47 - PC 17-12 2773, 2765 Virginia underground stormwater treatment maint agreement NEN I 11
Doc No T05574818
Certified, filed and/or recorded on
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
Multiple Certificates Affected Fee $20.00
Document Total $66.00
Existing Certs
1452214, 1452215
This cover sheet is now a permanent part of the recorded document.
AGREEMENT AND EASEMENT TO MAINTAIN UNDERGROUND
STORMWATER TREATMENT SYSTEM
THIS AGREEMENT is made and entered into as of the t3 day of August, 2018, by
and between The Lodge of New Hope LLC, a Minnesota limited liability company ("Lodge")
and The Evangelical Lutheran Good Samaritan Society, a North Dakota non-profit corporation
("Good Samaritan") (Lodge and Good Samaritan shall sometimes be jointly referred to herein as
the"Owners"), and the City of New Hope, a Minnesota municipal corporation("City").
WITNESSETH:
WHEREAS, Lodge is the fee owner of real property located at 2773 and 2765 Virginia
Avenue North in the City of New Hope, Hennepin County, Minnesota, adjacent to the Good
Samaritan campus and legally described as follows:
Lot 1,Block 1,Ambassador Second Addition,Hennepin County,Minnesota
(sometimes referred to herein as"Lot 1")
WHEREAS, Good Samaritan is the fee owner of the parcel adjacent to Lot 1, located at
8100 27th Avenue North, and legally described as follows:
Lot 2, Block 1, Ambassador Second Addition, Hennepin County, Minnesota
(sometimes referred to herein as "Lot 2")
(Lot 1 and Lot 2 collectively referred to as the "Property")
WHEREAS,an underground stormwater treatment system comprised of a subsurface rate
control basin to be located on Lot 1,various catch basins and storm sewer piping to be located on
both Lot 1 and Lot 2,and a swale to be constructed under a hallway that links the buildings on both
Lot 1 and Lot 2,which serves as the emergency stormwater overflow area and an existing
subsurface sand filter and vegetated swale located on Lot 2 (jointly,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 the Lodge and Good Samaritan;
WHEREAS,the purpose of this Agreement is to ensure Owners'performance of regular
maintenance of the Stormwater System;
WHEREAS, as part of this Agreement, Owners shall convey to the City an easement over
the Property for access to maintain the Stormwater System, in the event Owners fail to perform the
maintenance obligations set forth herein; and
WHEREAS, the City has given approval to the Stormwater System subject to
compliance by Owners 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.
Owners and their successors or assigns as fee owners 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, including all native perennial
vegetation, in a way which does not compromise the effectiveness of the design. All
established vegetation should be checked for survival and replaced as quickly as
possible with similar plant species.
d. Maintain the depth of the Storm Basins and ensure that it does not fill up with
sediment or debris.
e. Control weeks and noxious species. This can be done with spot spraying, weeding, or
selective cutting.
f. Water all plants to maintain an adequate supply of moisture in the root zone. An
adequate supply of moisture shall be considered 1 inch of absorbed water per week
either through natural rainfall or augmented by periodic watering. Apply water at a
moderate rate so as not to displace the mulch or flood the plants.
Owners and their successors or assigns as fee owners of the Property shall be jointly and
severally responsible for observing all Drainage Laws governing the operation and maintenance
of the Stormwater System contained within the Easement on the Property. Owners, at Owners'
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. Owners 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 Owners
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and their successors or assigns as the fee owner of the Property. Further, Owners and their
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: Owners, at their 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.
Owners' 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 Owners and their 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
that Owners or their 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 Owners written notice
of such failure. The City's notice shall specifically state which maintenance tasks are to
be performed. If Owners 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 Owners or their 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 Owners for failure to perform maintenance tasks shall be
and hereby is waived in its entirety by Owners, and Owners 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. Owners agree 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. Owners
further agree 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. Owners do 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 and to maintain the Stormwater System
constructed thereon("Easement"), in the event Owners fail 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 Owners fail to abide by the
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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. Owners agree 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 Owners or their
respective 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 the Owners to comply with any conditions of this Agreement, performs said
conditions pursuant to its authority in this Agreement, City shall indemnify and hold
harmless Owners, their respective agents, employees and representatives for City's own
negligent acts in the performance of Owners' required work under this Agreement.
6. Costs of Enforcement. In the event Owners 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:
Owners
The Lodge of New Hope LLC
Dave Pokorney, Treasurer
1110 Yellow Brick Road
Chaska,MN 55318
The Evangelical Lutheran Good Samaritan Society
4800 West 57th Street
Sioux Falls, SD 57108
City
Kirk McDonald, City Manager
City of New Hope
4401 Xylon Avenue North
New Hope,MN 55428
kmcdonald@ci.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.
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8. Successors. All duties and obligations of Owners under this Agreement shall
also be duties and obligations of Owners' respective 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 Recorder's Office.
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.
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SIGNATURE AND NOTARY PAGES FOR AGREEMENT AND
EASEMENT TO MAINTAIN UNDERGROUND
STORMWATER TREATMENT SYSTEM
City of New Ho��e
By:
6-1QQ P14
Kathi en
Its:--Isay r
By: ��1 \l�r 4C3
Kirk McDonald
Its: City Manager
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this /6 day of
cia , 2018, by Kathi Hemken, and Kirk McDonald, the Mayor and City Manager,
respe ively, of the City of New Hope, a Minnesota municipal corporation, on behalf of said
municipal corporation.
..".j.,te:e,- 04:_rt_e__
Notary Public
e,;,,i ; VALERIE J LEONE
k- 11'� Notary Public-Minnesota
f 4i..' My Commission Expires Jen 31,2020
�uw
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Owner
The Lodge ew 11/$, C
By: /i� _�.1LIJI
ave Pokorn•
Its: Treasurer
STATE OF MINNESOTA ) s Rg BARBARAJ. EGLI
SS. NOTARY PUBLIC•MINNESOTA
COUNTY OF HENNEPIN ) .__ ." My Comm.Exp.Jen.31,2021
The foregoing instrument was acknowledged before me this 9 day of , 2018, by
David Pokorney, the Treasurer of The Lodge of New Hope LLC, a Minn a limited liability
company, on behalf of said limited liability company.
L-.6aAitA-k EEE.
Notary Public
7
Owner
The Evangelical Lutheran Good Samaritan Society
By:
SA4
Its: eiC e,t,c c , l/ r
Q
STATE OFSO\ N\-\ 0- )
ss.
COUNTY OF IMQNO )
The foregoing instrument was acknowledged before me this (u day of `--: uS^ , 2018, by
"N`cems AS y V QI c the EX e -U w of The Evangelical Lutheran Good Samaritan
Society, a North Dakota non-profit corporation, on behalf of said non-profit corporation.
JaiHULS
14;,, 140- Y IC 'Y:
)0Alau&A,
Nary Public /4-1-023
DRAFTED BY:
JENSEN SONDRALL PERSELLIN&WOODS,P.A.
8525 Edinbrook Crossing,#201
Brooklyn Park,MN 55443
(763) 424-8811
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Exhibit A
Underground Stormwater Treatment System
See attached.
P:\Attomey\SAS\1 Client Files\2 City of New Hope\99-21712 Good Samaritan PUD Subdivision\Agreement and Easement to Maintain
Underground Stormwater System-v3.docx
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