CR 2004-104 Metropolitan Council Livable Communites Act Tax Base
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June 23, 2004 HOPKINS i c;ouncil Report 2004-104
. ,'METROPOLlTANCOUNCIL LIVABLECOMIVIUNITIES ACT TAX BASE
, REVITALIZATION ACCOUNTAGREEMENT - THE LUTHER COMPANY
Proposed Action
Staff recommends ado;ption of th~ f()lIowing motion: ,Move to approve the Livable
. COrhmunities Act Tax Base Revitalization Account agreement between the City of '
Hopkins and Metropolitan Council and authorize its execution, subiecttothe approval,
and execution ofa sub~recipient aqreementbetween the, City of Hopkins and The'
Luther Company. ' ,. "
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With this motion thla contract will ,be executed and forwarded to MetropolitanCbunCiI Jor
their execution.
Overview ,i
At the request of The Luther Company, the ,City of Hopkins applied for ana, received a
grant award of $452,978 through the Metropolitan Council Tax Base Rlavitalization
Account. The grant funds will be used for cleanup of contaminated soil at the former
, Knox ,Lumber site, located at 250 Fifth AvenuE3 South. The c1ean':'up will allow for the
site to be,redeveloped into the newlocation,of Hopkins Honda.
. ,.The grant agreenlentdetailsaccounting and record keepingrequirernents,
disbursement procedures, reporting and other miscellaneous items. " Asa condition of
, receiving the graht funds, staff is recommending The Luther Company be required to '
execute a sub~recipientagreementwhic:hobligates The LutherCompany to fulfill all the
obligations of the grant agreement.
Primary Issues to Consider
The major obligations of the grant agreement will be passed on to The Luther Company.
They will also be required to indemnify the City of Hopkins of all liability and reimburse
the City of all out~of-pocket expenslas incurred.
S u pportin~flnformation
. Metropolitan Council Livable Communities Act Tax Base Revitalization Account
Agreement
. Su b~recipient ,Agreement
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. Financial Impact: $ 0 Budgeted: Y/N Source:
Related Documents (CIP, ERP, etc.): -
Notes: '
,. GrantNo. SG2003-132
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. METROPOLITAN LIVABLE COMMUNITffiS ACT
TAX BASE REVITALIZATION ACCOUNT
, . GRANT AGREEMENT
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THIS GRANT AGREEMENT: is made and entered into by the Metropolitan Council ("Council';,)
arid the City of Hopkins ("Grantee").
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WHEREAS, Minnesota Statutes section 473.251 crea~estheMetrbpo1itan Livable Communities
Fund, the uses of which fund must be consistent with andpromot~ the purposes oftheMetropolitan
Livable Communities Act, and thepolicie~' of the Metropolitan Development Guide 'adopted by the
Council; and' " " ,
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'WHEREAS, Minnesota Statutes sections 473.251 ,andA73.252establis.h.,withiJ1theMetropQ1itah "
Livable Communities Fund a Tax Base Revitalization Ap~untatldrequirethe Council to use the
funds in' the, account to : make grants to, municipalities or development authorities for, the cleanup of, '
polluted land in the seven-county metropolitan area; and ' ' ",
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WHEREAS, the"Gtantee is a "municipality" as,defined" i~ Minnesota Statutes section 473.252,
subdivision 1 or a "development authority" as defined in Minnesota Statutes 'section473.252,
subdivision 1 a and submitted an application for Tax Base Revitalization Accounffunds in response
.' to the 'Council' s notice of availability of grant funds for the Fall 2003 grant cycle; and
WHEREAS, at its December 17, 2003 ',' regular meeting, the Council awarded Tax Base
Revitalization Account grant fundsfo certain municipalities or development authorities which
. submitted grant applications to the Council during the Fall 2003 grant cycle, including the Grantee. .
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, ',NOW THEREFORE, in consideration of the mutual promises and covenants contained in this
agreement, the Grantee and the Council agree as follows:
1. DEFINITIONS
1.01 DermitionofTerms. For the purposes ofthis agreement, thete:rmsdefined in this paragraph
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have. the meanings given them in"this paragraph unless otherwis~ provided or. indicated by,.the
context.
(a) "Cleanup Costs" or "Costs"mean:
(1) for hazardous waste, or substance contamination, the cost of implementing, a Voluntary
" Response Action Plan approved by the Minnesota Pollution Control Agency under
Minnesota Statutes section 115B.175, subdivision 3; or
. (2) for asbestos contamination, the cost ofimplemenrlnganAsbestos Abatement Plan for the
, Site which is carned out by contractors or subcontractors licen~ed or certified by the
" Co111D1issionerof Health under the Minnesota Asbestos Abatement Act, Minnesota
Statutes sections 326.70 to 326.81, in accordance with rules prescribed by the
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. Commissioner of Health related t() asbestos abatement and asbestos management activity,
,and meeting the' federal Asbestos Hazard. Emergency Response Act ("AHERA")
. ' stand,ards for asbestos; or ' .
(3) for petroleum contcimimition, the' cost of implementing a COrrective Action Plan for the
Site approved by the Minnesota Pollution Control Agency under Minnesota Statutes,
" chapter 115C; " .
(b) "Development Authority" means ,a' statutory or home rule " charter city, housing and
.redevelopnient....authority; e9onomic' development ,authority, or:aportauthority, in the
Metropolitan Area. ,.' ,,' " , .,,'
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(c) "Metropolitan Area" means the seven-county metropolitan area as defined by Minnesota "
Statutes section 473.121, subdivision 2; , ' .'., " '
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Cd) "Municipality" means a statutory or home.rule charter city.or towp- participating in the Local
, Housing' Incentives Program under Minnesota Statutes' section. 473.254, . or a county in the ·
MetropolitariArea. i "', .,'..' .' " '.' '... '
(e) "Participati~gMunicipality" means' a statutory o~ home'luIe charter citY or t~wn which has <
.eleetedto ..participate ill. the,. LocaL Housing mcentive Account program. arid negotiated
affordable and: life-cycle housing >goals for the Municipality pursuant to Minnesota Statutes '
section 473.254. . '. .. ,..'.
. (f) "ProjectCosis"mean8al1cosisa.sdefi1,1edjnMinn~sotaStatutes section 116J.552,subdivisio~ 7.
(g) t~Site" means the landpioposedbythe Grantee' to he cleaned up ari.d located both within the
Metropolitan Area and within the jurisdiction oftheGrantee~ ,
" ll. GRANT FUNDS
2.01 Total Grant Amount' The COu11cil will grant to the Granteeatotalsumof$452,978.00
which shall be funds from the Tax Base Revitalization Account.of the Metropolitan Livable
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Cominunities Fund. Notwithstanding arty other provision of this agreement, the ,Grantee understands
and agrees that .any reduction or termination of Tax Base Revitalization Account grant funds made
available to the Council may result in alike reduction to the Grantee. .... ' .
2~02 Authorized Use of Grant Funds. The total grant amount mad.e available to the Grantee
under this agreement shall be used, only for Cleanup Costs for the cleanup of polluted land in the
Metropolitan Area as described in the Grantee's applicati.' on for Tax Base Revitalization Account
grant funds (the Site). A summary of the projectdescribedin.theGrantee's application is attached
to .and incorponited intothis agreement as Attachment A. Grant funds must be used forc1eanup of
the Site which must be located in a Participating Municipality. If consistent with its application, the
Grantee may use the grant funds to provide a portion of the local match requirement for Project .
Costs thatqualifyfor agrant under Minriesota Statutes ~ections 116J .551 to 116J .557. The Council
. . shall bear no responsibility for cost overruns which may be incurred by the Grantee or others in the
implementation or performance of the project activities described in Attachment A~ 'The Grantee
agrees to remit to the Council in a prompt manner: any unspent grant funds; any:grant funds which
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" are not used for the authorized purposes specified in this, paragraph; and any interest earnings
. " described in,paragraph 2.04 . which are not used' for the 'purposes of implementing the project
actiVities described in Attachment A. The Grantee agrees to comply with any "business subsidy"
requirements of Minnesota Statutes sections 116J.993 to 116J.995 that apply to the 'Grantee's
expenditures or uses of the grant funds. ' , ' '",' , .
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2.03nisburseinentSchedule.~ The, CoUncil will disburse the grant funds to the Grantee in
accordance with the grant, fund '.' disbursement schedule contamed in . Attachment :8, which is
incorporated into and made a part of this agreement. The Council will make disbursements only
upon receiptofa writt~n disbursement request from the Grantee's authorized agent or
representative. The written disbursement requestmusfinc1ude a statement indicating the Grantee's
expectation to complete the cleanup and redevelopment consistent \Vith the Council's approved
project description or, if applicable, any amended project description appr!Jvedbythe Council's
authorized agent ' ,,' ' , ,
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2.04, .Interest Earnings. If the Grantee eafus any interest or other income from the grant funds
,received from the Council under this agreement, the GranteewiU us~ the interest eamingsor income
only for the purposes of implementing the project activities described in Attacb1nent A. " '
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'2.05 Effect of Grant. Issuance of this gran.t neither implies" any CoUncil responsibility for the.
contamination at the Site nor imposes any obligation on the Council toparticipa~e in the, cleanup of
the Site contamination or in the Cleanup Costs beyond the amount of this gnmt,' ,
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. III. ACCOUNTING,AUDIT ANDREPO~T REQUIREMENTS :
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3.01 Accounting and Records. ' The Grantee agrees to establish .lllld maintain' accurate and
complete aC,counts, and records relating' to the receipt and expenditure of all, grant funds received
from the Council. Notwithstanding the expiration arid terniinationprovisions ofpara:graphs 5.01
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and 5;02, such accounts and records shallbekeptalld maintained by the Grant~efor aperiodofsiX
(6) years following the completion, of the ,project activities described in Attachment A or six (6)
years following'the expenditure ,of the grant funds; whi~hever occurs earlier." For all expenditures of
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grant funds ,received pursuant to this agreement, the Grantee will keep proper financial records
including invoices, contracts, receipts, vouchers and' :other appropriate documents sufficient to
evidence in proper detail the nature and propriety of the expenditure. Accounting methods shall be
in accordance with generally accepted accounting principles.
3.02 Audits. The above accounts and records of the G~antee shall he audited in thesarne manner
" as all other accounts and records of the Grantee are audited and may be audited or .inspected on the'
Grantee~s premises or otherwise by individuals or organizations designated and authorized by the
Council at anytime, following reasonable notification to the Grantee, for a period of six (6) years
following the completion of the project activities described .in Attachment A or six. (6) years
following the expenditure ofthe grant funds, whichever occurs earlier..
3.03 Report Requirements. The Grantee will provide to the Council one or more written reports
which report on the status of theproject activities described in Attachment Aand the expenditures
of the grant fun~s. The reporting schedule and the content of the written report( s) are identified in
. Attachment C, which is incorporated into and made a part of this agreement The Grantee must
report to, the Council any significant changes in redevelopment plan~' that occur either prior to the
termination of this grant agreement or during the reporting period identified in Attachment C.
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3.04 Certification of Completion. Upon completion of Site cleanup, the Grantee will provide to
the Council:
. , (a) for hazardous waste or subst~ce cOl1tamimlHon, a copy ofaCertificate of Completion for the
Site issued by the Minn'esota Polluti6n~ontrol' Agency pursuant to Minnesota.. Statutes,
section1l5B.l75, or aletter:fromtheAgency indicating that the approved Response" Action.
. Plan for the Site has been implemented to the satisfaction of the Agency andthatthe Agency is .
issuing a detenriinationthat no. further..action,is required under', Minnesota Statutes sections
1I5B.Ol to 115B.08toaddress the Identified Release; or , ..,. .
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(b) for a~bestos contaniination,a copy. of 'a statementfroin the Grantee's licensed Asbestos
Abatenient Contractor that the Asbestos Abatement Plan for the Site has been completed in
accordance withtheniIes of the Minnesota Department of Health; or .
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(c) for petroleum contamination, a copy of a Site Closure Letter issued by UJe Minnesota Pollution
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Control ^~eJ.1cy pursuant to Minnesota Statutes chapter 115C.
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tv. RECOVERY ANDREPAYMENT
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4.01 Recovery of Fimds. If the G!antee recoversfund.s pursuant to an actlonunder Minnesota
Statutes, section 115B.04, or other law, to re~over the reasonable and necessary Project Costs
, incurred to cleanup the Site, the Grantee shall repay to the Council that portion of the grant as
., provided in paragraph 4.04. '
. 4.02 Assignment of Rights.' Upon : request of the"Council,the Grantee shall assign its right to
recover the funds described iIi, paragraph 4.01 to the Council, shall prepare and submit a
certification of the Project Costs' incurred, and, shall cooperate in. any~ost ,recovery actionbtougbt ...
by the:Council.
4.(}3 Expenses of Recovery. The reasonable litigation expenses or,othercostsofJegal or technical'
assistance incurred by the Grantee, the Council, or both, may be deducted from recovery obtained in
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accordance with paragraphs 4;01 or 4.02 and reimbursed to the entitjr;,incurring such costs before
proceeds of the recovery are distributed. in accordance with paragraph 4.04.
4.04 Reimbursement. Subject to the deduction provided in paragraph 4.03, amounts re~overed
either by the Grantee or the Council from responsible persons and all other amoUnts otherwise
received by the Grantee or the Council for cleanup of, the Site shall be'. used to reimhurse the
Grantee, the Council, or any othernonresponsible party who contributed funds for cleanup of the
Site in proportion to their respective p'ayments for response costs.
4.05 Survival of Section. The provisions of Section IV '(RECOVERY AND REPAYMENT) shall
, survive the expiration or termination of this agreement.
v. AGREEMENT TERM
. 5.01 Term. This agreement is effective upon execution of the agreement by the Council. Unless
terminated pursuant to paragraph 5.02 or extended by written request and confirination pursuant to
this paragraph, this agreement will terminate December 31,2005. Thetenn of this agreement may
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. .. be extended for a reasonable amount of time if, at least thirty (30) days prior to the termination date,
. the Grantee's. authorized agent or representative submits a written extension request which states the
. . purpose of the extension; id:ntifies .a.n.ew completion date and d~scribes in reason~ble detail any
. proposed changes to the project activities and budget. An extenSiOn shall be effective only upon
receipt of a written confirmation from the Council' sauthori~ed agent. . Upon termination of this
agreem~t, the Grantee must submit the animal written reports described.in Attachment C~
5.02 T erlnination. This agreement may b~ teOllinatedby the Council. for cause at any time upon
fourteen(i~rcalendar days' written ~otice to the Grantee. Cause shall m~ari a material breach of
this agreement, and any amendments .of this agreement,. and includes failure to .make reasonable and
timelypregress inperfoOlling and completingth~p~ojectactivities describedin.AttaclunentA. The.
Grantee shall have the right to cure any and all defaults during the fourteen-day notice period
without incurring penalty.. If this agreement is.terminated,theGrant~e shall receive payment on a.
. pro rata basis for project activities described in Attachment A that have been'completed.
Tennimitlon of this agreement does not alter the. Council's authority to recoyer grant funds on the
basis ofa later audit Or other review, and does riot alter the Grant,ee's obligation to return any grant
funds due to the Council as a result of later audits or corrections. If the Council deternlines the
Grantee has failed to comply with the terms and eonditionsof this agreement and the applicable
provisions of the MetropolitanLivableCommumties Act, the Council may take any action to protect
the Council's interests. and may refuse to disburse additional grant funds and may require the.
Grantee to return all or part of the grant .funds already disbursed, to the. extent. such grant funds were.
not used in accordance with this agreement. , .
. 5.03 Amendments. The Council and the Grantee may amend this. agreement by mutual agreement.
. Except for a terni extension pursuant to paragraph 5.01, amendments, changes or modifications of
this agreementsha1l be effective only on the execution of written amendments signed by authorized '
representatives of the Council and the Grantee; .. ',.' .
VI. GENERAL PROVISIONS .
6.01 Equal Opportunity. The Grantee agrees it will not discriminate againstany employee or
applicant for employment because of race; color, creed, religion, national origin, sex, marital status, .
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status with regard to public, assistance,' membership or activity in a local civil rights.' commission,
disability, sexual orientation or age. and take. affiOllative action to insure applicants and employees
are treated equally with respect to all aspects of employment, rates of pay and omer JoOlls of
compensation, and selection for training. .
6.02 Conflict of Interest. The members, officers and employees of the Grantee shall comply with
all applicable state. statutory and regulatory conflict of interest laws and provisions.
6.03 Liability. To the fullest extent pennittedby law, the Grantee shall defend, indemnify and
hold harmless the Council and itsmenibers, employees. and agents from and against ail claims,
damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting
from the cleanup work funded in part by this grant. Claims included inthisindemnification'include,
, without limitation, any claims asserted pursuant to the Minnesota Environmental Response and
. Liability Act (MEllA), Minnesota Statutes chapter 11 5B, the federal Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) as amended, 42
V.S.C. sections.9601 et seq., and the federal Resource Conservation and Recovery Act of 1976
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,- (RCRA) as amended, 42U.S.C. sections 6901 et seq. Thjs obligation shall not be construed to
. negate, abridge or otherwise reduce any other right. or obligation of indemnity, which otherwise
. .. w?~d e~ist betw~enthe C?Ullcil ~d!he Gr~tee.. Theprovisions of this paragraph s~all survive the
temllnatlQn of this. agreement. This mdemmfication shall n()t be.construed.as.a WaIver on the part
of either the Grantee or. the Council of ally immunities or limits on liability provided by Minnesota
Statutes chapter 466, or other applicable state orfedenillaw. . . ..
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6;04 AckDowledgments. The Grantee. shall acknowledge the financial assistance provided by the
Council in. promotional materials, press, releases,. reports an4 publications relating to' the project
activities. described in Attachment A which are fundedin wh.ole or mpart with the grant funds.' The
. atknowledgmentshould contain the following language: , '.
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FinanCing for this project was provided by the Metropolitan Council.'..'
Metropolitan Livable C6mmunitiesFund. "
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'".Until the project activities funded by this agreement are. completed,th~Grantee shall ensure the
above aClmo\yiedgnienflanguage, or, altemative.languageapproved by the Council's 'authorized '
, agellt, is included on all signs located at project or construction sites that identify project sponsors or
entities providingfinancial support fortheproject . '
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, 6.0S.Permits, Bonds and Approvals. The .Council"assumes no responsibility. for obtaining any
app1icable local, state. or federal licenses, permits, bonds, authorizations or approvals necessary to'
perform or complete th~ project activities described in Attachment A. ' ' .
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. '. 6.06 C:ontrac.t~r~ and. Subcontractors., .The Grantee shallinclu~e in anycbntrac~~r subcontract
forprojectactivltIesrelated t() the cleanup of polluted Jand appropnate contractproVlslons to ensure
. contractor and subcontractor comp1ianc~ with all applicable state and federaJ.laws.A1ong with such
provisions, the. Grantee shall require that contractors and subcontractorsperforniing work covered
by this grant comply with all applicable state and fed~al Occupational Safety arid Health: Act
regtllations,especially the . federal HazardousW aste Operations and Emergency Response standards ...
.. under title 29, Code of Federal Regulations, sectionsI910~120.and 1926.65; ... .
6.07 Stormwater Discharge Requirements. If any . grant funds are used for urban site
. redevelopment, the Grantee shall at such redevelopment site meet or require to be met:
(a) all requirements of federal. and state law relating to stormwater discharges. including, without
limitation, any applicable requirements oftitle40, Code. of Federal Regulations; parts. 122 and
123; and,. . .
(b) any additional requirements of the Council's Interim Strategy to Reduce Nonpoint Source
Pollution. to All Metropolitan Water Bodies (1992) including, without limitation: (1) the
requirement to utilize the Minnesota Pollution Control Agency's urban best management
practices entitled Protecting Water Quality in Urban Areas; and (2) the requirement. tha.t all
stormwater must be pretreated by. facilities designed to provide pollutant removal efficiencies
equal to or greater than those observed in wet-detention basin facilities designed in accordance
. with the National Urban Runoff Program (NtJRP) design criteria.
6.08 Attachments~ The following are attached toihis agreement and are incorporated into and
made a part of this agreement:. ..
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(a) Attachment A - A summary of the project actiyityarid budgetptovisions of the Grantee's
'":e application for Tax Base Revitalization Account grant funds
(b) Attachment B ~. Grant Fund Disbursement' Schedule.',
(c )" Attachment C- Written Report Submission Schedule
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6.09 WarrantyofLegalCapacity. The individual signing this agreemel1t onbeh~lfofthe Grantee'
represents and warrarits on the Grantee's behalf that the individual is dulyatlthorized to execute, this .
agreement on the ,Grantee's behalf and that this agreem,ent constitutes the Grantee's valid, binding
and enforceable agreements., '
IN' WITNESS WHEREOF,' the Grantee and the Council' have caused, this, agreelllent to be ",
executed by their duly authorized representatives. This agreement is effective on the date of final
, execution by the Council. , ' " , ' , ,
Apptovedas to'form: ,"METROPOLITANCOUNCIL,
By
ASsociate General Counsel' . Elizabeth J. RYan, Director '
Housing and Livable 'Communities
Date
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CITY OF HOPKINS
By
Title'
Date
By
Title
Date,
SG2003132 , 06/04
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ATTACHMENT A
. APPLICATION FOR TAX 8ASE REVITALIZATION. ACCOUNT GRANT FUNDS
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This attachment comprises this page ,and, page A':'] and contains a summary of the proposed project
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identified in, the Grantee's grant application' which, was submitted in response to' theCouhcil's
notice of availability of granLfunds for the ,Fall 2003, grant cycle. ThesU11ll11ary reflects the
Grantee's 'proposed projecf as approved by the Council on December 17, 2003, and may reflect
changes in project' funding sources, changes in funding amounts, or minor changes in ,the proposed
'. 'project that occurred subsequent to application submission.' The Gnintee's grant application is
incorporated into this grant agreement by reference, and is made apart of this grant agreement
except as follows. If the Grantee's application or any provision in the grant application conflicts;
With or is inconsistent with other provisions .of this agreement or the project summary contained in:
this Attachment A, the tenns"descriptionsand dollar amounts contained this grant agreement and,
the project summary contained on page A-I shall prevaiL" , ' '
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Hopkins -KnoxILutherCompany
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$243.438 .
. 10.4
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$14.88
. $18,275000 ,.
$1,258,626
$0
$452,978 '.
/$0
The cityofHoPkinsseeksTBRA funding for soil renlc:nati~~at 250 Fifth AVenue South.
The former Knox Lumber site bas been defun.ctSince Fall o:f2001. Soil and groundwater
is impacted ontbis 10.~acre site with some conf1m'linSltion from the lumber operation and
a foriner motor vehicle service station, but primarily with previous uscs.oftractor and
'threshing machine manufacturing. Also, an existing building with, asbestos ccintaining
:materials willneed to be demolished. There are Iioviable.resporisiblep~es;. '>,' '
Some cleanup h~been cOJ11pletedo~the site, but additional workisneedeclto. ..
.'. '., accoriunodate the proposed relocation and: expansion' of the Hop~ Honda dealership. '
: Atwo-story~ slab~on-grade full service automobile sales and service dealersIiip and alito
. body shop will be built togetherWitb. utilities, a lined storm water retention pond, .a small
one-story office area ,building, vehicle inventory storage and parking, driving and green
spaces.
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.The original requestofTB:RA funds was to match aDEED grant.,DEED.waswlable to
fund the project. The request to TBRA funds was in~easedto an amountwhere the . '
project will still be viable while ranking high~ough to receive aTBRA awant : "
TBRA funds can be itsedfor investigation, soil ~ediation and asbestosa1)atement.
Total cleanup costs are estimat~ to be $1,258,626, which is almost 7% of the total
redevelopment costs. .
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ATTACHMENT' B
. GRANT FUND DISBURSEMENT SCHEDULE
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The total grantam.ount sp~cified in 'paragraph 2.01 of tlrls agreement' shall be disbursed to the
Gratltee for uses consistent with this agreement according to 'the following schedule:,.
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The CoUncil wtlldisburse grant funds in response to written disbursement requests
.submitted by the Grantee and reviewed and approved by the Council. 'Written
disburseinenf requests shall : indicate the Site cleanup' activity funded by this
agreement, ,the coritractor(s)/vendor(sJ:tobe paid,.and the time period within which
the cleanup work,was or will, beperfOrined. Disbursements prior to the performance .
.ofcleanllp(lctivitieswill be subject to terms , and conditions mutually agreed to by the
Council's authorized agent and the Grantee. Cleanup work performed in different
seasonal or construction activity time periods should be aggregated in separate
disbursement requests. . Subject to verification ofawrittendisbursemeIltrequest and
approval for consist~ncy with this agreement, the Council will.disbursea requested
amount to the Granteewithin.two (2) we,eks after receipt of a written disbursement
request '
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A1'TACHMENTC'
. WRITTEN REPORTS AND SUBMISSION SCHEDULE
By March 1 of the year following the termination of this grant agreement and by March 1 of each of '.
the succeeding foUr (4)yeafs, the Grantee must subl11itto theCouncil.an. annual written report that:
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1. Outlines the redevelopment activities completed on .the Site duringthepre,vious ,
. calendar year; and
2. Identifies the net tax' capacity of the Site as 'indicated byth.e dty or county. assessor
for the current year; and . .
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3. Identifies the part-time and full-time jobs created as a result of redeveloping .the
cleaned up, Site, including a list orthe net jobs as of the end of the previous calendar
year and the percentag~ .of riewjobs in the following hourly rate categories: .
Less than $8.49
Between $8.50 and $10.49
:BetWeen $10.50 and $12.50
More than $12.50
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. These reporting requirements shall survive the expiration or termination of this 'grant agreement..
AUTHORIZED AGENT
The Council's authorizedage!1t for thepurposesofafuninisteririg this agreement is Janice Gustafson
. or. another . designated Councileinployee. The written report(s) . submitted to the Council shall be
directed to the attention ofthe Council's authorized agentat the followirigaddress:
Metropolitan Council
Mears Park Centre
23'0 East Fifth Street
Saint Paul, Minnesota 55101-1634
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SUB-RECIPIENT AGREEMENT
THIS AGREEMENT, made on or as ofthe day of ,2004,
by and between the City of Hopkins, a home rule charter city under the laws of the ..State of
Minnesota (hereinafter referred to as the "City"), having its principal office at 1 01 0 First Street
South, Hopkins, Minnesota5534J, and The Luther Company Limited Partnership, a Minnesota
Limited Partnership and Hopkins Real Estate LLC, a Minnesota Limited Liability Company .
(hereinafter referred to as the "Redeveloper'\ having its principal office at Motors Management
Corporation, 701 Xenia Avenue South, Suite 220, Golden Valley, MN. 55416.
WITNESSETH:
WHEREAS, the Redeveloper is in the process of redeveloping certain real property located
within the City (~hich real property is referred to herein as the "Redevelopment PrOperty"); and
WHEREAS, the redevelopment of the Redevelopment Property includes the removal,
handling and disposal of contaminated soils located on the Redevelopment Property; and
WHEREAS, at therequest of the Redeveloper, the City applied for grant funds from the
. Metropolitan Council's ("Met Council") Livable Communities Fund to provide funding for
contamination abatement and related response actions .on the Redevelopment PrOperty (which
response actions are referred to herein as the "Work;') and.. .
WHEREAS, pursuant to an application to Met Council (the "Application"), the City was
awarded a Livable Communities. Grant (the "Grant") in the amolmt of$452,978;00, which Grant will
be disbursed by Met Council to the City pursuant to the terms and conditions of the Metropolitan
Livable Communities Act Tax Base Revitalization Account Grant Agreement attached hereto as
Exhibit A (the "Grant Agreement"); and
WHEREAS, the Redeveloper has agreed to pay any amount by which the cost of the Work
exceeds the Grant; and
WHEREAS, the parties desire to set forth in writing their agreement as to the disbursement
of the Grant from the City to Redeveloper.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
representations, warranties, covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
1. Accuracy of Recitals. The parties agree that the Recitals are. true and accurate.
. 2. Disbursement of Grant Funds. If and to the extent that the City receives funds
~ ..
. pursuant to the Grant, the City shall timely disburse them to the Redeveloper or any contractor
performing the Work, as designated by Redeveloper, subject to the terms and conditions of this
Agreement and the Grant Agreement. The City makes rio. representation or ~arranty conceming the
availability or sufficiency of the Grant.
3. Use of Funds. Redeveloper shall use any and all funds disbursed to it hereunder
solely to'pay, or to reimburse itself for paying, the costs and expenses incurred.byRedeveloper in
, , '
connection with the Work and otherwise in accordance with and subject to the sonditiof)s imposed
upon the City in the, Grant Agreement. . Redeveloper shall fake all steps necessary to assure such use
offunds through its contracts with its contractors.
4. Redeveloper Obli2ations. Redeveloper does hereby assume and agree ,to perfoml
and observe all ofthe covenants, obligations, agreements and conditions tobe perfOlmed or observed
by the City under the Grant Agreement. Without limiting the generality of the foregoing, the
Redeveloper specifically agrees as follows:
A. Redeveloper is the owner of the Redevelopment Property and has the legal
right to perform the Work on the Redevelopment Property. The Redeveloper shall
expeditiously and diligently commence arid pursue the Work so that the Wark is completed
and within the time frames specified in the Application and Grant Agreement, as adjusted for
delays in obtaining City approvals. Redeveloper shall immediately notify the City in the
. event of any change in the prospe'cts for the timely and satisfactory completion of the Work.
, ' .
Redeveloper hereby advises the Citythat it plans to begin construction ofthe Redevelopment
inJuly of2004, assuming City approvals are in place.
B. Redeveloper shall perform the Work, and shall include in any contract for
performance of any part ofthe Wark provisions requiring thecoritractor to perform such part
oftheWork ina good andworkl11anlike manner and in accordance with applicable state and
federal laws and regulations, including, without limitation, applicable MPCA regulations and.
requirements and applicable OSHA regulations, including the federal Hazardous Waste
,
Operations and Emergency Response Standards (29 CFR 1910.120 and 29 CFR 1926.65).
C. In the event that Met Council, pursuant to the Termination Clause in the Grant
Agreement, demands retum of grant funds already,disbursed, Redeveloper forthwith shall
within thirty (30) days of demand by the City pay the City the amount demanded by Met
Council.
D. Redeveloper shall maintain aycurate and complete books, accounts and
records pertaining to the Work (including without limitation any independent audits of
Redeveloper required by the Grant Agreement) and permit City and Met Council
representatives and other parties designated in the Grant Agreementto have free access to
and to inspect and copy all books, accounts, records and contracts relating to the Work and to
. discuss the same, as well as the progress and findings of the Work, with Redeveloper's
project managers at reasonable times and intervals.
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. E. Redeveloper shall prepare and timely submit to the City and Met Council the
annual reports on grant fund distribution and Work progress as required by the Grant
.Agreement.
F. The City's authorization ofthe submission ofthe Applications under the Met
Council Program was predicated on the understanding that the City would not incur any
financial obligations and that the Redeveloper would be responsible for the paym~nt of all
cost of the Work.in excess of the Grant, including, without limitation, any required local
contribution or local match required under the Programs. The parties agree and acknowledge
that no local match or contribution is required for the Grant. If the City is required to
actually pay any amount in connection with the Grant, the Redeveloper shaUwithin ten (10)
days after request by the City, payor reimburse the City for such amounts.
G. The Redeveloper shall provide all certifications at the times the same are
required to be provided under the Grant Agreement.
H. The Redeveloper agrees at all times during the term ofthis Agreement and for.
two (2) years after the termination hereof, to have and keep in force, and to require its
contractors and subcontractors to have and keep in force, the following insurance coverage:
. 1. Commercial General Liability on an occurrence basis with Contractual Liability
Coverage:
Limits
General Aggregate $1,000,000
Personal and Advertising Injury $1,000,000
Each Occurrence -
Combined Bodily Injury and Property Damage $1,000,000
2. Automobile Liability - Combined single limit each occurrence for $1,000,000
bodily injury and property damage' covering owned, non-owned,
and hired automobiles.
3. Workers' Compensation and Employer's Liability:
a. Workers' Compensation Statutory
If the contractor is based outside the State of Minnesota,
coverage must apply to Minnesota laws.
b. Employer's Liability. Bodily Injury by:
Accident - Each accident $100,000
Disease - Policy Limit $500,000
Disease -c Each Employee $100,000
. 4. Professional Liability - Per Claim and Aggregate $1,000,000
Hopkins \(,ivi I\Luthersu brecipientagt. In etcollnci I 3
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. The Redeveloper and any contractor or subcontractor performing any of the Work
under this Agreement shall furnish certificates of insurance to the City for the insurance
coverages listed above, and provide updated certificates as coverage expires. Neither the
Redeveloper nor any contractor or subcontractor shall commence the Work until the
Redevelpper and any contractor or subcontractor has obtained therequired proof ofinsurance
which clearly evidences required'insurance coverage.
5. Disbursement Procedures.
A. Redeveloper shall prepare and submit to the City periodic payment requests
for the costs and expenses ofthe Work in the form required by Mer Council and the City, and
the City shall forward the same to Met Council. The Redeveloper shall submit such other
documentation as the City may require relative to costs of the Work.
B. Payment requests may be submitted no more than monthly and shall be
submitted on or before the first day of the month.
C. Upon the City's receipt offunds from Met Council, the City shall forward the
same to the Redeveloper or the contractor designated by Redeveloper, provided (i)
Redeveloper is not in default hereunder and (ii) there has not occurred any change which, in
. the reasonable judgment oftry,e City, materially adversely affects the prospects for the timely
completion of the Work, as adjusted for any delay in obtaining City approvals.
6. Indemnity; Repavment to City. Redeveloper hereby releases and agrees to
indemnify, defend and hold harmless the City, the Authority, their directors, officers, employees and
agents, and their respective heirs, successors and assigns (collectively, the "Indemnified Parties")
from and against any and an claims, demands, judgments, penalties, liabilities, costs, damages and
expenses ("Liabilities"), directly or indirectly incurred by any of the Indemnified Parties, arising
from the subject matter. of this Agreement"Redeveloper's default under this Agreement and/or the
performance or nonperformance of the Work. Redeveloper specifically agrees that the Indemnified
Parties shall have no responsibility for, and the foregoing indemnity shall cover, Liabilities arising
under environmental laws and regulations related to the Work.
7. Independent Contractor. The Redeveloper shall select the means, method, and
manner of performing the Work. Nothing is intended or should be constmed in any manner as
creating or establishing the relationship of co-partners between the City and the Redeveloper or as
constituting the Redeveloper as the agent, r~presentative, or employee of the City for any purpose or
in any manner whatsoever. The Redeveloper is to be and shall remain an independent contractor
with respect to all services and activities performed under this Agreement. Any and all personnel of
the Redeveloper or other persons while engaged in the performance of any work or services required
by the Redeveloper under this Agreement shall not be deemed to have any contractual relationship
. with the City and shall not be considered employees of the City by virtue of this Agreement. Any
and all claims related to the Work that mayor might arise under the Minnesota Economic Security
Law or the Workers' Compensation Act of the State of Minnesota on behalf of said personnel,
11011 kins\Ci vi I\LlItherslIbrecipientagl.melcollllcil 4
. arising out of employment or alleged employment including without limitation, claims of
discrimination against the Redeveloper, its officers, agents, contractors, or employees shall in no way
be the responsibility of the City. The Redeveloper shall defend, indemnify andhold hannlessthe
City, its officials, officers, agents, and employees from any and all such claims. Such personnel or
other persons shall neither require nor be entitled to any compensation, rights, or benefits of any kind
whatsoever from the City, including, without limitation, tenure rights, medical and hospital care, sick
leave, Workers' Compensation, Re-employment Compensation, disability, severance pay, and
retirement benefits.
8. Costs and Expenses. Redeveloper agrees to reimburse the City within fourteen
(14) days of demand by the City for all reasonable out-of-pocket expenses paid or incun'edby the
City (including costs and fees and expenses of attorneys for the City) in connection with the
negotiation, preparation, appro"val, review, execution, delivery, amendment, modification,
interpretation, collection and enforcement of this Agreement. The obligation of Redeveloper
under this paragraph shall survive any termination of this Agreement.
9. Default~ Remedies. This Agreement maybe terfuinated only pursuant to Hie terms
and conditions for termination.under the Grant Agreement. If Redeveloper should default under this
.. Agreement, then in addition to any imd all other rights and remedies avai lable to the City under] aw,
the City may suspend or terminate .its. obligation to forward funds received pursuant to the Grant
Agreement to Redeveloper, except that Redeveloper shall be given an opportunity to cure as
. provided for inthe Grant Agreement.
10. Notices. All notices, requests and other. communications hereunder shall be in
writing and shall be sent by manual delivery, telegram, telex, electronic mail, facsimile transmission,
overnight courier or United States .mail (postage prepaid) addressed to the recipient at the below
address, or at such other address as such party shall have. specified to the other party hereto in
writing. All periods of notice shall be measured from the date of deliyery thereof if manually
deli vered, from the day of sending thereof if sent by telegram, telex, electronic mail or facsimi Ie
transmission, from the first business day after the date of sending if sent by overnight courier, or
from four days after the .date of mailing ifmailed.
If to the City:
City of Hopkins
1010 First Street South
Hopkins,MN 55343
Copy to:
Miller, Steiner & Curtiss, }l.A.
1011 First St. S. #400
Hopkins, MN 55343
. If to Redeveloper:
H opk ins\Ci vi I\LlIthers lIbrec ipientagt. m etcollnci \ 5
. Lynn Robson
The Luther Company Limited Partnership
Hopkins Real Estate LLC
701 Xenia Avenue South.
Suite 220
Golden Valley, MN 55416
Copy to:
Nanqy Quattlebaum Burke
Gray Plant Mooty
500 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
10. Miscellaneous.
A. Governing Law. All matters relating to the interpretation, construction,
. validity and enforcement of this Agreement shall be governed by the laws of the State of
Minnesota.
B. Entire Agreement. This Agreement contains the entire agreement of the
parties relating to the subject matter hereof and supersedes all prior .agreements and
understandings with respect to such subject matter, and the parties hereto have made no
agreements, representations or warranties relating to the subject matter of this Agreement
which are not set forth herein.
C. Amendments. No amendment or modification of this Agreement shall be
deemed effective unless made in writing and signed by the parties hereto.
D. No Waiver. No term or condition of this Agreement shall be deemed to have
been waived, nor $hall there be any estoppel to enforce any provisions of this Agreement,
except by a statement in writing signed by the party against whom enforcement ofthe waiver
or estoppel is sought. Any written waiver shall not be deemed a continuing waiver unless
specifically stated, shall operate only as to the specific term or condition waived and shall not
constitute a waiver of such term or condition for the future or as to any act other than that
specifically waived.
E. Assignment. This Agreement shall not be assignable, in whole or in part, by
. either party without the prior written consent of the other party.
F. Counterparts. This Agreement may be simultaneously executed in any
Hop k ins \C'ivi 1\ LlIlherslI breci pientagt. metcollllC i I 6
. number of counterparts, and such pounterparts executed and delivered, each as an original,
shall constitute but one and the same instrument.
G. Severability. To the extent any provision of this Agreement shall be invalid
or unenforceable, it shall be considered deletedherefrom and the remainder of such provision
and of this Agreement shall be unaffected and shall continue in full force and effect.
H. Exhibits~ Captions and Headlines~ Interpretation. Exhibit A hereto is
incorporated herein by reference. The captions ai1d paragraph headings herein are for
convenience ofreference only arid shall not affectthe construction or interpretation of this
Agreement. Should any provision of this Agreement require judicial interpretation, it is
agreed that the court interpreting or construing the same shall not apply a presumption that
the terms hereof shall be more strictly construed against one party by reason of the rule of
construction that a document is to be construed more strictly against the party who itselfor
though its agent prepared the same, it being agreed that the agents of both parties have
participated in the preparation hereof.
I. Bindine:Effect. This Agreement shall be binding on and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
. and year first above written.
CITY OF HOPKINS
By
Its
THE LUTHER COMPANY
LIMITED PARTNERSHIP
By
Its
HOPKINS REAL ESTATE LLC
By
. Its
Hop ki ns\C'i vi I\Lu thers ubrec i pi entagt. metcounci 1 7
. EXHIBIT A
GRANT AGREEMENT
UP: 1.567265 v2
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