CONSERVATION EASEMENT
STATE OF TEXAS §
COUNTY OF _________ §
This Grant of Conservation Easement ("Easement") is made on this ______ day of ___________, 2010, by _________________, with an address of ______________________, and ________________, with an address of ____________________________ ("Grantor"), and Texas Land Conservancy, a non-profit corporation organized and existing under the laws of the State of Texas, with an address of P. O. Box 162481, Austin, Travis County, Texas 78716-2481 ("Grantee").
R E C I T A L S:
A. Grantor is sole owner in fee simple of certain real property legally described in Exhibit A, and depicted in Exhibit B, attached hereto and incorporated by this reference, which consists of approximately ___________ acres located in ________ County, State of Texas, hereinafter referred to as the “Property”; which has nationally significant value in its present state as natural habitat.
B. Conservation Values and Purposes. The Property possesses significant natural, ecological, and aesthetic values for conservation purposes (collectively, the “Conservation Values”) which this Conservation Easement is designed to protect in perpetuity, and which are of importance to the Parties, to the people of _____ County where the Property is located, and to the people of the State of Texas. These Conservation Values include, but are not necessarily limited to, natural resource, ecological, and scientific values including wildlife and plant resources, as well as scenic and open space values.
support the biological diversity of the many plant and animal species that are dependent on the water sources, nesting habitat, and food sources found on the Property; and will help to ensure that this area and its existing features will continue to be available for its natural habitat values. The preservation of this Property along the _____ Creek corridor will preserve valuable open space and reduce land fragmentation in this rapidly growing area adjacent to the City of ______. Some of the natural systems to be protected that are well represented in the Property include, without limitation: insert Conservation Values here.
The Parties intend that this Conservation Easement provide significant public benefit as defined in Treasury Regulations (“Treas. Reg.”) § 1. 170A-14(d)(3) and (4). The Property is a natural area which qualifies as a “relatively natural habitat of fish, wildlife, or plants, or similar ecosystem”, as that phrase is used in the Internal Revenue Code of 1986, as amended, the “Code”) § 170(h)(4)(A)(ii). The Conservation Values also include the significant public benefit of preserving open space from development and providing protection for scenic qualities unique to the area. The Property is visible to the general public from if visible from public road insert information here. Although the Conservation Easement generally will not allow public access, Grantor may allow limited public access with proper notice for conservation research and small-scale public educational activities such as camping and nature activities on at least a portion of the Property, subject to § 5 herein. The Property is preserved pursuant to a clearly delineated state, and local conservation policy and yields a significant public benefit. Legislation, regulations, and policy statements that establish relevant public policy include, but are not limited to the following: promulgated thereunder; specifically, the Property contains __________________________________________________ and plant and animal species, natural and native plant communities and wildlife typical of the ______________ region of Texas, hereinafter referred to as "Conservation Values" of the Property.
1) Conservation easements, as stipulated in the Texas Natural Resources Code, § 183.001(1) et seq., “designed to retain or protect natural, scenic, or open-space values of real property or assure its availability for agricultural, forest, recreational, or open-space use”; protect natural resources and maintain or enhance water quality; 2) Protection of wild animals as property of the State of Texas as stipulated in the
Texas Parks and Wildlife Code, §1.011 et seq.;
seq., §16.053 et seq., §16.054 et seq., §26.003 et seq. and §26.012 et seq.;
4) The protection of “qualified open space” and the promotion of wildlife management activities under Article 8, § 1-d-1 of the Texas Constitution and the Texas Property Tax Code, Title 1, § 23.51(1);
5) Farmland preservation as stipulated in the State Agricultural Policy, §2.003(12) et
seq.; and
C. Easement Documentation Report. The ecological, agricultural and other characteristics of the Property, its current use and state of improvement, are described in a report entitled Baseline Conservation Easement Documentation Report of _____ Ranch”, dated ________, 2009, (“Baseline Report”) mutually agreed upon and signed by Grantor and Grantee. The Baseline Report was, prepared pursuant to Treas. Reg. § 1.170A-14(g) (5), and establishes the baseline condition and acknowledged prior to the Effective Date, which will be kept on file at Grantee’s office, and is incorporated into this Conservation Easement by this reference to the same extent as if attached hereto. The Baseline Report has been prepared by Grantee and signed and acknowledged by Grantor, and a copy has been provided to Grantor. Both parties agree that this Baseline Report provides and accurate representation of the Property as of the Effective Date of this Conservation Easement. The report will be used by Grantor and Grantee to assure that any future changes in the use of the Property will be consistent with the terms of this Easement. However, the Baseline Report is not intended to preclude the use of other evidence to establish the present condition of the Property if there is a controversy over its use
D. State Law Authorization. Grantor and Grantee have the common purpose of conserving the above-described conservation values Conservation Values of the Property in perpetuity, and the State of Texas has authorized the creation of Conservation Easements pursuant to The Texas Natural Resource Code Chapter 183 and Grantor and Grantee wish to avail themselves of the provisions of that law.
described in section 170(b)(1)(A)(vi) of the Code which has the commitment to protect the conservation purposes of the donation and resources to enforce the restrictions.
NOW, THEREFORE, Grantor, for and in consideration of the facts recited above and of the mutual covenants, terms, conditions and restrictions contained herein and as an absolute and unconditional gift, hereby gives, grants, and conveys unto Grantee a Conservation Easement in perpetuity over the Property, of the nature and character as follows:
1. PURPOSE. The purpose of this Easement is to ensure that the Property will be
retained forever predominantly in its scenic and natural condition; to protect native vegetation and wildlife; to prevent any use of the Property that will impair or interfere with the Conservation Values described above, while allowing uses of the Property that may be conducted in a manner which is compatible with, and not destructive of, the Conservation Values of the Property.
Grantor will not perform, nor knowingly allow others to perform, any act on or affecting the Property that is inconsistent with the purposes of this Easement. However, unless otherwise specified below, nothing in this Easement shall require Grantor to take any action to restore the condition of the Property after any act of God or other event over which Grantor had no control. Grantor understands that nothing in this Easement relieves him of any obligation or restriction on uses of the Property imposed by law
2. RESTRICTIONS AND RESERVED RIGHTS. By the grant and conveyance of this
2.1 Subdivision. The Property may not be further divided, subdivided or partitioned, nor conveyed or pledged for a debt except in its current configuration as a single entity.
2.2 Commercial Development. Any commercial business or occupation that is conducted by, and in the home of, persons residing on the Property, is allowed. Any commercial or industrial use of or activity on the Property, other than those relating to agriculture, recreation, and home businesses as permitted herein is prohibited. No golf courses or driving ranges, athletic fields, racetracks, off-road vehicle courses, shooting ranges, wind farms, solar arrays, communication towers, or other large-scale commercial or recreational uses are permitted on the Property. Outdoor education activities, such as field trips or nature hikes, which are consistent with the purpose of this Conservation Easement, are permitted.
2.3 Construction. Structures existing at the time of this grant are depicted on Exhibit B and in the Baseline Report. These structures include ____________ (list). Grantor shall have the right to construct up to ___ new residences, associated outbuildings and related facilities for residential or recreational use. Each new residence shall be located within a building envelope (“Building Envelope”) of two (2) acres or less. The total construction footprint in any Building Envelope, including primary residence, guesthouses, outbuildings, landscaped areas, and any other construction, shall not exceed 10,000 square feet in area, nor be taller than two stories in height. Paved or unpaved access roads not to exceed ____ feet in width plus associated culverts and drainage features may be built for the purpose of accessing each of the Building Envelopes; access roads are not included in the square footage allotment. Utility lines may be added as necessary to support the Building Envelopes. Where feasible, Building Envelopes should be located near to each other so as to minimize the area removed from wildlife habitat. Siting of Building Envelopes and road and utility access to them should avoid sensitive areas identified in the Baseline Report. The location and boundaries of the Building Envelopes and access roads and utility lines shall be subject to the approval of Grantee; Grantee’s approval shall not be unreasonably withheld. No additional structures may be placed or constructed on the Property outside the Building Envelopes except as herein provided with respect to other permitted uses.
Grantor shall notify Grantee in writing prior to beginning site preparation or construction on any building, road, fence, or other structure permitted under this Easement. The notice must include, at a minimum, sufficient information, including the nature, scope, design, location, timetable, and other material aspects of the proposed activity, in sufficient detail to allow Grantee to determine whether the proposed plans are consistent with the requirements of this Conservation Easement.
2.4 Existing Improvements. Grantor shall have the right to maintain, renovate, and repair existing buildings, fences, pens, wells, dams and reservoirs, utilities, roads, docks, and other improvements as depicted in Exhibit B and the Baseline Report, and in the event of their destruction, to reconstruct any such existing improvement with another of similar size, function, capacity, location and material. Grantor may drill additional water wells for on-site agricultural or personal residential use.
2.5 Mineral Extraction. The extraction, mining, or removal of soil, sand, gravel, rock, peat, sod, or other surface minerals by any surface mining method is prohibited, except that such extraction for the purposes of maintaining existing roads and facilities on the Property is allowed to the extent permitted, if at all, by Internal Revenue Code §170(h)(5)(B) and applicable Treasury Regulations and judicial decisions. At the time of execution of this Easement, surface mining is not allowed. Extraction of subsurface minerals may be accomplished only by extraction methods that will have a limited and localized impact and will not significantly impair or interfere with the Conservation Values. The extractor shall use best efforts and practices to prevent damage or impairment of natural values. Grantor shall notify Grantee as referenced in Paragraph 2.3 before beginning mineral exploration, production, storage, or transportation.
include recommended stocking densities and must be approved by Grantee. Upon sixty (60) days written notice by Grantee that the approved grazing plan interferes with the Conservation Values, Grantor must reduce the number of domestic animals and/or livestock on the Property to a level deemed satisfactory by Grantee. In the event the Grazing Plan is not updated yearly, then the then existing Grazing Plan shall continue in effect. In the event there is any conflict between the Grazing Plan and this Conservation Easement, this Conservation Easement shall control. Grantor may not establish or maintain any commercial feedlot or animal feeding operation, as that term is defined by Title 30, § 321.32 of the Texas Administrative Code, on the Property.
2.7 Excavation. Except as necessary to accommodate the activities expressly permitted under this Easement, there shall be no ditching, draining, filling, excavating, dredging, removal of topsoil, sand, gravel, rock, minerals or other materials, mining, drilling or removal of minerals, nor any building of roads or change in the topography of the Property.
2.8 Recreational Uses. Grantor shall have the right to engage in and permit others to engage in recreational uses of the Property that require no surface alteration or other development of the land. Hunting leases complying with the purposes and covenants of this Easement are permitted. There shall be no more than de minimis use of the Property for a commercial recreational activity.
2.9 Destruction of Vegetation, Disturbance of Natural Habitat. Grantor shall have the right to cut and remove diseased, invasive, and exotic plants as needed; to cut firebreaks; to remove trees as needed to restore natural habitats; and to accommodate uses and activities expressly permitted in this Easement. There shall be no other removal, harvesting, plowing, or destruction of native trees, shrubs, or plants, except for purposes of maintaining, improving, or restoring natural habitats such as wetlands and native grassland or to accommodate activities expressly permitted in this Easement. There shall be no further planting of invasive or potentially invasive non-native plant species anywhere on the Property, including within the Building Envelope; Grantee will provide a list of potentially invasive species on request.
and if not updated, the Plan then in force shall apply. Any vegetation management varying from the Conservation Area Plan shall require Grantee’s prior written approval.
No restrictions on clearing or otherwise managing vegetation apply within the Building Envelopes.
2.10 Hydrology. Except as permitted in Paragraph 2.3, there shall be no alteration, depletion or extraction of surface or subsurface water on the Property, nor shall activities be conducted that could alter the natural water level or flow in or over the Property. No sale, lease, or other conveyance of surface water, groundwater, or any other water rights separate from conveyance of the Property as a whole is permitted.
2.11 Signage. No signs or billboards or other advertising displays are allowed on the Property, except for those signs whose placement, number and design do not significantly diminish the scenic character of the Property.
2.12 Biocides. Except as needed around improvements, there shall be no use of pesticides or biocides on the Property, except as needed to control invasive plants and animals detrimental to the Conservation Values of the Property
2.13 Dumping. There shall be no permanent storage or dumping of garbage, rubbish, or other unsightly or offensive material, hazardous substance, or toxic waste, nor any placement of underground storage tanks in, on, or under the Property; there shall be no changing of the topography through the placing of soil or other substance or material such as land fill or dredging spoils, except as permitted elsewhere in this Easement. Waste generated by permitted uses on the Protected Property may be stored temporarily in appropriate containment for removal at reasonable intervals.
2.14 Pollution. There shall be no pollution of surface water, natural watercourses, lakes, ponds, marshes, subsurface water or any other water bodies, nor shall activities be conducted on the Property that would be detrimental to water purity.
2.16 Unanticipated Uses. Any unanticipated use or activity on the Property which could impair significant Conservation Values is prohibited unless prior written approval for the activity is given by Holder. Holder may permit unanticipated uses only if they would not impair significant Conservation Values.
3. ADDITIONAL RIGHTS RETAINED BY GRANTOR. Grantor retains the following
additional rights:
3.1 Existing Uses. Grantor shall have the right to undertake or continue any activity or use of the Property not prohibited by or inconsistent with this Easement. Prior to making any change in use of the Property, Grantor shall notify Grantee in writing to allow Grantee a reasonable opportunity to determine whether such change would violate the terms of this Easement.
3.2 Transfer. Grantor shall have the right to sell, give, mortgage, lease, or otherwise convey the Property; provided however, that any such conveyance shall be subject to the terms of this Easement.
4. GRANTEE’S RIGHTS. To accomplish the purpose of this Easement, the following
rights are granted to Grantee:
4.1 Right to Enforce. Grantee shall have the right to preserve and protect the Conservation Values of the Property and enforce the terms of this Easement.
4.2 Right of Entry. Grantee, its staff, contractors, and associated natural resource management professionals shall have the right to enter the Property one or more times a year, after reasonable notice to Grantor, to inspect the Property to determine if Grantor is complying with the covenants and purposes of this Easement. Grantee also agrees to provide advance written notice, via first class mail, personal delivery, or electronic mail, to Grantor prior to entering the Property, except in any case where Grantee has a good faith belief that immediate entry is necessary or desirable to prevent, terminate, or mitigate damage to, or the destruction of, of the Conservation Values, or to prevent, terminate or mitigate a violation of the terms of this Easement.
any of the prohibited activities listed in Section 2 are deemed desirable by both Grantor and Grantee, Grantee may, in its sole discretion, give permission for such activities, subject to the limitations herein. Such requests for permission, and permission for activities requiring Grantee’s consent shall be in writing and shall describe the proposed activity in sufficient detail to allow Grantee to judge the consistency of the proposed activity with the purpose of this Easement. Grantee may give its permission only if it determines, in its sole discretion, that such activities (1) do not violate the purpose of this Easement and (2) enhance or do not impair any significant conservation interests associated with the Property. Notwithstanding the foregoing, Grantee and Grantor have no right or power to agree to any activities that would result in the termination of this Easement.
5. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED. Other
than as specified herein, this Easement is not intended to impose any legal or other responsibility on Grantor, or in any way to affect any existing obligation of Grantor as owners of the Property. Among other things, this shall apply to:
5.1 Taxes. Grantor shall be solely responsible for payment of all taxes and assessments levied against the Property.
5.2 Management, Upkeep, and Maintenance. Grantor shall be solely responsible for the upkeep and maintenance of the Property, to the extent it may be required by law. Grantee shall have no obligation for the upkeep or maintenance of the Property.
6. ACCESS. No right of access by the general public to any portion of the Property is
conveyed by this Easement.
7. ENFORCEMENT. Grantee shall have the right to prevent and correct violations of the
notice of the violation and sixty (60) days to correct it (or to begin good faith efforts to correct in the event the violation is something which cannot be reasonably corrected in sixty (60) days, before filing any legal action. If a court with jurisdiction determines that a violation may exist or has occurred, Grantee may obtain an injunction to stop it, temporarily or permanently, without the need to show imminent harm, irreparable injury, or lack of adequate remedy at law. A court may also issue an injunction requiring Grantor to restore the Property to its condition prior to the violation. The failure of Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time. If a Court (or other decision maker chosen by mutual consent of the parties) determines that this Easement has been breached, Grantor will reimburse Grantee for any reasonable costs of enforcement, including court costs and reasonable attorney’s fees.
8. TRANSFER OF EASEMENT. The parties recognize and agree that the benefits of this
Easement are in gross and assignable. Grantee shall have the right to transfer or assign this Easement to any private nonprofit organization that, at the time of transfer, is a "qualified organization" under Section 170(h) of the U.S. Internal Revenue Code, and the organization expressly agrees to assume the responsibility imposed on Grantee by this Easement. If Grantee ever ceases to exist or no longer qualifies under Sec. 170(h) or applicable state law, a court with jurisdiction shall transfer this Easement to another qualified organization having similar purposes that agrees to assume the responsibility.
9. TRANSFER OF PROPERTY. Any time the Property, or any interest therein, is
transferred by Grantor to any third party, Grantor shall notify Grantee in writing at least thirty (30) days prior to the transfer of the Property, and the document of conveyance shall expressly refer to this Easement. Grantor shall pay Grantee a transfer fee of one hundred dollars ($100.00) upon any such transfer. The failure of Grantor to perform any act required by this paragraph shall not impair the validity of this easement or limit its enforceability in any way.
10. AMENDMENT OF EASEMENT. This Easement may be amended only with the
purposes of this Easement and, must not affect its perpetual duration, and either must enhance or have no effect on, the Conservation Values which are protected herein. Any amendment must not result in inurement or impermissible private benefit to Grantor or any party. Amendments shall comply with Sec. 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section. Any such amendment shall also be consistent and with Texas Natural Resources Code § 183.001 et seq., or any regulations promulgated pursuant to those laws. Grantee shall not be required to agree to any amendment. Grantor and Grantee have no right or power to agree to any amendment that would adversely affect the enforceability of this Easement.
11. TERMINATION OF EASEMENT. If it is determined that conditions on or
surrounding the Property have changed so much that it is impossible to fulfill the conservation purposes set forth above, this Easement may be terminated only by a court with jurisdiction at the joint request of both Grantor and Grantee.
If condemnation of a part of the Property or of the entire Property by public authority renders it impossible to fulfill any of these conservation purposes, the Easement may be terminated through condemnation proceedings.
At the time of the conveyance of this Easement to Grantee, this Easement gives rise to a real property right, immediately vested in Grantee. If the Easement is terminated and the Property is sold or taken for public use, then, as required by Sec. 1.170A-14(g)(6) of the IRS regulations, Grantee shall be entitled to a percentage of the gross sale proceeds or condemnation award (minus any amount attributable to new improvements made after the date of this conveyance, which amount shall be reserved to Grantor) equal to the ratio of the appraised value of this Easement to the unrestricted fair market value of the Property, as these values are determined on the effective date of this Easement. Grantee shall use the proceeds consistently with the conservation purposes of this Easement.
12. INTERPRETATION. This Easement shall be interpreted under the laws of Texas,
13. INDEMNIFICATION. Grantor shall hold harmless, defend, and indemnify Grantee
from any and all loss, cost, claim, liability, or expense (including reasonable attorneys' fees) arising from or with respect to the Property, unless due to the gross negligence or willful misconduct of Grantee.
14. TITLE. Grantor covenants and represents that Grantor is the sole owner and is seized of
the Property in fee simple and has good right to grant and convey this Easement; that the Property is free and clear of any and all encumbrances, including but not limited to, any mortgages not subordinated to this Easement, and that Grantee shall have the use of and enjoy all of the benefits derived from and arising out of this Easement.
15. NOTICES. Any notices required by this Easement shall be in writing and shall be
personally delivered or sent by first class mail, or by such other method agreed to in writing by both parties, to Grantor and Grantee, respectively, at the following addresses, unless a party has been notified by the other of a change of address.
To Grantor: To Grantee:
__________________ Texas Land Conservancy
______________ P. O. Box 162481
__________________ Austin, Texas 78716-2481
16. ENVIRONMENTAL CONDITION. Grantor warrants that he has no actual knowledge
of a release or threatened release of hazardous substances or wastes on the Property.
17. SEVERABILITY. If any provision of this Easement is found to be invalid, the
remaining provisions shall not be altered thereby.
18. PARTIES. Every provision of this Easement that applies to Grantor or Grantee shall
19. PERPETUAL DURATION. This Easement runs with the land and binds all successive
owners of the Property.
20. RE-RECORDING. In order to ensure the perpetual enforceability of the Easement,
Grantee is authorized to re-record this instrument or any other appropriate notice or instrument.
21. MERGER. The parties agree that the terms of this Easement shall survive any merger of
this Easement and the fee interest in the Property.
22. SUBSEQUENT LIENS ON PROPERTY. No provisions of this Easement should be
construed as impairing the ability of Grantor to use this Property as collateral for subsequent borrowing, provided that any mortgage or lien arising from such a borrowing would be subordinate to this Easement.
23. EXHIBITS. The following Exhibit is incorporated within this Easement:
Exhibit A – Description of Property Exhibit B – Property Map
24. ACCEPTANCE & EFFECTIVE DATE. As attested by the signature of its authorized representative affixed hereto, Grantee hereby accepts without reservation the rights and responsibilities conveyed by this Easement. This Easement is to be effective on the date recorded in the _______ County Registry of Deeds (“Effective Date”).
IN WITNESS WHEREOF, Grantor and Grantee, intending to legally bind themselves, have set their hands hereto.
GRANTOR:
___________________________________
STATE OF ___________________§ COUNTY OF _________________§
BEFORE ME, the undersigned authority, on this day personally appeared ________________, known to me by presentation of Texas driver’s license to be the person whose name is subscribed to the foregoing instrument, who acknowledged that he executed the same for the purposes and consideration therein stated, individually and in the capacity above stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ____ day of ________, 2010_.
_________________________(SEAL) NOTARY PUBLIC
GRANTEE: By: ________________________________ Its _______________________________ STATE OF ___________________§ COUNTY OF _________________§
BEFORE ME, the undersigned authority, on this day personally appeared ________________, known to me by presentation of Texas driver’s license to be the person whose name is subscribed to the foregoing instrument, the ____________________ of Texas Land Conservancy, a Texas not-for-profit corporation, on behalf of such corporation.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the ____ day of ________, 2010_.
_________________________(SEAL) NOTARY PUBLIC
