Loading...
IV.6. Approval of Repair and Maintenance Addendum to Cooperative Agreement Between City of Hopkins and Nine Mile Creek Watershed District (NMCWD); Klingbeil CITY OF HOPKINS City Council Report 2023-061 To: Honorable Mayor and Council Members Mike Mornson, City Manager From: Eric Klingbeil, City Engineer Date: June 6, 2023 Subject: Approve Repair and Maintenance Addendum to Cooperative Agreement Between City of Hopkins and Nine Mile Creek Watershed District (NMCWD) _____________________________________________________________________ RECOMMENDED ACTION MOTION TO Adopt Resolution 2023-019, Approving Repair and Maintenance Addendum to Cooperative Agreement between Nine Mile Creek Watershed District (NMCWD) and City of Hopkins. OVERVIEW The City of Hopkins and NMCWD entered into a cooperative agreement dated December 7, 2011 to implement the Nine Mile Creek Stabilization Project. This project stabilized the streambank of Nine Mile Creek through a portion of Hopkins. The project achieved its intended purposes, but there are small segments that need repair. The original Cooperative Agreement covers “Ordinary Maintenance”, but the repairs needed could be construed to fall out of the “Ordinary Maintenance” category. This Addendum will provide for the repair and maintenance of the stabilized areas needing repair to fulfil the original intent and terms of the Cooperative Agreement to ensure the continued integrity and effectiveness of the project. Staff has reviewed the agreement and find it acceptable. SUPPORTING INFORMATION Repair and Maintenance Addendum Resolution 2023-019 Engineering CITY OF HOPKINS HENNEPIN COUNTY, MINNESOTA RESOLUTION 2023-019 RESOLUTION APPROVING REPAIR AND MAINTENANCE ADDENDUM TO COOPERATIVE AGREEMENT BETWEEN NINE MILE CREEK WATERSHED DISTRICT (NMCWD) AND CITY OF HOPKINS WHEREAS, The City of Hopkins and the NMCWD entered into a Cooperative Agreement on December 7, 2011 for streambank stabilization of Nine Mile Creek within Hopkins; and WHEREAS,repair is needed to a stretch of the improved streambank to ensure its integrity and continuing effective of the stabilization; and NOW THEREFORE BE IT RESOLVED, The City of Hopkins and NMCED are authorized by Minnesota Stat. Sec. 471.59 to enter into this cooperative repair and maintenance addendum; and BE IT FURTHER RESOLVED, The Mayor Pro Tempore and City Manager are hereby authorized and directed for and on behalf of the City to execute and enter into this Repair and Maintenance Addendum to the Cooperative Agreement dated December 7, 2011 with the NMCWD, a copy of which said agreement was before the City Council and which is made a part hereof by reference. Adopted by the City Council of the City of Hopkins this 6th day of June, 2023. By:___________________________ Brian Hunke, Mayor Pro Tempore ATTEST: _______________________________ Amy Domeier, City Clerk Cooperative Agreement Between the City of Hopkins and Nine Mile Creek Watershed District NINE MILE CREEK BANK STABILIZATION AND HABITAT ENHANCEMENT PROJECT – HOPKINS Repair & Maintenance Addendum This cooperative agreement is made by and between the City of Hopkins, a home rule charter city under Article XII of the Minnesota Constitution (Hopkins), and Nine Mile Creek Watershed District, a special purposes unit of government created pursuant to Minnesota Statutes chapters 103B and 103D (NMCWD), for purposes of effecting repairs to and providing for the long-term ongoing maintenance of the Nine Mile Creek streambank- stabilization project substantially completed by the parties in 2012. Recitals Whereas NMCWD has authority under chapters 103B and 103D to design and implement projects to improve water quality, protect water resources and mitigate risk of flooding within the Nine Mile Creek watershed; Whereas pursuant to its then-adopted watershed management plan and NMCWD’s February 18, 2009, grant of an amended petition filed by Hopkins, NMCWD successfully implemented the Nine Mile Creek Stabilization Project, stabilizing the streambanks of Nine Mile Creek as it flows through the city to improve water quality in Nine Mile Creek and restore habitat within the riparian corridor (the Project); Whereas the Project was implemented in collaboration with the City of Hopkins and in accordance with the terms of cooperative agreement entered into by the parties and finally agreed to as amended and restated December 7, 2011 (the Cooperative Agreement), and construction of the Project was substantially completed in accordance with the Cooperative Agreement, which has expired on its terms; Whereas the Project was constructed on private property under land-use rights held by Hopkins and NMCWD and on land owned in fee by Hopkins and the City of Minnetonka; Whereas the Cooperative Agreement provided for the collaborative development by Hopkins and NMCWD of a post-construction maintenance plan for the Project, but such plan has not yet been completed and the Cooperative Agreement provides – in paragraph 3.2.7 – only for ongoing “ordinary maintenance” of the Project by Hopkins; Whereas while the Project achieved its intended purposes, repair is needed to a stretch of the improved streambank in Hopkins’ Valley Park that has destabilized and eroded, as shown and labeled “Project Area” in Exhibit A (the Valley Park Repair), attached to and made a part of this agreement, to ensure its integrity and continuing effectiveness of the Project in Valley Park and as a whole; J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 2 – Repair & Maintenance Addendum Whereas the parties wish to develop and implement inspection and maintenance protocols, along with a corresponding schedule, to fulfill the intent and terms of the Cooperative Agreement to ensure the continued integrity and effectiveness of the Project; Whereas Hopkins and NMCWD are authorized by Minnesota Statutes section 471.59 to enter into this cooperative repair and maintenance addendum for the Project; Whereas the NMCWD Board of Managers authorized the execution of this agreement at its June 1, 2023, workshop meeting; and Whereas the Hopkins City Council authorized the execution of this agreement at its June 6, 2023 regular meeting. Repair and Maintenance Agreement Now therefore, in consideration of the foregoing recitals, which are incorporated into and made a part of this agreement, Hopkins and NMCWD acknowledge that their mutual and abiding interest in ensuring the effectiveness of the Project provides sufficient consideration for this agreement. And the parties enter into this repair and maintenance agreement to document their understanding as to the scope of both the Valley Park Repair and long-term maintenance of the Project, affirm their responsibilities for tasks to be undertaken, grant and assign the property necessary, establish procedures for performing these tasks and fulfilling responsibilities, and facilitate communications and cooperation to ensure the continuing effectiveness of the Project. 1 Valley Park Repair a. Under contract with NMCWD, Barr Engineering prepared the plans and design drawings attached to and incorporated into this agreement as Exhibit B, providing for stabilization of the streambank erosion in Valley Park through removal of root wads installed as part of the Project and restoration of the streambank at a 2:1 slope, conforming to the design of the Project and incorporating cobble-size stone toe protection, as well as erosion-control measures and reestablishment of native vegetation. b. By the signature of its authorized representative(s) hereunder, Hopkins approves the plans and design drawings for the Valley Park Repair in Exhibit B. c. Under contract with NMCWD, Barr Engineering will also prepare the additional plans and specifications necessary to solicit a contractor for the completion of the repair work shown in Exhibit B, and will provide construction oversight for the Valley Park Repair and completion and certification of as-built drawings of the Valley Park Repair. d. NMCWD will solicit quotes for, select a contractor and enter a contract for implementation of the Valley Park Repair in accordance with applicable public- procurement law. The contract for construction of the Valley Park Repair will provide that on completion of the Valley Park Repair, all Hopkins property accessed J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 3 – Repair & Maintenance Addendum and improved as provided in paragraph 1b of this agreement will be restored to a condition materially equivalent to preexisting conditions, except to the extent that the property is improved by completion of the Valley Park Repair. e.Land-use rights. The design, plans and specifications prepared in accordance with paragraphs 1a and 1c of this agreement will provide for work exclusively in Valley Park, which is owned in fee by Hopkins, and by the signature of its authorized representative hereunder Hopkins conveys to NMCWD, its contractors, agents and assigns a nonexclusive temporary license to access and use Valley Park, and adjacent city streets for purposes of completing the Valley Park Repair. NMCWD, on reasonable notice to Hopkins, may temporarily restrict or preclude public access to and in Valley Park and adjacent streets to ensure safety while Valley Park Repair activities are under way. Hopkins will forbear from any activity that unreasonably interferes with NMCWD’s ability to exercise its rights or meet its obligations to complete the Valley Park Repair under this agreement, including the transfer of ownership of any Hopkins-owned property. Subject to its interest in preserving public safety, Hopkins will facilitate NMCWD’s reasonable exercise of its rights under this agreement with regard to access to and use of Valley Park. Hopkins will not take any action within or adjacent to Valley Park that could reasonably be expected to diminish the effectiveness or function of the Valley Park Repair for the purposes intended. f. Within 90 days of certification of the Valley Park Repair as substantially complete for the intended purposes, NMCWD will provide as-built drawings of the repaired streambank to Hopkins. g. On completion of the Valley Park Repair, Hopkins will retain ownership of the improvements to Valley Park, and will provide routine maintenance of the Project in accordance with the Maintenance Plan developed in accordance with section 2 of this agreement. 2 Maintenance Plan – development and implementation a. In conjunction with completion of the Valley Park Repair, Hopkins and NMCWD will collaborate on the development and implementation of a schedule and specifications for routine inspection and upkeep of the Project (the Maintenance Plan) in fulfillment the relevant terms of the Cooperative Agreement and in accordance with the following: i. NMCWD will contract with the NMCWD engineer for the development, in collaboration with Hopkins, of specific written procedures and protocols for routine monitoring and maintenance of the integrity and performance of the Project as repaired by the Valley Park Repair and on the City of Hopkins and privately owned properties shown in the scaled site plan attached hereinto and incorporated herein as Exhibit C (altogether, the Maintenance Properties). The schedule, specifications and protocols will constitute the Maintenance Plan. The Maintenance Plan will provide, at a minimum, for maintenance of constructed J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 4 – Repair & Maintenance Addendum streambank-stabilization practices and vegetation established as part of the Project and Valley Park Repair to ensure the continued integrity and function for the intended purposes. The Maintenance Plan will also provide for recordkeeping and reporting on the condition of the Project and maintenance work completed. ii. NMCWD, or the NMCWD engineer on NMCWD’s behalf, will submit the final draft Maintenance Plan to Hopkins for review and approval in accordance with paragraph 5.3 herein below. iii. Hopkins will complete or contract for the completion at its sole expense of routine maintenance of the Project as defined and specified in the Maintenance Plan. b.Land-use rights for maintenance. The Maintenance Plan will provide for the conduct of routine maintenance of the Project on the Maintenance Properties. To facilitate the implementation of the Maintenance Plan, Hopkins will assess whether extant land-use rights allow it to fulfill its obligations under the Maintenance Plan, and will obtain such additional land-use rights as it determines necessary to maintain the Project in accordance with the Maintenance Plan. Hopkins will timely advise NMCWD of any inability to obtain land-use rights necessary to implement the Maintenance Plan, and the parties will collaborate to pursue means to obtain such rights. c.Major repair and maintenance. The parties will jointly and in good faith determine the need for and means to accomplish repair of the Project beyond the scope of the Valley Park Repair and routine maintenance specified in the Maintenance Plan. 3 Cost-Sharing 3.1 In fulfillment of the relevant provisions of its contract with Barr Engineer, NMCWD will pay the contracted costs of development and finalization of the design, plans and specifications and construction oversight for the Valley Park Repair, and completion of as- built drawings, as provided in paragraphs 1a and 1c, as well as the development of the Maintenance Plan, as described in section 2 of this agreement. In fulfillment of the relevant provisions of its contract with the contractor selected in accordance with paragraph 1d of this agreement, NMCWD will pay the contracted costs of implementation of the Valley Park Repair. 3.2 On receipt from NMCWD of proofs of payment and such other documentation as may be reasonably required by Hopkins for the purpose, Hopkins will reimburse NMCWD 50 percent of all contracted costs described in paragraph 3.1 herein. The parties will work in good faith to determine the need and cost-sharing for repair of the Project beyond the Valley Park Repair, as needed, and maintenance and repair beyond the routine maintenance specified in the Maintenance Plan. J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 5 – Repair & Maintenance Addendum 3.3 Each party will pay the internal and incidental costs incurred to fulfill its obligations under this agreement for the Valley Park Repair and development and implementation of the Maintenance Plan not otherwise specified as subject to cost-sharing described herein. 4 NMCWD – additional specific rights and duties 4.1 As provided in paragraph 1a and 1c, NMCWD will contract with the NMCWD engineer for the development of the design of the Valley Park Repair, along with the plans and specifications and all other necessary construction documentation and as-built drawings, and, in accordance with paragraph 1d, will contract for the implementation of the Valley Park Repair. As provided in paragraph 2a.i, NMCWD will contract with the NMCWD engineer for the development of the Maintenance Plan. Notwithstanding, NMCWD makes no warranty to Hopkins regarding the NMCWD engineer’s, the contractor’s or any another third party’s performance in design, construction or construction management for the Project, the Valley Park Repair or the Maintenance Plan. 4.2 NMCWD will contract for the implementation of the Valley Park Repair with a qualified and responsible contractor, as determined by NMCWD in its sole discretion. The contract for the implementation of the Valley Park Repair will: a. Require the contractor to indemnify, defend and hold harmless Hopkins, its officers, council members, employees and agents from any and all actions, costs, damages and liabilities of any nature arising from the contractor’s negligent or otherwise wrongful act or omission, or breach of a specific contractual duty, or a subcontractor’s negligent or otherwise wrongful act or omission, or breach of a specific contractual duty owed by the contractor to NMCWD. The contract will require that for any claim subject to indemnification by an employee of selected contractor or a subcontractor, the indemnification obligation is not limited by a limitation on the amount or type of damages, compensation or benefits payable by or for the contractor or a subcontractor under workers’ compensation acts, disability acts or other employee benefit acts. b. Require that the contractor name Hopkins as an additional insured with primary coverage for general liability on a noncontributory basis for both ongoing work and completed operations to the extent of NMCWD’s statutory liability limit. c. Extend the contractor’s warranties under the contract, if any, to Hopkins. 4.3 As between the parties and with the assistance and cooperation of Hopkins, NMCWD will obtain all permits, licenses and other necessary approvals for the Valley Park Repair for itself and Hopkins from entities with regulatory authority, as determined by NMCWD, and will ensure that the Valley Park Repair is completed in accordance with applicable law and regulatory standards and criteria. 4.4 NMCWD may adjust the plans and specifications for the Valley Park Repair during implementation with notice to Hopkins, as long as the revised plans do not require NMCWD to exceed the scope of the rights granted under this agreement. Until completion of the Valley Park Repair, if NMCWD, in its judgment, should decide that the Valley Park J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 6 – Repair & Maintenance Addendum Repair is infeasible, NMCWD, at its option, may declare the agreement rescinded and annulled. If NMCWD so declares, all obligations herein, performed or not, will be void; NMCWD will return any portions of Valley Park disturbed by activities meant to effect the Valley Park Repair to their preexisting conditions or to a condition agreed on by Hopkins and NMCWD. 5 Additional specific rights and duties – Hopkins 5.1 Hopkins will cooperate with NMCWD’s efforts to obtain permits and approvals needed for the Valley Park Repair and act to facilitate proper and efficient processing of applications for city approvals. 5.2 Hopkins will timely reimburse NMCWD in accordance with paragraph 3.2 of this agreement for its portion of expenditures made in accordance with sections 1 and 2 and paragraph 3.1. 5.3 Hopkins will work in collaboration with NMCWD to develop the draft Maintenance Plan and will approve the final draft Maintenance Plan within 45 days of submission of the final draft by NMCWD or on NMCWD’s behalf to Hopkins, such approval not to be unreasonably withheld. Failure by Hopkins to timely act on its rights and obligations under this paragraph will constitute approval of the Maintenance Plan. If Hopkins disapproves the Maintenance Plan, Hopkins will become solely responsible for maintenance of the Project and Valley Park Repair to ensure continued effective function for the intended purposes. On approval of the Maintenance Plan, Hopkins will perform or contract for the performance of all routine maintenance and monitoring of the Project, along with reporting as may be required by the Maintenance Plan. Hopkins will notify NMCWD of any need for major repair or maintenance of the Project (beyond the scope of the Maintenance Plan), and the parties in good faith will develop a collaborative approach to designing and implementing major repairs or maintenance. 5.4 Hopkins will obtain all regulatory and other approvals necessary for implementation of the Maintenance Plan in accordance with applicable law and regulatory standards and criteria. 6 General Terms 6.1 LEGAL RELATIONSHIP TO COOPERATIVE AGREEMENT. The rights and responsibilities of the parties under the terms of this agreement are independent of and in addition to any obligations assigned under the Cooperative Agreement, and where any term hereof explicitly modifies a term or terms of the Cooperative Agreement, the terms in this agreement prevail. 6.2 INDEPENDENT RELATIONSHIP; LIABILITY. This agreement does not create a joint powers board or organization within the meaning of Minnesota Statutes section 471.59, and neither party agrees to be responsible for the acts or omissions of the other pursuant to subdivision 1(a) of the statute. Only contractual remedies are available for the failure of a party to fulfill the terms of this agreement. Hopkins and NMCWD enter this agreement solely for the purposes of improving the ecological health and condition of Nine Mile Creek in Hopkins. J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 7 – Repair & Maintenance Addendum Accordingly, with respect to any and all activity undertaken pursuant to this agreement, Hopkins and NMCWD will each hold harmless, defend and indemnify the other, its officers, employees and agents for all claims, damages, liabilities, losses and expenses asserted against the other party at any time by any third party, including any governmental body. Notwithstanding the foregoing or any other provision of this agreement, Hopkins’s and NMCWD’s obligations under this paragraph will survive the termination of the agreement. This agreement creates no right in and waives no immunity, defense or liability limitation with respect to any third party. As between the parties, only contract remedies are available for a breach of this agreement. Notwithstanding the foregoing, NMCWD will not be deemed to have acquired by entry into or performance under this agreement, any form of interest or ownership in or to any portion of the land that is the site of the construction of the Project or adjacent property. NMCWD will not by entry into or performance under this agreement be deemed to have exercised any form of control over the use, operation or management of any portion of the property that is the site of the Project or adjacent property so as to render NMCWD a potentially responsible party for any contamination under state and/or federal law. 6.3 PUBLICITY AND ENDORSEMENT. Any publicity regarding the Project, Valley Park Repair or the Maintenance Plan must identify Hopkins and NMCWD as the sponsoring entities. For purposes of this provision, publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for Hopkins or NMCWD individually or jointly with others, or any subcontractors, with respect to the Project. NMCWD and Hopkins will collaborate on the development of educational and informational signage pertinent to the Project, and each party, at its cost, may develop, produce and, after approval of the other party, distribute educational, outreach and publicity materials related to the Project, Valley Park Repair and Maintenance Plan. 6.4 DATA MANAGEMENT. All designs, written materials, technical data, research or any other work-in-progress will 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 for recordkeeping and other necessary purposes. 6.5 DATA PRACTICES. All data created, collected, received, maintained, or disseminated for any purpose in the course of this agreement is governed by the Data Practices Act, Minnesota Statutes chapter 13, any other applicable state statute, or any state rules adopted to implement the act, as well as federal regulations on data privacy. 6.6 ENTIRE AGREEMENT. This agreement, as it may be amended in writing, contains the complete and entire agreement between the parties relating to the subject matter hereof, and supersedes all prior negotiations, agreements, representations and understandings, if any, between the parties respecting such matters. The recitals stated at the outset are incorporated into and a part of the agreement. J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 8 – Repair & Maintenance Addendum 6.7 WAIVERS. The waiver by Hopkins or NMCWD of any breach or failure to comply with any provision of this agreement by the other party will not be construed as nor will it constitute a continuing waiver of such provision or a waiver of any other breach of or failure to comply with any other provision of this agreement. 6.8 NOTICES. Any notice, demand or communication under this agreement by either party to the other will be deemed to be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid to: Hopkins NMCWD Eric Klingbeil, City Engineer Randall J. Anhorn, Administrator City of Hopkins 12800 Gerard Drive Eklingbeil@HOPKINSmn.com Eden Prairie, MN 55346 952-548-6357 ranhorn@ninemilecreek.org; 952-835-2078 6.9 TERM; TERMINATION. This agreement is effective on execution by both parties and will terminate three years from the date of execution of the latest amendment hereto or on the written agreement of both parties, except that obligations and responsibilities incurred prior to the expiration or termination of this agreement will remain valid and enforceable. (Signature page follows.) J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 9 – Repair & Maintenance Addendum IN WITNESS WHEREOF, the parties have caused the agreement to be duly executed intending to be bounded thereby. City of Hopkins _______________________________ _________________, Mayor Pro Tempore Date: ______________________________ _______________________________ _________________, City Manager Date: ______________________________ Approved as to form & execution: _____________________________ City attorney Nine Mile Creek Watershed District ___________________________________ Robert Cutshall, President Date: ______________________________ Approved as to form & execution: _____________________________ NMCWD counsel J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 10 – Repair & Maintenance Addendum EXHIBIT A Valley Park Repair Site J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 11 – Repair & Maintenance Addendum EXHIBIT B Plans and Design – Valley Park Repair J Hopkins-NMCWD Nine Mile Creek Stabilization Project Cooperative Agreement 12 – Repair & Maintenance Addendum EXHIBIT C The Maintenance Properties