Recording requested by
and when recorded mail to:
, CA
Phone:
DEED OF AGRICULTURAL CONSERVATION EASEMENT
AND AGREEMENT CONCERNING EASEMENT RIGHTS
This Grant Deed of Agricultural Conservation Easement (the “Conservation Easement” or
“Easement”) is granted on this day of , 20 , by
(“Landowner”), to
, hereinafter collectively referred to as the “Parties”.
Recitals
A. Landowner is the sole owner in fee simple of certain real property consisting of approximately
acres, located in County, California, and described in “Exhibit A”
attached hereto (the “Property”). Landowner intends to grant a conservation easement over the
parcel(s), hereinafter referred to as the “Easement Area” (described and illustrated on the map
attached as “Exhibit B”). The Easement Area consists of approximately acres of land,
together with any improvements located within the Easement Area.
B. is a “qualified conservation organization” as defined by the Internal Revenue
Code and is eligible to hold this Conservation Easement pursuant to Section 815.3 of the California
Civil Code. As certified by resolution of its governing body, accepts the
responsibility of monitoring and enforcing the terms of this Conservation Easement and upholding
its conservation purposes forever.
C. The property consists of [general description of property to follow].
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D. Landowner intends to convey for valuable consideration [make a charitable gift of] the Easement
Area interest conveyed by this Conservation Easement to to assure that the
agricultural productivity, open space created by working landscapes, and natural plant, [fish] and
wildlife habitat provided by the rangeland environment (referred to herein as the “Conservation
Values”, and more specifically described in Exhibit C attached hereto) will be conserved and
sustained forever as provided herein, and that uses of the land that are inconsistent with these
Conservation Values will be prevented or corrected. The parties agree that the current agricultural
use of, and improvements to, the Easement Area are consistent with the conservation purposes of
this Conservation Easement.
E. Landowner further intends, as owner of the Easement Area, to convey to the
right to preserve and protect the Conservation Values of the Property in perpetuity.
F. The grant of this Conservation Easement will further the policy purposes of the following clearly
delineated governmental conservation policies: Section 815 of the California Civil Code, in which
the California Legislature has declared: (1) that “the preservation of land in its natural, scenic,
agricultural, historical, forested, or open-space condition is among the most important
environmental assets of California”; and (2) that it is “in the public interest of this state to encourage
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the voluntary conveyance of conservation easements to qualified nonprofit organizations”; Section
51220 of the California Government Code, in which the California Legislature has declared that “in
a rapidly urbanizing society agricultural lands have a definite public value as open space, and the
preservation in agricultural production of such lands . . . constitutes an important physical, social,
esthetic and economic asset to existing or pending urban or metropolitan developments; and The
County General Plan, as amended in , which includes as
one of its goals to protect all viable farmlands designated as prime, of statewide importance,
unique, or of local importance from conversion to and encroachment of non-agricultural uses.
[Note: This recital must be confirmed in each transaction.]
G. All holders of liens or other encumbrances upon, and mineral rights on or beneath the Easement
Area, have agreed to subordinate their interests in the Easement Area to this Conservation
Easement and to refrain forever from any action that would be inconsistent with its conservation
purposes [except any encumbrances specifically agreed to in advance and listed in “Exhibit D”].
H. The current physical and biological conditions of the resources of the Easement Area, as well as
its current uses and state of improvement, are described in a “Baseline Conditions Report”
(portions of which are attached as “Exhibit E”), prepared by the with the
cooperation of the Landowner, consisting of maps, photographs, and other documents, and
acknowledged by both to be complete and accurate as of the date of this Conservation Easement.
Both Landowner and have copies of this report. It will be used by
to assist in its monitoring and enforcement of Landowner’s compliance with the
Easement. This report, however, is not intended to preclude the use of other evidence to establish
the baseline condition of the Easement Area if there is a controversy over some aspect of that
condition.
I. The Parties intend that the conservation purposes of this Easement be achieved through
continued ranching and grazing activities to sustain and protect the agricultural value of the
Property, the open space value created by the working landscape, and the natural plant [fish] and
wildlife habitat provided by rangeland environment of the Property. The Parties recognize,
however, that additional agricultural uses of the Easement Area may become reasonably
necessary to support the economic viability of commercial ranching use of the Easement Area and
accordingly provide herein for such additional uses.
J. recognizes that the Conservation Values associated with the physical
environment of the Easement Area exist because of the past stewardship of the landowner(s) and
depend on the future good stewardship decisions of the Landowner and its successors. Landowner
is entrusted with those future management decisions. Maintaining the natural plant [fish] and
wildlife habitat provided by the rangeland environment shall not prevent changes in the agricultural
uses of the land, including intensification and vegetation management, provided that such changes
do not significantly impair the Conservation Values of this Conservation Easement.
is entrusted with determining that the Conservation Values have been protected.
Deed and Agreement In consideration of the recitals set forth above, and in consideration of their
mutual promises and covenants, Landowner hereby grants and conveys to the ,
its successors and assigns, and hereby accepts, a perpetual “conservation
easement” as defined by Section 815.1 of the Conservation Easement Act of 1979 (California Civil
Code, Section 815 et seq.), of the nature and character described in this Conservation Easement.
1. Purposes. The purposes of this Conservation Easement are to identify, preserve and protect
forever the agricultural productivity, open space created by working landscapes, and natural plant,
[fish] and wildlife habitat provided by the rangeland environment (“Easement Purposes”). The
parties intend that the Easement Purposes be achieved through continued ranching and grazing
uses, as well as other agricultural uses, of the Easement Area as herein provided.
2. Prohibited Acts. Landowner promises that it will not perform, or knowingly allow others to
perform, any act or use on or affecting the Easement Area described above in conflict with the
covenants set out in this Conservation Easement. Landowner authorizes to
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enforce these covenants. However, unless otherwise specified below, nothing in this Conservation
Easement shall require Landowner to take any action to restore the condition of the Easement
Area after any Act of God or other event over which Landowner has no control. Landowner
understands that nothing in this Conservation Easement relieves it of any obligation or restriction
on the use of the Easement Area imposed by law.
3. Construction of Buildings, Facilities and Other Structures. The construction or reconstruction of
any building, facility or structure of any type, except those existing on the date of this Conservation
Easement is prohibited except in accordance with paragraphs 3 (a) through (e) and 11 below.
(a) Fences. Existing fences may be repaired and replaced, at their existing locations on the
Easement Area, for purposes of reasonable and customary management of livestock and wildlife,
without further permission from . New fences at new locations may be constructed
for such purposes without further permission from ; provide d, that any new fence
shall be sited and designed to protect the Conservation Values of the Easement Area, including but
not limited to wildlife corridors.
(b) Agricultural Structures and Improvements. New buildings or other structures and improvements
to be used solely for agricultural purposes, including the processing or sale of farm products
predominantly grown or raised on the Easement Area, but not including a dwelling, may be built on
the Easement Area only with the advance written permission of the , which
permission shall be conditioned upon Landowner’s showing that the proposed structure shall be
designed, located and constructed so as not substantially to interfere with, impair or otherwise
burden the Conservation Values. Existing structures on the Easement Area may be repaired,
reasonably enlarged and replaced at their current location without further permission of the
, provided that such repair, enlargement, or replacement does not substantially
interfere with, impair or otherwise burden the Conservation Values.
(c) Residential Dwellings. All existing single family residential dwellings and appurtenant structures
may be repaired, reasonably enlarged and replaced at their current location without further
permission from . No additional dwellings may be constructed on the Easement
Area. If a Building Envelope has been designated in “Exhibit B,” additional appurtenances may be
constructed within that Building Envelope without further permission from ;
provide d, that any new appurtenance shall be designed, located and constructed so as not
substantially to interfere with, impair or otherwise burden the Conservation Values.
(d) Signs. No billboards shall be erected on the Easement Area. Signs denoting the names and
addresses of residents on the Easement Area, denoting allowable business uses, or describing
other permitted activities on the Easement Area, identifying the Easement and its participants, or to
post the property to control unauthorized entry or use, are permitted, insofar as such signs do not
significantly impair the Conservation Values of the Easement Area. may install
and maintain, at ’s sole cost and expense, signage on the Easement Area in order
to indicate the participation of and of any of ’s public or private
funding sources in the acquisition and maintenance of the Conservation Easement; provided,
however, that the size, location, number, text and design of the signage shall be subject to the
approval of Landowner, which approval shall not be unreasonably withheld, conditioned or delayed;
provided further, however, that, if the State of California, acting by and through the Department of
Fish and Game, Wildlife Conservation Board (“DFG-WCB”) is one of ’s funding
sources, Landowner hereby agrees that any logo requested by DFG-WCB to be part of such
signage shall be acceptable to Landowner.
(e) Farm Labor and Tenant Housing. All existing dwellings or structures used to house farm tenants
and employees may be repaired, reasonably enlarged and replaced at their current location without
further permission of the ; provided, that Landowner shall design, locate and
construct such structures so as not substantially to interfere with, impair or otherwise burden the
Conservation Values. New single or multifamily dwellings or structures to be used solely to house
farm tenants, employees or others engaged in agricultural production of the Easement Area may
be built on the Easement Area only with advance written permission by the , which
permission shall be conditioned upon Landowner’s showing that the proposed structure is needed
for existing or imminent agricultural operations on the Property and shall be designed, located and
constructed so as not substantially to interfere with, impair or otherwise burden the Conservation
Values..4. Subdivision. The subdivision of the Easement Area, whether by physical, legal or any
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other process, is prohibited except with the advance written permission of . Such
permission shall be subject to the ’s determination that such subdivision does not
interfere with, impair or otherwise burden the Conservation Values of the Easement Area.
The Parties recognize and agree that any division of ownership will result in an additional burden
on the monitoring and enforcement responsibilities of ; therefore, the transfer of
any parcel in less than its entirety (except for transfers solely to change the method of holding title
by the same party or parties) shall require Landowner’s payment of a transfer fee to the
’s easement stewardship fund.
The fee shall be equal to one percent (1.0 %) of the fair market value of the property transferred;
however, may reduce the fee at its sole discretion. Once a parcel has been
transferred and a fee paid, no further fee will be required unless the parcel is further subdivided.
[Optiona l : Specify the minimum parcel acreage and maximum number of parcels for any
subdivision that will authorize.]
[Optional Additional Provision: The Landowner represents and agrees that no additional, separate
legal parcels currently exist within the Property that may be recognized by a certificate of
compliance pursuant to California Government Code § 66499.35 based on previous patent or deed
conveyances, subdivisions, or surveys. Landowner will not apply for or otherwise seek recognition
of additional legal parcels with the Property based on certificates of compliance.]
5. Development Rights. Landowner hereby grants to all development rights,
except as specifically reserved to Landowner herein, that are now or hereafter allocated to, implied,
reserved or inherent in the Easement Area, and the parties agree that such rights are terminated
and extinguished, and may not be used on or transferred to any portion of the Property as it now or
hereafter may be bounded and described, or to any other property adjacent or otherwise. The
Easement Area may not be used for the purpose of calculating permissible development or lot yield
of any other property.
6. Resource Stewardship. In order to protect the Conservation Values, Landowner is encouraged
to conduct all ranching and farming operations in accordance with good management practices that
address soil and water conservation, erosion control, pest management, nutrient management, and
habitat protection.
7. Mining.
(a) Surface Mining. The mining, extraction, or removal of soil, sand, gravel, oil, natural gas, fuel,
or any other mineral substance, using any surface mining method, is prohibited. Notwithstanding
the foregoing, soil, sand, gravel or rock may be extracted without further permission from
provided that such extraction is: of material solely for use on the Property, is in
conjunction with and in furtherance of activities permitted herein, is accomplished in a manner
which is consistent with, does not interfere with, impair or otherwise burden the Conservation
Values, and does not disturb more than one acre of the Property. Notwithstanding any other
provision here of, this section 7 shall be interpreted in a manner consistent with section 170(h) of
the Internal Revenue Code, the Treasury regulations adopted pursuant thereto, and any other
successor provisions addressing the same subject.
[WARNING TO LANDOWNER: It is unclear whether the extraction or removal of sand and gravel
would jeopardize a charitable contribution deduction under Internal Revenue Code section 170.
See, e.g., Great Northern Nekoosa Corporation vs. U.S., 1998 Stand. Fed. Tax Rep. (CCH) P
49,811, 97-2 USTC ¶50,591 (1997). Your tax counsel should review this and any other tax issues
with you carefully.]
(b) Other Mining Methods. Mining using methods other than surface mining is allowed
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where consistent with the applicable provisions of paragraph 11 hereof, and where the mining and
all activities therewith will not interfere with, impair or otherwise burden the Conservation Values
and will at most have a limited localized impact on the Property.
8. Timber Harvesting. Trees on the Easement Area may only be cut to control insects and disease,
to prevent personal injury and property damage, and for on-site firewood and other domestic uses,
including, construction and repair of permitted buildings and fences on the Easement Area. This
paragraph shall not apply to the removal of orchards and/or tree farming on the property for
agricultural purposes.
[Optional Additional Provision: Any timber harvesting or harvesting on the Easement Area for
purposes other than those described above shall be conducted as allowed by law, on a
Sustainable Yield Basis as that term is defined by the California Department of Forestry, and
pursuant to a plan approved as required by law.]
9. Paving and Road Construction. Existing paved roads may be maintained, repaved, and rebuilt
on the original alignment at Landowner’s discretion without further permission from
. Roads existing at the effective date of this Easement or future roads approved by
to residential buildings permitted by this Easement may be paved at Landowner’s
discretion without the further permission from . No other portion of the Easement
Area presently unpaved shall be paved, nor shall any road, for access or other purposes be
constructed without permission of except for roads subject to permits for
development allowed by this Easement where improvement is required by the county.
shall not give such permission unless Landowner demonstrates to
that the proposed paving, grading, or covering of soil, or the location of any such
road, is necessary to meet governmental regulations, or otherwise will not substantially diminish or
impair the Conservation Values. Unpaved existing roads may be relocated as unpaved roads as
required by agricultural operations, provided that abandoned roads will be returned to agriculture or
a natural condition. For purposes of this paragraph, “pave”, “paved”, or “paving” shall include
covering of the soil surface with concrete, asphalt, gravel, or material other than soil, provided, that
in order to make roads passable the Landowner may apply to existing or future roads on the
Property a reasonable amount of gravel .
10. Agricultural Intensification. Certain changes in agricultural operations, including intensification,
within areas identified on “Exhibit B” as open rangeland or farmland, are not considered to impair
the Conservation Values. Conversion of land farmed within twenty years preceding the date of this
Conservation Easement to other agricultural uses (including intensification) is permitted. Additional
areas shall not be converted to intensified farming uses, except where, in the sole determination of
the , such intensification will not substantially interfere with, impair or otherwise
burden the Conservation Values. No such conversion such exceed ten percent (10%) of the open
rangeland identified in the Baseline Conditions Report; nor shall it occur within one hundred (100)
feet of any blue line stream (as shown on the U.S. Geological Survey 7.5 minute quadrangle map
that includes the Property), vernal pools or other sensitive habitat.
11. Trash. The dumping or accumulation of any kind of trash, refuse or derelict equipment on the
Easement Area is prohibited. However, this shall not be interpreted to prevent the storage or
accumulation of agricultural products and byproducts on the Easement Area, provided that such
storage or accumulation is done in accordance with all applicable laws and regulations and in a
manner so as to avoid any impairment of the Conservation Values.
12. Industrial, Recreational and Non Agricultural Commercial Uses. All industrial uses of the
Easement Area not expressly authorized herein are prohibited. Passive recreational uses (such as
wildlife viewing, hiking and photography), commercial hunting and fishing uses, as well as
noncommercial recreational uses and associated facilities for the personal use of residents and
guests on the Easement Area, are permitted, without further permission from ;
provide d, that no such use or associated facility shall be allowed to interfere with, impair or
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otherwise burden the Conservation Values. All other recreational and non-agricultural commercial
uses, including building and facilities associated therewith, are prohibited on the Easement Area
except with the advance written permission of . shall not give
such permission, unless the Landowner demonstrates to that the proposed use,
buildings or facilities are directly related to allowed agricultural, ecological, or recreational uses and
will not interfere with, impair or otherwise burden the Conservation Values.
13. Water Rights. Landowner shall retain, maintain and preserve the right to use all water rights
associated with the Easement Area, which Landowner represents are sufficient to sustain present
and future agricultural productivity and other Conservation Values on the Easement Area. Grantor
shall not transfer, encumber, lease, sell, or otherwise separate such water rights from the
Easement Area. [Optional Alternative Provisio n: Landowner may lease water rights from the
Easement Area for term that, including renewal periods, does not exceed _____ (___) years, but
shall not otherwise transfer, encumber, sell or otherwise separate any water rights from the
Easement Area; provide d, that Landowner shall demonstrate to ’s satisfaction that
any water rights proposed to be leased are not necessary to sustain present or future agricultural
productivity or other Conservation Values on the Easement Area. Landowner shall reimburse
for ’s costs and expenses of reviewing each lease proposal for
compliance with the foregoing provisions.]
14. Feedlot. The establishment or maintenance of a commercial feedlot is prohibited. For purposes
of this Conservation Easement, “commercial feedlot” is defined as a permanently constructed
confined area or facility which is used and maintained for purposes of engaging in the business of
feeding livestock and which is not grazed or cropped annually. For purposes of this Conservation
Easement, a “commercial feedlot” shall not include the establishment, use or maintenance of
corrals, holding pens or pastures. Nothing in this section shall prevent Landowner from confining
livestock for discretionary seasonal feeding or from leasing grazing rights for livestock owned by
others.
15. Rights Retained by Landowner. The Landowner retains the right to perform any act not
specifically prohibited or limited by this Conservation Easement. Landowner’s present uses and
compatible historic uses of the Easement Area for agriculture, including ranching, as described in
the Baseline Conditions Report, are deemed to be permitted activities consistent with the
Easement Purposes. Landowner retains all ownership rights consistent with the Easement
Purposes, including, but not limited to, the right to exclude any member of the public from
trespassing on the Easement Area (other than and its representatives)
and the right to sell or otherwise transfer the Easement Area to anyone Landowner chooses.
16. Responsibilities of Landowner and Not Affected. Other than as specified
herein, this Conservation Easement is not intended to impose any legal or other responsibility on
the , or in any way to affect any existing obligation of the Landowner as owner of
the Easement Area. Among other things, this shall apply to:
(a) Taxes. Landowner shall pay before delinquency all taxes, assessments, fees and charges of
whatever description levied on or assessed against the Easement Area or the property underlying
the Easement Area by competent authority. If the is ever required to pay any
taxes or assessments on the Easement Area or underlying property, Landowner will promptly
reimburse for the same.
(b) Upkeep and Maintenance. Landowner shall continue to be solely responsible for the upkeep
and maintenance of the Easement Area. shall have no obligation for the upkeep
or maintenance of the Easement Area.
(c) Liability and Indemnification. In view of ’s negative rights, limited access to the
land, and lack of active involvement in the day-to-day management activities on the Easement
Area, Landowner shall and hereby agrees to indemnify, protect, defend and hold ,
its officers, directors, members, employees, contractors, legal representatives, agents, successors
and assigns (collectively “ ”) harmless from and against all liabilities, costs, losses,
orders, liens, penalties, damages, expenses, or causes of action, claims, demands, or judgments,
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including without limitation reasonable attorney’s fees, arising from or in any way connected with
injury to or the death of any person, or physical damage to any property, or any other costs or
liabilities resulting from any act, omission, condition, or other matter related to or occurring on or
about the Easement Area, regardless of cause, unless solely due to the gross negligence or willful
misconduct of the . If is required to indemnify a funding entity in
order to secure funds to acquire this Conservation Easement, Landowner shall indemnify
for that indemnification to the same extent as stated immediately above.
shall be named as an additional insured on all of Landowner’s insurance policies
related to the Property.
17. Easement Area Management and Issue Resolution.
(a) Right of Entry. , its agents and representatives shall have the right to enter
annually with reasonable advance notice onto the Easement Area for purposes of monitoring
compliance with the terms of this Conservation Easement. Except when a problem has been
identified during an annual visit, additional entry shall be permissive and therefore require notice
and permission by Landowner. If the Easement Area is not accessible by public roads, Landowner
hereby grants adequate access to the Easement Area for the limited purposes of
monitoring and enforcement of the terms of this Conservation Easement. ’s
monitoring and access activities shall not interfere with normal agricultural operations on the
Property.
(b) Cooperative Resource Stewardship. believes that, in most cases, the existing
stewardship on the ranches it selects for conservation easement projects has supported and
enhanced the conservation values these ranches provide, and, consistent with that premise,
Grantor agrees with Landowner to take wherever possible a cooperative approach to monitoring
and management of the Conservation Values. The parties will conduct joint qualitative monitoring
to ensure that the Conservation Values are being protected. This monitoring will be supported
through the Baseline Conditions Report and subsequent reviews, using photographs and narrative
descriptions, among other evaluation tools. Monitoring will also consider issues such as site
potential, weather conditions, unusual economic circumstances, vegetative variety and quality and
trends in resource conditions. As a general matter, believes that a written
management plan is a useful tool for guiding resource stewardship; however, will
not require a written management plan except under the circumstances in the following
Stage 1 and Stage 2 processes.
Stage 1: If the Baseline Conditions Report, or subsequent monitoring, has identified circumstances
requiring improvement to protect the Conservation Values, Landowner, upon written notice
from , shall develop a written management plan that addresses the particular
resource management concern(s) identified by . Landowner shall be encouraged
but not required to engage the services of a Certified Rangeland Manager, District Conservationist,
or other qualified professional to assist Landowner in the development of such a management plan.
The required scope of the plan and the time allowed for its development shall depend on the nature
and severity of the identified problems. The management plan shall be subject to
’s approval. Landowner shall implement an approved plan for so long as is
necessary to resolve the particular resource management problem(s) addressed by the plan.
Rangeland
Trust shall monitor implementation of the plan, and results thereof, during its periodic monitoring,
and may require modifications of the plan as the resource conditions warrant.
Stage 2: If Landowner does not diligently act to develop a management plan required under the
preceding
Stage 1 circumstances, or if an identified problem persists, or if Landowner and
disagree regarding the resource management concern(s) identified by ,
then , at Landowner’s expense, shall engage a Certified Rangeland Manager,
District Conservationist, or other qualified professional to develop the management plan and, as
warranted, to recommend interim remedial measures for implementation pending the development
of the management plan. The management plan, and any interim remedial measures, proposed by
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such qualified professional shall be subject to ’s approval. Landowner shall
implement an approved plan for so long as is necessary to resolve the particular resource
management problem(s) addressed by the plan. shall monitor implementation of
the plan, and results thereof, during its periodic monitoring, and may require modifications
of the plan as the resource conditions warrant.
(c) Judicial Enforcement. If, in ’s judgment, substantial resource damage is
threatened or is occurring, or if finds what it considers to be a violation of any
provision of the Conservation Easement that, in ’s judgment, cannot be
satisfactorily addressed through the processes set forth in subsection 17 (b), above,
has the right to bypass those processes and to instead pursue appropriate legal
action; provided, that except when an ongoing or imminent violation could substantially diminish or
impair the Conservation Values of the Easement Area, or the parties have already met and
discussed the violation, shall give Landowner written notice of the violation and,
not later than fourteen (14) days after the delivery of such written notice, the parties shall meet to
discuss the circumstances of the violation and to attempt to agree on appropriate corrective action.
If the parties are unable to agree to corrective action, shall deliver a further
written notice to Landowner to demand particular corrective action to cure the Easement Area
resulting from any use or activity inconsistent with the Conservation Values or any of them, or the
Easement Purpose, to restore the portion of the Easement Area so injured. Landowner shall cure
the violation within thirty (30) days after receipt of such notice, or under circumstances where the
violation cannot reasonably be cured within a thirty (30) day period, shall commence curing such
violation as soon as possible within such thirty (30) day period and shall continue diligently to cure
such violation until finally cured.
(d) Expert Assistance. The opinions of any Certified Rangeland Manager, District Conservationist
or other appropriate consultant or expert engaged to assist the parties in the resolution of any claim
of injury to any Conservation Value shall be admissible in any judicial proceedings conducted with
respect to that asserted violation.
(e) Immediate Relief. Notwithstanding any of the foregoing, if at any time
determines that an ongoing or imminent violation could substantially diminish or impair any of the
Conservation Values of the Easement Area, may proceed immediately to seek an
injunction to stop it, temporarily or permanently. may also seek an injunction
requiring the Landowner to restore, or pay for the restoration of, the Easement Area to its condition
prior to the violation.
(f) Alternative and Cumulative Remedies. ’s remedies described in this section 20
shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in
equity. Furthermore, the provisions of California Civil Code Section 815, et seq., are incorporated
herein by this reference and this Conservation Easement is made subject to all of the rights and
remedies set forth therein. The prevailing party shall be entitled to recover its costs incurred in any
such enforcement effort, including reasonable attorneys’, consultants’ and experts’ fees and costs.
retains the discretion to choose the appropriate method to enforce the provisions
of this Easement, and shall not be required to exhaust the provisions of one subsection hereof in
order to be entitled to the benefits of another.
18. Forbearance No Waiver. Forbearance by the to exercise its rights under this
Conservation Easement in the event of any breach of any term of this Conservation Easement by
Landowner shall not be construed to be a waiver by the of such term or of any
subsequent breach of the same or any other term of this Conservation Easement. No delay or
omission in the exercise of any right or remedy upon any breach by Landowner shall impair such
right or remedy or be construed as a waiver.
19. Transfer of Easement. may transfer the Easement created
by this Conservation Easement to (1) any public agency authorized to hold interests in real
property as provided in Section 815.3 of the Civil Code of California; or (2) any private nonprofit
organization that, at the time of transfer, is a “qualified organization” under Section 170(h) of the
U.S. Internal Revenue Code and under Section 815.3(a) of the Civil Code of California. In selecting
an appropriate transferee entity, preference will be given to a qualified agency or organization with
an agricultural conservation purpose, which has board, staff, or consultants with practical
agricultural management experience, and which agency or organization expressly agrees to
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assume the responsibility imposed on the by this Conservation Easement. If such
agency or organization cannot be found, or is not suitable for any reason, then another qualified
agency or organization which expressly agrees to assume the responsibility imposed on the
by this Conservation Easement may be selected. Landowner shall be provided
notice of any proposed transfer, information about proposed transferee(s), and opportunity for
input. If more than one qualified agency or organization meets the foregoing criteria and are equally
capable of effecting the conservation purposes of this Conservation Easement, Landowner may
select the organization which shall be the transferee.
If ever ceases to exist or no longer qualifies under Section 170(h) of the U.S.
Internal Revenue Code, or applicable state law, a court of competent jurisdiction shall transfer this
Conservation Easement to another qualified organization having substantially similar purposes that
agrees to assume the responsibilities imposed by by this Conservation
Easement, provided that Landowner shall be provided notice of and an opportunity to participate in
the court proceedings.
20. Landowner Transfer of the Easement Area. Any time the Easement Area itself or any interest in
it is transferred by the Landowner to any third party, the Landowner shall notify the
in writing prior to the transfer of the Easement Area, and the deed of conveyance
shall expressly refer to this Conservation Easement. Failure to notify or include
the required reference to this Conservation Easement in the deed shall not affect the continuing
validity and enforceability of this Conservation Easement.
21. Amendment of Easement. This Conservation Easement may be amended only with the written
consent of and Landowner. Any such amendment shall be consistent with the
purposes of this Conservation Easement and shall comply with Section 170(h) of the U.S. Internal
Revenue Code, California Civil Code Section 815, et seq., or any regulations promulgated in
accordance with that section. Any such amendment shall also be consistent with California law
governing conservation easements.
22. No Public Dedication or Public Access. Nothing contained in this Conservation Easement shall
be deemed to be a gift or dedication of any portion of the Easement Area for use by the general
public. This instrument does not convey a general right of access to the public.
23. Landowner’s Title Warranty; No Prior Conservation Easements. Landowner represents and
warrants that Landowner has good fee simple title to the Easement Area, free from any and all
liens or encumbrances (including without limitation, any deeds of trust or mortgage) [or that any
lender has subordinated to this agreement] and hereby promises to defend the same against all
claims that may be made against it. Landowner represents and warrants that the Easement Area is
not subject to any other conservation easement. Landowner may grant any subsequent
conservation easements on the Easement Area provided that such easements do not interfere with
or reduce the Conservation Values of this easement. shall be notified at least
ninety days in advance, in writing, of any proposed conservation or other easement for the
Easement Area, which notice shall include the proposed easement.
24. Environmental Provisions.
(a) Landowner’s Environmental Warranty. Landowner warrants that Landowner has no
knowledge of a release or threatened release of hazardous substances or wastes on or that could
affect the Easement Area and, as more generally set out in paragraph 15(c) above, agrees to
indemnify, defend, protect and hold , its directors, officers, employees, agents, and
contractors, and their heirs, successors, and assigns, harmless from and against all litigation costs,
demands, penalties, damages, liabilities, claims or expenses (including reasonable attorney fees)
arising from or connected with any release of hazardous waste or violation of federal, state, or local
environmental laws as a result of or arising out of the activities of Landowner on the Property or
any breach of this Conservation Easement.
(b) Not An Owner, Operator, Or Responsible Party.
(1) Notwithstanding any other provision herein to the contrary, the parties do not intend
this Conservation Easement to be construed such that it creates in or gives the :
(i) the obligations or liability of an “owner” or “operator” as those words are defined and used in
environmental laws, as defined below, including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended (42 USC § 9601 et
seq. and hereinafter “CERCLA”);
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(ii) the obligations or liability of a person described in 42 USC § 9607(a)(3) or (4);
(iii) the obligations of a responsible person under any applicable Environmental Laws, as defined
below;
(iv) the right to investigate and remediate any Hazardous Materials, as defined below, associated
with the Property; or
(v) any control over Landowner’s ability to investigate, remove, remediate, or otherwise clean up
any Hazardous Materials associated with the Property.
(c) Assumption of Environmental Liabilities and Indemnification. From and after acquisition of the
Easement by or any of ’s successors or assigns (whether by
operation of law or otherwise), Landowner and Landowner’s successors in interest shall be solely
responsible for and agree, jointly and severally: (A) to assume all past, present and future liabilities,
whether known and unknown and whether now existing or hereafter discovered, arising out of and
related to environmental conditions of whatsoever kind or nature on, under or affecting the
Property, including, without limitation, with respect to the presence or release of Hazardous
Substances; and (B) to indemnify, protect and defend with counsel acceptable to ,
and hold and its directors, officers, employees, agents, attorneys,
representatives, successors and assigns (the “Indemnified Parties”) harmless from and against any
claims (including, without limitation, third party claims for personal injury or death, damage to
property, or diminution in the value of property), actions, administrative proceedings (including
informal proceedings), judgments, damages, punitive damages, penalties, fines, costs, liabilities
(including sums paid in settlements of claims), remedial action, compliance requirements,
enforcement and clean-up actions of any kind, interest or losses, attorneys’ fees (including any
fees and expenses incurred in enforcing this indemnity), consultant fees, and expert fees that arise
directly or indirectly from or in connection with: (i) the presence, suspected presence or Release of
any Hazardous Substance whether into the air, soil, surface water or groundwater of or at the
Property; (ii) any violation or alleged violation of Environmental Law affecting the Property, whether
occurring prior to or during Landowner’s ownership of the Property and whether caused or
permitted by Landowner or any person other than Landowner; (iii) any claim or defense by
Landowner or any third party that any Indemnified Party is liable as an “owner” or “operator” of the
Property under any Environmental Law; or (iv) any breach of the representations and warranties
set forth in sections 23 and 24(a) of this Easement.
(d) Definitions.
(1) The term “Environmental Law” shall include, but shall not be limited to, each statute named or
referred to below, and all rules and regulations there under, and any other local, state and/or
federal laws, ordinances, rules, regulations, orders and decrees, whether currently in existence or
hereafter enacted, which govern (i) the existence, cleanup and/or remedy of contamination or
pollution on property; (ii) the protection of the environment from soil, air or water contamination or
pollution, or from spilled, deposited or otherwise emplaced contamination or pollution; (iii) the
emission or discharge of Hazardous Substances into the environment; (iv) the control of Hazardous
Substances; or (v) the use, generation, transport, treatment, removal or recovery of Hazardous
Substances.
(2) The term “Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping or disposing of any Hazardous Substance into
the environment (including, without limitation, the continuing migration of Hazardous Substances
into, onto or through the soil, surface water, or groundwater, and the abandonment or discarding of
barrels, containers, and other receptacles containing any Hazardous Substance), whether caused
by, contributed to, permitted by, acquiesced to or known to Landowner or Landowner’s
predecessors or successors in interest. (3) The term “Hazardous Substance” shall mean (a) any
oil, flammable substance, explosives, radioactive materials, hazardous wastes or substances, toxic
wastes or substances or any other wastes, materials or pollutants which (i) pose a hazard to the
Property or to persons on or about the Property or (ii) cause the Property to be in violation of any
Environmental Law; (b) asbestos in any form which is or could become friable, urea formaldehyde
foam insulation, transformers or other equipment which contain dielectric fluid containing levels of
polychlorinated biphenyls, or radon gas; (c) any chemical, material or substance defined as or
included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous
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materials,” “extremely hazardous waste,” “restricted hazardous waste,” or “toxic substances” or
words of similar import under any applicable local, state or federal law or under the regulations
adopted or publications promulgated pursuant thereto, including the Comprehensive Environmental
Response, Compensation and Liability Act (“CERCLA”), 42 USC section 9601, et seq.; the
Resource Conservation and Recovery Act (“RCRA”), 42 USC section 6901, et seq.; the Hazardous
Materials Transportation Act, 49 USC section 1801, et seq.; the Federal Water Pollution Control
Act, 33 USC section 1251, et seq.; the California Hazardous Waste Control Law (“HWCL”), Cal.
Health & Safety section 25100, et seq., Hazardous Substance Account Act (“HSAA”), Cal. Health &
Safety Code section 25300, et seq., the Porter-Cologne Water Quality Control Act (the “Porter-
Cologne Act”), Cal. Water Code section 13000, et seq., the Safe Drinking Water and Toxic
Enforcement Act of 1986 (Proposition 65); Title 22 of the California Code of Regulations, Division
4, Chapter 30; (d) any other chemical, material or substance, exposure to which is prohibited,
limited or regulated by any governmental authority or may or could pose a hazard to the health and
safety of the occupants of the Property or the owners and/or occupants of property adjacent to or
surrounding the Property, or any other person coming upon the Property or adjacent property; and
(e) any other chemical, materials or substance which may or could pose a hazard to the
environment.
25. Interpretation. This instrument shall be interpreted under the laws of the State of California,
resolving any ambiguities and questions of the validity of specific provisions so as to give maximum
effect to its conservation purposes. If any provision of this Conservation Easement, or the
application thereof to any person or circumstances, is found to be invalid, the remainder of the
provisions of this Conservation Easement, or the application of such provisions 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.
26. Captions. The captions in this Conservation Easement have been inserted solely for
convenience of reference and are not a part of this Conservation Easement and shall have no
effect upon construction or interpretation.
27. Perpetual Duration. The easement created by this instrument shall be a servitude running with
the land in perpetuity. Every provision of this Conservation Easement that applies to Landowner
and shall also apply to and be binding upon their respective agents, heirs,
executors, administrators, successors and assigns.
28. 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
United States certified mail, return receipt requested, addressed as follows or such other address
as either party from time to time shall designate by written notice to the other.
To LANDOWNER:
To:
, CA
Phone:
29. Condemnation. If all or any part of the Easement Area is taken by exercise of the power of
eminent domain, or acquired by purchase in lieu of condemnation, so as to terminate this
Easement in whole or in part, Landowners and shall act jointly to recover the full
value of their respective interests in the Property so taken or purchased, and all direct or incidental
damages resulting therefrom. All expenses reasonably incurred by Landowners and
in connection with the taking or purchase shall be paid out of the amount
recovered. If only a portion of the Easement Area is subject to such exercise of eminent domain,
this Conservation Easement shall remain in effect as to all other portions of the Easement Area.
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30. 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, and the amount of the
compensation to which shall be entitled from any sale, exchange, or involuntary
conversion of all or any portion of the Property subsequent to such termination or extinguishment,
shall be determined, unless otherwise provided by California law at the time, in accordance with
Paragraph 31, Valuation. shall use any proceeds received under the
circumstances described in this paragraph in a manner consistent with its conservation purposes,
which are exemplified by this Conservation Easement.
31. Valuation. This easement constitutes a real property interest immediately vested
in . For the purpose of paragraph 30, Extinguishment, the parties stipulate that this
easement has a fair market value determined by multiplying (a) the fair market value of the
Property unencumbered by the easement (minus any increase in value attributable to
improvements made after the date of this Conservation Easement) by (b) the ratio of the value of
the Conservation Easement to the value of the Property, unencumbered by the easement;
provide d, that Landowner and agree that such ratio shall not be less than
, which is the ratio determined by an appraisal approved by the parties as of the time of
the granting of this Conservation Easement. [Note: The value of the ratio to be specified in the
preceding sentence will be based on the approved appraisal of the Conservation Easement.]
32. Laws Currently in Effect. All references in this Conservation Easement to statutes, regulations
and other laws shall be deemed to refer to those statutes, regulations and laws currently in effect,
or as amended (or any successor provision then applicable).
33. Present Uses. The term “present uses” means the uses of the Easement Area as they exist on
the effective date of this Conservation Easement.
34. Recordation. shall promptly record this instrument in the official records of the
county(ies) identified in Recital A, above, and promptly notify the Landowner through the mailing of
a conformed copy of the recorded Conservation Easement.
35. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to
the Easement Area and supersedes all prior discussions, negotiations, understandings or
agreements relating to the Easement Area, all of which are herein merged.
36. 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.
37. Attorneys’ Fees. Should proceedings be brought to enforce or interpret any of the terms of this
instrument, the prevailing party in any such proceedings shall be entitled to recover from the non-
prevailing party its costs, including reasonable attorneys’ fees.
38. Permission. Whenever permission, consent or approval (“permission”) is required pursuant to
this Conservation Easement, such permission shall be obtained in advance and in writing signed
by the party from whom permission is to be obtained. Whether permission should be granted or
denied shall be determined based upon the purposes of this Conservation Easement, and shall not
be unreasonably withheld.
39. Exhibits. The exhibits attached hereto are incorporated herein by this reference:
Exhibit A: Property Description
Exhibit B: Description and Map of Easement Area
Exhibit C: Conservation Values
Exhibit D: Permitted Encumbrances
Exhibit E: Baseline Conditions Report
40. Effective Date. This Conservation Easement is effective as of the date of the last signature
executed below, or upon recordation in the Official Records of the county(ies) identified in Recital
A, above, if any signature is inadvertently undated.
Agreed to and executed by:
LANDOWNER:
Date
By:
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Date:
[Add notary acknowledgments.]
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