DEED OF CONSERVATION EASEMENT
THIS GRANT DEED OF CONSERVATION EASEMENT (“Easement”) is made this _____ day of ____________, 2004, by [insert name of record owner of Orchards Golf Course, a single/married person or a Kansas corporation. . .] having an address of [insert address of owner], Kansas ("Grantor"), in favor of the City of Lawrence, Kansas, a municipal corporation under the laws of the State of Kansas, having an address at 6 East 6th Street, Lawrence, KS 66044 ("Grantee"). The Grantor and Grantee recognize the important role played by the owners of the 55 tracts of property abutting the Orchard Golf Course, (hereinafter referred to as the “Neighborhood”), in the development and financing of this Deed and in the enjoyment of the Conservation Values described herein. The Neighborhood consists of those lots and parcels specially assessed as set forth in Resolution No. 6523 and Ordinance No. 7747, and amendments thereto, said Resolution and Ordinance attached hereto. In portions of this Easement whereby the Neighborhood is given certain rights and authority, the Neighborhood may only act upon the written permission of a majority of the lots and parcels which are specially assessed as set forth in Resolution No. 6523 and Ordinance No. 7747, and amendments thereto. Each lot and parcel shall have one vote, which may only be cast by a majority of the ownership of each individual lot and parcel. For Tract 55 (West Meadows Condominium Association), such Tract 55 shall only have one vote which shall be determined by a majority vote of the condominium property owners.
WITNESSETH:
WHEREAS, Grantor is the sole owner in fee simple of certain real property in Douglas County, Kansas, more particularly described in Exhibit A attached hereto and incorporated by this reference (the "Protected Property") and depicted on Exhibit B attached hereto and incorporated by this reference;
WHEREAS, the Protected Property possesses scenic, open space and golf course recreational values and which provides wildlife habitat (collectively, “Conservation Values”) of great importance to Grantor, the people of the City of Lawrence, the people of Douglas County and the people of the State of Kansas;
WHEREAS, the specific Conservation Values of the Protected Property are documented in an inventory of relevant features of the Protected Property on file at the offices of Grantee and incorporated by this reference which consists of reports, maps, photographs, and other documentation that the parties agree provide, collectively, an accurate representation of the Protected Property as of the date of this Easement and which is intended to serve as an objective, though nonexclusive, information baseline for monitoring compliance with the terms of this grant ("Baseline Documentation");
WHEREAS, in particular, the Protected Property consists of approximately 30 acres of golf course land;
WHEREAS, Grantor intends that the Conservation Values of the Protected Property be preserved and maintained by permitting only those land uses on the Protected Property that do not significantly impair or interfere with the Conservation Values, which include land uses relating to golf course recreation and open space existing as of the date of this Easement; and
WHEREAS, Grantor further intends, as owner of the Protected Property, to convey to Grantee the right to preserve and protect the Conservation Values of the Protected Property in perpetuity;
WHEREAS, Grantee is a municipal corporation under the laws of Kansas; and
WHEREAS, Grantee agrees by accepting this Easement to honor the intentions of Grantor stated herein and to preserve and protect in perpetuity the Conservation Values of the Protected Property for the benefit of this generation and the generations to come;
NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of the State of Kansas and in particular the Kansas Uniform Conservation Easement Act, Kansas Statutes Annotated 58-3810 et seq., the Grantor hereby voluntarily grants and conveys to Grantee this Easement in perpetuity over the Protected Property of the nature and character and to the extent hereinafter set forth.
1. PURPOSE. All of the above recitals of fact are incorporated herein as if fully set forth. It is the purpose of this Easement to assure that the Protected Property will be retained forever predominantly in its natural, scenic, and open space condition and to prevent any use of the Protected Property that will significantly impair or interfere with the Conservation Values of the Protected Property. Grantor intends that this Easement will confine the use of the Protected Property to such activities, including, without limitation, those involving golf course recreation and open space and that are consistent with wildlife habitat, as are consistent with the purpose of this Easement.
2. RIGHTS OF GRANTEE. To accomplish the purpose of this Easement the following rights are conveyed to Grantee by this Easement:
(a) To preserve and protect the Conservation Values of the Protected Property;
(b) To enter upon the Protected Property annually at reasonable times in order to monitor Grantor’s compliance with the terms of this Easement in accordance with Section 6. Except in cases where Grantee determines that immediate entry is required to prevent, terminate, or mitigate a violation of the Easement, such entry shall be upon prior reasonable notice to Grantor, and Grantee shall not in any case unreasonably interfere with Grantor’s use and quiet enjoyment of the Protected Property;
(c) To prevent any activity on or use of the Protected Property that is inconsistent with the purpose of this Easement and to require the restoration of such areas or features of the Protected Property that may be damaged by any inconsistent activity or use, pursuant to the remedies set forth in Section 6.
3. PROHIBITED USES. Any activity on or use of the Protected Property inconsistent with the purpose of this Easement is prohibited. Without limiting the generality of the foregoing, the following activities and uses are expressly prohibited:
3.1 Structures. There shall be no construction or placing of any Structure (defined hereafter) on the Protected Property, except as allowed in Section 4.4, 4.5, 4.6, and 4.7. The term “Structure” includes, but is not limited to, a house, garage, barn or other building, recreational courts or playing fields, landing strip, mobile home, swimming pool, asphalt, concrete or asphalt pavement, billboard, sign, antenna, storage tank, utility poles, utility lines, utility system, tower, lights, any other temporary or permanent improvement of a similar nature or with similar characteristics.
3.2 Subdivision. The Protected Property may not be divided, partitioned, subdivided or conveyed except in its current configuration as a single unit.
3.3 Mining. There shall be no hard rock, sand, gravel, or soil mining on the Protected Property.
3.4 Minerals and Gas. There shall be no exploration for, development of or extraction of minerals, gas or hydrocarbons on the Protected Property.
3.5 Soil and Water. Any use or activity that causes or is likely to cause significant soil degradation or erosion is prohibited. See Section 4.6, 4.7, and 4.8 for activities allowed for the purpose of storm water drainage facilities and the maintenance of the existing sanitary sewer.
3.6 Watershed and Wetlands. Except as provided in Section 4.6 for the purpose of storm water drainage, there shall be NO:
a. damming, impoundment or channelization of the streams or watercourses on the Protected Property;
b. alteration or manipulation of existing ponds, except after consultation with and written permission from the Grantee, pursuant to Sections 5.1 and 5.2 of this Easement; and
c. draining, filling, dredging, diking or other alteration of the storm drainage areas described in Exhibit __.
3.7 Topography. Except as provided in Section 4.5, 4.6 and 4.8, there shall be no ditching, draining, diking, filling, excavating, extracting or removal of topsoil, sod, sand, gravel, rock, or other materials, or any change in the topography of the Protected Property in any manner.
3.8 Dumping. There shall be no dumping of trash, garbage, hazardous or toxic substances or other substance or material on the Protected Property.
3.9 Roads. There shall be no building of new roads involving excavation of the surface or establishment of other rights-of-way on the Protected Property.
3.10 Timber Harvest. There shall be no commercial timber harvest from the Protected Property.
3.11 Vehicles. Except as provided in Section 4.4 of this Easement, Grantor shall not knowingly allow the operation of motorized vehicles, including but not limited to, cars, trucks, tractors and recreational vehicles, such as snowmobiles, dune buggies, motorcycles, all-terrain vehicles, on the Protected Property.
3.12 Commercial Activities. Except as a public golf course and golf related activities, (including but not limited to legal food and alcohol sales, and the sale of golf related items), within the clubhouse structure Limited Structure Area described in Section 4.5 hereof, commercial activities shall not be permitted on the Protected Property either by Grantor, Grantor’s agents, or Grantor’s personal representatives, heirs, successors and assigns. Commercial recreational activities are prohibited.
3.13 Animal confinement. There shall be no commercial confinement facilities for livestock, swine or poultry on the Protected Property.
4. GRANTOR'S RESERVED RIGHTS. Grantor reserves to himself, and to his personal representatives, heirs, successors, and assigns, all rights accruing from his ownership of the Protected Property, including the right to engage in, or permit or invite others to engage in, all uses of the Protected Property that are not expressly prohibited herein and are not inconsistent with the purpose of this Easement. Without limiting the generality of the foregoing, the following rights are expressly reserved:
4.1 Conveyance. Grantor may sell, give, mortgage, lease or otherwise convey the Property, provided that such conveyance is subject to this Easement and written notice is provided to the Grantee in accordance with section 11 below.
4.2 Timber. Cutting of trees and woody shrubs may be accomplished to maintain the golf course recreational and open space character of the Protected Property.
4.3 Signs. Grantor may place interpretive and other golf related signs on the Protected Property.
4.4 Vehicles. Motorized vehicles may be operated on the Protected Property on the driveway and parking area identified on Exhibit __ . Golf carts may be operated on the Protected Property in a manner consistent with maintaining the character of the Protected Property. Motorized vehicles may be operated on the Protected Property to maintain the golf course and in order to maintain the character of the Protected Property. Use of permitted vehicles should, however, be in a manner that will minimize impact and generally be confined to the Golf Cart Paths and Driveways when and where feasible.
4.5 Limited Structures. Construction of a non-residential one story structure that is an ancillary use to a golf course and/or the expansion of the existing structure (“Clubhouse”) is allowed only on that portion of the Protected Property that is within the area bordered by the following: Starting in the Southeast corner of the Protected Property heading North 250 feet along the East property line of the Protected Property; thence West 310 feet along the property line of, and beyond, the Protected Property; thence South 250 feet to the South boundary line of the Protected Property; and thence East 310 feet along the South boundary line of the Protected Property to the starting point of the Southeast corner of the Protected Property. This described area is identified as the Limited Structure Area in Exhibit ___________.
4.6 Storm Drainage Improvements. The City of Lawrence will undertake “Storm Drainage Improvements” which will extend 450 feet along the existing stream channel north of the box culvert under 15th Street and will consist of grading and placement of erosion resistant materials to stabilize the west bank of the stream. The high stream bank has shown both erosion and slope failures which threaten underground sewers and the stream channel. The west bank will be graded, reinforced and planted with woody vegetation to reduce erosion. Heavy equipment will access the area from the southwest for grading operations and placement of materials. Construction activity will be limited to the stream bed, the west channel bank and the properties west of the stream within the project extents. The City will make every reasonable effort to make certain the Storm Drainage Improvement are done in a manner that does not have a negative economic impact on the golf course operations. The City has the right to maintain the Storm Drainage improvements.
4.7 Existing Structures and Allowed Golf Structures. Grantor is permitted to maintain, repair, and alter the existing Clubhouse and parking area (described in Section 4.5 hereof) consistent with City of Lawrence regulations and Code, as well as the other structures and systems listed below. Description of clubhouse and parking are given in Planning Commission approved Site Plan of December 12, 1978 attached as Exhibit __. Other existing golf structures and golf systems are the fairways, greens, greens flags, tee boxes, watering systems, paths, bridges, retaining walls, bathroom structure on hole 5, benches and golf informational signage at driving tees, existing water well and windmill, and the electrical system as it currently exists for electricity in the clubhouse and operating the watering system.
4.8 Limited Site Work. Limited ditching, draining, diking, filling, excavating, extracting or removal of topsoil, sod, sand, gravel, rock, or other materials, or other limited change in the topography of the Protected Property is only allowed as is required for the efficient operation of a golf course and will be limited, outside the Limited Structure Area, to maintenance, repair and improvement of the fairways and greens and areas directly contiguous and affecting such fairways and greens , except as limited by 3.6. Subject to applicable State and City laws, the Grantor shall retain the right to drill, install and operate water wells for golf course irrigation purposes.
5. NOTICE AND APPROVAL.
5.1 Notice of Intention to Undertake Certain Permitted and Previously Unspecified Actions. Grantor agrees to notify Grantee prior to undertaking any activity specified in Section 4.5, 4.6 or an activity that is not specified in section 4 that is outside the normal activities of a golf course and that may have a material adverse impact on the Conservation Values of the Protected Property. Whenever notice is required, Grantor shall notify Grantee in writing not less than sixty (60) days prior to the date Grantor intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment whether to approve the activity based on its consistency with the purpose of this Easement.
5.2 Grantee's Approval. Where Grantee's approval is required as set forth in paragraph 5.1, Grantee shall grant or withhold its approval in writing within thirty (30) days of receipt of Grantor's written request therefor. Grantee's approval may be withheld only upon a reasonable determination by Grantee that the action as proposed would be inconsistent with the purpose of this Easement.
5.3 Mediation. If a dispute arises between the parties concerning the consistency of any proposed use or activity with the purpose of this Easement, either party may refer the dispute to mediation by request made in writing to the other. Upon such a request by Grantee, Grantor agrees that, pending resolution of the dispute, Grantor shall not proceed with the planned activity. Within ten (10) days of the receipt of such a request, the parties shall select a single trained and impartial mediator. If the parties are unable to agree on the selection of a single mediator, then the parties shall, within fifteen (15) days of receipt of the initial request, each appoint a person to serve as a mediator. These two persons shall select a third person, and that person shall mediate the dispute subject to the following guidelines:
(a) Purpose. The purpose of the mediation is to: (i) promote discussion between the parties; (ii) assist the parties to develop and exchange pertinent information concerning the issues in dispute; and (iii) assist the parties to develop proposals which will enable them to arrive at a mutually acceptable resolution of the controversy. The mediation shall not result in any express or de facto modification or amendment of the terms, conditions, or restriction of this Easement; and
(b) Participation. The mediator may meet with the parties and their counsel jointly or individually. The parties agree that they will participate in the mediation process in good faith and expeditiously, attending all sessions scheduled by the mediator. Representatives of the parties with settlement authority will attend mediation sessions as requested by the mediator; and
(c) Confidentiality. All information presented to the mediator shall be deemed confidential and shall be disclosed by the mediator only with the consent of the parties or their respective counsel. The mediator shall not be subject to subpoena by any party. No statements made or documents prepared for mediation sessions shall be disclosed in any subsequent proceeding or construed as an admission of a party; and
(d) Time Period. Neither party shall be obligated to continue the mediation process beyond a period of ninety (90) days from the date of receipt of the initial request or if the mediator concludes that there is no reasonable likelihood that continuing mediation will result in a mutually agreeable resolution of the dispute; and
(e) Costs. The costs of the mediator shall be borne equally by Grantor and Grantee; the parties shall bear their own expenses, including attorneys' fees, individually.
6. GRANTEE'S REMEDIES.
6.1 Notice of Violation; Corrective Action. If the Neighborhood determines that a violation of the terms of the Easement has occurred, the Neighborhood shall give notice of such violation to the Grantee. If Grantee receives notice of violation from the Neighborhood or if Grantee determines that a violation of the terms of this Easement has occurred or is threatened, Grantee shall give written notice to Grantor of such violation and demand corrective action sufficient to cure the violation and, where the violation involves injury to the Protected Property resulting from any use or activity inconsistent with the purpose of this Easement, to restore the portion of the Protected Property so injured to its prior condition in accordance with a plan approved by Grantee.
6.2 Injunctive Relief. If Grantor fails to cure the violation within thirty (30) days after receipt of notice thereof from Grantee, or under circumstances where the violation cannot reasonably be cured within a thirty (30) day period, fail to begin curing such violation within the thirty (30) day period, or fail to continue diligently to cure such violation until finally cured, Grantee or the Neighborhood may bring an action at law or in equity in a court of competent jurisdiction, to enforce the terms of this Easement, to enjoin the violation, by temporary or permanent injunction (ex parte as necessary), and to require the restoration of the Protected Property to the condition that existed at the time of this grant.
6.3 Damages. Grantee shall be entitled to recover damages for violation of the terms of this Easement or injury to any Conservation Values protected by this Easement, including, without limitation, damages for the loss of scenic, aesthetic, or environmental values. Without limiting Grantor's liability therefor, Grantee, in its sole discretion, may apply any damages recovered to the cost of undertaking any corrective action on the Protected Property.
6.4
Emergency Enforcement. If Grantee or the Neighborhood in their sole
discretion, determines that circumstances require immediate action to prevent
or mitigate significant damage to the Conservation Values of the Protected
Property, Grantee or the Neighborhood may pursue its remedies under this
section 6 without prior notice to Grantor or without waiting for the period
provided for cure to expire. The Grantee shall post
a written notice prior to of such
intended emergency enforcement action on the Club House door of the Orchards
Golf Course at 3000 West Fifteenth Street in Lawrence, Kansas.
6.5 Scope of Relief. Grantee's and the Neighborhood’s rights under this section 6 apply equally in the event of either actual or threatened violations of the terms of this Easement. Grantor agrees that Grantee's and the Neighborhood’s remedies at law for any violation of the terms of this Easement are inadequate and that Grantee and the Neighborhood shall be entitled to the injunctive relief described in paragraph 6.2, both prohibitive and mandatory, in addition to such other relief to which Grantee and Neighborhood may be entitled, including specific performance of the terms of this Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's and Neighborhood’s remedies described in this section 6 shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity.
6.6 Cost of Enforcement. All reasonable costs incurred by Grantee, Neighborhood and Grantor in enforcing the terms of this Easement including, without limitation, costs and expenses of litigation, including expert witness fees and reasonable attorneys' fees, and any costs of restoration necessitated by Grantor's violation of the terms of this Easement, shall be borne by the non-prevailing party in such litigation.
6.7 Forbearance. Forbearance by Grantee or Neighborhood to exercise its rights under this Easement in the event of any breach of any term of this Easement by Grantor shall not be deemed or construed to be a waiver by Grantee or Neighborhood of such term or of any subsequent breach of the same or any other term of this Easement or of any of Grantee's or Neighborhood’s rights under this Easement. No delay or omission by Grantee or Neighborhood in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver.
6.8 Waiver of Certain Defenses. Grantor hereby waives any defense of laches, estoppel, or prescription.
6.9 Acts Beyond Grantor's Control. Nothing contained in this Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Protected Property resulting from causes beyond Grantor’s control, including, without limitation, trespass, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Protected Property resulting from such causes. Before taking such emergency action, however, Grantor shall notify Grantee by the best means practicable.
7. COSTS, LIABILITIES, TAXES, AND ENVIRONMENTAL COMPLIANCE.
7.1 Costs, Legal Requirements, and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Protected Property, including the maintenance of adequate liability insurance coverage. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Easement, and all such activity or use shall be undertaken in accordance with all applicable federal, state, and local laws, regulations, and requirements. Grantor shall keep the Protected Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor.
7.2 Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Protected Property by competent authority (collectively "taxes"), including any taxes imposed upon, or incurred as a result of, this Easement, and shall furnish Grantee with satisfactory evidence of payment upon request.
7.3 Representation and Warranties. Grantor represents and warrants that, after reasonable investigation and to the best of his knowledge:
(a) No substance defined, listed, or otherwise classified pursuant to any environmental act as solid, 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 exists or has been released, generated, treated, stored, used, disposed of, deposited, abandoned, or transported in, on, from, or across the Protected Property; and
(b) There are not now any underground storage tanks located on the Protected Property, whether presently in service or closed, abandoned, or decommissioned, and no underground storage tanks have been removed from the Protected Property; and
(c) Grantor and the Protected Property are in compliance with all federal, state, and local laws, regulations, and requirements applicable to the Protected Property and its use; and
(d) There is no pending or threatened litigation in any way affecting, involving, or relating to the Protected Property; and
(e) No civil or criminal proceedings or investigations have been instigated at any time or are now pending, and no notices, claims, demands, or orders have been received, arising out of any violation or alleged violation of, or failure to comply with, any federal, state, or local law, regulation, or requirement applicable to the Protected Property or its use, nor do there exist any facts or circumstances that Grantor might reasonably expect to form the basis for any such proceeding, investigations, notices, claims, demands, or orders.
(f) Grantor hereby warrants and represents that the Grantor is seized of the Protected Property in fee simple and has good right to grant and convey this Easement, that the Protected Property is free and clear of any and all encumbrances and that Grantee and its successors and assigns shall have the use of and enjoy all of the benefits derived from and arising out of this Easement.
7.4 Removal and Remediation. If, at any time, there occurs, or has occurred, a release, threatened release, or presence in, on, or about the Protected Property of any substance now or hereafter defined, listed, or otherwise classified pursuant to any environmental act as solid, 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, Grantor agrees to take all steps necessary to assure its containment and/or removal and remediation, including any cleanup that may be required.
7.5 Control. Nothing in this Easement shall be construed as giving rise, in the absence of a judicial decree, to any right or ability in Grantee to exercise physical or managerial control over the day-to-day operations of the Protected Property, or any of the Grantor’s activities on the Protected Property, or otherwise to become an operator with respect to the Protected Property within the meaning of any environmental act.
7.6 Hold Harmless. Grantor hereby releases and agrees to hold harmless, indemnify, and defend Grantee and its members, directors, officers, employees, agents, and contractors and the 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, costs and expenses of litigation, including expert witness’ fees and reasonable attorneys' fees, arising from or in any way connected with: (a) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Protected Property, unless due solely to the intentional action of any of the Indemnified Parties; (b) the violation or alleged violation of, or other failure to comply with, any environmental act, in any way affecting, involving, or relating to the Protected Property; (c) the release, threatened release, or presence in, on, from, or about the Protected Property, at any time, of any substance now or hereafter defined, listed, or otherwise classified pursuant to any environmental act as solid, 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; (d) the obligations, covenants, representations, and warranties of paragraphs 7.1 through 7.5; and (e) enforcement of this indemnity clause by the Grantee in an action in which the Grantee prevails.
7.7 “Environmental Act” Defined. As used in this agreement, the term “environmental act” includes, but is not limited to, the Comprehensive Response, Compensation and Liability Act (CERCLA), the Resource, Conservation and Recovery Act (RCRA), or successor statutes to either, their state or local counterparts or any federal, state, or local enactment or regulation relating to the clean up, disposal or control of waste, or any other federal, state or local enactment or regulation relating to the protection of the environment, or the protection of natural resources such as air, water or soil or relating to the protection of human health and welfare. The term also includes any rule of common law, including but not limited to nuisance, relating to any of the above.
8. EXTINGUISHMENT AND CONDEMNATION.
8. 1 Extinguishment. If circumstances arise in the future that render the purpose of this Easement impossible to accomplish, this Easement can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. Grantor and Grantee agree that the terms of this Easement shall survive any merger of the fee and easement interests in the Protected Property. The amount of the proceeds to which Grantee shall be entitled, after the satisfaction of prior claims, from any sale, exchange, or involuntary conversion of all or any portion of the Protected Property subsequent to such termination or extinguishment, shall be the stipulated fair market value of the Easement, or proportionate part thereof, as determined in accordance with paragraph 8.2.
8.2 Valuation. This Easement constitutes a real property interest immediately vested in Grantee, which, for the purposes of paragraph 8.1, the parties stipulate to have a fair market value determined by multiplying (a) the fair market value of the Protected Property unencumbered by the Easement (minus any increase in value after the date of the grant attributable to improvements) by (b) the ratio (x/y) of the value of the Easement at the time of this grant (x) to the value of the Protected Property, without deduction for the value of the Easement, at the time of this grant (y). The values at the time of this grant shall be those values used to calculate the deduction for federal income tax purposes allowable by reason of this grant, pursuant to Section 170(h) of the Internal Revenue Code. For the purposes of this paragraph, the ratio of the value of the Easement to the value of the Protected Property unencumbered by the Easement shall remain constant.
8.3 Condemnation. If all or any part of the Protected Property is taken by exercise of the power of eminent domain or acquired by purchase in lieu of condemnation, whether by public, corporate, or other authority, so as to terminate this Easement, in whole or in part, Grantor and Grantee shall act jointly to recover the full value of the interests in the Protected Property subject to the taking or in lieu purchase and all direct or incidental damages resulting therefrom. All expenses reasonably incurred by Grantor and Grantee in connection with the taking or in lieu purchase shall be paid out of the amount recovered. Grantee's share of the balance of the amount recovered shall be determined by multiplying that balance by the ratio set forth in paragraph 8.2.
8.4 Application of Proceeds. Grantee shall use any proceeds received under the circumstances described in this section 8 in a manner consistent with its conservation purposes, which are exemplified by this grant.
9. AMENDMENT. If circumstances arise under which an amendment to or modification of this Easement would be appropriate, Grantor and Grantee are free to jointly amend this Easement only upon written approval of 28 of the 55 (which is a majority) members of the Neighborhood; and provided that any amendment shall be consistent with the purpose of this Easement, and shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of Douglas County, Kansas.
9a. SUBORDINATION. At the time of conveyance of this Easement, the Protected Property is subject to a mortgage, the holder of which has agreed by separate agreement, a copy of which is attached hereto as Exhibit __and incorporated by reference herein, to subordinate its rights in the Protected Property to the extent necessary to permit Grantee to enforce the purpose of this Easement in perpetuity and to prevent any modification or extinguishment of this Easement by the exercise of any rights of the mortgage holder.
10. ASSIGNMENT. This Easement is transferable, but Grantee may assign its rights and obligations under this Easement only to an organization that is a qualified organization at the time of transfer under Section 170(h) of the Internal Revenue Code (or any successor provision then applicable), and the applicable regulations promulgated thereunder, and authorized to acquire and hold conservation easements under Kansas Statutes Annotated 58-3810 et seq. (or any successor provision then applicable) or the laws of the United States. As a condition of such transfer, Grantee shall require that the conservation purpose that this grant is intended to advance continue to be carried out. Grantee agrees to give written notice to Grantor of an assignment at least thirty (30) days prior to the date of such assignment. The failure of Grantee to give such notice shall not affect the validity of such assignment nor shall it impair the validity of this Easement or limit its enforceability in any way.
11. SUBSEQUENT TRANSFERS. Grantor agrees to incorporate the terms of this Easement by reference in any deed or other legal instrument by which they divest themselves of any interest in all or a portion of the Protected Property, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee of the transfer of any interest at least twenty (20) days prior to the date of 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.
12. ESTOPPEL CERTIFICATES. Upon request by Grantor, Grantee shall within twenty (20) days execute and deliver to Grantor, or to any party designated by Grantor, any document, including an estoppel certificate, which certifies, to the best of Grantee's knowledge, Grantor’s compliance with any obligation of Grantor contained in the Easement or otherwise evidences the status of this Easement. Such certification shall be limited to the condition of the Protected Property as of Grantee's most recent inspection. If Grantor request more current documentation, Grantee shall conduct an inspection, at Grantor’s expense, within thirty (30) days of receipt of Grantor’s written request therefor.
13. NOTICES. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantor: _________________
_________________
_________________
and _________________
_________________
_________________
To Grantee: City Clerk
City of Lawrence
City Hall, 6 East 6th Street
P.O. Box 708
Lawrence, Kansas 66044
And to
Third Party Mr. Jack Skeels c/o Orchards Benefit District
Steering
Committee
Beneficiary 3005 Oxford
Road
Lawrence, KS 66049
or to such other address as either party from time to time shall designate by written notice to the other.
14. RECORDATION. Grantee shall record this instrument immediately upon the full execution in the official records of Douglas County, Kansas, and may re-record it at any time as may be required to preserve its rights in this Easement.
15. GENERAL PROVISIONS.
15.1 Controlling Law. The interpretation and performance of this Easement shall be governed by the laws of the State of Kansas.
15.2 Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed in favor of the grantee to effect the purpose of this Easement and the policy and purpose of Kansas Statutes Annotated 58-3810 et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid.
15.3 Severability. If any provision of this Easement, or the application thereof to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby.
15.4 Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to this 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 9.
15.5 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor’s title in any respect.
15.6 Successors. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon Grantor and his personal representatives, heirs, successors and assigns, and inure to the benefit of the Grantee and its successors and assigns, and shall continue as a servitude running in perpetuity with the Protected Property. The terms "Grantor" and "Grantee," wherever used herein, and any pronouns used in place thereof, shall include, respectively, the above-named Grantor and his personal representatives, heirs, successors, and assigns, and the above-named Grantee and its successors and assigns.
15.7 Termination of Rights and Obligations. A party's rights and obligations under this Easement terminate upon transfer of the party's interest in this Easement or Protected Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer.
15.8 Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation.
15.9 Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling.
TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever.
IN WITNESS WHEREOF Grantor and Grantee have set their hands on the day and year first above written.
Grantor:
by__________________________________
[Grantor's printed name]
Grantee:
By: _______________________________
Print Name: ___________________________
Title: _______________________________
Witnessed
by: Designated Representative, Orchard Benefit District Neighborhood
Association Steering Committee
By: ______________________________
Print Name: ________________________
Print Title: _________________________
[insert acknowledgement forms for each party]