1b Master Utility Agmt TH 212
CITY OF
CHAN HAS SEN
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The City of Chanhassen · A
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MEMORANDUM
TO:
Todd Gerhardt, City Manager
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FROM:
Paul Oehme, City Engineer/Dir. of Public Works
DATE:
October 27, 2004
SUBJ:
Consider Approval of Master Utility Agreement (MUA) and Resolution
with MnDOT for the TH 212 Project No, 03-09
REQUESTED ACTION
Approval of the Master Utility Agreement and resolution with MnDOT for the TH 212
Project No. 03-09.
DISCUSSION
On March 22, 2004, City Council adopted a resolution for municipal consent that
approved the layout of the new TH 212. This approval gave MnDOT the authority to
move forward with the design and begin solicitation of bids.
The City currently maintains existing utilities, such as sewer and watermains, within
MnDOT, County and City right-of way along the TH 212 corridor. Some of these
utilities will need to be relocated or adjusted to facilitate the construction of new TH 212.
The attached agreement outlines MnDOTs, the Contractor's and the City of
Chanhassen's responsibility in relation to the existing utility relocation or adjustment
work. The work of relocation or adjustment of existing facilities is 100% MnDOT cost.
The City has an encumbrance or reimbursement amount of $20,000 which MnDOT will
reimburse to the City for time and material to review the design and inspect the relocation
or adjustment of existing facility. Staff has reviewed the encumbrance amount and finds
it adequate to cover the design review and inspection costs.
The City will be responsible for the betterment costs or the new utilities and
infrastructure the City has requested be included in the project. The MUA does not lock
the City into any costs for these betterment costs. A joint powers agreement with
MnDOT for the betterment costs will be brought before City Council for consideration in
the near future.
The city attorney has reviewed this agreement and finds it acceptable.
RECOMMDA TION
Staff recommends approval at this time.
Attachments
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CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
DATE:
November 8, 2004
RESOLUTION NO:
2004-
MOTION BY:
SECONDED BY:
APPROVE MASTER UTILITY AGREEMENT WITH MnDOT FOR
THE TH 212 PROJECT NO. 03-09
WHEREAS, the City of Chanhassen is authOJized to enter into the Master Utility
Agreement (MUA), MnDOT Agreement No. 86825, applicable to the TH 212 Project, with the
State of Minnesota Department of Transportation for the following purpose:
To provide for cooperation with the Contractor in coordinating all utility relocation issues for the
TH 212 Project.
WHEREAS, the Mayor and the City Manager are certified to execute the Agreement and
any amendments to the Agreement.
NOW, THEREFORE BE IT RESOLVED that the City of Chanhassen be authorized to
enter into the Master Utility Agreement, MnDOT Agreement No. 86825 for the TH 212 Project
with the State of Minnesota Department of Transportation for the above-mentioned purpose.
Passed and adopted by the Chanhassen City Council this _ day of November, 2004.
A TrEST:
Todd Gerhardt, City Manager
Thomas A. Furlong, Mayor
YES
NO
ABSENT
g:\admin\rcsol\2004 - master utility agreement.doc
Prepared by:
Utility Agreements Unit
(Payable)
$20,000.00
S.P. 1017-12 (T.H. 212)
Located on T.R. 212 from 1.2 Miles West of
c.R. 147 in the Township of Dahlgren to
C.S.A.H. 4 in the City of Eden Prairie
City of Chanhassen
MnlDOT Agreement Number 86825
T.H.212
DESIGN-BUILD PROJECT
MASTER UTILITY AGREEMENT WITH
THE CITY OF CHANHASSEN
THIS MASTER UTILITY AGREEMENT, (hereinafter, "MUA") i$ 1ì.ìade and entered into this _ day
of , 2004 among the State of Minnesota, acting through its Commissioner of
Transportation, hereinafter referred to as "MnJDOT," the City of Chanhassen, acting by and through its City
Council, hereinafter referred to as the "Utility Owner," and , a
[joint venture][ Corporation][a partnership], hereinafter referred to
as the "Contractor."
WHEREAS, MnlDOT has entered into a design-build contract with Contractor to design and construct a
project located in Hennepin and Carver Counties, Minnesota, within the city limits of Eden Prairie,
Chanhassen, Chaska and Carver. The Project includes improvements to approximately 11.75 miles from the
intersection of existing T.H. 312 and East Prairie Road (CSAH 4) to 0.75 miles west of the intersection of
existing 212 and Carver County Road 147. The project includes grading, surfacing, noise berms, noise walls,
ponds, signals, lighting, signing and nridges, hereinaftt~r referred to as the "Project"; and
WHEREAS, from time to time, the construction, reconstruction, improvement, maintenance and operation of
the Project will require changes to the Utility Owner's facilities (hereinafter "Facilities") currently located
within or adjacent to MnlDOT right-of-way; and
WHEREAS, such changes may include relocation, in-place/out-of-servíce, protection in place, removal,
replacement, reinstallation and/or modification of the Facilities; and
WHEREAS, the Contractor or the Utility Owner may conduct a portion or all Utility Work pursuant to this
MUA and the parties agree to ensure that the Work is performed in acevrdance with all applicable
requirements; and
WHEREAS, the parties desire to cooperate with each other for the purpose of ensuring that the relocations of
all Facilities that are necessary are performed in close coordination with the Contractor's performance of the
Project in order to minimize delays, uncertainties, risks and resulting additional Project costs; and
WHEREAS, the Utility Owner is responsible for the costs of the Utility Work, including Betterments, except:
(1) if the Owner's Utilities are currently located on/in:l real property interest (fee, easement) owned by the
Owner, as evidenced by documentarj proof of such interest provided by the Owner and approved by MnlDOT,
and if MnlDOT "takes" that interest for the Project; or (2) if the relocation is a first relocation of a municipally
owned utility located within the limits of a municipal street at the time that the street was taken over by the
Page 1 of 24
S.P 1017-12 (T.H, 212)
Agreement Number 86825
state as a trunk highway, MnJDOT shall reimburse the Utility Owner for the costs of the Utility Work,
excluding Betterments.
WHEREAS, MnJDOT has required the Contractor to include the costs for performing the Utility Work for
which MnJDOT is responsible in the Contractor's Proposal Price for the design-build contract; and
WHEREAS, the Utility Owner agrees to either perform the Utility Work or reimburse Contractor for the
Utility Work for which it is responsible; and
WHEREAS, to accomplish that purpose, the parties desire to set forth the terms and conditions for design,
construction and payment for the relocations.
THEREFORE, IT IS AGREED by and between MnJDOT, the Utility Owner and the Contractor as follows:
I. STANDARD CONDITIONS.
The following provisions are incorporated herein as terms and conditions of this MUA. In the event of
a conflict or inconsistency between this MUA, its incorporated material, and its exhibits or
attachments, such conflict or inconsistency shall be resolved in favor of the most restrictive provision,
as determined by MnJDOT in its discretion.
A. Title 23, Code of Federal Regulations, Part 645, and the edition of the FHW A Program Guide:
Utility Adjustments and Accommodation on Federal Aid Highway Projects (collectively, the
"Federal Regulation"), in effect at the execution of this agreement, and any subsequent
amendments and replacements.
B. All Exhibits referenced herein.
II. DEFINITIONS.
The definitions contained in Exhibit H shall apply when the terms defined therein are used in this
MUA
III. MASTER AGREEMENT.
This MUA is a Master Agreement which establishes a general framework for processing the Utility
Work for Facilities owned by the Utility Owner that need to be relocated for the Project. The actual
performance of all Utility Work shall be pursuant to Work Orders issued under this MUA, as
described below. This MUA shall apply to all Utility Work that is required for the Project, whether
perfonned by the Contractor or by the Utility Owner.
A. LEGAL AUTHORITY. The Utility Owner and the Contractor warrant that they possess the
legal authority to enter into this MUA and that they have taken all actions required by their
procedures, by-laws, and/or applicable law to exercise that authority, and to lawfully authorize
their undersigned signatory to execute this MUA and to bind the Utility Owner and the
Contractor to its terms. The Utility Owner shall attàch to the executed MUA a Resolution
generally in the form attached to this MUA as Exhibit L. The State is authorized to enter into
this agreement by Minnesota Statutes § 161.46. The persons executing this MUA on behalf of
Page 2 of 24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
the Utility Owner, MnlDOT and the Contractor warrant that such persons have full
authorization to execute this MUA.
B. DELEGA nON TO THE CONTRACTOR. The Utility Owner and the Contractor
acknowledge that MnlDOT will perform the design and construction of the Project by means
of a design build (DB) Contract with the Contractor that MnlDOT has procured in compliance
with Minn. Stat. §§ 161.3410-.3428 (2002), and that MnlDOT's entry into such DB Contract
may have an impact on the Utility Work to be performed hereunder, including, without
limitation, matters relating to scheduling and coordination of the Utility Work. Accordingly,
the parties agree as follows:
I. MnlDOT may delegate to the Contractor the duty to perform certain MnlDOT
obligations hereunder in lieu of MnlDOT performing same, as designated by MnlDOT
in the DB Contract; provided, however, that MnlDOT's obligations to pay the Utility
Owner or the Contractor and/or to collect payment from the Utility Owner or the
Contractor, as applicable, for the performance of Utility Work will not be delegated to
the Contractor.
2. The Contractor and the Utility Owner agree to coordinate their efforts and to
cooperate with each other concerning performance of the duties and obligations set
forth in this MUA.
C. REIMBURSEMENT REQUIREMENTS. The parties recognize that this MUA governs the
reimbursement for all Utility Work performed pursuant to this MUA, to the fullest extent
consistent with applicable law.
1. All plans, specifications, estimates, and billings submitted by the Contractor or the
Utility Owner to MnlDOT for the purpose of receiving reimbursement shall comply
with the requirements of the Federal Regulation and with all applicable MnlDOT
requirements
2. If any Utility Work is undertaken by the Utility Owner's contractor under a
competitive bidding process in a portion of the Project subject to the Federal
Regulation, all bidding and contracting shall be conducted in accotdance with all
federal and State laws and regulations applicable to the Utility Owner and the Project.
If requested by MnlDOT, it shall be a condition of the Utility Owner entering into any
contract for Utility Work hereunder that the contractor shall furnish such bonds,
insurance and/or indemnities as MnlDOT may require.
D. FEDERAL/STATE/LOCAL REQUIREMENTS. The Contractor and the Utility Owner shall
at all times in the performance of the Utility Work comply with all applicable federal and
State and local laws, and their implementing regulations, as they currently exist, which are
incorporated herein by this reference as terms and conditions of this MUA. The Contractor
and the Utility Owner shall also require compliance with these laws and regulations in all
subcontracts entered into under this MUA. Where requested by MnlDOT, in its discretion, the
Utility Owner and the Contractor must obtain MnlDOT's Approval prior to the award of any
subcontract for the performance of any part of the Utility Work for which MnlDOT is
responsible for the cost. Such approval shall not be unreasonably withheld.
E. TERM. The term of this MUA will commence upon its execution by the Utility Owner, the
Contractor, and the State officials as required by Minn. Stat. § 16C.05. In no event will the
term of this MUA, or any work order issued hereunder, exceed a duration of five years. This
MUA will continue, with the exception of the continuing records retention requirement which
shall extend beyond the term, until the earlier of five years or when:
1. All of the anticipated Utility Work needed for the Project at the various Utility Design
Sheet (Exhibit D) locations has been completed; and
Page 3 of 24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
2. MnlDOT makes any final payment owed to the Utility Owner (if any); and
3. The Utility Owner repays MnlDOT for the Contractor's performance of any Utility
Work for which the Utility Owner was responsible for the cost.
F. CANCELLA nON WITHOUT CAUSE. MnlDOT may immediately cancel this MUA at any
time MnlDOT determines, and gives written notice to the parties of MnlDOT's determination,
that the purposes of the distribution of State moneys under the MUA would no longer be
served by completion of the Utility Work. MnlDOT shall effect such cancellation by giving
written notice of termination to the Utility Owner and the Contractor, and specifying the
effective date thereof, at least thirty Days before the effective date of such cancellation. In
that event, all finished or unfinished documents, data, studies, surveys, drawings, maps,
models, photographs, and reports or other material prepared by the Utility Owner and the
Contractor under this MUA shall, at the option of MnlDOT, become its property, and the
Utility Owner and the Contractor shall be entitled to receive just and equitable compensation
for any satisfactory services and supplies delivered. If this MUA is cancelled for cause, or due
to the fault of the Utility Owner or the Contractor, the Cancellation for Cause or Default
provision shall apply.
G. CANCELLA nON OR SUSPENSION FOR INSUFFICIENT FUNDING. MnlDOT may
immediately cancel or suspend this MUA upon giving the Contractor and the Utility Owner
written notice if the funds necessary to pay for the work covered hereunder are not provided
by the Minnesota Legislature or other funding source, or are not received in an amount
sufficient to pay for such work. In the event of such termination or suspension, the Utility
Owner and the Contractor will be entitled to receive any funds due to the Utility Owner or the
Contractor hereunder for work completed, to the extent such funds are available.
H. CANCELLATION FOR CAUSE OR DEF AUL T. If through any cause, either the Utility
Owner or the Contractor shall fail to fulfill, in a timely and proper manner, their obligations
under this MUA, or if either the Utility Owner or the Contractor violates any of the covenants,
agreements, or stipulations of this MUA, MnlDOT shall thereupon have the right to terminate
this MUA for cause by giving written notice to the Utility Owner and the Contractor of its
intent to terminate and at least a thirty Day opportunity for the defaulting party to cure the
default or show cause why termination is otherwise not appropriate. Any such termination
shall be at MnlDOT's sole discretion and shall not limit any other available remedy. In the
event of termination, all finished or unfinished documents, data, studies, surveys, drawings,
maps, models, photographs, and reports or other material prepared by the Utility Owner or the
Contractor under this MUA shall, at the option of MnlDOT, become its property, and the
Utility Owner and/or the Contractor shall be entitled to receive just and equitable
compensation for any services and supplies delivered and accepted.
Notwithstanding the above, the Utility Owner and the Contractor shall not be relieved of
liability to MnlDOT for any damages sustained by MnlDOT by virtue of any breach of the
MUA, and MnlDOT may withhold any payment to the Utility Owner or the Contractor for the
purposes of mitigating its damages until such time as the exact amount of damages due to
MnlDOT from the Utility Owner and/or the Contractor is determined.
If after such cancellation it is determined, for any reason, that the Utility Owner or the
Contractor was not in default, or that the Utility Owner's or Contractor's actionlinaction was
excusable, such cancellation shall be treated as a cancellation without cause, and the rights and
obligations of MnlDOT and the Utility Owner and/or the Contractor, whichever is applicable,
shall be the same as if the MUA had been cancelled without cause, as described herein.
I. MAXIMUM MUA AMOUNT. The total maximum amount of funds encumbered by this
MUA is $20,000.00. This maximum amount applies regardless of whether the obligation of
the State is direct or indirect; whether it pertains to preparing design plans and specifications
Page 4 of 24
S,P 1017-12 (T.H. 212)
Agreement Number 86825
for the physical relocation of the public or private entities; whether it pertains to inspection
services provided by city staff or consultant services; or whether it pertains to any other claim
under this MUA. The total cumulative amount of the Utility Work performed pursuant to
Work Orders that are issued under this MUA shall not exceed the total maximum amount,
unless this MUA is first amended and fully executed by the Utility Owner, the Contractor, and
with State officials as required by Minn. Stat. § 16C.05.
J. DATA PRACTICES. All parties shall comply with the Minnesota Government Data
Practices Act (Minnesota Statutes chapter 13), as it applies to any data pertaining to this MUA
and the work performed hereunder, and which is received, collected, stored, or disseminated
by a party to this MUA. The Act provides for civil liability for failure to comply with its
requirements.
IV. THE UTILITY DESIGN SHEET.
The Utility Work to be performed under this MUA shall be as described on a UTILITY DESIGN
SHEET (UDS), in substantially the form described in Exhibit D, for a specific location.
v. GENERAL PROCEDURES.
If the Contractor is required in the D-B Contract to perform certain Utility Work, the Contractor shall,
at Contractor's cost, be responsible for the quality management of the Utility Work, including quality
planning, quality control, quality assurance and quality improvement. The Utility Owner may conduct
inspections of the Contractor's Work and may conduct oversight activities it deems necessary. The
Utility Owner or its designated representative shall operate all valves and supervise all shut-offs and
disconnections for the construction of the Utility Work. The Utility Owner must notify MnlDOT in
writing of all cases of non-compliance by any party in the performance of the Utility Work within
fourteen Days that the Utility Owner knew or should have known of the non-compliance.
If the Utility Work is added to the Contractor's Work pursuant to the Work Order process described
below, the responsibility for the quality management of the Utility Work shall be as described in the
applicable Work Order. Unless otherwise described in the applicable Work Order; however, the
Contractor shall provide quality control for the Project Work but shall not be required to provide
quality control for the Utility Work, whether performed by the Contractor or the Utility Owner. The
Utility Owner shall be responsible to provide quality control for the Utility Work. Any quality control
that the Contractor may elect to provide for the Utility Work shall be in addition to, not in lieu of, the
Utility Owner's responsibility. The Utility Owner or its designated representative shall operate all
valves and supervise all shut-offs and disconnections for the construction of the Utility Work. The
Utility Owner must notify MnlDOT in writing of all cases of non-compliance by any party in the
performance of the Utility Work within fourteen Days that the Utility Owner knew or should have
known of the non-compliance.
VI. COORDINA TION.
The Utility Owner shall coordinate and cooperate with MnlDOT and the Contractor to ensure that any
Utility Work that is needed for the Project is performed promptly, and in close coordination with the
Contractor's performance of the Project, in order to minimize delay and uncertainty as to the scope or
nature of the Proj ect Work and to eliminate additional cost resulting therefrom. Coordination shall
include:
Page 5 of 24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
A. INITIAL COORDINA nON MEETING. Prior to beginning the Work Order process
described in Section VIII below, the parties shall conduct an initial coordination meeting when
the Contractor or the Utility Owner, whichever is applicable, has achieved a level of design to
determine Utility conflict(s). At the initial coordination meeting, the Contractor shall
coordinate with the Utility Owner to address a proposed resolution and address pertinent
information for the UDS. With the UDS information, a preliminary level of design and
estimated costs, the Contractor shall schedule a meeting with the Utility Owner and MnlDOT
to negotiate the Work Orders, to review the schedule of the Project final design and
construction at the specific UDS location(s), and to review the proposed resolution of the
Utility conflict(s). The purpose of the meeting will be to coordinate the performance of the
Project Work and incorporate the design and construction of the Utility Work at the UDS
location( s).
B. COORDINATION OF RELOCATIONS. Contractor shall avoid relocation of the Utility
Owner's Facilities to the extent practicable. If the Contractor and Utility Owner cannot agree
whether a relocation can be avoided, MnlDOT shall make that determination in its sole
discretion. When practicable in accordance with the foregoing, the Utility Owner's Facilities
will be left in place and protected. When physical Relocation of the Utility Owner's Facilities
cannot be reasonably avoided in accordance with the foregoing, the Utility Owner shall
Relocate (or allow the Relocation of) such Facilities and cooperate with requirements for the
Project, in accordance with the provisions of this MUA. Where there are joint users in or on
any such Facilities or any part thereof, the Utility Owner shall use its best efforts to cooperate
with MnlDOT and the Contractor in identifYing any joint users and to assist in the Utility
Work.
C. CHANGE IN CONTRACTOR'S DESIGN. If the Contractor and the Utility Owner have
agreed to a physical Relocation of the Utility Owner's Facility(ies), and design and/or
construction has commenced after which a change in the Contractor's design results in
additional design or a second Relocation of such Facility(ies), the Contractor and the Utility
Owner agree to coordinate with each other in changing the design or in relocating the
Facility(ies). Payment for such second design and/or Relocation shall be in accordance with
Paragraph XI.B. below.
D. MnlDOT, the Utility Owner, and the Contractor shall meet as reasonably requested by each
other to review and coordinate time schedules and to track Utility Work progress.
E. The Utility Owner shall not interfere with the performance of the Project Work by any entity.
"Interfere" means any action or inaction that interrupts, delays, or damages the Project Work.
VII. TECHNICAL CRITERIA/PERFORMANCE STANDARDS.
Any performance by either the Contractor or the Utility Owner of the design or the construction ofthe
Utility Work shall be consistent with the terms of this MUA. Any performance by either the
Contractor or the Utility Owner of the design or the construction of the Utility Work shall also be
consistent with the Utility Owner's reasonable, written specifications, standards of practice and
construction methods that are current at the time the Utility Work is to be performed, as well as any
applicable permit requirements. The Utility Owner shall provide any such written specifications,
standards of practice and construction methods to MnlDOT and the Contractor by no later than the
beginning of design if the Contractor is performing the design or by no later than the date a Work
Order is signed for that Utility Work if the Contractor is not performing the design. Ifso provided
they shall be deemed to be incorporated herein by this reference, and if they are not so provided, the
Contractor shall have no obligation to perform the Utility Work in accordance with them. In the event
Page 6 of 24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
ofa conflict or inconsistency between the terms of this MUA and the Utility Owner's written
specifications, standards of practice and construction methods, such conflict or inconsistency shall be
resolved in favor of the more stringent provision, as determined by MnlDOT in its reasonable
discretion.
The plans for the design of the Utility Work shall show at least the following: existing topography,
right-of-way, lanes of travel, and the location of the utilities, including the x and y coordinates, and the
z coordinate, if applicable. Regardless of which party is performing the design of the Utility Work,
the Contractor shall prepare the plans that show appurtenant details of design, including pipe size,
valve information, etc., and the location of the utilities, including the x and y coordinates, and the z
coordinate, if applicable. Regardless of which party prepares the plans for that design, the plans shall
be subject to review and approval by the other party, by execution of a Design Approval Letter
(Exhibit F). Any such review shall be promptly provided in accordance with timelines, if any,
described in this MUA or a Work Order issued for that Utility Work. The final plans and
specifications, including any applicable permit'requirements, shall govern the scope of the Utility
Work. In the event plans and specifications are not complete as of the date ofthis MUA, or are to be
prepared hereafter, the most recent drawings or plans and specifications are referenced in order to
clarify the intentions of the Contractor and the Utility Owner, but they shall be automatically
supplemented by the final plans when they are completed. The final plans, when completed, shall be
deemed incorporated as part of this MUA.
VIII. WORK ORDER PROCESS.
Before any party commences any Utility Work, MnlDOT, the Utility Owner, and the Contractor must
execute a Work Order in accordance with the process stated below and any necessary MnlDOT Utility
Permits (see Exhibit B, Permit Application) must be issued by MnlDOT.
A. FORM. The Work Orders shall be in substantially the form attached hereto as "Exhibit E."
Neither the Contractor nor the Utility Owner shall proceed with its performance of any Utility
Work at any specific UDS location before a Work Order authorizing that Utility Work is fully
executed.
B. CONTENTS/AMENDMENT. The Work Order, and the various agreements or documents
subsequently executed or prepared pursuant to it, will ultimately address the scope of the
Utility Work to be performed, the party responsible to perform such Utility Work, the lump
sum amount or the estimated cost (as applicable) for such Utility Work, the schedule for
performance for such Utility Work, Utility Owner inspection fees and all other conditions
applicable to the performance of such Utility Work, except those already included in this
MUA. The Work Order shall include design plans, any applicable design details available and
any existing right of way/easement documents for the construction ofthe Utility Work at the
particular UDS location(s). The Work Order may also be used to otherwise amend the terms
and conditions of this MUA, upon inclusion of appropriate language describing such changes
in the Work Order.
C. NEGOTIATION. Mn/DOT, the Utility Owner, and the Contractor shall promptly meet and
confer to resolve, through good faith negotiation, any comments or disagreements with respect
to the contents of any Work Order. After negotiation and agreement between MnlDOT, the
Utility Owner, and the Contractor of the scope of the Utility Work, the party responsible to
perform that Utility Work, the lump sum amount or the estimated cost for that Utility Work
(as applicable), and the schedule for performance of that Utility Work, the Contractor shall
prepare the Work Order.
Page 7 of 24
S,P 1017-12 (T.H. 212)
Agreement Number 86825
D. SUBMISSION/RESPONSE/EXECUTION. The Contractor shall submit to the Utility Owner
a Work Order providing notice of the Utility Work and a schedule for the performance of that
Utility Work. The Utility Owner shall respond (by executing or commenting on problems) to
all Work Orders within fourteen days after the Utility Owner's receipt thereof. No Work
Order will be effective until it is fully executed by all parties, including the Commissioner of
Transportation and other state officials as required by law.
E. STANDARDS. Performance of the Utility Work, and payment for that Utility Work (if
applicable), shall be governed by the standards, procedures, and terms set forth in this MUA
and in such Work Order. All standards, procedures, terms, and conditions set forth in this
MUA, and all MnlDOT Utility Permits issued by Mn/DOT subsequent to the execution of the
Work Orders, shall be deemed incorporated into each Work Order issued. Further, all terms
and conditions that are applicable to such Utility Work and that are not already included in
this MUA shall be specifically described and included in the Work Order. Failure to execute a
Work Order does not excuse the performance of any other obligation by any party under this
MUA.
F. REIMBURSEMENT/PAYMENT. Payment for the performance of Utility Work under a
Work Order shall be in accordance with the Reimbursement Process in Section XV of this
MUA. The Utility Owner shall deal directly with MnlDOT when making or receiving
payment(s) for the performance of Utility Work and/or Betterments, as described in this
MUA.
G. EFFECTIVE OBLIGATION. MnlDOT shall have no financial obligation to pay for any
Utility Work described in a Work Order unless the Work Order expressly obligates MnlDOT
to pay for such task(s). MnlDOT's financial obligation if any for the Utility Work shall be
limited by the amount of MnlDOT's obligation as expressly described in any signed Work
Order issued for that Utility Work, and any such obligation shall not be effective until the
Work Order has received approval of State officers as the law may provide in addition to the
Commissioner of Transportation or the Commissioner's authorized representative.
IX. SCHEDULING.
A. The Utility Owner or the Contractor, whichever is applicable, shall complete any design
and/or construction and/or inspection of the Utility Work within the schedule described in the
Work Order executed for that Utility Work. The parties agree to negotiate in good faith for
the implementation of acceleration measures (e.g., imposing overtime work and importing
contractors from outside of the local area) if necessary, in order to meet the Contractor's
scheduling requirements.
B. Where the Utility Owner is performing the construction of the Utility Work, the Utility Owner
shall commence its construction after receiving an executed Work Order therefore and shall
notify the Contractor at least five Days prior to commencing such construction, unless a
different time period is expressly required in the Work Order executed for that Utility Work.
C. Where the Contractor performs the design for the Utility Work, the Utility Owner shall review
the design prepared by the Contractor no later than fourteen Days after its submission to the
Utility Owner, unless a different time period is expressly required in the Work Order executed
for that Utility Work, and the Utility Owner shall approve the design and notify MnlDOT and
the Contractor thereof within that time if the design is consistent with the performance
standards described herein. Where the Utility Owner performs the design for the Utility
Work, the Contractor shall review the design prepared by the Utility Owner no later than
fourteen Days after its submission to the Contractor, unless a different time period is expressly
Page 8 of 24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
required in the Work Order executed for that Utility Work. The Contractor shall approve the
design and notity MnlDOT and the Utility Owner thereof within that time if the design is
consistent with the performance standards described herein.
D. The Utility Owner shall have the right to reject any design work that does not meet the
Technical Criteria/Performance Standards described in Section VII above. If the Utility
Owner rejects any design work, the Utility Owner shall immediately notity MnlDOT and the
Contractor, in writing, of its grounds for rejection and suggestions for correcting the problem,
and the Utility Owner shall re-review the revised design work no later than seven Days after
its submission to the Utility Owner, unless a different time period is expressly required in the
Work Order executed for that Utility Work.
x. DEADLINES AND DELAYS.
A. Neither the Contractor nor the Utility Owner shall be liable for any delay in or failure to
perform any obligation contained in this MUA, nor shall any delay or failure constitute default
or give rise to any liability for damages if, and only to the extent that, such delay or failure is
caused by "Force Majeure."
B. Where the Utility Owner is the party responsible for the performance of the design and/or the
construction of the Utility Work described in a Work Order, the Utility Owner shall timely
commence, diligently prosecute, and complete such design and/or construction, as applicable,
on or before the deadlines established herein, in the Notice and Order attached to this MUA as
Exhibit I, or in the applicable Work Order.
C. If the Utility Owner fails to meet a deadline established herein or in the applicable Work
Order, except where due to Force Majeure, the Utility Owner shall pay MnlDOT the actual
documented costs and damages incurred by MnlDOT or shall pay the Contractor the actual
documented costs and damages incurred by the Contractor arising out of any delay in
completion of the portion of the Project resulting from the Utility Owner's delay. If the
following conditions are satisfied, however, the Contractor shall bear 100% of the risk of
Utility Delays, up to an aggregate amount of eight calendar days of Utility Delays per Utility
Owner for the Project (regardless of how many Utilities of such Utility Owner cause delay):
I. The Utility Owner has provided evidence reasonably satisfactory to MnlDOT that it
has fulfilled its obligation to coordinate with the Contractor to prevent or reduce such
delays,
2. If applicable, the Utility Owner has attempted to negotiate a reasonable solution to the
Utility Delay in accordance with Paragraph IX.A., and
3. The Utility Owner has obtained, or is in a position to timely obtain, all applicable
approvals, authorizations, certifications, consents, exemptions, filings, leases, licenses,
permits, registrations, options and/or rulings required by or with any Governmental
Person in order to design and/or construct such Utility Relocation that is the Utility
Owner's responsibility to obtain.
D. Where the Contractor is the party responsible for the performance of the design and/or the
construction of the Utility Work described in a Work Order, the Contractor shall timely
commence, diligently prosecute, and complete such design and/or construction, as applicable,
on or before the deadlines established herein in the Notice and Order, or in the applicable
Work Order.
E. If the Contractor fails to meet a deadline established herein or in the applicable Work Order,
except where due to Force Majeure, the Contractor shall pay the Utility Owner any actual
Page 9 of 24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
documented costs and damages incurred by the Utility Owner resulting from the Contractor's
delay.
F. If any party fails to meet a deadline set forth in a Work Order, then any affected time
deadlines for any other party's performance of the design, construction, and/or inspection of
the Utility Work shall be revised accordingly.
XI. RESPONSIBILITY FOR COST.
A. GENERAL. Cost responsibility between MnJDOT and the Utility Owner shall be determined
in accordance with applicable laws of the State of Minnesota, including Minn. Stat. §§ 161.45
and 161.46, and Minnesota Rules 8810.3300, subp. 3.
B. CHANGE IN CONTRACTOR'S DESIGN. Regardless of the initial cost responsibility for a
Utility Relocation, if the Contractor and the Utility Owner have agreed to a physical
Relocation of the Utility Owner's Facility(ies), and design and/or construction has
commenced, and a change in the Contractor's design results in additional design or a second
Relocation of such Facility(ies), Contractor is responsible for payment of such additional
design or second Relocation.
C. DISPUTE RESOLUTION. Ifthere is a dispute concerning cost responsibility in a particular
location, the parties shall attempt to resolve that dispute in accordance with the Provisions of
Section XXII below. If a good faith dispute continues after that attempt, and if MnJDOT
consents in writing, the parties shall proceed with the Utility Work at that location at
MnJDOT's cost, subject to MnJDOT reserving all applicable legal and equitable rights to later
pursue reimbursement, plus interest and costs, expenses and damages, from the Utility Owner
or the Contractor.
D. DEPRECIATION. Depreciation credit shall be allowed only to the extent authorized by 23
CFR 645.117(h)(2).
E. RET AINAGE. For any payments due to Utility Owners, MnJDOT will retain five percent of
the amount claimed due until MnJDOT has conducted a final audit.
F. SALVAGE.
1. Where the Utility Owner is responsible to perform construction of the Utility Work
under a Work Order for which MnJDOT bears the responsibility for cost, the Utility
Owner must give credit to MnJDOT in that Work Order for the salvage value, as
explained in 23 CFR 645.117(h). The Utility Owner ,>hall not dispose of any
recovered materials before MnJDOT has inspected such materials and approved such
disposal.
2. Wherc the Contractor is responsible to perform construction of the Utility Work under
a Work Order, unless otherwise noted in that Work Order, materials from Utility
Owner's existing Facilities which are recovered by the Contractor while performing
the construction of the Utility Work and which are not reused shall become the
property of the Contractor.
G. BETTERMENTS.
The Utility Owner is responsible for the cost of any Betterments to a Facility, as set forth in a
Work Order executed pursuant to this MUA.
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Agreement Number 86825
XII. REAL PROPERTY INTERESTS.
A. If the Utility Owner is requesting Mn/DOT to reimburse it for the Utility Work, the Utility
Owner shall provide MnlDOT with copies of its property rights documents for its existing real
property interest, which documents shall accompany any Work Order executed pursuant to
this MUA for Utility Work involving such instruments. The Utility Owner shall have the
burden of proof to demonstrate that it actually owns such an existing compensable real
property interest.
B. The Utility Owner shall also convey to MnlDOT by Quitclaim Deed all of Utility Owner's
right, title, and interest in property located in Carver County, Minnesota, lying within trunk
highway right-of-way for the Project. The quitclaim deed shall be in the form set forth in the
Work Order and shall be executed by the Utility Owner before final payment is made to the
Utility Owner for the Work Order.
XIII. PERFORMANCE OF THE UTILITY WORK.
The Contractor and the Utility Owner may split the responsibilities for the performance of the design
and construction elements of the Utility Work at any particular UDS location, or one party may
perform both elements by itself, as follows:
A. RESPONSIBLE PARTY. The Utility Tracking Report (Exhibit A), initially indicates which
party will be responsible for the performance of the design and/or the construction elements of
the Utility Work at a particular UDS location(s). However, that responsibility may change by
the time the Utility Work is to be performed, including due (in part) to changes in the design
of the Project and/or to changes in the resources that may be available to the Utility Owner.
Therefore, the party responsible to perform the design and/or construction elements of the
Utility Work at a particular location at the time a Work Order is executed for that Utility Work
shall also be identified in that Work Order, which shall prevail over Exhibit A to the extent of
any conflict.
B. TIME OF ESSENCE. Time is of the essence in the performance of Utility Work under this
MUA and the Work Orders issued hereunder.
C. DESIGN
1. By the Contractor. The Contractor may perform the design of the Utility Work in
conjunction with its performance of the design of the Project Work, if so authorized
by the Utility Owner by its execution of a Work Order. The Contractor shall complete
the design of the Utility Work within the schedule set forth in the Work Order, and the
design shall be subject to the approval of the Utility Owner by execution of a Design
Approval Letter (Exhibit F(l)); or
2. By the Utility Owner. The Utility Owner may perform the design of the Utility Work
in accordance with the terms of this MUA and an applicable Work Order. The Utility
Owner shall complete the design within the schedule set forth in the Work Order, and
the design shall be subject to the approval of the Contractor by execution of a Design
Approval Letter (Exhibit F(2)).
D. CONSTRUCTION.
1. By the Contractor. The Contractor may perform the construction of the Utility Work
in conjunction with its performance of the construction of the Project Work, if so
authorized by the Utility Owner by its execution of a Work Order. The Contractor
shall complete construction of the Utility Work within the schedule set forth in the
Page 11 of24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
Work Order, and construction shall be subject to the inspection and approval of the
Utility Owner by execution of a Construction Inspection Approval Letter (Exhibit
G(l)); or
2. By the Utility Owner. The Utility Owner may perform the construction of the Utility
Work in accordance with the terms of this MUA and an applicable Work Order. If the
Utility Owner performs the construction, it shall complete that performance within the
schedule set forth in the Work Order, and construction shall be subject to the approval
of the Contractor by execution of a Construction Inspection Approval Letter (Exhibit
G(2)).
3. Traffic Control. The Contractor shall, at Contractor's cost, provide traffic control for
any Utility Work, whether performed by the Utility Owner or the Contractor that will
be coordinated with the Project Work.
4. X, Y, Z Coordinate Information. The Contractor shall, at Contractor's cost, collect
and record x, y, z coordinate information, at an accuracy range of plus or minus six
inches for all relocated or newly installed underground facilities as part of the Project
when the Relocation or installation is complete, whether the Relocation or new
installation is performed by the Utility Owner or the Contractor. The Contractor shall
provide Mn/DOT and the Utility Owner with a copy of the coordinate information,
which shall, at a minimum, meet the following requirements:
a. The underground Utility facilities must be located and measured to an
accuracy range of plus or minus six inches following "Part 3: National
Standard for Spatial Data Accuracy of the Geospatial Positioning Accuracy
Standards" for reporting spatial locations issued by the Federal Geographic
Data Committee, National Mapping Division, United States Geological
Survey, United States Department of the Interior;
b. The measurement must be reported in x, y and z coordinates, referenced to the
Project horizontal and vertical datum;
c. The horizontal and vertical alignment and elevation position must be reported
at minimum intervals of 100 feet and at each point where the direction of the
Utility facility is intentionally changed. The x, y and z coordinates must
define the top center of the Utility facility, except for gravity lines where the
coordinates shall be the invert of the Utility facility; and
d. Notwithstanding the requirements of Clause XILDA.c. above, for Utility
facilities that are installed by jacking, boring, plowing or other means that do
not involve an open trench, the x, y and z coordinate information must be
provided at the endpoints of the casing, pipe or other such underground
facility being installed and at each point where the direction of the facility is
intentionally changed.
E. PERMITS. With the exception of the Mn/DOT Utility Permits, the party responsible (for the
performance of the construction element of the Utility Work at a particular UDS location shall
also be responsible to obtain all permits necessary therefore, including permits from local
authorities with jurisdiction over the R/W used for Utility Work outside the Project limits, and
the other party shall cooperate in that process as needed. The Utility Owner shall prepare the
Mn/DOT Utility Permit Application in coordination with the Contractor, and the Contractor
agrees to cooperate with the Utility Owner as necessary to obtain such permit.
F. INCIDENTAL UTILITY WORK. Regardless of which party is responsible to perform the
Utility Work at any particular UDS location, the Utility Owner agrees that the Contractor shall
be solely responsible to perform any Incidental Utility Work.
Page 12 of24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
G. APPROVAL OF SUBCONTRACTORS/SUB CONSUL T ANTS. If the Contractor performs
the design and/or the construction of the Utility Work, the Contractor shall use for that
purpose one or more of the subcontractors/subconsultants that are approved by the Utility
Owner to perfonn that design and/or the construction, as applicable
H. CHANGES TO THE UTILITY WORK. The UIS's listed in the Utility Tracking Report
describe the perfonnance ofthe elements of the Utility Work needed at a particular
location(s). However, that Utility Work, and/or the party responsible for the perfonnance of
that Utility Work, and/or the locations for that Utility Work, may change by the time the
Utility Work is to be perfonned, including due (in part) to changes in the design of the Project
and/or resources that may be available to the Utility Owner. In that event, the Contractor and
the Utility Owner shall indicate any changes in the perfonnance of the Utility Work at a
particular location and/or the party responsible for that Utility Work in a Work Order.
I. REMOVAL, PROTECTION IN PLACE AND IN-PLACE/OUT-OF-SERVICE. As defined
in the MUA Definitions (Exhibit H), Removal and In-Place/Out-of-Service are the work
necessary to take underground Utilities out of service. In-Place/Out-of-Service of Public
Utilities and protection in place of Utilities are included as incidental Utility Work, which is
the responsibility of the Contractor pursuant to this MUA. Removal is included as Utility
Work that may be perfonned by the Utility Owner or the Contractor pursuant to this MUA.
XIV. UTILITY OWNER TO PERFORM INSPECTION.
A. The Contractor shall, at Contractor's cost, provide any necessary traffic control for any Utility
Work inspections perfonned by the Utility Owner.
B. If the Utility Work is included in the D-B Contract, the Contractor shall, at Contractor's cost,
be responsible for the quality management of the Utility Work, including quality planning,
quality control, quality assurance and quality improvement. In all other cases, the
responsibility for the quality management of the Utility Work shall be as assigned in the
applicable Work Order.
C. The Utility Owner may perfonn inspections of construction of any Utility Work that is
perfonned by the Contractor. The Utility Owner's designated inspector shall coordinate with
the Contractor in connection with any inspections.
D. Such inspection may he perfonned at any time during construction, and a final inspection shaH
be perfonned no later than thirty Days (or other time period agreed to by the parties) after
completion of construction pursuant to the Work Order, and the Utility Owner shall provide
the Contractor with a signed Construction Acceptance Letter (Exhibit G(l)) for the completed
Utility Work if it makes a conditional detennination that the Utility Work appears to meet the
Technical Criteria/Perfonnance Standards described herein or in the Work Order executed for
that Utility Work. The thirty-Day time period (or other time period agreed to by the parties)
shall begin at the time the Contractor notifies the Utility Owner, in writing, that the
construction is completed. The Utility Owner shall have the right to reject any construction
Utility Work that does not appear to meet the Technical Criteria/Perfonnance Standards
described herein or in the Work Order executed for that Utility Work. If the Utility Owner
rejects any construction Utility Work, the Utility Owner shall immediately notify the
Contractor, in writing, of its grounds for rejection and suggestions for correcting the problem,
and the Utility Owner shall re-review the revised construction Utility Work no later than seven
Days after its completion, unless a different time period is expressly required in the Work
Order for that Utility Work.
Page 13 of 24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
E. Where the Utility Owner performs the construction Utility Work, the Utility Owner shall
provide As-Built plans of the Utility Work performed by the Utility Owner to Mn/DOT no
later than ninety Days after receipt of a Construction Inspection Approval Letter from the
Contractor. Where the Contractor performs the construction Utility Work, the Contractor
shall provide As-Built plans of Utility Work performed by the Contractor to Mn/DOT and the
Utility Owner no later than ninety Days after receipt of a Construction Inspection Acceptance
Letter from the Utility Owner accepting the Utility Work. Mn/DOT may withhold payments
due to Contractor or the Utility Owner for failure to timely provide the As-Built plans of
Utility Work.
F. At the time Mn/DOT is conducting its final inspection review, or earlier if agreed to by the
parties, Mn/DOT and the Contractor shall give the Utility Owner in writing the opportunity to
conduct a final inspection of the Utility Work, and the Utility Owner shall sign and provide to
the Contractor within seven days of the inspection a Construction Inspection Approval Letter
(Exhibit G(3)) for the completed Utility Work after it determines that the Utility Work meets
the Technical Criteria/Performance Standards described herein or in the Work Order executed
for that Utility Work. As part of that inspection, the Contractor shall provide the Utility
Owner with a certification by a Professional Engineer licensed in the State of Minnesota
indicating that construction of the Utility Work was performed in accordance with the
requirements of the Work Order, including the approved design.
G. The Utility Owner's inspection, acceptance and approval of the Utility Work shall not be
construed as a waiver by the Utility Owner of any claim the Utility Owner may have under
applicable law.
xv. REIMBURSEMENT PROCESS.
A. LUMP SUM BASIS. The performance of Utility Work under each Work Order be
reimbursed on a lump sum payment basis, if the parties can agree on a lump sum amount and
include that amount in the Work Order. Provided that, pursuant to Minn. Stat. § 161.46, subd.
3, a lump sum payment basis shall not be used where Mn/DOT is responsible for the cost of
Utility Work to be performed by the Utility Owner and the total amount under a particular
Work Order for that Utility Work exceeds $100,000.00.
If the parties cannot agree on a lump sum or unit price amount in situations where the Utility
Owner is responsible for the cost of Utility Work to be performed by the Contractor, or
Mn/DOT is responsible for the cost of the Utility Work to be performed by the Utility Owner,
Mn/DOT and the Utility Owner agree that the Utility Work will be performed on a time and
materials basis in accordance with the provisions of the DB Contract and that the responsible
party shall pay Mn/DOT or the Utility Owner, whichever is applicable, the total cost incurred
on that basis for the Utility Work.
B. COST BASIS. Reimbursement for Utility Work may also be based on reasonable and
necessary costs actually incurred in the performance of the Utility Work, subject to
compliance with the cost eligibility and reimbursement standards contained in23 CFR
645.117, and any other applicable regulations or procedures, less applicable credits for
Betterment, salvage and/or retirement value. If a cost reimbursement basis is used, the party
performing Utility Work (and its subcontractor(s)) shall develop and record the costs of the
Utility Work in accordance with 23 CFR 645.117 and any other applicable regulations or
procedures, and shall provide the other party with all information and reports required by State
or federal statute or regulation for such Utility Work.
C. ESTIMA TE.
Page 140f24
S.P 1017-12 (T.R. 212)
Agreement Nwnber 86825
1. For each specific DDS location where the parties agree that reimbursement for the
Utility Work will be based on reasonable and necessary costs actually incurred, the
party that will perform the Utility Work at that location will prepare an itemized
estimate, in accordance with its standard practice, of the Relocation Cost to be
incurred by it for the Utility Work at such location.
2. Each such estimate shall be submitted to the other party for approval, together with
the Preliminary Plans therefore, in accordance with the scheduling requirements
described herein.
3. Upon the completion of that Utility Work, the performing party shall provide to the
non-performing party a final notice of completion, and a final lump sum or itemized
statement for the non-performing party's total actual costs incurred by the performing
party for eligible items as indicated on the agreed estimate.
4. If the cost ofthe Utility Work increases to an amount in excess of that provided for in
the applicable Work Order, the party performing the Utility Work shall give notice to
the non-performing party and MnlDOT of the amount of increase of the actual costs
of performing that Utility Work. The Contractor, MnlDOT and the Utility Owner
prior to incurring such costs shall approve any payments for increases in the cost
estimates on an amended Work Order. The party performing the Utility Work shall
attach to the amended Work Order an explanation for any increase in the estimated
amount, together with the appropriate supporting documentation.
D. REIMBURSEMENT.
1. For each specific UDS location for which one party bears responsibility for the cost
and the other party performs the Utility Work, the party that performs the Utility
Work shall invoice the non-performing party for the lump sum amount, or the eJigible
costs, (as applicable).
2. The Utility Owner shall use the Reimbursement Invoice Form contained in Exhibit J,
to submit all billings to MnlDOT. An authorized representative of the performing
party shall sign each invoice. Payment of all invoices properly submitted hereunder
shall be due within ninety days after receipt by the non-performing party of such
invoice and of the final itemized statement and notice of completion.
3. Provided, however, that payment for such Utility Work (less applicable retainage)
shall be contingent upon the non-performing party's final inspection of the performing
party's work for such Utility Work, and all invoices shall be subject to post-audit
adjustment.
4. For any performing party's invoice for the Utility Work (including any amounts
previously billed) that exceeds the approved original cost estimate for said Utility
Work, the performing party shall obtain an approval from the other party in
accordance with Paragraph XV.CA above.
E. BILLINGS. All billings for the lump sum amount (or the eligible costs) of the performance of
the Utility Work must be submitted no later than one hundred twenty days after formal
Approval of the Utility Work.
XVI. APPROVALS AND ACCEPTANCES.
Any acceptance, approval, or any other like action (collectively "approval") required or permitted to
be given by any party hereto pursuant to this MUA:
Page 15 of24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
A. Must be in writing to be effective (unless deemed granted pursuant to Paragraph XVI.C.
below), and
B. Shall not be unreasonably withheld or delayed; and if acceptance or approval is withheld, such
withholding shall be in writing and shall state with specificity the reason for withholding such
acceptance or approval, and every effort shall be made to identify with as much detail as
possible what changes are required for acceptance or approval.
C. Approvals, acceptances or any other like actions between the Contractor and the Utility Owner
shall be deemed granted if no response is provided to the party requesting an acceptance or
approval within the time period prescribed by this MUA (or if no time period is prescribed,
then fourteen Days from receipt of a request for acceptance or approval by the party from
which an acceptance or approval is requested or required) except as may be specifically
provided in the DB Contract documents between MnlDOT and the Contractor. The requesting
party shall send out all requests for acceptance or approval to the other party in accordance
with the "Representatives and Notice" Section herein.
XVII. AUTHORIZED AGENTS AND NOTICES.
A. AUTHORIZED AGENTS. For the purpose of this MUA, the individuals identified below are
hereby-designated authorized agents ofMnlDOT, the Contractor, and the Utility Owner. Any
party may from time to time designate in writing new or substitute representatives:
For MoIDOT:
#1
Name:
Title:
Address:
Email:
Phone:
Fax:
#2
Name:
Title:
Address:
Email:
Phone:
Fax:
Jon Chiglo
212 Design-Build Project Manager
1500 West County Road B2
Rosevílle, MN 55113
Jon. Chiglo@dot.state.mn.us
651-582-1340
651-582-1166
Mike McKane
Utility Agreement Writer
Office of Technical Support, Mail Stop 678
395 John Ireland Boulevard
St. Paul, MN 55155-1899
mike.mckane@dot.state.mn.us
651-296-3056
651-296-9868
Page 16 of24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
#1
For the Contractor:
Name:
Title:
Address:
Email:
Phone:
Fax:
#2
Name:
Title:
Address:
Email:
Phone:
Fax:
For the Utility Owner:
#1
Name:
Title:
Address:
Email:
Phone:
Fax:
Paul Oehme
City Engineer
City of Chanhassen
7700 Market Boulevard
Box 147
Chanhassen, MN 55317-0147
poehme@ci.chanhassen.mn.us
952-227-1169
952-227-1100
B. AUTHORITY. With respect to the representatives noted above, such individuals shall have
the authority to sign/approve any Work Orders, to inspect and reject services, approve
invoices for payment, and to act otherwise for Mn/DOT, for the Contractor, and for the Utility
Owner.
C. NOTICES. All notices required to be given by Mn/DOT, the Contractor, and the Utility
Owner hereunder may be e-mailed, faxed, or hand delivered, or given by certified or
Page 17 of24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
registered mail to the individuals at the addresses set forth above. A paper copy must promptly
follo~ up any e-mailed notice. For faxed notices, the sender shall have the burden of
confirmation of delivery.
XVIII. UTILITY OWNERSHIP, OPERATION AND MAINTENANCE.
A. Upon completion of the construction and approval in writing of Utility Work by the Utility
Owner, the Utility Owner shall be the owner of the Utility Work.
B. Operation and maintenance of such Facilities shall be the sole responsibility of the Utility
Owner after it has provided a signed Construction Approval Letter (Exhibit G-2).
C. Access by the Utility Owner for maintenance and servicing of the Utility Owner's Facilities
that are relocated, or overtaken in-place, within the Project R/W will be allowed only pursuant
to a MnlDOT Utility Permit to be issued to the Utility Owner by MnlDOT. The Utility Owner
shall abide by all terms and conditions of all such Utility Permits.
D. All terms and conditions in the MnlDOT Utility Permits that have already been issued for
Utility Owner Facilities currently located in existing Project RIW will continue to apply unless
superseded by a subsequent MnlDOT Utility Permit issued for such Facilities. Where a
Utility Owner has Facilities located in existing MnlDOT that will be used for the Project,
without a current MnlDOT Permit Agreement with MnlDOT, the Utility Owner shaH
promptly apply for a current MnlDOT Utility Permit from MnlDOT. MnlDOT may, in its
reasonable discretion, issue a MnlDOT Utility Permit to the Utility Owner or may require the
Utility Facilities to be relocated at the Utility Owner's sole cost, unless the Utility Facilities
pre-existed MnlDOT's construction of the highway. All such current and new MnlDOT
Utility Permits are incorporated herein by this reference.
XIX. BETTERMENT.
As determined by MnlDOT in its sole discretion, Betterment work at any specific location may not be
eligible to be done if: (a) that work is not compatible with the Project Work, or; (b) that work would
interfere with the Project schedule, or; (c) that work is not feasible to separate the Betterment from any
related Utility Work being performed by the Contractor. If the Utility Owner desires to include
eligible Betterment work at any specific location where the Contractor is responsible to perform the
Utility Work, the Utility Owner shall negotiate the price (lump sum amount or estimated costs) for
said Betterment work directly with the Contractor. The Utility Owner shall provide a copy of the
agreed-to lump sum amount or actual cost estimate for that Betterment to Mn/DOT, and a Resolution,
generally in the form attached hereto as Exhibit M.
A. All such Betterment work shall be at the Utility Owner's sole cost. In the event the Utility
Owner authorizes the Contractor to perform the desired Betterment work, the Utility Owner,
MnlDOT, and the Contractor shall execute a Work Order describing the terms and conditions
applicable to such work. Upon execution of said Work Order, the Utility Owner shall deposit
the total negotiated price (lump-sum amount or estimated costs) of said Betterment work with
MnlDOT. MnlDOT will then add that Betterment work to the Project Contract with the
Contractor, based on the terms and conditions described in the Work Order.
B. Where a lump sum amount for the Betterment work is not agreed to, the Contractor will
perform the Betterment work on a time and materials basis in accord with the provisions of the
DB Contract, and the Utility Owner shall pay MnlDOT the total cost actually incurred on that
basis to perform the Betterment.
Page t8 of24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
Where the Contractor will perform the Betterment work on an estimated time and materials
basis, and the actual costs for that work exceed the estimated amount, the Utility Owner shall
pay MnlDOT for any actual costs that exceed that amount. MnlDOT will refund any
remaining funds to the Utility Owner if the actual costs for that work are less than the
estimated amount deposited with MnlDOT by the Utility Owner. Any such payment or refund
shall be made no later than thirty Days after receipt of an invoice therefore, together with
supporting documentation.
C. If the Contractor's offered price (lump sum or estimated cost) for the Utility Owner's desired
Betterment work is not acceptable to the Utility Owner, the Utility Owner may reject that
price and select a different contractor of its choice to perform the Betterment work. Provided,
however, that any such performance by a different contractor must comply with the schedule
of the Contractor's performance of the Project Work. MnlDOT, the Utility Owner, and the
Contractor shall execute a Work Order describing the terms and conditions applicable to such
Betterment work.
XX. CONTINUITY OF SERVICE.
A. The Contractor shall at all times take measures to ensure that all Utilities remain operational
during all phases of construction to the greatest extent practicable. Necessary interruptions of
service, including proposals for shutdowns and temporary diversions of affected Utilities shall
be described in the Work Order that is subject to the Utility Owner's Approval.
Where the Contractor is responsible for the performance of Utility Work, in order to maintain
the service continuity of the Utility Owner's Facilities to the extent practicable during that
performance, the Contractor, at its cost, shall:
1. Keep the Utility Owner fully informed of schedules, including coordinating with the
Utility Owner with regard to their design, construction, and inspection of Utility Work
performed by the Contractor; and
2. Keep the Utility Owner fully informed of changes which affect their Utility Facilities;
and
3. Keep the Utility Owner involved in making the decisions that affect their facilities so
the Utility Owner is able to provide uninterrupted service to its customers, or be
subject to the least interruption practicable; and
4. Comply with any additional, reasonable service continuity conditions described in the
Work Order(s) executed for the Utility Work.
B. All of the Utility Owner's Facilities shall remain fully operational during all phases of Project
construction, except as specifically allowed and approved by the Utility Owner to be removed
from operation.
XXI. DAMAGE TO FACILITIES AND OTHER PROPERTY.
The Contractor and the Utility Owner shall require their contractors, subcontractors, employees, and
agents to exercise due precaution and care to avoid causing damage to the Facilities and the Project in
performing the Utility Work and the Project Work. The Contractor and the Utility Owner shall be
responsible for any damage caused to the property, facilities, structures, or persons of the other Party
by their respective operations. Said operations include, without limitation, any earthwork, hauling,
equipment placement, material placement, or the performance of the Utility Work or the Project Work.
Each party shall immediately report to the other Party the occurrence of any such damage. Such
Page 19 of24
S.P 1017-12 (T,H. 212)
Agreement Number 86825
damage shall be repaired or compensated at the expense of the party that caused the damage, to the
reasonable satisfaction of the other party.
XXII. DISPUTE RESOLUTION.
Except where expressly exempted from the dispute resolution process by the terms of this Agreement,
every disagreement between the Utility Owner and the Contractor, and/or between the Utility Owner
and MnlDOT arising under this Agreement, is a dispute subject to the terms of this paragraph
("Dispute"). When a Dispute arises, the Utility Owner and the other party(ies) to the Dispute shall
first attempt to informally resolve the Dispute.
If the Dispute is between the Utility Owner and the Contractor, and the parties are unable to reach a
mutually satisfactory resolution, either party may escalate the Dispute to the MnlDOT project manager
(the manager shall be identified by MnlDOT). If the MnlDOT project manager is unable to resolve
the Dispute to the parties' mutual satisfaction, either the Utility Owner or Contractor may escalate the
Dispute to a Dispute Resolution Board ("DRB").
If the Dispute is between the Utility Owner and MnlDOT, the Utility Owner and the MnlDOT project
manager shall first attempt to informally resolve the Dispute. If the Utility Owner and MnlDOT
project manager are unable to reach a mutually satisfactory resolution of the Dispute, either party may
escalate the Dispute to a DRB.
Mn/DOT, the Contractor and the Utility Owner involved in the Dispute shall have one representative
on the DRB. If multiple Utility Owners are involved in the Dispute and there is a conflict between the
Utility Owners, each Utility Owner may select a DRB representative, but the Utility Owner
Representatives shall count as one vote on the DRB, which shall be cast, by majority vote, among the
Utility Owner representatives.
MnlDOT's and Contractor's representative shall be the same person previously selected pursuant to
terms of the Partnering and Dispute Resolution Provisions set forth in Exhibit N, which is attached
hereto and incorporated herein by reference. The Utility Owner(s) representative shall have the
expeïience and qualifications required by Exhibit N, and shall comply with the requirements
applicable to DRB members therein. The chairperson of the DRB established under Exhibit N shall
also serve as chairperson of any ORB established to address a dispute involving a Utility Owner. If
the total number of members on the DRB, counting the chairperson, is an even number, the
chairperson will not vote on the dispute.
The DRB shall hold a prehearing conference at which the dates for the complaining party(ies) to file a
Claim Package and the date for the other party(ies) to file a Reply to Claim Package and hearing
date(s) will be determined. The Claim Package and Reply to Claim Package shall include a
description of the Dispute and all supporting written documentation relied upon and any supporting
legal arguments. The DRB shall seek to reach a determination as quickly as reasonably possible.
Each party represented on the DRB shall pay any fees or other costs charged by their representative on
the DRB, and shall share equally in the ORB's costs including the fees or other costs charged by the
chairperson. Each party shall also be solely responsible for their own costs during the dispute
resolution process.
Page 20 of 24
S,P 1017-12 (T.H. 212)
Agreement Number 86825
It is anticipated that the parties to the DRB will accept the recommendation of the DRB, but the
decision shall not be binding and no party waives the right to seek legal review of the Dispute in court
or to seek any other available legal remedy, including injunctive or other relief.
XXIII. INDEMNIFICATION.
MnlDOT and the Utility Owner will each be responsible for their own acts and omissions and the
results thereofto the extent authorized by law. Minnesota Statutes section 3.736 and other applicable
law govern the State's liability. Minnesota Statutes Chapter 466 and other applicable law govern the
Utility Owner's liability. Each party will be solely responsible for its own employees for any workers
compensation claims.
XXIV. CLAIMS.
Each party is responsible for its own employees for any claims arising under the Workers
Compensation Act. Each party is responsible for its own acts; omissions and the results thereof to the
extent authorized by law and will not be responsible for the acts and omissions of others and the
results thereof. Minn. Stat. § 3.736 and other applicable law govern liability of the State.
xxv. INSURANCE.
This section is not used in this MUA.
XXVI. NO LIENS.
The Contractor, its agents and contractors, shall keep the relocated Facilities free from any statutory or
common law lien arising out of any Utility Work performed, materials furnished, or obligations
incurred by the Contr;lctor, its agents and contractors. The Utility Owner, its agents, and contractors,
shall keep the relocated Facilities and the Project and the Project right of way ftee from any statutory
or common law lien arising out of any Utility Work performed, materials furnished, or obligations
incurred by the Utility Owner, its agents, or contractors.
XXVII. NO OFFSETS.
The Utility Work performed under each Work Order shall be treated as a separate job with separate
billing. There shall be no offsets between amounts owed by one Party to the other, whether for the
same Work Order or for different Work Orders, except for the Betterment, salvage and/or retirement
value credits described herein, for the particular Work Order.
XXVIII. RETENTION OF RECORDS.
All Parties shall keep and maintain all books, papers, records, accounting records, files, reports and
other material relating to the Utility Work it performs (or has performed) pursuant to this MUA,
including detailed records to support all bills submitted by each Party, for a period of six years after
Page 21 of24
S.P 1017-12 (T.H. 212)
Agreement Number 86825
the date of acceptance of the completed Utility Work. Each Party, FHW A, and any other agency
providing funding to MnlDOT (including their respective auditors) shall have access to and shall be
entitled to audit all such records during normal business hours upon reasonable notice to the Party
maintaining such records. MnlDOT, the Contractor, and the Utility Owner shall insert the above
requirements into any contracts entered into for performance of Utility Work and shall also include in
such contracts a clause requiring their contractors to include the above requirements in any
subcontracts or purchase orders. MnlDOT, the Contractor, and the Utility Owner shall mutually agree
upon any financial adjustments found necessary by such audit. If MnlDOT, the Contractor, and the
Utility Owner are unable to agree upon any such adjustment, then the dispute shall be resolved
pursuant to the Dispute Resolution process described in this MUA.
XXIX. THIRD PARTY BENEFICIARY.
There are no third-party beneficiaries to this MUA.
xxx. WAIVER.
A party's failure to enforce a provision of this MUA does not waive the provision, or the party's right
to subsequently enforce it.
XXXI. ADDENDUM.
Before this MUA is executed, the parties may agree to additions or other changes in the terms hereof
in order to address the particular needs or requirements of the Utility Owner. Any such changes (if
any) shall be described in an "Addendum," which shall be attached and incorporated into this MUA by
this reference. In the event of a conflict or inconsistency between any such Addendum and this MUA,
or its incorporated material, and/or its exhibits or attachments, the Addendum shall prevail to the
extent of any such conflict or inconsistency.
XXXII. MERGER! AMENDMENTS.
Once executed, this MUA, along with the associated Work Orders, contains the entire agreement of
the Parties with respect to the subject matter of this MUA and supersedes all prior oral or written
communications, understandings, and agreements between the parties. Any amendment to this
executed MUA or Work Orders must be in writing and will not be effective until signed by the Utility
Owner, the Contractor, MnlDOT, and other state officials as required by law.
Page 22 of 24
S.P 1017-12 (T.R. 212)
Agreement Number 86825
IN TESTIMONY WHEREOF, the parties have duly executed this Agreement by their duly authorized officers
and caused their respective seals to be hereunto affixed.
CITY OF CHANHASSEN
By:
Mayor
Date:
By:
City Manager
Date:
Page 230[24
S.P 1017-12 (T,H. 212)
Agreement Number 86825
STATE OF MINNESOTA
DEPARTMENT OF TRANSPORTATION
State Encumbrance Verification
Individual certifies that fUnds have been encumbered as
Required by Minnesota Statutes §§ 16A,l5 and 16C.05.
By:
Maps Contract Number:
Date:
Maps Order Number:
Department of Transportation
Recommended for Approval:
Approved:
By:
By:
Metro Utility Engineer
Director, Office of Technical Support
Date:
Date:
Department of Administration
By:
Date:
CONTRACTOR, A
By:
Its:
Date:
Page 24 of 24
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S.P. 1017-12 (T.H. 212)
Agreement Number 86825
EXHIBIT B
MnlDOT UTILITY PERMIT
Exhibit B, Page 1 of 5
S.P. 1017-12 (T.H. 212)
Agreement Nwnber 86825
STATE OF MINNESOTA
DEPARTMENT OF TRANSPORTATION SUBMIT 1 (ONE)
COMPLETED FORM
APPLICATION FOR UTILITY PERMIT ON WITH 4 (FOUR) SETS OF
TRUNK HIGHWAY RIGHT OF WAY SKETCHES TO:
Utilities Engineer - MS 678
INSTRUCTIONS 1. Complete only page one (no photocopies) Minnesota Department of Transportation
TO 2. Sign completed form Transportation Building
APPLICANT 3. Include 4 (four) sets of sketches 395 John Ireland Blvd.
SI. Paul, MN 55155-1899
Company Project No,
County T,H. No, SEC, TWP. RGE.
Agreement No.
D New Facility D Replacement Facility CityfT ownship State Project No.
Application is hereby made for pennission to place, construct, and thereafter maintain a
along or across Trunk Highway No, _
I. AERIAl CONSTRUCTION (Check appropriate box) LIGHTING
D Single pole D Other D Open Wire Mounting Height
D H-Frame D Cable Mast Arm Length
D Single pole & H-Frame D Vertical Type of Lamp
D Steel tower D Cross-ann Watts
D Existing pole line Poles D Breakaway D Non-Breakaway
Voltage Number of Conductors Size of Conductors
Minimum height of conductor. ft, along highwav ft, at crossings over highway
II. UNDERGROUND CONSTRUCTION Will Facility be attached to a bridge?
D Direct Buried DYes oNo
Voltage Number of Conductors-Type Size of Conductors, Cable I Depth
CONDUIT CASING
D Plastic Type TYPE o Steel pipe
D Steel pipe Max, Oper, Pres. D Sectional concrete
D Mu~iple tile Wall thickness D Other
D Clay tile Grade Wall thickness
D Sectional concrete Class Grade
D Ductice Iron Size Class
D Other Size
METHOD OF INSTALLING UNDER ROADBEDS (If open trench, explain why necessary) D Directional Boring
D Jacking o OBoring D Pneuma Gopher D Open trench D Other
III. EXTENT & LOCATION OF TREE TRIMMING AND/OR CLEARING:
IV.
Work to start on or after
and to be' completed on or before
V. The applicant, in carrying on all of the work mentioned above or referred to in its Applicant
application and in the Pennit for construction issued therefore, shall strictly confonn to Name of Utility making application
the tenns of the Penn~, and the Rules of Address
City
State Zip
Telephone ( )
Dated this day of ,2
MnIDOT TP-<J2525-03 (7,2000) Revised 5-2O<U
Pursuant to Mmnesoto StaùIIes. Section 161,45, !he loI_ng Rules haw been promulgaled by "'" Commissioner of Transportation (_ pages 2 & 3),
Exhibit B, Page 2 of 5
Page 1
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
MINNESOTA RULES
1983
Adopted as of July 31, 1983
UTILITIES EQUIPMENT
8810.3100 DEFINITIONS
Subpart 1. Interstate highways. Under this order "interstate highways" shall
mean all trunk highways which are not a part of the interstate system.
Subp. 2, Noninterstate highways. Under this order "noninterstate highways" shall
mean all trunk highways which are not a part of the interstate system.
Subp, 3. Trunk highways. Under this order "trunk highways" shall mean all trunk
highway including those which are part of the interstate system.
Subp, 4, Utility. Under this order "utility" shall mean and include all privately,
publicly, or cooperatively owned communication lines and transmission of
e~ectrical energy, oil, gas, water, sewer, steam, and other pipe lines, railways,
ditches, flumes, or other structures which under the laws of this state or the
ordinance of any village or city may be constructed, placed, or maintained across,
along, or on trunk highway right-of-way. Dependent upon the meaning intended in
the context, "utility" shall also mean the utility company, inclusive of any wholly
owned subsidiary.
Statutory Authority: MS § 161.45
88310.3200 PURPOSE AND SCOPE.
Subpart 1. Purpose. The pUIpose of parts 8810.3100 to 8810.3600 is to carry out
the mandate of the legislature and to effectuate that mandate as set forth in the Laws
of Minnesota 1959, chapter 500, article II, section 45 (Minnesota Statutes, section
16J.~~) with reference to the placing, constructing, reconstructing, and maintaining
of utIlitIes across, along, upon or under the right-of-way of trunk highways.
Subp,2. Scope. The scope of parts 8810.3100 to 8810.3600 is confined within the
framework of and consistent with the Laws of Minnesota 1959, chapter 500, article
11, section 45,
Statutory Authority: MS §161.45
8810.3300 PERMITS.
Subpart 1. Construction. Except as otherwise pennitted, utility construction and
relocation on trunk highway right-of-way shall not be commenced until an
application for pennit for construction has been made and such pennit granted. The
pennit for construction sketch shall show the location of the proposed utility with
reference to pertinent features such as the right-of-way lines, curb lines, trunk
highway center line, etc. A copy of the sketch shall be provided for each copy of
such pennit Prints of trunk highway right-of-way maps available upon request
from the Road Plans Information Office, Department of Transportation Building
Saint Paul, Minnesota 55155. '
Subp. 2, Maintenance. The utility shall obtain a work pennit from the office of
the assistant district engineer, maintenance, prior to perfonning service and
maintenance operati,ons on the noninterstate highways when such operations require
opemng and disturbmg the surface of the right-of-way thereof. In all other
instances the utility shaH notify the office of the assistant district engineer,
maintenance, prior to perfonning service and maintenance operations on the non
interstate highways which interfere with the normal flow of traffic thereon,
However, the company may perform service and maintenance operations on the
trunk highways including opening and disturbing the surface of the right-of-way
wIthout a work pennit in those instance where an emergency exists that is
dangero.us to the life or safety of the public and which requires immediate repair.
The utIlity upon knowledge of such an emergency shaH immediately notify the
State Patrol Division, The utility shall take all necessary and reasonable safety
measures to protect the traveling public and shaH cooperate fully with the State
Patrol Division to that end. The utility in such an event will request a work pennit
from the office of the assistant district engineer, maintenance, not later than the
second working day thereafter when a work pennit would ordinarily have been
required but for the emergency.
Subp. 3, Orders to make improvements. If at any time the state of Minnesota,
actmg thr~ugh its commissioner of transportation, shall deem it necessary to
make: any Improvements or changes on all or any part of the right-of-way, then
an~ m such event, the owner of the utility shaH within 15 days after written
notIce from the commissioner of transportation or his duly authorized agent,
proceed to alter, change, vacate, or remove said utility from the trunk highway
nght-of-w~y .so as to conform t~ said trunk highway changes and as directed by
the comrrusslOner of transportatIon. Such work shaH be done without any cost
whatsoever to the state of Minnesota except as otherwise provided by law or
agreement and shall be completed within the date specified in said written notice,
which d~te shall be reasonable under the circumstances. The utility shall assume
all liability and save the state of Minnesota hann1ess from any and all claims of
da.mage, of an~ ~ture w~tsoever occasioned by reason of not having removed
saId , ~tIlity within the tIme specified in said notice, Notwithstanding the
provIsions of parts 8810.3100 to 8810.3600, the state may reimburse a
municipa~ity: for th.e ~ost of the !,u:st relocation of a municipally owned utility
located wlthm the linuts of a mumclpal street at the time that the street was taken
over by .the State as a ~nk highway, when such relocation is required by
constructIon or reconstructIon of the trunk highway,
Subp, 4. Along interstate highways. Utilities along interstate highways shall
be located outside the control-of-access lines except as outlined below, Where
the control-of-access lines coincide with the right-of-way lines, the utilities shall
generally be located on private property, Where the control-of-access lines and
right-of-way lines do not coincide, utilities may in general be located in the area
between them, All utilities shall be serviced and maintained without access from
the ramps, loops, and through traffic roadbeds, Utilities may be serviced from
frontage roads and roads other than another interstate highway which cross either
over or under the interstate highway. At aerial crossings of an interstate
highway, supporting poles may be located on interstate highway right-of-way if
they are a minimum of 30 feet beyond the shoulders of all through traffic
roadbeds; however, in no event shall they be located in a median unless its width
is 8~ feet or more. Manholes and other points of access to underground
crossmgs may be pennitted on the interstate highway right-of-way only when
located o~ts,ide the sh?ulders of the through traffic roadbeds, loops, or ramps.
The reslnctIons of this subpart shall not apply to utility lines which service
facilities required for operating the interstate highway,
There may Ix: extr~m~ cases where, under strictly controlled conditions, a utility
may be pemntted Inside the control-of-access lines along an interstate highway,
In each case there must be a showing that any other utility location is extremely
difficult and unreasonably costly to the utility consumer. that the installation on
the right~of-way ?~ the interstate highway will not adversely affect the design,
constructIon, stability, traffic safety, or operation of the interstate highway and
that
the utility can be serviced without access from through traffic roadbeds, loops, or
ramps,
Subp, 5, Deposit, bond, or undertaking. The commissioner of transportation
may require the utility, or its contractor, to furnish a deposit in the form of a
certified check, a surety bond or corporate undertaking in favor of the state of
Minnesota, c?mmissioner of transportation, for any expense incurred by the state
III the repamng of damage to any portion of the trunk highway right-of-way
cause~ by work performed under a work pennit or a pennit for construction,
mcluding any out of the ordinary engineering supervision and inspection expense
provided by the state, In those instances wherein a deposit is required, the
amount of. the deposit shall be specified in the special provisions of the pennit.
If a check IS furnished, any moneys remaining over and above such expense shall
be returned to the applicant.
Subp, 6, Liability. Except for the negligent acts of the state, its agents. and
employees, the utility shall assume all liability for, and save the state, its agents
and employees, hann1ess from, any and all claims for damages, actions, or
causes of action arising out of the work to be done herein and the continuing uses
by the utility, inc1~ct!ng but not limited to the placing, constructing,
reconstructmg, mamtammg, and using of said utility under this application and
pennit for construction,
Exhibit ß, Page 3 of 5
S.P. 1017-12 (T.R. 212)
Agreement Number 86825
Subp,7, No easement. The work pennit or pennit for construction as issued does
not in any way imply an easement on private property.
Statutory authority: MS § 161.45
8810.3400 STANDARDS FOR WORK CONDUCTED UNDER PERMIT.
Subpart 1. Trees, brush, and vegetation. At the time of construction of the utility
and at the times of subsequent maintenance, prior approval shall be obtained from
the district engineer or his authorized representative for the cutting and trimming of
tress within the trunk highway right-of-way. Wherever trees are cut the resulting
stumps shall be removed unless otherwise provided in the special provisions of the
permit for construction, Any holes caused by stump removal shall be backfilled,
the area leveled, and all materials associated therewith disposed of outside the trunk
highway right-of-way, The utility shall advise the district engineer or his
authorized representative at least 48 hours in advance of its intent to start clearing
and grubbing operations so that the proper supervision can be provided.
Burning or disking operations and/or the use of chemicals to control or kill trees,
brush, and other vegetation is prohibited without prior approval from the assistant
district engineer, maintenance.
Subp, 2 Waterways. All waterways and lines of drainage shall remain operative.
Subp. 3, Topsoil and sod. Wherever topsoil and sod are disturbed they shall be
replaced and maintained satisfactorily until the turf is established.
Subp, 4, Existing utility facilities. The utility facility and installation shall not
interfere with any existing utility facilities on the trunk highway right-of-way,
Subp, 5, Warning devices. When necessary, barricades, warning devices and
flagmen shall be provided by the utility during all phases of their construction and
maintenance operations on the trunk highway right-of-way,
Subp, 6, Restoration to original condition. Upon completion of an installation,
the utility shall restore the trunk highway right of way to its original condition. The
utility shall then notify the office of the assistant district engineer, maintenance, or
project engineer of the completion of the work so that inspection can be made to
detennine its acceptability,
Subp. 7, Conformity. The installations shall be made in confonnity with all
applicable laws, rules, and codes covering said installations, All installations shall
be made in confonnity with rules of governmental agencies for the protection of the
public.
Statutory Authority: MS § 161.45
8810.3500
AERIAL LINES.
There shall be only a single pole line on the trunk highway right-of-way on either
side of the center line thereof, unless otherwise authorized in the special provisions
of the pennit for construction. Longitudinal installations on noninterstate trunk
highways shall normally be located in the outer five feet of the right-of-way, At
crossings of the noninterstate trunk highway, poles shall be placed at a minimum of
30 feet from the shoulder lines of the through roadbeds unless right-of-way widths
are prohibitive to such location, Unless clearly indicated on the pennit for
construction sketch, the location of all brace poles, anchors, and anchor poles within
the limits of the trunk highway right-of-way shall be approved by the district
engineer or his authorized representati ve prior to actual installation, In those
instances in which a utility is issued a pennit or pennits for construction on both
sides of the trunk highway right-of-way in a given area such pennit is conditioned
upon the utility subsequently providing joint use to other utilities upon reasonable
terms mutually agreeable to the utilities,
Statutory Authority: MS §161.45
8810.3600 UNDERGROUND LINES.
All crossings of the roadbeds of the trunk highway shall be made by boring inside a
casing or carrier pipe, or by jacking, unless this procedure is modified in the special
provisions of the pennit for construction, The auger shall not lead the casing or
carrier pipe by more than one inch. Open trenching shall be restricted to the area
from five feet beyond shoulder to the right-of-way line except as modified in the
special provisions of the pennit for construction,
When pipes with bells and flanges are installed, the crossings of the roadbeds of
trunk highway shall be made by boring inside a conduit, as provided in the
preceding paragraph, of jacking a conduit of sufficient diameter to pennit
threading the carrier pipe through it.
All voids caused by jacking or boring shall be filled by pressure grouting, The
grout material shall consist of a sand-cement slurry of at least two sacks of
cement per cubic yard and a minimum of water to assure satisfactory placement.
The underground utilities shall be so installed as virtually to preclude any
necessity for disturbing the roadbeds to perform maintenance operations,
Underground installations shall be accomplished without damaging or destroying
the principal root structure of specimen trees,
Statutory Authority: MN §161.45
NOTE:
As used in Minnesota Ru!es, Utilities Equipment, part 8810.3100 Definitions,
Subpart I, interstate highways shall include all Interstate Highways and Federal
Aid Freeways.
Exhibit B, Page 4 of 5
S.P. 1017-12 (T,H. 212)
Agreement Number 86825
STATE OF MINNESOTA
DEPARTMENT OF TRANSPORTATION
Utility Permit
Reference: Control Section:
T.H.
Attn:
In accordance with Minnesota Statutes Section 161.45, Minnesota Rules Section 8810, and this application
a utility Permit for construction is granted to:
to place, construct and thereafter maintain a:
on or across, the right of way of Trunk Highway No. in the location shown on the sketch which is
part of the applications specified by the Department of Transportation in the attached Special Provisions.
Recommended for approval:
Dated this
day of
20
District/Division Representative
(Date)
Commissioner of Transportation
Transportation Building
St. Paul, MN 55155-1899
Approved by:
Division Engineer
Federal Highway Administration
By
Utilities Engineer
(Date)
COPIES:
Utilities Engineer
Applicant
District Engineer
Permit No.
Assistant District Engineer-
Maintenance
Amount of Surety Bond Required
Project Engineer
Exhibit B, Page 5 of 5
S.P. 1017-12 (T.R. 212)
Agreement Number 86825
EXHIBIT C
NOT USED
S.P. 1017-12 (T.R. 212)
Agreement Number 86825
EXHIBITD
Mn/DOT DESIGN-BUILD PROJECT
UTILITY DESIGN SHEET
Utility Owner: City ofChanhassen
D Public
. I Utility Co. # I
D Pnvate
Conflict #
SECTION TO BE COMPLETED PRIOR TO NEGOTIATION MEETING I
Existine Condition
1. General Location:
2. Utility type: D electric Dgas D communications D water D sanitary D cable TV
D Other:
3. Location by: o Utility plat maps; Field located and surveyed: DYes DNo; Pothole DYes DNo
If pothole, # from: D Mn/DOT work or D DBC work SUE contractor used:
Station: to Station: Dist. from CL: Rt. I Lt.
4. Utility size & materials:
5. Encased: D No DYes, if so size & material:
This section completed by DBC Rep.: Date:
SECTION TO BE COMPLETED AT NEGOTIATION MEETING I
Proposed Resolution
I. DBC Recommends Utility be: o left alone D modified o removed o relocated o upgraded D abandoned
Conflict with:
2. This utility may be modified/relocated to :
Station: to Station: Dist. from CL: Rt./Lt.
3.Utility in: 0 Mn/DOT RIW o other public RIW D Easement (attach copy) o not in RIW
4. Who is to do the design? o Utility Company ( UC ) D DesignlBuild Contractor (DBe)
5. Who is to do construction/relocation? D Utility Company ( UC ) D DesignlBuild Contractor (DBe)
6. UC to perfonn inspection? D No DYes, if so conditions:
7. Number of days required for prior notification by DBC for construction relocation by UC: days
8. Number of days required to complete Design: days; Construction: days.
9. Any construction details unique to this location? DNo DYes, Describe:
10. Utility can only be disconnected for: dayslhours.
II. Other proposed action:
12. Detailed plan sheet attached
This section completed by: Mn/DOT UC ;DBC Date:
Exhibit D, Page I of 1
S.P 1017-12 (T.H, 212)
Agreement Number 86825
EXHIBIT E
WORK ORDER
MASTER UTILITY AGREEMENT ("MUA")
MUA No.: 86825 UDS No.:
Work Order No.:
Date:
Work Order Revision No,: (to be filled in by MnlDOT)
Date:
Change Order No.(if applicable): (to be filled in by MnlDOT)
NAME OF "Utility Owner": City of Chanhassen
LOCA TIONIDESCRIPTlON OF WORK
Location of the Utility Work Covered By This Work Order is Described in Attached UDS.
General Description of the Utility Work Covered By This Work Order:
ALLOCA TlON OF RESPONSffiILITY FOR UTILITY WORK
For DesigiJ: by Contractor: ;
by Utility Owner:
For Construction: by Contractor:
by Utility Owner:
Other (Explain):
Exhibit E, Page 1 of 6
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
COST RESPONSIBILITY
For Design: MnlDOT Pays $ , Utility Owner Pays $
For Construction: MnlDOT Pays $ ; Utility Owner Pays $
For Inspection: MnlDOT Pays $ ; Utility Owner Pays $
For Replacement Easements: MnlDOT Pays $ ; Utility Owner Pays $
Lump Sum $ , OR, Actual Costs Not To Exceed $
SCHEDULE (THIS WORK ORDER ONLY): SCHEDULE (THIS WORK ORDER ONLY):
For Design: For Construction:
Start Date: Start Date:
Completion Date (CD): Completion Date (CD):
Review: Within Days of CD Inspection: Within Days of CD
-
Exhibit E, Page 2 of 6
S.P. 1017-12 (T,H. 212)
Agreement Number 86825
COST ESTIMATE SUMMARY
The Contractor shall provide a summary of financial costs associated with all Utility Work performed by the Utility
Owner and/or by the Contractor under this Work Order, whether that Utility Work is to be performed on a lump sum
or an actual cost basis, in the format described below. Include appendices detailing the basis for the numbers
entered in the financial summary.
Item Description Cost Ref: Appendix
1. Direct Labor $
2. Inspection Cost $
3. Material $
4. Engineering $
5. Equipment $
6. Markup $
7. Subtotal $
8. Subcontractors $
9. Markup $
10. Replacement Easement $
11. Compensable Property Rights $
12. Total $
FOR Mn/DOT INTERNAL ACCOUNTING PURPOSES ONLY:
MUA Encumbrance: $
MnlDOT Costs incurred under: MUA $
DB Contract $
; and/or
Total To Date:
MUA $
; and/or DB Contract $
Remaining MUA Balance: $
o If the box to the left is checked and initialed by MnlDOT, this Work Order will also function as a Change Order
pursuant to Book 1 of the Contract Documents. In that event certain Change Order provisions will be attached,
as Attachment A. However, Attachment A shall be between MnlDOT and the Contractor only, and the Utility
Owner shall not be a party to or affected thereby.
o If the box to the left is checked and initialed by MnlDOT, this Work Order will NOT function as a Change
Order pursuant to Book 1 of the Contract Documents.
THIS WORK ORDER ("Work Order") is entered into by and among MnlDOT, the Utility Owner, and the
Contractor, to implement in part that certain Master Utility Agreement (MUA) identified as MnlDOT Agreement
No. 86825, as the same may be amended from time to time. The information on the face page(s) to which this Work
Order is attached is a part of this Work Order.
UTILITY Work To Be Done
MUA. This Work Order is issued to authorize the Utility Work described herein. The MUA and all of the
provisions thereof are incorporated into this Work Order by this reference. All attachments referenced in this Work
Order are incorporated herein by such reference. All Utility Work shall be performed in accordance with the
requirements of the MUA, but this Work Order shall prevail to the extent of any inconsistency between the
provisions of this Work Order and the MU A.
Exhibit E, Page 3 of 6
S.P. 1017-12 (T.R 212)
Agreement Number 86825
Scope of Utility Work. The Utility Owner and the Contractor shall each perform the design and construction work
specified as their respective responsibility on the face page of this Work Order.
Schedule. Where the Utility Owner or the Contractor is responsible to perform the design work described herein,
the Utility Owner or the Contractor shall complete the design work described herein in accordance with the schedule
specified on the face page of this Work Order. Where the Utility Owner or the Contractor is responsible to perform
the construction work described herein, the Utility Owner or the Contractor shall commence the construction work
described herein only after approval of the Final Design by the other party for such Utility Work as provided below.
The Utility Owner or the Contractor shall complete such construction work in accordance with the schedule
specified on the face page of this Work Order.
PERFORMANCE OF THE UTILITY WORK
Design. The design to be furnished, whether by the Utility Owner or by the Contractor, pursuant to this Work Order
shall be substantially in accordance with the preliminary plan attached to this Work Order as Attachment _, the
specifications and standards attached to this Work Order as Attachment _, and shall be consistent and compatible
with the relevant Project Plans. All plans for the Utility Work are subject to review and approval by the Utility
Owner and by the Contractor, in accordance with the time frames and procedures set forth in the MUA, as may be
modified by the Work Order.
Construction. The construction to be performed pursuant to this Work Order, whether by the Utility Owner or by
the Contractor, shall be performed substantially in accordance with the final approved design plans. Deviations
from the final approved design plans may occur only in conformity with the MUA. Promptly upon completion, and
in no event later than seven days after completion, either party performing construction shall obtain a "Construction
Inspection Approval Letter" for the Utility Work from the other party.
LIABILITY FOR UTILITY WORK
In accordance with the MUA, MnlDOT and the Utility Owner shall each be responsible for the Utility Relocation
Costs specified on the face page of this Work Order (except for any Betterments as described below, which shall be
at 100% Utility Owner's expense).
COST ESTIMATE
The party responsible for the performance of the design and/or the construction (as applicable) of the Utility Work
authorized by this Work Order shall prepare a cost estimate for that Utility Work, whether that Utility Work is to be
performed on a lump sum or an actual cost basis, in accordance with the MUA. Such estimates shall be attached and
incorporated into this Work Order.
PRICE OF UTILITY WORK
Utility with Property Rights (MnJDOT pays). [The price of the Utility Work (except for any betterments) was
included in MnlDOT's Design-Build Contractor's Proposal Price and is included in the DB Contract Price.] [or]
[The parties have agreed to the following lump sum amount for the Utility Work: $ . [or] If no lump
sum, the par¡ies have agreed that the actual cost for the Utility Work is estimated to be (but shall not exceed)
$ , based upon the attached cost estimate(s).
Utility located on Interstate Highway (MnJDOT pays). [The price of the Utility Work (except for any
betterments) was included in MnlDOT's Design-Build Contractor's Proposal Price and is included in the DB
Contract Price.] [or] [The parties have agreed to the following lump sum amount for the Utility Work:
$ . [or] If no lump sum, the parties have agreed that the actual cost for the Utility Work is estimated
to be (but shall not exceed) $ , based upon the attached cost estimate(s).
Municipal Utility with Property Rights or first move (MnJDOT pays). [The price of the Utility Work (except for
any betterments) was included in MnlDOT's Design-Build Contractor's Proposal Price and is included in the DB
Contract Price.] [or] [The parties have agreed to the following lump sum amount for the Utility Work:
$ . [or] If no lump sum, the parties have agreed that the actual cost for the Utility Work is estimated
to be (but shall not exceed) $ , based upon the attached cost estimate(s).
Exhibit E, Page 4 of 6
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
Utilitv without Property Riehts (Utility Owner pays).
[The parties have agreed to the following lump sum amount for the Utility Work: $ ;] [or] [If no
lump sum, the parties have agreed that the actual cost for the Utility Work is estimated to be (but shall not exceed)
$ , based upon the attached cost estimate(s)].
The cost amount stated above is an estimate of the Utility Work. Authorized expenditures and reimbursements will
be based on the terms of the MUA.
QUITCLAIM DEED FOR PROPERTY RIGHTS
The Utility Owner shall convey to Mn/DOT by Quitclaim Deed all of the Utility Owner's right, title, and interest in
and to all real property taken by Mn/DOT for the Project. The Quitclaim Deed will be executed at the time the
relocation has been completed and before final payment is made to the Utility Owner for the Work Order. The
Quitclaim Deed will be prepared by Mn/DOT using the following format:
For a valuable consideration, , a corporation under the laws of the State of
Grantor, hereby conveys and quitclaims to the State of Minnesota, Grantee, real property in
County, Minnesota, described as follows:
All the following:
That part of easement over, under, and across that part of the
Quarter of the Quarter of Section _, Township _ North, Range _ West, shown
as Parcel _ on Minnesota Department of Transportation Right of Way Plat No. _, as said
plat is on file and of record in the office of the County Recorder in and for
County, Minnesota.
together with all hereditaments and appurtenances belonging thereto.
By its execution of a Work Order, the Utility Owner grants to Mn/DOT the right of immediate entry upon such lands
as needed for construction of the Project for the purpose of carrying out the proposed public improvement, providing
prior to their rearrangement such entry does not interfere with the Utility Owner's Facilities.
BILLING AND PAYMENT
MnlDOT Responsibilitv for Payment. Billing and payment for Utility Work performed by MnlDOT's Design-
Build Contractor and inspected by the Utility Owner shall be in accordance with the Design-Build Contract. Billing
and payment for Utility Work performed by the Utility Owner shall be in accordance with the MUA.
Utilitv Owner's Responsibility for Pavment[The price of the Utility Work (except for any betterments) was
included in Mn/DOT's Design-Build Contractor's Proposal Price and is included in the DB Contract Price.] [or]
[The parties have agreed to the following lump sum amount for the Utility Work: $ . [or] If no lump
sum, the parties have agreed that the actual cost for the Utility Work is estimated to be (but shall not exceed)
$ , based upon the attached cost estimate(s). Billing and payment for Utility Work performed by
Mn/DOT's Design-Build Contractor, not including inspection by the Utility Owner, shall be in accordance with the
MUA.
Billing and payment for any Betterment Work shall be in accordance with the MUA.
Exhibit E, Page 5 of 6
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
BETTERMENT, RETIREMENT V ALUE, SALVAGE
[Note: Select (and complete, if necessary) the one appropriate provision, and delete the inapplicable provisions]:
1. The Utility Work includes Betterment to the Utility Owner's Facilities by reason of:
in the estimated amount of $ ; or
2. The Utility Work does not include any Betterment; or
3. MnlDOT and the Utility Owner have not yet determined if the Utility Work includes any Betterment, or
have not yet determined the amount attributable to Betterment. Upon such determination, MnlDOT and the
Utility Owner shall revise this Work Order as appropriate.
The Utility Owner shall credit MnlDOT, for the actual Utility Relocation Costs of any Betterment, salvage value,
and retirement value on the facilities as required pursuant to the MUA.
EFFECTIVE DA TE
This Work Order shall be effective as of the "Date" filled in by MnlDOT on the face page of this Work Order.
IN WITNESS WHEREOF, MnlDOT, the Utility Owner, and the Contractor have executed this Work Order as of
the "Date" set forth on the face page of this Work Order.
Utility Owner:
By:
Print Name:
Title:
Contractor:
By:
Print Name:
Title:
Mn/DOT:
By:
Print Name:
Title:
State Encumbrance Verification
N/A, funds encumbered under Master Utility Agreement
Exhibit E, Page 6 of 6
S,P 1017-12 (T.H, 212)
Agreement Number 86825
EXHIBIT F(I)
UTILITY OWNER'S DESIGN APPRO V AL LEITER
THIS DESIGN APPROVAL LEITER ("this Letter") is to be executed by the City of
Chanhassen ("Utility Owner"). Execution of this Letter by the Utility Owner indicates the
Utility Owner's approval of the Utility Design Work performed and completed by the
Contractor. The Utility Design Work to be approved by the Utility Owner by its execution of
this Letter is specifically described below.
Performance of that Utility Design Work by the Contractor implemented, in part, that certain
MUA No. 86825, dated , entered into by and among Mn/DOT and
the Utility Owner, as the same may be amended from time to time. The information in table
form below is a part of this Letter.
MUA No.: 86825
DDS No.:
Work Order No.:
Date:
Work Order Revision No.:
Date:
Utility Owner's Name: City of Chanhassen
UTILITY OWNER'S APPROVAL SIGNATURE
The signature below by the Utility Owner's representative authorized to approve the Utility
Design Work under the Work Order, as described above, indicates that the Utility Design Work
completed by the Contractor is thereby approved by the Utility Owner, and that such Utility
Design Work was performed satisfactorily in accordance with all applicable MUA standards and
Work Order requirements.
Signature:
Date:
Once the Utility Owner signs this Design Approval Letter, if the Utility Owner will be
performing the Construction Utility Work, then the Contractor will issue a notice to proceed to
the Utility Owner for that Construction Utility Work.
Exhibit F(l), Page 1 of 2
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
IF THIS LETTER IS NOT SIGNED BY THE UTITLITY OWNER, the Utility Owner shall
state below its basis for not approving the Utility Design Work:
cc: MnlDOT
Contractor
Exhibit F(l). Page 2 of 2
S,P 1017-12 (T.H, 212)
Agreement Number 86825
EXHIBIT F(2)
CONTRACTOR'S DESIGN APPROVAL LETTER
THIS DESIGN APPROVAL LEITER ("this Letter") is to be executed by the Contractor.
Execution of this Letter by the Contractor indicates the Contractor's approval of the Utility
Design Work performed and completed by the City of Chanhassen ("Utility Owner"). The
Utility Design Work to be approved by the Contractor by its execution of this Letter is
specifically described below.
Performance of that Utility Design Work by the Utility Owner implemented, in part, that certain
MUA No.86825, dated , entered into by and among MnlDOT and the
Utility Owner, as the same may be amended from time to time. The information in table form
below is a part of this Letter.
MUA No.: 86825
UDS No.:
Work Order No.:
Date:
Work Order Revision No.:
Date:
Utility Owner's Name: City of Chanhassen
CONTRACTOR'S APPROVAL SIGNATURE
The signature below by the Contractor's representative authorized to approve the Utility Design
Work under the Work Order, as described above, indicates that Utility Design Work completed
by the Utility Owner is thereby approved by the Contractor as being compatible with the Project,
and that such Utility Design Work was performed satisfactorily in accordance with all applicable
MUA standards and Work Order requirements.
Contractor:
Signature:
Date:
Once the Contractor signs this Design Approval Letter, if the Utility Owner will be performing
the Construction Utility Work, then the Contractor will issue a notice to proceed to the Utility
Owner for that Construction Utility Work.
Exhibit F(2), Page 1 of 2
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
IF THIS LETTER IS NOT SIGNED BY THE CONTRACTOR, the Contractor shall state below
its basis for not approving the Utility Design Work:
cc: Mn/DOT
Utility Owner
Exhibit F(2), Page 2 of 2
S.P 1017-12 (T.H. 212)
Agreement Number 86825
EXHIBIT G(1)
UTILITY OWNER'S CONSTRUCTION INSPECTION ACCEPTANCE LETTER
TillS CONSTRUCTION INSPECTION ACCEPTANCE LETTER ("this Letter") is to be
executed by the City of Chanhassen ("Utility Owner"). Execution of this Letter by the Utility
Owner indicates the Utility Owner's acceptance of the Utility Construction Work perfonned and
completed by the Contractor. The Utility Construction Work to be accepted by the Utility
Owner by its execution of this Letter is specifically described below.
Perfonnance of that Utility Construction Work by the Contractor implemented, in part, that
certain MUA No. 86825, dated , entered into by and among MnJDOT
and the Utility Owner, as the same may be amended from time to time. The information in table
fonn below is a part of this Letter.
MUA No.: 86825 UDS No.:
Work Order No.: Date:
Work Order Revision No.: Date:
Utility Owner's Name: City of Chanhassen
UTILITY OWNER'S ACCEPTANCE SIGNATURE
The signature below by the Utility Owner's representative authorizes to accept the Utility
Construction Work under the Work Order, as described above, indicates that the Utility
Construction Work completed by the Contractor is thereby accepted by the Utility Owner, and
that such Utility Construction Work appears to be perfonned satisfactorily in accordance with all
applicable MUA standards and Work Order requirements.
Utility Owner:
Signature:
Date:
Exhibit G(1), Page 1 of 2
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
IF THIS LETTER IS NOT SIGNED BY THE UTILITY OWNER, the Utility Owner shall state
below its basis for not accepting the Utility Construction Work:
cc: Mn/DOT
Contractor
Exhibit 0(1), Page 2 of2
S.P 1017-12 (T.H, 212)
Agreement Number 86825
EXHIBIT G(2)
CONTRACTOR'S CONSTRUCTION INSPECTION APPROVAL LETTER
THIS CONSTRUCTION INSPECTION APPROVAL LETTER ("this Letter") is to be executed
by the Contractor. Execution of this Letter by the Contractor indicates the Contractor's approval
of the Utility Construction Work performed and completed by the City of Chanhassen ("Utility
Owner"). The Utility Construction Work to be approved by the Contractor by its execution of
this Letter is specifically described below.
Performance of that Utility Construction Work by the Utility Owner implemented, in part, that
certain MUA No. 86825, dated , entered into by and among MnlDOT
and the Utility Owner, as the same may be amended from time to time. The information in table
f b 1 f h' Le
orm e ow IS a part 0 t IS tter.
MUA No.: 86825 UDS No.:
Work Order No.: Date:
Work Order Revision No.: Date:
Utility Owner's Name: City of Chanhassen
CONTRACTOR'S APPROVAL SIGNATURE
The signature below by the Contractor's representative authorized to approve the Utility
Construction Work under the Work Order, as described above, indicates that the Utility
Construction Work completed by the Utility Owner is thereby approved by the Contractor as
being compatible with the Project, and that such Utility Construction Work was performed
satisfactorily in accordance with all applicable MUA standards and Work Order requirements.
Contractor:
Signature:
Date:
Exhibit 0(2), Page I of 2
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
IF TillS LETTER IS NOT SIGNED BY THE CONTRACTOR, the Contractor shall state below
its basis for not approving the Utility Construction Work:
cc: Mn/DOT
Utility Owner
Exhibit G(2), Page 2 of 2
S,P 1017-12 (T.H, 212)
Agreement Number 86825
EXHIBIT G(3)
UTILITY OWNER'S CONSTRUCTION INSPECTION APPROVAL LETTER
THIS CONSTRUCTION INSPECTION APPRO V AL LETTER ("this Letter") is to be executed
by the City of Chanhassen ("Utility Owner"). Execution of this Letter by the Utility Owner
indicates the Utility Owner's approval of the Utility Construction Work performed and
completed by the Contractor. The Utility Construction Work to be approved by the Utility
Owner by its execution of this Letter is specifically described below.
Performance of that Utility Construction Work by the Contractor implemented, in part, that
certain MUA No. 86825, dated , entered into by and among MnlDOT
and the Utility Owner, as the same may be amended from time to time. The information in table
form below is a part of this Letter.
MUA No.: 86825 UDS No.:
Work Order No.: Date:
Work Order Revision No.: Date:
Utility Owner's Name: City of Chanhassen
UTILITY OWNER'S APPROVAL SIGNATURE
The signature below by the Utility Owner's representative authorizes to approve the Utility
Construction Work under the Work Order, as described above, indicates that the Utility
Construction Work completed by the Contractor is thereby approved by the Utility Owner, and
that such Utility Construction Work was performed satisfactorily in accordance with all
applicable MUA standards and Work Order requirements.
Utility Owner:
Signature:
Date:
Exhibit 0(3), Page 1 of 2
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
IF THIS LETTER IS NOT SIGNED BY THE UTILITY OWNER, the Utility Owner shall state
below its basis for not approving the Utility Construction Work:
cc: MnlDOT
Contractor
Exhibit 0(3), Page 2 of2
S.P 1017-12 (T.H, 212)
Agreement Number 86825
EXHIBIT H
MUA DEFINITIONS
The Following Definitions Apply to Terms Used in the MUA
Approve, or Approval
Formal conditional determination in writing that a particular matter or item
appears to conform to the requirements of the MUA.
Formal conditional determination in writing by MnlDOT that a particular matter
or item is good or satisfactory for the Project. Such determination may be based
on requirements beyond those set forth in the MUA and may reflect preferences
of MnlDOT.
Accept, or Acceptance
Applicable Laws
All applicable federal, state and local laws, codes, ordinances, rules, regulations,
judgments, decrees, directives, guidelines, policy requirements, judgments,
decrees, directives, guidelines, policy requirements, orders and decrees of any
Governmental Person having jurisdiction over the Project or Site, the practices
involved in the Project or Site, any Work, or any Utility Work being performed
by a Utility Owner.
Betterment
The upgrading (e.g., increase in capacity) of a utility being relocated that is not
attributable to construction of the Project or is made solely for the benefit of and
at the election of the utility owner (not including a technological improvement
which is able to achieve such upgrade at costs equal to or less than the costs of a
"like for like" replacement or relocation). The use of new materials or
compliance with current standards in the performance of Utility Work is not
considered a Betterment.
Contract, or DB Contract
The Design-Build Contract between MnlDOT and the Contractor for the
Design-Build Project.
The Design-Build Contractor engaged by Mn/DOT under the Contract to
perform Work, render services, and/or provide materials, equipment, or other
property with respect to the design and construction of the Project.
Contractor
Day(s)
Calendar Day(s)
Design-Build Project
The Project.
Facilities
Same definition as "Utility".
Final Acceptance
The acceptance of the Utility Work, as established by issuance of the
Construction Inspection Approval Letter.
Final Design
The final design for the Utility Work, or any portion thereof, as developed by
the Contractor or the Utility Owner.
Force Account
A force account basis of payment shall have the meaning set forth in the
Mn/DOT Standard Specifications for Construction, section 1904.
Force Majeure
An event beyond the control of the party performing the work, not due to an act
or omission of the party performing the work, its partners, joint venture
members, subcontractors or subconsultants, at any tier, and their employees,
agents and officers and all other persons for whom the party performing the
work may be legally or contractually responsible, which materially and
adversely affects the party's ability to meet its obligations under this MUA, to
the extent that the event (or the effects of which event) could not have been
Exhibit H, Page I of 4
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
avoided or prevented by due diligence and use of reasonable efforts by the party
performing the work. Notwithstanding the foregoing, the term "Force Majeure"
shall not include normal weather.
Governmental Person
Any federal, state, local or foreign government and any political subdivision or
any governmental, quasi-governmental, judicial, public or statutory
instrumentality, administrative agency, authority, body or entity. The term
includes the State and agencies and subdivisions thereof, other than MnlDOT.
In-Place/Out -of-Service
The work necessary for each Utility (including appurtenances) to decommission
a Utility which Utility is not removed. The Utility must be taken out of use
using proper Utility Owner and/or industry procedures (e.g., flushing, capping,
filling with grout or sand, etc.) or other procedures Approved by MoDOT.
Incidental Utility Work
All of the following work that is necessary or determined by the Contractor to be
convenient for the construction and/or accommodation of the Project: (a)
Protection of Existing Utilities and (b) In-Place/Out-of-Service of Public
Utilities.
MnlDOT
Minnesota Department of Transportation.
Mn/DOT Utility
Representati ve
The MnlDOT Utility Director for the Project, acting directly or
through an authorized representative who is responsible for administrative
supervision of Utility Work for the Project.
MUA
Master Utility Agreement - An agreement made between MnlDOT, the
Contractor and a Utility Owner which provides a general framework for
addressing Utility conflicts associated with the Project, as the same may be
amended from time to time.
Owner
Same as "Utility Owner."
Private Utility
A Utility that is owned by a Private Utility Owner.
Private Utility Owner
Any owner or operator of a Utility which is not a Public Utility Owner.
Project
The Project Work in the portions ofT.H. 212 R/W, as defined in Book 1 of the
design-build Contract.
Project Work or Work
All duties and services to be furnished and provided by Contractor pursuant to
the design build contract, including the administrative, design, engineering,
quality control, quality assurance, Utility Work, procurement, legal,
professional, manufacturing, supply, installation, construction, supervision,
management, testing, verification, labor, materials, equipment, documentation
and all other efforts necessary or appropriate to achieve final acceptance from
MnlDOT, except for those efforts which the design build contract or the MU A
specify will be performed by MnlDOT or other persons. In certain cases the
term is also used to mean the products of the Project Work.
Protection of Existing
Utilities
Any activity undertaken to avoid damaging a Utility which does not
involve removing or relocating that Utility, including staking the location of a
Utility, avoidance of a Utility's location by construction equipment, installing
steel plating or concrete slabs, encasement in concrete, temporarily de-
energizing power lines, and installing physical barriers. For example,
temporarily lifting power lines without cutting them would be considered
Protection of Existing Utilities; whereas temporarily moving power lines to
Exhibit H, Page 2 of 4
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
another location after cutting them would be considered a temporary Utility
Relocation.
Public Utility
A Utility that is owned by a Public Utility Owner.
Public Utility Owner
A municipality, county or other political subdivision of the State of Minnesota.
Right of Way
The real property (which term is inclusive of all estates and interests in real
property) which is necessary for ownership and operation of the Project. The
term specifically excludes (1) the utility easements; and (2) any temporary
easements or other real property interests which the Contractor deems necessary
or advisable in connection with:
(a) Construction of the Project; and/or
(b) Relocation of Utilities
The term "right of way" is sometimes used to indicate Project right of way and
is sometimes used to indicate rights of way for other facilities.
R/W
Right of way.
Service Line
A Utility line, the function of which is to connect an individual service location
(e.g., a single family residence or an industrial warehouse) to another Utility line
which connects more than one such individual line to a larger system. The term
"Service Line" also includes any Utility on public or private property that
services structures located on such property.
Site
The parcels of Right of Way identified on the R/W Plans or on which the Project
is to be constructed and installed as well as all other areas in the vicinity used by
Contractor for construction Work.
State
The State of Minnesota acting through its elected officials and their authorized
representative, or the State of Minnesota in the geographic sense, depending on
the context.
Technical Criteria
The criteria describedîn the MUA that establishes the minimum acceptable
standards of quality, materials, and performance for the Utility Work, and which
will be used as a basis for reviews, and as a basis for Final Acceptance.
Utility
(1) A privately, publicly or cooperatively owned line, facility and/or system for
producing, transmitting or distributing communications, power, cable television,
electricity, light, heat, gas, oil, crude products, water, steam, waste, storm water
not connect.ed with the highway drainage, signal systems and other products that
directly or indirectly serve the public, and/or; (2) a privately owned irrigation
facility. The necessary appurtenances to each utility facility shall be considered
part of such utility. The term "utility" is also sometimes used to refer to the
owner or operator of any such line, facility and/or system. The term "utility"
shall specifically exclude storm water facilities connected with drainage of the
roadway.
Utility Design Sheet
(UDS)
A form to be prepared by the Design-Build Contractor, which will
document the existing conditions of a Utility and the final Relocation
recommendation to mitigate potential conflict. This form will be signed by
MnlDOT, the Utility Owner, and the Design-Build Contractor and will be an
attachment to the respective Work Order.
Exhibit H, Page 3 of 4
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
Utility Information Sheet
(VIS)
Utility Owner
Utility Permits
Utility Relocation
Utility Relocation Plans
Utility Removal Work
Utility Tracking Report
Utility Work
Work Order
A form, completed for each Utility, which documents the existing
conditions of a Facility and a preliminary Utility Relocation recommendation to
mitigate potential conflict. The information was obtained by MnlDOT in
cooperation with the Utility Owner. The form was signed by MnlDOT and the
Utility Owner.
The owner or operator of any Utility (including both Public Utility Owners and
Private Utility Owners).
All appropriate approvals, exemptions, filings, licenses, permits, and
registrations and any other Governmental Approvals required by or with any
Governmental Person or Utility Owner necessary for any Utility Relocation.
Each removal, relocation, in-place/out -of-service and/or Protection of Existing
Utilities (including provision of temporary services as necessary) of any and all
Utilities that is necessary in order to permit construction of the Project.
The design plans for Relocation of a Utility impacted by the Project to be
prepared by the Contractor or the Utility Owner.
Work necessary to remove any Utilities (whether or not in use as of the date of
Notice-to-Proceed) for which leaving the Utilities in-place is not feasible or not
permitted, or which the Contractor otherwise proposes to be removed in order to
accommodate the Project.
A MnlDOT report summarizing Utility conflicts, as shown on the VISs, for all
Utility Owners within the corridor.
The Work associated with Relocation of Utilities, including the design,
construction, installation, manufacture, supply, testing and inspection,
adjustments (including, but not limited to manholes and valves), and other
services required by the MUA and/or by Work Orders issued thereunder,
including all labor, materials, equipment, supplies, utilities, and subcontracted
services provided or to be provided by the Contractor and/or the Utility Owner
to fulfill obligations under the MUA and/or Work Orders issued thereunder.
An ordering agreement (as the same may be amended from time to time) among
MnlDOT, Utility Owner, and the Contractor, providing detailed information and
terms relating to the Utility Relocation of a particular utility, and authorizing
that Utility Relocation, which is executed pursuant to a MUA.
Exhibit H, Page 4 of 4
S.P 1017-12 (T.H, 212)
Agreement Number 86825
EXHIBIT I
MN/DOT NOTICE AND ORDER
Exhibit I, Page I of 2
S,P. 1017-12 (T.H. 212)
Agreement Number 86825
CITY OF CHANHASSEN
NOTICE AND ORDER
You are hereby notified that the Minnesota Department of Transportation (MnlDOT) will be
perfonning construction upon, along and adjacent to Trunk Highway 212 located in Hennepin and Carver
Counties, Minnesota, within the city limits of Eden Prairie, Chanhassen, Chaska and Carver. The Project
includes improvements to approximately 11.75 miles from the intersection of existing T.H. 312 and East Prairie
Road (CSAH 4) to 0.75 miles west of the intersection of existing 212 and Carver County Road 147. The project
includes grading, surfacing, noise benns, noise walIs, ponds, signals, lighting, signing and bridges, hereinafter
referred to as the "Project." The City of Chanhassen (Utility Owner) has certain utility facilities in the right-of-
way of Trunk Highway 212 and/or Trunk Highway 312, CSAH 4, and Carver County Road within the limits of
the construction project. Since the continued presence of the utility facilities will materially interfere with the
construction, the relocation and/or adjustment of the facilities wilI be required.
Therefore, in accordance with the terms of the pending Master Utility Agreement (MUA) No. 86825 the
utility permit, and this notice, and our correspondence of September 27, 2004; you are hereby ordered to relocate
and/or adjust your utility facilities and to commence work by contacting MnlDOT's Design-Build Contractor to
schedule the work and to begin obtaining any needed materials. For relocation and/or adjustment work, you are
required to comply with the terms of the MUA and coordinate such relocation and/or adjustment with the Design-
Build Contractor and MnlDOT in accordance with the same.
A copy of this Notice aúd Order will be provided to the Design-Build Contractor who is awarded the
construction contract for this project. In scheduling the construction staging, the Design-Build Contractor will rely
upon your prompt attention to your obligations under this Notice and Order and the MUA.
Failure to comply with this Notice and Order and/or the MUA wiIl make Utility Owner liable for any and
all damages that result therefrom as specified in the MUA. In the event that you fail to comply with your obligations
under this Notice and Order, MnlDOT may assign its rights for compensation due to delay of work to MnlDOT's
DesignlBuild Contractor. Non-compliance may also result in legal action by MnlDOT to compel compliance with
the Notice and Order. Failure to comply with this Notice and Order and/or the MUA shall be considered as non-
compliance. MnlDOT will take appropriate or necessary actions to obtain compliance with this Notice and Order.
Upon completion of any utility relocation and/or adjustment that Utility Owner performs pursuant to the tenns of the
MUA, Utility Owner shall restore drainage and slopes to the satisfaction of MnlDOT's Design-Build Contractor. In
addition, Utility Owner shall restore all polIution control measures that have been installed by MnlDOT's Design-
Build Contractor in accordance with the National Pollutant Discharge Elimination System permit issued for
Mn/DOT's construction project, which are disturbed by the Utility Owner's relocation and/or adjustment operations.
Date: September 27, 2004
Carol Molnau
Commissioner of Transportation
B~~/U
Marilyn Remer
Utility Agreements Engineer
Exhibit I, Page 2 of 2
S,P 1017-12 (T.H. 212)
Agreement Number 86825
EXHIBIT J
UTILITY OWNER'S REIMBURSEMENT INVOICE FORM
Utility Owner Name: Project No:
City of Chanhassen Sub Account:
Utility Owner Address: Project Location:
7700 Market Boulevard Box 147
Chanhassen, MN 55317-0147
MUA Number and Date: Work Order Number and Date:
86825
Invoice Number and Date: Estimated Percentage of Work Completed
Under this Work Order: %
Lump Sum: Actual Cost:
Estimated cost not to exceed:
$ $
Previously Billed: Previously Billed:
$ $
This Invoice: This Invoice:
$ $
Remaining: Remaining:
$ $
Comments: Comments:
I, the undersigned, certify that: 1) all bills that support this InvoicelPayment Request are attached; and 2) the Total
Current Payment Request described above complies with all applicable MUA and Work Order terms:
Signature Title Date
*** Fully executed Exhibit F must be attached to Final Billing for Design
*** Fully executed Exhibit G must be attached to Final Billing for Construction
addition, Utilitv Owner shall restore all nolllltion rontrol mp"~l1rp~ th"t h"",. h,.~" ;"~.nl1~..I h.. "A'_¡nrvT"~ n.__'__
Exhibit J, Page 1 of 1
S.P 1017-12 (T.H. 212)
Agreement Number 86825
EXHIBIT L
CITY OF CHANHASSEN
RESOLUTION
IT IS RESOLVED that the City of Chanhassen is authorized to enter into the Master Utility Agreement (MUA),
MnlDOT Agreement No. 86825, applicable to the T.R. 212 Project, with the State of Minnesota, Department of
Transportation for the following purposes:
To provide for cooperation with the Contractor in coordinating all utility relocation issues for the T.H. 212 Project.
IT IS FURTHER RESOLVED that the
and the
(Title)
are certified to execute the Agreement and any amendments to the
(Title)
Agreement.
CERTIFICA TION
I certify that the above Resolution is an accurate copy of the Resolution adopted by the Council of the City of
Chanhassen at an authorized meeting held on the day of , 2004, as shown by
the minutes of the meeting in my possession.
Subscribed and sworn to before me this
,2004
day of
(Signature)
Notary Public.
My Commission Expires
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(Type or Print N'!ffip.)
(Title)
Exhibit L, Page 1 of 1
S,P 1017-12 (T.H, 212)
Agreement Number 86825
EXHIBIT M
CITY OF CHANHASSEN
RESOLUTION
IT IS RESOLVED that the City of Chanhassen enter into MnlDOT Agreement No. 86825 with the
State of Minnesota, Department of Transportation for the following purposes:
To provide for payment by the to the State of Minnesota, Department of Transportation for the
Betterment requested by the City which consists of , along and adjacent to Trunk Highway
No. 212 from to
IT IS FURTHER RESOLVED that the City agrees to deposit the [total negotiated lump sum cost] [the total
estimated costs] of said Betterment work with MnlDOT within thirty days of this Resolution, [and, if the costs are
estimated costs, to pay to MnlDOT the total actual costs that exceed the estimated], and that
and are authorized to
(TitJe) (TitJe)
execute the Agreement and any amendments to the Agreement.
CERTIFICA TION
I certify that the above Resolution is an accurate copy of the Resolution adopted by the Council of the City of
Chanhassen at an authorized meeting held on the day of , 2004, as shown by
the minutes of the meeting in my possession.
Subscribed and sworn to before me this
,2004
day of
(Signature)
Notary Public
My Commission Expires
,
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(Type or Print Name)
(Title)
Exhibit M, Page 1 of 1
S.P 1017-12 (T.H. 212)
Agreement Number 86825
EXHIBIT N
DB CONTRACT SECTION 19
19. PARTNERING, CLAIMS FOR ADJUSTMENT AND DISPUTES
19.1 Partnering
Mn/DOT intends to encourage the use of an extensive partnering program among Mn/DOT, Contractor, its
Subcontractors, FHW A and other stakeholders, where appropriate. The partnering relationship will be structured to
draw on the strengths of each organization to identify and achieve reciprocal goals. The objectives include effective
and efficient Project performance and completion on schedule, within budget and in accordance with the Contract
Documents.
Mn/DOT anticipates a full-time partnering effort involving the executive management, Project management, Project
staff and others. Participation is encouraged. Any cost associated with effectuating partnering will be agreed to by
both Contractor and MnlDOT and will be shared equally with no change in the Contract Price. Contractor shall pay
all costs and submit paid invoices to Mn/DOT for 50 percent reimbursement.
Partnering between MnlDOT and Contractor has proven to improve the probability of meeting each party's project
goals. Prior to the initiation of the formal dispute resolution process contained in this Section 19, the parties shall
attempt to resolve the dispute through partnering between appropriate representatives of Mn/DOT and Contractor
(including, where appropriate, any Subcontractor) at the following levels:
(1) Project Task Force Teams;
(2) Project Task Force Co-Leads;
(3) Project Discipline Managers;
(4) Project Management Team;
(5) Executive Management Team.
At each level, representatives of the parties shall meet and continue to explore resolution until either party
determines, in good faith, that effective resolution is not possible at the current level, and notifies the other party that
the partnering process is elevated to the next level. If either or both parties make such a determination at any point
during partnering at the Executive Management Team level, then the dispute resolution provisi.ons contained in this
Section 19 shall apply.
It is the intent of the parties that the dispute resolution provisions contained in this Section 19 shall apply only in the
event that the above-described Mn/DOT -Contractor issue resolution efforts through partnering are not successful.
The dispute resolution provisions set forth in Section 19.2 shall apply to all Disputes arising out of the Work that are
not resolved by the parties through the partnering process, except as expressly provided to the contrary in the
Contract Documents.
19.2 Dispute Resolution; General Provisions
19.2.1 Mandatory Nature of Process
All Disputes between Contractor and Mn/DOT (or, as provided by Section 19.6.3, between Contractor's
Subcontractors and Mn/DOT) that have not been resolved by the parties through the partnering process shall be
resolved as provided by this Section.
19.2.2
19.2.2.1
Disputes; Disputes Governed by this Section; Priorities; Disputes Involving Utility Owners
Disputes
A "Dispute" is any written request for relief in any form arising out of or relating to the Contract
Documents or the Project, including all contract claims, statutory claims, equitable claims, claims
for extension of time, disagreements resulting from a change, a delay, a change order, any other
written orders, or oral orders from Mn/DOT, including any direction, instruction, interpretation, or
determination by Mn/DOT; provided, however, that this Section shall not apply to, and the
Dispute Review Board ("DRB") shall not have the authority to consider, claims that are not
actionable against Mn/DOT by Contractor on its own behalf or on behalf of any of its
Subcontractors in accordance with Section 19.6.3, claims arising in tort; claims relating to the
scope or applicability of indemnities provided under the Contract Documents; claims relating to
Exhibit N, Page 10f9
19.2.2.2
19.2.2.3
19.2.2.4
19.2.3
19.2.4
19.2.5
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
matters within the sole discretion of MnlDOT (except the scope of such claims will be limited to a
determination of whether MnlDOT's decision was arbitrary or capricious); claims for injunctive
relief; claims against insurance companies, or claims which are within the scope of
Section 19.2.2.4. When a Dispute occurs, Contractor shall pursue resolution through the process
set forth in this Section 19.
Condition Precedent to Judicial Review
Participation in and completion of this dispute resolution process is a condition precedent to an
action for judicial review in accordance with Minnesota law.
Disputes Brought by Contractor on Behalf of Subcontractors
Hereafter, all references to Disputes brought by Contractor refer also to Disputes brought by
Contractor on behalf of any of its Subcontractors, provided that the additional requirements of
Section 19.6.3 are complied with.
Disputes Involving Utility Owners
If a dispute arises relating to a MU A or a Work Order or the Utility Work thereunder, and the
Utility Owner is a necessary or appropriate party to such dispute, then such dispute shall be
resolved in the manner set forth in the applicable MUA, and Contractor shall participate in such
dispute resolution process as appropriate to resolve such dispute.
Overview of Process
The dispute resolution process shall involve the following steps, each of which must be taken
before the next is available; provided, however, that MnlDOT may submit claims to the DRB at
any time and that the parties may, by mutual agreement, submit their dispute to mediation or other
alternate dispute resolution process at any time:
1. if the parties are not able to resolve a Dispute through the partnering process,
Contractor may file with the DRB a Claim package;
2. MnlDOT will file its response to Contractor's Claim package with the DRB.
The DRB will conduct hearings in accordance with Minnesota law, and make
findings and determinations, upon which the DRB will issue an initial decision;
3. either party may file with MnlDOT exceptions to the initial decision of the DRB
within 30 Days of service of the initial decision of the DRB;
4. if neither party files an exception to the initial decision of the DRB, the decision
of the DRB becomes the final decision of MnlDOT;
5. failure to file the exceptions described above shall result in a waiver by
Contractor of the right to judicial review of the final order of MnlDOT;
6. any party who seeks to reverse or modify the initial decision of the DRB may
appeal the decision by filing an action for judicial review in accordance with
Minnesota law.
Continuation of Work
At all times during this Dispute resolution process or any subsequent administrative or court
proceeding, and at all times during the pendency of any Dispute with any other project contractor,
Contractor and all Subcontractors shall proceed with the Project Work diligently, without delay, in
accordance with all provisions of the Contract Documents.
Records Related to Dispute
Throughout the course of any work that is the subject of any Dispute, Contractor shall keep
complete records of the extra costs and time incurred related to the Dispute. Contractor shall
permit MnlDOT access to these and all other records needed for evaluating the disputed issue(s) as
determined by MnlDOT. These records shall be retained for a period of not less than seven years
from the date of resolution of the Dispute.
Exhibit N, Page 2 0£9
19.3
19.3.1
19.3.2
19.3.3
S.P. 1017-12 (T.R. 212)
Agreement Number 86825
Procedure and Schedule for Dispute Resolution
Time Periods
Disputes shall be considered as quickly as possible, taking into consideration the particular
circumstances and the time required to prepare detailed documentation.
Written Protest and Submittal to DRB
If Contractor disagrees with anything required in any written order from Mn/DOT, including any
direction, instruction, modification, interpretation, rejection or modification of a proposed Change
Order, or determination by Mn/DOT, and the parties have not been able to resolve the
disagreement through the partnering efforts set forth in Section 19.1, Contractor shall comply with
the following procedures:
Within two weeks (or as mutually agreed by Mn/DOT and Contractor) after the date on which
Contractor and Mn/DOT first become aware that the dispute, decision, action or order to which
Contractor objects, cannot be resolved through the partnering efforts of the parties, Contractor
shall deliver to the DRB a written Claim package containing the information required in
Section 13.3.2.1.2, which states "The Potential Change Order (PCO) Notice shall: (a) state in
detail the facts underlying the potential Change Order, the reasons why Contractor believes
additional compensation or time will or may be due and the date of occurrence; (b) state in detail
the basis that the work is not required by the Contract, if applicable; (c) identify particular
elements of Contract performance for which additional compensation may be sought under this
Section 13; (d) identify any potential Critical Path impacts; and (e) provide an estimate ofthe time
within which a response to the notice is required to minimize cost, delay, or disruption of
performance." Contractor's Claim package shall be accompanied by a written statement setiing
forth in detail the nature of, and factual and legal basis for, the Dispute and all remedies sought,
together with all documents that establish each element of the claim. Contractor simultaneously
shall provide Mn/DOT with a copy of the statement.
Contractor also shall submit a sworn certification in a form acceptable to Mn/DOT, executed by an
authorized representative with authority to bind Contractor and with direct knowledge of the
Dispute, certifying that (a) the claim is made in good faith and in accordance with the terms of the
Contract Documents; (b) the amount claimed accurately reflects the appropriate adjustments in the
Contract Price and time, and includes all delay claims and direct and indirect costs sought by
Contractor; (c) the supporting cost and pricing data are accurate, current and complete; (d) the
factual basis for the claim is not falsely represented; and (e) except as expressly noted and justified
by citation to legal authority, the amount claimed includes no attorneys', accountants' and expert
witness fees and costs, interest or other generally non-compensable costs.
In the event any such Claim or protest package, supporting statement and the required certification
is not filed within the time period set forth above, Contractor shall be deemed to have waived the
right to collect any and all costs incurred prior to the date of delivery of the Claim or protest, and
shall be deemed to have waived the right to seek an extension of the Completion Deadlines with
respect to any delay in the Critical Path which occurred prior to the date of the protest.
Contractor's failure shall also constitute a waiver of the right to bring the Claim or protest before
the DRB. This waiver shall occur whether or not there is any showing of prejudice to Mn/DOT
resulting from the delay in filing the protest.
MnlDOT Response
Within 30 Days of receipt of Contractor's Claim package, Mn/DOT shall deliver to the DRB and
Contractor its response to Contractor's Claim package, setting forth the position of Mn/DOT and
any counterclaims MnlDOT has relating to the Dispute. The response shall include a detailed
statement setting forth each factual and legal defense to the claims, together with all documents
that establish each defense. Any counterclaim shall set forth its nature, its factual and legal bases
and all remedies sought, together with all documents that establish each counterclaim. Within
Exhibit N, Page 3 of 9
19.3.4
19.4
19.4.1
19.4.2
19.4.3
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
21 Days after receipt of a counterclaim, Contractor shal1 submit to the DRB and MnlDOT a
detailed statement setting forth each factual and legal defense to the counterclaim.
Mn/DOT Disputes
MnlDOT shall have the right to bring a Dispute before the DRB at any time, without the necessity
of providing a written protest or claim, or fol1owing the procedures described above. In the event
MnlDOT brings a Dispute to the DRB, the procedures set forth in Section 19.6 relating to
Contractor Disputes shall apply; provided, however, MnlDOT shall not be required to submit the
certification referred to in Section 19.6.2.2, and Contractor shall be required to submit such
certification with respect to any counterclaims asserted by Contractor.
Dispute Review Board (DRB)
The DRB shall consist of three members. One member will be selected by MnlDOT and approved
by Contractor. One member will be selected by Contractor and Approved by Mn/DOT. A third
member will be selected by the first two members and approved by both MnlDOT and Contractor.
The third member will act as chairperson for al1 DRB activities.
Experience of Members
It is desirable that all three DRB members be expel-ienced with highway design and construction
and environmental compliance, as well as with resolution of disputes involving interpretation of
design-build contracts. The goal in selecting the third member is to complement the dispute
resolution experience of the first two and to provide leadership for the DRB' s activities. The third
member shall be a lawyer or retired judge, and shall act as chairperson for all DRB activities.
A voidance of Appearance of Conflict
It is imperative that DRB members show no partiality to either Contractor or MnlDOT, or have
any conflict of interest.
(a) No member shall be an Affiliate or otherwise have a financial interest in the
Contract or in the outcome of any Dispute decided hereunder, except for the
fight to receive payment for serving on the DRB.
(b) No member shall have ever been previously employed (or have his/her employer
employed) by MnlDOT, Contractor or any Affiliate, within two years prior to
the Proposal Due Date, except for fee-based consulting services on other
projects which are disclosed to all parties, or have had financial ties to any party
or Affiliate of any party to the Contract.
(c) No member shall have had substantial prior involvement in the Project or
relationship with any party or Affiliate of a nature which would be grounds for
disqualification of a judge, or which could otherwise compromise his or her
ability to impartial1y resolve Disputes.
(d) No member shall accept employment with MnlDOT, Contractor or any Affiliate
during the term hereof and for so long thereafter as any obligations remain
outstanding under the Contract Documents, except as a member of other
disputes boards.
(e) No member shall discuss employment with Contractor, any Affiliate, MnlDOT
or any consultants working on the Project during the term hereof and for so long
thereafter as any obligations remain outstanding under the Contract Documents.
Submission of Disclosure Statements
Before their appointments are final, the first two prospective members shall submit complete
disclosure statements for the approval of both Mn/DOT and Contractor. Each statement shall
include a resume of experience, together with a declaration describing all past, present and
anticipated or planned future relationships to the Project and with all parties involved in the
Contract, including disclosure of past or current professional or close personal relationships with
Contractor, any Affiliate, MnlDOT or their consultants working on the Project, or with any keyi
Exhibit N, Page 4 of 9
19.4.4
19.4.5
19.4.6
19.5
19.5.1
19.5.2
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
member of any such Person. The third DRB member shall supply such a statement to the first two
DRB members and to Mn/DOT and Contractor before his or her appointment is final.
Selection Process
Each party shall select its DRB member within six weeks after award of the Contract and provide
information regarding the selected individual to the other party. Immediately upon approval of the
first two members, the two members shall begin selection of the third member. The first two
members shall ensure that the third member meets all of the criteria listed above. The third
member shall be selected within four weeks after the first two members are notified to proceed
with the selection. In the event of an impasse in selection of the third member, that member shall
be selected by mutual agreement of Mn/DOT and Contractor. In so doing, they may, but are not
required to, consider the nominees offered by the first two members. If Mn/DOT and Contractor
cannot agree in the selection of the third member, then each party may submit a list of up to five
candidates to a court of competent jurisdiction for judicial resolution of the selection of the third
member.
Execution of Agreements
Promptly upon approval of the DRB members, Mn/DOT, Contractor and the individual DRB
members shall enter into three-party agreements in the form of Exhibit I hereto which set forth the
terms and conditions which apply to the services to be provided by the members. Mn/DOT,
Contractor, and all three members of the DRB shall execute the DRB Agreement within four
weeks after the selection of the third member.
Reconstitution of the Dispute Review Board
Mn/DOT and Contractor shall each have the right, one time only, to require appointments of á
new disputes review board to resolve future Disputes, which right may be exercised at any time by
delivery of notice to such effect to the other party and to the DRB. In such event, a new DRB
Agreement, in the same form as Exhibit I hereto, shall be executed establishing a new board, and
except as otherwise mutually agreed by Mn/DOT and Contractor, the work to be performed by the
DRB shall be limited to Disputes submitted to the DRB before delivery of ¡he notice requiring
appointment of a new board. Each party shall have the right to re-designate its appointed Dispute
Review Board member to the new board.
Operation
The DRB shall formulate its own rules of operation (which shall include the conduct of hearings
in accordance with Minnesota law) in accordance with the DRB Agreement.
Progress Reports
In order to keep abreast of design and construction development and progress, the members will
be provided regular written progress reports and other relevant data from Mn/DOT. Contractor
may provide supplemental progress reports if it chooses, after consultation with Mn/DOT. Such
supplemental progress report(s) shall be limited to material pertaining to Disputes that have
already been presented to the DRB. Contractor shall not submit supplemental progress reports
pertaining to issues that have not been previously presented to the DRB. Contractor shall provide a
copy of any supplemental progress report to Mn/DOT.
Regular Meetings
The DRB shall visit the Project and meet with representatives of Mn/DOT and Contractor at
regular intervals and at times of critical events. The frequency of these visits shall be as agreed
among Mn/DOT, Contractor and the DRB, depending on the progress of the Work. The regular
meetings shall be held at the Site. Each meeting shall consist of an informal round table discussion
followed by a field inspection of the Project. The round table discussion shall be attended by
selected personnel from Mn/DOT and Contractor. The agenda shall generally include the
following:
Exhibit N, Page 5 of9
19.5.3
19.5.4
19.6
19.6.1
19.6.2
19.6.2.1
19.6.2.2
19.6.2.3
19.6.2.4
S.P. 1017-12 (T.R. 212)
Agreement Number 86825
(a) Meeting convened by the chairman of the DRB.
(b) Opening remarks by Mn/DOT.
(c) A description by Contractor of Work accomplished since the last meeting,
current status of the current Actual Schedule, schedule for future Work,
potential Disputes and proposed solutions for any problems.
(d) Discussion by Mn/DOT of the Work schedule as Mn/DOT views it, potential
Disputes, and status of past Disputes.
(e) Set tentative date for next meeting.
If it is considered necessary by the parties, Mn/DOT will prepare minutes of regular meetings and
circulate them for comments, revisions, and/or approval of all concerned. The field inspection
shall cover all active segments of the work. The DRB shall be accompanied by representatives of
both Mn/DOT and Contractor.
No Ex Parte Communications
The parties are expressly prohibited from seeking advice from, consulting with, or discussing any
aspect of an existing or potential Dispute with, any member of the DRB, unless duly authorized
representatives of both parties agree otherwise, in writing.
Compensation
Each party shall be responsible for payment of the DRB member selected by it and shall enter into
a separate agreement for payment with its selected member. Payment for the services and
expenses of the third DRB member and the services of a certified court reporter shall be shared
equally by Mn/DOT and Contractor.
Procedures Before Dispute Review Board
Impartiality of Dispute Review Board
The DRB shall fairly and impartially consider Disputes referred to it, and shall provide an initial
decision to Contractor and Mn/DOT.
DRB Procedure for Dispute Resolution
Hearing Date
Within 10 Days after the date of receipt of Mn/DOT's answer or Contractor's response to
Mn/DOT's counterclaim, whichever occurs later, the DRB shall set a date for a hearing on the
Dispute.
Discovery
Once a notice of appeal is filed with the DRB, discovery shall be permitted to the full extent
provided for judicial cases under Minnesota law; provided that the parties may agree to shorten the
discovery period for individual disputes.
Hearing Chairperson
The third member of the DRB will act as chairperson of the hearing, or he or she may appoint one
of the other members to be chairman. Normally each member keeps their own notes, and a formal
transcript is not prepared. In special cases, when requested by either party, the DRB may allow
preparation of a transcript by a court reporter. Audio or video recordings will not be permitted.
Process at Hearing
MnJDOT and Contractor shall have representatives at all hearings. Contractor will first discuss the
dispute, followed by MnJDOT. Each party will then be allowed successive rebuttals until all
aspects are fully covered. The DRB members may ask questions, request clarification, or ask for
additional data. In large or complex cases, additional hearings may be necessary in order to
consider and fully understand all the evidence presented by both parties. Both Mn/DOT and
Contractor shall be provided full and adequate opportunity to present all of their evidence,
documentation and testimony regarding all issues before the DRB. During the hearings, no DRB
member shall express any opinion concerning the merit of any facet of the case.
Exhibit N, Page 6 of 9
19.6.2.5
19.6.2.6
19.6.2.7
19.6.2.8
19.6.2.9
19.6.2.10
19.6.3
S.P. 1017-12 (T.H, 212)
Agreement Number 86825
Conclusion of Hearing
After the hearing on a Dispute is concluded, the DRB shall meet to formulate findings and
conclusions upon all material issues of fact, law, or discretion presented by the record regarding
resolution of the Dispute. All DRB deliberations shall be conducted in private and shall be
confidential. The DRB shall make a concerted effort to reach a unanimous decision. The DRB
shall base its findings and conclusions on the terms of the Contract Documents, established
principles of law, statutes and regulations deemed by the DRB to be applicable, the facts and
circumstances of the Dispute as found by the DRB and the information provided by the parties.
DRB's Initial Decision
Within 30 Days after the hearing (or such other time as is mutually agreed among the parties but
not to exceed 60 Days), the DRB shall prepare an initial decision which shall be served on
Contractor and MnlDOT. The initial decision shall include a statement of findings and conclusions
upon all the material issues of fact, law, or discretion presented by the record, and the appropriate
order, sanction, relief or demand of the DRB. The DRB's statement of findings, conclusions and
recommendations shall be made in compliance with Minnesota law.
Acceptance or Rejection ofDRB's Initial Decision
Within two weeks ofreceiving the DRB's initial decision, or such other time specified by the
DRB, both MnlDOT and Contractor shall respond to the other and to the DRB in writing,
signifying either acceptance or rejection of the DRB' s initial decision. The failure of either party
to respond within the specified period shall be deemed an acceptance of the DRB' s initial
decision. If with the aid of the initial decision, MnlDOT and Contractor are able to resolve their
Dispute, Mn/DOT will promptly process any required Contract changes.
Judicial Resolution
Should the Dispute remain unresolved, during the six-month period following issuance of the
DRB initial decision, either party may submit the Dispute to judicial resolution (which shall be a
de novo review) or may resort to other methods of settlement. If the Dispute has not been
submitted to judicial resolution within such six-month period, and there has been no agreement
between the parties for resolution of the Dispute, then the parties shall be deemed to have
conclusively agreed to accept the initial decision made by the DRB.
Limitations on Admissibility of DRB's Initial Decision
Although both MnlDOT and Contractor should place great weight on the DRB's initial decision,
no such decision will be admissible as evidence in any other dispute resolution proceeding, except
in an appeal under Section 19.6.2.8 or in cases involving the failure of a party to implement a
decision which has become binding under Section 19.6.2.7 or 19.6.2.8. Findings of fact by the
DRB will not be collateral estoppel in any other proceeding involving the same issue, but final
DRB decisions which are binding pursuant to Section 19.6.2.7 or 19.6.2.8 hereunder will be res
judicata.
Emergency or Provisional Remedy
No party shall be precluded from initiating a proceeding in a court of competent jurisdiction for
the purpose of obtaining any emergency or provisional remedy which may be necessary, and
which is not otherwise available under this Section 19, to protect its rights, including temporary
and preliminary injunctive relief, attachment, claim and delivery, receivership and any
extraordinary writ.
Dispute Resolution: Additional Requirements for Subcontractor Demands
For purposes of this Section 19, a "Subcontractor Demand" shall include any claim by a
Subcontractor (including also any pass-through claims by a lower tier Subcontractor) against
Contractor that is actionable by Contractor against MnlDOT and arises from work, services or
materials provided or to be provided under the Contract Documents. If Contractor determines to
Exhibit N, Page 7 of 9
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
pursue a Claim against MnlDOT that includes a Subcontractor Demand, the following additional
conditions shall apply:
(a) Contractor shall identify clearly in all submissions pursuant to this Section 19,
that portion of the claim that involves a Subcontractor.
(b) Contractor shall include, as part of its submission pursuant to Section 19, a
certification in a form acceptable to MnlDOT by the Subcontractor's officer,
partner or authorized representative with authority to bind the Subcontractor and
with direct knowledge of the facts underlying the Subcontractor's claim.
Contractor also shall submit a Contractor's certification that (i) Contractor has
investigated the basis of the Subcontractor's claims and has determined that all
such claims are justified as to entitlement and amount of money and time
requested, and has reviewed and verified the adequacy of all back-up
documentation; (ii) the Subcontractor's claim has been prepared and submitted
in accordance with the terms of the Contract Documents and the applicable
Subcontract(s) and contains all information required by the Contract Documents
and applicable Subcontract; and (iii) Contractor has no reason to believe and
does not believe that the factual basis for the Subcontractor's claim is falsely
represented. Any claim under this Section 19 involving Subcontractor Work
shall be considered incomplete if it is not accompanied by such analysis and
certification.
(c) At any DRB hearing on a Dispute that includes one or more Subcontractor
claims, Contractor shall require that each Subcontractor that is involved in the
Dispute have present an authorized representative with actual knowledge of the
facts underlying the Subcontractor's claim to assist in presenting the
Subcontractor's claim and to answer questions raised by the DRB members or
MnlDOT's representatives.
(d) Failure of Contractor to assert a Subcontractor's claim on behalf of any
Subcontractor or Supplier at the time of submission of Contractor's Claims, as
provided hereunder, shall constitute a release of MnlDOT by Contractor on
account of such Subcontractor's claim.
(e) Contractor shall require in all Subcontracts that all Subcontractors and Suppliers
of any tier: (i) agree to submit Subcontractor's claims to Contractor in a proper
form and in sufficient time to allow processing by Contractor in accordance with
this Section 19; (ii) agree to be bound by the terms of this Section 19 to the
extent applicable to Subcontractor's claims; (iii) agree that, to the extent a
Subcontractor's claim is invol ved, completion of all steps required under this
Section 19 shall be a condition precedent to pursuit by the Subcontractor of any
other remedies permitted by law, including institution of a lawsuit against
Contractor; (iv) agree that any Subcontractor's claim brought against a bonding
company, that also is actionable against MnlDOT through Contractor, shall be
stayed until completion of all steps required under this Section 19; and (v) agree
that the existence of a Dispute resolution process for Disputes involving
Subcontractor's Demands shall not be deemed to create any claim, right or cause
of action by any Subcontractor or Supplier against MnlDOT.
(f) Notwithstanding the foregoing, this Section 19 shall not apply to, and the DRB
shall not have the authority to consider: (i) any Subcontractor claim between the
Subcontractor(s) and Contractor that is not actionable by Contractor against
MnlDOT; (ii) any Subcontractor claim based on remedies expressly created by
statute; (iii) any Subcontractor claim that is covered by insurance; or (iv) any
Subcontractor claim that is actionable only against a bonding company.
Exhibit N, Page 80f9
~"\
19.6.4
S.P. 1017-12 (T.H. 212)
Agreement Number 86825
Participation in Other Proceedings
Contractor agrees that at MnlDOT's request, Contractor will allow itself to be joined as a
participant in any arbitration or other proceeding that involves MnlDOT and any other participant
in the design or construction of any part of the Project. This provision is for the benefit of
MnlDOT and not for the benefit of any other party.
Exhibit N, Page 9 of 9