CR 2012-092 Metopolitan Council Tax Base Revitilization Account Grant Sub-Recipient Agreement for Lutheran Digest Site_4M
City of Hopkins
August 21, 2012
Council Report 2012-092
METROPOLITAN COUNCIL TAX BASE REVITALIZATION ACCOUNT GRANT
SUB -RECIPIENT AGREEMENT FOR LUTHERAN DIGEST SITE
Proposed Action
Staff recommends adoption of the following motion: Approve execution of sub -recipient
agreement with Klodt Development for environmental clean-up funds for the Lutheran Digest
site.
Overview
The Livable Communities Act (LCA) Tax -Base Revitalization Account (TBRA) funds the clean-
up of polluted land for redevelopment. It focuses on projects that create jobs and revitalize
communities. In the 2011 round of TBRA grants the City of Hopkins was awarded $26,200
toward the clean-up of the vacant Lutheran Digest site as a part of the Gallery Flats
development. The funds are specifically for Phase I and Phase II environmental site
assessments, hazardous materials survey and asbestos emission control plan. The sub -
recipient agreement primarily addresses the roles and responsibilities of each party in the
distribution of the grant funds.
Primary Issues to Consider
• What does the sub -recipient agreement consist of?
Supportinq Information
• Sub -recipient Agreement
Tara Beard
Community Development Coordinator
Financial Impact: $ -0 Budgeted: Y/N Source: _PIR fund (501)
Related Documents (CIP, ERP, etc.):
Notes:
Council Report 2012-092
Page 2
Analysis of Issues
What does the sub -recipient agreement consist of?
The agreement holds the redeveloper accountable for meeting all the requirements of the
grant agreement, including:
Development of approximately 161 residential rental units and ground level
retail/restaurant space
Creating 5 FTEs
Adding $67,970 in net tax capacity
It also contains requirements that further protect the City, including insurance requirements
and the right to demand the return of the grant funds if conditions are not met.
Alternatives
The Council has the following alternatives:
• Approve execution of the sub -recipient agreement
• Deny execution of the sub -recipient agreement and relinquish TBRA funds for the
Lutheran Digest site.
SUB -RECIPIENT AGREEMENT
THIS AGREEMENT, made on or as of the day of ,
2012, 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
(hereinafter referred to as the "Redeveloper"), having its principal office at
RECITALS:
A. The Redeveloper is in the process of acquiring and redeveloping the former Lutheran
Digest property located at 31 — 9a' Avenue South within the City (the "Redevelopment
Property").
B. The Redeveloper's redevelopment of the Redevelopment Property will require and
include the investigation, assessment, removal, abatement, handling, relocation and disposal of
contaminated soils, asbestos and other hazardous materials located on the Redevelopment
Property.
C. At the request of the Redeveloper, the City applied for grant funds from the Tax Base
Revitalization Account of the Contamination Cleanup Site Investigation Grant Program for
transit -oriented development administered by the Metropolitan Council ("Council") to provide
funding for conducting Phase I and Phase II environmental assessments, preparing a Response
Action Plan, an asbestos emission control plan and a hazardous material survey as described in
the Application and Grant Agreement identified in Recital Paragraph D related to the
investigation, assessment, response action and abatement plans to be prepared and submitted for
the contamination cleanup site investigation of the Redevelopment Property (which investigation,
assessment and plan preparation are referred to herein as the "Work").
D. Pursuant to an Application to the Council (the "Application"), the City has been awarded
a Tax Base Revitalization Account Grant (the "Grant") in the amount of $26,200.00, which
Grant will be disbursed by the Council to the City pursuant to the terms and conditions of the
Metropolitan Livable Communities Act Grant Agreement attached hereto as Exhibit A (the
"Grant Agreement"). A copy of the Application is attached to the Grant Agreement.
E. The Redeveloper has agreed to pay any amount by which the cost of the Work exceeds
the Grant. Specifically, the Redeveloper has agreed to pay the "local match" amount required by
Section 2.02 of the Grant Agreement.
F. The parties desire to set forth in writing their agreement as to the disbursement of the
cAllopoMSubReeipient Agmt.KlodOevelopment.8.3.12.2
Grant from the City to the 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. Accuracy 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 timely disburse them to or for the benefit of the
Redeveloper solely for the uses and purposes for which such funds were disbursed by the
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 the Redeveloper any funds
actually received by the City pursuant to the Grant Agreement. Redeveloper shall be solely
responsible for the "local match" amount required by Section 2.02 of the Grant Agreement. The
City makes no representation or warranty concerning the availability or sufficiency of the Grant.
3. Use of Funds. The 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 the
Redeveloper in connection with the Work and otherwise in accordance with and subject to the
conditions imposed upon the City in the Grant Agreement. The Redeveloper shall take all steps
necessary to assure such use of funds through its contracts with its contractors performing the
Work.
4. The Redeveloper's Obligations. The Grant Agreement is incorporated in and
made a part of this Agreement in its entirety. The 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, the Redeveloper specifically agrees as follows:
A. Redeveloper: i) is the fee owner of all tracts or parcels of land comprising
the Redevelopment Property on which the Work is to be performed; or ii) has entered
into Purchase Agreements or Option Agreements by which Redeveloper is entitled to
acquire fee title to all parcels comprising the Redevelopment Property on which the Work
is to be performed. Redeveloper has obtained irrevocable written approval for the
performance of the Work from all owners of parcels that Redeveloper has not yet.
acquired fee title to, and Redeveloper has the legal right to perform the Work on the
Redevelopment Property. Redeveloper shall deliver to the City evidence acceptable to
the City of Redeveloper's acquisitions of fee title to the Redevelopment Property or
copies of all Purchase Agreements and Option Agreements for parcels comprising the
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aAHopcivlSubRecipient Agmt.KlodtBevelopment.8.3.12.2
Redevelopment Property to which Developer has not yet acquired fee title together with
the Owner's approvals for performance of the Work.
B. The Redeveloper shall expeditiously and diligently commence and pursue
the Work within the time frames specified in the Application and Grant Agreement. The
Redeveloper shall immediately notify the City in the event of any change in the prospects
for the timely completion of the Work.
C. All contracts for performance of the Work shall comply with the
provisions of the Grant Agreement and, specifically, Section 5.06 thereof. The
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 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).
D. In the event that the Council, pursuant to the provisions of the Grant
Agreement or otherwise, demands return of Grant funds already disbursed, the
Redeveloper shall, within ten (10) days of demand by the City, pay the City the amount
demanded by the Council.
E. The 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 the Redeveloper required by the Grant Agreement)
and permit City, County 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 the Redeveloper's project managers at
reasonable times and intervals. The 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.
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c;NHopcMSubRe6pient Agmt.KlodtDevelopment.8.3.12.2
F. The Redeveloper shall prepare and timely submit to the City and 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
Council under the Grant Agreement until and unless the Redeveloper has provided all
required documents and information to the City.
G. The City's authorization of the submission of the Application to the
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 the Redeveloper would be responsible for the payment of all
cost of the Work in excess of the Grant, including, without limitation, any required local
contribution or local match required under the Grant Agreement or any other agreement,
application or program related to the Work or the Redeveloper's activities on the
Redevelopment Property. If the City is required to actually pay any amount in connection
with the Grant or the performance of the Work, the Redeveloper shall within ten (10)
days after request by the City, and as a condition of the City's payment of such amounts,
pay or reimburse the City for such amounts.
H. The Redeveloper shall provide all certifications at the times the same are
required to be provided under the Grant Agreement.
I. The Redeveloper agrees at all times during the term of this Agreement and
for two (2) years after the termination hereof, to have and keep in force, and to require its
contractors and subcontractors to have and keep in force, the following insurance
coverage:
Commercial General Liability on an occurrence basis with Contractual Liability
Coverage:
Limits
General Aggregate $1,000,000
Personal and Advertising Injury $1,000,000
Each Occurrence —
Combined Bodily Injury and Property Damage $1,000,000
2. Automobile Liability — Combined single limit each occurrence for $1,000,000
bodily injury and property damage covering owned, non -owned,
and hired automobiles.
3. Workers' Compensation and Employer's Liability:
a. Workers' Compensation Statutory
If the contractor is based outside the State of Minnesota,
coverage must apply to Minnesota laws.
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cAHopciv\SubRecipient Agent-KlodtDevelopment.3.3.12.2
b. Employer's Liability. Bodily Injury by:
Accident — Each accident $100,000
Disease — Policy Limit $500,000
Disease — Each Employee $100,000
4. Professional Liability — Per Claim and Aggregate $1,000,000
The Redeveloper and any contractor or subcontractor performing any of the Work
under this Agreement shall furnish certificates of insurance to the City for the insurance
coverages listed above, and provide updated certificates as coverage expires. Neither the
Redeveloper nor any contractor or subcontractor shall commence the Work until the
Redeveloper and any contractor or subcontractor has obtained the required proof of
insurance which clearly evidences required insurance coverage. The 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 the
Redeveloper or the Redeveloper's contractors purchasing and maintaining in effect
insurance policies and coverages complying with the requirements stated in this
Paragraph 4. By entering into this Agreement, the City does not waive any statutory,
common law or other immunities or limitations on the City's liability and the City
specifically reserves all such immunities and limitations of liability.
J. The Redeveloper shall include in any contract, provisions that require its
contractors to comply with all applicable state and federal laws and regulations regarding
employment and workplace safety.
In accordance with the City's policies against discrimination, no person shall be
excluded from full employment rights or participation in or the benefits of any program,
service, or activity on the grounds of race, color, creed, religion, age, sex, disability,
marital status, sexual orientation, public assistance status, or national origin; and no
person who is protected by applicable Federal or State laws, rules, or regulations against
discrimination shall be otherwise subjected to discrimination.
5. Disbursement Procedures.
A. The 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 Council, the
City and the Grant Agreement, and the City shall forward the same to the Council in -the
manner and upon the schedule set forth in the Grant Agreement. The Redeveloper shall
submit such other documentation as the City or Council may require relative to costs of
the Work.
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cAHopciv\SubRecipient Agmt.KlodtDevelopment.83.12 7
B. Payment requests may be submitted no more than monthly and shall be
submitted on or before the first day of the month.
C. Upon the City's receipt of funds from the Council, the City shall forward
the same to the Redeveloper or the contractor designated by the Redeveloper, provided (i)
the 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. Indemnity. The Redeveloper hereby releases and agrees to protect, indemnify,
defend and hold harmless the City, the 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, the
Redeveloper's default under this Agreement and/or the performance or nonperformance of the
Work. The 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. The Redeveloper further acknowledges
and agrees that the foregoing agreement to indemnify, defend and hold the City harmless shall
include indemnification against any Liabilities of the City arising under the Grant Agreement.
The Redeveloper further agrees to keep the Redevelopment Property free from
any Liabilities arising out of or related to the performance of the Work, including any liabilities
related to payment for the cost of the Work or breach of any obligations of the Redeveloper under
this Agreement.
7. Independent Contractor. The Redeveloper shall select the means, method, and
manner of performing the Work. Nothing is intended or should be construed in any manner as
creating or establishing the relationship of partners or joint venturers between the City and the
Redeveloper or as constituting the Redeveloper as the agent, representative, or employee of the
City for any purpose or in any manner whatsoever. The Redeveloper is to be and shall remain an
independent contractor with respect to all services and activities described in this Agreement.
Any and all personnel of the Redeveloper or other persons while engaged in the performance of
any work or services required by the Redeveloper 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 may or might arise
under the Minnesota Economic Security Law or the Workers' Compensation Act of the State of
Minnesota on behalf of said personnel, arising out of employment or alleged employment
including without limitation, claims of discrimination against the Redeveloper, its officers,
agents, contractors, or employees shall in no way be the responsibility of the City. The
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c:UlopcivlsubRecipient Agmt.KlodtDevetopment.8.3.12.2
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. The 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
$250.00 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 the 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 the 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
the Redeveloper, except that the Redeveloper shall be given an opportunity to cure as 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 the 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
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aAHopciv\SubRecipient Agmt.KlodtDevelapment.8.3.12.2
Copy to:
Mr. Jeremy S. Steiner
Steiner & Curtiss, P.A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, MN 55343
If to the Redeveloper:
Copy to:
10. Miscellaneous.
A. Governinm 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 Aueement, This Agreement contains the entire agreement of the
parties relating to the subject matter hereof and supersedes all prior agreements and
understandings with respect to such subject matter, and the parties hereto have made no
agreements, representations or warranties relating to the subject matter of this Agreement
which are not set forth herein.
C. Amendments. No amendment or modification 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
8
c,AHopcivlSubRecipient Agmt.KlodtDevelopment.8.3.12.2
or as to any act other than that specifically waived.
E. Assignment. This Agreement shall not be assignable, in whole or in part,
by either party without the prior written consent of the other party.
F. Counterparts. This Agreement may be simultaneously executed in any
number of counterparts, and such counterparts executed and delivered, each as an
original, shall constitute but one and the same instrument.
G. Severability. To the extent any provision 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 hereto is
incorporated herein by reference. The captions and paragraph headings herein are for
convenience of reference only and shall not affect the construction or interpretation of
this Agreement. Should any provision of this Agreement require judicial interpretation,
it is agreed that the court interpreting or construing the same shall not apply a
presumption that the terms hereof shall be more strictly construed against one party by
reason of the rule of construction that a document is to be construed more strictly against
the party who itself or through its agent prepared the same, it being agreed that the agents
of both parties have participated in the preparation hereof.
I. Binding 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 the 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.
SEE PAGE 10 FOR SIGNATURES
9
c:\HopcivlSubRecipient Agmt.HIodtDevelopment.8.3.12.2
REDEVELOPER: CITY:
Its
10
c:VHopciv\SubRecipient Agmt.KlodtDevelopment.83.12.2
CITY OF HOPKINS
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EXHIBIT A
TAX BASE REVITALIZATION ACCOUNT
CONTAMINATION CLEANUP SITE INVESTIGATION GRANT PROGAM
GRANTEE:
City of Hopkins
GRANT NO. 8GO12-011
PROJECT:
Lutheran Digest
GRANT AMOUNT:
$26,200.00
FUNDING CYCLE: 2012 Round 1
COUNCIL ACTION:
June 27, 2012
EXPIRATION DATE: June 30, 2013
METROPOLITAN LIVABLE COMMUNITIES ACT
GRANT AGREEMENT
THIS GRANT AGREEMENT ("Agreement's is made and entered into by the Metropolitan
Council C 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 Communities Act ("LCA") 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 Bald Revitalization Account and require the Council to use the
fiords 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 Grantee applied for contamination cleanup site investigation grant funds to
determine the scope and severity of contamination associated with a redevelopment site with
suspected or perceived contamination and to develop a cleanup plan; 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
understanding that the Project identified in the application will proceed to completion in a timely
manner and all grant funds will be expended prior to the "Expiration Date" identified above.
Page 1 of 8 Pages
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TAX BASE REVITALIZATION ACCOUNT
CONTAMINATION CLEANUP SITE INVESTIGATION GRANT PROGAM
6Vy, "� 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. DEF MTIONS
1.01. Definition of Terms. The terms defined in this section have the meanings given them in
this section unless otherwise provided or indicated by the context.
(a) Couna Action. "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 contamination cleanup
site investigation grant funds.
(b) Development Authority. "Development Authority"' means a statutory or home rule charter
city, a housing and redevelopment authority, an economic development authority, br a port
authority in the metropolitan area as defined by Minnesota Statutes section 473.121,
subdivision 2.
(c) Municipality. "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.
(d) Participating Municipality. "Participating Municipality" means a statutory or home rule
s' 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.
(e) Project Unless clearly indicated otherwise by the context of a specific provision of this
Agreement, "Project" means the contamination cleanup site investigation at the development
or redevelopment Site identified in the application for Tax Base Revitalization Account
funds for which grant funds were requested.
M Project Costs. "Project Costs" means the eligible costs of the contamination cleanup site
investigation activities for which the grant funds must be used pursuant to Section 2.03 of
this Agreement.
(g) Site. `.`Site" means the polluted land proposed for contamination cleanup site investigation
by the Grantee and located both within the metropolitan area and within -a Participating
Municipality.
H. 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
Page 2 of 8 Pages
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TAX BASE REVITALIZATION ACCOUNT .
CONTAMINATION CLEANUP SITE INVESTIGATION GRANT PROGAM
Base Revitalization Account funds made available to the Council may result in a like reduction
in the Grant Amount made available to -the Grantee. 0
2.02. Twenty -Five Percent Local Match. The Grant Amount provided to the Grantee under
this Agreement may be used to pay up to seventy-five percent (759/6) of the total eligible Project
Costs. The Grantee shall match the Grant Amount received from the Council 'on at least a one -
for -three basis. The matching funds shall be identified in the progress and final reports required
under Section 3.03.
2.03. Authorized Use of Grant Funds. The Grant Amount made available to the Grantee
under this Agreement shall be used only for contamination cleanup site investigation at the Site
described in the application for Tax Base Revitalization Account funds. A Project summary that
identifies eligible uses of the grant funds as approved by the Council is attached to and
incorporated into this Agreement as Attachment A. Grant funds must be used for:
(a) Conducting Phase I and Phase II environmental site assessments; or
(b) Preparing a Response Action Plan ("RAP") developed in conjunction with the Minnesota
Pollution Control Agency for hazardous waste, hazardous substance; pollutant or
contaminant, or a Development Response Action Plan C DRAP'� developed in conjunction
with the Minnesota Pollution Control Agency for petroletim; or
(c) Preparing an asbestos. abatement plan that meets the federal Asbestos Hazard Emergency
Response Act ("AHERA") and Minnesota Department of Health standards including the =,
standards for inspecting and assessing asbestos -containing' materials in Minnesota Rules
parts 4620.3000 through. 4620.3598 and 4620.3724; or
(d) Preparing a lead-based paint abatement plan that meets Minnesota Department of Health
standards in Minnesota Rules part 4761.2570 and the federal Toxic Substances Control Act
("TSCA").
2.04. Ineligible Uses. Grant funds must be used for costs directly associated with the specific
contamination cleanup site investigation activities for which the grant funds were awarded and
shall not be used for "soft costs" such as: administrative overhead; travel expenses; legal fees;
insurance; bonds; permits, licenses or authorization fees; costs associated with preparing grant
proposals or applications; project coordination costs; operating expenses; planning costs; and
prorated lease and salary costs. Grant funds may not be used for investigation costs incurred
prior to -the date of the "Council Action" identified at Page 1 of this Agreement, of for
contamination cleanup or abatement costs. A- detailed list of ineligible and eligible costs is
available from the Council's Livable Communities program office. Grant funds also shall not be
used by the Grantee or others to supplant or replace: (a) grant or loan funds obtained for the
Project from other. sources; or (b) Grantee contributions to the Project, including financial
assistance or other resources of the Grantee. The Council shall bear no responsibility for cost
overruns which may be incurred by the Grantee or, others in the implementation,or performance
of the Project activities.
Page 3 of 8 Pages
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TAX BASE REVITALIZATION ACCOUNT
CONTAMINATION CLEANUP SITE INVESTIGATION GRANT PROGAM
2.05. Restrictions on Loans by Subgrantees.. The Grantee shall not permit any subgrantee or
subrecipient to use the grant funds for loans to any subrecipient at any tier. The requirements of
this Section -2.05 shall be included in all subgrants.
2.06. .Project Changes. The Grantee must promptly inform the Council in writing of any.
significant changes to the Project for which the grant funds were awarded, as well as any
potential changes to -grant -funded. activities described in Attachment A. Failure to inform the
Council of any significant. changes to the- Project or significant changes to grant -funded
components of the Project, and use of grant funds for ineligible or unauthorized purposes, will
jeopardize the Grantee's eligibility for future LCA awards. Grant funds will not be disbursed
prior to Council approval of significant changes to either the Project or grant -funded activities
described in Attachment A.
2.07. 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 Expiration
Date identified at Page 1 of this. Agreement; and any grant funds that are not used for the
authorized -purposes. For the purposes of this Agreement, grant funds are "expended" prior to
the Expiration Date if the Grantee pays or is obligated to pay. for expenses of eligible Project
activities.that occurred prior to the Expiration Date and the eligible expenses were incurred prior
to the Expiration 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 or as otherwise permitted by law.
2.0& . Payment Request Forms and Disbursements. The Council will disburse grant funds in
response to. written payment requests submitted by the Grantee and reviewed and approved by
the Council's authorized agent. Written payment requests shall be made using payment request
forms, the form and content of which will be determined by the Council. Payment request and
other repotting forms.will be provided to the Grantee by the Council. The Council will disburse
grant funds on a reimbursement basis or a "cost incurred" basis. The Grantee must provide with
its written payment requests documentation that shows grant -funded Project activities actually
have been completed. Subject to verification of each payment ,request form (and its
documentation) 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 and
verified payinent request form.
2:09. Effect of Grant. Issuance of this grant neither implies any Council responsibility for any
contamination at the Site nor imposes any obligation on the Council to participate in the cleanup
of any Site contamination. By awarding grant funds to the Grantee for the Project and executing
this Agreement, the Council assumes no responsibility for: (a) any damage to persons, property,
or the environment caused by any contamination cleanup site investigation activities or for any
subsequent Site cleanup activities or implementation of the Project; or (b) determining whether
intended uses of the Site identified in the grant application or potential future uses of the Site,
including any residential uses, are suitable for the Site.
Page 4 of 8 Pages
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TAX BASE REVITALIZATION ACCOUNT
CONTAMINATION CLEANUP SITE INVESTIGATION GRANT PROGAM
M. 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 Sections 4.01
and 4.02, such accounts and records shall be kept and maintained by the Grantee for a period of
six (6) years following the completion of the Project activities described in Attachment A or six
(6) years following the expenditure of the grant funds; whichever occurs earlier. Accounting
methods shall be in accordance with generally accepted accounting principles.
3.02. Audios.. 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 .pracedures 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.
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 payment request forms (with- proper documentation) required under
Section _2.08 will constitute periodic status reports. The Grantee also must complete and submit .
to the Council a grant activity closeout report. The closeout report form, must be submitted.
within 120 days after the expiration or termination of this Agreement, whichever occurs earlier. .
Within 120'.days after the Expiration Date, the Grantee must complete and submit to the Council
a certification of expenditures ,of funds form signed by the Grantee's chief financial officer or
finance director.: The:form and content of the closeout report and certification form will be
determined by the Council. - The Council may require the Grantee to submit a progress report
when -cleanup site investigation activities are occurring and a final Project report when cleanup site
investigation work is completed. 'The forria and content of the written reports will be determined
by the Council. The reporting requirements of Sections 3.03 and 3.04 shall survive. the
expiration or termination of this Agreement.
3.04. Environmental Investigation Documents. Upon completion of the .contamination
cleanup site -investigation, the Grantee will submit to the Council a copy of the environmental
site assessment documents including .but. not limited to Phase I environmental site assessment,
Phase H environmental site -.assessment work plan, Phase II investigation report,. focused
feasibility study (if more than one remedy is proposed:for Minnesota Pollution Control Agency
review) and a Response Action Plan or Development Response Action Plan and addenda (if
any), asbestos or hazardous materials surveys and asbestos or hazardous wastes management
plan and approval of the Response Action Plan by the Minnesota Pollution Control Agency
Voluntary Investigation and Cleanup Program and/or approval of the Development Response
Action Plan by the Minnesota Pollution Control Agency Petroleum Brownfields Program (" PBP' ).
Page 5 of 8 Pages
TAX BASE REVITALIZATION ACCOUNT
CONTAMINATION CLEANUP SITE INVESTIGATION GRANT PROGAM
IV. AGREEMENT TERM
.4.01. Term. This Agreement is effective upon execution of the Agreement by the Council.
Unless terminated pursuant to Section 4,02, this Agreement expires on the Expiration Date
identified at Page 1 of this Agreement. ALL GRANT FUNDS NOT EXPENDED BY THE
GRANTEE PRIOR TO THE EXPIRATION DATE SHALL REVERT TO THE COUNCIL.
4.02. '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
breachof this Agreement. If this Agreement is terminated prior to the Expiration 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 termination. 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.
4.03. Amendments and Extension. The Council and the Grantee may amend .this Agreement
by mutual agreement. Amendments of this Agreement shall be effective only on the execution of
written amendments signed by authorized representatives of the Council and the Grantee.
! r, Contamination cleanup site investigations must be completed no later than the "Expiration Date,
identified at Page 1 of this Agreement. THE EXPIRATION DATE MAY NOT BE AMENDED
OR EXTENDED.
V. GENERAL PROVISIONS
5.01. Equal Opportunity. The Grantee agrees it will not discriminate against any employee
or applicant for.employment because of race, color, creed, religion, national origin, sex, marital
status, status with regard to public assistance, membership or activity in a local civil rights
commission, disability, sexual orientation or age and will take affirmative action to insure
applicants and employees are treated equally with respect to all aspects of employment, rates of
pay and other forms of compensation, and selection for training.
5.02. Conflict of Interest. The members, officers and employees of the Grantee shall comply
with all applicable state statutory and regulatory conflict of interest laws and provisions.
5.03.. Liability. Subject to the limitations provided in Minnesota Statutes chapter 466, to the
fullest extent permitted by law, the Grantee shall defend, indemnify and hold harmless the .
Council and its members, employees and agents from and against all claims, damages, losses and
expenses, including but not limited to attorneys' fees, arising out of or resulting from the 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. Claims included in this
indemnification include, without limitation, any claims asserted pursuant to the Minnesota
Environmental Response and Liability Act (MERLA), Minnesota Statutes chapter 11513, the
(1-190
Page 6 of 8 Pages
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. TAX BASE REVITALIZATION ACCOUNT
CONTAMINATION CLEANUP SITE INVESTIGATION GRANT PROGAM
federal Comprehensive Environmental Response, Compensation, and Liability Act of 1980
(CBRCLA) as amended, 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
otherwisereduce any other right or obligation of indemnity which otherwise would exist between .
the Council and the Grantee. The provisions of this section shall survive the expiration or
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.
5.04. Acknowledgments and Signage. The Grantee will 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 will contain the following or comparable 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 will ensure the
above acknowledgment language, or alternative language approved by the Council's authorized
agent, is included on all signs (if any) located at the Project site that identify Project funding
partners or entities providing financial support for the Project. The acknowledgments and
•signage should refer to the "Metropolitan Council" (not "Met Council" or "Metro Council").
5.05. 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. The Grantee and its
developer(s), if any, must comply with all applicable licensing, permitting, bonding, authorization
and approval requirements of federal, state and local governmental and regulatory agencies,
including conservation districts.
5.06: Subgrantees, Contractors and Subcontractors. The Grantee shall include in any
subgrant, contract or subcontract for Project activities appropriate provisions to ensure
subgrantee, 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 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.
5.07. Stormwater'Discharge. and Water Management Plan Requirements. If any grant
funds are used for urban site redevelopment, the Granted shall at such redevelopment site meet or
require to be met all 'applicable requirements of:
(a) Federal and state.laws relating to stormwater discharges including, without limitation, any
applicable requirements of Code of Federal Regulations, Title 40, parts 122 and 123; and
Page 7 of 8 Pages
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TAX BASE REVITALIZATION ACCOUNT
CONTAMINATION -CLEANUP SITE INVESTIGATION GRANT PROGAM
0. (b) The Council's 2030 Water Resources Management Policy Plan and the local water
management plan for the jurisdiction within which the redevelopment site is located.
5.08. Authorized Agent. Payment request forms, written reports and correspondence
submitted to the Council pursuant to this Agreement shall be directed to:
Metropolitan Council
Attn: LCA Grants Administration
390 Robert Street North
Saint Paul, Minnesota 55101-1805
5.09. 'Nob -Assignment. Minnesota Statutes section 473.252, subdivision 3 requires the
Council to distribute grant funds. to eligible "municipalities," metropolitan -area counties or
"development authorities" for projects in municipalities participating in the Local Housing
fneentivea Account program. Accordingly, this Agreement is not assignable and shall not be
assigned by -the Grantee. -
5.10. 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 Agreement on the
Grantee's and the Council's behalf respectively and that this Agreement 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.
Y OlC1 HOPKINS METROPOLITAN COUNCIL
By:
Name: onorable Eugene Max ell Guy Peterson, Director
Title: or Community Development Division
Date: Date:
M
Manager
TBRA INVESTIGATE TEMPLATE 2C'.2
Page 8 of 8 Pages
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ATTACHMENT A
PROJECT SUMMARY
This attachment comprises this page and the succeeding page(s) which contain(s) a summary of
the Project identified in the application for Tax Base .Revitalization Account contamination
cleanup site investigation 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 Agreement. The summary 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 amounts;'or minor changes in the proposed Project that occurred subsequent
to application submission..: The application is incorporated into this Agteement by reference and .
is made apart of this Agreement a,%. 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 Project 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 Agreement; (3) the Project summary; and (4) the grant
application.
(a
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Project
.. '
i
Project Summary
Subgrant *: SGO12-011
Project Name: Lutheran Digest Type: Contaminated Site
Investigation
Project Location: 31 - 9th Avenue South, Hopkins
Council District: 3 - Jennifer Munt
Project Description:
$26,200 in TBRA funding for Phase I and Phase II environmental site assessments,
hazardous materials survey and asbestos emission control plan and development of a
Response.Action Plan (RAP) for a 0.6 -acre commercial with a vacant office building.
Potential contaminants of concern Identified include asbestos in buried demolition debris
below the existing building.
Funding:
Total Estimated Investigation
$35,000
Cost
Amount Re uested
$26.,250
Amount Recommended
$26,200
Use of Funds
Phase I and phase II environmental site assessments,
hazardous materials survey and asbestos emission control
Ian and development of a RAP.
Deliverables:
Potential benefits include the development of approximately 161 market rate and affordable rental
units and ground level retail/restaurant space. The project site Is expected be combined with an
adjacent parcel (the former Park Nicollet clinic).
Increase In annual net tax capacity $67,970
Jobs 5 FTE
Affordable housing TBD
Development Timeline:
End Date
Completion of Phase I and Phase II Environmental Site Assessments (ESA),
hazardous materials survey and asbestos emission control plan and
development of a RAP for approval by MPCA, On or before
A Phase II Investigation Work Plan approved by the MPGA, dated prior to the 6/30/2013
Phase II.ESA work, must accompany all requests for reimbursements for
costs associated with the Phase II ESA. _ _ _