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HomeMy WebLinkAboutItem 06.hLakes Date: April 4, 2016 Item No. JOINT POWERS AGREEMENT WITH VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION AND AGREEMENT WITH WENCK ASSOCTATES FOR PROFESSSIONAL SERVICES FOR SOUTH CREEK RESTORATION PROJECT Proposed Action Staff recommends adoption of the following motion: Move to approve Joint Powers Agreement with Vermillion River Watershed Joint Powers Organization and Agreement with Wenck Associates for Professional Services for South Creek Restoration City Project 16-07 Overview The City and Vermillion River Watershed Joint Powers Organization (VRWJPO) are partnering on a restoration project to improve the water quality of South Creek and meet waste load allocation reductions, as required in the City's Minnesota Pollution Control Agency's Municipal Separate Storm Sewer System permit requirements. A storm water basin located southwest of the Holyoke Avenue/2I01h Street intersection is experiencing bank failures and mixing water with South Creek which is. The water mixing is contributing to water quality impairments in South Creek and the Vermillion River. A feasibility study will evaluate options to reduce erosion and sedimentation downstream, lower stream temperatures and increase oxygen levels in South Creek. The feasibility study is anticipated to be completed in 2016. The Joint Powers Agreement and Agreement for Professional Services, establishes City, VRWJPO and Wenck Associates project responsibilities and cost participation. Primary Issues to Consider • The VRWJPO will fund up to $65,000 for a feasibility study and preliminary design. The proposal for professional services from Wenck Associates provides a project scope in three phases. After a feasibility study (Phase 1: $16,300) is completed, staff will review the results with the City Council. A CLOMR/LOMR (Phase 2: $28,000) and Project Design, Bidding and Construction Oversight (Phase 3: $51,000) will be completed only after a final option is selected and authorized by the City Council. The City's funding source for costs that exceed the VRWJPO's funding is the Storm Sewer Trunk Fund. Supporting Information • Joint Powers Agreement (Contract No. C0027755) • Agreement for Professional Services Financial Impact: $95,300 Budgeted: Y® N❑ Source: Storm Sewer Trunk Fund Envision Lakeville Community Values: Good Value for Public Services Notes: Additional funding provided by Vermillion River Watershed Joint Powers Organization Report Completed by: McKenzie Cafferty, Environmental Resources Manager PROFESSIONAL SERVICES AGREEMENT AGREEMENT made this day of2016, by and between the CITY OF LAKEVILLE, a Minnesota municipal corporation ("City") and WENCK ASSOCIATES, INC., a Minnesota business corporation ("Engineer"). IN CONSIDERATION OF THEIR MUTUAL COVENANTS THE PARTIES AGREE AS FOLLOWS: I. SCOPE OF SERVICES. The City retains Engineer to furnish the services set forth in the Contract Documents. The Engineer agrees to perform the services. 2. CONTRACT DOCUMENTS. The following documents shall be referred to as the "Contract Documents," all of which shall be taken together as a whole as the contract between the parties as if they were set verbatim and in full herein: A. This Professional Services Agreement. B. Engineer's proposal dated March 4, 2016 re: Golden Pond Channel Feasibility Study. C. Billing rates. D. Insurance certificate. In the event of conflict among the provisions of the Contract Documents, the order in which they are listed above shall control in resolving any such conflicts with Contract Document "A" has the first priority and Contract Document "D" having the last priority. 3. COMPENSATION. Engineer shall be paid by the City for the services described in Contract Documents on an hourly basis but not to exceed $16,300.00 for Phase one, $28,000.00 for Phase 2, and $51,000.00 for Phase 3. The not to exceed fee shall not be adjusted if the estimated hours to perform a task, the number of estimated required meetings or any other estimate or assumption is exceeded. Engineer shall request payment for services rendered on a monthly basis. The monthly payment applications from Engineer shall identify work completed. 4. ORDER TO PROCEED. Engineer shall not proceed with a Phase until it has received a written order from the City Engineer directing the Engineer to proceed with a Phase. The City may terminate this Agreement upon the completion of any Phase. 5. CHANGE ORDERS. All change orders, regardless of amount, must be approved in advance and in writing by the City. No payment will be due or made for work done in advance of such approval. 186166A 6. DOCUMENTS, The City shall be the owner of all documents, reports, studies, analysis and the like prepared by the Engineer in conjunction with this contract. 7. STANDARD OF CARE. Engineer shall exercise the same degree of care, skill, and diligence in the performance of the services as is ordinarily possessed and exercised by a professional Engineer under similar circumstances. City shall not be responsible for discovering deficiencies in the accuracy of Engineer' services. Engineer shall be responsible for the accuracy of the work and shall promptly make necessary revisions or corrections resulting from errors and omissions on the part of Engineer without additional compensation. S. COMPLIANCE WITH LAWS AND REGULATIONS. In providing services hereunder, Engineer shall abide by all statutes, ordinances, rules and regulations pertaining to the provisions of services to be provided. 9. INDEMNIFICATION. The Engineer shall defend, indemnify and hold harmless the City, its officers, agents, and employees, of and from any and all claims, demands, actions, causes of action, including costs and attorney's fees, arising out of or by reason of the execution or performance of the work or services provided for herein to the comparative extent they are caused by Engineer's negligent acts or omissions or those negligent acts or omissions of persons for whom Engineer is legally responsible 10. COPYRIGHT. Engineer shall defend actions or claims charging infiingement of any copyright or patent by reason of the use or adoption of any designs, drawings or specifications supplied by them, and they shall hold harmless the City from loss or damage resulting therefrom. 11. INSURANCE. The Engineer shall purchase and maintain insurance to protect itself from claims under the Worker's Compensation Act. Before commencing work the Engineer shall provide the City a certificate of insurance evidencing the required insurance coverage in a form acceptable to City. 12. INDEPENDENT CONTRACTOR The City hereby retains the Engineer as an independent contractor upon the terms and conditions set forth in this Agreement. The Engineer is not an employee of the City and is free to contract with other entities as provided herein. Engineer shall be responsible for selecting the means and methods of performing the work. Engineer shall Runish any and all supplies, equipment, and incidentals necessary for Engineer' performance under this Agreement. City and Engineer agree that Engineer shall not at any time or in any manner represent that Engineer or any of Engineer' agents or employees are in any manner agents or employees of the City. Engineer shall be exclusively responsible under this Agreement for Engineer' own FICA payments, workers compensation payments, unemployment compensation payments, withholding amounts, and/or self-employment taxes if any such payments, amounts, or taxes are required to be paid by law or regulation. 13. SUBCONTRACTORS. Engineer shall not enter into subcontracts for services provided under this Agreement without the express written consent of the City. Engineer shall comply with Minnesota Statute § 471.425. Engineer must pay Subcontractor for all undisputed services provided by Subcontractor within ten days of Engineer's receipt of payment from City. Engineer must pay interest of 1.5 percent per month or any part of a month to Subcontractor on any undisputed amount not paid on time to Subcontractor. The minimum monthly interest penalty payment for an unpaid balance of $100 or more is $10. 186166v1 2 14. ASSIGNMENT. Neither party shall assign this Agreement, or any interest arising herein, without the written consent of the other party. 15. WAIVER. Any waiver by either party of a breach of any provisions of this Agreement shall not affect, in any respect, the validity of the remainder of this Agreement. 16. ENTIRE AGREEMENT. The entire agreement of the parties is contained herein. This Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties, unless otherwise provided herein. 17. CONTROLLING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. 18. RECORDS. The Engineer shall maintain complete and accurate records of time and expense involved in the performance of services. 19. MINNESOTA GOVERNMENT DATA PRACTICES ACT. Engineer must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to (1) all data provided by the City pursuant to this Agreement, and (2) all data, created, collected, received, stored, used, maintained, or disseminated by the Engineer pursuant to this Agreement. Engineer is subject to all the provisions of the Minnesota Government Data Practices Act, including but not limited to the civil remedies of Minnesota Statutes Section 13.48, as if they were a government entity. In the event Engineer receives a request to release data, Engineer must immediately notify City. City will give Engineer instructions concerning the release of the data to the requesting party before the data is released. Engineer agree to defend, indemnify, and hold City, its officials, officers, agents, employees, and volunteers harmless from any claims resulting from Engineer' officers', agents', city's, partners', employees', volunteers', assignees' or subcontractors' unlawful disclosure and/or use of protected data. The terms of this paragraph shall survive the cancellation or termination of this Agreement. CITY OF LAKEVILLE WENCK ASSOCIATES IN . BY: BY: Matt Little, Mayor Its Ex eC • i CP r"evI DOV-11 Charlene Friedges, City Clerk 186166v1 WI Its V R W TPO JOINT POWERS AGREEMENT BETWEEN THE VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION AND THE CITY OF LAKEVILLE FOR THE FEASIBILITY STUDY AND DESIGN OF THE STORMWATER BASIN AND CREEK IMPROVEMENT PROJECT 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. §§ 103B 211 to 1036.255 and as otherwise provided by law; and and WHEREAS, the City of Lakeville (City) is a governmental and political subdivision of the State of Minnesota; WHEREAS, the City owns and manages a stormwater basin that is directly adjacent to South Creek; and WHEREAS, the stormwater basin has had bank failures caused by flooding as well as animals burrowing holes through the banks and compromising bank integrity, allowing for water passage from the basin into South Creek; and WHEREAS, the water mixing between South Creek and the stormwater basin has created turbid and warm conditions that contribute to the water quality impairments in South Creek and the Vermillion River; and WHEREAS, addressing the stormwater basin bank failures would help to address the water quality impairments in South Creek and the Vermillion River as identified in the WRAPS as well as meet multiple goals outlined within the Vermillion River Watershed Management Plan; and and WHEREAS, a solution is sought by the City and the VRWJPO to permanently address the bank failures; WHEREAS, a feasibility study (Study) is required to analyze floodplain impacts and develop a construction design and estimated costs for a permanent solution to the bank failures. WHEREAS, the City has requested VRWJPO assistance to conduct the study involving preliminary design for the stormwater basin and creek improvement project (Project); and WHEREAS, the VRWJPO has allocated $65,000 within its 2016 Budget to fund a study for the Project; 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 Study. 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 December 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 Sixty -Five Thousand Dollars ($65,000.00) for costs directly related to the completion of the Study. 5.2 The VRWJPO shall make payment to the City on a one-time reimbursement basis upon completion of the Study and verification and acceptance by the VRWJPO that the Study has been completed in accordance with the terms of this Agreement. 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 Study. 6.2 CONCTRACT FOR SERVICES. The City shall hire any necessary contractors to complete the Study. 6.3 FINAL REPORT. Following the completion of the Study, the City shall provide the VRWJPO with the Study results which provides the findings, conclusions and recommendations of the Study, including without limitation, floodplain modeling results, analysis of precipitation events and resulting water levels, geotechnical stability analysis, conceptual design, pollutant reduction, and a cost estimate. 6.4 COMPLIANCE WITH LAWS/STANDARDS. The City shall abide by all federal, state, or local laws, statutes, ordinances, rules, and regulations in performing the Study. 6.5 PUBLICITY. The City hereby permits the VRWJPO to take and disclose photographs of the Study area 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 Study. This section shall survive 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. 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date(s) indicated below. APPROVED AS TO FORM: /s/ Helen R. Brosnahan 2/16/16 Assistant Dakota County Attorney Date VRW Res. No. KS -16-47 CITY OF LAKEVILLE By Matt Little, Mayor Date of Signature: By City Clerk Date of Signature: VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION By Mike Slavik or successor, Chair Date of Signature: