E-4. Preserve at Rice Lake Noise Wall AgreementCITY OF
7700 Market Boulevard
PC Box 147
Chanhassen, MN 55317
Administration
Phone: 952.227.1100
Fax: 952.227.1110
Building Inspections
Phone: 952.227.1180
Fax: 952.227.1190
Engineering
Phone: 952.227.1160
Fax: 952.227.1170
Finance
Phone: 952.227.1140
Fax: 952.227.1110
Park & Recreation
Phone: 952.227.1120
Fax: 952.227.1110
Recreation Center
2310 Coulter Boulevard
Phone: 952.227.1400
Fax: 952.227.1404
Planning &
Natural Resources
Phone: 952.227.1130
Fax: 952.227.1110
Public Works
7901 Park Place
Phone: 952.227.1300
Fax: 952.227.1310
Senior Center
Phone: 952.227.1125
Fax: 952.227.1110
Web Site
www.ci.chanhassen.mn.us
E�4
MEMORANDUM
TO: Paul Oehme, Director of Public Works /City Engineer
FROM: Alyson Fauske, Assistant City Engineer
DATE: August 25, 2014
SUBJ: Approve Cooperative Construction Agreement with Minnesota
Department of Transportation for the Noise Wall at The Preserve
at Rice Lake
PROPOSED MOTION
"The City Council is recommended to adopt the attached resolution approving
the Minnesota Department of Transportation (MnDOT) Cooperative
Construction Agreement, State Project No. 1017 -104, Trunk Highway (TH)
212, City Project No. 14 -05.
City Council approval requires a simple majority vote of the City Council
present.
The Preserve at Rice Lake development is located on the northeast corner of TH
212 and Highway 101. The final plat was approved on July 28, 2014. The
development plan includes the construction of a noise wall on the north side of
TH 212 within MnDOT right of way. As such, MnDOT requires a cooperative
agreement to allow for the construction of the wall. The agreement also identifies
the parties responsible for the long -term maintenance of the wall.
The agreement is still in draft form; MnDOT will finalize and execute the
agreement once their staff has completed their review of the noise wall plans.
Staff does not anticipate any major changes to the final agreement. The city
attorney finds the agreement acceptable.
Attachments: MnDOT Cooperative Construction Agreement
Resolution
c: John Knoblauch, J &S Ventures 1
g:\eng\projects \p -s \preserve at rice lake \08 -25 -2014 approve noise wall agmt.docx
Chanhassen is a Community for Life - Providing for Today and Planning for Tomorrow
Mn/DOT Contract No: 06029
STATE OF MINNESOTA
DEPARTMENT OF TRANSPORTATION
And
CITY OF CHANHASSEN
COOPERATIVE CONSTRUCTION
AGREEMENT
State Project Number (S.P.): 1017 -104
Trunk Highway Number (T.H.): 212
City Project Number: 14 -05
This Agreement is between the State of Minnesota, acting through its Commissioner of Transportation ( "State ") and
City of Chanhassen acting through its City Council ( "City ").
Recitals
1. The City will perform noise wall construction and other associated construction upon, along and adjacent to
Trunk Highway No. 212 from 0.4 miles east of County Road 101 to 0.7 miles east of County Road 101
according to City- prepared plans, specifications and special provisions designated by the City as 14 -05 and by
the State as State Project No. 1017 -104 (T.H. 212)( "Project "); and
2. The City requests the State allow the construction of a noise wall on State right of way on the north side of
Trunk Highway No. 212 for the development The Preserve at Rice Lake and the State is willing to allow said
construction on State right of way; and
3. Minnesota Statutes § 161.20, subdivision 2 authorizes the Commissioner of Transportation to make
arrangements with and cooperate with any governmental authority for the purposes of constructing,
maintaining and improving the trunk highway system.
Agreement
1. Term of Agreement; Survival of Terms; Plans;
1.1. Effective date. This Agreement will be effective on the date the State obtains all signatures required by
Minnesota Statutes § 16C.05, subdivision 2.
1.2. Expiration date. This Agreement will expire when all obligations have been satisfactorily fulfilled.
13. Survival of terms. All clauses which impose obligations continuing in their nature and which must survive
in order to give effect to their meaning will survive the expiration or termination of this Agreement,
including, without limitation, the following clauses: 2.4. State Ownership of Improvements; 5. Maintenance
by the City; 8. Liability; Worker Compensation Claims; Insurance; 10, State Audits; 11. Government Data
Practices; 12. Governing Law; Jurisdiction; Venue; and 14. Force Majeure.
1.4. Plans, Specifications, Special Provisions. State - approved City plans, specifications and special provisions
designated by the City as 14 -05 and by the State as State Project No. 1017 -104 (T.H. 212) are on file in the
office of the City's Engineer and incorporated into this Agreement by reference. ( "Project Plans ")
2. Right -of -Way Use
2.1. Limited Right to Occupy. The State grants to the City (and its contractors and consultants) the right to
occupy trunk highway right -of -way as necessary to perform the work described in the Project Plans. This
right is limited to the purpose of constructing the project, and administering such construction, and may be
revoked by the State at any time, with or without cause. Cause for revoking this right of occupancy
includes, but is not limited to, breaching the terms of this or any other agreement (relevant to this project)
with the State, failing to provide adequate traffic control or other safety measures, failing to perform the
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Mn/DOT Contract No: 06029
construction properly and in a timely manner, and failing to observe applicable environmental laws or terms
of applicable permits. The State will have no liability to the City (or its contractors or consultants) for
revoking this right of occupancy.
2.2. State Access, Suspension of Work, Remedial Measures. The State's District Engineer or assigned
representative retains the right to enter and inspect the trunk highway right -of -way (including the
construction being performed on such right -of -way) at any time and without notice to the City or its
contractor. If the State determines (in its sole discretion) that the construction is not being performed in a
proper or timely manner, or that environmental laws (or the terms of permits) are not being complied with,
or that traffic control or other necessary safety measures are not being properly implemented, then the State
may direct the City (and its contractor) to take such remedial measures as the State deems necessary. The
State may require the City (and its contractors and consultants) to suspend their operations until suitable
remedial action plans are approved and implemented. The State will have no liability to the City (or its
contractors or consultants) for exercising its rights under this provision.
2.3. Traffic Control, Worker Safety. While the City (and its contractors and consultants) are occupying the State
right -of -way, they must comply with the approved traffic control plan, and with applicable provisions of the
Work Zone Field Handbook (htttp: / /www. dot. state. inn. us /trafficengJworkzone /index.htm]). All City,
contractor, and consultant personnel occupying the State's right -of -way must be provided with required
reflective clothing and hats.
2.4. State Ownership oflmprovements. The State will retain ownership of its trunk highway right -of -way,
including any improvements made to such right -of -way under this Agreement, unless otherwise noted. The
warranties and guarantees made by the City's contractor with respect to such improvements (if any) will
flow to the State. The City will assist the State, as necessary, to enforce such warranties and guarantees, and
to obtain recovery from the City's consultants, and contractor (including its sureties) for non - performance of
contract work, for design errors and omissions, and for defects in materials and workmanship. Upon request
of the State, the City will undertake such actions as are reasonably necessary to transfer or assign contract
rights to the State and to permit subrogation by the State with respect to claims against the City's consultants
and contractors.
3. Contract Award and Construction
3.1. Direction, Supervision and Inspection of Construction
A. The contract construction will be under the direction of the City and under the supervision of a registered
professional engineer; however, the State participation construction covered under this Agreement will
be open to inspection by the State District Engineer's authorized representatives. The City will give the
District Engineer at Metro five days notice of its intention to start the contract construction.
B. Responsibility for the control of materials for the contract construction will be on the City and its
contractor and will be carried out according to Specifications No. 1601 through and including No. 1609
in the State's current "Standard Specifications for Construction".
3.2. Completion of Construction. The City will cause the contract construction to be started and completed
according to the time schedule in the construction contract special provisions. The completion date for the
contract construction may be extended, by an exchange of letters between the appropriate City official and
the State District Engineer's authorized representative, for unavoidable delays encountered in the
performance of the contract construction.
3.3. Compliance with Laws, Ordinances, Regulations. The City will comply and cause its contractor to comply
with all Federal, State and Local laws, and all applicable ordinances and regulations. With respect only to
that portion of work performed on the State's trunk highway right -of -way, the City will not require the
contractor to follow local ordinances or to obtain local permits.
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Mn/DOT Contract No: 06029
3.4. Compliance with Paint/Statin Regulations. The City shall be responsible to coordinate with MnDOT
Bridge Office or Landscape Architecture Unit for the paint/stain color of the wood planking of the noise
barrier wall.
4. Right -of -Way; Easements; Permits
4.1. The City will, without cost or expense to the State, obtain all rights -of -way, easements, construction permits
and any other permits and sanctions that may be required in connection with the local and trunk highway
portions of the contract construction. Before payment by the State, the City will furnish the State with
certified copies of the documents for rights -of -way and easements, construction permits and other permits
and sanctions required for State participation construction covered under this Agreement.
4.2. The City will convey to the State by quit claim deed, all newly acquired rights needed for the continuing
operation and maintenance of the Trunk Highway, if any, upon completion of the Project, at no cost or
expense to the State.
4.3. The City will comply with Minnesota Statutes § 216D.04, subdivision 1(a), for identification, notification,
design meetings and depiction of utilities affected by the contract construction.
5. Maintenance by the City
Upon completion of the project, the City will provide the following without cost or expense to the State:
5.1. Noise Wall. Maintenance of the non - highway side of The Preserve at Rice Lake noise wall construction.
Maintenance includes vegetation control, graffiti removal on the non - highway side and any other
maintenance activities necessary to perpetuate the walls in a safe, usable and aesthetically acceptable
condition.
6. Authorized Representatives
Each party's Authorized Representative is responsible for administering this Agreement and is authorized to give
and receive any notice or demand required or permitted by this Agreement.
6.1. The State's Authorized Representative will be:
Name/Title: Maryanne Kelly - Sonnek, Municipal Agreements Engineer (or successor)
Address: 395 John Ireland Boulevard, Mailstop 682, St. Paul, MN 55155
Telephone: (651) 366 -4634
E -Mail: maryanne.kellysonnek @state.mn.us
6.2. The City s Authorized Representative will be:
Name/Title: Paul Oehme, City Engineer (or successor)
Address: 7700 Market Boulevard, P.O. Box 147, Chanhassen, MN 55317
Telephone: (952) 227 -1169
E -Mail: poehme @ci.chanhassen.mn.us
7. Assignment; Amendments; Waiver; Contract Complete
7.1. Assignment Neither party may assignor transfer any rights or obligations under this Agreement without the
prior consent of the other party and a written assignment agreement, executed and approved by the same
parties who executed and approved this Agreement, or their successors in office.
7.2. Amendments. Any amendment to this Agreement must be in writing and will not be effective until it has
been executed and approved by the same parties who executed and approved the original Agreement, or
their successors in office.
7.3. Waiver. If a party fails to enforce any provision of this Agreement, that failure does not waive the provision
or the party's right to subsequently enforce it.
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Mn/DOT Contract No: 06029
7.4. Contract Complete. This Agreement contains all prior negotiations and agreements between the State and
the City. No other understanding regarding this Agreement, whether written or oral, may be used to bind
either party.
8. Liability; Worker Compensation Claims; Insurance
8.1. 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. Minnesota Statutes
§ 3.736 and other applicable law govern liability of the State. Minnesota Statutes Chapter 466 and other
applicable law govern liability of the City. Notwithstanding the foregoing, the City will indemnify, hold
harmless, and defend (to the extent permitted by the Minnesota Attorney General) the State against any
claims, causes of actions, damages, costs (including reasonable attorneys fees), and expenses arising in
connection with the project covered by this Agreement, regardless of whether such claims are asserted by
the City's contractor(s) or consultant(s) or by a third party because of an act or omission by the City or its
contractor(s) or consultant(s).
8.2. Each party is responsible for its own employees for any claims arising under the Workers Compensation
Act.
8.3. The City may require its contractor to carry insurance to cover claims for damages asserted against the
City's contractor.
9. Nondiscrimination
Provisions of Minnesota Statutes § 181.59 and of any applicable law relating to civil rights and discrimination are
considered part of this Agreement.
10. State Audits
Under Minnesota Statutes § 16C.05, subdivision 5, the City's books, records, documents, and accounting
procedures and practices relevant to this Agreement are subject to examination by the State and the State Auditor
or Legislative Auditor, as appropriate, for a minimum of six years from the end of this Agreement.
11. Government Data Practices
The City and State must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter
13, as it applies to all data provided under this Agreement, and as it applies to all data created, collected, received,
stored, used, maintained, or disseminated by the City under this Agreement. The civil remedies of Minnesota
Statutes § 13.08 apply to the release of the data referred to in this clause by either the City or the State.
12. Governing Law; Jurisdiction; Venue
Minnesota law governs the validity, interpretation and enforcement of this Agreement. Venue for all legal
proceedings arising out of this Agreement, or its breach, must be in the appropriate state or federal court with
competent jurisdiction in Ramsey County, Minnesota.
13. Termination; Suspension
13.1. By Mutual Agreement. This Agreement may be terminated by mutual agreement of the parties or by the
State for insufficient funding as described below.
13.2. Termination for Insufficient Funding. The State may immediately terminate this Agreement if it does not
obtain funding from the Minnesota Legislature, or other funding source; or if funding cannot be continued at
a level sufficient to allow for the payment of the services covered here. Termination must be by written or
fax notice to the City.
13.3. Suspension. In the event of a total or partial government shutdown, the State may suspend this Agreement
and all work, activities, performance and payments authorized through this Agreement. Any work
performed during a period of suspension will be considered unauthorized work and will be undertaken at the
risk of non - payment.
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Mn /DOT Contract No: 06029
14. Force Majeure
Neither party will be responsible to the other for a failure to perform under this Agreement (or a delay in
performance), if such failure or delay is due to a force majeure event. A force majeure event is an event beyond a
party's reasonable control, including but not limited to, unusually severe weather, fire, floods, other acts of God,
labor disputes, acts of war or terrorism, or public health emergencies.
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CITY OF CHANHASSEN
The undersigned certify that they have lawfully
executed this contract on behalf of the Governmental
Unit as required by applicable charter provisions,
resolutions or ordinances.
By:
Title:
Date:
By:
Title:
Date:
Mn/DOT Contract No: 06029
DEPARTMENT OF TRANSPORTATION
Recommended for Approval:
M
(District Engineer)
Date:
COMMISSIONER OF ADMINISTRATION
Lo
Date:
(With delegated authority)
INCLUDE COPY OF RESOLUTION APPROVING THE AGREEMENT AND AUTHORIZING ITS
EXECUTION.
CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
DATE: August 25, 2014 RESOLUTION NO: 2014 -XX
MOTION BY:
I t 'A
RESOLUTION APPROVING A COOPERATIVE
CONSTRUCTION AGREEMENT WITH THE
STATE OF MINNESOTA DEPARTMENT OF TRANSPORATION
WHEREAS, the City of Chanhassen has requested the State to allow construction of a
noise wall in the state right of way on the north side of Trunk Highway No. 212 for the
development of the Preserve at Rice Lake; and
WHEREAS, the State of Minnesota Department of Transportation has submitted to the
City a Cooperative Construction Agreement for the construction of the noise wall.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chanhassen, Minnesota that:
1. The City Council approves the Cooperative Construction Agreement.
2. The City Manager and the Mayor are hereby authorized to executed the Cooperative
Construction Agreement, subject to any non - substantive changes approved by the City
Manager, and any and all other supplementary documents necessary in the opinion of
the City Manager to carry out the Cooperative Construction Agreement.
Passed and adopted by the Chanhassen City Council this 25h day of August, 2014.
ATTEST:
Todd Gerhardt, City Manager Thomas A. Furlong, Mayor
YES NO ABSENT