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DRAFT
DEED OF ENVIRONMENTAL ASSETS EASEMENT
Note: Easement Language May Vary Slightly
Depending On State and Length Of Easement
THIS
ENVIRONMENTAL ASSETS EASEMENT (the "Easement")
is made by and between ________________________, a landowner,
with a mailing address of _________________________________________________
__________________________________________________________
(together with its successors in title and assigns, hereinafter
collectively referred to as "Landowner"), in favor
of THE CARBON FUND, a non-profit corporation organized under
the laws of the State of Mississippi with a mailing address
of Post Office Box 100, Stoneville, Mississippi 38776 ("TCF");
WHEREAS,
Landowner is the owner in fee simple of certain real property
("Land") known as ________________________ located
in __________________________County, Mississippi, which
is more particularly described in Exhibit "A"
attached hereto and made a part hereof; and
WHEREAS,
The purpose of this easement is to enable the Landowner
to take land currently enrolled in such governmental cost
share assistance programs as the Conservation Reserve Program
and/or the Wetland Reserve Program and extend that conservation
effort through this environmental assets easement by extending
the period that the land will remain out of row crop agriculture.
The Landowner certifies that no enrollment has been made
for any additional cost share assistance on the land described
herein; and that were it not for the opportunity to access
the combined economic benefits discussed above, the land
described herein would revert back to row crop agriculture.
This
easement deed becomes effective on the signature date of
this document but its provisions remain subservient to any
governmental cost share assistance program contract (as
described above) with the subject land as long as that contract
exists. Once the governmental cost share assistance program
is extinguished, the terms of this easement deed continue
to apply for the life of the easement. Since the intent
of these programs is to remove environmentally sensitive
agricultural land from production and return it to natural
hardwood forests for the benefit of wildlife, soil and water
conservation, water quality improvement, etc., this easement
perpetuates what the governmental cost share assistance
program contract initiated; and,
WHEREAS,
TCF is a non-profit conservation organization whose purposes
are: (A) To educate the public about the effective and efficient
management of carbon, a component of greenhouse gas that
has been linked to global warming. (B) To match the interests
of agencies and organizations interested in ecosystem restoration
with those of emissions-conscious corporations interested
in carbon sequestration. (C) To utilize funds from corporations
to improve fish, wildlife and plant resources. (D) To establish
partnerships with organizations and agencies that hold title
to land and conservation interests in land to restore native
fish, wildlife and plant habitat. (E) To work with the major
industries and environmental and energy agencies that have
an interest in carbon management to pinpoint problems and
target strategies so that these industries and agencies
have effective and cost-efficient programs to manage carbon.
(F) To educate the public about how carbon sequestration
can contribute to clean air and healthy ecosystems and educate
landowners about the carbon management options available
to them.
WHEREAS,
the Mississippi Conservation Easement Act of 1986, Chapter
89-19-1 et seq. of the Mississippi Code of 1972, as amended,
and Section 170(h) of the Code permit the creation of easements
for the purposes of, among other things, retaining or protecting
natural, scenic, historical or open space values of real
property, assuring its availability for agricultural, forest,
recreational, educational or open space use, protecting
natural features and resources, maintaining or enhancing
air and water quality or preserving the natural, historical,
architectural, archeological or cultural aspects of real
property;
WHEREAS,
Landowner and TCF recognize that the Land has a special
character and the opportunity for enhancement of the Land,
and have the common purpose of the conservation and protection
for a period of 70-years of the Land, among other purposes,
as a tool to sequester carbon dioxide, reduce soil erosion
and improve water quality and improve habitat for declining,
threatened and endangered species, by placing voluntary
restrictions upon the use of the Land and by providing for
the transfer from the Landowner to TCF of affirmative rights
for the reforestation and protection of the Land;
WHEREAS,
carbon benefits are defined as all offsets, rights, allowances,
and credits with respect to carbon, carbon dioxide, carbon
sequestration, or reducing, avoiding, or sequestering greenhouse
gas emissions whether initiated, enacted, promulgated, regulated,
recognized, or valued by international, United States, state,
local governments, or private agencies, bodies, or instrumentalities
that may now or hereafter, for 70-years, arise from or be
associated with the Land and reforestation thereof.
WHEREAS,
potential additional environmental assets are Total Maximum
Daily Load (TMDL) Allocations and Species Credits. TMDL
Allocations refer to the quantifiable reduction in suspended
solids in runoff from the land as a result of conversion
from row crop agriculture to forests. Species Credits refer
to the creation of habitat that may support a breeding population
of listed Threatened and Endangered Species.
WHEREAS,
the specific conservation and ecological values of the Land
on the date of this Easement are documented in a Baseline
Documentation Report ("Report") (Exhibit "B"),
dated ________________________, a copy of which is on file
with both the Landowner and the TCF. Both parties agree
the Report provides an accurate representation of the Land
and the condition of the same as of the date of this Easement
and is intended to serve as an objective informational baseline
for monitoring compliance with the terms of this Easement.
The Report shall include the following items:
A) The
appropriate survey maps from the United States Geological
Survey showing the boundary lines of the Land and other
contiguous or nearby protected areas;
B) A
map of the area drawn to scale showing all existing man-made
improvements or incursions (such as roads, buildings, fences,
or gravel pits), land use history (including present uses
and recent past disturbances), and distinct natural features
(such as large trees and aquatic areas);
C) An
aerial photograph of the Protected Property at an appropriate
scale taken as close as possible to the date the donation
is made; and
D) On-site
photographs taken at appropriate locations on the Land;
and other documentation possessed (at present or in the
future) by the Landowner which the Landowner shall make
available to TCF, its successors and assigns, which documentation
establishes the conditions of the Land at the date of this
Easement.
WHEREAS,
as owner of the Land, Landowner has access thereto, the
right to convey the Easement to TCF, and the right to conserve
and protect the conservation and ecological values of the
Land;
WHEREAS,
this conveyance is subject to all oil, gas and mineral leases,
easements, mineral reservations and conveyances, rights-of-way
and other matters of record, recorded in the office of the
Chancery Clerk of ________________________ County, Mississippi
and which affect the Land; and
WHEREAS,
the Landowner conveys to TCF or its assigns all environmental
assets as defined below for a period of 70-years. TCF agrees
to market the "Carbon Credits" portion of these
ecological assets immediately at a minimum of $400.00 per
acre.
WHEREAS,
the Landowner will work with TCF to develop a Forest Management
Plan (FMP) whose principles are described in EXHIBIT C,
which will be appended to and made part of this easement
deed.
NOW,
THEREFORE, the Landowner, in consideration of the foregoing
recitations and of the mutual covenants, terms, conditions
and restrictions hereinunder set forth and as an absolute
and unconditional sale, does hereby freely sell and convey
unto TCF, and its successors and assigns, the Easement over
the Land subject to the covenants, conditions and restrictions
hereinafter set forth which will run with the land and burden
the Protected Property for 70-years.
SECTION
I
PURPOSE
1.1
Purpose. It is the purpose of this Easement to (i) assure
that the Land will be retained for a period of 70-years
predominantly in its primarily undeveloped, reforested condition,
as evidenced by the Report, and (ii) prevent any use of
the Land which will impair significantly or interfere with
the Purpose of this easement. To those ends, the Grantor
intends that this Land shall permit only such future uses
of the Land as are consistent with and in furtherance of
the Purpose, including in particular, uses that promote
habitat maintenance, management, diversity and enhancement
for both tree and wildlife species. The Landowners recognize
that numerous species of trees and wildlife presently exist
on the Protected Property. TCF's intention is not to preserve
or maximize a particular tree or wildlife species. Rather,
by encouraging a diverse forest and wildlife habitat, TCF
seeks to restore and protect the land, water, forest, and
wildlife resources on the Land as a whole.
SECTION
II
AFFIRMATIVE
RIGHTS OF TCF
To accomplish
the Purpose of the Easement the following rights are hereby
conveyed to TCF:
2.1
Reforestation. The right to reforest the Land;
2.2
Protection. The right to protect the forest, wildlife and
water quality values of the Land;
2.3
Prevention. The right to prevent any activity on or use
of the Land that is inconsistent with the Purpose of this
Easement. and to seek the restoration of the Land to the
conditions existing prior to any violation hereof or damage
to the Land that may be caused by an inconsistent activity
or use, as set forth in Section 5.14 herein;
2.3
Right of Management. The right to enter the Land, whether
or not the property is adjacent or appurtenant to the easement
area, from time to time to undertake, at its own expense
or on a cost-share basis with any other entity, any activities
to restore, protect, manage, maintain, enhance, and monitor
the forest, wetland and other natural values of the easement
area. TCF, at its own cost or in conjunction with the Landowner,
may apply to or impound additional waters on the easement
area in order to maintain or improve natural values;
2.4
Right of Entry and Access. The right to enter the Land,
whether or not the property is adjacent or appurtenant to
the easement area, from time to time for the purposes described
above and to determine compliance herewith. TCF, its agents,
employees, successors, and/or assigns, may utilize vehicles
and other reasonable modes of transportation for access
purposes to complete reforestation of the site. This may
involve cooler storage, site preparation, plantings, etc.
The right of entry and access herein described does not
extend to the public or any person or entity other than
TCF, its agents, employees, successors, and/or assigns and
shall not unreasonably interfere with Landowner's use and
quiet enjoyment of the Land;
2.5
Easement Management. TCF may delegate all or part of the
management, monitoring, or enforcement responsibilities
under this easement to any entity authorized by law that
TCF determines to have the appropriate authority, expertise,
and resources necessary to carry out such delegated responsibilities.
State or federal agencies may utilize their general statutory
authorities in the administration of any delegated management,
monitoring, or enforcement responsibilities for this easement.
The authority to modify, assign, or terminate this easement
is reserved to TCF in accordance with applicable law.
2.6
Publicity. The right to erect Easement boundary signs around
the perimeter of the Land and to publicize acceptance of
the Easement through such media as TCF shall select; and
SECTION
III
LANDOWNER'S
RESERVED RIGHTS
Notwithstanding
any provision to the contrary contained in this Easement,
the Landowner reserves for itself, its successors in title
and its assigns the "Reserved Rights" set forth
in this Section III. The exercise of all Reserved Rights
will be in full accordance with all applicable local, state,
and federal laws and regulations, as well as in accordance
with the Purpose of this Easement. Landowner hereby agrees
to give notice to TCF before exercising any of the Reserved
Rights set forth in this Section III.
3.1
Consistent Uses. The Landowner has the right to engage in
any and all acts or uses that are not inconsistent with
the Purpose of this Easement. The Easement shall permit
the continuation of pre-existing uses identified in the
Report that do not conflict with (and in fact may be in
furtherance of) the Purpose of this Easement and shall permit
certain future uses of the Land, as set forth in this Section
III. Notwithstanding the provisions of Section IV, the following
rights, uses, and activities by the Landowner, its successors
in title and assigns, shall not be prohibited by this Easement
and shall be deemed consistent with the Purpose of this
Easement.
3.2
Fences and Gates. The right to maintain and replace the
existing fences and gates on the Land with fences and gates
of similar size and composition. The right to construct,
maintain and replace new fences and gates on the Protected
Property so long as the intent and Purpose of this Easement
is not compromised.
3.3
Roads. The right to maintain, replace and relocate existing
roads and trails with roads and trails of like size and
composition, using permeable materials such as sand, gravel,
crushed stone, etc., for such purposes as may be permitted
by this Easement. The right to construct new roads and trails
on the Land from time to time for such purposes as may be
permitted by this Easement. The right to use roads and trails
for all activities permitted under this Easement. The right
to periodically obtain on-site fill material for the repair
and maintenance of the roads on the Land. Maintenance of
roads shall be limited to normal practices for non-paved
roads, such as the removal of dead vegetation, necessary
pruning or removal of hazardous trees and plants, application
of permeable materials necessary to correct erosion, placement
of culverts, water control structures, and bridges, and
maintenance of roadside ditches.
3.4
Forest Management. The right to harvest, plant, cultivate,
construct firebreaks as necessary, and otherwise manage
forest resources on a sustained yield basis in accordance
with prudent forestry practices. Forest management practices
shall be in accordance with scientifically based wildlife
habitat enhancement practices recommended by TCF. The right
to cut and/or harvest dead or diseased trees and trees that
present hazards to persons or property and to clear brush
and prune and trim trees affecting any structures on the
Land. In addition, sixty (60) days prior to commencement
of any commercial timber harvesting activities, a timber
management plan for the Land shall be prepared according
to the Forest Management Principles (Exhibit "C")
and shall be filed by the then current owner of the Land
with TCF. At the expiration of the initial and each successive
timber harvest plan, a new plan shall be prepared to replace
the prior plan. Successive forest management plans shall
be compatible with the Purpose set forth in Section I herein
and to the extent reasonably practical shall seek to regenerate:
(i)
The forest diversity existing on the Protected Property
as of the date of this Easement; or
(ii)
If forest harvesting activities have recently been conducted
on the Protected Property, the forest diversity existing
on the Protected Property immediately prior to the forest
harvesting activities.
3.5
Vegetation Maintenance. The right to cut, clear and remove
grass or other vegetation for habitat protection, fire protection
and unpaved trail and road maintenance to the extent necessary
to protect the condition of the Land at the time of the
execution of this Easement. The right to perform routine
upkeep, maintenance, and landscaping, including the planting
of trees, shrubs, flowers, and other native plant species,
consistent with the intent and Purpose of this Easement.
The right to undertake activities for fire protection and
road maintenance. All such activities shall be undertaken
in order to protect the Purposes of this Easement.
3.6
Exotics. To allow only those exotic plant or animal species
traditionally and prevalently used or existing as of or
prior to the date hereof as evidenced in the Report.
3.7
Minerals. Landowner reserves the right to explore for and
develop subsurface minerals (with the exception of gravel,
sand and salt), including oil, gas and geothermal energies
and pressures from the Land. Such subsurface exploration
or development may be carried on only in such manner and
with the use of such methods so that any impact on the surface
of the Land will not be greater than a limited localized
impact, and no permanent destruction of any of the conservation
values of the Land may occur.
3.8
Outdoor Recreational Activities. The right of Landowner's
shareholders, their family members and invited guests to
engage in any outdoor recreational activities or to conduct
any outdoor recreational activities, including but not limited
to hunting, fishing, camping and trapping, not inconsistent
with the Purposes of this Easement and in compliance with
all applicable local, state and federal statutes and regulations.
3.9
Educational Activity. The right to conduct workshops, seminars,
tours, educational research and related programs and activities
on the Land for the purpose of promoting the scientific,
ecological, environmental, wildlife, scenic, aesthetic or
similar conservation values of the Land in accordance with
the Purpose of the Easement. Such enterprise shall be conducted
in such a manner that is not disruptive of the natural environment
of the Land or contrary to the intent and Purpose of this
Easement.
3.10
Leases. The right to lease interests in the Land for any
use permitted to the Landowner under this Easement, provided
that such lease or other interest is consistent with and
subject to the terms of this Easement.
3.11
Predators. The right to control problem animals, which include
without limitation, beaver and nutria causing damage to
the Land, by the appropriate use of legal control techniques.
Wherever possible, all measures used for such control will
be limited in their application to specific animals that
have caused damage. If it is not possible to identify a
specific problem animal or when historic data indicates
that a sufficient threat exists, Landowner may use appropriate
preventative control techniques.
3.12
Water Resources. The right to develop and maintain those
water resources and wetlands on the Land necessary to wildlife,
private recreation, and other activities permitted by this
Easement, so long as such development and maintenance does
not substantially impair any of the water resources or wetlands.
Permitted activities shall include, but are not limited
to, the right to drain, develop, restore, and enhance water
resources for lakes, fisheries and wildlife improvement;
and the right to undertake bank stabilization measures and
stream and watercourse restoration. In the event natural
watercourses change over time, the Landowner and TCF agree
to jointly examine and address the effect of these changes
on the Land, and to agree on the relocation of water control
structures, wells, pumping stations, roads, bridges, and
culverts required by such watercourse changes.
3.13
Wetland Impoundments; Dams and Levees. The right to construct,
maintain and repair dams and levees to the extent necessary
to protect, restore, or enhance the Purposes of this Easement.
The construction of new dams and levees shall be in accordance
with the requirements of local, state and federal authorities
having jurisdiction over such activities and with the prior
written approval of TCF. The right to repair, replace and/or
maintain existing and/or historic wetland impoundments and
water control structures and to construct new impoundments,
water control structures and stations for pumping water
throughout the Land, said impoundments and water pumping
stations being recognized by both the landowner and TCF
as beneficial to waterfowl, and other wetland dependent
plants and animals. The impoundments shall be managed primarily
for waterfowl. To the greatest extent feasible and practical,
management of the impoundments will be carried out in a
manner that is conducive to providing wintering and nesting
habitat, including the provision of food sources, for waterfowl,
shorebirds, wading birds and eagles. Within the existing
impoundments, internal ditching and diking will be allowed.
3.14
Utilities. At Landowner's election, to bury all utility
systems or extensions of the existing utility systems.
3.15
Signs. The right to construct, place and maintain directional
signs, signs indicating and identifying occupancy and signs
advertising the sale of the Land. Signs may not exceed 14
inches by 18 inches in size.
3.16
Other. The right to perform any other activity or activities
not inconsistent with the Purpose and intent of this Easement.
SECTION
IV
RESTRICTIONS
AND COVENANTS
Subject
to the reserved rights set forth in Section III which are
not prohibited under this Easement, the Landowner states
and agrees that the following uses and practices, although
not an exhaustive recital of the inconsistent uses and practices,
are hereby deemed to be inconsistent with the Purpose of
this Easement, and shall be prohibited:
4.1
Forest Resources. Subject to Section 3.9, there shall be
no clear cutting of trees on or from the Protected Property
at any time, and there shall be no cutting or harvesting
of trees on or from the Protected Property for the first
twenty (20) years following the establishment of the Easement.
Cutting or harvesting of trees on or from the Land following
the first twenty (20) years shall be conducted as permitted
in Section 3.9. There shall be no altering of woodland wildlife
habitat by burning. Beaver shall not be allowed to kill
standing trees by allowing permanent beaver ponds.
4.2
Uses. There shall be no industrial activity undertaken or
allowed on the Land.
4.3
Structures; Vehicles. There shall be no construction or
placing of transmission or receiving towers, energy facilities,
or water towers on the Land. There will be no mobile homes,
house trailers, temporary shelter, or vehicles of any sort
providing living quarters, including but not limited to,
permanent campsites on the Land. This restriction is not
intended to apply to the operation and use of all terrain
vehicles or to the temporary parking of recreational vehicles
and reforestation equipment and timber harvesting equipment
on the Land.
4.4
Minerals. Subject to the rights of predecessors in title
to the Landowner, there shall be no exploration or extraction
of minerals by any surface mining method within the meaning
of Section 170(h)(5)(B) of the Code and the regulations
promulgated thereunder, nor shall there be any exploration
or extraction by any surface mining method if such activity
would, in the sole judgment of TCF, result in the destruction
of a significant forest values of the Land.
4.5
Exotics. There shall be no introduction of exotic plant
or animal species.
4.6
Other Farming and Animal Uses. There shall be no agriculture,
including haying, mowing, or seed harvesting, horticulture,
nursery, aquaculture, animal husbandry, cattle or livestock
operations on the Land.
4.7
Wetlands. There shall be no dredging, change, disturbance,
alteration or impairment of any natural watercourses or
wetlands within and upon the Land, unless consistent with
the Purpose of this Easement and subject to all of the requirements
of local, state and federal authorities having jurisdiction
over such activities and the prior written approval of TCF.
4.10
Refuse and USTs. No portion of the Land shall be used for
a sanitary landfill, for the installation of any underground
storage tanks, for the installation and use of an incinerator
for the destruction of waste material or for the dumping,
storing, disposal or treatment of refuse, trash, garbage,
rubbish, junk, ashes, or hazardous substances or waste.
4.11
Pollutants. There shall be no release, generation, treatment,
use, disposal, abandonment, and movement in, on, from or
across the Land of a 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, soil, or in
any way harmful or threatening to human health or the environment.
4.12
Signs. Except as set forth in Section II (Section 2.4) and
Section III (Section 3.22), there shall be no construction
or placing of signs, including but not limited to, billboards,
or any advertising materials of any sort on the Land.
4.13
Roads. There shall be no building of new roads, nor widening
of existing roads except as permitted in Section 3.5.
4.14
Use Inconsistent with Purpose. The parties recognize that
this Easement cannot address every circumstance that may
arise in the future. The parties agree upon the Purpose
of this Easement. The Land will be retained for a period
of 70-years predominantly in its primarily undeveloped natural,
scenic, reforested condition as evidenced by the Report,
for conservation purposes and this Easement shall prevent
any use of the Land which will impair significantly or interfere
with the conservation or ecological values of the Land,
its wildlife habitat, natural resources or associated ecosystems.
Any use or activity not reserved in Section III which is
inconsistent with the Purpose of this Easement or which
materially threatens the Purpose of this Easement is prohibited.
In the event that there is a dispute between the Landowner
and TCF as to whether or not an activity or use is prohibited
under this Section 4.14, the parties will arbitrate the
matter in accordance with the provisions of Section 5.17
of this Easement.
SECTION
V
GENERAL
COVENANTS
5.1
Baseline Documentation Report. The parties intend that the
Baseline Documentation Report shall be used by TCF to monitor
the Landowner's future uses of the Land and practices thereon.
The parties further agree that, in the event a controversy
arises with respect to the condition of the Land or a particular
resource thereof, the parties shall not be foreclosed from
utilizing any other relevant document, survey, or report
to assist them in the resolution of the controversy. The
Landowner and TCF recognize that changes in agricultural
technologies, including accepted farm and forest management
practices, may result in an evolution of agricultural and
silvicultural activities on the Land. Such evolution shall
be permitted so long as it is consistent with the Purpose
of this Easement, and does not in any way materially impair
or interfere with the environmental assets of the Land.
5.2
Cost of Ownership. The Landowner, its successors, and assigns,
shall retain all incidents of ownership and related responsibilities
and shall bear all costs and liabilities of any kind related
to the ownership, operation, upkeep, and maintenance of
the Land, including the maintenance of adequate liability
insurance coverage and the payment of any and all real estate
taxes or assessments levied on the Land by authorized local,
county, state, or federal officials, but excepting any taxes
assessed directly to or upon TCF. Landowner remains solely
responsible for obtaining any applicable governmental permits
and approvals for any activity or use permitted by this
Easement. Nothing in this Easement shall be construed as
conveying or giving rise, to any right or ability in TCF
to exercise physical or managerial control over the day-to-day
operations of the Land, or any of the Landowner's activities
on the Land, or otherwise to become an operator with respect
to the Land within the meaning of The Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as amended
("CERCLA"), and any corresponding Mississippi
statute.
5.3
Indemnification. The Landowner hereby releases and agrees
to hold harmless, indemnify, and defend TCF, its members,
trustees, directors, officers, employees, agents, and contractors
and their 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
attorney's fees, arising from or in any way connected with:
(1) injury to or the death of any person, or physical damage
to the Land resulting from any act, omission, condition,
or other matter related to or occurring on or about the
Land, 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 limitations, CERCLA and any corresponding
Mississippi statute by any person other than any of the
Indemnified Parties, in any way affecting, involving, or
relating to the Land; and (3) the presence or release in,
on, from, or about the Land, at any time, or 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.
5.4
Public Access. No right of access to the general public
to any portion of the Land is conveyed by this Easement.
5.5
Subsequent Conveyances. The Landowner shall include a reference
to all terms and conditions of this Easement in any subsequent
deed, or legal instrument by which the Landowner divests
itself of either the fee simple title in all or part of
the Land, or its possessory interest in any portion of the
Land. The Landowner will notify TCF in writing of all conveyances
of the Land and the respective parties thereto, and shall
provide TCF with a copy of any such conveyance.
5.6
Subsequent Liens. No provision of this Easement should be
construed as impairing the ability of the Landowner to use
the Land as collateral for a subsequent monetary loan or
other form of borrowing.
5.7
Notices/Approvals. Any notices or approval requests required
in this Easement shall be sent by registered or certified
mail, postage prepaid, or by facsimile to the following
addresses below or to such address as may be hereafter specified
by notice in writing.
TCF:
The
Carbon Fund, Inc.
Post
Office Box 100
Stoneville,
MS 38776
Attn.:
James L. Cummins
Facsimile:
(662) 686-4780
LANDOWNER:
___________________________
___________________________
___________________________
___________________________
___________________________
5.8
Severability. In the event any provision of this Easement
is determined by the appropriate court to be void and unenforceable,
all remaining terms will remain valid and binding.
5.9
Time Period. The burdens of this Easement will run with
the Land and will be enforceable against the Landowner and
all future owners for a period of 70-years during the period
of such ownership.
5.10
Assignment by TCF. The benefits of this Easement shall be
in gross and shall be assignable by TCF, only upon the following
conditions: (i) TCF must require that the Purpose of this
Easement continues to be carried out, and (ii) the assignee,
at the time of the assignment, must qualify under Section
170(h) of the Code, and applicable regulations thereunder,
and applicable Mississippi law and must be eligible to receive
this Easement directly.
5.11
Judicial Extinguishment. If a subsequent, unexpected change
in the conditions of the Land or the surrounding property,
make impossible or impractical the continued use of the
Land for the purposes of the Easement, the Easement shall
be extinguished by a judicial proceeding and all the TCF's
proceeds, if any, received from a subsequent sale or exchange
of the Land shall be used for the purposes of this Easement.
5.12
Compensation. This Section is applicable only to the determination
of compensation payable to TCF in the event of a termination
or judicial extinguishment of this Easement pursuant to
Section 5.11. The Landowner must compensate the easement
holder, at current market value, for loss of carbon benefits
resulting from any extinguishment of this Easement.
5.13
Eminent Domain/Condemnation. In the event all or any part
of the Land is taken in the exercise of eminent domain by
public, corporate or other appropriate governing authority
so as to abrogate the restrictions imposed by this Easement,
the Landowner shall take appropriate actions at the time
of such taking to recover the full, current market value
of the taking and all incidental or direct damages resulting
from the taking. The net proceeds (including, for purposes
of this Section 5.13, proceeds from any lawful sale of the
Protected Property unencumbered by the restrictions hereunder)
will be distributed between the Landowner and TCF in shares
in proportion to the fair market value of their interests
in the Land on the date of the execution of this Easement.
TCF shall use its share of the net proceeds for the continuation
of the purposes of this Easement.
5.14
Notice of Breach. In the event there is a breach of the
terms of this Easement by the Landowner or by a third party
acting at the direction of, with the permission of, or under
control of the Landowner, TCF shall have the right to notify
the Landowner in writing of such a breach, and the right
to enforce by proceedings at law or in equity the covenants
hereinafter set forth, including, but not limited to, the
right to require the restoration of the Land to its condition
on the date of this Easement as evidenced by the Report.
Upon such notice, the Landowner shall have thirty (30) days
to undertake actions, including restoration of the Land,
that are reasonably calculated to promptly correct the conditions
constituting such breach. If the Landowner fails to take
such corrective action, TCF may, at its discretion, undertake
such actions, including appropriate legal proceedings, as
are reasonably necessary to effect such corrections by the
Landowner. The cost of such corrections, including TCF's
expenses, court costs, and legal fees will be paid by the
Landowner, provided it is determined that the Landowner
or a third party acting at the direction of, with the permission
of or under the control of the Landowner, is responsible
for the breach. Nothing herein shall be construed to entitle
TCF to institute any proceedings against the Landowner for
any changes to the Land due to causes beyond the Landowner's
control, such as changes occurring due to natural causes
or unauthorized wrongful acts of third parties.
5.15
Waiver of Rights. TCF, its successors or assigns, do not
waive or forfeit the right to take such action as may be
necessary to insure compliance with this Easement by any
prior failure to act. The rights hereby granted will be
in addition to, and not in limitation of, any other rights
and remedies available to TCF for enforcement of this Easement.
5.16
Amendments. This Easement shall not be amended, modified,
or terminated except in writing in a document signed by
the Landowner and TCF. No amendment shall be allowed that
would adversely affect the purpose of this Easement or the
status of TCF under any applicable laws, including Section
170(h) of the Code or the laws of the State of Mississippi.
Any such amendment shall be consistent with the Purpose
of this Easement, shall not affect its duration, shall not
permit additional development other than development permitted
by this Easement on its effective date, and shall not permit
any impairment of the significant environmental assets of
the Land. Any such amendment shall be recorded in the land
records of the office of the Chancery Clerk of the counties
where the property is located. Nothing in this Section 5.16
shall require the Landowner or TCF to agree to any amendment
hereto.
5.17
Arbitration. In the event of a disagreement between the
Landowner and TCF as to whether or not a use or activity
violates Section 4.14 (hereinafter "Arbitration Issue"),
the Arbitration Issue will be resolved by a committee made
up of three (3) individuals who have reasonable experience
with conservation easements and land use of similar properties.
One individual will be selected by the Landowner, one individual
will be selected by TCF and the other individual will be
selected by the two individuals selected by the Landowner
and TCF. The three (3) individuals (hereinafter "Committee")
will determine by majority vote the Arbitration Issue. The
Committee shall follow the procedural rules established
by the American Arbitration Association. The decision of
the Committee will be binding on the Landowner and TCF.
5.18
Warranty of Title. Landowner hereby warrants and represents
that the Landowner is seized of the Land in fee simple and
has the right to sell and convey this Easement, subject
to all oil, gas and mineral leases, easements, mineral reservations
and conveyances, rights of way and all other matters of
record recorded in the office of the Chancery Clerk _____________________________
County, Mississippi and which affect the Land, and that
TCF and its successors and assigns shall have the use of
and enjoy all of the benefits derived from and arising out
of this Easement.
5.19
Controlling Law. The interpretation and performance of this
Easement shall be governed by the laws of Mississippi.
5.20
Filing. The Landowner shall file this instrument and any
amendments hereto in the official land records of __________________________,
Mississippi as soon as is practicable after all signatures
have been obtained. The Landowner may re-file this Easement
and any amendments to the Easement at any time as may be
required to preserve its rights in this Easement. Additionally,
the Landowner shall file a certified copy of this Easement,
together with a notice as to the date and place of recordation,
with the Attorney General of the State of Mississippi and
the Mississippi Department of Wildlife, Fisheries and Parks.
5.21
Counterparts. This Easement may be executed in multiple
counterparts.
5.22
Entire Agreement. This instrument sets forth the entire
agreement of the parties with respect to the Easement and
supersedes all prior discussions, negotiations, understandings,
or agreements relating to the Easement, all of which are
merged herein. No alteration or variation of this instrument
shall be valid or binding unless contained in an amendment
that complies with Section 5.16 hereof.
TO HAVE
AND TO HOLD this Environmental Assets Easement Deed together
with all and singular the appurtenances and privileges belonging
or in any way pertaining thereto, either in law or equity,
either in possession or expectancy, for the proper use and
benefit of TCF, its successors and assigns, for a period
of 70-years.
WITNESS
THE SIGNATURE OF THE LANDOWNER on this ___ day of ________________,
2002.
LANDOWNER:
______________________
By:
______________________
ATTEST:
______________________
STATE
OF MISSISSIPPI
COUNTY
OF _______________________
Personally
appeared before me, the undersigned authority in and for
the said county and state, on this ____ day of _____________________________,
within my jurisdiction, the within named ________________________,
who acknowledged that he is __________________________ of
_________________________, a Mississippi corporation, and
that for an on behalf of the said corporation, and as its
act and deed he executed the above and foregoing instrument,
after first having been duly authorized by said corporation
so to do.
NOTARY
PUBLIC
My Commission
Expires:
__________________________
WITNESS
THE SIGNATURE OF THE GRANTEE on this ___ day of ________
__________,
2002.
TCF:
THE
CARBON FUND, INC.
By:
James
L. Cummins, Executive Vice-President
ATTEST:
___________________________________
STATE
OF MISSISSIPPI
COUNTY
OF WASHINGTON
Personally
appeared before me, the undersigned authority in and for
the said county and state, on this ______________________
day of _______________________, _____________, within my
jurisdiction, the within named James L. Cummins, who acknowledged
that he is the Executive Vice-President of The Carbon Fund,
Inc., a non-profit Mississippi corporation, and that for
and on behalf of the said corporation, and as its act and
deed he executed the above and foregoing instrument, after
first having been duly authorized by said corporation so
to do.
NOTARY
PUBLIC
My Commission
Expires:
__________________________
Exhibit
A - Survey
Exhibit
B - Report
Exhibit
C - Forest Management Principles
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