HomeMy WebLinkAboutDoc 236 - Lease - LP Industrial Park - KaufmanDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
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AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of November 12,2013
Please see directions for completing this document on the next page.
DATE: October 29,2014
FROM: James Lewis Property & Facilities 541-385-1414
TITLE OF AGENDA ITEM:
Consideration of Board signature of Document 2014-236, an Industrial Lease between Deschutes
County and Jeffrey A. Kaufinan.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
Jeffrey Kaufinan wishes to renew a lease for approximately 1.3 acres of bare land in the La Pine
Industrial Site to store and mill logs. The term ofthe renewed lease is eight months, with an option to
renew for an additional year. This site was previously leased for the same purpose prior to Mr.
Kaufinan's use; that lease expired in 2008. Mr. Kaufinan has utilized the site for the same purpose
since April 2013. The County has no immediate plans or interest from other private parties to develop
this parcel.
FISCAL IMPLICATIONS:
Annual rental income is $2,064.00 ($ 172.00/month).
RECOMMENDATION & ACTION REQUESTED:
Staff recommends signature of Document 2014-236.
ATTENDANCE: James Lewis
DISTRIBUTION OF DOCUMENTS:
One original to James Lewis for the Lessee.
DESCHUTES COUNTY DOCUMENT SUMMARY
(NOTE: This form is required to be submitted with ALL contracts and other agreements, regardless of whether the document is to be
on a Board agenda or can be signed by the County Administrator or Department Director. If the document is to be on a Board
agenda, the Agenda Request Form is also required. If this form is not included with the document, the document will be retumed to
the Department. Please submit documents to the Board Secretary for tracking purposes, and not directly to Legal Counsel, the
County Administrator or the Commissioners. In addition to submitting this form with your documents, please submit this form
electronically to the Board Secretary.)
Please complete all sections above the Official Review line.
Date: IOctober 29, 201 ~ Department: IProperty & Facilitie~
Contractor/Supplier/Consultant Name: effre A. Kaufman, Lesse
Contractor Contact: I I Contractor Phone #: 503.475.719
Type of Document: Industrial Lease
Goods and/or Services: N/A
Background &History: Jeffrey Kaufman wishes to lease approximately 1.3 acres of
bare land in the La Pine Industrial Site to store and mill logs. The term of the lease is
one year, with an option to renew for one year. This site was previously leased for the
same purpose; the lease expired in 2008. The County has no immediate plans to
develop this parcel.
Agreement Starting Date: INovember 1,20141 Ending Date: pune 30, 201 §
Annual Value or Total Payment: ~2,064.0q
N/A
Check all that apply:
D RFP, Solicitation or Bid Process
D Informal quotes «$150K)
D Exempt from RFP, Solicitation or Bid Process (specify see DCC §2.37)
N/A
Funding Source: (Included in current budget? DYes D No
If No, has budget amendment been submitted? DYes D No
Is this a Grant Agreement providing revenue to the County?
Special conditions attached to this grant:
Deadlines for reporting to the grantor:
DYes IZI No
10/28/2014
If a new FTE will be hired with grant funds, confirm that Personnel has been notified that
it is a grant-funded position so that this will be noted in the offer letter: 0 Yes 0 No
Contact information for the person responsible for grant compliance: Name:
Phone #:
Departmental Contact and Title:
Department Director Approval:
Signature Date
Distribution of Document: One original to James Lewis for the Lessee.
Official Review:
County Signature Required (check one): 0 BOCC Department Director (if <$25K)
o Administrator (if >$25K but <$150K; if >$150K, BOCe Order No. _____,)
Legal Review Date
Document Number 2014-236
10/28/2014
REVIEWED
LEGAL COUNSEL
INDUSTRIAL LEASE
THIS LEASE, made and entered into by and between DESCHUTES COUNTY,
a political subdivision of the State of Oregon, herein called "Lessor," and JEFFREY A.
KAUFMAN, an individual, herein called "Lessee,"
WIT N E SSE T H:
Lessor leases to Lessee approximately 1.3 acres, more or less, of real property
(the "real property") located in the La Pine Industrial Site in La Pine, Deschutes County,
Oregon, known as:
A portion of the east half of Lot 2, Block 3 of La Pine Industrial Site Phase II,
approximately 300' by 200' as depicted on the sketch attached as Exhibit A,
incorporated herein by this reference.
1. TERM AND RENEWAL. The effective date of this lease shall be November 1,
2014. or the date on which each party has signed the Lease, whichever is later,
and shall continue through June 30, 2015, a period of one (1) year, two (2)
months, unless sooner terminated. Lessee has the option to renew the Lease, at
terms to be negotiated, for an additional one (1) year by notifying Lessor in
writing sixty (60) days prior to the end of the current 12-month term.
2. POSSESSION. Lessee's right to possession and obligations under the Lease
shall commence as of the date of this Lease, except as otherwise provided
herein.
3. CONDITION OF PROPERTY. Lessor represents that it has full right, power, and
authority to enter into this Lease for the term herein granted and that the leased
real property may be used by the Lessee during the entire term for the purposes
herein set forth. If it is determined that Lessor did not have the right, power or
authority to enter into this Lease because of Lessor's failure to have properly
acquired title to the real property, or the real property is under lease to another
and Lessee has not acquired the leasehold interest of such other person{s), firm,
or corporation, this Lease shall automatically terminate.
4. RENT. Lessee shall pay to Lessor as monthly rent the sum of One Hundred
Seventy-Two Dollars ($172.00) commencing with the date specified in Paragraph
1. Rent may be prorated for the first partial month. Rent shall be payable in
advance on the first day of each month without notice or demand at the office of
the Deschutes County Property & Facilities Department, PO Box 6005, Bend,
Oregon 97708-6005, or at such other place as may be designated in writing by
Lessor.
DC 2014-236 Page 1 of 10
5. ADDITIONAL RENT. As additional rent, Lessee shall pay the following amounts
without notice or demand of Lessor:
A. All taxes and assessments upon Lessee's personal property located on the
real property.
B. All real property taxes for the leased real property, prorated to reflect the term
of this lease.
C. All charges for heat, light, power, sewage, water, garbage disposal, and other
services or utilities used by Lessee on the real property.
D. The cost of all insurance for which Lessee is required to pay.
E. All amounts which Lessee is required to reimburse Lessor for expenses
incurred by Lessor in discharging Lessee's obligations.
F. All other amounts which the Lessee is required to pay by any other provisions
of this Lease.
6. PERMITTED USE. The real property shall be used for storing and milling logs. If
this use is prohibited by law or governmental regulations, this Lease shall
terminate.
7. RESTRICTIONS ON USE. In connection with the use of the real property,
Lessee shall:
A. Obtain Lessor's written approval in advance of any development plans, layout
plans, construction, reconstruction, or alteration of improvements; or revision
of layout or construction plans for the real property.
B. Maintain the fence, improvements and structures, if any, and real property to
standards of repair, orderliness, neatness, sanitation, and safety acceptable
to Lessor, and shall not allow solid wastes to accumulate on the real property.
C. Conform to all applicable laws and regulations of any public authority
affecting the real property and the use of said real property, and correct at
Lessee's own expense any failure of compliance created through Lessee's
fault or by reason of Lessee's use of said real property.
D. Refrain from any use which would be reasonably offensive to the Lessor,
other tenants, or owners or users of adjoining real property, or which would
tend to create a nuisance or damage the reputation of the real property,
including but not limited to, creating excessive dust or noise on the real
property or maintaining a fire on the real property. Nothing herein shall be
construed to prohibit normal activities necessary to utilize the property for its
intended use.
E. Refrain from making any unlawful or offensive use of said property or to
suffer or permit any waste or strip thereof.
DC 2014-236 Page 2 of 10
F. Exercise diligence in protecting from damage the real property and property
of Lessor covered by and used in connection with this Lease.
G. Refrain from the disposal, spilling or discharging of any oil, gasoline, diesel
fuel, chemicals, or other pollutants on the leased real property. In the event of
such spills, Lessee shall undertake any and all necessary actions to contain
and remove such pollution from the leased premises.
8. LESSEE'S OBLIGATIONS. The following shall be the responsibility of the
Lessee:
A. The real property is currently not enclosed with fencing. Lessee is
responsible for installation of any fencing and/or screening.
B. Comply with land use regulations, including but not limited to, obtaining a
driveway permit.
C. Arrangement for and delivery to the real property, if necessary, of all water,
sewage, gas, electrical, and other utility services deemed necessary by
Lessee.
D. Structural repair and maintenance of any fences, buildings, water, sewage,
gas and electrical services, and other utility services on the property.
E. Any repairs necessitated by the activities or negligence of Lessee, its agents,
employees or invitees on or in connection with the real property.
F. Any repairs or alterations required under Lessee's obligation to comply with
laws and regulations as set forth in "Restrictions on Use" above.
G. Pay Lessor for any damage resulting from the activities or negligence of
Lessee, its agents, employees or invitees on or in connection with the real
property, or from the violation of any provision or provisions of this Lease.
9. INSPECTION OF REAL PROPERTY. Lessor shall have the right to inspect the
real property in the Lessee's presence at any reasonable time or times after
giving reasonable notice to Lessee.
10. REPAIRS. Lessee takes the premises in its "as is" condition. Lessee will at all
times keep the property in a safe and clean condition and make all repairs during
the term of the Lease necessary to maintain the premises.
11. INDEMNIFICATION OF LESSOR. Lessee shall be responsible for any and all
injury to any and all persons or property caused directly or indirectly by reason of
any and all activities by Lessee on or in connection with the leased property; and
further agrees to indemnify, defend, and save harmless the Lessor, its officers,
agents, and employees from and against all claims, suits, actions, damages,
costs, losses and expenses in any manner resulting from, arising out of, or
connected with any such injury.
DC 2014-236 Page 3 of 10
12. ENVIRONMENTAL POLLUTION. The provIsions of this section supplement
other lease provisions that might apply concerning Lessee's obligations,
responsibilities and liabilities for environmental pollution, present and future, and
for compliance with the laws, regulations or orders of any governmental agency
concerning environmental pollution, present and future, on the premises. To the
extent that the provisions of this section conflict with any such other provisions,
the provisions of this section shall control.
Where terms of this section use terms that are found in applicable state and
federal environmental pollution laws, those terms shall have the same meaning
as they have in those state and federal laws.
Lessee acknowledges that Lessee has inspected and investigated the property
and otherwise informed itself on the condition of the premises and based upon
such inspection and investigation, Lessee is satisfied that the premises does not
now contain any amounts of hazardous, toxic, radioactive or other substances for
which a property owner or operator may be made liable under state or federal
environmental pollution or health and safety laws. Accordingly, Lessee agrees
that as between the Lessor and Lessee, Lessee will assume responsibility and
liability as set forth below in the removal and indemnification provision for any
release or discharge of hazardous, toxic, radioactive or other dangerous
substances regulated under state or federal pollution control laws found hereafter
on, in or about the real property.
Except as undertaken in the ordinary course of conducting its business, Lessee
covenants that during the term of this Lease, Lessee will not generate, store,
process or dispose of or release or discharge into the environment hazardous,
toxic, radioactive or other dangerous substances on or about the leased
premises in any amount, nor will Lessee allow such prohibited activities to take
place on the leased property during the lease term.
Lessee covenants to report, contain and remove in conformance with applicable
state and federal law any releases of hazardous, toxic, radioactive or other
substances regulated under state or federal pollution control laws that are found
on or in the premises during the term of this Lease or any releases of such
materials found off the premises that originated from the premises during the
lease term and to be responsible for the cost of removal of such substances.
Lessee agrees to indemnify, defend and hold the County, its officers, agents and
employees harmless from and against any claims, demands, causes of action or
suits for damages, reimbursement or any other cost of compliance, including, but
not limited to, remedial action costs, removal costs, natural resources damages,
penalties, punitive damages, interest costs, attorney fees and damages of any
kind to third parties, arising from the discharge, release or threatened release on
or in the premises of any hazardous, toxic or radioactive substances occurring
during the term of this Lease or any extension thereof. For the purposes of this
section, any release of hazardous substances discovered on the premises during
the term of this Lease shall be deemed to have occurred after the execution of
this Lease.
DC 2014-236 Page 4 of 10
The obligations, responsibilities and liabilities of this section are continuing
obligations, responsibilities and liabilities and shall not be extinguished by the
termination of this Lease.
13. PARTIAL TAKING. If a portion of the leased real property is condemned and the
paragraph entitled "Total Taking" does not apply, the Lease shall continue on the
following terms:
A. Lessor shall be entitled to all of the proceeds of condemnation and Lessee
shall have no claim against Lessor as a result of the condemnation.
B. Lessor shall proceed as soon as reasonably possible to make such repairs
and alterations to the real property as reasonably practicable to return the
real property to its condition existing at the time of the condemnation, but in
no event shall Lessor be liable for repairs in excess of condemnation
proceeds awarded to and received by Lessor. The Lessor may, but shall not
be required to, perform alterations prior to the actual taking after the portion
to be taken has been finally determined. Rent shall be abated to the extent
the real property is untenable during the period of alteration and repair.
C. After the date on which title vests in the condemning authority or an earlier
date on which alterations or repairs are commenced by Lessor to restore the
balance of the property in anticipation of taking, the rent shall be reduced
commensurately with the reduction in value of the leased real property as an
economic unit on account of the partial taking. If the parties are unable to
agree upon the amount of the reduction of rent, the amount shall be
determined by arbitration.
D. If a portion of the Lessor's real property not included in the leased real
property is taken and severance damages are awarded on account of the
leased real property, or an award is made for detriment to the leased real
property as a result of change of grade of adjacent streets or other activity by
a public body not involving a physical taking of any portion of the land, this
shall be regarded as a partial condemnation of which subparagraphs (A) and
(C) of "Partial Taking" above apply, and the rent shall be reduced to the
extent of diminution of value of the real property as though a portion had
been physically taken.
14. TOTAL TAKING. If a condemning authority takes all of the leased real property
or a portion sufficient to render the real property reasonably unsuitable for the
use which the Lessee was then making of the real property, the Lease shall
terminate as of the date the title vests in the condemning authority. Lessor shall
be entitled to all of the proceeds of condemnation and the Lessee shall have no
claim against Lessor as a result of the condemnation.
15. SALE IN LIEU OF CONDEMNATION -DEDICATION TO THE PUBLIC. Sale of
all or part of the leased real property to a purchaser with the power of eminent
domain in the face of a threat or probability of the exercise of the power shall be
treated for the purpose of this Paragraph as a taking by condemnation.
Dedication to the public, sale, or transfer of all or a portion of the real property of
DC 2014-236 Page 5 of 10
Lessor to the State of Oregon, its political subdivisions or United States of
America, shall be treated as a total or partial taking, as applicable.
16. LIENS.
A. Except with respect to activities for which the Lessor is responsible, the
Lessee shall pay as due all claims for work done on and for services
rendered or material furnished to the leased real property and shall keep the
real property free from any liens. If Lessee fails to pay any such claims or to
discharge any lien, Lessor may do so and collect the cost as additional rent.
Any amount so added shall bear interest at the rate of nine per cent (9%) per
annum from the date expended by Lessor and shall be payable on demand.
Such action by Lessor shall not constitute a waiver of any right or remedy
which Lessor may have on account of Lessee's default.
B. Lessee may withhold payment of any claim in connection with a good faith
dispute over the obligation to pay, so long as Lessor's property interests are
not jeopardized. If a lien is filed as a result of nonpayment, Lessee shall,
within thirty (30) days after knowledge of the filing, secure the discharge of
the lien or deposit with Lessor cash or a sufficient corporate surety bond or
other surety satisfactory to Lessor in an amount sufficient to discharge the
lien plus any costs, attorney fees and other charges that could accrue as a
result of a foreclosure or sale under a lien.
17. INSURANCE.
A. It is expressly understood that Lessor shall not be responsible for carrying
insurance on any property owned by Lessee.
B. Lessee will be required to carry fire and casualty insurance on Lessee's
personal property on the Premises.
C. Lessee shall carry commercial general liability insurance, on an occurrence
basis; with a combined single limit of not less than $1,000,000 each occurrence,
with an annual aggregate limit of $2,000,000. Lessee shall provide Lessor with a
certificate of insurance, as well as an endorsement, naming Deschutes County,
its officers, agents, and employees and volunteers as an additional insured.
There shall be no cancellation, termination, material change, or reduction of limits
of the insurance coverage during the term of this lease.
18. ASSIGNMENT AND SUBLEASE. If the Lessee, through voluntary sale or
transfer, or through enforcement of contract, foreclosure, tax sale, or other valid
legal proceeding, shall cease to be the owner of the commercial business
situated on the real property described in this Lease, and is unable to furnish
adequate proof of ability to redeem or otherwise reestablish title to said
improvements, this Lease shall be subject to cancellation. But, if the person to
whom such commercial business shall have been transferred in either manner
above provided, is reasonably qualified as a Lessee, and is willing that his future
occupancy of the real property shall be subject to the terms and provisions of this
Lease, his continued occupancy of the real property shall be authorized by a
DC 2014-236 Page 6 of 10
Lease to him, which shall be for the unexpired term of this Lease, unless the
parties agree to a new Lease term.
Lessee may sublease the use of the real property covered under this Lease and
the operation of concessions and facilities authorized in accordance with the
terms and provisions of this Lease subject to the written consent of the Lessor,
which shall not be unreasonably withheld. The Lessee shall continue to be
responsible for compliance with all conditions of this Lease by persons to whom
such real property may be sublet.
19. DEFAULT. The following shall be events of default:
A. Failure of Lessee to pay any rent or other charge within ten (10) days after it
is due.
B. Failure of Lessee to comply with any term or condition or fulfill any obligation
of the Lease within thirty (30) days after written notice is mailed by Lessor
specifying the nature of the default with reasonable particularity. If the default
is in such a nature that it cannot be completely remedied within the thirty (30)
day period, this provision shall be complied with if Lessee begins correction
of the default within the thirty (30) day period and thereafter proceeds with
reasonable diligence and in good faith to effect the remedy as soon as
practicable, so long as a full cure of said default is made within ninety (90)
days of the original written notice.
20. REMEDIES ON DEFAULT.
A. In the event of a default, the Lease may be terminated at the option of the
Lessor by notice in writing to Lessee. The notice may be given at any time
after the grace period for default given under the paragraph entitled "Default."
If the property is abandoned by Lessee in connection with a default,
termination shall be automatic and without notice.
B. In any of the above set out cases or events, the Lessor, or those having the
Lessor's estate in the real property, lawfully at its option, may enter into and
upon said demised real property and every part thereof, and repossess the
same of Lessor's former estate, and expel said Lessee and those claiming by
and through or under Lessee, and remove Lessee's effects at Lessee's
expense, forcibly if necessary. and store the same, without being deemed
guilty of trespass and without prejudice to any remedy which otherwise might
be used for arrears of rent or preceding breach of covenant.
C. The foregoing remedies shall be in addition to, and shall not exclude, any
other remedy available to Lessor under applicable law.
21. PERSONAL PROPERTY.
A. All personal property placed upon the leased real property during the term of
this Lease by Lessee shall remain the property of Lessee except as
otherwise provided herein.
DC 2014-236 Page 7 of 10
B. Upon abandonment, termination, revocation, or cancellation of this Lease,
Lessee shall remove from the real property, within a reasonable time, all
personal property of Lessee. If Lessee fails to remove all or part of such
personal property within thirty (30) days, then all such personal property shall
become the property of Lessor.
22. SURRENDER OF LEASED PREMISES. Upon abandonment, termination,
revocation or cancellation of this Lease, the Lessee shall surrender the real
property to Lessor in the same condition as the real property was on the date of
possession, except, that nothing in this lease shall be construed as to relieve
lessee of lessees' affirmative obligation to surrender said premises in a condition
which complies with all local, state or federal environmental laws, regulations and
orders applicable at the time of surrender. Upon Lessor's written approval,
Lessee may leave site improvements authorized by any land use permit.
Lessee's obligation to observe and perform this covenant shall survive the
expiration or the termination of the Lease.
23. NOTICES. Any notice by Lessee to Lessor or Lessor to Lessee must be served
by certified or registered mail, postage prepaid, addressed to the other at the
address given below or at such other address as either may designate by written
notice. Notice shall be deemed effective three (3) calendar days following posting
at a U.S. Post Office as herein described.
LESSOR: LESSEE:
Deschutes County -Property & Facilities Jeffrey A. Kaufman
Department
Susan Ross, Director PO Box 4393
PO Box 6005 Sunriver, OR 97707
Bend, OR 97708-6005 Phone: 503-475-7196
Fax: 541-317-3168
24. NONWAIVER. Waiver by either party of strict performance of any provision of
this Lease shall not be a waiver of or prejudice the party's right to require strict
performance of the same provision in the future or of any other provision.
25. PARTNERSHIP. Lessor is not by virtue of this Lease a partner or joint venturer
with Lessee in connection with activities carried on under this Lease, and shall
have no obligation with respect to Lessee's debts or any other liabilities of each
and every nature.
26. LESSEE NOT AN AGENT OF COUNTY. It is agreed by and between the parties
that Lessee is not carrying out a function on behalf of the County, and that
County does not have the right of direction or control of Lessee's operation under
this Lease or to exercise any control over the activities of Lessee.
27. LAND USE PERMIT. This Lease does not constitute a land use permit, nor does
acceptance of this Lease by Lessor constitute approval of any legislative or
quasijudicial action required as a condition precedent to use of the land for the
intended purpose. Lessee's possession of the property pursuant to Paragraph 2
for the use described in Paragraph 6 of this Lease and obligations under this
DC 2014-236 Page 8 of 10
Lease are contingent upon the approval of any necessary land use permits. If
Lessee is unable or unwilling to meet conditions of land use permits, Lessee has
the right to terminate this Lease, with thirty {3~) days written notice to Lessor.
28. LESSOR'S RIGHT TO CURE DEFAULTS. If Lessee fails to perform any
obligations under this Lease, Lessor shall have the option, but not the obligation,
to do so after thirty {3~) days' written notice to the Lessee. All of Lessors
expenditures to correct the default shall be reimbursed by Lessee on demand
with interest at the rate of nine per cent (9%) per annum from the date of
expenditure by Lessor. In the event that Lessee, upon using Lessee's best
efforts, is unable to obtain all required land use permits, Lessee may terminate
this Lease upon written notice to Lessor. Lessee shall remain liable to Lessor
following termination for all unpaid lease payments, charges and damages due
prior to termination and any damages, expenses, costs or losses suffered by
Lessor due to Lessee's termination of this Lease.
29. LITIGATION FEES AND EXPENSES. In the event any action, suit or proceeding,
including appeal therefrom, is brought for failure to observe any of the terms of
this Lease, each party shall be responsible for their own attorney's fees,
expenses, costs and disbursements for any such action, suit, proceeding or
appeal.
30. TIME IS OF THE ESSENCE. Time is of the essence of each and every provision
of this Lease.
31. SEVERABILITY. The parties agree that if any term or provision of this Lease is
declared by a court of competent jurisdiction to be void, invalid or unenforceable,
the validity of the remaining terms and provisions shall not be affected, and the
rights and obligations of the parties shall be construed and enforced as if this
Lease did not contain the particular term or provision held to be void, invalid or
unenforceable.
32. AUTHORITY. The signatories to this Lease covenant that they possess the legal
authority to bind their respective principals to the terms, provisions and
obligations contained within this agreement.
33. GOVERNING LAW. This Lease shall be governed by and interpreted in
accordance with the laws of the State of Oregon.
34. ENTIRE AGREEMENT. This Lease constitutes the entire agreement between
the parties concerning the subject matter hereof and supercedes any and all prior
or contemporaneous negotiations and/or agreements between the parties,
whether written or oral, concerning the subject matter of this Lease which are not
DC 2014-236 Page 9 of 10
fully expressed herein. This Lease may not be modified or amended except by a writing
signed by all parties to this Lease.
LESSOR:
Date: __________
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
TAMMY BANEY, CHAIR
ANTHONY DEBONE, VICE CHAIR
ATTEST:
Recording Secretary ALAN UNGER, COMMISSIONER
LESSEE:
Date: /{J-~Er'-/£
DC 2014-236 Page 10 of 10