Updated
May 2007
NOTE:
THIS FORM WILL NOT FIT ALL SITUATIONS AND MAY NEED TO BE ADAPTED TO FIT A
PARTICULAR TRANSACTION. NO CHANGES CAN BE MADE TO THIS FORM
WITHOUT THE PRIOR PERMISSION OF CWMTF.
CONSERVATION
EASEMENT ___________
Property Prepared by
and After Recording Return to: NORTH
CAROLINA
________
COUNTY Parcel
No.
CWMTF
No. ______
THIS
DEED OF CONSERVATION EASEMENT
("Conservation Easement") is made on this ____ day of ________,
200_ by and between NAME OF GRANTOR &
address (³Grantor²) and NAME OF GRANTEE & address (³Grantee²).
RECITALS &
CONSERVATION PURPOSES A. Grantor
is the sole owner in fee simple of that certain real property containing ___
acres more or less, located in __________ Township, _____ County, North
Carolina, and more particularly described [by metes and bounds on an attached exhibit, or lot and
block if there is a recorded map or by reference to prior recorded
instruments] (hereinafter the ³Property²). B. Grantee is a non-profit organization [or local government, state
agency, etc.] [This language only applies to a non-profit
grantee: ³established for the
purpose of promoting the preservation of ecologically valuable lands, natural
and wildlife habitat, and lands with significant natural and open space
values in the State of North Carolina for charitable, scientific, educational
and aesthetic purposes²]. C. The
State of North Carolina (³State²) has enacted the Uniform North Carolina
Conservation and Historic Preservation Agreements Act (the ³Act²), Chapter
121, Article 4 of the North Carolina General Statutes (³NCGS²), which
provides for the enforceability of restrictions, easements, covenants or
conditions "appropriate for retaining in land or water areas
predominantly in their natural, scenic, or open condition . . . ." D. The
Clean Water Management Trust Fund, (³Fund²) with an address at 1651 Mail
Service Center, Raleigh, North Carolina 27699-1651 is an independent agency
of the State and is authorized by NCGS Chapter 113A, Article 18, to finance
projects and to acquire land and interests in land, including conservation
easements for riparian buffers for the purposes of providing environmental
protection for surface waters and urban drinking water supplies. E. Grantor and Grantee have agreed to set
aside ____ acres of the Property (as described herein below and hereinafter
referred to as the ³Easement Area²), for the purpose of creating a
Conservation Easement to preserve, enhance, restore, and maintain the natural
features and resources of the Easement Area, to provide habitat for native
plants and animals, to improve and maintain water quality, and to control
runoff of sediment (hereinafter the ³Conservation Values²). [If the Easement Area is less
than the entire parcel, it will need to be described separately. Otherwise, the Property and the
Easement Area would be one and the same and you wouldnıt need to make reference
to a separate easement area.] F. The
Easement Area is described as . . . together with the right of ingress,
egress and regress over, upon and across the Property to and from the
Easement Area. [If the
survey is not recorded or the Property and Easement Area are described by
metes and bounds, attach appropriate exhibits setting for those
descriptions. If the Easement
Area is less than the parent parcel and has no road frontage, include a right
of access across the Property.
We prefer description by reference to a recorded map.] G. Grantor
and Grantee recognize that the Easement Area is located adjacent to the NAME
OF WATER BODY and the Easement Area has been deemed by the State to qualify
as a riparian buffer, addressing the cleanup and prevention of pollution of
the Stateıs surface waters, and the establishment of a network of riparian
buffers. Moreover, Grantor and Grantee recognize that the Easement Area has
other Conservation Values including fish and wildlife conservation, open
space, and scenic values. H. Grantee
has received or will receive a grant from the Fund, identified as Grant
Agreement No. __________ (the ³Grant Agreement²), entered into between the
Grantee and the Fund and effective as of _______________, in consideration of
which the Grantee has agreed to obtain this Conservation Easement. The terms
and conditions of said Grant Agreement are hereby incorporated by
reference. It is on file and
available for public inspection in the offices of the Grantee, the Fund, and
the North Carolina Department of Environment and Natural Resources (³NC
DENR²). I. The
Grantor, Grantee, State and Fund (collectively referred to herein as the
³Parties²) hereto intend that the Conservation Values of the Easement Area
will be preserved and managed in a manner that will protect the quality of
waters of the NAME OF WATER BODY, and otherwise promote the public purposes
authorized by NCGS Chapter 113A, Article 18, and as set forth in the Grant
Agreement. The Parties further
acknowledge and agree that Grantee will accept this Conservation Easement,
that the State will be the ultimate Grantee and holder of this Conservation
Easement, and that Grantor has received consideration for granting this
Conservation Easement to the Grantee and thus restricting the uses of the
Easement Area. J. Grantor
and Grantee acknowledge that the Easement Area is currently unimproved except
for: ______________________. The characteristics of the Easement
Area, its current use and state of improvement are described in an
Environmental Documentation Report (the ³Report²) that is on file in the
offices of the Grantee and the Fund, and available for public
inspection. The Parties
acknowledge that the Report is the appropriate basis for monitoring
compliance with the objectives of preserving the conservation and water
quality values; and that it is not intended to preclude the use of other
evidence (e.g. surveys, appraisals) to establish the present condition of the
Easement Area if there is a controversy over such present condition. [Or if there is no baseline report, use this language:
The Parties acknowledge that an abbreviated description of present conditions
and characteristics of the Property, its current use, and state of
improvements, water quality sensitive species, including rare and endangered
species is attached as Exhibit __ and by this reference incorporated herein. The Parties may use this Exhibit
__ as a basis
for monitoring compliance with the objectives of preserving the conservation
and water quality values of the Property. However, Exhibit __ is not intended to preclude the use of other
evidence (i.e. surveys, appraisals, phase one environmental site assessment)
to establish the present condition of the Easement Area if there is a
controversy over its use.] NOW,
THEREFORE, in
consideration of the premises and the mutual benefits recited herein,
together with other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties hereto, the
Grantor hereby unconditionally and irrevocably gives, grants and conveys
forever and in perpetuity to the Grantee, its successors and assigns, and the
Grantee hereby accepts, this Conservation Easement of the nature and
character and to the extent hereinafter set forth in, over, through and
across the Easement Area, together with the right and easement to preserve
and protect the Conservation Values. The
purposes of this Conservation Easement are to provide environmental
protection for surface waters and to protect the wildlife and natural
heritage values and it shall be so held, maintained, and used therefore. It
is the further purpose of this Conservation Easement to prevent any use of
the Easement Area that will significantly impair or interfere with the
preservation of said Conservation Values. Grantor intends that this
Conservation Easement will restrict the use of the Easement Area to such
activities as are consistent with the Conservation Values described in the
Recitals herein. ARTICLE I.
DURATION OF EASEMENT This Conservation
Easement shall be perpetual. It
is an easement in gross, runs with the land, and is enforceable by Grantee
against Grantor, its representatives, successors, assigns, lessees, agents
and licensees. ARTICLE II.
RIGHTS RESERVED TO GRANTOR (These are by way of example and should be
tailored to your specific situation.) Grantor
reserves certain rights accruing from the fee simple ownership of the
Property, including the right to engage in or permit others to engage in the
uses of the Easement Area that are not inconsistent with the purpose(s) of
this Conservation Easement. All
rights reserved by the Grantor, are reserved for Grantors, their
representatives, successors, and assigns, and are considered to be consistent
with the conservation purposes of this Conservation Easement. The provisions,
conditions, and restrictions of this Conservation Easement apply to the
Property. Except for the specific restrictions and prohibitions made
applicable herein to the Property, Grantor shall continue to own and may use
the Easement Area in any lawful manner.
Grantor expressly reserves the following rights: A. Passive
Recreational Use. Grantor reserves the right to engage and to permit others
to engage in passive recreational uses of the Easement Area as provided
herein, and by Fund approved amendments thereto, requiring minimal surface
alteration of the land, so long as related alterations, construction,
improvements, maintenance, activities and uses pose no threat to the
conservation values of the Property. B. Public
Use and Access.
Grantor reserves the right to allow public access and use of the Property for
the purpose of creating open space with associated recreational activities,
including, without limitation, conducting educational tours, scientific
study, animal/plant observation, walking, biking, fishing, and any other
purposes consistent with these accepted uses and maintaining conservation
values. To accomplish the above
uses, the Grantor may construct and maintain paved or unpaved greenway trails,
two (2) observation/viewing platforms, two (2) Pedestrian Foot bridges,
landscaping screening, and a gated entrance, which are provided by this
Conservation Easement. All
improvements shall be subject to the terms and conditions set forth herein and
by the aforementioned Grant Agreement and Fund approved amendments. C. Hiking
or Greenway Trails. Grantor reserves the right to
construct and maintain paved or unpaved greenway trails on the Property. All trails must
be located at a minimum distance of fifteen (15) feet from the top of the
bank and tributaries of NAME OF WATER BODY, unless such locations are
physically impracticable. In the
construction of such trails and when required by the terrain, boardwalks,
ramps and handrails are permitted herein. If required, all trails and associated improvements may comply with the rules
and regulations of the Americans with Disabilities Act of 1990, Title III
regulations, ADA Standards for Accessible Design, 28 CFR Part 36, revised
July 1994 and amendments thereto (³ADA²) and with the American
Association of State Highway and Transportation Officials (³AASHTO²). The
Grantor may also construct and maintain park benches, litter receptacles, and
trail/feature signs along the greenway trails. All
necessary care shall be taken to complete the construction of such features
in a manner so as not to cause or allow sedimentation of NAME OF WATER BODY
either during or after construction. [We have a special easement template when the sole
purpose is a greenway project.] D. Observation/Viewing
Platform. Grantor reserves the right to
construct, maintain, and repair one (1) observation/viewing platform
constructed of composite building materials on the Easement Area with
optional bench seating, handrails, connecting steps and ramp as required by
the terrain to be located on the bank of the NAME OF WATER BODY as allowed
and approved by the North Carolina Division of Water Quality, provided such
platform is connected to the greenway trails constructed on the
Property. Construction of such
platform must comply with ADA. All necessary care
shall be taken to complete the construction of such features in a manner so
as not to cause or allow sedimentation of NAME OF WATER BODY either during or
after construction. E. Early Successional
Habitat Areas. The Parties agree
and acknowledge that the Grantor reserves the right to establish and maintain
existing areas located along NAME OF WATER BODY in early successional habitat
for the purpose of providing habitat diversity for wildlife species and may
include the planting of various grasses, forbs, and herbaceous vegetation. F. Natural
Community Restoration. The Parties
hereto agree and acknowledge that the City reserves the right to perform all
activities necessary to restore the natural plant and animal communities on
the Property. All necessary care
shall be taken to complete the construction of such features in a manner so
as not to cause or allow sedimentation either during or after construction. G. Pedestrian
Foot Bridges. Grantor reserves the right to
construct, maintain, and gain
access to two (2) pedestrian footbridges to be constructed five (5) to
ten (10) feet wide in compliance with the AASHTO and with the ADA. Such bridges may be located across
the NAME OF WATER BODY and tributaries thereto, provided such bridges are
connected to the greenway trails permitted herein.
Notwithstanding the foregoing, all
amenities and improvements to be located on the Easement Area must comply
with the terms set forth herein and in the aforementioned Grant
Agreement. The Grantor
shall maintain the Easement Area in a clean, natural and undisturbed state,
and shall comply with all applicable land use regulations, and other
applicable laws and ordinances, subject to this Conservation Easement. The
total cleared, and not re-vegetated, pervious and impervious surface areas
associated with all aforesaid improvements, including, but not limited to,
the greenway trails, boardwalks, ramps, steps, observation/viewing platforms,
pedestrian bridges, shall not exceed ten percent (10%) of the total area of
the Easement Area. Furthermore,
the Parties have no right to agree to any activity that would result in the
termination of this Conservation Easement. ARTICLE III.
PROHIBITED AND RESTRICTED ACTIVITIES (These are generally not negotiable.) Any
activity on, or use of, the Easement Area inconsistent with the purposes of
this Conservation Easement is prohibited. The Easement Area shall be maintained in its natural,
scenic, wooded and open condition and restricted from any development or use
that would impair or interfere with the conservation purposes of this
Conservation Easement. Except
for those rights specifically reserved to Grantor in Article II and without
limiting the generality of the foregoing, the following activities and uses
are expressly prohibited or restricted. A. Industrial
and Commercial Use. Industrial and commercial activities
and any right of passage for such purposes are prohibited on the Easement
Area. B. Agricultural,
Grazing and Horticultural Use.
Agriculture, grazing, horticultural and animal husbandry operations
are prohibited on the Easement Area. C. Disturbance
of Natural Features, Plants and Animals. There shall be no cutting or removal of trees, or the
disturbance of other natural features within the Easement Area except as
noted in Article II above and for the following: (1) as incidental to boundary marking, fencing, signage,
(2) selective cutting and prescribed burning or clearing of vegetation and
the application of mutually approved herbicides and pesticides for fire
containment, protection and damage, insect and disease control, storm-related
damage, human safety, restoration of hydrology, wetlands enhancement and/or
control of non-native plants; subject however to a written plan for same
prepared by a registered
forester, (3) hunting and fishing pursuant to applicable local, state and
federal rules and regulations; and (4) removal of damaged trees and debris
caused by storm and fire and posing a threat to life or property. D. Construction
of Buildings and Recreational Use.
There shall be
no constructing or placing of any building, mobile home, asphalt or concrete
pavement, billboard or other advertising display, antenna, utility pole,
tower, conduit, line, pier landing, dock or any other temporary or permanent
structure or facility on or above the Easement Area except within the Upland
Area as noted in Article II above and for the following: placement and display of no trespassing
signs, local, state or federal traffic or similar informational signs, for
sale or lease signs, boundary fencing, entry signs, signs identifying the
Conservation Values and purposes of the Easement Area, and/or signs
identifying the Grantor as owner of the Property, the Grantee and State as
holders of this Conservation Easement, and the Fund as the source of funding
for the acquisition of the Conservation Easement; signs proclaiming that the
Easement Area will remain in its protected state, educational and
interpretative signs, identification labels or any other similar temporary or
permanent signs, reasonably satisfactory to the Fund. E. Mineral
Use, Excavation, Dredging. There shall be no filling, excavation,
dredging, mining or drilling; no removal of topsoil, sand, gravel, rock,
peat, minerals or other materials, and no change in the topography of the
land in any manner except as necessary for the purpose of combating erosion
or incidental to any conservation management activities otherwise permitted
in the Easement Area. F. Wetlands
and Water Quality. Except as set forth in Article II
above, there shall be no pollution or alteration of water bodies and no
construction or other activities that would be detrimental to water purity or
that would alter natural water levels, drainage, sedimentation and/or flow in
or over the Easement Area or into any surface waters, or cause soil
degradation or erosion, nor any diking, dredging, alteration, draining,
filling or removal of wetlands, except activities to restore natural
hydrology, wetlands enhancement, or to enhance or improve water quality as
permitted by state and any other appropriate authorities. H. Dumping.
Dumping of soil, trash, ashes,
garbage, waste, abandoned vehicles, appliances, or machinery, or other
materials on the Easement Area is prohibited. Manure from the equestrian facility permitted in Article
II above must be either disposed of offsite or may be applied to the pasture
in the Upland Area if applied at agronomic rates as published by the North
Carolina Cooperative Extension Service.
I. Conveyance
and Subdivision. The Easement Area may not be
subdivided, partitioned nor conveyed, except in its current configuration as
an entity or block of property. J. Mitigation.
There shall be no use of the Easement Area or any portion thereof to
satisfy compensatory mitigation requirements under 33 U.S.C. Section 1344 or
N.C.G.S. 143-214.11 or any successor or replacement provision of the
foregoing. ARTICLE IV. ENFORCEMENT AND REMEDIES A. Enforcement.
To accomplish the purposes of this Conservation Easement, Grantee is
allowed to prevent any activity on or use of the Easement Area that is
inconsistent with the purposes of this Conservation Easement, and to require
the restoration of such areas or features of the Easement Area that may have
been damaged by such activity or use. Upon any breach of the terms of this
Conservation Easement by Grantor that comes to the attention of the Grantee,
the Grantee shall, except as provided below, notify the Grantor in writing of
such breach. The Grantor shall have ninety (90) days after receipt of such
notice to correct the conditions constituting such breach. If the breach remains uncured after
ninety (90) days, the Grantee may enforce this Conservation Easement by
appropriate legal proceedings including damages, injunctive and other relief.
The Grantee shall also have the power and authority, consistent with its
statutory authority: (a) to prevent
any impairment of the Easement Area by acts which may be unlawful or in
violation of this Conservation Easement; (b) to otherwise preserve or protect
its interest in the Easement Area; or (c) to seek damages from any
appropriate person or entity. Notwithstanding
the foregoing, the Grantee reserves the immediate right, without notice, to
obtain a temporary restraining order, injunctive or other appropriate relief
if the breach of the term of this Conservation Easement is or would
irreversibly or otherwise materially impair the benefits to be derived from
this Conservation Easement. The
Grantor and Grantee acknowledge that under such circumstances damage to the
Grantee would be irreparable and remedies at law will be inadequate. The
rights and remedies of the Grantee provided hereunder shall be in addition
to, and not in lieu of, all other rights and remedies available to Grantee in
connection with this Conservation Easement, including, without limitation,
those set forth in the Grant Agreement under which this Conservation Easement
was obtained. B. Right
of Entry and Inspection. Grantee, its employees and agents and
its successors and assigns, and the Fund, have the right, with reasonable
notice, to enter the Property and Easement Area at reasonable times for the
purpose of inspecting the Easement Area to determine whether the Grantor,
Grantorıs representatives, successors or assigns are complying with the
terms, conditions and restrictions of this Conservation Easement. C. Condemnation.
Whenever all or part of the Property is taken by exercise of eminent domain by public, corporate or other
authority, or by negotiated sale in lieu of condemnation, so as to abrogate
the restrictions imposed by this Conservation Easement, the Grantor shall immediately
give notice to Grantee, State and the Fund, and shall take all appropriate
actions at the time of such taking or sale to recover the full value of the
taking and all incidental or direct damages resulting from the taking. The Grantee, its successors and
assigns, shall be entitled to a portion of the proceeds of such sale,
exchange, involuntary conversion of the Property, or any damage award with
respect to any judicial proceeding.
Such portion
shall be equal to the fair market value of the Granteeıs, its successors and
assigns, interest in the Property on the date of the recording of this
Conservation Easement. ³Proceeds of Sale² shall mean the cash value of all
money and property paid, transferred or contributed in consideration for, or
as otherwise required as a condition to the sale, exchange or involuntary
conversion of the Conservation Area, or any damages otherwise awarded as a
result of judicial proceeding, minus the
Grantorıs expenses
from such transaction or proceeding. Grantee shall use its share of the
Proceeds of Sale in a manner consistent with the conservation purposes set
forth herein. D. Changed
Conditions. When a change in conditions gives
rise to the extinguishment of this Conservation Easement or a material term
or provision hereof by judicial proceeding, the Grantee, its successor and
assigns, shall be entitled to a portion of the proceeds of such sale,
exchange, involuntary conversion of the Property, or any damage award with
respect to any judicial proceeding. Such
portion shall be equal to the fair market value of the Granteeıs, its
successors and assigns, interest in the Property on the date of the recording
of this Conservation Easement.
³Proceeds of Sale² shall mean the cash value of all money and property
paid, transferred or contributed in consideration for, or as otherwise
required as a condition to the sale, exchange or involuntary conversion of
the Easement Area, or any damages otherwise awarded as a result of judicial
proceeding, minus
the Grantorıs expenses from such
transaction or proceeding.
Grantee shall use its share of the Proceeds of Sale in a manner
consistent with the conservation purposes set forth herein. E. Acts Beyond
Grantorıs Control. Nothing contained in this
Conservation Easement shall be construed to entitle Grantee to bring any
action against Grantor for any injury or change in the Easement Area caused
by third parties, resulting from causes beyond the Grantorıs control,
including, without limitation, fire, flood, storm, and earth movement, or
from any prudent action taken in good faith by the Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to life, damage
to Easement Area or harm to the Easement Area resulting from such causes. F. Costs
of Enforcement. Any costs incurred by Grantee in
enforcing the terms of this Conservation Easement against Grantor, including,
without limitation, any costs of restoration necessitated by Grantorıs acts
or omissions in violation of the terms of this Conservation Easement, shall
be borne by Grantor.
G. No
Waiver. Enforcement of this Conservation
Easement shall be at the discretion of the Grantee and any forbearance by
Grantee to exercise its rights hereunder in the event of any breach of any
term set forth herein shall not be deemed or construed to be a waiver by
Grantee of such term or of any subsequent breach of the same or of any other
term of this Conservation Easement or of Granteeıs rights. No delay or
omission by Grantee in exercise of any right or remedy shall impair such
right or remedy or be construed as a waiver. ARTICLE
V. TITLE The
Grantor covenants and represents and warrants (i) that the Grantor is the
sole owner and is seized of the Property and the Easement Area in fee simple
and has good right to grant and convey the aforesaid Conservation Easement;
(ii) that there is legal access to the Property and the Easement Area, that
the Easement Area is free and clear of any and all encumbrances, except those
permitted exceptions shown on the attached Exhibit ___, none of which would nullify, impair or
limit in any way the terms or effect of this Conservation Easement; and (iii)
Grantor shall defend its title against the claims of all persons whomsoever,
and Grantor covenants that the Grantee, its successors and assigns, shall
have the right to monitor and defend the terms of the aforesaid Conservation
Easement. ARTICLE VI.
MISCELLANEOUS A. Stewardship
of the Conservation Easement. Pursuant to the terms of the Grant
Agreement, and regardless of whether the Grantee assigns this Conservation
Easement to the State, the Grantee hereby covenants and agrees that it will
monitor and observe the Easement Area in perpetuity to assure compliance with
the purposes and provisions of this Conservation Easement and the provisions
of the Grant Agreement, and that it will report on the condition of the
Easement Area, or provide for such reporting, to the State and the Fund no
less frequently than once a year; and further will report immediately to the
State and the Fund any observed and/or known violations of this Conservation
Easement or the Grant Agreement.
B. Subsequent
Transfers of the Fee.
Grantor agrees for itself, its successors and assigns, that in the event it
transfers the Property, or any portion thereof including the Easement Area
described herein, to notify the Grantee and the State in writing of the names
and addresses of any party to whom the Property is to be transferred at or
prior to the time said transfer is consummated. Grantor, for itself, its successors and assigns, further
agrees to make specific reference to this Conservation Easement in a separate
paragraph of any subsequent lease, deed, or other legal instrument by which
any interest in the Property or Easement Area is conveyed. The Property owner shall not convey the Property
or any interest therein, and shall not incur, assume, or suffer to exist any
lien upon or with respect to the Property without disclosing to the
prospective buyer the Conservation Easement and the obligations of the
Property owner and limitations on use of the Property. C. Subsequent Transfers of
the Conservation Easement. The
Parties hereto recognize and agree that the benefits of this Conservation
Easement are in gross and assignable with any such assignee having all the
rights and remedies of Grantee hereunder. The Parties hereby covenant and agree, that in the event
this Conservation Easement is transferred or assigned, the transferee or assignee of the
Conservation Easement will be a qualified organization as that term is
defined in Section 170(h)(3) of the Internal Revenue Code of 1986, as
amended, or any successor section, and the regulations promulgated there
under (the ³Code²) which is organized or operated primarily for one of the
conservation purposes specified in Section 170(h)(4)(A) of the Code, and a
qualified holder as that term is defined in NCGS §121-35 (2) or any successor
statute. The Parties further
covenant and agree that the terms of the transfer or the assignment will be
such that the transferee or assignee will be required to continue to carry
out in perpetuity the conservation purposes that the contribution was
originally intended to advance as set forth in the Recitals herein. Grantee, its successors or assigns,
hereby covenants and agrees that subsequent to any transfer as provided for
herein, it will continue to monitor and observe the Easement Area in
perpetuity for such purposes set forth by this Conservation Easement and
Grant Agreement, and to report to the Fund and the State any observed
violations on the Easement Area. D. Existing
Responsibilities of Grantor and Grantee Not Affected. Other than as specified herein, this
Conservation Easement is not intended to impose any legal or other
responsibility on the Grantee, or in any way to affect any existing
obligation to the Grantor as owner of the Property, which includes the
Easement Area. Among other
things, this shall apply to: 1.
Taxes. The Grantor shall continue to be
solely responsible for payment of all taxes and assessments levied against
the Property. If the
Grantee is ever required to pay any taxes or assessments on its interest in
the Easement Area, the Grantor will reimburse the Grantee for the same. 2. Upkeep
and Maintenance. The Grantor
shall continue to be solely responsible
for the upkeep
and maintenance of the Easement Area, to the extent it may be required by law. The Grantee shall have no obligation
for the upkeep or maintenance of the Easement
Area. 3. Liability
and Indemnification. If the
Grantee is ever required by a court to pay damages resulting from personal injury or property damage that
occurs on the Easement Area, the Grantor
shall indemnify and reimburse the Grantee for these payments, as well as reasonable
attorneysı fees and other expenses of defending itself, unless the Grantee
has committed a deliberate act that is
determined to be the sole cause of the injury or damage. In
addition, Grantor warrants that Grantee shall be maintained as an additional insured
on Grantorıs liability insurance policies covering the Property. E. Conservation
Purpose. 1.
Grantor and Grantee, for itself, its successors and assigns,
agrees that this Conservation Easement shall be held exclusively for
conservation purposes set forth by the Grant Agreement, this Conservation
Easement and as specified in Section 170(h)(4)(A). 2.
Unless otherwise specifically set forth in this Conservation
Easement, nothing herein shall convey to or establish for the public a right
of access over the Property and Easement Area. 3.
This Conservation Easement shall be construed to promote the
purposes of the North Carolina enabling statute set forth in N.C.G.S. 121-34 et
seq. which authorizes the creation of conservation agreements for
purposes including those set forth in the Recitals herein, and the
conservation purposes of this Conservation Easement, including such purposes
as are defined in Section 170(h)(4)(A) of the Internal Revenue Code. F. Recording.
Grantee shall record this instrument
and any amendment hereto in timely fashion in the official records of _____
County, North Carolina, and may re-record it at any time as may be required
to preserve Grantee's rights. G. Notices.
All notices, requests or other
communications permitted or required by this Agreement shall be sent by
registered or certified mail, return receipt requested, addressed to the
parties as set forth above, or to such other addresses such party may
establish in writing to the other.
All such items shall be deemed given or made three (3) days after
being placed in the United States mail as herein provided. In any case where the terms of this
Conservation Easement require the consent of any party, such consent shall be
requested by written notice.
Such consent shall be deemed denied unless, within ninety (90) days
after receipt of notice, a written notice of approval and the reason
therefore has been mailed to the party requesting consent. H. Amendments.
Grantor and Grantee, or their
successors in interest in the Easement Area, are free to jointly amend this
Conservation Easement to meet changing conditions, provided that no amendment
will be allowed that is inconsistent with the purposes of this Conservation
Easement or affects the perpetual duration of this Conservation Easement.
Such amendment(s) require the written consent of both Grantor and Grantee and
shall be effective upon recording in the public records of Pitt County, North
Carolina. I. Environmental
Condition of the Property. The
Grantor warrants, represents and covenants to the Grantee that to the best of
its knowledge after appropriate inquiry and investigation that: (a) the
Property described herein is and at all times hereafter will continue to be
in full compliance with all federal, state and local environmental laws and
regulations; (b) as of the date hereof there are no hazardous materials,
substances, wastes, or environmentally regulated substances (including,
without limitation, any materials containing asbestos) located on, in or
under the Property or used in connection therewith; (c) that there is no
environmental condition existing on the Property or the Easement Area that
may prohibit or impede use of the Property or the Easement Area for the
purposes set forth herein; and (4)
the Grantor will not allow such uses or conditions. J. Indemnity.
The Grantor agrees to the
fullest extent permitted by law, to defend, protect, indemnify and hold
harmless Grantee from and against all claims, actions, liabilities, damages,
fines, penalties, costs and expenses suffered as a direct or indirect result
of any violation of any federal, state, or local environmental or land use
law or regulation or of the use or presence of hazardous substance, waste or
other regulated material in, on or under the property. K. Entire
Agreement. This instrument sets forth the entire
agreement of the Parties with respect to the Conservation Easement and
supersedes all prior discussions, negotiations, understandings or agreements
relating to the Conservation Easement.
If any provision is found to be invalid, the remainder of the provisions
of this Conservation Easement, and the application of such provision to
persons or circumstances other than those as to which it is found to be
invalid, shall not be affected thereby.
The Parties hereto intend this document to be an instrument executed
under seal. If any party is an
individual, partnership or limited liability company such party hereby adopts
the word "SEAL² following his/her signature and the name of the
partnership or limited liability company as his/her/its legal seal. The Recitals set forth above and the
exhibits, if any, attached hereto are incorporated herein by reference. L.
Interpretation.
This Conservation Easement shall be
construed and interpreted under the laws of the State of North Carolina, and
any ambiguities herein shall be resolved so as to give maximum effect to the
conservation purposes sought to be protected herein. Further, this
Conservation Easement shall be construed to promote the purposes of the Act,
which authorizes the creation of conservation agreements for purposes
including those set forth herein, and such conservation purposes as are
defined in Section 170(h) (4) (A) of the Code. M. Parties.
Every provision of this Conservation Easement that applies to the
Grantors or to the Grantee shall likewise apply to their respective heirs,
executors, administrators, successors and assigns. N. Merger.
The Parties agree that the terms of
this Conservation Easement shall survive any merger of the fee and easement
interest in the Property and Easement Area. O. Subsequent
Liens. No provisions of this Conservation
Easement shall be construed as impairing the ability of Grantors to use this
Easement Area for collateral for borrowing purposes, provided that any
mortgage or lien arising there from shall be subordinated to this
Conservation Easement. The Property owner
shall not convey the Property or any interest therein, and shall not incur,
assume, or suffer to exist any lien upon or with respect to the Property
without disclosing to the prospective buyer the Conservation Easement and the
obligations of the Property owner and limitations on use of the Property. P. Gender.
The designations Grantor, Grantee, State and Fund, as used herein
shall include the Parties, their heirs, administrators, successors and
assigns, and shall include the singular, plural, masculine, feminine or
neuter as the context may require. TO
HAVE AND TO HOLD unto NAME
OF GRANTEE, its successors and assigns, forever. The covenants agreed to and
the terms, conditions, restrictions and purposes imposed as aforesaid shall
be binding upon Grantor, Grantorıs representatives, successors and assigns,
and shall continue as a servitude running in perpetuity with the Property. IN
WITNESS WHEREOF,
Grantor and Grantee, by authority duly given, have hereunto caused these
presents to be executed in such form as to be binding, the day and year first
above written. GRANTOR Name Signature line and notary
paragraph Name Signature line and notary paragraph [Attach appropriate exhibits] |
Updated May 2007