HomeMy WebLinkAboutSwalley Irrigation Lease AgrmtDeschutes 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 June 11, 2008
Please see directions for completing this document on the next page.
DATE: 06/10/08
FROM: Teresa Rozic Property & Facilities 385-1414
TITLE OF AGENDA ITEM:
Consideration of signature by County Administrator of Document 2008-336, a Temporary Construction
Lease with Swalley Irrigation District.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
Swalley Irrigation District is piping 1.7 miles of its open canal. Deschutes County and Swalley entered
into a temporary construction lease that expires April 15, 2009. Their construction project has been
interruped by litigation and as a result, they could not finish by the start of the current irrigation season.
Swalley cannot pull their entire water right into the system as it exists today. They must pump water
from another source to achieve adequate flow to meet their customers' needs. Swalley proposes to
place a pump in the Central Oregon Irrigation District Canal and run a temporary 18" flexible round
(not pressurized) irrigation pipe on the surface of the ground. Swalley will run the irrigation pipe
through the culvert at Hwy 97 to the end of their new pipeline and thus add 10 cfs of water to their open
canal. They are applying for an emergency permit for point of diversion change from the Oregon
Water Resources Department for this temporary use.
The original temporary construction lease is restricted to the area of the Hwy 97 crossing. Swalley
proposes to lease additional land from Deschutes County to lay approximately 1,000 linear feet of
irrigation pipe on the surface of the ground. The lease is for three months only, from June 15, 2008.
Deschutes County Code Chapter 2.05.06C.7 authorizes the County Administrator to direct the use of
county property.
FISCAL IMPLICATIONS:
Annual rental income is $450.00
RECOMMENDATION & ACTION REQUESTED:
Staff recommends signature of Document 2008-336 by the County Administrator.
ATTENDANCE: Teresa Rozic
DISTRIBUTION OF DOCUMENTS:
One fully signed original to Teresa Rozic for transmittal to 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:
06/10/08
Please complete all sections above the Official Review line.
Department:
Contact Person: Teresa Rozic,
Contractor/Supplier/Consultant Name:
Goods and/or Services: Lease
Property and Facilities
Phone #: 55-1414
Swalley Irrigation District
Background & History: Swalley Irrigation District is piping 1.7 miles of its open
canal. Deschutes County and Swalley entered into a temporary construction lease that
expires April 15, 2009. Their construction project has been interruped by litigation and
as a result, they could not finish by the start of the current irrigation season.
Swalley cannot pull their entire water right into the system as it exists today. They must
pump water from another source to achieve adequate flow to meet their customers'
needs. Swalley proposes to place a pump in the Central Oregon Irrigation District
Canal and run a temporary 18" flexible round (not pressurized) irrigation pipe on the
surface of the ground. Swalley will run the irrigation pipe through the culvert at Hwy 97
to the end of their new pipeline and thus add 10 cfs of water to their open canal. They
are applying for an emergency permit for point of diversion change from the Oregon
Water Resources Department for this temporary use.
The temporary construction lease is restricted to the area of the Hwy 97 crossing.
Swalley proposes to lease additional land from Deschutes County to lay approximately
1,000 linear feet of irrigation pipe on the surface of the ground.
Agreement Starting Date:
06/15/08
Annual Value or Total Payment:
$450.00 total rental
® Insurance Certificate Received (check box)
Insurance Expiration Date:
Check all that apply:
❑ RFP, Solicitation or Bid Process
❑ Informal quotes (<$150K)
❑ Exempt from RFP, Solicitation or Bid Process (specify — see DCC §2.37)
01/01/09
Ending Date:
09/14/08
Funding Source: (Included in current budget? ❑ Yes 7 No
If No, has budget amendment been submitted? ❑ Yes ❑ No
6/10/2008
Departmental Contact:
Teresa Rozic
Phone #:
385-1414 'Title:
Department Director Approval:
Signature
Property Specialist
Date
Distribution of Document: Include complete information if document is to be mailed.
Official Review:
County Signature Required (check one): ❑ BOCC ❑ Department Director (if <$25K)
El Administrator (if >$25K but <$150K; if >$150K, BOCC Order No. )
Legal Review Date
Document Number
6/10/2008
REVIEWED
LEGAL COUNSEL
TEMPORARY CONSTRUCTION LEASE
This Lease is made by and between DESCHUTES COUNTY, a political subdivision of the State of
Oregon ("Lessor") and SWALLEY IRRIGATION DISTRICT ("Lessee").
Lessor hereby leases to Lessee and Lessee takes from Lessor the "Premises" described as follows:
Approximately 1,000 linear feet of real property within the following described parcel situate
in the County of Deschutes, State of Oregon and described as follows:
A portion of the Southeast quarter of the Northeast quarter of Section 3, Township 17 South,
Range 12 East, W.M., as shown on Exhibit "A", attached hereto and by this reference
incorporated herein,
SUBJECT TO: All encumbrances of record and those common and apparent on the land.
The parties agree that the terms of this Lease are as follows:
1. Term. The term of this Lease shall commence as of June 15, 2008, and continue through
September 14, 2008, a period of three (3) months, unless sooner terrninated.
2. Rent. Lessee shall pay to Lessor as monthly rent the sum of One Hundred Fifty Dollars
($150.00) commencing with the date specified in Paragraph 1. Rent may be prorated for the
first partial month. Rent shall be payable on the first day of each month without notice or
demand at the office of the Deschutes County Finance Department, 1300 NW Wall Street,
Bend, Oregon 97701, or at such other place as may be designated in writing by Lessor.
3. Use of Premises. The leased real property may only be used by Lessee for laying 18"
flexible irrigation pipe upon the surface of the ground. If this use is prohibited by law or
governmental regulations, this Lease shall terminate.
4. Restrictions on Use. In connection with the use of the Premises, Lessee shall:
a) Conform to all applicable laws and regulations affecting the Premises and correct at
Lessee's own expense any failure of compliance created through Lessee's fault or by reason
of Lessee's use of the Premises. Lessee shall not be required to make any structural
changes to affect such compliance, unless such changes are required because of Lessee's
specific use.
b) Refrain from any use which would be reasonably offensive to the Lessor, other tenants,
or owners or users of adjoining property or unoccupied portions of the real property, or which
would tend to create a nuisance or damage the reputation of the real property.
c) Refrain from making any unlawful or offensive use of said property or to suffer or permit
any waste or strip thereof.
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d) Exercise diligence in protecting from damage the real property and common area of
Lessor covered by and used in connection with this Lease.
e) Be responsible for removing any liens placed on said property as a result of Lessee's use
of leased premises.
5. Lessee's Obligations. The following shall be the responsibility of the Lessee:
a) Lessee shall not cut any trees on the Premises without the prior consent of Lessor.
b) Prior to the termination of the Lease, Lessee shall restore the Premises to a condition at
least as good as existed prior to start of Lessee's construction project. Said condition to be
accepted in writing by Lessor.
c) Lessee shall not be required to make structural repairs that would place the Premises in a
better condition than at the commencement of this lease.
d) Any repairs necessitated by the negligence of Lessee, its agents, employees or invltees.
e) Any repairs or alterations required under Lessee's obligation to comply with laws and
regulations as set forth in "Restrictions on Use" above.
6. Lessor's Covenants.
Lessor covenants that it has the right to make this Lease; that possession of the Premises
will be delivered to Lessee free of other tenants and of conflicting claims; that the use of the
Premises by Lessee for the specific uses set forth in paragraph above titled "Use of
Premises" is not in violation of any federal, state or local statute, regulation or ordinance,
including the acknowledged comprehensive land use plans and regulations of the city and
county in which Premises are located; and that on paying the rent and performing its
covenants of this Lease, Lessee may enjoy the rights granted by this Lease free from rightful
interference by any third party.
7. Maintenance and Repair of Premises.
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 necessaryto
maintain the premises.
8. Environmental Pollution.
a) 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
govemmental 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.
b) 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.
Page 2 of 6 Swalley Irrigation Lease 2008-
c) 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.
d) 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.
e) 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.
f) 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, attomey 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.
g) 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.
9. 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 fumished 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 from
Lessee. Any amount so expended shall bear interest at the rate of nine percent (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
Page 3 of 6 Swalley Irrigation Lease 2008-
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.
10. 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 $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 terrn of this lease.
d) Indemnification: Lessor and Lessee shall each defend, indemnify and hold harmless the
other and be responsible for the negligent and wrongful acts of their respective employees
and invitees. Lessor's liability exposure is limited by the Oregon State Constitution, Article
XI, and Oregon Revised Statutes 30.260 through 30.300, the Oregon Tort Claims Act.
11. Casualty Damage. If the Premises or improvements thereon are damaged or destroyed by
fire or other casualty to such a degree that the Premises are unusable for the purpose
leased, and if repairs cannot reasonably by made within ninety (90) days, Lessee may elect
to cancel this Lease. Lessor shall in all cases promptly repair the damage or ascertain
whether repairs can be made within ninety (90) days, and shall promptly notify Lessee of the
time required to complete the necessary repairs or reconstruction. If Lessor's estimate for
repair is greater than ninety (90) days, then Lessee, upon receiving said estimate will have
twenty (20) days after such notice in which to cancel this Lease. Following damage, and
including any period of repair, Lessee's rental obligation shall be reduced to the extent the
Premises cannot reasonably be used by Lessee.
12. Surrender of Leased Premises. Upon abandonment, termination, revocation or cancellation
of this Lease or the surrender of occupancy of any portion of or structure on the leased
premises, the Lessee shall surrender the real property or portion thereof to Lessor in the
same condition as the real property was on the date of possession, fair wear and tear
excepted, except, that nothing in this lease shall be construed as to relieve Lessee of
Lessee's 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 that was caused by Lessee or occurred during the term of this lease. Upon
Lessor's written approval, Lessee may leave site improvements authorized by any land use
or building permit. Lessee's obligation to observe and perform this covenant shall survive
the expiration or the termination of the Lease.
Page 4 of 6 Swalley Irrigation Lease 2008-
13. Nonwaiver. Waiver by either party of strict performance of any provision of this Lease shall
not be a waiver of or prejudice of the party's right to require strict performance of the same
provision in the future or of any other provision.
14. Default. Neither party shall be in default under this Lease until written notice of its
unperformed obligation has been given and that obligation remains unperformed after notice
for fifteen (15) days in the case of the payment or for thirty (30) days in the case of other
obligations. If the obligation cannot be performed within the thirty -day period, there shall be
no default if the responsible party commences a good faith effort to perform the obligation
within such period and continues diligently to complete performance. In case of default the
non -defaulting party may terminate this Lease with thirty (30) days' notice in writing to the
defaulting party, shall be entitled to recover damages or any other remedy provided by
applicable law, or may elect to perform the defaulting party's obligation. The cost of such
performance shall be immediately recoverable from the defaulting party plus interest at the
legal rate for judgment. If Lessee makes any such expenditures as the non -defaulting party,
those expenditures may be applied to monthly rent payments(s).
15. Notices. Notices between the parties shall be in writing, effective when personally delivered
to the address specified herein, or if mailed, effective 48 hours following mailing to the
address for such party specified below or such other address as either party may specify by
notice to the other:
Lessor: Deschutes County
Attn: Susan Ross, Property & Facilities Director
14 NW Kearney Street
Bend, Oregon 97701
Phone: 383-6713
Lessee: Swalley Irrigation District
Attn: Jan Lee, Manager
64672 Cook Ave., Suite One
Bend, Oregon 97701
Phone: 388-0658
16. Assignment. Lessee shall not assign or sub -rent the premises without the prior written
consent of the Lessor, which consent shall not be unreasonably conditioned, delayed or
denied.
17. Holdover. If Lessee holds over after the end of the temn, a tenancy from month to month
shall be created at the same rental rate, and the holdover shall not be construed as an
exercise of any renewal option contained herein.
18. Attomevs' Fees. In the event a suit or action of any kind is instituted on behalf of either party
to obtain performance under this Lease or to enforce any rights or obligations arising from
this Lease, each party will be responsible for paying its own attorney fees.
19. Authority. The signatories to this agreement covenant that they possess the legal authority
to bind their respective principals to the terms, provisions and obligations contained within
this agreement.
Page 5 of 6 Swalley Irrigation Lease 2008-
20. MERGER.
THIS LEASE CONSTITUTES THE ENTIRE LEASE BETWEEN THE PARTIES. NO
WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS LEASE SHALL
BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH
WAIVER, CONSENT, MODIFICATION OR CHANGE, IF MADE, SHALL BE EFFECTIVE
ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN.
THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL
OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS LEASE. LESSOR, BY THE
SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE, HEREBY
ACKNOWLEDGES THAT LESSOR HAS READ THIS LEASE, UNDERSTANDS IT, AND
AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
LESSOR:
DATED this day of 2008.
DESCHUTES COUNTY, OREGON
LESSEE: �1
DATED this/U ay of
Dave Kanner, County Administrator
Page 6 of 6 Swalley Irrigation Lease 2008-
2008.
EY IRRIGATION D TRI
ee, Manager