Exhibit 10.1
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Form of The Forest Bank Forest Management and Conservation Easement
FOREST MANAGEMENT AND CONSERVATION EASEMENT
This DEED of EASEMENT made this ____ day of ___________, 20__, by
______________ having an address at _________________________________
(hereinafter "Grantor") and THE FOREST BANK, LLC, a Delaware limited liability
company, having an address at _____________________________ (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
(hereinafter "the Property");
WHEREAS, Grantee is a limited liability company whose primary purpose is
the maintenance of healthy ecological systems and the conservation and
management of forest lands in their scenic and forested condition while
providing an economic return to the landowner;
WHEREAS, Grantor is desirous of maintaining the forests which now exist on
Grantor's property and of enabling those forests and timber resources to be
managed in an environmentally sensitive manner and of receiving an economic
return as described in Attachment 2 [the Forest Bank membership unit
certificate];
WHEREAS, Grantor is willing to grant to Grantee this Easement over the
Property, including the right to manage and selectively harvest the timber
resources thereon, 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, said 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 management 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 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 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
Management and 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 secure the retention of the
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Property 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. Grantee shall use the Property for forest conservation, and for
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forestry, and for no other purposes.
Section 3. Grantor shall use the Property for non-commercial recreation and
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open space purposes, and for any purpose not inconsistent with the
management and retention of the property for forest and ecosystem
conservation and forestry purposes as specified herein.
Section 4. Grantor and Xxxxxxx acknowledge that the principal objective of this
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grant of easement is to conserve and utilize the productive forestry
resources on the Property and to encourage the long-term,
professional management of those resources, subject to the following
objectives (recognizing that the resource values of the Property,
and the state of knowledge as to responsible forest management
standards will evolve over time):
(a) Facilitate economically and ecologically sustainable,
commercially viable management and production of forest and
timber resources without compromising surface water quality,
permanent scenic benefits, wildlife habitat and other values;
(b) Manage forest stands for high quality sawtimber utilizing long
rotations and maintaining a healthy, and biologically diverse,
forest; and
(c) Conduct forest management and harvesting activities (including
the establishment, maintenance and reclamation of log landings
and skid roads) using the best available management practices
in order to prevent soil erosion and to protect water quality.
Section 5. On or before ______________, and not less than every ten years
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thereafter, Grantee will develop a Forest Management and Stewardship
Plan for the Property (hereinafter, "Forestry Plans"). Each such
Plan shall be consistent with the purposes of this Easement and may
include at least the following elements:
(a) Environmental attributes (topography, soils, wetlands and
streams);
(b) A description of the units into which the property will be
divided by Grantee for management purposes ("Stands");
(c) Forest Management objectives;
(d) Forest stand descriptions (forest types, descriptions, goals
and treatments);
(e) Tract information (history, growth rates, tree quality, insects
and disease, future potential, access and operability); and
(f) Wildlife and biodiversity considerations (identifications of
species and management recommendations).
Section 6. To accomplish the purpose of this Easement, Grantee may:
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(a) Preserve and protect the conservation values of the Property;
(b) Perform and contract for the performance of forest management
activities, and harvest timber, wood and other forest products
existing at the time of this grant and which may grow on the
property in the future, and may replant trees and seedlings on
the property to regenerate forest growth for future harvesting
and management. All of such activities shall be performed in
accordance with Forestry Plans approved as set forth in Section
5 above, provided that, prior to commencing timber harvesting
activity Grantee shall provide Grantor with not less than
thirty (30) days prior written notice. Nothing in this clause
shall be interpreted to require Grantee to harvest a Stand, but
only to
require that any such harvest be in accordance with the
approved Forestry Plan, as amended, should Grantee elect to
harvest;
(c) Construct, maintain, repair, place and use timber haul roads,
log landings, and skid trails; construct, maintain and use
forestry structures or facilities, together with necessary
access drives and utilities and extract sand and/or gravel,
provided such activities are exclusively for uses related to
the forestry or property maintenance activities permitted under
this Grant; provided further that such activities are in
furtherance of the Forestry Plan prepared pursuant to Section 5
above, and provided further that any such construction and the
extraction site(s) will be operated, maintained and closed in a
manner which minimizes and to the extent possible prevents soil
erosion and surface water degradation;
(d) Enter upon the Property at reasonable times in order to carry
out the purposes and activities of this Easement and otherwise
enforce the terms of this Easement; provided that such entry
shall not unreasonably interfere with Grantor's use and quiet
enjoyment of the Property;
(e) Enter the Property and the timber subject to this easement in
any carbon sequestration or other banking or pollution
mitigation program and receive the benefits of such program or
system; and
(f) Prevent any activity on or use of the Property that is
inconsistent with the purpose of this Easement.
Section 7. Any activity on or use of the Property inconsistent with the forest
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management 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, excepting the maintenance of existing foot trails,
fire lanes or logging roads authorized by the Grantee;
(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;
(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;
(h) Nothing shall be done to deny legal right-of-way to
representatives of the Grantee to the portion of a landowners
property that is covered by this easement; and
(i) No other acts or uses will be permitted which will adversely
affect Grantee's ability to carry out its forestry activities
or the preservation of land or water areas on or adjacent to
the Property.
Section 8. 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 are not inconsistent with the purposes of this Easement.
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 9. Grantee shall keep the Grantor's interest in the Property free of
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any liens arising out of any work performed for, materials furnished
to or
obligations incurred by Grantee; 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 10. 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 Grantee may
suffer or incur as a result of or arising out of the activities
of Grantor on the Property.
Section 11. The Grantor agrees to pay any real estate taxes or other
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assessments which may be levied on the Property.
Section 12. 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 13. 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 14. 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 15. If this Easement is taken, in whole or in part, by exercise of
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the power of eminent domain, Grantee as well as Grantor, shall be
entitled to compensation for their respective interests in
accordance with applicable law.
Section 16. 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 17. 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 18. 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.
TO HAVE AND TO HOLD unto Grantee, its successor and assigns forever.
WITNESS the following signatures and seals; and
IN WITNESS WHEREOF, The Forest Bank, LLC, a Delaware limited liability
company, has caused this instrument to be executed on its behalf by its duly
authorized representative.
LANDOWNER:
__________________________[SEAL]
__________________________[SEAL]
THE FOREST BANK, LLC,
a Delaware limited liability company
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: ___________________________.
________________________________
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 Forest Bank, LLC, a Delaware limited liability
company, on behalf of the company.
My commission expires: ___________________________.
________________________________
Notary Public
