and protection of Dakota County under this section. Such loss information shall include such specifics and be in such form as Dakota County may reasonably require. ® 10. Release and waiver. Contractor agrees to rely entirely upon its own property insurance for recovery with respect to any damage, loss or injury to the property interests of Contractor. Contractor hereby releases Dakota County, its officers, employees, agents, and others acting on their behalf, from all claims, and all liability or responsibility to Contractor, and to anyone claiming through or under Contractor, by way of subrogation or otherwise, for any loss of or damage to Contractor's business or property caused by fire or other peril or event, even if such fire or other peril or event was caused in whole or in part by the negligence or other act or omission of Dakota County or other party who is to be released by the terns hereof, or by anyone for whom such party may be responsible. Contractor agrees to effect such revision of any property insurance policy as may be necessary in order to permit the release and waiver of subrogation agreed to herein. Contractor shall, upon the request of Dakota County, promptly provide a Certificate of Insurance, or other form of evidence as may be reasonably requested by Dakota County, evidencing that the full waiver of subrogation privilege contemplated by this provision is present; and'or, if so requested by Dakota County, Contractor shall provide a full and complete copy of the pertinent property insurance policy(ies). K/CM.'Exh'hisure-No-Prof-Liability-CM.doc Revised: 10/07