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HomeMy WebLinkAbout20100301 - VI-06 MEMO To: Honorable Mayor and City Council From: Nick Egger, City Engineer Date: February 25, 2010 Re: Resolution – Approve Master Utility Agreement No. 95955-R Attached for Council consideration is a resolution approving the City’s entry into a Master Utility Agreement for work that the City has requested to be performed by the MnDOT Bridge Contractor during the Bridge replacement project. The agreement outlines the cost responsibilities and procedural requirements that the City, MnDOT, and the Contractor will have during the course of the utility work. Background Several segments of sewer and water mainlines that cross beneath Highway 61 in the area of the bridge project are of the early 1900’s era and need to be upgraded to current standards. It is appropriate to replace these facilities during a time of reconstruction on this segment of the Highway. A map of the affected lines has been attached for reference. The work would involve replacement of these facilities as well as realignment and interconnection of others to reduce the number of lines crossing beneath the highway, thereby minimizing the risk that traffic flow would be disrupted by utility repairs or replacements in the future. Cost Responsibilities It is currently estimated that the utility work requested by the City will cost $555,060.00. However, the actual amount will be determined when MnDOT awards a contract for the Bridge project this coming summer. Once the Bridge contract has been awarded, the City will have 10 days to decide whether or not to accept the Contractor’s proposed cost for the utility work and move forward with having it performed with the Bridge project. If the City decides not to accept the Contractor’s proposal, the work could be performed using the City’s own contracting process and coordinate it with the Bridge project, or the work could also be delayed. If the City elects to have the work done as part of the Bridge project, payment will be due to MnDOT at the start of the project. In any case, costs would be paid for from the City’s Sewer, Water, and WAC funds. Staff Recommendation City staff and the City Attorney have reviewed the language of the agreement and find it to be acceptable. Therefore, staff is recommending that the City Council adopt the attached resolution to approve Master Utility Agreement No. 95955-R. CITY OF HASTINGS Dakota County, Minnesota Washington County, Minnesota Resolution No. RA ESOLUTION FOR PPROVAL OF MDOTMUAN.95955-R NASTER TILITY GREEMENT O UWP FORTILITY ORK TO BE ERFORMED WITH H61BRP IGHWAY RIDGEEPLACEMENT ROJECT WHEREAS,, in the summer of 2010 the Minnesota Department of Transportation (MnDOT) will begin project 1913-64 to replace the Trunk Highway 61 Bridge over the Mississippi River and to th reconstruct the Highway between 5 Street and the bridge over the Canadian Pacific Railway, and WHEREAS, the City of Hastings has requested that MnDOT include several areas of utility replacement work and betterments within the project corridor across and within the Highway 61 Right-of-Way, and WHEREAS, Master Utility Agreement No. 95955-R sets forth the responsibilities for costs related to said utility work, and WHEREAS, said agreement also sets the terms, conditions, and procedures by which MnDOT, the City, and the Contractor will work together to carry out the utility work. NOW, THEREFORE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF HASTINGS AS FOLLOWS; that The City Council hereby approves entry into Agreement No. 95955-R between the City of Hastings and the Minnesota Department of Transportation and authorizes the Mayor and City Clerk to sign said agreement. ST ADOPTED BY THE CITY COUNCIL OF HASTINGS, MINNESOTA, THIS 1 DAY OF MARCH, 2010. Ayes: Nays: Paul J. Hicks, Mayor ATTEST: Melanie Mesko Lee, City Clerk SEAL 101 2ND STREET E MISSISSIPPI BELLE 103 2ND STREET E BRIAR PATCH TOWN COBBLER 105 2ND STREET E 2ND STREET 2ND STREET 111 3RD STREET E CHAMBER OF COMMERCE 111 3RD STREET W 3RD STREET 3RD STREET 308 VERMILLION STREET SPRINT/NEXTEL CITY HALL 308 VERMILLION STREET 314 VERMILLION STREET 300 VERMILLION STREET 4TH STREET 4TH STREET DOWNTOWN TIRE & AUTO 401 VERMILLION STREET 405 VERMILLION STREET ROSSING ART & FRAME 407 VERMILLION STREET 411 VERMILLION STREET UNDERGROUND ART GALLERY EMBARQ 5TH STREET 5TH STREET FIRE DEPARTMENT MnDOT/City of Hastings Service Line Replacement or Utility Mainline Work Areas of Utility Replacement Work in Conjuction Reconnection with Highway 61 Bridge Replacement Project (Address Noted) S.P. 1913-64 (T.H. 61) Prepared by: Utility Agreements Unit Location: Hastings Bridge over the (Receivable) Mississippi River in the City of Hastings, $555,060.00 Dakota County City of Hastings Mn/DOT Agreement Number 95955-R S.P. 1913-64 (T.H. 61) DESIGN-BUILD PROJECT MASTER UTILITY AGREEMENT WITH THE CITY OF HASTINGS THIS MASTER UTILITY AGREEMENTMUA day of , () is made and entered into this , 2009 among the State of Minnesota, acting through its Commissioner of Transportation (Mn/DOT), the City of Hastings; acting by and through its City Council, and including all of its agents, contractors, and subcontractors (Utility Owner); and , a [joint venture][ Corporation][partnership], including all of its agents, contractors and subcontractors (Contractor). RECITALS Mn/DOT has entered into a design-build contract (DB Contract) with the Contractor to design and construct State Project Number 1913-64 on Trunk Highway Number 61 (Project). The Project is located at the Hastings Bridge crossing of the Mississippi River. The project includes bridge replacement and grading, surfacing, drainage, signals and lighting. The Utility Owner owns and operates water mains and sanitary sewer systems, their fixtures, and related equipment (Facilities) inside the limits of the Project. The Project may cause changes to the Facilities. These changes may include relocation, In-Place/Out-of-Service Work, protection in place, removal, replacement, reinstallation, and/or modification of the Facilities. Pursuant to Minnesota Statutes, section 161.46, subdivision 5, the State may relocate the Utility Owner’s Facilities as part of the Project on the trunk highway system. Pursuant to Minnesota Statutes, section 161.46, subdivision 5, the Utility Owner appoints the State as its agent to design and construct the relocation work as part of the Project. Mn/DOT requires the Contractor to include the costs of performing this utility work in its proposal price for the DB Contract. The Contractor will conduct all or a portion of the utility work pursuant to this MUA. The parties agree to ensure that the work is performed according to all applicable requirements. Page 1 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R In order to minimize delays, uncertainties, risks, and additional Project costs, the parties must cooperate with each other to ensure that all necessary relocations of Facilities are performed and closely coordinated with the Contractor’s work under the Project. Because the Facilities are located on public Right of Way, the Utility Owner is not eligible for reimbursement of its relocation costs. The Utility Owner will be responsible for all other costs, including Betterments. The Utility Owner will either perform this work or reimburse the Contractor for performing it. State law requires a written agreement among the parties to set forth the terms and conditions for the design, construction, and payment of the relocation work. I. Standard Conditions In the event of a conflict between this MUA, its incorporated material, or its exhibits and attachments, the parties will resolve that conflict or inconsistency in favor of the most restrictive provision, as Mn/DOT determines at its discretion. The following provisions are incorporated herein as terms and conditions of this MUA: A. Title 23, Code of Federal Regulations, Part 645, and the edition of the FHWA Program Guide: Utility Adjustments and Accommodation on Federal Aid Highway Projects (Federal Regulation), in effect at the execution of this MUA, and any subsequent amendments and replacements B. Mn/DOT’s Policy for Accommodation of Utilities on Highway Right of Way C. All exhibits and policies referenced herein. II. Definitions The definitions of the terms in Exhibit H apply when they are used in the MUA. III. Master Agreement This MUA is a master agreement that establishes a general framework for processing utility work that the Project requires. The actual performance of the utility work will be pursuant to Work Orders issued under this MUA, as described in Section VIII. 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 Page 2 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R required by their procedures, by-laws, and/or applicable law to exercise that authority, and to lawfully authorize their undersigned signatories to execute this MUA and to bind the Utility Owner and the Contractor to its terms. The Utility Owner will attach a Resolution, generally in the form in Exhibit L, to this MUA. The State is authorized to enter into this MUA by Minnesota Statutes, sections 161.45 and 161.46. The persons executing this MUA on behalf of the Utility Owner, Mn/DOT, and the Contractor warrant that they have full authorization to execute this MUA. B.DELEGATION TO THE CONTRACTOR: The Utility Owner and the Contractor acknowledge that Mn/DOT will perform the design and construction of the Project by means of a DB Contract with the Contractor that Mn/DOT has procured in compliance with Minnesota Statutes, sections 161.3410-.3428. Mn/DOT’s entry into this DB Contract may have an impact on the utility work to be performed for the Project, including, without limitation, matters relating to scheduling and coordinating the utility work. The parties agree to the following: 1. Mn/DOT may delegate to the Contractor the duty to perform certain Mn/DOT obligations in lieu of Mn/DOT performing them, as designated by Mn/DOT in the DB Contract. Mn/DOT will retain its obligations to pay the Contractor, and collect payment from the Utility Owner for the performance of utility work required by the Project. 2. The Contractor and the Utility Owner agree to coordinate their efforts and to cooperate with each other when performing any duties or obligations under this MUA. C.PAYMENT FOR RELOCATION WORK: The State will determine the cost of the Utility Work on a contract-unit-price basis. The Utility Owner authorizes the State to pay the Contractor directly for the relocation work. 1. The Utility Owner agrees to pay the State the total cost it incurs to relocate the Facilities. The total cost will include: a. The design engineering, construction and construction engineering cost, which consists of all of the Contractor’s bid item costs to satisfactorily relocate the Facilities according to plans, specifications, and special provisions; 2. Immediately after completing the bid opening procedures, the State will notify the Utility Owner of the actual cost in writing. Once it receives the notification, the Utility Owner has 10 calendar days to accept or reject the total cost in a Page 3 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R written “Cost Schedule.” If the State does not receive a written notice from the Utility Owner within 10 calendar days, the State will consider the lack of response to be the Utility Owner’s acceptance of the actual cost. 3. The State will issue the Utility Owner an invoice for the amount specified in the cost schedule. Pursuant to Minnesota Statutes, section 161.46, subdivision 5, the Utility Owner will promptly reimburse the State for any relocation costs in which the federal government does not participate. D.FEDERAL AND STATE REQUIREMENTS: At all times that they are performing any utility work, the Contractor and Utility Owner must comply with all applicable federal and State laws, rules, and regulations, including all environmental laws and regulations. The Contractor and the Utility Owner must require compliance with these laws and regulations in any subcontracts entered into under this MUA. E.TERM: This MUA is effective on the date Mn/DOT obtains all signatures required by Minnesota Statutes, section 16C.05, subdivision 2. In no event will the term of this MUA, or any Work Order, exceed a duration of five years. This MUA will continue, with the exception of the continuing records retention requirement, ongoing maintenance requirements, audits, and indemnification, until the earlier of five years or when: 1. All of the utility work needed for the Project has been completed; and 2. The Utility Owner repays Mn/DOT for the final cost of the Contractor’s performance of its utility work. F.CANCELLATION: Mn/DOT may terminate this MUA at any time, with our without cause, on 30 Calendar Days written notice to the Contractor and the Utility Owner. 1.Cancellation Without Cause: Mn/DOT may cancel this MUA at any time if it determines that doing so is in Mn/DOT’s best interest. Upon termination, all finished and unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports, and other material that the Contractor prepared under this MUA will become Mn/DOT’s property at Mn/DOT’s discretion. The Contractor will be entitled to payment, on a pro rata basis, for satisfactorily performed services. The State will still be entitled to payment from the Utility Owner for the Contractor’s Work. 2.Cancellation for Cause or Default: If the Utility Owner or the Contractor fail to fulfill their obligations under this MUA in a timely and proper manner, or if Page 4 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R either party otherwise breaches this MUA, Mn/DOT has the right to terminate this MUA for cause upon giving the Utility Owner and the Contractor written notice and a 30-Calendar-Day opportunity for the defaulting party to cure the default or show cause why the termination is inappropriate. Such termination will be at Mn/DOT’s sole discretion and will not limit any other available remedy. Upon termination, all finished and unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports, and other material that the Contractor prepared under this MUA will become Mn/DOT’s property at Mn/DOT’s discretion. The Contractor will be entitled to payment, on a pro rata basis, for satisfactorily performed services. The State will still be entitled to payment from the Utility owner for the Contractor’s Work. a. Notwithstanding the above, the Utility Owner and the Contractor will not be relieved of liability to Mn/DOT for any damages Mn/DOT sustains due to any breach of this MUA. Mn/DOT may withhold any payment for the purposes of mitigating its damages until the exact amount of damages due to Mn/DOT is determined. b. If it is determined for any reason after cancellation that the Contractor or Utility Owner was not in default, or that the Utility Owner’s or the Contractor’s action or inaction was excusable, the cancellation will be treated as a cancellation without cause, and the rights and obligations of Mn/DOT and the Utility Owner or Contractor (whichever is applicable) will be the same as if Mn/DOT had canceled the MUA without cause, as described in Paragraph III.F.1. I.DATA PRACTICES: All parties must comply with the Minnesota Government Data Practices Act (Minnesota Statutes, chapter 13), as it applies to any data received, collected, stored, or disseminated by a party to this MUA or the work performed under it. The Act provides for civil liability for failure to comply with its requirements. IV. The Utility Design Sheet A Utility Design Sheet (UDS), in substantially the same form of Exhibit D, will describe the utility work to be performed under this MUA at each specific location. V. Quality Management A. The DB Contract requires that the Contractor perform certain utility work; therefore, the Contractor will, at its own cost, be responsible for the quality management of the utility work. Quality management will include quality planning, control, assurance, Page 5 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R and improvement. The Utility Owner may conduct Inspections of the Contractor’s work and any oversight activities it deems necessary. The Utility Owner, or its designated Representative, will operate all valves and supervise all shut offs and disconnections for the construction of the utility work. The Utility Owner must notify Mn/DOT, in writing, of all cases of any party’s noncompliance in performing the utility work no more than 14 Calendar Days after the Utility Owner knew or should have known of the noncompliance. B. If any utility work is added to the Contractor’s work according to the Work Order process, the quality management will follow the procedure described in the Work Order. Unless otherwise described in the applicable Work Order, the Contractor will not be required to provide quality control for the utility work. The Utility Owner will be responsible for the quality control of that work. Any quality control the Contractor elects to provide for the Utility Owner will be in addition to, not in lieu of, the Utility Owner’s responsibility. VI. Coordination The Utility Owner and Mn/DOT will coordinate and cooperate with the Contractor to ensure that it performs the work promptly and without disturbance to other project work, minimizes delay and uncertainty, and eliminates excess cost. Coordination will include the following tasks. A.INITIAL COORDINATION MEETING: When the party preparing the plans achieves a level of design where utility conflicts can be determined, the Contractor and the Utility Owner will conduct an initial coordination meeting before beginning the Work Order process. At this meeting, the Contractor will coordinate with the Utility Owner to address pertinent information for the UDSs and discuss potential conflicts. Once the Contractor has the UDS information, a preliminary level of design, and estimated costs, it will schedule a meeting with Mn/DOT and the Utility Owner to: 1. Review the Final Design and construction schedules for the work at each UDS location; 2. Review proposed resolutions of conflicts; 3. Coordinate the performance of the Project work with the design and construction of the utility work at each UDS location; and 4. Negotiate the Work Orders. Page 6 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R B.COORDINATION OF RELOCATIONS: The Contractor will avoid relocating the Utility Owner’s Facilities to the extent practicable. If the Contractor and the Utility Owner cannot agree whether a relocation can be avoided, Mn/DOT will determine the appropriate course of action at its discretion. When practicable, the Facilities will be left in-place and protected. When physical relocation of the Facilities is not reasonably avoidable, the Contractor will relocate those Facilities. The Utility Owner must use its best efforts to cooperate with Mn/DOT and the Contractor to identify any joint users of the Facilities and to assist in the utility work. C. CHANGE IN CONTRACTOR’S DESIGN: If the Contractor makes a design change after the Contractor and the Utility Owner have agreed to a physical relocation of the Facilities, the Contractor and the Utility Owner must coordinate to change the design and/or relocation of those Facilities. D. ONGOING COORDINATION 1. Mn/DOT, the Utility Owner, and the Contractor will meet as reasonably requested by each other to review and coordinate time schedules and track utility work progress. 2. The Utility Owner will not Interfere with the performance of the Project work. VII. Technical Criteria/Performance Standards A. All utility work must be consistent with this MUA and the Utility Owner’s current, reasonable, written specifications; standards of practice; construction methods; and any applicable permit requirements. 1. The Utility Owner must provide the necessary written specifications, standards of practice, and construction methods to Mn/DOT and the Contractor no later than the beginning of the design. 2. The Utility Owner must provide any necessary written specifications, standards of practice, and construction methods that are current at the time the Utility Work is performed to Mn/DOT and the Contractor no later than the date the Work Order is signed for that Utility Work. 3. If the Utility Owner does not provide the above-mentioned documents, the Contractor will be under no obligation to follow them when performing the utility work. Page 7 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R 4. In the event of a conflict between this MUA and the Utility Owner’s written specifications, standards of practice, and construction methods, the parties will resolve that conflict or inconsistency in favor of the most restrictive provision, as Mn/DOT determines at its discretion. B. The plans for the design of the utility work must show at least the existing topography, Right of Way, lanes of travel, the x and y coordinates of the Facilities’ location, and the z coordinate of the Facilities’ location, if applicable. 1. The Contractor will prepare plans that show pertinent details of the design, including size, valve information, etc., the x and y coordinates of the Facilities’ location, and the z coordinate of the Facilities’ location, if applicable. 2. The Design Approval Letter The Utility Owner must review and Approve those plans by executing a Design Approval Letter (Exhibit F). This review must be conducted promptly and according to any timelines described in the MUA or the Work Order. The Utility Owner will not unreasonably withhold Approval. 3. The most recent plans and specifications will govern the scope of the utility work. When the final plans are completed they will supplement or replace these plans and specifications, as applicable. VIII. Work Orders Before any party can commence any utility work, Mn/DOT, the Utility Owner, and the Contractor must execute a Work Order according to the process below, and Mn/DOT must issue any necessary Utility Permits (Exhibit B). A.FORM: The Work Orders will be in substantially the same form as Exhibit E. B.CONTENTS/AMENDMENT: The Work Order, and any agreements or documents executed or prepared pursuant to it: 1. Will include the following: a. Design plans; b. Any available, applicable design details; and c. Any Right of Way/easement documents at the UDS location. Page 8 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R 2. Will address the following: a. The scope of the utility work; b. The utility work schedule; c. The Utility Owner’s Inspection fees; and d. Any other conditions applicable to the Work Order that this MUA does not already address. 3. May also amend the terms and conditions of this MUA upon inclusion of appropriate language describing the change. C.NEGOTIATION: Mn/DOT, the Utility Owner, and the Contractor must promptly meet and confer to resolve any comments or disagreements regarding the Work Order through good faith negotiation. The Contractor will prepare the Work Order after the parties resolve the comments or disagreements. D.SUBMISSION/RESPONSE/EXECUTION: The Contractor will provide notice of the utility work and a schedule for performing it in a Work Order to the Utility Owner. The Utility Owner will respond (by executing or commenting on problems) to all Work Orders no more than 14 Calendar Days after receiving them. E.STANDARDS: The standards, procedures, and terms in this MUA and any Work Order will govern the performance of the utility work. All standards, procedures, terms, and conditions set forth in this MUA, and in all Mn/DOT Utility Permits issued subsequent to the execution of the Work Orders, will be incorporated into each Work Order. All terms and conditions applicable to the utility work that are not already included in this MUA will be specifically described in the Work Order. Failure to execute a Work Order will not excuse any party’s failure to perform any legal obligation. F.EFFECTIVE OBLIGATION: No obligation will be effective until the Work Order has been fully executed. IX. Scheduling A. The Contractor will complete any design, construction, and/or Inspection of utility work according to a schedule described in the Work Order. If necessary, the parties may agree to negotiate the use of acceleration methods (e.g., imposing overtime work or importing contractors from outside the local area) in good faith if necessary to meet the Contractor’s scheduling requirements. Page 9 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R B. The Utility Owner will review the Contractor’s design no more than 14 Calendar Days after receiving it, unless the Work Order requires a different time period. If the design is consistent with the performance standards described herein, the Utility Owner must Approve it and notify Mn/DOT and the Contractor of the Approval within this time period. If the design does not meet performance standards, the Utility Owner must submit its comments to the Contractor and notify Mn/DOT within this time period. C. The Utility Owner will have the right to reject any design work that does not meet the Technical Criteria/Performance Standards described in Section VII. If it rejects any design work, the Utility Owner must immediately notify Mn/DOT and the Contractor, in writing, of its grounds for rejection and suggestions for correcting the problem. The Utility Owner will review the revised design work no more than 7 Calendar Days after receiving it, unless the Work Order requires a different time period. X. Deadlines and Delays A. Neither the Contractor nor the Utility Owner will be liable for any delay or failure to perform any obligation in this MUA, nor will 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. The Contractor will timely commence, diligently prosecute, and complete that work on or before the deadline in a Work Order. The Contractor must complete all of its utility work at all locations on or before the deadline established pursuant to the Notice and Order. C. If the Contractor fails to meet a deadline, except where that failure is due to Force Majeure, the Contractor must pay the Utility Owner the actual documented costs and damages the Utility Owner incurs as a result of the Contractor’s delay. D. If the Utility Owner fails to meet a deadline, except where that failure is due to Force Majeure, the Utility Owner must pay the Contractor the actual documented costs and damages the Contractor incurs as a result of the Utility Owner’s delay. E. If any party fails to meet deadlines set in a Work Order, then any affected time deadlines for any other party’s design, construction, and/or Inspection of the utility work will be revised accordingly. Page 10 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R XI. Responsibility for Cost A. CHANGE IN CONTRACTOR’S DESIGN: If the Contractor and the Utility Owner have agreed to a relocation of the Facilities, and the Contractor changes the design, in a way that results in additional design or relocations, the Contractor will be responsible for paying the resulting cost. B. DEPRECIATION: Depreciation credit will only be allowed to the extent authorized by 23 CFR 645.117 (h)(2). C. RETAINAGE: For any payments due to the Utility Owner, Mn/DOT will retain five percent of the amount claimed until Mn/DOT has conducted a final audit. D. SALVAGE: If the Contractor recovers materials when performing the utility work that no party will reuse, those materials will become the Contractor’s property. E.BETTERMENTS: The Utility Owner is responsible for the cost of any Betterments to its Facilities. XII. Performance of the Utility Work The Contractor and the Utility Owner may split the responsibilities for the design and construction elements of the utility work at any particular UDS location, or perform one or both of the elements itself, according to this section. A. RESPONSIBLE PARTY: The Contractor will be responsible for performing the design and construction of the utility work at each particular UDS location. B. TIME OF ESSENCE: Time is of the essence in the performance of any utility work. C.DESIGN: The Contractor may design the utility work in conjunction with performing the Project Work if the Utility Owner so authorizes in a Work Order. The Contractor must complete the design according to the schedule in the Work Order. The design will be subject to the Utility Owner’s Approval by execution of a Design Approval Letter (Exhibit F). D. CONSTRUCTION 1.Contractor Construction: The Contractor must complete the construction according to the schedule in the Work Order. The construction will be subject Page 11 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R to the Utility Owner’s Inspection and Approval by execution of a Construction Approval Letter (Exhibit G(3)). 2.Traffic Control: The Contractor will, at its own cost, provide traffic control for any utility work, whether the Contractor or the Utility Owner performs that utility work. 3.X, Y, Z Coordinate Information: Upon completion of the utility work, the Contractor will, at its own cost, collect and record x, y, and z coordinate information, at an accuracy of plus or minus 6 inches, for all Facilities that were relocated or installed as part of the Project. The Contractor will provide this information to Mn/DOT and the Utility Owner, and the information must meet the following requirements: a. Underground Facilities must be located and measured to an accuracy range of plus or minus 6 inches according to the Federal Geographic Data Committee, National Mapping Division, United States Geological Survey, United States Department of the Interior’s “Part 3: National Standard for Spatial Data Accuracy of the Geospatial Positioning Accuracy Standards.” b. All measurements must be reported in x, y, and z coordinates with reference to the Project’s horizontal and vertical datum. c. Horizontal and vertical alignment and elevation must be reported at minimum intervals of 100 feet and at each point where the horizontal or vertical direction of the Utility Facilities changes. The x, y, and z coordinates must define the top center of the Facilities, except for gravity lines, where the coordinates will be the invert of the Facilities. d. Notwithstanding the requirements in Clause XIII.D.4.c., the x, y, and z coordinates of Facilities that are installed by jacking, boring, plowing, or other means that do not involve an open trench must be provided at the endpoints of the underground facility (e.g., casing or pipe) and at each point where the direction of the Facilities changes. E. PERMITS: With the exception of the Mn/DOT Utility Permits, the Contractor will be responsible for obtaining all necessary permits. These permits include those from local authorities with jurisdiction over the Right of Way used for utility work outside the Project limits, and the other party must cooperate in that process as needed. The Utility Owner and the Contractor agree to coordinate to prepare the Mn/DOT Utility Permit Application, Form 2525, as necessary. Page 12 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R F. INCIDENTAL UTILITY WORK: The Contractor will be solely responsible for performing any Incidental Utility Work. G. PREQUALIFIED SUBCONTRACTORS/SUBCONSULTANTS: If the Contractor wishes to contract the design or construction of the Utility Work, it must use a subcontractor or subconsultant that the Utility Owner has pre-qualified to perform that work. The Utility Owner will prepare a list of prequalified subcontractors and subconsultants and provide it to Mn/DOT and the Contractor no more than 7 Calendar Days after this MUA has been executed. The Utility Owner will update the list as needed and provide those updates to Mn/DOT and the Contractor. If the Utility Owner does not provide a list, the Contractor may use other subcontractors or subconsultants. If the subcontractors or subconsultants on that list are not readily available, the Contractor may use other subcontractors or subconsultants if it receives the Utility Owner’s Approval. XIII. Utility Owner to Perform Inspection A. The Contractor will, at its own cost, provide any necessary traffic control for the Utility Owner’s Inspections of the utility work. B. The Utility Owner may perform Inspections of the construction of any Utility Work that the Contractor performs. The Utility Owner’s designated inspector will coordinate the Inspections with the Contractor. C. The Utility Owner may perform Inspections at any time during construction, and will perform a final Inspection no more than 30 Calendar Days (or another time period agreed to by the parties) after completion of the construction. The Utility Owner will provide the Contractor with a signed Construction Acceptance Letter (Exhibit G(1)) for the completed construction work if it makes a conditional determination that the utility work appears to meet the Technical Criteria/Performance Standards. The 30- Calendar-Day time period (or other time period agreed to by the parties) will begin at the time the Contractor notifies the Utility Owner, in writing, that the construction is complete. The Utility Owner will have the right to reject any construction of the utility work that does not meet the Technical Criteria/Performance Standards. If the Utility Owner rejects any construction of the utility work, the Utility Owner must notify the Contractor, in writing, of its grounds for rejection and suggestions for correcting the problem. Upon receiving notice that the Contractor has made corrections to the utility work, the Utility Owner will review the revised utility work no more than 7 Calendar Days after its completion, unless the Work Order requires a different time period. Page 13 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R D. The Utility Owner’s Inspection, Acceptance, and Approval of the utility work will not be construed as a waiver by the Utility Owner of any claim it may have under applicable law. XIV. Approvals and Acceptances Any Acceptance, Approval, or other similar action (Approval) pursuant to the MUA: A. Must be in writing to be effective (unless deemed granted pursuant to paragraph XIV.C.). B. Will not be unreasonably withheld or delayed. If Approval is withheld, the approving party must, in writing, specifically state the reason for withholding or delaying Approval, and must identify, with as much detail as possible, what changes are required for Acceptance or Approval. C. Approval between the Contractor and the Utility Owner will be deemed granted if the requesting party does not receive a response 14 Calendar Days after submitting the request, except where the DB Contract documents between Mn/DOT and the Contractor provide otherwise. The requesting party must send out requests for Approval according to Section XV. XV. Authorized Agents and Notices A. AUTHORIZED AGENTS: The individuals below are designated authorized agents of Mn/DOT, the Utility Owner and the Contractor. If a party wishes to designate a new or substitute Representative, it may do so in writing at any time. For Mn/DOT: Number 1 Name: Steve Kordosky Title: Design-Build Project Manager Address: 1500 W Co Rd B2 Roseville, MN 55113 Email: Steve.Kordosky@state.mn.us Phone: 651/234-7880 Fax: Page 14 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R Number 2 Name: Jim Zigman Title: Assistant Utilities Engineer Address: 395 John Ireland Blvd, St. Paul MN 55155-1899 Email: James.Zigman@state.mn.us Phone: 651/366-4607 Fax: 651/366-4769 For the Utility Owner: Number 1 Name: Nick Egger, P.E. Title: City Engineer Address: 1225 Progress Drive Hastings, MN 55033 Email: nickegger@ci.hastings.mn.us Phone: (651) 480-2370, Cell (651) 248-7262 Fax: (651) 437-5006 Number 2 Name: Thomas Montgomery, P.E. Title: Public Works Director Address: 1225 Progress Drive Hastings, MN 55033 Email: tmontgomery@ci.hastings.mn.us Phone: (651) 480-6188 Fax: (651) 437-5006 For the Contractor: Number 1 Name: Title: Address: Email: Page 15 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R Phone: Fax: Number 2 Name: Title: Address: Email: Phone: Fax: B. AUTHORITY: The individuals listed above will have the authority to sign/Approve Work Orders, inspect and reject services, Approve invoices for payment, and act otherwise for Mn/DOT, the Utility Owner, and the Contractor. C. NOTICES: Any notices that Mn/DOT, the Utility Owner, and the Contractor provide under this MUA may be e-mailed, faxed, hand delivered, or given by certified or registered mail to the individuals at the addresses set forth above. Paper copies must promptly follow up any e-mailed notices. The sender will have the burden of confirmation of delivery of any faxed notices. XVI. Utility Ownership, Operation, and Maintenance A. Upon completion of the construction of the utility work and receipt of its Approval, the Utility Owner will be the owner of the utility work. B. After it provides a signed Construction Approval Letter (Exhibit G(3)) to the Contractor, the Utility Owner will have sole responsibility of the operation and maintenance of the Facilities. C. Once the utility work is complete, the Utility Owner must maintain the Facilities at its own expense. The Utility Owner may access the Facilities that are relocated or overtaken in-place inside Mn/DOT Right of Way under a Mn/DOT utility permit. The Utility Owner must follow the terms of the utility permit when it performs any service or maintenance work. The Utility Owner may only open and disturb the trunk highway Right of Way without a permit in the case of an emergency that is dangerous to the public and requires immediate attention. Upon learning of an emergency, the Utility Owner must immediately notify the State Patrol. The Utility Owner must take all necessary and reasonable safety measures to protect the public and must cooperate Page 16 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R fully with the State Patrol. In this event, the Utility Owner must request a permit from the proper authority no later than the following Working Day. D. All terms and conditions in the Utility Permits that Mn/DOT has already issued for the Facilities will continue to apply unless subsequent Mn/DOT utility permits supersede them. If the Utility Owner has Facilities located in the Right of Way of the Project without a current utility permit, it must promptly apply for that utility permit. Mn/DOT may, in its reasonable discretion, issue a utility permit to the Utility Owner or require the Utility Owner to relocate the Facilities off of Mn/DOT Right of Way, unless the Facilities pre-existed Mn/DOT’s construction of the highway. If the Utility Owner must relocate off the Right of Way, it will do so at its own cost. XVII. Betterment A. As Mn/DOT determines at its discretion, Betterment work may be eligible to be performed if: 1. The work is compatible with the Project Work; 2. The work would not Interfere with the Project Schedule; or 3. It is feasible to separate the Betterment work from any related utility work that the Contractor is responsible for performing. B. If the Utility owner wishes to include eligible Betterment work, in addition to what was included in the Contractor’s bid item costs, the Utility Owner will negotiate the cost (on a lump sum or actual cost basis) for that Betterment work directly with the Contractor. The Utility Owner must provide a copy of that lump sum amount or actual cost estimate to Mn/DOT with a Resolution in the form of Exhibit M. 1. The Utility Owner will be responsible for the cost of any Betterment work. If the Utility Owner authorizes the Contractor to do the Betterment work, Mn/DOT, the Utility Owner, and the Contractor must execute a Work Order describing the terms and conditions of that work. Upon the execution of the Work Order, the Utility Owner will pay the negotiated price of the Betterment work to Mn/DOT. Mn/DOT will then add the Betterment work to the DB Contract with the Contractor. 2. If the parties cannot agree to a lump sum cost for the Betterment work, the Contractor will perform the work on a time and materials basis pursuant to the Page 17 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R DB Contract. The Utility Owner will pay Mn/DOT the total, actually incurred cost on that basis. a. If the Contractor performs the work on an estimated time and materials basis, and the actual costs for the work exceed the estimated amount, the Utility Owner will pay those excess costs to Mn/DOT. b. If the Contractor performs the work on an estimated time and materials basis, and the actual costs for the work are less than the estimated amount, Mn/DOT will refund the remaining funds to the Utility Owner. Mn/DOT will make that refund no more than 30 Calendar Days after receiving an invoice and supporting documentation for that work. 3. If the Utility owner does not accept the Contractor’s offered price for the Betterment work, the Utility Owner may reject that price. The Utility Owner may then select a different contractor to perform the Betterment work, provided that the performance complies with the Contractor’s Project schedule. Mn/DOT, the Utility Owner, and the Contractor will execute a Work Order to describe the terms and conditions of that Betterment work. XVIII. Continuity of Service A. All Facilities must remain fully operational during all phases of construction, except as the Utility Owner specifically allows or Approves in writing. B. To the greatest extent practicable, the Contractor must take measures to ensure that all of the Facilities remain operational at all times. Necessary interruptions of service, including shut downs and temporary diversions, must be described in the Work Order and are subject to the Utility Owner’s Approval. The Contractor, at its own cost, must do the following to maintain continuity: 1. Coordinate with the Utility Owner regarding any schedule, design, construction, and Inspection of the utility work; 2. Keep the Utility Owner fully informed about changes that may affect the Facilities; 3. Include the Utility Owner when making decisions that affect the Facilities so that the Utility Owner can make arrangements to provide uninterrupted or minimally interrupted service to its customers; and Page 18 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R 4. Comply with any additional, reasonable service continuity conditions described in the applicable Work Orders. XIX. Damage to Facilities and Other Property The Contractor and the Utility Owner must exercise due caution and care to avoid causing damage to the Facilities or the Project when performing utility work or Project work. The Contractor will be responsible for any damages it causes to the Utility Owner’s property, Facilities, structures, or persons. The Utility Owner will be responsible for any damages it causes to the Contractor’s property, facilities, structures, or persons. The damaging party must immediately notify the other party of the occurrence of any damage and will be responsible for the repair or cost of the damage, at its own expense, to the other party’s reasonable satisfaction. XX. Partnering The DB Contract includes a section establishing a “partnership” process. That section is attached hereto as Exhibit N. Except where the terms of this MUA expressly exempt it, every disagreement between the Utility Owner and the Contractor, and/or between the Utility Owner and Mn/DOT (Dispute) arising under this MUA, is a Dispute subject to the terms of this section. When a Dispute arises, the Utility Owner and the other party(ies) to the Dispute must first attempt to informally resolve it. A. 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 Mn/DOT project manager, as identified by Mn/DOT. If the Mn/DOT project manager is unable to resolve the Dispute to the parties’ mutual satisfaction, the Utility Owner and the Contractor will attempt to resolve the matter through the partnering process. B. If the Dispute is between the Utility Owner and Mn/DOT, the Utility Owner and the Mn/DOT project manager must first attempt to informally resolve the Dispute. If the Utility Owner and the Mn/DOT project manager are unable to reach a mutually satisfactory resolution, the parties will attempt to resolve the matter through the partnering process. XXI. Indemnification A. Mn/DOT and the Utility Owner will each be responsible for their own acts and omissions and the results thereof to the extent authorized by law. Minnesota Statutes, section 3.736 and other applicable law govern Mn/DOT’s liability. Page 19 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R 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. B. The Utility Owner does not waive any defense or immunity of third parties. The Utility Owner, in defending an action on behalf of Mn/DOT, will be entitled to assert every defense or immunity that Mn/DOT could assert on its own behalf. XXII. Claims The Utility Owner certifies that its workers compensation insurance coverage complies with Minnesota Statutes, section 176.181, subdivision 2. The Utility Owner’s employees and agents are not considered State employees. Mn/DOT is not responsible for any claims asserted by the Utility Owner’s employees, agents, subcontractors, or any third parties under the Minnesota Workers Compensation Act. 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. Minnesota Statutes, section 3.3736 and other applicable law govern the liability of Mn/DOT. XXIII. No Liens The Contractor will keep the relocated Facilities free from any statutory or common law lien arising out of any utility work it performs, materials it furnishes, or obligations it incurs. The Utility Owner will keep the relocated Facilities, the Project, and the Right of Way free from any statutory or common law lien arising out of any utility work it performs, materials it furnishes, or obligations it incurs. XXIV. No Offsets The utility work performed under each Work Order will be treated as a separate job with separate billing. There will be no offsets between the amounts one party owes the other, whether for the same Work Order or for different Work Orders, except for the Betterment, salvage, and/or retirement value credits described in this MUA. XXV. Third-Party Beneficiary There are no third-party beneficiaries to this MUA. Page 20 of 23 S.P 1913-64 (T.H. 61) Agreement Number 95955-R XXVI. 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. XXVII. Nondiscrimination A. The Utility Owner will comply with the United States Department of Transportation’s nondiscrimination regulations. These regulations are in the current version of the Code of Federal Regulations, title 49, part 21. The Utility Owner must incorporate these regulations by reference in all contracts. B. Minnesota Statutes, section 181.59 and any applicable local ordinances pertaining to civil rights and nondiscrimination are considered part of this MUA. XXVIII. Merger/Amendments This MUA contains all negotiations and agreements between Mn/DOT, the Utility Owner, and the Contractor. No prior oral or written communications, understandings, or agreements may Any amendment to this MUA must be in writing. An be used to bind either party. amendment will not be effective until the same parties who signed and approved this Agreement, or their successors in office, sign and approve the amendment. The remainder of this page was left blank intentionally. Page 21 of 23 S.P 1913-64 (T.H. 61) Agreement Number _____ 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 HASTINGS By: Mayor Date: By: City Clerk Date: Page 22 of 23 S.P 1913-64 (T.H. 61) Agreement Number _____ Utility Owner: City of Hastings STATE OF MINNESOTA DEPARTMENT OF TRANSPORTATION Department of Transportation Recommended for Approval: Approved: By: By: District Engineer/Metro Utility Coordinator Director, Office of Technical Support Date: Date: Office of Contract Management Department of Administration Approved as to Form and Execution: By: By: Date: Date: CONTRACTOR By: Its: Date: Page 23 of 23