Example of a Conservation Easement

While every conservation easement is unique, reflecting the needs and interests of the landowner, the objectives of the easement holder, and the nature of the land, the following example provides a general idea of the types of issues that typically need to be addressed in a deed of conservation easement.

DEED OF CONSERVATION EASEMENT

THIS DEED OF CONSERVATION EASEMENT is made this _____ day of _[month]_, 200__, by ____________________ and ____________________, husband and wife, having an address at _____________________________________________ (hereinafter "Grantors"), in favor of _____[the land trust]_____, a non-profit _[state of incorporation]_ corporation [qualified to do business in _(state where property is located)_], having an address at _____________________________________________(hereinafter "Grantee").

The following exhibits are attached hereto and made part of this Easement:

Exhibit A - Legal Description of Property
Exhibit B - Site Description/Map of Property
Exhibit C - Baseline Documentation Report
Exhibit D - Mortgage Subordination Agreement

RECITALS

A. Whereas, Grantors are the sole owners in fee simple of certain real property in ____________________ County, ___[state]__, more particularly described in Exhibit A and generally depicted on Exhibit B, both attached hereto and incorporated herein by this reference (the "Property"); and

B. Whereas, the Property possesses significant _[ecological, natural, scenic, open space, educational and/or recreational]_ values (collectively, "Conservation Values") of great importance to Grantors, the people of ____________________ County, and the people of the Sate of _______________; and

C. Whereas, in particular, ___[description of specific conservation values]___; and

D. Whereas, the specific Conservation Values of the Property are documented in an inventory of relevant features of the Property, dated ____________, 200__, ____ on file at the offices of Grantee and attached hereto as Exhibit C and incorporated by this reference ("Baseline Documentation Report"), which consists of reports, maps, photographs, and other documentation that the parties agree provide, collectively, an accurate representation of the Property at the time of this grant and which is intended to serve as an objective information baseline for monitoring compliance with the terms of this grant; and

E. Whereas, both the Grantor and Grantee desire to preserve and conserve these Conservation Values for the public benefit; and

F. Whereas, Grantors intend that the Conservation Values of the Property be preserved and maintained by the continuation of land use patterns, including, without limitation, those relating to timber production that do not significantly impair or interfere with those values; and

G. Whereas, Grantors further intend, as owners of the Property, to convey to Grantee the right to preserve and protect the conservation values of the Property in perpetuity; and

H. Whereas, Grantee agrees by accepting this grant to honor the intentions of Grantors stated herein and to preserve and protect in perpetuity the conservation values of the Property for the benefit of this generation and the generations to come;

I. Whereas, Grantee is a publicly supported, tax-exempt non-profit organization, qualified under Section 501(c)(3) and 170(h) of the Internal Revenue Code, whose primary purpose is the preservation, protection, or enhancement of land in its natural, scenic, historical, agricultural, forested, and/or open space condition.

AGREEMENT

NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of _[state where property is located]_ and in particular __[specific state conservation easement statute]__, Grantors hereby voluntarily grant and convey to the Grantee a Conservation Easement ("Easement") in perpetuity over and across the Property of the nature and character and to the extent hereinafter set forth.

1. Purpose.

It is the purpose of this Easement to assure that the Property, subject to the existing uses described herein, will be retained forever predominantly in its _[e.g., natural, scenic, forested, agricultural and/or open space]_ condition and to prevent any use of the Property that will impair or interfere with the Conservation Values of the Property. Grantors intend that this Easement will confine the use of the Property to such activities, including, without limitation, those involving _[e.g., timber production, farming, ranching, public recreation, hunting, fishing, and/or education]_ that are not inconsistent with the purpose of this Easement.

2. Rights of Grantee.

To accomplish the purpose of this Easement, the following rights are conveyed to Grantee by this Easement:

2.1. To preserve and protect the Conservation Values of the Property.

2.2. To enter upon the Property at reasonable times in order to monitor compliance with and otherwise enforce the terms of this Easement in accordance with Section 7; provided that, except in cases where Grantee determines that immediate entry is required to prevent, terminate, or mitigate a violation of this Easement, such entry shall be upon prior reasonable notice to Grantors, and Grantee shall not unreasonably interfere with Grantors' use and quiet enjoyment of the Property.

2.3. To prevent any activity on or use of the Property that is inconsistent with the purpose of this Easement and to require the restoration of such areas or features of the Property that may be damaged by any inconsistent activity or use, pursuant to the remedies set forth in Section 7.

[2.4. To enhance the habitat values (of specific portions of the property by e.g., conducting grading, planting native trees, shrubs, and other types of vegetation, irrigation, and other activities as may be necessary to restore and enhance the habitat values of the property, all at Grantee's expense).]

[2.5. To enter the Easement area for the purpose of study and to make scientific observations.]

[2.6. To allow, at such times as the Grantee shall deem reasonable and appropriate, the visiting of the Property by the public and by public educational institutions (under such circumstances and according to such rules as the Grantee shall from time to time establish and modify).]

[2.7. To place signs on the Property which identify the land as being protected by this Conservation Easement. The number and location of the signs are subject to Grantors' approval.]

3. Prohibited Uses.

Any activity on or use of the Property inconsistent with the purpose of this Easement is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited:

(While the following are typical restrictions, each easement needs to be individually tailored to meet the needs of the landowners.)

3.1. Subdivision. The legal or de facto division, subdivision, or partitioning of the Property physically, by legal process, or by any other action (including entering into any lease or other agreement) for any purpose, except as may be required by law, is strictly prohibited. The property shall be conveyed only in its entirety, and only as a single parcel.

3.2. Development Rights. The use, exercise, or transfer of development rights on or to the Property, or any portion thereof, as it is now or hereafter may be bounded or described, except as may be required by law for the uses permitted in Subsection 3.4. For the purpose of this subparagraph, "development rights" include, without limitation, any and all rights, however designated, now or hereafter associated with the Property or any other property that may be used, pursuant to applicable zoning laws or other governmental laws or regulations, to compute permitted size, height, bulk, or number of structures, development density, lot yield, or any similar development variable on or pertaining to the Property or any other property.

3.3. Retail, Commercial, or Industrial Activity. Any commercial, industrial, or retail uses of or activity on the Property other than those relating to agriculture, recreation, or home occupations, as permitted under Subsection 4, timber harvesting meeting the requirements of Subsections 3.13 and 3.14, or mineral development meeting the requirements of Subsection 3.19.

3.4. Construction, Improvements and Maintenance. The placement, construction, or maintenance of any buildings, structures, or other improvements of any kind (including, without limitation, fences, roads, parking lots, and utility lines and related facilities) other than the following:

3.4.1. The maintenance, renovation, expansion, or replacement of existing agricultural, residential, and related buildings, structures, and improvements in substantially their present location as shown on Exhibit ____; provided that any renovation, expansion, or replacement of an existing building, structure, or improvement may not substantially alter its character or function or increase its present height, or the land surface it occupies, by more than _______ per cent without the prior approval of Grantee;

3.4.2. The placement or construction, after prior notice to Grantee, of additional buildings, structures, and improvements for agricultural purposes in he designated agricultural area described in Exhibit ___;

3.4.3. The placement or construction, after prior notice to Grantee, of additional accessory structures and improvements for residential purposes (including, without limitation, private recreational facilities such as swimming pools and tennis courts but not including dwelling places of any kind) in the designated residential areas described in Exhibit ___; and

3.4.4. The placement or construction, after prior notice to Grantee, of not more than _____ additional single-family residences in the designated residential areas described in Exhibit _____; provided that none of such additional residences may occupy more than _____ square feet of land surface area or exceed _____ feet in height without the prior approval of Grantee;

3.5. Alteration of Wetlands, Watercourses, and Ponds. The alteration, manipulation, draining, filling, dredging, or diking of wetland areas, watercourses, or ponds described in Exhibit _B_, including any enlargement thereof, or the cultivation or other disturbance of soil within _____ feet of the thread of any watercourse, whose location is indicated on Exhibit _B_, is strictly prohibited.

3.6. Water Pollution. The material degradation or pollution of any surface or subsurface water on or under the Property is prohibited, above and beyond that which may occur from normal agricultural practices and which are permitted under this Easement.

3.7. Alteration of Topography. The Grantor shall not alter the surface of the land, including, without limitation, the excavation or removal of soil, sand, gravel, rock, peat, or sod, except as may be required in the course of any activity expressly permitted herein or, after notice to the appropriate state agency and with the prior approval of Grantee, archaeological investigation; provided that construction materials, such as rock, dirt, sand, and gravel, may be taken for use in connection with permitted activities on the Property only from locations approved by Grantee.

3.8. Soil Degradation or Erosion. Any use or activity that causes or is likely to cause significant soil degradation or erosion is prohibited.

3.9. Wildlife Disturbance or Harassment. Public off-road vehicle use is prohibited. Use of vehicles allowed in Subsection 3.12 shall not disturb or result in the harassment of wildlife. Harassment of wildlife by people or domestic animals is prohibited.

3.10. Non-native Species. The Grantors shall not introduce any non-native plant or animal species.

3.11. Roads. The Grantor shall not construct any roads except in connection with residential, timber management for wildlife habitat protection and enhancement, and activities specifically provided for in Section 4. Any road constructed for temporary use will be reclaimed and restored to its original condition within _[e.g., six (6)]_ months after discontinued use.

3.12. Off-Road Vehicles. The Grantor shall not use vehicles off of existing roads and travelways in a manner which may result in significant erosion or compaction of the soils, impact on the natural appearance of the land, interference with vegetation, or interference with the natural habitats of those animal species found on the Property. Grantor and Grantee recognize, however, that the use of off-road vehicles may be necessary in forest management for protection and enhancement of wildlife habitat, and such limited use is therefore expressly allowed to Grantor, provided that all reasonable efforts are made to minimize any adverse impacts of the use, consistent with the terms and intent of this Easement.

3.13. Removal of Trees. The pruning, cutting down, or other destruction or removal of trees located within the forest preserve areas described in Exhibit _____, except as necessary, in accordance with the current scientifically-based practices recommended by __[e.g., the United States Forest Service, state forest agency, or Society of American Foresters, etc.]_, to control or prevent hazard, disease, or fire or to maintain the designated open space areas described in Exhibit _____, or in accordance with Subsection 3.14.

3.14. Harvesting of Trees. The harvesting of trees within the forest preserve areas described in Exhibit _____ for any purpose other than the purposes set forth in Subsection 3.12, except, after prior notice to Grantee, in accordance with a forest management plan, to be updated at least every _[e.g., five (5) or ten (10)]_ years, that is prepared by a registered professional forester and [reviewed or approved] by Grantee and that is designed to assure the maintenance of good quality growing stock of _[description of desired forest species and age classes mix]_, while protecting soil stability, water quality, and the other conservation values of the Property as identified in the Baseline Documentation Report, including, without limitation, scenic, riparian, and wildlife habitat values.

3.15. Dumping. Trash, debris, ashes, sawdust, concrete, toxic materials, or other non-compostable refuse may not be dumped or otherwise disposed of on the Property, except that generated by normal timber management operations associated with protection and enhancement of wildlife habitat.

3.16. Hazardous Materials. The storage, dumping, or other disposal of toxic and/or hazardous materials or non-compostable refuse on the Property is prohibited, except for the above ground storage and use of fuels, fertilizers, treated lumber, and legal chemicals as necessary for agricultural operations permitted by this Easement. All materials shall be stored in accordance with all applicable laws and regulations, and in a manner which prevents spillage, leakage, and dumping, and which prevents soil and surface water or groundwater contamination, and in a manner which is consistent with the preservation of he Conservation Values of the Property. Notwithstanding anything in this Easement to the contrary, this prohibition does not make the Grantee an owner of the Property, nor does it permit the Grantee to control any use of the Property by the Grantor which may result in the storage, dumping, or disposal of hazardous or toxic materials; provided, however, that the Grantee may bring action to protect the Conservation Values of the Property, as described in this Easement. (This prohibition does not impose liability on the Grantee, nor shall the Grantee be construed as having liability as a "responsible party" under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") or similar federal or state statutes.)

3.17. Utilities. Except as allowed under existing utility easements, or under any additional utility easements that may be taken pursuant to an exercise of eminent domain, no new utility transmission lines, including, without limitation, water, sewer, power, fuel, and communication lines and related facilities, shall be constructed or allowed on the Property, except as necessary to service structures permitted in the Building Area. All new utilities outside the Building Area shall be placed underground, unless mutually agreed upon by the Grantors and the Grantee.

3.18. Signs and Billboards. The Grantor will not construct, maintain, erect, or otherwise display any commercial billboards, signs, or advertisements on or over the Property. Small signage may, however, be displayed to state the name and address of the Property, the names of the persons living on the Property, that the area is protected by this Easement, the prohibition of any unauthorized entry or use of the Property, the advertisement for sale or rent of the Property, or the advertisement or regulation of on-site activities permitted pursuant to Section 4.s

3.19. Mineral Activities. The exploration for, or development and extraction of, oil, gas, and other minerals, rock, gravel, or sand found in, on, or under the Property is prohibited by open-pit, surface mining, or any other method that would significantly impair the or interfere with the Conservation Values of the Property. Prior to engaging in any mineral exploration, development, or extraction by any method not otherwise prohibited by this Subsection, Grantors must notify Grantee and submit a plan for the Grantee's approval that provides for minimizing the adverse effects of the operation on the Conservation Values of the Property. No exploration for, or development and extraction of, oil, gas, and other minerals, rock, gravel, or sand shall be permitted which is violation of Section 170(h)(5) of the Internal Revenue Code and any regulations promulgated thereunder.

4. Reserved Rights.

Grantors reserve to themselves, and to their personal representatives, heirs, successors, and assigns, all rights accruing from their 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 purpose of this Easement. Without limiting the generality of the foregoing, and subject to the terms of Section 3, the following rights are expressly reserved:

(These rights also have to be written carefully to meet the needs of individual owners.)

4.1. To reside on the property;

4.2. To engage in any and all agricultural uses of the property. For the purposes of this Easement, "agricultural uses" shall be defined as: breeding, raising, boarding, pasturing, and grazing livestock of every nature and description; breeding and raising bees, fish, poultry, and other fowl; plating, raising, harvesting, and producing agricultural, horticultural, and forestry crops and products of every nature and description; and the primary processing, storage, and sale, including direct retail sale to the public, of crops and products harvested and produced principally on the Property;

4.3. To engage in any business that is conducted by, and in the home of, a person residing on the Property or that involves the provision of goods or services incidental to, and occupies structures used principally for, the agricultural uses of the Property; and

4.4. To engage and permit others to engage in recreational uses of the Property, including, without limitation, hunting and fishing, that require no surface alteration or other development of the land.

5. Notice and Approval.

5.1. Notice of Intention to Undertake Certain Permitted Actions. The purpose of requiring Grantors to notify Grantee prior to undertaking certain permitted activities, as provided in sections _____, is to afford Grantee an opportunity to ensure that the activities in question are designed and carried out in a manner consistent with the purpose of this Easement. Whenever notice is required, Grantors shall notify Grantee in writing not less than _[e.g., thirty (30)]_ days prior to the date Grantors intend to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistence with the purpose of this Easement.

5.2. Grantee's Approval. Where Grantee's approval is required, as set forth in section(s) _____, Grantee shall grant or withhold its approval in writing within _[e.g., thirty (30)]_ days of receipt of Grantors' written request therefor. Grantee's approval may be withheld only upon a reasonable determination by Grantee that the action as proposed would be inconsistent with the purpose of this Easement.

6. Grantee's Remedies.

6.1. Notice of Violation; Corrective Action If Grantee determines that a violation of the terms of this Easement has occurred or is threatened, Grantee shall give written notice to Grantors of such violation and demand corrective action sufficient to cure the violation and, where the violation involves injury to the Property resulting from any use or activity inconsistent with the purpose of this Easement, to restore the portion of the Property so injured to its prior condition in accordance with a plan approved by Grantee.

6.2. Injunctive Relief. If Grantors fail to cure the violation within _[e.g., twenty (20)]_ days after receipt of notice thereof from Grantee, or under circumstances where the violation cannot reasonably be cured within a _[e.g., twenty (20)]_ day period, fail to begin curing such violation within the _[e.g., twenty (20)]_ day period, or fail to continue diligently to cure such violation until finally cured, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Easement, to enjoin the violation, ex parte as necessary, by temporary or permanent injunction, and to require the restoration of the Property to the condition that existed prior to any such injury.

6.3. Damages. Grantee shall be entitled to recover for damages for violation of the terms of this Easement or injury to any Conservation Values protected by this Easement, including, without limitation, damages for the loss of scenic, aesthetic, or environmental values. Without limiting Grantors' liability therefor, Grantee, in its sole discretion, may apply any damages recovered to the cost of undertaking any corrective action on the Property.

6.4. Emergency Enforcement. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the Conservation Values of the Property, Grantee may pursue its remedies under this Section 6 without prior notice to Grantors or without waiting for the period provided for cure to expire.

6.5. Scope of Relief Grantee's rights under this Section 6 apply equally in the event of either actual or threatened violations of the terms of this Easement. Grantors agree that Grantee's remedies at law for any violation of the terms of this Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in Subsection 6.2, both prohibitive and mandatory, in addition to such other relied to which Grantee may be entitled, including specific performance of the terms of this Easement, without the necessary of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies described in this Section 6 shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity.

6.6. Costs of Enforcement. All reasonable costs incurred by Grantee in enforcing the terms of this Easement against Grantors, including, without limitation, costs of suit and attorneys' fees, and any costs of restoration necessitated by Grantors' violation of the terms of this Easement shall be borne by Grantors; provided, however, that if Grantors ultimately prevail in a judicial enforcement action each party shall bear its own costs.

6.7. Forbearance. Forbearance by Grantee to exercise its rights under this Easement in the event of any breach of any term of this Easement by Grantors shall not be deemed or construed to be a waiver by Grantee of such term or of any of Grantee's rights under this Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantors shall impair such right or remedy or be construed as a waiver.

6.8. Waiver of Certain Defenses. Grantors hereby waive any defense of laches, estoppel, or prescription.

6.9. Acts Beyond Grantors' Control. Nothing contained in this Easement shall be construed to entitle Grantee to bring any action against Grantors for any injury to or change in the Property resulting from causes beyond Grantors' control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by Grantors under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes.

7. Access.

No right of access by the general public to any portion of the Property is conveyed by this Easement.

8. Costs, Liabilities, Taxes, and Environmental Compliance.

8.1. Costs, Legal Requirements, and Liabilities. Grantors retain all responsibility and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property, including the maintenance of adequate comprehensive general liability insurance coverage. Grantors remain solely responsible for obtaining any applicable governmental permits and approvals for any construction or other activity or use permitted by this Easement, and all such construction or other activity or use shall be undertaken in accordance with all applicable federal, state, and local laws, regulations, and requirements. Grantors shall keep the Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantors.

8.2. Taxes. Grantors shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Easement, and shall furnish Grantee with satisfactory evidence of payment upon request.

8.3. Representation and Warranties. Grantors represent and warrant that, after reasonable investigation and to the best of their knowledge:

8.3.1. No substance defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment exists or has been released, generated, treated, stored, used, disposed of, deposited, abandoned, or transported in, on, from, or across the Property;

8.3.2. There are not now any underground storage tanks located on the Property, whether presently in service or closed, abandoned, or decommissioned, and no underground storage tanks have been removed from the Property in a manner not in compliance with applicable federal, state, and local laws, regulation, and requirements;

8.3.3. Grantors and the Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Property and its use;

8.3.4. There is no pending or threatened litigation in any way affecting, involving, or relating to the Property; and

8.3.5. No civil or criminal proceedings or investigations have been instigated at any time or are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of, or failure to comply with, any federal, state, or local law, regulation, or requirement applicable to the Property or its uses, nor do there exist any facts or circumstances that Grantors might reasonably expect to form the basis for any such proceedings, investigations, notices, claim, demands, or orders.

8.4. Remediation. If, at any time, there occurs, or has occurred, a release in, on, or about the Property of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, Grantors agree to take all steps necessary to assure its containment and remediation, including any cleanup that may be required, unless the related was cause by Grantee, in which case Grantee shall be responsible therefor.

8.5. Control. Nothing in this Easement shall be construed as giving rise, in the absence of a judicial decree, to any right or ability in Grantee to exercise physical or managerial control over the day-to-day operations of the Property, or any of Grantors' activities on the Property, or otherwise to become an operator with respect to the Property within the meaning of The Comprehensive Environmental Response, Compensation, And Liability Act of 1980, as amended ("CERCLA"), and _[corresponding state statute]_.

8.6. Hold Harmless. Grantors hereby release and agree to hold harmless, indemnify, and defend Grantee and its members, directors, officers, employees, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively "Indemnified Parties") from and against any and all liabilities, penalties, fines, charges, costs, losses, damages, expenses, causes of action, claims, demands, orders, judgments, or administrative actions, including, without limitation, reasonable attorneys' fees, arising from or in any way connected with: (1) injury to or the death of any person, or physical damage to any Property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, unless due solely to the negligence of any of the Indemnified Parties; (2) the violation or alleged violation of, or other failure to comply with, any state, federal, or local law, regulation, or requirement, including, without limitation, CERCLA and any similar federal or state law, by any person other than any of the Indemnified Parties, in any way affecting, involving, or relating to the Property; (3) the presence or release in, on, from, or about the Property, at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any federal, state, or local law, regulation, or requirement as hazardous, toxic, polluting, or otherwise contaminating to the air, water, or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties; and (4) the obligation, covenants, representations, and warranties of Subsections 8.1 through 8.5, and all costs, liabilities and obligations of ownership of the Property.

9. Extinguishment and Condemnation.

9.1. Extinguishment. If circumstances arise in the future that render the purpose of this Easement impossible to accomplish, this Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. The amount of the proceeds to which Grantee shall be entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Property subsequent to such termination or extinguishment, shall be the stipulated fair market value of the Easement, or proportionate part thereof, as determined in accordance with Subsection 9.2.

In making this Grant the Grantors have considered the possibility that uses prohibited by the terms of this Easement may become more economically valuable than permitted uses, and that neighboring properties may in the future be put entirely to such prohibited uses. It is the intent of both the Grantor and the Grantee that any such changes shall not be deemed to be circumstances justifying the termination or extinguishment of this Easement. In addition, the inability of the Grantor, or his heirs, successors, or assigns, to conduct or implement any or all of the uses permitted under the terms of this Easement, or the unprofitability of doing so, shall not impair the validity of this Easement or be considered grounds for its termination or extinguishment.

9.2. Valuation. This Easement constitutes a real property interest immediately vested in Grantee, which, for the purpose of Subsection 9.1, the parties stipulate to have a fair market value determined by multiplying (1) the fair market value of the Property unencumbered by the Easement (minus any increase in value after the date of this grant attributable to improvements) by (2) the ratio of the value of the Easement at the time of this grant to the value of the Property, without deducting for the value of the Easement, at the time of this grant.

9.3. Condemnation. If all or any part of the Property is taken by exercise of the power of eminent domain or acquired by purchase in lieu of condemnation, whether by public, corporate, or other authority, so as to terminate this Easement, in whole or in part, Grantors and Grantee shall act jointly to recover the full value of the Interest in the Property subject to the taking or in lieu purchase and all direct or incidental damages resulting therefrom. All expenses reasonably incurred by Grantors and Grantee in connection with the taking or in lieu purchase shall be paid out of the amount recovered. Grantee's share of the balance of the amount recovered shall be determined by multiplying that balance by the ratio set forth in Subsection 9.2.

9.4. Application of Proceeds. Grantee shall use any proceeds received under the circumstances described in this Section 9 in a manner consistent with its conservation purposes, which are exemplified by this grant.

10. Assignment.

This Easement is transferable by the Grantee, but the Grantee may assign its rights and obligations under this Easement only to an organization that is (a) a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code (or any successor provision then applicable), and the applicable regulations promulgated thereunder; and (b) authorized to acquire and hold conservation easements under _[state statute]_ (or any successor provision then applicable); and (c) approved as a transferee by the Grantor. As a condition of such transfer, the Grantee shall require the transferee to expressly agree, in writing, to carry out and uphold the conservation purposes of this Easement and otherwise assume all of the obligations and liabilities of the Grantee set forth herein or created hereby. After such transfer, the Grantee shall have no further obligation or liability under this Easement. If the Grantee desires to transfer the Easement to a qualified organization having similar purposes as the Grantee, but the Grantor unreasonable refuses to approve the transfer, a court with jurisdiction shall transfer the Easement to another qualified organization having similar purpose which agrees to assume the responsibilities of the Grantee.

11. Subordination.

At the time of conveyance of this Easement, the Property is subject to a mortgage, the holder of which has agreed by separate instrument, a copy of which is attached hereto as Exhibit D and incorporated by this reference, to subordinate its rights in the Property to the extent necessary to permit the Grantee to enforce the purpose of this Easement in perpetuity and to prevent any modification or extinguishment of this Easement by the exercise of any rights of the mortgage holder.

12. Subsequent Transfers.

Grantors agree to incorporate the terms of this Easement in any deed or other legal instrument by which they divest themselves of any interest in all or a portion of the Property, including, without limitation, a leasehold interest. Grantors further agree to give written notice to Grantee of the transfer of any interest at least _[e.g., twenty (20)]_ days prior to the date of such transfer. The failure of Grantors to perform any act required by this paragraph shall not impair the validity of this Easement or limit its enforceability in any way.

13. Estoppel Certificates.

Upon request by Grantors, Grantee shall within _[e.g., twenty (20)]_ days execute and deliver to Grantors, or to any party designated by Grantors, any document, including an estoppel certificate, which certifies, to the best of Grantee's knowledge, Grantors' compliance with any obligation of Grantors contained in this Easement or otherwise evidences the status of this Easement. Such certification shall be limited to the condition of the Property as of Grantee's most recent inspection. If Grantors request more current documentation, Grantee shall conduct an inspection, at Grantors' expense, within _[e.g., thirty (30)]_ days of receipt of Grantors' written request therefor.

14. Notices.

Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows:

To Grantors: _____________________________

_____________________________

_____________________________

To Grantee: _____________________________

_____________________________

_____________________________

or to such other address as either party from time to time shall designate by written notice to the other.

15. Recordation.

Grantee shall record this instrument in timely fashion in the official records of _______________ County, __[state]__, and may re-record it at any time as may be required to preserve its rights in this Easement.

16. General Provisions.

16.1 Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of __[state]__.

16.2. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed in favor of the grant to effect the purpose of this Easement and the policy and purpose of __[state conservation easement statute]__. 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.

16.3. Severability. If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby.

16.4. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Easement and superseded all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged herein.

16.5. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantors' title in any respect.

16.6. Joint Obligation. The obligations imposed by this Easement upon Grantors shall be joint and several.

16.7. Successors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpituity with the Property. The terms "Grantors" and "Grantee", wherever used herein, and any pronouns used in place thereof, shall include, respectively, the above-named Grantors and their personal representatives, heirs, successors, and assigns, and the above named Grantee and its successors and assigns.

16.8. Termination of Rights and Obligations. A party's rights and obligations under this Easement terminate upon transfer of the party's interest in the Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer.

16.9. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation.

16.10. Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling.

16.11. Interpretation. If any reserved right of the Grantor under this Easement is found to be not in compliance with Section 170(h) of the Internal Revenue Code, or any regulations promulgated thereunder, then such provision shall be interpreted and applied in such a manner as to be in compliance with Section 170(h) of the Internal Revenue Code, and any regulations promulgated thereunder.

16.12. No Merger. Unless the parties expressly state that they intend a merger of estates or interests to occur, then no merger shall be deemed to have occurred hereunder or under any documents executed in the future affecting this Deed of Conservation Easement.

16.13. Warranty of Title. Grantor warrants that he has good and sufficient title to the Property, that he has good right, full power and lawful authority to grant and convey this Easement, that any mortgages or liens on the Property are and shall remain subordinate to the terms of this Easement and that the Property is free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances and restrictions of whatever kind or nature whatsoever which are not subordinate to the terms of this Easement, and Grantor hereby promises to warrant and forever defend the title to the Easement in the quiet and peaceable possession of the Grantee, its successors and assigns, against all and every person or persons lawfully claiming the whole or any part thereof.

TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.

IN WITNESS WHEREOF Grantors and Grantee have set their hands on the day and year first written above.

GRANTOR:

________________________________________
(type name)

________________________________________
(type name)

GRANTEE:

_______________[land trust]_______________

by ______________________________________

its ___________[official capacity]___________