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CR 06-021 Updated AUAR, SuperValu North Annex Property CITY OF m February 2, 2006 HOPKINS Council Report 2006-021 UPDATED AUAR, SUPERV ALU NORTH ANNEX PROPERTY Proposed Action Staff recommends approval of the following motion: adopt Resolution 2006-009, a resolution of the Citv of Hopkins ordering preparation of an update to the Medica Comorate Office Development Alternative Urban Areawide Review. With this this action staff would execute the attached contract with RLK Associates, Ltd., to complete this work. Overview In 2001 an alternative urban areawide review (AUAR) was completed for the North Annex property to facilitate the Medica project. This environmental review was necessary because of the size of the proj ect to meet statutory requirements. The Opus project now under consideration for the North Annex property will require that a previously prepared AUAR document be updated. The update will analyze various project site impact issues relating to the Opus project. RLK Associates, Ltd., completed the original AUAR document, and staff is proposing that they complete the update. As the City is identified as the regulating governmental unit (RGU) for environmental review, the contract needs to be with the City. Opus Corporation, however, has agreed to pay all costs in conjunction with this study. Once the document has been completed there will be a public review and comment period. Supportin!! Documents . Memo from Faegre & Benson dated January 23, 2006 . Resolution 2006-009 . Proposal from RLK Associates, Ltd.,dated February 1,2006 . Letter from Faegre & Benson dated February I, 2006 FAEGRE &; BENSON '" MEMORANDUM To: David Menke James Kerrigan Walter Rockenstein FROM: SUBJECT: January 23, 2006 NEED To UPDATE THE MEDICA AUAR DATE: After reviewing the Medica Corporate Office Development Alternative Urban Areawide Review (the "Medica AUAR"), I recommend that the City of Hopkins (the "City") update the Medica AUAR in connection with the proposal of Opus Northwest, L.L.c. ("Opus") to redevelop the SuperValu north annex site (the "SuperValu Site") with a predominately office development that could include some medical manufacturing and research and development uses, a hotel, and ancillary retail (the "Opus Project"). Reasons Supporting Update The Medica AUAR should be updated for the following reasons, First, the passage of time, recent changes to roadways near the SuperValu Site, and Opus's intention to include other uses in addition to office space in the Opus Project suggest that the traffic study prepared for the Medica AUAR may no longer accurately portray the traffic impacts of developing this property, Second, the Opus Project may include other changes from the assumptions in the Medica AUAR that warrant additional analysis, For example, Opus is suggesting changes to the storm water management system compared to the system proposed by Medica! AlIina Health Systerns and studied in the Medica AUAR, Third, the Medica AUAR's period of validity ends on August 22,2006, which could negatively impact the Opus Project timeline. Opus expects to have all its fmal governmental approvals before August 22nd. But any delay beyond that date on even a single governmental approval would stall the project, because any delayed final governmental approval could not be issued until the Medica AUAR was updated to extend its period of validity another five years, Fourth, the Medica AUAR should be updated to include land not encompassed in the Medica AUAR study area, Specifically, the Medica AUAR study area should be amended to include the 3.3 acre parcel north of Second Street, N,E, (the "North Parcel") and the 0.5 acre parcel at 106 Jackson Avenue (the "Jackson Parcel"), The North Parcel was not included because Medica! Allina Health Systems did not propose any development there. However Opus intends to locate storm water management facilities on the North Parcel and accommodate City snow storage, The Jackson Parcel was not included because it was not owned by SuperValu, and no developrnent was planned there, Opus has an option on the Jackson Parcel, however, and intends to develop it as part of the Opus Project. Commencing The AUAR Update RLK-Kuusisto, Ltd., the firm that prepared the Medica AUAR, is prepared to undertake the update including the necessary traffic analysis, To proceed, the City should authorize updating the Medica AUAR, retain RLK-Kuusisto, Ltd, as the consultant to perform the work, and provide that Opus will pay the update costs. W.H.R. II Ml:1279354.03 -2- CITY OF HOPKINS Hennepin County, Minnesota RESOLUTION NO. 2006-009 A RESOLUTION OF THE CITY OF HOPKINS ORDERING PREPARATION OF AN UPDATE TO THE MEDICA CORPORATE OFFICE DEVELOPMENT ALTERNATIVE URBAN AREAWIDE REVIEW WHEREAS, in 2001 Medica!Allina Health Systems proposed to develop a corporate headquarters for Medica on the SuperValu North Annex Site (Site); WHEREAS, in response to this proposal, the Hopkins City Council ordered preparation of the Medica Corporate Office Development Alternative Urban Areawide Review (AUAR) for the Site; WHEREAS, on August 21,2001, the Hopkins City Council accepted the AUAR for the proposed Medica corporate headquarters project; WHEREAS, the Medica!Allina Health Systems abandoned the project and the Site remains undeveloped; WHEREAS, Opus Northwest, L.L.C. (Opus) now proposes to develop the Site primarily for office space but also with uses not considered in the AUAR, including some medical manufacturing and research and development uses, a hotel, and ancillary retail (Opus Proj ect); WHEREAS, Opus anticipates development and storm water management facilities on parcels not included in the study area ofthe AUAR; WHEREAS, major street improvements have been constructed next to the Site since acceptance of the AUAR; and WHEREAS, the AUAR must be updated to remain in force after August 21, 2006. WHEREAS, Opus has requested that the AUAR be updated and has agreed to pay the cost of preparing the update. NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Hopkins hereby orders the preparation of an update to the AUAR that addresses the Opus Project and conforms to all requirements for an AUAR update. BE IT FURTHER RESOLVED, the City Council of the City of Hopkins directs City staff to negotiate and enter into a contract with RLK Incorporated to prepare the AUAR update. BE IT FURTHER RESOLVED, that the all costs for the AUAR update be charged to Opus. Adopted by the Hopkins City Council this 7th day of February 2006. Eugene J. Maxwell, Mayor ATTEST: Terry Obermaier, City Clerk 2 ~ RI.K Engineering. Landscape Architecture. Planning. Surveying. Traffic ( INCORPORATED) . \. J Creatmg extraordinary .............., Com munifies February I, 2006 Mr. Jim Kerrigan City of Hopkins 1010 First Street South Hopkins, MN 55343 Re: Proposal for Professional Services AUAR Update and Traffic Study Opus Office Development Hopkins, MN Dear Mr. Kerrigan: RLK Incorporated (RLK) is pleased to provide this proposal to City of Hopkins for the Alternate Areawide Urban Review (AUAR) update and Traffic Study for the SUPERV ALU North Annex site located in Hopkins, Minnesota. RLK managed the effort to prepare the original AUAR documeot and was an integral part of the original desigo team that developed and obtained approval of the preliminary plans and traffic analysis, as well as the ageocy review and approval of the AUAR environmental documeotation during the initial scoping process that took place in 2001. RLK's scope of services is based on discussions with Rocky Rockenstein of Faegre & Benson and a review of the previous Medica AUAR document, 'as it will be impacted by the SUPERV ALU/Opus Veoture concept site plan schemes dated December 2005. This AUAR proposal is provided in . conjunction with the proposal for site engineering desigo work provided to Opus for this project dated November 7, 2005. It is RLK's understanding that Opus will reimburse the City for all costs associated with this contract. Services for the completion of the traffic analysis, report preparation, associated AUAR responses, agency coordination and meetings are broken out separately in the attached AUAR proposal. Services will be billed on an hourly basis not to exceed the below estimated fees: Task 1 -AUAR Update and Coordination: I. I Project Management and Coordination 1.2 AUAR Update Responses, Documeot Preparation and Exhibits 1.3 Updated Mitigation Plan 1.4 Responses to Comments after Public Review Period I Coordination for Approval 1.5 Ageocy Neighborhood and Project Team Meetings Subtotal Task 1 . Estimated Fee $ 2,500.00 Estimated Fee $ 8,600.00 Estimated Fee $ 5,000.00 Estimated Fee $ 5,000.00 Estimated Fee $ 9,300.00 $ 30,400.00 Offices: Hibbing . Minnetonka . Ham Lake . Twin Polis (952)933-0972 . 6110 Blue Circle Drive. Suite 100 . Minnetonka, MN 55343 . FAX (952) 933-1153 Equal Opportunity Employer Task 2 - Traffic Study I Update: 2.1 Aitalysis I Preparation of Traffic Report 2.2 Response to AUAR Update Traffic Items and Updated Mitigation Plan 2.3 Response to Comments After Public Review Period and Coordination for Approval I Additional Meetings 2.4 Traffic Counts 2.5 Agency, Neighborhood and Project Team Meetings Subtotai Task 2 Estimated Fee $ 18,000.00 Estimated Fee $ 2,000.00 Range Fee $ 5,000.00 - 10,000.00 Estimated Fee $ 2,000.00 Estimated Fee $ 5,000.00 $ 32,000.00 - 37,000~00 Estimated Fee $ 7,500.00 $ 7,500.00 Estimated Fee $ Cost Plus 15% Estimated Fee $ 69,900.00 - 74,900.00 ' Task 3 Air and Noise Evaluation 3.1 Air and Noise Evaluation (by Subconsultant) Subtotal Task 3 Task 4 - Reimbursable Exp'enses 4.1 Reimbursable Expenses Total Estimated Fee (exclusive of hourly items and expenses) , RLK appreciates the opportUnity to provide this proposal to the City of Hopkins for the proposed AUAR update and Traffic Study for the proposed OPUS Office Development. We look forward to the February 7,2006 Authorization to Proceed from the City Council on the AUAR. Please refer to the assumptions for a complete understandIDg of this proposal. Please do not hesitate to contact our office (952-933-0972) with any questions you may have or if additional information is needed. Sincerely, RLK Incorporated ~J-{0~ ~~ Jolm D'ietrich, ASLA Principal Landscape Architect Michele Jackson Caron, PE Senior Professional Engineer ~roposal for Professional Service OPUS Office Development - Hopkins. MN February I, 2006 poge 2 of 5 RLK Incorporated (RLK) is pleased to submit a proposal to the City of Hopkins for preparation of the AUAR Update and Traffic Study for the proposed SUPERV ALU North Annex site office development located in Hopkins, Minnesota. For the purpose of this proposal, "CLIENT" below refers to Opus. Based on our review of the concept plan provided by you and the previous AUAR prepared by RLK, the attached scope of services represents estimated fees to complete the project through to AUAR Update completion. . Assumptions I. Unless RLK is directed otherwise, CLIENT will be responsible for all application forms and permit application fees required by the City and any other agencies involved. RLK documents will be prepared with agency requirements in mind. 2. CLIENT will provide any other completed studies, reports, plans, plats or data that may be of assistance or necessary for RLK to perform under this Agreement. RLK has the right to rely on information contained in documents provided by CLIENT. 3. Survey services are to be provided by others, including topographic and boundary survey, preliminary plat and final platting services, as well as any easement descriptions or vacations required. 4. RLK assumes the engineered, dimensioned site plan is in AutoCAD format and will be provided by CLIENT. If requested, RLK will provide a fee for site planning preparation if CLIENT will not be providing the required site plan. 5. This proposal assumes that the preliminary site plan by CLIENT will be available prior to beginning work on the AUAR update and traffic study. RLK will utilize the preliminary engineering design to be prepared in the RLK scope of services for site development.' 6. This proposal does not include off site design of public roadways or utilities. 7. RLK has included fe.es to incorporate comments related to wetlands and impacts that may be located on the "chimney" parcel. Wetland permitting, delineation, or mitigation plans are not included in this scope of work. 8. RLK will address the changes in the existing conditions due to the recent construction of the Excelsior Boulevard improvements and associated utility infrastructure. This scope of work does not include water main modeling of the City of Hopkins system. Agency requirements due to the new site plan and any new permitting criteria will be verified and changes will be identified in the AUAR update. Numerous sections will require updating due to the proposed use of the "chimney" parcel and associated ditch drainage analysis. 9. A scope of work task has been included for weekly team meetings over a six (6) week period, two neighborhood meetings and attendance/ presentation at two Planning Commission Meetings and two City Council meetings. As requested, RLK will coordinate and attend these meetings by CLIENT on an hourly basis according to the rate schedule included in the contract. . Proposal for Professional Service opus Office Developmenl- Hopkins. MN February 1, 2006 Page 3 of 5 10. RLK will prepare the draft AUAR update for review and comment by Faegre & Benson and CLIENT. The draft will be revised to address comments for review by City of Hopkins. A final draft will be prepared based on City comments; the final draft AUAR will be provided electronically to Faegre & Benson for reproduction and distnbution as required by the Environmental Quality Board (EQB) EA W J)istribution List. The AUAR Update will include an update to the original AUAR Mitigation Plan. II. Fees are broken down between the AUAR update and traffic study services. Additionally, if required based on the traffic study, a vehicle noise and air evaluation will be completed and is broken out as a separate item. This analysis will be provided by Liesch Associates, as a subconsultant to RLK. A background carbon monoxide study is not included in this scope of work. If required, additional fees will be requested. . 12. RLK will use the soils report information provided by the CLIENT. CLIENT will provide any additionahoils information required and will be responsible for all costs and expenses for geoteclmical information. 13. Traffic engineering services are proposed separately from the AUAR update services. Services include traffic counts at the ten intersections identified in the original AUAR traffic study. The traffic study will confirm the operations of the recently constructed roadway system that was analyzed as a proposed condition in the original AUAR. Existing, no-build, build (5-year) and future build (20-year) conditions will be analyzed, based on the CLIENT's site plan. Trip generation will be developed and regional distribution will be modeled. A traffic study will be prepared and the associated response to the AUAR Question 21 will be prepared. lU.K will address agency comments, ,and coordinate to resolve issues on behalf of CLIENT and the City of Hopkins. The traffic services scope of work includes meetings to be attended by the traffic engineer including neighborhood meetings, agency meetings, City Planning Commission meetings. 14. If CLIENT prepares the preliminary and final site plan, RLK will assume the dimension of parking stalls, drive isles, setbacks and all curve and radii will meet the City requirements. 15. Expenses will be invoiced per the conditiqns of the Agreement Between Architect and Consultant executed by Opus imd RLK, dated July 15,2005. ATTACHMENTS Attachment A and B (Profess,ional Services Rate Schedule) are incorporated into this Agreement by reference as if fully set forth herein. COMPLETE AGREEMENT This Agreement states the entire agreement between RLK and CLIENT, merges all prior negotiations, agreements and understandings, if any exist, and states in full all representations and warranties that have induced this Agreement, there being no representations or warranties other than those herein stated. Each party hereto agrees that in dealings with third parties no contrary representations will be made. AMENDMENT This Agreement may be altered or amended only by a writing signed by RLK and CLIENT. Proposal for Professional Service OPUS Offiee Development - Hopkins. MN February 1, 2006 Page 4 of 5 COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which will constitute one and the same instrument. CHOICE OF LAW The laws of the State of Minnesota will govern this Agreement. SEVERABILITY The invalidity or partial invalidity of any portion of this Agreement will not invalidate the remainder thereof, and said remainder will remain in full force and effect. AUTHORIZATION OF SIGNATURES RLK and CLIENT represent and warrant that each has taken all necessary corporate, legal or other actions to duly authorize and approve the making and performance of this Agreement and that the person signing this Agreement on theirrespective behalf is duly authorized to do so. The Client and RLK Incorporated Aaree as Set Forth Above Client: City of Hopkins 10 I 0 First Street Sout/l Hopkins, MN 55343 Signature RLK Incorporated: RLK Incorporated 61 10 Blue Circle Drive, Suite 100 MiImetonka, MN 55343 d,I~\?~2JJ John Dietrich, ASLA . Principal LalJdscape Architect Title z/;)o & Date ~~ Date Michele Jackson Caron, PE Senior Professional Engineer Attachment: RLK Standard Attachment A - General Conditions RLK Standard Attachment B - Hourly Rate Schedule Proposal for Professional Service OPUS Office Development- Hopkins. MN February I. 2006 Page 5 of.5 ATTACHMENT A - GENERAL CONDITIONS The infonnation contained in the letter proposal accompanying this Attachment A may be reasonably relied upon by RLK- Knusisto, Ltd. (RLK) and CLIENT in determining RLK's scope of work, the schedule for perfonning the work and the compensation to be paid to RLK. However, both parties recognize that such information may Dot be complete or may change and that the CLIENT and RLK shall negotiate appropriate adjustments in schedule, compensation and services in accordance with the tenns and conditions contained in this Attachment A. I. DEFINITIONS The following words and phrases shall have the meaning indicated below: A. Agreement means RLK's letter proposalj Attachment A- General Conditions; Attachment B~ Professional Services Rate Schedule; and any Design Change Notice or other writing signed by both parties indicating tbat it is an amendment or addendum to this Agreement. B. Certificate for Payment means a representation by RLK or other person performing construction administration services that the Work has progressed to the point indicated in the Contractor's application for payment, subject to (1) an evaluation of the Work for confonnance with contract documents; (2) results of subsequent tests and/or inspections; (3) correction of minor defects and (4) any other specific qualifications. C. Construction Phase means that part of the work after the construction contract is awarded and before substantial completion. D. Contractor means any person or entity employed to perform Work on the Project. E. Hazardous Environmental Condition means any condition subject 'to regulations and controls of the Minnesota Pollution Control Agency, or that is defined in the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), or the existence of any other potentially hazardous or toxic materials or conditions. F. Substantial Completion means that the Work on the project is sufficiently complete in accordance with the contract documents so that the CLIENT can occupy or utilize the Work for its intended use. G. Work means those services, materials, labor or supplies used to complete the Project. H. Documents means any written,printed, typed, recorded or graphic matter, however produced, reproducedj or stored, including but not limited to electronic data, photographs and maps. I. Construction Administration or Construction Phase Services include construction observation andspecifically exclude inspection of construction. II. CLIENT'S RESPONSmlLITIES In addition to other responsibilities of CLIENT as set forth in this Agreement, CUENf shall: A. Provide full information in a timely manner regarding requirements for and limitations on the Project. B. Designate a representative who shall be authorized to act on the CLIENT's behalf with respect to the Project. C. Examine all alternate solutions, smdies, reports, sketches, drawings, specifications, proposals. and other documents presented by RLK (including obtaining advice of an attorney, insurance counselor, and other advisors or consultants as CLIENT deems appropriate with respect to such examination) and render in writing timely decisions pertaining thereto. D. Provide the services of an independent testing firm to perform all inspections, tests, and approvals of samples, materials, and equipment required by Jawor the Contract Documents, or to evaluate the performance of materials, equipment, and facilities of CLIENT, prior to their incorporation into the work. with appropriate professional interpretation thereof. E. Furnish all legal, insurance and accounting services, including auditing services that may be reasonably necessary at any time for the Project or to meet CLIENT's needs or interests. F. Submit to any governmental or permitting authority all necessary applications for permits or other required submissions. G. Provide prompt written notice to RLK if the CLIENT or any representative. contractor or agent of CLIENT becomes aware of any fault, defect or non-confonnance in the Project, including any errors, omissions or inconsistencies in RLK's work. H. Give prompt written notice to RLK whenever CLIENT observes or otherwise becomes aware of a Hazardous Environmental Condition or of any other development that affects the scope or time of performance of RLK's services. I. Warrant that funds are or will be available for prompt payments to RLK under the terms of this Agreement. RLK shall be entitled to full payment for completed work regardless of the timing or the CLIENT's failure to receive financing or governmental or other approvals. RLK is not a co.venturer with the CLIENT and the payment of fees and reimbursable expenses is not at risk. III. RLK'. RESPONSIBILITIES A. RLK shall review the laws, codes and regulations applicable to RLK's services. B. RLK shall be entitled to rely on the accuracy and completeness of all requirements, programs, instructions, reports, data, services and information furnished by the CLIENT. RLK may use such information in performing or furnishing services under this Agreement and CLIENT will defend, indemnify and hold harmless RLK for any errors or omissions in such information. RLK shall provide prompt written notice to the CLIENT if RLK becomes aware of any errors, omissions, or inconsistencies in such information. C. RLK shall be responsible for the technical accuracy of its services and documents resulting therefrom. To the extent that any deficiencies are present or discovered, RLK shall correct such deficiencies without additional compensation except to the extent such action is directly attributable to deficiencies in CLlENT.fumished information. Pagelof5 ~ RLK. , Kc:.::;;" , ATTACHMENT A - GENERAL CONDITIONS D. RLK shall submit the deliverables required under the Agreement at intervals appropriate to the design or development process for purposes of evaluation and approval by the CLIENT. RLK shall be entitled to rely on approvals received from CLIENT in further development of the designs. E. RLK will provide one single review and response to any governmental or pennitting authority's comments or requested revisions to RLK's deliverables required under the Agreement. F. RLK will schedule the work upon receipt of the executed Agreement. Work on subsequent phases of the Project will begin upon receipt of approval from theCLIENT and upon receipt of the full balance of fees due for work completed to the date of the CLIENT's approval. G. The standard of care for all professional consulting and related services perfonned or furnished by RLK under this Agreement will be the care and skill ordinarily used by members ofRLK's profession practicing under similar circumstances at the same time and in the same locality. RLK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT OR OTIffiRWISE, IN CONNECTION WITH RLK'S SERVICES. IV. CONSTRUCTION ADMINISTRATION SERVICES A. The Letter Proposal or Design Change Notice shall include the parties agreement about whether or not RLK win provide construction administration seIVices. If required as part of the Agreement, RLK's responsibilities to provide construction administration seIVices commences with the award of the initial contract for construction and terminates at the issuance to the CLIENT of the final Certificate for Payment RLK shall be entitled to additional compensation if construction administration services extend 60 days after the date of Substantial Completion of the work. B. Should CLIENT provide Construction Phase services with either CLIENT's representatives or a third party, RLI('s services under this Agreement will be considered to be completed upon completion of the Final Design Phase or Bidding or Negotiating Phase. C. It is understood and agreed that if RLK's services under this Agreement do not include Project Observation, or review of the Contractor's performance, or any other Construction Phase sClVices, and that such services will be provided by CLIENT, then CLIENT assumes all responsibility for interpretation of the Contract Documents and for construction observation or review and waives any claims against RLK that may be in any way connected thereto. D. During the Construction Phase, RLK shall not supervise, direct, or have control over Contractor's work, nor shall RLK have authority over or responsibility for the means, methods, techniques, sequences. or procedures of construction selected by Contractor, for safety precautions and programs incident to the Contractor's work in progress, nor for any failure of Contractor to comply with Laws and Regulations applicable to Contractor's furnishing and performing the Work. E. RLK neither guarantees the perfonnance of any Contractor nor assumes responsibility for any Contractor's failure to furnish and perfonn the Work in accordance with the Contract Documents or any governmental rule, law or regulation. F. RLK shall not be responsible for the acts or omissions of any Contractor(s), subcontractor or supplier, or of any of the Contractor's agents or employees or anyotherpersons (except RLK's own employees) at the Site or otherwise furniShing or perfonning any of the Contractor's work; or for any decision made on interpretations or clarifications of the Contract Documents given by CLIENT without consultation and advice cfRLK. G. RLK will review requests by the Contractor for additional infonnation about the contract documents. Any request for information shall include a detailed written statement that indicates the specific drawings or specification on which clarification is sought and the nature of the clarification requested. If deemed appropriate by RLK, it will prepare, reproduce and distribute supplemental drawings and specifications in response to requests for infonnation. H. If included in the scope of the selVices, RLK shall review and approve or take other appropriate action upon the Contractor's submittals such as shop drawings, product data and samples, but only for the limited purpose of checking for conformance with information given in the design concept RLK's action shall be taken with reasonable promptness while allowing sufficient time in RLK's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of detennining the accuracy and completeness of other details such as dimensions and quantities, or substantiating instructions for installation or perfonnance of equipment or systems, all of which remain the responsibility of the Contractor. RLI('s review shall not constitute approval of safety precautions or any construction means, methods, techniques, sequences or procedures. RLK's approval ofa specific item shall not constitute approval of an assembly of which the item is a component. 1. If the CLIENT requests that RLK execute certificates, the proposed language of such certificate shall be submitted to RLK for review at least 14 days prior to the requested dates of execution. RLK shall not be required to execute certificates that would require lmowledge, services or responsibilities be)()nd tbe scope of this Agreement. V. COSTS OF THE WORK A. RLK's opinions of probable Construction Cost provided for herein are to be made on the basis of RLK's experience and qualifications and represent RLK's best judgment as an experienced and qualified professional generally familiar with the industry. However, since RLK has no control over the cost of labor, materials, equipment, or services furnished by others, or over the Contractor's methods of detennining prices, or over competitive bidding or market conditions, RLK cannot Page 2 of5 ~ RLK '"-c::;7 . ATTACHMENT A - GENERAL CONDITIONS and does not guarantee that proposals, bids, or actual Construction Cost will not vary from opinions of probable Construction Cost prepared by RLK. If CLIENT wishes greater assurance as to probable Construction Cost, CUENT shall employ an independent cost estimator. B. RLK's estimates for the amoWltoffees and expenses for its services are based on the best information available to RLK and is not a guaranteed maximum price. In addition, changes in the scope of the services, schedule, budget or occurrence of unforeseen conditions or circumstances, will result in adjustments to RLK's estimates for its fees. VI. USE OF DOCUMENTS A. All drawings, specifications or other documents prepared by RLK for the Project are instruments ofRLK's service, and RLK shall retain ownership, and all common law, statutory or other reserved rights, including copyright and including the right of reuse at the discretion of RLK, whether or not the Project is completed. B. Copies of Documents that may be relied upon by CLIENT are limited to the printed copies (also known as hard copies) that are signed or sealed by RLK. Files in electronic media fonnat of text, data,graphics. or of other types that are furnished by RLK to CUENT are only for convenience of CLIENT. Any conclusion or information obtained or derived from such electronic ftles will be at the user's sole risk. C. When transferring documents in electronic media format, RLK makes no representations as to long-term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems. or computer hardware differing from those used by RLK at the beginning of this Project. D. CLIENT may make and retain copies of Documents for infonnation and reference in connection with use on the Project by CLIENT. Such Documents are not intended. or represented to be suitable for reuse by CLIENT or others on extensions of the Project or on any other project. Any such reuse or modification without written verification or adaptation by RLK, as appropriate for the specific purpose intended, will be at CLIENT's sole risk and without liability or legal exposure to RLK or to RLK's ConsnItants. CLIENT sball defend, indemnify and hnld harmless RLK and RLK's Consultants from all claims, damages, losses, and expenses, including attorneys' fees arising out of or resulting therefrom. E. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. F. RLK shall have the right to include photographs, drawings and information on the Project in public relations and marketing materials; and to submit photographs, drawings and infonnation to design competitions and publications. However, RLK's materials shall not include the CLIENT's confidential or proprietary information if the CLIENT has previously advised RLK in writing of the specific information considered by the CLIENT to be coofideotial or proprietary. CLIENT may include information about RLK in promotional materials. advertising and other display of the project plans and information if the Project is built and finished substantially as designed. VII. SUCCESSORS, ASSIGNS, AND BENEFICIARIES A. CLIENT and RLK each are hereby bonnd and the partners, successors. executors, administrators and legal representatives of CLIENT and RLK are hereby bound to the other party to this Agreement and to the partners, successors, executors, administrators and legal representatives (and said assigns) of such other party, in respect of all covenants. agreements and obligations of this Agreement. B. Neither CLIENT nor RLK may assign, sublet, or transfer any rights under or interest (including, but without limitatio~ moneys that are due or may become due) in this Agreement without the written consent of the other, except to the extent that any assignment, subletting, or transfer is mandated or restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. C. Unless expressly provided otherwise in this Agreement: 1. Nothing in this Agreement shall be construed to create. impose, or give rise to any duty owed by CLIENT or RLK to any Contractor, Contractor's subcontractor. supplier, other individual or entity, or to any surety for or employee of any of them. 2. All duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of CLIENT and RLK and not for the benefit of any other party. VIll. HAZARDOUS ENVIRONMENTAL CONDITIONS A. Both parties acknowledge that RLK's scope of services does not include any services related to a Hazardous Environmental Condition. In the event RLK or any other party encounters a Hazardous Environmental Condition, RLK may, at its option and without liability for consequential or any other damages, suspend perfonnance of services on the portion of the Project affected thereby until CLIENT: (i) retains appropriate specialist consultant(s) or contractor(s) to identify and. as appropriate, abate, remediate. or remove the Hazardous Environmental Condition; and (ii) warrants that the Site is in full compliance with applicable Laws and Regulations. B. CLIENT acknowledges that RLK is performing professional services for CLIENT and that RLK is not and shall not be required to become an "arranger," "operator," "generator," or "transporter" of hazardous substances, as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), which are or may be enconntered at or near the Site in connection with RLK's activities under this Agreement. Page 3 of5 ~ RLK. 'K~'" ATTACHMENT A - GENERAL CONDITIONS IX. ALLOCATION OF RISKS A. To the fullest extent pemtitted by law, RLK shall indemnity and hold banDless CLIENT, CLIENT's officers, directors, partners, and employees from and against any and all costs, losses, and damages (including but not limited to all fees and charges of consultants, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused solely by the negligent acts or omissions of RLK or RLK's officers, directors, partners, employees, and RLK's Consultants in the perfonnance and furnishing of RLK's services under this Agreement B. To the fullest extent permitted by law, CLIENT shall indemnify and hold hannless RLK, RLK's officers, directors, partners. employees, and RLK's Consultants from and against any and all costs. losses, and damages (including but not limited to all fees and charges of consultants, architects, attorneys, and other professionals, and all court or arbitration or other dispute resolution costs) caused solely by the negligent acts or omissions of CLIENT or CLIENTs officers, directors, partners, employees, and CLIENT's consultants with respect to this Agreement or the Project. C. To the fullest extent permitted by law, RLK's total liability to CLIENT and anyone claiming by, through. or under CLIENT for any cost, loss, or damages caused in part by the negligence of RLK and in part by the negligence of CLIENT or any other negligent entity or individual, shall not exceed the percentage share that RLK's negligence bears to the total negligence of CLIENT, RLK, and all other negligent entities and individuals. D. To the fullest extent permitted by law, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of RLK and RLK's officers, directors, partners, employees, agents, and RLK's Consultants, and any of them, to CLIENT and anyone claiming by, through, or under CLIENT for any and all claims, losses, costs, or damages whatsoever arising out o~ resulting from or in any way related to the Project or the Agreement from any cause or causes, including but not limited to the negligence, professional errors or omissions, strict liability or breach of contract, or warranty express or implied of RLK or RLK's officers, directors, partners, employees, agents, or RLK's Consultants, or any of them, shall not exceed the total compensation received by RLK under this Agreement or $50,000, whichever is greater. E. To the fullest extent permitted by law, CLIENT agrees to defend, indemnify and hold harmless RLK and RLK's officers, directors, partners. employees, agents, and RLK's Consultants from any and all claims. losses, costs, or damages whatsoever arising our of, resulting from or in any way related to the Project or Agreement from any cause or causes, including but not limited to the negligence, professional errors or omissions, strict liability or breach of contract or warranty of RLK or RLK's Consultants, which exceed the limit of liability as set forth in the previous paragraph. CLIENT further agrees to obtain insurance, if available, to cover these indemnification obligations. F. To the fullest extent permitted by law, and not withstanding any other provision in the Agreement, RLK and RLK's officers, directors, partners, employees, agents, and RLK's Consultants shall not be liable to CLIENT or anyone claiming by, through, or under CLIENT for any special, incidenta~ indirect, or consequential damages whatsoever arising out of, resulting from, or in any way related to the Project or the Agreement from any cause or causes, including but not limited to any such damages caused by the negligence, professional errors or omissions, strict liaBility or breach of contract, or warranty express or implied of RLK or RLK's officers, directors, partners, employees, agents, or RLK's Consultants, or any of them. G. If the CLIENT makes or causes to be made any alteration, change, amendment or additions of any kind in the contract documents or RLK's instruments of service, the CLIENT shall be solely responsible for any and all damages, liability and consequence resulting therefrom. The CLIENT agrees to defend, indemnity and hold harmless RLK and its agents and consultants from and against all claims, damages, Josses and expenses, including, but not limited to attorneys' fees arising out of or related directly or indirectly to any alteration, change, amendment or addition to the contract documents or instruments of service. X. PAYMENTS FOR SERVICES AND REIMBURSABLE EXPENSES A. Preparation of Invoices. Invoices will be prepared in accordance with RLK's standard invoicing practices and will be submitted to CLIENT by RLK, unless otherwise agreed. B. Invoices are due and payable upon receipt. Invoices not paid within 30 days of the date rendered will be assessed a fInance charge of one percent per month, or fraction thereof, for each month beyond 30 days past due. CLIENT will be responsible for all expenses incurred by RLK in the collection of any unpaid invoice, including the actual attorneys' fees and costs charged by its legal counsel. C. In the event of legislative actions after the effective date of this Agreement by any level of government that imposes taxes, fees, or costs on RLK's services or other costs in connection with this Agreement or compensation therefore, such new taxes, fees, or costs shall be invoiced to and paid by the CLffiNT. Should such taxes, fees, or costs be imposed, they shall be in addition to RLK's estimated total compensation. D. RLK shall have the right to suspend work or withhold completed work on the Project, or any other project in progress between the CLIENT and RLK if payments are not timely received upon five (5) calendar days' notice to the CLIENT. RLK shall have no liability whatsoever to the CLEINT for any costs or damages as a result of such suspension caused by any breach of this Agreement by the CLIENT. Page 4 of5 ,.--...." RLK '~Dl - ATTACHMENT A - GENERAL CONDITIONS E. RLK retains the right not to seal drawings produced for any phase of this Project until all invoices previously billed have been paid in full. If a performance schedule is involved in the work, any time lost while work is suspended due to non.payrnent wU be added to the end of any such schedule. If the work is suspended for a period longer than 60 days, RLK shall retain the right to charge a restart fee, to be negotiated and paid priorto resumption of the work. F. In the event of a disputed or contested invoice, only that portion so contested may be withheld from payment, and the undisputed portion wl1 be paid. G. CLIENT shall pay RLK for Reimbursable Expenses. The amounts payable to RLK for Reimbursable Expenses will be the Project-related internal expenses actually incurred or allocated by RLK. plus all invoiced external Reimbursable Expenses allocable to the Project, the latter multiplied by a Factor of 1.15. H. Whenever compensation to RLK herein is stated to include charges of RLK's Consultants, those charges shall be the amounts Iilled by RLK's Consultants to RLK times a Factor of 1.15. The external Reimbursable Expenses and RLK's Factors include RLK's overhead and profit associated with RLK's responsibility for the administration of such services and costs. I. If the CLIENT fails to make payment to RLK in accordance with the payment tenns herein, this shall constitute a material breach of this Agreement and shall be cause for termination by RLK. J. Payment of invoices is in no case subject to unilateral discounting, backcharges or set-offs by the CLIENT, and payment is due regardless of suspension or termination of this Agreement by either party. XI. CHAN!}ES IN WORK A. Change in services of RLK, including services required of RLK's Consultants, may be accomplished after execution of this Agreement by Design Change Notice or other writing signed by both parties. In the absence ofa mutual agreement in writing, RLK shall notify the CLIENT prior to providing such additional services. If the CLIENT deems that all or a part of the additional services are not required,. the CLIENT shall give prompt written notice to RLK and RLK shall have no obligation to provide those services. Except for a change or additional services due to the fault of RLK, a Design Change Notice shall entitle RLK to an adjustment in compensation and to any reimbursable expenses for doing the additional work. B. The following circumstances affect RLK's services for the Project and RLK shall be entitled to additional compensation and an adjustment in schedule should any of these arise: 1. change in instruction or approvals given by the CLIENT that necessitate revisions in Instruments of Service; 2. enactment or revision of codes, laws or regulations or official interpretations which necessitate changes to previously prepared Instruments of Service; 3. significant change in the Project including. but not limited to size, quality, complexity, schedule, budget or procurement method; 4. failures of performance on the part of the CLIENT, the CLIENT's consultants or the Contractor; and 5. preparation for, attendance at and follow up after a public hearing, dispute resolution proceeding or other legal proceeding except where RLK is a party thereto. This list is not meant to be an exhaustive list of circumstances under which an adjustment in compensation and schedule shall be made. XII. GENERAL CONSIDERATIONS A. This Agreement is to be governed by the laws of the State of Minnesota. B. All express representations, indemnifications, or limitations of liability included in this Agreement will survive its completion or termination for any reason. C. Any provision part of the Agreement held to be void or unenforceable under any laws or regulations shall be deemed stricken, and all remaining provisions shall continue to be valid and birding upon CLIENT and RLK. D. This Agreement represents the entire and integrated agreement between RLK and CLIENT. Extra work or changes in the work shall be by Design Change Notice or Client's extra work order only. Upon acceptance in writing by both RLK and CLIENT, all such extra work or changes shall be incorporated herein. Page 5 of 5 ~ RLK. . ":;:::;;7 , ~ RI..K. Engineerfng .- Landscape Architecture. Planning. Surveying. Traffic ( INCOR,PORATED ) " .' . ~ Creallng "'",oro;nary '~ Communities Professional Services Rate Schedule )!:ffedive: July 1, 2005 - June 30, 2006 Professions) EOD'lneerinl! Services Principal Engineer Hourlv Rates 160.00 Sr. Professional Engineers Professional Engineers 120.00- 150.00 Project Engineers (EIT) 85.00 - 115.00 55.00. 80.00 Sr. Engineering Technicians Engineering Tecllllicians Engineering Interns g5.00-l05.00 45.00. 75.00 45.00 Pl'ofessi.onlll LaudKaDe. Archltuture Services Principal Landscape ArclJitect Landscape Architects Houri\' Rates 160.00 75.00- 115.00 Landscape Designers 55.00 - 65.00 45.00 Landscape ArchitI:ot Interns Professional Planoinll Services PrincipalPlllllIlOI' H6\1r1"1Rates 160.00 Plenning Interns 125.00 60.00.75.00 45.00 Senior PlannersJEconomic Development Director PLannets Sr. Professional Land Surveyors Professional Land Surveyors Houri" Rates 160.00 120.00 - 150.00 95.00. \\5.00 65.00 . 105.00 Professional Land SUn'evin2' Services Principal Land Surveyor Land Surveyors In Training Land Survey Technicians 45.00 - 80.00 3-person Land Survey Crew 45.00 115.00.145.00 160.00 -195.00 Land Survey Interns 2-Person Land S\lIvey Crew GPS Operatn" GPS Equlpment Rental 100.00 40.00 Proiect SdDDort Services Project MllIlager AssmllIlls 65.00- 85.00 Administrative Assistants 45.00 Unless otlterwlse stated, charges 101' direct costs for printing and reproduction, specJalfees, permits, sulJcontracts and other oW-(Jf- pockel expenses will be calculated on a basis of acJual cost pmsfifteen (15) percellt. Mileage, when charged, will be hilled at tlze cu"ent per diem rate as authorized (IItd allowed by the Internal RevtlUle Service. FAEGRE &; BENSON '" UNITED STATES I ENGLAND I GERMANY I CHINA w ALTER H. ROCKENSTEIN II wrockenstein@faegre.com 612.766.7208 February 1, 2006 Mr. James D. Kerrigan Planning & Economic Development Director City of Hopkins 1010 First Street South Hopkins, MN 55343 BY E-MAIL AND U.S. MAIL Re: Request To Update The Medica Corporate Office Development AUAR. Dear Mr. Kerrigan: We represent Opus Northwest, L.L.C., who is proposing to develop the SuperValu North Annex site in the City of Hopkins. As you know, this site was the subject ofthe Medica Corporate Office Development Alternative Urban Areawide Review, which was accepted by the City in August 200 I. This letter comes on behalf of Opus to request that the City update the Medica AUAR to address the development proposed by Opus. Opus understands and agrees that the cost of the update will be paid by Opus. For you consideration, I have enclosed a draft Resolution ordering the update that states the background and reasons for the update, addresses contracting with RLK Incorporated to do the work, and states Opus's obligation to pay for the update. Opus asks that you place this item on the City Council's next agenda. If you have any questions, please call me. Sincerely, q;f~w ~.:7L:' Walter H. Rockenstein II ROCWH:jorsa:MI,1289337.01 Enclosures cc: David J. Menke David F. Bangasser John Dietrich Michele Jackson Caron 2200 WELLS FARGO CENTER I 90 SOUTH SEVENTH STREET I MINNEAPOLIS MINNESOTA 55402-3901 TELEPHONE 612-766-7000 I VACSIMILE 612-766-1600 I WWW.FAF;ORL<:.COM