HomeMy WebLinkAbout037David W. Johnson
From: Don Coleman [don @pleasantharbormarina.com]
Sent: Thursday, June 02, 2011 10:08 AM
To: David W. Johnson
Cc: 'Garth Mann'; 'Cooke, John T. (JT) (Perkins Coie)'; 'Jeff Holland'; peckassoc@comcast. net;
'Diane Coleman'
Subject: Tribal Conservation Easement Agreement
Attachments: Deed of Conservation Easement 6-16-09 w -tracking. DOC
Hi David Wayne,
Attached is the conservation easement agreement draft we presented to the Skokomish tribe January 20 2011.
Randy Lumper of the Skokomish tribe e-mailed me Feb 18 2011 that the Tribal Council was OK with moving forward with
the agreement however there were some questions regarding exhibits and exact boundary description.
I've been told "we will be approaching the tribe with a slightly different proposal whereby we would record a
substantially similar restrictive covenant on the property in question, but instead of providing a deed of conservation
easement to the Tribe we intend to simply deed the property to the tribe at a point to be determined in the future". A
revised document has not yet been presented to the Skokomish Tribe.
don
Don Coleman
Pleasant Harbor Marina
Maintenance and Security supervisor
don (ZODleasantharbormarina.com
Cell: 206-714-1482
DEED OF CONSERVATION EASEMENT
THIS DEED OF CONSERVATION EASEMENT ("Deed" or "Conservation Easement")
is made this day of , 200 , by Pleasant Harbor Marina and Golf
Resort, LLP, having an address at 2700 NW Pine Gene Dfi,,o lssa, uah WA 9802-7-308913 U.S.
Hwy 101, Brinnon, WA 98320 ("Grantor"), in favor of the Skokomish Indian Tribe, having an
address at North 80 Tribal Center Road, Skokomish Nation, WA 98584 ("Grantee").
I. RECITALS
A. The Grantor is the fee simple owner of the real property (hereinafter called the
"Property"), comprised of one parcel of forested shoreline, beth -located in Jefferson County,
Washington consisting of acres, more or less, as described r-espeetively-in Exhibit
"A" and shown on Exhibit "B," which is attached to this Deed and incorporated in b3 -this
Conservation Easement.
B. The Grantor is also the fee simple owner of tide lands consisting acres, {Formatted: Indent Left: 0 First line 0 5'
more or less, adjacent to the Property as described in Exhibit "C" which is also attached to this
the -Deed (hereinafter called the "Tidelands").
C. The Grantor and the Grantee recognize that the preservation of private shoreline,
and the associated wildlife habitat are worthy of perpetual conservation. The Grantor has agreed
to transfer this Conservation Easement to the Grantee with the assurance that the following
conservation goals will be met;
• Prevent future conversion of shoreline to uses not compatible with maintaining
shoreline in its natural state.
• Sustain shoreline and the historic uses of shoreline.
• Assist in maintaining the culture and economies of rural communities through
sustaining natural shoreline landscapes.
• Maintain shoreline areas.
• Conserve and enhance shoreline quality associated with natural shorelines.
• Conserve and enhance wildlife habitat and maintain habitat connectivity within
forested shoreline.
D. The Property has substantial and significant conservation value. Conservation
values are of great importance to the Grantor and the Grantee, and their protection in accordance
with this Deed will yield a significant public benefit. The specific Conservation Values of the
Property are documented in the Baseline Documentation.
E. The parties intend to allow future uses of the Property that will maintain the
natural condition of the Property and allow for environmental education, cultural and
recreational opportunities, provided that such uses do not impair or interfere with the purposes of
this Deed.
Formatted Left Line spacing Exactly 10 pt
- -.. ....... ..... __ .... .
57577-0006/LEGAL16340734.2
F. To preserve and protect the conservation values of the Property described in this
Deed, Grantor desires to convey to the Grantee a perpetual conservation easement which is
recognized as a "qualified real property interest exclusively for conservation purposes" as
defined under Section 170(h) of the Internal Revenue Code of 1986, as amended ("Internal
Revenue Code").
G. The Grantee has agreed to accept this grant of certain interests in the Property
upon the condition and understanding that the intentions of the Grantor regarding the future uses
and preservation of the Property as expressed in this Deed shall be forever honored and that this
Conservation Easement shall run with the land and be enforced as against the Owner.
H. That the conservation values as set out in the Conservation Easement are met and
the Grantor has agreed to transfer the Tidelands to the Grantee for the sum of Ten ($10.00)
Dollars.
II. DEFINITION OF TERMS
For the purposes of this Deed, the following definitions of terms shall apply:
Baseline Documentation: The inventory of relevant physical and biological conditions
and physical improvement features of the Property, and which consists of reports, maps,
photographs and other documentation that provides, collectively, an accurate representation of
the Property at the time of the easement grant, and which is intended to serve as an objective
information baseline for monitoring compliance with the terms of this Deed. The Baseline
Documentation is further described in Article VIII. below. A copy of the Baseline
Documentation is on record with the Grantee. The Baseline Documentation is summarized in
Exhibit "D", attached hereto, and incorporated in this Deed by reference here and in Exhibit "D."
Conservation Values: The natural forest area, fish and wildlife habitat, natural, scenic,
open space, cultural, geological, historical, and educational values contained on the Property.
Deed or Conservation Easement: This Deed of Conservation Easement, as recorded
from time to time.
Development: The Master Planned Resort known as Pleasant Harbor Marina and Golf
Resort located adjacent to the Property.
Easement Percentage: As to the Property or any portion thereof, the ratio (expressed as
a percentage) of the fair value of the Conservation Easement over the Property or such portion
(as such value has been agreed between Grantor and Grantee as of the date of this Deed) to the
fair market value of the Property or such portion, unencumbered by the Conservation Easement,
as of the date of this Deed.
Existing: Any road, activity, use, lease, statute, easement, or building in effect prior to
the date of Grantor's signing hof this Deed.
57577-0006/LEGAL 163407342
Grantee: The holder of the Conservation Easement granted over the property; in this
case the Skokomish Indian Tribe.
Grantor: The current owner of the Property; in this case Pleasant Harbor Marina and
Golf Resort, LLP.
Hazardous Materials: Any harmful or toxic material or waste which is subject to any
federal, State, or local law or regulation.
Liaison Team: A team consisting of not more than three representatives of Owner and
three representatives of Grantee. The Liaison Team will monitor the Conservation Easement for
compliance at least once a year and review the MPR at least once every five years. Liaison
Team selection and responsibilities are further described in Paragraphs [neither of these
paragraphs exist, what was intended?] H44 ".,a q-. .2- below.
MPR: Ordinance No. 01-0128-08 adopted by Jefferson County on January 28, 2008 to
amend the Comprehensive Plan under the Growth Management Act to include a new Brinnon
Master Planned Resort.
New: Any road, activity, use, lease, statute, easement, or building that occurs after the
date of Grantor's signing hof this Deed.
Owner: Pleasant Harbor Marina and Golf Resort, LLP as of and after the date of the
conveyance hereunder and their successors and assigns in ownership of the fee title to subject
Property. This term is used where appropriate in conjunction with description of the future rights
and responsibilities of the owners of the subject property after the conveyance under this
Conservation Easement.
Permitted Uses: All uses and activities that are permitted in accordance with Article VI
of this Deed.
Prohibited Uses: All uses of and activities on the Property that are expressly prohibited
in this Deed.
Property: The legally described real estate subject to this Deed as described in Exhibit
"A
Shoreline Registration Plan: Any plan or plans approved by Jefferson County
regarding a 200 foot minimum open space buffer along the south shoreline fronting Hood Canal.
III. CONVEYANCE AND CONSIDERATION
A. In consideration of and upon and subject to the terms and conditions of this Deed,
the Grantor hereby voluntarily gives, grants and conveys to Grantee a conservation easement in
perpetuity over the Property of the character set forth in this Deed.
B. The Conservation Easement runs with the land and is binding upon Grantor and
Grantor's successors and assigns.
57577-0006/LEGAL 163407342
C. Grantee is conveyed an interest in the Property that allows Grantee to enforce the
limitations and obligations set forth in this Deed.
IV. PURPOSE AND INTENT
Grantor and Grantee acknowledge the purposes and objectives of this Deed are to yield in
perpetuity significant public conservation benefits, as follows (hereinafter "Purposes"):
A. To perpetuate and protect forest and natural areas on the Property; to ensure the
long-term, professional management of those forest and natural areas through Permitted Uses to
facilitate the biologically and economically sustainable production of forest products in a manner
designed to minimize the impacts on water quality, wildlife, scenic, and other Conservation
Values.
B. To permit development such that the Property shall be maintained in perpetuity in
its current forested and undeveloped state without any industrial, residential, or commercial uses.
C. To conserve the wildlife habitat and other natural resource features associated
with the Property, by prohibiting any industrial, commercial, and residential, but not educational,
cultural or recreational uses of the Property consistent with the principal objective of this Deed
set forth in Paragraph IV.A above.
D. To effect a conservation easement grant pursuant to the laws of Washington.
E. Grantor and Grantee acknowledge and agree that all portions of the above
Purposes may not be completely achieved consistently with some other portion of the Purposes,
and that practices consistent with one or more portion of the Purposes but conflicting with other
portions of the Purposes are nonetheless permissible; Provided, that activities that are not
expressly enumerated as Permitted Uses in Article VI and that would detract significantly from
the Conservation Values of the Property shall not be permitted.
V. RIGHTS CONVEYED TO THE GRANTEE
The rights conveyed to the Grantee by this Deed are:
A. To ensure compliance with the terms of this Deed, to enforce the rights granted
herein and to monitor use of the Property, pursuant to the rights acquired hereunder, in order to
assure that the Purposes of this Deed are fulfilled and the MPR and Shoreline Restoration Plan
(defined above) is followed.
B. To enter the Property to monitor Owner's compliance and to enforce the specific
restrictions on the Owner's activities and rights granted to the Grantee by this Deed, and to make
educational, cultural and recreational use of the Property, as well as treaty right -related
commercial use.
C. To enforce the remedies for violation of this Conservation Easement in
accordance with Article X.
5757 7-0006/LEGAL 16340734.2
VI. RIGHTS RETAINED BY GRANTOR
Notwithstanding anything to the contrary herein, Grantor reserves for itself themselves
and its AwiF-successors and assigns, all rights accruing from ownership of the Property, including
the right to engage or permit or invite others to engage in any educational, cultural or
recreational uses of the Property, and activities on the Property, that are not expressly prohibited
herein and are consistent with the Purposes of this Deed (collectively, "Permitted Uses").
Without limiting the generality of the term Permitted Uses, the following uses and activities are
expressly permitted_:
A. Public access: The Property will not be open or available to general public .- - Formatted: No underline
access. Owner further reserves the right to promulgate and enforce reasonable rules restricting
or prohibiting any use that would impair any Conservation Value of the Property or would
interfere with or impair Permitted Uses. Owner reserves the right to install barriers and
otherwise restrict public access to the Property. Owner reserves the right to revoke the access
privileges of any individual, with the exception of Grantee, who violates the Owner's rules or
policies. Owner's invitees are specifically allowed on the Property. Grantee has no
responsibility to monitor or enforce compliance with the public access limitations on the
Property.
B. Third -Party Use.: Owner may _grant permanent or temporary access rights to third Formatted: No underline
.............. .......-. _..... _.... .
parties to conduct Permitted Uses on the Property. This Conservation Easement shall be subject
to valid third party easements for access and uses across or on the Property in existence prior to
execution of this Deed.
C. Transfers: Owner may Te -give, sell, assign, lease, exchange, or otherwise
transfer the Property, or any part thereof or interest therein, by operation of law, by deed, or by
indenture, subject and subordinate to this Deed. Owner also reserves the right to give, sell,
assign, exchange, lease, or otherwise transfer the Owner's reserved rights by operation of law, by
deed, or by indenture, subject and subordinate to this Deed.
D. Leases: There are no existing leases of any portion of the Property. Any New
leases affecting portions of the Property shall be subordinate and subject to the terms, conditions,
and purposes of this Deed. Copies of any New leases, with descriptions of the portions of the
Property subject thereto, shall be provided to the Grantee.
E. Buffer to Master Planned Resort: The Property serves as a buffer between the
Development, which will include residential and recreational activities such as a golf course, and
the tidelands and ocean environment for the purpose of mitigating the deleterious effects of such
activities, if any, on the tidelands and oceans.
F. Emergencies: Owner may Te -take emergency action to preserve and protect
Owner's property interests and the Development in response to natural disaster, environmental
hazards, or threats to human safety including, in the case of an emergency, the right to modify,
change, improve or maintain any portion of the Property or improvements thereon.
5
57577-0006/LEGAL 16340734.2
VII. PROHIBITED USES
Owner shall not engage in, or permit its agents or employees to engage in, the following
uses or activities of or on the Property:
A. Subdivision: Division or subdivision of the Property for the purpose of
converting the Property's land use from forested shoreline to residential, commercial or industrial
sites.
B. Structures, improvements, and utilities: Construction of any structures,
improvements and utilities on the Property.
C. Road construction: Construction of any New road.
D. Hazardous materials: The treatment, permanent storage, disposal, or release of
Hazardous Materials on, from, or under the Property is prohibited, except for lawful quantities of
such materials as necessary or helpful in connection with Permitted Uses and in compliance with
all applicable laws. Notwithstanding anything in the Deed to the contrary, this prohibition does
not impose any liability on Grantee for Hazardous Materials nor does it make Grantee an owner
of the Property, nor does it require Grantee to control any use of the Property that may result in
the treatment, storage, disposal, or release of Hazardous Materials.
Trash: Dumping or long-term storing of trash, garbage or junk.
F. Off-road motorized vehicles: Use of motorized vehicles. The Owner retains
enforcement authority and responsibility against unauthorized motorized vehicle use on the
Property.
G. Exclusive Access: The renting or leasing of, sale, conveyance or transfer of
exclusive access to the Property to others for hunting, fishing, or other recreational purposes,
whether or not as a part of a commercial outfitting or guiding business is prohibited. The renting
or leasing of, or sale of exclusive access to the Property to others for winter recreation activities,
such as skiing, snowmobiling or snowshoeing, whether or not as a part of a commercial
outfitting or guiding business, is prohibited. Owner may not sell, assign, convey, or otherwise
transfer any interest in itself for the purpose of providing exclusive access to the Property in
contravention of this Paragraph.
H. Minerals and Mining: Mineral, hydrocarbon, and geothermal resources
exploration and extraction.
I. Signs, Billboards, or Advertising: The construction or placement of any sign,
billboard, or other advertising material is prohibited except for informational and directional
signs related to Property ownership, boundaries, and Permitted or Prohibited Uses.
J. Us this paragraph really appropriate in this case?
«tal FOFest. On the Fefest Parcel only (and e «ting VYYV'
tl iFd «.,,-tyfights), aets, ases, of .,etiees that m teri ll., .. M
57577-0006/LEGAL 1 63407342
K. Commercial or Industrial Operation: Establishment or operation of any industrial
or commercial activity of any nature
VIII. BASELINE DOCUMENTATION
In order to establish the present condition of the Conservation Values and the man-made
features of the Property, so as to properly monitor future uses of the Property and assure
compliance with the terms hereof, the Baseline Documentation has been prepared for this
Conservation Easement and is incorporated by reference in this Deed. A copy of the Baseline
Documentation is on record with the Grantee and is summarized in Exhibit "D" attached hereto.
Grantor and the Grantee agree that, to the best of their knowledge, said inventory is an accurate
representation of the Property at the time of the signing of this Deed. In the event a controversy
arises with respect to the nature or extent of the historical or present use of the Property or the
physical or biological condition, including physical improvements, of the Property as of the date
of the signing of this Deed, the parties shall not be foreclosed from utilizing all relevant or
material documents, surveys, reports, and other evidence to assist in the resolution of the
controversy.
IX. NOTICE AND APPROVAL
A. Owner expressly agrees to abide by the constraints of the Deed, and the Grantee
agrees to recognize and allow Permitted Uses. Owner agrees to notify the Grantee in writing
before exercising any right reserved by Grantor (excluding Permitted Uses carried out in the
ordinary course of business) if the exercise of that right may adversely impact the Conservation
Values associated with the Property. Notice does not imply an obligation to obtain consent
unless expressly set forth in this Agreement. When notice is required herein for certain uses, the
Owner shall notify Grantee in writing not less than forty-five (45) days prior to the date Owner
intends to begin the activity in question. The notice shall describe the nature, scope, design,
location, timetable, and any other material aspect of the proposed activity in sufficient detail to
permit Grantee to make an informed judgment as to its consistency with the purpose of the Deed.
B. Where Grantee's approval is required, Grantee shall grant or withhold its approval
in writing within thirty (30) days of receipt of Owner's written request for approval. Grantee's
approval may be withheld only upon a determination by Grantee that the action as proposed is
not consistent with the Purposes of this Deed. If, in the opinion of the Grantee, it is possible that
the proposed activity can be modified to be consistent with this Deed, the Grantee shall inform
the Owner of the manner in which the proposed activity may thereafter be conducted. If, in the
opinion of the Grantee, it is not possible for the proposed activity to be modified to be consistent
with this Deed, Grantee shall provide Owner with an explanation of its reasons. If Grantee fails
to respond to Owner's notice or request for approval within thirty (30) days of Grantee's receipt
of the notice, the proposed activity shall be deemed to be consistent with the terms of this Deed.
Grantee shall have no further right to object to the activity identified by such notice or request
for approval.
C. Any notice, demand, request, consent, approval, or communication that either
party desires or is required to give to the other shall be in writing and either served personally or
sent by registered or certified mail, return receipt requested, addressed as follows:
57577-0006/LEGAL 16340734.2
To Grantee: Pleasant Harbor Marina and Golf Resort, LLP
308913 U.S. Hwy 101.
Brinnon, WA 98320
2700 14W Pine eene Drive
Issaquah, WA 98027
To Grantee: Skokomish Indian Tribe
North 80 Tribal Center Road
Skokomish Nation, WA 98584
The name and address to which notices shall be sent may be changed by the respective
party upon written notice to the other.
X. DISPUTE RESOLUTION AND REMEDIES
A. Notice of Failure: If either party ("aggrieved party") determines that the other is
in violation of the terms of this Deed, the aggrieved party shall give written notice to the other
party of such violation and require corrective action sufficient to cure the violation.
B. Failure to Cure: if the defatifting pa4y�
1. If the defaulting_ party fails to cure the violation within thirty (30) days
after receipt of notice thereof, or
2. Under circumstances where the defaulting party cannot reasonably cure
the violation within the thirty (30) day period, fails to begin curing such violation within the
thirty (30) day period or to continue diligently to cure such violation until finally cured; the
aggrieved party may commence an arbitration proceeding as provided in Paragraph X.0 or bring
an action as provided in Paragraph X.D. Where the violation involves injury to the Property
resulting from any violation of this Deed, the defaulting party may cure by restoration the portion
of the Property injured. If the defaulting party fails to cure by restoration, the aggrieved party
may cure and collect restoration costs from the defaulting party.
C. Dispute Resolution: If a dispute arises between the parties concerning the
consistency of any proposed use or activity on the Property with the Purposes of this Deed or if
any other dispute or controversy arises under this Deed, the parties shall meet together to discuss
the dispute and attempt resolution. Thereafter, if both parties agree, they may refer the dispute to
mediation or binding arbitration. The mediator or arbitrator must have knowledge of forest and
coastline management in the Pacific Northwest, unless otherwise agreed to by the parties.
D. Action: The aggrieved party may bring an action for injunctive or declaratory
relief in Skokomish Sk-ike»ii Tribal Court to enforce the terms of this Deed in accordance with
the laws of the State of Washington, to enjoin the violation by temporary or permanent
injunction, to require performance of obligations under this Deed, and to collect restoration costs.
The Grantee shall as a condition of this Agreement procure a limited waiver of sovereign
immunity from the Skokomish Ck, Tribal Council for this purpose and provide a copy to
the Grantor.
57577-0006/LEGAL 16340734.2
Formatted. Normal
{Formatted Underline
E. Nature of Remedy: Grantor and Grantee agree that remedies at law for violations
of the terms of this Deed may be inadequate and that the injunctive relief described in this
Article both prohibitive and mandatory shall be available, in addition to all other relief to which
either party may be entitled, including specific performance of the terms of this Deed without the
necessity of proving either actual damages or the inadequacy of otherwise available legal
remedies. Remedies described in this Paragraph shall be cumulative and shall be in addition to
all remedies now or hereafter existing at law or in equity.
F. Waiver: Enforcement of the terms of this Deed is at the discretion of the party
entitled to performance and any forbearance to exercise rights under this Deed in the event of
any breach of any terms of this Deed shall not be deemed or construed to be a waiver of such
term or of any subsequent breach of the same or any other term of this Deed or of any rights
under this Deed. Except as provided in Paragraph IX.B, no delay or omission in the exercise of
any right or remedy upon any breach shall impair such right or remedy or be construed as a
waiver.
G. Force Majeure: Nothing contained in this Deed shall be construed to entitle
Grantee to bring any action against Owner for, Grantee shall have no rights against Owner with
respect to, and Owner is hereby released and shall have no liability as a result of any injury to or
change in the Property or any failure to comply with the terms of this Deed resulting from causes
beyond Owner's control, including, without limitation, fire, flood, storm, and earth movement, or
from any prudent action taken by Owner under emergency conditions to prevent, abate, or
mitigate significant injury to the Property resulting from such causes, or from the actions of
Grantee or any third party other than Owner's employees and agents.
H. Owner's Responsibility: Owner shall use commercially reasonable efforts to
prevent any public use or public access related activity on the Property that is prohibited under
this Deed. In the event that commercially reasonable efforts fail, Owner and Grantee shall meet
and cooperate in good faith to combine their efforts to prevent any public use or public access
prohibited under this Deed.
I. Costs: In the event either Owner or Grantee shall institute a lawsuit of any kind
relating to this Deed or the Property or action is taken by Owner or Grantee to obtain
performance or restoration costs of any kind regarding this Deed, the unsuccessful party to such
litigation agrees to pay to the prevailing party all costs and expenses, including attorneys fees,
appraisers fees and fees of other experts, incurred therein by the prevailing party, including all
such costs and expenses incurred with respect to an appeal.
XI. REPRESENTATIONS, WARRANTIES, AND LIABILITIES
A. Representations and Warranties: Grantor represents and warrants that to the best
of Grantor's knowledge:
1. No hazardous material exists or has been released, generated, treated,
stored, used, disposed of, deposited, abandoned, or transported in, on, from or across the
Property, other than in compliance with applicable laws;
5757 7-0006/LEGAL 16340734.2
2. There are not any underground storage tanks located on the Property,
whether presently in service or closed, abandoned, or decommissioned, and no underground
storage tanks have been removed from the Property in a manner not in compliance with
applicable federal, state, and local laws, regulations and requirements;
3. Grantor and the Property are in compliance with all federal, state and local
laws, regulations and requirements applicable to the Property and its use;
4. There is no pending or threatened material litigation in any way affecting,
involving, or relating to the Property, other than with respect to the MPR;
5. No civil or criminal proceedings or investigations have been instigated at
any time or are now pending, and no notices, claims, demands, or orders have been received,
arising out of any material violation or alleged violation of, or failure to comply with, any
federal, state or local law, regulation or requirement applicable to the Property or its use, nor, to
Grantor's actual knowledge, do there exist any facts or circumstances that Grantor might
reasonably expect to form the basis for any such proceedings, investigations, notices, claims,
demands or orders, other than those proceedings related to the MPR;
6. There are no Existing leases on the Property; and
7. The Property has no Existing mortgages.
The above representations and warranties are made as of the date of this Deed and shall
not be deemed continuing representations or warranties.
B. Incidents of Ownership: Except as otherwise expressly provided in this Deed,
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. Owner shall pay, prior to
delinquency, any and all taxes, assessments, fees and charges, payable by Owner and properly
levied by competent authority on the Property or on this Deed and shall furnish Grantee with
satisfactory evidence of payment upon request.
C. Liability Protection: Nothing in this Deed shall be interpreted as an assumption
of responsibility by, or basis for liability on the part of, the Owner or the Grantee for any injury
to person or damage to property or loss of life that may be sustained by any person while on the
Property in accordance with the easements granted hereunder or sustained by any such person as
a result of any entry on or use of the Property. The Owner specifically retains all applicable
liability protections provided under Washington law.
XII. ASSIGNMENT, TRANSFER, RELEASE AND EXTINGUISHMENT
A. Grantee may not assign its interest in this Deed without Owner's advance
written consent which may be granted, withheld or conditioned at Owner's sole discretion. Any
assignment must be to a qualified organization at the time of transfer under Section 170(h) of the
Internal Revenue Code (or any successor provision then applicable) and authorized to acquire
and hold conservation easements under applicable Washington legislation or the laws of the
United States. As a condition of such transfer, Grantee shall require that the Purposes that this
10
57577-0006/LEGAL 16340734, 2
grant is intended to advance, continue to be carried out. Grantee may not assign its interest in
this Deed to any Owner successor entity such that the continued force and effect of this
Easement could be affected by merger of title or other cause. Assignment of Grantee's interest in
this Deed shall not otherwise affect the validity of this Easement or limit its enforceability in any
way.
B. Subject to the specific express exceptions set forth in this Deed, it is the
unequivocal intention of the parties that the Purposes of this Deed shall be carried out in
perpetuity. The Grantor and the Grantee acknowledge the possibility that unexpected
circumstances may arise in the future that render the Purposes of this Deed impossible or
impractical to accomplish. In addition, both parties recognize that the possibility of
condemnation and/or involuntary conversion by third parties always exists. In the event such
unexpected circumstances do in fact arise, the Deed can only be terminated or extinguished by
judicial proceedings in a court of competent jurisdiction. The proceeds, after the satisfaction of
any prior claims, from any sale, exchange, or involuntary conversion ("conveyance") of all or
any portion of the Property subsequent to such termination or extinguishment shall be allocated
and paid to Owner except that Grantee shall be entitled to an amount equal to the Easement
Value of the portion of the Property sold, exchanged or involuntarily converted at the time of the
conveyance. The Grantee shall have the right to appear as a party in any eminent domain
proceeding concerning the Property. Any condemnation award respecting any portion of the
Property shall be allocated and paid to Owner except that Grantee shall be entitled to claim and
receive directly from the condemning authority an amount equal to the Easement Value of the
condemned portion at the time of condemnation. Grantee shall use any proceeds received under
the circumstances described in this Paragraph in a manner consistent with the conservation
purposes of this Deed.
C. This Deed is a real property interest immediately vested in Grantee that for the
purpose of this Deed, the parties stipulate to have a fair market value determined by multiplying
the fair market value of the Property unencumbered by the Deed at the relevant time (minus any
increase in value after the date of this grant attributable to improvements) by the Easement
Percentage. The values at the date of this grant shall be those values used to calculate the
deduction for federal income tax purposes allowable by reason of this grant, pursuant to
Section 170(h) of the Internal Revenue Code. For purposes of this Paragraph, the Easement
Percentage shall remain constant. The term "Easement Value" means, as to the Property or any
portion thereof, the Easement Percentage multiplied by the fair market value of the Property or
such portion as of the relevant time.
XIII. AMENDMENT
If circumstances arise under which an amendment to or modification of this Deed would
be appropriate, the Owner and the Grantee or their assigns are free to jointly amend this Deed.
Subject to Article XII, no amendment shall be allowed that will affect the qualification of this
Easement or the status of Grantee under any applicable laws, including Section 170(h) of the
Internal Revenue Code and Title 55, Chapter 21 Idaho Code, and any amendment shall be
consistent with the purposes of this Easement and shall not affect its perpetual duration. Any
amendment must be in writing, signed by both parties, and recorded in the official records of
Jefferson County, Washington.
57577-0006/LEGAL 16340734.2
XIV. RECORDATION
Grantor shall record this instrument in a timely fashion in the official records of Jefferson
County, Washington and Owner or Grantee may re-record it at any time as may be required to
preserve its rights in this Conservation Easement.
XV. GENERAL PROVISIONS
A. Controlling Law: The interpretation and performance of this Deed shall be
governed by the laws of the United States where applicable, or the State of Washington, as in
existence as of the date of this Deed.
B. Construction: This Deed shall be liberally construed in favor of the grant to affect
the Purposes of this Conservation Easement. In interpreting its terms, there shall be no
presumption favoring Grantor or Grantee. If any provision in this instrument is found to be
ambiguous, a�and-interpretation consistent with the purpose of this Deed that would render the
provision valid shall be favored over any interpretation that would render it invalid.
C. Severability: If any provision of this Deed, or the application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of this Deed, or
the application of such provision to persons or circumstances other than those as to which it is
found to be invalid, as the case cause may be, shall not be affected thereby.
D. Subsequent Liens on the Property: No provisions of this Deed should be
construed as impairing the ability of Owner to use this Property as collateral for subsequent
borrowing, provided that any mortgage or lien arising from such a borrowing would be
subordinated to this Deed.
E. Entire Agreement: This instrument, including all the exhibits referred to in this
agreement and incorporated by reference, sets forth the entire agreement of the parties with
respect to the Deed and supersedes all prior discussions, negotiations, understandings, or
agreements relating to the Deed, all of which are merged into this Deed.
F. No Forfeiture: Nothing contained in this Deed will result in a forfeiture or
reversion of Grantor's title nor work to divest Grantor, its successors and assigns, from title in
any respect. Nothing in this Deed shall be construed as a grant upon a condition subsequent.
G. Successors: The covenants, terms, conditions, and restrictions of this Deed shall
be binding upon, and inure to the benefit of, the parties hereto and their respective successors and
assigns, and shall continue as a servitude running in perpetuity with the Property.
H. Termination of Ril;hts and Obligations: A party's rights and obligations under
this Deed terminate upon transfer of the party's interest in the Deed or Property (or terminate as
to any portion of the Property upon transfer of such portion), except that liability for acts or
omissions occurring prior to transfer shall survive transfer.
12
57577-0006/LEGAL 16340734,2
I. Covenant of Good Faith and Fair Dealing: Each Owner and Grantee shall be
bound by a covenant of good faith and fair dealing in connection with the performance and
enforcement of this Deed.
IN WITNESS WHEREOF, Grantors have hereunto set their hands this day of
, 20_
ATTEST: GRANTOR:
PLEASANT HARBOR MARINA AND
GOLF RESORT, LLP
LIN
STATE OF WASHINGTON )
ss.
Jefferson County )
On this day of , 20_, before me a Notary Public in and
for the State of Washington, duly commissioned and sworn, , personally
appeared , to me known to be the person who signed as
of PLEASANT HARBOR MARINA AND GOLF RESORT
LLP, the limited liability partnership that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said partnership for
the uses and purposes therein mentioned.
hese names ubsefibed to the .. ithin :
the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
(Signature ofNotarv)
(Print or stamp name of Notary)
Notary Public for Washington
Residing at
My Commission Expires
13
57577-0006/LEGAL 163407342
IN WITNESS WHEREOF, the foregoing Deed of Conservation Easement is hereby duly
accepted by the Skokomish Indian Tribe and has been executed on this day of
120.
ATTEST: GRANTEE:
SKOKOMISH INDIAN TRIBE
0
STATE OF WASHINGTON )
ss.
Jefferson County )
On this day of , 20__,before me a Notary Public in and
for said county and state, personally appeared , known to me to be
of the Skokomish Indian Tribe, and acknowledged the said instrument to
be the free and voluntary act and deed of said Skokomish Indian Tribe, for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute said instrument
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
(Signature of Notary)
(Print or stamp name of Notary)
Notary Public for Washington
Residing at
My Commission Expires
14
57577-00061LEGAL 16340734.2
Exhibits
Exhibit "A":
Legal Description of Property
Exhibit "B":
Map of the Property
Exhibit "C":
Legal Description of Tidelands
Exhibit "D":
Baseline Documentation Summary
15
57577-0006/LEGAL 16340734.2
DEED OF CONSERVATION EASEMENT
THIS DEED OF CONSERVATION EASEMENT ("Deed" or "Conservation Easement")
is made this day of , 200_, by Pleasant Harbor Marina and Golf
Resort, LLP, having an address at 308913 U.S.
Hwy 101, Brinnon, WA 98320 ("Grantor"), in favor of the Skokomish Indian Tribe, having an
address at North 80 Tribal Center Road, Skokomish Nation, WA 98584 ("Grantee").
I. RECITALS
A. The Grantor is the fee simple owner of the real property (hereinafter called the
"Property"), comprised of one parcel of forested shoreline, beth located in Jefferson County,
Washington consisting of acres, more or less, as described Fespestively—in Exhibit
"A" and shown on Exhibit "B," which is attached to this Deed and incorporated in lay—this
Conservation Easement.
B. The Grantor is also the fee simple owner of tide lands consisting acres, - --- Formatted: Indent: Left: o^, First line: os"
.............
more or less, adjacent to the Property as described in Exhibit "C" which is also attached to this
---............ --
the -Deed (hereinafter called the "Tidelands").
C. The Grantor and the Grantee recognize that the preservation of private shoreline,
and the associated wildlife habitat are worthy of perpetual conservation. The Grantor has agreed
to transfer this Conservation Easement to the Grantee with the assurance that the following
conservation goals will be met;,
• Prevent future conversion of shoreline to uses not compatible with maintaining
shoreline in its natural state.
• Sustain shoreline and the historic uses of shoreline.
• Assist in maintaining the culture and economies of rural communities through
sustaining natural shoreline landscapes.
• Maintain shoreline areas.
• Conserve and enhance shoreline quality associated with natural shorelines.
• Conserve and enhance wildlife habitat and maintain habitat connectivity within
forested shoreline.
D. The Property has substantial and significant conservation value. Conservation
values are of great importance to the Grantor and the Grantee, and their protection in accordance
with this Deed will yield a significant public benefit. The specific Conservation Values of the
Property are documented in the Baseline Documentation.
E. The parties intend to allow future uses of the Property that will maintain the
natural condition of the Property and allow for environmental education, cultural and
recreational opportunities, provided that such uses do not impair or interfere with the purposes of
this Deed.
... _.__.
Formatted Left Line spacing Exactly 10 pt
57577-0006/LEGAL16340734.2
F. To preserve and protect the conservation values of the Property described in this
Deed, Grantor desires to convey to the Grantee a perpetual conservation easement which is
recognized as a "qualified real property interest exclusively for conservation purposes" as
defined under Section 170(h) of the Internal Revenue Code of 1986, as amended ("Internal
Revenue Code").
G. The Grantee has agreed to accept this grant of certain interests in the Property
upon the condition and understanding that the intentions of the Grantor regarding the future uses
and preservation of the Property as expressed in this Deed shall be forever honored and that this
Conservation Easement shall run with the land and be enforced as against the Owner.
H. That the conservation values as set out in the Conservation Easement are met and
the Grantor has agreed to transfer the Tidelands to the Grantee for the sum of Ten ($10.00)
Dollars.
II. DEFINITION OF TERMS
For the purposes of this Deed, the following definitions of terms shall apply:
Baseline Documentation: The inventory of relevant physical and biological conditions
and physical improvement features of the Property, and which consists of reports, maps,
photographs and other documentation that provides, collectively, an accurate representation of
the Property at the time of the easement grant, and which is intended to serve as an objective
information baseline for monitoring compliance with the terms of this Deed. The Baseline
Documentation is further described in Article VIII, below. A copy of the Baseline
Documentation is on record with the Grantee. The Baseline Documentation is summarized in
Exhibit "D", attached hereto, and incorporated in this Deed by reference here and in Exhibit "D."
Conservation Values: The natural forest area, fish and wildlife habitat, natural, scenic,
open space, cultural, geological, historical, and educational values contained on the Property.
Deed or Conservation Easement: This Deed of Conservation Easement, as recorded
from time to time.
Development: The Master Planned Resort known as Pleasant Harbor Marina and Golf
Resort located adjacent to the Property.
Easement Percentage: As to the Property or any portion thereof, the ratio (expressed as
a percentage) of the fair value of the Conservation Easement over the Property or such portion
(as such value has been agreed between Grantor and Grantee as of the date of this Deed) to the
fair market value of the Property or such portion, unencumbered by the Conservation Easement,
as of the date of this Deed.
Existing: Any road, activity, use, lease, statute, easement, or building in effect prior to
the date of Grantor's sip -e of this Deed.
57577.0006/LEGAL 163407342
Grantee: The holder of the Conservation Easement granted over the property; in this
case the Skokomish Indian Tribe.
Grantor: The current owner of the Property; in this case Pleasant Harbor Marina and
Golf Resort, LLP.
Hazardous Materials: Any harmful or toxic material or waste which is subject to any
federal, State, or local law or regulation.
Liaison Team: A team consisting of not more than three representatives of Owner and
three representatives of Grantee. The Liaison Team will monitor the Conservation Easement for
compliance at least once a year and review the MPR at least once every five years. Liaison
Team selection and responsibilities are further described in Paragraphs [neither of these
paraEraphs exist, what was intended 11 r".r' and V4. ^ .' below.
MPR: Ordinance No. 01-0128-08 adopted by Jefferson County on January 28, 2008 to
amend the Comprehensive Plan under the Growth Management Act to include a new Brinnon
Master Planned Resort.
New: Any road, activity, use, lease, statute, easement, or building that occurs after the
date of Grantor's signing she of this Deed.
Owner: Pleasant Harbor Marina and Golf Resort, LLP as of and after the date of the
conveyance hereunder and their successors and assigns in ownership of the fee title to subject
Property. This term is used where appropriate in conjunction with description of the future rights
and responsibilities of the owners of the subject property after the conveyance under this
Conservation Easement.
Permitted Uses: All uses and activities that are permitted in accordance with Article VI
of this Deed.
Prohibited Uses: All uses of and activities on the Property that are expressly prohibited
in this Deed.
Property: The legally described real estate subject to this Deed as described in Exhibit
«A
Shoreline Registration Plan: Any plan or plans approved by Jefferson County
regarding a 200 foot minimum open space buffer along the south shoreline fronting Hood Canal.
III. CONVEYANCE AND CONSIDERATION
A. In consideration of and upon and subject to the terms and conditions of this Deed,
the Grantor hereby voluntarily gives, grants and conveys to Grantee a conservation easement in
perpetuity over the Property of the character set forth in this Deed.
B. The Conservation Easement runs with the land and is binding upon Grantor and
Grantor's successors and assigns.
57577-0006/LEGAL 16340734.2
C. Grantee is conveyed an interest in the Property that allows Grantee to enforce the
limitations and obligations set forth in this Deed.
IV. PURPOSE AND INTENT
Grantor and Grantee acknowledge the purposes and objectives of this Deed are to yield in
perpetuity significant public conservation benefits, as follows (hereinafter "Purposes"):
A. To perpetuate and protect forest and natural areas on the Property; to ensure the
long-term, professional management of those forest and natural areas through Permitted Uses to
facilitate the biologically and economically sustainable production of forest products in a manner
designed to minimize the impacts on water quality, wildlife, scenic, and other Conservation
Values.
B. To permit development such that the Property shall be maintained in perpetuity in
its current forested and undeveloped state without any industrial, residential, or commercial uses.
C. To conserve the wildlife habitat and other natural resource features associated
with the Property, by prohibiting any industrial, commercial, and residential, but not educational,
cultural or recreational uses of the Property consistent with the principal objective of this Deed
set forth in Paragraph IV.A above.
D. To effect a conservation easement grant pursuant to the laws of Washington.
E. Grantor and Grantee acknowledge and agree that all portions of the above
Purposes may not be completely achieved consistently with some other portion of the Purposes,
and that practices consistent with one or more portion of the Purposes but conflicting with other
portions of the Purposes are nonetheless permissible; Provided, that activities that are not
expressly enumerated as Permitted Uses in Article VI and that would detract significantly from
the Conservation Values of the Property shall not be permitted.
V. RIGHTS CONVEYED TO THE GRANTEE
The rights conveyed to the Grantee by this Deed are:
A. To ensure compliance with the terms of this Deed, to enforce the rights granted
herein and to monitor use of the Property, pursuant to the rights acquired hereunder, in order to
assure that the Purposes of this Deed are fulfilled and the MPR and Shoreline Restoration Plan
(defined above) is followed.
B. To enter the Property to monitor Owner's compliance and to enforce the specific
restrictions on the Owner's activities and rights granted to the Grantee by this Deed, and to make
educational, cultural and recreational use of the Property, as well as treaty right -related
commercial use.
C. To enforce the remedies for violation of this Conservation Easement in
accordance with Article X.
57577-0006/LEGAL 16340734.2
VI. RIGHTS RETAINED BY GRANTOR
Notwithstanding anything to the contrary herein, Grantor reserves for itself
and its t -i& -successors and assigns, all rights accruing from ownership of the Property, including
the right to engage or permit or invite others to engage in any educational, cultural or
recreational uses of the Property, and activities on the Property, that are not expressly prohibited
herein and are consistent with the Purposes of this Deed (collectively, "Permitted Uses").
Without limiting the generality of the term Permitted Uses, the following uses and activities are
expressly permitted_-.
A. Public access: The Property will not be1.open or available to general public {Formatted:Nounderline
access. Owner further reserves the right to promulgate and enforce reasonable rules restricting
or prohibiting any use that would impair any Conservation Value of the Property or would
interfere with or impair Permitted Uses. Owner reserves the right to install barriers and
otherwise restrict public access to the Property. Owner reserves the right to revoke the access
privileges of any individual, with the exception of Grantee, who violates the Owner's rules or
policies. Owner's invitees are specifically allowed on the Property. Grantee has no
responsibility to monitor or enforce compliance with the public access limitations on the
Property.
B. Third -Party Use: Owner may grant permanent or temporary access rights to third (Formatted: No underline
----- __.... ..
parties to conduct Permitted Uses on the Property. This Conservation Easement shall be subject
to valid third party easements for access and uses across or on the Property in existence prior to
execution of this Deed.
C. Transfers: Owner may Te --give, sell, assign, lease, exchange, or otherwise
transfer the Property, or any part thereof or interest therein, by operation of law, by deed, or by
indenture, subject and subordinate to this Deed. Owner also reserves the right to give, sell,
assign, exchange, lease, or otherwise transfer the Owner's reserved rights by operation of law, by
deed, or by indenture, subject and subordinate to this Deed.
D. Leases: There are no existing leases of any portion of the Property. Any New
leases affecting portions of the Property shall be subordinate and subject to the terms, conditions,
and purposes of this Deed. Copies of any New leases, with descriptions of the portions of the
Property subject thereto, shall be provided to the Grantee.
E. Buffer to Master Planned Resort: The Property serves as a buffer between the
Development, which will include residential and recreational activities such as a golf course, and
the tidelands and ocean environment for the purpose of mitigating the deleterious effects of such
activities, if any, on the tidelands and oceans.
F. Emergencies: Owner may Te -take emergency action to preserve and protect
Owner's property interests and the Development in response to natural disaster, environmental
hazards, or threats to human safety including, in the case of an emergency, the right to modify,
change, improve or maintain any portion of the Property or improvements thereon.
57577-0006/LEGAL 16340734.2
V1I. PROHIBITED USES
Owner shall not engage in, or permit its agents or employees to engage in, the following
uses or activities of or on the Property:
A. Subdivision: Division or subdivision of the Property for the purpose of
converting the Property's land use from forested shoreline to residential, commercial or industrial
sites.
B. Structures, improvements, and utilities: Construction of any structures,
improvements and utilities on the Property.
C. Road construction: Construction of any New road.
D. Hazardous materials: The treatment, permanent storage, disposal, or release of
Hazardous Materials on, from, or under the Property is prohibited, except for lawful quantities of
such materials as necessary or helpful in connection with Permitted Uses and in compliance with
all applicable laws. Notwithstanding anything in the Deed to the contrary, this prohibition does
not impose any liability on Grantee for Hazardous Materials nor does it make Grantee an owner
of the Property, nor does it require Grantee to control any use of the Property that may result in
the treatment, storage, disposal, or release of Hazardous Materials.
E. Trash: Dumping or long-term storing of trash, garbage or junk.
F. Off-road motorized vehicles: Use of motorized vehicles. The Owner retains
enforcement authority and responsibility against unauthorized motorized vehicle use on the
Property.
G. Exclusive Access: The renting or leasing of, sale, conveyance or transfer of
exclusive access to the Property to others for hunting, fishing, or other recreational purposes,
whether or not as a part of a commercial outfitting or guiding business is prohibited. The renting
or leasing of, or sale of exclusive access to the Property to others for winter recreation activities,
such as skiing, snowmobiling or snowshoeing, whether or not as a part of a commercial
outfitting or guiding business, is prohibited. Owner may not sell, assign, convey, or otherwise
transfer any interest in itself for the purpose of providing exclusive access to the Property in
contravention of this Paragraph.
H. Minerals and Mining: Mineral, hydrocarbon, and geothermal resources
exploration and extraction.
I. Signs, Billboards, or Advertising: The construction or placement of any sign,
billboard, or other advertising material is prohibited except for informational and directional
signs related to Property ownership, boundaries, and Permitted or Prohibited Uses.
J. 11s this paragraph really appropriate in this case?
iiental C r. On the Forest l2afeel only (and 0 piing YYY
� third party rights), aets, USOS, Of ffaCtiOeS that materially eofi
57577-0006/LEGAL 16340734.2
K. Commercial or Industrial Operation: Establishment or operation of any industrial
or commercial activity of any nature
VIII. BASELINE DOCUMENTATION
In order to establish the present condition of the Conservation Values and the man-made
features of the Property, so as to properly monitor future uses of the Property and assure
compliance with the terms hereof, the Baseline Documentation has been prepared for this
Conservation Easement and is incorporated by reference in this Deed. A copy of the Baseline
Documentation is on record with the Grantee and is summarized in Exhibit "D" attached hereto.
Grantor and the Grantee agree that, to the best of their knowledge, said inventory is an accurate
representation of the Property at the time of the signing of this Deed. In the event a controversy
arises with respect to the nature or extent of the historical or present use of the Property or the
physical or biological condition, including physical improvements, of the Property as of the date
of the signing of this Deed, the parties shall not be foreclosed from utilizing all relevant or
material documents, surveys, reports, and other evidence to assist in the resolution of the
controversy.
IX. NOTICE AND APPROVAL
A. Owner expressly agrees to abide by the constraints of the Deed, and the Grantee
agrees to recognize and allow Permitted Uses. Owner agrees to notify the Grantee in writing
before exercising any right reserved by Grantor (excluding Permitted Uses carried out in the
ordinary course of business) if the exercise of that right may adversely impact the Conservation
Values associated with the Property. Notice does not imply an obligation to obtain consent
unless expressly set forth in this Agreement. When notice is required herein for certain uses, the
Owner shall notify Grantee in writing not less than forty-five (45) days prior to the date Owner
intends to begin the activity in question. The notice shall describe the nature, scope, design,
location, timetable, and any other material aspect of the proposed activity in sufficient detail to
permit Grantee to make an informed judgment as to its consistency with the purpose of the Deed.
B. Where Grantee's approval is required, Grantee shall grant or withhold its approval
in writing within thirty (30) days of receipt of Owner's written request for approval. Grantee's
approval may be withheld only upon a determination by Grantee that the action as proposed is
not consistent with the Purposes of this Deed. If, in the opinion of the Grantee, it is possible that
the proposed activity can be modified to be consistent with this Deed, the Grantee shall inform
the Owner of the manner in which the proposed activity may thereafter be conducted. If, in the
opinion of the Grantee, it is not possible for the proposed activity to be modified to be consistent
with this Deed, Grantee shall provide Owner with an explanation of its reasons. If Grantee fails
to respond to Owner's notice or request for approval within thirty (30) days of Grantee's receipt
of the notice, the proposed activity shall be deemed to be consistent with the terms of this Deed.
Grantee shall have no further right to object to the activity identified by such notice or request
for approval.
C. Any notice, demand, request, consent, approval, or communication that either
party desires or is required to give to the other shall be in writing and either served personally or
sent by registered or certified mail, return receipt requested, addressed as follows:
57577-0006/LEGAL l 6340734, 2
To Grantee: Pleasant Harbor Marina and Golf Resort, LLP
308913 U.S. Hwy 101,,
Brinnon, WA 98320
0 TOA1 Pine eene Drive
Issaquah, WA 98027
To Grantee: Skokomish Indian Tribe
North 80 Tribal Center Road
Skokomish Nation, WA 98584
The name and address to which notices shall be sent may be changed by the respective
party upon written notice to the other.
X. DISPUTE RESOLUTION AND REMEDIES
A. Notice of Failure: If either party ("aggrieved party") determines that the other is
in violation of the terms of this Deed, the aggrieved party shall give written notice to the other
party of such violation and require corrective action sufficient to cure the violation.
B. Failure to Cure: if the defauking pai4y:
1. If the defaulting party fails to cure the violation within thirty (30) days
after receipt of notice thereof; or
2. Under circumstances where the defaulting party cannot reasonably cure
the violation within the thirty (30) day period, fails to begin curing such violation within the
thirty (30) day period or to continue diligently to cure such violation until finally cured; the
aggrieved party may commence an arbitration proceeding as provided in Paragraph XC or bring
an action as provided in Paragraph X.D. Where the violation involves injury to the Property
resulting from any violation of this Deed, the defaulting party may cure by restoration the portion
of the Property injured. If the defaulting party fails to cure by restoration, the aggrieved party
may cure and collect restoration costs from the defaulting party.
C. Dispute Resolution: If a dispute arises between the parties concerning the
consistency of any proposed use or activity on the Property with the Purposes of this Deed or if
any other dispute or controversy arises under this Deed, the parties shall meet together to discuss
the dispute and attempt resolution. Thereafter, if both parties agree, they may refer the dispute to
mediation or binding arbitration. The mediator or arbitrator must have knowledge of forest and
coastline management in the Pacific Northwest, unless otherwise agreed to by the parties.
D. Action: The aggrieved party may bring an action for injunctive or declaratory
relief in Skokomish Skikemish Tribal Court to enforce the terms of this Deed in accordance with
the laws of the State of Washington, to enjoin the violation by temporary or permanent
injunction, to require performance of obligations under this Deed, and to collect restoration costs.
The Grantee shall as a condition of this Agreement procure a limited waiver of sovereign
immunity from the Skokomish Sk; Tribal Council for this purpose and provide a copy to
the Grantor.
57577-0006/LEGAL 16340734.2
Formatted: Nor
_ mal
--
Formatted: Underline
E. Nature of Remedy: Grantor and Grantee agree that remedies at law for violations
of the terms of this Deed may be inadequate and that the injunctive relief described in this
Article both prohibitive and mandatory shall be available, in addition to all other relief to which
either party may be entitled, including specific performance of the terms of this Deed without the
necessity of proving either actual damages or the inadequacy of otherwise available legal
remedies. Remedies described in this Paragraph shall be cumulative and shall be in addition to
all remedies now or hereafter existing at law or in equity.
F. Waiver: Enforcement of the terms of this Deed is at the discretion of the party
entitled to performance and any forbearance to exercise rights under this Deed in the event of
any breach of any terms of this Deed shall not be deemed or construed to be a waiver of such
term or of any subsequent breach of the same or any other term of this Deed or of any rights
under this Deed. Except as provided in Paragraph IX.B, no delay or omission in the exercise of
any right or remedy upon any breach shall impair such right or remedy or be construed as a
waiver.
G. Force Majeure: Nothing contained in this Deed shall be construed to entitle
Grantee to bring any action against Owner for, Grantee shall have no rights against Owner with
respect to, and Owner is hereby released and shall have no liability as a result of any injury to or
change in the Property or any failure to comply with the terms of this Deed resulting from causes
beyond Owner's control, including, without limitation, fire, flood, storm, and earth movement, or
from any prudent action taken by Owner under emergency conditions to prevent, abate, or
mitigate significant injury to the Property resulting from such causes, or from the actions of
Grantee or any third party other than Owner's employees and agents.
H. Owner's Responsibility: Owner shall use commercially reasonable efforts to
prevent any public use or public access related activity on the Property that is prohibited under
this Deed. In the event that commercially reasonable efforts fail, Owner and Grantee shall meet
and cooperate in good faith to combine their efforts to prevent any public use or public access
prohibited under this Deed.
I. Costs: In the event either Owner or Grantee shall institute a lawsuit of any kind
relating to this Deed or the Property or action is taken by Owner or Grantee to obtain
performance or restoration costs of any kind regarding this Deed, the unsuccessful party to such
litigation agrees to pay to the prevailing party all costs and expenses, including attorneys fees,
appraisers fees and fees of other experts, incurred therein by the prevailing party, including all
such costs and expenses incurred with respect to an appeal.
XI. REPRESENTATIONS, WARRANTIES, AND LIABILITIES
A. Representations and Warranties: Grantor represents and warrants that to the best
of Grantor's knowledge:
1. No hazardous material exists or has been released, generated, treated,
stored, used, disposed of, deposited, abandoned, or transported in, on, from or across the
Property, other than in compliance with applicable laws;
57577-0006/LEGAL 16340734.2
2. There are not any underground storage tanks located on the Property,
whether presently in service or closed, abandoned, or decommissioned, and no underground
storage tanks have been removed from the Property in a manner not in compliance with
applicable federal, state, and local laws, regulations and requirements;
3. Grantor and the Property are in compliance with all federal, state and local
laws, regulations and requirements applicable to the Property and its use;
4. There is no pending or threatened material litigation in any way affecting,
involving, or relating to the Property, other than with respect to the MPR;
5. No civil or criminal proceedings or investigations have been instigated at
any time or are now pending, and no notices, claims, demands, or orders have been received,
arising out of any material violation or alleged violation of, or failure to comply with, any
federal, state or local law, regulation or requirement applicable to the Property or its use, nor, to
Grantor's actual knowledge, do there exist any facts or circumstances that Grantor might
reasonably expect to form the basis for any such proceedings, investigations, notices, claims,
demands or orders, other than those proceedings related to the MPR;
6. There are no Existing leases on the Property; and
The Property has no Existing mortgages.
The above representations and warranties are made as of the date of this Deed and shall
not be deemed continuing representations or warranties.
B. Incidents of Ownership: Except as otherwise expressly provided in this Deed,
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. Owner shall pay, prior to
delinquency, any and all taxes, assessments, fees and charges, payable by Owner and properly
levied by competent authority on the Property or on this Deed and shall furnish Grantee with
satisfactory evidence of payment upon request.
C. Liability Protection: Nothing in this Deed shall be interpreted as an assumption
of responsibility by, or basis for liability on the part of, the Owner or the Grantee for any injury
to person or damage to property or loss of life that may be sustained by any person while on the
Property in accordance with the easements granted hereunder or sustained by any such person as
a result of any entry on or use of the Property. The Owner specifically retains all applicable
liability protections provided under Washington law.
XII. ASSIGNMENT, TRANSFER, RELEASE AND EXTINGUISHMENT
A. Grantee may not assign its interest in this Deed without Owner's advance
written consent which may be granted, withheld or conditioned at Owner's sole discretion. Any
assignment must be to a qualified organization at the time of transfer under Section 170(h) of the
Internal Revenue Code (or any successor provision then applicable) and authorized to acquire
and hold conservation easements under applicable Washington legislation or the laws of the
United States. As a condition of such transfer, Grantee shall require that the Purposes that this
10
57577-0006/LEGAL 16340734.2
grant is intended to advance, continue to be carried out. Grantee may not assign its interest in
this Deed to any Owner successor entity such that the continued force and effect of this
Easement could be affected by merger of title or other cause. Assignment of Grantee's interest in
this Deed shall not otherwise affect the validity of this Easement or limit its enforceability in any
way.
B. Subject to the specific express exceptions set forth in this Deed, it is the
unequivocal intention of the parties that the Purposes of this Deed shall be carried out in
perpetuity. The Grantor and the Grantee acknowledge the possibility that unexpected
circumstances may arise in the future that render the Purposes of this Deed impossible or
impractical to accomplish. In addition, both parties recognize that the possibility of
condemnation and/or involuntary conversion by third parties always exists. In the event such
unexpected circumstances do in fact arise, the Deed can only be terminated or extinguished by
judicial proceedings in a court of competent jurisdiction. The proceeds, after the satisfaction of
any prior claims, from any sale, exchange, or involuntary conversion ("conveyance") of all or
any portion of the Property subsequent to such termination or extinguishment shall be allocated
and paid to Owner except that Grantee shall be entitled to an amount equal to the Easement
Value of the portion of the Property sold, exchanged or involuntarily converted at the time of the
conveyance. The Grantee shall have the right to appear as a party in any eminent domain
proceeding concerning the Property. Any condemnation award respecting any portion of the
Property shall be allocated and paid to Owner except that Grantee shall be entitled to claim and
receive directly from the condemning authority an amount equal to the Easement Value of the
condemned portion at the time of condemnation. Grantee shall use any proceeds received under
the circumstances described in this Paragraph in a manner consistent with the conservation
purposes of this Deed.
C. This Deed is a real property interest immediately vested in Grantee that for the
purpose of this Deed, the parties stipulate to have a fair market value determined by multiplying
the fair market value of the Property unencumbered by the Deed at the relevant time (minus any
increase in value after the date of this grant attributable to improvements) by the Easement
Percentage. The values at the date of this grant shall be those values used to calculate the
deduction for federal income tax purposes allowable by reason of this grant, pursuant to
Section 170(h) of the Internal Revenue Code. For purposes of this Paragraph, the Easement
Percentage shall remain constant. The term "Easement Value" means, as to the Property or any
portion thereof, the Easement Percentage multiplied by the fair market value of the Property or
such portion as of the relevant time.
XIII. AMENDMENT
If circumstances arise under which an amendment to or modification of this Deed would
be appropriate, the Owner and the Grantee or their assigns are free to jointly amend this Deed.
Subject to Article XII, no amendment shall be allowed that will affect the qualification of this
Easement or the status of Grantee under any applicable laws, including Section 170(h) of the
Internal Revenue Code and Title 55, Chapter 21 Idaho Code, and any amendment shall be
consistent with the purposes of this Easement and shall not affect its perpetual duration. Any
amendment must be in writing, signed by both parties, and recorded in the official records of
Jefferson County, Washington.
57577-0006/LEGAL 163 4073 4.2
XIV. RECORDATION
Grantor shall record this instrument in a timely fashion in the official records of Jefferson
County, Washington and Owner or Grantee may re-record it at any time as may be required to
preserve its rights in this Conservation Easement.
XV. GENERAL PROVISIONS
A. Controlling Law: The interpretation and performance of this Deed shall be
governed by the laws of the United States where applicable, or the State of Washington, as in
existence as of the date of this Deed.
B. Construction: This Deed shall be liberally construed in favor of the grant to affect
the Purposes of this Conservation Easement. In interpreting its terms, there shall be no
presumption favoring Grantor or Grantee. If any provision in this instrument is found to be
ambiguous, wand -interpretation consistent with the purpose of this Deed that would render the
provision valid shall be favored over any interpretation that would render it invalid.
C. Severability: If any provision of this Deed, or the application thereof to any
person or circumstance, is found to be invalid, the remainder of the provisions of this Deed, or
the application of such provision to persons or circumstances other than those as to which it is
found to be invalid, as the case cause may be, shall not be affected thereby.
D. Subsequent Liens on the Property: No provisions of this Deed should be
construed as impairing the ability of Owner to use this Property as collateral for subsequent
borrowing, provided that any mortgage or lien arising from such a borrowing would be
subordinated to this Deed.
E. Entire Agreement: This instrument, including all the exhibits referred to in this
agreement and incorporated by reference, sets forth the entire agreement of the parties with
respect to the Deed and supersedes all prior discussions, negotiations, understandings, or
agreements relating to the Deed, all of which are merged into this Deed.
F. No Forfeiture: Nothing contained in this Deed will result in a forfeiture or
reversion of Grantor's title nor work to divest Grantor, its successors and assigns, from title in
any respect. Nothing in this Deed shall be construed as a grant upon a condition subsequent.
G. Successors: The covenants, terms, conditions, and restrictions of this Deed shall
be binding upon, and inure to the benefit of, the parties hereto and their respective successors and
assigns, and shall continue as a servitude running in perpetuity with the Property.
H. Termination of Rights and Obligations: A party's rights and obligations under
this Deed terminate upon transfer of the party's interest in the Deed or Property (or terminate as
to any portion of the Property upon transfer of such portion), except that liability for acts or
omissions occurring prior to transfer shall survive transfer.
12
57577-0006/LEGAL 16340734.2
I. Covenant of Good Faith and Fair Dealing: Each Owner and Grantee shall be
bound by a covenant of good faith and fair dealing in connection with the performance and
enforcement of this Deed.
IN WITNESS WHEREOF, Grantors have hereunto set their hands this day of
, 20_
ATTEST: GRANTOR:
PLEASANT HARBOR MARINA AND
GOLF RESORT, LLP
go
STATE OF WASHINGTON )
ss.
Jefferson County )
On this day of , 20__, before me a Notary Public in and
for the State of Washington, duly commissioned and sworn, , personally
appeared , to me known to be the person who signed as
of PLEASANT HARBOR MARINA AND GOLF RESORT
LLP, the limited liability_ partnership that executed the within and foregoing instrument, and
acknowledged said instrument to be the free and voluntary act and deed of said partnership for
the uses and purposes therein mentioned.
the
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
(Signature of Notaryi)
(Print or stamp name of Notary)
Notary Public for Washington
Residing at
My Commission Expires
13
57577-0006/LEGAL 16340734.2
IN WITNESS WHEREOF, the foregoing Deed of Conservation Easement is hereby duly
accepted by the Skokomish Indian Tribe and has been executed on this day of
, 20
ATTEST: GRANTEE:
STATE OF WASHINGTON )
ss.
Jefferson County
SKOKOMISH INDIAN TRIBE
By:
On this_ day of , 20_ before me a Notary Public in and
for said county and state, personally appeared , known to me to be
of the Skokomish Indian Tribe, and acknowledged the said instrument to
be the free and voluntary act and deed of said Skokomish Indian Tribe, for the uses and purposes
therein mentioned, and on oath stated that he was authorized to execute said instrument
IN WITNESS WHEREOF, 1 have hereunto set my hand and affixed my official seal the
day and year first above written.
(Signature of Notary)
(Print or stamp name of Notary)
Notary Public for Washington
Residing at
My Commission Expires
14
57577-0006/LEGAL 16340734.2
Exhibits
Exhibit "A":
Legal Description of Property
Exhibit "B":
Map of the Property
Exhibit "C":
Legal Description of Tidelands
Exhibit "D":
Baseline Documentation Summary
15
57577-0006/LEGAL 16340734.2