HomeMy WebLinkAboutBike Aid Station InfoRoad Department
61150 SE 27th St . • Bend, Oregon 97702
(541) 388-6581· FAX (541) 388-2719
MEMORANDUM
Date: February 4, 2015
To: Board of County Commissioners
From: George Kolb, County Engineer
RE: Bike aid station on White Rock Loop
A bike aid station was recently installed within the public right-of-way on White Rock Loop by a resident
living on the property adjacent to the installation. The station is located outside of the required clear
zone (see attached photos) for a County road (10 feet from edge of travel lane) so it does not present a
danger to the road users but since it is in the public right-of-way, a License to Use the Right-of-Way
would be required. The bicycling community is very excited about the installation of these bike aid
stations on the area's scenic bike routes so we feel the License does need to be a requirement but it also
has to be practical and applicable to the situation. The main points of the license are:
1. Location of the aid station will require review and approval of the Road Department prior to any
installation.
2. The person who signs the license will be responsible for the upkeep of the station.
3. The station is required to be installed adjacent to the property of the license holder
4. If the person who installed the aid station moves from the present location, they will be
required to remove the bike station right-of-way. If the person does not remove the station, it
will be removed by County forces and become the property of the County.
The main issue that has come up with the license is the liability in case of an accident as a result of the
installation. Paragraph number 11 of the agreement contains language concerning the Indemnification
of the County in the event of an accident. Obtaining the required certificate of insurance would be large
expense for a citizen and they are not willing to accept the liability for any type of accident. The Road
Department has been working with Legal and Risk to come up with a solution to this issue and it was
determined that since this is a very low risk installation and is enthusiastically endorsed by the bicycling
community, the Indemnification of the Licensor could be removed from the license. Prior to removing
this paragraph, we want to get the opinion and recommendation of the Board .
EXHIBIT "A" License to use Right-of-Way
Bike Aid Station -Robert Haas
Bike Aid Station
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~~;.p.;;;..;.;.;~ The Infonnation on this map was derived from ci!jlal databases on
Deschutes CoW1ty's G.I.S. Care was taken In the creation of this
map . Deschutes County cannot accept arry responsibility for errors,
omissions, Of positional accuracy and, therefore, there are no
warranties which accompany this product. However, notification of
any errocs will be appreciated.
900 Feet
Legend
-County Roads D Deschutes River
-Other Roads Taxlots
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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 Robert Haas, herein called "Licensee,"
WIT N E SSE T H:
Licensee is hereby authorized to use the area as shown in Exhibit "A," attached hereto and by
this reference incorporated herein and together referred to as the "Property," for the purpose of the
installation and maintenance of a bike aid station for recreational purposes.
1. Term. The term of this License shall commence upon signature of all 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 Exhibit "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 and recreation. 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.
6. Permitted Use. The Licensee may utilize the licensed real property described in Exhibit "A"
attached hereto and by this reference incorporated herein, for the purpose of the installation
Page 1 of 6 -License to Use Right of Way
DC 2015~OOe
and maintenance of a bike aid station for recreational purposes 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.
G . Install the bike aid station along the frontage of the Licensee's personal property within
the public right of way . Location of the aid station will require review and approval by
the Deschutes County Road Department
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. Pay Licensor for any damage resulting from Licensee's negligence or from the violation
of the terms 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
or in1/itees on or in connection wi th 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, cests , losses and expenses in any manner resulting from ,
arising out of, or connected v"ith any such ~
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
Page 2 of 6 -License to Use Right of Way
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.
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 .. 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. Upon sale or abandonment of the personal property owned and occupied by the
Licensee,
C. 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.
D. 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 30 days' notice by Licensor;
C. Upon Licensee's written notice to Licensor;
D. Upon default which is not cured in accordance with the paragraph above entitled
"Default";
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
Page 3 of 6 -License to Use Right of Way
which otherwise might be used for arrears of license fees or preceding breach of
covenant.
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 associated with the bike aid station that is
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 associated with the bike aid station except those owned by Licensor. If
Licensee fails to remove all or part of such personal property and equipment 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.
C. Upon sale of the adjacent real property owned and occupied by the Licensee, the
Licensee shall remove. within 30 days. all equipment and other personal property tied
to the bike aid station except those owned by Licensor. If Licensee fails to remove all
or part of the materials associated with the bike aid station 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 the bike aid station 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 Robert Hass
1300 NW Wall Street 65821 Cori Lane
Bend, OR 97701 Bend, OR 97701
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
Page 4 of 6 -License to Use Right of Way
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.
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 ________, 2005.
Deschutes County
Tom Anderson, County Adminstrator
STATE OF OREGON )
) ss.
County of Deschutes )
Before me, a Notary Public, personally appeared []
DATED this __day of ____, 2015.
Notary Public for Oregon
My Commission Expires: ______
State of Oregon )
) ss.
County of Deschutes )
LICENSEE: DATED this __day of ________" 2015.
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Robert Haas
Page 5 of 6 -License to Use Right of Way
SUBSCRIBED AND SWORN to before me this __ day of _____,' 2015.
Notary Public for Oregon
My Commission Expires: ____
Page 6 of 6 -License to Use Right of Way