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HomeMy WebLinkAboutMonitoring and Maintenance Agreement Rainbow Childcare MONITORING AND MAINTENANCE AGREEMENT FOR WATER SUPPLY City of Prior Lake,Minnesota THIS AGREEMENT ("AGREEMENT")is made and entered into this 1¢ day of �L Yh-i')P,/ ,AOV�_, by and between the City of Prior Lake, a Minnesota municipal corporation,organized under the laws of the State of Minnesota("CITY")and EIG 14T RCCC 236 MN—Prior Lake LLC,3221 Big Beaver Rd.,Suite 111,Troy Michigan,48084("OWNER"). RECITALS WHEREAS,OWNER is the fee owner of certain property within the City of Prior Lake legally described on attached Exhibit A("PROPERTY").Exhibit A is incorporated herein as if fully set forth;and WHEREAS, OWNER has proposed construction of Rainbow Child Care Facility ("DEVELOPMENT")on the PROPERTY;and WHEREAS,in conjunction with the DEVELOPMENT,the CITY requires certain water supply system standards be met;and WHEREAS,OWNER has submitted a plan for construction and maintenance of water supply systems for the DEVELOPMENT designed to meet CITY standards. NOW THEREFORE, based on the mutual promises and covenants set forth herein, the sufficiency of which are hereby acknowledged,the parties hereto agree as follows: 1. Purpose.The purpose of this AGREEMENT is to set forth the terms and conditions for the construction, monitoring, and maintenance of the water supply system facilities for the DEVELOPMENT("WATER SUPPLY FACILITIES"). 2. Recitals.The recitals set forth above are incorporated as if fully set forth herein. 3. Design and Installation of WATER SUPPLY FACILITIES. 3.1 The OWNER is solely responsible for design and installation of the WATER SUPPLY FACILITIES. 3.2 The WATER SUPPLY FACILITIES shall be constructed in accordance with the utility plan("UTILITY PLAN")attached as Exhibit B.Exhibit B is incorporated herein as if fully set forth. 3.3 The UTILITY PLAN for the WATER SUPPLY FACILITIES shall not be changed without prior written approval of the CITY. 4. Monitorine and Maintenance of WATER SUPPLY FACILITIES. 4.1 The OWNER is solely responsible for the monitoring and maintenance of the WATER SUPPLY FACILITIES to ensure that the WATER SUPPLY FACILITIES provide adequate water capacity for the DEVELOPMENT currently and in the future. 4.2 Monitoring and maintenance activities shall comply with the monitoring and maintenance plan("MONITORING AND MAINTENANCE PLAN")attached as Exhibit D. Exhibit D is incorporated herein as if fully set forth. The MONITORING AND MAINTENANCE PLAN includes but is not limited to methods for cleaning,repairing, and other work deemed necessary to ensure the proper function of the WATER SUPPLY FACILITIES. 4.3 The OWNER shall implement the MONITORING AND MAINTENANCE PLAN to ensure that the WATER SUPPLY FACILITIES continue to provide adequate water capacity for the DEVELOPMENT currently and in the future. 4.4 The OWNER must annually conduct at least one inspection of the WATER SUPPLY FACILITIES and submit an annual inspection report to the CITY on or before June 30th of each year.The annual inspection report must include enough information to determine if the WATER SUPPLY FACILITIES are providing adequate capacity for the DEVELOPMENT. 4.5 The MONITORING AND MAINTENANCE PLAN shall not be changed without prior written approval of the CITY. 5. Default. A failure to comply with the UTILITY PLAN or MONITORING AND MAINTENANCE PLAN or with any of the terms and conditions of this AGREEMENT shall constitute a default of this AGREEMENT by OWNER.In the event of a default,the CITY shall provide the OWNER with notice as provided for in Paragraph 6.The notice shall set forth the nature of the default and the time within which the OWNER must cure the default,which shall be not less than 2 weeks.Should OWNER fail to cure the default within the time set forth in the notice, CITY shall have the right,but not the obligation to, enter upon the property legally described in Exhibit C("EASEMENT") and perform the required work to cure the default,except that in the event the nature of the default is such that,in the sole judgment of the CITY,it may pose an imminent potential risk to the health,safety or welfare to persons or property,the CITY may immediately and with no notice to OWNER enter the EASEMENT and perform the required work to cure the default.All costs incurred by the CITY to cure the default,including administrative costs and attorney fees,shall be the sole responsibility of the OWNER. 5.1 The CITY shall invoice the OWNER for the costs incurred to enforce this AGREEMENT and/or cure the default. 5.2 The OWNER shall pay said invoice within 30 days of receipt. 5.3 The OWNER agrees that if OWNER fails to pay the invoiced amount within 30 days of receipt thereof, the CITY may assess the invoiced amount against the PROPERTY. OWNER waives notice and procedural requirements of any kind,including notice of any hearing or proceeding at which the assessment is to be considered. OWNER waives any objection to irregularity of the procedure of the assessment and any and all appeal rights to the assessment. Said waiver is a waiver of any and all rights of appeal of any nature and a specific waiver of appeal rights under Minn.Stat.429.081,any other statute,common law, Constitutional provision,or any other applicable law. 6. Notices.Required notices to the OWNER shall be in writing,and shall be either hand delivered to the OWNER,its employees or agents,or mailed to the OWNER by certified mail at the following address: 3221 Big Beaver Rd.,Suite 111,Troy,Michigan 48084. Notices to the CITY shall be in writing and shall be either hand delivered to the City Manager,or mailed to the CITY by certified mail in care of the City Manager at the following address:City of Prior Lake,4646 Dakota Street SE,Prior Lake,Minnesota 55372. 7. Richt to Access.The OWNER grants the CITY the right to enter upon the EASEMENT for the purpose of inspection of the WATER SUPPLY FACILITIES,curing any default,or to prevent any imminent potential threat to the health,safety or welfare of persons or property. 8. Indemnification and Hold Harmless. The OWNER shall indemnify,defend and hold the CITY, its Council,agents, employees, attorneys and representatives harmless against and in respect of any and all claims,demands,actions,suits,proceedings,liens,losses,costs,expenses, obligations,liabilities,damages,recoveries,and deficiencies,including interest,penalties,and attorneys'fees,that the CITY incurs or suffers,which arise out of,result from or relate to any acts or omissions involved in the carrying out of the obligations or rights under this AGREEMENT. The responsibility to indemnify and hold the CITY harmless from claims arising out of or resulting from the actions or inactions of the CITY, its Council, agents, employees, and representatives does not extend to any willful or intentional misconduct on the part of any of these individuals. 9. Recording. The OWNER shall cause this AGREEMENT to be recorded against the PROPERTY within 10 days of its execution. The OWNER shall provide evidence of recording to the CITY within 10 days thereafter. 10.Heirs,Successors,and Assigns.This AGREEMENT shall run with the PROPERTY and shall be binding against all heirs,successors and assignees of the OWNER and the CITY. 11.Severability.In the event any provisions of this AGREEMENT shall be held invalid,illegal, or unenforceable by any court of competent jurisdiction,such holding shall not invalidate or render unenforceable any other provision hereof,and the remaining provisions shall not in any way be affected or impaired thereby. 12.Waiver. Failure of either party at any time to require performance of any provision of this AGREEMENT shall not affect its right to require full performance thereof at any time thereafter and the waiver by either party of a breach of any such provision shall not be taken or held to be a waiver of any subsequent breach thereof or as nullifying the effectiveness of such provision. 13.Reimbursement of Fees and Costs.Any fees or costs incurred by the CITY associated with enforcing any of the terms and conditions set forth in this AGREEMENT,including but not limited to CITY staff,engineering and attorney's fees,shall be the sole responsibility of the OWNER.The OWNER agrees that if OWNER fails to pay any invoiced amount within 30 days of receipt thereof,the CITY may assess the invoiced amount against the PROPERTY as set forth in Paragraph 5.3. 14.Remedies. In addition to any other remedies available to the CITY at law or in equity, including the remedies contained in Paragraph 5 herein,CITY may sue OWNER for damages and/or may maintain a suit for specific performance of this AGREEMENT. All rights and remedies provided to the CITY herein are cumulative and the exercise of one shall not operate to bar the exercise of any other rights under this AGREEMENT or provided by law. 15.Governine Law.This AGREEMENT shall be governed by the laws of the State of Minnesota. Executed by the parties hereto as of the day and date first above written CITY OF PRIO LAKE By: By: t ay Frank Bo s,City a ger /STATE OF MINNESOTA ) ss. COUNTY OF SCOTT ) The foregoing instrument was acknowledged before me this 2-1 day of by Kirt Briggs,Mayor,and Frank Boyles,City Manager,of the City of Prior Lake on behalf of the City and pursuant to the authority granted by its City Council. 6t� NOTARY PUBLIC Ann Marilyn Schroeder OWNER 111",,,_ ` Notary Public Minnesota `//�2� /J � ;�•;,„, My Camm�ssion Exgres January 31,2021 By: OWNER,TITLE PLL4U_071(_ STATE OF MINNES4TA ) ba-K-Carta.. )ss. COUNTY OF 3£'OT� ) The foregoing instrument was acknowledged before me this day of_Df M�k-M,- by W.4 Teyft yl,the b W 04,-" of EIG 14T RCCC 236 MN-Prior Lake LLC on behalf of the corporation. ERIN BOUROIC Notary Public,state of Michigan NOTARY PUBLIC County of Macomb ,�.4,y Commission Expires td X472 .:11ng In the County of EXHIBIT A WATER MAIN EASEMENT-SKETCH AND DESCRIPTION SKETCH & DESCRIPTION FOR: EIG14T RCCC 236 MN - Prior Lake LLC WATER MAIN EASEMENT An easement for water main purposes over,under,and across that part of Lot 1,Block 1,Outlot A,EAGLE CREEK COMMERCIAL 2ND ADDITION, according to the recorded plat thereof,Scott County,Minnesota,further described as follows: The centerline of a 20 foot wide easement commencing at the Southwesterly properly corner of said Lot 1,Block 1,Outlot A;thence North 27 degrees 35 minutes 57 seconds East,42.44 feet to the Point of Beginning;thence South 62 degrees 23 minutes 20 seconds East,220.35 feet;thence North 57 degrees 06 minutes 20 seconds East,30.73 feet to the Point of Ending. S67'49' 57' E 8'51' o R_ 06" - 02, L 2�0 6 o ( � 5p 98 �,___\ 20?8S , , C\\ 2 / kP N 60.00, Z- PO. <\` 9746, W r-A I r- L_/—\\7 L_L_ u I \L_L_f /N Ar, nr- I A I F N IVI IVIL_I I/— L_ � L rN LOT 1 <` o N 27' 35' 57" E i BLOCK 1 v 0 42.44 M ^� 20' WATER MAIN < a 2 n i i T I n T ^ A EASEMENT L_U N ter' S 2 000. S 62' 23' 20" E a�oo.'�, 220.35' P.O.E. N -_ < as �/11 62 23'03" W O.B. - �'�`= �� �, s L I V 691.28' '�d'O /r- 354.83' v'Oo.Otp4 V Ci 1\I i i r-\ I hereby certify that this survey,plan or report was prepared by I LJ N 57' 06' 20" E me or under my direct supervision and that I am a duly licensed Professional Engineer under the laws of the State of Minnesota. 30.73' Slgned this day of For. Orman Engineering,LLC By. Alexander Orman,Professional Engineer,MN License No.52881 Client: Project No.: EIG14T RCCC 236 MN — 1203 Orman Engineering,LLC Prior Lake LLC 5476 Vivian Lane 3221 Big Beaver Rd. Date: Sheet: Waterford,MI 48327 Suite 111 1 OF 1 P:248.682.6001 Troy, Michigan 48084 Civil Engineers-Land f'lannirq E:alex@ormanengineering.com Drawn By. Checked By. IaidSxveyiq SCALE: 1" = 100' S.D.M. A.O. EXHIBIT B UTILITY PLAN see attached plan I 1!j Es' s PIMP, hle 'ILI p" 41 A'A list v mc c Bill I Bus I(i is;; i7l� El EI (9 E) tj� 2RR gig p p JD o Ail EXHIBIT C MONITORING AND MAINTENANCE PLAN Monitoring Activities-Water Supply Facilities Inspection Activity Recommended Outcomes/Actions Inspection Frequency 1. Visual inspection for Every 6 months Notify maintenance leaks staff/Property Manager of need to repair 2. Inspect structural Every 6 months Notify maintenance components of hydrants staff/Property Manager and valve boxes of any observed structural damage 3. Inspect ground surface Every 6 months Notify maintenance above and adjacent to staff/Property Manager the structures for of the presence of sinkholes or other sinkholes unusual depression areas, Maintenance Activities-Water Supply Facilities Maintenance Frequency Procedure Maintenance by Activity 1. Repair leaks As needed per Isolate source Property owner or inspection of leak and designated repair contractor and notify City water dept. 2. Structural As needed per Repair or Property owner or components inspection replace designated components per contractor and manufacturer's notify City water recommendations dept. 3. Flushing of Annually Remove City Water water piping accumulated Department and hydrant sediment through access, preferably vacuum.