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IV.6. Amendment to Trailhead Agreement for the Hopkins Depot; Imihy Bean CITY OF HOPKINS City Council Report 2024-086 To: Honorable Mayor and Council Members Mike Mornson, City Manager From: PeggySue Imihy, AICP, Special Projects and Initiatives Manager Date: July 16, 2024 Subject: Amendment to Trailhead Agreement for the Depot _____________________________________________________________________ RECOMMENDED ACTION MOTION TO approve agreement amending the trailhead agreement for the Hopkins Depot. OVERVIEW In 2007, Hennepin County Regional Railroad Authority (“HCRRA”) entered into the Agreement with the City of Hopkins and the Three Rivers Park District (TRPD) for the use of the Depot building for community recreation and education purposes. In 2018, the Metropolitan Council acquired the Premises from HCRRA for the METRO Green Line Extension Project and entered into an agreement with the City and TRPD which is set to expire on June 30, 2026. The agreement did not expressly permit the City from sub-leasing the building to another operator should the City decide to do so. Given significant delays in LRT construction, and the City’s initial desire to bring in a third-party operator into the space, the City approached the Met Council about updating the agreement. This update will allow the City to bring in another operator, as well as amends the agreement to be extended to the first date of revenue service operations for LRT. This provides a more flexible and accurate timeline for the sunsetting of this agreement. Tonight Staff recommends approving the attached agreement, which will then be signed by the Met Council and TRPD. SUPPORTING INFORMATION • Amendment Number One to Permit Agreement (Trailhead Agreement Hopkins Depot 2007) Administration Council Contract No. 07I033 HCRRA Permit No. 73-32103 3 of 3 AMENDMENT NUMBER ONE to PERMIT AGREEMENT (TRAILHEAD AGREEMENT HOPKINS DEPOT 2007) This First Amendment (“First Amendment”) to Trailhead Agreement – Hopkins Depot 2007 (“Agreement”) is made effective April 1, 2024 (the “Effective Date”), by and between the City of Hopkins (“City”), Three Rivers Park District (“Park District”), and the Metropolitan Council (“Council”). RECITALS 1. In 2007, Hennepin County Regional Railroad Authority (“HCRRA”) entered into the Agreement with the City and the Park District for the construction of a trailhead and continued use of the “Premises,” as defined in HCRRA Contract No. 73-32103, for community recreation and education purposes. 2. The Park District completed all construction activities outlined in the Agreement and will not perform additional construction activities on the Premises. 3. The Agreement permits the City to use the Premises for community recreation and education purposes, and related public uses, including operation of the Depot Coffee-House. 4. In 2018, the Council acquired the Premises from HCRRA for the METRO Green Line Extension Project (“Project”). The acquisition included assignment by HCRRA and assumption by the Council of the Agreement. The Council has substantially completed Project construction activities on the Premises and will return the Premises to the Project pre-construction condition, subject to the provisions outlined herein. 5. The Council reserves the right to continue to use the Premises during the term of this First Amendment for Project activities. The Premises will be reconveyed by the Council to HCRRA no later than 30 days following revenue service operations of the Project. 6. The Agreement expires on June 30, 2026, and does not expressly permit subleasing of the coffee shop to a third-party operator. 7. The City has requested an extension of the Agreement termination date and consideration of subleasing the coffee shop operations to a third-party operator. The Council agrees to these changes subject to the provisions outlined herein. AGREEMENT 1. Section 6 is deleted, and the following is inserted in its place: Term. The term of this Agreement begins on September 18, 2007, and will terminate upon the Council’s conveyance of the Premises to HCRRA, unless terminated sooner pursuant to Section 7. 2. Section 8(C) is deleted, and the following is inserted in its place: Neither HCRRA nor the Council shall be liable to either the Park District or City or those claiming by, through or under them, for any injury, death, or property damage occurring in, on, or about the Premises, including, without limitation, loss or damage which may be sustained about or adjacent to the Premises by reason of the present or future condition of repair of the Premises, or for loss or damage arising from the actions or omissions of the Park District, City, sublessees, or other occupants. Neither HCRRA nor the Council shall be liable for any loss or damage which may be sustained by the Park District, City, sublessees, or others for any reason whatsoever, including but not limited to by reason of freezing, bursting, overflowing, or defect of any water, sewer, gas or steam pipes, closets, or sinks in, about or adjacent to the Premises, nor for any loss or damage which directly or indirectly may be sustained because of water, ice or snow from roof, skylights, trap doors or otherwise. 3. Section 9(A) is deleted, and the following is inserted in its place: Park District Liability and Indemnification. The Park District shall defend, indemnify and hold harmless HCRRA, City, and the Council, their officers, agents, representatives, volunteers, and employees from any liability, claims, cause of action, judgements, damages, losses, costs or expenses; including reasonable attorneys’ fees, resulting directly or indirectly from any act or omission of the Park District, its contractors, subcontractors, sublessees, anyone directly or indirectly employed by the Park District or its sublessees, customers or invitees or anyone for whose acts it may be liable, in the performance of this Agreement, including any and all claims arising from the use or condition of facilities or improvements constructed or maintained by the Park District, to the them current limits of liability applicable to the claim(s) in question for municipal corporations contained in Minnesota Statutes Chapter 466. The provisions of this Section 9 are not intended and shall not be interpreted to waive any of the Park District’s defenses, immunities or other limitations on liability granted by statute or common law, or otherwise create rights in third parties. 4. Section 9(B) is deleted, and the following is inserted in its place: City Liability and Indemnification. The City shall defend, indemnify and hold harmless HCRRA, Park District, and the Council, their officers, agents, representatives, volunteers, and employees from any liability, claims, cause of action, judgements, damages, losses, costs or expenses; including reasonable attorneys’ fees, resulting directly or indirectly from any act or omission of City, its contractors, subcontractors, sublessees, anyone directly or indirectly employed by the City or its sublessees, customers or invitees or anyone for whose acts it may be liable, in the performance of this Agreement, including any and all claims arising from the use or condition of facilities or improvements constructed or maintained by the City, to the them current limits of liability applicable to the claim(s) in question for municipal corporations contained in Minnesota Statutes Chapter 466. The provisions of this Section 9 are not intended and shall not be interpreted to waive any of the City’s defenses, immunities or other limitations on liability granted by statute or common law, or otherwise create rights in third parties. 5. Section 9(D) is deleted, and the following is inserted in its place: Council Contract No. 07I033 HCRRA Permit No. 73-32103 3 of 3 City Insurance. In order to protect HCRRA, the Council, and those listed above under Section 9(B), the City agrees at all times during the term of this Agreement to have and keep in force the following insurance coverages: Insurance Coverage Limits 1. Commercial General Liability on an occurrence basis with contractual liability coverage: $2,000,000 General Aggregate (to apply on a per location basis, ISO form CG 25 04) $2,000,000 Products-Completed Operations Aggregate $2,000,000 Personal and Advertising Injury $1,000,000 1(d) Each Occurrence – Combined Bodily Injury and Property Damage $1,000,000 2. Automobile Liability – Combined Single limit each occurrence for bodily injury and property damage covering owned, non-owned, and hired automobiles. $1,000,000 3. Workers’ Compensation and Employer’s Liability: a. Workers’ Compensation. If the contractor is based outside the state of Minnesota, coverage must apply to Minnesota laws. b. Employer’s Liability. Bodily injury by: Accident – Each Accident Disease – Policy Limit Disease – Each Employee Statutory $500,000 $500,000 $500,000 If the contractor is based outside the state of Minnesota, coverage must apply to Minnesota laws. a. Employer’s Liability. Bodily injury by: Accident – Each Accident Disease – Policy Limit Disease – Each Employee 6. Section 9(E) is deleted, and the following is inserted in its place: Optional Commercial Property Insurance. 1. City and Park District may, at their respective options, purchase insurance to cover improvements to the Depot, and any personal property located on the Premises. In no event shall HCRRA or the Council be liable for theft, damage to or loss of property belonging to or in possession of City or Park District, their officers agents, employees, contractors, licensees, or invitees, whether or not City or Park District is insured. Insurance on the personal property of City or Park District shall include a waiver of subrogation clause, if the insurance does not allow the insured to waive rights of recovery against others prior to loss. 2. City and Park District may, at their respective options, purchase business income, business interruption, extra expenses or similar coverage as part of this commercial property insurance, and in no event shall HCRRA or the Council be liable for any business interruption or other consequential loss sustained by City, Park District or the Depot Coffee House, whether or not it is insured. 3. HCRRA, the Council, City and Park District hereby waive any recovery of damages against each other (including their employees, officers, directors, agents, or representatives) for loss or damage to the building, improvements and betterments, fixtures, equipment, and any other personal property to the extent covered by the commercial property insurance. If any commercial property insurance purchased by City or Park District does not allow the insured to waive rights of recovery against others prior to loss, City or Park District, as the case may be, shall cause the policy to be enforced with a waiver of subrogation as required above. An umbrella or excess liability policy over primary liability coverages is an acceptable method to provide the required liability insurance limits. The above establishes minimum insurance requirements. It is the sole responsibility of the City and Park District, respectively, to determine the need for and to procure additional insurance that may be needed in connection with this Agreement. All insurance policies shall be open to inspection by HCRRA and/or Council, and copies of insurance policies shall be submitted to HCRRA and/or Council upon written request. City and Park District shall obtain the required insurance and file with HCRRA and the Council a properly executed certificate(s) of insurance which clearly evidences required insurance overages. The certificate(s) shall: Name Hennepin County Regional Railroad Authority and the Metropolitan Council as certificate holders and as additional insureds for the Commercial General Liability coverage with respect to operations covered under the Lease (as defined in the Permit Agreement). Name Hennepin County Regional Railroad Authority and the Metropolitan Council as insureds for the Commercial Property Insurance coverage. Show that the Hennepin County Regional Railroad Authority and the Metropolitan Council will receive 30 days' prior written notice in the event of cancellation, nonrenewal, or material change in any described policies. City and Park District shall furnish to HCRRA and the Council updated certificates during the term of this Lease as insurance policies expire. If the City or Park District fails to furnish proof of insurance coverages, HCRRA and/or the Council Council Contract No. 07I033 HCRRA Permit No. 73-32103 3 of 3 may pursue any rights or remedy allowed under this Agreement and First Amendment, law, equity, and/or statute. 7. Section 10 is deleted, and the following is inserted in its place: Notice. Any and all notices and demands by any Party hereto to any other Party, required or desired to be given hereunder shall be in writing and shall be validly given or made only if (a) personally delivered with a receipt obtained from the person receiving the notice, (b) via email followed by mail notice, or (c) if made by Federal Express or other similar delivery service keeping records of deliveries and attempted deliveries. Any notice required or permitted shall properly addressed as follows: If to City: City Manager City of Hopkins 1010 First Street South Hopkin, MN 55434 If to Park District: Superintendent Three Rivers Park District 3000 Xenium Lane Plymouth, MN 55441-1248 If to HCRRA: Executive Director Hennepin County Regional Railroad Authority A-2300, Government Center 300 South Sixth Street Minneapolis, MN 55487 If to the Council: Regional Administrator Metropolitan Council 390 Robert Street N. St. Paul, MN 55101 8. Section 13 is deleted, and the following is inserted in its place: Assignment and Subleasing or Sub-permitting. The Benefits and obligations of this Agreement shall extend to and shall bind the heirs, administrators, executors, leases, successors or assigns of the Parties hereto, but no interest in this Agreement shall be assigned, nor said Premises or any part thereof be sub-permitted, used or occupied by any Party other than Park District and City, without the express written permission of the Council. The Council reserves the right to review and approve the terms of subleases or sub-permits. 9. Section 14(b) is deleted, and the following is inserted in its place: City shall not create or permit any condition of the Premises that could present a threat to human health or to the environment. City shall bear the expense of all practices, or work, preventative, investigative or remedial, which may be required because of any conditions of the Premises introduced by City, its sub-permittees or invitees during City's period of use, including conditions introduced by City, sub- permittees, or invitees which affect other lands. City expressly agrees that the obligations it hereby assumes shall survive cancellation of this Agreement. 10. Section 14(c) is deleted, and the following is inserted in its place: HCRRA and the Council shall have the right, but not the duty, to enter upon the Premises from time to time as set forth below to inspect the Premises for environmental contamination and in the course thereof to conduct soil and groundwater testing and to perform environmental investigation, remediation or mitigation. HCRRA or the Council may enter the Premises if HCRRA or the Council reasonably believes that an emergency exists on the Premises. HCRRA or the Council shall conduct' any such inspections or testing so as to minimize interference with Park District and City operations. 11. Section 16 is deleted, and the following is inserted in its place: Conditional Premises Inspection. Park District and City herein, accept the Premises in an "AS IS" condition with no express or implied representations or warranties by HCRRA or the Council as to the physical condition or fitness or suitability for any particular purpose, express or implied. Park District and City are responsible for and has had ample opportunity to inspect the Premises, are familiar with-the same, and have determined to their respective satisfaction the fitness of the Premises for their respective intended uses. 12. Section 19 is deleted, and the following is inserted in its place: Assumption and Acceptance. Park District and City acknowledge and assume all risks associated with the proximity of the Premises to the light rail and railroad right of way adjacent to the Premises and to any light rail and railroad operations thereon including, but not limited to, operations of the Council and the Twin Cities & Western Railroad Company. City and Park District understand that the Premises is a former railroad right of way and may contain contamination that may be hazardous to human health. City and Park District accept the Premises with the full knowledge that this potential hazard may exist. The City and Park District shall not conduct any activities within 50 feet of the freight rail corridor. 13. Counterparts. This First Amendment may be executed in counterparts, each of which shall be deemed an original, and which together shall constitute a single, integrated Agreement. IN WITNESS WHEREOF, the Parties hereto have caused this First Amendment to be entered into as of the Effective Date. Council Contract No. 07I033 HCRRA Permit No. 73-32103 3 of 3 CITY OF HOPKINS By: _________________________ Printed Name: Title: METROPOLITAN COUNCIL By: _________________________ Printed Name: Title: Regional Administrator THREE RIVERS PARK DISTRICT By: _________________________ Printed Name: Title: