CR 2014-037 Approve 1st Amendment to Cooperative Agreement between City of Hopkins and Minnehaha Creek Watershed District - Cottageville Park Stormwater Management and Park ImprovementsCITY OF
I*
NOPKINS
March 28, 2014
Council Report 2014-037
Approve 1St Amendment to Cooperative Agreement between City of Hopkins and Minnehaha Creek
Watershed District — Cottageville Park Stormwater Management and Park Improvements
Proposed Action.
Staff recommends adoption of the following motion: Move that Council authorize the Mayor and City
Manager to sign the 1 st amendment to the Cooperative Agreement between the City of Hopkins and
Minnehaha Creek Watershed District for Cottageville Park Stormwater Management and Park
Improvements.
Overview.
In 2010, the City approved the Cooperative Agreement with the MCWD which described a collaborative
effort to achieve the goals of expanding and enhancing Cottageville Park by creating open green spaces
with connectivity to Minnehaha Creek. The parties' obligations under the cooperative agreement were
subject to MCWD purchase of properties adjacent to Cottageville Park, specifically 427/429 Blake Road.
The City of Hopkins obligations included the design, construction and maintenance of stormwater
management facilities. The City hired Cuningham Group to complete the design work. Cuningham
completed the Cottageville Park community engagement & master plan, feasibility report and some
preliminary design. Since, MCWD applied for and received a $483,000 State grant to assist in funding
the improvements. They have requested to become the lead agency for preparing the final construction
plans for the site improvements and stormwater management facilities. Hopkins staff concurs as this
change will facilitate MCWD staff and Board review/approval and, hence, accelerate the project
schedule. This change requires a corresponding amendment to the cooperative agreement wherein the
City of Hopkins will now reimburse MCWD for design and construction. The city's overall funding
obligation is actually reduced due to the State grant funds. The City Attorneys' office has reviewed and
approved the proposed amendment.
Primary Issues to Consider.
• Description of significant revisions included in the 1 st amendment
• Project schedule & funding
Supporting Information
• Proposed Lease Amendment No
• p ept im ovement plan
Steven J. Stadler
Public Works Director
Financial Impact: _Budgeted:
Related documents (CIP, ERP, etc.):
Notes:
Council Report 2014-037
Page 2
Analvsis of Issues
• Description of significant revisions included in the 1St Amendment
- Hopkins agrees to reimburse the MCWD for design and construction
- MCWD will maintain native vegetation and buffer zone improvements
• Project schedule & funding
Schedule
- April 10: MCWD Board Approves Amendment to Cooperative Agrmt, Orders Improvement Project
and authorizes consultant contract
- Late April: City Open House
- May 13: Hopkins Work Session 90% design review
- May 20: Hopkins City Council approves final design/authorization to bid project
- May 22: MCWD Board approves final design/authorization to bid project
- June, date TBD: Open Bids
- June 26: MCWD Award contract
- July 14 — October 15: Construction
Funding
Estimated Phase I cost: $1.4M (includes stormwater, buffer area, education, other park features)
Funding breakdown:
State Grant funds: ........... $442,000
City Storm Sewer Funds: $750,000
City Park Imprvt Funds: ... $208,000
TOTAL........................$1,400,000
Park Improvement Fund for play equipment = $200,000
FIRST AMENDMENT to
COOPERATIVE AGREEMENT
Minnehaha Creek Watershed District and City of Hopkins
Cottageville Park Stormwater Management and Park Improvement Project
This First Amendment ("Amendment") to the Cooperative Agreement
("Agreement") is made between the Minnehaha Creek Watershed District (MCWD),
a watershed district and political subdivision with powers at Minnesota Statutes
Chapters 103B and 103D, and the City of Hopkins ("Hopkins"), a home rule charter
city of the State of Minnesota (together, the "parties").
Recitals and Statement of Purpose
WHEREAS on September 10, 2010, the parties entered into the Agreement to
advance social, economic and environmental goals within the Minnehaha Creek
corridor;
WHEREAS pursuant to paragraphs 7 through 9 of the Agreement, the MCWD
acquired the real property located at 427-429 Blake Road (the "Property");
WHEREAS pursuant to the Agreement, Hopkins assumed the responsibility to
design, build and maintain water quality facilities located on the Property, at its
expense, in coordination with such park improvements it should choose to construct
in adjacent, city -owned Cottageville Park, and pursuant to terms in the Agreement
for the parties' collaboration in the overall site improvements;
WHEREAS in January 2014 the Board of Water and Soil Resources (BWSR), on
behalf of the State of Minnesota, awarded the MCWD a Clean Water Fund grant
from the State of Minnesota in the amount of $483,000, requiring a local match of
$150,000, to fund water quality and riparian improvements within the area described
in this Agreement in order to meet water quality goals for Minnehaha Creek;
WHEREAS the MCWD concludes that it is cost-effective and advances the MCWD's
public goals to extend the design for the water resource improvements to encompass
the parcel shown as Phase II on Exhibit C of this Amendment and riparian to
Minnehaha Creek (together, "MCWD Properties");
WHEREAS as conceptual design has proceeded, the parties have come to conclude
that the MCWD should assume responsibility to design and construct the water
resource improvements on the MCWD Properties;
WHEREAS the parties concur that in the interest of an integrated design and
construction efficiencies, the MCWD's design and construction activity also should
extend onto the Cottageville Park property for the purpose of certain land grading,
trail construction and landscaping;
1
WHEREAS these circumstances require that the Agreement be amended to revise
the roles and responsibilities of the parties with respect to the design, construction
and maintenance of the improvements contemplated in the Agreement and the
funding of those improvements;
THEREFORE the parties agree that this Amendment is made for mutual valuable
consideration and is legally binding on each party pursuant to the terms herein.
Terms ofAmendtnent
A. Paragraph 2 of the Agreement is deleted and replaced by the following:
2. All notices or other communications under this Agreement shall be in
writing and shall be deemed to have been delivered on receipt in hand, by fax
or electronically at the addresses stated below, namely:
MCWD
Renae Clark
Projects Manager
MCWD
15320 Minnetonka Boulevard
Minnetonka MN 55345
rclarkkminnehahacreek. org
Hopkins
Steve Stadler
Director of Public Works
City of Hopkins
1010 First Street South 55343
Hopkins MN
sstadler&hopkinsmn.com
B. Paragraph 5 of the Agreement is deleted and replaced by the following:
5. A party's approval of a design prepared by or for the other party is not an
engineering certification of the design and the approving party specifically
disclaims any warranties or representations relative to the design or
functionality of the design. A party has no authority to select, or role in
selecting, the means, method or manner of performing any of the work or the
person or firm who will perform the work of or on behalf of the other party,
and is not liable for any amounts owed to such person or firm. Any right of a
party to review or approve a design, work in progress or constructed
improvement under this Agreement is solely for that party's own purposes of
ensuring that its public goals are met and accounting for funds expended.
Notwithstanding, the release and hold harmless of paragraph 14, and the
release, hold harmless and indemnification of paragraph 20b, are
undiminished by this paragraph.
C. Paragraphs 10 through 18 of the Agreement hereby are deleted and replaced by the
following paragraphs 10 through 18.
10. The MCWD, at its election, may design and construct water resource
improvements on the MCWD Properties, including but not limited to
stormwater management facilities and associated stormwater conveyances
("Facilities"), creek bank improvements including vegetated buffer areas and
native vegetation, structures and signage for public education and riparian
recreation, and related appurtenances (all together, the "Water Resource
Improvements"). The design will conform to the siting, performance,
vegetation and maintenance criteria contained in Exhibit A and the
Conceptual Master Plan that is Exhibit B to this Amendment, both attached
and incorporated herein. MCWD contracts for design and construction will
state that warranties run to both the MCWD and Hopkins. The MCWD may
phase the work at its discretion.
11. Hopkins will timely advise the MCWD of technical requirements for the
Facilities to be connected to and incorporated into the municipal stormsewer
system. The MCWD must secure Hopkins' approval of the 90 percent plans
and specifications for the Facilities, which Hopkins will not delay or
unreasonably withhold. Hopkins will timely process any MCWD permit
needed for the Water Resource Improvements, without permit review costs,
fee or financial assurance, and will timely communicate any local
requirements regarding traffic, disturbance or occupation of public ways, and
any other matters. The work will include an open cut in Lake Street to install
stormwater piping. Hopkins will communicate reasonable terms and
specifications for traffic control and restoration.
12. The MCWD will notify Hopkins of construction meetings concerning the
Facilities, which Hopkins may attend. The MCWD may issue change orders
and work change directives, subject to Hopkins concurrence in any change to
the Facilities that may materially affect operation of the municipal stormsewer
system or the cost or schedule to maintain the Facilities. For such a change,
the MCWD will notify Hopkins and provide Hopkins at least two full
business days to review and respond. If a proposed change order or work
change directive requires board of managers approval, the MCWD will
provide such notice at least two business days before board consideration.
Hopkins may have additional time, if its concurrence requires specific
engineering review. In such a case, Hopkins will exercise good faith and
diligence to respond as quickly as possible in recognition of the need to avoid
delay under the MCWD's contract(s) for the Water Resource Improvements.
Change order and work change directive concurrence may be exercised by the
city manager on behalf of Hopkins. Any contract delay cost resulting from
Hopkins contract change review will be shared equally by the parties.
13. The MCWD will notify Hopkins when the Facilities are installed and
before subsurface elements are covered. Hopkins will have three business
days to inspect the Facilities and to advise the MCWD in writing of any
concern that the Facilities materially diverge from the 90 percent plans and
specifications. When the Facilities are constructed, the MCWD will supply
Hopkins with record drawings and ownership of the Facilities will vest in
Hopkins. At that time Hopkins will hold harmless and release the MCWD
from all claims with respect to the design and construction of the Facilities.
3
14. In exchange for being released from its obligation under the Agreement to
fund the design and construction of stormwater management facilities on the
Property, and for the additional benefits to Hopkins from the improvements,
Hopkins agrees to reimburse the MCWD for all design contract costs
incurred by the MCWD after [date] and all construction contract costs
incurred by the MCWD for design and construction of the Water Resource
Improvements, beyond those costs that are reimbursed from grant funds. For
each payment the MCWD has made on a design or construction contract for
the Water Resource Improvements, it will have a right of reimbursement from
Hopkins. The MCWD will use best efforts first to obtain reimbursement from
grant funds up to the amount of the grant, and will invoice Hopkins no more
frequently than monthly. Hopkins will process invoices within 30 days. At its
request, Hopkins may have an accounting.
15. The parties will collaborate with respect to signage and other public
information. Each party retains the right to install and maintain signage or
otherwise engage in any public informational effort with respect to its
property, but will consult with the other party. Any public materials will
acknowledge the shared participation of the parties in the project.
16. The MCWD will maintain native vegetation, buffer zone improvements
and signage on the MCWD Properties, all in accordance with terms of the
grant agreement. Hopkins will maintain the Facilities in perpetuity in
accordance with Exhibit A and applicable requirements of its municipal
stormwater system (MS4) permit. Except as provided in the first sentence of
this paragraph, above, Hopkins will be responsible for day-to-day inspection
and maintenance of the combined MCWD-Hopkins public space comprising
Cottageville Park and the MCWD Properties, including but not limited to
sanitation, inspection for and addressing hazards resulting from events such
as severe weather, and public safety. Hopkins will prioritize inspection and
maintenance consistent with the parties' shared recognition that the site is
locally and regionally visible. The MCWD will be responsible for capital
replacement on the MCWD Properties.
17. If the MCWD believes that Hopkins is not meeting an obligation under
paragraph 16 with respect to the MCWD Properties, it will advise Hopkins in
writing and the parties will meet promptly and in good faith to review the
concern. Thereafter, if the MCWD is not satisfied, with 30 days' written
notice it may perform the deficient work itself and will be reimbursed by
Hopkins for the reasonable cost thereof.
18. When construction of the Water Resource Improvements is complete, the
MCWD will deliver to Hopkins an easement for filing in county land records
affording Hopkins all rights necessary for it to meet its inspection and
maintenance obligations under paragraph 16 ("Easement"). The easement
may contain reasonable conditions to protect the Water Resource
4
Improvements and otherwise to protect Minnehaha Creek and related water
resources from damage.
D. New paragraphs 20a through 20c are inserted into the Agreement as follows:
20. The MCWD's design and construction of the Water Resource
Improvements will encompass that part of Cottageville Park identified as
"Phase I - Hopkins Land" on the Design and Construction Phasing Plan
attached hereto as Exhibit C and incorporated herein ("Cottageville
Elements"). The MCWD's design will include a part of the Facilities, as well
as grading, surface treatment and landscaping, and will conform to Exhibit B.
The MCWD must secure Hopkins' approval of the 90 percent plans and
specifications for the Cottageville Elements, consisting of grading plans, site
trail layout and details/cross-sections, which Hopkins will not delay or
unreasonably withhold. Hopkins will timely process any MCWD permit
needed for the Cottageville Elements, without permit review costs, fee or
financial assurance, and will timely communicate any local requirements
regarding traffic, disturbance or occupation of public ways, and any other
matters. Hopkins will allow for ingress/egress and occupation of Cottageville
Park as necessary or convenient for construction. MCWD contracts for
design and construction of the Cottageville Elements will state that warranties
run to both the MCWD and Hopkins.
20a. The MCWD will notify Hopkins of construction meetings concerning the
Cottageville Elements, which Hopkins may attend. The MCWD may issue
change orders and work change directives, subject to Hopkins concurrence in
any change that would materially affect contract price or time, or the cost or
schedule to maintain the improvements. For such a change, the MCWD will
notify Hopkins and provide Hopkins at least two full business days to review
and respond. If a proposed change order or work change directive requires
board of managers approval, the MCWD will provide such notice at least two
business days before board consideration. Hopkins may have additional
time, if its concurrence requires specific engineering review. In such a case,
Hopkins will exercise good faith and diligence to respond as quickly as
possible in recognition of the need to avoid delay under the MCWD's
contract(s). Change order and work change directive concurrence may be
exercised by the city manager on behalf of Hopkins. Any contract delay cost
resulting from Hopkins contract change review will be shared equally by the
parties.
20b. The MCWD will notify Hopkins when the Cottageville Elements are
substantially completed. Hopkins will inspect the improvements without
undue delay and advise the MCWD in writing of any concern that the
improvements materially diverge from the 90 percent plans and specifications.
When the improvements are constructed, the MCWD will supply Hopkins
with final grades and ownership of the improvements will vest in Hopkins. At
that time Hopkins will hold harmless and release the MCWD from all claims
with respect to the design and construction of the Cottageville Elements, and
5
will indemnify the MCWD with respect to all liabilities, damages and costs
arising out of any third -party claim arising from the design, construction or
use of the Cottageville Elements.
20c. Hopkins will reimburse the MCWD for design and construction costs
that it incurs for the Cottageville Elements in the same manner as specified at
paragraph 14. Hopkins recognizes that a substantial part of these costs may
not be eligible for grant reimbursement.
E. Paragraph 20 is renumbered as paragraph 20d and revised to read as follows:
20. Hopkins intends to undertake recreational, park or other improvements to
Cottageville Park, including refinements to the area encompassed by the
Cottageville Elements, improvements to that part of Cottageville Park not
labeled as "Phase I - Hopkins Land" on Exhibit C (including the area
indicated on Exhibit C as "Out Parcel," which presently is under private
ownership), and a redesign of the right-of-way north of Cottageville Park at its
discretion and sole cost. Any such improvements will be consistent with
Exhibit B.
F. Paragraph 24 is deleted and replaced by the following:
24. The parties will collaborate closely during design of the Water Resource
Improvements and park improvements described in this Agreement. The
parties' efforts will be directed to produce a design that best integrates their
public goals for the contiguous area comprising the Cottageville Park parcel,
the District Properties, and any adjoining parcels owned by either party that
are incorporated into the design for the improvements. Specifically, but not
exclusively, the District owns a parcel southeast of Lake Street, northeast of
Minnehaha Creek and riparian to the creek, as shown in Exhibit B, that may
be suited for a public canoe launch and otherwise to augment the Water
Resource Improvements.
G. Paragraph 27 is deleted, and paragraphs 28 and 29 are deleted and replaced by the
following:
28. Only contractual remedies are available for the failure of a party to fulfill
the terms of this Agreement. The parties agree that the MCWD's acquisition
of the Property; its assumption of relocation, demolition and other costs
related to 427-429 Blake Road; and its siting and construction of the Facilities
on its property constitute valuable consideration for the financial
contributions and maintenance obligations assumed by Hopkins under this
Agreement. The contractual remedy of specific performance is available for
either party under this Agreement regardless of the existence of an adequate
remedy at law.
29. This Agreement is effective when fully executed by the parties and expires
on March 31, 2019. All obligations that have come into being before
expiration, specifically including but not limited to obligations under
paragraphs 6, 17 and 18, will survive expiration.
H. Wherever in the agreement the term "Stormwater Management Facilities"
appears, it is replaced by the term "Water Resource Improvements."
I. Exhibits A to this Amendment, labeled "Revised Standards," replaces Exhibit A of
the Agreement. Exhibits B and C to this Amendment, labeled, respectively,
"Conceptual Master Plan" and "Design and Construction Phasing Plan," are
Exhibits B and C to the Agreement.
J. Except as specifically amended hereby, the Agreement and all terms therein
remain in full force and effect.
INTENDING TO BE BOUND,
MINNEHAHA CREEK WATERSHED DISTRICT
Sherry Davis White, President
Approved for Form and Execution:
MCWD Counsel
CITY OF HOPKINS
Eugene Maxwell, Mayor
Michael Mornson, City Manager
7
Date:
Date:
Date:
Hopkins — MCWD Cooperative Agreement
EXHIBIT A
STORMWATER FACILITY STANDARDS:
Stormwater facilities located on the 427-429 Blake Road Property (the "MCWD Property") and
contiguous parcels owned by the City of Hopkins or in which it has acquired easement rights,
designed and constructed by the City of Hopkins shall generally conform to the performance
standards of the September 8, 2009 SEH Concept Plan. These facilities shall provide water
quality (phosphorus load reduction), water quantity (runoff volume reduction) and runoff rate
control for 32.48 acres of residential and commercial land in the City of Hopkins, identified by
the City of Hopkins and SEH as subwatersheds EE -1 (1.19 acres), EE -2 (9.65 acres), EH -1 (3.13
acres), EH -2 (2.7 acres), EH -3 (4.04 acres), EK -1 (0.48 acres), EK -2 (11.29 acres).
Stormwater facilities are to be designed and constructed to treat the 32.48 acre tributary drainage
area and shall: (a) provide at least 171bs/year of phosphorus load reduction, (b) reduce runoff
rates to the extent feasible and in no case increase runoff rates above existing rates for the 1, 10
and 100 year design storm events and (c) provide maximum amount of runoff volume reduction
feasible based on site specific conditions such as groundwater elevation, hydrologic soil groups
etc. Pre-treatment shall be included for stormwater facilities in accordance with the Minnesota
Stormwater Manual. Design performance of facilities shall be documented through the use of
appropriate hydraulic, hydrologic and pollutant load modeling. Modeling will be based on the
2030 buildout for the drainage area, presuming that water quality, peak flow and volume for new
development and redevelopment will be managed consistent with present Hopkins and MCWD
permitting standards.
Modeling and design of stormwater facilities on site should incorporate the following
recommendations outlined in the February 10, 2010 memorandum from Wenck Associates to the
Minnehaha Creek Watershed District: "Evaluation of Conceptual Stormwater Routing Plans for
Cottageville Park on Blake Road in Hopkins" (attached).
Adjustments to modeling:
• Use more recent precipitation and temperature files, and increase the number of runs
from 1 to 3.
• Change the filtration efficiency for soluble fraction (PO) from 90% to 0% to reflect that
soluble phosphorus will be passing through the system untreated.
• Reduce pond volumes to reflect the likely limit in pond depth and maintain existing
footprint for conceptual plan. Original depths were about 2.2 to 2.3, revised pond depths
should be set to 1.8 feet to accommodate an underdrain system.
A
Conceptual Alternative Design:
• Characterize local groundwater elevation & soils prior to design.
• Add pretreatment with a forebay or proprietary device, this will also reduce maintenance
activities.
• Use engineered filtration media to promote filtration, enhance plant rooting depth,
increase evapotranspiration.
• Consider assisted filtration by adding iron filings or an alternative to target removal of
soluble phosphorus. Consider making this a demonstration project, by adding iron filings
to one of the two ponds and measuring load reductions in both ponds. Some alternative
routing scenarios would be necessary if this option is selected.
• Design the biofiltration systems with underdrains.
• Consider addition of a shallow profile stormwater collection/ passive irrigation system to the
garden area (or two garden areas). This could be in -lieu of one of the ponds, or to treat additional
drainage area. Consider making the garden a native plant showcase and adding educational or
community outreach elements. The additional cost for passive irrigation in an area about the size
of the planned garden -oval is about $160,000. The volume mitigation is equivalent to the 0.7 inch
storm which corresponds to 50% P removal capacity, and 80- 90 % of storms. This can also serve
as a demonstration for future multipurpose public land use projects.
• Add monitoring to gauge effectiveness of demonstration projects. Bypass winter and
early spring wet weather and large storm events to avoid impacts of road salt and large
storms.
• Disconnect Pond A and B, as the treatment train will do nothing but hydraulically
overload Pond B.
• Review updated MCWD XP-SWMM Model of the Creek to make additional
recommendations.
• Add educational kiosks.
• The bio -filtration area EK -1 should be expanded to treat the 1.25 inch event Bring
existing Interceptor Crossing into compliance with the MCWD Waterbody Crossing
Rule.
Stormwater facilities may not include design features or management practices that unduly
restrict groundwater flow through the site.
VEGETATION STANDARDS:
Native vegetation shall be planted and maintained in all bioretention basins such that a minimum
of 95% native species cover and a maximum of 5% invasive species cover is retained.
Vegetative Performance Standards:
• Year 1 (first full growing season after construction): Seedlings of at least 4 native species
shall be widely dispersed through the bioretention basins. No areas of bare soil larger
than 16 square feet shall exist. There shall be no more than 5% total coverage of exotic,
non-native, or invasive vegetation (such as cattail).
• Year 2 (second full growing season after construction): The bioretention basins shall
contain at least 30% of all species contained in the specified seed mixture. No areas of
bare soil larger than 9 square feet shall exist. There shall be no more than 5% total
coverage of exotic, non-native or invasive vegetation.
Subsequent years after Year 2: The bioretention basins shall have a minimum of 95%
cover of native, non-invasive vegetation and shall contain at least 40% of all species in
the specified seed mix. No areas of bare soil larger than 4 square feet shall exist. There
shall be less than 5% total coverage of exotic, non-native, or invasive vegetation.
ECOLOGICAL RESTORATION & SECONDARY OBJECTIVES:
In addition to achieving the above water quality, water quantity and rate control standards,
design of the stormwater facilities on site should, as feasible, accommodate concurrent or future
integration of broader ecological concerns, passive recreation and trails, active recreation and
public education opportunities. The 75 foot average buffer may include the native planting areas
within the rain water gardens and may include a pedestrian trail and at least one access point to
the creek as shown in the concept plans prepared by the City. Any temporary excavations within
the buffer area will have adequate erosion protection and shall be restored in a timely fashion.
Stormwater facilities and the 75 foot creek buffer shall be planted and maintained with native
vegetation suited to the site and anticipated soil moisture conditions.
Design of stormwater facilities on site will conform to a tree preservation plan prepared by the
MCWD after site inspection and consultation between the MCWD and Hopkins.
MAINTENANCE:
Maintenance terms described in this exhibit will be incorporated in recorded perpetual
instruments (easement for the MCWD Property, declaration for Hopkins parcels).
L'
STORMWATER FACILITIES MAINTENANCE
When construction is complete, Hopkins will perform an as -built topographic survey of the
stormwater facilities. Bottom sediment elevations are to be observed annually and measured
every 3 years to monitor sedimentation. When half of the as -built volume has been displaced
with sediment, the basin shall be excavated and rebuilt to its design depth.
Hopkins shall perform annual inspections of stormwater facilities, stormsewer pipes and side
slopes. Maintenance is required to remove trash and debris, and to repair eroded side slopes.
Bioretention basins are to be inspected annually and after significant storms. The length of time
required for a basin full of water to completely drain should be no more than 48 hours. If a basin
does not drain at this rate, maintenance is required.
Any proprietary devices shall be inspected and maintained in accordance with manufacturer
instructions.
Hopkins shall keep records of inspections and maintenance performed.
VEGETATION MAINTENANCE
Native vegetation shall be planted and maintained such that a minimum of 95% native species
cover and a maximum of 5% invasive species cover is retained.
Maintenance activities shall be performed by a qualified professional:
■ A certified wetland scientist or biologist shall conduct all vegetation surveys.
■ A licensed contractor shall perform all maintenance within the bioretention basins.
iE
0 0.
I
v
a�
€
O
a
x o�
IN
pro- Eig
c
COOPERATIVE AGREEMENT
Minnehaha Creek Watershed District and City of Hopkins
Cottageville Park Stormwater Management and Park Improvement Project
This Cooperative Agreement ("Agreement") is made between the Minnehaha Creek
Watershed District (MCWD), a watershed district and political subdivision with
powers at Minnesota Statutes Chapters 103B and 103D, and the City of Hopkins
("Hopkins"), a home rule charter city of the State of Minnesota (together, the
"parties").
Recitals and Statement of Purpose
WHEREAS the Minnehaha Creek corridor has sustained damage to its water quality,
channel stability, habitat and public use opportunities as the result of decades of
urban development, urban stormwater discharges and adjacent urban uses;
WHEREAS market forces, public investments and other external sources prompt
and are expected to continue to prompt evolution of current land use, development
and redevelopment along the corridor;
WHEREAS Hopkins has a strong interest in supporting and facilitating current use,
development and redevelopment that promote the social, economic and
environmental well-being of its residents and the broader community;
WHEREAS coordination between the parties, and among the parties and other
public and private stakeholders, can enhance the social, economic and
environmental vitality of the corridor cost-effectively and further the goals and
purposes of the parties;
WHEREAS in furtherance of the parties' objectives, the parties have entered into the
Option Agreement identified and defined in Paragraph 7 of this Agreement;
WHEREAS the parties acknowledge that their ability to achieve these objectives
depends on each party satisfactorily and promptly performing individual obligations
and working cooperatively with the other party in accordance with the terms and
conditions stated in this Agreement;
THEREFORE the parties enter into this Agreement to document the scope of work
to be undertaken and the responsibilities assumed by each party; establish
procedures for carrying out these responsibilities; and facilitate communication and
cooperation between the parties for the successful completion of the work
encompassed by the Agreement; and
THEREFORE the parties further agree that this Agreement is made for mutual
valuable consideration and is legally binding on them pursuant to the terms herein.
Agrcement
Relation of the Parties
1. This Agreement provides for the coordination of independent activities by the
parties related to the proposed acquisition of the Property pursuant to the Option
Agreement (as those terms are defined in Paragraph 7), the development or
improvement of that Property according to the provisions of this Agreement, and
related cooperation for municipal and watershed goals as described herein, and does
not provide for a joining of powers. The governing body of each party will retain its
authority to direct the activities for which that party is responsible. Neither party is
responsible for the acts or omissions of the other within the meaning of Minnesota
Statutes 5471.59, subdivision 1a.
2. All notices or other communications under this Agreement shall be in writing and
shall be deemed to have been delivered on receipt in hand, by fax or electronically at
the addresses stated below, namely:
MCWD
Mark Ten Eyck
Land Conservation Program Manager
MCWD
18202 Minnetonka Boulevard
Deephaven MN 55391
952-471-0590 ext. 202
mteneyck ,minnehahacreek org
Hopkins
Kersten Elverum
Director of Planning
1010 First Street South
Hopkins, MN 55343
1-.elverum@ho.pkinsmn.com
Either party may change its addresses for notice purposes by written notice to the
other party given as provided above.
3. The parties will cooperate to develop and carry out a plan for proper and effective
communications with affected landowners and the broader public related to the
subject matter of this Agreement.
4. Each party will bear the cost of carrying out its tasks and responsibilities under
this Agreement, except as otherwise expressly provided in this Agreement.
2
5. MCWD approval of a stormwater facility or park improvement design under this
Agreement is not an engineering certification of the design. The MCWD specifically
disclaims any warranties or representations relative to the design or functionality of
such improvements. The MCWD has no authority to select, or role in selecting, the
means, method or manner of performing any of the work or the person or firm who
will perform the work and is not liable for any amounts owed to such persons or
firms. Any MCWD right to review or approve a design, work in progress or
constructed improvement under this Agreement is solely for the MCWD's own
purpose of ensuring that its public water resource goals are met and accounting for
funds expended.
6. Hopkins will indemnify, defend and hold harmless the MCWD, its officers, board
members, employees and agents from any and all actions, costs, damages and
liabilities of any nature to the degree they are the result of any action or inaction by
Hopkins or its contractor that is the basis for Hopkins' or its contractor's liability in
law or equity, including but not limited to ordinary negligence. The MCWD will
indemnify, defend and hold harmless Hopkins, its officers, council members,
employees and agents, from any and all actions, costs, damages and liabilities of any
nature to the degree they are the result of any action or inaction by the MCWD that is
the basis for the MCWD's liability in law or equity, including but not limited to any
claims arising out of the Option Agreement. Notwithstanding the foregoing or any
other term of this Agreement, neither the MCWD nor Hopkins waives immunity in
tort. This Agreement creates no right in and waives no immunity, defense or liability
limit with respect to any third party.
Real Estate Acquisition
7. In accordance with the provision of that certain Memorandum Agreement by and
between Hopkins and the MCWD dated June 14, 2010 (the "Memorandum
Agreement"), Hopkins hereby assigns to MCWD all rights it possesses as Optionee
under that certain Option Agreement dated June 16, 2010, and all amendments
thereto, by and among Nemar Properties, LLC; Hopkins, and the MCWD for the
purchase of 427-429 Blake Road (the "Option Agreement"). The real property
located at 427-429 Blake Road that is the subject of the Option Agreement is herein
referred to as the "Property". If and to the extent necessary, Hopkins will cooperate
with the MCWD in connection with the exercise of all rights, responsibilities and
remedies of Optionee under the Option Agreement; provided, however, Hopkins'
liability for costs and expenses in connection with the Option Agreement incurred or
arising prior to the date hereof shall be limited by and allocated in accordance with
the provisions of the Memorandum Agreement. Paragraphs 1, 2 and 3 of the
Memorandum Agreement are incorporated in this Agreement by reference and shall
remain in effect in all of their terms, covenants and conditions.
8. This Agreement does not obligate the MCWD to exercise the option for
acquisition of the Property. From and after the date hereof, the MCWD may exercise
its rights and responsibilities as Optionee under the Option Agreement in its sole
discretion and as it determines appropriate. The MCWD will promptly advise
Hopkins of its decisions and actions as Optionee and will notify Hopkins of a) its
3
election to exercise the option to purchase the Property, or b) the termination of the
Option Agreement and election by MCWD not to exercise its option to purchase the
Property.
9. The parties' obligations and undertakings under the succeeding paragraphs of
this Agreement are subject to and contingent upon the MCWD acquiring the
Property pursuant to the Option Agreement. If the MCWD does not acquire the
Property pursuant to the Option Agreement, Paragraphs 10-29 of this Agreement
shall become null and void and shall have. no further force or effect.
Stormwater Management Immovements
10. If the MCWD acquires the Property and conveys or unconditionally agrees to
convey the Easement (defined in Paragraph 12) to Hopkins, Hopkins will design,
construct and maintain stormwater management facilities conforming to the siting,
performance, vegetation and maintenance criteria contained in Exhibit A to this
Agreement, attached and incorporated herein. The stormwater management
facilities to be designed, constructed and maintained by Hopkins in accordance with
the terms and conditions of this Agreement are herein referred to as the "Stormwater
Management Facilities."
11. Within 180 days following MCWD's closing on the Property, Hopkins will
transmit to the MCWD preliminary plans for the Stormwater Management Facilities.
The Stormwater Management Facilities may be sited on one or more parcels owned
by Hopkins including the Cottageville Park property and any other property on
which Hopkins has acquired, or is committed to acquiring, the property interest to
support the improvements; or on the Property. The parties will consult and
cooperate in Hopkins' development of the preliminary plan.
12. The MCWD will convey to Hopkins, at no cost, temporary and perpetual
easements on the Property sufficient for construction and maintenance of stormwater
management facilities conforming to Exhibit A and approved by the MCWD
pursuant to this Agreement (the "Easement"). Notwithstanding, (a) Hopkins will
conduct construction staging and stockpiling to the extent feasible on property other
than the Property and (b) construction limits on the Property will be defined to
minimize tree, vegetation and soil damage. Hopkins will perform the work in
accordance with all applicable permits and approvals, including those of the MCWD.
The MCWD in the easement may place terms on the performance of the work in
order to protect its proprietary and water resource interests, provided they do not
render the work unfeasible or significantly increase its cost.
13. Hopkins will exercise reasonable diligence to timely produce final design plans
and specifications, as well as facility and vegetation management plans, for the
Stormwater Management Facilities, for MCWD review and approval. MCWD
approval will be based on the criteria in Exhibit A and will not lie unreasonably
withheld. Specifically, if the final design plans and specifications for the Stormwater
Management Facilities are in conformity with the preliminary plans submitted under
4
Paragraph 11 and the criteria in Exhibit A, the MCWD shall reasonably grant
approval of such plans and specifications.
14. On MCWD approval under the preceding paragraph 13 and the conveyance of or
unconditional agreement to convey the Easement to Hopkins, Hopkins will retain a
contractor to promptly and diligently construct the Stormwater Management
Facilities substantially in accordance with the approved design and all applicable
permits, approvals, rules, environmental review and other legal requirements,
including those of the MCWD. To the extent work will occur on MCWD property,
the MCWD may require that Hopkins include in the construction contract or
otherwise provide reasonable protections for the MCWD as to potential liabilities
resulting from construction and maintenance of the facilities that may include, but
are not limited to, insurance coverage and indemnification requirements, as well as
vegetation warranties. To the extent of its authority under applicable bidding law,
Hopkins will work with the MCWD to incorporate and apply criteria to ensure the
selected contractor is qualified to successfully implement any specialized designs or
methods.
15. Hopkins will notify the MCWD of construction meetings, which the MCWD may
attend. Hopkins may issue change orders and work change directives for the work,
subject to MCWD concurrence in any change that materially modifies either the
Stormwater Management Facilities approved by MCWD or any element of the
contract providing protection for the MCWD as described in the preceding
paragraph 14. Hopkins will notify the MCWD of proposed change orders and work
change directives and provide the MCWD at least two full business days to review
and respond. If a proposed change order or work change directive requires city
council approval, Hopkins will provide such notice at least two business days before
city council consideration. Where MCWD concurrence is required, the MCWD will
respond within two business days of a written request for concurrence accompanied
by adequate documentation of the proposed change. A response may state the need
for additional time, if MCWD concurrence requires Board approval or specific
engineering review is needed. In such a case, the MCWD will exercise good faith
and diligence to respond as quickly as possible consistent with the contract(s)
entered into by Hopkins for the construction of the Stormwater Management
Facilities. Change order and work change directive concurrence may be exercised
by MCWD staff provided the design as revised conforms with Exhibit A.
16. Hopkins will notify the MCWD within a reasonable time of the substantial
completion of the Stormwater Management Facilities. At the earliest mutual
opportunity, the MCWD will accompany Hopkins on the walk-through and
identification of remaining work items. Within 20 days of walk-through, the MCWD
will provide concurrence in conformance to design plans and specifications or
specify deviations. If the MCWD specifies deviations in the Stormwater
Management Facilities that are not in substantial compliance with the approved
plans and specifications therefor, the parties will work together to determine
remaining work required and how it will be accomplished. Hopkins will provide the
MCWD with a full set of record drawings for the stormwater management
improvements.
17. Hopkins will maintain the Stormwater Management Facilities in perpetuity in
accordance with the facility and vegetation management plans approved by the
MCWD. If the MCWD finds that facility or vegetation management is not meeting
requirements of such management plans, it will provide Hopkins written notification
describing the deficiency and, at the request of either party, the parties will meet
promptly. Hopkins may cure such a facility maintenance deficiency within 30 days
of the notification or meeting, or within such other time as the parties may agree;
and may cure a vegetation maintenance deficiency by October 15 following the next
full growing season after the notification or meeting, or within such other time as the
parties may agree. If at that time the MCWD finds that the deficiency has not been
cured, it may assume responsibility for maintenance of the facilities and/or native
vegetation, with reimbursement by Hopkins for MCWD contract costs incurred. If
the MCWD does not exercise this right, Hopkins' maintenance responsibility and its
responsibility for maintenance costs will remain undiminished.
18. The parties will collaborate with respect to signage and other public information
relating to the facilities. Each party retains the right to install and maintain signage
or otherwise engage in any public informational effort with respect to its property,
but will consult with the other party. Any public materials will acknowledge the
shared participation of the parties in the project.
19. With the input of the MCWD and Hopkins engineers, the MCWD Board of
Managers will determine the pollutant load reduction resulting from the project. On
the basis of relative contributions to the costs of stormwater management
improvements as reviewed by the parties, the MCWD will receive credit for 68
percent, and Hopkins will receive credit for 32 percent, of the pollutant load
reduction for the purpose of meeting load allocations in the MCWD's watershed plan
as well as any other water quality -related purpose.
Park Improvements
20. Hopkins intends to undertake recreational, park or other improvements to and
the reconfiguration or expansion of Cottageville Park at its discretion and sole cost in
conjunction with the acquisition of the Easement and design and construction of the
Stormwater Management Facilities. MCWD may approve the siting of park
improvements on the Property and shall convey easement rights to Hopkins
consistent with its approval. MCWD approval will be on the basis of the water
resource impacts of the park improvements, the potential for other uses of the
Property consistent with MCWD's statutory purposes, possible MCWD liabilities and
other relevant considerations.
21. Park improvements on the Cottageville Park property and any adjacent properties
Hopkins may acquire have a primary purpose of serving recreational needs for the
community. The MCWD will cooperate with Hopkins on the design and
construction of any park improvements. For park improvements on Hopkins
property, MCWD staff will have authority to approve the preliminary or concept
plans for the park improvements with respect to water resource aspects of the design,
including but not limited to stormwater impacts, tree preservation and design for
R
public education on water resource features of the site. Aside from orderly review
and permitting under its rules, the MCWD will not have authority to approve the
final plans and specifications for the park improvements on Hopkins property,
provided such final plans and specifications are in conformity with the preliminary
plans or concept plans for the park improvements approved by MCWD. The MCWD
recognizes that the park improvements are intended, among other things, to serve
specific recreational needs of the community. Hopkins recognizes the importance of
meeting identified recreation needs in a way that supports and does not interfere
with the District's surface and groundwater protection goals. The parties agree to
work together and collaboratively to allow Hopkins to produce a park design that
will integrate and knit together areas of active recreation, stormwater facilities, and
protected vegetation and riparian areas to meet recreational needs in a way that
provides for both active and passive recreation; meets MCWD goals for water
resource restoration, enhancement and protection; and brings the public into
productive and learning contact with water resource and conservation features.
Metronolitan Council Lift Station
22. The parties will cooperate to engage the Metropolitan Council in its project to
relocate and reconstruct its Blake Road sanitary lift station. The parties' goal will be
to establish a lift station location, design and construction schedule consistent with
their water resource and park interests.
23. Hopkins will use its powers including its land use authorities to avoid a lift
station siting deemed unacceptable to Hopkins or the MCWD, to distance the site
from the creek, and to provide for spill protection and other risk reducing features to
be incorporated into the design.
Further Collaboration
24. The parties will collaborate closely during design of the stormwater management
facility and park improvements described in this Agreement. Hopkins will initiate or
continue design efforts on these improvements on execution of this Agreement, in
order to produce, without compromising the November 30, 2012 date for substantial
completion of the Stormwater Management Facilities, a design that best integrates
the public goals of the parties for the contiguous area comprising the Cottageville
Park parcel, Property, and any other parcels in which Hopkins has acquired or is to
acquire sufficient property rights. In a writing signed by both parties, and an
amendment to this Agreement if necessary, the parties may adjust the design of the
stormwater management facility improvements to incorporate trails or other park
features and otherwise to advance the parties' mutual goals.
25. Hopkins and the MCWD agree that collaboration can result in expanded public
benefits in realms of economic and housing redevelopment, public facilities and
water resource protection and conservation. The parties will jointly review and build
on the adopted Hopkins small -area plan encompassing the project area in order to
develop a long-range redevelopment plan for an appropriately delineated area
identified cooperatively. For the purpose of developing this plan, the parties commit
7
to work collaboratively and diligently to achieve, by September 9, 2010, governing
body approval of a document that contains the following:
a. A mutual statement of redevelopment goals;
b. Identification and assessment of potentially applicable redevelopment tools
including but not limited to land use powers, regulatory powers,
redevelopment powers, property acquisition funds and powers, and revenue
mechanisms;
c. A review of opportunities for third -party participation, including but not
limited to housing and redevelopment authorities, private landowners and
stakeholders, and other municipalities along the Minnehaha Creek corridor;
and
d. Identification of further steps needed to complete a redevelopment
implementation plan and a plan and schedule to complete those steps.
The parties will cooperate to complete the redevelopment implementation plan. The
parties will retain consultants, commission studies and otherwise apply resources
that they mutually determine are needed to ensure a sound and feasible plan that has
community support. Costs, data ownership and other considerations related to this
work will be negotiated between the parties in accordance with the relation the work
in question bears to the purposes and roles of each party.
26. Neither party is committing to any specific role or responsibility under a
redevelopment implementation plan by signing this Agreement. The outcome of the
parties' effort under paragraph 25 will be a separate agreement allocating roles and
responsibilities under the implementation plan, and that will be subject to approval
by each party's governing body.
Remedies and Termination
27. Subject to the contingencies and conditions stated above, Hopkins will
substantially complete the Stormwater Management Facilities by November 30, 2012,
28. Only contractual remedies are available for the failure of a party to fulfill the
terms of this Agreement. The parties agree that the MCWD's acquisition of the
Property, its assumption of relocation, demolition and other costs related to 427-429
Blake Road, and the acquisition of the Easement by Hopkins constitutes valuable
consideration for the Stormwater. Management Facilities. If the Stormwater
Management Facilities are not completed by Hopkins in accordance with this
Agreement, the MCWD may have, at its election, the contractual remedy of specific
performance requiring that Hopkins fully perform its obligations under this
Agreement.
29. This Agreement is effective when fully executed by the parties and expires five
years thereafter. All obligations that have come into being before expiration,
specifically including but not limited to obligations under paragraphs 6 and 17, shall
survive expiration.
8
INTENDING TO BE BOUND,
MINNEHAHA CREEK WATERSHED DISTRICT
ames Calldns, President
Approved for Form and Execution:
D Counsel
CITY OF HOPKINS
� v
By: Eugene J. Maxwell
Its: Mayor
By: Richard Getschow
Its: City Manager
Dated: September 10, 2010
0
If
114vN'%l*' ,
AM*
puou ;*jujq
F-4
7N