HomeMy WebLinkAboutHairpin Ranch_Purchase and Sale Agreement_FINAL_1.16.20PURCHASE AND SALE AGREEMENT
(Hairpin Ranch Conservation Easement)
This PURCHASE AND SALE AGREEMENT ("Agreement") is entered into by and
among KITTITAS COUNTY, a political subdivision of the State of Washington ("County"),
having an address of 205 West 5"' Avenue, Ellensburg, WA 98926, and FORTERRA NW, a
Washington nonprofit corporation, its successors or assigns ("Forterra") having an address of 901
50' Ave, Suite 2200, Seattle, WA 98164 (collectively, "Buyer"), and Brent Minor and Mary Minor,
a married couple (collectively, "Seller"), having an address of 8001 Naneum Road, Ellensburg,
WA 98926, as of the first date on which the County, Forterra and Seller have all signed this
Agreement ("Effective Date"). Buyer and Seller may be referred to herein individually as "Party"
and collectively as the "Parties."
RECITALS
A. Seller owns certain real property commonly known as "Hairpin Ranch," also
formerly known as "Rader Road Ranch," located along Naneum Creek, in Kittitas County,
Washington, as more particularly described in this Agreement.
B. Buyer desires to purchase a conservation easement on said real property owned by
Seller, as hereinafter defined, for the purpose of protecting the agricultural conservation values of
the property, on the terms and conditions set forth in this Agreement.
C. County has adopted Comprehensive Plan GPO 2.1 with the goal to maintain and
enhance County's natural resource industry base, including but not limited to productive
agriculture resources. County is exempt from taxation.
D. Forterra is a conservation organization having among its purposes the acquisition
of open space and critically important ecological systems in King, Snohomish, Pierce, Kittitas and
Mason counties and surrounding communities. Forterra is exempt from taxation under Section
501(c)(3) of the Internal Revenue Code of 1986 (as amended from time to time, the "Code") and
is included in the "Cumulative List of Organizations" described in Section 170(c) of the Internal
Revenue Code published by the Internal Revenue Service. Forterra is not a private foundation
within the meaning of Section 509(a) of the Code.
E. County and Forterra will steward the conservation easement on said real property
according to the terms and conditions of the Conservation Easement and Funding Sources, as
defined below.
F. Seller acknowledges that upon granting the conservation easement, as defined
below, to Buyer, Buyer shall be free to transfer any such easement interest, for any price Buyer
deems appropriate, to any subsequent buyer qualified under state and federal law as a holder of
conservation easements, subject to the terms, conditions, and stewardship obligations set forth in
the Conservation Easement.
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G. Seller desires to sell to Buyer, and Buyer desires to purchase from Seller, the
Conservation Easement, as defined below, on the terms and conditions set forth in this Agreement.
AGREEMENT
Intending to be legally bound, for good and valuable consideration, including the mutual
covenants and promises of the Parties, the adequacy and receipt of which is hereby acknowledged,
the Parties agree as follows:
1. Property. The property subject to the conservation easement in this Agreement is
that certain real property consisting of approximately 274 acres, more or less, comprised of 37 tax
assessed parcels, having a street address of 8001 Naneum Road, located along Naneum Creek, in
Ellensburg, Kittitas County, Washington and more particularly described in Exhibit A attached
and incorporated by reference (the "Property").
2. Purchase. Seller shall sell and convey to Buyer, and Buyer shall purchase from
Seller, a conservation easement on the Property, on the terms and conditions set forth in this
Agreement, in substantially the form attached as Exhibit B and incorporated by reference (the
"Conservation Easement"). Prior to Closing, Buyer and Seller may make changes to the
Conservation Easement as they mutually deem appropriate, subject to approval of the Funding
Sources, as defined below.
3. Purchase Price. The purchase price for the Conservation Easement shall be One
Million Six Hundred Eighty -Nine Thousand and No/100 Dollars ($1,689,000.00) ("Purchase
Price"), payable by Buyer to Seller at Closing. Buyer intends to purchase the Conservation
Easement using funds from State Grant Award 16-1634A, administered through the Washington
State Recreation and Conservation Office ("RCO") and Federal Grant Award
#N5319ALE00100132, administered through the United States Department of Agriculture Natural
Resources Conservation Service ("NRCS") (collectively, "Funding Sources"). Seller
acknowledges and agrees that the Funding Sources, as a condition to providing grant funds, shall
have an enforceable interest in the Conservation Easement upon Closing.
4. Title.
4.1. Condition of Title. Title shall be insurable by a 2006 ALTA Owner's
Standard Coverage Policy in the amount of the Purchase Price, subject only to the Permitted
Exceptions, as defined below. Seller shall satisfy all requirements of the Title Company in
connection with issuance of its title policy (the "Title Policy") in accordance with the
Commitment.
4.2. Title Insurance Commitment. Buyer has obtained a title insurance
commitment issued by AmeriTitle as agent for Chicago Title Insurance Company (the "Title
Company" or "Escrow Holder"), File Number 265429AM, dated October 16, 2018, and including
any updates, showing marketable title to the Property to be vested in Seller and committing to
insure such title in Buyer by the issuance of a 2006 ALTA Owner's Standard Coverage Policy of
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title insurance in the amount of the Purchase Price and including any policy endorsements required
by Buyer (the "Title Commitment").
4.3. Review of Title. Buyer shall have until the end of the Contingency Period,
as defined below, to notify Seller in writing of any objection Buyer in its sole discretion may have
to any exceptions shown on the Title Commitment. General taxes due after Closing and those
exceptions disclosed in the Title Commitment that Buyer does not disapprove shall constitute
permitted exceptions ("Permitted Exceptions"). Seller, at its sole cost and expense, shall remove
all exceptions other than Permitted Exceptions. Seller shall immediately notify Buyer of any liens,
leases, encumbrances, easements, restrictions, conditions, covenants, rights-of-way and other
matters affecting title to the Property that are created and which may appear of record or be
revealed by survey or otherwise after the date of the Commitment but before the Closing
(collectively, "Intervening Exceptions"). Intervening Exceptions shall be subject to Buyer's
approval and Buyer shall have ten (10) Business Days after notice in writing of any Intervening
Exception, together with a description thereof and a copy of the instrument creating or evidencing
the Intervening Exception, if any, to either accept it (whereupon the Intervening Exception shall
be a Permitted Exception) or submit written objection. Seller will promptly remove all Intervening
Exceptions that do not become Permitted Exceptions.
5. Conditions Precedent.
5.1. Conditions to Purchase. Buyer's obligations with respect to purchase of the
Conservation Easement and the Closing are subject to fulfillment by the Closing Date, or earlier
waiver by Buyer, of the conditions precedent described below ("Conditions Precedent").
(a) Title Policy. All requirements set forth in the Title Commitment
shall have been satisfied or waived by the Title Company and the Title Company shall be prepared
to issue the Title Policy.
(b) Moratorium. No reassessment, reclassification, rezoning or other
change in judicial or administrative decision or proceedings (including amendments and
modifications of any of the foregoing) pending or proposed to be imposed by any governmental
or quasi -governmental authority or any public or private utility having jurisdiction over the
Property shall have occurred.
(c) Zoning; Survey_. There are no existing violations of zoning
ordinances or other laws, ordinances or restrictions applicable to the Property; there are no
encroachments upon the Property; and there are no other matters of survey that, in Buyer's sole
discretion after examination of a survey of the Property, would affect the placement of or purpose
of the Conservation Easement.
(d) No Notices. Seller has not received actual notice from any
governmental authority that existing uses of the Property are not in full compliance with all
applicable zoning laws (and applicable variances) and any other local, municipal, regional, state
or federal requirements or that the improvements on the Property do not comply with all applicable
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building, safety, health, zoning, environmental, subdivision and other laws, ordinances and
regulations.
(e) No Actions or Proceedings. There is no action, proceeding or
investigation whether in the nature of eminent domain or otherwise, pending or threatened, with
respect to the title, ownership, maintenance, use or operation of the Property.
(f) No Environmental Violations. The Property is not in violation of
any federal, state or local law, ordinance or regulation relating to industrial hygiene or to the
environmental conditions on, under, above or about the Property, including but not limited to soil
and groundwater conditions.
(g) Representations, Warranties and Covenants of Seller. Seller shall
have performed each and every agreement to be performed by Seller under this Agreement, and
Seller's representations and warranties in this Agreement shall be true and correct as of the
Closing.
(h) No Adverse Changes. Between the Effective Date and the Closing,
there shall have been no adverse change in the physical condition of the Property that would
frustrate the placement of or purpose of the Conservation Easement from the standpoint of Buyer
or either of the Funding Sources.
(i) Seller's Deliveries. Seller shall have delivered each of the items
described in this Agreement to Buyer and/or Escrow Holder.
0) Investigation. Buyer shall have notified Seller that the Buyer's
condition with respect to investigation of the Property has been satisfied or waived within the
Contingency Period.
(k) Appraisal. Buyer shall have obtained, at no cost to Seller, an
appraisal of the Conservation Easement in form, amount and substance satisfactory to Buyer in its
sole and absolute discretion.
(1) Funding. Buyer shall have secured funding for the Conservation
Easement in an amount sufficient to pay the Purchase Price in full at Closing and otherwise on
terms and conditions acceptable to Buyer in Buyer's sole and absolute discretion.
(m) No Seller Bankruptcy. If at any time prior to Closing, (i) there shall
be filed against or by Seller a petition in bankruptcy or insolvency or a petition seeking to effect
any plan or other arrangement with creditors or seeking the appointment of a receiver and the same
is not discharged or dismissed before Closing; (ii) a receiver or liquidator is appointed for all or
substantially all of Seller's property; or (iii) Seller makes an assignment for the benefit of creditors
or takes any other similar action for the benefit or protection of creditors, then Buyer shall have
the right in its sole and absolute discretion and in addition to all other remedies available to Buyer
pursuant to this Agreement or at law or in equity to cancel and terminate this Agreement and
neither Party shall have any further rights or obligations under this Agreement.
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(n) Buyer's Approval. Buyer shall have obtained such formal
authorization (which may include the approval of its board of directors or commissioners) to
consummate the purchase and sale contemplated by this Agreement as may be necessary.
5.2. Benefit of Buyer. The Conditions Precedent are solely for the benefit of
Buyer and may be waived only in writing by Buyer. Buyer shall at all times have the right to
waive any condition. The waiver by Buyer of any condition in any specific circumstances shall
not be a waiver of such condition with respect to any other circumstances or a waiver of any other
condition and shall not relieve Seller of any liability or obligation with respect to any
representation, warranty, covenant or agreement of Seller, unless the waiver expressly so provides.
5.3. Termination. If any Condition Precedent is not timely fulfilled and is not
waived by Buyer, Buyer may terminate this Agreement by written notice to Seller and Escrow
Holder shall, if Buyer so instructs, return to the Parties all funds and documents deposited by them,
respectively, into escrow.
6. Investigation of the Property.
6.1. Seller's Initial Deliveries. Within ten (10) Business Days following the
Effective Date, Seller shall, at Seller's sole expense, deliver to Buyer copies of any documents and
records in Seller's possession or control, or in the possession or control of Seller's property
manager, relating directly or indirectly to the Conservation Easement or the conservation values
of the Property, including without limitation all permits, studies, surveys and maps of the Property.
6.2. Entrv. Without limiting any other rights of Buyer under this Agreement, as
of the Effective Date, Seller understands and agrees that Buyer and/or the Funding Sources, and
their respective agents and employees, shall have the right to enter upon the Property with Seller's
advance permission in order to evaluate the Property for placement of the Conservation Easement,
including without limitation for the non-invasive environmental assessment detailed below in
Section 6.3. Seller agrees to cooperate with any such evaluation and assessment. Nothing in this
Agreement authorizes Buyer or the Funding Sources or any other entity to conduct soils,
engineering, or any other physical sampling or invasive tests at the Property, and Seller does not
grant access for any such purposes. The exercise by Buyer of any of the preceding rights or any
other act of Buyer shall not negate any representation, warranty or covenant of Seller, or modify
any of Buyer's rights or Seller's obligations in the event of any breach by Seller of any of its
representations, warranties or covenants under this Agreement. Buyer shall indemnify and hold
Seller harmless from any and all damages, expense, liens or claims (including attorneys' fees)
arising from Buyer's negligence in exercise of its entry rights hereunder or failure to pay third
parties; and the provisions of this indemnity shall survive termination of this Agreement.
6.3. Environmental Assessment. Buyer and any Funding Source may obtain
such non-invasive environmental assessments of the Property as Buyer and any funding source
deem appropriate to evaluate the Property for placement of the Conservation Easement.
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6.4. Period for Investigation. Closing of this transaction is conditioned on
Buyer's satisfaction with the suitability of the Property for the placement and purpose of the
Conservation Easement and the feasibility of this transaction in Buyer's sole and absolute
discretion. Buyer shall have thirty (30) Business Days from the Effective Date to conduct its
investigation (the "Contingency Period"). If Buyer fails to notify Seller in writing that this
condition is satisfied or waived prior to 5:00 p.m. Pacific Time on the final day of the Contingency
Period, then this Agreement shall be deemed terminated, and both Seller and Buyer shall be
released and discharged from all further obligations under this Agreement.
7. Seller's Obligations. Before the Closing Seller shall, at its sole expense:
7.1. Promptly notify Buyer upon learning of any fact or event that would make
any of the representations or warranties of Seller contained in this Agreement (including, without
limitation, Buyer's Conditions Precedent and Seller's representations and warranties) untrue or
misleading in any material respect or that would cause Seller to be in violation of any of its
covenants or other obligations hereunder.
7.2. Notify Buyer promptly upon receiving notice of a claim or pending
litigation affecting the Property, or notice of any event, transaction, or occurrence before Closing
that would materially adversely affect the Property or any part thereof.
7.3. Not convey, mortgage, grant a deed of trust, or contract to do the foregoing
or otherwise allow or consent to convey, abandon, relinquish, cloud or encumber title to the
Property or any interest therein or part thereof without Buyer's prior written consent.
7.4. Maintain the Property in good order, condition and repair, and otherwise
operate the Property and maintain its business records in the same manner as before the making of
this Agreement, as Seller will continue to do as fee owner of the Property following sale of the
Conservation Easement to Buyer.
7.5. Maintain all casualty, liability and hazard insurance currently in force with
respect to the Property without diminution in coverage.
7.6. Remedy any violations of law or municipal ordinances or regulations of any
federal, state, local or other governmental departments.
7.7. Take no action that will adversely affect title to the Property.
8. Deliveries to Escrow Holder.
8.1. By Seller. Seller shall deliver or cause to be delivered to Escrow Holder on
or prior to the Closing Date the following items, the delivery of each of which shall be a condition
to the performance by Buyer of its obligations under this Agreement:
(a) Deed of Conservation Easement. A deed of conservation easement,
in form and substance satisfactory to Buyer and its counsel, duly executed and acknowledged by
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Seller (the "Deed"), conveying to Buyer or its designee the Conservation Easement, free and clear
of all liens, encumbrances, restrictions and easements, except only the Permitted Exceptions.
(b) FIRPTA Affidavit. A certificate in form and substance acceptable
to Buyer and its counsel, duly executed by Seller, evidencing that Seller is exempt from the
withholding requirements of Section 1445 of the Internal Revenue Code.
(c) ALTA Affidavits. Any affidavits, certifications or instruments,
including any lien affidavits or mechanic's lien indemnifications, duly executed and acknowledged
by Seller, as reasonably may be required by the Title Company in order to issue the Title Policy.
(d) Title Insurance Policy. The Title Policy in conformance with this
Agreement.
(e) Closing Certificates. A certificate of Seller dated as of the Closing
Date certifying that all of Seller's representations and warranties remain true as of the Closing
Date, or if not, specifying the respect in which any representation or warranty is no longer true.
(f) Certificates of Authority. Such certificates as are necessary or
required by Buyer or the Title Company to evidence the authority of Seller and its signatories to
execute the instruments to be executed by Seller in connection with this transaction, and evidence
that the execution of such instruments is the official act and deed of Seller.
(g) Excise Tax Affidavit. A real estate excise tax affidavit signed by
Seller or its agent.
8.2. Buyer. Buyer shall deliver or cause to be delivered to Escrow Holder on or
before the Closing Date:
(a) Closing, Funds. Cash by federal funds, wire transfer or cashier's
check in the amount necessary to pay the Purchase Price and Buyer's share of closing costs and
prorations.
Buyer or its agent.
(b) Excise Tax Affidavit. A real estate excise tax affidavit signed by
(c) Deed of Conservation Easement. Acceptance of the Deed.
9. Close of Escrow.
9.1. Time. The close of escrow (the "Closing") shall occur not later than thirty
(30) Business Days following expiration, or Buyer's earlier waiver, of the Contingency Period (the
"Closing Date"), at the offices of Escrow Holder, unless extended in writing by mutual agreement
of Seller and Buyer. When the Title Company is in a position to issue the Title Policy and all
documents and funds have been deposited with Escrow Holder, Escrow Holder shall immediately
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close escrow as provided for below. The failure of either Seller or Buyer to be in position to close
by the Closing Date shall constitute a default by such Party.
9.2. Procedure. Escrow Holder shall close escrow as follows:
(a) Obtain the release of the Property from any liens described in the
Commitment, or at minimum obtain subordination agreements from any lien -holders described in
the Commitment so that such liens are contractually subordinated to the Conservation Easement,
except for the Permitted Exceptions;
(b) Pay applicable real estate transfer excise taxes record the Deed, and
complete the prorations;
(c) Issue and deliver the Title Policy to Buyer;
(d) Deliver to Buyer any other documents deposited by Seller into
escrow that are intended for Buyer;
(e) Deliver to Seller the Purchase Price less Seller's closing costs and
prorations; and
(f) Forward to Buyer and Seller, in duplicate, a separate accounting of
all funds received and disbursed for each Party and copies of all executed and recorded or filed
documents deposited into escrow, with such recording and filing date endorsed thereon.
9.3. Incorporation of Escrow Instructions. This Agreement shall serve as
escrow instructions, and an executed copy of this Agreement shall be deposited by Buyer with
Escrow Holder following its execution. The parties may execute additional escrow instructions
provided that such additional escrow instructions shall not change the terms of this Agreement.
9.4. Closing Costs and Property Expenses.
(a) Closing Costs. Buyer and Seller shall each pay their own attorneys'
fees. Buyer shall pay the cost of recording the Deed, escrow fees, real estate transfer excise taxes,
compensatory tax (if applicable), and the title insurance premium charged by the Title Company
for a standard owner's policy. If required by Buyer, Buyer shall pay the additional premium
charged by the Title Company for extended coverage, any endorsements and the cost of the survey.
(b) Property Expenses. There shall be no change in responsibility for
expenses related to the Property as a result of Buyer's acquisition of the Conservation Easement.
At all time before and after Closing, Seller shall continue to be responsible for timely payment of
all expenses of the Property, including but not limited to, real property taxes, rents, utility charges,
amounts payable under contracts, annual permits, and other expenses normal to ownership, use,
operation and maintenance of the Property. Any special assessments against the Property shall also
continue to be the responsibility of Seller.
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9.5. Possession. Possession of the Property shall remain in Seller upon Closing,
subject to the Conservation Easement.
10. BrokeraL a Commission. Seller warrants to Buyer and Buyer warrants to Seller that
each Party's sole contact with the other and with the Property regarding this transaction has been
directly with the other Party and has not involved any broker or finder. Seller and Buyer further
warrant to each other that no broker or finder can properly claim a right to a commission or finder's
fee based upon contacts between the claimant and that Party with respect to the other Party or the
Conservation Easement. Each Party shall indemnify, defend and hold the other Party harmless
from and against any loss, cost or expense, including, but not limited to, attorneys' fees and court
costs, resulting from any claim for a fee or commission by any broker or finder in connection with
the Conservation Easement and this Agreement resulting from the indemnifying Party's actions.
The obligations of the Parties under this Section shall survive the termination of this Agreement.
11. Casualty or Condemnation.
11.1. If there is a condemnation of all or part of the Property initiated before
Closing, Seller shall promptly notify Buyer and Buyer shall have the option for ten (10) Business
Days following the date the notice is received either to, by notice to Seller: (a) proceed with the
Closing, in which event a percentage of all condemnation proceeds — with such percentage
equivalent to the appraised value of the Property burdened by the Conservation Easement (the
"after" value) divided by the value of the unencumbered Property (the "before" value) — already
received by Seller by the Closing shall be paid to Buyer and the right to receive the same
percentage of such proceeds not yet received by Seller shall be assigned to Buyer at the Closing,
or (b) terminate this Agreement. Unless this Agreement is terminated, Seller shall take no action
with respect to any condemnation proceeding without the prior written consent of Buyer.
11.2. The entire risk of loss or damage by casualty to the Property however caused
shall be borne and assumed by Seller. Buyer's acquisition of the Conservation Easement has no
impact on Seller's continuing responsibility for such loss or damage. If any casualty materially
impacting the purpose of the Conservation Easement (i.e., costing 10% or more of the Purchase
Price to repair) occurs to the Property before Closing, Buyer at its election may: (a) terminate this
Agreement; or (b) proceed to close in which case the Parties shall determine whether an adjustment
in Purchase Price and/or terms of the Conservation Easement are appropriate, with any such
adjustment(s) subject to approval of the Funding Sources.
12. Representations. Warranties and Covenants.
12.1. Seller's Representations. Warranties and Covenants. In addition to the
representations, warranties and covenants contained elsewhere in this Agreement, Seller as of the
Effective Date and as of the Closing Date makes the following representations, warranties and
covenants:
(a) Title. Seller is the sole owner of the Property. At Closing, Buyer
will acquire right, title and interest in and to the Conservation Easement, free and clear of all
recorded or unrecorded liens, encumbrances, covenants, restrictions, reservations, easements,
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options, tenancies, leases, encroachments, claims or other matters affecting title or possession of
the Property, subject only to the Permitted Exceptions. Seller will retain fee simple ownership of
the Property, subject to the Conservation Easement.
(b) Agreements to Transfer or Encumber. Seller has not committed nor
obligated itself in any manner whatsoever to sell, lease or encumber the Property or any interest
therein to any party other than Buyer.
(c) Compliance with Law. To the best of Seller's knowledge, the
Property complies in all material respects (both as to condition and use) with all applicable statutes,
ordinances, codes, rules and regulations of any governmental authority having jurisdiction over
the Property (including those related to zoning, building, subdivision, and engineering), including
all conditions contained in any certificate of occupancy covering any of the Property. Seller has
obtained all required permits or authorizations for such occupancy. Seller has no knowledge of
any facts that might give rise to any violation of the foregoing matters.
(d) BankruptcX. No bankruptcy, insolvency, rearrangement or similar
action involving Seller or the Property, whether voluntary or involuntary, is pending, threatened,
by a third party, or contemplated by Seller.
(e) Litigation. There is no pending, or to the best of Seller's knowledge,
threatened judicial, municipal or administrative proceedings with respect to Seller, this transaction,
or in any manner affecting the Property or any portion thereof or in which Seller is or will be a
party by reason of Seller's ownership of the Property or any portion thereof.
(f) Notices. Seller has not received any notices from any insurance
companies, governmental agencies or from any other parties with respect to any violations or other
matters concerning the Property.
(g) Taxes and Assessments. Other than amounts disclosed by the
Commitment, to the best of Seller's knowledge, no other property taxes have been or will be
assessed against the Property for the current tax year, and there are no general or special
assessments or charges that have been levied, assessed or imposed on or against the Property.
(h) Tax Returns. Seller has filed all local, state and federal tax forms
that are required to be filed by Seller, has paid all taxes due and payable by Seller to date and will
pay all such taxes that become due and payable by Seller prior to the Closing.
(i) Underground Storage Tanks. To the best of Seller's knowledge,
there are no cisterns, wells, subterranean storage or underground storage tanks on the Property and
underground storage tanks have not been removed from the Property.
0) Violation of Property Restrictions. To the best of Seller's
knowledge, the Property and the current use, occupation and condition thereof do not violate any
applicable deed restrictions or other covenants, restrictions or agreements (including, without
limitation, any of the Permitted Exceptions), site plan approvals, zoning or development plans
applicable to the Property.
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(k) Subdivision. To the best of Seller's knowledge, the conveyance of
the Conservation Easement will not constitute a violation of any subdivision ordinance.
(1) Tax Valuation/Assessment. Seller has no knowledge and has
received no notice of any proceedings pending for the correction of the assessed valuation of the
Property or any other pending or threatened special assessments affecting the Property.
(m) Authority. Seller has all requisite power and authority to execute
and deliver this Agreement and to carry out Seller's obligations herein and the transactions
contemplated hereby. This Agreement has been, and the documents contemplated hereby will be,
duly executed and delivered by Seller and constitute the Seller's legal, valid and binding obligation
enforceable against Seller. The sale of the Conservation Easement is not in violation of or in
conflict with, nor does it constitute a default under, any term or provision of any agreement or
instrument to which Seller is or may be bound, or of any provision of any applicable law,
ordinance, rule or regulation of any governmental authority or of any provision of any applicable
order, judgment or decree of any court, arbitrator or governmental authority.
(n) No Omissions. All representations and warranties made by Seller
in this Agreement, and all information contained in any certificate furnished by Seller to Buyer in
connection with this transaction, are free from any untrue statement of material fact and do not
omit any material facts necessary to make the statements contained herein or therein not
misleading. The copies of any documents furnished to Buyer in connection with this transaction
are true and complete copies of the documents they purport to be and to the best of Seller's
knowledge contain no untrue statement of material fact and do not omit to state any material facts
necessary to make the statements contained therein not misleading.
(p) Mechanic's Liens. No labor, material or services have been
furnished in, on or about the Property or any part thereof as a result of which any mechanics',
laborer's or materialmen's liens or claims might arise.
(q) No Assumption of Liabilities. Seller acknowledges that Buyer, by
virtue of the purchase of the Conservation Easement, will not be required to satisfy any obligation
of Seller, whether arising before or after the Closing Date. Seller will pay and discharge any and
all liabilities of each and every kind arising out of or by virtue of the possession, ownership or use
of the Property, whether before or after the Closing Date, and shall indemnify, defend and hold
Buyer harmless therefrom.
(r) Provide Further Information. From the Effective Date through the
Closing Date, Seller will notify Buyer of each event of which Seller becomes aware affecting the
Property or any part thereof immediately upon learning of the occurrence of such event.
12.2. Effect of Buyer's Inspections. The effect of the representations and
warranties made by Seller in this Agreement shall not be diminished or deemed to be waived by
any inspections or investigations made by Buyer or its agents.
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12.3 Buyer's Representation. Forterra is a Washington nonprofit corporation
duly organized, validly existing and in good standing in the State of Washington. County is a
political subdivision of the State of Washington. Each Buyer, for itself, represents that it has all
requisite power and authority to execute and deliver this Agreement and to carry out its obligations
and the transactions contemplated by this Agreement. This Agreement has been, and the
documents contemplated by this Agreement will be, duly executed and delivered by Buyer and
constitute Buyer's legal, valid and binding obligation enforceable against Buyer. The purchase of
the Conservation Easement is not in violation of or in conflict with, nor does it constitute a default
under, any term or provision of Buyer's governing documents, or any of the terms of any
agreement or instrument to which Buyer is or may be bound, or of any provision of any applicable
law, ordinance, rule or regulation of any governmental authority or of any provision of any
applicable order, judgment or decree of any court, arbitrator or governmental authority.
13. Environmental Compliance. In addition to and without limiting any other provision
of this Agreement, Seller warrants, represents, covenants and agrees:
(a) To the best of Seller's knowledge, Seller and the Property are in
compliance with all federal, state, and local laws, regulations, and requirements applicable to the
Property and its use;
(b) To the best of Seller's knowledge, there has been no release,
dumping, burying, abandonment or migration from off-site on the Property of any substances,
materials, or wastes that are or are designated as, hazardous, toxic, dangerous, or harmful or
contain components that are, or are designated as, hazardous, toxic, dangerous, or harmful and/or
that are subject to regulation as hazardous, toxic, dangerous, or harmful by any federal, state or
local law, regulation, statute, or ordinance;
(c) Neither Seller nor, to the best of Seller's knowledge, Seller's
immediate predecessor as owner of the Property, has disposed of any Hazardous Substances off-
site, nor have they disposed of substances at sites designated or proposed to be designated as
federal Superfund (42 U.S.C. §9601 et seq.) or state Model Toxics Control Act (RCW
70.105D.010 et seq.) ("MTCA") sites; and
(d) To the best of Seller's knowledge, there is no pending or threatened
litigation affecting the Property or any portion of the Property that will materially impair the
conservation values of any portion of the Property. To the best of Seller's knowledge, no civil or
criminal proceedings have been instigated or are pending against Seller or its predecessors by
government agencies or third parties arising out of alleged violations of environmental laws, and
neither Seller nor its predecessors in interest have received any notices of violation, penalties,
claims, demand letters, or other notifications relating to a breach of environmental laws.
(e) Seller will hold harmless and indemnify the Buyer against all
litigation, claims, demands, penalties, and damages, including reasonable attorneys' fees, arising
from or connected with the release or threatened release of any Hazardous Substances or
Hazardous Materials on, at, beneath, or from the Property, or arising from or connected with a
violation of any Environmental Laws by Seller or any other prior owner of the Property. Seller's
Page 12 of 20
indemnification obligation will not be affected by any authorizations provided by the Buyer to the
Seller with respect to the Property or any restoration activities carried out by Buyer at the Property;
provided, however, that the Buyer is responsible for any Hazardous Substances or Hazardous
Materials contributed after this date to the Property by the Buyer.
(f) Pre -Closing Covenant. Seller will not use, generate, manufacture,
produce, store, release, discharge or dispose of on, under, above or about the Property (or off-site
of the Property that might affect the Property), or transport to or from the Property, any Hazardous
Substance or authorize any other person or entity to do so, prior to the Closing, other than such
substances as are currently and typically used for agricultural activities on the Property, including
pesticide and herbicide, provided that any such use, storage, disposal, etc. complies with all local,
state and federal laws and regulations.
The terms `Environmental Law" and "Environmental Laws" mean any and
all Federal, State, local, or municipal laws, rules, orders, regulations, statues, ordinances, codes,
guidelines, policies, or requirements of any governmental authority regulating or imposing
standards of liability or standards of conduct (including common law) concerning air, water, solid
waste, hazardous materials, worker and community right -to -know, hazard communication, noise,
radioactive materials, resource protection, subdivision, inland wetlands and watercourses, health
protection and similar environmental health, safety, and building and land use as may now or at
any time hereafter be in effect.
The term "Hazardous Substance" shall mean any substances, materials, or
wastes that are hazardous, toxic, dangerous, or harmful or are designated as, or contain components
that are, or are designated as, hazardous, toxic, dangerous, or harmful and/or which are subject to
regulation as hazardous, toxic, dangerous, or harmful or as a pollutant by any federal, state, or
local law, regulation, statute, or ordinance, including, but not limited to, petroleum or any
petroleum product. The term "Hazardous Substances" shall not include biosolids, herbicides,
pesticides, rodenticides, insecticides, and fertilizers applied in accordance with federal, state, and
local law.
The term "Hazardous Materials" means any petroleum, petroleum products,
fuel oil, waste oils, explosives, reactive materials, ignitable materials, corrosive materials,
hazardous chemicals, hazardous wastes, hazardous substances, extremely hazardous substances,
toxic substances, toxic chemicals, radioactive materials, infectious materials, and any other
element, compound, mixture, solution or substance that may pose a present or potential hazard to
human health or the environment.
The term "Release" shall mean any release, generation, treatment, disposal,
dumping, burying, or abandonrnent.
14. Indemnification. Seller shall protect, defend, indemnify and hold Buyer and its
successors and assigns harmless from and against any and all loss, liability, damage and expense
suffered or incurred before or after Closing by reason of (a) the breach of any representation,
warranty or agreement of Seller set forth in this Agreement, (b) the failure of Seller to perform any
obligation required by this Agreement to be performed by Seller, (c) the ownership, maintenance,
Page 13 of 20
and/or operation of the Property by Seller, not in conformance with this Agreement, or (d) any
injuries to persons or property from any cause occasioned in whole or in part by any acts or
omissions of the Seller, its representatives, employees, contractor or suppliers. Seller shall defend
any claim covered by this indemnity using counsel reasonably acceptable to Buyer. The
obligations of Seller under this Section shall survive the termination of this Agreement.
15. Entire Agreement. This Agreement contains the entire integrated agreement of the
Parties, including all of the covenants and conditions between the Parties with respect to the subject
matter of this Agreement, and supersedes all prior correspondence, agreements and
understandings, both verbal and written. No addition or modification of any term or provision of
this Agreement shall be effective unless set forth in writing and signed by Seller and Buyer.
16. Default, Remedies
16.1. Remedies and Specific Performance. In the event of breach or default of
this Agreement by either Party, the other Party may pursue any remedy available at law or in
equity. This Agreement pertains to the conveyance of an interest in real property, the unique nature
of which is hereby acknowledged by the Parties. Consequently, if Seller breaches or defaults under
this Agreement or any of the representations, warranties, terms, covenants, conditions or
provisions hereof, Buyer shall have, in addition to a claim for damages for such breach or default,
and in addition and without prejudice to any other right or remedy available under this Agreement
or at law or in equity, the right (a) to specific performance of this Agreement; or (b) to terminate
this Agreement upon written notice without liability to Seller.
16.2. Attorneys' Fees. If either Party brings an action or other proceeding against
the other Party to enforce any of the terms, covenants or conditions hereof or any instrument
executed pursuant to this Agreement, or by reason of any breach or default hereunder or
thereunder, the Party prevailing in any such action or proceeding shall be paid all costs and
reasonable attorneys' fees by the other Party, and in the event any judgment is obtained by the
prevailing Party all such costs and attorneys' fees shall be included in the judgment.
17. Notices. All written notices required to be given pursuant to the terms hereof shall
be either delivered personally, mailed by overnight courier with confirmation of delivery, or
deposited in the United States mail, certified mail, return receipt requested, postage prepaid and
addressed to the addresses listed below with copies to the parties listed after such address:
SELLER:
Brent Minor and Mary Minor
8001 Naneum Road
Ellensburg, WA 98926
With a copy to:
Draper Law PLLC
683332 d Avenue NE
Seattle, WA 98115
Page 14 of 20
Page 15 of 20
BUYER:
Forterra NW
901 5th Ave, Suite 2200
Seattle, WA 98164
Attn: Corporate Counsel
Kittitas County
205 W 5th Ave.
Ellensburg, WA 98926
Attn: Brett Wachsmith, Chairman
The foregoing addresses may be changed by written notice to the other Party as provided herein.
Mailed notice properly given shall be deemed received three (3) Business Days after deposit in the
mail.
18. Partial Invalidity. If any term or provision of this Agreement or the application
thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the
remainder of this Agreement, or the application of such term or provision to persons or
circumstances other than those as to which it is held invalid or unenforceable, shall not be affected
thereby; and each such term and provision of this Agreement shall be valid and be enforced to the
fullest extent permitted by law.
19. Waivers. No waiver of any breach of any covenant or provision in this Agreement
shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant
or provision in this Agreement. No extension of time for performance of any obligation or act
shall be deemed an extension of the time for performance of any other obligation or act.
20. Construction. Captions are solely for the convenience of the Parties and are not a
part of this Agreement. This Agreement shall not be construed as if it had been prepared by one
of the Parties, but rather as if both Parties had prepared it. If the date on which Buyer or Seller is
required to take any action under the terms of this Agreement is not a Business Day, the action
shall be taken on the next succeeding Business Day.
21. Time. Time is of the essence of every provision of this Agreement. As used in this
Agreement, the term “Business Day” refers to Monday through Friday, other than legal holidays
in the State of Washington.
22. Force Majeure. Performance by Seller or Buyer of their obligations under this
Agreement shall be extended by the period of delay caused by force majeure. Force majeure is
war, natural catastrophe, strikes, walkouts or other labor industrial disturbance, order of any
government, court or regulatory body having jurisdiction, shortages, blockade, embargo, riot, civil
disorder, or any similar cause beyond the reasonable control of the Party who is obligated to render
performance (but excluding financial inability to perform, however caused). A Party desiring to
assert force majeure is required to promptly notify the other Party with such information regarding
the event and its duration as the Party may reasonably request.
23. Successors. The terms, conditions and covenants contained in this Agreement shall
be binding upon and shall inure to the benefit of the successors and assigns of the Parties.
24. Applicable Law. This Agreement shall be governed by the law of the State of
Washington.
25. Recitals and Exhibits. The Recitals and Exhibits are incorporated into this
Agreement by this reference.
26. Counterparts. This Agreement may be signed in counterparts, any of which shall
be deemed an original.
[Remainder of page intentionally blank.]
Page 16 of 20
IN WITNESS WHEREOF, the undersigned have executed this Purchase and Sale Agreement
as of the Effective Date.
SELLER:
Brent Minor
Mary Minor
Date: Date:
BUYER:
FORTERRA NW,
a Washington nonprofit corporation
By:
Michelle Connor, President and CEO
Date:
KITTITAS COUNTY,
a Washington county
By:
Name:
Title:
Date:
Page 17 of 20
Exhibit List
Exhibit A Legal Description of the Property
Exhibit B Form of Deed of Conservation Easement — Final Draft
Page 18 of 20
EXHIBIT A
TO PURCHASE AND SALE AGREEMENT
Legal Description of the Property
[To be confirmed]
TRACT 1:
Parcel 5 of that certain Survey as recorded May 9, 2007, in Book 34 of Surveys, pages 42 and 43,
under Auditor's File No. 200705090017, records of Kittitas County, Washington; being a portion
of the Southeast Quarter of Section 8, Township 18 North, Range 19 East, W.M, in the County of
Kittitas, State of Washington.
TRACT 2:
Parcels A, B, C, and D of that certain Survey as recorded July 5, 2007, in Book 34 of Surveys,
pages 78 and 79, under Auditor's File No. 200707050010, records of Kittitas County, Washington;
being a portion of the Southwest Quarter of Section 9, Township 18 North, Range 19 East, W.M.,
in the County of Kittitas, State of Washington.
TRACT 3:
Parcels S1, S2, S3, S4, and S5 of that certain Survey as recorded July 10, 2007, in Book 34 of
Surveys, pages 82 and 83, under Auditor's File No. 200707100002, records of Kittitas County,
Washington; being a portion of the Southwest Quarter of Section 9, Township 18 North, Range 19
East, W.M., in the County of Kittitas, State of Washington.
1 ..
Parcels 1W, 3W, 4W, 5W, 6W, 7W and 8W of that certain Survey as recorded July 11, 2007, in
Book 34 of Surveys, pages 89 and 90, under Auditor's File No. 200707110035, records of Kittitas
County, Washington, being a portion of the West Half of Section 9, Township 18 North, Range
19 East, W.M., in the County of Kittitas, State of Washington.
TRACT 5:
Parcels 1E,2E, 3E, 4E, 5E, 6E, and 7E of that certain Survey as recorded July 12, 2007, in Book
34 of Surveys, pages 93 and 94, under Auditor's File No. 200707120013, records of Kittitas
County, Washington; being a portion of the West Half of Section 9, Township 18 North, Range
19 East, in the County of Kittitas, State of Washington.
TRACT 6:
Parcels 1, 2, 3, 4, 5, 6, 7, and 8 of that certain Survey as recorded July 13, 2007, in Book 34 of
Surveys, pages 95 and 96, under Auditor's File No. 200707130037, records of Kittitas County,
Washington; being a portion of the Southwest Quarter of Section 9, Township 18 North, Range 19
East, W.M., in the County of Kittitas, State of Washington.
TRACT 7:
Parcels A, B, C, D and E of that certain Survey as recorded July 25, 2007, in Book 34 of Surveys,
pages 106 and 107, under Auditor's File No. 200707250023, records of Kittitas County,
Washington; being a portion of the West Half of Section 9, Township 18 North, Range 19 East,
W.M., in the County of Kittitas, State of Washington.
Page 19 of 20
EXHIBIT B
TO PURCHASE AND SALE AGREEMENT
Form of Deed of Conservation Easement — Final Draft
[See attached]
Page 20 of 20
AFTER RECORDING RETURN TO:
Forterra NW
9015th Avenue, Suite 2200
Seattle, WA 98164
Please print or type information WASHINGTON STATE RECORDER'S Cover Sheet (RCW 65.04)
Document Title(s) (or transactions contained therein):
Deed of Agricultural Conservation Easement
Reference Number(s) of Documents assigned or released:
Additional reference numbers on page(s) of document.
Grantor(s) (Last name, first name, initials)
1. Minor, Brent
2. Minor, Mary
3.
❑ Additional names are on page(s) of document.
Grantee(s) (Last name first, then first name and initials)
1. Kittitas County (Grantee)
2. Forterra NW (Co -Grantee)
❑ Additional names are on page(s) of document.
Legal description (abbreviated: i.e. lot, block, plat or section, township, range)
[to be inserted]
❑Additional legal description is on Exhibit A.
Assessor's Property Tax Parcel/Account Number ❑ Assessor Tax # not yet assigned
[to be inserted]
The Auditor/Recorder will rely on the information provided on the form. The staff will not read the
document to verify the accuracy or completeness of the indexing information provided herein.
FINAL DRAFT 111 612 02 0
DEED OF AGRICULTURAL CONSERVATION EASEMENT
This DEED OF AGRICULTURAL CONSERVATION EASEMENT ("Easement") is made by
Brent Minor and Mary Minor, a married couple, (collectively, "Grantor"), having an address of
8001 Naneum Road, Ellensburg, WA 98926, in favor of the County of Kittitas, a political
subdivision of the State of Washington ("County" or "Grantee"), having an administrative
office address of 205 West 5"1' Ave., Ellensburg, WA 98926; and Forterra NW, a Washington
nonprofit corporation ("Forterra" or "Co -Grantee"), having an address of 901 5t` Avenue, Suite
2200, Seattle, WA 98164. Grantor and Co -Grantee may be referred to herein individually as a
"Party" and collectively as the "Parties" or "Co -Grantees." The following third party
beneficiaries (individually a `Beneficiary" and collectively, the `Beneficiaries") have certain
rights hereunder, including third party right of enforcement: The United States of America (the
United States), acting by and through the United States Department of Agriculture ("USDA")
Natural Resources Conservation Service ("NRCS") on behalf of the Commodity Credit
Corporation ("CCC") and the State of Washington, by and through the Washington State
Recreation and Conservation Office ("RCO").
1. RECITALS
1.1. Grantor is the owner in fee simple of the certain real property (hereinafter, "Protected
Property") located in Ellensburg, Kittitas County, Washington, more particularly
described in Exhibit "A" ("Legal Description") and shown on Exhibit `B" ("Site
Map"), which are attached to this instrument and incorporated herein by this reference.
The Protected Property consists of approximately 274 acres in 37 parcels, and is
commonly known as "Hairpin Ranch."
1.2. The Protected Property possesses significant agricultural values of great importance to
Grantor, Co -Grantee, the people of Kittitas County, and the people of the State of
Washington (collectively, "Agricultural Conservation Values"). The Agricultural
Conservation Values include, without limitation, existing and potential economic
productivity, the viability of the site for continued agricultural production, including
farm -to -market access, proximity to roads and utilities, and water availability.
Permanent protection of the Protected Property will further the purposes of the
Washington State Farm and Forest Account (FFA) established under RCW 79A.15.130,
which provides that moneys appropriated to the FFA "must be distributed for the
acquisition and preservation of farmlands and forestlands in order to maintain the
opportunity for agricultural and forest management activity upon these lands." The
legislatively declared policies of the State of Washington in the Washington State Open
Space Tax Act, Chapter 84.34 RCW ("OSTA" ), provide that "it is in the best interest of
the state to maintain, preserve, conserve, and otherwise continue in existence adequate
open space lands for the production of food, fiber and forest crop, and to assure the use
and enjoyment of natural resources and scenic beauty for the economic and social well
being of the state and its citizens." Under the OSTA, lands eligible for preferential real
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FINAL DRAFT 111612020
property tax treatment include lands such as the subject Protected Property where the
preservation in its present use would conserve and enhance natural resources and
promote conservation of soils. As of the Effective Date, the Protected Property is
classified by Kittitas County's Assessor's office as farm and agricultural land (as such
term is defined in the OSTA). Pursuant to such classification, the Protected Property
receives preferential real property tax treatment in accordance with the OSTA. It is the
intent of all Parties that the Protected Property shall be maintained in a manner that
allows it to remain eligible for designation as farm and agricultural land under the OSTA
during the term of this Easement. It is the intent of all parties that the Agricultural
Conservation Values of this easement shall be primary and the habitat or other
conservation values shall be secondary."
1.3. The Protected Property consists primarily of working farm and grazing land (as defined
in RCW §79A.15.010(4)) the soils which have been classified prime farmland by the
NRCS due to the soil quality, growing season, and moisture supply as needed for
sustained agricultural production.
1.4. The Protected Property is irrigated via flood irrigation utilizing water rights associated
with the Kittitas Reclamation District and also via a portion of water rights associated
with the Naneum Creek system that runs through the Protected Property.
1.5. The Agricultural Conservation Values are documented in an inventory of relevant
features of the Protected Property on file at the offices of Grantee and Co -Grantee and
incorporated herein by this reference ("Baseline Documentation"). The Baseline
Documentation consists of reports, maps, photographs, and other documentation that
provide, collectively, an accurate representation of the Protected Property at the time
of this grant and which is intended to serve as an objective information baseline for
monitoring compliance with the terms of this grant. The Parties acknowledge that the
Baseline Documentation is complete and accurate as of the date of this Easement. The
Baseline Documentation may be used to establish that a change in the use or condition
of the Protected Property has occurred, but its existence shall not preclude the use of
other evidence to establish the condition of the Protected Property as of the date of this
Easement. Grantee and/or Co -Grantee may use the Baseline Documentation in
enforcing provisions of this Easement, but are not limited to the use of the Baseline
Documentation to show a change in the use or condition of the Protected Property.
1.6. This Easement is acquired in part with funds provided under the Agricultural
Conservation Easement Program (ACEP) 16 U.S.C. Section 3865 et seq. and 7 CFR
Part 1468, administered by and through NRCS for the purpose of protecting the
agricultural use and future viability, and related conservation values, by limiting
nonagricultural uses of the Protected Property pursuant to that certain cooperative
agreement (#N5319ALE00100132) between NRCS and Co -Grantee ("United States
Grant Agreement"). NRCS is a third -party beneficiary of certain rights under this
Easement.
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FINAL DRAFT 1/16/2020
1.7. This Easement is acquired in part with a grant from RCO pursuant to that certain grant
agreement (#16-1634A) between RCO and Grantee and Co -Grantee dated July 15,
2019 ("RCO Grant Agreement"). RCO is a third -party beneficiary of certain rights
under this Easement.
1.8. Forterra is a Washington nonprofit nature conservancy corporation or association
authorized to acquire and hold conservation easement interests under RCW §64.04.130
and RCW §84.34.210.
1.9. County is authorized to acquire and hold conservation easement interests under RCW
§64.04.130 and RCW §84.34.210.
1.10. Grantor is the holder of water rights from the Kittitas Reclamation District in a quantity
up to 990 acre-feet per year for irrigation (the "KRD Water"), and is also the owner of
a water right dating from 1882 evidenced by a water right certificate stating a quantity
of up to 575 acre-feet per year for irrigation (the "Certificate"). The Parties agree that,
in order to maintain the opportunity for agricultural activity upon the Protected
Property pursuant to RCW §79A.15.130(1), it is appropriate to include in this Easement
all of the KRD Water and the first 372 acre-feet per year legally and physically
available under the Certificate, as collectively described in Exhibit "D" attached to this
instrument and incorporated herein by this reference (the "Dedicated Water Rights").
The balance of the authorized quantity under the Certificate is not subject to this
Easement, nor are any other water rights which Grantor may hold.
1.11. The Parties intend that the Agricultural Conservation Values be preserved and
maintained in perpetuity by permitting only those land uses on the Protected Property
that do not impair or interfere with the Agricultural Conservation Values.
1.12. Grantor, as owner of the Protected Property, has the right to protect and preserve the
Agricultural Conservation Values, and desires and intends to transfer such rights to Co -
Grantees in perpetuity, commencing on the Effective Date of this Easement.
2. CONVEYANCE AND CONSIDERATION
2.1. For the reasons stated above, and in consideration of the mutual covenants, terms,
conditions and restrictions contained herein, and pursuant to the laws of Washington
and in particular RCW §64.04.130 and RCW §84.34.210, Grantor hereby voluntarily
grants, conveys and warrants, for valuable consideration, the receipt of which is
acknowledged hereby, to Grantee and Co -Grantee a conservation easement in gross in
perpetuity over the Protected Property consisting of the rights in the Protected Property,
hereinafter enumerated, subject only to the title matters set forth in Exhibit E (Permitted
Exceptions), which is attached to this instrument and incorporated herein by this
reference.
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FINAL M11 -i1- 1 111612020
2.2. This conveyance is a conveyance of an interest in real property under the provisions of
RCW §64.04.130.
2.3. Grantor expressly intends that this Easement runs with the land and that this Easement
shall be binding upon Grantor's, Grantee's, and Co -Grantee's successors and assigns
in perpetuity.
3. PURPOSE
3.1. Purpose. The Purpose of this Easement is to protect the Agricultural Conservation
Values of the Protected Property forever and prevent any use of the Protected Property
that will impair or interfere with its Agricultural Conservation Values, thereby
maintaining the opportunity for agricultural activity upon the Protected Property
pursuant to RCW §79A.15.130(1).
3.2. Stewardship Plan. To further the Purpose of this Easement, the Grantee and/or Co -
Grantee may develop a plan for stewardship of the Protected Property (the
"Stewardship Plan") consistent with this Easement.
3.3. Interpretation of the Easement
3.3.1. The Parties intend that this Easement be interpreted in a manner consistent with
its Purpose.
3.3.2. The Parties intend that this Easement be interpreted to confine the Grantor's use
of the Protected Property to such activities that are consistent with the Purpose
and terms of this Easement. At the same time, the Parties intend, and this
Easement is structured, to give Grantor maximum flexibility and discretion to
undertake activities that are consistent with the Purpose and terms of this
Easement.
3.4. No Public Rights Conveyed Through Easement. The Parties acknowledge that,
except as specifically provided herein, Grantor does not grant, expand or extend any
rights to the general public through this Easement, including without limitation, any
rights of public access to, on or across, or public use of, the Protected Property.
4. RIGHTS CONVEYED TO GRANTEE AND CO -GRANTEE
To accomplish the Purpose of this Easement, the following rights are conveyed to
Grantee by this Easement:
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FINAL DRAFT 111612020
4.1. Protection. Grantee shall have the right to identify, protect, preserve, maintain and
conserve in perpetuity and to enhance, restore, or improve by mutual agreement the
Agricultural Conservation Values of the Protected Property.
4.2. Access by Grantee. As provided for and limited herein, Grantor hereby grants to
Grantee reasonable and non-exclusive access at reasonable times across the Protected
Property solely for the purposes of fulfilling Grantee's obligations under this Easement
and exercising its affirmative rights under this Easement. Specifically, Grantee shall
have the right:
4.2.1. To enter upon, inspect, observe and study the Protected Property, with such
persons as Grantee may require, at mutually agreeable dates and times and upon
reasonable prior notice to the Grantor, for the purpose of (a) identifying the
current uses and practices on the Protected Property and the condition of the
Protected Property, and (b) monitoring the uses and activities on the Protected
Property to determine whether they are consistent with this Easement.
4.2.2. To enter upon the Protected Property, at a mutually agreeable date and time and
upon reasonable prior notice to Grantor, to inspect the Protected Property after
major natural events occur, such as fires, windstorms, and floods.
4.2.3. To enter upon the Protected Property at such other times as are necessary if there
is reason to believe that a violation of the Easement is occurring, for the purposes
of enforcing the provisions of this Easement. Prior to entry, Grantee must
provide Grantor notice, and describe the basis of the reasonable belief that a
violation is occurring on the Protected Property.
4.2.4. Grantee shall exercise its access rights in compliance with applicable law and in
a manner that will not materially disturb or interfere with Grantor's reserved
rights, any other person's lawful use of the Protected Property, or Grantor's quiet
enjoyment of the Protected Property.
4.2.5. Grantor shall not unreasonably withhold or delay its consent to dates and times
of access proposed by Grantee.
4.3. Development Rights. Grantor hereby grants to Grantee all development rights (i.e.,
any interest in and the right to use or subdivide a lot for any and all residential,
commercial, and industrial purposes) that are now or hereafter allocated to, implied,
reserved or inherent in the Protected Property except as specifically reserved herein,
and the Parties agree that such rights may not be used on or transferred off of the
Protected Property as it now or hereafter may be bounded or described, or to any other
property adjacent or otherwise, or (except as expressly permitted herein) used for the
purpose of calculating permissible lot yield or density of the Protected Property or any
other property.
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FINAL DRAFT 1/16/2020
4.4. Injunction and Restoration. Grantee shall have the right to prevent, or cause Grantor
to prevent, any use of, or activity on, the Protected Property that is inconsistent with
the Purpose and terms of this Easement, including trespasses by members of the public,
and shall have the right to undertake or cause to be undertaken the restoration of such
areas or features of the Protected Property as may be materially damaged by activities
contrary to the provisions hereof, all in accordance with Section 9.
4.5. Enforcement. Grantee shall have the right to enforce the terms of this Easement, in
accordance with Sections 8 and 9.
4.6. Assignment. Grantee shall have the right to assign, convey, or otherwise transfer its
respective interest in the Protected Property in accordance with Section 13.
4.7. Signage. [Intentionally omitted.]
4.8. Co -Grantee: To accomplish the purpose of this Easement the rights conveyed to
Grantee by this Section 4 are also conveyed to Co -Grantee by this Easement. The
limitations imposed by this Section 4 on Grantee's exercise of such rights shall also
apply to Co -Grantee's exercise of such rights.
5. PERMITTED USES
5.1. General. Grantor reserves for itself and its successors and assigns, any and all rights
not otherwise conveyed to Grantee and Co -Grantee under this Easement and any and
all uses of, or activities on, the Protected Property that are not inconsistent with the
Purpose and terms of this Easement, and that are not prohibited herein. Without limiting
the generality of the foregoing, Grantor specifically reserves for itself and its successors
and assigns the following uses and activities, which shall be considered permitted uses
and activities under the Easement.
5.2. Agricultural Activities. Grantor may engage in, and allow others to engage in,
Agricultural Activities (as defined below) on the Protected Property, as further
provided for and limited in this Section and in Section 6.
5.2.1. As used herein, "Agricultural Activities" shall mean the commercial production
of horticultural, viticultural, floricultural, dairy, apiary, vegetable, or animal
products, including but not limited to crops commonly found in the community
surrounding the Protected Property, field crops, fruits, vegetables, horticultural
specialties, livestock or livestock products, or the commercial production of
berries, grain, hay, straw, seed, or Christmas trees not subject to the excise tax
imposed by RCW §§84.33.100 through 84.33.140, and all conditions and
activities occurring on a farm in connection with such commercial production,
including, but not limited to, marketed produce at roadside stands or farm
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FINAL DRAFT 111612020
markets; noise; odors; dust; fumes; operation of machinery and irrigation
pumps; movement, including, but not limited to, use of current county road
ditches, streams, rivers, canals, and drains, and use of water for agricultural
purposes; ground and aerial application of seed, fertilizers, conditioners, and
plant protection products; employment and use of labor; roadway movement of
equipment and livestock; protection from damage by wildlife; prevention of
trespass; and construction and maintenance of buildings, fences, roads, bridges,
ponds, drains, waterways, and similar features and maintenance of streambanks
and watercourses.
5.2.2. Agricultural Activities shall also include such "Accessory Uses," as defined as
of the Effective Date of this Easement in RCW §36.70A.177(3)(b), that are
related to the permitted Agricultural Activities on the Protected Property, that
maintain the primacy of, and are subordinate to, the farmland character and use
of the Protected Property, that are compatible with the Agricultural Conservation
Values, and that provide supplemental income.
5.2.3. All Agricultural Activities shall be carried out in accordance with applicable law
and in compliance with the Purpose and terms of this Easement. Grantor retains
discretion over the specific character and content of the management decisions
and practices necessary to identify, protect, preserve, maintain and conserve in
perpetuity and to enhance, restore, or improve the Agricultural Conservation
Values consistent with the Purpose and terms of this Easement.
5.3. Stewardship Activities. Grantor may engage in, and allow others to engage in, any
activity to monitor, protect and maintain the Agricultural Conservation Values with
prior written notice to and consent of Grantee and pursuant to any Stewardship Plan
that may cover the Protected Property and agreed to by the parties to the Stewardship
Plan.
5.4. Maintenance and Construction of Buildings and Other Structures
5.4.1. Maintenance of Existing Structures. Grantor may maintain, repair, replace or
decommission structures, houses, barns, water -pollution -control facilities, water
impoundments, fences, corrals, roads, ditches, sloughs, pumps, levees, and other
permanent improvements ("Improvements") existing on the Protected Property
as of the Effective Date of this Easement, provided that such activities related to
existing Improvements are carried out in compliance with the Purpose and terms
of this Easement, including the impervious surface limitations provided for in
Section 6.6.1. Such Improvements shall include utility systems that support the
Improvements, including, without limitation, electric power lines, septic
systems, water storage and delivery systems, and telephone and communication
cable systems.
FINAL Ms' I 1 1/16/2020
5.4.2. Construction of New Structures and Expansion of Existing Structures. Grantor
may construct additional Improvements not existing as of the Effective Date of
this Easement and may expand or enlarge Improvements existing on the
Protected Property as of the Effective Date of this Easement provided those
structures and improvements are located within the Building Envelopes (as
defined below in Section 6.6.2), are in compliance with the Purpose and terms
of this Easement, and are subject to the impervious surface limitations and
restrictions on new Improvements provided for in Section 6.6.
5.4.3. Reservation of Dwelling Units. Grantor reserves the right to use, maintain, repair,
replace, expand and/or enlarge existing single-family dwelling units and to construct
new single-family dwelling units within the Building Envelopes on the Protected
Property (collectively, the "Dwelling Units"), subject to applicable government rules
and regulations and subject to the impervious surface limitations and restrictions on new
Improvements provided for in Section 6.6, for the sole purpose of accommodating the
Grantors and their successors in interest to the Land or any portion thereof, the farm
operator(s), and/or the families of such persons, or for accommodating agricultural
employees of the owner(s) or operator(s) and their families. No more than three (3)
Dwelling Units in total will be permitted at any one time on the Protected Property and
all must be located within the Building Envelopes. As of the Effective Date of this
Easement, Grantor utilizes two (2) buildings as Dwelling Units: Grantor's primary
house and a pump/well house. At such time as the pump/well house is no longer used
for dwelling purposes it will not be considered a Dwelling Unit for purposes of this
Easement.
5.5. Water Rights. The Parties agree that the Dedicated Water Rights must be maintained
on the Property to ensure the protection of the Agricultural Conservation Values.
Grantor may exercise the Dedicated Water Rights by putting them to any beneficial use
that is not inconsistent with the Purpose and terms of this Easement, and that is not
prohibited herein. Grantor may maintain, repair, and if destroyed, reconstruct or replace
any existing facilities relating to the Dedicated Water Rights (such as ditches, wells
and reservoirs) with notice to Grantee as provided for in Section 7, provided that such
activities are carried out in compliance with the Purpose and terms of this Easement.
5.6. Recreational or Educational Use. Grantor may engage in, and allow others to engage
in, recreation or educational activities on the Protected Property. Recreational uses are
limited to uses such as hiking, fishing, horseback riding, and other forms of recreation
that do not require site modification to accommodate motorized, mechanical or
electronic accessories. All forms of developed recreation or recreation that adversely
impact the Agricultural Conservation Values are prohibited.
All recreational and educational activities on the Protected Property shall be carried out
in compliance with the Purpose and terms of this Easement, and in a manner that
in
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maintains the primacy of, and remains subordinate to, the farmland character and use of
the Protected Property.
5.7. Forestry Use: Grantor may remove trees from the Protected Property when required
for safety, fire protection, salvage purposes, pest control, disease control, restoration,
domestic use, or as necessary to benefit Agricultural Activities (the "Forestry
Activities"). All Forestry Activities on the Protected Property shall be carried out in
compliance with the Purpose and terms of this Easement.
Grantor shall not engage in or permit any Forestry Activities that would preclude the
opportunity for agricultural activity upon the Protected Property. The provisions of this
Section 5.7 shall not apply to the commercial production of Christmas trees not subject
to the excise tax imposed by RCW §§84.33.100 through 84.33.140.
5.8. Emergencies: Grantor may undertake any activities that are necessary to protect health
or safety or prevent significant property damage on the Protected Property or are
required by and subject to compulsion of any governmental agency; provided, however,
that Grantor shall first reasonably attempt to notify Grantee and Co -Grantee prior to
taking such action. If Grantee and Co -Grantee cannot provide consent, with or without
conditions, within such time as is reasonable under the circumstances, Grantor may
proceed with such action without consent.
6. PROHIBITED USES AND RESTRICTIONS ON PERMITTED USES
6.1. General. Any use of, or activity on, the Protected Property inconsistent with the
Purpose or other terms of the Easement is prohibited, and Grantor acknowledges and
agrees that it will not conduct, engage in, or permit any such use or activity. Without
limiting the generality of the foregoing, and except as permitted in Section 5 above, the
following uses of, or activities on, the Protected Property are either (a) inconsistent
with the Agricultural Conservation Values and Purpose of this Easement and prohibited
herein or (b) limited as provided herein to make such uses or activities consistent with
the Agricultural Conservation Values and Purpose of this Easement.
6.2. No Conversion to Incompatible Uses. Grantor shall not convert the Protected
Property to industrial or suburban/residential development or to any other use that is
incompatible with maintaining the opportunity for agricultural activity on the Protected
Property.
6.3. Limitations on Subdivision. The Protected Property may not be further divided,
partitioned, or subdivided except in its current configuration. "Current configuration"
means the entire Protected Property, i.e. all the separate legal parcels that make up the
Protected Property taken together as one whole entity.
6.4. Water Rights
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6.4.1 In furtherance of the Purpose of this Easement, Grantor shall cooperate with
Grantee and Co -Grantee to help assure the maintenance of the Dedicated Water
Rights.
6.4.2 Except as expressly provided in this section, Grantor shall not transfer,
encumber, sell, lease or otherwise separate the Dedicated Water Rights from the
Protected Property.
6.4.3 Grantor shall not abandon, relinquish or otherwise lose or forfeit, by action or
inaction, any of the Dedicated Water Rights.
6.4.4 Grantor shall take affirmative actions to avoid such abandonment,
relinquishment, loss or forfeiture, including but not limited to the following: i)
exercising the Dedicated Water Rights by putting them to beneficial use in
accordance with RCW §90.14; ii) seeking to place or enroll the Dedicated Water
Rights in the Washington State trust water rights program on a temporary basis,
provided that any acquisition of the Dedicated Water Rights by the State shall
be expressly conditioned to limit its use to instream purposes and its duration to
a term no longer than 10 years; and/or (iii) seeking to lease the Dedicated Water
Rights for use on land other than the Protected Property for a term no longer
than 10 years, with prior written notice to and consent of Grantee and notice to
Co -Grantee, after obtaining approval in accordance with RCW §§90.03.380,
90.03.383, 90.03.390, or 90.44.100 for a temporary transfer or change of the
Water Rights; provided, however, that any such lease shall require the lessee to
make beneficial use of the Dedicated Water Rights in accordance with RCW
§90.14 and for Agricultural Activities only (collectively "Water Rights
Maintenance Actions"). If Grantor is unable to take one or more of the Water
Rights Maintenance Actions and the Dedicated Water Rights are under threat of
abandonment, relinquishment, loss or forfeiture, Grantor shall convey
ownership of said rights to the State Water Rights Trust Program on a temporary
basis as defined in 6.10.4 (ii) in order to avoid relinquishment and allow the
rights to be withdrawn at the request of the Grantor, Grantee or Co -Grantee in
order to maintain the opportunity for agricultural activity on the Protected
Property.
6.4.5 Any relinquishment, loss or forfeiture of the Dedicated Water Rights shall not
be deemed or construed to be a waiver of Grantee or Co -Grantee's rights under
this Easement or to defeat the Purpose of this Easement, and shall not otherwise
impair the validity of this Easement or limit its enforceability in any way.
6.5. Limitations on Agricultural Use.
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6.5.1. The establishment or maintenance of a commercial feedlot is prohibited. For
purposes of this Easement, a commercial feedlot is defined as a permanently
constructed confined area or facility within which the land is not grazed or
cropped annually, and that is used to receive livestock that are confined solely
for the purpose of growing or finishing. However, seasonal confinement of
animals raised on the Protected Property and year-round confinement for the
commercial production of dairy products on the Protected Property are expressly
permitted. Furthermore, nothing in this Section shall prevent Grantor from
leasing pasture for the grazing of livestock owned by others.
6.5.2. Grantor shall not engage in, or permit others to engage in, the commercial
production of cultivated marine or freshwater aquatic products on the Protected
Property.
6.5.3. Horticultural crops, such as ornamental trees and shrubs, and the continuous
production of sod or other crops where soil is removed above tolerable limits is
prohibited.
6.6. Limitations on Improvements. Grantor may build or rebuild Improvements only in a
manner consistent with the following absolute limit on Impervious Surfaces (as defined
below) and other Improvement -related limitations:
6.6.1. Impervious Surfaces Limitation.
6.6.1.1.As used herein, "Impervious Surfaces" means material that does not allow
water to percolate into the soil on the Protected Property, including, but not
limited to, buildings with or without flooring, paved areas, and any other
surfaces that are covered by asphalt, concrete, or roofs.. Impervious Surfaces
do not include an open uncovered flow control or storage area or water
quality treatment facility, provided that the construction and maintenance of
such area or facility is consistent with the Purpose and terms of this
Easement.
6.6.1.2. The total area of the Protected Property covered by Improvements of any
kind and Impervious Surfaces shall be limited to no more than two percent
(2%) of the area of the Protected Property; provided, however, that minor
unenclosed agricultural improvements such as corrals, hayracks, headgates,
fences, ditches, culverts, stock tanks, or other minor agricultural structures
("Minor Agricultural Improvements") may be constructed or placed on the
Protected Property and not count against this total impervious surface limit.
While graveled surfaces that allow water to percolate into the soil are not
considered Impervious Surfaces, the total amount of gravel plus Impervious
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Surfaces shall never exceed four percent (4%) of the total area of the
Protected Property.
6.6.2. Limitations on Building Envelope Improvements
6.6.2.1. Building Envelope Improvements for Agricultural Activities. Within the
two building envelopes totaling approximately twenty (20) acres and
described and shown on Exhibit "C" ("Building Envelopes"), and subject to
the limits on Impervious Surfaces in this Section 6.6, Grantor may maintain,
repair, replace, decommission, expand, or enlarge Improvements existing on
the Protected Property as of the Effective Date of this Easement and may
install, build or construct, expand, enlarge, maintain, repair, replace or
decommission Improvements not existing as of the Effective Date of this
Easement. Grantor may build new, additional agricultural buildings within
the Building Envelopes, subject to the impervious surface restrictions in
Section 6.6.1 and other conditions in Sections 5 and 6 above.
6.6.2.2. Building Envelope Improvements for Nonagricultural Activities. For
personal and domestic uses and activities and other nonagricultural activities
within the Building Envelopes, and subject to the limits on Impervious
Surfaces in this Section 6.6 and the limits on Dwelling Units in Section 5.4.3
above, Grantor may maintain, repair, replace, decommission, expand or
enlarge Improvements existing on the Property as of the Effective Date of
this Easement, and may install, build or construct, expand, enlarge, maintain,
repair, replace or decommission Improvements not existing as of the
Effective Date of this Easement, if Grantor provides Grantee and Co -
Grantee advance written notice of the proposed new, expanded or enlarged
Improvements and consent is given by Grantee and Co -Grantee for such
proposed Improvements as provided for in Section 7, which consent shall
not be withheld provided all such proposed Improvements are confirmed to
be located completely within the Building Envelopes and otherwise comply
with this Easement.
6.6.3. Limitations on New Improvements Outside the Building Envelopes
6.6.3.1.Outside the Building Envelopes, Grantor shall not expand or enlarge
Improvements existing on the Property as of the Effective Date or install,
build, or construct new Improvements not existing as of the Effective Date
unless such Improvements are consented to in writing in advance by Grantee
and Co -Grantee as provided for in Section 7 and such Improvements are
necessary for Agricultural Activities (excluding Accessory Uses) and in
compliance with the total impervious surface limit of Section 6.6.1.,
provided, however, that Grantor may install, build or construct, expand or
enlarge Minor Agricultural Improvements without providing such notice or
receiving such consent.
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6.6.3.2.Nonagricultural Accessory Uses, including, without limitation the Dwelling
Units, shall not be located outside the Building Envelopes, with the
exception of a well or drain field which may be located outside of the
Building Envelopes to the extent necessary to make a Dwelling Unit
habitable and shall not otherwise convert more than one acre of agricultural
land to nonagricultural uses.
6.6.4. Alternative Energy Production. Grantor may install, build, or construct
Improvements for alternative energy production (micro -hydro, micro -wind or
micro -solar power) exclusively for generating energy for the permitted uses on
the Protected Property with advance written notice to Grantee and Co -Grantee
and consent of Grantee for such Improvements as provided for in Section 7,
which consent shall not be unreasonably withheld, and provided no access or
other easement across the property is required which is inconsistent with the
Purpose of this Easement. This is subject to local legal limits on wind power
generation as required by Section 6.12 and other applicable local regulations.
6.6.5. Limitations on Improvements Related to Advertising. Commercial signs,
billboards, or other improvements installed, built or constructed for the purpose
of advertising nonagricultural activities or products are not allowed on the
Protected Property, except in connection with the sale or lease of the Protected
Property or to state the conditions of access to the Protected Property. Signage
consistent with the character of a working farm, and for Agricultural Activities,
is allowed on the Protected Property.
6.7. Limitations on Mining: Grantor shall not conduct, engage in, or permit the
commercial mining or commercial extraction of soil, sand, gravel, oil, natural gas, fuel,
or any other mineral substance, using any surface mining method. Grantor may conduct
or engage in mineral extraction of soil, sand, and gravel solely for a permitted use on
the Protected Property in a manner consistent with the purpose of this Easement and all
applicable laws and regulations, minimal in scope and impact, and not exceeding one-
half acre.
6.8. Limitations on Alteration of Land. Grantor shall not alter the surface of the land,
including, without limitation, grading, excavating or removing soil, sand, gravel, rock,
stone, aggregate, peat, or sod, except as provided below.
6.8.1. Notwithstanding anything in this Section or Section 6.7 to the contrary, soil,
sand, gravel, rock, stone, aggregate, peat or sod may be extracted without further
consent from Grantee so long as such extraction is solely for use on the Protected
Property, is in conjunction with permitted Agricultural Activities, is revegetated
promptly after extraction is complete, and is accomplished in a manner that is
consistent with the Purpose and terms of this Easement.
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6.8.2. Notwithstanding anything in this Section to the contrary, prior to extraction
activities or developing improvements as referenced herein, Grantor shall
comply with all applicable state and federal laws and shall give notice to and
receive consent from Grantee as provided for in Section 7 with respect to any
alteration of land that would have the effect of physically disturbing a known
cultural site.
6.9. No Significant Erosion or Pollution: Grantor shall not engage in any use or activity
that causes or is likely to cause significant soil degradation or erosion or significant
contamination or pollution of any soils or surface or subsurface waters on the Protected
Property. This prohibition is not intended to limit the grazing or pasturing of cattle on
the Protected Property to any greater extent than applicable local, state, or federal laws
and regulations related to soil and water protection.
6.10. Limitations on Waste Disposal.
6.10.1. Grantor may accumulate and store ashes, garbage or other waste ("Trash") on
the Protected Property only if such accumulation occurs in the normal course of
domestic or Agricultural Activities on the Protected Property. Long-term
accumulation of Trash (i.e., exceeding one calendar year in time) may occur
within areas designated by Grantor with prior notice to Grantee and Co -Grantee
and written consent of Grantee as long as such waste is either destined for
transfer off-site, or for incineration on-site, or, in the case of biodegradable
material, composted on-site.
6.10.2. Grantor shall not otherwise dispose of or Release (or permit the disposal or
release of) any Hazardous Substance on the Protected Property. The term
"Release" shall mean any release, generation, treatment, disposal, dumping,
burying, or abandonment. The term "Hazardous Substance" shall mean any
substances, materials, or wastes that are hazardous, toxic, dangerous, or harmful
or are designated as, or contain components that are, or are designated as,
hazardous, toxic, dangerous, or harmful and/or which are subject to regulation
as hazardous, toxic, dangerous, or harmful or as a pollutant by any federal, state,
or local law, regulation, statute, or ordinance, including, but not limited to,
petroleum or any petroleum product. The term "Hazardous Substances" shall
not include biosolids, herbicides, pesticides, rodenticides, insecticides, and
fertilizers applied in accordance with federal, state, and local law. Any storage
and disposal of Hazardous Substances shall be in accordance with federal, state,
and local law.
6.11. No Compensatory Mitigation. The creation, enhancement, restoration or
preservation of wetlands, fish or wildlife habitat, or other natural resources for the
purpose of, directly or indirectly, compensating for or mitigating resource losses or
damages in any way associated with actual or potential impacts of development except
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for impacts caused by Grantor on the Protected Property ("Compensatory Mitigation")
is prohibited on the Protected Property. Compensatory Mitigation includes, but is not
limited to, mitigation banking, conservation banking, and any other sale or exchange
of mitigation credits based on the creation, restoration, enhancement and/or
preservation of such natural resources within the Protected Property.
6.12. Compliance with Regulatory Requirements. Grantor shall conduct all reserved and
permitted uses and activities under this Easement to meet all requirements of federal,
state and local statutes, rules, and regulations as they may be amended from time to
time.
6.13. Limitation on Transfers.
6.13.1. For purposes of this Section, "Transfer" includes but is not limited to any sale,
grant, lease, hypothecation, encumbrance, assignment, conveyance, or any
transaction the purpose of which is to effect a sale, grant, lease, hypothecation,
encumbrance, assignment, or conveyance.
6.13.2. Except as provided in Sections 6.13.3 and 6.13.4, Grantor shall not undertake or
permit any Transfer of any rights in the Protected Property without prior notice
to Grantee and Co -Grantee and consent of Grantee as provided for in Section 7;
provided, however, that such consent shall not be withheld unless Grantee
determines that the proposed Transfer would be inconsistent with the Purpose
and terms of this Easement.
6.13.3. The following shall require notice to but shall not require consent of Grantee
and Co -Grantee: i) any gift, bargain, sale or devise of fee simple title to the
Protected Property; ii) any mortgage, deed of trust, or similar document
providing security for an indebtedness of Grantor, provided that such security
interest shall be subject and subordinate to this Easement; iii) leases for
telecommunications installations or wind energy installations within the
Building Envelopes, as provided for in Section 6.6.2.2; and iv) temporary
transfers or leases of the Dedicated Water Rights.
6.13.4. The following shall require no notice to or consent of Grantee or Co -Grantee: a
leasehold interest for agricultural purposes, provided, however, that the lease
shall expressly describe this Easement.
7. NOTICE AND CONSENT
7.1 Notice.
7.1.1 Grantee. Certain provisions of this Easement require Grantee to give notice to
Grantor prior to undertaking certain activities. Whenever such notice is required,
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and no other timeline for notice is set forth elsewhere in this Easement, Grantee
shall provide such notice in writing not less than thirty (30) days prior to the date
Grantee intends to undertake the use or activity in question. Grantee shall
provide a copy of any such notice to Co -Grantee and/or each Beneficiary of this
Easement concurrently with notice to Grantor.
7.1.2 Grantor. Certain provisions of this Easement require Grantor to give notice to
Grantee, Co -Grantee, NRCS, and/or RCO prior to undertaking certain permitted
uses and activities (e.g., Sections 5 and 6). The purpose of requiring Grantor to
notify Grantee, Co -Grantee, NRCS, and RCO prior to undertaking these
permitted uses and activities is to afford Grantee, Co -Grantee, NRCS, and RCO
an adequate opportunity to ensure that the use or activity in question is designed
and carried out in a manner consistent with the Purpose of this Easement.
Whenever such notice is required, and no other timeline for notice is set forth
elsewhere in this Easement, Grantor shall provide such notice in writing not less
than) sixty (60) days prior to the date Grantor intends to undertake the use or
activity in question. The notice shall describe the nature, scope, design, location,
timetable, and any other material aspect of the proposed use or activity in
sufficient detail to permit Grantee to make an informed judgment as to its
consistency with the terms of this Easement and the Purpose thereof. Upon
receipt of such notice, Grantee shall immediately forward a copy to Co -Grantee
and each Beneficiary of this Easement.
7.2 Consent
7.2.1 Consent by Co -Grantee and Beneficiaries is Required. Wherever in this
Easement Grantee's consent is required, such consent may be required of Co -
Grantee and each Beneficiary to this Easement.
7.2.2 Consent Not Unreasonably Withheld. Wherever in this Easement a Party's or
a Beneficiary's consent is required, such consent may be withheld only upon a
reasonable determination by the consenting party that the action as proposed
would be inconsistent with the Purpose or terms of this Easement and cannot be
modified to make the proposed action consistent with the Purpose and terms of
this Easement. Any consent may include reasonable conditions consistent with
the Purpose and terms of this Easement that must be satisfied in undertaking the
proposed action, use, or activity.
7.2.3 Timeline for Consent. Whenever in this Easement Grantor's or Grantee's
consent is required, and no other timeline for consent is set forth elsewhere in
this Easement, the party whose consent is required shall grant or withhold its
consent in writing within the following time periods:
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7.2.3.1 Grantor. Where consent by Grantor is required under this Easement,
Grantor shall grant or withhold its consent within sixty (60) days of
receipt of a written request for consent.
7.2.3.2 Grantee. Where consent by Grantee is required under this Easement,
Grantee shall grant or withhold its consent within sixty (60) days of
receipt of a written request for consent.
7.2.3.3 Co -Grantee. Where consent by Co -Grantee is required under this
Easement, Co -Grantee shall grant or withhold its consent within thirty
(30) days of receipt of Grantee's written decision to grant or withhold
consent or within ninety (90) days of receipt of Grantor's written request
for consent, whichever comes later.
7.2.3.4 Beneficiaries. Where consent by any Beneficiary is required under this
Easement, the Beneficiary shall grant or withhold its consent within
thirty (30) days of receipt of Grantee's written decision to grant or
withhold consent or within ninety (90) days of receipt of Grantor's
written request for consent, whichever comes later.
7.2.4 Failure to Grant or Deny Consent Within the Required Time. When consent
is required under this Easement, and when such consent is not granted or denied
within the time period and manner set forth in this Section 7, the party requesting
consent may conclusively assume the other party's consent of the proposed
action, use, or activity in question. The Parties and each of the Beneficiaries
agree that failure to grant or withhold consent within the required time on any
proposed action, use or activity shall not be deemed or construed to be a waiver
of Grantee's, Co -Grantee's, or any Beneficiary's rights under this Easement
with respect to any future proposed action, use or activity.
7.2.5 Emergencies. In emergency situations, the Parties acknowledge that Grantor
may not be able to comply with the notice and consent timelines in this Section
7. As such, Grantor may undertake any activities that are necessary to protect
health or safety or prevent imminent and significant property damage on the
Protected Property, or as required by and subject to compulsion of any
governmental agency; provided, however, that Grantor shall first attempt to
notify Grantee and Co -Grantee prior to taking such action where notice is
otherwise required under this Easement. If Grantee and Co -Grantee cannot
provide required consent, with or without conditions, within such time as is
reasonable under the circumstances, Grantor may proceed with such action
without consent.
7.3 Optional consultation. If Grantor is unsure whether a proposed use or activity is
prohibited by this Easement, Grantor may consult Grantee by providing written notice
to Grantee describing the nature, scope, design, location, timetable, and any other
material aspect of the proposed use or activity in sufficient detail to permit Grantee to
make an informed judgment as to its consistency with the Purpose of this Easement
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and to provide comments thereon to Grantor. This Section 7.3 does not itself impose a
requirement of prior consent of the activity described in any such notice.
7.4 Addresses for Notices. Any notice, demand, request, consent, concurrence, approval,
or communication that any party desires or is required to give to the other shall be in
writing either served personally or sent by registered mail or overnight courier with
proof of delivery, addressed as follows (or to such other address as any party from time
to time shall designate by written notices to each other party):
To Grantor: Brent Minor and Mary Minor
8001 Naneum Road
Ellensburg, WA 98926
Phone: 509-899-5858
To Grantee: Kittitas County
411 North Ruby, Suite 1
Ellensburg, WA 98926
Phone: 509-962-7506
To Co -Grantee: Forterra NW
901 5a' Ave., Suite 2200
Seattle, WA 98164
Phone: 206-292-5907
To RCO- Recreation and Conservation Office Director
1111 Washington St SE, Olympia, WA 98502
PO Box 40917, Olympia, WA 98504-0917
Phone: 360-902-3000
To the NRCS: State Conservationist
U.S. Natural Resources Conservation Service
Washington State Office
316 W. Boone Ave., Suite 450
Spokane, WA 99201-2348
Phone: 509-323-2900
8 DISPUTE RESOLUTION
8.1 Preventive Discussions.
8.1.1 Grantor, Grantee, and Co -Grantee will promptly give the other Parties notice of
problems or concerns arising in connection with the others' actions under this
Easement or the use of or activities or conditions on the Protected Property, and
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will meet as needed, but no later than fifteen (15) business days after receipt of
a written request for a meeting, to minimize the same.
8.1.2 Grantee shall invite each Beneficiary to this Easement to such preventive
discussion meetings provided for in this Section 8, however, the Beneficiaries
are not required to attend such meetings.
8.2 Mediation. If the Parties disagree as to the consistency of any proposed use or activity
with the Purpose or terms of this Easement and the Parties are unable to resolve such
disagreement through unassisted preventive discussions between themselves and each
Beneficiary to this Easement, and if Grantor agrees not to proceed with the use or
activity pending resolution of the dispute, Grantor, Grantee and/or Co -Grantee shall
refer the dispute to mediation by request made in writing upon the other and with notice
to NRCS and RCO (who have full discretion to participate or not to participate in the
mediation). Within ten (10) business days of the receipt of such a request, the parties
to the mediation ("Mediation Parties") shall select a single impartial mediator.
Mediation shall then proceed in accordance with the following guidelines:
8.2.1 Purpose. The purpose of the mediation is to: (a) promote discussion among the
Mediation Parties; (b) assist the Mediation Parties to develop and exchange
pertinent information concerning the issues in dispute; and (c) assist the
Mediation Parties to develop proposals which enable them to arrive at a mutually
acceptable resolution of the controversy. The mediation is not intended to result
in any express or de facto modification or amendment of the terms, conditions
or restrictions of this Easement.
8.2.2 Participation. The mediator may meet with the Mediation Parties and their
counsel jointly or ex parte. The Mediation Parties agree that they will participate
in the mediation process in good faith and expeditiously, attending all sessions
scheduled by the mediator. Representatives of all Mediation Parties with
settlement authority will attend mediation sessions as requested by the mediator.
8.2.3 Confidentiality. All information presented to the mediator shall be deemed
confidential and shall be disclosed by the mediator only with the consent of the
Mediation Parties or their respective counsel. The mediator shall not be subject
to subpoena by any party. No statements made or documents prepared for
mediation sessions shall be disclosed in any subsequent proceeding or construed
as an admission of a party. Records of mediation communications shall be
exempt from the requirements of Chapter 42.56 RCW (Washington State Public
Records Act) to the extent provided for in Chapter 7.07 RCW (Washington State
Uniform Mediation Act).
8.2.4 Time Period. Neither party shall be obligated to continue the mediation process
beyond a period of sixty (60) days from the date of receipt of the initial request
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or if the mediator concludes that there is no reasonable likelihood that continuing
mediation will result in a mutually agreeable resolution of the dispute.
8.2.5 Costs. The costs of the mediator shall be borne equally by the Parties; the
Mediation Parties shall bear their own expenses, including attorney's fees,
individually.
8.3 Arbitration. In the event the Parties are unable to resolve such disagreement through
mediation,the Parties and each Beneficiary may by mutual agreement submit disputed
matters to arbitration upon such rules of arbitration as Grantor, Grantee, Co -Grantee
and each Beneficiary may agree.
9 GRANTEE'S AND CO -GRANTEE'S REMEDIES
9.1 Grantee and Co -Grantee's Rights and Obligations. The Grantee shall have the
primary responsibility of monitoring and enforcing this easement, including but not
limited to accessing the Protected Property at least once per year to monitor use and
activities in accordance with Section 4.2.1 above and as required by funding sources,
determining if a violation has occurred, providing or withholding consent to Grantor,
and for approving any amendments to the Deed of Conservation Easement. Remote
sensing may be used to document land changes and new construction. Annual onsite
inspection is required to monitor the following: sheet erosion; erosion from
concentrated flow; runoff from heavy use areas; conditions of waterways, diversions,
and riparian areas; and other changes in the baseline conditions. Grantee will share
with the Co -Grantee monitoring and stewardship information, including but not limited
to monitoring reports at least annually and any written notices or consents to and/or
from Grantor. The Grantee is responsible for any costs incurred in enforcing the terms
of the easement, including any attorney's fees and any costs of the suit. Grantee may
recover costs from Grantor and/or a third party as described in this Section 9.
Grantee shall alert Co -Grantee to any potential or actual violation of the Easement as
soon as practically possible following discovery of such violation, and Grantee and Co -
Grantee shall make good faith efforts to determine a unified course of action should a
potential or actual violation of the Easement arise.
Co -Grantee shall have the right to monitor and enforce the terms of the Easement if
Grantee becomes unable or fails to enforce the Easement, or if Co -Grantee in its sole
discretion finds that Grantee's enforcement action or consent to Grantor fails to protect
the conservation purposes of the Easement. Grantee shall reimburse Co -Grantee for all
costs incurred in monitoring and enforcing the easement.
9.2 Notice of Non -Compliance. If Grantee or Co -Grantee determine that the Grantor is
in violation of the terms of this Easement or that a violation is likely to occur, Grantee
or Co -Grantee shall give written notice to Grantor of such violation and demand
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corrective action sufficient to cure the violation and, where the violation involves
injury to the Protected Property resulting from any use or activity inconsistent with the
Purpose or terms of this Easement, to restore the portion of the Protected Property so
injured to its prior or potential condition in accordance with a plan to which Grantee
and Co -Grantee have given consent.
9.3 Grantor's Failure to Respond. Grantee or Co -Grantee may bring an action as
provided in Section 9.3 if Grantor:
9.3.1 Fails to cure the violation within thirty (30) days after receipt of notice thereof
from Grantee or Co -Grantee;
9.3.2 Under circumstances where the violation cannot reasonably be cured within the
thirty (30) day period, fails to begin curing such violation within the thirty (30)
day period; or
9.3.3 Fails to continue diligently to cure such violation until finally cured.
9.4 Grantee's or Co -Grantee's Action. Grantee or Co -Grantee may bring an action at
law or in equity, or both, in a court of competent jurisdiction to enforce the terms of
this Easement, to enjoin the violation, ex parte as necessary and as allowed under the
applicable civil rules, by temporary or permanent injunction, to recover any damages
to which it may be entitled for violation of the terms of this Easement or injury to any
of the Agricultural Conservation Values protected by this Easement, including
damages for the loss of the Agricultural Conservation Values; and to require the
restoration of the Protected Property to the condition that existed prior to any such
injury. Without limiting Grantor's liability therefor, Grantee or Co -Grantee, in their
sole and absolute discretion, may apply any damages recovered to the cost of
undertaking any corrective action on the Protected Property provided, however, that
Co -Grantee shall obtain Grantee's and Beneficiaries' consent before applying any such
damages. All such actions for injunctive relief may be taken without Grantee or Co -
Grantee being required to post bond or provide other security.
9.5 Immediate Action Required. Notwithstanding any other provision of this Easement,
if Grantee or Co -Grantee, in their sole and absolute discretion, determine that
circumstances require immediate action to prevent or mitigate significant damage to
the Agricultural Conservation Values, Grantee or Co -Grantee may pursue their
remedies under this Section 9 without prior notice to Grantor, without participation in
dispute resolution as provided for in Section 8, or without waiting for the period
provided for cure to expire.
9.6 Nature of Remedy. Grantee's and Co -Grantee's rights under this Section 9 apply
equally in the event of either actual or threatened violations of the terms of this
Easement. Grantor agrees that Grantee's and Co -Grantee's remedies at law for any
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violation of the terms of this Easement are inadequate, and that Grantee and Co -
Grantee shall be entitled to the injunctive relief described in this Section 9 both
prohibitive and mandatory, in addition to such other relief to which Grantee and Co -
Grantee may be entitled, including specific performance of the terms of this Easement,
without the necessity of proving either actual damages or the inadequacy of otherwise
available legal remedies. Grantee's and Co -Grantee's remedies described in this
Section 9 shall be cumulative and shall be in addition to all remedies now or hereafter
existing at law or in equity. The provisions of Section 9.6 shall not be interpreted to
preclude Grantee or Co -Grantee from obtaining injunctive relief.
9.7 Damages. Inasmuch as the actual damages to the Agricultural Conservation Values
that could result from a breach of this Easement by Grantor would be impractical or
extremely difficult to measure, the Parties agree that the money damages Grantee
and/or Co -Grantee are entitled to recover from Grantor shall be, at Grantee's and/or
Co -Grantee's election, the higher of
(i) the amount of economic gain realized by Grantor from violating the terms of the
Easement or (ii) the cost of restoring any Agricultural Conservation Values that have
been damaged by such violation. In the event Grantee or Co -Grantee chooses the
second of these two measures, Grantor agrees to allow Grantee, Co -Grantee, their
agents or contractors, to enter upon the Protected Property and conduct restoration
activities.
9.8 Costs of Enforcement. In the event Grantor, Grantee, or Co -Grantee finds it necessary
to bring an action at law or other proceeding against the other party to enforce or
interpret any of the terms, covenants, or conditions of this Easement, the prevailing
party in any such action or proceeding shall be paid all costs and reasonable attorneys'
and consultants' fees by the other party and all such costs and attorneys' and
consultants' fees shall be included in any judgment secured by such prevailing party.
9.9 Grantee's Discretion. Enforcement of the terms of this Easement shall be at the
discretion of the Grantee, or in the absence of action by Grantee, at the discretion of
the Co -Grantee. Any forbearance by Grantee or Co -Grantee to exercise its rights under
this Easement in the event of any breach of any terms of this Easement by Grantor shall
not be deemed or construed to be a waiver by Grantee or Co -Grantee of such term or
of any of Grantee's or Co -Grantee's rights under this Easement. No delay or omission
by Grantee or Co -Grantee in the exercise of any right or remedy upon any breach by
Grantors shall impair such right or remedy or be construed as a waiver.
9.10 Waiver of Certain Defenses. Grantor acknowledges that it has carefully reviewed
this Easement and has consulted with and been advised by legal counsel of its terms
and requirements. In full knowledge of the provisions of this Easement, Grantor
hereby waives any claim or defense it may have against Grantee, Co -Grantee, or their
successors in interest under or pertaining to this Easement based upon abandonment,
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adverse possession or prescription relating to the Protected Property or this Easement.
Except for the foregoing, Grantor specifically retains any and all rights it has under the
law as owner of the Protected Property, including, without limitation, the right to bring
claims against Grantee or Co -Grantee for any breach by Grantee or Co -Grantee of the
terms of this Easement.
9.11 Acts Beyond Grantor's Control. Nothing contained in this Easement shall be
construed to entitle Grantee or Co -Grantee to bring any action against Grantor to abate,
correct, or restore any condition on the Protected Property or to recover damages for
any injury to or change in the Protected Property resulting from actions by a trespasser
upon the Protected Property or causes beyond Grantor's control, including, without
limitation, natural disaster, fire, flood, storm, pest infestation, earth movement, and
climate change, and from any prudent action taken by Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to the Protected Property
resulting from such causes. In the event the terms of this Easement are violated by acts
of trespassers, and Grantor has not undertaken suit itself, Grantor agrees, at Grantee's
and Co -Grantee's option, to assign its right of action to Grantee and Co -Grantee, or to
appoint Grantee and Co -Grantee its attorneys in fact, for purposes of pursuing
enforcement action against the responsible parties.
9.12 Compliance Certificates. Upon request by Grantor, Grantee and Co -Grantee shall, as
soon as possible and no later than thirty (30) days after receipt of such request, execute
and deliver to Grantor any document, including an estoppel certificate, which certifies,
to the best of Grantee's and Co -Grantee's knowledge, Grantor's compliance or lack
thereof with any obligation of Grantor contained in this Easement and otherwise
evidences the status of this Easement as requested by Grantor. Such certification shall
be limited to the condition of the Protected Property as of Grantee's and Co -Grantee's
most recent inspection. If Grantor requests more current documentation, Grantee or
Co -Grantee shall conduct an inspection, at Grantor's expense, within forty-five (45)
days of receipt of Grantor's written request and payment therefor. Any Beneficiary to
this Easement shall not be estopped from claiming or enforcing a violation of this
Easement unless such Beneficiary has also executed the Compliance Certificate.
10 LIABILITIES, TAXES, AND ENVIRONMENTAL COMPLIANCE
10.1 Liabilities and Insurance. Grantor retains all responsibilities and shall bear all costs
and liabilities of any kind related to the ownership, operation, upkeep, and maintenance
of the Protected Property, including the maintenance of adequate liability insurance
coverage. Such insurance shall include Grantee's and Co -Grantee's interest, name
Grantee and Co -Grantee as an additional insured, and provide for at least thirty (30)
days notice to Grantee and Co -Grantee before cancellation and that the act or omission
of one insured will not invalidate the policy as to the other insured party. The Parties
release and relieve the other, and waive their entire right to recovery for loss or damage
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to the extent that the loss or damage is covered by the injured party's insurance. This
waiver applies whether or not the loss is due to the negligent acts or omissions of
Grantor, Grantee or Co -Grantee. Grantor remains solely responsible for obtaining any
applicable governmental permits and approval for any construction or other activity or
use permitted by this Easement, and all such construction or other activity or use shall
be undertaken in accordance with all applicable federal, state, and local laws,
regulations, and requirements. Grantor shall keep the Protected Property free of any
liens arising out of any work performed for, material furnished to, or obligations
incurred by Grantor; provided that the Protected Property shall be deemed to be free of
such liens if i) Grantor or Grantee, as the case may be, is diligently challenging the
application of such liens to the Protected Property; or ii) such liens are subordinated to
this Easement and do not require any action or inaction inconsistent with the Purpose
and terms of this Easement.
10.2 Taxes. Grantor shall pay before delinquency all taxes, assessments, fees, charges of
whatever description levied on or assessed against the Protected Property by competent
authority (collectively "taxes"), including any taxes imposed upon, or incurred as a
result of, this Easement, and shall furnish Grantee and Co -Grantee with satisfactory
evidence of payment upon request.
10.3 Liability. Grantor shall hold harmless, indemnify, and defend Grantee, Co -Grantee,
each Beneficiary to this Easement, and their members, directors, officers, employees,
agents, and contractors(collectively, "Indemnified Parties") from and against any and
all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims,
demands, or judgments, including, without limitation, reasonable attorneys' and
consultants' fees, arising from or in any way connected with injury to or the death of
any person, or physical damage to any property resulting from any act, omission,
condition, or other matter (including the release of hazardous or toxic substances)
related to or occurring on or about the Protected Property that is not a consequence of
any action or omission of any of the Indemnified Parties on or about the Protected
Property.
10.4 Representations and Warranties. Grantor represents and warrants that, to the best
of Grantor's knowledge:
10.4.1 Grantor and the Protected Property are in compliance with all federal, state, and
local laws, regulations, and requirements applicable to the Protected Property
and its use;
10.4.2 There has been no release, dumping, burying, abandonment or migration from
off-site on the Protected Property of any substances, materials, or wastes that are
or are designated as, hazardous, toxic, dangerous, or harmful or contain
components that are, or are designated as, hazardous, toxic, dangerous, or
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harmful and/or that are subject to regulation as hazardous, toxic, dangerous, or
harmful by any federal, state or local law, regulation, statute, or ordinance;
10.4.3 Neither Grantor nor Grantor's predecessors in interest have disposed of any
hazardous substances off-site, nor have they disposed of substances at sites
designated or proposed to be designated as federal Superfund (42 U.S.C. §9601
et seq.) or state Model Toxics Control Act (RCW §70.105D.010 et seq.)
("MTCA") sites; and
10.4.4 There is no pending or threatened litigation affecting the Protected Property or
any portion of the Protected Property that will materially impair the Agricultural
Conservation Values of any portion of the Protected Property. No civil or
criminal proceedings have been instigated or are pending against Grantor or its
predecessors by government agencies or third parties arising out of alleged
violations of environmental laws, and neither Grantor nor its predecessors in
interest have received any notices of violation, penalties, claims, demand letters,
or other notifications relating to a breach of environmental laws.
10.5 Remediation. If, at any time, there occurs, or has occurred, a Release in, on, or about
the Protected Property of a Hazardous Substance, Grantor agrees to take or compel
responsible third parties to take all steps required under applicable law and necessary
to assure its containment and remediation, including any cleanup that may be required
(except that the use of institutional controls shall not be allowed without Grantee's
consent), unless the Release was caused by Grantee, in which case Grantee shall be
responsible for such remediation to the extent the Release was caused by Grantee. At
its discretion, Grantee may assist Grantor in compelling third parties to contain and
remediate any such Release.
10.6 Environmental Warranty and Indemnification. Grantor warrants that it is in
compliance with, and will remain in compliance with, all applicable Environmental
Laws. Grantor warrants that there are no notices by any governmental authority of any
violation or alleged violation of, noncompliance or alleged noncompliance with or any
liability under any Environmental Law relating to the operations of conditions of the
Protected Property. Grantor further warrants that it has no actual knowledge of a
release or threatened release of Hazardous Materials, as such substances and wastes
are defined by applicable Federal and State law.
Moreover, Grantor hereby promises to hold harmless and indemnify NRCS, RCO and
the Grantees against all litigation, claims, demands, penalties, and damages, including
reasonable attorneys' fees, arising from or connected with the release or threatened
release of any Hazardous Materials on, at, beneath, or from the Protected Property, or
arising from or connected with a violation of any Environmental Laws by Grantor or
any other prior owner of the Protected Property. Grantor"s indemnification obligation
will not be affected by any authorizations provided by the Grantees, RCO or the United
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States to the Grantor with respect to the Protected Property or any restoration activities
carried out by Grantee at the Protected Property; provided, however, that the Grantees
are responsible for any Hazardous Materials contributed after this date to the Protected
Property by the Grantees.
The terms `Environmental Law" and `Environmental Laws" mean any and all Federal,
State, local, or municipal laws, rules, orders, regulations, statues, ordinances, codes,
guidelines, policies, or requirements of any governmental authority regulating or
imposing standards of liability or standards of conduct (including common law)
concerning air, water, solid waste, hazardous materials, worker and community right -
to -know, hazard communication, noise, radioactive materials, resource protection,
subdivision, inland wetlands and watercourses, health protection and similar
environmental health, safety, and building and land use as may now or at any time
hereafter be in effect.
The terms "Hazardous Materials" means any petroleum, petroleum products, fuel oil,
waste oils, explosives, reactive materials, ignitable materials, corrosive materials,
hazardous chemicals, hazardous wastes, hazardous substances, extremely hazardous
substances, toxic substances, toxic chemicals, radioactive materials, infectious
materials, and any other element, compound, mixture, solution or substance that may
pose a present or potential hazard to human health or the environment.
10.7 Control. Nothing in this Easement shall be construed as giving rise, in the absence of
a judicial decree, to any right or ability in Grantee, Co -Grantee or any Beneficiary to
this Easement to exercise physical or managerial control over the day-to-day operations
of the Protected Property, or any of Grantor's activities on the Protected Property, or
otherwise to become an operator with respect to the Protected Property within the
meaning of the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended ("CERCLA").
11 SUBSEQUENT TRANSFER OR EXTINGUISHMENT
11.1 Extinguishment.
11.1.1 If circumstances arise in the future that render the Purpose of this Easement
impossible to accomplish, this Easement can only be terminated or extinguished,
whether in whole or in part, by judicial proceedings in a court of competent
jurisdiction and with the permission of the United States.
11.1.2 The amount of the proceeds to which Grantee, Co -Grantee, and any Beneficiary
to this Easement shall be entitled, after the satisfaction of prior claims, from any
sale, exchange, or involuntary conversion of all or any portion of the Protected
Property subsequent to such termination or extinguishment, shall be determined,
unless otherwise provided by Washington law at the time, in accordance with
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Section 11.3. Grantee shall use all such proceeds for the acquisition of property
interests that are substantially equivalent to those conveyed by this Easement.
Grantee shall consult with and receive the approval of Co -Grantee, NRCS, and
RCO in the selection of any replacement property interests. Upon acquisition of
such replacement property interests, Grantee shall convey to Co -Grantee,
NRCS, and RCO the same or substantially equivalent rights as provided for in
this Easement.
11.1.3 In granting this Easement, Grantor has considered the fact that any use of the
Property that is prohibited by this Easement, or any other use as determined to
be inconsistent with the Purpose of this Easement, may become economically
more valuable than permitted uses. It is the intent of Grantor, Grantee, and Co -
Grantee that such circumstances shall not justify the termination or
extinguishment of this Easement. Grantor's inability to carry on any or all of the
permitted uses, or the unprofitability of doing so, shall not impair the validity of
this Easement or be considered grounds for its termination or extinguishment.
11.2 Condemnation. If the Easement is taken, in the whole or in the part, by the exercise
of the power of eminent domain, Grantee, Co -Grantee, NRCS, and RCO shall be
entitled to compensation in accordance with Section 11. 3, for the value of the Easement
taken; and the Grantor shall be entitled to compensation in accordance with applicable
law for the value of the underlying fee title and improvements taken. In the event that
Section 11.3. violates applicable law, then the proceeds to Grantor, Grantee, Co -
Grantee, NRCS, and RCO shall be divided in accordance with applicable law. In the
event that Grantee is the recipient of the proceeds from any condemnation, then
Grantee shall disburse to RCO and the United States their respective shares of the
proceeds pursuant to Section 11.4 as soon as is practicable.
11.3 Valuation
11.3.1 This Easement constitutes a real property interest immediately vested in Grantee
and Co -Grantee. For purposes of this Section, the Parties stipulate that this
Easement has a fair market value determined by multiplying (a) the then fair
market value of the Protected Property unencumbered by the Easement (minus
any increase in value attributable to improvements on the Protected Property),
at the time of termination or extinguishment, as determined by an appraisal that
meets RCO and the United States requirements for appraisals and is approved
by the United States of America, by (b) the ratio of the value of the Easement at
the time of this grant to the value of the Protected Property, unencumbered by
the Easement, at the time of this grant.
11.3.2 For purposes of this Section, the Parties agree that the ratio of the value of the
Easement to the value of Grantor's property unencumbered by the Easement is
evidenced by that certain real property appraisal prepared by Gregory Richards
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FINAL.;,,,,, 1, .1116/2020
with Richards & Associates, dated July 30, 2019, on file with Grantee. This ratio
is 0.59 and shall remain constant.
11.4 Distribution of Proceeds. In the event of extinguishment of this Easement pursuant
to Section 11. 1, condemnation of this Easement pursuant to Section 11.2, or damages
received by Grantee in an amount equal to the fair market value of this Easement
pursuant to Section 9.6 any proceeds attributable to the value of the Easement shall be
distributed as follows: NRCS is entitled to 40% and RCO is entitled to 50% and Co -
Grantee (or other source of acquisition funding for the Easement as applicable) is
entitled to the remaining 10% of any such proceeds.
11.5 Subsequent Transfers. Grantor agrees to: (1) incorporate by express reference the
terms of this Easement in any deed or other legal instrument by which it divests itself
of any interest in all or a portion of the Protected Property; and (2) describe this
Easement in and append it to, any executory contract for the transfer of any interest in
the Protected Property. Grantor ftuther agrees to give written notice to the Grantee and
Co -Grantee of the transfer of any interest at least thirty (30) days prior to the date of
such transfer. Such notice to Grantee and Co -Grantee shall include the name, address,
and telephone number of the prospective transferee or such transferee's representative.
The failure of the Grantor to perform any act required by this Section 11 shall not
impair the validity of this Easement or limit its enforceability in any way.
12 AMENDMENT
12.1 If circumstances arise under which an amendment to or modification of this Easement
would be appropriate, the Parties may jointly amend this Easement provided that the
Parties first obtain the written consent of each Beneficiary to this Easement. Any such
amendment shall be consistent with the Purpose of this Easement, shall not affect the
qualification of this Easement or the status of Grantee or Co -Grantee under any
applicable laws, shall not shorten the duration of this Easement, shall not amend the
area of the Protected Property covered by the Easement (unless it is expanded to cover
additional land without removing any land included in the Protected Property) and shall
be recorded in the official records of Kittitas County, Washington, and any other
jurisdiction in which such recording is required.
13 ASSIGNMENT
13.1 Assignment.
13.1.1 Grantee Interest. Grantee's interest in this Easement is transferable with prior
written notice to and consent of RCO and the United States, but Grantee may
assign its rights and obligations under this Easement only to an organization that
is a qualified holder at the time of transfer under RCW 64.04.130, as amended,
and a qualified recipient of grant funds from the farm and forest account under
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RCW 79A.15.130. Grantee shall not assign this Easement without notice to and
consent of Co -Grantee, RCO and the United States, which consent shall not be
unreasonably withheld. As conditions of such transfer, Grantee shall require that
assignee (a) continue to carry out the Purpose of this Easement and (b) comply
with the terms of the RCO and the United States Grant Agreement, as described
in Section 14. Grantee shall notify Grantor in writing, at Grantor's last known
address, in advance of such assignment. The assignment shall not be valid
without such notice; provided, however, that the failure of Grantee to give such
notice shall not impair the validity of this Easement or limit its enforceability in
any way.
13.1.2 Co -Grantee Interest. Co -Grantee's interest in this Easement is transferable, but
Co -Grantee may assign its rights and obligations under this Easement only to a
qualified organization with notice to and consent of Grantee, RCO and the
United States, which consent shall not be unreasonably withheld. As conditions
of such transfer, Co -Grantee shall require that assignee (a) continue to carry out
the Purpose of this Easement and (b) comply with the terms of the RCO and the
United States Grant Agreement, as described in Section 14. Co -Grantee shall
notify Grantor in writing, at Grantor's last known address, in advance of such
assignment. The assignment shall not be valid without such notice; provided,
however, that the failure of Co -Grantee to give such notice shall not impair the
validity of this Easement or limit its enforceability in any way.
13.2 Rights and Obligations Upon Transfer. A party's rights and obligations under this
Easement terminate upon transfer of the party's interest in the Protected Property or
this Easement, as the case may be, except that liability for acts or omissions occurring
prior to transfer shall survive transfer.
13.3 Succession. If at any time it becomes impossible for Grantee to ensure compliance
with the covenants contained herein and Grantee has not named a successor
organization, or the Grantee shall cease to exist, then Grantee's rights and duties
hereunder shall become vested and fall upon RCO, who may then assign, with the
United States' consent (which shall not be unreasonably withheld), Grantee's rights
and duties hereunder to an organization with a similar mission to that of Grantee.
14 RCO THIRD PARTY RIGHT OF ENFORCEMENT
14.1 RCO is hereby granted third party right of enforcement of this Easement. As such,
RCO may exercise all of the rights and remedies provided to Grantee and Co -Grantee
herein,and is entitled to all of the indemnifications provided to Grantee and Co -
Grantee in this Easement. RCO, Grantee, and Co -Grantee each have independent
authority to enforce the terms of this Easement; provided, however, that RCO and
Co -Grantee expect that Grantee shall have primary responsibility for monitoring and
enforcement of the Easement. In the event that RCO, Grantee, and/or Co -Grantee do
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not agree as to whether the Grantor is complying with the terms of the easement,
RCO or Grantee or Co -Grantee may jointly or individually proceed with enforcement
actions without the consent of any other. If RCO elects to enforce the terms of this
Easement, it shall first follow the dispute resolution process and remedies described
in Sections 8 and 9 above; provided, however, that RCO shall not be obligated to
repeat any non judicial dispute resolution steps already taken by Grantee or Co -
Grantee.
14.2 This third party right of enforcement does not extend to any other third party and will
automatically transfer to another State agency charged with maintaining, preserving
and/or restoring agricultural lands in the event RCO is dissolved or reorganized.
14.3 In the event that Grantee transfers or assigns this Easement without the consent of
RCO, which consent shall not be unreasonably withheld, RCO may require that
Grantee pay to RCO, at RCO's election, the higher of (i) an amount equal to the fair
market value of this Easement, which shall be determined as provided in Section 11.3
and distributed as provided in Section 11.4; or (ii) an amount equal to the Total
Project Cost as specified in the RCO Grant Agreement with interest due and payable
from the date of breach at the rate provided for in RCW 43.17.240, as may be
amended from time to time.
14.4 In the event that the Protected Property is used by Grantor in a manner that is not
consistent with the Purpose of this Easement or the terms of the RCO Grant
Agreement, RCO shall have the right, in addition to any other remedies described in
this Easement, to require that Grantor pay to RCO, at RCO's election, the higher of
(i) an amount equal to the fair market value of this Easement, which shall be
determined as provided in Section 11.3 and distributed as provided in Section 11.4; or
(ii) an amount equal to the Total Project Cost as specified in the RCO Grant
Agreement with interest due and payable from the date of breach at the rate provided
for in RCW 43.17.240, as may be amended from time to time. Any costs, fees or
damages paid by Grantor for enforcement of this Easement or restoration of the
Conservation Values pursuant to Section 9 shall be deducted from this amount. RCO
agrees that it will follow the dispute resolution process and remedies described in
Sections 8 and 9 before exercising this right, unless legally compelled to do
otherwise. Any amounts due and owing RCO under this paragraph shall be due and
owing within 120 days of receiving a written demand for repayment by RCO. Upon
Grantor's repayment of such amount to RCO, Grantee and RCO agree to prepare and
record a deed amendment to release Grantor from any further obligations to RCO or
Grantee under this Easement.
15 JOINT ENFORCEMENT
15.1 Before Grantee , Co -Grantee, or any Beneficiary to this Easement exercises its rights
to undertake mediation, arbitration or legal action as provided for in Sections 8 and 9,
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FINAL DRAFT 1116/2020
the party contemplating such action agrees to confer with the other parties holding
enforcement rights under this Easement as to whether they will join the mediation,
arbitration or legal action and share costs and expenses related to such action;
provided, however, that this agreement to confer shall not be construed as a limitation
on the ability of Grantee, Co -Grantee, or any Beneficiary to this Easement to
exercise its enforcement and other rights under this Easement. If Grantee, Co -
Grantee, RCO, and/or the United States decide(s) to join in the action and share costs
and expenses related to the action, the parties joining in the action and sharing costs
and expenses related to the action shall apply any recovery to reimburse such parties
for their costs and expenses; provided, however, that any amount received based on
loss of value to the easement, or resulting from condemnation and/or extinguishment
of the Easement, shall be shared equally by Grantee, Co -Grantee, RCO and the
United States only after reimbursing such parties for their costs and expenses.
15.2 If Grantee, Co -Grantee, or any Beneficiary to this Easement chooses not to
undertake mediation, arbitration or legal action as provided for in Sections 8 and 9,
and/or share costs and expenses related to such action, such party shall not be entitled
to any recovery for enforcement costs; provided, however, that any amount received
based on loss of value to the easement, or resulting from condemnation and/or
extinguishment of the Easement, shall be distributed in accordance with Section 11.4
only after first reimbursing any party for its costs and expenses that are not otherwise
separately paid as part of any arbitration award or judgment.
16 RECORDATION
Grantee shall record this instrument in a timely fashion in the official records of Kittitas
County, Washington, and in any other appropriate jurisdictions, and may re-record it at
any time as may be required to preserve its rights in this Easement.
17 NO MERGER
In the event that Grantee or Co -Grantee acquires all or a portion of the fee title to the
Protected Property, it is the intent of the Parties that no merger of title shall take place
that would merge the restrictions of this Easement with fee title to the Protected Property
and thereby eliminate them, and that the restrictions on the use of the Protected Property,
as embodied in the Easement, shall, in the event that all or a portion of title become
vested in Grantee or Co -Grantee, become and remain permanent and perpetual
restrictions on the use of the Protected Property. Grantee and Co -Grantee covenant to
do what is required to prevent merger of title, including, if necessary, assignment of the
Easement to an appropriate third party pursuant to Section 13.1.
18 GENERAL PROVISIONS
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FINAL DRAFT 1/1612 02 0
18.1 Effective Date. The Effective Date of this Easement shall be the date on which the
Grantor executed this Easement.
18.2 Governing Law and Venue. The laws of the State of Washington and applicable
federal law shall govern the interpretation and performance of this Easement. By
executing this Easement, Grantor acknowledges the jurisdiction of the courts of the
State of Washington in this matter. In the event of a lawsuit involving this Easement,
venue shall be proper only in Kittitas County.
18.3 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. If any provision in this instrument is found to be
ambiguous, an interpretation consistent with the Purpose of this Easement that would
render the provision valid shall be favored over any interpretation that would render it
invalid.
18.4 Severability.
18.4.1 Except as provided in Section 18.4.2 below, if any provision of this Easement,
or the application thereof to any person or circumstance, is found to be invalid
or unenforceable by any court of competent jurisdiction or is superseded by state
or federal legislation, rules, regulations or decision, the remainder of the
provisions of this Easement, or the application of such provision to persons or
circumstances other than those as to which it is found to be invalid or
unenforceable, as the case may be, shall not be affected thereby.
18.4.2 If any material provision of this Easement, or the application thereof to any
person or circumstance, is found to be invalid or unenforceable by any court of
competent jurisdiction or is superseded by state or federal legislation, rules,
regulations or decision, so that the intent of these provisions is frustrated, the
parties agree to immediately negotiate a replacement provision to fulfill the
intent of the superseded provisions consistent with the Purpose of this Easement
and applicable law.
18.5 Entire Agreement. This instrument sets forth the entire agreement of the Parties
with respect to the Easement and supersedes all prior discussions, negotiations,
understandings, or agreements relating to the Easement, all of which are merged
herein. No alteration or variation of this instrument shall be valid or binding unless
contained in an amendment that complies with Section 12.
18.6 No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of
Grantor's title in any respect.
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18.7 "Grantor" - "Grantee" — "Co -Grantee". The terms "Grantor," "Grantee," and
"Co -Grantee," wherever used in this instrument, and any pronouns used in the place
thereof, shall be held to mean and include, respectively the above-named Grantor and
its successors and assigns, the above-named Grantee and its successors and assigns,
and the above-named Co -Grantee and its successors and assigns. The term "Grantor"
shall also include any party taking ownership of the Protected Property, or any
portion thereof, subsequent to the foreclosure of any mortgage or deed of trust.
18.8 Successors. The covenants, terms, conditions, and restrictions of this Easement shall
be binding upon, and inure to the benefit of, the Parties and their respective
successors and assigns, and to any party taking ownership of the Protected Property,
or any portion thereof, subsequent to the foreclosure of any mortgage or deed of trust,
and shall continue as a servitude in perpetuity with the Protected Property.
18.9 Captions. The captions in this instrument have been inserted solely for convenience
and ease of reference and are not a part of this instrument and shall have no effect
upon construction or interpretation.
18.10Counterparts. The Parties may execute this instrument in two or more
counterparts, which shall, in the aggregate, be signed by both Parties; each
counterpart shall be deemed an original instrument as against any party who has
signed it. In the event of any disparity between the counterparts produced, the
recorded counterpart shall be controlling.
18.11Authority. The individuals signing below, if signing on behalf of any entity,
represent and warrant that they have the requisite authority to bind the entity on
whose behalf they are signing.
18.12Recitals. The Parties agree that the terms and recitals set forth in Section 1 (among
other terms of this Easement) are material to this Easement, and that each Party has
relied on the material nature of such terms and recitals in entering into this Easement.
Each term and recital set forth in Section 1 is fully incorporated into this Easement.
19 This Grand Deed of Agricultural Conservation Easement is acquired with funds provided,
in part, under the Agricultural Conservation Easement Program (ACEP). The EXHIBIT
F is attached hereto and incorporated herein by reference and will run with the land in
perpetuity. As required by 16 U.S.C. Section 3865 et seq. and 7 CFR Part 1468, and as a
condition of receiving ACEP funds, all present and future use of the Protected Property
identified in EXHIBIT A (legal description or survey) is and will remain subject to the
terms and conditions described in EXHIBIT Fentitled Minimum Deed Terms For The
Protection Of Agricultural Use that is appended to and made a part of this easement deed.
20 SCHEDULE OF EXHIBITS
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VI V il. I WAFT 1/16/20X)
Exhibit A Legal Description of Property Subject to Easement
Exhibit B Site Map of Property Subject to Easement
Exhibit C Building Envelopes
Exhibit D Water Rights
Exhibit E Permitted Exceptions
Exhibit F Minimum Deed Terms for the Protection of Agricultural Use
TO HAVE AND TO HOLD unto Grantee, Co -Grantee, their respective successors, and
assigns forever.
REMAINDER OF PAGE IS INTENTIONALLY BLANK; SIGNATURE PAGES FOLLOW
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IN WITNESS WHEREOF, the undersigned Grantor has executed this instrument this
day of , 2020.
Grantor:
Brent Minor and Mary Minor, husband and wife
Brent Minor Mary Minor
STATE OF WASHINGTON )
) ss.
COUNTY OF KITTITAS )
On this day of 2020, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally appeared
Brett Minor and Mary Minor who executed the within and foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of said
corporation for the uses and purposes therein mentioned, and on oath stated that he/she/they
(is/are) authorized to execute the said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
Dated:
(Use this space for notarial stamp/seal)
Printed Name
Notary Public in and for the State of Washington
Residing at
My commission expires
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FINAL DRAFT 1116/2020
Kittitas County does hereby accept the above Grant Deed of Agricultural Conservation
Easement.
Dated:
Co -Grantee:
By
Brett Wachsmith, Chairman Laura Osiadacz, Vice- Chairman
Cory Wright
Its: County Commissioners
STATE OF WASHINGTON )
) ss.
COUNTY OF KITTITAS )
On this day of , 2020 before me personally
appeared to me Brett Wachsmith, Laura Osiadacz and Cory Wright, known to be the duly
elected, qualified and acting County Commissioners of Kittitas County, Washington, who
executed the within and foregoing instrument and acknowledged said instrument to be the free
and voluntary act and deed of said County, for the uses and purposes therein mentioned, and
each on oath stated that they were authorized to execute said instrument by resolution of the
Board of County Commissioners of said county, and that the seal affixed is the official seal of
said County.
Given under my hand and official seal the day and year last above written.
Dated:
(Use this space for notarial stamp/seal)
Printed Name
Notary Public in and for the State of Washington
Residing at
My commission expires
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FINAL DRAFT I/16/2020
Forterra NW does hereby accept the above Grant Deed of Agricultural Conservation
Easement.
Dated:
Co -Grantee:
By
Its
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this day of 2020, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally appeared
Michelle Connor to me known to be the President & CEO of Forterra NW, the Washington
nonprofit corporation, that executed the within and foregoing instrument, and acknowledged
the said instrument to be the free and voluntary act and deed of said corporation for the uses
and purposes therein mentioned, and on oath stated that he/she is authorized to execute the
said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
DATED:
(Use this space for notarial stamp/seal)
Printed Name
Notary Public in and for the State of Washington
Residing at
My commission expires
No
FINAL DRAFT 1/16/2020
THE STATE OF WASHINGTON, BY AND THROUGH THE WASHINGTON
STATE RECREATION AND CONSERVATION OFFFICE, Third Party Beneficiary, does
hereby accept the above Grant Deed of Agricultural Conservation Easement.
Dated:
Its
Approved as to Form:
Assistant Attorney General Date
STATE OF WASHINGTON )
ss.
COUNTY OF )
On this day of 2020, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally appeared
to me known to be the of
, a , that
executed the within and foregoing instrument, and acknowledged the said instrument to be the
free and voluntary act and deed of said corporation for the uses and purposes therein
mentioned, and on oath stated that he/she is authorized to execute the said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year first above written.
Dated:
(Use this space for notarial stamp/seal)
Printed Name
Notary Public in and for the State of Washington
Residing at
My commission expires
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FINAL W, I 11/16/2020
ACCEPTANCE OF PROPERTY INTEREST BY THE NATURAL RESOURCES
CONSERVATION SERVICE ON BEHALF OF THE UNITED STATES OF
AMERICA
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. This property is the Hairpin
Ranch property, in Kittitas County WA, under agreement #N5319ALE00100132 with the
Forterra NW.
Authorized Signatory for the NRCS
STATE OF ! )
ss.
COUNTY OF )
On this day of 2020, before me, the undersigned, a Notary
Public in and for the State of _. 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 she/he is the State
Conservationist of the Natural Resources Conservation Service, United States Department of
Agriculture, is authorized to sign on behalf of the United States of America, and
acknowledged and accepted the rights conveyed by the within Conservation Easement Deed.
In witness whereof, I have hereunto set my hand and official seal the day and year first above
written.
Dated:
Printed Name
Notary Public in and for the State of
Residing at
My commission expires
(Use this space for notarial stamp/seal)
EXHIBIT A
Legal Description
TRACT 1:
Parcel 5 of that certain Survey as recorded May 9, 2007, in Book 34 of Surveys, pages 42 and 43,
under Auditor's File No. 200705090017, records of Kittitas County, Washington; being a portion
of the Southeast Quarter of Section 8, Township 18 North, Range 19 East, W.M, in the County of
Kittitas, State of Washington.
TRACT 2:
Parcels A, B, C and D of that certain Survey as recorded July 5, 2007, in Book 34 of Surveys,
pages 78 and 79, under Auditor's File No. 200707050010, records of Kittitas County, Washington;
being a portion of the Southwest Quarter of Section 9, Township 18 North, Range 19 East, W.M.,
in the County of Kittitas, State of Washington.
TRACT 3:
Parcels S1, S2, S3, S4 and S5 of that certain Survey as recorded July 10, 2007, in Book 34 of
Surveys, pages 82 and 83, under Auditor's File No. 200707100002, records of Kittitas County,
Washington; being a portion of the Southwest Quarter of Section 9, Township 18 North, Range 19
East, W.M., in the County of Kittitas, State of Washington.
TRACT 4:
Parcels 1W, 3W, 4W, 5W, 6W, 7W and 8W of that certain Survey as recorded July 11, 2007, in
Book 34 of Surveys, pages 89 and 90, under Auditor's File No. 200707110035, records of Kittitas
County, Washington, being a portion of the West Half of Section 9, Township 18 North, Range
19 East, W.M., in the County of Kittitas, State of Washington.
TRACT 5:
Parcels 1E,2E, 3E, 4E, 5E, 6E, and 7E of that certain Survey as recorded July 12, 2007, in Book
34 of Surveys, pages 93 and 94, under Auditor's File No. 200707120013, records of Kittitas
County, Washington; being a portion of the West Half of Section 9, Township 18 North, Range
19 East, in the County of Kittitas, State of Washington.
TRACT 6:
Parcels 1, 2, 3, 4, 5, 6, 7, and 8 of that certain Survey as recorded July 13, 2007, in Book 34 of
Surveys, pages 95 and 96, under Auditor's File No. 200707130037, records of Kittitas County,
Washington; being a portion of the Southwest Quarter of Section 9, Township 18 North, Range 19
East, W.M., in the County of Kittitas, State of Washington.
TRACT 7:
Parcels A, B, C, D and E of that certain Survey as recorded July 25, 2007, in Book 34 of
Surveys, pages 106 and 107, under Auditor's File No. 200707250023, records of Kittitas County,
Exhibit A
FINAL DRAFT 1/16/2020
Washington; being a portion of the West Half of Section 9, Township 18 North, Range 19 East,
W.M., in the County of Kittitas, State of Washington.
Parcel Number:
Abbreviated Legal: Being a ptn of Sec 5, Twp 18N, Rge 19E, W.M.
Purported Address:
8001 Naneum Road
Ellensburg, Washington 98926
Exhibit A
EXHIBIT B
Property Subject to Conservation Easement
953195
194234
931036 953203
953202 953204
953196 953205 14796
953197
— 953218 953219
953198 953199
953221 953220
953201 853200
1 804p 953222 1 953223
953189 +953224
953208 953209 1953210
953225 I`953190953192 953212 953213 953214
953191
Property Subject to Conservation Easement
L i i Parcel Potentially Separately Conveyable
F-71 Other Parcels
Property and tax parcel boundaries courtesy of
Kittitas County GIS data published January 2019.
Exhibit B
N
Map produced by FORTERRA
August26, 2019
Feet
0 500 1,000
S
FINAL DRAFT 1/16/2020
EXHIBIT C
Building Envelopes
Building Envelope Boundary Public Road
Property Subject to Conservation Easement rN-o Stream, Canal or Ditch
Subject Tax Boundary Lake or Pond
Property and tax parcel boundaries courtesy of
Kft tas County GIS data published January 2019.
Exhibit C
r
Map producer/ by FORTERRA N
December 16, 2019 A
Feet
0 500 1,000 g
FINAL DRAFT 1/1612020
EXHIBIT D
Dedicated Water Rights
Kittitas Reclamation District (KRD):
5 -acre feet per year over 198 acres for a total of 990 acre feet per year for irrigation.
All of the KRD water for irrigation shall run with the Protected Property under the Easement.
June 30, 1882 Certificate:
Naneum Creek irrigation of 115 acres and stock water claim 00484 (A) 004498
April 1 through October 15th
2.3 cubic feet per second in May and June. 1.20 cubic feet per second in April and July 1 through
October 15th 575 -acre feet per year for irrigation and 4 -acre feet per year for stock watering
Only the first 372 acre feet per year for irrigation under this Certificate shall run with the
Protected Property under the Easement.
Exhibit D
EXHIBIT E
Permitted Exceptions
Exhibit E
FINAL DRAFT 1/16/2020
EXHIBIT F
MINIMUM TERMS FOR AGRICULTURAL LAND EASEMENTS
The Agricultural Conservation Easement Program, 16 U.S.C. Section 3865 et seq., facilitated
and provided funding for the purchase of an Agricultural Land Easement ("ALE"), as described
in this Grant Deed of Agricultural Conservation Easement ("ALE Deed"), on real property
described in Exhibit A, hereafter referred to as "the Protected Property." As used herein,
references to the "ALE Deed" include this Exhibit, except where explicitly stated otherwise.
Brett Minor and Mary Minor (collectively "Grantor"), Kittitas County and Forterra NW
(collectively "Grantee"), the State of Washington, by and through the Washington State
Recreation and Conservation Office (RCO), and the United States of America (the "United
States"), acting by and through the United States Department of Agriculture Natural Resources
Conservation Service (NRCS) on behalf of the Commodity Credit Corporation (jointly referred
to as the "Parties") acknowledge that the ALE is acquired by the Grantee for the purpose of:
protecting the agricultural use and future viability, and related conservation values, by
limiting nonagricultural uses that negatively affect the agricultural uses and conservation values
of the Protected Property (the "Purpose of the ALE').
Baseline conditions of the Protected Property are set forth in a Baseline Documentation Report, a
copy of which is maintained in the files of the Grantee.
In order to ensure compliance with the Agricultural Conservation Easement Program, 16 U.S.C.
Section 3865 et seq. and 7 CFR Part 1468, the following rule of interpretation will govern any
and all inconsistencies between this Exhibit and those portions of the ALE Deed other than this
Exhibit. Notwithstanding any other provision of the ALE Deed, the Parties agree that all present
and future use of the Protected Property is and will remain subject to all of the terms and
conditions identified in the following Sections I and II. If the terms and conditions in Sections I
and II are inconsistent with terms and conditions in other portions of the ALE Deed, Sections I
and II will control; provided, however, that if other portions of the ALE Deed have terms and
conditions that are consistent with, but more restrictive to the rights of the Grantor than the terms
and conditions in Section I, Paragraphs 1, 2, and 4, those more restrictive terms and conditions
will control. If other portions of the ALE Deed are more restrictive to the rights of the Grantor
than Section I Paragraph 3 and 5 and Section II then Section I Paragraph 3 and 5 and Section II
will control.
SECTION I - MINIMUM CONSERVATION DEED RESTRICTIONS
Even if the Protected Property consists of more than one parcel for real estate tax or any other
purpose or if it was acquired previously as separate parcels, it will be considered one parcel for
purposes of this ALE, and the restrictions and covenants of this ALE Deed will apply to the
Protected Property as a whole.
Exhibit F
FINAL DRAFT 1/1612020
The terms and conditions of the ALE Deed run with the land and are binding upon the Grantor and
Grantee and their respective heirs, successors, agents, assigns, lessees, and any other person
claiming under them, any and all of whom must comply with all terms and conditions of this ALE
Deed, including the following:
1. Limitation on Impervious Surfaces. Impervious surfaces will not exceed 2% of the
Protected Property, excluding NRCS-approved conservation practices. Impervious surfaces are
defined as material that does not allow water to percolate into the soil on the Protected Property,
including, but not limited to, buildings with or without flooring, paved areas, and any other
surfaces that are covered by asphalt, concrete, or roofs. This limitation does not include public
roads or other roads owned and controlled by parties with rights superior to those rights conveyed
to Grantee by this ALE Deed.
2. Limitations on Nonagricultural Uses. Any activities inconsistent with the Purpose of the
ALE are prohibited. The following activities are inconsistent with the Purpose of the ALE and are
specifically prohibited, subject to the qualifications stated below:
(A) Subdivision — The Protected Property shall not be further divided or subdivided, and
shall not be separately conveyed as more than three (3) separate parcels (three (3) divisions
allowed), the boundaries and the allocation of the impervious surface limitation for which
have been identified in Exhibit B, which is appended to and made a part of this ALE Deed.
To protect the Purpose of the ALE, the boundaries of such divisions have been preapproved
in writing by Grantee and the Chief of NRCS or the Chief's authorized designee (Chief of
NRCS). Deviations from the identified boundaries will not be allowed. Grantor must give
Grantee and the Chief of NRCS written notice prior to separately conveying a parcel of the
Protected Property.
(B) Industrial or Commercial Uses — Industrial or commercial activities on the Protected
Property are prohibited except for the following:
(i) Agricultural production and related uses in accordance with the terms and
conditions of this ALE Deed;
(ii) The sale of excess power generated in the operation of renewable energy
structures and associated equipment or other energy structures that Grantee
approves in writing as being consistent with the Purpose of the ALE and in
accordance with the terms and conditions of this ALE Deed;
(iii) Temporary or seasonal outdoor activities or events that do not harm the Purpose
of the ALE; and
(iv) Commercial enterprises related to agriculture or forestry.
(C) Construction on the Protected Property — All new structures and improvements must
be located within the Building Envelope(s), containing approximately twenty (20) acres
Exhibit F
!.V F 1. DRAFT 1/16/2020
and described or shown in Exhibit C, which is appended to and made a part of the ALE
deed.
Agricultural structures and utilities to serve approved buildings or structures, including on-
farm energy structures allowed under Section I, Paragraph 2(B)(ii) and Section I,
Paragraph 3(C) that neither individually nor collectively have an adverse impact on the
Purpose of the ALE, may be built outside of the Building Envelopes with prior written
approval of the Grantee.
New roads may be constructed if they are approved in advance by Grantee, within
impervious surface limits, and are necessary to carry out the agricultural operations or other
allowed uses on the Protected Property.
Maintenance of existing roads documented on the Baseline Documentation Report is
allowed; however, existing roads may not be widened or improved unless widening and
improving is within impervious surface limits, approved in advance by Grantee, and
necessary to carry out the agricultural operations or other allowed uses on the Protected
Property.
Fences may be maintained and replaced, and new fences installed if they are necessary for
agricultural operations or other allowed uses on the Protected Property or to mark
boundaries of the Protected Property. Maintenance, replacement, and installation of fences
must be conducted in a manner consistent with the Purpose of the ALE.
(D) Granting of Easements for Utilities and Roads — The granting or modification of
easements for utilities and roads is prohibited when the utility or road will adversely impact
the Purpose of the ALE as determined by the Grantee in consultation with the Chief of
NRCS.
(E) Surface Alteration — Grading, blasting, filling, sod farming, earth removal, or any other
activity that will disturb the soil surface or materially alter the topography, surface or
subsurface water systems, or wetlands of the Protected Property is prohibited, except for
the following:
(i) Dam construction pursuant to a plan approved by the Grantee to create ponds
for agricultural use, fire protection, or wildlife enhancement, including
enhancement through wetland restoration, enhancement, or creation;
(ii) Erosion and sediment control pursuant to a plan approved by the Grantee;
(iii) Soil disturbance activities required in the construction of approved buildings,
structures, roads, and utilities provided that the required alteration has been
approved in writing by Grantee as being consistent with the Purpose of the ALE;
and
Exhibit F
FINAL DRAFT 1/16/2020
(iv) Agricultural activities and related conservation activities conducted in
accordance with the terms and conditions of this ALE Deed.
(F) Surface and Subsurface Mineral Exploration and Extraction — Mining or extraction of
soil, sand, gravel, oil, natural gas, fuel, coal, or any other mineral substance owned by
Grantor as of the date of this ALE Deed or later acquired by Grantor, using any surface
mining, subsurface mining, or dredging method, from the Protected Property is prohibited
except as otherwise provided in this Paragraph F. If a third party owns or leases the oil,
natural gas, or any other mineral rights associated with the Protected Property at the time
this ALE Deed is executed, and their interests have not been subordinated to this ALE, the
Grantor must require, to the greatest extent possible, that any oil, natural gas, and mineral
exploration and extraction conducted by such third party is conducted in accordance with
this Paragraph (F). Any mineral leases or other conveyances of minerals entered into or
renewed after the date of this ALE Deed are subordinate to the terms of this ALE Deed and
must incorporate by reference this ALE Deed. Limited mining activities for materials (e.g.,
sand, gravel, or shale) used to facilitate the agricultural operations on the Protected
Property are allowed where the extraction of such materials is limited, localized, and occurs
only within a single one -half -area of the Protected Property.
3. Preserving Agricultural Uses. The provisions of this ALE Deed and associated exhibits will
not be interpreted to restrict the types of agricultural operations that can function on the Protected
Property, so long as the agricultural operations are consistent with the long-term viability of the
Protected Property and the Purpose of the ALE. No uses will be allowed that violate Federal laws,
including Federal drug laws, or that decrease the ALE's protection for the Purpose of the ALE.
Allowed uses of the Protected Property include the specific uses allowed in Section I, Paragraph
(2)(B)(i)-(v) and the following activities, subject to the qualifications stated below:
(A) Agricultural Production — The production, processing, and marketing of livestock and
agricultural products compatible with the Purpose of the ALE are allowed provided these
activities are conducted in a manner consistent with the terms of the ALE deed.
(B) Forest Management and Timber Harvest — Forest management and timber harvesting
are allowed, provided these activities are carried out, to the extent practicable, in
accordance with current, generally accepted best management practices for the sites, soils,
and terrain of the Protected Property.
(C) On -Farm Energy Production — Renewable energy production is allowed for the
purpose of generating energy for the agricultural and residential needs of the Protected
Property. Renewable energy sources must be built and maintained within impervious
surface limits and consistent with the Purpose of the ALE.
SECTION II - PROTECTION OF THE UNITED STATES'S INTERESTS
Exhibit F
1. 1)R?1T"7'1/16/2020
1. United States Right of Enforcement. Pursuant to 16 U.S.C. Section 3865 et seq., the
United States is granted the right of enforcement that it may exercise only if the terms of the ALE
Deed are not enforced by the Grantee. The Secretary of the United States Department of
Agriculture (the "Secretary") or the Secretary's assigns, on behalf of the United States, may
exercise this right of enforcement under any authority available under State or Federal law if the
Grantee, or its successors or assigns, fails to enforce any of the terms of this ALE Deed, as
determined in the sole discretion of the Secretary.
In the event the United States exercises this right of enforcement, it is entitled to recover any and
all administrative and legal costs associated with any enforcement or remedial action related to the
enforcement of this ALE Deed from the Grantor, including, but not limited to, attorney's fees and
expenses related to Grantor's violations. In the event the United States exercises this right of
enforcement, it is entitled to recover any and all administrative and legal costs associated with any
enforcement of this ALE Deed from the Grantee, including, but not limited to, attorney's fees and
expenses related to Grantee's violations or failure to enforce the ALE Deed against the Grantor,
up to the amount of the United States's contribution to the purchase of the ALE.
The Grantee will annually monitor compliance and provide the United States with an annual
monitoring report that documents that the Grantee and Grantor are in compliance with the ALE
Deed. If the annual monitoring report is insufficient or is not provided annually, or if the United
States has a reasonable and articulable belief of an unaddressed violation, as determined by the
Secretary, the United States may exercise its right of inspection. For purposes of inspection and
enforcement of the ALE Deed and the United States ALE Agreement with the Grantee, the United
States will have reasonable access to the Protected Property. Prior to its inspection of the Protected
Property, the United States shall provide advance notice to Grantee and Grantor and provide
Grantee and Grantor a reasonable opportunity to participate in the inspection.
In the event of an emergency, the United States may enter the Protected Property to prevent,
terminate, or mitigate a potential or unaddressed violation of the ALE Deed and will give notice
to Grantee and Grantor at the earliest practicable time.
2. General Disclaimer and Grantor Warranty. The United States, its employees, agents,
and assigns disclaim and will not be held responsible for Grantee's or Grantor's negligent acts or
omissions or Grantee's or Grantor's breach of any representation, warranty, covenant, or
agreements contained in this ALE Deed, or violations of any Federal, State, or local laws, including
all Environmental Laws (defined below) including, without limitation, those that give rise to
liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties, suits, proceedings,
actions, costs of actions, or sanctions asserted by or on behalf of any person or governmental
authority, and other liabilities (whether legal or equitable in nature and including, without
limitation, court costs, and reasonable attorneys' fees and attorneys' fees on appeal) to which the
United States may be subject or incur relating to the Protected Property.
Grantor must indemnify and hold harmless the United States, its employees, agents, and assigns
for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties, suits,
proceedings, actions and costs of actions, sanctions asserted by or on behalf of any person or
Exhibit F
FINAL 1)R IFI 1/16/2020
governmental authority, and other liabilities (whether legal or equitable in nature and including,
without limitation, court costs, and reasonable attorneys' fees and attorneys' fees on appeal) to
which United States may be subject or incur relating to the Protected Property, which may arise
from, but are not limited to, Grantor's negligent acts, omissions, or breach of any representation,
warranty, covenant, agreements contained in this ALE Deed or violations of any Federal, State, or
local laws, including all Environmental Laws (defined below).
3. Environmental Warranty.
As used herein, "Environmental Law" or `Environmental Laws" means any and all Federal, State,
local or municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies,
or requirements of any governmental authority regulating or imposing standards of liability or
standards of conduct (including common law) concerning air, water, solid waste, hazardous
materials, worker and community right -to -know, hazard communication, noise, radioactive
material, resource protection, subdivision, inland wetlands and watercourses, health protection,
and similar environmental health, safety, building, and land use as may now or at any time
hereafter be in effect.
As used herein, "Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste
oils, explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals,
hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic
chemicals, radioactive materials, infectious materials, and any other element, compound, mixture,
solution, or substance that may pose a present or potential hazard to human health or the
environment.
Grantor warrants that it is in compliance with, and will remain in compliance with, all applicable
Environmental Laws. Grantor warrants that there are no notices by any governmental authority of
any violation or alleged violation of, noncompliance or alleged noncompliance with, or any
liability under, any Environmental Law relating to the operations or conditions of the Protected
Property. Grantor further warrants that it has no actual knowledge of an undisclosed release or
threatened release of Hazardous Materials, as such substances and wastes are defined by applicable
Federal and State law.
Furthermore, Grantor warrants the information disclosed to Grantee and United States regarding
any past violations or noncompliance with Environmental Laws and associated remedial actions,
or any past releases of Hazardous Materials and any associated remedial actions is complete and
accurate.
Moreover, Grantor hereby promises to hold harmless and indemnify Grantee and the United States
against all litigation, claims, demands, penalties and damages, including reasonable attorneys'
fees, arising from or connected with the release or threatened release of any hazardous materials
on, at, beneath or from the Protected Property, or arising from or connected with a violation of any
Environmental Laws by Grantor or any other prior owner of the Protected Property. Grantor's
indemnification obligation will not be affected by any authorizations provided by Grantee or the
United States to Grantor with respect to the Protected Property or any restoration activities carried
Exhibit F
FINAL 1) i i / 1/1612020
out by Grantee on the Protected Property; provided, however, that Grantee will be responsible for
any Hazardous Materials contributed after this date to the Protected Property by Grantee. -
4. Extinguishment, Termination, and Condemnation. The interests and rights under this
ALE Deed may only be extinguished or terminated with written approval of the Grantee and the
United States. Due to the Federal interest in this ALE, any proposed extinguishment, termination,
or condemnation action that may affect the United States's interest in the Protected Property must
be reviewed and approved by the United States.
With respect to a proposed extinguishment, termination, or condemnation action, the Grantee and
the United States stipulate that the fair market value of the ALE is 59.33 percent, hereinafter the
"Proportionate Share," of the fair market value of the land unencumbered by this ALE. The
Proportionate Share will remain constant over time.
If this ALE is extinguished, terminated, or condemned, in whole or in part, then the Grantor must
reimburse Grantee and the United States an amount equal to the Proportionate Share of the fair
market value of the land unencumbered by this ALE. The fair market value will be determined at
the time all or a part of this ALE is terminated, extinguished, or condemned by an appraisal that
meets the Uniform Standards of Professional Appraisal Practice (USPAP) or Uniform Acquisition
Standards or Federal Land Acquisition (UASFLA). The appraisal must be completed by a certified
general appraiser and be approved by the Grantee and the United States.
The allocation of the Proportionate Share between the Grantee and the United States will be as
follows: (a) to the Grantee or its designee, percent of the Proportionate Share; and
(b) to the United States percent of the Proportionate Share. Until such time as the
Grantee and the United States receive the Proportionate Share from the Grantor or the -Grantor's
successor or assign, the Grantee and the United States each have a lien against the Protected
Property for the amount of the Proportionate Share due each of them. If proceeds from termination,
extinguishment, or condemnation are paid directly to Grantee, the Grantee must reimburse the
United States for the amount of the Proportionate Share due to the United States.
5. Amendment. This ALE Deed may be amended only if, in the sole and exclusive judgment of
the Grantee and United States, by and through the Chief of NRCS, such amendment is consistent
with the Purpose of the ALE and complies with all applicable laws and regulations. The Grantee
must provide timely written notice to the Chief of NRCS of any proposed amendments. Prior to
the signing and recordation of the amended ALE Deed, such amendments must be mutually agreed
upon by the Grantee, Grantor, and United States, by and through the Chief of NRCS. Any
purported amendment that is recorded without the prior approval of the United States is null and
void.
Exhibit F
MINIMUM TERMS FOR AGRICULTURAL LAND EASEMENTS
EXHIBIT A
Legal Description
TRACT 1:
Parcel 5 of that certain Survey as recorded May 9, 2007, in Book 34 of Surveys, pages 42 and 43,
under Auditor's File No. 200705090017, records of Kittitas County, Washington; being a portion
of the Southeast Quarter of Section 8, Township 18 North, Range 19 East, W.M, in the County of
Kittitas, State of Washington.
TRACT 2:
Parcels A, B, C and D of that certain Survey as recorded July 5, 2007, in Book 34 of Surveys,
pages 78 and 79, under Auditor's File No. 200707050010, records of Kittitas County, Washington;
being a portion of the Southwest Quarter of Section 9, Township 18 North, Range 19 East, W.M.,
in the County of Kittitas, State of Washington.
TRACT 3:
Parcels S1, S2, S3, S4 and S5 of that certain Survey as recorded July 10, 2007, in Book 34 of
Surveys, pages 82 and 83, under Auditor's File No. 200707100002, records of Kittitas County,
Washington; being a portion of the Southwest Quarter of Section 9, Township 18 North, Range 19
East, W.M., in the County of Kittitas, State of Washington.
TRACT 4:
Parcels 1W, 3W, 4W, 5W, 6W, 7W and 8W of that certain Survey as recorded July 11, 2007, in
Book 34 of Surveys, pages 89 and 90, under Auditor's File No. 200707110035, records of Kittitas
County, Washington, being a portion of the West Half of Section 9, Township 18 North, Range
19 East, W.M., in the County of Kittitas, State of Washington.
TRACT 5:
Parcels lE,2E, 3E, 4E, 5E, 6E, and 7E of that certain Survey as recorded July 12, 2007, in Book
34 of Surveys, pages 93 and 94, under Auditor's File No. 200707120013, records of Kittitas
County, Washington; being a portion of the West Half of Section 9, Township 18 North, Range
19 East, in the County of Kittitas, State of Washington.
TRACT 6:
Parcels 1, 2, 3, 4, 5, 6, 7, and 8 of that certain Survey as recorded July 13, 2007, in Book 34 of
Surveys, pages 95 and 96, under Auditor's File No. 200707130037, records of Kittitas County,
Washington; being a portion of the Southwest Quarter of Section 9, Township 18 North, Range 19
East, W.M., in the County of Kittitas, State of Washington.
Minimum Terms for ALE - Exhibit A
TRACT 7:
Parcels A, B, C, D and E of that certain Survey as recorded July 25, 2007, in Book 34 of
Surveys, pages 106 and 107, under Auditor's File No. 200707250023, records of Kittitas County,
Washington; being a portion of the West Half of Section 9, Township 18 North, Range 19 East,
W.M., in the County of Kittitas, State of Washington.
Parcel Number:
Abbreviated Legal: Being a ptn of Sec 5, Twp 18N, Rge 19E, W.M.
Purported Address:
8001 Naneum Road
Ellensburg, Washington 98926
Minimum Terms for ALE — Exhibit A
MINIMUM TERMS FOR AGRICULTURAL LAND EASEMENTS
EXHIBIT B
Impervious Surfaces
Minimum Terms for ALE — Exhibit B
MINIMUM TERMS FOR AGRICULTURAL LAND EASEMENTS
EXHIBIT C
Building Envelopes
Envelope A
14.5 acres
.................
i
CV
W Envelope B
5.5 acres :
- Z .........
rr'
.,y.� Building Envelope Boundary Public Road ,wap pratlucad by FORTERRA N
Property Subject to Conservation Easement Stream, Canal or Ditch December 16, 2019
subject Tax Boundary Lake or Pond
Property and tax parcel boundaries courtesy of Feet
Kittites County GIS data published January 2019. 0 500 1,000 s
Minimum Terms for ALE — Exhibit C