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CR 01-71 Approve Agrreement btwn the City of Hopkins and Justice Lumber for Abandonement of a Storm Sewer Line \ . y' CITY Of: - May 29, 2001 I-i Op KIN S Council Report 2001-71 Approve Agreement Between The City of Hopkins and Justice Lumber for abandonment of a storm sewer line on the Justice Lumber property located within a City storm sewer easement - City Project 00-11 Proposed Action Staff recommends adoption of the following motion: Move that Council approve an aareement between the City of Hopkins and Justice Lumber Company for abandonment of a storm sewer line on the Justice Lumber property located within a City storm sewer easement and authorize the Mayor and City Manaaer to sian and execute the aareement. Overview In September, 2000 a Phase I Environmental Site Assessment was performed by Wenck Associates Inc. on the Justice Lumber Company property located at 330 11th Avenue South in Hopkins. During their site investigation, Wenck discovered that during dry conditions some diluted contaminants were running out of a corroded and partially collapsed storm sewer pipe running through the property along a City storm sewer easement. After looking at the storm sewer line it was determined that contaminants were leaking into the storm sewer pipe and discharging into 9 Mile Creek. At the recommendation of the City, Justice Lumber obtained a preliminary design proposal from Short Elliot Hendrickson, Inc. (SEH), a local consulting engineering firm who has done many storm sewer designs for the City. The SEH proposal outlines engineering service fees in the amount of $11,000 and estimated construction costs of $30,000 ($36,000 with 200/0 construction contingencies) to abandon the referenced storm sewer line and reroute the drainage to other City storm sewer lines. City staff feels that proper abandonment of this storm sewer is in the best interest of the City as it is within a ,- City controlled and maintained storm sewer easement. As a result, staff is now requesting and recommending formal City approval of the agreement with Justice Lumber Company for the reimbursable amount of up to $47,000 for which funds are available from the City's Storm Sewer Utility Fund. Primary Issues to Consider . Project scope, background, and funding . Staff recommendation Supportina Information . Agreement . Consultant Proposal M~G- :il5A Steven G. Bot, Assistant City Engineer Financial Impact: $ 47.000 Budgeted: Y/N N Source: Storm Sewer Utilitv Fund Notes: As a part of the aqreement, the City will reimburse Justice Lumber for all approved costs related to the desian and construction of this proiect. Althouah this proiect was not budaeted for in the 2001 CIP. adeauate funds are available. . y Council Report 2001-71 Page 2 . Project scope, background, and funding The main scope of the project will be to design and construct new storm sewer piping from the property to connect to other City storm sewer lines. After these connections are made, the old storm sewer line can be properly abandoned. Once the abandonment of the storm sewer line is complete, the City will abandon the easement and give it back to the Justice Lumber property who will then retain full ownership and rights to the easement and storm sewer lines located on the property. Staff feels that because of the condition of the existing storm sewer pipe, this project would have been necessary regardless of the contaminant situation. The assumed conclusion is that the storm sewer contaminants were potentially coming from the property due to its use as a City owned landfill before the City sold the property to Justice Lumber in 1972. Per the agreement, this project is proposed to be substantially complete by October 1, 2001. Some further background that should be noted to Council is that other contaminants were found during the site assessment that are potentially related to when the site was used as a City owned Manufactured Gas Plant in the 1920's. These contaminants were found in a soil boring sample taken as part of the assessment and were not part of the storm sewer contamination. The City and Justice Lumber are currently investigating funding and potential consultants to perform a Phase II Environmental Assessment which would further look into the history of the site and address the issue of these contaminants. As a part of this agreement with Justice Lumber, the City will reimburse Justice Lumbe'r for all approved costs related to the design and construction of this project. This project is proposed to be funded through the Storm Sewer Utility Fund. . Staff recommendation City staff has reviewed the SEH proposal and the agreement and finds that it meets the needs of the City and Justice Lumber. Both the proposal and agreement are fair and reasonable in cost. Staff is recommending approval of this agreement as staff feels this is a necessary project that will enable the City to properly abandon a storm sewer pipe and easement that is no longer needed and has recently caused environmental concerns. Drafted 5/30/01 Miller, Steiner & Curtiss, P.A. AGREEMENT THIS AGREEMENT ("Agreement") is made as of , 2001, by and between the City of Hopkins, a municipal corporation under the laws of Minnesota ("City"), and Justus Lumber Company, a Minnesota corporation ("Justus"). RECIT ALS A. Justus is the fee owner of real property located in the City of Hopkins, Hennepin County, Minnesota, legally described as follows: Lots 1 and 2, Block 1, Justus Addition, according to the recorded plat thereof (the "Real Property") The Real Property is subject to a permanent easement in favor of the City for storm sewer purposes as established by a , recorded , as Hennepin County Document No. (the "Easement"). B. The City presently maintains certain underground public storm sewer improvements within the Easement (the "Existing Storm Sewer Improvements") to which Justus has connected its private underground storm drainage improvements located on and serving the Real Property. The City and Justus have agreed that Justus will disconnect its private storm drainage improvements from the Existing Storm Sewer Improvements, will reconnect its private storm drainage improvements to other public storm sewer improvements that are not located within the Easement and will abandon the Existing Storm Sewer Improvements and existing private storm drainage improvements in the manner specified in this Agreement. The City has agreed that, upon the completion of such work by Justus, the City will vacate the Easement, subject to the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the foregoing Recitals, which are incorporated in and made a part of this Agreement, and other good and valuable consideration, the City and Justus agree: . 1. Completion and Approval of Plans. Justus shall promptly retain a registered professional engineer ("Engineer") qualified to complete plans and specifications ("Plans") for the performance of the following work: a. The abandonment of the private storm drainage improvements presently located on the Real Property depicted as "to be abandoned" in Exhibit A attached hereto and incorporated herein. b. The construction and reconnection of the new private storm drainage improvements located on the Real Property to the underground public storm sewer improvements located north and west of the Real Property, as depicted on Exhibit A attached hereto; and c. The abandonment in place of the Existing Storm Sewer Improvements depicted as "to be abandoned" on Exhibit A attached hereto. The Plans shall be subject to review and approval by the City. Justus shall deliver complete copies of the preliminary Plans to the City for such review and approval, and the Plans shall, be modified, following their initial submission to incorporate any changes requested by the City. Developer agrees that it shall cause its Engineer to modify the initial Plans upon the City's request, and shall submit complete copies of the final Plans, incorporating any modifications requested by the City, to the City prior to commencement of construction. The Plans shall be suitable for final construction purposes before the commencement of any of the Work described or depicted in the Plans or this Agreement. Upon final approval of the Plans by the City, Justus shall proceed with the construction of the Work described in the Plans in accordance with the provisions of Paragraph 2 of this Agreement. All of the storm sewer abandonment, construction and other work described in this Paragraph 1, depicted in the Plans or Exhibit A hereto, or otherwise required to be performed by this Agreement, is herein referred to as the "Work." 2. Construction Standards and Procedures. The Work shall be performed and completed in accordance with all applicable statutes, standards, codes, regulations and ordinances. The Plans for the Work shall be prepared and certified by the Engineer and shall be furnished to the City and approved by the City Engineer or his designee prior to issuance of a building permit for the Work. As provided in Paragraph I of this Agreement, the City Engineer shall review and approve preliminary and final Plans. Following approval of final Plans for the Work, Justus shall obtain proposals from qualified contractors for the performance of the Work and shall submit such proposals to the City Engineer for review and approval. Within five (5) business days of the delivery to the City Engineer of the contract proposals for the performance of the Work, the City shall notify Justus of its approval or disapproval of the proposals, including any modifications requested by e: Hope i v\Agreement. Justus the City. Justus shall thereupon enter into contract(s) for the performance of aJ] of the Work with the contractors and according to the proposals approved by the City, incorporating any modifications requested by the City, and shall thereafter cause its contractor(s) to proceed with the performance of the Work. All contracts for the performance of the Work to substantially complete the same no later than October 1, 2001, and shall require the contractor(s) performing the Work to provide surety bonds guarantying the completion and performance of the Work. Justus or its contractor(s) shall obtain all required approvals and/or permits from the Minnesota Pollution Control Agency, Hennepin County, Minnesota, the Nine Mile Creek Watershed District or any other governmental authority whose approval is required for the construction of the Work. Justus agrees that the contractor(s) performing the Work, and the written contracts with such contractor( s), shall include warranties that the Work shall be free from defective materials or. faulty workmanship for a period of two (2) years following its completion, as evidenced by a final Certificate of Completion from the Engineer. In connection with construction of the Work, Justus or its contractor shall restore all city streets, sidewalks, public and private utilities and other public facilities and property disturbed or damaged as a result of construction activities to substantially the same condition as existed prior to commencement of construction except to the extent the approved Plans call for the abandonment, modification or removal of such streets, sidewalks, public and private utilities or other public facilities and property. Justus shall require its Engineer to cooperate with and respond to requests and questions from the City Engineer and City Inspectors to confirm that the Work is being completed in accordance with the approved Plans andall applicable statutes, codes, ordinances, regulations and standards. Justus hereby grants the City, its agents, employees and inspectors a license to enter the Real Property, as necessary, to perform all inspections deemed appropriate by the City in conjunction with the construction and completion of the Work. 3. Final Annroval of Work and Reim bursemen! bv Citv. At such time as the Work has been substantially completed, Justus shall cause the Engineer to certify to the City that the Work has been substantially completed in accordance with the approved Plans. The City Engineer, the Engineer and a representative of Justus' contractor(s) will then make the final inspection of the Work. The City Engineer shall be entitled to review and approve any punch list items or items of incomplete or defective work to assure that the same are completed in accordance with the Plans and requirements of this Agreement. As a condition of the City's obligation to reimburse Justus as c:Hopciv\AgreementJ ustus provided herein, the City shall receive from Justus or its Engineer, written evidence, in form and content reasonably acceptable to the City, that the Work has been completed in accordance with the provisions of the Plans and this Agreement and that all incomplete or defective Work has been corrected. At such time as all of the Work has been completed in accordance with the approved Plans and the terms and conditions of this Agreement have otherwise been satisfied, the City shall reimburse Justus for the following costs and expenses: a. All reasonable professional fees and costs payable to the Engineer for completing the approved Plans, provided the City Engineer shall have first approved the billing rates and other terms and conditions by which the Engineer was retained by Justus. b. All amounts due to the contractor(s) performing the Work in accordance with the proposals and contracts approved by the City as provided in this Agreement, and, further provided, that the City shall not reimburse Justus for any extras or additional Work unless such extras or additional Work have first been approved by the City Engineer, in writing. All costs and expenses incurred by Justus for the performance or provision of any other labor, skill, materials, equipment or services not specifically described in subparagraphs a. and b., above, shall not be included in the reimbursement payable by the City to Justus, but shall be the sole responsibility of Justus. The City shall not be obligated to reimburse Justus for any of the costs or expenses described in this paragraph until such time as all of the Work has been completed in accordance with the requirements of this Agreement, Justus has provided the City with evidence reasonably satisfactory to the City that it has made payment in full for all of the Work and the City Council of the City has adopted a Resolution approving final reimbursement to Justus. The approvals by the City required under this Agreement shall not be unreasonably withheld or delayed. The agreement by the City to reimburse Justus for the costs and expenses described in this paragraph is for the sole benefit of Justus, and there are no third-party beneficiaries, intended or otherwise, of this Agreement. 4. Vacation of Easement. At such time as the terms and conditions of all of the preceding paragraphs of this Agreement have been satisfied, the City shall vacate that portion of the Easement depicted as "to be vacated" in Exhibit A attached hereto. This Agreement to vacate the Easement shall be subject to compliance with all requirements of any statute, ordinance or regulation applicable to such vacation, and final approval thereof by the Hopkins City Council. c: Hopciv\Agreement. Justus 5. Notices. Any notice, request or other communication required or provided to be given under this Agreement shall be in writing and shall be deemed to be duly given when delivered personally to Justus or to the City Manager of the City or when mailed by first class United States Mail, postage prepaid, addressed as follows: To Developer: Justus Lumber Company Attention: Mr. James Justus 10751 Excelsior Boulevard Hopkins, Minnesota 55343 To City: City of Hopkins Attention: City Engineer 1010 First Street South Hopkins, Minnesota 55343 or to such other address as either party, by notice given as herein provided, shall designate. Mailed notice shall be conclusively deemed to have been given two (2) business days after the date of mailing. 6. Severabilitv. Invalidation of any of the terms, conditions, provisions or restrictions of this Agreement, whether by Court Order or otherwise, shall in no way affect any of the other terms, conditions, provisions and restrictions, all of which shall remain in full force and effect. 7. Headine:s. The headings and captions at the beginnings of paragraphs of this Agreement are for convenience of reference only and shall not influence its construction. 8. Execution of Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original, and all of which shall constitute one and the same instrument. 9. Construction. This Agreement shall be construed and enforced in accordance with the laws of the State of Minnesota. IN WITNESS WHEREOF, the City and Justus have executed this Agreement as of the date and year first above written. JUSTUS LUMBER COMPANY By Its c :Hopciv\AgreementJ ustus CITY OF HOPKINS By Its By Its STATE OF ) )SS ) COUNTY OF The foregoing instrument was acknowledged before me this _ day of 2000, by , the Company, a corporation under the laws of Minnesota, on behalf of the corporation. , of Justus Lumber Notary Public STATE OF MINNESOTA) )SS COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this _ day of 2000, by and the and , respectively, of The City of Hopkins, a municipal corporation under the laws of the State of Minnesota, on behalf of the municipal corporation. Notary Public THIS INSTRUMENT WAS DRAFTED BY: Miller, Steiner & Curtiss, P.A. 400 Wells Fargo Bank Building 1011 First Street South Hopkins, Minnesota 55343 . c :Hopciv\AgreementJ ustus EXHIBIT A DRAWING OF EXISTING EASEMENTS. STORM DRAINAGE IMPROVEMENTS TO BE ABANDONED AND OTHER WORK TO BE PERFORMED BY JUSTUS ... S J [ I L [ A IJ I) I I I lJ I\J ] 'I I I ::u o l> o m o .~. c..- "" ~ ~ ~ ....\ A \ \ \ \ \ ~o 1J ~ ~ ~\ ..l.. 11TH AVENUE JTH W[~~ N [) y~:_; --\ I-I rH~) 1< II\~ S I I -I \...J <:j) 'Or. ,.~ ~I ;- 952,912.2600 952,912.2601 ;A/ environmentaL tr::.ns!J ~ rttJ.!i,?it \tarch 30, 2001 PROJECT NO. ee>- t 1 F;r()!):?sed ?f~~:: ;''''' J\.13n.lS Lumber COI1:tpan)' Storm Sevver hnprovements FOLDER NO. INITIALS ~,u+ Hopkins, l\finnesota SEH No. P-JUSTU0101.00 Dear tifT. JustuS: Fa'X #: 7671 Date From Sf-~ Co, I Phone -# I IF3l\ If ~ ~ NIr. James Justus, President jusrus Lumber Company 330 Eleventh Avenue South Hopkins, IvIN" 55343 Short Elliott Hendrickson Inc . (SER) is pleased to provide you "vith t.""1e follov.ring proposal for Engineering Servic.es ror storm se\ver improyementsat the Justus Lumber Coinpa,,'1Y site. Our Ul1d ers tanding of the scope ()f improvements is the abandonment in place of approximately 480 lineal feet of 15f1..storm sev~ler, reconsnuctionof two (2) catchbasins,c.onstruction of 160 lineal feet of 1511 reinforced concrete pipe storm se'wer, connection to existing stonn seweralong County R02.d .~ ........ ,. ,...., " '1 ;". 'j P' .". , , . : (..:::..xcelSlor bQ Ul~'V(3.rG.) ai"1C1 t..1e aSSOClalea reSl'Jxa'tl0D. \Vorl(. .waseo upon our V1SH \~TCn you anC1 trlt . :-::d,stir:.g p1.3ns provid2d by you3,nd n.t >'C.~.:l; ::-,2':'{Ue::T "/".:: e~\pec:ed constr'J.ction ;:OSI of me proposed improvements SllOUld oe 1';-1 che range 6f .330~ proposed sc:.ope of services and fees are as om:1L.'1ed below, lee IT), I 1 . } .... ., ... -i. ,1 ..,.. .. Phase Prelimina.r)! Desi gn. Survey CoUectData from .Cityand County \Vaste Limit and Ground 'rVater Quality Revie'w Design Plan and Specification Preparation Project Review 'With Owner and City /"'I E" , t..ost stlmate .,..... tee $2,250 55;11:'00 'f errr.i ts Nine Mile Creek Watershed Hermepin County Transportation Agencies Bidding DistribuTion or Documents ~3.,50{) $500 .An.swer Contractor Questions Recommendations w Owner Consrnlcuon . Construction Survey Staking On Site Observation (20 haul'S) S,2,750 T () tal $11)000 Sh"rr':(liott HendilCKSOil lnc, Oftlces located thrcughol.li the Upper Midwest vv. l.dp you .blan,.usign.,. a.T/d acAieve. E qua lOp port u n i ty Em pi Q:" e ( . f'I':' ,,; r~ P R~ 1 8, 2 0 0 1 5 : 3 3 PM C I T Y 0 F HOP KIN S ~ ~1r. James Justus, President. March. 30, 2001 Page 2 NU, U U 0 r". L . The abo\\~ fees lor'ltenls 1 t.hrough 4 include expenses an,d \vill be billed on a lw~np sum basis- 1 he above fee for Item No.. 5 is an estimate based on our eicperience for construction administration and on site project inspec1ion. The CQst of services for Item No.5 will be billed based on our acrual hourly rate sche.dule plus a multiplier. Should the scope of the project be expanded we would propose to accordingly. notifytheo'W11er and submit in. ~Titing. for approval any increase in the. contract amount. Proposed Proj ect Schedule Orde.r Plans and Specifications Preparation Approve Plarls and Specitlcations: Forward to Invited Biddel's Recei've Bids Begin Construction Construction Substantial Completion Final Completion April 16: 2001 l\1ay 4, 2001 ~'1ay 15, 2001 Jnne4, 2001 June 15, 2001 July 1,2001 \Ve will bill you monthly for services, expenses, and equipment. The estimated fee assumes prompt payment of our bills and the orderly and continuous progress of the project through construction. If rhere ate delays in the paymenr of CUI invoices, it~S a.gre~~d \Ve :::.re '~Etitled . (~ ('\ II ;:~ r~' :: ':-, ....f "r.";""',,, ~ I .\:<; ~ , ~_.., ...............' '.,~ ...."......-4......... '..~- ..... ,.~_, pay iI'1rerest at rhe rate of 1 S/o per month fur all amounts unpaid for thirty (30) days or more. Additionally, if the project is delayed a.T1d \ve encounter additional costs as tb.e result of the delays; it is agreed. we are entitled to additional fees. upon submission of the appropriatedocumenta.rion of extra costs. Wi; wil1start our services. promptly after receipt of your authorization andvvil1complete our services in acc.ordance vvith the endosed proposed schedule. If there are delays in the Project that are beyond our control, you agree to grant additional time to c.omplete the services. Your budgetary limitations for construction or the Project should be provided to us in v..'11ting at 2Jl early date. We Vrill endeavor. to work 'within those li.mitations, If you request, we "Vvill submit periOdic estimates of cost during the design phase or our services to give you our opinion of the probable cost of the Project V/here appropriate, if the estimated cost exceeds the budget~ \ve\\111 eitherre.questanadjus!mentinthe budget. orsuggesta revision in the extent or quality of the Project to.assistinbringing c.onstruction cost back 'rvithin. the budget.\V e do. not guaran-ceethatour opinions of probable.. ..c.onstruction. .cost.''lill...not.differ.. rnateriallYfx'()mnego.tiatedpric~sorbids~IfYO~~sh ... greater. assuranc.e..as.topro bable . construction. cost or if you wish ..formalestimates, an. independent costestinlator should be employed. ~':-~) u agree., to the fi.Jl:eSI .e~\.leIYtperrIlitt~;d ia~v1/. lirIllt~;E}{'.s 'f.oral . : ;.,"~. ,~ .. .'. ~:. '~ expenses~ or damages in any 'way related to u.l.e seriices provided under this AgreeTnent to the total sum paid toSEH for providing these services. .. , ;~ r' r;;. 1 8. L U () 1 ? : fH'M ell Y jH _ H U r i, 11\! ) i~ \.). UU (i ~ I. ~. " .r::>. ..1.1 . lOr. !vIr. James Justus, President Ivlarch.30,2001 Page 3 If con1:1icts arise during th.e per:foDDfulce of 'u1ese serVices, we agree they sb.all be submitted to non- binding mediation unless w'e have mutually agreedothenvise. This letter represents the entire understanding bervve.en you and us iJl respect of the Project and may only be modified in w1'iting signed by both of us. Ifitsatisfactorily sets forth your understanding of our agreement, please sign the enclosed copy of this letter. in the space provided below and return it ','_" .-:"..)1 :~ ~ r"'" _'~7".C i.... ~ __" ....;..;.c;-'........-..;. '.....-\ ;' .. <: ;~~rT l;rr~~n H."'i:~ ,.," ~ "\ r-:'!,.. "-' ........_ll'-~P "" tt ..:. ~e,l...cu .cK....QI... ...."l,... ~.~ DuaneD~Cnll'ner . Project Engineer..' I I ./ I ./ . ./ /) ..---~ .----'.J ~ /7 / d ....H 'JlSk1 J. I . .____..-../i...... ''''.f r// /1/ 1/ /.';/'., ,- \ " \. f'l /(/~.~ /.f.d. &..' I'.L. ~.' " .-."J. A ..~.;' . . .. / V'"'jr .77!/;f . ,". . r.' iY!ichael P. Foertsc~' ! Principal . Accepted by: Justus Lumber Company . '2.V' ..... . i'~1"/;''' 1-/"__\',. . Auxh.orized CHem: Signature ka ;;-\.:i",ii\Fr.?iC'C:!\~u~r..1.::\lu:::(~JO ~O 1 \?ro~I\r2..:1O: .