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HomeMy WebLinkAboutItem 06.k Date: February 5, 2018 Item No. JOINT POWERS AGREEEMENT WITH DAKOTA COUNTY AND VERMILLION RIVER WATERSHED JOINT POWERS AGREEMENT FOR LAKE MARION WATER QUALITY IMPROVEMENT PROJECT Proposed Action Staff recommends adoption of the following motion: Move to approve Joint Powers Agreement for Engineering and Construction with Dakota County and the Vermillion River Watershed Joint Powers Organization for the Lake Marion water quality project and authorize the City Engineer to approve the project plans prior to advertising for bids. Overview The City, County and Vermillion River Watershed Joint Powers Organization (VRWJPO) are partnering on a Lake Marion water quality project. The project involves the construction of a storm water management basin at the southwest corner of Kenwood Trail/CSAH 50 and Jaguar Avenue. The basin design includes an iron-enhanced sand filter to remove phosphorus from storm water prior to entering Lake Marion. Dakota County is the lead agency for the project design and contract administration; construction is programmed for 2018 and will be completed with the County State Aid Highway (CSAH) 50 (Kenwood Trail) Reconstruction project (Dakota County Project 50-19/City Project 14-10). The Joint Powers Agreement (JPA) establishes City, County and VRWJPO project responsibilities and cost participation. Primary Issues to Consider • What is the project financing? Supporting Information • Joint Powers Agreement (County Contract No. GR01045) • Staff analysis of primary issues Financial Impact: $5,000 Budgeted: Y☒ N☐ Source: Multiple Sources Related Documents: Joint Powers Agreement (County Contract No. C0027059-1) Envision Lakeville Community Values: Good Value for Public Services Report Completed by: Zach Johnson, City Engineer Staff Analysis of Primary Issues • What is the project financing? Iron-Enhanced Sand Filter Water Quality Project The estimated project cost is $162,500. The VRWJPO received a $127,500 Clean Water Fund (CWF) grant from the Minnesota Board of Water and Soil Resources that will reimburse the following project-related activities: o $2,500 for CWF project administration/coordination (VRWJPO eligible-only) o $125,000 for construction (County-eligible) The CWF grant has a match requirement to the amount of money received. The match will be shared by the VRWJPO ($30,000) and City/County ($5,000) up to a total maximum CWF grant match amount of $35,000. The City and County, after deducting CWF grant and VRWJPO funding, will share remaining project costs per the County State Aid Highway (CSAH) 50 (Kenwood Trail) Reconstruction JPA (County Contract No. C0027059-1); the City’s estimated net cost for the project is $5,000. Anticipated funding sources are the Trunk Storm Sewer Fund and the Utility Fund - Environmental Resources. Dakota County Contract Nos: VRWJPO GR01044 Lakeville: GR01045 JOINT POWERS AGREEMENT FOR ENGINEERING AND CONSTRUCTION BETWEEN THE COUNTY OF DAKOTA AND THE CITY OF LAKEVILLE AND THE VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION DAKOTA COUNTY PROJECT NO. 50-19 CITY PROJECT NO. 14-10 SYNOPSIS: Dakota County, the City of Lakeville and the Vermillion River Watershed Joint Powers Organization agree to construct a stormwater treatment best management practice incorporating an iron-enhanced sand filter for phosphorus treatment adjacent to County State Aid Highway (CSAH) 50 (Kenwood Trail) with County Project 50-19 and City Project 14-10 in Lakeville, Dakota County. VRWJPO: GR01044 / Lakeville: GR01045 CP 50-19 / City Project 14-10 January 12, 2018 2 THIS AGREEMENT, made and entered into by and between the County of Dakota, referred to in this Agreement as the “County”, the City of Lakeville, referred to in this Agreement as the “City” and the Vermillion River Watershed Joint Powers Organization, referred to in this Agreement as the “VRWJPO” and witnesses the following: WHEREAS, Minn. Stat. § 471.59 authorizes local government units to jointly or cooperatively exercise any power common to the contracting parties; and WHEREAS, the County is a governmental unit and political subdivision of the State of Minnesota; and WHEREAS, the City is a governmental unit and political subdivision of the State of Minnesota; and WHEREAS, the VRWJPO is a watershed management body consisting of Dakota and Scott Counties 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 103B.255 and as otherwise provided by law; and WHEREAS, the County Transportation Department operates and maintains a County State Aid Highway system; and WHEREAS, it is considered mutually desirable for the County and City to construct a four-lane divided highway on County State Aid Highway (CSAH) 50 (Kenwood Trail), defined as the “Project” in existing Contract C0027059-1; and WHEREAS, stormwater runoff from CSAH 50 drains to Lake Marion within the Vermillion River Watershed; and WHEREAS, the Project offers opportunities to treat stormwater runoff from CSAH 50 and adjacent land in the City that contains phosphorus and sediment; and WHEREAS, the VRWJPO identified Lake Marion as a water resource requiring protection from further degradation of water quality due to excess phosphorus concentrations; and WHEREAS, the Project is required to meet VRWJPO and Minnesota Pollution Control Agency standards for stormwater management; and VRWJPO: GR01044 / Lakeville: GR01045 CP 50-19 / City Project 14-10 January 12, 2018 3 WHEREAS, the County, City, and VRWJPO propose a stormwater treatment best management practice (BMP) incorporating an iron-enhanced sand filter for phosphorus treatment to additionally protect Lake Marion above the required standards to be constructed as part of the Project; and WHEREAS, the estimated total cost of the BMP is $162,500; WHEREAS, the VRWJPO applied for, and was awarded a $127,500 Clean Water Fund (CWF) grant from the Minnesota Board of Water and Soil Resources (BWSR) to cover a portion of the costs to construct the BMP; and WHEREAS, the CWF grant has a match requirement equal to 25% of the amount of CWF monies received; and WHEREAS, the County, City and VRWJPO have included the BMP in each of their Capital Improvement Programs and will jointly participate in the costs of engineering, construction and related activities after applying CWF grant monies. NOW, THEREFORE, in consideration of the mutual promises and benefits that the County, the City and the VRWJPO shall derive from this Agreement, the County, the City and the VRWJPO, through the VRWJPB, hereby enter into this Agreement for the purposes stated herein. 1. Purpose. The purpose of this Agreement is to define the responsibilities and cost-sharing obligations of the County, the City, and the VRWJPO for the BMP. 2. Parties. The parties (Parties) to this Agreement are the County, the City and the VRWJPO acting through the VRWJPB. 3. Term. This Agreement will be effective upon execution by duly authorized officials of each governing body and shall continue in effect until all work to be carried out in accordance with this Agreement has been completed. Except for on-going maintenance activities, in no event will this Agreement continue in effect after December 31, 2019, unless the Parties mutually agree to an extension of the BMP term. VRWJPO: GR01044 / Lakeville: GR01045 CP 50-19 / City Project 14-10 January 12, 2018 4 4. Cooperation. The County, 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. 5. Technical and Quality Assurance. The County, the City and the VRWJPO will provide technical and quality assurance for the BMP. Any engineer providing technical or quality assurance for the BMP must be a licensed Professional Engineer in the State of Minnesota. 6. Project Plans and Specifications. The County is the lead agency for design and construction administration of the Project and the BMP, under existing Contract C0027059-1. The County, the City and the VRWJPO shall approve the plans and specifications (BMP Plans) prior to advertising for bids. Upon approval the BMP Plans shall be attached and incorporated as an Exhibit to an Amendment to this Agreement. 7. Payment. The Parties have the following payment obligations and responsibilities under this Agreement. 7.1 The County will administer the contract and act as the paying agent for all payments to the Contractor. Payments to the Contractor will be made as the BMP work progresses and when certified by the County Engineer. 7.2 The CWF grant will reimburse the following BMP-related activities up to the amount listed: $2,500 for administration and coordination of BMP (VRWJPO eligible only); and $125,000 for construction of the BMP (County eligible). The County’s eligible reimbursement is $160,000 (Agreement Maximum). 7.3 The VRWJPO shall make payment to the County for construction costs in increments. Under the terms of the CWF grant, the VRWJPO is to receive funds in three disbursements: (a) 50% after execution of the CWF grant; (b) 40% after the first 50% has been expended and CWF grant reporting requirements are met; and (c) 10% after final CWF grant requirements are met. The VRWJPO will make progress payments to the County on a reimbursement basis, contingent upon the VRWJPO’s receipt of adequate CWF grant disbursements to make County requested payments. Ten percent (10%) of the Agreement Maximum shall be withheld until the VRWJPO has verified that the BMP has been installed in VRWJPO: GR01044 / Lakeville: GR01045 CP 50-19 / City Project 14-10 January 12, 2018 5 accordance with this Agreement and the BMP Plans. All requests for payment shall be supported by itemized BMP receipts and invoices determined by the VRWJPO to be practical and reasonable for completion of the BMP. 7.4 The CWF grant has a match requirement to the amount of CWF monies received totaling $35,000. The match shall be shared in the amount of up to $30,000 by the VRWJPO and $5,000 by the City. 7.5 No payment shall be made until the BMP Plans are approved by the County, the City and the VRWJPO. 7.6 Upon presentation of an itemized claim by one of the Parties to the other, the claim shall be paid for costs incurred under this Agreement within 60 days from the presentation of the claim. If any portion of an itemized claim is questioned by the payer, the remainder of the claim shall be promptly paid, and accompanied by a written explanation of the amounts in question. Payment of any amounts in dispute will be made following good faith negotiation and documentation of actual costs incurred in carrying out the work. 7.7 The VRWJPO may refuse to pay any claims 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 be repaid for any overpayment or disallowed claim. 8. Authorized Purpose. The funds provided under the terms of this Agreement may only be used by the County for the payment of costs directly related to the implementation of the BMP. 9. Construction and Design Failures. Any failure related to construction or design of the BMP shall be addressed in the contracts with the construction firm or professional services firm. 10. Right of Entry. The County hereby permits the City, the VRWJPO, their 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 BMP will be located for the purpose of inspecting the construction of the BMP. 11. Operation and Maintenance. The City and County entered into a Maintenance Agreement for Storm Sewer Systems dated November 4, 2013 (Dakota County Contract # C0025412) VRWJPO: GR01044 / Lakeville: GR01045 CP 50-19 / City Project 14-10 January 12, 2018 6 (“Maintenance Agreement”) which governs maintenance, repair, and replacement duties and costs shared by the County and City for stormwater sewer systems located on or along County Highway right-of-way. Upon acceptance of the BMP by all Parties, the City and County shall be responsible for on-going maintenance and repairs of the BMP upon completion for a minimum of twenty-five (25) years in accordance with the Maintenance Agreement and maintenance and repairs will be appropriately included in the City’s and County’s capital improvement plans or as managed as part of the Municipal Separate Storm Sewer System (MS4) except in the event of a failure due to Acts of God or Force Majeure. 12. Amendments. Any amendments to this Agreement will be effective only after approval by all governing bodies and execution of a written amendment document by duly authorized officials of the Parties. 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 or as delegated by the Parties respective Boards, and signed by the Authorized Representatives, or delegated authority of the County, City and VRWJPO. 13. Change Orders and Supplemental Agreements. Any change orders or supplemental agreements that affect the BMP cost, scope or cost participation must be approved by the liaison of each of the Parties prior to execution of work. For the purposes of this section, the VRWJPO’s liaison is Mark Ryan, its Watershed Engineer; the County’s liaison is Todd Howard, Assistant County Engineer; and the City’s liaison is Zach Johnson, its City Engineer, or their successors. All Parties shall endeavor to provide timely approval of change orders and supplemental agreements so as not to delay construction operations. 14. Final completion. Final completion of the work specified for the BMP in this Agreement must be approved by all Parties. 15. Rules and Regulations. The County shall abide by Minnesota Department of Transportation standard specifications, rules and contract administration procedures. The County shall also abide by all applicable federal, state, and local laws, rules and regulations and will obtain all necessary permits in completing the BMP. 16. 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 VRWJPO: GR01044 / Lakeville: GR01045 CP 50-19 / City Project 14-10 January 12, 2018 7 Municipal Tort Claims Act, Minn. Stat. Ch. 466 and other applicable laws govern liability of the all Parties. This section shall survive the expiration or termination of this Agreement. 17. Government Data Practices. All Parties 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 any Party. 18. Audits. Pursuant to Minnesota Statutes Sec 16 C. 05, Subd. 5, any books, records, documents, and accounting procedures and practices of any Party relevant to this Agreement are subject to examination by the other Parties and either the Legislative Auditor or the State Auditor as appropriate. The Parties agree to maintain these records for a period of six years from the date of performance of all services covered under this Agreement. 19. Survivability. The provisions of sections 9 (Construction and Design Failures), 11 (Operation and Maintenance), 16 (Indemnification) and 17 (Government Data Practices) survive the expiration or termination of this Agreement. 20. 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. 21. 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. 22. Termination. The Parties have the following obligations and responsibilities under this Agreement for initiating termination of the Agreement. 22.1 In General. Any 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 Parties. 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 VRWJPO: GR01044 / Lakeville: GR01045 CP 50-19 / City Project 14-10 January 12, 2018 8 supplemental agreements or amendments thereto. This Agreement may also be terminated by the County in the event of a default by any other Party. Notice of Termination shall be made by certified mail or personal delivery to the Authorized Representative of the other Parties. 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. 22.2 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 other Parties 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. The VRWJPO will pay for expenses incurred by the other Parties up to the effective date of termination. 23. 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. 24. Default: Force Majeure. No Party shall be liable to the other Parties 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 Parties 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. VRWJPO: GR01044 / Lakeville: GR01045 CP 50-19 / City Project 14-10 January 12, 2018 9 25. Authorized Representatives. The authorized representatives for the purpose of the administration of this Agreement are: Mark Krebsbach (or successor) Dakota County Engineer 14955 Galaxie Avenue Apple Valley, MN. 55124 (952) 891-7100 Mike Slavik (or successor) Vermillion River Watershed Joint Powers Board Chair 1590 Highway 55 Hastings, MN. 55033 (651) 438-4418 Zach Johnson (or successor) City Engineer, City of Lakeville 20195 Holyoke Avenue Lakeville, MN 55044 (952) 985-4500 [SIGNATURE PAGE TO FOLLOW] N:\Highway\Agreements\2018\50-19 VRWJPO GR01044 Lakeville GR01045.docx IN WITNESS THEREOF, the parties have caused this Agreement to be executed by their duly authorized officials. VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION APPROVED AS TO FORM: __________________________ By_________________________ Assistant County Attorney Mike Slavik, Board Chair KS-17-96 Date_______________________ Vermillion River Watershed Joint Powers Resolution No. 17-22 Date: March 23, 2017 11 DAKOTA COUNTY RECOMMENDED FOR APPROVAL: By Physical Development Director __________________________ Date________________ County Engineer APPROVED AS TO FORM: Assistant County Attorney Date KS-__________ COUNTY BOARD RESOLUTION No. 17-277 Date: May 23, 2017 12 CITY OF LAKEVILLE RECOMMENDED FOR APPROVAL: By Mayor __________________________ Date________________ City Engineer By City Clerk Date:________________