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HomeMy WebLinkAbout#04 - TH36-Manning Ave Maintenance Agreement STAFF REPORT DATE: April 6, 2021 REGULAR AGENDA ITEM: Approve Maintenance Agreement with City of Stillwater for the Trunk Highway (TH) 36 and Manning Avenue (CSAH 15) Local Improvement SUBMITTED BY: Jack Griffin, City Engineer REVIEWED BY: Kristina Handt, City Administrator Sarah, Sonsalla, City Attorney Marty Powers, Public Works Director Chad Isakson, Assistance City Engineer ISSUE BEFORE COUNCIL: Should the City Council approve a Maintenance Agreement with the City of Stillwater for the Trunk Highway (TH) 36 and Manning Avenue (CSAH 15) Local Improvements? BACKGROUND: Washington County intends to construct a grade separated interchange at the intersection of Trunk Highway (TH) 36 and Manning Avenue (CSAH 15) to improve safety, capacity, and operation of the intersection. The project requires the construction of a retaining wall along the west side of Manning Avenue North. The retaining wall is technically located within Lake Elmo city limits; however, the remaining parts of the Manning Avenue North roadway resides within Stillwater city limits. Both Lake Elmo and Stillwater are entering into Cooperative Maintenance Agreements with Washington County for the Trunk Highway (TH) 36 and Manning Avenue (CSAH 15) Interchange Improvements, for the maintenance of the local improvements constructed within their respective Right-of Ways. PROPOSAL DETAILS/ANALYSIS: Because the retaining wall is along the portion of Manning Avenue North to be maintained by Stillwater, Stillwater has agreed to maintain the retaining wall. In exchange for Stillwater maintaining the retaining wall, Lake Elmo has agreed to remove snow from a portion of Manning Avenue that is within the Stillwater city limits. Staff has prepared the Maintenance Agreement attached to this agenda item to facilitate this agreement. RECOMMENDATION: Staff is recommending that the City Council approve a Resolution, approving a Maintenance Agreement with the City of Stillwater for the Trunk Highway (TH) 36 and Manning Avenue (CSAH 15) Local Improvements. The recommended motion for the action is as follows: “Move to approve Resolution No. 2021-038 Approving a Maintenance Agreement with City of Stillwater for the Trunk Highway (TH) 36 and Manning Avenue (CSAH 15) Local Improvements.” ATTACHMENTS: 1. Resolution Approving Maintenance Agreement with the City of Stillwater for the Trunk Highway (TH) 36 and Manning Avenue (CSAH 15) Local Improvements. 2. Maintenance Agreement. CITY OF LAKE ELMO WASHINGTON COUNTY STATE OF MINNESOTA RESOLUTION NO. 2021-038 A RESOLUTION APPROVING A MAINTENANCE AGREEMENT WITH CITY OF STILLWATER FOR THE TRUNK HIGHWAY (TH) 36 AND MANNING AVENUE (CSAH 15) LOCAL IMPROVEMENTS WHEREAS, Washington County, Lake Elmo, and Stillwater are constructing a roadway interchange at the intersection of Trunk Highway 36 and Manning Avenue (the “Project”); and WHEREAS, a retaining wall is being constructed along the west side of Manning Avenue North as part of the Project; and WHEREAS, the retaining wall is being constructed on a portion of Manning Avenue North within the city limits of Lake Elmo, outside of the Stillwater right-of-way; and WHEREAS, Stillwater has agreed to undertake the necessary maintenance responsibilities of this portion of retaining wall depicted in Exhibit A as retaining wall #3 (“Retaining Wall”) to perpetuate the wall in a safe, usable, and aesthetically acceptable condition; and WHEREAS, Lake Elmo grants Stillwater access to the Retaining Wall in order to perform the maintenance obligations under this Agreement; and WHEREAS, in exchange for Stillwater maintaining, repairing, and replacing the Retaining Wall, Lake Elmo has agreed to snow removal from a portion of Manning Avenue North that is within the Stillwater city limits; and NOW, THEREFORE, BE IT RESOLVED, that Maintenance Agreement between the City of Lake Elmo and City of Stillwater is hereby approved and the Mayor and City Administrator are hereby authorized execute the agreement on behalf of the City of Lake Elmo. ADOPTED BY THE LAKE ELMO CITY COUNCIL ON THE SIXTH DAY OF APRIL, 2021. CITY OF LAKE ELMO By: __________________________ Charles Cadenhead (Seal) Mayor ATTEST: ________________________________ Julie Johnson, City Clerk 1 MAINTENANCE AGREEMENT This Maintenance Agreement (this “Agreement’) is made and executed this _____ day of ___________, 2021, by and between the City of Lake Elmo, a Minnesota municipal corporation, 3880 Laverne Avenue North, Suite 100, Lake Elmo, MN 55042 (“Lake Elmo”) and the City of Stillwater, a Minnesota municipal corporation, 216 4th Street N., Stillwater, MN 55082 (“Stillwater”). Lake Elmo and Stillwater shall be collectively referred to herein as “the Parties.” RECITALS WHEREAS, Washington County, Lake Elmo, and Stillwater are constructing a roadway interchange at the intersection of Trunk Highway 36 and Manning Avenue (the “Project”); and WHEREAS, a retaining wall is being constructed along the west side of Manning Avenue North as part of the Project; and WHEREAS, the retaining wall is being constructed on a portion of Manning Avenue North within the city limits of Lake Elmo, outside of the Stillwater right-of-way; and WHEREAS, Stillwater has agreed to undertake the necessary maintenance responsibilities of this portion of retaining wall depicted in Exhibit A as retaining wall #3 (“Retaining Wall”) to perpetuate the wall in a safe, usable, and aesthetically acceptable condition; and WHEREAS, Lake Elmo grants Stillwater access to the Retaining Wall in order to perform the maintenance obligations under this Agreement; and WHEREAS, in exchange for Stillwater maintaining, repairing, and replacing the Retaining Wall, Lake Elmo has agreed to snow removal from a portion of Manning Avenue North that is within the Stillwater city limits; and NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, the parties do hereby agree as follows: AGREEMENT 1. Term. The term of this Agreement shall commence on the effective date of the latest signature hereto and annually renew under the same terms and conditions, unless terminated as provided herein. The term of this Agreement shall automatically renew for subsequent annual terms, unless either party provides written notice of termination to the other party in which case the Agreement shall end at the then current term. Notwithstanding the foregoing, this Agreement may be terminated as provided in Section 13 below. 2. Stillwater’s Responsibilities. Stillwater shall provide all required maintenance and repairs of Retaining Wall as circled in red on the map of the Project attached as Exhibit A. Stillwater shall maintain and repair the Retaining Wall as though it was located within the City of Stillwater and must provide the same level of regular maintenance that it provides on its retaining walls of similar condition. Maintenance and repair includes, but is not limited to, painting graffiti removal, panel replacement, and other maintenance activity necessary to perpetuate the aesthetic elements in a safe, usable, and aesthetically acceptable condition. Lake Elmo shall not be responsible for paying any costs related to the 2 maintenance performed by Stillwater as part of this Agreement, including any repairs. Should the Retaining Wall need to be replaced, Stillwater shall be responsible for the cost of its replacement. 3. Lake Elmo’s Responsibilities. In consideration for Stillwater being responsible for the maintenance, repairs, and replacement of the Retaining Wall, Lake Elmo shall plow and remove snow from the portion of Manning Avenue North that is shown in green on the attached Exhibit A. Lake Elmo shall also perform any necessary sanding or salting on this portion of Manning Avenue North. Lake Elmo’s snow removal activities must be performed with respect to this portion of Manning Avenue North at the same level as Lake Elmo performs them for its roads of similar condition and similar level of use. Stillwater shall not be responsible for paying any costs related to the snow removal performed by Lake Elmo as part of this Agreement. 4. Indemnification – Lake Elmo. Lake Elmo agrees that it will indemnify, defend, and hold harmless Stillwater against any and all liability, loss, damages, costs, and expenses which Lake Elmo may hereafter sustain, incur, or be required to pay by reason of any negligent act by Lake Elmo, its officials, employees, contractors, or agents during the performance of its duties under this Agreement. 5. Indemnification – Stillwater. Stillwater agrees that it will indemnify, defend, and hold harmless Lake Elmo against any and all liability, loss, damages, costs, and expenses which Stillwater may hereafter sustain, incur, or be required to pay by reason of any negligent act by Stillwater, its officials, employees, contractors, or agents during the performance of its duties under this Agreement. 6. Cooperative Activity. To the fullest extent permitted by law, actions by the Parties to this Agreement are intended to be and shall be construed as a “cooperative activity” and it is the intent of the Parties that they shall be deemed a “single governmental unit” for the purposes of liability, as set forth in Minnesota Statutes Section 471.59, subdivision 1a(b). The parties to this Agreement are not liable for the acts or omissions of another party to this Agreement except to the extent that they have agreed in writing to be responsible for the acts or omissions of the other parties as provided for in Minnesota Statutes Section 471.59, subdivision 1a. 7. Limitation of Liability. Each party’s liability shall be governed by the provisions of Minnesota Statutes, Chapter 466, and other applicable law. The parties agree that liability under this Agreement is controlled by Minnesota Statutes Section 471.59, subdivision 1a and that the total liability for the Parties shall not exceed the limits on governmental liability for a single unit of government as specified in Minnesota Statutes Section 466.04, subdivision 1(a). 8. Worker’s Compensation – Lake Elmo. It is hereby understood and agreed that any and all employees of Lake Elmo and all other persons employed by Lake Elmo in the performance of services provided under this Agreement shall not be considered employees of Stillwater and that any and all claims that may or might arise under the Workers’ Compensation Act of the State of Minnesota on behalf of said employees while so engaged and any and all claims made by any third parties as a consequence of any act or omission 3 on the part of said Lake Elmo employees while so engaged on any of the services to be rendered herein shall in no way be the obligation or responsibility of Stillwater. 9. Workers’ Compensation – Stillwater. It is hereby understood and agreed that any and all employees of Stillwater and all other persons employed by Stillwater in the performance of services provided under this Agreement shall not be considered employees of Lake Elmo and that any and all claims that may or might arise under the Workers’ Compensation Act of the State of Minnesota on behalf of said employees while so engaged and any and all claims made by any third parties as a consequence of any act or omission on the part of said Stillwater employees while so engaged on any of the services to be rendered herein shall in no way be the obligation or responsibility of Stillwater. 10. Assessment of Costs. No party shall assess or otherwise recover any portion of its costs associated with the services being performed by it pursuant to this Agreement through special assessment of the other party’s property. 11. Data Practices. All data collected, created, received, maintained, disseminated, or used for any purposes in the course of this Agreement is governed by the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13 (the “Act”) or any other applicable state statutes or state rules adopted to implement the Act, as well as state statutes and federal regulations on data privacy. 12. Entire Agreement. It is understood and agreed that the entire agreement of the Parties is contained herein, and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the Parties concerning the Retaining Wall or the removal of snow from the portion of Manning Avenue North described in this Agreement. Any alterations, amendments, deletions, and waivers of the provisions of this Agreement shall be valid only when reduced to writing and duly signed by each party. 13. Termination. Either party may terminate this Agreement for any reason by giving the other party 60 days written notice delivered to the other party to the addresses listed in Section 16 of this Agreement. 14. Governing Law. This Agreement will be governed and construed in accordance with the laws of the State of Minnesota. 15. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same Agreement. 16. Notice. Notices shall be communicated to the following addresses: If to Stillwater: City of Stillwater 216 4th Street N. Stillwater, MN 55082 Attention: Tom McCarty If to Lake Elmo City of Lake Elmo 3880 Laverne Avenue North, Suite 100 4 Lake Elmo, MN 55042 Attention: Kristina Handt 17. Severability. If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. 18. Waiver. A waiver by either Lake Elmo or Stillwater of any breach of this Agreement shall be in writing. Such a waiver shall not affect the waiving party’s rights with respect to any other or further breach. 19. Assignment. This Agreement is not assignable without the mutual written agreement of the Parties. 20. Force Majeure. The Parties shall each be excused from performance under this Agreement while and to the extent that either of them are unable to perform, for any cause beyond its reasonable control. Such causes shall include, but not be restricted to fire, storm, flood, earthquake, explosion, war, total or partial failure of transportation or delivery facilities, raw materials or supplies, interruption of utilities or power, pandemic, and any act of government or military authority. In the event either party is rendered unable wholly or in part by force majeure to carry out its obligations under this Agreement then the party affected by force majeure shall give written notice with explanation to the other party immediately. [The Remainder of this Page is Intentionally Left Blank] 5 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date above written. CITY OF LAKE ELMO By: ________________________________ Charles Cadenhead Its: Mayor By: ________________________________ Julie Johnson Its: City Clerk CITY OF STILLWATER By: ________________________________ Ted Kozlowski Its: Mayor By: ________________________________ Beth Wolf Its: City Clerk 6 LA515-1-710921.v1 EXHIBIT A Map of the Project