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CR 09-094 Approval of First Amendment to the Hopkins Depot Use Permit AgreementNovember 4, 2009 Council Report 2009 -094 Approval of First Amendment to the Hopkins Depot Use Permit Agreement Proposed Action Staff recommends adoption of the following motion: Move to approve an amendment to the Hopkins Depot Use Permit Agreement. Approval of this amendment to the Depot Use Permit Agreement would allow an expansion of the land area that the Depot could utilize for potential projects in the future. Not approving the amendment would not allow the Depot Board and Partners to consider expanding use of the Depot property for future projects. Overview The City of Hopkins has participated in a partnership with the Three Rivers Park District and the Depot to provide trailhead services as well as an active teen center at the Hopkins Depot. The Park District assists the City in operating the site through a permit with the HCCRA along with a sub - permit agreement between all parties. The Partnership Group for the Depot has been discussing a variety of future development opportunities related to alternative energy. Due to the limited space available under the current agreement, the Partnership has recommended approaching HCRRA to expand the permitted area toward Highway 169. This expanded area would provide more opportunity for additional or alternative site uses. The Amendment to the existing use permit for the Depot will expand the footprint of the area to the west of the building. The Three Rivers Park District Board approved this amendment to the permit agreement on October 22. The HCRRA had it scheduled for approval on Nov. 3. Supporting Information • Map of Proposed Permit Extension Area • First Amendment to Permit Agreement 73 -32103 ick Getschow City Manager Financial Impact: 0.00 Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: FIRST AMENDMENT TO PERMIT AGREEMENT NO. 73 -32103 (TRAILHEAD AGREEMENT HOPKINS DEPOT 2007) . THIS AGREEMENT, made and entered into by and between the Hennepin County Regional Railroad Authority ( "HCRRA "), a Minnesota political subdivision and local governmental unit, the City of Hopkins, a Minnesota municipal corporation ( "CITY "), and Three Rivers Park District ( "TRPD "), a Minnesota political subdivision (collectively, the "Parties "); WITNESSETH: WHEREAS, HCRRA, CITY and TRPD entered into a certain Permit Agreement bearing Agreement No. 73- 32103, for the right to develop and operate a trailhead ( "Trailhead Development') on property commonly described as the Hennepin County Regional Rail Authority "Hopkins to Minneapolis Corridor" ( "Rail Corridor "), said Permit being set forth in Exhibit "I ", attached hereto and made a part hereof by reference; WHEREAS, CITY and TRPD desire to expand the Trailhead Development westerly to State Highway 169; WHEREAS, HCRRA, CITY and TRPD desire to amend the Permit in certain particulars; NOW, THEREFORE, the parties mutually agree as follows: Clause 1. "Premises" of the Permit is hereby amended by substituting the following therefor: Hennepin County Regional Railroad Authority (HCRRA) Hopkins Depot building, formerly the Chicago & North Western Transportation Company Hopkins Depot building, located at 9451 Excelsior Boulevard, Hopkins, Minnesota 55343, and that part of HCRRA Property Maps No. 2 and No. 12, on file and of record in the office of the County Recorder in and for said Hennepin County as Document No. 5496762 and Document No. 5518920 respectively, and which is in the west ' / 2 of the Southwest Quarter of Section 19, Township 117, Range 21 and in the Southeast Quarter of the Southeast Quarter of Section 24, Township 117, Range 22, and which is southerly and southwesterly of C.S.A.H. No. 3 (Excelsior Boulevard) and easterly of a line drawn parallel with and 600 feet westerly of the westerly wall of the said HCRRA Hopkins Depot building, and northerly of a line drawn parallel with and 5 feet northerly of the north edge of the bike /pedestrian trail pavement, the rights to said trail being granted and contained in Permit Agreement No. 73 -32001 dated September 1, 1998 between HCRRA and Suburban Hennepin Regional Park District, now Three Rivers Park District, and which is hatched marked on Exhibit A -1. Exhibit A -1 is attached and incorporated by reference in this Agreement. Clause 9. "Liability, Indemnification and Insurance" of the Permit is hereby amended by substituting the following therefor: 9) Liability, Indemnification and Insurance. A. Park District Liability and Indemnification Park District shall defend, indemnify and hold harmless HCRRA and City, their officers, agents, representatives, volunteers, and employees from any liability, claims, cause of action, judgments, damages, losses, costs or expenses; including reasonable attorneys' fees, resulting directly or indirectly from any act or omission of Park District, its contractors, subcontractors, anyone directly or indirectly employed by them, 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 Park District, to the then current limits of liability applicable to the claim(s) in question for municipal corporations contained in Minnesota Statutes Chapter 466. B. City Liability and Indemnification City shall defend, indemnify and hold harmless HCRRA and Park District, their officers, agents, representatives, volunteers, and employees from any liability, claims, cause of action, judgments, damages, losses, costs or expenses; including reasonable attorneys' fees, resulting directly or indirectly from any act or omission of City, its contractors, subcontractors, anyone directly or indirectly employed by them, 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 City, to the then 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. C. Park District Self Insurance and Insurance Park District represents that it has a program of risk management for managing its potential liability and is certified as a self insurer for the purposes of Minnesota Statute Chapter 65B. Park District agrees that it shall be responsible for its losses pursuant to law, will 2 maintain a program of risk management, and a program of self insurance when such self insurance is required by law, and will purchase and maintain or cause its contractors to purchase and maintain such insurance as is otherwise required under the terms of this Agreement. The above provisions shall not act as, and it is not the Parties' intent that the foregoing provisions shall act as, a waiver of any of the Parties' defenses, immunities or other limitations on liability granted by statute or common law. D. City Insurance In order to protect HCRRA and those listed above under the indemnification section, City agrees at all times during the term of this Agreement to have and keep in force the following insurance coverages: Limits Commercial General Liability on an occurrence basis with contractual liability coverage: General Aggregate $2,000,000 Products - Completed Operations Aggregate 2,000,000 Personal and Advertising Injury 1,500,000 Each Occurrence - Combined Bodily Injury and Property Damage 1,500,000 2. Sports Accident Insurance — per person, per accident 50,000 (providing excess medical and dental coverage to athlete participants, officials, coaches, and volunteers with a maximum per claim deductible of $250) 3. Automobile Liability - Combined 1,500,000 single limit each occurrence for bodily injury and property damage covering owned, non - owned, and hired automobiles. 4. Workers' Compensation and Employer's Liability: a. Workers' Compensation. Statutory 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 500,000 3 Disease - Policy Limit 500,000 Disease - Each Employee 500,000 E. Optional Commercial Property Insurance 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 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 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, 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 endorsed 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. Should the tort liability limit for municipalities in the State of Minnesota under Minnesota Statutes Section 466.04 increase to an amount in excess of $1,500,000 per occurrence, the required per occurrence limits for the insurance in Sections 9)D.1. and 9)D.3. above shall increase to the new tort liability per occurrence limit. 4 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 copies of insurance policies shall be submitted to HCRRA upon written request. Prior to City and Park District taking possession of the Premises, City and Park District shall obtain the required insurance and file with HCRRA a properly executed certificate(s) of insurance which clearly evidences required insurance coverages. The certificate(s) shall: Name Hennepin County Regional Railroad Authority as certificate holder and as an additional insured for the Commercial General Liability coverage with respect to operations covered under the Lease. Name Hennepin County Regional Railroad Authority as an insured for the Commercial Property Insurance coverage. Show that the Hennepin County Regional Railroad Authority 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 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 may pursue any rights or remedy allowed under this Lease, law, equity, and /or statute. F. Liability, Indemnification and Insurance During Construction of Trailhead Improvements All payments made by the Park District to any contractor, laborer, materialsmen or supplier shall be made in a timely manner, and Park District shall defend, indemnify, and hold harmless HCRRA, its officials, officers, agents, volunteers and employees from and against any liability, liens, claims, causes of action, judgments, damages, losses, costs and expenses, including reasonable attorney's fees, resulting directly or indirectly from, or alleged to have resulted from, or in connection with, any labor, equipment, or materials delivered or claimed to have been delivered to the Premises or Building in connection with the Trailhead Improvements. 5 2. Park District shall also defend, indemnify, and hold harmless HCRRA, its officials, officers, agents, volunteers and employees from and against any liability, claims, causes of action, judgments, damages, losses, costs and expenses, including reasonable attorney's fees, resulting directly or indirectly from any act or omission of Park District, its contractors, anyone directly or indirectly employed by them, and /or anyone for whose acts and /or omissions they maybe liable, in connection with the Trailhead Improvements. 3. During the period of construction of the Trailhead Improvements, Park District shall purchase and maintain or cause its contractors to purchase and maintain such insurance as will protect HCRRA from claims set forth below which may arise out of or result from the work to be performed as described above, when the work is performed by Park District, or any contractor, subcontractor; or by anyone for whose acts any of them may be liable. Park District shall provide acceptable certificates of insurance as necessary to show continuous coverage as follows: a. Claims under Workers' Compensation and Employer's Liability and other similar employee benefit acts; b. Claims for damages because of personal or bodily injury, sickness or disease, or death of any person other than Park District's employees; C. Claims for damages, other than to the goods or work itself, because of damage to or destruction of tangible property, including loss of use resulting therefrom; and d. Claims for damages because of bodily injury or death of any person or property damage arising from the ownership, maintenance, or use of any motor vehicle in the performance of the work as described above. 4. To protect itself and HCRRA under the indemnification provisions above, Park District will at all times during construction of the Trailhead Improvements provide or cause its contractors to purchase and maintain insurance coverage and certificates evidencing such, as follows: T a. Workers' Compensation and Employer's Liability Insurance; b. Commercial General Liability (CGL) insurance policy in an amount not less than One Million Five Hundred Thousand ($1,500,000.00) Dollars for death, bodily injury, personal injury, and /or property damage, arising out of a single occurrence; with a general aggregate limit of not less than Two Million (($2,000,000.00); and with a products - completed operations aggregate limit of not less than Two Million (($2,000,000.00). C. Automobile Liability insurance of One Million Five Hundred Thousand ($1,500,000.00) Dollars combined single limit each occurrence for death, bodily injury, and property damage covering owned, non - owned, and hired automobiles; 5. Insurance coverage shall be acknowledged by certificates of insurance. All certificates of insurance shall name HCRRA as an additional insured for the CGL coverage and provide that the insurance company shall give HCRRA thirty (30) days' written notice of cancellation, non - renewal, or any material change in any described policies. 6. Should the tort liability limit for municipalities in the State of Minnesota under Minnesota Statutes Section 466.04 increase to an amount in excess of $1,500,000 per occurrence, the required per occurrence limits for the insurance in Sections 9)F.4.b. and 9)F.4.c. above shall increase to the new tort liability per occurrence limit. The effective date of this First Amendment to Permit Agreement No. 73 -32103 is Except as herein above amended, the terms, conditions and provisions of Permit Agreement No. 73- 32103, shall apply to and govern the provisions of this Agreement. THIS PORTION OF PAGE INTENTIONALLY LEFT BLANK 7 IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of , 2009. HENNEPIN COUNTY REGIONAL RAILROAD AUTHORITY Reviewed by the County Attorney's By: Office Date: ATTEST: Deputy /Clerk of Board THREE RIVERS PARK DISTRICT Reviewed by Legal Counsel Board for Three Rivers Park And: By: Superintendent and Secretary to the Date: Chair, Board of Commissioners Chair Board of Commissioners CITY OF HOPKINS By: Its: Mayor Date: By: Its: City Manager Date: This City is organized pursuant to: X Plan A Plan B Charter Deputy /Executive Director 0