MODEL CONSERVATION EASEMENT
(Note that blanks and italics indicate textual areas that are to be tailored to the individual property. All easements are drafted with the landowner for the specific needs of the property. )
THIS CONSERVATION EASEMENT is granted this _____ day of ____ . 2004, by __________ (NAME), _____________________("Owner(s)"), ____________________ (address) ____________________ (city or village), Ohio ______________(zip) to TECUMSEH LAND PRESERVATION ASSOCIATION, an Ohio, nonprofit corporation also known as the Tecumseh Land Trust (the "Land Trust"), with a tax mailing address of P.O. Box 417, Yellow Springs, Ohio, 45387, under the following circumstances:
A. The Property. Owner is the sole owner in fee simple of approximately ______ acres of real property in County, Ohio which is more particularly described in Exhibit A hereto (the "Property"), and is subject to no restrictions or encumbrances except as described in Exhibit A.
B. Conservation values. The Property possesses agricultural, natural, scenic, open space, and historical conservation values (collectively, the "Conservation Values") which are of great importance to the people of the _________(city or village) of _______ , Ohio, ______ Township, ______ County, and the State of Ohio. In particular, the Property has the following specific Conservation Values, more amply described in Exhibit B hereto:
1. Agricultural values:
2. Natural resource values:
3. Scenic and open space values:
4. Historical values:
C. Baseline Documentation. The Land Trust, with the assistance of Owner, has prepared a report (the "Baseline Documentation") which shows the condition of the Property as of the date this Easement is granted. (A copy of the Baseline Documentation is attached as Exhibit B.)
D. Easement Purposes. By granting to the Land trust the right to preserve and protect the Conservation Values in perpetuity, Owner intends that the Conservation Values of the Property be preserved, maintained and enhanced in perpetuity, by permitting only those uses of the Property which are consistent with, and prohibiting uses of the Property which are inconsistent with, the Conservation Values (the "Easement Purposes").
E. Land Trust. The Land Trust is a publicly supported, tax exempt charitable organization under Section 501 (c)(3) of the Internal Revenue Code of 1986 (the "Revenue Code") which is qualified to acquire and hold conservation easements under Section 170(h) of the Revenue Code and Section 5301.69(B) of the Ohio Revised Code.
NOW, THEREFORE, Owner and the Land Trust agree as follows:
1. Grant of Conservation Easement: Land Trust's Rights and Duties. Owner hereby grants and conveys to the Land Trust in perpetuity a conservation easement with respect to the entire Property on the terms and conditions set forth herein (this "Easement"), to have and to hold forever. The Land Trust hereby accepts the grant and conveyance of this Easement by Owner.
The parties intend that this Easement be a "conservation easement" [and an "agricultural easement"] under Sections 5301.67 to 5301.69LZO1 of the Ohio Revised Code.
In order to accomplish the Easement Purposes, the Land Trust shall have the right and duty to preserve and protect the Conservation Values of the Property and to prevent any use of the Property that is inconsistent with the Easement Purposes, except as provided in Section 3(a).
2. Uses Inconsistent with the Easement Purposes. The Property shall not be used in any manner that is inconsistent with the Easement Purposes. Except as expressly permitted in Section 3(a), uses inconsistent with the Easement Purposes include:
a. subdivision into smaller legal parcels or other development or use of the Property for residential, commercial, or industrial purposes;
b. construction of any new building or other structure on the Property;
c. excavation of the surface of the land that would significantly diminish the quantity or quality of topsoil, including, without limitation, the removal of soil, sand, gravel, rock, peat or sod, and exploration for development or mining or other extraction of minerals or hydrocarbons by any method;
d avoidable soil degradation or erosion or pollution of the air or surface or subsurface water;
e. disposal or dumping of wastes, refuse or debris in ways inconsistent with then current sound agricultural and health practices;
f. placement of advertising signs or billboards greater than 20 square feet on the Property;
g. grant or transfer of any development rights with respect to the Property;
h. any other use inconsistent with the Easement Purposes.
3. Reserved Rights: Owner to Give Certain Notice.
a. Owner reserves the right to use the Property in the following ways:
i. to use the Property for agricultural purposes, using soil and water conservation, pest management, nutrient management, wildlife conservation and habitat protection practices then current, including the right to experiment with ecologically promising agricultural practices not yet generally accepted (collectively, "Permitted Agricultural/Uses");
ii. to raise animals and grow crops;
iii. to harvest trees in a sustainable manner, and cut or prune live trees to prevent property damage or personal injury, disease or fire;
iv. to prohibit or otherwise control access to the Property by the general public;
v. to sell or otherwise transfer the Property as Owner chooses, subject to this Easement, and subject to the Land Trust's First Right to Purchase to protect this Easement (A copy of the First Right to Purchase is attached hereto as Exhibit C);
vi. with prior agreement with the Land Trust, to construct one additional house, necessary agricultural buildings, on no more than a total of _____ acres, restricted to locations marked on a map in Exhibit B, and subject to then current zoning and other regulations;
vii with prior agreement with the Land Trust, to construct ponds;
viii to maintain, remodel, improve, replace, and remove existing buildings;
ix. to use existing buildings for home-based small businesses, such __________;
x. to construct fences necessary for Permitted Agricultural Uses, for landscaping, and to delineate legal boundaries;
xi. to grant easements for utilities necessary to carry out the permitted activities;
xii. to allow all or any portion of the Property to return to native habitat, taking reasonable measures to prevent invasive and destructive species;
xiii. to use the Property in any other way that is not inconsistent with the Easement Purposes.
b. Owner must notify the Land Trust in writing received at least 30 days before Owner undertakes (i) any use of the Property that might have a material adverse effect on the Conservation Values or otherwise might be inconsistent with the Easement Purposes, or (ii) any use reserved to Owner under Section 3. a,__________. Owner's notice must describe the proposed use in suffcient detail to permit the Land Trust to determine on an informed basis whether the use is in compliance with the terms of this Easement. Within 30 days after the Land Trust receives such a notice from Owner, the Land Trust must respond to Owner in writing, stating whether the Land Trust considers the proposed use to be in compliance with the terms of this Easement. If the Land Trust fails to respond within that period, Owner may proceed with the use described in Owner's notice.
4. Periodic Collaborative Review: Land Trust to Monitor the Property. In order to promote good faith and harmonious relations between Owner and the Land Trust, Owner or Owner's representative and representatives of the Land Trust must meet and walk the Property together at least once each year, on a date they select at the initiative of the Land Trust, to review the condition of the Conservation Values of the Property and compliance with this Easement. In addition, representatives of the Land Trust may enter the Property at other reasonable times to monitor compliance with this Easement; however, unless the Land Trust determines that immediate entry on the Property is necessary in order to address an imminent violation of this Easement, the Land Trust must provide Owner at least 30 days notice before entering the Property for monitoring purposes.
5. Enforcement of this Easement. If the Land Trust believes that a violation of this Easement that could irreversibly diminish or impair the Purposes or Conservation Values of the Property has occurred or is threatened, the Land Trust may take immediate, appropriate legal action, including obtaining an injunction, without notice, to stop the violation or to require Owner to restore the Conservation Values of the Property to their condition prior to the violation. If the Land Trust believes a minor (less than irreversible) violation has occurred or is threatened and that it should be remedied or prohibited, the Land Trust first must inform Owner in writing of the nature of the violation the Land Trust believes has occurred and request Owner to take corrective action to cure or avoid the violation and/or to restore any damage to the Conservation Values that has occured as a result of the violation. Owner must take that corrective action within 30 days after Owner receives the Land Trust's notice and, if the violation reasonably cannot be corrected within 30 days, Owner must continue diligently thereafter to correct the violation until it finally is corrected. If Owner fails to correct the violation, the Land Trust may take appropriate legal action, including obtaining an injunction, to stop the violation or to require Owner to restore the Conservation Values of the Property to their condition prior to the violation.
The Land Trust has the right to recover from Owner any costs incurred by the Land Trust in enforcing this Easement, including costs of litigation and reasonable attorneys' fees.
6. Alternative Resolution of Disputes. If a dispute arises between the Land Trust and Owner concerning the consistency of any proposed use or activity within the Purposes or concerning the Conservation Values of this Easement, and the Owner agrees not to proceed with the use or activity pending resolution of the dispute, either party may refer the dispute to mediation by request made in writing to the other. Within 30 days after receipt of such a request, the parties may agree to attempt in good faith to settle the dispute by mediation with a mediator selected by agreement of both.
Any dispute unresolved through mediation may thereafter be submitted to binding arbitration, in accordance with the Ohio Arbitration Act, before one arbitrator (who may, but need not, be a mediator) selected by agreement of Owner and the Land Tnust. The decision of such arbitrator which shall be made in writing, shall be final and binding on both Owner and the Land Trust, and judgment on such decision may be entered in any court having jurisdiction. The arbitrator may apportion the costs of the arbitration among the parties on an equitable basis. The arbitration award may be enforced in court, if necessary.
7. Responsibilities of Owner Not Affected. Except as expressly otherwise provided for in this Easement, the grant of this Easement is not intended to impose any legal or other responsibility on the Land Trust or otherwise to affect the obligations of Owner as owner of the Property. Among other things, this applies to the following:
a. Taxes. Owner shall be solely responsible for the payment of all taxes and assessments levied against the Property;
b. Upkeep. Owner shall be solely responsible for the upkeep and maintenance of the Property:
c. Liability. If the Land Trust ever is required by a court to pay damages resulting from personal injury or property damage that occurs on the Property or as a result of an environmental problem affecting the Property, Owner shall indemnify, defend and reimburse the Land Trust for those payments as well as for reasonable attorneys fees and other expenses the Land Trust may incur in defending itself, unless the Land Trust committed a deliberate act that is determined by the court to be the sole cause of the injury or damage.
8. Transfer of this Easement. The Land Trust may transfer this Easement to any non-profit organization or public entity that, at the time of transfer, is qualified under Section 1 70(h) of the Revenue Code and is qualified under Section 5301.69(B) of the Ohio Revised Code to hold the Easement, but only if two conditions are met: (a) at least 90 days prior to the proposed transfer, the Land Trust holds an open, publicly advertised meeting, inviting all interested parties to visit the Property (if that can be reasonably arranged with Owner) and comment on the merits of the proposed transfer, and (b) the organization or public entity agrees to assume the responsibility of the Land Trust under this Easement.
9. Transfer of the Property. Owner must notify the Land Trust in writing received at least 60 days before any proposed transferrence of any interest in the Property to a third party, thereby giving the Land Trust 60 days to exercise its First Right to Purchase at appraised current use value (which is attached to this Easement as Exhibit D). The document by which Owner transfers any interest in the Property must expressly refer to this Easement. The parties' rights and obligations under this Easement shall be binding on, and shall inure to the benefit of, their respective personal representatives, heirs, successors and assigns.
10. Meaning of Owner and Trust. The terms "Owner" and the "Land Trust" when used in this Easement refer also to the personal representatives, heirs, successors and assigns of Owner who succeed to, and at such time hold, any ownership interest in the Property and the successors and assigns of the Land Trust. If any interest in the Property is transferred in accordance with Section 9 above, the term "Owner" thereafter shall mean the then current Owner of the Property, and the previous "Owner" of the Property shall have no further liability hereunder for matters arising, or any breach of this Easement occurring, prior to the date of transfer.
11. Amendment and Termination of this Easement. This Easement may be amended only with the written agreement of Owner and the Land Trust, [but only if at least 90 days prior to the proposed amendment taking effect, the Land Trust and Owner hold an open, publicly advertised meeting, inviting all interested parties to comment on the merits of the proposed amendment (This clause to be decided by the Board.)] Any amendment must be consistent with the Easement Purposes and in compliance with Section 1 70(h) of the Revenue Code and Sections 5301.67-.70 of the Ohio Revised Code.
If, at the joint request of Owner and the Land Trust, a court with jurisdiction determines that the conditions on or surrounding the Property have changed so much that it has become impossible to fulfill the Easement Purposes, the court may terminate this Easement. If this Easement is terminated and the Property is sold or taken for public use, the Land Trust shall receive a percentage of the proceeds based on the ratio of the value of this Easement on the date it was granted to the unrestricted fair market value of the Property on that date, in accordance with the regulations adopted under Section 170(h) of the Ohio Revised Code.
12. Recording. The Land Trust shall record this Easement in timely fashion in official records of Clark County, Ohio, and may re-record it at any time in order to preserve its rights under this Easement. IN WITNESS WHEREOF, the Owner and the Land Trust have signed this instrument as of the day and year first above written.WITNESSES "OWNER" _____________________ ____________________ (as to both) NAME _____________________ ____________________ (as to both) NAME . "LAND TRUST"TECUMSEH LAND PRESERVATION
ASSOCIATION _____________________ _____________________ (as to both) NAME, President _____________________ _____________________ (as to both) NAME, Secretary STATE OF OHIO
COUNTY OF ___________________
The foregoing instrument was acknowledged before me this ____ day of ______ 200_, by ________, President, and _____________, Secretary, respectively, of the Tecumseh Land Prservation Association, an Ohio nonprofit corporation, on behalf of the corporation.
This Instrument prepared by:
STATE OF OHIO COUNTY OF
The foregoing instrument was acknowledged before me this _______ day of 200_,
by ________ . President, and ___________
Secretary, respectively, of the Tecumseh Land Preservation Association, an Ohio nonprofit corporation, on behalf of the corporation.
This Instrument prepared by: