39 - PC 15-09 7820 42nd Ave N stormwater catch basin areas and easement AGREEMENT TO MAINTAIN STORMWATER CATCH BASIN AREAS AND GRANT
OF EASEMENT TO CITY OF NEW HOPE
THIS AGREEMENT AND EASEMENT ("Agreement") is made and entered into as
of the (5-411 day of he ajnAw , 2016, by and between BTW LLC, a Minnesota limited
liability company("Owner"), and the City of New Hope, a Minnesota municipal corporation
("City").
WITNESSETH:
WHEREAS, Owner owns certain real property located in the City of New Hope, County
of Hennepin, State of Minnesota, commonly known as 7820 42"d Avenue North, New Hope, MN,
PID No. 17-118-21-22-0015, which is registered as Torrens property and legally described as
follows:
The West 125 feet of that part of Tract A lying South of a line drawn at right angles
to the West line of said Tract A from a point thereon 200 feet North from the
Southwest corner of said Tract A of Registered Land Survey No. 1282, Hennepin
County, Minnesota
("Property").
WHEREAS,Tenant Kod Kod Enterprises L.L.C. ("Tenant") leases the Property where it
operates a Dunkin' Donuts franchise.
WHEREAS, Owner is constructing a stormwater catch basin with sump identified as
"CB 1"on the attached Exhibit A("Storm Basin")on the Property.
WHEREAS, the purpose of this Agreement is to ensure Owner's performance of regular
maintenance of the Storm Basin.
WHEREAS,as part of this Agreement,Owner shall convey to the City an easement over a
the Property for access to maintain the Storm Basin on the Property as graphically depicted on the
attached Exhibit A("Storm Basin Area"), in the event Owner fails to perform the maintenance
obligations set forth herein.
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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 Storm Basin. Owner and its successor or
assigns as fee owner of the Property shall be responsible for constructing,
maintaining, operating, and repairing all portions of the Storm Basin as graphically
depicted on the attached Exhibit A as outlined below:
a. Remove litter, debris, and accumulated sediment from the Storm Basin,
including inlet, outlet, and/or pretreatment structures.
b. Storm Basin 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 Basin in a way which does
not compromise the effectiveness of the design.
d. Further, Owner and its successors or assigns, shall meet all of the
requirements of the City's MS4 permit relating to the Storm Basin 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 Storm Basin.
2. Schedule of Maintenance: Owner, at Owner's sole cost and expense, shall inspect
and maintain the Storm Basin, 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 submit such records to the City within
two (2) weeks of each such inspection. 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. Owner acknowledges and agrees the City may
maintain the Storm Basin, as provided in this paragraph, if the City reasonably
believes that Owner or its successors or assigns have failed to maintain the Storm
Basin in accordance with this Agreement or applicable Drainage Laws and/or 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 Property to perform such maintenance tasks or may remove the
Storm Basin in its entirety. In such case, the City shall send an invoice of its
reasonable maintenance or removal 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
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City for any expense so incurred by the City in the same manner as if written notice
as described above had been given. Periodic City inspections may be conducted by a
City representative at no cost to Owner. 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 result 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.
a. 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 Storm Basin
Area graphically depicted on the attached Exhibit A to maintain the Storm
Basin constructed thereon, in the event Owner fails to do so ("Easement").
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 Storm Basin, in
the event Owner fails to abide by the maintenance terms set forth herein.
b. As a precondition of the City's right to enter the Property to perform work
pursuant to the City's authority under this Agreement, the City shall maintain
a policy of comprehensive general liability insurance,with commercially
reasonable minimums for liability and property damage, which insurance
provides coverage for any liability incurred by the City or its employees,
agents, contractors, representatives, guests, or invitees while upon the
Property.
5. Hold Harmless and Indemnification. Owner agrees to indemnify and hold
harmless the City and their 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's or Owner'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 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 employees, agents and representative for its own negligent
acts in the performance of the Owner's required work under this Agreement.
6. Costs of Enforcement. Owner 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.
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7. Tenant's Acknowledgment. Tenant acknowledges the terms and conditions
contained herein.
8. 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 Owner: BTW LLC
520 West Minnehaha Parkway
Minneapolis, MN 55419
To 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.
9. Successors. All duties and obligations of Owner under this Agreement shall also be
duties and obligations of Owner's successors and assigns.
10. Effective Date. This Agreement shall be binding and effective as of the date hereof.
11. 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 Registrar of
Titles in and for Hennepin County.
12. 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.
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IN WITNESS WHEREOF,we have hereunto set our hands and seals.
Owner
BTW,LLC,
a Min = a li ite li bil' c pang
By: l
..„
Its: �--CS( •i-
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this l3 day of
CCV:10,_(- , 2016, by, ) _, j , the ` _, of BTW, LLC, a
Minnesota limited liability company, on behalf of said li ' liabili ompapy.
Notary Public
t a -, ASMIR DRAGONJIC
+ ,. NOTARY PUBLIC-MINNESOTA
, ., `MY COMMISSION EXPIRES 01131118
5
Tenant
Kod Kod Enterprises L.L.C.,
a Minnesota limited liability company
By:
Its: D
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this c?.3 day of
� -- , 2016, by 34.011,\12.5;164-S , the of Kod Kod Enterprises
L.L.C., a Minnesota limited liability company, on be alf of said limited liability company.
Notary Public
.sne.
a DAVIDENWotary PAIKER-CublicRAW FORD
•;�„
I . �► State of Minnesota
My Commission Expires
January 31,2021
6
City of New Hope,
a Minnesota municipal corporation
By: a tit/( IA-2
Kathi ken
Its: Mayor
,--)t;...s.......?c.- .1.\r 0\2.__ *By:
Kirk McDonald
Its: City Manager
STATE OF MINNESOTA )
)ss.
COUNTY OF HENNEPIN )
The fore oing instrument was acknowledged before me this S 147 day of
, 2016, by Kathi Hemken and Kirk McDonald, the Mayor and City
Manager of the City of New Hope, a Minnesota municipal corporation, respectively, on behalf of
said municipal corporation.
ka,t,:t. oem,Le_
Notary Public
Drafted by: S--
am,
ti l VALERIE LEONE
,
t tNOTARYPUBLIC-MINNESOTA
Jensen Sondrall Persellin & Woods, P.A. ,St.w MyCommission Expires Jen.31,2.1"9
8525 Edinbrook Crossing, Suite 201
Brooklyn Park, MN 55443
(763)424-8811
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EXIHIMT A
GRAPHIC DEPICTION OF STORMWATER CATCH BASIN
See attached.
P:1Attorney\SAS11 Client Files12 City of New Hope199-21509-7820 42nd Ave.N.-Java Capital Partners L.L.C1Stormwater Maintenance and
Easement Agreement-v2.docxx
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