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HomeMy WebLinkAbout2016-020 EDARCommissioner Dan Ryan introduced the following resolution and moved its adoption: EDA RESOLUTION NO. 2016-20 RESOLUTION APPROVING AND AUTHORIZING THE EXECUTION OF A HENNEPIN COUNTY ENVIRONMENTAL RESPONSE FUND GRANT NO. A165669 AND A SUB GRANT AGREEMENTS BETWEEN THE EDA AND MBC II, LLC (HYDE DEVELOPMENT) IN CONJUNCTION WITH THE FORMER HOWE FERTILIZER SITE CLEAN-UP (3101 - 49TH AVENUE NORTH) WHEREAS, Hennepin County (the "County") has approved the application of the Economic Development Authority of Brooklyn Center, Minnesota (the "EDA") for a grant to be used for the implementation of a Corrective Action Plan and Response Action Plan, associated consulting activities and agency fees at the former Howe Fertilizer plant, located at 3101 - 49t1' Avenue North (formerly identified or addressed as 4821 Xerxes and 4823-1/2 Osseo Road) in Brooklyn Center, Minnesota (the "Subject Site"); and WHEREAS, the County has submitted for approval and execution a proposed agreement for such grant entitled "Environmental Response Fund Grant Agreement between the Economic Development Authority of Brooklyn Center, Minnesota and Hennepin County Department of Environmental Services - Contract No. A165669 (the "Grant Contract"); and WHEREAS, MBC II, LLC, as owner of the Subject Site, has proposed to enter into a Sub-Grant Agreement for the Grant Contract under which MBC II, LLC (a/k/a Hyde Development), as Sub-Grantee, will assume the responsibilities of the EDA under the Grant Contract (the "Sub-Grant Agreement"); and WHEREAS, the EDA has determined that it is reasonable and appropriate and in the best interests of the public that the EDA enter into such Grant Contract with Hennepin County and such Sub-Grant Agreement with MBC II, LLC. NOW, THEREFORE, BE IT RESOLVED by the Economic Development Authority in and for the City of Brooklyn Center: 1.That the Grant Contract and the Sub-Grant Agreement are approved. 2.The President and Executive Director are authorized and directed to execute the Grant Contract and Sub-Grant Agreement. 3. The Executive Director is authorized and directed to take any and all additional steps necessary or convenient to effect the terms of the Grant Contract and the Sub-Grant Agreement. EDA RESOLUTION NO. 2016-20 September 26, 2016 Date President The motion for the adoption of the foregoing resolution was duly seconded by member April Graves and upon vote being taken thereon, the following voted in favor thereof: Tim Willson, April Graves, Kris Lawrence-Anderson, Lin Myszkowski, Dan Ryan and the following voted against the same: whereupon said resolution was declared duly passed and adopted. EDA RESOLUTION NO. 2016-20 SUB-GRANT AGREEMENT [Hennepin County Department of Environmental Services Contract No. Al 65669] THIS AGREEMENT is made as of this _______ day of ,2016, by and between the Economic Development Authority of Brooklyn Center, Minnesota, a public body corporate and politic under the laws of Minnesota (the "Grantee"), and MBC II, LLC, a Minnesota limited liability company ("Sub-Grantee"): WHEREAS, Grantee has entered into a grant contract with the County of Hennepin by its Department of Environmental Services ("County"), entitled "Environmental Response Fund Grant Agreement between the Economic Development Authority of Brooklyn Center, Minnesota and Hennepin County Department of Environmental Services" - Contract No. A165669 (the "Grant Contract"), a copy of which is attached hereto as Exhibit One, and hereby made a part hereof, and WHEREAS, the Grant Contract provides that the County shall grant to Grantee a sum not to exceed Sixty Thousand and No/100 Dollars ($60,000.00), which funds shall be used to perform the duties and tasks specified in the Grant Contract; and WHEREAS, the Grantee will be passing the funds provided pursuant to the Grant Contract through to Sub-Grantee; and WHEREAS, the Grantee and Sub-Grantee have agreed for Sub-Grantee to assume certain of the duties and responsibilities of Grantee under the Grant Contract in consideration of receiving funds provided for in the Grant Contract and subject to the terms, conditions, and limitations set forth therein. NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein, the parties hereto covenant and agree as follows: 1.Grantee will forward to Sub-Grantee funds received under the Grant Contract upon receipt and upon the continuing compliance by Sub-grantee with its obligations hereunder and under the Grant Contract. Grantee shall not be obligated to reimburse Sub-Grantee for any amounts in excess of funds received by Grantee under the Grant Contract. If the County requires reimbursement of funds advanced under the Grant Contract, Sub-Grantee will promptly reimburse such funds to Grantee upon demand. 2.Sub-Grantee will perform and satisfy all obligations of Grantee under the Grant Contract, except those that, by their nature, can only be performed by Grantee. Sub-Grantee will provide any information or assistance requested by Grantee for the purpose of satisfying the obligations of the Grant Contract that, by their nature, can only be performed by Grantee. Specifically, but without limiting the foregoing, Sub-Grantee will perform all of the following: (a) Sub-Grantee shall keep and maintain all records required by section 2 of the Grant Contract. 1 of 4 ERF No. A165669 EDA RESOLUTION NO. 2016-20 (b)Sub-Grantee shall submit payment request forms in accordance with section 3 of the Grant Contract. (c)Sub-Grantee shall submit the reports required by section 4 of the Grant Contract. (d) Sub-Grantee shall comply, and shall require its contractors and subcontractors to comply, with all requirements of sections 5, 9 and 12 of the Grant Contract. 3.Sub-Grantee may neither assign nor transfer any rights or obligations under this Agreement without the prior consent of the Grantee and an Assignment Agreement executed and approved by the parties. 4.Any amendment to this Agreement must be in writing and will not be effective until it has been executed and approved by the parties. 5.If Grantee fails to enforce any provisions of this Agreement, such failure does not waive the provision or Grantee's right to enforce it. 6.This Agreement contains all negotiations and agreements between Grantee and Sub- Grantee. No other understanding, agreements or understandings regarding the Grant Contract, or this Agreement, may be used to bind either party. 7.Sub-Grantee will defend, indemnify, save, and hold harmless the County and Grantee, their officers, agents, and employees, from any claims or causes of action, including attorney's fees incurred by Grantee, arising from the performance of this Agreement or failure to perform any obligation under this Agreement by Sub-Grantee, or its officers, agents or employees. 8.Sub-Grantee's books, records, documents and accounting procedures and practices relevant to this Agreement are subject to examination by the County, the State of Minnesota and/or the state auditor or legislative auditor, as appropriate, for a minimum of six (6) years from the end of this Agreement. 9.Sub-Grantee shall comply with applicable provisions of the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13. If Sub-Grantee receives a request to release data referred to in this paragraph, Sub-Grantee must immediately notify Grantee. Grantee will give Sub-Grantee instructions concerning the release of the data to the requesting party, prior to such release. 10.Sub-Grantee certifies that it is in compliance with Minnesota Statutes, Section 176.181, Subd. 2, pertaining to workers' compensation insurance coverage. 11. Any publicity regarding the subject matter of this Grant Agreement must identify the County as the sponsoring agency and must not be released without prior written approval from the County's authorized representative as specified in the Grant Contract. Publicity shall include 2 of 4 ERF No. A165669 EDA RESOLUTION NO. 2016-20 information identified in Paragraph 12 of the Grant Contract. Sub-Grantee must not claim that the County or Grantee endorses its products or services. 12.Sub-Grantee shall select the means, method, and manner of performing the Project as defined in the Grant Contract. 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 Sub- Grantee as the agent, representative, or employee of the Grantee for any purpose. Sub-Grantee shall remain an independent contractor with respect to all services and activities performed under this Agreement. Any personnel of Sub-Grantee or other persons while engaged in the performance of any work or services required by Sub-Grantee under this Agreement will have no contractual relationship with the Grantee and will not be considered employees of the Grantee. The Grantee 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 Sub-Grantee, its officers, agents, contractors or employees. Sub-Grantee shall defend, indemnify and hold harmless the Grantee and the County, their 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 Grantee, including, without limitation, tenure rights, medical and hospital care, sick leave, Workers' Compensation, Re- employment Compensation, disability, severance pay, and retirement benefits. 13.The law governing the obligations of this Agreement and the venue for all legal proceedings associated therewith shall be in accordance with Paragraph 11 of the Grant Contract. 14. This Agreement is subject to termination in accordance with Paragraph 6 of the Grant Contract. IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of September 26, 2016, ECONOMIC DEVELOPMENT AUTHORITY of BROOKLYN CENTER, MINNESOTA By: Its President And by: Its Executive Director 3 of ERF No. A165669 EDA RESOLUTION NO. 2016-20 MBC II, LLC a Minnesota limited liability company By: Paul Hyde Its Chief Executive Officer 4 of 4 ERF No. A165669 EDA RESOLUTION NO. 2016-20 BAR 16-0250 Contract No. A165669 ENVIRONMENTAL RESPONSE FUND GRANT AGREEMENT BETWEEN THE ECONOMIC DEVELOPMENT AUTHORITY OF BROOKLYN CENTER, MINNESOTA AND HENNEPIN COUNTY ENVIRONMENT AND ENERGY DEPARTMENT This Agreement is between the County of Hennepin, State of Minnesota ("County") at A2300 Government Center, Minneapolis, MN 55487 by its Environment and Energy Department ("Department") and the Economic Development Authority of Brooklyn Center, Minnesota ("Grantee") with offices located at 6301 Shingle Creek Parkway, Brooklyn Center, Minnesota, 55430. Grantee has submitted an application to the County for a grant to be used for assistance with groundwater monitoring required through 2017, associated consulting activities including report preparation and sample collection and analysis, and agency fees at the Former Howe Fertilizer project site located at 3101 49th Avenue North (formerly identified or addressed as 4821 Xerxes and 4823-1/2 Osseo Road) in Brooklyn Center, Minnesota The application is incorporated into this Agreement by reference. The parties agree as follows: I. GRANT AMOUNT AND COMPLETION The County shall grant to Grantee a sum not to exceed Sixty Thousand dollars ($60,000.00) ("ERF Grant")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 Exhibit A and in the application, attached as Exhibit B, are referred as the "Project". Administrative costs incurred by Grantee are not eligible for reimbursement. Exhibits A and B are attached and incorporated by this reference. Grantee shall complete the Project within two (2) years 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. The final request for disbursement must be submitted within six (6) months of the expiration date of this Agreement. 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. If the County finds that there has been a violation of any state, federal or local law, the County may upon written notice immediately cancel this Agreement in its entirety and may withhold or delay payment. In the event of a decision to withhold or delay payment, the County shall furnish prior written notice to Grantee specifically identifying the reason for withholding or delaying such payment. 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. 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 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 1,500,000 2,000,000Aggregate 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 determine the need for and to procure additional insurance which may be needed in connection with this Agreement. Grantee and their contractors shall not commence work until they have obtained required insurance and filed with the Grantee properly executed Certificates of Insurance establishing compliance. The certificate(s) must name the Grantee as the certificate holder and Hennepin County as an additional insured for the commercial general liability coverage(s) for all operations covered under the Agreement and must include the project name and ERF contract number. Grantee shall immediately notify County of any cancellations or reduction of insurance coverage. Grantee shall provide copies of insurance certificates to the County. 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. 11.MINNESOTA LAWS GOVERN 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. 12.ACKNOWLEDGMENTS The Grantee shall acknowledge the financial assistance provided by the County in promotional materials, press releases, reports and publications relating to the Project activities described in Exhibit A which are funded in whole or in part with the grant funds. The acknowledgment should contain the following language: Financing for this project was provided in part by the Hennepin County Environmental Response Fund. Until the Project activities funded by this Agreement are completed, the Grantee shall ensure the above acknowledgment language, or alterative language approved the County, is included on all signs located at the Project or construction sites that identify Project funding partners or entities providing financial support for the project. Until the Project activities funded by this Agreement are completed and for one year after that date, the Grantee shall provide advance notice to the County, including an invitation to the appropriate County Commissioner's office, of any public events related to the Project. 13.HENNEPIN COUNTY PERSONAL PROPERTY TAX AND PROPERTY TAX Grantee shall require the grant recipient to affirm that it and its officers have paid all Hennepin County personal property taxes and property taxes due on all of its Hennepin County properties for taxes owed on or before December 31, 2015. If the County finds that property taxes have not been paid by grant recipient, grant recipient's owner and grant recipient's board of directors (if any), County may refuse to disburse funds or require the return of all or part of the funds already disbursed pursuant to section 6 of this Agreement. 14. USE OF ERF GRANT AS A LOAN An ERF Grant from County to Grantee may not be disbursed by Grantee to any entity as a loan. 4 COUNTY ADMINISTRATIVE AUTHORIZATION GRANTEE, having signed this agreement, and the Hennepin County Board of Commissioners having duly authorized this agreement on the 12111 of July 2016, 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 Office COUNTY OF HENNEPIN STATE OF MINNESOTA By: County Administrator Date: By: Assistant County Administrator, Public Works Date: Recommended for Approval By: Acting Director, Environment and Energy Department 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 ordi nances .* Name: ECONOMIC DEVELOPMENT AUTHORITY of BROOKLYN CENTER, MINNESOTA By: Tim Willson, President Date: Assistant County Attorney 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. Exhibit A Former Howe Fertilizer Project Summary: The project site was occupied by the former Howe Fertilizer company, which caused a release of agricultural chemicals at the site requiring cleanup by the Minnesota Department of Agriculture. The property is owned by the developer, MBC II LLC who has constructed a 60,000 square foot office/warehouse building. Historical use include manufacturing, bulk petroleum storage, farming, and most notably the production, storage, and distribution of agricultural chemicals, which occurred from the 1940s until 2006. A 1979 fire resulted in the release of various agricultural chemicals. The site's contaminants of concern are polynuclear aromatic hydrocarbons, volatile organic chemicals, metals (mercury, arsenic, chromium, silver), diesel range organics, various pesticides and herbicides, and dioxins. Concentrations ranges include results below and above industrial soil criteria; Site Specific Cleanup Goals have been set for the pesticides/herbicides. Response Action Plan implementation has been completed on site. The only remaining work on site is groundwater monitoring and reporting required by the Minnesota Department of Agriculture (MDA) which is projected to continue until the end of 2017. The applicant requests ERF assistance with groundwater monitoring required through 2017, associated consulting activities including report preparation and sample collection and analysis, and agency fees. The following costs are based on a budget submitted by Grantee. Modifications must be approved in writing by the County. Approved Budget for the Former Howe Fertilizer Project Site: Activities relating to groundwater monitoring required through 2017, associated consulting activities including report preparation, sample collection and analysis, and agency fees $60,000.00 Total: $60,000.00 Required Documentation to be Submitted to Hennepin County: Insurance Certificates with project name and ERF contract number [see SECTION 9. INSURANCE] Groundwater Monitoring Reports MDA Approval Letters Consultant/Contractor Invoices (include time period covered by invoice and documentation supporting expenses, including subcontractor and analytical invoices - include unit rates and quantities, subcontractor markup limited to 10% or less) Agency Invoices Annual Project Progress/Summary Report(s). ON Exhibit B ERF Application Former Howe Fertilizer B-i