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HRA Report 2013-10 Parking Lot Improvement AgreementGi y of Hopkins October 11, 2013 HRA Report 2013-10 PARKING LOT IMPROVEMENT AGREEMENT Proposed Action Staff recommends adoption of the following motion: Move to approve the Parking Lot Improvement Agreement between the Hopkins HRA and the George R. Wolff Post No. 425, Veterans of Foreign Wars of the United States (VFW). With this motion, it is understood that minor modifications can be made to the agreement that do not affect the overall intent. Overview As part of the Shady Oak Road reconstruction project, the City of Hopkins received Community Works funds to help offset the parking lost to the road project and create redevelopment opportunities. One of the eligible activities under the grant agreement with Hennepin County is to improve private parking lots. Through the agreement, the VFW will contribute a portion of the settlement under the road project totaling $96,000. That will be combined with Community Works funds to fund the following improvements: o Necessary water drainage structures o A modular block retaining wall (with a fence on top of it) on the west side of the existing parking to support additional parking o Four light standards o Curb and gutter around the perimeter of the parking lot o New parking lot base and asphalt o Striping that meets all applicable city codes regarding minimum number of handicap accessible stalls The total cost of the project is estimated at $216,845. The improvements will be managed by the City of Minnetonka under a separate agreement, currently being drafted. Primary Issues to Consider The proposed project and cost-sharing approach is an eligible activity under the Community Works contract, and has benefits to both parties. It will create additional parking for the VFW and improve the look and function of the corridor. Supporting Documents • Parking,Lot ImprovemeN Agreement Kersten erum Director bf Planning & Development Financial Impact: $ 0 Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: PARKING LOT IMPROVEMENT AGREEMENT THIS AGREEMENT is made and entered into as of this day of , 2013 by and between the George R. Wolff Post No. 425, Veterans of Foreign Wars of the United States, a Minnesota non-profit corporation ("Post 425") and The Housing And Redevelopment Authority in and for the City of Hopkins, Minnesota (the "Hopkins HRA") RECITALS A. Post 425 is the owner of Real Property located at 100 Shady Oak Road, Hopkins, Minnesota, legally described and graphically depicted in Exhibit A attached hereto (the "VFW Property"). B. In connection with its the Road Project, as defined below, Hennepin County, Minnesota will acquire permanent right-of-way and drainage and utility easements and a temporary construction easement (collectively, the "Easements") over the VFW Property. Hennepin County has offered and Post 425 has agreed to accept the sum of Two Hundred Thirty- three Thousand Two Hundred Dollars ($233,200.00) (the "Award") in compensation for the acquisition of the Easements, severance damages and loss of site improvements. In consideration of the undertakings of the Hopkins HRA and Minnetonka as stated in this Agreement, Post 425 has agreed to use a portion of the Award, in the amount of Ninety-six Thousand Dollars ($96,000.00), to pay for parking lot improvements to the parking lot located on the VFW Property in accordance with the terms and conditions of this Agreement. C. The Hopkins HRA is a party to that certain Cooperative Agreement for Shady Oak Road Community Works Project dated November 16, 2012, (the "Cooperative Agreement") between the Hopkins HRA, the County of Hennepin Housing and Redevelopment Authority ("HCHRA") and the Economic Development Authority in and for the City of Minnetonka ("MEDA"). Pursuant to the Cooperative Agreement, the Hopkins HRA is entitled to receive certain community works improvement funds from the HCHRA for redevelopment of properties adjacent to the Road Project. The Hopkins HRA has agreed to use a portion of the community works improvement funds to be disbursed to the Hopkins HRA under the Cooperative Agreement to pay for the "Parking Improvements" to the VFW Property identified in this Agreement, subject to and upon the terms and conditions stated in this Agreement. HOPCIV IUParkingLothnprovementAgreement.9.18.13 I D. The Cooperative Agreement provides and the parties to this Agreement have agreed that the City of Minnetonka ("Minnetonka") shall act as the project manager for the Parking Improvements identified in this Agreement. The Hopkins HRA, Minnetonka, the City of Hopkins ("Hopkins") and the Economic Development Authority in and for the City of Minnetonka ("Minnetonka EDA") have entered into an Agreement Regarding Parking Lot Improvements for Shady Oak Road Improvement Project dated , 2013, (the "Shady Oak Road Parking Lot Agreement") by which the Hopkins HRA, Hopkins, the Minnetonka EDA and Minnetonka have agreed that Minnetonka shall act as the project manager for the Parking Improvements. NOW, THEREFORE, in consideration of the foregoing Recitals which are incorporated in and made a part of this Agreement, and other good and valuable consideration, Post 425 and the Hopkins HRA agree as follows: 1. Definitions. When used in this Agreement, the following terms have the meanings set forth below: Parking Area means the area designated as such in the attached Exhibit A. Parking Improvements means the improvements generally described in the attached Exhibit B. Road Project means Hennepin County Project 9112 (State Aid Project 27-661-046), which involves the reconstruction of County State Aid Highway No. 61 (Shady Oak Road) from CSAH 3 (Excelsior Boulevard) to north of Trunk Highway 7 in the City of Hopkins and the City of Minnetonka. 2. Parking Improvements. The parties agree that the Parking Improvements on the VFW Property shall be completed in accordance with the terms and conditions of this Agreement. The Parking Improvements are to be performed and installed within the Parking Area, with such work to be coordinated with the Road Project, currently scheduled to commence construction in the spring of 2014. a. Design and Engineering. The Shady Oak Road Parking Lot Agreement provides that, as project manager for the Parking Improvements, Minnetonka shall contract for all necessary design and engineering services for the Parking Improvements; and that the costs incurred in obtaining such design and engineering services shall be included in the Project Costs to be paid in accordance with the provisions of Paragraph 5 of this Agreement. Minnetonka's contracts for design and engineering services must include a provision that HOPCNII/ParldngLotImprovementAgreement.9.18.13 2 Post 425 is an intended third party beneficiary of the contracts and is entitled to enforce all implied or express warranties for the Parking Improvements design. The Shady Oak Road Parking Lot Agreement provides that Minnetonka will not award any contract for design or engineering services until it has received written confirmation the Hopkins HRA waiving the contingencies in Paragraph 5(b) with respect to the design and engineering contract costs but not with respect to the other Project Costs. Pursuant to the Shady Oak Road Parking Lot Agreement, and as promptly as reasonably possible following the award of the design and engineering contract(s), Minnetonka shall cause the proposed final plans and specifications for the Parking Improvements to be prepared, which shall substantially conform with the description of the Parking Improvements stated in Exhibit B, and deliver such plans and specifications to the Hopkins HRA. The Hopkins HRA shall promptly deliver copies of such plans and specifications to Post 425. Within twenty (20) business days of receipt of such plans and specifications, Post 425 and the Hopkins HRA shall notify each of the other parties of their approval or disapproval of the plans and specifications and, in the case of disapproval, the specific reasons therefor. Thereafter, the parties shall confer and resolve any objections to the final plans and specifications for the Parking Improvements. The Shady Oak Road Parking Lot Agreement provides that Minnetonka will not advertise for bids until the Hopkins HRA has approved the proposed plans and specifications and contract documents, which approvals shall not be unreasonably withheld or delayed. The Hopkins HRA shall not approve the proposed plans and specifications for the Parking Improvements until such plans and specifications have been approved by Post 425 and the Hopkins HRA pursuant to the provisions of this Paragraph a. b. Contract Letting. The Shady Oak Road Parking Lot Agreement provides that Minnetonka will advertise and award the contract for construction of the Parking Improvements in the manner required by law. After bid opening and before awarding the contract, Minnetonka will provide the public bid information to the Hopkins HRA for review and the Hopkins HRA shall promptly deliver such public bid information to Post 425. The Shady Oak Road Parking Lot Agreement provides that Minnetonka will, not award the contract until the Hopkins HRA has confirmed in writing that the contingency to the payment of funds, as provided in Paragraph 5(b) (as to Hopkins HRA) has been satisfied or waived. The Hopkins HRA will not waive such contingency until such time as Post 425 confirms in HOPCNIUParkingLotImprovementAgreement.9.18.13 3 writing that the contingency to the payment of funds, as provided in Paragraph 5(a) (as to Post 425) has been satisfied or waived. 3. Time of Performance. The contract for construction of the Parking Improvements must require a) that the Parking Improvements contractor must coordinate its work with that of Hennepin County staff and contractors on the Road Project, in order to avoid conflicts or delays in construction on both projects; and in order to minimize disruption of or damage to the Parking Improvements as a result of the Road Project work; b) that the construction of the Parking Improvements must proceed and be completed as soon as reasonably possible using standard construction methods and techniques without overtime or other extraordinary construction practices; and c) that Post 425 shall be a third party beneficiary of the contract and shall be entitled to enforce all warranties of the construction and performance of the Parking Improvements. 4. Project Management. The Shady Oak Road Parking Lot Agreement contains the following terms and conditions regarding project management by Minnetonka, namely: (a) Minnetonka shall provide project management services for the Parking Improvement construction. (b) Minnetonka shall contract for the design, engineering and construction services required for construction of the Parking Improvements, provided Minnetonka shall have no liability for defects in the design or construction of the Parking Improvements or negligence in the performance of such work. (c) As part of its project management services, Minnetonka will provide project inspection services utilizing Minnetonka employees. (d) Minnetonka shallmanage the contract with due diligence and reasonable care and to communicate on at least a weekly basis with Post 425 and Hopkins HRA regarding the status of construction. All costs incurred by Minnetonka in contracting for the design, engineering and construction of the Parking Improvements shall be paid as specified in Paragraph 5 of this Agreement. Post 425 and Hopkins HRA agree Minnetonka shall be entitled to receive a project management fee of four percent (4%) of the construction costs paid to the contractor retained by Minnetonka to construction the Parking Improvements, such fee to HOPCIVIUParkingL.otImprovementAgreement.9.18.13 4 be included in the Project Costs and paid in accordance with the provisions of Paragraph 5 of this Agreement. Minnetonka will not be reimbursed for its internal costs in managing the Parking Improvements contract, including its employees' time and benefits, but it is entitled to reimbursement of all Project Costs as provided in Paragraph 5. 5. Payment of Project Costs. The costs associated with the design, engineering and construction of the Parking Improvements described in Exhibit B are estimated to be Two Hundred Forty-six Thousand Six Hundred Twenty-two and 80/100 Dollars ($246,622.80). Such costs are subject to adjustment during the design and bidding process. The final Project Costs, consisting of the fees, costs and expenses incurred by Minnetonka for the design and engineering of the Parking Improvements plus all construction costs as stated in the contract(s) and change order(s) entered into by Minnetonka for the Parking Improvements, ("Project Costs"), are subject to approval by Post 425, the Hopkins HRA and Minnetonka, such approval not to be unreasonably withheld or delayed. Hopkins HRA and Post 425 will reimburse Minnetonka for Project Costs, as follows: (a) Post 425 shall contribute the sum of Ninety-six Thousand Dollars ($96,000.00) ("VFW Contribution") in partial payment of the Project Costs. This sum is to be deposited with the Hopkins HRA upon receipt of the Award from Hennepin County; and the obligation of Post 425 to contribute and deposit the VFW Contribution is subject to and contingent upon receipt of the Award by Post 425. The VFW Contribution is to be held by the Hopkins HRA without interest and disbursed in partial payment of the Project Costs for the Parking Improvements as specified in this Paragraph 5. (b) The Hopkins HRA shall contribute the balance of the Project Costs (the "HRA Contribution"). The HRA Contribution is estimated to be One Hundred Fifty Thousand Six Thousand Twenty-two and 80/100 Dollars ($150,622.80), but is subject to adjustment upon approval of the final plans and specifications and construction contracts for the Parking Improvements by all of the parties to this Agreement. The obligation of the Hopkins HRA to contribute the HRA Contribution in partial payment of the costs of construction of the Parking Improvements is subject to and contingent upon the Hopkins HRA's receipt of disbursements of community works improvement funds for that purpose in accordance with the terms and conditions of the Cooperative Agreement. HOPCNIUParkingLotImprovementAgreement.9.18.13 5 (c) The Shady Oak Road Parking Lot Agreement provides that periodically, but no more frequently that every thirty (30) days, Minnetonka or the contractor(s) retained to design and construct the Parking Improvements shall submit the detailed draw requests to the Hopkins HRA itemizing the unpaid design, engineering and construction costs incurred to date and requesting payment thereof. The Hopkins HRA shall promptly deliver copies of such detailed draw requests to Post 425. Post 425 and Hopkins HRA will be allowed 10 business days to provide written objections regarding the requested payment. The Hopkins HRA shall immediately deliver such written objections to Minnetonka. If an objection is received, Minnetonka will withhold payment to the extent permitted by its contract. Approval of a draw request may be conditioned on receipt of satisfactory evidence that the work comprising the Parking Improvements and completed to date has been completed in a lien free and satisfactory manner. By separate agreement, the parties to this Agreement may retain a third party disbursing agent for the purpose of reviewing and approving draw requests and administering payments. (d) Payment of each approved draw request shall be funded by the VFW Contribution and the HRA Contribution pro rata and in proportion to the respective amounts of such contributions. The HRA Contribution shall be funded with community works improvement funds pursuant to the Cooperative Agreement and is to be disbursed by the HCHRA in accordance with the terms and conditions of that Agreement. Hopkins HRA will pay the HRA Contribution and VFW Contribution to Minnetonka in a timely fashion in accordance with the provisions of this Agreement, to avoid contract interest and penalties, and separately will submit appropriate documentation to the HCHRA for reimbursement pursuant to the Cooperative Agreement. 6. Changes to Parking Improvements. The Shady Oak Road Parking Lot Agreement provides that, after Minnetonka has awarded the contract for the Parking Improvements, and the preliminary Project Costs have been established, no material changes to the Parking Improvements, scope of work or Project Costs shall be made without the prior written approval of the Hopkins HRA and Minnetonka, such approval not to be unreasonably withheld or delayed. The Hopkins HRA shall promptly submit all requests for changes to the Parking Improvements, scope of work or Project Costs to Post 425 for HOPCNIUParkingL.otImprovementAgreement.9.18.13 6 approval, which approval shall not be unreasonably withheld or delayed, and the Hopkins HRA shall not approve any material changes without the prior approval of Post 426. For purposes of this Paragraph 6 a "material change" is one that would result in an increase in the Project Costs greater than Two Thousand Five Hundred Dollars ($2,500.00) on any single occasion or Ten Thousand Dollars ($10,000.00), in total, for all change orders or would modify the design of the Parking Improvements in any materially adverse manner. The Shady Oak Road Parking Lot Agreement provides that Minnetonka has the authority to make non -material changes in the field and agrees to consult with Post 425 and the Hopkins HRA before approving such field changes, whenever practicable. Changes shall be documented by written change orders, which shall describe the agreed upon changes to the Parking Improvements and any increase or decrease in the Project Costs. Unless otherwise agreed by the parties, change orders will not alter the parties' respective payment obligations under Paragraph 5. 7. Grant of License. Post 425 grants Minnetonka and the contractor(s) retained to construct the Parking Improvements a license (the "License") to use the Parking Area delineated on Exhibit A for the construction and performance of the Parking Improvements. The License is granted for the purpose of entering upon and reconstructing the Parking Area and the performance of all work and activities reasonably necessary for the construction and completion of the Parking Improvements. The contract(s) for the performance of the Parking Improvements shall require the contractor(s) to perform the Parking Improvement work in a manner that will not unreasonably interfere with the ongoing use of the Parking Area for activities customarily conducted by Post 425 on the VFW Property. The License shall remain in effect until such time as the Parking Improvements have been fully completed, as certified by the engineer retained by the City of Minnetonka to design the Parking Improvements. 8. Resolution of Disputes. (a) MEDIATION. Any disputes between the parties to this Agreement regarding the interpretation or enforcement of this Agreement shall, upon the written request of any party hereto, be submitted to mediation. Upon a request for mediation, a qualified mediator shall be selected by all of the parties, or if they cannot so agree, the party requesting mediation shall select one mediator and the other parties shall select a second mediator, and the two mediators shall select a third, qualified mediator who shall act as mediator. The chosen mediator shall conduct at least two mediation sessions, with representatives of all parties present. If no HOPCNIUParkingLotImprovementAgreement.9.18.13 7 agreement is reached after two mediation sessions, the parties shall submit the dispute to arbitration as set forth in Subparagraph (b) below. (b) BINDING ARBITRATION. If the parties are unable to resolve a dispute by mediation, the issues in controversy shall be submitted to and resolved by binding arbitration pursuant to the arbitration rules of the American Arbitration Association and Minn. Stat. Chapter 572, as then in effect. Such arbitration shall be conducted by a single arbitrator mutually approved by all of the parties. If the parties cannot agree as to selection of an arbitrator, the party requesting or submitting the dispute to arbitration shall select one arbitrator and the other parties shall select a second arbitrator, and the two arbitrators shall select a third, qualified arbitrator who shall conduct the arbitration proceeding and serve as the arbitrator. The decision of the arbitrator shall be final and binding upon all of the parties to this Agreement. (c) RESOLUTION OF DISPUTES. Any dispute shall be resolved in a manner consistent with the terms of this Agreement. 9. Relationship of the Parties. Incorporation of Shady Oak Road Parking Lot Agreement. Nothing herein contained shall be construed to place Post 425 or the Hopkins HRA in an agency, partnership or joint venture relationship. No party shall have the right to obligate or bind the other in any manner whatsoever and nothing contained herein shall give or is intended to give any rights of any kind to third parties, including the contractor(s) retained to construct the Parking Improvements. Except as provided in the following paragraph, there are no third party beneficiaries of this Agreement, intended or otherwise. The Hopkins HRA and Post 425 acknowledge Minnetonka is an intended third party beneficiary of this Agreement. All terms and conditions of the Shady Oak Road Parking Lot Agreement pertaining to the construction of the Parking Improvements and payment of the costs associated therewith are incorporated in and made a part of this Agreement. However, in the event of any conflict between the provisions of the Shady Oak Road Parking Lot Agreement and this Agreement, the provisions of this Agreement shall control. 10. Notices. All notices required or permitted hereunder shall be personally delivered, sent by registered or certified mail, return receipt requested, or sent by nationally recognized overnight delivery carrier; and if personally delivered, shall be deemed given on the date delivered, if sent by registered or certified mail, shall be deemed given two (2) business days after the date of deposit with the U.S. Postal Service, and if sent by overnight delivery carrier, shall be deemed given one (1) business day after the date of delivery to HOPCNIUParkingL.otlmprovementAgreement.9.18.13 8 such carrier within its deadline for overnight delivery, addressed to the parties as follows (or to such other address as either party may notify the other as provided herein): If to Post 425: George R. Wolff Post No. 425, Veterans of Foreign Wars of the United States Atten: 100 Shady Oak Road Hopkins, MN 55343 If to the Hopkins HRA: Hopkins HRA Atten: Assistant Executive Director 1010 First Street South Hopkins, MN 55343 11. Assissnment. Neither this Agreement, the License nor any other rights or obligations hereunder shall be assigned or delegated by either party hereto without the prior written consent of the other parties. 12. Waiver of Claims. Post 425 agrees that the Hopkins HRA and Minnetonka and such parties' elected officials and employees shall not be liable to Post 425 or those claiming through or under Post 425 for: a) any injury, death or property damage occurring in, on or about the VFW Property at any time during the construction of the Parking Improvements or incurred as a result of the construction of the Parking Improvements; or b) any alleged defects in the design or construction of the Parking Improvements or negligence of the parties providing engineering, design or construction services, with the exception of any claims or liabilities resulting solely from the negligence of the Hopkins HRA, Minnetonka or their employees. No provision of this Agreement shall be interpreted to waive or Any way modify any statutory or common law immunity from liability available to the Hopkins HRA or Minnetonka. 13. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and shall not be notified or amended except by an instrument in writing signed by the party sought to be charged therewith. 14. Waiver. The failure of either party at any time to demand strict performance by the other of any of the terms, covenants or conditions set forth herein shall not be construed as a continuing waiver or relinquishment thereof, and any party may, at any time, demand strict and complete performance by the other of the terms, covenants and conditions hereof. HOPCNIUParldngLotImprovementAgreement.9.18.13 9 15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota. 16. Severability. If any of the provisions of this Agreement shall be held invalid, illegal or unenforceable in any respect, the remaining provisions hereof shall not in any way be affected or impaired thereby and shall be valid, legal and enforceable to the full extend permitted by law. 17. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which taken together, shall constitute one and the same instrument. IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto as of the date set forth above. The remainder of this page is intentionally left blank Signatures are on Page 10 HOPCNILParkinglotImprovementAgreement.9.18.13 10 L GEORGE R. WOLFF POST NO. 425, VETERANS OF FOREIGN WARS OF THE UNITED STATES By: _ Name: Title: By: _ Name: Title: THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF HOPKINS By: Name: Title: By: Name: Title: EXHIBIT A Legal Description And Drawing of VFW Property Delineating Parking Area HOPCIVIUParkingLotImprovementAgreement.9.18.13 11 EXHIBIT B Description Of Parking Improvements HOPCNIL/ParkingLotlmpmvementAgreement.9.18.13 12