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HRA - Cooperative Agreement for Shady Oak Road Community Works ProjectHennepin County Contract No. A120493 COOPERATIVE AGREEMENT FOR SHADY OAK ROAD COMMUNITY WORKS PROJECT This Agreement is between the County of Hennepin Housing and Redevelopment Authority ("HCHRA"), A-2300 Government Center, Minneapolis, Minnesota 55487, and the Housing and Redevelopment Authority in and for the City of Hopkins ("HHRA"), 1010 1 " St S, Hopkins, Minnesota 55343 and the Economic Development Authority in and for the City of Minnetonka ("MEDA"), 14600 Minnetonka Boulevard, Minnetonka, Minnesota 55345. WHEREAS, all parties wish to complete a redevelopment project and associated public and private improvements as part of the Shady Oak Road Community Works Project ("Project"); and WHEREAS, the project area is the area between Oak Drive on the North and Bradford Road on the South; Shady Oak Road on the East and the west property boundary of properties west of Shady Oak Road (`Project Area"); and WHEREAS, the Project is consistent with the recommendations of the Redevelopment Project Area One in the City of Hopkins and the redevelopment project area to be approved by the City of Minnetonka in 2012; and WHEREAS, as part of its Redevelopment Project No. 1, the HHRA has approved a redevelopment plan for the Project Area ("Plan"); and WHEREAS, the MEDA will approve a redevelopment plan for parcels within the Project Area that are located within its boundaries ("Plan") by December 31, 2012; and WHEREAS, by Resolution No. 07- 466R1, Hennepin County authorized funds in an amount not to exceed Three Million Dollars for the Shady Oak Road Community Works Project; WHEREAS, the HCHRA wishes to contract with the HHRA and MEDA for completion of said Project; and WHEREAS, the HCHRA has the authority to contribute to the Project pursuant to Minnesota Statutes, Chapter 163 and Sections 383B.77, 383B.79,469.001 to 469.047, 471.85, and other applicable law; and WHEREAS, the parties are authorized to enter into this agreement pursuant to Minnesota Statutes Sections 383B.79, 471.59 and other applicable law; THEREFORE, the parties agree as follows: Term and Cost of the Aareement. The term of this agreement commences December 1, 2012 and terminates December 31, 2017. HCHRA agrees to reimburse HHRA and MEDA for an amount up to Three Million Dollars ($3,000,000) ("Funds") for the property acquisition, property improvements, environmental abatement, and other activities and services specified in Section 4 below and generally illustrated on Attachment A ("Improvements") or as approved by HCHRA. Additional funds from payments for roadway right-of-way, not to exceed $1,370,000 ("Additional Funds") may also be available during the project period for property acquisitions. 2. Responsibilities of Parties. The HHRH intends to purchase property for the purpose of redeveloping it with a new building with a minimum size of 10,000 square feet (the "Redevelopment Site") or an 8,000 square foot building if the building is constructed by a property owner currently in the project area and to make the Improvements to the Redevelopment Site. The H RA also intends to make Improvements to other parcels within the Project Area, as provided in this Agreement. HHRA and the HCHRA shall determine the actual location, area and dimensions of the Redevelopment Site. The HCHRA shall not unreasonably withhold or delay its approval of any request by the HHRA for approval of the location of parcels to be acquired for the Redevelopment Site, and shall notify the HHRA of approval or disapproval of such location within ten (10) business days of submission of a request for approval by the HHRH. The MEDA will approve a redevelopment area for parcels within the Project Area that are located within its boundaries by December 31, 2012. The MEDA agrees to make the Improvements to parcels within the Project Area that are located within its boundaries, as provided in this Agreement. HCHRA agrees to reimburse HHRH and MEDA for the Improvements in accordance with Section 4 of this Agreement. Restricted Use of the Funds. The use of any Funds for acquisition of the Redevelopment Site or Improvements thereto is contingent upon the ability of the HHRA to acquire property from willing sellers for the creation of the Redevelopment Site. If the HHRA is unable to acquire the Redevelopment Site, no portion of the HCHRA Funds are expendable solely for the purpose of making improvements to private property or for the creation of new parking, provided the HHRA shall be entitled to reimbursement for Second and Third priority expenditures for which the HHRA has become unconditionally obligated in reliance on this Agreement. 4. Improvements Reimbursed. HHRA and MEDA shall use all Funds received under this Agreement for the purposes, and in the priority, described below. If additional funds are deemed necessary to meet the objectives of the HHRA, MEDA and HCHRA, the parties agree to work together to identify additional funds available for the project. Any expenditure for the particular priority that exceeds the not -to -exceed amount will be reviewed by the HHRA and the MEDA, with the HCHRA providing final approval. In order to work within time constraints and to prevent duplicative payments to property owners from both the Project and the current road project (County Project 9112), any property within the Project Area that is in an eminent domain action by Hennepin County as a part of County Project 9112, will be ineligible to receive Funds for improvements to privately owned property unless HCHRA approves payment of the Funds after reviewing the circumstances of the condemnation. A. First Priority for the Expenditure of Funds: Acquire property within Project Area for the purpose of creating the Redevelopment Site. Property acquisition and redevelopment costs eligible for reimbursement from the HCHRA include: • Purchase of property for redevelopment purposes to be included in the Redevelopment Site • Relocation of tenants in acquired properties • Acquisition and/or relocation consultant services • Hazardous material abatement in acquired buildings and land including, but not limited to, costs of environmental assessments, testing, MPCA fees and environmental remediation costs • Demolition of buildings on acquired property • Legal Services related to acquisition activities • Engineering services to facilitate building removal • Restoration of building walls related to building separation • Permitting fees • Other services as preapproved by Hennepin County The expenditures for property acquisition are not to exceed $3,000,000 without review by HHRA and VEDA and approval by HCHRA. In connection with the transfer of the Redevelopment Site to a redeveloper, the HHRA may enter into a subrecipient agreement or redevelopment agreement with the redeveloper allowing use of the Funds for the purposes described in this Paragraph A, subject to all of the terms and conditions state in this Agreement. The HCHRA will reimburse HHRA for costs listed above. Prior to expending funds for any of the following priorities, purchase agreement(s) must be signed for the purchase of property that will create an adequately sized development parcel as determined by the HHRA and the HCHRA. B. Second Priority for the Expenditure of Funds: Construct new parking lots as determined necessary to support adjoining businesses similar to the manner depicted in the schematic development concept found in Attachment A. Eligible reimbursable expenses include: • Removals, grading and other site preparation • Installing Parking Lot Base • Asphalt Paving, Seal Coating, and Striping of New Parking Areas • Lighting of Parking Areas • Landscaping New parking lots shall be subject to the following terms and conditions unless otherwise allowed by the HCHRA: i) Title to the land on which new parking lot(s) are constructed or will be constructed in the future may be sold to adjacent property owner(s) for an amount equal to the fair market value as established by the Hennepin County Assessor, which will take into account the non-exclusive parking easement(s) or as otherwise allowed by the HCHRA. ii) As a condition of the sale of new parking lot property to an adjacent property owner, the parking lot may be subject to a non-exclusive parking easement that provides for the sharing of the parking with adjacent commercial properties., The expenditures for new parking lots are not to exceed $300,000 without review by HHRA and MEDA and approval of HCHRA. C. Third Priority for the Expenditure of Funds: Improvements to existing private parking lots within the project area as designated "ICN" in Attachment A. Eligible reimbursable expenses include: Asphalt Overlay, Seal Coating, and Striping Lighting within the parking lot using the chosen light standard for the project area. Private property owners may be eligible to receive cost to cure payments for parking lot improvements (seal coating, stripping, etc.) from Hennepin County Transportation for the Shady Oak Road project. Whether in the city of Hopkins or Minnetonka, the parking lot improvements will be managed and monitored by Minnetonka city staff. All parking lots improvements and payments will be coordinated with Hennepin County staff and the roadway construction contractor(s) for County Project 9112. The expenditures for parking lot improvements are not to exceed $300,000 without review by HHRA and MEDA and approval by HCHRA. D. Fourth Priority for the Expenditure of Funds: Facade improvements to existing businesses that conform to the current city zoning code and are immediately adjacent to the Shady Oak Road construction project between Highway 7 and Excelsior Boulevard. Property owners are required to provide a 50 percent cash match to any funds provided by HCHRA for facade improvements. HHRA and MEDA will manage the facade improvements for properties in their cities. Facade improvements are only possible if funding remains after completion of the first three priority activities. E. Fifth Priority for Expenditure of Funds: Otherpublic amenities that support Community Works principles within the Shady Oak Road corridor (for example, streetscape and park improvements). 5. Disposal of Acquired Property. The HHRA shall use its best efforts to sell or otherwise transfer the Redevelopment Site to a qualified and responsible redevelopment party or parties (as determined by the HHRH) who will assume the obligation of completing the Minimum Improvements by December 31, 2017. The terms and conditions for the sale or transfer of the Redevelopment Site to a redeveloper shall be determined by the HHRA in its reasonable discretion and such transfer may be made for less than fair market value in order to facilitate redevelopment of the Redevelopment Site. The Minimum Improvements are abuilding of new construction with a minimum size of 10,000 square feet or 8,000 square feet if the building is constructed by a project area property owner and an associated landscaped, lighted parking lot(s), as generally illustrated in Attachment A, attached and incorporated by this reference. Any land sale proceeds must be used only for the purposes stated in Section 4 of this agreement. It is understood that relocation to or acquisition of the Redevelopment Site may be offered to one or more of the project area owners in exchange for the property presently occupied by such owner(s). If this occurs, and the HHRA acquires such property in exchange, the HHRA agrees to convey to Hennepin County that part of the property acquired in such exchange that is needed for roadway and/or right-of-way purposes as described in item 8. 6. Development Agreement. Any development agreement that is negotiated by the HHRA with a developer of the Redevelopment Site purchased with HCHRA funds must receive HCHRA approval. Approval will not be withheld if the project meets the Minimum Improvements requirements. 7. Parking Lot Improvements. Construction of parkingloJimprovements within the...pl ect _ _ _ - Deleted: P area, whether in the city of Hopkins or Minnetonka, will be managed and monitored by Deleted: s Minnetonka city staff,,subject to reasonable approval of Hopkins city staff asto location _ _ _ Formatted: Font: renes New and design forproperties located in Hopkins. _Allparking lots improvements will be_ _ _ _ Roman, No underline coordinated with Hennepin County staff and the roadway construction contractor(s). Formatted: Font: (Default) Times New Roman, 12 pt, No underline 8. Conveyance of Roadway/Right-of-Way Property. The HHRA and MEDA agree to convey to Hennepin County for no cost any real property acquired which is identified by Hennepin County as required for roadway construction and/or right-of-way purposes as part of County Project 9112 provided such real property has been acquired with the use of Funds or Additional Funds provided by HCHRA. Conveyance to Hennepin County shall be completed before the sale or transfer of any property acquired under this agreement or before the road project construction commences, whichever is earlier. 9. Pgymment. Payment for property acquisition costs and the Improvements shall be made directly to the HHRA and MEDA after completion of the acquisition or incurring costs for other Improvements and upon the presentation of a claim in the manner provided by law governing the HCHRA's payment of claims. Payment shall be made within forty- five (45) days from receipt of the invoice. 10. Independent Contractor. The HHRA and MEDA shall select the means, method, and manner of performing the services. Nothing is intended or should be construed as creating or establishing the relationship of a partnership or a joint venture between the parties or as constituting the HHRA and MEDA as the agent, representative, or employee of the HCHRA for any purpose. The HHRA and MEDA are and shall remain independent contractors for all services performed under this Agreement. The HHRH and MEDA shall secure all personnel required in performing services under this Agreement. Any personnel of the HHRA and MEDA or other persons while engaged in the performance of any work or services required by the HHRA and MEDA will have no contractual relationship with the HCHRA and will not be considered employees of the HCHRA. The HCHRA shall not be responsible for any claims that arise out of employment or alleged employment under the Minnesota Economic Security Law or the Workers' Compensation Act of the State of Minnesota on behalf of any personnel, including, without limitation, claims of discrimination against the HHRH and MEDA, its officers, agents, contractors, or employees. The HHRA and MEDA shall defend, indemnify, and hold harmless Hennepin County and the HCHRA, their officials, officers, agents, volunteers, and employees from all such claims irrespective of any determination of any pertinent tribunal, agency, board, commission, or court. Such personnel or other persons shall neither require nor be entitled to any compensation, rights, or benefits of any kind from the HCHRA, including, without limitation, tenure rights, medical and hospital care, sick and vacation leave, Workers' Compensation, Re-employment Compensation, disability, severance pay, and retirement benefits. 11. Indemnification. The HHRA and MEDA agree to defend, indemnify, and hold harmless Hennepin County and the HCHRA, their officials, officers, agents, volunteers and employees from any liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including reasonable attorney's fees, resulting directly or indirectly from any act or omission of the HHRA and MEDA, a subcontractor, anyone directly or indirectly employed by them, and/or anyone for whose acts and/or omissions they may be liable in the performance of the services required by this Agreement, and against all loss by reason of the failure of the HHRA and MEDA to perform any obligation under this Agreement. Nothing in this Agreement constitutes a waiver by the parties of any statutory or common law defenses, immunities, or limits on liability. The obligation of a party under this section cannot exceed the amount that the party would be obligated to pay under the provisions and limitations of Minn. Stat. Chap. 466 without this indemnification language. Under no circumstances will a party be required to pay on behalf of itself and other parties; any amounts in excess of the limits on liability established in Minnesota Statutes Chapter 466 applicable to any one party. 12. Data Practices. The HHRA and MEDA, its officers, agents, owners, partners, employees, volunteers and subcontractors shall abide by the provisions of the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 (MGDPA), the Health Insurance Portability and Accountability Act (HIPAA) and implementing regulations, if applicable, and all other applicable state and federal laws, rules, regulations and orders relating to data privacy or confidentiality. If the HHRA or MEDA creates, collects, receives, stores, uses, maintains or disseminates data because it performs functions of the HCHRA pursuant to this Agreement, then the HHRA and MEDA must comply with the requirements of the MGDPA as if it were a government entity, and may be held liable under the MGDPA for noncompliance. The HHRA and MEDA agree to defend, indemnify and hold harmless Hennepin County and the HCHRA, its officials, officers, agents, employees, and volunteers from any claims resulting from the HHRA and MEDA's officers', agents', owners', partners', employees', volunteers', assignees' or subcontractors' unlawful disclosure and/or use of such protected data, or other noncompliance with the requirements of this section. The HHRA and MEDA agree to promptly notify the HCHRA if it becomes aware of any potential claims, or facts giving rise to such claims, under the MGDPA. The terms of this section shall survive the cancellation or termination of this Agreement. 13. Records — Availability/Access. Subject to the requirements of Minnesota Statutes Section 16C.05, Subd. 5, the HHRA and MEDA agree that the HCHRA, the State Auditor, or any of their authorized representatives, at any time during normal business hours, and as often as they may reasonably deem necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc., which are pertinent to the accounting practices and procedures of the HHRA and MEDA and involve transactions relating to this Agreement. The HHRA and MEDA shall maintain these materials and allow access during the period of this Agreement and for six (6) years after its termination or cancellation. 14. Liabili . It is further understood that neither the HCHRA, nor its elected officials, officers, agents and employees, either in their individual or official capacity, shall be responsible or liable in any manner to the HHRA and MEDA for any claims, demands, judgments, fines, penalties, expenses, actions or causes of actions of any kind or character arising out of or by reason of negligent performance of the work by the HHRA and MEDA, or arising out of the negligence of any contractor under the contract let by the HHRA and MEDA for the performance of that work; and subject to the limitations in Section 11, the HHRA and MEDA agree to defend, save and keep said HCHRA, its elected officials, officers, agents and employees harmless from all claims, demands, judgments, fines, penalties, expense, action or causes of actions and expenses (including, without limitation, reasonable attorneys' fees, witness fees, and disbursements incurred in the defense thereof) arising out of negligent performance by the HHRA and MEDA, its officers, agents or employees. 15. Merger and Modification. A. It is understood and agreed that the entire Agreement between the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter. All items that are referenced or that are attached are incorporated and made a part of this Agreement. If there is any conflict between the terms of this Agreement and referenced or attached items, the terms of this Agreement shall prevail. B. Any alterations, variations, modifications, or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing as an amendment to this Agreement signed by the parties. 16. Default and Cancellation. A. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement either of the following events: (i) Failure to comply with the terms of this Agreement. (ii) Provided the HHRA is able to acquire the Redevelopment Site with the use of Funds, the failure by the HHRA or a developer selected by the HHRA to commence and complete construction of the Minimum Improvements described as a new building of at least 10,000 squarefeet or_ - - - Deleted: f«d 8,000 if new building is constructed by existing project area property owner pursuant to the terms, conditions and limitations of this Agreement by December 31, 2017. B. If there is an Event of Default, at the discretion of the HCHRA, the following remedies are possible upon written notice by the HCHRA: (i) Suspend performance under this Agreement until the HCHRA receives assurances of performance. No additional financial payments will be made to the HHRA until the suspension has been released. (ii) Renegotiate or terminate this Agreement, provided the HHRA and MEDA shall have been given thirty (30) days notice and opportunity to cure the Event of Default before such termination. (iii) Require the transfer of any property purchased with HCHRA funds by the HHRA or MEDA to the HCHRA whereupon the HCHRA shall have the right to take possession of the property. Any property transferred to the HCHRA shall have a clear title and be free of any special assessments and unpaid utility bills, but subject to any encumbrances to which such property is subject upon its acquisition by HHRA or MEDA. (iv) Require the HHRA or MEDA to sell any property purchased with HCHRA funds. The net proceeds (sale price minus closing costs) from the sale of the property shall be paid to the HCHRA in an amount not to exceed the Funds used to acquire such property and any other expenses incurred by HCHRA for the purchase of the property. The remedies specified in this Paragraph 16.B. shall be the sole and exclusive remedies available to the HCHRA upon an event of default by the HHItA under Subparagraph 16.A, (ii). - - Deleted:.( C. Notwithstanding any provision of this Agreement to the contrary, and as except as provided in the last sentence of Paragraph B., above, the HHRA and MEDA shall remain liable to the HCHRA for damages sustained by the HCHRA by virtue of any breach of this Agreement by the HHRA and MEDA. Upon notice to the HHRA and MEDA of the claimed breach and the amount of the claimed damage, the HHRA and MEDA shall have a period of time not to exceed thirty (30) days to cure the claimed breach and, if such breach is cured within the thirty (30) day period, this Agreement shall remain in full force and effect in all of its terms and conditions. If the claimed breach is not cured within the thirty (30) day period specified in the preceding sentence, the HCHRA may withhold any payments to the HHRA and MEDA for the purpose of set-off until such time as the exact amount of damages due the HCHRA from the HHRA and MEDA is determined. Following notice from the HCHRA of the claimed breach and damage, the HHRA and MEDA and the HCHRA shall attempt to resolve the dispute in good faith. D. Except as provided in the last sentence of Paragraph 16.B., above, the above remedies shall be in addition to any other right or remedy available to the HCHRA, the HHRA or the MEDA for a breach of this Agreement, including remedies available to law, statute, rule, and/or equity. E. The failure of any party to insist upon strict performance of any provision or to exercise any right under this Agreement shall not be deemed a relinquishment or waiver of the same, unless consented to in writing. Such consent shall not constitute a general waiver or relinquishment throughout the entire term of the Agreement. F. Upon written notice, HCHRA may immediately suspend or cancel this Agreement in the event any of the following occur: (i) the City of Hopkins and the City of Minnetonka do not obtain anticipated funding for right-of-way acquisition costs payable by such cities pursuant to the Agreement For Right -of -Way Acquisition with the County of Hennepin; (ii) funding for this project is withdrawn, frozen, shut -down, is otherwise made unavailable; or (iii) HCHRA determines, in its sole discretion, that funding is, or has become, insufficient. G. Notwithstanding anything to the contrary, if this Agreement is cancelled by the HCHRA for any reason other than a material default by the HHRH and U EDA after notice and a 90 day opportunity to cure, the HCHRA shall be obligated to reimburse the HHRA and VEDA for all Project -related expenditures (up to the $3,000,000 not to exceed amount in Section 1) made in reliance on this Agreement. 17. Contract Administration. To coordinate the work or services of the HHRA and MEDA with the activities of the HCHRA so as to accomplish the purposes of this contract, Patrick Connoy, or his successor, shall manage this contract on behalf of the HCHRA and serve as liaison between the HCHRA and the HHRA and MEDA. Kersten Elverum, or her successor, shall be the contact person for the HHRA. Julie Wischnack, or her successor, shall be the contact person for the MEDA. 18. Notices. Any notice or demand which must be given or made by a party under the terms of this Agreement or any statute or ordinance shall be in writing, and shall be sent registered or certified mail. Notices to the HCHRA shall be sent to the HCHRA Administrator with a copy to the originating Department at the address given in the opening paragraph of the Agreement. Notice to the MEDA shall be sent to the City Administrator at the address stated in the opening paragraph of the Agreement. Notices to the HHRA shall be sent to the Executive Director at the address stated in the opening paragraph of this Agreement. 19. Survival of Provisions. Provisions that by their nature are intended to survive the term, cancellation or termination of this Agreement include but are not limited to: INDEPENDENT CONTRACTOR; INDEMNIFICATION; DATA PRACTICES; RECORDS-AVAILABILITY/ACCESS; DEFAULT AND CANCELLATION; and MINNESOTA LAW GOVERNS. 20. Minnesota Laws Govern. The Laws of the State of Minnesota shall govern all questions and interpretations concerning the validity and construction of this Agreement and the legal relations between the parties and their performance. The appropriate venue and jurisdiction for any litigation will be those courts located within the County of Hennepin, State of Minnesota. Litigation, however, in the federal courts involving the parties will be in the appropriate federal court within the State of Minnesota. If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions will not be affected. 21. Reporting. The HHRA and MEDA must provide a written narrative on a bi-annual basis to the HCHRA describing the Project activities that have been completed in accordance with this Agreement. THIS PORTION OF PAGE INTENTIONALLY LEFT BLANK 10 AUTHORITY BOARD AUTHORIZATION HENNEPIN COUNTY HOUSING AND REDEVELOPMENT AUTHORITY STATE OF MINNESOTA Reviewed by the County Attorney's Office Date: APPROVED AS TO EXECUTION: By: Assistant County Attorney Date: HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF HOPKINS By: Chair And: Executive Director By: Chair of Its Board Date: ATTEST: Deputy Clerk of County Board Date: By: Executive Director Date: By: Deputy Executive Director Date: ECONOMIC DEVELOPMENT AUTHORITY IN AND FOR THE CITY OF MINNETONKA By: President And: Executive Director Date: Date: 11