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CR 2004-105 Sub-Recipient Agreement / ell Y Or:: '\ ;~. . Council Report 2004~ 105 June 23, 2004 ;: HOPKINS i . METROPOLITAN COUNCIL LIVABLE COMMUNITIES ACT TAX BASE REVITALIZATION ACCOUNT- . SUB-RECIPIENT AGREEMENT..... THE LUTHER COMPANY Proposed Action Staff recommends adoption of the following motion: Move to approve the sub-recipient agreement between the City of Hopkins and The Luther Gompanv relatinq to the Metropolitan Council Livable Communities Act Tax Base Revitalization Account agreement, and authorize its execution. With this motion the agreement will be executed and forwarded to The Luther Company for their execution. Overview At the request of The. Luther Company, the City of Hopkins applied.for and received a grant award of$452,978 through the Metropolitan Council Tax Base Revitalization Account. The grant funds will be used for cleanup of contaminated soil atthe former .. . " _ ' l' ' . Knox Lumber site, ,located at 250 Fifth Avenue South; The clean-up will'allow for the $ite to be redevelop,ed into the new location of Hopkins Honda. . The grant agreement with Metropolitan Councildetailsaccountingand record I<eepir,g requirements, disburs6rhentprocedures, reporting and other miscellaneous items. As a condition of receiving the grant funds, staff is recommending The Luther Company be required to execute a sub-recipient agreement obligating them to fulfill all the, obligations of the grant agreement. 'Primarv Issues to Consider " Through the sub-recipient agreement obligations of the grant agreementwill be passed on to The LutherCompany: In additiontheywill also be required to,indemnifythe City, of Hopkins of all liability and reimburse the City of allout..of.;pocket expenses incurred. Supportin~ Information . Sub-recipient Agreement . Metropolitan Council Metropolitan Livable Communities Act Tax Base Revitalization Account Agreement . "Financial Impact: $ 0 Budgeted: Y/N~ Source: Related Documents (CIP, ERP, etc.): Notes: . SUB-RECIPIENT AGREEMENT TI-IIS AGREEMENT, made on or as of the day of .- .-- ' 2110-1-_ hy and between the City of Hopkins, a home rule charter city under the laws of the Sl~\tc oj' f\linncsota (hereinafter referred to as the "City"), having its principal office at ](110 First Slreet South, llopkins, Minnesota 55343, and The Luther Company Limited Partnership, a iVli!lJlcSOI~1 Limited Partnership and Hopkins Real Estate LLC, a Minnesota Limited Liability Compall) (hereinafter referred to as the "Redeveloper"), having its principal office at Motors Management COIl}oration, 701 Xenia Avenue South, Suite 220, Golden Valley, MN 554J(J. WITNESSETH: \VIIEREAS, the Redeveloper is in the process of redeveloping certain real property locclted within the City (which real propel1y is referred to herein as the" Redevelopment Property"); and WHEREAS. the redevelopment of the Redevelopment Property includes the removaL h and I i Ilg ~ltld disposal 0 I' contam inated soils located on the Redevelopment Propcrty~ and WHEREAS, at the request of the Redeveloper, the City applied tor grant t~unds from the . ;Vletropolitclll Council's ("Met Council") Livable Communities Fund to provide Cundin:; rl)r contamination abatement and related response actions on the Redevelopment Properly (which response actions arc referred to herein as the "Work") and \VB EREAS, pursuant to an application to Met Council (the "Application"), the City waS awarded a Livable Communities Grant (the "Grant") in the amoun1 of5452,978.00, which Grant \vil! be disbursed by Met Council to the City pursuant to the terms ami conditions of the Metropolit~lIl Livable Communities Act Tax Base Revitalization Account Grant Agreement attached !lcretl) as c\.hibit A (the "Grant Agrecment"); and WHEREAS, the Redeveloper has agreed to pay any amount by which the cost orthe \Vork exceeds the Grant~ and \VHEREAS, the parties desire to set forth in writing their agreement as to the disbul"sl'nh.'lll or the Circlllt 110m the City to Redeveloper. NOW, THEREFORE, in consideration of the foregoing premises and the l1lu[u~d I"eprescnt~ltions, \varranties, covenants and agreements contained herein and otller good and \'aluable consilkration, the receipt and sufficiency orwhich are hereby acknowledged, the parties hereto agree as {allows: 1. AcclIracv of Recitals. Tl1e pat1ies agree that the Recitals arc true and accur~lte. . 2. Disbursement of Grant Funds. If and to the extent that the City rcct'ives rumls . pursuant to the Grant, the City shall timely.disburse them to the Redeveloper or '~ny contractor. performing the Work, as . designated by Redeveloper, subject totheterms and conditions of this' Agreement and the GrantAgreement. The City makes no representation orwarrantyconceniing the availability or sufficiency of the Grant. , . ,3. . Use of Funds. Redeveloper shall use any and allfunds disbursed to it hereunder. . solely to pay, or to reimburse itself for paying, the costs and expenses incurred by Redeveloper in . connection with the Workand otherwise in accordance with and subject to thecoriditions imposed upon the City in the Grant AgreemeI1t.Redeveloper shall take all steps necessary to assure such use , . , of funds through its contracts with its contr~ctors. : . , , . , 4. Redeveloper Obli2atiolls. Redeveloper does hereby assume and agree to perform . and observe all of thepov en ants, obligations, agreements and conditions to be performed or observed by the City under the Grant Agreement. Without limiting the gene,ralityoftheforegoing, the Redeveloper specifically agrees as follo'Ys; " 'A. Redeveloper is the owner of the Redevelopment Property arid has the legal right to perform the Work on .the Redevelopment Property. TheRedeveloper shall . expeditiously and diligently commence and pursue the Work so that theWork is completed and within the time frames specified in the Application and Grant Agreement, as adjusted for delays in obtaining City approvals. Redeveloper shall immediatelynptifythe City in the '. . event of any change in the prospects for the timelyahdsatisfactory completionofthe Work. . . Redeveloper hereby advises the City that it plans tcibegin construction oftheRedevelopment in July of 2004, assuming City approvals are in place.. . B. . Redeveloper shall perform the W ark, and shall include in any contract for perfOrmance of any part of the Work provisions requiring the col1tractor to perform such part of the Work in a good and workmanlike manner andinaccordance withapplicable state and federal laws and regulations, including, without limitation, applicable MPCA regulations and .requirements and applicable OSHA regulations,inc1uding the federal RazardousWaste Operations and EmergencyResponseStandards (29 CFR 1910.120 and 29 CFRl926.65).' . 'C,.. In the. event thatMetCouncil, pursuant to the Termination Clause in the Grant Agreement, demands return 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 accurate 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 Agreement to 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 atreasonabletimes and intervals. H or ki ns\C i vi 1\ Lu thersu brec i pi entagt.metcounc i I 2 . E. Redeveloper shall prepare andtimely submittotheCity and Met Council the .. annual reports on grant fund distribution and Work progress as required by the Grant Agreement. , F. The City's authorizationofthe submission oftheAppli~ations under the Met Council Program was predicated on the understanding that the City would nor incur any financial obligations and that the Redeveloper would be responsible for the payment of all cost ofthe Work inexcess of the Grant, including, withoutlimitation, any required local contribution or local match required under the Programs. The parties agree .and acknowledge. thatno.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 Red~ve19pershall within ten (1 0) 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 duringthe term 9fthis Agreement and for two (2) years after the termination hereof, to have .and keep iri force, and to require its contractors and subcontractors to have and keep in force, the Jollowing insurance coverage': .' ., . , 1. Commercial General Liability on an occurrence basis with Contractual Liability .' Coverage: Lilli ts . 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 limifeach occummce for $1,000,000 bodily inju~ 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 ~ Each Employee $ 100,000 . 4. Professional Liability - Per Claim and Aggregate $1,000,000 Hop ki n slCiv i !lLu thersu brec ipientagt.metcounci 1 3 . 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 noranycontractor or subcontractor shall commence the Work until the. . Redeveloper and any contractor or subcontractor has obtained the required proof of insurance whichclear1y evidences required insurance coverage. . . 5. Disbursement Procedures. A. Redeveloper shall prepare and submit to the City periodic payment requests ... . for the costs and expenses of the Work in the form required by Met Council and the City, and the City shall forward the same to Met Council. .TheRedevelopefshall submit such either documentation as the City may require relative to costs of the Work. . . ," ,,' . I ' . . B. Payment requests may be submitted .no more than monthly and shall be submitted on orbeforethefirst.day of the month. .. C~ Upon. the City's receipt of funds from Met C;ouncil, the City shall forward the . same to the Redeveloper or the contractor designated by Redeveloper,<provided (i) Redeveloper is hot in default hereunder and (ii) there has not occurred any change which, in . the reasol1ablejudgment oftheCity,materiallyadversely affects the prospects for the timely completion. of the Work, as adj1ist~dfor any delay in obtaining City approvals. . . . 6. Indemnitv;Repavment to City. Redeveloper hereby releases and agrees to inderimify, deferid and hold harri11ess the City, the Authority, their directors, officers, employees and agents, and their respective heirs, s~ccessorsand assigns (collectively, the "Indemnified Parties") . from and against any and all Claims, demands, judgments, penalties, liabilities, costs, damages and e~penses (Liabilities"), directly or indirectly incurred by any of the Indemnified Parties, arising fromthe subject matter of this Agreement,.Redeveloper's defaulturider this Agreement and/or the performance or nonperformance of the Work. Redeveloper specificallyagrees that the Indemnified Parties shall have no responsibility for, and the foregoing indemnity shall cover, .Liabilities arising uriderenvironm.entallaws 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 construed in any manner. as . creating or establishing the relationship <;:>f co-partners between the City and the Redeveloper or as constituting the Redeveloper as the agent, representative, or employee of the City for anypurpose or in any.manner whatsoever. The Redeveloper is to be and shall remain an independent contractor . with respectto 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 U1i.der this Agreement shall not be deemed to have any contractual relationship with the City andshall not be considered employees of the Cityby virtue of this Agreement Any . .ahd all claims related to the Workthat mayor might ariseunder the Minnesota Economic Security Law or the Workers' Compensation Act of the State of Minnesota on behalf of said personnel, II opki 11 s\C j v i 1\ Lu thers 1I brec i p ientagt: metcou nci 1. .4 . arising out of employment or alleged employment inchiding 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 and hold hannless the City, its officials, officers, agents, and employees from any andans~ch c1ainls. Such p~rsonnel or other persons shall neither requirenorbeeniitledtd any compensation, rights, or benefits of any kind whatsoever from the City, including, without limitation, tenure rights, medical and ho'spitalcare,sick leave, Workers' Comp~nsatiori; Re~employment Compensation, disability, severance pay, and'. retirement benefits. " , , 8. Costs and Expenses. Redeveloper agrees to reimbUrse the City within f~urteen, (14) days of demand by the City for all reasonable out-of':pocket exPenses paid or incurred by the City (including costs and fees and expenses ofattonieys for the City)inconnection with the' , , -, .. negotia:tion, preparation, approval, review, ~xecutioIl"delivery, amendment, modification, , interpretation, collection and enforcement ,of this Agreement. The obligation of ~edeveloper under this paragraph shall surVive any tenninatioJi of this Agreement. ' " 9. Default:Remedies. This Agreement may be tenninatedonlypursuant to the tenns and conditions for tennination under the Grant AgreeinellflfRedeveloper should default under this .. Agreement,theninadditi6nto any and all other fights and remedies available to theCityunderlaw, the City may suspend or tenninate its obligation to forward funds receivedpursuanfto thedrant Agreement to Redeveloper, except that Redeveloper shall be, given an opportunity to cure as . .. provided for in the GraJit Agreemc:mt. , , , ' : " . ' 10. Notices. , All notices, requests and other communications hereunder shall 'be in wri ting and' shall be sent by manual' deli very, telegrain, telex, electronic mail, facsimile transmission, overnight courier or United States mail (postage prepaid) addressed' t6 th~ recipient at the below address, or at such other addr~ss as such party shall have specified to the other party hereto in writing.' All periods of notice shall be measured from' the date of delivery thereofif manually delivered, from the day of sending thereofif sent by telegram, ,teleX:, electronic l11ai16{facsimile transmission, from the first business day after the date of sending if sentbyoverl1ighfcourier, or from four days after the date of mailing if mailed. If to the City: City of Hopkins 1010 First Street South Hopkins, MN 55343 Copy to: Miller, Steiner & Curtiss, P.A. 1011 First St. S. #400 Hopkins, MN55343 . If to Redeveloper: H opkins\C ivi I\Luthersu brec ipientagt.metcouncil 5 , , ' . Lynn Robson The Ltither Company Limited Partnership Hopkins Real Estate LtC 701 Xenia Avenue South Suite 220 ' "GoldenNalley, MN 55416, Copy to: Nancy Quattlebaum Burke" , Gray Plant Mooty 500 IDS Center 80 South Eighth Street Minneapolis; MN 55402' 10; , Miscellaneous. A. ' Governin2 Law. All matters relating tattle interpretation, construction, .. validity andenfo:rcement of this Agreement shall be governed by the laws of the State of Minnesota.; B. Entire A2reement. This Agreement contains the entiTy agreement of the parties relating to the subject matter hereof and 8upersedesall prior agreements and . ' ," understandings withrespectto such subject matte~,and the parties hereto have made no agreements, representations or warranties relating to the subjectmatter of this Agreement which are not set forth herein. C. Amendments. No amendment or rriodificatiouof 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 Agreementshallbe deemed to have been waived, nor shall there be any estoppel to enforce any provisions of this Agreement, except by a statement in writing signed by the party against whom enforcement of the 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. Assi2nment. Thi'sAgreement shall not be assignable, in whole or in part, by . either party without the prior written cons.ent of the other party. F. Counterparts. This Agreement may be simultaneously executed ih any , Ho pkin s \Ci \Ii \\L1.ltherSLl breci p ientagt. m etcounci I 6 . number of counterparts, and suph counterparts executed ami 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 deleted herefrom and the remainder of such provision and of this Agree.ment shall be unaffectedand.shallcontinue in full force and effect. , H. .Exhibits~Captionsand lJeadlines~ Interpretation. Ex:hibit A hereto is incqrporated herein by reference. . The captions and. paragraph headings herein are for' convenience of reference only and sh.all not affect the construction or .interpretationof 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 morestrictlyconstrued against one party by reason of the rule of construction thata. docllment is to be construed more strictly againsttheparty who itself or though its agent prepared the same,. it being agreed that the agents of both parties have participated in the preparation hereof;' ., I., Binding Effect. This Agreementshallbebinding on and inure to the benefit ,of the parties hereto and their respective successors ~nd permitted assigns. . ' , . IN WITNESS WHEREOF, the parties hereto have executed this Agreement as ofthe day . and year first above written." . CITY OF HOPKINS By Its THE LUTHER COMPANY LIMITEDP ARTNERSHIP By Its HOPKINS REAL ESTATE LLC By . Its Hop 1< i ns\Ci vil\LlItherslI brec i pi ent<lgt.m etcoll nci 1 7 . . EXHIBIT A GRANT AGREEMENT OP: 1567265 v2 -. . , .', Hop k i ns\Ci v i I\Luthersu brecipi en tagt.metcounci I 9 Grant No. SG2003-132 . ' METROPOLITANLIV ABLE COMMUNITIES ACT TAX BASE REVITALIZATION ACCOUNT GRANT AGREEMENT THIS GRANT AGREEMENT is made and entered into by the Metropolitan Council ("Council") and the City of Hopkins ("Grantee"). WHEREAS, Minnesota Statutes section 473.251 creates the Metropolitan Livable Communities Fund, the uses of which fund must be consistent with and promote the purposes of the Metropolitan Livable Communities Act and the policies of the Metropolitan' Development' Guide adopted by the Council; and WHEREAS, Minnesota Statutes sections 473.251 and 473.252 establish within the Metropolitan ~..-;-_. Livable Communities Fund a Tax Base Revitalization Account and require the 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 WHEREAS, the Grantee is a "municipality" as defined in Minnesota Stafutessection 473.252, subdivision 1 or ,a "development authority" as defined in Minnesota Statutes section 473.252, . subdivision la and submitted an application for Tax Base'Revitalization Account funds in response to the Council '8 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 funds to certain municipalities or development authorities which . submitted grant applications to the Council during the Fall 2003 grant cycle, including the Grantee. 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 De:fmition of Terms. For the purposes of this agreement, the terms defined in this paragraph have the meanings given them in this paragraph unless otherwise 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 of implementing an Asbestos Abatement Plan for the Site which is carried out by contractors or subcontractors licensed or certified by the Commissioner of Health under the Minnesota Asbestos Abatement Act, Minnesota Statutes sections 326.70 to 326.81, in accordance with rules prescribed by the ro Page 1 of7 Pages Commissioner of Health related to asbestos abatement and asbestos management activity, .. and meeting the . federal Asbestos Hazard Emergency . Response Act ("AHERA") standards for asbestos; or (3) for petroleum contamination, the cost of implementing a Corrective Action Plan for the Site approved by the Minnesota Pollution Control Agency under Minnesota Statutes, chapter IISC. (b) "Development Authority" means a statutory or home rule charter. city, housing and redevelopment authority, economic development authority, or a port authority in the Metropolitan Area. (c) "Metropolitan Area" means the seven-county metropolitan area as defined by Minnesota Statutes section 473.121, subdivision 2. (d) "Municipality" means a statutory or home rule charter city or town participating in.the.Local Rousing Incentives Program under MirmesotaStatutessection 473.254, or a county in the Metropolitan Area. (e) "Participating Municipality" means a statutory or home rule. charter City or town which has elected to participate in. the Local Housing Incentive Account program and negotiated affordable and life-:cycle housing goals for the Municipality pursuant to Miruiesota Statutes section 473.254. .' (f) "Project Costs" means all costs as defiJ;1ed in Minnesota Statutes section 116J .5S2, subdivision 7. (g) "Site" means the land proposed by the Grantee to .be cleaned up and located both within the Metropolitan Area and within the jurisdiction .of the' Grantee. II. GRANT FUNDS 2.01 Total Grant Amount. The Council will grantto the Gran.teea total sum of $452,978.00 which shall be funds from the Tax Base Revitalization Account of the Metropolitan Livable Communities Fund. Notwithstanding anyother provision ofthis 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 a like reduction to the Grantee. 2.02 Authorized Use of Grant Funds. The total grant amount made 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 application for Tax Base Revitalization Account grant funds (the Site). A summary of the project described in the Grantee's application is attached to and incorporated into this agreement as Attaclunent A. Grant funds must be used for cleanup 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 that qualify for a grant under Minnesota Statutes sections 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 p{ Page 2 of 7 Pages -~-- 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 ofthe grant funds. 2.03 Disbursement Schedule. The Council will disburse the grant funds to the Grantee in accordance with the grant fund disbursement schedule contained in Attachment B, which is incorporated into and made a part of this agreement. The Council will make disbursements only upon receipt of a written disbursement request from the Grantee's authorized agent or representative. The written disbursement request must include a statement indicating the Grantee's expectation to complete the cleanup and redevelopment consistent with the Council's approved project description or, if applicable, any amended project description approved by the Council's authorized agent. 2.04 Interest Earnings. If the Grantee earns any interest or other income from the grant funds received from the CoUncil under this agreement, the Grantee willuse the interest earnings or income only for the purposes of implementing the project activities described in Attachment A. 2.05 Effect ()fGrant. Issuance of this grant neither implies any Council responsibility for the contamination at the Site hot imposes any obligation on the Council to participate in the cleanup of the Site contamination or in the Cleanup Costs beyond the amount of this grant. . III. ACCOUNTING, AUDIT AND REPORT REQUIREMENTS 3.01 Accounting and Records. The Grantee agrees to establish and maintain accurate and complete accounts and records relating to the receipt and expenditure of all grant funds received from the CounciL Notwithstanding the expiration and temrinatiort provisions of paragraphs 5.01 and 5.02, such accounts and records shall be kept and maintained by 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 of the grant funds, whichever occurs earlier. For all expenditures of grant funds received pursuant to this agreement, the Grantee will keep proper financial records including invoices, contracts, receipts, vouch€?fs 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 Grantee shall be audited in the same 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 any time, 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 of the 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 the project activities described in Attachment. A and the expenditures . of the grant funds. 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 plans that occur either prior to the .. termination of this grant agreement or during the reporting period identified in Attachment C. OQ . . 'Page 3 of 7 Pages - --- 3.04 Certification of Completion. Upon completion of Site cleanup, the Grantee will provide to . the Council: (a) for hazardous waste or substance contamination, a copy of a Certificate of Completion for the Site issued by the Minnesota Pollution Control Agency pursuant to Minnesota Statutes, section 115B.175, or a letter frointhe Agencyindicating that the approved Response Action . Plan for the Site has been implemented to .the satisfaction of the Agency and thatthe Agency is issuing a determination that no further action is required under Minnesota Statutes sections lISB.Ol to l15B.08 to address the Identified Release; or (b) for asbestos contamination, a copy of a statement from the Grantee' slicen:sed Asbestos Abatement Contractor that the Asbestos Abatement Plan for the Site has been completed in accordance with the rules of the Minnesota Department of Health; or (c) forpetroleum contamination, a copy of a Site Closure Letter issued by the Minnesota Pollution Control Agency pursuant to Minnesota Statutes chapter 1lSC. IV. RECOVERY AND REPAYMENT 4.01 Recovery of Funds. If the Grantee recovers funds pursuant to an action under MiJ:mesota Statutes section l15B.04, or other law, to recover 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 in paragraph 4.01 to the Council, shall prepare and submit a certification of the Project Costs incurred, and shall cooperate in any cost recovery action brought by the Council. 4.03 Expenses of Recovery. The reasonable litigation expenses or other costs of legal or technical assistance incurred by the Grantee, the Council, or both, may be deducted from recovery obtained in accordance with paragraphs 4.01 or 4.02 and reimbursed to the entity.incuning 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 recovered 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 reimburse the. Grantee, the Council, or any other nonresponsible party who contributed funds for cleanup of the Site in proportion to their respective payments for response costs. 4.05Surnval of Section. The provisions of Section IV (RECOVERY AND REPAYMENT) shall survive the expiration or tennination 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 confirmation pursuant to this paragraph, this agreement will terminate December 31, 2005. The term of this agreement may ID Page 4 of 7 Pages. . 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, identifies a new completion date and describes in reasonable 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's. authorized agent. Upon termination of this agreement, the Grantee must submit the annual written reports described in Attachment C. 5.02 Termination. This agreement may be terrhinated by the Councilfor cause at any time upon fourteen (14) calendar days' written notice to the Grantee. Cause shall mean .amaterial breach of this agreement, and. any amendments of this agreement, and includes failure to make reasonable and timely progress in performing and completing the project activities described in Attachment A. The Grantee shall have the right to cure.any and all defaults during the fourteen-day notice period withoutincurring penalty. If this agreement is terminated, the Grantee shall receive .payment on a . pro rata basis for project ?ctivities described in Attachment A that have been completed. Termination of this agreement does not alter the Council's authority to recover grant funds on the basis of a later audit or other review, and does not alter the. Grantee's obligation to return any grant funds due to the Council asa result .of latf;T audits or corrections. If the Council detennines the Grantee has failed to comply with the. terms and.conditions of this agreement and the applicable provisions of the Metropolitan Livable Communities Act, the Council may take any ~ction 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 agreementbymutual agreement. Except. for a term extension pursuant to paragraph 5.01, amendments, changes or modifications of this agreement shall be effective only on the execution of written amendments si~ed.by authorized representatives of the Council and the Grantee. VI. GENERAL PROVISIONS. 6.01 Equal Opportunity. The .Grantee agrees it will not discriminate against any employee or applicant for employment because of race, color, creed, religion, national.origin, sex, marital status, status" with regard to public assistance, membership or activity in a local civil rights commission, disability, sexual orientation or age and. take affirmative. action to insure applicants and employees are treated equally with respect to all aspects of employment, rates of pay and other forms 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 permitted by law, the Grantee shall defend, indemnify and hold harmless the Council and its members, employees and agents from and against all 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 in this indemnification include, . without limitation, any claims asserted pursuant to the Minnesota Environmental Response and Liability. Act (MERLA), Minnesota Statutes chapter 115B, the federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) as amended, 42 U.S.C. sections 9601 et seq., and the federal Resource Conservation and Recovery Act of 1976 .~... Page 5 of 7 Pages (RCRA)as amended, 42U.S.C. sections 6901 et seq. This obligation shall not be construed to . negate, abridge or otherwise reduce any other right or obligation of indemnity which otherwise would exist between the Council and the Grantee. The provisions of this paragraph shall survive the termination of this agreement. This indemnification shall not be construed as a waiver on the part of either the Grantee or the COlUlcilof any immunities or limitson liability provided by Minnesota Statutes chapter 466, or other applicable state or federal law. 6.04 Acknowledgments. The Grantee shall acknowledge the financial assistance provided by the COlUlcil in promotional materials, press releases, reports and publications relating to the project activities described in Attachment A which are funded in whole orin part with the grant funds. The acknowledgment should contain the following language: Financing for this project was provided by the Metropolitan Council Metropolitan Livable Communities Fund. Until the project activities funded by this agreement are completed, the. Grantee shall ensure the above aclmowledgment language, or alternative language approved by the Council's authorized agent, is included on all signs located at project or construction sites that identify project sponsors or entities providing financial support for the project. 6.05 Permits, Bonds and Approvals. The COlUlcil assumes no responsibility for obtaining any applicable local, state or federal licenses, permits, bonds, authorizations or approvals necessary to petform or complete the project activities described in Attachment A. . 6.06 Contractors and Subcontractors. The Grantee shall include in any contract or subcontract for project activities related to the cleanup of polluted . land appropriate contract provisions to ensure contractor and subcontractor compliance with all applicable state and federal laws. Along with such provisions, the Grantee shall require that contractors and subcontractors performing work covered by this grant comply with all applicable state and federal Occupational Safety and Health Act regulations, especially the federal Hazardous Waste Operations and Emergency Response standards lUlder title 29, Code of Federal Regulations, sections 1910.120 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 federa}.and state law relating to stormwater discharges including, without limitation, any applicable requirements oftitle 40, 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 that all stormwater must be pretreated by facilities designed to provide pollutant removal efficiencies equal to or greateithan those observed in wet-detention basin facilities designed in accordance . with the National Urban Runoff Program (NURP) design criteria. 6.08 Attachments. The following are attached to this agreement and are incorporated into and made a part of this agreement: rorr.. Page 6 of 7 Pages -- - -- . (a) Attachment A - A summary of the project activit.yandbudget provisions of the Grantee's . application for Tax Base Revitalization Account grant funds (b) Attachment B - Grant Fund Disbursement Schedule . (c) Attachment C - Written Report Submission Schedule 6.09 Warranty of Legal Capacity. The individual signing this agreement on behalf of the Grantee represents and warrants on the Grantee's behalf that the individual is duly authorized to execute this agreement on the Grantee's behalf arid that this agreement constitutes the Grantee's valid, binding and enforceable agreements. IN WITNESS WHEREOF, the Grantee and, the Council have caused this agreement to be executed by their duly authorized representatives. This agreement is effective bn the date of final execution by the Council. Approved as to form: METROPOLITAN COUNCIL By Associate General Counsel Elizabeth J. Ryan, Director Housing and Livable Communities Date . CITY OF HOPKINS By Title. Date By Title Date 002003132 06/04 . (if Page 7 of 7 Pages ATTACHMENT. A . APPLICATION FOR TAx BASE REVITALIZATION ACCOUNT GRANT FUNDS This attachment comprises this page and page A;.;j and contains a summary of the proposed project identified in the Grantee's grant application which was submitted in response to the Council's notice of availability of grant funds for the Fall 2003 grant cycle... The . summary reflects the Grantee's proposed project 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 Grantee's grant application is incorporated into this grant agreement by reference arid is made a .part 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 terms, descriptions and dollar amourttscontained this grant agreement and the project sumrilarycontained on pageA-j shall prevail. . , . \~ . . . . . - . . Hopkins - KnoxILuther Company $243,438 . 10.4 47 $14.88 '$18275000 $1,258,626 $0 $452 978 $0 : The city of Hopkins seeks TBRA funding for soil remediation at 250 Fifth Avenue South. The former Knox :Lumber site has been defunct sinceFaU of 200 1. Soil and groundwater is impacted on.tbis 10.4~acre site with some contamination from the lumber operation and a former motor vehicle service station, but primarily with previous uses of tractor and threshing machine manufacturing. Also, an existing building with asbestos cOntaining materials will need to be demolished. There are no viable.responsiblep~es. .. Some cleanup has been completed on the site, but additional work is needed to accommodate the proposed relocation and. expansion of the Hopkins Honda dealership. A two-story, sIab..on-grade full service automobile sales and service dealersliip and auto . body shop will be built together with utilities, a lined storm water retention pond, a small one-story office area building, vehicle inventory storage and parking, driving and green spaces. The original request ofTBRA funds was to match a DEED grant. DEED was unable to fund the project The request to TBRA funds was increased to an amoWlt where the project will still be viable while rankihg high eJ1.ough to receive a TBRA award. mRA funds can be used for investigation, soil ~ediation and asbestos abatement. Total cleanup costs are estimated to be $1,258,626, which is almost 7% of the total red~velopment costs. . . . . . . A -1 .(15 ATTACHMENT B . GRANT FUND DISBURSEMENT SCHEDULE The total grant amount specified in paragraph 2.01 of this agreement shall be disbursed to the Grantee for uses consistent with this agreement according to the following schedule: . The Council will disburse grant. funds in response. to written disbursement requests submitted by the Grantee and reviewed and approved by the Council. . Written disbursement requests shall indicate the Site cleanup activity funded by this agreement, the contractor(s)/vendor(s) to be paid, and the time period within which the cleanup work was or will be performed~ Disbursements prior to the performance of cleanup activities will be subject to tenUs and conditions mutually agreed to by the Council's authorized agent and the Grantee. Cleanup work performed indifferent seasonal or construction activity time periods should be aggregated in separate disbursement requests. Subject to verification of a written disbursement request and approval for consistency with this agreement, the Council will disburse a requested amount to the Grantee within two (2) weeks after receipt of a written disbursement request. . . (J1 -- ATTACHMENT C . 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) years, the Grantee must submit to the Council an annual written report that: 1. Outlines the redevelopment activities completed on the' Site during the previous calendar year; and ' . 2. Identifies the net tax capacity of the Site as indicated by the city'or county assessor for the current year; and 3. Identifies the part-time and full-time jobs created as a result of redeveloping the cleaned up Site, including a list of the net jobs as of the end of the previous calendar year and the percentage of new jobs 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 . These reporting requirements shall, survive the expiratio~ or termination of this grant agreement. AUTHORIZED AGENT The Council's authorized agent for the purposes of administering this agreement is Janice Gustafson - or another designated Council employee. The written, report(s) submitted to the Council shall be directed to the attention of the Council's authorized agent at the following address: Metropolitan Council Mears Park Centre 230 East Fifth Street Saint Paul, Minnesota 55101-1634 'e il'