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Page 3 <br /> <br />needed. The City will conduct the annual winterization of the Distribution System. The <br />User shall test the backflow preventers every year before start-up of the Irrigation <br />System. All testing, maintenance, repairs, and replacements of the Irrigation System <br />shall be the responsibility of the User. It shall be the User’s responsibility to ensure <br />water quality is adequate for irrigation prior to system start-up each spring. <br />Notwithstanding anything herein or at law or equity to the contrary, in no event shall the <br />City be responsible for turf degradation, consequential damages or property damage as a <br />result of water quality or supply issues or otherwise by reason of its provision of or <br />failure to provide the services offered by it under this agreement. <br />9. Equipment Failure. In the event there is a mechanical deficiency with the Distribution <br />System which causes the system to become inoperable, the City shall correct the <br />deficiency within thirty (30) days after the User gives written notice to the City <br />specifying the deficiency, or as soon thereafter as reasonably possible if a longer period <br />is required. In lieu of using stormwater for irrigation, the User will be permitted to use <br />municipal water subject to all city restrictions and requirements, and shall be billed for <br />the use of treated drinking water from the City’s municipal water supply system used <br />for irrigation purposes. The city will give credit for months that the Distribution System <br />is out of service due to mechanical failure. For purposes of this agreement the <br />Distribution System shall be considered operable from May 1 to October 31 of each <br />year. For each month that the system is inoperable during this period the parties shall be <br />granted credit against actual irrigation water charges up to 1/6 of the annual charge. <br />10. Credits. the User recognizes the City’s intent and ability to use any excess volume of <br />water quality credits created by the Distribution System as a means of meeting volume <br />and water quality requirements for other projects under Rice Creek Watershed District <br />stormwater management rules. Notwithstanding the foregoing, the User has no <br />obligation to create any such excess credits or to operate their Irrigation System in any <br />manner other than in accordance with the requirements of this Agreement. <br />11. License. The terms of this Agreement shall only create a license for the User to use the <br />Distribution System. This Agreement does not create an interest in real property such <br />as an easement or any other property right. <br />12. No Taking. The termination of this Agreement or services under it by the City shall not <br />constitute a taking as defined in Minnesota Statutes § 117.025. <br />13. Removal. The City reserves the right to remove or limit, as necessary in the opinion of <br />the City Engineer, any and all elements of the Distribution System that threaten the <br />health, safety, or interests of the public. <br />14. Government Immunity. Nothing contained herein shall be deemed a waiver by the <br />City of any governmental immunity defenses, statutory or otherwise. Further, any and <br />all claims brought by the User, its successors or assigns, shall be subject to any <br />governmental immunity defenses of the City under common law and the maximum <br />liability limits provided in Minnesota Statutes, Chapter 466. <br />15. No Third Party Response. Third parties shall have no recourse against the City or the <br />User under this Agreement. The covenants and conditions of this Agreement are <br />intended for the benefit of the parties hereto and are not intended to create any third <br />party beneficiaries.