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IV.5. Joint Cooperative Agreement with City of Minnetonka and the Metropolitan Council; ElverumOctober 20, 2020 Council Report 2020-081 JOINT COOPERATIVE AGREEMENT WITH THE CITY OF MINNETONKA AND THE METROPOLITAN COUNCIL Proposed Action Staff recommends adoption of the following motion: Move to approve the Joint Cooperative Agreement with the City of Minnetonka and Metropolitan Council related to Shady Oak South Pond. With this motion, the agreement will be executed. Overview The Shady Oak LRT Station is located on the border of Hopkins and Minnetonka. Today the area is made up of a variety of properties, with industrial and low-density development prominent. The area is poised for redevelopment from a market perspective, but underlying conditions make it difficult. The two cities have come together with a shared redevelopment vision and feel it is important to realize a more active station area for both economic and safety reasons. Throughout the course of designing the Shady Oak LRT Station, staff has attempted to preserve and incentivize redevelopment opportunity within the area. Towards that goal, a design that moves the storm water treatment area away from the immediate station area and adds capacity for regional storm water treatment has been developed. The cost of infrastructure that benefits private development cannot be paid for by the SW LRT project and must be paid for by the benefiting cities. Most of the benefiting regional treatment occurs within the City of Minnetonka so in an effort to simplify the contractual obligations to the Met Council for the change in project scope, Minnetonka has agreed to front the cost of the change order. Hopkins will reimburse Minnetonka as development occurs. Primary Issues to Consider • What is the background to this agreement? • What are the terms of the agreement? Supporting Information • Joint Cooperative Agreement Regarding Shady Oak South Pond • Maps: Project Contributing Area and Private Contributing Area ___________________________ Kersten Elverum Director of Planning & Development Financial Impact: $__0__________Budgeted: Y/N ____ Source: ________________ Related Documents (CIP, ERP, etc.): _______________________________________ Notes: _______________________________________________________________ Council Report 2020-081 Page 2 Analysis of the Issues • What is the background to this agreement? In 2017, staff began negotiations with the Metropolitan Council’s Southwest Project Office (SPO) regarding a proposed storm water management pond for the Shady Oak Station area. The initial plan for the station placed the storm water management pond in the center of the proposed redevelopment area that was identified in the Shady Oak Redevelopment Strategy, adopted by Hopkins and Minnetonka in 2016. Minnetonka and Hopkins staff met with the SPO to discuss moving the pond to another area that would be less impactful on redevelopment for Minnetonka and Hopkins. The SPO determined it was able to move the treatment pond to the area south of the platform, near the proposed Rail Support Facility, if the cities would be willing to contribute to the cost of constructing an elliptical pipe to the new pond to serve approximately 11.2 acres within the Shady Oak Station redevelopment area (development contributing area). The development contributing area that is located within Hopkins is currently owned by the Met Council but intended for future development. See the attached exhibit depicting the 11.2 acre area. • What are the terms of the agreement? Under the proposed Joint Cooperative Agreement, the cities would share in the cost of upgrading the storm water pipe ($146,988.28) based upon the storm water benefit that each city would receive with the upgraded pipe (roughly 65% in Minnetonka and 35% in Hopkins.) The basic premise of the agreement is that Minnetonka would pay for the initial cost to upgrade the pipe and Hopkins would repay Minnetonka, proportionately, as redevelopment occurs. It would be the City’s intention to charge a development fee to offset our cost. If no development occurs in Hopkins or if development in Minnetonka claims all of the benefit, Hopkins obligation to reimburse Minnetonka expires in 30 years after the determination of excess capacity. If approved, the cities will work with developers proposing new redevelopment projects in the Shady Oak Station area to utilize the available regional storm water treatment. The upsizing of the pipe allows redevelopment projects to access a more cost-effective method of treating storm water at the site. For example, the Birke, a 175-unit apartment building currently under construction in Minnetonka, must treat storm water on-site in an underground storage system. The cost to build the storage tank for this size of a project is approximately $450,000. If a similar project were proposed in the 11.2-acre area served by this agreement, the developer would pay the city roughly $34,450 for the treatment of a 2.5-acre site. Alternatives The City Council has the following options for this item: • Elect to approve the agreement as drafted. • Modify agreement and approve. • Continue for more information. • Elect not to enter into the agreement. JOINT COOPERATIVE AGREEMENT REGARDING SHADY OAK SOUTH POND This Joint Cooperative Agreement (Agreement) is made by and among METROPOLITAN COUNCIL, a political subdivision of the State of Minnesota (Council), CITY OF HOPKINS, a Minnesota municipal corporation (Hopkins) and CITY OF MINNETONKA, a Minnesota municipal corporation (Minnetonka). This Agreement pertains to the Council’s proposed Shady Oak South Pond (Pond), to be constructed as part of Council’s Southwest Light Rail Transit (SWLRT) Project, referred to hereinafter as the “Project.” Recitals and Statement of Purpose A. Council has undertaken the Project, an approximately 16-mile extension of the METRO Green Line which will operate from downtown Minneapolis through the cities of St. Louis Park, Hopkins, Minnetonka and Eden Prairie. B. Council has obtained a permit from Nine Mile Creek Watershed District (NMCWD), permit no. 2016-88 (Permit), for the portions of the Project that lie within the boundaries of NMCWD. Council has entered into a Maintenance Agreement with NMCWD dated November 15, 2017, Metropolitan Contract No. 171041, as amended, regarding the Council’s obligations to maintain wetland buffer, stormwater management facilities and waterbody crossings for the Project, pursuant to NMCWD permit no. 2016-88 (Maintenance Agreement). C. For purposes of this Agreement, the term “Permitted Facilities” refers to all stormwater management facilities covered by the Permit. D. One of the Permitted Facilities is a proposed stormwater pond on real property located at 610 16th Avenue South in the city of Hopkins, adjacent to the station known as the Shady Oak Station (the “Pond”). The proposed location of the Pond is depicted on Attachment 2. E. The Pond will provide stormwater treatment for approximately 23.7 acres of land currently owned by Council (the “Project Contributing Area”). The original plans for the Project call for the installation of a 60-inch pipe to convey stormwater from the Project Contributing Area to the Pond. The Project Contributing Area is depicted in Attachment 1. F. Council has estimated that the Pond and SWLRT project will have more capacity than will be necessary to meet NMCWD’s permitting requirements (with respect to rate, and retention) for the Project Contributing Area (“Excess Capacity”), presuming redevelopment of the Development Contributing Area (as defined below) in a manner that results in 80 percent impervious cover. A specific quantity of stormwater volume retention for the Development Contributing Area is not required because the NMCWD engineer has concurred in the determination that the Development Contributing Area is “restricted,” for purposes of application of the NMCWD Stormwater Management Rule. The specific amount of Excess Capacity cannot be determined until the Permitted Facilities have been constructed and field verified, because infiltration rates must be determined based on post-construction conditions. The designed Excess Capacity is expected to be sufficient to provide for required rate control and water-quality treatment for the approximately 11.2-acre area located within the cities of Minnetonka and Hopkins (the “Development Contributing Area”), that could potentially use the Pond to satisfy NMCWD stormwater- management criteria for redevelopment in the Development Contributing Area. The Development Contributing Area is depicted in Attachment 2. The Development Contributing Area that is located within Hopkins is currently owned by the Council but is intended for future development. G. The originally-planned 60-inch stormwater pipe is not adequate to serve both the Project Contributing Area and the Development Contributing Area. Council has determined that a 58-inch by 91-inch horizontal elliptical pipe (Elliptical Pipe) is necessary to serve both the Development Contributing Area and the Project Contributing Area. H. Council has negotiated a change order to the Project contract, to provide for the construction of the Elliptical Pipe in lieu of the 60-inch stormwater pipe, at an additional cost of $146,988.28 (“Added Cost”). I. Council, Hopkins and Minnetonka desire to enter into this Agreement in order to address ownership and related responsibilities for the Pond and Elliptical Pipe, payment of the Added Costs, and allocation of Excess Capacity in the Pond. Terms of Agreement 1. Recitals incorporated. The recitals above are incorporated into this Agreement by reference. 2. Ownership and Maintenance Responsibilities. Council shall be the owner of the Pond and the Elliptical Pipe. Council represents to and agrees with Hopkins and Minnetonka that Council shall be solely responsible for the construction, operation, maintenance, repair and replacement of the Pond and Elliptical Pipe. Council will at all times comply with the requirements of NMCWD permit no. 2016-88 and the Maintenance Agreement with respect to the Pond and Elliptical Pipe. Council agrees that it will allow future connections to the Elliptical Pipe, as allowed per paragraph 5.b. herein and any other applicable requirement under this Agreement, by owners of property within the Development Contributing Area, at no cost, charge, fee or assessment to the connecting property owner or to Hopkins or Minnetonka. 3. Added Costs; Minnetonka’s Payment to Council. Minnetonka agrees to pay the Added Costs to Council as provided in that certain Subordinate Funding Agreement (Council No. 14I067G) by and between the Council and the City, approved contemporaneously with Council and Minnetonka’s approval of this Agreement. 4. Determination of Excess Capacity. The exact Excess Capacity of the Pond cannot be determined until the Pond is constructed and as-built drawings are completed. The parties understand and agree that whether Excess Capacity exists and the amount of Excess Capacity that exists cannot be determined until completion of construction. After construction is completed, Council agrees to determine the amount of Excess Capacity of the Pond and to submit documentation of its analysis and determination to NMCWD for review and concurrence. Council agrees to use due diligence to obtain the NMCWD’s concurrence in Council’s determination of Excess Capacity and agrees to provide Hopkins and Minnetonka of all documentation submitted to NMCWD. 5. Allocation of Excess Capacity. With respect to future use of Excess Capacity, the parties agree as follows: a. Council agrees to make any and all Excess Capacity available to Hopkins and Minnetonka, collectively, for use by properties within the Development Contributing Area (as that area is determined under paragraph 4 above). b. Properties within the Development Contributing Area may submit applications for land use approval to the local zoning authority (Hopkins or Minnetonka, as appropriate) and, as part of those applications, may request connection to the Elliptical Pipe. Any connection to the Elliptical Pipe will also require an application to NMCWD for a permit. c. Nothing in this Agreement creates any rights in favor of any person or entity that is not a party to this Agreement; specifically, this Agreement does not entitle any owner of property within the Development Contributing Area to connect to the Elliptical Pipe or to enforce any provision of this Agreement. d. Nothing in this Agreement entitles either Hopkins or Minnetonka individually to any specified portion of the Excess Capacity. Hopkins and Minnetonka understand and agree they will consider applications for connection to the Elliptical Pipe on a first-come-first served basis, as development proposals are submitted and in accordance with the following process: When an application is submitted to either city for the development or redevelopment of a property within the Development Contributing Area, the city receiving the application will notify the other city that the application is pending. The cities will mutually develop and share a spreadsheet that maintains a running balance of Excess Capacity as originally determined under paragraph 4 above, minus Excess Capacity utilized by developments that have received final approvals. The spreadsheet will show an estimate of the Excess Capacity that would be utilized by any development application that has been received but not yet finally approved, for planning purposes, but allocations of Excess Capacity will require final project approval. e. At all times, the extent and availability of Excess Capacity will be determined based upon NMCWD’s permit-approval determinations. When NMCWD determines that the Excess Capacity has been fully exhausted, no further connections to the Elliptical Pipe will be allowed. 6. Reimbursement to Minnetonka of Added Costs. Hopkins and Minnetonka will each adopt land use policies or ordinances, as each deems appropriate for its jurisdiction, to require that approved land use applicants pay a development fee equal to their proportionate share of the Added Costs. The amount of the development fee must be calculated as follows for all developments with 80 percent or less of total land area as impervious surface: $146,988.28 divided by the total number of acres in the Development Contributing Area (as that area is determined under paragraph 4 above) times 1.05 (5% administrative fee). The five percent administrative fee is attributable to developments in both Hopkins and Minnetonka, for the purpose of reimbursing Minnetonka for its costs in providing up-front financing and administration of the Added Costs. For example only, if the final Development Contributing Area is 11.2 acres, the development fee will be calculated as: $146,988.28 ÷ 11.2 = $13,123.95 x 1.05 = $13,780.15 per acre. If a development has greater than 80 percent impervious surface area, the development fee will be increased by 10 percent for each 5 percent incremental increase in impervious surface area; for example, a development with 85 percent impervious surface area would pay a fee of $15,158.17 (13,780.15 x 1.1). Each city is responsible for collecting the development fee from the land use applicant in the manner it deems appropriate. Hopkins agrees to pay Minnetonka the full amount of the development fee within 30 days after Hopkins provides final approval of the application to which the fee is related, regardless of whether Hopkins has received payment from the land use applicant. Hopkins reserves the right to charge a storm water fee or seek reimbursement from the land use applicant or property owner. 7. Revised development fee; city responsibilities. Hopkins and Minnetonka recognize that, based on the development fee formula in paragraph 6 above, any decrease in the amount of Excess Capacity (based on the post-construction determination to be made under paragraph 4 above) will reduce the acreage of the Development Contributing Area, which will result in an increase in the development fee to be collected. In addition, Hopkins and Minnetonka recognize that, if the Excess Capacity is materially less than estimated, it is possible that the amount of the development fee as calculated under paragraph 6 above could be financially unrealistic for developers, when compared to the cost of constructing on-site stormwater systems. In that event, Hopkins and Minnetonka agree to cooperate in good faith in establishing a development fee that is financially viable, and each city will be responsible for the difference between the revised development fee and the development fee determined under paragraph 6 above. Hopkins and Minnetonka also recognize that the development may not occur for several years. 8. Term; Termination of Certain Rights and Obligations. The term of this Agreement shall be perpetual in nature, except that all rights and obligations of the parties that are contained in paragraphs 6 and 7 of this Agreement shall terminate on the earlier of: (a) 30 years after the date that Council provides the notice of Excess Capacity as required in paragraph 4 above; or (b) when the Excess Capacity has been exhausted, as determined by the NMCWD, and all development fees for the developments that are utilizing the Excess Capacity have been collected and remitted to City of Minnetonka as provided in paragraph 6. For the sake of clarity, if the parties’ rights and obligations in paragraphs 6 and 7 of this Agreement terminate, Hopkins shall have no obligation to reimburse Minnetonka for any additional share of the Added Costs. Notwithstanding the foregoing, nothing contained in this Agreement shall preclude the cities from establishing and requiring land use applicants or property owners to pay development fees at any point in time after the rights and obligations in paragraphs 6 and 7 terminate, in accordance with then-current state or local laws and regulations. 9. Notice. The parties agree that any notice made pursuant to this Agreement must be sent to all parties by: a. Email, as long as the recipient acknowledges receipt by e-mail or otherwise in writing; or b. Certified mail. 10. Dispute Resolution. A dispute resolution process shall be used for any unresolved issue, dispute or controversy between the parties before any legal remedies are exercised. The dispute resolution process contains a three-level dispute resolution ladder that escalates a dispute from the project management level through the executive management level. The City of Minnetonka is represented from level 1 to 3 in the following order: City Engineer, Public Works Director, and City Manager. The City of Hopkins is represented from level 1 to level 3 in the following order: City Engineer, Public Works Director, and City Manager. The Council is represented from level 1 to 3 in the following order: Deputy General Manager, General Manager, and Regional Administrator. At each level, representatives of the Parties shall meet and continue to explore resolution until either party determines, in good faith, that effective resolution is not possible at the current level and notifies the other parties that the process is elevated to the next level. If any party make such a determination at any point during issue resolution at level 3, then the dispute resolution process has been exhausted. 11. Force Majeure. No party will be responsible to any other party’s failure to perform or a delay in performance under this Agreement where such delay or failure to perform is caused by events beyond the performing party’s reasonable control, including but not limited to unusually severe weather, fire, floods, or other acts of God, statutory and regulatory changes, labor disputes, acts of war or terrorism, or public health emergencies. 12. Governing Law. This Agreement is entered into and under the laws of the State of Minnesota and shall be interpreted in accordance therewith. 13. Liability. To the extent authorized by law each party is responsible only for its own acts and the results of its acts. The liability of the Council and the Cities is governed by the provisions of Minnesota Statutes, Chapter 466. 14. All parties are authorized to enter into this Agreement and have caused this Agreement to be executed by their duly authorized representatives on the dates indicated below. [signature pages follow] Signature page – Metropolitan Council METROPOLITAN COUNCIL By: Its Date: ___________________ Signature page – City of Hopkins CITY OF HOPKINS By: ________________________________ Its Mayor By: ________________________________ Its: City Manager Date: ______________________________ Signature page – City of Minnetonka CITY OF MINNETONKA By: ________________________________ Its Mayor By: ________________________________ Its: City Manager Date: ______________________________ ATTACHMENT 1: PROJECT CONTRIBUTING AREA ATTACHMENT 2: DEVELOPMENT CONTRIBUTING AREA ¯Oct, 11 2019 1:21 PM K:\02171-010\GIS\Maps\OMF\2018-05-14 NO OMF Analysis\2018-10-29\02171-010 Shady Oak Station\02171-010 Shady Oak Station.aprx By: lwheelerShady Oak South Pond Project Contributing Area Attachment 1 DATE: 10/11/2019 0 50 100 150 20025Feet Legend SWLRT Alignment Project Contributing Area Shady Oak South Pond 1 inch = 200 feet ¯Oct, 11 2019 1:23 PM K:\02171-010\GIS\Maps\OMF\2018-05-14 NO OMF Analysis\2018-10-29\02171-010 Shady Oak Station\02171-010 Shady Oak Station.aprx By: lwheelerShady Oak South Pond DATE: 10/11/2019 0 50 100 150 20025Feet Legend SWLRT Alignment Private Contributing Area Shady Oak South Pond 1 inch = 200 feetDevelopment Contributing Area Attachment 2