ARLINGTON COUNTY, VIRGINIA. County Board Agenda Item Meeting of January 26, 2019

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ARLINGTON COUNTY, VIRGINIA County Board Agenda Item Meeting of January 26, 2019 DATE: January 18, 2019 SUBJECT: Memorandum of Agreement ("MOA") between Arlington County Government acting through the

1 ARLINGTON COUNTY, VIRGINIA County Board Agenda Item Meeting of January 26, 2019 DATE: January 18, 2019 SUBJECT: Memorandum of Agreement ("MOA") between Arlington County Government acting through the Department of Parks and Recreation ("DPR") and Queens South Nine Limited Partnership ("South Nine") and Queens North Four Limited Partnership ("North Four" and together with South Nine, "APAH"). C. M. RECOMMENDATION: Authorize the County Manager or his designee to sign an MOA with APAH for the design, construction, operation and maintenance of a public playground as part of the APAH residential development at 1801 N. Quinn St. ISSUES: There are no known issues related to this MOA at the date of this report. SUMMARY: This is a request for authorization for the Arlington County Government, through DPR, to enter into an MOA with APAH to detail the responsibilities of the Parties related to the design, construction, operation and maintenance of a 9,000-square foot public park site. BACKGROUND: The County Board approved Site Plan #444, Queens Court Residences ( Site Plan ) and associated actions on February 25, 2017 to permit APAH to construct a 12-story apartment building containing 249 committed affordable housing units located at 1801 N. Quinn St. APAH is providing a 9,000-square foot public park (the Park ) easement to implement a public playground as recommended in the West Rosslyn Area Plan (WRAP) and the Rosslyn Highlands Park + Coordinated Open Spaces Plan. As required by site plan condition, APAH shall enter into an MOA with DPR to detail the responsibilities of the Parties related to the design, construction, operation and maintenance of the Park. DISCUSSION: The attached MOA, developed in coordination with APAH, defines the roles and responsibilities of DPR and of APAH as directed in the Site Plan conditions. APAH is responsible for providing $125,000 to Arlington County towards development of the Park, whereas the County will be responsible for providing all Park costs above the $125,000 APAH contribution for design, permitting, construction, and maintenance of the Park. Additionally, County Manager: ##### County Attorney: ***** 20. Staff: Jeremy Smith, Department of Parks & Recreation

2 APAH is responsible for communicating and sharing information with the County on a regular basis regarding the development of the Queens Court Residences; installing fences, gates walls or other landscaping enclosures necessary to maintain the security and safety of the building residents; providing a garage slab suitable to accommodate the use of the Park Easement and the Park design; Paying for, inspecting and providing a certification as to the installation of any lightweight fill or geofoam installed by the County to facilitate the use of the Park; installing, and maintaining lights required for emergency pathway illumination through the Park; and allowing the County access to and use of a water spigot for maintenance needs. The County is responsible for providing an interim condition of the Park in the event that the County cannot construct the ultimate buildout of the park in a timely manner; providing an easement to APAH to access the garage slab for repairs or maintenance; constructing street and Park-serving utilities along the park frontage; and reimbursing APAH for any damage to the building, slab, or property caused by County construction or maintenance of the Park. PUBLIC ENGAGEMENT: Level of Engagement: As typical, community-wide public engagement was not required for the development of the MOA document. Outreach Methods: There was a robust public engagement process during the development of the WRAP and the Rosslyn Highlands Park + Coordinated Open Spaces Plan which initially envisioned the Park. Continued engagement is ongoing for the development of the final Park design. To date there have been two online feedback opportunities and one community meeting related to the concept development and final design details of the Park. FISCAL IMPACT: APAH will be responsible for providing $125,000 to Arlington County for the development of the Park (account code WRAP.0.0). The County will be responsible for providing all remaining Park costs, estimated at $1,492,000. The project is included in the Adopted Fiscal Years Capital Improvement Plan as a Fiscal Year 2020 project

4 that date which is five (5) years following the date of commencement of the MOA. Thereafter, this MOA shall be automatically renewed for successive one-year periods unless: (1) either party advises the other party in writing of its intention not to renew the MOA at least ninety (90) days prior to the annual renewal date; (2) the parties otherwise mutually agree to terminate the agreement; or (3) the County terminates the MOA in accordance with the Termination provisions set forth herein. The County agrees that, in order for such termination to be effective, the County shall (a) remove all fixtures and equipment from the Park, and (b) place the Park into the Interim Condition (as described below) prior to the date of termination (completion of such actions to be known as the Termination Condition ). 2. APAH Responsibilities A. Prior to the issuance of any building permit to APAH, APAH shall contribute $125,000 to Arlington County to be used for the development of the Park. Any of the costs associated with complying with any of APAH s additional responsibilities stated elsewhere in the MOA, such as but not limited to sections 2(C), 2(D), 2(E), 2(F), and 2(G) shall be in addition to such $125,000 cash contribution. B. Communicate and share information with the County on a regular basis regarding the development, including, but not limited to: i. Share utility plan information with the County. ii. Determine location of the garage intake, as agreed upon by both Parties. iii. Set elevation of structural slab and identify areas of the Park in which five (5) feet of soil depth can be provided, as agreed upon by both Parties. iv. Consent to and cooperate with Park use permit to be obtained by County. C. Construct, install, maintain, and pay for the cost of, a parking garage, the top of which is to serve as the structural slab. The parking garage and structural slab shall be designed and constructed to support a total superimposed design load of 760 psf, calculated as 660 psf total superimposed dead load plus 100 psf superimposed live load. Design and construction plans for the parking garage may be modified as agreed upon by the Parties. D. Pay for, inspect and provide a certification as to the installation of any lightweight fill or geofoam installed by the County to facilitate the use of the Park easement and the Park design pursuant to subsection 3(C)(i). In the event that the lightweight fill or geofoam is relocated, repurposed, or otherwise modified in connection with a future redesign of the Park, APAH shall inspect and provide a certification as to the reinstallation or modification of the lightweight fill or geofoam. E. Install fence, gate, wall or other landscape enclosure necessary (beyond any fencing installed by County around the Park perimeter) to maintain the security and safety of building residents and to distinguish private from public open spaces. 2 P a g e

5 F. Install, repair and maintain all equipment such as lights and boxes required for the minimum required level of emergency pathway illumination. All such equipment shall be run from APAH s meter(s). G. Allow, at no cost to the County, County access and use of one (1) APAH water spigot for the County s intermittent and reasonable maintenance needs; provided, however, that the County shall not use such spigot for irrigation of or water features within the Park or associated landscaping. 3. County Responsibilities A. Provide for all Park costs exclusive of the $125,000 APAH contribution and APAH s costs for the performance of their responsibilities set forth in Section 2, above. B. Apply for and complete approval of Park use permit. C. Within six (6) months of APAH completing the construction of the garage and providing the County with the construction easement provided for herein, the County will either initiate construction of the Park and diligently pursue such construction toward completion or have completed the Interim Condition as described below (such improvements being referred to as the Interim Condition ): i. At a minimum, such Interim Condition installed by the County shall include Park area to be screened/fenced, filled to grade, including installation of such lightweight fill or geofoam as may be necessary and suitable to accommodate the use of the Park Easement and Park design, seeded/sodded, and containing a stormwater treatment system equivalent to SWM measures included in the final Park design. ii. Such Interim Condition shall be subject to the approval of APAH, which approval shall not be unreasonably withheld, conditioned or delayed. D. Undertake the following responsibilities, and coordinate, communicate and share information with APAH on a regular basis regarding Park design, funding and construction, including, but not limited to: i. Provide for a Park design sensitive to stormwater issues, incorporating, when practicable, pervious surfaces and permeable pavers. ii. In the event DPR desires to include electricity or water features in the Park, exclusive of the minimum required level of emergency pathway illumination and County access to the APAH spigot referenced above, the County will provide for separate meters for electrical or water needs of the Park. iii. Provide for minimum/maximum luminance for lighting of the Park, with input from APAH. iv. Exclusive of the County access to the APAH spigot, provide for separate meter for irrigation/water resource needs of Park. 3 P a g e

6 v. Design landscaping so that soil depth is consistent with information provided by APAH and agreed upon by both Parties. E. Provide an easement to APAH to access the slab for repairs or maintenance, with APAH to restore the Park to its condition prior to completion of such repairs or maintenance. However, where the need for such repairs/maintenance was solely caused by any action or failure to act by the County, such restoration will be at the expense of the County. F. Prior to completion of the building envelope, provide estimated timing of Park construction based on budget. G. Provide information about Park funding in the County s Capital Improvement Plan and associated bond actions. H. Construction of street and Park-serving utilities along park frontage. I. Own, maintain and operate all elements within the Park, per current County policies, standards and practices, including, but not limited to: i. Own and maintain all equipment, materials, etc. within the Park. ii. Clear and maintain sidewalks fronting the Park. iii. Provide regulation of the Park in accordance with Arlington County Park Rules and Regulations. iv. Maintain the Park in accordance with the areas of responsibility depicted on exhibits A and B attached hereto. J. Cover costs of stormwater design for Park only, as well as interim permanent stormwater solution for the Park. K. Reimburse APAH for any damage to the building, slab, or property caused by County construction or maintenance of the Park. 4. Remedies In the enforcement of this MOA, the Parties shall have available all remedies at law or in equity. 5. Compliance and Termination A. At the County s sole discretion, APAH s failure to comply with the terms of this MOA or with any federal, state or local law or regulation may also be cause for termination of this MOA. Termination shall be effective forty-five (45) days after the County 4 P a g e

7 notifies APAH in writing of the non-compliance, unless the County reasonably determines that APAH has cured the non-compliance within the forty-five (45) day period, or, if such non-compliance is not capable of being cured within forty-five (45) days, that APAH has commenced such cure within forty-five (45) days and pursues such cure diligently to completion. B. The County also may terminate the MOA, in whole or in part in the event that the County Board elects not to fund the Park or other obligations of the County set forth in this MOA. In such event, the County shall, at its sole expense, place the Park in the Termination Condition prior to the termination of this MOA. C. Notwithstanding the termination provisions in 5(a) and 5(b) above, no termination of this MOA shall: i. Entitle APAH to any reimbursement of its $125,000 contribution of funds to the County. 6. Self Help If any issue related to the Park constitutes an emergency or presents an immediate threat to human life or damage to the building on the APAH Property, APAH shall have the right (but not the obligation) to cure such issue. In the event such action is undertaken, and such action is required due solely to the County s negligence, use, construction, operation, or maintenance of the Park, or any associated action or failure to act, the County will reimburse APAH for the reasonable costs of such action. However, should such action be conducted for any other reason other than that described in the preceding sentence, APAH shall restore the ground to its condition prior to completion of such repairs or maintenance. 7. Indemnification APAH and its successors in title and interest and assigns hereby agree to indemnify and hold harmless the County and its elected and appointed officials, officers, employees, contractors, and agents from any liability, personal injury, death, claims, damages, losses, costs, and expenses of whatever nature concerning or arising out of or in connection with APAH s or its agents or invitees acts or omissions related to the Park, except to the extent that such liability, claims, damages, costs, and expenses arise, directly or indirectly, as a result of acts or omissions of the County or the negligence of any party other than APAH or its agents or invitees. This indemnification shall be construed to include all liability, personal injury, death, claims, damages, losses, costs, and expenses relating to the parking garage, structural slab, or lightweight fill or geofoam installed by the County, except to the extent that any such liability, personal injury, death, claims, damages, losses, costs, and expenses arise, directly or indirectly, as a result of the acts or omissions of the County or the negligence of any party other than the APAH, its agents or invitees, including any actions taken by the County which are inconsistent with or otherwise exceed the superimposed design load stated in section 2(C). 5 P a g e

8 8. Insurance Requirements APAH must provide proof of: i) commercial general liability insurance coverage of no less than $1,000,000 per incident/$2,000,000 aggregate for APAH, including Personal Injury and Contractual Liability, ii) Builder s Risk Insurance with a limit equal to the value of the garage structure until final payment for its construction has been made, The above-mentioned coverages should include Arlington County (including its elected and appointment officials, agents and employees) as an additional insured. Coverage afforded under this policy shall be primary to all other insurance with respect to Arlington County but only for claims made in connection with APAH s or its agents or invitees acts or omissions in performance or nonperformance of its obligations under this MOA. 9. Virginia Freedom of Information Act APAH understands and agrees that the County is subject to the terms and provisions of Code of Virginia et. seq., the Virginia Freedom of Information Act ( VFOIA ). All public records in the County s custody, possession or control shall be open to the public for inspection and copying to the extent that such disclosure is required by law. 10. Non-Discrimination APAH shall not discriminate against or exclude any individual from participation for reasons of race, color, creed, national origin, sexual orientation, disability, or any other characteristic that is protected by local, state or federal law. 11. Notices Formal notices and communications among the Parties shall be given either by (i) personal service, (ii) delivery by a reputable document delivery service that provides a receipt showing date and time of delivery, (iii) mailing utilizing a certified or first class mail postage prepaid service of the United States Postal Service that provides a receipt showing date and time of delivery or (iv) delivery by facsimile or electronic mail ( ) with transmittal confirmation and confirmation of delivery, addressed to: 12. Additional Terms A. Entire Agreement; Amendments. This MOA constitutes the entire agreement among the Parties hereto and may not be amended or modified, except in writing, signed by each of the Parties hereto. This MOA shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns. A Party may not assign its rights and obligations under this MOA without the prior written consent of the other Party; provided, however, that such consent shall not be required 6 Page

9 to assign the rights and obligations of this MOA to any future owner of the APAH Property. B. Governing Law; Venue. This MOA is made, and is intended to be performed, in the Commonwealth and shall be construed and enforced by the laws of the Commonwealth. C. Counterparts. This MOA may be executed in one or more counterparts, each of which shall be an original, and all of which together shall be one and the same instrument. D. Severability. If any term, provision, covenant, or condition of this MOA is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this MOA shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this MOA. In the event that all or any portion of this MOA is found to be unenforceable, this MOA or that portion which is found to be unenforceable shall be deemed to be a statement of intention by the Parties; and the Parties further agree that in such event, and to the maximum extent permitted by law, they shall take all steps necessary to comply with such procedures or requirements as may be necessary in order to make valid this MOA or that portion which is found to be unenforceable. E. Relationship of Parties. The provisions of this MOA are intended solely for the purpose of defining the relative rights of the Parties and no relationship of partnership, joint venture, or other joint enterprise shall be deemed to be created hereby by and among the Parties pursuant to this MOA. F. Interpretation. The terms of this MOA shall be construed in accordance with the meaning of the language used and shall not be construed for or against any Party by reason of the authorship of this MOA or any other rule of construction which might otherwise apply. The Section headings are for purposes of convenience only, and shall not be construed to limit or extend the meaning of this MOA. G. No Waiver of Sovereign Immunity. Notwithstanding any other provisions of this MOA to the contrary, nothing in this MOA nor any action taken by either Party pursuant to this MOA nor any document which arises out of this MOA shall constitute or be construed as a waiver of either the sovereign immunity or governmental immunity of either Party or their appointed officials, officers and employees. H. Attorney s Fees. Attorney s fees shall be paid by the Party incurring such fees. [SIGNATURES ON FOLLOWING PAGES] IN WITNESS WHEREOF, DPR and APAH have each executed, or caused to be duly executed, this MOA in duplicate, in the name and behalf of each of them (acting individually or 7 P a g e

12 DPR By: [SEAL] Mark Schwartz County Manager Arlington County Government Its: Date: COUNTY OF, to wit: COMMONWEALTH OF VIRGINIA I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify that as of, whose name is signed to the foregoing instrument appeared before me and personally acknowledged the same in my jurisdiction aforesaid. GIVEN under my hand and seal this day of, 20. My commission expires: Notary Registration Number: Notary Public 10 P a g e

13 EXHIBIT A: Public Park Premises 11 P a g e

14 EXHIBIT B: : Vertical Delineation of Construction and Maintenance Responsibilities* 12 P a g e

UTILITY EASEMENT AGREEMENT

THIS INSTRUMENT PREPARED BY AND RETURN TO: Roy K. Payne, Esq. Chief Assistant City Attorney 400 S. Orange Avenue Orlando, FL 32801 Roy.Payne@CityofOrlando.Net UTILITY EASEMENT AGREEMENT THIS UTILITY EASEMENT