Loading...
23-004 (01-17) Execution of MCES Agreement for Douglas Dr & TH 55 Underpass RoundaboutRESOLUTION NO. 23-004 RESOLUTION AUTHORIZING EXECUTION OF METROPOLITAN COUNCIL ENVIRONMENTAL SERVICES (MCES) CONSTRUCTION COOPERATIVE AGREEMENT FOR THE DOUGLAS DRIVE 55 UNDERPASS AND MINI ROUNDABOUT PROJECT WHEREAS, The City is finalizing design for the Douglas Drive and Trunk Highway 55 Underpass and Mini Roundabout project; WHEREAS, The Douglas Drive and Trunk Highway 55 Underpass and Mini Roundabout project requires relocation of two existing MCES forcemains in order to construct the project; WHEREAS, the City and MCES agreed to relocate the forcemains as part of the City project using a cooperative construction agreement; WHEREAS, the cooperative construction agreement outlines the construction and cost requirements as well as reimbursement procedures for both the City and MCES; WHEREAS, estimated City costs for the MCES forcemain relocation are approximately $250,000 and estimated total forcemain relocation costs are $2,200,000; and NOW THEREFORE, BE IT RESOLVED, by the City Council of the City of Golden Valley that: 1. Authorizes the execution of the MCES Construction Cooperative Agreement for the Douglas 55 Underpass and Mini Roundabout Project. Adopted by the City Council of Golden Valley, Minnesota this 17th day of January, 2023. Shepard M. Harris, Mayor ATTEST: Theresa Schyma, City Clerk DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 1 COOPERATIVE CONSTRUCTION AGREEMENT FOR CONSTRUCTION OF FORCEMAIN REPLACEMENT IN GOLDEN VALLEY, MN This agreement is made and entered into by and between the Metropolitan Council, a public corporation and political subdivision of the State of Minnesota (“Council”), and the City of Golden Valley, a municipal corporation under the laws of the State of Minnesota (“City”). BACKGROUND RECITALS 1. The City plans to construct a pedestrian underpass across TH 55 at Douglas Drive during the 2023 construction season (“City Project”). 2. The Council desires to upgrade its forcemain at TH55 and Douglas Drive intersection (“Council Project”). 3. Both City and Council desire that the Council Project be constructed in conjunction with the City Project to minimize community impacts and disruption. 4. The Council is not staffed or equipped to construct the Council Project during the 2023 construction season. 5. Therefore, the Council desires to have the City construct the Council Project contemporaneously with the City Project. The parties agree as follows: AGREEMENT I. Purpose of Agreement 1. This agreement describes the responsibilities of each of the Parties for design and construction of the Council Project. 2. The Council appoints the City as its agent to obtain bids, enter into a contract for the construction of the work, and supervise the work performed on the Council Project for compliance with the Council Project construction documents and this agreement. 3. The scope of the Council Project is: The project includes construction of a pedestrian underpass across TH 55 at Douglas Drive. In addition, utilities in the project area or rerouted or DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 2 improved. The Council is working with the City through a cooperative agreement to rehab approximately 600 feet of forcemain (Interceptor 7027-1) and construct an air relief structure. 4. The locations of the Council Project and the City Project are shown on Exhibit A to this agreement. II. Construction Documents 1. Council or its agents, at no cost to the City, will prepare the necessary detailed construction documents for the Council Project (“Council Project Construction Documents”). The Council Project Construction Documents will contain plans and specifications and a schedule for construction of the Council Project suitable for use by proposed contractors in the preparation of their bids. The Council will develop the Council Project Construction Documents using the most current industry standards and practices for forcemains. The Council or its agents have prepared a construction cost estimate for the Council Project, attached as Exhibit B. 2. The Council will have a Registered Professional Engineer licensed in the State of Minnesota prepare and certify the Council Project Construction Documents that will be incorporated into the bidding documents for the City Project. When requested by the City, the Council will make all Council Project Construction Documents available to the City in a timely manner for periodic review. The City’s Engineer or its representative will approve all Council Project Construction Documents before the Council Project Construction Documents are incorporated into the plans for the City Project. 3. The Council will deliver to the City original, reproducible, certified final Council Project Construction Documents on a schedule that will allow the City to timely let and award a construction contract for the City Project. 4. The Council retains ownership of all original Council Project Construction Documents. When the City completes its reproduction of the Council Project Construction Documents, the City will return the original documents to the Council. 5. The City’s Engineer will incorporate the Council Project Construction Documents into the City Project Construction Documents (“Combined Project Construction Documents”) for the City and Council Projects (“Combined Project”). DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 3 III. Easements and Permits 1. The Council gives the City the right to enter onto Council property, and any easements and rights-of-way the Council obtained for construction of the Council Project for the purpose of the City fulfilling this agreement. 2. The City will acquire all permanent and temporary permits, easements and property interests necessary in the City’s name for the Combined Project. City is not acquiring any property on the Council’s behalf. The City will permit the Council to have its forcemains within the easements that the City acquires for the Combined Project and the Council will reimburse the City for the permit as described in Section VII below. 3. As of the date of this agreement, no additional property acquisition is required for construction and installation of the Council Project. The Council is responsible for any land acquisitions outside of the City Project boundaries. 4. The City is responsible for getting all permits associated with construction of the Combined Project, including but not limited to a MNDOT right of way permit, a Hennepin County right of way permit, and an NPDES permit. IV. Procedure for Acceptance of Bids 1. Bidding Procedure. Prior to advertising for bids, the City will allow the Council to review the bidding documents. The City will advertise for bids for the work and construction of the Combined Project, receive and open bids and may, subject to Council’s acceptance of the bid submitted, enter into a construction contract with the successful bidder in accordance with applicable law. The bidding documents will require separate line items for specific Council Project bid items. After opening the bids, the City will give the Council a written tabulation of the bids with the City’s recommendation for selection of the lowest responsible bidder. 2. Council May Accept or Reject of Council Project Bid Amount. a. Council Project Bid Amount is less than 120% of estimate. If the line items for the Council Project in the bid total less than 120% of the construction cost estimate in the final Council Project Construction Documents in Exhibit B excluding contract administration costs), the Council accepts the bid for the Council Project and the City will award the Council Project portion of the bid. DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 4 b. Council Project Bid Amount is 120% or More of Estimate. If the line items for the Council Project in the bid are 120 percent or more of the construction cost estimate in the final Council Project Construction Documents in Exhibit B excluding contract administration costs), the City will award the Council Project portion of the bid, unless the Council gives the City written notice stating that the Council does not agree to be bound by the bid prices for the Council Project. The City will receive the Council’s written notification within 14 days of the date the City provided the Council with the bid tabulation. If the Council does not notify the City within 14 days, the bids for the Council Project will be deemed accepted by the Council. c. Compensation to the City if the Council Does Not Proceed with its Project. If the Council does not accept the bid amount for the Council Project as described in section IV.2.b above, or otherwise decides before the City’s award of the Combined Project not to proceed with the Council Project, the Council will reimburse the City for Council Project-related costs incurred by the City as of the date of termination. A decision by the Council not to construct the Council Project has no bearing on the City’s ability to proceed with the City Project. 3. City decision not to award City Project. If the City decides not to award the City Project, the City will reimburse the Council for Council Project-related costs incurred by the Council as of the date of termination. A decision by the City not to construct the City project has no bearing on the Council’s ability to independently advertise and accept bids for and construct the Council Project. V. Construction and Contract Administration 1. The City will include in the construction contract for the Combined Project, the Council Project Construction Documents, and require that the contractor construct the Council Project according to these Documents. At least 14 days before the contractor begins work on the Council Project, the City will give written notice to the Council that the contractor will begin construction by sending notice to: Council Contact: Ryan Piner Title: Principal Engineer Address: 3565 Kennebec Drive Address: Eagan, MN 55122 Email: Ryan.Piner@metc.state.mn.us DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 5 2. The City will perform and direct all construction supervision, contract administration and inspections required to complete the Combined Project. The City will not interrupt the operation of the forcemain during the construction of the Council Project without the written consent of the Council. 3. The Council’s authorized representative (Jim Sailer, or its designee identified to the City in writing) may observe the work during the construction of the Council Project, but the Council’s authorized representative is not responsible for supervising the Council Project. When observing the work, the Council’s authorized representative will cooperate with the City’s Engineer or designated representative. The Council’s authorized representative will be available to the City at all times during construction of the Council Project. The Council will designate an authorized representative with the authority and experience to make decisions concerning the construction of the Council Project so as not to delay construction of the City Project or the Combined Project. 4. If after installation, the Council determines that any portion of the Council Project was not constructed substantially in accordance with the Council Project Construction Documents, the Council’s authorized representative will inform the City of the deficiency within seven days. The Council’s notice to the City will also explain why the portion of the Council Project does not conform to the Council Project Construction Documents and the actions the Council believes the contractor will take to correct the deficiency. The City will require the contractor to make the corrections to meet the requirements of the Council Project Construction Documents. 5. The Council’s authorized representative will participate in the inspection of the Council Project for substantial completion. Within seven days of any substantial completion inspection, the Council will provide the City the punch list items that need to be addressed before final completion of the Council Project. If the Council does not provide punch list items within seven days, the contractor’s work will be deemed accepted. 6. The City will inform the Council in writing of final completion of construction including the punch list items) of the Council Project. Within seven days of receiving the City’s written notice, the Council will inform the City in writing whether the Council Project conforms to the Council Project Construction Documents. The Council makes the final decision on whether the contractor’s Council Project work conforms to the Council Construction Documents. The Council will accept the work on the Council Project in writing. 7. The Council will participate in the claims process on the Combined Project for the following types of contractor claims: a. project delays relating in any way to site conditions; and DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 6 b. Council requests for changes or modifications to any construction documents (Council Project, City Project, or Combined Project). c. project delays caused by untimely response to the inspection requirements in Article V. The Council will pay the portion of any claim that relates to the acts of the Council regarding the Council Project. VI. Modifications to Construction Documents 1. The City may make minor changes in the Council Project Construction Documents and the Combined Project Construction Documents if the changes are necessary to complete construction. The City may also enter into any change orders or supplemental agreements with the contractor on the Combined Project to incorporate these changes in the Council Project or Combined Project Construction Documents. These changes may result in a change to the Council’s cost participation described in Section VII. 2. The City will give the Council’s Authorized Representative all proposed amendments and material changes to the Council Project Construction Documents. The Council will review the documents and communicate in writing its acceptance or rejection to the City within seven days. The City will not amend or change the Council Project Construction Documents until it receives the Council’s written acceptance. 3. The Council may make changes to the Council Project if all of the following occur: a. The Council gives the City seven days written notice; b. The Council bears the costs of all changes; and c. The change does not increase the cost or delay completion of the City Project. VII. Cost Participation and Payment 1. The Council will reimburse the City for the costs shown in Exhibit B as specified in this Section VII. The Council will reimburse the City for the actual cost of construction for the Council Project, actual costs of construction for portions of the Combined Project as identified in Exhibit B, plus seven percent. The additional seven percent is for the following: DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 7 a. surveying, inspection, and testing for the Council Project; b. other costs associated with the Council or Combined Project including contract administration and land acquisition if applicable, and other administrative expenses associated with the Council or Combined Project. 2. The City, at its sole expense will acquire in its name all permanent and temporary permits, easements, and property interests necessary for the Combined Project. 3. The parties further agree that the Council Project costs are an estimate. The final Council Project construction costs will be based on the unit prices in the City’s construction contract, the final quantities, and any amendments or change orders. 4. After the City awards the Combined Project Construction Contract, the City will prepare a revised Exhibit B and give it to the Council. The revised Exhibit B will update the Council Project costs for construction, land acquisition, and administration based on the actual design costs and contract unit prices. The parties will substitute the revised Exhibit B for the Exhibit B attached to this agreement without any amendment to this agreement. 5. The City will pay its contractor for the contractor’s work on the Council Project. The Council will then pay the City under this section. During construction of the Council Project, the City will submit monthly invoices to the Council. The City’s monthly invoices will include a progress report. The Council will pay the City within 30 days after it receives the invoice. If the Council disputes any portion of an invoice it will give the City notice of the dispute within 14 days after the Council receives the invoice. If the Council disputes any portion of an invoice, the Council will pay the undisputed portion of the invoice within 30 days after receipt of the invoice, and it will pay the remainder of any amount due within 30 days after the dispute is resolved. 6. When the work on the Combined Project is substantially complete, the City will give the Council an updated cost participation breakdown. This cost participation breakdown will show actual construction costs based on the contract unit prices and the units of work the contractor performed. The updated cost participation breakdown will also contain the updated administrative and other costs to be paid to the City by Council. 7. If after subtracting the Council’s payments from the updated cost participation breakdown the Council owes the City money, the City will invoice the Council for that amount. The Council will then pay the City the amount owed within 30 days of receiving the invoice. If the Council has already paid more than the updated cost participation breakdown, the City will refund the Council’s excess amount without interest. DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 8 VIII. Warranties and Maintenance 1. The Council Project bonds and warranties will be issued in the name of the City. Once construction of the Council Project is complete and the Council accepts the Council Project, the Council Project will be under the full control of the Council and all bonds, warranties and guarantees provided by the sureties, construction contractors and subcontractors for the Council Project are the property of Council. If a surety prohibits assignment then the City will require the contractor to ensure that the affected bond or warranty is applied both to the City and the Council. 2. After acceptance of the Council Project by the Council the Council is responsible for operation and maintenance of the Council Project. IX. Liability 1. To the extent authorized by law each party is responsible only for its own acts and the results of its acts. The Council’s and City’s liability is governed by the provisions of Minnesota Statutes, Chapter 466. 2. The Council and City each warrant that they have an insurance or self-insurance program with minimum coverage consistent with the liability limits in Minnesota Statutes, Chapter 466. Nothing in this agreement is a waiver or limitation of any immunity or limitation of liability by the Council or City. 3. The City will ensure that the Combined Project construction contract includes clauses that: a. require the Combined Project contractor to defend, indemnify, and hold harmless the Council, its officers, agents and employees from claims, suits, demands, damages, judgments, costs, interest, expenses (including reasonable attorney’s fees, witness fees and disbursements) arising out of or by reason of the acts or omissions of the contractor, its officers, employees, agents or subcontractors; b. require the Combined Project contractor to provide and maintain insurance in the amounts specified in the attached Exhibit C, which is incorporated into this agreement, and name the Council as additional insured; and c. require the Combined Project contractor to be an independent contractor for the purposes of completing the work on the Council Project. DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 9 X. General Provisions 1. All records kept by the Council and City with respect to the Council Project are subject to examination by representatives of each party. All data collected, created, received, maintained or disseminated for any purpose by the Council and City under this agreement are governed by Minnesota Statutes, Chapter 13 (“Act”), and the Minnesota Rules implementing the Act. 2. The City agrees to comply with all laws applicable to the City relating to nondiscrimination, affirmative action, public purchases, contracting, employment, workers’ compensation, and surety deposits required for construction contracts. Minnesota Statutes, Section 181.59 and any applicable local ordinance relating to civil rights and discrimination and the Affirmative Action Policy statement of the Council is considered a part of this agreement. 3. The employees of the parties, and all other persons engaged by each party will not be considered employees of the other party. Each party is solely responsible for all claims arising from its employees including claims under the Worker’s Compensation Act, the Minnesota Economic Security Law and all third party claim resulting from an act or omission of an employee. 4. If hazardous wastes, pollutants or contaminants as those terms are defined in law exist on the Combined Project site, the City is responsible for any response or remedial action, monitoring or reporting under the law. The City will apply for and have the Council named as a beneficiary in any no association letters, no action/no further action letters and other environmental regulatory assurances for the site. The City will give the Council copies of any Phase I and Phase II environmental investigations, approved Response Action Plans, and environmental assurance letters naming the Council as a beneficiary. This paragraph survives the termination of this agreement. 5. This agreement is the entire agreement between the parties and supersedes all oral agreements and negotiations between the parties relating to this agreement. All exhibits and attachments to this agreement are incorporated into the agreement. If there is a conflict between the terms of this agreement and any of the exhibits the agreement governs. 6. The provisions of this agreement are severable. If a court finds any part of this agreement void, invalid, or unenforceable, it will not affect the validity and enforceability of the remainder of this agreement. A waiver by a party of any part of this agreement is not a waiver of any other part of the agreement or of a future breach of the agreement. 7. Any modifications to this agreement will be in writing as a formal amendment. DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 10 8. This agreement is binding upon and for the benefit of the parties and their successors and assigns. This agreement is not intended to benefit any third-party. 9. Except as otherwise provided for in this agreement, the agreement may be terminated by the mutual agreement of the parties. 10. If a force majeure event occurs, neither party is responsible for a failure to perform or a delay in performance due to the force majeure event. A force majeure event is an event beyond a party’s reasonable control, such as unusually severe weather, fire, floods, other acts of God, labor disputes, acts of war or terrorism, or public health emergencies. 11. Under Minnesota Statutes, Section 16C.05, subdivision 5, the Parties agree that the books, records, documents, and accounting procedures and practices relevant to this agreement are subject to examination by either Party and the state auditor or legislative auditor, as appropriate, for at least six years from the end of this agreement. 12. A party will send all notices or demands under this agreement either by: a. certified mail; b. e-mail, as long as the recipient acknowledges receipt by e-mail or otherwise in writing; or c. delivered in person to the other party addressed to the following authorized representatives: Ryan Piner Metropolitan Council Environmental Services 3565 Kennebec Drive Eagan, MN 55122 Jeff Oliver City of Golden Valley 7800 Golden Valley Road Golden Valley, MN 55427 13. The parties will use a dispute resolution process for any unresolved dispute between the parties before exercising any legal remedies. The dispute resolution process is a three level dispute resolution ladder that escalates a dispute from the project management level through the executive management level. At each level of the dispute resolution process, the Parties’ representatives will meet and explore resolution until either party determines that effective resolution is not possible at the current level, and notifies the other party that the process is elevated to the next level. The parties designate the following dispute resolution representatives: DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 11 City Representative Metropolitan Council Representative Level 1 City Engineer Manager Level 2 Community Development Director Assistant General Manager Level 3 City Manager General Manager, Environmental Services The parties will complete the dispute resolution process in good faith before resorting to any other legal process or remedy. 14. The Council and the City are each authorized to enter into this agreement pursuant to Metropolitan Council Action No. _______ approved on _____________, and City Resolution No. 23-004, approved on January 17, 2023. DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 12 15. This agreement will be effective when all parties have signed it. The date of this agreement will be the date this agreement is signed by the last party to sign it (as indicated by the date associated with that party’s signature). Each party is signing this agreement on the date stated below that party’s signature. METROPOLITAN COUNCIL, A public corporation and political subdivision of the State of Minnesota By: Name, Title Date: CITY OF GOLDEN VALLEY A municipal corporation of the State of Minnesota By: Shepard M. Harris, Mayor Date: January 17, 2023 and Timothy J. Cruikshank, City Manager Date: January 17, 2023 DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 13 LIST OF EXHIBITS Exhibit A - City Project and Metropolitan Council Project Locations Exhibit B - Metropolitan Council Project Construction Costs Estimates DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 14 Exhibit A City Project and Metropolitan Council Project Locations DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D Met. Council No. 22I045 15 Exhibit B Council Project Construction Costs Estimates DocuSign Envelope ID: 676C81D0-769E-418D-8481-719EFCE7473D