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HomeMy WebLinkAboutTD-26-00001 Solar Dolar LLC- TDR Conservation EasementAFTER RECORDING RETURN TO: Kittitas County Community Development Services 411 North Ruby, Suite 2 Ellensburg, Washington 98926 DEED OF TRANSFER OF DEVELOPMENT RIGHTS CONSERVATION EASEMENT (Kittitas County Transfer of Development Rights Program) Grantor: Solar Dolar LLC with an address of 1410 W Dolarway Road Suite 301 Ellensburg, WA 98926 Grantee: Kittitas County Legal Abbreviated Description: The west half of the northwest quarter of the southwest quarter of Section 2, Township 17 north, Range 18 east, W.M., in the county of Kittitas, State of Washington. Assessor's Property Tax Parcel Account Number: 016833 Transfer of Development Rights Sending Site Certificate Numbers: 26-0001, 26-0002, 26-0003, 26-0004, 26- 0005, 26-0006, 26-0007, 26-0008, 26-0009, 26-0010, 26-0011, 26-0012, 26-0013, and 26-0014 THIS TRANSFER OF DEVELOPMENT RIGHTS CONSERVATION EASEMENT is made and entered into this day of , 20 . (“TDRE”) is made by Grantor in favor of Kittitas County (“Grantee”) (collectively, the “Parties”). Section 1. Recitals. WHEREAS, Grantor is the sole owner in fee simple of certain real property located in Kittitas County, Washington (the “County”), more particularly described in Exhibit A which exhibit is attached hereto and incorporated herein by this reference (the “Property”). WHEREAS, Grantor, as owner of the Property, has the right to identify and transfer the residential development rights of the Property pursuant to KCC 17.13. WHEREAS, chapter 17.13 of the Kittitas County Code (the “TDR Program”) authorizes the transfer of residential development rights from “sending sites”, as they are defined in KCC 17.13. 015(2), which permanently removes the residential development rights in those q ualifying areas as listed in the TDR Program including but not limited to farmland, forest land, frequently flooded lands, and land containing identified Critical Areas as provided for in Kittitas County Code Chapter 17A. WHEREAS, the residential development rights upon county approval and properly extinguished from a designated sending site become Transfer of Development Rights Density Credits (“TDR Density Credits”), as they are defined in KCC 17.13.015(7), and then can be applied, pursuant to the TDR Program, to eligible “receiving sites” as they are defined in KCC 17.13.015(1). WHEREAS, Transfer of Development Rights Easement (“TDRE”) means an easement placed on the Sending Site that eliminates the possibility of residential development on said sending site, as further defined in KCC 17.13.015(8). WHEREAS, the purpose of the TDRE is to provide public benefits by permanently protecting various types of land from residential development including but not limited to rural farms, farm land, forest land, land identified as a critical area or frequently flooded area as identified in KCC 17A through the extinguishment of the residential development rights allowed on the Property, as proved for in KCC 17.13, with those lands being designated as "sending sites." All other rights of ownership, including the ri ght to continue to use or create new operations of such businesses as farming, timber harvesting, sports and recreation, and other uses permitted within the zone remain with the owner of the underlying fee title as provided for in KCC 17.13. WHEREAS, development rights that may be transferred from designated sending sites to eligible receiving sites shall be documented under the TDR Program in one or more TDR Density Credit certificates, a process which requires the recording of a TDR conservation easement encumbering the sending site property to indicate the extinguishment of the possibility of Residential Development on the property. WHEREAS, on January 30, 2026, Grantor submitted an application to designate the Property as a sending site as provided under Kittitas County Code (“KCC”) chapter 17.13, and to obtain TDR Density Credit(s) certificate(s) for transfer from the Property to eligible receiving sites. The TDR Application materials submitted by Grantor are on file with the County, in the Community Development Services Office under File No. TD-26- 00001 Solar Dolar LLC, and are incorporated herein by this reference as if set forth in full. Grantor represents that these application materials reflect existing conditions on the Property as of the date this Easement is executed. WHEREAS, the County has determined that the Property qualifies as a sending site under the TDR Program. The County has determined that the Property has a total of fourteen (14) TDR Density Credit(s) available to transfer from the Property to eligible receiving sites. WHEREAS, a TDR Density Credit Certificate Letter of Intent has been issued by Kittitas County, attached hereto as Exhibit B, to the Grantor for the Property stating that the Sending Site will provide fourteen (14) TDR Density Credit(s). WHEREAS, Grantor now desires to document the residential development limitations on the Property necessary securing the above identified TDR Credits by granting a Transfer of Development Rights Easement (“TDRE”) on the Property on the terms set forth herein; WHEREAS, Grantor and Grantee agree that the Residential Restrictions defined herein shall run with the land and bind the Property in perpetuity; WHEREAS, this easement may be modified as provided for in KCC 17.13.080 (4) and as further defined in this document. NOW, THEREFORE, in consideration of the foregoing recitals, which are hereby incorporated by reference, and the mutual covenants and agreements set forth herein, the parties agree as follows: Section 2. Conveyance, Consideration and Perpetual Duration 1. The foregoing recitals are hereby incorporated into and made a substantive part of this Agreement as if fully set forth herein. 2. This agreement establishes a Transfer of Development Rights Easement (“TDRE”), as provided for in KCC 17.13. over and on the Property. 3. In consideration of the mutual covenants, terms, conditions, and restrictions contained in this Transfer of Development Rights Easement (“TDRE”), Grantor hereby voluntarily grants, conveys and warrants to Grantee a TDRE, as provided for in KCC 17.13, on an d over the Property subject only to the terms and restrictions contained in this TDRE. 4. This TDRE is a conveyance of an interest in real property under the provisions of RCW 64.04.130. 5. Grantor expressly intends that this TDRE runs with the land and that this Easement be perpetually binding upon Grantor, Grantor’s successors and assigns unless terminated due to changed circumstances as provided in Section 8 herein. Section 3. Purpose. The purpose of this TDRE is to remove the possibly of residential development on qualifying farmland, forest land, land containing critical areas and/or frequently flooded areas, as provided for in KCC 17.13, by transferring residential development rights from those lands, designated as "sending sites," to other eligible locations, known as "receiving sites". This is achieved by acquiring and extinguishing the residential development rights on sending sites and converting them into TDR Density Credits. The program allows for the transfer of these credits to receiving sites to increase density beyond the underlying zoning limitations. Uses of the sending site(s) after extinguishment of the residential development rights are allowed pursuant to KCC 17.13 and the underlying zoning code. Section 4. Rights Conveyed to Grantee. To accomplish the Purpose, the following rights are provided to Grantee by this Easement: 1. The right to enter the Property at reasonable times in order to monitor Grantor’s compliance with and to enforce the terms of this Easement, provided that such entry shall be conducted with a minimum of 24 calendar-day written notice. Such visit shall not in any case unreasonably interfere with Grantor’s use and quiet enjoyment of the Property. No right of access by the general public to the Property is authorized by this Easement without the Grantor’s prior consent. 2. The right to enforce the terms of this Easement, as provided for in Section 7, including the right to require the restoration of the Property to its condition prior to any violation of the terms of this Easement. 3. No other rights are granted to Grantee other than those listed in Subsections 1. and 2. of this section. Section 5. Prohibited Uses and Activities. 1. Grantor is prohibited from engaging in or permitting any of the following uses or activities on the Property: 2. Grantor shall not use the Residential Development Rights now or hereafter associated with the Property for Residential Development as the Residential Development Rights are permanently removed and extinguished from the Property. 3. Grantor shall not undertake any division, subdivision or partitioning of the Property, whether by physical or legal process, which includes, but is not limited to, any subdivision, short subdivision, platting, binding site plan, administrative segregations, boundary line adjustments, intervening ownership, one-time lot split, or other process by which the Property is divided into lots or in which title to different portions of the Property are not held in unified ownership (“Land Division”), unless such Lan d Division allocates the Reserved Development Rights, if any, between the divided parcels of Property in a manner consistent with the terms of this Easement. This Easement shall continue to encumber all portions of the Property despite not being held in unified ownership. 4. Grantor shall not construct any Residential buildings, Residential dwellings, Residential structures, or other Residential improvements of any kind on the Property except as provided in Section 6. Section 6. Reserved Rights of Grantor. 1. As owner of the Property, Grantor, retains the right to perform any act consistent with applicable zoning existing as of the date of this easement, to the extent such act is not prohibited or limited under the terms of this Easement. These ownership rights include, but are not limited to, the right to continue operations, create new uses of such businesses as farming, timber harvesting, and sports and recreation, and use the Property personally. Grantor maintains the right to exclude any member of the public from trespassing on the Property. Grantor maintains the right to sell, lease or otherwise transfer the Property to anyone Grantor chooses. 2. Grantor may build, maintain, repair, renovate, expand, or replace structures on the Property that support and/or used for allowed uses. New permanent residential structures are not allowed. 3. All uses allowed by the underlying zoning of the property are allowed except for residential development. 4. Grantor and Grantee expressly acknowledge that this Easement does not require Grantor to engage in any specific uses on the Property. 5. Grantor may undertake other commercial non -residential development uses and activities on the Property as allowed by the underlying zoning as of the date of this easement. 6. Grantor may maintain, create, renovate, expand, or replace existing roads and utilities, or construct new roads, utilities, or other facilities necessary to conduct allowed activities on the Property, and/or to access and/or serve other lands not included in the Property. Section 7. Enforcement. If Grantee becomes aware of a violation of this Easement by Grantor, Grantee shall provide Grantor written notice of such violation and conduct enforcement procedures as set forth in Kittitas County Code Title 18 Code Enforcement. Section 8. Changed Circumstances and Termination 1. Grantor and Grantee acknowledge that conditions may change in the areas neighboring the Property, including, without limitation, increased development, land use and zoning changes. Grantor and Grantee expressly intend that this Easement will continue in pe rpetuity regardless of such changed conditions or circumstances unless this TDRE is modified by the Kittitas County Board of Commissioners. 2. In the event that Grantor and/or Grantee believes that circumstances have changed due to development, zoning, use or other circumstances in the surrounding areas such that it is no longer possible or in the public interest for Grantor to continue to primarily use the Property without substantial economic hardship, or that makes the Purpose of this TDRE no longer practicable, Grantor or Grantee may notify the other in writing of such changed circumstances (a “Changed Circumstances Notice”) and indicating t hat it desires to extinguish the TDRE. 3. The Changed Circumstance Notice must specify the set of facts that the initiator (either the Grantor, Grantee or both) of said notice believes to constitute a change in circumstances making it reasonably necessary to extinguish or modify this TDRE allowing future residential development on the property to occur the initiator will include any supporting documentation as initiator believes to be reasonably necessary. 4. The Changed Circumstances Notice shall be submitted to the Director of Kittitas County Community Development Services for review. The Director shall evaluate the Notice and prepare a Staff Report, which shall include an analysis of the Changed Circumstances Notice and a recommendation for action. The Staff Report shall be submitted to the Board, advising either approval or denial of the Changed Circumstances Notice and the associated requests outlined therein. The Board shall review the Staff Report and take further action as deemed appropriate. Section 9. Transfer of the Property. Upon transfer of the Property or portion of the Property, or any interest in the Property, from one landowner to another, the conveyance document shall expressly refer to this Easement and be subject to its terms, covenants, conditions, and restrictions, which shall run with the land and bind the Property in perpetuity. The failure of Grantor to perform any act required by this subsection will not impair the validity of this Easement or limit its enforceability in any way. Section 10. Amendment. This Easement may be amended by agreement of the Parties. Any such amendment must be consistent with the Purpose of this Easement and the provisions of the TDR Program and will be recorded in the official records of Kittitas County, Washington, and any other jurisdiction in which such recording is required. Section 11. Notices. Any notice, approval or communication that either Party is required to send under this Easement must be given in writing to the following addresses: To Grantor: Name Solar Dolar LLC Address 1410 W Dolarway Road Suite 301 City Ellensburg, WA 98926 To Grantee: Kittitas County Community Development Services 411 North Ruby, Suite 2 Ellensburg, Washington 98926 or to such other address as either party designates by written notice to the other. Section 12. General Provisions. 1. Recordation. Grantee will record this Easement 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. 2. Controlling Law and Interpretation. The interpretation and performance of this Easement is governed by the laws of the State of Washington. Any general rule of construction to the contrary notwithstanding, this Easement will be liberally construed in favor of the grant to affect the Purpose of this Easement, the policies and purpose of the TDR Program and the policy and purposes of RCW 64.04.130 and chapters 84.33 and 84.34 RCW. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the Purpose that would render the provision valid will be favored over any interpretation that would render it invalid. 3. Severability–Entire Agreement-No Forfeiture. If any provision of this Easement, or its application to any person or circumstance, is found to be invalid, the remainder of the provisions of this Easement and the application of such provision to any other persons or in any other circumstances shall remain valid. This instrument sets forth the entire agreement of the Parties with respect to the Property and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Property, all of which are merged into this Easement. 4. Assignment. This Easement is transferable, but Grantee may assign its rights and obligations under this Easement, with Grantors written approval, only to Grantee’s judicially appointed successor or a publicly supported, tax-exempt nonprofit organization, qualified under Sections 501(c)(3) and 170(h) of the Internal Revenue Code of 1986, as amended, and also qualified as a nonprofit nature conservancy corporation under RCW 64.04.130 and 84.34.250. As a condition of such transfer, Grantee shall require that the transferee exercise its rights under the assignment consistent with the Purpose of this Easement. 5. Merger. In the event that Grantee acquires the fee title to all or a portion of the Property subject to this Easement, it is the intent of the Parties, both Grantor and Grantee, that no merger of title shall take place that would merge the restrictions of this Easement with fee title to the Property, notwithstanding any otherwise applicable legal doctrine under which such property interests would or might be merged. As the Parties intend that no such merger take place, and in view of the public interest in the enforcement of this Easement, the restrictions on the use of the Property, as embodied in this Easement shall, in the event fee title becomes vested in Grantee, become and remain permanent and perpetual restrictions on the use of the Property as provided for herein. Grantee, as successor in title to Grantor under the circumstances described in the foregoing sentence, shall observe and be bound by the obligations of Grantor and the restrictions imposed on the Property by this Easement. 6. Counterparts. The Parties may execute this instrument in two or more counterparts, which will 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. 7. Effective Date. The effective date of this Easement is the date of recording in the records of Kittitas County, Washington. 8. Subordination. At the time of conveyance of this Easement, the Property is not subject to any Mortgage or Deed of Trust. Section 13. Liability and Indemnification Liability and Indemnification. Grantor hereby agrees to release, hold harmless, indemnify, and defend Grantee, its officers, employees and agents from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, judgments or administrative actions, including, without limitation, reasonable attorney’s and consultant’s fees, arising from or in any way connected with (1) injury to or death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Protected Property, regardless of cause, except to the extent caused by the negligent acts or omissions of Grantee, its officers, employees or agents; (2) the violation or allege d violation of, or other failure to comply with, any state, federal, or local law, regulation or requirement, including without limitation, CERCLA and MTCA, by any person other than Grantee, its officers, employees and agents; or (3) the presence or release in, on, from, or about the Protected Property, at any time, of any hazardous substances, unless caused solely by the Grantee. Section 14. Upkeep, Maintenance, Costs, Legal Requirements, and Liabilities 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 as required by Kittitas County Code. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals 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. Section 15. Exhibits A. Legal Description B. TDR Density Credit Certificate Letter of Intent C. Permitted Exceptions/Title Report TO HAVE AND TO HOLD unto Grantee, its successors, and assigns forever. IN WITNESS WHEREOF, the undersigned Grantor has executed this instrument this this day of , 20 . GRANTOR: By: Title: STATE OF WASHINGTON ) ) ss. COUNTY OF KITTITAS ) On this day of , 20 , before me, a Notary Public in and for the State of Washington, duly commissioned and sworn, hereby certify that I know or have satisfactory evidence is the person who appeared before me, and said person acknowledged that they signed this instrument and acknowledged it be their free and voluntary act for the uses and purposes mentioned in the instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. -------------------------------------------------------------------------------- NOTARY SIGNATURE _____________________________ PRINTED NAME _____________________________ NOTARY PUBLIC in and for the State of Washington, residing at__________ My Appointment expires___________ ACCEPTED BY: KITTITAS COUNTY BOARD OF COMMISSIONERS 6566 Chairperson_______________________________ Vice-Chairperson___________________________ Commissioner_____________________________ Approved as to legal form only: ____________________________________________ Deputy Prosecuting Attorney Exhibit A – Legal Description Legal Description for TD-26-00001 Solar Dolar LLC: The west half of the northwest quarter of the southwest quarter of Section 2, Township 17 north, Range 18 east, W.M., in the county of Kittitas, State of Washington. 016833: SEC 02, TWP 17, RGE 18 Exhibit B – TDR Certificate Letter of Intent Exhibit C – Title Report