HomeMy WebLinkAboutCouncil Resolution 1191RESOLUTION NO. _I i R
A RESOLUTION ACKNOWLEDGING THE CITY'S INTENT TO ACCEPT A
PROPERTY TRANSFER FROM TWIN CREEKS DEVELOPMENT LLC WITH THE
TERMS AND CONDITIONS OF THE SOUTHERN OREGON LAND CONSERVANCY
EASEMENT AGREEMENT THAT IS ASSOCIATED WITH THE PROPERTY
TRANSFER
WHEREAS, the City of Central Point approved the Twin Creeks Transit-Oriented Development
Master Plan; and
WHEREAS, the Master Plan envisioned the preservation of open space and riparian habitat
through the use of City zoning and conservation easements; and
WHEREAS, the Twin Creeks Development LLC and Southern Oregon Land Conservancy, Inc
will enter into a Deed of Conservation Easement to preserve properties in Twin Creeks that
possess natural, scenic, habitat and open space values of that are of importance; and
WHEREAS, property designated parks and open space in Twin Creeks has been developed by
the LLC in cooperation with the City of Central Point and has previously been transferred to the
City;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
CENTRAL POINT, OREGON that it is the City's intent to accept an open space property
transfer from Twin Creeks Development LLC with the terms and conditions of the Southern
Oregon Land Conservancy described in a deed of conservation agreement (Exhibit A).
Passed by the Council and signed by me in authentication of its passage this ~ day of
~~~e~~`008.
G~ `
Mayor Hank Williams
A
City Representative
~k.
APPROVED by me this day of ~ 2 08.
~~
Mayor Hank Williams
ATTACHMENT "~~
After Recording, return to:
Southern Oregon Land Conservancy, Inc.
P.O. Box 954
Ashland, Oregon 9752
DEED OF CONSERVATION EASEMENT
Twin Creeks
This Deed of Conservation Easement is made this da of
Development LLC, Grantor, in favor of Southern Oregon Land Conservancy, Inc., a nonpr f t
Oregon corporation, having an address at PO Box 954, Ashland, Or. 97520, Grantee.
RECITALS
1) The Twin Creeks Development, LLC owns certain real property in Jackson County, Oregon,
more particular described in the attached Exhibit A (the Property); and
2) The Property is located within the Twin Creeks Transit Oriented Development which is
being developed by Grantor in cooperation with the City of Central Point, Oregon, the City,
and Grantor and the City intend that the ownership of the Property will be transferred to the
City subject to the terms and conditions of this Conservation Easement; and
3) The Property possesses natural, scenic, habitat, and open space values (collectively,
Conservation Values) of great importance to Grantor, Grantee, the people of Jackson
County, the City of Central Point, Oregon, and its residents, and the people of the State of
Oregon; and
4) The Property contains distinct areas providing different uses and values which include
natural open space, managed parkland, and an area of bio-swales which are designed to
improve water quality and maintain scenic open space. These areas are delineated and
described in greater detail in the Baseline Documentation Report described below; and
S) Part of the development plan includes the restoration of the Griffin Creek riparian habitat and
the protection of the Jackson Creek habitat. The Griffin Creek restoration has reintroduced
meanders, removed fish barriers, provided habitat, and will improve water quality, and will
provide educational opportunities. The creek was channelized for irrigation conveyance and
was deeply incised and lacked native riparian vegetation. Restoration has reintroduced a
meander and regraded and revegetated 1,900 feet of creek banks. The design balances
sediment and floodwater conveyance while improving critical aquatic habitat and water
quality for Steelhead Trout, and
6) The project has also replaced one fish barrier with afish-friendly irrigation diversion
necessary to making Griffin Creek passable to Steelhead Trout, and
7) The Oregon Division of State Lands, Wetlands Mitigation Board, granted funds towards the
1 • Initials: Grantor; , Grantee•
restoration efforts in Griffin Creek, and
8) The long term protection of the riparian habitat in both Griffin and Jackson Creeks will
provide habitat for fish, including current populations of native anadromous fish such as
Steelhead Trout and other aquatic species and will help improve water quality within the
broader watershed therefore protecting a significant relatively natural habitat as described in
26 USC 170(h)(4)(A)(ii); and
9) The Property will also contain trails in the upland areas and a viewing and education facility
within the riparian zone for the use and enjoyment of the general public and will therefore
protect "...land azeas for outdoor recreation by, or the education of, the general public.:." as
described in 26 USC 170(h)(4)(A)(i); and
10) The protection and management of the bio-swales located on the Property will serve to
enhance water quality and habitat for an array of native species and provide scenic open
space for the enjoyment of the general public; and
11) The City will eventually take ownership of the Property and supports the establishment of
this Conservation Easement to ensure the perpetual protection of the riparian and open space
values protected for the scenic enjoyment of the general public as described in 26 USC
170(h)(4)(A)(iii) (I) and (II) and 26 CFR Section 1.170A-14(d)(4)(i)(A) and(B); and
12) The specific conservation values of the property are further documented in an inventory of
relevant features of the property (the Baseline Documentation Report) which is dated
and on file at the offices of the Grantee. The Baseline Documentation report (BDR) is
incorporated into this easement by this reference and is agreed by the parties to accurately
represent the Property at the time of this grant through its maps, photographs and other
documentation and which is intended to serve as an objective, though nonexclusive,
information baseline for monitoring compliance with the terms of this grant; and
13) The Grantee is a publicly supported, tax-exempt, nonprofit organization qualified under
Section 501(C)(3) and 170(h) of the Internal Revenue Code whose primary purpose is the
preservation, protection, and enhancement of lands in its natural, scenic, historical,
agricultural, forested, and/or open space condition; and
l 4) ORS 271.715 to 271.795 permit the creation of conservation easements for the purpose of
retaining or protecting natural, scenic, and open space values of real property, assuring its
availability for agriculture, forest, recreational, or open space use, protecting natural
resources, maintaining or enhancing air or water quality, or preserving the historical,
architectural, archaeological, or cultural aspects of real property; and.
15) The State of Oregon has determined that it is in the public interest to protect existing open
spaces for the use and enjoyment of Oregon's scenic landscapes (ORS 390.010(3)(a)); and.
2. Initials: Grantor; ,Grantee;
16) The Grantor intends to convey to Grantee the right to preserve and protect the conservation
values of the Property in perpetuity; and
17) Grantee agrees by accepting this grant to honor the intentions of Grantor described in this
Easement and to preserve and protect in perpetuity the conservation values of the Property
for the benefit of this and future generations.
AGREEMENT
In consideration of the above and the mutual covenants, terms, conditions and restrictions
contained in this document and pursuant to the laws of the State of Oregon and in particular ORS
271.715 through 271.795, Grantor voluntarily grants and conveys to Grantee a
Conservation Easement in perpetuity over the Property of the nature and character and to
the extent set forth in this document (Easement).
1. PURPOSE. It is the purpose of this Easement to protect, preserve, and enhance this private
Property's natural, scenic and open space characteristics. Without limiting the generality of the
above, the purpose specifically includes protecting and enhancing the riparian habitat in Griffin
and Jackson Creek, preserving scenic open space and ensuring the public access and enjoyment
of established trails within the Property.
2. RESERVED RIGHTS. In granting this Conservation Easement, Grantor is only giving
Grantee the right to monitor and enforce the terms of this agreement in order to protect the
Property's conservation values. Therefore, Grantor reserves all rights and obligations accruing
from ownership of the Property, including the right to engage in or permit or invite others to
engage in all uses of the Property that are not expressly prohibited by this Easement and are not
inconsistent with the purposes of this Easement. Without limiting the generality of the
foregoing, Grantor expressly reserves the right to conduct the following activities and uses,
notwithstanding anything in this Easement to the contrary:
(A) To develop and maintain a trail system for public use in the Managed Parkland
portion of the property as described in the Baseline Report and an educational and viewing
facility within the riparian area according to the terms and condition of a Trail
Development and Maintenance Plan as described in Exhibit B which is incorporated into
this Easement by this reference; and
(B) Riparian and Habitat Restoration and Maintenance according to the terms and
conditions of a Conservation Management Plan as also described in Exhibit B; and
(C) To manage the bio-swales in a manner which enhances water quality and preserves
open space according to an approved Conservation Management Plan described in the
attached Exhibit B; and
(D) Generally to undertake any and all other activities that are necessary to protect public
health or safety, or which are required by any governmental law, regulation, or agency,
3. Initials: Grantor; ,Grantee;
provided that any such activities shall be conducted to avoid or minimize interference with
the Conservation Values of the property. These activities include, but are not limited to
the following:
i) operation and maintenance of irrigation facilities by the Rogue Valley Irrigation
District or successor organization,
ii) street maintenance, including related flood control, of public roads within the
Property by the City or its designee, and
3. RIGHTS OF GRANTEE. In order to protect the Property's conservation values and
to accomplish the purpose of this Easement, the following rights are conveyed to Grantee
by this Easement:
(A) To preserve, protect, and enhance the natural, scenic, open space and
ecological features of the Property;
(B) To establish and maintain signs, no larger than two square feet in area each,
along the Property borders, no more than one every 100 feet, acknowledging the
presence of this Easement and the private nature of the Property;
(C) To enter upon the Property at reasonable times as described below in Section 5
in order to monitor Grantor's compliance with and otherwise enforce the terms of
this Easement; and
(D) To enjoin any activity on, or use of, the Property that is inconsistent with the
Purpose of this Easement and to require the restoration of such areas or features of
the Property that may be damaged by any inconsistent activity or use, pursuant to
the remedies set forth below in Section 7.
(E) In the event of unforeseen, or unconsidered activities, Grantee may, in its sole
discretion, approve other uses of the Property, even if they are prohibited by the
terms of section 4 below, but only if Grantor can show by clear and convincing
evidence that: such activity will enhance the protection of the Property's
Conservation Values; such proposed use will not create any private innurement or
impermissible private benefit as such terms are defined by the Internal Revenue
Code; and that the proposed use will not affect the qualification of this Easement
or the status of Grantee under any applicable laws, including ORS 271.715 through
271.785 or Section 170(h) of the Internal Revenue Code and any successor
provisions. Grantee is under no obligation to consider or approve any such
proposal and may condition any such review in any manner it deems appropriate.
Grantee's approval under this section must be in writing and must confirm that the
conditions described above have been met.
4. PROHIBITED USES. In order to protect the Property's conservation values any
activity which is inconsistent with the purpose of this Easement is prohibited unless such
use is specifically reserved by Grantor above. Without limiting the generality of the
foregoing, the following activities are expressly prohibited, unless allowed under Section
2 or 3 above.
(A) Industrial use;
(B) Commercial use incompatible with the purpose of the Easement;
4. Initials: Grantor; ,Grantee;
(C) The use of off-road vehicles except on currently established roadways as
indicated in the Grantee's files and Baseline Assessment and in emergencies;
(D) The legal or de facto subdivision or partitioning of the Property, or the
development, maintenance, or use of the Property for anything other than habitat
preservation and public education and recreation;
(E) The exploration for or extraction of minerals, hydrocarbons, oils or materials
on or below the surface of the Property;
(F) Any alteration of the surface of the land, including, without limitation, the
excavation or removal of soil, sand, gravel, rock, peat, sod, or building of roads
and other right-of--ways within the Property except as permitted under the
provisions of Section 2 above;
(G) The construction of any building, structure, sign, or improvement including,
but not limited to, utility lines, gas or water lines or other disturbances either above
or below ground on the Property except as permitted under the provisions of
Sections 2 and 3 above;
(H) The processing, storage, dumping, or other disposal of hazardous, toxic or
other wastes, and refuse on the Property;
(I) Hunting;
(J) Grazing of livestock, unless expressly permitted by Grantee to promote
Conservation Purposes.
5. ACCESS. This Easement does not effect the private nature of the property and it does
not convey any right of access by the general public, except that there shall be public
access allowed to any established trails or facilities developed on the Property. Such
public access may be restricted on a temporary basis to protect public safety or the
Conservation Values being protected by this Easement. Any such restriction greater than
thirty (30) days in length shall require Grantee's written approval. Additionally, in order
to monitor compliance with the terms of this Easement it does give to Grantee or its agent
or designee the right to enter upon the Property to inspect the Property at reasonable times
and upon at least 15 days notice to the current owner of the Property (unless the owner
agrees to shorter notice). Failure to conduct such inspections shall not constitute a waiver
of the right to do so, nor a waiver of the right to enforce any violation of the terms of this
Easement which would have been apparent on inspection. Also, in the event that Grantee
reasonably believes that the terms of this Easement have been or are about to be violated,
Grantee or its designee or agent may conduct further inspections of the Property at any
time upon reasonable notice under the circumstances to Grantor. This notice shall be
determined by Grantee in its sole discretion and may include no prior notice if Grantee
determines immediate access is necessary for the protection of the Conservation Values.
Any inspection authorized by this Section 5 shall be conducted solely for the purpose of
determining whether the condition of the Property complies with the terms of this
Easement.
5 . Initials: Grantor; ,Grantee;
6
6. NOTICE AND APPROVAL.
(A) Grantor agrees to notify Grantee prior to undertaking any activity which may
have an adverse impact on the conservation values of the Property, and specifically
prior to undertaking any activities such as those described in Section 2(A), (B) and
(C). The purpose of such notice is to provide Grantee with an adequate
opportunity to review and monitor the activities to ensure that they are consistent
with the purpose of this Easement. All such notice, except that required by Section
2(A), (B) and (C), shall be provided not less than thirty (30) days prior to
commencement. All notices and plans required under Section 2(A), (B) and (C)
shall be submitted to Grantee not less than sixty (60) days prior to anticipated
commencement.
(B) In all cases where Grantee's approval is required, except those described in
Section 2(A), (B) and (C), Grantee shall grant or withhold its approval within
thirty (30) days of receipt of Grantor's written request for such approval. In the
case of all plans submitted pursuant to Section 2(A), (B) and (C), Grantee shall
either grant or withhold its approval in writing within sixty (60) days of receipt of
Grantor's written request for such,approval. Any approval required of Grantee
under the terms of this Easement shall be granted or withheld solely at the
discretion of Grantee, unless otherwise specified within this Easement.
7. ENFORCEMENT. In order to provide for the protection of the Property's
Conservation Values, Grantor hereby waives any defenses of laches, estoppel,
abandonment, or prescription and expressly grants the following rights of enforcement.
(A) Remedies. If Grantee determines that a violation of the terms of this Easement has
occurred or is threatened, Grantee shall give written notice to Grantor of such violation
and demand corrective action sufficient to cure the violation and, if necessary, restore the
Property to its intended condition. If Grantor fails to cause the violation to be cured
within thirty (30) days after receipt of notice thereof from Grantee, or, if the violation
cannot reasonably be cured within a thirty (30) day period, if Grantor fails to begin curing
the violation within such period, or if Grantor fails to continue diligently to cure such
violation until finally cured, Grantee shall have the following rights and remedies in
addition to all other rights under this Easement:
(i) To bring an action at law or in equity in a court of competent jurisdiction
to enforce the terms of this Easement;
(ii) To enjoin a violation of this Easement, ex parte as necessary, by
temporary or permanent injunction;
(iii) To recover any damages to which it may be entitled for violation of the
terms of this Easement, including the right to recover treble damages for the full
gross value of any trees felled on, or removed from, the Property in violation of
the terms of this Easement; and
(iv) To require the restoration of the Property to the condition that existed prior
to any such injury.
6. Initials: Grantor; ,Grantee;
e
Without limiting Grantor's liability for any harm done, Grantee in its sole discretion may
apply any damages recovered to the cost of undertaking any corrective action on the
Property. Notwithstanding anything to the contrary in this Easement, if Grantee
determines that circumstances require immediate action to prevent or mitigate significant
damage to the Conservation Values of the Property, Grantee may pursue its remedies
under this subsection without prior notice to Grantor or without waiting for any
applicable cure to expire. Grantee's rights under this section apply equally in the event of
either actual or threatened violations of the terms of this Easement. Grantor
acknowledges and agrees that breach of this Easement will cause irrepazable hazm to
Grantee and agrees to the entry of a temporary restraining order and permanent injunction
by any court of competent jurisdiction to prevent breach or further breach of this
Easement, without the necessity of proving either actual damages or the inadequacy of
otherwise available legal remedies at law.
(B) Remedies Cumulative. Grantee's remedies shall be cumulative and in addition to all
remedies now or hereafter existing by Easement, at law, or in equity. Partial exercise of,
or forbeazance by, Grantee in exercising any right or remedy shall not limit or restrict
Grantee's subsequent exercise of such right or remedy or contemporaneous or subsequent
exercise of any other right or remedy, nor shall it be construed to be a waiver by Grantee
of any term of this Easement.
(C) Cost of Enforcement. If any action or suit is instituted to enforce the terms of this
Easement, the prevailing party shall be entitled to recover from the other party, in
addition to any other rights and remedies it may have, all reasonable expenses and
attorney fees at trial or on appeal, and all costs (including attorney fees) associated with
any restoration required as a result of Grantor's violation of the terms of this Easement.
(Dl Acts Beyond Grantor's Control. Nothing contained in this Easement shall be
construed to entitle Grantee to bring any action against Grantor for (i) any injury to or
change in the Property resulting from causes beyond Grantor's control, including without
limitation fire, flood, storm, drought, infestation, earth movement, or from any action
taken by Grantor under emergency conditions to prevent, abate, or mitigate significant
injury to the Property resulting from such causes, or (ii) any act or omission of a third
party trespasser unless such third party is acting under the instructions of Grantor or with
the consent of Grantor.
8. COSTS AND LIABILITIES.
(A) Maintenance. Grantor retains all responsibilities and shall beaz all costs and
liabilities of any kind relating to the ownership, operation, upkeep and maintenance of the
Property and does hereby indemnify and hold Grantee harmless therefrom.
(B) Monitoring. Grantee shall be solely responsible and shall bear all costs and liabilities
of any kind relating to the Monitoring of the Property by Grantee and shall. hold Grantor
harmless therefrom.
C Taxes. Grantor agrees to pay before delinquency all taxes and assessment fees and
charges of whatever description levied on or against the property by any competent
7. Initials: Grantor; ,Grantee;
authority (collectively taxes) including any taxes imposed upon, or incurred as a result of,
this easement. If Grantor fails to pay any taxes when due, Grantee has the right, but not
the obligation, to pay such taxes according to any bill statement or estimate procured
from the appropriate authority without inquiry into its validity prior to delinquency and
upon no less than seven (7) days notice to Grantor. Should Grantee make such a tax
payment, Grantor shall be obligated to pay the principal amount to Grantee plus interest
in the amount of five (5) percentage points over the prime rate of interest charged by US
Bank of Oregon or the maximum rate allowed by law, whichever is lesser.
9. INDEMNITIES.
(A) Grantor shall hold harmless, indemnify and defend the Grantee and its members,
directors, officers, employees, agents and contractors and their heirs, personal
representatives, successors and assigns (collectively Grantee) from and against all
liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands
or judgments including without limitation reasonable attorney fees arising from or in any
way connected with:
(i) injury or death to any person or physical damage to any property resulting
from any act, omission, condition or other matter related to occurring on or about
the property regardless of cost unless solely due to the negligence of Grantee;
(ii) the violation or alleged violation of, or failure to comply with, any state,
federal, or local law, regulation or requirement by any person other than Grantee
which in any way affects, involves or relates to the Property;
(iii) the presence or release in, on, from, or about the Property, at any time, of any
substance now or later defined, listed or otherwise classified as hazardous, toxic,
polluting, or otherwise contaminating to the air, water or soil, or in any way
harmful or threatening to human health or the environment, unless such presence
or release is due solely to the acts of Grantee;
(iv) the obligations specified in Section (8) above;
(B) Grantee shall hold harmless, defend, and indemnify for public liability and property damage
Grantor, and Grantor's agents, and employees, from and against all claims, demands, actions,
and suits (including attorney fees and costs incurred at trial and on appeal) brought against any of
them arising from the exercise of Grantee's rights or responsibilities under this Easement.
Grantee shall not be responsible for the acts or omissions of third parties, other than Grantee's
agents, employees, contractors, or subcontractors, except to the extent that the acts or omissions
of third parties are caused by the fault of Grantee or its agents, employees, contractors, or
subcontractors.
10. GRANTEE'S DISCRETION. Grantor intends that the enforcement of the terms and
provisions of this Conservation Easement shall be at the discretion of the Grantee and any
forbearance by Grantee to exercise its rights hereunder in the event of any breach hereof by
Grantor shall not be deemed or construed to be a waiver of Grantee's rights under the
Conservation Easement in the event of any subsequent breach.
8. Initials: Grantor; ,Grantee;
11. CHANGE OF CONDITIONS.
(A) If in the opinion of Grantee circumstances arise in the future that render the purpose
of the Easement impossible to accomplish, the Easement can only be extinguished or
terminated by Grantee, whether in whole or in part, by judicial proceedings in a court of
competent jurisdiction brought by Grantee which opinion shall confirm that the purpose
of this Easement is impossible to fulfill due to changes in conditions. The amount of
proceeds to which Grantee shall be entitled, after satisfaction of prior claims, for any sale,
exchange, or involuntary conversion of all or a portion of the Property subsequent to such
extinguishment or termination, shall be the amount determined in accordance with
Section 12 and;
(B) in making this grant, Grantor has considered the possibility that uses prohibited by
the terms of this Easement may become more economically valuable than uses permitted
by the terms of this Easement; that neighboring properties may in the future be put
entirely to such prohibited uses; and that Grantor may be unable, or find it unprofitable,
to conduct or implement any or all of the uses permitted under the terms of the Easement.
It is the intent of both Grantor and Grantee that any such changes shall not be deemed to
be circumstances justifying the termination or extinguishment of the Easement pursuant
to paragraph 11(a).
12. VALUATION. This Easement constitutes a real property interest immediately vested in
Grantee, which the Parties stipulate to have a fair market value at least equal to the proportionate
value that this Easement, as determined at the date of conveyance, bears to the fair market value
of the unrestricted Property as a whole at that time. This proportionate value shall remain
constant but shall exclude any increase in value attributable to improvements constructed or
placed on the Property subsequent to the Date of this Easement. The values used to determine
the above ratio shall be those used to calculate any deduction for federal income tax purposes
allowable by reason of this grant, pursuant to Section 170(h) of the Internal Revenue Code. The
Parties shall execute a letter confirming such values prior to the date any deduction is taken by
Grantor and a copy of such letter shall be kept on file at the offices of Grantee. In the event that
no tax deduction is taken pursuant to Section 170(h) of the Internal Revenue Code then the value
of this Easement may be determined by a qualified, licensed Appraiser chosen by Grantee at the
time such valuation is required under Section 11 or 13 of this Easement.
13. CONDEMNATION. If all or part of the Property is taken by an exercise of the power of
eminent domain or acquired by purchase in lieu of condemnation, whether by public, corporate
or other authority, so as to terminate this Easement, in whole or in part, Grantor and Grantee
shall act jointly to recover the full value of the interests in the Property subject to the taking or
purchase in lieu of taking and all direct and incidental damages resulting therefrom. All
reasonable expenses paid by Grantor and Grantee in connection with such an action shall be paid
out of the amount recovered. Grantee's share of the balance of the amount recovered shall be
determined in accordance with applicable law. Grantee shall use any proceeds received under
the circumstances described in Section 11 or this Section 13 in a manner consistent with its
9. Initials: Grantor;-, Grantee;
1®
conservation purposes, which are exemplified by this Easement.
14. ASSIGNMENT. This Easement is transferable, but Grantee may assign its rights and
obligations under this Easement only to an organization that is a qualified organization at the
time of transfer under Section 170(h) of the Internal Revenue Code (or any successor provision
then applicable), and authorized to acquire and hold conservation easements under then
applicable Oregon law or the laws of the United States. As a condition of such transfer, Grantee
shall require that the conservation purpose that this grant is intended to further continue to be
carried out. Grantee agrees to give written notice to Grantor of an assignment at least 20 days
prior to the date of such assignment. The failure of Grantee to give such notice shall not affect
the validity of such assignment nor shall it impair the validity of this Easement or limit its
enforceability in any way.
15. MISCELLANEOUS
(A) Controlling Law. This Easement shall be governed by and construed in
accordance with the laws of the state of Oregon.
(B) Notices. Any notice, demand, request, consent, approval, or other
communication required or permitted hereunder shall be in writing and either
served personally or sent by first class mail, postage prepaid, or certified mail,
return receipt requested, addressed to such address as either party from time to
time shall designate by written notice to the other. In the event no such address is
designated, or any notice sent to the designated address is returned as undelivered,
either Party may use the address recorded in public records, such as those found at
the Oregon Secretary of State's Corporation Division, business registry or the
Jackson County Assessor's office for property tax purposes, and mailing to such
address shall constitute notice. Notices shall be deemed given when received, or
four days from the date of mailing, whichever occurs first.
(C) Recordation. Grantee shall record this instrument in the official records of
Jackson County, Oregon and may re-record it at any time as may be required to
preserve its rights under this Easement.
(D) Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed to effect the purpose
of this Easement and the policies and purposes of ORS 271.715 to 271.795. Any
provision in this Easement found to be ambiguous shall be interpreted consistent
with the purpose of this Easement and the requirements of Internal Revenue Code
Section 170(h) and its regulations.
(E) Severability. If any provision of this Easement is found to be invalid, the
remaining portion of that provision and all other provisions of this Easement
shall, nevertheless, remain in full force and effect.
(F) Entire Agreement. This Easement is the final and entire agreement of the
parties with respect to the subject matter of this Easement and supersedes all prior
or contemporaneous oral or written understandings or agreements between the
parties.
(G) No Forfeiture. Nothing in this Easement shall be construed to result in a
1 ~. Initials: Grantor;-, Grantee;
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forfeiture or reversion of Grantor's title to the Property in any respect.
(H) Successors. The covenants, terms, conditions, and restrictions of this
Easement shall be binding upon and inure to the benefit of the parties hereto and
their respective personal representatives, heirs, successors, and assigns, and shall
continue as a servitude running in perpetuity with the Property. Any reference in
this Easement to either Grantor or Grantee shall include their respective personal
representatives, heirs, successors, and assigns.
(I) Termination of Rights and Obli ata ions. A party's rights and obligations under
this Easement terminate upon transfer of such party's interest in the Property or
the easements granted hereby, except that liability for acts or omissions occurring
prior to transfer shall survive transfer.
(J) Counterparts. The parties may execute this instrument in two or more
counterparts, each of which shall be deemed an original. In the event of any
disparity between the counterparts produced, the recorded counterpart shall be
controlling.
(K) Exhibits and Recitals. The exhibits and recitals aze incorporated into this
document by this reference.
(L) Subsequent Transfer. Grantor agrees that the terms, conditions, restrictions,
and purposes of this grant will be inserted by them in any subsequent deed or
legal instrument by which Grantor divests itself of any interest in the Property
including, without limitation, a leasehold interest. Grantor further agrees to give
written notice to Grantee of the transfer of any interest at least twenty (20) days
prior to the date of such transfer. The failure of Grantor to perform any act
required by this paragraph shall not impair the validity of this Easement or limit
its enforcement in any way.
(M) Estoppel Certificate. In the event of any pending sale of the Property, then
upon request by Grantor, Grantee shall within thirty (30) days execute and deliver
to Grantor any document including an estoppel certificate which certifies
Grantor's compliance with any obligations of Grantor contained in this Easement
and otherwise evidences this Easement as may be requested by Grantor.
(N) Amendment. If circumstances arises under which an amendment to or
modification of this Easement would be appropriate, Grantor and Grantee are free to
jointly amend this Easement provided that no amendment shall be allowed that will
affect the qualification of this Easement or the status of Grantee under any
applicable laws, including ORS 271.715 through 271.785 or Section 170(h) of the
Internal Revenue Code and any successor provisions. Furthermore, any amendment
must be consistent with the purposes of this Easement and shall not lessen the
protection afforded by this Easement or affect its perpetual duration. Any such
amendment shall be recorded in the official records of Jackson County, Oregon.
11 . Initials: Grantor;-, Grantee;
~~
TO HAVE AND TO HOLD unto Grantee, its successors and assigns, forever.
1N WITNESS WHEREOF, Grantor and Grantee have set their hands on the day and year
first written above.
GRANTOR: Twin Creeks Development, LLC. An Oregon Limited Liability Company
By:
State of Oregon
County of
This instrument was acknowledged before me on the
by as
Development, LLC, an Oregon Limited Liability Company.
day of , 2008
of The Twin Creeks
Notary Public
My Commission Expires:
ACCEPTED on this day of , 2008
GRANTEE: SOUTHERN OREGON LAND CONSERVANCY, INC., an Oregon
nonprofit corporation
By:
William Morrish
Title: President
State of Oregon
County of
This instrument was acknowledged before me on the day of , 2008
by William Morrish as President of Southern Oregon Land Conservancy, Inc, an Oregon
nonprofit corporation.
Notary Public
My Commission Expires:
12. Initials: Grantor;~Grantee;
~~
Exhibit A
The Property
13 . Initials: Grantor;~Grantee;
~. 4
Exhibit B
Trail Development and Maintenance Plan and Conservation Management Plan.
The Baseline Documentation Report includes maps and descriptions designed to identify
three separate management areas within the Property. These are noted as Managed
Parkland, Natural Open Space, including the riparian area, and the open space area where
the bio-swales are located. These areas are all subject to different uses and restrictions
which are described below.
Trail Development and Maintenance Plan .Grantor has the right to develop
and maintain public recreational trails in the upland areas of the property, which
are delineated as Managed Parkland within the BDR, and an education and
viewing facility within the riparian area within the Natural Open Space. The
footprint of this educational facility shall not exceed 500 square feet in total area
and shall be located as indicated on the maps included within the Baseline
Documentation Report. Prior to any such development Grantor shall submit to
Grantee plans which outline the development and how the development and
maintenance activities shall protect the conservation values being protected by
this Easement. The plan shall specifically include: development standards,
details of construction and maintenance, how the effects of any runoff will be
limited and how both the habitat and water quality will be protected. Within the
Managed Parkland portion of the Property standard park maintenance activities
designed to preserve the open space qualities will be allowed except that:
a. Impervious surfaces shall not exceed a total of three point eight percent
(3.8 %) of the Managed Parkland Area; and
b. All structures, including play areas, shall be located in such a manner as to
limit their visual impact of the scenic Natural Open Space and shall not
exceed 500 in total square feet measure by the exterior of any safety
surface such as bark chips or other clearly delineated area around any play
structure; and
c. There shall be no intentional introduction of noxious or invasive weeds;
and
d. The use of herbicides and pesticides shall be designed to limit their impact
on the Natural Open Space and on water quality.
Grantee's review of any Trail Development and Maintenance Plan shall be made
according to the terms and conditions of Section 6 of the Conservation Easement and
Grantee shall not unreasonable withhold its approval as long as the conservation values
are adequately protected. This plan may be included within a broader Conservation
Management Plan described below.
14. Initials: Grantor;~Grantee;
~~
2. Conservation Management Plan. Work, maintenance or other intentional
disturbance within the Natural Open Space area, including the riparian area which for
purposes of this Easement shall be considered that azea within 15 feet of either high bank
of Griffin Creek and within 15 feet of either high bank of Jackson Creek except where
this area leaves the property under conservation easement, or the bio-swales azea all as
noted in the BDR may only be done according to the terms and conditions of a
Conservation Management plan (CMP) which has been approved by Grantee. The
Purpose of any CMP shall be to restore, enhance or preserve riparian habitat for native
species, improve or maintain water quality, and or limiting the effects of existing uses
such as irrigation diversion on the habitat and water quality of the Creeks. A CMP may
also consider flood prevention by allowing for clearing of obstructions within the
Riparian azea, including native vegetation if it poses a reasonable threat of creating an
obstruction during a high water event. Such flood prevention clearing shall be designed
to create the minimum impact possible on the native vegetation while protecting public
health and safety.
Any CMP must preserve the existing riparian diversity and promote its continued
development to a natural habitat area for native species. Any CMP must specifically
address management practices and outcomes relating to the integrity of the riparian zone
and water quality. These factors include, but are not limited to:
• maintaining riparian vegetation with predominantly native species;
• developing and maintaining instream habitats with pools, snags,
larger channel substrate and in-stream vegetation;
• promoting increased water quality, including temperature;
• providing habitat for native species and enhancing potential for
native anadromous fish.
Additionally a CMP shall address the management of the Bio-swales azea noted in the
BDR. The management of this area shall be designed to address water quality and
flooding issues while promoting native vegetation and the area's scenic open space
qualities. It is understood by the parties that the bio-swales may require periodic
excavation in order to maintain their purpose for flood control and water quality. Any
excavation shall also require adequate re-vegetation of the azea with native species. It is
also understood by the parties that a CMP shall include a provision allowing emergency
flood control efforts when necessary without prior notice to Grantee.
All CMPs shall be prepared by a natural resources professional and shall be updated and
re-approved by Grantee at least every ten years. Grantor shall also provide Grantee with
an implementation plan prior to any actual on-the-ground work no less than forty-five
(45) days prior to commencement. Grantee shall review such implementation plan for its
compliance with the approved CMP and shall approve or disapprove of such
implementation plan within thirty (30) days of its receipt based on that compliance.
Every CMP shall also address how its provisions promote the purposes of the Easement.
Grantee may, in its reasonable discretion, request amendments and alterations in any plan
15. Initials: Grantor;~Grantee;
~~
submitted in order to ensure compliance with Easement purposes. Grantor acknowledges
that the standard to be applied in reviewing any Conservation Management Plan may
exceed the provisions of any applicable State or Federal law or regulation and that the
heightened review is consistent with the grant of this Easement.
16. Initials: Grantor;~Grantee;
~~
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CENTRAL POINT, OREGON 8750?
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PO BOX 3P85
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CENTRAL POINT, OREGON 8730
(511) 664-5589
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