This
is a sample
Preservation Agreement
(Conservation
Easement)
developed by the Saginaw Basin
Land Conservancy. This document
provides landowners interested in placing a
preservation
agreement on their
property with an approximate idea of what the
preservation agreement will look like. The general format (i.e., recitations, restrictions,
reservations) for all
agreements is usually the same.
But, because every property is different, there is always some
variation in the specific requirements for each
preservation
agreement.
In
this example, the subject property is an 80-acre woodlot with 20 acres of
wetlands, a 5-acre pond, and 2000’ of frontage on the Cass River.
The family has a 1500 ft2 house with an attached garage on
one corner of the property.
SAMPLE PRESERVATION AGREEMENT
DATE: OCTOBER 30, 2OO5
DONOR/OWNER:
JOHN AND MARY SMITH, HUSBAND AND WIFE
1234
JONES STREET
XYZ, MI 46000
DONEE/CONSERVANCY:
SAGINAW BASIN LAND CONSERVANCY
P.O. BOX 222
B
For
Purposes of this Preservation Agreement, the Donor, who is the current Owner,
and all subsequent Owners of the subject Property, will be referred to as the
“Owner” throughout this Preservation Agreement.
The Saginaw Basin Land Conservancy will be referred to as the
“Conservancy” throughout this Preservation Agreement.
PROPERTY:
SW ¼ of the NE ¼ T.15N R.7W .
. . (a complete legal description is included here)
CONVEYANCE:
The Owner conveys and warrants to the Conservancy a perpetual
Preservation Agreement over the Property.
The scope of this Preservation Agreement is set forth in this agreement. This conveyance is a gift from the Donor to the Conservancy.
Accordingly, this is exempt from Transfer Tax pursuant to MCL
207.505(a) and 207.526(a).
THE OWNER AND THE CONSERVANCY AGREE TO THE FOLLOWING:
1.
PURPOSES OF THIS PRESERVATION AGREEMENT AND COMMITMENTS OF THE
DONOR/OWNER AND THE SAGINAW BASIN LAND CONSERVANCY.
A. This Preservation Agreement assures that the Property will be perpetually preserved in its predominately natural, scenic, forested, wetland, and open space condition. The Purposes of this Preservation Agreement are to protect the Property’s natural resource and watershed values; to maintain and enhance biodiversity; to retain quality habitat for native plants and animals, and to maintain and enhance the natural features of the Property. Any uses of the Property which may impair or interfere with the above stated Conservation Values are expressly prohibited.
B. The Donor is the fee simple title Owner of the Property and is committed to preserving the Conservation Values of the Property. The Owner agrees to confine use of the Property to activities consistent with the Purposes of this Agreement and the preservation of the Conservation Values.
C. The Saginaw Basin Land Conservancy is a qualified Recipient of this Preservation Agreement, is committed to preserving the Conservation Values of the Property, and is committed to upholding the terms of this Preservation Agreement. The Conservancy is a tax-exempt, non-profit Michigan Corporation qualified under Internal Revenue Code §§ 501(c)(3) and 170(h)(4)(ii) and (iii); and under the Conservation and Historic Preservation Easement Sub Part 11 of Part 21 of the Natural Resources and Environmental Protection Act (NREPA) MCL §§ 324.2140 et seq. The Conservancy protects natural habitats of fish, wildlife, plants, and the ecosystems that support them. The Conservancy also preserves open spaces, including farms and forests, where such preservation is for the scenic enjoyment of the general public or pursuant to clearly delineated governmental conservation policies and where it will yield a significant public benefit.
D. CONSERVATION VALUES AND PUBLIC POLICY. The Property possesses natural, scenic, open space, biological, ecological, and water quality protection values of prominent importance to the Owner, the Conservancy, and the public. These values are referred to as the “Conservation Values” in this Agreement. The Property is preserved pursuant to a clearly delineated federal, state, or local conservation policy and yields a significant public benefit. The following legislation, regulations, and policy statements establish relevant public policy:
1.
The State of Michigan has recognized the importance of protecting our
natural resources as delineated in the 1963 Michigan Constitution, Article IV,
Section 52: “The conservation and development of the natural resources of
the state are hereby declared to be of paramount public concern in the
interest of the health, safety, and general welfare of the people. The legislature shall provide for the protection of the air,
water, and other natural resources of the state from pollution, impairment,
and destruction.”
2.
Conservation and Historic Preservation Easement, Sub part 11 of Part 21
of the Michigan Natural Resources and Environmental Protection Act - MCL §§
324.2140 et seq.;
3.
Biological Diversity Conservation, Part 355 of the Michigan Natural
Resources and Environmental Protection Act – MCL §§ 324.35501 et seq; (Legislative
Findings § 324.35502);
4.
Wetland Protection, Part 303 of the Michigan Natural Resources and
Environmental Act - MCL §§ 324.30301 et seq.; (Legislative Findings
MCL § 324.30302);
5.
Water Pollution Control Act of 1972, 33 USC §§ 1251 - 1387 (§1251
Goals & Policy; § 1344 Wetlands permitting, aka “Section 404” Clean
Water Act.);
6.
Inland Lakes and Streams, Part 301 of the Michigan Natural Resources
and Environmental Protection Act - MCL §§ 324.30101 et seq.;
7. Soil Conservation, Erosion, and Sedimentation Control, Parts 91 & 93 of the Michigan Natural Resources and Environmental Protection Act – MCL §§ 324.9101 et seq; 324.9301 et seq; (Legislative Policy § 324.9302);
1.
The Property contains significant natural habitat in which fish,
wildlife, plants, or the ecosystems which support them, thrive in a natural
state.
2.
Wetlands, as described in Wetland Protection, Part 303 of the Michigan
Natural Resources and Environmental Code MCL 324.30301 et seq., identified as
important natural resources for the people of the State of Michigan, are
present on the Property. These
wetlands provide habitat for aquatic invertebrates, reptiles, amphibians and
wetland vegetation. The wetlands
also play an important role in flood storage, groundwater recharge, and
sediment, nutrient, and chemical pollution control for the Saginaw Basin.
3.
The Property is characteristic of a
northern hardwood forest. Its
dominant vegetation is beech and maple interspersed with oak. These
plant communities are in a relatively natural and undisturbed condition and
support the full range of wildlife species found in these habitat types.
4.
The Property includes approximately 2000 feet of frontage on the
ABC River, one of the major waterways flowing into the Saginaw Bay.
Protection of riparian areas along this stream serves to prevent
sediment, nutrient and other pollution flows into the Bay.
Protection of stream banks in their natural state also enhances the
habitat for native coldwater fish species.
5. The Property possesses a scenic landscape and natural character visible
from North B Road and MI-X highway, which would be impaired by modification of
the Property.
6. There is a reasonable possibility that the Conservancy may acquire
other valuable property rights on nearby or adjacent properties to expand the
Conservation Values preserved by this Preservation Agreement.
E.
BASELINE DOCUMENTATION. Specific Conservation Values of the Property have been
documented in a natural resource inventory signed by the Owner and the
Conservancy. This “Baseline
Documentation Report” consists of maps, a depiction of all existing
human-made modifications, prominent vegetation, identification of flora and
fauna, land use history, distinct natural features, and photographs.
The parties acknowledge that this natural resources inventory, the
Baseline Documentation Report, is an accurate representation of the Property
at the time of this donation.
F.
PROHIBITED ACTIONS. Any
activity on, or use of, the Property which is inconsistent with the Purposes
of this Preservation Agreement or which is detrimental to the Conservation
Values is expressly prohibited. By
way of example, but not by way of limitation, the following activities and
uses are explicitly prohibited:
1.
Division. Any
division or subdivision of the Property is prohibited.
2.
Commercial Activities. Any commercial activity on the Property is prohibited.
De minimis commercial recreational activity is, however,
permitted.
3.
Industrial Activities. Any industrial activity on the Property is prohibited.
4.
Construction. The
placement or construction of any human-made modification such as, but not
limited to, structures, buildings, fences, roads, and parking lots is
prohibited, except as specified in Part 1 Section G, paragraph 2 below.
5.
Cutting Vegetation. Any cutting of trees or vegetation, including pruning or
trimming, is prohibited, except for the maintenance of vegetation for lawns
and gardens as specified in Part 1, Section G paragraph 2 or for the
establishment and maintenance of trails as described in Part 1, Section G
paragraph 3 below. Control of
noxious or invasive plants and removal of diseased vegetation is permitted
only in accordance with a plan approved by the Conservancy.
6.
Land Surface Alteration. Any mining or alteration of the surface of the
land is prohibited, including any substance that must be quarried or removed
by methods that will consume or deplete the surface estate, including, but not
limited to, the removal of topsoil, sand, gravel, rock, and peat. In addition, exploring for, developing, and extracting oil,
gas, hydrocarbons, or petroleum products are all prohibited activities.
7.
Dumping. There
shall be no use of the Property for sanitary landfill, for underground storage
tanks, for the installation and use of an incinerator; nor any dumping of
pesticides, hazardous chemicals, refuse, trash, junk, dead animals, abandoned
vehicles, ashes, manure or waste material.
8.
Agricultural Uses. There
shall be no agricultural use of the Property including but not limited to,
crops, pasture, livestock and silviculture.
9.
Water Courses, Ground Water.
Natural water courses, lakes, wetlands, or other bodies of water may
not be altered. In addition,
water from ground or surface sources may not be diverted.
10.
Off-Road Recreational Vehicles.
Motorized off-road vehicles such as, but not limited to, snowmobiles,
dune buggies, all-terrain vehicles, and motorcycles may not be operated off of
designated roads on the Property.
11.
Signs and Billboards.
Billboards are prohibited. Signs
are prohibited, except the following signs may be displayed to state:
The
name and address of the property or the owner’s name.
The
area is protected by a Preservation Agreement.
Prohibition
of any unauthorized entry or use.
An
advertisement for the sale or rent of the Property.
G.
PERMITTED USES.
The Owner retains all ownership rights which are not expressly
restricted by this Preservation Agreement.
In particular, the following rights are reserved:
1.
Right to Convey. The
Owner retains the right to sell, mortgage, bequeath, or donate the Property.
Any conveyance will remain subject to the terms of the Preservation
Agreement and the subsequent Owner will be bound by all obligations in this
Agreement.
2.
Right to Maintain and Replace Existing Structures, Yards and Garden
Areas. The Owner
retains the right to maintain, renovate, and replace the existing house and
garage, as noted in the Baseline Documentation Report, in substantially the
same location and size. Any
expansion or replacement may not substantially alter the character or function
of the structure. Prior to
beginning renovation or replacement of the existing structures, the Owner will
provide a written plan to the Conservancy for the Conservancy’s review and
approval. Such approval shall not
be unreasonably withheld. The
Owner also retains the right to maintain a yard and garden in the ¾ acre area
described in the Baseline Documentation Report.
3. Right
to Recreational Use. The Owner retains the right to use the Property for
recreational purposes, including hunting and fishing pursuant to applicable
state and federal regulations that may be in effect at the time.
To enhance access for recreational use, the Owner retains the right to
construct natural, unpaved trails provided that any trail or trail system is
sited and constructed in accordance with a plan approved by the Conservancy.
H.
RIGHTS OF THE CONSERVANCY.
The Owner confers the following rights upon the Conservancy to
perpetually maintain the Conservation Values of the Property:
1.
Right to Enter. The
Conservancy has the right to enter the Property at reasonable times to monitor
the Preservation Agreement Property. Furthermore,
the Conservancy has the right to enter the Property at reasonable times to
enforce compliance with, or otherwise exercise its rights under, this
Preservation Agreement. The
Conservancy may not, however, unreasonably interfere with the Owner’s use
and quiet enjoyment of the Property. The
Conservancy has no right to permit others to enter the Property.
The general public is not granted access to the Property under this
Preservation Agreement.
2.
Right to Preserve. The Conservancy has the right to prevent any
activity on or use of the Property that is inconsistent with the Purposes of
this Preservation Agreement or detrimental to the Conservation Values of the
Property.
3.
Right to Require Restoration.
The Conservancy has the right to require the Owner to restore the areas
or features of the Property which are damaged by any activity inconsistent
with this Preservation Agreement.
4.
Signs. The
Conservancy has the right to place signs on the Property which identify the
land as protected by this Preservation Agreement. The number and location of any signs are subject to the
Owner’s approval.
2. CONSERVANCY’S REMEDIES. This section addresses cumulative remedies of the Conservancy and limitations on these remedies.
B.
Acts Beyond Owner’s Control. The Conservancy may not bring an action against the
Owner for modifications to the Property resulting from causes beyond the
Owners’ control, including, but not limited to, unauthorized actions by
third parties, natural disasters such as unintentional fires, floods, storms,
natural earth movement, or even an Owner’s well-intentioned action in
response to an emergency resulting in changes to the Property.
The Owner has no responsibility under this Preservation Agreement for
such unintended modifications.
C.
Notice and Demand. If
the Conservancy determines that the Owner is in violation of this Preservation
Agreement, or that a violation is threatened, the Conservancy shall provide
written notice to the Owner. The
written notice will identify the violation and request corrective action to
cure the violation and, where the Property has been injured, to restore the
Property.
However, if at any time the Conservancy determines, at its sole discretion, that the violation constitutes immediate and irreparable harm, no written notice is required. The Conservancy may then immediately pursue its remedies to prevent or limit harm to the Conservation Values of the Property.
If
the Conservancy determines that this Preservation Agreement is or is expected
to be violated, and the Conservancy’s good-faith and reasonable efforts to
notify the Owner are unsuccessful, the Conservancy may pursue its lawful
remedies to mitigate or prevent harm to the Conservation Values without prior
notice and without awaiting the Owner’s opportunity to cure.
The Owner agrees to reimburse all reasonable costs associated with this
effort.
D.
Failure to Act.
If, within 28 days after written notice, the Owner does not implement
corrective measures requested by the Conservancy, the Conservancy may bring an
action in law or in equity to enforce the terms of the Preservation Agreement.
In the case of immediate or irreparable harm, or if an Owner is unable
to be notified, the Conservancy may invoke these same remedies without
notification and/or awaiting the expiration of the 28-day period.
The
Conservancy is entitled to enjoin the violation through temporary or permanent
injunctive relief and to seek specific performance, declaratory relief,
restitution, reimbursement of expenses, and/or an order compelling the Owner
to restore the Property. If the
court determines that the Owner has failed to comply with this Preservation
Agreement, the Owner shall also reimburse the Conservancy for all reasonable
litigation costs and reasonable attorney’s fees, and all costs of corrective
action or Property restoration incurred by the Conservancy.
E.
Unreasonable Litigation. If the Conservancy initiates litigation against the
Owner to enforce this Preservation Agreement, and if the court determines that
the litigation was initiated without reasonable cause or in bad faith, then
the court may require the Conservancy to reimburse the Owner’s reasonable
costs and reasonable attorney’s fees in defending the action.
F.
Actual or Threatened Non-Compliance.
The Conservancy’s rights under this Section, Conservancy Remedies,
apply equally in the event of either actual or threatened violations of the
terms of this Agreement. The Owner agrees that the Conservancy’s claim for money
damages for any violation of the terms of this Agreement is inadequate.
The Conservancy shall also be entitled to affirmative and prohibitive
injunctive relief and specific performance, both prohibitive and mandatory.
The Conservancy’s claim for injunctive relief or specific performance
for a violation of this Preservation Agreement shall not require proof of
actual damages to the Conservation Values.
G.
Cumulative Remedies.
The preceding remedies of the Conservancy are cumulative.
Any, or all, of the remedies may be invoked by the Conservancy if there
is an actual or threatened violation of this Preservation Agreement.
3.
NOTIFICATION PROVISION. The Conservancy is entitled to 60 Days written
notice whenever its approval is required under this Preservation Agreement.
If the Conservancy fails to respond within 60 Days after it receives
the written request, then its approval shall be deemed given.
This implied approval shall not extend to any activity contrary to this
Preservation Agreement or impairing a Conservation Value.
The Conservancy’s approval shall continue for three years.
If the approved activity is not completed within three years after the
approval date, then the Owner must re-submit the written application to the
Conservancy.
4.
PRESERVATION AGREEMENT REQUIREMENTS UNDER MICHIGAN LAW AND UNITED
STATES TREASURY REGULATIONS.
A.
This Preservation Agreement is created pursuant to the Conservation and
Historic Preservation Easement, Sub part 11 of Part 21 of the Michigan Natural
Resources and Environmental Protection Act (NREPA) - MCL §§ 324.2140 et
seq.
B.
This Preservation Agreement is established for conservation purposes
pursuant to the Internal Revenue Code, as amended at Title 26, U.S.C.A.,
Section 170(h)(1)-(6) and Sections 2031(c), 2055, and 2522, and under Treasury
Regulations at Title 26 C.F.R. § 1.170A-14 et seq, as amended.
C.
The Conservancy is qualified to hold Preservation Agreements pursuant to
these statutes. It is a
publicly funded, non-profit 501(c)(3) organization.
5. OWNERSHIP COSTS AND LIABILITIES. In accepting this Preservation Agreement, the Conservancy shall have no liability or other obligation for costs, liabilities, taxes, or insurance of any kind related to the Property. The Conservancy’s rights do not include the right, in absence of a judicial decree, to enter the Property for the purpose of becoming an operator of the Property within the meaning of the Comprehensive Environmental Response, Compensation, and Liability Act. The Conservancy, its members, trustees or directors, officers, employees, and agents have no liability arising from injury or death to any person or physical damage to any property on the Property. The Owner agrees to defend the Conservancy against such claims arising during the term of the Owner’s ownership of the Property.
6. HAZARDOUS MATERIALS. The Owner warrants that Owner has no knowledge of a release of hazardous substances or hazardous wastes on the Property. The Owner agrees to protect and defend the Conservancy against any claims of hazardous materials contamination on the Property.
A.
Unexpected Change in Conditions.
If subsequent circumstances render the Purposes of this Preservation
Agreement impossible to fulfill, then this Preservation Agreement may be
partially or entirely terminated only by judicial proceedings.
The Conservancy will then be entitled to compensation in accordance
with the provisions of IRC Treasury Regulations Section 1.170A-14(g)(6)(ii).
B.
Eminent Domain. If
the Property is taken, in whole or in part, by power of eminent domain, then
the Conservancy will be entitled to compensation by the method as is set forth
in IRC Treasury Regulations Section 1.170A-14(g)(6)(ii).
9.
LIBERAL CONSTRUCTION. This
Preservation Agreement shall be liberally construed in favor of maintaining the
Conservation Values of the Property and in accordance with the Conservation
and Historic Preservation Easement, Sub part 11 of Part 21 of the Michigan
Natural Resources and Environmental Code MCL 324.2140 et seq.
10.
NOTICES. For
purposes of this agreement, notices may be provided to either party by
personal delivery or by mailing a written notice to the party (at the last
known address of a party) by First Class mail.
11.
SEVERABILITY. If
any portion of this Preservation Agreement is determined to be invalid, the
remaining provisions will remain in force.
12.
SUCCESSORS. This
Preservation Agreement is binding upon, and inures to the benefit of, the
Donor/Owner’s and the Conservancy’s successors in interest.
All subsequent Owners of the Property are bound to all provisions of
this Preservation Agreement to the same extent as the Donor.
13.
TERMINATION OF RIGHTS AND OBLIGATIONS.
A party’s future rights and obligations under this Preservation
Agreement terminate upon transfer of that party’s interest in the Property.
Liability for acts or omissions occurring prior to transfer will
survive the transfer.
14.
MICHIGAN LAW. This
Preservation Agreement will be construed in accordance with Michigan Law.
15. ENTIRE AGREEMENT. This Preservation Agreement sets forth the entire agreement of the parties. It is intended to supersede all prior discussions or understandings.