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24 a � AGREEMENT TO MAINTAIN EASEMENT THIS AGREEMENT is made and entered into as of the / f, day of ....J ,4. 2004, by and between New Hope MN CVS, L.L.C., a Minnesota limited liability company ("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: Lot 1, Block 1, CVS Winnetka Addition (the "Property") WHEREAS, the Developer has granted to the City certain drainage easements over a portion of the Property as shown on the plat (the "Easements") WHEREAS, the Property is suitable with the Shingle Creek Watershed, and permanent provisions for handling of storm water 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 between the Developer and the City 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 sQJhedule acceptable to the City for inspection of the Easements and outlet control structure. The Developer shall make all such scheduled inspections, keep records 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 does 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 Easements 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. 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: New Hope MN CVS, L.L.C. CVS Corporation One CVS Drive Woonsocket, RI 02895 Attn: Property Administration Store No. 5992 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. 2 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. 3 _ New Hope MN CVS, L.L.C., a Minnesota limited liability compan By: Its Assis . ir ecretary CITY OF NEW HOPE, a Minnesota municipal corporatipn i. Ey:�� � � f (11-' Its Mayor By: 'Its City Manager STATE OF OHIO ) ) ss. COUNTY OF SUMMIT ) The foregoing instrument was acknowledged before me this) tU day of 4. ",l�,wrio, 2004, by Timothy Kramer, the Assistant Secretary of New Hope MN CVS, L.L.C., a Minnesota Iimited liability company, on behalf of said compan AM Notary bli• (Notary Public Seal) MARCIA JASANY Notary Public State of Ohio My Commission Expires 3/1/2009 g 11, 4 STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this /.;- day of (-f:,z-- , 200`/J, by ./W2-1 (_. ( (-(i ti and /)("t,L<e-/-'- /1-)-;,,% r e t_, the Mayor and City Manager of the City of New Hope, a Minnesota municipal corporation, on behalf of said municipal corporation. 7 /- Notary Public (Notary Public Seal) st', VALERIE J. LEC 'a `�,,�� a NOTARY PUBLIC-M. .21TA ( \ti '�`' My Commission Expires Jar,.31,2CC5 Agreement to Maintain Easement.doc r I. S