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HomeMy WebLinkAbout6.h. Accepting the Donation of Outlots A, B, and C of Bella Vista fro Greenway, Park, and Shoreland Purposes 4 ROSEt4OUI\flT EXECUTIVE SUMMARY CITY COUNCIL City Council Regular Meeting: October 1, 2013 AGENDA ITEM: Accepting the Donation of Outlots A, B, AGENDA SECTION: and C of Bella Vista for Greenway, Park, Consent and Shoreland Purposes PREPARED BY: Eric Zweber, Senior Planner AGENDA NO. (e.i< ATTACHMENTS: Resolution; Bella Vista Preliminary Plat; Bella Vista Final Plat; Greenway APPROVED BY: Easement; Shoreland Easement. 04.1 RECOMMENDED ACTION: Motion to Adopt a Resolution Accepting the Donation of Outlot A, Outlot B, and Outlot C of Bella Vista from RIOU Property 2, LLC. ISSUE Klein Bank is the primary owner of the property that Lennar has requested and received approval to develop into the Bella Vista subdivision. Klein Bank has formed the limited liability corporation (LLC) RIOU Property 2,LLC to handle the ownership of the former Adam LaFarve property. On July 16, 2013, the City Council approved the Preliminary Plat for Bella Vista that included a greenway with a regional trail that ran from the intersection of Bacardi Avenue and Bonaire Path to the northwest, to the McMenomy property in the east. The plat also included a park on the southeast shore of Horseshoe Lake and shoreland protection around Horseshoe Lake. The discussion during the Preliminary Plat process included the involvement of Dakota County and the Metropolitan Council assisting in open space protection by acquiring greenway and shoreland easements. On August 5,2013, the City Council approved the Final Plat for Bella Vista that created eight outlots including three outlots for the greenway and shoreland: Outlots A,B, and C. Since that approval,the City Attorney, the Parks and Recreation Director,and the Senior Planner have been working with Dakota County and the Metropolitan Council staff to create appropriate easement documents. Those easements are attached to this Executive Summary and include all the comments and changes that City staff has requested. The easements allow for the construction and maintenance of all public infrastructure needed for the subdivision and the public park but prevent private development and private use of the easement areas. The closing on the property between Klein Bank (RIOU Property 2) and Lennar is scheduled for Wednesday, October 2 and will include the recording of the easements and transferring of Outlots A, B, and C to the City through a limited warranty deed. Staff is requesting that the City Council adopt the resolution accepting the donation of these properties so that staff can accept the deeds on October 2. RECOMMENDATION Staff recommends that the City Council adopt the Resolution to accept the donation of Outlots A,B,and C of Bella Vista. CITY OF ROSEMOUNT DAKOTA COUNTY, MINNESOTA RESOLUTION 2013 - A RESOLUTION ACCEPTING THE DONATION OF OUTLOT A, OUTLOT B AND OUTLOT C OF BELLA VISTA FROM RIOU PROPERTY 2, LLC WHEREAS, on July 16, 2013, the City of Rosemount approved the Preliminary Plat for the Bella Vista subdivision that includes a greenway,regional trail, and shoreland around Mare Pond and Horseshoe Lake; and WHEREAS, on August 5, 2013, the City of Rosemount City Council approved the Bella Vista Final Plat which included Outlots A and B for the greenway and regional trail easements and Outlot C for the shoreland easement; and WHEREAS, the City of Rosemount understands that Dakota County and the Metropolitan Council will acquire easements over the greenway,regional trail, and shoreland for perpetual use and protection; and WHEREAS, the City of Rosemount understands that ownership of the greenway,regional trail,and shoreland will be transferred to the City after the easements are acquired; and WHEREAS, on October 2, 2013, the closing of the property transfer is scheduled in which Dakota County and the Metropolitan Council will record the greenway easement on Outlots A and B and Dakota County will record a shoreland easement on Outlot C; and WHEREAS, on October 2, 2013 following the recording of the easements, RIOU Property 2,LLC will donate Outlot A, Outlot B, and Outlot C of Bella Vista to the City of Rosemount and provide limited warranty deeds. NOW THEREFORE,BE IT RESOLVED, that the City Council of the City of Rosemount hereby accepts the donation of Outlot A, Outlot B, and Outlot C of Bella Vista from RIOU Property 2,LLC. ADOPTED this 1st day of October, 2013. William H. Droste,Mayor ATTEST: Amy Domeier, City Clerk I kw IT ;67„ x-=!i12■;-- I°gig1 p 3 C1� r g ° & 1 y y �w k " g g .Q g o op.,, a I Q W a 814 n a f �� g9 <g c R i v F, r.W O .o mm L S o k a°n $ .c�. $ �u M i 6 at tBs o W '4. a r b 3 §§ k !E � ° 0 CS t k . s` u .,, to e o In I G V g , e a - _s m€ Am 2 g pa � o G7 i. ss Z W c s= E � s �£ B o a a a $$L $ d uwS i%% si3vY Ili !9a arc° 3 X€b€y - .� :141R • o O ii gg 1 99° _ N_ _� ',• V �i�; ,� vtir.::::.' �� y �,...4.4„ 0000,,,,,r we./ i ., r,7 - - t-7,14144101,L;-: -.7, :i' '.-NIV$1*Wy4AH4/ mirm,wwizrzw-------6 ,-,ig: 1 c- '4 t AV :Iii'l'P . "I i''.° vitt otT,044 tip, / 47111Essmanwilikv .. 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L tt 141' i ,, _ ———— —.——— .i a 1 1 Dakota County Contract# AGREEMENT FOR THE PURCHASE OF COMBINED PERMANENT MUNICIPAL GREENWAY CONSERVATION EASEMENT AND REGIONAL TRAIL CORRIDOR EASEMENT Tract No.408 This Agreement, made and entered into on the 20th day of September, 2013 ("Effective Date"), by and between RIOU Property 2, LLC, a Minnesota limited liability company (hereinafter called the "Seller"), and the COUNTY OF DAKOTA, a political subdivision of the State of Minnesota, (hereinafter called the"Buyer"). WITNESSETH: WHEREAS, Seller is the owner of certain real property, as defined below, situated in Dakota County, Minnesota; and WHEREAS, Seller agrees to sell and Buyer agrees to buy a permanent municipal greenway conservation easement and a regional trail corridor easement on a portion of Seller's property; NOW, THEREFORE, in consideration of the mutual promises and covenants and agreements stated in this document, it is agreed by and between Seller and Buyer as follows: AGREEMENT 1. DEFINITIONS. As used in this Agreement, the following terms shall have the meaning provided herein: a. "Agreement" shall mean this Agreement for the Purchase of a Conservation Easement between Buyer and Seller as of the Effective Date. b. "Closing" shall mean the process by which the Buyer, Seller and Title Company execute all necessary documents for the Seller to sell and the Buyer to Buy the Conservation Easement, together with any other documents required by the Seller or the Title Company. c. "Closing Date" shall mean October 2, 2013. d. "Combined Easement" shall mean an instrument in substantially the same form as Exhibit B, encumbering the Protected Property. e. "Conservation Easement" shall mean those encumbrances that protect the conservation values of the Protected Property by creating a permanent greenway as provided for within the instrument attached as Exhibit B. f. "Due Diligence Deadline" shall mean September 25, 2013. g. "Effective Date" shall mean the last date of execution by either of the Parties to this Agreement. h. "Environmental Law" shall mean each and every federal, state, and local law, statute, ordinance, regulation, rule, judicial or administrative order or decree, permit, license, approval, authorization or similar requirement pertaining to the protection of human health and safety or the environment. i. "Hazardous Substance" shall mean any substance which is (i) defined as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof, (iii) hazardous, toxic, corrosive, flammable, explosive, infectious, radioactive, carcinogenic, or reproductive toxicant, (iv) regulated pursuant to any Environmental Law(s), or (v)any pesticide regulated under state or federal law j. "Natural Resource Management Plan" shall mean a written compilation of required and recommended natural resources management practices for the Protected Property to be implemented after the Closing Date. k. "Parties"shall mean the Buyer and the Seller, as defined above, collectively. I. "Property Report" shall mean a written description of baseline conditions of the Protected Property as of the Closing Date. m. Protected Property" shall mean that certain real estate encumbered by the Combined Easement situated in Dakota County, Minnesota, as legally described in Exhibit A and generally depicted in Exhibit A-1. n. "Purchase Price" shall mean the sum of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000). If the Purchase Price includes consideration of donated easement value by the Seller, Buyer agrees to acknowledge that it received the donated property from the Seller as necessary to complete the United States Department of Treasury Internal Revenue Non-case Charitable Contribution Form 8283 within thirty(30) days from such time as the form is provided by the Seller. o. "RTC Easement" shall mean the encumbrances that enables the construction, operation and maintenance of a paved, regional recreational trail within an approximately 100-foot wide corridor and secures regional wastewater conveyance corridors within the RTC Easement Area for the benefit of the Metropolitan Council as provided for within the instrument attached as Exhibit B. p. "RTC Easement Area" shall mean the approximately 100-foot wide corridor that may be narrower or wider in certain areas depending on final corridor design, totaling approximately 8.5 acres, within the Protected Property, encumbered by the RTC Easement. q. "Title Company" shall mean North American Title Company at 5001 American Blvd, Suite 255, Bloomington, Minnesota 55437. r. "Total Property"shall mean that real property owned by Seller that includes the Protected Property and other real property owned by Seller adjacent to or in proximity to the Protected Property as identified in Exhibit A-1. 2. FEE OWNER. Seller represents that Seller is the fee owner of the Total Property and hereby agrees to encumber the Protected Property with a Conservation Easement and a RTC Easement, subject only to the following exceptions: a. Building and zoning laws, ordinances, State and Federal regulations; and b. Utility, drainage, and public road easements of record. c. Other exceptions (from Title Commitment and survey) as listed below: i. Easements for drainage and utilities as shown on the recorded plat of Mallard Pond 2nd Addition,filed on November 8, 1995, as Document No. 1311954. ii. Easements for utility, drainage, ponding and street purposes in favor of the City of Rosemount, dated June 15, 2006, and filed June 27, 2006, as Document No. 2441045. 2 iii. Pipeline Easement in favor of Northern Natural Gas Company dated May 15, 2007, and filed March 28, 2008, as Document No. 2581130. Said Pipeline Easement was rerecorded to correct the legal description contained in the Pipeline Easement filed June 7, 2007, as Document No. 2522458. iv. Easement in favor of Northern Natural Gas Company dated September 1, 1932,filed November 10, 1932, as Document No. 131561 in Book 193 of Deeds, page 462; as modified by Modification and Amendment of Easement Grant dated July 21, 1967, and filed August 14, 1967, as Document No. 340689 in Book K of M.R., page 184; as partially released by Partial Release of Easement dated May 27, 2008, and filed May 29, 2008, as Document No. 2593533. v. Easement for pipeline purposes in favor of Williams Bros. Pipe Line Company, as described in Partial Release of Right of Way dated July 18, 1967, and filed September 6, 1967, in Book K of M.R., page 240. vi. Subject to the rights of the State of Minnesota and the Department of Natural Resources, if any, in and to the wetlands as shown on available maps and/or as depicted on the recorded plat. vii. Lease Agreement between KleinBank and Robert M. Hilk dated April 25, 2013, terminating on September 30, 2013. vii. Easements for drainage and utilities as shown on the plat of Bella Vista. 3. DEVELOPMENT RIGHTS. Seller agrees to convey the existing development rights within the Protected Property to Buyer upon the conveyance of the Combined Easement. Upon the Closing, no development rights shall remain within the Protected Property. 4. TITLE EXAMINATION. Within twenty (20) days after the Effective Date, Buyer shall pay the entire cost for updating the title insurance commitment/binder. Buyer shall be allowed up to twenty (20) days after receipt for examination of the title documents and to make any objections to title. Buyer shall make any such objection in writing or the objection shall be deemed to be waived. If any objections are made, Seller shall have one hundred twenty (120) days to make title marketable. Pending correction of title, the payments required by this Agreement shall be postponed, but upon correction of title, and within twenty (20) days of written notice to Buyer, the Parties shall perform this Agreement according to its terms. If title is not marketable and is not made so within one hundred twenty(120)days from the date of written objection as provided above, this Agreement shall, at Buyer's option, be void and neither Party shall be liable for damages or costs to the other Party. If Buyer obtains title insurance, Buyer is not waiving the right to obtain a good and marketable title of record from Seller. 3 Buyer agrees to take all actions necessary to obtain recordable subordination agreements from all persons or entities having a recorded interest in the Total Property, to the effect that the Combined Easement shall take priority to, and not be affected by, the foreclosure of any mortgage or lien against Seller's title, and that the purchaser at a foreclosure sale of such mortgage or lien shall take title subject to the Buyer's Combined Easement. 5. PAYMENT TERMS. As consideration for the covenants and agreements made herein, Buyer agrees to pay the Purchase Price of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000.00) to Seller for the Combined Easement on the Protected Property, less closing costs, payable in cash or equivalent upon the execution and delivery of the Combined Easement encumbering the Protected Property and other documents necessary to complete the Closing on the Closing Date. 6. CLOSING COSTS. a. Seller shall be responsible for, and pay the following costs: special assessment search, tax and judgment search, any corrective title action needed and fees associated with making Seller's title marketable, Seller's attorney's fees, and fifty (50) percent of closing fees charged by the Title Company. Further, Seller shall be solely responsible for, and hold Buyer harmless from paying, any real estate fees or commissions due or claimed to be due arising from this transaction. If a power of attorney is necessary for Seller to complete the Closing, then Seller is responsible for all costs associated with the power of attorney document including, but not limited,to the preparation costs and recording fees. b. Buyer is responsible for paying the costs for a title commitment and supplements, examination fee, name search, property inspection, title insurance premium, property inspection, any recording fees for the Conservation Easement, and fifty (50) percent of closing fees charged by the Title Company. 7. SELLER'S CLOSING DOCUMENTS. Seller agrees to execute and deliver the following documents to Buyer on the date of closing: a. A Greenway Easement and RTC Easement encumbering the Protected Property. b. Standard Seller's Affidavit regarding Parties in possession. c. Any other document(s) requested by Buyer or the Title Company to effectuate the closing and the terms of this Agreement. 8. TAXES AND SPECIAL ASSESSMENTS. Seller will pay all current, past due and future property taxes and any special assessments levied or to be levied against the Total Property. 9. SELLER'S WARRANTIES. Seller warrants that: a. Seller has full power and authority to enter into this Agreement (and the person signing this Agreement for the Seller has full power and authority to sign for the Seller and to bind it to this Agreement) and to sell, transfer and convey all right, title and interest in and to the Property. b. The execution of this Agreement will not constitute a breach or default under any agreement to which the Seller is bound and/or to which the Total Property is subject. c. There is no suit, action, arbitration, or legal, administrative or other proceeding or injury pending or threatened against the Total Property or any portion thereof or pending or 4 threatened against the Seller which could affect the Seller's title to the Protected Property or any portion thereof, affect the value of the Total Property or Protected Property, or subject an owner of the Protected Property to liability. d. Except for an option in favor of U.S. Home Corporation, there is no lease, license, permit, option, right of first refusal or other agreement, oral or written,which affects the Protected Property. e. There are no present violations of any restrictions relating to the use or improvement of the Total Property or any uncured notices which have been served upon the Seller by any governmental agency notifying the Seller of any violations of statute, order, ordinance, rule, requirement, or regulation which would affect the Total Property or any portion thereof. f. The Total Property is not subject to a lien for Medical Assistance or other public assistance. g. Seller has no knowledge, nor does Seller have reason to know, of any condition at, on, under or related to the Protected Property presently or potentially posing a significant hazard to human health or the environment (whether or not such condition constitutes a violation of Environmental Laws, as previously defined). h. Seller has no knowledge, nor does Seller have reason to know, of any production, use, treatment, storage, transportation, or disposal of any Hazardous Substance (as previously defined) on or under the Protected Property, nor has there been any release or threatened release of any Hazardous Substance, pollutant or contaminant into, upon or over the Protected Property or into or upon ground or surface water at the Protected Property or within the immediate vicinity of the Protected Property. i. Seller is in compliance with all laws and regulations in connection with any handling, use, storage or disposal of Hazardous Substances at the Protected Property, including the maintenance of all required permits and approvals. j. Seller is in compliance with all Environmental Laws with respect to the Protected Property. k. Seller has disclosed to Buyer in writing the location of any individual sewage treatment systems located on the Protected Property. I. Seller has disclosed to Buyer in writing the location of any individual wells located on the Protected Property. m. To the best of Seller's knowledge, methamphetamine production has not occurred on the Protected Property. Each of the above representations is material and is relied upon by Buyer. Except insofar as the Seller has advised Buyer in writing to the contrary, each of the above representations shall be deemed to have been made as of Closing and shall survive Closing. At Closing, if Buyer so requests, the Seller shall deliver to Buyer a certificate in a form satisfactory to Buyer stating that each of the above representations is true and correct as of Closing. If, before the Closing, the Seller discovers any information or facts that would materially change these warranties and representations, the Seller shall immediately give notice to Buyer of those facts and information. If any of the foregoing representations and warranties ceases to be true before the Closing, the Seller will promptly remedy the problem, at the Seller's sole cost and expense, upon receipt of notice by Buyer. If the problem is not remedied before Closing, Buyer may elect to either: (i) terminate this Agreement in which case Buyer shall have no obligation to purchase the Combined Easement, or (ii) 5 defer the Closing until such problem has been remedied. Buyer's election in this regard shall not constitute a waiver of Buyer's rights in regard to any loss or liability suffered as a result of a representation or warranty not being true nor shall it constitute a waiver of any other remedies provided in this Agreement or by law or equity. 10. CONSERVATION EASEMENT AND RTC EASEMENT. Buyer shall prepare the Combined Easement in substantially the same form as the instrument attached to this Agreement as Exhibit B. Buyer shall provide the Combined Easement to the Seller at least seven (7) days prior to the Closing Date for review. The Seller shall deliver possession of the fully executed Combined Easement on or before the Closing Date. 11. PROPERTY REPORT. Buyer shall prepare an Initial Property Report describing the current condition of the Protected Property and providing the basis for annual monitoring reports. Buyer shall provide the Initial Property Report to the Seller for review at least seven (7) days prior to the Closing Date. Seller, following its review and approval, agrees to deliver signed copies of the Property Report on or before the Closing Date and shall sign an Acknowledgement of Condition, certifying that the Property Report accurately reflects the condition of the Protected Property on the Closing Date. Secondary Property Reports will be completed for the Protected Property at such time as when the proposed phased residential development around the Protected Property is substantially completed. 12. NATURAL RESOURCE MANAGEMENT PLAN. Buyer, Seller, and City of Rosemount (hereinafter referred to as the "City") shall jointly prepare a preliminary Natural Resource Management Plan (hereinafter referred to as the "Management Plan") describing the current ecological conditions of the Protected Property and general recommendations for establishing preferred plant communities to be implemented on the Protected Property after the Closing Date. The Buyer shall provide the Management Plan to the Seller at least seven (7) days prior to the Closing Date. If Buyer is not the fee owner of the Protected Property post-closing, it is not required to join in the Management Plan. 13. CONDITIONS PRECEDENT. a. In addition to the title examination, this Agreement shall, at Buyer's option, be void and neither Party shall be liable for damages to the other Party if the following contingencies are not satisfied: i. The Dakota County Commissioners adopting a resolution authorizing Buyer's purchase of the Combined Easement on the Protected Property from Seller; ii. Final approval by the City and recording of the plat for Bella Vista including dedication of public right of way permitting access to all portions of the Protected Property; and iii. The completion of due diligence by Buyer on or before the Due Diligence Deadline and Buyer determining in its sole discretion that the condition of the 6 Protected Property is acceptable. The Seller agrees that Buyer shall have the right to inspect and investigate the Protected Property at reasonable times and to perform any tests it deems necessary, including tests to evaluate the environmental condition of the Protected Property. Buyer shall coordinate any such inspection to accommodate the schedule of Seller, who shall not unreasonably withhold permission to inspect or investigate. iv. Metropolitan Council approving an Acquisition Opportunities Funding Grant to Buyer in amount equal to seventy-five (75) percent of the total cost of the RTC Easement acquisition to Buyer, including closing costs and due-diligence costs, on or before September 25, 2013; b. This Agreement shall, at Seller's option, be void and neither Party shall be liable for damages to the other Party if: i. Seller does not close on the sale of all of Bella Vista, other than the portions subject to this Agreement and the Agreement for the Purchase of the Combined Easement between Seller and Buyer executed contemporaneously with this Agreement, to U.S. Home Corporation before or simultaneously with the Closing herein, and ii Buyer does not contemporaneously close on the purchase of the Combined Easement referenced in Section 13(b)i. iii. The City has not agreed to accept a deed of conveyance from Seller for the Y 9 P Y Protected Property (subject to the Combined Easement) on terms acceptable to Seller. 14. CLOSING. The Closing shall occur on the Closing Date at Title Company's office. The time of day will be scheduled by the Title Company so as to be mutually acceptable to Buyer and Seller. Seller and Buyer may mutually agree in writing to alter the Closing Date. 15. RISK OF LOSS. Until the completion of closing, all risk of loss is on the Seller. If the Protected Property is damaged prior to closing, Seller shall give the Buyer notice within five (5) business days after such damage has occurred. The notice shall include Seller's proposal for repairing the damage. From the date t hat B uyer receives Seller's notice, Buyer shall have thre e (3) business days to inspect the Protected Property and an additional (2) business days to determine if the damages and the Seller's proposal for repairs are acceptable to Buyer. If Buyer does not accept Seller's proposal for repairs within the five(5)business day period,this Agreement shall be void. 16. REMEDIES UPON DEFAULT. In the event that the Seller defaults in the performance of any of its obligations under this Agreement, Buyer shall, in addition to any and all other remedies provided in this Agreement or at law or in equity, have the ri ht of specific ecific performance against the Seller.9 9 P 7 In the event that Buyer defaults in the performance of any of its obligations under this Agreement, the Seller shall have, as its sole and exclusive remedy, the right to cancel this Agreement as permitted by MINNESOTA STATUTES§§559.21 and 559.217. 17. NO BROKER'S COMMISSION. The Buyer has not used a real estate broker in connection with this Agreement or the transaction contemplated by this Agreement and the parties agree that the Buyer is not responsible for any portion of a broker's commission or finder's fee related to the Seller. In the event that the Seller has used a broker or any person asserts a claim for a broker's commission or finder's fee related to the Seller, that the Seller will indemnify and hold the Buyer harmless from and against the claim and this indemnification shall survive Closing or any earlier termination of this Agreement. 18. WAIVER OF DISCLOSURE. Unless otherwise required herein, Buyer waives the written disclosures required under MINNESOTA STATUTES§§513.52 to 513.60. 19. MISCELLANEOUS. a. Performance. The Parties hereto agree that time is of the essence in the performance of this Agreement. b. Notices, Notices to be given under this Agreement shall be in writing and sent by registered or certified mail, addressed to the Parties at the following addresses: With respect to Buyer: Alan Singer, Land Conservation Manager, or Successor Dakota County 14955 Galaxie Avenue Apple Valley, MN 55124 With respect to Seller: James Knutson RIOU Property 2, LLC 1550 Audubon Road Chaska, MN 55318 c. Non-Joint Venture. The Parties agree that nothing contained herein shall be considered a partnership or joint venture under taken by the Parties. d. Minnesota Law. This Agreement shall be governed by the laws of the State of Minnesota. Venue for all legal proceedings arising out of this Agreement, or breach thereof, shall be in the state or federal court with competent jurisdiction in Dakota County, Minnesota. e. Representation by Counsel. The Seller understands that the Buyer and the County Attorney's Office do not represent the Seller in this matter. The Seller has had an 8 opportunity to review the terms of this Agreement with Seller's own legal counsel, whether Seller has elected to consult with counsel or not. Seller has read and understands the terms of this Agreement and agrees to be bound by the terms of this Agreement. f. Entire Agreement. This Agreement, along with any exhibits, appendices, addendums, schedules, and written amendments hereto, encompasses the entire agreement of the Parties, and supersedes all previous understandings and agreements between the Parties, whether oral or written. g. Amendments. Any amendments or modifications to this Agreement shall be in writing and shall be executed by the same Parties who executed the original Agreement or their successors. h. Severability. Each provision of this Agreement is severable from any other provision of this Agreement. Should any provision of this Agreement for any reason be unenforceable, the balance of the Agreement shall nonetheless be of full force and effect. i. Headings. The headings used in this Agreement are for convenience of reference only and shall not operate or be construed to alter or affect the meaning of any of the provisions in this Agreement. j. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one and the same agreement. IN TESTIMONY WHEREOF, the Parties hereto have caused this instrument to be executed the day and year first recited herein. SELLER: RIOU PROPERTY 2, LLC BY: James Knutson Its: Date of Signature 9 BUYER: DAKOTA COUNTY By: Brandt Richardson, County Administrator Date of Signature Approved as to form: /s/Thomas R. Donely Assistant County Attorney Date of Signature: September 16, 2013 KS-12-325 Approved by Dakota County Board Resolution No. 13-393 10 EXHIBIT A DAKOTA COUNTY GREENWAYS PROGRAM LEGAL DESCRIPTION OF THE PERMANENT MUNICIPAL GREENWAY CONSERVATION EASEMENT TRACT NO.408 Outlot A and B, Bella Vista, Dakota County, Minnesota,according to the plat on file and of record with the Dakota County Recorder 1,101CO3 4-lagi 1 EOM./at13 all 'If im ..., ..0 .--) - ---', ,..41-4.....-„1:-.. .2%,,44404•. , '--;/plei I Mgt" i of - MEP ,------ ) 1 I 1 . , . i . : . vioup. m:, i r $ 1 1 , $ 1 f 1 i 0 1 0 11 1 0 I i I i 4 . ---------- •1...- , t 1 F t # 1 1 i I , B101.1110 0 I i 1 1 ,..,At'014.4413044 4 ! 4 i ,44/1 i -. ggix3 , I 44 1 41 4,4, i i --_, / , i i i------T-------,-2-y- '----N,, '',Lt sioaygogiaseg irm, ivett-a tfavaS Sid 4 wewase3 uotiemesuoo emu 41 eelo 0-ri iz adoad naIN 4—V.1.181HX3 _..........._ EXHIBIT B COMBINED PERMANENT MUNICIPAL GREENWAY CONSERVATION EASEMENT AND REGIONAL TRAIL CORRIDOR EASEMENT TRACT No.408 This Combined Permanent Municipal Greenway Conservation Easement and Regional Trail Corridor Easement ( hereinafter referred to as the "Combined Easement") is granted this day of , 2013, by RIOU Property 2, LLC, a Minnesota limited liability company (hereinafter referred to as the "Grantor"), having an address at 1550 Audubon Road, Chaska, Minnesota 55318, to the County of Dakota (hereinafter referred to as the "Grantee"), a political subdivision of the State of Minnesota, having a mailing address at 1590 Highway 55, Hastings, Minnesota 55033, as set forth herein. RECITALS A. Land Ownership. Grantor is the owner in fee simple of approximately 142 acres of real property(hereinafter referred to as the"Property") located in Dakota County, Minnesota. B. Protected Property. Grantor is willing to grant a permanent municipal conservation easement on approximately 37.1 acres of the Property, legally described in Exhibit A, and generally depicted in Exhibit A-1 attached hereto (hereinafter referred to as the "Protected Property") and within the Protected Property, Grantor is willing to grant a regional trail corridor easement on an approximately 100-foot wide corridor that may be narrower or wider in certain areas depending on final corridor design, totaling approximately 8.5 acres, located within the Protected Property, (hereinafter referred to as the "RTC Easement Area"), the exact location of which the Grantee will legally described, depicted and record the description within one year from the date of this agreement. The Protected Property includes a combination of wetlands, two ponds, small woodlands, and both open and cultivated fields. The Combined Easement is subject to the following encumbrances: 1. Easements for drainage and utilities as shown on the recorded plat of Mallard Pond 2nd Addition, filed on November 8, 1995, as Document No. 1311954. 2. Easements for utility, drainage, ponding and street purposes in favor of the City of Rosemount, dated June 15, 2006, and filed June 27, 2006, as Document No. 2441045. 3. Pipeline Easement in favor of Northern Natural Gas Company dated May 15, 2007, and filed March 28, 2008, as Document No. 2581130. Said Pipeline Easement was rerecorded to correct the legal description contained in the Pipeline Easement filed June 7, 2007, as Document No. 2522458. 4. Easement in favor of Northern Natural Gas Company dated September 1, 1932, filed November 10, 1932, as Document No. 131561 in Book 193 of Deeds, page 462; as modified by Modification and Amendment of Easement Grant dated July 21, 1967, and filed August 14, 1967, as Document No. 340689 in Book K of M.R., page 184; as partially released by Partial Release of Easement dated May 27, 2008, and filed May 29, 2008, as Document No. 2593533. 5. Easement for pipeline purposes in favor of Williams Bros. Pipe Line Company, as described in Partial Release of Right of Way dated July 18, 1967, and filed September 6, 1967, in Book K of M.R., page 240. 6. Subject to the rights of the State of Minnesota and the Department of Natural Resources, if any, in and to the wetlands as shown on available maps and/or as depicted on the recorded plat. 7. Easements for drainage and utilities as shown on the plat of Bella Vista. C. Conveyance of Protected Property. Immediately upon granting the Combined Easement, Grantor will convey fee title to the Protected Property to the City of Rosemount (hereinafter referred to as the "City") and the City will accede to the obligations of the Grantor herein. D. Conservation Values. The Protected Property has significant scenic, natural, aesthetic, scientific and educational values as a"relatively natural habitat of fish, wildlife, or plants or similar ecosystem," as that phrase is used in Section 170(h) (4) (A) (ii) of the Internal Revenue Code and in the regulations promulgated thereunder (collectively, the "Conservation Values"), which the parties desire to conserve. E. Property Reports. Grantee has prepared an initial baseline documentation report (hereinafter referred to as the "Initial Property Report") describing the natural and open space characteristics, aesthetic features, physical condition, and present uses of the Protected Property at the time of conveyance of the Combined Easement. Secondary Property Reports will be completed for the Protected Property at such time as when the proposed phased residential development around Horseshoe Lake is substantially completed (hereinafter referred to as the "Secondary Property Reports.") F. Natural Resource Management Plan. Grantee and Grantor have prepared, reviewed and approved a preliminary Natural Resource Management Plan that describes the current and preferred natural resource conditions, goals and planned recreational amenities and activities for the Protected Property (hereinafter the preliminary Natural Resource Management Plan, together with any updates, amendments, revisions or replacements thereof, is referred to as the"Management Plan"). NOW THEREFORE, in consideration of the facts recited above, the mutual covenants, conditions, and restrictions contained herein, and the payment of THREE HUNDRED FIFTY THOUSAND DOLLARS ($350,000) by Grantee to Grantor, Grantor hereby grants and conveys to Grantee the Combined Easement in perpetuity that runs with the Protected Property upon the following terms and conditions: 2 1. PERMANENT MUNICIPAL GREENWAY CONSERVATION EASEMENT 1.1 GRANT OF EASEMENT AND PURPOSE. Grantor hereby grants to Grantee a permanent municipal greenway conservation easement over the Protected Property (hereinafter referred to as the "Conservation Easement") for the purpose of permanently retaining the Protected Property substantially unchanged from its present condition as natural and open space and to prevent any use of the Protected Property that will significantly impair or interfere with the Conservation Values of the Protected Property. Grantor intends that the Conservation Easement will confine the use of the Protected Property to activities that are consistent with the purpose of the Easement. However, more restrictive applicable Federal, State or local laws shall prevail in determining permitted uses of the Protected Property. 1.2 CONSERVATION EASEMENT RESTRICTIONS AND COVENANTS. Any activity on or use of the Protected Property inconsistent with the purpose of the Conservation Easement is prohibited. Without limiting the foregoing, the following activities and uses are expressly prohibited: A. Industrial, Commercial or Residential Activity. There shall be no industrial, commercial, or residential activity undertaken or allowed on the Protected Property. No right of ingress or egress across or upon the Protected Property shall be allowed or granted, if that ingress or egress is used in conjunction with industrial or commercial activity. B. Structures and Improvements. There shall be no temporary or permanent buildings, or permanent structures of any kind placed or constructed on the Protected Property, except as set forth below or specifically provided for in the Management Plan. i. Streets and Parking Area. Except as described in Section 1.2.ii below, there shall be no construction of streets or other rights-of-way for motorized use on the Protected Property. Grantor may construct and maintain a parking area connected to the future street bisecting the Protected Property (the street is generally depicted as the area between Outlots A and B in Exhibit A-1) for the public accessing and using of the Protected Property as contemplated herein. ii. Utility Services. The construction, installation, maintenance, repair, replacement, removal, and relocation of existing or new electric, gas, water facilities, sewer lines and/or other public or private utilities, including telephone or other communication services over or under the Protected Property for the purpose of providing electrical, gas, water, sewer, or other utilities to serve improvements outside of the Protected Property are permitted. Construction, operation, maintenance, repair, and replacement of storm water management facilities are permitted. Storm water management facilities include drainage ways, pumps, lift stations, pipelines, dams, weirs and storm water ponds for management of quantity and quality of storm water and other appurtenant and related improvements such as electrical service, together with non-public driveway and parking facilities for maintenance access to storm water facilities. Planned facilities are generally depicted in Exhibit B. iii. Paths/Trails. Construction, operation and maintenance of the Regional Trail to be constructed by Grantee as defined in Section 2.1 and other paved paths and trails as may be constructed or approved by the Grantor linking the surrounding neighborhood to the regional trail or to provide paved access to other portions of 3 the Protected Property shall be allowed if it is in accordance with the Management Plan and is approved by the Grantee. iv. Other Greenwav Recreational Amenities. Construction, installation and maintenance of recreational improvements and structures such as restrooms, bike racks, retaining walls, drinking fountains, sun shelters picnic shelters and tables, benches, portable toilets, informational kiosks, lighting, paths, and associated landscaping, including turf grass, shall be allowed with the approval of the Grantee. Grantor shall ensure that the Protected Property is restored to a condition consistent with the purpose of the Combined Easement in a timely and appropriate manner following any construction, maintenance, repair, replacement, removal, or relocation of any improvements authorized by, or pursuant to, this section. C. Control and Management of Vegetation and Pests. Grantor shall maintain the Protected Property in compliance with the Management Plan. There shall be no removal, destroying, burning, cutting, mowing or altering of trees, shrubs and other vegetation on the Protected Property except as provided in by this Combined Easement or the Management Plan. i. Control of Harmful Insects and Invasive Species. Activities to prevent or control harmful insects, invasive species, noxious weeds, diseases, personal injury, or property damage are permitted, if provided for in the Management Plan. There shall be no plant or animal species knowingly and willfully introduced on the Protected Property, except non-invasive, native and non-native species consisted with the Conservation Values and as provided in the Management Plan. ii. Pesticides and Herbicides. There shall be no application of pesticides or herbicides on the Protected Property, except those that are necessary as part of approved practices specified in the Management Plan. Pesticide or herbicide use must comply with all applicable Federal and State regulations and Best Management Practices. Labeled and approved herbicides and pesticides may be used by spot applications to control State/County-designated noxious weeds, invasive woody species or pest insect infestations, provided their use is designed to minimize the impact on the Conservation Values of the Protected Property. Broadcast spraying of herbicides or pesticides, including aerial applications, is permitted, if known infestation is determined to be a threat to human, animal and/or plant community health, provided that, at a minimum, the following conditions are met: (a) spot treatment is not practical because of the severity of the infestation; (b) the timing of application is scheduled to minimize damage to non-target species; and (c) the type of herbicide or pesticide used has the least impact on non-target species while still being effective in controlling target species. D. Domestic Animals. Domesticated dogs and other domesticated animals are permitted on the Protected Property in accordance with local ordinances. E. Surface Alteration. There shall be no change of the topography of the Protected Property in any manner except as reasonably required in the course of permissible activities included in this Combined Easement or uses in accordance with the Management Plan. Removal of topsoil is prohibited. F. Water. No activities or uses of the Protected Property that cause soil erosion or are detrimental to water quality are permitted. 4 G. Waste Disposal. There shall be no storage, accumulation, processing or disposal of trash, non-compostable garbage, debris, unserviceable vehicles, unused equipment, hazardous or toxic substances or other unsightly or offensive material on the Protected Property. Use of the Protected Property for dumping solid or hazardous waste is prohibited. H. Motorized Vehicles. Use of motorized vehicles is prohibited, except for the installation and management of, landscaping, utilities and public improvements authorized under the Combined Easement, or for natural resource management, law enforcement, public safety, and emergency purposes and to access public parking within the Protected Property. 1. Signs. Commercial signs, billboards, and outdoor advertising structures may not be displayed on the Protected Property. Informational signage is permitted and is limited to the following purposes: i. Naming the owner of the Protected Property; ii. Announcing the existence of this Combined Easement; iii. Providing interpretive and directional information; iv. Providing the name and address of Grantor, Grantee, project partners, and/or funding sources; v. Delineating the boundaries of the Protected Property in order to prohibit non- permitted activities; vi. Providing information with regard to on-site uses and activities permitted by this Combined Easement, for which approval will not be unreasonably withheld, conditioned, or delayed. For all signs permitted by this section, the location, number, size, and design must not significantly diminish the Conservation Values of the Protected Property, and must be approved by the Grantor and Grantee. 2. REGIONAL TRAIL CORRIDOR EASEMENT 2.1 GRANT OF EASEMENT AND PURPOSE. Grantor hereby grants to Grantee a perpetual regional trail corridor easement over a portion of the Protected Property(hereinafter referred to as the "RTC Easement") for the purpose of constructing, operating, maintaining, altering, repairing, replacing, and/or removing a ten-foot wide paved regional recreational trail (hereinafter referred to as the "Regional Trail") and for the purpose of constructing, installing, operating and maintaining a below ground sanitary sewer facility, if needed by the Metropolitan Council (hereinafter referred to as the"Council")for a future regional wastewater conveyance corridor (hereinafter referred to as the "Wastewater Facilities") on, within and under an approximate 100-foot wide regional trail corridor that may be narrower or wider in certain areas depending on final corridor design anywhere within the Protected Property (hereinafter referred to as the"RTC Easement Area"). 2.2 DESCRIPTION OF RTC EASEMENT AREA Within 12 months of the grant of this Combined Easement, Grantee shall record a legal description and depiction of the exact location of the RTC Easement on the Protected Property to be attached as Exhibit D. The Grantor and its successor or assigns, having granted the right to encumber the Protected Property with the RTC Easement, consents to the recording an Exhibit D 5 without amendment to the Combined Easement being executed by Grantor, its successor or assigns, so long as the terms of the Combined Easement are not modified. 2.3 METROPOLITAN COUNCIL FUNDING RESTRICTIONS AND COVENANTS The Parties acknowledge that the Grantee's purchase of this RTC Easement is funded, in part, by a grant from the Council, which requires additional restrictions on the RTC Easement Area for eligibility, and hereby place such restrictions and covenants on the RTC Easement Area in addition to the restrictions placed on the Protected Property as follows: A. Conveyances. Grantee may not sell, lease, or mortgage the RTC Easement Area or any portion thereof, or otherwise convey or grant any easement or allow any other encumbrance to be placed against the RTC Easement Area or restrict the use thereof unless the written approval of the Council or its successors is duly filed and recorded at the time of the filing and recording of the instrument to which such approval pertains. B. Regional Purpose. The RTC Easement Area shall be used solely for regional recreational open space purposes as those purposes are from time to time defined by the Council or its successors, unless the Council or its successors shall consent to the other use or uses by written instrument duly filed and recorded and designating the nature, extent, and duration of the use for which such consent is given. Without limiting the foregoing, the Regional Trail and Wastewater Facilities together with uses such as benches, restrooms, parking lots, bike racks, trail connections, information kiosks, retaining walls, drinking fountains, sun shelters, picnic shelters and tables, and fences are permitted uses for regional recreational open space purposes. C. Wastewater Facilities. The Grantor acknowledges that as a condition to receive funding from the Council, Grantee must grant the Council the option to construct, operate and maintain Wastewater Facilities in the RTC Easement Area. Grantor consents to and permits the Grantee to assign the any rights necessary to accomplish the construction, operation and maintenance of the Wastewater Facility (hereinafter referred to as the "Wastewater Facility Rights") to the Council, its successors or assigns. Upon written request by and at no cost to the Council, Grantee will execute and deliver to the Council an assignment of rights in the Combined Easement allowing the Council to construct, install, operate and maintain the Wastewater Facilities over, under and across the RTC Easement Area substantially in the form of the assignment attached hereto and incorporated herein as Exhibit C for the location or locations described by the Council in its written request to Grantee. The Parties acknowledge that pursuant to a Grant Agreement entered or to be entered between the Council and the Grantee, Council may exercise its contractual right to the Wastewater Facilities Rights on one or more occasions. The Grantee agrees that the Wastewater Facilities Rights may not be exercised unless assigned to the Council, its successors or assigns. 3. GRANTOR'S RESERVED RIGHTS. Grantor reserves the right to use the Protected Property for all purposes that are not expressly restricted or prohibited herein and are not inconsistent with the purposes of the Combined Easement. Grantor agrees to notify Grantee in writing before exercising any reserved right that may have an adverse impact on the purposes of the Combined Easement. Without limiting the applicability of the foregoing, Grantor reserves the following rights: 3.1. RECREATIONAL OR EDUCATIONAL ACTIVITIES. Grantor reserves the right to engage in low-impact, recreational or educational activities requiring no significant alteration of the land and posing no threat to the purposes of the Combine Easement, provided that these activities do not negatively impact the Conservation Values of the Protected Property as determined by Grantee. 6 3.2. CONVEYANCE. Grantor may sell, give, mortgage, lease or otherwise convey all or a portion of the Protected Property, provided that such conveyance is subject to the Combined Easement and prior written notice is provided to Grantee in accordance with Section 5.17, except no written notice is required for the conveyance of the Protected Property to the City. Upon conveyance of all or a portion of the Protected Property, any new deed shall reference the Combined Easement, except no such reference is required in a deed of conveyance of the Protected Property to the City. 4. RIGHTS AND REMEDIES OF GRANTEE. In order to accomplish the purposes of the Combined Easement, Grantee shall have the following rights and remedies: 4.1. REMEDIES AND ENFORCEMENT. In the event that Grantee becomes aware of a violation of the terms of the Combined Easement, Grantee shall give notice to Grantor in accordance with Section 5.17 of such violation and request corrective action sufficient to abate such violation and restore the Protected Property to its previous condition. Failure by Grantor to discontinue, abate or other correct the violation within thirty (30) days after receipt of such notice shall entitle Grantee to enforce by proceedings at law or in equity the provisions of the Combined Easement. The Grantee shall not waive or forfeit the right to take action as may be necessary to ensure compliance with the terms and conditions of the Combined Easement by any prior failure to act. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the Conservation Values of the Protected Property, Grantee may pursue its remedies under this Section without prior notice to Grantor or without waiting for the period for cure to expire. Grantee shall be entitled to seek expedited injunctive relief to enforce its rights with respect to the Protected Property, and Grantor waives any bond requirement otherwise applicable to any petition for such relief. Grantor shall notify Grantee of any occurrence which would adversely affect or interfere with the purposes of the Combined Easement, whether caused by the acts or omissions of Grantor or third parties. 4.2. RIGHT OF ENTRY. Grantee, or its designated representative, shall have the right to enter the Protected Property, in a reasonable manner, with advance notice to Grantor and at reasonable times, for the purpose of ensuring that the Combined Easement and the Management Plan are being implemented appropriately, and as needed to exercise its contingent rights, for the following purposes: A. Inspecting the Protected Property to determine if Grantor is complying with the provisions of the Easement; B. Obtaining evidence for the purpose of seeking judicial enforcement of the Combined Easement; C. Posting signs for the purpose of promoting provisions of the Combined Easement, with Grantor's approval as to the size and location of signs; D. Inspecting the Protected Property to determine if Grantor is complying with the provisions of the Management Plan; E. Removing invasive plants or animals, as agreed on by Grantor and Grantee. Such activities by Grantee shall not relieve Grantor of the responsibility of removing and controlling invasive species in accordance with appropriate Federal, State and County laws and regulations. 7 F. Construct, operate, maintain, repair and/or remove the Regional Trail; and G. Construct, operate, maintain, repair and/or remove the Wastewater Facilities. The Protected Property can be accessed directly from public property and platted public right-of-way generally depicted in Exhibit A-1. Unless there is an emergency, Grantee will provide advance notice of its need for access, will discuss with Grantor the most appropriate access route, and will minimize any damage to Grantor's property by selecting appropriate vehicle(s) and weather conditions for obtaining access to the Protected Property. All notices to Grantor under this section may be made either in writing or verbally, at the discretion of the party providing the notice. 4.3. LIMITATION OF GRANTEE'S RIGHTS. Nothing contained herein shall give rise to any right or ability of Grantee to become the owner, manager or operator of the Protected Property. 4.4. CONSENT TO OTHERWISE PROHIBITED ACTIVITIES; ACTIVITIES REQUIRING CONSENT. Grantee may consent to activities otherwise prohibited or requiring consent under Sections 1 and 2 only as provided in this section and with regards to the RTC Easement, subject to the authorization from the Council as specified in Section 2.3 B. Grantor must request permission for such an activity in writing in sufficient detail to allow Grantee, and the Council as may be required by Section 2.3B, to judge the consistency of the activity with the purposes of this Combined Easement. Grantee shall make reasonable efforts to respond within 60 days of receipt of such a request. Grantee, and the Council as may be required by Section 2.3B, may give its permission only if it determines, in its sole discretion, that the activity: (a) does not violate the purposes of the Combined Easement; and (b) either enhances or does not significantly impair the Conservation Values of the Protected Property. 4.5. CONTRACTORS, AGENTS AND EMPLOYEES. The Grantee may use its contractors, agents and employees to do whatever is necessary for enjoyment of the rights granted herein including the right to enter the Protected Property for purposes provided for by this Combined Easement 5. GENERAL PROVISIONS. 5.1. PERPETUAL BURDEN. The Combined Easement shall run with and burden the Protected Property in perpetuity and shall bind Grantor, Grantor's successors and assigns. 5.2. Natural Resource Management Plan. All natural resource management practices on the Protected Property shall be in accordance with a jointly developed and approved preliminary and final Management Plan. A preliminary Management Plan, that describes the current and preferred natural resource conditions, goals and recreational amenities and activities for the Protected Property has been completed and approved by Grantee, Grantor and City of Rosemount prior to conveying the Combined Easement. The final Management Plan must be completed and approved by Grantee and Grantor within six months of the date of execution of the Combined Easement. Grantee and Grantor agree to consult with one another periodically with respect to updating the Management Plan, and further agree that the Management Plan may be revised or modified as necessary to reflect changed conditions or circumstances, so as to assure that the original intent and purposes of the Combined Easement are carried out in perpetuity. Grantee shall be responsible for any modifications to the Management Plan, which shall not contradict the terms of this Combined Easement, and which shall take effect only upon written agreement by both Grantee and Grantor. Grantee and Grantor will each retain an updated copy of the Management Plan. 5.3. EASEMENT DOCUMENTATION. Grantor and Grantee agree that the physical condition, present uses, and the Conservation Values of the Protected Property at the time of 8 conveyance of the Combined Easement are documented in an Initial Property Report. Secondary Property Reports, prepared upon completion of the phased residential development around the Protected Property, are not intended to preclude the use of other information and evidence to document the condition of the Protected Property in the event of any future enforcement issue. Copies of the Initial and Secondary Property Reports shall be maintained with the Grantor and respective successors and assigns, at the office of Grantee and may be used by Grantee in any enforcement action. 5.4. GRANTOR'S ACCESS. Nothing in the Combined Easement shall be construed to preclude Grantor's own right to access all portions of the Protected Property, provided this access does not degrade the purpose of the Combined Easement or contradict the provisions of the Management Plan. 5.5. ASSIGNMENT. The Combined Easement is in gross and may be assigned or transferred by Grantee in whole or in part, and such transfer shall be duly recorded. Grantee agrees that, if it transfers or assigns its interest in the Combined Easement, the following requirements shall apply: A. The transferee or assignee will be required to carry out in perpetuity the purposes that the Combined Easement were originally intended to advance. B. Grantee will notify Grantor of any assignment within thirty (30) days of the assignment and will provide the Grantor with the name and address of the new holder. C. Grantee further agrees that no assignment, sale, lease, mortgage, or other conveyance, nor the creation of any easement, restriction, or other encumbrance by the Grantee against the RTC Easement shall be valid for any purpose unless the written approval of the Council, its successors or assigns, is duly filed and recorded at the time of the filing and recording of the instrument to which such approval pertains. Assignment of the Wastewater Facility Rights by Grantee to the Council is expressly permitted pursuant to Section 2.3. 5.6. DISSOLUTION OF GRANTEE. In the event of the dissolution of Grantee, Grantee's interest will be assigned only to a public body or to a private non-profit organization qualified to hold and monitor the Combined Easement. 5.7. SUBSEQUENT TRANSFERS BY GRANTOR. Unless the Combined Easement is extinguished, as set forth below, Grantor agrees that the terms, conditions, restrictions and purposes of the Combined Easement will either be incorporated by reference or inserted by Grantor in any subsequent deed or other legal instrument by which Grantor divests itself of any interest in all or part of the Protected Property, except for a conveyance of the Protected Property to the City. Other than for a transfer of the Protected Property to the City, Grantor agrees to notify Grantee of such conveyance in writing by certified mail within fifteen (15) days after closing. If ownership of the Protected Property is transferred from Grantor to another, the Grantee shall be notified of any such conveyance in writing by certified mail within thirty (30) days. Upon conveyance of the Protected Property to the City, the City shall be considered the "Grantor" (in accordance with Sections 5.1 and 5.16), and RIOU Property 2, LLC shall be released from all covenants, representations, warranties and any obligations created by this Easement, save and except liabilities arising solely under Section 5.10 herein for warranty of title and Section 5.12 herein for actions, conduct or conditions which existed prior to the date of the conveyance of the Protected Property to the City. 9 5.8. AMENDMENT. The Combined Easement may be amended by written agreement between Grantor and Grantee; provided, however, any amendment shall be consistent with the purposes of the Combined Easement and shall meet the requirements of applicable law. The forgoing notwithstanding, in accordance with Section 2.2, the Grantor, having granted the right to encumber the Protected Property with the RTC Easement, consents to the recording to the amendment to add the RTC Easement Area as Exhibit D without said amendment being executed by Grantor, its successor or assigns, so long as the terms of the Combined Easement are not modified. 5.9. EXTINGUISHMENT. The Combined Easement may be extinguished only if: A. Circumstances arise that make the continued use of the Protected Property in a manner consistent with the conservation purposes of this Easement is impossible or impractical. In this event, the Combined Easement may only be extinguished through a judicial proceeding. B. The power of eminent domain is properly exercised by a higher governmental authority. If the Combined Easement is extinguished, the Grantee shall be compensated by the fee owner of the Protected Property at the fair market value of the Combined Easement at the time of extinguishment, as determined by an independent fair market appraisal using the Uniform Standards of Professional Appraisal Practices. 5.10. TITLE WARRANTY. Grantor hereby warrants and represents that Grantor is the fee simple owner of the Protected Property and has good right to grant and convey the Combined Easement, that the Protected Property is free and clear of any and all encumbrances except those identified herein, and that Grantee and its successors and assigns shall enjoy all of the benefits derived from and arising out of the Combined Easement. Any present or future mortgage on the Protected Property has been or will be subordinated to the Combined Easement. 5.11. GENERAL INDEMNIFICATION. Grantor shall indemnify and hold harmless Grantee, its employees, agents, and assigns for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties, suits, proceedings, actions, and costs of actions, sanctions asserted by or on behalf of any person or governmental authority, and other liabilities (whether legal or equitable in nature and including, without limitation, court costs, and reasonable attorneys' fees and attorneys' fees on appeal) to which Grantee may be subject or incur relating to the Protected Property, which may arise from, but is not limited to, Grantor's negligent acts or omissions or Grantor's breach of any representation, warranty, covenant, agreements contained in the Combined Easement, or violations of any Federal, State, or local laws, including all Environmental Laws as defined in Section 5.12. In the event that the successor or assign of the Grantor is a political subdivision of the state covered by Minnesota Tort Claims Act, Minnesota Statutes, Chapter 466, Grantor will not be obligated to indemnify Grantee in any amount in excess of the limitation of liability as set forth in Minnesota Statutes Section 466.04, as may be amended. 5.12. ENVIRONMENTAL CONDITION AND COMPLIANCE WITH ENVIRONMENTAL LAWS. A. Compliance with Environmental Laws. Grantor represents that, to the best of its knowledge, it is in compliance with, and shall remain in compliance with, all applicable environmental laws ("Environmental Laws"). "Environmental Law" or "Environmental Laws" means any and all Federal, State, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or 10 requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) concerning air, water, solid or hazardous waste, hazardous materials, worker and community right-to-know, hazard communication, noise, radioactive material, resource protection, subdivision, inland wetlands and watercourses, health protection and similar environmental health, safety, building and land use as may now, or at any time hereafter, be in effect. B. Grantor's Indemnity. Grantor hereby promises to defend and indemnify Grantee against all litigation, claims, demands, penalties and damages, including reasonable attorneys' fees, arising from or connected with the use, deposit, or release or threatened release of any Hazardous Materials before or after the date of the Combined Easement on, at, beneath or from the Protected Property, or arising from or connected with a violation of any Environmental Laws by Grantor or any other prior owner of the Protected Property. Grantor's indemnification obligation shall not be affected by any authorization provided by Grantee to Grantor with respect to the Protected Property or any restoration activities carried out by Grantee at the Protected Property; provided, however, that Grantee shall be responsible for any Hazardous Materials contributed after the date of the Combined Easement to the Protected Property by Grantee. In the event that the successor or assign of the Grantor is a political subdivision of the state covered by Minnesota Tort Claims Act, Minnesota Statutes, Chapter 466, the provisions of said Chapter, as may be amended, shall apply to the successor or assign. The obligation of Grantor to indemnify Grantee under this paragraph shall not apply to any political subdivision of the state except with respect to the release or threatened release of hazardous materials caused by such political subdivision, its officers, agents or employees. 5.13. REAL ESTATE TAXES. Grantor agrees to pay any and all real property taxes and assessments levied by competent authority on the Protected Property. 5.14. COSTS AND LIABILITIES. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep and maintenance of the Protected Property, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee shall have no duty or responsibility to manage or maintain the Protected Property. If, however, the Protected Property is damaged by causes beyond Grantor's control, such as changes caused by fire, flood, storm, infestations, natural deterioration, the acts of third parties legally authorized to act by recorded document or other legally established rights or the unauthorized wrongful acts of third persons, Grantor and Grantee will meet and seek to arrive at an equitable solution to restore the Protected Property. Grantor shall keep Grantee's interest in the Protected Property free of any liens arising out of any work performed for, materials furnished to or obligations incurred by Grantor. 5.15. RECORDING. Grantor authorizes Grantee to record or file any notices or instruments appropriate to assuring the perpetual enforceability of the Combined Easement. 5.16. SUCCESSORS, AND ASSIGNS. The terms "Grantor" and "Grantee" as used herein shall be deemed to include, respectively, Grantor, Grantor's successors, and assigns; and Grantee, its successors and assigns. 5.17. NOTICES. Excepted as provided below, any notice required by or send pursuant to the Combined Easement shall be sent by registered or certified mail, return receipt requested, to the following individuals, or their successors, at the addresses provided or such addresses as may be specified in writing: 11 GRANTOR GRANTEE James Knutson Alan Singer, Land Conservation Manager RIOU Property 2, LLC Dakota County 1550 Audubon Road 14955 Galaxie Avenue Chaska, MN 55318 Apple Valley, MN 55124 952-443-6826 952-891-7001 j.knutson @kleinbank.com al.singer @co.dakota.mn.us However, notice provide by Grantee, or Grantee's designated representative, in exercising its right of entry under Section 4.2 may be made to the Grantor either in writing or verbally, at the discretion of Grantee. Grantor shall provide notice of any subsequent transfer in accordance with the provisions of Section 5.7. 5.18. SEVERABILITY. Each provision of the Combined Easement is severable from any other provision of the Combined Easement. Should any provision of the Combined Easement for any reason be unenforceable, the balance of the Combined Easement shall nonetheless be of full force and effect. 5.19. LIBERAL CONSTRUCTION. Any general rule of construction to the contrary notwithstanding, the Combined Easement shall be liberally construed in favor of the grant to affect the purpose of the Combined Easement. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of the Combined Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. 5.20. ENTIRE AGREEMENT. This instrument, including the Recitals and Exhibits, sets forth the entire agreement of the parties with respect to the Combined Easement and supersedes all prior discussion, negotiations, understandings, or agreements relating to the Combined Easement, all of which are merged herein. The Grantor agrees to execute or provide any additional documents reasonably needed by Grantee to carry out in perpetuity the provisions and the intent of the Combined 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. 5.21. OPPORTUNITY TO REVIEW WITH LEGAL COUNSEL. Grantor has had an opportunity to review the terms of the Combined Easement with Grantor's own legal counsel, whether Grantor has elected to consult with counsel or not. Grantor has read and understands the terms of the Combined Easement and agrees to be bound by its terms. 5.22. TERMINATION OF RIGHTS AND OBLIGATIONS. A party's rights and obligations under the Combined Easement terminate upon transfer of the party's interest in the Combined Easement or Protected Property, except that liability for acts or omissions prior to transfer shall survive transfer. 5.23. NO MERGER. Should Grantee acquire fee title to the Protected Property, no merger shall occur and the Combined Easement and the fee shall continue to be managed as separate estates. 5.24 COUNTERPARTS. The Combined Easement may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one and the same agreement. 12 IN WITNESS WHEREOF, Grantor and Grantee have executed this Permanent Municipal Greenway Conservation Easement this day of , 2013. GRANTOR RIOU PROPERTY 2, LLC BY: James Knutson Its: STATE OF MINNESOTA )SS. COUNTY OF _ ) The foregoing instrument was acknowledged before me this day of 2013, by James Knutson, the of RIOU Property 2, LLC, a Minnesota limited liability company, on behalf of the company. Notary Public 13 GRANTEE Dakota County hereby accepts the foregoing Permanent Municipal Greenway Conservation Easement this day of , 2013. Kathleen A. Gaylord, Chair Dakota County Board of Commissioners Attested to By: Kelly D. Olson, Clerk to the Board STATE OF MINNESOTA) ) SS. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before this day of , 2013, by Kathleen A. Gaylord, Chair of the Dakota County Board of Commissioners, a political subdivision of the State of Minnesota, on behalf of the County. Notary Public Approved by Dakota County Board Resolution No. 13-393 Approved as to Form: Assistant County Attorney Date: KS 12-325 Contract#C0025152 Drafted by: Alan Singer, Land Conservation Manager Dakota County 14955 Galaxie Ave. Apple Valley,MN 55124 952-891-7001 al.singeraco.dakota.mn.us 14 Exhibit A Dakota County Greenways Program Leal Description of the Permanent Municipal Greenwav Conservation Easement q p p V Tract No.408 Outlots A and B, Bella Vista, Dakota County, Minnesota, according to the plat on file and of record with the Dakota County Recorder. Exhibit A-1 Dakota County Greenways Program General Depiction of Permanent Municipal Greenwav Conservation Easement RIOU Property 2, LLC Greenway Conservation Easement Exhibit A-1 RS Section 32,114-1f Total EasementAcses 37,1 l j I ' I _ ..,,,V iii ... , . - - i» _ 141M&el.21 t ' N—c See,21 1" €z ,. ' t7NTLOT B 1ill T _3 ! 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Exhibit C ASSIGNMENT AND ASSUMPTION OF COMBINED PERMANENT MUNICIPAL GREENWAY CONSERVATION EASEMENT AND REGIONAL TRAIL CORRIDOR EASEMENT WASTEWATER FACILITIES RIGHTS (FORM) THIS INSTRUMENT, MADE THIS day of , 20 , by and between , State of Minnesota, Assignor(s), and the Metropolitan Council, a public corporation and political subdivision of the state (successor to the Metropolitan Waste Control Commission), Assignee; WITNESSETH, that Assignor was granted the Combined Permanent Municipal Greenway Conservation Easement and Regional Trail Corridor Easement( hereinafter referred to as the "Combined Easement") by RIOU Property 2, LLC, a Minnesota limited liability company dated , 2013 and recorded in the Office of the Dakota County Recorder on ,2013 as Document No. WITNESSETH, that the Combined Easement granted certain Wastewater Facility Rights, as defined therein, including, but not limited to the right to construct, operate, maintain, alter, repair, replace, and/or remove sanitary sewer and utilities for future regional wastewater conveyance corridors within the RTC Easement Area as defined by the Combined Easement. WITNESSETH, that Assignor(s), in consideration of One Dollar and other good and valuable consideration to in hand paid by Assignee, the receipt of which is hereby acknowledged, does hereby assign, bargain, sell, and convey to Assignee, its successors and assigns, the Combined Easement Wastewater Facility Rights for the following legally described area: [Insert] The above described assignment includes the rights of grantee, its contractors, agents and employees to do whatever is necessary for enjoyment of the rights granted herein including the right to enter the easement for purposes of constructing, operating, maintaining, altering, repairing, replacing, and/or removing said sewers and utilities. Assignor(s), its heirs, successors and assigns, will not erect, construct, or create any building, improvement, obstruction or structure of any kind, either above or below the surface, or stockpile soils, construction debris, or construction equipment or change the grade thereof, without the express written permission of the Grantee. Notwithstanding the aforementioned provision, the following improvements by Assignor(s), its heirs, successors, and assigns do not require Assignee's written approval: ollgnd tie;oN :paeo8 s;I;o A;uoy;ne Aq A;uno0 ay;;o;leyaq uo;uawna;sul pies pa;noexe aqs;ey; pa6palnnowloe pue 'saauoissiwwo0;o paeog A;uno0 e}owa ay;;o aley0 'paolAe0 'y ueely;em paaeadde Alleuosied `ollgnd tie;ou e aw aao;aq `E i.OZ ` ;o i(ep all auo { viONVCI 3O A1Nf1O0 SS{ { V±OS3NNIW d0 31V1S O#aoequo0 _0 :a;ea i(awo;;y A;uno0;ue;sissy :wand o;se panoaddy •oN uol;nlose peog A;uno0 e}owa Aq panoaddy paeo8 ay}o;Na910 :A8 0;pa}sa;;y saauolsslwwo0;o paeo8 ne1-10 v1ONHa AO A.LNl0O :HONOISSt/ •anoge pa;ou a;ep ay;;o se pa;noexe aq o; }uewu6issy sly; pasneo eney/sey (s)ao;uea0 pies ay; 'dO32:13HM SS3NIIM NI :ulaaaq pequosap s;y6u;uawasea ay}u6lsse pue Aanuoo o;A;uoy}ne pue;q6u In4nnel seq pue ;uawase3 paulgwo0 ay; ;o aaploy ay} s! }I leg; (s);ueuenoo (s)Jou6!ssy :pos JO ssei6 uey;aay;o 's6ulqueld aay;o JO saysnq 'sgnays 'saga; 'seoua; :ewe ;uawasee ay; my;Inn swa;I 6ulnnollo; ay} aao;saa JO aoeldaa JO 'o; a6ewep i(ue JO 40 ssol ay; ao; Aed iou !!!nn pue Jo; alglsuodsaa aq ;ou Illnn aau6lssy;ey; (s)aaa6e Agway (s)aou6lssy `aanannoH *sgnays 'saysnq '6uldeospuel 'sAennpeoa ao/pue;aaa;s '9101 6upped 'seoua; ASSIGNEE METROPOLITAN COUNCIL By: Its: Regional Administrator STATE OF MINNESOTA ) )ss COUNTY OF RAMSEY ) On the day of , 2013, before me a notary public within and for the County of Ramsey, personally appeared , the Regional Administrator of the Metropolitan Council, a public corporation and political subdivision of the State of Minnesota, on its behalf. Notary Public DRAFTED BY: Peter A. Hanf Associate General Counsel Metropolitan Council 230 East Fifth Street St. Paul, MN 55101 (651)602-1749 Dakota County Contract# AGREEMENT FOR THE PURCHASE OF A PERMANENT MUNICIPAL SHORELAND CONSERVATION EASEMENT Tract No.407 This Agreement, made and entered into on the 20th day of September, 2013 ("Effective Date"), by and between RIOU Property 2, LLC, a Minnesota limited liability company (hereinafter called the "Seller"), and the COUNTY OF DAKOTA, a political subdivision of the State of Minnesota, (hereinafter called the"Buyer"). WITNESSETH: WHEREAS, Seller is the owner of certain real property, as defined below, situated in Dakota County, Minnesota; and WHEREAS, Seller agrees to sell and Buyer agrees to buy a permanent municipal shoreland conservation easement on a portion of Seller's property; NOW, THEREFORE, in consideration of the mutual promises and covenants and agreements stated in this document, it is agreed by and between Seller and Buyer as follows: AGREEMENT 1. DEFINITIONS. As used in this Agreement, the following terms shall have the meaning provided herein: a. "Agreement" shall mean this Agreement for the Purchase of a Conservation Easement between Buyer and Seller as of the Effective Date. b. "Closing" shall mean the process by which the Buyer, Seller and Title Company execute all necessary documents for the Seller to sell and the Buyer to Buy the Conservation Easement, together with any other documents required by the Seller or the Title Company. c. "Closing Date"shall mean October 2, 2013. d. "Conservation Easement" shall mean an instrument in substantially the same form as Exhibit B, encumbering the Protected Property with a permanent municipal shoreland conservation easement. e. "Due Diligence Deadline" shall mean September 25, 2013. f. "Effective Date" shall mean the last date of execution by either of the Parties to this Agreement. g. "Environmental Law" shall mean each and every federal, state, and local law, statute, ordinance, regulation, rule, judicial or administrative order or decree, permit, license, approval, authorization or similar requirement pertaining to the protection of human health and safety or the environment. h. "Hazardous Substance" shall mean any substance which is (i) defined as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof, (iii) hazardous, toxic, corrosive, flammable, explosive, infectious, radioactive, carcinogenic, or reproductive toxicant, (iv) regulated pursuant to any Environmental Law(s), or (v) any pesticide regulated under state or federal law i. "Natural Resource Management Plan" shall mean a written compilation of required and recommended natural resources management practices for the Protected Property to be implemented after the Closing Date. j. "Parties"shall mean the Buyer and the Seller, as defined above, collectively. k. "Property Report" shall mean a written description of baseline conditions of the Protected Property as of the Closing Date. "Protected Property" shall mean that certain real estate encumbered by the Conservation Easement situated in Dakota County, Minnesota, as legally described in Exhibit A and generally depicted in Exhibit A-1. I. "Purchase Price" shall mean the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000). If the Purchase Price includes consideration of donated easement value by the Seller, Buyer agrees to acknowledge that it received the donated property from the Seller as necessary to complete the United States Department of Treasury Internal Revenue Non-case Charitable Contribution Form 8283 within thirty (30) days from such time as the form is provided by the Seller. m. "Title Company" shall mean North American Title Company at 5001 American Blvd, Suite 255, Bloomington, Minnesota 55437. n. "Total Property" shall mean that real property owned by Seller that includes the Protected Property and other real property owned by Seller adjacent to or in proximity to the Protected Property as identified in Exhibit A-1. 2. FEE OWNER. Seller represents that Seller is the fee owner of the Total Property and hereby agrees to encumber the Protected Property with a Conservation Easement, subject only to the following exceptions: a. Building and zoning laws, ordinances, State and Federal regulations; and b. Utility, drainage, and public road easements of record. c. Other exceptions (from Title Commitment and survey)as listed below: i. Easements for drainage and utilities as shown on the recorded plat of Mallard Pond 2nd Addition,filed on November 8, 1995, as Document No. 1311954. ii. Easements for utility, drainage, ponding and street purposes in favor of the City of Rosemount, dated June 15, 2006, and filed June 27, 2006, as Document No. 2441045. iii. Subject to the rights of the State of Minnesota and the Department of Natural Resources, if any, in and to the wetlands as shown on available maps and/or as depicted on the recorded plat. iv. Lease Agreement between KleinBank and Robert M. Hilk dated April 25, 2013, terminating on September 30, 2013. v. The rights of any parties in possession of or otherwise entitled to use the motorcross track disclosed by a survey conducted by Westwood Professional Services, Inc., dated July 8, 2013, that may encroach on the Protected Property. vi. Easements for drainage and utilities as shown on the plat of Bella Vista. 2 3. DEVELOPMENT RIGHTS. Seller agrees to convey the existing development rights within the Protected Property to Buyer upon the conveyance of the Conservation Easement. Upon the Closing, no development rights shall remain within the Protected Property. 4. TITLE EXAMINATION. Within twenty (20) days after the Effective Date, Buyer shall pay the entire cost for updating the title insurance commitment/binder. Buyer shall be allowed up to twenty (20) days after receipt for examination of the title documents and to make any objections to title. Buyer shall make any such objection in writing or the objection shall be deemed to be waived. If any objections are made, Seller shall have one hundred twenty (120) days to make title marketable. Pending correction of title, the payments required by this Agreement shall be postponed, but upon correction of title, and within twenty (20) days of written notice to Buyer, the Parties shall perform this Agreement according to its terms. If title is not marketable and is not made so within one hundred twenty(120)days from the date of written objection as provided above, this Agreement shall, at Buyer's option, be void and neither Party shall be liable for damages or costs to the other Party. If Buyer obtains title insurance, Buyer is not waiving the right to obtain a good and marketable title of record from Seller. Buyer agrees to take all actions necessary to obtain recordable subordination agreements from all persons or entities having a recorded interest in the Total Property, to the effect that the Conservation Easement shall take priority to, and not be affected by, the foreclosure of any mortgage or lien against Seller's title, and that the purchaser at a foreclosure sale of such mortgage or lien shall take title subject to the Buyer's Conservation Easement. 5. PAYMENT TERMS. As consideration for the covenants and agreements made herein, Buyer agrees to pay the Purchase Price of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) to Seller for the Conservation Easement on the Protected Property, less closing costs, payable in cash or equivalent upon the execution and delivery of the Conservation Easement encumbering the Protected Property and other documents necessary to complete the Closing on the Closing Date. 6. CLOSING COSTS. a. Seller shall be responsible for, and pay the following costs: special assessment search, tax and judgment search, any corrective title action needed and fees associated with making Seller's title marketable, Seller's attorney's fees, and fifty (50) percent of closing fees charged by the Title Company. Further, Seller shall be solely responsible for, and hold Buyer harmless from paying, any real estate fees or commissions due or claimed to be due arising from this transaction. If a power of attorney is necessary for Seller to complete the Closing, then Seller is responsible for all costs associated with the power of attorney document including, but not limited,to the preparation costs and recording fees. b. Buyer is responsible for paying the costs for a title commitment and supplements, examination fee, name search, property inspection, title insurance premium, property 3 inspection, any recording fees for the Conservation Easement, and fifty (50) percent of closing fees charged by the Title Company. 7. SELLER'S CLOSING DOCUMENTS. Seller agrees to execute and deliver the following documents to Buyer on the date of closing: a. A Conservation Easement encumbering the Protected Property. b. Standard Seller's Affidavit regarding Parties in possession. c. Any other document(s) requested by Buyer or Title Company to effectuate the closing and the terms of this Agreement. 8. TAXES AND SPECIAL ASSESSMENTS. Seller will pay all current, past due and future property taxes and any special assessments levied or to be levied against the Total Property. 9. SELLER'S WARRANTIES. Seller warrants that: a. Seller has full power and authority to enter into this Agreement (and the person signing this Agreement for the Seller has full power and authority to sign for the Seller and to bind it to this Agreement) and to sell, transfer and convey all right, title and interest in and to the Property. b. The execution of this Agreement will not constitute a breach or default under any agreement to which the Seller is bound and/or to which the Total Property is subject. c. There is no suit, action, arbitration, or legal, administrative or other proceeding or injury pending or threatened against the Total Property or any portion thereof or pending or threatened against the Seller which could affect the Seller's title to the Protected Property or any portion thereof, affect the value of the Total Property or Protected Property, or subject an owner of the Protected Property to liability. d. Except for an option in favor of U.S. Home Corporation, there is no lease, license, permit, option, right of first refusal or other agreement, oral or written, which affects the Protected Property. e. There are no present violations of any restrictions relating to the use or improvement of the Total Property or any uncured notices which have been served upon the Seller by any governmental agency notifying the Seller of any violations of statute, order, ordinance, rule, requirement, or regulation which would affect the Total Property or any portion thereof. f. The Total Property is not subject to a lien for Medical Assistance or other public assistance. g. Seller has no knowledge, nor does Seller have reason to know, of any condition at, on, under or related to the Protected Property presently or potentially posing a significant hazard to human health or the environment (whether or not such condition constitutes a violation of Environmental Laws, as previously defined). h. Seller has no knowledge, nor does Seller have reason to know, of any production, use, treatment, storage, transportation, or disposal of any Hazardous Substance (as previously defined) on or under the Protected Property, nor has there been any release or threatened release of any Hazardous Substance, pollutant or contaminant into, upon or over the Protected Property or into or upon ground or surface water at the Protected Property or within the immediate vicinity of the Area. i. Seller is in compliance with all laws and regulations in connection with any handling, use, storage or disposal of Hazardous Substances at the Protected Property, including the maintenance of all required permits and approvals. j. Seller is in compliance with all Environmental Laws with respect to the Protected Property. 4 k. Seller has disclosed to Buyer in writing the location of any individual sewage treatment systems located on the Protected Property. I. Seller has disclosed to Buyer in writing the location of any individual wells located on the Protected Property. m. To the best of Seller's knowledge, methamphetamine production has not occurred on the Protected Property. Each of the above representations is material and is relied upon by Buyer. Except insofar as the Seller has advised Buyer in writing to the contrary, each of the above representations shall be deemed to have been made as of Closing and shall survive Closing. At Closing, if Buyer so requests, the Seller shall deliver to Buyer a certificate in a form satisfactory to Buyer stating that each of the above representations is true and correct as of Closing. If, before the Closing, the Seller discovers any information or facts that would materially change these warranties and representations, the Seller shall immediately give notice to Buyer of those facts and information. If any of the foregoing representations and warranties ceases to be true before the Closing, the Seller will promptly remedy the problem, at the Seller's sole cost and expense, upon receipt of notice by Buyer. If the problem is not remedied before Closing, Buyer may elect to either: (i) terminate this Agreement in which case Buyer shall have no obligation to purchase the Conservation Easement, or (ii) defer the Closing until such problem has been remedied. Buyer's election in this regard shall not constitute a waiver of Buyer's rights in regard to any loss or liability suffered as a result of a representation or warranty not being true nor shall it constitute a waiver of any other remedies provided in this Agreement or by law or equity. 10. CONSERVATION EASEMENT. Buyer shall prepare a Conservation Easement in substantially the same form as the instrument attached to this Agreement as Exhibit B. Buyer shall provide the Conservation Easement to the Seller at least twenty-one (21) days prior to the Closing Date for review. The Seller shall delivery possession of the fully executed Conservation Easement on or before the Closing Date. 11. PROPERTY REPORT. Buyer shall prepare an Initial Property Report describing the current condition of the Protected Property and providing the basis for annual monitoring reports. Buyer shall provide the Initial Property Report to the Seller for review at least seven (7) days prior to the Closing Date. Seller, following its review and approval, agrees to deliver signed copies of the Property Report on or before the Closing Date and shall sign an Acknowledgement of Condition, certifying that the Property Report accurately reflects the condition of the Protected Property on the Closing Date. Secondary Property Reports will be completed for the Protected Property at such time as when the proposed phased residential development around the Protected Property is substantially completed. 12. NATURAL RESOURCE MANAGEMENT PLAN. Buyer, Seller, and City of Rosemount (hereinafter referred to as the "City") shall jointly prepare a preliminary Natural Resource Management Plan (hereinafter referred to as the "Management Plan") describing the current ecological conditions of 5 the Protected Property and general recommendations for establishing preferred plant communities to be implemented on the Protected Property after the Closing Date. The Buyer shall provide the Management Plan to the Seller at least seven (7) days prior to the Closing Date. If Buyer is not the fee owner of the Protected Property post-closing, it is not required to join in the Management Plan. 13. CONDITIONS PRECEDENT. a. In addition to the title examination, this Agreement shall, at Buyer's option, be void and neither Party shall be liable for damages to the other Party if the following contingencies are not satisfied: i. The Dakota County Commissioners adopting a resolution authorizing Buyer's purchase of the Conservation Easement on the Protected Property from Seller; ii. Final approval by the City and recording of the plat for Bella Vista including dedication of public right of way permitting access to all portions of the Protected Property; and iii. The completion of due diligence by Buyer on or before the Due Diligence Deadline and Buyer determining in its sole discretion that the condition of the Protected Property is acceptable. The Seller agrees that Buyer shall have the right to inspect and investigate the Protected Property at reasonable times and to perform any tests it deems necessary, including tests to evaluate the environmental condition of the Protected Property. Buyer shall coordinate any such inspection to accommodate the schedule of Seller, who shall not unreasonably withhold permission to inspect or investigate. b. This Agreement shall, at Seller's option, be void and neither Party shall be liable for damages to the other Party if: i. Seller does not close on the sale of all of Bella Vista, other than the portions subject to this Agreement and the Agreement for the Purchase of a Combined Permanent Municipal Greenway Conservation Easement and a Regional Trail Corridor between Seller and Buyer executed contemporaneously with this Agreement, to U.S. Home Corporation before or simultaneously with the Closing herein, and ii Buyer does not contemporaneously close on the purchase of the Combined Permanent Municipal Greenway Conservation Easement and a Regional Trail Corridor referenced in Section 13(b)i. iii. The City has not agreed to accept a deed of conveyance from Seller for the Protected Property(subject to the Conservation Easement) on terms acceptable to Seller. 6 14. CLOSING. The Closing shall occur on the Closing Date at Title Company's office. The time of day will be scheduled by the Title Company so as to be mutually acceptable to Buyer and Seller. Seller and Buyer may mutually agree in writing to alter the Closing Date. 15. RISK OF LOSS. Until the completion of closing, all risk of loss is on the Seller. If the Protected Property is damaged prior to closing, Seller shall give the Buyer notice within five (5) business days after such damage has occurred. The notice shall include Seller's proposal for repairing the damage. From the date that Buyer receives Seller's notice, Buyer shall have three (3) business days to inspect the Protected Property and an additional (2) business days to determine if the damages and the Seller's proposal for repairs are acceptable to Buyer. If Buyer does not accept Seller's proposal for repairs within the five(5) business day period, this Agreement shall be void. 16. REMEDIES UPON DEFAULT. In the event that the Seller defaults in the performance of any of its obligations under this Agreement, Buyer shall, in addition to any and all other remedies provided in this Agreement or at law or in equity, have the right of specific performance against the Seller. In the event that Buyer defaults in the performance of any of its obligations under this Agreement, the Seller shall have, as its sole and exclusive remedy, the right to cancel this Agreement as permitted by MINNESOTA STATUTES§§559.21 and 559.217. 17. NO BROKER'S COMMISSION. The Buyer has not used a real estate broker in connection with this Agreement or the transaction contemplated by this Agreement and the parties agree that the Buyer is not responsible for any portion of a broker's commission or finder's fee related to the Seller. In the event that the Seller has used a broker or any person asserts a claim for a broker's commission or finder's fee related to the Seller, that the Seller will indemnify and hold the Buyer harmless from and against the claim and this indemnification shall survive Closing or any earlier termination of this Agreement. 18. WAIVER OF DISCLOSURE. Unless otherwise required herein, Buyer waives the written disclosures required under MINNESOTA STATUTES§§ 513.52 to 513.60. 19. MISCELLANEOUS. a. Performance. The Parties hereto agree that time is of the essence in the performance of this Agreement. b. Notices. Notices to be given under this Agreement shall be in writing and sent by registered or certified mail, addressed to the Parties at the following addresses: With respect to Buyer: Alan Singer, Land Conservation Manager, or Successor Dakota County 14955 Galaxie Avenue Apple Valley, MN 55124 7 With respect to Seller: James Knutson RIOU Property 2, LLC 1550 Audubon Road Chaska, MN 55318 c. Non-Joint Venture. The Parties agree that nothing contained herein shall be considered a partnership or joint venture under taken by the Parties. d. Minnesota Law. This Agreement shall be governed by the laws of the State of Minnesota. Venue for all legal proceedings arising out of this Agreement, or breach thereof, shall be in the state or federal court with competent jurisdiction in Dakota County, Minnesota. e. Representation by Counsel. The Seller understands that the Buyer and the County Attorney's Office do not represent the Seller in this matter. The Seller has had an opportunity to review the terms of this Agreement with Seller's own legal counsel, whether Seller has elected to consult with counsel or not. Seller has read and understands the terms of this Agreement and agrees to be bound by the terms of this Agreement. f. Entire Agreement. This Agreement, along with any exhibits, appendices, addendums, schedules, and written amendments hereto, encompasses the entire agreement of the Parties, and supersedes all previous understandings and agreements between the Parties,whether oral or written. g. Amendments. Any amendments or modifications to this Agreement shall be in writing and shall be executed by the same Parties who executed the original Agreement or their successors. h. Severability. Each provision of this Agreement is severable from any other provision of this Agreement. Should any provision of this Agreement for any reason be unenforceable, the balance of the Agreement shall nonetheless be of full force and effect. i. Headings. The headings used in this Agreement are for convenience of reference only and shall not operate or be construed to alter or affect the meaning of any of the provisions in this Agreement. j. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and which together shall constitute one and the same agreement. 8 IN TESTIMONY WHEREOF, the Parties hereto have caused this instrument to be executed the day and year first recited herein. SELLER: RIOU PROPERTY 2, LLC BY: James Knutson Its: Date of Signature BUYER: DAKOTA COUNTY By: Brandt Richardson, County Administrator Date of Signature Approved as to form: /s/Thomas R. Donely Assistant County Attorney Date of Signature: September 16, 2013 KS-12-325 Approved by Dakota County Board Resolution No. 13-393 9 EXHIBIT A DAKOTA COUNTY SHOREHOLDERS PROGRAM LEGAL DESCRIPTION OF THE SHORELAND CONSERVATION EASEMENT AREA TRACT NO.407 Outlot C, Bella Vista, Dakota County, Minnesota,according to the plat on file and of record with the Dakota County Recorder EXHIBIT A-1 DAKOTA COUNTY SHOREHOLDERS PROGRAM GENERAL DEPICTION OF THE SHORELAND CONSERVATION EASEMENT AREA RIOU Property 2, LLC Shoreland Conservation Easement Exhibit A PIS Section 15,115-14;21,1155-19 Total Easement Acees 25,8 1I 1 i i r a. i ( ' 1 [ S tkt Sec..16 0 f .�,. s " w'r43ec..21 t 10 L p Cat Seth zi— .5-w _ I , I a_. ,. 1 ( r II I `err-,.✓' ; N 11 Ag ii VI II Allial i i 1 ilL ° MN \ I I1 ' O Section Cameo 0 ouarter Corner Il=EasementArea �....,i Parcels Roads A, Map Date:7#1612013 1 inch=5110 feet EXHIBIT B PERMANENT MUNICIPAL SHORELAND CONSERVATION EASEMENT BETWEEN THE COUNTY OF DAKOTA, MINNESOTA AND RIOU PROPERTY 2, LLC TRACT No.407 This permanent Municipal Shoreland Conservation Easement (hereinafter referred to as the"Easement") is granted this day of , 2013, by RIOU Property 2, LLC, a Minnesota limited liability company (hereinafter referred to as the "Grantor"), having an address at 1550 Audubon Road, Chaska, Minnesota 55318, to the County of Dakota (hereinafter referred to as the "Grantee"), a political subdivision of the State of Minnesota, having a mailing address at 1590 Highway 55, Hastings, Minnesota 55033, as set forth herein. RECITALS A. Land Ownership. Grantor is the owner in fee simple of approximately 142 acres of real property(hereinafter referred to as the"Property") located in Dakota County, Minnesota. B. Protected Property. Grantor is willing to grant an Easement on approximately 25.8 acres of the Property, legally described in Exhibit A, and generally depicted in Exhibit A-1 attached hereto (hereinafter referred to as the"Protected Property"). The Protected Property is a combination of shoreland, floodplain and upland habitat around the perimeter of Horseshoe Lake and a portion of Horseshoe Lake. An existing, non-paved trail exists on portions of the Protected Property. This Easement is subject to the following encumbrances: 1. Easements for drainage and utilities as shown on the recorded plat of Mallard Pond 2nd Addition, filed on November 8, 1995, as Document No. 1311954. 2. Easements for utility, drainage, ponding and street purposes in favor of the City of Rosemount, dated June 15, 2006, and filed June 27, 2006, as Document No. 2441045. 3. Subject to the rights of the State of Minnesota and the Department of Natural Resources, if any, in and to the wetlands as shown on available maps and/or as depicted on the recorded plat. 4. The rights of any parties in possession of or otherwise entitled to use the motorcross track disclosed by a survey conducted by Westwood Professional Services, Inc., dated July 8, 2013, that may encroach on the Protected Property. 5. Easements for drainage and utilities as shown on the plat of Bella Vista. C. Conveyance of Protected Property. Immediately upon granting this Easement, Grantor will convey fee title to the Protected Property to the City of Rosemount (hereinafter referred to as the "City")and the City will accede to the obligations of the Grantor herein. D. Conservation Values. The Protected Property has significant scenic, natural, aesthetic, scientific and educational values as a"relatively natural habitat of fish, wildlife, or plants or similar ecosystem,"as that phrase is used in Section 170(h) (4) (A) (ii) of the Internal Revenue Code and in the regulations promulgated thereunder(collectively, the"Conservation Values"). E. Property Reports. Grantee has prepared an initial baseline documentation report (hereinafter referred to as the "Initial Property Report") describing the natural and open space characteristics, aesthetic features, physical condition, and present uses of the Protected Property at the time of conveyance of this Easement. Secondary Property Reports will be completed for the Protected Property at such time as when the proposed phased residential development around the Protected Property is substantially completed (hereinafter referred to as the"Secondary Property Reports.") F. Natural Resource Management Plan. Grantee, Grantor and the City have prepared, reviewed and approved a preliminary Natural Resource Management Plan that describes the current and preferred natural resource conditions, goals and planned recreational amenities and activities for the Protected Property (hereinafter the preliminary Natural Resource Management Plan, together with any updates, amendments, revisions or replacements thereof, is referred to as the"Management Plan"). NOW THEREFORE, in consideration of the facts recited above, the mutual covenants, conditions, and restrictions contained herein, and the payment of ONE HUNDRED THOUSAND DOLLARS ($100,000) by Grantee to Grantor, Grantor hereby grants and conveys to Grantee an Easement in perpetuity that runs with the Protected Property; the Grantor and Grantee agree as follows: 1.0 PURPOSE. It is the purpose of this Easement to ensure that the Protected Property will be retained forever substantially unchanged from its present condition as natural and open space and to prevent any use of the Protected Property that will significantly impair or interfere with the Conservation Values of the Protected Property. Grantor intends that this Easement will confine the use of the Protected Property to activities that are consistent with the purpose of this Easement. However, more restrictive applicable Federal, State or local laws shall prevail in determining permitted uses of the Protected Property. 2.0 RESTRICTIONS AND COVENANTS. Any activity on or use of the Protected Property inconsistent with the purpose of this Easement is prohibited. Without limiting the foregoing, the following activities and uses are expressly prohibited: 2.1. Industrial, Commercial or Residential Activity. There shall be no industrial, commercial, or residential activity undertaken or allowed on the Protected Property. No right of ingress or egress across or upon the Protected Property shall be allowed or granted, if that ingress or egress is used in conjunction with industrial or commercial activity. 2.2. Structures and Improvements. There shall be no temporary or permanent buildings, or permanent structures of any kind placed or constructed on the Protected Property, except as set forth below or specifically provided for in the Management Plan, as described in Section 5.2. A. Roads and Parking Areas There shall be no construction of roads, parking areas or other rights-of-way for motorized use on the Protected Property, except as described in Section 2.2.B below. B. Utility Services. The construction, installation, maintenance, repair, replacement, removal, and relocation of existing or new electric, gas, water facilities, sewer lines and/or other public 2 or private utilities, including telephone or other communication services over or under the Protected Property for the purpose of providing electrical, gas, water, sewer, or other utilities to serve improvements outside of the Protected Property are permitted. Construction, operation, maintenance, repair, and replacement of storm water management facilities are permitted. Storm water management facilities include drainage ways, pumps, lift stations, pipelines, dams, weirs and storm water ponds for management of quantity and quality of storm water and other appurtenant and related improvements such as electrical service, together with non-public driveway and parking facilities for maintenance access to storm water facilities. Planned facilities are generally depicted in Exhibit B. Except as permitted above, Grantor shall not permit or grant easements for new utility transmission or distribution facilities or systems on the Protected Property without the written consent of Grantee. C. Paths/Trails. Grantor may improve the existing path/trail or establish new paths/trails on the Protected Property for non-motorized, recreational use only in accordance with the Management Plan and with the approval of Grantee. D. Floating Platform. Grantor may construct and install a floating platform or other similar structures or improvements on the Protected Property to allow people to safely access and enjoy Horseshoe Lake for recreational and educational purposes in accordance with the Management Plan and with the approval of Grantee. E. Benches. Grantor, successor or assigns, may construct and install sitting benches or other similar improvements on the Protected Property with the approval of Grantee. Grantor shall ensure that the Protected Property is restored to a condition consistent with the purpose of this Easement in a timely and appropriate manner following any construction, maintenance, repair, replacement, removal, or relocation of any improvements authorized by, or pursuant to, this section. 2.3. Control and Management of Vegetation and Pests. Grantor shall maintain the Protected Property in compliance with the Management Plan. There shall be no removal, destroying, burning, cutting, mowing or altering of trees, shrubs and other vegetation on the Protected Property except as provided in this Easement or the Management Plan. A. Control of Harmful Insects and Invasive Species. Activities to prevent or control harmful insects, invasive species, noxious weeds, diseases, personal injury, or property damage are permitted, if provided for in the Management Plan. There shall be no plant or animal species knowingly and willfully introduced on the Protected Property, except non-invasive, native and non-native species consisted with the Conservation Values of this Easement and as provided in the Management Plan. B. Pesticides and Herbicides. There shall be no application of pesticides or herbicides on the Protected Property, except those that are necessary as part of approved practices specified in the Management Plan. Pesticide or herbicide use must comply with all applicable Federal and State regulations and Best Management Practices. Labeled and approved herbicides and pesticides may be used by spot applications to control State/County-designated noxious weeds, invasive woody species or pest insect infestations, provided their use is designed to minimize the impact on the Conservation Values of the Protected Property. Broadcast spraying of herbicides or pesticides, including aerial applications, is permitted, if known infestation is determined to be a threat to human, animal and/or plant community health, provided that, at a minimum, the following conditions are met: (a) spot treatment is not practical because of the severity of the infestation; (b) the timing of application is scheduled to minimize damage to non-target species; and (c)the type of herbicide or pesticide used has the least impact on non-target species while still being effective in controlling target species. 3 2.4. Domestic Animals. Domesticated dogs and other domesticated animals are permitted on the Protected Property in accordance with local ordinances. 2.5. Surface Alteration. There shall be no change of the topography of the Protected Property in any manner except as reasonably required in the course of permissible activities included in Section 2.2 or uses in accordance with the Management Plan. Removal of topsoil is prohibited. 2.6. Water. No activities or uses of the Protected Property that cause soil erosion or are detrimental to water quality are permitted. 2.7. Waste Disposal. There shall be no storage, accumulation, processing or disposal of trash, non-compostable garbage, debris, unserviceable vehicles, unused equipment, hazardous or toxic substances or other unsightly or offensive material on the Protected Property. Use of the Protected Property for dumping solid or hazardous waste is prohibited. 2.8. Motorized Vehicles. Use of motorized vehicles is prohibited, except for the installation and management of landscaping, utilities and public improvements authorized under this Easement, or for natural resources management, law enforcement, public safety, and emergency purposes. 2.9. Signs. Commercial signs, billboards, and outdoor advertising structures may not be displayed on the Protected Property. Informational signage is permitted and is limited to the following purposes: A. Naming the owner of the Protected Property; B. Announcing the existence of this Easement; C. Providing interpretive and directional information; D. Providing the name and address of Grantor, Grantee, project partners, and/or funding sources; E. Delineating the boundaries of the Protected Property in order to prohibit non-permitted activities; F. Providing information with regard to on-site uses and activities permitted by this Easement, for which approval will not be unreasonably withheld, conditioned, or delayed. For all signs permitted by this section, the location, number, size, and design must not significantly diminish the Conservation Values of the Protected Property, and must be approved by the Grantor and Grantee. 3.0 GRANTOR'S RESERVED RIGHTS. Grantor reserves the right to use the Protected Property for all purposes that are not expressly restricted or prohibited herein and are not inconsistent with the purpose of this Easement. Grantor agrees to notify Grantee in writing before exercising any reserved right that may have an adverse impact on the purpose of this Easement. Without limiting the applicability of the foregoing, Grantor reserves the following rights: 3.1. Recreational or Educational Activities. Grantor reserves the right to engage in low- impact, recreational or educational activities requiring no significant alteration of the land and posing no threat to the purpose of this Easement, provided that these activities do not negatively impact the Conservation Values of the Protected Property as determined by Grantee. 3.2. Conveyance. Grantor may sell, give, mortgage, lease or otherwise convey all or a portion of the Protected Property, provided that such conveyance is subject to this Easement and prior 4 written notice is provided to Grantee in accordance with Section 5.17, except no written notice is required for the conveyance of the Protected Property to the City. Upon conveyance of all or a portion of the Protected Property, any new deed shall reference this Easement, except no such reference is required in a deed of conveyance of the Protected Property to the City. 4.0 RIGHTS AND REMEDIES OF GRANTEE. In order to accomplish the conservation purposes of this Easement, Grantee shall have the following rights and remedies: 4.1. Remedies and Enforcement. In the event that Grantee becomes aware of a violation of the terms of this Easement, Grantee shall give notice to Grantor in accordance with Section 5.17 of such violation and request corrective action sufficient to abate such violation and restore the Protected Property to its previous condition. Failure by Grantor to discontinue, abate or other correct the violation within thirty(30) days after receipt of such notice shall entitle Grantee to enforce by proceedings at law or in equity the provisions of this Easement. The Grantee shall not waive or forfeit the right to take action as may be necessary to ensure compliance with the terms and conditions of this Easement by any prior failure to act. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the Conservation Values of the Protected Property, Grantee may pursue its remedies under this Section without prior notice to Grantor or without waiting for the period for cure to expire. Grantee shall be entitled to seek expedited injunctive relief to enforce its rights with respect to the Protected Property, and Grantor waives any bond requirement otherwise applicable to any petition for such relief. Grantor shall notify Grantee of any occurrence which would adversely affect or interfere with the purpose of this Easement,whether caused by the acts or omissions of Grantor or third parties. 4.2. Right of Entry. Grantee, or its designated representative, shall have the right to enter the Protected Property, in a reasonable manner, with advance notice to Grantor and at reasonable times, for the purpose of ensuring that this Easement and the Management Plan are being implemented appropriately, and as needed to exercise its contingent rights, for the following purposes: A. Inspecting the Protected Property to determine if Grantor is complying with the provisions of this Easement; B. Obtaining evidence for the purpose of seeking judicial enforcement of this Easement; C. Posting signs for the purpose of promoting provisions of this Easement, with Grantor's approval as to the size and location of signs; D. Inspecting the Protected Property to determine if Grantor is complying with the provisions of the Management Plan; E. Removing invasive plants or animals, as agreed on by Grantor and Grantee. Such activities by Grantee shall not relieve Grantor of the responsibility of removing and controlling invasive species in accordance with appropriate Federal, State and County laws and regulations. The Protected Property can be accessed directly from public property and platted public right-of- way generally depicted in Exhibit A-1. Unless there is an emergency, Grantee will provide advance notice of its need for access, will discuss with Grantor the most appropriate access route, and will minimize any damage to Grantor's property by selecting appropriate vehicle(s) and weather conditions for obtaining access to the Protected Property. All notices to Grantor under this section may be made either in writing or verbally, at the discretion of the party providing the notice. 5 4.3. Limitation of Grantee's Rights. Nothing contained herein shall give rise to any right or ability of Grantee to become the owner, manager or operator of the Protected Property. 4.4. Consent to Otherwise Prohibited Activities; Activities Requiring Consent. Grantee may consent to activities otherwise prohibited or requiring consent under Sections 2 and 3 only as provided in this section. Grantor must request permission for such an activity in writing in sufficient detail to allow Grantee to judge the consistency of the activity with the purposes of this Easement. Grantee shall make reasonable efforts to respond within 60 days of receipt of such a request. Grantee may give its permission only if it determines, in its sole discretion, that the activity: (a) does not violate the purpose of this Easement; and (b)either enhances or does not significantly impair the Conservation Values of the Protected Property. 5.0 GENERAL PROVISIONS. 5.1. Perpetual Burden. This Easement shall run with and burden the Protected Property in perpetuity and shall bind Grantor, Grantor's successors and assigns. 5.2. Natural Resource Management Plan. All natural resource management practices on the Protected Property shall be in accordance with a jointly developed and approved preliminary and final Management Plan. A preliminary Management Plan, that describes the current and preferred natural resource conditions, goals and planned recreational amenities and activities for the Protected Property has been completed and approved by Grantee, Grantor and City of Rosemount prior to conveying this Easement. The final Management Plan must be completed and approved by Grantee and Grantor within six months of the date of execution of this Easement. Grantee and Grantor agree to consult with one another periodically with respect to updating the Management Plan, and further agree that the Management Plan may be revised or modified as necessary to reflect changed conditions or circumstances, so as to assure that the original intent and purpose of this Easement are carried out in perpetuity. Grantee shall be responsible for any modifications to the Management Plan, which shall not contradict the terms of this Easement, and which shall take effect only upon written agreement by both Grantee and Grantor. Grantee and Grantor will each retain an updated copy of the Management Plan. 5.3. Easement Documentation. Grantor and Grantee agree that the physical condition, present uses, and the Conservation Values of the Protected Property at the time of conveyance of this Easement are documented in an Initial Property Report. Secondary Property Reports, prepared upon completion of the phased residential development around the Protected Property, are not intended to preclude the use of other information and evidence to document the condition of the Protected Property in the event of any future enforcement issue. Copies of the Initial and Secondary Property Reports shall be maintained with the Grantor and respective successors and assigns, at the office of Grantee and may be used by Grantee in any enforcement action. 5.4. Grantor's Access. Nothing in this Easement shall be construed to preclude Grantor's own right to access all portions of the Protected Property, provided this access does not degrade the purpose of this Easement or contradict the provisions of the Preliminary Management Plan. 5.5. Assignment. This Easement is in gross and may be assigned or transferred by Grantee, and such transfer shall be duly recorded. Grantee agrees that, if it transfers or assigns its interest in this Easement, the following requirements shall apply: A. The transferee or assignee will be required to carry out in perpetuity the purpose that this Easement was originally intended to advance. B. Grantee will notify Grantor of any assignment within thirty (30) days of the assignment and will provide the Grantor with the name and address of the new holder. 6 5.6. Dissolution of Grantee. In the event of the dissolution of Grantee, Grantee's interest will be assigned only to a public body or to a private non-profit organization qualified to hold and monitor this Easement. 5.7. Subsequent Transfers by Grantor. Unless this Easement is extinguished, as set forth below, Grantor agrees that the terms, conditions, restrictions and purposes of this Easement will either be incorporated by reference or inserted by Grantor in any subsequent deed or other legal instrument by which Grantor divests itself of any interest in all or part of the Protected Property, except for a conveyance of the Protected Property to the City. Other than for a transfer of the Protected Property to the City, Grantor agrees to notify Grantee of such conveyance in writing by certified mail within fifteen (15) days after closing. If ownership of the Protected Property is transferred from Grantor to another, the Grantee shall be notified of any such conveyance in writing by certified mail within thirty (30) days. Upon conveyance of the Protected Property to the City, the City shall be considered the "Grantor" (in accordance with Sections 5.1 and 5.16), and RIOU Property 2, LLC shall be released from all covenants, representations, warranties and any obligations created by this Easement, save and except liabilities arising solely under Section 5.10 herein for warranty of title and Section 5.12 herein for actions, conduct or conditions which existed prior to the date of the conveyance of the Protected Property to the City. 5.8. Amendment. This Easement may be amended by written agreement between Grantor and Grantee; provided, however, any amendment shall be consistent with the purposes of this Easement and shall meet the requirements of applicable law. 5.9. Extinguishment. This Easement may be extinguished only if: A. Circumstances arise that make the continued use of the Protected Property in a manner consistent with the conservation purposes of this Easement is impossible or impractical. In this event, this Easement may only be extinguished through a judicial proceeding. B. The power of eminent domain is properly exercised by a higher governmental authority. If this Easement is extinguished, the Grantee shall be compensated by the fee owner of the Protected Property at the fair market value of this Easement at the time of extinguishment, as determined by an independent fair market appraisal using the Uniform Standards of Professional Appraisal Practices. 5.10. Title Warranty. Grantor hereby warrants and represents that Grantor is the fee simple owner of the Protected Property and has good right to grant and convey this Easement, that the Protected Property is free and clear of any and all encumbrances except those except those identified herein, and that Grantee and its successors and assigns shall enjoy all of the benefits derived from and arising out of this Easement. Any present or future mortgage on the Protected Property has been or will be subordinated to this Easement. 5.11. General Indemnification. Grantor shall indemnify and hold harmless Grantee, its employees, agents, and assigns for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties, suits, proceedings, actions, and costs of actions, sanctions asserted by or on behalf of any person or governmental authority, and other liabilities (whether legal or equitable in nature and including, without limitation, court costs, and reasonable attorneys' fees and attorneys' fees on appeal) to which Grantee may be subject or incur relating to the Protected Property,which may arise from, but is not limited to, Grantor's negligent acts or omissions or Grantor's breach of any representation, warranty, covenant, agreements contained in this Easement, or violations of any Federal, State, or local laws, including all Environmental Laws as defined in Section 5.12. In the event that the successor or assign of the Grantor is a political subdivision of the state covered by Minnesota Tort Claims Act, Minnesota Statutes, Chapter 466, Grantor will not be obligated to indemnify Grantee in any amount in excess of the limitation of liability as set forth in Minnesota Statutes Section 466.04, as may be amended. 5.12. Environmental Condition and Compliance with Environmental Laws. A. Compliance with Environmental Laws. Grantor represents that, to the best of its knowledge, it is in compliance with, and shall remain in compliance with, all applicable environmental laws ("Environmental Laws"). "Environmental Law" or "Environmental Laws" means any and all Federal, State, local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) concerning air, water, solid or hazardous waste, hazardous materials, worker and community right-to-know, hazard communication, noise, radioactive material, resource protection, subdivision, inland wetlands and watercourses, health protection and similar environmental health, safety, building and land use as may now, or at any time hereafter, be in effect. B. Grantor's Indemnity. Grantor hereby promises to defend and indemnify Grantee against all litigation, claims, demands, penalties and damages, including reasonable attorneys' fees, arising from or connected with the use, deposit, or release or threatened release of any Hazardous Materials before or after the date of this Easement on, at, beneath or from the Protected Property, or arising from or connected with a violation of any Environmental Laws by Grantor or any other prior owner of the Protected Property. Grantor's indemnification obligation shall not be affected by any authorization provided by Grantee to Grantor with respect to the Protected Property or any restoration activities carried out by Grantee at the Protected Property; provided, however, that Grantee shall be responsible for any Hazardous Materials contributed after the date of this Easement to the Protected Property by Grantee. . In the event that the successor or assign of the Grantor is a political subdivision of the state covered by Minnesota Tort Claims Act, Minnesota Statutes, Chapter 466, the provisions of said Chapter, as may be amended, shall apply to the successor or assign. The obligation of Grantor to indemnify Grantee under this paragraph shall not apply to any political subdivision of the state except with respect to the release or th r eatened release of h aza r do us materials s caused by such political subdivision, its officers, agents or employees. 5.13. Real Estate Taxes. Grantor agrees to pay any and all real property taxes and 9 P Y Y P Y assessments levied by competent authority on the Protected Property. 5.14. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep and maintenance of the Protected Property, including the maintenance of adequate comprehensive general liability insurance coverage. Grantee shall have no duty or responsibility to manage or maintain the Protected Property. If, however, the Protected Property is damaged by causes beyond Grantor's control, such as changes caused by fire, flood, storm, infestations, natural deterioration, the acts of third parties legally authorized to act by recorded document or other legally established rights or the unauthorized wrongful acts of third persons, Grantor and Grantee will meet and seek to arrive at an equitable solution to restore the Protected Property. Grantor shall keep Grantee's interest in the Protected Property free of any liens arising out of any work performed for, materials furnished to or obligations incurred by Grantor. II 5.15. Recording. Grantor authorizes Grantee to record or file any notices or instruments appropriate to assuring the perpetual enforceability of this Easement. 5.16. Successors, and Assigns. The terms "Grantor" and "Grantee" as used herein shall be deemed to include, respectively, Grantor, Grantor's successors, and assigns; and Grantee, its successors and assigns. 5.17. Notices. Excepted as provided below, any notice required by or send pursuant to this Easement shall be sent by registered or certified mail, return receipt requested, to the following 8 individuals, or their successors, at the addresses provided or such addresses as may be specified in writing: GRANTOR GRANTEE James Knutson Alan Singer, Land Conservation Manager RIOU Property 2, LLC Dakota County 1550 Audubon Road 14955 Galaxie Avenue Chaska, MN 55318 Apple Valley, MN 55124 952-443-6826 952-891-7001 j.knutson @kleinbank.com al.singer @co.dakota.mn.us However, notice provide by Grantee, or Grantee's designated representative, in exercising its right of entry under Section 4.2 may be made to the Grantor either in writing or verbally, at the discretion of Grantee. Grantor shall provide notice of any subsequent transfer in accordance with the provisions of Section 5.7. 5.18. Severability. Each provision of this Easement is severable from any other provision of this Easement. Should any provision of this Easement for any reason be unenforceable, the balance of this Easement shall nonetheless be of full force and effect. 5.19. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed in favor of the grant to affect the purpose of this Easement. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. 5.20. Entire Agreement. This instrument, including the Recitals and Exhibits, sets forth the entire agreement of the parties with respect to this Easement and supersedes all prior discussion, negotiations, understandings, or agreements relating to this Easement, all of which are merged herein. The Grantor agrees to execute or provide any additional documents reasonably needed by Grantee 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. 5.21. Opportunity to Review with Legal Counsel. Grantor has had an opportunity to review the terms of this Easement with Grantor's own legal counsel, whether Grantor has elected to consult with counsel or not. Grantor has read and understands the terms of this Easement and agrees to be bound by its terms. 5.22. Termination of Rights and Obligations. A party's rights and obligations under this Easement terminate upon transfer of the party's interest in this Easement or Protected Property, except that liability for acts or omissions prior to transfer shall survive transfer. 5.23. No Merger. Should Grantee acquire fee title to the Protected Property, no merger shall occur and this Easement and the fee shall continue to be managed as separate estates. This space is intentionally left blank 9 IN WITNESS WHEREOF, Grantor and Grantee have executed this Permanent Municipal Shoreland Conservation Easement to be in effect as of the Effective Date. GRANTOR RIOU PROPERTY 2, LLC BY: James Knutson Its: STATE OF MINNESOTA )SS. COUNTY OF The foregoing instrument was acknowledged before me this day of , 2013, by James Knutson, the of RIOU Property 2, LLC, a Minnesota limited liability company, on behalf of the company. Notary Public 10 GRANTEE Dakota County hereby accepts the foregoing Permanent Municipal Shoreland Conservation Easement this day of , 2013. Kathleen A. Gaylord, Chair Dakota County Board of Commissioners Attested to By: Kelly D. Olson, Clerk to the Board STATE OF MINNESOTA ) ) SS. COUNTY OF DAKOTA ) The foregoing instrument was acknowledged before this day of , 2013, by Kathleen A. Gaylord, Chair of the Dakota County Board of Commissioners, a political subdivision of the State of Minnesota, on behalf of the County. Notary Public Approved by Dakota County Board Resolution No. 13-393 Approved as to Form: Assistant County Attorney Date: KS-12-325 Contract#C0025153 Drafted by: Alan Singer,Land Conservation Manager Dakota County 14955 Galaxie Ave. Apple Valley,MN 55124 952-891-7001 al.singer@co.dakota.mn.us 11 Exhibit A Dakota County Shoreholders Program Legal Description of the Shoreland Conservation Easement Tract No.407 Outlot C, Bella Vista, Dakota County, Minnesota, according to the plat on file and of record with the Dakota County Recorder Exhibit A-1 Dakota County Shoreholders Program General Depiction of the Shoreland Conservation Easement RIOU Property 2, LLC Shoreland Conservation Easement Exhibit A-1 S Section 16,115-l6;21,115-1 8 Tc Easement Acres 25.6 I . .................. i 1 -1 €- ,� _ .,' SE Cac Sec 16 Tf^ , `� N 11 See.21 a OUTCOT C -- N Car..Sec.21 i or--- —' 1 i I I li k I l 1 I I _I A■Ir oil , --, , 1111L11111111110 '1: i , wit ° � Ell° , Sir BO uI QSet;mon Garner 0 Quarter Comer IM EasementArea ,,, I Farads . s.Raath Map Date:7d1&'2613 1 inch=590 feet Exhibit B Dakota County Shoreholders Program General Location and Identification of Planned Utility Facilities ............._ ................ 1111.._. ............. .............. .............. 1111..._... .......... .............._.. ........__ .. ............._... 1111..... . ......_..._ _.......... ........... ........ ............... ...--_ .....__. .......... .__..... .. ._......... .............. .......--- _.. ........ _...._. ............... _ ___1111 _... _.. _ _ _1111. _._. . _ � 2A : # �� ] �"Sr s q�j$p - vNLYdWP3fW 1�tat s - .. .T �.. rte:, 4 «_:va ... ..., - T .j .'.,� t i q i��..` A ety * „F`1t .: .. ... 1111. 1111 .. 1- .: `: I{, .y ;, ,, �5 ; t. : 1111 1111. 1 }t (.a :. fI/ E .:4 ; ` .�1.` a*.S.*-+ "i1 ' i .. ..... o f .z1 1D 1 y r sl t.:. ,. / :..� ........ s ........ f ,.y tK !' .. 1 C T 1 4.. 4 1 ` 0.' �t r 1111 1111.. . 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