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HomeMy WebLinkAbout2011-05-04 PACKET 08.A.REQUEST OF CITY COUNCIL ACTION COUNCIL AGENDA MEETING ITEM # DATE 5/4/11 io 4 PREPARED BY Community Development Jennifer Levitt ORIGINATING DEPARTMENT STAFF AUTHOR COUNCIL ACTION REQUEST Consider authorizing the execution of an agreement with the Minnesota Land Trust establishing a restrictive land conservation easement on the 11.2 -acre City -owned parcel of land formerly know as the "Gonyea Parcel." STAFF RECOMMENDATION Adopt the resolution authorizing the execution of an agreement with the Minnesota Land Trust. BUDGET IMPLICATION $ $ BUDGETED AMOUNT ACTUAL AMOUNT FUNDING SOURCE ADVISORY COMMISSION ACTION SUPPORTING DOCUMENTS ® MEMO /LETTER: Memo from John M. Burbank dated 4/29/11 ® RESOLUTION: Draft ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: ® OTHER: Conservation Easement - Draft ADMINISTRATORS COMMENTS 4-JMA L/w/tIr ity Administrator Date COUNCIL ACTION TAKEN: []APPROVED ❑ DENIED ❑ OTHER DATE REVIEWED APPROVED DENIED ❑ PLANNING ❑ ❑ ❑ ❑ PUBLIC SAFETY ❑ ❑ ❑ ❑ PUBLIC WORKS ❑ ❑ ❑ ® PARKS AND RECREATION 4/11/11 ❑ ® ❑ ❑ HUMAN SERVICES /RIGHTS ❑ ❑ ❑ ❑ ECONOMIC DEV. AUTHORITY ❑ ❑ ❑ ❑ ❑ ❑ ❑ SUPPORTING DOCUMENTS ® MEMO /LETTER: Memo from John M. Burbank dated 4/29/11 ® RESOLUTION: Draft ❑ ORDINANCE: ❑ ENGINEERING RECOMMENDATION: ❑ LEGAL RECOMMENDATION: ® OTHER: Conservation Easement - Draft ADMINISTRATORS COMMENTS 4-JMA L/w/tIr ity Administrator Date COUNCIL ACTION TAKEN: []APPROVED ❑ DENIED ❑ OTHER CITY OF COTTAGE GROVE MINNESOTA TO: Mayor and Members of the City Council Ryan Schroeder, City Administrator FROM: John M. Burbank, Senior Planner DATE: May 4, 2011 RE: Minnesota Land Trust Easement Introduction The City Council is requested to consider formally entering into an agreement with the Minnesota Land Trust (http: //www ® MrLtgnd.orq) establishing a restrictive land conservation easement on an 11.2 -acre City -owned parcel of land formerly known as the "Gonyea parcel' and is located In the 52 acre Gateway North Park and Open Space area. Everwood Amended Easement Line Everwood Amended Easement Line G I Everwood Amended Easement Line I Background During the parkland dedication discussions associated with the Everwood subdivision, the City tentatively agreed to encumber the "Gonyea parcel' with a conservation easement. Once ex- ecuted, the easement would be granted in favor of the Minnesota Land Trust. The purpose of the easement is to permanently protect the parcel and clarify activities related to development, man- agement, and use. The City has worked with the Land Trust and property owners over the years in Honorable Mayor, City Council, and Ryan Schroeder Minnesota Land Trust Easement May 4, 2011 Page 2 of 2 the protection of several parcels within the community that are ranked highly in the City's Natural Resource Inventory. A draft of the proposed easement is attached. Parks Commission The Parks Commission reviewed the draft easement at their regular Commission meeting in April and recommended that the City Council follow through with the execution of the formal easement. Discussion The initial discussions on the easement modification began in 2006 prior to the filing of the plat ap- plication. The creation of the document in this packet did not commence until after the approval of the easement modification by a judge and the approval of the preliminary and final plats. Upon in- itiation of action by City Staff, title research was completed and the City Attorney assisted in the creation of the attached conservation easement document. All of those tasks took some time to get to this point of action. The benefits of the City dedicating the 2011 easement area is that the preliminary commitment to follow through with the easement dedication helped facilitate the modification and addition to the existing easement that was held by the Land Trust. This modification, which was judicially ap- proved, removed some marginal protected areas along East Point Douglas Road and added high quality natural areas to the easement area. This land was formerly known as the Thompson prop- erty and is adjacent to publicly held land along Hardwood Avenue. The 31.5 acres of land encom- passed by the modified easement were eventually dedicated to the City as public park and open space. This dedicated land is included in the total 52 -acre Gateway North Park and Open Space area. The Historic Camel's Hump landform that was acquired during the platting of the Hidden Oaks subdivision is also encompassed in this Gateway Open Space. Summary This is a unique piece of property within the community, which is one of the reasons it was initially acquired by the City. The addition of the preservation easement adds another level of protection to ensure that the property will be permanently protected from development and would not be subject to the whims of any actions by future Councils. This is one of the main gateways into the commu- nity and having such a large amount of land within a conservation easement is a unique asset and marketing point. Recommendation Adopt a resolution authorizing the execution of an agreement with the Minnesota Land Trust establishing a restrictive land conservation easement on the 11.2 -acre City -owned parcel of land formerly known as the "Gonyea parcel" (PIN 07- 027 - 21-41- 0004). Draft # 3 Date: April 27, 2011 CONSERVA This is a CONSERVATION corporation under the laws of the State of Trust, a non - profit corporation organized (the "Land Trust ".) A. in The Pi which Property tract of land owned by the Owner, a portion of B. MINNESOTA LAND TRUST. The Minnesota Land Trust is a non - profit corporation organized and operated exclusively for charitable and educational purposes including the preservation and protection of land in its natural, scenic or other open space condition. The Land Trust is a public charity as defined in Sections 501(e)(3) and 509(a) of the Internal Revenue Code and an organization qualified to hold conservation easements under Minnesota law and Section 170(h) of the Internal. Revenue Code and related regulations, possessing the commitment to protect the conservation purpose of this Easement and the resources to enforce the restrictions. e Grove, a municipal he Minnesota Land the State of Minnesota owner of approximately 11 acres of real property located That real property is more fully described below as the C. PROTECTED PROPERTY. The Protected Property is that real property legally described in Exhibit A and generally depicted on the "Property Map" in Exhibit B. Both exhibits are attached to this conservation easement and incorporated by this reference. The Protected Property is located along Highway 61 in the City of Cottage Grove, which is part of the larger Minneapolis -St. Paul metropolitan area. Known to area residents as "Camel's Hump Park," the Protected Property is named for its unique topography, which is part of a larger geologic feature cor6isting of steep broken ridges of remnant sandstone and limestone bedrock. The Protected Property consists of approximately 10 acres of oak forest, less than half an acre of woodland, less than half an acre of grassland, and one acre of pipeline corridor. No structures or improvements currently exist pipeline, however, crosses the Protected Propt described in the baseline property report re ""i The Protected Property is currently used for low observation. The natural attributes of the Protecte provided by the oak woodland -brush The bluff prairie and a portion of the County Biological Su e as signific moderate biodiversity significance. The scenic attributes of it are prominently visible to and proffd`e relief from 6.. Camel's Hump Park, as p Protected Property. The Protected Property is development. Developm impair the natural and sec Preservation of the Prote< that is unique in the metre oak Property The pipeline is more in secf[on 6 of this 1 natural gas use and the relatively natural wildlife habitat oak forest „a remnant bluff prairie. ave been mapped by the Minnesota mmunifies and also lie in an area of the wooded bluffs and hillsides, which lie roads, including U.S. Highway 61, )ed nature of the surrounding area. Grove park system, provides public access to the an area experiencing residential and commercial Protected Property for either of these purposes would character of the area. Property provides an opportunity to permanently protect an area itan area due to the relative rarity of its plant communities. D. CONSERVATION VALUES. Collectively and individually, the following natural, scenic and open space qualities of the Protected Property that are outlined above comprise its "Conservation Values:" The undeveloped and relatively natural character of the Protected Property provides significant habitat for a variety of plants, such as blue vervain, prairie cinquefoil, whorled milkweed and purple prairie clover, and for wildlife, including forest birds. • The wooded bluffs and hillsides of the Protected Property provide scenic and recreational enjoyment for the general public through use of the larger park. Scenic views of the Protected Property are also visible to the general public from nearby public roads, including U.S. Highway 61 and Point Douglas Road. • Access to the Protected Property will provide the outdoor recreation and/or education. These Conservation Values have not been and are not lil the continued use of the Protected Property as described Easement or by the use, maintenance, or construction of that presently exist on the Protected Property`�or that are The preservation and protection of these to the public. E. CONSERVATION POLICY. Presery Protected Property are consistent with public with opportunities for to be significantly impaired by ve or as authorized in this structures anc prized below. provide significant benefit Values of the policies including those established by the • The policies set forth in the City of Cott 18, 2000, relating _to Parks and Open Sp (1996) and the Gateway District Master Grove Comprehensive Plan adopted October the West Draw Task Force Final Report October 5, 2005. 6unty Land and Water Legacy Program 2010, which identifies the Protected Property priority Minnesota Statutes Chapter 84C which recognizes the importance of private conservation efforts by authorizing conservation easements for the protection of natural, scenic, or open space values of real property, assuring its availability for agriculture, forest, recreational, orropen space use, protecting natural resources, and maintaining or enhancing air or wa "te"r quality. F. CONSERVATIONINTENT. The Owner and the Land Trust are committed to protecting and preserving the Conservation Values of the Protected Property in perpetuity. Accordingly, it is their intent to create and implement a conservation easement that is binding upon the current Owner and all fiiture owners of the Protected Property and that conveys to the Land Trust the right to protect and preserve the Conservation Values of the Protected Property for the benefit of this generation and generations to come. CONVEYANCE OF CONSERVATION EASEMENT Pursuant to the laws of the State of Minnesota, and in particular Minnesota Statutes Chapter 84C, and in consideration of the facts recited above and the mutual covenants contained herein, the Owner hereby conveys and warrants to the Land Trust and its successors and assigns a perpetual conservation easement over the Protected Property. This conservation easement creates a property right immediately vested in the Land Trust and consists of the rights, terms, and restrictions set out below (the "Easement. ") CONSERVATION PURPOSE. The conservation pur significant public benefit by preserving and protecting of the Protected Property identified above as those val and as they may evolve in the future. This purpose is accomplished by confining the developme Protected Property to activities and improvements that are these Conservation Values, by prohibiting activities and it impair or interfere with these Cons�qrvation Values, and b} event of any violation of this Easement. 2. RESTRICTIONS. Any activity or imps manner that may significantly impair or Protected Property Easement is prohtP This specifically the essential seer as following: its Easement is to provide tuity the Conservation Values at the time of this conveyance anagement and use of the istent with the preservation of ✓ements that significantly ✓iding for remedies in the use of the Pid(ected Property in a he Conservation Values of the or the 6onservation purpose of this t that would interfere with or intrude upon etyor the visual enjoyment of the open and general public. 3 of this Easement and without limiting the used upon the Protected Property expressly 2.1. Industrial Activity No industrial use of the Protected Property is allowed. 2.2. Commercial Activity No commercial use of the Protected Property is allowed except for forest management, minimal commercial recreational use, or other use specifically permitted in ✓`section 3 of this Easement or except as incidental to other uses or activities specifically permitted in this Easement. 2.3. Agricultural Use No agricultural use of the Protected Property is allowed. This includes and prohibits tilling, plowing, commercially cultivating row crops, keeping or grazing livestock, haying, feedlots, tree farms, orchards or nurseries. This does not include or prohibit beekeeping, maple syrup collection, or vegetation management activities allowed in section 2.13 of this Easement. 2.4. Residential Use and Development No residential use or development of the Protected Property is allowed. 2.5. Division of the Protected Propert y . The Protected Property may not be divided, subdivided, or partitioned. The Protected Property may be conveyed only in its entirety as a single parcel under single ownership (joint or undivided) regardless of whether it now consists of separate parcels, was acquired s,separate parcels, or is treated as separate parcels for property tax or other purpoies. The general prohibition set out above does not a. The division of the Protected Property whe" p€,)rtion of the Protected Property is being conveyed to a conservation entit' defined in section 7.1 of this Easement. b. The correction or adjustment of limutdary lines'tp resolve an 2.6. Development Rights No portion of the Protected Property may be used to satisfy land area requirements for other property not subject to this Easement for purposes of calculating building density,' lot coverage, open space, or natural resource use or extraction under otherwise applicable laws, regulations, or ordinances controlling land use. The development rights that have been encumbered' or extinguished by this Easement may not be transferredto any other property orused to obtain any regulatory mit{jition credits. 2.7. Rightso Way No new right of way shall be granted across the Protected Property by the Owner in conjunction with any industrial, commercial, or residential use or development of other land not protected by this Easement without the prior approval o£ the Land Trust under the provisions of section 7.6 of this Easement. This provision does not affect any rights of way, including the pipeline corridor, existing at the time of this convevance. 2.8. Structures and Improvements No temporary or permanent buildings, structures, utilities, roads or other improvements of any kind may be placed or constructed on the Protected Property except as specifically permitted in section 3 of this Easement or as set forth below: a. Utilities Utility systems and facilities may be installed, maintained, repaired, extended, and replaced to serve only uses and activities specifically permitted by this Easement. Permitted utility systems and facilities include, without limitation, all systems and facilities necessary to provide on -site power, fuel, water, waste disposal, and communication. Permitted utility systems and facilities do not include communication towers, wind turbines, or similar structures without the prior approval of the Land Trust under the provisions of section 7.6 of this Easement. This provision does not affect rights of third parties regarding the existing pipeline corridor that were created under documents of record in existence at the time of this conveyance. b. Siens No billboards or other signs may be placed or erected on the Protected Property except for small, unlighted signs for informational or interpretive purposes that do not impair or interfere with the natural habitat or scenic qualities of the Protected Property. Additionally, the Owner may also construct and and signs as permitted in section 3.4 of this Las€ permission, the Land Trust may place signs on t the land as protected. c. Roads and Parking Areas A paved p established and maintained on the6I approved Park Development Concept Easement. No other roads, drivewa, the Protected Property w provisions of section 7.6 d. Trails Unpaved or foot motorized recreational uses. P as Ti cessary to meetsequiremc similar laws or regulations and the an in a park entry monument With the Owner's gcted Property identifying road and parking.: perty only in acco emitted in section may be an areas may he established or constructed on or approval of the Land Trust under the inay be establi Thed and maintained for non- trails may be established and maintained only f the American with Disabilities Act or accordance with an approved Park .Ain section 3.4 of this Easement. Trails sed in a manner that does not result in impact on the natural and scenic quality of beonstructed, maintained, improved, replaced or removed to secure the Protected Property, or as needed in carrying out by this Easement. f Outdoor Li Ping In order to minimize sky glow or light pollution originating from the Protected Property, permanent outdoor lighting is allowed only on buildings and structures permitted in section 3.4 below. Additionally, any outdoor light fixtures must minimize light emitted above the plane of the horizon of the fixture through the use of earthward directed or full cut -off fixtures or lamps with single or minimal -color light sources, or other equally effective fixtures designed to minimize light pollution. 2.9. Dumping No trash, non- compostable garbage, debris, unserviceable vehicles or equipment, junk, other unsightly material or hazardous or toxic substances may be dumped or accumulated on the Protected. Property. This does not prohibit routine disposal and collection of trash and garbage associated with the uses and activities specifically permitted by this Easement. This also does not prohibit temporary placement of building materials, debris or refuse containers if incidental to activities and construction permitted by this Easement. 2.10. Mining and Extraction No mining, drilling, exploring for, or removing any minerals, sand, gravel, rock, or fossil fuels from the Protected Property is allowed. 2.1.1. Topography and Surface Alteration No alteration surface of the Protected Property is allowed. This filling and no excavation or removal of soil or o fic This does not, however, include or prohibi construction or other activities or uses.oth, Easement. Any alteration resulting e m e be undertaken with minimal disturbance t< proper erosion control practices. At the cc restored in a timely mannef to a condition this Easement. change in the topography or the Ludes no ditching, draining or naterial._ Iterations incidental to any ,ifically permitted by this e permitted activity or use shall graphy and vegetation and with f the°activity, the surface shall be with the conservation purpose of This provision does not include or prohibit creation, mainteifahce, restoration or enhancement of wildlife habitat of native biological communities otherwise permitted imder section 3of this Easement. 2.12. Water ,,,No alteration, manipulation or diversion of natural watercourses, lakes, shorelines, wetlands or tither surface or subsurface bodies of water or creation of new wetlands or water bodies is allowed except to restore or enhance wildlife habitat or 4ive biological communities, td improve or enhance the function and quality of existing wetlands or water bodies or as specifically permitted in section 3 of this Easement. does not prohibit the installation of wells under the provisions of section 2.8 e,or water uses incidental to activities and uses otherwise specifically permitted by Any alteration or of wetlands or water bodies must be undertaken in accordance with a habitat management plan approved by the Land Trust under section 3 of this Easement. No activities on or uses of the Protected Property that cause significant erosion or that significantly impair water quality are allowed. 2.13. Vegetation Management No removal, cutting, pruning, trimming or mowing of any trees or other vegetation, living or dead, and no introduction of non -native species is allowed except as follows: a. In conjunction with park management, and with forest and habitat management as specifically permitted in section 3 of this Easement. b. As reasonably required to construct and maintain buildings, structures, roads, trails and other improvements specifically permitted under this Easement and provided that following any construction vegetation shall be restored in a timely manner to a condition consistent with the c. As reasonably required to prevent or control vegetation, disease, fire, personal injury, or I d. Landscaping in areas immediately specifically authorized in section 3 e. Harvesting naturally occurring p AI: herbs, prairie seed, etc.) in a manner reproduction cycle for the harvested vegetation. Nothing in this section allows the inter vegetation on the Protected Property. 2.1.4. Vehicles Lim. ted off -road use of mot with vegetation management, park dev or eimpocement, anu vehicles may be used that impairs or interfe This [M uses permitted by this in a manner that does ith the natural habitat, of this Easement. noxious weeds, invasive mushrooms, b >; a sustainable ons and the su or as of recognized invasive ved only in conjunction went, habitat restoration However, motorized not result in significant erosion or water quality or scenic quality of to otherwise limit the use of motorized vehicles on ,patter this Easement or in conjunction with construction structures, roads, trails and other 3. RESERVED RIGHTS. The Owner retains all rights associated with ownership and use of the Protected Property that are not expressly restricted or prohibited by this Easement. The Owner may not, however, exercise these rights in a manner that impairs or interferes with the Conservation Value's of the Protected Property. Additionally, the Owner must give notice to the Land Trust before exercising any reserved right that might impair or interfere with the Conservation Values of the Protected Property. Without limiting the generality of the above, the following rights are expressly reserved and the Owner may use and allow others to use the Protected Property as follows: 3.1. Right to Convey The Owner may sell, give, lease, bequeath, devise, mortgage or otherwise encumber or convey the Protected Property. This right to convey the Protected Property is subject to the following provisions. a. Covered Transactions Any Lease, deed or other conveyance or any encumbrance of the Protected Property is subject to this Easement. b. Notice to New Owner The Owner will reference or insert the terms of this Easement in any deed or other document by which the Owner conveys title to or any interest in the Protected Property. The Owner will also specify to what extent rights reserved under this Easement have been exercised, if at all, and are no longer available for use by a new owner and"uhich reserved rights are specifically allocated to the property being conveyed. c. Notice to Land Trust The Owner yvitl notify the Land Trust of any proposed conveyance of title to the Protect ,u Property at least fifteen (15) days before closing. The Owner will also provide the Land Tr0s with the name andyaddress of the new owner of the Protected Property and a copy Of the deed transferring title within fifteen (15) days after closing. Notice and documents shall be sent to the Land Trust as set out in section 7.6 of this Easement. d. Designated Representative If the Protected Property is 6"ed by a trust, business entity or any common or jointly held ownership, the Owner shall designate a representit#y,,eauthorized to receive i&ice on behalf of the Owner and provide the Land Trust with the name and address of the designated representative. The 01 *,r shall notify the Land Trust of any change in the designated representative and nrovide the Land Trust with the new name, address and other contact teen (15) days afterthe change. e. Notice of Action Affecting Easement The Owner will also notify the Land Trust of any proposed condemnation or any claim, legal proceeding, foreclosure or other legal action that mighfaffect title to the Protected Property or the validity or The' enforceability or validity of this Easement will not be impaired or limited by any failure of the Owner to comply with this section 3.1. 3.2. Habitat Management The Protected Property may be used to create, maintain, restore, or enhance habitat for wildlife and native biological communities in accordance with a management plan approved by the Land Trust under the provisions of section 7.6 of this Easement. The Owner may remove timber and other wood products and otherwise manage the vegetation on the Protected Property in accordance with this approved management plan or as otherwise permitted under section 2.13 of this Easement. 3.3. Recreational and Educational Uses The Protected Property may be used for hiking, cross - country skiing, nature observation or study, and other non - intensive recreational and educational programs or activities that have no more than minimal impact on the Conservation Values of the Protected Property. The Protected Property may not be used for more than minimal commercial recreational purposes. 3.4. Recreational and Educational Structures and Improvements Minor rustic structures such as tents and tent platforms, trail barriers, benches, and informational kiosks that do not impair or interfere with the natural habitat clscenic qualities of the Protected Property may be placed on the Protected Property in conjunction with permitted recreational and educational uses. Such structures i]Ray not be used for continuous residential use and no utilities may be installed to'service such structures without the prior approval of the Land Trust under, the provisions of section 7.6 of this Easement. Additionally, the Owner may construct and - maintain - limited recreational and educational structures and improvements, including'but nbt limited to, park entry monument and signs, an overlook area, a gathering space, trails, outdoor lighting, raingardens, a parking area, and parking access road.: All structures and improvements must be in accordance with a Park Development Concept Plan approved by the Land Trust under the provisions of section 7.6 of this Easement and must be designed and constructed so as to prevent erosion and not detract fronn.the natural and scenic character of th "Protected Property. 4. LAND TRUSY" "S RIGHTS AND REMEDIES. In order to accomplish the conservation purposes of this Easement to preserve and protect the Conservation Values of the Protected Property, the Land Trust has the following rights an remedies: 4.1. Right to En €cr The Land Trust has the right to enter the Protected Property at reasonable tinges and in a reasonable manner for the following purposes: a. , To inspect the Protected Property and to monitor compliance with the terms of this Easement. b. To obtain evidence for use in seeking judicial or other enforcement of this c. To survey or otherwise mark the boundaries of all or part of the Protected Property if necessary to determine whether there has been or may be a violation of this Easement. Any survey or boundary demarcation completed under this provision that documents a violation of the Easement will be at the Owner's expense. d. To otherwise exercise its rights under this Easement. 10 4.2. Access In order to enter the Protected Property, the Land Trust shall have a right of pedestrian access over adjacent property also protected with a conservation easement in favor of the Land Trust, which property is legally described as Outlots A, B, C and G of Everwood, City of Cottage Grove, Washington County. Additionally, the Land Trust shall have a right of way over any other available approach or public road to the Protected Property that the Owner is entitled to use now or may be entitled to use in the future. 4.3. Right of Enforcement The Land Trust has the right to prevent or remedy violations of this Easement, including prohibiting the construction of buildings or improvements, through appropriate judicial action brought in any court of competent jurisdiction, or through other methods of dispute resolution, against the Owner or other responsible party. a. Notice The Land Trust may not initiate judicial action until the Owner has been given notice of the violation, or threatened violation, of this Easement and a reasonable opportunity to correct the situation. This provision shallx of apply if in the Land Trust's sole discretion and exclusive judgment immediate judicial action is necessary to prevent or mitigate significant impairment to or interference with the Conservation Values of the Protected Property or if reasonable, good faith efforts to notify the Owner are unsuccessful. b. Remedies _ lit enforcing this Easement, the Land Dust has the right to: • jTernporary or permanent injunctive relief for any violation or threatened violation of this Easement. • Require restoration of the Protected Property to its condition at the time of this conveyance or as otherwise necessitated by a violation of this Easement. • Specific performance or declaratory relief. • Recover damages resulting from a violation of this Easement or injury to any Conservation Values associated with the Protected Property. medies are cumulative and are available without requiring the Land Trust actual damage to the Conservation Values of the Protected Property. The Land f'i'st and the Owner agree that the damages created by a violation of this Easement may be determined by calculating the cost of acquiring a conservation easement over similar property. The Land Trust and the Owner also recognize that restoration, regardless of cost, may be the only adequate remedy for certain violations of this Easement. The Land Trust is entitled to seek expedited relief, ex parte if necessary, and shall not be required to post any bond applicable to a petition for such relief. ii c. Costs of Enforcement If judicial action is required to prevent or remedy violations of this Easement, each party involved in the action shall be responsible for its own costs and attorneys fees. The court may, however, require reimbursement of costs and attorneys fees to the party that prevails in the action. d. Enforcement Decisions Enforcement of the terms of this Easement is solely at the discretion of the Land Trust. The Land Trust does not waive or forfeit the right to take any action necessary to assure compliance with the terms of this Easement by any delay or prior failure of the Land Trust'ih,discovering a violation or initiating enforcement proceedings. The Land "I rust shall not be barred by any applicable statute of limitations in bringing any action to enforce the terms of this Easement. e. Acts Bevond Owner's Control The Land Trust may not bring an action against the Owner for any change to the Protected Property resulting from any of the following: • Causes beyond the Owner's control storm, natural deteifprption or the in • Reasonable actions or mitigate damage Actions under ei i causes. acts of third parties. ng`es caused by fire, flood, acts of third parties. conditions to prevent contractors are not This section does not preclude the Owner,or the Land Trust from recovering damages or bringing an action against any third party for trespass or other violation of their respective rights inthis Easement or in the Protected Property. f bight to Report In addition to other remedies, the Land Trust has the right to report any envirommental cO erns or conditions or any actual or potential violations of anyenvirorunental laws to appropriate regulatory agencies. g. Enforcement Rights of Others Nothing in this Easement is intended to create any right to enforce this Easement in any third party where no such right otherwise exists under this Easement or under law. 4.4. Limitation on Rights Nothing in this Easement gives the Land Trust the right or responsibility to exercise physical control over day -to -day operations on the Protected Property or to become involved in management decisions involving the use or disposal of hazardous substances or to otherwise become an operator of the Protected Property within the meaning of the Comprehensive Environmental Response, Compensation and Liability Act, the Minnesota Environmental Response and Liability Act, or other similar successor federal, state or local statutes or laws regarding responsibility for environmental conditions associated with contamination. 12 5. PUBLIC ACCESS. The public shall have the right to use the Protected Property and any trail established on the Protected Property for low- impact recreational and educational purposes, subject to the restrictions set out in this Easement and subject to any reasonable use restrictions established by the Owner. 6. DOCUMENTATION. The current uses of the Protected Property, the state of any existing improvements, and the specific Conservation. Values of the Protected Property that are briefly described in this Easement are more fully described in a sefiric property report on file at the office of the Land Trust. The Owner and the Land Trust acknowledge that this property report accurately represents the condition of the Protected Property at the time of this conveyance and may be used by the Land Trust in incinitoring future uses of the Protected Property, in documenting compliance with the terms of this Easement, and in any enforcement proceeding. This property report, ho*Gever, is not intended to preclude the use of other information and evidence to document the present condition of the Protected Property in the event of a future 7. GENERAL PROVISIONS. 7.1. Assignment This Easement may assigned or transferred by the Land `Trust only to a conservation entity defined as a qualified organization under Section 170(h) of the Internal Revenue Code and related regulations and as an aut,Mrized conservation easement holder under Minnesota law. Any future holder of this Easement shall have all of the rights 6priweyed to the Land Trust by this Easement. As a condition of any assignment or transfer, the Land Trust will require any future holder of this Easement to continue to carry out the conservation purpose of this Easement in perpetuity. The Land Trust will notify the Owner of any assignment within thirty (30) days after the assignment and will provide the Owner with the name and address of the new 7.2. Amendment Under appropriate circumstances, this Easement may be modified or amended. However, the Land Trust may in its sole discretion and exclusive judgment refuse'to agree to any amendment or modification of this Easement, including any amendment in which the following apply: • The amendment is inconsistent with the purposes of this Easement. • The amendment will impair or interfere with the Conservation Values of the Protected Property. • The amendment affects the perpetual duration of this Easement. • The amendment affects the validity of this Easement under Minnesota law or the status of the Land Trust under Sections 501(c)(3) and 170(h) of the Internal Revenue Code or successor or related law. 13 • The amendment creates or results in impermissible private benefit or private inurement as prohibited by 501(c)(3) of the Internal Revenue Code. 7.3 Any amendment or modification must be in writing and recorded in the same manner as this Easement. "Termination This Easement may be terminated or extinguished in whole or in part only as set out in this section. a. Change of Circumstances This Easement may circumstances arise that make continued use of consistent with the conservation purpose of this impractical. In this event, this judicial proceedings. b. Condemnation This EasementmAy betermi proper exercise of the power of eminent dom c. Proceeds upon Termination Following any Easement in whole or in'part, the Land Trust proceeds from any sale, exchange or involun Property. . or extinguished if Property in a manner possible or 9 only through or extinguished Dursuant to the on or extinguishment of this entitled to a portion of the iersion of the Protected The Landu n am sf's share of the proceeds shall be aount equal to the fair market value of this Easement at the time of the exting but not less than an f noum equal to the proportionate value that this Easement bears to the value of the Protected Property as a whole' at the time of this conveyance (excluding the value of any permitted improvements made after the conveyance of this The value of this Easement at the time of extinguishment or termination shall be calculated by the method ie4nired by the Internal Revenue Service for calculating an income tax deduction for a charitable donation of a conservation easement. use its share of any proceeds in a manner consistent with the of this Easement. 7.4. Warranties The current Owner represents and warrants as follows: a. The current Owner is the sole owner of the Protected Property in fee simple and has the right and ability to convey this Easement to the Land Trust. b. The Protected Property is free and clear of all rights, restrictions and encumbrances other than those subordinated to this Easement or otherwise specifically agreed to by the Land Trust. 14 c. The Protected Property is not subject to any pending claim, legal proceeding, foreclosure or other legal action affecting title to the Protected Property or the validity or enforceability of this Easement. 7.5. d. The current Owner has no actual knowledge of any use or release of hazardous waste or toxic substances on the Protected Property that is in violation of a federal, state, or local environmental law and will defend, indemnify and hold the Land Trust harmless against any claims of contamination from such substances including any such contamination claims related to the pipeline. responsibilities and shall bear all costs and ownership, and maintenance of the Protect a. Taxes The Owner shall pay all real 1 the Protected Property,including� ny created by this Easement. The Land outstanding taxes or assessments and the Owner. % ies. The Owner retains all iilities of any kind related to the use, "roperty. taxes and assessments levied against d against the interest of the Land Trust may, at its discretion, pay any mitled to reimbursement from b. Regulatory Compliance All activities or construction permitted by this Easement shall be undertaken in accordance with applicable federal state and local laws, regulations and ordinances andnothing in this Easement shall be construed to exempt the P�rotectcd Property or the�Swner from otherwise applicable laws or The injury oce Easement, for obtaining any required governmental permits. Owner shall de €end;/,gndemnify, and hold the Land Trust 1y and all costs or liability for any loss, damage, or personal on or related to the Protected Property or the existence of this t to the.extait attributable to the negligence of the Land Trust. will name the Land Trust as an additional insured on any ice policy carried by the Owner with respect to the e. Future Environmental Condition The Owner is solely responsible for Owner's use or release on the Protected Property of any hazardous or toxic substances as defined by the Comprehensive Environmental Response, Compensation and Liability Act, the Minnesota Environmental Response and Liability Act, or other similar successor federal, state or local law or regulation regarding responsibility for environmental conditions associated with contamination. The Owner shall take all steps necessary to assure any needed containment or remediation resulting from any release of such substance. 15 7.6. Notice and Approval Any notice or request for approval required by this Easement must be in writing and is subject to the following. C. a. Approval Requirements No activity requiring the prior approval of the Land Trust may proceed without the Land Trust's written approval as set out in this section. Approval of the Land Trust must be in writing to be effective. Failure of the Owner to receive approval from the Land Trust constitutes denial of the request. b. Delivery Any required notice or request for personally or sent by first class mail or other service to the appropriate party at the followii specified in writing): To the Owner: City of Cottage Grove 7516 80 1h Street South Cottage Grove, MN 55106 To the Land Trust: Minnesota Land Trust 2356 University Avenue St. Paul, MN 5511A for minimum, The e specified in this Ea t be delivered at least in question. must be delivered agnized delivery or other address ent, any required notice or days prior to the date proposed otice or request for approval must include sufficient information to to make an informed decision on whether any proposed activity is the terms and conservation purposes of this Easement. At a should include: a, nature, and scope of the proposed activity. -.d use, design, and location of any building, structure or nt. r any needed restoration of the Protected Property following • Any potential impact on the Conservation Values of the Protected Property. e. Approval Decisions The Land Trust may withhold its approval if it determines in its sole discretion that the proposal may impair or interfere with the Conservation Values of the Protected Property or is inconsistent with the terms or conservation purposes of this Easement or lacks sufficient information to allow the Land Trust to reach an informed decision. The Land Trust may condition its approval on the Owner's acceptance of modifications, which would, in the Land Trust's 16 judgment, make the proposed activity consistent with the Easement or otherwise meet any concerns. 7.7. 7. 7.9. If the Land Trust does not respond to the Owner's request for approval within 30 days of receipt of the Owner's written request, the Owner may send the request for approval again to the Land Trust by certified mail return receipt requested or other equivalent method. The Land Trust shall then have an additional 45 days to respond. Failure of the Land Trust to respond within the 45 days shall be deemed to be an approval so long as the activity in question is nof�speeifically prohibited and is not inconsistent with the limitations or restrictions on such activities in the Easement. _ Except as otherwise provided in this be in writing to be effective. Bindiny Effect This Easement created 4 Land Trust and its successors and assigns except as set out herein. This Easement shall run w terms of this Easement are Protected Property, all parties entitled to poss If at any the Land all or a.portion of the f deemed to merge with follows: otherwise, the following terms are defined as "Owner" includes, jointly and severally, the current owner or owners of the Protected Property identified above and their personal representatives, heirs, successors and assigns in title to the Protected Property. b. "Land Trust" includes the Minnesota Land Trust and its successors or assigns to its interest in this Easement. c. "Easement" includes both this instrument of conveyance and the property interest conveyed from the Owner to the Land Trust. Other terms may be defined throughout this Easement. Termination of Rights and Obligations A party's rights and obligations under this Easement terminate upon the transfer or termination of that party's interest in this or use RM Land Trust must immediately vested in the terminated or extirieuishe the Protected Property in perpetuity. The iforceabie against the current Owner of the to the Protected Proi&rty and all other ist or other holder of this Easement becomes the owner of merest in the Protected Property, this Easement shall not be underlying fee i nterest but shall remain in force and effect sd or extinguishedas set out herein. 17 Easement or the Protected Property, provided, however, that any liability for acts or omissions occurring prior to the transfer or termination will survive that transfer or termination. 7.10. Recording The Land Trust will record this Easement in a timely manner in the official records for the county in which the Protected Property is located. The Land Trust may re- record this Easement or any other documents necessary to protect its rights under this Easement or to assure the perpetual enforceability of this Easement. 7.11 7. 7.13. Interpretation This Easement shall be interpreted a. Controlling Law and Construction This of the State of Minnesota and construed; validity of specific provisions in conservation purposes and to the Chapter 84C. b. Severability A determination that any Easement is invalid shall not affect the future application. -m shall be governed by the laws le any ambiguities or questions of giving maximum effect to its and purposes of Minnesota Statutes , t ovision or specific application of this didity of the remaining provisions or any c. Captions Captions have bf reference and shall have no for convenience of construction. d. Future Economic Condition A change in the potential economic value of any use that is prohibited by or inconsistent with this Easement, or a change in any current or future uses of neighboring properties, shall not constitute a change in conditions that makes it impossible or iinpractical for continued use of the rroperty for conservation proses acid shall not constitute grounds for terminating the Easement. Additional Documents The Qw-ier agrees to execute or provide any additional documents reasonably needed by the Land Trust to carry out in perpetuity the provisions and the intent of this Easement, including, but not limited to any documents needed to correct any error or mutual mistake, legal description or title matter or to comply with any federal, state, or local law, rule or regulation. Entire Agreesie . This document sets forth the entire agreement of the parties with respect to this Easement and supersedes all prior discussions or understandings. 7.14. matures This Easement may be completed with the signatures of the parties to this Easement executed and notarized on separate pages which when attached to this document shall constitute one complete document. The remainder of this page has been intentionally left blank 18 IN WITNESS WHEREOF, the Owner has voluntarily executed this Conservation Easement on the day of State of MINNESOTA County of ss The foregoing instrument was 2011, by and the City Administrator, respectively, of in the State of Minnesota, on behalf of said , 2011 OWNER: CITY OF COTTAGE By: Mayor By: me this of the Mayor corporation Expires: 19 ACCEPTANCE The MINNESOTA LAND TRUST hereby accepts the foregoing Conservation Easement effective as of the day of 2011. MINNESOTA By: Director State of .MINNESOTA ) ss County of RAMSEY ) The foregoing instrument was 2011, by Kris Larson, the'Exe corporation under the laws of before me this day of of the Minnesota Land Trust, a non -profit nnesota, ¢ behalf of said corporation. Notary Public My Commission Expires: This document drafted Minnesota Land Trust 2356 University Avenue West St. Paul, MN 55114 20 Exhibit A Legal Description of the Protected Property The West ' /z of the Northeast Quarter of the Southeast Quarter in Section 7, Township 27, Range 21, Washington County, Minnesota, lying southerly of the following described lines: Commencing at the NW corner of said NE Y4 of the SE '`/4; thence S 009 1'26" W, along the West line of said NE ` / 4 of the SE' /, a distance of 540.00 feet to the point of beginning of the lines to be described; thence S 89 °48'34" E, a distance of 330.00 feet; th&nee S 48 °14'54" E, a distance of 87.16 feet; thence S 89 °48'42" E, a distance of 265.00 feet to the East line of the West % of said NE ` / 4 of the SE `/4 and there terminating. Except that part thereof described as follows: Commc of Pullman Avenue of St. Paul Park, Minnesota, exten line of the right of way of Old Highway 10 and 61; th( Northeasterly line (which has an assumed bearitq of I feet, more or less, to the point at which the said North said West %2 of the Northeast Quarter of the Southeast the tract of land to be described; thence ontinuing Nc line for a distance of 28.91 feet to a point inlaid Nort] along a line which is parallel to the said distance of 410.53 feet to a point; thence the South line of the said West `/2 of the 1 89 °22'25" W, along beginning, etng at the point at which the centerline ed Easterly intersects the Northeasterly ice Northwesterly along the said 45 °51'04 "W) for a distance of 271.59 ;rsects the South fine of the is the point of beginning of vesterly along the said Northeasterly ,terly fine, thence S 89 °55'04" E, man Avenue, extended Easterly, for a for a distance 421.13 feet to a point in of the Southeast Quarter; thence S 75.38 fe6t, more or less, to the point of line for a distance of 3 the SE 1 /4 DOT R/W PLAT NO. 82 -19. 21 Also except that part of said NE `. Exhibit B Property Map 22 Exhibit B Property Map ............ ... .:. :i ...�:. Forested YWallands N . Water � O Residential Development' " �• 'ComniercA8l Develaprnefrt -,. FIpeine Corridor ` 4 •: .. . '. .' te r. •• Nyp Gaaietl: Mach 24. Alf - •.. N Map Resource Information Site: Cottage Grove - Tract: City of Cottage Grove Fraeaed Fropedy. Sea nImes. Wl" Roods, orNe p Washington County - Twp. 27 N Rng. 21 W Sec.7 Scale: a l b Mawr Roads, 10 -F" Contours GeassbMs. Faresb, Nbodtam#. "RTT' Nkdards .Wntm. &ReadenllaLGanmarfsal i5avobRfaeM wasted 1" °300' by pity GlS Smites lm. U. a th maP.0'. and achiovAed9e amt C..*, GIs Services lnc. _ 300 150 0 S 300 and the Vli.oq land Tfast eanmt be h W Ma ror xemaey or MmaWH.1 �'C°�:"f6ri'ECFr'IL�' I nrrrvreaxorn provided. GISn Umis s"Wd mtE ceded W w esfabBSh Ie9N WW1 Www w.t nu .A«..w g.m }- nuf.+Tae.rsx Feet f s. or bwtions of irsuowmenh. � Y Forested YWallands N . Water � O Residential Development' " �• 'ComniercA8l Develaprnefrt -,. FIpeine Corridor ` 4 •: .. . '. .' te r. •• Nyp Gaaietl: Mach 24. Alf - •.. N Map Resource Information Site: Cottage Grove - Tract: City of Cottage Grove Fraeaed Fropedy. Sea nImes. Wl" Roods, orNe p Washington County - Twp. 27 N Rng. 21 W Sec.7 Scale: a l b Mawr Roads, 10 -F" Contours GeassbMs. Faresb, Nbodtam#. "RTT' Nkdards .Wntm. &ReadenllaLGanmarfsal i5avobRfaeM wasted 1" °300' by pity GlS Smites lm. U. a th maP.0'. and achiovAed9e amt C..*, GIs Services lnc. _ 300 150 0 S 300 and the Vli.oq land Tfast eanmt be h W Ma ror xemaey or MmaWH.1 �'C°�:"f6ri'ECFr'IL�' I nrrrvreaxorn provided. GISn Umis s"Wd mtE ceded W w esfabBSh Ie9N WW1 Www w.t nu .A«..w g.m }- nuf.+Tae.rsx Feet f s. or bwtions of irsuowmenh.