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CR 06-101 Environmental Remediation Grant Agreements-Excelsior Crossings C\TY OF m August 31,2006 HOPKINS Council Report 2006-101 ENVIRONMENTAL REMEDIATION GRANT AGREEMENTS - EXCELSIOR CROSSINGS ProDosed Action Staff recommends adoption of the following motion: Move to approve the followino aoreements and authorize their execution subiect to the execution of the sub-recipient aareements by Opus Corporation: . Livable Communities Act Tax Base Revitalization Account aareement between the City of Hopkins and Metropolitan Council . Contamination Cleanup Proaram aoreement between the City of Hopkins and DEED . Sub-recipient Aoreements between the City of Hopkins and Opus Northwest. LLC With this motion it is understood that staff can make minor modifications that do not affect the overall intent of the agreement. Overvi w At the request of Opus Corporation, the City of Hopkins applied for and received a grant award of $237,800 through the Metropolitan Council Tax Base Revitalization Account and a grant award of $952,000 through the Department of Employment and Economic Development (DEED) Contamination Cleanup Program. The grant funds will be used for investigation, soil remediation, and asbestos and lead-based paint abatement on the former SUPERVALU North Annex property. The clean up will allow for the site to be redeveloped into the Excelsior Crossings office development. The grant agreements detail accounting and record keeping requirements, disbursement procedures, reporting and other miscellaneous items. As a condition of receiving the grant funds, staff is recommending Opus Corporation be required to execute sub-recipient agreements which obligates them to fulfill all the obligations of the grant agreements. Primary Issues to Consider What is the impact of the agreements on the City of Hopkins? SUDDortina Information Metropolitan Council Livable Communities Act Tax Base Revitalization Account Agreement DEED Contamination Cleanup Grant Agreement Sub-recipient Agreements Kersten Elverum, Housing & Development Coordinator Financial Impact: $ 0 Budgeted: YfN Related Documents (CIP, ERP, etc.): Notes: Source: Excelsior Crossings Grant Agreements Council Report 2006-101 Page 2 Analvsis of Issues What is the impact of the agreements on the City of Hopkins? The major obligations of the grant agreements will be passed on to Opus Corporation through the subrecipient agreements. Opus will also be required to indemnify the City of Hopkins of all liability and reimburse the City of all out-of-pocket expenses incurred. Opus has requested some changes to the subrecipient agreements that are not incorporated into the attached draft agreement. If City staff and legal counsel accept the changes a revised agreement will be provided prior to Council action. Alt rnatives The City Council has the following options regarding the proposed action: Authorize the execution of the documents as recommended by staff Continue the item for more information Elect not to execute the grant agreements TAX BASE REVITALIZATION ACCOUNT GRANTEE: City of Hopkins GRANT NO. SG006-076- PROJECT: Excelsior Crossing GRANT AMOUNT: $237,800.00 FUNDING CYCLE: Spring 2006 COUNCIL ACTION: June 28, 2006 END DATE: June 30, 2008 METROPOLITAN LIVABLE COMMUNITIES ACT GRANT AGREEMENT THIS GRANT AGREEMENT ("Agreement") is Inade and entered into by the Metropolitan Council ("Council") and the Municipality or Development Authority identified above as "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 Cormnunities Act and the policies of the Council's Metropolitan Development Guide; 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 or a Development Authority as defined in Minnesota Statutes section 473.252, subdivisions 1 and la; and WHEREAS, the Grantee seeks funding in connection with an application for Tax Base Revitalization Account funds submitted in response to the Council's notice of availability of grant funds for the "Funding Cycle" identified above and will use the grant funds made available under this Agreement to help fund the project identified in the application; and WHEREAS, the Council awarded Tax Base Revitalization Account grant funds to the Grantee subject to any terms, conditions or clarifications stated in its Council Action, and with the under- standing that the proj ect identified in the 'application will proceed to completion in a timely manner and all grant funds will be expended prior to the "End Date" identified above. NOW THEREFORE, in reliance on the above statements and in consideration of the mutual promises and covenants contained in this Agreement, the Grantee and the Council agree as follows: I. DEFINITIONS 1.01 Defmition of Terms. The terms defined in this paragraph have the meanings given them in this paragraph unless otherwise provided or indicated by the context. Page 1 019 Pages m TAX BASE REVITALIZATION ACCOUNT (a) "Cleanup Costs" or "Costs" means: (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. (2) For asbestos contmnination, the cost of ilnplelnenting a project-specific asbestos project plan for the Site and performing asbestos-related work 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 Connnissioner of Health related to asbestos abatelnent and asbestos management activity, and Ineeting the federal Asbestos Hazard Emergency Response Act ("AHERA") standards for asbestos. (3) For petroleum contamination, the cost of implelnenting a corrective action plan for the Site approved by the Minnesota Pollution Control Agency under Minnesota Statutes chapter 115C. (4) For lead abatelnent, the cost of lead abatelnent work performed by certified contractors consistent with all applicable federal and state laws, rules and standards governing lead abatement or regulated lead work on residential or commercial properties. (b) "Council Action" means the action or decision of the governing body of the Metropolitan Council, on the meeting date identified at Page 1 of this Agreement, by which the Grantee was awarded Tax Base Revitalization Account grant funds. ( c) "Development Authority" means a statutory or home rule charter city, a housing and redevelop- ment authority, an economic development authority, or a port authority in the 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 Housing Incentives Program under Minnesota Statutes section 473.254, or a county in the metropolitan area as defined by Minnesota Statutes section 473.121, subdivision 2. ( e) "Participating Municipality" Ineans a statutory or home rule charter city or town that has elected to participate in the Local Housing Incentive Account program and negotiated affordable and life-cycle housing goals for the Municipality pursuant to Minnesota Statutes section 473.254. (f) "Project Costs" means all costs as defined in Minnesota Statutes section 116J.552, subdivision 7. (g) "Site" means the polluted land proposed by the Grantee to b.e cleaned up and located both within the metropolitan area and within a Participating Municipality. II. GRANT FUNDS 2.01 Total Grant Amount. The Council will grant to the Grantee the "Grant Amount" identified at Page 1 of this Agreement which shall be funds from the Tax Base Revitalization Account of the Metropolitan Livable Communities Fund. Notwithstanding any other provision of this Agreement, the Grantee understands and agrees that any reduction or termination of Tax Base Revitalization Page 2 019 Pages {;51 TAX BASE REVITALIZATION ACCOUNT Account funds made available to the Council may result in a like reduction in the Grant Amount made available to the Grantee. 2.02 Authorized Use of Grant Funds. The Grant Amount made available to the Grantee under this Agreement shall be used only for Cleanup Costs for the cleanup of the Site described in the application for Tax Base Revitalization Account funds. A project sUlTIlnary that identifies eligible uses of the grant funds as approved by the Council is attached to and incorporated into this Agreement as Attacmnent A. Grant funds must be used for cleanup of the Site which must be located in a Participating Municipality. If consistent with the application and subject to the limitations in Minnesota Statutes section 116J .556, the Grantee Inay use the grant funds to provide a portion of the local Inatch requirelnent for Proj ect Costs that qualify for a grant under Minnesota Statutes sections 116J.551 to 116J.557. Grant funds Inust be used for costs directly associated with the specific pro-posed activities for which the grant funds were awarded and shall not be used for "soft costs" such as: administrative overhead; travel expenses; legal fees; local pennits, licenses or authorization fees; costs associated with preparing grant proposals or applications; operating expenses; planning costs, including comprehensive planning costs; and prorated lease and salary costs. Grant funds may not be used for costs of activities that occurred prior to the grant award, unless the pre-award costs were for investi-gation and cleanup work that occurred within 180 days of the Funding Cycle application due date and are identified in Attacmnent A. The Council shall bear no responsibility for cost overruns which may be incurred by the Grantee or others in the implelnentation or performance of the project activities. The Grantee agrees to comply with any "business subsidy" requirelnents of Minnesota Statutes sections 116J.993 to 116J.995 that apply to the Grantee's expenditures or uses of the grant funds. 2.03 Eminent Domain Restrictions. On January 25, 2006 the Council adopted a policy that restricted the use of LeA grant funds on projects when eminent dOlnain authority was used to acquire private property for "economic development" purposes in connection with the projects. The Council's policy defined the tenn "economic development" for LCA progrmn purposes and covers the time period from January 25, 2006 to June 28, 2006. On June 28, 2006 the Council adopted a revised eminent domain policy that is consistent with the statutory defInitions and restrictions contained in Minnesota Statutes chapter 117 as amended (effective May 20, 2006) during the 2006 legislative session. The revised policy applies to LCA grant awards and grant agreements made on or after June 28, 2006. The Council's January 25, 2006 and June 28, 2006 eminent domain policies are available online at: http://www.metrocouncil.org/services/livcomm/EminentDomainPolicy.htm. (a) If a notice of petition was served between January 25,2006 and May 20,2006 in connection with the Grantee's project (or any component of the project) for which grant funds were awarded, the grant funds may not be used to fund or support the project unless the project: (1) would have been eligible under the Council's January 25, 2006 policy; or (2) qualifies for an exemption under Minnesota Statutes section 117.012, subdivision 3 or 2006 Minnesota Laws chapter 214, section 22, clauses (b) through ( e). (b) If a notice of petition was served on or after May 20, 2006 in connection with the Grantee's project (or any component of the project) for which grant funds were awarded, the grant funds may not be used to fund or support the project unless the project qualifies for an exemption under Minnesota Statutes section 117.012, subdivision 3 or 2006 Minnesota Laws chapter 214, section 22, clauses (b) through (e). Page 3 of9 Pages VA TAX BASE REVITALIZATION ACCOUNT 2.04 Loss of Grant Funds. The Grantee agrees to remit to the Council in a prompt manner: any unspent grant funds, including any grant funds that are not expended prior to the End Date identified at Page 1 of this Agreement; any grant funds that are not used for the authorized purposes; and any interest earnings described in Paragraph 2.06 that are not used for the purposes of implementing the project activities described in Attacmnent A. For the purposes of this Agreelnent, grant funds are "expended" prior to the End Date if the Grantee pays or is obligated to pay for expenses of eligible project activities that occurred prior to the End Date and the eligible expenses were incurred prior to the End Date. Unspent or unused grant funds and other funds remitted to the Council shall revert to the Council's Tax Base Revitalization Account for distribution through application processes in future Funding Cycles. 2.05 Payment Request Forms and Disbursements. The Council will disburse grant funds in response to written disburselnent requests sublnitted by the Grantee and reviewed and approved by the Council's authorized agent. Written disburselnent requests shall be Inade using payment request forms, the fonn and content of which will be determined by the Council. Paytnent request and other reporting forms are available online at: http://www.metrocouncil.org/services/livcomm/LCAresources.htm. Disbursements prior to the performance of a project activity will be subject to terms and conditions mutually agreed to by the Council's authorized agent and the Grantee. Subj ect to verification of each payment request form 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 properly completed payment request fonn. 2.06 Interest Earnings. If the Grantee earns any interest or other income froln the grant funds received from the Council under this Agreement, the Grantee will use the interest earnings or income only for the purposes of itnplementing the project activities described in Attacmnent A. 2.07 Effect of Grant. Issuance of this grant neither implies any Council responsibility for the contamination at the Site nor imposes any obligation on the Council to participate in the cleanup of the Site contamination or in the Cleanup Costs beyond the Grant Amount of this Agreement. 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 termination 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 proj ect activities described in Attachment A or six (6) years following the expenditure of the grant funds, whichever occurs earlier. 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 or six (6) years following the expenditure of the grant funds, whichever occurs earlier. Pursuant to Minnesota Statutes section 16C.05, subdivision 5, the books, records, documents and accounting procedures and practices of the Grantee that are relevant to this Agreement are subject to examination by the Council and either the Legislative Auditor or the State Auditor, as appropriate, for a minimum of six (6) years. Page 4 019 Pages n1 TAX BASE REVITALIZATION ACCOUNT 3.03 Report Requirements. The Grantee will report to the Council on the status of the project activities described in Attachment A and the expenditures of the grant funds. Submission of properly completed pa)'lnent request forms required under Paragraph 2.05 will constitute periodic status reports. The Grantee also must complete and submit to the Council within sixty (60) days after the termination or expiration of this Agreelnent a final monitoring and evaluation report, the form and content of which report will be determined by the Council. In addition to the periodic status reports and the finallnonitoring and evaluation report, the Grantee must submit to the Council by March 1 of the year following the expiration of this Agreelnent and by March 1 of each of the succeeding three (3) years, an aImual written report that includes information about redevelopment activities, net tax capacity of the Site, and jobs resulting from Site cleanup. If the project activities described in Attachment A are not completed when this Agreement expires, the Grantee must continue to submit the annual written report described in the preceding sentence: (a) until the project activities are cOlnpleted and for three (3) years after the project activities are completed; or (b) for five (5) years following the expiration of this Agreelnent, whichever time period is shorter. The form and content of the annual written report will be detennined by the Council. The reporting require- ments of Paragraphs 3.03 and 3.04 shall survive the tennination or expiration of this Agreement. 3.04 Certificate of Completion. Upon completion of the 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 from the Agency indicating that the approved voluntary response action plan for the Site has been implemented to the satisfaction of the Agency and that the Agency is issuing a determination that no further action is required under Minnesota Statutes sections 115B.Ol to 115B.08 to address the identified release; or (b) for asbestos contamination, a copy of a statement from the Grantee's licensed asbestos abate- ment contractor that the project-specific asbestos project plan and asbestos-related work for the Site have been completed in accordance with the rules of the Minnesota Department of Health; or ( c) for petroleum contamination, a copy of a site closure letter issued by the Minnesota Pollution Control Agency pursuant to Minnesota Statutes chapter 115C; or (d) for lead abatement or regulated lead work, a copy of a statement or other documentation from the certified contractor that the lead abatement or regulated lead work at the Site has been completed in accordance with applicable federal.and state laws, rules and standards governing lead abatement. IV. RECOVERY AND REPAYMENT 4.01 Recovery of Funds. If the Grantee recovers funds pursuant to an action under Minnesota Statutes section 115B.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 to the Council the Grantee's right to recover the funds described in Paragraph 4.01, shall prepare and submit a certification of the Project Costs incurred, and shall cooperate in any cost recovery action brought by the Council. Page 5 of9 Pages C1 TAX BASE REVITALIZATION ACCOUNT 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 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 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 reiInburse the Grantee, the Council, or any other nonresponsible party who contributed funds for cleanup of the Site in proportion to their respective paytnents for response costs. 4.05 Survival of Recovery and Repayment Provisions. The prOVISIons of Paragraphs 4.01 through 4.04 shall survive the expiration or tennination of this Agreement. v. AGREEMENT TERM 5.01 Term. This AgreeInent is effective upon execution of the AgreeJ?ent by the Council. Unless terminated pursuant to Paragraph 5.02, this Agreement tenninates on the End Date identified at Page 1 of this AgreeInent and ALL GRANT FUNDS NOT EXPENDED BY THE GRANTEE PRIOR TO THE END DATE SHALL REVERT TO THE COUNCIL. 5.02 Termination. This Agreement may be terminated by the Council for cause at any time upon fourteen (14) calendar days' written notice to the Grantee. Cause shall mean a material breach of this Agreement and any amendments of this AgreeInent. If this Agreement is terminated prior to the End Date, the Grantee shall receive payment on a pro rata basis for eligible project activities described in Attachment A that have been completed prior to the tennination. 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 as a result of later audits or corrections. If the Council determines 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 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. 5.03 Amendments and Extensions. The Council and the Grantee may amend this Agreement by mutual agreement. Amendments or extensions of this Agreement shall be effective only on the execution of written amendments signed by authorized representatives of the Council and the Grantee. The End Date may be extended beyond the original End Date identified at Page 1 of this Agreement if, AT LEAST THIRTY (30) CALENDAR DAYS PRIOR TO THE END DATE, the Grantee's authorized representative submits a written extension request that: (a) states the reason for the extension request; (b) identifies a new completion date, which shall not exceed one year beyond the original End Date; and (c) "describes in reasonable detail any proposed changes to the project activities and budget. THE END DATE MAY BE EXTENDED ONLY ONCE. THE PERIOD OF THE ONE-TIME EXTENSION SHALL NOT EXCEED ONE (1) YEAR BEYOND THE ORIGINAL END DATE IDENTIFIED AT PAGE 1 OF TillS AGREEMENT. Any additional extension requests from the Grantee must be approved by the governing body of the Metropolitan Council. Page 6 of9 Pages it TAX BASE REVITALIZATION ACCOUNT 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, melnbership or activity in a local civil rights cOlnlnission, disability, sexual orientation or age and will take affirmative action to insure applicants and employees are treated equally with respect to all aspects of employment, rates of pay and other fonns of compensation, and selection for training. 6.02 Conflict of Interest. The Inelnbers, officers and elnployees of the Grantee shall comply with all applicable state statutory and regulatory conflict of interest laws and provisions. 6.03 Liability. Subject to the litnitations provided in Minnesota Statutes chapter 466, to the fullest extent permitted by law, the Grantee shall defend, indemnify and hold hannless the Council and its Inelnbers, employees and agents from and against all claims, damages, losses and expenses, including but not lilnited to attorneys' fees, arising out of or resulting from the conduct or implementation of the project activities funded by this grant, except to the extent the claims, damages, losses and expenses arise from the Council's own negligence. Claitns included in this indelnnification include, without litnitation, any claims asserted pursuant to the Minnesota Environ-lnental Response and Liability Act (MERLA), Minnesota Statutes chapter 115B, the federal Comprehensive Environ- mental Response, Compensation, and Liability Act of 1980 (CERCLA) as atnended, United States Code, title 42, sections 9601 et seq., and the federal Resource Conservation and Recovery Act of 1976 (RCRA) as amended, United States Code, title 42, 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 Council of any immunities or limits on 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 Council in promotional materials, press releases, reports and publications relating to the project activities described in Attachment A which are funded in whole or in 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 acknowledgment 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 funding partners or entities providing financial support for the project. 6.05 Permits, Bonds and Approvals. The Council assumes no responsibility for obtaining any applicable local, state or federal licenses, permits, bonds, authorizations or approvals necessary to perform or complete the project activities described in Attachment A. 6.06 Subgrantees, Contractors and Subcontractors~ The Grantee shall include in any sub grant, contract or subcontract for project activities appropriate provisions to ensure sub grantee, contractor and subcontractor compliance with all applicable state and federal laws and this Agreement. Along with such provisions, the Grantee shall require that contractors and subcontractors performing work Page 7019 Pages c TAX BASE REVITALIZATION ACCOUNT covered by this grant obtain all required permits, licenses and certifications, and comply with all applicable state and federal Occupational Safety and Health Act regulations, especially the federal Hazardous Waste Operations and Emergency Response standards under Code of Federal Regulations, title 29, sections 1910.120 and 1926.65. 6.07 Stormwater Discharge and Water Management Plan Requirements. If any grant funds are used for urban site redevelopment, the Grantee shall at such redevelopment site Ineet or require to be met all applicable requirelnents of: (a) federal and state laws relating to stormwater discharges including, without litnitation, any applicable requirements of Code of Federal Regulations, title 40, parts 122 and 123; and (b) the Council's 2030 Water Resources Management Policy Plan and the local water management plan for the jurisdiction within which the redeveloPlnent site is located. 6.08 Authorized Agent. Payment request forms, written reports and correspondence submitted to the Council pursuant to this Agreelnent shall be directed to: Metropolitan Council Attn: LCA Grants Administration 390 Robert Street North Saint Paul, Minnesota 55101-1805 6.09 Warranty of Legal Capacity. The individuals signing this Agreement on behalf of the Grantee and on behalf of the Council represent and warrant on the Grantee's and the Council's behalf respectively that the individuals are duly authorized to execute this Agreelnent on the Grantee's and the Council's behalf respectively and that this Agreelnent constitutes the Grantee's and the Council'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 on the date of final execution by the Council. GRANTEE METROPOLITAN COUNCIL By By Title Director, Housing and Livable Communities Date Date By Title Date SG006076TBRA 07/06 Page 8 of9 Pages rJ TAX BASE REVITALIZATION ACCOUNT ATTACHMENT A APPLICATION FOR TAX BASE REVITALIZATION ACCOUNT FUNDS This attacmnent comprises this page and the succeeding page(s) which contain(s) a sUlnmary of the project identified in the application for Tax Base Revitalization Account grant funds submitted in response to the Council's notice of availability of Tax Base Revitalization Account grant funds for the Funding Cycle identified at Page 1 of this Agreelnent. The sumtnary reflects the proposed project for which the Grantee was awarded grant funds by the Council Action, and may reflect changes in project funding sources, changes in funding atnounts, or Ininor changes in the proposed project that occurred subsequent to application sublnission. The application is incorporated into this Agreement by reference and is made a part of this Agreelnent as follows. If the application or any provision in the application conflicts with or is inconsistent with the Council Action, other provisions of this Agreement, or the proj ect summary contained in this Attachment A, the terms, descriptions and dollar amounts reflected in the Council Action or contained in this Agreement and the project summary shall prevail. For the purposes of resolving conflicts or inconsistencies, the order of precedence is: (1) the Council Action; (2) this Agreelnent; (3) the project sUlnmary; and (4) the grant application. Page 9 of9 Pages t:' -- \ t r;;' Excelsior Crossing - Hopkins (78 points) 9300 Excelsior (Hennepin County) Council District #3 - Mary Hill Smith Estimated clean up cost: $1,982,327 Recommended TBRA funding: $237,800 TBRA funding request: $237,879 (12%); DEED $1,358,046 (750/0); Hennepin County $128,700 (6%) Use of TBRA funds: Soil remediation and abatement of asbestos and lead-based paint in the building prior to demolition. End use: Three office buildings and 'a small retail building - 685,000 total square feet of office space (small retail building with 5,000 square feet.) In one building, hotel space may be substituted for some of the office space. 32-acre site $100,000,000 investment $2.9 million increase in annual property taxes 2700 new full-time jobs (99% living wage) and 14 part-time jobs (0% living wage) The Excelsior Crossing project is located at 9300 Excelsior Avenue in Hopkins. The North Annex building was constructed by Red Owl for use as a grocery distribution warehouse, and was later owned by SuperValu. TBRA funds ($237,800) are to be used for pre-demolition soil remediation and abatement of asbestos and lead-based paint in buildings on this site. The end use is to be three office buildings (685,000 sq.ft.) and a small retail building (5,000 sq. ft.) The $100,000,000 investment is expected to increase annual property taxes by $2.9 million and lead to 2,700 new jobs (99% living wage) and 14 part-time jobs at the site. (J STATE OF MINNESOTA DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT BUSINESS AND COMMUNITY DEVELOPMENT DIVISION Contamination Cleanup Program Grant Agreement CCGP-06-0018-Z-FY06 This Agreement is made on June 23,2006 between the State of Minnesota, acting through the Department of Employment and Economic Development (hereinafter the Grantor) and the City of Hopkins (hereinafter the Grantee). The Grantor has been allocated funds by the Minnesota Legislature to the contaminated site cleanup and development account in the general fund (M.S. 116J.551) and from the Petrofund account to make grants pursuant to M.S. 11(jJ.554. The Grantee has made application to the Grantor for a Contamination Cleanup Grant described in Grantee's "APPLICATION" for the Excelsior Crossing Site, which is incorporated into this agreement by reference. In consideration of mutual promises set forth below, the parties agree as follows: The Grantor shall grant to the Grantee the total sum ofNlNE HUNDRED FIFTY TWO THOUSAND DOLLARS AND NO CENTS ($952,000.00), which are state funds appropriated by the legislature of the State of Minnesota. The breakdown of the total grant amount is as, follows: $952,000, Petro Fund, Fund 150, Org 1404, App 100. Funds made available pursuant to the Agreement shall be used as "PROJECT COSTS" defined in M.S. 116J.552, subd. 7, for purposes specified therein and incorporated into the Agreement as "PROJECT" and specified under "SPECIAL CONDITI~NS". Grantee agrees to complete the Project in accordance with the approved budget and within the time frames specified in the Application and Agreement. Any material change in the scope of the Proj ect, the Budget or the Completion Date must be approved in writing by the Grantor. Funds made available pursuant to this agreement shall be used only for expenses incurred in performing and accomplishing such purposes and activities during the grant period described above. Notwithstanding all other provisions of this agreement, it is understood that any reduction or termination of state funds provided to the Grantor may result in a like reduction to the Grantee.. Where provisions of the Grantee's application are inconsistent with other provisions of this Agreement, the other provisions of this Agreement shall take precedence over the provisions of the Application. current version: 03/31/00 1 GENERAL CONDITIONS Accounting For all expenditures of funds made pursuant to this Agreement, the Grantee shall keep financial records including properly executed contracts, invoices, and other documents sufficient to evidence in proper detail the nature and propriety of the expenditures. Accounting methods shall be in accordance with generally accepted accounting principals. Term The Grantee shall perform and accomplish such purposes and activities specified herein during the period of June 23, 2006 to June 30, 2009. In order to ensure that all funds are drawn prior to the grant term end date, all payment requests must be received at least 30 days prior to the grant term end date. Payment/Disbursement Schedule Grantor shall disburse funds to the Grantee pursuant to this Agreement, based upon a payment request provided by the Grantor, submitted by the Grantee and reviewed and approved by the Grantor. Payment requests must be accompanied by supporting invoices that relate to activities in the approv~d Cleanup Budget. The amount of grant funds requested by the Grantee cannot exceed 75% of the total approved cleanup costs incurred by the Grantee as supported by invoices. Reporting Grantee shall submit to the Grantor a report on the distribution of funds and the progress of the Project covered from the date of the grant award through June 30 of each year. The reports must be received by DEED no later than July 25 of each year. The report shall identify specific project goals listed in the application and quantitatively and qualitatively measure the progress of such goals. The report shall include data collected on the Project for use by the Department of Employment and Economic Development. Reporting forms will be provided by the Grantor. Provisions for Contracts and Subgrants The Grantee shall include in any contract and subgrant, in addition to provisions that define a sound and complete agreement, such provisions that require contractor and sub grantee compliance with applicable state and federal laws. Along with such provisions, the Grantee shall require that contractors performing work covered by this grant be in compliance with all applicable OSHA regulations, especially the federal Hazardous Waste Operations and Emergency Response Standards (29CFR 1910.120 and 29CFR 1926.65). current version: 03/31/00 2 Program Income Program income generated from grant-funded activities on hand at the end of the grant period must be returned to the State unless a reuse of the income has been approved by the Grantor. Termination and Cancellation Termination by the State. The Grantor or conunissioner of Administration may cancel this agreement at any time, with or without cause, upon 30 days' written notice to the Grantee. Upon termination, the Grantee will be entitled to payment, determined on a pro rata basis, for services satisfactorily performed. If the Grantor finds that there has been a failure to comply with the provisions of this agreement, that reasonable progress has not been made, or that the purposes for which the funds were granted have not been or will not be fulfilled, the Grantor may take action to protect the interests of the State of Minnesota, including the refusal to disburse additional funds and requiring the return of all or part of the funds already disbursed. Termination for Insufficient Funding. The Grantor may immediately terminate this agreement ifit does not obtain funding from the Minnesota Legislature, or other funding source; or if funding cannot be continued at a level sufficient to allow for the payment of the services covered here. Termination must be by written or fax notice to the Grantee. The Grantor is not obligated to pay for any services that are provided after notice and effective date of termination. However, the Grantee will be entitled to payment, determined on a pro rata basis, for services satisfactorily performed to the extent that funds are available. The Grantor will not be assessed any penalty if the agreement is terminated because of the decision of the Minnesota Legislature, or other funding source, not to appropriate funds. The Grantor must provide the Grantee notice of the lack of funding within a reasonable time of the Grantor receiving that notice. Affirmative Action A Public Entity that receives State money for any reason is encouraged to prepare and implement an affirmative action plan for the employment of minority persons, women, and the disabled and submit the plan to the Commissioner of Human Rights. Audit and Inspection The Grantee shall furnish the Grantor with an acceptable independent audit covering each grant year in which grant disbursements were made; and prepared in compliance with generally recognized audit standards. The audit shall include a schedule of revenue and expenditures of these grant funds. The audit must be submitted within 30 days after the completion of the audit, but not later than one year after the end of the audit period. Accounts and records related to the funds provided under this agreement shall be accessible to authorized representatives of the Grantor for purposes of examination and audit. In addition, the Grantee will give the State of Minnesota, Department of Employment and Economic Development, the Legislative Auditor, and State Auditor's Office, through any authorized representatives, access to and the right to examine all records, books, papers, and documents related to the grant, for a minimum of six years from the end of the term of this Grant Contract. current version: 03/31/00 3 Liability Grantee agrees to indemnify and save and hold Grantor, its agents and employees harmless from any and all claims or causes of action arising from the performance of the Grant by Grantee or Grantee's agents or employee. This clause shall not be construed to bar any legal remedies Grantee may have for the Grantor's failure to fulfill its obligations pursuant to this Agreement. Amendments Any amendments to this agreement shall be in writing, and shall be executed by either the same parties who executed the original agreement, their successors in office, or by those parties authorized by the Grantee through a formal resolution of its governing body. Antitrust The Grantee and Subgrantees hereby assign to the State of Minnesota any and all claims for overcharges for goods and/or services provided in connection with this contract resulting from antitrust violations which arise under the antitrust laws of the United States and the antitrust laws of the State of Minnesota. Required Resolution and Certification The Grantee shall attach hereto, prior to submission, a resolution by the appropriate governing body, which legally authorizes the execution of this agreement on behalf of the Grantee. Successors and Assignees This agreement shall be binding upon any successors or assignees of the parties. Other Provisions The Grantee shall comply with the Minnesota Government Data Practices Act, Chapter 13 and the Conflict of Interest provisions of Minnesota Statutes Sections 471.87 - 471.88. The Grantee shall comply with the Minnesota Business Subsidy Law, Minnesota Statutes 116J.993 - 116J.995. (The rest of this page is intentionally left blank.) current version: 03/31/00 4 . SPECIAL CONDITIONS The following activities and costs are based on a budget submitted by the Grantee. Modifications must be approved in writing by the Grantor. Approved Budget for the Excelsior Crossing Site: Approved Proiect Costs Investigation Costs: Phase I ESA Phase II ESA VRAP Development Amount $17,200 $144,100 $14,700 Cleanup Costs Soils (Category 1) Soils (Category 2) VRAP Implementation and Oversight $732,000 $885,600 $78,000 Proj ect Costs Demolition Well abandonment $109,227 $1,500 TOTAL $1,982,327 DEED Local Match $952,000 $1,030,327 (The rest of this page is intentionally left blank.) current version: 03/31/00 5 The Grantor and Grantee acknowledge their assent to this agreement and agree to be bound by its terms through their signatures entered below. GRANTEE: I have read and I agree to all of the above provisions of this agreement. STATE OF MINNESOTA by and through the Department of Employment and Economic Development By By Title Title Deputy Commissioner Date Date By ENCUl\1:BERED: Department of Employment and Economic Development Title Date By Date Encumbered (Individual signing certified that funds have been encumbered as required by Minnesota Statutes 16A.) Grantee: City of Hopkins Grant Agreement #: CCGP-06-0018-Z-FY06 Minnesota Tax ID: 8022882 Federal Tax ill: 41-6005247 current version: 03/31/00 6 SUB-RECIPIENT AGREEMENT THIS AGREEMENT ~ made on or as of the day of ! 2006, 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 Opus Northwest, L.L.C., a limited liability company under the laws of the State of Delaware (hereinafter referred to as the "Redeveloper"), having its principal office at 10350 Bren Road West, Minnetonka, MN 55343. RECITALS: A. Redeveloper has acquired certain real property located within the City and legally described in Exhibit A attached hereto (which real property is referred to herein as the "Redevelopment Property"). B. Redeveloper intends to redevelop the Redevelopment Property in accordance with a Development Plan approved by the City. c. Redeveloper's redevelopment of the Redevelopment Property will require and include the investigation, assessment, removal, handling or remediation of contaminated soils and other materials located on the Redevelopment Property, and abatement of asbestos and lead-based paint from buildings located on the Redevelopment Property which are to be demolished as part of the redevelopment thereof. D. At the request of Redeveloper, the City applied for grant funds from the Tax Base Revitalization Account of the Metropolitan Livable Communities Fund administered by the Metropolitan Council ("Met Council") to provide funding for the investigation, response and other remediation actions described in the Application and Grant Agreement identified in Recital Paragraph E (which investigation, response and remediation actions are referred to herein as the "Work"). E. Pursuant to an Application to the Met Council (the "Application"), the City has or shall be awarded a Tax Base Revitalization Account Grant (the "Grant") in the amount of $237,800.00, which Grant will be disbursed by the Met Council to the City pursuant to the terms and conditions of the Metropolitan Livable Communities Act Grant Agreement attached hereto as Exhibit B (the "Grant Agreement"). A copy of the Application is attached to the Grant Agreement. F. Redeveloper has agreed to pay any amount by which the cost of the Work exceeds the Grant. - 1 - c:\Hopciv\Opus Met Council Subrecipient Agmt.081606 ~~'--~~~'--"-~'"~----~~I"'''---'-'-'''--''--~~~'-''''~-"'''''""--'-'~r'~~'~"'-"'--'-----'--'-"''''''-----''''''---''''''.................--...-..-.,.-........-......-...----.-. --.-....-. ........--.-. G. 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 Recitals 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. Accuracv of Recitals. The parties agree that the above Recitals are true and accurate and are incorporated in and made a part of this Agreement. 2. Disbursement of Grant Funds. If and to the extent that the City receives funds pursuant to the Grant Agreement, the City shall disburse them to or for the benefit of Redeveloper solely for the uses and purposes for which such funds were disbursed by the Met Council, subject to the terms and conditions of this Agreement and the Grant Agreement. The City's sole obligation under this Agreement shall be to disburse to Redeveloper any funds actually received by the City pursuant to 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 incurred by 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 steps necessary to assure such use of said funds through its contracts with the contractors that will perform the work. 4. Redeveloper Oblieations. The Grant Agreement is incorporated in and made a part of this Agreement in its entirety. Redeveloper does hereby assume and agree to perform and observe all of the covenants, obligations, agreements and conditions to be performed or observed by the City under the Grant Agreement. Without limiting the generality of the foregoing, Redeveloper specifically agrees as follows: A. Redeveloper shall expeditiously and diligently commence -and pursue the Work within the time frames specified in the Application and Grant Agreement. Redeveloper shall immediately notify the City in the event of any change in the prospects for the timely completion of the Work. B. All contracts and subcontracts for performance of the Work shall comply with the provisions of the Grant Agreement and, specifically, paragraph 6.06 thereof. 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 of the Work fully in compliance with the terms and conditions of the Grant Agreement and in a good and workmanlike manner and in accordance with applicable state and federal laws and -2- c:\Hopciv\Opus Met Council Subrecipient Agmt.081606 -,""--'~.,,- _.....,.,._......._~_..._......~......--..'I'J"".~r-'"""""'..-r-....................""-_..,---_.............~_........-.-----~-............<O'-....-.............-~~....-.............-.<.,T....T"'\....t~~-...~,......,.lI"-.-.,..............,.-.......................-,-.............." ..................................l..........,.w".....n- .......,,~.........._......................................I.......,...............,........._'_...v........:'..........................". regulations, including, without limitation, applicable Minnesota Pollution Control Agency ("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 the Met Council, pursuant to the provisions of the Grant Agreement, including, but not limited to, Paragraphs 2.03 and 5.02 thereof, demands and is entitled to return of Grant funds already disbursed, Redeveloper shall within ten (lO) days of demand by the City pay the City the amount demanded by the Met Council. D. Redeveloper shall comply with all accounting, reporting, record keeping and audit requirements of the Grant Agreement and 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, Met Council 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. 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 or such longer period of time as may be required by the Grant Agreement. Upon request, Redeveloper shall deliver to the City accurate and complete copies of all books, accounts, records, contracts and other documents related to the Work and required to be maintained pursuant to this Agreement and the Grant Agreement. The documents to be delivered to the City shall include, but are not limited to, all results of tests and inspections performed as part of the Work and all reports, summaries and assessments related to or describing the Work or results thereof. All documents delivered to the City pursuant to this Agreement shall be public information, and may be retained by the City. E. Redeveloper shall prepare and timely submit to the City and Met Council all reports on Grant fund distribution and Work progress as required by the Orant Agreement. The City shall not be obligated to make applications for disbursement to the Met Council under the Grant Agreement until and unless Redeveloper has provided all required documents and information to the City. F. The City's authorization of the submission of the Application to the Met Council and the City's approval and execution of the Grant Agreement was done in reliance upon and conditioned on the understanding that the City would not incur any financial obligations and that Redeveloper shall be responsible for the payment of all costs of the Work in excess of the Grant, including, without limitation, any required local contribution or local match required under the Grant Agreement or any other agreement, application or program related to the Work or Redeveloper's activities on the ~ 3 - c:\Hopciv\Opus Met Council Subrecipient Agmt.081606 ~~--- _..~_._~,._~_._----~--'"t.~_.__....~_.-.............--~_.~.--._-._----".---r~~-~.~_....__.-.._."._~.--.------~--.-.t~...-_......."..-.~----..-.--------,--_.-.-......._._._..._. Redevelopment Property. Redeveloper agrees to pay all such costs identified in the preceding sentence and further agrees that, if the City is required to actually pay any amount in cOlmection with the Grant or the performance of the Work, Redeveloper shall within ten (10) days after request by the City, and as a condition of the City's payment of such amounts, payor reimburse the City for such amounts. G. Redeveloper shall provide all certifications at the times the same are required to be provided under the Grant Agreement. H. 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: General Aggregate Personal and Advertising Injury Each Occurrence - Combined Bodily Injury and Property Damage Limits $1,000,000 $1,000,000 $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 If the contractor is based outside the State of Minnesota, coverage must apply to Minnesota laws. Statutory b. Employer's Liability. Bodily Injury by: Accident - Each accident Disease - Policy Limit Disease - Each Employee $100,000 $500,000 $100,000 4. Professional Liability - Per Claim and Aggregate $1,000,000 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 Redeveloper nor any contractor or subcontractor shall commence the Work until ..4- ~:\Hopciv\Opus Met Council Subrecipient Agmt.081606 ------------..---- ---.-----.-...-.-~"-.-I"-"-.-.--.~-~-~-~~.---.-..---.,--~--_..-...---~-..r.--'".-~.,,--.----.~.~.--...-.---~-----.----~-1----..,.-----.-------~----'-------------- ,------. ...- --- Redeveloper and any contractor or subcontractor has obtained the required proof of insurance which clearly evidences required insurance coverage. Redeveloper shall otherwise comply with any requirements of the Grant Agreement related to insurance and provide all insurance policies and coverages required thereby, all without cost to the City. The foregoing insurance coverages and requirements may be satisfied by Redeveloper or Redeveloper's contractors purchasing and maintaining in effect insurance policies and coverages complying with the requirements stated in this Paragraph 4. The foregoing insurance coverages and requirements may also be satisfied by Redeveloper or Redeveloper's contractors purchasing and maintaining in effect insurance policies and coverages pursuant to the Sub..Recipient Agreement of even date herewith between the City and Redeveloper related to the Contamination Cleanup Program Grant Agreement and providing the same coverages and limits of coverage. By entering into this Agreement, the City does not waive any statutory, common law or other immunities or limitations on the liability of the City, and the City specifically reserves all such immunities and limitations of liability. I. Redeveloper shall include in any contract, provisions that require its contractors and their subcontractors 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 Met Council, the City and the Grant Agreement, and the City shall forward the same to the Met Council in the manner and upon the schedule set forth in the Grant Agreement. Redeveloper shall submit such other documentation as the City or Met Council may require relative to costs of the Work. B. Payment requests may be submitted no more often 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 Met Council, the City shall forward the same to Redeveloper or the contractor designated by Redeveloper, provided (i) Redeveloper is not in default hereunder and (ii) there has not occurred any change - 5- c:\Hopciv\Opus Met Council Subrecipient Agmt.081606 -~'-~"-'M_~--'_.""'-_.~--'-f--'''-._._--~---'.'---"---.~.~-~_.._..---_.-..-...._^_.^-.------_. -._--~-..~-..._.- .......--.--.--, -. -.--,-....---.....- .-. ---~-....._--_. 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 Met Council and their respective officials, directors, officers, employees and agents, and their respective heirs, successors and assigns (collectively, the "Indemnified Parties") from and against any and all claims, demands, judgments, penalties, liabilities, costs, damages, liens 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. Redeveloper further acknowledges and agrees that the foregoing agreement to indemnify, defend and hold harmless the City shall include indemnification against any Liabilities of the City arising under the Grant Agreement. 7. Independent Contractor. 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 of partners or joint venturers between the City and Redeveloper or as constituting Redeveloper as the agent, representative, or employee of the City for any purpose or in any manner whatsoever. Redeveloper is to be and shall remain an independent contractor with respect to all services and activities described in this Agreement. Any and all personnel of Redeveloper or other persons while engaged in the performance of any work or services required by 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 Mirmesota on behalf of said personnel, arising out of employment or alleged employment including without limitation, claims of discrimination against Redeveloper, its officers, agents, contractors, or employees shall in no way be the responsibility of the City. Redeveloper shall defend, indemnify and hold harmless 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, Rew 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 incurred by the City (including costs and fees and expenses of the City's attorneys at the rate of $225.00 per hour) in connection with the negotiation, preparation, approval, review, execution, delivery, amendment, modification, interpretation, collection and enforcement of this Agreement, the Grant Agreement or any amendments thereto. The obligation of Redeveloper under this paragraph shall survive any termination of this Agreement. ..6- C1:\Hopciv\Opus Met Council Subrecipient Agmt081606 --~------~'-'~~~"~"''''.-T''''''''--'-_~H-~_''''''''''-'~''-'~.~-'--~'~'__'~_n--n_'~r'--~- ~_"~'n_"_~.".'_"',,""""'''n''~''~'~.._n''''''n'''~'''''__'~''_.._~~~._...,~.. -~- --....- --'-' ---- ...,......--.-.-- 9. Termination: Default: Remedies. This Agreement shall terminate if the Grant Agreement is terminated in accordance with its terms and conditions. However, the provisions of paragraph 6 of this Agreement and any other provision of this Agreement which, by its terms, impliedly or explicitly, is to survive the termination of this Agreement shall survive and be enforceable after such termination. 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 terminate its obligation to forward funds received pursuant to the Grant Agreement to Redeveloper, except that Redeveloper shall be given an opportunity to cure the extent provided for in the Grant Agreement. 10. Notices. All notices, requests and other communications hereunder shall be in writing and shall be delivered personally or by first class 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. Notices shall be deemed duly delivered for all purposes at the time of personal delivery to the representative of the City or Redeveloper named below or two business days after being deposited in the United States mail. The addresses for notices are as follows: If to the City: City of Hopkins Attention: City Manager 1010 First Street South Hopkins, MN 55343 Copy to: Jeremy S. Steiner, Esq. Steiner & Curtiss, P .A. 400 Wells Fargo Bank Building 1011 First Street South Hopkins, MN 55343 If to Redeveloper: Opus Northwest, L.L.C. 10350 Bren Road West Minnetonka, MN 55343 Attn: Vice President, Real Estate Development - David J. Menke ..7.. l::\Hopciv\Opus Met Council Subrecipient Agmt.081606 -'~.~-'~--~'-'-'~'~'--"'"~-'~".r"""""~'-'~""~-"-~"-',_...._"..,-_.~_._....._"...._.._.-..~'........._.I..--......,..,....._~..-..........-....."......-...-..."....-,..--.".-0-;-'.....-....---..-.-.......n...- ..-..~._.~ ........"..."...-...-...... Copy to: Opus Northwest, L.L.C. 10350 Bren Road West Minnetonka, MN 55343 Attn: Legal Department ~ Brad J. Osmundson 10. Miscellaneous. A. Governint! 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 Aereement. This Agreement and the exhibits hereto contain the entire agreement of the parties relating to the subject matter hereof and supersede 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 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. Assillnment. This Agreement shall not be assignable, in whole or in part, by either party without the prior written consent of the other party. F. Counternarts. 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 of this 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. .. 8 .. c.:\Hopciv\Opus Met Council Subreeipient Agmt.081606 --~~'--'--".'-~"'-~-'----~'~-T-'-'''~._''--'~-'-'~--'-'...._~~"~"--_..-.~._.-.----r~........----,.._,...'"'.,...__....-_..._.....~-,.._._"_.~..-.~..,._-~.........~.-"'--~-.._--_.._-~--.,-,_.__.._---- H. Exhibits: Captions and Headlines: Interpretation. Exhibits A and B hereto are 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. Bindinf!: Effect. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns. J. No Third-Partv Beneficiaries. With the exception of the Met Council, there are no third party beneficiaries of this Agreement, intended or otherwise. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. REDEVELOPER: CITY: OPUS NORTHWEST, L.L.C. CITY OF HOPKINS By By Its Its By By Its Its -9- c:\Hopciv\Opus Met Council Subrecipient Agmt.081606 "--'--"-'---~'-'--~---~'''''''~r~--~~-'~~~~'~~-''-~''-'"-'''~'''"''''''-''''''-r'~'''''~''~-'--''''''''''- ..."~,- -..- ..-.....-.........".'1'--.-....--.. --..-....- ."...-..........."......---..--.-.........-....-..- ...... EXHIBIT A LEGAL DESCRIPTION OF REDEVELOPMENT PROPERTY Lots 11, 12, 13 and the Easterly 16 feet of Lots 14 and 15, Block 4, West Minneapolis Center, Hennepin County, Minnesota. Also the following: Tract A: LQt 1, Block 1, Valu Addition, according to the recorded plat thereof, Hennepin County, Minnesota. Tract B: Parcell: Tracts A, B and C, Registered Land Survey No. 1465, Hennepin County, Minnesota, except that portion of Tracts A and B lYing Southerly of the Northerly right-of-way line of County Road Number 3 as described in Final Certificate Document Number 1584165, and excepting further those parts of said Tracts A, B and C shown as Parcel Nos. 29A, 29B, 29C, 29D, 29E and 29F on City of Hopkins Right of Way Plat No.1, Hennepin County, Minnesota. Parcel 2: Lots 3, 4, 5,6, 7, 8, 9 and 10, Block 13, West Minneapolis Center, except that part of said Lots 3, 4, 5, 6 and 7 shown as Parcels 34B on City of Hopkins Right of Way Plat No.1, Hennepin County, Minnesota. Tract C: Parcell: Lots 1 and 2, Block 13, West Minneapolis Center, except that part of said Lots shown as Parcel 34C on City of Hopkins Right of Way Plat No.1; All of vacated North and South alley in said Block 13 lying between the Westerly extension across it of the North line of said Lot 1 and the Southwesterly extension across it of the Southeasterly line of said Lot 1; All of the Northeast and Southwest vacated alley in Block 13 lying between the Northerly extension across it of the East line of Lot 2, in said Block 13, and the west Line of Lot 7 in said Block 13, except that part shown as Parcel 34C on City of Hopkins Right of Way Plat No.1. - 10- c:\Hopciv\Opus Met Council Subrecipient Agmt.081606 ~~'C"n.~""'__"'_'_'___"""'""""--__-t""l"""~""'~"""""""""""'~".""'''''''''''''''''''''_''''~I''''I'''__''''...........-.~..........,-..........,..................-'-1--.---"T.............~._.r..........,...............___,....._~..._"".._....--r......'w.~".,.....i'..........-'...._"'...~~-"-'-_..-_...__..-...-...._--_.,.--............,...~_...._....I...._......__... I , I , Parcel 2: Lots 14 and 15 except the East 16 feet of Lots 14 and 15, Lots 16 through 26, inclusive, Block 4, West Minneapolis Center, Hennepin County, Minnesota. Parcel 3: That part of vacated Monroe Avenue, dedicated in West Minneapolis Center, lying between the WesterIy extension across it of the North line of Block 4, in said plat, and the Southwesterly extension across it of the Southeasterly line of Block 13, in said plat, except those parts thereof shown as Parcel Nos. 29H and 34A on City of Hopkins Right of Way Plat No.1; That part of vacated First Street North, dedicated in West Minneapolis Center, lying between the Southerly extensions across it of the West line of the East 16.00 feet of Lot 14 and the West line of Lot 14 in Block 4, West Minneapolis Center, Hennepin County, Minnesota. Parcel 4: A Tract of land comprising a part of the former right-of-way of Burlington Railroad Company in the Northwest Quarter of the Southwest Quarter of Section 19, Township 117, Range 21; Hennepin County, Minnesota; a part of Lots 1,2 and 3, Block 9, West Minneapolis Center; a part of vacated First Street North; and an undesignated triangular tract in West Minneapolis Center adjoining the North line of First Street North and the West line of Adams Avenue, all described as follows: Begirming at the intersection of the Westerly line of Tract A, Registered Land Survey No. 1465, Files of Registrar of Titles, County of Hennepin, with the South line of the North 180.00 feet of said Northwest Quarter of the Southwest Quarter; thence on an assumed bearing of South 89 degrees 35 minutes 39 seconds West along said South line a distance of 97.29 feet; thence South 20 degrees 22 minutes 42 seconds West a distance of 153.29 feet; thence Southerly 410. 71 feet along a tangential curve concave to the East, having a radius of914.93 feet and a central angle of 25 degrees 43 minutes 11 seconds to the Westerly line of Lot 1, Block 9, West Mirmeapolis Center, said Westerly line bears South 20 degrees 24 minutes 32 seconds West from the point of beginning; thence South 20 degrees 24 minutes 32 seconds West along said Westerly line a distance of 22.51 feet; thence Southerly 153.64 feet along a non-tangential curve concave to the East having a radius of 924.93 feet, a central angle of 9 degrees 31 minutes 03 seconds and chord which bears South 11 degrees 21 minutes 21 seconds East to the Easterly line of said Block 9; thence Northerly along said Easterly line and its extension to the Southeasterly line of said former right-of-way, thence North 20 degrees 24 minutes 32 seconds East along said Southeasterly line to the point of beginning, Hennepin County, Minnesota. Parcel 5: That part of vacated Adams Avenue, dedicated in West Minneapolis Center, lying Southerly of the Southeasterly line of the former right-of-way of Burlington Northern Railroad Company and Northerly of the following described line: Beginning at the most Northerly corner of Tract D, ..11- C:\Hopciv\Opus Met Council Subrecipient Agmt.081606 ..----~~.-.__'__..~.__,.~-~__'__..._.,__._......--.-..--...........-~..~,w.....~_.-~~~'"..~.,~.....".r..~...M-".-M..~.~-"~...-'~--."'-..-"..._.."._..._.._...._....,__...-...-...-.-_.,._..._.______~-....."..........._...__-_ Registered Land Survey No. 1465; thence Northwesterly along the extension of the Northeasterly line of said Tract D a distance of 6.17 feet; thence Northwesterly along a tangential curve to the right having a radius of 924.93 feet to the West line of vacated Adams Avenue and there terminating, Hennepin County, Minnesota. - 12- c.:\Hopciv\Opus Met Council Subrecipient Agmt.081606 ---r------.~-'-~.. EXIDBIT B METROPOLITAN LIVABLE COMMUNITY'S ACT GRANT AGREEMENT AND APPLICATION FOR TAX BASE REVITALIZATION ACCOUNT FUNDS - 13- c.:\Hopciv\Opus Met Council Subrecipient Agmt.081606 ,...,.............~,,---....__..~~J_--_._....._.._~......,__i""'A__......A..._+....t....t">_._...~............"""l..-__...,,__.....,......t'-l_........_........_~_............_....._'"...._.._............. '"Tl~..,.......r....,.'-....r"'l'."-....--."r ........,....-........... .-..... .........-.....-. .-r....T......1.~..-.........r~.........,w.....- ...... ..,....."'......................11-............,....,...................................,....................... SUB-RECIPIENT AGREEMENT THIS AGREEMENT, made on or as of the day of , 2006, 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 Opus Northwest, L.L.C., a limited liability company under the laws of the State of Delaware (hereinafter referred to as the "Redeveloper"), having its principal office at 10350 Bren Road West, Minnetonka, MN 55343. RECITALS: A. Redeveloper has acquired certain real property located within the City and legally described in Exhibit A attached hereto (which real property is referred to herein as the "Redevelopment Property"). B. Redeveloper intends to redevelop - the Redevelopment Property in accordance with a Development Plan approved by the City. c. Redeveloper's redevelopment of the Redevelopment Property will require and include the investigation, assessment, removal, handling or remediation of contaminated soils and other materials located on the Redevelopment Property, and abatement of asbestos and lead-based paint from buildings located on the Redevelopment Property which are to be demolished as part of the redevelopment thereof. D. At the request of Redeveloper, the City applied for grant funds from the Contamination Cleanup Grant Program administered by the Department of Employment and Economic Development of the State of Minnesota ("DEED") to provide funding for the investigation, response and other remediation actions described in the Application and Grant Agreement identified in Recital Paragraph E (which investigation, response and remediation actions are referred to herein as the "Work"). E. Pursuant to the Application to DEED (the "Application"), the City has or shall be awarded a Contamination Cleanup Program Grant (the "Grant") in the amount of $952,000.00, which Grant will be disbursed by DEED to the City pursuant to the terms and conditions of the Contamination Cleanup Program Grant Agreement attached hereto as Exhibit B (the "Grant Agreement"). A copy of the Application is attached to the Grant Agreement. F. Redeveloper has agreed to pay any amount by which the cost of the Work exceeds the Grant. - 1 - c.:\Hopciv\Qpus DEED Subrecipient Agmt.081606 l _-...oco...........~.............................., ...._._............-rI'........_....,-~........................._..........._HR"""I.---~...1........-...............,..T..........1I....~....._,..,.......,.....~'-...,.........-..-........-~...y._<t"....-...-l................'~...............~.."''''......................7'",..........._---_._- ---...._- "--'1- ....-............yr---- G. 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 Recitals 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. Accuracv of Recitals. The parties agree that the above Recitals are true and accurate and are incorporated in and made a part of this Agreement. 2. Disbursement of Grant Funds. If and to the extent that the City receives funds pursuant to the Grant Agreement, the City shall disburse them to or for the benefit of Redeveloper solely for the uses and purposes for which such funds were disbursed by DEED, subject to the terms and conditions of this Agreement and the Grant Agreement. The City's sole obligation under this Agreement shall be to disburse to Redeveloper any funds actually received by the City pursuant to 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 incurred by 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 steps necessary to assure such use of said funds through its contracts with the contractors that will perform the work. 4. Redeveloper Obli!!ations. The Grant Agreement is incorporated in and made a part of this Agreement in its entirety. Redeveloper does hereby assume and agree to perform and observe all of the covenants, obligations, agreements and conditions to be performed or observed by the City under the Grant Agreement. Without limiting the generality of the foregoing, Redeveloper specifically agrees as follows: A. Redeveloper shall expeditiously and diligently commence and pursue the Work within the time frames specified in the Application and Grant Agreement. Redeveloper shall immediately notify the City in the event of any change in the prospects for the timely completion of the Work. B. All contracts and subcontracts for performance of the Work shall comply with the provisions of the Grant Agreement. 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 of the Work fully in compliance with the terms and conditions of the Grant Agreement and in a good and workmanlike manner and in accordance with applicable state and federal laws and regulations, including, without - 2 ~ c:\Hopclv\Opus DEED Subrecipient Agmt.081606 .-._.__._-_.-~--~~~~-~~._._~~-~'_.._..~-'__ "~-'-~-_~~'-___"_~"''''''_'_'-_~__I''~'_'_'''.~'''~___~'''_.-~__'_'''~__'_'__''_'__'N''__'~______'''_'.~'_ ,.w____...".._.....__ ~-----_._-~--------_. limitation, applicable Minnesota Pollution Control Agency ("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 DEED, pursuant to the provisions of the Grant Agreement, demands and is entitled to return of Grant funds already disbursed, Redeveloper shall within ten (10) days of demand by the City pay the City the amount demanded by DEED. D. Redeveloper shall comply with all accounting, reporting, record keeping and audit requirements of the Grant Agreement and 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, DEED, the Minnesota Legislative Auditor and the 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. 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 or such longer period of time as may be required by the Grant Agreement. Upon request, Redeveloper shall deliver to the City accurate and complete copies of all books, accounts, records, contracts and other documents related to the Work and required to be maintained pursuant to this Agreement and the Grant Agreement. The documents to be delivered to the City shall include, but are not limited to, all results of tests and inspections performed as part of the Work and all reports, summaries and assessments related to or describing the Wark or results thereof. All documents delivered to the City pursuant to this Agreement shall be public information, and may be retained by the City. E. Redeveloper shall prepare and timely submit to the City and DEED all reports on Grant fund distribution and Work progress as required by the Grant Agreement. The City shall not be obligated to make applications for disbursement to DEED under the Grant Agreement until and unless Redeveloper has provided all required documents and information to the City. F. The City's authorization of the submission of the Application to DEED and the City's approval and execution of the Grant Agreement was done in reliance upon and conditioned on the understanding that the City would not incur any financial obligations and that Redeveloper shall be responsible for the payment of all costs of the Work in excess of the Grant, including, without limitation, any required local contribution or local match required under the Grant Agreement or any other agreement, application or program related to the Work or Redeveloper's activities on the Redevelopment Property. Redeveloper agrees to pay all such costs identified in the - 3 - c:\Hopciv\Opus DEED Subrecipient Agmt.081606 --~"'__.___~__""~_'.__"";"'__"_"__~_l""_'~''''_'''''''''''_'''''_''\_'''~__................,........-..~....~.......T_........r--T-.~.................................n-~....:-I'_..~..................-............-......,..r-......~-:....,.....---..-,..................~,-'r.r........,._........"'"._....,_..._--...~.....".._...........____. preceding sentence and further agrees that, if the City is required to actually pay any amount in connection with the Grant or the performance of the Wark, Redeveloper shall within ten (10) days after request by the City, and as a condition of the City's payment of such amounts, payor reimburse the City for such amounts. G. Redeveloper shall provide all certifications at the times the same are required to be provided under the Grant Agreement. H. 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: General Aggregate Personal and Advertising Injury Each Occurrence - Combined Bodily Injury and Property Damage Limits $1,000,000 $1,000,000 $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 If the contractor is based outside the State of Minnesota, coverage must apply to Minnesota laws. Statutory b. Employer's Liability. Bodily Injury by: Accident - Each accident Disease - Policy Limit Disease - Each Employee $100,000 $500,000 $100,000 4. Professional Liability - Per Claim and Aggregate $1,000,000 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 Redeveloper nOf any contractor or subcontractor shall commence the Work until Redeveloper and any contractor or subcontractor has obtained the required proof of -4- c:\Hopciv\Opus DEED Subrecipient Agmt.081606 -~~'-'-'~-_Y+"'-'-'-'--""--~_.~'-'''''''''''r'~~-~''~'~'~~--''......-~_._~...---.......-...-._..,.._......--..~....I.~.."..._"_.,-,..-'"''--''-'-'~---''----'-~'---''--'-1-''---''''''''-''-~''' -..-..-....---,..---.-..., -...- .".,.--,.-- .....--.. . insurance which clearly evidences required insurance coverage. Redeveloper shall otherwise comply with any requirements of the Grant Agreement related to insurance and provide all insurance policies and coverages required thereby, all without cost to the City. The foregoing insurance coverages and requirements may be satisfied by Redeveloper or Redeveloper's contractors purchasing and maintaining in effect insurance policies and coverages complying with the requirements stated in this Paragraph 4. The foregoing insurance coverages and requirements may also be satisfied by Redeveloper or Redeveloper's contractors purchasing and maintaining in effect insurance policies and coverages pursuant to the Sub.Recipient Agreement of even date herewith between the City and Redeveloper related to the Metropolitan Livable Communities Act Agreement and providing the same coverages and limits of coverage. By entering into this Agreement, the City does not waive any statutory, common law or other immunities or limitations on the liability of the City, and the City specifically reserves all such immunities and limitations of liability. I. Redeveloper shall include in any contract, prOVIsIons that require its contractors and their subcontractors 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. J. Redeveloper hereby assigns to the City for the benefit of DEED any and all claims for over charges for goods and/or services provided in connection with this Agreement or the performance of the Work resulting from antitrust violations which arise under the antitrust laws of the United States and the antitrust laws of the State of Minnesota, as provided in the Grant Agreement. 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 DEED, the City and the Grant Agreement, and the City shall forward the same to DEED in the manner and upon the schedule set forth in the Grant Agreement. Redeveloper shall submit such other documentation as the City or DEED may require relative to costs of the Work. B. Payment requests may be submitted no more often than monthly and shall be submitted on or before the first day of the month. The amount of grant funds ... 5... c.:\Hopciv\Opus DEED Subrecipient Agmt.081606 '_~_"""""'-'\'''''_''.'____''''''''''''''''''_'''''''__''__''l'__'''''''''''''''''''''''''''''''''''I~...""............-_~tT''1'_.......--+T_''''-'''.........--.-.._--....._....._~....__-.-.....-.~..-"1-..---__-.-............._o'\.~....,.~..................r._........-......_..-."'"'""-"-1'-"'-"'"'~~""""'-'-'-'''''-'''''''-_''''--+''-''-'-'-''''''''''___'''''''''''''''''''''''''''''T''''''''''..~ , I I requested by Redeveloper may not exceed seventy..five percent (750/0) of the total approved cleanup costs incurred by Redeveloper as provided in the Grant Agreement. C. Upon the City's receipt of funds from DEED, the City shall forward the same to 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, DEED and their respective officials, directors, officers, employees and agents, and their respective heirs, successors and assigns (collectively, the "Indemnified Parties") from and against any and all claims, demands, judgments, penalties, liabilities, costs, damages, liens 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. Redeveloper further acknowledges and agrees that the foregoing agreement to indemnify, defend and hold harmless the City shall include indemnification against any Liabilities of the City arising under the Grant Agreement. 7. Independent Contractor. 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 of partners or joint venturers between the City and Redeveloper or as constituting Redeveloper as the agent, representative, or employee of the City for any purpose or in any manner whatsoever. Redeveloper is to be and shall remain an independent contractor with respect to all services and activities described in this Agreement. Any and all personnel of Redeveloper or other persons while engaged in the performance of any work or services required by 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 Redeveloper, its officers, agents, contractors, or employees shall in no way be the responsibility of the City. Redeveloper shall defend, indemnify and hold harmless 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. 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 incurred by the -6- ~:\Hopciv\Opus DEED Subrecipient Agmt.081606 '~'~""""""""--~-~-'''------'~''''''''''''r''''"'-'-'''-''--'''''''''~''-'~~'-''--'-'''---'-~n_m"n~'K"_~'---"r..----~~.n-~'__-'~'~----'-----'---"'-T_______...____.._"""_..__....'".._.._._.~..._....w._. City (including costs and fees and expenses of the City~s attorneys at the rate of $225.00 per hour) in connection with the negotiation, preparation, approval, review, execution, delivery, amendment, modification, interpretation, collection and enforcement of this Agreement, the Grant Agreement or any amendments thereto. The obligation of Redeveloper under this paragraph shall survive any termination of this Agreement. 9. Termination; Default: Remedies. This Agreement shall terminate if the Grant Agreement is terminated in accordance with its terms and conditions. However, the provisions of paragraph 6 of this Agreement and any other provision of this Agreement which, by its terms, impliedly or explicitly, is to survive the termination of this Agreement shall survive and be enforceable after such termination. 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 terminate its obligation to forward funds received pursuant to the Grant Agreement to Redeveloper, except that Redeveloper shall be given an opportunity to cure the extent provided for in the Grant Agreement. 10. Notices. All notices, requests and other communications hereunder shall be in writing and shall be delivered personally or by first class 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. Notices shall be deemed duly delivered for all purposes at the time of personal delivery to the representative of the City or Redeveloper named below or two business days after being deposited in the United States mail. The addresses for notices are as follows: If to the City: City of Hopkins Attention: City Manager 1010 First Street South Hopkins, MN 55343 Copy to: Jeremy S. Steiner, Esq. Steiner & Curtiss, P.A. 400 Wells Fargo Bank Building 1011 First Street South Hopkins,:MN 55343 ..7.. c:\Hopciv\Opus DEED Subrecipient Agmt.081606 _U.'--'-"-~'----~'--~----r---'-'-"~'~'''-''''~--''~'''''-"'''"'''-'''-~'''-''-.''-'-'-'''''''''''-1''-'~'-'''"-''''''''-'-''''''...". ....-,,~._.. ......-'~...."'.........'"'!.,.. ".... .............. ... ....... ....-.....-....... .......m......". ...... .~..._~- If to Redeveloper: Opus Northwest, L.L.C. 10350 Bren Road West Minnetonka, lvfN 55343 Attn: Vice President, Real Estate Development - David 1. Menke Copy to: Opus Northwest, L.L.C. 10350 Bren Road West Minnetonka, MN 55343 Attn: Legal Department - Brad J. Osmundson 10. Miscellaneous. A. Governine: 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 and the exhibits hereto contain the entire agreement of the parties relating to the subject matter hereof and supersede 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 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. Assienment. 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. .8. c:\Hopciv\Opus DEED Subrecipient Agmt.081606 ........-...,..."..,...,................~_..~_~.I_......_"..-..._-rwY.........-__'I"...........fo't--.---".._________.~.1......................~.........._r~..-rr."..,_.........,_"........... -:.~.........~. -!~...-~,.""......,....__..,...-.....f+....,T"-....---'~-_............_--...._...~..-1.......~,-.-...........................~I-.................~.........'"'~ ........-,......<qo'...~,..._...-"1.-.....---- . G. Severabilitv. 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 Agreement shall be unaffected and shall continue in full force and effect. H. Exhibits: Captions and Headlines: Interpretation. Exhibits A and B hereto are 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. Bindine Effect. This Agreement shall be binding on and inure to the benefit of the parties hereto and their respective successors and permitted assigns. J. No Third-Party Beneficiaries. With the exception of DEED, there are no third party beneficiaries of this Agreement, intended or otherwise. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. REDEVELOPER: CITY: OPUS NORTHWEST, L.L.C. CITY OF HOPKINS By By Its Its By By Its Its -9~ c:\Hopciv\Opus DEED Subrecipient Agmt.081606 ----'~,-~_.-.---..-.-......,.........-.~'--~r_-~~-'-,.......-.,...---.--.---.'-.-..-.-..--'-1"'.--- _,_~._._'~__..H..._.....__.,"'_._...__.",....~...._._'._ .r--',__ ~-,-,.--,.. ~,-. " .- ...-.....- -..........-.....................-. EXHIBIT A LEGAL DESCRIPTION OF REDEVELOPMENT PROPERTY Lots 11, 12, 13 and the Easterly 16 feet of Lots 14 and 15, Block 4, West Minneapolis Center, Hennepin County, Minnesota. Also the following: Tract A: Lot 1, Block 1, Valu Addition, according to the recorded plat thereof, Hennepin County, Minnesota. Tract B: Parcell: Tracts A, Band C, Registered Land Survey No. 1465, Hennepin County, Minnesota, except that portion of Tracts A and B lying Southerly of the Northerly right~ofMway line of County Road Number 3 as described in Final Certificate Document Number 1584165, and excepting further those parts of said Tracts A, B and C shown as Parcel Nos. 29A, 29B, 29C, 29D, 29E and 29F on City of Hopkins Right of Way Plat No.1, Hennepin County, Minnesota. Parcel 2: Lots 3, 4, 5, 6, 7, 8, 9 and 10, Block 13, West Minneapolis Center, except that part of said Lots 3, 4, 5, 6 and 7 shown as Parcels 34B on City of Hopkins Right of Way Plat No.1, Hennepin County, Minnesota. Tract C: Parcell: Lots 1 and 2, Block 13, West Minneapolis Center, except that part of said Lots shown as Parcel 34C on City of Hopkins Right of Way Plat No.1; All of vacated North and South alley in said Block 13 lying between the Westerly extension across it of the North line of said Lot 1 and the Southwesterly extension across it of the Southeasterly line of said Lot 1; All of the Northeast and Southwest vacated alley in Block 13 lying between the Northerly extension across it of the East line of Lot 2, in said Block 13, and the west Line of Lot 7 in said Block 13, except that part shown as Parce134C on City of Hopkins Right of Way Plat No.1. - 10- c:\Hopciv\Opus DEED Subrecipient Agmt.081606 -'-'~'-""-~~~--"~~'~"~'-'--"~-r"--"'~_.'--"'''''''''-_._.--~-""-"-'-~.-.~~r'~"'""'"r~~~--~'-~'~~~ ,-. "--~""....._~,..:....,-..._'_._~-.. .,......-,...~."~"."~_..._..,,...._...~._- Parcel 2: Lots 14 and 15 except the East 16 feet of Lots 14 and 15, Lots 16 through 26, inclusive, Block 4, West Minneapolis Center, Hennepin County, Minnesota. Parcel 3: That part of vacated Monroe A venue, dedicated in West Minneapolis Center, lying between the Westerly extension across it of the North line of Block 4, in said plat, and the Southwesterly extension across it of the Southeasterly line of Block 13, in said plat, except those parts thereof shown as Parcel Nos. 29H and 34A on City of Hopkins Right of Way Plat No.1; That part of vacated First Street North, dedicated in West Minneapolis Center, lying between the Southerly extensions across it of the West line of the East 16.00 feet of Lot 14 and the West line of Lot 14 in Block 4, West Minneapolis Center, Hennepin County, Minnesota. Parcel 4: A Tract of land comprising a part of the former right~of.way of Burlington Railroad Company in the Northwest Quarter of the Southwest Quarter of Section 19, Township 117, Range 21; Hennepin County, Minnesota; a part of Lots 1,2 and 3, Block 9, West Minneapolis Center; a part of vacated First Street North; and an undesignated triangular tract in West Minneapolis Center adjoining the North line of First Street North and the West line of Adams Avenue, all described as follows: Beginning at the intersection of the Westerly line of Tract A, Registered Land Survey No. 1465, Files of Registrar of Titles, County of Hennepin, with the South line of the North 180.00 feet of said Northwest Quarter of the Southwest Quarter; thence on an assumed bearing of South 89 degrees 35 minutes 39 seconds West along said South line a distance of 97.29 feet; thence South 20 degrees 22 minutes 42 seconds West a distance of 153.29 feet; thence Southerly 410. 71 feet along a tangential curve concave to the East, having a radius of914.93 feet and a central angle of 25 degrees 43 minutes 11 seconds to the Westerly line of Lot 1, Block 9, West Minneapolis Center, said Westerly line bears South 20 degrees 24 minutes 32 seconds West from the point of beginning; thence South 20 degrees 24 minutes 32 seconds West along said Westerly line a distance of 22.51 feet; thence Southerly 153.64 feet along a non.tangential curve concave to the East having a radius of 924.93 feet, a central angle of 9 degrees 31 minutes 03 seconds and chord which bears South 11 degrees 21 minutes 21 seconds East to the Easterly line of said Block 9; thence Northerly along said Easterly line and its extension to the Southeasterly line of said former right-of-way~ thence North 20 degrees 24 minutes 32 seconds East along said Southeasterly line to the point of beginning, Hennepin County, Minnesota. Parcel 5: That part of vacated Adams Avenue, dedicated in West Minneapolis Center, lying Southerly of the Southeasterly line of the former right-of-way of Burlington Northern Railroad Company and Northerly of the following described line: Beginning at the most Northerly comer of Tract D, - 11 ~ Q:\Hopciv\Opus DEED Subrecipient Agmt.081606 -.....,~_._~"--~_...-.,..,..-----_.~,........._'r-----~.~~.~~~""~..,-.-..>~"'"~~'.'~'~'-r~'-"''''''.''~'-''.''-~''''''''-'~~-'-''-''''''~''''''''N.....1-...".".........--""...."..'..".."...............-..---.."......".,~~...."....... Registered Land Survey No. 1465; thence Northwesterly along the extension of the Northeasterly line of said Tract D a distance of 6.17 feet; thence Northwesterly along a tangential curve to the right having a radius of 924.93 feet to the West line of vacated Adams Avenue and there terminating, Hennepin County, Minnesota. c:\Hopciv\Opus DEED Subrecipient Agrnt.081606 ' - 12... ....~..........._----~--~...~~~-',.,.._i"l!-._..._.-,....--.-.-.....--................"'l........................_..............~..................-_...-.-...-....,--.._........--.....,.............r--..........-....,'-'--.._......._........~._........t...._...-..-_.......~........_~-....-......1........-N'.- r........,......_....~_......,.,..........._.,......._......- ....-....-..---...,._..........-....-..... EXHIBIT B STATE OF MINNESOTA DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT BUSINESS AND COMMUNITY DEVELOPMENT DIVISION CONTAMINATION CLEANUP PROGRAM GRANT AGREEMENT AND APPLICATION FOR CONT AMINA TION CLEANUP GRANT - 13 - 1.l:\Hopciv\Opus DEED Subrecipient Agmt.081606 --"._-~------~--'-"I-.'-."'--~-'---~-"----'~-~~~.'"'~-~..~"...~..~-.t~-'"-~"""""'.'~'~'~~"'"'-'~~-.-'~"'-'l......-......... .--..-----.-.-..".,- -,___.__...__,~..~._.h__.._.._..