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8.1. SR 11-05-2012 Elk REQUEST FOR ACTION River TO ITEM NUMBER Mayor and City Council 8.1 AGENDA SECTION MEETING DATE PREPARED BY General Business November 5, 2012 Cal Portner, City Administrator ITEM DESCRIPTION REVIEWED By Bailey Point REVIEWED BY ACTION REQUESTED Authorize,by motion,the Mayor and City Administrator to execute the purchase agreement,DNR Funding Grant, amended driveway easement agreement,and access agreement for the purpose of purchasing the property from John and Nancy Babcock, known as Bailey Point. BACKGROUND/DISCUSSION Staff and counsel have held numerous discussions with Mr.John Babcock, representatives of the Minnesota Land Trust, and Mr. Eric Toth regarding the purchase of the 26-acre Bailey Point property in Elk River. Our attorneys have drawn up a purchase agreement and thoroughly reviewed the easement documents. We tentatively anticipate a closing on the property at 9:30 a.m., on November 20, 2012. Bailey Point The city has held two community meetings regarding the purchase and use of the property and have successfully applied for and received a grant from the DNR to offset the purchase price. Conservation Easement As a part of the land sale, the Babcock's are having a conservation easement placed over the land to ensure it is maintained in a natural state with only passive public use. Staff and representatives of the Minnesota Land Trust have collaborated on the easement to ensure it meets their requirements for a protected property,yet maintains some degree of potential options for future use by the city. Some of the items added to the easement include: 1) Ability to install a permanent parking lot 2) Ability to install security lighting 3) Ability to install ADA-acceptable trails, benches and signage 4) Ability to install trash and recycling receptacles 5) Ability to build rain gardens as necessary for runoff 6) Ability to build a canoe/kayaking landing and access road Toth Access Easement One of the abutting property owners, Eric Toth,previously held an easement for access to his property. The easement language was vague and Mr. Toth requested to clarify a number of points. The following N:\Public Bodies\City Council\Council RCA\Agenda Packet\11-05-2012\Bailey Point PA.docx 11`4A U R E items were agreed upon and approved by the Land Trust,which have a very limited impact on the property and primarily outlines what has been the past relationship: 1) Moved the southerly boundary south approximately three feet to include the existing driveway, which breached the existing easement area. 2) Outlines that the upkeep,maintenance, and improvement of the driveway area within the easement will be by the easement holder. The city will not be responsible for plowing,patching, or grading the driveway. 3) Allows the easement holder to maintain the fence and improve the fence with city approval. Babcock Access Agreement The owners asked to preserve an access point through the property. The city did not desire to include a second access easement primarily because it is unknown at this time where access would initiate and to appease the concerns of neighboring property owners. The city did agree to perfect a limited access agreement which is consistent with how the city would respond to residents elsewhere who needed to traverse city property for exceptional circumstances. FINANCIAL IMPACT The property will be purchased with funding from the city,DNR Grant, and the Minnesota Land Trust. A portion of the grant funding will be used to restore wetlands disturbed at Lion's Park,per agreement with the DNR. ATTACHMENTS • Purchase Agreement • Minnesota Land Trust Easement • Driveway Access Easement Action Motion by Second by Vote Follow Up N:\Public Bodies\City Council\Council RCA\Agenda Packet\11-05-2012\Bailey Point PA.docx M.S.B.A.Real Property Form No. 30 (2008) Minnesota Vacant Lot Purchase Agreement--Single Dwelling PURCHASE AGREEMENT/PAGE 1 of 8 MINNESOTA VACANT LOT PURCHASE AGREEMENT --SINGLE DWELLING ©Copyright 1997,2008 by Minnesota State Bar Association,Minneapolis,Minnesota. BEFORE YOU USE OR SIGN THIS CONTRACT, YOU SHOULD CONSULT WITH A LAWYER TO DETERMINE THAT THIS CONTRACT ADEQUATELY PROTECTS YOUR LEGAL RIGHTS. Minnesota State Bar Association disclaims any liability arising out of use of this form. t 1. PARTIES. This Purchase Agreement is made on by and between 2 John E.Babcock and Nancy K.Babcock [marital status]husband and wife 3 of[seller's address] 223 Nile Place,Elk River,MN 55330 SELLER,and 4 the City of Elk River �o{ (�( jy�(�X ) d(�w� ¢ J 5 of[buyer's address]13065 Orono Parkway,Elk River,MN 55330 BUYER. 6 7 2. OFFER/ACCEPTANCE. Buyer offers to purchase and Seller agrees to sell real property legally described as A 9 See attached as Exhibit A. Also attached is Exhibit B,Property Map. 10 II 12 13 14 [Property Tax Identification Number or Tax Parcel Number 1 15 16 located at ,City of Elk River 17 County of Sherburne State of Minnesota,Zip Code 55330 19 19 3.ACCEPTANCE DEADLINE.The acceptance date of this Purchase Agreement is the date it is delivered by the last party signing to the other party. 20 This offer to purchase,unless accepted sooner,shall be void at 11:59 A.M.,(date) ,and in such event all earnest money shall be 21 refunded to Buyer. 22 23 4.PERSONAL PROPERTY AND FIXTURES INCLUDED IN SALE.The following items of personal properly and fixtures owned by Seller and currently 24 located on the property are included in this sale[Strike out items not included].' garden bulbs,plants,shrubs,trees,fences,gates,culverts,survey 25 monuments,and also the following property:None 26 27 28 Upon delivery of the Deed,Seller shall also deliver a Warranty Bill of Sale for the above personal property. [Check the box if the following provision 29 applies to this Purchase Agreement] =Seller shall use M.S.B.A.Real Property Form No. 90(2005),Warranty Bill of Sale. 30 31 5. PRICE AND TERMS. The price for the real and personal property included in this sale is 32 Ninety-nine Thousand One Hundred Fifty and 00/100------ ----------------------------------------------------- Dollars($99,150.00---------------), 33 which Buyer shall pay as follows: 34 35 Earnest money of$1,000.00-------------------------------- by[CASH,CHECK,NOTE-state which]check payable to 36 [select one.] 37 ®x Seller,to be deposited and held by Seller(and may be commingled with Sellers other funds)pending closing, 38 Seller's lawyer,to be deposited and held in the lawyers trust account pending closing, 39 Sellers broker,to be deposited or held by broker according to the requirements of Minnesota Statutes, 40 0 Other(describe how the earnest money will be held] 41 receipt of which is hereby acknowledged(to be deposited the next business day after acceptance in trust account of listing broker,unless otherwise 42 specified in writing)and$98,150.00---------------------------------- cash on ,the DATE OF CLOSING,2rtl- 4J 44 45 6. DEED/MARKETABLE TITLE. 46 A. Upon performance by Buyer,Seller shall execute and deliver a Warranty Deed,joined in by spouse, 47 if any,conveying marketable title of record,subject to: 48 (1) Building and zoning laws,ordinances,state and federal regulations;and 49 (2) The lien of real property taxes and the lien of special assessments and interest due thereon,if any,payable in the year of closing which by 50 the terms of this Purchase Agreement are to be paid or assumed by Buyer. 51 B. Seller proposes to Buyer that Seller's good and marketable title will be delivered to Buyer at closing subject to the following title issues: 52 53 [Check 1 if applicable.] 54 (1) X Encumbrances,easements,covenants,conditions,restrictions,a declaration(without an association),and reservation of mineral rights 55 by the St ateofMinnesota,asdisclosedinM.S.B.A.RealPropertyFormNo.19,ADDENDUMTOPURCHASEAGREEMENT:TITLEISSUES 56 (2005),attached as a part of this Purchase Agreement. 57 (Check(2),if applicable J 5e (2) n A Declaration of covenants,conditions,and restrictions with an association in a planned community,condominium,or other common 59 interest ownership community,as disclosed in M.S.B.A.Real Property Form No,12,ADDENDUM TO PURCHASE AGREEMENT:COMMON 60 INTEREST COMMUNITY attached as a part of this Purchase Agreement. 61 (Chec lfapplicable:] k 3 62 (3) The rights of tenants or other parties in possession,as disclosed in M.S.B.A.Real Property Form No.20,ADDENDUM TO PURCHASE 63 AGREEMENT: TENANTS AND PARTIES IN POSSESSION(2005)attached as a part of this Purchase Agreement, 64 65 Although Seller has disclosed these title issues and Buyer has indicated a general willingness to take title subject to these title issues, 66 these title issues are subject to the other provisions of the Purchase Agreementand to an examination oftitle based upon the Minnesota 67 Title Standards and upon Minnesota law. 68 69 Buyer also reserves the right to evaluate these title issues in the light of Buyers intended use and enjoyment of the property. Buyer shall have 70 until the end of the period for stating Title Objections under Paragraph 14.,of this Purchase Agreement to make the evaluation and determine if 71 these title issues will affect Buyers intended use and enjoyment of the property. Except for matters disclosed under B.(2),above,and governed 72 by the statutory remedies referenced in M.S.B.A.Real Property Form No.12,ADDENDUM TO PURCHASE AGREEMENT:COMMON INTEREST 73 COMMUNITY,if Buyer,in Buyers sole discretion,determines that these title issues will adversely affect Buyers intended use and enjoyment of 74 the property,Buyer may declare this Purchase Agreement void by notice to Seller,neither party shall be liable for damages hereunderlo the other, 75 and earnest money shall be refunded to Buyer. If the period for stating Title Objections under Paragraph 14.,passes without Buyers declaring 76 that these title issues will adversely affect Buyer's intended use and enjoyment of the property,then,subject to Sellers covenant to deliver a good 77 and marketable title of record,Buyer shall take title subject to these title issues. [Sellershould consider full disclosure ofall title issues to Buyer 79 in this Purchase Agreement orin addenda to this Purchase Agreement. Full disclosure as to the substance of title issues allows Buyer an early 79 opportunity to ensure that this is the right property for Buyer and to measure the impact on the Buyer's intended use orpotentia/enjoyment of the 80 property.In other words,Buyer's consent to take title subject to the existence of title issues must be a fully informed consent. If Buyer is fully 81 informed early,it is less likely that Buyer will elect to void the Agreement] 82 83 7. REAL ESTATE TAXES AND SPECIAL ASSESSMENTS. e4 A. Prior Years'Delinquent Real Estate Taxes and Delinquent Special Assessments. Delinquent real estate taxes payable in years prior to the e5 year of closing and delinquent installments of special assessments certified for collection with real estate taxes payable in years prior to the year of 86 closing,together with penalty,interest and costs,shall be paid by Seller not later than the actual date of closing. M.S.B.A.Real Property Form No. 30 (2008) Minnesota Vacant Lot Purchase Agreement--Single Dwelling PURCHASE AGREEMENT/PAGE 2 of 8 87 B.Real Estate Taxes Payable in the Year of Closing. Real estate taxes payable in the year of closing shall(select from(1)or(2).] 89 0 (1) Be prorated between Seller and Buyer]select(a)or(b)]: s9 �x (a)On a calendar year basis to the actual dale of closing; 90 O (b)As follows: Seller %; Buyer %; 91 adjusted between Seller and Buyer at closing,and paid to the county at closing if then due and Buyer shall assume installments not 92 paid at closing. 93 (2) Not be prorated and the entire years taxes shall be(select(a)or(b)]: 94 (a) Paid by Seller when due,but not later than closing, 95 (b) Assumed by Buyer,to be paid when due and not later than closing if due prior to closing,and Buyer shall reimburse 96 Seller at closing for any installments paid by Seller prior to closing. 97 Seller shall pay penalty,interest and costs on any delinquent installment of taxes and special assessments payable in the year of closing. fclosing 98 is delayed to a later year,real estate taxes payable in the year of closing shall be prorated between Seller and Buyer on a calendar year basis to 99 the actual date of closing. nm 101 C.Tax Statements. If tax statements for taxes payable in the year of closing are not available on the Dale of Closing,the amount to be used for 102 dosing purposes shall be 100 %of the prior year's taxes,and such amount shall be[select one]=x FULL AND FINAL BETWEEN SELLER AND 103 BUYER =ADJUSTED UPON RECEIPT OF TAX STATEMENTS FOR SUCH YEAR(in which case the party obligated to pay the adjustment 104 shall pay it to the other party within 30 days of issuance of the tax statements). 105 106 D. Homestead Classification. Seller represents that,as of the date of this Agreement,the property tax classification is[strike one]Kdlmkmd 107 I nonhomestead. If the property is nonhomestead,Buyer may change the lax classification for taxes payable in the year following closing by taking 108 possession of the real property as Buyer's homestead and fling a new homestead declaration within the time required by law. If the property tax 109 classification in the year of closing is not homestead,Seller shall pay to Buyer at dosing[select one] 110 Hx $-0 111 O the difference(on Buyer's portion of the taxes)between the taxes in the actual classification and the taxes that would have been payable 112 under homestead classification. 113 If the property tax classification for taxes payable in the year following closing is not homestead and,through no fault of Buyer,the closing takes 114 place after the date by which Buyer must take possession of the real property as Buyer's homestead to file for homestead tax status fortaxes payable 115 in such year,Seller shall pay to Buyer at dosing[select one] 116 r—x is -0- 117 =the difference(on Buyer's portion of the taxes)between the taxes in the actual classification and the taxes that would have been payable Its under homestead classification. 119 [if Buyer intends to claim the property as Buyers homestead,Buyer should file Buyer's homestead declaration as soon as possible after taking 120 possession and occupancy of the property.] 121 122 E.Deferred Real Estate Taxes.]se/ectone.] = BUYER 0 SELLER shall pay on date of closing or provide for payment of any deferred 123 real estate taxes(including"Green Acres"taxes under Minnesota Statutes Section 273.111)payment of which is required as a result of the closing 124 of this sale or the recording of the Deed or Contract for Deed. Provision for payment shall be by payment into escrow of 1.5 times the estimated 125 amount of the assessor's reassessment for deferred taxes. 126 127 F.Valuation Exclusions from Assessed Value.Sellerwarrants and represents that the property(select one:]=does xJ does not have an 128 exclusion from estimated market value for certain home improvements pursuant to Minnesota Statutes Section 273.11,Subd.16(1997). Such 129 exclusion expires on the sale of the property and will cause the assessed value of the property to increase for property tax purposes. The increase 130 in assessed value will cause the property taxes to increase and might make the property unaffordable for Buyer.If Seller represents that the property 131 does not have an exclusion and an exclusion is discovered prior to closing,Buyer may,at Buyer's option: 132 (1) Assume payment of the increased property taxes without adjustment to the purchase price of the real property; 133 (2) Require that the price of the property be reduced by the estimated increase in property taxes over the three calendar years following the year 134 of closing(such estimated increase shall be obtained from the county assessor or city assessor);or. 135 (3) Rescind this Agreement,in which case all earnest money shall be refunded to Buyer. 136 137 If the exclusion is not discovered until afterclosing,Seller shall be liable to Buyer for liquidated damages in the amount that is five times the estimated 138 increase in real estate taxes based on the reassessed value provided that any notice of a claim of breach of warranty must be in writing and must 139 be given by Buyer to Seller within one year of the Date of Closing or be deemed waived. The provisions of this Paragraph F.,shall survive the 140 delivery of the Deed or Contract for Deed. 141 142 G. Certified Special Assessments.All installments of special assessments certified for payment with the real estate taxes payable in the year of 143 closing shall be[select one]: 144 Prorated between Seller and Buyer on a calendaryear basis to the actual date of closing,adjusted at closing,and unless otherwise provided 145 in this Purchase Agreement,shall be paid at closing 146 Paid by Buyer at closing 147 x Paid by Seller at closing 148 = Assumed by Buyer. I49 150 H. Pending Special Assessments.[select one.] BUYER SHALL ASSUME PAYMENT OF=SELLER SHALL PROVIDE FOR PAYMENT 151 OF special assessments pending as of the date of this Purchase Agreement for improvements that have been ordered by the City Council or other 152 governmental assessing authorities. (Seller's provision for payment shall be by payment into escrow of 1.5 times the estimated amount of the 153 assessments.) As of the date of this Purchase Agreement,Seller represents that Seller has not received a Notice of Hearing of a new public 154 improvement project from any governmental assessing authority,the costs of which project maybe assessed against the real property. If a special 155 assessment becomes pending after the date of this Purchase Agreement and before the Dale of Closing,Buyer may,at Buyer's option: 156 (1) Assume payment of the pending special assessment without adjustment to the purchase price of the real property;or, 157 (2) Require Seller to pay the pending special assessment(or escrow for payment of same as provided above) and Buyer shall pay a 158 commensurate increase in the purchase price of the real property,which increase shall be the same as the estimated amount of the 159 assessment;or, 160 (3) Rescind this Agreement,in which case all earnest money shall be refunded to Buyer. 161 162 I. Deferred Special Assessments. [select one.]=BUYER/=x SELLER shall pay on dale of closing or provide for payment of any deferred 163 special assessments payment of which is required as a result of the closing of this sale or the recording/filing of the Deed or Contract for Deed. 164 Provision for payment shall be by payment into escrow of 1.5 times the estimated amount of the deferred special assessments. 165 166 J. All Other Levied Special Assessments. [select one]=BUYER SHALL ASSUME PAYMENT OF/=SELLER SHALL PAY ON DATE 167 OF CLOSING all other special assessments levied as of the date of this Purchase Agreement,except deferred special assessments(covered at 168 Paragraph 71,above). 169 170 K. Taxes and Special Assessments in the Years Following Closing. Buyer shall pay real estate taxes payable in the years following dosing 171 and special assessments payable therewith,the payment of which is not otherwise provided herein. Seller makes no representation concerning the 172 amount of future real estate taxes or of future special assessments. 173 174 S. DAMAGES TO REAL PROPERTY. Until completion of closing and delivery of possession,all risk of loss is on Seller. If the real property is 175 damaged prior to closing,Seller shall give notice to Buyer within 3 business days after such damage has occurred. The notice shall include Seller's 176 proposal for repairing the damage. From the date that Buyer receives Seller's notice,Buyer shall have 3 business days to inspect the real property, 177 and an additional 2 business days to determine if the damages and Sellers proposal for repairs are acceptable to Buyer. If Buyer does not accept 178 Seller's proposals for repairs within the 2 day period,this Agreement is cancelled and the eamest money shall be refunded to Buyer. 179 ISII M.S.B.A.Real Property Form No. 30 (2008) Minnesota Vacant Lot Purchase Agreement--Single Dwelling PURCHASE AGREEMENT/PAGE 3 of 8 181 9. SELLER'S BOUNDARY LINE,ACCESS,RESTRICTIONS AND LIEN WARRANTIES. Seller warrants that buildings on adjoining real property, 182 if any,are entirely outside of the boundary lines of the property. Seller warrants that there is aright of access to the real property from a public right 183 of way. Seller warrants that there has been no labor or material furnished to the property for which payment has not been made. Seller warrants that 184 there are no present violations of any restrictions relating to the use or improvement of the property.Seller warrants that the real property is not subject 185 to a lien for Medical Assistance or other public assistance. These warranties shall survive the delivery of the Deed or Contract for Deed. 196 187 10. CONDITION OF THE REAL PROPERTY. 188 189 A. CLEAN CONDITIONS.Seller shall remove all debris,trash,rubbish,garbage,rubble,and yard waste from the land before the possession date. 190 191 B. HAZARDOUS SUBSTANCES, PETROLEUM PRODUCTS,AND UNDERGROUND STORAGE TANKS. Seller knows of no hazardous 192 substances or petroleum products having been placed,stored,or released from or on the real property by any person in violation of any law, 193 nor of any underground storage tanks having been located on the real property at any lime,except as follows: 194 None 195 196 197 198 If the presence of underground storage tanks is disclosed,then this paragraph applies: Seller hereby represents and warrants to Buyer that all 199 of the underground tanks known to Seller on the subject property have been disclosed to Buyer on the attached drawing or map. Seller shall 200 provide at closing the affidavits required by Minnesota Statutes Sections 115B.16,Subd.2,and 116.48 if applicable to the subject property and 201 record an affidavit attesting to the location of any underground tanks which are used for the storage of petroleum products. 202 203 Notwithstanding Buyer's environmental investigations ofthe property(see Paragraph 22.C.,below),Sellerwarrants and represents to Buyerthat 204 there have been no acts or occurrences upon the property that have caused or could cause hazardous substances or petroleum products to be 205 released or discharged into the subsoil or ground water of the property or other property in the area. Seller represents and warrants to Buyer 206 that the property is free of hazardous substances and is not subject to any"superfund"type liens or claims by governmental regulatory agencies un or third parties arising from the release or threatened release of hazardous substances in,on,or about the property. Seller shall indemnify and 208 hold Buyer harmless from any and all claims,causes of action,damages,losses,or costs(including lawyers fees)relating to hazardous 209 substances or petroleum products in the subsoil or ground water of the property or other property in the area which arise from or are caused by 210 acts or occurrences upon the property prior to Buyer taking possession.These warranties and indemnifications shall survive the delivery of the 211 Deed or Contract for Deed. 212 213 C. WETLANDS,FLOOD PLAIN,AND SHORELAND. Seller knows of no wetlands,flood plain,or shoreland on or affecting the property,except 214 as follows:The property is subject to shoreland and contains wetlands 215 216 [Checkt heboxifthefollowingprovisionappliestothisPurchaseAgreement:] X ADDENDUM TO PURCHASE AGREEMENT:WETLANDS, 217 SHORELAND AND FLOOD PLAIN DISCLOSURE,M.S.B.A.Real Property Form No.8(1997),is included as an addendum to this Purchase 218 Agreement. 219 220 D. PROTECTED SITES.Seller has no knowledge that the property has any conditions that are protected by federal or state law(such as American 221 Indian burial grounds,other human burial grounds,ceremonial earthworks historical structures or materials,or archeological sites). [Check 222 the box ithe following provision applies to this Purchase Agreement:]MADDENDUM TO PURCHASE AGREEMENT: CONTINGENCIES 223 FOR SURVEY,APPRAISAL,DEVELOPMENT EVALUATION,AND ARCHEOLOGICAL/HISTORICAL SURVEY,M.S.B.A.Real Property 224 Form No.17(2005),is included as an addendum to this Purchase Agreement. 225 226 E. DISEASED TREES. Seller has not received any notice from any governmental authority as to the existence of,and Seller has no knowledge 227 of,any Dutch elm disease,oak wilt,or other disease of any trees on the real property. 228 229 F. BUYER'S INSPECTIONS. Buyer shall have the right to have inspections of the property conducted prior to closing. Unless required by local 230 ordinance or lending regulations,Seller does not plan to have the property inspected. Other than the representations made in this Paragraph 231 10.,and in Paragraph 22.,the property is being sold"AS IS"with no express or implied representations or warranties by Seller as to physical 232 conditions or fitness for any particular purpose. 233 234 G. METHAMPHETAMINE DISCLOSURE. (Check only one box,either(1)or(2)] 235 (1) To the best of Seller's knowledge,methamphetamine production has not occurred on the property. 236 0 (2) To the best of Sellers knowledge,methamphetamine production has occurred on the property and Sellers disclosure is continued 237 in Part B., METHAMPHETAMINE DISCLOSURE STATEMENT, M.S.B.A. Real Property Form No.22 (2005),included as an 238 addendum to this Purchase Agreement. 239 240 H. NOTICE OF AIRPORT ZONING REGULATIONS.If airport zoning regulations affect this real property,a copy of those airport zoning regulations 241 as adopted can be viewed or obtained at the office of the county recorder where the zoned area is located. 242 243 I. WARRANTIES SURVIVE CLOSING. Sellers warranties and representations contained in this Paragraph 10.,shall survive the delivery of the 244 Deed or Contract for Deed. 245 246 J. LOCATION OF UTILITIES. For Sellers representations regarding the presence and location of utilities,if any,see Paragraph 22.,D.,below. 247 _ 248 NOTICE REGARDING PREDATORY OFFENDERS: Information about the predatory offender registry and persons registered with the registry 249 may be obtained by contacting the local law enforcement agency or by contacting the Minnesota Department of Corrections at 651-361-7200 or 250 at http:l/www.doc.state.mn.us. 251 252 11. DISCLOSURE OF NOTICES. Seller has not received any notice from any governmental authority as to violation of any law,ordinance or 253 regulation.If the property is subject to restrictive covenants,Seller has not received any notice from any person as to a breach of the covenants. Seller 254 has not received any notice from any governmental authority concerning any eminent domain,condemnation,special taxing district,or rezoning 255 proceedings. Sellers representations contained in this Paragraph 11.,shall survive the delivery of the Deed or Contract for Deed. 256 257 12. ACCESS PRIOR TO CLOSING. By this Purchase Agreement,Buyer does not acquire any right of possession of the property nor does Buyer 258 acquire any right of entry,license,or easement. Seller will consent to a case-by-case right of entry for Buyer and/or Buyers agents,surveyors, 259 engineers,and site evaluators for testing,measuring,and evaluating purposes provided that the following conditions are met: 260 A. There shall be no crop or tree damage. 261 B. There shall be no excavating or earth-moving and no tree removal. 262 C. Buyers independent contractors(surveyors,engineers,and site evaluators,etc.)shall,prior to entry on the land,deliver to Seller proof of 263 independent contract with Buyer and a waiver of lien rights in a form satisfactory to Seller. 264 Buyer shall indemnify and hold Seller harmless from any and all liens,claims,liabilities or charges incurred or caused by Buyers contracts with 265 surveyors,engineers,and site evaluators,which indemnity shall include any lawyers fees,costs or disbursements incurred by Seller in any defense 266 thereof. 267 268 13. POSSESSION. Seller shall deliver possession of the property not later than the day of closing. 269 270 14. EXAMINATION OF TITLE. 271 A. ABSTRACT AND EXAMINATION OF TITLE.To demonstrate that Sellers title is good and marketable of record,within a reasonable time after 272 acceptance of this Purchase Agreement,Seller shall furnish Buyer with an Abstract of Title[see B.,below]or a Registered Property Abstract certified 273 to date including proper searches covering bankruptcies and state and federal judgments,federal court judgment liens in favor of the U.S., liens, 274 and levied and pending special assessments.Buyer shall have ten business days after receipt of the Abstract of Title or Registered Property Abstract 275 either to have Buyers lawyer examine the title and provide Seller with written Title Objections or,at Buyers own expense,to make an application M.S.B.A.Real Property Form No. 30 (2008) Minnesota Vacant Lot Purchase Agreement--Single Dwelling PURCHASE AGREEMENT/PAGE 4 of 8 276 for a title insurance policy and notify Seller of the application. Buyer shall have ten business days after receipt of the Commitment for Title Insurance 277 to provide Seller with a copy of the Commitment and written Title Objections.Buyer shall be deemed to have waived any Title Objections not made 278 within the ten day period above,except that this shall not operate as a waiver of Sellers covenant to deliver a statutory Warranty Deed,unless a 279 Warranty Deed is not specified above. If Buyer obtains title insurance,Buyer is not waiving the right to obtain a good and marketable title of record 280 from Seller, 281 For the purposes of this Agreement,an"Objection to Title"or"Title Objection" is some title matter which fails to pass a title examination based 282 upon Minnesota law and the Minnesota Title Standards promulgated by the Real Property Section of the Minnesota State Bar Association thereby 283 rendering the title unmarketable and is a title matter which requires a remedial response by the Seller prior to or at dosing. 284 An"Exception to Title"or"Title Exception"is some title matter which passes a title examination based upon Minnesota law and the Minnesota Title 285 Standards;is generally regarded by title examiners as not rendering the title unmarketable and,which,because of its nature,is generally disclosed 286 by title examiners to the recipient of the title opinion or title insurance commitment. 287 288 B. ABSTRACT LOST OR UNAVAILABLE: TITLE INSURANCE BY SELLER. If Seller is unable to find the Abstract of Title or if Seller did not 289 receive an Abstract of Title when Seller purchased the Property,then,to demonstrate that Sellers title is insurable for marketability and subject to 290 only those matters disclosed at Paragraph 6.,above,within a reasonable time after acceptance of this Agreement,Seller shall furnish Buyer with 291 a Commitment for Title Insurance including proper searches covering bankruptcies and state and federal judgments,federal court judgment liens 292 in favor of the U.S., liens,and levied and pending special assessments. [Seller see Advisory below.]The Commitment shall be obtained from 293 [select one] 294 a The title insurer of Buyers choice;or, 295 The same title insurer that issued title insurance to Seller so that Seller may obtain a reissue credit from the insurer. 296 The Commitment shall contain the insurers requirements for deleting these exceptions in the owners policy(except for those matters accepted by 297 Buyer in this Agreement): 298 (1) Rights or claims of parties in possession,not shown by the public records 299 (2) Easements,or claims of easements,not shown by the public records: 300 (3) Discrepancies,conflicts in boundary lines,shortage in area,encroachments,and any facts which a correct survey and inspection of the 301 premises would disclose and which are not shown by the public records:and, 302 (4) Any lien,or right to a lien,for services,labor or material furnished,imposed by law and not shown by the public records. 303 Seller shall provide to Buyer and to the title insurer all documents[except a survey,unless Seller is required by other provisions of this Agreement 304 to provide a survey]necessary to enable the title insurer to delete these exceptions from the owners policy of title insurance. Buyer shall have ten 305 business days after receipt of the Commitment for Title Insurance to provide Sellerwith a copy ofthe Commitment and written Title Objections.Buyer 306 shall be deemed to have waived any Title Objections not made within the ten day period above,except that this shall not operate as a waiver of 307 Sellers covenant to deliver a statutory Warranty Deed,unless a Warranty Deed is not specified above. By agreeing to receive title insurance in lieu 308 of an Abstract,Buyer is not waiving the right to obtain a good and marketable title of record from Seller. [Buyer.see Advisory below.] 309 Select one of the following: 310 0 The Commitment shall be accompanied by,at Sellers expense,the insurer's agreement(or the separate agreement ofa Minnesota-licensed 311 abstracter)to provide Buyer with an Abstract of Title at any time in the future. The abstract to be provided shall be at no cost to Buyer for 312 all abstracting through the date of recording of the instrument of conveyance contemplated by this Purchase Agreement. Seller shall pay 313 all commitment, abstracting,examination,searches,and title insurance costs,including the premium for the owners policy and excluding 314 the premium for the lenders policies. 315 Ox The Commitment will not include the insurers or abstracters agreement to provide Buyer with an Abstract of Title at any time at no cost to 316 Buyer.Seller shall pay all commitment,abstracting,examination,searches,and title insurance costs including the premiums for the owners 317 and the lenders policy. 318 ADVISORY TO SELLER:You should consult with your lawyer about the comparative costs of paying an abstract company to produce a 319 new Abstract of Title versus paying the Buyer's title insurance costs. In many Minnesota counties,it is less expensive to obtain a new 320 Abstract 321 ADVISORY TO BUYER:You should consult with your lawyer about the relative merits of receiving an Abstract of Title versus receiving a 322 title insurance policy. As a future seller of the same property,you likely will be asked to give your buyer an Abstract If your Seller does 323 not obtain the title insurance endorsement for future production of an Abstract,you might be facing a large expense when you sell. 324 325 15.TITLE CORRECTIONS AND REMEDIES.Seller shall have a limited time,from receipt of Buyers written Title Objections,to make title marketable. 326 Upon receipt of Buyers Title Objections,Seller shall,within ten business days,give Notice to Buyer of Sellers intention to make title marketable within 327 the title-clearing cure period selected in C.(1)or C.(2)below. Liens or encumbrances for liquidated amounts which can be released by payment or 328 escrow from proceeds of closing shall not delay the closing.Cure of the defects by Seller shall be reasonable,diligent,and prompt.Pending correction 329 of title,all payments required herein and the closing shall be postponed. 330 331 As an alternative to making title good and marketable of record,Seller may,within the ten day Notice period,make a written,dated offer to Buyer to 332 obtain title insurance for Buyer with insuring provisions acceptable to Buyer(and,if applicable,Buyers lender),as follows: 333 • Seller may procure,at Sellers expense,an owners policy of title insurance,from an insurer registered and licensed to do business in Minnesota 334 and acceptable to Buyer,specifically insuring over the Title Objections;or, 335 • If the Title Objections are stated in a title insurance commitment which Buyer has obtained,Seller may provide the insurer with such documents 336 and escrows as are necessary to allow the insurer to specifically insure over the Title Objections and agree to pay all of the insurers charges 337 for issuing the owners policy to Buyer. 338 Under either of these title insuring alternatives,"at Sellers expense"and"pay all of the insurer's charges"mean that Seller will pay all title insurance 339 commitment and policy premium charges,search charges,plat drawing fees,and any other charge by the insurer to issue the owners policy,but not 340 the premium for a lenders policy,if any.If Buyer accepts Sellers offer of an insurable title,then in this Purchase Agreement,"making title marketable" 341 shall mean "making title insurable,"in the manner described above. Buyer is under no obligation to accept Sellers offer of an insurable title in lieu 342 of a good and marketable title of record,but,if Buyer does not reject Sellers offer of an insurable title within three(3)business days of receiving Seller's 343 offer,Buyer shall be deemed to have accepted Sellers offer of an insurable title. If Buyer rejects Sellers offer to make title insurable,Seller shall then 344 make title good and marketable of record and shall be subject to the provisions of this agreement for failure to timely present good and marketable 345 title of record. 346 A. If Notice is given and Seller makes title marketable,then upon presentation to Buyer and proposed lender of documentation establishing that 347 title has been made marketable,and if not objected to in writing and within 5 business days of receipt of Sellers documentation,the closing shall 348 take place within ten business days or on the scheduled closing date,whichever is later. 349 B. If Seller does not give Notice of intention to make title marketable within ten business days after receipt of Buyers Title Objections,this Purchase 350 Agreement is canceled and the earnest money shall be refunded to Buyer. 351 C. Selection of Title-Clearing Cure Period. (C.(1)and C.(2)are alternative remedies. ONLY ONE OF THEM CAN APPLY FOR THIS 352 PURCHASE AGREEMENT.Ifeitherparty cannot endure more than a 30 to 45 day delay for the closing,select C.(1).If both parties can 353 endure a longer delay for the closing,select C.(2). SELECT ONLY C.(1)OR C.(2).] IF THE PARTIES DO NOT SELECT C.(1)OR C.(2), 354 BY CHECKING ONE OF THE BOXES BELOW,THEN C.(1)AUTOMATICALLY APPLIES ASA TERM FOR THIS PURCHASE AGREEMENT. 355 [x C.(1)is selected as a remedy for this Purchase Agreement. 356 (1) Seller shall have 30 days from receipt of Buyers written Title Objections or until the Date of Closing,whichever dale is later,to make title 357 marketable. If Notice is given but the slated period expires without title being made marketable,Buyer may: 358 (a) Cancel this Purchase Agreement by notice to Seller pursuant to Minnesota Statutes Section 559.217,Subd.3(allowing Seller a 15 359 day right to cure)and neither party shall be liable for damages hereunder to the other,and the earnest money shall be refunded to 360 Buyer;or, 361 (b) Elect to take title subject to some or all of the Title Objections. 362 Q C.(2)is selected as a remedy for this Purchase Agreement. 363 (2) Seller shall have[select one] 60 190/120 days from receipt of Buyers written Title Objections or until the Date of Closing,whichever 364 date is later,to make title marketable If Notice is given but the staled period expires without title being made marketable,Buyer may seek, 365 as permitted by law,one or more of the following: 366 (a) Proceed to closing without waiver or merger in the Deed of the Title Objections and without waiver of any remedies,and may: 367 (i) Seek damages,costs,and reasonable lawyers fees from Seller as permitted bylaw(damages under this subparagraph(i)shall 368 be limited to the cost of curing Title Objections,and consequential damages are excluded);or 369 (ii) Undertake proceedings to correct the Title Objections; 370 (b) Rescission of this Purchase Agreement by notice to Seller,in which case all earnest money paid shall be refunded to Buyer; M.S.B.A.Real Property Form No. 30 (2008) Minnesota Vacant Lot Purchase Agreement--Single Dwelling PURCHASE AGREEMENT/PAGE S of 8 371 (c) Damages from Seller together with costs and reasonable lawyer's fees,as permitted by law, 372 (d) Specific performance within six months after such right of action arises,including costs and reasonable lawyer's fees; 373 (e) Cancellation of this Purchase Agreement pursuant to Minnesota Statutes Section 559.217,Subd.3(allowing Seller a 15 day right to 374 cure). 375 D. If title is marketable,or is made marketable as provided herein,and Buyer defaults in any of the agreements herein,Seller may elect either of 376 the following options,as permitted by law: 377 (1) Cancel this Purchase Agreement pursuant to either Minnesota Statutes Section 559.21 or Section 559.217,Subd.3,and retain all payments 378 made hereunder as liquidated damages. [Note: Under federal law,Seller might not be able to legally claim or retain the earnest money 379 underpurchase agreements where Buyerapplies forbutis unable to secure F.H A.or D.V A.mortgage financing.]The parties acknowledge 380 their intention that any note given pursuant to this contract is a down payment note,and may be presented for payment notwithstanding 381 cancellation; 382 (2) Seek specific performance within six months after such right of action arises,including costs and reasonable lawyer's fees,as permitted by 383 law. 384 E. If title is marketable,or is made marketable as provided herein,and Seller defaults in any of the agreements herein,Buyer may,as permitted 385 by law: 386 (1) Seek damages from Seller including costs and reasonable lawyer's fees; 387 (2) Seek specific performance within six months after such right of action arises,including costs and reasonable lawyer's fees; 388 (3) Cancel this Purchase Agreement pursuant to Minnesota Statutes Section 559.217,Subd.3(allowing Seller 15 day right to cure)and neither 389 party shall be liable for damages hereunder to the other,and the earnest money shall be refunded to Buyer. 390 391 NOTE: If this Purchase Agreement is canceled using Minnesota Statutes Section 559.217,contract provisions and statutory provisions for 392 refunding of the earnest money to Buyer might be in conflict. 393 394 16. NOTICES. All notices required herein shall be in writing and delivered personally or mailed to the address as shown at Paragraph 1.,above and 395 if mailed,are effective as of the date of mailing, 391 397 1 VISION OF LAND. If the legal description in this Purchase Agreement is anew description requiring a subdivision of land owned 398 Seller shall pa-7a4gwadivision expenses and obtain all necessary governmental approvals.Seller warrants that the legal descri � relies al property 399 to be conveyed has bee be approved for recording as of the Dale of Closing. Seller warrants that al bd onvtS n charges for the property, 400 payable to the governmental unit ha diction,have been paid in full,including,but not Ii , u division fees,park dedication fees,road 401 and utilities dedication fees,and fees charged boulevards,trees,and I Seller warrants that there are no deferred subdivision aoz charges affecting the property. Seller warrants that there on the availability of building permits because of Sellers subdivision of ao3 the land.Seller warrants that Seller has complied w t a le su egulations.Seller warrants that there are no encumbrances affecting 404 the property in any development agre eller may have with the municlp 405 Seller's warranties ntations contained in this Paragraph 17.,shall survive the very f the Deed or Contract for Deed,provided that 406, any notic c or claim of breach of warranty must be in writing and any such notice with respec rs referred to above must be given 407 yer to Seller within one year of the Date of Closing or be deemed waived. 408 409 18. MINNESOTA LAW. This contract shall be governed by the laws of the Slate of Minnesota. 410 411 19. WELL DISCLOSURE. (Check one of the following J 412 r_X1 Seller certifies that Seller does not know of any wells on the property. 413 F__l Wells on the property are disclosed by Seller on the attached Well Disclosure form. 414 415 20. DISCLOSURE OF INDIVIDUAL ON-SITE SEWAGE TREATMENT SYSTEM. (Check one of the following:) 416 _0 Seller certifies that Seller does not know of any individual on-site sewage treatment systems on the property. 417 Individual on-site sewage treatment systems on the property are disclosed by Seller on the attached Disclosure forth. 418 419 21. SELLER'S AFFIDAVIT. At closing,Seller shall supplement the warranties and representations in this Purchase Agreement by executing and 420 delivering a Minnesota Uniform Conveyancing Blank[Form No. 50.1.2(formerly 116-M)or 50.1.3(formerly 117-M or 118-M)]Affidavit of Seller. 421 422 22. CONTINGENCIES. This Purchase Agreement is subject to the following contingencies which must be performed or occur before the Date of 423 Closing of this transaction or such other dale specified herein["performance date"]. 424 425 A. BUYER'S DEVELOPMENT EVALUATION. This Purchase Agreement is contingent upon Buyer obtaining by(date) 426 a sary approvals,architectural reviews,licenses,zoning,conditional use permits,variances,building permits,environ permits, 427 environmen {{Q�rovals,and all other necessary permits,licenses and approvals(or has obtained reasonable assuran ceptable to Buyer, 428 in its sole discretion.-That ch approvals will be available)for the intended development of[briefly describe]: 429 430 Buyer shall promptly proceed to obtain ermils,licenses,approvals and/or assurance er shall assist Buyer in applying for rezoning, 431 necessary licenses, conditional use permits, es, building pe mils, envir al permits, and all other necessary permits for the 432 development of the property as Buyer may determine to essan b o cost to Seller. 433 This Purchase Agreement is also contingent upon Buyer del date] that the proposed development can be 434 constructed on the property without the use of piling rdinary filling,o r extraordinary land preparation steps which would make it 435 financially impractical for Buyers intended u ests and inspections shall be con in such a manner so as to prevent any damage to 436 the property. Buyer shall promptly 1ne the soil conditions of the property and make the n calculations. Buyer shall promptly pay 437 for all services rendered i cling such tests and inspections and will not allow any mechanic's liens ach to the property. Buyer shall 438 indemnify Sellerf such costs,expenses and liens. Buyer and its authorized agents,shall have the limited rig uant to Paragraph 12., 439 above)f date of this Purchase Agreement,to enter upon the property to make such surveys,measurements,soil les other tests as 440 deems necessary,but without expense to Seller. 441 442 B. SURVEY. Buyers obligation to close under this Purchase Agreement is contingent upon Buyer obtaining, at Buyer's expense, by 443 [date]June 22,2012 a survey of the property certified to Buyer as of a current date(no earlier than the date of this Purchase 444 Agreement)evidencing conditions satisfactory to Buyer and containing certifications meeting the following minimum standards: 445 446 (a) Prepared,dated and signed by a Minnesota Registered Land Surveyor with his or her seal affixed. 447 (b) Includes legal description properly identifying the property described in this Purchase Agreement. 448 (c) Locates all platted and unplatted property lines and lot lines. 449 (d) Locates all streets adjacent to the property. 450 (e) Locates all curb cuts,driveways and fences. 451 (f) Locales all easements described in the plat,if any,and in the record title of the property. 452 (g) Locates all visible utility lines that service the property and improvements(sewer,water,gas,electric and telephone). 453 (h) Locates any building setback lines. 454 (1) Locates all encroachments or makes a positive statement that there are no encroachments. 455 (j) Locates all improvements on the property. 456 (k) Shows all descriptions,angles,and other calls contained in the legal description. 457 458 Buyer shall promptly retain a surveyor. If the survey reveals boundary or title problems,Buyer shall promptly deliver a copy of the survey to Seller. 459 If the survey has been delivered to Buyer after Buyer's date for stating title objections,Buyer shall have an additional ten days from the date of 460 receiving the survey in which to state additional title objections. If the boundary or title problems prevent this transaction from closing,Seller shall 461 reimburse Buyer for all expenses of survey and Buyer shall assign all rights in and to the survey to Seller. 462 463 C. ENVIRONMENTAL ASSESSMENT. This Purchase Agreement is contingent upon Buyer obtaining, at Buyers expense, a Phase 1 464 Environmental Assessment of the property by fdate]June 22,2012 , sufficient to meet the diligence requirements of federal 465 and state law,certified to Buyer as of a current date(no earlier than the date of this Purchase Agreement)evidencing conditions satisfactory to 466 Buyer.Buyer shall promptly retain a qualified environmental scientist to conduct the environmental assessment. If the environmental assessment M.S.B.A.Real Property Form No. 30 (2008) Minnesota Vacant Lot Purchase Agreement--Single Dwelling PURCHASE AGREEMENT I PAGE 6 of 8 467 reveals environmental conditions which are in violation of the law,Buyer shall promptly deliver a copy of the report to Seller. If the environmental 468 conditions are not remedied by Seller,thereby preventing this transaction from closing,Seller shall reimburse Buyer for all expenses of the 469 environmental assessment and Buyer shall assign all rights in and to the environmental assessment to Seller. 470 471 UTILITIES: SELLER'S UTILITIES REPRESENTATIONS AND BUYER'S CONTINGENCY. Seller represents that:(Seller select one 472 answer for each utility;if you a2 uncertain,select"might not be.'] 473 474 ■ city er: _]is ❑is not ❑might not be available to the property through a service stub at the public right-of-way frontage line; 475 ■ city wat ❑is ❑is not ❑might not be available to the property through a service stub at the public right-of-way frontage li , 476 ■ electricity: ❑is ❑is not ❑might not be available to the property through a service stub at the public right-of-way frontag ne; 477 ■ natural gas: is ❑is not ❑might not be available to the property through a service stub at the public right-of-way fron a line; 478 ■ telephone: ❑is not ❑might not be available to the property through a service stub at the public right-of-way fir age line. 479 480 (CHECK EITHER(1)OR 481 482 ❑ (1) Buyer is Not Relying on Iler's Representations.The price offered by Buyer in this Purchase Agree ent does not reflect any reliance 483 u on an re resentations m e bv Seller as to the location or availability of utilities, Buyer's ob tion to close under this Purchase 484 Agreement is contingent upon er obtaining,at Buyer's expense,verification that utilities can b rovided to the property at costs which 485 are reasonable for Buyer. This con ency shall be satisfied by[date] or be deemed waived. NOTE: Unless 486 the following costs and charges have b n assessed against the property prior to the date o is Purchase Agreement by the governmental 487 unit having jurisdiction(and therefore al dy covered by the provisions for payment special assessments),Buyer shall assume the 488 payment of municipal charges for developm on,construction on,or improvement o e property related to access fees,connection fees 489 and"hook up"fees for connections to sewer, r,and other utilities. 490 491 ❑ (2) Buyer is Relying on Seller's Affirmative Represent ' ns. The price red by Buyer in this Purchase Agreement reflects that Buyer 492 is relying upon Sellers affirmative representations that th tilities are ailable as indicated by Seller above. Buyer's obligation to close 493 underthis Purchase Agreement is contingent upon Buyerven g,a uyers expense,without disturbing any soil,that utilities are available 494 as represented by Seller. Buyers good faith investigation to sal this contingency is limited to:(i)physical inspection of the property;(ii) 495 inspection of available,local public records;or,(iii)utilization G er State One Call[Metro 612-454-0002;Outstate 1-800-252-11661. 496 Buyers investigation shall be completed by [date] or this contingency shall be deemed waived. 497 498 Buyer's Investigation. [check the following conditi I statements that ap to this Purchase Agreement'] 499 ❑ If Buyers investigation shows that the u' ies are not available as repre nted above by Seller;or, 500 ❑ if the utilities are not in the locatio s represented above by Seller;or, 501 ❑ if the utilities cannot be locate ilhout disturbing the soil; 502 503 and if Buyer chooses not to waiv is contingency,then Buyer shall notify Seller of these circu ances,and,prior to closing,Seller shall, 504 at Sellers option: [strike out y of the following that are not appropriate] 505 506 (a) Excavate tove' the existence and location ofthe utilities as represented above,and,ifnecessa , btain installation ofany missing 507 utilities;or, 508 509 (b) Notify yer in writing that Seller will reduce the selling price of the property by the estimated cost of inst g the missing utilities 510 to property line;or, 511 512 Notify Buyer in writing that Seller will escrow at closing,for one year following the Date of Closing,125%of the es' ated cost of 513 installing the missing utilities to the property line if they cannot be located by Buyers excavation after closing;or, 514 515 (d) Accept this circumstance as a failed contingency and reimburse Buyer for all expenses incurred by Buyer pursuant to this Pur ase 516 Agreement,including but not limited to all expenses incurred in attempting to satisfy any of Buyer's contingencies. sn 518 If any of the contingencies has not been satisfied or waived by Buyer on or before the respective performance dates,this Purchase Agreement may 519 be terminated at Buyer's option,which option must be exercised by notice to Seller within five days after the respective performance date,but not later 520 than one day before the Date of Closing,and the earnest money shall be promptly refunded to Buyer upon Buyers exercise of the option to declare 521 this Purchase Agreement null and void.Both Buyer and Seller shall cooperate and make all reasonable efforts to attempt to remove the contingencies 522 by the respective performance dates. 523 524 23. CLOSING. Closing shall be at the office of Sellers lawyer,Buyer's title insurer,or at some other mutually agreeable location. 525 526 (State other location.] 527 At closing,Seller and Buyer shall disclose their Social Security Numbers or Federal Tax Identification Numbers for the purposes of completing state 528 and federal tax forms. 529 530 CLOSING COSTS. The costs of dosing,if not determined by other provisions of this Agreement,shall be paid as follows. 531 A. SELLER'S COSTS. Seller shall pay the following at closing: 532 1. Document preparation costs,recording fees,and deed taxes for documents necessary to establish good and marketable title in Seller, 533 2. Document preparation costs,certified copy fees,and recording fees to establish the authority of the person acting on behalf of Seller. 534 3. Document preparation costs for Sellers deed or contract-for-deed,Certificate of Real Estate Value,Sellers affidavit,Well Disclosure 535 Certificate(if required),and any other documents necessary to transfer good and marketable title by Sellers deed or contract-for-deed. 536 4. Deed tax on Sellers deed and the Agricultural Conservation deed tax charged under Minnesota Statutes Section 40A.152. 537 5. Fees payable to Sellers lawyer or to a closer["title closer']for conducting the title-transfer portion of the closing. If Seller is not providing 538 a lawyer or title closerfor the title-transfer portion of the closing and if Buyer is obtaining new mortgage financing and the closers fee is not 539 separated into a"title closing fee"and a"loan closing fee;'then Seller shall pay one half of the closers fee or$ -,whichever 540 amount is less. 541 6. And also the following costs: 542 543 544 545 546 547 548 549 550 B. BUYER'S COSTS. Buyer shall pay the following at closing: 551 1. Document preparation costs,recording fees,and mortgage registry taxes for documents necessary for Buyers mortgage financing. 552 2. Document filing fee for a Well Disclosure Certificate,if applicable. 553 3. The Agricultural Conservation deed tax on Buyers mortgage deed charged under Minnesota Statutes Section 40A.152. 554 4. Loan closers fee. 555 5. Recording fee for Deed,Contract for Deed,or other instrument of conveyance where Buyer is the grantee. 556 6. And also the following costs: 557 558 559 560 M.S.B.A.Real Property Form No. 30 (2008) Minnesota Vacant Lot Purchase Agreement--Single Dwelling PURCHASE AGREEMENT/PAGE 7 of 8 561 562 24. ADDITIONAL TERMS. See attached 563 564 565 566 567 569 569 570 571 572 573 574 575 25. ADDENDA.Attached are the following addenda which are made a part of this Purchase Agreement: [Check only those that are attached.] 576 577 FINANCING(Select only one financing addendum:] 579 Financing Addendum for Seller Mortgage,M.S.B.A.Real Property Form No.5(2005) 579 Financing Addendum for Contract for Deed,M.S.B.A.Real Property Form No.6(2005) 590 Financing Addendum for Assumption,M.S.B.A.Real Property Form No.7(2005) 591 592 D CLOSURE AND CONTINGENCY: 593 X Addendum to Purchase Agreement: Wetlands,Shoreland,and Flood Plain Disclosure,M.S.B.A.Real Property Form No.8(1997) 594 Disclosure of Sewage Treatment System,M.S.B.A.Real Property Form No.14(1998) 595 Addendum to Purchase Agreement: Contingencies for Survey,Appraisal,Development Evaluation,and Archeological/Historical 596 Survey,M.S.B.A,Real Property Form No.17(2005) 597 a Well Disclosure Statement,M.S.B.A.Real Property Form No.21(2005) 599 Methamphetamine Disclosure Statement,M.S.B.A.Real Property Form No.22(2005) 599 590E ISSUES: 591 X Addendum to Purchase Agreement:Title Issues,M.S.B.A.Real Property Form No.19(2005) 592 Addendum to Purchase Agreement:Tenants and Parties in Possession,M.S.B.A.Real Property Form No.20(2005) 593 594 26.TIME IS OF THE ESSENCE. Time is of the essence for all provisions of this Purchase Agreement. 595 596 27. MULTIPLE ORIGINALS. Seller and Buyer have signed(numberjtwg(2) originals of this Purchase Agreement. 597 �4' 0n THIS IS A LEGALLY BINDING CONTRACT. BEFORE SIGNING,CONSULT A LAWYER. Minnesota law permits licensed real estate 6n1 brokers and sales agents to prepare purchase agreements. No recommendation or representation may be made by any real estate 02 broker or sales agent as to the legal sufficiency,the legal effect,or the tax consequences of this contract. These are questions for 6113 your lawyer. I agree to sell the property for the price and terms and conditions I agree to purchase the property for the price and terms and set forth above. conditions set forth above. SELLER: BUYER: John E.Babcock (date) (date) SELLER: BUYER: Nancy K.Babcock (date) (date) This Purchase Agreement was prepared by. Robert J.Walter Gray Plant Mooty Mooty&Bennett PA 1010 West St.Germain Suite 500 St.Cloud,MN 56301 Telephone: 320-252-4414 Facsimile: 320-252-4482 Others who will assist Seller or Buyer with this transaction: Lawyer for Buyer Telephone:320-252-4414 Facsimile:320-252-4482 Gray Plant Mooty Mooty&Bennett PA 1010 West SL Germain Suite 500 St.Cloud,MN 56301 Listing Agent and Broker for this transaction are: Telephone: Facsimile: None M.S.B.A.Real Property Form No. 30 (2008) Minnesota Vacant Lot Purchase Agreement--Single Dwelling PURCHASE AGREEMENT/PAGE 8 of 8 Selling Agent and Broker for this transaction are: Telephone: Facsimile: Buyers or Lender's Title Insurer Telephone:763-441-3280 Facsimile: Sherburne County Abstract$Title 351 Main Street Elk River,MN 55330 SPACE FOR SUPPLEMENTAL TERMS Legal Description of the Protected Property Parcel I That part of Lot 2, AUDITOR'S SUBDIVISION NO. 3 TO THE VILLAGE OF ELK RIVER, Sherburne County, Minnesota, lying Easterly of the center of the Elk River, except that part thereof lying Northerly and Easterly of the following described line: Commencing at a point on the East line of said Lot 2 at the intersection thereof with the Easterly extension of a line running from a point on the East line of Norfolk Avenue (formerly Minnesota Street) extended Southerly which is 275 feet South of the South line of Manor Place (formerly Outlook Avenue), said point shall be known as Point "A", and through a point on the Southerly extension of the West line of HASTINGS FIRST ADDITION TO ELK RIVER which is 304 feet South of the South line of said Manor Place; thence Westerly in a straight line to said Point "A"; thence continue on the last described course in a westerly direction a distance of 230.70 feet; thence northerly deflecting 91' 56' to the right a distance of 279.24 feet to intersect a line which bears South 60° 56' 00" West from a point on the southerly extension of the West line of Block 1, HASTINGS SECOND ADDITION TO ELK RIVER, which point is 256.20 feet South of the Southeast corner of Lot 24, Block 6, HOULTON'S ADDITION TO THE VILLAGE OF ELK RIVER, for the purpose of this description the West line of Block 1, said HASTINGS SECOND ADDITION is assumed to bear South; thence North 60° 56' 00" East a distance of 24.31 feet to the Southerly extension of the West line of Block 1, said HASTINGS SECOND ADDITION; thence Northerly on said Southerly extension of the West line of said Block 1 to the Southwest corner of Lot 13, Block 1, of said HASTINGS SECOND ADDITION and there terminating. Also except that part lying Northerly of the following described line: Commencing at the Southeast corner of Lot 24, Block 6, HOULTON'S ADDITION TO THE VILLAGE OF ELK RIVER; thence South, assumed basis of bearings, along the West line of Block 1, HASTINGS SECOND ADDITION TO ELK RIVER and the Southerly extension thereof, a distance of 256.20 feet to the actual point of beginning of the line to be described; thence South 60° 56' 00" West, a distance of 37.36 feet to intersect a line which bears South 64° 15' 00" West from a point on the southerly extension of the West line of Block 1, said HASTINGS SECOND ADDITION, which point is 258.60 feet South of the Southeast corner of Lot 24, Block 6, said HOULTON'S ADDITION; thence South 64° 15' 00" West, a distance of 219 feet, more or less, to the center of the Elk River, and there terminating. Also including that part of Government Lot 2, Section 4, Township 32, Range 26, Sherburne County, Minnesota lying Easterly and Northerly of the center line of the Elk River. Parcel II That part of Lot 2, AUDITOR'S SUBDIVISION NO. 3 TO THE VILLAGE OF ELK RIVER, being part of Government Lot 2, Section 33, Township 33, Range 26, Sherburne County, Minnesota, described as follows: Commencing at a point on the southerly extension of the East line of Norfolk Avenue (formerly GP:3170913 v1 Minnesota Street) which is 275.00 feet southerly of the intersection of the East line of Norfolk Avenue with the South line of Manor Place (formerly Outlook Avenue), as measured along said southerly extension of the East line of Norfolk Avenue; thence northwesterly along the northwesterly extension of a line drawn from a point which is on the southerly extension of the West line of Block 1, HASTINGS FIRST ADDITION TO ELK RIVER a distance of 304.00 feet southerly of the intersection of the West line of Block 1, said HASTINGS FIRST ADDITION with the South line of Manor Place to the point of commencement, a distance of 156.58 feet to the point of beginning; thence continue along the last described course, a distance of 74.12 feet; thence northerly deflecting to the right 91' 56' 00", a distance of 279.24 feet, more or less, to intersect the hereinafter described Line B; thence Northeasterly deflecting to the right 59° 19' 38" along said Line B, a distance of 9.28 feet; thence southerly deflecting 120° 40' 22" to the right, a distance of 136.31 feet; thence easterly deflecting to the left 90° 00' 00", a distance of 67.16 feet; thence southerly deflecting to the right 90° 24' 30", a distance of 145.13 feet to the point of beginning. Line B is described as follows: Commencing at the Southeast corner of Lot 24, Block 6, HOULTON'S ADDITION TO THE VILLAGE OF ELK RIVER; thence on a bearing of South, assumed basis of bearings, along the West line of Block 1, said HASTINGS SECOND ADDITION and its southerly extension, a distance of 256.20 feet to the point of beginning of said Line B; thence South 60° 56' 00" West, a distance of 37.36 feet and there terminating said Line B. GP:3170913 v l r Exhibit B : Property Map . . c.... t ...... �Q 1" t ' ` .. ..... ..... .. l ..., ... ..... ..... ........ t � ......... � . . It r t p 0 t P ° ,i I EGEND - i , +rProtected Property Additional P!ropeny Owned By LandOwner Y ? c Section Lines •County Line -.. ,Roads Driveways and Minor Roads M A , ■ Buildings _ n► _ }!#�Potential River Access - 1011 Contours �' o 0 Tennis Court i Cultivated Land _ Grasslands Woodlands ~ ' Wetlands, t Water Residential Development Map created:February 27,2012 Map Resource Information Site: Mississippi River-Tract: Babcock Protected Property,SectionlCounty lines.Buildings,Roads,Dolve xays Sherburne C(unq,-TWp•33 N Rng'26 W Sec.33 Scale: &minor Roads,30-Foot Contours,Cultivated Land,Grasslands, Sherburne Count -Tw).32 N RIl .26 W SeC.4 j++ 300+ N /i� t'" Woodlands,Mflands,Water,&RasAantial Development '�" created by Community GIS Services Inc, u Users of this map agree and aclnowledgo that Comnwnity GIS Services Inc, QQ 1SO 0 300 and the Minnesota Land Trust cannel be bald liable for accuracy of GIS material provided.GIS materials should not be relied upon to establish legal title,boundaryl. d 1' •. �� M rNU Tr°us Ines,or locations of improvements. Feet Attachment to Purchase Agreement Between John E. Babcock and Nancy K. Babcock, as Sellers and the City of Elk River, as Buyer 22. (Continued) E. This Purchase Agreement is contingent on the property being subject to a conservation easement to Minnesota Land Trust, acceptable to Buyer. F. The property being subject to an easement to Eric and Elizabeth Toth, acceptable to Buyer. G. Receipt of funding from State DNR grant, acceptable to Buyer. H. Approved by Elk River City Council. 24. Additional Terms. A. Seller shall be granted a license across the property being conveyed to Buyer to gain access to the property being retained by Seller at such location as described by Buyer. Seller will notify Buyer of their intended need to cross Seller's retained property and Buyer will then designate where and when access may be used by Seller. GP:3275201 v] Draft 4 4 Date: October 26, 2012 CONSERVATION EASEMENT This is a CONSERVATION EASEMENT granted by John E. Babcock and Nancy K. Babcock, husband and wife, (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".) BACKGROUND A. OWNER. The Owner is the current owner of approximately 26 acres of real property located in Sherburne County, Minnesota. That real property is more fully described below as the "Protected Property." The Protected Property is part of a larger tract of land owned by the Owner. 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(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, possessing the commitment to protect the conservation purposes of this conservation easement and the resources to enforce the restrictions. 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 in the City of Elk River,just south of the historic downtown and at the confluence of the Elk and Mississippi rivers. It is located within Minnesota's Anoka Sandplain Ecological Subsection. Existing improvements on the Protected Property include an unimproved field road along the northern boundary, a small garage, a small barn, a shed a three-sided horse shelter, and a tennis court. These improvements are more specifically described in the baseline property report referred to in section 6 of this Easement. The Protected Property is currently used for low impact outdoor recreational use and nature observation. The Protected Property is a unique peninsula of land situated at the confluence of the Elk and Mississippi rivers and consists of approximately 17 acres of grassland, 5 acres of floodplain forest, 3 acres of open water, and less than 1 acre of wetland. The Elk River forms the western and southern boundaries of the Protected Property, which features approximately 2,591 feet of shoreline along the River. The Mississippi River flows along the eastern boundary of the Protected Property for approximately 493 feet. The Mississippi River is a resource of vast natural, cultural, and economic importance to the state of Minnesota. The Mississippi flyway is an important migration corridor for roughly 40 percent of the country's migratory birds and waterfowl, and River backwaters provide critical nesting, spawning, and other habitat for both aquatic and terrestrial animals. In particular, the 58-mile stretch through the northwest Metro from Anoka to St. Cloud is known for its exceptional wildlife habitat and is popular for boating, canoeing, fishing, hunting, and other water-based recreational activities. While several popular game fish species are found in this stretch of the Mississippi River, it is especially prime habitat for smallmouth bass. This stretch of the Mississippi River also has been designated as a state Wild and Scenic River and state Water Trail. The natural attributes of the Protected Property include the relatively natural wildlife habitat provided by the undeveloped shoreline along the two rivers, grasslands and floodplain forest. Additionally, the grassland is a key habitat, and the Elk and Mississippi rivers are key river habitats within the Anoka Sandplain Ecological Subsection 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, Minnesota's Comprehensive Wildlife Conservation Strategy, 2006. In particular, the Protected Property is the site of a known bald eagle nest, and trumpeter swans are known to use this stretch of the river. The Protected Property is a component of a regionally significant wildlife corridor 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 the Minnesota Legislature. Protection of the Protected Property will enhance the habitat value of other nearby components of this corridor, including Mississippi River Islands Scientific and Natural Area(SNA), by providing additional natural shoreline along the 2 Mississippi River. The Protected Property also lies within a five-mile radius of three Wildlife Management Areas, Sand Dunes State Forest,Uncas Dunes SNA, and four private parcels permanently protected with conservation easements held by the Minnesota Land Trust. It also lies across the Mississippi River from Otsego County Regional Park, a Wright County regional park. The scenic attributes of the Protected Property include the floodplain forest and undeveloped shoreline, which are visible to the public from the Mississippi River, the Elk River, and nearby public areas such as Otsego County Regional Park. Protection of these attributes ensures compatibility and consistency with the Wild and Scenic designation of the Mississippi River. The Protected Property is also important for its unique cultural and historic values. Because of its location at the confluence of two rivers, the Protected Property likely is a site of some of the earliest European discovery and exploration as well as the habitation of the native population in the area. Preservation of the Protected Property provides a unique opportunity to protect a parcel of land at the confluence of two rivers that has ecological and cultural significance. D. PUBLIC PARK. It is the intent of the Owner and the Land Trust and the City of Elk River, that immediately following the execution of this Easement by the parties, the Owner shall convey fee title to the Protected Property to the City of Elk River subject to the terms and restrictions of this Easement and for use as a public park. E. 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 fish, wildlife and plants, including the bald eagle, trumpeter swan, Blanding's turtle, American badger, and bobolink. • The undeveloped shoreline along the Mississippi and Elk rivers helps maintain the water quality of the rivers and provides near-shore habitat for a variety of aquatic plants, animals and natural communities. • The open and natural character of the Protected Property will provide scenic views enjoyed by the general public from the Otsego County Regional Park, the Elk River, and the Mississippi River, a Minnesota Department of Natural Resources designated Wild and Scenic River and State Water Trail. • Access to the Protected Property will provide the general public with opportunities for outdoor recreation and/or education. 3 These Conservation Values have not been and are not likely to be significantly impaired by the continued use of the Protected Property as described above or as authorized in this conservation easement or by the use, maintenance, or construction of any structures and improvements that presently exist on the Protected Property or that are authorized below. The preservation and protection of these Conservation Values will provide significant benefit to the public. F. CONSERVATION POLICY. Preservation and protection of the Conservation Values of the Protected Property is consistent with and will further delineated governmental policies including those established by the following: • Minnesota Statues Chapter 97A.056, which governs the Outdoor Heritage Fund and Minnesota Laws 2011, First Special Session, Chapter 6,Article 1, Section 2, Subdivision 5(d), which provides funding from that fund to acquire interests in land in fee or permanent conservation easements and to restore and enhance natural systems associated with the Mississippi, Minnesota, and St. Croix Rivers. • 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 the role of private lands in these conservation efforts to, among other things, preserve natural resources, protect water quality, preserve wildlife, and protect public lands and waters. • Minnesota Statutes Sections 103A208 and 103F.301 to 103F.345, also known as the Minnesota Wild and Scenic Rivers Act, which specifically promote the preservation and protection of certain Minnesota rivers and adjacent lands, including the Mississippi River, because of their outstanding scenic, natural, historical, scientific and similar values and the importance of retaining these values for present and future generations. • 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. G. 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 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. H. FUNDING: Funding for the purchase of this conservation easement has been provided by Minnesota's Outdoor Heritage Fund through the Metro Big Rivers Habitat program under 4 grant number 3000008673. The purpose of this grant is to acquire interests in land in fee or permanent conservation easements and to restore and enhance natural systems associated with the Mississippi, Minnesota, and St. Croix Rivers. Due to this funding, this conservation easement is subject to Minnesota Laws 2011, First Special Session, Chapter 6, Article 1, Section 2, Subdivision 13, which specifically requires that a notice of funding agreement pertaining to the conservation easement interest must be recorded against the Protected Property. This notice of funding agreement contains the following statement: "This interest in real property shall be administered in accordance with the terms, conditions, and purposes of the grant agreement controlling the acquisition of the property. The interest in real property, or any portion of the interest in real property, shall not be sold, transferred, pledged, or otherwise disposed of or further encumbered without obtaining the prior written approval of the Lessard-Sams Outdoor Heritage Council or its successor. The ownership of the interest in real property shall transfer to the state if: (1) the holder of the interest in real property fails to comply with the terms and conditions of the grant agreement or accomplishment plan; or (2) restrictions are placed on the land that preclude its use for the intended purpose as specified in the appropriation." 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 for the further consideration of Twenty-Six Thousand One Hundred and Fifty Dollars ($26,150), 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.") 1. CONSERVATION PURPOSE. The conservation purpose of this Easement is to provide significant public benefit by preserving and protecting in perpetuity the Conservation Values of the Protected Property identified above as those values exist at the time of this conveyance and as they may evolve in the future. This purpose is accomplished by confining the development, management and use of the Protected Property to activities and improvements that are consistent with the preservation of these Conservation Values, by prohibiting activities and improvements that significantly impair or interfere with these Conservation Values, and by providing for remedies in the event of any violation of this Easement. 2. RESTRICTIONS. Any activity or improvement on or use of the Protected Property in a manner that may significantly impair or interfere with the Conservation Values of the s Protected Property or that is inconsistent with the terms or the conservation purpose of this Easement is prohibited. This specifically prohibits any future development that would interfere with or intrude upon 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 of this Easement and without limiting the general prohibition above, restrictions imposed upon the Protected Property expressly include the following: 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 that habitat management, minimal commercial recreational use, or 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 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 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. The general prohibition set out above does not prohibit the following: a. The division of the Protected Property when a portion of the Protected Property is being conveyed to a conservation entity defined in section 7.1 of this Easement. b. 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 6 Easement may not be transferred to any other property or used to obtain any regulatory mitigation credits. 2.7. 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 7.6 of this Easement. This provision does not affect any rights of way existing at the time of this conveyance. 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. b. Signs. 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. With the Owner's permission, the Land Trust may place signs on the Protected Property identifying the land as protected. c. Roads. The existing access road along the northern boundary may be maintained but may not be improved, widened or relocated without the prior approval of the Land Trust under the provisions of section 7.6 of this Easement. If in the future the Protected Property is owned by a public entity, an access road and parking area may be established and maintained on the Protected Property as permitted in section 3.4 below. This access road and parking area may be paved. No other roads, driveways or parking areas may be established or constructed on the Protected Property without the prior approval of the Land Trust under the provisions of section 7.6 of this Easement. d. Trails. Paths or foot trails, including boardwalks and bridges, may be established and maintained for non-motorized recreational uses. Trails may be constructed and maintained, including paving, as necessary to meet requirements of the Americans with Disabilities Act. Trails may be established, maintained and used only in a manner that does not result in significant erosion or that impairs or interferes with the natural habitat, water quality or 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. Fences may not be located or constructed in a manner that impairs or interferes with the natural habitat or scenic quality of the Protected Property or interferes with established wildlife corridors. f Outdoor Lighting. No permanent outdoor lighting is allowed other than as necessary to provide lighting at the entrance to the Protected Property or for security and public safety purposes. 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 burning or composting of excess brush or other plant material resulting from activities permitted by this Easement. This 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. 2.11. 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. This does not, however, include or prohibit surface alterations incidental to any construction or other activities or uses otherwise specifically permitted by this Easement. Any alteration resulting from an otherwise permitted activity or use shall be undertaken with minimal disturbance to soils, topography and vegetation and with proper erosion control practices. At the conclusion of the activity, the surface shall be restored in a timely manner to a condition consistent with the conservation purpose of this Easement. Additionally, this does not prohibit research on or limited alteration to the Protected Property undertaken by the Office of the State Archeologist, Minnesota Indians Affairs Council or other duly authorized state or federal agency that may now exist or that may be established in the future to oversee potential archeological sites located on the Protected Property. s This provision does not include or prohibit creation, maintenance, restoration or enhancement of wildlife habitat or native biological communities otherwise permitted under section 3 of this Easement. 2.12. Water. No alteration, manipulation or diversion 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, to improve or enhance the function and quality of existing wetlands or water bodies or as specifically permitted in section 3 of this Easement. This does not prohibit the installation of wells under the provisions of section 2.8 above or water uses incidental to activities and uses otherwise specifically permitted by this Easement. 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 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 habitat management as specifically permitted in section 3 of this Easement. b. As reasonably required to construct or 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 conservation purpose of this Easement. c. As reasonably required to prevent or control insects, noxious weeds, invasive vegetation, disease, fire, personal injury, or property damage. d. To remove downed or dead timber for firewood or other use, or for public safety. e. Harvesting naturally occurring plant products (i.e. mushrooms, berries, nuts, herbs, prairie seed, etc.) in a manner that maintains a sustainable growth and reproduction cycle for the harvested plant populations and the surrounding vegetation. Nothing in this section allows the intentional introduction of recognized invasive vegetation on the Protected Property. 9 2.14. Vehicles. No snowmobiles, motorcycles, all-terrain vehicles or other types of motorized recreational vehicles may be operated on the Protected Property. This provision is not intended to otherwise limit the use of motorized vehicles on roads, driveways, or parking areas permitted under this Easement, or in conjunction with demolition and removal of any building or structure, or construction or maintenance of permitted buildings, structures, roads, trails and other improvements, or as permitted under section 2.7 of this Easement, provided that such use does not result in significant erosion or impairment to or interference with the natural habitat, water quality or 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 impairs or interferes with the Conservation Values 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 which reserved rights are specifically allocated to the property being conveyed. c. Notice to Land Trust. The Owner will notify the Land Trust of any proposed conveyance of title to the Protected Property at least fifteen(15) days before closing. The Owner will also provide the Land Trust with the name and address 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 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 10 Owner shall notify the Land Trust of any change in the designated representative and provide the Land Trust with the new name, address and other contact information within fifteen (15) days after the 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 might affect title to the Protected Property or the validity or enforceability of this Easement. 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 Mana e ment. 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 management plan may include the creation and maintenance of raingardens. 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, canoe and kayak launching, fishing, 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. Minor rustic structures such as trail barriers, fishing platforms, boardwalks and bridges, benches, picnic tables, trash/recycling receptacles, and informational kiosks that do not impair or interfere with the natural habitat or scenic qualities of the Protected Property may be placed on the Protected Property in conjunction with permitted recreational and educational activities. Recreational and educational structures may also be developed on the Protected Property as follows: a. Existing Structures. With the exception of the existing tennis court, the existing buildings and structures may be used, maintained and repaired, but may not be expanded or replaced. The existing tennis court may not be maintained, repaired or replaced, but may be removed. If the Owner removes the existing buildings and structures, or any part of them, the Owner shall restore the affected area to a condition consistent with the Conservation Values of the Protected Property. b. Access Road and Parking. An access road and parking area related to the permitted recreational and educational activities are permitted subject to section 2.8 above. c. Canoe and Kayak Landing Area. An area to land and launch canoes and kayaks may be established and maintained on the Protected Property. The location of the landing area shall be located within the area designated as Potential River Access on the Property Map or an alternative location approved by the Land Trust under the provisions of section 7.6 of this Easement. The landing area must be sited, constructed, and maintained in a manner that minimizes impact to the shoreline, does not result in significant erosion, and has no more than minimal impact on the Conservation Values of the Protected Property. d. Restroom Facility. A restroom facility to serve public use of the Protected Property may be constructed, maintained, repaired, and replaced on the Protected Property in the vicinity of the permitted parking area, or alternative location approved in writing by the Land Trust under the provisions of section 7.6 of this Easement. Such facility may not significantly impair or interfere with the natural habitat or scenic qualities of the Protected Property. 4. LAND TRUST'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 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, or through other methods of dispute resolution, against the Owner or other responsible party. 12 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 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. 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. 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, the court may require the Land Trust to reimburse the Owner for the Owner's reasonable costs and attorneys fees in defending 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 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 terms of this Easement. 13 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 any of the following: • Causes beyond the Owner's control such as changes caused by fire, flood, storm, natural deterioration or the unauthorized acts of third parties. • 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. 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 are more fully described in a baseline 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 monitoring future uses of the Protected Property, in documenting compliance with the terms of this Easement and in any 14 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. Subject to the provisions of Minnesota Statutes Chapter 97A.056 and Minnesota Laws 2011, First Special Session, Chapter 6, Article 1, Section 2, Subdivision 13, this Easement may be 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 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 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 holder. 7.2. Amendment. Subject to the provisions of Minnesota Statutes Chapter 97A.056 and Minnesota Laws 2011, First Special Session, Chapter 6, Article 1, Section 2, Subdivision 13, and 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. • The amendment creates or results in impermissible private benefit or private inurement as prohibited by 501(c)(3) of the Internal Revenue Code. 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 in whole or in part only as set out in this section and subject to the provisions of Minnesota Statutes Chapter 97A.056 and Minnesota Laws 2011, First Special Session, Chapter 6,Article 1, Section 2, Subdivision 13. 15 a. Change of Circumstances. This Easement may be terminated or extinguished if circumstances arise that make continued use of the Protected Property in a manner consistent with the conservation purpose of this Easement impossible or impractical. In this event, this Easement may be extinguished only through judicial proceedings. b. Condemnation. This Easement may be terminated or extinguished pursuant to the proper exercise of the power of eminent domain. c. Proceeds upon Termination. Following any termination or extinguishment 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 at the time of extinguishment termination shall be calculated by the method required by the Internal Revenue Service for calculating an income tax deduction for a charitable donation of a conservation easement. The Land Trust will use its share of any proceeds in a manner consistent with the conservation purpose of this Easement and in accordance with Minnesota Statutes Chapter 97A.056, and Minnesota Laws 2011, First Special Session, Chapter 6, Article 1, Section 2, Subdivision 13. 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. 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. 16 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. 7.5. 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 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 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. 7.6. Notice and Approval. Any notice or request for approval required by this Easement must be in writing and is subject to the following. 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 17 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 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: John and Nancy Babcock 223 Nile Place NW Elk River, MN 55330 To the Land Trust: Minnesota Land Trust 2356 University Avenue West St. Paul, MN 55114 c. 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. d. 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 conservation 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 plan for any needed restoration of the Protected Property following construction. • 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 judgment, make the proposed activity consistent with the Easement or otherwise meet any concerns. 18 7.7. 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. 7.8. Definitions. Unless the context requires otherwise, the following terms are defined as follows: a. "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. 7.9. 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. 7.10. 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. Interpretation. This Easement shall be interpreted as follows: a. Controlling Law and 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 purpose and to the policies and purposes of Minnesota Statutes 19 Chapter 84C, Minnesota Statutes Chapter 97A.056, and Minnesota Laws 2011, First Special Session, Chapter 6, Article 1, Section 2, Subdivision 13. b. Severability. A determination that any provision or specific application of this Easement is invalid shall not affect the validity of the remaining provisions or any future application. 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. 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 impractical for continued use of the Property for conservation purposes and shall not constitute grounds for terminating the Easement. 7.12. 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 error or mutual mistake, legal description or title matter or to comply with any federal, state, or local law, rule or regulation. 7.13. Entire Agreement. This document sets forth the entire agreement of the parties with respect to this Easement and supersedes all prior discussions or understandings. 7.14. 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. 20 IN WITNESS WHEREOF, the Owner has voluntarily executed this Conservation Easement on the day of , 2012. OWNER: John E. Babcock Nancy K. Babcock State of ) ss County of ) The foregoing instrument was acknowledged before me this day of , 2012, by John E. Babcock and Nancy K. Babcock,husband and wife. Notary Public My Commission Expires: 21 ACCEPTANCE The MINNESOTA LAND TRUST hereby accepts the foregoing Conservation Easement effective as of the day of ) 2012. MINNESOTA LAND TRUST By: Kris Larson Title: Executive Director State of MINNESOTA ) ss County of RAMSEY ) The foregoing instrument was acknowledged before me this day of , 2012, by Kris Larson, the Executive Director 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: This document drafted by: Minnesota Land Trust 2356 University Avenue West St. Paul, MN 55114 22 Exhibit A Legal Description of the Protected Property Parcel I That part of Lot 2, AUDITOR'S SUBDIVISION NO. 3 TO THE VILLAGE OF ELK RIVER, Sherburne County, Minnesota, lying Easterly of the center of the Elk River, except that part thereof lying Northerly and Easterly of the following described line: Commencing at a point on the East line of said Lot 2 at the intersection thereof with the Easterly extension of a line running from a point on the East line of Norfolk Avenue (formerly Minnesota Street) extended Southerly which is 275 feet South of the South line of Manor Place (formerly Outlook Avenue), said point shall be known as Point "A", and through a point on the Southerly extension of the West line of HASTINGS FIRST ADDITION TO ELK RIVER which is 304 feet South of the South line of said Manor Place; thence Westerly in a straight line to said Point "A"; thence continue on the last described course in a westerly direction a distance of 230.70 feet; thence northerly deflecting 91° 56' to the right a distance of 279.24 feet to intersect a line which bears South 60° 56' 00" West from a point on the southerly extension of the West line of Block 1, HASTINGS SECOND ADDITION TO ELK RIVER, which point is 256.20 feet South of the Southeast corner of Lot 24, Block 6, HOULTON'S ADDITION TO THE VILLAGE OF ELK RIVER, for the purpose of this description the West line of Block 1, said HASTINGS SECOND ADDITION is assumed to bear South; thence North 60° 56' 00" East a distance of 24.31 feet to the Southerly extension of the West line of Block 1, said HASTINGS SECOND ADDITION; thence Northerly on said Southerly extension of the West line of said Block 1 to the Southwest corner of Lot 13, Block 1, of said HASTINGS SECOND ADDITION and there terminating. Also except that part lying Northerly of the following described line: Commencing at the Southeast corner of Lot 24, Block 6, HOULTON'S ADDITION TO THE VILLAGE OF ELK RIVER; thence South, assumed basis of bearings, along the West line of Block 1, HASTINGS SECOND ADDITION TO ELK RIVER and the Southerly extension thereof, a distance of 256.20 feet to the actual point of beginning of the line to be described; thence South 60° 56' 00" West, a distance of 37.36 feet to intersect a line which bears South 64° 15' 00" West from a point on the southerly extension of the West line of Block 1, said HASTINGS SECOND ADDITION, which point is 258.60 feet South of the Southeast corner of Lot 24, Block 6, said HOULTON'S ADDITION; thence South 64° 15' 00" West, a distance of 219 feet, more or less, to the center of the Elk River, and there terminating. also including that part of Government Lot 2, Section 4, Township 32, Range 26, Sherburne County, Minnesota lying Easterly and Northerly of the center line of the Elk River. Parcel II That part of Lot 2, AUDITOR'S SUBDIVISION NO. 3 TO THE VILLAGE OF ELK RIVER, being part of Government Lot 2, Section 33, Township 33, Range 26, Sherburne County, Minnesota, described as follows: 23 Commencing at a point on the southerly extension of the East line of Norfolk Avenue (formerly Minnesota Street)which is 275.00 feet southerly of the intersection of the East line of Norfolk Avenue with the South line of Manor Place (formerly Outlook Avenue), as measured along said southerly extension of the East line of Norfolk Avenue; thence northwesterly along the northwesterly extension of a line drawn from a point which is on the southerly extension of the West line of Block 1, HASTINGS FIRST ADDITION TO ELK RIVER a distance of 304.00 feet southerly of the intersection of the West line of Block 1, said HASTINGS FIRST ADDITION with the South line of Manor Place to the point of commencement, a distance of 156.58 feet to the point of beginning; thence continue along the last described course, a distance of 74.12 feet; thence northerly deflecting to the right 91' 56' 00", a distance of 279.24 feet, more or less, to intersect the hereinafter described Line B; thence Northeasterly deflecting to the right 59° 19' 38" along said Line B, a distance of 9.28 feet; thence southerly deflecting 120° 40' 22" to the right, a distance of 136.31 feet; thence easterly deflecting to the left 90° 00' 00", a distance of 67.16 feet; thence southerly deflecting to the right 90° 24' 30", a distance of 145.13 feet to the point of beginning. Line B is described as follows: Commencing at the Southeast corner of Lot 24, Block 6, HOULTON'S ADDITION TO THE VILLAGE OF ELK RIVER; thence on a bearing of South, assumed basis of bearings, along the West line of Block 1, said HASTINGS SECOND ADDITION and its southerly extension, a distance of 256.20 feet to the point of beginning of said Line B; thence South 60° 56' 00" West, a distance of 37.36 feet and there terminating said Line B. 24 AMENDED DRIVEWAY EASEMENT AGREEMENT THIS AMENDED DRIVEWAY EASEMENT AGREEMENT is made this day of , 2012, by and between John E. Babcock and Nancy K. Babcock, husband and wife, (hereinafter "Babcock") and Eric R. Toth and Elizabeth A. Toth, husband and wife, (hereinafter "Toth"). RECITALS 1. Babcock is now the owner in fee of real property situated in Sherburne County, Minnesota, legally described as set forth in Exhibit A attached hereto, and hereafter described as Parcel A. 2. Toth is now the owner in fee of real property situated in Sherburne County, Minnesota, legally described as set forth in Exhibit B attached hereto, and hereafter described as Parcel B. 3. Parcel A is subject to that certain perpetual easement for driveway purposes in favor of Parcel B as more fully set forth in that certain deed, dated May 31, 1982, filed September 20, 1982, as Document No. 171558 in the office of the Sherburne County Recorder ("Driveway Easement") and legally described as set forth in Exhibit C attached hereto. 1 GP:3221224 v4 4. Babcock and Toth desire to restate and amend the terms of said Driveway Easement. NOW, THEREFORE, in consideration of the mutual agreement herein contained, the parties covenant and agree for themselves, their heirs, successors, and assigns, as follows: 1. Driveway Easement. The real property subject to the perpetual Driveway Easement is hereby amended and is legally described as set forth in Exhibit D and further identified herein as Amended Driveway Easement. The Amended Driveway Easement granted to the owner of Parcel B is a non-exclusive easement. The owner of Parcel A shall have the right to use the Amended Driveway Easement for access to Parcel A. 2. Maintenance of Amended Driveway Easement. The owners of Parcel B shall be responsible to construct, reconstruct, inspect, repair and maintain the Amended Driveway Easement, including, but not limited to the right to grade, level, fill, drain, pave, excavate, remove snow and mow. Any construction or repair in the Amended Driveway Easement shall only be done upon prior written approval by the owner of Parcel A. 3. Maintenance of Gate and Fence. The owners of Parcel B shall be responsible to maintain and control the fence located on the west, south and east boundaries of the Amended Driveway Easement. The owners of Parcel B shall also have the right, but not the obligation, to improve the fence and gate system. Any construction or repair of the fence or gate system shall only be done upon prior written consent of owners of Parcel A. 2 GP:3221224 v4 4. Use of Easement. The owners of Parcel B shall be free to utilize the Amended Driveway Easement for residential ingress and egress purposes, including but not limited to, the use of any type of non-commercial motorized or non-motorized vehicle and/or recreational equipment. Parking, storage or placement of vehicles, structures or other items is not permitted in the Amended Driveway Easement. Commercial vehicle use of the Amended Driveway Easement, except for deliveries to Parcel B, is not permitted. 5. Benefited Parcel. The Amended Driveway Easement is for the benefit of and appurtenant to Parcel B. 6. Term. The Amended Driveway Easement shall be perpetual. 7. Covenants Running With Land. The Amended Driveway Easement hereby granted, the restrictions hereby imposed, and the agreements herein contained shall be easements, restrictions, and covenants running with the land and shall inure to the benefit of, and be binding upon, the parties hereto and their heirs, successors and assigns. 8. Not a Public Dedication. Nothing contained in this instrument will be deemed to be a gift or dedication of any portion of the easement to the general public or for the general public or for any public purpose whatsoever, it being the intention that this instrument will be strictly limited to and for the purposes expressed herein. 9. Indemnity. The owners of Parcel B hereby agree to indemnify and hold harmless the owner of Parcel A against any and all claims and any damage or loss due to the use of the Amended Driveway Easement by the owners of Parcel B, their guests and invitees. 3 GP:3221224 v4 10. Entire Agreement. This Amended Driveway Easement Agreement supersedes all agreements previously made between the parties relating to its subject matter. There are no other understandings or agreements between the parties. 11. Non-Wavier. No delay or failure by either party to exercise any right under this instrument, and no partial or single exercise of that right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein. 12. Headings. Headings in this instrument are for convenience only and shall not be used to interpret or construe its provisions. 13. Governing Law. This instrument shall be construed in accordance with and governed by the laws of the State of Minnesota. IN WITNESS WHEREOF, the parties have signed this instrument as of the above date. BABCOCK: TOTH: John E. Babcock Eric R. Toth Nancy K. Babcock Elizabeth A. Toth STATE OF MINNESOTA ) ss. COUNTY OF SHERBURNE) The foregoing instrument was acknowledged before me this day of , 2012, by JOHN E. BABCOCK and NANCY K. BABCOCK, husband and wife. Notary Public 4 GP:3221224 v4 STATE OF MINNESOTA ) ) ss. COUNTY OF SHERBURNE) The foregoing instrument was acknowledged before me this day of 2012, by ERIC R. TOTH and ELIZABETH A. TOTH, husband and wife. Notary Public THIS INSTRUMENT WAS DRAFTED BY: Gray, Plant, Mooty, Mooty & Bennett, P.A. Robert J. Walter 1010 West St. Germain Suite 500 St. Cloud, MN 56301 Telephone: (320) 252-4414 5 GP:3221224 v4 EXHIBIT A (Parcel A—Babcock Property) 6 GP:3221224 v4 EXHIBIT B (Parcel B - Toth Property) That part of Lot 2, of Auditor's Subdivision No. 3,Village of Elk River,described as follows,to-wit: Beginning at a point on the south line of Outlook Avenue (according to the duly recorded plat thereof)where the same is intersected by the west line of Block 1 of Hastings 1 st Addition extended, and running thence westerly along the south line of said Outlook Avenue 80 feet, thence in a southerly direction and parallel to the said west line of Block 1 (Hastings 1 st Addition) extended to the intersection of a line running at right angles to the east line of Minnesota Street(Hastings 2'u Addition) extended 275 feet from its intersection with the south line of said Outlook Avenue, thence easterly on the line running at right angles to the east line of said Minnesota Street to its intersection with the west direction 304 feet along the said west line of Block 1 (Hastings 1st Addition) extended to the point of beginning, according to the plat thereof on file and of record in the office of the County Recorder in and for Sherburne County,Minnesota. 7 GP:3221224 v4 EXHIBIT C (Driveway Easement) 1. Driveway Easement and Maintenance Agreement as contained in Document No. 376619. 2. Driveway Easement over that part of Lot 2, Auditor's Subdivision No. 3 described as follows: Commencing at a point on the East line of said Lot 2, 685.84 feet Northerly of the Southeast corner thereof, thence North 82 degrees 11 minutes West, assuming said East line runs true North and South, 201.88 feet; thence Southerly and parallel with the East line of said Lot 2 a distance of 30 feet; thence Easterly to a point on the East line of said Lot 2, 30 feet South of the point of beginning; thence Northerly on and along said East line to the point of beginning as evidenced by Document No. 171558. 8 GP:3221224 v4 EXHIBIT D (Legal Description for Amended Driveway Easement) See attached. 9 GP:3221224 v4 Easement Exhibit for: ERIC TOTH Part of Lo t 2, Job # 8129.1016 Book/Page: Scale: 1"=60' Date: 3/20/2012 Auditor;sf 5�ubdivioion No. 3 11 { N 232.12 — CHIS "X'' BIT i ; —EXISTING DRIVEWAY EASEI ENT ,_- W =' 29.49< �—.o° _;t::::.:.:__ ............ _........... .....:_:_ ..= - -- -_ —.r x `x�- c--=—�c---7� 234.54 1 60 / oo`� 1 EXISTING SPLIT RAIL FENCE— 1b l — \0 1\11c m u� 1 r m G ° O o N G � O � x .Z EXISTING WIRE FENCE 9 x x x x— GATE c,+ 1 Z N 1 1 O x 00 0 1 W K 1 i I I 10 GP:3221224 v4 8. l s te., ii--5-2412 lieurtaL Resolution No. 12- City Council City of Elk River A Resolution finding that acquisition of the Property known as Bailey Point for Park purposes has no relationship to the City of Elk River Comprehensive Plan and authorizing the Mayor and City Clerk to execute the necessary documents to purchase Bailey Point. RECITALS WHEREAS,the City was approached by the current owners of the property known as Bailey Point(the "Property")to inquire as to the City's interest in acquiring the Property for public park purposes; and WHEREAS,the City Council, by prior action, directed that negotiations proceed for the acquisition of the Property; and WHEREAS, City staff has worked with the owners of the Property and the Minnesota Land Trust to structure a transaction pursuant to which the owners will grant a conservation easement to the Minnesota Land Trust and sell the Property to the City subject to the conservation easement; and WHEREAS, Bailey Point is a 26-acre property at the confluence of the Mississippi and Elk rivers which has been used for private recreational purposes for many years; and WHEREAS, acquisition of the Property subject to the conservation easement will ensure that the Property remains used for passive recreational purposes; and WHEREAS,the Property is designated in the City of Elk River Comprehensive Plan as within the "Old Town" area of the City; and WHEREAS,the Old Town designation of the Comprehensive Plan includes the use of land for public or private parks; and WHEREAS,the property is currently zoned by the City of Elk River Zoning Ordinance RI-C, which also allows public or private parks; and WHEREAS, acquisition of Property for a passive recreational public park will not change the existing use of the Property for passive recreational purposes and will be consistent with the City of Elk River Comprehensive Plan. NOW THEREFORE, the City Council of the City of Elk River finds: That the proposed acquisition of the Property for passive recreational purposes subject to a conservation easement in favor of the Minnesota Land Trust is consistent with the current use of the Property as well as the City's Comprehensive Plan and Zoning Ordinance. That acquisition of the Property has no relationship to the Comprehensive Plan and therefore it is not necessary for the Elk River Planning Commission to review the proposed acquisition and report to the City Council on its finding as to the compliance of the proposed acquisition with the Comprehensive Plan. The City Council hereby authorizes the Mayor and City Clerk to execute the necessary documents to complete the purchase of the Property known as Bailey Point. Adopted this 5th day of November, 2012,by the affirmative vote of no less than four members of the City Council. John J. Dietz, Mayor Tina Allard, City Clerk PKB:klz GP:3284617 vl