HomeMy WebLinkAboutItem 16 - MN Land Trust Conservation Easement (2) CONSERVATION EASEMENT
This is a CONSERVATION EASEMENT granted by the City of Lake Elmo, a political
subdivision under the laws of the State of Minnesota, (the"Owner")to the Minnesota Land
Trust, a non-profit corporation organized and existing under the laws of the State of Minnesota
(the"Land Trust".)
RECITALS:
A. OWNER. The Owner is the current owner of approximately 256 acres of real property
located in Washington County, Minnesota. That real property is more fully described below
as the"Protected Property."
B. 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, known to area residents as"Sunfish Lake Park,"consists of
approximately 173 acres of rolling forest land that includes a number of hardwood tree
species such as oak,maple, birch,and cherry. The Protected Property also consists of
approximately 2 acres of woodland, 25 acres of grassland, 20 acres of wetland, and 4 acres of
open water ponds. Sunfish Lake, which is classified by the Minnesota Department of Natural
Resources as a natural environment lake, covers approximately 11 acres of the eastern
portion of the Protected Property. Approximately 15 acres of the site consists of cultivated
fields currently planted in corn.
Two clustered residential developments with open space protected by conservation
easements are located adjacent to the Protected Property, contributing to a larger expanse of
open space.
Sunfish Lake Park is part of the Lake Elmo park system, and it has been used primarily as a
passive park for activities such as walking, hiking, cross country skiing, horseback riding,
solitude, and nature observation. The Protected Property has an unimproved divided access
road and parking area, barbeque grills, a portable toilet, and fencing. A power line traverses
the western portion of the Protected Property. No other structures or improvements currently
exist on the Protected Property.
C. 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(c)(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.
D. CONSERVATION VALUES. The Protected Property has the following natural, scenic and
open space qualities of significant importance:
• The Protected Property includes native upland aspen-oak and upland hardwood
forests, which provide habitat for a variety of species in greatest conservation need as
established by the Minnesota Department of Natural Resources in Tomorrow's
Habitat for the Wild and the Rare: An Action Plan for Minnesota's Wildlife,
Comprehensive Wildlife Conservation Strategy, 2006.
• The Protected Property also is a component of a regionally significant wildlife
corridor and project focus area identified by the Minnesota Department of Natural
Resources and the Metropolitan. Conservation Corridors Partnership, a collaboration
of public and private conservation entities funded in part by Minnesota Laws 2007,
Chapter 30, Section 2, Subd.4(c).
• The undeveloped shoreline along Sunfish Lake helps maintain the water quality and
near-shore aquatic habitat of the lake.
• The Protected Property provides outstanding opportunities for the public to
experience, appreciate and learn about the natural and scenic environment through
low-impact outdoor recreation and educational activities.
Collectively,these outdoor recreational and educational, natural, scenic and open space
qualities of the Protected Property comprise its"Conservation Values."
2
These Conservation Values have not been and are not likely to be adversely affected to any
substantial extent by the continued use of the Protected Property as described above or as
authorized below or by the use, maintenance, or construction of those structures and
improvements that presently exist on the Protected Property or that are authorized below.
E. CONSERVATION POLICY. Preservation of the Protected Property will further those
governmental policies established by the following:
• Minnesota Statutes Chapter I I6P, which establishes the Environmental and Natural
Resources Trust Fund, and Minnesota Laws 2008, Chapter 367, Section 2,
Subdivision 3(a),which provides funding from that Fund to accelerate programs for
the purposes of planning, restoring, and protecting important natural areas in the
metropolitan region,and portions of the surrounding counties.
• Minnesota Statutes Chapter 103A,which promotes protection of Minnesota's waters
and their adjacent lands and Minnesota Statutes Section 103A.206 in particular,
which recognizes the economic and environmental importance of maintaining and
enhancing the soil and water resources of this state and role of private lands in these
conservation efforts.
• Minnesota Statutes Section 103A.201,which specifically promotes the protection of
wetlands and.Minnesota Statutes Section 103A.202,which specifically declares that it
is in the public interest to preserve the wetlands of this state to conserve surface
waters, maintain and improve water quality, preserve wildlife habitat, reduce runoff,
provide for floodwater retention, reduce stream sedimentation, contribute to improved
subsurface moisture, and enhance the natural beauty of the landscape.
• 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, or open space use, protecting natural resources, and
maintaining or enhancing air or water quality.
• City of Lake Elmo 2030 Comprehensive Plan,which outlines a city-wide planning
policy to"evaluate available options to increase the long-term viability of its park
system in an environmentally sensitive manner"(Chapter 11, Page I1-5),and more
specifically, sets out goals to "have recreational and natural parks available to all
residents"and to "prevent use of parkland for non recreational or non-conserving
purposes." (Chapter IX, Page IX-2)
F. CONSERVATION INTENT. 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 future owners of the Protected Property and that conveys to
3
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 and
as an absolute and unconditional gift, 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 consists of the following rights, terms, and restrictions (the
"Easement"):
1. CONSERVATION PURPOSE. The purpose of this Easement is to preserve and protect in
perpetuity the Conservation Values of the Protected Property identified above by confining
the development, management and use of the Protected Property to activities that are
consistent with the preservation of these Conservation Values,by prohibiting activities that
significantly impair or interfere with these Conservation Values, and by providing for
remedies in the event of any violation of this Easement.
The terms of this Easement are specifically intended to provide a significant public benefit
by:
• Providing an opportunity for the public to learn about, experience, and enjoy the out-
of-doors in a significant and relatively undisturbed natural setting.
• Protecting natural habitat that contributes to a larger complex of protected forest and
wetlands that support a variety of wildlife and plants,both terrestrial and aquatic.
• Protecting the water quality and near-shore aquatic habitat of Sunfish Lake by
restricting development of the lakeshore of the Protected Property.
2. LAND USE RESTRICTIONS. Any activity on or use of the Protected Property that is
inconsistent with the purposes of this Easement is prohibited.
This prohibition specifically includes any intrusion or future development that would.
interfere with the essential scenic quality of the Protected Property or the visual enjoyment of
the open and natural character of the Protected Property by the general public.
Except as specifically permitted in section 3 below and without limiting the general
prohibition above, restrictions imposed upon the Protected Property expressly include the
following:
4
2.1. Industrial and Commercial Activity. No industrial or commercial use of the Protected
Property is allowed except for that agricultural use, forest or habitat management, or
minimal commercial recreational. use specifically permitted in section 3 below.
2.2. Agricultural Use. No agricultural use of the Protected Property is allowed except as
specifically permitted in section 3 below.
2.3. Residential Development. No residential use or development of the Protected
Property is allowed.
2.4. Rights of 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
of the Land Trust under the provisions of section 7.7 of this Easement. This provision
does not affect any rights of way existing at the time of conveyance.
The Owner may, however, grant an easement to the Commissioner of the Minnesota
Pollution Control Agency as needed to permit the location, operation and
maintenance of a monitoring well or wells on the Protected Property.
2.5. Division of the Protected Property. 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 as separate parcels, or is
treated as separate parcels for property tax or other purposes.
This provision does not, however, prohibit:
The division of the Protected Property when a portion of the Protected
Property is being conveyed to a conservation organization defined in section
7.1 below.
• The correction or adjustment of boundary lines to resolve an ownership
dispute.
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 transferred to any other property or used to obtain any
regulatory mitigation credits.
2.7. 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 authorized in section 3 or as set forth
below:
5
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 but do not include communication towers, wind turbines, or
similar structures without the prior approval of the Land Trust.
Permitted utility systems and facilities shall be installed or constructed with
minimal grading and disturbance to vegetation. Following installation or
construction, the surface shall be restored in a timely manner to a condition
consistent with the purposes of this Easement.
b. Signs. No billboards or other signs may be placed or erected on the Protected
Property except for small signs for informational or interpretive purposes. These
permitted small signs include signs necessary for monitoring, safety, and security
purposes in conjunction with those recorded easements and agreements between
the Owner and the Minnesota Pollution Control Agency.
Additionally, the Owner may also construct and maintain a park entry monument
and signs as permitted in section 3.5 below. With the Owner's permission.,the
Land Trust may place signs on the Protected Property identifying the land as
protected.
c. Roads and Parking Areas. The existing park access road and parking area may be
maintained and improved but may not be widened, enlarged, or relocated without
the prior written approval of the Land Trust.
No other roads or paved areas may be established or constructed on the Protected
Property without the prior written approval of the Land Trust.
d. Trails. Unpaved paths or foot trails,including necessary footbridges and
boardwalks, may be established and maintained for non-motorized recreational.
uses. Paved trails may be established.and maintained only within Area 2 of the
Protected Property, which is generally depicted on the Property Map attached as
Exhibit B. Paved trails may be allowed in Area 1 of the Protected Property, as
generally depicted on the Property Map, only as necessary to meet requirements
of the American with Disabilities Act and only with advance written approval
from the Land Trust. Trails shall be established, maintained and used in a manner
that does not result in significant erosion or have an adverse impact on the natural
and scenic quality of the Protected Property.
e. Fences. Fences may be constructed,maintained, improved, replaced or removed
to mark boundaries, to secure the Protected Property, or as needed in carrying out
activities permitted by this Easement and by recorded documents between the
Owner and the Minnesota Pollution Control Agency, including those documents
specifically referenced in section 7.5.
6
f. Outdoor Lighting. In order to minimize sky glow or light pollution originating
from the Protected Property, no permanent outdoor lighting is permitted within
Area 1 of the Protected Property. Any outdoor light fixtures within Area 2 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,junit, other unsightly material or hazardous or toxic substances may be
dumped or accumulated on.the Protected Property. This does not prohibit burning or
composting of excess brush or other plant material resulting from activities permitted
by this easement.
2.9. Mining. No mining, drilling,exploring for,or removing any minerals, sand, gravel,
rock, or fossil fuels from the Protected Property is allowed.
2.10. Topography and Surface Alteration. No alteration or change in the topography or the
surface of the Protected Property is allowed. This includes no ditching,draining or
filling and no excavation or removal of soil or other material,except as incidental to
activities or uses specifically pennitted by this Easement.
Any permitted alteration shall be undertaken with minimal grading and disturbance to
vegetation and with the surface restored in a timely manner to a condition consistent
with the purposes of this Easement.
2.11. Water. No alteration or manipulation of natural watercourses, lakes, shorelines,
wetlands or other surface or subsurface bodies of water or creation of new wetlands
or water bodies is allowed except to restore or enhance wildlife habitat or native
biological communities or to improve or enhance the function and quality of existing
wetlands or water bodies. Any alteration or creation of wetlands or water bodies
must be undertaken in accordance with a habitat management plan approved by the
Land Trust under section 3 below.
No activities on or uses of the Protected Property that cause significant erosion or are
seriously detrimental to water quality or purity are allowed.
2.12. 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 agricultural use and forest or habitat management as
specifically permitted in section 3 below.
b. As reasonably required to construct and maintain permitted buildings, structures,
roads,trails and other permitted improvements and provided that vegetation shall
be restored by the Owner following any construction to a condition consistent
with the purpose of this Easement.
7
c. As reasonably required to prevent or control insects,noxious weeds, invasive
vegetation, disease, fire, personal injury, or property damage.
d. Landscaping in areas immediately adjacent to permitted buildings, within the
divided entry road corridor, or as specifically authorized in section 3 below.
2.13. Vehicles. Motorized vehicles may not be used on the Protected Property except on
roads or parking areas permitted under this Easement or in conjunction with
construction and maintenance of permitted buildings, structures, roads,trails, or other
improvements, forest or habitat management, agricultural use, or in conjunction with
Minnesota Pollution Control Agency permitted activities including those permitted
under the recorded documents specifically referenced in section 7.5 below. Use of
motorized vehicles shall not result in significant erosion or have an adverse impact on
the natural and scenic quality of the Protected Property.
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 would adversely impact the
Conservation Values of the Protected Property. Additionally, the Owner must give notice to
the Land Trust before exercising any reserved right that might have an adverse impact on 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:
a. Any conveyance or encumbrance of the Protected Property is subject to this
Easement.
b. The Owner will reference or insert the terms of this Easement in any deed or other
document by which the Owner conveys title to the Protected Property. The
Owner will also specify to what extent reserved rights have been exercised, if at
all, and are no longer available for use by the new owner and which reserved
rights are specifically allocated to the property being conveyed in accordance with
other provisions of this Easement.
c. The Owner will notify the Land Trust of any conveyance within fifteen (15)days
after closing and will provide the Land Trust with the name and address of the
new owner and a copy of the deed transferring title.
d. If the Protected Property is owned by a trust, business entity or any common or
jointly held ownership, the Owner shall designate a representative authorized to
receive notice on behalf of the owner and provide the Land Trust with the name
and address of the designated representative. The Owner shall notify the Land
8
Trust of any change in the designated representative and provide the Land Trust
with the new name,address and other contact information.
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. Agricultural Use. Agricultural use of the Protected Property is limited to only that
area designated as Cultivated Land on the Property Map attached as Exhibit B. if this
area is restored to forest or grassland, then no further agricultural use is permitted.
3.3. Forest and 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 restoration or habitat management plan approved in writing by the
Land Trust. The Owner may remove timber and other wood products and otherwise
manage the vegetation on the Protected Property in accordance with this approved
plan.
3.4. Recreational and Educational Uses, The Protected Property may be used for hiking,
cross-country skiing, horseback riding, 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.
3.5. Recreational and Educational Structures. Minor rustic structures such as tents,trail
barriers, boardwalks, overlook decks, footbridges, benches, birdhouses, and
informational kiosks may be placed on the Protected Property in conjunction with
permitted recreational and educational activities.
Additionally,the Owner may choose to use and develop Area 2 of the Protected
Property, or a portion of it, as an educational, outdoor recreational,nature observation
or interpretive center. Such use must be consistent with and must not interfere with
the Conservation Values and purposes of this Easement. The size, location, and
characteristics of the buildings and structures, as well as all necessary utilities,
driveways, parking areas, and all other improvements associated with the facility or
the uses described in this section, including a park entry monument and signs, must
be in accordance with a park concept plan developed by the Owner and approved in
writing by the Land Trust. All buildings, structures and improvements must be
designed and constructed so as not to detract from the natural and scenic character of
the Protected Property. Review and written approval of architectural plans by the
Land Trust is required prior to commencing construction.
The Owner will request and obtain approvals and give the Land Trust notices as set
out in section 7.7 of this Easement before beginning any construction permitted
under this section.
9
4. LAND TRUST'S RIGHTS AND REMEDIES. In order to accomplish the purposes of this
Easement to preserve and protect the Conservation Values of the Protected Property, the
Land Trust has the following rights and remedies:
4.1. Right to Enter. The Land Trust has the right to enter the Protected Property at
reasonable times 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
Easement.
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 completed under this provision will be at the Owner's
expense.
d. To otherwise exercise its rights under this Easement.
4.2. 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 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 shall not apply if,
in the sole discretion of the Land Trust, immediate judicial action is necessary to
prevent or mitigate significant damage to the Conservation Values of the
Protected Property or if reasonable, good faith efforts to notify the Owner are
unsuccessful.
b. Remedies. In enforcing this Easement, the Land Trust has the right to:
• Temporary 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,
These remedies are cumulative and are available without requiring the Land Trust
to prove actual damage to the Conservation Values of the Protected Property.
10
The Land Trust 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.
c. Costs of Enforcement. The Owner shall be responsible for all reasonable costs
incurred by the Land Trust in enforcing this Easement, including without
limitation costs of suit,attorneys' fees, and expenses related to restoration of the
Protected Property. If,however,the Owner ultimately prevails in a judicial
enforcement action, each party shall be responsible for its own costs and
attorneys' fees.
d. Discretionary Enforcement. 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 in discovering a
violation or initiating enforcement proceedings. The Land Trust shall not be
barred by any applicable statute of limitations in bringing any action to enforce
the term of this Easement.
e. Acts Beyond Owner's Control. The Land Trust may not bring an action against
the Owner for any change to the Protected Property resulting from:
• causes beyond the Owner's control such as changes caused by fire, flood,
storm, natural deterioration or the unauthorized acts of third parties, or
• reasonable actions taken in good faith under emergency conditions to prevent
or mitigate damage resulting from such causes.
Actions by the Owner's lessees, agents, employees or contractors are not
considered unauthorized acts of third parties.
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 in this Easement or in the Protected Property.
f. Right to Report. In addition to other remedies, the Land Trust has the right to
report any environmental concerns or conditions or any actual or potential
violations of any environmental 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.
li
4.3. 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.
5. PUBLIC ACCESS AND USE. 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 will be more fully described in a property report on file at
the office of the Land Trust. The Owner and the Land Trust acknowledge that this property
report will accurately represent the condition of the Protected Property at the time of this
conveyance and may be used by the Land Trust in monitoring future uses of the Protected
Property, in documenting compliance with the terms of this Easement and in any
enforcement proceeding. This property report, however, 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 controversy.
7. GENERAL PROVISIONS.
7.1. Assignment. This Easement may be assigned or transferred by the Land Trust only to
a conservation organization defined as a qualified organization under Section 170(h)
of the Internal Revenue Code and related regulations and as an authorized
conservation easement holder under Minnesota law. Any future holder of this
Easement shall have all of the rights conveyed 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 purpose of this Easement in
perpetuity.
The Land Trust will notify the Owner of any assignment within thirty(30)days of the
assignment and will provide the Owner with the name and address of the new holder.
7.2. Amendment. Under appropriate circumstances, this Easement may be modified or
amended. However, no amendment or modification will be allowed if, in the sole and
exclusive judgment of the Land Trust any of the following apply:
• The amendment does not further the purposes of this Easement.
12
• The amendment will adversely impact 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 Cade.
Any amendment or modification must be in writing and recorded in the same manner
as this Easement.
7.3. Termination. This Easement may be terminated or extinguished only as follows:
• The Owner and the Land Trust recognize that circumstances may arise that make
continued use of the Protected Property in a manner consistent with the purpose
of this Easement impossible or impractical. In this event, this Easement may be
extinguished through judicial proceedings.
• This Easement may be extinguished pursuant to the proper exercise of the power
of eminent domain.
7.4. Proceeds. Following any extinguishment or termination of this Easement in whole or
in part,the Land Trust shall be entitled to a portion of the proceeds from any sale,
exchange or involuntary conversion of the Protected Property.
The Land Trust's share of the proceeds shall be an amount equal to the fair market
value of this Easement at the time of the extinguishment but not less than an amount
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 Easement.)
"The value of this Easement shall be calculated by the method required by the Internal
Revenue Service for calculating an income tax deduction for the charitable donation
of a conservation easement.
The Land Trust will use its share of any proceeds in a manner consistent with the
purpose of this Easement.
7.5. Warranties. The current Owner represents and warrants as follows:
a. The 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.
13
c. A portion of the Protected Property is subject to the terms and restrictions of the
following documents:
• Landfill Cleanup Agreement by and between Washington County,
Ramsey County, the City of Lake Elmo and the Commissioner of the
Minnesota Pollution Control Agency dated November 21, 1995,recorded
December 14, 1995, as Document Number 866611;
• Easement in favor of the State of Minnesota dated November 13, 1995,
recorded.December 14, 1995,as Document Number 866615;and
• Declaration of Restrictions and Covenants dated November 13, 1995,
recorded December 14, 1995,as Document Number 866619.
d. The 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.
7.6. Ownership Responsibilities, Costs and Liabilities. The Owner retains all
responsibilities and shall bear all costs and liabilities of any kind related to the use,
ownership, and maintenance of the Protected Property.
a. Taxes. The Owner shall pay all real estate taxes and assessments levied against
the Protected Property, including any levied against the interest of the Land Trust
created by this Easement. The Land Trust may, at its discretion, pay any
outstanding taxes or assessments and shall then be entitled to reimbursement from
the Owner.
b. Regulatory Iatory Compliance. All activities or construction permitted by this Easement
shall be undertaken in accordance with applicable federal, state and local laws,
regulations and ordinances and nothing in this Easement shall be construed to
exempt the Protected Property or the Owner from otherwise applicable laws or
regulations.
The Owner is solely responsible for obtaining any required governmental permits.
c. Indemnity. The Owner shall defend, indemnify, and hold the Land Trust
harmless from any and all costs or liability for any loss, damage, or personal
injury occurring on or related to the Protected Property or the existence of this
Easement, except to the extent attributable to the negligence of the Land Trust.
d. Insurance. The Owner will name the Land Trust as an additional insured on any
general liability insurance policy carried by the Owner with respect to the
Protected Property.
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
14
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.
7.7. Notice and Approval. Any notice or request for approval required by this Easement
must be in writing and is subject to the following:
a. Delivery. Any required notice or request for approval must be delivered
personally or sent by first class mail or other nationally recognized delivery
service to the appropriate party at the following addresses (or other address
specified in writing):
To the Owner:
City of Lake Elmo
3800 Laverne Avenue N.
Lake Elmo,MN 55042
To the Land Trust:
Minnesota Land Trust
2356 University Avenue West
St. Paul, MN 55114
b. Timing. Unless otherwise specified in this Easement,any required notice or
request for approval must be delivered at least 30 days prior to the date proposed
for initiating the activity in question.
c. Content. The notice or request for approval must include sufficient information to
allow the Trust to make an informed decision on whether any proposed activity is
consistent with the terms and purposes of this Easement. At a minimum,this
should include:
• The location, nature, and scope of the proposed activity.
• The proposed use, design, and location of any building, structure or
improvement.
• The potential impact on the Conservation Values of the Protected Property.
d. Approval. The Land Trust may withhold its approval if it determines that the
proposal is inconsistent with the terms or 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 judgment, make the proposed
activity consistent with the Easement or otherwise meet any concerns.
15
Approval of the Land Trust must be in writing to be effective.
7.8. Binding,Effect. This Easement creates a property right immediately vested in the
Land Trust and its successors and assigns that cannot be terminated or extinguished
except as set out herein.
This Easement shall run with and burden the Protected Property in perpetuity. The
terms of this Easement are binding and enforceable against the current Owner of the
Protected Property, all successors in title to the Protected Property and all other
parties entitled to possess or use the Protected Property.
If at any time the Land Trust or other holder of this Easement becomes the owner of
all or a portion of the fee interest in the Protected Property, this Easement shall not be
deemed to merge with the underlying fee interest but shall remain in force and effect
unless otherwise terminated or extinguished as set out herein.
7.9. Definitions. Unless the context requires otherwise, the term-'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. The term "Land Trust"includes the Minnesota Land Trust and its
successors or assigns to its interest in this Easement.
7.10. 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
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.
7.11. 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.
7.12. Interpretation. This Easement shall be interpreted as follows.
a. Controlling Lawand Construction. This Easement shall be governed by the laws
of the State of Minnesota and construed to resolve any ambiguities or questions of
validity of specific provisions in favor of giving maximum effect to its
conservation purposes and to the policies and purposes of Minnesota Statutes
Chapter 84C.
b. Severability. A detennination that any provision or specific application of this
Easement is invalid shall not affect the validity of the remaining provisions or any
future application.
16
c. Captions. Captions have been inserted in this document solely for convenience of
reference and shall have no effect upon interpretation or construction.
d. Future Economic Condition. In conveying this Easement, the Owner has
considered the possibility that uses of the Protected Property prohibited by this
Easement may in the future become more economically valuable than uses
permitted by this Easement and that neighboring properties may be put entirely to
such prohibited uses. Such changes alone are not deemed to be circumstances
justifying the extinguishment of this Easement as otherwise set forth above.
7.13. Additional Documents. The Owner 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 legal description or title matter or to comply with
any federal, state, or local law, rule or regulation.
7.1.4. Entire Agreement. This document sets forth the entire agreement of the parties with
respect to this Easement and supersedes all prior discussions or understandings.
7.15, Signatures. 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.
17
IN WITNESS WHEREOF,the Owner has voluntarily executed this Conservation Easement on
the day of dUX%g,,, , 2009.
OWNER:
CITY OF LAKE EL
By:
Mayor
By:
jCityAd istrator
State of MINNESOTA }
Ss
County of
The foregoing instrument was acknowledged before me this I day of�� 2009,by
Dean Johnston and Craig Dawson,the Mayor and the City Administrator, respectively,of the
City of Lake Elmo, a municipal corporation in the State of Minnesota, on behalf of the City.
Notary Public
My Commission Expires:
SARAH
TPOM
M EN
Not icarePubiy
Minnesota
E J't' 31,2010
ih
ACCEPTANCE
The MINNESOTA LAND TRUST hereby accepts the foregoing Conservation Easement
effective as of the +h day of eTu_y\,L, , 2009.
MINNESOTA LAND TRUST
By. - -
Title:
State of MINNESOTA )
) ss
County of )
The foregoing instrument was acknowledged before me this& day of C_ ,
2009,by Jane Prohaska, the President of the Minnesota Land Trust, a non-profit corporation
under the laws of the State of Minnesota, on behalf of said corporation.
Notary Public
My Commission Expires:
SARAH STROMMEIN
iVotary Public
LMCOmnmlission
Minnesota
Ex Tres Janua 34,2Al n
This document drafted by:
Minnesota Land Trust
2356 University Avenue West
St. Paul,MN 55114
19
Exhibit A
Legal Description of the Protected Property
The Northwest Quarter of the Northwest Quarter(NW 1/4 of NW 1/4)of Section Fourteen (14),
Township Twenty-nine (29), Range Twenty-one (21), and the West Thirty-three (33) feet of the
Southwest Quarter of the Northwest Quarter (SW '/4 of NW 1/4) of Section Fourteen (14),
Township Twenty-nine (29),Range Twenty-one (21), Washington County, Minnesota.
AND
That part of the Northeast quarter of the Northwest quarter of Section 15,Township 29,Range
21, Washington County, Minnesota, described as commencing at the Northeast corner of said
Northeast quarter of Northwest quarter; thence South 0° 51' 45"East, assumed bearing, along
the East line thereof, 501.27 feet to the South line of the North 30 acres of said Northwest quarter
and to the actual point of beginning of the land to be hereinafter described;thence South 890 01'
54" West along said South line of North 30 acres 800 feet; thence South 0° 51' 45"East 734.30
feet;thence North 890 0 1' 54"East 800 feet to the East line of said Northeast quarter of the
Northwest quarter; thence North 0° 5 1' 45" West along said East line 734.30 feet to the actual
point of beginning.
AND
The Northwest quarter of the Northeast quarter, the Northeast quarter of the Northeast quarter,
the Southwest quarter of the Northeast quarter, the North three-quarters of the Southeast quarter
of the Northeast quarter and that part of the East 87 feet lying South of the North three-quarters
of the Southeast quarter of the Northeast quarter all in Section 15,Township 29, Range 21.
AND
The east 87 feet of that part of the Southeast quarter of Section 15,Township 29,Range 21, lying
Northerly of the Northerly right of way line of State Highway#212, subject to the right of way
Stillwater Lane (formerly State Highway#212).
AND
The Southwest Quarter of the Northeast Quarter of the Northwest Quarter(SW 1/4 of NE 1/4 of
NW 1/4)of Section Fourteen(14), Township Twenty-nine (29)North, Range Twenty-one(21)
West, Washington County, Minnesota.
AND
The North Three(3)rods of the Northwest Quarter of the Southeast Quarter of the Northwest
Quarter (NW 14/of SE 1/4 ofNW1/4) of Section Fourteen (14),Township Twenty-nine (29),
Range Twenty-one (21), Washington County, Minnesota.
20
AND
The South Forty(40) acres of Government Lot Five(5), Section Ten (10) and the Southeast
Quarter of the Southwest Quarter (SE '/4 of SW '/4)of Section Ten (10). AND the North Thirty
(30) acres of the North one-half of the Northwest Quarter (N 1/2 of NW 1/4) of Section Fifteen
(15),all in Township Twenty-nine (29)North of Range Twenty-one (21) West, containing 110
acres more or less.
EXCEPT:
All that part of the South 40 acres of Government Lot 5, Section 10, and the Southeast Quarter of
the Southwest Quarter of Section 10, and the North 30 acres of the North One-Half of the
Northwest Quarter of Section 15, all in Township 29 North, Range 21 West, Washington
County, Minnesota,described as follows:
Beginning at the northwest corner of said Section 15,thence South 00 degrees, 18 minutes, 30
seconds West, bearings are based on the Washington County Coordinate System NAD83, along
the west line of said Section 15, a distance of 501.27 feet to the south line of said North 30 acres
of the North One-Half of the Northwest Quarter of Section 15, thence North 89 degrees, 51
minutes, 00 seconds East, along said south line, a distance of 1808.59 feet,thence North 00
degrees, 02 minutes, 32 seconds West and parallel with the east line of said Northwest Quarter of
Section 15, a distance of 501.26 feet to the north line of said Section 15, thence South 89
degrees, 51 minutes, 00 seconds West, along said north line a distance of 105.52 feet,thence
North 00 degrees, 53 minutes, 21 seconds West and parallel with the west line of said Section 10,
a distance of 650.00 feet, thence South 89 degrees, 51 minutes,00 seconds West and parallel
with the south line of said Section 10, a distance of 200.00 feet,thence North 00 degrees, 53
minutes,21 seconds West and parallel with the west line of said Section 10, a distance of 656.24
feet,to a point on the north line of said Southeast Quarter of the Southwest Quarter of Section
10, thence South 89 degrees, 45 minutes,24 seconds West, along said north line, a distance of
193.17 feet to the northwest corner of said Southeast Quarter of the Southwest Quarter, thence
North 00 degrees, 42 minutes, 39 seconds West, along the east line of said Government Lot 5, a
distance of 29.52 feet to the northeast corner of said South 40 acres of Government Lot 5,thence
South 89 degrees, 51 minutes,00 seconds West, along the north line of said South 40 of
Government Lot 5,a distance of 706.92 feet,thence South 00 degrees, 53 minutes, 21 seconds
East and parallel with the west line of said Section 10, a distance of 200.00 feet,thence South 50
degrees, 54 minutes,08 seconds West, a distance of 127.25 feet,thence South. 89 degrees, 51
minutes, 00 seconds West and parallel with the north line of said South 40 acres of Government
Lot 5, a distance of 500.00 feet to the west line of said Section 10, thence South 00 degrees, 53
minutes, 21 seconds East along the west line of said Section 10, a distance of 1055.45 feet to the
point of beginning, containing 65.9 acres,more or less.
AND ALSO EXCEPT:
All that part of the South 40 acres of Government Lot 5, Section 10,Township 29 North,Range
21 West, Washington County,Minnesota,described as follows:
21
Commencing at the southwest corner of said Section 10, thence North 00 degrees, 53 minutes,21
seconds West along the west line of said Section 10, a distance of 1055.45 feet to the point of
beginning, thence continuing North 00 degrees, 53 minutes, 21 seconds West along the west line
of said Section 10, a distance of 280.00 feet to the northwest corner of said.South 40 acres of
Government Lot 5,thence North 89 degrees, 51 minutes,00 seconds East along the north line of
said South 40 acres of Government Lot 5, a distance of 600.00 feet,thence South 00 degrees, 53
minutes, 21 seconds East and parallel with the west line of said Section 10, a distance of 200.00
feet, thence South 50 degrees, 54 minutes, 08 seconds West, a distance of 127.25 feet, thence
South 89 degrees, 51 minutes, 00 seconds West and parallel with the north line of said South 40
acres of Government Lot 5, a distance of 500.00 feet to the point of beginning, containing 3.8
acres,more or less.
22
.: .. ....lam. .......
r jol IF
Cc
IS
IsII
EJ
7�3I fly"/
•��'^_ ^�� .� �- � '7Y, 0b � F{ 9e Sara t . .. .... •�i '+!^�
cc
W 3-• l x L ice..
:�}fir. �,,,, � } '�� i � �J)' ���.'.' .•.
s50 a [`•.� � '•'
r _
. . y. a .l� -._ ...... ri.+ h ✓ "c
• t } s �
.:.xzn, k
E.
—IQ
u R c Ic y
fo
a m In
o
{ •�'� \ C
!1 CP- C n, [1' .f.L 0 LL.
Win
fir
It
i"�