CR 05-125 Hennepin County Environmental Response Fund Grant Agreement
C\IY OF
m
August 29, 2005
HOPKINS
Council Report 2005-125
HENNEPIN COUNTY ENVIRONMENTAL RESPONSE FUND GRANT-
GPS DEVELOPMENT
Proposed Action
Staff recommends adoption of the following motion: Move to approve the Hennepin
Countv Environmental Response Fund aQreement between the City of Hopkins and
Hennepin County and authorize its execution. subiect to the approval and execution of
a sub-recipient aareement between the Citv of Hopkins and GPS Development.
With this motion the contract will be executed and forwarded to Hennepin County for
their execution. It is understood that staff may make necessary modifications to the
agreement prior to execution.
Overview
At the request of GPS Development, the City of Hopkins applied for and received a
grant award of $28,911 through the Hennepin County Environmental Response Fund
Account. The grant funds will be used for environmental assessments and the
preparation of a Response Action Plan. The eventual clean-up will allow for the site to
be redeveloped into a mixed-use project of condominiums and retail.
The grant agreement details accounting and record keeping requirements,
disbursement procedures, reporting and other miscellaneous items. As a condition of
receiving the grant funds, staff is recommending GPS Development be required to
execute a sub-recipient agreement which obligates GPS Development to fulfill all the
obligations of the grant agreement.
Primary Issues to Consider
The major obligations of the grant agreement will be passed on to GPS Development.
They will also be required to indemnify the City of Hopkins of all liability and reimburse
the City of all out-of-pocket expenses incurred.
Supportinq Information
. Draft Hennepin County Environmental Response Fund Grant Agreement
. Draft Sub-r ipient Agr ent
Financial Impact: $ 0 Budgeted: Y/N
Related Documents (CIP, ERP, etc.):
Notes:
Source:
Contract No. A051165
ENVlRONMENTAL RESPONSE FUND GRANT AGREEMENT
BETWEEN THE CITY OF HOPKINS AND
HENNEPIN COUNTY DEPARTMENT OF ENVlRONMENTAL SERVICES
This Agreement is made on by and between the County of
Hennepin, State of Minnesota ("County" or "Grantor" at A2300 Government Center,
Minneapolis, MN 55487) by and through its Department of Environmental Services
("Department") and the City of Hopkins, 1010 1st Street South, Hopkins, MN 55343 ("Grantee").
Grantee has submitted an Application dated , 2005
("Application") to the County for a grant to be used for environmental assessments and
preparation of a response action plan for the Block 64 property, located on Mainstreet between
5th and 6th Avenues, in Hopkins (the "Site"), which Application is incorporated into this
Agreement by reference.
In consideration ofthe mutual promises set forth below, the parties agree as follows:
1. GRANT AMOUNT AND COMPLETION
The County shall grant to the Grantee a sum not to exceed Twenty Eight Thousand Nine
Hundred and Eleven Dollars ($ 28,911.00) which funds shall be only for expenses incurred in
performing activities specified in the Application and as may be further described in Exhibit A to
this Agreement or as approved by County staff. Approved assessment and/or clean-up activities
as may be described in the Application and Exhibit A are referred to herein as the "Proj ect."
Administrative costs incurred by the Grantee are not eligible for reimbursement via this
Agreement.
Grantee agrees to complete the Project within one (1) year of execution of this Agreement and
within the terms stated herein. Any material change in the scope of the Project, including time
schedule and budget, must be approved in writing by the County. 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, the 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.
Grantee agrees that 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 the 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
Grantor will disburse funds to Grantee pursuant to this Agreement, based on a payment request
form provided by the Grantor, submitted by the Grantee and approved by the Grantor. 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 Grantor will
disburse the requested amount to the Grantee within four (4) weeks after receipt of a written
disbursement request.
4. REPORTING
Grantee shall submit to the Grantor 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 and qualitatively measure the progress of such
goals. Reporting forms will be provided by the Grantor. In addition, the required documentation
listed in Attachment 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 agrees that it
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.
Grantor and Grantee acknowledge and agree that the Site is owned by and under the control of
GPS Development, LLC ("Developer"), and that Developer shall enter into the contracts for the
performance of the work comprising the Project. Grantee and Developer shall enter into a Sub-
Recipient Agreement ("Sub-Recipient Agreement") providing for the use of the grant funds to be
c:Hopciv\GrantAgt.Block64Clean - 2 -
paid pursuant to this Agreement to be used to reimburse eligible costs incurred by Developer in
completing the Project. The terms and conditions of this Agreement shall be incorporated in the
Sub-Recipient Agreement, and Grantee shall require Developer to fully comply with such terms
and conditions.
6. TERMINATION, CANCELLATION AND ASSIGNMENT
This Agreement may be canceled by the County upon sixty (60) days written notice to the
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 ofthe Project
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.
With the exception of Grantee's obligations under Paragraphs 8 and 9 of this Agreement
regarding indemnification and insurance, Grantor's exclusive remedies for Grantee's failure to
comply with the provisions of this Agreement shall be those remedies described in the
immediately preceding paragraph, and Grantee shall not be liable for specific performance of this
Agreement or for damages.
This Agreement may not be assigned without the prior written consent of the County. Grantor
,hereby consents to the Sub-Recipient Agreement, and agrees that Grantee and Developer may
enter into and execute the same.
7, ll{DEPENDENTCONTRACTOR
The Grantee shall select the means, method, and manner of performing the activities described
herein. Nothing is intended or should be construed in any manner as creating or establishing the
relationship of co-partners between the parties hereto or as constituting the Grantee as the agent,
representative, or employee of the County for any purpose or in any manner whatsoever. The
Grantee is to be and shall remain an independent contractor with respect to all services and
activities performed under this Agreement. Any and all personnel of the Grantee or other
persons while engaged in the performance of any work or services required by the Grantee under
this Agreement shall have no contractual relationship with the County, and shall not be
considered employees of the County. Any and all claims that mayor might arise under the
Minnesota Economic Security Law or the Workers' Compensation Act of the State of Minnesota
on behalf of said personnel, arising out of employment or alleged employment including without
c:Hopciv\GrantAgt.Block64Clean - 3 -
limitation, claims of discrimination against the Grantee, its officers, agents, contractors, or
employees shall in no way be the responsibility of the County. The Grantee shall defend,
indemnify and hold harmless the County, its officials, officers, agents, and employees from any
and 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
The Grantee agrees to defend, indemnify and hold harmless, the County, its officials, officers,
agents 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 the 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 the Grantee to perform fully, in any respect, all obligations under this Agreement.
9. lNSURANCE
In order to protect the County and those listed above under the indemnification provision, the
Grantee agrees at all times during the term ofthis 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:
1. Commercial General Liability on an occurrence basis with Contractual Liability
Coverage:
General Aggregate
Products-Completed Operations Aggregate
Personal and Advertising Injury
Each Occurrence -
Combined Bodily Injury and Property Damage
Limits
$1,000,000
1,000,000
1,000,000
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:
c:Hopciv\GrantAgt.Block64Clean - 4 -
a. Workers' Compensation
Ifthe contractor is based outside the State of Minnesota,
coverage must apply to Minnesota laws.
Statutory
b. Employer's Liability. Bodily Injury by:
Accident - Each accident
Disease - Policy Limit
Disease - Each Employee
100,000
500,000
100,000
4.
Professional Liability - Per Claim and Aggregate
1,000,000
The insurance must be maintained continuously for a period of two years after the
termination ofthis Agreement.
The Grantee shall require that any independent contractors rendering assessment and/or clean-up
activities under this Agreement furnish certificates of insurance to the 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 the Grantee to determine the need for and to procure additional insurance
which may be needed in connection with this Agreement. Copies of policies shall be submitted
to the County upon written request.
The Grantee shall not commence work until it and any contractors have obtained the required
proof of insurance which clearly evidences required insurance coverages. The foregoing
insurance coverages and requirements may be satisfied by the Developer or the Developer's
contractors purchasing and maintaining in effect insurance policies and coverages complying
with the requirements stated in this Paragraph 9. By entering into this Agreement, Grantee does
not waive any statutory, common law or other immunities or limitations on Grantee's liability,
and Grantee specifically reserves all such immunities and limitations of its liability.
If the 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 supercedes 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 ofthis Agreement.
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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 hereto.
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 hereunder 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. NO THIRD PARTY BENEFIClARIES
There are no third party beneficiaries ofthis Agreement, intended or otherwise.
The Remainder Of This Page Was Intentionally Left Blank
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COUNTY BOARD APPROVAL
GRANTEE, having signed this agreement, and the Hennepin County Board of
Commissioners having duly approved this agreement on the of , 2005, 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
Assistant County Attorney
By:
Chair ofIts County Board
Date:
ATTEST:
Deputy/Clerk of County Board
And:
Assistant/Deputy/County Administrator
By:
Assistant County Administrator, Public Works
Date:
Recommended for Approval
By:
Director, Department of Environmental Services
Date:
c:Hopciv\GrantAgt.Block64Clean - 7 -
GRANTEE
The Grantee certifies that the person who executed
this Agreement is authorized to do so on behalf of
the Grantee as required by applicable articles,
bylaws, resolutions or ordinances. *
Name: CITY OF HOPKlNS
By:
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.
c:Hopciv\GrantAgt.Block64Clean - 8 -
.
.
.
This Page Was Intentionally Left Blank
c:Hopciv\GrantAgtBlock64Clean - 9 ~
Exhibit A
City of Hopkins
Proiect Summary:
The approximately 3.5 acre project site consists of an residential buildings, a used car lot, a gas
station and a rental hotel complex. The proposed development includes a 270-unit residential
development with underground parking, and 8,800 square feet of retail space. Petroleum
contamination associated with past and current property use is expected, An ERF grant of
$28,911 is awarded to the City of Hopkins for environmental assessments and the preparation of
a Response Action Plan for the property
The following costs are based on a budget submitted by the Grantee. Modifications must be
. approved in writing by the Grantor.
Approved Budget for Block 64:
Phase II Assessment, Predemolition Survey and
Response Action Plan preparation $ 28.911
Total: $ 28,911
Required Documentation to be Submitted to Hennepin Countv:
ConsultantlContractor/MPCA Invoices
Environmental Assessment Reports
Response Action Plan
MPCA Approval Letters
Annual Project Progress/Summary Report(s).
E-l
SUB-RECIPIENT AGREEMENT
THIS AGREEMENT, made on or as ofthe day of
2005, 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 GPS Development, LLC, a Minnesota limited liability
company (hereinafter referred to as the "Redeveloper"), having its principal office at 15 Sixth
Avenue North, Hopkins, MN 55343.
RECITALS:
A, The Redeveloper is in the process of redeveloping certain real property located on
Mainstreet between Fifth and Sixth Avenues within the City (which real property is referred to
herein as the "Redevelopment Property"); and
B, The redevelopment of the Redevelopment Property includes the investigation,
assessment, removal, handling and disposal of contaminated soils and other materials located on
the Redevelopment Property; and
C. At the request of the Redeveloper, the City applied for grant funds from Hennepin
County's (the "County") Department of Environmental Services (the "Department") to provide
funding for investigation and response actions related to the contaminated soils on the
Redevelopment Property (which activities are referred to herein as the "Work") and
D. Pursuant to an Application to the County dated , 2005 (the
"Application"), the City was or shall be awarded an Environmental Response Fund Grant (the
"Grant") in the amount of $28,911.00, which Grant will be disbursed by the County to the City
pursuant to the terms and conditions of the Environmental Response Fund Grant Agreement
attached hereto as Exhibit A (the "Grant Agreement"); and
E. The Redeveloper has agreed to pay any amount by which the cost of the Work exceeds
the Grant; and
F, The parties desire to set forth in writing their agreement as to the disbursement of the
Grant from the City to Redeveloper.
NOW, THEREFORE, in consideration ofthe foregoing Recitals and the mutual
representations, warranties, covenants and agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Accuracv of Recitals. The parties agree that the above Recitals are true and
accurate and are incorporated in and made a part ofthis 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 ofthe
Redeveloper solely for the uses and purposes for which such funds were disbursed by the
County, subject to the terms and conditions of this Agreement and the Grant Agreement. The
City makes no representation or warranty concerning the availability or sufficiency of the Grant.
3, Use of Funds, Redeveloper shall use any and all funds disbursed to it hereunder
solely to pay, or to reimburse itself for paying, the costs and expenses incurred by Redeveloper in
connection with the Work and otherwise in accordance with and subject to the conditions
imposed upon the City in the Grant Agreement. Redeveloper shall take all steps necessary to
assure such use of funds through its contracts with its contractors.
4. RedeveloDer Oblil!:ations. The Grant Agreement is incorporated in and made a
part of this Agreement in its entirety. Redeveloper does hereby assume and agree to perform and
observe all of the covenants, obligations, agreements and conditions to be performed or observed
by the City under the Grant Agreement. Without limiting the generality of the foregoing, the
Redeveloper specifically agrees as follows:
A. Redeveloper is the owner ofthe Redevelopment Property and has the legal
right to perform the Work on the Redevelopment Property. The Redeveloper shall
expeditiously and diligently commence and pursue the Work within the time frames
specified in the Application and Grant Agreement. Redeveloper shall immediately notify
the City in the event of any change in the prospects for the timely completion of the
Work.
B, All contracts for performance of the Work shall comply with the
provisions of Paragraph 5 of the Grant Agreement. Redeveloper shall perform the Work,
and shall include in any contract for performance of any part of the Work provisions
requiring the contractor to perform such part of the Work fully in compliance with the
terms and conditions of the Grant Agreement and in a good and workmanlike manner and
in accordance with applicable state and federal laws and regulations, including, without
limitation, applicable MPCA regulations and requirements and applicable OSHA
regulations, including the federal Hazardous Waste Operations and Emergency Response
Standards (29 CFR 1910.120 and 29 CFR 1926.65).
C, In the event that the County, pursuant to Paragraph 6 of the Grant
Agreement, demands return of grant funds already disbursed, Redeveloper forthwith shall
within ten (10) days of demand by the City pay the City the amount demanded by the
County.
D. Redeveloper shall comply with all 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
c:hopcivil\SubRecipientAgt.Block64
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Redeveloper required by the Grant Agreement) and permit City, County and Mim1esota
State Auditor representatives and other parties designated in the Grant Agreement to have
free access to and to inspect and copy all books, accounts, records and contracts relating
to the Work and to discuss the same, as well as the progress and findings of the Work,
with Redeveloper's project managers at reasonable times and intervals. 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. Upon request, Developer 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.
E. Redeveloper shall prepare and timely submit to the City and County 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 County
under the Grant Agreement until and unless Redeveloper has provided all required
documents and information to the City.
F, The City's authorization of the submission of the Applications under the
County's ERF Program was predicated 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 Programs. lfthe City is required to
actually pay any amount in connection with the Grant, the Redeveloper shall within ten
(10) days after request by the City, and as a condition of the City's payment of such
amounts, payor reimburse the City for such amounts.
G, The Redeveloper shall provide all certifications at the times the same are
required to be provided under the Grant Agreement.
H. 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:
1. Commercial General Liability on an occurrence basis with Contractual Liability
Coverage:
General Aggregate
Personal and Advertising Injury
Each Occurrence -
Combined Bodily Injury and Property Damage
Limits
$1,000,000
$1,000,000
$1,000,000
2. Automobile Liability - Combined single limit each occurrence for $1,000,000
bodily injury and property damage covering owned, non-owned,
c:hopcivil\SubRecipientAgt.Block64
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and hired automobiles.
3. Workers' Compensation and Employer's Liability:
a. Workers' Compensation
lfthe contractor is based outside the State of Minnesota,
coverage must apply to Minnesota laws.
Statutory
b. Employer's Liability. Bodily Injury by:
Accident - Each accident
Disease - Policy Limit
Disease - Each Employee
$100,000
$500,000
$100,000
4.
Professional Liability - Per Claim and Aggregate
$1,000,000
The Redeveloper and any contractor or subcontractor performing any ofthe 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. Redeveloper shall
otherwise comply with the requirements of Paragraph 9 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, City does not waive any statutory,
common law or other immunities or limitations on City's liability, and City specifically
reserves all such immunities and limitations of its liability.
I. 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, roles, or regulations against
discrimination shall be otherwise subjected to discrimination.
5. Disbursement Procedures.
c:hopcivi1\SubRecipientAgt.Block64
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A. Redeveloper shall prepare and submit to the City periodic payment
requests for the costs and expenses of the Work in the form required by the County, the
City and the Grant Agreement, and the City shall forward the same to the County in the
marmer and upon the schedule set forth in the Grant Agreement. The Redeveloper shall
submit such other documentation as the City or County may require relative to costs of
the Work.
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 County, the City shall forward
the same to the Redeveloper or the contractor designated by Redeveloper, provided (i)
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. Redeveloper hereby releases and agrees to indemnify, defend and
hold hannless the City, the County, the Department, their 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 and expenses ("Liabilities"), directly or indirectly incurred by any of the Indemnified
Parties, arising from the subject matter of this Agreement, Redeveloper's default under this
Agreement and/or the performance or nonperformance of the Work. 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.
7. Indeuendent Contractor. The Redeveloper shall select the means, method, and
marmer of performing the Work. Nothing is intended or should be construed in any marmer as
creating or establishing the relationship of co-partners 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 marmer whatsoever. The Redeveloper is to be and shall remain an independent
contractor with respect to all services and activities performed under 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 ofthe City by virtue
of this Agreement. Any and all claims related to the Work that mayor might arise under the
Minnesota Economic Security Law or the Workers' Compensation Act of the State of Minnesota
on behalf of said personnel, arising out of employment or alleged employment including without
limitation, claims of discrimination against the Redeveloper, its officers, agents, contractors, or
employees shall in no way be the responsibility of the City. The Redeveloper shall defend,
indemnify and hold hannless 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
c:hopcivi1\SubRecipientAgt.Block64
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limitation, tenure rights, medical and hospital care, sick leave, Workers' Compensation, Re-
employment Compensation, disability, severance pay, and retirement benefits.
8, Costs and Exuenses. 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 ofthe City's attorneys at the rate of$2l5.00 per
hour) in connection with the negotiation, preparation, approval, review, execution, delivery,
amendment, modification, interpretation, collection and enforcement ofthis Agreement. The
obligation of Redeveloper under this paragraph shall survive any termination of this Agreement.
9. Default: Remedies. This Agreement shall terminate if the Grant Agreement is
terminated in accordance with its terms and conditions. In addition, if 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 Redeveloper, except that 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 Redeveloper named
below or two business days after being deposited in the United States mail. The addresses for
notices are as follows:
If to the City:
City of Hopkins
Attention: City Manager
1010 First Street South
Hopkins, MN 55343
Copy to:
Mr. Jeremy S. Steiner
Miller, Steiner & Curtiss, P.A.
400 Wells Fargo Bank Building
1011 First Street South
Hopkins, MN 55343
Ifto Redeveloper:
GPS Development, LLC
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Attention: Steve Flanagan
15 Sixth Avenue North
Hopkins, MN 55343.
Copy to:
Mr. David Kirkman
Ravich, Meyer, Kirkman, McGrath & Nauman
4545 IDS Center
80 South Eighth Street
Minneapolis, MN 55402
10. Miscellaneous.
A. Governinl! 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 Al!reement. 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
or as to any act other than that specifically waived.
E. Assil!nment. This Agreement shall not be assignable, in whole or in part,
by either party without the prior written consent of the other party.
F. 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. Severabilitv. To the extent any provision of this Agreement shall be
invalid or unenforceable, it shall be considered deleted herefrom and the remainder of
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such provision and of this Agreement shall be unaffected and shall continue in full force
and effect.
H, Exhibits; Cautions and Headlines; Interpretation. Exhibit 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 though its agent prepared the same, it being agreed that the agents
of both parties have participated in the preparation hereof.
I, Bindinl! 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. 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.
CITY;
CITY OF HOPKINS
By
Its
REDEVELOPER:
GPSDEVELOPMENT,LLC
By
Its
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.
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EXHIBIT A
GRANT AGREEMENT
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