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14 /,' 7679853 P (', o/-o AGREEMENT TO MAINTAIN EASEMENT THIS AGREEMENT is made and entered into as of the 19th day of October 2001 by and between AutoZone, Inc., d/b/a/ AutoZone Nevada, Inc., a Nevada corporation ("Developer") and the City of New Hope, a Minnesota municipal corporation ("City"). WITNESSETH: WHEREAS, the Developer owns certain real property located in the City of New Hope, County of Hennepin, State of Minnesota, legally described as: The South 233 feet of the East 233 feet of the Southeast Quarter of Section 18, Township 118, Range 21, as measured on the South and East lines thereof, according to the U.S. Government Survey thereof, Hennepin County, Minnesota. WHEREAS, the Developer has or will grant to the City certain drainage easements over a portion of the Property legally described as: The North 120 feet of the West 38 feet of the South 233 feet of the East 233 feet of the Southeast Quarter of Section 18, Township 118, Range 21, as measured on the South and East lines thereof, according to the U.S. Government Survey thereof, Hennepin County, Minnesota. (the "Easements"), said Easements being set forth more fully in the certain easement document filed February 21,20O files of the Hennepin County Recorder, and WHEREAS, the Property is suitable with the Bassett Creek Watershed, and permanent provisions for handling of storm runoff, including provisions for operation and maintenance of all stormwater runoff facilities and ponds, are required, and such provisions are to be set forth in an agreement to be recorded in the real estate records; and WHEREAS, the City has given approval to the easement subject to compliance by the Developer with certain conditions, including entering into an easement maintenance 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. Maintenance of the Pond. The Developer and its successor or assigns as fee owner of the Property shall be responsible for maintaining the Easements and observing all Drainage Laws governing the operation and maintenance of the Easements. The Developer shall provide the City with a schedule acceptable to the City for inspection of the Easements and outlet control structure. The Developer shall make all such scheduled inspections, keep record of all inspections and maintenance activities, and submit such records annually to the City. The cost of all inspections and maintenance, including skimming and cleaning of the Easements, shall be the obligation of the Developer and its successors or assigns as the fee owner of the Property. 2. City's Maintenance Rights. The City may maintain the Easements, as provided in this paragraph, if the City reasonably believes that the Developer or its successors or assigns have failed to maintain the Easements in accordance with applicable Drainage Laws, and such failure shall continue for thirty (30) days after the City shall give the Developer written notice of such failure. The City's notice shall specifically state which maintenance tasks are to be performed. If Developer 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 the Developer 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 to an emergency, as determined by the City Engineer, the thirty (30)-day notice requirement to the Developer for failure to perform maintenance tasks shall be and hereby is waived in its entirety by the Developer, and the Developer 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. 3. Hold Harmless. The Developer 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 attorneys' fees) arising out of or resulting from the Developer's or the Developer's agents or employee'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 or employees or failure by the City, its agents or employees to take any other prudent precautions. In the event the City, upon the failure of the Developer to comply with any conditions of this Agreement, performs said conditions pursuant to its authority in this Agreement, the Developer shall indemnify and hold harmless the City, its employees, agents and representatives for its own negligent acts in the performance of the Developer's required work under this Agreement, but this indemnification shall not extend to intentional or grossly negligent acts. 4. Costs of Enforcement. The Developer agrees to reimburse the City for all costs incurred by the City in the enforcement of this Agreement, or any portion thereof, including court costs and reasonable attorneys' fees. 2 5. Notice. All notices required under this Agreement shall either be personally delivered or be sent by certified or registered mail and addressed as follows: To the Developer: AutoZone, Inc. P.O. Box 2198 Dept. 8700 Memphis, TN 38101-2198 Attn: Director of Property Management To the City: City Manager City of New Hope 4401 Xylon Avenue North New Hope, MN 55428 All notices given hereunder shall be deemed given when personally delivered or two (2) business days after being placed in the mail properly addressed as provided herein. 6. Successors. All duties and obligations of Developer under this Agreement shall also be duties and obligations of Developer's successors and assigns. 7. Effective Date. This Agreement shall be binding and effective as of the date hereof. AUTOZONE, INC., d/b/a/ AUTOZONE NEVADA, INC., a Nevada corpora' n A16,0 By: Its: Vice Presid- By: J Its. Vire President CITY OF NEW HOPE, a Minnesota municipal corporation By: 7/-2)1/74.4.?4.4 Its ayor By: X/ / . Its City Manager 3 STATE OF TENNESSEE ) ) ss. COUNTY OF SHELBY ) The fore oing instrument was acknowledged befo a me this /9 'day of 6th).-4.4,0 , 2001, by �� `/ � �;a ,%„�,,,and pbiL.41,. i , the Vice President and Vice President of AutoZone, Inc., d/b/a/ A Zone Nevada, Inc., a Nevada corporation, on behalf of said corporation. 09La„4.„4g24.164.? — ;\ Notary Public ®. L (Notary ice al) QI :: ATRY ?� g` PUBLIC 1 c PUBLIC t AT LARGE ` AT LARGE F , f •+ ktBY STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this /J day ofX�Cp2u2 j_ 20%, by U j, J% j- en C4' and �� `T�� h lin the Mayor and City Manager of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. Lint Notary Public (Notary Public Seal) Y l/ 1l/IJlflll//l✓/!l/l/I•( TRANSFER ENTERED :4ENNEPIN COUNTY TAXPAYER SEPVICSS VALERIE J.LEONE a •. ;_ NOTARY PUBLIC-MINNESOTA 4 My Commission Expires Jan.31,2005 MAR 2 0 2002 SPIN CO Y MINN. Agreement to Maintain Easement.doc 7,010 i L.re Al DEPUTY This instrument was drafted by: Jensen & Sondrall, P.A. 8525 Edinbrook Crossing Brooklyn Park, MN 55443 4