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CITY COUNCIL AGENDA ITEM NO. 27

Meeting Date: May 25, 2004

Subject/Title: 2004/05 Requested Budget Adjustments for the Brentwood Agricultural Land Trust (BALT).

Prepared by: BALT, Kathryn Lyddan, Executive Director

Submitted by: Mitch Oshinsky, Community Development Director

RECOMMENDATION
Approve a resolution adjusting the 2004/05 BALT budget.

PREVIOUS ACTION
On June 10, 2003, the City Council approved Resolution No. 2893 adopting the 2003/04 – 2004/05 Final Budget for the City of Brentwood, including the budget allocation to BALT.

BACKGROUND
The BALT Board has requested that this item be presented to City Council. BALT is a nonprofit corporation formed in October 2002 to preserve agricultural land, promote local agriculture and implement the City’s Agricultural Enterprise Program. BALT receives City funding through the agricultural mitigation fees collected and held by the City (see Exhibit 2 - City Finance Department Report re Agricultural Mitigation Accounts). The BALT 2003/04 budget was $121,431. BALT spent approximately $72,369 in 2003/04 (see Exhibit 3– BALT Budget). Any moneys budgeted but not spent by BALT remains in the City’s agricultural mitigation fee accounts.

REQUEST FOR BUDGET ADJUSTMENT
During the past year, BALT has successfully:
• Established policies and procedures to operate as an independent 501(c)(3) nonprofit land trust.
• Completed a model conservation easement and the other agreements necessary to implement the City’s Agricultural Enterprise Program (see Exhibit 8 and Exhibit 9).
• Begun several conservation easement transactions, two of which BALT anticipates completing within the next year (see Exhibit 10).
• Established the Agricultural Enterprise Committee to promote the economic development of local agriculture (see Exhibit 11 – Distribution List for Agricultural Enterprise Committee).
• Worked with the City, Harvest Time and the agricultural community to establish the Brentwood Farmers Market (projected to begin June 24).
• Promoted the City’s Agricultural Enterprise and TAC programs in the business and agricultural community.
• Advocated the City-initiated effort to amend the Contra Costa County General Plan to allow wineries adjacent to Brentwood.
(See Exhibit 4 – Summary of 2003/04 Accomplishments)

BALT’s efforts during the past year have created a tremendous momentum to promote Brentwood through a comprehensive branding and marketing program and to reduce regulatory impediments to local agricultural economic development. With all of the necessary documentation in place, BALT has begun to aggressively market the TAC program to both developers and agricultural property owners and is prepared to efficiently process TAC transactions. Further, BALT’s outreach efforts during the past year have yielded several farmers outside the TAC area interested in pursuing easement transactions.

In the 2004/05 fiscal year, BALT anticipates that it will
• Establish a comprehensive Brentwood branding and marketing campaign for local agricultural products.
• Work with Contra Costa County to reduce regulatory restrictions to agricultural enterprise activities such as commercial kitchens.
• Provide information about the TAC Program to all developers in the City and all property owners in the TAC area; hold informational meetings for developers and TAC property owners to promote TAC program.
• Efficiently process any TAC transactions requested by developers and property owners.
• Complete easement transactions currently in process.
• Increase promotion of the City’s conservation easement program and Agricultural Enterprise Program among agricultural property owners.
• Establish and implement an aggressive fundraising and development plan.
(See Exhibit 5 – 2004/05 Goals and Objectives).

BALT needs additional staffing and resources to take advantage of these immediate opportunities. Consequently, BALT is requesting that the City adjust the BALT 2004/05 budget to fund the following activities and purchases (See Exhibit 3 – BALT Budget for a detail of each item).
• Continue Executive Director’s increased part-time hours from 80 to 120 hours a month.
• Fund a part-time administrative assistant 80 hours a month.
• Retain the appraisers, legal counsel and other professional services necessary to complete conservation easements during the 2004/05 fiscal year.
• Obtain a consultant to seek funding for and coordinate agricultural enterprise activities, including a Brentwood branding and marketing program.
• Purchase office equipment and supplies for BALT staff.
• Obtain office space for BALT staff.
• Purchase workers compensation insurance.
• Print, copying and mail promotional and fundraising materials.
• Pay for BALT membership in Land Trust Alliance and obtain training for BALT staff and Board of Directors.

FISCAL IMPACT
BALT is requesting an adjusted allocation from the City’s Agricultural Trust Administration Fund during the 2004/05 fiscal year from $127,503 to $200,334 (see Exhibit 3 for details of the requested budget). As of April 30, 2004, Agricultural Trust Administrative Fund had a balance of $855,180. Based on the current balances in the Agricultural Trust Administration Fund, adequate funds are available in the Agricultural Trust Administration Fund to fund the requested adjustment to BALT’s allocation from the Agricultural Trust Administrative Fund.

Attachments:
Exhibit 1 Resolution
Exhibit 2 Report of Agricultural Mitigation Fee Accounts – April 2004.
Exhibit 3 BALT Budget: Actual Spending for 2003/04 and Projected Spending for 2004/05.
Exhibit 4 Summary of 2003/04 Accomplishments.
Exhibit 5 2004/05 Goals and Objectives.
Exhibit 6 2003/04 Calendar of BALT Board meetings.
Exhibit 7 BALT Strategic Plan: Mission Statement, Vision Statement and Value Statement.
Exhibit 8 Model Letter of Intent (with calendar) for TAC Property Owners.
Exhibit 9 Model Conservation Easement.
Exhibit 10 Letter of Intent re conservation easement on 3740 Balfour Road and letter from BALT to neighboring property owners.
Exhibit 11 Distribution List for Agricultural Enterprise Committee.


































RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AMENDING THE 2004/05 ALLOCATION OF AGRICULTURAL TRUST ADMINISTRATION FUNDS FOR THE BRENTWOOD AGRICULTURAL LAND TRUST

WHEREAS, on June 10, 2003, the City Council adopted Resolution No. 2893 adopting the 2003/04-2004/05 Final Budget for the City of Brentwood.

WHEREAS, the City’s budget for funding of BALT through the Agricultural Trust Administration Fund was approved as part of the 2003/04-2004/05 Final Budget for the City of Brentwood.

WHEREAS, the purpose of this BALT budget adjustment is set forth BALT’s goals for the 2004/05 and request adjustments in BALT’s allocation from the Agricultural Trust Administrative Fund necessary to accomplish BALT’s 2004/05 goals. Based on the current balances in the Agricultural Trust Administration Fund, adequate funds are available in the Agricultural Trust Administration Fund to fund the recommended adjustment to BALT’s allocation from the Agricultural Trust Administrative Fund.

WHEREAS, the BALT has requested an adjusted allocation from the City’s Agricultural Trust Administration Fund during the 244/05 fiscal year from $127,503 to $200,334.

WHEREAS, the City Council has reviewed these adjustments to BALT’s allocation from the Agricultural Trust Administration Fund.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood hereby adopts the adjustment to the BALT 2004/05 allocation from the City Agricultural Trust Administration Fund.

PASSED, APPROVED and ADOPTED by the City Council of the City of Brentwood at a regular meeting held on May 25, 2004 by the following vote:



















Brentwood Agricultural Land Trust

Budget and Actual Spending for Fiscal Year 2003/04
and
Requested Budget for Fiscal Year 04/05



TOTAL: FY 03/04 (budget) $121,431
FY 03/04 (actual) $ 72,369

FY 04/05 (requested) $200,334

Staff Salary:

FY 03/04 (budget) $62,240
FY 03/04 (actual) $51,713
FY 04/05 (requested $84,237

Annual Salary Plus Benefits
(2004/05) Annual Salary Without Benefits Benefits (1)
Executive Director $65,037 $60,237 $4,800
Administrative Secretary $19,200 $19,200
TOTAL $84, 237

Note: Assumes (i) Executive Director working 30 hours a week (current salary plus ten percent), (ii) administrative assistant working 20 hours a week ($20 an hour).

Insurance:

FY 03/04 (budget) $1,813
FY 03/04 (actual) $2,579
FY 04/05 (requested) $2,847

Note: Directors and Officers Policy: $900
Package Policy: $668
State surcharge $21
Workers’ Compensation: $1,000
10% for possible rate increases: $258

Note: Includes cost of the workers compensation insurance that was not included in the 2003/04.

Office Furniture:

FY 03/04 (budget) $2,500
FY 03/04 (actual) $0
FY 04/05 (requested) $2,500


Computer & Office Equipment:

FY 03/04 (budget) $2,540 (based on 1/25th of the City CD Department budget for these items)
FY 03/04 (actual) $748 (to City for computer and phone)
FY 04/05 (requested) $4,000

Note: Assumes purchase of additional computer and office equipment (ie telephone) for an administrative assistant.


Office Rental:

FY 04/05 (New budget item): $11,700

Note: Assumes rent of $900 a month, plus security deposit of one month rent.

Utilities:

FY 03/04 (budget) $1,520 (1/25th of the City CD Department budget for these items)
FY 03/04 (actual) $0 (City did not bill BALT this year for utilities)
FY 04/05 (requested) $1,520


Telephone:

FY 03/04 (budget) $1,800 ($150 a month)
FY 03/04 (actual) $ 60 billed by the City
FY 04/05 (requested) $1,800

Printing & Copying:

FY 03/04 (budget) $520
FY 03/04 (actual) $1,783
FY 04/05 (requested) $2,000

Note: Assumes the printing of brochures ($700), additional stationary ($325) in the 2004/05 fiscal year.


Office Supplies & Postage:

FY 03/04 (budget) $768
FY 03/04 (actual) $1,280
FY 04/05 (requested) $1,500

Training & Memberships:
FY 03/04 (budget) $3,500
FY 03/04 (actual) $875*
FY 04/05 (requested) $8,000

Note: * 2003/04 actual spending was $2739 for training but BALT received a scholarship of $1939 from East Bay Community Foundation for LTA Rally and a scholarship of $250 from Institute of Conservation Leadership for Kathryn Lyddan’s Executive Leadership Training.

FY 2004/05 assumes attendance by four BALT representatives at Land Trust Alliance Rally at $1,500 each, attendance of Executive Director at one other national conference at $1,000. BALT will seek scholarships for these events in 2004/05. The 2004/05 budget also assumes $1,000 for membership dues for regional and national land trust resource organizations. LTA membership was $325 last year but because of BALT’s increase budget in the 2003/04 year the LTA membership fees will increase to $950 next year.

Travel:

FY 03/04 (budget) $730
FY 03/04 (actual) $200
FY 04/05 (requested) $730


Easement Transactions Administration:

FY 03/04 (budget) $24,000
FY 03/04 (actual) $12,000
FY 04/05 (requested) $36,000

Note: FY 2003/04 assumes the services of Harry Pollack and Conservation Partners fifteen hours a month for four months (March through June) at $200 an hour.

FY 2004/05 assumes (i) thirty hours of legal review for two easement transactions at $200 per hour ($12,000), (ii) four appraisals at $3,500 each (BALT paying one-half cost of a $7000 appraisal) ($14,000), and (iii) the preparation of baseline documentation for two easement transactions at $5,000 per transaction ($10,000). This budget also assumes that all costs of TAC transactions will be paid by the developer receiving the TAC credits.
Accounting Services:

FY 03/04 (budget) $5,000
FY 03/04 (actual) $4,100
FY 04/05 (requested) $5,000

Note: FY 03/04 assumes fifteen hour of services from Ward Pynn at Blanding Boyer and Rockwell at $250 an hour ($3,750) and the purchase of QuickBooks software ($350).

FY 2004/05 assumes twenty hours of services from Blanding Boyer and Rockwell.

Consulting Services:

Agricultural Mitigation Activities.

FY 03/04 (budget) $7,000
FY 03/04 (actual) $4,640
FY 04/05 (requested) $7,000

Note: Legal, real estate, strategic planning, marketing, grantwriting, public relations.

Agricultural Enterprise Activities.

FY 04/05 (new budget item) $24,000

Note: Assumes a Agricultural Enterprise Coordinator working eighty hours a month at $25 an hour.

Reserve Funds:

FY 2003/04 (budget) $7,500
FY 03/04 (actual) $ 570
FY 04/05 (requested) $7,500

Note: In FY 03/04, $570 in governmental filings not otherwise budgeted was allocated as Reserve Fund spending.










BRENTWOOD AGRICULTURAL LAND TRUST

Summary of 2003/04 Accomplishments


LAND TRANSACTIONS
• Develop model easement (six board meetings).
• Develop calendar for easement transactions.
• Retain attorney with expertise in easement transactions.
• Establish list of appraisers with easement appraisal expertise.
• Process easement transaction on 3740 Balfour Road.
Letter of intent executed July 29, 2003.
Property owner meets with Board four times in 2003/04.
Informational letter sent to all neighbors April 2004.
Appraiser interviewed and retained May 2004.
Contact Dept. of Conservation re funding for easement.
• Respond to requests for information from agricultural property owners.

TAC PROGRAM
• Develop model easement.
• Develop calendar for TAC easement transactions.
• Form TAC Committee to work with City (three meetings to date in 2004).
Develop procedures for coordinating processing of TAC transactions.
Establish policy for banking of excess TAC credits.
Establish policy for payment of TAC transaction costs.
Draft memorandum of understanding between City and BALT.
Consider amendments to Ordinance.
• Respond to requests for information from TAC property owners.
2500 Concord Avenue. Property owner met with Board on October 23, 2003, letter of intent executed by BALT December 4, 2003 -the property owner decided not to proceed at this time.
2250 Concord Avenue. Property owner met with the Board March 4, 2004, provided title insurance report April 2004 - the property owner reported that the negotiations with developer had come to a standstill but that the property owner is still interested in a TAC transaction.
Payne Avenue Assessor’s Parcel No, 010-180-022. BALT send a letter to developer on May 6, developer scheduled to meet with the Board May 20.
• Respond to requests for information from TAC developers
Private Island Homes. Developer representative met with the BALT Board on March 4 and is scheduled to met with Board on May 20.





AGRICULTURAL ENTERPRISE PROGRAM
• Form Agricultural Enterprise Committee – a broad-based advisory committee of farmers, community members, representatives of local, state and federal government representatives and agricultural, public relations and agricultural marketing professionals (mailing list of approximately 50 participants). Four meetings to date in 2004.
• Form a working relationship with Harvest Time.
• Work with community and Harvest Time to establish a Brentwood farmers market (approved by the City Economic Development Committee on May 6, projected start date in June).
• Through advisory committee establish projects that the agricultural community wishes to work on to promote local agriculture.
Establish farmers market (close to being accomplished).
Create comprehensive local branding/marketing program.
Establish clearinghouse/community calendar for local agricultural information and events (accomplished through BALT’s website).
Form an effective lobbying effort to reform County policies restricting agricultural enterprise activities in the County Agricultural Core.
• Explore funding for comprehensive local branding/marketing efforts (City of Brentwood, Great Valley Center Legaci grant program, Kellog Foundation).


BOARD DEVELOPMENT
• Sixteen Board meeting in the 2003/04 fiscal year.
• Assisted City in recruiting one new Board member (David Navarrette).
• Strategic Planning (five Board meetings) producing Mission Statement, Vision and Values Statement.
• LTA Rally attended by Executive Director and Vice Chairman Sheila Hagan (fully funded through a scholarship for East Bay Community Foundation).
• Board education on the Brown Act and the Fair Political Practices Act.


ADMINISTRATION
• Obtain federal 501(c)(3) designation.
• Establish Finance Committee (four meetings to date in 2004).
• Retain accountant.
• Work with the City Finance Department to establish City and BALT financial policies and procedures.
• Established calendar of all governmental filings required by nonprofit land trusts.
• Request letter of advice from the Fair Political Practices Commission re applicability of the FPPC to BALT.
• Adopt a BALT Conflict of Interest Code.
• Work with graphic designer to create logo and letterhead.


PUBLIC RELATIONS AND OUTREACH
• Speaking engagements (Harvest Time, Rotary Club, Chamber of Commerce, East Contra Costa Irrigation District, Tri-Valley Vision 2000, Seniors in Retirement, Contra Costa County Agricultural Advisory Task Force).
• Press (articles in Brentwood News, Brentwood Press, Diablo Magazine, Hometown News).
• Outreach to potential funders (four meetings with John Chapman of East Bay Community Foundation, volunteered to attend land trust visioning meetings held by Great Valley Center, attending conference funded by Kellog Foundation, participated in Contra Costa County Open Space Assessment District initiative – Board presentation on April 15).
• Established Friends of BALT.
• Corn Fest (BALT booth open all three days).
• Agricultural Roots Fair at Oakland Museum (September 2003).
• Agricultural Roots Fair to be held at Laney College in Oakland (May 22, 2004).
• SAGE Urban Edge Agricultural Parks (participating in study to identify property for urban edge agricultural parks).






























BRENTWOOD AGRICULTURAL LAND TRUST

Goals and Objectives for the 2004/05 Fiscal Year

LAND TRANSACTIONS
• Prepare model baseline documentation (document to be executed for each easement that establishes the condition of the property at the time the easement is executed).
• Retain consultants to perform baseline documentation (surveyor, environmental engineer).
• Research, prepare and adopt procedures and policies for easement monitoring.
• Research, prepare and adopt guidelines for stewardship fund deposits.
• Work with City Attorney, Community Development Department and City Council to amend ordinance to authorize the payment of transaction and stewardship costs by property owners in accordance with standard land trust policy.
• Complete easement transaction on 3740 Balfour Road (please note that the successful completion of this transaction depends on factors outside BALT’s control, including an appraisal of the easement value acceptable to the property owner and the property owners ability to subordinate any loans on the property to the conservation easement).
Complete appraisal.
Seek funding from the State Department of Conservation.
Negotiate easement.
Prepare baseline documentation.
Prepare easement monitoring plan.
Establish stewardship fund.
• Establish range of values for conservation easements in the County Agricultural Core through appraisals on potential easement property.
• Respond to requests for information from agricultural property owners.
• Increase outreach to agricultural property owners through Harvest Time, UC Coop Extension, the Farm Bureau, the Agricultural Enterprise Committee, the Brentwood Farmers’ Market, public speaking and media outreach.

TAC PROGRAM
• Complete TAC Committee work (two meetings in 2004).
• Complete Memorandum of Understanding between the City and BALT re TAC policies and procedures.
• Draft and approve Agreement to Pay Costs to be executed by BALT and TAC developer.
• Work with the City Attorney, Community Development Department and City Council to amend ordinance to authorize the payment of transaction and stewardship costs by developers in accordance with standard land trust policy for mitigation easements.

• Increase outreach to TAC agricultural property owners.
Send informational letter to all TAC agricultural property owners (June 2004- letter approved by the Board).
Hold informational meeting for interested TAC property owners.
Provide TAC information packet to interested property owners.
Add interested property owners with appropriate TAC properties to property owner list to be provided to developers.
• Increase outreach to developers.
City mails informational letter to all developers.
Hold informational meeting for developers (in conjunction with City Community Development Department staff).

AGRICULTURAL ENTERPRISE PROGRAM
• Work with the City Attorney, Community Development Department, Economic Development Department and the City Council to explore ways to obtain City funding for agricultural enterprise activities.
• Hold monthly meetings of the Agricultural Enterprise Committee (the second Wednesday of the month at 7 pm in the City Council Chambers).
• Work with Pacific Coast Farmer’s Market Association to promote and manage the Brentwood Farmers’ Market.
• Establish a plan for a comprehensive Brentwood branding/marketing program.
Invite speakers with branding/marketing expertise (June meeting: Sheila Duffy and Bill Mott from AgLand Investments)
Research branding/marketing efforts by other California regions.
Seek funding for branding/marketing program (Great Valley Center Legaci Grant Program – due September 2004, USDA Value-Added grant program, Kellog Foundation).
• Maintain community calendar and informational clearinghouse for agricultural events and information.
• Work with local agencies to reform zoning of agricultural enterprise activities in the County Agricultural Core.
Work with Contra Costa County Agricultural Advisory Task Force to amend zoning requirements for roadsides stands (project currently underway).
Work with Contra Costa County Community Development Department to complete property owner guides to (i) agricultural enterprise rules, and (ii) roadside stand regulations (project currently underway).
Promote changes in zoning to allow (i) commercial kitchens in the County Agricultural Core to process local produce and (ii) special events such as weddings, fundraisers, dinners on farms.

BOARD DEVELOPMENT
• Hold eighteen BALT Board meetings during the 2004/05 fiscal year.
• Complete Three-Year Strategic Plan.
• Recruit Board member for vacant City appointee position.
• Attend Land Trust Alliance Rally (October 28-31).

FUNDRAISING
• Establish BALT Development Committee (six meetings during the 2004/05 fiscal year).
• Draft and approve a Three-Year Fundraising Plan.
• Research and establish policies, procedures and accounting for accepting public donations.
• Develop Friends of BALT
Establish mailing list.
Draft, produce and send four BALT newsletters with request for membership and donations.
Hold first fundraiser (dinner on a farm).
• Continue to develop relationships with potential funders (East Bay Community Foundation, Great Valley Center, Kellog Foundation and others).

ADMINISTRATION
• Hold six Finance Committee meetings during the 2004/05 fiscal year.
• Prepare 2005/06 – 2006/07 budget in accordance with City budgeting process.
• Set up BALT bookkeeping on QuickBooks.
• Establish and set investment guidelines for stewardship fund.
• Prepare and file governmental filings.
• Hire administrative assistant to work eighty hours a month.
• Establish comprehensive filing system.
• Find and lease office space

PUBLIC RELATIONS AND OUTREACH
• Draft and produce BALT brochures.
• Continue outreach to newspapers and media.
• Return public speaking engagements with East Contra Costa County Irrigation District, Chamber of Commerce, Harvest Time, Tri-Valley Vision 2000.
• New speaking engagements with Summerset, local PTA groups.
• Corn Fest.
















Brentwood Agricultural Land Trust

2003-2004 CALENDAR
MEETINGS OF THE BOARD OF DIRECTORS


City of Brentwood City Council Chambers
734 Third Street
Brentwood, CA
(925) 516-5405

Thursdays, third Thursday of the month, 4-6 PM

June 19, 2003

July17, 2003

August 21, 2003

September 18, 2004

October 10, 2003

October 23, 2004

November 20, 2004

December 18, 2004

January 15, 2004

February 5, 2004

February 26, 2004

March 4, 2003

March 25, 2004

April 1, 2004

April 15, 2004

May 20, 2004


BRENTWOOD AGRICULTURAL LAND TRUST

STRATEGIC PLAN 2004


Mission Statement

The mission of the Brentwood Agricultural Land Trust is to protect productive agricultural land and to promote the economic viability of agriculture in East Contra Costa County.


Vision Statement

The Brentwood Agricultural Land Trust has a vision of the future of East Contra Costa County that we work towards in our daily work. We envision a future in which:

• A vibrant, economically strong agricultural community thrives in many forms, from large agricultural producers to small organic farms, and has the flexibility to adapt to the changing demands of the local and world economy and support a diversity of farmers.

• The surrounding residential population values and actively supports local agriculture, both for its essential economic contribution to our community, and as the source of our community’s history, sense of place and unique character.

• The community regards local farmers as essential partners in creating a healthy, livable landscape, and farmers are held in high esteem and supported by the public and local government for their stewardship of the land.

• Today’s generations of farmers are able to pass on their land to those in next generation who wish to continue their family’s farming tradition or to new farmers seeking to join the our local farming community.

• Brentwood is increasingly valued throughout the Bay Area region, California and the nation as a unique agricultural region, and Brentwood agricultural products are known and demanded by consumers.

• The Brentwood Agricultural Land Trust is a respected organization, valued and trusted by the community as an important resource.



Value Statement

Although there are many important principles that guide our work, the Brentwood Agricultural Land Trust emphasizes the following values as essential to our efforts:

• Respect. We recognize that farmers have fed our community for generations and we value the hard work that farmers contribute to their land and their communities every day. We respect the wisdom that can be gained only through generations of experience farming the land in this place. We will work to earn the trust and respect of the farmers in our community through our own hard work, and by honoring the wisdom of their experience.

• Responsibility to the Future. We believe that it is essential to the well-being and security of our community that today’s farmers and future generations of farmers remain able to continue farming in the extraordinary soil and climate of our region and make a living for their families farming. We recognize our responsibility to protect our valuable farmland and work with farmers to preserve our community’s farming tradition for future generations.

• Integrity. We are dedicated to fulfilling our mission with integrity and honesty, working with others in the spirit of cooperation and collaboration.

• Perseverance. We are committed to overcoming with integrity and perseverance any challenges we may encounter in achieving our mission to protect valuable agricultural land and promote local agriculture.

• Organizational Excellence. We are a professional, effective and efficient organization that is committed to excellence and accountability to our community.








Brentwood Agricultural Land Trust
P.O. Box 2046
Brentwood, CA 94513
(925) 516-5426
www.brentwoodaglandtrust.org






BRENTWOOD AGRICULTURAL LAND TRUST
P.O. Box 2046
Brentwood, California 94513
(925) 516-5426




________, 200__




TAC Property Owner
TAC Sending Area
Brentwood, CA 94513



Re: Conservation Easement on .


Dear Mr. and Mrs. Property Owner;

The purpose of this letter is to establish an initial understanding between the Brentwood Agricultural Land Trust (“BALT”) and you, as the owners of the parcel of property located at _____________________(Assessor Parcel Numbers ____________) (the “Property”), regarding a potential agricultural conservation easement on the Property. This letter is meant to provide us with a framework to move forward with the conservation easement process.

1. Our Intention to Work Together. We are pleased that you have approached BALT and expressed an interest in recording an agricultural conservation easement on the Property. As you are aware, the BALT Board of Directors met on _________, 200__ and determined that BALT is interested in holding an easement on your Property. As we move forward with the conservation easement transaction, you and BALT will incur certain expenses. Consequently, we agree that you will negotiate solely with BALT as the land trust that will hold the proposed conservation easement.

2. Timing of Transaction. We acknowledge that both you and BALT would like to complete the conservation easement in a timely manner. The staff of BALT has prepared a preliminary time line for the transaction, which is attached to this letter as Attachment A. However, we all acknowledge that the schedule is tentative and that the completion of the transaction is dependent on the satisfaction of conditions by BALT, by you and by parties outside the control of BALT. Consequently, we all recognize that there can be no guarantee that the transaction will be completed as tentatively scheduled. Additionally, other factors, for instance, the decision by you to seek a charitable deduction for a portion of the easement value, could increase the length of time necessary to complete the transaction.

3. BALT’s Role in the Transferable Agricultural Credit Transaction. The Property is located in the Transferable Agricultural Credit Area designated by City Council Ordinance No. 683, Brentwood Municipal Code, Section 17.730.040 (the “Ordinance”). Pursuant to the Ordinance, the City may grant two credits (each worth one dwelling unit above mid-range) for each acre of agricultural land that is placed in a permanent conservation easement. It is our understanding that, in connection with the recordation of the proposed conservation easement on the Property, you have negotiated to sell the _______ credits derived from the permanent protection of the Property to __________(the “Developer”). The Developer will purchase the credits from you, and you will place the Property in a permanent conservation easement. It is anticipated that the transactions will close in a simultaneous escrow. However, we all acknowledge that (i) BALT will not pay any funds for the proposed conservation easement on the Property, (ii) any payment of funds for the credits is the subject of an agreement between you and the Developer, and (iii) any allocation of additional density to the Developer by the City is subject of an agreement between the City and the Developer. It is our understanding that BALT will not participate in any agreement between you and the Developer or any agreement between the Developer and the City. BALT will negotiate the terms of a conservation easement on the Property directly with you and, subject to the successful completion of such negotiations; BALT will accept the conservation easement from you.

4. Donation of Easement. You have discussed with us the possibility that you may wish to structure the transaction so that you could make a charitable donation of a portion of the value of the conservation easement to BALT to mitigate the income tax consequences of the sale of the credits to the Developer. Please let us know as soon as possible if you wish to pursue this possibility so that BALT can retain counsel to consider BALT’s acceptance of such a donation. Please be advised that structuring the transaction to include a charitable donation could increase both the cost and the time necessary to complete the transaction.

5. Intention to Keep Property in Agricultural Uses. As you are aware, BALT’s mission is to preserve productive agricultural land. You have advised us that it is your intention to maintain approximately ____ acres of the Property in agricultural production. The agricultural conservation easement will require that you acknowledge your intention to maintain approximately ninety percent of the Property in productive agriculture.

6. Limitations on the Further Subdivision and Construction of Additional Homes on the Property. Thank you for providing BALT with Preliminary Title Reports for the Property. The Preliminary Title Report confirms that the Property is comprised of _____ assessors parcels (Assessor’s Parcel Numbers _______________________), each of which are owned by you. You have told us that you currently have ___ homes on the Property. It is our understanding that you are willing to execute a conservation easement that prohibits any further subdivision of the Property and limits the dwelling units on the Property to the existing homes.

7. Notification of Neighboring Property Owners. As we have discussed, it is BALT’s policy to notify neighboring property owners of a potential conservation easement. We do this, not only as neighborly courtesy, but to give neighboring property owners an opportunity to join in the conservation easement transaction. By signing this letter, you consent to BALT notifying your neighbors of the proposed conservation easement.

8. Subordination of Lenders. Prior to the recording of the conservation easement on the Property, all existing liens and encumbrances on the Property must be extinguished or subordinated to the conservation easement. Any subordination must be in substantially the form attached to this letter as Attachment B. We anticipate that you will work with the your lenders to obtain the requisite subordination agreements.


9. Property owner to seek Legal Counsel and Financial Advice. As you are aware, the recording of a conservation easement on property has significant legal and financial consequences for property owners, and may provide property owners with certain financial and tax opportunities. Neither the Board of Directors, the staff nor anyone associated with BALT can provide you with any legal or financial advice. We urge you to obtain your own legal counsel and financial advice regarding the Property and the conservation easement transaction.

Once again, we are pleased that you are considering providing BALT with a conservation easement on your Property and we look forward to continuing to work cooperatively with you throughout this transaction. As we are all aware, the completion of the conservation easement transaction is dependent on a number of contingencies, some of which are outside our control. Consequently, this letter is not a contract but a statement of our mutual understanding to provide us with a basis to proceed with the transaction. While we look forward to continuing to work together to record a conservation easement on your Property, and hope that you feel the same, we acknowledge that neither party has any contractual obligation to go forward. However, we do agree to notify each other as soon as possible if one of us should choose not to continue the conservation easement transaction.

To allow this process to move forward, and if the matters addressed in this letter are agreeable to you, please sign and date the enclosed copy of this letter in the spaces provided and return it to us in the enclosed envelope. Please feel free to contact me or Kathryn Lyddan with any questions or comments you may have.


Sincerely,



Bruce C. Ghiselli
Chairman of the Board of Directors
Brentwood Agricultural Land Trust


Acknowledged:


_____________________________ ___________, 2003
Mr. Property Owner


_____________________________ ___________, 2003
Mrs. Property Owner































Attachment A to Letter of Intent dated __________, 200_


CONSERVATION EASEMENT ON _______________________
Tentative Timeline for TAC Transaction

Month 1 BALT provides the Property Owner with a TAC Property Owner packet.

Property owners attend meeting of the Brentwood Agricultural Land Trust (“BALT”) Board of Directors to answer questions about the Property and the proposed conservation easement transaction on the Property.

BALT Board approves addition of Property owner to the TAC Property Owner list.

Property owners provide BALT staff with preliminary title report for the Property.

Month 2 BALT Board of Directors meeting during which the Board
1. conducts a site visit of the Property
2. reviews the preliminary title report on the “Property, and
3. approves proceeding with a letter of intent to be sent to the Property owners (completed).

BALT staff sends Property owners a letter of intent.

Property owners send BALT a signed copy of the letter of intent.

A signed copy of the letter of intent is provided to the City Community Development Department.

Month 3 BALT sends a letter to neighboring property owners notifying
them that BALT is considering obtaining a TAC conservation easement on the Property.

BALT staff sends property owner with draft of the conservation easement and retains attorney to review easement.

BALT staff and Stewardship Committee begin stewardship plan for the Property.

BALT staff and consultants begin the Baseline Documentation Report.

Property owners notify lenders about possible conservation easement on the Property and request the subordination of loans to the conservation easement

Property owner contacts holders of any surface mineral, oil and gas rights regarding extinguishing such rights.

Month 4 through BALT staff, Easement Committee and Property owners negotiate
Month 8 terms of conservation easement.

BALT staff, Property owners and consultants work on the Baseline Documentation Report.

Property owner works with lenders to obtain subordination and with holders of surfaces rights to extinguish such rights.

Month 5 to Property owners and consultants complete Baseline
Month 9 Documentation Report.

Property owners obtain subordination of lenders and extinguish surface rights.

BALT staff, Easement committee and Property owners finalize negotiations on conservation easement.

BALT staff and Stewardship Committee finalize Stewardship Plan.

Month 6 BALT Board of Director meeting at which the Board:
1. approves the final conservation easement, baseline documentation and related documents.

BALT and Property owners sign the conservation easement.

Conservation easement and subordination agreement(s) recorded.

Monitoring Committee established.














WHEN RECORDED RETURN TO:

Brentwood Agricultural Land Trust
P.O. Box 2046
Brentwood, CA 94513

MODEL
DEED OF PERPETUAL AGRICULTURAL CONSERVATION EASEMENT
(Transfer of Agricultural Credit Area)
(Not for Execution)

This DEED OF AGRICULTURAL CONSERVATION EASEMENT (the “Easement”) is entered into this ___ day of _______, 200__, by and between _______________, (the “Grantor”), and the BRENTWOOD AGRICULTURAL LAND TRUST, a California nonprofit public benefit corporation (the “Grantee”).

RECITALS

A. Grantor is the sole owner of certain real property, located in Contra Costa County within that certain area specified in the Brentwood Municipal Code, Section 17.730.040 (the “Municipal Code”) as the TAC sending area (such area shall be referred to herein as the “TAC Area”). The real property subject of this easement is approximately ___ acres and is more particularly described in Exhibit A attached hereto and incorporated herein (the “Property”). The Property is currently comprised of legal parcel(s) owned by Grantor. The Property is “productive agricultural land” as defined in the United States Department of Agricultural Soil Survey of Contra Costa County, California dated September 1977, as agricultural land with capability classifications of I, II, III, or IV.

B. Pursuant to the Municipal Code of the City of Brentwood (the “City”) and in accordance with the City’s General Plan, the City seeks to ensure the permanent preservation of agricultural land within the TAC Area, including the Property.

C. Pursuant to the General Plan of Contra Costa County (the “County”), the County seeks to ensure that certain agricultural land within the County retain its agricultural character and has designated such property, including the Property, as the County Agricultural Core Area.






D. The Property possesses significant agricultural, open space and scenic values (referred to collectively herein as “Conservation Values”) of great importance to the Grantor, the people of the City, the County, and the State of California.

E. The Grantor and Grantee intend that the agricultural productive capacity and open space character of the Property will be conserved and maintained forever, and that uses of the land that are inconsistent with these purposes will be prevented or corrected.

F. The Conservation Values of the Property, including the agricultural capacity of the Property, are documented in the Baseline Condition Report attached as Exhibit B and incorporated herein by reference. The Baseline Condition Report provides an inventory of relevant features of the Property including all structures, and the Grantor and Grantee agree that the Baseline Condition Report provides an accurate description of the Property as of the date of this Easement. The Grantor and Grantee further agree that the Baseline Condition Report will serve as an objective statement of the condition of the Property as of the date of the Easement that shall be used to monitor compliance with the express terms of this Easement. The Grantor hereby acknowledges receipt of a copy of the Baseline Condition Report, and the Baseline Condition Report is on file at the offices of the Grantee.

G. The Grantee is a publicly supported, tax-exempt nonprofit organization and a qualified organization under Sections 501(c)(3) and 170(h), respectively, of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder (the “Internal Revenue Code”). A primary purpose of the Grantor is to preserve and protect productive agricultural land through the acquisition of conservation easements.

H. By accepting the grant of this Easement, the Grantee agrees to honor the intentions of Grantor stated herein to promote, preserve and enhance the Conservation Values of the Property for the benefit of the people of the City, the people of the County and the people of the State of California, and agrees to accept the terms and conditions of this Easement.

CONSERVATION EASEMENT

NOW, THEREFORE, in consideration of the facts recited above, and the mutual covenants, terms, conditions and restrictions contained herein, and pursuant to the laws of the State of California, and in particular California Civil Code section 815 et seq., and any amendments or successor provisions thereto, Grantor hereby voluntarily grants and conveys to Grantee for valuable consideration, an agricultural conservation easement in perpetuity and in gross over the Property, of the nature and character hereinafter set forth.




1. Purpose. It is the purpose of this Easement to protect and preserve the Conservation Values, including the productive agricultural capacity of the Property and to prevent any use of the Property that will impair or interfere with the Conservation Values. Grantor intends that this

Easement will limit the use of the Property to those uses and activities that are consistent with the Conservation Values and that are allowable by the terms and conditions of this Easement. The primary purpose of this Easement is to preserve and protect the productive agricultural capacity of the Property. Additionally, to the extent that the preservation of open space and scenic values of the Property is consistent with such agricultural capacity, it is also within the purpose of this Easement to protect those values. These purposes are collectively referred to as the “Conservation Purpose” of this Easement.

2. Rights of Grantee. To accomplish the purpose of this Easement, the following rights are conveyed to Grantee:

a. Identification and Protection of Conservation Values. To identify, preserve and protect in perpetuity the Conservation Values of the Property for the benefit of the general public, including the soil and water quality, productive agricultural value and the open space and scenic values.

b. Prevention of Prohibited Uses. To prevent any activity on or use of the Property that is inconsistent with the Conservation Values, and to require the restoration of any features of the Property that may be damaged by any inconsistent activity or use. However, it is the intention of this Easement that the Grantor shall have the discretion to employ its choices of agricultural management practices so long as those uses and practices protect and preserve the Conservation Values and are consistent with the Conservation Purpose.

c. Inspection of the Property. To enter upon the Property at reasonable times and with notice to Grantor in order to (i) conduct monitoring inspections and tests and other reasonable activities as may be deemed appropriate by Grantee to monitor Grantor’s compliance with the terms of this Easement, and (ii) enforce the terms of this Easement as set forth in Paragraph 4 below.

d. Signage. Subject to the consent of Grantor, to erect and maintain a sign or other appropriate marker in a prominent location on the Property, visible from a public road, stating that the Property is protected by Grantee. The wording of this information shall be determined by Grantee, but shall clearly indicate that the Property is privately owned and that public access is prohibited or restricted. Grantee shall be responsible for the costs of erecting and maintaining such sign or marker.

3. Uses of the Property.

a. Permitted Uses. Grantee and Grantor intend that this Easement shall
confine the uses and activities on the Property to agricultural, ranching and residential
uses that do not substantially impair the Conservation Values. Grantee and Grantor agree that the current uses and activities as documented in the Baseline Report do not substantially impair the Conservation Values. Exhibit C, attached hereto and incorporated herein, sets forth uses and

activities regarding the Property that are consistent with the Conservation Values and that are hereby expressly permitted. Uses or activities explicitly permitted in Exhibit C shall not require the prior written approval of Grantee. Any uses or activities not explicitly permitted in Exhibit C shall require prior written approval of Grantee.

b. Prohibited Uses. Any use or activity on the Property that will materially impair the Conservation Values is inconsistent with the purpose of this Easement is prohibited in perpetuity. Exhibit D, attached hereto and incorporated herein, sets forth certain uses and activities that are inconsistent with the Conservation Values and are expressly forbidden.

c. Exhibit C and D Not Exhaustive. The activities and uses set forth in both Exhibits C and D are not necessarily exhaustive recitals of consistent and inconsistent uses and activities of the Property. They are set forth to (i) establish specific permitted and prohibited uses and activities of the Property, and (ii) provide guidance in determining whether other activities and uses would be consistent with the Conservation Values. The Grantee expressly reserves the right to determine on a case-by-case basis whether uses and activities not explicitly set forth in Exhibit C are permitted.

d. Basis for Grantee Approval. When the Grantee’s written approval is required hereunder, the Grantee shall consider the possible effect of the proposed uses of the Property on the Conservation Values protected by this Easement. The Grantee’s decision on a specific request for the approval shall apply to that request only and shall not establish precedent. Approval or disapproval shall be at the sole discretion of the Grantee, and may be granted upon conditions that protect the Conservation Values.

e. Procedure for Obtaining Grantee Approval.

(1) When the Grantor is required to request the approval of the Grantee pursuant to this Easement, the Grantor shall provide the Grantee with a written description of the proposed new use of the Property, including information of its size, function, capacity, duration and location (referred to herein as the “Proposed Use Application”) no later than sixty (60) days before the Grantor intends to begin the proposed use. The information shall be sufficient for Grantee to make a reasonably informed judgment.

(2) Grantee shall review the Proposed Use Application and the information submitted with it and shall, within fifteen days after delivery of the Proposed Use Application, notify Grantor that the it was received and whether the information submitted by Grantor was sufficient to allow Grantee to make an informed determination as to its consistency with the terms of this Conservation Easement. If the information submitted was insufficient to make an informed decision, then Grantee shall require that Grantor supply the additional information reasonably necessary to make such a determination.

(3) Grantee shall have forty-five (45) days from the date Grantee determines that Grantor has submitted all the information reasonably required by Grantee to review the proposed use or activity and to give notice to Grantor of its decision. If in the judgment of Grantee the proposed use or activity should not be permitted in the form set forth in the notice, but that the proposed use or activity would be permitted if modified, then Grantee’s response shall notify Grantor of suggested modification(s) and conditions that would permit the use or activity.

(4) No Activity Pending Resolution. Pending the determination by Grantee, the new use or activity may not be conducted. If Grantor disagrees with the Grantee’s decision the parties may agree to mediate or to arbitrate the disagreement. Pending resolution of the disagreement, Grantor agrees that the new use or activity shall not be conducted.

(5) Grantee’s Sole Discretion in Making Determination. Grantee’s decision shall be based upon the specific activities and uses in question. Approval or disapproval shall be at the sole discretion of Grantee and may be granted upon conditions that further the purposes of this Conservation Easement. Each such request may be considered and determined on its own and without accepting as precedent existing nonagricultural uses or previous decisions by the Grantee. No decision by the Grantee shall establish precedent for or commitment to the outcome of future decisions.

(6) Certificate/Amendment of Easement After Completion. Upon the completion of any new use or activity, Grantee shall, at the request of Grantor, inspect the Property and, if the action was performed in accordance with the terms of this Easement and the approvals or consents issued by Grantee hereunder, issue a certificate to that effect, dated as of the time of inspection. The certificate shall be specifically limited to approval or consent to the new use or activity, and shall not be construed as an approval or consent to all uses or activities ongoing on the Property as of the date of said inspection. Depending on the nature of the new use or activity, Grantee may require that an Amendment documenting the new use or activity be prepared, executed and recorded with the County Recorder’s office. Any oral approval or oral representation made by Grantee, its officers, employees or agents, does not meet the requirements of this paragraph, does not otherwise bind or commit Grantee, and may not be relied on. To that end no oral approval or oral representation made by Grantee,
its officers, employees or agents, or understood by Grantor to have been made by the Grantee, its officers, employees or agents, shall be used by Grantor to assert that Grantee is, in any way, estopped or has made an election or has waived any provision of this Easement.

(7) Grantor to Be Responsible for All Costs. The Grantee shall be fully reimbursed by the requesting party (Grantor) for all costs, including but not limited to, reasonable professional fees of surveyors, attorneys, consultants, Grantee staff, and accountants, incurred in servicing the Proposed Use Report.

4. Enforcement.

a. Grantee’s Rights. The Grantee shall have the right to prevent and correct violations of the terms of this Easement. With reasonable advance notice to the Grantor, the Grantee may enter the Property for the purpose of inspecting for violations. If the Grantee finds what it believes is a violation, it may, at its discretion, take appropriate legal action. Except when an ongoing or imminent violation could irreversibly diminish or impair the Conservation Values, the Grantee shall give the Grantor written notice of the violation and thirty (30) days to correct it, before filing any legal action. If a court with jurisdiction determines that a violation may exist or has occurred, the Grantee may obtain an injunction to stop it, temporarily or permanently. A court may also issue an injunction requiring the Grantor to restore the Property to its condition prior to the violation. In any case where a court finds that a violation has occurred, the Grantor shall reimburse the Grantee for all its expenses incurred in stopping and correcting the violation, including but not limited to reasonable attorney's fees. The failure of the Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time.

b. Ex Parte Relief. Notwithstanding the previous paragraph, if Grantee, in its sole discretion, determines that circumstances require immediate action to prevent violation of the Conservation Purpose or to mitigate significant damage to the Conservation Values of the Property, Grantee may pursue its remedies under this section without prior notice to Grantor or without waiting for the period provided for cure to expire, including but not limited to ex parte judicial relief. Grantee shall have the right to obtain injunctive relief pursuant to this section 4 if, in Grantee’s sole discretion, an injunction is required to protect the Conservation Values or the Conservation Purpose or otherwise to enforce this Conservation Easement.

c. Equitable Remedies. Grantee’s rights under this section apply equally in the event of either actual or threatened violations of the terms of this Conservation Easement. Grantor and Grantee expressly agree that the Property, by virtue of its Conservation Values, is unique and that a violation of this Conservation Easement, and any ensuing harm or alteration of the Property, will result in damages that are irremediable and not subject to quantification. Accordingly,

Grantor agrees that Grantee’s remedies at law for any violation of the terms of this Conservation Easement are inadequate and that Grantee is 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 Conservation Easement, without 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 in addition to all remedies now or hereinafter existing at law or in equity. Equitable relief may include restoration of the Property to the condition that existed prior to the injury.

d. Actual Damages. Inasmuch as the actual damages which would result from the loss of the values associated with the Conservation Purpose of this Easement and caused by its breach, are uncertain and would be impractical or extremely difficult to measure, the parties agree that the damages allowed by Civil Code section 815.7(c) shall be measured as follows:

(1) for damages attributable to an improvement, prohibited by this Easement and which is not removed, an amount equal to the increase in the value of the Property due to the improvement, as set forth in a written estimate by a qualified person or organization selected by Grantee, plus interest compounded monthly at the then-current rate for post-judgment interest for the length of time commencing with Grantee’s notice until such damages are collected by Grantee; and/or

(2) for damages attributable to a use prohibited by this Easement, whether or not it involves an improvement, an amount equal to any economic gain realized because of the change in use, as set forth in a written estimate by a qualified person or organization selected by Grantee, plus interest compounded monthly at the then-current rate for post-judgment interest for the length of time commencing with Grantee’s notice until such damages are collected by Grantee; and/or

(3) for damages attributable to a use prohibited by this Easement, whether or not it involves an improvement and whether or not there is any measurable economic gain realized by Grantor, an amount equal to the cost of restoration, as set forth in a written estimate by a qualified person or organization selected by Grantee, plus interest compounded monthly at the then-current rate for post-judgment interest for the length of time commencing with Grantee’s notice until such damages are collected by Grantee.

e. Application of Proceeds. Without limiting Grantor’s liability therefore, the Grantee shall apply damages recovered to the cost of undertaking any corrective action on the Property. Should the restoration of lost values be impossible or impractical for whatever reason, the Grantee shall apply any and all damages recovered to furthering the Grantee’s mission, with primary emphasis on agricultural easement acquisition, stewardship and enforcement.

f. Forbearance is Not a Waiver. Forbearance by the 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 construed to be a waiver by the Grantee of such term or of any subsequent breach of the same or any other term of this Easement. No delay or omission 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

5. Rights Retained by the Grantor. The Grantor retains for itself, and its personal representatives, heirs, successors, transferees and assigns, all rights accruing from 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 consistent with the purpose, provisions and restrictions of this Easement. Without limiting the generality of the foregoing, the following rights are expressly reserved:

a. Permitted Activities. The permitted activities and uses contained in Exhibit C herein;

b. Water Rights. All interest in, and right and title to all tributary and non-tributary water, water rights, and related interest in, on, under or appurtenant to the Property, provided that, such water rights shall not be transferred, severed, sold, leased or encumbered separately from title to the Property, except as permitted in Exhibit C; and


c. Retained Private Ownership Rights. The right to exclude trespassers from the Property and the right to lease an interest in the Property to others or to sell the Property (but not the right to create or suffer a legal or de facto subdivision of, or otherwise sell, transfer, or convey portions of the Property), subject to the restrictions set forth in this Easement and any and all applicable provisions of law.

6. Obligations Retained by the Grantor.

a. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs related to the ownership, operation, upkeep, and maintenance of the Property and shall keep adequate comprehensive general liability insurance coverage. The Grantor shall keep the Property free of any mechanics liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor which may result in a mechanics lien or lis pendens being recorded against the Property.

b. Real Property and Possessory Interest Taxes. The Grantor shall pay before delinquency all real property and possessory interest taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property, including any taxes imposed upon, or incurred as a result of, this Easement (collectively referred to herein as “Taxes”).

c. Hold Harmless. In view of the Grantee’s negative rights, limited access to the land and lack of active involvement in the day-to-day management activities on the Property, the Grantor shall hold harmless, indemnify and defend the Grantee and their respective officers, directors, governing members, employees, contractors, partners, insurers, attorneys, agents, personal and legal representatives, successors and assigns of each of them (collectively “Indemnified Parties”) from and against all liabilities, penalties, costs, losses, orders, liens, charges, damages, expenses, causes of action, claims, demands or judgments, including, without limitation, reasonable attorneys fees, arising from or in any way connected with (i) 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, unless due to the sole negligence or willful misconduct of any of the Indemnified Parties and (ii) the obligations specified in Paragraphs 6(a) and 6(b). The Grantee shall be named as an additional insured on all of the Grantor’s insurance policies related to the Property.

7. 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, or earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property and structures on the Property resulting from such causes.

8. Access. No right of access by the general public to any portion of the Property is conveyed by this Easement.

9. Grantor’s Title Warranty. Except for the exceptions to title insurance set forth in the policy of title insurance issued to Grantee at the time of execution of this Easement, Grantor covenants that the Property is free and clear of all liens, encumbrances, assessments, easements, leases (recorded and unrecorded), and taxes.

10. Subordination. Any financing lien or encumbrance on the Property shall be subordinate to this Easement. The existing financing lien on the Property has been subordinated to the Easement pursuant to the Subordination Agreement attached herein as Exhibit F.

11. Environmental Provisions.

a. Grantor’s Representations. The Grantor warrants and represents to the Grantee, which warranties and representations shall survive the termination of this Easement, that to the best of the Grantor’s knowledge, and except as disclosed by the Grantor to the Grantee in writing prior to the date hereof, (i) no material (hereinafter collectively “Hazardous Materials”) regulated under any applicable environmental, hazardous waste, and/or health and safety laws, statutes or

regulations, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections 9601 et seq.), the Superfund Amendments and Reauthorization Act of 1986, the Federal Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), the Clean Water Act (33 U.S.C. Section 466 et seq.), the Safe Drinking Water Act (14 U.S.C. Sections 1401 1450), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the Toxic Substance Control Act (15 U.S.C. Sections 2601 2629), the California Hazardous Waste Control Law (California Health and Safety Code Sections 25100 25600), the Porter Cologne Water Quality Control Act (California Health and Safety Code Section 13000 et seq.), and the Safe Drinking Water and Toxic Enforcement Act (California Health and Safety Code Section 25249.5 et seq.), and any and all amendments, modifications, successor and related statutes, regulations, rules and ordinances thereto (hereinafter collectively the “Applicable Laws”), has been used, generated, manufactured, placed, stored, treated, released, disposed, or discharged on the Property in violation of any of the Applicable Laws; (ii) none of the Grantor’s operations on the Property are the subject of any federal, state, county, municipal or other governmental or quasi-governmental investigation evaluating whether any remedial action involving a material expenditure is needed to respond to a release of any toxic or hazardous waste or substance into the environment; and (iii) the Grantor has no material contingent liability in connection with any release of any toxic or hazardous material or substance into the environment.

The Grantor further warrants and represents to the Grantee, which warranties and representations shall survive the termination of this Easement, that neither the Grantor, nor any of its successors or assigns (including, by way of example but not limitation, lessees, subleases, occupants, or purchasers of all or a portion of or interest in the Property) shall in violation of any of the Applicable Laws use, generate, manufacture, place, store, treat, release, dispose or discharge any Hazardous Materials on the Property, or cause or suffer any such activity to occur, in violation of any of the Applicable Laws.

b. Grantor’s Indemnity. The Grantor hereby releases and agrees to defend, indemnify and hold the Grantee and their respective officers, directors, governing members, employees, contractors, partners, insurers, attorneys, agents, personal and legal representatives, successors and assigns, harmless from and against any and all liabilities, losses, claims, costs, demands, penalties, orders, charges, liens and expenses (including reasonable attorneys fees and costs) whatsoever, regardless of by whom or when asserted, arising out of, connected with or relating to (i) any such use, generation, manufacture, placement, storage, treatment, release, disposal, discharge, or contamination in violation of the foregoing warranties and representations; (ii) any violation or alleged violation of, or other failure or alleged failure to comply with any of the Applicable Laws; (iii) any investigation and/or remediation of any Hazardous Material or (iv) any claim or defense by the Grantor or any third party that any Indemnified Party is liable as an “owner” or “operator” or “responsible person” of the Property under any Applicable Law. The Grantors obligation under this Section shall include the

obligation to provide, upon demand, a defense for the Grantee against any demand, claim, liability, litigation, claim, investigation, and/or order for remediation, with counsel reasonably satisfactory to the Grantee. The obligations of the Grantor hereunder shall include, but not be limited to, investigation and remediation activities with respect to any known or suspected Hazardous Materials, liabilities arising out of any investigation or remediation with respect to Hazardous Materials and any damages claimed by any third party or parties, including claims for personal injury and/or property damage, arising from or relating to any Hazardous Materials, the violation by the Grantor of any of the warranties and representations set forth above, or from the investigation, remediation, or other actions of the Grantor.

c. Grantee Not an Owner, Operator or Responsible Person. Notwithstanding any other provision herein to the contrary, the parties do not intend this Easement to be construed such that it creates or gives the Grantee the obligations or liability of an “owner” or “operator” or “responsible person” as those words are defined by the Applicable Laws.

12. Amendment. If circumstances arise under which an amendment to or modification of this Easement is appropriate, the Grantor and the Grantee may jointly amend this Easement; provided that no amendment shall be allowed that will affect the qualification of this Easement under any applicable laws, including, but not limited to, California Civil Code Section 815.1 and Internal Revenue Code sections 501(c)(3) and 170(h) and any amendments or successor provisions thereto. Any amendment shall be consistent with the Conservation Purpose of this Easement, shall not affect its perpetual duration and shall be recorded in the official records of the County Recorder for the County of Contra Costa, California.

13. Termination of Easement. The parties agree that it is the intent of this Easement to run with the land in perpetuity. If, however, circumstances arise in the future such as to render the Conservation Purpose of this Easement impossible to accomplish, this Easement may be terminated, in whole or in part, only by judicial proceedings in a Court of competent jurisdiction, and the amount of the compensation to which the Grantee shall be entitled from such 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 14. The Grantee shall use all such proceeds in a manner consistent with the Conservation Purposes of this Easement. Grantor and Grantee intend that this Easement shall not be terminated solely as a result of changes in the surrounding land uses, changed agricultural practices, the non-availability of water, or any other changes in the condition of the Property or the land surrounding the Property. Similarly, the fact that one of the Conservation Purposes is not being satisfied, e.g. that the property is not then in agricultural use, is not by itself sufficient reason for termination of this Easement.

14. Valuation. This Easement constitutes a real property interest immediately vested in Grantee. For the purpose of this paragraph 14, the parties stipulate that this Easement has a fair market value equal to the greater of: (a) the value determined by multiplying 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 Easement) by the ratio of the value of the Easement at the time of this grant to the value of the Property, unencumbered by the Easement; or (b) the amount of the difference between the then current fair market value of the Property unencumbered by this Easement and the then current fair market value of the Property encumbered by this Easement, as determined by an appraisal approved by Grantor and Grantee and performed at Grantor’s sole expense by an appraiser jointly selected by Grantor and Grantee. For the purposes of this paragraph, the Grantor and the Grantee agree that the ratio of the value of the Easement to the value of the Property (minus any value attributable to improvements) unencumbered by this Easement is __% (________ percent), which is the ratio determined by an appraisal approved by the parties as of the Effective Date.

15. Condemnation. If all or any part of the Property is taken by exercise of the power of eminent domain or acquired by purchase in lieu of condemnation, whether by public, corporate, or other authority, so as to terminate this Easement, in whole or in part, the Grantor and the Grantee 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 therefore. Grantee shall be entitled to compensation in accordance with paragraph 14. All expenses reasonably incurred by Grantor’s and Grantee in connection with the taking or in lieu purchase shall be paid out of the amount recovered. If only a portion of the Property is subject to such exercise of eminent domain, this Easement shall remain in effect as to all other portions of the Property.

16. Assignment. The Grantee may assign its interest in this Easement only to a non-profit entity which is (i) qualified under section 170(h) of the Internal Revenue Code (or any successor provision then applicable) and the applicable regulations promulgated there under, and (ii) authorized to acquire and hold agricultural conservation easements under California Civil Code Section 815.3 (or any successor provision then applicable). In selecting an appropriate transferee entity, preference will be given to a qualified entity with an agricultural conservation purpose and a board, staff or consultants with practical agricultural management experience.

17. Subsequent Transfers. Grantor agrees to incorporate by reference the terms of this Easement in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Property, including but not limited to, leasehold interests. Grantor further agrees to give written notice to Grantee of the transfer of any interest in all or any portion of the Property not less than thirty (30) days prior to such transfer. The failure of the Grantor to perform any act required by this paragraph shall not impair the validity of this Easement or limit its enforceability in any way. This Easement shall be recorded and any transferee of title to all or
any portion of the Property shall take title subject to the terms of this Easement, whether or not the Easement is specifically referred to in the deed or other instrument of conveyance.

18. Costs of Enforcement. Any costs incurred in enforcing the terms of this Easement, including costs of suit and reasonable attorneys fees, and any costs of restoration necessitated by Grantor’s violation of the terms of this Easement (including costs of routine monitoring compliance) from such time as the violation was first identified through completion, to the satisfaction of Grantee, of any required restoration, shall be borne by Grantor.

19. Notices. Any notice, demand, request, consent, approval, or communication that any party desires or is required to give to any other party shall be in writing and may be served in any one of the following ways: personally, by certified mail, return receipt requested, or by overnight delivery, such as Federal Express, addressed as follows:

To Grantor:
_________________________________________
_________________________________________
_________________________________________

To Grantee:
Brentwood Agricultural Land Trust
Attention: Executive Director
P.O. Box 2046
Brentwood, CA 94513

or to such other address as any party from time to time shall designate by written notice to all other parties. Such notice shall be deemed to be effective when received if served personally or sent via Federal Express, and seven days (7) after being deposited in the mail.

20. Recordation. Grantee and Grantor shall work together to ensure that this instrument is recorded in a timely fashion in the official records of the County Recorder for the County of Contra Costa, California. The instrument may be re-recorded at any time as may be required to preserve rights in this Easement.

21. General Provisions.

a. Controlling law. The interpretation and performance of this Easement shall be governed by the laws of the State of California. References to authorities in this Easement shall be to the

statute, rule, regulation, ordinance or other legal provision that is in effect at the time this Easement becomes effective.

b. Liberal construction. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed in favor of the grant to affect the purpose of this Easement and the policy and purpose of California Civil Code Section 815. If any provision of 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 is found to be invalid, the remainder of the provisions of this Easement, or the application of such provision to any person or circumstance other than those as to which it has been found to be invalid, shall not be affected thereby.

d. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Easement and supersedes all prior understandings, discussions, negotiations, or agreements relating to the Easement, all of which are merged herein. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment that complies with paragraph 12 herein.

f. Perpetual Duration. The Easement created by this instrument shall be a servitude running with the land in perpetuity. Every provision of this Easement shall be binding upon on the Grantor and the Grantee and their respective personal heirs, representatives, successors, and assigns. All such heirs, representatives, successors and assigns shall be bound to every provision in this Easement, whether or not this Easement is referred to in the instrument by which such heirs, representatives, successors or assigns acquire an interest in the Property.

g. Termination of Rights and Obligations. A parties rights and obligations under this Easement terminate upon transfer of the parties interest in the Easement or the Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer.

h. Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon construction or interpretation.

i. Cooperation. The parties agree to cooperate in good faith with each other in the administration of this Easement. Each party hereto will, upon the reasonable request of the other party, execute, acknowledge, and deliver, or cause to be executed, acknowledged, and delivered, such further instruments and documents as may be reasonably necessary in order to fulfill the intents and purposes of this Easement.

j. Warranty of Authority. Each person executing this Easement on behalf of a party represents and warrants that such person is duly and validly authorized to do so, has full right and authority to enter into this Easement and all of its obligations hereunder.




IN WITNESS WHEREOF, Grantor and Grantee have executed this agreement effective as of the date first above written.

GRANTOR: [Insert name of Grantor]


Date_____________ ________________________________________
Signature

Name:___________________________________

Title:____________________________________


(Notarization of Grantor’s signature)
/
/
/

GRANTEE: BRENTWOOD AGRICULTURAL LAND TRUST
a California nonprofit public benefit corporation

Date_____________ By:__________________________
(Print name and capacity)


EXHIBIT A

Legal Description of the Property



EXHIBIT B

Baseline Condition Report


The Baseline Condition Report will consist of reports, maps, photographs, a map of existing uses and any other documentation necessary to show relevant features of the Property. In the recitals of the Easement, the Property owner and BALT agree that the Baseline Condition Report provides an accurate description of the Property at the time of the execution of this Easement. The Baseline Condition Report, one copy of which will be given to the Property Owner and one copy of which will be kept in the office of BALT, will be used by BALT to monitoring compliance with the terms of this Easement.


EXHIBIT C

Permitted Uses and Practices

The following uses and practices, through not necessarily an exhaustive recital of consistent uses and practices are expressly permitted under this Easement and they are not to be precluded, prevented or limited by this Easement.

1. To reside on the Property, including all uses ancillary to residing on the Property with the building site envelopes legally described and identified in Exhibit E of this Easement and consistent with the provisions of paragraph 4 below.

2. To engage in any and all agricultural uses of the Property in accordance with sound, generally accepted agricultural practices. For the purpose of this Easement, “agricultural uses” shall be defined as breeding, raising, pasturing and grazing livestock of every nature and description for the production of food and fiber, provided that such activities may not include the establishment or maintenance of any commercial feedlot which is defined for the purposes of this Easement as a confined area or facility within which land is not grazed or cropped at least annually and that is used to receive and feed livestock that have been raised off the Property; breeding and raising bees, fish, poultry and other fowl; planting, raising, harvesting and producing agricultural, viticulture, aqua cultural, horticultural crops and products of every nature and description. Agricultural uses shall include the processing, storage, packaging, marketing and sale of farm products, including the direct retail sale to the public; provided, however, that any such processing, packaging storage, marketing and sales shall take place within the agricultural enterprise envelope described and identified in Exhibit F of this Easement; provided further, however, that, if the agricultural enterprise use includes a U-Pick business, U-Pick customers picking for their own use non-commercial use may pick produce on the Property outside the agricultural enterprise envelope.

3. To maintain and repair existing structures, housing, fences, corrals, roads, ditches and other improvements on the Property in substantially their present location and size. Additional fencing deemed by the Grantor to be reasonably necessary for agricultural activities may be constructed without the Grantee’s consent.

4. To remodel existing single-family residences on the Property, with the approval of appropriate governmental agencies; provided that, such remodeling of the existing residences are located within the building site envelope identified in Exhibit E. The Grantor shall provide notice to the Grantee of its intent to remodel such residences not less than five days after filing an application for any permit required by any governmental entity for the proposed improvements or not less than sixty days prior to the commencement of construction, whichever comes first. Such notice shall demonstrate that the location of all additional improvements is within the building site envelope.

5. To construct and remodel additional structures, facilities and roads outside the building site envelope identified in Exhibit E and the agricultural enterprise envelope identified in Exhibit F; provide that, such additional structures, facilities and roads shall be directly related and reasonably necessary to the agricultural uses of the Property and further provided that the Grantor obtains the express written approval of the Grantee, in accordance with paragraph 3(e) of this Easement, which consent shall not be unreasonably withheld. The purpose of requiring written prior approval is to afford Grantee an opportunity to ensure that any construction outside the building site envelope or the agricultural enterprise envelope does not have a significant adverse impact on the Conservation Values.

6. In the event of destruction, deterioration or obsolescence of any improvements, structures, housing, fences, roads or ditches, whether existing at the date of this Easement or constructed subsequently pursuant to the provisions of the preceding paragraph and Easement, the Grantor may replace the same with improvements or structures of similar size, function, capacity and location in a manner that is not inconsistent with the Conservation Values of this Easement.

7. To develop and maintain such water resources on the Property as are necessary or convenient for agriculture, irrigation and residential uses in a manner consistent with the purpose of this Easement, provided, however, that no water rights or rights to a water service may be transferred, severed, sold, leased or encumbered separately from the title of the Property without the consent of the Grantee, provided further that the Grantee shall not unreasonable withhold such consent so long as the Grantor can show that that the transfer, sale, lease or encumbrance would neither adversely impact the use of the Property for productive agriculture nor adversely impact the Conservation Values.

8. To use agrichemicals, including but not limited to fertilizers and biocides in the amount and with such frequency of application necessary to accomplish reasonable agricultural purposes and subject to Paragraph 11 of this Easement concerning Hazardous Materials.

9. To control predatory and problem animals by use of selective control techniques and subject to the provisions of Paragraph 11 of this Easement concerning Hazardous Materials.

10. To utilize the Property for agricultural enterprise activities within the agricultural enterprise area established in Exhibit F hereof; provided however, that the agricultural enterprise area shall not exceed ___ acres, and; provided further, that such uses do not disturb or alter the current physical characteristics of the Property, require surface alteration or other development of the Property, or interfere with or impair the Conservation Values.
EXHIBIT D

Prohibited Uses and Practices

Any activity or use of the Property inconsistent with the purpose of this Easement is prohibited in perpetuity. Without limiting the generality of the foregoing, the following activities and uses are inconsistent with the purposes of this Easement and are expressly prohibited in perpetuity:

1. The legal or de facto subdivision, or transfer or sale of any portion thereof or interest therein, of the Property for any purpose; provided, however, that the following shall not be prohibited by this paragraph: (a) a lease of a portion of the Property for agricultural use; or (b) the transfer or sale of the Property.

2. The construction, reconstruction or replacement of any structure, facility or road, except as provided in Paragraphs 3, 4 and 5 of Exhibit C of this Easement.

3. The establishment of residential, commercial or industrial uses outside of the building site envelope described in Exhibit E of this Easement; provided however, that agricultural uses, as contemplated by the provisions of Exhibit C shall not be considered commercial or industrial uses.

4. The filling, dumping, excavating, draining dredging mining, drilling, removing, or the exploring for or extracting of minerals, hydrocarbons, solid, sands, gravel, rock or any other material on or below the surface of the Property that is not directly related to accepted agricultural practices, except the extracting of water on or below the surface of the Property, provided however, that this provision shall not prohibit the exercise of subsurface mineral rights that are not accessed through the surface of the Property.

5. The accumulation, dumping or other disposal of trash, waste, refuse, or debris on the Property, except for organic material generated on the Property or used for permitted agricultural uses on the Property; provided that any such dumping or disposal of organic material shall be in accordance with applicable law and generally accepted agricultural management practices.


6. Any uses or activities that would pollute or degrade the surface or sub-surface waters on or underlying the Property, except such uses or activities consistent with generally accepted, sound agricultural practices or otherwise permitted pursuant to this Easement.

7. Any use or activity that causes substantial degradation of topsoil quality.


8. Any commercial or for-profit recreational, educational or other nonagricultural use that disturbs or alters the current physical characteristics of the Property or requires surface alteration or other development of the Property, except as may otherwise be (a) expressly permitted pursuant to the provisions of Section 2 of Exhibit C of this Easement or (b) approved by the Grantee. The Grantee shall not give permission unless the Grantor demonstrates to the Grantee that the proposed use will not interfere with or impair the Conservation Values set forth in the Easement.


EXHIBIT E

Legal Description of the Building Site Envelope[s]

The building site envelopes shall be set forth in metes and bounds by a survey on the Property and shall be marked by monuments placed on the Property.


EXHIBIT F

Legal Description of the Agricultural Enterprise Envelope[s]

The agricultural enterprise envelopes shall be set forth in metes and bounds by a survey on the Property and shall be marked by monuments placed on the Property.


EXHIBIT G

Subordination Agreement



RECORDING REQUESTED BY
Brentwood Agricultural Land Trust

AND WHEN RECORDED MAIL TO:


Brentwood Agricultural Land Trust
P.O. Box 2046
Brentwood, California 94513



APN NO :
SUBORDINATION AGREEMENT
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER SECURITY INSTRUMENT.

THIS AGREEMENT, made this __________________ day of ________________________________________, 20 _________, by ________________ ______________________________________________________________________________________________________________, owner of the land described in Exhibit A attached hereto and hereinafter referred to as "Owner," and ___________________________________________________________ ___________________________________________________, present owner and holder of the security interest hereinafter described and hereinafter referred to as "Beneficiary":

WITNESSETH
THAT WHEREAS, Owner did execute a Deed of Trust (“Security Instrument”), dated ____________________________________________________, to ___________________________________________________________________________________________________, as trustee, to secure a note in the sum of $______________________________________, dated ______________________________________________ in favor of Beneficiary, which was recorded ________________________________, as instrument number _____________________________________ in the Official Records of Contra Costa County; and

WHEREAS, Owner has executed, or is about to execute, that certain DEED OF PERPETUAL AGRICULTURAL EASEMENT (hereinafter referred to as “Easement”) dated ______________________________, in favor of the BRENTWOOD AGRICULTURAL LAND TRUST (hereinafter referred to as "BALT") and said Easement is to be recorded concurrently herewith; and

WHEREAS, it is a condition precedent to Owner and BALT entering into said Easement, and BALT’s acceptance thereof, that said Easement shall unconditionally be and remain at all times a lien or charge upon the land attached hereto as Exhibit A (hereinafter referred to as “Property”) prior and superior to the lien or charge of the Security Instrument; and

WHEREAS, BALT is willing to enter into and accept said Easement provided it constitutes a lien or charge upon the Property prior and superior to the lien or charge of the Security Instrument and provided that Beneficiary will specifically and unconditionally subordinate the lien or charge of the Security Instrument to the lien or charge of the Easement in favor of BALT; and

WHEREAS, it is to the mutual benefit of the parties hereto that BALT enter into and accept said Easement; and Beneficiary is willing that the Easement shall, when recorded, constitute a lien or charge upon said Property which is unconditionally prior and superior to the lien or charge of the Security Instrument.

NOW, THEREFORE, in consideration of the mutual benefits accruing to the parties hereto and other valuable consideration, the receipt and sufficiency of which consideration is hereby acknowledged, and in order to induce BALT to enter into and accept said Easement, it is hereby declared, understood and agreed as follows:

(1) That the Easement, and any modifications thereof, shall unconditionally be and remain at all times a lien or charge on the Property, prior and superior to the lien or charge of the Security Instrument.

(2) That BALT would not enter into and accept the Easement without this subordination agreement.

(3) That this agreement shall be the whole and only agreement between the parties hereto with regard to the subordination of the lien or charge of the Security Instrument to the lien or charge of said Easement and shall supersede and cancel any prior agreements as to such, or any, subordination including, but not limited to, those provisions, if any, contained in the deed of trust first above mentioned, which provide for the subordination of the lien or charge thereof to a deed, deeds of trust, mortgage, mortgages, or other instrument to be thereafter executed.

Beneficiary declares, agrees and acknowledges that

(a) It consents to and approves all provisions of said Easement; and

(b) It intentionally and unconditionally waives, relinquishes and subordinates the lien or charge of the Security Instrument in favor of the lien or charge upon said Property of said Easement and understands that in reliance upon, and in consideration of, this waiver, BALT has agreed to enter into and accept said Easement, which BALT would not have entered into or accepted but for said reliance upon this waiver, relinquishment and subordination.


______________________
Beneficiary:
Date:


______________________
Owner:
Date:
(ALL SIGNATURES MUST BE ACKNOWLEDGED)


STATE OF CALIFORNIA
COUNTY OF ________________________________________________} SS.

On ____________________________________ before me, ________________________________________________________________________, personally appeared ________________________________________________________________________________________________________ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

WITNESS my hand and official seal.






Signature______________________________________________ (This area for official notarial seal)



STATE OF CALIFORNIA
COUNTY OF ________________________________________________} SS.

On ____________________________________ before me, ________________________________________________________________________, personally appeared ________________________________________________________________________________________________________ personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

WITNESS my hand and official seal.






Signature______________________________________________ (This area for official notarial seal)


IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS SUBORDINATION AGREEMENT, THE PARTIES
CONSULT WITH THEIR ATTORNEYS WITH RESPECT THERETO.












































CONSERVATION EASEMENT ON 3740 BALFOUR ROAD
Tentative Timeline
July 29, 2003

June 19, 2003 First site visit to 3740 Balfour Road (the” Property”) by the Brentwood Agricultural Land Trust (“BALT”) Board of Directors (completed).

June 23, 2003 BALT staff contacts State Department of Conservation Farmland Protection Program re possible State funding and State requirements for conservation easement matching fund grants (completed).

July 8, 2003 Property owners provide BALT with preliminary title report for the Property (completed).

July 17, 2003 BALT Board of Directors meeting during which the Board:
4. reviews the preliminary title report on the “Property, and
5. considers approval of the letter of intent to be sent to the Property owners. (completed)

July 22, 2003 Property owners provide BALT staff with contact information for the County staff person assigned to process the subdivision application on the Property (completed).

July 29, 2003 BALT staff sends Property owners a letter of intent with copies of:
1. tentative timeline for the easement transaction,
2. information about State Department of Conservation requirements for easement grants, and
3. a standard form of the subordination agreement that will be required by BALT.

August 2003 Property owners sends BALT a signed copy of the letter of intent, together with:
1. additional information regarding Exception No. 5 on the preliminary title insurance report, and
2. a preliminary financing plan outlining a plan for subordinating or extinguishing all liens on the Property prior to recordation of the conservation easement.

Property owners and County process subdivision application (through November 2003).

September 2003 BALT staff and Easement Committee prepare an initial draft of the conservation easement.

October 2003 BALT staff and Stewardship Committee prepare an initial stewardship plan and preliminary calculation of amount to be deposited in the stewardship fund.

BALT staff obtains bids from appraisers.

November 2003 BALT sends letter to neighboring property owners notifying them that BALT is considering obtaining a conservation easement on the Property.

BALT staff and committees review and revise conservation easement, stewardship monitoring plan and preliminary calculation of stewardship fund deposit.

BALT staff obtains bids to review legal documents from attorneys.
.
December 2003 Property owners receive County ruling on request for subdivision of Property into two forty-acre parcels.

BALT Board of Directors meeting in which the Board:
1. reviews documents provided by the Property owners,
2. reviews draft conservation easement, stewardship monitoring plan, and initial deposit into the stewardship fund.
3. retains appraiser for easement, and
4. considers bids to review legal documents from attorneys.

January 2004 BALT staff and Easement Committee perform second site inspection of property with the appraiser retained by BALT.

BALT staff sends the Property owners drafts of the conservation easement and stewardship plan, as well as an initial calculation of stewardship fund deposit.

BALT staff submits application for easement marching fund grant with the State Department of Conservation.

Property owners works to satisfy conditions for subdivision (through April 2004).

February 2004 BALT staff, Easement Committee and Property owners negotiate terms of conservation easement.

BALT retains attorney to review legal documents.

March 2004 Appraisal completed and submitted to State Department of Conservation and other possible funders.
Property owners obtains subordination of lenders and provides BALT and other funders with an updated financing plan.

April 2004 Final subdivision map recorded on Property.

BALT staff, Easement committee and Property owners finalize negotiations on conservation easement.

State Department of Conservation considers conservation easement grant proposal and appraisal.

BALT staff and Stewardship Committee finalize:
1. dollar amount to be deposited in the stewardship fund and preparations to establish such a fund, and
2. stewardship monitoring plan.

Informational meetings with the City of Brentwood regarding easement transaction.

May 2004 BALT Board of Director meeting at which the Board:
2. approves the final conservation easement and related documents, and
3. establishes the stewardship fund and the stewardship fee for the Property.

Approval of conservation easement grant matching funds from the State Department of Conservation.

June 2004 Approval of funding of the conservation easement by the Brentwood City Council.

Property owners pay stewardship fee into stewardship fund.

BALT and Property owners sign conservation easement.

Conservation easement and subordination agreement(s) recorded.

Monitoring Committee established.

Publicity.
 

City Administration
City of Brentwood City Council
150 City Park Way
Brentwood, CA 94513
(925) 516-5440
Fax (925) 516-5441
E-mail allcouncil@brentwoodca.gov