Agenda Item - 2022-12-20 - Number 6.01 - Lake Oswego Rowing Club Foundation Agreement 6.1
o�c t COUNCIL REPORT
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Subject: Agreement with Lake Oswego Rowing Club Foundation (Charlie S. Brown Water
Sports Center)
Meeting Date: December 20, 2022 Staff Member: Ivan Anderholm, Director
Report Date: December 5, 2022 Department: Lake Oswego Parks & Recreation
Action Required Advisory Board/Commission Recommendation
0 Motion ❑ Approval
❑ Public Hearing ❑ Denial
❑ Ordinance ❑ None Forwarded
❑ Resolution 0 Not Applicable
❑ Information Only Comments:
❑ Council Direction
0 Consent Agenda
Staff Recommendation: Authorize City Manager to sign the Agreement
Suggested Language for Motion: Move to Authorize the City Manager to sign the Lake
Oswego Rowing Club Foundation Agreement.
Project/ Issue Relates To: Charlie S. Brown Water Sports Center facility use
Issue before Council (Highlight Policy Question):
❑Council Goals/Priorities ❑Adopted Master Plan(s) ONot Applicable
BACKGROUND
Lake Oswego Rowing Club Foundation (LORCF)(aka Lake Oswego Community Rowing) has been
a programming provider with Lake Oswego Parks & Recreation since 1997. It is a volunteer led
organization with paid employees and has expanded rowing and athletic services to the
community.
Respect. Excellence. Trust. 5evice.
503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY
Page 2
LORCF currently holds a service provider contract to provide rowing activities to the community
through Lake Oswego Parks & Recreation Department. The current service provider contract
with LOCRF places all recreation programming responsibilities with the City. The City accepted
all the payments for activity registration and distributed funds to LOCRF minus an
administrative percentage fee.
The current contract terminates December 31, 2022 and has provision for one (1) year renewal
that would terminate on December 31, 2023. LORCF exercised the option to renew, pending
finalization of the proposed Agreement. (Upon approval of the Agreement, it terminates the
current programming agreement and is retroactive to September 7, 2022).
DISCUSSION
The proposed Agreement changes the relationship of LORCF with the City from a service
provider, with income received from class registrations and use of the Water Sports Center
(WSC) during programming, to an agreement for exclusive use of the facility for specific
purposes (use of the property including the boathouse, canoe house, and docks for rowing
activities and other uses such as retail and events), with annual payments, without
programming requirements for the Parks and Recreation Dept. The proposed Agreement is for
a three -year term, with two additional three -year options for renewal.
Under the proposed Agreement:
• City provides: building, utilities, maintenance of the exterior WSC property and an
advertisement for LORCF in the Parks & Recreation activity guide.
• LORCF will provide: $26,000 annually for property use and $4,000 for an LORCF- internal
scholarship, and some interior maintenance to the WSC.
• LORCF may use WSC for: rowing programs, equipment, coaching, and associated retail
operations, events such as meetings, work parties, trainings and fundraising occasions.
LORCF is responsible for its own administration of all aspects of programming and
services including registration
Staff finds that the proposed Agreement better aligns with LORCF's desire for exclusive use of
WSC in exchange for fair compensation, removes Parks' involvement in programming, and
provides a clearer line that liability for LORCF activities on City premises lies with LORCF.
ALTERNATIVES
• Authorize the City Manager to sign the proposed Agreement.
• Do nothing and continue under current programming contract until termination date
(December 31, 2023).
• Renegotiate the current programming contract.
• Terminate current programming contract for convenience and conduct a Request for
Proposal process for WSC use, which may include programming.
Respect. Excellence. Trust. Sevice.
503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY
Page 3
FISCAL IMPACT
The fiscal impact of the proposed agreement is expected to be an increase in City revenue
(fixed annual payment as compared to variable class registration/administrative fee).
RECOMMENDATION
Approve the proposed agreement, under which the City will receive compensation to offset
maintenance costs while reducing liability, and LORCF will have exclusive use of the WSC for its
community-based rowing programming and associated activities.
ATTACHMENT
1. LORCF Agreement, with map of Charlie S. Brown Water Sports Center area
Respect. Excellence. Trust. Sevice.
503-635-0215 380 A AVENUE PO BOX 369 LAKE OSWEGO,OR 97034 WWW.LAKEOSWEGO.CITY
DocuSign Envelope ID:8852DF2B-A5EC-4DCO-ABOD-5D7F2E2DC5A3
ATTACHMENT 1
Agreement
Use of the Charlie S. Brown Water Sports Center
City: City of Lake Oswego
Attn: Parks and Recreation Dept. Director
P.O. Box 369
Lake Oswego, OR 97035
LORCF: Lake Oswego Rowing Club Foundation
Attn: President
255 Foothills Rd.
Lake Oswego, OR 97034
Subject Property: Charlie S. Brown Water Sports Center(Boathouse, Canoe Building,and Dock)
350 Oswego Pointe Drive
Lake Oswego, OR 97035
Effective Date: September 7, 2022
Whereas, City is the owner of the Subject Property, as well as the dock/walkway that accesses the
Subject Property from City's Roehr Park(see Exhibit A) and LORCF desires to use the Subject Property,
subject to the terms and provisions of this Agreement;
Now,therefore,the parties agree as follows:
1. Right to Use. During the term of this Agreement:
A. Exclusive Use: LORCF, its members, guests, and invitees shall have exclusive use of the
Subject Property, subject to the terms and limitations of this Agreement.
B. Common Right to Use: LORCF members, guests, and invitees shall have the right to use,
in common with others permitted by City and as open for general use, and subject to City's general
rules,terms and limitations on such use:
Walkway from the parking lot to the Dock/Walkway(See Exhibit A)
ii. Parking lot (see Exhibit A), for general parking, including overnight parking and
boat trailer parking, in common with other users of the parking lot
C. Keys: City shall deliver to LORCF one key each for access to the gate on the dock and
to the buildings.The keys shall be returned to City upon termination; upon termination a lock
replacement fee of$50 shall be paid by LORCF to City.
2. Limitation on Use. Use of the Subject Property shall be limited to the followinguses:
A. LORCF's recreational, experienced and competitive rowing/water sports programs and
related activities/events for both Youth and Adults. Such programs, activities and events include but are
not limited to:
LORCF classes, rentals, and launching of LORCF watercraft suitable for launching
from the Dock, e.g., rowing skulls, kayaks, etc., but not power boats.
ii. LORCF staff, participant and/or member meetings, work parties and other
gatheringsin support of LORCF programs and activities.
iii. LORCF retail sales related to LORCF's programs, activities and events, and other
water activities. DS
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iv. Other uses that relate to LORCF's programs, activities and events as authorized
in writing by the City's Parks and Recreation Director.
B. Equipment and Supplies Permitted in Subject Property
LORCF may place, use and store the following equipment and supplies in the Subject Property related
to its programs, activities and events:
Racks, boats, watercraft and associated materials, supplies and equipment(e.g.
riggers).
ii. Equipment for classes, rentals and associated materials, supplies and equipment
(e.g. erg machines, weights).
iii. Items for retail sale, as permitted under Subsection Aabove.
iv. Such other equipment and supplies that relate to LORCF's programs, activities
and events as authorized in writing by the City's Parks and Recreation Director.
Notwithstanding the above, if the City's Parks and Recreation Director determines that the use or
storage of any specific goods or items are detrimental to maintenance of the Subject Property, or the
Dock/Walkway, present an unreasonable public risk, or increase the City's insurance premium for the
Subject Property, written notice shall be given to LORCF and such items shall not be permitted to be
used or stored in the Subject Property, and if any are then currently used or stored in the Subject
Property,they shall be removed from the Subject Property within the time period stated by the Parks
and Recreation Director.
3. Maintenance of Subject Property
A. LORCF shall maintain the interior of the buildings of the Subject Property in its present
condition, subject to ordinary wear and tear; provided, however,that LORCF shall:
Provide general maintenance.
ii. Be responsible for general cleaning.
iii. Maintain as operational all lighting, includes light bulb replacement.
iv. Paint the already painted interior with similar colors and of similar or better paint
quality every 5 years.
B. City shall maintain the exterior of the buildings of the Subject Property and dock in its
present condition, subject to ordinary wear and tear; provided however, City:
shall provide ongoing exterior clean-up maintenance (river debris removal,
power-washing the building and dock, etc.) when needed.
ii. shall provide all maintenance and repairs inside and outside of the buildings.
iii. is responsible for any roof repairs.
iv. is responsible for any capital improvements, and maintenance and repair of
flotation and decking of the dock/walkway.
C. Maintenance Requests.Any request by one party to the other for maintenance or clean-
up items shall be given by phone or email as follows:
For City: Ivan Anderholm, Director 503-675-2548,ianderholm@ci.oswego.or.us
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ii. For LORCF: Sarah Hopkins, LORCF Administrator, sarah.hopkins@lorowing.com,
303-927-9735
4. Utilities
City shall be responsible for the cost of utilities that are presently provided to the Subject Property, e.g.,
electricity only.
5. City Services
In addition to the Maintenance services stated above, City shall:
A. Parks and Recreation Activities Guide: At the request of LORCF, City shall include an
advertisement(size to be determined by Parks, not less than % page)that provides basic information of
LORCF activities and contact information in the seasonal Parks and Recreation Dept.Activity Guides that
are issued for any portion of the year that this Agreement is active,generally consistent with the
following contained in the Fall 2022 Activities Guide:
GET OUTDOORS ■ vitgy Weil I O
LAKE OSWEGO Get on the river with
LOCR
COMMUNITY HOWJNOv..
f. AWL.
LOCR is a nonprofit rowing club ditering"Learn to Raw'classes.indoor rowing classes and also
experienced and competitive rowing programs for Petri youth and adults.Visit websIte For into agout now
to register,age and ability requirements,What to bring,memberships acid ether pertinent news.
www.lakeoswegarawIng.com
Charlie S.Brown Water Sports Center 350 Oswego Pointe Drive,Lake Oswego.OR 97034
Mailing Address:PO.Box 1039 Lake Oswego 0R 97034
Phone:5O3451.0480
Eimiall:infonlorewing corn
Submission of copy for the advertisement must be received at the City-established periods for receipt of
copy for its seasonal Winter/Spring, Summer and Fall Activity Guides.The content and submission
requirements shall be the same as generally applicable to other advertisers within the Activities Guides.
For the purpose of clarity and to eliminate any doubt,this Agreement does not include any class or
activity listing in the City's Activity Guides, and the Parks and Recreation Dept. will not register any
persons for LORCF's programs, activities and events, process registration, set the amount of or collect
fees, etc.
6. Compensation; Method of Payment
A. The consideration to be paid by LORCF for the use of the Subject Property and common
area, as described in Section 1,is:
To the City: $26,000.04per year, payable either in lump-sum within five days
after September 7, 2022, and on the yearly anniversary thereafter, or at LORCF's election, monthly
within five days after the seventh of each month, in the amount of$2,166.67 per month
ADS
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ii. To a LORCF-managed "scholarship"fund: $4,000 per year, deposited in a
lump-sum on September 7, 2022, and on the yearly anniversary thereafter.The purpose of the
fund is to grant funding to individuals in the Lake Oswego community for LORCF rowing program
opportunities.
B. Method of Payment
i. To the City: LORCF shall pay by check, payable to the City of Lake Oswego
and delivered to or received by mail at the Lake Oswego Parks and Recreation Department, P.O.
Box 369, Lake Oswego, OR 97034.
ii. To the "scholarship"fund:
(1). LORCF shall provide verification of allocation of the funds report
to City by its internal accounting system by either mail, at the address above, or by email to the
City's contact person stated in Section 9.
(2). LORCF shall submit a year-end report to City at each anniversary
date how the funds were used.
7. Indemnification;Taxes and Insurance
A. Indemnification.
i. LORCF shall defend, indemnify, and hold the State of Oregon, by and
through its Dept. of State Lands, CITY, its officers, agents and employees, harmless against all
liability, loss, or expenses, including attorney's fees, and against all claims, actions or judgments
based upon or arising out of damage or injury(including death)to persons or property caused by
any act or omission of an act sustained in any way in connection with the use of this Agreement
(including by participants from any program offered by LORCF and not required to be offered by
this Agreement) or by conditions created thereby, or based upon violation of any statute,
ordinance or regulation.This contractual indemnity provision does not abrogate common law or
statutory liability and indemnification to State and CITY, but is in addition to such common law or
statutory provisions.
ii. To the extent permitted by law, CITY shall defend, indemnify, and hold
harmless LORCF and its employees, officers, members,volunteers, and agents against all liability,
loss or expenses, including attorneys fees, and against all claims, actions, demands, and judgments
made or recovered against them for damages to real or tangible personal property or for bodily
injury or death to any person arising out of or in connection with this Agreement,to the extent
such damage, injury, or death is caused by the negligence or intentionally wrongful act or omission
of CITY or its employees, officers, servants, or agents, or participants in programs that are not
conducted by LORCF. CITY shall promptly notify LORCF in writing of any such claim or demand to
indemnify and shall cooperate with LORCF in a reasonable manner to facilitate the defense of such
claim.
B. Insurance
i. General Liability Insurance
Each party shall obtain upon execution of the Agreement, and shall maintain in full force and effect
for the term of this Agreement, at the party's expense, a comprehensive general or commercial
general liability policy for the protection of the party and the other party, its officers, agents, and
employees. If the insurance policy is issued on a "claims made" basis,then LORCF shall continue to
obtain and maintain coverage for not less than three years following the completion of the contract.
The policy shall be issued by a company authorized to do business in the State of Oregon, protecting cos
the party or anyone directly or indirectly employed by either of them against liability for the loss or ��
damage of personal and bodily injury, contractual liability, death and property damage, and any
other losses or damages above mentioned with limits not less than $2,000,000 per occurrence and
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$3,000,000 in the aggregate, the amounts set forth in the DSL Lease, or the limit of public liability
contained in ORS 30.260 to 30.300,whichever is greater
The insurance company shall provide the other party with a certificate of insurance and
endorsements (1) naming the other party as an additional insured (and for LORCF, additionally
naming the State of Oregon, Dept. of State Lands per the DSL Lease) providing that no acts on the
part of the insured shall affect the coverage afforded to the above policy, and providing the party
will receive 30 days written notice of cancellation or material modification of the insurance contract;
and (2)to provide a waiver of subrogation in favor of the other party and all additional insureds.
Coverage for"damage to rented premises"for the Subject Property shall be in an amount not less
than $684,000(which amount may be adjusted from time to time to reflect any change in the City's
insurable value of the Subject Property).
ii. Equipment; Personal Property
Each party acknowledges that the other party is not providing any insurance for loss or damage
to the party's equipment or personal property.
C. Taxes; Real Property Exemption
Each party shall be responsible for any real property taxes due for its property, to wit: LORCF will
be responsible for any taxes due or levied as a result of its use of the Subject Property upon the
Subject Property(or other City property as a result of this Agreement), and the City shall be
responsible for any real property taxes due for the common use property. Each party believes that
it is exempt from real property taxation.
The amount to be paid by LORCF for use of the Subject Property is below the market rate for the
right of occupancy of the Subject Property and reflects LORCF's exemption from real property
taxation pursuant to ORS Ch. 307. It shall be the obligation of LORCF to file for and obtain real
property taxation exemption from the county assessor pursuant to ORS 307.166.
8. Duration;Termination
A. Duration; LORCF's Option to Renew.
The duration of this Agreement, unless otherwise renewed pursuant to Subsection B or
earlier terminated pursuant to Subsection C below, is three years,to August 31, 2025.
LORCF may exercise an option to renew this Agreement upon its same terms and conditions for
two additional three-year periods.The exercise of the option to renew shall be automatic unless
LORCF gives written notice not less than 60 days prior to the expiration of the original duration,
e.g.,June 30, 2025, or prior to the expiration of the first renewal period, e.g.,June 30, 2028.
B. Termination for Convenience
End of Original or First Renewal Term
City may terminate this Agreement for convenience, including when determined in the public
interest, at the end of the original or first renewal term by providing notice to LORCF not less than
60 days prior to the expiration of the original or first renewal term, e.g.,June 30, 2025;June 30,
2028. (LORCF has reciprocal right of termination for convenience by electing not to renew per
Subsection A above.)
ii. At Any Time
Either party may terminate this Agreement for convenience, including for the City when
determined to be in the public interest, at any time by providing written notice to the other not
less than 120 days to the other party. cos
In the event of Termination under Subsection B(ii), any paid Compensation under Subsection 6.A.i e�
shall be prorated to a daily rate.The City shall refund to LORCF the prorated amount from the
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balance of the term not yet used.
C. Termination for Cause
i. Either party may terminate upon breach of the other party if the other
party violates a material provision of this Agreement; provided, however,the other party shall
have a period of fourteen (14) days after written notice of violation is given within which to effect
a cure to the party's reasonable satisfaction, or if the violation is such that it cannot be reasonably
cured within fourteen (14) days,the other party shall provide evidence to the party that the other
party has commenced and will diligently continue efforts to completion to cure the violation; in
such event,this Agreement shall continue.
ii. If a party becomes insolvent or files for bankruptcy,termination shall be
effective upon delivery of notice by a party to the other party, or other such effective date as the
party shall state in the notice.
iii. The land upon which the Subject Property is located is or will be subject to
the terms of a Submerged and Submersible Land Lease between the City and the State of Oregon
Division of State Lands. In the event the State gives the City notice of termination, the City shall
forthwith (and within 5 business days) provide a copy of the notice of termination to LORCF.This
Agreement shall be terminated in the event the City's lessee rights is terminated by the State.
9. Notice
Except as otherwise provided herein, any notice by one party to the other may be given in
writing by email, except that a Notice of Termination shall also be given by first class mail:
Notice to City:
Ivan Anderholm, Parks and Recreation Director
ianderholm@ci.oswego.
or.us City of Lake Oswego
P.O. Box 369
Lake Oswego, OR 97035
Notice to LORCF:
Current President president@lorowing.com
255 Foothills Rd.
Lake Oswego, OR 97034
Emailed Notices sent between 8 am—5 pm weekdays (except holidays) shall be deemed received
when sent; emailed notices sent during other times shall be deemed received at 8 am on the next
regular business (non-holiday) day. Mailed notice shall be deemed received 3 business days after
placed in the US Mail, provided however, if actual notice is received earlier,then the notice shall be
deemed received when actually known.
10. Miscellaneous Provisions
A. Compliance with DSL Lease, Laws, Rules, and Policies.
LORCF will observe and abide by all the terms and provisions of the DSL lease in the form
attached as Exhibit B applicable to the Subject Property or the land upon the Subject Property is
located, and all laws, rules and regulations imposed by any lawful governmental authority and
relating in any way to any activity conducted on the premises, and shall require all of its
members, guests, and invitees upon the premises to do likewise. [For the sake of clarity, LORCF
is not responsible for any monetary obligations of tenant to landlord DSL, including but not
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limited to any and all moneys owed to DSL or otherwise payable under the DSL lease, including, ��
without limitation, taxes, rent, rent adjustments, assessments, reimbursements, late charges,
interest, insurance and bonds.]
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B. Non-assignment.
Owing to the special faith and confidence which each party reposes in the other,this Agreement
shall be strictly personal to the parties and shall not be transferable, assignable or otherwise
alienable, or any interest therein, and in the event of any attempt to do so, at the option of the
non-assigning party,the non-assigning party may terminate this Agreement without further
notice.
C. Risk of Loss.
All risk of loss of LORCF's property shall be that of LORCF. All risk of loss of City's property
shall be that of City.
D. As Is.
LORCF certifies, acknowledges and agrees that access to and use of the Facility and
related area is accepted and executed on the basis of LORCF's own examination and personal
knowledge of the premises and personal property, if any, and LORCF's own opinion thereof; all
prior negotiations, representations of fact or opinion or agreements relating to said property
made by City or any agent thereof upon which LORCF may have relied have been reduced to
writing and are included in this agreement, and if not so reduced to writing, are expressly
waived,which waiver is a material part of the consideration of the execution of this contract by
City.
CITY makes no warranties as to the condition of the Subject Property or the common use
areas, other than as set out herein. LORCF takes use of the Subject Property AS IS, in the
condition existing at the time of commencement of use of the Subject Property.
E. Integration.
This Agreement represents the full, entire and complete agreement of the parties. Any
and all amendments to this Agreement shall be in writing and executed by LORCF and
CITY.
F. Supersedes and Terminates Existing Jan. 1, 2021 Personal Services Contract
The parties previously entered into a Personal Services Contract for Rowing Instruction,
Activities and Events at the Subject Property, dated January 1, 2021, which LORCF exercised
the option to renew through December 31, 2022.The parties agree that upon the effect date
of this Agreement,the Personal Services Contract is mutually terminated and all rights and
obligations thereunder shall immediately cease.
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DocuSign Envelope ID:8852DF2B-A5EC-4DCO-ABOD-5D7F2E2DC5A3
IN WITNESS WHEREOF,the undersigned have hereunto executed this Agreement on the date
stated below.
City of Lake Oswego Lake Oswego Rowing Club Foundation
DocuSigned by:
By: By: N--Rdr1u I2 Re5O
ddy
Martha Bennett, Name:
City Manager Date Signed: 12/1/2022
Date Signed: Board President
Date Approved by Council: , 2022
Approved as to Form: Digitally signed by Evan P.Boone
DN:cn=Evan P.Boone,o=City of Lake Oswego,
aCity Attorneys Office,
em
email=eboone@ci.oswego.or.us,c=US
Date:7022 11 29 15:1729-08'00'
Evan P. Boone
City Attorney Pro Tem
DocuSign Envelope ID:8852DF2B-A5EC-4DCO-ABOD-5D7F2E2DC5A3
EXHIBIT A
Facility Charlie S. Brown Water Sports Center area (Boathouse, Canoe House, Docks &Common Area Parking)
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.� r _ - A ,4._: ." * w Charlie S. Brown
'wt. Water Sports
gm z f Center Boathouse,
a- ,r�".`. //if./
�,.. �' .`� Canoe House,
.. Google I< •,`�, Docks
c—DS
DocuSign Envelope ID:8852DF2B-A5EC-4DCO-ABOD-5D7F2E2DC5A3
Exhibit B
STATE OF OREGON
DEPARTMENT OF STATE LANDS
SUBMERGED AND SUBMERSIBLE LAND LEASE AGREEMENT
-ML
THIS SUBMERGED AND SUBMERSIBLE LAND LEASE AGREEMENT (this
"Agreement") is made on this day of , 20 (the "Effective
Date"), by and between the State of Oregon, by and through its Department of State
Lands ("State"), and , a
("Lessee"). State and Lessee are each a "Party" and together the "Parties."
STATE OF OREGON
DEPARTMENT OF STATE LANDS
AMENDED AND RESTATED
SUBMERGED AND SUBMERSIBLE LAND LEASE AGREEMENT
-ML
THIS AMENDED AND RESTATED SUBMERGED AND SUBMERSIBLE LAND
LEASE AGREEMENT (this "Agreement") is made on this day of
(the "Effective Date"), by and between the State of
Oregon, by and through its Department of State Lands ("State"), and
, a ("Lessee").
State and Lessee are each a "Party" and together the "Parties."
This Agreement is an amendment to and restatement of that certain Submerged and
Submersible Land Lease -ML, dated ,
, by and between State and Lessee.
STATE OF OREGON
DEPARTMENT OF STATE LANDS
AMENDED AND RESTATED
SUBMERGED AND SUBMERSIBLE LAND LEASE AGREEMENT
-ML
c-DS
DocuSign Envelope ID:8852DF2B-A5EC-4DCO-ABOD-5D7F2E2DC5A3
THIS AMENDED AND RESTATED SUBMERGED AND SUBMERSIBLE LAND
LEASE AGREEMENT (this "Agreement") is entered into effective as of this day
of , (the "Effective Date"), by and between the State of
Oregon, by and through its Department of State Lands ("State"), and
, a ("Lessee").
State and Lessee are each a "Party" and together the "Parties."
This Agreement is an amendment to and restatement of that certain Submerged and
Submersible Land Lease -ML, dated ,
, by and between State and Lessee.
1. PREMISES
On the terms and conditions set forth in this Agreement, State hereby leases to Lessee
certain lands situated in County (the "Premises"), more fully
described as follows and as shown on Exhibit A:
(Insert legal description of Premises]
Total number of acres: acres, more or less.
This description is used to establish the approximate location and extent of the area
subject to this Department of State Lands authorized use and was not prepared by a
licensed surveyor. All locations, bearings, and distances were developed in the Oregon
Coordinate Reference System Standard; Oregon Statewide Lambert Conformal Conic,
NAD 1983, International Feet, GRS 1980 Spheroid.
2. TERM
2.1 Term. The term of this Agreement is a period of years (the "Initial Term"),
commencing on (the "Commencement Date") and expiring on
, unless terminated earlier as provided in this Agreement. As
used in this Agreement, "Term" means the Initial Term or any Renewal Term (as
defined in Section 2.2 below).
2.2 Renewal Terms. Lessee may apply to renew this Agreement for consecutive
fifteen (15) year terms (each a "Renewal Term") by submitting a completed lease
renewal application form to State at least one hundred eighty (180) days prior to the
expiration of the then-current Term. Upon timely receipt of the application, State shall
renew this Agreement unless:
2.2.1 State determines, in its sole discretion, that Lessee has not complied with
the terms of this Agreement, the applicable statutes or Oregon Administrative os
ter
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Rules ("OARs"); or
2.2.2 State determines that the renewal of this Agreement for all or any portion
of the Premises would be contrary to federal, state or local law, or would be
inconsistent with the policies set forth in OAR 141-082-0260.
2.3 Notice of Intent Not to Renew. Except as otherwise provided in this Agreement,
State shall provide written notice to Lessee at least twenty-four (24) months in advance
if State intends not to renew this Agreement for all or any portion of the Premises. If
State determines not to renew this Agreement, but less than twenty-four (24) months
remain in the Term of this Agreement, State shall, at Lessee's request, extend the Term
of this Agreement to complete the twenty-four (24) month notice period, within which
time Lessee shall vacate that portion of the Premises for which this Agreement is not
being renewed, and relocate any sublessees (as may be allowed pursuant to Section 7
below) in an orderly fashion.
2.4 Holdover. If Lessee does not vacate the Premises at the expiration or earlier
termination of this Agreement, State may treat Lessee as a tenant from month to month,
subject to all of the provisions of this Agreement except the provisions for term, renewal,
and Rent. State may unilaterally establish a new Rent amount for the month-to-month
tenancy, payable monthly in advance. If a month-to-month tenancy results from
holdover by Lessee under this Section 2.4, the tenancy will be terminable at the end of
any monthly rental period upon notice from State given at least thirty (30) days prior to
the termination date specified in the notice.
3. RENT; OTHER ASSESSMENTS
3.1 Initial Rent. The annual rental payment to be paid by Lessee to State (the
"Rent") for the first year of this Agreement is $Dollar Amount, based on the following
rate: Flat Rate. State hereby acknowledges receipt of the first year's Rent.
Use Class Area Rate Choice Annual Rent
_ (square ft.)
(a) Commercial Marina/Moorage square feet Flat Rate, Minimum Applies $ _
(b) Commercial Marina/Moorage square feet Flat Rate, Minimum Applies $ _
(c) Commercial Marina/Moorage square feet Flat Rate, Minimum Applies $ _
TOTAL $
3.2 Rent Adjustment. After the first year of the Initial Term, the Rent will be adjusted
annually in accordance with the provisions of OAR 141-082-0305 in effect at the time.
Each Rent payment is due on the anniversary of the Commencement Date.
3.3 Address for Rent Payments. Unless State provides notice of a change in
address pursuant to the notice requirements of Section 10.2 below, Lessee shall deliver
all Rent and other payments due hereunder to State at the address set forth beneath
State's signature on this Agreement. DS
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3.4 Assessments. Lessee shall pay all taxes and assessments that are levied
against the Premises, whether such taxes or assessments have been levied in the past
against the Premises or State by the assessing agency.
3.5 Late Charges and Interest. If Lessee has not made full payment of amounts due
within twenty (20) days of the date payment is due, Lessee shall pay an additional
charge equal to five percent (5%) of the amount of the late Rent or other charge. In
addition, all amounts due and owing under this Agreement, including late charges, shall
bear interest at the lower of: (1) the highest interest rate allowable by law; or (2) 12°/0
per year.
4. USE
4.1 Authorized Use. This Agreement grants to Lessee the right to use the Premises
for the specific purpose(s) described below in accordance with the terms and conditions
of this Agreement, applicable federal, state and local laws (including local land use
planning and zoning ordinances) and the OARs.
Fully Describe & list uses authorized
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4.1A OSMB Annual Boat Report. Check if applicable:
(applicable only when use type under the
Agreement is designated as commercial
marina/moorage and Section 4.1A is selected)
4.1A.1 On or before February 1 of every year during the Term of this
Agreement, Lessee shall deliver to the Oregon State Marine Board ("OSMB") a
completed "OSMB Annual Boat Report" in the form shown on Exhibit D (or in a
document that includes all of the information required in such form). The
completed OSMB Annual Board Report shall provide the required information for
each and every boat that, during December of the previous calendar year, was:
moored or used on the Premises; or
related to the use of the Premises for commercial marina/moorage
(including any boat owned, used, leased or operated by Lessee).
4.1A.2 A failure to timely deliver a completed OSMB Annual Boat Report to
OSMB as required by this Section 4.1A may constitute a Lessee default under
this Agreement, as set forth in Section 9.1 .2 below.
4.2 Superfund Site. Check if applicable:
4.2.1 Lessee understands and acknowledges that the Premises are located
within the Superfund Site (the
"Superfund Site"). The authorized use of the Premises as allowed under Section
4.1 above does not include any activities or operations that unreasonably
interfere with the performance of Remedial Work on the Superfund Site, including
the area of the Superfund Site within the Premises, pursuant to an order issued
by the United states Environmental Protection Agency (EPA) or the Oregon
Department of Environmental Quality ("DEQ"), whether issued to Lessee or
another party. As used in this Section 4.2, "Remedial Work" includes work
related to investigation, removal and remedial action for the Superfund Site.
4.2.2 Lessee shall conduct all operations on the Premises in a manner that
does not interfere with the performance of the Remedial Work, and shall comply
with any obligations of a party in control of the Remedial Work Area, including,
without limitation, those related to the provision of access for the Remedial Work.
4.3 Restrictions on Use. Lessee shall:
4.3.1 comply with all applicable federal, state and local laws and regulations
affecting the Premises and its use, including local comprehensive land use
planning and zoning ordinances, and correct at Lessee's own expense any
failure of compliance created through Lessee's fault or by reason of Lessee's
use; DS
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4.3.2 dispose of all waste in a proper manner and not allow debris, garbage or
other refuse to accumulate within the Premises, and, if Lessee allows debris,
garbage or other refuse to accumulate within the Premises, allow State to
remove the debris, garbage and other refuse, and collect the cost of such
removal from Lessee;
4.3.3 not cut, destroy or remove, or permit to be cut, destroyed or removed, any
vegetation that may be upon the Premises except with written permission of
State, and promptly report to State the cutting or removal of vegetation by other
persons;
4.3.4 conduct all operations within the Premises in a manner which conserves
fish and wildlife habitat, protects water quality, and does not contribute to soil
erosion or the growth of noxious weeds;
4.3.5 maintain all buildings, docks, pilings, floats, gangways, similar structures,
or other improvements (each an "Improvement") in a good state of repair; and
4.3.6 not unreasonably interfere with the public's trust rights of commerce,
navigation, fishing or recreation.
4.4 Condition of Premises and Improvements. Lessee represents that it has
inspected the Premises and Improvements, if any, and accepts the Premises and all
Improvements in their present condition, AS IS, as of the Effective Date. State has
made no oral or written representations concerning the condition of the Premises or its
Improvements, if any, nor their fitness or suitability for any purpose.
4.5 Improvements by Lessee. Lessee may not construct or place upon the Premises
any Improvement that exceeds $15,000 in cost or value unless Lessee has first
obtained the prior written authorization of State, or the Improvement is exempt under
OAR 141-082-0265. All Improvements shall be consistent with the authorized use(s) of
this Agreement stated in Section 4.1 above and in compliance with all applicable laws,
regulations, and ordinances as stated in Section 4.3.1 above. State shall not
unreasonably withhold or delay its approval for Improvements.
4.6 Removal of Unauthorized Improvements. Lessee shall remove all unauthorized
Improvements from the Premises upon receiving notice from State, unless State elects
to remove the Improvements at Lessee's cost and expense.
4.7 Removal of Authorized Improvements. Lessee shall remove all authorized
Improvements within ninety (90) days after the expiration or earlier termination of this
Agreement or modification of this Agreement under Section 5.2 below, unless otherwise
agreed by the Parties or the Improvement is exempt under OAR 141-082-0265. Lessee
is responsible for any damage done to the Premises as a result of the removal of any
Improvement. Any Improvement remaining on the Premises after the ninety (90) days os
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shall, at the option of State, become the property of State, unless otherwise agreed by
the Parties.
4.8 Liens. With the exception of mortgages or other security interests allowed by
State under Section 7 below, Lessee shall immediately cause to be discharged any lien
or other charge placed on the Premises or its Improvements, arising directly or indirectly
out of Lessee's actions. State may terminate this Agreement if Lessee fails to
discharge any lien or charge or provide State with a sufficient bond covering the full
amount of the lien after ten (10) days' notice to do so by State. Lessee shall pay and
indemnify State for all costs, damages or charges of whatsoever nature, including
attorneys' fees, necessary to discharge such liens or charges whether the costs,
damages or charges are incurred prior or subsequent to any termination of this
Agreement.
4.9 Indemnification. Lessee shall defend, indemnify and hold State harmless from
and against all claims, demands, actions, suits, judgment, losses, damages, penalties,
fines, costs, and expenses, including expert witness fees and costs and attorneys' fees
in an administrative proceeding, at trial, or on appeal ("Claims") arising from or
attributable, in whole or in part, to this Agreement or any operations conducted or
allowed by Lessee on the Premises. As used in this Section 4.9 only, "State" means the
State of Oregon and its boards, commissions, agencies, officers, employees,
contractors, and agents. Lessee shall have control of the defense and settlement of
any Claim; however, neither Lessee nor any attorney engaged by Lessee shall defend
the Claim in the name of the State of Oregon, nor purport to act as legal representative
of State, without the approval of the Attorney General, nor shall Lessee settle any Claim
on behalf of State without the approval of the Attorney General. State may, at its
election and expense, assume its own defense and settlement in the event that State
determines that Lessee is prohibited from defending State, that Lessee is not
adequately defending State's interests, or that an important governmental principle is at
issue and State desires to assume its own defense.
4.10 Waste Water Disposal. In addition to any other applicable laws and regulations,
Lessee shall obtain any permits required by state or local authorities and shall comply
with DEQ and OSMB requirements for sewage collection and waste water disposal for
boats and floating structures.
4.11 Hazardous Substances.
4.11.1 Lessee shall not use, store, or dispose of, or allow the use, storage, or
disposal within the Premises of any material that may pose a threat to human
health or the environment, including, without limitation, hazardous substances,
pesticides, herbicides, or petroleum products (a "Hazardous Substance") except
in strict compliance with applicable laws, regulations and manufacturer's
instructions, and Lessee shall take all necessary precautions to protect human
health and the environment and to prevent the release of any Hazardous
Substance on or from the Premises.
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4.11.2 Lessee shall keep and maintain accurate and complete records of the
amount of all Hazardous Substances stored or used on the Premises, and shall
immediately notify State of any release or threatened release of any Hazardous
Substance on or from the Premises or otherwise attributable to operations or
activities on the Premises.
4.11.3 If any Hazardous Substance is released, and the release arises from or is
attributable, in whole or in part, to any operations conducted or allowed by
Lessee on the Premises, Lessee shall promptly and fully remediate the release in
accordance with state and federal regulations and requirements. If Lessee fails
to so remediate, State may remove and remediate any release of a Hazardous
Substance on or from the Premises or attributable to operations or activities
conducted or allowed by Lessee on the Premises and collect the cost of removal
or remediation from Lessee either as additional Rent or as damages.
4.11.4 In addition to any duty to indemnify specified elsewhere in this Agreement,
Lessee shall indemnify State to the fullest extent allowed by Oregon law against
any claim or costs arising from or related to a release of a Hazardous Substance
arising from or attributable, in whole or in part, to any operations conducted or
allowed by Lessee on the Premises.
4.12 Weed Control. Lessee shall control plant pests and diseases and noxious
weeds, including aquatic weeds, within the Premises as directed by the local county
weed control district, the Oregon Department of Agriculture or any other governmental
authority which has authority for the prevention or control, or both, of noxious weeds,
plant pests or diseases, or as may be authorized or directed by State.
4.13 Nondiscrimination. The Premises shall be used in a manner, and for such
purposes, that assure fair and nondiscriminatory treatment of all persons without
respect to race, creed, color, religion, handicap, disability, age, gender, or national
origin.
5. MODIFICATION OF PREMISES SIZE OR USE
5.1 Change of Size or Use of Premises. Lessee may, using a form provided by
State, request that State amend this Agreement to expand or reduce the size, or
change the authorized use, of the Premises. No such amendment will be effective
unless authorized in writing by State. State shall process and review requests to amend
this Agreement in the same manner as a new lease application.
5.2 Special Conditions Applicable to Reductions in Premises Size. This Agreement
may be amended to reduce the Premises size only if the portion of the Premises to be
removed from this Agreement does not contain any Improvement. If the amendment
results in a reduction of Rent due under this Agreement, the reduction will be effective
commencing on the anniversary of the Commencement Date that falls at least twelve Ds
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(12) months after the later of: (1) the date of the reduction in the Premises size; or (2)
the date on which the amendment is fully executed.
5.3 Lessee Liable for Violations. Notwithstanding any reduction in the Premises size
under this Section 5, Lessee shall remain liable for any violation of Section 4.9 or 4.10
above occurring on lands removed from the Premises prior to the amendment removing
such lands.
6. RESERVATIONS BY STATE
6.1 Entry; Lessee Records. State may enter the Premises at all reasonable times in
order to inspect and manage State's interest in the Premises, and to evaluate and
ensure Lessee's compliance with the terms and conditions of this Agreement.
Additionally, State may examine pertinent records of Lessee for the purpose of ensuring
compliance with this Agreement.
6.2 Minerals. State reserves all rights to coal, oil, gas, geothermal resources and
other minerals, and all deposits of clay, stone, gravel and sand valuable for building,
mining, or commercial purposes including, without limitation, the right to explore, mine,
develop, produce and remove such minerals and other deposits, along with the right of
ingress and egress for these purposes, and to terminate this Agreement as to all or any
portion of the Premises when required for these purposes with one hundred twenty
(120) days prior written notice to Lessee or as otherwise provided by law.
6.3 Easements. State reserves the right at any time to grant easements across the
Premises for tunnels, telephone and fiber optic cable lines, pipelines, power lines, or
other lawful purpose, along with the right of ingress and egress for these purposes,
subject to the inclusion in any such grant of easement of a requirement that the
easement holder take all reasonable precautions to ensure that exercise of their
easement rights does not unreasonably interfere with Lessee's use(s) authorized in this
Agreement.
6.4 Public Access and Recreational Use. All state-owned submerged and
submersible land shall remain available and open to the public for commerce,
navigation, fishing and recreation unless restricted or closed by State to public entry
pursuant to the provisions of applicable OARs. Lessee may request State, but State is
not obligated, to close the Premises to public entry or restrict recreational use by the
public on all or portions of the Premises to protect persons or property from harm arising
from or in connection with Lessee's activities.
This reservation does not grant the public any right to use or occupy, without Lessee's
permission, Lessee-owned property or structures authorized under this Agreement.
6.5 Other. State reserves all other rights not expressly granted to Lessee under this
Agreement.
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7. ASSIGNMENTS AND SUBLETTING
7.1 Assignments and Subleases.
7.1.1 Except as provided in Section 7.2 below, Lessee may not assign this
Agreement, sublease the Premises or any portion of the Premises, or enter into
any third-party agreement respecting this Agreement or the Premises, without
first obtaining the prior written consent of State pursuant to the requirements of
the applicable OARs. Requests shall be in writing using an application form
prescribed by State, and delivered to State at least thirty (30) days prior to the
proposed effective date of the sublease or assignment. State shall make a good
faith effort to complete its review of Lessee's application within thirty (30) days
following receipt. If the application is incomplete, or if State requests additional
information concerning the proposed assignment or sublease, the time period for
reviewing applications may be extended and the proposed sublease or
assignment may be delayed pending the completion of such review.
7.1.2 State reserves the right to condition its consent to an assignment or
sublease as State deems reasonably prudent, including the right to require
changes to the terms of this Agreement. Each assignee, sublessee, and third-
party interest will be required to comply with all of Lessee's obligations under this
Agreement, and the applicable OARs. Lessee shall remain liable for the
performance of all obligations under this Agreement unless State's written
consent expressly releases Lessee from further liability.
7.1.3 For the purposes of this Section 7.1.3, if Lessee is a corporation,
partnership or limited liability company, the transfer of any corporate stock or
partnership or membership interest (including by operation of law) will be
deemed an assignment subject to the provisions of this Section 7.3.1 if the result
of the transfer is a change of management control or controlling interest in
Lessee.
7.1.4 Lessee may not grant a mortgage or security interest in this Agreement
without prior written consent of State, which consent shall not be unreasonably
withheld. Any subsequent assignment by the mortgagee or security interest
holder shall require the prior written approval of State.
7.2 Permitted Assignments and Subleases. Notwithstanding the provisions of
Section 7.1 above, the following assignments, mortgages and security interests, and
subleases of Lessee's interest in the Premises are permitted and written notice to State
is not required:
7.2.1 subleases of portions of Lessee's interest in the Premises in the ordinary
course of Lessee's business for the authorized use pursuant to Section 4.1
above;
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7.2.2 the sublease of the entire Premises for a term that is less than twelve (12)
months, for the authorized use pursuant to Section 4.1 above; or
7.2.3 the transfer of Lessee's interest in this Agreement to a surviving spouse or
immediate family member following the death of Lessee; except that, any other
transfer of ownership following the death of Lessee is considered an assignment
requiring State's approval.
8. INSURANCE; BONDS
8.1 Insurance. During the Term of this Agreement, Lessee shall maintain the
insurance coverage required by Exhibit B.
8.2 Bond. State reserves the right to require Lessee to furnish to State a surety
bond or an equivalent cash deposit or certificate of deposit, in an amount to be
determined by State in the exercise of its reasonable discretion, which names the
State of Oregon as co-owner to ensure that Lessee performs in accordance with all
terms and conditions of this Agreement.
8.2 Bond. Lessee shall furnish to State a surety bond, in the amount and on the
terms set forth on Exhibit C.
9. DEFAULT
9.1 Default. The following are events of default under this Agreement:
9.1.1 Failure of Lessee to pay any Rent, tax, reimbursement or other charge or
payment due under this Agreement within twenty (20) days after the date
payment is due. For the purposes of this Section 9.1.1, if the due date for
payment is not otherwise stated in this Agreement or otherwise defined in statute
or the OARs, payment is due on the date set forth in the notice from State to
Lessee informing Lessee of its obligation to make such payment.
9.1.2 Failure to comply with non-payment-related term of condition of this
Agreement within thirty (30) days after notice by State specifying the nature of
the deficiency, or, in the event of an emergency, within the time specified by
State to resolve the emergency. Upon timely request from Lessee, State may, in
its reasonable discretion, permit the deadline for curing noncompliance to be
extended if it finds that: (a) the noncompliance cannot reasonably be cured within
the 30-day period; (b) the interests of State will not be harmed by an extension;
(c) the noncompliance was not due to the willful act or gross negligence of
Lessee; and (d) State and Lessee agree upon a written plan and timeline for
curing the noncompliance.
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9.1.3 Any of the following:
(a) insolvency of Lessee;
(b) the filing by Lessee of a voluntary petition in bankruptcy;
(c) an adjudication that Lessee is bankrupt or the appointment of a receiver of
the properties of Lessee;
(d) the filing of any involuntary petition of bankruptcy and failure of Lessee to
secure a dismissal of the petition within thirty (30) days after filing; or
(e) attachment of or the levying of execution on the Premises interest and
failure of Lessee to secure discharge of the attachment or release of the levy of
execution within ten (10) days.
If Lessee consists of two or more individuals or business entities, the events of
default specified in this Section 9.1 apply to each individual or entity unless within
ten (10) days after an event of default occurs, the remaining individuals or
entities produce evidence satisfactory to State that they have unconditionally
acquired the interest of the one causing the default. If this Agreement has been
assigned under Section 7 above, the events of default specified in this Section
9.1 apply only with respect to the one then exercising the rights of Lessee under
this Agreement.
9.1.4 Notwithstanding the foregoing, if State in good faith believes that a
material default has occurred which may imperil State's rights in the land or the
discharge of its Constitutional obligations with respect to the land, State may
declare an immediate default without any right of Lessee to cure the deficiency.
9.2 Termination of Occupancy Upon Default. State may terminate Lessee's right to
occupy the Premises for any default by Lessee that remains uncured past the time
provided in Section 9.1 above. State shall exercise its right to terminate Lessee's
occupancy under this Section 9.2 by providing notice to Lessee of the default and of
State's intent to terminate Lessee's right of occupancy under this Agreement upon the
date provided in the notice. State may recover from Lessee all costs arising out of
State's re-entry and re-letting the Premises. If State and Lessee agree to terminate this
Agreement, State may recover the amount of unpaid rent that otherwise would have
been required to be paid under this Agreement from the date of default until a new lease
has been secured or, if State and Lessee do not agree to terminate this Agreement and
State is unable to secure another lessee for the Premises, until such time as this
Agreement expires. Lessee shall dispose of all Improvements as specified in Section
4.6 or 4.7 above. If Lessee owns a floating home and has placed the home on the
Premises as an authorized use pursuant to Section 4.1 above, the lease termination
provisions of ORS Chapter 90 shall apply to the extent the provisions of this Agreement
are inconsistent therewith.
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9.3 State's Right to Cure Defaults.
9.3.1 If Lessee fails to perform any obligation under this Agreement, State may
perform the obligation of this Agreement thirty (30) days after providing notice to
Lessee. All of State's expenditures to carry out the obligation shall be
reimbursed by Lessee on demand with interest at the rate of one percent (1%)
per month accrued from the date of expenditure by State.
9.3.2 Notwithstanding Section 9.3.1 above, but subject to ORS Chapter 90 if
applicable, if any violation of a term or condition of this Agreement, including,
without limitation, use of the Premises in a manner not permitted under this
Agreement, is causing or threatens to cause personal injury or damage to the
Premises or other property, or if damage to the Premises arises from some other
cause, State may immediately enter upon the Premises and take such action as
it deems necessary to stop the use or mitigate the injury or damage. If the injury
or damage is due to a violation of the terms or conditions of this Agreement,
Lessee will be liable for all costs incurred by State as a result of the violation and
the action taken by State to mitigate the injury or damage. State, at its option,
may send notice to Lessee of the violation and, upon receipt of the notice,
Lessee shall immediately cease the violation and repair the injury or correct all
damage caused by the violation. State's failure to provide notice of a violation
may not be deemed a waiver of the violation by State or authorization to Lessee
to continue or fail to correct the violation.
9.4 Right to Sue More Than Once. State may sue periodically to recover damages
accrued to date, and no action for damages shall bar later actions for damages
subsequently accruing.
9.5 Remedies Cumulative. The remedies contained in this Agreement are in addition
to, and do not exclude, any other remedy available at law or in equity, and the exercise
by either Party of any one or more of its remedies does not preclude the exercise by it
at the same or different times of any other remedies for the same default or breach by
the other Party.
10. NOTICES
10.1 Addresses. A Party's address means the address set forth below that Party's
signature on this Agreement. State may notify Lessee of a different address for
payments of any Rent or other amounts due to State under this Agreement. Any
notices, demands, deliveries or other communications required under this Agreement
shall be made in writing and delivered by one of the methods set forth in Section 10.2
below to a Party's address, unless one Party modifies its Address by notice to the other
Party, given in accordance with Section 10.2 below.
10.2 Delivery.
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Method of delivery When notice deemed delivered
In person the day delivered, as evidenced by signed
(including by messenger service) receipt
Email or Fax the day sent (unless sent after 5:00 p.m.,
P.T., in which case the email or fax shall be
deemed sent the following business day)
US Mail the day received, as evidenced by signed
(postage prepaid, registered or return receipt
certified, return receipt requested)
Courier delivery the day received, as evidenced by signed
(by reputable commercial courier) receipt
If the deadline under this Agreement for delivery of a notice is a Saturday, Sunday or
federal or State of Oregon holiday, such deadline shall be deemed extended to the next
business day.
11. MISCELLANEOUS
11.1 Time is of the Essence. Time is of the essence in relation to the Parties'
performance of any and all of their obligations under this Agreement.
11.2 Calculation of Days. Any reference in this Agreement to "days" shall mean
calendar days, unless specified as "business days." A business day is any day that is
not a Saturday, Sunday or a federal or State of Oregon holiday.
11.3 Consent. Unless otherwise specifically stated herein, any consent by a Party
shall not be unreasonably withheld, conditioned or delayed.
11 .4 Integration. This Agreement constitutes the entire agreement between the
Parties on the subject matter hereof. The Parties have no understandings, agreements
or representations, oral or written, regarding this Agreement that are not specified
herein.
11.5 Amendments. This Agreement may be amended or modified only by a written
instrument signed by both Parties.
11.6 No Waiver of Performance. No waiver by a Party of performance of any
provision of this Agreement by the other Party shall be deemed a waiver of nor
prejudice the other Party's right to otherwise require performance of the same provision,
or any other provision.
11.7 Severability. If any term or provision of this Agreement 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 this Agreement did not contain the os
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particular term or provision held to be invalid.
11.8 Counterparts. This Agreement and any amendments hereto may be executed in
two or more counterparts, each of which is an original, and all of which together are
deemed one and the same document, notwithstanding that both Parties are not
signatories to the same counterpart.
11.9 Governing Law; Consent to Jurisdiction. This Agreement is governed by and
construed in accordance with the laws of the State of Oregon without regard to
principles of conflicts of law. Any claim or action between State (or any other agency or
department of the State of Oregon) and Lessee that arises from or relates to this
Agreement shall be brought and conducted solely and exclusively within the jurisdiction
of the Circuit Court of Marion County in the State of Oregon. In no event shall this
Section 11.9 be construed as a waiver by the State of Oregon of any form of defense or
immunity, whether sovereign immunity, governmental immunity, immunity based on the
eleventh amendment to the Constitution of the United States or otherwise, from any
Claim or from the jurisdiction of any court. Each Party hereby consents to the exclusive
jurisdiction of such court, waives any objection to venue and waives any claim that such
forum is an inconvenient forum.
11.10 Force Majeure. A Party shall not be liable for any delay in performance under
this Agreement, other than payment of any money to the other Party, if such delay is
caused by strikes, lockouts, riots, floods, explosions, earthquakes, tornados, storms,
wars, acts of public enemies, insurrections, acts of God, shortages of labor or materials
or any other such causes not within the control of the first Party.
11.11 No Partnership. State is not a partner nor in a joint venture with Lessee in
connection with any activities relating to this Agreement or the Premises, and State has
no obligation for Lessee's debts or other liabilities.
11.12 Binding on Successors. This Agreement is binding on and shall inure to the
benefit of the successors and assigns of the Parties, but nothing in this Section 11.12
may be construed as a consent by State to any disposition or transfer of this Agreement
or any interest in it by Lessee except as otherwise expressly provided in this
Agreement.
11.13 Exhibits. The Exhibits listed below are incorporated as part of this Agreement:
Exhibit A: Premises
Exhibit B: Insurance Requirements
Exhibit C: Bond Requirements
Exhibit D: OSMB Annual Boat Report
Template Approved by DOJ on October 14, 2021
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Each person signing this Agreement below on behalf of a Party represents and warrants
that he or she is duly authorized by such Party and has legal capacity to do so.
STATE:
The State of Oregon, by and through its Department of State Lands
Signature: Date:
Name:
Title:
Address:
Street: 775 Summer St. NE, Suite 100
City/State/ZIP: Salem, OR 97301
ATTN: Proprietary Coordinator
Email: support.services@dsl.oregon.gov
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LESSEE:
, a
Signature: Date:
Name:
Title:
Address:
Street:
City/State/ZIP:
ATTN: , or successor
Email:
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CERTIFICATE OF COMPLIANCE WITH OREGON TAX LAWS
By signature on this Agreement for Lessee, the undersigned hereby certifies under
penalty of perjury that the undersigned is authorized to act on behalf of Lessee and that
Lessee is, to the best of the undersigned's knowledge, not in violation of any Oregon Tax
Laws. For purposes of this certification, "Oregon Tax Laws" means a state tax imposed
by ORS 320.005 to 320.150 (Amusement Device Taxes), 403.200 to 403.250 (Tax For
Emergency Communications), 118 (Inheritance Tax), 314 (Income Tax), 316 (Personal
Income Tax), 317 (Corporation Excise Tax), 318 (Corporation Income Tax), 321 (Timber
and Forest Land Taxation) and 323 (Cigarettes And Tobacco Products) and the elderly
rental assistance program under ORS 310.630 to 310.706 and any local taxes
administered by the Department of Revenue under ORS 305.620.
Signature: Date:
Name:
Title:
DS
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EXHIBIT A
Premises
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EXHIBIT B
Insurance Requirements
(Any capitalized terms used but not defined in this Exhibit shall have the same meaning
as in the Agreement to which this Exhibit is attached.)
During the Term of the Agreement, Lessee shall maintain in force, at its own cost and
expense and in accordance with Section 5 below, each insurance item noted below,
1. Workers' Compensation
(Required if Lessee has one or more workers, as defined by ORS 656.027)
All employers, including Lessee, that employ subject workers, as defined in ORS
656.027, shall comply with ORS 656.017 and shall provide workers'
compensation insurance coverage for those workers, unless they meet the
requirement for an exemption under ORS 656.126(2). Lessee shall require and
ensure that each of its sublessees (if permitted) complies with these
requirements.
2. Commercial/General Liability Coverage
Required by State
Not required by State
Commercial/General Liability coverage, insuring against claims for bodily injury,
death and property damage. Coverage shall include contractual liability coverage
for the indemnity provided under the Agreement. The commercial/general liability
insurance coverages required under the Agreement shall include the State of
Oregon and its agencies, departments, divisions, commissions, branches, officers,
employees, and agents as additional insureds (See Section 5 below).
Lessee shall provide proof of liability or commercial general liability insurance in
not less than the following amounts:
Bodily Injury/Death:
$1,000,000/$2,000,000 combined single limit per occurrence/aggregate
limit for all claims per occurrence.
or
$2,000,000/$4,000,000 combined single limit per occurrence/aggregate
limit for all claims per occurrence.
or
$ DS
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3. Marine Protection and Indemnity Coverage
❑ Required by State
❑ Not required by State
Lessee shall obtain, at Lessee's expense, and keep in effect during the Term of
the Agreement, marine protection and indemnity coverage. Shall not be less
than $ .
4. Pollution Liability
❑ Required by State
❑ Not required by State
Lessee shall obtain at Lessee's expense, and shall keep in effect during the
Term of the Agreement, pollution liability insurance covering Lessee's liability for
bodily injury, property damage and environmental damage resulting from sudden
accidental and gradual pollution and related cleanup costs incurred by Lessee,
all arising out of Lessee's lease of the Premises. Shall not be less than $
5. General Requirements
(a) "Tail" Coverage. If any of the required liability insurance is on a "claims
made" basis, Lessee shall maintain either "tail" coverage or continuous "claims
made" liability coverage, provided the effective date of the continuous "claims
made" coverage is on or before the effective date of the Agreement, for a
minimum of twenty-four (24) months following the termination or expiration of the
Agreement.
(b) Certificates of Insurance. As evidence of the insurance coverages
required by the Agreement, Lessee shall furnish acceptable insurance
certificates to State prior to commencing any work to be performed under the
Agreement. The certificate shall specify all of the parties who are additional
insureds. If requested, complete copies of insurance policies, trust agreements,
etc. shall be provided to State. Lessee shall pay for all deductibles, self-insured
retention and self-insurance.
(c) Additional Insureds. Any coverage required by this Exhibit, except for
Workers' Compensation, shall include the State of Oregon, and its agencies,
departments, divisions, commissions, branches, officers, employees, and agents
as additional insureds, but only with respect to Lessee's activities to be
performed under the Agreement. Coverage shall be primary and non-
contributory with any other insurance and self-insurance.
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(d) Change in coverage or cancellation. Lessee shall notify Lessor when a
change in coverage or cancellation occurs. Lessee shall provide Lessor copies
of new coverage upon effect of change. Lessee shall maintain the required
insurance coverage over the Term of the Agreement.
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EXHIBIT C
Bond Requirements
(if applicable)
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EXHIBIT D
OSMB Annual Boat Report
(applicable only when use type under the Agreement is designated as commercial
marina/moorage and Section 4.1A is selected)
On or before February 1 of every year during the Term of the Agreement, Lessee shall complete
this form (or prepare a document that includes all of the information required by this form) and
deliver it to the Oregon State Marine Board ("OSMB") at the address set forth below.
A failure to complete this form and deliver it to OSMB may constitute a Lessee default under the
Agreement.
DELIVER TO: Oregon State Marine Board
Attn: Environmental & Policy Program
435 Commercial St. NE, Unit 400
Salem, Oregon 97301
OR
Oregon State Marine Board
Email: marine.board@boat.oregon.gov
(in email subject line, type "Environmental and Policy Section')
Reporting Year: December 20
Lessee under Lease with Oregon Department of State Lands:
Name:
DSL Lease #: -ML
Moorage/Marina:
Marina Name:
Marina Location:
By signing below, Lessee certifies to the Oregon State Marine Board that the following is a
complete list of each and every boat that, during December of the previous calendar year, was
moored or used on the Premises, or related to the use of the Premises for commercial
marina/moorage (including any boat owned, used, leased or operated by Lessee):
LESSEE:
, a(n)
(entity/lessee printed name) (entity type)
Signature:
Date:
DS
Title:
ter
DocuSign Envelope ID:8852DF2B-A5EC-4DCO-ABOD-5D7F2E2DC5A3 List of Boats and Boat Information
Boat I.D. Number Sticker Slip Number Name of Responsible Responsible Party's Contact Information
(State Certificate Expiration Party for Boat (mailing address, phone number and email
Number, HIN, or USCG Date address)
#)
Mailing Address:
Phone Number:
Email Address:
Mailing Address:
Phone Number:
Email Address:
Mailing Address:
Phone Number:
Email Address:
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DocuSign Envelope ID:8852DF2B-A5EC-4DCO-ABOD-5D7F2E2DC5A3 List of Boats and Boat Information
Boat I.D. Number Sticker Slip Number Name of Responsible Responsible Party's Contact Information
(State Certificate Expiration Party for Boat (mailing address, phone number and email
Number, HIN, or USCG Date address)
#)
Mailing Address:
Phone Number:
Email Address:
Mailing Address:
Phone Number:
Email Address:
Mailing Address:
Phone Number:
Email Address:
rDs
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DocuSign Envelope ID:8852DF2B-A5EC-4DCO-ABOD-5D7F2E2DC5A3 List of Boats and Boat Information
Boat I.D. Number Sticker Slip Number Name of Responsible Responsible Party's Contact Information
(State Certificate Expiration Party for Boat (mailing address, phone number and email
Number, HIN, or USCG Date address)
#)
Mailing Address:
Phone Number:
Email Address:
Mailing Address:
Phone Number:
Email Address:
Mailing Address:
Phone Number:
Email Address:
ADS
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DocuSign Envelope ID:8852DF2B-A5EC-4DCO-ABOD-5D7F2E2DC5A3 List of Boats and Boat Information
Boat I.D. Number Sticker Slip Number Name of Responsible Responsible Party's Contact Information
(State Certificate Expiration Party for Boat (mailing address, phone number and email
Number, HIN, or USCG Date address)
#)
Mailing Address:
Phone Number:
Email Address:
Mailing Address:
Phone Number:
Email Address:
Mailing Address:
Phone Number:
Email Address:
(add additional pages as necessary) ADS
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