CR 11-119 Nine Mile Creek Watershed District0
December 6, 2011
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Council Report 2011-119
APPROVE AMENDMENT TO COOPERATIVE AGREEMENT WITH
9 MILE CREEK WATERSHED DISTRICT
CITY PROJECT NO. 2006-05
Proposed Action
Staff recommends the following motion: "Move that Council adopt Resolution 2011-068, Resolution Approving
Amendment to Cooperative Agreement with 9 Mile Creek Watershed District."
Overview
At the May 2, 2006, meeting, the Hopkins City Council petitioned the 9 Mile Creek Watershed District to
improve 9 Mile Creek with a bank stabilization project. As you are aware, contamination has been found in the
first phase of the project. We and the watershed district have worked with the MPCA to formulate the clean up
plan. Work between Excelsior Boulevard and Valley Park will commence in the next couple of weeks.
gffhe second phase of the project (Valley Park to Hwy 169) has been awarded to Sunram Construction, and work
MRs anticipated to begin in the next several weeks. Minor contamination was also found in this segment and
MPCA has approved a work plan for dealing with contaminated soils.
The City secured $60,000 in grants from Hennepin County to develop the contamination clean up plans.
The proposed amendment and restatement of the agreement combines the original agreement and first two
amendments with additional updates into a single document. It also clarifies issues relating to the warranty on
the 5t` Street Bridge, indemnification, and procedures for carrying out the agreement. The previous agreement
and amendments are superseded by this amendment and restatement.
The City Attorney participated in the drafting of the amended agreement and recommends approval of the
document.
Supporting Information
■ Amendment to Cooperative Agreement
■ Resolution 2011-068
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Engineer
Financial Impact: $0 Budgeted: Y/N Yes Source: _N/A
Related Documents (CIP, ERP, etc.): _
Notes:
CITY OF HOPKINS
HENNEPIN COUNTY, MINNESOTA
RESOLUTION NO. 2011-068
RESOLUTION AMENDING COOPERATIVE AGREEMENT WITH
NINE MILE CREEK WATERSHED DISTRICT
WHEREAS, the City of Hopkins petitioned the Nine Mile Watershed District to complete
a restoration project along Nine Mile Creek from Excelsior Boulevard to the southern corporate
limits, and
WHEREAS, the City and the District agree that mitigating found contamination in 9 Mile
Creek is in the public interest, and
WHEREAS, the amendment delineates the rights and responsibilities of the City and the
District,
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Hopkins,
Minnesota:
1. The City adopts the Amended and Restated Cooperative Agreement with the Nine
Mile Creek Watershed District.
2. The Mayor and City Manager are hereby authorized and instructed to execute the
amendment.
Adopted by the City Council of the City of Hopkins this 6th day of December, 2011.
ATTEST:
Kristine A. Luedke, City Clerk
U
M
Eugene J. Maxwell, Mayor
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AMENDED AND RESTATED COOPERATIVE AGREEMENT
Between the Nine Mile Creek Watershed District
and the City of Hopkins
Nine Mile Creek Bank Stabilization and Habitat Enhancement Project, Hopkins
This Amended and Restated Cooperative Agreement is made by and between the Nine
Mile Creek Watershed District (hereinafter referred to as "NMCWD"), a watershed district
created pursuant to Minnesota Statutes Chapter 103D, and the City of Hopkins (hereinafter
referred to as "Hopkins"), a home rule charter city under Art. XII, sec. 4, of the Minnesota
Constitution.
Recitals and Statement of Purpose
WHEREAS, the NMCWD has an approved Water Resources Management Plan pursuant
to Minnesota Statutes Chapter 103B that has as a primary goal the improvement of water quality
• in Nine Mile Creek, including the reduction of sediment entering the creek,
WHEREAS, the stabilization of the stream bank and enhancement of riparian habitat
along the creek in Hopkins (hereinafter the "Project") will reduce sediment loading to Nine Mile
Creek;
WHEREAS, Hopkins has petitioned the NMCWD to undertake the Project, as a project
furthering the purposes and goals of the NMCWD;
WHEREAS, Hopkins and the NMCWD wish to cooperatively develop the design and
operations and maintenance plan for the Project;
WHEREAS, Hopkins and the NMCWD acknowledge that their ability to achieve Project
objectives depends on each party satisfactorily and promptly performing individual obligations
and working cooperatively with the other party;
WHEREAS, the parties previously entered into a Cooperative Agreement effective
March 21, 2007, as amended on July 6, 2010, and December 15, 2010 (the Original Agreement);
WHEREAS, the parties desire to amend and restate the Original Agreement;
IT IS AGREED by and between Hopkins and the NMCWD that they enter into this
Amended and Restated Cooperative Agreement to document their understanding as to the scope
of the Project, reaffirm their commitments as to the general responsibilities of and tasks to be
undertaken, establish procedures for performing these tasks and carrying out these
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responsibilities, and facilitate communication and cooperation to ensure successful completion of
the Project to achieve water -quality management goals through the stabilization of the banks and
enhancement of habitat along the Nine Mile Creek in Hopkins.
AGREEMENT
1. General Responsibilities and Performance Guidelines
1.1 Except as otherwise specifically stated herein, each party retains the final authority
concerning implementation of the tasks it assumes under this Agreement, but shall
provide the other party and the Implementation Team the opportunity to review and
comment on design plans and specifications, related plans, contractual documents and
other documents prepared pursuant to this Agreement.
1.2 All designs, written materials, technical data, research and any other work -in -progress
shall be shared between the parties to this agreement on request, except as prohibited by
law. As soon as is practicable, the party preparing plans, specifications, contractual
•
documents, materials for public communication or education will provide them to the
other party as drafts for review and comment.
2. Organization
2.1 Each party to this agreement shall designate two qualified persons to serve on the
Implementation Team. Appropriate persons are those having primary administrative or
supervisory responsibility for the tasks to be completed by the appointing party. The
Implementation Team shall serve as the administrative body through which the parties to
this agreement coordinate their day-to-day efforts regarding the Project.
2.2 Each party will use best efforts to coordinate and communicate informally, primarily
through the Implementation Team, so that any issues may be addressed and the plans and
specifications contemplated by this agreement may be approved as quickly as possible.
Members of the Implementation Team will meet frequently to ensure the integration of
the upstream and downstream designs for the Project.
2.3 Within 90 days after this agreement takes effect, the Implementation Team shall prepare
a plan for public participation, communication and education. Activities under the plan
shall be carried out individually or together as the plan may specify. Implementation
Team members may not commit to expenditures for public education plan
implementation that otherwise require approval of their respective governing bodies
unless that approval has been obtained.
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2.4 The NMCWD District Administrator will serve as one of the District's Implementation
Team representatives and will also serve as Project Coordinator and chair of the
Implementation Team. Pursuant the direction of the Implementation Team, the Project
Coordinator shall coordinate Project implementation and communication between the
parties. The Project Coordinator will ensure the integration of the upstream and
downstream designs for the Project into a single design document for purposes of
securing necessary permits, bidding and construction of the Project. The Project
Coordinator will ensure that all permits and other regulatory approvals necessary for the
Project are identified in the Project design document.
2.5 The Implementation Team will ensure that regulatory entities from whom permits or
other approvals will be necessary for the Project are consulted in advance of the
completion of the design of the Project and provided with opportunity to review and
comment on draft Project specifications and designs, and to otherwise provide guidance
on the permitting necessary for the Project.
2.6 The Implementation Team will solicit participation in a Technical Advisory Committee
• for the project by an appropriate representative from each of the following: the Minnesota
Board of Water and Soil Resources, the Minnesota Department of Natural Resources, the
United States Army Corps of Engineers, the Minnesota Pollution Control Agency,
Hennepin County, the Three Rivers Park District, and appropriate other agencies as
determined by the Implementation Team.
2.7 Within 180 days after this Agreement takes effect, the Implementation Team shall
prepare a plan for the maintenance of the Project, as contemplated by the terms of this
Agreement.
3. Specific Tasks and Responsibilities
3.1 NMCWD
3.1.1 The NMCWD shall prepare design plans and specifications for the portion of the Project
downstream of 9th Avenue. A significant portion of the project downstream of 9'h
Avenue runs through parkland, which will allow for a design that maximizes
opportunities for channel reconfiguration, bioengineered streambank stabilization,
stormwater management basin, habitat enhancement and other natural resources
restoration practices, as well as integration with the design for the upstream portion of the
Project. The NMCWD will present design plans and specifications to Hopkins for a
period of no less than thirty (30) days for review and comment.
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3.1.2 The NMCWD, through its District Engineer, will assure the entire project design is
feasible and that the upstream and downstream designs combine into a single design and
specifications document for project permitting, bidding, and construction purposes.
3.1.3 The NMCWD shall obtain all permits and regulatory approvals for the Project in the
name of NMCWD and Hopkins, with the cooperation and assistance of Hopkins.
3.1.4 The NMCWD will ensure that the design and construction of the Project conform with
the petition and basic water -management process of Minnesota Statutes chapter 103D.
The NMCWD will ensure that the design and construction of the Project and the
operation and maintenance plan for the Project conform with the NMCWD Water
Resources Management Plan, adopted and approved pursuant to Minnesota Statutes
chapter 103B.
3.1.5 In consultation with Hopkins, the NMCWD will develop bidding specifications in
accordance with the approved design for the Project, and let the Project for bids and
select a contractor in accordance with Minnesota procurement law. The NMCWD will
• present bidding specifications to Hopkins for a period of no less than thirty (30) days for
review and comment. The NMCWD will review all responsive bids received with
Hopkins before selecting a contractor for the Project.
3.1.6 The NMCWD will appoint the District Engineer to provide construction supervision and
oversight for the Project, except that the NMCWD will separately contract with the
designer -engineer retained by Hopkins to design the 5t° Street bridge for construction
supervision, oversight and certification of substantial completion in conformance with
plans and specifications for the 5th Street bridge. The NMCWD District Engineer also
will review contractor invoices for construction of the Project and will recommend
payment, except that the NMCWD will separately contract with the designer -engineer
retained by Hopkins to design the 5" Street bridge for the review of contractor invoices
and payment recommendations for construction of the 5`h Street bridge. NMCWD will
inform and review with Hopkins any change orders which in the judgment of the District
Engineer or the designer -engineer providing oversight of the 50' Street bridge are
significant in terms of project design or maintenance.
3.1.7 NMCWD will retain the designer -engineer retained by Hopkins to develop plans and
specifications for the 5`h Street bridge to provide construction supervision, oversight and
certification of substantial completion of the 50' Street bridge. The NMCWD will be
responsible for 5"' Street bridge construction contract procurement and coordination of
construction management with overall project management. Notwithstanding the
foregoing, NMCWD provides no warranty to Hopkins regarding third -party performance
in design, construction or construction management. On request, NMCWD will facilitate
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Hopkins' monitoring of the work, attendance at construction meetings and access to
contract documents. On certification that the construction of the 5h Street bridge is
complete, ownership of the bridge will vest in Hopkins. Hopkins will be responsible for
the structural condition and maintenance of the bridge. NMCWD will pursue, at its
expense and with legal counsel selected by NMCWD, reasonably available remedies for
breach of contract or for any failure of the 51h Street bridge to perform in accordance with
industry and applicable safety and performance standards. NMCWD will consult
Hopkins as to the viability of contractual claims, but will retain sole discretion to
determine reasonably available remedies. NMCWD agrees Hopkins will be entitled to be
joined as a party in any such proceeding, either as an original named party or by
intervention. In the event NMCWD elects not to pursue a particular claim or cause of
action, NMCWD will, at Hopkins' request, assign all rights thereto to Hopkins. Hopkins
will be solely responsible for and pay all attorney fees, costs and expenses it incurs in
connection with its participation in any such proceeding.
3.1.8 NMCWD will cooperate with Hopkins in all communications and outreach to property
• owners affected by the Project and to property owners from whom additional easements
may be required to facilitate the Project.
3.1.9 NMCWD may, in its sole discretion, serve as a co -applicant and will participate in efforts
required to secure technical assistance and/or a letter or letters of liability assurance from
the Minnesota Pollution Control Agency (MPCA) through the MPCA's voluntary
investigation and cleanup (VIC) program for Hopkins and NMCWD for the Project. The
NMCWD and Hopkins will jointly determine the level of liability assurance from VIC
necessary for the Project. NMCWD further agrees to provide all reasonable assistance,
including but not limited to providing information on Project site environmental
conditions produced pursuant to the terms of this Agreement, to any landowner whose
interests are implicated by the Project, subject to the Data Practices Act and other
applicable law.
3.1.10 Upon approval of Hopkins, NMCWD will contract with an environmental consultant to
perform additional phase H environmental site assessment work for the Project area as
may be necessary in response to guidance from and discussions with the MPCA.
NMCWD will contract with an environmental consultant to design a Response Action
Plan and/or Work Plan and associated Site Contingency Plan (collectively, a RAP)
acceptable to NMCWD to be submitted to MPCA and to revise the RAP if necessary to
respond to guidance from and discussions with MPCA.
3.1.11 Upon MPCA's approval of a RAP acceptable to NMCWD, acquisition by Hopkins of
easements satisfactory to NMCWD, securing grant funds from Hennepin County, and
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approval of the NMCWD Board of Managers and Hopkins, NMCWD will contract for
the execution of the RAP in accordance with Minnesota procurement law.
3.1.12 NMCWD may contract for the environmental investigation and execution of the RAP in
stages to facilitate timely and efficient conduct of the Project.
3.1.13 NMCWD will timely provide to Hopkins all information necessary for the administration
of grant funding received for Project.
3.2 Hopkins
3.2.1 Hopkins shall prepare design plans and specifications for the portion of the Project
upstream of 9th Avenue. The plans and specifications will be appropriate to the confined
and developed character of the upstream segment of the creek and will rely on
conventional solutions to erosion problems in built environments, but will also include
native vegetation and habitat enhancement to the greatest extent possible to ensure
integration with the design for the downstream portion of the Project. Hopkins will
submit these upstream design plans and specifications to the NMCWD District Engineer
to be integrated into a single design document for the entire project.
3.2.2 Hopkins shall review and comment to NMCWD on the design and bidding specifications
for the project within thirty (30) days of receipt from the NMCWD.
3.2.3 Hopkins will conduct surveys necessary for the Project, produce easement descriptions
necessary for the Project and negotiate all agreements with property owners or otherwise
undertake the legal means necessary for acquisition of property rights necessary for the
Project, including easements or other property rights necessary for the Project in publicly
owned right-of-way, easements or other property rights necessary for the Project on land
owned by private parties, and easements or other property rights necessary for the long-
term operations and maintenance of the Project. Hopkins will inform NMCWD of
property acquisition costs and obtain NMCWD approval of such costs prior to acquiring
the necessary easements or other property rights for the project, as provided in paragraph
4.1.3.
3.2.4 Hopkins shall cooperate with the NMCWD to obtain any permits and approvals needed
for the Project and act to facilitate the proper and efficient processing of all applications
from the NMCWD for approvals for the Project that lie within its authority, including,
without limitation applying for permits in Hopkins' name as necessary.
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3.2.5
Hopkins will provide, through its engineering consultant, liaison services to affected
property owners through the planning and design, property acquisition, and construction
phases of the project. Hopkins, by its review and comment on NMCWD's contractual
decisions, shall not be considered a party to the contract.
3.2.6
Hopkins shall own all facilities created or installed in fulfillment of the terms of this
agreement. Hopkins shall afford all means of access to and on the land that is or will be
the location of the facilities to be constructed or constructed under the terms of agreement
as is necessary and convenient for construction the NMCWD's performance of its
responsibilities under this agreement and as necessary for the continuing fulfillment of
the goals and objectives of NMCWD's approved water management plan and, as
necessary, the maintenance plan for the Project. Hopkins will secure work -in -progress
insurance for the construction of the 5th Street bridge.
3.2.7
Hopkins shall be responsible for ordinary maintenance of the Project according to the
plan developed by the Implementation Team pursuant to paragraph 2.7.
• 3.2.8
Hopkins will communicate with and conduct outreach to property owners affected by the
Project and will acquire additional easements as required by the NMCWD to facilitate
conduct of environmental assessment and execution of a RAP for the Project.
3.2.9
Hopkins will cooperate and consult with NMCWD on the conduct of the environmental
assessment and the development and implementation of a RAP. Hopkins' approvals, as
provided in section 3 of the Agreement, as amended, will not be unreasonably withheld.
3.2.10
Hopkins will be responsible for administration of grant funding received for the Project,
including required reporting. Hopkins will make any and all grant funds received by
Hopkins for or in connection with the Project available to NMCWD.
3.2.11 Hopkins will enroll the Project in the VIC program and will participate in efforts required
to secure technical review and/or a letter or letters of liability assurance from MPCA for
Hopkins and NMCWD for the Project. Hopkins and the NMCWD will jointly determine
the level of liability assurance from MPCA necessary for the Project. If Hopkins and
NMCWD do not agree on the level of liability assurance to seek, the NMCWD may
terminate its involvement in all or any portion of the Project. Hopkins further agrees to
provide all reasonable assistance, including but not limited to providing information on
Project site environmental conditions produced pursuant to the terms of this Agreement,
to any landowner whose interests are implicated by the Project, subject to the Data
Practices Act or other applicable law.
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3.2.12 Hopkins will select the designer -engineer to develop plans and specifications for the 5`h
Street bridge and to provide construction supervision, oversight and certification of
substantial completion of the 5`s Street bridge. Hopkins agrees and acknowledges that: (i)
NMCWD is undertaking no responsibility for the 5`h Street bridge other than NMCWD's
agreement to retain the designer -engineer selected by Hopkins; (ii) NCMWD is not and
shall not be the owner of the 5th Street bridge; and (iii) NMCWD provides no warranty to
Hopkins regarding the design, construction, construction management or third -party
performance associated with the 5'h Street bridge. On certification by the designer -
engineer selected by Hopkins that the construction of the 5`" Street bridge is complete,
ownership of the bridge will vest in Hopkins. Hopkins will be solely responsible for the
structural condition and maintenance of the bridge.
3.2.13 Hopkins specifically agrees and acknowledges that NMCWD and the District Engineer
are not undertaking any independent review of the design or specifications for the 5"'
Street bridge and to the extent that NMCWD engages in any such review, Hopkins is not
relying on NMCWD for such review. Hopkins hereby waives any and all claims against
NMCWD arising from and releases NMCWD from liabilities associated with
is construction of the 5"' Street bridge, including without limitation, the design,
construction, materials for and used in the bridge, its suitability for the purpose intended,
or its structural integrity.
4. Cost-sharing
4.1 Easement costs
4.1.1 Hopkins shall be responsible for seventy-five percent (75%) of total costs of easements
and other property rights necessary for the Project and seventy-five percent (75%) of all
other costs related to acquisition of property rights necessary for the Project, including
appraisals, legal fees and property owner compensation.
4.1.2 The NMCWD shall be responsible for 25 percent of total costs of easements and other
property rights necessary for the Project and 25 percent of all other costs related to
acquisition of property rights necessary for the Project, including appraisals, legal fees
and property owner compensations.
4.1.3 Hopkins will provide NMCWD with the proposed costs of any easement necessary for
the Project no fewer than thirty (30) days prior to the acquisition or commitment to the
acquisition of the easement for review and approval. Failure to comply with this
provision of this Agreement will result in Hopkins assuming responsibility for 100
percent of the costs of any easement acquired or for which Hopkins has entered into a
commitment to acquire.
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4.1.4 Hopkins will initially pay 100% of the costs of easements and other necessary property
rights, and upon completion of the acquisition process submit an invoice to NMCWD for
reimbursement of 25% of the approved costs.
4.2 Water resources costs
4.2.1 NMCWD shall be responsible for all project costs related to the construction of the
water -management facilities of the Project, as described and specified in the design
documents prepared pursuant to sections 3. 1.1 and 3.2.1 of this agreement, including but
not limited to stream bank stabilization; culvert repair and replacement; construction of
ponds; delineation, dredging, improvement, invasive -species removal and revegetation of
wetlands.
4.3 Miscellaneous costs
4.3.1 Hopkins shall be responsible for 50 percent of any non -water resources related costs not
otherwise addressed in this Agreement for the Project, including, but not limited to, costs
for materials for and construction of trails, bridges, signage, etc. and other non -water
resources related items, and Hopkins will be responsible for up to an additional twenty-
five thousand dollars ($25,000) of all costs for decorative and aesthetic elements of the
50' Street bridge.
4.3.2 The NMCWD shall be responsible for 50 percent of any non -water resources related
costs not otherwise addressed in this Agreement for the Project, including, but not limited
to, costs for materials for and construction of trails, bridges, signage, etc.
4.3.3 NMCWD will be responsible for the costs of construction supervision, oversight and
certification of substantial completion for the 5"' Street bridge associated with the
designer -engineer selected by Hopkins as provided by paragraphs 3.1.7 and 3.2.12 of the
Agreement.
4.3.4 NMCWD will be responsible for the costs of any other services requested by Hopkins
and agreed to by NMCWD, including the rates and total amount of such services, in
advance.
4.4 Costs of Environmental Assessment, Development and Implementation of RAP,
VIC Program Participation
4.4.1 Each party will pay its internal costs of its participation in the development and execution
of the environmental assessment and the development and implementation of the RAP.
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4.4.2 NMCWD will be responsible for the contracted costs of the development and execution
of the environmental assessment, the development and implementation of the RAP, and
the costs of participation in the VIC program, except that Hopkins will contribute up to
$25,000 to costs for Hopkins' participation in the VIC program, execution of
environmental assessment, and implementation of the RAP. Grant funding received by
either or both of the parties for the Project will reimburse NMCWD for the contracted
costs of the environmental assessment work, the development and implementation of the
RAP and the costs of participation in the VIC program.
5. Schedule
The parties will use best efforts to complete the Project according to the schedule
included as Attachment A to this agreement.
6. Mutual Indemnification
Hopkins and the NMCWD enter this Agreement solely for the purposes of stabilizing the
banks and improving habitat along the Nine Mile Creek in Hopkins. Accordingly, with
respect to any and all activity undertaken pursuant to this Agreement, Hopkins and the
NMCWD shall each hold harmless, defend and indemnify the other, its officers,
employees and agents for all claims, damages, liabilities, losses and expenses asserted
against the other party at any time by any third party, including any governmental body.
Notwithstanding section 11 or any other provision of this agreement, Hopkins' and the
NMCWD's obligations under this paragraph shall survive the termination of the
agreement. As between the NMCWD and Hopkins, nothing in this Section 6 or any other
agreement for the Project, including but not limited to the Nine Mile Creek Regional
Trail Cooperative Agreement entered into by the NMCWD, Hopkins, the City of
Minnetonka and the Three Rivers Park District for the trail -construction components of
the Project, will modify or limit Hopkins' obligations under section 7 hereof nor impose
on NMCWD any obligations related to environmental contamination in the Project area,
except as explicitly agreed to herein.
7. Environmental Contamination Indemnification and Contract Provisions
7.1 NMCWD enters this Agreement solely for the purposes of ensuring that the Project is
completed as intended by the Parties. NMCWD does not have, has not had, and shall not
be deemed to have acquired by entry into or performance under this Agreement, any form
of interest or ownership in or to any portion of the real property that is part of or adjacent
to the Project. NMCWD does not exercise, has not exercised, and shall not by entry into
or performance under this Agreement be deemed to have exercised, any form of control
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over the use, operation or management of any portion of the real property that is part of
or adjacent to the Project, as to render NMCWD a potentially responsible party for any
contamination under state and/or federal law.
7.2 Section 6 notwithstanding, Hopkins will hold harmless, defend and indemnify NMCWD,
its officials and employees for any and all claims, damages, liabilities, costs, losses, fines,
enforcement actions, penalties, remediation or cleanup costs, actions required or ordered
to be taken, and/or expenses brought or asserted by any third party, including without
limitation, any governmental entity, relating to or arising out of any actual, alleged or
suspected environmental conditions or the presence of any substances, whether
hazardous, infectious, radioactive, toxic, controlled or otherwise, at, on, under, adjacent
to, or near the real property that is part of the Project, or resulting from the Project (the
Indemnified Liabilities). Notwithstanding the forgoing, Hopkins shall not be obligated to
defend, indemnify and hold harmless any contractor to the extent that the contractor has
agreed to hold harmless, defend and indemnify NMCWD and Hopkins. Further
notwithstanding the forgoing, Hopkins shall not be obligated to defend, indemnify, and
hold harmless NMCWD from any Indemnified Liabilities to the extent of the negligence
. or intentional wrongful act of NMCWD, its officials, employees or agents. Hopkins'
obligations under this Section shall survive any tennination of the Agreement.
7.3 The obligations of Hopkins under this Section 7 shall not arise or be applicable with
respect to any Indemnified Liabilities to the extent any contractor retained by Hopkins or
NMCWD is obligated to hold harmless, defend and indemnify either Hopkins or
NMCWD from such Indemnified Liabilities pursuant to the contract entered into between
such contractor and Hopkins or NMCWD, as the case may be.
7.4 In any contract for the performance of the Project, including the environmental
investigation and execution of an approved RAP or its material equivalent, NMCWD
and/or Hopkins, as applicable, agrees to include provisions requiring that the contractor
indemnify, defend and hold harmless the NMCWD and Hopkins, their officials, agents
and employees, from and against the Indemnified Liabilities arising from the contractor's
negligent performance of its obligations and duties under such contract or failure to
conform to the contract or the RAP.
7.5 By entering into this Agreement, Hopkins does not admit liability or responsibility for
any contamination or environmental condition(s) present or discovered as a result of the
Project and Hopkins' entry into and performance under this Agreement shall not be
construed as an admission of such responsibility or liability.
7.6 NMCWD shall promptly notify Hopkins of the occurrence of any Indemnified Liabilities
and shall request Hopkins to promptly respond and hold harmless, defend and indemnify
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NMCWD. Hopkins shall be entitled to defend and contest the Indemnified Liabilities
with counsel selected by Hopkins and reasonably acceptable to NMCWD and shall be
entitled to intervene in any proceeding in which the Indemnified Liabilities are asserted.
7.7 Contract Provisions. NMCWD agrees that it shall include a provision in all contracts
entered into by NMCWD pursuant to Cooperative Agreement, a requirement that such
contractors conduct their activities in conformance with all provisions of any applicable
easements entered into between Hopkins and the property owners affected by the Project,
with any approved RAP, and in compliance with all applicable laws and regulations.
8. Amendments
This agreement may be amended only by a writing signed by both parties.
9. Entire Agreement
This Agreement contains the complete and entire agreement between the parties relating
to the subject matter hereof, and supersedes all prior negotiations, agreements,
representations and understandings, if any, between the parties respecting such matters,
including without limitation, the Original Agreement.
10. Notice
Notice to a party to this agreement shall be given by hand delivery or first-class mail
addressed to a representative of the party on the Implementation Team.
11. Termination
This agreement shall terminate five (5) years from the date of execution of the latest
amendment hereto, or on the written agreement of both parties hereto.
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IN WITNESS WHEREOF, the parties have executed this Agreement.
NINE MILE CREEK WATERSHED DISTRICT
a political subdivision of the State of Minnesota
Bic , P.A. -
Its President
Dated: %\/\to/ h
CITY OF HOPKINS,
a home rule charter city
By
Its Mayor
Dated:
APPROVED AS TO FORM
AND EXE 9N
By
District o sel
APPROVED AS TO FORM
AND EXECUTION
City Attorney
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