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HomeMy WebLinkAboutres2008-060WHATCOM COUNTY COUNCIL AGENDA BILL NO. AB2008 -306 IAPlanning Division\Long Range Planning \1 PDR Program\Applicants 2007\Bauthues \WC- PDR. docs _correspondance\Bauthues.agenda bill.doc CLEARANCES Initial Date Dage Received in Council Office A enda Date Assigned to: Originator: Samya Lutz g /ZS /pg - - --� \vi L� D. 4, s 919108 Nat Res /Council Division Head: Linda Peterson 'j .. U Dept. Head: DavidStalheim WHA CO COUNTY I Y Prosecutor: Royce Buckingham COUNCIL Purchasing /Budget: Brad Bennett a Executive: Pete Kremen ^� �0 TITLE OF DOCUMENT: Resolution for authorization of the purchase of a conservation easement on the Bauthues farm property ATTACHMENTS: Memo, Resolution, Agreement Covering Terms of Sale, and proposed Purchase and Sale Agreement with Conservation Easement (and exhibits) as attachment SEPA review required? ( ) Yes ( x) NO Should Clerk schedule a hearing? ( ) Yes (x) NO SEPA review completed? ( ) Yes ( ) NO Requested Date: SUMMAR Y STA TEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate. Be clear in explaining the intent of the action.) Authorization of purchase of a conservation easement under WCC 3.25A - Purchase of Agricultural Development Rights program. The Bauthues farm property is in the top - ranked properties ( #2) of Round 6 of the PDR Program, as approved by Council by Resolution in April 2008, and will be the eleventh purchase under the PDR program. Matching funds have been authorized by USDA for 50% of the purchase price. A supplemental budget request has been submitted. COMMITTEE ACTION: COUNCIL ACTION: 9/9/2008: Forwarded to Council for approval 9/9/2008: Council Approved 7 -0 Res. 2008 -060 Related County Contract #: Related File Numbers: Ordinance or Resolution Number: Res.2008 432 Res. 2008 -060 Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing on the County's website at: www.co.whatcom.wa.us /council. IAPlanning Division\Long Range Planning \1 PDR Program\Applicants 2007\Bauthues \WC- PDR. docs _correspondance\Bauthues.agenda bill.doc SPONSORED BY: Consent PROPOSED BY: Planning INTRODUCTION DATE: 9/9/2008 RESOLUTION # 2008 -060 AUTHORIZING WHATCOM COUNTY EXECUTIVE TO PURCHASE DEVELOPMENT RIGHTS ON THE BAUTHUES PROPERTY WHEREAS, Whatcom County government recognizes agriculture as a major contributor to the local economy and a high quality of life for Whatcom County citizens; and WHEREAS, The Growth Management Act and the County Comprehensive Plan support the retention of agricultural lands of long term commercial significance and encourage the use of innovative techniques to do so; and WHEREAS, Ordinance #92 -002 enacted a property tax levy known as the Conservation Futures Tax as authorized by RCW 84.34.230 to provide a funding source to assist in acquiring open space, wetlands, farm and agricultural land, and timber land; and WHEREAS, Ordinance #2002 -054 authorized the creation of a Purchase of Development Rights program for agricultural land within Whatcom County; and WHEREAS, Ordinance #2002 -054 established a Purchase of Development Rights Oversight Committee to provide review and assistance to the PDR Administrator; and WHEREAS, Resolution #2002 -040 adopted the PDR Guidelines Document which includes specific direction for program administration and/ conservation easement acquisitions; and WHEREAS, The PDR Oversight Committee reviewed this property, found the property complied with the PDR Guidelines, recommended this property for purchase, and authorized the PDR Administrator to proceed with the acquisition process on March 21, 2008; and WHEREAS, The Bauthues property has been appraised and a conservation easement has been drafted which meets the requirements of both the Whatcom County Agricultural Purchase of Development Rights Program and the Federal Farm and Ranch Land Protection Program; and WHEREAS, Matching federal funds will be provided by the Natural Resource Conservation Service from the Farm and Ranch Land Protection Program to cover 50% of the purchase price; and WHEREAS, The landowner has agreed to the offer price and conservation easement conditions. NOW, THEREFORE, BE IT RESOLVED by the Whatcom .County Council that: P. 1 1. The Executive is authorized to purchase the development right of the property as identified in Exhibit 1 of this resolution (the Conservation Easement) for the full appraisal amount and to expend any additional funds necessary to cover other purchase related costs provided that all terms and conditions of the purchases are satisfied. APPROVED this 9th day of Sept. , 2008 Aj �i3...nr��� Ci 00 Cj ' r a • r W. MA WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON x°.-� -� Carl Weimer, Chairperson Pete Kremen, Executive Date: BAUTHUES CONSERVATION EASEMENT DEED PURCHASE AND SALE AGREEMENT This CONSERVATION AGREEMENT ( "Agreement ") is Whatcom County, a municipal property owners ( "Sellers "). EASEMENT DEED PURCHASE AND SALE entered into on month/date , 2008 between corporation ( "Buyer "), and Don and Irma Bauthues, RECITALS, A. Sellers are fee simple owners of real property (the "Property ") in Whatcom County, Washington. Exhibit A of Attachment # 1 is the legal description of the Property and is incorporated herein by reference. Be The Buyer wishes to protect the Property from certain development and preserve its quality as productive farmland. co The Buyer desires to purchase and the Sellers desire to sell an agricultural protection conservation easement deed (Easement) under which Whatcom County and Whatcom Land Trust are grantees, a copy of which is attached as Attachment #1 and is incorporated herein by reference. D. The Federal Farm and Ranchland Protection Program's purpose is to purchase conservation easements in land with prime, unique, or other productive soil for the purpose of protecting topsoil from conversion to nonagricultural uses (16 USC 38381). Sellers acknowledge that $57,500 is provided by the United States Department of Agriculture (United States), through the Farm and Ranchland Protection Program, and thus entitles such Secretary to the rights identified in the Easement. E. The Property is approximately 11 acres and is currently farmed. F. The Property has significant agricultural value to the Buyer and to the people of Whatcom County and the State of Washington. G. Conveyance of rights and imposition of restrictions described in the Easement furthers the intent of Whatcom County Ordinance No. 2002 -054, provided as Exhibit C of Attachment #1, to preserve land for agricultural purposes and has substantial public benefits. H. As owners of the Property, Sellers have the right to convey the rights and restrictions contained in the Easement in perpetuity. NOW THEREFORE, in consideration of the mutual covenants contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Sellers and Buyer agree as follows: AGREEMENT 1. Real Property. Sellers agree to sell and Buyers agree to purchase an Easement in perpetuity over the Property, consisting of certain rights and restrictions as defined in the Easement. This Agreement is contingent on Sellers and the Whatcom Land Trust agreeing on the Baseline Data as described in Exhibit D of Attachment #l. 2. Purchase Price. The total purchase price for the Conservation Easement ( "Purchase Price ") is one hundred and fifteen thousand DOLLARS ($115,000.00). The Purchase Price, less the Seller's share of closing costs, will be paid to Sellers at closing. 3. Title Policy. Sellers shall cause First American Title Company to issue to Grantees at closing a standard coverage owner's policy of title insurance insuring Grantees' title to the ' Conservation Easement in the full amount of the Purchase Price subject only to the Permitted Encumbrances ( "Title Policy "). The Title Policy must be dated as of the date of execution and delivery of the Conservation Easement Deed (the "Closing Date "), 4. Closing. The costs of closing, including but not limited to fees of an escrow agent, if any, shall be divided and borne equally by the parties, except for excise tax and title insurance which shall be paid by Sellers. The Sellers' share shall be deducted from the Purchase Price and the reduced amount shall be reflected in the final payment. Closing will occur within 60 days of the signing of this Agreement, unless the parties agree otherwise. 5. Notices. Any notice under this Agreement must be in writing and be personally delivered, delivered by recognized overnight courier service, given by mail or via facsimile. E -mail transmission of notice shall not be effective. All notices must be addressed to the parties at the following addresses, or at such other addresses as the parties may from time to time direct in writing: Buyer: Whatcom County Attn: Agricultural PDR Administrator 5280 Northwest Drive Bellingham, WA 98226 With a copy to: Whatcom County Prosecutor's Office Attn: Royce Buckingham 311 Grand Ave. Bellingham, WA 98225 Facsimile No.: 360 - 738 -4561 Seller: Don and Irma Bauthues 1038 E Laurel Road Bellingham, WA 98226 Any notice will be deemed to have been given, when personally delivered, and if delivered by courier service, one business day after deposit with the courier service, and if mailed, two business days after deposit in the U.S. mail, and if delivered by facsimile, the same day as verified. 6. Counterparts; Faxed Signatures. This Agreement may be executed in any number of counterparts and by different parties hereto, each of which counterpart when so executed shall have the same force and effect as. if that party had signed all other counterparts. Facsimile transmitted signatures shall be fully binding and effective for all purposes. 7. Amendments. This Agreement may be amended or modified only by a written instrument executed by Sellers and Buyer. 8. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of Washington. 9. Time of the Essence. Time is of the essence of this Agreement and of all acts required to be done and performed by the parties hereto. 10. Nonmerger. The terms and provisions of this Agreement, including without limitation, all indemnification obligations, will not merge in, but will survive, the closing of the transaction contemplated under the Agreement. 11. Assignment. Buyer shall not assign this Agreement without Sellers' prior written consent. Sellers may not assign this Agreement, except in whole without the Buyer's* prior written consent. As a condition to approving any assignment . of this Agreement, Buyer may require that the assignee confirm its status as an institutional investor or otherwise confirm compliance with any securities laws. No assignee of this Agreement shall ever be permitted to certificate the payments to be made by the Buyer under this Agreement as part of a private placement or public securities offering. 12. Additional Acts. Except as otherwise provided herein, in addition to the acts and deeds recited herein and contemplated to be performed, executed and/or delivered by any party hereto, the parties agree to perform, execute and/or deliver, or cause to be performed, executed and/or delivered, any and all such further acts, deeds and assurances, which may reasonably be required to effect the Agreement contemplated herein. 13. Condition of Property. Sellers agree to deliver the property to the buyer in the condition that it was in on the date of this Agreement. Any activities undertaken by anyone, with or without the Sellers' permission and not permitted in Section VI of Attachment #1, or other activities that result in property waste or render the property unsuitable or unable to comply with the purpose of the conservation easement as contained in Section III of Attachment #1 are prohibited. Such shall make this agreement voidable by the County at its discretion. 14. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the purchase and sale of the Easement, and supersedes all prior agreements and understandings, oral or written, between the parties relating to the subject matter of this Agreement. REMAINDER OF PAGE IS INTENTIONALLY BLANK; SIGNATURE PAGE FOLLOWS IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above. SELLERS: Don Bauthues Date: Irma Bauthues Date: BUYER: WHATCOM COUNTY does hereby accept the above Deed of Agricultural Conservation Easement. Date: Pete Kremen, County Executive Approved as to Legal Form: Civil Deputy Pro "secuting STATE OF WASHINGTON ) ) ss. COUNTY OF WHATCOM ) I certify that I know. or . have satisfactory evidence that 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 in and acknowledged it as the of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name My commission expires After Recording Return To: Whatcom Land Trust P.O. Box 6131 Bellingham, WA 98227 DOCUMENT TITLE: WHATCOM COUNTY CONSERVATION EASEMENT GRANTOR: DON AND IRMA BAUTHUES GRANTEES: WHATCOM LAND TRUST, WHATCOM COUNTY AND UNITED STATES OF AMERICA ABBR. LEGAL DESCRIPTION: Ptn SE SE, Sec 13, Twn 40N, Rng 1E APN# 400113 468026 0000 CONSERVATION EASEMENT DEED This Conservation Easement Deed ( "Deed ") is made this day of 200., by DON AND IRMA BAUTHUES ( "Grantor ") to the WHATCOM LAND TRUST, ( "Trust ") WHATCOM COUNTY, WASHINGTON ( "County ") and the UNITED STATES OF AMERICA ( "United States "), acting by and through the United States Department of Agriculture ( "USDA "), Natural Resources Conservation Service ( "NRCS ") on behalf of the Commodity Credit Corporation I. RECITALS. The following recitals are a material part of this Easement. A. Grantor is fee simple owner of real property (the "Property ") in Whatcom County, Washington, that is the subject of this Easement. Exhibit A is the legal description and Exhibit B is a site plan for that Property, both of which are attached and incorporated herein by reference. B. The Federal Farm and Ranch Lands Protection Program's purpose is to purchase conservation easements in land with prime, unique, or other productive soil for the purpose of protecting topsoil from conversion to nonagricultural uses (16 USC 3838h- 38381). That Grantor acknowledges that $57,500 was provided by the United States Department of Agriculture (United States), through the Farm and Ranch Lands Protection Program, and thus entitles the United States to the rights identified herein. C. While "Grantees" include the Whatcom Land Trust, Whatcom County and the United States of America or its assigns, use of the term "Grantees" does not imply that joint approval is required to exercise Grantees' rights and responsibilities under this Easement. Those rights and responsibilities may be independently exercised by any Grantee. D. The Property is approximately 10.9 acres and is currently farmed. E. The Property has significant agricultural value to Grantees and to the people of Whatcorn County and the State of Washington. F. Grantor and Grantees agree that the conveyance of rights and imposition of restrictions described in this Easement furthers the intent of Whatcom County Ordinance No. 2002 -054, provided in Exhibit C, to preserve land for agricultural purposes and has substantial public benefits. G. As owner of the Property, Grantor has the right to convey the rights and restrictions contained in this Easement in perpetuity. II. CONVEYANCE AND CONSIDERATION. A. For the reasons stated above, in consideration of mutual covenants, terms, conditions, and restrictions contained in this Easement, and in consideration of payment of $115,000 by Whatcorn County and the United States to Grantor, Grantor hereby grants, conveys and warrants to Grantees a Conservation Easement in perpetuity over the Property,. consisting of certain rights and restrictions as defined in this Easement Deed, B. This Easement Deed is a conveyance of an interest in real property under the provisions of RCW 64.04.130. C. Grantor and Grantees intend that this Easement run with the land and that it shall be binding upon Grantor's, successors and assigns in perpetuity. III. PURPOSE, The purpose of this Easement is to: (1) protect the present and future ability to use the Property for agricultural purposes; (2) preserve the soil as a valuable resource and prevent activities that will impair the ability, now or in the future, to use the soil to produce food and fiber; (3) enable the Property to remain in agricultural use for the production of food and fiber by preserving and protecting in perpetuity its agricultural values, character, use and utility, and to prevent any use or condition of the Property that would significantly impair or interfere with its agricultural values, character, use or utility. The grant of this Easement will also serve the "conservation purpose" of farmland protection as identified in Section 170(h)(4)(A) of the Internal Revenue Code. This statement of purpose is intended -2- as a substantive provision of the Easement. Any ambiguity or uncertainty regarding the application of the provisions of this Easement will be resolved so as to further this purpose. IV. RELATIONSHIP OF PARTIES. A. Unless noted otherwise, Whatcom County, the Whatcom Land Trust, and the United States of America share all rights and responsibilities of Grantees under this Easement. For purposes of administering, monitoring and enforcing the terms of the Easement, the Whatcom Land Trust is the lead Grantee, unless Grantor is notified otherwise. As the lead Grantee, the Whatcom Land Trust has authority to act alone and at its sole discretion in exercising all rights and responsibilities of Grantees under this Easement. Grantor shall treat the Whatcom Land Trust as its contact for all matters regarding this Easement. Whatcom County and the Whatcom Land Trust may jointly take enforcement action, or if the Whatcom Land Trust fails to enforce the terms of this Easement, Whatcom County may do so alone. Be The above Section IV A does not pertain to monitoring and enforcement of a conservation plan, the responsibility for which rests with the Natural Resource Conservation Service and Whatcom County as described in Section VIII A below. V. RIGHTS OF THE UNITED STATES OF AMERICA. Under this Conservation Easement, the same rights are granted to the United States that are granted to Whatcom County and Whatcom Land Trust. However, the Secretary of the United States Department of Agriculture ( "the Secretary ")), on behalf of the United States, will only exercise these rights under the following circumstances: In the event that Whatcom County and Whatcom Land Trust fail to enforce any of the terms of this Conservation Easement, as determined in the sole discretion of the Secretary, the Secretary and his or her successors or assigns may exercise the United States' rights to enforce the terms of this Conservation Easement through any and all authorities available under Federal or State law. In the event that Whatcom County and Whatcom Land Trust attempt to terminate, transfer or otherwise divest themselves of any rights, title, or interest in this Conservation Easement without the prior consent of the Secretary and, if applicable, payment of consideration to the United States, then, at the option of the Secretary, all right, title, and interest in this Conservation Easement shall become vested solely in the United States of America. VI. PERMITTED USES AND ACTIVITIES. Grantor may: -3- A. Engage in uses and activities consistent with the purpose of this Easement so long as those uses or activities are not expressly prohibited in Section VII below. Be Continue any use or activity not permitted by this easement at the time this Easement is signed provided it is not contrary to the purposes of this easement and provided that it is agreed to in writing by the parties of this agreement. C. Existing agricultural structures may be removed, maintained, expanded or replaced and new agricultural structures., and improvements used primarily for agricultural enterprises may be constructed by the Grantor on the Property within the "Farmstead ", as defined in Section XI of this agreement, so long as expansion or new construction does not exceed the area of impervious surfaces allowed in Section VII D. Agricultural structures may include, without limitation, offices, warehouses, temporary farm worker housing, livestock housing and related structures, equipment storage and maintenance facilities, facilities related to the processing and sale of farm products predominately grown on the Property, so long as the structures' primary use is to support the agricultural activities on the Property or agricultural activities on other parcels under the control of the Grantors. D. New agricultural buildings, structures or improvements proposed for locations outside of "Farmstead Area" may be built or placed only with the written permission of the Trust. Permission shall be granted only if the agricultural productive capacity and open space character of the Property are not, significantly impaired by the construction and use of such structures, disturbance to prime, unique and important soils is minimized and all structures individually and combined are consistent with the terms of this Easement. VII. PROHIBITED USES AND ACTIVITIES. Unless specifically permitted by Section VI above, Grantor shall not engage in or permit any of the following activities on the Property: A. Use or activities inconsistent with the purpose of this Easement; Be Legal or "de facto' division, subdivision, or partitioning of the land or the separate sale of any portion of the Property, even if that portion of the Property constitutes a separate legal parcel. This restriction does not prohibit minor boundary line adjustments with adjoining agricultural land, provided there is no net loss of land to the Property, and provided that no new parcel may be created by such boundary line adjustments, and such adjustments do not affect -4- over two acres in total for the entire Property. Any new land gained through a boundary line adjustment is subject to the terms of this Deed. C. Place or construct any residential building, structures, or other residential improvements of any kind except those utilized to house farm workers, and except that a single family structure and an accessory dwelling within the "Homesite" may be built, improved, repaired, replaced and expanded only to the extent that the footplates together do not exceed 3,500 square feet of total dwelling space; D. Cover more than two percent (4 %) of the area (approximately 34,325 square feet) of the Property with impervious surfaces, including, without limitation, asphalt,. concrete, gravel, buildings, or ponds, except animal waste holding ponds; E. Construct or expand non - agricultural structures or facilities beyond the boundaries of the "Homesite" as identified in the baseline data (Exhibit D) at the time of the signing of this Easement; F. Conduct any non -farm related commercial activity using over one percent (1 %) or one acre of the Property, whichever is less, unless that non -farm related commercial activity utilizes buildings existing at the time the Conservation Easement is signed and does not involve installation of facilities or expenditure of capital that would hinder the future use of buildings for agricultural purposes; G. Conduct any use or activity that removes or degrades the soil or impairs the ability to farm the Property except for the construction of conservation facilities or implementation of best management practices; . H. Transfer, encumber, lease, sell or otherwise separate water rights from title to the Property, I. Mine or extract soil, sand, gravel, oil extract soil, sand, and gravel solely manner consistent with the conser alteration shall not exceed 2 acres. returned to pre - activity conditions in Exhibit D. or other mineral, except that Grantor may for a permitted use on the Property in a vation purposes of this easement. Such Land subject to such alteration shall be accordance with baseline data set forth in J. Expand or intensify any use or activity existing at the time this Easement Deed is signed that is contrary to the purpose of this Easement or prohibited in this section. -5- VIII. CONSERVATION PLAN. A. As required by section 1238I of the Food Security Act of 1985, as amended, the Grantor, its successors, or assigns, shall conduct all agricultural operations on the Property in a manner consistent with a conservation plan prepared in consultation with NRCS and approved by the Conservation District. This conservation plan shall be developed using standards and specifications of the NRCS Field Office Technical Guide and 7 CFR Part 12 that are in effect on the date this Easement Deed is executed. However, the Grantor may develop and implement a conservation plan that proposes a higher level of conservation and is consistent with NRCS Field Office Technical Guide standards and specifications. NRCS shall have the right to enter upon the Property, with advanced notice to the Grantor, in order to monitor compliance with the conservation plan. In the event of noncompliance with the conservation plan, NRCS shall work with the Grantor to explore methods of compliance and give the Grantor a reasonable amount of time, not to exceed twelve months, to take corrective action. If the Grantor does not comply with the conservation plan, NRCS will inform the County of the Grantor's noncompliance. The County shall take all reasonable steps (including efforts at securing voluntary compliance and, if necessary, appropriate legal action) to secure compliance with the conservation plan following written notification from NRCS that (a) there is a substantial, ongoing event or circumstance of non - compliance with the conservation plan, (b) NRCS has worked with the Grantor to correct such noncompliance, and (c) Grantor has exhausted its appeal rights under applicable NRCS regulations. If the NRCS standards and specifications for highly erodible land are revised after the date of this Deed based on an Act of Congress, NRCS will work cooperatively with the Grantor to develop and implement a revised conservation plan. The provisions of this section apply to the highly erodible land conservation requirements of the Farm and Ranch Lands Protection Program and are not intended to affect other natural resources conservation requirements to which the Grantor may be or become subject. Be For the purpose of this Conservation Easement, references and requirements relating to highly erodible lands do not apply to land over which this Conservation Easement is granted. There are no highly erodible lands on the Property and none have been designated in Whatcom County. IX. RIGHTS CONVEYED TO GRANTEES. -6- To accomplish the purpose of this Easement, the following rights are conveyed to Grantees: A. To accomplish the purpose of this Easement and to enforce specific rights and restrictions contained in the Easement Deed. B. (1) To enter the land at least once a year, at a mutually agreeable time and upon notice to the Grantor, for the purpose of inspection and monitoring compliance with this Easement; (2) To enter the land at such other times as' necessary if the Trust has reason to believe that a violation .of the Easement is occurring or has occurred, for the purpose of mitigating or terminating the violation and otherwise enforcing the provisions of the Easement. Such entry will be with prior notice as is reasonable under the circumstances. co In the event of uses or activities inconsistent with the purpose and provisions of this Easement, The Trust may obtain damages, an injunction, abatement, rescission, restoration and any other remedies available in law or equity. D. Forbearance by The Trust to exercise any rights under this Easement in the event of a breach shall not be deemed to be a waiver of Grantees' rights under the Easement. X. NO PUBLIC ACCESS. This Easement provides no right of access to the general public. XI. BASELINE DATA. To establish the present condition of the Property so that the Trust is able to monitor future uses and assure compliance with the terms of this Easement; the Trust will, at its expense, by the date of this Easement prepare baseline data sufficient to establish the condition of the Property as of the signing of this Easement Deed. The baseline data may consist of reports, maps, photographs, and other documentation. The baseline data will specifically establish the extent of the Farmstead, which includes that portion of the Property used for primary and secondary agricultural buildings, structures and improvements and those adjacent areas where future expansion of buildings, structures and improvements are contemplated. The area.not included in the Farmstead will be depicted under the category of "Farmland ". Farmland may include nonfarm areas such as critical areas and woodlands as well as cropland or grazing land. Grantor and the Trust will execute a statement verifying that the baseline data accurately represents the condition of the Property as of this time. Baseline data is contained in Exhibit D. . -7- XII. INFORMAL DISPUTE RESOLUTION. Grantor agrees to notify the Trust of any intended action that a reasonable person might believe would violate the terms of this Easement. Should a dispute arise concerning compliance with this Easement, Grantor and the Trust will meet within 15 days to discuss the matter in dispute. By mutual agreement, the Grantor and the Trust may agree to refer the matter in dispute to mediation or arbitration under such rules as the parties may agree. If arbitration is pursued, the prevailing party will be entitled to such relief as may be granted, to a reasonable sum for its costs and expenses related to the arbitration, including fees and expenses of the arbitrator and attorneys. The Trust may, at its discretion, forgo these informal dispute resolution alternatives if continuation of the use or activity in dispute threatens the purpose of this Easement. XIII. GRANTEES' REMEDIES. A. If the Trust determines that the Grantor is in violation of the terms of this Easement or that a violation is threatened, the Trust shall give written notice to the Grantor of such violation and request corrective action sufficient to cure the violation and to restore the Property to its prior condition. B. If Grantor does not take immediate action to cure the violation and restore the Property, the Trust may institute legal proceedings for injunctive relief, abatement, restoration, rescission of contract, or damages, including costs and attorneys' fees reasonably incurred in prosecuting the action, and any other remedies available in law or equity. Co In the event that the Trust takes legal action to enforce the terms of this Easement, the cost of restoring the Property and the Trust's reasonable enforcement expenses, including attorneys' and consultants' fees, shall be borne by the .Grantor. In the event the Trust secures redress for an Easement violation without initiating or completing judicial proceedings, the cost of such restoration and reasonable expenses shall be borne by the Grantor. If Grantor ultimately prevails in any judicial proceedings initiated by the Trust to enforce the terms of this Easement, each parry shall bear its own costs. D. If the Trust, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage in violation of this Easement, the Trust may immediately pursue its legal remedies without prior notice to Grantor as set forth in paragraph A. I E. The Trust may not recover damages or require restoration for damage to the Property resulting from causes beyond Grantor's control, such as fire, flood, -8- storm, or earth movement that Grantor could not reasonably have anticipated or prevented. XIV. RESPONSIBILITY FOR COST AND LIABILITIES. Grantees assume no affirmative obligations for the management, supervision or control of the Property or any of the activities occurring on the Property. Grantor 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 maintenance of adequate liability insurance and payment of all taxes. Grantor shall indemnify Grantees and the United States, and hold Grantees and the United States harmless from all damages, costs (including, but not limited to, attorneys' fees and other costs of defense incurred by Grantees), and other expenses of every kind arising from or incident to any claim or action for damages including but not limited to, the release, use or deposit of any hazardous substance on the Property, injury or loss suffered or alleged to have been suffered on or with respect to the Property. XV. EXTINGUISHMENT AND TRANSFER. A. If circumstances arise that render the purpose of this Easement impossible to .accomplish, the Easement can be extinguished only by judicial proceedings and upon approval of the United States. In the event of such an extinguishment or the taking of the Property by the exercise of the power of eminent domain, Grantor shall pay to Whatcom County and the United States in proportion to their contribution to the purchase price. At the time this Deed was recorded the United States contribution was 50 percent and Whatcom. County's contribution was 50 percent. The amount owed to the United States and Whatcom County shall be determined by subtracting the fair market value- of the Property subject to this Easement from the fair market value of the property unrestricted by this Easement, at the time of extinguishment or condemnation B. - Grantor agrees to: 10 Incorporate the terms of this Easement by reference in any deed, lease, executory contract or other legal instrument by which it divest itself, or intends to divest itself, of any permanent or temporary interest in the Property. 2. Give written notice to the Trust of the. transfer of any interest in the Property no later than 45 days prior to the date of such transfer. Such notice shall include the name, address, and telephone number of the prospective recipient. Failure to provide such notice to the Trust shall -9- not limit the legal obligations imposed by this Easement on any recipient of an interest in the Property. C. The Trust's rights and interest in this Easement are assignable only to an agency or organization that is approved by United States and Whatcom County and authorized to hold conservation easements under RCW 64.04.130 or RCW 84.34.250, or otherwise qualified at the time of transfer under Section 170(h) of the Internal Revenue Code of 1986, as amended. As a condition of such transfer, the Trust shall require that the transferee exercise its rights under the assignment consistent with- the purpose of this Easement. The Trust shall notify Grantor in writing in advance of such an assignment. The failure of the Trust to give such notice shall not affect the validity of such assignment, nor shall it impair the validity of this Easement or limit its enforceability. XVI. AMENDMENT. Upon approval of the United States, Grantor and all Grantees may agree to amend this Easement provided that such an amendment does not diminish the effectiveness of this Easement in carrying out its purpose and that the result of the amendment is to strengthen the effectiveness of the Easement. XVII. SUBORDINATION. Any mortgage or lien arising after the date of this conservation easement Deed shall be subordinated to the terms of this easement. XVIII. GENERAL PROVISIONS A. Controlling Law. The interpretation or performance of this Easement shall be governed by the laws of the State of Washington. Any legal proceeding regarding this Easement shall be initiated in Whatcom County Superior Court. B. Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Easement shall be liberally construed in favor of the grant to effect the purpose of this Easement and the policy and purpose of RCW 64.04.130 and Chapter 84.34 RCW and Whatcom County Ordinance 2002 -054. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purpose of this Easement that would render that provision valid shall be favored over an interpretation that would render it invalid. C. Severability. -10- If any provision of this Easement, or its application to any person or circumstance, is found to be invalid, the remainder of the Easement, or its application of such provision to persons or circumstances other than those to which it is found to be invalid, as the case may be, shall not be affected. D. Entire Agreement. This instrument sets forth the entire agreement of the parties with respect to the Property and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Property, all of which are merged into this Easement. E. No Forfeiture. Nothing contained in this Easement will result in a forfeiture or revision of Grantor's title in any respect. F. Warranty of Good Title. Grantor warrants that Grantor has good title to the Property; that the Grantor has the right to convey this conservation easement; and that the Property is free and clear of any encumbrances other than those listed below. G. Grantor - Grantees. The terms "Grantors" and "Grantees," wherever used in this Easement, and any pronouns used in their place, shall be held to mean and include respectively the above named Grantor, its, successors, and assigns, and the above -named Grantees, their successors and assigns. H. Successors and Assigns. The covenants, terms, conditions, and restrictions of this Easement shall be binding upon, and inure to the benefit of, the parties to this Easement and their respective successors, and assigns, and shall continue as a servitude running in perpetuity with the Property. I. Federal Enforcement. In the event that the Grantees fail to enforce the terms of this Easement as determined in the sole' discretion of the Secretary of the United States Department of Agriculture ( "Secretary "), the Secretary, his or her successors and assigns shall have the right to enforce the terms of the Easement through any and all authorities available under Federal or Sate law. In the event that the Trust attempts to terminate, transfer or otherwise divest itself of rights, title or interest in the Easement or extinguish the Easement without prior consent of the Secretary, all right, title, or interest in this Easement shall become vested in the United States of America. 4 1- J. General Indemnification Grantor shall indemnify and hold harmless Grantees, their employees, agents and assigns for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties, suits, proceedings, actions and costs of actions, sanctions asserted by or on behalf of any person or governmental authority, and other liabilities (whether legal or equitable in nature and including, without limitation, court costs, and reasonable attorney's fees and attorney's fees on appeal) to which Grantees may be subject or incur relating to the Property, which may arise from, but not limited to, Grantor's negligent acts or omissions or Grantor's breach of any representation, warranty, covenant, agreements contained in this Deed, or violations • of any Federal, State, or local laws, including all Environmental Laws. K. Environmental Warranty Grantor warrants that it is in compliance with, and shall remain in compliance with, all applicable Environmental Laws. Grantor warrants that there are no notices by any governmental authority of any violation or alleged violation of, non- compliance or alleged non - compliance with or any liability under any Environmental Law relating to the operations or conditions of the Property. Grantor further warrants that it has no actual knowledge of a release or threatened release of Hazardous Materials, as such substances and wastes are defined by applicable federal and state law. Moreover, Grantor hereby promises to hold harmless and indemnify the Grantees against all litigation, claims, demands, penalties and damages, including reasonable attorneys' fees, arising from or connected with the release or threatened release of any Hazardous Materials on, at, beneath or from the Property, or arising from or connected with a violation of any Environmental Laws by Grantor or any other prior owner of the Property. Grantor's indemnification obligation shall not be affected by any authorizations provided by the Trust, the County, or the United States to Grantor with respect to the Property or any restoration activities carried out by the Trust or the County at the Property; provided, however, that Grantee shall be responsible for any Hazardous Materials contributed after this date to the Property by Trust or the County. "Environmental Law" or "Environmental Laws" means any and all Federal, state, local or municipal laws, rules,. orders, regulations, statutes, ordinances, codes, guidelines, policies or requirements of any governmental authority regulating or imposing standards of liability or standards of conduct (including common law) concerning air, water, solid waste, hazardous materials, worker and community right -to -know, hazard communication, noise, radioactive material, resource protection, subdivision, inland wetlands and watercourses, 42- health protection and similar environmental health, safety, building and land use as may now or at any time hereafter be in effect. "Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils, explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals, hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic chemicals, radioactive materials, infectious materials and any other element, compound, mixture, solution or substance which may pose a present or potential hazard to human health or the environment. XIX. SCHEDULE OF EXHIBITS. A. Legal Description of Property Subject to Easement Be Site Map C. Ordinance # 2002 -054 D. Baseline Data TO HAVE AND TO HOLD unto Grantees, their successors, and assigns forever. REMAINDER OF PAGE IS INTENTIONALLY BLANK; SIGNATURE PAGES FOLLOW -13- IN WITNESS WHEREOF, the undersigned Grantors have executed this instrument this day of STATE OF WASHINGTON ss. COUNTY OF WHATCOM 200_ Grantor Grantor I certify that I know or have satisfactory evidence that 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 of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name My commission expires. 44- STATE OF WASHINGTON ) ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that 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 of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name My commission expires 45- WHATCOM COUNTY does hereby accept the above Grant Deed of Agricultural Conservation Easement. Dated: Approved as to Legal Form: STATE OF WASHINGTON ss. COUNTY OF WHATCOM Grantee :A Pete a Executive Senior Civil Deputy Prosecuting Attny I certify that I know or have satisfactory evidence that 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 of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary Public Print Name My commission expires -16- ACCEPTANCE OF PROPERTY INTEREST BY THE NATURAL RESOURCES CONSERVATION SERVICE The Natural Resources Conservation Service, an agency of the United States Government, hereby accepts and approves the foregoing conservation easement deed, and the rights conveyed therein, on behalf of the United States of America. Authorized Signatory for the NRCS State of County of 0 - On this day of , 200_, before me, the undersigned, a Notary Public in and for the State, personally appeared known or proved to me to be the person whose signature appears above, and who being duly sworn by me, did say that he is the Contracting Officer of the Natural Resources Conservation Service, United States Department of Agriculture, is authorized to sign on behalf of the agency, and acknowledged and accepted the rights conveyed by the deed to be his voluntary act and deed. In witness whereof, I have hereunto set my hand and official seal the day and year first above written. Notary Public for the State of Washington Residing at My Commission Expires 47- The WHATCOM LAND TRUST, a Washington nonprofit corporation, does hereby accept the above Grant Deed of Agricultural Conservation Easement. Dated: M Its STATE OF WASHINGTON ) ) ss. COUNTY OF WHATCOM ) I certify that I know or have satisfactory evidence that 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 of to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. . Dated: kuse tnts space for notanai stamptseat) Notary Public Print Name My commission expires -1 g- l EXHIBIT A 2 3 Legal Description 4 5 THE SOUTH 12 ACRES OF THE SOUTHEAST QUARTER OF THE SOUTHEAST 6 QUARTER OF SECTION 13, TOWNSHIP 40 NORTH, RANGE 1 EAST OF W.M. 7 8 SITUATE IN WHATCOM COUNTY, WASHINGTON. 9 10 APN: 400113 468026 0000 A4 > > dd m X �. ltaa n tI I a k.. d, Iodti ds 0. t h "S�F p t u .. �j � �? 4� � tt 1 j _,uV7 tiC LY LY: esu 4 t n . r�ry OL ITL jSk } dd. - ` ,�• ikY�$�y1 dpip'i3_py!1y1�wt- '9�µF��{.�4��P� �"t'i Sf�,j {j�.i� t \ ~ � vT rS;t.T Wt3 did- 4� 1�jI I - �3 t '1 o�{,iyj �;R 4 p 1�7 1 r r t♦ z` p s r[rt S .YAW t 1�icf •Vr 4 i } ?eu t `v Odd. Si 1 r .¢F a Sn j..: Id lf�v MaliT ijac . Iwuiw I% gyp" Ijsk� �* •,`teE 5 �1F �S Y v c y I EXHIBIT C: Ordinance 2 t t C OR Y � P.L EF11, i ub 3 4 PROPOSED BY: Planning 5 iNT,R4DUCTION DATE: 8113J02 6 7 8 ORDINANCE NG, . 2.002 -0 5 9 10 ESTABLISHING AN AGRtCULTULTURAL PURCHASE OF DEVELOPIJENIT RIGHTS 11 PROGRAM AND OVERSIGHT COMM TTt:E 12 111 14 WHEREAS, Matoom County government recognizes agriculture as a moos' ooatrabutor 15 to tt local economy and a high quality of fide for Whatcom County citizens; and 16 17 WHEREAS, The Growth ManagemoInt Act a Wil the Cownty Comprehensive Plan support 18 the retention of agri�culturat Mends of gang term commercial siajnlfic,ance and enc,ouirage 19 the use of irr ratrrre teclanques to do so, and 20 WHERM, Ordirrance 2 -002 enacted a property tax levy krmin as the Conservation 21 Futures Tax as aulhofiized by RCW x!,34, 230 to provide .a fundir g source to assist in 22 acquiring open spa , wetl,ar ft, form and agricultural land . and limber tam; and 23 24 WHEMAS., Resolution# 20014 49i aiuthorized the cresdon of aPurcriaseof 25 velo'pment Rights Steering Committee v iith the charge to develop a PDR program for 25 Whatcorn County try April ♦ 0.., 2002 and authorized the County E:xecuti to expend up to 27 Sr30,000 for outside contrast assistance In preparing the Pt programs and 28 WREREA , Resolution 02001 -049 also committed the Council to expend a fair and 29 significant stare of the Conservation Futuna Funds for acgiuiring interest in agricu tural 30 lams; and 31 32 lltil'HEREA�,i3, The Purchase of �opment Rights Steering Committee met regularly 33 from October 2001 through April 2002 and forwarded a re mmendaticn in -may of 20t�2: 34 and 35 'WHEREAS, Council reviewed the Ourctasa of Developnwt recornme?datton from the 36 PDR Steering Committee and requested POS staff to develop a Purchase of 37 Development Rights Ordira e; and 38 39 WHEREAS, Council herd a; public hearing on September 10, 2002 to take public 40 comment on the Agiricultuoral Purchase of Covelopment Rights program.. 41 HOT, THEREFORE, BE IT ORDAINED by the Whatoom County Council that 42 43 1 The Agricultural Purchase of Development Rights program ir* :adopted as. attached in 44 1&hibll 1. G1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2_ Aoudicaticn. of invalidihj of any of to sections., clauses,. or, provisions of this ordinance shall not affect or impair Via validity of the orftanoe as a whole or any part thereof other than the pert so decFared to be invaNd. ADOPTED this 10 day of . Sepcembrtr ,.2002- A MST: Clark of the .Council Karen N. l'ral m, Civil Deputy >i+YHATCOM COUNTY COUNCIL brd' NetsoA, iindf Chair ell (41c; proved Den.W11 C P "K semen, Executive C -2 EXHIBIT D 2 3 Baseline Documentation 4 5 To be added (under development by Whatcom Land Trust) D4