Bourgnew's Lands Preservation Act

Deed of Conservation Easement

and Development Rights

THIS DEED OF CONSERVATION EASEMENT AND DEVELOPMENT RIGHTS (the “Easement”) is

made by ____________ (“Grantor”), in favor of the _____________ (“Grantee”).

WITNESS THAT:

WHEREAS, Grantor is the sole owner in fee simple of certain real property in ________ County,

California, more particularly described in Exhibit A attached hereto and incorporated herein by this

reference (the “Property”); and

WHEREAS, the Property possesses floodwater conveyance and storage, wildlife habitat, open space, and

recreational values (“Conservation Values”) of great importance to Grantee, the people of ______ County

and the people of the State of California; and

WHEREAS, the Grantor desires to convey to Grantee this Deed of Conservation Easement and

Development Rights; and

WHEREAS, Grantor intends, as owner of the Property, to convey the right to assure that the Conservation

Values of the property are preserved and protected in perpetuity, subject to the terms of this Deed; and

WHEREAS, Grantee has jurisdiction over the conservation, protection and management of the

Conservation Values and is authorized to hold easements for these purposes pursuant to Civil Code

Sections 815 et. seq. and other provisions of California law;

NOW, THEREFORE, for good and valuable consideration, and in consideration of the mutual covenants,

terms, conditions, and restrictions contained herein, and pursuant to the laws of the State of California

including, inter-alia, Section 815-816 of the California Civil Code, Grantor does hereby deed and convey to

Grantee this Conservation Easement in perpetuity over the Property of the nature and character and to the

extent hereinafter set forth. Grantor also conveys to Grantee certain development rights associated with the

Property as hereinafter described.

1. Purpose. The primary purpose of this Easement is to enable the Property to remain in conservation

use for floodwater conveyance, flood management, floodwater storage, and wildlife habitat and/or

agriculture. Secondary uses include open space and recreation. This Easement will preserve and

protect in perpetuity these Conservation Values, the Property's character, use, and utility, and prevent

any use of the Property that would significantly impair or interfere with its conservation values,

character, use or utility.

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Exhibit XX

SAP Contract No. _____________

2. Affirmative Rights and Interests Conveyed. To accomplish the purpose of this Easement, the

following rights and interests are conveyed to Grantee by this Easement:

a. To identify, to preserve and to protect in perpetuity the Conservation Values, character, use and

utility, including floodplain storage capacity, soil and water quality, riparian corridor, and upland

and wetland communities. (The Conservation Values, character, use and utility 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 (1) identifying the

current uses and practices thereon and the baseline condition thereof, (2) monitoring the uses and

practices regarding the Property to determine whether they are consistent with this Easement, and

(3) assuring restoration, adaptive management, and maintenance activities do not compromise the

Protected Values. Restoration activities shall include, but not be limited to, the restoration of

riparian habitat and floodplain conditions on the north side of _______ Creek a distance of _____

feet from centerline of the stream. 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 enjoyment

of the property.

c. To prevent any activity or use of the Property that is inconsistent with the purpose of this

Easement and to require the restoration of such areas or features of the Property that may be

damaged by any inconsistent activity or use. However, it is the intention of this Easement not to

limit Grantor’s discretion to employ their choices of fuel load reduction, Conservation Value uses

and management practices so long as those uses and practices are reasonably consistent with the

purpose of this Easement. Reasonably consistent fuel load reduction means not more than 20%

any given year, subject to all fire protection requirements of the responsible fire protection

agencies.

d. To erect and maintain a sign or other appropriate marker in 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. Grantee shall be

responsible for the costs of erecting and maintaining such sign or marker.

e. The development rights referred to in Paragraph 11 below.

3. Uses and Practices. Grantee and Grantor intend that this Easement shall remain as conservation land.

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, and include, without limitation, those uses and practices which are employed in connection

with the preservation, enhancement, restoration and/or creation of Conservation Values. 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 (Exhibit D “Baseline Documentation Report”)

containing an inventory of the Property’s relevant features and condition, 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

Document Report has been signed by Grantor and Grantee, and thus acknowledged accurately to

represent 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

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 conservation technologies, in

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Exhibit XX

SAP Contract No. _____________

accepted farm and ranch management practices, and in the situation of Grantor may result in an

evolution of conservation uses of the Property, provided such uses are consistent with this Easement.

5. Grantor’s Duties. Grantor shall undertake all reasonable actions to prevent the unlawful entry and

trespass by persons whose activities may degrade or harm the Conservation Values of the Property. If

Grantor undertakes all reasonable actions to prevent the unlawful entry and trespass by persons,

Grantee will not hold Grantor or its successors in interest liable for degradation or harm to the

Conservation Values of the Property stemming from trespass behavior. In addition, Grantor shall

undertake all reasonably necessary actions to perfect Grantee’s rights under Paragraph 2 of this

Easement.

6. 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 expressly prohibited herein and

are not inconsistent with the purpose of this Easement. Without limiting the generality of the

foregoing, the following rights are expressly reserved: (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; (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, and shall not damage, impair or endanger the protected values of the Property; (iii)

recreational activities including but not limited to hunting, fishing, and dog training in accordance with

established game laws; (iv) the ability to restore, create, improve, and maintain riparian, upland, and

wetland habitat in accordance with state and federal regulations; (v) the right to develop and sell

mitigation credits in accordance with state and federal regulations, provided that the funds used to

develop such credits through restoration or creation do not come from funds obtained through state or

federal grant programs; and (vi) the right to utilize the site for grazing purposes to the extent grazing

can occur without compromising the Conservation Values.

7. Grantee’s Remedies. If Grantee determines that Grantor is in violation of the terms of this 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 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, fail to begin curing such violation within the thirty (30) day

period, or fail to continue to diligently cure such violation until finally cured, Grantee may bring an

action at law or in equity of 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 Value of the Property,

Grantee may pursue remedies under this paragraph without waiting for the period provided for cure to

expire. Grantee’s rights under this paragraph apply equally in the event of either actual or threatened

violations of the terms of this Easement, and Grantor agrees that 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 paragraph, both prohibitive and mandatory, in addition to such other

relief to which Grantee may be entitled, including specific performance of this 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 paragraph shall be cumulative and shall be in addition

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 this Easement

against Grantor, including, without limitation, costs of suit and attorneys’ fees, and any costs or

restoration necessitated by Grantor’s violation of the terms of this Easement shall be borne by

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Exhibit XX

SAP Contract No. _____________

Grantor. If Grantor prevails in any action to enforce the terms of this Easement, Grantor’s costs of

suit, including, without limitation, attorneys’ fees, shall be borne by Grantee.

7.2 Grantee’s Discretion. Enforcement of the terms of this Easement shall be at the discretion of

Grantee, and any forbearance by Grantee to exercise its rights under this Easement in the event of

any breach of any term of this Easement by Grantor shall not be deemed or construed to be a

waiver by Grantee 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 Grantors 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 condition to

prevent, abate or mitigate significant injury 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 or

Article XIII Section 8 of the Bourgnewian Constitution and that this Easement quality as an enforceable

action under the provisions of Bourgnew 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 “Grantee Indemnified Parties”) from and against all liabilities,

penalties, costs, losses, damages, expenses, causes for action, claims, demands, or judgments,

including, without limitation, reasonable attorneys’ fees, arising from or in any way connected with:

(1) 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 Grantee Indemnified

Parties; (2) the obligations specified in Paragraph 7.

10. Access. The Property is open to the public for recreational and educational uses at the discretion of the

Grantor. The Grantee shall hold harmless, indemnify, and defend Grantor and Grantee, and the

directors, officers, employees, agents and contractors and the heirs, personal representatives,

successors and assigns of each of them (collectively, “Grantor/Grantee Indemnified Parties”) from

and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims,

demands, or judgements, including, without limitation, reasonable attorneys’ fees, arising from or in

any way connected with 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, except to the extent of the adjudicated proportionate active fault of any of the

Grantor/Grantee Indemnified Parties.

11. Development Rights. The parties acknowledge that under currently applicable zoning regulation of

the County the property is so classified that upon receipt of required government approvals the

Property could have a density of one single family residential unit (the “Development Rights”). The

Grantor acknowledges that Grantee will acquire and retire all Development Rights associated with this

property. Neither Grantor nor Grantee shall utilize the retired Development Right associated with this

property. Neither Grantor nor Grantee shall receive or use the benefit from any increase in allowable

Development Rights associated with the Property resulting from future zoning changes.

12. Amendment. This Easement may be amended by Grantor and Grantee by mutual written agreement.

Any such amendment shall be consistent with the purposes of this Easement, shall not authorize

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Exhibit XX

SAP Contract No. _____________

additional dwelling units and shall not affect its perpetual duration. Any such amendment shall be

recorded in the official records of the County of _________, Country of Bourgnew.

13. Assignment of Grantee’s Interest. Grantee may assign its interest in this Easement only to a

“qualified organization,” within the meaning of section 170(h) of the Internal Revenue Code of 1954,

as amended, or any successor provision, and which is authorized to acquire and hold conservation

easements under California law, or other public entity, upon obtaining the prior written consent of

Grantor. Any assignment without such consents shall be void and of no effect. Such consents shall not

be unreasonably withheld by Grantor. If Grantee assigns its interest in this Easement, Grantee shall

require that the conservation purposes that this Easement is intended to advance be carried out.

14. Executory Limitation. In the event that Grantee assigns its interest in this Easement pursuant to

Section 14 above, and if Assignee shall cease to exist, or to be a qualified organization under section

the Bourgnewian Constitution, as amended, or to be authorized to acquire and hold

conservation easements under Bourgnew law, then Assignee's rights and obligations under this

Easement shall become immediately vested in the County.

15. General Provisions.

Controlling Law. The interpretation and performance of this Easement shall be governed by the laws

of the Bourgnewian Commonwealth.

Liberal Construction. Any general rule of construction to be contrary not withstanding, 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 Land Preservation & Conservation Act, 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.

Severability. If any provision of this Easement, or the application thereof to any person or

circumstance, is found to be invalid, the remainder of the provisions of this Easement, or the

application of such provision to persons or circumstances other than those as to which it is found to be

invalid, as the case may be, shall not be affected thereby.

Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the

Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to

the Easement, all of which are merged herein.

No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor’s title in any

respect.

Joint Obligation. The obligations imposed by this Easement upon Grantors shall be joint and several.

Successors. The covenants, terms, conditions, and restrictions of this Easement shall be 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.

Termination of Rights and Obligations. A party’s rights and obligations under this Easement 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.

Future Conveyance. Grantors agree that reference to this Deed will be made in any subsequent deed or

other legal instrument by means of which they convey an interest in the Property (including but not

limited to a leasehold interest). The failure of Grantor to perform any act required by this paragraph

shall not impair the validity of this Easement or limit its enforceability in any way.

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Exhibit XX

SAP Contract No. _____________

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Not Governmental Approval. Neither provision of this Easement nor the approval by the County of a

grant for the acquisition of this Easement shall constitute a governmental approval of any

improvements, construction or other activities which may be permitted under this Easement.

IN WITNESS WHEREOF, Grantors have executed this Deed of Easement this day of , 2005.

Grantor

Name

Title

[Notarization of Grantor’s signatures]