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HomeMy WebLinkAboutItem 06.iJuly 30, 2015 Item No. JOINT POWERS AGREEMENT WITH VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION FOR STREAM AND WETLAND RESTORATION PROJECTS WITHIN THE AVONLEA DEVELOPMENT August 3, 2015 City Council Meeting Proposed Action Staff recommends adoption of the following motion: Move to approve Joint Powers Agreement with Vermillion River Watershed Joint Powers Organization for the Middle Creek stream restoration and wetland restoration projects within the Avonlea development. Passage of this motion will establish City and Vermillion River Watershed Joint Powers Organization project responsibilities and costs associated with the restoration projects. Overview The City and the Developer of Avonlea (Mattamy) are coordinating with the Vermillion River Watershed Joint Powers Organization (VRWJPO) to improve the watercourse located in Outlots F, G and I and wetlands located in Outlot K by increasing flood plain storage, re -meandering the stream, enhancing the vegetation and decreasing the overall runoff rate from the Avonlea development. The restoration projects will occur concurrently with the construction of the Avonlea public improvements. Attached is a Joint Powers Agreement (JPA) with the VRWJPO that identifies the project responsibilities and costs. The VRWJPO approved the JPA at their regularly scheduled meeting on July 23, 2015. Primaa Issues to Consider (See attached response) • What benefit will this project provide and how will the project be financed? Supporting Information • Staff analysis of primary issues • Joint Powers Agreement Mac Cafferty Environmental Resources Manager Financial Impact: $0 Budgeted: N/A Source: N/A Related Documents (CIP, ERP, etc.): Good Value for Public Services; Access to a Multitude of Natural Amenities and Community Values: Recreational Opportunities Staff Analysis of Primary Issues • What benefit will this project provide? The current stream and wetland are degraded, unstable and eroding. The proposed restorations will stabilize the area and prove better habitat, reduced long term maintenance cost and improve water quality within the watershed. The stream restoration provides an estimated reduction of 30-50 tons of sediment/year and as well as a 30-50 lbs. of phosphorus/year. The wetland restoration area provides an estimated reduction of 21 tons of sediment/year and 88 lbs. of phosphorus/year. • How will the project be financed? The VRWJPO has a cost-sharing policy providing guidance and opportunities for projects that improve and provide benefit to the Vermillion River Watershed. In a collaborative effort with Mattamy, the City submitted a request for funding assistance; this project qualified for a 100% cost share for the stream restoration and 50% for the wetland restoration. Mattamy is responsible for design, permitting, contract management and 50% of the wetland restoration cost. JOINT POWERS AGREEMENT BETWEEN THE VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION AND THE CITY OF LAKEVILLE FOR THE MIDDLE STREAM RESTORATION PROJECT AND WETLAND RESTORATION PROJECT WITHIN THE MATTAMY HOMES AVONLEA DEVELOPMENT WHEREAS, Minn. Stat. § 471.59 authorizes local governmental units to jointly or cooperatively exercise any power common to the contracting parties; and WHEREAS, the Vermillion River Watershed Joint Powers Organization is a watershed management body consisting of Dakota and Scott Counties (VRWJPO) governed by the Vermillion River Watershed Joint Powers Board (VRWJPB) and is charged with carrying out the duties set forth in Minn. Stat. §§ 10313.211 to 10313.255 and as otherwise provided by law; and WHEREAS, the City of Lakeville (City) is a governmental and political subdivision of the State of Minnesota; and WHEREAS, Mattamy Homes has submitted its Planned Unit Development Master Plan/Standards and Preliminary Plat for residential development (Development) along 470 acres along Cedar Avenue between 179tH and 190th Streets in the City of Lakeville. WHEREAS, Mattamy Homes has been working with both the VRWJPO and the City to meet and possibly go beyond the City and VRWJPO storm -water requirements to establish beneficial and sustainable features in the Development. These strategies include restoration of a wetland and a portion of Middle Creek; and WHEREAS, the VRWJPO and City view wetland restoration as a critical goal for improving and protecting water resources; and WHEREAS, Mattamy Homes has provided the design, planning and permitting necessary for the wetland and stream restoration projects; and WHEREAS, the Vermillion River Watershed Restoration and Protection Strategy (WRAPS) identified stream restoration as a priority for water quality and habitat improvement in the sub -watershed; and WHEREAS, the City of Lakeville desires to both restore the wetland and the stream on the Development site (Project); and WHEREAS, the estimated cost of the stream restoration is $186,456.00. The City is seeking $186,456.00 from the VRWJPO for the stream restoration; and WHEREAS, the estimated cost of the wetland restoration project is $42,937.00. The City is seeking $21,468.50 for the wetland restoration; and NOW, THEREFORE, in consideration of the mutual promises and benefits that the City and the VRWJPO shall derive from this Agreement, the City and the VRWJPO, through the VRWJPB, hereby enter into this Agreement for the purposes stated herein. ARTICLE 1 PURPOSE The purpose of this Agreement is to define the responsibilities and cost sharing obligations of the City and the VRWJPO for the Project. ARTICLE 2 PARTIES The parties to this Agreement are the Vermillion River Watershed Joint Powers Organization (VRWJPO) acting through its Joint Powers Board (VRWJPB) and the City of Lakeville, Minnesota (City). ARTICLE 3 TERM This Agreement shall be effective the date of the signatures of the parties to this Agreement and shall remain in effect until August 31, 2016, or until completion by the parties of their respective obligations under this Agreement, whichever occurs first, unless earlier terminated by law or according to the provisions of this Agreement. ARTICLE 4 COOPERATION The city and the VRWJPO agree to cooperate and use their reasonable efforts to ensure prompt implementation of the various provisions of this Agreement and to, in good faith, undertake resolution of any dispute in an equitable and timely manner. ARTICLE 5 PAYMENT 5.1 The VRWJPO shall cost share with the City in an amount not to exceed Two Hundred Fifteen Thousand Dollars ($215,000.00) for costs directly related to the completion of the Project. 5.2 The VRWJPO shall make payment to the City on a one-time reimbursement basis upon Project completion and verification and acceptance by the VRWJPO that the Project has been completed in accordance with the terms of this Agreement and in accordance with the specifications for the Project, which are attached hereto and incorporated herein as Exhibit 1 and Exhibit 2. 5.3 The VRWJPO may refuse to pay any claim that is not specifically authorized by this Agreement. Payment of a claim shall not preclude the VRWJPO from questioning the propriety of the claim. The VRWJPO reserves the right to offset any overpayment or disallowance of claim by reducing future payments. ARTICLE 6 CITY'S OBLIGATIONS 6.1 AUTHORIZED PURPOSE. The cost share funds provided under the terms of this Agreement may only be used by the City for the payment of costs directly related to the completion of the Project as described in Exhibit 1. 6.2 CONSTRUCTION REQUIREMENTS. The Project shall be constructed in accordance with the approved specifications in Exhibit 1. Any modifications to the specifications require prior approval from VRWJPO staff. 6.3 COSTS. The City is solely responsible for the cost of constructing the Project according to the approved plans and specifications. 6.4 RIGHT OF ENTRY. The City hereby permits the VRWJPO, its employees, duly authorized representatives and agents to enter upon and have rights of ingress and egress over and access at reasonable times to the real property where the Project will be located for the purpose of inspecting the constructions of the Project. 6.5 COMPLIANCE WITH LAWS/STANDARDS. The City shall abide by all federal, state, or local laws, statutes, ordinances, rules, and regulations in constructing the Project, including obtaining all necessary permits to construct the Project. 6.6 PUBLICITY. The City hereby permits the VRWJPO to take and disclose photographs of the Project for use in publications or promotional material or on its website for the purpose of highlighting the VRWJPO's programs. The City shall appropriately acknowledge the funding provided by the VRWJPO in any promotional materials, signage, reports, publications, notices, and presentations related to the Project. This section shall service the expiration or termination of this Agreement. ARTICLE 7 INDEMNIFICATION Each party to this Agreement shall be liable for the acts of its officers, employees or agents and the results thereof to the extent authorized by law and shall not be responsible for the acts of the other party, its officers, employees or agents. The provisions of the Municipal Tort Claims Act, Minn. Stat. ch. 466 and other applicable laws govern liability of the VRWJPO and the City. This section shall survive the expiration or termination of this Agreement. ARTICLE 8 AUTHORIZED REPRESENTATIVES AND LIAISONS 8.1 AUTHORIZED REPRESENTATIVES. The following named persons are designated the authorized representatives of the parties for purposes of this Agreement. These persons have authority to bind the party they represent and to consent to modifications, except that the authorized representative shall have only the authority specifically or generally granted by their respective governing boards. Notice required to be provided pursuant to this Agreement shall be provided to the following named persons and addresses unless otherwise stated in this Agreement, or in a modification of this Agreement: TO THE VRWJPO: Mike Slavik or successor, Chair Vermillion River Watershed Joint Powers Organization 14955 Galaxie Avenue Apple Valley, MN 55124 Telephone: (952) 891-7030 TO THE CITY: Matt Little or successor, Mayor City of Lakeville 20195 Holyoke Avenue Lakeville, MN 55044 Telephone: (952) 985-4410 In addition, notification to the VRWJPO regarding termination of this Agreement by the other party shall be provided to the Office of the Dakota County Attorney, Civil Division, 1560 Highway 55, Hastings, Minnesota 55033. 8.2 LIAISONS. To assist the parties in the day-to-day performance of this Agreement and to ensure compliance and provide ongoing consultation, a liaison shall be designated by the VRWJPO and the City. The VRWJPO and the City shall keep each other continually informed, in writing, of any change in the designated liaison. At the time of execution of this Agreement, the following persons are the designated liaisons: VRWJPO Liaison: Travis Thiel Telephone: (952) 891-7546 Email: travis.thiel@co.dakota.mn.us City Liaison: McKenzie Cafferty Environmental Resources Manager Telephone: (952) 985-4520 Email: mcafferty@lakevillemn.gov ARTICLE 9 MODIFICATIONS Any alterations, variations, modifications, or waivers of the provisions of this Agreement shall only be valid when they have been reduced to writing, approved by the parties respective Boards, and signed by the Authorized Representatives of the VRWJPO and the City. ARTICLE 10 TERMINATION 10.1 IN GENERAL. Either party may terminate this Agreement for cause by giving seven days' written notice or without cause by giving 30 days' written notice, of its intent to terminate, to the other party. Such notice to terminate for cause shall specify the circumstances warranting termination of the Agreement. Cause shall mean a material breach of this Agreement and any supplemental agreements or amendments thereto. This Agreement may also be terminated by the City in the event of a default by the VRWJPO. Notice of Termination shall be made by certified mail or personal delivery to the authorized representative of the other party. Termination of this Agreement shall not discharge any liability, responsibility or right of any party, which arises from the performance of or failure to adequately perform the terms of this Agreement prior to the effective date of termination. 10.2 TERMINATION BY VRWJPO FOR LACK OF FUNDING. Notwithstanding any provision of this Agreement to the contrary, the VRWJPO may immediately terminate this Agreement if it does not obtain funding from the Minnesota Legislature, Minnesota Agencies, or other funding sources, or if it's funding cannot be continued at a level sufficient to allow payment of the amounts due under this Agreement. Written notice of termination sent by the VRWJPO to the City by facsimile is sufficient notice under this Agreement. The VRWJPO is not obligated to pay for any services that are provided after written notice of termination for lack of funding. The VRWJPO will not be assessed any penalty or damages if the Agreement is terminated due to lack of funding. ARTICLE 11 MINNESOTA LAW TO GOVERN This Agreement shall be governed by and construed in accordance with the substantive and procedural laws of the State of Minnesota, without giving effect to the principles of conflict of laws. All proceedings related to this Agreement shall be venued in the County of Dakota, State of Minnesota. This section shall survive the expiration or termination of this Agreement. ARTICLE 12 MERGER This Agreement is the final expression of the agreement of the parties and the complete and exclusive statement of the terms agreed upon and shall supersede all prior negotiations, understandings, or agreements. ARTICLE 13 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 that are void, invalid or otherwise unenforceable shall substantially impair the value of the entire Agreement with respect to either party. ARTICLE 14 GOVERNMENT DATA PRACTICES The City and the VRWJPO must comply with the Minnesota Government data Practices Act, Minn.Stat. ch. 13, as it applies to all data provided, created, collected, received, stored, used, maintained, or disseminated under this Agreement. The civil remedies of Minn.Stat. § 13.08 apply to the release of the data referred to in this clause by either the City or the VRWJPO. ARTICLE 15 DEFAULT: FORCE MAJEURE No party shall be liable to any other party for any loss or damage resulting from a delay or failure to perform due to unforeseeable acts or events outside the defaulting party's reasonable control, providing the defaulting party gives notice to the other party as soon as possible. Acts and events may include acts of God, acts of terrorism, war fire, flood epidemic, acts of civil or military authority, and natural disasters. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date(s) indicated below. CITY OF LAKEVILLE By Matt Little, Mayor Date of Signature: By City Clerk Date of Signature: VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION APPROVED AS TO FORM: By Assistant Dakota County Attorney Date VRW Res. No. KS -15 - Mike Slavik Chair Date of Signature: