HomeMy WebLinkAboutres2007-059WHATCOM COUNTY COUNCIL AGENDA BILL NO.
2007 --418
CLEARANCES
Initial
Date
Date Received in Council Office
Agenda Date
Assigned to:
Originator:
Samya Lutz
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10/10/07
MID E L_,
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10123107
P &D /Council
Division Head-
Linda Peterson
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Dept. Head;
Sam Ryan
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Prosecutor:
Royce Buckingham
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Purchasing /Budget;
Brad Bennett
Executive:
Pete Kremen
TITLE bF D CUMENT.•
Resolution for authorization of the purchase of a conservation easement on the Ebe farm property
ATTACHMENTS:
Memo, Resolution, Agreement Covering Terms of Sale, Regional property location map, and 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:
SUMMARY STATEMENT 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 Ebe farm property is the eighth purchase under the PDR program. Matching
funds have been authorized by USDA for 50% of the purchase price. A supplemental budget request will be
included in Supplemental Budget #11, 2007.
COMMITTEEACTION:
COUNCIL ACTION:
10/23/2007: forwarded to Council for approval
10/23/2007: Council .Approved 7 -0
Res. 2007 -059
Related County Contract #:
Related File Numbers:
Ordinance or Resolution Number:
Res. 2007 -059
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing andprinting on
the County's website at: www co. whatcom. wa. usleouncil.
L\2 Planning Divisionll PDR ProgramlApplicants- 20051Ebe1PDR program does_ correspondancc lEbe.agenda_bill.doc
SPONSORED BY: Consent
PROPOSED BY: Planning
INTRODUCTION DATE: 10/23/2007
RESOLUTION # 2007 -059
AUTHORIZING W1 ATCOM COUNTY EXECUTIVE TO PURCHASE DEVELOPMENT
RIGHTS ON THE EBE 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 complies with the
PDR Guidelines, recommended this property for purchase, and authorized the PDR Administrator to
proceed with the acquisition process on August 3, 2007; and
WHEREAS, The Ebe 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 landowners have 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 rights 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 purchase are satisfied.
APPROVED this 23
day of October , 2007
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04' coin Ali .r
APPROVED as to form:
Civil e �r
P. 2
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
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Carl Weimer, Chairperson
ete Kremen, Executive
Date: /0,C) 5,4 7
EXA&1 o'It IB
Ebe Property
0.2 0 0.2 0.4 Miles
Total of Two Parcels: R5A Zone N
West Parcel - 400231324070 (30.0 acres)
East Parcel - 400231370070 (10.38 acres)
*Located on Harksell Road, east of 15
O
E
AGREEMENT COVERING TERMS OF SALE
This AGREEMENT COVERING TERMS OF SALE OF A CONSERVATION
EASEMENT ( "Agreement ") is entered into on E.-`- month/day 17-- , 2007 between
Whatcom County, a municipal corporation (`Buyer "), and Greg Ebe ( "Seller ").
The purpose of this agreement is clarify the general terms of sale involved in the
purchase of an agricultural protection conservation easement on the Ebe Farm Property, a
property of approximately 40.38 acres within the SE corner of Section 31, Township 40,
Range 2 East of unincorporated Whatcom County, WA.
The property is being purchased under the County's Purchase of Development Rights
Program. This program includes matching funds from the United States Department of
Agriculture's Farm and Ranchland Protection program and local "Conservation Futures"
funds.
Whatcom County anticipates a decision regarding this purchase within 60 days. This
agreement constitutes a commitment on the part of the Sellers to the following:
1. Real Property. Sellers agree to sell 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 Section XI of the Easement, upon United States
Department of Agriculture providing a portion of the purchase price in the amount of
$127,500 and upon Whatcom County Council allocating funds and authorizing purchase
of the conservation easement on property.
2. Agreed Price. The price offered for the Conservation Easement ( "Agreed
Price ") is two hundred and fifty -five thousand DOLLARS ($255,000.00). The Agreed
Price, less the Sellers' 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 Offer 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 (the "Closing Date ").
4. Closing. The costs of closing, including but not limited to title insurance
and fees of an escrow agent, shall be divided and borne equally by the parties except for
excise tax 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. Amendments. This Agreement may be amended or modified only by a
written instrument executed by Seller and Buyer.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
BUYER:
WHATCOM COUNTY, a municipal
corporation
4"ate.-. 6 A0/0
Kraig Olaso ,
PDR Administrator
Approved as to form:
Date: /C1'/(/ 'D 7
, "em osecuting Attorney, Whatcom
Co 91ty
SELLERS:
Date:
EBE
CONSERVATION EASEMENT
PURCHASE AND SALE AGREEMENT
This CONSERVATION EASEMENT PURCHASE AND SALE AGREEMENT
( "Agreement ") is entered into on month/date , 2007 between Whatcom
County, a municipal corporation ( "Buyer "), and Leonard Ebe Real Estate, LLC, property
owners ( "Sellers ").
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.
B. The Buyer wishes to protect the Property from development and preserve
its quality as productive farmland.
C. The Buyer desires to purchase and the Sellers desire to sell an agricultural
protection conservation easement (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 (lb USC
3838h -I). Sellers acknowledge that $127,500 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 40.38 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 E of Attachment #1.
2. Purchase Price. The total purchase price for the Conservation Easement
( "Purchase Price ") is two hundred and fifty -five thousand DOLLARS ($255,000.00).
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 (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: Kraig Olason
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: Greg Ebe
2212 Birch Bay - Lynden Road
Custer, WA 98240
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. Assign ent. 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
BUYER:
WHATCOM COUNTY, a municipal
corporation
Pete Kremen, Executive
Date:
Approved as to fo
Depu r g Attorney, Whatcom
County
Date: �� v
SELLERS:
Property Owners:
Greg Ebe,
Date:
Date:
After Recording Return To:
Whatcom Land Trust
P.O. Box 6131
Bellingham, WA 98227
DOCUMENT TITLE: WHATCOM COUNTY AGRICULTURAL PROTECTION CONSERVATION
EASEMENT
GRANTORS: LEONARD EBE REAL ESTATE
GRANTEES: WHATCOM LAND TRUST, WHATCOM COUNTY AND UNITED STATES OF
AMERICA
ABBR. LEGAL DESCRIPTION: P# 400231 370070 — S 1321.54 ft mll of W `/ SE — subj to esmt — exc W
30 acres of tr daf — S 1321.54 ft mll of W '/z SE — less roads; and
P# 400231 324070 — W 30 acres of tr daf — S 1321.54 ft mll of W '/ SE —
less roads
of SE. 31, TWP. 40N, RA. 2E of W.M.
EBE AGRICULTURAL PROTECTION
CONSERVATION EASEMENT
This grant of an agricultural protection conservation easement ( "Easement ") is made this
day of 2007, by (referred to in this
document as "Grantors ") to the WHATCOM LAND TRUST, WHATCOM COUNTY, and the
UNITED STATES OF AMERICA (referred to in this easement as "Grantees. ")
I. RECITALS.
The following recitals are a material part of this Easement.
A. Grantors are 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 a site plan for that Property, both of which are attached
and incorporated herein by reference.
B. 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
3838h -I). That Grantor acknowledges that $127,500 was 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 herein.
C. While "Grantees" include both the Whatcom Land Trust, Whatcom County,
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 either Grantee.
D. The Property is approximately 40.38 acres and is currently farmed.
E. The Property has significant agricultural value to Grantees and to the people of
Whatcom County and the State of Washington.
F. Grantors 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 owners of the Property, Grantors have 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 $255,000 by Whatcom County and the United States to Grantors,
Grantors hereby grant, convey and warrant to Grantees a Conservation Easement
in perpetuity over the Property, consisting of certain rights and restrictions as
defined in this Easement.
B. This Easement is a conveyance of an interest in real property under the provisions
of RCW 64.04.130.
C. Grantors and Grantees intend that this Easement run with the land and that it shall
be binding upon Grantor's personal representatives, heirs, successors and assigns
in perpetuity.
FJ
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 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.
1V. 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
Grantors are 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. Grantors shall treat the
Whatcom Land Trust as their 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.
B. 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 VII. A. below.
V. RIGHTS OF THE UNITED STATES OF AMERICA.
A. Under this Conservation Easement, the same rights are granted to the United
States that is granted to Whatcom County and Whatcom Land Trust. However,
the Secretary of the United States Department of Agriculture (Mike Johanns), 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 fails
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
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Easement through any and all authorities available under Federal or State law. In
the event that Whatcom County and Whatcom Land Trust attempts to terminate,
transfer or otherwise divest itself of any rights, title, or interest in this
Conservation Easement without the prior consent of the Secretary and, if
appIicable, payment of consideration of 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.
Grantors may:
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.
B. 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 Grantors 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. AgricuItural 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 Grantee. 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.
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VII. PROHIBITED USES AND ACTIVITIES.
Unless specifically permitted by Section VI above, Grantors 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;
B. 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 does not affect 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 agreement;
C. Place or construct any residential building, structures, or other residential
improvements of any kind.
D. Cover more than two percent (2 %) of the area (approximately 35,179 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;
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 best management practices;
H. Transfer, encumber, lease, sell or otherwise separate water rights from title to the
Property;
Mine or extract soil, sand, gravel, oil or other mineral, except that Grantors may
extract soil, sand, and gravel soley for a permitted use on the Property in a manner
consistent with the conservation purposes of this easement. Such alteration shall
not exceed 2 acres. Land subject to such alteration shall be returned to pre -
activity conditions in accordance with baseline data set forth in Exhibit E.
I
J. Expand or intensify any use or activity existing at the time this Easement is signed
that is contrary to the purpose of this Easement or prohibited in this section.
VI11. CONSERVATION PLAN.
A. As required by section 12381 of the Food Security Act of 1985, as amended, the
Grantors, their heirs, successors, or assigns, shall conduct all agricultural
operations on the Protected 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 is executed. However, the Grantors 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 Grantors, in order to monitor compliance with the
conservation plan.
In the event of noncompliance with the conservation plan, NRCS shall work with
the Grantors to explore methods of compliance and give the Grantors a reasonable
amount of time, not to exceed twelve months, to take corrective action. If the
Grantors do not comply with the conservation plan, NRCS will inform Grantee
Whatcom County of the Grantors' noncompliance. Whatcom 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 Grantors to correct such noncompliance, and (c)
Grantors have exhausted his appeal rights under applicable NRCS regulations.
If the NRCS standards and specifications for highly erodible land are revised after
the date of this Grant based on an Act of Congress, NRCS will work
cooperatively with the Grantors 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 Ranchland Protection Program and are not intended
to affect another other natural resources conservation requirements to which the
Grantors may be or become subject.
B. 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.
0
IX. RIGHTS CONVEYED TO GRANTEES.
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;
B. (1) To enter the land at least once a year, at a mutually agreeable time and
upon notice to the Grantors, for the purpose of inspection and monitoring
compliance with this Easement;
(2) To enter the land at such other times as necessary if Grantees have 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.
C. In the event of uses or activities inconsistent with the purpose and provisions of
this Easement, Grantees may obtain damages, an injunction, abatement,
rescission, restoration and any other remedies available in law or equity.
D. Forbearance by Grantees 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 Grantees are able to monitor future uses
and assure compliance with the terms of this Easement, Grantees will, at their 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. 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. Grantors
7
and Grantees 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 E.
XII. INFORMAL DISPUTE RESOLUTION.
Grantors agree to notify Grantees of any intended action that a reasonable person might believe
to violate the terms of this Easement. Should a dispute arise concerning compliance with this
Easement, Grantors and Grantees will meet within 15 days to discuss the matter in dispute. By
mutual agreement, the Grantor and Grantees 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
attomeys. Grantees may, at their 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 Grantees determine that the Grantors are in violation of the terms of this
Easement or that a violation is threatened, Grantees shall give written notice to the
Grantors of such violation and request corrective action sufficient to cure the
violation and to restore the Property to its prior condition.
B. If Grantors do not take immediate action to cure the violation and restore the
Property, Grantees 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.
C. In the event Grantees take legal action to enforce the terms of this Easement, the
cost of restoring the Property and Grantees' reasonable enforcement expenses,
including attorneys' and consultants' fees, shall be borne by Grantors against
whom a judgment is entered. In the event Grantees secure redress for an
Easement violation without initiating or completing judicial proceedings, the cost
of such restoration and reasonable expenses shall be bome by Grantors who are
otherwise determined to be responsible for the unauthorized use or activity. If
Grantor ultimately prevails in any judicial proceedings initiated by Grantees to
enforce the terms of this Easement, each party shall bear its own costs.
D. If Grantees, in their sole discretion, determine that circumstances require
immediate action to prevent or mitigate significant damage in violation of this
Easement, Grantees may immediately pursue their legal remedies without prior
notice to Grantors as set forth in paragraph A.
8
E. Grantees may not recover damages or require restoration for damage to the
Property resulting from causes beyond Grantors' control, such as fire, flood,
storm, or earth movement, that Grantors 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. Grantors retain 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. Grantors 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, Grantors
shall pay to Whatcom County and the Commodity Credit Corporation in
proportion to their contribution to the purchase price. At the time this easement
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. Grantors agree to:
1. Incorporate the terms of this Easement by reference in any deed, lease,
executory contract or other legal instrument by which he divests himself,
or intends to divest himself, of any permanent or temporary interest in the
Property.
2. Give written notice to the Grantees 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 Grantees shall
0
not limit the legal obligations imposed by this Easement on any recipient
of an interest in the Property.
C. Grantees' 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,
Grantees shall require that the transferee exercise its rights under the assignment
consistent with the purpose of this Easement. Grantees shall notify Grantor in
writing in advance of such an assignment. The failure of Grantees 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, Grantors and 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 the conservation easement 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.
10
C. Severability.
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 Grantors' title
in any respect.
B. 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. Grantors- 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
Grantors, their personal representatives, heirs, successors, and assigns, and the above -
named Grantees, their personal representatives, 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 personal
representatives, heirs, 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 successors and assigns shall have the right to enforce the
11
terms of the Easement through any and all authorities available under Federal or Sate
law. In the event that the Grantees attempt 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.
Indemnification
The landowners shall indemnify, defend, and hold the United States harmless for any
costs, damages, claims, liabilities, and judgments arising from past, present, and future
acts or omissions of Whatcom County and the Whatcom Land Trust in connection with
its acquisition and management of the conservation easements acquired through the Farm
and Ranch Lands Protection Program. This indemnification and hold harmless provision
includes but is not limited to acts and omissions of Whatcom County and the Whatcom
Land Trust agents, successors, assigns, employees, contractors, or lessees in connection
with the acquisition and management of the conservation easements acquired through the
Farm and Ranch Lands Protection Program, which result in violations of any laws and
regulations which are now or which may in the future become applicable.
K. Hazardous Materials Warranty
Whatcom County, the Whatcom Land Trust and the United States of America are not
responsible for the misuse of hazardous materials .
XIX. SCHEDULE OF EXHIBITS.
A. Legal Description of Property Subject to Easement.
B. Site Map.
C. Ordinance # 2002 -054
D. Baseline Data
12
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
Date
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
IN WITNESS WHEREOF, Grantor and Grantees have executed this Conservation Easement this
day of , 200_.
13
GRANTOR(S):
By:
Owner
STATE OF WASHINGTON
) ss:
COUNTY OF WHATCOM
AND
On this day of , 200_, before me personally appeared
to me known to be the land owners and who executed the
above instrument and who acknowledged to me the act of signing and sealing thereof.
DATE:
NOTARY PUBLIC
Printed Name:
My Commission Expires_
14
WHATCOM COUNTY
I;
Pete Kremen, County Executive
APPROVED AS TO LEGAL FORM:
Seim iv'�Y u'ty Prosecuting Attorney
STATE OF WASHINGTON
) ss:
COUNTY OF WHATCOM
On this day of 1200 —, before me personally appeared PETE KREMEN to
me known to be the County Executive of WHATCOM COUNTY and who executed the above
instrument and who acknowledged to me the act of signing and sealing thereof.
DATE:
NOTARY PUBLIC
Printed Name:
My Commission Expires:
15
GRANTEE:
THE LAND TRUST:
WHATCOM LAND TRUST
LE
STATE OF WASHINGTON
) ss.
COUNTY OF WHATCOM
On this day of , 200— be ore me personally appeared
to me known to be and who executed the
above instrument and who acknowledged to me the act of signing and sealing thereof.
I certify that I know or have satisfactory evidence that signed this
instrument and acknowledged it as the of WHATCOM LAND TRUST
to be the free and voluntary act of such party for the uses and purposes mentioned in the
instrument.
DATE:
NOTARY PUBLIC
Print Name:
My Commission Expires:
16
EXHIBIT A
LEGAL DESCRIPTION
PARCEL A:
THE SOUTH 1321.54 FEET MORE OR LESS OF THE WEST HALF OF THE SOUTHEAST QUARTER
OF SECTION 31, TOWNSHIP 40 NORTH, RANGE 2, EAST OF W.M.;
EXCEPT THE WEST 30 ACRES;
EXCEPT COUNTY ROAD NO. 450.
EXCEPT THAT PORTION, IF ANY, LYING NORTH OF THE SOUTH LINE OF THE AMENDED CINCO
SHORT PLAT, RECORDED UNDER RECORDING NO. 1340924.
SITUATE IN WHATCOM COUNTY, WASHINGTON,
PARCEL B:
THE WEST 30 ACRES OF THE FOLLOWING DESCRIBED PARCEL OF LAND:
THE SOUTH 1321.54 FEET, MORE OR LESS, OF THE WEST HALF OF THE SOUTHEAST QUARTER
OF SECTION 31, TOWNSHIP 40 NORTH, RANGE 2 EAST W.M.
EXCEPT COUNTY ROAD NO. 450.
EXCEPT THAT PORTION, IF ANY, LYING NORTH OF THE SOUTH LINE OF THE AMENDED CINCO
SHORT PLAT, RECORDED UNDER RECORDING N0, 1340924 AND ITS EXTENSION WEST.
SITUATE IN WHATCOM COUNTY, WASHINGTON.
APN: 400231 370070 0000
APN: 400231 324070 0000
exklb �t I3
Ebe Property
0.2 0 0.2 0.4 Miles
Total of Two Parcels: R5A Zone
West Parcel - 400231 324070 (30.0 acres)
East Parcel - 400231370070 (10.38 acres)
*Located on Harksell Road, east of 15
S
E
Exhibit C
SPONSORED BY: Planning
PROPOSED BY: Planning
INTRODUCTION DATE: 8/13/02
ORDINANCE NO. 2002 --054
ESTABLISHING AN AGRICULTULTURAt_ PURCHASE OF DEVELOPMENT RIGHTS
PROGRAM AND OVERSIGHT COMMITTEE
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, Resolution # 2001 -049 authorized the creation of a Purchase of
Development Rights Steering Committee with the charge to develop a PDR program for
Whatcom County by April 30, 2002 and authorized the County Executive to expend up to
$30,000 for outside contract assistance in preparing the PDR program; and
WHEREAS, Resolution 92001 -049 also committed the Council to expend a fair and
significant share of the Conservation Futures Funds for acquiring interest in agricultural
lands; and
WHEREAS, The Purchase of Development Rights Steering Committee met regularly
from October 2001 through April 2002 and forwarded a recommendation in May of 2002;
and
WHEREAS, Council reviewed the Purchase of Development recommendation from the
PDR Steering Committee and requested PDS staff to develop a Purchase of
Development Rights Ordinance; and
WHEREAS, Council held a public hearing on September 10, 2002 to take public
comment on the Agricultural Purchase of Development Rights program.
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
1. The Agricultural Purchase of Development Rights program is adopted as attached in
Exhibit 1.
2. Adjudication of invalidity of any of the sections, clauses, or provisions of this
ordinance shall not affect or impair the validity of the ordinance as a whole or any
part thereof other than the part so declared to be invalid.
ADOPTED this 10 day of September , 2002,
WHATCOM COUNTY COUNCIL
ATTEST: WHATCOM COUNTY. WASHINGTON
2
Dana Brown - Darns, r Mrd'Nelsok'06uncir Chair
Clerk of the Council
APPROVED as to form
"4,_ _
Karen N, Frakes, Civil Deputy Prosecutor
( pproved O Denied
Kremen, Executive
Date: