HomeMy WebLinkAboutLicense for Right of WayDeschutes County Board of Commissioners
1300 NW Wall St., Suite 200, Bend, OR 97701-1960
(541) 388-6570 -Fax (541) 385-3202 -vvww.deschutes.org
AGENDA REQUEST & STAFF REPORT
For Board Business Meeting of May 9, 2012
Please see directions/or completing this document on the next page.
DATE: May 1,2012
FROM: George Kolb, County Engineer Road 541-322-7113
TITLE OF AGENDA ITEM:
Consideration of Signature of Document No. 2012-268, A License to Use the Right-of-Way between
Tholstrup Drive and South Century Drive by Oregon Water Wonderland, Unit II POA
PUBLIC HEARING ON THIS DATE? NO.
BACKGROUND AND POLICY IMPLICATIONS:
Oregon Water Wonderland, Unit II has their mailboxes and sign located within the right-of-ways of
both Tholstrup Drive and South Century Drive. When Oregon Water Wonderland II (OWWII) was
platted, the right of way for Tholstrup Drive and South Century Drive abutted each other so there was
no private land for the subdivision to place their mailboxes and sign. Over time, the Property Owners
Association has done work to clean up the area by adding decorative rock and landscaping. All of this
work was done without a permit so when OWWII came in with their latest proposal for improving the
area around the mailboxes, we required them to obtain this License to Use the Right-of-Way
FISCAL IMPLICATIONS:
None. There is no cost to the Road Department concerning the utilization of this permit
RECOMMENDATION & ACTION REQUESTED:
Move approval of Board Signature on Document No. 2012-268, granting a license to use the right-of
way between Tholstrup Drive and South Century Drive by Oregon Water Wonderland, Unit II POA
ATTENDANCE: George Kolb, County Engineer
DISTRIBUTION OF DOCUMENTS:
Copy to Sheila OdIe (ext. 7148) at the Road Department
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 returned 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: IMay1,20121 Department: IRoadl
Contractor/Supplier/Consultant Name: wa ne Clar
Contractor Contact: Bend Business Solution Contractor Phone
#: 1541-771-91011
Type of Document: License to use the pubic right-of-way
Goods and/or Services: This License will allow Oregon Water Wonderland unit \I to
install landscaping material within the right-of-ways of Tholstrup Drive and South
Century Drive
Background & History: Oregon Water Wonderland, Unit \I has their mailboxes and
sign located within the right-of-ways of both Tholstrup Drive and South Century Drive.
When Oregon Water Wonderland II (OWWII) was platted, the right of way for Tholstrup
Drive and South Century Drive abutted each other so there was no private land for the
subdivision to place their mailboxes and sign. Over time, the Property Owners
Association has done work to clean up the area by adding decorative rock and
landscaping. All of this work was done without a permit so when OWWII came in with
their latest proposal for improving the area around the mailboxes, we required them to
obtain this License to Use the Right-of-Way
Agreement Starting Date: IUpon Signatur~ Ending Date: ~
Annual Value or Total Payment: INIAl
o Insurance Certificate Received (check box)
Insurance Expiration Date: I I
Check all that apply: o RFP, Solicitation or Bid Process o Informal quotes «$150K)o Exempt from RFP, Solicitation or Bid Process (specify -see DCC §2.37)
Funding Source: (Included in current budget? 0 Yes 0 No
If No, has budget amendment been submitted? 0 Yes 0 No
Is this a Grant Agreement providing revenue to the County? 0 Yes 0 No
5/1/2012
Special conditions attached to this grant:
Deadlines for reporting to the grantor:
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: George Kolb Phone #: 541
322-7113 ~
Department Director Approval: --t~.L-+'r--':<..Jt1I'-------+---->.~"'
Si9f1atUfe
Distribution of Document: Copy to Sheila Odie (ext. 7148) at the Road Department
Official Review:
County Signature Required (check one) : !ll SOCC 0 Department Director (if <$25K)
o Administrator (if >$25K but <$150K; if >$150K, SOCC Order No. _____)
Legal Review Date (: 2 -h~t.. {W
Document Number DC 2012,-268
4/26 /201 2
For Recording Stamp Only
LICENSE
(TO USE RIGHT OF WAY)
THIS LICENSE, made and entered into by and between Deschutes County, herein called
"Licensor," and Oregon Water Wonderland, Unit II POA, herein called "Licensee ,"
WIT N E SSE T H:
Licensee is hereby authorized to use the real property, described in Exhibit "A," attached
hereto and by this reference incorporated herein and together referred to as the "Property," for the
purpose of maintaining a landscaped area in the right-of-way between Tholstrup Drive and
South Century Drive.
The Property is depicted on the map marked Exhibit "A," attached hereto and by this reference
incorporated herein.
1. Term . The term of this License shall commence upon signature of all affected parties and
continue until terminated or abandoned as provided herein.
2. Possession . Licensee's right to utilize the Property and obligations contained herein shall
commence as of the date of this License . Pursuant to the terms and limitations of this license,
Licensee shall have exclusive use and possession of the real property described in Exhibits
"A" for the purposes set forth herein.
3. Condition of Property. Licensor represents that it has full right, power, and authOrity to enter
into this License for the term herein granted and that the licensed real property may be used
by the Licensee during the entire term for the purposes herein set forth . If it is determined that
Licensor did not have the right, power or authority to enter into this License because of
Licensor's failure to have proper1y acquired jurisdiction over, or the Property is under lease or
license to another and Licensee has not acquired the leasehold interest of such other
person(s), firm, or corporation, this License shall automatically terminate. In the event of
termination under the circumstances set forth in this paragraph, Licensee shall waive any and
all claims or causes of action against Licensor.
4. Consideration. The real property herein licensed is held by Licensor for the purpose of public
interest. The consideration for said license is the payment of a one-time fee of $1 .00 .
5. Additional License Fees. As additional license fees Licensee shall pay the following amounts:
A. All real property taxes and assessments payable on the licensed real property, as a
consequence of this License .
B . All amounts which Licensee is required to reimburse Licensor for expenses incurred by
Licensor in discharging Licensee's obligations. "" .
C. All other amounts, which the Licensee is required to pay by any other provisions of this
License.
Page 1 of 6 -License to Use Right of Way
DC 20 2-26U
6. Permitted Use. The Licensee may utilize the licensed real property described in Exhibit liN'
attached hereto and by this reference incorporated herein, for the purpose of maintaining a
landscaped area in accordance with the laws of the State of Oregon.
7. Restrictions on Use. In connection with the use of the real property, Licensee shall:
A. Obtain a utility locate and all necessary approvals or permits prior to any uses of the
property.
B. Maintain the real property to standards of repair, orderliness, neatness, sanitation and
safety acceptable to Licensor.
C. Conform to all applicable laws and regulations of any public authority affecting the real
property and the use after the date of this License, and correct at Licensee's own
expense any failure of compliance created through Licensee's fault or by reason of
Licensee's use if such failure of compliance arises as a result of conditions occurring
after the date of this License.
D. Refrain from any use which would be reasonably offensive to the Licensor, or owners
or users of adjoining real property. or which would tend to create a nuisance or
damage the reputation of the real property.
E. Refrain from making any unlawful or offensive use of said property or to suffer or
permit any waste or strip thereof.
F. Exercise diligence in protecting from damage the real property and property of Licensor
covered by and used in connection with this License.
8. Licensee's Obligations. The following shall be the responsibility of the Licensee:
A. Any repairs necessitated by the negligence of Licensee, its agents, employees and
invitees to the licensed real property.
B. Any repairs or alterations required under Licensee's obligation to comply with laws and
regulations as set forth in "Restrictions on Use" above.
C. Real property at end of License period shall be in as good condition as it was in at the
beginning of the term, reasonable wear and tear excepted.
D. Licensee shall pay all real property taxes assessable and shall pay all taxes and I assessments upon any buildings, structures or improvements constructed or
maintained on the real property by Licensee, which are assessed during the lease
period.
E. Pay Licensor for any damage resulting from Licensors negligence or from the violation
of the terms of this License.
9. EnVironmental Pollution. The provisions of this section supplement other license prOVisions
that might be applied concerning the Licensee'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.
A. 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. !
B. Licensee acknowledges that Licensee has inspected and investigated the property and
otherwise informed itself on the condition of the premises and based upon such 1 inspection and investigation, Licensee is satisfied that the premises does not now I 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
Page 2 of 6 -License to Use Right of Way
1
I
pollution or health and safety laws. Accordingly, Licensee agrees that as between the
Licensor and Licensee, Licensee 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
I federal pollution control laws found hereafter on, in or about the premises.
I C. Licensee covenants that during the term of this License, Licensee 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 licensed premises in
any amount, nor will Licensee allow such prohibited activities to take place on the
licensed property during the license term.
D. Licensee 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 License or any releases of such materials found off the
premises that originated from the premises during the license term and to be
responsible for the cost of removal of such substances.
E. Licensee 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
License or any extension thereof. For the purposes of this section, any release of
hazardous substances discovered on the premises during the term of this License shall
be deemed to have occurred after the execution of this License.
F. The obligations, responsibilities and liabilities of this section are continuing obligations,
responsibilities and liabilities and shall not be extinguished by the termination of this
License.
10. Inspection of Real Property. Licensor shall have the right to inspect the real property at any
reasonable time without need for formal notice.
11. Indemnification of Licensor. Licensee 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 Licensee
on or in connection with the licensed property; and further agrees to indemnify, defend, and
save harmless the Licensor, 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.
12. Liens.
I
A. Except with respect to activities for which the Licensor is responsible, the Licensee
shall pay as due all claims for work done on and for services rendered or material
furnished to the licensed real property and shall keep the real property free from any
liens. If Licensee fails to pay any such claims or to discharge any lien, Licensor may
do so and collect the cost as additional license fees. Any amount so added shall bear
interest at the rate of nine percent (9%) per annum from the date expended by
Licensor and shall be payable on demand. Such action by Licensor shall not constitute
a waiver of any right or remedy, Which Licensor may have on account of Licensee's
default.
Page 3 of 6 -License to Use Right of Way
B. Licensee may withhold payment of any claim in connection with a good faith dispute
over the obligation to pay, so long as Licensor's property interests are not jeopardized.
If a lien is filed as a result of nonpayment, Licensee shall, within thirty (30) days after
knowledge of the filing, secure the discharge of the lien or deposit with Licensor cash
or a sufficient corporate surety bond or other surety satisfactory to Licensor 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.
13. Continuing Obligation. Said License shall be an ongoing, continuous and binding obligation
and privilege for Licensee, Licensee's successors and assigns. The protections, rights and
authority reserved to the Licensor herein shall inure to the benefit of any successor
governmental authority.
14. Default. The following shall be events of default
A. Abandonment of the licensed real property or the cessation of use of the real property
described in Exhibits "A".
B. Failure of Licensee to pay any license fees or other charge within thirty (30) days after
it Is due and written notice is given by Licensor to Licensee.
C. Failure of Licensee to comply with any term or condition or fulfill any obligation of the
License within thirty (30) days after written notice by Licensor 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 Licensee 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.
15. Termination. Said License shall terminate:
A. By mutual agreement of the parties;
B. Upon one year's written notice by Licensor that the public interest requires the
termination of the License;
C. Upon Licensee's written notice to Licensor;
D. Upon default which is not cured in accordance with the paragraph above entitled
" Default-;
E. Upon the availability of a public sewer system available to the benefited property; or
F. Automatically upon vacation of the public right of way underlying the property.
16. Remedies on Default.
A In the event of a default, the License may be terminated at the option of the Licensor
by notice in writing to Licensee. The notice may be given at any time after the thirty
(30) days grace period for default given under the paragraph entitled "Default." If the
property is abandoned by Licensee in connection with a default, termination shall be
automatic and without notice.
B. In any of the above set out cases or events, the Licensor, or those having the
Licensor's estate in the real property, lawfully at its option may enter into and upon said i real property and every part thereof, and repossess the same of Licensor's former
1 estate, and expel said Licensee and those claiming by and through or under Licensee,
1 and remove Licensee's effects at Licensee's expense, forcibly if necessary, and store
I the same, without being deemed guilty of trespass and without prejudice to any remedy
which otherwise might be used for arrears of license fees or preceding breach of
covenant.
i
I Page 4 of 6 -License to Use Right of Way
J
j
j
C. The foregoing remedies shall be in addition to, and shall not exclude, any other remedy
available to Licensor under applicable law.
17. Structures and Fixtures.
A. All equipment or other personal property placed upon the licensed real property during
the term by Licensee shall remain the property of Licensee except as otherwise
provided herein.
B. Upon abandonment, termination, revocation, or cancellation of this License, the
Licensee shall remove, within a reasonable time, all equipment and other personal
property except those owned by Licensor. If Licensee failS to remove al/ or part of such
personal property within thirty (30) days, and such additional time as is reasonable and
necessary to effect such removal as may be agreed upon by the parties, then upon
election of Licensor they shall become the property of Licensor.
18. Notices. Any notice by Ucensee to Ucensor or Ucensor to Ucensee 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.
Licensor: Licensee:
Deschutes County Oregon Water Wonderland, Unit II POA
61150 SE 2~Street 17491 Killdeer Drive
Bend, OR 97702 Bend, OR 97707
19. Nonwaiver. Waiver by either party of strict performance of any provision of this License 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.
20. Partnership. Licensor is not by virtue of this License a partner or joint venturer with Licensee
in connection with activities carried on under this License, and shall have no obligation with
respect to Licensee's debts or any other liabilities of each and every nature.
21. Land Use Permit. This License does not constitute a land use permit, nor does acceptance of
this License by Licensor constitute approval of any legislative or quasi-judicial action required
as a condition precedent to use of the land for the intended purpose.
22. Licensor's Right to Cure Defaults. If the Licensee fails to perform any obligations under this
License, the Ucensor shall have the option to do so after thirty (30) days' written notice to the
Licensee. All of the Licensor's expenditures to correct the default shall be reimbursed by the
Licensee on demand with interest at the rate of nine percent (9%) per annum from the date of
expenditures by the Licensor.
23. Licensee Not An Agent of Licensor. It is agreed by and between the parties that Licensee is
not carrying out a function on behalf of the Licensor, and Licensor does not have the right of
direction or control of the manner in which Licensee transports or disposes of materials so
long as Licensee meets criteria set forth herein.
24. Litigation Fees and Expenses. In the event an action, suit or proceeding, including appeal
therefrom, is brought for failure to observe any of the terms of this License, each party shall be
responsible for its own attorney's fees, expenses, costs and disbursements for said action,
suit, proceeding or appeal.
Page 5 of 6 -License to Use Right of Way
I
25. Time is of the Essence. Time is of the essence in each and every provision of this License.
26. Severability. The parties agree that if any term or provision of this License is declared by a
court of competent jurisdiction to be illegal or in conflict with any law, 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 the License did not contain the particular term or
provision held to be invalid.
27. Authority. The signatories to this License covenant that they have the legal authority to bind
their respective principals to the terms, provisions and obligations contained within this
License.
LICENSOR: DATED this ~day of _______, 2012.
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
ANTHONY DEBONE, CHAIR
ALAN UNGER, VICE CHAIR
TAMMY BANEY, COMMISSIONER
LICENSEE: DATED this _ day of _--:=-_____,.---, 2012. ~:nti 'o/Oo/I?
1 Page 6 of 6 -License to Use Right of WayI
J
Exhibit A License to use Public Right-of-Way
Page 1 of 5Oregon Water Wonderland Unit II -P.O.A
r----------GADWAL~DR --------~
w
CI) o o
<9
S o za::: CI)o
<t: z
t------PINTAI ~DR -----I
oa::
z
~
C/)
~ a SY,a::: 0a::: tArea to be I crw ~ <{I-Landscapeden S I
U0 0IJ.. <{ Ci
W
I
CI)
W
~
0
f, , ,I I I ILocator Map
L t" foca Ion 0 ° License
C(
~
1...0...L...__....L......J.I......_--30________--"
0 300 600 900 Feet
Legend
-County Routes
= State Highway
Printed : April 5, 2012
-Road Centerlines
Taxlots
The information on this map was derived from dgtal databases on _ Deschutes County Road DepartmentDeschutes County's G.I .S. Care was taken in the creation of this ........
map, rut it is prOliided "as is". Deschutes County cannot accept any By
responsibility Ia" errors, onissions, or positional accuracy in the dgital John ~on"Gil \pKi.iIIi5'
deta orthe underlying records . There are no warranties, ex press or PIlon. {Sol Ipn·7102
implied, includng the warranty of merchantability or fitness Ia" a ttntU .Jdm~o dtidwttLorul
Md~"IISCSl;l7'trlSt-particular purpcse, accomparrying this prodJct. Howeve<, notification _0. 0Il~7702
of arry e<rors will be appreciated. P:lArcGIS_Projectsil1cense to use RO W.OINW2
Exhibit A
Page 2 of 5
Oregon Water Wonderland Unit 2 Proposed beautification in Public Right of Way
Proposed changes between So. Century Dr. and Tholstrup Dr.
1. Remove all weeds, grasses and juniper bushes.
2. Add approx. 2 inches of decretive rock within public right of way to match existing grade. No rock
will be added to the shoulder rock along So. Century Dr. or within the natural
drainage ditch. This will allow for a clean and distinctive break between the new rock and the
existing shoulder rock of approx. 6-8 inches.
3. There will be no rock added under the drip line of all existing trees, this area will be left natural.
4. Weed cloth will not be used under proposed new rock.
5.The existing drainage will not be disturbed, see section A-A.
6. Choice of rock will be decided from one of the five photo samples provided with the help of the
County.
I
7. We would like the option of having a couple of planter areas for some perennials and or small flowers,
location to be determined. These areas will not be built up planter boxes, only bordered with
the new proposed rock at the existing dirt grade.
I
8. We would also like to propose moving the existing 6 foot diameter OWW2 sign which is mounted to
the south side of the center mailbox shelter to the east side of the adjacent mailbox shelter. See
attached plan view. This should not cause any line of sight issues for traffic on So. Century Dr.
I
Submitted by:
Dwayne Clark,
Bend Business Solution. 541-771-9101
I
Exhibit A
Page 3 of 5
\
Exhibit A
Page 4 of 5
~
\
~\
I
"I
~
\"""\'"\ \ I ~I
J
-------
Exhibit A
Page 5 of 5
~1 ~!
'\.
"
~,
\
\\;/' (, \ 1
{; \J
t,.
,~ f"'-'--
'.\'" I
I
1----,
'1I I! ;1
1 i i
, i I
I {'I
i \
1 " \
\
c,'. '" ,