ITEM 3.6 Norin Landing ParkOtS� D
MINNESOTA
DEPARTMENT INFORMATION
Request for
City Council Action
ORIGINATING DEPARTMENT
REQUESTOR:
MEETING DATE:
Parks & Recreation
Parks & Recreation Manager
Demant
August 28, 2017
PRESENTER(s)
REVIEWED BY:
ITEM #:
Consent
City Administrator/Finance Director
Flaherty
3.6
AGENDA ITEM DETAILS
RECOMMENDATION:
Staff is recommending to contract with Duluth Archaeology Center L.L.C. to provide a Phase 1 Field Survey
of Norin Landing Park in the amount of $3,252.34.
ARE YOU SEEKING APPROVAL OF A CONTRACT?
IS A PUBLIC HEARING REQUIRED?
Yes
No
BACKGROU ND/J USTI F1 CATION:
The City received notification in June 2017 that it had received the Department of Natural Resources
Outdoor Recreation Grant in the amount of $150,000 for the construction of Norin Landing Park. In July of
2017, the City was also notified from the Minnesota Historical Society that under36 CFR 800.4(b -c) that any
proposed projects receiving federal funding needed to undergo an evaluation of the property to identify
any historic properties and potential impacts from the proposed improvements.
The City contacted four companies that provide Phase 1 field surveys. Two of the four companies were
able to provide quotes for the requested work. City Staff is recommending going with the Duluth
Archaeology Center L.L.C. to perform the Phase One survey. If during the survey any historic properties are
discovered, recommendations will be provided on how to minimize the impacts of the historic properties
during the park improvements. The survey is estimated to be completed by December 2017.
SUPPORTING DOCUMENTS ATTACHED:
• Duluth Archaeology Center L.L.C. Phase 1 Field Survey Quote
• Duluth Archaeology Center L.L.C. Phase 1 Field Survey Contract
• Westwood Phase 1 Field Survey Quote
• Letter from the Minnesota Historic Society
POSSIBLE MOTION
PLEASE WORD MOTION AS YOU WOULD LIKE ITTO APPEAR IN THE MINUTES:
Motion to contract with Duluth Archaeology Center L.L.C. to provide a Phase 1 Field Survey of Norin
Landing Park in the amount of $3,252.34.
BUDGET INFORMATION
FUNDING: BUDGETED:
Fund #208 — Community Facilities No
SCOPE OF WORK: PHASE I FIELD SURVEY FOR NORIN PARK IMPROVEMENT,
OTSEGO, WRIGHT COUNTY, MINNESOTA
I. FIRM NAME Duluth Archaeology Center. L.L.C.
5910 Fremont St. Suite 1, Duluth MN 55807
Dr. Susan Mulholland (president) or Stephen Mulholland (field director)
tel 218/624-5489, fax 218/249-0765, email archcenter @ aol.com
II. PROJECT OBJECTIVES
The objective of this project is to conduct a Phase I field survey of the Norin Park Improvement
Project in Otsego, Wright County, Minnesota. The survey will cover the entire 3 acre area of the
park, including 350 feet of Mississippi River shore. Survey will include surface pedestrian
walkover and shovel testing as appropriate, with a report to SHPO standards (Anfinson 2011).
The survey will identify historic properties and probable impacts from the proposed
improvements on any historic properties. This scope, however, does not include Phase II
evaluation of any historic properties for eligibility to the National Register of Historic Places.
III. WORK PLAN
Contractor will complete the following tasks:
— Task 1: administration and prefield
Contractor will conduct accounting and record keeping;
license; conduct literature review.
— Task 2: field survey
obtain annual state archaeology
Contractor will conduct Phase I archaeological survey in project area for
historic properties, using pedestrian walkover and shovel testing as appropriate
— Task 3: laboratory analysis
unreported
Contractor will conduct analysis and accessioning of any recovered artifacts for
permanent curation at the appropriate repository.
— Task 4: reporting
Contractor will prepare a report on the results of the survey to SHPO/OSA standards
(Anfinson 2011), including site form(s) if needed.
Proiect Schedule
Contractor will start work after authorization from the client by receipt of a signed contract; field
survey will require 1 day. Laboratory and reporting will be scheduled in consultation with client.
Completion of the project will be by or before the end of December 2017.
Curation
Any artifacts recovered during the project will be curated at the Minnesota Historical Society
under repository agreement 762 as required by the state archaeology license.
IV. BUDGET
The budget is prepared on a separate sheet. It is a not to exceed quote; expenses will be charged
as incurred. Curation costs will be charged only if artifacts are found and curated.
V. PERSONNEL
- Dr. Susan Mulholland: PI and President of DAC
Registered Professional Archaeologist (RPA)
VI: APPROVED BY
Name: Susan C. Mulholland
Date: August 11, 2017
Title: President Duluth Archaeology Center
Anfinson, S.F. 2011 State Archaeologist's Manual for Archaeological Projects in Minnesota.
Office of the State Archaeologist, Fort Snelling History Center, St. Paul.
2
NORIN PARK PROJECT, OTSEGO, WRIGHT COUNTY, MINNESOTA
PRE-FIELD/ADMINISTRATIVE
Principal Investigator 2 hr. @ $65.17 $ 130.34
Account Manager 1 hr. @ $47.56 47.56
Supplies 25.00
TOTAL PRE -FIELD $ 202.90
FIELD WORK
Principal Investigator 12 hr. @ $65.17 $ 782.04
Field Technician 12 hr. @ $45.70 548.40
Mileage 450 miles @ $0.53 238.50
per diem 1 day @ $46 46.00
TOTAL FIELD WORK $1,614.94
REPORT PRODUCTION
Principal Investigator 10 hr. @ $65.17 $ 651.70
Laboratory Technician 4 hr. @ $45.70 182.80
Photocopies 100 @ $0.10 10.00
Report production 25.00
Postage/Delivery 15.00
TOTAL REPORT PRODUCTION $ 884.50
TOTAL PROJECT COSTS WITHOUT CURATION $2,702.34
MINNESOTA HISTORICAL SOCIETY CURATION
Site accession number 2 @ $75.00
Curation box 1 @ $285.00
Deposit fee 1 @ $115.00
TOTAL CURATION COSTS
TOTAL PROJECT COSTS WITH CURATION
9
$ 150.00
285.00
115.00
$ 550.00
$3,252.34
CITY OF OTSEGO SERVICES CONTRACT
AGREEMENT, made this 28th day of August, 2017, between the CITY OF OTSEGO, a
political subdivision ("CITY") and Duluth Archaeology Center L.L.C. ("CONTRACTOR");
RECITALS
CITY has awarded to CONTRACTOR the job described below,
Description of Project:
Preform a Phase 1 archaeological survey of Norin Landing Park for the City of Otsego in
the amount of $3,252.34.
1. Contract Performance. CONTRACTOR shall complete performance of the
PROJECT in accordance with the Duluth Archaeology Center L.L.C. e-mailed August 11,
2017.
2. Compliance with Applicable Regulations. CONTRACTOR shall, pursuant to
performance, comply with all applicable rules, regulations, statutes or ordinances of any
other unit or agency of government, including but not limited to those relating to non-
discrimination in hiring or labor practices, payment of all required withholding taxes,
workers' compensation and unemployment compensation insurance, liability insurance,
OSHA or other safety rules and regulations, construction practices, environmental practices,
wetland protection measures, vehicular safety and/or weight restrictions, refuse disposal
practices, and notices to employees, whether or not such rules, regulations, statutes or
ordinances are set forth or adopted by reference in the Submission Requirements herein.
Pursuant to Laws of Minnesota 1995, Chapter 31, if CONTRACTOR shall fail to pay any
subcontractor hired by CONTRACTOR under this project within 10 days after
CONTRACTOR receives payment from CITY for work for which CONTRACTOR is
liable to any subcontractor, CONTRACTOR shall be liable to the subcontractor for interest
on the unpaid balance, at the rate of 1.5 per cent per month. Any subcontractor aggrieved by
CONTRACTOR'S failure to remit payment to the subcontractor shall, for the purpose of
enforcement, be considered a third -party beneficiary of this contract. However, nothing in
this contract shall be deemed to impose upon CITY any duty to monitor, enforce or
otherwise become involved in payments from CONTRACTOR to any subcontractor.
3. Indemnification. CONTRACTOR shall indemnify and save harmless CITY from
any liability arising out of CONTRACTOR's failure to observe compliance with Paragraph
2 above, specifically including, without limitation, liability arising out of the improper
disposal or storage of any hazardous waste by CONTRACTOR or any entity hired or used
by CONTRACTOR for such disposal.
4. "Warranty of Workmanship Products and Timely Completion. In addition to any
warranty which might be part of the Plans and Specifications/Proposal, CONTRACTOR
warrants that all work completed in connection with the PROJECT shall be done in a
workmanlike and timely manner and in accord with applicable industry standards and
that all chemicals and other products utilized by CONTRACTOR will be chosen for their
effectiveness for the purpose used. Where materials are being furnished by
CONTRACTOR, CONTRACTOR warrants that all materials will be of good quality and
suited for the purpose for which they are intended."
5. Compliance with Statutory Requirements
A. Data Practices Compliance:
Contractor may have access to data collected or maintained by the City to the extent
necessary to perform Contractor's obligations under this contract. Contractor agrees
to maintain all data obtained from the City in the same manner as the City is
required under the Minnesota Government Data Practices Act, Minnesota Statutes
Chapter 13. Contractor will not release or disclose the contents of data classified as
not public to any person except at the written direction of the City. Contractor
agrees to defend and indemnify the City from any claim, liability, damage or loss
asserted against the City as a result of Contractor's failure to comply with the
requirement of the Act or this contract. Upon termination of this contract,
Contractor agrees to return data to the City, as requested by the City.
B. Worker's Compensation
Contractor shall, at the time of execution of this contract, furnish evidence
satisfactory to the City that Contractor maintains or is exempt from maintaining
Worker's Compensation coverage, pursuant to Minnesota Statutes Chapter 176.182.
C. Income Tax Withholding
Prior to the time of final payment of any amounts owing to Contractor under this
agreement, Contractor shall furnish a copy of Form IC -134, certified by the
Minnesota Department of Revenue, documenting that all withholding tax
requirements have been observed by Contractor.
D. Audit
Pursuant to Minnesota Statutes Chapter 16C.05 (subd. 5), the books and records of
Contractor which are relevant to the services being performed under this Contract
shall be subj ect to inspection in accord with said statute, for a period of six years
from the date of final payment hereunder.
4. Performance and Payment Security (Check One)
X Contractor is not required to post any performance and payment security as a
condition of this Contract by reason of the fact that the contract amount is for less than
$75,000.00, and City is not requiring performance security.
Contractor is required to post performance and payment security acceptable to the
City, even though the contract price is less than $75,000.00.
Contractor is required to post performance and payment security because the
contract price is more than $75,000.00.
Note: Regardless of which option above is checked, ifperformance and payment security is
required, the security shall meet that standards outlined in Minnesota Statutes Chapter
574.26.
5. Notices
Any notice which is or should be required to be given to CONTRACTOR shall be
sufficient if addressed as follows, and deposited, postage prepaid, in the regular
United States Mail. Notice shall be deemed to have been received on the third
business day following the postmark:
Duluth Archaeology Center L.L.C.
5910 Fremont Street Suite 1
Duluth, MN 55807
6. Termination
Either party may terminate this agreement on 30 days written notice to the other.
7. Patent
City shall remit to Contractor the amounts billed for services assuming that
Contractor has fully complied with all of the terms of this agreement, completing
the project in a timely and compliant manner.
IN WITNESS WHEREOF, the parties have executed this Agreement the date above written.
CITY OF OTSEGO
in
Mayor
City Clerk
CONTRACTOR
Its
August 15, 2017
Ross Demant
Parks and Recreation Director
City of Otsego
13400 90th ST NE
Otsego, MN 55330
RDemantgci. otsego.mn.us
Re: Scope of Work and Fee Proposal for Phase I Archaeological Survey for Norin
Landing Park Improvement, Otsego, Wright County, Minnesota
File P0013230.00
Dear Ross,
7699 Anagram Drive
Eden Prairie, MN 55344
Main (952) 937-5150
Fax (952) 937-5822
westwoodps.com
(888) 937-5150
In response to your request, we have prepared the following Scope of Work and Fee Proposal for the above
project. It is our understanding that the Otsego Parks and Recreations Department (the Client) will be
improving Norin Landing Park located next to the Mississippi River in the City of Otsego. The park is 3 acres
in area and the improvements will be partially funded through a grant from the DNR. The archaeological
survey is being conducted to satisfy a request by the State Historic Preservation Office (SHPO).
SCOPE OF WORK
The SHPO requires that cultural resource investigations be conducted by a qualified archaeologist who meets
the Secretary of the Interior's qualifications as outlined in 36 C.F.R. 61. The Minnesota SHPO also outlines
standards and guidelines for conducting work in the state. The Westwood Cultural Resource staff will meet
these standards, requirements and guidelines for this project. Dr. Kent Bakken will serve as Principal
Investigator on this project. He has been active in Upper Midwestern archaeology since the early 1980s,
working with both prehistoric and historic sites. This includes both extensive fieldwork as well as repository -
and collections -based research. He holds a BA degree from Moorhead State University, and MA and PhD
degrees from the University of Minnesota. Mr. Ryan Grohnke will act as Field Director and Project Manager.
He has over 14 years of archaeological experience. Westwood routinely assists clients in compliance with
federal, state and local cultural resource laws.
Phase la Literature Review
Prior to fieldwork, Westwood will perform background research at the Office of the State Archaeologist
(OSA) located at Fort Snelling in St. Paul, MN, and SHPO located at the Minnesota History Center in St.
Multi -Disciplined Surveying & Engineering
TBPLS Firm No. 10074302 westwoodps.com
August 15, 2417
Page 2
Paul, MN. A database search request will also be made to SHPO. Cultural Resource survey reports will be
reviewed to determine if the area has been previously surveyed for cultural resources. Archaeological site and
architectural files will be examined to compile an inventory of previously recorded archaeological sites and
historic structures within the project area and a one -mile buffer. Other historic sources will be examined
including the Andreas' Illustrated Atlas ofMinnesota, 1874, the historic Trygg maps and county/city histories
to consider the potential for unrecorded cultural resources in the project area. Research will also include an
assessment of historic atlases, maps, and aerial photography to identify potential cultural resources. Levels of
disturbance will also be assessed by review of historic mapping and photography. The photography and
mapping research will be conducted online, at the Minnesota Historical Society Library, and at the Borchert
Map Library as needed.
If the research indicates that previously recorded archaeological sites are located in the project area or that
that area has been previously surveyed, the Client will be notified immediately to discuss next steps or
changes in the scope.
Phase I Archaeological Survey
An on-site archaeological field survey will be conducted for the defined project "Area of Potential Effect"
(APE). The APE for the project is assumed to be the entirety of the 3 acre park. The survey methodology will
include a visual examination and subsurface shovel testing of the APE. Areas that are located in wetlands, on
a significant slope (greater than 20%), or in an obviously disturbed context will only be examined visually
and not be included in formal survey.
As the project area has low ground surface visibility, subsurface shovel testing will be needed. Shovel tests
will be placed in upland portions of the APE in a 15 -meter interval grid per Minnesota SHPO guidelines.
Shovel tests will generally measure 35 centimeters in diameter and be dug to sterile subsoil, usually no more
than a depth of 1 meter. All material excavated from shovel tests will be screened through 1/4 inch hardwire
mesh. All excavated tests will be back-filled. Artifacts recovered during shovel testing will be collected and
returned to the laboratory to be cleaned, cataloged and analyzed. The location of cultural resource sites and
shovel test excavations will be mapped using GPS equipment.
Reporting
Westwood will prepare a Phase I Archaeological Reconnaissance Survey Report that follows Minnesota
SHPO report guidelines and provide a summary of the historical background, previous cultural resource
investigations, site conditions, field methodology, survey results, conclusions, and recommendations. Site
photographs and mapping will be included. A draft report will be submitted to the Client in electronic PDF
format and revised as necessary based on comments from the Client. The final report will be submitted in
electronic PDF format. A hard copy of the report will be made available upon request. If requested by the
Client, the report will be submitted to the SHPO on the Client's behalf.
If unavoidable or potentially significant archaeological sites are identified during the survey, an impact
assessment will be provided to make a preliminary evaluation if the site exhibits integrity and significance to
be potentially considered eligible for listing on the National Register of Historic Places. Westwood will
provide recommendations for archaeological site avoidance and impact minimization, or suggest formal
evaluation if necessary.
August 15. 2017
Page 3
Assumptions
• Weather will be favorable for archaeological survey. Field investigations must be performed in frost
free and snow free conditions.
• No deep testing will be required.
• Shovel test depths will not exceed 1 meter.
• No more than 40 shovel tests will be required.
• Access to all parcels will be provided prior to the initiation of fieldwork.
• No more than one small archaeological site (10 artifacts or less) will be identified. Artifact analysis
and curation, if needed, will be out of scope.
• No archaeological sites will require additional investigation or formal evaluation. Additional work
would be covered under a separate scope of work.
Schedule
The literature review will be completed within two weeks of a notice to proceed. Fieldwork will be performed
within 2-3 weeks of completion of the literature review. Fieldwork is anticipated to take one week. The Phase
I Archaeological Reconnaissance Survey Report will be submitted 1 week after completion of fieldwork. The
final report will be provided no later than 6 weeks following a notice to proceed. If project planning requires
an expedited schedule, Westwood will work will the client to accommodate their needs.
Timeframe
Consistent communication and project attentiveness are key factors for completion of the Project. Westwood
will begin work on the Project upon authorization to proceed. Fees estimated in this proposal are based on our
assumptions that you will authorize this work to be performed in summer or fall of 2017.
Cost Estimate
Task Description Fee
Cultural Resources
I Literature Review $900
2. Archaeological Survey and Reporting $14,300
TOTAL $15,200
Terms
This work will be completed on a time and materials basis for an estimated fee of $15,200 for both tasks. This
total includes, travel costs, copy fees, and reporting. Services will be completed in accordance with the
attached General Conditions.
Thank you for the opportunity to submit this proposal. To accept, please sign and return the attached General
Conditions. We will proceed with this work upon receipt of your approval. Thank you for the opportunity to
provide this proposal. If you have any questions or if there are other tasks you wish to have explored, please
contact me at 952-906-7403 or ryan.grohnke@westwoodps.com.
August 15, 2017
Page 4
Please contact us if you have any questions.
Sincerely,
WESTWOOD PROFESSIONAL SERVICES
Ryan P. Grohnke
Cultural Resources Field Director/Project Manager
Attachment: General Conditions
Eric Hansen, PE
Director, Environmental Services
General Conditions of Agreement Westwood Professional Services, Inc.
This document, together with the attached Scope of Work and Fee Proposal ("Proposal') for the
Phase I Archaeological Survey for Norin Landing Park Improvements Project dated August 15,
2017 (the "Project"), is an agreement (the "Agreement") between City of Otsego Parks and Recreation
("Client") and Westwood Professional Services, Inc. ("Westwood")
1.01 Basic Agreement
Westwood shall provide, or cause to be provided, the services set forth in this Agreement and as
described in the accompanying Scope of Work and Fee Proposal (the "Services") and shall
provide drawings, specifications, plans, work product, and any deliverables as described in this
Agreement and the Proposal (the "Deliverables"). Westwood may engage consultants to assist in
the performance of the Services.
2.01 Payment Procedures
Preparation oflnvoices. Westwood will prepare a monthly invoice in accordance with
Westwood's standard invoicing practices and submit the invoice to Client.
Payment oflnvoices. Invoices are due and payable within thirty (30) days of receipt. If Client
fails to make any payment due Westwood for Services and expenses within thirty (30) days after
the date of Westwood's invoice, the amounts due to Westwood will be increased at the rate of
1.25% per month after the thirtieth (30'b) day. In addition, Westwood may, without liability, after
giving seven (7) days written notice to Client, suspend Services under this Agreement until
Westwood has been paid in full all amounts due for Services, expenses, and other related charges.
Payments will be credited first to interest and then to principal. Westwood has the right to
employ such persons or professional service providers on a consultant basis to mitigate its
damages.
Paymentfor Services. Client shall pay Westwood as follows:
A. If the work is agreed to on an hourly basis, an amount equal to the cumulative hours charged
to the Project by each of Westwood's employees multiplied by the hourly rates for each employee
for all services performed on the Project, plus reimbursable expenses and Westwood's
consultant's charges, if any.
B. If work is agreed to on a lump sum basis, invoice amounts shall be an amount equal to the
percent of each task's completion multiplied by the lump sum of the task, plus reimbursable
expenses and Westwood's consultant's charges, if any.
3.01 Additional Services
If authorized by Client in writing, or if required because of changes in the Project, Westwood
may furnish services in addition to those set forth in the Scope of Work and Fee Proposal.
Client shall pay Westwood for such additional services an amount equal to the cumulative hours
charged to the Project by each class of Westwood's employees multiplied by the rates for each
applicable billing class, plus reimbursable expenses and Westwood's consultants' charges, if any.
4.01 Termination
This Agreement may be terminated for cause:
A. By either party upon thirty (30) days written notice in the event of failure by the other party
to perform in accordance with the Agreement's terms through no fault of the terminating party.
Notwithstanding the foregoing, this Agreement will not terminate as a result of a failure to
perform in accordance with the Agreement if the party receiving a notice of failure to perform
begins within seven (7) days of receipt of such notice to correct its failure and proceeds diligently
to cure such failure within thirty (30) days of receipt of notice; provided, however, that if and to
the extent such failure cannot be reasonably cured within such thirty (30) day period, and if such
party has diligently attempted to cure the same and thereafter continues diligently to cure the
same, then the cure period provided for herein shall extend up to, but in no case more than, sixty
(60) days after the date of receipt of the notice.
B. By Westwood:
1) Upon seven (7) days written notice if Westwood believes that Westwood is being
requested by Client to furnish or perform services contrary to Westwood's
responsibilities as a licensed professional; or
2) Upon seven (7) days written notice if Westwood's Services for the Project are delayed or
suspended for more than ninety (90) days for reasons beyond Westwood's control.
Westwood shall have no liability to Client as a result of such termination in this paragraph.
The terminating party under paragraphs 4.01.A or 4.01.B, may set the effective date of
termination at a time up to thirty (30) days later than otherwise provided to allow Westwood to
demobilize personnel and equipment from the Project site, to complete tasks providing value
which would otherwise be lost, to prepare notes as to the status of completed and uncompleted
tasks, and to assemble Project materials in orderly files. Westwood shall be compensated for the
time required to complete such tasks.
5.01 Successors, Assigns, and Beneficiaries
Client and Westwood are each hereby bound and the partners, successors, executors,
administrators, and legal representatives of Client and Westwood are hereby bound to the other
party to this Agreement and to the partners, successors, executors, administrators, and legal
representatives (and said assigns) of such other party, in respect of all covenants, agreements, and
obligations of this Agreement.
Neither Client nor Westwood may assign, sublet, or transfer any rights under or interest
(including, but without limitation, moneys that are due or may become due) in this Agreement
without the written consent of the other, except to the extent that any assignment, subletting, or
transfer is mandated or required by law. Unless specifically stated to the contrary in any written
consent to an assignment, no assignment will release or discharge the assignor from any duty or
responsibility under this Agreement.
6.01 General Considerations
A. The standard of care for all professional consulting and related services performed or furnished
by Westwood under this Agreement will be the care and skill ordinarily used by members of
Westwood's profession practicing under similar circumstances at the same time and in the same
locality. Except as expressly set forth in Paragraph 6.01B, Westwood makes no warranties,
express or implied, under this Agreement or otherwise, in connection with Westwood's Services
and Deliverables. Westwood and its consultants may use or rely upon the design services of
Client and others, including, but not limited to, contractors, manufacturers, and suppliers.
2
B. If Client notifies Westwood of a deficiency, or if Westwood determines there is a deficiency,
within sixty (60) days after delivery of a Deliverable to Client, as Client's sole and exclusive
remedy, Westwood shall correct such deficiencies without additional compensation except to the
extent such action is directly attributable to deficiencies in Client -furnished information.
C. Client shall be responsible for, and Westwood may rely upon, the accuracy and completeness of
all requirements, programs, instructions, reports, data, and other information furnished by Client
to Westwood pursuant to this Agreement. Westwood may use such requirements, reports, data,
and information in performing or furnishing services under this Agreement.
D. Westwood neither guarantees the performance of any third party, including contractors, using the
Deliverables or Services nor assumes responsibility for any third party's failure to furnish and
perform any work that uses the Deliverables or Services.
E. Westwood shall not be responsible for the acts or omissions of any contractor(s), subcontractor(s)
or supplier(s), or of any of the contractor's agents or employees or any other persons (except
Westwood's own employees) furnishing or performing any of the contractor's work; or for any
decision made on interpretations or clarifications of Deliverables without consultation and advice
of Westwood.
F. It is understood and agreed that if Westwood's services under this Agreement do not include
construction phase services, and that such services will be provided by Client, then Client
assumes all responsibility for interpretation of Deliverables and for construction observation or
review and waives any claims against Westwood that may be in any way connected thereto.
G. Westwood shall be the exclusive owner of all right, title, and interest in and to any and all
Deliverables, together with any and all related rights of copyright, patent, trade secret, trademark
and service mark, and all other proprietary rights of any kind whatsoever. Subject to the
provisions herein and upon Westwood's receipt of full payment therefore, Westwood hereby
grants to Client, and Client accepts: (i) a nonexclusive, nontransferable, without the right to
sublicense, royalty -free license to use the Deliverables for the sole purpose of constructing the
Project: and (ii) the right to reproduce applicable portions of the Deliverables for Client's
contractors, consultants, and suppliers solely for use in construction of the Project, provided
Client reproduces on such copies the copyright notice and other proprietary legends that were on
the original Deliverable. Deliverables are not intended or represented to be suitable and are not
licensed to Client for reuse by Client or others on extensions of the Project or on any other
project. Upon termination of this Agreement by Westwood pursuant to paragraph 4.01, the
license granted herein shall terminate. Any unauthorized use of the Deliverables will be at
Client's sole risk and without liability to Westwood or to Westwood's consultants. Client shall
indemnify and hold harmless Westwood and Westwood's consultants from all claims, damages,
losses, and expenses, including attorneys' fees arising out of or resulting therefrom.
H. This Agreement is to be governed by the laws of the State in which the Project is located.
I. All express indemnifications or limitations of liability included in this Agreement will survive its
completion or termination for any reason.
J. Any provision or part of the Agreement held to be void or unenforceable under any laws or
regulations shall be deemed stricken and all remaining provisions shall continue to be valid and
binding upon Client and Westwood.
K. Nothing contained herein shall be construed to mean that Westwood and Client are engaging in a
joint venture or partnership.
L. Westwood shall maintain insurances during the term of this Agreement as indicated in the
attached Attachment A to this Agreement. Westwood will provide a certificate of such
insurance to Client upon request.
M. If either party hereto shall commence any action or proceeding against the other in connection
with the terms, conditions, or obligations under this Agreement, the prevailing party shall be
entitled to recovery of its reasonable attorney's fees and costs incurred herein. Interest on any
outstanding balance shall accrue at the rate of 1.25% per month.
N. In the event the terms of these General Conditions conflict with the Proposal or other contract
documents, these General Conditions shall control.
7.01 Hazardous Environmental Conditions
The parties acknowledge this Agreement does not include any services related to a Hazardous
Environmental Condition. Such conditions include, but are not limited to the presence of
asbestos, PCB's, petroleum, hazardous substances or waste, and radioactive materials. If
Westwood or any other party encounters a Hazardous Environmental Condition, Westwood may,
at its option and without liability for consequential or any other damages, suspend performance of
Services on the portion of the Project affected thereby until Client: (i) retains appropriate
specialist consultants or contractors to identify and, as appropriate, abate, remediate, or remove
the Hazardous Environmental Condition; and (ii) warrants that the site is in full compliance with
applicable Laws and Regulations.
8.01 Allocation of Risks
A. To the fullest extent permitted by law, Westwood shall indemnify and hold harmless Client,
Client's officers, directors, partners, and employees from and against any and all costs, losses, and
damages (including but not limited to all fees and charges of consultants, architects, attorneys,
and other professionals, and all court or arbitration or other dispute resolution costs) caused by
the negligent acts or omissions of Westwood or Westwood's officers, directors, partners,
employees, and Westwood's consultants in the performance and furnishing of Westwood's
services under this Agreement.
B. To the fullest extent permitted by law, Client shall indemnify and hold harmless Westwood,
Westwood's officers, directors, partners, employees, and Westwood's consultants from and
against any and all claims, demands, costs, losses, and damages (including but not limited to all
fees and charges of consultants, architects, attorneys, and other professionals, and all court or
arbitration or other dispute resolution costs) and liabilities that Westwood may incur or suffer
which arise out of or relate to: (i) the negligent acts or omissions of Client or Client's officers,
directors, partners, employees, and Client's consultants with respect to this Agreement or the
Project; and (ii) Client's breach of or failure to perform any of its obligations of this Agreement
or a Proposal.
C. To the fullest extent permitted by law, Westwood's total liability to Client and anyone claiming
by, through, or under Client for any cost, loss, or damages caused in part by the negligence of
Westwood and in part by the negligence of Client or any other negligent entity or individual, shall
not exceed the percentage share that Westwood's negligence bears to the total negligence of
Client, Westwood, and all other negligent entities and individuals. Westwood shall not be liable
for any incidental, consequential, indirect, or punitive damages arising out of this Agreement or
Westwood's provision of the Services or the Deliverables, even if Westwood has been advised of
the possibilities of such damages. In no event shall Westwood's total liability in connection with
this Agreement exceed the amounts paid by Client to Westwood under this Agreement.
11
9.01 Force Majeure
An event of "Force Majeure" occurs when an event beyond the control of the Party claiming
Force Majeure prevents such Party from fulfilling its obligations. An event of Force Majeure
includes, without limitation, floods, hurricanes and other adverse weather, war, riot, civil
disorder, acts of terrorism, disease, epidemic, strikes and labor disputes, actions or inactions of
government or other authorities, law enforcement actions, curfews, closure of transportation
systems or other unusual travel difficulties, or inability to provide a safe working environment for
employees.
In the event of Force Majeure, the obligations of Westwood to perform Services shall be
suspended for the duration of the event of Force Majeure. In such event, Westwood shall be
compensated for time expended and expenses incurred during the event of Force Majeure and the
schedule shall be extended by a like number of days as the event of Force Majeure. If Services
are suspended for thirty (30) days or more, Westwood may, in its sole discretion, upon five (5)
days prior written notice, terminate this Agreement or the affected Work Order, or both. In the
case of such termination, in addition to the compensation and time extension set forth above,
Westwood shall be compensated for all reasonable termination expenses.
10.01 Right of Entry
Client grants to Westwood, and, if the Project site is not owned by Client, warrants that
permission has been granted for, a right of entry from time to time by Westwood, its employees,
agents and subcontractors, upon the Project site for the purpose of providing the Services. Client
recognizes that the use of investigative equipment and practices may unavoidably alter the
existing site conditions and affect the environment in the area being studied, despite, the use of
reasonable care. Client shall indemnify and hold Westwood harmless from claims for damages
caused in part by reasons of Westwood's provision of Services.
11.01 No Third Party Rights
This Agreement shall not create any rights or benefits to parties other than Client and Westwood.
No third party shall have the right to rely on Westwood's Deliverables or opinions rendered in
connection with the Services without the written consent of Westwood and the third party's
agreement to be bound to the same conditions and limitations as Client.
12.01 Pre -lien Notice
(A) ANY PERSON OR COMPANY SUPPLYING LABOR OR MATERIALS FOR THIS IMPROVEMENT
TO YOUR PROPERTY MAY FILE A LIEN AGAINST YOUR PROPERTY IF THAT PERSON OR
COMPANY IS NOT PAID FOR THE CONTRIBUTIONS.
(B) UNDER MINNESOTA LAW, YOU HAVE THE RIGHT TO PAY PERSONS WHO SUPPLIED LABOR
OR MATERIALS FOR THIS IMPROVEMENT DIRECTLY AND DEDUCT THIS AMOUNT FROM OUR
CONTRACT PRICE, OR WITHHOLD THE AMOUNTS DUE THEM FROM US UNTIL 120 DAYS AFTER
COMPLETION OF THE IMPROVEMENT UNLESS WE GIVE YOU A LIEN WAIVER SIGNED BY
PERSONS WHO SUPPLIED ANY LABOR OR MATERIAL FOR THE IMPROVEMENT AND WHO GAVE
YOU TIMELY NOTICE.
13.01 Total Agreement
This Agreement, together with any attached documents, constitutes the entire Agreement between
Client and Westwood and supersedes all prior written or oral understandings regarding this
subject. This Agreement may only be amended, supplemented, or modified by a mutually
executed written instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, effective on the latest date
indicated below.
CLIENT:
City of Otsego Parks and Recreation
By: _
Name:
Title:
(PRINT/TYPE)
Date Signed:
WESTWOOD:
Westwood Professional Services, Inc.
Name: Ryan P. Grohnke
(PRINT/TYPE)
Title: Cultural Resources Project Manager
Date Signed: August 15, 2017
Address/Contact for giving notices: Address/Contact for giving notices:
Attachments: A Insurance
Westwood Professional Services, Inc.
C/O Joanna Vossen / General Counsel
7699 Anagram Drive
Eden Prairie, Minnesota 55344-7310
101
ATTACHMENT A
INSURANCE
A. Insurance. Westwood shall, during the life of this Agreement, maintain the following insurances:
1. Commercial General Liability (occurrence form not less than):
$2,000,000 General Liability
$2,000,000 Products and Completed Operations Aggregate
$1,000,000 Personal and Advertising Injury
$1,000,000 Each Occurrence
$10,000 Medical Expense
2. Commercial Automobile Liability (all scheduled auto, hired and non -owned autos):
$1,000,000 Combined Single Limit
Umbrella
$2,000,000 Aggregate
$2,000,000 Each Occurrence
4. Workers Compensation
$1,000,000 Each Accident
$1,000,000 Policy Limit
$1,000,000 Each Employee
Professional Liability Errors and Omissions Insurance. Westwood shall carry Professional Liability
Errors and Omissions insurance with limited contractual liability in the amount of $2,000,000 per claim
and in the aggregate for the duration of this Agreement.
7
14 Minnesota
Historical Society
STATE HISTORIC PRESERVATION OFFICE
July 11, 2017
Mr. Ross Demant
Parks and Recreation Director
City of Otsego
1340090 th Street NE
Otsego, MN 55330
RE: Replace and upgrade Mississippi River bo
T121 R24 S10 NE
Otsego, Wright County
DNR Grant Number: LW27-01411
SHPO Number: 2017-2295
Dear Mr. Demant:
Thank you for the opportunity to comment on t
responsibilities given to the State Historic Prese
1966 and implementing federal regulations at 3
Minnesota Historical Society by the Minnesota t
Under 36 CFR 800.4(b -c) it is the federal agenc
properties that may be affected by the propose
nature and location of the proposed project, u
proceed, we recommend that an archaeologic;
Secretary of the Interior's Standards for Identil
expressed an interest in undertaking; such sury
preservationdirectory.mnhs.org, and select "/
We will reconsider the need for survey if the p
disturbed. Any previous survey work must me
right-of-way are not automatically considered'
beneath the plow zone and in undisturbed pot
Using the Power.of History to Transform Lives
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