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HomeMy WebLinkAboutDoc 570 - Right of Way License - DRWDeschutes 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 September 7, 2011 Please see directions for completing this document on the next page. DATE: August 29,2011 FROM: George Kolb, Interim Road Department Director Road 541-322-7113 TITLE OF AGENDA ITEM: Consideration of Signature of Document No. 2011-570, a License to Use the Right-of-Way for Landscaping Purposes to the Deschutes River Woods Neighborhood Association. PUBLIC HEARING ON THIS DATE? NO. BACKGROUND AND POLICY IMPLICATIONS: Misha Williams, President of the Deschutes River Woods Neighborhood Association approached the Road Department about the possibility of installing landscaping on two comers of intersection of Baker Road and Lakeview Drive. The reasons for the landscaping is because of the way the intersection was platted, there is a lot of empty space within the right of way, and the Neighborhood Association wants to clean it up and also stop the cut-through traffic that occurs there. Frank Pennock had originally tried to install the landscaping but had gotten resistance from a neighboring landowner. Ms. Williams has worked with that property owner and obtained written permission from him to install the landscaping. The letter of permission will be attached to the permit. This type of permit is allowed per Deschutes County Code 12.40, and would help clean up the intersection. If there were any problems in the future with the landscaping, it would be removed by the Neighborhood Association its their expense. FISCAL IMPLICATIONS: None. The cost of installation and maintenance will be the responsibility of the Neighborhood Association. RECOMMENDATION & ACTION REOUESTED: Move approval of Board Signature on Document No. 2011-570, a License to Use the Public Right of Way for Landscaping Purposes to the Deschutes River Woods Neighborhood Association. ATTENDANCE: George Kolb, Interim Department Director 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: !August 26, 20111 Department: IRoadl Contractor/Supplier/Consultant Name: Deschutes River Woods Nei !Associationl Contractor Contact: IMisha Williamsl Contractor Phone #: 1541-382j 105611 Type of Document: License to Use the Public Right-of-Way Goods and/or Services: This document allows the Deschutes River Woods Neighborhood Association to install and maintain landscaping within the public right-of­ way at the intersection of Baker Road and Lakeview Drive Background & History: Misha Williams, President of the Deschutes River Woods Neighborhood Association approached the Road Departement about the possibility of installing landscaping on two corners of intersection of Baker Road and Lakeview Drive. The reasons for the landscaping is that because of the way the intersection was platted, there is a lot of empty space within the right of way and the Neighborhood Association wants to clean it up and also stop the cut-through traffic that occurs there. Frank Pennock had orginally tried to install the landscaping but had gotten resistance from a neighboring land owner. Misha has worked with that property owner and gotten written permission from him to install the landscaping which will be attached to the permit. This type of permit is allowed per Deschutes County Code 12.40 and would help clean up the intersection. If there are any problems in the future with the landscaping, it would be removed by the Neighborhood Association at their expense. Agreement Starting Date: ISeptember 7,20111 Ending Date: INIAl Annual Value or Total Payment: INIAl D Insurance Certificate Receiied (CieCk box) Insurance Expiration Date: 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) Funding Source: (Included in current budget? DYes D No 8/26/2011 --------------------- If No, has budget amendment been submitted? DYes D No Is this a Grant Agreement providing revenue to the County? DYes D No 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: D Yes No Contact information for the person responsible for grant compliance: Name: Phone#: Departmental Contact and Title: George Kolb, Interim Road Department Director Phone #: 541-322-7113 Department Director Approval: ~ t94~!u Signature Distribution of Document: copy of the document to Sheila Odie, Road Department (ext. 7148) Official Review: County Signature Required (check one): 0 SOCC Department Director (if <$25K) o Administrator (if >$25K but <$150K; if >$150K, SOCC Order No. ____---I) Legal Review Date Document Number 8/26/2011 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 Deschutes River Woods Neighborhood Association, 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 at the intersection of Baker Road and Lakeview Road. 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 properly 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 6. Permitted Use. The Licensee may utilize the licensed real property described in Exhibit "A" attached hereto and by this reference incorporated herein, entitled "Baker/Lakeview Intersection Plan" 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. Licensee shall maintain a 10 foot buffer zone between the landscaping and the pavement edge. C. Maintain the real property to standards of repair, orderliness, neatness, sanitation and safety acceptable to Licensor. D. 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. E. 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. F. Refrain from making any unlawful or offensive use of said property or to suffer or permit any waste or strip thereof. G. 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 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 Licensor's 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 Page 2 of 6 -License to Use Right of Way inspection and investigation, Licensee 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, 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 federal pollution control laws found hereafter on, in or about the premises. 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 ha(mless 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. 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 Page 3 of 6 -License to Use Right of Way a waiver of any right or remedy, which Licensor may have on account of Licensee's default. 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 {3~) 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"; or E. 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 real property and every part thereof, and repossess the same of Licensor's former estate, and expel said Licensee and those claiming by and through or under Licensee, and remove Licensee's effects at Licensee'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 license fees or preceding breach of covenant. Page 4 of 6 -License to Use Right of Way 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 all 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 Licensee to Licensor or Licensor to Licensee 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 Deschutes River Woods Neighborhood Ass. 61150 SE 27th Street PO Box 9431 Bend, OR 97702 Bend, OR 97708-9431 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 Licensor 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 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 ________, 2011. BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON TAMMY BANEY, CHAIR ANTHONY DEBONE, VICE CHAIR ALAN UNGER, COMMISSIONER LICENSEE: DATED this ~b day of l1V:-t>cl ,2011. /)../­~ddA-----~ Page 6 of 6 -License to Use Right of Way License to use Public Right-ot-Way Deschutes River Woods Neighborhood Association o 500 1,000 The information on this map was derived from clgml databases on Deschutes County's G.I.S. Care was taken in tile creation of til is map. Deschutes County cannot accept any responsibility for errOfS, omissions, or positional accuracy and, therefore, there are no warranties which accompany this proruct. Howaver, notification of anv errors will be aDl)reciated. 1,500 Printed: August 29,2011 "'p DeKhutes County Ro d Departme nt V _1ft! Oy John I\ndrrsan GS p~o.."1IlSt """".. IS'II32H IOl ErNU jOO,n,J~<tt-scn lltes or.UJ Addf'"ofit 6 1150SElnr.St 8tf1d.OR9nOl P:lArcGIS_ProjectsILandscaping Baker/Lakeview In rsection Plan (I) Plant List Key: ------..N0-Golden Current (2) Bearded Ir is (8-10 rhizomes) o Mt. Atlas or Mat Daisy (3) <> C:0 Mounded areas -mulched w/rock ..Purple Sand Cherry (3) ~' .. ~ Blue Fescue (8-10) ..~~ Bearberry or Kinnlck lnn lck (5) ~,' 3/4 minus and/or Ballast Rock 0-Russian Sage (4) + Indian Rice Grass (4-5) t Penstemon (3) No Shooting Zone Sign Yarrow. blue flax . snow-In­ summer. wooly thyme peren­ nials planted In this area r ~ ;­ < ~. ~~~t Buffer Zone ;::g Between Landscape and Pavement Edge Q. ~ ., ~ Baker Road (Stop Sign) +~______________----­ ~l Submitted by: Laura Chapman & Mlsha Williams Not Drawn to Scale Exhibit "A­ Page 3 of5 DRW Baker/Lakeview Intersection Plan (I) Submitted by: laura Chapman and Misha Williams November 2010 Plants were selected for being fire resistant, water-wise and deer resistant. They also add a variety of textures and colors to the landscape. Golden current and purple sand cherry are deciduous. Russian sage, penstemon and bearded iris are perennials and may be cut-back in the winter. We are recommending that the "No Shooting Zone" sign be placed on a 4x4 pressure treated post as it is now attached to a cherry timber that is deteriorating and will soon fall over. This site currently has broken concrete placed by the adjacent homeowner as a deterrent for vehicles sliding into his chain link fencing. Some of this concrete material will need to be removed and some can be incorporated into the base of the mounds we have proposed for the site. Mounds will not be more than two-feet high at their highest point. Taller growing plants have been located to the rear -closer to the fence, to preserve drivers Sight-lines. Several large boulders are proposed to be placed for contrast and for protection of the landscape and fence. Other items needed to complete the project: • Starter fertilizer • Bark mulch (placed directly around base of plants for moisture retention) • Rock mulch (3/4 minus [possibly cinder]and/or ballast rock or river rock) • Boulders (5) of varying sizes • Approximately 5-yards of topsoil for mounds • Compost Baker/Lakeview ~ .ersection Plan (II) N <III Haller Residence Fence Une ~ ~IO ~.::J0t Buffer Zone Betwee~"t;ndscape and Pavement Edge "'Om OJ x (Q~CD _ ."",g; o = -:t>Ul ; Plant List Key: • Cranberry Cotoneaster (3) o Russian Sage (4) Penstemon (4) Blue Fescue (12-20) ~Existing Rabbit Brush & Natlve V Current shrubs-to be pruned back. -+ Indian Rice Grass (5) Submitted by: Laura Chapman & Mlsha Williams C=:)Mounded Area ..m.Bearberry or Klnn lklnnlck (5) Not Drawn to Scale~,~ ~,~ Exhibit -A­ Page 5 of 5 DRW Baker/Lakeview Intersection Plan (II) Submitted by: laura Chapman and Misha Williams November 2010 Plants were selected for being fire resistant, water-wise and deer resistant. They also add a variety of colors and textures to the Landscape. Russian sage and penstemon are perennials and may be cut-back in the winter. Cranberry Cotoneaster has a low growing mounding habit. This site currently has some medium-sized boulders that were placed there during the previous beautification effort that was not completed. These boulders will be reused and are indicated on the plan by the darker brown "blobs". The site currently has a beaten-down dirt pathway used by walkers and bicycles. This path roughly approximates the path we have shown in the plan. We recommend keeping this path in its present location and widening it to approximately 2.5 to 3-feet wide. This will create a safe, protected pathway around this corner for pedestrians and bikes. The path would be graveled with % minus base rock for ease of use and maintenance. An existing rabbit brush and native currant shrub along the fence line will be retained, but pruned so that it does not interfere with the pathway and also replenishes and reshapes it. A mounded area with a height of no more than 2-feet at the center would be placed at this site. Three1arge flat-faced bubble-basalt boulders would be evenly spaced on this mound and tilted [though still laying on the mound itself] toward the intersection at approximately 45-degrees. Upon these boulders would be affixed (using construction adhesive) the gray granite-look Formica letters [that were to be used in the former beautification project] to spell out O-R-W. Plants in front of these boulders would be low growing grasses and ground covers as indicated on the diagram. This will serve to preserve sight-lines around the corner for drivers turning from Baker to Baker Rd. Other items needed to complete this project: • Starter fertilizer • Bark mulch (placed directly around base of plants for moisture retention) • Rock mulch (3/4 minus, ballast rock and/or river rock and/or red cinders) • Approximately 5-yards of topsoil for mound • Compost • Boulders (3) large flat-faced bubble basalt To whom it may concern: The Deschutes River Woods Neighborhood Association has my permission to set up on the BakerlBakerlLakeview comer the DRW "garden" as per the plans I have seen,. The DRWNA will be reasonable for ALL upkeep and repair, including but not limited to ; weeding, fertilizing, watering (and supplying all water) graffiti removal ect. M~"5J..vlo-.lu~ ll: ~~ Print name ~~Mk---- Sign as representati ve OfDRWNA.