HomeMy WebLinkAboutDoc 112 - License - R of W - Harpers BridgeDeschutes County Board of Commissioners
1300 NW Wall Street, Suite 200, Bend OR 97701-1960
541.388.6570 Fax 541.385.3202 -www.deschutes.org
AGENDA REQUEST AND STAFF REPORT
For Board Business Meeting of: February 25, 2015
DATE: February 12, 2015
FROM: Chris Doty Road Department Phone: 541.322.7105
TITLE OF AGENDA ITEM:
Consideration for Board approval of a License Agreement with the Sunriver Owners Association
(SROA) to construct and maintain a fence in County right-of-way adjacent to Harper's Bridge.
PUBLIC HEARING ON THIS DATE? No
BACKGROUND AND POLICY IMPLICATIONS:
In the spring of2014, the SROA constructed a fence across a right-of-way previously dedicated
to Deschutes County for John Peters Road, north of Harper's Bridge (Spring River Road). The
fence location represented a relocation of a prior fence alignment approximately 20-feet to the
south.. The new fence location constricted recreational access to the river and constituted an
unpermitted obstacle within the right-of-way.
After months of discussion, the SROA has agreed to relocate the fend to the prior location.
Although also within the John Peters Road right-of-way, the prior location does not interfere
with recreational acccess previously enjoyed by the public.
The attached License Agreement (to use right-of-way) will serve as a permit to accommodate the
placement of the fence to it's prior unpermitted location.
FISCAL IMPLICATIONS:
None
RECOMMENDATION AND ACTION REQUESTED:
Approval with suggested motion: "I move to approve a License Agreement with the Sunriver
Owners Association to construct and maintain a fence in the John Peters Road right-of-way"
ATTENDANCE: Chris Doty
DISTRIBUTION OF DOCUMENTS: SROA, c/o Becki Sylvester, PO Box 3278, Sunriver,
OR 97707
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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 direcUy 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: P2/11/151 Department: IRoadl
Contractor/Supplier/Consultant Name: !Sunriver Owners Associationl
Contractor Contact: IBecki Sylvesteij Contractor Phone #:
1541.593.24111
Type of Document: License Agreement (to use right-of-way)
Goods and/or Services: License to construct and maintain a fence in John Peters
Road right-of-way.
Background & History: See agenda request/staff report
Agreement Starting Date: P2/25/1 ~ Ending Date:
Annual Value or Total Payment: 1$1 (to Countyj
o Insurance Certificate Recei,ed (CieCk box)
Insurance Expiration Date:
Check all that apply:
D RFP, Solicitation or Bid Process o Informal quotes «$150K)
r8l Exempt from RFP, Solicitation or Bid Process (specify -see DCC §2.37)
Funding Source: (Included in current budget? r8l Yes o No
If No, has budget amendment been submitted? DYes D No
Is this a Grant Agreement providing revenue to the County? DYes r8l 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: DYes D No
Contact information for the person responsible for grant compliance: Name:
2111/2015
Phone#:
Departmental Contact and Title: Chris Doty, Director,
Phone #: ~71 O~ ? Departme~t Di~ector Approval: _~V..::;··_·--_~_~_Cff7r=---j'PJ-I_·--_-__
Signa~
Distribution of Document: Chris Doty, Road Department (x7105)
Official Review:
County Signature Required (check one): 0 SOCC 0 Department Director (if <$25K)
o Administrator (if >$25K but <$150K; if >$150K, SOCC Order No. _____,
Legal Review Date
Document Number ---t-[)tt-G.!:-l.----r'2:-+0++1-!:---+}---<11---.,.-'-"'
2/11/2015
For Reeerding Stftmp Only
LICENSE AGREEMENT
(TO USE RIGHT OF WAY)
THIS LICENSE, made and entered into by and between Deschutes County, herein called
"Licensor," and Sunriver Owners Association (SROA), herein called "Licensee,"
WIT N E SSE T H:
WHEREAS, Licensee is the fee owner of the real property described in attached Exhibit "A"
("Property"), said real property being subject to and encumbered by a 60' public right-of-way
easement ("Easement"); and
WHEREAS, Licensor, on behalf of the public, maintains and exercises control over the
Easement and allows use of the Easement by the public; and
WHEREAS, Licensee has expressed concern that use of the Easement by the public exposes
Licensee to monetary claims for injury and damage; and
WHEREAS, in order to deter the public from trespassing onto real property beyond the
Easement Licensee has constructed a fence within a portion of the Easement; and
WHEREAS, Licensor has directed that Licensee's fence within the Easement be located so as
not to impede or restrict use of the Easement by the public to gain access to the Deschutes River at
Harper Bridge; and
WHEREAS, the parties to this License Agreement intend herein to state the terms under which
Licensee may construct and maintain a fence within the Easement and Licensor may continue to
maintain the Easement such that the public is afforded access to the Deschutes River at Harper
Bridge, now therefore it is agreed as follows:
TERMS:
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 construct and maintain a fence within the Easement shall
commence as of the date of this License. Pursuant to the terms and limitations of this License
Agreement, Licensee shall have exclusive right to construct and maintain a fence within the
Easement at a location authorized by Licensor. Licensee shall relocate existing fence crossing
the Easement to the approximate location depicted on Exhibit A and shall thereafter, subject to
the terms of this License, have the exclusive right to construct and maintain such fence within
the Easement.
3. Condition of Property. Licensor represents that it has full right, power, and authority to enter
into this License Agreement for the term herein granted and that the licensed real property
Page 1 of 5 -License to Use Right of Way
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. 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 constructing
and maintaining a fence in accordance with the laws of the State of Oregon and as approved
by Licensor.
6. Restrictions on Use. In connection with the use of the real property, and as applicable,
Licensee shall:
A. Obtain a utility locate and all necessary approvals or permits prior to any uses of the
property.
B. Maintain the authorized fence to standards of repair, orderliness, neatness, sanitation
and safety acceptable to Licensor.
C. 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.
D. Refrain from making any unlawful or offensive use of said property or to suffer or
permit any waste or strip thereof.
7. 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 authorized fence.
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.
8. Indemnification. Licensee shall be responsible for any and all injury to any and all persons or
property caused directly or indirectly by reason of construction and maintenance of the
authorized fence within the Easement; 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.
To the extent permitted by Article XI, Section 10, of the Oregon Constitution and the Oregon
Tort Claims Act, ORS 30.260 through 30.300, Li c ens 0 r shall defend, save, hold
harmless and indemnify Licensee and its directors,officers, employees and agents
from and against all
Page 2 of 5 -License to Use Right of Way
claims, suits, actions, losses, damages, liabilities costs and expenses of any nature resulting , from or arising out of public use of the Easement provided that the public use was for or
associated with Deschutes River access at Harper Bridge, excepting any claim which is , directly or indirectly associated with construction and maintenance of the authorized fence
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j 9. Liens.
1 A. Except with respect to activities for which the Licensor is responsible, the Licensee i shall pay as due all claims for work done on and for services rendered or material
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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
j do so and collect the cost as additional license fees. Any amount so added shall bear
iI 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,
i default. I B. Licensee may withhold payment of any claim in connection with a good faith dispute
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! over the obligation to pay, so long as Licensor's property interests are not jeopardized.
i If a lien is filed as a result of nonpayment, Licensee shall, within thirty (30) days after I 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 I, that could accrue as a result of a foreclosure or sale under a lien.
I 10. 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.
I 11. Default. The following shall be events of default: I
A. Abandonment of the licensed fence or the cessation of use of the licensed fence.
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.I C. Failure of Licensee to comply with any term or condition or fulfill any obligation of the
License within thirty (30) days after written notice by Licensor specifying the nature of
the default with reasonable particularity. If the default is in such a nature that it cannot
be completely remedied within the thirty (30) day period, this provision shall be
complied with if Licensee begins correction of the default within the thirty (30) day
period and thereafter proceeds with reasonable diligence and in good faith to effect the
remedy as soon as practicable.
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12. Termination. Said License shall terminate:
a. By mutual agreement of the parties;
b. Upon 90-days written notice by Licensor that the public interest requires the
termination of the License;
c. Upon Licensee's written notice to Licensor;
d. Upon default which is not cured in accordance with the paragraph above entitled
"Default";
e. Automatically upon vacation of the public right of way underlying the property.
13. Remedies on Default.
Page 3 of 5 -License to Use Right of Way I
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
licensed fence is abandoned by Licensee in connection with a default, termination shall
be automatic and without notice.
B. The foregoing remedies shall be in addition to, and shall not exclude, any other remedy
available to Licensor under applicable law.
14. 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.
15. 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 Road Department Sunriver Owners Association
61150 SW 27 th Street 57455 Abbot Drive
Bend, OR 97702 PO Box 3278
Sunriver, OR 97707
16. 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.
17. 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.
18. 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.
19. Time is of the Essence. Time is of the essence in each and every provision of this License.
20. 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.
Page 4 of 5 License to Use Right of Way
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21. 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 ________, 2014 f
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I BOARD OF COUNTY COMMISSIONERS
OF DESCHUTES COUNTY, OREGON
! I TAMMY BANEY, CHAIR I
I I ,I ANTHONY DEBONE, VICE CHAIR
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ALAN UNGER, COMMISSIONER
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LICENSEE: DATED this ),1 day of~r=--'--_--++-__'
Page 5 of 5 -License to Use Right of Way
EXHIBIT "A"
LICENSE TO USE RIGHT-OF-WAY. SUNRIVER OWNERS ASSOCIATION
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( / \ -J ~ \ ',/ \ " ...',/ ,~\ ,./.. \ , ......
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" I' ',--------..1,........... ~ " \'1908 CENTERLINE [If'JOHN PETERS SPUR. \ ' ...
60 FT. WIDE RIGHT-Of-WAY \',
\ ' ..., ,
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1908 RIW [IF' JOHN PETERS SPUR ............." ................. ...,--"', ------------
TAX LOT 2O-U-G6D 110 "',
SUNRIVER OWNERS ASSCCIATIDN ' ...............
AREA OF UCENSE:
POST AND POLE FENCE
ACROSS RIGHT..oF-WAY OF
1908 JOHN PETERS SPUR
,.-, -... -
/ ~--------------------/ I NI:RTH RIW LINE PER
I SUNRIVER PLATS
" <APPROXIMATE LOCATION
" ALONG SECTION LINE:),,
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SEC6 ~20S, RllE I I I 11" 11".1 I'...............,.-----------"!!I~~---------=+ j\\\ <. -I._-=-~~FENC:.~ONsT~C~:..SUNRIVERIN~~C!~~----
_ __ _ SPRlNG/RIVE,! ROAD_ __ _ _ _ f!.A~~RIDGE ---p:----------------------
DlIGINN.LY ESTAIL&£I)AS ",DWPETERSR04D"J \._--rrn-...,...-..L.--------------------------------
-~--
1908 CENTERLINE IF.DIN PETERS MAINLINE.
60 fT. WIDE RIGHT-CF'-WAY
LOCATED IN
SECTIONS 6 .. 7,
T20S, RUE, V.M.
DESCHUTES COUNTY
OREGON
-~ ~~--~ ~--.. ----~~ -~---~~--...... --...... -"..,...~-o 100 200
SCALE: ,. -100'
Riaht-of-Wa
SOOTH R/W LINE PER
CRDSSWATERS PlATS
<APPROXIMATE LCCATmN>
Deschutes
,..,~I"~<r-_~""'.""',~." _____ """:IlIiil. ________ _____________"""'__J1!I,:~~~"~~~""r7<"~"" ~_._.____
