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CITY COUNCIL AGENDA ITEM NO. 16


Meeting Date: July 22, 2008

Subject/Title: Adopt a resolution approving and authorizing the City Manager or designee to execute a Memorandum of Understanding between the City of Brentwood and the Brentwood Agricultural Land Trust for transaction-based conservation easement services.

Prepared by: Linda Maurer, Economic Development Manager

Submitted by: Casey McCann, Community Development Director



RECOMMENDATION
Adopt a resolution approving and authorizing the City Manager or designee to execute a Memorandum of Understanding between the City of Brentwood and the Brentwood Agricultural Land Trust for transaction-based conservation easement services.

PREVIOUS ACTION
On April 10, 2007, the City Council discontinued ongoing administrative funding for the Brentwood Agricultural Land Trust.

On September 25, 2007, the City Council approved Resolution 2007-213, adopting a new set of implementation guidelines for Chapter 17.730 of the Brentwood Municipal Code (Agricultural Land Conservation) as recommended by the standing Agricultural Enterprise Committee.

BACKGROUND
The current policy of the City Council is to provide funding to local land trusts for individual conservation easement transactions, rather than funding ongoing administrative costs. Instead of crafting a professional services agreement for every transaction, it is recommended that a memorandum of understanding agreement be established with local land trusts or conservation groups. The MOU agreement shall, among other things, include the responsibilities of the land trust and the City as it relates generally to the conservation easement transaction. The MOU also provides the City with the appropriate insurance and indemnity required of other professional consultants under contract.

Attached to the resolution is a Memorandum of Understanding between the City and the Brentwood Agricultural Land Trust (BALT). BALT is currently working with the City’s Agricultural Enterprise Committee on a few possible conservation easement transactions, making them the first possible candidate for the new agreement.

Lastly, it should be noted that the MOU incorporates proposed revisions to the implementation guidelines, which are also before the Council this evening. If the Council has any concerns regarding the proposed changes to the implementation guidelines, either deciding against them or continuing the discussion, staff would recommend continuing this item until those concerns are resolved.



FISCAL IMPACT
There is no fiscal impact associated with this item. Transaction costs paid to BALT for specific conservation easements will be subject to the City’s purchasing policy and may require future Council action. Current estimated individual transaction costs provided by BALT are in the $25,000 to $30,000 range, depending on the nature and complexity of the specific easement transaction. This estimated amount accounts for consultant and legal fees as well as out-of-pocket expenses, including the costs for the appraisal and baseline report associated with the easement. This does not include the purchase price of the easement.


Attachments:
Resolution
Memorandum of Understanding

RESOLUTION NO. 2008-___

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BRENTWOOD AUTHORIZING THE CITY MANAGER OR DESIGNEE TO EXECUTE A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF BRENTWOOD AND THE BRENTWOOD AGRICULTURAL LAND TRUST FOR TRANSACTION-BASED CONSERVATION EASEMENT SERVICES

WHEREAS, on April 10, 2007, the City Council discontinued of ongoing administrative funding for the Brentwood Agricultural Land Trust; and

WHEREAS, on September 25, 2007, the City Council approved Resolution 2007-213, adopting a new set of implementation guidelines for Chapter 17.730 of the Brentwood Municipal Code as recommended by the standing Agricultural Enterprise Committee; and

WHEREAS, the Council’s current policy is to provide funding to local land trusts for individual conservation easement transactions. Instead of crafting a professional services agreement for every transaction, it is recommended that a memorandum of understanding agreement be established with local land trusts or conservation groups; and

WHEREAS, the MOU agreement shall, among other things, include the responsibilities of the land trust and the City as it relates generally to the conservation easement transaction. The MOU also provides the City with the appropriate insurance and indemnity required of other professional consultants under contract; and

WHEREAS, the Brentwood Agricultural Land Trust is currently working with the City’s Agricultural Enterprise Committee on a few possible conservation easement transactions, making them the first possible candidate for the new agreement; and

WHEREAS, the MOU between the City and the Brentwood Agricultural Land Trust (BALT) for transaction-based conservation easement services is attached as Exhibit A.

NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Brentwood authorizes the City Manager or designee to execute a Memorandum of Understanding between the City of Brentwood and the Brentwood Agricultural Land Trust for transaction-based conservation easement services in the form attached hereto with minor revisions approved by the City Manager in consultation with the City Attorney and revisions necessary to ensure consistency with any Council-approved revisions to the implementation guidelines.

PASSED, APPROVED AND ADOPTED by the City Council of the City of Brentwood at a regular meeting held on the 22nd day of July 2008 by the following vote:



MEMORANDUM OF UNDERSTANDING BETWEEN
THE BRENTWOOD AGRICULTURAL LAND TRUST
AND THE CITY OF BRENTWOOD
(Conservation Easement Services)

This Memorandum of Understanding (“MOU”) is entered this ____ day of _________, 2008 (“Effective Date”), by and between the Brentwood Agricultural Land Trust, a non-profit, public benefit corporation (“BALT”), and the City of Brentwood, a municipal corporation of the State of California (“City”) (each a “Party” and collectively, the “Parties”).

RECITALS

A. The City Council adopted the City Ordinance No. 683 to levy a mitigation fee to acquire agricultural conservation easements and fund the administration of the agricultural mitigation program.

B. The City Council adopted Resolution 2007-213 approving new Implementation Guidelines (“Guidelines”) for the conservation easement program.

C. BALT’s mission includes the acquisition of agricultural conservation easements. BALT has been providing land trust services to the City of Brentwood since 2003.

D. In 2007, the City discontinued ongoing administrative funding for BALT and instead opted to provide transaction-based funding to BALT, as defined in the Council-adopted Guidelines.

E. BALT continues its conservation easement work in the Brentwood area and will continue to seek transaction-based funding by the City for its efforts.

G. The Parties further desire to memorialize their relationship in this MOU and to set forth their respective roles and obligations in the conservation easement process.

NOW, THEREFORE, IT IS HEREBY AGREED by the Parties as follows:

1. Responsibilities of the BALT. BALT shall provide conservation easement services to the City as described in Exhibit A, attached hereto (the “Services”).

2. Responsibilities of the City. The City’s responsibilities are set forth in Exhibit B attached hereto.

3. Relationship of the Parties. It is understood that this is an MOU by and between independent contractors and is not intended to, and will not be construed to, create the relationship of agent, servant, employee, partnership, joint venture or association, or any other relationship whatsoever other than that of independent contractor.

4. Term. This MOU will remain in effect for a period of one year, unless terminated earlier pursuant to this Agreement. Two, one-year written extensions of this agreement can be granted by the City Manager, or designee, in consultation with the Council’s Agricultural Enterprise Committee, and memorialized in a written amendment to this MOU.

5. Indemnity. Except as to the sole negligence or willful misconduct of BALT, City will defend, indemnify and hold BALT, its officers, agents and employees, harmless from any and all loss, damage, claims, demands, liability, expense or cost, including reasonable attorneys’ fees, which arises out of, or is in any way connected with the performance of, the services by City or any of City’s employees, agents or subcontractors, notwithstanding that the BALT may have benefited from their services.

Except as to the sole negligence or willful misconduct of City, BALT will defend, indemnify and hold City, its officers, agents and employees, harmless from any and all loss, damage, claims, demands, liability, expense or cost, including reasonable attorneys’ fees, which arises out of, or is in any way connected with the performance of, the services by BALT or any of BALT’s employees, agents or subcontractors, notwithstanding that City may have benefited from their services.

The duty of the Parties to indemnify and save harmless as set forth herein, will include the duty to defend as set forth in Section 2778 of the California Civil Code. This Section 5 will survive the termination of this MOU.

6. Insurance. BALT will maintain comprehensive general liability insurance, automotive, and employer’s liability insurance in the amount of one million dollars ($1,000,000) combined single limit to protect against claims for bodily injury, and property damage arising from the activities described herein, unless another lower amount of insurance coverage is approved by the Assistant City Manager. The form of such insurance will be satisfactory to the City and the insurer will name the City, its officers, employees and agents as additional insureds as a separate endorsement on the policies. This Section 6 will survive the expiration of this MOU.

7. Compliance with Laws. The Parties will comply with all local, state and federal laws and regulations.

8. Entire Agreement. This MOU sets forth and contains the entire understanding and agreement of the Parties, and all oral or written representations, understandings or agreements are expressly stated in this MOU. No testimony or evidence of any such representations, understandings, or covenants will be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this MOU.

9. Amendments. Changes to the terms and conditions of this MOU will be made only by written amendment signed by the Parties.

10. Notices. All notices with respect to this MOU will be given by first class mail to the Parties as follows:

City: City Manager
City of Brentwood
150 City Park Way
Brentwood, CA 94513

BALT: Executive Director
Kathryn Lyddan
1120 Second Street
Brentwood, CA 94513

Or to such other persons, addresses or telephone numbers as the Parties may designate in writing from time to time.

11. Termination. Either Party may terminate this MOU by delivery of written notice of election to terminate to the other Party. In the event of termination, any unexpended funds will be returned to the Party that has contributed them.

12. Assignment. Neither Party will assign any right or obligation pursuant to this MOU without the written consent of the other Party. Any attempted or purported assignment without the written consent of the other Party will be void and of no effect.

13. Jurisdiction and Venue. Any action at law or in equity brought under this MOU for the purpose of enforcing a right or rights provided for by this MOU will be tried in a court of competent jurisdiction in the County of Contra Costa, State of California, and the Parties waive all provisions of law providing for a change of venue in these proceedings to any other county.

14. Paragraph Headings. Paragraph headings as used herein are for convenience only and will not be deemed to be a part of such paragraphs and will not be construed to change the meaning thereof.

15. Waiver. Waiver by either Party of any default, breach or condition precedent will not be construed as a waiver of any other default, breach or condition precedent or of any other right under this MOU.

16. Severability. If any term, provision, covenant, or condition of this MOU is ruled invalid, void, or unenforceable by a court of competent jurisdiction, this MOU will nonetheless remain in full force and effect as to all remaining terms, provisions, covenants, and conditions.

17. Maintenance of Records. BALT will maintain complete and accurate records with respect to costs associated with projects that fall under this MOU. All records will be clearly identifiable. BALT will provide City with an account statement within 30 days of the completion of Services.


18. Authority. The individuals executing this MOU represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this MOU on behalf of the respective legal entities of the Parties.

BALT:

By:
Kathryn Lyddan, Executive Director,
Brentwood Agricultural Land Trust

Date:
City of Brentwood:

By:
Donna Landeros, City Manager

Date:

ATTEST:

By:
Margaret Wimberly, City Clerk

APPROVED AS TO FORM:

By:
Damien B. Brower, City Attorney



EXHIBIT A

RESPONSIBILITIES OF BALT


If BALT desires to assist the City with a conservation easement transaction, BALT shall present a proposal to the City for consideration. The proposal shall be consistent with the Council-adopted implementation guidelines for the conservation easement program and shall:

o Include a letter of intent between BALT and the property owner that has been reviewed and approved by the City’s Agricultural Enterprise Committee.

o Provide a written scope of work for pre-appraisal services including:
o Transaction timeline
o Activities/work associated with the pre-appraisal phase of the easement transaction
o Estimate of out of pocket expenses relating to the this phase of the transaction, including but not limited to:
 Appraisal costs
 Legal fees
 Administrative hours needed to complete the easement transaction


If BALT, the property owner and the City desire to continue the easement transaction following the receipt of an appraisal, BALT shall provide the City with a post-appraisal transaction proposal including:

o Provide a written scope of work for post-appraisal services including:
o Transaction timeline
o Activities/work associated with the post-appraisal phase of the easement transaction
o Estimate of out of pocket expenses relating to the this phase of the transaction, including but not limited to:
 Legal fees
 Baseline report costs
 Updated administrative hours needed to complete the easement transaction


EXHIBIT B

RESPONSIBILITIES OF CITY


The City is responsible for implementing the Council-approved Guidelines.

The City shall compensate BALT for services conducted on individual easement transactions when authorized by the Agricultural Enterprise Committee and/or the City Council.

 
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