CR 2004-091 Hennepin County Evironmental Response Fund Grant-SuB-Recipient Agreement
1', i' CITY OF
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May 25, 2004 HOPKINS Council Report 2004-091
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HENNEPIN COUNTY ENVIRONMENT AL RESPONSE FUND GRANT _
SUB-RECIPIENT AGREEMENT - THE LUTHER COMPANY
Proposed Action
Staff recommends adoption of the following motion: Move to approve the sub-recipient
aqreement between tne City of Hopkins and The Luther Company relatinq to the
Hennepin County Environmental Response Fund qrant aqreement, 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 Hc>pkins applied fc>r and received a
grant award of $105,833.00 through the Hennepin County Environmental Response
Fund. The grant funds will be used for cleanup of contaminated soil at the former Knc>x
Lumber site, located at 250 Fifth Avenue South. The clean-up will allow for the site to
be redeveloped into the new Ic>cation of Hopkins Honda.
The graht agreement with Hennepin County details accounting and record keeping
. requirements, disbursement procedures, reporting and other miscellaneous items. As a
condition of receiving the grantfunds,-staff is recommending The Luther Company be
required to execute a sub-recipient agreementobligating them to fulfill all the obligations
of the grant agreement.
Primary Issues to Consider
Thrc>ugh the Sub-recipient Agreement obligationsc>f the grant agreement will be passed
on to The Luther Company. In addition they will also be required to indemnify the City
of Hopkins-of aI/liability and reimburse the City of all out-of-pocket expenses incurred.
SUPportin~ Information
. Sub-recipient Agreement
. Hennepin County Environmental Response Fund Grant Agreement
ent Coordinator
Financial Impact: $ 0 Budgeted: Y/N Source:
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. Related Documents (CIP, ERP, etc.):
Notes:
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. SUB-RECIPIENT AGREEMENT.
THIS AGREEMENT, made on or as of the 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 1010 First Street
South, Hopkins, Minnesota 55343, 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 (which 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 the request of the Redeveloper, the. City applied for grant funds from
Hennepin County's (the "County") Department of Environmental Services (the "Department") to
provide funding for response actions related to the contaminated soils on the Redevelopment
. Property (which activities are referred to herein as the "Work") and
WHEREAS, pursuant to an application to the County (the "Application"), the City was
awarded an Environmental Response Fund Grant (the "Grant") in the amount of$1 05,833.00, which
Grant will be disbursed by the County to the City pursuant to the terms and conditions of the
Environmental Response Fund 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
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. performing the Work, as designated by Redeveloper, subject to the terms and conditions of this
Agreement and the Grant Agreement. The City makes no representation or warranty concerning 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 incurredhy Redeveloper in
connection with the Work and otherwise in accordance with and subject to the conditions imposed
upon the City in the Grant Agreement. Redeveloper shall take all stepsnecessary to assure such use
of funds through its contracts with its contractors.
4. Redeveloper Obli2:ations. Redeveloper does hereby assume and agree to perform
and observe all ofthe covenants, obligations, agreements and conditiolls to be performed 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 and pursue the Work within the time.frames specified
in the Application and Grant Agreement, as adjustedfor delays in obtaining City approvals.
Redeveloper shall immediately notify the City.inthe event of any change in the prospects for
the timely completion of the Work. Redeveloper hereby advises the City that it plans to
. begin construction of the Redevelopment in July of 2004, assuming City approvals are in
place.
B. Redeveloper shall perform the Work, and shall include in any contract for
performance of any part of the Work provisions requiring the contractor to perform such part
ofthe Work ina good and workmanlike manner and in accordance with applicable state and
federal laws and regulations, including~ without limitation, applicable MPCA regulations and
requiryments 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 the County, pursuant to the "Termination Clause" in the
Grant Agreement, demands return of grant funds already disbursed, Rydeveloper forthwith
shall within thirty (30) days of demand by the Citypay the City the amount demanded by the
County.
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, County, Department and
Minnesota State Auditor 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 at reasonable times and intervals. The
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. Redeveloper shall retain such materials and such access and rights shall be in force and effect
during the period of the Grant Agreement and for six (6) years after its termination or
cancellation.
E. Redeveloper shall prepare and timely submit to the City and County all
reports on grant fund distribution and Work progress as required by the Grant Agreement.
F. The City's authorization of the submission of the Applications under the
County's ERF Program was predicated on the understanding that the City would not incur
any financial obligations and that the Redeveloper would be responsible for the payment 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 shall within 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 of this 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
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. Disease - Policy Limit $500,000
Disease - Each Employee $100,000
4. Professional Liability - Per Claim and Aggregate $1,000,000
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
Redeveloper and any contractor or subcontractor has obtained the required proof of insurance
which clearly evidences required insurance coverage.
I. The Redeveloper shall include in any contract, provisions that require its
contractors to comply with all applicable state and federal laws and regulations regarding
employment and workplace safety.
In accordance with the City's policies against discrimination, no person shall be
excluded from full employment rights or participation in or the benefits of any program,
service, or activity on the grounds of race, color, creed, religion, age, sex, disability, marital
status, sexual orientation, public assistance status, or national origin; and no person who is
protected by applicable Federal or State laws, rules, or regulations against discrimination
. shall be otherwise subjected to discrimination.
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 the County and the City, and
the City shall forward the same to the County in the manner and upon the schedule set forth
in the Grant Agreement. The Redeveloper shall submit such other documentation as the City
or County 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 of funds from the County, 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 of the City, materially adversely affects the prospects for the timely
completion of the Work, as adjusted for any delay in obtaining City approvals.
6. Indemnitv. Redeveloper hereby releases and agrees to indemnify, defend and hold
harmless the City, the County, the Department, their officials, directors, officers, employees and
agents, and their respective heirs, successors and assigns (collectively, the "Indemnified Parties")
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. from and against any and all 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
perfonnance or nonperfonnance 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 perfonning the Work. Nothing is intended or should be construed 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, representative, or employee ofthe 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 perfonned under this Agreement. Any and all personnel of
the Redeveloper or other persons while engaged in the perfonnance 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,
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 and hold hannless the
. 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.
Default~ Remedies. This Agreement may be tenninated only pursuant to the tenns I
and conditions for tennination provided under the Grant Agreement. If Redeveloper should default
under this Agreement, then in addition to any and all other rights and remedies available to the City
under law, the City may suspend or tenninate 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 in the Grant Agreement.
Notices. All notices, requests and other communications hereunder shall be in I
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
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. 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 delivery thereof if manually
delivered, from the day of sending thereof if sent by telegram, telex, electronic mail, or facsimile
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 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, MN 55343
If to Redeveloper:
. Lynn Robson
The Luther Company Limited Partnership
Hopkins Real Estate LLC
701 Xenia Avenue South
Suite 220
Golden Valley, 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 to the interpretation, construction,
validity and enforcement of this Agreement shall be governed by the laws of the State of
Minnesota.
B. Entire A2reement. This Agreement contains the entire agreement of the
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. 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 bfthis Agreement shall be
deemed effective unless made in writing and signed by the parties hereto.
D. No Waiver. No term or condition ofthis Agreement shall be 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 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. Assi2nment. 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
number of counterparts, and such counterparts executed and delivered, each as an original,
. shall constitute but one and the same instrument.
G. Severability. To the extent any provision ofthis Agreement shall be invalid
.or unenforceable, it shall be considered deleted herefrom 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 and paragraph headings herein are for
convenience of reference only and shall not affect the 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 itself or
though its agent prepared the same, it being agreed that the agents of both parties have
participated in the preparation hereof.
I. Bindin2 Effect. This Agreement shall be binding on and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
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. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
CITYOF HOPKINS
By
Its
THE LUTHER COMPANY
LIMITED PARTNERSHIP
By
Its
HOPKINS REAL ESTATE LLC
.
By
Its
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EXHIBIT A
GRANT AGREEMENT
GP:1567261 v2
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