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Sample Solar-Use Easement Agreement

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AGREEMENT TO RESCIND AGRICULTURAL LAND CONSERVATION CONTRACT NO. ____ [OR FARMLAND SECURITY ZONE CONTRACT NO. ____] AND TO CREATE A SOLAR-USE EASEMENT; SOLAR-USE EASEMENT

THIS AGREEMENT (“Agreement”), dated the ___ day of ____________ 20___, is entered into by and between ______________________________________________ (“Owner”) and the COUNTY OF ________________ (“County”), a political subdivision of the State of California (collectively “Parties”).

Recitals

WHEREAS, Owner owns certain real property located within the County of _______________, State of California, as further described in “Exhibit A” and attached hereto and incorporated herein by reference (the “Property”); and

WHEREAS, the Property is currently subject to Agricultural Land Conservation Contract No. ____ [or Farmland Security Zone Contract No. ____, Resolution No. ___] (the “Contract”) restricting the use of the Property to agricultural production and compatible uses under the provisions of the California Land Conservation Act of 1965, as amended, (the “Williamson Act”) in Title 5, Division 1, Part 1, Chapter 7 (commencing with section 51200) of the Government Code [or in accordance with the requirements of Government Code section 51296.1]; and

WHEREAS, the Contract was entered into on____________________, and at the expiration of each year of its term an additional year is automatically added to its term so that there is always a period of [10 or 20] years remaining on the Contract term until a notice of nonrenewal is served on the other party and recorded by the non-renewing party; and

WHEREAS, Owner desires to convert the use of the Property from agricultural production to solar photovoltaic facilities providing for the collection and distribution of solar energy for the generation of electricity; and

WHEREAS, pursuant to Government Code section 51255.1, subdivision (c)(1), the County Assessor determined the current fair market value of the Property as though it were free of the contractual restriction for the purpose of calculating the fee required to rescind the Contract; and

WHEREAS, pursuant to Government Code section 51255.1, subdivision (c)(2), the County Board of Supervisors determined and certified to the County Auditor that the amount of the rescission fee that the landowner shall pay the County Treasurer upon rescission is $_________; and

WHEREAS, at the request of County, the California Department of Conservation, in consultation with the California Department of Food and Agriculture, determined the Property is eligible for a Solar-Use Easement Conversion pursuant to Government Code section 51191; and

WHEREAS, Owner and County wish to agree to simultaneously rescind the Contract and enter into a Solar-Use Easement pursuant to Title 5, Division 1, Part 1, Chapter 6.9 (commencing with  section 51190) of the Government Code (the “Solar-Use Easement Chapter”);

THEREFORE, Owner and County agree as follows:

  1. RESCISSION OF CONTRACT FOR THE PURPOSE OF CREATING A SOLAR-USE EASEMENT

    Subject to the terms and conditions of this Agreement, the Contract shall be rescinded so that Owner and County may simultaneously create a Solar-Use Easement (the “Easement”) pursuant to the Solar-Use Easement Chapter.

    Rescission of the Contract and creation of the Easement shall automatically occur upon fulfillment of the following conditions:

    1. The execution by Owner and a public or investor-owned utility of a power purchase agreement involving the Property; and
    2. Payment by Owner to the County Treasurer of the rescission fee set forth in paragraph 8; and
    3. Provision by Owner of the financial assurance set forth in paragraph 13.
  1. TERM OF AGREEMENT

    If the conditions set forth in paragraph 1 are fulfilled within 24 months of the date of this Agreement, then this Agreement shall continue until such time as the Property has been restored as required by paragraph 12.

    If the conditions set forth in paragraph 1 are not fulfilled within 24 months after the date of this Agreement, this Agreement shall terminate and the Property shall remain subject to the Contract.

  1. EFFECT OF AGREEMENT TO CREATE SOLAR-USE EASEMENT

    Upon fulfillment of the conditions set forth in paragraph 1, this Agreement shall also constitute the instrument granting an Easement as provided in the Solar-Use Easement Chapter. The Easement so created shall provide County with a right or interest, acquired pursuant to the Solar-Use Easement Chapter, restricting the use of the Property as provided in this Agreement.

  1. RESTRICTION ON USE OF PROPERTY

    During the term of this Agreement, Owner shall use the Property only for the purposes of providing for the collection and distribution of solar energy for the generation of electricity, and any other incidental or subordinate agricultural or open-space uses, or other alternative renewable-energy facilities. Owner shall neither construct nor permit the construction on the Property of any improvement except those for which the right is expressly reserved in this Agreement, as long as those reservations would be neither inconsistent with the purposes of the Solar-Use Easement Chapter nor incompatible with the sole use of the Property for solar photovoltaic facilities.

  1. RECORDATION OF EASEMENT

    Within 30 days after the creation of the Easement, County shall cause a copy of this Agreement to be recorded with the County Recorder and a copy to be filed with the County Assessor.

  1. TERM OF EASEMENT

    The Easement created pursuant to this Agreement shall remain in full force and effect for an initial term of   [at least 10 or 20]        years from the date on which the Easement is recorded by County as set forth in paragraph 5. At the end of the term and upon completion of the requirements contained in this Agreement, including the restoration requirements set forth in paragraph 12, the Property shall be free of any restrictions imposed by this Agreement, and upon request by Owner and with the concurrence of the Board of Supervisors, all or a portion of the Property may return to coverage under a contract as provided under the Williamson Act.

[Optional – For self-renewing easement]
On each anniversary date of the creation of the Easement [another annual date may instead be specified], one year shall automatically be added to the initial term unless a notice of nonrenewal is given as provided in paragraph 7.

[Optional – For self-renewing easement]

  1. NOTICE OF NONRENEWAL
    1. A party desiring in any year not to renew the Easement on all or a portion of the Property shall give to the other party written notice of nonrenewal of the Easement at least 90 days before the annual renewal date of the Easement. Unless written notice is given at least 90 days before the renewal date, the Easement shall be considered renewed as provided in paragraph 6.
    2. Upon receipt by Owner from County of a written notice of nonrenewal, Owner may protest to County in writing the notice of nonrenewal. County may, at any time before the renewal date, withdraw the notice of nonrenewal.
    3. If a party gives written notice of nonrenewal of the Easement, the Easement shall remain in effect for the balance of the term of the Easement.
  1. RESCISSION FEE

    Upon fulfillment of the conditions set forth in subparagraph 1.a., Owner shall pay to the County Treasurer a rescission fee of $__________.

  1. TERMINATION

    If all or a portion of the Property subject to the Easement will no longer be used for solar photovoltaic facilities providing for the collection and distribution of solar energy for the generation of electricity, Owner may, pursuant to the provisions of Government Code section 51192.2, petition County to approve termination of the Easement as to the affected portion of the Property.

  1. EXTINGUISHMENT

    The Easement created under this Agreement may, pursuant to the provisions of Government Code section 51192, be extinguished on all or a portion of the Property only upon expiration of the term set forth in paragraph 6, or by nonrenewal, termination, or returning all or a portion of the Property to coverage under a contract as provided under the Williamson Act.

  1. RELEASE OF EASEMENT

    Upon extinguishment of the Easement, County shall cause a release of Easement to be recorded with the County Recorder.

  1. RESTORATION REQUIREMENTS
    1. Except as provided in subparagraph b. of this paragraph, Owner shall, by the time the Easement is extinguished, restore the Property to the conditions that existed before the creation of the Easement. Such restoration shall include, but shall not be limited to, removal of all solar facilities from the Property, re-grading of the Property, and returning the physical characteristics of the Property’s soil to those that existed when this Agreement was executed.
    2. If the Easement is extinguished because of a notice of nonrenewal given by County, Owner shall restore the Property as described in subparagraph a. of this paragraph upon ceasing to use the Property as solar photovoltaic facilities for the purpose of providing for the collection and distribution of solar energy for the generation of electricity and shall continue to maintain the financial assurance described in paragraph 13 until such restoration has been completed.
  1. FINANCIAL ASSURANCE

    Owner shall provide    [e.g., performance bond, letter of credit, corporate guarantee]          as financial assurance that the restoration requirements set forth in paragraph 12 will be met.

  1. NO COMPENSATION

    Owner shall receive from County no payment in consideration of Owner’s obligations imposed under this Agreement, in that the consideration for the execution of this Agreement is the substantial benefit to be derived by Owner therefrom and the advantage that may accrue to Owner as a result of the rescission of the Contract.

  1. SUCCESSORS IN INTEREST

    This Agreement and the Easement and the restrictions, rights, duties and powers imposed or conferred hereunder respectively to Owner or County shall run with the Property and shall be binding upon the respective heirs, executors, administrators, trustees, successors, and assigns of Owner or County.

  1. CONDEMNATION

    When any action in eminent domain for the condemnation of the fee title of the Property is filed for a public improvement by a public agency or person, or whenever there is any such action or acquisition by the federal government, or any person, instrumentality or agency acting under authority or power of the federal government, this Agreement shall be terminated and the Easement extinguished as to the portion of the Property so condemned or acquired as of the date the action is filed.

  1. NOTICES

    Any notice required or permitted by this Agreement to be given by one party to the other shall be in writing and given either personally or by first-class mail, by depositing it with the United States Postal Service, postage prepaid, and addressed as follows:

    TO OWNER:

    [name] 
    [address]

    TO COUNTY:

    Board of Supervisors
    County of _____[name]____
    [address]

    or with such other address as a party may hereafter specify by a notice given in compliance with this provision. A notice given by mail shall be deemed as having been given on the third business day after its deposit in the mail.

  1. ENFORCEMENT

    During the term of this Agreement, County shall not approve any use of the Property that is inconsistent with this Agreement or the Easement, and no building permit shall be issued for the construction on the Property of any structure inconsistent with this Agreement or the Easement. County shall seek, by appropriate proceedings, an injunction against any construction or other development or activity on the Property inconsistent with this Agreement or the Easement and shall seek an injunction requiring the removal of any such inconsistent structure.

  1. INTEGRATION; AMENDMENTS

    This Agreement states the entire understanding of the parties on its subject matter and cancels and replaces any prior understanding between them with respect thereto. Any amendment to this Agreement or the Easement shall be in writing and signed by the Parties and be consistent with the terms of the Solar-Use Easement Chapter.

IN WITNESS WHEREOF, each party has caused this Agreement to be executed as of the date first set forth in this Agreement.

COUNTY OF ______________________

By: _______________________________
Chairperson, Board of Supervisors

ACKNOWLEDGMENT

STATE OF CALIFORNIA               )
                              )  ss.
COUNTY OF _________________  )

On _______________ (date), before me ________________________, Clerk of the Board of Supervisors, in and for said County and State, personally appeared _______________________, known to me to be the person who executed the within instrument on behalf of said political subdivision, and acknowledged to me that such County of _______________________ executed the same.
Clerk of the Board of Supervisors of
__________ County, State of California

_____________________________

OWNER

______________________________


ACKNOWLEDGMENT

STATE OF CALIFORNIA               )
                              )  ss.
COUNTY OF _________________  )

On _________________ (date), before me, ____________________, Notary Public, personally appeared ___________________________, who 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.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

 

___________________________
Notary Public