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HomeMy WebLinkAboutres2005-002If HATCOM COUNTY COUNCIL AGENDA BILL NO. 2005 -031 CLEARANCES Initial Date Date Received in Council Office A enda Dare Assi nedne Originator: Kraig Otason 1111105 Finance /Council Division Head: Sylvia Goodwin Dept. Head: Hal H. Hart Prosecutor: Karen Frakes P��/a Purchasing /Budget: Executive: / 1 SUBJECT: Resolution for authorization of the purchase ofa conservation easement on the Oersegner daby. ATTACHMENTS: Memo, Resolution, Memo -Karen Frakes, Purchase and Sales Agreement, Letter of acceptance afprice and cons ervation easement conditions, the conservation easement and site map. SEPA review required? ( ) Yes ( x ) NO SEPA review completed? ( ) Yes ( ) NO Should Clerk schedule a hearing ? ( ) Yes, (X ) NO Requested Date: SUMMARYSTATEMENT: Authorization ofpurchase ofa conservation easement under WCC 3.25A— Purchase of Agricultural Development Rights Program. This is the secondpurchuse under the PDR program. Matchingfunds have been authorized by USDA or 50% o the urchase rice A su lemenfal 1 f f P et PP budget request has been included in Supplemental Budget #1, 2005 Distribution Request /ndimte those who should receive a copy after Council action. List speci is names to the right. ADS Facilities Management ADS Finance ADS Human Resmvtms ADS Info Services Assessor Auditor Cooperative Extension District Court Executive PeteKnemen Health Hearing Examiner Jail COUNCIL ACTION TAKEN: 1/11/2005: Approved 6 -0, Roy out of the room, Res. 42005 -002 Juvenile Parks Planning Hal. H Hart Prosecutor Karen Frakes Public War" Sheri Superior Court Related Cmmry Contract #: Treasurer Other Related File Numbers: Ordinance or Resolution Number (this item): Resolution #2005 -002 INTRODUCTION DATE: 1/11/05 RESOLUTION NO. 2005 -002 AUTHORIZING WHATCOM COUNTY EXECUTIVE TO PURCHASE DEVELOPMENT RIGHTS ON DALE GORSEGNER 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 992 -002 enacted a property tax levy (mown 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, Resolution # 2003 -025 affirmed the ranking of the applicants from Round 1 and Resolution #2004 -002 affirmed the ranking of applicants for Round 2 and authorized the PDR Administrator to proceed with acquisition process, and WHEREAS, The Gorsegner 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, 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 I: \2 Planning Division \l PDR Progmm\Applicents 2003 \Gorse9nertres gorsegnerpurchne.do 1. The Executive is authorized to enter into a purchase and sale agreement as included in exhibit 1 of this resolution and purchase the development rights 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 and sale agreement are satisfied. ADOPTED this firth day of January 12005 APPROVED as to to= Karen Frakes, vil Deputy Prosecutor WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON Counoi] Chair, Laurie caskey- Schreiner ( pproved O Denied Llw� ete Kremen, Executive Date: / *--05 I t Planning Dmssiono PDR PmgmmV pplicants 2003 \Gorsegne6res gomegnerpurohase . doc Exhibit 1 PURCHASE AND SALE AGREEMENT This CONSERVATION EASEMENT PURCHASE AND SALE AGREEMENT ( "Agreement') is entered into on 2005 between Whatcom County, a municipal corporation (`Buyer "), and Dale Gorsegner, (`Seller"). RECITALS: A. Seller is fee simple owner of real property (the "Property ") in Whatcom County, Washington. Exhibit A 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 E protection conservatit Trust are grantees, z reference. D. The It conservation a semer protecting topsoil f acknowledges that $1 States), through the F the rights identified it -i8 -0 FULLY L`' GX EC U T�G7 D lm Co ty an an agricultural r l� � '�r / rm Count and Whatcom Land CCPl' O ��— CI -MENT' and is incorporated herein by Wti L..BEAVAILABL :5 ON AT THE tl-<EGUT EE /� Tam s purpose is to purchase WLJ NTY luctive soil for the purpose of (16 USC 3838h -1). Seller OFF lcf�: artment of Agriculture (United thus entitles such Secretary to OR ColtMY CCUNGL E. The Pr -entlyfarmed. F. The Pt he 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 in Exhibit C, to preserve land for agricultural purposes and has substantial public benefits. H. As owner of the Property, Seller has 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, Seller and Buyer agree as follows: AGREEMENT 1. Real Pronert v. Seller agrees to sell and Buyer agrees 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 Seller and the Whatcom Land Trust agreeing on the Baseline Data as described in Section X of the Easement. This Agreement is also contingent upon United States Department of Agriculture providing a portion of the purchase price in the amount of $115,100. If United States Department of Agriculture does not provide said amount, this Agreement shall be null and void. 2. Purchase Price. The total purchase price for the Conservation Easement ( "Purchase Price ") is two hundred thirty thousand two hundred DOLLARS ($230,200). The Purchase Price, less the Seller's share of closing costs, will be paid to Seller at closing. 3. Title Policy. Seller 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. Closin . The costs of closing, including but not limited to title insurance and fees of an escrow agent, if any, shall be divided and home equally by the parties. The Seller's 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 NW Drive Bellingham, WA 98226 -2- 1 @ Planning ammoal PER PnoaamNpgtrams zOWwwaegnen 10 PorUaae 5 sale PgreenenLew With a copy to: Whatcom County Prosecutor's Office Attn: Karen Frakes 311 Grand Ave. Bellingham, WA 98225 Facsimile No.: 360 - 738 -4561 Seller: Dale Gorsgner 221 E. Hemmi Rd. Lyndon, WA 98264 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. 7. 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. 8. Amendments. This Agreement may be amended or modified only by a written instrument executed by Seller and Buyer. 9. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the state of Washington. 10. 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. 11. Nonmereer. 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. 12. Assignment. Buyer shall not assign this Agreement without Seller's prior written consent. Seller 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. -3- U Planning amsW1 Poa Pm9mmUpllan,e 3003Gasegre anal Punta» d Sale Aareementa« 13. 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. 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. -4- L2 Bening Drvantl POR Pmgam ph is 200316 segn anal Pu tl aw & Sale Agreement do IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth above. BUYER: SELLER: WHATCOM COUNTY, a municipal corporation Dale Gorsegner Pete Kremen, Executive Approved as to form: Deputy Prose i Attorney, Whatcom County -5- I: @Mellen Dmwon\l POR RogantAppllssnls 2WMGvsegne anal Purtnase& Sale Agreement Eoc Purchase of Development Rights Oversight Committee Planning and Development Services, Suite :A 5280 Northwest Drive 360676 -6907 Contact: Kraig Olason December 15, 2004 Dale Gorsegner 210 E. Hemmi Road Lynden, WA 98264 Subject: Proposal to Purchase Development Rights. Dear Dale: Whatcom County is interested in purchasing your development rights on Assessor Parcel number 390319180460. The afore referenced parcels total 39.4 acres and include seven additional residential densities. This offer to purchase the seven residential densities is contingent on authorization by Whatcom County Council and further contingent on approval of the conservation easement and appraisal by the Natural Resource Conservation Service. The offer of $230,200 requires compliance with the provisions of the Whatcom County PDR Program Purchase and Sales Agreement and the recording of the approved conservation easement at closing. Funds would be distributed as a one -time lump -sum payment. If you agree to the terms and requirements of this offer as contained herein and within the other referenced documents please affirm your acceptance by signing in the signature block below. Sincerely, l Kraig Ola /son, PDR Administrator I accept �the offer as described above: Name: Date: c 6 1.\2 Planning Division \I PDR Prog mWpphcema 30OMorscgnerbffer leucr.doc After Recording Return To: Whatcom Land Trust P.O. Box 6131 Bellingham, WA 98227 DOCUMENT TITLE: WHATCOM COUNTY AGRICULTURAL PROTECTION CONSERVATION EASEMENT GRANTOR: DALE GORSEGNER GRANTEES: WHATCOM LAND TRUST AND WHATCOM COUNTY ABBR. LEGAL DESCRIPTION: One tax parcel(s) in Section 19, Township 39 N., Range 3 E of W.M., lying South of the East Hemmt Rd. in Whatcorn County, Washington ASSESSOR'S TAX PARCEL NUMBER(S): 390319 180460 0000 AGRICULTURAL PROTECTION CONSERVATION EASEMENT This grant of an agricultural protection conservation easement ( "Easement ") is made this day of 200_, by Dale Gorsegner (referred to in this document as "Grantor ") to the WHATCOM LAND TRUST AND WHATCOM COUNTY (referred to in this easement as "Grantees.' 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 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 -n. That Grantor acknowledges that $115,100 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. IV Planning Division \I PDR PnanamValpllcanu 2003 \GomepaTinal Conservation Easement USDA doc C. While "Grantees" include both the Whatcom Land Trust and Whatcom County 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 39 acres and is currently farmed or has a potential to be productively fanned. E. The Property has significant agricultural value to Grantees and to the people of Whatcom 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 $230,200 by Whatcom 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. B. This Easement 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 personal representatives, heirs, 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 rQ Planning Division \I PDRP gaoon.pplicanls 2003 \43OrsegnerWinal Conservation Easement USDA.doc 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. IV. RELATIONSHIP OF PARTIES. A. Unless noted otherwise, Whatcom County and the Whatcom Land Trust 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 Tmst 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 his 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. PERMITTED USES AND ACTIVITIES. Grantor may: A. Engage in uses and activities consistent with the purpose of this Easement so long as that use or activity is not expressly prohibited in Section VI 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 contracted by the Grantor on the Property within the "Farmstead ", as defined in section X of this agreement, so long as expansion or new construction does not exceed the area of impervious surfaces allowed in Section VI D. Agricultural strcmres 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 LU Planning Divisio6l PDR Prng am\Applicaras 200nUorsegner \Final Conservation Easement USDA.doc 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 Grantor. 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. E. On the "Homesite ", defined in Section X, engage in any uses or activities that do not impair the ability to farm the remainder of the Property in the present or future and that are not prohibited by Section VI. B, C, F, and H below. VI. PROHIBITED USES AND ACTIVITIES. Unless specifically permitted by Section V 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; 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 [unless specifically reserved under this Conservation Easement], except that an existing single family structure within the "Homesite" may be improved, repaired or replaced and may be expanded only to the extent that it does not exceed 3,000 square feet total dwelling space; D. Cover more than two and one third percent (2.3 %) of the area (45,264 square feet) of the Property with impervious surfaces, including, without limitation, asphalt, concrete, gravel, buildings, or ponds, except that animal waste holding ponds; 112 Planning Division Al PDR Program\ pplicants 2003 \Gorsegner\Fin n Conservation Easement USDA doc E. Construct or expand non - agricultural structures or facilities beyond the boundaries of the °Homesite" as identified in the baseline data (Exhibit E) 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 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 Grantor 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. Grantor may also extract natural gas in the event of pre- existing oil and gas leases, provided such leases are approved by Whatcom County, Whatcom Land Trust and NRCS. 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. VII. CONSERVATION PLAN. A. As required by section 1238I of the Food Security Act of 1985, as amended, the Grantor, his 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 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. L @ Planning Division \I PDR Proinam\ApplicanU 2o03 \GarsegnerTinal Consmation Easement USDA .dw 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 Grantee Whatcom County of the Grantor's 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 Grantor to correct such noncompliance, and (c) Grantor has 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 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 Ranchland Protection Program and are not intended to affect another other natural resources conservation requirements to which the Grantor 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. VITL 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 Grantor, 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. I:@ Planning Division \1 PDR PmWamNpplica U 2003 \Gorsegne Winal Conservation Easement USDA Ad 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. IX. NO PUBLIC ACCESS. This Easement provides no right of access to the general public X. 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 identify the extent of the Homesite, which includes that portion of the Property used for residential buildings and buildings and uses accessory to residential buildings. The Homesite as delineated in the baseline data shall not exceed one acre, or the area actually used for residential purposes at the time this Easement is signed, whichever is greater. 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 either the Homesite or 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 gazing land. Grantor 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. XI. INFORMAL DISPUTE RESOLUTION. Grantor agrees 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, Grantor 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 attorneys. 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. I:@ Planning Division \I PDR Pmg mApplic=n 2003 \6 egner\ final Conservation Easement USDA dw XII. GRANTEES' REMEDIES. A. If Grantees determine that the Grantor is in violation of the terms of this Easement or that a violation is threatened, Grantees 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, 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 Grantor 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 home by Grantor who is 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 Grantor as set forth in paragraph A. E. Grantees may not recover damages or require restoration for damage to the Property resulting from causes beyond Grantor's control, such as fire, flood, storm, or earth movement, that Grantor could not reasonably have anticipated or prevented. XIII. 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 192 Planning Division \i PDRPmgre pplicanta2003 \Grsepu\Final Conservation Easement USDA .doc 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. XN. 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 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. Grantor agrees 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 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. I Q Planning Division \I PDR Pragram\Applican6 20(U GOmsegner \Final Conservation Easement USDA doc XV. AMENDMENT. Upon approval of the United States, Grantor 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. XVI. SUBORDINATION. Any mortgage or lien arising after the date of the conservation easement shall be subordinated to the terms of this easement. XVIL 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. 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 Apteement. 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. 10 1:U Planning Division \I PDR PmgtamWpplicanu 2003 \GonegncNVinal Consmation Easement USDA doc E. No Forfeiture. Nothing contained in this Easement will result in a forfeiture or revision of Grantor's title in any respect. F. W aranty 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 "Grantor" 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, his 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 terns 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 terms of the Easement through any and all authorities available under Federal or Sate law. In the event that the Grantee 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. XVIII. SCHEDULE OF EXHIBITS. A. Legal Description of Property Subject to Easement. B. Site Map. C. Ordinance # 2002 -054 D. Jordan Lease Agreement E. Baseline Data 11 La Planning Division\I PUS PmgamWpplicants 2MNGorsegneffinal Conservation Easement USDA.doc 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. Signatory for the NRCS Date State of County of 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 12 IR Planning Division \1 PDR PmgramWpplicants 2(XlMorsegneffinal Conservation Easement USDA .dm IN WITNESS WHEREOF, Grantor and Grantees have executed this Conservation Easement this day of , 200. GRANTOR: Dale Gorsegner By: Dale Gorsegner, Owner STATE OF WASHINGTON ) as: COUNTY OF WHATCOM 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: 13 U2 Planning Division) PDRPmgm pplicants2W3\GersepffTinal Consmation Easement USDA doe GRANTEE: WHATCOM COUNTY By: Pete Kremen, County Executive APPROVED AS TO LEGAL FORM: Senio 1 I Depu Prosecuting Attomey STATE OF WASHINGTON ) as: COUNTY OF WHATCOM On this day of , 200_, 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 Ex 14 LV Planning Division \I PDR Progrem\ApplicanD 2001 \GorsegnizTnial Conservation Ease=nt USDA .dw GRANTEE THE LAND TRUST: WHATCOM LAND TRUST STATE OF WASHINGTON ) ss. COUNTY OF WHATCOM On this day of , 200_, before 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. NOTARY PUBLIC Print Name: My Commission Expires: 15 193 Planning Division \l PDR PmgwnNpplicenu 2003 \GorsegnerTinal Conservation Easement USDA M Exhibit A Legal Description Parcel # 390319 180460 0000 THE NORTHEAST QUARTER OF THE NORTHWEST QUARTER OF SECTION 19, TOWNSHIP 39 NORTH. RANGE 3 EAST OF W.M.. LESS ROADS SITUATE IN COUNTY OF WHATCOM, STATE OF WASHINGTON rr 3 m �3 a E4 Exhibit C SPONSORED BY: Planning PROPOSED BY: Planning INTRODUCTION DATE: 8/13/02 ORDINANCE NO. 2002 -054 ESTABLISHING AN AGRICULTULTURAL 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 FOR program; and WHEREAS, Resolution #2001 -049 also committed the Council to expend a fair and signifcant 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 FOR 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. ATTEST: Dana Brown- Davis, Clerk of the Council APPROVED as to form i Karen N. Frakes, Civil Deputy Prosecutor WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON o i Ward NelsokMuncrrChair (a'Approved ( ) Denied 6 Kremer, Executive Exhibit D AMENDMENT OF OIL AND GAS LEASE Lease# 46- 073 -0562 STATE OF Washington ) )SS COUNTY OF Whatcom ) WHEREAS, On 15" of August, 2001, Dale Gorsegner, of 221 E. Hemmi Rd., Lynden, WA 98264, hereinafter referred to as "Landowner ", and Jordan Exploration Company, L.L.C. of 1503 Garfield Road North, Traverse City, Michigan 49686, hereinafter referred to as `Jordan", executed an Oil and Gas Lease (the "Lease ") ; WHEREAS, the Lease affects the following real property located in Township 39 North, Range 3 East, Whatcom County, Washington, hereinafter referred to as "the Property ", and legally described as The NE /4 NW /4, less roads. Parcel# 390319 180460 WHEREAS, the Lease was recorded at Reference # 2021204480 of the records of the Auditors office of Whatcom County, Washington; WHEREAS, said Lease is recognized by Landowner as being in full force and effect; and WHEREAS, it is the intent of Landowner to enter into an Agricultural Land Conservation Agreement with the Natural Resources and Conservation Service, United States Department of Agriculture ( "NRCS'�; NOW, THEREFORE, for the sum of $10.00 and other valuable consideration, receipt of which is hereby acknowledged, Landowner and Jordan hereby amend the Lease as follows: 1. Jordan shall limit the location of any wells, flow lines and facility equipment that it may establish on the Property in a manner that will not interfere with the agricultural use of the Property, as defined by NRCS in the aforesaid Agricultural Preservation Agreement. 2. Jordan shall lay all pipeline on the Property at a depth of no less than three feet. 3. Jordan shall not dispose of any produced water, oil, or chemical or mineral waste onto the surface of the Property. Exhibit D 4. Jordan shall not locate any well, and any above- ground structure or facility on the Property a distance of more than 200 feet from an existing road without the prior written approval of the Natural Resources Conservation Service. 5. Jordan shall notify Whatcom County, Whatcom Land Trust and NRCS 30 days prior to initiating siting, drilling or constructing mining related facilities or structures on the property. It is hereby agreed that the above amended provision specifically supercedes the provision(s) originally contained in the Lease. For the consideration provided, Landowner grants, leases and lets to Jordan the Lands for the term provided in the Lease, as it is amended by this Agreement. Dated this day of , 200_. :W• p Dale Gorsegner Exhibit D JORDAN: Jordan Exploration Company, L.L.C. Its: Managing Member STATE OF Washington ) )SS COUNTY OF Whatcom ) The foregoing was acknowledged before me this day of , 200_, by [Land owner name here] My Commission Notary Public in and for County of Whatcom, State of Washington STATE OF MICHIGAN ) )SS COUNTY OF Grand Traverse ) On this day personally appeared before me , to me known to be the individual described in and who executed the foregoing instrument and a acknowledged that he /she /they signed the same as his/her /their free and voluntary act and deed, for the uses and purposes therein mentioned. Given under my hand and official seal this day of , 200_ My Commission Expires: Notary Public in and for Grand Traverse County, Michigan