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HRA Report 2014-02 Parking Lot Improvement Agreement - Shady Oak Road-4m January 30, 2014 City of Hopkins HRA Report 2014-02 PARKING LOT IMPROVEMENT AGREEMENT - SHADY OAK ROAD Proposed Action Staff recommends adoption of the following motion: Move to approve the Parking Lot Improvement Agreement between the Housing and Redevelopment Authority In and For the City of Hopkins Minnesota (the "Hopkins HRA") the Economic Development Authority in and for the City of Minnetonka ("Minnetonka EDA") the City of Hopkins ("Hopkins"), and the City of Minnetonka, Minnesota ("Minnetonka"). 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/Hopkins HRA 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 negotiations with eligible property owners, the City has agreed to utilize the Community Works funds for private parking lot improvements. The improvements are anticipated to be completed on three properties: VFW parking lot and Syndicate Sales parking lot (currently owned by the HRA) in Hopkins and the Ring property in Minnetonka. In order to coordinate the improvements in the most efficient manner, the City of Minnetonka has agreed to manage the construction of all three projects. This arrangement was contemplated under the Community Works agreement and in negotiations with the various property owners. It also relieves the City of Hopkins of this oversight at a time when staff availability is an issue. Primary Issues to Consider The proposed agreement is consistent with previous discussions. All costs of project management and design will be eligible for reimbursement under the Hennepin County Community Works agreement. The improvements will be designed with full input from the property owners. nt Agreement of Planning & Development Financial Impact: $ 0 Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: AGREEMENT REGARDING PARKING LOT IMPROVEMENTS FOR SHADY OAK ROAD IMPROVEMENT PROJECT THIS AGREEMENT is made by and between the Housing and Redevelopment Authority in and for the City of Hopkins, Minnesota (the "Hopkins HRA"), the Economic Development Authority in and for the City of Minnetonka ("Minnetonka EDA"), the City of Hopkins ("Hopkins"), and the City of Minnetonka, Minnesota ("Minnetonka"). RECITALS A. The Hopkins HRA and Minnetonka EDA, together with the County of Hennepin Housing and Redevelopment Authority ("HCHRA"), are parties to a Cooperative Agreement for Shady Oak Road Community Works Project, Hennepin County Contract No. A120493 (the "Cooperative Agreement"). B. Under the Cooperative Agreement, the HCHRA has agreed to reimburse the Hopkins HRA and Minnetonka EDA for construction of new parking lots and improvement of existing parking lots on specific properties located in Hopkins and Minnetonka and adjacent to Shady Oak Road (the "Parking Improvements"). C. The Cooperative Agreement contemplates that Minnetonka will provide project management for the construction of the Parking Improvements, subject to reasonable approval of Hopkins staff as to location and design for properties located in Hopkins. D. This Agreement is for the purpose of implementing the Cooperative Agreement and coordinating the parties' respective roles in: approval of design and location; letting and managing the contracts for the Parking Improvements; and paying 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, the parties agree as follows: 1. Defmitions. For purposes of this Agreement, the following terms have the meanings set forth below: 1 HOPC NIL/ShadyOakRoadParkinghnproveinents. 1/27/17 Construction Contract means the contract for construction of the Parking Improvements; Construction Contractor means the contractor to which Minnetonka awards the Construction Contract; Design Contract means the contract for design and engineering services referenced in Paragraph 2 of this Agreement; Design Contractor means the contractor that Minnetonka selects to perform the Design Contract; Owner means the fee owner of a Property; Parking Area means any area on which Parking Improvements may be constructed, in accordance with Paragraphs 4.B., 4.C. and Attachment A of the Cooperative Agreement, as it may be amended or modified; Parking Improvements means any parking lot improvements authorized by Paragraphs 4.B. and 4.C. of the Cooperative Agreement, as it may be amended or modified; Parking Lot Improvement Agreement means that certain Parking Lot Improvement Agreement between George W. Wolff Post No. 425, Veterans of Foreign Wars of the United States ("Post 425"), Hopkins HRA and Minnetonka for the construction of Parking Improvements on land owned by Post 425 and located in the City of Hopkins. Project Costs includes all amounts paid by Minnetonka under the Design Contract and Construction Contract, including change order amounts, interest, penalties, and delay damages, if any; Property means any real property on which specific Parking Improvements are to be constructed; Properties means all real properties on which Parking Improvements are constructed; 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. Design and Engineering. As promptly as reasonably possible after the effective date of this Agreement, Minnetonka will enter into a Design Contract with a qualified engineering company to perform all necessary services for the design and engineering of the Parking Improvements. Minnetonka will not enter into any Design Contract for 2 HOPCIVILShadyOakRoadParkingImp rovements.1/27/ 17 Parking Improvements located within the City of Hopkins, other than a Design Contract entered into pursuant to the Parking Lot Improvement Agreement, without the prior written consent of the Hopkins HRA and Hopkins. Such consent, but not the Design Contract, may be conditioned upon the Hopkins HRA receiving confirmation of availability of funding for any such Parking Improvements under the Cooperative Agreement. Minnetonka will award the Design Contract in the manner required by law. The Design Contract must include a provision that each Owner is an intended third party beneficiary of the contract and is entitled to enforce all implied or express warranties with respect to the design of Parking Improvements on the Owner's Property. Minnetonka will cause the Design Contractor to promptly prepare a preliminary design for the Parking Improvements, and, after the preliminary design has been approved as provided in Paragraph 3, to prepare plans and specifications for the construction of the Parking Improvements. 3. Review and Approval of Design and Specifications. Minnetonka will coordinate with Hopkins regarding the design for any Parking Improvements to be located within Hopkins. Unless otherwise agreed by Hopkins and Minnetonka, Hopkins is responsible for keeping affected Owners in Hopkins informed about the design plans and for obtaining the Owners' comments and requested changes. Minnetonka is responsible for keeping Owners in Minnetonka informed about design plans and obtaining Owners' comments and requested changes. Minnetonka will direct the Design Contractor to prepare plans and specifications for the construction of the Parking Improvements, consistent with the design that is approved by Hopkins (for Properties in Hopkins) and Minnetonka (for Properties in Minnetonka). Minnetonka will submit the final plans and specifications and contract documents to Hopkins for review and comment prior to Minnetonka approving the final plans and specifications. The contract documents must require (a) that the Construction Contractor 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; (c) that the Construction Contractor separately 3 HOPCrVIUShady0akRoadParkingImprovements.1/27/ 17 account for labor and material quantities provided each Parking Improvement, in order to facilitate accounting among the parties for Project Costs; and (d) that each Owner is a third party beneficiary of the Construction Contract and is entitled to enforce all contract warranties with respect to the Parking Improvements on the Owner's Property. 4. Construction Contract. Minnetonka will award one or more Construction Contract(s) in the manner required by law. Minnetonka will not enter into any Construction Contract for Parking Improvements located within the City of Hopkins, other than a Construction Contract entered into pursuant to the Parking Lot Improvement Agreement, without the prior written consent of the Hopkins HRA and Hopkins. Such consent, but not the Construction Contract, may be conditioned upon the Hopkins HRA receiving confirmation of availability of funding for any such Parking Improvements under the Cooperative Agreement. Before awarding a Construction Contract, Minnetonka will provide the public response or bid data to Hopkins HRA and Hopkins for review. Minnetonka will not award a Construction Contract for construction of Parking Improvements until the following conditions have been satisfied: (a) the Hopkins HRA shall have obtained and delivered to Minnetonka a signed license or right of entry for each Property located in Hopkins where the work will be performed, in a form acceptable to Minnetonka, including the Owner's release and waiver of liability of any claims against Minnetonka for design or construction defects; (b) the Minnetonka EDA must provide Minnetonka with a signed license or right of entry for each Property located in Minnetonka where the work will be performed, in a form acceptable to Minnetonka, including the Owner's release and waiver of liability of any claims against Minnetonka for design or construction defects; (c) Hopkins HRA and Minnetonka EDA must each confirm in writing that that it agrees to the contract award. 5. Proiect Management. Minnetonka agrees to provide project management services for the Parking Improvements construction. Minnetonka will communicate on at least a weekly basis with Hopkins HRA, Minnetonka EDA, and Owners regarding the progress and status of construction. Minnetonka will coordinate the Parking Improvements 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. Minnetonka will pay its internal costs in managing the Design Contract and Construction 4 HOPCIV ILShadyOakRoadParking bnprovements. 1/27/17 Contract, including its employees' time and benefits, but Minnetonka is entitled to reimbursement of all Project Costs as provided in Paragraph 7. 6. Changes to Parking Improvements. After Minnetonka has awarded the Design Contract and Construction Contract, 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 or Minnetonka EDA, as appropriate, based on the location of the Property on which the change will occur. 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. For the Parking Improvements to be completed pursuant to the Parking Lot Improvement Agreement, 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. For other Parking Improvements, Minnetonka has the authority to make non -material changes in the field without prior approval but Minnetonka agrees to consult with Hopkins HRA, Minnetonka EDA, and affected Owners regarding field changes, whenever practical. Changes must be documented by written change orders, which must 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 7. 7. Payment of Project Costs. The estimated Project Costs for the construction of each Parking Improvement are set forth on the attached Exhibit A. The parties acknowledge that the design and bidding process may result in substantial changes to the estimated Project Costs. Minnetonka will provide Hopkins HRA and Minnetonka EDA with revised estimates of the Project Costs prior to awarding the Design Contract and Construction Contract(s), including an allocation of Project Costs for each Parking Improvement. Prior to the approval of each pay request submitted by the Design Contractor or Construction Contractor, Minnetonka will update the Project Costs and invoice the Hopkins HRA and Minnetonka EDA for their respective shares of each payment. Minnetonka will make all required contract payments in a timely fashion, to avoid interest or work delays. Hopkins HRA agrees to reimburse Minnetonka for all 5 HOPC NI UShadyOakRoadParkinghnprovements.1/27/17 Project Costs attributable to Parking Improvements located in Hopkins, and Minnetonka EDA agrees to reimburse Minnetonka for all Project Costs attributable to Parking Improvements located in Minnetonka; payments are due 60 days after invoice. Hopkins HRA and Minnetonka EDA are each responsible for obtaining funds from affected Owners and the HCHRA in order to reimburse Minnetonka for the Parking Improvements, but failure to secure the funds will not excuse the obligation to pay Minnetonka. S. 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 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. Nothing herein contained shall be construed to place the Hopkins HRA, Minnetonka EDA or Minnetonka in an agency, partnership or joint venture relationship. There are no third party beneficiaries of this Agreement, intended or otherwise, other than Post 425. Post 425 is an intended third party beneficiary of this Agreement as to any provisions of this Agreement that apply to construction of Parking 6 HOPCNILShady0akRoadParkinglmprovements.1/27/ 17 Improvements to be constructed pursuant to the Parking Lot Improvement Agreement or payment of the costs of construction of such Parking Improvements. 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 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 the Hopkins HRA: Hopkins HRA Attn: Assistant Executive Director 1010 First Street South Hopkins, MN 55343 If to Minnetonka EDA: Minnetonka EDA Attn: Community Development Director 14600 Minnetonka Boulevard Minnetonka, MN 55345 If to Minnetonka: City of Minnetonka Attn: City Engineer 14600 Minnetonka Boulevard Minnetonka, MN 55345 11. Assignment. 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, provided that the foregoing shall not be deemed to prohibit Minnetonka from retaining design professionals and contractors to design and manage construction of the Parking Improvements. No provision of this Agreement shall be interpreted to waive or any way modify any statutory or common law immunity from liability available to Hopkins, the Hopkins HRA or Minnetonka. 12. Entire Apreement. 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. In the event of any conflict between the provisions of this Agreement and the provisions of the Parking 7 HOPCNIL/Shady0akRoadParkingImprovements.1/27/17 Lot Improvement Agreement, the provisions of the Parking Lot Improvement Agreement shall control, but only with respect to the subject matter of the Parking Lot hmprovement Agreement and performance of the parties' obligations thereunder. 13. 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. 14. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Mirmesota. 15. 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. 16. 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. CITY OF MINNETONKA By: Its Mayor By: Its City Manager MINNETONKA ECONOMIC DEVELOPMENT AUTHORITY By: Its President By: Its Executive Director Title: 8 HOPCIVIL/ShadyOakRoadParkinelmprovements. 1/27/17 THE HOUSING AND REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF HOPKINS By: Its Chairperson By: Its Executive Director CITY OF HOPKINS By: Its Mayor By: Its City Manager EXHIBIT A Legal Description And Drawing of VFW Property Delineating Parking Area HOPCIVIUShady0akRoadParkinghnprovements.1/27/ 17 EXHIBIT B Description Of Parking Improvements 10 HOPCPJILShadyOakRoadParking Improvements.1/27/17