HomeMy WebLinkAbout2459. ;Z q-59
CONSERVATION RESTRICTION
(Natural Condition)
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06/19/91
THIS INDENTURE, Made this d.5 day of September, 1991,
between Jyland Development, Inc., a Minnesota corporation,
contract purchaser and Whitney E. Peyton and Nancy 0. Peyton,
husband and wife, contract sellers (hereinafter called "Owner,"
whether one or more), and the CITY OF EDINA, a municipal
corporation under the laws of the State of Minnesota
(hereinafter called "Edina ").
WITNESSETH:
That Owner, in consideration of One Dollar ($1.00) and other good and
valuable consideration, the receipt of which is hereby acknowledged, does hereby
Grant, Bargain, Sell and Convey unto Edina, its successors and assigns, Forever, a
Conservation Restriction pursuant to Minnesota Statutes § 84.64, for the purposes
and on the terms hereinafter specified, over, on and across the tract(s) or parcel(s) of
land lying and being in the County of Hennepin and State of Minnesota, described
in Exhibit A attached hereto and made a part hereof (said tract(s) or parcel(s) of land
being hereinafter together called the "Easement Area ").
TO HAVE AND TO HOLD THE SAME, Together with all the
herUditaments and appurtenances thereunto belonging, or in anywise appertaining,
to Edina, its successors and assigns, Forever. And Owner, for Owner and Owner's
heirs, representatives, successors and assigns, covenants with Edina, its successors
and assigns, that Owner is well seized in fee of the Easement Area, and has good
right to convey pursuant hereto the interests hereby conveyed, and that the
Easement Area is free from all encumbrances, except real estate taxes and
installments of special assessments payable therewith which are not now
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delinquent. And the Easement Area, in the quiet and peaceable possession of Edina,
its successors and assigns, for the purposes hereby granted against all persons
lawfully claiming or to claim the whole or any part thereof, subject to the
encumbrances hereinbefore mentioned, Owner will warrant and defend.
The purpose of this Conservation Restriction is to assure that the
Easement Area shall at all times: (i) remain in its present natural condition; (ii)
constitute scenic surroundings; and (iii) constitute a suitable habitat for fish and /or
wildlife. To accomplish this purpose, Owner, for Owner and Owner's heirs,
representatives, successors and assigns, does hereby covenant and agree that:
1. No buildings or other structures of any kind, and no roads, signs,
billboards or other advertising of any kind, and no utility equipment poles, wires or
other material of any kind, shall hereafter be erected, installed, constructed or
placed, or allowed to be erected, installed, placed or constructed, on or above all or
any part of the Easement Area without the express prior written approval of Edina.
2. No soil or other substance or material shall be dumped or placed , or
allowed to be dumped or _placed, as landfill or for any other purpose, reason or cause
on all or any part of the Easement Area without the express prior written approval
of Edina.
3. No trash, waste or unsightly or offensive materials shall be dumped
or placed, or allowed to be dumped or placed, on all or any part ,of the Easement
Area without the express prior written approval of Edina.
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4. No trees, shrubs or other vegetation shall be removed, or be allowed
to be removed, from all or any part of the Easement Area without the express prior
written approval of Edina.
5. No loam, peat, gravel, soil, rock or other material or substance shall
be excavated, dredged or removed, or allowed to be excavated, dredged or removed,
from all or any part of the Easement Area without the express prior written
approval of Edina.
6. No activities detrimental to drainage, flood control, water
conservation, erosion control, soil conservation or fish and /or wildlife habitat
preservation, and no other acts or uses detrimental to the retention or preservation
of the Easement Area as a natural and scenic open or wooded space or as a fish
and /or wildlife habitat, shall be conducted or permitted to be conducted on all or
any part of the Easement Area without the express prior written approval of Edina.
7. No surface use shall be made of all or any part of the Easement Area
except for purposes consistent with the maintenance and preservation of the
Easement Area in its natural condition without the express prior written approval
of Edina.
8. The Easement Area shall be maintained at all times by Owner and
Owner's heirs, representatives, successors and assigns, in full compliance with all
applicable ordinances of Edina now or hereafter enacted and in full compliance with
the provisions of this Conservation Restriction.
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9. This Conservation Restriction shall not operate to grant to Edina the
right to use or improve, or to permit the public to use or improve, the Easement
Area as or for a park.
10. The rights and remedies in law and in equity given by the laws of
Minnesota, including, without limitation, Minnesota Statutes § 84.65 or any
successor statute, as such statutes may hereafter be supplemented, modified or
amended, shall be available to Edina. Also, if there shall be a violation or breach, or
an attempt to violate or breach, any of the terms, covenants or conditions of this
Conservation Restriction, Edina may prosecute any proceedings at law or in equity
against the person, firm or corporation violating or breaching, or attempting to
violate or breach, any such term, covenant or condition, to either prevent such
violation or breach or to recover damages for such violation or breach. Also, Edina,
in the event of such violation or breach, without notice, may, at its option, enter
upon the Easement Area with such personnel, equipment and material as it
determines necessary, to undertake and perform the term, covenant or condition so
violated or breached, or to cure the violation or breach, and the cost incurred,
including attorneys' fees, with interest at the highest rate then allowed by law, or, if
no maximum rate is applicable, then at the rate of twelve percent (12 %) per annum,
shall be payable by Owner, and Owner's heirs, representatives, successors and
assigns, on demand made by Edina, its successors and assigns. Such entry shall be
without liability or obligation of any kind to Owner, or any owner or occupant of the
Easement Area, for trespass or damage to the Easement Area, or any property or
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improvements thereon, or for loss of business or business interruption, or any other
cause, all of which liability and obligation is hereby waived by Owner, and if any
person makes any claim against Edina, or its officers, agents, employees,
representatives or contractors for loss or damage to property or business due to such
entry, Owner agrees to hold Edina, and its officers, agents, employees,
representatives or contractors harmless from and indemnified against any loss, cost,
damage or expense, including attorneys' fees whether suit be brought or not, arising
out of such claim, and to pay to Edina, upon demand of Edina, any such loss, cost,
damage or expense, including attorneys' fees, suffered or incurred by Edina, or its
officers, agents, employees, representatives or contractors, with interest at the
highest rate allowed by law, or if no maximum rate is applicable, then at the rate of
twelve percent (12 %) per annum, from the date demanded until paid; provided,
however, that the foregoing hold harmless and indemnity shall not apply to
intentional wrongful acts or omissions or negligence of Edina, or its officers, agents,
employees, representatives or contractors. Owner and Owner's heirs,
representatives, successors and assigns shall also pay all costs of collection thereof,
including attorneys' fees, with interest thereon as above provided, if payment is not
made on demand, whether or not suit be brought. In addition to other remedies
then available for collection of such costs and interest, Edina may levy such costs
and interest against the Easement Area and any other property then included in the
same tax parcel as the Easement Area, in the same manner as special assessments
(without, however, any notice or hearing of any kind) and collect the same with the
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real estate taxes against the whole of such tax parcel which are payable in the year
following the year such costs and interest are so levied, and Owner, for Owner and
Owner's heirs, representatives, successors and assigns, hereby waive any and all
objections to such levy, including, without limitation, the amount thereof, the
hearing process (including the giving of, or failure to give, or error in giving of, any
required notice), and including all rights of appeal from such levy. If such
assessments are not paid before they become delinquent, the whole of such tax
parcel may be sold and conveyed in the same manner as lands forfeited for
nonpayment of real estate taxes are sold and conveyed.
11. The terms, covenants and conditions hereof shall run with the
land and shall be binding on all present and future owners and occupiers of the
Easement Area, and shall only inure to the benefit of Edina, its successors and
assigns, and may be amended or modified at any time and from time to time by the
sole act of Edina and the then record owners of the Easement Area, and maybe
released in whole or in part at any time, and from time to time, by the sole act of
Edina.
12. Each person who is now or hereafter a record owner of all or any
part of the Easement Area shall be liable hereunder for all liabilities and obligations
accruing hereunder while such a record owner, and if there be more than one such
record owner, such owners shall be jointly and severally liable. However, such
liability shall cease as to such record owner when no longer such a record owner,
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except, however, for liabilities and obligations which accrued while such a record
owner.
13. If any provision of this Conservation Restriction is for any reason
held to be invalid or unenforceable as to any person or circumstance, the application
of such provision to persons and circumstances other than those as to which it shall
be held invalid or unenforceable, shalt not be affected thereby, and all provisions of
this Conservation Restriction in all other respects shall remain in full force and
effect and be valid and enforceable.
IN WITNESS WHEREOF, Owner has caused these presents to be
executed the day and year first above written.
HAND D ENT N
(jam
By
w tnev E. P won
I_ t
NancYVO. Pey on
OWNER
This instrument is exempt from State Deed Tax.
4.4
STATE OF )
4ss.
COUNTY OF MqtM
The foregoing in tr nt was acknowledged before me this c-26 day
of September., 19� by . &vy% the
r3T Jyland Development, Inc. a Minnesota
corporation, on behalf of the corporation.
7
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1392
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STATE OF
) ss.
COUNTY OF fits +may
The foregoing instrument was acknowledged before me this d day
of September 19--, by Whitney E. Peyton and Nancy 0. Peyton , husband and wife.
Drafted By:
Dorsey & Whitney
2200 First Bank Place East
Minneapolis, Mn 55402
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EXHIBIT A
All that part of Lot 1, Block 2, Jyland Whitney
Addition, according to the recorded plat thereof,
Hennepin County, Minnesota, lying easterly of a line
drawn parallel with and 40 feet westerly from the
westerly right of way line of Valley View Road.
All that part of Lot 3, Block 2, Jyland Whitney
Addition, according to the recorded plat thereof,
Hennepin County, Minnesota, lying southeasterly of a
line drawn parallel with and 40 feet northwesterly
from the northwesterly right of way line of Valley
View Road.
All that part of Lot 4. Block 2, Jyland Whitney
Addition, according to the recorded plat thereof,
Hennepin County, Minnesota, lying southeasterly of a
line drawn parallel with and 40 feet northwesterly
from the northwesterly right of way line of Valley
View Road.
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