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CR 07-032 Approve Cooperative Agreementw/ 9 Mile Creek Watershed & Engineering Services Agreement w/ WSB City Project no 2006-05G`TY OF March 20, 2007 H o P K i N s Council Report 2007-032 APPROVE COOPERATIVE AGREEMENT W/ 9 MILE CREEK WATERSHED AND ENGINEERING SERVICES AGREEMENT WITH WSB CITY PROJECT N0.2006-05 Proposed Action Staff recommends the following motion: "Move that Council adopt Resolution 2007-020, Resolution Approving Cooperative Agreement with 9 Mile Creek Watershed and En in~g Services Agreement with WSB & Associates for the 9 Mile Creek Bank Stabilization Project, 2006-OS" Overview At the May 2, 2006, meeting, the Hopkins City Council petitioned the 9 Mile Creek Watershed District to improve 9 Mile Creek with a bank stabilization project. The preliminary engineering report was presented to the Council on May 2, 2006. The District has indicated their desire to move forward with the project and provide 100% funding of the improvements. The estimated costs are approximately $2.5 million and include the 5th Street South culvert that was in the CIP for replacement. he upper reach of the creek in Hopkins will be designed by the City's consultant (WSB & Associates) while e lower reach will be designed by the District's consultant (Barr Engineering). The cost of all engineering services related to the bank stabilization project is to be reimbursed by the District, while land acquisition services are reimbursed at a rate of 25% District, 75% City. The District is meeting on March 21, 2007 to approve this agreement and move forward with the next phase of the project. Supuortin~ Information Resolution 2007-020 Cooperative Agreement with 9 Mile Creek Engineering Services Agreement with WSB & Associates, Inc. ~/~ ~~ Jo .Bradford, P.E. Engineer Financial Impact: 6 500 Budgeted: Y/N Yes Source: _ Utility funds Related . Documents (CIP, ERP, etc.): - Notes: .. C®OPERATIVE AGREEMENT Between the Nine 1Vlile Creek Watershed District and the City of Hopkins Nine IVIile Creek Bank Stabilization and Habitat Enhancement Project, Hopkins This Agreement is made by and between the Nine Mile Creek Watershed District (hereinafter referred to as "NMCWD"), a watershed district created pursuant to Minnesota Statutes Chapter 103D, and the City of Hopkins (hereinafter referred to as "Hopkins"), a home rule charter city under Art. XII, sec. 4, of the Minnesota Constitution. Recitals and Statement of Purpose WHEREAS, the NMCWD has an approved Water Resources Management Plan pursuant to Minnesota Statutes Chapter 103B that has as a primary goal the improvement of water quality in Nine Mile Creek, including the reduction of sediment entering the creek, WHEREAS, the stabilization of the stream bank and enhancement of riparian habitat along the creek in Hopkins (hereinafter the "Project") will reduce sediment loading to Nine Mile Creek; WHEREAS, Hopkins has petitioned the NMCWD to undertake the Project, as a project furthering the purposes and goals of the NMCWD; WHEREAS, ~iopkins and the NMCWD wish to cooperatively develop the design and operations and maintenance plan for the Project; WHEREAS, Hopkins and the NMCWD acknowledge that their ability to achieve Project objectives depends on each party satisfactorily and promptly performing individual obligations and working cooperatively with the other party; IT IS AGREED by and between Hopkins and the NMCWD that they enter into this Cooperative Agreement to document their understanding as to the scope of the Project, reaffirm their coriunitments as to the general responsibilities of and tasks to be undertaken, establish procedures for performing these tasks and carrying out these responsibilities, and facilitate conununication and cooperation to ensure successful completion of the Project to achieve water- quality management goals through the stabilization of the banks and enhancement of habitat along the Nine Mile Creek in Hopkins. Nine Mile Creek Watershed District-Hopkins Bank Stabilization and Habitat Enhancement Project 1 Cooperative Agreement -- February 12, 2007 AGREEIi~IEI®1T 1. General Responsibilities and Performance Guidelines 1.1 Except as otherwise specifically stated herein, each party retains the final authority concerning implementation of the tasks it assumes under this Agreement, but shall provide the other party and the Implementation Team the opportunity to review and comment on design plans and specifications, related plans, contractual documents and other documents prepared pursuant to this Agreement. 1.2 All designs, written materials, technical data, research and any other work-in-progress shall be shared between the parties to this agreement on request, except as prohibited by law. As soon as is practicable, the party preparing plans, specifications, contractual documents, materials for public communication or education will provide them to the other party as drafts for review and continent. 2. ®r~anization 2.1 Each party to this agreement shall designate two qualified persons to serve on the Implementation Team. Appropriate persons are those having primary administrative or supervisory responsibility for the tasks to be completed by the appointing party. The Implementation Team shall serve as the administrative body through which the parties to this agreement coordinate their day-to-day efforts regarding the Project. 2.2 Each party will use best efforts to coordinate and communicate informally, primarily through the Implementation Teain, so that any issues may be addressed and the plans and specifications contemplated by this agreement may be approved as quickly as possible. Members of the Implementation Team will meet frequently to ensure the integration of the upstream and downstream designs for the Project. 2.3 Within 90 days after this agreement takes effect, the Implementation Team shall prepare a plan for public participation, communication and education. Activities under the plan shall be carried out individually or together as the plan may specify. Implementation Team members may not commit to expenditures for public education plan implementation that otherwise require approval of their respective governing bodies unless that approval has been obtained. 2.4 The NMCWD District Administrator will serve as one of the District's Implementation Team representatives and will also serve as Project Coordinator and chair of the Implementation Team. Pursuant the direction of the Implementation Team, the Project Coordinator shall coordinate Project implementation and communication between the parties. The Project Coordinator will ensure the integration of the upstream and downstream designs for the Project into a single design document for purposes of securing necessary permits, bidding and construction of the Project. The Project Coordinator will ensure that all permits and other regulatory approvals necessary for the Project are identified in the Project design document. 2.5 The Tmplementation Team will ensure that regulatory entities from whom permits or other approvals will be necessary for the Project are consulted in advance of the Nine Mile Creek Watershed District-Hopkins Bank Stabilization and Habitat Enhancement Project 2 Cooperative Agreement -- February 12, 2007 completion of the design of the Project and provided with opportunity to review and comment on draft Project specifications and designs, and to otherwise provide guidance on the pea-mitting necessary for the Project. 2.6 The Implementation Team will solicit participation in a Technical Advisory Committee for the project by an appropriate representative from each of the following: the Minnesota Board of Water and Soil Resources, the Minnesota Department of Natural Resources, the United States Army Corps of Engineers, the Minnesota Pollution Control Agency, Hennepin County, the Tlu-ee Rivers Park District, and appropriate other agencies as determined by the Implementation Team. 2.7 Within 180 days after this Agreement takes effect, the Implementation Team shall prepare a plan for the maintenance of the Project, as contemplated by the terms of this Agreement. 3. Specifgc Tasks and >12esponsibilities 3.I I~1VIC 3.1.1 The NMCWD shall prepare design plans and specifications for the portion of the Project downstream of 9th Avenue. A significant portion of the project downstream of 9`~' Avenue runs through parkland, which will allow for a design that maximizes opportunities for channel reconfiguration, bioengineered streambank stabilization, stormwater management basin, habitat enhancement and other natural resources restoration practices, as well as integration with the design for the upstream portion of the Project. The NMCWD will present design plans and specifications to Hopkins for a period of no less than thirty (30) days for review and comment. 3.1.2 The NMCWD, through its District Engineer, will assure the entire project design is feasible and that the upstream and downstream designs combine into a single design and specifications document for project permitting, bidding, and construction purposes. 3.1.3 The NMCWD shall obtain all permits and regulatory approvals for the Project, with the cooperation and assistance of Hopkins. 3.1.4 The NMCWD will ensure that the design and construction of the Project confoi-n1 with the petition and basic water-management process of Minnesota Statutes chapter 103D. The NMCWD will ensure that the design and construction of the Project and the operation and maintenance plan for the Project conform with the NMCWD Water Resources Management Plan, adopted and approved pursuant to Mimnesota Statutes chapter 103B. 3.1.5 In consultation with Hopkins, the NMCWD will develop bidding specifications in accordance with the approved design for the Project, and let the Project for bids and select a contractor in accordance with Minnesota procurement law. The NMCWD will present bidding specifications to Hopkins for a period of no less than thirty (30) days for review and comment. The NMCWD will review all responsive bids received with Hopkins before selecting a contractor for the Project. Nine Mile Creek Watershed District-Hopkins Bank Stabilization and Habitat Enhancement Project 3 Cooperative Agreement -- February 12, 2007 3.l .b The NMCWD will appoint the District Engineer to provide construction supei~ision and oversight for the Project. The NMCWD District Engineer also will review contractor invoices for construction of the Project and will recommend payment. NMCWD will inform and review with Hopkins any change orders which in the judgment of the District Engineer are significant in ternls of project design or maintenance. 3.2 Hopkins 3.2.1 Hopkins shall prepare design plans and specifications for the portion of the Project upstream of 9th Avenue. The plans and specifications will be appropriate to the confined and developed character of the upstream segment of the creek and will rely on conventional solutions to erosion problems in built environments, but will also include native vegetation and habitat enhancement to the greatest extent possible to ensure integration with the design for the downstream portion of the Project. Hopkins will submit these upstream design plans and specifications to the NMCWD District Engineer to be integrated into a single design document for the entire project. 3.2.2 Hopkins shall review and comment to NMCWD on the design and bidding specifications for the project within thirty (30) days of receipt from the NMCWD. 3.2.3 Hopkins will conduct surveys necessary for the Project, produce easement descriptions necessary for the Project and negotiate all agreements with property owners or otherwise undertake the legal means necessary for acquisition of property rights necessary for the Project, including easements or other property rights necessary for the Project in publicly owned right-of--way, easements or other property rights necessary for the Project on land owned by private parties, and easements or other property rights necessary for the long- tei•~n operations and maintenance of the Project. Hopkins will inform NMCWD of property acquisition costs and obtain NMCWD approval of such costs prior to acquiring the necessary easements or other property rights for the project, as provided in paragraph 4.1.3. 3.2.4 Hopkins shall cooperate with the NMCWD to obtain any permits and approvals needed for the Project and act to facilitate the proper and efficient processing of all applications from the NMCWD for approvals for the Project that lie within its authority. 3.2.5 Hopkins will provide, through its engineering consultant, liaison services to affected property owners through the planning and design, property acquisition, and construction phases of the project. Hopkins, by its review and comment on NMCWD's contractual decisions, shall not be considered a party to the contract. 3.2.6 Hopkins shall own all facilities created or installed in fulfillment of the teens of this agreement. Hopkins shall afford all means of access to and on the land that is or will be the location of the facilities to be constructed oi- constructed under the teens of agreement as is necessary and convenient for construction the NMCWD's performance of its responsibilities under this agreement and as necessary for the continuing fulfillment of the goals and objectives of NMCWD's approved water management plan and, as necessary, the maintenance plan for the Project. Nine Mile Creek Watershed District-Hopkins Sank Stabilization and Habitat Eilhanceinent Project 4 Cooperative Agreement -- February 12, 2007 3.2.7 Hopkins shall be responsible for ordinary maintenance of the Project according to the plan developed by the hnplementation Team pursuant to paragraph 2.7. 4. Cost-sharing 4.1 Easement costs 4.1.1 Hopkins shall be responsible for 7~ percent of total costs of easements and other property rights necessary for the Project and 75 percent of all other costs related to acquisition of property rights necessary for the Project, including appraisals, legal fees and property owner compensation. 4.1.2 The NMCWD shall be responsible for 25 percent of total costs of easements and other property rights necessary for the Project and 25 percent of all other costs related to acquisition of property rights necessary for the Project, including appraisals, legal fees and property owner compensations. 4.1.3 Hopkins will provide NMCWD with the proposed costs of any easement necessary for the Project no fewer than thirty (30) days prior to the acquisition or commitment to the acquisition of the easement for review and approval. Failure to comply with this provision of this Agreement will result in Hopkins assuming responsibility for 100 percent of the costs of any easement acquired or for- which Hopkins has entered into a commitment to acquire. 4.1.4 Hopkins will initially pay 100% of the costs of easements and other necessary property rights, and upon completion of the acquisition process submit an invoice to NMCWD for reimbursement of 25% of the approved costs. 4.2 mater resources costs 4.2.1 NMCWD shall be responsible for all project costs related to the construction of the water-management facilities of the Project, as described and specified in the design documents prepared pursuant to sections 3.1.1 and 3.2.1 of this agreement, lllcludlllg but not limited to stream bank stabilization; replacement of the Sty' Street CSP culvert; construction ol~ ponds; delineation, dredging, improvement, invasive-species removal and revegetation of wetlands. 4.3 l~Iiscellaneous costs 4.3.1 Hopkins shall be responsible for 50 percent of all other costs for the Project, including, but not limited to, costs for materials for and construction of trails, bridges, signage, etc. and other non-water resources related items. 4.3.2 The NMCWD shall be responsible for 50 percent of all other costs for the Project, including, but not limited to, costs for materials for and construction of trails, bridges, signage, etc. Nine Mile Creek Watershed District-Hopkins Bank Stabilization and Habitat Enhancement Project 5 Cooperative Agreement -- February 12, 2007 r 4.3.3 NMCWD will be responsible for up to $6,000 of property owner liaison and field activity services provided by Hopkins or its consultant. Hopkins will be responsible for any such costs incun-ed beyond $6,000. 4.3.4 NMCWD will be responsible for the costs of any other services requested by Hopkins and agreed upon, including the rates and total amount of such services, in advance. 4.4 grants 4.4.1 The NMCWD and Hopkins agree to cooperatively and collaborative pursue funding for the Project from appropriate grantmaking and other sources of funding. Grant funding secured will be applied to offset costs incurred by either party under the terms of this agreement and as specified in the relevant grantmaking agreement. 5. Schedule The parties will use best efforts to complete the Project according to the schedule included as Attachment A to this agreement. 6. Mutual Indeuinification Hopkins and the NMCWD enter this Agreement solely for the purposes of stabilizing the banks and improving habitat along the Nine Mile Creek in Hopkins. Accordingly, with respect to any and all activity undertaken pursuant to this Agreement, Hopkins and the NMCWD shall each hold harmless, defend and indemnify the other, its officers, employees and agents for all claims, damages, liabilities, losses and expenses incurred by any and each of them ot- asserted against them at any time by the other party or any third party, including any govermnental body. Notwithstanding section 9 oi- any other provision of this agreement, Hopkins' and the NMCWD"s obligations under this paragraph shall survive the termination of the agreement. 7. Amendments This agreement may be amended only by a writing signed by both parties. ~. 1~lotice Notice to a party to this agreement shall be given by hand delivery or first-class mail addressed to a representative of the party on the Implementation Team. 9. Termination This agreement shall terminate five (5) years from the date of execution, or on the . written agreement of both parties hereto. The agi-eernent may be terminated by either party on advance written notice per the provisions of section 8 of this agreement. Nine Mile Creek Watershed District-Hopkins Bank Stabilization and Habitat Enhancement Project ~j Cooperative Agreement -- February 12, 2007 y IN WITNESS WHEREOF, the parties have executed this Agreement. I~1II~tE I~'IILE CREEK WA'I'EI2SHED DIS'I' CT a political subdivision of the State of Minnesota LuAiln Tolliver -President By Dated: APPROVED AS TO FORM AND EXECUTION By District Counsel CI'I'~' ®F II®PKI1~1S, a home rule charter city By Gene Maxwell -Mayor of Hopkins Dated: APPROVED AS TO FORM AND EXECUTION By City Attorney Nine Mile Creek Watershed District-Hopkins Bank Stabilization and Habitat Enhancement Project 7 Cooperative Agreement -- FebY•uary 12, ?007 WSB &8c As Inc Infrastructure 1 Engineering 1 Planning 1 Construction March 13, 2007 Mr. John Bradford City of Hopkins 1010 First Street S. Hopkins, MN 55343 Re: Feasibility Study WSB Project No. 1474-08 Dear John: 701 Xenia Avenue South Suite 300 Minneapolis, MN 55416 Te1:763-541-4800 Fax:763-541-1700 Enclosed please find our Professional Services Agreement for the above-referenced project. Please execute a copy and return it to us for our signature. We look forward to working with you on this project. Please call me at 763-287-7188 with any questions you may have. Sincerely, SB ~ Associates, Inc: Peter R. Willenbring, PE Vice President Enclosure lh Minneapolis 1St. Cloud Equal Opportunity Employer K:101474-081AdminlContractlLTR jbradford-030907.doc WSB ASS®CIATES, INC. P®EESSINAL SERVICES AGREEMENT This Agreement is made as of the 13`~ day of March, 2007, by and between the City of Hopkins, hereinafter referred to as City, and WSB & Associates, Inc., hereinafter referred to as Engineer, with offices located at 701 Xenia Avenue South, Suite 300, Minneapolis, Minnesota 55416. Witnesseth, that the City and Engineer, for the consideration herein named, agree as follows: SECTION 1 /GENE CONTRACT PROVISIONS These provisions shall be as set forth in Exhibit A. SECTION 2 /SCOPE OF WORK The scope of work to be performed by Engineer is set forth in Exhibit C. The work and services to be performed hereunder and described in Exhibit C shall be referred to herein and in the General Contract Provisions as the Project. SECTION 3 /COMPENSATION Compensation to Engineer for services described in this agreement shall be as designated in the attached Exhibit D and as hereinafter described. SECTION 4 /WORK SCHEDULE The anticipated schedule is set forth in Exhibit C. SECTION 5 /SPECIAL CONDITIONS Special conditions, if any, are as set forth in Exhibit G. CITY: CITY OF OPKINS ADDRESS: BY: SIGNATURE: TITLE: BY: SIGNATURE: TITLE: SECTION 6 /EXHIBITS The following initialed Exhibits are attached to and made a part of this Agreement: ~~ Exhibit A General Contract Provisions Exhibit B Defmitions ~~ Exhibit C Scope of Work ~ Exhibit D Compensation ~~ Kam' Exhibit E Insurance Schedule ~lw-~Exhibit F Fee Schedule SECTION 7 /ACCEPTANCE OF AGREEMENT All work and services described in this agreement shall be performed by Engineer only after written acceptance of the City. The undersigned hereby accept the terms and conditions of this agreement and Engineer is hereby authorized to perform the services described herein. WSB & ASSOCIATES, INC. ADDRESS: 701 XENIA AVENUE SOUTH SUITE 300 MINNEAPOLIS, MN 55416 BY: W . \ ~ r. ~~ SIGNAT TITLE: ~[.. ` !-< BY: SIGr TITI Professional Services Agreement Page 1 K\01474-OSVldmin\Convaa\HoplancPSAdoc ~V'SB ASS®CIA'TES, C. EXHIBIT A GEI~dERAL COI~TTRACT 1'R®~1IS~ONS ARTICLE 1 -GENERAL These general contract provisions are incorporated in and become a part of the Agreement to which it is attached between WSB & Associates, Inc., hereinafter referred to as Engineer, and the other party to the Agreement, City of Hopkins, hereinafter referred to as City, wherein the City engages the Engineer to provide certain services more particularly described in Exhibit C, Scope of Work. Either party may be hereinafter referred to as party or, collectively, parties. The starting date will commence when authorized by the City. ARTICLE 2 -CHANGED CONDITIONS If the Engineer determines that any services it has been directed or requested to perform are beyond the scope as set forth in Exhibit C or that, due to changed conditions or changes in the method or manner of administration of the Project, the Engineer's effort required to perform its services under this Agreement exceeds the estimate which formed the basis for the Engineer's compensation, Engineer shall promptly notify the City of that fact. Additional work and additional compensation for such work, and the extension of time for completion thereof, shall be set forth in a supplemental agreement entered into by the parties prior to proceeding with any additional work or related expenditures. Such supplemental agreement shall be incorporated in and become a part of this Agreement. In absence of said supplemental agreement, amounts of compensation and time for completion shall be equitably adjusted. ARTICLE 3 -TERMINATION This Agreement may be terminated by either party upon thirty days' written notice without cause. In the event of termination, copies of plans, reports, specifications, electronic drawing/data files (CADD), field data, notes, and other documents whether written, printed or recorded on any medium whatsoever, finished or unfinished, prepared by the Engineer pursuant to this Agreement and pertaining to the work or to the Project, (hereinafter "Instruments of Service"), shall be made available to the City pursuant to Article 4. All provisions of this Agreement allocating responsibility or liability between the City and Engineer shall survive the completion of the services hereunder and/or the termination of this Agreement. ARTICLE 4 -REUSE AND DISPOSITION OF INSTRUMENTS OF SERVICE During the course of the work, the Engineer (shall, if requested,) make available to the City copy(ies) of the Instruments of Service. At the time of completion or termination of the work, the Engineer may make available to the City upon (i) payment of amounts due and owing for work performed and expenses incurred to the date and time of termination, and (ii) fulfillment of the City's obligation under this Agreement. Any use or re-use of such Instruments of Service by the City or others without written verification or adaption by the Engineer except for the specific purpose intended will be at the City's risk and full legal responsibility. The City agrees, to the fullest extent permitted by law, to indemnify and hold the Engineer harmless from any claim, liability or cost (including reasonable attorneys' fees, and defense costs) arising or allegedly arising out of any unauthorized reuse or modification of these Instruments of Service by the City or any person or entity that acquires or obtains the reports, plans and specifications from or through the City without the written authorization of the Engineer. Under no circumstances shall transfer of Instruments of Service be deemed a sale by Engineer, and Engineer makes no warranties, either expressed or implied, of merchantability and fitness for any particular purpose. ARTICLE 5 -AGREEMENT As used herein Agreement means: (1) The agreement for engineering, surveying and planning services; (2) These general contract provisions; (3) The attached exhibits; and (4) The supplemental agreement, where applicable. As to superseding effect, the attached exhibits shall govern over these general provisions, and the supplemental agreement, where applicable, shall govern over attached exhibits and these general provisions. The Agreement constitutes the entire understanding between the Engineer and City. The Agreement supersedes all prior written or oral understanding and may only be amended, supplemented, modified or cancelled by a duly executed written instrument. ARTICLE 6 - RESPONSIBII-ITIES A. In order to permit the Engineer to perform the services required under this Agreement, the City shall, in proper time and sequence and where appropriate to the Project, at no expense to the Engineer: 1. Provide available information as to its requirements for the Project. 2. Guarantee access to and make all provisions for the Engineer to enter upon public and private lands to enable the Engineer to perform its work under this Agreement. 3. Provide such legal, accounting and insurance counseling services as may be required for this Project, (such as review of insurance certificates, bonding clarifications and legal questions regarding property acquisition or assessment). 4. Notify the Engineer whenever the City observes or otherwise becomes aware of any defect in the Project. 5. The Hopkins City Council or a person or persons designated, shall act as City's representative with respect to the services to be rendered under this Agreement. The City's representative shall have the authority to transmit and receive instructions and information and to interpret and define the City's policies with respect to services rendered by the Engineer. 6. Furnish data (and professional interpretations thereof) prepared by or services performed by others, including where applicable, but not limited to, previous reports, core borings, probings and sub- surface explorations, hydrographic and hydrogeologic surveys, laboratory tests and inspection of samples, materials and equipment; appropriate professional interpretations of the foregoing data; environmental assessment and impact statements; property, boundary, easement, right-of--way, topographic and utility surveys; property description; zoning, deed and other land use restrictions; and other special data. 7. Review all reports, sketches, drawings, specifications and other documents prepared and presented by the Engineer, obtain advice of legal, accounting and insurance counselors or others as City deems necessary for such examinations and render in writing decisions pertaining thereto within reasonable times so as not to delay the performance by the Engineer of the services to be rendered pursuant to this Agreement. 8. Where appropriate, endeavor to identify, remove and/or encapsulate asbestos products or materials or pollutants located in the project area prior to accomplishment by the Engineer of any work on the Project. 9. Provide record drawings and specifications for all existing physical plants of facilities which are pertinent to the Project. 10. Where available provide other services, materials, or data as may beset forth. 11. Bear all costs incidental to compliance with the requirements of this article. 12. Provide the foregoing in a manner sufficiently timely so as not to delay the performance by the Engineer of the services in accordance with the Contract Documents. B. Engineer shall be entitled to rely on the accuracy and completeness of information or services furnished by the City or others employed by the City. Engineer shall endeavor to verify the information provided and shall promptly notify the City if the Engineer discovers that any information or services furnished by the City is in error or is inadequate for its purpose. Exhibit A -General Contract Provisions Page 1 K:W1474.08Wdmin\contnctUiopkins Ex6 A.doe ARTICLE 7 -OPINIONS OF COST Opinion, if any, of probable cost, construction cost, financial evaluations, feasibility studies, economic analyses of alternate solutions and utilitarian considerations of operations and maintenance costs provided for are made or to be made on the basis of the Engineer's experience and qualifications and represent the Engineer's best judgment as an experienced and qualified professional design firm. The parties acknowledge, however, that the Engineer does not have control over the cost of labor, material, equipment or services furnished by others or over market conditions or contractor's methods of determining their prices, and any evaluation of any facility to be constructed or acquired, or work of necessity must be speculative until completion of construction or acquisition. Accordingly, the Engineer does not guarantee that proposals, bids or actual costs will not vary from opinions, evaluations or studies submitted by the Engineer. ARTICLE 8 -INSURANCE Engineer has procured insurance in the types and amounts set forth in Exhibit E. ARTICLE 9 -ASSIGNMENT This Agreement, intended to secure the service of individuals employed by and through the Engineer, shall not be assigned or transferred without written consent of the City. ARTICLE 10 -CONTROLLING LAW This Agreement is to be governed by the laws of the State of Minnesota. ARTICLE 11 -NON-DISCRIMINATION Engineer will comply with the provisions of applicable Federal, State and Local Statutes, Ordinances, and Regulations pertaining to human rights and non-discrimination. ARTICLE 12 -CONFLICT RESOLUTION In an effort to resolve any conflicts that arise during the design or construction of the project or following the completion of the project, the City and Engineer agree that all disputes between them arising out of or relating to this Agreement shall be submitted to nonbinding mediation unless the parties mutually agree otherwise. ARTICLE 13 -CONFIDENTIALITY The Engineer agrees to keep confidential and not to disclose to any person or entity, other than the Engineer's employees, subconsultants and the general contractor and subcontractors, if appropriate, any data and information not previously known to and generated by the Engineer or furnished to the Engineer and marked CONFIDENTIAL by the City. These provisions shall not apply to information in whatever form that comes into the public domain, nor shall it restrict the Engineer from giving notices required by law or complying with an order to provide information or data when such order is issued by a court, administrative agency or other authority with proper jurisdiction, or if it is reasonably necessary for the Engineer to defend himself or herself from any suit or claim. ARTICLE 14 -LOCATION OF UNDERGROUND IMPROVEMENTS The Engineer and/or his or her authorized subconsultant will conduct the research that in his or her professional opinion is necessary and will prepaze a plan indicating the locations intended for subsurface penetrations with respect to assumed locations of underground improvements. Such services by the Engineer or his or her subconsultant will be performed in a manner consistent with the ordinary standard of care. The City recognizes that the research tray not identify all underground improvements and that the information upon which the Engineer relies may contain errors or may not be completed. The City agrees, to the fullest extent permitted by law, to waive all claims and causes of action against the Engineer and anyone for whom the Engineer may be legally liable, for damages to underground improvements resulting from subsurface penetration locations established by the Engineer, except that the City does not release the Engineer, its principals, employees, agents and consultants from negligence which causes damage to underground improvements resulting from subsurface penetration locations established by the Engineer. ARTICLE 15 -CONSTRUCTION OBSERVATION The Engineer shall visit the project at appropriate intervals during construction to become familiar with the progress and quality of the contractors' work and to determine if the work is proceeding in general accordance with the Contract Documents. The City has not retained the Engineer to make detailed inspections or to provide exhaustive or continuous project review and observation services. For City-observed projects, the Engineer shall accept the construction of the project as being completed according to the construction documents upon a similar justification by the City observer. The Engineer does not guarantee the performance of, and shall have no responsibility for, the acts or omissions of any contractor, subcontractor, supplier or any other entity furnishing materials or performing any work on the project. If the City desires more extensive project observation or full-time project representation, the City shall request such services be provided by the Engineer as Additional Services in accordance with the terms of this Agreement. In this instance, the Engineer shall accept the construction of the project as being completed according to the construction documents. However, the Engineer does not guarantee the performance of, and shall have no responsibility for, the acts or omissions of any contractor, subcontractor, supplier or any other entity furnishing materials or performing any work on the project. ARTICLE 16 -INDEMNIFICATION The Engineer agrees, to the fullest extent permitted by law, to indemnify and hold the City harmless from any damage, liability or cost (including reasonable attorneys' fees and costs of defense) to the extent caused by the Engineer's negligent acts, errors or omissions in the performance of professional services under this Agreement and those of his or her subconsultants or anyone for whom the Engineer is legally liable. The City agrees to the fullest extent permitted by law, to indemnify and hold the Engineer harmless from any damage, liability or cost (including reasonable attorneys' fees and costs of defense) to the extent caused by the City's negligent acts, errors or omissions and those of his or her contractors, subcontractors or consultants or anyone for whom the City is legally liable, and arising from the project that is the subject of this Agreement. Exhibit A -General Contract Provisions Page 2 K:\01474.OBVldmin\Conuaet\liopkins Fxh A.doe SB & ASSOCIATES, INC. EXHIBIT B DEFINITIONS B.1 "HOURLY BASIS" means that the fee shall be determined by multiplying the number of hours of work performed, times the direct personnel cost for the appropriate labor classification shown on the fee schedule. B.2 "CONSTRUCTION COST" means the amount of the construction contract awarded for the improvement prof ect, plus the value of any equipment, materials or supplies furnished by the City for installation or use by the construction contractor, plus any increases in the contract amount implemented by change order, supplemental agreement or other instrument subsequent to award of the contract. Reductions in the contract amount subsequent to award will not be a basis for reducing the fee. If a construction contract is not awarded, the construction cost shall be considered to be the engineer's estimated cost for the construction of the improvement project, as prepared for the bid opening, unless the City believes the engineer's estimate is unreasonable, in which case, the Engineer and the City shall agree upon an alternate basis for determining the construction cost. Such alternate basis may include negotiation, development of an independent estimate by a third party, or other means. B.3 "EXPENSES" means costs incurred in the performance of the services described herein or authorized by the City which are not direct personnel costs or overhead costs. Expenses include long distance telephone charges, subconsultant fees, testing costs, outside reproduction and printing costs, equipment rental costs and similar costs. B.4 "LUMP SUM PRICE" means an amount negotiated between the City and Engineer for performance of the services specified in the Design Agreement which is subject to adjustment only if the Scope of Services changes or if circumstances beyond the control of the Engineer causes an increase in the cost of performance of the services. B.5 "DESIGN AGREEMENT" means a written order executed by an authorized representative of the City describing the scope of services and engineering fee arrangement for an improvement project. B.6 "IMPROVEMENT PROJECT" means public improvement projects authorized by the City and paid for with public funds. B.7 "DEDICATION PROJECT" means those proposed improvement projects to be constructed by private funding for eventual dedication to the public. Exhibit B -Definitions Page 1 K:w1474•oaw,a.mn\ConasetWopldns Fxh B.doe SB f,- 1JIJ®CIr7- i E1J9 INCs EXHIBIT C C PE C.l FEASIBILITY REPORT AND TOPOGRAPHIC SUR~IEY WSB & Associates, Inc. shall complete a feasibility study that includes a topographic survey for the portion of the project upstream of 9~' Avenue. The study will be appropriate to the confined and developed character of the upstream segment of the creek and will rely on conventional solutions to address erosion problems in built environments. The study options will also utilize native vegetation and habitat enhancement to the greatest extent possible to ensure integration with the design for the downstream portion of the project. Hopkins will submit this feasibility study to the NMCWD Engineer for integration into a single feasibility study for the entire project. C.2 RIGHT-OF-WAY SERVICES WSB & Associates, Inc. shall complete legal surveys, and easement descriptions necessary for the project, and assist in negotiating agreements with property owners. WSB shall also assist in the acquisition of necessary property rights, including easements, permission to enter, or other approvals necessary to construct the project and conduct long-term operations and maintenance of the project. WSB & Associates, Inc. shall complete an ownership and encumbrance study to develop information on legal descriptions, fee owner names, easements, and other encumbrances on parcels directly adjacent to the channel throughout this reach will be undertaken. We anticipate 15 ownership and encumbrance reports will need to be prepared as part of this effort. We anticipate undertaking this effort for all parcels and property adjacent to this channel, with the exception of the parcels on the west side of the ditch between 7~' Street South and 11 ~' Avenue South. This is the open space that is currently listed as tax forfeit. WSB & Associates, Inc. shall provide right-of--way acquisition services as directed by the City staff. These services may consist of holding property owner meetings, preparing appraisals, offer letters, etc. These services will be performed as directed by the City throughout the course of the project C.3 FINAL DESIGN /PLANS AND SPECIFICATIONS WSB & Associates, Inc. will prepare final plans and specifications for improvements to the portion of the project upstream of 9~' Avenue. The design will reflect the selected option from the feasibility study. The plans and specifications will be submitted to the NMCWD for inclusion into the plans for the entire project. The specific Scope of Work related to the design will be defined upon completion of the feasibility report. Exhibit C -Scope of Work Page 1 K:\01474.0844dmin\Con4act\I-IopWne Ex6 C.d« S ASSOCIATES, INC. EXHIBIT C SCOPE OF WO C.4 CONSTRUCTION MANAGEMENT /OBSERVATION As directed by City staff, WSB & Associates, Inc. will provide construction management and observation services to affected property owners within Hopkins. These services will be provided as part of the planning, design, property acquisition, and construction phases of the project, as well as periodically during construction to verify the contractor is constructing improvements consistent with the plans. Exhibit C -Scope of Work Page 2 K:w1474•oawamtn\Contract\Hopkins Fx6 C.doc ASSOCIATES, NC® EXHIBIT D COMPENSATION D. l The City shall pay the Engineer for Basic Services rendered on an hourly basis. Because the Scope of Work associated with this project is not and cannot be fully defined at this time, a fixed or not-to-exceed cost for this work cannot be provided; however, the estimated range of cost for each of the services outlined in Exhibit C are as follows: Estimated Fee C 1: Feasibility Report and Topographic Survey ® Ownership & Encumbrance Reports (15 est. ) C2: Right-of--Way Services ® Easement Description/Sketch ~ Appraisals/Offer Letters/Property Owner Meetings C3: Final Design /Plans & Specifications ® Feasibility Study C4: Construction Management /Observation $28,000 - $32,000 $6,500 $34,000 - $39,000 $500 - $1,000/parcel Hourly as needed Hourly - To be Determined Hourly - To be Determined Engineer's current fee schedule with hourly rates is attached to this contract as Exhibit F. The rate schedule is for 2007, and will remain in effect for services rendered through December 31, 2007. The fee schedule will be evaluated on an annual basis by the Engineer and adjusted to account for inflation and other factors. The Engineer will submit a revised fee schedule prior to December 31 on an annual basis. The following represents the compensation terms: D.1.1 Independent Consultants The cost of services performed by independent consultants or agencies for environmental evaluation, soil testing, laboratory services, or other services will be billed to the City at the Engineer's cost with no markup. D.1.2 Payment for Revisions or Other Work If the City directs that revisions be made to the plans and specifications following approval of the plans and specifications by the City or if the City Council directs Engineer to perform other work, the Engineer shall be compensated for the cost of • such revisions at the hourly fee. The Engineer shall be given additional compensation when additions consist of enlargement or extension of the project. Exhibit D Page 1 K~01474-0BWdmmlContranWopkmsExhpcloc Additional compensation will be on the same basis as agreed to for the original plans and specifications. D.1.3 Receipt of Payment In order to receive payment for services, the Engineer shall submit monthly invoices describing in detail the services performed in accordance with this contract. Separaxe statements shall be submitted for each project or a detailed breakdown shall be furnished showing the distribution of charges to each project. The City shall pay Engineer upon receipt of each monthly invoice. For hourly and percentage of construction cost contracts, the personnel who worked on the project shall be included. Construction services shall include daily reports detailing the time for each day that the individual was working on the project. All invoices will include the City representative who authorized the work. D.1.4 Expenses Engineer shall be reimbursed for reasonable expenses related to the scope of services of this contract and/or individual projects. The Engineer shall be reimbursed for the actual cost of the expenses, without markup. Typical expenses include, but are not limited to, the following: ^ Permit fees ^ Plan and specification reproduction fees ^ Costs related to the development of project photos The following shall not be considered reimbursable expenses: ^ Mileage ^ Mobile phone usage ^ Computer equipment time ^ Preparation and reproduction of common correspondence ^ Mailing Exhibit D Page 2 Kat474-0BWdmm~ContraaWoplmisExhDdoc t i • WSB & ASSOCIATES, INC. EXHIBIT E INSURANCE SCHEDULE GENERAL LIABILITY Carrier: The Hartford Insurance Company Type of Insurance: Commercial General Liability Coverage: General Aggregate Products-Comp/Ops Aggregate Personal & Advertising Injury Each Occurrence AUTOMOBILE LIABILITY Carrier: The Hartford Insurance Company Type of Insurance: Hired Autos Non-Owned Autos Coverage: Combined Single Limit WORKER'S COMPENSATION AND EMPLOYERS' LIABILITY Carrier: The Hartford Insurance Company Coverage Statutory Each Accident Disease-Policy Limit Disease-Each Employee PROFESSIONAL LIABILITY (ERRORS AND OMISSIONS) Carrier: XL Specialty Insurance Company Coverage: $2,000,000 each claim/$4,000,000 annual aggregate Certificates of Insurance will be provided upon request. $2,000,000 $2,000,000 $1,000,000 $1,000,000 $1,000,000 $ 500,000 $ 500,000 $ 500,000 Exhibit E ~ Page 1 K\01474-OBWdnun~ContractVioplans Ezh EI doc ~~~~ & Associates, Inc. Principal $130.00 Associate $122.00 Sr. Project Manager $117.00 Project Manager II $109.00 Project Manager/Engineering Specialist III $102.00 Registered Engineer/Registered hand Surveyor/Engineering Specialist II $93.00 Project Engineer/Engineering Specialist I/Sr. Construction Observer $83.00 Engineering Technician V/Construction Observer/Grad Engineer $74.00 Engineering Technician IY/Scientist III $66.00 Engineering Technician III/Scientist II $60. DO Engineering Technician II/Scientist I $55.00 Engineering Technician I $48.00 Office Technician II $61.00 Office Technician I $32.00 Survey (Two-Person Crew/GP-S Crew) $136.00 Survey (Three-Person Crew/Expanded GPS Crew) $162.00 Costs associated with word processing, vehicle mileage, cell phones, reproduction of common correspondence and mailing are included in the above hourly rates. Reimbursable expenses include costs associated with plan, specification and report reproducer°on, permit fee, delivery cost, etc. r Rate Schedule is adjusted annually. CIT3~ OF OKINS HENNEPIN COUNTI', MINNESOTA SOLUTION 2007-020 APROVE COOPERATIVE AGREEMENT WITH NINE MILE CREEK AND ENGINEERING SERVICES AGREEMENT PROJECT N0.2006-05 WHEREAS, Nine Mile Creek Watershed is in need of various improvements as outlined in the Apri12006 Feasibility Report and such improvements have an estimated cost of $2.5 million, AND WHEREAS, The City has not budgeted for the entire cost of this project, AND EREAS, The Nine Mile Watershed District has funding available to pay for said im- provements, and has indicated a willingness to move forward with the project, AND WHEREAS, A cooperative agreement between the City and District is necessary to lay out the costs and responsibilities of both parties, NOW THEREFORE, RE IT SOLVED by the City Council of Hopkins, Minnesota, that: 1. The mayor and city manager are hereby authorized to enter into a cooperative agreement with the watershed district for funding of said improvements. 2. The mayor and city manager are hereby authorized to enter into an agreement with WSB & Associates, Inc for engineering and land acquisition services. Adopted by the City Council this 20th day of March, 2007. Eugene J. Maxwell, Mayor Terry Obermaier, City Clerk