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46 - PC 17-09 7201 Bass Lake Road underground stormwater treatment maint agreement Trans'er Entered Nov 14, 2018 10:24 AM 11111111 1111111 11111111411 1111 Doc No T05574817 Hennepin County, Minnesota Mark Chapin Certified, filed and/or recorded on County Auditor and Treasurer Nov 14, 2018 10:24 AM Office of the Registrar of Titles Hennepin County, Minnesota Martin McCormick, Registrar of Titles Mark Chapin, County Auditor and Treasurer Deputy 98 Pkg ID 1759597C Document Recording Fee $46.00 Document Total $46.00 Existing Certs 1472369 This cover sheet is now a permanent part of the recorded document. ( M AGREEMENT AND EASEMENT TO MAINTAIN UNDERGROUND STORMWATER TREATMENT SYSTEM THIS AGREEMENT is made and entered into as of the Ziel day of May, 2018, by and between LAMA Holdings LLC, a Minnesota limited liability company (the "Owner"), and the City of New Hope, a Minnesota municipal corporation("City"). WITNESSETH: WHEREAS, Owner is the fee owner of that parcel of real property in the City of New Hope, County of Hennepin, State of Minnesota commonly known as 7201 Bass Lake Road, New Hope,MN,PID No. 05-118-21-34-0073 and legally described as follows: The North 174 feet of Lot 41; and that part of the North 174 feet of Lot 42,lying West of the East 495 feet thereof,all in the Auditor's Subdivision No. 226, Hennepin County,Minnesota (the"Property"); WHEREAS, Owner is constructing two principle buildings for the operation of a gas station,convenience store and car wash on the Property(the"Project"); WHEREAS,an underground stormwater treatment system comprised of a series of water storage tanks,various catch basins, storm sewer piping,roof drain connections, and trench drains, all graphically depicted on the attached Exhibit A(collectively,the"Storm Basins")(the entire stormwater treatment system shall be collectively referred to herein as the"Stormwater System") shall be constructed on the Property by Owner; WHEREAS,the purpose of this Agreement is to ensure Owner's performance of regular maintenance of the Stormwater System; WHEREAS, as part of this Agreement, Owner shall convey to the City an easement over the Property for access to maintain the Stormwater System, in the event Owner fails to perform the maintenance obligations set forth herein; and WHEREAS, the City has given approval to Owner to construct the Project along with the Stormwater System subject to compliance by Owner with certain conditions, including entering into this Agreement with the City. NOW, THEREFORE, in consideration of mutual covenants of the parties set forth herein and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the parties agree as follows: 1. Construction and Maintenance of the Underground Stormwater Treatment System. Owner and its successors or assigns as fee owner of the Property shall be responsible for constructing,maintaining, operating, and repairing all portions of the Stormwater System as graphically depicted on Exhibit A, attached hereto. This maintenance includes the following: a. Remove litter, debris, and accumulated sediment from the Storm Basins, including inlet, outlet, and/or pretreatment structures. b. Storm Basins shall not be used to stockpile snow, or for snow catchment areas from parking lots because of sediment accumulation. c. Maintain the integrity and viability of the Storm Basins in a way which does not compromise the effectiveness of the design. Owner and its successors or assigns as fee owner of the Property shall be solely responsible for observing all Drainage Laws governing the operation and maintenance of the Stormwater System contained within the Easement on the Property. Owner, at Owner's sole cost and expense, shall provide the City with a schedule acceptable to the City for inspection of the Stormwater System and any outlet control structures. Owner shall make all such scheduled inspections, keep records of all inspections and maintenance activities, and upon receipt of request from the City from time to time, submit such records annually to the City. The cost of all inspections and maintenance within the Easement, shall be the obligation of Owner and its successors or assigns as the fee owner of the Property. Further, Owner and its successors or assigns, shall meet all of the requirements of the City's MS4 permit (Part 3.D.5.a.(5).(a)-(c)) relating to the Stormwater System and comply with all structural stormwater best management practices (BMP's) as determined by the City, and observe all applicable drainage laws governing the operation and maintenance of the Stormwater System. 2. Schedule of Maintenance: Owner, at its sole cost and expense, shall inspect and maintain the Stormwater System, including all inlet, outlet, and/or control structures, twice a year. Inspections and maintenance shall be completed in the Spring and Fall. Owner's representative shall make all such scheduled inspections,keep record of all inspections and maintenance activities, and upon receipt of request from the City from time to time, shall submit such records to the City. The cost of all inspections and maintenance shall be the obligation of Owner and its successors or assigns as the fee owner of the Property. 3. City's Maintenance Rights. The City may maintain the Easement and Stormwater System contained therein, as provided in this paragraph, if the City reasonably believes 2 • that Owner or its successors or assigns have failed to maintain the Easement and Stormwater System in accordance with applicable Drainage Laws and BMP's, and such failure shall continue for thirty (30) days after the City shall give Owner written notice of such failure. The City's notice shall specifically state which maintenance tasks are to be performed. If Owner shall not complete the maintenance tasks within thirty (30) days after such notice is given by the City, the City shall have the right to enter upon the Easement to perform such maintenance tasks. In such case, the City shall send an invoice of its reasonable maintenance costs to Owner or its successors or assigns, who shall pay said costs within thirty (30) days of receipt of said invoice. Notwithstanding the foregoing, in the event of an emergency, as determined by the City Engineer, the thirty (30)-day notice requirement to Owner for failure to perform maintenance tasks shall be and hereby is waived in its entirety by Owner, and Owner shall reimburse the City for any expense so incurred by the City in the same manner as if written notice as described above has been given. Periodic City inspections may be conducted by a City representative. Owner agrees the City may levy and collect its maintenance costs as a special assessment against the Property's real estate taxes in the event the City fails to receive payment of the maintenance costs in accordance with this paragraph. Owner further agrees the maintenance costs incurred by the City per this paragraph resulting from the City's elimination of a public health or safety hazard from private property per Minn. Stat. §429.101. 4. Grant of Easement to City. Owner does hereby grant,bargain and convey unto the City,its successors and assigns, forever, a permanent easement including full and free right and authority to enter upon the Property to reasonably access the Stormwater System and to maintain the Stormwater System constructed thereon("Easement"), in the event Owner fails to do so. The Easement shall continue forever as a permanent easement over,under and across the Property and the City shall have the right to make such use as is reasonably necessary and advisable in the maintenance of the Stormwater System,in the event Owner fails to abide by the maintenance terms set forth herein. Notwithstanding the foregoing,the Easement shall automatically terminate if the Stormwater System is removed from the Property. 5. Hold Harmless. Owner agrees to indemnify and hold harmless the City and its agents and employees against any and all claims, demands, losses, damages, and expenses (including reasonable attorney's fees) arising out of or resulting from Owner or its agent's, employee's, and/or representative's negligent or intentional acts, or any violation of any safety law, regulation or code in the performance of this Agreement, without regard to any inspection or review made or not made by the City, its agents, employees or representatives or failure by the City, its agents, employees and representatives to take any other prudent precautions. In the event the City, upon the failure of Owner to comply with any conditions of this Agreement, performs said conditions pursuant to its authority in this Agreement, Owner shall indemnify and hold harmless the City, its agents, employees and representatives for its own negligent acts in the performance of Owner's required work under this Agreement. 3 6. Costs of Enforcement. In the event Owner and/or City resorts to litigation to enforce the terms of this Agreement, the non-prevailing party(ies) shall reimburse the prevailing party(ies) for all reasonable litigation costs, including attorney's fees incurred by the prevailing party(ies)in such litigation. 7. Notice. All notices required under this Agreement shall either be personally delivered or be sent by certified or registered mail and addressed as follows: Owner LAMA Holdings LLC 7201 Bass Lake Road New Hope,MN 55428 City Kirk McDonald, City Manager City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 kmcdonaldAci.new-hope.mn.us All notices given hereunder shall be deemed given upon delivery when personally delivered, sent via U.S. mail, certified mail, return receipt requested, postage prepaid, or sent via nationally recognized overnight courier service, and properly addressed as provided herein. 8. Successors. All duties and obligations of Owner under this Agreement shall also be duties and obligations of Owner's successors and assigns. 9. Effective Date. This Agreement shall be binding and effective as of the date hereof. 10. Recording of this Agreement. Once this Agreement has been fully executed, it shall be delivered to the City Attorney for recording with the office of the Hennepin County Registrar of Titles. 11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF,we have hereunto set our hands and seals. 4 SIGNATURE AND NOTARY PAGES FOR AGREEMENT AND EASEMENT TO MAINTAIN UNDERGROUND STORMWATER TREATMENT SYSTEM City of New Ho t� iY• B ad�u syn/h Kathi mken Its: Mayor \\By: A---- NiTh Kirk McDonald Its: City Manager STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me thiscA5- day of May, 2018, by Kathi Hemken, and Kirk McDonald,the Mayor and City Manager,respectively, of the City of New Hope,a Minnesota municipal corporation, on behalf of sa. municipal corporation. Notary Public ,e: < VALERIE J LEONE 1 1'°^4:;) Notary Public-Minnesota ''f`r" Commission Expires Jan 31,2020 pro My 5 • Owner LAMA Holdings LLC By: Chi's-foph6,i Ao66,/4 3 6„--z � Its: Pcc 54e4-f STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing/n�i trument was acknowledged before me this e C 1"day of May, 2018, by e J1 5`� �ti s b IN; the I/ i as- of LAMA Holdings LLC, a Minnesota limited liability company, on behalf of said limited liability company. Notary Public . DRAFTED BY: DONALD K.KLEINSCHMIDT NOTt Y Pl:13I IC ► : 0,11;000 IA 0 JENSEN SONDRALL PERSELLIN&WOODS,P.A. � •4 My Commission Expires Jan 31,2020: 1 8525 Edinbrook Crossing,#201 Brooklyn Park,MN 55443 (763)424-8811 6 Exhibit A Underground Stormwater Treatment System See attached. 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