Fill and Sign the Sample Agricultural Conservation Easement Form

1 Agricultural Land Trust When Recorded Mail To:______________________________________________________________________________Telephone: __________________________DEED OF AGRICULTURAL CONSERVATION EASEMENTTHIS DEED OF AGRICULTURAL CONSERVATION EASEMENT (the "Easement") is madeby is made by ___________________________ ("Grantor"), to___________________________, ("Grantee").WITNESS THAT:WHEREAS, Grantor is the owner in fee simple of that certain real property in ____________________ County, California, comprising County of ____________________ Assessor’s Parcel(s) No(s). ____________________, ____________________, and ____________________ and more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"); andWHEREAS, the Property possesses significant agricultural, open space and scenic values of great importance to Grantor, the people of ____________________ County and the people of the State of California; andWHEREAS, Grantor and Grantee intend that the Property be maintained in agricultural production by the maintenance of the agricultural values thereof and that the open space and scenic values of the Property be preserved by the continuation of the agricultural and ranching uses that have proven historically compatible with such values; andWHEREAS, Grantor intends, as owner of the Property, to convey to Grantee the right to preserve and protect the agricultural, and to the extent consistent with agricultural values, the open space, and scenic values of the Property in perpetuity; andWHEREAS, Grantee intends, by acceptance of the grant made hereby, forever to honor theintentions of Grantor to preserve and protect the agricultural, open space, and scenic values of the Property in perpetuity;NOW, THEREFORE, for good and valuable consideration, in consideration of the mutualcovenants, terms, conditions, and restrictions contained herein, and pursuant to the laws of the State of California including, inter-alia, sections 815-816 of the California Civil Code, Grantor does hereby voluntarily grant to Grantee an Agricultural Conservation Easement in gross in perpetuity over the Property of the nature and character and to the extent hereinafter set forth (the "Easement").1. Purpose. It is the purpose of this Easement to enable the Property to remain in 2agricultural uses (as defined in Exhibit B, section 2), by preserving and protecting in perpetuity its 1.agricultural values, character, use and utility, and by preventing any use or condition of the Property that would significantly impair or interfere with its agricultural values, character, use or utility. To the extent that the preservation of the open space and scenic values of the Property is consistent with such use, it is within the purpose of this Easement to protect those values. 2. Affirmative Rights and Interests Conveyed. To accomplish the purpose of thisEasement, the following rights and interests are conveyed to Grantee by this Easement:(a) To identify, to preserve and to protect in perpetuity the agricultural values, character,use and utility, including the agricultural productivity, vegetation, soil and water quality, and the open space and scenic values of the Property. (The agricultural values, character, use and utility, and the open space and scenic values of the Property are hereinafter referred to collectively as "the Protected Values".)(b) To enter upon, inspect, observe, and study the Property for the purposes of (i) identifying the current condition of, uses and practices thereon, and the baseline condition thereof; and (ii) monitoring the uses and practices to determine whether they are consistent with this Easement. Such entry shall be permitted upon prior notice to Grantor, and shall be made in a manner that will not unreasonably interfere with Grantor's use and quiet enjoyment of the Property. (c) To prevent any activity on or use of the Property that is inconsistent with the purposeof this Easement, and to require the restoration of such areas or features of the Property that may be damaged by any inconsistent condition, activity or use. However, it is the intention of this Easement not to limit Grantor's discretion to employ their choices of farm and ranch uses and management practices so long as those uses and practices are consistent with the purpose of this Easement.(d) Subject to Grantor's consent, to erect and maintain a sign or other appropriate markerin a prominent location on the Property, visible from a public road, bearing information indicating that the Property is protected by Grantee. The wording of the information shall be determined by Grantee, but shall clearly indicate that the Property is privately owned and not open to the public. Grantee shall be responsible for the costs of erecting and maintaining such sign or marker.3. Uses and Practices. Grantee and Grantor intend that this Easement shall confine the uses of the Property to agriculture, residential use associated with the agricultural use of the Property, and the other uses which are described herein. Examples of uses and practices which are consistent with the purpose of this Easement and which are hereby expressly permitted, are set forth in Exhibit B, attached hereto and incorporated herein by this reference. Examples of uses and practices which are inconsistent with the purpose of this Easement, and which are hereby expressly prohibited, are set forth in Exhibit C,attached hereto and incorporated herein by this reference. The uses and practices set forth in Exhibits B and C are not necessarily exhaustive recitals of consistent and inconsistent activities, respectively. They are set forth both to establish specific permitted and prohibited activities, and to provide guidance in determining the consistency of other activities with the purpose of this Easement.4. Baseline Data. In order to establish the present condition of the Protected Values, Grantee has examined the Property and prepared a report (the "Baseline Documentation 3Report") containing an inventory of the Property's relevant features and conditions, its improvements and its natural resources (the "Baseline Data"). A copy of the Baseline Documentation Report has been provided to Grantor, and another shall be placed and remain on file with Grantee. The Baseline Documentation Report has been signed by Grantor and Grantee, and thus acknowledged to represent accurately the condition of the Property at the date of the conveyance of this Easement. The parties intend that the Baseline Data shall be used by Grantee to monitor Grantor's future uses of the Property, condition thereof, and practices thereon. The parties further agree that, in the event a controversy arises with respect to the condition of the Property or a particular resource thereof, the parties shall not be foreclosed from utilizing any other relevant document, survey, or report to assist in the resolution of the controversy. Grantor and Grantee recognize that changes in economic conditions, in agricultural technologies, in accepted farm and ranch management practices, and in the situations of Grantor may result in an evolution of agricultural uses of the Property, provided such uses are consistent with this Easement. 5. Reserved Rights. Grantor reserves to itself, and to its personal representatives, heirs,successors, and assigns, all rights accruing from their ownership of the Property, including the right to engage in or permit or invite others to engage in all uses of the Property that are not prohibited herein and are not inconsistent with the purpose of this Easement. Without limiting the generality of the foregoing, the following rights are expressly reserved: (i) all right, title, and interest in and to all tributary and non-tributary water, water rights, and related interests in, on, under, or appurtenant to the Property, provided that such water rights are used on the Property in a manner consistent with the purpose of this Easement and in accordance with applicable law; and (ii) all right, title, and interest in subsurface oil, gas and minerals; provided that the manner of exploration for, and extraction of any oil, gas or minerals shall be only by a subsurface method, shall not damage, impair or endanger the Protected Values, shall be in accordance with applicable law, and shall be approved by Grantee prior to its execution.6. Mediation. If a dispute arises between the parties concerning the consistency of anyproposed use or activity with the purpose of this Easement, and Grantor agrees not to proceed with the use or activity pending resolution of the dispute, either party may refer the dispute to mediation by request made in writing upon the other. Within thirty (30) days of the receipt of such a request, the parties shall select a single trained and impartial mediator. If the parties are unable to agree on the selection of a single mediator, then the parties shall, within fifteen (15) days of receipt of the initial request, jointly apply to theAmerican Arbitration Association for the appointment of a trained and impartial mediator with relevant experience in real estate, and conservation easements. Mediation shall then proceed in accordance with the following guidelines:(a) Purpose. The purpose of the mediation is to: (i) promote discussion between theparties; (ii) assist the parties to develop and exchange pertinent information concerning issues in the dispute; and (iii) assist the parties to develop proposals which will enable them to arrive at a mutually acceptable resolution of the controversy. The mediation is not intended to result in any express or de facto modification or amendment of the covenants, terms, conditions, or restrictions of this Easement.(b) Participation. The mediator may meet with the parties and their counsel jointly or ex 4parte. The parties agree that they will participate in the mediation process in good faith and expeditiously, attending all sessions scheduled by the mediator. Representatives of the parties with settlement authority will attend mediation sessions as requested by the mediator. (c) Confidentiality. All information presented to the mediator shall be deemedconfidential and shall be disclosed by the mediator only with the consent of the parties or their respective counsel. The mediator shall not be subject to subpoena by any party. No statements made or documents prepared for mediation sessions shall be disclosed in any subsequent proceeding or construed as an admission of a party.(d) Time Period. Neither party shall be obligated to continue the mediation processbeyond a period of ninety (90) days from the date of the selection or appointment of a mediator or if the mediator concludes that there is no reasonable likelihood that continuing mediation will result in mutually agreeable resolution of the dispute.(e) Costs. The cost of the mediator shall be borne equally by Grantor and Grantee; theparties shall bear their own expenses, including attorney’s fees, individually.7. Grantee's Remedies. If Grantee determines that Grantor is in violation of the terms ofthis Easement or that a violation is threatened, Grantee shall give written notice to Grantor of such violation and demand corrective action sufficient to cure the violation and, where the violation involves injury to the Property resulting from any use, condition or activity inconsistent with the purpose of this Easement, to restore the portion of the Property so injured. If Grantor fails to cure the violation within thirty (30) days after receipt of notice thereof from Grantee, or under circumstances where the violation cannot reasonably be cured within a thirty (30) day period, fails to begin curing such violation within the thirty (30) day period, or fails to continue diligently to cure such violation until finally cured, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce the terms of this Easement, to enjoin the violation by temporary or permanent injunction, to recover any damages to which it may be entitled for violation of the terms of this Easement or injury to any Protected Values, including damages for any loss thereof, and to require the restoration of the Property to the condition that existed prior to any such injury. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the Protected Values, Grantee may pursue its remedies under this section without waiting for the period provided for cure to expire. Grantee's rights under this section apply equally in the event of either actual or threatened violations of the terms of this Easement, and Grantor agrees that 3.Grantee's remedies at law for any violation of the terms of this Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance of the terms of this Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies described in this section shall be cumulative and shall be inaddition to all remedies now or hereafter existing at law or in equity.7.1 Costs of Enforcement. Any costs incurred by Grantee in enforcing the terms of thisEasement against Grantor, including, without limitation, costs of suit and attorneys' fees, and any costs of restoration necessitated by Grantor's violation of the terms of this Easement, shall be borne by Grantor. If Grantor prevails in any action to enforce the terms 5of this Easement, Grantor's costs of suit, including, without limitation, attorneys' fees, shall be borne by Grantee.7.2 Grantee's Discretion. Any forbearance by Grantee to exercise its rights under thisEasement in the event of any breach of any term of this Easement by Grantor shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of the same or any other term of this Easement or of any of Grantee's rights under this Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver.7.3 Acts Beyond Grantor's Control. Nothing contained in this Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Property resulting from causes beyond Grantor's control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to any person or to the Property resulting from such causes.8. Costs and Taxes. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep and maintenance of the Property. Grantor shall pay any and all taxes, assessments, fees and charges levied by competent authority on the Property or on this Easement. It is intended that this Easement constitute an enforceable restriction within the meaning of Article XIII section 8 of the California Constitution and that this Easement qualify as an enforceable restriction under the provisions of California Revenue and Taxation Code section 402.1. 9. Hold Harmless. Grantor shall hold harmless, indemnify, and defend Grantee and its directors, officers, employees, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively "Indemnified Parties") from and against all liabilities, penalties costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including, without limitation, reasonable attorneys' fees, arising from or in any way connected with: (a) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, except to the extent of the adjudicated proportionate fault of any of the Indemnified Parties; and (b) the obligations specified in section 8. 9.1. Grantee Not Operator. Nothing in this Easement shall be construed as giving any right or ability to Grantee to exercise physical or managerial control of the day to day operations of the Property, of Grantor’s activities on the Property, or otherwise to become an operator with respect to the Property within the meaning of the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, or the Carpenter Presley Tanner Hazardous Substance Account Act, California Health and Safety Code sections 25300-25395, or any other federal, state, or local law or regulation making operators of property responsible for remediation of contamination.10. Access. No right of access by the general public to any portion of the Property isconveyed by this Easement.11. Development Rights. The parties acknowledge that under currently applicable zoning regulations of the County of Marin the Property is so classified that upon receipt of required government approvals the Property could be developed to a density of up to xx one-hundreths (xx) single family residential dwelling units ("the Development Rights"), and, further, that under certain circumstances the Development Rights may be transferred 6to and utilized on other property or properties. The parties agree to deal with the Development Rights as follows:(a) Grantor retains one (l) of the xxxx one-hundredths (x.xx) Development Rightsassociated with the Property. The Development Right retained by Grantor shall apply and relate to the existing residential improvements on the Property, which consists of x residences. Grantor reserves the right to maintain, use, repair, and replace the existing improvements on the Property with approval of appropriate governmental agencies and in conformity with section 3 of Exhibit B and all other applicable provisions of this Easement. The Development Right retained by Grantor shall not be used to support orenable the creation of any additional residential uses or units on the Property except as expressly provided in section 3 of Exhibit B hereto.(b) The balance of the xx one-hundredth (x.xx) Development or similar rights associatedwith the Property, and any other development or similar rights that may be or become associated with the Property are hereby extinguished.(c) Neither Grantor nor Grantee shall use or receive the benefit from any increase inallowable development or similar rights associated with the Property resulting from future zoning changes or otherwise.12. Conveyance of Separate Parcels; Merger. Grantor acknowledges that the Propertycurrently consists of x separate Assessor's parcels (numbers xx-xxx-xx, xxx-xx-xx and xxx-xxx-xx) which under existing law and regulations might be sold or conveyed separately from one another as separate legal parcels. It is agreed that the sale or conveyance of parcels separate or apart from the others is inconsistent with the purpose of this Easement. Therefore, Grantor covenants and agrees:(a) Grantor will apply for and pursue to completion an application to the County of for consolidation or merger of the x parcels of the Property into one legal parcel, or pursue such other applicable legal restrictions so that neither parcel may be separately sold or conveyed from the other.(b) Whether or not the x parcels are merged, Grantor and its successors in interest willnot, without the prior written consent of Grantee, sell, alienate or convey any such parcels separately or apart from the other, and Grantor and its successors in interest will at all times treat all parcels as a single integrated economic unit of property. Upon any request to Grantee for consent to a separate sale, alienation or conveyance of either parcel, such consent may be granted, withheld or conditioned by Grantee in the exercise of its sole discretionary judgment regarding the consistency or inconsistency of the proposed transaction with the purpose of this Easement, which judgment exercised in good faith will be final and binding.13. Extinguishment. If circumstances arise in the future such as render the purpose ofthis 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 Grantee 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 section 14.14. Compensation. This Easement constitutes a real property interest immediatelyvested in Grantee. For the purpose of section 13, the parties stipulate that the Easement has a fair market value determined by multiplying (i) the fair market value of the Property by 7(ii) the ratio of the value of the Easement at the time of this grant to the value of the Property, unencumbered by the Easement, at the time of this grant. The values of the Property shall exclude any amounts attributable to improvements on the Property. For the purposes of this section, Grantor and Grantee agree that the ratio of the value of theEasement to the value of the Property unencumbered by the Easement is . (_____________). This ratio shall remain constant. 15. Condemnation. Should all or part of the Property be taken in exercise of eminentdomain by public, corporate, or other authority so as to abrogate the restrictions imposed by the Easement, Grantor and Grantee shall join in appropriate actions at the time of such taking to recover the full value of the taking and all incidental or direct damages resulting from the taking, which proceeds shall be divided in accordance with the proportionate values of Grantor's and Grantee's interests as specified in section 14, unless otherwise provided by applicable law. All expenses incurred by Grantor and Grantee in such actionshall be first paid out of the recovered proceeds.16. Assignment of Grantee's Interest. Grantee may assign its interest in this Easementonly to a "qualified organization", within the meaning of section 170(h) of the Internal Revenue Code, as amended, or any successor provision, and which is authorized to acquire and hold conservation easements under California law.17. Executory Limitation. If Grantee shall cease to exist for any reason, or to be a qualified organization under section 170(h) of the Internal Revenue Code, as amended, or to be authorized to acquire and hold conservation easements under California law, then Grantee’s rights and obligations under this Easement shall become immediately vested in the County of .18. Amendment of Easement. This Easement may be amended only with the writtenconsent of the Grantor and the Grantee. Any such amendment shall be consistent with the purposes of this Easement and with the Grantee's easement amendment policies, and shall comply with section 170(h) of the Internal Revenue Code, or any regulations promulgated in accordance with that section, and with section 815 et seq. of the Civil Code of California, or any regulations promulgated there under. No amendment shall diminish or affect the perpetual duration or the Purpose of this Easement nor the rights of the Grantee under the terms of this Easement.19. Applicable Law. All uses, practices, specific improvements, construction or otheractivities permitted under this Easement shall be in accordance with applicable law and any permits or approvals required thereby.20. General Provisions.(a) Controlling Law. The interpretation and performance of this Easement shall begoverned by the laws of the State of California.(b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed in favor of the grant to effect the purpose of this Easement and the policy and purpose of the California Conservation Easement Act of 1979, as amended. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of this Easement that would render the provision valid shall be favored over any interpretation that would render it invalid.(c) Severability. If any provision of this Easement, or the application thereof to any 8person or circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby.(d) Entire Agreement. This instrument sets forth the entire agreement of the parties withrespect to the Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Easement, all of which are merged herein.(e) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion ofGrantor's title in any respect.(f) Joint Obligation. The obligations imposed by this Easement upon Grantor shall bejoint and several.(g) Successors. The covenants, terms, conditions, and restrictions of this Easement shallbe binding upon, and inure to the benefit of the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall continue as a servitude running in perpetuity with the Property.(h) Termination of Rights and Obligations. A party's rights and obligations under thisEasement terminate upon transfer of the party's interest in the Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer.(i) Future Conveyance. Grantor agrees that reference to this Easement will be made inany subsequent deed or other legal instrument by means of which Grantor conveys any interest in the Property (including but not limited to a leasehold interest).(j) Not Governmental Approval. No provision of this Easement shall constitutegovernmental approval of any specific improvements, construction or other activities that may be permitted under this Easement.IN WITNESS WHEREOF, Grantor has executed this Deed of Agricultural ConservationEasement this day of , 20 .Grantor:Name on Title ReportBy:___________________________GrantorAccepted by Grantee: By:______________________________[Notarization of Grantor's and Grantee’s signatures]