HomeMy WebLinkAbout[11a] SCAWAC Update
Council Agenda Item 11 a
MEETING DATE: February 21, 2008
AGENDA ITEM: Cooperative Agreement
SUBMITTED BY: Administration
BOARD/COMMISSION/COMMITTEE RECOMMENDATION:
PREVIOUS COUNCIL ACTION:
BACKGROUND INFORMATION: The SCAWAC (St. Cloud Area Wastewater Advisory Committee) is a
committee that meets regularly to discuss the Wastewater issues. While St. Cloud owns the
Wastewater Treatment Plant, the five area cities have a significant interest and are responsible for
ongoing maintenance and costs. The SCAWAC was established as a method of communication and each
City has two representatives. The representatives for St. Joseph are Tracy Ekola, SEH and Jim Marthaler.
The SCAWAC has been working for a number of months on the St. Cloud Treatment Plant Expansion.
The area Administrators and Finance Directors became involved in the process once the cost of the
Treatment Plant became known and agreements needed to be drafted.
All of the area Cities were required to determine the amount of treatment that would be needed over
the next 10 and fifteen years. The treatment plant consists of three phases -Design, Construction and
Rehabilitation. The design phase is the current phase and that is what prompted the Cooperative
Agreement. As part of the discussion, the Cities agreed to a pool capacity, which we all pay-for and is
utilized by a contracting party after they run out of capacity. This provision requires a separate contract
and has had considerable discussion.
Some Cities believe that we should only focus on the cooperative agreement; however, St. Joseph is one
of the Cities that want the Cooperative Agreement completed at the same time. We want to make sure
that before we start any process, we are aware of our commitment and liability. The largest issue in the
Pool Capacity Agreement is the premium rate for utilization of the pool capacity and lease agreements.
While no one objects to a premium it is the rate that we are objecting to. If we are all partners, no one
City should be penalized. The current premium for the pool is 7.5% and the lease rate is 5%.
It has been St. Joseph and Sauk Rapids that has raised the issue and Waite Park and St. Augusta are
following the lead. We are in the process of running an analysis on the new rates and will have more
information at the Council meeting.
At the end of the SCAWAC meeting on February 14, all Cities agreed that the Pool Capacity and
Cooperative Agreement should be executed at the same time. Therefore, all Cities are taking the
agreements back, not for approval, but for input.
With regard to the cooperative agreement, the only concern I raised was the Change Order provision.
The original agreement allowed St. Cloud to approve all change orders. The revised agreement adds the
additional language we were looking for.
Tracy Ekola will be at the meeting to answer any questions. This has become a complex issue and
difficult to explan.
BUDGET/FISCAL IMPACT:
ATTACHMENTS:
REQUESTED COUNCIL ACTION: Only consensus needed at this meeting
EXHIBIT C
of the
Cooperative Sewer Use Agreement
November 17, 2006
ST. CLOUD AREA WASTEWATER TREAMENT FACILITY
POOL CAPACITY AGREEMENT
(Note: The following language, or similar, will be included in the contracts between the Cities of
St. Cloud, Sauk Rapids, Sartell, St. Joseph, Waite Park and St. Augusta (Project Partners) for
the rehabilitation, upgrade and expansion of the St. Cloud Area Wastewater Treatment
Facilities)
DEFINITIONS:
Pool Capacity (PC): Pool Capacity is the reserve of wastewater treatment capacity to
be constructed in the WWTF expansion project, but not to be initially allocated to any of
the Project Partners. The total Pool Capacity to be constructed in the WWTF expansion
project is 1,350,000 gallons per day (1.35 MGD).
Pool Capacity Account (PCA): This is a special account to be established by the City
of St. Cloud for the deposition of payments received from the Project Partners in
consideration for the allocation of excess Pool Capacity as provided elsewhere in this
Agreement. Funds that are deposited in this account shall be invested by the City of St.
Cloud, with interest to accrue to the PCA.
Pool Capacity Unit {PCU): A PCU is a unit of wastewater treatment capacity equal to
25,000 gallons per day (0.025 MGD) of domestic strength wastewater.
Project Partners: Includes all of the parties to this Agreement (i.e. -the cities of St.
Cloud, St. Augusta, St. Joseph, Sartell, Sauk Rapids and Waite Park) who are working
together cooperatively to provide for the rehabilitation, upgrade and expansion of the St.
Cloud Area Wastewater Treatment Facilities (VVVVfF).
.Review Committee: The purpose/role of this committee shall be to review and decide
requests to purchase or reallocate Pool Capacity and to take related actions as
necessary to fulfill the terms of this Agreement. This committee shall consist of the
following members: The St. Cloud Public Utilities Director or her/his designee, the St.
Cloud Public Services Director or her/his designee, a St. Cloud City Council Member,
and one representative each to be appointed by the City Councils of St. Augusta, St.
Joseph, Sartell, Sauk Rapids and Waite Park. The St. Cloud Public Utilities Director or
designee (Director) shall act as chair of the Review Committee. Review Committee
proceedings shall be governed by Roberts Rules. A simple majority vote of the full
committee (i.e.- five affirmative votes) shall be required for approval of Committee
actions.
Wet Weather Period (WWP): A WWP is a time when the total monthly wastewater #low
to the WWTF is elevated by ten percent (10%) or more above the average flow rate due
EXHIBIT C
of the
Cooperative Sewer Use Agreement
to inflow and/or infiltration as determined by the St. Cloud Public Utilities Director and
presented to the Review Committee.
POOL CAPACITY:
Initial Responsibility for Payment: Project Partners shall be responsible for the
payment of a portion of the initial cost to construct Pool Capacity in accordance with the
following table:
TABLE "A"
Initial Responsibility for Payment of Pool Capacity Construction Costs
**Initial Share of Pool Capacity Costs**
CSC Gals./dav PCU's Percent
St. Cloud 350,000 14 25.92%
Bartell 225,000 9 16.67%
Sauk Rapids 225,000 9 16.67%
St. Joseph 225,000 9 16.67%
Waite Park 225,000 9 16.67%
St. Augusta 100.000 4 7.40%
Total: 1, 350,000 54 100.00%
The payments to be made by each City for its proportionate share of Pool Capacity are
included in the overall payments for expansion and rehabilitation of the WWTF as
provided elsewhere in this Agreement.
Value of Pool Capacity Units: The cost/value of each PCU shall be based on the
actual bid prices and construction costs for the WWTF expansion. The value of the PCU
shall be formally set by the Review Committee following receipt of bids and construction
of the WWTF expansion project. The PCU value thusly -set by the Review Committee
shall be known as the "Initial PCU Value". At this time it is estimated that the Initial PCU
Value will be approximately $100,000. The PCU value will be adjusted on January 15tH
of each year by application of the following formula:
Adjusted PCU Value = Initial PCU Value multiplied by the ratio of the Engineering
News Record (ENR) Construction Cost Index at the time of
adjustment divided by the ENR Construction Cost Index at
the time of construction.
Adjusted PCU Value = Initial PCU Value x (ENR2 / ENR1)
Where ENR1 = ENR 20-City Construction Cost Index,
General Purpose, at time of construction
EXHIBIT C
of the
Cooperative Sewer Use Agreement
and ENR 2 = ENR 20-City Construction Cost Index,
General Purpose, at time of adjustment
Qualifying Criteria to Apply for Pool Capacity: A City may, under any of the following
circumstances, make application to purchase Pool Capacity:
1. Ordinary Growth - In the event that a City's monthly average flow during any period
of six consecutive months, exclusive of WWP periods, exceeds 90% of the City's
allocated capacity..
2. Annexation of Existing Developed Areas - In the event that a City is about to enter
an annexation agreement that involves the provision of wastewater collection
services to an existing developed area and the resultant increase in wastewater flow
is expected to cause the City's monthly average flow to exceed 90% of that City's
allocated capacity within the subsequent 24-month period. This provision does not
apply to orderly annexation areas that exist as of the date of this Agreement.
3. Pending Commercial or Industrial Development - In the event that a City is about to
enter an agreement that involves the provision of wastewater collection services to a
proposed significant commercial or industrial development and the resultant
wastewater flow increase is expected to cause the City's monthly average flow to
exceed 90% of that City's allocated capacity within the subsequent 24-month period.
Submission of Applications:
1. Applications to purchase Pool Capacity Units must be made in writing and submitted
to the Director of Public Utilities for the City of St. Cloud (Director). Applications shall
include background and supporting information as necessary to allow for the fair
evaluation of the Application, or as requested by the Director or the Review
Committee.
2. PCU requests shall be in whole units. Multiple PCU allocations may be
requested/considered, however, if necessary to meet near term needs of existing
developed areas that are in the process of being annexed and/or the needs of
pending commercial or industrial development areas.
3. Applications for Pool Capacity will not be accepted unless PC is available. If PC is
not available, qualifying City's may apply for Lease Capacity, if available, as
provided under another section of this Agreement.
Consideration of Applications:
1. The Director shall, within 30 days of receipt, convene a meeting of the Review
Committee to consider applications for Pool Capacity. The applicant City will be
invited to the Review Committee meeting to present information and answer
questions.
EXHIBIT C
of the
Cooperative Sewer Use Agreement
2. If the Review Committee finds that an Application meets the qualifying criteria set
forth herein, and the cumulative amount of this and all previous PCU's requested for
purchase by the applicant City is less than or equal to that City's initial cost share of
PCU's as shown in Table "A", then the Review Committee shall approve the
Application without additional payment.
3. If the Review Committee finds that an Application is consistent with the #erms of this
Agreement, but the cumulative amount of this and all previous PCU's requested for
purchase by the applicant City exceeds that City's initial cost share of PCU's as
shown in Table "A", then the Review Committee shall approve the Application
subject to the payment of the amount indicated in the "Payment" section below.
4. If an Application is approved, PC will ordinarily be allocated in increments of one
PCU at a time. If the Review Committee approves only a portion of such request, it
shall be in whole units and accompanied by a written statement stating the reasons
for such action.
5. If the Review Committee finds that an Application does not meet the qualifying
criteria or does not otherwise comply with the terms of this Agreement, then the
Committee shall deny the request. In this event the Review Committee shall
prepare a written statement indicating the reasons for the denial.
Payment for the Allocation of PCU:
1. An applicant City shall not be required to make payment for the allocation of PCU's
that are cumulatively less than or equal to that City's initial share of PCU's.
2. An applicant City shall be required to make payment in the following amount for the
allocation of PCU in excess of that City's initial share of PCU as shown in Table "A":
Payment =The payment amount shall be equal to the approved number of
Pool Capacity Units in excess of a City's initial share of PCU,
multiplied by the value of each Pool Capacity Unit as defined
herein, multiplied by the factor 1.075 (7.5%).
Payment = Excess PCU x Adjusted PCU Value x 1.075
3. The amount required herein shall be paid in full within 60 days of the date of
approval by the Review Committee. Payment shall be made to the City of St. Cloud
Public Utilities for deposit in the Pool Capacity Account. If payment is not received
within the time specified, the Review Committee's action to allocate PCU to the
applicant City shall be considered null and void.
Distribution of Pool Capacity Account Funds: When the PC is exhausted, the
balance in the Pool Capacity Account will be distributed to all City's who used less than
their original PC allocation. This payment shall be in proportion to the number of PCU's
EXHIBIT C
of the
Cooperative Sewer Use Agreement
that each such City paid for through its original PC allocation (as shown in Table "A"),
but did not use.
Capacity Report: The Director shall annually provide a written report to the Project
Partners summarizing the wastewater flow rates, allocated WWTF capacity, and
allocated Pool Capacity for each City, and the status of the Pool Capacity reserve.
LEASE CAPACITY
Application for Lease Capacity: If a City meets the qualifying criteria to apply for Pool
Capacity, but all 54 PCU's have be allocated, then that City may make application to
lease. Unused Capacity, if available.
Unused Capacity: In the event that a City makes application to lease Unused Capacity
from other cities, then the Review Committee shall review the existing flow rates for all
Cities. If at that time the Review Committee finds that the average flow for any City
during any period of six consecutive .months, exclusive of WIMP periods, is less than
90% of that City's allocated capacity, then the Review Committee may declare a portion
of that City's allocated capacity to be Unused Capacity
The maximum amount of a City's allocated capacity that may be declared to be Unused
Capacity shall be determined by multiplying a City's total allocated capacity by ninety
percent (90%) and then subtracting that City's average monthly flow during the
preceding six consecutive month period exclusive of WWP periods, and then rounding
to the nearest whole number of PCU's.
Unused Capacity will be removed from the City's allocated capacity until additional plant
capacity is made available by expansion or other means and shall be assigned to the
Unused Gapacity Pool as described below. Unused capacity will be returned to a City
when additional plant capacity is made available to all lease holders.
A City may opt not to allow the reassignment of any portion of its allocated capacity to
the Unused Capacity Pool, however, in this event, that City shall agree to work
proactively with the other Project Partners in good faith to expand the capacity of the
WWT~F.
Unused Capacity Pool: The Unused Capacity thusly determined from all Cities shall
be assigned to the Unused Capacity Pool. Unused Capacity may then be subject to the
Lease provisions set forth herein if so determined by the Review Committee.
Lease of Unused Capacity:
1. If Unused Capacity from one or more cities has been declared by the Review
Committee and a City meets the qualifying criteria to apply for Poo! Capacity then
that City is eligible to lease Unused Capacity from the Unused Capacity Pool.
EXHIBIT C
of the
Cooperative Sewer Use Agreement
2. Unused Capacity will be allocated by the Review Committee in whole PCU's
whenever possible up to the number of PCU's that exceeds the applicant City's
demonstrated need according to the qualifying criteria for Pool Capacity. Unused
Capacity thusly allocated to an applicant City shall also be known as Lease
Capacity.
3. If the Review Committee finds that an Application does not meet the qualifying
criteria or does not otherwise comply with the terms of this Agreement, then the
Committee shall deny the request. In this event the Review Committee shall
prepare a written statement indicating the reasons for the denial.
Lease Terms:
1. Once allocated, Lease Capacity shall be assigned to the applicant City until any of
the following events occur: a) the WWTF is expanded, b) the Review Committee
determines that the applicant City no longer needs or qualifies for Lease Capacity, or
c) this Agreement is otherwise lawfully terminated.
2. An applicant City shall be required to make annual payment in the following amount
in consideration for Lease Capacity:
Annual Lease Payment =Number of leased PCU's multiplied by the most recently
determined PCU value multiplied by a factor of .05 (5.0%).
Annual Lease Payment =Number of PCU's x PCU Value x .050
3. The lease payment shall be made in a lump sum within 30 days of the approval of
the lease by the Review Committee, and shall thereafter be paid annually within 30
days of receipt of invoice which will follow after the January 15th PCU value
adjustment. The initial lease payment will be pro-rated from the date of approval of
the Lease Capacity to the end of the year.
4. Payments shall be made directly to the City of St. Cloud Public Utilities and
deposited in the Lease Capacity Account. If payment is not received within the time
specified, the Review Committee may take action to revoke the lease.
Distribution of Lease Capacity Account Funds: The distribution of lease capacity
account funds will be made annually. Funds will be distributed to those Cities for which
an Unused Capacity determination has been made in proportionate to each City's share
of the Total Unused Capacity Pool. Distributions shall be made within 30 days after the
Lease Capacity Payments are due.
REMEDIES:
In addition to the remedies provided in this Agreement, and those normal remedies
provided by law for breach of contract, the parties specifically agree that this Agreement
may be enforced in a Court of competent jurisdiction by an action to require specific
performance.
Draft #13: February 8, 2008
COOPERATIVE DESIGN AND CONSTRUCTION AGREEMENT
BETWEEN THE CITIES OF ST. AUGUSTA, ST. CLOUD,
ST. JOSEPH, SARTELL, SAUK RAPIDS, AND WAITE PARK
Relating to:
Participation by St. Augusta, St. Cloud, St. Joseph, Sartell, Sauk Rapids, and Waite
Park in the costs to design and construct Phase 1 Upgrade, Expansion and
Rehabilitation Improvements at the St. Cloud Wastewater Treatment Facility
(WWTF)
THIS AGREEMENT is made and entered into by and between the City of St.
Augusta, Minnesota, acting by and through its City Council, hereinafter referred to as
"St. Augusta," the City of St. Joseph, Minnesota, acting by and through its City Council,
hereinafter referred to as "St. Joseph," the City of Sartell, Minnesota, acting by and
through its City Council, hereinafter referred to as "Sartell," the City of Sauk Rapids,
Minnesota, acting by and through its City Council, hereinafter referred to as "Sauk
Rapids," the City of Waite Park, Minnesota, acting by and through its City Council,
hereinafter referred to as "Waite Park," and the City of St. Cloud, Minnesota, acting by
and through its City Council, hereinafter referred to as "St. Cloud." The above-named
Cities shall hereinafter be collectively referred to as "the parties."
RECITALS
In 2004, representatives of the parties participated in a process to select a
consultant to provide professional services related to the expansion and rehabilitation of
the St. Cloud Wastewater Treatment Facility (WWTF). At the. conclusion of this process
the representatives recommended selection of Black & Veatch Corporation (B&V) to
provide facilities planning, design, bidding, and construction phase services. The St.
Cloud City Council subsequently approved a contract with B&V to provide professional
services in conjunction with the facilities planning process.
Following selection of B&V, representatives of the parties participated in a three-
year process to develop a Facilities Plan for the upgrade, expansion, and rehabilitation of
the WWTF. The completed Facilities Plan has been approved by the parties and has been
submitted to the Minnesota Pollution Control Agency for review and approval.
The Facilities Plan provides for the upgrade, expansion and rehabilitation of the
WWTF in two phases, with the Phase 1 work to commence after necessary State
authorizations are received, tentatively scheduled for 2009 (hereinafter referred to as the
"Phase 1 Improvements"), and for Phase 2 work to commence in 2017, or as warranted.
The purpose of this Agreement is to set forth the responsibilities of the parties
with respect to implementation of the Phase 1 Improvements to the WWTF, including the
cost allocations to be paid by each of the parties and the manner of payment.
Draft #13: February 8, 2008
The estimated cost of the Phase I Improvements, and the distribution of those costs, as set
forth in the Facilities Plan, are as follows:
Table 1
Estimated Phase 1 WWTF Improvement Costs
City Design Cost Construction
Cost Total
Improvement
Cost % of Total
Sartell $786,518 $13,269,883 $14,056,401 27.64
St. Cloud $980,613 $16,544,619 $17,525,232 34.47
Sauk Ra ids $341,032 $5,753,798 $6,094,830 11.99
St. Jose h $296,972 $5,010,424 $5,307,396 10.44
St. Au usta $213,274 $3,598,302 $3,811,576 7.50
Waite Park $226,591 $3,822,974 $4,049,565 7.96
TOTALS $2,845,000 $48,000,000 $50,845,000 100.00
Table 2
Estimated Cost Allocations for the Phase 1 Construction Costs
City Upgrade Cost Expansion
Cost Rehabilitation
Cost Total
Construction
Cost
Bartell $2,420,055 $8,265,397 $2,584,432 $13,269,883
St. Cloud $9,231,757 $0 $7,312,862 $16,544,619
Sauk Ra ids $1,727,039 $2,397,985 $1,628,774 $5,753,798
St. Jose h $979,022 $2,602,069 $1,429,332 $5,010,424
St. Au usta $418,009 $2,449,006 $731,286 $3,598,302
Waite Park $1,155,026 $1,479,608 $1,188,340 $3,822,974
TOTALS $15,930,909 $17,194,066 $14,875,025 $48,000,000
The estimated cost allocations shown in Table
population and flow projections previously determined
Facilities Plan, and on year 2010 cost estimates.
AGREEMENT
It is, therefore, mutually agreed as follows:
1 and Table 2 are based on the
by each City as set forth in the
ARTICLE I -DESIGN
St. Cloud shall enter into an agreement with B&V to provide professional services
in conjunction with the design of the Phase 1 Improvements at the WWTF as identified
under the Facilities Plan process as previously adopted and approved by the parties. St.
Cloud shall perform all acts and functions necessary to cause said design work to be
completed in a timely and satisfactory manner in accordance with local and State MPCA
requirements, and the parties' timetable for completion of the Phase I Improvements. It
is anticipated that the design phase work will commence in January 2008, and will be
completed by December 31, 2008.
Draft #13: February 8, 2008
Prior to the commencement of design phase work, all parties shall deposit with
the City of St. Cloud an amount equal to their respective estimated cost shares for design
phase work as shown in Table 1 for the Phase I Improvements. St. Cloud shall deposit
such funds in an interest bearing account (Design Phase Account). St. Cloud shall pay all
design phase costs from this account. Upon completion of the design phase work St.
Cloud shall prepare a final tabulation of design phase costs and cost-shares based on the
actual design phase costs incurred. If the amount of funds including accrued interest is
found to be in excess of the final design phase costs, then St. Cloud shall distribute the
surplus funds to the parties in proportion to each parties contributions to the Design Phase
Account. If the amount of funds, including accrued interest, is found to be less than the
final design phase costs, then St. Cloud shall invoice the parties for their respective
proportionate share of the shortfall. In this event, the parties agree to pay their
proportionate share of the shortfall to St. Cloud within 30 days of receipt of the invoice.
The estimated cost of the design phase work for the Phase I Improvements at the WWTF
is $2,845,000. St. Cloud shall enter into an agreement with B&V which contains a not to
exceed clause for the design phase consistent with the foregoing estimate.
Concurrently with the design phase work, St. Cloud shall prepare new Sewer Use
Agreements (SUA) to replace the SUAs and Addenda that currently exist between St.
Cloud and the other parties. The new SUAs are subject to individual review, negotiation,
and approval by each of the parties. A city reviewing a draft new SUA shall be
responsible for the city's cost of review and negotiation, including each city's respective
individual costs for legal counsel. The new SUAs, subject to negotiation, may
incorporate all or portions of the provisions of the existing SUAs and Addenda, and may
include new conditions as negotiated with the individual city participants or as required
by current State and Federal regulations. The new SUAs shall include, subject to review
and negotiation, all or portions of the draft Pool Capacity provisions previously
developed by the St. Cloud Wastewater Advisory Commission (SCAWAC). In
developing the new SUAs, the parties shall consider and may include provisions based
upon the Facility Plan dated May 2006 for the WWTF. When completed, the new SUAs
shall be submitted to the parties individually for review and approval by the respective
City Councils of the parties. The new SUAs shall be fully approved by all parties to this
agreement and executed before award of the construction contract as described in Article
II below. The parties shall not unreasonably withhold approval of the new SUAs.
ARTICLE II -CONSTRUCTION BY ST. CLOUD
Following completion and approval of -the design phase work, receipt of all
necessary local(ie. SUAs) and state authorizations and permits, including authorization
from the MPCA, and the approval of new SUAs with each individual city participant, St.
Cloud intends to let a contract for construction of the Phase 1 Improvements.
St. Cloud is willing to finance the cost of construction of the Phase 1
Improvements under the terms and conditions set forth hereinafter.
St. Cloud shall, in conjunction with the award and administration of the
construction and engineering contracts for the WWTF Phase 1 Improvements, do and
perform the following:
Draft #13: February 8, 2008
(Item lA) Duly advertise, receive bids, tabulate bid results and prepare a
recommendation to award the contract to the lowest responsible bidder.
(Item 1B) Distribute the bid results and the recommendation to award the
contract to all parties for review and approval.
(Item 1 C) The parties shall be asked to demonstrate concurrence with the
decision to award the contract through adoption of appropriate "Resolutions of Support"
by their respective City Councils. The parties shall not unreasonably withhold such
approval.
(Item 1 D) After approval by all parties, St. Cloud shall award the contract.
(Item 2) Direct and cause the supervision and inspection of all construction
and engineering functions necessary for the satisfactory construction of said Phase 1
Improvements; and
(Item 3) Make such changes in plans or in the character of the work for said
Phase 1 Improvements which are reasonably necessary to cause said Improvements to be
in all things performed and completed in a satisfactory manner, in accordance with
MPCA standards and other applicable codes and regulations, and to that end enter into
any change orders or supplemental agreements for the performance of any extra work or
work occasioned by any necessary, advantageous or desirable changes in plans. However,
SCAWAC will establish during the design phase of the project a Wastewater Treatment
Facility Project subcommittee whose purpose is to facilitate project communication and
develop procedures for providing comments and recommendations on change orders; and
(Item 4) Do and perform all other acts and functions necessary to cause said
Phase 1 Improvements to be completed in a satisfactory manner in accordance with
MPCA requirements and other applicable codes and regulations.
ARTICLE III- FUNDING OF CONSTRUCTION COSTS
St. Cloud agrees to finance the cost of the Phase I construction improvements
under the following terms and conditions:
(Item 1) Each party shall be responsible for its proportionate share of costs
related to the construction of the Phase 1 Improvements including construction
engineering, testing, inspection and the cost of any change orders or supplemental
agreements which may be necessary to complete the construction and also including the
cost of any settlements of claims made with St. Cloud's contractors in connection with
such construction.
(Item2) The estimate of Phase 1 construction costs and cost allocations, as
shown in Table 1, shall be updated following completion of the design phase work and
again following receipt of construction bids. A final schedule of construction costs and
cost allocations will be prepared following completion of construction.
(Item 3) Prepay Option -Each parry shall be given an opportunity to pre-
pay all or a portion of its estimated cost share. Parties who intend to pursue this option
Draft #13: February 8, 2008
shall notify St. Cloud of their intentions, including the dollar amount that they intend to
prepay, at least 90 days prior to the date that construction funding is scheduled to be put
in place. Pre-pay amounts shall be due and payable to St. Cloud on the same date that the
construction bond is scheduled, to be sold and/or construction loan is scheduled to be
established.
(Item 4) St. Cloud agrees to secure construction phase funding for Phase 1
construction needs, less any prepay amounts received from the parties. Towards this end
St. Cloud shall pursue financing via abelow-market rate loan under the revolving fund
program far public wastewater facilities administered by the Minnesota Public Facilities
Authority (PFA) together with the Minnesota Pollution Control Agency (MPCA). St.
Cloud shall use said revolving loan fund to the extent that it may be available and
advantageous. St. Cloud shall pursue and apply, to the extent available, any grant dollars
available -from the state and federal governments for projects of this nature. St. Cloud
shall issue a Utility Revenue Bond to finance any costs not covered by the revolving loan
and grant dollars. Debt service on construction funding shall be structured over a 20-year
period.
(Item 5) Debt Service Payments -Each party shall be responsible for the
repayment of its proportionate share of construction phase funding to be secured by St.
Cloud, including a proportionate share of bond issuance costs, finance fees and expenses
and net interest costs. Debt service payments to St. Cloud shall be made in semi-annual
installments over a 20-year period. St. Cloud shall calculate and distribute a schedule of
payments at the time that the construction phase funding is put in place. This schedule
may be revised upon completion of construction if necessary to account for differences, if
any, between the estimated and final schedule of construction phase costs and debt.
(Item 6) Acceptance -After approval by all parties of the construction
contract, it is understood and agreed that the aforesaid computation and determination of
the amount due from the parties for construction of the Phase I Improvements shall be
final, binding and conclusive. It is further agreed that the acceptance by St. Cloud of the
completed construction work shall be final, binding and conclusive upon the parties as to
the satisfactory completion of said work.
ARTICLE IV -GENERAL PROVISIONS
Section A. Governing Law
This Agreement is made pursuant to, and shall be construed in accordance with
the laws of the State of Minnesota.
Section S. Disputes and Remedies
The parties agree as follows:
a. Negotiation. When a disagreement over interpretation of any provision of this
Agreement shall arise, the parties in dispute will direct staff members, as they
deem appropriate, to meet at least one (1) time at a mutually convenient time
and place to attempt to resolve the dispute through negotiation.
Draft #13: February 8, 2008
b. Mediation/Arbitration. When the parties to this Agreement are unable to
resolve disputes, claims or counterclaims, or are unable to negotiate an
interpretation of any provision of this Agreement, the parties hereto may
mutually agree in writing to seek relief by submitting their respective
grievances to mediation and/or binding arbitration.
c. Adiudication. When the parties to this Agreement are unable to resolve
disputes, claims or counterclaims, are unable to negotiate an interpretation of
any provision of this Agreement or are unable to agree to submit their
respective grievances to mediation or binding arbitration, or such action has
not otherwise resolved the matter in dispute, either party to the dispute may
seek relief through initiation of an action in a court of competent jurisdiction.
In addition to the remedies provided for in this Agreement and any other
available remedies at law or equity, in the case of a violation, default, or
breach of any provision of this Agreement, the non-violating, non-defaulting,
or non-breaching party may bring an action for specific performance to
compel the performance of this Agreement in accordance with its terms.
Section C. Modification/Amendment
This Agreement shall not be modified, amended, or altered except in writing duly
executed and adopted based upon the resolution of the participating city councils.
Section D. Severabilitv
In the event that any provision of this Agreement is determined and adjudged to
be unconstitutional, invalid, illegal or unenforceable by a court of competent jurisdiction,
the remaining provisions shall remain in full force and effect, and the parties hereto shall
negotiate in good faith and agree to such amendments or modifications of or to this
Agreement or other appropriate actions as shall, to the maximum extent practicable in
light of such determination, implement and give effect to the intentions of the parties
hereto.
Section E. HeadinES and Caations
Headings and captions are for convenience only and are not intended to alter any
of the provisions of this Agreement.
Section F. Scone of Agreement
The terms, covenants, conditions and provisions of this Agreement do not
constitute the entire agreement between the parties as they remain subject to subsequent
approvals of the parties with respect to new SUAs and the award of a construction
contract for the Phase I Improvements.
Section G. Agreement Anaroval
Before this Agreement shall become binding and effective, it shall be approved by
resolution of the City Councils of each of the parties.
Draft #13: February 8, 2008
Section H. Termination
This Agreement shall ~be of indefinite term. It shall be terminated only by the
mutual consent of the parties given in writing.
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 Seal)
(City Seal)
(City Seal}
(City Seal)
CITY OF ST. AUGUSTA
By:
Mayor
Date:
By:
City Clerk
Date:
CITY OF ST. CLOUD
By:
Mayor
Date:
By:
City Clerk
Date:
CITY OF ST. JOSEPH
By:
Mayor
Date:
$y:
City Clerk
Date:
CITY OF SARTELL
By:
Mayor
Date:
By:
City Clerk
Date:
Draft #13: February 8, 2008
CITY OF SAUK RAPIDS
(City Seal)
By:
Mayor
Date:
By:
City Clerk
Date:
(City Seal)
CITY OF WAITS PARK
By:
Mayor
Date:
By:
City Clerk
Date:
Draft #13: February 8, 2008
S A M P L E
Resolution No. 2007 -
RESOLUTION AUTHORIZING EXECUTION OF
A COOPERATIVE AGREEMENT TO PROVIDE FOR THE DESIGN AND
CONSTRUCTION OF PHASE 1 IMPROVEMENTS AT THE ST. CLOUD
WASTEWATER TEAMENT FACILITY
BE IT RESOLVED, that the City of enter into the attached
agreement to provide for payment to the City of St. Cloud for a proportionate share of the
costs to design and construct Phase 1 upgrade, expansion and renovation improvements
at the St. Cloud Wastewater Treatment Facility.
BE IT FURTHER RESOLVED, that the proper City officers are hereby
authorized and directed to execute such agreement.
CERTIFICATION
State of Minnesota
County of
City of
I hereby certify that the above is a true and correct copy of a resolution duly
passed, adopted and approved by the City Council of said City of on
200&, as shown by the minutes of said meeting in my possession.
(SEAL)
Ayes
City Clerk
City of _
Nays