Exhibit 10.2
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Form of The Nature Conservancy Conservation Easement
FOREST CONSERVATION EASEMENT
This DEED of EASEMENT made this ____ day of ___________, 20__, by
_______________ having an address at ______________________________ (hereinafter
"Grantor") and THE NATURE CONSERVANCY, a non-profit charitable corporation under
the laws of the District of Columbia, with its headquarters at 0000 Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000 (hereinafter "Grantee").
WHEREAS, Grantor is the fee simple owner of a certain tract of land located
in ________, being all of the lands and premises conveyed to the Grantor by
________, by Deed dated ________, and of record at Deed Book __, Volume __, Page
___ in the Office of the Recorder of Deeds in and for the County of ________, in
the State of ________ in and more particularly described in Attachment 1;
WHEREAS, Grantee is a non-profit corporation incorporated under the laws of
the District of Columbia as a tax exempt public charity under Section 501(c)(3)
and 509(a)(1) of the Internal Revenue Code, qualified under section 170(h) of
the Internal Revenue Code to receive qualified conservation contributions, and
having its headquarters at 0000 Xxxxx Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000-
0000 and a local address at ______________, whose purpose is to preserve natural
areas for scientific, charitable, educational and aesthetic purposes;
WHEREAS, Grantor is willing to grant to Grantee this Conservation Easement
over the property, thereby restricting and limiting the use of said property, on
the terms and conditions and for the purposes hereinafter set forth, and the
Grantee is willing to accept such Easement;
WHEREAS, the protected property is associated with and ecologically a part
of a significant natural area which qualifies as a ". . . relatively natural
habitat of fish, wildlife, or plants, or similar ecosystem," as that phrase is
used in P.L. 96-541, 26 U.S.C. 170(h)(4)(A)(ii), as amended, and in regulations
promulgated thereunder;
WHEREAS, the property has scenic, environmental, aesthetic, and economic
value in its present state sufficiently documented in an inventory which may
contain reports, maps, photographs and other documentation of relevant features
including the forest resources of the property on file with Grantee and
incorporated by reference which the parties agree is an accurate representation
and condition of the property at the time of this grant and is intended to serve
as an objective information baseline for purposes relating to the conservation
of the forest resources on the property;
[WHEREAS, the Grantor and Grantee have the common purpose of conserving the
above-described conservation values of the Property in perpetuity, and the
Commonwealth of Virginia has authorized the creation of conservation easements
pursuant to the Virginia Conservation Easement
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Act (Virginia Code Section 10.1-1009, et seq.) and Grantor and Grantee wish to
avail themselves of the provisions of that law; and
OR
WHEREAS, the Grantor and Grantee have the common purpose of conserving the
above-described conservation values of the Property in perpetuity, and the State
of Tennessee has authorized the creation of conservation easements pursuant to
the Conservation Easement Act of 1981 (Tennessee Code Section 66-9-301, et seq.)
and Grantor and Grantee wish to avail themselves of the provisions of that law;
and]
WHEREAS, Xxxxxxx agrees by accepting this grant to honor the intentions of
Xxxxxxx stated herein and to preserve and protect in perpetuity the natural and
forest conservation values of the property.
NOW, THEREFORE, in consideration of the above and the mutual covenants,
terms, conditions, and restrictions contained herein, and for other good and
valuable consideration, and pursuant to the laws of [state of location of the
property], Grantor hereby voluntarily grants and conveys to Grantee this Forest
Conservation Easement in perpetuity over the property of the nature and
character and to the extent hereinafter set forth:
Section 1. It is the purpose of this Easement to assure that the property is
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maintained forever in its forested and/or open condition and to
prevent any use of the property that will significantly impair or
interfere with the forest conservation values of or associated
with the property.
Section 2. Any activity on or use of the property inconsistent with the
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natural and forest conservation purpose of this Easement is
prohibited. Without limiting the generality of the foregoing, the
following activities and uses are expressly prohibited:
(a) No building, road, billboard, fence, utility or other
structure of any kind shall be erected or placed on the
property by the Grantor unless such structure replaces a
pre-existing structure of similar size;
(b) The Property under easement may not be divided, partitioned,
or subdivided, nor conveyed except in its current
configuration as an entity;
(c) No spoils, trash, waste or other similar material shall be
placed or dumped on the property nor shall there be
activities conducted on the property which would be
detrimental to water purity in adjacent water courses, or
which would alter natural water levels and/or flow in or
over this property;
(d) There shall be no excavation, dredging or removal of loam,
peat, gravel, soil, rock, sand, or other material nor any
building of roads or other change in the general topography
of the land, except the maintenance of existing foot trails,
fire lanes or logging roads authorized by the Grantee;
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(e) There shall be no introduction of invasive non-native plant
or animal species on the property;
(f) The removal, destruction or reintroduction of trees, shrubs,
or other vegetation by the Grantor is prohibited except as
may be necessary for (i) the maintenance of existing foot
trails, fire lanes or other accesses, (ii) waterfowl and
wildlife habitat or wetland enhancement to the extent that
such activities do not interfere with the forestry and
conservation purposes of this Easement, (iii) the collection
and removal of dead and downed timber for firewood for non-
commercial personal use by the Grantor; and
(g) The prohibited uses shall not affect Grantor's current
hiking, seasonal hunting or outdoor recreational use being
made of the property and the right to continue such seasonal
hunting or recreational uses, which shall be reserved to the
Grantor, its representatives, successors or assigns.
Section 3. Grantor reserves to itself, its representatives, successors and
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assigns, all rights accruing from its ownership of the property,
including the right to engage in or permit or invite others to
engage in all uses of the property that are not expressly
prohibited herein and which are not inconsistent with the purpose
of this Easement, and including:
(a) The right to commercially harvest timber, together with the
right to construct, use and maintain logging roads, and to
use motorized vehicles, only as necessary for such
operations, provided that such activities are carried out in
accordance with generally accepted forestry practices and
standards set forth in a forest management plan, and with
prior written approval by Grantee under the terms of Section
4(c), below. Said forest management plan shall specifically
indicate actions which will be taken to protect any rare
plant and animal populations and rare plant communities on
the protected property;
(b) The right to sell, give, mortgage, lease, or otherwise
convey the protected property, provided such conveyance is
subject to the terms of this Conservation Easement and
written notice is provided to Grantee in accordance with
Section 17 below;
(c) The right to maintain such structures as currently exist on
the premises (which may be repaired or replaced, but not
expanded, on the same site, in whole or in part by like
structures used for the same or similar purposes);
(d) Grantor and Xxxxxxx acknowledge that the exercise of any
reserved right enumerated herein by the Grantor shall not
relieve Grantor from complying with or obtaining any permit
from any applicable governmental authority prior to the
exercise thereof; and
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(e) Grantor also retains all responsibilities, costs and
liabilities of any kind related to the rights retained under
this Easement for its ownership, operation, upkeep and
maintenance of the property, including the maintenance of
adequate liability insurance coverage.
Section 4. To accomplish the purpose of this Conservation Easement, the
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following rights are conveyed to the Grantee by this Conservation
Easement:
(a) The right to preserve and protect the conservation values of
the protected property;
(b) The right to enter the protected property at all reasonable
times and with prior notice and, if necessary, across other
lands retained by the Grantor, for the purposes of: (i)
inspecting the protected property to determine if the
Grantor is complying with the covenants and purposes of this
Conservation Easement; (ii) taking any and all actions with
respect to the protected property as may be necessary or
appropriate, with or without order of court, to remedy or
xxxxx violations hereof; (iii) making scientific and
educational observations and studies and taking samples in
such a manner as will not disturb the quiet enjoyment of the
protected property by the Grantor; and (iv) monitoring and
management as described below;
(c) The right, but not the obligation, to monitor the condition
of the rare plant and animal populations, plant communities,
and natural habitats on, adjacent to, or associated with the
protected property, and to manage them, if necessary, to
ensure their continued presence and viability on the
protected property. Such activities shall be in accordance
with management practices of Grantee, which may include but
not be limited to mowing, fencing, trapping, prescribed
burning, etc. Any such management activities shall be set
forth in a written management plan to be reviewed by the
Grantor;
(d) The right to prevent any activity on or use the protected
property that is inconsistent with the purpose of this
Conservation Easement and to require the restoration of such
areas or features of the protected property that may be
damaged by any inconsistent activity or use, pursuant to
Section 9; and
(e) Grantee shall retain all responsibilities, costs, and
liabilities of any kind related to the rights granted to and
exercised by it under this Easement, including the
maintenance of adequate liability insurance coverage.
Section 5. Xxxxxxx agrees to release, hold harmless defend and indemnify
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Grantor from any and all liabilities including, but not limited
to, injury, losses, damages, judgments, costs, expenses and fees
which Grantor may suffer or incur as a result of or arising out
of the activities of Grantee on the property. Xxxxxxx agrees to
release, hold harmless, defend and indemnify Grantee from any and
all liabilities including, but not limited to, injury, losses,
damages, judgments, costs, expenses and fees which
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Grantee may suffer or incur as a result of or arising out of the
activities of Grantor on the property.
Section 6. The Grantor agrees to pay any real estate taxes or other
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assessments which may be levied on the property.
Section 7. The Grantor covenants and represents that the Grantor is the sole
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owner and is seized of the property in fee simple and has good
right to grant and convey this Easement; that the property is
free and clear of any and all encumbrances, including but not
limited to, any mortgages not subordinated to this Easement, and
that the Grantee shall have the use of and enjoy all of the
benefits derived from and arising out of this Easement.
Section 8. The Grantor covenants and represents that no hazardous substance
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or toxic waste exists nor has been generated, treated, stored,
used, disposed of, or deposited in or on the property, and that
there are not now any underground storage tanks on the property.
Section 9. In the event of a violation of this Easement, Grantee shall give
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written notice to Grantor or other violator of such violation and
require corrective action sufficient to cure the violation and
restore the portion of the property so injured. In the event the
violation continues or the injury to the property is not cured
within thirty (30) days of the written notice from Grantee, the
Grantee, or its successor or assign, may institute a suit to
enjoin by ex parte, temporary and/or permanent mandatory or
prohibitive injunction such violation, to require the restoration
of the premises to their prior condition, or in the alternative
sue for damages for breach of covenant. Grantee shall have the
right to seek any legal action or remedy at law or in equity,
including specific performance, to enforce the provisions set
forth herein without the necessity of proving either actual
damages or the inadequacy of other available legal remedies.
Xxxxxxx's remedies described herein shall be cumulative and shall
not impair or be construed as a waiver to such right or remedy.
Nothing contained herein shall be construed to entitle Grantee to
bring any action for any injury or change in the property
resulting from causes beyond Grantor's control including fire,
flood or storm.
Section 10. Grantor agrees that these restrictions will be inserted or
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referenced in any subsequent deed or other legal instrument which
conveys either the fee simple title or possessory interest in the
subject property.
Section 11. The grant of this Easement in no way grants the public the right
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to enter said property for any purpose.
Section 12. The parties hereto recognize and agree that the benefits of this
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Easement are gross and assignable, and the Grantee hereby
covenants and agrees that in the event it transfers or assigns
the Easement it holds hereunder, the organization receiving the
interest will be a qualified organization as that term is defined
in Section 170(h)(3) of the Internal Revenue Code of 1986 (or any
other successor section)
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and the regulations promulgated thereunder, which is organized
and operated primarily for one of the conservation purposes
specified in Section 170(h)(4)(A) of the Internal Revenue Code,
and Grantee further covenants and agrees that the terms of the
transfer or assignment will be such that the transferee or
assignee will be required to continue to carry out in perpetuity
the conservation purposes which the contribution was originally
intended to advance.
Section 13. The Grantor hereby agrees that at the time of the conveyance,
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this Conservation Easement gives rise to a real property right,
immediately vested in the Grantee, with a fair market value of
said Conservation Easement as of the date of the conveyance that
is at least equal to the proportionate value that is the
Conservation Easement at the time of the conveyance bears to the
fair market value of the protected property as a whole at that
time.
The proportionate value of the Grantee's property rights shall
remain constant. When a change in conditions takes place which
makes impossible or impractical any continued protection of the
protected property for conservation purposes, and the
restrictions contained herein are extinguished by judicial
proceeding, the Grantee , upon a subsequent sale, exchange or
involuntary conversion of the protected property, shall be
entitled to a portion of the proceeds at least equal to that
proportionate value of Conservation Easement. The Grantee shall
use its share of the proceeds in a manner consistent with the
conversion purposes set forth herein or for the protection of a
"relatively natural habitat of fish, wildlife, or plants or
similar ecosystem," as that phrase is used in and defined under
Section 170(h)(4)(ii) of the Internal Revenue Code, as amended
and in regulations promulgated thereunder.
Section 14. Whenever all or part of the protected property is taken in
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exercise of eminent domain by public, corporate, or other
authority so as to abrogate the restrictions imposed by this
Conservation Easement, the Grantor and the Grantee shall join in
appropriate actions at the time of such taking to recover the
full value of the taking and all incidental or direct damages
resulting from the taking, which proceeds shall be divided in
accordance with the proportionate value of the Grantee's and
Grantor's interests, and Xxxxxxx's proceeds shall be used as
specified above. All expenses incurred by the Grantor and the
Grantee in such action shall be paid out of the recovered
proceeds.
Section 15. This Easement shall be liberally construed in favor of the grant
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to effect the purpose of this Easement. If any provision of this
Easement is found to be invalid, the remaining provisions shall
not be altered thereby.
Section 16. The Grantee is authorized to record or file any notices or
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instruments appropriate to assuring the perpetual enforceability
of this Conservation Easement; for such purpose, the Grantor
appoints the Grantee its attorney-in-fact to execute, acknowledge
and deliver any necessary instrument on its behalf. Without
limiting the foregoing, the Grantor agrees to execute any such
instruments upon request.
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Section 17. Any notices required in this Conservation Easement shall be sent
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by registered or certified mail to the following address or such
address as may be hereafter specified by notice in writing:
Grantor: ____________________________.
Grantee: The Nature Conservancy, 0000 Xxxxx Xxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000-0000, and [insert TNC office local
address]
TO HAVE AND TO HOLD unto Grantee, its successor and assigns forever.
WITNESS the following signatures and seals; and
IN WITNESS WHEREOF, The Nature Conservancy, a District of Columbia
nonprofit corporation, has caused this instrument to be executed on its behalf
by its duly authorized representative.
LANDOWNER:
_____________________________________[SEAL]
_____________________________________[SEAL]
THE NATURE CONSERVANCY,
a District of Columbia nonprofit corporation
By:__________________________________
Its:_________________________________
STATE OF ____________
CITY/COUNTY OF ____________________, to-wit:
The foregoing instrument was acknowledged before me in the jurisdiction
aforesaid this _____ day of _______________, 20__, by _________________________.
My commission expires: ___________________________.
________________________________
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Notary Public
STATE OF ____________
CITY/COUNTY OF ____________________, to-wit:
The foregoing instrument was acknowledged before me in the jurisdiction
aforesaid this _____ day of _____________, 20__, by _______________________, who
is _________________ of The Nature Conservancy, a District of Columbia nonprofit
corporation, on behalf of the corporation.
My commission expires: ___________________________.
________________________________
Notary Public
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PROPERTY CONDITION CERTIFICATION
This is to certify that _________, the Grantor, and _____________________
representing the Grantee, The Nature Conservancy, do accept and acknowledge the
following attached report as an accurate description of the current land uses
and physical features as of _______________ on the ___________ Easement
property. The report, which is being attached hereto and made a part hereof,
contains ____ pages (including appendices) beginning with this certification of
condition; and including a summary sheet; a legal summary setting forth the
Easement's restrictions and retained rights; a description of and background
information on the Easement including acquisition, location, tract description,
physical environment, ecological features, man-made structures/improvements and
land uses affecting the Easement; a state map showing the Easement location; a
road map showing legal access to the Easement property; a portion of a USGS
topographic map showing tract boundaries; and a tracing (reduced) of a survey
map of the ________ Easement property. The appendices include Appendix A: a copy
of the recorded Easement; Appendix B: an aerial photograph of the Easement area;
Appendix C: a photostations map showing the location from which color slides or
photos were taken; Appendix D: a photographic data sheet; Appendix E: slides or
photos of the Easement property; and Appendix F: an ecological and man-made
features of the _____ Easement property.
The Grantor further certifies that to the best of his or her knowledge
there are no structures thereon and that there has been no dumping or discharge
of materials or other activities on the Easement property which are inconsistent
with the terms and covenants contained in the Conservation Easement, original
granted by the Grantor to The Nature Conservancy recorded in the ______ County
Deed Book, Volume ___, Page ____.
GRANTOR: GRANTEE:
THE NATURE CONSERVANCY
__________________________ __________________________
By:
Its:
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STATE OF ______________
CITY/COUNTY OF ____________________, to-wit:
The foregoing instrument was acknowledged before me in the jurisdiction
aforesaid this _____ day of _______________, 20__, by _________________________.
My commission expires: ___________________________.
________________________________
Notary Public
STATE OF ____________
CITY/COUNTY OF ____________________, to-wit:
The foregoing instrument was acknowledged before me in the jurisdiction
aforesaid this _____ day of _______________, 20__, by _________________________,
who is _____________ of The Nature Conservancy, a District of Columbia
nonprofit corporation, on behalf of the corporation.
My commission expires: ___________________________.
________________________________
Notary Public
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