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HomeMy WebLinkAbout6.j. Joint Powers Agreement with the Vermillion River Watershed Joint Powers Organization for the Homeowners’ Association Irrigation Audit ProgramI:\City Clerk\Agenda Items\Approved Items\6.j. Joint Powers Agreement with the Vermillion River Watershed Joint Powers Organization for the Homeowners’ Association Irrigation Audit Program.docx EXECUTIVE SUMMARY City Council Regular Meeting: August 17, 2021 AGENDA ITEM: Joint Powers Agreement with the Vermillion River Watershed Joint Powers Organization for the Homeowners’ Association Irrigation Audit Program AGENDA SECTION: Consent PREPARED BY: Jane Byron, Storm Water Specialist Brian Erickson, Director of Public Works/City Engineer AGENDA NO. 6.j. ATTACHMENTS: JPA for HOA Irrigation Audit Program APPROVED BY: LJM RECOMMENDED ACTION: Motion to approve a Joint Powers Agreement with VRWJPO for an irrigation audit cost share program for HOAs BACKGROUND Since 2018, the Vermillion River Watershed Joint Powers Organization (VRWJPO) has been operating a program in conjunction with cooperating cities to provide reduced cost irrigation system audits for homeowners’ associations (HOAs) in an effort to conserve water and improve stormwater quality. HOAs that complete the project then qualify for a cost share grant to pay for a portion of improvements recommended in the audit through the following year. Rosemount began participating in the program in 2020; three HOA’s have been selected in Rosemount for the program in 2021. As part of the HOA Irrigation Audit Program, HOAs must apply for consideration and be selected. Due to the popularity of the program HOAs may be turned away. In order to qualify, the HOAs irrigation system must also be at least 10 years old. An application period was open this spring, and the City of Rosemount has already selected three associations for the HOA Irrigation Audit Program for 2021. All three selected HOAs were in the top 10 users for HOAs. One of the selected HOAs was the highest HOA user in 2020, with an estimated water bill of $40,000 for the year and water usage greater than 11MGal. That’s equivalent to 4-5 days of water usage for the entire City based on average use per day. Results for HOA irrigation audits from previous years can be found on this website https://www.vermillionriverwatershed.org/watershed-management/watershed-assessment-studies/ under the Irrigation Efficiency Projects section. 2020 Irrigation audits for this program across all participating communities showed an average water savings of 295,247 gallons per HOA if recommended improvements were implemented, resulting in an average savings of over $1000/yr. for each HOA. The City attorney has reviewed the agreement and determined it to be acceptable. RECOMMENDATION Staff recommends approval of the attached JPA with VRWJPO. DOCSOPEN\RS215\3\732739.v2-7/7/21 JOINT POWERS AGREEMENT FOR IRRIGATION SYSTEM AUDIT PROGRAM BETWEEN THE VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION AND THE CITY OF ROSEMOUNT 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 (the “VRWJPO”), governed by the Vermillion River Watershed Joint Powers Board (the “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 City of Rosemount (the “City”) is a Minnesota municipal corporation and political subdivision of the State of Minnesota; and WHEREAS, many lakes, streams, and wetlands in the VRWJPO rely on groundwater to sustain their volume and support recreation and biological populations; and WHEREAS, residents, businesses, agriculture, and industries rely almost solely on groundwater for their various needs; and WHEREAS, modeling by the Metropolitan Council shows that continued development of groundwater sources to meet future demands will have an adverse effect on resources, and conversely shows benefit to regional aquifers if demand on groundwater is reduced; and WHEREAS, due to population growth, continued investments in infrastructure are needed to reliably supply water; and WHEREAS, maintaining a sustainable water supply is a goal of the VRWJPO’s Watershed Management Plan; and WHEREAS, the City wishes to provide information and promote activities that protect the source water aquifers within the City’s Wellhead Protection Plan; and WHEREAS, the most consistent discretionary water use in urban settings is for lawn maintenance and landscaping; and WHEREAS, in the Twin Cities Metropolitan Area, approximately 20 percent of treated drinking water is used outdoors; and WHEREAS, performing irrigation system audits (the “Audits”) has been identified as an effective means to address VRWJPO and City water supply goals, objectives, and actions; and WHEREAS, targeting townhome and homeowner association (“Association”) irrigation systems is effective due to the centrally-controlled irrigation system used by most Associations where improvements can result in greater water savings; and WHEREAS, the City was awarded a Metropolitan Council’s 2019-2022 Water Efficiency Grant Program (the “Grant”); and WHEREAS, the City has up to $2,000 of Grant funding for the Audits, which requires a local match of 25% of awarded grant funds in an amount totaling $500; and WHEREAS, each Association will be required to pay $50 directly to the VRWJPO for the cost of the Audits; and WHEREAS, the VRWJPO and the City have agreed to each pay $5,675 for the costs of Audits after applying the Associations’ $50 contribution; and WHEREAS, the VRWJPO and the City wish to partner to perform Audits at Associations to reduce groundwater use and reduce association water costs (the “Project”); and WHEREAS, the VRWJPO will hire the contractor necessary to perform the audits; and VRWJPO Contract C0034334 2 DOCSOPEN\RS215\3\732739.v2-7/7/21 WHEREAS, the City will coordinate audit contractor scheduling, reporting, and be the liaison with participant Associations; and WHEREAS, the VRWJPO will serve as the fiscal agent for irrigation system Audits; and WHEREAS, the VRWJPO and City have allocated money within their respective budgets to fund these Audits. NOW, THEREFORE, in consideration of the mutual promises and benefits that the City and the VRWJPO shall derive from this Agreement, the VRWJPO and the City hereby enter into this Agreement for the purposes stated herein. ARTICLE 1 PURPOSE The purpose of this Agreement is to define the Project responsibilities and cost-sharing obligations of the parties. ARTICLE 2 PARTIES The parties to this Agreement are the VRWJPO and the 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, 2022, 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 VRWJPO and the City 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 BY CITY 5.1 The VRWJPO will administer all contracts and act as the paying agent for all payments to any contractors and Associations. 5.2 The City will reimburse the VRWJPO with Project-related activities up to $5,675 from City funding and $2,000 from Grant funding related to the Audits. The VRWJPO’s maximum eligible reimbursement amount from the City is $7,675. 5.3 The VRWJPO will provide up to $5,675 in f unding for Audits. 5.4 Upon confirmation of VRWJPO payment to any contractors or Associations, the City shall reimburse the VRWJPO for Project-related costs. 5.5 The City may refuse to pay claims not specifically authorized by this Agreement. Payment of a claim shall not preclude the City from questioning the propriety of the claim. 5.6 VRWJPO shall repay to the City any overpayment, disallowed claim, or costs not authorized in Section 6.1. ARTICLE 6 GENERAL OBLIGATIONS 6.1 AUTHORIZED PURPOSE. The funds provided under the terms of this Agreement may only be used by the VRWJPO for the payment of costs directly related to the Project. 6.2 COMPLIANCE WITH LAWS/STANDARDS. The VRWJPO shall abide by all federal, state, or local laws, statutes, ordinances, rules, and regulations in implementing the Project, including obtaining all necessary permits to implement the Project. VRWJPO Contract C0034334 3 DOCSOPEN\RS215\3\732739.v2-7/7/21 6.3 PUBLICITY. The parties may take and disclose photographs of Project sites for use in publications or promotional material or on its website to highlight the VRWJPO’s or the City’s programs. Each party shall appropriately acknowledge the funding provided by the other party in any promotional materials, signage, reports, publications, notices, and presentations related to the Project. 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. Each party warrants that they are able to comply with the aforementioned indemnity requirements through an insurance or self-insurance program and that each has minimum coverage consistent with liability limits contained in Minn. Stat. Ch. 466. In the event of any claims or actions filed against either party, nothing in this Agreement shall be construed to allow a claimant to obtain separate judgments or separate liability caps from the individual parties. 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 an amendment 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: Logan Martin or successor, City Administrator City of Rosemount 2875 145th Street West Rosemount, MN 55068 Telephone: (651) 322-2006 In addition, notification to the VRWJPO regarding termination of this Agreement by the City 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: Jane Byron, Storm Water Specialist Telephone: (651) 322-2075 Email: jbyron@ci.rosemount.mn.us 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, or as delegated by the parties’ respective Boards, and signed by the Authorized Representatives, or delegated authority, of the VRWJPO and the City. VRWJPO Contract C0034334 4 DOCSOPEN\RS215\3\732739.v2-7/7/21 ARTICLE 10 TERMINATION 10.1 IN GENERAL. Either party may terminate this Agreement for cause by giving seven days’ prior written notice of its intent to terminate the Agreement to the other party. Either party may terminate this Agreement for any reason by giving 30 days’ prior written notice of its intent to terminate to the other party. Any 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 immediately by either party in the event of a violation of any of the terms of this Agreement. 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 CITY FOR LACK OF FUNDING. Notwithstanding any provision of this Agreement to the contrary, the City 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. The City is not obligated to pay for any services that are provided after written notice of termination for lack of funding. The City will not be assessed any penalty or damages if the Agreement is terminated due to lack of funding. The City will pay for expenses incurred by the VRWJPO up to any notice of termination of work on the Project. 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 any dispute arising under this Agreement shall take place 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 parties must comply with the Minnesota Government Data Practices Act, Minn. Stat. Chapter 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 SURVIVABILITY The provisions of sections 6.3 (Publicity), 7 (Indemnification), and 14 (Government Data Practices) survive the expiration or termination of this Agreement. ARTICLE 16 DEFAULT: FORCE MAJEURE Neither party shall be liable to the 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 outside the defaulting party’s reasonable control may include, but are not limited to, acts of God or nature, acts of terrorism, war, fire, flood, epidemic, acts of civil or military authority, and natural disasters. VRWJPO Contract C0034334 5 DOCSOPEN\RS215\3\732739.v2-7/7/21 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date(s) indicated below. CITY OF ROSEMOUNT By Logan Martin or successor, City Administrator Date of Signature: By Erin Fasbender, City Clerk Date of Signature: VERMILLION RIVER WATERSHED JOINT POWERS ORGANIZATION APPROVED AS TO FORM: By /s/ Helen R. Brosnahan 7/9/21 Mike Slavik or successor, Chair Assistant Dakota County Attorney/Date Date of Signature KS-21-284 VRWJPO Contract C0034334