3245 Terminal Dr - Rain Garden Construction & Maintenance AgreementRAIN GARDEN CONSTRUCTION
AND MAINTENANCE AGREEMENT
This AGREEMENT is made by and between Gliori Properties, LLC, a Minnesota limited
liability company (the "Owner"), and the CITY OF EAGAN, a Minnesota municipal corporation
(the "City"). The Owner and the City shall jointly be referred to as the "Parties
WHEREAS, the Owner is the fee owner of real property located at 3245 Terminal Drive,
Eagan, Minnesota, and legally described as
Lot 2, Block 1, DG Welding First Addition, according to the recorded plat thereof,
Dakota County, Minnesota
(the "Property"); and
WHEREAS, on May 5, 2009, the City Council approved a Conditional Use Permit for
the Property subject to a number of conditions, including but not limited to the preparation and
signature of detailed grading plans by a registered professional engineer, installation of a rain
garden according to the guidance of the Minnesota Pollution Control Storm Water Manual with
oversight and inspection by City staff and signature of a maintenance agreement providing for
long -term maintenance of the rain garden, in a form acceptable to the City attorney; and
WHEREAS, the purpose of installing and maintaining the rain garden is to manage storm
water and protect water cpialityin connection with the new outdoor storage and parking areas on
the Property; and
WHEREAS, the Owner submitted to City staff a Grading and Drainage Plan prepared by
Jacobson Engineers Surveyors dated April 6, 2009, attached hereto as Exhibit A and
incorporated herein, a full size copy of which is available for inspection at City Hall; and
WHEREAS, the Owner submitted to City staff a Rain Garden Plantings plan prepared by
Cattail Design LLC dated May 2009, attached hereto as Exhibit B and incorporated herein, a full
size copy of which is available for inspection at City Hall; and
WHEREAS, the Owner and the City desire to make certain mutual provisions to
memorialize the allocation of responsibilities and obligations for the construction and
maintenance of the rain garden, as between the Parties, on the terms and conditions hereinafter
set forth;
NOW, THEREFORE, in consideration of the foregoing and the covenants contained
herein, the Parties agree as follows:
1. Construction and Maintenance.
1.1 Infiltration Capacity Defined. The first one -half (1/2) inch of storm water runoff
from any storm event and from all new impervious surfaces (28,550 square feet) and 44% of
existing impervious surfaces (28,900 square feet) shall be infiltrated or retained in the rain
garden. The design volume of storm water shall infiltrate into the ground with no standing water
remaining 72 hours after completion of a rain event (the "Infiltration Capacity").
1.2 Construction Requirements. The rain garden shall be constructed in accordance
with the Grading and Drainage Plan attached hereto as Exhibit A, the Rain Garden Plantings
plan attached hereto as Exhibit B, and the Minnesota Pollution Control Agency Storm Water
Manual (collectively the "Specifications").
1.3 Maintenance Obligation. The Owner shall maintain and repair, when necessary,
the rain garden in accordance with the Specifications and the standards set forth in this
Agreement. If at any time the rain garden fails to conform to the Specifications and the
st- ndards set forth herein, including, but not limited to, the infiltration Capacity, the Owner shall
immediately correct the non conformance in accordance with a City- approved remediation plan
and schedule. The Owner shall submit to the City a proposed remediation plan and schedule to
repair the rain garden to the standards set forth herein. If the City approves the proposed
remediation plan and schedule, the Owner shall perform the remediation in compliance
therewith.
1.4 Snow and Leaves Removal and Prohibited Storage.
The Owner shall sweep clean the paved areas on the Property in April or May each year
to remove from the Property all sand and salt deposited on the private streets, driveways, parking
area and walkways. The Owner shall remove all tree leaves from the Property after they fall to
the ground in October and November each year. The Owner shall not deposit or store snow
within the rain garden.
1.5 Personal Property or Debris Storage Prohibited. The Owner shall not deposit or
store any personal property or debris, litter, or other objects within the rain garden and the Owner
shall keep the rain garden free of any debris, leaves, litter, or other objects.
1.6 Maintenance of Vegetation. The Owner shall maintain and, when necessary,
replace the approved plants and vegetation set forth in the Rain Garden Plantings plan attached
hereto as Exhibit B and incorporated herein. With the exception of normal plant maintenance,
such as pruning, dividing or thinning vegetation, the Owner shall seek approval from the City
before altering the plants used in the rain garden. The Owner shall not use any chemicals within
the rain garden unless first approved by the City and only when necessary for the protection of
the rain garden or its vegetation. The Owner shall repair any erosion within or surrounding the
rain garden.
1.7 Maintenance Costs. The Owner shall pay all costs associated with maintaining
and repairing the rain garden.
2. Inspections.
2.1 Monthly Inspections. The Owner shall conduct monthly inspections of the rain
garden, at the Owner's sole cost and expense, to ensure the Infiltration Capacity and a healthy
plant community are maintained. If necessary, the Owner shall repair the rain garden if the
Infiltration Capacity or healthy plant community is not in conformance with the standards set
forth herein. Repairing landscape and vegetation to maintain a healthy plant community may
include replacement of dead or diseased plants, vegetation or mulch and removal of noxious
weeds, litter or other debris.
2.2 Annual Inspections. The rain garden shall be inspected annually by a Qualified
Person selected by the Owner to determine whether or not the rain garden is functioning in
accordance with the Specifications and this Agreement, including but not limited to the
Minimum Infiltration Capacity. As used in this Agreement, the term `!Qualified Person" shall
mean a professional engineer licensed by the State of Minnesota, or a person approved by the
City Engineer based on training and experience. The Owner's responsibilities under this Section
shall be at the Owner's sole cost and expense. If, as a result of the inspection, the rain garden is
determined not to be functioning in accordance with the Specifications and this Agreement, the
Owner shall restore /repair the rain garden to function as specified herein. Upon request from the
Owner, the City Engineer may establish an inspection schedule permitting such inspections to be
performed less frequently than annually, but the City Engineer may reinstate the annual
inspection schedule at any time by notice to the Owner.
23 City Notification and Independent Inspection. The City shall be notified at least
48 hours prior to each annual inspection or any maintenance of the rain garden 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 rain garden at any time, but the City
shall use reasonable efforts to notify the Owner of its intent to enter the Property to inspect.
2.4 Inspection and Maintenance Report. The owner shall submit a report to the City,
no later than two (2) weeks after any annual inspection or maintenance of the rain garden,
providing the following information:
a. Date and time of inspection
b. Log of findings
c. Date and time of maintenance
d. Log of maintenance performed.
3. Remediation and Waiver of Rights.
3.1 Remediation Plan. If the City determines that the rain garden does not conform to
the Minimum Infiltration Capacity or any other requirements of the Specifications or this
Agreement, the City shall notify the Owner of the deficiency in writing. The Owner shall submit
a proposed remediation plan and schedule to the City within thirty (30) days after receipt of such
notice. If the proposed remediation plan and schedule are not acceptable to the City, the City
shall notify the Owner of the deficiency, and the Owner shall submit a revised plan to the City
within fourteen (14) days after receipt of such notice.
3.2 Failure to Repair. If the Owner fails to submit a proposed remediation plan and
schedule to the City as prescribed above, or fails to implement a City- approved remediation plan,
then at the sole cost and expense of the Owner, the City shall have the right, but no obligation, to
prepare a remediation plan for the rain garden and complete all work necessary to correct the rain
garden so as to bring it into compliance with the Infiltration Capacity and Specifications.
3.3 Reimbursement to the City. The Owner shall reimburse the City within thirty
(30) days after receipt of an invoice from the City for any and all costs incurred by the City in
connection with preparing a remediation plan for the rain garden and all work completed by the
City to bring the rain garden back into compliance with the Infiltration Capacity and
Specifications.
3.4 Waiver of Rights. If the Owner does not timely reimburse the City, the City may
recover its costs by levying a special assessment against the Property. The Owner, on behalf of
itself and its successors and assigns, hereby acknowledges the benefit of such maintenance to the
Property and waives any rights to hearings or notice of hearings relating to the levying of any City
assessments or the right to contest the assessments under Minnesota Statutes 429.081.
3.5 Right of Entry. The City shall have the right to enter the property to inspect and to
implement the terms of this Agreement. The City shall not be subject to or liable for any claims of
trespass by the Owner.
4. Standards for Performance. Any act of construction, maintenance or repair to be
performed under this Agreement shall be performed in a good and workmanlike manner pursuant
to sound engineering practices and in compliance with all applicable governmental requirements.
5. 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 Owner, on behalf of itself
and its successors and assigns, expressly acknowledges and agrees 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, any may condition consent
upon such terms as the City deems desirable. The Owner, on behalf of itself and its successors
and assigns, further agrees and covenants, 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.
6. Duration. This Agreement 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.
7. Recording Agreement. The Owner shall record this Agreement against the Property
with the Dakota County Recorder's Office within thirty (30) days of full execution and shall
provide the City with verification of recording within ninety (90) day of full execution of this
Agreement.
8. Governing Law. The laws of the State of Minnesota shall govern the interpretation,
validity, performance and enforcement of this Agreement.
[Signature page follows
CITY OF EAGAN
J f
By: Mike Ma
Its: Mayor
By: Maria Petersen
Its: City Clerk
STATE OF Nab 1a.-
)s
COUNTY OF
JULIE A. STRID b'
NOTARY PUBLIC MINNESOTA n
My Commission Expires Jan. 31, 201n
STATE OF MINNESOTA
ss.
COUNTY OF DAKOTA
JULIE A. `'T"''D
NOTARY PUBLIC MINNESOTA
My Commission Expires Jan. 31, 2010
THIS INSTRUMENT WAS DRAFTED BY:
SEVERSON, SHELDON, DOUGHERTY
MOLENDA, P.A.
7300 West 147th Street, Suite 600
Apple Valley, MN 55124
(952) 953 -8832
(MDK: 206- 28905)
Gliori Properties, LLC
forego g instrument was, acknowledged before me this day of
2009, by 'AAA .�u'Illy Cih QY I the O\Jb;V of Gliori
LLC, a Minnesota limited liability company, on behalf e limited 1; bili comp
The foregoing instrument was acknowledged before me this I .J day of
2009, by Mike Maguire and Maria Petersen, the Mayor and City Clerk of the City of ]agan, a
Minnesota municipal corporation, on behalf of the munici orporation. A
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