Easement Grant of Easement for Habitat Protection

Transcription

1 Date: Grantor(s): XXXXXXXXXX Grantee: Tri-Basin Natural Resources District, (hereinafter referred to as Tri-Basin NRD) nd St., Holdrege NE Protected Property: See Exhibit A attached for legal description of the protected property (Property) and Exhibit B for a map of the easement area and restoration plan. Section I. PURPOSE OF THIS EASEMENT AND COMMITMENTS OF THE GRANTOR AND GRANTEE. 1. For the purpose of this document, the Habitat Conservation Easement shall be herein referred to in all cases as Easement. The purpose of this Easement is for the conservation of the wildlife habitat on this Property and to protect or enhance the benefits of that habitat for wildlife. 2. The Grantor(s) includes all current record owners of the Property and all successors of the Property during the duration of the easement. 3. The Grantor(s) is committed to preserving the conservation values of the Property as described in Exhibit C Baseline Documentation Report (BDR). The Grantor agree to confine use of the Property to activities consistent with the purposes of this Easement as described in the BDR. 4. The Grantee is a qualified recipient of this Easement, is committed to preserving the conservation values of the Property as described in the BDR, and committed to upholding the terms of this Easement. 5. GRANT OF CONSERVATION EASEMENT: For and in consideration of the facts above recited and of the mutual covenants, terms, conditions, and restrictions herein contained and pursuant to the laws of the State of Nebraska and in particular 76-2,111 to 76-2, 118, the Grantor hereby grants and conveys as an absolute and unconditional sale unto the Tri-Basin NRD, its successors and assigns, a Conservation Easement over the Property consisting of the following terms and conditions ( Easement ): Page 1 of 9

2 Section II. PROTECTION This easement shall limit the use of the Property to activities that are consistent with the conservation purposes identified herein, including grazing, haying, hunting, fishing, and those uses and practices consistent with the terms hereof and identified below. The easement shall also limit the use of the Property to those recreational uses not associated with the uses and practices prohibited. 1. Permitted Uses and Practices include: A. Livestock grazing at any time of the year. B. Harvesting grasses for hay production, mowing, or seed harvesting, as long as such harvesting is completed after July 15 th each year to provide sufficient time for upland nesting birds to complete the nesting cycle. Habitat management, restoration, management activities, and periodic renovation or re-seeding of existing grass stands with approved native grass and forbes will be permitted with prior written approval of the Tri-Basin Natural Resources District. Haying or harvesting of grasses prior to July 15 th may be allowed by Tri-Basin Natural Resources District with prior written approval if said haying or harvesting is being implemented with the specific purpose of controlling invasive, undesirable, non-native, cool season grasses. C. All other uses compatible with the intent of the easement and not prohibited by the easement. D. Planting of native woody shrubs on not more than 10% of the non-wetland area. Because the easement is intended to protect and maintain wetland and upland wildlife habitat, the following uses and practices on the Property are hereby deemed to be inconsistent with its purpose, and are expressly prohibited: 2. Prohibited Uses and Practices A. Draining or otherwise degrading wetlands or the hydrology of wetlands delineated on Exhibit A by any means, including but not limited to: 1) deep ripping, 2) excavating pits or construction of ditches, 3) pumping, 4) tile draining, 5) filling, causing or permitting the filling in with earth or any other material, and 6) causing or permitting the leveling of any part or portion of said delineated wetland areas. This includes lakes, ponds, marshes, sloughs, swales, swamps, potholes, and other wholly or partially water-covered areas, now existing or subject to recurrence through natural or man-made causes; provided, always, that the lands covered by this conveyance shall include any enlargements of said wetland areas resulting from normal or abnormal increased water. Wetlands and waters of the U.S. are determined by the US Army Corps of Engineers 1987 Delineation Manual. Page 2 of 9

3 B. Altering the topography or other natural features by digging, excavating, plowing, disking, cutting, filling, removing or otherwise destroying the vegetative cover, including agricultural crop production or timber harvesting upon said lands delineated on Exhibit A unless prior written approval is granted by the easement grantee after consultation with a qualified team of wetland experts. C. Erecting, constructing or placing any structures, buildings or improvements including, but not limited to, trailers, mobile homes or other temporary living quarters. D. Establishing or maintaining any feedlot, defined for purposes of this easement as a facility used for the purpose of receiving, confining and feeding livestock. E. Dumping or disposing of refuse and disposing of any material which is toxic to wildlife or considered to contaminate soil, groundwater, streams, lakes or wetlands. F. Planting trees within the wetland. In addition to the permitted and prohibited uses listed above, the Property shall at all times be maintained by Grantor in a manner consistent with the provisions of the BDR. Section III. CONSIDERATION OF EASEMENT 1. In consideration of XXXXXX Dollars, ($XXXXX), the Grantor(s) hereby grant this Easement for the purpose of the conservation of habitat on the above described Property. The consideration set forth herein shall be payable upon the approval of this Easement by the appropriate governing body as set forth in Section V.1 hereof. Section IV. RIGHT OF ACCESS 1. The Grantor(s) agree to allow the Grantee, its agents and designees the right to enter onto the Property for the purpose of monitoring compliance with the terms of the Easement. 2. No right of access by the general public to any portion of this Property is conveyed by this Easement. Section V. DURATION AND TRANSFER OF EASEMENT 1. This Easement shall only become effective in the event of and upon the approval of the appropriate governing body as required by the Nebraska Conservation and Preservation Easements Act (as amended from time to time). Except to the extent provided otherwise herein, the duration of this Easement shall be perpetual, commencing upon the later of: (a) the Page 3 of 9

4 acceptance of the Easement by the Grantee s governing board and (b) the approval of the appropriate governing body. 2. This Easement is an interest in the land (Property) and therefore runs with the land. This agreement binds the parties, their legal successors, representatives and assigns to the terms and conditions of this Easement. Grantor(s) further agree to give written notice to the Grantee of the transfer of any ownership interest in the Property at least 30 days prior to the date of such a transfer. 3. The parties may, by subsequent written agreement, modify the terms of and/or release the easement and the Property therefrom; provided, however, that no release shall be effective until approved by the appropriate governing body as required by the Nebraska Conservation and Preservation Easements Act (as amended from time to time). Section VI. COSTS AND LIABILITIES 1. If it is determined through court action or through mediation that the Grantor(s) have failed to comply with the terms of this Easement, the Grantor(s) shall reimburse the Tri-Basin NRD for reasonable litigation costs and reasonable attorneys fees, and costs of corrective or restoration actions incurred by the Grantee. If Grantor(s) prevail in any action to enforce the terms of this Easement, the Grantee shall reimburse the Grantor(s) for the costs of such litigation and reasonable attorneys fees. 2. In accepting this Easement, the Grantee assumes no responsibility or obligation for costs, liabilities, taxes, or insurance of any kind related to the Property except as explicitly set forth in this Easement. 3. Each Party to this Easement is responsible for their own actions and shall hold the other party harmless from any or all actions, claims, suits, damages, liability or expenses arising from loss of life, personal injury, or property damage arising from such actions or activities. Section VII. OTHER REMEDIES. 1. In the event Grantee deems Grantor in noncompliance with the terms and provisions of this Easement and emergency enforcement action is deemed necessary by Grantee, Grantee shall be entitled to seek and obtain expedited injunctive relief (and any and all other legal and/or equitable remedies) to enforce the terms and provisions of this Easement and to enforce its rights with respect to the Property. 2. In event Grantee deems Grantor in noncompliance with the terms and provisions of this Easement where emergency enforcement action is not deemed necessary by Grantee: Page 4 of 9

5 A. Grantee shall provide Grantor with written notice of the alleged noncompliance, which notification shall set forth the time period in which the noncompliance must be cured. B. In the event Grantor fails to cure the noncompliance within the required time period, the parties shall agree to submit to non-binding mediation. The mediation panel shall consist of one representative chosen by Grantor, one representative chosen by Grantee, and one representative chosen by agreement of the other two representatives. The mediation panel shall work together in a cooperative manner in an effort to resolve the dispute as to Grantor s alleged noncompliance. C. If such mediation fails to resolve the dispute, either party shall be entitled to seek judicial relief as permitted by this Easement or available under law. 3. Grantee s failure to implement any right or remedy upon an event of Grantor s noncompliance with this Easement shall not be deemed a waiver by Grantee of its rights and rememdies upon any subsequent event of noncompliance by Grantor. Section VIII. ACTS BEYOND THE GRANTORS CONTROL 1. The Grantee may not bring an action against the Grantor(s) for modification to this Property resulting from causes beyond the Grantors control, including, but not limited to, unauthorized actions by third parties or natural disasters. Section IX. OTHER TERMS AND CONDITIONS 1. The Grantor(s) will pay all taxes and assessments against the Property. 2. Control of noxious weeds on the Property to protect the public good is required by state law and will be the responsibility of the Grantor(s). Grantor(s) shall also control of other plants and pests consistent with the mutual agreement of the parties. 3. Upon the signatures of all parties and the approval by the appropriate governing body, the Easement shall be filed, duly recorded, and indexed in the office of the Register of Deeds of the County in which the Property is located. 4. Tri-Basin NRD acquired this Easement with North American Wetlands Conservation Fund funds pursuant to a Grant Agreement between the U.S. Fish and Wildlife Service and Ducks Unlimited, Inc., dated August 10, 2004, Agreement Number: G938, a copy of which is kept at the North American Waterfowl & Wetlands Office, U.S. Fish and Wildlife Service, 4401 N. Fairfax Drive, Arlington, VA and at the offices of Ducks Unlimited, Inc. at: 2525 River Road, Bismarck, North Dakota Tri-Basin NRD hereby agrees to Page 5 of 9

6 ensure the long term conservation of the Property by enforcing the terms of the Easement and by obtaining the consent of the U.S. Fish and Wildlife Service prior to any assignment of its interests in the Easement. SIGNATURE OF GRANTORS Signature Signature Acknowledgment State of Nebraska ) ) ss. County ) On this day of in the year 200 before me personally appeared,,,, known to me to be the person(s) described as Grantors who executed the foregoing instrument and acknowledged to me that they (he/she) executed the same as their free act and deed. Notary Public My Commission expires: Acceptance The chairman of the Tr-Basin NRD has executed this agreement this day of in the year of 200. By Title Chairman, Tri-Basin Natural Resources District Page 6 of 9

7 Exhbit A Legal Description THE NORTHWEST QUARTER (NW1/4) OF SECTION ONE (1), TOWNSHIP FIVE (5) NORTH, RANGE EIGHTEEN (18) WEST OF THE 6 TH P.M., PHELPS COUNTY, NEBRASKA, except a tract deeded to the Nebraska & Colorado Railroad Company right-of-way recorded in Book F, Page 437, and except a Warranty Deed to Phelps County, Nebraska, recorded in Deed Book 39, Page 86 Page 7 of 9

8 Exhibit B Map of Easement Area Page 8 of 9

9 Exhibit C Baseline Documentation Report Page 9 of 9