CR 2014-082; Hennepin County Challenge Fund Grant Agreement Amendment (8th Ave Corridor Project).4m
August 4, 2014 CAA A`flopkinA Council Report 2014-082
Hennepin County Challenge Fund Grant Agreement Amendment
Pronosed Action
Staff recommends adoption of the following motion: Move to approve the First
Amendment to Corridors of Opportunity Challenge Fund Redevelopment Agreement for
8t Avenue Corridor Project.
Overview
In 2012 the City received a $400,000 grant from the Hennepin County Corridors of
Opportunity Challenge Fund towards the acquisition of the former Snyder Drug Store
property. At the time the City's proposal was to purchase the Snyder property, combine
it with the City's adjacent municipal surface lot and construct a 200 stall parking ramp to
meet growing parking demand in the City's downtown. While acquisition dollars for the
property were secured, the City has not been able to find funding to construct the ramp.
In addition the City has not been able to negotiate a purchase agreement with the
property owner. Without a purchase agreement in place the deadline to use the funds
will expire in June of 2015.
In light of the lack of progress on the Snyder property and growing attention on the 8th
Avenue corridor south of Mainstreet the City requested that the County allow a transfer
of the $400,000 grant funds. The County responded by approving the attached grant
agreement amendment which provides for a broader use of the funds towards
streetscape improvements related to the construction of the Artery or property
acquisition for redevelopment or a municipal parking facility along 8th Avenue between
Excelsior Boulevard and First Street North. The County outlines perimeters for the use
of the grant dollars in the amended agreement and retains the authority of final
approval, but otherwise has given the City broad discretion over the use of the funds.
It should be noted that the original expiration of the grant, June 1, 2015, remains in the
amended grant agreement language. This will need to be extended, which will require a
second amendment in the coming months. The County is aware of this and has agreed
to a second amendment to extend the deadline to use the funds.
Supporting Information
• First Amendment to Corridors of Opportunity Challenge Fund Redevelopment
Agreement for 8th Avenue Corridor Project
• Corridors of Opportunity Challenge Fund Redevelopment Agreement for 8th
Avenue Corridor Project
Council Report 2014-082
Page 2
Meg Beekman
Community Development Coordinator
Financial Impact: $ Budgeted: Y/N _ Source:
Related Documents (CIP, ERP, etc.):
Notes:
Alternatives
The Council has the following alternatives:
Approve the Amendment
Approve the Amendment with changes
Deny the Amendment and opt to allow the grant to expire
Hennepin County Contract No. A120657
CORRIDORS OF OPPORTUNITY CHALLENGE FUND
REDEVELOPMENT AGREEMENT FOR
Stn AVENUE CORRIDOR PROJECT
This Agreement is dated . � - 9 , 2013 and is between the County of
Hennepin, State of Minnesota ("COUNTY"), A-2300 Government Center, Minneapolis, MN
55487, Hennepin County Housing and Redevelopment Authority, ("HCHRA"), 701 Fourth
Avenue South, Suite 400, Minneapolis, MN 55415, and the City of Hopkins, a Minnesota
municipal corporation ("CITY"), 1010 1" Street South, Hopkins, Minnesota, 55343.
WHEREAS, by Resolution No. 2008-042, CITY approved a redevelopment plan for the
Project area ("Plan"); and
WHEREAS, on April 3, 2012, CITY submitted an application ("Application") to the
HCHRA Corridors of Opportunity Challenge Fund ("Challenge Fund") Program for monetary
assistance in completion of the 8t Avenue Corridor Project (the "Project"); consisting of
property acquisition and site clearance for future construction of a public parking facility to
support redevelopment of downtown Hopkins and transit -oriented development of the Stn
Avenue South corridor between downtown Hopkins and transit service on Excelsior Boulevard
and the existing regional bike and pedestrian trail south of Excelsior Boulevard; and
WHEREAS, when used in this Agreement, the word "Project" shall mean and refer to
completion of the Eligible Activities described in Attachment A, completion of the STREET
IMPROVEMENTS defined in Paragraph 5a. and construction of the PARKING FACILITY
defined in Paragraph 5b., collectively.
WHEREAS, the Project fits within the goals of a multijurisdictional reinvestment
program authorized under Minnesota Statutes §383B.79 ("Program"); and
WHEREAS, the HCHRA has the authority to participate in the Project pursuant to
Minnesota Statutes §§383B.79 and 469.001 to 469.047 and other applicable law; and
WHEREAS, the COUNTY has the authority to contribute to the Project pursuant to
Minnesota Statutes §§383B.79 and 469.041 and other applicable law; and
WHEREAS, by Resolution No. 12-HCHRA-0014S 1 the HCHRA authorized an award of
$400,000 to CITY (the "Grant") for the Project; and
WHEREAS, the COUNTY has included the Project in its capital improvement plan; and
WHEREAS, the parties are authorized to enter into this agreement pursuant to Minnesota
Statutes §§383B.79 and other applicable law; and
Hopeivil\RedevelopmentAgreementHennCtyCorridors.7.9.13
WHEREAS, the HCHRA wishes to contract with the CITY for completion of eligible
activities ("Eligible Activities"), more fully described in Attachment A.
The Parties agree as follows:
1. Term and Amount of the Agreement. The CITY acknowledges, in order to be eligible for
payment of the Grant, the Eligible Activities for the Project must be completed by June
30, 2014. The COUNTY agrees to contribute, through the HCHRA, an amount not to
exceed $400,000 to CITY for payment or reimbursement of the Eligible Activities.
CITY qualifies for payment for only those Eligible Activities commenced after the date
in the first paragraph of this Agreement.
2. Use of Funds. CITY shall use all'funds received under this Agreement for completion of
the Eligible Activities in accordance with the Application submitted by CITY to the
HCHRA. CITY shall be solely responsible for securing all additional funds needed for
completion of the Eligible Activities and the Project.
3. Pam. Payment shall be made directly to the CITY or CITY's escrow agent upon the
presentation of a claim in the manner provided by law governing the COUNTY's
payment of claims and/or invoices. CITY shall submit timely invoices or proof of
payment for construction related expenses on a form which may be furnished by the
COUNTY or HCHRA. Proof of payment shall include copies of checks and lien waivers.
Payment shall be made within forty-five (45) days from receipt of the invoice.
4. Independent Contractor. CITY 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 co-partners between the parties or as constituting CITY as
the agent, representative, or employee of the COUNTY or HCHRA for any purpose.
CITY is and shall remain an independent contractor for all services performed under this
Agreement. CITY shall secure at its own expense all personnel required in performing
services under this Agreement. Any personnel of CITY or other persons while engaged
in the performance of any work or services required by CITY will have no contractual
relationship with the COUNTY or HCHRA, and will not be considered employees of the
COUNTY or HCHRA. The COUNTY or 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
CITY, its officers, agents, contractors, or employees. CITY shall defend, indemnify, and
hold harmless the COUNTY and 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 COUNTY or 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.
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5. Award Conditions.
a. CITY has represented that it will complete improvements to the 8th Avenue
streetscape between Mainstreet and Excelsior Boulevard ("STREET
IMPROVEMENTS") utilizing transit -oriented development and Complete Streets
principles by December 31, 2018. CITY has represented that it has committed
$26,900 in CITY funds toward design and engineering of the STREET
IMPROVEMENTS. CITY has represented that it has received a commitment of
$125,000 from the Metropolitan Council for design and engineering of the
STREET IMPROVEMENTS. CITY must provide a project budget for design,
engineering, and construction of the STREET IMPROVEMENTS showing all
proposed sources and uses, documentation of funding commitments, including
any and all expenditures, prior to requesting payment of HCHRA funds. The City
will be in default if it fails to complete the STEET IMPROVEMENTS by
December 31, 2018 and will be subject to the termination provision in Section 9.e
of this Agreement.
b. CITY has represented that it will construct, own, and maintain shared public
parking consisting of a minimum of 200 parking stalls ("PARKING FACILITY")
on the property acquired with Grant funds. CITY may elect to operate the
PARKING FACILITY on an hourly fee basis, leased basis, or free -of -charge to
customers, but at no time will more than 25% of the parking stalls be leased to a
single entity. CITY has represented that it will complete the PARKING
FACILITY on the subject property by December 31, 2018. CITY must provide a
project budget for design, engineering, and construction of the PARKING
FACILITY showing all proposed sources and uses, documentation of funding
commitments, including any and all expenditures, prior to requesting payment of
HCHRA funds. The City will be in default if it fails to complete the PARKING
FACILITY by said deadline and will be subject to the termination provision in
Section 9.e of this Agreement.
6. Data Practices. CITY, 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 and implementing regulations, if applicable, and all other applicable
state and federal laws, rules, regulations and orders relating to data privacy or
confidentiality. If CITY creates, collects, receives, stores, uses, maintains or
disseminates data because it performs functions of the COUNTY or HCHRA pursuant to
this Agreement, then CITY 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.
CITY agrees to defend, indemnify and hold harmless the COUNTY, HCHRA, their
officials, officers, agents, employees, and volunteers from any claims resulting from
CITY 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. CITY agrees to promptly notify the
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COUNTY or 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.
7. Records — Availability/Access. Subject to the requirements of Minnesota Statutes,
Section 16C.05, Subd. 5, CITY agrees that the COUNTY, HCHRA, the State Auditor,
the Legislative 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
CITY and involve transactions relating to this Agreement. CITY shall maintain these
materials and allow access during the period of the Agreement and for six (6) years after
its termination or cancellation.
8. 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 attached are incorporated and made part of this Agreement. If there
is a conflict between the terms of the 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.
9. Termination of Agreement.
a. If CITY fails to perform any of the provisions of this Agreement, it shall be in
default. Unless CITY's default is excused by the COUNTY or HCHRA, the
COUNTY or HCHRA may, upon CITY failure to cure the default within sixty
(60) days after written notice to CITY, immediately cancel this Agreement in its
entirety. In the event of such cancellation, CITY shall be entitled to payment or
reimbursement of costs for Eligible Activities completed up to the effective date
of such cancellation, including costs unconditionally incurred, but not expended
prior to such cancellation. Additionally, failure to comply with the terms of this
Agreement shall be just cause for the COUNTY or HCHRA to delay payment
until the CITY's compliance. In the event of a decision to withhold payment, the
COUNTY or HCHRA shall furnish prior written notice to CITY.
b. If the CITY materially changes the STREET IMPROVEMENTS or PARKING
FACILITY from those described in paragraph 5 of this Agreement without the
prior written approval of HCHRA, the. CITY shall be in default. CITY must
immediately notify the HCHRA in writing of any material change. Unless
CITY's default is excused by the COUNTY or HCHRA, the COUNTY or
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HCHRA may, upon CITY failure to cure the default within sixty (60) days after
written notice to the CITY, immediately cancel this Agreement in its entirety and
the COUNTY or HCHRA at its option, after sixty (60) days prior written notice to
CITY, may declare any payments made to the CITY to be due and payable in full.
C. The COUNTY or HCHRA's failure 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.
d. This Agreement may be canceled with or without cause by the COUNTY,
HCHRA upon thirty (30) days' written notice. In the event of cancellation, CITY
shall be entitled to payment or reimbursement of costs for Eligible Activities
satisfactorily performed up to the effective date of such cancellation, including
costs unconditionally incurred but not expended prior to such cancellation.
e. If construction of the STREET IMPROVEMENTS or PARKING FACILITY
under this Agreement have not been substantially completed by December 31,
2018, the COUNTY or HCHRA at its option, after one hundred eighty (180) days
prior written notice to CITY and failure by the City to substantially complete the
STREET IMPROVEMENTS or PARKING FACILITY, may declare any
payments made to the CITY to be due and payable in full.
10. Contract Administration. In order to coordinate the services of CITY with the activities
of the HCHRA so as to accomplish the purposes of this Agreement, Patricia Fitzgerald,
her successor or assigns, shall manage this Agreement on behalf of the HCHRA and
serve as liaison between the HCHRA and CITY.
11. Notices. Any notice or demand which must be given or made by a party under this
Agreement or any statute or ordinance shall be in writing, and shall be sent registered or
certified mail. � Notice to the COUNTY shall be sent to the County Administrator at the
address given in the opening paragraph of the Agreement. Notice to the HCHRA shall be
sent to the Deputy Executive Director at the address stated in the opening paragraph of
the Agreement. Notice to CITY shall be sent to the address stated in the opening
paragraph of the Agreement to the attention of the Director of Planning and Economic
Development.
12. Reporting. CITY must provide an Annual Report, Attachment B, submitted
electronically by July 1 of each year throughout the contract term, and also a Final Report
at completion of the Project. Attachment B has been provided to CITY electronically as
part of this Agreement.
13. Displacement, Relocation, and Acquisition. CITY shall take all reasonable steps to
minimize displacement of persons as necessary for implementation of the Activities.
CITY shall conduct all such acquisitions in its name, or in the name of another eligible
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organization acceptable to the COUNTY and HCHRA, which shall hold title to all real
property purchased. CITY shall prepare all notices, appraisals, and documentation
required in conducting acquisition under the latest applicable regulations of the Uniform
Relocation Assistance and Real Property Acquisition Act of 1970, Section 104(d) of the
Housing and Community Development Act of 1992, and provide all relocation notices,
counseling, and services.
14. Recognition of Hennepin County. In recognition of HCHRA funding support, CITY
agrees to include the Hennepin County logo on project site signage and project website.
15. Assurances that Conditions of Agreement will be Met. At the time of closing on
acquisition of the property described in Attachment A ("Property"), CITY shall execute a
Promissory Note (the "Note") in the amount of the funds granted by the HCHRA to the
CITY. No interest shall be payable on the principal amount of the Note. The Note shall
be secured by a mortgage and a declaration recorded against the Property. The forms of
the note, mortgages and declaration are, collectively, the "Loan Securing Documents."
To the extent that such declaration is ruled or construed to be unenforceable for any
reason by any court or arbitrator, CITY must provide substitute security to the HCHRA
to equivalent effect and in equivalent amount.
CITY further agrees and consents to the filing of the Loan Securing Documents with the
government officials or entities as determined by the HCHRA to be appropriate to protect
the interest of the HCHRA in the Property.
16.. Release of Note and Mortgage. The HCHRA shall release the Note and Mortgage upon
completion of the Project including documentation to the HCHRA's satisfaction that all
conditions listed in Section 5 have been or will be met.
17. Proof of Property Insurance. CITY shall furnish, within a reasonable time prior to
closing on the Property, proof of property insurance as follows: fire and extended
coverage insurance with vandalism and malicious mischief and an agreed amount rider
and in amounts of not less than the amount of the Grant, public liability and property
damage insurance in acceptable limits of coverage, flood insurance, if the premises are in
a flood plain, and/or such other forms of insurance that HCHRA may reasonably require.
All insurance shall be issued by a company and with coverage acceptable to HCHRA,
and endorsed with a standard mortgagee's clause acceptable to HCHRA.
18. Hazardous Waste. The CITY has inspected the Property and has disclosed to HCHRA
the existence of hazardous substances, hazardous wastes, pollutants, asbestos or
contaminants (as those terms are defined under any Federal, State of Minnesota, or local
statute, ordinance, code, or regulation) on the Property as disclosed in the Phase I
Environmental Assessment and Hazardous Materials Survey obtained by the CITY. The
CITY warrants that it will not allow any other person to deposit, store, dispose of, place,
or otherwise locate or allow to be located on or within the Property, any of the above
referenced hazardous substances, except such hazardous substances as are ordinary and
necessary for the construction or operation of the Property and the PARKING
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FACILITY, provided that such use is in accordance with all applicable laws, and that in
the event any such hazardous substances are found on or within the Property, the CITY
will indemnify the HCHRA as provided in Section 21a. herein.
19. Inspection. The Grant shall be subject to satisfactory inspection of the Property by an
authorized representative of HCHRA. After the award closing, CITY and occupant(s) of
the premises shall permit HCHRA's representative to make periodic inspections.
20. Expenses., CITY shall be responsible for any expenses it incurs in complying with the
terms of the award, including any costs for filing or recording award documents with the
appropriate officials and government offices.
21. Indemnification.
a. The CITY agrees to defend, indemnify, and hold harmless the HCHRA and
COUNTY, their elected officials, officers, agents, and employees (including duly
authorized volunteers) from any liability, claims, causes of action, judgments,
damages, losses, costs, or expenses, including reasonable attorney's fees, resulting
directly or indirectly from any negligent act or omission or willful misconduct of
the CITY, its officers, managers, agents, employees (including duly authorized
volunteers), or contractors and/or anyone for whose act, omission, they may be
liable in the performance of the Activities required by this Agreement, and against
all loss by reason of the failure of said CITY to perform fully, in any respect, all
obligations under this Agreement.
b. The CITY agrees to defend, indemnify, and hold harmless the HCHRA and
COUNTY, their officials, officers, agents, and employees (including duly authorized
volunteers) from any liability, claims, causes of action, judgments, damages, losses,
costs, or expenses, including reasonable attorney's fees, resulting directly or
indirectly from any negligent act or omission or willful misconduct of CITY
officers, managers, agents, employees (including duly authorized volunteers), or
contractors, and/or anyone for whose act, omission, they may be liable in connection
with the Project.
22. Insurance.
In order to protect the CITY and the HCHRA under the above indemnification
provisions, CITY agrees to keep in force or cause its contractors to keep in force at all
applicable times during the term of this Agreement and beyond such term when so
requested by the HCHRA the following insurance coverages:
a. During the performance of construction activities for the PARKING FACILITY,
Builders Risk Completed Value nonreporting form of fire, extended coverage
vandalism and malicious mischief hazard insurance covering the replacement value
of the Premises.
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b. Commercial General Liability on an occurrence basis with contractual liability
coverage:
Limits
General Aggregate $2,000,000
Products Completed Operations Aggregate $1,000,000
Personal and Advertising Injury $1,000,000
Each Occurrence — Combined Bodily Injury
and Property Damage $1,000,000
Worker's compensation and Employer's Liability:
Limits
(1) Workers' Compensation Statutory
(2) Employer's Liability. Bodily injury by:
Accident - Each Accident
$100,000
Disease - Policy Limit
$500,000
Disease - Each Employee
$100,000
23. Pre -Disbursal Documentation. Prior to disbursal of any of the Grant, CITY must provide
the HCHRA the following documentation:
a. Copy of a valid and fully executed purchase agreement or deed for the Premises.
b. Copy of the Property appraisal prepared by a certified appraiser and showing the
fair market value of the Property.
C. Documentation demonstrating that all financing has been approved and secured
for the total property acquisition costs.
d. Insurance Policy or Binder evidencing the procurement of the procurement of the
insurance required pursuant to Sections 17 and 22.
e. One copy of a recent survey of the Land prepared by a registered land surveyor
dated within 120 days of the Date of Closing describing and showing the Land
and the location of the Improvements thereon, disclosing easements (both
appurtenant and encumbrances upon the Land, giving appropriate ownership and
recording data), encroachments, if any, and disclosing all unsatisfactory survey
conditions, if any (the "Survey"). The Survey shall bear a proper surveyor's
certificate, including the legal description of the Land, the legal description of all
easements both appurtenant and encumbrances and shall state that the survey and
certificate run to the benefit of the HCHRA and the title company. The Survey
shall specifically show the following matters to the extent possible at the time of
the Survey:
(i) dimensions and total square footage area of the Land surveyed with
acreage designation to three decimal points; and
(ii) the location and names of adjoining public roads and streets.
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f. Copies of any environmental audits and reports that identify the existence or
potential existence of any asbestos, urea -formaldehyde insulation or other toxic or
hazardous substances on, about or beneath the surface of the Property.
g. Title commitment for loan policy in favor of "Hennepin County Housing and
Redevelopment Authority" a public body corporate and politic under the laws of
the "State of Minnesota" in the amount of the Loan.
h. Mechanic's lien waivers for any work initiated or completed on Property within
the previous one hundred twenty (120) days.
i. Documentation that all real estate taxes currently due and payable are paid and the
Premises is not subject to any pending assessments.
The Loan Securing Documents, described in Section 15 of this Agreement.
k. Copies of any other documentation required by the terms of this Agreement to be
provided at closing.
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Reviewed by the County
Attorney's Office
B
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Date: :g/� 7 6 ;3
COUNTY BOARD AUTHORIZATION
COUNTY OF HENNEPIN
STATE OF MINNESOTA
IMs
Chair of Its
Recommended for Approval
By:&L,,� g -P �- c -%- 12
Department Director, Housing, Community
Works and Transit
HENNEPIN COUNTY HOUSING AND
REDEVELOPMENT AUTHORITY
By: —�
Chair of Its B
M
By: -116-,
Deputy
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th„County Board
ve Director
CITY OF HOPKINS
By:
Its:
And
Its:
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CORRIDORS OF OPPORTUNITY CHALLENGE FUND
REDEVELOPMENT AGREEMENT FOR
81h AVENUE CORRIDOR PROJECT
ATTACHMENT A
Eligible Activities
Property acquisition and acquisition -related expenses (closing and other related costs only with prior
writtenpermission of HCHRA); demolition, and site clearance of 15 9th Avenue North, Hopkins,
Minnesota, known as the fonner Snyder Drug site.
Total $400,000
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