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IV.11. Adopt Resolution 2014-069, Approving Cooperative Agreement with the Minnehaha Creek Watershed District, City Project 2014-16 October 21, 2014 Council Report 2014-119 APPROVE COOPERATIVE AGREEMENT POWELL ROAD STORM WATER DIVERSION PROJECT CITY PROJECT 2014-16 Proposed Action Staff recommends the following motion: “Adopt Resolution 2014-069,Approving Cooperative Agreement with the Minnehaha Creek Watershed District, City Project 2014- 16.” Overview Earlier this year, the Minnehaha Creek Watershed District (District) approached the City with a plan to construct a storm sewer line which would divert untreated storm water from the existing storm sewer in Powell Road into a future treatment basin within the Hopkins Cold Storage site. The District has committed to funding the design, construction, easement acquisition, and administration costs, as well as managing the project. The City will assume ownership and maintenance of the storm sewer line after it is built. For accepting maintenance responsibility of the line, the City will gain load reduction credit per District policy. This diversion line is planned for construction in 2015, and will be plugged until construction of the treatment basin within the Cold Storage site. Attached are the cooperative agreement and a plan showing the overall layout. This agreement has been reviewed by the City Attorney and City Engineer. Supporting Documents  Cooperative Agreement  Agreement Attachment A – Proposed Overall Site Layout  Resolution 2014-069 _______________________________________ Nate Stanley, P.E. City Engineer Financial Impact: Budgeted Y/N Source: Related Documents (CIP, ERP, etc.): Notes: __________________________________________________________________ COOPERATIVE AGREEMENT City of Hopkins and Minnehaha Creek Watershed District POWELL ROAD STORMWATER DIVERSION PROJECT This Cooperative Agreement (“Agreement”) is made this _____ day of ________, 2014, by and between the Minnehaha Creek Watershed District, a watershed district with purposes and powers as set forth at Minnesota Statutes Chapters 103B and 103D (“District”), and the City of Hopkins, a home rule charter city in the State of Minnesota (“City”). Recitals A. The City owns and operates a municipal system to collect and convey stormwater from a catchment of 217 acres more or less, principally within the City, as delineated as Existing Storm Sewer on Attachment A hereto. The conveyance passes into the City of St.Louis Park, where it conducts the stormwater without flow management or water quality treatment to an outfall into Minnehaha Creek. B. The District owns a parcel of land of about 17 acres within the City of Hopkins and adjacent to Minnehaha Creek (the “Property”). The District is performing feasibility work to assess the siting of a stormwater infiltration basin or similar practice that would provide water quality treatment for stormwater runoff from an area including this catchment, manage stormwater peak flow and volume, and reduce sediment discharge into the creek from bank erosion and downstream flooding. C. The purpose of this Agreement is to establish terms to construct and maintain a modification to the stormwater conveyance system, with associated structural appurtenances, that would divert stormwater presently discharged directly to Minnehaha Creek to a stormwater basin on the District property (the “Project”). The Project will lie on and under Powell Road, private property and both public and private rail right-of-way. THEREFORE the City and the District agree as follows: 1.0 DESIGN 1.1 The District may proceed with Project design and to that end will retain a professional engineering consultant to prepare plans and specifications for the Project. The District and City will coordinate in developing plans and specifications so that the Project meets City requirements for the City’s stormsewer and right-of-way systems. 1.2 During the design process, the City, in a timely fashion, will: (a) Specify reasonable terms and conditions for work in and adjacent to City right-of- way; (b) Give the District all information it possesses regarding subsurface conditions and rights of third parties within and adjacent to the affected right-of-way; facilitate coordination with such third parties; and facilitate resolution of any actual or 1 potential concerns as to the effect of Project construction or maintenance on third party rights and facilities; (c) Otherwise advise the District of any City requirements or interests that may affect the plans, specifications and construction including technical requirements to connect the diversion conveyance to the City system and terms for working in City right-of-way. 1.3 The District will obtain easements, permits and other approvals necessary to construct and maintain the Project. The City will process any permits or approvals it requires promptly and will not impose on the District any fees for those permits or approvals. 1.4 The 90 percent plans for the Project have been completed. Each party has a copy of the 90 percent plan set, titled “Specifications/Bid Documents for Diversion of Powell Rd Storm Sewer in St. Louis Park to 325 Blake Rd Property, Hopkins, Minnesota (October 10, 2014),” which is incorporated herein by reference. Within 20 days of receipt of final Project plans (the “Plans”) from the District, the City will transmit to the District written approval of the Plans provided they are consistent with the 90 percent plans and otherwise consistent with City requirements as described in this section 1.0. 2.0 CONSTRUCTION 2.1 On written concurrence in the Plans by the City per Section 1.4 above, the District may award a contract to construct the Project and proceed with construction pursuant to this Agreement, the Plans, current City standards and specifications and all applicable local, state and federal rules and regulations. The District will manage the construction contract, but will give the City advance notice of all formal pre-construction and construction meetings, which the City may attend. The City will not have authority to direct the contractor. 2.2 The District’s contract will require that: (a) The contractor name the City as an additional insured for general liability on a primary basis and for both ongoing work and completed operations; (b) The contractor will indemnify the City for the contractor’s negligent acts and those of its subcontractors. (c) The contractor will be responsible to determine the location of and protect all utilities; (d) The contractor will provide a performance bond for the completion of the Project; (e) The contractor will comply with local traffic and site control requirements; 2 (f) The contractor will restore or repair any damage to the City’s lands, equipment or facilities resulting from the contractor’s activities; and (g) All infrastructure must be built in accordance with current City standards and specifications as communicated by the City under section 1.0 above, and in compliance with the Plans and all applicable local, state and federal rules and regulations. 2.3 Until December 31, 2015 or City acceptance of the Project under subsection 3.1, below, whichever earlier, the District and its contractor may occupy City right-of-way within areas so designated in the plans and specification, including to stage and operate equipment and vehicles, stockpile excavation and fill materials, store materials, maintain erosion and sediment control practices, and otherwise as necessary or convenient to construct the Project. 2.4 The District in its judgment may make changes to the Plans with or without field directive, or by work change directive or change order. Any change to the Project that would materially affect the Project or change the Project from a non-gravity system is subject to the review and approval of the City Engineer, which approvals shall not be unreasonably withheld or delayed. 2.5 In performing its responsibilities under this section 2.0, including its securing of any work in progress insurance, the District is providing services to the City pursuant to this Agreement and is not assuming the role or authority of an owner of City right-of-way or an operator of the City’s stormwater infrastructure. The District assumes no responsibility for any pre-existing environmental condition within the area disturbed by the Project that is within City right-of-way. 3.0 MAINTENANCE 3.1 On certification of Project substantial completion by the District’s engineer and the delivery of record drawings to the City (“Substantial Completion”), the City will provide written acceptance of same if it conforms to the Plans as they may have been altered pursuant to subsection 2.4 . On acceptance by the City, it will assume ownership of the Project infrastructure up to and including the outfall structure into the basin located on the Property, including but not limited to all pumps, manholes and other appurtenances. The two spur elements shown on Attachment A as located on private property west of Powell Road and south of the rail right-of-way will be the property of the fee owner. The City will be responsible for both routine and long-term maintenance of the Project, apart from the two spur elements, to ensure that stormwater within the catchment flows to the stormwater management feature as intended. 3.2 The City’s cost of maintenance under subsection 3.1, as determined more precisely by the parties, will be considered an element of Project cost for the purpose of allocating Total Maximum Daily Load pollutant reduction credits pursuant to District Resolution 13-062 (May 23, 2013) or any successor District policy. 3 3.3 On Substantial Completion, the District will assign or convey, and the City will accept, easement and permit rights necessary for the City to exercise its ownership and maintenance rights under this Agreement. This includes but is not limited to: (a) “Easement, 8050 Powell Road, St. Louis Park, 8098 Excelsior Boulevard, Hopkins, Unassigned Address, Hopkins, Hennepin County, MN,” filed for record with Hennepin County on \[date\] as Document No. XXXXXX (abstract) and XXXXXX (Torrens); and (b) Utility Occupancy License No. 4316301 issued by the Soo Line Railroad Company, attached hereto as Attachment C and incorporated herein. (c) Hennepin County Regional Railroad Authority permit No. 32-14 for utility crossing. At all times after the City has accepted easement and permit rights, it will comply with all terms of those easements and permits. Without diminishing this responsibility and if the City fails to take reasonable measures to cure any noncompliance with 30 days’ notice, the District may cure any noncompliance on the City’s behalf and have a right of reimbursement from the City for the reasonable costs of doing so. If the City receives notice of an intent to terminate the utility occupancy license, it will notify the District immediately. The parties will consult and individually or together may take appropriate steps to allow the Project to remain in place and functional. 3.4 Promptly on the City’s acceptance under subsection 3.1, above, the District will convey to the City a perpetual easement affording the City the ability to inspect, maintain and reconstruct that part of the Project located on the Property. The easement will require that the City reasonably minimize impact to the surrounding natural environment and to any prior-constructed improvements, and repair any damage to the Property or improvements thereon. The parties recognize that the Property is intended for redevelopment and the easement terms will be written to limit interference with likely redeveloped uses. 4.0 COST RESPONSIBILITIES and REMEDIES 4.1 The District will bear the cost to design and construct the Project. 4.2 The City will bear the cost to own and maintain the Project. 4.3 Each party will bear its own administrative costs to perform its roles and responsibilities under this Agreement. 4.4 Each party holds harmless, and agrees to defend and indemnify, the other party from and against that portion of any and all liability, loss, claim, damage or expense (including reasonable attorney fees, costs and disbursements) that the indemnified party may incur as a result of the performance of this Agreement due to any negligent act or omission of the indemnifying party or any other act or omission that subjects the indemnifying party to liability in law or equity. 4 4.5 The City holds the District harmless from and against that portion of any and all liability, loss, claim, damage or expense (including reasonable attorney fees, costs and disbursements) that the District may incur arising from a pre-existing environmental condition on the Property. In the event of conflict, this subsection will have priority over subsection 4.4. 4.6 Notwithstanding subsections 4.4 and 4.5, this Agreement creates no right in and waives no immunity, defense or liability limit with respect to any third party or the other party to this Agreement. This Agreement is not a joint powers agreement under Minnesota Statutes §471.59 and nothing herein constitutes either party’s agreement to be responsible for the acts or omissions of the other party pursuant to subdivision 1a of that statute. 4.7 Only contractual remedies are available for the failure of a party to fulfill the terms of this Agreement. 5.0 GENERAL TERMS 5.1 Each communication under this Agreement will be made to the following representatives: MCWD: Project Manager, Powell Road Project Minnehaha Creek Watershed District 15320 Minnetonka Boulevard Minnetonka MN 55345-1503 City: City Engineer City of Hopkins st 1010 1 Street South Hopkins MN 55343 A party may change its contact by written notice to the other party. 5.2 This Agreement is effective on execution by both parties and will expire five years thereafter. The responsibilities of the parties under subsections 3.1, 4.4 and 4.5 will survive expiration. 5.3 This Agreement incorporates all terms and understandings of the parties concerning the Project. 5.4 An amendment to this Agreement must be in writing and executed by the parties. 5.5 A party’s failure to enforce a provision of this Agreement does not waive the provision or that party’s right to enforce it subsequently. 5 5.6 The above Recitals are incorporated into this Agreement. IN WITNESS WHEREOF the parties execute this Agreement by their authorized officers. CITY OF HOPKINS By _________________________________ Date: Its Mayor By _________________________________ Date: Its City Manager MINNEHAHA CREEK WATERSHED DISTRICT By _________________________________ Date: Its President Approved for form and execution: ____________________________________ MCWD Counsel 6 CITY OF HOPKINS HENNEPIN COUNTY, MINNESOTA RESOLUTION NO. 2014-069 RESOLUTION APPROVING COOPERATIVE AGREEMENT WITH MINNEHAHA CREEK WATERSHED DISTRICT POWELL ROAD STORM WATER DIVERSION PROJECT CITY PROJECT 2014-16 WHEREAS the storm water conveyed to Minnehaha Creek via the Powell Road storm , sewer system currently discharges untreated, and WHEREAS the Minnehaha Creek Watershed District has analyzed the area tributary to , the Powell Road storm sewer system and developed a plan to build a treatment basin for this storm water and the necessary infrastructure to divert and convey storm water to the treatment basin, and WHEREAS said treatment basin will be constructed within the 325 Blake Road , property at a future date, and WHEREAS the Minnehaha Creek Watershed District desires to construct the storm , water diversion system and has funding available to pay for the design and construction of said improvements, and has indicated a willingness to move forward with the project, and WHEREAS a Cooperative Agreement between the City and the Minnehaha Creek , Watershed District is necessary to define the responsibilities and costs of both parties, NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hopkins, Minnesota: The Mayor and City Manager are hereby authorized to enter into a cooperative agreement with the Minnehaha Creek Watershed District for the said project. st Adopted by the City Council of the City of Hopkins, Minnesota, this 21 day of October, 2014. By_______________________________ Eugene J. Maxwell, Mayor ATTEST: _________________________________ Amy Domeier, City Clerk