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CR 08-087 Henn Cty. Enviornmental Response Fund Grant-Fifth Ave FlatsG~TY OF September 11, 2008 N O P K I N ~, Council Report 2008-087 HENNEPIN COUNTY ENVIRONMENTAL RESPONSE FUND GRANT - FIFTH AVENUE FLATS Proposed Action Staff recommends adoption of the following motion: Move to approve the Hennepin County Environmental Response Fund agreement between the City of Hopkins and Hennepin County and authorize its execution, subject to the approval and execution of a sub-recipient agreement between the City of Hopkins and Doran Pratt 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 Doran Pratt Development, the City of Hopkins applied for and received a grant award of $618,842 through the Hennepin County Environmental Response Fund Account. The grant funds will be used for environmental clean-up in accordance with the Remdiation Action Plan, allowing for the site to be redeveloped into amixed- use project of apartments 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 Doran Pratt Development be required to execute asub-recipient agreement which obligates them 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 Doran Pratt 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. The Hennepin County ERF grant will replace the Met Council dollars previously allocated to this project. Supporting Information • Draft Hennepin ounty Environmental Response Fund Grant Agreement • Draft b-rec~ lent Agreement ,- Kers n Elv rum C Director of tanning & Development Financial Impact: $ 0 Budgeted: Y/N Source: Related Documents (CIP, ERP, etc.): Notes: Contract No. A080951 ENVIRONMENTAL RESPONSE FUND GRANT AGREEMENT BETWEEN THE CITY OF HOPKINS AND HENNEP[N COUNTY DEPARTMENT OF ENV[RONMENTAL SERVICES This Agreement is made on by and between the County of Hennepin, State of Minnesota ("County") at A2300 Govermnent Center, Minneapolis, MN 55487 by and through its Department of Environmental Services ("Department'') and the City of Hopkins with offices located at 1 O l 0 1 s` Street, Hopkins, Minnesota, 55343 ("Grantee"). Grantee has made application to the County for a grant to be used for an additional assessment, asbestos and lead paint abatement, implementation of a Response Action Plan (RAP) including soil and groundwater cleanup and vapor mitigation, and demolition of two structures (501 and 525 Mainstreet) including tank and hoists removal, and removal and disposal of contaminated/stained concrete at the Block 64 site located on Mainstreet to IS` Street North and between 5°i and 6`~' Avenue North in Hopkins, which application is incorporated into this Agreement by reference. In consideration of the mutual promises set forth below, the parties agree as follows: I. GRANT AMOUNT AND COMPLETION The County shall grant to Grantee a sum not to exceed Six Hundred Eighteen Thousand Eight Hundred and Forty Two Dollars ($6l 8,842.00) which funds shall be only for expenses incurred in performing activities specified in the Application and as may be further described in Exhibit A to this Agreement or as approved by the County. Approved assessment and/or clean-up activities as may be described in the application and Exhibit A are referred to herein as the "Project". Administrative costs incurred by Grantee are not eligible for reimbursement. Grantee agrees the Project shall be completed 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. 2. ACCOUNTING AND RECORD KF,EPING 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. 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 Grantee and involve transactions relating to this Agreement. Such materials shal I 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. 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 this Agreement 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. CON"TRACTS 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. [n 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. 6. TERM1NATlON, 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 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 rmay 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 eligible for grant payment under this Agreement. The remedies stated in this Section 6 are the sole remedies available to the County for a default by Grantee in the performance of its obligations or undertakings under this Agreement, except as otherwise expressly provided in the last sentence of Section 9 of this Agreement. This Agreement may not be assigned without the prior written consent of the County. The County acknowledges it has been advised that all or part of the Project may be completed and the activities specified in the Application performed by the private developer or developers of the Project and that Grantee may enter into Subrecipient Agreements with such developer(s) related to the performance of such Project activities and disbursement of grant funds to such developer(s) for the performance of eligible Project activities. Any such Subrecipient Agreements shall incorporate the terms and conditions of this Agreement and require the parties thereto to comply with them. 7. INDEPENDENT CONTRACTOR Grantee shall select the means, method, and manner of performing the activities 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 Grantee as the agent, representative, or employee of the County for any purpose or in any manner whatsoever. 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 Grantee or other persons while engaged in the performance of any work or services required by 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 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 Grantee, its ofifcers, agents, contractors, or employees shall in no way be the responsibility of the County. 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 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 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 specited 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 fully, in any respect, all obligations 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 52,000,000 Products-Completed Operations Aggregate 2,000,000 Personal and Advertising Injury 1,000,000 Each Occurrence - Combined Bodily Injury and Property Damage 1,000,000 Automobile Liability -Combined single limit each occurrence for 1,000,000 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 Professional Liability -Per Claim and Aggregate 1,000,000 The insurance must be maintained continuously for a period of two years after the termination of this Agreement. The above insurance requirements may be satisfied by the maintenance of the required insurance coverages by the developer(s) completing the Project and performing activities eligible for grant funding. 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. Copies of policies shall be submitted to the Colmty upon written request. Grantee shall not commence work until it and any contractors have obtained the required proof of insurance which clearly evidences required insurance coverages. If Grantee fails to furnish proof of insurance 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, that are related to the failure to provide proof of insurance. 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 hereto. MINNESOTA LAWS GOVERN "I'he 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. The Remainder Of This Page Was Intentionally Left Blank COUNTY BOARD APPROVAL The City of Hopkins, having signed this agreement, and the Hennepin County Board of Commissioners having duly approved this agreement on the day of , 2008, 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. ATTEST: COUN"I•Y OF HENNEPIN STATE OF MINNESOTA By: By: Deputy/Clerk of the County Board Chair of its County Board Date: Date: REVIEWED BY COUNTY ATTORNEY'S OFFICE: And: Richard P. Johnson, County Administrator By: Date: Assistant County Attorney Date: And: Assistant County Administrator, Public Works Date: RECOMMENDED FOR APPROVAL By: Director, County Department of Environmental Services Date: GRANTEE Grantee certifies that the person who executed this Agreement is authorized to do so on behalf of Grantee as required by applicable articles, bylaws, resolutions or ordinances.* CITY OF HOPKINS By: Title: Printed Name: 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. HCA Form No. 101 2008 (Revised l l/07) 5 Exhibit A City of Hopkins Project Summary The project site, located on Mainstreet to 1 `` Street North and between 5`~' and 6`'' Avenue Nortll, is 2.26 acres in size and consists of a'/4 of a city block occupied by the Hopkins Park Plaza Hotel (multiple buildings), two houses, a former auto repair and gas station, an active gas station and paved parking areas. Three petroleum releases have been reported at the project site and petroleum-, Polynuclear aromatic hydrocarbon- and arsenic-contaminated soil are present at the project site. Petroleum-contaminated groundwater also is present The developer intends to demolish the existing buildings and replace them with one large four and five-story mixed-use, commercial/residential building with a raised plaza atop two levels of parking. The planned redevelopment, titled Fifth Avenue Flats, will result in 254 rental units, all of which wi I I be market rate ($1,150 - $ l ,900 /month). Per the Sun Newspaper, the project is being referred to as luxury-apartment complex. An underground parking ramp will extend across the entire project site. This project previously received one ERF grant of $28,91 1 for assessment (Spring 2005), and another has been committed $283,1 18 for cleanup (Spring 2007). Since then, a new developer has been retained by the city and the project has been sufficiently modified to nullify the previous cleanup grant. ERF assistance is requested for costs associated with an additional assessment and investigation, asbestos and lead paint abatement, implementation of a Response Action Plan (RAP) including soil cleanup and vapor mitigation, and demolition of two structures (501 and 525 Mainstreet only), including tank and hoists removal, and removal and disposal of contaminated/stained concrete at the Block 64 site. The following costs are based on a budget submitted by Grantee. Modifications must be approved in writing by the County. Approved Budget for the Block 64 Site: Assessment/additional investigation activities: $ 74,670 Soil/groundwater cleanup and vapor mitigation: $378,834 Asbestos/lead paint abatement at 501 and 525 Mainstreet: $ 15,338 Demolition of 501 and 525 buildings, removal of tank and hoists, monitoring, all project reporting, and related consulting, contractor and MPCA tees: 150 000 Total: $618,842 Required Documentation to be Submitted to Henneain County: Consultant/Contractor/MPCA invoices Assessment and investigation repo--ts Soil and groundwater cleanup documentation and reports Pre-demolition and Hazardous Material Survey reports Abatement documentation Contaminated/stained concrete disposal documentation Tank and hoist removal documentation MPCA Approval letters Annual Project Progress/Summary Report(s). E-1 SUB-RECIPIENT AGREEMENT THIS AGREEMENT, made on or as of the day of , 2008, 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 Doran Pratt Development, LLC, a Minnesota limited liability company (hereinafter referred to as the "Redeveloper"), having its principal off ce at 7803 Glenroy Road, Suite 200, Bloomington, MN 55439. RECITALS: A. The Redeveloper is in the process of acquiring and 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 vapor mitigation and demolition of two structures on the Redevelopment Property; and C. At the request of the Redeveloper, the City applied for grant funds from 1-lennepin County's (the "County') Department of Environmental Services (the "Department") to provide funding for investigation and response actions described in the Application identified in Recital Paragraph D and in Exhibit A to the Grant Application and related to the contaminated soils and other work described in Recital Paragraph B on the Redevelopment Property (which investigation and response actions are referred to herein as the "Work'") and D. Pursuant to an Application to the County dated , 2008, (the "Application"'), the City was or shall be awarded an Environmental Response Fund Grant (the "Grant") in the amount of $618,842.00, 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 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: I fopCivil/SubRecipientngmt-DoranPrau 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 tlic 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 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. Redeveloper Obligations. 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: 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 copies of all Purchase Agreements and Option Agreements for parcels comprising the 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. 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 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). HopCivil/SubRecipient~lgnri-[~oranPratt 2 D. 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. E. 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 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 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. 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 Clty. F. 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. G. 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. If the 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, 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: I fopCivil/SubRccinicntngnri-Doranl'ratt 3 1. 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 $1,000,000 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. 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 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. 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. 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. HopCiviUSubRccipicntAgmt-UoranPratt 4 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. 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 manner 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• f-ands 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 harmless 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. 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 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 manner 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 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 I IopCiviUSubRccipientAgmt-[)oranPraU 5 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 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. 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 $245.00 per hour) in connection with the negotiation, preparation, approval, review, execution, delivery, amendment, modification, interpretation, collection and enforcement of this 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: .Ieremy S. Steiner, Esq. Steiner & Curtiss, P.A. 400 Wells Fargo Bank Building 1011 First Street South Hopkins, MN 55343 I IopCivil/subRccipicntngmt-DoranPratt If to Redeveloper: Doran Pratt Development, LLC Attention: Kelly Doran 7803 Glenroy Road, Suite 200 Bloomington, MN 55439 Copy to: 11. Miscellaneous. A. Governing 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 Agreement. This Agreement contains the entire agreement of the parties relating to t11e 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. 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 1 IopCiviUSubRecipicntAgmt-Doran Pratt 7 such provision and of this Agreement shall be unaffected and shall continue in full force and effect. H. Exhibits; Captions and Headlines; Interpretation. Cxhibit 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. Binding Effect. 'I'bis 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: DORAN PRATT DEVELOPMENT, LLC By Its 1 IopCivil/SubRccipicntflgmt-UoranPrau EXHIBIT A GRANT AGREEMENT 1 IopCivil/SubRccipicnt~lgmt-Doran Pratt