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12. a. DOCS-#219775-v2-SEWER_CONNECTION_MAINTENANCE_AGREEMENT_MOMENTSSEWER CONNECTION, OPERATION AND MAINTENANCE AGREEMENT THIS SEWER CONNECTION, OPERATION AND MAINTENANCE AGREEMENT (this “Agreement”) is made and entered into as of the ______ day of _____________, 2021, by and between TMSC OF CHANHASSEN, LLC, a Minnesota limited liability company (“Owner”) and the CITY OF CHANHASSEN, a Minnesota municipal corporation (the “City”). RECITALS A. Owner is the fee owner of certain real property located in Carver County, Minnesota, legally described on Exhibit A attached hereto (the "Owner Property"); and B. Owner plans to construct a 48-unit senior apartment building with parking, grading, utility, stormwater, and landscaping improvements on the Owner Property (the “Development”); and C. No city sanitary main currently exists to serve the Development and requires a 6” sanitary sewer service (“private lateral) to be directionally bored to connect to the Metropolitan Council’s interceptor sewer manhole in the MNDOT right of way with inside drop down to the existing invert (the “Project”); and D. The Metropolitan Council Environmental Services (“MCES”) requires a permit be issued to the City for the Project subject to terms and conditions provided in the MCES Permit and Agreement attached hereto as Exhibit B (“Permit”); and E. The City and the public receive no benefit from the direct connection of the private lateral service to the MCES interceptor sewer, which only benefits the Owner Property and Development; and F. As a condition of Site Plan approval for the Development and execution of the Permit, the City requires that Owner enter into this Agreement for the construction, operation and maintenance of the Project; and G. The parties desire to have Owner perform all of the City’s operation, maintenance and payment obligations set forth in the MCES Permit in accordance with the terms of this Agreement. 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: Performance of Maintenance Obligations. A. Owner hereby agrees to perform all of the City’s obligations required for the issuance of the Permit, including all maintenance and repairs required under the terms of the Permit and shall comply with all reasonable requests by the City with respect to its compliance with the Permit, it being understood that the City is responsible to the MCES for ensuring compliance with such requirements. Owner shall construct the Project in accordance with the plans approved by MCES for issuance of the Permit and MCES standards. Owner also will promptly notify the City of any changes in the scope or character of the Project of any necessary maintenance and repairs to the Project required under the Permit. B. In the event Owner fails to maintain the connection in compliance with the Permit or fails to repair or maintain the connection or the MCES interceptor as required under the Permit and such failure continues for 30 days after the City gives Owner written notice of such failure, the City may take whatever steps necessary to correct and comply with the terms of the Permit. The City may charge the costs, to the Owner. It is expressly understood and agreed that the City is under no obligation to maintain or repair the connection, and in no event shall this Agreement be construed to impose any such obligation on the City. In addition, Owner agrees that it is, and will be, solely responsible to address complaints and legal claims brought by any third party with regard to the maintenance and operation and the consequences there from the Project. C. The requirements of the Permit are incorporated herein and Owner shall comply with all terms and requirements of the Permit which are required of the City. Performance of Payment Obligations. Provided the City promptly delivers to Owner a copy of any notice delivered by MCES to the City, Owner shall pay directly to MCES all amounts due to MCES under the terms of the Permit in connection with the associated work performed by Owner. Indemnification. Owner does hereby agree to defend, indemnify, and hold harmless the City, its elected officials, officers, agents, and employees and MCES, its elected officials, officers, agents and employees from and against all liability, costs, expenses, claims, suits, or judgments arising from or growing out of any injuries, loss or damage sustained by any person or entity, which are caused by or sustained in connection with the tasks carried out by Owner, its officers, agents, employees and assigns under this Agreement or Owner’s failure to perform the obligations under this Agreement. City's Costs of Enforcement of Agreement. In the event of a breach by Owner of any term of this Agreement, then upon demand by City, Owner shall pay or reimburse the City for all expenses, including all attorneys’ fees and expenses incurred by the City in connection with the enforcement of this Agreement, or in connection with the protection or enforcement of the interests of the City in any litigation or in any action or proceeding relating in any way to the transactions contemplated by this Agreement. Compliance with Law. Owner agrees to comply with all applicable federal, state, county, and local laws and regulations governing the Project and obligations provided under this Agreement. Notices. All notices or copies of notices required or permitted to be delivered under this Agreement shall either be personally delivered or be sent by certified or registered mail and addressed as follows: To Owner: TMSC of Chanhassen, LLC Attention: _______ _________________________ _________________________ To the City: City of Chanhassen Attention: City Manager 7700 Market Boulevard Chanhassen, Minnesota 55317 All notices given hereunder shall be deemed given when personally delivered or two business days after being placed in the mail properly addressed as provided herein. 7. Record-Keeping. Owner shall maintain records related to the activities performed under the terms of this Agreement and the Permit. Such records shall be kept and maintained by Owner for a period of six (6) years following the issuance of the Permit and any repair or maintenance work required under this Agreement. All records shall be made available upon request of the City for inspection/s and audit/s by the City, MCES or their representatives. 8. Government Data Practices. Owner must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided to the City under this Agreement and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by Owner under this Agreement, The civil remedies of Minnesota Statutes § 13.08 apply to the release of the data referred to in this clause. If Owner receives a request to release the data referred to in this clause, Owner must immediately notify the City. The City will give Owner instructions concerning the release of the data to the requesting party before the data is released. Owner’s response to the request shall comply with applicable law. 9. Governing Law and Venue. This Agreement will be governed by, and construed in accordance with, the laws of the State of Minnesota. The appropriate venue and jurisdiction for any litigation hereunder shall be in a court located in Carver County, Minnesota. 10. Severability. The provisions of this Agreement are severable. If any portion hereof is, for any reason, held by a court of competent jurisdiction to be contrary to law, such decision shall not affect the remaining provisions of this Agreement. 11. Entire Agreement. The entire agreement of the parties is contained herein. This Agreement supersedes all oral agreements and negotiations between the parties relating to the subject matter hereof as well as any previous agreements presently in effect between the parties relating to the subject matter hereof. Any alterations, amendments, deletions, or waivers of the provisions of this Agreement shall be valid only when expressed in writing and duly signed by the parties, unless otherwise provided herein. 12. Waiver. The performance or observance of any promise or condition set forth in this Agreement may be waived, amended, or modified only by a writing signed by Owner and the City. No delay in the exercise of any power, right, or remedy operates as a waiver thereof, nor shall any single or partial exercise of any other power, right, or remedy. 13. Recording. This Agreement shall run with the land, shall be recorded against the title to the Property and shall be binding on TMSC, its officers, assigns, and any other successors in interests to the Property. 14. Counterparts. This Agreement may be executed in multiple counterparts, and all such executed counterparts shall constitute the same Agreement. [Signature Pages Follow] TMSC: TMSC OF CHANHASSEN, LLC, a Minnesota limited liability company By: __________________ Its: President CITY: CITY OF CHANHASSEN By: ____________________________________ Elise Ryan, Mayor By: ____________________________________ Laurie Hokkanen, City Administrator EXHIBIT A TO SEWER CONNECTION OPERATION AND MAINTENANCE AGREEMENT Legal Description of the TMSC Property EXHIBIT B TO SEWER CONNECTION OPERATION AND MAINTENANCE AGREEMENT MCES PERMIT AND AGREEMENT