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HomeMy WebLinkAbout2009-106-12/01/2009-AUTHORIZING A GRANT AGREEMENT WITH THE COLORADO HOUSING AND FINANCE AUTHORITY, TO RECEIVE GRANT FUND RESOLUTION 2009-106 OF THE COUNCIL OF THE CITY OF FORT COLLINS AUTHORIZING A GRANT AGREEMENT WITH THE COLORADO HOUSING AND FINANCE AUTHORITY, TO RECEIVE GRANT FUNDS FOR THE ENVIRONMENTAL CLEANUP PORTION OF THE FORT COLLINS MUSEUM AND DISCOVERY SCIENCE CENTER JOINT FACILITY PROJECT WHEREAS, the City has applied for and been awarded $200,000 in grant funds from the Colorado Brownfields Revolving Loan Fund,through the Colorado Housing and Finance Authority (CHFA), (the`Brownfields Grant")to be used for environmental cleanup related to construction of the new Fort Collins Museum and Discovery Science Center facility (the"Project'); and WHEREAS, the Brownfields Grant funds are to be used for the removal of environmental hazards on the Project site; and WHEREAS,to receive the grant funds,the City must execute a Grant Agreement(the"Grant Agreement')with the CHFA, the basic form of which is attached as Exhibit"A" and incorporated herein by reference; and WHEREAS, the City is authorized, under Article II, Section 16 of the City Charter and Section 29-1-203,C.R.S.,to enter into intergovernmental agreements,such as the Grant Agreement, to provide any function, service or facility; and WHEREAS,City staff recommends that the City Council authorize the Grant Agreement as described herein. NOW, THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF FORT COLLINS that the Mayor is hereby authorized to enter into a Grant Agreement with the Colorado Housing and Finance Authority, for the receipt of grant funds,to be used for environmental cleanup related to construction of the new Fort Collins Museum and Discovery Science Center facility, in substantially the form attached hereto as Exhibit A,along with such additional terms and conditions as the City Manager, in consultation with the City Attorney, deems necessary and appropriate to protect the interests of the City. �) Passed and adopted at a regular meeting of the Co Girl' 1 of`the City of Fort Collins th' I st day of December A.D. 2009. V✓ ti Mayor ,ATTEST: L '4� City Clerk EXHIBIT A Brownfields Loan No. ((ChfaLoan» COLORADO BROWNFIELDS REVOLVING LOAN FUND SUBGRANT AGREEMENT THIS SUBGRANT AGREEMENT ("Agreement") is made and dated as of((ClosingDate)), by and between the Colorado Brownfields Revolving Loan Fund (the "Grantor"), acting by and through the Colorado Housing and Finance Authority(the"Authority"), and ((Subgrantee1)) (the"Subgrantee"). RECITALS WHEREAS, the State of Colorado (the"State") has received a grant(the "Grant") from the United States Environmental Protection Agency ("EPA") under and pursuant to the "Brownfields Initiative" under the Comprehensive Environmental Response, Compensation and Responsibilities Act of 1980, as amended ("CERCLA"); and WHEREAS, the State, acting through the Colorado Department of Public Health and Environment ("CDPHE") as the "Lead Agency" under the Grant, the City and County of Denver and the cities of Englewood, Lakewood, Loveland and Westminster, the County of El Paso and the Authority have entered into a Memorandum of Agreement (the "MOA") creating the Colorado Brownfields Revolving Loan Fund; and WHEREAS, the State has contracted with the Authority to act as the State's fiscal agent to receive and administer the Grant on behalf of the Colorado Brownfields Revolving Loan Fund; and WHEREAS, Subgrantee is the owner of certain real property located in the County of«county», Colorado, at ((address)) (the "Property"), which property is more particularly described in Exhibit A, attached hereto; and WHEREAS, Subgrantee has undertaken and completed the removal of environmental hazards located on the Property (the "Project") in accordance with the provisions of the MOA, the terms and conditions of the Project Plans (hereinafter defined), and the applicable provisions of federal and state law, including CERCLA(42 USCA 9601 et. seq.)and regulations contained in 40 CFR Part 300; and WHEREAS, Subgrantee wishes to receive and Grantor has agreed to grant [eighty percent (80%) of] the funds to finance the Project as set forth in the Project Budget approved as part of the Project Plans. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, Subgrantee and Grantor agree as follows: 1. Subgrant and Purpose. Grantor agrees to grant and Subgrantee agrees to receive [((Amount))] [an amount equal to the lesser of (a) «Amount» and (b) eighty percent (80%) of the reimbursable costs of the Project expended by the Subgrantee pursuant to the approved Project Budget, as certified to Grantor as provided herein] (the"Subgrant")for the Project. The Subgrant will be disbursed to the Subgrantee subject to all of the terms, provisions, conditions, covenants and agreements contained in this Agreement. The Subgrant is evidenced by a Notice of Award of even date herewith (the "Notice") . This Agreement, the Notice and any other document evidencing, or executed in connection with the Subgrant are hereinafter collectively referred to as the"Subgrant Documents." - 1 - Legal\BF\Loans\«File Nameu\LoanAgreement—SingleDraw (Rev.4/09) 2. Conditions Precedent to Subgrant. Prior to the advance of any Subgrant proceeds to Subgrantee, all of the following conditions shall have been satisfied, which satisfaction shall be determined by the Grantor in its sole discretion: (a) The conditions established by Grantor for the closing of the Subgrant shall be satisfied. (b) The CDPHE, acting in the capacities of Site Manager and On-Scene Coordinator with respect to the Project, shall have inspected the work in place and determined that Subgrantee has completed the Project in strict compliance with the Scope of Work, Project Budget, Work Schedule, Health and Safety Plan (OSHA 1910-120-126) and, if applicable, Quality Assurance Project Plan (collectively, the "Project Plans"); the applicable provisions of state and federal law, including CERCLA and regulations contained in 40 CFR Part 300 ("NCP"), 40 CFR Part 31, 40 CFR Part 35, Subpart 0 and the applicable cross-cutting requirements generally described in the BCRLF Administrative Manual (EPA Publication 500-B-98-001), Section IX; and, in a good and workmanlike manner. (c) The CDPHE shall have received and approved the Certificate of Completion by the Subgrantee's Licensed Environmental Professional ("LEP") and the Construction Completion Report developed by Subgrantee's LEP in accordance with Section 300.165 of the NCP and applicable EPA guidance. (d) Subgrantee shall have furnished to Grantor evidence of the insurance coverages required by paragraph (g) of Section 3 hereof. (e) Subgrantee shall have delivered to the CDPHE all necessary permits issued by the appropriate governmental authority evidencing or relating to the completion of the Project and placement in service of the Property. (f) Subgrantee shall furnish to Grantor assurance that any latent defects in the Project can be remedied in the form of a bond or letter of credit in effect for a period of not less than one year after the completion of the Project. (g) Subgrantee shall be in compliance with all applicable provisions of state and federal law pertaining to the Project, including CERCLA and the regulations contained in 40 CFR Part 300, 42 USCA 9601 et. seq. (h) Subgrantee shall provide evidence satisfactory to EPA that all laborers and mechanics employed in the Project were paid at rates not less than the prevailing wage rates for corresponding classes of laborers and mechanics employed on work of a similar character in the locality in which the work was performed, as determined by the Secretary of Labor with respect to this Project, all as required by CERCLA and the Davis Bacon Act. (i) Subgrantee shall have provided to the CDPHE a certification of the costs of the Project actually expended by Subgrantee pursuant to the approved Project Budget, executed by Subgrantee and audited by an independent public accountant, together with copies of invoices or other acceptable evidence of Subgrantee's payment thereof. The proceeds of the Subgrant shall in no event exceed eighty percent (80%) of the total amount expended by Subgrantee pursuant to the approved Project Budget. -2- Legal\BF\Loans\«Fite_Namen\Loan Agreement—Single Draw (Rev.4/09) Q) The CDPHE shall have been furnished a final plot plan of the Property with line measurements, reflecting the current or proposed location of buildings or other improvements (the "Improvements"), the proposed location of drives and parking areas, the location of adjoining streets, the means of ingress/egress and the distance to nearest intersecting streets. 3. Agreements of Subgrantee. Subgrantee covenants and agrees with Grantor as follows: (a) Subgrantee shall comply with all applicable provisions of state and federal law, including CERCLA, in its operation of the Property. (b) Subgrantee shall expend subgrant proceeds solely for costs identified in the approved Project Budget and for no other purpose. c) Subgrantee shall maintain the Property in good repair and condition and shall not demolish any part of the buildings or structures located on the Property or commit any waste without the prior written consent of the Grantor (d) Subgrantee shall maintain financial records pertaining to all matters relative to this Agreement and the Project in accordance with generally accepted accounting principles and procedures and shall retain all of its records and supporting documentation applicable to the Project for a period of not less than ten (10) years following completion of the Project and until it shall have obtained the written authorization of the CDPHE to destroy or discard such records and documentation. All such records and supporting documents shall be made available, upon request, for inspection or audit by the Grantor, the CDPHE or their respective representatives. -(e) Subgrantee shall not discriminate against any person on the basis of race, color, religion, sex, national origin, handicap, age, or veteran status, sexual preference, or any other basis prohibited by law in the lease, use and occupancy of the Project or in connection with the employment or application for employment of any person performing any work pursuant to this Agreement or related to the performance and management of the Project. Subgrantee shall comply with Executive Order 11246, Equal Employment Opportunity, and the regulations at 41 CFR 60-4. (f) Subgrantee agrees to protect, indemnify, defend and hold harmless Grantor, the CDPHE, the Authority and their respective officers, administrators, agents, servants and employees from or against any and all claims, demands, suits, losses, damages,judgments, costs and expenses, whether direct, indirect or consequential and including, but not limited to, all fees, expenses and charges of attorneys and other professionals, court costs, and other fees and expenses for bodily injury, including death, personal injury and property damage, arising out of or in connection with the performance of any work or any responsibility or obligation of Subgrantee with respect to the Project or the Property caused in whole or in part by any act, error, or omission of Subgrantee, its agents, servants, employees or assigns. (g) Subgrantee shall maintain and keep in force general liability insurance with a minimum of $1,000,000 per occurrence and $2,000,000 aggregate coverage; casualty insurance with respect to any improvements on the Property for an amount at least equal to the lesser of the Subgrant amount or replacement cost; and coverage for pollution incidents that may be evidenced by.pollution legal liability insurance. Insurance shall be placed with an insurer with an AM. Best's rating of no less than A:VII. Grantor and Colorado Housing and Finance Authority shall be named as "Mortgagee and Loss Payee" with respect to the casualty insurance and as "Additional Insured" with respect to the liability insurance. Subgrantee shall deliver to Grantor from time to time at Grantor's request certificates of insurance or policies evidencing all such insurance then in effect. Policies shall be endorsed to provide that the Grantor shall be provided with thirty (30) days written notice of any cancellation, suspension or reduction in limits. _3_ Legal\BF\LoansV(File_Name)ALoan Agreement—Single Draw (Rev.4/09) (h) Subgrantee shall not assign or attempt to assign, directly or indirectly, any of its rights under this Agreement or under any instrument referred to herein without the prior written consent of Grantor. The Subgrantee shall not convey, assign all or any portion of the Property without the prior written consent of the Grantor. 4. Representations and Warranties of Subgrantee. Subgrantee represents and warrants to the Grantor as follows: (a) All the necessary licenses, authorizations, consents, approvals and permits required in connection with the completion of the Project and the operation of the Property have been obtained and are currently fully in effect. (b) As of the date of commencement of the Project and as of the date hereof, Subgrantee is not an owner or operator of the site pursuant to CERCLA; or, if the Subgrantee is an owner or operator of the site pursuant to CERCLA, it acquired the Property after the time of disposal or placement of the hazardous substances and the CDPHE has determined (i) that Subgrantee did not cause, contribute to or exacerbate the release of such substances; (ii) Subgrantee falls under a CERCLA statutory exemption from liability; or (iii) Subgrantee has acknowledged and agreed that EPA is fully entitled to use its enforcement discretion under CERCLA as described in EPA Guidance Appendix F. (c) There is no default on the part of Subgrantee under any agreement or document pertaining to the Project to which it is a party and no event has occurred that with notice or the passage of time or both would constitute a default under any such document. (d) Subgrantee is not and has never been subject to any penalties resulting from environmental non-compliance at or on the Property. (e) The Property and the proposed use thereof comply with all applicable zoning, environmental protection, use and building codes, laws, regulations and ordinances. Subgrantee has no knowledge of any violations of any laws, ordinances, codes, requirements, orders or covenants of any governmental entity, agency, instrumentality or association having jurisdiction over the Property. (f) Subgrantee has full power to enter into and perform its obligations under this Agreement and the Subgrant Documents. The execution and delivery of this Agreement and the Subgrant Documents and the performance and observance of their terms, conditions and obligations have been duly authorized by all necessary action on the part of Subgrantee. This Agreement and the Subgrant Documents constitute, and any other agreement required hereby will constitute, when executed and delivered by the Subgrantee to the Grantor, valid and binding obligations of the Subgrantee enforceable in accordance with their terms. (g) Subgrantee is a formed under the laws of the State of Colorado and is validly organized, existing and in good standing under said laws and is duly qualified to do business under the laws of the State of Colorado. 5. Events of Default. The occurrence of any one or more of the following events or existence of one or more of the following conditions, with respect to the Subgrantee, shall constitute an Event of Default under this Agreement: (a) Subgrantee shall fail to perform any term, covenant or condition to be performed hereunder and such failure is not remedied within thirty (30) days, unless a longer period of time is -4- Legal\BF\Loans\aFile_Nameu\Loan Agreement—Single Draw (Rev.4/09) reasonably required to cure such failure, from and after written notice from Grantor to Subgrantee, specifying said failure. I (b) There shall occur an event of default under the terms of the Note, the Subgrant Documents or any other document executed in connection herewith. (c) Any representation or warranty made in writing to Grantor or the CDPHE herein or in connection with the making of the Subgrant, or any certificate, statement or report made pursuant to this Agreement by Subgrantee shall prove at any time to have been incorrect in any material respect when made. (d) This Agreement or the Note or any Subgrant Document shall at any time for any reason cease to be in full force and effect or shall be declared to be null and void, or the validity or enforceability thereof shall be contested by Subgrantee, or Subgrantee shall deny that it has any or further liability or obligation hereunder or thereunder. (e) A lien or other encumbrance (other than as permitted by the Subgrant Documents) shall be filed against the Property or any other security for the Subgrant and the same shall not have been removed or Subgrantee shall not have posted adequate security therefor within ten (10) days after the filing thereof. (f) Subgrantee shall make an assignment for the benefit of creditors, file a petition in bankruptcy, be adjudicated insolvent or bankrupt or admit in writing the inability to pay debts as they mature, petition or apply to any tribunal for the appointment of a receiver or any trustee or similar officer for Subgrantee or a substantial part of the assets of Subgrantee, or shall commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in effect, or if there shall have been filed any such petition or application, or any such proceeding shall have been commenced against Subgrantee, that remains undismissed for a period of sixty (60) days or more; or Subgrantee by any act or omission shall indicate its consent to, approval of or acquiescence in any such petition, application or proceeding, or the appointment of a receiver of or any trustee or similar officer for Subgrantee or any substantial part of any of the properties of Subgrantee, or shall suffer any such receivership or trusteeship to continue undischarged for a period of sixty (60) days or more; or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the property of the Subgrantee and such judgment, writ or similar process shall not be released, vacated or fully bonded within sixty(60)days after its issue or levy. 6. Remedies. (b) No delay or failure of Grantor in the exercise of any right or remedy provided for hereunder shall be deemed a waiver of the right by Grantor and no exercise or partial exercise or waiver of any right or remedy shall be deemed a waiver of any further exercise of such right or remedy or of any other right or remedy that Grantor may have. The enforcement of any rights of Grantor as to any security for the Subgrant shall not affect the rights of Grantor to enforce payment of the Subgrant and to recover judgment for any portion thereof remaining unpaid. The rights and remedies herein expressed are cumulative and not exclusive of any right or remedy that the Grantor shall otherwise have. 7. Rights of the Grantor. Grantor may assign, negotiate, pledge or otherwise hypothecate this Agreement and the Subgrant Documents or any of its rights and security hereunder or thereunder, in whole or in part. In case of such assignment, Subgrantee will accord full recognition thereto and hereby agrees that all rights and remedies of the Grantor in connection with the interests so assigned shall be enforceable against Subgrantee by the assignee thereof. -5- LegaItBF\Loans\eFile—Nameu\Loan Agreement—Single Draw (Rev.4/09) 8. Miscellaneous Provisions. (a) Neither this Agreement nor any provision hereof may be changed, waived, discharged, or terminated orally and may only be modified or amended by an instrument in writing, signed by the parties hereto. (b) Inspections and approval of the Project and the workmanship and materials used therein impose no responsibility or liability of any nature or kind whatsoever on Grantor or the CDPHE to Subgrantee and/or any third parties. The parties hereby expressly agree and acknowledge that their relationship is that of Grantor and Subgrantee and that no other relationship, including that of joint venture, partnership or other common enterprise is created by this Agreement or the other Subgrant Documents. (c) All rights, powers, and remedies herein given to Grantor are cumulative and not alternative, and are in addition to all other statutes or rules of law. Any forbearance or delay by Grantor in exercising the same shall not be deemed to be a waiver thereof and the exercise of any right or partial exercise thereof shall not preclude the further exercise thereof and the same shall continue in full force and effect until specifically waived by an instrument in writing executed by Grantor. All representations, warranties and covenants by Subgrantee shall survive the making of the advances of the Subgrant and the provisions hereof shall be binding upon Subgrantee, its successors and assigns and inure to the benefit of the Grantor, its successors and assigns. (f) All notices shall be in writing and shall be deemed to have been sufficiently given or served when presented personally or when deposited in the United States mail, by registered or certified mail, addressed to the parties at the addresses set forth below. Such addresses may be changed by notice to the other party given in the same manner. (g) This Agreement and all covenants, agreements, representations and warranties made herein shall survive the execution of this Agreement and shall continue in full force and effect so long as the Subgrant is outstanding and unpaid. (h) If any provision of this Agreement is held invalid, such invalidity shall not affect other provisions of this Agreement which can be given effect without the invalid provisions and, to this end, the provisions of this Agreement are hereby declared severable. (i) This Agreement and all matters of performance relating thereto shall be governed by and construed and interpreted in accordance with the laws of the State of Colorado or, to the extent applicable, CERCLA and EPA Regulations. Q) This Agreement may be executed in several counterparts. -6- Legal\BF\Loans\((File—Namev\Loan Agreement—Single Draw (Rev.4/09) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. GRANTOR: COLORADO BROWNFIELDS REVOLVING LOAN FUND acting by and through the COLORADO HOUSING AND FINANCE AUTHORITY 1981 Blake Street Denver, Colorado 80202 By: ((GrantorSignon) SUBGRANTEE: «Subgranteel», «Baddressl» By: «Signori», ((SignTitlel)) -7- Legai\BF\Loans\((File—Name))\Loan Agreement—Single Draw (Rev.4/09) EXHIBIT A Legal\«File_Nameu\Loan Agmt-Perm.doc I �