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Joint Drainage Authority for Le Sueur and Blue Earth
County, Sitting as Drainage Authority for Joint Ditch 1
WebEx
December 15, 2020 at 1:30 p.m.
AGENDA
1. Call In Information
Le Sueur County WebEx Meeting
December 15, 2020 at 1:30 p.m.
Mobile Device/Phone
1-408-418-9388
Meeting number (access code) 146 434 2446
Meeting password: Dec152020JD1-2
Documents:
LE SUEUR COUNTY BOARD ROOM INVITES YOU TO JOIN THIS WEBEX
MEETING 12.15.20 JD1-2.PDF
2. Call The Meeting To Order, Joint Chair Rohlfing
3. JD 1 Viewers Contract
Documents:
LE SUEUR-BLUE EARTH JD 1 CONTRACT (1).PDF
4. Adjourn

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Le Sueur County Board Room invites you to join this Webex meeting.
Tuesday, December 15, 2020
1:30 p.m. | (UTC-05:00) Central Time (US & Canada) | 30 minutes
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VIEWING PROFESSIONAL SERVICES CONTRACT FOR
REDETERMINATION OF BENEFITS AND GRASS STRIP ACQUISITION ON
LE SUEUR-BLUE EARTH JD 1 IN LE SUEUER & BLUE EARTH COUNTY, MN
This Viewing Professional Services Contract (this “Agreement”) is made
effective ________________, 2020 (the “Effective Date”), by and between Bryan
Murphy (“Murphy”), Shantel Hecht (“Hecht”) and Larry Murphy (“Larry”)
(collectively, the “Viewers”) and Robert Conely (“Robert”), acting through H2Over
Viewers, LLC, a Minnesota limited liability company (the “Company”), and the
Drainage Authority of Le Sueur – Blue Earth JD 1 (the “Drainage Authority”), for the
Redetermination of Benefits and Grass Strip Acquisition for JD 1 (the “Drainage
System”).
RECITALS
A. Viewers Murphy, Hecht and Larry, along with Robert as an alternative Viewer,
were appointed by the Drainage Authority on July 14, 2020.
B. The Viewers operate and coordinate their administrative functions, through the
Company.
C. The Drainage Authority has funds available to purchase the services contemplated
by this Agreement (collectively the “Services”).
D. The Drainage Authority desires to purchase the Services of the Viewers and the
Company in connection with the redetermination of benefits and grass strip
acquisition for the Drainage System (the “Redetermination of Benefits”).
AGREEMENT
In consideration of the foregoing Recitals, the mutual undertakings and agreements
hereinafter set forth, and for other good and valuable consideration, the receipt and
sufficiency of which the parties acknowledge, the parties agree as follows:
1. VIEWING SERVICES.
a. General Viewing Services. Pursuant to this Agreement’s terms and
conditions, the Viewers, individually and as a part of the viewing team,
will provide professional services in connection with the development of
the viewing procedures for the Redetermination of Benefits within the
Drainage System’s watershed, professional analysis, meeting facilitation
and report preparation as follows (the following collectively hereinafter
referred to as the “General Viewing Services”):
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i. First Meeting of Viewers: Attend and participate in the first
meeting of the Viewers. Take Viewer’s oath and make initial
coordination with Drainage Authority staff and/or engineer.
ii. Review Historical Drainage System Information: Gather data
regarding the Drainage System and its watershed. Identify/verify
watershed boundaries or max extent of benefited area; identify
parcels to be viewed by section, township, range and property ID
number; identify owner/occupant information by name and mailing
address (on file with County Auditor/Treasurer/Assessor); identify
hydraulic efficiency of Drainage System (working with engineer).
iii. Coordination Meeting with Drainage Authority Staff:
Identify/verify watershed boundaries or max extent of benefited
area; identify parcels to be viewed by section, township, range and
property ID number; identify owner/occupant information by name
and mailing address; identify hydraulic efficiency of Drainage
System (working with engineer); and develop mapping
information and maps to aid in viewing process.
iv. Conduct Office and Field Investigations and Viewing: Identify any
modification to natural drainage; identify unique features - land
use, impervious surface, isolated basins, erosive soils, conservation
practices; determine element of benefit utilizing standards in
Minnesota Statutes Section 103E.315 and accepted viewing
practices; address direct benefits and outlet benefits; meet with
owners onsite when necessary to clarify issues.
v. Prepare and Deliver Viewers’ Report: Following the standards of
Minnesota Statutes Section 103E.321; prepare and deliver to the
Drainage Authority, a viewer’s report, consisting of the following
(the following collectively hereinafter referred to as the “Viewer’s
Report”):
1. A narrative report outlining the Viewers’ basis and
findings, provided to the Drainage Authority in MS Word
or PDF form;
2. A tabular report called “Exhibit A” listing out every parcel
according to Minn. Stat. Section 103E, provided in PDF
form (MS Excel format if needed); and
3. A GIS derived image of the entire Drainage System and the
classifications therein, provided in JPEG format.
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vi. Prepare Benefited Area Map: Prepare a map identifying benefited
areas for use by Drainage Authority and prepare exportable digital
format for Drainage Authority's use.
b. Landowners’ Meeting. At least one of the Viewers shall attend and
participate in a Landowners’ Meeting (as hereinafter defined). A
“Landowners’ Meeting” shall mean one informational group meeting
with at least one of the Viewers and the landowners to provide an
overview of the viewing process and value determinations and at which
the Viewer(s) attending address individual questions from land owners in
attendance immediately following the meeting presentation. Additional
Revisions may be made to the Viewer’s Report after the Landowners’
Meeting, but prior to the Final Hearing, to address changes brought
forward during the Landowners’ Meeting.
c. Final Hearing. The Viewers shall present determination of benefits and
damages to the Drainage Authority and the public; explain viewing
methodology and basis of benefit and damage determinations; answer
questions of the Drainage Authority and public regarding specific
determinations, to the best of the Viewers’ ability; and schedule
reviewing as necessary to validate determinations (collectively the “Final
Hearing”).
d. Hourly Services. As needed or as requested by the Drainage Authority,
the Viewers will also furnish the following services (collectively the
“Hourly Services”):
i. Additional Revisions. Conduct reviewing; prepare summaries of
reviewing; submit changes and revise report, if necessary; and
provide explanation of changes, if necessary, revise Viewer’s
Report to address issues raised at Final Hearing and present
changes, if any, to Viewer’s Report (collectively, “Additional
Revisions”). A final amended version of the Viewer’s Report, as
well as a GIS based file for the Drainage Authority’s ArcPro
software will be provided after all Additional Revisions are made
and the Final Hearing has taken place.
ii. Attendance/Participation at Additional Meetings. Attend and
participate in any additional public meetings.
e. Additional Services. The Viewers may also furnish such additional
services (the “Additional Services”) as may be requested by the
Drainage Authority from time to time, which are not listed as part of the
General Viewing Services, Hourly Services, Landowner’s Meeting or
Final Hearing above, or which are not covered by the Litigation Fee
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under Paragraph 2(c) of this Agreement. The Viewers and the Company
will provide an estimate to the Drainage Authority and receive approval
to proceed from the Drainage Authority before furnishing the Additional
Services.
2. RATES AND FEES. The Drainage Authority shall pay the Company the
following amounts for the Services:
a. Fees for General Viewing Services. The Drainage Authority shall pay the
Company for the Viewers’ performance of the General Viewing Services
at the rate of $3.95 per acre for all acres evaluated by the Viewers or
otherwise determined to be benefitted or damaged (the “Per Acre
Charge”).
b. Hourly Services Charge. In addition to the foregoing Per Acre Charge, for
the Hourly Services, the Drainage Authority shall pay the Company an
amount calculated at the rate of $50/hour (the “Hourly Charge”) for
time spent by each of the Viewers and Company staff performing the
Hourly Services. Hourly Charges shall be calculated to the nearest one-
quarter (1/4) hour.
c. Litigation Fees. The Drainage Authority shall also pay the Company an
additional amount calculated at the rate of $90/hour (the “Litigation
Fee”) for work performed for each Viewer’s time spent at any
appearances required of any of the Viewers in court regarding the
Services or reports provided under this Agreement, or any work provided
as part of an appeal.
d. Authorized Discharge Facilities. In the event the Viewers’ duties include
the determination of benefits and fees for authorized municipal
stormwater, municipal wastewater or commercial or industrial discharges
(each hereinafter defined as an “Authorized Discharge Facility”), an
additional charge of $750.00 per Authorized Discharge Facility.
e. Out-Letting Systems. An additional charge of 50% of the Per Acre
Charge for all acres evaluated by the Viewers or otherwise determined to
be benefited or damaged by the Redetermination of Benefits, if a
contributing drainage system uses the Drainage System. For example, if
there is a $4.00 Per Acre Charge, an additional $2.00 per acre will be
charged for all acres evaluated by the Viewers or otherwise determined to
be benefited or damaged.
f. Continuations. In the event of any hearing continuation, an additional
charge of $2,000.00 per continuance.
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g. Landowners’ Meeting. $2,000.00 for each Landowners’ Meeting (the
“Landowners’ Meeting Fee”). The Drainage Authority acknowledges
and agrees that the Landowners’ Meeting Fee shall automatically be
revised without the Drainage Authority’s consent, to the Company’s then
current fee amount, in the event it takes longer than twelve (12) months
after submission of the Viewer’s Report to the Drainage Authority, to
hold the Landowners’ Meeting. In the event the Drainage Authority
works several systems into one Landowners’ Meeting, only one
Landowners’ Meeting Fee will be charged (not one for each system).
h. Final Hearing. $2,000.00 for the Final Hearing (the “Final Hearing
Fee”). The Drainage Authority acknowledges and agrees that the Final
Hearing Fee shall automatically be revised without the Drainage
Authority’s consent, to the Company’s then current rate, in the event it
takes longer than twelve (12) months after submission of the Viewer’s
Report to the Drainage Authority, to hold the Final Hearing.
i. Expenses. In the event the Viewers and/or the Company provide any
Hourly Services or Additional Services, the Drainage Authority shall
reimburse the Viewers’ for their expenses incurred in providing such
services, which shall include, but not be limited to mileage at the 2020
IRS standard mileage rate, meals, lodging and hotel costs and printing
costs.
3. PAYMENT. The Drainage Authority shall pay to the Company all fees,
surcharges and other amounts provided for above as follows:
a. Payment Requests. The Company shall submit pay requests monthly.
The Drainage Authority shall make payment directly to the Company
within thirty (30) days after the Drainage Authority’s receipt of a pay
request for the Viewers’ Services performed and expenses incurred, in
the manner provided by law for payment of claims against the Drainage
Authority.
b. Proration of Per Acre Charge and Out-Letting System Charge.
i. Monthly Amounts. Because the actual acreage evaluated or
otherwise determined to be benefitted or damaged is not definite
until completion of the Redetermination of Benefits, monthly
amounts due and owing to the Company for the Per Acre Charge,
as well as the Out-Letting System charge, shall be calculated and
paid based upon ninety percent (90%) of the total estimated
acreage to be evaluated or otherwise determined to be benefited or
damaged, as prorated over the course of the estimated time to
complete the Redetermination of Benefits, as reasonably
determined by the Company.
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ii. True-Up Payment. No later than thirty (30) days after the
Company’s submission of its Viewer’s Report to the Drainage
Authority, the Drainage Authority shall pay for any remaining
amounts due and owing for the Per Acre Charge and the Out-
Letting System Charge, based upon the actual final acreage
evaluated and otherwise determined to be benefitted or damaged.
These amounts shall be calculated by taking the Per Acre Charge
and the Out-Letting System Charge and multiplying each by the
actual acreage, and deducting from each respective charge, the
amounts the Drainage Authority has already paid to the Company
for each respective charge. To the extent the Drainage Authority
has over-paid the Company based upon the actual acreage, the
Drainage Authority shall be entitled to a credit for such
overpayment.
c. Remaining Payments. All other charges and expenses reflected within this
Agreement not otherwise paid through monthly pay requests, shall be
paid no later than thirty (30) days after the Company’s submission of its
Viewer’s Report to the Drainage Authority. Notwithstanding the
foregoing, in the event any charges reflected within this Agreement are
incurred or the Services are performed after the Viewers’ submission of
the Viewer’s Report, such charges shall be due within thirty (30) days
after the Drainage Authority’s receipt of a pay request for such charges
and expenses.
4. AGREEMENT TERM AND TERMINATION.
a. Term. The Viewers agree to furnish the Services commencing on or about
July 14th, 2020 and, unless earlier terminated, this Agreement and the
Services shall continue until the Redetermination of Benefits is complete
and the Final Order, adopting the Viewers’ Report and statements of
benefits and damages, are adopted by the Drainage Authority.
b. Drainage Authority Termination. The Drainage Authority may terminate
this Agreement with the Viewers and Company at any time with or
without cause. Notice of termination shall be given in writing and shall
become effective not earlier than the date of mailing. If the Agreement is
terminated, the Viewers and the Company shall be promptly compensated
for Services performed and expenses incurred through the date of
termination based on the amounts provided for under Section 2 of this
Agreement.
c. Viewers and Company Termination. The Viewers and Company may
terminate this Agreement at any time with or without cause. Notice of
termination shall be given in writing and shall become effective not
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earlier than the date of mailing. If the Agreement is terminated, the
Viewers and the Company shall be promptly compensated for work
performed and expenses incurred through the date of termination based
on the amounts provided for under Section 2 of this Agreement.
5. ADMINISTRATION OF SERVICES
a. Company Coordination. Each Viewer is considered independent. Each
Viewer individually shall at all times be free to exercise initiative,
judgment and discretion as to how to best perform or provide the
Services. However, the individual Viewers acknowledge that they are a
member of a three-viewer team and that their efforts and deliverable
products will be coordinated by the Company. The Company shall not
have direct control over the means and methods employed by individual
Viewers. However, all coordination with the Drainage Authority and its
staff, billing, record keeping, insurance and reporting shall occur through
the Company.
b. Viewing Process. Viewers agree to ensure a unity and consistency of
effort in the viewing process. Viewers agree to provide a consensus
recommendation to the Drainage Authority in the proceedings.
c. Alternate Viewer. In the event the Company, in its discretion determines
that any of the Viewers are no longer able to provide the Services, or, if
the Company otherwise deems it necessary, in its discretion, to have
Robert serve in place of any of the Viewers, the Company may utilize
Robert as a Viewer in place of any of the other Viewers, and the
Drainage Authority authorizes appointment of Robert as a Viewer in
place of any of the other Viewers, who upon the Company’s notification
to the Drainage Authority, shall serve as and will be considered a
“Viewer”, with all rights, responsibilities and obligations of a “Viewer”
under this Agreement’s terms and conditions, as well as those provided
for under Minnesota Statutes Chapter 103E.
d. Drainage Authority Cooperation. Coordination with Drainage Authority
staff is expected throughout the drainage proceedings. The Drainage
Authority and its staff will cooperate with each Viewer to provide
information relevant to the viewing process. The Drainage Authority and
its staff shall not impede the viewing process. All coordination with the
Drainage Authority and its staff shall occur through the lead viewer, who
shall be Bryan Murphy.
6. INDEPENDENT CONTRACTOR STATUS
a. Independent Contractor. At all times and for all purposes hereunder, each
Viewer shall be an independent contractor and is not an employee of the
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Drainage Authority for any purpose. No statement contained in this
Agreement shall be construed so as to find any Viewer to be an employee
of the Drainage Authority, and each Viewer shall not be entitled to any of
the rights, privileges, or benefits of employees of the Drainage Authority
or the County of Le Sueur, including but not limited to, workers’
compensation, health/death benefits, and indemnification for third-party
personal injury/property damage claims.
b. Responsibility for Withholding. Each Viewer 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 each
Viewer or the Company and that it is the sole obligation of each Viewer
and the Company to comply with the applicable provisions of all Federal
and State Tax laws.
c. Hiring of Staff. Each Viewer and the Company is responsible for hiring
sufficient workers to perform the services/duties required by this
Agreement, withholding their taxes, and paying all other employment tax
obligations on their behalf.
7. INSURANCE
a. Required Insurance. The Viewers and Company agree that in order to
protect itself as well as the Drainage Authority, the Viewers and
Company will at all times during the term of this Agreement keep in
force the following insurance:
i. Commercial General Liability. In the amount of $1,000,000 per
occurrence; $2,000,000 general aggregate; or such other liability
amounts as established in Minnesota Statutes 466, as amended.
ii. Professional Liability. In the amount of $1,000,000 per claim and
in the aggregate.
iii. Business Automobile Liability. In the amount of $1,000,000
combined single limit coverage.
iv. Workers’ Compensation Insurance. Workers’ Compensation
Insurance for all its employees in accordance with statutory
requirements of the State of Minnesota, including Coverage B,
Employer’s Liability, at limits of not less than $500,000 bodily
injury by disease each employee, $500,000 bodily injury by
disease policy limit and $500,000 bodily injury each accident.
b. Insurance Policy Requirements. Any policy obtained and maintained
under this clause shall provide that it shall not be cancelled, materially
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changed, or not renewed without thirty (30) days’ prior notice thereof to
the Drainage Authority.
c. Insurance Certificates. Prior to the Effective Date, and as a condition
precedent to this Agreement, the Viewers will furnish the Drainage
Authority with Certificates of Insurance listing the Drainage Authority as
a certificate holder.
8. DATA PRACTICES
a. Work Product. Viewers are performing work for hire, all work product,
background information, investigations, summaries, photographs, maps
or other materials, whether in paper, electronic or other form, produced or
obtained by any Viewer in the course of the drainage proceeding are the
property of the Drainage Authority and shall be provided to the Drainage
Authority upon completion of the Viewers’ Services, however, the
Company may retain copies of such documents and materials for its own
records and reporting and retention requirements.
b. Government Data Practices Act. All data collected, created, received,
maintained, or disseminated for any purposes by the activities of a
Viewer because of this Agreement 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.
9. RECORDS-AVAILABILITY AND RETENTION
a. Inspection. Pursuant to Minnesota Statute §16C.05, subd. 5, the Viewers
agree that the Drainage Authority, the State Auditor, the County Auditors
of Le Sueur County or any of their duly authorized representatives at any
time during normal business hours and as often as they may reasonably
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
Viewers and involve transactions relating to this Agreement.
b. Records Retention. The Company agrees to maintain these records for a
period of six (6) years from the date of termination of this Agreement.
10.MISCELLANEOUS
a. Entire Agreement. It is understood and agreed that the entire Agreement
between the parties is contained herein and that this Agreement
supersedes all oral agreements and negotiations between the parties
relating to the subject matter hereof. All items referred to in this
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Agreement are incorporated or attached and are deemed to be part of this
Agreement.
b. Amendments. 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.
c. Legal Fees and Costs. Should the Drainage Authority, the Viewers, or the
Company have to bring legal action to secure compliance with any
provision of this Agreement, each party shall pay its own attorneys’ fees
and costs in such an action.
d. Subcontracting and Assignment. The Viewers shall not enter into any
subcontract for performance of any Services without the prior written
approval of the Drainage Authority and subject to such conditions and
provisions as the Drainage Authority may deem necessary. The Viewer
shall be responsible for the performance of all subcontractors.
e. Nondiscrimination. During this Agreement’s performance, the Viewers
agree 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 and all applicable federal
and state laws against discrimination.
f. Compliance with Laws. The Viewers and the Company shall abide by all
Federal, State and local laws, statutes, ordinances, rules and regulations
now in effect or hereinafter adopted pertaining to this Agreement.
g. Severability. The provisions of this Agreement shall be deemed severable.
If any part of this Agreement is rendered void, invalid, or unenforceable,
such rendering shall not affect the validity and enforceability of the
remainder of this Agreement unless the part or parts which are void,
invalid or otherwise unenforceable shall substantially impair the value of
the entire Agreement with respect to the parties.
h. Counterparts. This Agreement may be signed in two or more
counterparts, all of which shall constitute a single instrument. Facsimile
and scanned electronic signatures shall be sufficient for all purposes.
Viewers and Company having signed this Agreement, the Drainage Authority of
Le Sueur – Blue Earth JD 1 having duly approved this Agreement on the day
of , 2020, and pursuant to such approval and the proper Drainage
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Authority officials having signed this Agreement, the parties hereto agree to be bound by
the provisions herein set forth.
Le Sueur – Blue Earth Drainage Authority for Le
Sueur -Blue Earth JD 1
By :
Chair/President of the Le Sueur -Blue Earth
JD 1 Drainage Authority
________________________________________________________________________
[Signature Page to Follow]
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Bryan Murphy, Viewer
Shantel Hecht, Viewer
Larry Murphy, Viewer
__________________________________________
Robert Conely, Alternate Viewer
H2Over Viewers, LLC
By Bryan Murphy
Its Authorized Agent
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