PURCHASE AGREEMENT FOR CONSERVATION EASEMENT

THIS FORM SHOULD BE USED ONLY IN CONSULTATION WITH A CONSERVANCY ATTORNEY

Note: This template does not include state-specific provisions. Attorneys, please modify, as needed, to incorporate state-specific provisions and conservation easement provisions.

When using this template, select the applicable provisions from the choices in brackets. If there are multiple choices within brackets, separated by the word “OR”, then select only one choice and delete the rest. When all choices have been made, and the inapplicable choices have been deleted, remove all highlighted instructions, the bracket symbols, and all other words or symbols in bold throughout the document except that defined terms in parenthesis, such as (the “Agreement”) and references to Exhibits should remain in bold. If you have deleted sections, remember to renumber and to change any section references in the body of the text accordingly.

This is an agreement between list all owners, including spouses not listed on the title if they have an ownership right under state law __________________ [and] __________________(the “Seller”), whose address is _______________ and ___________ Conservancy, a ______________________ corporation, its successors and assigns (the “Conservancy”) having its principal office at _________________, for the sale and purchase of a perpetual conservation easement (the “Conservation Easement”) over that land described in Exhibit A located in the [City OR Town] of ____________, County of ______________, [State OR Commonwealth] of ___________, containing __________ (____) acres, more or less (the “Property”).

In consideration of __________________ ($_______ ) paid by the Conservancy [to the Seller OR into escrow as described below], (the “Earnest Money”) and of the covenants and agreements contained in this Purchase Agreement for Conservation Easement (the “Agreement”), the adequacy of which is hereby acknowledged, the Seller agrees to sell to the Conservancy and the Conservancy agrees to purchase from the Seller the Conservation Easement under the following terms and conditions:

Choose one of the following three choices for Section 1.

Choose the first if the earnest money will be deposited in escrow and the escrow agent will sign the purchase agreement to confirm its agreement to manage the funds in accordance with the terms of the purchase agreement. With this alternative, include the signature block for the escrow agent at the end of this template.

Choose the second if the parties and the escrow agent will sign a separate agreement regarding the handling of the earnest money. With this second alternative, attach the escrow agreement as an exhibit.

Choose the third if the earnest money amount is not significant enough to merit an escrow deposit, and you specified in the preceding paragraph that the earnest money would be paid directly to the seller.

05/2020 Real Estate Practices Team

1. The Conservancy will wire transfer the Earnest Money to the trust account of _______________________________ (the “Escrow Agent”) for deposit into an escrow account pursuant to the terms of this agreement. The Conservancy will wire transfer the Earnest Money to the Escrow Agent within 5 business days of the Conservancy receiving from the Seller a fully executed copy of this Agreement, which has also been signed on behalf of the Escrow Agent to indicate consent to act as Escrow Agent hereunder, and the routing and account information required to wire the funds. Escrow Agent shall deposit the Earnest Money in Escrow Agent’s trust account. At closing, Escrow Agent shall deliver the Earnest Money to be applied to the Purchase Price (as defined below). If according to its terms, the transaction described in this Agreement does not close, Seller and the Conservancy shall notify Escrow Agent in writing that the Agreement has been canceled and direct the Escrow Agent to pay the Earnest Money as provided for in this Agreement.

OR

1. The Conservancy will wire transfer the Earnest Money to ______________, located at _______________ (the “Escrow Agent”) for deposit into an escrow account pursuant to an escrow agreement in the form attached as Exhibit ____ (the “Escrow Agreement”). The Conservancy will wire transfer the Earnest Money to the Escrow Agent within five (5) business days following the Conservancy’s receipt of the fully executed Agreement and the Escrow Agreement signed by the Seller and the Escrow Agent and the routing and account information required to wire the funds.

OR

1. The Conservancy will pay the Earnest Money directly to Seller within five (5) business days following receipt of the fully executed Agreement and Seller’s Form W-9.

Choose one of the following for Section 2. Choose the first if the purchase price is fixed. Choose the second if the purchase price is per acre and the acreage will be determined by survey that has yet to be completed.

2. Purchase Price . The total purchase price for the Conservation Easement is ____________ ($________) (the “Purchase Price”). If the Conservancy purchases the Conservation Easement, then the Earnest Money will be credited against payment of the Purchase Price. The balance of the Purchase Price will be paid by check or by wire transfer at closing.

OR

2. Purchase Price. The purchase price for the Conservation Easement is ______________ ($________) per acre, plus a prorated amount for any fractional acre (the “Purchase Price”). The exact acreage of the Property subject to the Conservation Easement will be determined by a survey prepared in accordance with Section 6 below, and the total Purchase Price will be calculated based on surveyed acres. If the Conservancy purchases the Conservation Easement, then the Earnest Money will be credited against payment of the Purchase Price. The balance of the Purchase Price will be paid by check or by wire transfer at closing.

Choose one of the following for Section 3. Choose the first if there is a chance that this is a bargain sale and Seller may be claiming a tax deduction. Choose the second if a gift

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is involved, but it does not qualify for a charitable deduction or the Seller does not wish to take a charitable deduction. Choose the third if this is not a bargain sale 3. Tax Deduction Claim by Seller. The Conservancy understands that Seller, in connection

with the sale contemplated by this Agreement, may claim an income tax deduction based on an assertion that the value of the Conservation Easement is higher than the Purchase Price (sometimes known as a “bargain sale”).  Seller acknowledges that it is Seller's obligation to establish the amount of the charitable contribution involved in such sales for federal tax purposes. Seller further acknowledges that neither the Conservancy, nor any of its employees or agents, has made any representation or warranty, express or implied, concerning the tax consequences of the transaction contemplated by this Agreement, including the value and the deductibility of any intended charitable gift. Neither the Conservancy nor its employees or agents assume any liability in the event that any portion of the intended charitable gift is determined by appropriate authorities to be not deductible. Seller hereby represents and warrants that Seller has or will obtain and rely exclusively on Seller's own tax advisors for advice with respect to both the availability of a tax deduction for the charitable contribution and the requirements for appraisals and other documentation to substantiate the value of the charitable contribution deduction. Seller has received from the Conservancy the document entitled “Gifts of Lands and Waters to ______________ Conservancy - Information for Donors” and attachments and understands the conditions under which the Conservancy will sign Internal Revenue Service Form 8283 relating to donations of interests in land. Seller agrees to indemnify, defend and hold the Conservancy harmless from any loss, costs or liability resulting from any breach of the covenants, representations and warranties of Seller contained in this Section 3. The protections of this Section 3 shall survive the closing hereunder.

OR

3. No Tax Deduction Claim by Seller .  Seller acknowledges that value of the Conservation Easement may be higher than the purchase price (sometimes known as a “bargain sale”), and that Seller intends this amount as a gift to the Conservancy.  However, in connection with the transaction contemplated by this Agreement, Seller hereby represents and warrants that Seller does not intend to claim any income tax deduction at the [state or] federal level. Seller acknowledges that Seller has not relied upon any representation, express or implied, made by or on behalf of the Conservancy concerning the possible tax consequences of this transaction. The Conservancy hereby advises Seller to seek Seller’s own professional advice regarding the proposed transaction and any related tax consequences.  Seller agrees to indemnify, defend and hold the Conservancy harmless from any loss, costs or liability resulting from any breach of the covenants, representations and warranties of Seller contained in this Section 3.  The protections of this Section 3 shall survive the closing hereunder.

OR

3. No Tax Deduction Claim by Seller. In connection with the transaction contemplated by this Agreement, Seller hereby represents and warrants that Seller does not intend to claim any income tax deduction based on an assertion that the value of the Conservation Easement is higher than the Purchase Price (sometimes known as a “bargain sale”) or for any other reason. Seller acknowledges that Seller has not relied upon any representation, express or implied, made by or on behalf of the Conservancy concerning the possible tax consequences of this transaction. The Conservancy hereby advises Seller to seek Seller’s own professional advice regarding the proposed transaction and any related tax consequences. Seller agrees to indemnify, defend and

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hold the Conservancy harmless from any loss, costs or liability resulting from any breach of the covenants, representations and warranties of Seller contained in this Section 3. The protections of this Section 3 shall survive the closing hereunder.

4. Title.

Choose one of the following for Section 4.A. Choose the first if the Conservancy may object to title at any time prior to closing. Choose the second if the Seller, or local custom, requires that deadlines be imposed on the title review period.

A. Evidence; Insurance . Upon execution of the Agreement by the parties, the [Conservancy OR Seller] shall obtain a preliminary title insurance commitment for a standard owner’s policy of title insurance on the Property , along with legible and complete copies of all documents referenced in the exceptions [and a color-coded map indicating the location of all the easements referenced in the exceptions] (the “Commitment”), [If desired, select the following and insert the name of the title company in the blank: from________________] pursuant to which a policy of title insurance covering the Conservation Easement (the “Title Policy”) shall be issued at closing.

Choose one of the following sentences:

The cost of the title examination, Commitment and Title Policy shall be the responsibility of [the Conservancy OR Seller]. ORThe cost of the title examination and Commitment shall be the responsibility of Seller, and the cost of the Title Policy shall be the responsibility of the Conservancy.

OR

A. Evidence; Insurance . Upon execution of the Agreement by the parties, the [Conservancy OR Seller] shall obtain a preliminary title insurance commitment for a standard owner’s policy of title insurance on the Property, along with legible and complete copies of all documents referenced in the exceptions [ and a color-coded map indicating the location of all the easements referenced in the exceptions] (the “Commitment”) [If desired, select the following and insert the name of the title company in the blank: from________________] pursuant to which a policy of title insurance covering the Conservation Easement (the “Title Policy”) shall be issued at closing.

Choose one of the following sentences:

The cost of the title examination, Commitment and the Title Policy shall be the responsibility of [the Conservancy OR Seller]. ORThe cost of the title examination and Commitment shall be the responsibility of Seller and the cost of the Title Policy shall be the responsibility of the Conservancy.

The Conservancy shall make any objections to the condition of title to the Property, as shown in the Commitment, by providing written notice to Seller no

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later than [___ business days after the Conservancy’s receipt of the Commitment OR ___________, 20__ OR ____________________]. Any title exception(s) shown in the Commitment to which the Conservancy has not objected by such deadline shall be deemed accepted by the Conservancy, except that the Conservancy need not object to, and Seller shall eliminate or subordinate at or before Closing, all monetary exceptions including, but not limited to: all mortgages and similar liens (including, without limitation, mortgages, contracts for deed, security interests, and deeds of trust); all judgments; and all other monetary encumbrances (“Monetary Exceptions”).

Seller shall have ten (10) business days following notice from the Conservancy of any objection to title to notify the Conservancy in writing of any objection that Seller does not intend to eliminate from title. The failure of Seller to respond in writing within the time stated will be deemed an agreement by Seller to eliminate prior to the Closing Date all exceptions objected to by the Conservancy. If Seller notifies the Conservancy that Seller does not intend to eliminate an exception to which the Conservancy has objected (other than Monetary Exceptions, which Seller shall remove), the Conservancy will then have the right, exercisable by providing written notice to Seller [Select if applicable: and Escrow Agent] within ten (10) business days of its receipt of such written notice from Seller, to either: (i) refuse to accept the Property, in which case the Earnest Money shall be promptly refunded to the Conservancy and this Agreement shall terminate without further recourse to the parties; or (ii) waive, in writing, its objection to that exception and keep this Agreement in effect, in which case the exception shall be deemed acceptable to the Conservancy. The failure of the Conservancy to respond in writing within the time stated will be deemed a waiver pursuant to clause (ii) above, in which case the exception shall be deemed acceptable to the Conservancy and this Agreement will remain in effect.

If at any time following the Conservancy’s review of the Commitment, the title company issues an updated Commitment and the updated Commitment contains any new exceptions not on the previously reviewed Commitment, the Conservancy shall have________ business days following receipt of the Commitment, which must include a legible and complete copy of all documents referenced in such new exceptions, to notify Seller of the Conservancy’s objection to such exceptions. Seller shall have ten (10) business days following notice from the Conservancy of such objection to notify the Conservancy in writing if Seller does not intend to eliminate one or more of such exceptions from title. The failure of Seller to respond in writing within the time stated will be deemed an agreement by Seller to eliminate, prior to the Closing Date, the exceptions objected to by the Conservancy. If Seller notifies the Conservancy that Seller does not intend to eliminate an exception to which the Conservancy has objected, the Conservancy will then have the right, exercisable by providing written notice to Seller within ten (10) business days of its receipt of such written notice from Seller, to either: (i) terminate this Agreement by written notice to Seller [Select if applicable: and Escrow Agent], in which event the Earnest Money shall be promptly refunded to the Conservancy and this Agreement shall terminate without further recourse to the parties; or (ii) waive, in writing, its objection to that exception, in which case the exception shall be deemed accepted by the Conservancy and the Agreement shall remain in effect. The failure of the Conservancy to respond in writing within the time stated will be deemed a waiver pursuant to clause (ii) above, in which case the title exception

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shall be deemed accepted by the Conservancy and this Agreement will remain in effect.

B. No Additional Encumbrances . As of the date that this Agreement is signed by the Seller, Seller shall not further sell, lease, or encumber, directly or indirectly, any interest in the Property prior to closing without the Conservancy’s prior written consent, which may or may not be given in the Conservancy’s sole discretion.

C. Requirements . At closing, Seller will convey to the Conservancy good, insurable and marketable title to the Conservation Easement. Title to the Property shall be free and clear of all liens, encumbrances, restrictions, rights or exceptions except those [Choose one of the following phrases. Choose the first phrase if you selected the first Section 4.A above. Choose the second phrase if you selected the second Section 4.A. above: of record that have been deemed acceptable to the Conservancy in its sole discretion. OR of record that are acceptable to the Conservancy in accordance with the process set for the in Section 4.A. above.]The Property shall not be subject to any severances or reservations of oil, gas or other minerals or any oil, gas or other mineral leases, nor shall the Property be subject to a mortgage, unless those interests have been addressed to the Conservancy’s satisfaction as provided in Section 4.E. below.

D. Encroachments; Access . Without limitation, the Property shall not be considered to be in compliance with this Agreement’s title requirements unless (a) all structures and improvements, including any driveways and accessory structures, if any, are located within the boundary lines of the Property and do not encroach upon, over or under any property not within such boundary lines; (b) no building, structure, improvement or property of any kind encroaches upon, over or under the Property from other property; and (c) the Property has legal, physical, marketable and insurable access to a public road.

E. Defects . If for any reason Seller cannot deliver title at closing as required by the preceding paragraphs, the Conservancy may elect to (a) accept the Conservation Easement with title as it is, (b) refuse to accept the Conservation Easement, in which case the Earnest Money shall be promptly refunded to the Conservancy and this Agreement shall terminate without further recourse to the parties, or (c) require Seller to diligently pursue all commercially reasonable efforts to correct the problem, including bringing any necessary quiet title actions or other lawsuits. If the Property is subject to a mortgage, the Seller shall obtain and provide at closing a Subordination Agreement from the mortgage holder, in a form acceptable to the Conservancy, so that the mortgage interest in the Property will be subordinate to the Conservation Easement. [If you think you might have an issue with mineral rights, insert: If the Property is subject to any outstanding oil, gas or mineral leases, interests or reservations, the Conservancy may require Seller to diligently pursue all commercially reasonable efforts to obtain such surface waiver or non-drilling agreements from the owner(s) of the outstanding interests as the Conservancy deems necessary or appropriate to preserve the Property’s Conservation Values as described in the Conservation Easement.]

In the event Seller cannot cure a title defect by the Closing Date, then at the Conservancy’s option, the Closing Date may be extended to accommodate a cure. If, at any time, the Conservancy determines that the process or timing of such cure is unsatisfactory, then, at the Conservancy’s election, the Earnest

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Money shall be promptly refunded to the Conservancy and this Agreement shall terminate without further recourse to the parties.

5. Right of Entry and Property Inspections. The Conservancy and its duly authorized agents and invitees may enter upon the Property at reasonable times prior to closing in order to prepare the Easement Documentation Report defined and described in Section 7 below and for all other reasonable purposes related to this transaction. The Conservancy and its duly authorized agents shall also have the right to inspect the Property and any improvements on the Property and conduct physical and environmental inspections and assessments of the Property at any time prior to closing (and to update those inspections and assessments, as circumstances may require). Such inspections shall be conducted at reasonable times and in a manner that does not unreasonably interfere with Seller’s use and enjoyment of the Property. Based upon the results of said inspections and assessments, the Conservancy may, in its sole discretion at any time prior to closing, elect to (a) refuse to accept the Conservation Easement, in which case the Earnest Money shall be promptly refunded to the Conservancy and this Agreement shall terminate without further recourse to the parties; (b) require the Seller to correct problems revealed by the inspections and/or assessments; or (c) pursue any other remedy available under this Agreement.

Choose one of the following for Section 6. Choose the first if a survey is desired or required. Choose the second if no survey is required.

6. Survey . The [Conservancy OR Seller] [shall OR may, in its sole discretion] have a survey of [the Property OR the portion of the Seller’s land to be excluded from the Conservation Easement] [and a complete legal description of the Property] prepared prior to closing. The surveyor shall determine the acreage of the surveyed land to the nearest one hundredth acre and, at the election of the Conservancy, stake the boundaries of the surveyed land. The survey shall be in a form acceptable to (i) the Conservancy, (ii) the Conservancy’s title insurance company, and (iii) if applicable, the Conservancy’s funding agents. Seller and the Conservancy shall each have the right to be present during the survey. The Conservancy may record the survey. The cost of the survey shall be [paid by the Seller OR paid by the Conservancy OR split equally between the Seller and the Conservancy at closing].

OR

6. Survey. No survey is required for this transaction.

7. Easement Documentation Report . [Within _____( ) business days of Seller’s execution of this Agreement and its delivery to the Conservancy OR At least _____( ) business days prior to the Closing Date ], the Conservancy shall prepare or cause to be prepared a baseline report documenting the condition of the Property (the “Easement Documentation Report”). The Easement Documentation Report shall describe the natural, biological, and physical condition of the Property and shall include any maps, photographs and other information regarding the Property that the Conservancy may consider appropriate. Seller shall have ten (10) business days after receipt to review and approve the Easement Documentation Report as an accurate representation, as of the date thereof, of the natural, biological and physical condition of the Property and other matters relating to the Property described therein, which approval the Seller shall not unreasonably withhold. If Seller does not notify the Conservancy in writing of any requested changes or objections within such ten day period, then Seller shall be deemed to have approved the Easement Documentation Report.

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8. Conservation Easement. Within twenty (20) business days after Seller and the Conservancy approve the Easement Documentation Report, the Conservancy and Seller shall approve the final form of the Conservation Easement, which shall be substantially in the form attached to the Purchase Agreement as Exhibit B, with such changes as the Seller and the Conservancy shall agree to, based upon the Easement Documentation Report.

9. Preservation of Property and Resources; Risk of Loss . Seller agrees that the Property shall remain as it now is until closing, and that Seller bears all risk of loss to the Property prior to closing, and that Seller will prevent and refrain from any use of the Property for any purpose or in any manner that would adversely affect the Conservancy’s intended use of the Property as a natural area or similar use. Specifically, but without limitation, Seller shall make no alterations to any improvements, timber resources, other vegetation, topography, wetlands or watercourses, or other natural resources on the Property. In the event of such actions, or in the event that the condition of the Property is altered by any natural force beyond the control of Seller, the Conservancy may, without liability, in its sole discretion, (a) refuse to accept the Conservation Easement, in which case the Earnest Money shall be promptly refunded to the Conservancy and this Agreement shall terminate without further recourse to the parties, or (b) elect to accept the Conservation Easement (or a portion of the Conservation Easement), in which case there may be a mutually acceptable adjustment of the Purchase Price based on the change in circumstances, or (c) except when the Property was altered by any natural force beyond the control of Seller, require restoration of the Property to its condition at the time the Agreement was executed and, in connection with such required restoration, elect to extend the Closing Date as reasonably required in the Conservancy’s discretion, to permit such restoration to occur.

Seller shall remove all personal property not included with the sale and any rubbish and trash from the Property prior to closing.

All of Seller’s activities in connection with this Section 9, and in connection with any required corrections under Section 5 above, shall be conducted in accordance with all relevant local, state, and federal laws, and Seller shall obtain, at its sole cost and expense, any all and permits required by law to conduct such activities. Seller agrees to bear all responsibility for fines and penalties imposed for violations of any such laws or regulations and to hold the Conservancy harmless therefore.

10. Closing.

A. Date . Closing will occur [within ____ (___) business days after the Conservancy’s receipt of the fully executed Agreement OR on _________, 20__] (the “Closing Date”), or as soon thereafter as the conditions for closing set out in this Agreement have been met. Closing [Choose one and insert the name of title company or attorney as applicable: may be held in escrow through ________ OR will be held at the offices of____________________] or as otherwise agreed to by the parties.

B. Documents . At closing, Seller shall execute and deliver to the Conservancy the Conservation Easement, an acknowledgement that the Easement Documentation Report accurately describes the condition of the Property as of the date of closing, [Select for entity sellers: evidence of the Seller’s authority to convey the Conservation Easement satisfactory to the Conservancy and the title company] and such affidavits, including a non-foreign affidavit, and other

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documents as may be required by the Conservancy’s title insurance company to remove any standard title policy exceptions and to close in accordance with the terms of this Agreement. Any documents for which Seller is responsible shall be prepared at Seller’s expense and submitted to the Conservancy at least fifteen (15) business days prior to closing. [Select if new legal being prepared: The description of the Property in the Conservation Easement shall be the new legal description prepared in connection with the survey as set forth in Section 6 above.]

C. Taxes . Tailor this section to reflect local tax laws. See alternative language in the separate Optional Provisions document. All taxes, assessments, and encumbrances (including agricultural transfer taxes and other rollback taxes incurred as a result of a preferential tax assessment program) that are due and payable for the Property at the time of conveyance to the Conservancy shall be satisfied of record by Seller at or before closing. After closing, the Seller shall continue to be responsible for real estate taxes assessed against the Property, as described in the Conservation Easement.

D. Other Closing Costs . Tailor this paragraph as appropriate to reflect negotiations, applicable state laws and/or practices. Seller shall pay any documentary stamp tax, real estate transfer fee or any similar charge due upon conveyance of the Conservation Easement to the Conservancy, as well as any commission due any real estate broker in connection with this transaction. Any escrow or closing fees due for the services of the closing agent shall be [paid by the Seller OR paid by the Conservancy OR split equally between the Seller and the Conservancy]. Recording fees will be paid according to local custom.

11. Seller’s Representations and Warranties . Seller warrants and represents to the Conservancy that the statements in the following subparagraphs are true and accurate as of the date upon which this Agreement was signed by the Seller, and shall be true as of the Closing Date. All items disclosed below remain subject to the Conservancy’s review and approval in accordance with the terms of this Agreement. Seller shall indemnify, defend and hold the Conservancy harmless from any loss, costs, or liability resulting from any breach of any of said warranties or representations. These representations, warranties and indemnities shall survive closing.

A. Title to Property; Authority to Execute Documents. Seller is the sole legal and beneficial owner of the Property in fee simple. The Property is not now subject to any written or oral lease, mineral lease or agreement, government cost-share contract or other agreement or provision of law that restricts either the use of the Property or the modification or removal of improvements, license, permit, option, agreement of sale, government farm program enrollment, claim or legal proceeding except:_______________________________ __________________________________________list the exceptions in the blank OR state “none” OR state “ as specifically set forth in Exhibit _ attached to this Agreement. Seller has the full power and authority to execute this Agreement and all agreements and documents referred to in this Agreement and to fully perform Seller’s agreements as described in this Agreement. All necessary third party consents and approvals to the transaction contemplated in this Agreement have been obtained and the execution of this Agreement and performance of the transaction contemplated by this Agreement do not violate any provision of any agreement or judicial order to which Seller is a party or to which Seller or the

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Property is subject. Seller does not intend to, and has no reason to, file for bankruptcy within one (1) year of closing.

B. Non-Foreign Status. Seller is not a "foreign person”, "foreign corporation", "foreign trust" or "foreign estate" as those terms are defined in Section 1445 of the Internal Revenue Code, nor is the sale of the Conservation Easement subject to any withholding requirements imposed by the Internal Revenue Code (including, but not limited to, Section 1445 of the Internal Revenue Code) or any comparable laws of the state, and the Conservancy has no obligation under any such laws to withhold any monies from the Purchase Price in accordance with the provisions of such laws in connection with the transaction contemplated hereby (or, if Conservancy is obligated to withhold from the Purchase Price under any such laws, Seller shall cooperate with the Conservancy in connection with closing to allow for withholding and compliance with such laws, as necessary). 

C. No Notices. Seller has not received any notices issued by any municipal or other public authority with regard to any work or improvements done or ordered by such authority to be done either before or after the date of this Agreement, and has no reason to believe that any such notice will be issued after the date of this Agreement. Seller shall be responsible for any public improvements, assessments, notices or orders received prior to closing.

D. No Condemnation. There are no condemnation proceedings pending with regard to any portion of the Property and Seller does not know of or have reason to know of any proposed condemnation proceedings with regard to any portion of the Property.

E. Condition of Property. Seller is not aware of any facts that would adversely affect the Conservation Values of the Property as described in the Conservation Easement.

F. Tanks and Wells. There have not been and there are not now any underground or aboveground storage tanks, septic tanks or wells located on or under the Property, or if there have been or are any such tanks or wells located on the Property their location has been identified to the Conservancy in writing, they have been properly registered with all appropriate authorities, they are in full compliance with all applicable statutes, ordinances and regulations, and they have not resulted in the release of any Hazardous Substance (as defined below) into the environment.

G. Hazardous Substances. Seller has not received any notices alleging that Hazardous Substances are on, in or under the Property, and to the best of Seller’s knowledge:

(i) There is no and has been no condition at, on, under or related to the Property presently or potentially posing a significant hazard to human health or the environment, whether or not in compliance with law;

(ii) There is no and has been no production, use, treatment, storage, transportation, or disposal of any Hazardous Substance on the Property;

(iii) There is no and has been no release or threatened release of any Hazardous Substance, pollutant or contaminant into, upon, or over the

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Property or into or upon ground or surface water at the Property or within the immediate vicinity of the Property;

(iv) There is not now and has never been any Hazardous Substance stored on the Property in underground tanks, pits, or ponds; and

(v) The Property is not subject to any “superfund” or similar lien or any claim by any government regulatory agency or third party related to the release or threatened release of any Hazardous Substance.

The term “Hazardous Substance” means any substance that is defined as a hazardous substance, hazardous material, hazardous waste, petroleum product, pollutant or contaminant under any environmental law, including but not limited to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et. seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. § 6901 et. seq., the Clean Water Act, 33 U.S.C. § 1251 et seq., the Clean Air Act, 42 U.S.C., Section 7401 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Safe Drinking Water Act, 42 U.S.C. § 300(f) et seq., and any and all regulations promulgated thereunder, or any similar federal, state or local laws, ordinances or regulations adopted under these acts.

H. Litigation. There is not now pending, nor, to Seller’s knowledge, has there been threatened any legal action, suit, or proceeding against Seller or the Property before any federal or state court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign.

12. Special Contingencies .

A. Conflict Disclosure . Seller represents, to the best of Seller’s knowledge, that the information provided by Seller on the Conservancy Disclosure Form, delivered to the Conservancy with this Agreement or within two years prior to the Agreement Expiration Date, is true and correct as of the date of this Agreement. Seller shall promptly notify the Conservancy in writing if there is any change in that information prior to closing. If the Conservancy determines, in its sole discretion, based upon information in the Disclosure Form or other information discovered prior to closing, that there is a conflict of interest and it cannot continue with the transaction contemplated by this Agreement, the Conservancy may elect to terminate this Agreement, in which case the Earnest Money shall be promptly refunded to the Conservancy and the Conservancy shall have no further obligations hereunder. In addition, in the case of an intentional material misrepresentation in the Disclosure Form, the Conservancy may, at its discretion, recover damages resulting from the termination of the Agreement.

B. Seller’s Representation and Warranties at Closing . Seller’s representations and warranties set forth in Sections 11, 12.A., and 13 of this Agreement shall be true and accurate in all material respects as of the Closing Date. If such representations and warranties are not true or are materially inconsistent as of the Closing Date, then the Seller shall be in default and the Conservancy may pursue the remedies set forth in Section 14.C. of this Agreement. Seller will deliver at closing to the Conservancy a certificate stating that each of the representations and warranties made by Seller in this Agreement are true and correct as of closing, if requested by the Conservancy.

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The following provision must be included unless deletion is approved by a Conservancy attorney and project approval has been obtained prior to execution of the agreement. Attorney to modify if all or a portion of the Earnest Money is to be refundedd to the Conservancy if corporate approval is denied.

C. Corporate Approval. The Conservancy’s obligations under this Agreement are contingent upon the proposed transaction receiving formal corporate approval in accordance with the Conservancy’s standard business practices. If such formal approval is not obtained, the Conservancy may terminate this Agreement by written notice to Seller, in which event the Earnest Money shall be retained by Seller without further recourse to the parties.

The following items 10.D.-10.G. are examples of provisions you might use in order to address issues of volatility in real estate markets, including uncertainty regarding real property values and public and private funding.

Funding Contingencies

D. Funding Approval . The Conservancy’s obligations under this Agreement are contingent upon the funding source(s) for the acquisition of the Conservation Easement approving the appraisal and any other matter relating to the Conservation Easement that is required by such funding source(s) to provide the funding. If such approval is not obtained or if the Conservancy determines that it will not obtain such approval within the timeframe needed to close on the Closing Date, then the Conservancy may, with written notice to the Seller: (i) extend the Closing Date by up to ___days and (ii) in lieu of or following such extension, terminate this Agreement, in which event the Earnest Money shall be [retained by Seller OR promptly refunded to the Conservancy].

E. Funding Availability . The Conservancy’s obligations under this Agreement are contingent upon the funding source(s) for the acquisition of the Conservation Easement delivering to the Conservancy, or depositing directly into escrow, funds in the full amount of the Purchase Price. If such funds are not so delivered or deposited, or if the Conservancy determines at any time prior to closing that these funds will not be available for delivery or deposit within the timeframe needed to close on the Closing Date, then the Conservancy may, with written notice to the Seller: (i) extend the Closing Date by up to ___ days and (ii) in lieu of or following such extension, terminate this Agreement without further recourse to the parties, in which event the Earnest Money shall be [retained by Seller OR promptly refunded to the Conservancy].

Valuation Contingencies

You might also be able establish exercise and closing dates that take into account the need for re-assessment of value, as an alternative to a valuation contingency- see guidance and related materials.

F. Value of the Conservation Easement . The Conservancy’s obligations under this Agreement are contingent upon the Purchase Price of the Conservation Easement not exceeding the value of the Conservation Easement, as determined by the Conservancy based upon appraisals, appraisal updates, and other opinions and indications of market value secured by the Conservancy. If the

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Conservancy determines, at any time prior to closing, that the Purchase Price exceeds the value, then the Conservancy may, at its election, by written notice to the Seller, [optional: either (i) require that the purchase price be reduced to the appraised value of the Conservation Easement, or (ii)] terminate this Agreement without further recourse to the parties, in which event the Earnest Money shall be [retained by Seller OR promptly refunded to the Conservancy].]

OR

F. Updated Appraisal. The Conservancy’s obligations under this Agreement are contingent upon receipt by the Conservancy of an updated appraisal, no later than ____days prior to closing, that values the Conservation Easement at no less than the Purchase Price and that addresses current market conditions to the satisfaction of the Conservancy. Should the updated appraisal commissioned by the Conservancy establish a fair market value (“Appraised Value”) below the Purchase Price, the Conservancy will disclose that value to the Seller in writing (“Notice of Value”). The Seller will have ten business days from receipt of the Notice of Value to notify the Conservancy in writing whether the Seller wishes to (a) amend this Agreement to change the purchase price to be equal to the Appraised Value as established by the updated appraisal or (b) terminate this Agreement, in which event the Earnest Money shall be promptly refunded to the Conservancy. If the Seller elects to amend this Agreement, the Seller and the Conservancy agree that other than price, all other terms of the amended Agreement will remain substantially the same, and Seller shall execute such amendment within 10 days of receipt of the amendment from the Conservancy. If the Seller receives a Notice of Value and does not elect to amend or terminate as required in this provision, the Agreement shall automatically terminate without further recourse to the parties and the Earnest Money shall be promptly refunded to the Conservancy. [optional: If the updated appraisal is not received as required in this provision or if the updated appraisal is not satisfactory to the Conservancy, the Conservancy may also elect, with written notice to the Seller, to terminate the Agreement without further recourse to the parties, in which event the Earnest Money shall be [retained by the Seller OR promptly refunded to the Conservancy].

Agency Take-out Contingency

G. Agency Approval . The Conservancy plans to transfer all or part of the Conservation Easement to ___________ (“Agency”). Prior to closing, the Conservancy shall have received all necessary approvals from the Agency to accept the Conservation Easement from the Conservancy. If the Conservancy determines at any time prior to closing that this contingency will not be met, the Conservancy may, with written notice to the Seller, terminate this Agreement without further recourse to the parties, in which event the Earnest Money shall be [retained by the Seller OR promptly refunded to the Conservancy] .

13. Counterterrorism, Anti-Money Laundering, and Economic Sanction Laws. The Seller certifies that, to the best of Seller’s knowledge, Seller and its subsidiaries, principals, and beneficial owners, if any:

A. Are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any government agency;

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B. (i) Are not included on the specially Designated Nationals and Blocked Persons lists maintained by the U.S. Treasury’s Office of Foreign Assets Control, the United Nations Security Council Consolidated List, or similar lists of proscribed entities identified as associated with terrorism, and (ii) will not engage in transactions with, or provide resources or support to, any such individuals or organizations or anyone else associated with terrorism;

C. Are not a person or entity with whom transacting is prohibited by any trade embargo, economic sanction, or other prohibition of law or regulations; and

D. Have not conducted, and will not conduct, its operations in violation of applicable Money Laundering Laws, including but not limited to, the U.S. Bank Secrecy Act and the money laundering statutes of any and all jurisdictions to which the Seller or any Seller subsidiary, principal, or beneficial owner is subject, and no action or inquiry concerning money laundering by or before any authority involving the Seller or any Seller subsidiary, principal, or beneficial owner is pending.

Should Seller become aware that Seller or any Seller subsidiary, principal, or beneficial owner is subject to any of the above conditions during the term of this Agreement, Seller must notify the Conservancy immediately.  If the Conservancy determines, in its sole discretion, that Seller or any such subsidiary, principal, or beneficial owner is subject to any of the above conditions, the Conservancy may terminate this Agreement, in which case the Earnest Money shall be promptly refunded to the Conservancy and the Conservancy shall have no further obligations hereunder. In addition, in the case of an intentional material misrepresentation, the Conservancy may, at its discretion, recover damages resulting from the termination of the Agreement.

OR

If using USAID funds, insert the following in place of the previous text and include the related Exhibit at the end of this document. Reference the exhibit in Section 14.F.

The Seller hereby affirms the statements contained in the Anti-Terrorism Certification attached hereto as Exhibit [___] .  In the event that any non-compliance with such laws is discovered before closing, the Conservancy may elect to terminate this Agreement, in which case the Earnest Money shall be refunded to the Conservancy.

14. Miscellaneous Provisions.

A. Assignment . The Conservancy may assign this Agreement at any time prior to or at closing and upon such assignment the Conservancy shall be relieved of any and all of its obligations under this Agreement. The Conservancy shall give Seller written notice of any such assignment.

B. Broker’s Commission . Each party represents to the other that it has not contracted with or used the services of any broker or finder with regard to this transaction, and each agrees to indemnify and defend the other and hold the other harmless from and against all liability, claims, demands, damages and costs of any kind arising from or connected with any broker’s or finder’s type of fee, commission or charges claimed to be due any person arising from such party’s conduct with respect to this transaction.

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OR

B. Broker’s Commission. Seller has not dealt with any other broker with regard to this transaction except for ____________________, to whom Seller shall be solely responsible to pay any commission due with respect to this transaction

C. Force Majeure . Notwithstanding anything to the contrary herein, if any party hereto shall be delayed, hindered in, or prevented from the performance of any obligation or exercise of any right hereunder by reason of a Force Majeure Event (defined below,) the time for such party to perform or to exercise a right, including exercise of this Agreement, shall be extended for the amount of time equivalent to the delay caused by such Force Majeure Event, provided such party gives prompt notice to the other party(ies) of such delay and the expected expiration thereof. The term “Force Majeure Event” shall mean any occurrence, circumstance or event not within the reasonable control of the party seeking the extension of time and such term shall include without limitation: acts of God; fire; flood; natural disaster; war or threat of war; acts or threats of terrorism; civil disorder; strikes; lockouts; governmental regulation or advisory; recognized health threats as determined by the World Health Organization, the Centers for Disease Control, or local government authority or health agencies (including but not limited to the health threats of COVID-19, H1N1, or similar infectious diseases); government action or statement of policy which limits, prohibits or curtails transportation; orders by a national, state, city, or local government or multilateral organization; and/or the curtailment or stoppage(s) of services performed by lenders, title/abstract companies, appraisers, inspectors, environmental consultants, and/or recording offices due to any of the foregoing. [Optional: If the Conservancy determines a Force Majeure Event will cause closing to occur after _____________, then the Conservancy may terminate this Agreement by written notice to Seller {Select if applicable: and Escrow Agent}, in which case the Earnest Money shall be promptly refunded to the Conservancy and this Agreement shall terminate without further recourse to the parties].

D. Default and Remedies .

(i) Default by Seller . If Seller defaults under this Agreement or one or more of the special contingencies set forth in Section 12 of this agreement fails to be satisfied, the Conservancy may either: (a) provide written notice to Seller of the Conservancy’s refusal to accept the Conservation Easement, in which case the Earnest Money shall be promptly refunded to the Conservancy and the Agreement shall terminate without further recourse to the parties, except as provided in the following sentence or (b) proceed to close the transaction as provided in this Agreement. In either case, in addition to any other remedy specifically set forth in this Agreement, the Conservancy shall have the right to enforce the provisions of this Agreement through an action for specific performance, injunctive relief, damages, contribution or any other available proceedings in law or equity. The election of any one remedy available under this Agreement shall not constitute a waiver of other available remedies.

(ii) Default by the Conservancy . If all the conditions contained in this Agreement have been satisfied, the Seller has performed all of its obligations under this Agreement and is not in default, and the Conservancy fails to close the transaction as provided in this Agreement,

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then the Earnest Money shall be retained by Seller as liquidated damages, which shall be Seller’s sole recourse at law or in equity.

Include if required by state law:

THE PARTIES HAVE AGREED THAT SELLER’S ACTUAL DAMAGES, IN THE EVENT OF A DEFAULT BY THE CONSERVANCY, WOULD BE EXTREMELY DIFFICULT OR IMPRACTICABLE TO DETERMINE. THEREFORE, BY PLACING THEIR INITIALS BELOW, THE PARTIES ACKNOWLEDGE THAT THE EARNEST MONEY HAS BEEN AGREED UPON, AFTER NEGOTIATION, AS THE PARTIES’ REASONABLE ESTIMATE OF SELLER’S DAMAGES AND AS SELLER’S EXCLUSIVE REMEDY AGAINST THE CONSERVANCY, AT LAW OR IN EQUITY, IN THE EVENT OF A DEFAULT UNDER THE TERMS OF THIS AGREEMENT SOLELY ON THE PART OF THE CONSERVANCY OR IF THE CONSERVANCY IS UNABLE OR FAILS TO PERFORM ITS OBLIGATIONS HEREUNDER AND THE CONDITIONS TO THE CLOSING SPECIFIED HEREIN HAVE BEEN SATISFIED AND SELLER HAS PERFORMED ALL OF SELLER’S COVENANTS AND OBLIGATIONS HEREUNDER AND IS NOT IN DEFAULT.

AGREED:

__________________ CONSERVANCY:

AGREED:

SELLER:

_________(Initials)

_________ (Initials)

E. Representation by Counsel . Seller acknowledges that (a) the Conservancy has advised Seller to have Seller’s own attorney review this Agreement and that the Conservancy is not acting on behalf of or advising Seller in this transaction, and (b) Seller has not relied on any information or advice provided by the Conservancy or its agents in connection with this transaction or agreement.

F. Notices . Unless otherwise provided, any notice required by this Agreement must be in writing and delivered to the address for the applicable party(ies) set forth below in at least one of the following methods: (a) in person; (b) certified or registered mail (return receipt requested, postage prepaid); (c) nationally recognized next day delivery service; or (d) electronic mail (“email”). Notice will be deemed given: (1) immediately, if delivered in person; (2) if sent by certified or registered mail, on the date deposited with the United States Postal Service; (3) if sent by next day delivery service, on the following business day; and (4) if sent by email, on the date it is transmitted, unless the transmission is completed on a non-business day or after 5:00 p.m. in the recipient’s time zone, in either of which cases it will be deemed given on the next following business day. [optional: If notice is sent by email, a duplicate notice in letter form will be sent by first class mail as soon thereafter as is practicable.]

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If to Seller: to the mailing address set forth above, and/or _____________ [insert email address]

With copy to:________________________________________________________________________________________________Email: ___________________

If to the Conservancy: to the ________ office mailing address set forth above, and/or _____________ [insert email address].

With copy to:________________, attorney ________________________________________________________________________Email: ___________________

[Include if applicable: If to Escrow Agent: ________________________________________________________________________________________________Email: ___________________]

Any party, by written notice to the other in the manner herein provided, may designate an address different from that set forth above. Notices transmitted by a party’s legal counsel on behalf of such party shall be deemed delivered by such party.

G. Exhibits . The following exhibits are attached to this agreement and incorporated into this agreement by reference:

Exhibit A – Property Description

If an escrow agreement is referenced in Section 1, add the form of the agreement as this exhibit and re-letter succeeding exhibits accordingly: Exhibit ___- Escrow Agreement

Exhibit B- Conservation Easement

If Seller has an extensive list of exceptions to the title warranties in section 11.A., you may want to list them on a separate exhibit and reference it here and in Section 11.A: Exhibit __– Exceptions to Seller’s Representations and Warranties

H. Governing Law . This Agreement and any interpretation of this agreement are governed by the laws of the State of _____________, without regard to its conflicts of law provisions.

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I. Construction of Agreement . This Agreement sets forth the entire agreement between the parties and may be modified or amended only by a written instrument signed by both parties. It is further understood and agreed that no party is relying upon any statement or representation not expressly embodied in this Agreement. This Agreement becomes effective when it has been signed by all parties, and shall be binding upon each party and the parties’ respective heirs, devisees, executors, successors and assigns. If two or more persons are named as Seller, their obligations shall be joint and several.

J. Time Periods . Any reference in this Agreement to the time for the performance of obligations or elapsed time shall mean consecutive calendar or business days, months, or years, as applicable. Unless business days are explicitly stated, any reference to days shall be construed to mean calendar days. When used in this Agreement, the term “business day” shall mean any day other than a Saturday, Sunday, recognized federal holiday or a recognized state holiday in the State of ___________________. If the time for the performance of obligations or elapsed time is measured in calendar days but the last day is not a business day, then the last date for such performance or elapsing of time shall be extended to the next occurring business day.

K. No Waiver . No delay in exercising any right or remedy shall constitute a waiver of any right or remedy, and no waiver by Seller or the Conservancy of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement.

L. Counterparts . This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but any number of which, taken together, shall be deemed to constitute one and the same instrument.

M. [Optional - can be added only if there is no intention to record the Agreement: Facsimile or Scanned Signatures. Signatures delivered by facsimile, portable document format (PDF), email, or other electronic means shall be fully binding and shall constitute originals.]

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IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement to be binding upon the parties as of the last date of signature below.

Use the following signature block if Seller is an individual:

[If required by State law:] Witness: SELLER

Print Name: Print Name:

Date:

Print Name: Print Name:

Date:

Use notary block only if required by state law or if intend to record the agreement:

STATE OF ___________________COUNTY OF _________________

On this ____ day of ____________, 20__, before me, the undersigned notary public, personally appeared _____________[and _____________], to me personally known or otherwise proved to me through satisfactory evidence of identification to be the person(s) whose name(s) [is OR are] signed on the preceding document, and acknowledged to me that [she OR he OR they] signed such document voluntarily for its stated purpose.

_______________________________Notary PublicMy Commission Expires:

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Use the following signature block if Seller is a corporation or other business entity:

SELLER: [Name of entity]

By:

Name:

Title:

Date:

Add second signature if required by state law: AND:

SELLER: [Name of entity]

By:

Name:

Title:

Date:

If required by State law:

Attest:

By:

Name:

Title:

Date:

Use notary block only if required by state law or if intend to record agreement:

STATE OF ___________________COUNTY OF _________________

On this ____ day of ____________, 20__, before me, the undersigned notary public, personally appeared _______________, ____________ [Title] [and _______________, ____________ [Title] of _______________ [a corporation OR partnership], to me personally known or otherwise proved to me through satisfactory evidence of identification to be the person(s) whose [name is OR names are] signed on the preceding document, and acknowledged to me that [she OR he OR they] signed such document voluntarily for its stated purpose on behalf of said [corporation OR partnership].

_______________________________Notary PublicMy Commission Expires:

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________________ CONSERVANCY

By:

Name:

Title:

Date:

Use notary block only if required by state law or if intend to record Agreement:

STATE OF _________________COUNTY OF _______________

On this ____ day of ____________, 20__, before me, the undersigned notary public, personally appeared _______________, ____________ [Title] of _____________ Conservancy (a corporation), to me personally known or otherwise proved to me through satisfactory evidence of identification to be the person whose name is signed on the preceding document, and acknowledged to me that [s/he] signed such document voluntarily for its stated purpose on behalf of _________________ Conservancy.

__________________________Notary PublicMy Commission Expires:

Include the following if the first alternative was chosen in section 1 and the Escrow Agent is to sign the purchase agreement.

___________________________agrees to serve as Escrow Agent for the Earnest Money as described in section 1 of the above Purchase Agreement for Conservation Easement.

______________________________[name of escrow agent]

By:___________________________

Title:__________________________

Date:__________________________

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EXHIBIT A

PROPERTY DESCRIPTION

[Insert the legal description from the Seller’s deed or other reliable source in the space below. If the legal description will be determined by survey and is not yet available, choose the second phrase and attach a map or sketch as page 2 of this Exhibit A]

A parcel of land located in the [City OR Town] of __________, County of _________, [State/Commonwealth] of ___________, containing _____ acres, more or less, and more particularly described as follows:

[Insert legal description]

OR

[All OR A part] of that property described in a deed recorded in Book ____ Page ______in the County Registry of Deeds [and also shown as Block ____Lot____ in the Assessor’s Map of the ______ of ________]. The Property is approximately shown on the [sketch OR map] attached hereto as page 2 of this Exhibit A. The exact description of the Property shall be determined through the survey process required pursuant to Section ____of this Agreement.

EXHIBIT B

CONSERVATION EASEMENT