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1347 Chatterton Ponds - 6-20-17 Cost Share Agreement CITY OF EAGAN WATER QUALITY COST SHARE PARTNERSHIP PROGRAM COST SHARE, OPERATION AND MAINTENANCE AGREEMENT This Cost Share, Operation and Maintenance Agreement ("Agreement") is made this 620 day of , 2017, by and between Stephen A. Melcher and Mary S. Melcher, husband and wife (the "Owners"), and the City of Eagan, a Minnesota municipal corporation(the"City"), (collectively the"Parties"). WHEREAS, the Owners are the fee title holder of real property located at 1347 Chatterton Road, Eagan, Minnesota, and legally described as follows: Lot 14, Block 1, CHATTERTON PONDS,Dakota County, Minnesota (the"Property"); WHEREAS, the Owners desire to perform a water quality improvement project (the "Project") to install Shoreland and Upland Buffer Protection (the "Improvements"), as depicted on and in accordance with the proposal attached hereto as Exhibits A & B and incorporated herein(the Exhibits will be referred to as the"Plans and Specifications"); WHEREAS, the Owners have submitted an application for assistance with the Project under the City's Water Quality Cost Share Partnership Program(the"Program"); WHEREAS, the City finds that the Project will serve a public purpose by supporting one or more of the following public water resource priorities: a. improving water quality in downstream public waters; b. reducing stormwater runoff into the public storm-sewer system and public waters; c. preserving,protecting and enhancing native plant communities around public waters; and d. educating and engaging the public on the value of improving public water resources, and empowerment and partnership opportunities; WHEREAS, the City finds that the Owners and the proposed Project meet the eligibility requirements for participation in the Program; and 1 WHEREAS, the City agrees to provide the Owners with certain financial and technical assistance for the Project through the Program, subject to the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and obligations of the Parties hereinafter set forth, the Parties agree as follows: 1. Plans and Specifications. a. Owners' Responsibility. The Owners shall be responsible for development of the plans/design, specifications and itemized cost estimate for the Improvements (the "Plans and Specifications"). b. City Review. The Owners shall submit the Plans and Specifications to the City for review and written approval by the City Engineer or his designee prior to installation of the Improvements. Notwithstanding the foregoing, the Owners shall be solely responsible to determine the adequacy of the Plans and Specifications and to comply with all applicable laws and regulations, and the City shall have no liability for the Plans and Specifications or the Improvements. c. Modification of Plans and Specifications. Any modification to the approved Plans and Specifications must be approved in writing by the City Engineer or his designee. 2. Installation. a. Standards. The Improvements shall be installed in accordance with the approved Plans and Specifications. b. Labor and Materials. The Owners shall select, obtain and pay for all labor and materials for the Project, consistent with the Plans and Specifications, subject to partial reimbursement as provided in this Agreement. c. Photographs. The Owners shall take photographs to document the Project. d. Time for Completion. The Project must be completed within one year from the date of execution of this Agreement, unless an extension has been requested and granted by amendment of this Agreement. e. Report. Within 30 days after completion of the Project, the Owners shall submit to the City Engineer or his designee a project completion report in a form required by the City(including supporting photographs). 2 3. Reimbursement. a. Reimbursement Request. After the Improvements are completed and approved by the City Engineer or his designee, the Owners shall submit to the City Engineer or his designee a written request for reimbursement including (i) a detailed itemization of costs, (ii)original receipts or paid invoices and (iii) itemization and documentation of the Owners' Match as defined below (collectively the "Reimbursement Request"). b. Reimbursement Amount. The City shall reimburse the Owners pursuant to the Reimbursement Request for up to $6,600.00 for eligible Project costs, and not to exceed seventy-five percent(75 %) of total Project costs. c. Reimbursement Schedule. The City shall issue reimbursement to the Owners within thirty(30)days of receipt of a completed Reimbursement Request. d. Eligible Costs. All Project costs will be reviewed and verified by the City Engineer or his designee as eligible, practical and reasonable. The City reserves the right to make adjustments to the Project costs submitted for reimbursement based on this review. Subject to the foregoing, the following Project costs are eligible for reimbursement: i. Materials for the Improvements. ii. Contracted labor costs for site preparation, installation and establishment period(2 years maximum period post-installation)of the Improvements. iii. Contracted design / engineering fees, and soil-analysis, but only if approved in writing by the City Engineer or his designee before contracted design/engineering/soil-analysis work begins. e. Ineligible Expenses. i. Notwithstanding any provision of this Agreement to the contrary, purely aesthetic components of the Improvements are not eligible for reimbursement and shall not be considered part of the Project costs. ii. Funding will only cover work performed after this Agreement has been signed, with the exception of pre-project planning / design / engineering costs that may be allowed to be included, determined on a case-by-case basis, if pre-approved in writing by the City Engineer or his designee. f. Owners' Match. i. The Owners shall be responsible for a minimum of twenty-five percent (25 %)of Project costs, which can include in-kind labor value. 3 4. Maintenance. a. Maintenance Obligation. For a period of ten (10) years commencing on the date the Improvements are completed and approved by the City Engineer or his designee, the Owners shall maintain and repair, when necessary, the Improvements in accordance with the Plans and Specifications. b. Maintenance Costs. The Owners shall be solely responsible for all costs associated with long-term maintenance and repairs of the Improvements. 5. Inspections and Reports. a. Annual Inspections. The Improvements shall be inspected annually, between May 15 and October 15, by a Qualified Person selected by the Owners to determine whether or not the Improvements are functioning in accordance with the Plans, Specifications and this Agreement. As used in this Agreement, the term"Qualified Person" shall mean a person approved by the City Engineer based on shoreland and upland buffer best management practice training and experience. City Water Resources staff are considered Qualified Persons, with no fee to Owners. If choosing to use an independent Qualified Person, the Owners' responsibilities under this Section shall be at the Owners' sole cost and expense. If, as a result of the inspection, the Improvements are determined not to be functioning in accordance with the Plans and Specifications and this Agreement, the Owners shall restore/repair the Improvements to function as specified herein. b. City Notification and Independent Inspection. The City shall be notified at least 24 hours prior to independent annual inspections or any significant maintenance of the Improvements and, at the sole cost of the City, a representative of the City may observe any inspection or maintenance. The City shall have right of entry onto the Property to inspect the Improvements at any time to evaluate the installation and maintenance of the Improvements. c. Inspection and Maintenance Report. If using an independent Qualified Person, the Owners shall submit a report to the City Engineer or his designee by e-mail or mail, no later than thirty(30) days after any annual inspection and/or maintenance of the Improvements,providing the following information: i. Date and time of inspection. ii. Log of findings. iii. Date and time of maintenance. iv. Details of maintenance performed. v. Photographic documentation. 6. Standards for Performance. Any act of construction, installation, maintenance, or repair to be performed under this Agreement shall be performed in a good and 4 workmanlike manner pursuant to sound engineering practices and in compliance with all applicable governmental requirements. 7. Right of Entry. The City, its agents and employees shall have the right to enter the Property to inspect and to implement the terms of this Agreement. The City, its agents and employees shall not be subject to or liable for any claims of trespass in connection with such entry. 8. Indemnification. The Owners shall indemnify and hold the City and its City Council members, officers, employees, agents, representatives, attorneys, successors and assigns, harmless from any and all claims arising out of or related to (i) the installation, use, maintenance, repair, removal, damage or destruction of the Improvements, (ii) injury to the Owners or any third party caused by or related to the Improvements, and(iii) damage to real property or personal property of the Owners or any third party caused by or related to the Improvements. 9. Amendment, Release or Termination. Notwithstanding anything herein to the contrary, no amendment, release or termination of any of the provisions of this Agreement shall be effective or may be filed of record unless the City consents to the amendment, release or termination. Such consent must be evidenced by a resolution duly approved by the City Council, or successor body. The Owners, on behalf of themselves and their successors and assigns, expressly acknowledge and agree that the City has no obligation whatsoever to approve or act upon any proposed amendment, release or termination, may withhold or delay consent for any reason or no reason whatsoever, and may condition consent upon such terms as the City deems desirable. The Owners, on behalf of themselves and their successors and assigns, further agree and covenant, consistent with this acknowledgment, not to institute any legal proceedings against the City on the grounds that the City failed to respond appropriately to a proposed amendment, release or termination and to indemnify the City against any expense, including litigation costs, which the City incurs as a result of any violation by that party of this covenant. The City may, at any time, give up the right to approval granted hereunder, said action to be evidenced by City Council resolution or other format approved by the City Attorney. 10. Remedies for Default. a. Termination. If the Owners fail to perform the Owners' obligations as and when required under this Agreement (a"Default"), and fails to cure such Default within thirty (30) days after the City gives written notice to the Owner specifying the Default, subject to such extension as may be reasonably necessary due to weather conditions, then the City may terminate this Agreement by written notice to the Owners. b. Repayment. Upon termination of this Agreement, the City Engineer or his designee shall determine the amount, if any, by which the reimbursement to the Owners for Project costs under this Agreement exceeded the public benefit 5 received by the City from the Project(the "Overage"). The Owners shall repay the Overage to the City within thirty (30) days after receipt of an invoice from the City describing the calculation and the amount of the Overage. If the Owners fail to timely repay such funds, the Owners shall be responsible for the City's attorneys' fees and costs enforcing this Agreement, including costs of collection. c. Force Majeure. Notwithstanding the foregoing, the Owners shall not be liable for repayment of funds received under this Agreement if the failure was caused by reasons proven to be beyond the Owners' control. 11. Duration. This Agreement shall be for a term of ten (10) years and shall constitute a covenant running with the land and shall be binding upon and inure to the benefit of the Parties, and any and all of their successors and assigns. 12. Recording Agreement. The City will record this Agreement against the Property with the Dakota County Recorder's Office within thirty (30) days of full execution of this Agreement, and shall provide the Owners with verification of this recording. 13. Governing Law; Venue. The laws of the State of Minnesota shall govern the interpretation, validity, performance, and enforcement of this Agreement. Any dispute regarding this Agreement shall be venued in the State of Minnesota District Court in Dakota County. Owners' (or Representative's) Contact Information for Long-Term Inspection/Maintenance: Owners: Stephen A. Melcher 1347 Chatterton Road Eagan, MN 55123 Mary S. Melcher 1347 Chatterton Road Eagan, MN 55123 Telephone: 612-405-2405 Email: melcher.stephen@gmail.com IN WITNESS WHEREOF,the undersigned have executed this Agreement effective as of the date first listed above. [Signature pages follow] 6 CITY OF EAGAN WATER QUALITY COST SHARE PARTNERSHIP PROGRAM COST SHARE,OPERATION AND MAINTENANCE AGREEMENT Signature Page of Owners OWNERS: A , �►. , Stephen A. Melcher 64/ dim-._ MaryS. Vlelc er UI STATE OF MINNESOTA ) )ss. COUNTY OF DAKOTA ) The foregoing was acknowledged before me this day of J wrk✓ ,2017,by Stephen A. Melcher and Mary S. Melcher,husband and wife. � t Notary Publ'( S �. $"r GREGG lI�l,/llllll,/lf' ALAN THOMPSON NOTARY PUBLIC-MINNESOTA MY Commission Expires Jan.31,2021 7 CITY OF EAGAN WATER QUALITY COST SHARE PARTNERSHIP PROGRAM COST SHARE,OPERATION AND MAINTENANCE AGREEMENT Signature Page of City CITY: CITY OF EAGAN, a Minnesota municipal corporation By: A, Mike Maguire Its: Mayor BY: eilladt f7 Christina M. Scipion Its: City Clerk STATE OF MINNESOTA ) )ss. COUNTY OF DAKOTA ) The foregoing was acknowledged before me this day of Zk(1lt.. , 2017, by Mike Maguire and Christina M. Scipioni, the Mayor and City Clerk of the City of Eagan, a Minnesota municipal corporation,on behalf of the municipal corporation. d . ,3 Notary P r lic THIS INSTRUMENT WAS DRAFTED BY: CHERYL L STEVENSON E Dougherty, Molenda, Solfest, Hills&Bauer P.A. _ ,. war/PubltalWnneso , Mr Commission Expires Jan s1.2022 14985 Glazier Avenue, Suite 525 Apple Valley,MN 55124 (952) 432-3136 (RBB: 206-4768) 8 {ExhbtA ' j' � rum r .c a `✓ s +. 4 s� s q,. ,Y ^`.`e 4•••w ' 7" a; L C ..or N O = s _ {'' d = Ni r ▪ .� s � H W .� p L L. -� � O N N 0 .COCto N O 11� 041 O N VP- MNNIAM T ..* k, it war, Iv iAr , ,'0". r.,, . tft.:4,,,,,,,,., _%.,,,iviii,:, .., r .x Cn W C 3 O tj: s C 1 cp Li �1 0 O •O x L Q N o 1 0To co fr 0. re" C CO V a ' 0L. LO tri 130 i � �LN � � s, cv sir • L ,_, x COsZ (13 - (/� Lm OnN to y # L th cum Q Q— N N I 'k Ykk. a. uj 0. 4} a L 2 o CI -p 0 •-• -2.3in Q. 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Cost-Share, Operation and Maintenance Agreement 1347 Chatterton Road Action To Be Considered: Approve a Cost Share, Operation and Maintenance Agreement with the Steve and Mary Melcher (1347 Chatterton Road) to help implement a Wetland and Upland Buffer Project at City Pond JP-35 through the Water Quality Cost-Share Partnership Program and authorize the Mayor and City Clerk to execute all related documents. Facts: ➢ On December 4, 2012, the City Council approved a Water Quality Cost-Share Partnership Program (Program), the purposes of which are to: 1) improve water quality in downstream public waterbodies; 2) reduce stormwater runoff into the storm sewer system and public waterbodies; 3) preserve, protect and enhance native plant communities around public waterbodies; and 4) educate and engage the public on the value of improving public water resources, and to develop empowerment and partnership opportunities. ➢ The Program is funded from the stormwater utility fund and is being administered by Water Resources staff according to City Council priorities as designated in approved capital improvement programs, lake management plans, and development agreements. The Program is provided up to $50,000 annually in the 2017-2021 Public Works Department's Capital Improvement Program. ➢ Steve and Mary Melcher will engage a specialized contractor to prepare, plant, and establish a wetland buffer at City Pond JP-35, on approximately 3,025 square feet of the parcel and along approximately 80 linear feet of wetland edge, to protect wetland and upland soils from erosion, reduce stormwater runoff and nutrient impacts to City Pond JP- 35 and enhance native plant communities. ➢ The property owners will be responsible for long-term maintenance of the site for a minimum of the next 10 years. The wetland buffer project will serve as a demonstration area that is will be viewable by neighboring wetland property owners for effective Wetland Buffer/Vegetation Management practices. ➢ The project should be substantially completed by the end of 2017 at a total estimated cost of approximately$8,800. An estimated cost-share of$6,600 (75%of project costs) from the City will be matched by approximately $2,200 of funding (25% of project costs) from the Melchers's. Attachments(1) CQ-1 Cost-Share, Operation and Maintenance Agreement City Council Meeting Minutes June 20,2017 2 page D. It was recommended to approve the ordinary and customary contracts with Eagan Heights LLC, Advantage Equities 10544 LLC,Central Park Commons, LLC,Ancom Communications,and Granicus, Inc. E. It was recommended to approve a resolution and accept donations from Michelle Redmond,the Eagan Citizens Crime Prevention Association and the Eagan Athletic Association. F. It was recommended to approve a resolution approving Special Law regarding National Football League on-sale liquor licensing. G. It was recommended to approve a temporary on-sale liquor license and waive the license fee for St.John Neumann Catholic Church on August 5 and 6, 2017 at 4030 Pilot Knob Road. H. It was recommended to approve a temporary on-sale liquor license and waive the license fee for Faithful Shepherd Catholic School's Septemberfest on September 15-17, 2017 at 3355 Columbia Drive. I. It was recommended to approve a resolution adopting and authorizing implementation of the performance measures developed by the Council on Local Results and Innovation. J. It was recommended to adopt a proclamation recognizing August 1, 2017, as National Night Out in Eagan. K. It was recommended to approve the final payment for Contract 16-19(Central Maintenance Facility Improvements—Brine Production System), and authorize the Mayor and City Clerk to execute all related documents. L. It was recommended to receive a petition to vacate public drainage and utility easement per Dakota County—Yankee Doodle Road (CSAH 28) Right-of-Way Map#272,and schedule a public hearing to be held on July 18, 2017. M. It was recommended to approve an amendment to the telecommunication lease agreement with Verizon Wireless(VAW) LLC d/b/a Verizon Wireless,for upgrades on the Sperry Tower site and authorize the Mayor and City Clerk to execute all related documents. N. It was recommended to authorize a variance to the Construction Activity Noise Regulations to extend construction activity to 24 hours per day,on June 22 and June 23,to McNamara Contracting, Inc.for the mill and overlay of Pilot Knob Road (CSAH 31),from Wescott Road to Yankee Doodle Road. O. It was recommended to approve the recommendation of the Public Works Committee regarding an appeal to a water meter surcharge. P. It was recommended to direct staff to work with the City attorney to prepare an ordinance amendment to the City Code regarding zoning regulation of special events,sound amplification permits and special event permits. Q. It was recommended to approve a Cost Share,Operation and Maintenance Agreement with Steve and Mary Melcher(1347 Chatterton Road)to help implement a Wetland and Upland Buffer Project at City Pond JP-35 through the Water Quality Cost-Share Partnership Program and authorize the Mayor and City Clerk to execute all related documents. R. It was recommended to approve Change Order No. 1 to Contract 17-14(Citywide Traffic signal & Street Light Painting)and authorize the Mayor and Deputy City Clerk to execute all related documents. S. It was recommended to approve a modification to Condition 38 for the Preliminary Planned Development and Phase I Final Planned Development Conditions of Approval for the Viking Lakes development to extend the deadline for the completion of a conference center feasibility study to September 8, 2017. T. It was recommended to direct preparation of an ordinance amendment to City Code regarding the alcohol licensing definition of a restaurant and outdoor dining fencing requirements.