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CR 06-104 Amend Environmental Remediation Grant Sub-Recipient Agreements-Excelsior Crossings C\TY OF m September 13, 2006 HOPKINS ouncil Report 2006-104 AMEND ENVIRONMENTAL REMEDIATION GRANT SUB-RECIPIENT AGREEMENTS- EXCELSIOR CROSSINGS ProDosed Action Staff recommends adoption of the following motion: Move to aoorove the amended Sub- recioient Aareements between the City of Hookins and Oous Northwest. LLC. With this motion it is understood that staff can make minor modifications that do not affect the overall intent of the agreements. Overview 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 and sub-recipient agreements were approved at the September 5, 2006, City Council meeting. Opus Corporation did request changes to the subrecipient agreements which are incorporated into the attached amended agreements. Primary Issues to Consider The only significant change is pertaining to the liability of the City in the event the City is found to be negligent or in default under the agreement. Staff is confident that due to the nature of the City's involvement (acting as a conduit of the funds) there is little risk in approving these changes. SUDDortina Information using & Development Coordinator Fin ciallmpact: $ 0 Budgeted: Y/N Related Documents (CIP, ERP, etc.): Notes: Source: Draft dated 9/7/06 SUB-RECIPIENT AGREEMENT TillS 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 Summary 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 project summary that identifies eligible uses of Grant funds is incorporated in and made a part of the Grant Agreement. F. Redeveloper has agreed to pay (or cause to be paid from alternative sources) any amount by which the cost of the Work exceeds the Grant. - 1 - ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 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 obligations under this Agreement shall be to a) disburse to Redeveloper any funds actually received by the City pursuant to the Grant Agreement; b) take such actions as are reasonably required on the City's part under the Grant Agreement to exercise all rights and remedies afforded to the City under the Grant Agreement and to perform and observe all of the City's covenants, obligations and agreements under the Grant Agreement; and c) refrain from taking any action that would constitute a default under the Grant Agreement. However, notwithstanding any provision of this Agreement apparently to the contrary, the City's obligations under this Agreement shall be conditioned upon the Redeveloper performing all of its duties, obligations, liabilities and undertakings under this Agreement; and the City shall in no event be liable to Redeveloper for monetary damages for breach of the City's obligations and undertakings under this 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. Redevelooer Oblie: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, all in accordance with the terms and conditions of the Grant Agreement. Without limiting the generality of the foregoing, Redeveloper specifically agrees as follows: -2- ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 A. Redeveloper shall expeditiously and diligently commence and pursue the Work within the time frames specified in the Application Summary and Grant Agreement. Redeveloper shall promptly notify the City in the event Redeveloper becomes aware of any circumstance that is reasonably likely to materially and adversely affect 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 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 (10) 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, following reasonable notice to Redeveloper, 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 Grant Agreement. The City shall not be obligated to make applications for disbursement to the Met Council under - 3 - ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 the Grant Agreement until and unless Redeveloper has provided to the City all documents and information required under the Grant Agreement and this Agreement for such purposes. 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 Redevelopment Property. Redeveloper agrees to pay (or cause to be paid) all such costs identified in the 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 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 it shall maintain such insurance as may be customary and commercially reasonable for projects of similar type and scope as the Work, which shall include commercial general liability insurance. The City shall be named as an additional insured on the commercial general liability insurance policy maintained by Redeveloper, and such liability insurance policy shall be written on an "occurrence" basis. Redeveloper and any contractor or subcontractor performing any of the Work under this Agreement shall furnish certificates of insurance to the City for such insurance coverages, and provide updated certificates as coverage expires. Neither Redeveloper nor any contractor or subcontractor shall commence the Work until 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 - 4- ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 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 pursuant to 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 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 tenth 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) no Event of Default (as defined below) on the part of Redeveloper has occurred and is then continuing, and (ii) Met Council hasnot required the City to withhold such funds from Redeveloper and/or return them to Met Council in accordance with the terms and conditions of the Grant Agreement. 6. Indemnitv. Redeveloper hereby 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; provided the Indemnified Parties tender defense of any Liabilities subject to Redeveloper's indemnities hereunder to Redeveloper within a reasonable period of time to permit Redeveloper to defend the same through legal counsel selected by Redeveloper and reasonably acceptable to the Indemnified Parties. Notwithstanding the provisions of the preceding sentence, the Liabilities shall not include and Redeveloper's indemnities hereunder shall not apply to any claims, demands, judgments, penalties, liabilities, - 5 - ,":\Hopciv\Opus Met CouncIl Subrecipient Agmt.clean.090706 costs, damages, liens and expenses directly resulting from the negligence or wrongful acts of the Indemnified Parties. . 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. Indeoendent 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 Exoenses. Redeveloper agrees to reimburse the City within thirty (30) days of demand by the City for all reasonable out-of-pocket expenses paid or incurred by the City (including fees 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, is to survive the termination of this Agreement shall survive and be enforceable after such termination. If either party shall default in the performance or observance of any of its obligations or undertakings under this Agreement (such default being herein referred to as an "Event of Default") and such party does not cure such Event of Default within fifteen (15) days after delivery of written notice of such Event of Default from the other party or, in the event such event of such Event of Default is not capable of being cured within such fifteen (15) day period, - 6- ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 the defaulting party has not commenced within such fifteen (15) day period good faith efforts to cure such Event of Default and is not then diligently proceeding to effect and complete such cure as soon as reasonably practical, the non-defaulting party may then exercise any and all remedies available to such party at law or in equity. If an Event of Default on the part of Redeveloper shall have occurred and is continuing, the City may suspend or terminate its obligation to forward funds received pursuant to the Grant Agreement to Redeveloper. Notwithstanding the foregoing or any other provision of this Agreement apparently to the contrary, in no event shall the City be liable to Redeveloper for monetary damages; and Redeveloper agrees its sole and exclusive remedy for an Event of Default by the City shall be an action in equity to compel the City's performance of its obligations under this Agreement. Redeveloper agrees that, if an Event of Default on the part of Redeveloper occurs, and upon final adjudication by a court of competent jurisdiction of such Event of Default, Redeveloper shall pay the City's reasonable attorney's fees and expenses incurred as a result of such Event of Default. As the sole exception to the provisions of this Agreement stating that the City shall not be liable to Redeveloper for monetary damages, the City agrees that, if an Event of Default on the part of the City occurs, and upon final adjudication by a court of competent jurisdiction of such Event of Default, the City shall pay Redeveloper's reasonable attorney's fees and expenses incurred as a result of such Event of Default by the City. 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 - ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 If to Redeveloper: Opus Northwest, L.L.C. 10350 Bren Road West Minnetonka, MN 55343 Attn: Vice President, Real Estate Development - David J. 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 Ae:reement. 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. Assie:nment. This Agreement shall not be assignable, in whole or in part, by either party without the prior written consent of the other party. F. Counteroarts. 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 - ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 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: Caotions and Headlines: Interoretation. 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-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- ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 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, 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, Band 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 Parcel34C on City of Hopkins Right of Way Plat No. 1. - 10 - ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 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 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 corner of Tract D, - 11 - ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 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 - ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 EXHIBIT B METROPOLITAN LIVABLE COMMUNITY'S ACT GRANT AGREEMENT AND APPLICATION FOR TAX BASE REVITALIZATION ACCOUNT FUNDS - 13 - ,":\Hopciv\Opus Met Council Subrecipient Agmt.clean.090706 Draft dated 9/7/06 SUB-RECIPIENT AGREEMENT TillS 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"). The Application is incorporated in and made a part of the Grant. Agreement. F. Redeveloper has agreed to pay (or cause to be paid from alternative sources) any amount by which the cost of the Work exceeds the Grant. - 1 - ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 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 obligations under this Agreement shall be to: a) disburse to Redeveloper any funds actually received by the City pursuant to the Grant Agreement; b) take such actions as are reasonably required on the City's part under the Grant Agreement to exercise all rights and remedies afforded to the City under the Grant Agreement and to perform and observe all of the City's covenants, obligations and agreements under the Grant Agreement; and c) refrain from taking any action that would constitute a default under the Grant Agreement. However, notwithstanding any provision of this Agreement apparently to the contrary, the City's obligations under this Agreement shall be conditioned upon the Redeveloper performing all of its duties, obligations, liabilities and undertakings under this Agreement; and the City shall in no event be liable to Redeveloper for monetary damages for breach of the City's obligations and undertakings under this 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 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. Redevelooer Oblie: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, all in accordance with the terms and conditions of the Grant Agreement. Without limiting the generality of the foregoing, Redeveloper specifically agrees as follows: -2- ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 A. Redeveloper shall expeditiously and diligently commence and pursue the Work within the time frames specified in the Application and Grant Agreement. Redeveloper shall promptly notify the City in the event Redeveloper becomes aware of any circumstance that is reasonably likely to materially and adversely affect 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 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, following reasonable notice to Redeveloper, 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 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 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 to the City all documents and information required under the Grant Agreement and this Agreement for such purposes. - 3 - ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 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 (or cause to be paid) all such costs identified in the 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 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 it shall maintain such insurance as may be customary and commercially reasonable for projects of similar type and scope as the Work, which shall include commercial general liability insurance. The City shall be named as an additional insured on the commercial general liability insurance policy maintained by Redeveloper, and ' such insurance policy shall be written on an "occurrence" basis. Redeveloper and any contractor or subcontractor performing any of the Work under this Agreement shall furnish certificates of insurance to the City for such insurance coverages, and provide updated certificates as coverage expires. Neither Redeveloper nor any contractor or subcontractor shall commence the Work until 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 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. -4- ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 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 pursuant to 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 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 tenth day of the month. The amount of Grant funds requested by Redeveloper may not exceed seventy-five percent (75%) 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) no Event of Default (as defined below) on the part of Redeveloper has occurred and then is continuing, and (ii) DEED has not required the City to withhold such funds from Redeveloper and/or return them to DEED in accordance with the terms and conditions of the Grant Agreement. 6. Indemnitv. Redeveloper hereby 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; provided the Indemnified Parties tender defense of - 5 - ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 any Liabilities subject to Redeveloper's indemnities hereunder to Redeveloper within a reasonable period of time to permit Redeveloper to defend the same through legal counsel selected by Redeveloper and reasonably acceptable to the Indemnified Parties. Notwithstanding the provisions of the preceding sentence, the Liabilities shall not include and Redeveloper's indemnities hereunder shall not apply to any claims, demands, judgments, penalties, liabilities, costs, damages, liens and expenses directly resulting from the negligence or wrongful acts of the Indemnified Parties. 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. Indeoendent 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 Exoenses. Redeveloper agrees to reimburse the City within thirty (30) days of demand by the City for all reasonable out-of-pocket expenses paid or incurred by the City (including fees 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, is to survive the termination of this Agreement shall survive and be enforceable after such -6- ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 termination. If either party shall default in the performance or observance of any of its obligations or undertakings under this Agreement (such default being herein referred to as an "Event of Default") and such party does not cure such Event of Default within fifteen (15) days after delivery of written notice of such Event of Default from the other party or, in the event such Event of Default is not capable of being cured within such fifteen (15) day period, the defaulting party has not commenced within such fifteen (15) day period good faith efforts to cure such Event of Default and is not then diligently proceeding to effect and complete such cure as soon as reasonably practical, the non-defaulting party may then exercise any and all remedies available to such party at law or in equity. If an Event of Default on the part of Redeveloper shall have occurred and is continuing, the City may suspend or terminate its obligation to forward funds received pursuant to the Grant Agreement to Redeveloper. Notwithstanding the foregoing or any other provision of this Agreement apparently to the contrary, in no event shall the City be liable to Redeveloper for monetary damages; and Redeveloper agrees its sole and exclusive remedy for an Event of Default by the City shall be an action in equity to compel the City's performance of its obligations under this Agreement. Redeveloper agrees that, if an Event of Default on the part of Redeveloper occurs, and upon final adjudication by a court of competent jurisdiction of such Event of Default, Redeveloper shall pay the City's reasonable attorney's fees and expenses incurred as a result of such Event of Default. As the sole exception to the provisions of this Agreement stating that the City shall not be liable to Redeveloper for monetary damages, the City agrees that, if an Event of Default on the part of the City occurs, and upon final adjudication by a court of competent jurisdiction of such Event of Default, the City shall pay Redeveloper's reasonable attorney's fees and expenses incurred as a result of such Event of Default by the City. 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 . -7- ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 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 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 Ae:reement. 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 subj ect 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 - 8 - ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 specifically waived. E. Assie:nment. This Agreement shall not be assignable, in whole or in part, by either party without the prior written consent of the other party. F. Counteroarts. 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. 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: Caotions and Headlines: Interoretation. 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-Pam 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- ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 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-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 Parcel34C on City of Hopkins Right of Way Plat No. 1. - 10 - c:\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 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 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 corner of Tract D, - 11 - ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 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 - ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706 EXHIBIT B STATE OF MINNESOTA DEPARTMENT OF EMPLOYMENT AND ECONOMIC DEVELOPMENT BUSINESS AND COMMUNITY DEVELOPMENT DIVISION CONTAMINATION CLEANUP PROGRAM GRANT AGREEMENT AND APPLICATION FOR CONTAMINATION CLEANUP GRANT - 13 - ,":\Hopciv\Opus DEED Subrecipient Agmt.clean.090706