CONTRACT DRAFTING AND FORMS

Samples of Commonly Used Contract Provisions and Contracts

Minnesota County Attorneys Association

© 2012 Minnesota County Attorneys Association All Rights Reserved Minnesota County Attorneys Association’s publications and programs are intended to provide current and accurate information about the subject matter covered and are designed to help attorneys maintain their professional competence. Publications are distributed and oral programs presented with the understanding that MCAA does not render any legal, accounting or other professional advice. Attorneys using MCAA publications or orally conveyed information in dealing with a specific client or other legal matter should also research original and fully quoted sources of authority. No part of this document may be reproduced, transmitted or copied in any form or by any means graphic, electronic, or mechanical, including photocopying, recording, or by information storage and retrieval system, without written permission from the Minnesota County Attorneys Association.

     

Contract Drafting and Forms    

Revised and Updated by   

Barbara Russ Assistant Saint Louis County Attorney 

 October 2012 

   

 Original Publication Prepared by  Lori Dando and Mary Peterson 

 Updated by Barbara Russ in 2003 

      

Minnesota County Attorneys Association 

INTRODUCTION

A contract is a binding, legally enforceable agreement between two or more parties. It is

imperative, therefore, that in drafting a contract, care is taken to understand and clearly set out the

agreement between the parties, as well as any proposed remedies in the event of breach,

termination, discord, or unanticipated occurrences.

The complexity or simplicity of a contract is dependent upon such factors as identity of the

parties, subject matter, duration, consideration, financial expenditure, risks of liability or loss, and

importance of the contract to the parties. In some situations, a handshake is sufficient; in some

situations, no document will prevent litigation.

It is important to keep in mind in contract drafting that the written document is the final

statement of the agreement between the parties. Prior agreements or writings are not presumed to

be part of the final contract document unless specifically incorporated. The final contract,

therefore, should clearly state or make reference to information, data, standards, documents, or any

other exhibits which clarify the intent of the parties.

After you have considered the language and provisions necessary to state the intent and

present agreement of the parties, you should concentrate on anticipating and solving potential risks

or variables which may cause the contract to be breached, terminated, or otherwise not performed.

It is very important that the provisions regarding how a contract may be lawfully terminated, as

well as how damages will be assessed, are clearly drafted and agreed to by the parties.

Remember, if every party to an agreement perfectly understood their obligations and always

performed them, there would be no need for a written contract. The purpose of a contract is to

clarify the understanding of the parties and to anticipate remedies in the event an agreement is

breached.

USE OF MANUAL

The following contract manual contains commonly used form provisions for reference in

contract drafting and some sample contracts which are just that - samples. In some situations, the

samples provisions have minor variations which may or may not make a significant change in the

interpretation of a particular agreement. For those unfamiliar with contract drafting, you should

read the materials at the beginning of each section before selecting proposed provisions for your

own use.

This manual is divided by separate sections to indicate information and sample language

for standard provisions or specific types of contract provisions. The order of provisions in a

contract (except for the introductory provisions) is not necessarily significant. The contract

should be drafted to promote logical order under the facts of the agreement or chronological order

if activities are to be performed in sequence.

Each section contains a series of “Sample Provisions” numerically listed which cover

topics of the same general nature. Divisions within numerical sections, i.e. “a,” “b,” “c,” may or

may not be mutually exclusive. You must carefully read each provision to determine its

applicability to your agreement.

Certain contracts such as those involving federal and state funds will require provisions not

found in this manual and the drafter is advised to review grant documents for requirements that

should be passed on to other parties and to obtain reference materials from the funding source.

The sample contracts at the end of the manual should be used as a start to drafting an

agreement and will rarely contain all the provisions you need for your contract. If you do not see

an example of an agreement you need you should feel free to contact other counties for agreements

they may have that can be shared to get you started.

I. CONTRACT TITLE AGREEMENT FOR 2012 MEDICAL EXAMINER SERVICES COUNTY OF _________/LAKE SUPERIOR MEDICAL

The title of a contract should indicate the subject matter and other important information in

a concise manner. The title can include the contract purpose (i.e. purchase of goods, services), the

parties, and pertinent dates (i.e. Agreement for 2012 Summer Internships). Terms such as

“Memorandum of Understanding,” “Stipulation for Settlement,” “Lease,” “Grant,” or “Contract”

may be used in place of “Agreement” when more appropriate for the situation.

Sample Provisions:

1.a. CONTRACT BETWEEN THE COUNTY OF __________ AND ______________________________________ FOR ______________________________________ Contract Period: _________________________

1.b. COMMUNITY DEVELOPMENT BLOCK GRANT PROGRAM PLANNING AGREEMENT BETWEEN _______________ COUNTY and _________________________

II. IDENTIFICATION OF PARTIES

This Agreement is made this day of ______, by and between the County of _________, a body corporate and politic existing under the laws of the State of Minnesota, hereinafter referred to as “County,” and Construction Company, (address), hereinafter referred to as “Contractor.”

Parties should initially be identified by formal name and address but thereafter can be

given a reference name as indicated by: hereinafter referred to as “______________.” Common

reference words are often used in the place of the names of parties, e.g.: County or

Department/Contractor’s initials (“BCBS” for Blue Cross Blue Shield) or a shortened title

(“Consultants,” “Architects”); Lessor/Lessee; Purchaser or Buyer/Seller; Owner/Independent

Contractor; Grantor/Grantee. If the date is not included in the identification of the parties, then

each signature should be dated and the contract should indicate that it is effective as of the last

dated signature. See XXXII. Signature Blocks.

If a department is acting as the contracting party on behalf of the County, it may only do so

by authorization of the County Board. When such authorization exists, the above paragraph can

include the phrase “by its (department) ,” after the words State of Minnesota. The title of a

department head (e.g. Sheriff, Highway Engineer) can be substituted for the name of a department.

Sample Provisions:

2.a. This Contract is made and entered into between the County of _________,

__________________ Department, (address) by and through its Public

Works Department, hereinafter “County” and _____________, (address) ,

hereinafter “Contractor.”

III. RECITALS

WHEREAS, the County is required by Minn. Stat. § ______ to provide _________ services; and

WHEREAS, the County desires to purchase said services from Contractor

and Contractor is able to provide said services;

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the parties do agree as follows:

Recitals are not a necessary part of every contract and are not considered a part of the

operative contract language. The recital is intended to set out the background history, the party’s

intent, the basis of the contract, and the statutory or legal authority for the contract. If a recital

expresses an important term of an agreement, it is wise to restate that term in the body of the

contract, or to make reference to the “whereas” clauses in the body of the contract. See IV.

General Provisions. The recitals should set out for a stranger to the contract the purpose of the

document and any authorization supporting the document.

Sample Provisions:

3.1 a. WHEREAS, the County desires to purchase services/materials/goods/ /equipment for ; and

b.1) WHEREAS, Contractor submitted a bid in response to the County’s

request for bids/quotes; and

b.2) WHEREAS, Contractor responded to the County’s request for proposals (RFP) by a proposal dated __________; and

c.1) WHEREAS, Contractor was the lowest responsible, responsive bidder; and

c.2) WHEREAS, the County selected _______________ for award of this

Contract based on the proposal submitted; and d.1) WHEREAS, Contractor is a partnership/sole proprietorship properly

qualified to do business under the laws of Minnesota; and

d.2) WHEREAS, Contractor is a corporation duly organized under the laws of

the State of _____________ and registered to do business in the State of Minnesota; and

e.1) WHEREAS, Contractor has the authority to execute this Contract as a

binding legal obligation, fully enforceable in accordance with its terms and conditions.

e.2) WHEREAS, Contractor desires to and is capable of providing the

necessary services according to the terms and conditions states herein; and

f.1) WHEREAS, the County Board by Resolution #______, authorized the County to enter into a Contract with Contractor for the provision of said services/materials/ goods/ equipment.

f.2) WHEREAS, the County has the power and right to enter into this

Agreement to undertake and complete the transactions contemplated in this Contract.

NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the parties agree as follows:

IV. GENERAL PROVISIONS

IV. GENERAL PROVISIONS

A. Purpose

The purpose of this contract is to define the rights and obligations of the parties with respect to _____________.

B. Recitals

The recitals set forth in the whereas clauses above are incorporated by reference as if fully set forth herein.

C. Definitions

For purposes of the Contract, the following terms, listed below, shall be defined as indicated.

A contract may begin with a catchall, “General Provisions,” or a paragraph entitled

“General Purpose.” If a contract is very complex or incorporates many different statutory

authorities, citations, parties or agencies, the initial paragraph may make reference to the various

statutory cites or parties, indicating in general what the contract will cover.

In addition, definition provisions may be included in General Provisions or may be

separated into a separate section, if necessary. A definition section should be used if a contract

has terms of art, specific standards, words that have several meanings, or words that must be

defined in reference to something else.

Sample Provisions:

4. DEFINITIONS

a. For purposes of this Contract the terms defined in Minn. Stat. _______ shall have the meanings given them therein, except as limited, amended or otherwise defined by this Contract.

b. Unless the language or context clearly indicates that a different meaning is

intended, the words, terms and phrases stated below, when capitalized, shall have the following meaning:

Titles

Commissioner: shall mean Commissioner of _____________.

Administrative Rules

The official rules and regulations of the Minnesota Department of ______________.

State Standards

For purposes of this document, “state standards” shall mean Minnesota Statutes sections ____________ et seq., and the Interim Standards for __________________, (201__) as attached hereto as Exhibit 1, or as those standards are amended or superseded. The standard which shall be deemed to apply is that which is or was in effect at the time the action taken to conform with the state standards was taken.

Uniform Commercial Code Terms

For hard goods, the U.C.C. definitions of delivery and acceptance shall be applicable unless otherwise defined in Contract. Contract Documents

It is understood and agreed that the Request for Bids/Request for Proposal, Exhibits, any addenda issued by the County, the signed proposal Form, the signed Purchase Order, and the Contract shall collectively constitute the Agreement between the County and Bidder (after award, the “Contractor”), and shall be referred to as the Contract Documents and the work shall be done in accordance therewith.

Other

“The work” shall mean the equipment, supplies, materials, labor and services to be furnished under the contract and the carrying out of all obligations imposed by the contract documents.

The words “approved,” “reasonable,” “suitable,” “acceptable,” “proper,” “satisfactory,” or words of like effect and import, unless otherwise particularly specified herein, shall mean approved, reasonable, suitable, acceptable, proper, or satisfactory in the judgment of the County.

Whenever in these contract documents the expression “it is understood and agreed” or an expression of like import is used, such expression shall mean the mutual understanding and agreement of the parties executing the Contract Agreement.

V. TERM OR CONTRACT DURATION

The term of this Agreement shall be from _____________ to

______________, the date of signature by the parties notwithstanding, unless earlier terminated as provided herein.

The date that an agreement is signed is not necessarily the same date used to determine the

term or duration of the contract. Therefore, care should be taken to make sure the contract term

and date of signing of an agreement do not mistakenly conflict or create ambiguity.

The term of an agreement may be drafted in many forms. The term may be “one year

from the date of execution of this Agreement,” in which case the date of signing may be the

reference date. However, if a contract has separate dates by signature lines, this creates

ambiguity. If separate dates by signatures are important, then the contract should have a

provision explaining the purpose of the separate dates. The sample provision, above indicated, is

intended to prevent any confusion as to the date of execution, regardless of the actual dates of

signing by the parties.

Sample Provisions:

5. Term

a. The term of this Contract shall be from ________________ to and including ______________ unless earlier terminated by law or according to the provisions herein.

b. The term of this Contract shall be from ________________ to and including

_____________, regardless of the date of signatures hereunder, unless earlier terminated by law or according to the provisions herein.

c. This Contract shall be in effect from the date of execution by all parties, or from the

commencement of services hereunder, whichever is first, and shall continue in effect until ___________________.

c.1) all services to be provided by Contractor pursuant to this Contract are satisfactorily completed and final payment is made unless earlier terminated by law or according to the provisions herein.

c.2) terminated in accordance with the provisions herein.

d. At the County’s option the term of this Contract may be extended until the

completion of the project described herein.

e. This Contract shall be automatically renewed for a term of _____________ unless written notice of intent to terminate is given to all parties _____________________

e.1) ________days prior to the expiration of the current term.

e.2) by occurrence of (event) .

5. Option Term

a. At the termination of the above Contract term this Contract may be renewed, upon

agreement of the County and Contractor, for (additional period) provided that Contractor has satisfactorily performed the services herein described.

b. Such renewal(s) shall be under the same terms and conditions stated in this

Contract, except ____________.

b.1) No option to renew shall extend beyond provision of services for the Contract term of (year).

b.2) There shall be no option to renew any extension of this Contract.

b.3) The payment for services shall be adjusted upon the agreement of the

County and Contractor to assure reasonable remuneration for services.

b.4) The payment for services shall be adjusted as follows: c. Before the commencement of any renewal period, Contractor shall submit

verification of ____________________.

c.1) Performance, Labor and Material Payment Bond as required under Article ____.

c.2) insurance certificates as required under Article ____.

Said Bonds and certificates shall cover the renewal term.

d. Notice of intent to renew shall be given by Contractor at least sixty (60) days but no more than ninety (90) days before the expiration of the contract term.

e. To exercise said option to renew Contractor may sign and return the first page of

“Exhibit ___ (Notification Option to Renew)” attached hereto. If said option is accepted by the County, and all terms mutually agreed upon, said Exhibit upon execution by all parties shall become an Addendum to this Contract, extending the Contract according to the terms and conditions set forth therein. Said Exhibit is provided for the convenience of the parties and is not meant to exclude any other means of exercising the option to renew when mutually agreed upon.

VI. CONTRACTOR/COUNTY OBLIGATIONS

Scope of Services

Consultant will review and evaluate ___________ to identify repairs or replacements necessary to bring the project site into compliance with Minn. Stat. § ____ and the regulations pertinent thereto. Consultant shall create a management plan which shall include: _____________.

County Responsibilities

The County shall provide Consultant with all records and data pertinent to

the project and will provide assistance of County staff as requested. The County shall specifically make available the following equipment for use in the project:

A contract can include any terms, promises, conditions, requirements, standards of quality

or conduct, or other specificity deemed important by the parties. It is the responsibility of the

party requesting a contract to provide the information pertinent to acceptable performance of the

parties under both normal circumstances and, alternatively, when certain known or accepted risks

occur. The original bid specification, correspondence between the parties, or Response to

Request for Proposals may be incorporated into a contract to establish the Contractor’s/County’s

obligations.

Since the obligation section of a contract is the heart of the agreement, time should be spent

to make sure that the important activities or acceptable forms of performance of activities are

clearly described. Where industry standards are applicable, it is assumed that parties contracting

for goods or services intend that the general standards of the industry apply. If the parties intend

to deviate from general standards or standards accepted in the industry (i.e. requiring stricter

standards or lesser standards), then the contract should so specify.

It may or may not be sufficient to suggest that a party is responsible to provide a “report” or

“draft copy” or “sample results” or other product or service without more specific detail as to the

form that is expected or the result that is anticipated. For example, it may be necessary in a

contract to require that an independent contractor provide a report in a format acceptable to the

reviewing agency or with sufficient data so that another independent contractor can analyze the

data to form a conclusion. As another example, it may be necessary for a contractor to provide a

draft document which is sufficiently designed so that another bidder can make a responsible bid

proposal by relying on the draft document (e.g. an architect’s schematic design sufficiently

detailed so that mechanical and electrical engineers can provide projected project costs on

proposed building project).

Sample Provisions:

6. CONTRACTOR’S OBLIGATIONS

6.1 General Description. Contractor shall provide the following services/materials/goods/ equipment:

6.2 Conformance to Specifications

a. Services shall be provided in accordance with the criteria set out in Exhibit ____,

“title)” which is attached hereto.

b. Contractor agrees to sell and the County agrees to purchase ____________________ which shall conform in every material respect to the specifications set out in _____________________________________.

6.3 Conflicting Terms

a. If there is any conflict between the Contract, the Request for Proposal and/or the

Contractor’s response, the Contract shall govern. If there is any conflict between the RFP and the response, the RFP shall govern.

b. If there is any conflict between the Contract, the bid specifications and/or the Contractor’s bid, the Contract shall govern. If there is any conflict between the bid specifications and the Contractor’s bid, the bid specifications shall govern.

c. The Contractor shall promptly notify the County of any discrepancy between the

Contract Documents and conditions at the site, or any errors, or omissions, or instructions, which may be discovered in the course of the work. The County will make a determination in writing whether any error or discrepancy exists. Any adjustment or work done without this determination shall be at the Contractor’s own risk and expense. The Contractor shall review the starting and completion dates and shall warrant that the work can and will be performed within the time frame stated in Bid Proposal Sheet.

6.4 Delivery Schedule

a.1) Services to be accomplished by Contractor as described herein shall commence not

later than __________________.

a.2) and shall be completed at the earliest possible date and in any event not later than __________________.

b. The parties shall comply with the following schedule for the provision of services:

c. Delivery will proceed as outlined in the Work Schedule, which is attached hereto as Exhibit _______.

6.5 Delivery

a. Contractor shall provide agreed upon services/materials/goods/equipment by

_________________________.

b. Contractor shall provide agreed upon services/materials/goods/equipment within ______ days/weeks/months of _________________________.

b.1) the date of execution of this Contract by all parties,

b.2) the date of commencement of services hereunder,

b.3) (event) .

b.4) __________________ or _________________, whichever occurs first.

6.6 Place of Delivery. Contractor shall deliver all goods specified herein to the County at ________ (place of delivery) on or before the date stated above.

6.7 Timeliness

a.1) Time is of the essence in this Contract. Failure by a party to perform its

obligations in a timely manner may be considered by the other party as a material breach, which shall entitle the nondefaulting party to immediately terminate the Contract by delivery of written notice to defaulting party.

a.2) Time of delivery is of the essence, and the failure of Contractor to deliver the

specified goods by the date stated herein shall constitute a material breach of this Contract, which shall entitle the County to immediately terminate the Contract by delivery of written notice to Contractor.

b. It is understood and acknowledged by the parties that in the course of this project

the Work Schedule may be amended from time to time, upon consultation and agreement of the parties. Notwithstanding the foregoing, it is understood that time is of the essence in the provision of services and the Contractor is expected to diligently proceed with completion of agreed upon terms and provisions of this Contract.

c. The time of completion is of the essence in this Contract. The starting date of this

project will be ___________, with completion by ________________. If at any time the work is behind schedule due to any act or neglect by the Contractor, it shall immediately put into effect definite procedures for getting the work back on schedule. The procedures shall be subject to review and modification by the County. The Contractor will not be allowed extra compensation for costs incurred by it because of accelerated operations required to maintain schedule.

The Contractor expressly agrees that the prices named in the Contract Documents include allowance for all hindrances and delays form any cause during the performance of the work.

6.8 Extension of Time

a.1) Any such extension of time which may be granted by the County shall not operate

to release the surety from any of its obligations.

a.2) Extensions of time will not be granted for delays caused by unfavorable weather, unsuitable ground conditions, equipment breakdown, inadequate construction force, or in the failure of the Contractor to place orders for equipment or materials sufficiently in advance to insure delivery when needed.

a.3) Extensions of time will not be granted for delays for work stoppages ordered by the

County as a result of the Contractor’s noncompliance with any of the conditions of

the Contract documents or permits, licenses, binding agreements or stipulations that are made a part thereof.

6.9 Notice to Proceed. The County shall give the Contractor written Notice to

Proceed. The Contractor will be expected to start active and continuous work on the Contract after the date of the Notice to Proceed. In no case shall work begin prior to the date of the Notice to Proceed.

6.10 Eligible Clients. Services shall be provided to clients who are designated or

referred by the County and determined eligible under the criteria set out in Exhibit “____,” “______________________,” which is attached hereto.

6.11 Inspection

a.1) The County may appoint such Inspectors as the County deems proper to inspect the

materials furnished and the work performed for compliance with the Contract Documents. Any Inspectors appointed shall be specified in writing to the Contractor prior to the commencement of this Contract. The Contractor shall furnish all reasonable assistance required by the Inspectors for the proper inspection of the work. Should the Contractor object to any order given by any Inspector, the Contractor may make written appeal to the County for a decision.

a.2) Contract Officers shall have the authority to reject work which is unsatisfactory,

faulty or defective or does not conform to the requirements of the Contract Documents.

a.3) The Contractor shall furnish to the County’s Inspectors access at all times to the

work site used by the Contractor, and shall provide them every reasonable facility for the purpose of inspection, even to the extent of discontinuing portions of the work temporarily.

6.12 Reports/Evaluations

a. In order to assist the County in its obligation to evaluate and monitor Contractor’s

performance, Contractor shall allow personnel of the County access to Contractor’s premises or the job site.

b. Contractor shall maintain and upon request furnish the County with program and

financial information, including evaluation and performance criteria and reports which are reasonably required for effective administration of services.

c. Contractor shall, upon reasonable notice, meet with the County personnel to assist

the County in evaluation of services.

d. Contractor shall provide the County with reports as the County may from time to time reasonably require, including, but not limited to, the following: _________

1) Within 90 days of the termination of this Contract, an audit performed by an

independent auditor. If required of the County, Contractor shall comply with the audit standards set forth in the grant agreement between the County and .

2) Contractor shall furnish the County with information regarding any revenue

received for program costs. In the event Contractor hereafter receives revenue other than from this Contract, and such revenue is used to provide any or all of the above services or to pay the personnel listed in the referenced proposal for their time allocated to providing said services, then that revenue shall be deducted from the amount to which Contractor would otherwise be entitled under this Contract. Contractor further agrees to return any or all excess payment to the County within 30 days of the date which the excess becomes known.

6.11 Contractor’s Personnel

a. Contractor shall provide the County with such information regarding the

qualifications of its staff, including professionals, volunteers, and others, as is required by the County to verify that present and subsequent services are being rendered by competent, trained, and properly licensed or certified personnel.

b. Contractor shall notify the County within five (5) days of any change in ownership,

board of directors or executive director. The County may terminate this Contract if it decides, in its sole discretion, that the change of ownership, board of directors or executive director makes the continuation of this Contract not in the County’s best interests.

c. The Contractor shall at all times employ sufficient labor for prosecuting work to

full completion in the manner and time prescribed by this Contract. At the written request of the County’s designated project manager any person employed by the Contractor shall, for good cause, be removed forthwith by the Contractor. If the person is not removed or if replacement personnel are deemed unsuitable for proper prosecution of the work, the work may be suspended by written notice until this requirement has been met.

d. It is understood by the parties that _____________ shall perform the services

hereunder for the Contractor unless the County agrees in writing to another individual(s).

6.12 Transportation Equipment. Contractor shall provide all vehicles necessary for the

provision of the transportation services specified herein. In addition, Contractor

warrants and represents that all vehicles used to provide transportation services hereunder are properly equipped with safety equipment and devices, including properly installed seatbelts for all passenger seats, and are maintained at all times in a safe operating condition. Contractor shall maintain equipment insurance pursuant to the provisions of this Agreement or as minimally provided by State law, whichever is greater.

6.13 Location. Contractor shall provide purchased services at the following

location(s):

a. Any change in location must be evidenced by written amendment to this Contract.

b. Contractor may change location upon written notice to and agreement with the County in accordance with applicable law.

6.14 Publicity

a. Contractor shall acknowledge County funding in all publicity including, but not

limited to, brochures, posters, newsletters and audiovisual presentations. Acknowledgment shall use the phrase “supported in part by funds from _________ County” or comparable language.

b. Contractor will not use the County’s name in any brochure, pamphlet or otherwise

in a way which implies endorsement or recommendation.

6. COUNTY’S OBLIGATIONS

The County will:

a) Provide full information as to requirements for the project.

b) Assist the Contractor by placing at it’s disposal all available written data pertinent to the project, including existing reports and other data affecting the project.

c) Acquire all land, easements, and rights-of-way for the project.

d) Guarantee access to the project site and make all provisions for the Engineer to

enter upon public and private lands as required by the Engineer to perform the services under this Contract.

e) Examine all studies, reports, sketches, opinions of construction costs,

specifications, drawings, proposals and other documents presented by the Engineer and promptly render its decisions pertaining thereto.

f) Pay all costs incident to advertising for bids.

g) Provide legal review of the construction contract documents and provide such

accounting and insurance counseling services as are required for the project.

h) Designate a person as the County’s representative with respect to the Engineer’s services to be performed under this Contract; such person shall have complete authority to transmit instructions, receive information, interpret and define the County’s policies and decisions with respect to services covered by this Contract.

I) Give prompt written notice to the Engineer whenever the County observes or

otherwise becomes aware of any defect in the project.

j) Furnish or instruct the Engineer to provide at the County’s expense necessary additional services.

k) Furnish to the Engineer prior to any performance by the Engineer under this

Contract, a copy of any design and construction standards which the County shall require the Engineer to follow in the preparation of the construction contract documents for the project.

l) Act promptly on all “Change Orders” and provide authorization. 6.1 County Support. County will furnish Contractor temporary working space for the

duration of this Contract, local telephone service, and copies of County information necessary for the performance of the Contract. Contractor shall be responsible for furnishing at its own expense all other clerical help, equipment and supplies necessary in the performance of its work.

VII. WARRANTIES/GUARANTEES

Seller warrants that the equipment provided pursuant to this Agreement will be compatible with the County’s present equipment operating in ______________ Department. In the event that any part of Seller’s equipment is incompatible or does not function to fit the County’s intended needs, Seller will repair or replace said equipment at no cost to the County.

Warranties or guarantees may be provided by a contractor with the sale of goods and

services. You should be generally familiar with Minn. Stat. Ch. 336 (Uniform Commercial Code)

and specifically with Minn. Stat. §§ 336.2-312 through Minn. Stat. §§ 336.2-318 (Article 2.

Sales; Warranties). A contract may also designate any other type of guarantee or warranty needed

for particular circumstances, as, for example, a contractor guaranteeing that a particular piece of

equipment is compatible with other types of equipment, or a contractor guaranteeing that a

specially made piece of equipment is fit for a particular purpose.

Because certain warranties and guarantees have a specific duration, it is important to know

when a time period for warranty or guarantee begins. A contract can have a provision indicating

the date of acceptance of a particular product as the date from which the duration of the warranty or

guarantee will be determined. “Acceptance” would need to be defined since acceptance may be

the date of receipt of goods or may be the date goods are installed and satisfactorily working.

Because certain warranties and guarantees depend upon particular action of the owner or

buyer, a contract may also include a provision which requires the seller to provide written

documentation of warranties or guarantees, or product manuals that indicate appropriate servicing

in order to maintain the seller’s warranties or guarantees. A contract may also include a provision

indicating the seller’s representative for purposes of notice of defect or repair. Such

representative may be a different individual or business than the original contracting party.

Sample Provisions:

7. GUARANTEES

7.1 Warranties/Guarantees

a. Contractor warrants and represents that all goods shall conform to the County’s specifications contained in the bid materials, and that any nonconforming goods shall be replaced by Contractor, at its own expense, within ___ days of delivery. In the event of a dispute as to whether goods conform to specifications, the determination of the County shall be dispositive.

b. Contractor guarantees all data and materials supplied against inferiority as to

specifications, such guarantee to be unconditional.

c.1) Contractor guarantees all workmanship and materials of the items and services furnished for a period of one (1) year after final acceptance of installation. If during the guarantee period any defects or faulty materials are found, Contractor will immediately, upon notification, replace or repair the same at its own expense, along with any damage to finishes, fixtures, equipment and furnishings damaged as a result of the defective equipment or workmanship.

c.2) If guarantees exceeding the one year indicated above are called for on certain items

in the specifications or are provided by any manufacturer, the longer guarantees will apply.

d. Contractor will, within reason, service its products following the guarantee period. e. Failure to meet the requirements of this section may be cause for the County to

immediately cancel this Contract in addition to any other remedies set forth in this Contract or otherwise available in law or equity.

7.2 Warranty of Title. The Contractor guarantees full legal right to use software,

materials, supplies, equipment, machinery, articles or things involved in complying with the terms of this Contract. The contract price shall, without exception, include compensation for all royalties and costs arising from patents, trademarks, licenses, and copyrights that are, in any way, involved in the Contract. It shall be the responsibility of the Contractor to pay for all such royalties and costs. Contractor shall indemnify and save harmless the County, its officers, affiliates, and employees from all claims for infringement of patents, trademarks, licenses or copyrights arising out of or by reason of Contractor’s use or handling.

7.3 Acceptance

a.1) Services/materials/goods/equipment shall be deemed accepted by the County when, in the sole discretion of the County, the following is determined to have occurred: ________________________________________________.

a.2) Services/materials/goods/equipment shall be deemed accepted by the County when _________________________.

VIII. PAYMENT

Upon completion and acceptance by the County of the specific services under this Agreement, Consultants shall be entitled to payment of their fees in accordance with the following schedule:

Fee Mileage (.xx/mile) Reimbursable Expenses

Photocopy charges (.xx/page) Blueprint costs ($x.xx/page)

The payment provisions of a contract should identify the parties’ understanding of the total

financial amount due or payable for goods or services. The payment provisions should include

information regarding total cost and method of payment. Costs may be set at a specific figure or

identified as “not to exceed (dollar amount) ,” or may be designated by reference to

specific units of cost (e.g. dollars per specific quantity of materials or ______ dollars per

hour for services).

When considering payment provisions, you must keep in mind known costs as well as

incidental costs or expenses which may be added to a contract. For example, the total cost of a

product might have additional costs for tax or shipping. Payment for goods or materials on an

ongoing basis may be affected by a change in prices of the manufacturer, or changes in product

costs in general, which are sometimes referenced to the Consumer Price Index (“CPI”).

Contracts for services may include an additional provision providing for reimbursable

expenses such as lodging, mileage, telephone, reproduction of reports, drawings, specifications,

computer time or other charges in addition to the contract fee. Contracts for services with

noncorporate clients may also include a provision requiring Contractor to be responsible for all

state and federal wage taxes. Payment provisions should include reference to any expenses or

known charges and how, if at all, they will be reimbursed.

In addition to indicating the amounts to be paid, contracts should include provisions

regarding the frequency of payment and any documentation or event which would trigger a

payment. For example, in construction projects, architects and engineers require a percentage of

payment after the completion of specific steps in the construction document drafting process.

Other contracts provide that payment shall be made upon receipt of billings or vouchers certifying

receipt of goods or completion of tasks.

County contracts generally have a provision indicating that payment will be made pursuant

to the procedures of the County Auditor’s Department. Since the State Auditor requires certain

documentation for expenditures by counties, all auditor’s departments have specific forms or rules

for processing payments. If the County Auditor’s department requires a specific amount of time

to process a claim for payment, a contract provision should be included to indicate the necessary

time frame, so that the claimant does not attempt to collect interest for untimely payment. Note

also that unless payment terms are included in a contract, the terms and interest provisions will be

provided by Minn. Stat. § 471.425. Payment of interest on late payments is required unless the

County has a good faith dispute with the vendor. If the delay is not in good faith, the vendor may

recover costs and attorneys fees. Payment provisions can include a statement of the County’s

right to refuse payment on invoices received or postmarked more than ___ days after the date that

the services were performed.

Sample Provisions:

8. PAYMENT 8.1 Total Cost

a. The total amount to be paid by the County pursuant to this Contract shall not exceed

$____________.

b. The County shall pay to Contractor the total purchase price of $_________, which includes freight, installation and all other charges. Payment shall be made within ___________ days of delivery/installation/ (other) .

c. The County shall pay Contractor for all work and materials, subject to additions

and deletions by change orders, the sum of ________________ ($_____________). Said sum is not subject to increase in consequence of any errors Contractor may have made in estimating and bidding labor and materials required for the successful completion of the project according to the terms of the bidding documents. Any errors or misstatements Contractor may have made in the bid proposal are solely the responsibility of Contractor. Payment shall be made upon completion of the installation, and acceptance by the County.

8.2 Compensation

a. The County shall pay for purchased services __________

a.1) at the rate of $__________ per ______________.

a.2) as set out in the schedule attached as Exhibit ________.

a.3) in an amount equal to the number of actual hours of service multiplied by

the appropriate hourly rate as set out in the rate schedule attached as Exhibit ____.

a.4) as follows:

a.5) These rates include all direct services and administrative costs.

b. No Minimum Requirement - It is understood and agreed by the parties that the

County assumes no obligation to purchase from Contractor any minimum amount of ___________________________ as defined by the terms of this Contract.

c. Mileage - The County shall pay to Contractor ________ cents ($_____) per mile,

for mileage directly related to the services to be provided under this Contract.

d. Reimbursable Expenses - In addition, the County shall reimburse Contractor for actual expenses equal to the cost thereof which Contractor incurs in the performance of services directly related to this Contract.

Reimbursable expenses shall include any of the following directly related to Contractor’s obligations under the terms of this Contract:

d.1) Reasonable and necessary expense of transportation, subsistence and

lodging incurred in travel.

d.2) Expense of long-distance or toll telephone calls, telegrams, and other communications.

d.3) Expense of reproduction of reports, drawings and specifications.

d.4) Expense of computer time.

d.5) Other ________________________________.

e. Reimbursement for meals will be at the CONUS rate as established in 41 CFR

Part 301.7 and mileage at the rate set by the I.R.S. All other expenses will be reimbursed at actual cost.

8.3 Collection of Fees. Contractor agrees to cooperate fully with the County in the

collection of fees from recipients who are legally required to pay for services furnished pursuant to the terms of this Contract, including but not limited to providing accurate record keeping and being available as a witness where required in any action for collection.

8.4 Billing of Third Parties

a. Billing for all services under this Contract shall be done by Contractor first to third

parties such as insurance companies, Medical Assistance, General Assistance Medical Care, Medicare, etc. and in the event that these sources refuse to pay or pay less than full billing, then to the County Human Services Department for payment of the remaining balance, except in the case of Medical Assistance, General Assistance Medical Care, and Medicare payment shall be as set forth below.

b. Notwithstanding anything to the contrary in this Contract, Contractor shall accept

as payment in full, for services provided pursuant to this Contract, MA, GAMC, or Medicare payments by the State of Minnesota on behalf of recipients under these programs, except for recipients covered by a prepaid medical plan whose payment shall be handled pursuant to the procedures in the above paragraph.

c. In all cases where the County is not the county of financial responsibility, a separate invoice must be prepared for each county paying for an eligible client. In such cases, Contractor shall forward the invoice to the county of financial responsibility for payment. The county of financial responsibility shall make payment directly to the Contractor. The County assumes no financial responsibility to Contractor for purchased services provided to any eligible client pursuant to an agreement between Contractor and any entity other than ______ County.

8.5 Invoices

a. Contractor shall, within fifteen (15) working days following the last day of each

calendar month in which services were provided, submit an invoice and request for payment ____________________________________.

a.1) on an invoice form acceptable to the County.

a.2) on a form the same as, or similar to, that which is attached hereto as Exhibit

____.

b. Contractor shall, upon _________________, submit an invoice and request for payment.

c. Contractor shall submit invoices as each phase of the work is completed.

d. The invoice shall itemize:

d.1) the hours of services rendered listed by classification,

d.2) the date such services were provided,

d.3) a general description of the services provided,

d.4) the name of client receiving services,

d.5) the amount and type of all reimbursable expenses being charged to the

Contract,

d.6) the dates of the performance period covered by the invoice.

e. The invoice shall be based on costs for the portion or phase of the work completed.

f. The invoice shall itemize: ___________________________.

8.6 Payment Procedure a. The County shall make payment to Contractor within _____ days of the date on

which the invoice is received.

b. If the invoice is incorrect, defective, or otherwise improper, the County will notify Contractor within ten (10) days of receiving the incorrect invoice. Upon receiving the corrected invoice from Contractor, the County will make payment within thirty-five (35) days.

c. The County shall pay Contractor periodically as phases of the project are

completed, but not more than once each month.

d. Payment shall be made in accordance with the procedure and schedule set forth in Exhibit “____,” “ (title) .” which is attached.

e. The County shall pay for purchased services and/or materials as follows:

f. The County shall pay for purchased services and/or materials as follows: Ninety

percent (90%) of the cost of all work satisfactorily performed and/or all materials supplied during the course of each month shall be paid within _____ days of the date on which the invoice is received. The balance of the total contract sum shall be due and payable by the County within thirty (30) days of the satisfactory completion of all work specified above.

8.7 Late Request for Payments. The County has an absolute right to refuse payment

on invoices received or postmarked more than ninety (90) days after the date that invoiced services were performed.

8.8 Payment of Disputed Claims

a. The County may refuse to pay any claim which is not specifically authorized by

this Contract. Payment of a claim shall not preclude the County from questioning the propriety of the claim.

b. In the event that the County withholds payment for failure to provide services or

failure to comply with any of the provisions of this Contract, then no interest penalty shall accrue against the County for non-payment of disputed claims.

c. The County reserves the right to offset any overpayment or disallowance of claim by reducing future payments.

f. The COUNTY may withhold payment of the whole or part of any amount due to or

claimed by the CONTRACTOR to such extent as may be necessary to protect itself from loss on account of:

i. defective work not remedied or guarantees not met. ii. failure of the CONTRACTOR to complete any part of its work in

accordance with any permit, binding agreement or completion schedules established in or made a part of this Contract.

iii. claims filed or reasonable evidence indicating probable filing of claims. iv. damage to another contractor.

When the above reasons for withholding payment are eliminated, payment without interest shall be made for amounts withheld.

e. To prevent delays and disputes, to encourage expeditious handling of claims and to

discourage litigation, it is understood and agreed by the parties to this Contract that the COUNTY shall determine what payment is owed under the contract.

If, in the opinion of the CONTRACTOR, a decision made by the COUNTY is not in accordance with the meaning and intent of the Contract, the CONTRACTOR may file with the COUNTY within 30 days after receipt of the decision, a written objection to the decision. Failure to file an objection within the allowed time will be considered acceptance of the COUNTY’S decision and the decision shall become final and conclusive.

The COUNTY’S decision and the filing of the written objection thereto shall be a condition precedent to the right to start any legal action.

8.9 Payment Upon Early Termination

a. In the event this Contract is terminated before the completion of services, the

County shall pay the Contractor for services provided in a satisfactory manner, a sum based upon ______________________.

a.1) the actual time spent at the rates stated in (paragraph # or exhibit) .

a.2) the percentage of work completed.

a.3) A pro rata basis according to the ratio the amount of time elapsed during the

Contract term bears to the total amount agreed upon as compensation for such term.

b. In no case shall such payment exceed __________________.

b.1) the total Contract price.

b.2) the amount which would have been paid had the phase in progress been

completed.

8.10 Reasonableness of Rates

a. Contractor certifies that payment for purchased services will be in accordance with

rates of payment which do not exceed amounts reasonable and necessary to assure quality of service, and, if the services are being purchased from another public agency, the cost reasonably assignable to such services.

b. Staff time billed by the Contractor in the provision of hourly services shall be

limited to time actually and reasonably spent: 1) in direct contact with the client to assist the client in attaining the goals in the client’s individual service plan; 2) in verbal or written contact with professionals or others regarding the client’s progress in attaining the goals in the client’s individual service plan; or 3) in planning activities including attending the client’s interdisciplinary team meetings, developing goals and objectives for the client’s individual program plan, assessing and reviewing client’s goals and objectives, documenting the client’s progress toward attaining the goals and objectives in the client’s individual service plan, and assessing the adequacy of the services related to the goals and objectives in the client’s individual service plan.

c. Contractor certifies that the services to be provided under this Contract are not

otherwise available without cost to eligible clients. Contractor shall not charge a program service fee to social service eligible recipients, except in accordance with paragraph 8.3 above.

8.11 Final Payment. In accordance with Minn. Stat. § 290.97, which requires payment of withholding taxes, final payment shall not be made until a satisfactory showing is made that Contractor has complied with the provisions of Minn. Stat. § 290.92. A certificate by the Minnesota State Commissioner of Revenue will satisfy this requirement. This form is commonly referred to as Form IC-134.

This applies whenever a contract requires the employment of employees for wages by the contractor and any subcontractors.

IX. COMPLIANCE WITH LAWS/STANDARDS

The contractor agrees to comply with all federal, state and local laws,

ordinances, rules, regulations and executive orders pertaining to unlawful discrimination on account of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability or age.

When contracting for services, the County, by statute, must require the Contractor to

comply with all laws and regulations applicable to nondiscrimination in employment. In

construction contracts, it is important that local, State and Federal construction standards are met,

including standards and procedures relating to building codes, liens, permits, payments to

subcontractors and material suppliers, workers’ compensation, record keeping and tax payments.

Social Service/Human Service contracts must contain provisions required by Minn. Rules

9550.0040. Other specific standards or assurances must be tailored for the specific contract project

and needs. Carefully review all state, federal, or other grant agreements for laws or regulations

that govern the spending or sub-contracting for the spending of the funds. Federal grants such as

those for CDBG, HOME, and State Human Service, or DNR grants usually have numerous

regulatory provisions that must be included in contracts with third parties.

Sample Provisions:

9. COMPLIANCE WITH LAWS/STANDARDS

9.1 General.

a. Contractor shall abide by all Federal, State, or local laws, statutes, ordinances, rules, and regulations now in effect or hereinafter adopted pertaining to this Contract or to the facilities, programs and staff for which Contractor is responsible. This includes, but is not limited to, all Standard Assurances, which are attached as Exhibit _____.

b. (CDBG) - The project will be carried out in accordance with the CDBG regulations at 24 CFR 570, as now in effect and as may be amended, and with any other written

amendments to this Agreement; and in conformance with all laws, rules and regulations, Executive Orders, and directives as applicable to the Contractor/Subrecipient, County, or project.

9.2 Licenses

a. Contractor shall procure, at its own expense, all licenses, permits or other rights

required for the provision of services contemplated by this Contract. Contractor shall inform the County of any changes in the above within five (5) days of occurrence.

b. (Human Services) - Pursuant to Minn. Rule 9550.0040, Contractor shall provide

proof of applicable licensure or certification and an exposition of staffing, including job descriptions and professional qualifications of personnel which shall be attached to the original of this Contract on file with the County Auditor. Contractor shall inform the County of any changes in the above within five (5) days of occurrence.

9.3 Specific. The parties specifically acknowledge and agree to meet all applicable

minimum requirements and standards expressed in (cite law, program manual, etc.).

9.4 Revision of Laws

a. In the event that there is a revision of Federal, State, or local statutes, rules or other

law, which might make services provided under the terms of this Contract or any portion thereof unlawful, all parties will review the Contract and renegotiate those items necessary to bring the Contract into compliance with the new law. Refusal to renegotiate within seven (7) days of a request, so as to bring this Contract into compliance with the new law immediately (or within a reasonable time if immediate compliance is not possible) shall be cause for termination of this Contract as of the date when the Contract is out of compliance.

b. The County may, in its discretion, amend the Agreement without consent of

Contractor/subrecipient to comply with changes in federal, state or local laws, regulations, policies and available funding, or for other such reasons. Such amendments will make specific reference to this Agreement in writing.

9.5 Violations. Any violation of Federal, State, or local laws, statutes, ordinances,

rules, or regulations, as well as loss of any applicable license or certification by Contractor shall constitute a material breach of this Contract, whether or not intentional, and shall entitle the County to terminate this Contract upon delivery of written notice of termination to Contractor. Notwithstanding any other provision of this Contract, such termination shall be effective as of the date of such violation, failure or loss.

9.6 Minnesota Law to Govern. This Contract shall be governed by and construed in

accordance with the substantive and procedural laws of the State of Minnesota, without giving effect to the privileges of conflict of laws. All proceedings related to this Contract shall be venued in the State of Minnesota.

9.7 STANDARD ASSURANCES (General)

a. NON-DISCRIMINATION. During the performance of this Contract, the

Contractor shall not unlawfully discriminate against any employee or applicant for employment because of race, color, creed, religion, sex, national origin, disability, age, marital status, public assistance status, or sexual orientation. The Contractor will take affirmative action to ensure that applicants are employed and that employees are treated during employment without unlawful discrimination. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices which set forth the provisions of this nondiscrimination clause.

The Contractor will, in all solicitations or advertisements for employees placed by or on behalf of Contractor, state that all qualified applicants will receive consideration for employment without regard to race, creed, color, religion, sex, national origin, disability, marital status, public assistance status, or sexual orientation.

No funds received under this Contract shall be used to provide religious or sectarian training or services.

The Contractor shall comply with any applicable federal or state law regarding non-discrimination. The following list includes, but is not meant to limit, laws which may be applicable:

a.1) The Equal Employment Opportunity Act of 1972, as amended, 42 U.S.C. § 2000e,

et seq., which prohibits discrimination in employment because of race, color, religion, sex or national origin.

a.2) Civil Rights Act of 1964, Executive Order 11246, as amended, which is

incorporated herein by reference, and prohibits discrimination by U.S. Government contractors and subcontractors because of race, color, religion, sex or national origin.

a.3) The Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701, et seq., and 45

C.F.R. 84.3 (J) and (K) which prohibits discrimination against qualified

handicapped persons in the access to, or participation in, federally-funded services or employment.

a.4) The Age Discrimination in Employment Act of 1967, as amended, and Minn. Stat.

§ 181.81, which generally prohibit discrimination because of age.

a.5) The Equal Pay Act of 1963, as amended, 29 U.S.C. § 206, which provides that an employer may not discriminate on the basis of sex by paying employees of different sexes differently for the same work.

a.6) Minn. Stat. Section 363.03, the Minnesota Human Rights Act, as amended which

generally prohibits discrimination because of race, color, creed, religion, national origin, sex, marital status, status with regard to public assistance, disability, age or sexual orientation.

a.7) Minn. Stat. § 181.59, which prohibits discrimination against any person by reason

of race, creed, or color in any state or political subdivision contract for materials, supplies or construction. Violation of this section is a misdemeanor and any second or subsequent violation of these terms may be cause for forfeiture of all sums due under the contract.

b. DATA PRIVACY. See XXVII -1.

c. RECORDS RETENTION, AND REVIEW/AUDIT. Contractor shall keep such business records pursuant to this Agreement as would be kept by a reasonably prudent practitioner of Contractor’s profession and shall maintain such records for at least six (6) years following the termination of this Agreement. All accounting records shall be kept in accordance with generally accepted accounting practices. County shall have the right to audit and review all such documents and records at any time during Contractor’s regular business hours or upon reasonable notice. These records are subject to examination, duplication, transcription and audit by the County and either the Legislative or State Auditor pursuant to Minnesota Statute § 16C.05, subd. 5.

d. WORKER HEALTH, SAFETY AND TRAINING. Contractor shall be solely

responsible for the health and safety of its employees in connection with the work performed under this Contract. Contractor shall make arrangements to ensure the health and safety of all subcontractors and other persons who may perform work in connection with this Contract. Contractor shall ensure that all personnel of Contractor and subcontractors are properly trained and supervised and, when applicable, duly licensed or certified appropriate to the tasks the personnel are engaged in under this Contract. Contractor shall comply with the “Occupational Safety and Health Act” and the “Employee Right to Know Act,” Minn. Stat. § 182.65, et seq., where applicable.

9.9 STANDARD ASSURANCES (Human Services)

Use the Standard Assurances (General) as above except change the following:

DATA PRIVACY. For purposes of this Contract all data collected, created, received, maintained or disseminated shall be governed by the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13 and the Minnesota Rules implementing the Act now in force or hereafter adopted, as well as federal laws on data privacy. The Contractor will strictly comply with these statutes and rules. All subcontracts shall contain the same or similar data practices compliance requirements. The person employed by Contractor to assure compliance with Minn. Stat. § 13.46, subd. 10(d), shall be the authorized representative unless otherwise stated in the Contract.

Add the following STANDARD ASSURANCES (Human Services):

f. APPEALS. The Contractor shall assist the County in complying with the

provisions of Minn. Stat. § 256.045, Administrative and Judicial Review of Human Services Matters.

g. REPORTING. Contractor shall comply with the provisions of the “Child Abuse

Reporting Act,” Minn. Stat. § 626.556, as amended, and the “Vulnerable Adult Reporting Act,” Minn. Stat. § 626.557, as amended, and any rules promulgated by the Minnesota Department of Human Services, implementing such Acts.

h. MDHS THIRD-PARTY BENEFICIARY. Contractor acknowledges and agrees

that the Minnesota Department of Human Services is a third-party beneficiary and as a third-party beneficiary, is an affected party under this Contract. Contractor specifically acknowledges and agrees that the Minnesota Department of Human Services has standing to and may take any appropriate administrative action or sue Contractor for any appropriate relief in law or equity, including but not limited to, rescission, damages or specific performance of all or any part of the Contract between the County Board and Contractor. Contractor specifically acknowledges that the County Board and the Minnesota Department of Human Services are entitled to, and may recover from Contractor, reasonable attorneys’ fees and costs and disbursements associated with any action taken under this paragraph that is successfully maintained. This provision shall not be construed to limit the rights of any party to the Contract or any other third party beneficiary, nor shall it be construed as a waiver of immunity under the Eleventh Amendment to the United States Constitution or any other waiver of immunity. (Minn. Stat. § 245.466, subd. 3; Minn. R. 9525.1870, subp. 2).

i. PSYCHOTHERAPISTS. Contractor has and shall continue to comply with the

provisions of Minn. Stat. Ch. 148A, as amended, with regard to any currently or

formerly employed psychotherapists and/or applicants for psychotherapist positions.

9.10 ENVIRONMENTAL

Subgrantee agrees that it will comply with the following regulations as they apply to the performance of this Agreement:

a. Air and Water

a.1._ Clean Air Act, 42 U.S.C. 1857, et seq. a.2. Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251, et seq.,

as amended,1318, relating to inspection, monitoring, entry, reports, and information, as well as other requirements specified in said Section 114 and Section 308, and all regulations and guidelines issued thereunder.

a.3. Environmental Protection Agency (EPA) regulations pursuant to 40 CFR

Part 50, as amended. It will ensure, pursuant to Executive Order 11783, that the facilities under its ownership, lease, or supervision which will be utilized in the accomplishment of the project are not listed on the Environmental Protection Agency (EPA) list of violating facilities and that it will notify FEMA of the receipt of a communication from the Director of the EPA Office of Federal Activities indicating that a facility to be used in the project is under consideration for listing by EPA.

a.4. National Environment Policy Act of 1969 (P.L. 91-190) and Executive

Order 11514, as amended by Executive Order 11991, which promote efforts to prevent or eliminate damage to the environment and biosphere and require an Environmental Impact Statement when plans and programs may affect the quality of the environment.

a.5 HUD Environmental Review Procedures (24 CFR Part 58). b. Flood Disaster Protection b.1. Contractor/subrecipient will comply with the requirements of the Flood

Disaster Protection Act of 1973 (P.L. 2234) in regard to the sale, lease or other transfer of land acquired, cleared or improved under the terms of this Agreement, as it may apply to the provisions of this Agreement. Funds for acquisition or construction may not be used in areas identified as having special flood hazards unless contractor/subrecipient is a specific participant in the National Flood Insurance Program.

b.2. It will comply with the provisions of Executive Order 11296, relating to evaluation of flood hazards, and Executive Order 11288, relating to the prevention, control, and abatement of water pollution.

b.3. It will assist FEMA in its compliance with Executive Order 11988, Flood

Plain Management, which requires avoidance, to the extent possible, of the long- and short-term impacts associated with the occupancy and modification of flood plains and of direct or indirect support of flood plain development whenever there is a practicable alternative.

c. Lead Based Paint

Subrecipient/contractor agrees that any construction or rehabilitation of residential structures with assistance provided under this Agreement will be subject to HUD Lead-Based Paint Regulations at 24 CFR 570.608, and 24 CFR Part 35 et al. The regulations pertain to all HUD-assisted housing and require that all owners, prospective owners, and tenants of properties constructed before 1978 be properly notified that such properties may include lead-based paint. The notification will point out the hazards of lead-based paint and explain the symptoms, treatment and precautions that should be taken when dealing with lead-based paint poisoning. The Subrecipient will take all steps necessary to implement lead-hazard evaluation and reduction procedures.

d. Waste Disposal

The SUBRECIPIENT will insure compliance with the most recent Minnesota Pollution Control Agency (MPCA) waste disposal requirements and to include said disposal requirements in the project’s base bid specifications. Waste material, including but not limited to: construction/demolition debris, asbestos-containing material, residential lead paint waste, hazardous waste, aboveground and underground tanks, will be disposed of at MPCA permitted landfill sites only. Copies of all notification, shipment, and landfill receipt records will be maintained in the SUBRECIPIENT’s project file(s).

e. Historic Preservation

The SUBRECIPIENT will comply with the historic preservation requirements set forth in the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470) and the procedures set forth in 35 CAR Part 800, Advisory Council on Historic Preservation Procedures for Protection of Historic Properties, insofar as they apply to the performance of this Agreement. In general, this requires concurrence from the State Historic Preservation Officer for all rehabilitation and demolition of historic

properties that are fifty years old or older or that are included on a federal, state or local historic property list. Activities affecting property listed in or found to be eligible for inclusion in one National Register of Historic Places will be subject to the requirements of 24 CFR Part 58.

f. It will comply with the minimum wage and maximum hours provisions of

the Federal Fair Labor Standards Act (29 U.S.C. 201), as they apply to employees of institutions of higher education, hospitals, and other nonprofit organizations.

g. It will comply with requirements of the provisions of the Uniform

Relocation Assistance and Real Property Acquisitions Act of 1970 (P.L. 91-646; 42 U.S.C. 4601 et seq.), which provides for fair and equitable treatment of persons displaced as a result of federal and federally assisted programs.

h. It will comply with the provisions of the Hatch Act, which limits the

political activity of employees.

i. It will comply with all requirements imposed by FEMA concerning special requirements of law, program requirements, and other administrative requirements approved in accordance with A-102.

If any program or subprogram, work product or sub-project of this project involves construction, land acquisition or land development, the Applicant for itself and its sub-grantees also assures and certifies that:

j. It will have sufficient funds available to meet the nonfederal share of the

cost for construction projects. Sufficient funds will be available when construction is completed to assure effective operation and maintenance of the facility for the purposes constructed.

k.. It will obtain approval by the appropriate federal agency of the final

working drawings and specifications before the project is advertised or placed on the market for bidding; that it will construct the project, or cause it to be constructed, to final completion in accordance with the application and approved plans and specifications; that it will submit to the appropriate federal agency for prior approval changes that alter the costs of the project, use of space, or functional layout; that it will not enter into a construction contract(s) for the project or undertake other activities until the conditions of the construction grant program(s) have been met.

l. It will provide and maintain competent and adequate architectural

engineering supervision and inspection at the construction site to insure that

the completed work conforms with the approved plans and specifications; that it will furnish progress reports and such other information as the federal grantor agency may require.

m. It will operate and maintain the facility in accordance with the minimum

standards as may be required or prescribed by the applicable federal, state, and local agencies for the maintenance and operation of such facilities.

n. It will require the facility to be designed to comply with the “American

Standard Specifications for Making Buildings and Facilities Accessible to, and Usable by, the Physically Handicapped,” Number A117.1-1961, as modified (41 C.F.R. 101-17.703). The Applicant will be responsible for conducting inspections to insure compliance with these specifications by the Contractor.

o. It will cause work on the project to be commenced within a reasonable time

after receipt of notification from the approving federal agency that funds have been approved and that the project will be prosecuted to completion with reasonable diligence.

p. It will not dispose of or encumber its title or other interests in the site and

facilities during the period of federal interest or while the government holds bonds, whichever is the longer.

q. As a further provision of assurances above regarding Title VI of the Civil

Rights Act of 1964, if any real property or structure thereon is provided or improved with the aid of federal financial assistance extended to the Applicant, this assurance shall obligate the Applicant, or in the case of any transfer of such property, any transferee, for the period during which the real property or structure is used for a purpose for which the federal financial assistance is extended or for another purpose involving the provision of similar services or benefits.

r. In making sub-grants with nonprofit institutions under this Comprehensive

Cooperative Agreement, it agrees that such grants will be subject to Office of Management and Budget Circular A-122, “Cost Principles for Nonprofit Organizations” including, but not limited to, the “Lobbying Revision” published in Vol. 49 Federal Register, pp. 18260 through 18277 (April 26, 1984).

s. It will comply with the provisions of Executive Order 11246 of

September 24, 1965, as amended, and with the rules, regulations and relevant orders of the Secretary of Labor to the end that no contractor will discriminate against any employee or applicant for employment on the grounds of face, color, religion, sex or national origin; and that contractors

will take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to their race, color, religion, sex or national origin. In further fulfillment of this assurance, the applicant will assure that all contractors will include the appropriate equal opportunity clause as set forth in CPG 1-32 pursuant to Executive Order 11246 in every subcontract or purchase order unless exempted by rules, regulations or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246, so that such provisions will be binding upon each subcontractor or vendor.

9.11 VOTER REGISTRATION

Using forms provided by the Office of the Secretary of State, Contractor shall provide non-partisan voter registration services and assistance to program participants, the public and others as required by Minn. Stat. § 201.162.

X. BONDS

Contractor shall maintain at all times during the term of this Agreement a performance bond in the amount of $_______ covering the Contractor’s performance obligations and payment of labor and materials.

Two statutes identify the circumstances under which County contracts are subject to bond

requirements: Minn. Stat. § 375.21 (Contractors) and Minn. Stat. § 574.26 (Contractors’ Bonds).

The type of bond required under either statute is often characterized as a performance or payment

bond in which the surety agrees to complete or pay for the cost of completion of a contract if the

Contractor defaults. Minnesota Statutes § 574.26 refers to a bond in the amount not less than the

contract price. Minnesota Statutes § 375.21 requires a “sufficient bond.”

Because the statutes mandating bonds do not clearly differentiate between “payment” and

“performance” bonds, to avoid any confusion, a public entity should require bonds that

specifically state that the contractor is insuring for both “payment” of materials and labor and

“performance” of the project. See Green Electric Systems, Inc. v. Metropolitan Airports

Commission, 486 N.W.2d 819 (Minn. App. 1992). You should also review special legislation for

any other bonding requirements specific to the type of project under contract.

Pursuant to Minn. Stat. § 375.21, a contract for work or labor or for the construction or

repair of roads, bridges, or buildings must include a sufficient bond from the Contractor to the

board to insure the faithful performance of the contract. Every contract made without compliance

with Minn. Stat. § 375.21 is void.

Minnesota Statutes § 375.21 applies to County contracts which meet the dollar threshold of

required advertisement for bidding, found in Minn. Stat. § 471.345. Advertising for bids is

required under Minn. Stat. § 471.345, where the contract is estimated to exceed $50,000 for

purchase of goods or $60,000 for rental of equipment. An exception exists under Minn. Stat. §

471.345 for contracts involving repairs and maintenance of ditches, for which bids are not required

if the estimated amount of the contract does not exceed the amount specified in Minn. Stat.

§103E.705, subdivisions 5, 6, and 7. Minn. Stat. § 400.04 exempts certain solid waste

management contract from bid requirements.

Minnesota Statutes § 574.26 requires a contractor to give bond to the State or other public

body on contracts for the doing of any “public work.” “Public work” is not defined in the statute

but has been interpreted to include school districts contracting for bus transportation services, Op.

Atty. Genl., 401-B-7, June 14,1977, Septran, Inc. v. Indep. School Dist. No. 271, Bloomington,

Minn. App.1996, 555 N.W.2d 915, review denied; a county board contract for the preparation of

tract index of records in the office of register of deeds, Op. Atty. Genl., 373-B-23, Sept. 12, 1951;

garbage collection contract with city, Op. Atty. Genl., 401-B-7, Aug.5,1954; and airport

commission’s contract with marketing company for installation, placement and maintenance of

commercial advertising at airport, Green Elec. Systems, Inc. v. Metropolitan Airports Com’n,

App. 1992, 486 N.W.2d 819, reviewed denied. This statute does not apply to state forestry

development-related contracts under Minn. Stat. §§ 574.263 or 574.264 or to those contracts not

exceeding $75,000.

The bond under Minn. Stat. § 574.26 must be conditioned to ensure:

1. The payment of claims of such work, skill, tools, machinery, materials, insurance

premiums, equipment, taxes incurred under Minn. Stat. § 290.92, Ch. 268, or

Ch. 297A, and supplies for the completion of the contract;

2. Saving the obligee harmless from all costs and charges that may accrue on account

of completing the specified work;

3. Enforcing the terms of the bond; and

4. The compliance with the law appertaining thereto.

Several different sections of Minn. Stat. Ch. 574 (e.g. Minn. Stat. §§ 574.261, 574.264)

allow security in lieu of bond for certain state contracts. Also, Minnesota Statutes § 574.38 and

574.261, subd. 1 a provide that whenever this chapter or other law or home rule charter requires a

performance bond from a contractor doing a public work project under $50,000, contractor may be

permitted to provide, in lieu of the bond, an irrevocable bank letter of credit in the same amount

required for the bond and subject to the same conditions as the bond.

Sample Provisions:

10. BONDS 10.1 Bonds Required. Contemporaneous with the execution of this Contract,

Contractor agrees to provide payment and performance bonds for the County in accordance with the requirements of Minn. Stat.

a. § 375.21

b. § 574.26

and in an amount equal to or greater than the Contract amount. Said bonds shall guarantee the faithful performance of all obligations required of Contractor under the terms of this Contract, including payment of labor and materials.

10.2 Fidelity Bond. Contractor shall obtain and maintain throughout the term of this

Contract, a fidelity bond in an amount not less than $______ covering the activities of each person authorized to receive or distribute monies.

XI. PREVAILING WAGE

Pursuant to Minn. Stat. § 177.41, it is the policy of the State of Minnesota that wages of

laborers, workers, and mechanics on projects financed in full or in part by state funds be

comparable to wages paid for similar work in the community as a whole. “Project” is defined as

erection, construction, remodeling, or repairing of a public building or other public work financed

in whole or in part by state funds. “Prevailing wage rate” means the hourly basic rate of pay plus

the contribution for health and welfare benefits, vacation benefits, pension benefits, and economic

benefits paid to the largest number of workers engaged in the same class of labor within an area.

The Minnesota Prevailing Wage Law is modeled on the federal Davis-Bacon Act, 40

U.S.C. § 276A, et seq., (1987). The purpose of the federal act is to protect employees from

substandard earnings by fixing the floor on wages on government projects. Both the federal and

state laws make a strong public statement that prevailing wage rates are to be paid to obtain the

highest quality of labor available for the construction of public buildings and highways. It is a

misdemeanor for an officer or employee of the State to execute a contract without complying with

the act (Minn. Stat. § 177.43, subd. 5). Prevailing wage rates are set by the Commissioner of the

Department of Labor and Industry.

The question of whether a contract comes within the Prevailing Wage Law is a question of

law. You should be aware that not all activities related to construction are covered by the

Prevailing Wage Law. In C & C Teletronics, Inc. v. U.S. West Information Systems, 414 N.W.2d

758 (Minn. App. 1987), the court held that a subcontractor installing telephone wiring which

involved no building construction was not engaged in activities requiring application of the

Prevailing Wage Law.

Some Counties require payment of prevailing wage rates for construction or other

contracts paid for with County funds. Minn. Stat. § 471.345, subd.7 specifically provides that

nothing in § 471.345, the Municipal Contracting Law, prohibits any municipality from

establishing the prevailing wage rate as defined in §177.42 as a minimum standard for wages for a

contractor’s employees which must be agreed to by any contractor before it can be awarded a

contract for the furnishing of an labor, material, supplies, or service.

A county may also establish a “Living Wage” requirement which should be included in

affected contracts such as agreements for business subsidies or other economic development

programs or even labor, material, supply or service contracts.

There are other statutes that may also require payment of prevailing wage to contractors

such as Minn. Stat. § 116J.871, related to economic development, and Minn. Stat. § 119A.46, Lead

Abatement Program. Since financial assistance programs come and go, it is important to

carefully review any grant documents that are related to the contract being drafted as well as any

related statutes.

Sample Provisions:

11. PREVAILING WAGE

11.1 Contractor shall compensate employees at the prevailing wage rate for similarly situated employees. Documentation of wages may be required and payroll records must be maintained.

11.2 Laborers and mechanics working at a project site during construction, installation,

remodeling, and repairs, or receiving employment and training services for which financial assistance as defined by Minn. Stat. § 116J.871, subd. 1(c) is provided by the State shall be paid the prevailing wage as defined by Minn. Stat. § 177.42, subd. 6. [Financial assistance includes grants, loans, and tax abatement to a person engaged in the manufacture or sale of goods and services.]

11.3 Swab team workers engaged in swab team services provided pursuant to this agreement must receive monetary compensation equal to the prevailing wage as defined in section 177.42, subd. 6 for comparable jobs in the contractor’s principal business. [This applies to lead abatement programs established under Minn. Stat. § 119A.46.]

11.4 Youth employment training programs funded by the State pursuant to Minn. Stat.

§ 268.362 shall pay participants a subsidy or stipend that reflects prevailing wage and benefits standards appropriate for pre-apprenticeship training unless a participant’s public assistance is affected.

11.5 Contractor/grantee shall pay employees the prevailing wage rate as required by

County Board Resolution No.________, dated________.

XII. INDEPENDENT CONTRACTOR STATUS

Contractor is to be and shall remain an independent contractor with respect to any and all work performed under this Contract.

It is agreed that nothing herein contained is intended or should be construed

in any manner as creating or establishing the relationship of agents, partners, joint venturers or associates between the parties hereto or as constituting Contractor as the employee of the County for any purpose or in any manner whatsoever.

The traditional factors used to determine whether an employment relationship exists are:

(1) the right to control the means and manner of performance; (2) the mode of payment; (3) the

furnishing of material or tools; (4) the control of the premises where the work is done; and (5) the

right of the employer to discharge. Neve v. Austin Daily Herald, 552 N.W.2d 45 (Ct. App. 1996)

citing Guhlke v. Roberts Truck Lines, 268 Minn. 141, 143, 128 N.W.2d 324, 326 (1964).

Because of the various statutory obligations that arise between an employer and employee, it is

important to ensure that individuals performing work for the County are specifically designated as

independent contractors for all purposes, including but not limited to, liability for workers’

compensation, unemployment compensation, and indemnification for third-party claims. It is

also important to include in writing that the contractor will provide its own equipment, hire its own

workers and be responsible for withholding their taxes and paying all other employment tax

obligations, maintain insurance as appropriate to the activity, and pay its own taxes. It is also

helpful to include a statement to the effect that the contractor will determine and be responsible for

how it performs the services, and will incur liability for failure to complete a job or terminate the

relationship without some required notice.

The Minnesota Commissioner of Economic Security which administers the Minnesota

Unemployment Program has promulgated rules for determining whether an individual is an

employee or an independent contractor. See Minn. Stat. Ch. 268 and Minn. Rule 3315.0555.

The Internal Revenue Service, for tax purposes, provides the following guidelines to

differentiate between an independent contractor and an employee:

Independent Contractor

Engages own assistants Sets own hours May work for others Is paid by the specific job Offers services to the general public Furnishes own tools Can earn a profit or have a loss Establishes the order and sequence of work May perform the work elsewhere

Employee Relationship is ongoing Follows instructions Works for one employer Can be fired May quit without any liability Receives reimbursement for expenses Is trained by employer Is an integrated part of the business’s overall operations

Sample Provisions:

12. INDEPENDENT CONTRACTOR STATUS

a. That at all times and for all purposes hereunder, Contractor shall be an independent contractor and is not an employee of the County for any purpose. No statement contained in this Agreement shall be construed so as to find Contractor to be an employee of the County, and Contractor shall not be entitled to any of the rights, privileges, or benefits of employees of the County of St. Louis, including, but not limited to, workers’ compensation, health/death benefits, and indemnification for third-party personal injury/property damage claims;

b. Contractor acknowledges and agrees that no withholding or deduction for State or

Federal income taxes, FICA, FUTA, or otherwise, will be made from the payments due Contractor and that it is Contractor’s sole obligation to comply with the applicable provisions of all Federal and State tax laws;

c. Contractor shall at all times be free to exercise initiative, judgment and discretion

as to how to best perform or provide services identified herein; d. Contractor is responsible for hiring sufficient workers to perform the

services/duties required by this contract, withholding their taxes, and paying all other employment tax obligations on their behalf;

XIII. INDEMNIFICATION

Except for liability resulting from Lessor’s sole negligence, Lessee agrees to indemnify and save harmless Lessor, its employees, agents and servants from any and all liability for injuries to any person or property of any employee, agent, passenger, invitee or other person entering onto the leased premises.

Indemnification is a restitution action for recovery of payments made by one party to

satisfy an obligation of another party. Indemnification applies only where an identical duty owed

by one party is discharged on that party’s behalf by another party. Indemnity is an equitable

doctrine which seeks reimbursement to prevent unjust enrichment to another party.

Indemnity provisions are strictly construed against the party who seeks to be indemnified.

Unless contractual language is specific and there is an equitable basis to uphold indemnity, a tort

feasor will not be entitled to seek indemnity from another party for his own negligence. See Oster

v. Medtronic, Inc., 428 N.W.2d 116 (Minn. App. 1988); Bogatzki v. Hoffman, 430 N.W.2d 841

(Minn. App. 1988; National Hydro Systems v. M.A. Mortenson Co., 529 N.W.2d 690 (Minn.

1995).

Indemnity should not be confused with contribution, although both are variant remedies

used to secure restitution. Contribution is an attempt to recover a pro rata portion of damages

from another party who is commonly liable. Contribution exists where both parties have a

percentage of liability or fault; indemnification exists where one party is fully liable for damages.

In the event that a claim for indemnification is contemplated, the party seeking

indemnification should give notice to the other party as soon as possible so that the party who may

ultimately have to make payment will be immediately involved in any negotiation, settlements, or

litigation. Technically, however, the duty to indemnify does not occur until the liability is known.

Since there is no common law right to attorneys’ fees, in order to seek reimbursement for such fees

there must be a contractual provision requiring reimbursement associated with costs of pursuing an

indemnification right.

Sample Provisions:

13. INDEMNIFICATION 13.1 Indemnification. Any and all claims that arise or may arise against Contractor, its

agents, servants or employees as a consequence of any act or omission on the part of Contractor or its agents, servants, or employees while engaged in the performance of the Contract shall in no way be the obligation or responsibility of the County. Contractor shall indemnify, hold harmless and defend the County, its officers and employees against any and all liability, loss, costs, damages, expenses, claims or actions, including attorney’s fees which the County, its officers or employees may hereafter sustain, incur or be required to pay, arising out of or by reason of any act or omission of Contractor, its agents, servants or employees, in the execution, performance, or failure to adequately perform Contractor’s obligations pursuant to this Contract.

13.2 Mutual Indemnification

a. Each party shall be liable for its own acts to the extent provided by law and hereby

agrees to indemnify, hold harmless and defend the other, its officers and employees against any and all liability, loss, costs, damages, expenses, claims or actions, including attorney’s fees which the other, its officers and employees may hereafter sustain, incur or be required to pay, arising out of or by reason of any act or omission of the party, its agents, servants or employees, in the execution, performance, or failure to adequately perform its obligations pursuant to this Contract.

b. It is understood and agreed that the County’s liability shall be limited by the

provisions of Minn. Stat. Ch. 466 (Tort Liability, Political Subdivisions) or other applicable law.

13.3 Indemnification [Human Services]. Contractor shall indemnify, hold harmless and defend the County, its officers, agents and employees against any and all liability, loss, costs, damages, expenses, claims or actions, including attorney’s fees which the County, its officers, agents and employees may hereafter sustain, incur or be required to pay, arising out of or by reason of:

A) Any negligent or willful act or omission of Contractor, its agents, servants or employees, in the execution, performance, or failure to adequately perform Contractor’s obligations pursuant to this Contract which causes bodily injury, death, personal injury, property loss or damage to another; or

B) Bodily or personal injury, death, or property loss or damage to any applicant or eligible recipient either while participating in or receiving the care and services to be furnished under this Contract, or while on premises owned, leased, or operated by Contractor, or while being transported to or from said premises in any vehicle owned, operated, leased, chartered, or otherwise contracted for by Contractor or any officer, agent, or employee thereof; or

C) Any applicant or eligible recipient causing injury to, or damage to the property of another person during any time when Contractor or any officer, agent, or employee thereof has undertaken or is furnishing the care and services called for under this Contract; or

D) Any claim or cause of action in equity or for damages arising out of employment or alleged employment by Contractor or discrimination in Contractor’s employment practices.

13.4 Liability [Municipalities]

a. Each party to this Contract shall be liable for its own acts 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.

b. Liability of the County or other Minnesota political subdivisions shall be governed

by the provisions of the Municipal Tort Claims Act, Minn. Stat. Ch. 466, and other applicable laws.

c. The State’s liability shall be governed by the provisions of the Minnesota Tort

Claims Act, Minn. Stat. § 3.732 et. seq.

13.5 Waiver of Liability. It is further agreed that participation in (activity) is voluntary and at the sole risk of the [Contractor/Participant/Applicant for Permit or License] and [Contractor/Participant/Applicant for Permit or License] hereby expressly forever releases ______ County from any claims, demands, injuries, damages, actions or causes of action whatsoever for any acts of active or passive negligence on the part of the County, its servants, agents, employees, and officers arising out of or connected with (activity) or the site where the same is occurring.

13.6 Construction Indemnification.

The contractor shall indemnify and hold harmless the owner, the architect, and the construction manager and their agents and employees from and against all claims, damages, losses, and expenses, including attorneys’ fees, arising out of or resulting from the performance of the work, provided that any such claim, damage, loss, or expense (1) 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, and (2) is caused in whole or in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder.

13.7 Owner/Contractor/Subcontractor Indemnification.

The Contractor shall indemnify and save the owner, its officers, agents, and representatives harmless from losses, damages, suits, or claims arising out of and on account of any injury or damage to persons or property on or about and in connection with the work, however the same may occur, provided that said injury or damage arises from or is incidental to the performance of work on behalf of the owner whether said work is commenced pursuant to written contract, purchase order, or oral authorization to be confirmed later in writing. This indemnification obligation shall not be limited in any way by the insurance coverages required under this contract.

See Matthews v. Minnesota Power & Light, (C8-89-1683, March 20, 1990, unpublished).

13.8 Nonwaiver of Rights

Nothing in this contract shall constitute a waiver by the County of any statute of limitations or exceptions on liability.

XIV. INSURANCE

Contractor agrees, that in order to protect itself and the County under the indemnity provisions set forth above, it will at all times during the term of this Contract keep in force policies of insurance as indicated in paragraph ____. Contractor shall not commence work until a Certificate of Insurance covering all of the insurance required by these specifications is approved and a Notice to Proceed has been issued by the project manager.

In reviewing the risks of liability or loss inherent in a contract, the type of insurance carried

by the parties, the amount of coverage, and any exclusions should be known and noted in the

contract language. The provisions requiring indemnification are usually only as good as the

amount of insurance or assets available for recovery in the event of a claim.

The amount and type of insurance necessary for a contract is dependent upon the facts of

each case. At a minimum, the insurance should provide coverage for the Contractor’s employees

(to alleviate any claim that the Contractor’s staff are employees of the County), automobile

insurance, and general liability insurance in amounts no less than the County’s liability limits

under Minn. Stat. Ch. 466 (Tort Liability, Political Subdivisions). The contract should also

specify what endorsements are required on the general liability policy. In addition to general

liability insurance, a Contractor should provide a fidelity bond if monies will be directly paid to the

Contractor for the benefit of other parties. At the very least, insurance provisions should require

minimal insurance with a notification provision indicating that the policy cannot be cancelled or

materially changed without prior notice to the County.

The County may or may not want to be named as an additional insured on the Contractor’s

insurance policy. The Contractor’s insurance policy would provide liability protection in the

event the County is named as a co-defendant in litigation. If, however, there is a greater

likelihood that instead of being named a co-defendant the County would commence an action

against the Contractor, the County should not be an additional insured on liability policies. Being

co-insureds, the collection of a judgment may be difficult since an insurance company will

generally not pay for damages of an insured which are caused by a second insured.

Sample Provisions:

14. INSURANCE REQUIREMENTS 14.1 The following insurance must be maintained for the duration of this contract. A Certificate of Insurance for each policy must be on file with the St. Louis County Purchasing Department within 10 days of execution of this contract and prior to commencement of any work under this contract. Each certificate must include a 10-day notice of cancellation, non-renewal, or material change to all named and additional insureds. The County reserves the right to rescind any contract not in compliance with these requirements and retains all rights thereafter to pursue any legal remedies against Contractor. All insurance policies shall be open to inspection by the County, and copies of policies shall be submitted to the County upon written request. All subcontractors shall provide evidence of similar coverage. 1. General Liability Insurance. $500,000 for claims for wrongful death and each claimant for other claims. $1,500,000 each occurrence for claims. No Less Than $2,000,000 Aggregate coverage. Policy shall include at least premises, operations, completed operations, independent contractors and subcontractors and contractual liability and environmental liability. St. Louis County must be named additional insured. [optional] 2. Business Automobile Liability Insurance. $500,000 for claims for wrongful death and each claimant for other claims. $1,500,000 each occurrence. Must cover owned, non-owned and hired vehicles.

3. Professional Liability Insurance. Contractor shall maintain at its sole expense a valid policy of insurance covering professional liability, arising from the acts or omissions of Contractor, its agents and employees in the amount of not less than $500,000 per claim and $2,000,000 annual aggregate. 4. Workers Compensation. Per statutory requirements. Certificate of Compliance must be executed and filed with St. Louis County.

14.2 Inability to Obtain Coverage. If Contractor is unable to obtain coverage as required prior

to the commencement of the contract, or if coverage is not renewed during the term of this contract, or if coverage is cancelled during the term of this contract, Contractor shall immediately make good faith efforts to obtain or replace the insurance coverage required through the open market. If such efforts are unsuccessful, the Contractor shall immediately apply to the Minnesota Joint Underwriting Association and Marketing Assistance Plan (MJUA) for insurance coverage certifying that it has been unsuccessful in obtaining the insurance coverage sought.

Coverage obtained from MJUA pursuant to this paragraph shall be deemed adequate to fulfill the requirements of this Article, notwithstanding provisions to the contrary.

14.3 Failure to Provide Proof of Insurance. The County, through the Department, may

withhold payments for failure of Contractor to furnish proof of insurance coverage or to comply with the insurance requirements as stated above.

14.4 Cross Liability Endorsement. It is agreed that the inclusion of more than one insured

under the policies for this project shall not affect the right of any insured as respects any claim, suit, or judgment made or brought by or for any other insured or by or for any employee of any other insured. This policy shall protect each insured in the same manner as though a separate policy had been issued to each, except that nothing herein shall operate to increase the company’s liability beyond the policy limits.

The following may be included in bid or RFP specifications: 14.5 Additional Insurance. Nothing contained herein shall preclude the county from

determining and demanding, in specified cases, that in addition to the minimum required insurance coverage required by the provisions of these specifications, additional insurance be obtained by the Contractor and proof thereof furnished to

the county and such additional insurance as may be demanded by the county shall be in addition to and not in lieu of the insurance hereinabove required.

XV. SUBCONTRACTING/ASSIGNMENT

Contractor shall not enter into any subcontract for performance of any services contemplated under this Contract nor assign any interest in the Contract without the prior written approval of the County and subject to such conditions and provisions as the County may deem necessary. The Contractor shall be responsible for the performance of all subcontractors.

Most contracts routinely carry a provision prohibiting subcontracting of work without

consent of the parties. The purpose of this provision is to ensure that the parties who negotiated

the agreement continue to perform the services or duties as requested. In the event of a

subcontract, it is imperative that the County review the proposed substitute and hold the new

subcontractor to all the provisions previously agreed to by the parties. Subcontractor’s insurance

coverage, ability to do the work, compliance with nondiscrimination laws, and work performance

should be reviewed before providing a consent to change.

Sample Provisions:

15. SUBCONTRACTING/ASSIGNMENT 15.1 Subcontracting

a. Parties shall not enter into any subcontract for the performance of the services

contemplated under this Contract nor assign any interest in the Contract without prior written consent of all parties and subject to such conditions and provisions as are deemed necessary.

b. This limitation shall not apply to ____________.

c. Any agreement between the Contractor and any subcontractor shall obligate the

subcontractor to comply with the general terms of this Contract.

d. The subcontracting or assigning party shall be responsible for the performance of its subcontractors or assignees and their compliance with the Contract terms.

e. Contractor shall provide all services required hereunder by and through its own employees. Contractor shall not provide any services hereunder by means of subcontracts with individuals or entities not regularly employed by Contractor without the prior written consent of the County.

XVI. DEFAULT

If Contractor fails to perform any of the provisions of this Contract or so fails to administer the work as to endanger the performance of the Contract, this shall constitute default.

A default in a contract is the failure of one party to perform certain obligations under the

contract. A default may be caused by circumstances beyond the control of the Contractor (e.g.

labor strikes, weather conditions); because of the Contractor’s error (e.g. insufficient staff or

equipment to make timely delivery of services or products); or other failure to adequately perform.

Whether or not failure to perform is a major violation of a contract or a minor violation, the

defaulting party must be given notice of the alleged default and should be given notice of the

penalties that will apply. Unless otherwise agreed to, the defaulting party shall have an

opportunity to cure the default before having the contract declared terminated by law or by the

nondefaulting party.

The necessity or complexity of default provisions is dependent upon the facts of each

contract. Short term contracts which involve services or products which are readily available in

the market may not require default provisions, since failure of the Contractor to act may cause little

or no detriment to the County. However, long term contracts, contracts for construction, or

contracts for the purchase of large or expensive quantities of materials or equipment which may be

subject to change in price over a period of time should incorporate default provisions, including a

listing of the types of damages that will be sought in the event of default.

Sample Provisions:

16. DEFAULT

16.1 Force Majeure

a. Neither party shall be held responsible for delay or failure to perform when such delay or failure is due to any of the following uncontrollable circumstances unless the act or occurrence could have been foreseen and reasonable action could have been taken to prevent the delay or failure: fire, flood, epidemic, strikes, wars, acts of God, unusually severe weather, acts of public authorities, or delays or defaults caused by public carriers; provided the defaulting party gives notice as soon as possible to the other party of the inability to perform.

b.1) The County and the Contractor agree to attempt to resolve quickly all matters

related to uncontrollable circumstances and use all reasonable efforts to mitigate its effects.

b.2) If a matter arising under this paragraph is unable to be resolved within ____ days,

the nondefaulting party may terminate this Contract upon ten (10) days written notice.

16.2 Inability to Perform. Contractor shall make every reasonable effort to maintain

staff, facilities, and equipment to deliver the services to be purchased by the County. Contractor shall immediately notify the County in writing whenever it is unable to, or reasonably believes it is going to be unable to, provide the agreed upon quality and quantity of services. Upon such notification, the County shall determine whether such inability requires a modification or cancellation of this Contract.

16.3 Changes in Policy or Staff. The County reserves the right to terminate this Contract on ten (10) days written notice if the County, in its sole discretion, does not approve of proposed or actual significant changes in Contractor’s policy or staff.

16.4 Failure to Perform. The County may, by written notice to Contractor, immediately

terminate this Contract in any of the following circumstances: [examples - failure to deliver, failure to meet specifications, failure to correct deficiencies within 72 hours of notice, failure to provide Performance Bond, failure to provide a final report and completed plan by _________________.]

16.5 Default by Contractor. Unless cured or excused by the occurrence of an uncontrollable circumstance or County waiver of default, each of the following shall constitute default on the part of the Contractor:

a. The written admission by the Contractor that it is bankrupt; or filing by the

Contractor of a voluntary petition under the Federal Bankruptcy Act; or the filing of an involuntary petition under the Federal Bankruptcy Act against the Contractor unless dismissed within ninety (90) days. The Notice of Default and cure provisions of this Contract do not apply to this paragraph.

b. The making of any arrangement with or for the benefit of Contractor’s creditors

involving an assignment to a trustee, receiver or similar fiduciary. The Notice of Default and cure provisions of this Contract do not apply to this paragraph.

c. Making material misrepresentations either in the attached exhibits and documents

or in any other material provision or condition relied upon in the making of this Contract.

d. A court of competent jurisdiction finds that the Contractor persistently disregards

laws, ordinances, rules, regulations or orders of any public authority having jurisdiction.

e. Failure to make satisfactory progress towards completion of this Contract.

f. Failure to perform any other material provision of this Contract.

16.6 Default by the County. Unless cured or excused by the occurrence of an uncontrollable circumstance or default of the Contractor, each of the following shall constitute a default on the part of the County:

a. The persistent or repeated failure or refusal by the County to pay or prevent

payment of any uncontested amount to the Contractor within thirty-five (35) days of the date of the billing statement.

b. Making knowing material misrepresentations either in the attached exhibits and

documents or in any other provisions or conditions relied upon in making this Contract.

c. Failure to perform any other material provision of this Contract.

d. (Road Equipment: Lease/Option to Buy Contract.) Lessee (County) making,

permitting or suffering any authorized assignment, transfer or other disposition of this Lease or any interest herein or any property or interest herein.

16.7 Written Notice of Default. Unless otherwise provided, no event shall constitute a

default giving rise to the right to terminate unless and until written Notice of Default is given to the defaulting party, specifying the particular event, series of events or failure constituting the default and the cure period.

16.8 Cure Period. If the party in default fails to cure the specified circumstances as described by the Notice of Default within ten (10) days or such other time as may be specified under the terms of this Contract, then this Contract may be terminated by written notice as stated in Article ____ below.

16.9 Withholding of Payment. Notwithstanding any other provision of this Contract

the County may, after giving Notice of Default, withhold, without penalty or interest, any payment which becomes due after Notice of Default is given, until the default is excused, waived or cured, or the Contract is terminated.

16.10 Preservation of Other Remedies. The rights and remedies of the County provided

in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under this Contract. (See also Section XVIII.)

16.11 County’s Right to Cancel. Unless the Contractor’s default is excused under the

provisions of this Contract, the County may, by written notice of default to the Contractor, cancel this Contract in any of the following circumstances, and in either of these two circumstances, if the Contractor does not cure such failure within a period of _____ days (or such longer period as the director of _________ County Department may authorize in writing) after receipt of notice from the department specifying such failure:

a. If the Contractor fails to provide services called for by this Contract within

the time specified herein or any extension thereof;

b. If the Contractor fails to perform any of the other provisions of this Contract, or so fails to prosecute the work as to endanger performance of this Contract in accordance with its terms.

16.12 Road Equipment Lease/Option (see Minn. Stat. § 373.01, subd. 2). Lessor’s

(Seller’s) Right to Cancel. Upon the occurrence of any event of default specified above, Lessor may terminate this Lease and repossess the equipment, in which event Lessee shall be liable for any amount of payments owing hereunder through the date of such termination and all costs and expenses incurred by Lessor in connection with repossession of the property. Lessor’s sole remedy for default shall be limited to repossession of the property.

XVII. TERMINATION

This Agreement may be terminated with or without cause by either party upon ____ days written notice.

A contract may be terminated by agreement of the parties without cause, or may be

terminated on the basis of cause as indicated in any of the provisions defining responsibilities or

duties of the parties. A contract may also be terminated by the County in the event that sufficient

funds for the specific contract are not appropriated, if such nonappropriations did not result from

any act of bad faith on the part of the County and a provision to this effect is in the contract. In the

event that a nonappropriation clause is included, a Contractor may insist upon additional language

which indicates that the County may not procure the same goods or services from another source

for a specific period of time.

Termination of an agreement requires notice to the parties of the intended termination and

specific dates. In addition, it is necessary for the parties to set out the final activities to be

performed upon termination. Termination provisions can include such requirements as having a

Contractor fully clean and secure a contract site (e.g. construction site, building where an activity

occurred, or office). The Contractor may be required to provide originals or copies of documents

created during the contract period. The Contractor may be required to give notice to the public or

other parties regarding the termination of the contract or contract services, so that there is not any

detriment to third parties who have relied upon the contract. The Contractor may also be required

to provide a final accounting of funds, books, records, final hours worked, or a detailed summary

of final billings for payment.

Sample Provisions:

17. TERMINATION 17.1 With or Without Cause. This Contract may be terminated with or without cause,

by the County upon _________ (___) days written notice.

17.2 The County may terminate this Agreement, in whole or in part, if the contractor materially fails to comply with any term of the Agreement, or if reasonable progress has not been made by the Contractor in accomplishing the purposes of this Agreement, with ten days written notice to the Contractor.

17.3 In the event of any termination all unspent grant funds held by the Contractor will

be returned to the County. All finished or unfinished documents, data, studies, surveys, maps,, models, photographs, reports or other materials prepared by the Contractor under this Agreement will, at the option of the County, become the property of the County.

17.4 Nonappropriation. Notwithstanding any provision of this Contract to the contrary,

this Contract may be terminated by either party in the event sufficient funds from the County, State, Federal or other sources are not appropriated, obtained and continued at least at the level relied on for the performance of this Contract; and the nonappropriation of funds did not result from any act of bad faith on the part of the County. If the Contract is terminated pursuant to this paragraph the County shall not thereafter purchase similar services from another vendor as were being provided by Contractor, for the duration of the full original term of this Contract or the end of the County’s fiscal year, whichever is less.

17.5 Written Notice of Termination. Notice of Termination shall be made by certified mail or personal delivery. Notice is deemed effective upon delivery to the party’s Authorized Representative.

17.6 Duration. The term of this Lease shall commence as of ________________,

20___, and continue in effect thereafter for a period of five years from the date hereof and shall be automatically renewed on a month to month basis under the same terms and conditions at option of Lessee until terminated. This Lease shall terminate upon its expiration, by operation of law, or upon non-use of the property by Lessee for a period of three months.

In the event of termination, Lessee shall peaceably leave the premises and shall, at its own expense, remove all ashes, dirt, rubbish and refuse and shall insure that the leased premises are in reasonable repair and securely locked. Upon Lessee’s failure to do so, Lessor may immediately, without further notice to Lessee, do the same at Lessee’s expense which Lessee shall immediately pay upon receipt of a bill.

17.7 Effect of Termination. Termination of this Contract 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 Contract prior to the effective date of termination. Nor shall termination discharge any obligation which by its nature would survive after the date of termination, including by way of illustration only and not limitation, Standard Assurances attached hereto.

17.8 Any decision to terminate will be made on behalf of the County by the

County who will execute any agreement or notice to terminate.

XVIII. CONTRACT RIGHTS/REMEDIES

Rights Cumulative. All remedies available to either party under the terms of this Contract or by law are cumulative and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.

Remedies for breach of contract can be based upon common law, statutes, equity, or the

contractual provisions. Since some contract remedies are exclusive, in order to protect the

County’s right to claim any and all remedies available under a specific fact situation, a catchall

provision is generally included in major contracts to indicate that remedies are cumulative and

may be exercised concurrently or separately. A waiver provision is also included to clarify that

failure to act upon an activity which could have been defined as a breach under the agreement at a

particular time does not mean that the County waives the right to declare continuation of the

activity as a breach at a later date.

Sample Provisions:

18. CONTRACT RIGHTS/REMEDIES 18.1 Waiver

a. The waiver of any default by either party, or the failure to give notice of any

default, shall not constitute a waiver of any subsequent default or be deemed to be a failure to give such notice with respect to any subsequent default.

b. Waiver of breach of any provision of this Contract shall not be construed to be

modification of the terms of this Contract unless stated to be such in writing and signed by authorized representatives of the County and Contractor.

XIX. DAMAGES

Unless Contractor’s default is excused under the terms of this Contract the County may recover from Contractor such damages as it may have sustained by reason of additional administrative costs, expenses of re-advertising and rebidding, and other damages sustained by the County by reason of delay, price changes, loss of other contracts, loss of income, inability of the County to fulfill other contracts, loss of other benefits of this Contract, and any other damages directly or consequently arising out of this Contract or failure to perform the same by Contractor.

A breach of a contract which does not result in damages will support only recovery of

nominal damages in litigation. Although it is not necessary to list all the damage claims that are

possible, the drafter of a contract should be cognizant of the types of claims that would be made if

the contract were breached.

When there is a material breach of a contract, the party not in default may elect between

two remedies:

1. The contract may be rescinded with each party returning to the same position as if

the contract had not been made; no damages are recoverable and as a general rule

both parties must restore what they have received or the reasonable value thereof;

2. The contract can stand and a party may sue for damages, thus retaining the right to

the benefits of part performance.

Where the parties stipulate to the consequence of what will occur at a breach, that stipulation, if

reasonable, is controlling and excludes all other consequences.

Although contracting parties are free to agree to whatever terms they wish to establish their

primary rights, except within narrow limits, they are not free to determine the specific remedial

damages amount to be awarded upon breach of contract. A remedy written into a contract which

is a penalty will not be enforced. However, a liquidated damages clause, which determines the

sum of damages in advance of a breach, will be upheld if:

1. The injury caused by the breach is difficult or impossible to accurately estimate;

2. The parties intend to provide for damages rather than a penalty;

3. The sum stipulated is a reasonable pre-estimate of the probable loss.

It is generally agreed that reasonableness must be judged as of the time of contracting, rather than

as of the time of the breach. Care should be taken to specify when liquidated damages are

appropriate, since in a claim for violation of certain terms of an agreement (e.g. failure to obtain

insurance), liquidated damages may be a meaningless remedy.

Sample Provisions:

19. DAMAGES 19.1 Duty to Mitigate. Both parties shall use their best efforts to mitigate any damages

which might be suffered by reason of any event giving rise to a remedy hereunder.

19.2 Costs of Termination

a. In the event this Contract is terminated by reason of default, the nondefaulting party may recover the necessary costs of termination, including but not limited to administrative, attorney fees and legal costs, from the defaulting party.

b. Notwithstanding the above, in the event that this Contract is cancelled after an

award has been made but prior to the issuing of the Notice to Proceed, no reimbursement will be made to the Contractor for any expenses it may have accrued relative to this Contract during that period.

19.3 Set-Off. Notwithstanding any other provision of this Contract to the contrary,

upon breach of this Contract by Contractor the County may withhold any payment due Contractor for purposes of set-off until such time as the exact amount of damages due is determined.

19.4 Damages

Time is an essential element of this Contract. If Contractor fails to meet the delivery deadline as set forth above or fails to supply in accordance with the specifications, terms and conditions of the Contract documents, for any reason, excepting delays caused by uncontrollable circumstances, the County shall have the right to purchase the (equipment) (goods) (materials) from other sources on the open market or to purchase those items necessary to continue functioning until delivery from the Contractor is complete. The County may deduct as damages from any money due or coming due to the Contractor the difference between the Contractor’s price and the higher price or the cost of temporary items.

19.5 Liquidated Damages

a. Time is an essential element of the Contract. If the Contractor fails for any reason,

excepting delays caused by uncontrollable circumstances to complete installation of all items before the Contract completion date as set forth in Paragraph _____ “Delivery Schedule,” it is hereby agreed that the County shall have the right to deduct as liquidated damages from any money or monies due or coming due to the Contractor an amount equal to $________ per day for each and every calendar day after the Contract completion date during which time the Contract remains unfulfilled. Any monies deducted are not to be construed as a penalty, but as liquidated damages to compensate for the additional costs and inconvenience incurred by the County.

b.1) In any lawsuit involving the assessment or recovery of liquidated damages, the

reasonableness of the charge therefor shall be presumed.

b.2) The amount assessed shall be in addition to every other remedy now or hereinafter enforceable at law, in equity, by statute or under the Contract.

19.6 Delays and Extension of Time. It shall be understood that the Contractor will not

undertake to hold the County responsible in any manner for:

a. any damages for delays by the County.

b. for damages for delays caused by the Contractor during the Contract period. 19.7 Cost of Defense. In the event the Vendor/contractor fails to operate the facility in

compliance with all applicable local, state and federal laws, permits, rules and regulations, the Vendor/contractor shall reimburse the County for any civil or criminal penalties or costs of defense incurred due to such violations.

XX. REPRESENTATIVES

Any requests, demands, authorizations, questions or communications shall be directed to (name/title) , (address) on behalf of Lessor and to (name/title) , (address) on behalf of Lessee.

A contract may designate representatives of the parties who have authority to bind the

original parties to amendments to the agreement or who have lesser authority to serve as contact

persons during the course of the contract. When designating individuals of the County as having

authority to bind the County to future agreements under the contract, make sure that there is a

resolution of the County Board authorizing this.

Contracts written for specific departments may indicate the department head as the

representative of the County for receipt of all notices, etc. or for day-to-day contacts, receipt of

notices, communications, or questions. A contract may also have a “liaison” on behalf of the

parties. The liaison on behalf of the County may be a County employee or another individual

representing the interests of the County (e.g. construction manager, architect). Identification of

representatives should include names, addresses, titles, and telephone numbers. If a contract

designates one individual as the day-to-day representative, but another individual as the official

representative to receive notices of termination or intent to extend an agreement, the contract

should so indicate in a clear manner.

Sample Provisions:

20. REPRESENTATIVE 20.1 Authorized Representative

The following named persons are designated the Authorized Representatives of parties for purposes of this Contract. These persons have authority to bind the party they represent and to consent to modifications and subcontracts, except that,

as to the County, the Authorized Representative shall have only the authority specifically or generally granted by the County Board. Notification required to be provided pursuant to this Contract shall be provided to the following named persons and addresses unless otherwise stated in this Contract, or in a modification of this Contract.

To Contractor: To County:

Name: Name:

Title: Title:

Address: Address:

Telephone Number: Telephone Number:

FAX Number: FAX Number:

20.2 Liaison

To assist the parties in the day-to-day performance of this Contract and to develop service, ensure compliance and provide ongoing consultation, a liaison shall be designated by Contractor and the County. The parties shall keep each other continually informed, in writing, of any change in the designated liaison. At the time of execution of this Contract the following persons are the designated liaisons:

Contractor Liaison: _______________________________

Telephone Number: ______________________

County Liaison: _______________________________

Telephone Number: ______________________

XXI. CONFLICT OF INTEREST

Contractor agrees that it will not contract for or accept employment for the performance of any work or services with any individual, business, partnership, corporation, government, governmental unit, or any other organization that would create a conflict of interest in the performance of its obligations under this Contract.

A conflict of interest provision is not often used. However, if a Contractor is to do work

for the County as well as work for another entity in competition with the County, then a conflict of

interest provision may be useful. If there is some concern that the data generated under a contract

could be used by the Contractor in the future for some outside personal gain, you may want to

include a conflict of interest provision as well as a provision indicating County ownership of all

data created under the contract. (See also Section XXVIII.)

Sample Provisions:

21. CONFLICT OF INTEREST

Contractor agrees that it will not use or disclose any data or information for personal or financial gain, designated under paragraph ____ as owned by the County.

XXII. MODIFICATION/ADDENDA

Modifications. Any alterations, variations, modifications, or waivers of the provisions of this Contract shall only be valid when they have been reduced to writing, and signed by authorized representatives of the County and Contractor.

Any alterations or modifications to a contract should be reduced to writing, signed by the

parties, and attached to the original agreement. A simple correction or change in a word or short

phrase can be handled by each party initialing the change made in ink on the document. If the

modifications are extensive or significantly change a major term of the original agreement, then an

amendment or addendum should be drafted. An addendum generally adds something to the

agreement such as additional services or duties. An amendment alters an agreement by

modification, deletion, or addition of a term.

Sample Provisions:

22. AMENDMENT

WITNESSETH

WHEREAS, the County and _____________ entered into the above-referenced agreement, hereinafter called the “Contract” on January 1, 20___, for the provision of _______________ services; and

WHEREAS, the parties desire to amend the Contract so as to enable both parties to continue to enjoy the mutual benefits it provides by extending its term; and

WHEREAS, paragraph ___ of the Contract provides that any amendments shall be valid only when expressed in writing and duly signed by the parties;

NOW, THEREFORE, in consideration of the mutual covenants contained herein, and for other good and valuable consideration, the parties do agree as follows:

1. That the term in paragraph 14 of the Contract shall be amended to provide a

new Contract duration as follows:

That the term of this agreement shall be from January 1, 20___, through December 31, 20____.

2. That all other provisions of the original Contract, except as amended herein,

shall remain in full force and effect.

XXIII. SEVERABILITY

The provisions of this Contract shall be deemed severable. If any part of this Contract is rendered void, invalid, or unenforceable, such rendering shall not affect the validity and enforceability of the remainder of this Contract unless the part or parts which are void, invalid or otherwise unenforceable shall substantially impair the value of the entire Contract with respect to either party.

A severability provision is a standard clause incorporated into contracts to ensure that the

removal of one provision in an agreement will not cause the entire agreement to be declared void

or terminated.

Sample Provisions:

23. SEVERABILITY

The parties further agree to substitute for the invalid provision a valid provision that most closely approximates the economic effect and intent of the invalid provision.

XXIV. MERGER

Final Agreement. This Contract 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. There are no representations, warranties, or stipulations, either oral or written, not herein contained.

A merger provision is a standard clause in contracts which have had extensive negotiations

prior to execution of the final document. This clause should trigger the parties to review all

correspondence, writings, standards, etc., that they wish to have incorporated into the agreement

for either attachment as an exhibit or inclusion in the contract language. See also Section IV. 4.c.

Contract Documents.

Sample Provisions:

24. MERGER 24.1 Exhibits. Exhibits 1 through and including ____ are attached and incorporated

herein by reference.

XXV. DISPUTE RESOLUTION

The parties agree to submit all disputes concerning any alleged breach of the terms of this agreement to binding arbitration under the following conditions:

Resolution of disputes under a contract may be done through voluntary negotiation

between the parties, litigation, mediation, or arbitration. A contract may have a provision

providing for a specific form of dispute resolution or may be silent, in which case litigation is the

unstated alternative.

In the construction industry, arbitration following the American Arbitration Association

(AAA) rules is commonly utilized. The form agreements for the National Society of Professional

Engineers and the American Institute of Architects contain standard arbitration clauses which

utilize the AAA for dispute resolution. However, the parties to a contract may modify their

proposed resolution process as desired.

Resolution of disputes through mediation, arbitration, or litigation has positive and

negative points. Mediation is an informal arrangement for discussion of disputes with a neutral

third party. Mediation is not binding on either party and statements made during mediation may

be used as a party’s statement against interest in a further proceeding. Arbitration can be quick

and efficient or expensive for the parties. The standard format of arbitration includes each party

selecting a proposed arbitrator, with the two members thereafter selecting a third member for the

panel. The panel may charge a daily fee as well as lodging and mileage expenses. The AAA

also has a filing fee for use of their arbitration panels.

The negative side of arbitration includes the rigidity of the hearing procedure, the strictly

limited parameters of discovery, and the lack of a memorandum of decision given with an award.

Arbitration awards generally only state the final award without any indication of the Arbitrator’s

reasoning. Under AAA procedures, parties may not demand any further information from the

arbitrator. In large or complex cases clients may want and need to have the reasoning for an

award to satisfy themselves or insurance companies and are angered by the lack of basis for a

decision.

The threat of litigation may cause some claims to settle. If, in fact, full litigation is

necessary, it may or may not be the most beneficial means of settling a case since once litigation is

commenced, a party may choose to cease performing under the contract until the matter is

resolved. If the dispute concerns payment under the contract, the parties can agree to continue the

project even though litigation is commenced.

Sample Provisions:

25.1 DISPUTE RESOLUTION

a. The County and Contractor shall in good faith attempt to settle any dispute arising under this Contract. In the event that the County and the Contractor cannot resolve a dispute the matter shall be submitted to a Dispute Resolution Committee (hereinafter “DRC”) under the terms of this section. The purpose of the DRC shall be to resolve any dispute arising under the terms of this Contract, unless specifically excepted elsewhere, as expeditiously as possible so as not to impair duties, benefits and obligations arising from the terms of this Contract.

b. The DRC shall consist of three members. The County and the Contractor shall

each appoint one member. These two members, after consultation with the party who appointed them, shall together select the third member. Members shall be appointed each year and in the event any one member resigns or is otherwise unavailable.

c. Either party may, by written notice to the other and to the DRC, submit a dispute to

the DRC. The DRC shall convene within two business days of notice, or as soon as possible.

d. All proceedings before the DRC shall be informal. A party will select a person or persons to present their respective cases to the DRC. Established legal procedure and evidentiary rules may be used as a guide in conducting the proceeding. However, formal rules of evidence shall not apply to the proceeding. The proceeding shall not be open to the public.

e. The County and Contractor shall have the right of discovery regarding any matter,

not privileged by law, which is relevant to a dispute referred to the DRC. The methods of discovery shall include all recognized methods of discovery for civil court actions. Disagreements between the County and Contractor regarding the nature or extent of discovery shall be submitted to the DRC pursuant to this Article.

f. The DRC shall determine the extent to which the parties shall proceed with

carrying out the provisions of the Contract during the pendency of the dispute resolution.

g. The DRC shall render a decision upon conclusion of the proceeding as

expeditiously as possible. The decision shall be in writing. The DRC shall provide reasons for the decision in writing. In its decision, the DRC shall decide the extent to which each of the parties shall bear the reasonable cost of resolving the dispute. The decision shall be final and binding upon the parties, if in the opinion of the DRC, the total monetary impact of the decision upon either party does not exceed $100,000.00, as increased/decreased per inflation index in Exhibit _____. In the event the DRC decides that the total monetary impact of its decision upon any party equals or exceeds that amount, the DRC’s decision shall be appealable by either party to the District Court of ______ County or Federal District Court of the State of Minnesota per applicable law.

h. In the event the DRC is unable to reach a resolution of a dispute within six months

of submittal, either party may terminate this Contract by thirty (30) days written notice. Such termination shall be considered as if occurring at the end of the Contract term for purposes of remedies and options as stated in Section [ ].

25.2 Arbitration

a. All claims, counterclaims, disputes and other matters in question between

the parties hereto arising out of or relating to this Agreement or the breach thereof will be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then current, subject to the limitations and restrictions stated in paragraphs ____. This agreement to arbitrate and any other agreement or consent to arbitrate entered into in accordance herewith as provided in this paragraph will be specifically enforceable under the prevailing arbitration law of any court having jurisdiction.

b. Notice of demand for arbitration must be filed in writing with the other parties to this Agreement and with the American Arbitration Association. The demand must be made within a reasonable time after the claim, dispute or other matter in question has arisen. In no event may the demand for arbitration be made after institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be barred by the applicable statute of limitations.

c. All demands for arbitration and all answering statements thereto which

include any monetary claim must contain a statement that the total sum or value in controversy as alleged by the party making such demand or answering statement is not more than $200,000 (exclusive of interest and costs). The arbitrators will not have jurisdiction, power or authority to consider, or make findings (except in denial of their own jurisdiction) concerning any claim, counterclaim, dispute or other matter in question where the amount in controversy thereof is more than $200,000 (exclusive of interest and costs) or to render a monetary award in response thereto against any party which totals more than $200,000 (exclusive of interest and costs).

d. No arbitration arising out of, or relating to, this Agreement may include, by

consolidation, joinder or in any other manner, any person or entity who is not a party to this Agreement.

e. By written consent signed by all the parties to this Agreement and

containing a specific reference hereto, the limitations and restrictions contained in paragraphs _________ may be waived in whole or in part as to any claim, counterclaim, dispute or other matter specifically described in such consent. No consent to arbitration in respect of a specifically described claim, counterclaim, dispute or other matter in question will constitute consent to arbitrate any other claim, counterclaim, dispute or other matter in question which is not specifically described in such consent or in which the sum or value in controversy exceeds $200,000 (exclusive of interest and costs) or which is with any party not specifically described therein.

f. The award rendered by the arbitrators shall be in writing and shall include

an opinion which delineates the arbitration panel’s reasons for their award. The award shall be final, not subject to appeal and judgment may be entered upon it in any court having jurisdiction thereof.

XXVI. MAINTENANCE OF EFFORT

The Contractor shall not displace any currently employed workers (including partial displacement, such as a reduction in hours, wages or benefits) nor replace any laid off or terminated unsubsidized worker with a participant whose wages are subsidized under this program.

If the County is in receipt of Wage Subsidy Program funds pursuant to Minn. Stat.

§ 268.552, or Minnesota Youth Program funds under Minn. Stat. § 268.56, such funds may be

used for youth employment with the County or private employers. Neither the County nor the

private employer can lay off, terminate, or reduce the working hours of an employee for the

purpose of hiring an individual with funds provided by these programs. An employer may not hire

an individual with funds available under this program if any other person is on layoff from the

same or a substantially equivalent job. Check with funding source for specific language.

XXVII. DATA PRIVACY

Pursuant to Minn. Stat. Ch. 13, Contractor agrees to maintain and protect data on individuals received, or to which Contractor has access, according to the statutory provisions applicable to the data. No private, public, or confidential data developed, maintained or reviewed by Contractor under this agreement may be released to the public by Contractor or Contractor’s employees or representatives. Contractor agrees to indemnify and save and hold the County, its agents and employees, harmless from any and all claims or causes of action arising from or in any manner attributable to any violation of any provision of the Minnesota Government Data Practices Act by Contractor or its agents or employees, including legal fees and disbursements paid or incurred to enforce this provision of this contract.

The collection, storage, use or dissemination of government data is governed by Minn. Stat. Ch. 13 (Minnesota Government Data Practices Act). Because the County is responsible for the protection of private and confidential data, contracts in which contractors will be permitted to see or utilize nonpublic data must include a provision requiring the Contractor to comply with the Minnesota Government Data Practices Act. Subcontracts should also contain the same provision. Sample Provisions:

27. DATA PRIVACY

a. Pursuant to Minn. Stat. Ch. 13, Contractor agrees to protect from release to third parties all public, private, or confidential government data that has a commercial value and which is a substantial and discrete portion of or an entire formula, pattern, compilation, program, device, method, technique, process, data base or system maintained, created, or used by Contractor under the terms of this agreement. Ownership of all such data having commercial value shall remain in the County.

b. See also Technology Agreements Section XXXIII.

XXVIII. OWNERSHIP OF WORK PRODUCT

Ownership of Documents. Any reports, studies, photographs, negatives, or other documents prepared by Contractor in the performance of its obligations under this contract shall be the exclusive property of the County, and all such materials shall be remitted to the County by Contractor upon completion, termination, or cancellation of this contract. Contractor shall not use, willingly allow, or cause to have such materials used for any purpose other than performance of Contractor’s obligations under this contract without the prior written consent of the County.

When contracting for the creation of drawings, specifications, reports, maps, or other types

of work product data, the County should include a provision which clearly states that the County is

entitled to ownership of the work product. In some situations in which the work product may be

reutilized by the Contractor (e.g. architectural diagrams), the Contractor will attempt to declare

ownership in the work product even though the County paid for the creation of the work product.

Architects and other construction professionals will also attempt to limit reuse of work product

(e.g. construction documents) for remodeling or reuse at a different location. The argument made

by the construction professionals is that a diagram may have been created for the particular

building variables at a specific site and may not be fit for a particular purpose at a different site.

Provisions to protect the County should include ownership of work product and a requirement that

a Contractor return to the County all data, drawings, specifications, etc., arising out of the project

in the event of termination or completion of the project. See also Minn. Stat. § 13.03, subd. 3,

regarding government rights to data having commercial value. See also Sections XXIX and

XVII.

XXIX. COPYRIGHTS AND PATENTS

A contract for goods or services should include contract language protecting the County’s

ownership interest in all copyrightable materials. Additionally, a Contractor creating or

providing a product to the County should indemnify the County from any third-party claims

arising from Contractor’s infringement upon patents, copyrights, processes, or designs owned by

third parties. Copyright ownership should be included to ensure County ownership of the work

product and finished goods. Copyright indemnification provisions should be included in all

computer contracts between the County and a vendor involving purchase, lease or use of

copyrightable material received from the vendor.

A. COPYRIGHT

Copyright protection excludes others from reproducing copyrightable material for a

limited period of time. For all works created on or after January 1, 1978, the duration of the

copyright is the life of the author plus 70 years. For corporate authors the term is 75 years.

Anonymous works, works for hire and pseudonymous works are covered for 95 years from the

date of publication or 120 years from the date of creation, whichever is less. Basically, all written

materials, including art work, music, and maps are copyrightable. Items such as motion pictures,

sound recordings, and computer software are also copyrightable. See 17 U.S.C. § 302 (2000),

Copyrights.

To protect the owner’s copyright interest, a copyright notice should be placed on all

publicly distributed copies of the copyrightable material, although since March 1, 1989, a

copyright notice is no longer required for materials to be considered copyrighted. A copyright

notice contains the following three elements:

1. The letter “C” in a circle, or the word “copyright” or the abbreviation “copr.”; and

2. The year of first publication of the work (this means the year the work was finished

and first distributed); and

3. The name of the copyright owner.

An example of copyright notice would be: ©, 2003, County of _________, Minnesota.

Although registration with the Copyright Office is not a requisite for a valid copyright, it is

a prerequisite for claiming statutory damages or attorney’s fees in a copyright infringement action.

Note that pursuant to 28 U.S.C. § 1338(a) (2000), copyright infringement is exclusively within the

jurisdiction of the federal courts.

Copyright registration offers the following advantages to the copyright owner:

1. A public record of the copyright claim.

2. Establishes prima facie evidence of the validity of the facts stated in the registration

certificate if registration is made within five years of the first publication of the

work.

3. Statutory damages of up to $30,000 and recovery of attorney’s fees are not

available for infringement prior to registration. 17 U.S.C. §§ 412, 504, 505.

Copyright registration is advised for all important works created by County employees or

contracted for by the County. Copyrights may be filed with the Copyright Office through the

completion of a short form and payment of a small fee.

B. COPYRIGHT OWNERSHIP

Generally, all works created by County employees during the course and scope of their

employment are copyrightable by the County. However, under the 1976 Copyright Act, as

amended, 17 U.S.C. 101 and 201(b), works made under contract by an independent contractor

belong to the “author” rather than the hiring party unless the parties agree in writing that the goods

(such as a software programs, manuals, videos ) are specifically “works made for hire” . If there

is no such writing, then the independent contractor may have copyright ownership of all works

produced under the contract. Accordingly, the following language must be inserted in all

contracts with independent contractors for which the County desires to retain copyright

ownership:

It is further agreed that all right, title, and interest in all copyrightable material which Contractor shall conceive or originate, either individually or jointly with others, and which arises out of the performance of this Agreement, will be the property of _________ County and are by this Agreement assigned to _________ County along with ownership of any and all copyrights in the copyrightable material. Contractor also agrees upon the request of _________ County to execute all papers and perform all other acts necessary to assist _________ County to obtain and register copyrights on such materials. Where applicable, works of authorship created by Contractor for _________ County in performance of this Agreement shall be considered “works made for hire” as defined in the U.S. Copyright Act.

C. COPYRIGHT AND PATENT INDEMNIFICATION

Since the source work for many materials such as maps, charts, videos and films are

derived from many unknown sources, prudence requires the insertion of indemnification

provisions in all contracts involving purchase or creation of copyrightable or patentable material.

Accordingly, the following indemnification language should be inserted:

Contractor represents and warrants that the System does not and will not infringe upon any patents, copyrights, processes, or designs owned by another. Contractor will defend at Contractor’s expense any action brought against _________ County to the extent that it is based on a claim that the System infringes upon a copyright, patent, process, or design provided that _________ County notifies Contractor promptly in writing of the claim and that _________ County cooperates in the defense thereof. Contractor will pay any and all such claims, demands, obligations, liabilities, costs, and damages including, but not limited to, reasonable counsel fees arising out of this Agreement which are attributable to such claims. Contractor reserves the right to designate counsel.

If such a claim has occurred, or in Contractor’s or _________ County’s opinion is likely to occur, Contractor shall either procure for _________ County the right to continue using the material at issue or replace or modify the allegedly infringing material. If an option satisfactory to _________ County is not reasonably available, _________ County shall return the material at issue to Contractor on written request of Contractor and at Contractor’s expense for returning materials. This remedy shall be in addition to and shall not be exclusive to other remedies provided by law.

(See also Section VII, 7.2.)

XXX. JOINT POWERS AGREEMENT

This Agreement made and entered into this _____ day of ________, 20___, by and between the counties of ____________, ______________ and ____________, bodies corporate and politic existing under the laws of the State of Minnesota. WITNESSETH:

WHEREAS, the above-named counties entered into an agreement on July

1, 1976, to create a Regional Corrections entity, a jointly operated program to promote efficiency and economy in the delivery of regional corrections services pursuant to Minn. Stat. § 471.59 (Joint Exercise of Powers Act) and Minn. Stat. Ch. 401 (Community Corrections Act); and

WHEREAS, the member counties of the Regional Corrections entity desire

to modify the terms and procedures of their participation in their regional community corrections program as hereinafter provided;

NOW, THEREFORE, in consideration of the mutual promises and

agreements contained herein, the parties do agree as follows:

Pursuant to Minn. Stat. § 471.59 (Joint Exercise of Powers), two or more governmental

units, by agreement entered into through action of their governing bodies, may jointly or

cooperatively exercise any power common to the contracting powers or any similar powers,

including those which are the same except for territorial limits within which they may be

exercised. Such agreement shall state the purpose of the agreement or the power to be exercised,

and it shall provide for the method by which the purpose sought shall be accomplished or the

manner in which the power shall be exercised. A joint powers agreement should include

identification of joint board members if the agreement provides for the use of a joint board, method

of disbursement of funds, duration of the agreement and services to be provided.

Joint powers agreements may be used in a variety of situations, including, but not limited

to:

1. Establishment of a regional community corrections program. 2. Establishment of a regional drug task force. 3. Establishment of a regional solid waste commission. 4. Establishment of a contract for services (i.e. County-performed law enforcement

services for a municipality). 5. Establishment of mutual aid agreements between law enforcement agencies. 6. Creation of a Family Services Collaborative

You should review Minn. Stat. § 471.59 for further details concerning the content of joint

powers agreements.

XXXI. FAIR HEARING AND GRIEVANCE PROCEDURE

The agency shall establish a fair hearing and grievance procedure for eligible recipients. Eligible recipients having a complaint or grievance shall be entitled to notice and a hearing pursuant to such procedure.

Contracts for the provision of social services or social services programs funded by the

State of Minnesota or the federal government often require that the Contractor establish a

grievance procedure for service recipients. Grievance procedures for complaints related to State

departments or agencies are found in Minn. Stat. §§ 14.48 through 14.69. All complaints or

grievances relating to human services or welfare activities are governed by Minn. Stat. § 256.045.

Generally, if the County is the recipient of State or federal funding, the County is required

to sign a contract which includes a provision requiring the County to establish a fair hearing and

grievance procedure. If the County is funding a service provider, the County may require the

Contractor or vendor of services to establish a fair hearing and grievance procedure.

Sample Provisions:

31.1 Contractor agrees that a fair hearing and grievance procedure will be established in

conformance with and in conjunction with a fair hearing and grievance procedure established, developed and provided by the State Commissioner of Human Services and further agrees to inform eligible recipients of their right to a fair hearing.

31.2 Vendor will establish a system through which eligible recipients may present

grievances about the operation of the service program, and the vendor will advise eligible recipients of this right.

XXXII. SIGNATURE BLOCKS

IN WITNESS WHEREOF, the parties have executed this Agreement on the date and year first above written.

COUNTY OF _________ CONTRACTOR

BY: ___________________________

BY: ______________________ Chairperson, Board of

President Commissioners

BY: ___________________________ BY: ______________________ County Auditor

Secretary or (Clerk of the Board)

APPROVED AS TO FORM AND EXECUTION:

BY: ___________________________ Assistant County Attorney

Signatures on a contract should be by individuals who are authorized to bind the parties to

an agreement. In the case of a corporation, the president, vice-president, or secretary may be

authorized to sign. Inclusion of a corporate seal also provides authenticity of the signatures. On

behalf of the County, the chairperson of the County Board and the clerk of the Board ( Auditor)

are mandatory signatories for “deeds and other instruments made by the county in its name.” Minn.

Stat. § 373.02. The Auditor’s signature signifies that funds have been appropriated for the contract

by County Board resolution. However, the purchasing director or other county personnel may

have authority delegated to them by county board resolution which will vary from one county to

another so its important to be aware of any such resolution or contracting policies established by

the county board.

If there is not a date at the beginning of the contract, each signature should be dated and the

contract should indicate that it is effective as of the last dated signature. See II. Identification of

Parties.

Sample Provisions:

33.a COUNTY OF CONTRACTOR

BY: ___________________________ BY: ______________________ Purchasing Director President

DATE: DATE:

APPROVED AS TO FORM AND BY:

EXECUTION: BY: ___________________________ DATE: Assistant County Attorney

33.b Signature blocks can be followed by notary blocks:

STATE OF MINNESOTA )

) SS. COUNTY OF ________ ) Individual

This instrument was acknowledged before me on _________, 20__, by __________________________, who, being duly sworn, represents and warrants that he/she/they is/are authorized by law to execute this Contract, intending to be legally bound thereon.

_____________________________

Notary Public

Corporation/Organization

This instrument was acknowledged before me on ________, 20___, by ________________, (title) ____________, of _____________________________, who, being duly sworn, represents and warrants that he/she/they is/are authorized by law and all necessary board action to execute this Contract on behalf of the corporation/organization, intending this Contract to be a legally binding obligation of the corporation/organization.

______________________________

Notary Public

XXXIII. TECHNOLOGY CONTRACTING

Technology contracting is becoming much more frequent in the County environment.

The negotiation and drafting of agreements in the technology realm requires many special

considerations not typical of ordinary professional services, equipment, or supply contracting.

Contracts for computer software or hardware are often submitted on form contracts from the seller,

in the event of purchases made in the open market, or are done by specially drafted agreements

when contracting with independent contractors or agencies for computer software development or

other technology projects such as website design. Care must be taken in review of either form

contracts or the creation of specific contracts for technology products.

In reviewing vendor form contracts, it is important to review trial periods and service

agreements. Often, a vendor will require payment of all compensation due under an agreement

within 30 days of the County’s receipt of the vendor’s goods. However, many problems inherent

in complex computer software or hardware may not become apparent to a user for a long period of

time. It is important, therefore, to either make payment to a vendor over a longer period of time,

or, in the alternative, to specify a trial time in the contract during which the County can give the

computer hardware or software a trial run to test its fitness and compatibility with County

equipment. The conditions or events which trigger the County’s acceptance should be well

defined. Each computer product agreement should be reviewed for terms regarding service.

Because service may involve large sums of money and may tie the County to a particular vendor, it

is important to have a service period which fits the County’s needs. For some types of products,

many service providers are available so that the County does not have to bind itself to the product

vendor. For other types of products, the County may choose to have a longer service period in the

event that it desires to guarantee service from a particular vendor or to maintain a specific charge

for services over a period of time. When reviewing service agreements, the useful life of the

product should be considered to prevent unnecessary payment.

It is strongly suggested that the County Attorney’s Office be involved in any proposed

project prior to the development of any RFP, bid, negotiation, or decision process. Every aspect

of negotiation and contract development requires unique and strategic approaches to the project.

Financial and non-financial terms of the Agreement may have huge consequences, positive or

negative, in the future. The following is a User Guide on a provision by provision basis of

considerations that must be made early on in the process. Not included in this guide is a section

on definitions, but as in other types of contracts, a section with definitions can be very important

and care should be taken in determining what to include.

33.1 CONTRACT TITLE

The title of a contract should indicate the subject matter and other important information

concisely. A misstatement of the scope of a project or expected services may be construed

adversely at a later time in both the business and litigation environment.

33.2 IDENTIFICATION OF PARTIES

The typical “Identification of Parties” provision should be utilized in technology project

matters identifying each party by its formal name and address and then providing thereafter a

reference name as indicated by hereinafter referred to as “_____________.” If a department is

acting as the contracting party on behalf of the County, it may only do so by authorization of the

County Board. When such authorization exists, the above paragraph can include the phrase “By

Its (department).” In technology contracting, it is important to consider identification of parties

from the standpoint of primary licenses verses user licenses. The broader the identification of

party, the more we may be able to avoid additional primary license fees for additional departments

or integration partners. This is vital in site license agreements. Identification of parties should

especially be an important consideration in matters in which integration or access by other

agencies is expected. The issue will present itself very commonly when obtaining subscription

services via the Internet or CD-ROM. Any potential primary license issues should be ferreted out

prior to negotiation and dealt with in the identification of parties clause and appropriate provisions

pertaining to license rights.

33.3 RECITALS

Recitals, while not a necessary part of every contract, serve a very important purpose from

both a contract administration standpoint and, if necessary, a litigation standpoint. Recitals give

life to a contract by providing the background intent of the parties and purpose of the contract. It

can be very useful in many circumstances, especially with respect to acceptance testing,

performance, requirements, and emphasizing the whole purpose behind a project. This is the

means by which proof of a substantial breach can be made when there only appears to be a minor

breach in terms of individual components of the project. They may also serve to better explain the

rationale for multiple termination clauses, project and application based termination clauses, time

and penalty provisions and the essential deliverables included in the contract. We have found that

we have been able to place any recitals we choose into contracts, as they are not core terms of the

contract. This substantially strengthens your contract.

33.4 DURATION OF CONTRACT OR LICENSE

It is usually a mistake to make the date that an Agreement is signed, the date that is used to

determine the term or duration of the contract. This is particularly so with respect to

technology-based agreements. Terms of warranty, terms of maintenance, duration of license, and

other important provisions should not run from the date the Agreement is signed. The negotiation

of this portion of the Agreement is vital. Our position should be that contracts, licenses,

maintenance, and warranties should not commence until the date of acceptance of the application

or system following performance measurements and acceptance testing. A typical provision, the

“term” paragraph applying the date of execution of the Agreement should merely commence

performance indemnification and insurance, it should not commence the warranty period,

maintenance period, or duration of any limited duration license.

Sample provisions:

a. Contractor shall commence performance following execution of this Agreement by County and end performance upon completion, but no later than (date) , unless otherwise directed by County or unless earlier terminated. In the event that Contractor elects to begin performance prior to County’s execution, Contractor hereby agrees that all provisions of this Agreement, expressly including Section ___, Indemnification and Insurance, shall apply to Contractor as though Contractor had begun performance following execution.

b. If the Contractor shall, for any reason, cease to conduct business or otherwise fail to

support and maintain the software, the software license granted herein shall automatically be converted into a perpetual license and shall thereafter be free of charge to the County. In such case the Contractor will supply detailed specifications and application source code so that the County can maintain the system.

c. Software License. The Contractor grants the County a perpetual license to use the software and related materials specifically supplied pursuant to this Contract. The County agrees not to disclose, duplicate or allow the disclosure of such confidential information or data except for archive, diagnostic, single off-site back-up or emergency restart purposes, or where ordered by a court of competent jurisdiction to make such disclosure.

33.5 DESIGNATED REPRESENTATIVE / NOTICE

The standard “Designated Representative” provision and “Notice” provision we utilize in

other agreements are particularly valuable for technology projects. A representative responsible

for contract-related issues should be designated and a day-to-day party for project issues should be

designated.

Sample provisions:

a. The , _________________________, at phone number __________ is the representative of ___________________ and will administer this Agreement for and on behalf of ____________________. ____________________ at telephone number _________________ is the authorized representative for _______________________. Changes in designated representatives shall be made only after advance written notice to the other party.

b. To assist the parties in the day to day performance of this contract and to develop

service, ensure compliance, and provide ongoing consultation, a liaison shall be designated by _______________ and __________________. The parties shall keep each other continually informed, in writing, of any change in the designated liaison. At the time of execution of this contract, the following persons are the designated liaisons:

To ________________: ________________(Name),_________________(Address). To ________________: ________________(Name),_________________(Address).

c. Any notice or consent required or permitted to be given under this Agreement shall

be given to the respective parties in writing, by first class mail, postage prepaid, or otherwise delivered as follows:

To ________________: ________________(Name),_________________(Address). To ________________: ________________(Name),_________________(Address). or at such other address or to such other person that the parties may from time to time designate. Notices and consents under this section, which are sent by mail, shall be deemed to be received five (5) days following their deposit in the U.S. mail.

33.6 SCOPE OF SERVICES

This is the most important part of a technology contract. It is also a good place to insert

performance requirements and a potential place to locate acceptance testing as a contractual

provision. A quality vendor should be able to provide a good draft of the scope of services. Care

should be taken that it includes the entirety of the project and all the functions that need to be

performed with respect to it. Frequently, a project plan is prepared and incorporated by reference

into the “scope of services.”

Sample provision:

Contractor agrees to provide services to County in accordance with Exhibit A attached hereto and incorporated herein by reference.

33.7 PERFORMANCE

Defining “performance” is essential to ensuring that what is received is what was

bargained for in the broader sense of a specific technological project. A specific technology

development, although satisfactory in its isolated creation, may have integration issues affecting a

broader technology system which undermines the intended goal for its creation, potentially

rendering the technological project worthless to the party who bargained for its creation. As such,

in the context of technology contracting, we need to expand our understanding of our negotiation

goals in defining “performance,” so as to include our expectation of our broader technology

system. In addition to recitals, there are three types of provisions that should be considered in

defining “performance” in a typical technology contract: Performance Testing; Project Plan ; and

Objective.

A. Performance Testing

Sample provision:

Description of Performance Testing

The performance testing will be performed by the Contractor after final data conversion is completed and prior to the Go Live date. The performance testing will be performed within the County Main network in a controlled environment to ensure that the County network does not interfere with the results of the test.

Prior to performing the test, the Contractor will devise a formal test plan, to be approved in advance by the County, so that typical system transactions and operations can be simulated in the production database. The County will monitor and approve results of tests conducted prior to system acceptance.

The following table presents typical performance indicators for the performance test:

Transaction/Operation Response Simple Query Sub 3 Seconds Complex Query Sub 10 Seconds Save Transaction Sub 5 Seconds Simple Report (Statistical) Within 2 Minutes Complex Report (Statistical) Within 10 Minutes Simple Ad Hoc Report Within 10 Minutes Complex Ad Hoc Report Within 4 Hours

Definitions

Simple Query A simple query is a query performed in a transaction screen for the purpose of modifying information, e.g. Case Worksheet.

Complex Query A complex query is a query performing a system-wide type of search. This type of query typically searches several tables in order to retrieve the information in several blocks of a screen. In other words, a complex query is a collection of several simple queries as described above.

Save Transaction A save transaction is the process by which the database records and stores information changed by a user in a transaction screen.

Simple Report A simple report is a report that lists information as stored in the database, e.g., Attorney Calendar Report.

Complex Report A complex report is a report that performs a system-wide search for the purpose of computing and presenting statistics, e.g., ___________________ (example).

Simple Ad Hoc Report A simple Ad Hoc report is a report created by a user that will be using mostly indexed fields in the search criteria.

Complex Ad Hoc Report A complex Ad Hoc report is a report that involves joining several tables, with complex selection criteria accessing non-indexed columns. Documents and Reports Contractor recognizes the County utilizes the Corel WordPerfect 8 Suite and Novell GroupWise 5.5 applications. Performance testing will include satisfactory performance of ______________ with these applications including document production with WordPerfect, integrated calendar with GroupWise 5.5 and the ability to move Ad Hoc report results to the Corel Suite.

B. Project plan

A “Project Plan” provision provides for the incorporation of a Memorandum of

Understanding into the underlying technology contract, in which the contracting parties lay out a

specific action step plan for satisfying the parties’ performance expectations. The MOU may

include specific work and role assignments as well as timetables for task and item completion.

Sample provision:

A project plan will be provided by Contractor to the County which details the steps necessary to install all software and perform any conversion or migration tasks. This document shall constitute a Memorandum of Understanding between the parties as to the respective responsibilities of Contractor and the County’s MIS and Department.

C. Objective

An “Objective” provision is a comprehensive summary statement of the intended

operational utilities and systems integration goals of the technology project, as well as a broad

identifying statement of continued and future obligations for project support and evolution.

Sample provision:

Contractor’s objective is to provide the technical support and services, advice and training to ensure a successful installation and implementation of the _________________ application system at all of the County’s locations. The end goal is for the County to be fully conversant with the application and capable of performing all system administration tasks including ad hoc report design, document template development, security support, system backup, and basic database administration. Ongoing technical support and assistance will of course be provided by Contractor as part of the Annual Maintenance Agreement.

33.8 WARRANTIES, INDEMNIFICATION, AND INSURANCE

Suitable warranties, (“warranty” and “warranty limitations”), “indemnification and

insurance” provisions must be made to protect the County from any and all claims including patent

or copyright infringement. Because it is not possible to know whether or not various vendors

have infringed upon any third party’s copyrighted material, responsible vendors should have not

complaint in allowing a copyright indemnification provision to protect the County as an addendum

or inclusion in form agreement language. It is best to run the warranty period for one year

following the acceptance date of installed systems. This effectively eliminates a year’s

maintenance and support obligations and gives the County a year to ferret out any deficiencies in

the product.

Y 2000 and Leap Year compliance provisions should be built into contracts as a protection

against any decrease in product functionality or accuracy.

Sample provisions:

A. Warranty

a. The Contractor warrants, represents and assures that the computer application software and services to be provided hereunder shall conform in all respects to the requirements of this Contract; as designed will meet the functional and performance standards contained in the RFP; and will meet or exceed the representations contained in the response for a period of twelve (12) months after acceptance testing and approval by the department of the unmodified application products software package.

b. Effect of Payment. The payment of any invoice before final acceptance of the

work shall in no way affect the obligation of the Contractor to repair any defective parts of the application software.

c. Contractor warrants the Software to operate in all material respects as specified in

the documentation. Contractor shall be responsible for correcting, at its own expense, any material defects in the Software that are brought to Contractor’s attention by County within a period of one (1) year after acceptance of the Software to County. Such repair efforts represent County’s sole and exclusive remedy for breach of warranty.

d. Contractor warrants as follows for all software customization made by Contractor

for the County: (1) All software customization will continue to be supported by Contractor under its Maintenance Agreement with the County; (2) All software customizations will be preserved and will remain functional in any future software versions, revisions, or updates provided by Contractor; (3) All future software versions, revision, or updates provided by Contractor will not cause the County to incur any additional cost as a result of the software customizations. These provisions shall apply for as long as the County is covered by the Contractor’s Maintenance Agreement.

e. The foregoing warranty is in lieu of all other warranties of conditions, express or

implied, including but not limited to any implied warranties or conditions of merchantability, merchantable quality and fitness for a particular purpose and those arising by statute or otherwise in law or from the course of dealing or usage of trade. Contractor does not represent or warrant that this software will meet any or all of county’s particular requirements, that the software will operate error-free or

uninterrupted and that all program errors in the software can be found in order to be corrected. Nor does contractor make any warranties regarding the accuracy, reliability, or currency of any information content.

f. Contractor’s entire liability and responsibility for any and all claims, damages or

losses arising from use of the software by county shall be absolutely limited to the amount(s) of the license fee actually paid, except as provided in section 16. Notwithstanding any provision contained herein, Contractor shall not be liable for any indirect, consequential, special, incidental or contingent damages or expenses, whether in contract, tort (including negligence) or otherwise, arising in any way out of this Agreement, the software, or Contractor’s performance or lack thereof under this Agreement, including without limiting the generality of the foregoing, loss of revenue, profit or use.

g. Prior to expiration of the warranty period, any such termination of the Contractor’s

operation as directly related to this Contract shall in no way resolve the Contractor’s absolute responsibilities pursuant to this Contract.

h. Contractor warrants that any Software Product furnished by Contractor pursuant to

this Agreement shall support a four-digit year format and be able to accurately process date and time data from, into, and between the 20th and 21st centuries, and the years 1999 and 2000, as well as leap year calculations. For purposes of this section, “Software Product” shall include, without limitation, any piece or component of equipment, hardware, firmware, middleware, custom or commercial software, or internal components of subroutines therein together with updates, upgrades and enhancements on same. This warranty shall survive termination or expiration of this Agreement.

i. In the event of any decrease in Software Product functionality or accuracy related

to time and/or date data related codes and/or internal subroutines that impede the Software Product from operating correctly using dates beyond December 31, 1999, Contractor shall restore or repair the Software Product to the same level of functionality as warranted herein, so as to minimize interruption to County’s ongoing business processes, time being of the essence. In the event that such warranty compliance requires the acquisition of additional programs, the expense for any such associated or additional acquisitions that may be required, including without limitations, data conversion tools shall be borne exclusively by Contractor.

j. Nothing in this warranty shall be construed to limit any rights or remedies the County may otherwise have under this Agreement with respect to defects other than Year 2000 performance. Contractor shall obtain the same assurances from all other suppliers whose products Contractor relies upon for operation of Contractor’s software and shall furnish them to County upon request.

B. Indemnification k. Contractor shall defend, indemnify and save harmless the County, its officers,

agents and employees from any and all claims, demands, damages, costs, expenses (including attorney’s fees), judgments or liabilities arising out of this Agreement or occasioned by the performance or attempted performance of the provisions hereof; including, but not limited to, any act or omission to act on the part of the Contractor or his agents or employees or other independent contractors directly responsible to him; except those claims, demands, damages, costs, expenses (including attorney’s fees), judgments or liabilities to the extent resulting from the negligence or willful misconduct of the County. With respect to any and all claims, demands, damages, costs, expenses (including attorney’s fees), judgments or liabilities arising from the joint or concurrent negligence of Contractor and the County, each party shall assume responsibility in proportion to the degree or its respective fault as determined by a court of competent jurisdiction. Contractor’s obligation to indemnify County is contingent upon the County giving prompt notice to Contractor of any claims, permitting Contractor to defend, compromise, or settle any claim, and cooperating with the defense of any such claim.

l. Contractor shall notify the County immediately in the event of any accident or

injury arising out or in connection with this Agreement. C. Insurance

m. Without limiting the Contractor’s indemnification of the County, Contractor shall procure the following required insurance coverages at its sole cost and expense. All insurance coverages are to be placed with insurers which (1) have a Best’s rating of no less than B+: VIII, and (2) are admitted insurance companies in the State of ____________. All other insurers require the prior approval of the County. Such insurance coverage shall be maintained during the term of this Agreement. Failure to comply with the insurance requirements shall place Contractor in default. Upon request by the County, Contractor shall provide a certified copy of any insurance policy to the County within ten (10) working days.

Workers’ Compensation Insurance. Statutory Workers’ Compensation and Employer’s Liability Insurance shall cover all Contractor’s staff while performing any work incidental to the performance of its Agreement. The policy shall provide that no cancellation, major change in coverage, or expiration shall be effective or occur until at least thirty (30) days after receipt of such notice by the County. In the event Contractor is self-inured; it shall furnish a copy of Certificate of Consent to Self-insured issued by Department of Industrial Relations for State of . This provision does not apply if Contractor has no employees as defined in Labor Code Section 3350 etc. during the entire period of this Agreement and Contractor submits a written statement to the County stating that fact.

General and Automobile Liability Insurance. The general liability insurance shall include personal injury liability coverage, shall afford coverage for all premises and operations of Contractor and shall include contractual liability coverage for this Agreement between County and Contractor. The automobile liability insurance shall cover all owned, non-owned and hired motor vehicles, which are operated on behalf of Contractor pursuant to Contractor’s activities hereunder. The County, its officers, employees, and agents shall be named as additional insureds on any policy. The limit of liability of said policy or policies for general and automobile liability insurance shall not be less than $1,000,000 per occurrence combined single limit for bodily injury and property damage. Personal injury liability coverage shall also be in the amount of not less than $1,000,000 per occurrence and aggregate. Said policy or policies shall include a severability of interest or cross liability clause or equivalent wording. Said policy or policies shall contain a provision of the following form: “Such insurance as is afforded by this policy shall be primary and contributory to the full limits stated in the declarations, and if the County has other valid and collectible insurance for a loss covered by this policy, that other insurance shall be excess only.” Said policy or policies shall provide that the County shall be given thirty (30) days’ written notice prior to cancellation or expiration of the policy or reduction in coverage.

Contractor shall submit to the office of the designated County representative certificate(s) of insurance documenting the required insurance as specified above prior to this Agreement becoming effective. Current certificate(s) of insurance shall be maintained at all times in the office of the designated County representative as a condition precedent to any payment by County under this Agreement. The approval of insurance shall neither relieve nor decrease the liability of the Contractor.

33.9 TITLE TO SOFTWARE

Software which is being developed expressly for the County should be owned by the

County. Minnesota Statutes § 375.84-.86 expressly allows the County to copyright, own, and

market software products. In circumstances in which the contract is for the County to act as either

an “alpha” or “beta” site, the County should consider the fact of their contribution as a potential

ownership issue that needs to be negotiated between the parties as to ownership, royalties, or

favorable contract terms, and an ownership provision should be added in circumstances in which

software is being exclusively developed for the County. A recital should expressly be used in

circumstances in which such rights are being given up in consideration for permanent or long term

favorable contract terms over other licensees. In other instances, the County will be required to

acknowledge the Contractor’s ownership of intellectual property interests in order to access the

Contractor’s technology. See XXIX-2.

Sample provisions:

a. County acknowledges that Contractor owns all right, title and interest in and to the Software, the Documentation and other information relating thereto, including all patents, trademarks, copyrights, trade secrets and other intellectual property rights.

b. Consultant hereby grants to County, and County hereby accepts, the entire right,

title and interest of Consultant in and to the Work Product and in and to all patents, copyrights, trade secrets and other proprietary rights in or based on the Work Product.

c. Consultant hereby grants to County, and County hereby accepts, an unlimited,

unrestricted, royalty-free, fully paid-up, worldwide and nonexclusive right and license, with the right to grant licenses and sublicenses to others without accounting to Consultant, under the Background Rights and all proprietary rights therein or based thereon.

d. Consultant and County agree that if the Work Product or any portion thereof is

copyrightable, it shall be deemed to be a “work made for hire,” as such term is defined in the Copyright Laws of the United States.

e. Consultant shall cooperate with County or its designees and execute all documents

of assignment, oaths, declarations or other documents, as may be prepared by County, to effect the foregoing or to perfect or enforce any proprietary rights resulting from or related to this Agreement. Such cooperation and execution shall be at no additional compensation to Consultant.

f. Consultant represents that the Work Product does not and will not infringe upon

any patents, copyrights, processes, or designs owned by another. Consultant shall pay any and all damages, costs and attorney’s fees resulting from any actions brought against the County which are based upon a claim that Consultant’s Work Product infringes upon a copyright, patent, process, or design.

g. Upon prior written approval of the County Representative, the Consultant may use

the Work Product solely for the purposes designated in the written approval. Under no circumstances may the Consultant release, sell, or exchange the Work Product to any person, corporation, agency, partnership, or entity.

33.10 ESCROW AGREEMENTS

The purpose of Escrow Agreements is to protect licensees in the event of default on the part

of the licensor. They are of two common types; Second Party Escrow Agreements and Third

Party Escrow Agreements. Second Party Escrow Agreements exist where a Software License

Agreement incorporates by reference an escrow agreement between the licensor and an escrow

agent. Third Party Escrow Agreements exist where the licensee, licensor, and escrow agent enter

into a three-way escrow agreement with each other. It is recommended that the County pursue an

up-to-date second party agreement over a third party agreement, primarily because the latter will

ordinarily cost additional sums to the County.

Additional protection should also be sought by negotiating within the context of the

underlying Software License Agreement, a Source Code provision that secures a complete copy of

the source code version of all software for the County to be resorted to if necessary to maintain the

software at a future date. While difficult to negotiate, this additional security provision addresses

the fact that bankruptcy courts frequently frustrate the purpose of an Escrow Agreement by

refusing to release escrowed source code pending a total resolution of the bankruptcy matter.

Patent and copyright infringement cases can also result in the same type of injunctive procedures.

See Sample Escrow agreements.

33.11 UPDATES AND UPGRADES

“Updates” and “Upgrades” are technical terms of art used in reference to computer

software programs. Updates refer to corrections and debugging of the software programs.

Accordingly, a contract should include language granting the County free access to all software

updates through the time period that the County uses the software or include within the scope of a

maintenance agreement. Upgrades are improvements that change the basic functionality of the

software. Since it is impossible to predict the future costs and frequency of upgrades, the

upgrades generally are purchased on a case-by-case basis. If desired, an attempt may be made to

include language in a contract allowing the County to purchase all software upgrades for a set

number of years at a base contract price or a small additional cost.

Sample provisions:

a. Software Upgrades. The Contractor will provide to the County all upgrades, available to any other customer. Those upgrades shall be in a form compatible to all software supplied hereunder. Such upgrades shall be provided without additional cost to the department other than the normal annual maintenance fee. For this paragraph, the term “upgrades” will mean any improvement, modification, change or alteration to the software. The Contractor will provide the source code for all upgrades.

b. Increases to Maintenance and Enhancement Services. The Contractor charges

herein established for maintenance and other services including enhancements shall not be increased for 12 months following the warranty period. Thereafter, the County shall receive the lower of rates generally charged other customers or the charges established herein increased by a maximum of 5 percent for each year for 10 years.

33.12 MAINTENANCE SUPPORT RESPONSE AND SEVERITY LEVEL REQUIREMENTS

24 x 7 and 24 x 5 support is common in the industry. The core question in negotiations is

the difference between the prices for each level of support and the reality of the needs of us as a

customer. “Severity levels” govern the performance requirements in the various support

circumstances, and should be included in any maintenance provision.

Sample provision:

. a. In consideration of payments to be made by County to Contractor as set out in Exhibit B, Contractor agrees to provide the following Silver Service Level software maintenance services during the periods, covered by the maintenance fees:

1. Contractor will maintain the System Software so that it operates in conformity in all

material respects with the descriptions and specification for the Software set forth in the Documentation.

2. In the event that County notifies Contractor of any errors or defects in the Software,

Contractor will provide support, as described in the Contractor’s Maintenance Policy in Exhibit F-2, in the form of assistance and advice on the use and maintenance of the Software.

3. Contractor will send County Updates on CD-ROMS and notices of Upgrades of the

Software to the County’s address specified in this contract. Updates are those improvements and/or modifications to the Software that Contractor generally makes available as part of the annual maintenance program Contractor will establish and facilitate a User’s Group to develop and prioritize requests for system enhancements to address requirements and improve system functionality for inclusion in each annual update. An Upgrade is any product release, including added functionality, or major enhancement of the Software, that Contractor markets and licenses for additional fees separately from Updates.

4. Contractor shall provide County with Updates of the Software in a timely manner at

no additional charge. County shall be entitled to acquire a license to Upgrades for Contractor’s then prevailing license fees. Software Updates and Upgrades will be sent on three and a half (3½) inch diskettes or CD-ROMS with explanations, instructions, and updated documentation where appropriate.

5. Contractor will provide County with copies of standard reports developed for other

sites upon request. Contractor will provide estimated cost to tailor reports for installation at County, and if interested, County may purchase tailored reports.

6. Contractor will conduct on an annual basis a review of the application status and

performance with the County at their site.

b. Maintenance services shall not include, and County shall pay extra for, any and all consulting, implementation, customization, education and training related services, subject to the availability of Contractor’s staff. Maintenance service shall not include, and County shall pay extra for (subject to Contractor’s staff schedules): service to products not listed on Exhibit B; maintenance of software that has been modified or repaired by someone other than Contractor; modification or repair of damage caused by failure to continually provide a suitable operating environment for the software, including damage caused by accident, disaster, neglect or misuse; or modification or repair of damage caused by the use of the software for other than the purposes for which licensed.

c. County shall, at Contractor’s request, provide Contractor with the right of dial

access to County’s computers on which the Software is installed, so as to enable Contractor to monitor the operation of the Software.

d. Contractor will provide to the County documentation and available program fixes

(source codes) of all known problems affecting the computer application software on a monthly basis, for as long as the Contract remains in effect.

e. Within the limitations of the license for any proprietary portions of the software,

the County may use the software licensed hereunder for any purpose whatsoever without restriction.

f. The Contractor will deliver 100 percent of the application software source code to

the County when the computer application software is delivered. 33.13 OWNERSHIP OF DOCUMENTS

As with so many of our professional service contracts and other types of consulting

agreements, it is vital that St. Louis County be established through contract provision as the owner

of all documents related to the project.

Sample provisions:

a. County shall be the owner of the following items incidental to this Agreement upon production, whether or not completed: all data collected, all documents of any type

whatsoever, and any material necessary for the practical use of the data and/or documents from the time of collection and/or production whether or not performance under this Agreement is completed or terminated prior to completion, except for computer software, which shall be owned or licensed as provided in the Exhibits. Contractor shall not release any materials under this section except after prior written approval of County.

b. No materials produced in whole or in part under this Agreement shall be subject to

copyright in the United States or in any other country except as provided in the Exhibits, or except as determined at the sole discretion of County. County shall have the unrestricted authority to publish, disclose, distribute, and other use in whole or part, any reports, data, documents or other materials prepared under this Agreement, except for computer software, which shall be subject to the restrictions set forth in the Exhibits.

33.14 RECORDS, RETENTION, AND REVIEW

As in the case of all professional services contracts with a County, a “records, audit, and

review provision” is required under Minnesota Statutes § 16C.05, subd. 5. This provision is not

commonly provided for in the vendor’s contract. See IX-4 for Sample provision.

33.15. DATA PRIVACY

Requests for data may be made directly to the Contractor instead of St. Louis County. It is

important to establish that we are the responsible party for that data and that the Contractor shall

not release such data. Many technology contracts involve a compilation of data that has a discrete

value and constitutes a trade secret under Federal Law and under the Minnesota Data Practices

Act. A “Data Privacy” provision should address these concerns. Vendors seldom have such a

provision in their form contracts.

Sample provision:

a. Pursuant to Minn. Stat. Ch. 13, Contractor agrees to maintain and protect data on individuals received, or to which Contractor has access, according to the statutory provisions applicable to the data. No private, public, or confidential data developed, maintained or reviewed by Contractor under this Agreement may be

released to the public by Contractor or Contractor’s employees or representatives. Contractor agrees to indemnify and save and hold the County, its agents and employees, harmless from any and all claims or causes of action arising from or in any manner attributable to any violation of any provision of the Minnesota Government Data Practices Act by Contractor or its agents or employees, including legal fees and disbursements paid or incurred to enforce this provision of this contract.

b. Pursuant to Minn. Stat. Ch. 13, Contractor agrees to protect from release to third

parties all public, private, or confidential government data that may have a commercial value and which is a substantial and discrete portion of or an entire formula, pattern, compilation, program, device, method, technique, process, data base or system maintained, created, or used by Contractor under the terms of this Agreement. Ownership of all such data having commercial value shall remain in the County.

33.16 GOVERNING LAW

Most vendors of software systems and applications are not located in the State of

Minnesota. Absent a “Governing Law” provision or utilizing the typical standard form vendors

agreement, the governing law will be in the state of the vendor. This makes enforcement of the

contract unaffordable. Conversely, our enforcement of the contract in Minnesota makes

noncompliance by the vendor unaffordable. This provision is more meaningful than is apparent

for the reasons stated.

Sample Provision:

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 legal proceedings related to this Contract shall be venued in the State of Minnesota.

33.17 ENTIRE AGREEMENT

An “Entire Agreement” provision is very important in the technology contracting area

because of the frequency of multiple agreements and new agreements for new releases and

upgrades. It is important that any aspects of prior contracts be included in the new contract or

references that the former contracting rights, in whole or in part, are incorporated by reference into

the new agreement. A provision that the agreement in question is the entire agreement is a good

practice.

Sample provision:

In conjunction with the matters considered herein, this Agreement contains the entire understanding and agreement of the parties and there have been no promises, representations, agreements, warranties or undertakings by any of the parties, either oral or written, of any character or nature hereafter binding except as set forth herein. This Agreement may be altered, amended or modified only by an instrument in writing, executed by the parties to this Agreement and by no other means. Each party waives their future right to claim, contest or assert that this Agreement was modified, canceled, superseded, or changed by any oral agreements, course of conduct, waiver or estoppel.

33.18 ASSIGNMENT

Vendor specific contracts necessitate an “Assignment” clause so that the vendor you have

chosen by RFP or other process remains your vendor in the future. Usually this clause will also

contain a provision that does allow assignment to someone who has acquired all or substantially all

of the assets of the Contractor. These clauses also bind the Contractor successor to the

Agreement.

Sample provision:

Neither the Contractor nor the County shall assign any of its rights or transfer any of its obligations under this Agreement without the prior written consent of the other party, nor shall either party’s consent be unreasonably withheld. Any attempt to so assign or so transfer without such consent shall be void and without legal effect and shall constitute grounds for termination. Contractor shall have the right to assign to any entity, which acquires all, or substantially all of the assets of the Contractor. Any entity, which acquires all or substantially all of the assets of the Contractor shall be bound by this Agreement.

33.19 REMEDIES NOT EXCLUSIVE

A “Remedies Not Exclusive” clause is important to reserve the full and cumulative body of

the remedies available for breach of contract, including those remedies in equity and law not

specifically described as terms in the contract.

Sample provision:

a. No remedy herein conferred upon or reserved to County or Contractor is intended to be exclusive of any other remedy or remedies, and each and every such remedy, to the extent permitted by law, shall be cumulative and in addition to any other remedy given hereunder or now or hereafter existing at law or in equity or otherwise.

b. Liquidated Damages. The installation dates of the software set forth in the

Contractor’s response and as mutually agreed upon have been fixed so that the utilization of the services is consistent with the timing schedules of the County’s programs. If any portion of the application software is not installed and accepted by the dates specified, the delay will interfere with the proper operation of the County’s critical accounting systems to the loss and damage of the County. From the nature of the case, it would be impracticable and extremely difficult to fix the actual damage sustained in the event of any such delay. The County and Contractor, therefore, presume that in the event of any such delay the amount of damage which will be sustained from a delay will be the amount set forth in this paragraph, and they agree that in the event of any such delay, Contractor shall pay such amount as liquidated damages and not as a penalty. The County, at its option for amounts due the County as liquidated damages, may deduct such from any money payable to Contractor pursuant to the Contract, or may bill Contractor as a separate item. The County shall notify Contractor in writing of any claim for liquidated damages pursuant to this paragraph on or before the date the County deducts such sums from money payable to Contractor. The amount of damages as it pertains to this paragraph shall be an amount of $ ________ per day for each calendar day of delay in installation but not for more than 180 calendar days. The amount of damages as it pertains to this paragraph shall be an amount of $ ________ per day for each calendar day Contractor fails, after installation, to meet acceptance standards as stated in Paragraph ___, but not for more than _____ days.

33.20 TERMINATION OF MAINTENANCE AGREEMENTS

Most Software Agreements provide termination clauses for breach and default. Some

require the return of the software in the event that successive Maintenance Agreements are not

undertaken. These clauses functionally eliminate the term of the license or the real nature of a

perpetual license. Consideration should be given to negotiating a clause in the contract that

allows the continuance of the usage of the software for the term of the primary license regardless

of whether successive Maintenance Agreements are undertaken. This allows the County to use a

system as “legacy” system for the term of the license or, in the case of a perpetual license, as long

as necessary until they have obtained different software.

33.21 USER LICENSES

There are several means of determining user licenses and their number. This often is a

matter that can be negotiated particularly in circumstances in which individuals have access to the

application but are not core users. Prior to negotiation and RFP, the County should strategically

determine what method of licensure best suits their present and future needs. Are there other

entities that may wish to access the system on a read only basis? What impact would they have on

a concurrent user license? Is there a potential of integration of this application with other

agencies within or without the County? How would that impact user and primary license fees,

and the Maintenance Agreement that is calculated licenses per seat may allow for portability and

usage per user at different locations including by remote usage? This is an area in which

aggressive negotiation is frequently required and has proven to often be successful. Recently,

particularly as we move to web-based systems, MIPS capacity plays a role in defining authorized

use and the amount charged for license fees.

33.22 MIPS CAPACITY

“MIPS capacity” shall mean the aggregate computing power (expressed in millions of

instructions per second and rounded to the next even multiple of ten) of all computers located at

the licensee’s sites or which can remotely access such computers irrespective of the platform

designation of the hardware or operating systems providing that such remote computer is capable

of accessing, using, executing, or benefitting from the licensed programs.

33.23 TRANSFERRING PLATFORMS

Care should be taken in evaluating systems applications value added third party software

and other aspects of your system to determine what happens in the event you upgrade your existing

platform to a newer and usually larger platform. This is particularly true in instances in which

external access is granted to the general public, certain agencies, or for some form of remote or

external usage from existing users. Suitable language should be developed that in a common

sense manner protects the interest of the County.

XXXIV. SELECTION OF TECHNOLOGY VENDORS

It is often thought that a “Request for Proposals” (RFP) is necessary in the selection of a

technology vendor, but in fact, it is not required. In circumstances where you have already

identified a vendor with an established reputation or where there is a bargaining advantage in

dealing with a particular vendor, you may wish to directly negotiate with that vendor. If

negotiations under the circumstances prove to be unsuccessful, you may still proceed with a more

formal process for selecting a vendor.

The process of negotiating directly with a particular technology vendor is often referred to

as the “Request for Information” (RFI) process. The RFI process may be valuable regardless of the

ultimate process selected, as it may provide you with detailed information for project development

that you may not have, while not binding you to a particular vendor from which information is

received. The RFI process can offer very cost efficient means for developing a contractual

relationship with a technology vendor.

The RFP process is often more time consuming than the RFI process and often delays

projects significantly, but can still be the ultimate wise process, particularly when there is no strict

time line and the relevant technology project is underdeveloped from an engineering perspective.

One of the advantages to the RFP process is that it de-politicizes the vendor selection process and

helps potential technology vendors make a more structured and stringent review of proposals,

assist in contract development, and may even ultimately save in costs because of the substantial

effort undertaken by the technology vendor and the County to fully understand the nature of the

technology project, fundamentally completing some portions of the project plan.

Once the RFP process is undertaken however, the County is vulnerable to liability for any

arbitrary decision relating to a final vendor selection and contract offer, particularly if competitive

negotiations are a part of the final process. For this reason the County Attorney’s Office should be

involved throughout any negotiations following an RFP process.

The following is an outline for drafting the essential sections of a Request for Proposal

(“RFP”) for County technology initiatives.

A. PURPOSE OF REQUEST

The “Purpose of Request” section should provide a brief executive summary of the intent

of the RFP.

B. BACKGROUND INFORMATION

The “Background Information” section should provide an executive summary of the

technology initiative covered by the RFP.

C. SUBMISSION OF PROPOSALS

The “Submission of Proposals” section should set forth the general requirements on how

the RFP is to be submitted for consideration. For example, whether the RFP is to be

submitted in hard copy or by electronic copy, or both, to whom or what office the proposal

is to be submitted, and what time lines or deadlines are set regarding submissions.

D. RFP PROCESS TIME LINE

The “RFP Process Time line” section should provide a short, concise chronological time

line of events comprising the RFP process.

E. PROJECT TIME LINE The “Project Time line” section should provide a short, concise, chronological time line of

the events to be satisfied under the implementation of the project.

F. SCOPE OF PROJECT

The “Scope of Project” section should provide an overview of the various tasks and items

involved in the implementation of the project. Each task and item should be separately

summarized within this section.

G. DEFINITIONS

The “Definitions” section should itemize all specific terms of art which are relevant for

mutual understanding necessary to insure mutually acceptable performance under the

contract.

H. RULES GOVERNING COMPETITION

The “Rules Governing Competition” section should summarize the general tasks and items

relating to the competitive process in order for respondents to the RFP to respond in a

uniform fashion under uniform expectations for the preparation and submission of their

responses to the RFP.

I. SELECTION OF PROPOSAL

The “Selection of Proposal” section should outline the process on how the submissions will

be uniformly reviewed and evaluated and accordingly rated for selection.

J. CONTENT OF PROPOSAL

The “Content of Proposal” section should outline each of the requirements and their related

items to be addressed in the body of the proposal, with a brief description of the

requirement and items where necessary.

K. GENERAL REQUIREMENTS REGARDING CONDUCT OF WORK

The “General Requirements Regarding Conduct of Work” section should outline the

outcome measures and their respective methodologies for reporting the status of the work

product to be produced as described under the RFP.

L. GENERAL PROVISIONS

The “General Provisions” section should set forth standardized County contract provisions

not specific or otherwise materially related to the purpose of the contract. In addition, this

section should also reference any attachments which are to be incorporated into the RFP

as obligations of the respondents to the RFP.

M. APPENDIX

The “Appendix” section should contain all of the relevant attachments which are to be

incorporated and made a part of the body of the RFP in the General Provisions section of

the RFP.

I. Joint Powers Contracts

1990 Joint Powers Agreement Regional Drug Task Force

THE PARTIES TO THIS AGREEMENT are units of government responsible for the

enforcement of controlled substance laws in their respective jurisdictions. This agreement is

made pursuant to the authority conferred upon the parties by Minnesota Statutes Ch. 13D

NOW, THEREFORE, the undersigned governmental units, in the joint and mutual

exercise of their powers agree as follows:

1. Name. The parties did establish in 1988 and hereby maintain the Regional Drug

Task Force.

2. General Purpose. The purpose of this joint powers agreement is to establish an

organization to coordinate efforts to apprehend and prosecute drug offenders.

3. Members. The members of this Agreement shall consist of the following units of

government:

4. State and Local Assistance for Narcotics Control Program. The City of

_______________, acting on behalf of the Regional Drug Task force and its members, shall

apply for funding under the State and Local Assistance for Narcotics Control Program (“grant

funds”). The City Manager shall be the “authorized official” as defined in the general policies

and procedures for the program.

5. Administrative Board.

5.1 The governing body of the Task Force shall be a Board consisting of five

members. The police chief or sheriff of each party shall appoint one board member to serve at

the chief’s or sheriff’s pleasure. Board members must be full-time supervisory peace officers of

the jurisdiction that appoints the Board members.

5.2 Board members shall not be deemed employees of the Task Force and

shall not be compensated by it.

5.3 In January of each year, the Board shall elect from its members a chair, a

vice-chair, a secretary/treasurer, and such other officers as it deems necessary to conduct its

meetings and affairs. Such rules and regulations may be amended from time to time at either a

regular or a special meeting of the Board provided that at least ten (10) days’ prior notice of the

meeting has been furnished to each Board member. The Board shall operate by a majority vote

of all members present. A quorum of three (3) members shall be required for all meetings.

6. Powers and Duties of the Board.

6.1 The Board will formulate a program to carry out its purpose.

Joint Powers Agreement Regional Drug Task Force 1-1

6.2 The Board will coordinate intelligence between the members and the Task

Force.

6.3 The Board shall appoint and supervise the Agent-In-Charge of the Task

Force.

6.4 The Board may cooperate with other federal, state, and local law

enforcement agencies to accomplish the purpose for which it is organized.

6.5 The Board may make contracts, incur expenses and make expenditures

necessary and incidental to the effectuation of its purpose and consistent with its powers.

6.6 The Board shall cause to be made an annual audit of the books and

accounts of the Task Force and shall make and file a report to its members which includes the

following information:

(a) the financial condition of the Task Force;

(b) the status of all Task Force projects;

(c) the business transacted by the Task Force; and

(d) other matters which affect the interests of the Task Force.

6.7 The Task Force’s books, reports, and records shall be open to inspection

by its members at all reasonable times.

6.8 The Board may recommend changes in the Agreement to its members.

6.9 The members may not incur obligations or enter into contracts that extend

beyond the terms of the Agreement.

6.10 The Board may decide to purchase liability insurance which shall be

payable from Task Force funds.

7. Finances.

7.1 The members intend to fund the 1990 cost of operation of the Task Force

totaling $_________ as follows: (1) $__________ from 1990 grant funds, and (2) $__________

in matching funds from member cities and county. The matching funds shall fund the continued

cost of maintaining the replacement officers hired during 1988 for the officer assigned by each

member to the Task Force.

7.2 The Task Force’s funds may be expended by the Board in accordance with

this Agreement in a manner determined by the Board. The Board shall designate the City of

_______________ to act as depository for the Task Force’s funds. In no event shall there be a

disbursement of Task Force funds from the city without the signature of the Task Force

secretary/treasurer.

7.3 The Board shall receive a monthly financial report of all expenditures and

receipts, and current fund balances from the secretary/treasurer.

Joint Powers Agreement Regional Drug Task Force 1-2

7.4 The members shall contribute their grant funds and required matching

funds to operate the Task Force. The required matching funds from each member will be used to

pay the 1990 salary of the officer hired in 1988 to replace the officer assigned to the Task Force.

7.5 The Board shall adopt a budget based upon grant funds, member matching

funds and money made available from other sources. The Board may amend the budget form

time to time.

7.6 The Board may not incur debts.

7.7 The Task Force’s obligation to reimburse members for any expense,

furnish equipment, and the like is contingent upon the Task Force receiving at least $_________

in grant funds in 1990. If grant funds less than that amount are received, the Board may reduce

the level of expense reimbursement and cut back on equipment and other purchase otherwise

required by this Agreement.

8. Agents.

8.1 Each member shall assign one experience, licensed peace officer to serve

on the Task Force on a full-time basis.

8.2 Agents shall not be employees of the Task Force. Agents shall remain

employees of the member that has assigned them to the Task Force and shall be paid by that

member, not the Task Force.

8.3 Agents will be responsible for drug investigation, including intelligence

management, case development, and case charging. Agents will also assist other agents in

surveillance and undercover operations. Task Force agents will work cooperatively with

assisting agencies.

8.4 Agents will be supervised by the Agent-in Charge.

8.5 The member appointing the Agent shall furnish the agent a weapon and a

vehicle and pay any lease payments, insurance, maintenance, and operating costs of the vehicle.

8.6 The members shall maintain the officer positions hired in 1988 to replace

the officer assigned to the Task Force.

9. Agent-In-Charge.

9.1 From the agents assigned by members, an Agent-In-Charge shall be

appointed by the Board and serve at its pleasure. The Agent-In-Charge must be a full-time,

licensed peace officer of a member and shall be paid a supervisor’s salary by that member. The

difference between the rate of pay, if any, the Agent-In-Charge would normally have received

from the member and the rate of pay for the member’s first line supervisor, however, will be paid

by the Task Force. The Agent-In-Charge shall remain an employee of the member city or

county.

Joint Powers Agreement Regional Drug Task Force 1-3

9.2 The Agent-In-Charge shall be in charge of the day-to-day operation of the

Task Force, including supervising the Task Force’s assigned personnel, subject to direction

received from the Board. The Agent-In-Charge is responsible for staffing, scheduling, case

assignment, case management, record keeping, informant management, buy fund management,

petty cash management, and intelligence management. The Agent-In-Charge will be responsible

to keep the Board updated as to the Task Force’s activity, which would include major case

development within member jurisdictions. The Agent-In-Charge will supervise the drafting and

execution of all search warrants initiated by the Task Force Unit and will work cooperatively

with the agencies with venue over the case. The Agent-In-Charge will be responsible for all buy

fund monies and petty cash funds and will provide Board members with a monthly accounting of

all funds disbursed and a written summary of activity with the unit.

9.3 The Agent-In-Charge may exclude agents from further Task Force

involvement subject to review by the Board and approval of the member that assigned the agent

to the Task Force.

10. Forfeitures, Seizures and Fines. Items that are seized by the Task Force may be

used to support Task Force efforts. The use of these items must be approved by the Board. In

the case of Federal forfeiture actions, established Federal Rules shall be followed. All remaining

forfeited items shall be divided equally among Task Force members. Fine or restitution monies

ordered paid to the Task Force by Court Order shall be used to offset equipment or operating

costs of the Task Force not funded by grant or matching funds.

11. Headquarters. The City of _________________will furnish the Task Force,

without costs, office space at _______________________________. All utilities, including

electricity, heat, air conditioning, and the like shall also be furnished to the Task Force by

_______________ without cost.

12. Indemnification. Each member shall fully indemnify and hold harmless the

other members against all claims, losses, damage, liability, suits, judgments, costs and expenses

by reason of the action or inaction of its employees assigned to the Task Force. This agreement

to indemnify and hold harmless does not constitute a waiver by any member of limitations on

liability provided by Minnesota Statutes, Chapter 466.

13. Duration.

13.1 This Agreement shall take full force and effect when all five potential

members, listed in paragraph three of the Agreement, sign it. All members need not sign the

same copy. The signed Agreement shall be filed with the city clerk of the City of

_________________, who shall notify all members in writing of its effective date. With the

exception of paragraph 4 of this Agreement, implementation is also contingent upon receipt of

Joint Powers Agreement Regional Drug Task Force 1-4

grant funds. Prior to the effective date of this Agreement, any signatory may rescind its

approval.

13.2 This Agreement shall terminate twelve (12) months from its effective date

unless extended by further written agreement of the parties.

13.3 This Agreement may be terminated at any time by the written agreement

of 3/5 of the Board members.

13.4 Upon termination of this Agreement, all property of the Task Force shall

be sold or distributed to the members in proportion to the contributions of each member of this

Agreement.

IN WITNESS WHEREOF, the undersigned governmental units, by action of their

governing bodies, have caused this Agreement to be executed in accordance with the authority of

Minnesota Statutes Ch. 13D.

Approved by the City Council CITY OF _______________________, 20__. BY Date of Signature

Attest

Date of Signature Approved by _________ County Board COUNTY OF Resolution No. 89-829 BY (Sheriff) Date of Signature APPROVED AS TO FORM & EXECUTION BY (Assistant County Attorney) Date of Signature Approved as to Execution by County BY (Assistant County Attorney) Date of Signature

Joint Powers Agreement Regional Drug Task Force 1-5

Joint Powers Agreement Law Enforcement Mutual Assistance

THIS AGREEMENT, entered into by and between _______________ COUNTY,

hereinafter referred to as “County,” and the CITY OF _________________, hereinafter

referred to as “City,” both parties being governmental and political subdivisions of the

State of Minnesota.

WITNESSETH:

WHEREAS, both County and City employ full-time law enforcement officers for

the purpose of maintaining law and order within their respective jurisdictions and

affording police protection to their respective citizens; and

WHEREAS, the law enforcement officers of both the County and City are vested

with powers appropriate to accomplish these purposes; and

WHEREAS, both the County and City are desirous of having their respective law

enforcement officers extend their services beyond their respective jurisdictions for the

purpose of providing assistance in emergency situations to enforce the statutes and

ordinances enacted by the State of Minnesota and ordained by the County and City,

respectively;

NOW, THEREFORE, the County and City, pursuant to the authority contained in

Minnesota statutes, Section 471.59, commonly known as the Joint Powers Act, in order

to accomplish the foregoing purposes, agree as follows:

1. COUNTY TO ASSIST

County shall direct its law enforcement officers to provide assistance to the City

police officers in maintaining law and order in City and providing police

protection to the citizens of City, as such assistance may be requested from time

to time by the Chief of Police of City or by any other City police officer. Such

assistance shall be provided by County law enforcement officers in the manner

appropriate under the circumstances.

2. CITY TO ASSIST

City shall direct its law enforcement officer to provide assistance to County law

enforcement in maintaining law and order in the County and providing police

protection to the citizens of County, as such assistance may be requested from

Joint Powers Agreement Law Enforcement Mutual Assistance 2-1

time to time by the Sheriff of the County or by any other County law enforcement

officer. Such assistance shall be provided by City police officers in the manner

appropriate under the circumstances.

3. OFFICERS TO PROTECT OWN JURISDICTION FIRST

It is the express understanding of the parties hereto that the first and foremost

priority of the law enforcement forces of both jurisdictions is to maintain law and

order and provide police protection within their respective jurisdictions. It is

therefore expressly understood that the assistance contracted for by this

Agreement shall be provided only if the officers requested to provide assistance

can provide such assistance without unduly jeopardizing the law and order or

police protection within their respective jurisdictions.

4. OFFICERS TO RETURN TO OWN CITY WHEN NEEDED; LIMITATIONS

If at any time while the law enforcement officers of one party are giving

assistance to the law enforcement officers of the other party it becomes apparent

that the law and order and police protection of the party whose officers are giving

assistance is jeopardized, such officers may immediately terminate the giving of

such assistance and return to their jurisdiction; provided that such officers shall

not terminate the giving of such assistance if the lives of the officers of the party

which requested assistance would be put in jeopardy.

5. NO LIABILITY FOR FAILING TO ASSIST

It is expressly understood that neither the County nor City shall be in any way

liable for any claim based upon a failure for any reason of the law enforcement

officers of one jurisdiction to provide assistance when requested by the law

enforcement officers of the other jurisdiction.

6. REQUESTING OFFICERS AUTHORITY OVER ASSISTANT OFFICERS

It is expressly understood and agreed that the law enforcement officers who

respond to a request for assistance by the law enforcement officers of the other

party shall follow the orders and commands of the senior law enforcement officer

then on duty of the party requesting assistance during the time such assistance is

being given.

Joint Powers Agreement Law Enforcement Mutual Assistance 2-2

7. RADIO COMMUNICATIONS

The senior law enforcement officer, then on duty of the requesting agency, will

designate which radio channel will be used by personnel during the period in

which assistance is provided.

8. POWER OF OFFICERS

The Joint Exercise of Powers Act entitles officers to the same authority they have

in their own jurisdiction when assisting another agency under the authority of this

Agreement. The senior law enforcement officer, then on duty with the requesting

agency, may assign personnel from the provider agency to any appropriate duties,

including but not limited to, effecting arrests, transporting prisoners, processing

prisoners, and staffing temporary detention facilities.

9. NO PAYMENT TO ASSISTING JURISDICTION OR OFFICERS

Neither the County nor city shall be responsible or liable for the payment of

wages or other remuneration to the other party or to the other party’s law

enforcement officer(s), notwithstanding the fact that such law enforcement

officer(s) may from time to time, pursuant to this Agreement, provide police

protection services to the party hereunder who is not the regular employer of such

law enforcement officer(s).

10. NO LIABILITY TO ASSISTING JURISDICTION FOR DAMAGES

It is expressly understood and agreed that neither the County nor City shall be

responsible or liable in any way for any claim for injury or death of any law

enforcement officer in the employ of the other party or for any damage to the

equipment owned by the other party notwithstanding the fact that such law

enforcement officers and equipment may from time to time, pursuant to this

Agreement, provide assistance to the party who is not the employer of the law

enforcement officer or the owner of the equipment.

11. CONSTRUCTION

This Agreement is expressly intended to authorize requests for assistance only in

emergency situations and nothing herein shall be construed as authorizing

requests for assistance by one party of the other party for patrols and other routine

activities.

Joint Powers Agreement Law Enforcement Mutual Assistance 2-3

12. DURATION

This Agreement shall remain in full force and effect until it shall be terminated in

the manner provided herein.

13. TERMINATION

This Agreement may be terminated by either party upon thirty (30) days’ written

notice to the other party. Such notice shall be delivered to the Mayor or Clerk of

the City and to the Clerk of the County Board. It is agreed that the prior

agreement between the parties covering the same subject matter is hereby

terminated.

IN WITNESS WHEREOF, the County and City have hereunto set their hands and seals this _______ day of _____________, 20__. CITY OF COUNTY OF BY: BY: Its Mayor Chair, County Board ATTEST: By: Sheriff BY: City Clerk APPROVED AS TO FORM & EXECUTION COUNTERSIGNED: BY: Assistant County Attorney BY: City Auditor

Joint Powers Agreement Law Enforcement Mutual Assistance 2-4

Joint Powers Agreement Establishing a Board of Directors

To Organize and Govern the South Metro Hazardous Materials Response Team

The parties to this Agreement are governmental units of the State of Minnesota. This Agreement is made pursuant to the authority conferred upon the parties by Minnesota Statute Ch. Minn. St. section 471.59. 1. General Purpose. The purpose of this Joint Powers Agreement is to establish a Board of Directors to organize, govern, train, equip, and maintain a South Metro Hazardous Material Response Team in order to mitigate the effects of a hazardous materials incident which is beyond the resources of any member governmental unit, and/or which, in the reasonable judgment of the Incident Commander poses a threat to life and property. 2. Definitions. 2.1 “Additional Member” - A signatory of this Joint Powers Agreement who is not an Initial Member, having joined after the first year of its existence. 2.2 “Board” - The Board of Directors established by this Agreement. 2.3 “Director” - A member of the Board of Directors. 2.4 “Hazardous Materials” - Toxic substances which could cause serious health effects, as defined pursuant to 40 C.F.R. part 302. 2.5 “Hazardous Materials Incident” - A situation that has developed involving the accidental release of a hazardous material which is beyond the resources of any Member Governmental Unit. 2.6 “Hazardous Materials Response Team” or “Response Team” - A group of firefighters already employed by Member Governmental Units, who are designated by the Board of Directors and who have the training and equipment necessary to respond to and control a Hazardous Materials Incident. 2.7 “Incident Commander” - The individual of a Member Government Unit responsible for decisions associated with the response operation of any incident. 2.8 “Initial Member” - An original signatory of this Joint Powers Agreement as identified in Section 3.1. 2.9 “Member” - Any city, township, or county which is a signatory to this Agreement.

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3. Membership. 3.1 The Initial Members shall be: 3.2 No change in governmental boundaries, structure, organizational status or character shall affect the eligibility of any Member listed above to be represented on the Board as long as such Member continues to exist as a separate political subdivision.

4. Board of Directors.

4.1 The Response Team shall be governed by a Board of Directors which shall consist of one (1) Director appointed by the governing body of each Initial Member listed in Section 3.1 above. Each Member may designate an alternate for its appointed Director. 4.2 Directors shall serve without compensation from the Board. This shall not prevent a Member from providing compensation to a Director for serving on the Board.

5. Quorum/Voting.

5.1 A majority of all of the Directors shall constitute a quorum. A simple majority vote of the Directors present at a meeting with a valid quorum shall be required for the Board to take action, unless otherwise provided in this Agreement or by law. 5.2 There shall be not voting by proxy. Except as otherwise authorized in this Agreement, all votes must be case by the Director or designated alternate at a Board Meeting. Each Director shall have on (1) vote.

6. Officers. 6.1 The officers of the Board shall be a Chair, Vice-Chair and Secretary/Treasurer. 6.2 At its first meeting, the Board shall elect a Chair, a Vice-Chair, and a Secretary/Treasurer who shall serve out the following initial terms of office:

Chair to serve through December 31 of the year when first elected and until his/her successor is elected.

Vice-Chair to serve through December 31 of the year following election and until his/her successor is elected.

Secretary/Treasurer to serve through December 31 of the year, two years after

election and until his/her successor is elected.

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At the meeting prior to completion of the initial term(s) and at the completion of every term thereafter, a Director shall be elected to each respective office for a three-year term.

6.3 A Director shall be elected in the same manner as above to fill out an unexpired term of any office which becomes vacant.

7. Meetings. 7.1 The Board shall meet at least annually on a schedule determined by the

Board. 7.2 Meetings of the Board may be called by the Chair or upon written request of a majority of the Directors. 7.3 The Board may elect or appoint such other officers as it deems necessary to conduct its meetings and affairs.

8. Powers and Duties of the Board. The powers and duties of the Board include, but are not limited to, the following: 8.1 The Board shall prepare, adopt, and implement a plan to provide response to a Hazardous Material Incident according to the terms and conditions herein. 8.2 The Board shall establish, train, equip, maintain and govern a South Metro Hazardous Materials Response Team. 8.3 The Board shall pay for all training necessary for the Response Team to meet and maintain State and Federal Occupational Safety and Health Administration (OSHA) guidelines. 8.4 The Board shall purchase and maintain equipment necessary for the performance of its duties and the duties of the Response Team. 8.5 The Board may research and make recommendations to the Members regarding other matters related to the Response Team’s purposes. 8.6 The Board may consult with persons knowledgeable in hazardous materials response, such as research organizations, educational institutions, other political subdivisions, regulatory organizations, technical experts, and any other persons who can provide pertinent information. 8.7 The Board may cooperate or contract with the State of Minnesota, any political subdivision, federal agencies or private or public organizations to accomplish the purposes for which it is organized.

Joint Powers Agreement Establishing a Board of Directors To Organize and Govern the South

Metro Hazardous Materials Response Team

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8.8 The Board may contract with other political subdivisions to provide the services of the Response Team. The Board may enter into a mutual aid agreement with other similar Hazardous Materials Response Teams of other political subdivisions. 8.9 The Board may contract for or purchase such insurance as the Board deems necessary for the protection of the Board, the Members, the Response Team, and its Property. 8.10 The Board may accumulate reserve funds for the purposes herein mentioned and may invest funds of the Response Team not currently needed for its operations. 8.11 The Board may collect money, subject to the provisions of this Agreement, from its Members and from any other source(s) authorized by law. 8.12 The Board may make contracts, employ consultants, incur expenses and make expenditures necessary and incidental to the effectuation of its purposes and powers, in conformance with the requirements applicable to contracts and purchases of all of the Members. 8.13 The Board shall cause to be made an annual audit of the books and accounts of the Board and shall make and file a report to its Members at least once each year. Strict accountability of all funds and report of all receipts and disbursements shall be made. 8.14 The Board's books, reports and records shall be available for and open to inspection by its Members at all reasonable times. The Board's records shall be available for inspection by the public pursuant to Minnesota Statutes, Chapter 13. 8.15 The Board may appoint such committees as it deems necessary to exercise the powers of the Board in accordance with by-laws adopted by the Board and as allowed by law. 8.16 The Board may exercise all other lawful powers necessary and incidental to the implementation of the purposes and powers set forth herein, including, without limitation, the adoption of by-laws to govern the functioning of the Board, provided that no by-law or action of the Board shall be contrary to the terms of this Agreement. 9. Response Team Limitation. 9.1 The Response Team shall not provide services to Non-Members except as

herein provided in Section 8.8. 10. Additional Members. 10.1 Other political subdivisions may become a party to this Agreement upon approval of a 2/3 majority of the Board entitled to vote. The new Member shall sign a copy of this Agreement. Existing Members shall not be required to resign.

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10.2 Members joining after the first year of this Agreement shall be Additional Members and shall not be entitled to appoint a Director to the Board but shall have all the other rights and privileges of Membership. 10.3 The Board may require Additional Members to pay a fee deemed appropriate by the Board. Said fee shall take into consideration the expenditures of the Board to date to train and equip a Response Team as well as ongoing expenses. The Board may allow this fee to be paid over one or more years. 11. Decontamination Team. 11.1 Each Member that has a fire department shall train sufficient firefighters to have not less than seven (7) responders available at any given time to function as part of a decontamination team that can assist the Response Team. 12. Contributions to General Administration. 12.1 Each Member agrees to contribute each year to a general fund. The annual contribution by each Member shall be determined in accordance with the following formula:

Population of Member x Budget Population of all Members Population shall be determined in accordance with the most current estimate of the Metropolitan Council. County shall be responsible to fund unincorporated areas. 12.2 The initial contribution by each Member shall be as follows: The initial contribution shall be paid within sixty (60) days after the effective date of this Agreement. 13. General Administration. 13.1 Contributions to the general fund are to be used for general administration purposes including, but not limited to: purchase of equipment, Response Team training expenses, reimbursement of salaries, supplies, insurance and bonds. The Response Team funds may be expended by the Board in any manner determined by the Board, but the method of disbursement shall agree, as far as practicable, with the method provided by law for the disbursement of funds by the Members. 13.2 On or before June 1 of each year, the Board shall, by approval of 3/4 of those eligible to vote, adopt a proposed general administrative budget for the ensuing year and decide upon the total amount necessary for the general fund. The Secretary/Treasurer of the Board shall certify the budget on or before June 1 to the clerk of the governing body of each Member, together with a statement of the proportion of the budget to be contributed by each Member. By July 1 of each calendar year, the governing body of each Member shall approve or

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object to the proposed budget and the Members' financial contribution and give notice of its action to the Board. The budget shall be deemed approved by a Member in the absence of action by August 1. Final Action adopting a budget for the ensuing calendar year shall be taken by the Board on or before September 15 of each year. Each Member's contribution shall be paid by November 30 or within sixty (60) days of adoption of the budget, whichever is later. 13.3 Any Member which has objected to its financial contribution as stated in the proposed budget may withdraw from this Agreement by filing with the Chair a written notice of intent to withdraw by August l, of the year preceding the year for which the budget is proposed. The effective date of withdrawal shall be December 31 of the proposed budget year. Any Member formally withdrawing is still obligated to pay its contribution according to the terms of this Agreement for the proposed budget year but shall have no further liability or obligation to the Members except as to actions, events or responsibilities arising or occurring before the effective date of withdrawal. Any Member withdrawing under this provision shall not be entitled to any refund from the Board. 14. Duration. 14.1 Notwithstanding Section 13.3, each Member agrees to be bound by the terms of this Agreement until (date) . 15. Termination. 15.1 This Agreement may be terminated prior to (date) by the written agreement of 2/3 of the Members. Any Member may petition the Board to terminate this Agreement. Upon 30 day's notice in writing to the clerk of the governing body of each Member, the Board shall hold a hearing and upon a 2/3 vote of all Directors eligible to vote, the Board may by resolution recommend that the Agreement be terminated. The resolution shall be submitted to the governing body of each Member and if ratified by 2/3 of the governing bodies of all Members within sixty (60) days, the Board shall terminate the Agreement, allowing a reasonable time to complete work in progress and to dispose of personal property owned by the Board or Response Team. 15.2 Upon dissolution of The South Metro Hazardous Materials Response Team, all property purchased or owned pursuant to this Agreement shall be sold and the proceeds thereof, together with monies on hand, shall be distributed to the current Members. Such distribution of assets shall be made in proportion to the total contributions by the respective Members over the entire duration of this Agreement. The Board shall continue to exist after dissolution for such period, no longer than six months, as is necessary to wind up its affairs, but for no other purpose. 16. Default. 16.1 Upon the failure of any Member to contribute its financial obligation in a timely manner, or to fulfill any of its other material obligations under this Agreement the Board may expel a Member upon 2/3 vote. If an Initial Member is expelled for any reason and later

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desires to rejoin, such Member will be considered an Additional Member and will not be entitled to appoint a Director. 17. Effective Date. 17.1 This Agreement shall be in till force and effect when all Initial Members, (identified in Section 3.1 of this Agreement), sign this Agreement. All Members need not sign the same copy. The signed Agreement along with a certified copy of the resolution authorizing the Agreement, shall be filed with the City Manager of the City of , who shall notify all Members in writing of its effective date and set a date and place for the Board's first meeting. Prior to the effective date of this Agreement, any signatory may rescind its approval. 18. Amendments. 18.1 Any Member may petition the Board or the Board on its own initiative may recommend changes in this Agreement to its Members. An Amendment to this Agreement shall become effective upon written agreement of 2/3 of the Members. IN WITNESS WHEREOF, the undersigned governmental units, by action of their governing bodies, have caused this Agreement to be executed in accordance with the authority of Minnesota Statute 471.59. APPROVED AS TO FORM: COUNTY OF BY: Assistant County Attorney Chairperson of Board Date of Signature Date of Signature Attest Auditor Date of Signature APPROVED AS TO FORM: CITY OF , MN City Attorney Mayor Clerk

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Joint Powers Agreement Establishing a Board of Directors To Organize and Govern the South

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Agreement for “A” & “B” County Waste Management

THIS AGREEMENT is entered into this _________ day of _______________, 20__, by and between "A" COUNTY and “B” COUNTY. WHEREAS, "A" and "B" Counties recognize that there is a serious and growing problem with the land disposal of unprocessed solid waste within the metropolitan area; and WHEREAS, it is the stated policy of the State of Minnesota, under the Waste Management Act of 1980, to recover materials and energy from waste and ban the land filling of unprocessed waste in the Metropolitan Area by the year 1990; and WHEREAS, the Metropolitan Council has established landfill abatement goals for "A" and "B" Counties which emphasize the development of resource recovery facilities to incinerate or compost waste; and WHEREAS, both "A" and "B" Counties have separately sought proposals for resource recovery projects and have found limited technologies, equipment vendors, and markets for the separate counties' waste streams; and WHEREAS, "A" and "B" Counties share a mutual boundary as well as the need for a method for the final disposal of their waste; and WHEREAS, participating together in the planning, review, or development of a resource recovery facility to process the combined waste streams of "A" and "B" Counties may result in substantial monetary savings for the citizens and governments of both counties; NOW, THEREFORE, in consideration of the mutual promises and benefits that each party shall derive herefrom, "A" and "B" Counties hereby enter into this Agreement for joint administration of the feasibility, implementation phases, and vendor negotiation of a resource recovery project pursuant to Minn. Statute section 471.59. A. General Scope of Implementation Phase With the feasibility phase of the parties' Agreement completed, the general purpose of this Agreement is implementation of the project. Implementation includes, but is not limited to: 1. Vendor negotiations 2. Finalizing grant arrangements 3. Financing arrangements 4. Siting The Implementation Phase is intended to provide for the activities of the parties up to the issuance of the notice to proceed with construction.

Joint Powers Agreement “A” & “B” County Waste Management 4-1

B. Administrative Structure The Advisory Committee ("Advisory Committee") shall consist of two Commissioners from "A" County and two Commissioners from "B" County. The two "B" County representatives shall be appointed by the "B" County Board of Commissioners and the two "A" County Commissioners by the "A" County Board of Commissioners. The Advisory Committee shall have the responsibility of reviewing and directing all necessary actions provided that any final action would require the approval of each separate County Board. The Advisory Committee shall meet on an as needed basis, but no less frequently than quarterly. C. Negotiating For the purpose of facilitating this Agreement, Negotiating Team (N-Team) is hereby created. The N-Team shall also have such powers and duties as further set out in this Agreement below. The N-Team shall consist of the "A" County Administrator, the "B" County Administrator, the "A" County Waste Program Coordinator, the "B" County Solid Waste Officer, and a representative of the County Attorney's Office from each County. 1. Functions The N-Team shall oversee and carry out the activities included within the scope

of this Agreement and such other activities as may be necessary to carry out the purposes of this Agreement.

The N-Team shall report on the progress of the resource recovery project from time to time as directed by the Advisory Committee. The N-Team shall provide initial review of all issues arising out of the implementation phase.

2. Staff Advisory staff to the N-Team may include solid waste planning staff, and

representatives from the Budgeting and Accounting Offices of each County. Staff from other County departments may also serve as advisory staff as needed.

D. Consultants The necessity of the expertise of consultants for a project of this size and nature isrecognized by the parties. It is understood that the following consultants have been retained by "B" County, as lead agency, to assist in the process:

Joint Powers Agreement “A” & “B” County Waste Management 4-2

Project Manager: Negotiator: Appraisals: Risk Management: Technical and Engineering Components: Financial Components: Environmental Components:

"B" County warrants and represents that all applicable rules, regulations and laws pertaining to the hiring of consultants have been and will be followed. Further, "B" County agrees to provide "A" County an adequate opportunity to review the individual consultant contracts and/or amendments prior to action by the "B" County Board. E. Changes to Administrative Structure "A" and "B" Counties hereby recognize that some further administrative structure in addition to or in place of that created by this Agreement may be necessary. The Counties will determine the nature of any additional administrative structure as necessary to adequately implement this Agreement. F. Division of Payment Responsibility "A" and "B" Counties recognize that responsibility for payment for consultant services and project development should be apportioned between the two Counties. The Counties further recognize that the long term costs associated with facility development and administration should be apportioned as to the amount of waste from each County handled by the facility. However, lacking precise information on these amounts at this time, "A" and "B" Counties agree to divide responsibility for consultant services related to review of vendor proposals and project selection using the following formula, which is roughly based on population: 45% "A" County 55% "B" County It is understood by the parties that in consideration of the anticipated costs of the consultants referred to above, and the direct costs incurred by the Counties, "A" County's contribution is not to exceed $200,000. It is further agreed that the not to exceed figure applicable to "A" County does not include land acquisition costs. G. Term of the Agreement This Agreement commences (date) , and shall terminate (date) , or upon issuance of a notice to proceed with construction.

Joint Powers Agreement “A” & “B” County Waste Management 4-3

H. Miscellaneous 1. In the event that major policy issues not contemplated in this Agreement arise

during the course of the implementation phase, the N-Team shall raise those issues with the Advisory Committee. The Advisory Committee may then bring the issues to the full County Boards if the Advisory Committee deems it desirable or necessary to do so. This Agreement may be amended upon agreement of the two County Boards.

2. This Agreement may be terminated by either party upon resolution of either

County Board served upon the other County Board. Such termination by one County shall not relieve that party of responsibility for costs incurred under this Agreement prior to the termination.

I. Insurance and Indemnification The parties shall obtain and maintain workers' compensation insurance, automobile insurance for County vehicles and general liability insurance for bodily injury, personal injury and property damage to the County officials and employees in the performance of duties arising from this Agreement, and provide certification in evidence of such coverage to the other party. Each County agrees to save and protect, hold harmless, defend and indemnify the other for any and all claims, causes of actions and damages of any nature whatsoever arising from, allegedly arising from or related to the provision of services to the County pursuant to the terms of this Agreement. J. Assignment Neither party to this contract shall assign the contract, nor any interest arising herein, without prior written consent of the other. K. Subcontracts The parties shall not enter into subcontracts for any of the services provided for in this Agreement without prior approval of each County Board. All subcontracts shall be subject to the requirements of this Agreement. L. Amendments and Modifications Any alterations, amendments, deletions and waivers of the provisions of this Agreement shall be valid only when reduced to writing and duly signed by the parties. M. Entire Agreement It is understood and agreed that the entire Agreement of the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties

Joint Powers Agreement “A” & “B” County Waste Management 4-4

relating to the subject matter hereof as well as any previous agreements presently in effect between the parties. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of this day of , 20 . “A” COUNTY “B” COUNTY BY: BY: County Board Chairperson County Board Chairperson BY: BY: County Commissioner County Commissioner Approved as to form Approved as to form and execution: and execution: County Attorney County Attorney

Joint Powers Agreement “A” & “B” County Waste Management 4-5

Family Services Collaborative Joint Powers Agreement

I. INTRODUCTION

This Joint Powers Agreement made and entered into this day of ,

20 , by and between the County of through its social services and public health

departments, Independent School District No. , Community Action Agency and/or

Head Start grantee, the "State Mandated Parties," and community

representatives agree as follows:

WHEREAS, there is a need to cooperate, collaborate and coordinate family-centered

services; and

WHEREAS, there is a need to provide and make accessible services to families and

children living within a large geographic area; and

WHEREAS, the Parties are committed to providing quality services to children and

families across service systems that appreciate, recognize and promote the diversity of

community populations, local needs and priorities; and

WHEREAS, the Parties desire to make these services readily available to their residents;

and

WHEREAS, the Parties desire to improve the planning, coordination and provision of

services to children and families within the area covered by this Agreement; and

WHEREAS, the Parties recognize such services can be appropriately financed,

supported, and managed through a multi-organization joint venture; and

WHEREAS, the Parties agree that all obligations as stated or implied in this agreement

shall be interpreted in light of and consistently with governing state and federal laws;

NOW, THEREFORE, in consideration of the conveyance and mutual agreements

combined herein and pursuant to the foregoing, and to Minn. Stat. § 471.59, the Parties do

hereby establish the Joint Powers Board, having the composition,

powers, and duties provided in this Agreement as follows:

II. PURPOSE

The parties enter into this agreement for the purpose of improving the social,

emotional, educational, and economic environment of children and their families, by creating a

collaborative, integrated, service delivery system.

Joint Powers Agreement Family Services Collaborative 5-1

III. COMPOSITION

Legal Authority of the Collaborative shall be exercised by the Joint Powers

Board, hereinafter referred to as the "Board". The Board shall be composed of duly appointed

individuals representing the following STATE MANDATED PARTIES:

County of :

representative(s) of social services department

representative(s) of public health department

School District(s) (minimum of one)

CAP and/or Head Start Grantee

The Board may also include commonly agreed upon individual(s) representing the

following:

It is understood that at all times the Board must include the representation required by

Minn. Stat § 124D.23, Subd. 1, paragraph (a), selected in accordance with section 124D.23,

Subd. 1, paragraph (c).

All members of the Board shall serve without compensation.

The Board shall elect from its membership a chairperson and such other officers as it

deems necessary for the conduct of its affairs.

Each party participating in this Agreement shall have one vote in the determination of

issues. Decisions will be carried if they have a simple majority. A quorum is necessary to

conduct business that requires a formal vote. A quorum will constitute a simple majority of the

members of the Board.

The Board shall meet at such times or intervals as the Board thinks necessary to conduct

the business of the Collaborative. The Board agrees to set the meeting schedule far enough in

advance, and at times and places that are convenient to all representatives of the Board.

It is expected that Board representatives will participate regularly in board meetings. The

number of permissible absences and the manner in which excessive absences shall be dealt with

shall be determined by the Board.

All meetings of the Board shall be conducted in a manner consistent with the Minnesota

Open Meeting Law, Minn. Stat. Ch. 13D, and amendments thereto.

Board proceedings will be conducted according to the by-laws as determined by the

Board, or pursuant to Roberts Rules of Order and consistent with this agreement.

Joint Powers Agreement Family Services Collaborative 5-2

IV. ADMINISTRATION

EXECUTIVE COMMITTEE

Design and policy oversight authority for the integrated service system to be operated by

the Collaborative shall reside in the Executive Committee, hereinafter referred to as the

"Committee." The Committee shall exercise expenditure authority. Composition of the

Committee shall be determined by the Board. Members of the executive committee must include,

at a minimum, those parties required pursuant to Minn. Stat. § 124D.23.

Expenditures of funds from the Integrated Fund shall be in compliance with policies and

procedures set forth by the fiscal agent.

PERSONNEL

Staff employed by any party and assigned fully to Collaborative duties shall report

directly to the Executive Committee with respect to those duties. Employees shall remain within

the compensation and job classification structure of the employing Party. Benefits as provided by

the employer Party shall be retained, including employee health plan and contributions,

retirement plans and contributions, liability insurance, and workers compensation insurance.

V. POWERS AND RESPONSIBILITIES

The Board, by and through its chosen administrative structure, must:

(1) establish, with assistance from families and service providers, clear goals for

addressing the health, developmental, educational, and family-related needs of children and

youth and use outcome-based indicators to measure progress toward achieving those goals;

(2) establish a comprehensive planning process that involves all sectors of the

community, identifies local needs, and surveys existing local programs;

(3) integrate service funding sources so that children and their families obtain services

from providers best able to anticipate and meet their needs;

(4) coordinate families' services to avoid duplicative and overlapping assessment and

intake procedures;

(5) focus primarily on family-centered services;

(6) encourage parents and volunteers to actively participate by using flexible scheduling

and actively recruiting volunteers;

(7) provide services in locations that are readily accessible to children and families;

(8) use new or reallocated funds to improve or enhance services provided to children and

their families;

(9) identify federal, state, and local institutional barriers to coordinating services

and suggest ways to remove these barriers;

Joint Powers Agreement Family Services Collaborative 5-3

(10) design and implement an integrated local service delivery system for children and

their families that coordinates services across agencies and is client centered. The delivery

system shall provide a continuum of services for children birth to age 18, or birth through age 21

for individuals with disabilities. The collaborative shall describe the community plan for serving

pregnant women and children from birth to age six;

(11) enter into subcontracts with other counties, school districts, special education

cooperatives, municipalities, and other public and nonprofit entities for purposes of identifying

and claiming eligible expenditures to enhance federal reimbursement, or to expand education,

social, health, or health-related services to families and children when consistent with the

purpose of this Agreement;

(12) develop and maintain an accounting and financial management system adequate to

support all claims for federal reimbursement, including a clear audit trail and any provisions

specified in the agreement;

(13) submit an annual report to each of the parties as specified in the agreement;

(14) provide any other information to the fiscal agent to comply with any Agreements or

contracts providing funding for Collaboratives; and

(15) ensure that all parties of the Local Collaborative Time Study (hereinafter /CTS)

complete training in the LCTS.

Vl. FINANCIAL STRUCTURE

The Parties agree to establish an Integrated Fund for the purposes of financing

Collaborative Work Plans and increasing the flexibility of funding sources. The Integrated Fund

will be used to purchase supports, interventions and services for children and families in the

Target Population, to coordinate the provision of supports, interventions and services and to

operate the Collaborative.

Parties agree that the Integrated Fund shall be under the control of the Board and shall be

administered under the Board's control consistent with the provision of this Agreement and the

requirements of federal and state laws.

The members of the Board shall submit on behalf of their respective organizations their

LCTS log sheets to the fiscal agent for submission to the STATE within seven (7) days from the

time the log sheet was to be completed, unless otherwise agreed to by the STATE.

The fiscal agent shall be the County of for purposes of administering

LCTS monies.

The parties agree through their representatives, that the Board shall comply with state and

federal laws and all provisions of the Minnesota Department of Human Services Contract to

Joint Powers Agreement Family Services Collaborative 5-4

participate in the Local Collaborative Time Study dated March 1997, attached hereto as Exhibit

A.

The fiscal agent shall serve as fiscal liaison between the Board and DHS; ensure accurate

and timely cost reporting; combine cost reports for all local organizations participating in the

LCTS into a summary of all collaborative services; establish and maintain reports on the base

level expenditures for LCTS spending and provide reports of such amount to the State when

requested; receive federal reimbursement revenue on behalf of the Board and deposit into the

Integrated Fund within 30 days of receipt.

The fiscal agent shall administer the funds received from grant sources other than LCTS

funds in accordance with the terms of the grant.

The fiscal agent shall ensure the strict accountability of all funds and accurate reporting

of all receipts and reimbursements.

The fiscal agent shall be authorized to make payments upon approval of the Board from

the Integrated Fund.

The parties agree that the fiscal agent is entitled to a five percent (5%) administrative fee

on all monies deposited into the integrated fund subsequent to the effect date of this agreement.

The fiscal agent shall compute the average balance of the Integrated Fund at the end of

each month and credit the fund % interest monthly, which is the equivalent to %

Annual Percentage Yield. This rate shall be reviewed in December of each calendar year and the

interest rate for the following year established.

The parties shall provide the fiscal agent with information necessary to complete and

submit reports to the STATE, when requested, on such matters as anticipated and actual use of

LCTS funds, outcome-based indicators used to determine whether the collaborative is meeting

its goals, or such other items as needed by the STATE to properly administer the LCTS and

comply with all appropriate federal and state laws, rules and regulations. The fiscal agent, with

the information provided by the Board and its own information, shall timely submit these reports,

when requested by the STATE.

The parties shall provide the fiscal agent with information necessary to complete and

submit LCTS cost reports to the STATE within 10 days of the end of the quarter. The term

"quarter" shall mean a period of three months ending on the last day of March, June, September

and December. The fiscal agent shall submit to the STATE the completed LCTS cost reports

within 20 days after the end of the quarter.

Joint Powers Agreement Family Services Collaborative 5-5

VII. CONFLICT OF INTEREST

A Board member may not participate in, or vote on, a decision of the Board relating to an

organization in which the member has a direct personal financial interest. While serving on the

board, a person shall avoid a potential conflict of interest.

A conflict of interest exists when: (1) you have a personal financial interest in a

collaborative contract or grant or (2) you have a personal financial interest in the funding of the

applicant/program agency.

The Board has final authority on determining a conflict of interest.

VIII. DATA PRACTICES AND PROCEDURES

The Board shall establish data practices that conform to state and federal statutes and

rules requiring data particularly the collection, creation, receipt, maintenance or dissemination of

private data on individuals as defined and regulated by the Minnesota Government Data

Practices Act, Minn. Stat. Ch. 13 and or any other applicable state or federal laws. The Board

shall establish practices for student data that conform to the federal Family Education Rights and

Privacy Act of 1974 (FERPA). The Board shall also comply with data practice policies of the

parties they are receiving information from and Minn. Stat. 124D.23, Subd. 5.

IX. AMENDMENTS

This agreement may be amended only by the agreement of all mandated parties. Once

approved by all mandated parties, notice of any proposed amendment must be provided to all

parties at least 30 days prior to the effective date of the proposed amendment.

Additions to the membership of the Collaborative will be viewed as powers of the Board

and will not follow the above procedure. Voting rights of new members shall be determined by

the Board. Any new members will sign a signature page indicating their agreement to comply

with and be fully obligated and bound by the terms of this Agreement and all applicable federal

and state laws.

X. WITHDRAWAL/TERMINATION

Any party shall have the right to withdraw from this Agreement and Board hereby

created in the following manner:

A. Notice of intent to withdraw shall be given in writing to all parties. Notice to

Mandated Parties shall be addressed as follows: -- Office of County

Administrator; Independent School District--Office of the Superintendent; CAP and/or Head

Start--Director of Grantee Agency. The party withdrawing shall pass a resolution declaring its

intent to withdraw effective on a specified date, which date shall not be less than ninety (90) days

Joint Powers Agreement Family Services Collaborative 5-6

from the day of the resolution and shall send a certified copy of such resolution to the

chairperson of the Board not less than ninety (90) days before the effective date of withdrawal.

The certified copy of such resolution shall be provided to the Chairperson of the Board by hand

delivery.

B. Upon receipt of the resolution of a withdrawal, the Chairperson of the Board shall

mail copies of the resolution to all Joint Powers appointees to the Board.

C. Where a party exercises its option to withdraw under the terms of this Agreement,

no fiscal liability shall accrue for the subsequent quarter unless the resolution declaring its

withdrawal is sent later than the first day of the last month in the quarter, in which case fiscal

liability will be limited to that accruing within sixty (60) days of the notice declaring its

withdrawal.

D. The withdrawing party shall not be entitled to a refund of monies paid to the

Board prior to the effective date of withdrawal.

E. Notwithstanding the parties' authority to withdraw, this Agreement and the Board

created hereby shall continue in force until a State Mandated Party or all remaining Parties

mutually agree to terminate or revise this Agreement by joint resolution of the State Mandated

Parties provided the remaining parties continue to meet the statutory requirements of Minn. Stat.

471.59, Subd. 11, (b) and (c), and Minn. Stat. 124D.

F. After the effective date of termination, the Board shall continue to exist for the

limited purpose of discharging the Board's debts and liabilities, settling its affairs, and disposing

of its property and surplus monies, if any.

Xl. DISPOSAL OF SURPLUS FUNDS AND PROPERTY UPON TERMINATION

Upon termination of this Agreement, all personal and real property held by or in the name

of the Collaborative will be distributed by resolution of the Board in accordance with law in a

manner to best accomplish the continuing purposes of the Collaborative. As provided by law,

any surplus monies will be returned to the Parties in proportion to contributions of the parties

after the purposes of the Agreement has been completed.

Xll. INDEMNIFICATION

Each Party shall be liable for its own acts and the acts of its representatives to the extent

provided by law and hereby agrees to indemnify, hold harmless, and defend each other, its

officers, employees and volunteers against any and all liability, loss, costs, damages, expenses,

claims or actions, including attorney's fees which the other, its officers, employees and

volunteers may hereinafter sustain, incur or be required to pay, arising out of or by reason of any

Joint Powers Agreement Family Services Collaborative 5-7

act or omission of the Party, its agents, servants, employees or volunteers, in the execution,

performance, or failure to adequately perform its obligation pursuant to this Agreement.

XlII. SEVERABILITY

The provisions of this Agreement are severable. If any section, paragraph, subdivision,

sentence, clause, or phrase of the Agreement is held to be contrary to law, rule, or regulation

having the force and effect of law, such decision shall not affect the remaining portions of this

Agreement.

XlV. TERMS OF AGREEMENT

Any disagreement over the correct interpretation of any provision of this Agreement shall

be submitted to the County Attorney's Office for resolution.

The term of this Agreement is for the period of time from the effective date until

terminated as provided herein. This Agreement shall be effective on the 1st day of January, 20 .

Joint Powers Agreement Family Services Collaborative 5-8

Joint Powers Agreement for the Collection and Administration

of a Local Lodging Tax

This Agreement, entered into by and between the COUNTY OF

______________________ , ___________________________________ , _________________

Minnesota, CITY OF ___________________ , ________________ , Minnesota;

________________ TOWNSHIP, ______________________, Minnesota;

__________________________ TOWNSHIP,_______________________________________

Minnesota; ____________ TOWNSHIP, ______________________ , Minnesota; and

_____________ TOWNSHIP, _______________ Minnesota, hereinafter “Governmental

Units,” existing under the laws of the State of Minnesota, pursuant to Minn. Stat. § 469.190

(Local Lodging Tax) and § 471.59 (Joint Exercise of Powers) to establish a procedure for the

collection and administration of a Local Lodging Tax to promote tourism in

the_________________ area.

WHEREAS, Minn. Stat. § 469.190 authorizes local governments to institute a

Local Lodging Tax for the promotion of tourism; and

WHEREAS, Minn. Stat. § 471.59 authorizes local governments to enter into joint

powers agreements with other governmental units to perform on behalf of that unit any service or

function which that government would be authorized to provide for itself; and

WHEREAS, the Governmental Units have authorized the institution of a Local

Lodging Tax of up to three percent (3%) according to the procedures contained in Minn. Stat. §

469.190.

NOW, THEREFORE, pursuant to Minn. Stat. § 469.190 and § 471.59, the

Governmental Units hereto agree as follows:

1. That this agreement is entered into pursuant to Minn. Stat. § 471.59,

authorizing the Joint Exercise of Powers.

2. That the Governmental Units hereto mutually agree to collect and

administer a Local Lodging Tax in the City of_______ _______Township, Township,

___________ Township, ____ _______Township, and Unorganized Territory, Township___,

Range ___.

3. That the amount of the lodging tax shall be____ percent (____%).

4. That the Local Lodging Tax shall be administered in accordance with

Minn. Stat. § 469.190 and all other applicable state statutes and rules as amended.

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5. That the Local Lodging Tax shall be administered by a Joint Powers Tax

Board. Each Governmental Unit to this joint powers agreement shall have one representative to

the Joint Powers Tax Board who is a resident of that Governmental Unit.

6. That all proceeds from the lodging tax shall be sent directly to the

Township of ________________________.

7. That the Township of_______________ shall make all disbursements

from the lodging tax vendors pursuant to the controlling disbursement laws for the Township of

___________________________.

8. That a strict accounting of all lodging tax receipts and disbursements shall

be kept by the Township of ___________________.

9. That all lodging tax receipts and disbursements shall be included in the

Township of __________ audits.

10. That the Township of _________________ shall make available to all

Governmental Units all records relating to the lodging tax in accordance with Minn. Stat. §

13.495 and all other applicable state statutes and rules as amended.

11. All property acquired and any surplus monies accumulated as a result of

this Joint Exercise of Powers shall be returned to the Governmental Units in proportion to

contributions of the Governmental Units, after the purpose of this agreement has been

completed.

12. That this agreement may be terminated by any Governmental Unit hereto

upon 90 days written notice to the other Governmental Units.

13. That for purposes of this agreement, written notices shall be sent to:

14. That no additional funds beyond the lodging tax dollars collected herein

will be allocated by any of the participating Governmental Units toward the lodging tax.

15. That pursuant to Minn. Stat. § 469.190, as amended, a minimum of 95

percent of the gross proceeds from this Local Lodging Tax shall be allocated to fund a local

convention or tourism bureau for the purpose of marketing and promoting the areas included in

this Local Lodging Tax.

16. That this agreement shall be effective as of the date of signature of all

Governmental Units hereto.

17. That this agreement may be executed in multiple counterparts with a

separate counterpart sent to each Governmental Unit for authorization and signature by its

authorized representatives.

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IN WITNESS WHEREOF, the Governmental Units hereto do hereby authorize execution of their respective authorized representatives and the undersigned governmental units do hereby represent that their respective Governmental Units have, in accordance with the statutes of the State of Minnesota, authorize them to execute this agreement. CITY OF COUNTY OF BY: BY: Mayor Chair, County Board Dated: Dated: BY: BY: City Clerk County Auditor Dated: Dated:

APPROVED AS TO FORM & EXECUTION BY: Assistant County Attorney

Dated:

TOWNSHIP TOWNSHIP BY: BY: Supervisor Supervisor Dated: Dated: BY: BY: Clerk Clerk Dated: Dated: TOWNSHIP TOWNSHIP BY: BY: Supervisor Supervisor Dated: Dated: BY: BY: Clerk Clerk Dated: Dated:

Joint Powers Agreement Collection and Administration of a Local Lodging Tax

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II. Purchase of Goods

Contracts

Goods and Materials Uniform Contract

THIS AGREEMENT made and entered into by and between the COUNTY OF , STATE OF MINNESOTA, hereinafter referred to as "County" through the County Department (address), hereinafter referred to as "Department," and hereinafter referred to as "Contractor."

WITNESSETH WHEREAS, the County, through the Department, wishes to purchase the materials/ goods/equipment for ; and WHEREAS, Contractor desires to provide the materials/goods/equipment necessary; and WHEREAS, Contractor was the lowest responsible bidder according to the terms of Minn. Stat. § 471.345 (2011); and WHEREAS, the County Board awarded the bid to Contractor based on the proposal submitted; and WHEREAS, the Contractor has provided a bond in the amount of the Contract for its faithful performance; NOW, THEREFORE, in consideration of the mutual promises contained herein the parties agree as follows: 1. TERM OF THE AGREEMENT Option a: Contractor shall provide the materials/goods/equipment purchased on or before

. Option b: This Agreement shall commence on the day of , 20 ,

and terminate on the day of , 20 . Goods shall be delivered/provided according to the following schedule (attachment):

2. MATERIALS/GOODS/EQUIPMENT PURCHASED

3. COST OF RAW MATERIALS/GOODS/EQUIPMENT Cost to the County shall not exceed .

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4. PAYMENT TO CONTRACTOR

Payments to Contractor shall be made based upon invoices submitted and approved. Payment shall be made in accordance with Minn. St. § 471.425.

5. RECORD DISCLOSURES/MONITORING PROCEDURES

Pursuant to Minn. Stat. § 16C.05, subd. 5 (2011), the books, records, documents and accounting procedures and practices of the Contractor relevant to the Contract are subject to examination by the contracting agency, and either the Legislative Auditor or the State Auditor as appropriate. Contractor agrees to maintain these records for a period of six years from the date of termination of this Agreement.

6. COMPLIANCE WITH LAWS AND STANDARDS

a. The Contractor shall comply with all applicable federal and state statutes and regulations as well as local ordinances now in effect or hereafter adopted.

b. Contractor specifically represents that all goods furnished pursuant to this contract

shall comply with any and all applicable patent trademark and copyright laws and standards. Contractor further represents that it is fully authorized, franchised, or licensed to sell any goods furnished pursuant to this contract.

c. Failure to meet the requirements of sections a and b above may be cause for the

County to cancel this contract effective the date of receipt of the Notice of Cancellation, in addition to any other remedies set forth in this contract or otherwise available in law or equity.

7. WARRANTIES

(Note: Warranties should be in addition to any guarantees which the Contractor specifically makes applicable to the goods being purchased.)

8. EQUAL EMPLOYMENT OPPORTUNITY - CIVIL RIGHTS

a. During the performance of this Agreement, the Contractor agrees to the following:

No person shall, on the grounds of race, color, religion, age, sex, disability, marital status, public assistance status, creed, national origin, or sexual orientation and familial status be excluded from full employment rights in, participation in, be denied the benefits of, or be otherwise subjected to discrimination under any and all applicable federal and state laws against discrimination including but not limited to Minnesota Statute §363A.02 (2011) and Minn. St. §181.59 or the Civil Rights Act of 1964. The Contractor will furnish the County, through the Department, all reports required by the U.S. Department of Labor, Executive Order No. 11246 and Revised Order No. 4, and by the rules and regulations and

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orders of the U.S. Secretary of Labor, the Minnesota Department of Human Services for purposes of investigation to ascertain compliance with such rules, regulations and orders. The provisions of Minn. Stat. § 181.59, regarding nondiscrimination and violations related there from are incorporated in this paragraph by reference as an obligation of the Contractor.

b. If during the term of this contract or any extension thereof, it is discovered that the Contractor is not in compliance with the applicable statutes and regulations or if the Contractor engages in any discriminatory practices, then the County may cancel this contract as provided by the cancellation clause.

9. BONDING, INDEMNITY AND INSURANCE

a. Bonding

The Contractor shall maintain at all times during the term of this contract a performance bond in the amount of $ covering the Contractor’s performance of its obligations under this contract.

b. Indemnity

The Contractor agrees it will defend, indemnify and hold harmless the County, its elected officials, officers and employees against any and all liability, loss, costs, damages, and expenses which the County, its officers or employees may hereafter sustain, incur or be required to pay arising out of tile Contractor's performance or failure to adequately perform its obligations pursuant to this contract. Contractor further specifically agrees to defend, indemnify and save harmless the County, its elected officials, officers and employees against any and all liability, loss, costs, damages and expenses which the County, its officers and employees may hereafter sustain, incur or be required to pay as a result of any goods furnished by the Contractor failing to comply with any and all applicable patent, trademark and copyright laws and standards. Further, if any goods furnished pursuant to this contract shall be determined to be in violation of any applicable patent, trademark or copyright law, the Contractor agrees to replace the goods immediately with noninfringing goods, which in the County's opinion, are substantially similar in nature to those purchased under this contract.

c. Insurance

Contractor further agrees that in order to protect itself as well as the County under the indemnity provisions set forth above, it will at all times during the term of this contract keep in force:

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(1) Any policy obtained and maintained under this clause shall provide that it shall not be cancelled, materially changed, or not renewed without thirty (30) days' prior notice thereof to the County.

(2) Workers’ Compensation Insurance.

Prior to the effective date of this contract, and as a condition precedent to this contract, the Contractor will furnish the County with certificates of bonding and insurance.

10. TECHNICAL ASSISTANCE, TIMELINESS

a. The Contractor will offer assistance to the County to develop service, ensure compliance with the Agreement and provide ongoing consultation to the

Contractor and liaison service between the Contractor and the County. The acting as the Contract Manager will be the Department's authorized representative in dealing with the Contractor.

b. The Contractor acknowledges that time is of the essence in its performance of this

contract. Failure by the Contractor to perform its obligations in a timely manner may be considered by the County as a material breach of this contract.

11. FINAL PAYMENT

The Contractor shall comply with all requirements contained in Minn. Stat. § 290.92 (2011) regarding the withholding of taxes and wages. Contractor shall submit documentation of compliance (I.C. 134) ------------------with Minn. Stat. § 290.92 (2011) with its claim for final payment. The Contractor is not entitled to final payment until such documentation is submitted.

12. INDEPENDENT CONTRACTOR

It is agreed that nothing herein contained is intended or should be construed in any manner as creating or establishing the relationship of co-partners between the parties hereto or as constituting the Contractor as the agent, representative, or employee of the County for any purpose or in any manner whatsoever. The Contractor is to be and shall remain an independent contractor with respect to all services performed under this Agreement. The Contractor represents that it has, or will secure at its own expense, all personnel required in performing services under this Agreement. Any and all personnel of the Contractor or other persons, while engaged in the performance of any work or services required under this Agreement, shall have no contractual relationship with the County and shall not be considered employees of the County. Any and all claims that may or might arise under the Unemployment Compensation Act or the Workers' Compensation Act of the State of Minnesota on behalf of said personnel arising out of employment or

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alleged employment including, without limitations, claims of discrimination against the Contractor, its officers, agents, contractors, or employees shall in no way be the responsibility of the County; and the Contractor shall defend, indemnify, and hold the County, its officers, agents, and employees harmless from any and all such claims irrespective of any determination of any pertinent tribunal, agency, board, commission, or court. Such personnel or other persons shall neither require nor be entitled to any compensation, rights, or benefits of any kind whatsoever from the County, including without limitation, tenure rights, medical and hospital care, sickness and vacation leave, Workers' Compensation, Unemployment Insurance, disability, severance pay, and PERA.

13. SUBCONTRACTING AND ASSIGNMENTS

Contractor shall not enter into any subcontract for performance of any of the services contemplated under this contract nor assign any interest in the contract without the prior written approval of the County and subject to such conditions and provisions as the County may deem necessary. The Contractor shall be responsible for the performance of all subcontractors.

14. CANCELLATION AND FINALIZATION a. This contract or a portion thereof may be cancelled by either party at any time,

with or without cause, upon thirty (30) days' written notice, delivered by mail or in person.

b. After receipt of the Notice of Cancellation, and except as otherwise provided, the

Contractor shall:

(1) Discontinue provision of services tinder this contract on the date and to the extent specified in the Notice of Cancellation;

(2) Cancel all orders and subcontracts to the extent that they relate to the

performance of services cancelled by the Notice of Cancellation;

(3) Complete performance of such services as shall not have been cancelled by the Notice of Cancellation;

(4) Submit a revenue and expense statement for the performance of services

prior to the effective date of cancellation within thirty (30) days of said date;

(5) Maintain all records relating to the performance of the cancelled portion of

the contract as may be required by the County;

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15. MINNESOTA LAW TO APPLY

The parties agree that Minnesota is both the place of making of this Agreement and the place of performance of this Agreement and shall be governed by and construed in accordance with the laws of the State of Minnesota. All proceedings related to this Agreement shall be venued in the State of Minnesota.

16. MODIFICATIONS

Any material alteration, modification, or variation shall be reduced to writing as an amendment and signed by the parties.

17. MERGER It is understood and agreed that the entire Agreement of the parties is contained here and

that this Agreement supersedes all oral agreements and negotiations between the parties relating to this subject matter. All items referred to in this Agreement are incorporated or attached and deemed to be part of the Agreement.

Contractor having signed this Agreement, through its as duly authorized representative of the Contractor and the County Board of Commissioners having duly approved this Agreement on the day of , 20 , and pursuant to such approval and the proper County officials having signed this Agreement, the parties hereto agree to be bound by the provisions herein set forth. COUNTY OF

(Contractor) BY: BY: Chairman of Its County Board ATTEST: Title Clerk of the Count Board Approved as to (legality,) (form,) (and execution.) Assistant/County Attorney Date: The signature page can be employed in different formats but should contain a date reciting when the Agreement was approved by the County Board which should be the official date of signing of the Agreement as opposed to its commencements date. (Notary, if desired, can appear here)

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County of __________________, Minnesota Supply Contract

DATES AND PARTIES

A.1 THIS CONTRACT, made this day of , 20 , by and between the

County of , herein called the COUNTY and , a

corporation organized and existing under the laws of the State of Minnesota, located

at , herein called the VENDOR

AGREEMENT

A.2 NOW, THEREFORE, it is mutually agreed that, in consideration of the payments to be

made to said Vendor, subject to the conditions, hereinafter set forth, the County shall

purchase from said Vendor, and the Vendor shall furnish and deliver to

the County, upon orders furnished by the County Director of Purchasing at the agreed

price(s) submitted, supplies and materials in such amounts as may be determined by said

Department(s) during said contract period, in accordance with the specifications of

County Bid Number , accepted by the Director of Purchasing as of .

A.3 The Vendor hereby guarantees that it has full legal right to said supplies and materials

delivered under this agreement, and agrees to pay all rents and royalties of every

description on any and all patents to the patent rights covering said supplies and

materials, or covering any process or machinery used in its construction; and agrees to

indemnify and save said County entirely harmless from any and all claims, demands,

damages, actions, or causes of action, arising, or to arise, against the said County by

reason of the construction or delivery of said supplies and materials, or the use of any

process, machinery or material in the construction of the same.

TERM OF CONTRACT

A.4 The term of this contract if from , 20 , to , 20 . County

reserves the right to annually review and extend this contract for up to three additional

one year periods.

CONTRACT AMOUNT

A.5 This contract when fully completed and fulfilled on the part of said vendor to the

satisfaction of the Director of Purchasing or its duly authorized agent, is estimated to be

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$ . This Contract amount is based on estimated or anticipated quantities, it

is made on past experience and no representation as to actual quantity shall be construed

therefrom. No guarantee of minimum or maximum quantity or amount is either made or

implied. The County shall neither be compelled to order any quantity of any item, nor

limited in the total quantity ordered of any item.

INCREASE

A.6 No increase to the above said contract price will be allowed to the vendor during the term

of this contract unless provided for in the bid specifications.

ORDERS & DELIVERY

A.7 Delivery of said supplies and materials shall be made only as called for on Purchase

Orders referring to this Contract duly signed, encumbered, and issued by the Purchasing

Department. Delivery may also be made as called for on Departmental Release Orders

referring to the Purchasing Department authority and to this Contract. It is understood

that the County shall be under no obligation for payment for any supplies or materials

delivered except on the basis of said Orders duly signed and issued.

UNAVOIDABLE CIRCUMSTANCES

A.8 The Vendor shall not be held responsible for damages caused by delay or failure to

perform hereunder, when such delay or failure is due to Fires, Strikes, Acts of God, Legal

acts of the public authorities, or delays or defaults caused by public carriers, or acts or

demands of the Government in time of war or national emergency.

PAYMENT

A.9 The Director of Purchasing or its duly authorized agent may, in his discretion, from time

to time, as deliveries are made, grant to the vendor, partial payments for supplies and

materials already delivered. The granting of any such payments shall not be construed as

an acceptance of the supplies or materials or any portion thereof. Payment terms of this

Contract are .

GUARANTEE

A.10 The vendor further agrees to guarantee all supplies and materials furnished under this

contract against inferiority as to specifications, such guarantee to be unconditional.

Failure or neglect of the County or its designated representative to require compliance

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with any term or condition of this contract or the specifications shall not be deemed a

waiver of such term or condition.

DEFAULT OF VENDOR

A.11 Subject to the foregoing provisions, if at any time during the term of the contract, the

vendor fails to furnish the quantity or quality of supplies and materials agreed upon, and

properly ordered under this contract, the vendor concerned shall, subject to the approval

of the Director of Purchasing, reject such supplies and materials and promptly notify the

vendor.

A.12 If the time and/or needs of the County will permit, the vendor shall be given the

opportunity to make immediate shipment of replacement supplies and materials. If the

time and/or needs of the County are such as will not permit the vendor to make a

replacement shipment, or if the vendor fails to make prompt replacement shipment all

meeting the contract requirements, the County may buy on the open market, supplies and

materials of the character required in this Contract, up to the total amount covered in this

contract. The vendor shall be liable to the County for any excess cost and expense

occasioned by said default and open market purchase.

RIGHT TO TERMINATE

A.13 County reserves the right to terminate this contract immediately, at any time during the

contract period for failure of vendor to perform as specified in the bid specifications, or to

the reasonable satisfaction of County, upon notification to vendor.

ASSIGNMENT

A.14 Vendor shall not enter into any subcontract for performance of any services contemplated

under this contract, nor assign any part of this contract, without the prior written approval

of the County Director of Purchasing and subject to such conditions and provisions as the

County may deem necessary. The vendor shall be responsible for the performance of all

subcontractors.

INDEPENDENT CONTRACTOR

A.15 That at all times and for all purposes hereunder, vendor or it’s “agents” shall be an

independent contractor is not an employee of the County of for any purpose.

No statement contained in this contract shall be construed so as to find vendor to be an

employee of the County of , and vendor shall not be entitled to any of the

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rights, privileges, or benefits of employees of the County of , including, but not

limited to, workers’ compensation, health/death benefits, and indemnification for third-

party personal injury/property damage claims.

INDEMNIFICATION

A.16 Vendor shall indemnify, hold harmless and defend the County, its officers and employees

against any and all liability, loss, costs, damages, expenses, claims or actions, including

attorney’s fees which the County, its officers or employees may hereafter sustain, incur

or be required to pay, arising out of or by reason of any act or omission of vendor, its

agents, servants or employees, in the execution, performance, or failure to adequately

perform vendor’s obligations pursuant to this contract.

COMPLIANCE WITH REGULATIONS AND LAWS

A.17 Vendor shall abide by all Federal, State, and local laws, statutes, ordinances, and rules,

now in effect or hereinafter adopted pertaining to this contract or to the facilities,

programs and staff for which vendor is responsible.

RECORDS AUDITING AND RETENTION

A.18 Vendor’s books, records, documents, papers, accounting procedures and practices, and

other evidences relevant to this contract are subject to the examination, duplication,

transcription and audit by the County and either the legislative or State Auditor, pursuant

to Minn. Stat. § 16C.05, subd. 5. Such evidences are also subject to review by the

Comptroller General of the United States, or a duly authorized representative, if federal

funds are used for any work under this Contract. Vendor agrees to maintain such

evidences for a period of six (6) years from the date services or payment were last

provided or made or longer if any audit in progress required a longer retention period.

WAIVER

A.19 Any waiver by either party of any provision of this Contract shall not imply a subsequent

waiver of that or any other provision.

MODIFICATIONS/CONTRACT AMENDMENT

A.20 Any alterations, variations, modifications, amendments or waivers of the provisions of

this Contract shall only be valid when they have been reduced to writing, and signed by

authorized representative of the County and Vendor.

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SEVERABILITY

A.21 The provision’s of this contract shall be deemed severable. If any part of this contract is

rendered void, invalid, or unenforceable, such rendering shall not affect the validity and

enforceability of the remainder of this contract unless the part or parts which are void,

invalid or otherwise unenforceable shall substantially impair the value of the entire

contract with respect to either party.

FINAL AGREEMENT

A.22 This Contract 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. There are no representations, warranties, or stipulations,

either oral or written, not herein contained.

EXECUTION

A.23 IN WITNESS WHEREOF, the County of has caused this contract to be

signed by its duly authorized officers and the vendor has hereunto set its hand. Dated this day of , . (Vendor Name) COUNTY OF , MINNESOTA PURCHASING DEPARTMENT By: By: Its ______________________________ APPROVED AS TO FORM & EXECUTION

By: Assistant County Attorney

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III. Purchase of Services

Contracts

Personal/Professional Service Agreement

THIS AGREEMENT is made and entered into by and between the County of , State of Minnesota (County), through , (Department), (address), and , (Contractor), (address).

RECITALS WHEREAS, the County, through the Department, wishes to purchase the services of Contractor as a ; and WHEREAS, there are funds available for tile purchase of these services; NOW, THEREFORE, in consideration of the mutual undertakings and agreements hereinafter set forth, the County, through the Department, and the Contractor agree as follows: 1) Term and Cost of the Agreement

The Contractor agrees to furnish services on behalf of the County during the period commencing and terminating .

The Contractor shall be paid an hourly rate of $ . The cost of this Agreement shall not exceed $ .

2) Services to be Provided 3) Payment for Services

Payment for services shall be made directly to the Contractor after completion of services upon the presentation of a claim in the manner provided by law for payment of claims against the County.

OPTION A

4) Independent Contractor Status

That at all times and for all purposes hereunder, Contractor shall be an independent contractor and is not an employee of the County for any purpose. No statement contained in this Agreement shall be construed so as to find Contractor to be an employee of the County, and Contractor shall not be entitled to any of the rights, privileges, or benefits of employees of the County of , including but not limited to, workers’ compensation, health/death benefits, and indemnification for third-party personal injury/property damage claims;

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Contractor acknowledges and agrees that no withholding or deduction for State or Federal income taxes, FICA, FUTA, or otherwise, will be made from the payments due Contractor and that it is Contractor’s sole obligation to comply with the applicable provisions of all Federal and State Tax laws;

Contractor shall at all times be free to exercise initiative, judgment and discretion as to how to best perform or provide services identified herein;

Contractor is responsible for hiring sufficient workers to perform the services/duties required by this contract, withholding their taxes, and paying all other employment tax obligations on their behalf; OPTION B

Employment Relationship

The Contractor is a contract employee of County. However, no tenure or any rights or benefits, including medical or health coverage, sick leave, vacation leave, severance pay or other benefits available to County employees, shall accrue to Contractor under this Agreement unless specifically stated. Payroll deductions for PERA and taxes, as applicable, shall be made by County as required by law.

5) Indemnification and Insurance OPTION A

The Contractor agrees it will defend, indemnify and hold harmless the County, its officers and employees against any and all liability, loss, costs, damages and expenses which the County, its officers or employees may hereafter sustain, incur, or be required to pay arising out of the Contractor's performance or failure to adequately perform its obligations pursuant to this contract.

Contractor further agrees that in order to protect itself as well as the County under the indemnity provision set forth above, it will at all times during the term of this contract keep in force:

a) Any policy obtained and maintained under this clause shall provide that it shall

not be cancelled, materially changed, or not renewed without thirty days' prior notice thereof to the County.

b) Workers’ Compensation Insurance.

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Prior to the effective date of this contract, and as a condition precedent to this contract, the Contractor will furnish the County with Certificates of Insurance listing the County as a certificate holder. OPTION B Contractor shall be covered for claims arising from acts and omissions within the scope of employment and subject to the provisions of Minn. Stat. Ch. 466. The County does not waive any limitations.

6) Data Practices All data collected, created, received, maintained, or disseminated for any purposes by the

activities of Contractor because of this contract is governed by the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as amended, the Minnesota Rules implementing such act now in force or as adopted, as well as federal regulations on data privacy.

7) Records-Availability and Retention

Pursuant to Minn. Stat. § 16C.05, subd. 5, the Contractor agrees that the County, the State Auditor, or any of their duly authorized representatives at any time during normal business hours and as often as they may reasonable deem necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc., which are pertinent to the accounting practices and procedures of the Contractor and involve transactions relating to this Agreement.

Contractor agrees to maintain these records for a period of six years from the date of termination of this Agreement.

8) Merger and Modification a) It is understood and agreed that the entire Agreement between the parties is

contained here and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter. All items referred to in this Agreement are incorporated or attached and are deemed to be part of this Agreement.

b) Any material alterations, variations, modifications, or waivers of provisions of

this Agreement shall be valid only when they have been reduced to writing as an amendment and signed by the parties.

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9) Default and Cancellation a) If the Contractor fails to perform any of the provisions of this Agreement or so

fails to administer the work as to endanger the performance of the Agreement, this shall constitute default.

Unless the Contractor's default is excused, the County, through the Department, may, upon written notice, immediately cancel this Agreement in its entirety.

b) This Agreement may be cancelled with or without cause by either party upon

thirty days' written notice. 10) Subcontracting and Assignment

Contractor shall not enter into any subcontract for performance of any services contemplated tinder this Contract without the prior written approval of the County and subject to such conditions and provisions as the County may deem necessary. The Contractor shall be responsible for the performance of all subcontractors.

11) Nondiscrimination

During the performance of this Agreement, the Contractor agrees to the following: No person shall, on the grounds of race, color, religion, age, sex, disability, marital status, public assistance status, criminal record, creed, sexual orientation or national origin be excluded from full employment rights in, participation in, be denied the benefits of or be otherwise subjected to discrimination tinder any and all applicable federal and state laws against discrimination.

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Contract for Services Social Services Provider

THIS AGREEMENT made and entered into by and between the COUNTY OF , STATE OF MINNESOTA, hereinafter referred to as the “County,” through the County Department (address) , hereinafter referred to as the “Department,” and (individual or organization) , (address) hereinafter referred to as the “Provider.”

WITNESSETH WHEREAS, pursuant to, Minn. Stat. §256.0112, (2011), and § 256M.60, the County, through the Department, has identified a certain population within the County who are in need of consultation and support services and wishes to purchase these services from the Provider; and WHEREAS, the Provider (Contractor) represents that he is qualified to furnish these services; and WHEREAS, federal funds are available for the purchase of consultation and support services under Title XX of the Social Security Act, as amended by the Social Services Block Grant Act, Subtitle C, Section 2352, Public Law 97-35, through the State of Minnesota. WHEREAS, the Provider will best serve the needs of the target population and maintain program flexibility by providing services through a cost reimbursement process in order to make services available to the general community. In consideration of the mutual undertakings and agreements hereafter set forth, the County, through the Department, and the Provider agree as follows:

1. TERM OF THE AGREEMENT

a. This Agreement shall commence on the day of , 20 , and terminate on the day of , 20 .

b. This Agreement may be renewed at the option of the County upon sixty (60) days'

written notice to the Provider prior to the expiration of this Agreement or any subsequent one-year term.

2. SERVICES TO BE PROVIDED

The Provider will provide consultant and support services as described herein and in Attachment I, such attachment being incorporated into and made part of this Agreement. Such services shall hereafter be referred to as "Purchased Services."

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3. COST OF THE AGREEMENT a. The cost of this Agreement shall not exceed $ .

b. In consideration of the total operating budget of the Provider in the amount of $ the County will pay no more than $ , the balance of funds to be furnished by the Provider.

c. It is understood and agreed that if a reduction of funds prevents

reimbursement to the County, through the Department, from the (United States Department of Health and Human Services and/or the Minnesota Department of Human Services), the respective funding obligations as recited herein may be renegotiated.

d. The County, through the Department, does not guarantee operational costs

of the Provider's facility and will only pay for services rendered. e. It is further agreed that should additional funding be secured from another

source, reimbursing Provider for any or all of the costs of the purchased services which is covered by this Agreement, the total cost of the Agreement shall be reduced by that amount.

f. If reviews by the County, through the Department, of the Provider's

expense reports show that an amount is being paid which is higher than the reasonable and necessary rate for the purchased services, the parties agree to amend the Agreement to establish a reasonable and necessary amount.

4. PAYMENT FOR SERVICES

a. Payments to the Provider shall be made based upon invoices submitted monthly by the Provider showing the expenditures during the previous month. The invoices shall be submitted on forms prescribed by the County.

Payment will be made in the manner provided by law for the payment of claims against the County within (35 days) of receipt of the invoice whenever practicable.

b. Provider shall submit monthly invoices for services rendered on forms as

described above furnished by the County through the Department. Payment shall be made within (35 days) from receipt of the invoice. If the invoice is incorrect, defective, or otherwise improper, the County, through the Department, will notify the Provider within ten (10) days of receiving the incorrect invoice. Upon receiving the corrected invoice from the

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Provider, the County, through the Department, will make payment within (35 days). In the event that the County withholds payment for failure to provide service or failure to comply with any of the provisions of this Agreement, then no interest penalty shall accrue against the County through the Department. If claims are made by the Provider that the County, through the Department, did not act in good faith in withholding payments as provided above, then such claims shall be handled as a dispute by the Contract Manager (pursuant to clause 13 of this Agreement). If an audit is required by the County, through the Department, before an invoice is accepted for payment, then the standard payment period of (35 days) shall not commence until the audit is completed by the County.

c. Pursuant to the provisions of Minn. Stat. § 290.97, final payment under

this Agreement may be withheld until such time as the Provider shall furnish to the County, through the Department, proof that payment has been made of all outstanding withholding taxes, penalties, and interest. Proof shall be in the form of a certificate issued by the Commissioner of Revenue.

5. ELIGIBILITY FOR SERVICES

Eligibility for purchased services shall be determined by the following criteria: 6. AUDITS, REPORTS, RECORDS, DISCLOSURES, AND MONITORING

PROCEDURES

The Provider will: a. Maintain program and statistical records including, but not limited to, a

service plan and corresponding service file. The service file should include, at a minimum, eligibility category, description of disability, service plan, detailed factors relating to current situation, description of plan of action, and case notes and related referral information and final disposition.

b. Develop and maintain a record-keeping system to log informational or

referral requests. This relates specifically to situations when a service plan is not appropriate.

c. Submit a periodic line item expenditure report within thirty (30) days after

the end of each period unless otherwise indicated in writing by the County, through the Department. This must include both total units of service provided by the Provider and the units of service provided to the County through the Department. The report must be in the form described by the County through the Department.

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d. Agree that the County, the State Auditor or legislative authority, or any of

their duly authorized representatives at any time during normal business hours, and as often as they may deem reasonably necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc., and accounting procedures and practices of the Provider which are relevant to the contract, pursuant to Minn. Stat. § 16C.05, subd. 5 (2011).

7. STANDARDS AND LICENSES a. The Provider warrants and represents that he/she is currently licensed as a

by the State of Minnesota (or other regulatory authority). In the event said license is cancelled, revoked, suspended, or expires during the term of the contract, Provider agrees to immediately inform the County (or name the individual, official capacity). The County will pay only for services provided pursuant to such licensing requirements.

b. The Provider shall comply with all applicable federal and state statutes

and regulations as well as local ordinances now in effect or hereafter adopted.

c. Failure to meet the requirements of Sections a and b above may be cause

for cancellation of this contract effective the date of receipt of the Notice of Cancellation.

8. GENERAL CONDITIONS

a. The Provider will comply with all of the provisions of the Child Abuse Reporting Act, Minn. Stat. § 626.556, as amended, and all Minnesota Rules as promulgated by the Minnesota Department of Human Services implementing such Act now in force or hereafter adopted.

b. Claims for expenditures made in excess of budget categories which do not

increase the County's total cost of this Agreement will be allowed only when approved in writing by the Contract Manager. Such approval shall not be deemed a material modification of the Agreement.

9. DATA PRIVACY

a. All data collected, created, received, maintained, or disseminated, or used for any purposes in the course of the Provider's performance of this Agreement is governed by the Minnesota Government Data Practices Act, Minn. Stat. Ch. 13, or any other applicable state statutes and any state rules adopted to implement the Act, as well as state statutes and federal

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regulations on data privacy. The Provider agrees to abide by these statutes, rules, and regulations and as they may be amended.

b. The Provider designates , its , as its

Responsible Authority pursuant to the Minnesota Government Data Practices Act, as the individual responsible for the collection, reception, maintenance, dissemination, and use of any data on individuals and other government data including summary data, pursuant to this Agreement.

10. EQUAL EMPLOYMENT OPPORTUNITY - CIVIL RIGHTS a. During the performance of this Agreement, the Provider agrees to the

following:

No person shall, on the grounds of race, color, religion, age, sex, disability, marital status, public assistance status, criminal record, creed, or national origin, be excluded from full employment rights in, participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program, service, or activity under the provision of any and all applicable federal and state laws against discrimination including the Civil Rights Act of 1964. The Provider will furnish the County, through the Department, all reports required by Executive Order No. 11246 and Revised Order No. 4, and by the rules and regulations and orders of the Secretary of Labor, the Minnesota Department of Human Services for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

The Provider shall comply with all applicable statutes, regulations, and licensing requirements in the employment of personnel. To the extent that any of the provisions of the applicable statutes, regulations, or licensing requirements are inconsistent with any of the provisions of this clause, said statute, regulation, or requirement shall prevail if it has a reasonable bearing upon the applicant's fitness to be employed in any phase of the program.

b. The Provider guarantees that no funds received under this Agreement shall

be used to provide religious training and/or services to any individual receiving purchased services.

c. If during the term of this Agreement or any extension thereof, it is

discovered that the Provider is not in compliance with the applicable regulations as aforesaid, or if the Provider engages in any discriminatory practices, then the County, through the Department, may cancel said Agreement as provided by the cancellation clause of this Agreement.

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11. FAIR HEARING AND GRIEVANCE PROCEDURE

a. The Provider will establish a system through which eligible recipients may present grievances about the operation of the service program, and the

Provider will advise eligible recipients of this right.

b. The County, through the Department, will advise applicants and eligible recipients of all of their rights to a fair hearing and the appeal process including, but not limited to, the right to appeal a denial or exclusion from the program or failure to recognize an eligible recipient's choice of a service and of his/her right to a fair hearing in these respects. The County, through the Department, will make arrangements to provide such hearings.

12. BONDING, INDEMNITY, AND INSURANCE

a. Bonding. The Provider shall maintain at all times during the term of this Agreement a fidelity bond in the amount of $ covering the activities of each person authorized to receive or distribute monies under the terms of this Agreement.

b. Indemnity. The Provider does hereby agree that it will defend, indemnify,

and hold harmless the Department and the County against any and all liability, loss, damages, costs, and expenses which the Department or County may hereafter sustain, incur, or be required to pay:

(1) By reason of any applicant or eligible recipient suffering bodily or

personal injury, death, or property loss or damage either while participating in or receiving the care and services to be furnished under this Agreement, or while on premises owned, leased, or operated by the Provider, or while being transported to or from said premises in any vehicle owned, operated, leased, chartered, or otherwise contracted for by the Provider or any officer, agent, or employee thereof; or

(2) By reason of any applicant or eligible recipient causing injury to,

or damage to, the property of another person during any time when the Provider or any officer, agent, or employee thereof has undertaken or is furnishing the care and services called for under this Agreement; or

(3) By reason of any negligent act or omission or intentional act of the

Provider, its agents, officers, or employees which causes bodily injury, death, personal injury, property loss, or damage to another during the performance of purchased services under this Agreement.

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c. Insurance. The Provider does further agree that in order to protect itself as well as the Department and the County under the indemnity agreement provision hereinabove set forth, it will at all times during the term of the Agreement have and keep in force:

(1) A single limit or combined limit or excess umbrella general

liability insurance policy of an amount of not less than $1,500,000 for property damage arising from one occurrence, $1,500,000 for total bodily or personal injuries or death and/or damages arising from one occurrence. Such policy shall also include contractual liability coverage protecting the County, its officers, agents, and employees by specific endorsement or certificate acknowledging the contract between the Provider and the County, through the Department, naming the County as an additional insured.

(2) A single limit or combined limit or excess umbrella automobile

liability insurance policy, if applicable, covering agency-owned, non-owned, and hired vehicles used regularly in the provision of services under this Agreement, in an amount of not less than $1,500,000 per accident for property damage, $500,000 for bodily injuries and/or damages to any one person, and $1,500,000 for total bodily injuries and/or damages arising from any one accident.

(3) The Provider shall require that each independent

professional/contractor rendering counseling and/or health care services on a regular basis to recipients under this Agreement furnish the following proof of professional liability insurance in the following manner:

A professional liability insurance policy covering said independent professional/contractor, its agents, or employees while performing services under this Agreement in the following amounts: $500,000 per claimant for personal injuries, bodily injuries, death, and/or damages, and $1,500,000 for total personal injuries, bodily injuries, death, and/or damages arising from one occurrence.

(4) A professional liability insurance policy covering personnel of the

Provider while performing services under this Agreement naming the County as an additional insured in the following amounts: $500,000 per claimant for personal injuries, bodily injuries, death, and/or damages, and $1,5.00,000 for total bodily injuries, personal injuries, death, and/or damages arising from one occurrence.

(5) Workers’ Compensation insurance, if applicable.

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d. Prior to the effective date of this Agreement, the Provider will furnish the County, through the Department, with certificates of bonding and insurance.

e. The County, through the Department, may withhold payment for failure of

the Provider to furnish certificates of bonding and/or insurance as required above.

f. In the event that claims or lawsuits shall arise jointly against the Provider and the County, and the County elects to present its own defense, using its own counsel, in addition to or as opposed to legal representation available by the insurance carriers providing the coverage as stated above, then such legal expense shall be borne by the County.

g. Any policy obtained and maintained under this clause shall provide that it shall not be cancelled, materially changed, or not renewed without thirty (30) days' prior notice by the insured to the County, through the Department.

13. TECHNICAL ASSISTANCE AND DISPUTES

a. The County, through the Department, will offer assistance to the Provider to develop services, ensure compliance with the Agreement, and provide ongoing consultation to the Provider and liaison service between the Provider and the County, through the Department. A coordinator from Purchase of Service Unit acting as the Contract Manager will be the Department's authorized representative in dealing with the Provider.

b. Except as otherwise provided in this Agreement, any dispute concerning a

question of fact arising under this Agreement which is not disposed of by negotiation and agreement shall be decided by the Contract Manager, who shall reduce the decision to writing and furnish a copy thereof to the Provider. The decision of the Contract Manager shall be final and conclusive unless, within thirty (30) days from the date of mailing of a copy of the decision to the Provider, the Provider furnishes to the Contract Manager a written appeal addressed to the County, through the Department. The decision of the County, through the Department, or its duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, capricious, arbitrary, so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this clause, the Provider shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Provider shall proceed diligently with the performance of the Agreement and in accordance with the Contract Manager's decision.

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c. This disputes clause does not preclude consideration of questions of law.

14. INDEPENDENT CONTRACTOR

It is agreed that nothing herein contained is intended or should be construed in any manner as creating or establishing the relationship of copartners between the parties hereto or as constituting the Provider as the agent, representative, or employee of the County for any purpose or in any manner whatsoever. The Provider is to be and shall remain an independent contractor with respect to all services performed under this Agreement.

The Provider represents that it has, or will secure at its own expense, all personnel required in performing services under this Agreement. Any and all personnel of the Provider or other persons, while engaged in the performance of any work or services required by the Provider under this Agreement, shall have no contractual relationship with the County and shall not be considered employees of the County, and any and all claims that may or might arise under the Unemployment Compensation Act or the Workers' Compensation Act of the State of Minnesota on behalf of said personnel arising out of employment or alleged employment including, without limitation, claims of discrimination against the Provider, its officers, agents, contractors, or employees shall in no way be the responsibility of the County; and the Provider shall defend, indemnify, and hold the County, its officers, agents, and employees harmless from any and all such claims irrespective of any determination of any pertinent tribunal, agency, board, commission, or court. Such personnel or other persons shall neither require nor be entitled to any compensation, rights, or benefits of any kind whatsoever from the County, including without limitation, tenure rights, medical and hospital care, sick and vacation leave, Workers' Compensation, Unemployment Insurance, disability, severance pay and PERA.

15. SUBCONTRACTING AND ASSIGNMENTS

Provider shall not enter into any subcontract for performance of any of the services contemplated under this contract nor assign any interest in the contract without the prior written approval of the County and subject to such conditions and provisions as the County may deem necessary. The Provider shall be responsible for the performance of all subcontractors.

16. CANCELLATION AND FINALIZATION

a. This contract or a portion thereof may be cancelled by either party at any time, with or without cause, upon thirty (30) days' written notice, delivered by mail or in person.

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b. After receipt of the Notice of Cancellation, and except as otherwise provided, the Provider shall:

(1) Discontinue provision of services under this contract on the date

and to the extent specified in the Notice of Cancellation;

(2) Cancel all orders and subcontracts to the extent that they relate to the performance of services cancelled by the Notice of Cancellation;

(3) Settle all outstanding claims and liabilities for orders and

subcontracts existing at the time of the Notice of Cancellation provided, however, that the claims and liabilities for orders and subcontracts have been approved by the County;

(4) Complete performance of such services as shall not have been

cancelled by the Notice of Cancellation;

(5) Submit a revenue and expense statement for the performance of services prior to the effective date of cancellation within thirty (30) days of said date;

(6) Maintain all records relating to the performance of the cancelled

portion of the contract as may be required by the County;

(7) Notify all clients and any other counties of financial responsibility of the cancellation of the contract.

17. MODIFICATIONS

Any material alteration, modification, or variation shall be reduced to writing as an amendment and signed by the parties. Any alterations, modifications, or variations deemed not to be material by agreement of the County and the Provider shall not require written approval.

18. MERGER

It is understood and agreed that the entire agreement of the parties is contained here and that this contract supersedes all oral agreements and negotiations between the parties relating to this subject matter. All items referred to in this contract are incorporated or attached and deemed to be part of the contract.

The following signature page can be employed in different formats, but should contain a date reciting when the contract was approved by the County Board, which should be the official date of signing of the contract as opposed to its commencement date.

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Provider having signed this contract, and the County Board of Commissioners having duly approved this contract on the day of , 20 , and pursuant to such approval and the proper County officials having signed this contract, the parties hereto agree to be bound by the provisions herein set forth.

COUNTY OF BY: Chairperson of Its County Board ATI'EST: Clerk of the County Board PROVIDER BY: Title Approved as to legality, form, and execution. BY: Assistant County Attorney DATE:

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County of________________, Minnesota Service Contract

A.1 DATES AND PARTIES A.1.1 THIS CONTRACT, made this ____ day of _______________, 20____, by

and between the County of ________________, herein called the “County,” and ____________, a corporation organized and existing under the laws of the State of ______________, or a partnership consisting of _____________________, or an individual trading as ________________, located at ______________________, herein called the “Vendor.”

B.1 AGREEMENT B.1.1 NOW, THEREFORE, it is mutually agreed that, in consideration of the

payments to be made to said Vendor, subject to the conditions, hereinafter set forth, the County shall purchase __________________ services from said Vendor, upon orders furnished by the County Director of Purchasing at the agreed price(s) submitted, and the Vendor shall perform said services all in accordance with the specifications of County Bid Number __________, accepted by the Director of Purchasing as of ____________.

C.1 TERM OF CONTRACT C.1.1 The term of this Contract is from _______________ to ______________,

inclusive. The County reserves the right as provided for in the bid specifications to extend this Contract for ___________________.

D.1 SPECIAL CONDITIONS D.1.1 This Contract is subject to such special conditions as are set forth in the

special Conditions Supplement attached hereto and made a part hereof and marked Exhibit(s): ____N/A _____.

E.1 CONTRACT AMOUNT E.1.1 This Agreement when fully completed and fulfilled on the part of said

Vendor to the satisfaction of the Director of Purchasing or its duly authorized agent, is estimated to be $_________________.

F.1 INCREASE F.1.1 No increases to the above said Contract amount will be allowed to the

Vendor during the term of this Contract unless provided for in the bid specifications.

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G.1 PAYMENT G.1.1 The County does hereby agree, to pay said Vendor as services are

performed to the satisfaction of the Director of Purchasing, or its duly authorized agent, ______________ payments of $__________ each, or as indicated in bid proposal. Payment terms of this Contract are Net 30.

H.1 GUARANTEE H.1.1 The Vendor further agrees to guarantee all materials and parts supplied

under this Contract against inferiority as to specifications, such guarantee to be unconditional. Failure or neglect of the County or its designated representative to require compliance with any term or condition of this Contract or the specifications shall not be deemed a waiver of such term or condition.

I.1 BOND I.1.1 Minnesota Statute 574.26 requires the vendor to furnish a Performance

Bond and a Labor & Materials Payment Bond in the full amount, for any contract over $75,000, in favor of the County, to protect the County against any breach of contract. The Surety company providing the bond(s) must be registered to do business in the State of Minnesota and be satisfactory to the County.

J.1 INSURANCE J.1.1 The following insurance must be maintained for the duration of this

Contract. A Certificate of Insurance for each policy must be on file with the County Purchasing Department within 10 days of execution of this Contract and prior to commencement of any work under this Contract. Each certificate must include a 10-day notice of cancellation, nonrenewal, or material change to all named and additional insureds.

J.1.2 The County reserves the right to rescind any contract not in compliance

with these requirements and retains all rights thereafter to pursue any legal remedies against Contractor. All insurance policies shall be open to inspection by the County, and copies of policies shall be submitted to the County upon written request. All subcontractors shall provide evidence of similar coverage.

J.1.3 General Liability Insurance J.1.3.1 $500,000 for claims for wrongful death and each person for other

claims $1,500,000 each occurrence

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No less than $2,000,000 aggregate J.1.3.2 Policy shall include at least premises, operations, completed

operations, independent contractors and subcontractors, and contractual liability.

J.1.3.3 _______________ County must be named as additional insured. J.1.4 Business Automobile Liability Insurance J.1.4.1 $500,000 each person $1,500,000 each occurrence No less than $2,000,000 aggregate J.1.4.2 Must cover owned, nonowned and hired vehicles. J.1.5 Workers’ Compensation Per Statutory Requirements J.1.5.1 ______________ County reserves the right to rescind any contract

not in compliance with these requirements and retains all rights thereafter to pursue any legal remedies against bidder.

J.1.6 Professional Liability Insurance [For Professional Services Contracts

Only] J.1.6.1 Provider shall maintain at its sole expense a valid policy of

insurance covering professional liability, arising from the acts or omissions of Provider, its agent and employees in the amount of not less than $500,000 per claim and $1,000,000 annual aggregate.

J.1.7 Indemnification Clause J.1.7.1 Except as may be caused by the sole negligence of the County or

its employees, Contractor shall indemnify and save harmless ____________ County, its employees, and its agents from all claims, actions, demands, and judgments of any kind arising in whole or in part from any act or omission of Contractor, is subcontractors, and their agents, servants, or employees, incidental to the performance of the Contract and from all expenses in connection with such claims, actions, demands and judgments, and shall assume, without expense to the County, the defense of any such claims, actions, demands and judgments, irrespective of whether it is alleged, claimed, or proved in connection with such act or omission that negligence of the County or its representatives caused or contributed thereto.

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J.1.7.2 Contractor agrees, that in order to protect itself and the County under the indemnity provisions set forth above, it will at all times during the term of this Agreement keep in force policies of insurances indicated in paragraph entitled, “INSURANCE.”

J.1.7.3 This provision is not intended to create any cause of action in favor

of any third party against the Contractor or the County or to enlarge in any way the Contractor’s liability, but it is intended solely to provide for indemnification of the County from liability for damages or injuries to third persons or property arising from the Contractor’s or the Contractor’s agents’ performance hereunder.

K.1 UNAVOIDABLE CIRCUMSTANCES K.1.1 The Vendor shall not be held responsible for damages caused by delay or

failure to perform hereunder, when such delay or failure is due to Fires, Strikes, Acts of God, Legal acts of the public authorities, or delays or defaults caused by public carriers, or acts or demands of the Government in time of war or national emergency.

L.1 RIGHT TO TERMINATE L.1.1 County reserves the right to terminate this Contract immediately, at any

time during the contract period for failure of Vendor to perform as specified in the bid specifications, or to the reasonable satisfaction of County, upon notification to Vendor.

M.1 ASSIGNMENT M.1.1 Vendor shall not enter into any subcontract for performance of any

services contemplated under this Contract, nor assign any part of this Contract, without the prior written approval of the County Director of Purchasing and subject to such conditions and provisions as the County may deem necessary. The Vendor shall be responsible for the performance of all subcontractors.

N.1 INDEMNIFICATION N.1.1 Vendor shall indemnify, hold harmless and defend the County, its officers

and employees against any and all liability, loss, costs, damages, expenses, claims or actions, including attorney’s fees which the County, its officers or employees may hereafter sustain, incur or be required to pay, arising out of or by reason of any act or omission of Vendor, its agents, servants or employees, in the execution, performance, or failure to adequately perform Vendor’s obligations pursuant to this Contract.

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O.1 COMPLIANCE WITH LAWS O.1.1 Vendor shall abide by all Federal, State and local laws, statutes,

ordinances, rules and regulations now in effect or hereinafter adopted pertaining to this Contract or to the facilities, programs and staff for which Vendor is responsible.

P.1 RECORDS AUDITING AND RETENTION P.1.1 Vendor’s books, records, documents, papers, accounting procedures and

practices, and other evidences relevant to this Contract are subject to the examination, duplication, transcription and audit by the County and either the legislative or State Auditor, pursuant to Minn. Stat. § 16C.05, subd. 5. Such evidences are also subject to review by the Comptroller General of the United States, or a duly authorized representative, if federal funds are used for any work under this Contract. Vendor agrees to maintain such evidences for a period of six (6) years from the date services or payment were last provided or made or longer if any audit in progress required a longer retention period.

Q.1 WAIVER Q.1.1 Any waiver by either party of any provision of this Contract shall not

imply a subsequent waiver of that or any other provision. R.1 MODIFICATIONS/AMENDMENT R.1.1 Any alterations, variations, modifications, amendments or waivers of the

provisions of this Contract shall only be valid when they have been reduced to writing, and signed by authorized representative of the County and Vendor.

S.1 SEVERABILITY S.1.1 The provision of this Contract shall be deemed severable. If any part of

this Contract is rendered void, invalid, or unenforceable, such rendering shall not affect the validity and enforceability of the remainder of this Contract unless the part or parts which are void, invalid or otherwise unenforceable shall substantially impair the value of the entire Contract with respect to either party.

T.1 FINAL AGREEMENT T.1.1 This Contract 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. There are

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no representations, warranties, or stipulations, either oral or written, not herein contained.

U.1 EXECUTION U.1.1 IN WITNESS WHEREOF, the County has caused this Contract to be

signed by its duly authorized officers and the Vendor has hereunto set its hand.

Dated this ______ day of ____________________, __________. (Vendor Name) COUNTY OF ___________, MINNESOTA PURCHASING DEPARTMENT By: __________________________________ By: ________________________________ Its ____________________________ Director of Purchasing APPROVED AS TO FORM & EXECUTION By: ________________________________ Assistant County Attorney

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IV. Property Leases and Easements

Lease Agreement In consideration of the mutual covenants hereinafter set forth, and intending to be legally bound, the parties do hereby agree as follows: 1. PREMISES 1.1 Demise. Lessor does demise, lease and rent to Tenant and Tenant does hire, rent and take from Lessor the following "Leased Premises": Space consisting of approximately square feet of floor space located on the floor in the (name of building/development) situated at (address) hereinafter "Building." Said leased premises have been assigned suite number(s) by Lessor and are more specifically designated in Exhibit "A" which is attached and incorporated herein by reference. [The space as identified in Exhibit A is measured according to standards in conformity with those established by Building Owners and Manager Association]. 1.2 Legal Description. The (leased premises/building) is located in County the legal description of which is: [attached hereto as Exhibit "B" and incorporated herein by reference.] 1.3 Condition of Premises. Parties agree that the leased premises are presently in good repair and condition. 1.3(a) Lessor's Work. Lessor agrees that prior to the commencement of the terms hereof, at its sole cost and expense, it will perform the work and/or improve the leased premises all in a good and worker-like manner in substantial accordance with the floor plan attached as Exhibit "A" [and specifications as set forth in Exhibit “ ”] attached and made a part hereof. It is understood that mutually agreed upon minor changes from any plans or specifications which may be necessary during construction of the leased premises shall not affect or invalidate this Lease. The Lessor wilt not make and is under no obligations to make, any structural or other alterations, decorations, additions or improvements in or to the leased premises except as set forth in Exhibit and as stated below: (i) The leased premises, at the time of initial occupancy shall comply with

applicable building codes. (ii) The leased premises will be completed substantially as agreed to in this Lease.

(iii) The mechanical systems servicing the leased premises will have been checked and found to be operating satisfactorily.

The Lessor has made no other representations, either express or implied regarding the quality and condition of the building.

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1.3(b) Tenant Inspection. Tenant acknowledges that, upon occupancy hereof, it will cause the leased premises to be inspected in order to ascertain the condition thereof, that any objections thereto not delivered in writing to Lessor within 20 days after occupancy shall be deemed waived. 1.4 Use of Premises. Tenant shall use and occupy the leased premises solely for . No other use is authorized without the prior written consent of Lessor. 1.4(a) Common Areas. Tenant, its employees and invitees shall have in common with other Building tenants and tenants of any building which Lessor may erect adjacent to the Building full and unimpaired access to common areas, including but not limited to the adjacent parking facilities, halls, toilet and sanitary facilities, sidewalks and delivery areas, all of which are sometimes referred to herein as the "appurtenances", but always subject to the reasonable and uniform rules established by Lessor. Lessor reserves the right to restrict, on a temporary basis, access to any portions of such common areas from time to time for the purpose of repairing or improving the same. Lessor further reserves the right to construct additional buildings and facilities on the property and to make reasonable use of the common areas outside of the building during the construction period. 1.4(b) Parking Lots. No more than parking spaces are to be occupied at any one time by the Tenant, its employees and invitees. The Tenant further agrees not to use the parking areas for overnight storage of automobiles or other vehicles without the written permission of Lessor, nor will Tenant permit its employees to do so without permission of Lessor. 1.4(c) No Unlawful Uses. Tenant will not use, occupy or permit the leased premises or any part thereof to be used or occupied for any unlawful or illegal business, use or purpose, nor for any business, use or purpose deemed by Lessor to be disreputable or extra-hazardous, nor in such manner as to constitute a nuisance of any kind, nor for any purpose or in any way in violation of any present or future laws, rules, requirements, orders, directions, ordinances or regulations of the United States of America, or of the State, county or city government, or other municipal, governmental or lawfill authority whatsoever, and shall indemnify and hold Lessor harmless from the consequences of any such violation. If Tenant receives any written notice of any such violation, applicable to the leased premises, it shall give prompt notice thereof to Lessor. 1.4(d) Obligation of Tenant to Conform to Lawful Uses. Tenant shall, at its expense, conform to all laws, orders, ordinances and regulations of federal, state, county and municipal authorities and with any directives made pursuant to law by any public officer or officers which shall, with respect to the occupancy, use or manner of use of the leased premises or to any abatement of nuisance, impose any order or duty upon Lessor or Tenant arising from Tenant's occupancy, use or manner of use of the leased premises. 1.4(e) Hazardous Uses. Tenant will not conduct or permit to be conducted any activity or place any equipment in or about the leased premises, which will in any way increase the rate of fire insurance or other insurance on the building; and if any increase in the rate of fire

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insurance or other insurance is stated by any insurance company or by the applicable Insurance Rating Bureau to be due to activity or equipment of Tenant in or about the leased premises, such statement shall be conclusive evidence that such increase in such rate is due to such activity or equipment. In such event, Lessor shall have the option, exercisable in its sole discretion, to terminate this Lease or to require Tenant to pay to Lessor the increase in the rate of such insurance attributable to such activity or equipment of Tenant and Tenant shall pay such amount to Lessor upon demand therefor. 1.4(f) Landlord's Rules and Regulations. Tenant, its officers, employees, agents and invitees, shall observe and comply with all reasonable rules and regulations governing the building and the adjacent parking facilities as may be determined from time to time in writing by Lessor for the general safety, comfort and convenience of the Tenant, other tenants and the general public. Any failure to observe any such rule or regulation shall constitute failure to perform a term of this Lease and, consequently, a breach on the date of execution of this Lease are set forth on Exhibit attached and incorporated herein by reference. 2. TERM 2.1 Term of Lease. The term of this Lease shall be for year(s) commencing on , or the date on which Tenant assumes possession of the leased premises, which-ever occurs first, and continues to midnight of , unless earlier terminated by law or as provided herein. 2.2 Delay of Commencement. In the event the Lessor's work as described in paragraph 1.3(a) above is not substantially completed by the commencement date of this Lease, the Lease period shall start on the date of Tenant's possession. Tenant agrees to take possession within ten (10) days after the leased premises is substantially ready for occupancy. Lessor shall not be liable to Tenant for any loss of damage resulting if the leased premises are not ready for occupancy on the commencement date of this Lease, nor shall such failure affect the validity of this Lease or the obligations of Tenant hereunder, except that Tenant shall not be obligated to pay rent or other charges due hereunder until after the date of substantial completion of Lessor's work and commencement of substantial completion of Lessor's work, the written certification by Lessor's architect that such work has been completed shall be conclusive on Lessor and Tenant. 2.3 Holding Over. If Tenant remains in possession of the leased premises after the expiration of the term hereof and without the execution of a new written lease, or a written extension agreement, Tenant shall be deemed to be occupying the leased premises as a tenant from month-to-month, terminable on thirty (30) days' notice given by either party to the other, at a monthly rental equal to one hundred and fifty percent (150%) of the base rent and otherwise subject to all the conditions and obligations of this Lease insofar as they are applicable to a month-to-month tenancy. OR 2.3 Holding Over. If Tenant does not vacate the leased premises at the end of the lease term, or upon other termination of Tenant's right of possession, then Tenant's further

Property Leases and Easements Lease Agreement 11-3

possession shall be wrongful and Tenant shall be subject to eviction at any time, pursuant to law. Tenant shall be liable to pay Lessor as damages for wrongful holding over, an amount equal to two (2) times the monthly installment of rent payable under this Lease, including any additional rent prorated for such period of holding over. In no event shall holding over by Tenant imply any extensions of this Lease. 2.4 Option to Renew. Tenant has first right to renew this Lease for a period up to an additional from the end of initial lease term, provided Tenant has abided by the agreements, terms and conditions set forth in this Lease. Conditions of this renewal period will be negotiated between the Lessor and Tenant at the time the option is exercised by the Tenant. Tenant shall give Landlord written notice of its intent to renew at least ninety (90) days and not more than One Hundred Eighty (180) days prior to expiration of initial lease term or Lease will terminate at end of initial term. 3. RENT/DEPOSITS 3.1 Base Rent. The Tenant shall pay as "Base Rent" for the leased premises, an amount equal to the following: First year: , 20 to , 20 , $ , per year; $ per month. Second year: , 20 to , 20 , $ , per year; $ per month. Third year: , 20 to , 20 , $ , per year; $ per month. Special Conditions: 3.2 Date of Payment/Proration. Rent is due and payable in advance on the first day of each and every calendar month during the term hereof. If the term of this Lease begins on a date other than on the first day of a month, base rent from such date until the first day of the following month shall be prorated at the rate of one-thirtieth (1/30th) of the fixed monthly base rent for each day, payable in advance.

3.3 Place of Payment. The Tenant shall pay said base rent, together with all other amounts due hereunder, to Lessor at the office of Lessor located at , or to such other party or to such other address as Lessor may designate from time to time by written notice to Tenant.

3.4 Security Deposit. Simultaneously with the execution of this Lease, Tenant shall deposit with Lessor the sum of Dollars ($ ) as a security

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deposit. Such security deposit shall be considered as security for the payment and performance by Tenant of all of Tenant's obligations, covenants, conditions and agreements under this Lease. Upon the expiration of the term hereof, Lessor shall, provided that Tenant is not in default under the terms hereof, return and pay back such security deposit to Tenant under the same provisions as set out in Minn. Stat. § 504.20 for residential rental agreements, including interest. In the event of any default by Tenant hereunder, Lessor shall have the right, but shall not be obligated, to apply all or any portion of the security deposit to cure such default, in which event Tenant shall be obligated to promptly deposit with Lessor the amount necessary to restore the security deposit to its original amount. In the event of the sale or transfer of Lessor's interest in the building, Lessor shall have the right to transfer the security deposit to such purchasers or transferee. If transferred, Tenant shall be entitled to look only to the new Lessor for the return of the security deposit and Lessor shall thereupon be released from all liability to Tenant for the return of such security deposit. 3.5 Additional Rent. Tenant shall pay as additional rent, when billed by Lessor, its proportionate share of operating expenses. Tenant's proportionate share will be determined as follows: area of leased premises total rental area x operating expenses = $ tenant's share and is based on the following square footage: Leased Premises Sq. ft.; Common Area Sq. ft.; Total Rentable Area Sq. ft.; Total Bldg. Area Sq. ft.

Lessor shall have the right to invoice these costs monthly to Tenant on an estimated basis, making adjustment to actual costs periodically, but at least annually, as operating reports are available.

3.6 Operating Expenses Defined. Operating expenses shall mean any and all costs and expenses which Lessor may incur in owning, insuring, maintaining, operating and repairing the building, appurtenances to the building and the land surrounding the same, regardless of whether or not such expenses may be capitalized for federal income tax purposes, including without limitation, (i) all management fees incurred by Lessor in connection with the management and operation of the building and parking facilities, costs and expenses for heating, cooling, utilities, insurance including rent insurance, security, janitorial and cleaning services, snow removal, landscaping, salaries, wages and other personnel costs, costs of engineers, superintendents, security and other employees, charges under maintenance and service contracts for heating and air-conditioning system, window repair and cleaning, building maintenance, any equipment rental and all supplies purchased for use in the building, and (ii) all real estate taxes and annual installments of assessments or payments in lieu of taxes, and interest thereon, levied, assessed or imposed at any time by any municipal, county or state government or any governmental authority upon or against the building, appurtenances to the building and the land

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on which the building is located and also any tax or assessment levied, assessed or imposed at any time by any governmental authority in connection with the receipt of income or rents from the building and/or the land on which the building is located to the extent that the same shall be in lieu of all or a portion of any of the aforesaid real estate taxes or assessments upon or against the building and/or said land, and any gross receipts tax, sales tax, tax on rents or other impositions paid or which will be payable by Lessor by reason of the receipt of base rent, additional rent, or any other amount due hereunder. Real estate taxes for any calendar year shall be deemed to be the taxes payable in the respective calendar years, even though the levy or assessment thereof may be for a different fiscal year. Lessor agrees to exercise due care and diligence to obtain these common area services and supplies at competitive and reasonable market costs with acceptable quality and service standards. 4. UTILITIES; SERVICES 4.1 Landlord's Obligations. Subject to Tenant's obligations to make direct payments to utility companies furnishing electricity and gas, Lessor shall provide the following services: (i) Janitor services and customary cleaning in and about the common areas of the building; (ii) General trash removal except that Tenant is responsible for any additional charges due to the removal of large, bulky or excess trash. (iii) Heat and air-conditioning to provide a reasonably comfortable temperature in the leased premises and the common areas of the building from 8:00 a.m. to 6:00 p.m., Monday through Friday and from 8:00 a.m. to 1:00 p.m. on Saturday, during such seasons of the year when such services are normally and usually furnished in office buildings in Minnesota. Tenant's space at Lessor's expense will be furnished with a thermostat to allow tenant to regulate usage of heating and air-conditioning. (iv) City water and sewage service for drinking, lavatory and toilet purposes drawn through fixtures installed by or with permission of Lessor. Any additional water service required by Tenant for purposes in addition to those described in the preceding sentence shall be installed and paid for at Tenant's expense. (v) Reasonably adequate electricity for lighting and general office purposes, but subject to the restriction described in paragraph 4.2. Any additional capacity required by Tenant shall be installed and paid for at Tenant's expense. Tenant shall furnish and install all replacement lighting, tubes, lamps, bulbs and ballasts as required in the leased premises. 4.2 Tenant's Obligations 4.2(a) Gas & Electric. Tenant shall be billed in its own name and make direct payment to any utility company for the furnishing of gas and electricity for general office purposes, excepting heating and cooling of the building.

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4.3 Interruption of Services. Lessor does not warrant that any services or utilities will be free from interruptions caused by breakdowns, maintenance, repairs, improvements, alterations, strikes, stoppages, shortages, accidents, inability of Lessor to obtain fuel or supplies or any other cause or causes beyond the reasonable control of Lessor. Any such interruption of service shall not be deemed an eviction or disturbance of Tenant's use or possession of the leased premises or any part thereof, or render Lessor liability to Tenant for damages or relieve Tenant from performance of Tenant's obligations under this Lease. Wherever in this article any terms, covenants or conditions are required to be kept or performed by the Lessor, the Lessor shall be deemed to have kept and performed such terms, covenants and conditions notwithstanding any action taken by the Lessor, if such action is taken pursuant to any governmental regulations, requirements, directives or requests. 4.4 Conservation of Utility Services. Tenant shall conserve heat, air-conditioning, water and electricity and shall not neglect or misuse water fixtures, electric lights and heating and air-conditioning apparatus. It is expressly understood that Minnesota State Building Code limits the design capacity of heating and cooling systems, and that said building code does not permit design capacities to exceed heating capacity in excess of 87 degrees above outside temperatures or a cooling capacity of greater than 11 degrees below outside temperatures. Tenant recognizes, therefore, that the heating and cooling system may not heat or cool beyond that design criteria. It is further understood that Lessor may from time to time be requested or prohibited by governmental statutes, rules, regulations, ordinances, administrative orders or directives from heating or cooling the building or the leased premises beyond certain specified temperature ranges. 5. MAINTENANCE AND REPAIRS 5.1 Lessor's Obligations. Lessor shall, at its expense but subject to Tenant's obligation to make contributions for increases in operating expenses described in Section 3, make all necessary structural repairs to the Building and appurtenant facilities as well as all other repairs, replacements and appropriate maintenance to the lease premises, the Building and appurtenant facilities and the surrounding grounds, in order to keep the same in good order and repair and where appropriate, in a safe, neat, clean and sanitary condition, except for all repairs or maintenance measures required herein to be made by Tenant. Without limiting the generality of the foregoing, Lessor shall repair and maintain all public hallways, stairways, glass, and all plumbing, heat, air-conditioning, gas and electricity to the building. Lessor shall keep the sidewalks and parking lots free from ice and snow and other obstructions and keep in orderly condition the lawn and other vegetation and soil on the property. All repairs, alterations, improvements or additions referred to in this section shall be made with as little inconvenience to Tenant's business as reasonably possible and in such manner as not to unreasonably interfere therewith. Where economically and structurally feasible, all such pipes, ducts and conduits shall be installed and concealed behind the walls, columns and ceilings of the leased premises or shall be completely furred at points immediately adjacent to the walls, columns and ceiling. 5.2 Tenant's Obligations. Tenant agrees to notify Lessor of the necessity for any repairs of which Tenant may have knowledge and for which Lessor may be responsible under the

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provisions of the preceding paragraph. Subject to Lessor's obligation to provide janitorial services as set forth in Section 4 herein, Tenant, all at Tenant's own cost and expense, shall keep the leased premises neat, clean and in sanitary condition, and in as good order and repair as of the time Tenant took possession of the same, reasonable wear and tear and damage from fire or other casualty for which insurance proceeds are available to Lessor and Tenant excepted. All damage or injury to the leased premises and to its fixtures, appurtenances and equipment or to the Building, if not covered by fire and extended coverage insurance on the Building, caused by (i) Tenant moving property in or out of the building, or in or out of the leased premises, however caused, or (ii) by installation or removal of furniture, fixtures or other property, however caused, or (iii) fire, explosion, short circuits, flow or leakage of water, steam, gas, sewage or odors or by frost or by bursting or leaking of pipes or plumbing works, or other cause if due to carelessness, omission, neglect, improper conduct or other cause of Tenant, its servants, employees, agent, visitors, or licenses, shall be repaired, restored or replaced promptly by Tenant at its sole cost and expense to the satisfaction of Lessor. All aforesaid repairs, restorations, and replacements shall be in quality and class equal to the original work or installations and shall be done in a good and worker-like manner. If Tenant fails to promptly make such repairs, restorations or replacements, the same may be made by Lessor at the expense of Tenant. If the Lessor makes such repairs, Lessor will not be responsible to the Tenant for any loss or damage that may accrue to Tenant's property or business by reason of making the repairs and all sums so spent and expenses incurred by Lessor, less any insurance proceeds received by Lessor, shall be collectible as additional rent and shall be paid by Tenant within ten (10) days after delivery of a bill or statement therefor. 6. LOSS OR DAMAGE 6.1 Tenant's Property. All property and improvements of Tenant in or about the leased premises shall be kept, stored and/or maintained at the sole risk of Tenant without any liability of Lessor for loss or damage thereto, including but not limited to loss from fire, explosion, wind, rain, hail, water leakage, bursting of pipes or conduits, sprinklers, gas, electricity, or structural failure, regardless of negligence, nor shall Lessor be liable to Tenant for any interruption of business conducted by Tenant, regardless of cause. 6.2 Casualty; Termination of Lease. If the Building is damaged or destroyed by fire or other casualty and the Lessor, by notice given to Tenant not later than one hundred eighty (180) days after such damage or destruction, elects not to restore the Building, then this Lease shall cease and terminate, and any rents and all additional payments due hereunder shall be apportioned, as of the date of such damage or destruction, and Tenant shall vacate the leased premises and surrender the same to Lessor on or before thirty (30) days after the giving of such notice. 6.3 Casualty; Restoration of Building. If a portion of the leased premises is damaged by a fire or other casualty and Lessor does elect to restore the Building, then this Lease shall not terminate and Lessor shall, at its expense, restore the leased premises, exclusive of any improvements or other changes made to the leased premises by the Tenant, to as near the condition which existed immediately prior to such damage or destruction as reasonably possible.

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6.4 Casualty; Abatement of Rent. Base rent shall abate during such period of time as the leased premises are rendered untenantable by any such casualty, in the proportion that the untenantable portion of the leased premises bears to the entire leased premises. 7. ALTERATIONS 7.1 Alterations by Lessor 7.1(a) Common Areas. Lessor shall have the right at any time, without thereby creating an actual or constructive eviction or incurring any liability to Tenant therefor, to change the arrangement or location of entrances, passageways, doors and doorways, corridors, stairs, toilets and other like public service portions of the building, provided that Lessor may not by such change substantially diminish or interfere with Tenant's use of the leased premises. 7.1(b) Upon Vacancy. During the last ninety (90) days of the term of this Lease, if during or prior to that time Tenant vacates the leased premises, Lessor shall have the right to decorate, remodel, repair, alter or otherwise prepare the leased premises for occupancy. 7.2 Alterations by Tenant. 7.2(a) Consent Required. Tenant will not make any additions or improvements to the leased premises without first obtaining the prior written consent of Lessor as to the character of such alterations, additions or improvements and the manner of doing the work, which consent may, except as to interior decorating, be withheld. If any such alterations, decoration, addition or improvement is made without the prior written consent of Lessor, Lessor may correct or remove the same and the Tenant shall be liable for any and all expenses incurred by Landlord in the performance of this work. Tenant shall obtain, at its own cost, all necessary permits and licenses. 7.2(b) Quality of Work. Tenant agrees that all work shall be done in a good and workmanship like manner, in conformance with all municipal and other government codes and that the structural integrity of the building shall not be impaired. 7.2(c) Security. Before commencing any construction, Tenant shall deposit with Lessor a bond or certificate not to exceed one and one-half (11/2) times the reasonably estimated cost of the alteration, addition or improvements, in form and amount and with surety satisfactory to Lessor, guaranteeing the completion of the work free and clear of all mechanics and materialmen's liens. 7.2(d) Restoration to Original Condition/Ownership. All alterations, additions, improvements and all fixtures and equipment attached to, or built into, the leased premises, whether by Lessor at its own expense or at the expense of the Tenant, or by the Tenant, shall remain as Lessor's property and shall be surrendered with the leased premises as a part thereof, and shall not be removed by the Tenant at the end of the term, unless otherwise agreed. However, if before termination or within fifteen (15) days after, the Lessor so directs by written notice, the Tenant shall promptly remove the aforesaid alterations, additions, improvements, which shall be designated in such notice, and the Tenant shall repair any damage caused by removal. Tenant shall, however, remain the owner of any installed trade fixture and shall have

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the right to remove such trade fixture at the expiration of this Lease Agreement, so long as Tenant's not then in default and the premises are restored to the original condition. 7.3 Signs. The Tenant shall have the right, at its own risk and expense, to place signs identifying its business next to or on any doors opening directly into the leased premises, so long as all such signs conform with the Lessor's building standards and criteria and with all applicable zoning laws. Said signs shall not be erected without the written prior approval of the Lessor. Tenant agrees to maintain its signs in good repair, to remove its signs at the end of the term or any extended term, repairing any damage caused by such removal, and to hold Lessor harmless from any loss, cost or damages resulting from the erection, existence, maintenance or removal of Tenant's signs. The Tenant agrees not to place signs on or near its window(s) which are easily visihle from the exterior. The Lessor reserves the right to remove all unapproved signs at the expense of Tenant. 8. INDEMNIFICATION 8.1 Tenant to Indemnify. Tenant shall hold Lessor harmless from and indemnify Lessor against any and all liability, damage, loss and expense arising or resulting from the acts or omission of or caused by Tenant or Tenant's employees, servants, agents, guests, assigns, subtenants, visitors or licensees in, upon or about the demised premises, the Building or the adjacent areas, including all common areas or arising out of or related to the use and occupancy of the demised premises or the business or activity conducted with respect thereto, including injuries to person and property. 8.2 Limit of Lessor's Liability. In the event Tenant shall have any claim of any nature whatsoever in respect to this Lease or Tenant's use of the leased premises or any part of the Building and notwithstanding any other provisions of this Lease to the contrary, Tenant shall have no right or cause of action against Lessor personally or against any of the partners of Lessor. Tenant expressly consents as a condition of this Lease to look solely to Lessor's interest in the Building and underlying land and any insurance thereon in the event of any such claim. 8.3 Liens. Tenant will not commit or suffer any act or neglect whereby the leased premises or any part of the Building or land on which the Building is located will, at any time during the term of this Lease, become subject to any attachment, judgment, lien, charge or encumbrance whatsoever, and will indemnify and hold Lessor harmless from all loss, cost and expense with respect to such encumbrance. If Tenant shall fail to discharge any such lien within ten (10) days after notice from Lessor, Lessor may, at its option, discharge the same and treat the cost thereof, plus interest thereon at the rate of eight percent (8%) per annum, as additional rent payable with the monthly installment of base rent next becoming due, it being expressly agreed that such discharge by Lessor shall not be deemed to waive or release the default of Tenant in not discharging the same. 8.4 Joint and Several Liability. If more than one person or entity shall sign this Lease, the obligations set forth herein shall be deemed joint and several obligations of each such party.

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9. INSURANCE 9.1 Tenant Self-insured. Tenant is self-insured for liability and will indemnify Lessor as stated in this lease. OR 9.1 Tenant Insurance. Tenant shall carry contents insurance in an amount to be agreed upon by the parties and will provide Lessor with proof of such insurance. 9.2 Lessor's Insurance. Lessor shall keep the building and any leasehold improvements installed by Lessor at its expense, insured during the term of this Lease, against loss or damage by fire and by any of the casualties covered by standard extended coverage in an amount at least equal to the insurable value of the building, minus deductibles. Such policy shall contain a provision that the policy shall not be cancelled without a ten (10) day written notice to Tenant. 10. SUBROGATION WAIVER Notwithstanding any other provision in this Lease to the contrary, Lessor and Tenant hereby release each other from any and all liability or responsibility to the other or anyone claiming through or under them by way of subrogation or otherwise for any loss or damage to person or property where and to the extent such loss or damage is insured against under any insurance policy, even if such loss or damage shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible. Lessor and Tenant each agree that its insurance policies will include such a clause or endorsement so long as the same shall be available without cost. In the event such a provision is not available without cost, the released party shall pay the cost thereof to the releasing party. 11. LESSOR'S RIGHT OF ENTRY 11.1 For Inspection. Lessor and Lessor's agents and representatives shall have the right to enter into or upon the leased premises, or any part thereof at all reasonable hours for the purpose of examining the same. 11.2 To Show. Upon twenty-four (24) hours notice to the Tenant, Lessor or Lessor's agents shall have the right to show the leased premises to persons wishing to purchase or lease the same. During the ninety (90) day period prior to the expiration of the term of this Lease, or any renewal thereof, Lessor or Lessor's agents shall have the right to place the usual "to let" notice on the leased premises, and Tenant agrees to permit same to remain thereon without hindrance or molestation. 11.3 For repairs. Lessor and Lessor's agents shall have the right to enter the leased premises at all times upon reasonable notice, except in emergencies, and then without notice, to make such alterations, improvements, repairs or additions to pipes, ducts and conduits or other machinery or equipment of Lessor, or make such other alterations, improvements, repairs or

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additions as Lessor may deem necessary or desirable, and to take all material into and upon the leased premises as may be required of any such purposes without the same constituting an eviction of Tenant in whole or in part, provided the Lessor repairs and refinishes the affected areas and provided that Tenant's usable space is not unreasonably diminished and Tenant's use and enjoyment of the leased premises is not unreasonably interfered with. 11.4 Pass Keys. Lessor shall have the right to have pass keys to the leased premises. 12. CONDEMNATION 12.1 Total or Material Partial Condemnation. If the entire Building or appurtenant parking facilities is taken or condemned by any authority having the power of eminent domain, this Lease shall at once cease and terminate and any rents and all additional payments due hereunder shall be apportioned, as of the date when Tenant shall by reason of such taking or condemnation, lose the right to the possession of the leased premises. If fifty percent (50%) or more of the rentable area of the Building is taken or condemned by any authority having the power of eminent domain or if a material portion of the leased premises is so taken that Tenant's business can no longer be carried on therein, either party hereto shall have the right to terminate this Lease by giving written notice thereof to the other party hereto within ninety (90) days after the taking or condemnation. If either party hereto elects to terminate this Lease by reason of said taking or condemnation, this Lease shall cease and terminate, and any rents and all additional payments due hereunder shall be apportioned. In the event of condemnation, Tenant shall look to condemnor for any relocation benefits pursuant to Minn. Stat. § 117.52, et seq. (1990). 12.2 Non-Material Partial Condemnation. If any portion of the building is taken or condemned by any authority having the power of eminent domain and this Lease is not thereby terminated by either party hereto, Lessor shall, at its expense, restore the leased premises, exclusive of any improvements or changes made to the leased premises by Tenant, to as near the condition which existed immediately prior to the day of taking as reasonably possible, and rent shall abate during such period of time as the leased premises is untenantable, in the proportion that the untenantable portion of the leased premises bears to the entire leased premises; provided, however, that Lessor shall have no obligation to expend any amount for such restoration beyond the net amount received by Landlord as damages for the portion of Building so taken. 12.3 Disposition of Condemnation Award. All compensation awarded for any taking of the building or any part thereof, including both the fee and the leasehold estate, shall belong to and be the property of Lessor; provided, however, that any compensation awarded for any alterations, additions or improvements made at the Tenant's expense shall be the Tenant's. Any separate award made to Tenant for moving expenses shall be Tenant's sole property. 13. ASSIGNMENT; SUBLETTING 13.1 Consent Required to Assign or Sublet. Tenant shall not (1) sell, assign, mortgage, pledge, hypothecate or in any manner transfer this Lease or any estate or interest hereunder; or (2) sublet the leased premises or any part or parts thereof without the prior written consent of Landlord in each instance. Such consent may be upon such terms and conditions as

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required by Lessor. Consent by Lessor to any sale, assignment, mortgage, pledge, hypothecation, sublease or other transfer shall not be a consent to any other of the same. 13.2 Change in Identity of Tenant. If, at any time during the term of this Lease, Tenant, and/or the guarantor hereof, if any, is (i) a corporation or a trust whether or not having shares of beneficial interest and there shall occur any change in the identity of any of the persons then having power to participate in the election or appointment of the directors, trustees or other persons exercising like functions and managing the affairs of Tenant or (ii) a partnership or association of otherwise not a natural person and is not a corporation or a trust and there shall occur any change in the identity of any of the persons who then are members of such partnership or association or who comprise Tenant, then the occurrence of any such change shall be deemed to be a prohibited assignment or subletting within the meaning of Section 13.1 for which the written consent of Lessor shall be required. This section shall not apply if Tenant or any guarantor is a corporation whose outstanding voting stock is listed on a national securities exchange or is wholly owned by another corporation whose stock is so listed. 14. TRANSFER OF OWNERSHIP 14.1 Lessor's Right. Lessor's right to assign this Lease or sell or convey the Building and/or the leased premises is and shall remain unqualified. Upon any said assignment, sale or conveyance, and the assumption for the benefit of Tenant of all the Lessor's obligations hereunder, the assigning, selling or conveying Lessor shall not be subject to any liability resulting from any act. 14.2 Successors. This Lease and the terms, conditions and covenants herein contained shall inure to the benefit of and be binding upon Lessor, its successors and assigns, and shall inure to the benefit of and be binding upon Tenant and its successors and permitted assigns. 14.3 Attornment. In the event of (i) any sale, transfer, assignment or other conveyance of all or a divided or undivided part of Lessor's interest in all or part of the Building; (ii) any proceeding brought for the foreclosure of any mortgage, trust deed or other security instrument, or for the exercise of any power of sale under any mortgage, trust deed or other security instrument covering all or part of the Building; or (iii) any cancellation or termination of any ground or underlying lease covering all or part of the eland on which the Building is located, Tenant shall attorn to and recognize as Lessor thereunder any purchaser, transferee, foreclosing mortgagee, trust beneficiary or secured party, purchaser at any public or private foreclosure sale, or underlying lessor. Tenant shall within ten (10) days after written receipt thereof, execute and acknowledge any instrument reasonably required to evidence such attornment and recognition and shall deliver such executed doculnent to the party requiring the same within said limited period. In the event Tenant fails so to execute and deliver such required instrument within said limited period, it hereby irrevocably appoints any said purchaser, transferee, assignee, foreclosing mortgagee, trust beneficiary or secured party, purchaser at any public or private foreclosure sale, or underlying lessor, or the designee of any of them, as its attorney-in-fact so to execute, acknowledge and deliver said instrument.

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14.4 Estoppel Certificates. Tenant agrees, at any time and from time to time, upon not less than five (5) days' prior written notice by Lessor, to execute, acknowledge and deliver to Lessor or a party designated by Lessor a statement in writing (i) certifying that this Lease is unmodified and in full force and effect, or if there have been modifications, that the Lease is in full force and effect as modified and stating the modifications, (ii) stating the dates to which the rent and other charges hereunder have been paid by Tenant, (iii) stating whether or not to the best knowledge of Tenant, Lessor is in default in the performance of any covenant, agreement or condition contained in this Lease, and if so, specifying each such default of which Tenant may have knowledge, and (iv) stating the address to which notices to Tenant should be sent pursuant to Article 24 hereof, (v) agreeing that Tenant and Lessor will not thereafter modify the Lease without the approval of any mortgagee identified by Lessor, and (vi) agreeing that, except for any security deposit required herein, Tenant shall not prepay any rent more than 45 days in advance. Any such statement delivered pursuant hereto may be relied upon by any owner of the Building, any prospective purchaser of the Building, any mortgagee or prospective mortgagee of the Building or of Lessor's interest or any prospective assignee of any such mortgagee. 15. SUBORDINATION This Lease and Tenant's rights hereunder are and shall be subject and subordinate to the operation and effect of all terms and conditions contained in any mortgage, leasehold mortgage, trust deed, other security instrument, ground or underlying lease and to all renewals, extensions and modifications thereof, now or hereafter on the Building, the parcel of land on which the Building is located, or any part thereof. In the even Lessor or any such mortgagee, trust beneficiary, secured party or underlying lessor requests in writing confirmation of such subordination, Tenant shall, within ten (10) days following receipt, execute, acknowledge and deliver to the requesting party any instrument reasonably required to evidence such subordination. In the event Tenant fails so to execute, acknowledge and deliver a required instrument within said limited period, it hereby irrevocably appoints Lessor its attorney-in-fact to execute, acknowledge and deliver the same. 16. BANKRUPTCY; INSOLVENCY If at any time after the date this Lease is entered in, (i) any proceedings in bankruptcy, insolvency or reorganization shall be instituted against Tenant pursuant to any federal or state law now or hereafter enacted, or any receiver or trustee shall be appointed for all or any portion of Tenant's business or property, or any execution or attachment shall issue against Tenant or Tenant's business or property or against the leasehold estate created hereby and any of said proceedings, process or appointment be not discharged and dismissed within sixty (60) days from the date of said filing, appointment or issuance; or (ii) Tenant shall be adjudged as bankrupt or insolvent, or Tenant shall make an assignment for the benefit of creditors, or Tenant shall file a voluntary petition in bankruptcy or petition for or enter into an arrangement for reorganization, composition or any other arrangement with Tenant's creditors under any federal or state law now or hereafter enacted, or this [,ease or the estate of Tenant herein shall pass to or devolve upon, by operation of law or otherwise, anyone other than Tenant except as herein provided, the occurrence of any one of said contingencies shall be deemed to constitute and shall be construed as a repudiation by Tenant of Tenant's obligations hereunder and shall cause this Lease to be

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terminated; and upon said termination Lessor shall have the immediate right to reenter the leased premises and to remove all persons and property therefrom and this Lease shall not be treated as an asset of the Tenant's estate and neither the Tenant nor anyone claiming by, through or under Tenant by virtue of any law or any order of any court shall be entitled to the possession of the leased premises or to remain in the possession thereof. Upon the termination of this Lease, as aforesaid, Lessor shall be entitled to exercise such rights and remedies to recover from Tenant as damages such amounts as are specified in Section 18 hereof as payable to Lessor upon termination, unless any statute or rule of law governing the proceedings in which such amounts are to be proved shall lawfully limit the amount of such claims capable of being proved, in which case Lessor shall be entitled to recover, as and for liquidated damages, the maximum amount which may be allowed under any said statute or law. 17. DEFAULT 17.1 Lessor's Breach. Should Lessor breach any of the covenants or obligations of this Lease, Tenant shall give Lessor written notice of such breach. Lessor shall commence to cure such breach within ten (10) days following the giving of such notice, and having commenced, shall diligently proceed with and complete the curing of such breach within a reasonable time. If Lessor fails to cure such breach after notice as herein provided, Tenant shall have the right to cure such breach or terminate this Lease. If Tenant cures such breach, Lessor shall, upon demand, reimburse Tenant for the cost of curing such breach, or Tenant may, at its option, set up such cost against future rent. 17.2 Tenant's Breach. Should Tenant breach any of the terms of this Lease including the covenant to pay rent, Lessor shall give Tenant written notice of such breach and Tenant shall immediately commence to cure such breach, and shall diligently proceed with and complete the curing of such breach within a reasonable time. 17.3 Force Majeure. The time within which the parties hereto shall be required to perform any act or acts under this Lease except for payment of monies shall be extended to the extent that the performance of such act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion, collapse of structures, riot, war, delays or restrictions by governmental authorities, inability to obtain or use necessary materials, or any other cause beyond the reasonable control of a party unless the occurrence could have been foreseen and reasonable action could have been taken to prevent the delay, provided, however, that the party entitled to such extension hereunder shall give notice to the other party of the occurrence causing said delay. Any such extension of time to perform shall not serve to extend the term of this Lease. 18. RE-ENTRY 18.1 I,essor's Option. Upon re-entry Lessor may: (i) terminate this Lease and/or (ii) terminate Tenant's right to possession on part or all of the leased premises.

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18.2 Costs of Re-entry. Upon such re-entry, whether or not Lessor shall terminate this Lease, Tenant shall pay to Lessor upon demand (i) all rent, additional rent and any other amount due to Lessor at the time of re-entry and (ii) all costs and expenses incurred by Lessor to effect such reentry, including without limitation, repairs to any damages sustained by the leased premises as a consequence of such re-entry. No such re-entry shall be deemed a termination of this Lease unless Lessor notifies Tenant that this Lease is terminated; and any such termination shall be effective only as of the date set forth in such notice. 18.3 Re-entry Without Termination. Following any re-entry, Lessor may, if it does not elect to terminate this Lease, relet the leased premises or any part thereof for the account of Tenant for such term or terms whether longer or shorter than the unexpired term of this Lease, at such rent and upon such reasonable terms, conditions and covenants as Lessor, in its sole discretion, may deem advisable. Upon each such reletting, all rent received by Lessor shall be applied to the following obligations of Tenant to the extent not then satisfied. First, to the re-entry costs described in Section 18.2; second, to any costs and expenses incurred by Lessor in reletting the leased premises or part thereof, including, without limitation, the costs of reasonable brokers' and attorney's fees; third to the payment of any rent or additional rent unpaid and due to Lessor at the time of such reletting; fourth, to any other unpaid amount then due to Lessor; and the balance if any, shall be held by Lessor and applied in payment of rent and additional rent as the same shall become due hereunder. If the rent received upon such reletting during any calendar month shall be less than the rent that would have been paid by Tenant for that month, Tenant shall pay the deficiency to Lessor, such deficiency being calculated and paid months. 19. TERMINATION 19.1 Expiration of Term. Unless otherwise renewed, extended or terminated, this Lease shall terminate (date) . 19.2 Loss of Fundings. Continuation of this Lease is contingent upon continued state funding for the program for which the leased premises are required. In the event that adequate funding is not allocated, Tenant may terminate this Lease upon thirty (30) days' written notice. No penalty in any form shall be levied against Tenant for termination under this clause. 19.3 Condition of Premises. On the last day of the term of this Lease or on the sooner termination thereof, Tenant shall peaceably surrender the Leased Premises broom-clean and in as good condition as when received, except for reasonable wear and tear and except for damage which Landlord is obligated to repair. 19.4 Removal of Tenant's Property. If Tenant shall vacate or surrender the leased premises after the termination of this Lease without removing all of Tenant's personal property and fixtures as agreed, Lessor may, in Lessor's sole discretion, elect to treat such property as having been abandoned by Tenant and, in such event, Tenant hereby authorizes Lessor to dispose of such property without advance notice to Tenant. Upon demand, Tenant shall reimburse Lessor for all such costs of disposal.

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20. ELECTION OF REMEDIES/NON-WAIVER No remedy provided hereunder shall be deemed an exclusive remedy and the election of any such remedy shall not bar pursuit of any other remedy or any combination thereof, or subsequent seeking of the same remedy for other damages or otherwise, whether available hereunder or existing at law or in equity. No waiver of any breach of any covenant, condition or agreement herein contained shall operate as a waiver of any subsequent breach thereof. No payment by Tenant or receipt by Lessor of a lesser amount than the monthly rent installment due shall be deemed to be other than on account of the earliest rent due. Lessor may accept such check or payment without prejudice to Lessor's right to recover the balance of such rent or to pursue any other remedy provided in this Lease. Lessor, at its option, may demand payment by certified check or money order. Any endorsement or statement on any check or letter accompanying a check for payment of rent shall not be deemed an accord and satisfaction unless so stated in writing by Lessor. No re-entry of Lessor, and no acceptance by Lessor of keys from Tenant, shall be considered an acceptance of a surrender of the Lease, unless so stated in writing by Lessor. 21. QUIET ENJOYMENT Lessor warrants that it has the right to lease the leased premises and that so long as Tenant shall perform each and every term, condition and covenant to be performed and observed by Tenant hereunder, Tenant shall have peaceful and quiet use and possession of the leased premises without hindrance on the part of Lessor. 22. SHORT-FORM LEASE Each party hereto agrees that it shall, upon the request of the other given at any time during the term of this Lease, execute, acknowledge and deliver to the other a short form of lease meeting the requirements of the laws of the State of Minnesota in recordable form. Preparation and recording shall be done by Lessor and charges therefor, as well as for documentary stamps or like tax, shall be paid for by the requesting party. The terms of such short form, if executed, shall constitute a part of this Lease as though recited herein. 23. RECORDING Tenant shall not record this Lease without prior consent of the Lessor. 24. NOTIFICATION Whenever notice is required by the terms hereof, it shall be in writing and delivered by hand or by certified or registered mail addressed to Lessor at (Address) , Attention: (Name) , and to Tenant, at the leased premises, Attention: (Name) and c/o County Administrator, (Address) . Copies of all notices to Tenant must also be sent to the County Auditor and the County Attorney at the County (Address) . If notice is given by mail, it shall be effective two (2) days after mailing.

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25. TIME OF ESSENCE Lessor and Tenant agree that time is of the essence in the Lease and the performance and payment of each and every obligation herein. 26. CONTRACT INTERPRETATION 26.1 Captions; Meanings. The section captions and headings herein are for convenience and reference only and do not limit or construe the provisions hereof. When the context so requires, the neuter gender includes the masculine and/or feminine; and the singular includes the plural. 26.2 Entire Agreement. This Lease represents the entire agreement between the parties hereto, and there are no agreements, understandings or undertakings except as set forth herein. All prior negotiations and writings between the parties and their representatives are superseded hereby. This Lease may not be amended, modified or supplemented except by a writing, duly and properly executed, and no term, condition or covenant hereof may be waived other than by such writing. 26.3 Applicable Law; Severability. The validity, performance, interpretation and enforcement of this Lease shall be governed by the laws of the State of Minnesota. If any provision of this Lease, or portion thereof, or the application thereof to any person or circumstance shall, to any extent, be held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Lease shall not be affected thereby and each provision of this Lease shall be valid and enforceable to the fullest extent permitted by law. 27. AUTHORITY Each individual executing this Lease on behalf of a corporation or organization represents and warrants that they are duly authorized to execute and deliver this Lease on behalf of said corporation or organization and that this Lease is a valid and binding obligation of said corporation or organization in accordance with the terms hereof. 28. MISCELLANEOUS 28.1 No Partnership. Nothing contained in this Lease shall be deemed or construed to create a partnership or joint venture of or between Lessor and Tenant, or to create any other relationship between the parties hereto other than that of Landlord and Tenant. 28.2 Brokers. Lessor and Tenant each represent and warrant one to another that except as hereinafter set forth neither of them has employed any broker in carrying on the negotiations relating to this Lease. Lessor shall indemnify and hold Tenant harmless, and Tenant shall indemnify and hold Lessor harmless, from and against any claim or claims for brokerage or other commission arising from or out of any breach of the foregoing representation and warranties by the respective indemnitors.

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IN WITNESS WHEREOF, the parties have executed this Agreement on the dates indicated below. LESSOR TENANT (Individual/Business) COUNTY OF BY: BY: Name/Title Chairperson Date of signature: Date of Signature: BY: Auditor APPROVED AS TO FORM & EXECUTION BY: Assistant County Attorney

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Antenna Site

Lease Agreement THIS INDENTURE made this day of , 20 , by and between (property owner) , a Minnesota corporation, hereinafter referred to as Lessor, and the COUNTY OF , hereinafter referred to as Lessee: WHEREAS, Lessor presently owns and operates a microwave tower and associated equipment in County, State of Minnesota, Latitude 47 degrees, 06 minutes, 31 seconds North, Longitude 91 degrees, 59 minutes, 52 seconds, which property is described as part of the Northeast Quarter of the Northwest Quarter (NE 1/4 of NW 1/4) and the Southeast Quarter of the Northwest Quarter (SE 1/4 of NW 1/4), Section Four (4), Township Fifty-three (53) North, Range Thirteen (13) West, County. WHEREAS, Lessee presently desires to place certain of its equipment upon said microwave tower and construct an equipment shelter on Lessor's property. NOW, THEREFORE, in consideration of the premises and of the mutual covenants of the parties, Lessor does hereby demise, lease, and let unto the Lessee space on its microwave tower and its property as more specifically designated herein. TO HAVE AND TO HOLD the said premises unto the Lease for a term of five (5) years, subject to earlier cancellation as hereafter provided, commencing on , 20 , yielding and paying as rent therefor the sum of (dollars) per month, payable annually. The first payment will be due upon acceptance of this Agreement by Lessee. Subsequent payments will be due annually thereafter as long as this Agreement shall remain in force. LESSEE hereby covenants with Lessor that no harmful interference will be caused to the operation of Lessor's microwave equipment, or mobile radio equipment due to the installation or operation of Lessee's equipment, and if any such interference is caused, operation of Lessee's equipment will immediately cease. If the cause of the interference cannot be corrected within a reasonable period of time, the Lessee agrees to remove its equipment from the facilities, and this Lease Agreement shall become null and void. LESSEE agrees to indemnify, protect, and hold Lessor harmless against any and all damage, expense, charge, loss, or liability which may occur by reason of Lessee's installation, maintenance, or operation of its equipment upon the Lessor's microwave tower and associated facilities. During the term of this Agreement and at its expense, Lessee further agrees to maintain such adequate insurance as will fully protect Lessor against all claims, liability, damage, and unknown hazards by reason of this Agreement. LESSOR shall not be liable for any loss of profits, special or consequential damages from the use of its facilities, or interruption or disturbance of the service provided by this Agreement.

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LESSOR hereby agrees with Lessee that Lessor's microwave tower and associated facilities shall be made available to Lessee for maintenance of said Lessee's equipment. Lessee will notify Lessor's system operators to coordinate entrance and will notify the system operators when leaving Lessor's microwave site. LESSEE'S equipment that will be attached to Lessor's microwave tower and associated facilities shall consist of the following: 1. One UHF antenna (DB Products DB-436) and two VHF antennas (DB-224S 20

feet and DB-230 6 feet) to be side mounted on the tower and on the south (195 feet), northwest (200 feet), and northwest (195 feet) legs, respectively.

2. Antenna mounts for the above antennas will be attached to the tower legs.

Existing holes in the tower legs will be utilized to attach antenna mounts. No holes will be made in the tower structure unless written permission has been obtained from Lessor.

3. Coaxial cables will be attached to the Lessor's microwave tower wave-guide

support brackets. These brackets are placed every four feet throughout the length of the tower. The coaxial cables will be fastened to the wave-guide brackets with a butterfly clamp every four feet. Coaxial cables will be placed in a straight run up the tower and will be grounded to the tower at the top and at the bottom where the coaxial cables leave the tower. A cable grip will be used at the top of each coaxial cable run and will be fastened securely to the tower structure. All brackets and attaching hardware will be galvanized or stainless steel.

4. One eight foot by twelve foot equipment shelter containing Lessee's radio

equipment to be installed within the fenced area surrounding the tower site. The location will be designated by Lessor.

LESSEE shall maintain the premises in a good condition and state of repair during the continuance of its tenancy, and all work by Lessee or its contractors will be done in a professional and neat appearing manner. LESSEE shall, before the expiration of this Lease, restore the tower to the same condition as that existing at the time of entering upon the same under this Agreement, reasonable and ordinary wear and damages by the elements or by circumstances over which the Lessee has no control excepted. LESSEE further agrees that any damage done to the painted surface of the tower structure during installation or dismantling of Lessee's fixtures shall be promptly corrected by repainting or refinishing same with approved materials, at Lessee's sole cost. LESSOR further states that the designated load limit of Lessor's microwave tower will preclude further installations of equipment once Lessee's equipment has been installed. Should Lessor desire to install additional equipment on said tower in the future. Lessee will have the option of

Property Leases and Easements Antenna Site Lease Agreement

12-2

removing its equipment after termination of this Lease as herein provided or upgrading said tower at Lessee's sole expense to safely support additional equipment. THIS AGREEMENT is subject to the regulations of any regulatory body having jurisdiction hereof, including but not limited to the Federal Communications Commission and Federal Aviation Administration. Lessee shall be responsible for obtaining all permits for construction and the continued operation of said UHF radio communications system. LESSEE agrees to pay the rent at the time and in the manner as stated above and will quit and deliver up the premises to the said Lessor peaceably and quietly at the end of the aforesaid term or at any previous termination thereof for any cause as hereinafter described in this Agreement. It is hereby agreed that either party may cancel the terms of this Lease Agreement by giving 90 days' written notice to the other party. For purposes of notice, the Lessor's address shall be deemed to be ; and Lessee's address shall be . IN WITNESS WHEREOF, both parties hereto have set their hands and seals the day and year above first written. LESSEE: LESSOR: COUNTY OF By: By: Chairperson By: Its County Auditor/Clerk of Board

Property Leases and Easements Antenna Site Lease Agreement

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Office Space Lease

THIS LEASE, made and executed this day of , 20 , by and between (owners), (address) , hereinafter called the Lessor, and the COUNTY DEPARTMENT, (address) , hereinafter called the Lessee: WITNESSETH: That in consideration of the payment of rent and the keeping and performance of the terms and conditions herein by Lessee, Lessor does hereby lease and demise unto Lessee, the premises described as:

An area of approximately square feet on the lower level of the Building in , MN, as outlined in red on attached Exhibit A. The Building is legally described as: Lots , Block , Plat of , Section , Township , Range .

TO HAVE AND TO HOLD the premises for a term beginning at noon on the first day of , 20 , and ending at noon on the first day of , 20 , on a year-to-year basis thereafter. 1) Lessee shall pay rent for said premises to the Building Account or to such other party or parties and place as may subsequently be designated in writing by said Lessor, a yearly rent of $ subject to any adjustments as hereinafter provided for. Yearly rent shall be paid in equal monthly installments of $ , in advance on the first day of each month during the full term of this Lease, beginning on , 20 . Lessee agrees to pay a pro rata share of the heat and utilities for the entire building,which are included in the above rent. Monetary rates each year after the term of the Lease may be readjusted so that Lessee shall pay any increase in said rates on a pro rata square foot basis. The current monthly utility costs are compiled as follows: Heat - $ Electricity - $ Water - $ The additional cost, if any, will be added to Lessee's subsequent monthly billings. Lessor will furnish Lessee, upon request, documentation verifying such increases in utilities. 2) Lessee shall use and occupy the premises for office purposes only and shall not use them in such a manner as to give either governmental authorities, other tenants or Lessor just cause to complain. 3) Lessee shall surrender the premises at the termination of this Lease or any extension thereof in as good condition as they were at commencement of this Lease, reasonable wear and tear or unavoidable casualty expected.

Property Leases and Easements Office Space Lease 13-1

Lessee shall not make any alterations or improvements to the premises or install any wall-to-wall carpet without prior written consent of Lessor, and all such wall-to-wall carpet, alterations, and improvements, except movable office furniture and equipment, shall remain with the premises at the termination of this Lease and become the property of the Lessor. Liability for cost of replacing or repairing any part of the building or the premises contained therein damaged by Lessee or Lessee's agents or employees shall rest solely with Lessee. 4) Lessee shall not encumber or assign this Lease or sublet the premises or any part thereof without prior written consent of Lessor. No action of Lessor in collecting rent from any subtenant, assignee, or occupant shall constitute a waiver hereof. 5) Lessee agrees to hold Lessor harmless and to assume full liability for any loss or damage whatsoever to any person or property occurring on or in said premises and arising out of, by reason of, or during Lessee's use, possession, and occupancy of the premises, except such loss or damage to persons other than Lessee caused by sole negligence or intentional acts of Lessor or of third persons. 6) If Lessee shall default in making any payments after reasonable notice or in keeping and performing the terms and conditions of this Lease or shall abandon or fail to use or occupy the premises or shall become bankrupt or insolvent, Lessor may reenter premises immediately and take possession thereof and at its option, terminate this Lease with respect to all future rights of Lessee, and Lessee hereby expressly waives any notice in writing of intention to reenter. Lessee will indemnify Lessor against all loss of rents and other payments which may accrue by reason of such termination, including all legal fees and expenses incurred in enforcing any of the terms of this Lease. 7) In case the building or any part thereof is destroyed or partially destroyed by fire or other casualty not arising from the fault or negligence of Lessee or those employed by Lessee, Lessor shall repair the damage within a reasonable period of time, due allowance being made for delays beyond control of Lessor, and rent shall abate proportionately to the extent that the premises are untenantable, but in the event the damage shall be so extensive that building and/or premises cannot be substantially restored within ninety (90) days, either Lessor or Lessee shall have the option to terminate this Lease upon thirty (30) days' written notice to the other from date of damage, whereupon this Lease shall terminate and Lessee shall pay rent up to date of damage, and thereafter both Lessor and Lessee shall be free and discharged of all further obligations hereunder. 8) Lessor or its agent shall have reasonable rights of entry for the performance of any of its obligations hereunder, including right to show premises to a prospective tenant or buyer, but no obligation to repair shall be implied from such right or such entry. 9) Each of the parties hereto agrees, at least sixty (60) days before the expiration of this Lease, to give the other party notice in writing of intention not to renew or to extend this Lease, and in case neither party heretofore gives such notice, this Lease shall stand

Property Leases and Easements Office Space Lease 13-2

renewed for a further period of one year from the date of its expiration, with all terms and conditions herein expressed, including this renewal clause, which shall apply to five (5) such future renewals of this Lease. 10) All notices, demands, and communications under the terms and conditions of this lease shall be given in writing and sent by registered mail to (owners) , (address) on behalf of Lessor; and to (County Representative) , (address) , on behalf of Lessee, as the case may be, or to such other addresses as may from time-to-time be requested by Lessor or Lessee. 11) The Lessor shall be responsible for any maintenance and repair to the building, surrounding property, and any such equipment as is part of the building. The Lessor shall be responsible for, and shall pay as they become due, all taxes and assessments upon said premises. 12) Lessee agrees to abide by all rules and regulations covering the restricted use of areas not covered by the terms of this Lease and any regulations covering the health and safety of all tenants or visitors within the buildings, as may be established by Lessor. 13) Lessee shall not display any signs, advertisements, or notices in or on any part of the building without prior written consent of Lessor. 14) If any term or condition of this Lease is illegal, invalid, or unenforceable under present or future laws effective during the term of this Lease, it is the intention of both Lessor and Lessee that the remainder of this Lease shall not be affected thereby mad that in lieu of each such term or condition, there be added as part of this Lease a term or condition as similar as may be possible and be legal, valid, and enforceable. 15) A waiver of any term or condition of this Lease by Lessor shall not be deemed to imply or constitute a further waiver of such breach or a waiver of any other term or condition contained herein. 16) All terms and conditions of this Lease shall completely bind and inure to the benefit of the heirs, legal representatives, successors, and assigns of both Lessor and Lessee. 17) This Lease may be terminated by either Lessor or Lessee, with or without cause, upon sixty (60) days' written notice directed to the other party pursuant to Paragraph 10 above-written. IN WITNESS WHEREOF, the parties hereto have caused these presents to be validly executed in their respective names, as of the day and year first above-written.

Property Leases and Easements Office Space Lease 13-3

LESSORS: LESSEE:

COUNTY BY: BY: Chairperson, County BY: BY: County Auditor Approved as to Form and Execution this Day of , 20 . Assistant County Attorney

Property Leases and Easements Office Space Lease 13-4

Private Easement

Easement No. _______________ THIS INDENTURE, made this ______ day of _______________, 20____, between the State of Minnesota, by and through the Auditor of the County of_____________, hereinafter called the “Grantor,” and __________________________________ hereinafter called the “Grantee.” WITNESSETH: WHEREAS, the Grantee has applied to Grantor for the granting of an easement for access to their property over certain tax-forfeited lands owned by the State of Minnesota, situated in the County of___________ and administered by the County of ___________; and WHEREAS, there are no reasonable alternatives to obtain access to the Grantee’s property; and WHEREAS, exercising the easement will not cause significant adverse environmental or natural resource management impacts. NOW, THEREFORE, Grantor, pursuant to the Authority of Minn. Stat. § 282.04, subd. 4a. and Resolution No. _______________ of the ______ County Board of Commissioners, and for good and valuable consideration, the receipt and sufficiency whereof is hereby acknowledged, which amount constitutes full payment for the rights and interests herein conveyed including payment for any improvements, timber and forest growth that will be destroyed on the easement area, does hereby grant and convey unto the Grantee, until terminated, an easement for the purposes above described, over, under, and across the following described lands: A 66.00 foot wide road easement OVER : [insert legal description], the center line of which is described as follows: [Insert legal description] The right-of-way granted by this instrument is open to the public and confined to the area as shown on the drawing attached hereto as Exhibit A, which is a part hereof. The above instrument is subject to the following grants, agreements, covenants, conditions and restrictions: 1. Outstanding rights and interests, if any. 2. Grantee shall construct and maintain said right-of-way development at its own

expense.

Property Leases and Easements Private Easement 14-1

3. The right-of-way hereby conveyed shall be open to the general public. 4. Cost of any necessary survey will paid by Grantee. 5. Grantee shall during maintenance and operation, protect and preserve soil and

vegetation cover and scenic and aesthetic values on the right-of-way and outside of construction limits.

6. Grantee shall provide for the prevention and control of erosion within the right-of-

way, as reasonably required by the Grantor, that might be affected by operation or maintenance of the proposed right-of-way development, and the Grantee shall maintain all terracing, water bars, lead-off ditches, culverts where necessary, and other preventative works that may be required to accomplish such agreed upon objectives.

7. Grantee may maintain the right-of-way clearing by means of chemicals upon

approval in writing by the Grantor. Application for such approval must be in writing and must specify the time, method, chemicals, and the exact portion of the right-of-way to be chemically treated.

8. Grantee may trim, cut, remove and dispose of such trees and obstructions from

Grantor’s land adjacent to the easement area as reasonably necessary to carry out its maintenance obligations hereunder, together with the right to cut and dispose of all dead, weak, leaning or dangerous trees that will reasonably interfere with usage of the right-of-way area.

9. Grantee shall establish no borrow, sand, or gravel pits, stone quarry, or permanent

storage areas, sites for road operations and maintenance facilities, camps, supply depots or disposal areas within right-of-way, except with prior approval of the Grantor.

10. Grantee shall have the right to close said right-of-way during any emergency,

with the approval of the Grantor. 11. Each party agrees that it shall be responsible for its own acts and omissions and

the results thereof to the extent authorized by law and shall not be responsible for the acts and omissions of the other party and the results thereof. The Grantor’s liability shall be limited by the provisions of the Municipal Tort Claim Act, Minn. Stat. Ch. 466, and other applicable law.

12. Grantor and his assigns and agents shall at all times have the right to enter upon

said right-of-way for any purpose necessary to the performance of lawful powers and duties.

13. Grantor hereby reserves for its own use, all the peat, iron, coal, gold, and other

valuable minerals, and all water power, and all oils and gases, upon all lands

Property Leases and Easements Private Easement 14-2

covered by this easement, and the right to enter upon same for the purposes of exploration and mining same.

14. This easement is subject to cancellation for mining purposes, upon two months’

written notice from the County Auditor. 15. The right, privilege and license hereby granted shall extend to and bind the

successors and assigns of the parties hereto and shall run with the land. 16. The easement and right-of-way herein conveyed may be terminated by the

Grantee upon 30 days’ written notice, by mutual agreement of the parties hereto, or by the Grantor upon thirty (30) days’ written notice to the Grantee if Grantee fails to comply with applicable laws or the terms of this easement; otherwise to remain in effect as long as used for the purposes granted. This easement shall revert to the State in trust for the taxing districts in the event of non-use.

IN TESTIMONY WHEREOF, Grantor has caused this easement to be executed by the Deputy Auditor, County of , the day and year first above written. GRANTOR DEPUTY AUDITOR COUNTY

STATE OF MINNESOTA ) : ss. COUNTY OF ) On this day of , 20 , before me, a Notary Public within and for said County, personally appeared to me personally known, who, being by me duly sworn did say that he is the Auditor (Deputy) of the County of , State of Minnesota, and that the seal affixed to the foregoing instrument is the corporate seal of the County of , and that said instrument was signed and sealed on behalf of the State of Minnesota by its authority, and he acknowledged said instrument to be the free act and deed of the State of Minnesota. Notary Public This instrument was drafted by:

Property Leases and Easements Private Easement 14-3

Road Easement to County KNOW ALL MEN BY THESE PRESENTS, that , husband and wife, as GRANTOR(S), do hereby grant and convey to COUNTY, as GRANTEE, the perpetual right, privilege and easement to survey, construct, use, maintain and rebuild a road within all ditches, culverts, bridges and appurtenances necessary and useful for the safe and prudent use of the right-of-way for such purposes, across the following described land situated in County, Minnesota, to wit: DESCRIPTION: A 66-foot wide easement over and across , County, Minnesota, said easement described as follows: [insert easement description] The road right-of-way granted by this easement is over and across the area described above on a roadway as it is presently existing and established, the location of which is as shown on the drawing marked “Exhibit A,” which is attached hereto and made a part hereof. The road right-of-way granted hereunder shall be for use by GRANTEE and its contractors, and it is agreed and understood that it is not to be construed as an exclusive easement given to the GRANTEES, or that it shall be exclusive to others later granted a similar right. GRANTOR covenants that it is the owner of the lands described herein and has the right to grant and convey right-of-way in the aforesaid manner. The right, privilege and easement hereby granted shall extend to and bind the successors and assigns of the parties hereto and shall run with the land. IN TESTIMONY WHEREOF, the parties hereto have executed this Road Easement this day of . GRANTOR(S) BY: BY: STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) The foregoing Road Easement was acknowledged before me this day of , by and , husband and wife. Notary Public My Commission expires

Property Leases and Easements Road Easement to County 15-1

Lease for Removal of Earthen Material Lease No. Expiration Date This Lease is made this day of , by and between the County of , a body corporate and politic, hereinafter referred to as “Lessor,” and , hereinafter referred to as “Lessee.” WHEREAS, Pursuant to Minn. Stat. 282.04, Subd. 1, and Resolution # adopted by the Board of County Commissioners, the County of has offered at public sale for the purpose of removing earthen materials, tax forfeit land identified and appraised in the Land Department document said land described as follows: and, WHEREAS, was the successful bidder for the above described lease having offered a bid of $ per cubic yard for cubic yards minimum (and a possible cubic yards maximum) of material. NOW, THEREFORE, in consideration of the terms, covenants and obligations hereinafter contained, the parties do agree as follows:

1. Lessee agrees that payment for all materials removed shall be at the rate of $ per cubic yard LOOSE VOLUME MEASURE. Lessee shall make an initial NON-REFUNDABLE DEPOSIT on account to the Land Department in the amount of $ , which amount shall represent the payment for cubic yards of materials, plus $ timber damages, $ administration fee, and $ publication cost, with additional payment(s) to be made at least annually based upon County measurements of the cubic yard volume removed from said land, or 25,000 cubic yards, whichever is greater. Timber damages resulting from additional site development shall be determined by Lessor and paid for by Lessee when billed for materials removed in excess of the minimum taking. 2. Billings and payment for the remainder of the materials taken under this lease shall be based upon bank measures taken after the execution of this lease. Lessor and Lessee agree that bank measures shall be the appropriate method of determination of materials removed; said bank measures to be done in the method and manner deemed acceptable by the Land Commissioner. In the event of any dispute, the decision of the Land Commissioner as to the amount of materials removed shall be final. Conversion of weight, compacted and bank volume measurements to loose volume measurement shall be at the rate of: one cubic yard compacted measure equals 1.3 cubic yards loose volume measure: ore cubic yard bank measure equals 1.2 cubic yards loose volume measure; and, one cubic yard loose volume measure equals 2800 pounds.

Property Leases and Easements Lease for Removal of Earthen Material 16-1

3. The sale of earthen material described herein, DOES NOT IMPLY that the material meets the standards for quality or quantity that may be required for any specific projects on which it may be used. Lessee shall determine the suitability of said materials prior to bidding. “Earthen material” shall include sand, gravel, clay, marl, or common borrow. 4. Payments to Lessor for materials taken shall be made annually or as billed, based on estimates of materials removed as determined by the Land Commissioner from the available documents and data, or for 25,000 cubic yards of materials, whichever is greater. Payments by Lessee shall be made within ten (10) days of billing and checks made payable to the “ County Auditor” and mailed to the Land Department, , MN . At the discretion of the Land Commissioner, the final payment shall be made based upon the final quantities as determined by County records and measurements. 5. Lessor retains the right to have a County Land Department Area Land Manager make periodic inspections of the lease site to insure compliance with the terms of this lease. Further, it is understood and agreed that Lessor may make periodic inquiries and verification concerning the Lessee’s project and amount of materials utilized by Lessee from the lease site. 6. Lessee further agrees that in removing materials from said site, Lessee shall comply with the County Zoning Ordinance including, but not limited to, the following minimum standards:

a. All clearing, excavation, stockpiling or filling attendant to lease operations shall be at least 50 feet from the right-of-way of any public road and common property line between the lease site and , and not within the setback for structures from the shore of any lake or river.

b. All utility line easements shall be observed and any encroachment into the utility

right-of-way shall only be permitted with the written approval of the utility.

c. Any topsoil remaining in the developed lease site after clearing and grubbing operations shall be stripped and stockpiled in a location approved by the County Land Department Area Land Manager, ( ). These stockpiles shall be seeded as directed by the Area Land Manager and only used for reclamation purposes.

d. Existing vegetation shall remain as a screen between the lease site and surrounding

residences and public roads. Where necessary and physically practical, the Area Land Manager may require additional screening between the lease site property and any residences within one quarter of a mile. If additional screening is requested, a sketch and description of the required screening shall be made by the Area Land Manager and provided to Lessee. Lessee shall thereafter complete the requested screening and in a reasonable amount of time and in a reasonable manner.

Property Leases and Easements Lease for Removal of Earthen Material 16-2

e. No surface or ground water may be used unless specifically authorized by the Minnesota Department of Natural Resources and the County Land Department.

f. Lessee shall insure that the lease site shall not drain directly into any protected water.

All areas of the lease site shall be adequately drained to prevent confinement of water and no lease site shall be excavated to a depth below the ground water table unless authorized by the Area Land Manger.

g. Lessee shall take measures to control erosion that has the potential to damage

adjacent land, and control sedimentation that has the potential to leave the site. The access road shall also be maintained in a manner that minimizes erosion.

h. All entrances and exits shall be constructed so as not to create a safety hazard and,

during the hours of operation of the lease site, “trucks hauling” signs shall be placed along all public roadways leading to the lease site at a distance not less than 500 feet from the lease site access road. Signs must be removed or covered when the lease site is not in use for more than a 48-hour period.

i. All barriers controlling access to the lease site, such as gates, etc., shall have prior

approval of the Area Land Manager, and shall be clearly visible to prevent safety hazards to snowmobilers and other members of the public. The use of cable, chain, or similar type barriers is specifically prohibited by Lessor. The access road shall be non-exclusive and will be used as access for other permits that may be issued for this pit.

j. Dust control measures shall be utilized on non-paved routes. Dust control measures

shall also be utilized within the lease site itself if dust leaves the property and regularly affects adjacent residential properties.

k. All road weight limits and other road restrictions placed in effect by the local road

authority shall be observed.

l. Hours of operation shall be limited to 7:00 a.m. to 8:00 p.m., Monday through Saturday. No lease site operations may take place on Memorial Day, Independence Day, Labor Day, and Sundays. The hours of operation may be expanded or further limited if necessary, as determined, and as authorized by the Area Land Manager.

7. Lessee shall also comply with the following conditions:

a. Crushers and hot mix plants to be operated in conjunction with the lease site shall be operated in accordance with Minnesota Pollution Control Agency (MPCA) noise and air quality standards.

Property Leases and Easements Lease for Removal of Earthen Material 16-3

b. Any materials crushed and left stockpiled in this lease site at the expiration of this lease shall become the property of the County Land Department.

c. Lessee shall keep the lease area neat and free from refuse at all times during

the term of this lease and no hazardous waste shall be disposed of on this site. Upon expiration of this lease or cessation of the operation, all equipment of Lessee shall be removed from the site within three months.

d. All trees, brush, stumps and debris resulting from clearing, stripping and lease

site operations shall be burned or buried upon cessation of lease site operations. All burning shall be done in accordance with Minnesota Statues and Department of Natural Resources and MPCA regulations.

8. Lessee shall, by , provide the Area Land Manager with, and subsequently accomplish as agreed to, the reclamation efforts specified in a reclamation plan detailing by scale, drawing and written description of the location of any stockpiles, the method and location of any stockpiles, the method and location of disposal of any topsoil, vegetation and other debris which has resulted from the operation, the proposed shape of the lease site after all reclamation activities required herein are completed, including the slope on all sides or banks of the lease site, and a list of all equipment to be left in the lease site. The schedule and method of revegetation will be determined by the Area Land Manager at the time the reclamation plan is submitted. The lease site restoration and reclamation activities and costs shall be considered incidental to lease site development and will not be measured for payment. The Land Commissioner may waive the requirements of a reclamation plan for all or parts of the lease area. 9. Within thirty (30) days after the expiration of this lease or after the extraction operation has been terminated, the Lessee shall slope all sides or banks of the lease site from any common property line to the floor of the lease site, to minimize the hazard to the public and to minimize erosion. In no case shall there be a slope steeper than 2.5:1. The top of all banks shall be rounded with a radius approximately 10 feet. The bottom of the lease site shall be shaped so as not to pond water unless otherwise authorized by the Area Land Manager. General shaping shall be done to effect the appearance of a closed pit, except where agreed upon. 10. It is specifically understood that this lease may not in any way be assigned by the Lessee to any other party. Lessee may not grant permission to any third parties to enter upon the property described in this lease without first obtaining written approval from the Land Commissioner. 11. Lessor retains the right to suspend and/or terminate this lease immediately upon breach of any of the terms or conditions herein set forth. 12. Lessee agrees to indemnify, save and hold harmless the County, its agents and employees, of and from any and all claims, demands, actions or causes of action of

Property Leases and Easements Lease for Removal of Earthen Material 16-4

whatsoever nature or character arising out of or by reason of the execution or performance of the terms and conditions provided for in this lease. Lessee further agrees to defend at its own sole cost and expense any action or proceeding commenced for the purpose of asserting any claims of whatsoever character or nature against the County, its employees, or agent. Lessee shall provide Lessor with immediate notice of any personal or property damage from whatever cause occurring to third parties at or near the lease site. 13. All communications, notices, or demands from the parties shall be directed to the Land Commissioner at, on behalf of the Lessor and at on behalf the Lessee. 14. Additional terms: LESSEE: LESSOR: COUNTY By: By: Land Commissioner

Property Leases and Easements Lease for Removal of Earthen Material 16-5

Easement No.

____________ County Right-of-Way Easement (Roads & Trails)

THIS INDENTURE, made this ____ day of ___________________________, between

the State of Minnesota, by and through the Auditor of the County of _____________________,

hereinafter called the Grantor, and ____________________________________ hereinafter

called Grantee.

WITNESSETH, whereas the Grantee has applied to Grantor for the granting of an

easement for __________________________ purposes over certain tax-forfeited lands owned by

the State Minnesota, situated in the County of _________________________, and administered

by the County of _________________________.

NOW, THEREFORE, Grantor, pursuant to the Authority of Minn. Stat. 282.017, and

Resolution No. ___________ of the _________________________ County Board of

Commissioners, does hereby grant and convey unto the Grantee, from and after the _____ day of

_____________________________, and through the _____ day of _______________________,

an easement for the purposes above described, over, under, and across the following described

lands:

(_____________________________________________________________________________

______________________________________________________________________________

__________) of the County of , State of Minnesota. The right-of-way granted by this

instrument is _____________ and confined to the area as shown on the drawing attached hereto

as Exhibit A, which is a part hereof.

The above instrument is subject to the following grants, agreements, covenants,

conditions and restrictions.

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17-1

1. Outstanding rights and interests, if any. 2. Grantee shall construct and maintain said right-of-way development at its own

expense. 3. The right-of-way hereby conveyed shall be open to the general public. 4. Grantee shall be totally and fully responsible for all costs of survey, construction,

maintenance and rebuilding of said right-of-way and shall keep the same in safe condition at all times and in conformance with all applicable laws and regulations.

5. Grantee shall during construction, maintenance and operation, protect and

preserve soil and vegetation cover and scenic and aesthetic values on the right-of-way and outside of construction limits.

6. Grantee shall provide for the prevention and control of said erosion within the

right-of-way, as reasonably required by the Grantor, that might be affected by construction, operation, or maintenance of the proposed right-of-way development and shall plant and maintain vegetation of suitable species on all earth cut or fill slopes feasible for revegetation or other areas where ground cover is destroyed, provided that it be mutually determined by the Grantor and an authorized representative of the Grantee prior to completion of construction, that such steps are necessary and the Grantee shall maintain all terracing, water bars, lead-off ditches, culverts where necessary, and other preventative works that may be required to accomplish such agreed objectives.

7. Grantee may maintain the right-of-way clearing by means of chemicals upon

approval in writing by the Grantor. Application for such approval must be in writing and must specify the time, method, chemicals, and the exact portion of the right-of-way to be chemically treated.

8. Grantee may trim, cut, remove and dispose of such trees and obstructions from

Grantor's land adjacent to the easement area as reasonably necessary to carry out its maintenance obligations hereunder, together with the right to cut and dispose of all dead, weak, leaning or dangerous trees that will reasonably interfere with usage of the right-of-way area.

9. Grantee shall establish no borrow, sand, or gravel pits, stone quarry, or permanent

storage areas, sites for road operations and maintenance facilities, camps, supply depots or disposal areas within right-of-way, except with prior approval of the Grantor.

10. Grantees, their agents and contractors shall have the right of reasonable access

over Grantor's property to the right-of-way area as necessary to carry out the uses of the property as specified herein.

Property Leases and Easements County Right-of-Way Easement (Roads & Trails)

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11. Grantee shall have the right to close said right-of-way during any emergency,

with the approval of the Grantor. 12. Each party agrees that it shall be responsible for its own acts and omissions and

the results thereof to the extent authorized by law and shall not be responsible for the acts and omissions of the other party and the results thereof. The Grantor's liability shall be governed by the provisions of the Municipal Tort Claim Act, Minn. Stat. Ch. 466, and other applicable law.

13. Grantors and his assigns and agents shall at all times have the right to enter upon

said right-of-way for any purpose necessary to the performance of lawful powers and duties.

14. Grantors hereby reserves for its own use, all the peat, iron, coal, gold, and other

valuable minerals, and all water power, and all oils and gases, upon all lands covered by this easement, and the right to enter upon same for the purposes of exploration and mining same.

15. This easement is subject to cancellation for mining purposes, upon three months’

written notice from the _________________________ County Auditor, as required by Minn. Stat. 282.01, subd. 8.

16. The right, privilege and license hereby granted shall extend to and bind the

successors and assigns of the parties hereto and shall run with the land. 17. The easement and right-of-way herein conveyed may be terminated by the

Grantee upon 30 days’ written notice, by mutual agreement of the parties hereto, or by the Grantor upon thirty (30) days’ written notice to the Grantee if Grantee fails to comply with applicable laws or the terms of this easement; otherwise to remain in effect as long as used for the purposes granted; provided, however, if the easement and right-of-way or any part thereof shall be abandoned or shall cease to be used by the Grantee for a period of one year, the rights and privileges hereby granted shall cease and terminate and the land traversed by the abandoned or unused segment shall be freed from this easement and right-of-way. In the event of such agreement to terminate or abandon , the Grantees, by authorized representative, shall furnish to the Grantor, a statement in recordable form evidencing termination.

18. All communications, notices, or demands from the parties shall be directed to the

______________________________________, on behalf of the Grantor and __________________________________ on behalf of the Grantee.

19. Additional terms may be attached hereto as Exhibit B.

Property Leases and Easements County Right-of-Way Easement (Roads & Trails)

17-3

IN TESTIMONY WHEREOF, Grantor has caused these presents to be executed by the

Auditor, County of , the day and year first above written.

_______________________ COUNTY, STATE OF MINNESOTA _________________________________ COUNTY LAND COMMISSIONER’S REPRESENTATIVE and DEPUTY AUDITOR STATE OF MINNESOTA ) ) ss. COUNTY OF ____________ ) On this _____ day of _________________________________, before me, a Notary Public within and for said County, personally appeared _________________________________, to me personally known, who, being by me duly sworn did say that he is the Auditor (Deputy) the County of _________________________, State of Minnesota, and that the seal affixed to the foregoing instrument is the corporate seal of the County of ___________________, and that said instrument was signed and sealed on behalf of the State of Minnesota by its authority, and s/he acknowledged said instrument to be the free act and deed of the State of Minnesota.

______________________________

Notary Public

Property Leases and Easements County Right-of-Way Easement (Roads & Trails)

17-4

Easement No.

County Right-of-Way Easement (Utilities)

THIS INDENTURE, made this ____ day of ___________________________, between

the State of Minnesota, by and through the Auditor of the County of ____________, hereinafter

called the Grantor, and ____________________________________ hereinafter called Grantee.

WITNESSETH, whereas the Grantee has applied to Grantor for the granting of an

easement for __________________________ purposes over certain tax-forfeited lands owned by

the State Minnesota, situated in the County of _____________, and administered by the County

of _______________.

NOW, THEREFORE, Grantor, pursuant to the Authority of Minn. Stat. 282.04, subd.

4, and Resolution No. ___________ of the_______________ County Board of Commissioners,

and in consideration of the sum of _______________________________ ($_______________),

to it in hand paid by said Grantee, the receipt whereof is hereby acknowledged, which amount

constitutes full payment for the rights and interests herein conveyed including payment for any

improvements, timber and forest growth that will be destroyed on the easement area, does hereby

grant and convey unto the Grantee, from and after the _____ day of ______________________,

and through the _____ day of ___________________, a permanent easement for the purposes

above described, over, under, and across the following described lands:

(_____________________________________________________________________________

______________________________________________________________________________

__________) of the County of _________________, State of Minnesota. The right-of-way

granted by this instrument is _____________ and confined to the area described on Exhibits A

and B.

The above instrument is subject to the following grants, agreements, covenants,

conditions and restrictions.

1. Outstanding rights and interests, if any.

2. Grantee shall construct and maintain said right-of-way development at its own

expense.

3. The right-of-way hereby conveyed all be open to the general public.

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4. Grantee shall be totally and fully responsible for all costs of survey, construction, maintenance and rebuilding of said right-of-way and shall keep the same in safe condition at all times and in conformance with all applicable laws and regulations.

5. Grantee shall during construction, maintenance and operation, protect and preserve

soil and vegetation cover and scenic and aesthetic values on the right-of-way and outside of construction limits.

6. Grantee shall provide for the prevention and control of said erosion within the right-

of-way, as reasonably required by the Grantor, that might be affected by construction, operation, or maintenance of the proposed right-of-way development and shall plant and maintain vegetation of suitable species on all earth cut or fill slopes feasible for revegetation or other areas where ground cover is destroyed, provided that it be mutually determined by the Grantor and an authorized representative of the Grantee prior to completion of construction, that such steps are necessary and the Grantee shall maintain all terracing, water bars, lead-off ditches, culverts where necessary, and other preventative works that may be required to accomplish such agreed objectives.

7. Grantee may maintain the right-of-way clearing by means of chemicals upon

approval in writing by the Grantor. Application for such approval must be in writing and must specify the time, method, chemicals, and the exact portion of the right-of-way to be chemically treated.

8. Grantee may trim, cut, remove and dispose of such trees and obstructions from

Grantor's land adjacent to the easement area as reasonably necessary to carry out its maintenance obligations hereunder, together with the right to cut and dispose of all dead, weak, leaning or dangerous trees that will reasonably interfere with usage of the right-of-way area.

9. Grantee shall establish no borrow, sand, or gravel pits, stone quarry, or permanent

storage areas, sites for road operations and maintenance facilities, camps, supply depots or disposal areas within right-of-way, except with prior approval of the Grantor.

10. Grantees, their agents and contractors shall have the right of reasonable access over

Grantor's property to the right-of-way area as necessary to carry out the uses of the property as specified herein.

11. Grantee shall have the right to close said right-of-way during any emergency, with the

approval of the Grantor.

12. Grantee agrees to indemnify, save, and hold harmless the County of , its agents and employees, of and from any and all claims, demands, actions, or causes of action of whatsoever nature or character arising out of or by reason of the execution or performance of the terms provided for herein, and further agrees to defend at its

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own sole cost and expense, any action or proceeding commenced for the purpose of asserting any claims of whatsoever character arising hereunder.

13. Grantors and his assign and agents will at all times have the right to enter upon said

right-of-way for any purpose necessary to the performance of lawful powers and duties.

14. Grantors hereby reserves for its own use, all the peat, iron, coal, gold, and other

valuable minerals, and all water power, and all oils and gases, upon all lands covered by this easement, and the right to enter upon same for the purposes of exploration and mining same.

15. This easement is subject to cancellation for mining purposes, upon three months’

written notice from the County Auditor, as required by Minn. Stat. 282.01, subd. 8.

16. The right, privilege and license hereby granted shall extend to and bind the successors

and assigns of the parties hereto and shall run with the land.

17. The easement and right-of-way herein conveyed may be terminated by the Grantee upon 30 days’ written notice, by mutual agreement of the parties hereto, or by the Grantor upon thirty (30) days’ written notice to the Grantee if Grantee fails to comply with applicable laws or the terms of this easement; otherwise to remain in effect as long as used for the purposes granted; provided, however, if the easement and right-of-way or any part thereof shall be abandoned or shall cease to be used by the Grantee for a period of one year, the rights and privileges hereby granted shall cease and terminate and the land traversed by the abandoned or unused segment shall be freed from this easement and right-of-way. In the event of such agreement to terminate or abandon , the Grantees, by authorized representative, shall furnish to the Grantor, a statement in recordable form evidencing termination.

18. All communications, notices, or demands from the parties shall be directed to the

Land Commissioner at , on behalf of the Grantor and on behalf of the Grantee.

19. Additional terms may be attached hereto as Exhibit C.

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IN TESTIMONY WHEREOF, Grantor has caused these presents to be executed by the

Auditor, County of _______________, the day and year first above written.

COUNTY, STATE OF MINNESOTA REPRESENTATIVE and DEPUTY AUDITOR STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) On this day of , before me, a Notary Public within and for said County, personally appeared , to me personally known, who, being by me duly sworn did say that he is the Auditor (Deputy) the County of , State of Minnesota, and that the seal affixed to the foregoing instrument is the corporate seal of the County of , and that said instrument was signed and sealed on behalf of the State of Minnesota by its authority, and s/he acknowledged said instrument to be the free act and deed of the State of Minnesota. Notary Public

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V. Construction Contracts

Agreement for Engineering Services

This Agreement made this day of , 20 , by and between the

COUNTY OF , a body corporate and politic, existing under the laws of

the State of Minnesota, hereinafter referred to as "County" and (Contractor) ,

(address) , hereinafter referred to as "Engineer" for the project generally

described as the (engineering study description) .

WITNESSETH:

WHEREAS, the County requires the services of an engineer for the planning and study of

; and

WHEREAS, funds in the amount of (Amount) have been appropriated for said

engineering services related to the project; and

WHEREAS, the Engineer represents that he is qualified to provide engineering services

as required by this Agreement and is duly registered to provide said services pursuant to

Minnesota law.

NOW, THEREFORE, in consideration of the mutual covenants hereinafter contained,

and other good and valuable consideration, the parties do agree as follows:

1. That Engineer shall review the project description with (County representative) ,

and (Contractor) , who shall act as the authorized agents for the purpose of administration

of this Agreement on behalf of the County of .

2. That the project hereinafter referred to shall consist of engineering services

related to three separate studies described as follows:

Study No. 1: Analysis of .

Study No. 2: Analysis of .

Study No. 3: Analysis of .

3. That after completion of the engineering studies and investigation, Engineer shall

submit reports, with complete sketches of existing conditions and possible renovations, and will

address all aspects of the project with input from architects and civil, mechanical and electrical

engineers.

4. That Engineer shall complete the investigation and submit appropriate reports

within ninety (90) days of the date of execution of this Agreement. This schedule shall not,

except for reasonable cause, be exceeded by the Engineer and then only with authorization of the

County.

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5. That the County shall provide full information regarding requirements for the

project including setting forth the County's objectives, constraints and criteria, special equipment

and systems, and site requirements.

(County purchasing agent) , or her designee, shall examine documents submitted

by the Engineer and shall render decisions as to their acceptability and form.

6. That upon completion and acceptance of the County of the individual study

reports, Engineer shall be entitled to payment of a portion of his fee in accordance with the

following schedule:

Study No. 1: (amount)

Study No. 2: (amount)

Study No. 3: (amount)

Engineer shall further be entitled to (amount) upon submission and acceptance

of a final report with documentation.

In addition to the fee, as hereinbefore established, Engineer shall be reimbursed at cost

for printing and reproduction of documents. Engineer shall further be reimbursed at ($ .cents)

per mile for travel.

7. That it is specifically understood and agreed that should the County proceed with

construction and retain Engineer to do construction documents for a project, then

Engineer shall allow a (amount) credit to the County against fees charged for the

preparation of construction documents.

8. This Agreement may be terminated by the County upon seven (7) days' written

notice should the Engineer fail substantially to perform in accordance with the terms of this

Agreement. In the event of termination not the fault of the Engineer, he shall be compensated for

all services performed to termination date. In the event of termination by fault of the Engineer,

the County shall be reimbursed for all monies expended to the Engineer and for all other

expenses incurred because of the termination.

9. Termination notice to the County shall be directed to (County representative) ,

(address and telephone number) . Termination notice to Engineer shall be directed to

(Contractor), (address and telephone) .

10. Engineer shall make available for review and copying, at reasonable times upon

request by County, any documents, records, memoranda or other such items relating to the

County's project in Engineer's possession. Engineer shall specifically keep concise records

verifying any work for which additional compensation is requested or any other extraordinary or

miscellaneous expenses arising out of his performance of this Agreement. He shall further keep

detailed records pertaining to any major controversies, disputes or problems which affect or

could affect the quality or acceptance of his work.

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11. Drawings and specifications, as instruments of service, are, and shall remain, the

property of the County whether the project for which they are made is executed or not. The

County shall be permitted to retain copies, including reproducible copies of drawings and

specifications for information and reference in connection with the County's use and occupancy

of the project and for use in any future remodeling or new addition construction.

12. Engineer agrees that he will obtain and have in effect at all times during this

Agreement professional liability insurance in the amount of (amount) Said insurance costs

shall be his own cost and expense and shall not be included as a cost of the County's project or

reimbursed in any way by the County.

13. This Agreement shall be governed by applicable laws of the County of ,

State of Minnesota.

14. The County and the Engineer respectfully bind themselves, their partners,

successors and assigns and all legal representatives to the other party to this Agreement and to

partners, successors, assigns and legal representatives of such party with respect to all covenants

of this Agreement. Neither the County nor the Engineer shall assign, sublet or transfer any

interest in this Agreement without written consent of the other.

CONTRACTOR COUNTY OF By: By: (Purchasing Agent) By: By:

APPROVED AS TO FORM AND EXECUTION:

Assistant County Attorney

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Project Contract

THIS AGREEMENT made as of the day of , 20 , BETWEEN the Owner: County of , State of Minnesota County Courthouse City, Minnesota 5

and the Contractor: (name and address)

The Project: (title/location/short description) Architect/Engineer: (name and address)

The Owner and the Contractor agree as set forth below:

ARTICLE 1

THE CONTRACT DOCUMENTS

The Contract Documents, in order of priority, consist of this Agreement, the Instructions to Bidders, the Bid Form, the General Conditions of the Contract, General Requirements, Special Conditions, and the Drawings, the Specifications, all Addenda issued prior to and all Modifications issued after execution of this Agreement, the bonds and insurance, and the contractor's final proposal. These form the Contract, and all are as fully a part of the Contract as if attached to this Agreement or repeated herein. Contractor understands that all references to "Bidder" in documents attached now refer to Contractor. [Note: Make sure contractor's bid and requests for proposals or bid reports are not significantly different in content. In the event of significant differences, Project Contract should reflect appropriate agreed upon terms and identify document setting out specific terms.]

ARTICLE 2

THE WORK The Contractor shall perform all the Work required by the Contract Documents for the (project description) , all in conformance with Contract Documents as listed in Article 1.

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ARTICLE 3

TIME OF COMMENCEMENT AND SUBSTANTIAL COMPLETION The Work to be performed under this Contract shall be commenced immediately upon receipt of signed Contract [or at such other time as County states]. Upon signature of Contract, Contractor shall provide performance bonds, labor and materials bonds, and certificates of insurance as required by the Contract Documents. Substantial Completion shall be achieved not later than working/calendar days after notification to proceed [or by date.]

ARTICLE 4

CONTRACT SUM The Owner shall pay the Contractor in current funds for the performance of the Work, subject to additions and deductions by Change Order as provided in the Contract Documents, the Contract Sum of .

ARTICLE 5

PROGRESS PAYMENTS Based upon Applications for Payment submitted to the Architect [Engineer/County] by the Contractor and certificates for Payment issued by the Architect [County], the County shall make progress payments on account of the Contract Sum to the Contractor as provided in the Contract Documents for the period ending the last day of the month as follows: Not later than thirty (30) days following the end of the period required to review and approve the Application for Payment ninety-five percent (95%) of the portion of the Contract Sum properly allocable to labor, materials and equipment incorporated in the Work for the period covered by the Application for Payment, less the aggregate of previous payments made by the County; and upon Substantial Completion of the entire Work, a sum sufficient to increase the total payments to ninety-five percent (95%) of the Contract Sum, less such amounts as the Architect [County] shall determine for all incomplete Work and unsettled claims as provided in the Contract Documents. Progress payments shall not be made for materials or equipment not incorporated in the Work.

ARTICLE 6

FINAL PAYMENT Final Payment, constituting the entire unpaid balance of the Contract Sum, shall be paid by the County to the Contractor when the Work has been completed, the Contract fully performed, and a final Certificate for Payment has been issued by the Architect [Engineer/County], accompanied by Contractor's Consent of Surety, and when Contractor has complied with all other requirements of the Contract Documents for final payment.

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ARTICLE 7

MISCELLANEOUS PROVISIONS

7.1 Terms used in this Agreement which are defined in the Conditions of the Contract shall have the meanings designated in those Conditions. 7.2 Any alternations, additions, deletions or waivers of the provisions of this Agreement shall be valid only when reduced to writing and duly signed by the parties. 7.3 This Contract shall not be assigned by the Contractor without the written consent of the County of . 7.4 All claims or litigation under this Contract shall be filed and heard in the court of County, Minnesota, City of . COUNTY OF CONTRACTOR BY: BY:

Chairperson TITLE: BY: Auditor/Clerk of the County Board BY: TITLE: Approved as to Form: Assistant County Attorney

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County of , Minnesota Project Contract

A.1 DATES AND PARTIES A.1 THIS CONTRACT, made this day of , 20 , by and

between the County of , herein called the “County,” and , a corporation organized and existing under the laws of the State of , or a partnership existing of , or an individual trading as , located at , herein called the “Contractor.”

B.1 DESCRIPTION OF PROJECT B.1.1 WITNESSETH: That for an in consideration of the mutual agreements

hereinafter set forth, the County and the Contractor hereby agree as follows: Contractor will commence and complete the project described as follows and at the agreed price submitted in the proposal/bid accepted by the County as of ; and

[Add Detail] C.1 AMOUNT/SPECIAL CONDITIONS C.1.1 For the sum of ($ ) under the

terms as stated below; and at his (its or their) own proper cost and expense to furnish all the materials, supplies, machinery, equipment, tools, superintendence, labor, insurance and other accessories and services necessary to complete said project in accordance with the conditions and prices stated in the Proposal, the General Conditions, Supplemental General Conditions and Special Conditions of the Contract, the plans, which include all maps, plats, blue prints, and other drawings and printed or written explanatory matter thereof, the specifications and contract documents therefor as prepared by , herein entitled the Architect/Engineer, and as enumerated in the Supplemental General Conditions, all of which are made a part hereof marked “Exhibit B” and collectively evidence and constitute the Contract.

D.1 BOND D.1.1 The Contractor agrees to furnish a Performance Bond in the amount of $ and

Labor & Material Payment Bond in the amount of $ in favor of county of to protect the County against any breach of this Contract.

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E.1 LIQUIDATED DAMAGES E.1.1 The Contractor hereby agrees to commence work under this Contract on or

before a date to be specified in a written “Notice to Proceed” of the Owner and to fully complete the project within Consecutive calendar days thereafter. The Contractor further agrees to pay, as liquidated damages, the sum of $ for each consecutive calendar day thereafter as hereinafter provided in the General Conditions.

F.1 LAWS AND REGULATIONS F.1.1 All applicable Federal and State laws, municipal ordinances, and the rules and

regulations of all authorities having jurisdiction of the project shall apply to the Contract throughout and will be deemed to be included in the Contract as though herein written out in full.

G.1 PERMITS, FEES, LICENSES G.1.1 Contractor shall obtain and pay for all permits, fees and licenses necessary and

ordinary for the work, shall comply with all lawful requirements applicable to the work, and shall give and maintain any and all notices required by applicable law pertaining to the work.

H.1 TAXES H.1.1 Contractor shall pay any applicable state sales taxes and shall also be

responsible for the payment of any and all payroll taxes and contributions for unemployment compensation insurance and Social Security which are measured by the wages, salaries or other remunerations paid to employees of the Contractor and shall submit evidence of same to Owner when requested.

I.1 INSURANCE I.1.1 The following insurance must be maintained for the duration of this Contract.

A Certificate of Insurance for each policy must be on file with the County Purchasing Department within 10 days of execution of this contract and prior to commencement of any work under this contract. Each certificate must include a 10-day notice of cancellation, nonrenewal, or material change to all named and additional insureds.

I.1.2 The County reserves the right to rescind any contract not in compliance with

these requirements and retains all rights thereafter to pursue any legal remedies against Contractor. All insurance policies shall be open to inspection by the County, and copies of policies shall be submitted to the County upon written request. All subcontractors shall provide evidence of similar coverage.

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I.1.3 General Liability Insurance

I.1.3.1 $500,000 for claims for wrongful death and each person for other claims $1,500,000 each occurrence

No less than $2,000,000 aggregate

I.1.3.2 Policy shall include at least premises, operations, completed operations, independent contractors and subcontractors, and contractual liability.

I.1.3.3 County must be named as additional insured.

I.1.4 Business Automobile Liability Insurance

I.1.4.1 $500,000 for claims for wrongful death and each person for other

claims $1,500,000 each occurrence

No less than $2,000,000 aggregate

I.1.4.2 Must cover owned, nonowned and hired vehicles.

I.1.5 Workers’ Compensation Per Statutory Requirements I.1.5.1 County reserves the right to rescind any contract

not in compliance with these requirements and retains all rights thereafter to pursue any legal remedies against bidder.

I.1.6 Indemnification Clause

I.1.6.1. Except as may be caused by the sole negligence of the County or its employees, Contractor shall indemnify and save harmless County, its employees, and its agents from all claims, actions, demands, and judgments of any kind arising in whole or in part from any act or omission of Contractor, its subcontractors, and their agents, servants, or employees, incidental to the performance of the contract and from all expenses in connection with such claims, actions, demands and judgments, and shall assume, without expense to the County, the defense of any such claims, actions, demands and judgments, irrespective of whether it is alleged, claimed, or proved in connection with such act or omission that negligence of the County or its representatives caused or contributed thereto.

I.1.6.2 Contractor agrees, that in order to protect itself and the County

under the indemnity provisions set forth above, it will at all times

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during the term of this Agreement keep in force policies of insurances indicated in paragraph entitled, “INSURANCE.”

I.1.6.3 This provision is not intended to create any cause of action in favor

of any third party against the Contractor or the County or to enlarge in any way the Contractor’s liability, but it is intended solely to provide for indemnification of the County from liability for damages or injuries to third persons or property arising from the Contractor’s or the Contractor’s agents’ performance hereunder.

J.1 PAYMENT

J.1.1 It is further mutually agreed that in case the Contractor shall proceed properly to perform and complete this Contract, the Director of Purchasing may, in his discretion, from time to time as progress is made, grant to the Contractor, an estimate of the amount already earned which shall entitle the holder thereof to receive the amount due thereon, when the condition, if any, annexed to such estimate shall have been met. The granting of any such estimate shall not be construed as an acceptance of the project or any portion thereof. Final payment shall be made upon completion and acceptance of the project by the County.

J.1.2 State of Minnesota, Department of Revenue Form IC-134 must be completed

and forwarded to Director of Purchasing prior to final payments. J.1.3 Lien Waivers will be required from all suppliers and subcontractors before final

payment is made. For periodic monthly payments, lien waivers must be on hand for all previous payments.

K.1 RECORDS AUDITING AND RETENTION

K.1.1 Contractor’s bonds, records, documents, papers, accounting procedures and practices, and other evidence relevant to this Contract are subject to the examination, duplication, transcription and audit by the County and either the legislative or State Auditor, pursuant to Minn. Stat. § 16C.05, subd. 5. Such evidences are also subject to review by the Comptroller General of the United States, or a duly authorized representative, if federal funds are used for any work under this Contract. Contractor agrees to maintain such evidences for a period of six (6) years from the date services or payment were last provided or made or longer if any audit in progress required a longer retention period.

L.1 DISCRIMINATION IN EMPLOYMENT L.1.1 Contractor agrees to comply with all federal, state and local laws, ordinances,

rules, regulations and executive orders pertaining to unlawful discrimination on account of race, color, creed, religion, national origin, sex, marital status, status

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with regard to public assistance, disability or age. Contractor further agrees to comply with all federal, state and local laws or ordinances and all applicable rules, regulations and standards established by any governmental agency having jurisdiction over Contractor’s performance of the provision of the Contract.

M.1 UNAVOIDABLE DELAY

M.1.1. Contractor shall not be held responsible for damages caused by delay or failure to perform hereunder, when such delay or failure is due to Fires, Strikes, Acts of God, Legal acts of the public authorities, or delays or defaults caused by public carriers, or acts or demands of the Government in time of war or national emergency.

N.1 GUARANTEE

N.1.1 Contractor further agrees to guarantee all materials and parts supplied under this Contract against inferiority as to specifications, such guarantee to be unconditional.

O.1 WAIVER

O.1.1 Failure or neglect of the County to require compliance with any term or condition of this Contract or the specifications shall not be deemed a waiver of such term or condition.

P.1 INDEPENDENT CONTRACTOR

P.1.1 Contractor agrees that it is performing this Contractor as an independent contractor for the County. Contractor agrees that it is solely responsible for supervision and direction of the work performed under this Contract by its employees, agents, and subcontractors. Contractor acknowledges that it serves as sole employer with respect to any of the employees employed by it for performance of such work, and is responsible for the methods and manner of such work performed under this Contract.

Q.1 RIGHT TO TERMINATE

Q.1.1 If at any time the County determines that the performance of the work under this Contract is being unnecessarily delayed, that the Contractor is violating any of the conditions of this Contract, or that it is executing the same in bad faith or otherwise not in accordance with the terms of said Contract; or if the work is not substantially completed within the time named for its completion or with in the time to which such completion date may be extended; then the County may serve written notice upon the Contractor, and its surety if a performance bond has been executed of the County’s intention to terminate this Contract. Unless

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within one week after the serving of such notice a satisfactory arrangement is made for continuance, this Contract shall terminate.

R.1 SUBCONTRACTOR AND ASSIGNMENT

R.1.1 Contractor shall not enter into any subcontract for performance of any services contemplated under this Contract nor assign any interest in the Contract without the prior written approval of the County and subject to such conditions and provisions as the County may deem necessary. The Contractor shall be responsible for the performance of all subcontractors.

S.1 PREVAILING WAGE

S.1.1 Minnesota Statute 177.41-.44(applicable only if state funds) and County Resolution No. ____, requires payment of wages on all public works projects at the prevailing rate for the area where the construction work is being performed. Documentation of wages may be required from any contractor and payroll records must be maintained.

T.1 WAIVER

T.1.1 Any waiver by either party of any provision of this Contract shall not imply a subsequent waiver of that or any other provision.

U.1 MODIFICATIONS/AMENDMENT

U.1.1 Any alterations, variations, modifications, amendments or waivers of the provisions of this Contract shall only be valid when they have been reduced to writing, and signed by authorized representatives of the County and Contractor.

V.1 SEVERABILITY

V.1.1 The provisions of this Contract shall be deemed severable. If any part of this Contract is rendered void, invalid, or unenforceable, such rendering shall not affect the validity and enforceability of the remainder of this Contract unless the part of parts which are void, invalid or otherwise unenforceable shall substantially impair the value of the entire Contract with respect to either party.

W.1 NOTICES

W.1.1 Notices, communications, all official notices or questions arising under this Contract shall be direct to:

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X.1 EXECUTION

X.1.1 IN WITNESS WHEREOF the County of has caused this Contract to be signed by its duly authorized officers and the Contractor has hereunto set its hand.

Dated this day of , . (Vendor Name) COUNTY OF , MINNESOTA PURCHASING DEPARTMENT By: By:

Its Director of Purchasing Date: Date: APPROVED AS TO FORM & EXECUTION By: Assistant County Attorney Date:

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VI. Labor Contracts

Employment Separation Agreement

This Employment Separation Agreement is made and entered into on this day of ,

20 , between (hereinafter “Employee”) and County

(hereinafter “County”).

WHEREAS, Employee has been employed by the County since , 20 , in

the position of ; and

WHEREAS, Employee and the County desire to set forth the terms and conditions under

which the Employee and the County will terminate their employment relationship;

NOW, THEREFORE, in consideration of the mutual promises made below, the parties

agree as follows:

1. Resignation. Employee, by his signature below, hereby acknowledges and

confirms his resignation as an employee of County effective ,

20 . Employee will provide the County with separate written confirmation of his resignation,

which will be placed in Employee's personnel file. The County's records will indicate that

Employee voluntarily resigned his employment, except that for purposes of Unemployment

Compensation, the County will not contest Employee's claim for benefits.

2. Payments. Effective (time) , (date) , Employee shall be

on paid leave status, which shall continue through and include , 20 , the

effective date of resignation. During the leave period, the County shall continue paying

Employee his regular salary at the rate $ .

Employee shall continue accruing regular vacation and sick leave benefits, through the

date of resignation. With Employee's final paycheck, County shall pay the Employee for all

vacation and one-half of all sick leave accrued through the effective date of resignation, pursuant

to County policy.

3. Insurance. The County shall continue to pay the premiums currently in effect

(minus Employee's contribution) for Employee's health insurance, disability insurance and basic

life insurance, through and including (date) . Thereafter, Employee, as provided by

County procedures, policy language, or law, may continue to participate in the health, disability

and basic life insurance provided through the County, upon timely payment of premiums during

the period provided by law.

4. Full Compensation. The payments that will be made to the Employee or for his

benefit pursuant to this Separation Agreement shall be full and final compensation for any and

all claims arising out of his employment with the County or his termination of employment,

including but not limited to claims for attorneys' fees and costs, and any and all other state,

federal or common law claims for legal or equitable relief.

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5. Records, Documents and Property. As of the date of this Agreement, Employee

shall immediately return to the County all County records, correspondence, data in any form,

documents and files whether written or on computer data base. Employee shall also immediately

return any County personal property, including but not limited to, keys, security card and

computer discs, which may be in his possession, or under his control. Employee shall further

remove his own personal property from County facilities on or before his last date of work.

6. Rescission. Employee may rescind (or cancel) this Separation Agreement within

fifteen (15) calendar days of signing it to be effective the rescission must be in writing and

delivered either by hand or mail to the County, addressed to ,

Administrator, County Government Center. If mailed, the rescission must be:

a. postmarked within the 15-day period;

b. properly addressed as stated above; and

c. sent by certified mail, return receipt requested.

7. General Release. In consideration of the payments and other undertakings stated

herein, the Employee shall sign a separate Release attached hereto as Ex. 1, at the time of signing

of this Separation Agreement.

8. Confidentiality. The terms of this Separation Agreement will be treated as

confidential by the Employee and will not be disclosed by him to the media or any third party

except his attorney, accountant, tax advisor or spouse, or as required by law or agreed to in

writing by the County. [The terms of this Separation Agreement and the Release will be treated

as private data by the County, and will not be disclosed except as required by law or authorized

by the Employee in writing.]1

9. Non-Admission. Nothing in this Separation Agreement is intended to be, nor will

be deemed to be, an admission of liability or violation of any federal, state or local ordinance,

principle of common law or of any wrongdoing by either party.

10. Merger. This Separation Agreement, the Release and the employee benefit plans

in which Employee is a participant supersede all prior oral and written agreements and

communications between the parties. Employee agrees that any and all claims which he has or

might have had against the County are fully released and discharged by this Separation

Agreement and the Release, and that the only claims which he may hereafter assert against the

County will be derived from an alleged breach of the terms of this Separation Agreement or of

an employee benefit plan in which Employee is a participant, or for causes of action arising after

the date of signature hereon.

1Before using sentence in []’s, read Minn. Stat. § 13.42.

Labor Contracts Employment Separation Agreement 22-2

11. Entire Agreement. This Separation Agreement, the Release, and the employee

benefit plans in which Employee is a participant constitute the entire agreement between the

parties with respect to the termination of Employee's employment relationship with the County,

and the parties agree that there were no inducements or representations leading to the execution

of this Separation Agreement or the Release, except as herein contained.

12. Invalidity. In case any one or more of the provisions of this Separation Agreement

should be invalid, illegal, or unenforceable in any respect, the validity, legality, and

enforceability of the remaining provisions contained in this Separation Agreement will not in any

way be affected or impaired thereby.

13. Voluntary and Knowing Action. Employee acknowledges that he has had the

opportunity to consult with his own attorney; that he has read and understands the terms of this

Separation Agreement; and that he is voluntarily entering into this Separation Agreement to

resolve any disputes against the County.

14. Governing Law. This Separation Agreement will be construed and interpreted in

accordance with the laws of the State of Minnesota.

IN WITNESS WHEREOF, the parties have caused this Separation Agreement to be signed on the day and year first above written.

COUNTY EMPLOYEE

BY: Chairperson of County Board BY: * Department Head/County Administrator *Consider including signature of

Employee's attorney or Employee's union representatives if also involved in settlement negotiation.

Labor Contracts Employment Separation Agreement 22-3

Release Definitions. I intend all words used in this Release to have their plain meanings in ordinary English. Specific terms I use in this Release have the following meanings:

I, me, and my include both me and anyone who has or obtains any legal rights or claims through me.

My Claims means all of the rights I have now to any relief of any kind from County, whether or not I now know about those rights, arising out of my employment with _____County, and my employment termination, including, but not limited to, claims for breach of contract; promissory estoppel; breach of fiduciary duty; violation of the Minnesota Human Rights Act or other federal, state, or local civil rights laws; violation of my rights based on veteran's status; violation of public policy; retaliation because of conduct as a "whistleblower"; fraud or misrepresentation; defamation; intentional or negligent infliction of emotional distress; negligence; wrongful termination of employment; and any other claims for unlawful employment practices.

Agreement to Release My Claims. I am receiving payment and will receive payment from County. In exchange, I agree to give up all My Claims against County. I will not bring any lawsuits, file any charges, complaints, or notices, or make any other demands against County based on My Claims. The money I am receiving is a full and fair payment for the release of all My Claims. County does not owe me anything in addition to what I will be receiving. I specifically waive any right to a hearing which I have or may have under Minn. Stat. § 197.46 because of my status as a veteran. I specifically waive any rights I have or may have to grieve or appeal any disciplinary action and/or dismissal proceedings that have or may have been implemented by the County under the County Personnel Policy and Procedures Manual in effect at the time of my resignation. I understand that I may rescind (that is, cancel) this Release within fifteen (15) calendar days of signing it. To be effective, my rescission must be in writing and delivered to County in care of , Administrator, County Government Center, , either by hand or by mail within the 15-day period. If sent by mail, the rescission must be: 1. Postmarked within the 15-day period; 2. Properly addressed to County; and 3. Sent by certified mail, return receipt requested.

I have read this Release carefully and understand all of its terms. I have had an opportunity to discuss this Release with my own attorney. In agreeing to sign this Release, I have not relied on any statements or explanations made by County or its attorney, except as stated herein.

Labor Contracts Release 23-1

I understand and agree that this Release, the Separation Agreement to which it is attached, and the County employee benefit plans in which I am a participant contain all the agreements between County and me. We have no other written or oral agreements.

Date: , 20 . [EMPLOYEE NAME] Witnesses:

Labor Contracts Release 23-2

Employment Agreement THIS AGREEMENT, made and entered into this day of , 20 , by and between the County of , State of Minnesota, a municipal corporation, hereinafter called "County," and (name) , hereinafter called "Employee." WITNESSETH: WHEREAS, the County desires to employ the services of (name) as (title) for the County of , as provided by (statutory cite) ; and WHEREAS, it is the desire of the County to provide certain benefits, establish certain conditions of employment and to set working conditions for Employee; and WHEREAS, it is the desire of the County to (1) secure and retain the services of Employee and to provide inducement for her to remain in such employment, and (2) to provide a just means for terminating Employee's services at such time as she may be unable fully to discharge her duties due to age or disability or when the County may otherwise desire to terminate the employment; and WHEREAS, Employee desires to accept employment as (title) to said County; NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as follows: Section 1. Duties The County hereby agrees to employ (name) as (title) of said County to perform the functions and duties specified in (statute, job specifications or Exhibit # attached hereto) and to perform other legally permissible and proper duties and functions as the County shall from time to time assign. Section 2. Term A. Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the County to terminate the services of Employee at any time, subject only to the provisions set forth in Section 4, paragraphs A and B, of this agreement. B. Nothing in this agreement shall prevent, limit or otherwise interfere with the right of the Employee to resign at any time from her position with the County, subject only to the provision set forth in Section 4, paragraph C, of this agreement. C. Employee agrees to remain in the exclusive employ of the County until ________ 20 , and neither to accept other employment nor to become employed by

Labor Contracts Employment Agreement 24-1

any other employer until said termination date, unless said termination date is affected as hereinafter provided. The term "employed" shall not be construed to include occasional teaching, writing, consulting or military reserve service performed on Employee's time off. D. In the event written notice is not given by either party to this agreement to the other (number of days or months) prior to the termination date as hereinabove provided, this agreement shall be extended on the same terms and conditions as herein provided, all for an additional period of years. Said agreement shall continue thereafter for year periods unless either party hereto gives days' (minimum of 90 days is recommended) written notice to the other party that the party does not wish to extend this agreement for an additional term. Section 3. Suspension The County may suspend the Employee with full pay and benefits at any time during the term of this agreement, but only if: 1. a majority of County Board agree, or 2. after a public hearing, a majority of County Board votes to suspend

Employee for just cause provided, however, that Employee shall have been given written notice setting forth any charges at least ten days prior to such hearing by the County Board.

Section 4. Termination and Severance Pay A. In the event Employee is terminated by the County before expiration of the aforesaid term of employment and during such time that Employee is willing and able to perform her duties under this agreement, then in that event the County agrees to pay Employee a lump sum cash payment equal to months' (consider six months) aggregate salary; provided, however, that in the event Employee is terminated because of proof or conviction of any illegal act involving personal gain to her, then, in that event, the County shall have no obligation to pay the aggregate severance sum designated in this paragraph. B. In the event the County at any time during the term of this agreement reduces the salary or other financial benefits of Employee in a greater percentage than an applicable across-the-board reduction for all department head employees of the County, or in the event the County refuses, following written notice, to comply with any other provision benefiting Employee herein, or the Employee resigns following a suggestion, whether formal or informal, by the County that she resign, then, in that event, Employee may, at her option, be deemed to be "terminated" at the date of such reduction or such refusal to comply within the meaning and context of the herein severance pay provision.

Labor Contracts Employment Agreement 24-2

C. In the event Employee voluntarily resigns her position with the County before expiration of the aforesaid term of her employment, then Employee shall give the County months' (two to three months is average) notice in advance, unless the parties otherwise agree. Section 5. Disability If Employee is permanently disabled or is otherwise unable to perform her duties because of sickness, accident, injury, mental incapacity or health for a period of four successive weeks, or for twenty working days over a thirty working day period, the County shall have the option to terminate this agreement, subject to the severance pay requirements of Section 4, paragraph A. However, Employee shall be compensated for any accrued vacation, holidays, or compensatory time. Section 6. Salary The County agrees to pay Employee for her services rendered pursuant hereto an annual base salary of $ , payable in installments at the same time as other employees of the County are paid. In addition, the County agrees to increase said base salary and/or other benefits of Employee in such amounts and to such extent as the County Board may determine that it is desirable to do so on the basis of an annual salary review of said Employee made at the same time as similar consideration is given other employees generally. Section 7. Performance Evaluation

A. The County Board shall review and evaluate the performance of the Employee at least once annually in advance of the adoption of the annual operating budget. Said review and evaluation shall be in accordance with specific criteria developed jointly by the County and Employee. Said criteria may be added to or deleted from as the County Board may from time to time determine. Further, the County Board Chairperson shall provide the Employee with a summary written statement of the findings of the County Board and provide an adequate opportunity for the Employee to discuss her evaluation with the County Board.

B. Annually, the County Board and Employee shall define such goals and

performance objectives which they determine necessary for the proper operation of the County and in the attainment of the County's policy objectives and shall further establish a relative priority among those various goals and objectives, said goals and objectives to be reduced to writing. They shall generally be attainable within the time limitations as specified and the annual operating and capital budgets and appropriations provided. C. In effecting the provisions of this Section, the County Board and Employee mutually agree to abide by the provisions of applicable law.

Labor Contracts Employment Agreement 24-3

Section 8. Hours of Work It is recognized that Employee must devote a great deal of time outside the normal office hours to business of the County, and to that end Employee will be allowed to take compensatory time off as she shall deem appropriate during said normal office hours. Section 9. Outside Activities Employee shall not spend more than three hours per month in teaching, counseling or other non-County connected business without the prior approval of the County Board. Section 10. Automobile Employee's duties require that she shall have the exclusive and unrestricted use at all times during her employment with the County of an automobile provided to her by the County. The County shall be responsible for paying for liability, property damage and comprehensive insurance and for the purchase, operation, maintenance, repair and regular replacement of said automobile. Employee shall be responsible for any personal income tax ramifications from permanent assignment of an automobile. Section 11. Vacation, Sick and Military Leave A. Employee shall be credited with days (number of days granted other employees in one year is recommended) of vacation leave and days (number of days granted other employees in one year is recommended) of sick leave. Thereafter, Employee shall accrue, and have credited to her personal account, vacation and sick leave at the rate of per pay period. B. Employee shall be entitled to military reserve leavetime pursuant to state law. Section 12. Disability, Health and Life Insurance A. The County agrees to provide hospitalization, surgical and comprehensive medical insurance for Employee and make available subsidized private pay for dependents' coverage and to pay the premiums thereon equal to that which is provided all other employees of the County or, in the event no such plan exists, to provide same for Employee.

B. Employee agrees to submit to a complete preemployment physical examination by a qualified physician selected by the County, the cost of which shall be paid by the County. The County shall receive a copy of all medical reports related to said examination.

Labor Contracts Employment Agreement 24-4

Section 13. Dues and Subscriptions The County agrees to budget and to pay for the professional dues and subscriptions of Employee necessary for her continuation and full participation in national, regional, state and local associations and organizations necessary and desirable for her continued professional participation, growth and advancement, and for the good of the County, not to exceed $ per year. Section 14. Professional Development A. The County hereby agrees to budget for and to pay the travel and subsistence expenses of Employee for professional and official travel, meetings and occasions adequate to continue the professional development of Employee and to adequately pursue necessary official and other functions for the County, including but not limited to . B. The County also agrees to budget and to pay for the travel and subsistence expenses of Employee for short courses, institutes and seminars that are necessary for her professional development and for the good of the County. Section 15. General Expenses The County recognizes that certain expenses of a nonpersonal and generally job-affiliated nature are incurred by Employee, and hereby agrees to reimburse or to pay said general expenses, up to an amount not to exceed $ per month, and the Finance Director is hereby authorized to disburse such monies upon receipt of duly executed expense or petty cash vouchers, receipts, statements or personal affidavits. Section 16. Civic Club Membership The County recognizes the desirability of representation in and before local civic and other organizations, and Employee is authorized to become a member of , for which the County shall pay all expenses. Employee shall report to the County on each membership that she has taken out at the County's expense. Section 17. Indemnification The County shall defend, save harmless and indemnify Employee against any tort, professional liability claim or demand or other legal action, whether groundless or otherwise, arising out of an alleged act or omission occurring in the performance of Employee's duties as (job title) , as required by the County Indemnification Policy. Section 18. Bonding The County shall bear the full cost of any fidelity or other bonds required of the Employee under any law or ordinance.

Labor Contracts Employment Agreement 24-5

Section 19. Other Terms and Conditions of Employment A. The County Board, in consultation with the manager, shall fix any such other terms and conditions of employment, as it may determine from time to time, relating to the performance of Employee, provided such terms and conditions are not inconsistent with or in conflict with the provisions of this agreement or any other law. B. All provisions of the County relating to vacation and sick leave, retirement and pension system contributions, holidays and other fringe benefits and working conditions as they now exist or hereafter may be amended, also shall apply to Employee as they would to other employees of the County, in addition to said benefits enumerated specifically for the benefit of Employee except as herein provided. C. Employee shall be entitled to receive the same vacation and sick leave benefits as are accorded department heads, including provisions governing accrual and payment therefor on termination of employment. Section 20. No Reduction of Benefits The County shall not at any time during the term of this agreement reduce the salary, compensation or other financial benefits of Employee, except to the degree of such a reduction across-the-board for all employees of the County. Section 21. Notices

Notices pursuant to this agreement shall be given by deposit in the custody of the United States Postal Service, postage prepaid, addressed as follows:

(1) COUNTY: (Title and address of relevant official) (2) EMPLOYEE: (Name and address of Employee) Alternatively, notices required pursuant to this agreement may be personally served in the same manner as is applicable to civil judicial practice. Notice shall be deemed given as of the date of personal service or as of the date of deposit of such written notice in the course of transmission in the United States Postal Service. Section 22. General Provisions A. The text herein shall constitute the entire agreement between the parties. B. This agreement shall be binding upon and inure to the benefit of the heirs at law and executors of Employee C. This agreement shall become effective commencing , 20 .

Labor Contracts Employment Agreement 24-6

D. If any provision, or any portion thereof, contained in this agreement is held unconstitutional, invalid or unenforceable, the remainder of this agreement, or portion thereof, shall be deemed severable, shall not be affected and shall remain in full force and effect. IN WITNESS WHEREOF, the County of and Employee have caused this agreement to be signed and executed, both in duplicate, the day and year first above written. EMPLOYEE COUNTY OF BY: BY: Auditor BY: Chairperson of Board APPROVED AS TO FORM & EXECUTION BY: Assistant County Attorney

Labor Contracts Employment Agreement 24-7

VII. Agreement for Arbitration

Agreement for Arbitration WHEREAS, on (date) , (Parties A, B, and C names and addresses) entered into a

contract entitled DEALER AGREEMENT (hereinafter DEALER AGREEMENT), a copy of

which is attached hereto as Exhibit A, under which (Party A) and (Party B) were to work as an

independent dealer of products and services.

WHEREAS, in (month) of (year), (Party A) and (Party B) purported to terminate the

DEALER AGREEMENT for cause, and demanded, among other things, commissions allegedly

owed them by (Party C).

WHEREAS, Exhibit of the DEALER AGREEMENT specifies the confidentiality

obligations of a dealer of (products and services).

WHEREAS, in (month) of year), (Party C) demanded that (Party A) and Party B)

continue to honor certain provisions of the DEALER AGREEMENT, including a covenant not to

compete with (Party C) for a period of one year after termination of the agreement, a duty of

confidentiality and a duty not to divert (Party C’s) customers to another competitor.

WHEREAS, (Party A), (Party B) and (Party C) desire to enter into an agreement to

arbitrate as provided herein and to resolve all disputes among them by arbitration and without the

time and expense associated with court proceedings, pursuant to the terms of the Minnesota

Uniform Arbitration Act, Minn. Stat. Ch. 572B1, except as provided otherwise herein.

WHEREAS, (Party C) believes that it is imperative that there be an immediate

determination whether (Party A) and (Party B) will be bound by the confidentiality, non-compete

and non-diversion provisions of the DEALER AGREEMENT during the pendency of the

arbitration proceeding.

THEREFORE, (Party A), (Party B) and (Party C) agree as follows:

1. The parties will refrain from bringing suit against each other for the duration of

this proceeding. While this proceeding is pending and ongoing, the arbitration provided by this

AGREEMENT shall be the only forum for the parties to resolve differences relating to the

business relationship between them, under the terminated DEALER AGREEMENT or resulting

from the termination thereof. If a hearing on (Party C's) application for an Order Compelling

(Party A) and (Party B) to comply with Sections , and of the DEALER

AGREEMENT and Exhibit thereto is not held for any reason, this AGREEMENT and

the arbitration contemplated by this AGREEMENT shall be dissolved and all parties shall be free

to institute any other form of action or proceeding deemed appropriate, unless this provision is

waived by all parties in writing.

1 572.08 - .30 repealed and Ch. 572B eff. August 1, 2012.

Agreement for Arbitration Agreement for Arbitration 25-1

2. The arbitration established by this Agreement shall be conducted

according to the rules of the American Arbitration Association, except as otherwise

provided herein. The arbitration shall be conducted by a panel of three (3) arbitrators. The

parties hereby appoint as one neutral arbitrator. (Party C) shall select one

neutral arbitrator from a list of arbitrators provided by the American Arbitration

Association, and (Party A) and (Party B) shall select one neutral arbitrator from a list of

arbitrators to be provided by the American Arbitration Association.

3. The three arbitrators shall be appointed within twenty-four (24) hours of

the execution of this AGREEMENT, if possible, and shall conduct a hearing on (Party

C's) application for an Order Compelling (Party A) and (Party B) to comply during the

pendency of this arbitration with Sections , and of the DEALER

AGREEMENT and the corresponding terms of Exhibit to the DEALER

AGREEMENT. Such hearing shall be conducted on or before (date) unless the parties

shall agree in writing to extend this date.

4. Within two weeks after the execution of this AGREEMENT, each party

shall submit to the arbitrators, with copies to each other, a full statement of each claim of

the party along with such documentary supporting material as that party considers

appropriate.

5. The arbitrators shall resolve all matters submitted to them by the parties.

The arbitrators may request an extension of the decision date, and the parties will

reasonably consider whether to extend jointly that date.

6. The parties expressly agree that this arbitration proceeding shall resolve all

issues between the parties arising out of the DEALER AGREEMENT, the dealer

relationship, including all conduct affecting the parties during such relationship, and the

termination thereof. In keeping with this provision, the arbitrators shall have all powers

of a court of law in the relevant jurisdiction. Such powers shall include but not be limited

to:

a) the power to issue temporary restraining orders and injunctions;

b) the power to award damages;

c) the power to issue subpoenas;

d) the power to issue all orders and to take all actions necessary to enforce

their jurisdiction as granted in this AGREEMENT and set forth pursuant

to Minnesota Uniform Arbitration Act, Stat. § 572B, including, but not

limited to, a power to make application to a court of law in the relevant

jurisdiction to compel enforcement of the arbitrators' interlocutory and

final awards and rulings; and

Agreement for Arbitration Agreement for Arbitration 25-2

e) the power to issue any order necessary to enforce the provisions and spirit

of this AGREEMENT, including the right to dissolve this arbitration

proceeding, if necessary.

7. The parties shall be permitted limited discovery, including not more than

four (4) oral depositions by each party, not more than twelve (12) written interrogatories,

or twelve (12) document requests by each party. The parties shall be permitted not more

than three (3) third-party depositions by each party. Pursuant to Minnesota Uniform

Arbitration Act, the arbitrators shall issue subpoenas when reasonably requested,

including such as may be made prior to commencement of the arbitration hearing, by the

parties to compel persons and entities, including third parties, to provide testimony and to

produce documents that are deemed necessary for the resolution of this dispute. For

purposes of this paragraph, (Parties A and B) shall be considered one party and (Party C)

shall be considered one party. All discovery shall be conducted according to the

Minnesota Rules of Civil Procedure, except that the time for responding to written

interrogatories and document requests under Rules 33 and 34 shall be reduced to fifteen

(15) days. Discovery shall be completed by (date). Discovery may be commenced by

either party immediately.

8. At a time and place to be established by the arbitrators, the parties shall

appear and give evidence to the arbitrators in a form and manner acceptable to the

arbitrators, and the parties shall be allowed to explain and argue their positions. The

arbitrators may request such additional documentation as they consider appropriate, and

the parties shall provide it to the extent such evidence is available.

9. The parties agree that any award, order, decision or judgment by two (2)

members of the panel of neutral arbitrators shall be final and binding upon parties as

provided by the Minnesota Uniform Arbitration Act.

Dated: By:

Dated: By:

Dated: By:

Agreement for Arbitration Agreement for Arbitration 25-3

VIII. Miscellaneous

Contracts

Fire Protection Services Agreement

THIS AGREEMENT, made this day of , 20 , by and between

the Volunteer Fire Department, Inc. a corporation organized under the laws of

the State of Minnesota, hereinafter referred to as the "Fire Department," and the County

of___________________, State of Minnesota, hereinafter referred to as the "County."

WHEREAS, Unorganized Township____________________ is in need of fire protection

services; and

WHERAS, County is authorized under the provisions of Minnesota Statutes §365.243

(2011) to provide fire protection services to an unorganized township and to levy taxes on the

property in the township for the payment of fire protection services; and

WHEREAS, the Fire Department has the means and the ability to provide said fire

protection services to the Unorganized Township(s).

NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter

stated, the parties do agree as follows:

(a) Scope of Services

Fire Department agrees to furnish fire protections services to all of the property located within Unorganized Township _____ and further agrees that the Fire Department will make a reasonable effort to respond to all fires within such Unorganized Townships(s) whenever it is notified of such fires for the sole compensation and on the conditions hereinafter set forth.

(b) Term. This contract shall be in force for one year for a term beginning January 1, 20 , and shall terminate on the 31st day of December, 20 .

(c) Obligations of Fire Department

1. The Fire Department agrees that it will acquire, maintain, and house all of its fire fighting apparatus and equipment without any cost to the County, that it will make all repairs to the fire fighting equipment and apparatus at its own expense and cost, and that it will further furnish all of the fuel, oil, and other supplies needed to operate any of its equipment.

2. The Fire Department further agrees that it will make no claim against the

County for any damage to the property of the Fire Department or for personal injuries to any firefighter while in route to, serving at, or returning from fire

Miscellaneous Contracts Fire Protection Services Agreement

26-1

fighting services within the Unorganized Township, nor will it make any other claim or demand against the County arising out of this Agreement.

3. The Fire Department agrees that it will carry all necessary liability and

property damage insurance, and all necessary worker's compensation insurance as provided for by law.

(d) The County agrees to pay the Fire Department, as compensation for all fire

protection services rendered in Unorganized Township , the sum of $___________, in two equal installments on or before January 31, 20__, and July 31, 20__. [or in the alternative: up to the sum of $ , on or before the 31st day of December, 20 .]

This sum shall be in full payment for the use of the Fire Department personnel and fire equipment, cost of new equipment, compensation of firefighters, premiums for insurance, and any and all other expenses incurred by the Fire Department.

(e) Independent Contractor. The Fire Department is to be and shall remain an

independent contractor with respect to and all work performed under this Agreement. It is agreed that nothing herein contained is intended or should be construed in any manner as creating or establishing a relationship of agents, partners, joint venturers, or associates between the Fire Department and the County or as constituting the Fire Department or any of its employees as the employees of the ?County for any purpose or in any manner whatsoever.

(f) Indemnification. Any and all claims that arise or may arise against Fire

Department, its agents, servants or employees as a consequence of any act or omission on the part of Fire Department or its agents, servants, or employees while engaged in the performance of the Agreement shall in no way be the obligation or responsibility of the County. Fire Department shall indemnify, hold harmless and defend the County, its officers and employees against any and all liability, loss, costs, damages, expenses, claims or actions, including attorney’s fees which the County, its officers or employees may hereafter sustain, incur or be required to pay, arising out of or by reason of any act or omission of Fire Department, its agents, servants or employees, in the execution, performance, or failure to adequately perform Fire Department’s obligations pursuant to this Agreement.

(g) Insurance. The following insurance must be maintained by the Fire

Department for the duration of this Agreement. A Certificate of Insurance for each policy must be on file with the St. Louis County Purchasing Department before January 1 of the year covered by this Agreement and each certificate must include a ten-day notice of cancellation, non-renewal, or material change to all named and additional insureds. No payments under this Agreement will be made by the County until Certificates are on file.

Miscellaneous Contracts Fire Protection Services Agreement

26-2

1. General Liability Insurance. a. $500,000 for claims for wrongful death and each claimant for other

claims. $1,500,000 Each Occurrence. No Less Than $2,000,000 Aggregate coverage. b. Policy shall include at least premises, operations, completed operations,

independent contractors and subcontractors, and contractual liability and environmental liability.

c. St. Louis County shall be named additional insured. 2. Business Automobile Liability Insurance. a. $500,000 for claims for wrongful death and each claimant for other

claims. $1,500,000 Each Occurrence for claims. No Less Than $2,000,000 Aggregate coverage. b. Must cover owned, non-owned, and hired vehicles. 3. Worker’s Compensation.

Per statutory requirements. Certificate of Compliance must be executed and filed with the St. Louis County Auditor.

(h) Records Auditing and Retention. Fire Department’s books, records, documents,

papers, accounting procedures and practices, and other evidences relevant to this Agreement are subject to the examination, duplication, transcription and audit by the County and either the Legislative or State Auditor, pursuant to Minn. Stat. § 15C.05, subd. 5. Such evidences are also subject to review by the Comptroller General of the United States, or a duly authorized representative, if federal funds are used for any work under this Agreement. The Fire Department agrees to maintain such evidences for a period of six (6) years from the date services or payment were last provided or made or longer if any audit in progress requires a longer retention period.

(i) Final Agreement. This contract is the final agreement of the parties and the complete and exclusive statement of the terms agreed upon, and shall supersede all prior negotiations, understandings, or agreements.

Miscellaneous Contracts Fire Protection Services Agreement

26-3

IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed this _______day of , 20 . COUNTY OF _____________________ VOLUNTEER FIRE DEPARTMENT, INC. BY: BY: President Chairman, Board of Commissioners BY: BY: Secretary Auditor APPROVED AS TO FORM & EXECUTION BY: Assistant County Attorney

Miscellaneous Contracts Fire Protection Services Agreement

26-4

[Name of Business Associate] acknowledges that it is a “Business Associate” of [Name of Provider] as defined by the standards for Privacy of Individually Identifiable Health Information under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by Sections 13400 through 13424 of the Health Information Technology for Economic Clinical Health Act (the “HITECH Act”), which was enacted as part of the American Recovery and Reinvestment Act of 2009 (“ARRA”). In accordance with the terms set forth in this “Privacy Agreement,” [Name of Business Associate] and [Name of Provider] shall use reasonable best efforts to protect the privacy of Protected Health Information. 1. Terms and Terminology.

1.1. Provider. “Provider” means [Name of Provider]. 1.2. Business Associate. “Business Associate” means [Name of Business Associate]. 1.3. Patient. “Patient” means a patient of Provider. 1.4. Terms. Terms used, but not defined, in this Privacy Agreement shall have the same

meaning as those terms in the Privacy Rule or the Security Rule.

1.5. Privacy Rule. “Privacy Rule” shall mean the standards for Privacy of Individually Identifiable Health Information contained in 45 CFR Parts 160 and 164, Subparts A and E.

1.6. Protected Health Information. “Protected Health Information” and/or “PHI” means information, whether oral or recorded in any form or medium, including demographic information, that: (i) relates to the past, present or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present or future payment for the provision of health care to an individual; (ii) identifies the individual, or for which there is a reasonable basis for believing that the information can be used to identify the individual; and (iii) is received by Business Associate from or on behalf of Provider, or is created by Business Associate for Provider, or is made accessible to Business Associate by Provider. PHI includes, without limitation, “Electronic Protected Health Information” and/or “EPHI,” as that term is defined at 45 CFR § 160.103.

1.7. Patient Record. “Patient Record” means any item, collection, or grouping of information that includes Protected Health Information that is maintained, collected, used, or distributed by Provider.

1.8. Services Agreement. “Services Agreement” means the [Name of Services Agreement] by and between Provider and Business Associate having an effective date of [Effective Date of Services Agreement].

1.9. Person. “Person” means any legal entity or individual.

HIPAA BUSINESS ASSOCIATE AGREEMENT

Miscellaneous Contracts HIPAA BUSINESS ASSOCIATE AGREEMENT 27-1

1.10. Security Rule. “Security Rule” means the Security Standards for the Protection of Electronic Protected Health Information contained in 45 CFR Parts 160 and 164, Subparts A and C.

1.11. Personal Health Records. “Personal Health Records” means electronic records of personal health information, regardless of whether the information has been created or received by Provider, health plan, employer, or health care clearinghouse, in order to distinguish it from individually identifiable health information that is created or received by Provider, health plan, employer, or health care clearinghouse. Personal Health Records includes the kinds of records managed, shared and controlled by or primarily for the Patient, but not records managed by or primarily for commercial enterprises, such as life insurance companies.

1.12. Unsecured Protected Health Information. “Unsecured Protected Health Information” and/or “Unsecured PHI” means information that is not secured through the use of a technology or methodology identified by the Secretary to render the Protected Health Information unusable, unreadable and undecipherable to unauthorized users. 2. Business Associate’s Obligations.

2.1. Business Associate Subject to Same Standards and Same Penalties as Provider. Business Associate will comply with the use and disclosure provisions of the Privacy Rule and the security standards regarding administrative, physical and technical safeguards of the Security Rule. As set forth in the HITECH Act, Business Associate will be subject to civil and criminal penalties for violation of the Privacy Rule or the Security Rule.

2.2. Permitted Uses and Disclosures. Business Associate shall use or disclose PHI solely as necessary to perform the services set forth in the Services Agreement, and as permitted or required by this Privacy Agreement or as required by law.

2.3. Safeguards. Business Associate shall use appropriate privacy and security measures to prevent the use or disclosure of PHI other than as permitted under this Privacy Agreement. Such measures shall include, but not be limited to: (i) implementing and maintaining appropriate administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of any EPHI that it creates, receives, maintains, or transmits on behalf of Provider, as required by the Privacy Rule and Security Rule; and (ii) taking measures to ensure compliance with standards and implementation specifications with respect to the administrative, physical, and technical safeguards, as required by 45 C.F.R. §§ 164.308, 164.310, 164.312, and 164.316.

2.4. Mitigation. If Business Associate uses or discloses PHI in a manner other than as permitted under this Privacy Agreement, Business Associate shall use its reasonable best efforts to mitigate the effects of the use or disclosure. These efforts shall include, but are not be limited to, ensuring that the improper use of PHI is discontinued immediately, seeking return or destruction of the improperly disclosed PHI, and ensuring that any person to whom PHI was improperly disclosed will not redisclose such information.

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2.5. Duty to Report. Business Associate shall immediately notify Provider of any use or disclosure of PHI of which Business Associate is aware that is not expressly authorized under this Privacy Agreement, whether made by Business Associate, its employees, representatives, agents, or subcontractors. Business Associate shall also immediately notify Provider of any attempted or successful unauthorized access, use, disclosure, modification, or destruction of information, or interference with the system operations in an information system. Business Associate shall provide in such notice the remedial or other actions taken to correct the unauthorized use or disclosure.

2.6. Agents. Business Associate will ensure that any of its employees, agents, subcontractors, or other third parties with which Business Associate does business are aware of and are bound to abide by Business Associate’s obligations under this Privacy Agreement.

2.7. Access to Patient Record. Business Associate understands that a Patient has the right to access the PHI in its Patient Record in accordance with 45 C.F.R. § 164.524. To provide Patients with access to Patient Records held by Business Associate, Business Associate agrees to provide access to, or copies of, any Patient Record upon request by Provider. Provider shall request access by giving at least 48 hours notice by facsimile, telephone, or electronic mail. Business Associate may charge Provider for the reasonable costs of copying only if Provider is allowed under state and federal law to recoup such costs from the Patient.

2.8. Amendments to Patient Record. Business Associate understands that a Patient may have the right to amend the PHI in its Patient Record. To provide Patients with the ability to amend PHI in Patient Records held by Business Associate, Business Associate agrees to make amendments to any Patient Record upon request of Provider. Business Associate shall make such amendment within 30 days of the written request of Provider.

2.9. Duty to Document Disclosures.

a. Business Associate will document each disclosure it makes of PHI to any other person, including Provider. The documentation shall include:

i. The date of the disclosure;

ii. The name of the person receiving the PHI, and, if known, the

address of such person; and

iii. A brief statement of the purpose of the disclosure or, instead of such statement, a copy of the request for disclosure.

b. Notwithstanding Section 2.9(a), Business Associate is not required to

document the following disclosures:

i. Unless otherwise required by Section 2.10, disclosures made for the purpose of, or incidental to, carrying out treatment, payment, or health care operations;

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ii. Disclosures made prior to April 14, 2003;

iii. Disclosures made to provide the Patient with access to its PHI

under Section 2.7;

iv. Disclosures made pursuant to a Patient’s written authorization;

v. Disclosures required by law for national security or intelligence purposes;

vi. Disclosures to correctional institutions or law enforcement officials

having lawful custody of a Patient;

vii. Disclosures made as part of a limited data set;

viii. Disclosures made to persons involved in the individual’s care; and

ix. Disclosures made for notification purposes such as in an emergency.

2.10. Accounting of Disclosures. Business Associate understands that a Patient has the

right to an accounting of disclosures of PHI. To provide Patients with such an accounting, Business Associate will make available the documentation Business Associate has collected in accordance with Section 2.9 upon written request of Provider. Business Associate shall provide the accounting within 30 days of receipt of Provider’s request. If disclosures were made by Business Associate through the use of an electronic health record, the Patient has the right to receive an accounting of disclosures of personal health records made by Business Associate for treatment, payment, and health care operations during the previous 3 years.

2.11. Minimum Necessary. Business Associate represents and warrants that it will use and disclose PHI in accordance with the Privacy Rule’s “minimum necessary” standards.

2.12. Other Uses and Disclosures. Business Associate will not use or disclose Protected Health Information in any manner that would not be permissible under the Privacy Rule or the Security Rule if used or disclosed by Provider.

2.13. Books and Records and Internal Practices. Business Associate agrees to make all internal practices, books, and records relating to the use and disclosure of PHI available to Provider or to the Secretary of the U.S. Department of Health and Human Services (the “Secretary”), in a time and manner designated by Provider or the Secretary for the purposes of the Secretary determining Provider’s compliance with the Privacy Rule and the Security Rule.

2.14. Business Associate’s Obligations Regarding Unsecured Protected Health Information. Business Associate shall comply with the following obligations that relate to Unsecured PHI.

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a. Notification of Provider. Business Associate will notify Provider of any

Patient whose Unsecured PHI has been, or is reasonably believed by Business Associate to have been, inappropriately accessed, disclosed, or used. Such notification shall include the names and contact information of the Patients involved and shall be made without unreasonable delay, but in no case later than 30 days following discovery of such breach, unless delayed for law enforcement purposes.

b. Notification of Patient. Business Associate will notify the Patient by first

class mail or by e-mail (if the Patient has indicated a preference to receive information by e-mail) of any breaches of Unsecured PHI as soon as possible, but in any event, no later than 60 days following the discovery of the breach. Business Associate will obtain Provider’s approval of the form and content of the written notification before its issuance.

c. Posting Notice of Breach. In the event the breach involves 10 or more

Patients whose contact information is out of date, Business Associate will post a notice of the breach on the home page of its website or in a major print or broadcast media. Business Associate will obtain Provider’s approval of the form and content of the written notice before its posting.

d. Contacting Media Outlets. If a breach involves more than 500 Patients in

a single state or jurisdiction, Business Associate will send a notice to prominent media outlets. Business Associate will obtain Provider’s approval of the form and content of the written notice before its issuance to the media outlets.

e. Notice to the Secretary. If a breach involves more than 500 Patients,

Business Associate will immediately notify the Secretary. Business Associate will obtain Provider’s approval of the form and content of the written notice before its issuance.

f. Contents of Notice. The notices required under this Section shall include

the following:

i. A brief description of the breach , including the date of the breach and the date of its discovery, if known;

ii. A description of the types of Unsecured PHI involved in the

breach;

iii. Steps the Patient should take to protect himself/herself from potential harm resulting from the breach;

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iv. A brief description of actions Business Associate is taking to investigate the breach, mitigate losses, and protect against further breaches; and

v. Contact information, including a toll-free telephone number, e-

mail address, website or postal address to permit Patient to ask questions or obtain additional information.

g. Annual Report to Secretary and Maintenance of Log. Business Associate

will submit an annual report to the Secretary of a breach that involved less than 500 Patients during the year and will maintain a written log of breaches involving less than 500 Patients.

3. Obligations of Provider.

3.1. Notice of Privacy Practices. To the extent that such limitation or restriction may affect Business Associate’s use or disclosure of PHI, Provider shall provide Business Associate with a copy of its Notice of Privacy Practices, and notify Business Associate of:

a. Any limitation(s) in its Notice of Privacy Practices;

b. Any changes in, or revocation of, permission by a Patient to use or disclose PHI; and

c. Any restriction to the use or disclosure of PHI to which Provider has

agreed, to the extent that such restriction may affect Business Associate’s use or disclosure of PHI.

3.2. Permissible Requests. Provider shall not request Business Associate to use or

disclose PHI in any manner that would not be permissible under the Privacy Rule if used or disclosed by Provider. 4. Term and Termination.

4.1. Term. The Term of this Privacy Agreement shall be effective as of the effective date of the Services Agreement and shall continue in effect until all obligations of the parties have been met, unless terminated by mutual agreement of the parties or as provided in Section 4.

4.2. Termination for Cause. Provider may immediately terminate this Privacy Agreement and the Services Agreement if, after providing Business Associate written notice of the existence of a material breach of this Privacy Agreement, Business Associate fails to, or is unable to, cure the breach upon mutually agreeable terms within 10 days.

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4.3. Effect of Termination.

a. Except as provided in Section 4.3(b), upon expiration or termination of the Services Agreement for any reason, Business Associate shall return or destroy all PHI, including PHI that is in the possession of subcontractor or agents of Business Associate. Business Associate shall retain no copies of PHI.

b. To the extent that it is not feasible for Business Associate to return or destroy all PHI, then

i. Business Associate’s obligations under this Privacy Agreement

shall continue for as long as Business Associate maintains such PHI; and

ii. Business Associate’s further uses and disclosures of PHI shall be

limited to those purposes that make it not feasible for Business Associate to return or destroy the information for as long as Business Associate maintains such PHI.

5. Miscellaneous Provisions.

5.1. Notice. Notices, requests, and other communications that are required to be in writing must be personally delivered, mailed by prepaid certified mail, return receipt requested, or sent by overnight carrier, and must be addressed as follows. Such notice shall be effective upon being mailed or personally delivered.

If to Provider: [Provider’s Name and Address]

If to Business Associate: __________________________ __________________________ __________________________ __________________________ __________________________

5.2. Mutual Representation and Warranty. Business Associate and Provider each

represents and warrants to the other that all of its employees, agents, representatives, and members of its work force, whose services may be used to fulfill obligations under this Privacy Agreement and/or the Services Agreement, are or shall be appropriately informed of the terms of this Privacy Agreement and are under legal obligation to fully comply with all provisions of this Privacy Agreement.

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5.3. Business Associate Warranty. To the extent required by law or regulations, Business Associate warrants that it has implemented a Red Flags Program in accordance with the Federal Trade Commission’s Identity Theft Prevention Red Flags Rule, 16 CFR § 681.1 et seq., or that it agrees to comply with Provider’s Red Flags Program.

5.4. No Third Party Beneficiaries. Nothing express or implied in this Privacy Agreement is intended to confer, or shall confer, any rights, remedies, or liabilities upon any person other than Business Associate and Provider.

5.5. Effect of Assignment. This Privacy Agreement shall be binding upon and shall inure to the benefit of Business Associate and Provider and their respective transferees, successors and assigns, except that Business Associate shall not have the right to assign or transfer this Privacy Agreement, or Business Associate’s rights and obligations hereunder, without Provider’s prior written consent. Upon assignment or transfer of this Privacy Agreement, Business Associate shall return or destroy all PHI in accordance with the terms set forth in Section 4.3.

5.6. Regulatory References. A reference in this Privacy Agreement to a section in the Privacy Rule or the Security Rule or a term defined in the Privacy Rule or the Security Rule means the section or definition as in effect or as amended.

5.7. Amendment. Business Associate and Provider agree to take such action to amend this Privacy Agreement as is necessary for Provider to comply with the requirements of the Privacy Rule and the Security Rule.

5.8. Survival. The respective rights and obligations of Business Associate under this Privacy Agreement shall survive the termination of this Privacy Agreement and the Services Agreement.

5.9. Interpretation. Any ambiguity in this Privacy Agreement shall be resolved to permit Provider to comply with the Privacy Rule and the Security Rule.

5.10. Captions and Headings. The captions and headings in this Privacy Agreement are included for convenience and reference only, and shall in no way be held or deemed to define, limit, describe, explain, modify, amplify or add to the interpretation, construction or meaning of, or the scope or intent of, this Privacy Agreement.

[Signature Page Follows]

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IN WITNESS WHEREOF, Provider and Business Associate have executed or caused the execution of this Privacy Agreement as of the dates set forth below: Provider: [Name of Provider] By: Its: Date: Business Associate: By: Its: Date:

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