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HomeMy WebLinkAbout6.f. Joint Powers Agreement with Dakota County for Cost Contribution for the Rosemount Greenway - Bella Vista Segment EXECUTIVE SUMMARY City Council Regular Meeting: April 5, 2022 AGENDA ITEM: Joint Powers Agreement with Dakota County for Cost Contribution for the AGENDA SECTION: Rosemount Greenway - Bella Vista Consent Segment PREPARED BY: Dan Schultz, Parks & Recreation Director AGENDA NO. 6.x. ATTACHMENTS: Trail Location and Joint Powers APPROVED BY: LJM Agreement RECOMMENDED ACTION: Motion to approve entering into a Joint Powers Agreement with Dakota County for a Cost Contribution for the Rosemount Greenway - Bella Vista Segment. BACKGROUND The Parks and Recreation Department is requesting the City Council consider entering into a Joint Powers Agreement with Dakota County to receive reimbursement for the cost of the construction of the Bella Vista Regional Greenway Trail. The City has designed the multi-purpose trail and put the trail out to bid. The estimated cost of the trail project is $489,828. The County would cover 100% of the construction cost up to $515,000. The City has covered the cost of project design and will be responsible for delivery of the trail project. RECOMMENDATION Staff is recommending the City Council approve entering into a Joint Powers Agreement with Dakota County for a Cost Contribution for the Rosemount Greenway - Bella Vista Segment. Bella Vista Greenway Trail Location 2 Dakota County Contract C____________ JOINT POWERS AGREEMENT BETWEEN DAKOTA COUNTY AND THE CITY OF ROSEMOUNT FOR COST CONTRIBUTION FOR CONSTRUCTION OF ROSEMOUNT GREENWAY: BELLA VISTA SEGMENT WHEREAS, Minn. Stat. § 471.59 authorizes local governmental units to jointly or cooperatively exercise any power common to the contracting parties; and WHEREAS, Dakota County (“County”) is a political subdivision of the State of Minnesota; and WHEREAS, the City of Rosemount (“City”) is a Minnesota municipal corporation; and WHEREAS, by resolution 12-359, the County authorized the adoption of the Rosemount Greenway Master Plan (“Master Plan”); and WHEREAS, the Bella Vista Segment will complete three-quarters of a mile of the Rosemount Greenway through open space created by the Bella Vista housing development (the “Project”); and WHEREAS, the Project is currently in final design with anticipated construction starting Summer 2022; and WHEREAS, the City has contributed $102,814.00 toward final design, wetland mitigation, and pipeline permitting; and WHEREAS, the estimated cost of constructing the Project is $489,828.00; and WHEREAS, by resolution 22-115, the County authorized expenditure of $489,828.00, plus a five (5) percent contingency of $24,491.00, toward construction of the Project, for a total cost not to exceed $514,319.00; and WHEREAS, the City agrees to manage construction administration and contribute $57,304.00 towards same; and WHEREAS, the trail segment will be maintained by the City during the term of this Agreement or until execution of a future supplemental maintenance agreement contemplated by the parties to address future ongoing maintenance responsibilities whichever occurs first; and NOW, THEREFORE, in consideration of the mutual promises and benefits herein, the County and the City hereby enter into this Agreement for the construction of the Project, as described in Exhibit 1. ARTICLE 1 PURPOSE 2 The purpose of this Agreement is to define the responsibilities and obligations of the County and the City for costs and duties related to the construction of the Project. The City shall use all funds provided by the County for the sole purposes set forth in this Agreement. ARTICLE 2 TERM This Agreement shall be effective on April 5, 2022, regardless of the signature of the last party to sign this Agreement, and expires on December 31, 2023, or upon completion by the Parties of their respective obligations under this Agreement, whichever occurs first, unless amended in writing or earlier terminated by law or according to the provisions of this Agreement. ARTICLE 3 COOPERATION 3.l Duty of Good Faith. The Parties 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 disputes in an equitable and timely manner. 3.2 Assignment. Neither the City nor the County may assign nor transfer any rights, duties, interests, or obligations under this Agreement without the prior consent of the other p arty and a fully executed assignment agreement, executed by the County and the City. ARTICLE 4 COUNTY OBLIGATIONS 4.1 Contribution Amount. The County shall reimburse the City an amount not to exceed Five Hundred and Fourteen Thousand, Three Hundred and Nineteen and 00/100 Dollars ($514,319.00) ("Agreement Maximum") for actual construction costs incurred for the Project. 4.2 Reimbursement by County. After this Agreement has been executed by both parties, the City may claim reimbursement for costs in accordance with the Agreement. A. Procedure. The County will reimburse the City within forty-five (45) calendar days of the City's submission of invoices to the County for actual construction costs of the Project. Invoices must be submitted in the form acceptable to the County. All requests for reimbursement must be submitted by the City by November 15, 2023. The City must certify that the requested reimbursements are accurate, appropriate, and that such expenditures have not been otherwise reimbursed. If the invoice is incorrect, defective, or otherwise improper, the County will notify the City in writing within ten (10) calendar days of receiving the incorrect invoice. Upon receiving the corrected invoice from the City, the County will make payment within forty-five (45) calendar days. 3 B. Net Increases in Actual Construction Costs. Any net increase in the estimated or actual construction costs subsequent to this Agreement shall not affect or increase the County's contribution amount. The County's contribution amount shall not exceed the Agreement Maximum set forth in Section 4.1, regardless of net increases in the estimated or actual construction costs. C. Reductions in Actual Construction Costs. Any net reduction in actual construction costs shall reduce the County's contribution so that for every dollar reduction in actual construction costs, the County's contribution for the actual construction costs shall be reduced by the same amount. City shall provide County with all documentation evidencing reduction in Project construction costs. D. Righ t to Refuse Payment. The County may refuse to pay any claim from the City that is not specifically authorized by this Agreement. Payment of a claim shall not preclude the County from questioning the propriety of the claim. The County reserves the right to offset any overpayment or disallowance of claim by reducing future payments. E. Change Orders and Supplemental Agreements. Any change orders or supplemental agreements that affect the Project cost, scope or cost participation must be approved by the Authorized Representatives of both parties prior to the execution of the work. Both parties shall endeavor to provide timely approval of change orders and supplemental agreements so as not to delay completion of the Project. F. Final Payment. The County shall withhold the final reimbursement payment until the County documents its acceptance of final construction of the Project and provides notice to the City. 4.3 Project Management Team. County staff will participate on the Project Management Team coordinated by the City. 4.4 Acknowledgment. The County shall appropriately acknowledge the assistance provided by the City pursuant to this Agreement in any promotional materials, signage, publications, notices, and presentations concerning the Project. ARTICLE 5 CITY OBLIGATIONS 5.1 Project Management. The City, or its agents or contractors, shall provide construction management services for the Project, and shall prepare bid documents for the Project. The City will lead the construction of the Project and shall be responsible for awarding contracts for the Project. The City will provide and be 4 responsible for project delivery, management, and inspection of the work of the Project, assuring it meets all federal, state, or local laws, statutes, ordinances, rules and regulations related to the Project.. The County will have no actual or implied legal responsibility to the City relating to the above obligations and responsibilities of the Project. 5.2 Acknowledgement. The City shall appropriately acknowledge the funding assistance provided by the County pursuant to this Agreement in any promotional materials, signage, reports, publications, notices and presentations concerning the Project. 5.3 Compliance with Laws/Standard. The City shall abide by all federal, state, or local laws, statutes, ordinances, rules and regulations related to the work anticipated by this Project. The City or its contractor, if any, is responsible for obtaining and complying with all federal, state, or local permits, codes, licenses, and rights and authorizations necessary for performing the work. 5.4 Use of Contractors. The City may engage contractors to perform the activities funded pursuant to this Agreement. However, the City retains primary responsibility to the County for performance of the activities and the use of such contractors does not relieve the City from any of its obligations under this Agreement. If the City engages any contractors to perform any part of the Project, the City agrees that the contract for such services, labor, or materials shall include the following provisions: A. The contractor must maintain all records and provide all reporting as required by this Agreement; B. The contractor must defend, indemnify, and hold harmless the County from all claims, suits, demands , damages, judgments, costs, interest, and expenses arising out of or by reason of the performance of the contracted work, caused by any intentional or negligent act or omission of the contractor, including negligent acts or omissions of its employees, subcontractors , or anyone for whose acts any of them may be liable; C. The contractor must provide and maintain insurance as set forth in the Insurance Terms, which is attached and incorporated herein as Exhibit 2, and provide to the County prior to commencement of the contracted work a certificate of insurance evidencing such insurance coverage; D. The contractor must be an independent contractor for the purposes of completing the contracted work; and E. The contractor shall perform and complete the activities in full compliance with this Agreement and all applicable laws, statutes, rules, codes, ordinances, and 5 regulations issued by any federal, state, or local political subdivisions having jurisdiction over the activities. ARTICLE 6 INSURANCE Except as otherwise stated in this Agreement, each party to this Agreement shall be solely 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 County and the City. Each Party warrants 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. Further, this is a joint powers agreement under Minn. Stat. § 471.59 and, as such, the parties will participate as a single entity for purposes of liability. In order to insure a unified defense against any third party liability claim arising from the work of the Project, City agrees to require all contractors or subcontractors hired to do any of the work contemplated by this Agreement to maintain professional liability insurance in amounts consistent with minimum limits of coverage established under Minn. Stat. § 466.04 during the term of such activity. All such insurance policies shall name City and County as additional insureds. City agrees to promptly provide County copies of any insurance policy related to this Agreement upon the County’s request. ARTICLE 7 REPORTING, ACCOUNTING, AND AUDITING REQUIREMENTS 7.1. Accounting Records. The City agrees to establish and maintain accurate and complete accounts, financial records, and supporting documents relating to the receipt and expenditure of the funding provided in accordance with this Agreement. Such accounts and records shall be kept and maintained by the City for a minimum period of 6 years following the expiration of this Agreement. City agrees to promptly provide the County copies of any accounting records related to this Agreement upon the County’s request. 7.2. Auditing. The City shall maintain books, records, documents, and other evidence pertaining to the costs or expenses associated with the work performed pursuant to this Agreement. Upon request the City shall allow the County, Legislative Auditor, or the State Auditor to inspect, audit, copy, or abstract all of the books, records, papers, or other documents relevant to this Agreement. The City shall use generally accepted accounting principles in the maintenance of such books and records, and shall retain all of such books, records, documents, and other evidence for a period of 6 years from the date of the completion of the activities funded by this Agreement. ARTICLE 8 AUTHORIZED REPRESENTATIVES AND LIAISONS 6 8.1. Authorized Representatives. The following named persons are designated the Authorized Representatives of the parties for purposes of this Agreement. All notice 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 COUNTY: Steven C. Mielke, Director, or successor Physical Development Division 14955 Galaxie Avenue Apple Valley, MN 55124 TO THE CITY: Logan Martin, or successor City Administrator 2875 145th St West Rosemount, MN 55068 8.2. Notification to County Attorney. In addition, notification to the County regarding termination or breach 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. 8.3. 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 County and the City. At the time of execution of this Agreement, the following persons are the designated liaisons: County Liaison: Jeff Bransford, Parks Administrative Manager, or successor Telephone: (952) 891-7168 Email: Jeff.Bransford@co.dakota.mn.us City Liaison: Dan Schultz, Parks and Recreation Director, or successor Telephone: (651) 322-6012 Email: dan.schultz@ci.rosemount.mn.us 8.4. Written Notice. The parties shall provide written notification to each other of any change to the designated Liaison or Authorized Representatives or the appointment of any additional designated liaisons or authorized representatives. Such written notification shall be effective to change the designated Liaison or Authorized Representative under this Agreement, without necessitating an amendment of this Agreement. ARTICLE 9 MODIFICATION Any material alterations, amendments, 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 County and the City. 7 ARTICLE 10 TERMINATION 10.1. In General. Either party may terminate this Agreement for cause by giving seven 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. 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 County for Lack of Funding. Notwithstanding any provision of this Agreement to the contrary, and only as applied to services that have not been provided, the County may immediately terminate this Agreement if it does not obtain funding from the Minnesota Legislature, Minnesota Agencies, or other funding source, 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 County to the City by email or facsimile is sufficient notice under this section. The County is not obligated to pay for any services that are provided after written notice of termination for lack of funding. Services will be considered “provided” even if they are not complete but must be completed or cannot be abandoned without jeopardizing public safety. The County 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 or its breach shall be venued exclusively in Dakota County, Minnesota. ARTICLE 12 MERGER 12.1. Final Agreement. 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. No other understanding regarding this Agreement, whether written or oral may be used to bind either party. 12.2. Exhibits. The following Exhibits are incorporated and made a part of this Agreement: Exhibit 1- a true and correct copy of the concepts for the Project. 8 Exhibit 2 – Insurance Terms sheet. By signing this Agreement, the parties acknowledge receipt of the above Exhibits. ARTICLE 13 SEVERABILITY The provisions of this Agreement are severable. If any provision of this Agreement is void, invalid, or unenforceable, it will not affect the validity and enforceability of the remainder of this Agreement unless the void, invalid, or unenforceable provision substantially impairs the value of the entire Agreement with respect to either party. ARTICLE 14 WAIVER Any waiver is only valid when reduced to writing, specifically identified as a waiver, and signed by the waiving party’s Authorized Representative. A waiver is not an amendment to the Agreement. Failure to enforce any provision of this Agreement shall not result in a waiver of the right to enforce the same or another provision of this Agreement. ARTICLE 15 RELATIONSHIP OF THE PARTIES Nothing contained in this Agreement is intended or should be construed as creating or establishing the relationship of co-partners or joint ventures between the County and the City, nor shall the County be considered or deemed to be an agent, representative, or employee of the City in the performance of this Agreement or the Project. Personnel of the City or other persons while engaging in the performance of this Agreement shall not be considered employees of the County and shall not be entitled to any compensation, rights, or benefits of any kind whatsoever. ARTICLE 16 AGREEMENT INTERPRETATION This Agreement was fully reviewed and negotiated by the parties. Accordingly, the parties agree the “against the offeror” principle of contract interpretation and construction shall not be applied to this Agreement. Any ambiguity, inconsistency, or question of interpretation or construction in this Agreement shall not be resolved strictly against the party that drafted the Agreement. It is the intent of the parties that every article, section (including any subsection), clause, term, provision, condition, and all other language used in this Agreement shall be constructed and construed so as to give its natural and ordinary meaning and effect, regardless of any rule or law to the contrary. 9 ARTICLE 17 SURVIVORSHIP The following provisions under this Agreement survive after the termination or expiration of this Agreement: Section 5.3 (Acknowledgement); Article 6 (Indemnification); Article 7 (Reporting, Accounting and Auditing); Article 11 (Minnesota Law to Govern); Article 12 (Merger); Article 13 (Severability); Article 14 (Waiver); Article 15 (Relationship of the Parties); Article 16 (Agreement Interpretation); Article 17 (Survivorship). In addition, termination or expiration shall not discharge any obligation which, by its nature, would survive after the date of termination or expiration. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date(s) indicated below. Approved by the City Council Date Resolution No. Approved by Dakota County Board Resolution No. 22-115 Dakota County Attorney’s Office Dakota County Judicial Center 1560 Highway 55 Hastings, MN 55033 651-438-4438 CITY OF ROSEMOUNT By Bill Droste, Mayor Date of Signature By Jessie Paque, Deputy City Clerk Date of Signature COUNTY OF DAKOTA By Steven C. Mielke Physical Development Director Date of Signature Approved as to Form By: Date of Signature KS-2022-xxxxx