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Introduction to the Vermont Land Trust Trail Easement The attached trail easement is designed to accommodate many types of trails, trail uses and address many potential resource impacts. At first glance this trail easement may appear long; however, in order to protect the long-term interests of both the landowner and the trail group, brevity must be sacrificed. In creating this trail easement VLT reviewed many other trail easements, and while we found the one- or two-page format of many of these appealing, the silence of the text regarding many issues was glaring. Issues that seem irrelevant now may become important in the future. In at least some instances this trail easement will be created for a property that is already or is currently in the process of being protected with a conservation easement, and so appropriate cross-references are included as optional language. We understand that not all uses are desired or appropriate for all trails, so this easement provides a variety of optional phrases and sections. This format necessitates editing in order to tailor the overall easement to the purposes of the trail and the physical attributes of the land, that must be described in Section I "Purposes". Each easement, therefore, must be tailored by the organization involved to suit the trail and the property with which that organization is working. The attached trail easement is only a sample and should not be used without a clear understanding of the effect of the document or without review by legal counsel. GRANT OF TRAIL EASEMENT KNOW ALL PERSONS BY THESE PRESENTS that __________________ and _____________, both of ___________, Vermont, on behalf of their heirs, executors, administrators, successors and assigns (hereinafter "Owners"), pursuant to the authority granted in Title 10 V.S.A. Chapter 155 and in consideration of the payment of Ten Dollars and other valuable consideration paid to its full satisfaction, do freely give, grant, sell, convey and confirm unto ________________, a non-profit corporation organized under the laws of the State of Vermont with offices in ___________, Vermont (hereinafter "Holder") forever, a perpetual, non-exclusive, and assignable easement for a right-of-way all as more particularly set forth below, over a certain parcel of land located in the Town of _____________, Vermont (hereinafter the "Property"). The Property is more particularly described in Schedule A attached hereto and incorporated herein. The location of the right-of-way easement conveyed hereby is more particularly described in Schedule B attached hereto and incorporated herein (hereinafter the "Corridor"). A trail shall be located within the Corridor and may be improved as provided below (hereinafter the "Trail"). This Easement also contains covenants on the part of Owners and the Holder to do or refrain from doing various acts as set forth below. It is hereby acknowledged that this Easement constitutes a servitude upon the land and runs with the land. Holder accepts this Easement in order to provide public access to recreational opportunities and activities throughout the Corridor. I. PURPOSES. The purposes of this Easement as set forth below in this Section I are hereinafter collectively referred to as the "Purposes of this Easement" and Owners and Holder acknowledge that the Purposes of this Easement are: The purposes of this Easement as set forth below in this Section I are hereinafter collectively referred to as the "Purposes of this Easement" and Owners and Holder acknowledge that the Purposes of this Easement are: 1. The primary purpose is to provide permanent and perpetual public, recreational use of the Corridor, and to locate the Corridor so that it provides public recreational access [ADDITIONAL EXAMPLES: "four-season public recreational use", "situated principally on the abandoned bed of the former _______________ Railroad", "of which this Easement is intended to be a part", "that has been recognized, pursuant to 10 V.S.A. §443, by the Vermont Agency of Natural Resources as a component of the Vermont Trails System" or "seasonal, pedestrian, non-motorized, wilderness-type recreation".] across the Property in a manner that enhances the outdoor experience, to establish a Trail without undue expense, and to implement these purposes while limiting the adverse impact on Owners’ [if relevant: residential use,] agricultural use and forestry use of the Property. 2. The secondary purposes are to preserve the scenic beauty and natural qualities of the Corridor, in particular (INSERT HERE ANY PARTICULAR PHYSICAL ATTRIBUTES OF NOTE), to limit erosion caused by public use of the Corridor, consistent with public recreational and other uses specifically permitted by this Easement, and to protect and maintain any private or public investment made in obtaining this Easement, in establishing the Corridor, and in constructing and managing the Trail. [OPTIONAL PROVISION: "In addition the Property is conserved by a Grant of Development Rights and Conservation Restrictions dated ______ and held by ________________"]. II. USES AND OBLIGATIONS. 1. Public Access: Holder may permit, in its sole discretion, public access to the Corridor for four-season, pedestrian or mechanized, non-motorized recreational activities, [CHOOSE FROM THE FOLLOWING LIST TO MATCH THE PURPOSES: such as walking, skiing, bicycling, in-line skating, or riding horses or other pack animals.] Except as provided below, motor vehicles are not permitted. Overnight camping and campfires are not permitted. Holder shall have the right, in its sole discretion, to restrict or limit public use of and access to the Corridor. If use of the Corridor materially interferes with Owners’ quiet enjoyment of the Property on a frequent, continuous basis, and measures taken by Holder do not, in Owners’ reasonable opinion, sufficiently abate the interference, Owners may close the Corridor for a period not to exceed two weeks to enable Holder to take corrective action. Owners shall provide written notice to Holder of such Corridor closure. 2. Corridor Location: While the location of the Corridor is generally described in Schedule B attached hereto and incorporated herein and is depicted on a map entitled ______ Public Recreation Corridor held by Holder, the precise location shall be fixed on the ground by mutual agreement of Holder and Owners, and marked by blazing, signs or otherwise along the perimeter of the Corridor by Holder. The Corridor location may be altered from time to time by mutual consent of Holder and Owners. Owners and Holder shall locate the Corridor in a manner consistent with the Purposes of this Easement. If Owners and Holder are unable to agree on the Corridor location, said matter shall be submitted for binding arbitration as provided in Section IV, below. 3. Trail Construction: Holder shall have the right, but not the obligation, at Holder's expense, to construct, manage, use, repair and maintain [OPTIONAL PROVISION: insert the words ", including paving," if this would be consistent with the Purposes] a Trail, including the right to install, maintain, repair and replace waterbars, steps and other trail surface structures, as well as bridges and/or culverts as necessary to traverse surface waters within the Corridor. Prior to initial Trail installation, Trail relocation within the Corridor, and major maintenance activity, Holder shall give at least two weeks notice to Owners by certified mail, Return Receipt Requested. The Trail shall not exceed __ feet in width within the __ foot wide Corridor. The Trail may be relocated within the Corridor at the Holder’s sole discretion after giving notice to Owners as provided above. 4. Vegetation Management: Holder shall not cut or remove any vegetation from the Property until the Corridor has been located on the ground as provided above. Holder may clear brush as required to maintain the Trail [OPTIONAL IF USED BELOW: "and the additional cleared areas required to turn grooming equipment"] and may remove dead, dying or diseased vegetation within the Corridor which poses a safety risk to Trail users after the Trail has been constructed; otherwise Holder may cut or remove additional vegetation only with the prior written consent of Owners. Holder shall not employ herbicides, pesticides, growth inhibitors or other chemicals within the Corridor without the prior written consent of Owners. Owners shall not harvest any trees in the Corridor without the prior written consent of Holder, except that Owners may remove dead, diseased or dying trees without prior permission of Holder, provided that Owners have given Holder notice of the proposed activity so that Holder can divert public use of the Trail if necessary. 5. Fencing, Barriers and Signs: Holder, or Owners with Holder's prior written consent, may erect and maintain such fencing and barriers within the Corridor as may be reasonably necessary to prevent access to the Trail by motor vehicles. Holder shall have the right to erect reasonable signs, blazing or other markings within the Corridor to inform the public of the Trail location or other Trail features. Owners shall not erect fences, barriers or signs that impede access to or use of the Trail. 6. Motor Vehicles: Holder may use motorized vehicles and equipment within the Corridor to construct, relocate, maintain, repair and patrol the Trail, and for medical emergencies. Owners and Holder shall not use or permit the use of motor vehicles within the Corridor, except as specifically provided in this Section II. [OPTIONS: "Snowmobiles may be permitted within the Corridor by mutual agreement of Holder and Owners. If permitted, then Holder shall have the right to operate snow grooming equipment within the Corridor and the right to establish and maintain a cleared zone of ___ feet within the Corridor as necessary to permit turning on and navigation of the Trail by grooming equipment." Note: the minimum distances are an 8 foot trail, within a 25 foot Corridor, allowing a total of 15 feet of clearing with a 5 foot vegetated buffer on either side]. 7. Handicapped Access: Holder may permit motor-driven wheelchairs or all terrain vehicles for the use of handicapped persons within the Corridor if consistent with the Purposes of this Easement. 8. Driveways and Other Access: Except as specifically permitted under this Easement, no rights-of-way, easements of ingress or egress, driveways, roads, utility lines or other easements shall be constructed, developed or maintained into, on, over, under, or across the Corridor, without the prior written permission of the Holder. [CHOOSE ONE DISCRETIONARY STANDARD, based on volume of trail use, physical attributes of the Corridor, trail location(rural or suburban). For an unimpaired wilderness experience, CHOOSE: "Holder may grant, condition or deny permission in its sole discretion." For a suburban location, CHOOSE: "Holder shall not unreasonably withhold or condition Holder’s permission, provided that granting permission would not materially impair the recreational use of the Corridor and is otherwise not inconsistent with the Purposes of this Easement."] 9. Buildings and other Non-Recreational Uses: Owners shall use the Corridor exclusively for recreation and open space purposes, as well as for the limited commercial purposes described below. No residential or industrial activities shall be permitted, and no building or structure shall be constructed, created, erected or moved into the Corridor, other than the Trail surface structures mentioned in Section II(2). [OPTIONAL PROVISION: "and one or more lean-tos or other open-air shelters, each not to exceed 150 square feet; provided, however, that said structures shall be erected only with the prior written consent of both Owners and Holder"]. 10. Agriculture and Forestry: Owners may mow and remove hay crops within the Corridor, but shall not engage in other agricultural activities within the Corridor without the prior written permission of Holder, who may permit certain agricultural uses that, in Holder’s sole discretion, do not materially interfere with the recreational use of the Corridor, in which event, Holder and Owners shall agree upon reasonable locations for agricultural and forestry equipment to cross the Corridor so that agricultural, forestry and other open space uses of the Property, exclusive of the Corridor, can be conducted in the customary manner. Owners may cross or use the Corridor for the purpose of transporting timber and other wood products, and agricultural products from adjacent lands to a public road, provided that: (a) there is no reasonable alternative access outside the Corridor to transport the products; (b) Owners provide not fewer than thirty (30) days written notice to Holder prior to the commencement of the use of the Corridor for such purposes; (c) such use is limited to a period of __ days annually, unless extended by mutual agreement of the parties; (d) Owners use reasonable means to limit damage to the Trail caused by the transportation of timber and agricultural products; (e) Owners employ sufficient signs to warn Trail users of the presence of machinery associated with transporting timber and agricultural products during times of such activity; (f) no equipment, materials, or timber or agricultural products are stored, parked, or piled on the Corridor; (g) Owners establish a practical temporary alternative trail outside the Corridor for the duration of the operation; [OPTIONAL PROVISION: in the event that Owners must retain the right to temporarily close the Corridor for the frequent, safe transportation of timber products produced during a timber harvest, then items e, f, and g should be deleted, and should be replaced with the clause: "(e) Owners may close the Corridor to public access for a period not to exceed __ days annually in order to allow the safe transportation of timber and other wood products on the Corridor, and must employ clear and sufficient signs stating that the Trail is closed, the reason for such closure and the scheduled date of its reopening."]; and (h) Owners restore the Trail to its original condition within __ days of completion of the such uses. 11. Excavation, Mining and Trash: Except as provided in Section II(3), there shall be no disturbance of the surface of the Property, including but not limited to filling, excavation, removal of topsoil, sand, gravel, rocks or minerals, or change of the topography of the Corridor in any manner. In no case shall surface mining of subsurface oil, gas, or other minerals be permitted. Further, there shall be no placement, collection, or storage of trash, human waste, ashes, chemicals, hazardous or toxic substances, or any other unsightly or offensive material within the Corridor. 12. Liability: Owners may, in Owners’ discretion, close the Corridor to public use in the event the landowner liability protection afforded by 10 V.S.A. §5212 [if "Vermont Trail System", add 10 V.S.A. §448] is repealed or altered in a manner which materially increases, in Owners’ reasonable opinion, Owners’ potential liability to public users of the Corridor, and (a) no other statute or law affords Owners, in Owners’ reasonable opinion, liability protection which is substantially similar to that now afforded by 10 V.S.A. §5212 [and 448]; and (b) no Holder or Manager elects to provide reasonable insurance coverage or otherwise agrees to hold Owners harmless against potential liability to public users of the Corridor. 13. Miscellaneous: No use shall be made of the Corridor, and no activity shall be permitted in the Corridor which, in the reasonable opinion of Holder, is or may possess the potential to become inconsistent with the Purposes of this Easement. III. MANAGER AND MANAGEMENT PLAN. Holder may assign its rights and obligations under this instrument with regard to construction re-location and management of the Trail to an individual or entity (the "Manager"), first provided that Manager (1) is qualified and has the capacity to perform the Trail management functions of Holder; (2) Manager undertakes in writing to fulfill the management obligations of the Holder; and (3) Holder first provides written notice to Owners of the name, address and other means of contacting Manager. Manager shall prepare a Management Plan for the Trail, to provide direction and guidance to Trail users, to Owners and Holder regarding Trail construction, use, maintenance, and problem solving. The Management Plan shall be consistent with and shall not replace this Easement. The Management Plan shall be reviewed by Holder and Owner, in order to ensure consistency with this Easement. If Holder does not assign its rights to a Manager, all references to Manager shall mean Holder. IV. COMPLIANCE WITH EASEMENT AND BINDING ARBITRATION. Owners and Holder shall take reasonable steps to periodically inspect the Corridor to assure compliance with this Easement. In the event that Owners or Holder becomes aware of an event or circumstance of non-compliance with this Easement, that party shall give notice to the other of such event or circumstance of non-compliance via certified mail, return receipt requested, and demand corrective action sufficient to abate such event or circumstance of non-compliance and restore the Corridor to its previous condition. Any event or circumstance of non-compliance with this Easement not corrected voluntarily shall be submitted to binding arbitration. The arbitrator's authority shall include the right to determine whether a violation of this Easement by either Owners or Holder has or continues to occur, and what corrective action is appropriate. Further, the arbitrator's authority shall include the right to determine whether public use of the Corridor materially interferes with Owners’ quiet enjoyment of the Property on a frequent basis, whether Holder’s corrective action is sufficient, and what additional corrective action should be implemented to achieve the objectives of permitting reasonable public recreational access without materially interfering with Owners’ quiet enjoyment of the Property. The arbitrator’s authority shall include the right to temporarily close the Corridor to public use but shall not include the right to permanently close the Corridor. The arbitrator shall be selected by the parties or by the American Arbitration Association if the parties cannot agree on an arbitrator. The costs of arbitration shall be shared equally by the parties, unless otherwise determined by the arbitrator due to one party being unreasonable or otherwise dilatory. The decision of the arbitrator shall be binding on the parties. The parties shall select an arbitrator within two weeks of the submission of an issue to arbitration, and every reasonable effort shall be made to complete arbitration of any dispute within thirty (30) days of the selection of an arbitrator. Notwithstanding the foregoing, Owners and Holder reserve the right to bring an action in a court of competent jurisdiction to (1) secure a temporary restraining order or preliminary injunction to maintain the status quo pending the arbitration of a dispute; (2) enforce a directive issued by an arbitrator to maintain the status quo pending disposition of the arbitration proceeding; or (3) enforce a final order issued by the arbitrator. The prevailing party shall be reimbursed the reasonable costs of enforcement, including staff time, court costs and reasonable attorneys' fees, in addition to any other payments ordered by such Court. The remedies described herein are in addition to, and not in limitation of, any other remedies available to Holder at law, in equity, or through administrative proceedings. No delay or omission by Holder or Owner in the exercise of any right or remedy shall impair Holder’s or Owner’s rights or remedies or be construed as a waiver. Nothing in this Section IV shall be construed as imposing a liability upon a prior Owner of the Property or Holder of the Easement, where the event or circumstance of non-compliance shall has occurred after said prior Owner's ownership or control of the Property or said prior Holder’s rights in the Easement have terminated. V. MISCELLANEOUS PROVISIONS. 1. The Holder shall transfer this Easement only to a State agency, municipality, or qualified organization, as defined in Title 10 V.S.A. Section 6301a, in accordance with the laws of the State of Vermont and the regulations established by the Internal Revenue Service governing such transfers. 2. In the event this Easement is extinguished by eminent domain or other legal proceedings, Holder shall be entitled to any proceeds which pertain to the extinguishment of Holder's rights and interests in this Easement. 3. In any deed conveying an interest in all or part of the Corridor, Owners shall make reference to this Easement and shall indicate that this Easement is binding upon all successors in interest in the Corridor in perpetuity. Owners shall also notify the Holder of the name(s) and address(es) of Owners’ successor(s) in interest. 4. Holder shall be entitled to rerecord this Easement, or to record a notice making reference to the existence of this Easement, in the Town of ______ Land Records as may be necessary to satisfy the requirements of the Record Marketable Title Act, 27 V.S.A., Chapter 5, Subchapter 7, including 27 V.S.A. 603 and 605. 5. The term "Owners" shall include the heirs, successors and assigns of the original Owners, _______________ and __________. The term "Holder" shall include the successors and assigns of the original Holder __________________. USE #6 ONLY IF VLT IS A BACKUP HOLDER: 6. Owners hereby give, grant and convey to ______<insert name of backup holder> an executory interest so that in the event that Holder ceases to exist as a legal entity or fails to perform its obligations under this Easement or fails to locate a Corridor or construct a Trail, and no successor organization is created or assigned this Easement, then the rights, obligations and interests hereby conveyed to Holder through this Easement shall shift to and be vested in ____________. The rights, obligations and interests held by Holder shall shift to and vest in _____________ upon the recording in the Town of ________ Land Records a notice ("Notice") which has been mailed to Holder, Manager and Owner and their respective successors and assigns, if any, by certified mail, together with copies of the signed return receipts. Holder shall have a period of sixty (60) days from the date of receipt of said Notice to appoint a qualified organization as a successor. If a qualified organization is not appointed as a successor within said sixty (60) day period, the Notice shall be recorded in the Town of _________ Land Records and thereupon Holder’s rights, obligations and interests under this Easement shall shift to and be immediately vested in ______________. If ___________ (1) is no longer in existence at the time the rights, obligations and interests under this Easement would otherwise vest in it, or (2) is not qualified or authorized to hold easements as provided for in an assignment pursuant to Section ____, or (3) refuses such rights, obligations and interests or (4) fails to mail or to record the Notice or (5) fails for some other reason to be vested of the rights, obligations and interests under this Easement, then the rights, obligations and interests under this Easement shall vest in such qualified organization as a court of competent jurisdiction shall direct pursuant to the applicable law of the State of Vermont and with due regard to the requirements for an assignment pursuant to Section _____, above. 7. Invalidation of any provision hereof shall not affect any other provision of this Easement. TO HAVE AND TO HOLD said granted Easement, with all the privileges and appurtenances thereof, to the said Holder ________________, and its successors and assigns, to its own use and behoof forever, and the said Owners, ___________ and____________, for themselves and their heirs, successors and assigns, do covenant with the said Holder, its successors and assigns, that until the ensealing of these presents, they are the sole Owners of the Property, and have good right and title to convey the same in the manner aforesaid, that the Property is free from every encumbrance, except those of record, and they hereby engage to warrant and defend the same against all lawful claims whatever. IN WITNESS WHEREOF, we set our hands and seals this _____ day of _____________, 199_. Signed, sealed and delivered _______________________ ___________________________ ________________________ __________________________ STATE OF _____________ _____________ COUNTY, ss. At ___________________________, this _____ day of ______________, 19__, ____________________ and __________________ personally appeared and they acknowledged this instrument, by them sealed and subscribed, to be their free act and deed, before me, ______________________ ACKNOWLEDGMENT OF ARBITRATION We understand that Section IV of this instrument contains an agreement to arbitrate. After signing this document we understand that we will not be able to bring a lawsuit concerning any dispute that may arise which is covered by the arbitration agreement set forth in Section IV, unless it involves a question of constitutional or civil rights. Instead, we agree to submit any such dispute to an impartial arbitrator. We understand that the arbitration provisions of this instrument are limited exclusively to matters set forth in said Section IV. _____________________________ Dated:_______________ _____________________________ Dated:_______________ _____________________________ Dated:_______________ SCHEDULE A SCHEDULE B | ||
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