Loading...
HomeMy WebLinkAboutres1991-095WM4TC0M COIJNTY COUNG 4GENDA BILL NO. 91 -426 CLEARANCES Initi Date Date Received in Council Office: Agenda Assigned To: al Date Originator- Executive I" svZ Nov. 25 .D NOV 2 6 1991 12/03/91 Council - Intro Division Head- 12/10/91 Planning /Council Department Head - Prosecutor Review- WHATCOM COUNTY Purchasing /Budget Dir: COUNCIL Executive- J UBYbc i Resolution to accept the conditions of the Thomas Nesset /Ingeborg Nesset Trust and the Nesset Conservation Easement for a future 104 acre park ATTACHMENTS. The resolution Public Hearing Needed? Yes / _,/Nom SUMMARY STATEMENT.• The Nessets have placed their real property on the South Fork of the Nooksack River and their assets into an Irrevocable Living Trust (Exhibit A of the Resolution). Whatcom County needs to accept the conditions of the Trust and Easement in order to obtain use of the property as a public park in the future. ORIGINATOR'S RECOMMENDED ACTION: Pass the resolution COMMITTEE ACTION (including dates): COUNCIL ACTION (including dates): Resolution approved 6 -0. Related File Numbers: Ordinance or Resolution Number.- RES91 -095 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SPONSORED BY: Consent PROPOSED BY: Executive INTRODUCTION DATE: 12 3/91 RESOLUTION NO.91 -095 A RESOLUTION TO ACCEPT THE CONDITIONS OF THE THOMAS NESSET /INGEBORG NESSET TRUST AND THE NESSET CONSERVATION EASEMENT FOR A FUTURE 104 ACRE COUNTY PARK WHEREAS, the County does not have park properties on the South Fork of the Nooksack River; and, WHEREAS, the 1989 Comprehensive Park and Recreation Open Space Plan identifies the South Fork river shoreline and adjacent uplands as a major resource to help meet the recreational opportunities; and, WHEREAS, the 1991 "Preserving A Way of Life ": A Natural Heritage Plan for Whatcom County recognizes the value of this land for future generations to enjoy; and, WHEREAS, Thomas Nesset and Ingeborg Nesset have placed their real property on the South Fork of the Nooksack R -fiver and their assets into an Irrevocable Living Trust, a copy of Which is attached hereto and marked as Exhibit "A "; and, WHEREAS, said Irrevocable Living Trust provides that, upon the death of both Thomas Nesset and Ingeborg Nesset, said_ property shall be transferred to the Whatcom County Park's Department upon the trustee's satisfaction that the Parks- Department can and Will use the property as a park in: accordance With a Conservation Easement executed by the' Nessets on July 31, 1989; and, WHEREAS, pursuant to Section 6 of said Conservation Easement, a copy of Which is attached and marked as Exhibit "B", said property can be used as a public park only if the County agrees to certain specific conditions; and, NOW, THEREFORE, BE IT RESOLVED that the Whatcom County Council does hereby agree to accept the conditions of the ,Nesset Irrevocable Living Trust and Conservation Easement in order to obtain use of the property as a public park. I— Resolution — 1. 1 2 3 4' 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPROVED this 10th day of December ATT T: 7 RAMONA REEVES Clerk of the Council APPROV D AS TO FORM: KAREN NELSON FRAKES Civil Deputy Prosecuting . Attorney — Resolution — 2, , 1991. WHATCOM COUNTY COUNCIL WHATCOM COUNTY, WASHINGTON c DANIEL M. WARNER,-Chairman •' f Exhibit "A" IRREVOCABLE LIVING TRUST OF THOMAS NESSET AND INGEBORG NESSET THIS AGREEMENT is made between THOMAS - NESSET and INGEBORG NESSET, brother and sister (the "Grantors "), and THOMAS NESSET and RUSSELL PFEIFFER -HOYT (individually '"Trustee," collectively '"Trustees "). 1. Transfer of Property. WITNESSETH: The Grantors have transferred and delivered to the Trustees the separate property of Grantors itemized on Schedule "A" attached hereto. This property, together with other property which may be added to this trust, shall be held, managed, and distributed by the Trustees as herein provided. 1.1 Statement of Intent. It is the Grantors' intent that their real property, along with their personal property pursuant to paragraph 4.4 of this trust, be used by the Trustees to establish a park. That park should, if possible, be owned and administered by a governmental entity. In any event, the park shall be operated in accordance with the Conservation Easement previously executed by the Grantors on July 31, 1989. 2. Additions to Trust. The Grantors or any other person may transfer, by Will or otherwise, additional property to this trust which is acceptable to the Trustees, to be held under this'-.-' Agreement, and may designate the trust , to which the property shall be added. 3. Distributions from the Trust Estate During the Life of a Grantor. 3.1 While either Grantor lives, the Trustees shall administer the trust estate, and shall make distributions to or for the benefit of Grantors or either of them, in such manner as in the discretion of Trustees shall provide for the health, welfare, maintenance and support of Grantors, or either of them. 3.2 Regardless of the powers granted in paragraph 3.1, Trustees shall have no discretion to make any distribution or use of trust property which would disqualify a Grantor from eligibility for medical assistance benefits provided by the State of Washington. WILL•NFSSSI7It Page 1 51 3.3 During the life of a Grantor, the Trustees may make distributions of the property of the trust which would .-accomplish the transfers allowed in Part 4 of this trust, provided that the Trustees have reasonable assurances that the remainder of the property subject to this trust, and such other provisions as may-be made for Grantors, are reasonably adequate, in' the discretion of the Trustees, to adequately provide for the health, welfare, maintenance and support of Grantors, or either of them, during the remainder of their lives.. 4. Distributions Upon the Death of Both Grantors. 4.1 Upon the death of a Grantor, the Trustees or Successor Trustees shall pay any liability which would, in the discretion of Trustee, become a legitimate claim against the estate of a Grantor. 4.2 Upon the death of both Grantors, the remaining Trustee shall transfer to Whatcom County Parks the trust real property upon his satisfaction that the County Parks can and will use the property as a .park in accordance with the Conservation Easement executed by the Grantors on July 31, 1989. If the remaining Trustee cannot so satisfy himself, the Trustee will, after a reasonable time, attempt to find another entity which will use the property as a public park or educational facility according to the terms of the Conservation Easement. If after a reasonable time no such entity can be found, the trust property shall be distributed to a conservation or a public interest organization which evidences its ability and commitment to fulfilling the terms of the Conservation Easement. Any such transfer may be without consideration. 4.3 Upon the death of both Grantors, the Trustee shall distribute trust personal property as follows: (a) All farming equipment, woodworking equipment, and any other... items of tangible personal property which in the Trustee's discretion may have value to a public entity for park or museum purposes shall be held by the Trustee and = distributed to any public entity to whom. the real property is distributed for park purposes. (b) Any items of tangible personal property which have, in the discretion of the Trustee, value primarily to relatives or friends of Grantors, shall be distributed by Trustee to such relative or relatives or friends as in the discretion of Trustee would most likely appreciate the value or. significance of such property. (c) Any cash or intangible trust property of value may, in Trustee's discretion, be used by Trustee to further the trust purpose of establishing or enhancing the property as a public park or museum. WILUNBSSErM Page 2 . 52 5. Powers and Duties of the Trustees. In addition to the duties, powers, and rights imposed and granted. by law, the Trustees of any trust created herein shall have the power, and the exercise of , discretion in the application thereof, to: 5.1 Determine the allocation of receipts and expenses between income and principal in accordance with the Washington Principal and Income Act; provided, there is reserved to the Trustees the power to make such equitable allocation as may nevertheless be contrary to the terms of said Act with respect to allocations relating to underproductive property; depreciation; and trade, business and farming operations. ; 5.2 Rely with acquittance on advice of counsel on questions of law. 5.3 Acquire and retain every kind of property, without regard to the income earned from such property, to accomplish the Grantors' purpose of preserv- ing the trust real property as that goal is expressed in the Nesset Conservation Easement, executed by Grantors on July 31, 1989. 5.4 � At any time to resign as Trustee of any and all trusts created by this instrument, without court proceedings, by delivering a written notice of resignation to Grantors or the survivor of them. 5.5 Make distributions in cash or in kind in shares which may be composed differently and to do so without regard to the income tax basis of specific property allocated to any beneficiary. 5.6 Exercise any necessary or desirable powers not otherwise granted in this instrument or given by law that the Trustees determine, in the Trustees' discre- tion, are consistent with the intentions of the Grantors. 5.7 - Trustees shall not have any obligation to render any accounting to Grantors or any other beneficiary as to the use of trust property, and shall not be liable for any act performed in the administration of this trust, provided that such act is performed in good faith and in the reasonable pursuance of the purpose of this trust. 6. Protection of Estates. 6.1 Each Grantor directs that the Trustees cooperate with their personal representative in the payment of expenses of last illness and funeral, estate settle- ment costs (including costs of ancillary administration), debts and death taxes, to the end that such expenses, costs, debts and taxes are suitably borne by both the trust estate and the probate estate or, if the values and assets so suggest, all from V11EIN SSCrtt Page 3 53 one estate and none from the other. The decisions of the fiduciary shall bind all beneficiaries. If the trust estate is to contribute to such costs, expenses, debts and taxes, the Trustees may pay such, or -the necessary balance thereof, from principal of the trust. 6.2 The Trustees may make such payment directly, or through the personal representative of the Grantor's estate, or otherwise as the Trustees deem advisable, without seeking reimbursement for any payments so made. The Trustees need not determine the accuracy of amounts certified to it by the personal representative, but may rely on such certification. Nor shall the Trustees have any duty to see to the application of such amounts paid to the personal representative. No compensatory adjustment shall be made for administration expense allowed as federal income rather than estate tax deduction. 6.3 If a Grantor has no probate estate, the Trustees are authorized to apply for or demand, and to receive, hold, administer and distribute as provided herein, any debt, claim, refund or rebate, premium, dividend, or other thing of value belonging to or accruing to the Grantor or the Grantor's estate. 7. Successor Trustee. 7.1 If a Trustee should not desire to serve as Trustee, and evidences that intention by resigning as Trustee by delivering a writing to the other Trustee, the other Trustee shall continue to serve as sole Trustee. 7.2 If a Trustee becomes medically incapable of performing the duties of Trustee, as evidenced either by a certificate of death or by a report of a physician giving an opinion that the Trustee is incapable of managing his. personal and financial affairs, delivered to the other Trustee, then the other Trustee shall continue to serve as sole Trustee. 7.3 If both Trustees either resign or become medically incapable of serving as Trustee, then Daryl Hoyt shall serve as Successor Trustee. In the event that he is unwilling or unable to serve as Successor Trustee, then Lucinda Pfeiffer -Hoyt shall serve as Successor Trustee. In the event that she is unwilling or unable to serve as Successor Trustee, then the Successor Trustee shall be that individual or corporate trustee appointed in writing by the last qualified acting Trustee. 8. Irrevocable. This trust is irrevocable and may not be amended or revoked after execution. IN WITNESS WHEREOF, THOMAS NESSET and INGEBORG NESSET, the Grantors, have signed this Agreement, and THOMAS NESSET and RUSSELL WILL•NE5SEr17R Page 4 54 PFEUTER -HOYT, to evidence their acceptance of the Trust, have caused their names to be signed. DATED this ,L day of 41A 1989. GRANTORS: THOMAS NESSET Social Security Number �r INGEBORG NESSET TRUSTEES: S THOMAS NESSET RUSSELL PFEIFFER -HOYT V,LL.NEWErM Social Security Number Social Security Number Social Security Number Page 5 55 t STATE OF WASHINGTON ) ss. COUN'T'Y OF WHATCOM ) On this day of , 1989, personally appeared before me THOMAS NESSET, to me known to be the individual described in and who executed the within and foregoing instrument, and acknowledged to me that he signed the same as his free and voluntary act and deed, for the uses and' purposes therein mentioned. WITNESS my hand and official seal hereto affixed the day and year first above written. Notary Public My commission expires: STATE OF WASHINGTON ) ss. COUNTY OF WHATCOM ) On this _ day of , 1989, personally appeared before me INGEBORG NESSET, to me known to be the individual described in and who executed the within and foregoing instrument, and acknowledged to me that she signed the same as her free and voluntary act and deed, for the uses and' purposes therein mentioned. WITNESS my hand and official seal hereto affixed the day and year first above written. Notary Public My commission expires: wuLr+�sserrn Page 6 56 e STATE OF WASHINGTON ) ss. -COUNTY OF WHATCOM ) On this day of 1989, personally appeared before me RUSSELL PFEIFFER -HOYT, to me known to 'be the individual described in and who executed the within and foregoing instrument, and acknowledged to me that he signed the same as his free and voluntary act and deed, for the uses and purposes therein mentioned. WITNESS my hand and official seal hereto affixed the day and year first above written. Notary Public My commission expires: VAUMESSEMM Page 7 57 NEi ss ' CONSE RVATION EASEMENT 1. GRANT OF CONSERVATION EASEMENT Exhibit "B" This Conservation Easement is made 3( 1989, between THOMAS NESSET and INGEBORG NLSSEV, brother and sister. (the "Grantors ") and the ''WHATCOM COUNTY LAND TRUST, a Washington nonprofit corpora- tion (the "Trust "). 11. FACTS AND OBJECTIVES Grantors are owners of real property in Whatconi County which is legally described by attached Exhibit A. The Trust is a publicly supported, nonprofit corporation, organized to preserve the ecological, wildlife, scenic, agricultural, recreational, and open space value of .land. It qualifies under Section 501(c)(3) of the Internal Revenue Code as a tax- exempt nonprofit' organization. The Nesset Property is a beautiful, secluded, 106 acres located on the upper reaches of the South Fork of the Nooksack River. The portion of the Property nearest the river is cleared and has historically been used as a farm. ' Beyond this is a ridge containing approximately 40 acres of mature coniferous forest. In addition to the river frontage, the Property contains a salmon spawning stream.. Deer, eagles and other wildlife frequent the Nesset Property, with eagles gathering._ in large numbers during the fall salmon spawn. The 'Nessets live in the original` - homestead residence which was constructed from large, dovetailed cedar timbers. The old barn and outbuildings contain numerous pieces of antique farming and.. logging equipment. Tom and Ingeborg Nesset have resided here since childhood, engaging 'in farming and selective logging, The Property is of substantial ecological, aesthetic and recreational value to the people of Whatcom County. It is the intent of the Grantors and the Trust, through this Conservation Easement, to preserve the natural scenic beauty of the Nesset Property, to . protect it as a relatively natural habitat for wildlife and plants, to conserve the significant aesthetic and ecological values and characteristics of the Property for public benefit, to protect the integrity of the land, and to preserve the possibility of the land being used in the future as a . public park. III. GRANT Or CONSERVATION EASEMENT Grantors hereby convey to the Trust, its successors and assigns, in perpetuity, a Conservation Easement pursuant to Revised Code of Washington 84.34.210 over the Property • described in Exhibit A ' attached hereto. The Conservation Easement .consists of mutual rights and obligations, and is subject to the reservation of rights set forth ' below. Rights, obligations and reservations operate as covenants running with the land in perpetuity. IV. PERMI`ITED USES, PRACTICES AND RIGHTS RESERVED BY GRANTORS Grantors reserve froin the grant of Conservation Easement the following rights: 1. To use the Property as the site for one (1) single family residence. .2. To continue historical modes and levels of farming, including pasturing, grazing, feeding and care of livestock and raising of fruits and vegetables on the land cleared at the time this Conservation Easement is signed. Farming will be conducted in a manner so as not to impair the water quality of the South Fork of 'the Nooksack River or of the salmon spawning stream on the Property, and in a manner consistent with sound agricultural and etiological principles. 3. To maintain and repair existing structures, fences and other improvements on the Property. In the event of destruction or deterioration, structures and other improvements existing at the time of this Conservation Easement may be replaced with structures and improvements of similar size, function, capacity and location. = 4. To construct additional structures and fences as needed to maintain agricul= tural operations on the Property, provided that building plans for any new structure sliall be approved by the Trust before construction begins. The Trust sliall Approve such new structures only if they are necessary for agricul- tural use, and if in design and appearance they are consistent with the environmental and historical character of the Property. 5. To engage in selective logging subject to the following limitations: (a) Deciduous trees may be cut for use as firewood on the Property, or with consent of the Trust for purposes of managing -the coniferous forest. IMMRSSFASM n ^ ^" 1 (b) Logging of coniferous species shall be severely limited and can only be carried out if done in strict adherence to a forest management plan submitted to and approved by the Trust. Such plan must demonstrate that the logging is carried out in an. ecologically sound manner, that it results in negligible destruction of habitat and the integrity of forest floor, that there will not be a significant deterioration of the value of the Property as an example of mature coniferous forest, and that the logging will not result in aesthetic and environmental damage. The plan should consider each forest and soil type and should set a policy for. dealing with diseased, dead and downed trees and for replanting. The goal of the plait is to develop a stand approximating as closely as possible an old growth forest. Discretion to reject any logging plan and to deny consent for any and all logging of conifers is completely within the discretion of the Trust. PROVIDED, that Tom and Ingeborg Nesset reserve the right to cut trees as may be necessary to provide for their care and welfare during their lifetime. G. To use the Property for purposes bf a public park should the Property be acquired by the Whatcom County Parks Department or any other public entity. Any. park plan or subsequent alterations of the park plan or park use must be consistent with the terms and intent of this Conservation Easement, and must be approved by the Trust. The terms of any park plan approved by the Trust will be treated as provisions of this Conservation Easement and may be enforced as such by the Trust. Park use must be consistent with the historical and ecological quality of the Property. Additional buildings, installations and facilities necessary for park use are permitted only with the prior approval of the Trust. Use of the Property as a park is permitted only on the following conditions: (a) The park will bear the Nesset name. (b) The primary themes of the park will be education and historical and ecological preservation. (c). Public 'access for the park will be from the north, and public vehicular traffic and parking will be prohibited south of the Nesset home, with a reasonable buffer left between the liomesite and any parking area. (d) To the extent feasible, the original home, barn, outbuildings and equipment will be restored to their original condition and used for educational and museum -like purposes. (e) To the extent feasible, the farin will have an educational function such as demonstrating traditional farining, pioneering, and perhaps selective logging skills. I J:NUSWM Page 3 (f) The eagles, fish, and other wildlife will be protected and the integrity of the land respected. (g) • Recreational use of the park will be controlled so. as to minimize the impact on surrounding 'property owners and the natural environment, including the South Fork of the Nooksack River. ' Recreational access to the River will be controlled to minimize litter (such as through a "no throw -away beverage container" policy), trespassing, damage to fisheries, and ecological degradation.. (h) A buffer zone of grazing land and /or native trees will be maintained along the southern border of the park. 7. In the event that the original homestead dwelling ceases to be used as a residence,- a new single family residence may be constructed, with the approval by the Trust of the location, design and building plans. V. RI;SDUCTIONS ON USE Except as provided above, and as may be necessary to 'carry out those rights reserved, the Grantors, their successors and assigns, shall not on the Property subject to this Conservation Easement do or permit the following activities: 1. Subdivide the Property in any manner. 2. Erect or permit placement of any building, structure or improvement. 3. Remove live trees or other native vegetation. 4. Excavate or grade the Property or otherwise materially alter the landscape or topography, except as is necessary to repair,. maintain or replace the rip rap on - the River: 5. Explore for or extract minerals, hydrocarbons, soil, or. other materials. 6. Hunt or trap. 7. Camp or make other overnight recreational use or use by motorized recreational vehicles. 8. Reside on the Premises or allow others to reside on the premises anywhere except in the one (1) permitted single family dwelling. Al:NMMSM PAPP. 4 9. Use the land for connnercial purposes, other than the off-site sale of agricul- tural products produced on the land. 10. Use herbicides or pesticides, except with the consent of the Trust. 11. Otherwise use the Property inconsistent , with the reservation of rights and purposes of the Conservation Easement. VI. RIGHTS AND RESPONSIBILITIES OF THE TRUST Grantors grant, and the Trust accepts, the right and responsibility to preserve and protect in perpetuity the aesthetic, habitat. and ecological values of the Nesset Property consistent with the terms of this Conservation Easement. In connection with such rights and responsibilities: 1. Grantors grant to the Trust the right to enter the Nesset Property on reasonable notice to observe and enforce compliance with the terms of . this Conservation Easement. Z. Should Grantors, their successors, or assigns, undertake any activity in viola- tion of this Conservation Easement, the Trust shall have the right to. compel the restoration of that portion of the Nesset Property affected by such activity to the condition that existed prior to the undertaking. of such unauthorized activity. In such case, the cost of restoration and the Trust's expenses and costs of suit, including attorneys' fees, shall be borne by Grantors or those of their successors or assigns against whom judgment is entered, or, in the event that the Trust secures• satisfaction without completed judicial proceeding, Grantors or those of its successors or assigns.:_ who are otherwise determined to be responsible for the unauthorized activity. 3. Any forbearance by the Trust to exercise any rights under this Conservation' Easement in the event of a breach shall not be deemed to be w waiver of the Trust's lights under this Conservation Easement. VII. BASELINE DATA The Trust acknowledges by acceptance of this Conservation Easement that Grantors' historical and present uses of the Property are compatible with the purposes of this Conservation Easement. In order to establish the present condition of the . Property's scenic and ecological resources so as to be able to properly monitor future uses of the Property and assure compliance with the terms of this Conserva- tion Easement, the Trust shall, at its earliest possible. convenience, prepare or cause to be prepared an inventory of the Property's relevant features and conditions, P hWP[QP. a14 "- .. - r known as Baseline Data. The Baseline Data shall be used to establish the condition of the Property as of the date of this Easement. In the event of a controversy arising with respect to the nature and extent of the Grantors' historical and present use of the Property, the .Baseline Data shall be determinative. Exhibit B is a detailed site plan of the Nesset Property and constitutes _part of tine Baseline Data. VIII. GRANTORS' RESPONSIBILITIES Grantors agree to bear all costs of operation, upkeep and maintenance of the Property and to indemnify the Trust therefrom; in addition, Grantors agree to pay all real property taxes and assessments levied on the Property. IX. ASSIGNMENT Or. TRUS'I"S INTERESTS The Trust may assign its interest in this Conservation Easement to a "qualified" organization within the meaning of Section 170(h) of the Internal Revenue Code of 1954, as amended, so long as that organization has a concern for ecological and aesthetic considerations 'consistent with tine terms of this Conservation Easement. Should the Trust cease to exist, this Conservation Easement would be assigned to such an organization. . X. GRANT IN PERPETUITY This Conservation Easement shall run with the Property in perpetuity and shall bind... the Grantors, their successors and assigns forever. XI. MISCELLANEOUS 1. Wherever used in this Conservation Easement, the term "Grantors" shall include the above -named Grantors and their heirs, personal representatives, executors, successors and assigns, and the term "the Trust" shall include the Whatcom County Land Trust and its successors and assigns. 2. In the event that any of the provisions contained in this Conservation Easement are declared invalid or unenforceable in the future, all other provisions remain in effect. 3. Grantors shall notify the Trust of the sale of the Property. R1:NESSFASM Pape 6 4. Grantors shall advise the Trust in writing thirty (30) days prior to filing an application for any governmental permits necessary for work or construction on the Property. S. Grantors agree that reference to this Conservation Easement will be made in any subsequent deed or other legal instrument transferring any interest in the Property, and that they will attach a copy of this Conservation Easement. IN WITNESS WHEREOF, Grantors have executed this Conservation Easement, this '61 day' of 91989. GRANTORS: THOMAS NESSET INGE G NESSET STATE OF WASHINGTON ) ss. COUNTY OF WHA.TCOM ) WHATCOM COUNTY LAND TRUST: By: , Its: Urk.c� - On this day ,31 day of, , 1989, before me, the under- signed, a Notary Public in andfbr thejState of Washington, duly commissioned 'and sworn, personally appeared THOMAS NESSET and INGEBORG ' NESSET, to me known to be the individuals described in the foregoing Grant of Conservation Easement, and acknowledged that they signed said instrument as their free and voluntary act and deed, for the uses and purposes therein mentioned. R1:NFMEMM NnP 7 WITNESS my hand and official seal hereto affixed the day and year first above written. NOTARY PUBLIg My commission expires: qllolql \SgWN F,fA,!� it i•� PIJ .\G),�,� ` 'tP • G -t. •....• PI•NPCCP•CII