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Exhibit D - Grant of Conservation Easement(10738093.1)After Recording Return to: City Clerk City of Port Orchard 216 Prospect Street Port Orchard WA 98366 Document Title: Grant of Conservation Easement Reference Numbers: XXX Grantor: JL Group, LLC, a Washington limited liability company Grantee: City of Port Orchard, a Washington municipal corporation Abbreviated Legal Description: INSERT (Full Legal on Exhibit A) Assessor's Property Tax Parcel No.: 252401-3-007-2005 GRANT OF CONSERVATION EASEMENT FOR TREE PRESERVATION THIS GRANT OF A PERPETUAL CONSERVATION EASEMENT (hereinafter "Conservation Easement") is made this day of , 2023, by JL Group, LLC, a Washington limited liability company (hereinafter "Grantor"), to City of Port Orchard, a Washington municipal corporation (hereinafter "Grantee" or "City"), in perpetuity as holder of the Conservation Easement pursuant to RCW 64.04.130. Individually they are a "Party" and together they are the "Parties." RECITALS: A. Grantor is the sole owner in fee simple of the property located on tax parcel 252401-3-007-2005 Kitsap County, Washington which is legally described on Exhibit A, which is attached hereto and incorporated herein by reference (the "Protected Property"). The Protected Property consists of approximately XX square feet of land,; and B. Grantor warrants that Grantor has good legal title to the Protected Property, as well as the right to convey this Conservation Easement, and that the Protected Property is free and clear of any encumbrances except those general exceptions contained in the title policy and any special exceptions shown on the Preliminary Commitment that are accepted by the Grantee; and; C. Grantor warrants that Grantor has no actual knowledge of a release or threatened release of hazardous substances or waste on the Protected Property; and D. The Protected Property is zoned Commercial Mixed -Use and is in the process of being redeveloped for medical office. The Protected Property contains a large redwood tree of significance on the south-west corner of the Protected Property; and Conservation Easement Page 1 of 14 10738093.1 - 366922 - 0054 E. On DATE, the City and the Grantor entered into a Development Agreement to allow modifications to the required development standards in order to preserve the redwood tree on the Protected Property in perpetuity. This Development Agreement required Grantor to grant a conservation easement to the City to protect the tree; and E. This Conservation Easement is authorized by RCW 64.04.130, the provision of state law governing conservation easements; and F. The Grantor and the Grantee intend and have the common purpose of retaining the portion of the Protected Property which contains the tree and the surrounding land to the tree dripline (hereinafter "Tree Area") as a protected area which shall not be developed. The legal description for the Tree Area is set forth on Exhibit B which is attached hereto and incorporated herein by reference. Such protection of the Tree Area shall continue as a servitude running with the land, and authorizing Grantee to monitor and enforce such restrictions, as described herein; and G. A site plan that is to scale identifying the Tree Area and describing the current condition and size of the redwood tree is attached to this Agreement as Exhibit C and incorporated herein by reference as though set forth in full (the "Site Plan'); and H. City, as the Grantee of this Conservation Easement of the Tree Area portion of the Protected Property, is a qualified holder of conservation easements under RCW 64.04.130; AGREEMENT: NOW, THEREFORE, for and in consideration of the above recitals and the mutual covenants, terms, conditions, and restrictions contained herein and other valuable consideration by Grantee, the receipt of which is hereby acknowledged by Grantor, and pursuant to the laws of the State of Washington, including Chapter 64.04 of the Revised Code of Washington, the Parties hereby agree as follows: I. Grant. Grantor hereby grants to the Grantee a perpetual Conservation Easement over, under, across and through the Tree Area of the Protected Property, as described in Exhibits B and C, to protect, preserve, maintain, improve, restore, limit future use of or otherwise conserve the Tree Area for the perpetual health of the tree. II. Purpose. The purpose of this Conservation Easement is to assure that the Tree Area will be retained forever in its natural and open space condition and to prevent any use of the Protected Property that will significantly impair or interfere with health of the tree or Tree Area. Grantor intends that this Conservation Easement will confine the use of, or activity on, the Tree Area to such uses and activities that are consistent with this purpose. This statement of purpose is intended as a substantive provision of the Conservation Easement. Any ambiguity or uncertainty regarding the application of the provisions of this Conservation Easement will be resolved so as to further this purpose. Conservation Easement Page 2 of 14 10738093.1 - 366922 - 0054 III. Rights of the Grantee. Grantor hereby conveys to the Grantee all rights necessary to accomplish the purpose of this Conservation Easement, including, without limitation, the following: A. The right to protect, conserve, maintain, improve and restore the Tree Area for the health and preservation of the tree. B. The right to enter the Protected Property or allow Grantee's invitees or licensees to enter, at a reasonable time and upon prior written notice to the Grantor, for the following purposes (i) to make general inspection of the Tree Area to monitor compliance with this Conservation Easement; (ii) to protect, preserve, maintain, improve and restore the Tree Area; and (iii) to mitigate or terminate any violation or otherwise enforce the provisions of this Conservation Easement. C. The right to enjoin any use of, or activity on, the Tree Area that is inconsistent with the purpose of this Conservation Easement, including trespasses by members of the public, and to require the restoration of such area or features of the Tree Area as may be damaged by uses or activities inconsistent with the provisions of this Conservation Easement, all in accordance with Section VIII. D. The right to enforce the terms of this Conservation Easement, consistent with Section VIII. E. The right to place a sign on the Protected Property which acknowledges this Conservation Easement and any conditions of access under this Conservation Easement. The foregoing are rights, not obligations, and shall not create any third party rights of enforcement. IV. Permitted Uses and Activities. A. Grantor reserves to itself, and to its successors and assigns all rights accruing from its ownership of the Protected Property, including the right to engage in or permit or invite others to engage in all uses of the Protected Property that are not prohibited herein and are not inconsistent with the purpose of this Conservation Easement. In the event Grantor plans to undertake actions that could be inconsistent with the purpose of this Conservation Easement, Grantor shall provide Grantee written notice of such intent not less than sixty (60) days prior to the date Grantor intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable, and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the purpose of this Conservation Easement. Grantee shall grant or withhold its approval in writing within Conservation Easement Page 3 of 14 10738093.1 - 366922 - 0054 sixty (60) days of receipt of Grantor's notice. Grantee's approval may be withheld only upon a reasonable determination by Grantee that the action proposed would be inconsistent with the purpose of this Conservation Easement. B. Improvements to the Protected Property shall be limited to those which do not impact the Tree Area or endanger the health of the redwood tree. Any activities, improvements, or development that do not impact the Tree Area or the health of the redwood tree are allowed consistent with applicable code. Grantee acknowledges and agrees that the Development Project described in the Development Agreement between the Parties, including work performed under Port Orchard development permits PW23-033, PW23-034, and PW23-035, is authorized and no additional notice or requirements under this Conservation Easement are required in order for Grantee to implement the Development Project. C. Nothing herein precludes the Grantor from demolishing, removing, and remediating existing improvements on the Protected Property as of the date of this Conservation Easement. V. Transfer of Property. The Grantor agrees to: A. Incorporate the terms of this Conservation Easement by reference in any deed or other legal instrument by which it divests itself of any interest in all or a portion of the Protected Property, including, without limitation, leasehold interests. B. Describe the Conservation Easement in and append it to any contract for the transfer of any interest in the Protected Property. C. Give written notice to the Grantee of the transfer of any interest in all or any portion of the Protected Property no later than forty-five (45) days prior to the date of such transfer. Such notice to the Grantee shall include the name, address and telephone number of the prospective transferee or the prospective transferee's representative. The failure of the Grantor to perform any act required by this subsection shall not impair the validity of this Conservation Easement or limit its enforceability. VI. Extiniuishment. This Conservation Easement may be terminated or extinguished, whether in whole or in part, only under one or more of the following circumstances: A. By judicial determination, by a court having jurisdiction over the Conservation Easement, those circumstances have rendered the purpose of this Conservation Easement impossible to achieve. Conservation Easement Page 4 of 14 10738093.1 - 366922 - 0054 B. In the event the redwood tree is no longer standing in the Tree Area, through no fault of the Grantor, as a result of acts of God, such as fire, flood, storm, and earth movement. Any and all costs of the clean-up and removal shall be borne by Grantor. C. In the event the redwood tree deteriorates through no fault of Grantor and such deterioration creates a risk to public safety, the Grantor may provide the report of a certified arborist to the City with information about the condition of the tree, the viability of preserving the tree, and any applicable risk to public safety. In such case, the City will consider whether the tree should be removed, and the Conservation Easement terminated or whether the tree can be saved or replaced, and the Conservation Easement maintained. The City's decision shall be final. Any and all costs for such removal, including clean-up and restoration shall be borne by Grantor. D. By mutual agreement of the Parties. VII. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to ownership, operation, upkeep, and maintenance of the Protected Property, including performing routine and general maintenance in and upon the Tree Area. A. Taxes. Grantor shall continue to be solely responsible for payment of all taxes and assessments levied against the Protected Property. B. Attorneys' fees and costs for enforcement. If the Grantee commences and successfully prosecutes an enforcement action pursuant to Section VIII below, the Grantor shall pay all reasonable costs and expenses associated with the enforcement action, including but not limited to, reasonable attorneys' fees. VIII. Enforcement and Monitoring. Grantee shall have the authority to enforce the terms of this Conservation Easement. To exercise this authority and thereby further the purpose of this Conservation Easement, the Grantee shall have the following rights under this Conservation Easement, which are subject to the stated limitations: A. Entry onto Protected Property with Reasonable Notice. If the Grantee has reason to believe that a violation of the terms of this Conservation Easement has occurred or is occurring, the Grantee shall have the right to enter the Protected Property, provided that reasonable advance notice is given to the Grantor, for the purpose of inspecting it for violations of any requirement set forth in this Conservation Easement. Additionally, the Grantee shall have the right to enter the Protected Property at least once a year, at a mutually agreed time, for purposes of inspection and compliance Conservation Easement Page 5 of 14 10738093.1 - 366922 - 0054 monitoring regardless of whether Grantee has reason to believe that a violation of this Conservation Easement exists. B. Enforcement Mechanisms and Remedial Measures. If the Grantee finds what it believes to be a violation of this Conservation Easement, it may, at its discretion, use any available legal or equitable remedy to secure compliance, including but not limited to seeking injunctive relief and/or specific performance requiring the Grantor to cease and desist all activity in violation of the terms of this Conservation Easement and to return the Protected Property to its condition prior to any violation(s). Except when an imminent violation could irreversibly diminish or impair the Tree Area of the Protected Property, the Grantee shall give the Grantor written notice of the violation and thirty (30) days in which to take corrective action prior to commencing any legal action. The failure of Grantee to discover a violation or to take immediate legal action shall not bar it from doing so at a later time or constitute a waiver of its rights. Grantee may use the Site Plan as a basis for enforcing the provisions of this Conservation Easement, but is not limited to the use of the Site Plan to show a change of conditions. C. Emergency Enforcement. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damages to the Tree Area of the Protected Property, Grantee may pursue its remedies under this section without prior notice to Grantor or without waiting for the period provided for cure to expire. The costs of such ation shall be borne by Grantor. D. Scope of Relief. Grantee's rights under this section apply equally in the event of either actual or threatened violations of the terms of this Conservation Easement. Grantor agrees that the Grantee's remedies at law for any violation of the terms of this Conservation Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance of the terms of this Conservation Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies described in this section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity. E. Costs of Enforcement. In the event Grantee must enforce the terms of this Conservation Easement, any costs of restoration necessitated by acts or omissions of Grantor, its agents, employees, contractors, invitees or licensees in violation of the terms of this Conservation Easement and Grantee's reasonable enforcement expenses, including reasonable attorneys' and consultants' fees and costs, shall be borne by Grantor, its successors or assigns. Conservation Easement Page 6 of 14 10738093.1 - 366922 - 0054 F. Waiver of Defenses. Grantor acknowledges it has carefully reviewed this Conservation Easement and has consulted or had the opportunity to consult with counsel of its terms and requirements. In full knowledge of the provisions of this Conservation Easement, Grantor hereby waives any claim or defense it may have against Grantee or its successors or assigns under or pertaining to this Conservation Easement based upon waiver, laches, estoppel or prescription. G. Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle the Grantee to bring any action against Grantor to abate, correct or restore any condition in the Tree Area or to recover damages for any injury to or change in the Protected Property resulting from causes beyond Grantor's control, including fire, flood, storm, and earth movement or the like. IX. Hold Harmless. Grantor hereby agrees to release and hold harmless, indemnify and defend Grantee, its officers, elected and appointed officials, employees and agents (collectively "Indemnified Parties") from 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: A. Injury to or the 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 that is not a consequence of an activity of the Indemnified Parties undertaken under the rights granted to Grantee under this Conservation Easement; B. Violations or alleged violations of, or other failure to comply with, any federal, state or local law or regulation relating to pollutants or hazardous, toxic or dangerous substances or materials, including without limitation CERCLA (42 U.S.C. 9601 et seq.) and MTCA (Ch. 70.105D RCW), by any person other than any of the Indemnified Parties, in any way affecting, involving or relating to the Tree Area of the Protected Property, unless such violations or alleged violations are due to the sole acts or omissions of any of the Indemnified Parties on the Protected Property; C. The presence or release in, on, from or about the Tree Area of the Protected Property, at any time, of any substance now or hereafter defined, listed or otherwise classified pursuant to any federal, state or local law, regulation or requirement of any substance hazardous, toxic or dangerous to the air, water or soil, or in any way harmful or threatening to human health or the environment, unless caused solely by any of the Indemnified Parties. X. Recordation. Grantee shall record this instrument in the Office of the Kitsap County Auditor and may re-record it at any time. Conservation Easement Page 7 of 14 10738093.1 - 366922 - 0054 XI. Notices. Any notice, demand, request, consent, approval, or communication that any Party desires or is required to give to another Party under the terms of this Conservation Easement shall be in writing and either served at or mailed to: Grantee: City of Port Orchard 216 Prospect Street Port Orchard WA 98366 Grantor(s): JL Group, LLC INSERT CITY, WA ZIP or to such other address as any Party from time to time shall designate by written notice to others. XII. General Provisions. A. Amendment. If circumstances arise under which an amendment to this Conservation Easement would be appropriate, the Grantor and Grantee may jointly amend this Conservation Easement by a written instrument to be recorded with the Kitsap County Auditor, provided that such an amendment does not diminish the effectiveness of this Conservation Easement in carrying out its purpose to permanently preserve and protect in perpetuity the Tree Area of the Protected Property. B. Controlling Law. The interpretation or performance of this Conservation Easement shall be governed by the laws of the State of Washington and the Laws of the United States. Any legal proceeding regarding this Conservation Easement shall be initiated in Kitsap County Superior Court. C. Interpretation. This Conservation Easement shall be interpreted to resolve any ambiguities and questions of the validity of specific provisions to give maximum effect to its preservation purpose, as stated in Section II, above. If the Grantor has any doubt concerning the Conservation Easement, covenants, conditions, limitations or restrictions herein contained with respect to any particular use of the said Protected Property, it may submit a written request to the Grantee for consideration and approval of such use. D. Definitions. Any masculine term used in this Conservation Easement shall include the female gender. The terms "Grantor" and "Grantee," wherever used in this Conservation Easement, and any pronouns used in their place, shall be held to mean and include respectively the above named Grantor, its successors, and assigns, and the above -named Grantee, its successors and assigns. Conservation Easement Page 8 of 14 10738093.1 - 366922 - 0054 E. Entire Agreement. This Conservation Easement sets forth the entire agreement of the Parties with respect to the issues addressed herein and supersedes all prior discussions, negotiations, understandings, or agreements relating to these issues, all of which are merged herein. F. No Forfeiture. Nothing in this Conservation Easement shall result in a forfeiture or revision of Grantor's title in any respect. G. Successors. As stated in the above recitals, all covenants, terms, conditions, and restrictions of this Conservation Easement shall run with the land and be binding upon, and inure to the benefit of, the Parties hereto and their respective successors and assigns. H. Severability. If any portion of this Conservation Easement is declared unlawful or invalid, the remainder of the Conservation Easement shall remain in full force and effect. I. Authority of Signatories. The individuals executing this Conservation Easement warrant and represent that they are duly authorized to execute and deliver this Conservation Easement. J. No Merger. If Grantee at some future time acquires the underlying fee title in the Protected Property, the interest conveyed by this Deed will not merge with fee title but will continue to exist and be managed as a separate estate. XIII. Environmental Compliance. A. Grantor represents and warrants that, after reasonable investigation and to the best of Grantor's knowledge, 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, including without limitation all federal, state and local environmental laws, regulations and requirements. B. Grantor further represents and warrants that there has been no release, dumping, burying, abandonment or migration from offsite onto the Property of any substances, materials or wastes that are hazardous, toxic, dangerous, or harmful or are designated as, or contain components that are subject to regulation as hazardous, toxic, dangerous, or harmful by any federal, state or local law, regulation, statute or ordinance. There is no pending or threatened litigation affecting the Property or any portion of the Property that will materially impair the Tree Area. 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 Conservation Easement Page 9 of 14 10738093.1 - 366922 - 0054 in interest have received any notice of violation, penalties, claims, demand letters or other notifications relating to a breach of environmental laws. C. Remediation. If at any time there occurs or has occurred a release in, on or about the Property of any substances now or hereafter defined, listed or otherwise classified pursuant to any federal, state or local law, regulation or requirement as hazardous, toxic or dangerous to the air, water or soil, or in any way harmful or threatening to human health or environment, Grantor agrees to take all steps necessary to assure its containment and remediation, including any cleanup that may be required, unless the release was caused by the Grantee, in which case Grantee shall be responsible for remediation. TO HAVE AND TO HOLD unto GRANTEE CITY OF PORT ORCHARD, its respective successors and assigns forever. IN WITNESS WHEREOF the Parties have, by their authorized officers, set their own hands as of the day and year first stated above. GRANTOR: JL Group, LLC By: Its: STATE OF WASHINGTON ) ) ss. COUNTY OF KITSAP ) I, certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that (he/she) signed this instrument; on oath stated that (he/she) was authorized to execute the instrument; and acknowledged it, as the of the , the free and voluntary act of such Party 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. Printed Name: NOTARY PUBLIC in and for the State of Washington, residing at My Commission Expires: Conservation Easement Page 10 of 14 10738093.1 - 366922 - 0054 ACCEPTED BY GRANTEE: On DATE, 2023 the Port Orchard City Council adopted Resolution No. XXX authorizing the Mayor to accept the Conservation Easement, pursuant to RCW 64.04.130. GRANTEE: CITY OF PORT ORCHARD In Robert Putaansuu, Mayor Attest: Brandy Wallace, City Clerk Approved as to form: Charlotte Archer, City Attorney STATE OF WASHINGTON ) ) ss. COUNTY OF KITSAP ) I, certify that I know or have satisfactory evidence that Robert Putaansuu is the person who appeared before me, and said person acknowledged that he signed this instrument; on oath stated that he was authorized to execute the instrument; and acknowledged it, as the Mayor of the City of Port Orchard, the free and voluntary act of such Party 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. Printed Name: NOTARY PUBLIC in and for the State of Washington, residing at My Commission Expires: Conservation Easement Page 11 of 14 10738093.1 - 366922 - 0054 EXHIBIT A Legal Description of Protected Property For APN/Parcel ID(s): 252401-3-007-2005 Legal Description of Protected Property: INSERT LEGAL DESCRIPTION Subject to easements and reservations of record. Situate in the County of Kitsap, State of Washington Conservation Easement Page 12 of 14 10738093.1 - 366922 - 0054 EXHIBIT B Legal Description of Tree Area For APN/Parcel ID(s): 252401-3-007-2005 Legal Description of Tree Area Portion of Protected Property: INSERT LEGAL DESCRIPTION Subject to easements and reservations of record. Situate in the County of Kitsap, State of Washington Conservation Easement Page 13 of 14 10738093.1 - 366922 - 0054 EXHIBIT C Site Plan Showing Tree and Surrounding Area Subject to Conservation Easement, including Description of Current Size and Condition of Redwood Tree Conservation Easement Page 14 of 14 10738093.1 - 366922 - 0054