HomeMy WebLinkAboutDoc 568 - IGA - City of La Pine - Industrial ParkDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -www.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of October 29, 2014
Please see directions for completing this document on the next page.
DATE: October 22, 2014
FROM: James Lewis Property & Facilities 541-385-1414
TITLE OF AGENDA ITEM:
Consideration of Board signature of Document 2014-568, an Intergovernmental Agreement between
Deschutes County and the City of La Pine.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
Pursuant to the authority granted in ORS 190.003 through 190.110, Deschutes County and the City of
La Pine desire to enter into an Intergovernmental Agreement regarding the marketing, negotiating and
sale of property in La Pine commonly known as the La Pine Industrial Park. This includes
approximately 160 acres of Industrial zoned land intended for Economic Development purposes.
Through the Agreement, the County and City are indicating that they believe that City is better able to
locally assess, market and respond to prospective purchasers and Economic Development opportunities
needing industrial land in the City, thereby serving the entirety of southern Deschutes County. The
term of the agreement is 5 years, during which time the City will have the authority for the marketing,
promotion and sale negotiations for the Real Property for Economic Development, but the County will
retain ownership. Upon sale, the County and City will share the proceeds from the sale (50% each,
with the City to absorb hard costs associated with the sale).
FISCAL IMPLICATIONS:
The fiscal implications to the County include the potential loss of revenue equal to 50% of the gross
sale price of the Real Property at the time the property transaction is complete. This is off set by the
City absorbing the costs of all marketing promotion, negotiations and other hard costs associated with
the sale from their portion of the proceeds. The specific dollar amount of potential loss of revenue to
the County is difficult to precisely figure as the property values will vary over time.
RECOMMENDATION & ACTION REQUESTED:
Staff recommends Board signature of Document 2014-568.
ATTENDANCE: James Lewis
DISTRIBUTION OF DOCUMENTS:
Originals to James Lewis.
REVIEWED
LEGAL COUNSEL
INTERGOVERNMENTAL AGREEMENT
LA PINE INDUSTRIAL LAND SALES
RECITALS
This Intergovernmental Agreement ("Agreement") is made and entered into by and between
Deschutes County, a political subdivision of the State of Oregon, hereinafter referred to as
"County", whose address is P.O. Box 6005, Bend, OR, 97708-6005, and The City of La Pine,
an Oregon municipal corporation hereinafter referred to as "City", whose address is PO Box
2460, La Pine, Oregon 97739.
WHEREAS. County and City are authorized pursuant to ORS 190.003 through 190.110 to enter
into an intergovernmental agreement for the performance of any or all functions which a party to
the agreement, or its officers or agents, has the authority to perform; and
WHEREAS, County owns the real property more particularly identified on Exhibit A (the "Real
Property"), which is commonly known as the La Pine Industrial Park. The Real Property
includes two distinct sub-areas: the Newberry Industrial Park ("Newberry") and the Finley Butte
Industrial Park ("Finley"). Each parcel comprising the Real Property is further described on
Exhibit A; and
WHEREAS, County and City believe that the sale of the Real Property at competitive prices will
benefit County and City residents by providing economic development opportunities in the
southern portion of Deschutes County within the City of La Pine; and
WHEREAS, through this Agreement, County entrusts City. and City will ensure that the Real
Property will be preserved and sold for Economic Development (as defined below); and,
WHEREAS, County and City believe that City is better able to locally assess, market and
respond to prospective purchasers and Economic Development opportunities needing industrial
land in the City; and.
WHEREAS, the parties desire to enter into this Agreement to provide the terms and conditions
upon which City will list. market and promote the sale of the Real Property; and
IT IS HEREBY AGREED by and between County and City. for and in consideration of the
mutual promises and covenants contained herein, as follows:
1. Effective Date. This Agreement is effective November 1, 2014 (the "Effective Date").
2. Term/Duration. Subject to the terms and conditions of this Agreement. the term of this
Agreement will commence on the Effective Date and will continue for a term of five (5) years
unless terminated earlier pursuant to Section 8. This Agreement may be extended upon
mutual written agreement of the parties.
1 -DESCHUTES COUNTY f CITY OF LA PINE -INTERGOVERNMENTAL AGREEMENT
Deschutes County Document No. 2014-568
DC 20 14 ~ 5 6 8
3. Definitions. For purposes of this Agreement the following terms shall mean:
3.1. "Economic Development" -Efforts that seek to improve the economic well-being and
quality of life for the community by directly creating and/or retaining jobs, and
supporting or growing incomes and the tax base.
3.2. "Infrastructure" -The construction and installation of streets, sewer, water, sidewalks,
street trees, street lights, utilities, and any other City required improvements, whether
publicly or privately owned, including, without limitation, cable, telephone, gas,
electricity to serve the Real Property or any portion thereof.
3.3. "Hard Costs" -Includes, without limitation, costs associated with advertising,
marketing, promotion, negotiations, Infrastructure, permitting, taxes, insurance, real
estate commissions, title fees, title insurance fees, closing costs, and recording costs,
or any other charges associated with the Sale and/or Conveyance of the Real
Property.
3.4. "Gross Sale Price" -The overall per-sale price of Real Property or any portion thereof,
without any deductions for any Hard Costs.
3.5. "Sale" and/or "Conveyance" -Subject to the terms and conditions contained in this
Agreement, a transfer of any portion of the Real Property by any type of deed, land
sale contract, and/or a lease entered into after execution of this Agreement for a term
of 10 years or more, including, without limitation, all optional extensions or renewals.
4. Control of Real Property; Agreement to Sell/Lease. Ownership of the Real Property shall
remain with County. During the term of this Agreement, County vests in City full power and
authority for the marketing, promotion and sale negotiations for the Real Property for
Economic Development, including, without limitation, establishing the Gross Sale Price and
acceptance or rejection of an Offer (defined below), at no cost to County. City's city
manager ("City Manager") shall have the exclusive right to retain licensed real estate
broker(s) to assist City with the listing, marketing and sale of the Real Property. All offers
accepted by City shall be written and in standardized real estate purchase and sale forms,
unless otherwise prepared by competent legal counsel representing City or purchasing party
(individually and collectively the "Offer(s)"). The City Manager shall have the right and
obligation to respond in a reasonable time period to all Offers and shall have the sole
authority for accepting or rejecting all Offers for Real Property subject to this Agreement.
Upon acceptance of an Offer by City, the Offer shall be presented to County for execution of
the Offer and the applicable Sale and Conveyance documents. County shall not
unreasonably withhold, condition or delay execution of the Sale and/or Conveyance
documents necessary to complete the Sale or Conveyance, provided, however, that the
terms of the Sale and Conveyance shall have reasonable dates established for the Sale or
Conveyance.
5. Previous Purchase Option Agreement. The purchase option agreement entered into by and
between County and Cascade Divide Data Centers ("Cascade Divide"), effective August 13,
2014 (D.C. Document No. 2014-401) shall be included in this Agreement with regard to the
allocation of proceeds ("Purchase Option"). Upon the Conveyance of the portion of the Real
Property from County to Cascade Divide pursuant to the terms of the Purchase Option, the
allocation of proceeds from that sale shall be subject to the terms of Section 6 of this
Agreement.
6. Allocation of Proceeds. During the Term of this Agreement following the Sale or
Conveyance of any portion of the Real Property to a third party, the parties will each receive
the following: (i) County will receive 50% of the Gross Sale Price, and, (ii) unless otherwise
2 DESCHUTES COUNTY I CITY OF LA PINE -INTERGOVERNMENTAL AGREEMENT
Deschutes County Document No. 2014-568
agreed in writing by the parties pursuant to Section 7 below, City will be entitled to receive
the balance of the Gross Sales Price which will be subject to reduction based on any Hard
Costs paid at the Sale or Conveyance. City shall be paid directly from the proceeds at the
closing of each Sale or Conveyance.
7. Hard Costs, Gross Sales Price and Lease Value. City shall be responsible for any and all
Hard Costs incurred by City related to the Real Property. City shall not be entitled to offset
any Hard Cost from the Gross Sale Price unless otherwise negotiated and agreed to by the
parties in writing outside the terms of this Agreement. If (and only if) deemed necessary and
agreed to by the parties following each Sale or Conveyance under this Agreement, an
accounting for that transaction shall be prepared that includes the Gross Sale Price, the
addition of any Hard Costs, and the calculation of net sale proceeds for that transaction. A
Sale or Conveyance shall not include any leases existing on the Effective Date of this
Agreement, or any extensions of those leases, nor shall City be entitled to any
compensation or value related to the leases existing as of the Effective Date of this
Agreement.
8. Termination. This Agreement may be terminated at any time by the mutual written
agreement of the parties. This Agreement may be terminated by either party for any reason
or no reason upon sixty (60) days prior written notice to the other party. Termination of this
Agreement shall not affect any obligations or liabilities accrued prior to such termination.
9. Limitation. This Agreement is expressly subject to the debt limitation of Oregon counties set
forth in Article XI, Section 10, of the Oregon Constitution, and is contingent upon funds
being appropriated therefore. This Agreement is made subject to any and all applicable
federal, state, and local laws, regulations, and/or ordinances.
10. No Partnership and Authorized Representative. Neither party is, by virtue of this
Agreement, a partner or joint venturer in connection with activities carried out under this
Agreement, and shall have no obligation with respect to the other party's debts or any other
liability or obligation of the other party of whatever kind or nature except as specifically
provided herein.
10.1. County's authorized representative for purposes of this Agreement shall be the
Property and Facilities Department Director or the Director's designee.
10.2. City's authorized representative for purposes of this Agreement shall be the City
Manager or the City Manager's designee.
11. Insurance and Indemnification.
11.1. Each party will obtain and maintain insurance policies that provide adequate coverage
for all risks normally insured against by each applicable party, or be self-insured in a
manner that provides the same coverage.
11.2. To the extent permitted by the Oregon Constitution, Article XI, Section 10, and to the
extent permitted by the Oregon Tort Claims Act, ORS 30.260 to 30.300, County shall
defend, indemnify and hold harmless City and City's current and future elected
officials, officers, agents employees, and representatives harmless for, from, and
against any and all claims, demands, lawsuits, or actions for damages, costs, losses,
attorney fees and expenses, arising from County's torts, as the term "tort" is defined in
ORS 30.260(8) and for any of County's breach and/or failure to perform any of the its
representations, warranties, obligations, and/or covenants under this Agreement.
3 -DESCHUTES COUNTY I CITY OF LA PINE -INTERGOVERNMENTAL AGREEMENT
Deschutes County Document No. 2014-568
County's indemnification obligation pursuant to this Section 11.2 will survive the
termination of this Agreement.
11.3. To the extent permitted by the Oregon Constitution, Article XI, Section 10, and to the
extent permitted by the Oregon Tort Claims Act, ORS 30.260 to 30.300, City shall
defend, indemnify and hold harmless County and County's current and future elected
officials, officers, agents employees, and representatives harmless for, from, and
against any and all claims, demands, lawsuits, or actions for damages, costs, losses,
attorney fees and expenses, arising from City's torts, as the term "tort" is defined in
ORS 30.260(8) and for any of City's breach and/or failure to perform any of its
representations, warranties, obligations, and/or covenants under this Agreement.
City's indemnification obligation pursuant to this Section 11.3 will survive the
termination of this Agreement.
12. Representations. County makes no representations or warranties as to the condition of the
Real Property or its suitability for use, including, without limitation zoning designations,
public facilities and utilities, available public services, infrastructure, and environmental
conditions. City acknowledges that the Real Property shall be marketed by City and
conveyed by County as described and agreed to herein "As Is".
13. Mediation. Any disputes under this Agreement that are not resolved by the parties through
direct communication without Mediation as defined below will be promptly submitted to
Mediation in Deschutes County, Oregon, prior to the commencement of litigation. The
mediator will be named by mutual agreement of the parties or by obtaining a list of five (5)
qualified persons from the parties and alternatively striking names. The mediator will have
the duty and responsibility to assist the parties in resolving all issues submitted for
Mediation. The parties agree to use commercially reasonable efforts to cooperate to resolve
all matters in dispute with the assistance of the mediator. The expense of Mediation will be
paid as follows: The parties will share the mediator's fees and expenses equally, unless they
agree otherwise. Mediation will terminate by: a) written agreement signed by the parties, b)
determination by the mediator that the parties are at an irresolvable impasse, or c) two
unexcused absences by either party from the Mediation sessions. The mediator will never
participate in any claim or controversy covered by this Section 13 as a witness or attorney
and may not be called as a witness to testify in any proceeding involving the subject matter
of Mediation. ORS 36.100 to 36.245 will apply to the entire process of Mediation as
provided in this Section 13. The disputing party shall give the other party written notice of
the dispute. Within twenty (20) days after receipt of said notice, the receiving party shall
submit to the other a written response. The notice and response shall include a statement
of each party's position and a summary of the evidence and arguments supporting its
position. The Mediation shall occur at a mutually acceptable time and place within thirty (30)
days of the date of the disputing party's notice and thereafter as often as the parties and the
mediator reasonably deem necessary to exchange relevant information and to attempt to
resolve the dispute. Should the Mediation fail to settle such dispute within sixty (60) days of
the disputing party's notice, or if the party receiving said notice will not meet within thirty (30)
days, either party may terminate Mediation. For the purposes of this Agreement,
"Mediation" means a voluntary process in which the parties continue direct communication
with the assistance of one or more neutral persons as mediators. These mediators have no
authority to require any concessions or agreements, but will attempt to resolve any claim or
controversy arising between the parties.
14. Headings. The headings of this Agreement are for convenience only and shall not be used
to construe or interpret any provisions of this Agreement.
4 -DESCHUTES COUNTY I CITY OF LA PINE INTERGOVERNMENTAL AGREEMENT
Deschutes County Document No. 2014-568
15. Incorporation of Recitals. The recitals set forth above are hereby incorporated into and
made a part of this Agreement.
16. Applicable Law. This Agreement shall be governed by and interpreted in accordance with
the laws of the State of Oregon. Legal actions must be instituted in the Circuit Court of the
State of Oregon for the County of Deschutes.
17. Severability. Each provision contained in this Agreement will be treated as a separate and
independent provision. The unenforceability of anyone provision will in no way impair the
enforceability of any other provision contained herein. Any reading of a provision causing
unenforceability will yield to a construction permitting enforcement to the maximum extent
permitted by applicable law.
18. Remedies Not Exclusive. If either County or City defaults with regard to any provisions of
this Agreement, the defaulting party shall be liable to the other party for any damages
caused by such default. In addition to its other rights or remedies, either party may institute
any legal or equitable action (including, without limitation, an action for specific performance)
to obtain any other remedy consistent with the purpose of this Agreement.
19. Rights and Remedies are Cumulative. Except as otherwise expressly stated in this
Agreement, the rights and remedies of the parties are cumulative, and the exercise by any
party of one or more of such rights or remedies shall not preclude the exercise by it, at the
same or different time, of any other rights or remedies for the same default or any other
default by the other party.
20. Attorney Fees. In the event an action, lawsuit or proceeding, including appeal therefrom, is
brought for failure to fulfill or comply with any of the terms of this Agreement, each party
shall be responsible for their own attorney fees, expenses, costs and disbursements for said
action, lawsuit, proceeding or appeal.
21. No Waiver of Claims. No provision of this Agreement may be modified, waived, and/or
discharged unless such waiver, modification, and/or discharge is agreed to in writing by both
parties. No waiver of either party at any time of the breach of. or lack of compliance with,
any conditions or provisions of this Agreement will be deemed a waiver of other provisions
or conditions hereof.
22. Notice. Any notice required under this Agreement must be in writing. Any notice will be
deemed given when personally delivered or delivered by facsimile transmission (with
electronic confirmation of delivery), or will be deemed given three days following delivery of
the notice by U.S. mail, certified, return receipt requested. postage prepaid, by the
applicable party to the address of the other party first shown above (or any other address
that a party may deSignate by notice to the other party). unless that day is a Saturday,
Sunday, or legal holiday. in which event it will be deemed delivered on the next following
business day.
23. Entire Agreement and Signatures. This Agreement constitutes the entire agreement
between the parties concerning the subject matter of this Agreement and supersedes any
and all prior or contemporaneous negotiations, discussions, representations and/or
agreements among the parties, if any. whether written or oral, concerning the subject matter
of this Agreement which are not fully expressed herein. This Agreement may not be
5 -DESCHUTES COUNTY I CITY OF LA PINE -INTERGOVERNMENTAL AGREEMENT
Deschutes County Document No. 2014-568
modified or amended except by a writing signed by all parties to this Agreement. This
Agreement may be signed in counterparts. A fax or email transmission of a signature page
will be considered an original signature page. At the request of a party, the other party will
confirm a fax or email transmitted signature page by delivering an original signature page to
the requesting party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the
date{s) written below, but made effective for all purposes as of the Effective Date.
DATED this __day of ______" 2014.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAMMY BANEY, Chair
ANTHONY DEBONE, Vice Chair
ALAN UNGER, Commissioner
ATTEST:
Recording Secretary
6 -DESCHUTES COUNTY I CITY OF LA PINE -INTERGOVERNMENTAL AGREEMENT
Deschutes County Document No. 2014-568
DATED this __day of ______, 2014.
CITY OF LA PINE, OREGON
8y _____________________________
Name _______________________________
Title _________________
7 -DESCHUTES COUNTY I CITY OF LA PINE -INTERGOVERNMENTAL AGREEMENT
Deschutes County Document No. 2014-568
Exhibit A
The Real Property is comprised of:
On Tax Assessors Map 22-10-14
• Tax Lot 100 -Parcel 2, PP 2010-13
• Tax Lot 101 -Parcel 1, PP 2010-13
• Tax Lot 200 -Tract D, La Pine Industrial Site
• Tax Lot 302 -Parcel 3, PP 2001-41
On Tax Assessors Map 22-10-14DA
• Tax Lot 200 -Lot 3, Finley Butte Industrial Park Phase 1
• Tax Lot 300 -Lot 2, Finley Butte Industrial Park Phase 1
• Tax Lot 400 -Lot 1, Finley Butte Industrial Park Phase 1
On Tax Assessors Map 22-10-14DD
• Tax Lot 100 -Lot 13, Finley Butte Industrial Park Phase 1
• Tax Lot 200 -Lot 14, Finley Butte Industrial Park Phase 1
• Tax Lot 300 -Lot 15, Finley Butte Industrial Park Phase 1
• Tax Lot 400 -Lot 12, Finley Butte Industrial Park Phase 1
• Tax Lot 500 -Lot 11, Finley Butte Industrial Park Phase 1
• Tax Lot 600 -Lot 16, Finley Butte Industrial Park Phase 1
• Tax Lot 700 -Lot 17, Finley Butte Industrial Park Phase 1
• Tax Lot 800 -Lot 10, Finley Butte Industrial Park Phase 1
• Tax Lot 900 -Lot 9, Finley Butte Industrial Park Phase 1
• Tax Lot 1000 -Lot 8, Finley Butte Industrial Park Phase 1
• Tax Lot 1100 -Lot 7, Finley Butte Industrial Park Phase 1
• Tax Lot 1200 -Lot 6, Finley Butte Industrial Park Phase 1
• Tax Lot 1300 -Lot 5, Finley Butte Industrial Park Phase 1
• Tax Lot 1400 -Lot 4, Finley Butte Industrial Park Phase 1
On Tax Assessors Map 22-10-13B
• Tax Lot 1900 -Parcel 2, PP 2000-5
EXHIBIT A to DESCHUTES COUNTY I CITY OF LA PINE -INTERGOVERNMENTAL AGREEMENT
Deschutes County Document No. 2014-568
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