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CR 10-125 Approve Environmental Investigation Grant AgreementCity of Hopkin November 16, 2010 Council Report 2010-125 Approve Environmental Investigation Grant Agreement Proposed Action Staff recommends adoption of the following motion: "Move that Council adopt Resolution No. 2010-075, approving the environmental investigation grant agreement from Hennepin County." Overview On April 20, 2010, City Council approved application for a Hennepin County grant to conduct additional investigation into the contaminated soils along Nine Mile Creek and develop a remediation plan. The grant has been awarded to the the City in the amount of $60,000. It is anticipated that the grant will cover all of the investigation costs for the section of Nine Mile Creek between Excelsior • Boulevard and 9th Avenue South. An additional grant to help defray the costs of remediation will be applied for after the investigations are complete. We anticipate applying for these funds in May, 2011 with the work being completed in the fall/winter 2011. Supporting Information • Grant Agreement • Resolution 2009-068 o R. Bradford, P.E. ity Engineer Financial Impact: 0.00 Budgeted: Y/N NA Source: NA Related Documents (CIP, ERP, etc.): NA Notes: 0 BAR 10-0252R2 Contract No. A100917 ENVIRONMENTAL RESPONSE FUND GRANT AGREEMENT BETWEEN THE CITY OF HOPKINS AND HENNEPIN COUNTY DEPARTMENT OF ENVIRONMENTAL SERVICES This Agreement is between the County of Hennepin, State of Minnesota ("County") at A2300 Government Center, Minneapolis, MN 55487 by its Department of Environmental Services ("Department") and the City of Hopkins ("Grantee") with offices located at 1010 South 1" Street, Hopkins, Minnesota, 55343. Grantee has submitted an application to the County for a grant to be used for conducting Phase II Environmental Site Assessment (ESA) to characterize contamination at proposed creek stabilization areas along the Nine Mile Creek project, development of a Response Action Plan (RAP), and related consulting and agency fees at City of Hopkins owned property and land under easement adjacent to Nine Mile Creek in Hopkins. The application is incorporated into this Agreement by reference. The parties agree as follows: 1. GRANT AMOUNT AND COMPLETION The County shall grant to Grantee a sum not to exceed Sixty Thousand dollars ($60,000.00) which funds shall be only for expenses incurred in performing activities specified in the Application and as may be further described in Exhibit A to this Agreement or as approved by the County. Approved activities as may be described in the application and Exhibit A are referred as the "Project". Administrative costs incurred by Grantee are not eligible for reimbursement. • Grantee shall complete the Project within one (1) year of execution of this Agreement and within the terms stated herein. Any material change in the scope of the Project, including time schedule and budget, must be approved in writing by the County. Upon approval by the County Administrator, the duration of this Agreement may be extended for up to twelve (12) months. Funds made available pursuant to this Agreement shall be used only for expenses incurred in performing such purposes and activities described in the Application and this Agreement. 2. ACCOUNTING AND RECORD KEEPING For all expenditures of funds made pursuant to this Agreement, 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 principles. The County, the State Auditor, or any of their duly authorized representatives at any time during normal business hours, and as often as they may reasonably deem necessary, shall have access to and the right to examine, audit, excerpt, and transcribe any books, documents, papers, records, etc., which are pertinent to the accounting practices and procedures of Grantee and involve transactions relating to this Agreement. Such materials shall be maintained and such access and rights shall be in force and effect during the period of the Agreement and for six (6) years after its termination or cancellation. 3. PAYMENT/DISBURSEMENT SCHEDULE County will disburse funds to Grantee pursuant to this Agreement, based on a payment request form provided by the County, submitted by Grantee and approved by the County. Payment requests can be submitted once per month and must be accompanied by supporting invoices that relate to activities in the approved Project budget. Subject to verification of adequacy of a written disbursement request and approval of consistency with this Agreement, the County will disburse the requested amount to Grantee within six (6) weeks after receipt of a written disbursement request. 0 • 4. REPORTING Grantee shall submit to the County 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 the County no later than July 25 of each year. The report shall identify specific goals listed in the application and quantitatively measure the progress of such goals. Reporting forms will be provided by the County. In addition, the required documentation listed in Exhibit A should be supplied as it becomes available. 5. CONTRACTS Grantee shall include in any contract, provisions that require contractors to comply with all applicable State and Federal laws and regulations regarding employment and workplace safety. In accordance with Hennepin County's policies against discrimination, Grantee shall not exclude any person 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. Public Grantees and any contractors or subcontractors performing services as part of this Agreement shall follow that public Grantee's Affirmative Action policy against discrimination. 6. TERMINATION, CANCELLATION AND ASSIGNMENT This Agreement may be canceled by the County upon sixty (60) days written notice to Grantee without cause. In the event of such cancellation, Grantee shall be entitled to payment, determined on a pro rata basis, for work or services • satisfactorily performed up to the effective date of such cancellation. If the County finds that there has been a failure to comply with the provisions of this Agreement, that reasonable progress has not been made toward commencement or completion of the assessment and/or clean-up activities specified in the Application and this Agreement, notwithstanding any other provisions of this Agreement to the contrary and after written notice and reasonable opportunity to cure, the County may refuse to disburse additional funds and/or require the return of all or part of the funds already disbursed, to the extent such funds were used for purposes other than activities contemplated by this Agreement. This Agreement may not be assigned without the prior written consent of the County. 7. INDEPENDENT CONTRACTOR Grantee shall select the means, method, and manner of performing the Project. Nothing is intended or should be construed in any manner as creating or establishing the relationship of co-partners between the parties or as constituting Grantee as the agent, representative, or employee of the County for any purpose. Grantee shall remain an independent contractor with respect to all services and activities performed under this Agreement. Any personnel of Grantee or other persons while engaged in the performance of any work or services required by Grantee under this Agreement will have no contractual relationship with the County, and will not be considered employees of the County. The County shall not be responsible for any claims that arise out of employment or alleged employment under the Minnesota Economic Security Law or the Workers' Compensation Act of the State of Minnesota on behalf of any personnel, including, without limitation, claims of discrimination against Grantee, its officers, agents, contractors, or employees. Grantee shall defend, indemnify and hold harmless the County, its officials, officers, agents, and employees from all such claims irrespective of any determination of any pertinent tribunal, agency, board, commission, or court. Such personnel or other persons shall neither require nor be entitled to any compensation, rights, or benefits of any kind whatsoever from the County, including, without limitation, tenure rights, medical and hospital care, sick leave, Workers' Compensation, Re-employment Compensation, disability, severance pay, and retirement benefits. 0 8. INDEMNIFICATION Grantee agrees to defend, indemnify and hold harmless, the County, its officials, officers, agents, volunteers and employees from any liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including reasonable attorney's fees, resulting directly or indirectly from any act or omission of Grantee, its contractors or subcontractors or anyone directly or indirectly employed by them, and/or any party that directly or indirectly benefits from the activities specified in this Agreement, and/or anyone for whose acts and/or omissions they may be liable in the performance of the activities specified in this Agreement and against all loss by reason of the failure of Grantee to perform any obligation under this Agreement. 9. INSURANCE In order to protect the County and those listed above under the indemnification provision, Grantee agrees at all times during the term of this Agreement and beyond such term when so required, to have and keep or cause to have and be kept in force, and to cause all contractors to do likewise, the following insurance coverages under either a purchased insurance or self-insurance program: Commercial General Liability on an occurrence basis with Contractual Liability Coverage: Limits General Aggregate $2,000,000 Products -Completed Operations Aggregate 2,000,000 Personal and Advertising Injury 1,500,000 Each Occurrence — Combined Bodily Injury and Property Damage 1,500,000 • 2. Automobile Liability — Combined single limit each occurrence for 1,500,000 bodily injury and property damage covering owned, non -owned, and hired automobiles. Workers' Compensation and Employer's Liability: a. Workers' Compensation Statutory If the contractor is based outside the State of Minnesota, coverage must apply to Minnesota laws. b. Employer's Liability. Bodily Injury by: Accident — Each accident 500,000 Disease — Policy Limit 500,000 Disease — Each Employee 500,000 4. Professional Liability — Per Claim Aggregate 1,500,000 2,000,000 The insurance must be maintained continuously for a period of two years after the termination of this Agreement. Grantee shall require that any independent contractors rendering assessment and/or clean-up activities under this Agreement furnish certificates of insurance to Grantee of the insurance coverages listed above, and provide updated certificates as coverages expire. An umbrella or excess policy over primary liability coverages is an acceptable method to provide the required insurance limits. The above establishes minimum insurance requirements. It is the sole responsibility of Grantee to detemune the need for and to procure additional insurance which may be needed in connection with this Agreement. Copies of policies shall be submitted to the County upon written request. U Grantee shall not commence work until it and any contractors have obtained the required proof of insurance which clearly evidences required insurance coverages. If Grantee fails to furnish proof coverages, if requested by the County, the County may withhold payments and/or pursue any other rights or remedy allowed under the contract, law, equity, and/or statute. 10. MERGER AND MODIFICATION It is understood and agreed that the entire Agreement between the parties is contained herein and that this Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof. All items referred to in this Agreement are incorporated or attached and are deemed to be part of this Agreement. Any alterations, variations, modifications or waivers of provisions of this Agreement shall only be valid when they have been reduced to writing as an amendment to this Agreement signed by the parties. 111u11 1► ��Til/.f1/: ► The Laws of the State of Minnesota shall govern all questions and interpretations concerning the validity and construction of this Agreement and the legal relations between the parties and performance under it. The appropriate venue and jurisdiction for any litigation will be those courts located within the County of Hennepin, State of Minnesota. Litigation, however, in the federal courts involving the parties will be in the appropriate federal court within the State of Minnesota. If any provision of this Agreement is held invalid, illegal or unenforceable, the remaining provisions will not be affected. The Remainder Of This Page Was Intentionally Left Blank • COUNTY BOARD AUTHORIZATION GRANTEE, having signed this agreement, and the Hennepin County Board of Commissioners having duly authorized this agreement on the of , 2010, and pursuant to such approval, the proper County officials having signed this agreement, the parties hereto agree to be bound by the provisions herein set forth. Reviewed by the County Attorney's COUNTY OF HENNEPIN Office STATE OF MINNESOTA By: Assistant County Attorney Chair of Its County Board Date: ATTEST: Date: By: Deputy/Clerk of County Board Richard P. Johnson, County Administrator Date: • By: Assistant County Administrator, Public Works Recommended for Approval Date: By: Director, Department of Environmental Services Date: GRANTEE Grantee warrants that the person who executed this Agreement is authorized to do so on behalf of GRANTEE as required by applicable articles, bylaws, resolutions or ordinances.* Name: CITY OF HOPKINS By: Rick Getschow, City Manager Date: *GRANTEE shall submit applicable documentation (articles, bylaws, resolutions or ordinances) that confirms the signatory's delegation of authority. This documentation shall be submitted at the time Grantee returns the Agreement to the County. Documentation is not required for a sole proprietorship. 0 5 • Exhibit A City of Hopkins Nine Mile Creek Stabilization Project Project Summary. The project site involves nearly 50 acres of city owned property and land under easement adjacent to Nine Mile Creek. Land use adjacent to the creek in the northern portion of project site is industrial and commercial, while land use in the central and southern portions of the project site is mainly residential and recreational in use. Limited sampling and analytical data has indicated the presence of contaminated sediments and debris fill, along with numerous potential contaminant sources in the immediate area of the creek in this area. Project plans include extensive work to stabilize the creek banks and re-establish vegetation to reduce sedimentation, improve water quality and restore riparian habitat and wetlands. Three Rivers Park District will construct a recreational trail along the project area, enhancing access to the SW LRT line. The applicant requests ERF assistance to conduct additional Phase II Environmental Site Assessment (ESA), development of a Response Action Plan (RAP), and associated consulting activities and MPCA fees to characterize soil and fill for contamination in areas where excavation will take place as part of the creek stabilization project. The following costs are based on a budget submitted by Grantee. Modifications must be approved in writing by the County. is Approved Budget for the Nine Mile Creek Stabilization Project Site: Activities relating to the Phase II ESA to characterize contamination along the Nine Mile Creek project, development of a RAP, and related consulting and agency fees $ 60,000.00 Total: $ 60,000.00 Required Documentation to be Submitted to Hennepin County: Phase II Environmental Site Assessment Report(s) Response Action Plan Report MPCA Approval Letters Consultant/Contractor/MPCA Invoices Annual Project Progress/Summary Report(s). A-1 0 CITY OF HOPKINS Hennepin County, Minnesota RESOLUTION NO. 2010-075 RESOLUTION APPROVING ENVIRONMENTAL INVESTIGATION GRANT AGREEMENT WHEREAS, the City Council approved applying for a Hennepin County Environmental Investigation Grant; and WHEREAS, the City was awarded a $60,000 grant from the application, and NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Hopkins, Minnesota: 1. The agreement is hereby approved. 2. The City Manager is hereby authorized and directed to execute the agreement. Adopted by the City Council of the City of Hopkins this 16`h day of November, 2010. ATTEST: Terry Obermaier, City Clerk is Eugene J. Maxwell, Mayor