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CR 2014-084 Approve License and Use Agreement with ISD 270 for Construction of Parking Lot on Minnetonka Mills Road Right-of-WayJuly 31, 2014 Ho p K i N s Council Report 2014-081 Approve License and Use Agreement with ISD 270 for construction of parking lot on Minnetonka Mills Rd right of way Proposed Action Staff recommends adoption of the following motion: Move that Council approves a license and use agreement with Independent School District 270 for the construction and use of a parking lot within the Minnetonka Mills Road right of way. Overview The Hopkins Independent School District 270 has requested the use of the Minnetonka Mills Road unimproved right of way between 91h and 10th Avenues North for a parking lot to serve the Alice Smith Elementary School. City staff has reviewed the construction documents and the Zoning & Planning Commission considered the request at its July 29 meeting. The City Attorney's Office has prepared a license and use agreement outlining the conditions for the ISD 270's use of this right of way. The School District would. like to construct the parking lot this fall. City Staff recommends approval of the license and use agreement. Primary Issues to Consider ® Parking lot design details ® Terms of the licenseluse agreement Supporting Information License and Use Agreement Construction Documents Aerial photograph of the area Steven J. Stadler, Public Works Director Financial Impact: $ n/a Budgeted: Source: Related Documents (CIP, ERP, etc.): Notes: Council Report 2014-081 Page 2 Primary Issues to Consider Parking Lot Design details - The parking lot is 44 -stalls with asphalt pavement, concrete curb/gutter, and interior storm drainage and infiltration basin. The layout includes 9' wide x 18' deep parking stalls and a 22' wide drive aisle. Although these dimensions match those of the adjacent school district parking lot and other district parking lots, they do not meet city standards of 9' x 20' stalls and will, therefore, require a variance. The plaofi��eudots Nineheg sting treesh cedar or redwood Tremain along the south shrub plantings along the south edge edge of the lot. However, four trees will be removed to allow for the parking lot construction. Terms of the license agreement o Term: 20 years with 10 year renewals o Termination: Either party may terminate with 2 -yr notice. City termination must be for a public purpose. o Standard language regarding City indemnification, insurance, default o City has right to inspect facilities, including storm sewer treatment system, for proper condition and function Mills Road to o ISDcon must he parking Minnetonka of with a new sidewalk allong the dewalk tnorth edge ofhat is -the parking construct the p g area within 2 years LICENSE AND USE AGREEMENT This License and Use Agreement (this "License Agreement") is made and entered into this day of , 2014, by and between the City of Hopkins, a municipal corporation under the laws of the State of Minnesota (the "City"), and Independent School District 270, a (the "License Holder"). RECITALS A. License Holder is the fee owner of Real Property ("License Holder's Property") situated in the City of Hopkins, Hennepin County, Mitnesota, and legally described in Exhibit A attached hereto and incorporated herein by reference. B. License Holder's Property is contiguous with the rights of way of Minnetonka Mills Road that is a public street maintained by the City. In connection with the development and improvement of the License Holder's Property, the License Holder has requested that it be permitted to use a portion of such street right of way for the uses and purposes stated in this License Agreement. That portion of such street right of way to be used by the License Holder is legally described in Exhibit B attached hereto and incorporated herein by reference and is herein referred to as the "License Area". C. The City has agreed to grant to License Holder a License to use the License Area for the uses and purposes and upon the terms and conditions stated in this License Agreement. NOW, THEREFORE, in consideration, of the foregoing Recitals, which are incorporated herein and made a part of this License Agreement, and of the terms and conditions hereinafter stated, the City and the License Holder agree as follows: 1 1. License. Subject to the provisions of this License Agreement, the City hereby grants to License Holder a nonexclusive license (the "License") for the uses and purposes stated in Paragraph 2 of this License Agreement, in, under, over and across the License Area, The City hereby authorizes the License Holder to use the License Area on a nonexclusive basis, solely for the uses and purposes and on the terms and conditions set forth in this License Agreement. The License granted by this License Agreement shall continue for the term stated in Paragraph 5 of this License Agreement and is granted subject to the rights of the public in the right of way of Minnetonka Mills Road. By granting the License and entering into this License Agreement, the City makes no warranty, representation or agreement that it has good and marketable fee simple title to the License Area nor does the City agree to warrant or defend the License or License Holder's interest from other parties who may claim any right, title or interest in the License Area. The License is appurtenant to License Holder's Property, and may not be transferred or assigned except to an owner of License Holder's Property in connection with the conveyance of License Holder's Property. 2. Purpose of License and Use of License Area. The License is granted for the sole purpose of permitting License Holder to construct and maintain a parking lot, certain parking improvements related thereto, and landscaping, within the License Area, all as depicted in the site plan attached to this License Agreement as Exhibit C, and to use such parking lot to provide parking for Alice Smith Elementary School on License Holder's Property. The said parking, certain parking improvements related thereto and landscaping shall be constructed and maintained in good working order and in compliance with applicable local, state and federal rules and regulations. The City shall have the right to enter the License Area to inspect, during the tern as described in Section 5, the said improvements, including, but not limited to, stozmwater 2 improvements, to ensure said improvements are in compliance with this License Agreement and License Holder shall make repairs to said improvements, within a reasonable time, if directed by the City based on the City's inspections. The License and License Holder's use of the License Area are limited to the specific purposes and uses stated in this License Agreement, and License Holder shall use the License Area for no other purposes. The said improvements contemplate the removal of a public sidewalk located along the not edge of the Minnetonka Mills right of way. The License Holder shall replace said sidewalk within 2 years of completion of the said improvements with a public sidewalk located along the north edge of License Holder's parking lot and contiguous with the remaining Minnetonka Mills Road sidewalk. I No Interference. In the performance and exercise of the License and its rights and obligations under this License Agreement, License Holder shall not damage or interfere in any manner with the condition or operation of any public roads, streets, curbs, sidewalks, sanitary sewers, water mains, storm drains, gas mains, poles, overhead and underground electric and telephone wires, facilities, or other utility improvements or public or quasi public facilities without the prior written approval of the City, which approval may be withheld in the City's reasonable discretion and may be conditioned on License Holder agreeing to restore and repair any damage to such facilities or improvements. 4. No Pro er Interest. This License Agreement is not intended to grant to License Holder any property interest in the public right of way of Minnetonka Mills Road, and is made subject and subordinate to the prior, superior and continuing right of the City to use any such Public rights of way as a street and for any other public use and for the purpose of laying, installing, maintaining, repairing, protecting, replacing and removing sanitary sewers, water 3 mains, storm drains, gas mains, poles and utility improvements, strects and sidewalks, and for other public uses. 5. Term. The term of this License Agreement and the License shall begin on the date stated in the first paragraph of this License Agreement and shall continue for a period of 20 years. Upon the end of each tern. License Agreement will renew for a 10 year term. The License Holder may terminate this License Agreement at anytime by providing the City with 24 months prior written notice. The City may terminate this License Agreement at anytime if needed for a public purpose by providing the License Holder with 24 months prior written notice. Should either party wish to terminate the License Agreement and the License, such party shall serve written notice of termination on the other party and this License Agreement and the License shall terminate and be of no further effect on the second anniversary date of the date on which notice of termination is given. The recordation of an Affidavit by either party that such notice of termination has been given shall conclusively establish that this License Agreement and the License have been terminated. 6.. Restoration of Public Ri ht -of Wa License Holder shall, after completion of the construction, installation, maintenance, removal or relocation of any parking improvements constructed or maintained by License Holder within the License Area, at its own cost, repair, restore and return the License Area and the public right of way and any highway, road, sidewalk, utility or other improvements to the same condition existing before such construction, installation, maintenance, repair, removal or relocation. All such construction, repair and restoration shall be done in accordance with Law, now or hereafter in effect, and such work shall be completed as promptly as reasonably possible. If License Holder does not properly perforin and complete the work, remove all dirt, rubbish, equipment and material, and restore the public right of way to the I same or better condition, the City may complete such restoration, including restoring any highway and any highway, road, sidewalk, utility or other improvements to the same condition at the expense of License Holder. License Holder shall, upon demand, pay to the City the direct and indirect cost of the work done for or performed by the City, including but not limited to, the City's administrative costs. Notwithstanding the foregoing provisions of this Paragraph b, in the event this License Agreement is terminated by the City, except in the case of termination resulting from License Holder's default hereunder, License Holder shall not be responsible for the costs of removal of parking improvements or the restoration of the License Area and the Public Right of Way, provided that, in such event, License Holder agrees the City shall be entitled to remove any parking improvements constructed or maintained by License Holder within the License Area from the License Area. 7. Damaze. License Holder shall be responsible for damage to street improvements, existing utilities, curbs, gutters and sidewalks due to License Holder's installation, maintenance, repair or removal of the improvements to be constructed and maintained within the License Area by License Holder, and shall repair, replace and restore all damage to public right of way and any improvements therein at its sole expense and such improvements at its sole expense and subject to approval by the City, which approval shall not be unreasonably withheld or delayed. S. Indemx►ification. License Holder, for itself, its successors, assigns, agents, contractors and employees, agrees to indemnify, defend and hold harmless City, its officials, representatives, employees and agents from and against any and all claims, demands, losses, damages, liabilities, fines and penalties and all costs and expenses incurred in connection therewith, including, without limitation, reasonable attorneys' fees and costs of defense arising directly or indirectly, in whole or in part out of the construction, installation, use, operation, Wi maintenance, repair, removal or relocation of the improvements to be constructed and maintained by License Holder within the License Area or any breach by License Holder of its obligations described in this License Agreement, except to the extent arising solely from the City's willful action or negligent acts or omissions. 9. Insuranee. License Holder and/or any of its subcontractors or agents shall maintain throughout the term of this License Agreement, Workers' Compensation Insurance (during the course of construction operations) complying with all statutory requirements and comprehensive general liability insurance, which latter insurance shall provide the following coverages and minimum limits: a. Bodily injury liability: $2,000,000.00 each person $3,000,000.00 each occurrence b. Property damage liability $3,000,000.00 each occurrence or C. Bodily injury and property damage combined $3,000,000.00 single limit License Holder agrees that with respect to the above -required insurance contracts will contain the following required provisions: d. The City and its officers, agents, employees, board members and elected officials shall be named as additional insured (as the interests of each may appear) as to all applicable coverage; and e. Such Contracts shall provide for thirty (30) days notices to the City prior to cancellation, revocation, nonrenewal or material change. f. Such insurance contracts shall also provide for waiver of subrogation by the insurer for any subrogation claims against the City. License Holder shall provide the City with certificates evidencing the above insurance coverage prior to the commencement of any work within the License Area or issuance of any permits for such work. 6 10. Default. If License Holder is in default of its obligations, including, but not limited to, restoration requirements for more than thirty (30) days after receiving written notice from the City of the default, the City may terminate and revoke the License and the rights of License Holder under this License Agreement, by written notice to License Holder and such termination shall be effective 30 days after delivery of notice of termination. If License Holder shall default in the performance of its obligations under this License Agreement, the City may, after the above notice to License Holder and failure of License Holder to cure the default, take such action as may be reasonably necessary to abate or remedy the default or the condition caused by the default. License Holder shall reimburse the City for the City's reasonable costs, including costs of collection and attorneys' fees, incurred as a result of License Holder's default and the correction or abatement thereof, and such costs may be levied as a special assessment against License Holder's Property pursuant to Minn. Stat. Chapter 424 should License Holder fail to pay such costs within 30 days of delivery of a demand for payment to License Holder. It. Notices. All notices or other communications required or permitted to be given under this Agreement shall be in writing and shall be hand delivered or sent by certified mail, return receipt requested, to the following addresses: All notices to License Holder shall be given to the party listed as the owner and taxpayer in the real property taxation records maintained by Hennepin County, Minnesota, and delivered to the address on file in such records for the owner and taxpayer of License Holder's Property. If to City: City of Hopkins Attention: Engineering Supervisor 1010 First Street South Hopkins, Minnesota 55343 7 Hand delivered notices shall be deemed to have been given on the date of delivery. If notice is given by certified mail, such notice shall be deemed to have been given on the next business day following the date of mailing. 12. Mise Maneous. a. This License Agreement is made and executed in the State of Minnesota, and shall be construed and enforced according to the laws of Minnesota. b. The invalidity or unenforceability of any provision of this License Agreement shall not affect or impair the validity of any other provisions, all of which shall remain in full force and effect. C. The paragraph or section titles and captions in this License Agreement are for convenience of reference only and do not define, limit or construe the contents of the sections and paragraphs of this License Agreement. d. This License Agreement shall be binding upon and inure to the benefit of the parties hereto and, subject to the restrictions and limitations herein contained, their respective successors and assigns. e. Any modification to this License Agreement shall only be effective if in writing and signed by all of the parties to this License Agreement. IN WITNESS WHEREOF, the City and License Holder have executed this License Agreement effective as of the date first above written. CITY OF HOPKINS, MINNESOTA By Eugene J. Maxwell, Its Mayor By Michael Moinson, City Manager STATE OF MINNESOTA )SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this . day of , 2014, by Eugene J. Maxwell, the Mayor and Michael Mornson, the Manager of the City of Hopkins, a municipal corporation under the laws of Minnesota, on behalf of the municipal corporation. Notary Public INDEPENDENT SCHOOL DISTRICT 270 RM Its Its STATE OF MINNESOTA )SS COUNTY OF HENNEPIN ) day of The foregoing instrument was acknowledged before e this ' the 2014, by � the , of behalf of of Independent School District 270, a the District. THIS INSTRUMENT WAS DRAFTED BY: Hoff, Barry & Kozar, P.A. Suite 160 775 Prairie Center Drive Eden Prairie MN 55344 10 Notary Public EXHIBIT A LICENSE HOLDER'S PROPERTY c:lfilp-%opc`svldonfraco.agt EXHIBIT B LICENSE AREA c:lfile%opcivldonfraco.agt EXHIBIT C SITE PLAN c:lfilelhopcivldonfraco.agt XY. — — — — — — — — -- — — — — — — — — — — — — — — — — — — — — --- 'ON an. -Doc IN�14:-Isv3- H t fF ru,. H 'T. `ie SHRUB LIST rreEo varcamvA s-ir+ue �stimt+ri n PI 'tT BED) COMMON NAME! ROOT SIZE SYB KEY QTY BOTANICAL NAME FJxA4 DK 12 VwAAF KOREAN €I LAC CONT. 3 GAL SHRUB PLANTING Syringa nteyeil 'Pafibin' ® RT 21 REOTtYiG DOGWOOD Cornus saricea'Fanorr' CONT. 3 GAL AC 7C ANDORRA COMPACT JUNIPER Juntperus hu(zonlaiis'Anao— Compacts' CONT. 1 GAL rreEo varcamvA s-ir+ue �stimt+ri n PI 'tT BED) 1A u SUEmv ZV�ES rn mC FJxA4 V �lRRSTVPc> F'Al'+rFlLLN SHRUB PLANTING N.TS. SEE SITE PIAT! SLO'FE 27 MAX ITY0 li2"R Lo (T)F$ IF� ?SOP F51 FC CIXJCRETE ECTION B—B CURB YR puw T 72' MJF 6' {T1F.1 GATE -0 COI-L`IER FOSTS Ie' DW. �� I. 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