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DRAFT - Glendale Stormwater Maintenance Agreement1 STORMWATER MAINTENANCE AGREEMENT THIS AGREEMENT (the “Agreement”) is made and entered into as of the ____ day of _________, 2017, by and between the City of Chanhassen, a Minnesota municipal corporation (the “City”) and Lake West Development, LLC, a Minnesota limited partnership (collectively, the “Developer”). WITNESSETH: WHEREAS, the Developer is the fee owner of certain real property located in Carver County, Minnesota, legally described on Exhibit A attached hereto (the “Property”); and WHEREAS, the Developer has dedicated to the City drainage and utility easements over portions of the Property (the “Easement Areas”) where a stormwater pond will be constructed; and WHEREAS, by entering into this Agreement, the Developer has agreed to construct and maintain certain stormwater facilities, including the infiltration basins (the “Stormwater Improvements”) for the benefit of the Property. The Stormwater Improvements include infiltration basins and any accompanying structures that are to be constructed by the Developer as set forth in the plans approved by the City and attached as Exhibit B; and WHEREAS, the City requires permanent provisions for handling of storm runoff, including terms and conditions for operation and maintenance of all Stormwater Improvements, and requires such provisions to be set forth in an agreement to be recorded against the Property; and WHEREAS, the City and the Developer intend to comply with certain conditions, including entering into an agreement regarding the Stormwater Improvements. 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: 2 1. Construction of the Stormwater Improvements. The Developer shall construct the Stormwater Improvements on the Property at the Developer’s expense. The Stormwater Improvements must be constructed in accordance with the plans that are attached to this Agreement as Exhibit B. 2. Restriction on Use of Easement Area. The Developer and the subsequent owners of each lot within GLENDALE DRIVE HOMES shall at all times protect the function of the easement area as an infiltration basin. In furtherance of such protection, in no event shall the Developer or the subsequent owner of any lot cause or allow any fill, additional planting, buildings, improvements or foundations to be placed within the easement area, and in no event shall the Developer or the subsequent owner of each lot cause or allow any change in the soil or modification of grade, in each instance without the prior written consent of the City, which may be denied or conditioned in the City’s reasonable discretion. 3. Maintenance of the Stormwater Improvements. The Developer and the subsequent owner of each lot within GLENDALE DRIVE HOMES, agrees to maintain the Stormwater Improvements and observe all drainage laws governing the operation and maintenance of the Stormwater Improvements. The Developer and the subsequent owner of each lot shall make periodic inspection and perform maintenance of the Stormwater Improvements as described in Exhibit C attached hereto. The Developer and the subsequent owner of each lot shall make all such scheduled inspections and maintenance, 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 Stormwater Improvements, shall be the obligation of the Developer and the subsequent owner of each lot within GLENDALE DRIVE HOMES as shown on Exhibit A as the fee owners of the Property. 4. City’s Maintenance Rights. The City may maintain the Stormwater Improvements, as provided in this paragraph, if the City reasonably believes that the Developer or the subsequent owner of the lots within GLENDALE DRIVE HOMES has failed to maintain the Stormwater Improvements in accordance with applicable drainage laws, the terms of this Agreement or other requirements and such failure continues for 30 days after the City gives the Developer or the subsequent owner of the lots written notice of such failure or, if such tasks cannot be completed within 30 days, after such time period as may be reasonably required to complete the required tasks provided that Developer or the subsequent owner of the lots is making a good faith effort to complete said task. The City’s notice shall specifically state which maintenance tasks are to be performed. If the Developer or the subsequent owner of the lots does not complete the maintenance tasks within the required time period after such notice is given by the City, the City shall have the right to enter upon the Easement Areas and such portions of the Property as may reasonably be necessary to gain access to the Easement Areas to perform such maintenance tasks. In such case, the City shall send an invoice of its reasonable maintenance costs to the Developer or the subsequent owner of the lots upon which the Stormwater Improvement is located, which shall include all reasonable staff time, engineering and legal and other reasonable costs and expenses incurred by the City. If the Developer or the subsequent owner of the lots fails to reimburse the City for its costs and expenses in maintaining the Stormwater Improvements within 30 days of receipt of an invoice for such costs, the City shall have the right to assess the full cost 3 thereof against the lots. The Developer, on behalf of itself and the subsequent owners of the lots, acknowledges that the maintenance work performed by the City regarding the Stormwater Improvements benefits the Property in an amount which exceeds the assessment and hereby waives any right to hearing or notice and the right to appeal the assessments otherwise provided by Minnesota Statutes, Chapter 429. Notwithstanding the foregoing, in the event of an emergency, as determined by the City Engineer, the 30-day notice requirement to the Developer or the subsequent owner of the lots for failure to perform maintenance tasks shall be and hereby is waived in its entirety by the Developer and the subsequent owner of the lots, and the Developer or the subsequent owner of the lots shall reimburse the City and be subject to assessment for any expense so incurred by the City in the same manner as if written notice as described above has been given. 5. Hold Harmless. The Developer for itself and the subsequent owner of each lot hereby agrees to indemnify and hold harmless the City and its officials, agents, contractors 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’, contractors or employees’ 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, contractors or employees or failure by the City, its agents, contractors or employees to take any other prudent precautions, except to the extent of intentional or grossly negligent acts of the City, its employees, agents, contractors and representatives. In the event the City, upon the failure of the Developer or the subsequent owner of the lots to comply with any conditions of this Agreement, performs said conditions pursuant to its authority in this Agreement, the Developer or the subsequent owner of the lots shall indemnify and hold harmless the City, its officials, employees, contractors, agents and representatives for its own negligent acts in the performance of the Developer’s or the subsequent owner of the lot’s required work under this Agreement, but this indemnification shall not extend to intentional or grossly negligent acts of the City, its officials, employees, contractors, agents and representatives. 6. Costs of Enforcement. The Developer for itself and the subsequent owner of each lot agrees to reimburse the City for all reasonable costs prudently incurred by the City in the enforcement of this Agreement, or any portion thereof, including court costs and reasonable attorneys’ fees after providing written notice to Developer or the subsequent owner of the lot and a reasonable opportunity to cure. 7. Rights Not Exclusive. No right of the City under this Agreement shall be deemed to be exclusive and the City shall retain all rights and powers it may have under Minnesota Statutes Sections 444.16 to 444.21 to acquire, construct, reconstruct, extend, maintain and otherwise improve the Stormwater Improvements. 8. Notice. All notices required under this Agreement shall either be personally delivered or be sent by United States certified or registered mail, postage prepaid, and addressed as follows: 4 a) as to Developer: Lake West Devlopment, LLC 14525 Highway 7, Suite 265 Minnetonka, MN 55345 with a copy to: Attorney Name Attorney Name Attorney Address Attorney Address b) as to City: City of Chanhassen ___________________ ___________________ Attn: City Manager with a copy to: City Attorney Name City Attorney Name City Attorney Address City Attorney Address or at such other address as either party may from time to time notify the other in writing in accordance with this paragraph. 9. Successors and Assigns. All duties and obligations of Developer under this Agreement shall also be duties and obligations of subsequent owners of each lot within GLENDALE DRIVE HOMES. The terms and conditions of this Agreement shall run with the Property. 10. Effective Date. This Agreement shall be binding and effective as of the date first written above. 5 LAKE WEST DEVELOPMENT, LLC By: Curt J. Fretham Its: Chief Manager STATE OF MINNESOTA ) ) ss. COUNTY OF ___________ ) This instrument was acknowledged before me on ________________ 2017, by Curt J. Fretham, Chief Manager, Lake West Development, LLC, a Minnesota limited liability company, on behalf of the company. ____________________________________ Notary Public CITY OF CHANHASSEN By: ____________, Mayor By: ____________, City Clerk STATE OF MINNESOTA ) ) ss. COUNTY OF HENNEPIN ) The foregoing instrument was acknowledged before me this ___ day of _________, 2017, by ___________ and ________________, the Mayor and the City Clerk, respectively, of the City of Chanhassen, a Minnesota municipal corporation, on behalf of the municipal corporation. Notary Public 6 This instrument drafted by: Attorney Name Attorney Nane Attorney Address Attorney Address Attorney Phone Number A-1 EXHIBIT A TO STORMWATER MAINTENANCE AGREEMENT Legal Description of the Property The property to which this Stormwater Maintenance Agreement applies is legally described as follows: Lots 1, 2, 3, 4, and 5, all in GLENDALE DRIVE HOMES, Hennepin County, Minnesota. B-1 EXHIBIT B TO STORMWATER MAINTENANCE AGREEMENT Stormwater Improvements to be Constructed (Will Modify with final approved plan) C-1 EXHIBIT C TO STORMWATER MAINTENANCE AGREEMENT Inspection and Maintenance Schedule Stormwater Basins: Inspection and maintenance shall be made consistent with the most recent version of the Minnesota Stormwater Manual or other subsequent manual as dictated by the City. At the time of execution of this Agreement, the schedule can be found in the Operation and maintenance of Infiltration basing section of the Minnesota Stormwater Manual as follows: