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HomeMy WebLinkAboutLynmar Agreement SignedCooperative Agreement Between City of Edina and Nine Mile Creek Watershed District for the LYNMAR BASIN STORMWATER RETROFIT PROJECT This cooperative agreement is made by and between the City of Edina (Edina), a Minnesota municipal corporation, and Nine Mile Creek Watershed District (NMCWD), a watershed district with purposes and powers set forth in Minnesota Statutes chapters lo3B and io3D, to achieve shared goals for improving water quality in Lake Edina and reducing local flood risk through design, construction and maintenance of the Lynmar Basin Stormwater Retrofit Project. RECITALS Whereas NMCWD has authority under chapters io3B and io3D to design and implement projects to improve water quality, protect water resources and mitigate risk of and damage from flooding within the Nine Mile Creek watershed; Whereas NMCWD has an approved water-resources management plan pursuant to Minnesota Statutes chapter lo3B, and the capital improvements program in the plan calls for implementation of water-quality improvements emanating from assessment of water quality in Lake Edina, and a 2019 study completed by the NMCWD engineer recommended consideration of several measures to improve water quality in the lake; Whereas Edina and NMCWD executed a memorandum of understanding on September 17, 2019, memorializing the parties' commitment to collaborating on development and implementation of water-resource protection and improvement projects in that portion of the city within the Nine Mile Creek watershed; Whereas Edina owns and operates Bristol & Mavelle Park (the Park), a recreational and natural area upgradient of Lake Edina, which has been listed by the Minnesota Pollution Control Agency as "impaired" for the designated use of aquatic recreation due to excess nutrients (phosphorus); Whereas the 2020 Nine Mile Creek Watershed District Lake Cornelia and Lake Edina Water Quality Improvement Project, Feasibility Study/Preliminary Engineering Report prepared by the NMCWD engineer identified the Park as a potential site for stormwater best-management practices to reduce stormwater volume and pollutant-loading to Lake Edina, and at its September 21, 2021, meeting, the Edina City Council indicated support for development of the concept for a stormwater-management project in the park; Whereas in pursuit of a goal of the plan, the NMCWD engineer - with the benefit of input and guidance from Edina engineering, public works and parks staff - completed a study in February 2022 of the feasibility of a conceptual design for an expansion and enhancement of the function of an existing stormwater-management dry pond (Lynmar Basin) in the Park to reduce the volume of stormwater draining to Lake Edina and thereby reduce pollutant loading to the lake, and the study determined that grading and excavating City of Edina- 1 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 portions of the existing basin would not only promote stormwater infiltration but could also increase flood-storage capacity of the pond; Whereas the NMCWD engineer's feasibility study also determined that redirecting drainage from a subwatershed adjacent to Lynmar basin through reconfiguration of storm sewer would produce enhanced benefits estimated at 29.2 acre-feet of annual stormwater- volume reduction, 23.8 pounds of annual total phosphorus reduction and 2.0 acre-feet of flood storage volume in the basin, and the NMCWD Board of Managers at its meeting of February 16, 2022, expressed support for including the redirected drainage in the project design; Whereas the NMCWD engineer estimates the cost to retrofit the Lynmar Basin in the Park to enhance stormwater-volume reduction and water-quality treatment through increased infiltration, and to reduce flood risk for nearby properties through reconfiguration of the tributary storm sewer to convey runoff from Edina Subwatershed LE_24 (shown in Figure 1, attached to and incorporated into this agreement as a term hereof) to Lynmar Basin and providing additional flood storage in the basin (the Project) at $1,255,000, with a possible-cost range of $1,o67,00 to $1,506,000, and NMCWD has secured and dedicated $191,597 in state Watershed-Based Implementation Funding to the Project, and Edina has committed in principle to contributing the necessary rights to access and use Edina-owned property, including the Park and right-of-way in Edina Subwatershed LE_24 to construct the Project, and pay 5o percent of the cost of the design and construction work necessary to accomplish the redirection of Edina Subwatershed LE_24 to the Park, estimated by the NMCWD engineer at $238,000, as well as all of the cost of sidewalk replacement in the Park, estimated by the NMCWD engineer at $31,300; Whereas the Project will also enhance natural resources and wildlife habitat, and provide active and passive recreation opportunities within the Park, as well as educational opportunities for park users; Whereas the NMCWD Board of Managers, after considering input gathered both informally through community meetings and at a March 3, 2022, public hearing conducted in accordance with Minnesota statutes section 1o3B.231, determined that construction of the Project would constitute a cost-effective expenditure of public resources and would be conducive to public health and welfare, and ordered the Project on March 15, 2022; Whereas Edina and NMCWD are authorized by Minnesota Statutes section 471.59 to enter into this cooperative agreement for the Project; Whereas the NMCWD Board of Managers authorized the execution of this agreement at its June 15, 2022, regular meeting; and Whereas the Edina City Council authorized the execution of this agreement at its June 21, 2022, regular meeting. Now, therefore, in consideration of the foregoing recitals, which are incorporated into and made a part of this agreement, and other good and valuable consideration, Edina and NMCWD enter into this cooperative agreement to document their understanding as to the City of Edina- 2 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 scope of the Project, affirm their commitments as to responsibility for tasks to be undertaken, grant and assign the property rights necessary, establish procedures for performing these tasks and fulfilling responsibilities, and facilitate communication and cooperation to ensure successful completion of the Project to improve water quality in Lake Edina. AGREEMENT 1 DEVELOPMENT AND IMPLEMENTATION OF THE PROJECT A. Project design and specification. NMCWD will contract with the NMCWD engineer, Barr Engineering Company, for the preparation of a design, plans and specifications for the grading and excavating of the Lynmar Basin, reconfiguration of storm sewer to drain the portion of Edina Subwatershed LE_24 shown in Figure 1 to the Park, installation of a basin outlet to tie into the existing storm sewer system on Lynmar Lane, construction and reconstruction of sidewalk in the Park and establishment of vegetation in the reconstructed Lynmar Basin. NMCWD will submit the 90 percent-complete design and plans for the Project to Edina for review and approval in accordance with paragraph 3A of this agreement. The design and plans will be accompanied by detailed technical specifications for the contract documents prepared in accordance with this subsection IA for purposes of solicitation of bids for construction and establishment of the Project. The design, plans and specifications will provide for: i. Mobilization and site preparation; ii. Delineation of definitive geographic and temporal limitations on the nature and extent of clearing and grubbing and other land-disturbing activities in the Park; iii. Grading and excavating portions of the dry basin in the Park, including lowering the bottom of the basin by approximately one foot to promote stormwater infiltration and increase flood-storage capacity, and installing an outlet pipe to drain Lynmar Basin, while minimizing tree removal, especially the perimeter trees that screen the Park from the France Avenue commercial district, maintaining a portion of the Park for passive recreation, minimizing potential for loitering in the Park and avoiding increasing the risk of flooding, including flooding of basements proximate to the Park; iv. Disturbance, excavation and street reconstruction in city right-of-way, including modification of catch basins and associated pipe, installation of high-capacity inlets in Edina Subwatershed LE_24 and reconstruction of storm sewer at the intersection of Hazelton Road and Lynmar Lane, to route runoff to Lynmar Basin, along with restoration through patching of concrete street sections, which will be separately delineated in the 90 percent plans and construction documents to facilitate reimbursement of the costs of such City of Edina- 3 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 construction and reconstruction by Edina, as provided in paragraph 2C.i herein; v. Disturbance, excavation and street reconstruction in the Lynmar Lane right- of-way for installation of the outlet pipe from Lynmar Basin to the existing storm sewer, along with restoration through patching of concrete street sections disturbed by the Project, which will be separately delineated in the 90 percent plans and construction documents to facilitate reimbursement of the costs of such construction and reconstruction by Edina, as provided in paragraph 2C.i herein; vi. Restoration of the Park, including seeding and planting, establishment of turf and other steps necessary to ensure continued functionality in keeping with the continuing use of the Park for public recreational and aesthetic purposes, including construction and reconstruction of sidewalk within the Park, which will be separately delineated in the 90 percent plans and construction documents to facilitate reimbursement of the costs of such construction and reconstruction by Edina, as provided in paragraph 2C.ii herein; and vii. Establishment and maintenance of vegetation to promote infiltration in Lynmar Basin for three years from the date of substantial completion of construction of the Project. Altogether, the work described in paragraphs iA.i through vii constitutes what is referred to herein as "the Contracted Work." The designs, plans and specifications will include an exhibit or exhibits delineating access and construction areas in the Park, as well as access and construction areas in the right-of-way in Edina Subwatershed LE_24 (referred to herein as the Right-of-Way) needed for the Project for purposes of Edina's grant of property-use rights for the Project as provided in paragraph 3B. B. Implementation of the Contracted Work. On Edina's approval of the design and plans as provided in paragraph 3A herein and completion of the necessary specifications by the NMCWD engineer, NMCWD will contract, in accordance with applicable public procurement law, for the conduct of the Contracted Work. i. In contracting for conduct of the Contracted Work, NMCWD will require that: a. The contractor restrict all of its activities to the portions of the Park and Right-of-Way designated for access and construction by Edina in accordance with subsection IA and subsection 2B herein. b. The contractor name Edina as an additional insured for general liability with primary and noncontributory coverage and provide a certificate showing same prior to start of construction. City of Edina- 4 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 c. The contractor indemnify, defend and hold harmless Edina, its officers, 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. d. The contractor extend all warranties under the agreement to Edina. e. The contractor assess the need for and obtain all permits and other regulatory approvals applicable to the Contracted Work on behalf of NMCWD and Edina, except as may be specified in the contract documents as the responsibility of NMCWD or Edina. ii. Either NMCWD or the NMCWD engineer on NMCWD's behalf will provide construction oversight for and otherwise oversee implementation of the Contracted Work. NMCWD may adjust the plans and specifications for the Contracted Work during implementation, as long as the revisions: a. Do not require NMCWD to exceed the scope of the rights granted to it under this agreement; b. are made in consultation with Edina to ensure compatibility of the Contracted Work with Edina's continued operation of Edina Subwatershed LE_24 and the Park for their customary public transportation and recreational purposes; and c. do not expand Edina's maintenance responsibilities or its costs to fulfill same under this agreement; unless Edina approves any such changes in writing. iii. NMCWD will timely engage and consult Edina on material changes to the design, plans and specifications for the Contracted Work, if any, after Edina's approval in accordance with paragraph 3A herein. iv. Completion of implementation of items 1.A.i through vi in material conformance with the design, plans and specifications will constitute substantial completion of the Project, and the contractor or NMCWD engineer, at NMCWD's direction, will complete a certificate of substantial completion and as-built survey drawings of the Contracted Work. NMCWD will timely provide a copy of a certificate of substantial completion to Edina. v. Until substantial completion of the Contracted Work for the purposes intended, if NMCWD, in its judgment, should decide that the Project is infeasible, NMCWD, at its option, may declare the agreement rescinded and annulled. If NMCWD so declares, all obligations herein, performed City of Edina- 5 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 or not, will be voided and, if land-disturbing activities for the Project have commenced, NMCWD will return the Park and Right-of-Way materially to its prior condition or to a condition agreed to in writing by Edina and NMCWD. C. Maintenance planning and implementation. The Project includes and the parties will collaborate on the development and implementation of a maintenance plan as follows: i. NMCWD will contract with the NMCWD engineer for the development, in collaboration with Edina, of specific written procedures and protocols for maintenance and monitoring the performance of the Project (the Maintenance Plan). The Maintenance Plan will provide, at a minimum, for maintenance of vegetation in the reconstructed Lynmar Basin after vegetation is established and maintained for three years by the contractor, as described in paragraph i.A.vii of this agreement. NMCWD, or the NMCWD engineer on NMCWD's behalf, will submit the final draft Maintenance Plan for Edina's review and approval in accordance with paragraph 3B herein. ii. Edina will complete or contract for the completion of routine maintenance of the Project in accordance with the Maintenance Plan, once approved pursuant to paragraph 3B herein. D. Education and outreach, publicity and endorsement. Edina and NMCWD will collaborate on development and production of outreach, education and publicity materials regarding the Project. NMCWD and Edina will collaborate on the development of educational and informational signage pertinent to the Project, and either party, at its cost, may develop, produce and distribute educational, outreach and publicity materials related to the Project, and may install, maintain, replace or remove signage in the Park related to the Project. All such signage and materials, whether produced by NMCWD or Edina, will include acknowledgement of the funding and participation of the other party in the Project and of any grant funding received for the Project, including but not limited to signage necessary to comply with requirements imposed by the use of state grant funds for the Project. For purposes of this paragraph, "publicity" includes notices, informational printed materials, press releases, research reports, signs and other public notices, whether electronic or printed. E. Ownership of the Contracted Work. On substantial completion of the construction of the Project, ownership of all equipment and materials installed on and incorporated into the Park and the Right-of-Way for the Project will vest in Edina. 2 COSTS City of Edina- 6 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 A. Except as specifically provided in this section, each of the parties will bear the costs of enforcing its rights and fulfilling its responsibilities under this agreement, as well as incidental costs. And in the event of cancellation, the parties will bear all costs incurred by each of them prior to NMCWD's issuance of notice to Edina in accordance with paragraph 1B.v herein. B. NMCWD will be responsible for all costs of design, specification, construction and construction management of the Contracted Work and development of the Maintenance Plan, except that: i. NMCWD will be responsible for only 5o percent of the documented costs of design, planning, specification and implementation of the work described at i.A.iv and v of this agreement; ii. NMCWD will not be responsible for any of the cost of construction or reconstruction of sidewalks in the Park completed as part of the Contracted Work; and iii. grant funding secured by NMCWD for the Project will offset NMCWD costs exclusively, and NMCWD will be responsible for compliance with all grant requirements. In addition, NMCWD will not be responsible for any of the cost of routine maintenance of the Project. C. Edina will be responsible for: i. 5o percent of the documented costs of design, planning, specification and implementation of the work described at i.A.iv and v of this agreement; ii. all costs of construction and reconstruction of sidewalks in the Park completed as part of the Contracted Work; and iii. All costs of routine maintenance of the Contracted Work as defined by and in accordance with the Maintenance Plan. In addition, Edina will contribute the property-access and -use rights necessary for the Project at no out-of-pocket cost to NMCWD. Edina will reimburse NMCWD for the portion of any costs for which it is responsible, and NMCWD will submit documentation of costs to support reimbursement, which will be rendered within 35 days of submission of all necessary documentation. 3 EDINA'S FURTHER RIGHTS AND RESPONSIBILITIES, AND GRANT OF RIGHTS FOR ACCESS, CONSTRUCTION AND MAINTENANCE A. Edina will have seven business days after receipt to review and approve the 90 percent complete design and plans for the Contracted Work provided in accordance with subsection IA herein. The design and plans, when approved by Edina pursuant to this paragraph 3A, will be incorporated into and become a term of this agreement. Failure to act within the specified time will constitute approval. City of Edina- 7 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 B. In addition to its right to consult on the development of the Maintenance Plan, Edina will have 6o days from receipt to review and approve the final draft Maintenance Plan submitted in accordance with paragraph iC.i herein. Failure to act within the specified time will constitute approval. Edina's approvals under this agreement will not be unreasonably withheld. C. Grant of land-use rights. Edina will grant to NMCWD, its contractors, agents and assigns nonexclusive rights to access and use the portions of the Park and the Right-of-Way necessary for access, construction and maintenance of the Project, and otherwise as necessary to fulfill NMCWD's obligations and exercise its rights under this agreement. The geographic scope and term of the rights granted by Edina to NMCWD to enter and use will be specified in documentation submitted by NMCWD to Edina for review and approval in writing at least 3o days prior to commencement of construction, such written approval not to be unreasonably withheld. The land-use rights to be granted by Edina will include the right of NMCWD, on reasonable notice to and with the assistance of Edina, to temporarily restrict or preclude public access to portions of the Park and Right- of-Way to ensure safety while construction or maintenance activities are under way. i. Notwithstanding that the grant of land-use rights described above is nonexclusive, Edina further agrees that it will forbear from any activity that materially interferes with NMCWD's ability to exercise its rights or meet its obligations under this agreement. Subject to its interest in preserving public safety, Edina will facilitate NMCWD's reasonable exercise of its rights under this agreement with regard to access to and use of the Park and the Right-of- Way, including but not limited to the right to place signage within the Park and Right-of-Way to facilitate effective and safe implementation of the Project. Edina will not take any action within or adjacent to the Park or Right- of-Way that could reasonably be expected to diminish the effectiveness or function of the Project for the purposes intended. D. The Project will include the design and implementation of the retrofit of the Lynmar Basin, but Edina will retain sole authority over and financial and other responsibility for the development and implementation of plans and specifications for art, park signage, lighting and other accessory elements in the Park related to the Project. Edina will forbear from any activity that interferes with NMCWD's ability to exercise its rights or meet its obligations under this agreement. Edina will facilitate NMCWD's reasonable exercise of its rights under this agreement with regard to access to and use of the Park and/or the Right-of- Way. Edina will not take any action within the Park or the Right-of-Way that could reasonably be expected to diminish the effectiveness or function of the Project for the purposes intended, including but not limited to Edina's conveyance of ownership of the Park or the Right-of-Way. E. Edina, as owner of the Park and the Right-of-Way, will cooperate with NMCWD's and its contractor's efforts to obtain permits and approvals needed City of Edina- 8 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 for the Project and authorizes NMCWD to apply for such permits and approvals on its behalf. Edina, in its regulatory capacity, will facilitate the proper and efficient processing of any permits and approvals needed for the Project. F. Edina may conduct data-collection and analysis on the performance of the Project or utilize data collected by either of the parties under the terms of this agreement with regard to reduction of loading of phosphorus and other pollutants to Lake Edina, and may apply any and all credit generated by the Project toward its obligations, goals and requirements imposed by state or federal regulatory programs, such as the National Pollutant Discharge Elimination System as applied to Edina. G. Edina will cooperate with NMCWD in all communications and outreach to property owners affected by or interested in the Project, and will support to the best of its ability and capacity NMCWD's grant-related compliance and reporting requirements. 4 NMCWD's FURTHER RIGHTS AND COMMITMENTS A. As between the parties and with the support of Edina as stated in paragraph 3E herein, NMCWD will obtain all necessary permits, licenses and approvals, and will ensure that the Project is completed in accordance with applicable law and regulatory standards and criteria. B. NMCWD makes no warranty to Edina regarding the NMCWD engineer's or another third party's performance in design, construction or construction management for the Project. C. NMCWD will contract for the construction of the Contracted Work in accordance with applicable public-procurement law, as determined by NMCWD. 5 GENERAL TERMS A. Independent Relationship; Liability. This agreement does not create a joint powers board or organization within the meaning of Minnesota Statutes section 471.59. Each party agrees that it will be responsible only for its own acts and the results thereof to the extent authorized by the law and will not be responsible for the acts or omissions of the other party and the results thereof. The duty of each party to indemnify does not constitute and will not be construed as a waiver by either entity of any exemptions, immunities, or limitations on liability provided by law or of being treated as a single governmental unit as provided in Minnesota Statutes section 471.59, subdivision ia.Only contractual remedies are available for the failure of a party to fulfill the terms of this 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. City of Edina- 9 June 21, 2022 Nine Mile Creek Watershed District Lytunar Basin Stormwater Retrofit 222083v1 Edina and NMCWD enter this agreement solely for the purposes of construction and maintenance of the Project to improve water quality in Lake Edina and mitigation of flood risk in the area adjacent to the Park. Accordingly, with respect to any and all activity undertaken pursuant to this agreement. Edina and NMCWD each agree to hold the other harmless, and defend and indemnify the other, its officers, employees and agents against all claims, damages, liabilities, losses and expenses asserted against the other party at any time by a third party, including any governmental body. To the fullest extent permitted by law, this agreement and the activities carried out hereunder are intended to be and shall be construed as a "cooperative activity" and in undertaking the activities Edina and NMCWD are a "single governmental unit" for the purposes of liability, as set forth in Minnesota Statutes section 471.59, subdivision la. NMCWD does not have, has not had, and 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 Park. NMCWD does not exercise, has not exercised, and 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 Park or the Right-of-Way, or in property adjacent to the Park or Right-of-Way prior to the commencement of construction of the Project such as would render NMCWD a potentially responsible party for any contamination under state or federal law. B. Complete agreement. This agreement, as it may be amended in writing, constitutes the entire agreement between the parties for the Project. Any amendment to this agreement must be in writing and will not be effective until it has been executed and approved by the same parties who executed and approved the original agreement or their successors in office. C. Notice; coordination. The parties designate the following authorized representatives to serve as the liaison to the other party for purposes of coordination of all work involved in or related to the Project as provided in this agreement. Any written communication required under this agreement will be addressed to the other party as follows, except that either party may change its address for notice by so notifying the other party in writing: To Edina: Director Engineering City of Edina 745o Metro Blvd. Edina MN 55439 952-826-0371 Director Parks and Recreation City of Edina- 10 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 City of Edina 4801 West 50th St. Edina MN 55424 952-826-0367 To NMCWD: Administrator Nine Mile Creek Watershed District 12800 Gerard Drive Eden Prairie, MN 55346 952-835-2078 D. Waiver. Waiver by Edina 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. E. Term and termination. This agreement will remain effective when fully executed and will remain in force for four years from the date of complete execution, unless terminated by mutual agreement of the parties or otherwise in accordance with the terms of this agreement. Any right, responsibility or obligation that has come into being before expiration will survive expiration. [Signature page follows.] City of Edina- 11 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 IN WITNESS WHEREOF, the parties have executed this agreement, intending to be legally bound. Nine Mile Creek Watershed District a political subdivision of the State of Minnesota /Wee Caefhe Date: Jun 22, 2022 Robert Cutshall (Jun 22, 2022 21:41 CDT) By Robert Cutshall Its President Approved as to form and execution NMCWD counsel City of Edina a Minnesota municipal corporation Date: Jun 23, 2022 By James Hovland Its Mayor Al AA t., Date: G By Lisa c aefer Its Assistant City Manager City of Edina- 12 June 21, 2022 Nine Mile Creek Watershed District Lynmar Basin Stormwater Retrofit 222083v1 Figure 1 Edina Subwatershed LE_24 222083v1 0 330 Feet FIGURE 1 Legend Subwatershed LE_24 Parcels Barr Footer: ArcGIS 10.8.1, 2022-05-16 14:45 File: I:\Client\ Nine_Mile_Creek_WD \Work Orders\23271932 LynmarBasinDesi n\L nmarA9reement _Figure_newLE_24.mxd User: 'mk2