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HomeMy WebLinkAbout9B-TH13/150th Cooperative Agreement O� pxlo1P t~ U 4646 Dakota Street SE Prior Lake,NIN 55372 +LrJNNESO(P CITY COUNCIL AGENDA REPORT MEETING DATE: OCTOBER 13, 2014 AGENDA#: 9B PREPARED BY: LARRY POPPLER, CITY ENGINEER/ INSPECTIONS DIRECTOR PRESENTED BY: LARRY POPPLER AGENDA ITEM: CONSIDER APPROVAL OF A RESOLUTION APPROVING A COOPERATIVE AGREEMENT WITH THE CITY OF SAVAGE FOR THE TH 13/1 60TH IMPROVE- MENT PROJECT DISCUSSION: Introduction The purpose of this agenda item is to consider approval of a cooperative agreement with the City of Savage regarding cost for the 150th Street and TH 13 Improvement Project. History At the September 16th, City Council meeting, the City Council entered into a cost sharing agreement with the City of Savage for the TH 13/1501h Improvement Project for concept 5B. Current Circumstances While the cost sharing agreement defined project cost distribution, it did not dis- cuss project delivery details. The cooperative agreement, drafted by the city attor- ney, defines roles and responsibilities for each City for the project. It outlines bid- ding, contract administration, further discusses project costs, property acquisition, and other miscellaneous items. Details can be found in the attached agreement. ISSUES The timelines for delivery of the TH 13/150th Street project are tight. Contracts for wetland delineation, surveying, and soil borings are in the process of being ap- proved by the City of Savage. By defining roles and responsibilities of each City, the project delivery process can run smoothly. The agreement also discusses bid rejection, if bids come in exceedingly high. FINANCIAL The estimated cost for option 56 is $6,502,000. The MNDOT contribution is pro- IMPACT: posed to be $2,102,000. Savage's portion would be $1,771,500 (computed as half the remaining cost for option 6D). The City of Prior Lake cost for this project is estimated at$2.83 Million based on the cost allocation formula reflected in the cost sharing agreement and including the $200,000 in estimated utility updates. ALTERNATIVES: 1. Approve a Resolution Approving a Cooperative Agreement with the City of Sav- age for the TH 13 and 150th Street Improvement Project. 2. Deny this item for a specific reason and provide staff with direction. 3. Table this item until some date in the future. RECOMMENDED A motion and a second for Alternative#1 MOTION: U 4646 Dakota Street SE IrnvEso'0P Prior Lake,MN 55372 RESOLUTION 14-xxx A RESOLUTION APPROVING A COOPERATIVE AGREEMENT WITH THE CITY OF SAVAGE FOR THE HIGHWAY 131150TH STREET IMPROVEMENTS Motion By: Second By: WHEREAS, improving the safety of the Trunk Highway 13/150th Street intersection is a high priority for the cities of Prior Lake and Savage and the Minnesota Department of Transportation; and WHEREAS, the 2014-2018 Capital Improvement Program identifies the improvement of the Trunk Highway 13/150th Street intersection in 2015; and WHEREAS, the City of Savage and the Minnesota Department of Transportation have also programmed the improvement of the Trunk Highway 13/150th Street intersection into their capital improvement plans for construction in 2015; and WHEREAS, Short Elliot and Hendrickson ("SEH") prepared a Preliminary Design Study Report dated February 12, 2010. The cost of the study was shared equally by the cities of Savage and Prior Lake; and WHEREAS, SEH prepared the TH 13 at 150th Street Area Alternatives Analysis dated August 27, 2014; and WHEREAS, Both Cities have agreed to proceed with concept 513 and have entered into a cost sharing agreement for the project on September 16th, 2014; and WHEREAS, It is necessary to define the roles and responsibilities for project delivery by entering into a Cooperative Agreement. NOW THEREFORE, BE IT HEREBY RESOLVED BY THE CITY COUNCIL OF PRIOR LAKE, MINNESOTA as follows: 1. The recital set forth above are incorporated herein. 2. The City Council hereby approves the Cooperative Agreement between the City of Prior Lake and the City of Savage regarding Highway 13/150th Street Improvements. 3. The City Council hereby authorizes the Mayor and City Manager to execute the attached Cooperative Agreement on behalf of the City of Prior Lake. PASSED AND ADOPTED THIS 13th DAY OF OCTOBER, 2014. VOTE Hedberg Keeney McGuire Morton Soukup Aye ❑ ❑ ❑ ❑ ❑ Nay ❑ ❑ ❑ ❑ ❑ Absent ❑ ❑ ❑ ❑ ❑ Abstain ❑ ❑ ❑ ❑ ❑ Frank Boyles, City Manager http://sp1ash/teams/am/0ctober4 2010/10 13 2014/TH 13 and 150th Coop.docx 2 COOPERATIVE AGREEMENT BETWEEN THE CITY OF PRIOR LAKE AND THE CITY OF SAVAGE FOR THE HIGHWAY 13/150TH STREET PROJECT THIS COOPERATIVE AGREEMENT ("Agreement")is entered into between the CITY OF PRIOR LAKE,a Minnesota municipal corporation(hereinafter referred to as "Prior Lake") and the CITY OF SAVAGE, a Minnesota municipal corporation (hereinafter referred to as "Savage"), with the parties collectively hereinafter referred to as the "Cities". WHEREAS, Savage and Prior Lake are working cooperatively to design and construct improvements to Highway 13 at the Trunk Highway 13/150th Street intersection(the "Project"); WHEREAS, the Minnesota Department of Transportation ("MnDOT") is providing funding in the amount of$2,102,000.00 for the Project; WHEREAS, several alternatives for the improvements have been prepared and presented to the Cities by their consultant Short Elliot Hendrickson ("SEH") and the Cities have agreed to proceed with alternative 513; NOW,THEREFORE,in consideration of their mutual covenants the Cities agree as follows: ARTICLE 1: BIDDING 1. Bid Package. Savage shall prepare a request for proposals to provided professional services for the final design,and a bid package to request bids for construction of the Project. The bid package shall utilize SEH's preliminary design alternative 5B. 2. Utili . Work. In conjunction with the Project each City has utility work which must be completed. Each City is responsible for the design and costs of its own utility work. Savage shall incorporate into the proposal and bid documents for the Project separate itemized schedules for the utility work for each City. The Cities shall work cooperatively to determine which utility work is part of the Project and which utility work should be scheduled separately. Savage shall ensure that the consultants and contractors hired itemize and bill the utility work separately to each City. 3. Advertising and Opening. Savage shall advertise for, receive, and open the bids and proposals. Savage shall, upon opening of the bids and proposals, provide a copy of all bids and proposals to Prior Lake. The request for bids and proposals shall provide that any contract entered into with regards to the Project can be terminated upon loss of funding from MnDOT or upon the failure for any reason to acquire such property as is necessary to construct the Project. 4. Acceptance. In order for a contract to be awarded the bid must be accepted by both Cities in writing. 5. Rejection. If both Cities do not accept the bid in writing at the next regularly scheduled City Council meeting of each parry following receipt of a recommendation from their respective City Engineer, all bids shall be rejected. Upon rejection of all bids, Savage shall invoice Prior Lake for its 1 share of the costs incurred for the bid preparation and advertisement,which invoice Prior Lake shall pay within 30 days of receipt,and upon payment neither City shall have any further obligations under this Agreement. ARTICLE 2: CONTRACT AND ADMINISTRATION 1. Contract.Upon acceptance of an approved bid in writing by both Cities, Savage shall prepare contract documents and enter into a contract with the approved bidder. 2. Administration. Savage shall have overall authority to administer the contract and administer the construction of the contract work for the Project. Savage shall abide by Minnesota Department of Transportation Standard Specifications rules and contract administration procedures. All documents and records shall be available to Prior Lake for review upon request. 3. Paving Agent. Savage will act as the paying agent for all payments to the contractor. Payments will be made as the Project work progresses and when certified by the Savage Public Works Director. Savage, in turn, will bill Prior Lake for the Project costs upon completion of the Project or at other times deemed appropriate by Savage. Upon presentation of an itemized claim by Savage to Prior Lake,Prior Lake shall reimburse Savage for its share of the costs incurred under this agreement within 30 days from the presentation of the claim. If any portion of an itemized claim is questioned by Prior Lake, 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. 4. Final Design. A project management team comprised of one representative each from Savage,Prior Lake and MnDOT shall be established to make decisions relating to the final design of the Project. The final design of the Project must be approved by both City Councils. The Cities shall work cooperatively to ensure that such approval can be obtained within the Project timeline. 5. Change Orders. Savage shall provide Prior Lake with written notice of all change orders. If the amount of the change order exceeds the contingency for change orders established at the award of the contract Savage shall not approve the change order absent written approval from Prior Lake. 6. Authorized Agent. All reviews, notices and approvals shall be directed toward the Cities authorized agents. Savage's Authorized Agent for the purpose of the administration of this Agreement is John Powell, Public Works Director/City Engineer or his successor. His current address and phone number are Savage Public Works Building, 13770 Dakota Avenue, Savage, MN 55378, (952) 882-2672. Prior Lake's Authorized Agent for the purpose of the administration of this Agreement is Larry Poppler, City Engineer or his successor. His current address and phone number are Prior Lake City Hall,4646 Dakota Street SE, Prior Lake, MN 55372, (952)447-9832. Any change in name, address, or telephone shall be noticed to the other City. 2 ARTICLE 3: PROJECT COSTS 1. Estimated Cost. The cost of the Project, as estimated by SEH, is$6,502,000. 2. MnDOT Contribution. MnDOT has indicated in writing its intent to contribute $2,102,000 toward the Project provided the parties meet the deadlines set forth in that certain letter from MnDOT dated September 22, 2014. MnDOT's contribution shall be applied to the cost of the Project prior to any division of costs between the Cities. If MnDOT does not approve the contribution, Savage shall invoice Prior Lake for its share of the costs incurred up to the point MnDOT notifies the Cities that the funding is not going to be provided,which invoice Prior Lake shall pay within 30 days of receipt, and upon payment neither City shall have any further obligations under this Agreement. 3. Prior Lake Contribution. Prior Lake has agreed to pay$857,000 for the difference in cost of Alternative 5B and all acquisition costs in excess of$862,000 as set forth in the document entitled "Cost Sharing Agreement"between the Cities dated September 16,2014. 4. All Other Costs. All Project costs not specifically discussed in this Article shall be divided equally between the Cities. ARTICLE 4: ACQUISITION 1. Savage shall acquire all property necessary for the Project. Costs of such acquisition shall be divided as set forth in Article 3. 2. Savage shall obtain written approval from Prior Lake prior to acquisition of any property if the acquisition costs for the Project exceed 110% of the estimate. If Prior Lake fails to approve any such acquisition within 10 business days of notice from Savage of the amount of an acquisition, the contract for construction shall be cancelled. 3. The Cities will work cooperative to place title to the acquired property in the name of the City in which the property is located. ARTICLE 5: POST PROJECT 1. Upon completion of the Project each City shall own and maintain the portion of the Project located within its corporate boundaries. The maintenance of Trunk Highway 13, including but not limited to maintenance of the signal, the driving surface and turn lanes, and striping shall be the responsibility of MnDOT. ARTICLE 6: MISCELLANEOUS 1. Insurance. Each City shall maintain general liability and automobile liability coverage protecting itself, its officers, agents, employees and duly authorized volunteers against any usual and customary public liability claims to the limits prescribed under Minn. Stat. Sec. 466.04 and Workers' Compensation in accordance with the Minnesota statutory requirements. 3 2. Indemnification. Savage agrees to defend, indemnify, and hold harmless Prior Lake against any and all claims, liability, loss, damage, or expense arising under the provisions of this Agreement for which Savage is responsible, including future operation and maintenance of facilities owned by Savage and caused by or resulting from negligent acts or omissions of Savage and/or those of Savage employees or agents. Prior Lake agrees to defend, indemnify, and hold harmless Savage against any and all claims, liability, loss, damage, or expense arising under the provisions of this Agreement for which Prior Lake is responsible, including future operation and maintenance of facilities owned by Prior Lake and caused by or resulting from negligent acts or omissions of Prior Lake and/or those of Prior Lake employees or agents. Under no circumstances, however, shall a City be required to pay on behalf of itself and the other City any amounts in excess of the limits on liability established in Minnesota Statutes Chapter 466 applicable to any one City. The limits of liability for both Cities may not be added together to determine the maximum amount of liability for either City. The intent of this paragraph is to impose on each City a limited duty to defend and indemnify each other subject to the limits of liability under Minnesota Statutes Chapter 466. The purpose of creating this duty to defend and indemnify is to simplify the defense of claims by eliminating conflicts among the Cities and to permit liability claims against both Cities from a single occurrence to be defended by a single attorney. 3. Employees. Any and all persons engaged in the work to be performed by one City to this Agreement shall not be considered employees of the other City for any purpose, including Worker's Compensation, or any and all claims that may or might arise out of the employment context on behalf of the employees while so engaged. Any and all claims made by any third party as a consequence of any act or omission on the part of one City's employees while so engaged on any of the work contemplated herein shall not be the obligation or responsibility of the other City. 4. Audits. Pursuant to Minnesota Statutes § 16C.05, Subd. 5,any books,records,documents, and accounting procedures and practices of Prior Lake and Savage relevant to this Agreement are subject to examination by Prior Lake, Savage, and either the Legislative Auditor or the State Auditor as appropriate. Prior Lake and Savage agree to maintain these records for a period of six years from the date of performance of all services covered under this Agreement. 5. Data Practices Act. Both Cities shall at all times abide by the Minnesota Government Data Practices Act, Minn. Stat. Section 13.01, et seq. 6. Remedies/Damages. In the event of a breach of the Agreement,the Cities have such rights and remedies as it may have at law or equity for any breach of this Agreement including specific performance provided however neither City shall be entitled to recover punitive, indirect, special, consequential or incidental damages. The prevailing City in any litigation or arbitration shall be entitle to an award of its reasonable attorney's fees. 7. Entire Agreement The entire agreement of the Cities is contained herein. This Agreement supersedes all oral agreements and negotiations between the Cities relating to the subject matter hereof as well as any previous agreements presently in effect between the Cities relating to the subject matter hereof. Any alterations,amendments,deletions, or waivers of the provisions of this Contract shall be valid only when expressed in writing and duly signed by the Cities, unless otherwise provided herein. 4 8. Dispute Resolution. a. Mediation. Each dispute, claim or controversy arising from or related to this Agreement or the relationships which result from this Agreement shall be subject to mediation as a condition precedent to initiating arbitration by either party. Unless the parties agree otherwise, the mediation shall be in accordance with the Construction Industry Rules (including a mediation alternative) of the American Arbitration Association then currently in effect. A request for mediation shall be filed in writing with the American Arbitration Association and the other party. No arbitration action may be instituted for a period of 90 days from the filing of the request for mediation unless a longer period of time is provided by agreement of the parties. Cost of mediation shall be shared equally between the parties. Mediation shall be held in either the City of Prior Lake or Savage unless another location is mutually agreed upon by the parties. The parties shall memorialize any agreement resulting from the mediation in a mediated settlement agreement, which agreement shall be enforceable as a settlement in any court having jurisdiction thereof. b. Arbitration. Subject to the requirement for mediation stated above, all disputes, claims or controversies arising from or relating to this Agreement shall be resolved by binding arbitration in accordance with the Construction Industry Rules (including a mediation alternative) of the American Arbitration Association then in effect as a condition precedent to initiating legal or equitable actions by either party. A demand for arbitration shall be filed in writing with the other party to this Agreement and the American Arbitration Association. No arbitration award shall include exemplary or punitive damages. The authority of the arbitrator shall be limited to deciding matters pertaining to or arising out of the performance of obligations required by the Agreement of either party. In so doing, the arbitrator shall apply the principles of law of the State of Minnesota. One arbitrator shall be picked under the applicable rules to decide the matter. 9. Severability. The provisions of this Agreement are severable. If any portion hereof is, for any reason, held by a court of competent jurisdiction to be contrary to law, such decision shall not affect the remaining provisions of this Agreement. 10. Governing Law. This Agreement shall be controlled by the laws of the State of Minnesota. 11. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered an original. IN WITNESS WHEREOF,this Agreement has been executed as of the day and year first above written. [Remainder of Page Intentionally Left Blank. Signature Pages Follow.] 5 CITY OF PRIOR LAKE BY: Kenneth L. Hedberg, Mayor BY: Frank Boyles, City Manager 6 CITY OF SAVAGE By: Janet Williams, Mayor By: Barry Stock, City Administrator 7