HomeMy WebLinkAbout041017_cabs02CABS
615 Sheridan Street
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Port Townsend, WA 98368
www.JeffersonCountyPublicHealth.org
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Public Healt
March 31, 2017
JEFFERSON COUNTY
BOARD OF COUNTY COMMISSIONERS
AGENDA REQUEST
TO: Board of County Commissioners
Philip Morley, County Administrator
FROM: Tami Pokorny, Environmental Health Specialist II
DATE: April 10, 2017
SUBJECT: Agenda Request: Conservation Futures Project Update and
Proposed Conservation Easement and Agreement — Midori
Farm
STATEMENT OF ISSUE:
Environmental Health requests the opportunity to provide an update on the 2015 Conservation Futures
Midori Farm Project and to present the project's draft conservation easement and personal services
agreement.
ANALYSIS/STRATEGIC GOALS:
On June 22, 2015, the Board of Commissioners approved a resolution to dedicate up to $92,806 of the
Conservation Futures Fund for acquisition expenses to support a conservation easement on Midori
Farm. The resolution also provides up to $1,820 for operations and maintenance.
The project is to place a conservation easement on the property in order to require single ownership,
restrict the building envelope to 2.5 acres, prevent loss of water rights and viability as a farm, and to
protect the property's other conservation values. The Midori Farm easement, as presented, included
29 acres and four parcels. Since then, project has been reduced to 14.7 acres and three parcels because
resolving ownership of the fourth parcel necessitated dividing it. This would have required a
Comprehensive Plan amendment which the owners chose not to pursue.
FISCAL EWACT:
The cost to hear the update is negligible.
Community Health
Developmental Disabilities
360-385-9400
360-385-9401 (f)
Always working for a safer and healthier community
Environmental Health
Water Quality
360-385-9444
(f) 360-379-4487
RECOMMENDATION:
Permit Environmental Health to provide an update and present the draft easement and agreement. Discuss
and ask questions.
REVIEWED BY:
Philip Morle r,nty Admini
Community Health
Developmental Disabilities
360-385-9400
360-385-9401 (f)
� V/C/I //' �-
Date
Always working for a safer and healthier community
Environmental Health
Water Quality
360-385-9444
(f) 360-379-4487
STATE OF WASHINGTON
County of Jefferson
Dedication of Conservation Futures Funds to the }
Midori Farm project As Authorized by and in }
Accordance with Jefferson County Code } RESOLUTION NO. 22-15
Section 3.08.030(7) to Provide a System of Public }
Open Spaces }
WHEREAS, conservation futures tax levy collections, authorized under RCW 84.34.230
are an important means of retaining community character and accomplishing the open space policies
and objectives of Jefferson County Comprehensive Plan that encourage the coordinated acquisition
of key open space lands for long-term protection; and
WHEREAS, Jefferson County is authorized by RCW 84.34.210 and 84.34.220 to
acquire open space land, agricultural and timber lands as defined in RCW 84.34.220; and
WHEREAS, the Conservation Futures Citizen Oversight Committee has reviewed
project applications for 2015 and made its funding recommendations to the Board of County
Commissioners in accordance with Jefferson County Code Chapter 3.08; and
WHEREAS, under the provisions of the Jefferson County Conservation Futures
Program, the Jefferson Land Trust, as project sponsor, requests funding towards the purchase of a
conservation easement on four parcels of agricultural land in Sec. 14 T. 27N, R. 2W with Assessor's
Parcel Numbers 932700005, 932700010, 932700087, and 932700082; and
WHEREAS, the County retains enough developable land to accommodate the Midori
Farm project as well as the housing and employment growth that it is expected to receive, thus
satisfying the requirements of Chapter 449, Laws of 2005; and
WHEREAS, Jefferson County considers it in the best public interest to contribute
financially to this open space project.
NOW. THEREFORE BE IT RESOLVED that:
I . Jefferson County hereby dedicates up to $92,806 in conservation futures funds in the
2015 funding cycle for acquisition expenses contingent on a matching contribution of
fifty percent (50%) of the total project cost.
Resolution No. 22-15 re: Dedication of Conservation Futures Funds to the Bishop Dairy Preservation
project
APPR
2. Jefferson County hereby dedicates up to $1,820 in conservation futures funds to
reimburse for operations and maintenance expenses incurred within ten years of the
signing of this resolution contingent on a matching contribution of no less than the
amount of conservation futures funds requested.
This dedication of funding may be nullified if a submittal for reimbursement,
accompanied by documentation of matching funds sufficient to complete the
acquisition, is not received from the sponsor within three years of the signing of this
resolution.
►VD ADOPTED this 22 day of , 2015 in Port Townsend, Washington.
1�
Carolyn Avery
Deputy Clerk of the Board
JEFFERSON COUNTY
BO74ul
COM T STONERS
Da, / air
Phil Johnson, Member
cc v
Kathleen ler. Member
Midori Farm
Conservation Easement
0 75 150 300
Feet
2015 Aerial Image (NAI P)
For informational purposes only. All
data represented are from varying
sources and approximate. N
Map created in January, 2017
AFTER RECORDING RETURN TO:
Jefferson Land Trust
1033 Lawrence St.
Port Townsend, WA 98368
Please print or type information WASHINGTON STATE RECORDER'S Cover Sheet (RCW
65.04)
Document Title(s) (or transactions contained therein):
GRANT DEED OF CONSERVATION EASEMENT
Reference Number(s) of Documents assigned or released:
Additional reference numbers on page(s) of document.
Granting Owner(s) (Last name, first name, initials)
COLBY, MARK and MYERS, MELISSA HANAKO
Grantee(s) (Last name first, then first name and initials)
JEFFERSON LAND TRUST
Legal description (abbreviated: i.e. lot, block, plat or section, township, range)
Lts 2 & 3 and ptn Lt 10 Bishop's Sub
Additional legal description is on page(s) of document.
Assessor's Property Tax Parcel/Account Numbers:
32700005; 932700010; and 932700087
The Auditor/Recorder will rely on the information provided on the form. The staff will not read
he document to verify the accuracy or completeness of the indexing information provided
herein.
GRANT DEED OF CONSERVATION EASEMENT
This GRANT DEED OF CONSERVATION EASEMENT ("Easement") is made by MARK
COLBY and MELISSA HANAKO MYERS, husband and wife, having an address of 10 Old
State Hwy, Quilcene, Washington 98376 ("Granting Owner" and "Owner"), in favor of
JEFFERSON LAND TRUST, a Washington nonprofit corporation, having an address of 1033
Lawrence Street, Port Townsend WA 98368 ("Grantee") (collectively "Parties").
1. RECITALS
Granting Owner is the owner in fee simple of that certain real property, approximately
16 acres in area, located in Jefferson County, Washington, and legally described in
Exhibit A (Legal Description of Property) (the "Property"). The Property and its
significant features, including but not limited to an approximately 2.5 acre Building
Envelope, are shown on that certain survey recorded in Volume —of Surveys,
page , under Auditor's File Number records of Jefferson
County, Washington (the "ISurveyli"). Commented [EKI]: We didn't hire the surveyor to survey the
whole property, so we should probably adjust this language so that it
clarifies the survey is specifically of the BE, not the whole property
1.2. The Property possesses significant agricultural, open space, and scenic values of
great importance to Granting Owner, Grantee, the people of Jefferson County, and commented [oMZRibe Is tnereasnrveyoftne cE bomidar es? 1
If no, why would that not be needed? J
the people of the State of Washington (collectively, "Conservation Values"). The
Conservation Values include: agricultural productivity; prime, unique, and important
agricultural soils of regional and State-wide importance; existing and potential
economic productivity; and the viability of the site for continued agricultural
production, based on its farm -to -market access, proximity to roads and utilities,
historic structures, water rights, and drainage.
1.3. The Conservation Values are further documented in an inventory of relevant features
of the Property on file at the offices of Grantee and incorporated herein by this
reference ("Baseline Documentation"). The Baseline Documentation has been
prepared by Grantee and consists of reports, maps, surveys, photographs, and other
documentation that Granting Owner and Grantee agree provide, collectively, an
accurate representation of the Property as of the date of this Easement and which is
intended to serve as an objective information baseline for monitoring compliance with
the terms of this Easement. The Parties acknowledge that the Baseline
Documentation, as signed by the Parties, is complete and accurate as of the date of
this Easement. The Baseline Documentation may be used to establish that a
change in the use or condition of the Property has occurred, but its existence shall
not preclude the use of other evidence to establish the condition of the Property as of
the date of this Easement. Grantee may use the Baseline Documentation in
enforcing provisions of this Easement, but is not limited to the use of the Baseline
Documentation to show a change in the use or condition of the Property.
1.4. The legislatively declared policies of the State of Washington in the Washington
State Open Space Tax Act, Chapter 84.34 RCW ("OSTA"), provide that "it is in the
best interest of the state to maintain, preserve, conserve, and otherwise continue in
existence adequate open space lands for the production of food, fiber and forest
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crop, and to assure the use and enjoyment of natural resources and scenic beauty
for the economic and social wellbeing of the state and its citizens." Under the OSTA,
lands eligible for preferential real property tax treatment include lands such as the
subject Property where the preservation in its present use would conserve and
enhance natural resources and open space. Pursuant to this legislative directive,
Jefferson County has adopted an Open Space Tax Program, Resolution No. 82-91,
that recognizes the importance of and provides preferential tax treatment for the
following natural and scenic resources that occur on the Property: stream and wildlife
corridors, wetlands, floodplain and aquifers; prime agricultural soils; and
opportunities to promote conservation principles by example and through education.
1.5. The Parties intend that the Conservation Values be preserved and maintained in
perpetuity by permitting only those land uses on the Property that do not impair or
interfere with the Conservation Values.
1.6. Granting Owner, as sole owner in fee of the Property, has the right to protect and
preserve the Conservation Values, and desires and intends to transfer such rights to
Grantee in perpetuity.
1.7. Grantee is a publicly supported, tax-exempt nonprofit organization, qualified under
Sections 501(c)(3) and 170(h) of the Internal Revenue Code of 1986, as amended,
and also qualified as a nonprofit nature conservancy corporation under Sections
64.04.130 and 84.34.250 of the Revised Code of Washington, one of whose
principal purposes is to acquire, hold, preserve, and dispose of land, easements,
leases, or other rights or interests in land, or improvements to land, in Jefferson
County, Washington, in order to protect natural areas and ecologically significant
land for scientific, educational, and charitable purposes for the benefit of the public.
Grantee agrees by accepting this grant to honor the intention of Granting Owner as
stated in this instrument and to preserve and to protect in perpetuity the
Conservation Values of the Property for the benefit of those now living and those as
yet unborn.
1.8. Ik portion of Grantee's costs of acquiring this Easement have been covered, OR pa+#,
by Jefferson County Conservation Futures funds awarded to Grantee. T"^ f, -^d^
hAVA h^^^ Awarded pursuant to a grant agreement between Jefferson County and
Grantee. A copy of the grant agreement is kept on file at the offices of Grantee.
4-9-1.9. A portion of toe -Grantee's costs of acquiring this Easement have been
-;PA, -rpd'covered as a result #of community fundraising by Grantee within
Jefferson County.
2. CONVEYANCE AND CONSIDERATION
2.1. For the reasons stated above, and in consideration of a cash payment, the receipt
of which is hereby acknowledged, and in further consideration of the mutual
covenants, terms, conditions, and restrictions contained herein, and pursuant to the
laws of Washington, in particular RCW 64.04.130 and RCW 84.34.210, Granting
Owner hereby grants, conveys, and warrants, to Grantee a conservation easement
in perpetuity over the Property, consisting of the rights in the Property hereinafter
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Commented [DM3]: I think we are going to need to have a
breakdown of the dollar amounts. Anyone feel otherwise?
Commented [DM4]: No donations from outside Jefferson
County?
enumerated, subject only to title matters of record as of the effective date of this
instrument ("Easement").
2.2. Granting Owner believes that the amount of the cash payment received is less than
the fair market value of the interest in real property conveyed hereby. Granting
Owner reserves the right to claim a federal income tax deduction based on the
difference between the cash payment received and the fair market value of the
interest conveyed. Granting Owner acknowledges that any and all costs and fees
associated with claiming and substantiating the amount of any federal income tax
deduction are the sole responsibility of Granting Owner.
2.3. This conveyance is a conveyance of an interest in real property under the
provisions of RCW 64.04.130.
2.4. Granting Owner expressly intends that this Easement runs with the land and that
this Easement shall be binding upon Granting Owner's and Grantee's successors
and assigns in perpetuity.
3. PURPOSE
3.1. The Purpose of this Easement is to protect the Conservation Values of the Property
forever and prevent any use of the Property that will impair or interfere with its
Conservation Values.
3.2. Stewardship Plan. To further the Purpose of this Easement, the Parties, at Owner's
expense, will develop a written plan for stewardship of the Property, subject to the
written approval of all parties to the plan ("approved Stewardship Plan"). All
stewardship activities on the Property are to be carried out in compliance with the
Purpose and terms of this Easement. An approved Stewardship Plan that is
effective as of the date of any change of ownership shall become an interim plan
that will be valid for 90 days following the date of conveyance of the Property.
Grantee shall meet with the new owner during such 90 day period for the purpose
of reviewing the approved Stewardship Plan with the new owner and determining
whether such plan should be extended or revised.
3.3. The Parties intend that this Easement be interpreted in a manner consistent with its
Purpose.
3.4. The Parties intend that this Easement be interpreted to confine the Owner's use of
the Property to such activities that are consistent with the Purpose and terms of this
Easement. At the same time, the Parties intend, and this Easement is structured, to
give Owner flexibility to undertake activities that are consistent with the Purpose
and terms of this Easement.
3.5. No Public Rights Conveyed Through Easement. The Parties acknowledge that,
except as specifically may be provided herein, Granting Owner does not grant,
expand, or extend any rights to the general public through this Easement, including
without limitation, any rights of public access to, on, or across, or public use of, the
P ro pe rty.
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4. RIGHTS CONVEYED TO GRANTEE To accomplish the Purpose of this Easement, the
following rights are conveyed to Grantee by this Easement:
4.1. Protection. Grantee shall have the right to identify, protect, preserve, maintain, and
conserve in perpetuity and to enhance, restore, or improve by mutual agreement
the Conservation Values of the Property.
4.2. Access by Grantee. As provided for and limited herein, Granting Owner hereby
grants to Grantee reasonable and non-exclusive access to the Property at
reasonable times solely for the purposes of fulfilling Grantee's obligations under this
Easement and exercising its affirmative rights under this Easement. Specifically,
Grantee shall have the right:
4.2.1. To enter upon, inspect, observe, and study the Property, with such
persons as Grantee may require, at mutually agreeable dates and times and upon
reasonable prior notice to the Owner, for the purpose of (a) identifying the current
uses and practices on the Property and the condition of the Property, and (b)
monitoring the uses and activities on the Property to determine whether they are
consistent with this Easement.
4.2.2. To enter upon the Property, at a mutually agreeable date and time and
upon prior notice to Owner, to inspect the Property after major natural events occur,
such as fires, windstorms, land subsidence, and floods.
4.2.3. To enter upon the Property, at a mutually agreeable date and time and
upon prior notice to Owner, for educational or scientific use.
4.2.4. To enter upon the Property at such other times Grantee may have a
reasonable basis to believe that a violation of the Easement is occurring, for the
purpose of enforcing the provisions of this Easement. Prior to entry, Grantee is to
provide Owner notice, and describe the basis of the reasonable belief that a
violation is occurring on the Property.
4.3. Grantee is to exercise its access rights in compliance with applicable law and in a
manner that will not materially disturb or interfere with Owner's reserved rights, any
other person's lawful use of the Property, or Owner's quiet enjoyment of the
Property. Owner may not unreasonably withhold or delay its consent with regard to
dates or times proposed for access by Grantee.
4.4. Development Rights. Granting Owner hereby grants to Grantee all development
rights except as specifically reserved herein, and the Parties agree that such rights
may not be used on or transferred off of the Property as it now or hereafter may be
bounded or described, or to any other property adjacent or otherwise, or (except as
expressly permitted herein) used for the purpose of calculating permissible lot yield
or density of the Property or any other property.
4.5. Injunction and Restoration. Grantee has the right to prevent, or cause Owner to
prevent, any use of, or activity on, the Property that is inconsistent with the Purpose
and terms of this Easement, including trespasses by members of the public, and
has the right to undertake or cause to be undertaken the restoration of such areas
or features of the Property as may be materially damaged by activities contrary to
the provisions hereof, all in accordance with Section 9.
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4.6. Enforcement. Grantee has the right to enforce the terms of this Easement, in
accordance with Sections 8 and 9.
4.7. Assignment. Grantee has the right to assign, convey, or otherwise transfer
Grantee's interest in the Property in accordance with Section 13.
4.8. Signage. Grantee has the right to erect and maintain a sign or other appropriate
marker on the Property, bearing information indicating that the Property is protected
by this Easement held by Grantee.
4.9. Third Party Beneficiary. Granting Owner and Grantee recognize that, as a funding
source for this Easement, Jefferson County is a third party beneficiary of this
Easement. Granting Owner and Grantee hereby give Jefferson County the same
rights to enforce the terms of this Easement as are given herein to Grantee, subject
to prior coordination with Grantee.
5. PERMITTED USES
5.1. General. Granting Owner reserves for Granting Owner and Granting Owner's
successors and assigns, any and all rights not otherwise conveyed to Grantee
under this Easement and any and all uses of, or activities on the Property that are
not inconsistent with the Purpose and terms of this Easement, and that are not
prohibited herein. Without limiting the generality of the foregoing, Granting Owner
specifically reserves for Granting Owner and Granting Owner's successors and
assigns the following uses and activities on the Property, which are to be
considered permitted uses and activities under the Easement.
5.2. Owner may engage in, and allow others to engage in, agricultural activities (as
defined below), as further provided for and limited in this paragraph. As used
herein, "Agricultural Activities" shall mean the retail production of horticultural,
viticultural, floricultural, dairy, apiary, vegetable, or animal products, including but
not limited to crops commonly found in the community surrounding the property,
field crops, fruits, vegetables, horticultural specialties, livestock or livestock
products, or the retail production of berries, grain, hay, straw, seed, or Christmas
trees not subject to the excise tax imposed by RCW 84.33.100 through 84.33.140,
and all conditions and activities occurring on a farm in connection with such retail
production, including, but not limited to, marketed produce at roadside stands or
farm markets; noise; odors; dust; fumes; operation of machinery and irrigation
pumps; movement, including, but not limited to, use of current county road ditches,
streams, canals, and drains, and use of water for agricultural purposes; P.Apa^' ^ r
red w0thin the PFGt8Gted r eFt„ ground application of seed, fertilizers,
conditioners, and plant protection products; employment and use of labor; roadway
movement of equipment and livestock; protection from damage by wildlife;
prevention of trespass; and construction and maintenance of agricultural buildings,
fences, roads, bridges, and similar features, as well as restoration or maintenance
of streambanks, watercourses, and—eflARd ponds. Owner may accumulate and
store ashes, garbage, or other waste on the protected property only if such
accumulation occurs as a necessity in the normal course of domestic or agricultural
-6-
activities on the Property. Owner may take corrective or preventative action when
the Conservation Values of the Property are endangered or threatened by the
presence or unintended introduction of noxious weeds, disease organisms, pests,
or other biological or chemical agents that would tend to reduce the productive
agricultural capacity of the Property. Agricultural Activities shall also include such
"Accessory Uses," as defined in RCW 36.70a.1 77(3)(b), that are related to the
permitted Agricultural Activities on the Property, that maintain the primacy of, and
are subordinate to, the farmland character and use of the Property, that are
compatible with the Conservation Values, that are undertaken and completed in
accordance with the terms and conditions of an approved Stewardship Plan to the
extent such a plan may be applicable, and that provide supplemental income. All
Agricultural Activities shall be carried out in accordance with applicable law,
including without limitation Jefferson County Code 18.10.010 a, and in compliance
with the purpose and terms of this Easement. Owner retains discretion over the
specific character and content of the agricultural management decisions and
practices necessary to identify, protect, preserve, maintain, and conserve in
perpetuity and to enhance, restore, or improve the Conservation Values consistent
with the purpose and terms of this Easement and any approved Stewardship Plan.
5.3. Owner further reserves the right to engage in rural enterprises that are
subordinate to and compatible with the Agricultural Activities and permitted by
applicable law. Examples of rural enterprises include but are not limited to, home
occupations or cottage industries, educational programming, professional offices
within the home, child- care facilities, nonprofit work, bed and breakfast lodging,
craft production, and firewood distribution. Enterprises which market petroleum or
chemical products are prohibited. Enterprises that require their own buildings are
generally prohibited unless they are needed to maintain the viability of the
agricultural operation and enterprise.
5.4. Designation and Limitation on Building Envelope Improvements. There shall
be no more than one (1) building envelope within the Property. A portion of the Property,
approximately 2.5 acres in area as shown on Exhibit B (Site Map) herein, is designated the
"Building Envelope" for Agricultural and Non -Agricultural uses and structures and for the
purpose of conducting any rural enterprise permitted by applicable law, Owner reserves the
right, subject to the limitation on Impervious Surfaces, to use, maintain, repair, reconstruct,
expand, or replace the existing single-family d residence and the right to install,
build, or construct, expand, enlarge, maintain, repair, replace, or decommission one
accessory dwelling unit, .q if permitted by
applicable law. Additionally, within the Building Envelope Granting Owner reserves the right,
subject to the limitation on Impervious Surfaces, to use, maintain, repair, reconstruct, expand
or replace existing agricultural outbuildings, and the right to install, build, or construct,
expand, enlarge, maintain, repair, replace, or decommission such additional outbuildings and
other structures as permitted by applicable law.- To the extent permitted by applicable law,
Granting owner also reserves the right to +a�install ,t -temporary
farmworki�er housing, provided that no temporary farmworker housing may utilize a
the soil to Agricultural Activities when the temporary structure is removed. --No more than
one single-family residence and, if permitted by applicable law, one accessory twe-dwelling
units a+. -is permitted within the Property under any circumstances and no dwelling unit,
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outbuilding, or other permanent structure is permitted outside the Building Envelope as
depicted on the Survey.
5.5. Subject to the limitation on Impervious Surfaces, wind, solar, or other
alternative energy systems may be installed within the Building Envelope for the
primary purpose of generating energy for the agricultural and residential needs of
the Property, and may include: foundations, concrete pads and footings; wind
turbine units; photovoltaic panels, guy wires, support fixtures, anchors and fences;
buildings needed for maintenance of wind turbine or other alternative energy
production units and maintenance and storage of related equipment; electrical
transformers and energy storage facilities; electric transformers, electric distribution
and transmission towers and lines either above ground or underground; substations
or switching facilities for the purpose of connecting to transmission system; private
roads providing access from public roads to the energy facilities; and any other
items necessary to the successful and secure use of any area of the Property within
the Building Envelope for the production of wind, solar, or other alternative source
of energy. If the energy produced within the Property by wind, solar, or other
alternative source(s) of energy exceeds the energy required for permitted uses,
Grantor may sell or transfer such excess energy. Outside the Building Envelope,
any structure must be reasonably necessary for Agricultural Activities (excluding
Accessory Uses), in compliance with the total impervious surface limit of Section
6.12, and any such structure may not permanently impair the availability of the soil
for agriculture. No Structure outside a Building Envelope may utilize a concrete
slab, poured concrete foundation, or similar components that would inhibit returning
the soil to Agricultural Activities if the structure is removed.
5.6. Agricultural Ponds and Water Distribution. Owner, with notice to Grantee as
provided in Section 7, may restore or construct ponds and distribution systems for
such ponds in accordance with an approved Stewardship Plan for use in connection
with Agricultural Activities.
5.7. Stewardship Activities. Owner may engage in, and allow others to engage in, any
activity to monitor, protect, maintain, and restore the Conservation Values of the
Property, including, without limitation, habitat restoration, enhancement, and
management activities ("Habitat Activities'), pursuant to an approved Stewardship
Plan covering the Property agreed to by the parties to the Stewardship Plan. All
Habitat Activities on the Property are to be carried out in compliance with the Purpose
and terms of this Easement.
5.8. Water Rights. Granting Owner and Grantee agree that any and all adjudicated
and unajudicated water rights associated with the Property, whether appropriative or
riparian, including but not limited to ditches and ditch rights, springs and spring rights,
reservoir and reservoir rights, wells and groundwater rights, water allotments, units or
shares, memberships, shares, or rights to receive water from any water company,
ditch company, or irrigation district, permits, certificates, or claims under RCW Chapter
90.14, and any other types of rights related to the ownership of water, appurtenant to
or customarily or historically used or associated with or upon the Property ("Water
Rights"), must be maintained and exercised, in accordance with all applicable laws
and regulations, on the Property to ensure the protection of the Conservation Values.
-8-
Owner may exercise the Water Rights by putting them to any beneficial use that is not
inconsistent with the Purpose and terms of this Easement, and that is not prohibited
herein. Owner shall not abandon, relinquish, or otherwise lose or forfeit, by action or
inaction, any of the Water Rights. Owner shall take such affirmative actions as may
be applicable to avoid such abandonment, relinquishment, loss or forfeiture, including
but not limited to seeking to place or enroll the Water Rights in the Washington State
trust water rights program on a temporary basis, provided that any acquisition of the
Water Rights by the State shall be expressly conditioned to limit its use to in -stream
purposes and its duration to a term no longer than 10 years. Any relinquishment, loss,
or forfeiture of the Water Rights shall not be deemed or construed to be a waiver of
Grantee's rights under this Easement or to defeat the Purpose of this Easement, and
shall not otherwise impair the validity of this Easement or limit its enforceability in any
way. Owner may maintain, repair, and if destroyed, reconstruct any existing facilities
relating to the Water Rights (such as ditches, wells, and reservoirs) with notice to
Grantee as provided for in Section 7, provided that such activities are carried out in
compliance with the Purpose and terms of this Easement.
5.9. Owner may maintain, repair, replace, or decommission structures, fences,
roads, driveway, ditches, including any ponds or ditches within the Property associated with
the Little Quilcene Irrigation Ditch, and other permanent improvements ("Improvements")
existing on the Property as of the Effective Date of this Easement, provided that such
activities related to existing Improvements are carried out in compliance with the Purpose
and terms of this Easement. Such Improvements include utility systems and underground
utility corridors that support the Improvements, such as electric power lines, septic systems,
water storage and delivery systems, telephone and communication cable systems, and the
like. Owner may maintain and repair the existing unpaved driveway that provides access to
the Building Envelope from a county road, as shown on the Survey. Within the Building
Envelope Owner may install, build, or construct, expand, enlarge, maintain, repair, replace,
or decommission wind, solar, or other alternative energy installations viothin the Rudd,.^
ERV819pe when^the primary purpose of which is generating energy for permitted uses on the
Property,, which may include foundations, concrete pads and footings; wind turbine units;
photovoltaic panels, guy wires, support fixtures, anchors and fences; buildings needed for
maintenance of wind turbine or other alternative energy production units and maintenance
and storage of related equipment; electrical transformers and energy storage facilities;
electric transformers, electric distribution and transmission towers and lines either above
ground or underground; substations or switching facilities for the purpose of connecting to
transmission system; and any other items necessary to the successful and secure use of any
area of the Property within the Building Envelope for the production of wind, solar, or other
alternative source of energy. Outside the Building Envelope, Owner shall not expand or
enlarge Improvements existing on the Property as of the Effective Date, or install, build, or
construct Improvements for alternative energy production.
5.10. Recreational or Educational Use. Owner may engage in, and allow others to
engage in, recreational or educational activities on the Property. Recreational uses
are limited to low -impact uses and types of passive recreation that do not require
site modification to accommodate motorized, mechanical, or electronic accessories.
All forms of developed or commercial recreation or recreation that adversely
impacts the Conservation Values of the Property are prohibited. All recreational
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and educational activities on the Property must be carried out in compliance with
the Purpose and terms of this Easement.
5.11. Emergencies. Owner may undertake any activities on the Property that are
necessary to protect health or safety or prevent significant property damage on the
Property or are required by and subject to compulsion of any governmental agency;
provided, however, that Owner must first reasonably attempt to notify Grantee prior
to taking such action. If Grantee cannot provide consent, with or without conditions,
within such time as is reasonable under the circumstances, Owner may proceed
with such action without consent.
6. PROHIBITED USES AND RESTRICTIONS ON PERMITTED USES
6.1. General. Any use of, or activity on, the Property inconsistent with the Purpose or
other terms of the Easement is prohibited, and Owner acknowledges and agrees
that it will not conduct, engage in, or permit any such use or activity. Without
limiting the generality of the foregoing, the following uses of, or activities on, the
Property, though not an exhaustive list of inconsistent uses or activities, are either:
(a) inconsistent with the Conservation Values and Purpose of this Easement and
prohibited herein; or (b) limited as provided herein to make such uses or activities
consistent with the Conservation Values and Purpose of this Easement.
6.2. Conversion to Incompatible Uses. Owner may not convert the Property to industrial
or suburban/residential development or to any other use that is incompatible with
protection of the Conservation Values of the Property.
6.3. Subdivision. Owner shall keep the Property in common ownership. Owner may not
legally or in a "de facto" manner subdivide the Property, which includes, without
limitation, any subdivision, short subdivision, platting, binding site plan,
testamentary division, or other process by which the Property is divided into lots.
6.4. Except as specifically provided for in the permitted uses and activities of Section 5
above, Owner may not place or construct any buildings, structures, or other
improvements of any kind on the Property outside of the Building Envelope;
provided, however, Owner may erect temporary structures, such as hoop houses,
that do not require a concrete slab, poured concrete foundation, or similar
components that would inhibit returning the soil to Agricultural Activities if the
structure is removed .
6.5. Feedlot. Owner may not establish or maintain a commercial feedlot on the
Property. For purposes of this Easement, 'commercial feedlot' means and refers to
a confined area or facility within which the land is not grazed or cropped annually,
and that is used to receive livestock that are confined solely for the purpose of
growing or finishing.
6.6. Land Alteration or Extraction. Owner may not conduct, engage in, or permit on the
Property the commercial mining or commercial extraction of soil, sand, gravel, oil,
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natural gas, fuel, or any other mineral substance or hydrocarbon, using any surface
mining method.
6.7. Soil Degradation or Water Pollution. Owner may not engage in any use or activity
on the Property that causes or is likely to cause significant soil degradation or
erosion or significant pollution of any surface or subsurface waters.
6.8. Manipulation of Water Courses. Owner may not drain, fill, dredge, ditch, or dike
wetland areas on the Property, or alter or manipulate ponds and water courses on
the Property, or create new wetlands, water impoundments, or water courses on the
Property, except as deemed necessary by Grantee, in its sole discretion, to
preserve or protect the Conservation Values, or as part of an approved Stewardship
Plan.
6.9. Release of Hazardous Substances. Owner may not dispose of or release (or permit
the disposal or release of) any Hazardous Substance on the Property. For
purposes of this section, 'release" means and includes any release, generation,
treatment, disposal, dumping, burying, or abandonment. The term "Hazardous
Substance" means and includes any substances, materials, or wastes that are
hazardous, toxic, dangerous, or harmful or are designated as, or contain
components that are, or are designated as, hazardous, toxic, dangerous, or harmful
and/or which are subject to regulation as hazardous, toxic, dangerous, or harmful or
as a pollutant by any Federal, state, or local law, regulation, statute, or ordinance,
including, without limitation, petroleum or any petroleum product. Any storage of
Hazardous Substances must be in accordance with Federal, state, and local law.
6.10. Commercial Signage. Owner may not place or erect any commercial signs,
billboards, or other advertising material on the Property except as related to
agricultural activities on the property.
6.11. Nonnative Plants. Owner may not intentionally introduce noxious weeds on the
Property, as defined and listed by Jefferson County or the State of Washington.
6.12. Chemicals. Except in accordance with an approved Stewardship Plan, Owner may
not use chemical pesticides, herbicides, fertilizers, or other chemicals to treat soil,
water, animals or vegetation on the Property.
6.13.
Limitation on Impervious Surfaces.
6.13.1. As used herein, "Impervious Surfaces" means hard surface areas that either
prevent or retard the entry of water into the soil mantle as under natural conditions
before development or that cause water to run off the surface in greater quantities or
at an increased rate of flow from the flow present under natural conditions before
development. Impervious Surfaces include, but are not limited to, roofs, walkways,
patios, driveways, parking lots, storage areas, areas that are paved or made of
packed or oiled gravel and other earthen materials, or other surfaces that similarly
impede the natural infiltration of surface and storm water. Impervious Surfaces do
not include an open uncovered flow control or storage area or water quality treatment
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facility, provided that the construction and maintenance of such area or facility is
consistent with the Purpose and terms of this Easement.
6.13.2. The total area of the Protected Property covered by Improvements of any
kind and Impervious Surfaces shall be limited to no more than four percent (4%) of
the area of the Property; provided, however, that minor unenclosed agricultural
improvements such as corrals, hayracks, headgates, fences, ditches, culverts, stock
tanks, or other minor agricultural structures ("Minor Agricultural Improvements") may
be constructed or placed on the Property and not count against this total impervious
surface limit. The total area covered by gravel shall be subject to this 4% limitation
unless Owner obtains prior consent from Grantee as provided in Section 7 to increase
the percentage of total surfaces covered by gravel above the 4% limitation.
6.14. Compliance with Regulatory Requirements. Owner shall conduct all reserved and
permitted uses and activities under this Easement to meet all requirements of
federal, state, and local statutes, rules, and regulations as they may be amended
from time to time, and in accordance with an approved Stewardship Plan.
6.15. Limitation on Transfers.
6.15.1. For purposes of this Section, "Transfer" includes but is not limited to any
sale, grant, lease, hypothecation, encumbrance, assignment, conveyance, or any
transaction the purpose of which is to affect a sale, grant, lease, hypothecation,
encumbrance, assignment, or conveyance.
6.15.2. Owner may not undertake or permit any Transfer of any rights in the
Property without prior notice to and consent of Grantee as provided for in Section 7;
provided, however, that such consent shall not be withheld unless Grantee
determines that the proposed Transfer would be inconsistent with the Purpose and
terms of this Easement.
7. NOTICE AND CONSENT
7.1. To the extent required for compliance with Section 1.170A-14(g)(5)(ii) of the
Treasury Regulations, and only to the extent such activity is not otherwise subject to
review under this Easement, Owner agrees to notify Grantee before undertaking
any reserved right, the exercise of which may have an adverse impact on the
Conservation Values of the Property.
7.2. The following require notice to but do not require consent of Grantee: i) Any
mortgage, deed of trust, or similar document providing security for an indebtedness
of Owner, provided, however, that such security interest is to be subject and
subordinate to this Easement; ii) leases for telecommunication installations or
alternate energy installations within the Building Envelope; or iii) any gift, bargain,
sale, or devise of fee simple absolute title to the Property.
7.3. Notice.
7.3.1. Grantee. Certain provisions of this Easement require Grantee to give notice
to Owner prior to undertaking certain activities. Whenever such notice is required,
and no other timeline for notice is set forth elsewhere in this Easement, Grantee is
to provide such notice in writing not less than 90 days prior to the date Grantee
intends to undertake the use or activity in question.
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7.3.2. Owner. Certain provisions of this Easement require Owner to give notice to
Grantee prior to undertaking certain permitted uses and activities (e.g., Sections
5.3, 5.5, and 6.18.2). The purpose of requiring Owner to notify Grantee prior to
undertaking these permitted uses and activities is to afford Grantee an adequate
opportunity to ensure that the use or activity in question is designed and carried out
in a manner consistent with the Purpose of this Easement. Whenever such notice
is required, and no other timeline for notice is set forth elsewhere in this Easement,
Owner is to provide such notice in writing not less than 90 days prior to the date
Owner intends to undertake the use or activity in question. The notice is to describe
the nature, scope, design, location, timetable, and any other material aspect of the
proposed use or activity in sufficient detail to permit Grantee to make an informed
judgment as to its consistency with the terms of this Easement and the Purpose
thereof.
7.4. Consent.
7.4.1. Consent Not Unreasonably Withheld. Wherever, in this Easement, a Party's
consent is required, such consent may be withheld only upon a reasonable
determination by the consenting party that the action as proposed would be
inconsistent with the Purpose or terms of this Easement and cannot be modified to
make the proposed action consistent with the Purpose and terms of this Easement.
Any consent may include reasonable conditions consistent with the Purpose and
terms of this Easement that must be satisfied in undertaking the proposed action,
use, or activity.
7.4.2. Timeline for Consent. Whenever, in this Easement, Owner's or Grantee's
consent is required, and no other timeline for consent is set forth elsewhere in this
Easement, the party whose consent is required must grant or withhold its consent in
writing within the following time periods:
7.4.2.1. Owner. Where consent by Owner is required under this Easement,
Owner must either grant or withhold its consent within 90 days of receipt of a written
request by certified mail for consent.
7.4.2.2. Grantee. Where consent by Grantee is required under this
Easement, Grantee shall grant or withhold its consent within 90 days of receipt of a
written request by certified mail for consent.
7.4.3. Failure to Grant or Deny Consent Within the Required Time. When consent
is required under this Easement, and when such consent is not granted or denied
within the time period and manner set forth in this Section 7, the Parties agree that
failure to grant or withhold consent within the required time on any proposed action,
use, or activity shall not be deemed or construed to be a waiver of Grantee's rights
under this Easement with respect to any future proposed action, use, or activity.
7.5. Optional consultation. If Owner is unsure whether a proposed use or activity is
prohibited by this Easement, Owner may consult Grantee by providing written
notice to Grantee describing the nature, scope, design, location, timetable, and any
other material aspect of the proposed use or activity in sufficient detail to permit
Grantee to make an informed judgment as to its consistency with the Purpose of
this Easement and to provide comments thereon to Owner. This Section 7.4 does
not itself impose a requirement of prior consent of the activity described in any such
notice.
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7.6. Addresses for Notices. Any notice, demand, request, consent, approval or
communication that either Owner or Grantee desires or is required to give to the
other must be in writing and be personally delivered, or sent by first class mail with
postage prepaid, or transmitted by electronic means, with a copy of such electronic
transmittal bearing the date of transmittal retained by the transmitter, to the address
or telephone number provided by either party from time to time.
To Owner:
Mark Colby
Melissa Hanako Myers
10 Old State Highway
Quilcene, Washington 98376
Cell Phone: (360) 774-1010
Telephone:(360) 765-3429
To Grantee: Jefferson Land Trust
1033 Lawrence Street
Port Townsend WA 98368
Telephone: (360) 379-9501
Fax: (360) 379-9897
8. DISPUTE RESOLUTION
8.1. Preventive Discussions. Owner and Grantee will promptly give the other party
notice of problems or concerns arising in connection with the other's actions under
this Easement or the use of or activities or conditions on the Property, and will meet
as needed, but no later than 15 business days after receipt of a written request for a
meeting, to minimize the same.
8.2. Mediation. If the Parties disagree as to the consistency of any proposed use or
activity with the Purpose or terms of this Easement and the Parties are unable to
resolve such disagreement through unassisted preventive discussions between
themselves, and if Owner agrees not to proceed with the use or activity pending
resolution of the dispute, Owner or Grantee may refer the dispute to mediation by
request made in writing upon the other. Within ten business days of the receipt of
such a request, the parties to the mediation ("Mediation Parties") shall select a
single impartial mediator. Mediation shall then proceed in accordance with the
following guidelines:
8.2.1. Purpose. The purpose of the mediation is to: (a) promote discussion among
the Mediation Parties; (b) assist the Mediation Parties to develop and exchange
pertinent information concerning the issues in dispute; and (c) assist the Mediation
Parties to develop proposals which enable them to arrive at a mutually acceptable
resolution of the controversy. The mediation is not intended to result in any express
or de facto modification or amendment of the terms, conditions or restrictions of this
Easement.
8.2.2. Participation. The mediator may meet with the Mediation Parties and their
counsel jointly or ex parte. The Mediation Parties agree that they will participate in
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the mediation process in good faith and expeditiously, attending all sessions
scheduled by the mediator. Representatives of all Mediation Parties with settlement
authority will attend mediation sessions as requested by the mediator.
8.2.3. Confidentiality. All information presented to the mediator shall be deemed
confidential and shall be disclosed by the mediator only with the consent of the
Mediation Parties or their respective counsel. The mediator shall not be subject to
subpoena by any party. No statements made or documents prepared for mediation
sessions shall be disclosed in any subsequent proceeding or construed as an
admission of a party. Records of mediation communications shall be exempt from
the requirements of Chapter 42.56 RCW (Washington State Public Records Act) to
the extent provided for in Chapter 7.07 RCW (Washington State Uniform Mediation
Act).
8.2.4. Time Period. Neither party shall be obligated to continue the mediation
process beyond a period of 60 days from the date of receipt of the initial request or
if the mediator concludes that there is no reasonable likelihood that continuing
mediation will result in a mutually agreeable resolution of the dispute.
8.2.5. Costs. The costs of the mediator shall be borne equally by the Parties; the
Mediation Parties shall bear their own expenses, including attorney's fees,
individually.
8.3. Arbitration._ The Parties may by mutual agreement submit disputed matters to
arbitration upon such rules of arbitration as the Parties may agree.
9. GRANTEE'S REMEDIES
9.1. Notice of Non -Compliance. If Grantee determines that Owner is in violation of the
terms of this Easement or that a violation is likely to occur, Grantee shall give
written notice to Owner of such violation and demand corrective action sufficient to
cure the violation and, where the violation involves injury to the Property resulting
from any use or activity inconsistent with the Purpose or terms of this Easement, to
restore the portion of the Property so injured to its prior or potential condition in
accordance with a plan to which Grantee has given consent in writing.
9.2. Owner's Failure to Respond. Grantee may bring an action as provided in Section
9.3 if Owner:
9.2.1. Fails to cure the violation within 30 days after receipt of notice thereof from
Grantee;
9.2.2. Under circumstances where the violation cannot reasonably be cured within
the 30 day period, fails to begin curing such violation within the 30 day period; or
9.2.3. Fails to continue diligently to cure such violation until finally cured.
9.3. Grantee's Action. Grantee may bring an action at law or in equity, or both, in a
court of competent jurisdiction to enforce the terms of this Easement, to enjoin the
violation, ex parte as necessary and as allowed under the applicable civil rules, by
temporary or permanent injunction, to recover any damages to which it may be
entitled for violation of the terms of this Easement or injury to any of the
Conservation Values protected by this Easement, including damages for the loss of
any of the Conservation Values; and to require the restoration of the Property to the
condition that existed prior to any such injury. Without limiting Owner's liability
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therefor, Grantee, in its sole and absolute discretion, may apply any damages
recovered to the cost of undertaking any corrective action on the Property. All such
actions for injunctive relief may be taken without Grantee being required to post
bond or provide other security.
9.4. Immediate Action Required. Notwithstanding any other provision of this Easement,
if Grantee, in its sole and absolute discretion, determines that circumstances
require immediate action to prevent or mitigate significant damage to the
Conservation Values, Grantee may pursue its remedies under this Section 9 without
prior notice to Owner, without participation in dispute resolution as provided for in
Section 8, or without waiting for the period provided for cure to expire.
9.5. Nature of Remedy. Grantee's rights under this Section 9 apply equally in the event
of either actual or threatened violations of the terms of this Easement. Owner
agrees that Grantee's remedies at law for any violation of the terms of this
Easement are inadequate, and that Grantee shall be entitled to the injunctive relief
described in this Section 9, both prohibitive and mandatory, in addition to such other
relief to which Grantee may be entitled, including specific performance of the terms
of this Easement, without the necessity of proving either actual damages or the
inadequacy of otherwise available legal remedies. Grantee's remedies described in
this Section 9 shall be cumulative and shall be in addition to all remedies now or
hereafter existing at law or in equity. The provisions of Section 9.5 shall not be
interpreted to preclude Grantee from obtaining injunctive relief.
9.6. Damages. Inasmuch as the actual damages to the Conservation Values that could
result from a breach of this Easement by Owner would be impractical or extremely
difficult to measure, the Parties agree that the money damages Grantee is entitled
to recover from Owner shall be, at Grantee's election, the higher of: (i) the amount
of economic gain realized by Owner from violating the terms of the Easement; (ii)
the cost of restoring any Conservation Values that have been damaged by such
violation; (iii) an amount equal to the fair market value of this Easement, which shall
be determined as provided in Section 11.3 and distributed as provided in Section
11.4; or (iv) an amount equal to the total project cost as specified in any written
agreement with an entity that provided funding for the acquisition of this Easement,
with interest due and payable from the date of breach at the rate provided for in
RCW 43.17.240, as maybe amended from time to time. In the event Grantee
chooses the second of these four measures, Owner agrees to allow Grantee, its
agents or contractors to enter upon the Property and conduct restoration activities.
In the event that Grantee chooses the third or fourth of these four measures,
Grantee agrees that it will follow the dispute resolution process and remedies
described in Sections 8 or 9 before exercising this right, unless legally compelled to
do otherwise. Any amounts due and owing Grantee under this paragraph shall be
due and owing within 120 days of receiving a written demand for repayment by
Grantee.
9.7. Costs of Enforcement. In the event Owner or Grantee finds it necessary to bring an
action at law or other proceeding against the other party to enforce or interpret any
of the terms, covenants, or conditions of this Easement, the prevailing party in any
such action or proceeding shall be paid all costs and reasonable attorneys' and
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consultants' fees by the other party and all such costs and attorneys' and
consultants' fees shall be included in any judgment secured by such prevailing
party.
9.8. Grantee's Discretion. Enforcement of the terms of this Easement shall be at the
discretion of Grantee, and any forbearance by Grantee to exercise its rights under
this Easement in the event of any breach of any terms of this Easement by Owner
shall not be deemed or construed to be a waiver by Grantee of such term or of any
of Grantee's rights under this Easement. No delay or omission by Grantee in the
exercise of any right or remedy upon any breach by Owner shall impair such right or
remedy or be construed as a waiver.
9.9. Waiver of Certain Defenses. Granting Owner acknowledges that it has carefully
reviewed this Easement and has consulted with and been advised by legal counsel
of its terms and requirements. In full knowledge of the provisions of this Easement,
Owner hereby waives any claim or defense it may have against Grantee or its
successors in interest under or pertaining to this Easement based upon
abandonment, adverse possession, or prescription relating to the Property or this
Easement. Except for the foregoing, Owner specifically retains any and all rights it
has under the law as owner of the Property, including, without limitation, the right to
bring claims against Grantee for any breach by Grantee of the terms of this
Easement.
9.10. Acts Beyond Owner's Control. Nothing contained in this Easement may be
construed to entitle Grantee to bring any action against Owner to abate, correct, or
restore any condition on the Property or to recover damages for any injury to or
change in the Property resulting from actions by a trespasser upon the Property or
causes beyond Owner's control, including, without limitation, natural disaster, fire,
flood, storm, pest infestation, earth movement, and climate change, and from any
prudent action taken by Owner under emergency conditions to prevent, abate, or
mitigate significant injury to the Property resulting from such causes. In the event
the terms of this Easement are violated by acts of trespassers, and Owner has not
undertaken suit itself, Owner agrees, at Grantee's option, to assign its right of action
to Grantee or to appoint Grantee its attorney in fact, for purposes of pursuing
enforcement action against the responsible parties.
9.11. Compliance Certificates. Upon request by Owner, Grantee shall, as soon as
possible and no later than 30 days after receipt of such request, execute and deliver
to Owner any document, including an estoppel certificate, which certifies, to the
best of Grantee's knowledge, Owner's compliance or lack thereof with any
obligation of Owner contained in this Easement and otherwise evidences the status
of this Easement as requested by Owner. Such certification shall be limited to the
condition of the Property as of Grantee's most recent inspection. If Owner requests
more current documentation, Grantee must conduct an inspection, at Owner's
expense, within 45 days of receipt of Owner's written request and payment therefor.
10. LIABILITIES, TAXES, AND ENVIRONMENTAL COMPLIANCE
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10.1. Liabilities and Insurance. Owner retains all responsibilities and shall bear all costs
and liabilities of any kind related to the ownership, operation, upkeep, and
maintenance of the Property, including the maintenance of adequate liability
insurance coverage. Such insurance shall include Grantee's interest, name
Grantee as an additional insured, and provide #eat least 30 days® notice to
Grantee before cancellation and that the act or omission of one insured will not
invalidate the policy as to the other insured party. The Parties release and relieve
the other, and waive their entire right to recovery for loss or damage to the extent
that the loss or damage is covered by the injured party's insurance. This waiver
applies whether or not the loss is due to the negligent acts or omissions of Owner or
Grantee. Owner remains solely responsible for obtaining any applicable
governmental permits and approval for any construction or other activity or use
permitted by this Easement, and all such construction or other activity or use shall
be undertaken in accordance with all applicable Federal, state, and local laws,
regulations, and requirements. Owner shall keep the Property free of any liens
arising out of any work performed for, material furnished to, or obligations incurred
by Owner; provided, however, that the Property shall be deemed to be free of such
liens if i) Owner or Grantee, as the case may be, is diligently challenging the
application of such liens to the Property; or ii) such liens are subordinated to this
Easement and do not require any action or inaction inconsistent with the Purpose
and terms of this Easement.
10.2. Taxes. Owner must pay before delinquency all taxes, assessments, fees, charges
of whatever description levied on or assessed against the Property by competent
authority (collectively "taxes"), including any taxes imposed upon, or incurred as a
result of, this Easement, and must furnish Grantee with satisfactory evidence of
payment upon request.
10.3. Liability. Each party to this Easement is responsible for its own acts and/or
omissions and those of its members, directors, officers, employees, agents, and
contractors. No party to this Easement is responsible for the acts and/or omissions
of entities or individuals not a party to this agreement.
10.4. Representations and Warranties. Granting Owner represents and warrants that, to
the best of Granting Owner's knowledge without the duty of investigation:
10.4.1. Granting Owner and the Property are in compliance with all Federal, state,
and local laws, regulations, and requirements applicable to the Property and its use;
10.4.2. There has been no release, dumping, burying, abandonment or migration
from off-site on the Property of any substances, materials, or wastes that are or are
designated as, hazardous, toxic, dangerous, or harmful or contain components that
are, or are designated as, hazardous, toxic, dangerous, or harmful and/or that are
subject to regulation as hazardous, toxic, dangerous, or harmful by any federal,
state or local law, regulation, statute, or ordinance;
10.4.3. Neither Granting Owner nor Granting Owner's predecessors in interest
have disposed of any hazardous substances off-site, nor have they disposed of
substances at sites designated or proposed to be designated as federal Superfund
(42 U.S.C. § 9601 et seq.) or state Model Toxics Control Act (RCW 70.105D.010 et
seq.) ("MTCA") sites; and
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10.4.4. There is no pending or threatened litigation affecting the Property or any
portion of the Property that will materially impair the Conservation Values of any
portion of the Property. No civil or criminal proceedings have been instigated or are
pending against Granting Owner or its predecessors by government agencies or
third parties arising out of alleged violations of environmental laws, and neither
Granting Owner nor its predecessors in interest have received any notices of
violation, penalties, claims, demand letters, or other notifications relating to a
breach of environmental laws.
10.5. Remediation. If, at any time, there occurs, or has occurred, a Release in, on, or
about the Property of a Hazardous Substance, Owner agrees to take or compel
responsible third parties to take all steps required under applicable law and
necessary to assure its containment and remediation, including any cleanup that
may be required (except that the use of institutional controls shall not be allowed
without Grantee's consent), unless the Release was caused by Grantee, in which
case Grantee shall be responsible for such remediation to the extent the Release
was caused by Grantee. At its discretion, Grantee may assist Owner in compelling
third parties to contain and remediate any such Release.
10.6. Control. Nothing in this Easement shall be construed as giving rise, in the absence
of a judicial decree, to any right or ability in Grantee to exercise physical or
managerial control over the day-to-day operations of the Property, or any of
Owner's activities on the Property, or otherwise to become an operator with respect
to the Property within the meaning of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended ("CERCLA").
11. SUBSEQUENT TRANSFER OR EXTINGUISHMENT
11.1. Extinguishment.
11.1.1. If circumstances arise in the future that render the Purpose of this
Easement impossible to accomplish, this Easement can only be terminated or
extinguished, whether in whole or in part, by judicial proceedings in a court of
competent jurisdiction.
11.1.2. The amount of the proceeds to which Grantee shall be entitled, after the
satisfaction of prior claims, from any sale, exchange, or involuntary conversion of
all or any portion of the Property subsequent to such termination or
extinguishment, shall be determined, unless otherwise provided by Washington
law at the time, in accordance with Section 11.3. Grantee shall use all such
proceeds in a manner consistent with the Purpose of this Easement.
11.1.3. In granting this Easement, Granting Owner has considered the fact that
any use of the Property that is prohibited by this Easement, or any other use as
determined to be inconsistent with the Purpose of this Easement, may become
economically more valuable than permitted uses. It is the intent of both Granting
Owner and Grantee that such circumstances shall not justify the termination or
extinguishment of this Easement. Owner's inability to carry on any or all of the
permitted uses, or the unprofitability of doing so, shall not impair the validity of
this Easement or be considered grounds for its termination or extinguishment.
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11 .2. Condemnation. If the Easement is taken, in the whole or in the part, by the exercise
of the power of eminent domain, Grantee shall be entitled to compensation in
accordance with Section 11.3, for the value of the Easement taken; and Owner shall
be entitled to compensation in accordance with applicable law for the value of the
underlying fee title and improvements taken. In the event that Section 11.3. violates
applicable law, then the proceeds to Owner and Grantee shall be divided in
accordance with applicable law.
11.3. Valuation. This Easement constitutes a real property interest immediately vested in
Grantee. For purposes of this Section, the Parties stipulate that this Easement has a
fair market value determined by multiplying (a) the fair market value of the Property
unencumbered by the Easement as vacant, at the time of termination or
extinguishment, as determined by an appraisal by a qualified appraiser, by (b) 27.8%.
For purposes of this Section, the Parties agree that the ratio of the value of the
Easement to the value of Grantor's property unencumbered by the Easement is
evidenced by a qualified real property appraisal prepared by Chad Johnson and
Leslee Gilmore of SH&H Valuation, dated May 4, 2016; said document on file
with Grantee. This ratio 1,shall remain constant.
11.4. Distribution of Proceeds. In the event of extinguishment of this Easement pursuant to
Section 11.1, condemnation of this Easement pursuant to Section 11.2, or damages
received by Owner in an amount equal to the fair market value of this Easement
pursuant to Section 9.6, any proceeds attributable to the value of the Easement shall
be proportionately distributed pursuant to the terms of the grant agreement with
Jefferson County and Grantee shall be entitled to a portion of the proceeds at least
equal to the gift portion of the proportionate value of this Easement. For purposes of
this section, the Parties stipulate that $XX,XXX of monetary consideration for the
conveyance of this Easement has been provided by Jefferson County, that $XXXX of
the monetary consideration has been provided by fundraising from the community-,
and that Granting Owner has donated to Grantee the remainder of the fair market
value of this Easement with the intent of making a gift to Grantee of the remainder of
said fair market value which is used as match for the Jefferson County grant funding.
11.5. Subsequent Transfers. Owner agrees to: (1) incorporate by express 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; and (2) describe this Easement in
and append it to, any executory contract for the transfer of any interest in the
Property. Owner further agrees to give written notice to Grantee of the transfer of any
interest at least 30 days prior to the date of such transfer. Such notice to Grantee
shall include the name, address, and telephone number of the prospective transferee
or such transferee's representative. The failure of Owner to perform any act required
by this Section 11 shall not impair the validity of this Easement or limit its
enforceability in any way.
12.AMENDMENT
If circumstances arise under which an amendment to or modification of this
Easement would be appropriate, the Parties may jointly amend this Easement in
accordance with Grantee's policies and the relevant standards and practices of the
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Land Trust Alliance, provided that no amendment shall be allowed that will affect the
qualification of this Easement or the status of Grantee under any applicable laws,
including without limitation RCW 64.04.130, Chapter 84.34 RCW, or Section 170(h)
of the IRS Code of 1986, as amended (or any successor provisions then applicable).
Any such amendment shall be for conservation purposes consistent with the original
Purpose of this Easement; shall not affect its perpetual duration; shall not result in
any reduction of conservation values; and shall be recorded in the official records of
Jefferson County, Washington, and any other jurisdiction in which such recording is
required.
13.ASSIGNMENT
13.1. Assignment.
13.1.1. Grantee's Interest. Grantee's interest in this Easement is transferable, but
Grantee may assign its rights and obligations under this Easement only to an
organization that is a qualified holder at the time of transfer under RCW 64.04.130,
as amended. As conditions of such transfer, Grantee shall require that assignee (a)
continue to carry out the Purpose of this Easement and (b) comply with the terms of
any agreement with a funding source for the acquisition of this Easement, if any.
Grantee shall notify Owner and Jefferson County in writing, at Owner's last known
address, in advance of such assignment. The assignment shall not be valid without
such notice; provided, however, that the failure of Grantee to give such notice shall
not impair the validity of this Easement or limit its enforceability in any way.
13.2. Rights and Obligations Upon Transfer. The Grantee or Owner's rights and
obligations under this Easement terminate upon transfer of the party's interest in the
Property or this Easement, as the case may be, except that liability for acts or
omissions occurring prior to transfer shall survive transfer.
13.3. Succession. If at any time it becomes impossible for Grantee to ensure compliance
with the covenants contained herein and Grantee has not named a successor
organization, or the Grantee shall cease to exist, then Grantee's rights and duties
hereunder shall become vested and fall upon:
13.3.1. The Trust for Public Land; or
13.3.2. Such other entity, with purposes similar to Grantee's, authorized to acquire
and hold conservation easements under RCW 64.04.130 and RCW 84.34.250 (or
any successor provisions then applicable), and a qualified organization under
Section 170(h) of the Internal Revenue Code of 1986, as amended (or any
successor provisions then applicable); provided that if such vesting in any of the
entities named above is deemed to be void under the Rule Against Perpetuities, the
rights and obligations under this Easement shall vest in such organization as a court
having jurisdiction shall direct, pursuant to the applicable Washington law and the
Internal Revenue Code and with due regard to the Purpose of this Easement.
14. RECORDATION
Grantee shall record this instrument immediately upon execution in the official records of
Jefferson County, Washington, and in any other appropriate jurisdictions, and may re-
record it at any time as may be required to preserve its rights in this Easement.
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15. NO MERGER
In the event that Grantee acquires all or a portion of the fee title to the Property, it is the
intent of the Parties that no merger of title shall take place that would merge the
restrictions of this Easement with fee title to the Property and thereby eliminate them, and
that the restrictions on the use of the Property, as embodied in the Easement, shall, in
the event that all or a portion of title become vested in Grantee, become and remain
permanent and perpetual restrictions on the use of the Property. Grantee covenants to
do what is required to prevent merger of title, including, if necessary, assignment of the
Easement to an appropriate third party pursuant to Section 13.1.
16. GENERAL PROVISIONS
16.1. Effective Date. The Effective Date of this Easement shall be the date on which the
Granting Owner executed this Easement.
16.2. Governing Law and Venue. The laws of the State of Washington and applicable
federal law shall govern the interpretation and performance of this Easement. By
executing this Easement, Granting Owner acknowledges the jurisdiction of the courts
of the State of Washington in this matter.
16.3. 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. If any provision in this instrument is found to be ambiguous, an
interpretation consistent with the Purpose of this Easement that would render the
provision valid shall be favored over any interpretation that would render it invalid.
16.4. Severability.
16.4.1. Except as provided in Section 16.4.2 below, if any provision of this
Easement, or the application thereof to any person or circumstance, is found to be
invalid or unenforceable by any court of competent jurisdiction or is superseded by
state or Federal legislation, rules, regulations or decision, the remainder of the
provisions of this Easement, or the application of such provision to persons or
circumstances other than those as to which it is found to be invalid or unenforceable,
as the case may be, shall not be affected thereby.
16.4.2. If any material provision of this Easement, or the application thereof to any
person or circumstance, is found to be invalid or unenforceable by any court of
competent jurisdiction or is superseded by state or Federal legislation, rules,
regulations or decision, so that the intent of these provisions is frustrated, the parties
agree to immediately negotiate a replacement provision to fulfill the intent of the
superseded provisions consistent with the Purpose of this Easement and applicable
law.
16.5. Entire Agreement. This instrument sets forth the entire agreement of the Parties with
respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged
herein. No alteration or variation of this instrument shall be valid or binding unless
contained in an amendment that complies with Section 12.
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16.6. No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Owner's title in any respect.
16.7. "Granting Owner" - "Owner" - "Grantee". The terms "Granting Owner" and "Owner",
wherever used in this instrument, and any pronouns used in the place thereof, means
and includes the above-named Granting Owner and its successors and assigns, and
the term "Grantee", wherever used in this instrument, and any pronouns used in the
place thereof, means and includes above-named Grantee and its successors and
assigns. The term "Owner" shall also include any party taking ownership of the
Property, or any portion thereof, subsequent to the foreclosure of any mortgage or
deed of trust.
16.8. Successors. The covenants, terms, conditions, and restrictions of this Easement
shall be binding upon, and inure to the benefit of, the Parties and their respective
successors and assigns, and to any party taking ownership of the Property, or any
portion thereof, subsequent to the foreclosure of any mortgage or deed of trust, and
shall continue as a servitude running in perpetuity with the Property.
16.9. Captions. The captions in this instrument have been inserted solely for convenience
and ease of reference and are not a part of this instrument and shall have no effect
upon construction or interpretation.
16.10. Counterparts. The Parties may execute this instrument in two or more counterparts,
which shall, in the aggregate, be signed by both Parties; each counterpart shall be
deemed an original instrument as against any party who has signed it. In the event of
any disparity between the counterparts produced, the recorded counterpart shall be
controlling.
16.11. Authority. The individuals signing below, if signing on behalf of any entity, represent
and warrant that they have the requisite authority to bind the entity on whose behalf
they are signing.
16.12. Recitals. The Parties agree that the terms and recitals set forth in Section 1 (among
other terms of this Easement) are material to this Easement, and that each Party has
relied on the material nature of such terms and recitals in entering into this Easement.
Each term and recital set forth in Section 1 is fully incorporated into this Easement.
17. SCHEDULE OF EXHIBITS
Exhibit A. Legal Description of Property.
Exhibit B Site Map
TO HAVE AND TO HOLD unto Grantee, its successors and assigns forever.
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IN WITNESS WHEREOF, the undersigned Granting Owners have executed this instrument
this day of , 2016.
Mark Colby
Melissa Hanako Myers
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Jefferson Land Trust does hereby accept the above Grant Deed of Conservation Easement.
Jefferson Land Trust, a Washington nonprofit corporation
By:
Richard Tucker, Executive Director
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STATE OF WASHINGTON )
) ss.
COUNTY OF JEFFERSON )
I certify that I know or have satisfactory evidence that MARK COLBY and MELISSA
HANAKO MYERS are the persons who appeared before me and acknowledged that they
signed this instrument as their free and voluntary act for the uses and purposes mentioned in
the instrument.
Dated:
otary Public
rint Name
y commission expires
(Use this space for notarial stamp/seal)
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STATE OF WASHINGTON )
) ss.
COUNTY OF JEFFERSON )
I certify that I know or have satisfactory evidence that RICHARD TUCKER is the
person who appeared before me, and said person acknowledged that he/she signed this
instrument, on oath stated that he/she was authorized to execute the instrument and
acknowledged it as the Executive Director of Jefferson Land Trust to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
Dated:
otary Public
rint Name
y commission expires
Use this space for notarial stamp/seal)
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EXHIBIT A
Legal Description of Property
Parcel A:
That portion of Lot 10 of Bishop's Subdivision of the Northeast quarter of Section
14, Township 27 North, Range 2 West, W.M., as per plat recorded in Volume 2 of
Plats, page 116, records of Jefferson County, Washington, described as follows:
Beginning at the Southeast corner of said Lot;
Thence West along the South line of said Lot 331 feet;
Thence North, parallel with the East line of said Lot 755.5 feet
Thence East 331 feet to the East line of said Lot;
Thence South along said East line 755.5 feet to the Point of Beginning;
EXCEPT Cemetery Road along the South boundary.
Parcel B:
Lot 2 of Bishop's Subdivision of the Northeast quarter of Section 14, Township 27
North, Range 2 West, W.M., as per plat recorded in Volume 2 of Plats, page 116,
records of Jefferson County, Washington;
EXCEPT that portion, if any, for Old State Hwy. (Co.) formerly known as Leland-
Quilcene Road.
Parcel C:
Lot 3 of Bishop's Subdivision of the Northeast quarter of Section 14, Township 27
North, Range 2 West, W.M., as per plat recorded in Volume 2 of Plats, page 116,
records of Jefferson County, Washington;
EXCEPT that portion, if any, for Old State Hwy. (Co.) formerly known as Leland-
Quilcene Road;
ALSO EXCEPT that portion, if any, for State Hwy. 101.
All situate in Jefferson County, Washington.
A-1
EXHIBIT B
Site Map