HomeMy WebLinkAboutDoc 639 - Lease - La Pine DisposalDeschutes 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 27, 2010
Please see directions for completing this document on the next page.
DATE: October 8, 2010
FROM: Teresa Rozic Property & Facilities 385-1414
TITLE OF AGENDA ITEM:
Consideration of signature of Document 2010-639, an Industrial Lease between Deschutes County,
Lessor, and La Pine Dispoal & Recycling, Inc., as Lessee.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
Deschutes County owns and manages property in the La Pine Industrial Site. La Pine Disposal &
Recycling, Inc. wishes to lease approximately three acres of bare land to store equipment. This site was
previously leased as a site to stage unoccupied manufactured homes. The last lease was terminated
effective September 20, 2009.
The term of the proposed lease is one year, with an option to renew for an additional year. The County
has no immediate plans to develop this parcel.
FISCAL IMPLICATIONS:
$4,920.00 annual rental income
RECOMMENDATION & ACTION REQUESTED:
Staff recommends signature of Document 2010-639.
ATTENDANCE: Teresa Rozic
DISTRIBUTION OF DOCUMENTS:
One original to Teresa Rozic 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 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.)
Date:
10/08/2010
Please complete all sections above the Official Review line.
Department:
Contractor/Supplier/Consultant Name:
Contractor Contact:
Stu Martinez
Type of Document: Industrial Lease
Property & Facilities
La Pine Disposal & Recycling, Inc.
Contractor Phone #:
541.536.1194
Goods and/or Services: One-year lease with option to renew for one year.
Background & History: La Pine Disposal & Recycling, Inc. wishes to lease
approximately three acres of bare land to store equipment. This site was previously
leased as a site to stage unoccupied manufactured homes. The County has no
immediate plans to develop this parcel.
Agreement Starting Date:
11/01/2010
Annual Value or Total Payment:
Ending Date:
$4,920.00 annual rental income
IL:er - + t o ! v'1 10 ii
El In rance Certificate Received (check box)
Insurance Expiration Date:
10/31/2011
Check all that apply:
❑ RFP, Solicitation or Bid Process
❑ Informal quotes (<$150K)
❑ Exempt from RFP, Solicitation or Bid Process (specify — see DCC §2.37)
Funding Source: (Included in current budget? ❑ Yes ❑ No
If No, has budget amendment been submitted? ❑ Yes ❑ No
Is this a Grant Agreement providing revenue to the County? ❑ Yes ❑ 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: ❑ Yes ❑ No
10/8/2010
Contact information for the person responsible for grant compliance: Name:
Phone #:
Departmental Contact and Title: Teresa Rozic
Department Director Approval:
Phone #: 385-1414
It)16S/2010
Signature Date
Distribution of Document: One fully signed original to Teresa Rozic for the Lessee.
Official Review:
County Signature Required (check one): ❑ BOCC ❑ Department Director (if <$25K)
❑ Administrator (if >$25K but <$150K; if >$150K, BOCC Order No. )
Legal Review Date
Document Number 2010-639
10/8/2010
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 LA PINE DISPOSAL
& RECYCLING, INC., an Oregon corporation, herein called "Lessee,"
WITNESSETH:
Lessor leases to Lessee 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:
Lots 8 and 9 and the northeast corner of Lot 2 that is approximately 410 feet by
106.24 feet, Block 3 of La Pine Industrial Site Phase II.
1. TERM AND RENEWAL. The term of this Lease shall commence as of November 1,
2010, and continue through October 31, 2011, a period of one (1) year, unless
sooner terminated. Lessee has the option to renew the Lease at the same terms as
the original lease 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 $410.00 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, 14 NW Kearney Avenue, Bend, Oregon 97701, or at such other place
as may be designated in writing by Lessor.
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.
2010-639 Page 1 of 9
DC 2010•639
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 short-term storage of
equipment associated with Lessee's disposal business. 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.
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, wood waste products, 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.
2010-639 Page 2 of 9
8. LESSEE'S OBLIGATIONS. The following shall be the responsibility of the Lessee:
A. The real property is currently enclosed with fencing. Lessee is responsible for
installation of any additional fencing and/or screening.
B. Arrangement for and delivery to the real property, if necessary, of all water,
sewage, gas, electrical, and other utility services deemed necessary by Lessee.
C. Structural repair and maintenance of any fences, buildings, water, sewage, gas
and electrical services, and other utility services on the property.
D. Any repairs necessitated by the activities or negligence of Lessee, its agents,
employees or invitees on or in connection with the real property.
E. Any repairs or alterations required under Lessee's obligation to comply with laws
and regulations as set forth in "Restrictions on Use" above.
F. 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 in-
jury.
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.
2010-639 Page 3 of 9
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 maybe 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.
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
2010-639 Page 4 of 9
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 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
2010-639 Page 5 of 9
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 Tess than $500,000 each occurrence, with
an annual aggregate limit of $1,000,000. 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 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
2010-639 Page 6 of 9
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 pro-
vided herein.
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
2010-639 Page 7 of 9
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:
Deschutes County
Attn: Susan Ross
14 NW Kearney Avenue
Bend, Oregon 97701
(541) 383-6713
LESSEE:
La Pine Disposal & Recycling Inc.
Attn: Stu Martinez
PO Box 2669
La Pine, OR 97739
(541) 536-1194
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 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 (30) 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 (30) days' written notice to the Lessee. All of Lessor's 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.
2010-639 Page 8 of 9
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 fully
expressed herein. This Lease may not be modified or amended except by a writing
signed by all parties to this Lease.
LESSOR:
Date:
ATTEST:
Recording Secretary
LESSEE:
BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
DENNIS R. LUKE, CHAIR
ALAN UNGER, VICE CHAIR
TAMMY BANEY, COMMISSIONER
Date: 0%±G4-1& a0l 0
LA PINE DISPOSAL & RECYCLING, INC.
By:
By:
2010-639 Page 9 of 9