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<br />Page 3 <br /> <br />7. Operation. The City shall operate and maintain the Distribution System. The <br />Annual Fee is an approximation of the City’s cost to operate, maintain and repair the Distribution <br />System over the 25-year term of this Agreement pro rata based upon the User’s use of the <br />Distribution System. Notwithstanding the foregoing, there shall be no adjustment to the Annual <br />Fee except as otherwise provided herein. <br />8. Maintenance. The User shall allow the City such access over the Property as is- <br />reasonably needed to construct, maintain, repair and/or replace the Distribution System. The User <br />shall coordinate winterization of its Irrigation System with the City, as needed. The City will <br />conduct the annual winterization of the Distribution System. The User shall test the backflow <br />preventers every year before start-up of the Irrigation System. All testing, maintenance, repairs <br />and replacements of the Irrigation System shall be the responsibility of the User. It shall be the <br />User’s responsibility to ensure water quality is adequate for irrigation prior to system start-up <br />each spring. Notwithstanding anything herein or at law or equity to the contrary, in no event shall <br />the City be responsible for turf degradation, consequential damages or property damage as a result <br />of water quality or supply issues or otherwise by reason of its provision of or failure to provide <br />the services offered by it under this Agreement. <br />9. Equipment Failure. In the event there is a mechanical deficiency with the <br />Distribution System which causes the Distribution System to become inoperable, the City shall <br />correct the 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 is <br />required. During such period of inoperability, in lieu of using stormwater for irrigation, the User <br />will be permitted to use municipal water subject to applicable City restrictions and requirements, <br />and the User shall be billed for the use of treated drinking water from the City’s municipal water <br />supply system used for irrigation purposes. The City will credit the Annual Fee for any months <br />that the Distribution System is out of service due to mechanical failure or inoperability. For <br />purposes of this Agreement, the Distribution System shall be considered operable from May 1 to <br />October 31 of each year. For each month that the Distribution System is inoperable during this <br />period the User shall be granted credit against the Annual Fee in an amount of up to one-sixth <br />(1/6) of the Annual Fee. <br />10. Credits. The User recognizes the City’s intent and ability to use any excess <br />volume of 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 stormwater <br />management rules. Notwithstanding the foregoing, the User has no obligation to create any such <br />excess credits or to operate its Irrigation System in any manner other than in accordance with the <br />requirements of this Agreement. <br />11. License. The terms of this Agreement shall only create a license for the User to <br />use the Distribution System. This Agreement does not create an interest in real property such as <br />an easement or any other property right. <br />12. No Taking. The termination of this Agreement or services under it by the City <br />shall not 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 <br />opinion of the City Engineer, any and all elements of the Distribution System that threaten the <br />health, safety or interests of the public.