CONSERVATION EASEMENT AND WATER SUPPLY AGREEMENT
THIS AGREEMENT is entered into among Multnomah County Drainage District No.1 (“District”), the City of Portland, Oregon, a municipal corporation of the state of Oregon (“City”), Colwood Limited Partnership, Yvonne Bitar Attyah, Louise Bitar Rumpakis, Joyce Bitar and Kristine Bitar Wilkins, as Trustees of the Mabel S. Bitar Trust, and William F. Bitar, as Trustee of the Margaret A. Bitar Trust u/a.
RECITALS
A. Colwood Limited Partnership owns and runs a golf course located 7313 NE Columbia Boulevard adjacent to the Columbia Slough. Yvonne Bitar Attyah, Louise Bitar Rumpakis, Joyce Bitar and Kristine Bitar Wilkins, as Trustees of the Mabel S. Bitar Trust, and William F. Bitar, as Trustee of the Margaret A. Bitar Trust u/a, are also co-owners of the land upon which said golf course is located. (Hereinafter, all of the parties named in this paragraph are collectively referred to as “Colwood”.)
B. The District holds water right Certificate 68257, which was perfected under Permit 14393. Under that certificate, water may be diverted from the Columbia Slough at, among other places, a point of diversion described as follows: SW ¼ NE ¼, AS PROJECTED WITHIN CULLY DLC 39, SECTION 17,T 1 N, R 2 E, W.M.; 2430.58 FEET SOUTH AND 2260.49 FEET WEST FROM THE NE CORNER OF SECTION 17. Hereinafter this point of diversion is described as the “surface diversion.”
C. Colwood has in the past diverted water from the Columbia Slough pursuant to the District’s right and at the authorized point of diversion described above, for use in irrigating its golf course.
D. The City, working with the U.S. Army Corps of Engineers, is engaged in a project to create and enhance 15 acres of emergent wetlands and to improve water flow in the Upper Columbia Slough.
E. The City’s project will affect Colwood’s ability to divert water at the point of diversion described above.
F. To accomplish City project goals and to protect the irrigation interests of the District and Colwood, the parties desire to enter into an agreement to cease withdrawal of water at the point of diversion described above and to provide Colwood with an alternative source of irrigation water, in accordance with the terms and conditions set forth herein.
G. The District has sought and obtained an Order (Transfer 9019) from the Oregon Water Resources Department transferring the point of diversion described above to a well located: SW ¼, NE ¼, AS PROJECTED WITHIN CULLY DLC 39, SECTION 17, T 1 N, R 2 E, W.M.; 2341.98 FEET SOUTH AND 2228.95 FEET WEST FROM THE NE CORNER OF SECTION 17.
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TERMS
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants contained herein, the parties agree as follows:
1. Consideration: The City of Portland, through its Bureau of Environmental Services, shall pay Colwood $160,000 (One Hundred Sixty Thousand Dollars) upon performance by Colwood and the District of the following:
(a) Colwood and the District shall take all steps necessary to complete the change in place of diversion as required by Transfer 9019, which is attached hereto and incorporated herein, and to obtain an amended water right certificate reflecting the change of place of diversion.
(b) Colwood and District shall provide the City with a copy of the new certificate confirming the altered water right.
2. Conservation Easement: Restriction on Further Water Diversions: Neither the District nor Colwood shall, without the approval of the City’s Director of the Bureau of Environmental Services, divert water at the surface diversion referenced in Recital B above after June 30, 2004.
3. Rights in Case of Water Supply Inadequacy: In the event that Colwood’s current irrigation requirements cannot be met through the water made available by the Change in Point of Diversion, Transfer 9019, and other water currently available to Colwood, and documentation of such inadequacy is provided to BES prior to January 1, 2005, Colwood and the District may exercise one of the following options:
(a) Colwood and the District shall continue to be bound by the limitations of this agreement, but, subject to the approval of the Director of BES, and taking into account financial, technical, regulatory and other applicable requirements, Colwood may seek and develop an alternative water source, including but not limited to a surface water diversion in the Columbia Slough, that meets Colwood’s irrigation requirements and that does not interfere with BES’s projects; or
(b) Colwood shall refund the $160,000 paid to Colwood by BES under the terms of this Agreement and Colwood and the District shall be relieved of the restrictions on water diversions contained in this agreement.
4. Compliance With Laws: In connection with its activities under this Agreement, Colwood agrees to comply with all applicable federal, state and local laws and regulations.
5. Severability: The parties agree that 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, they will engage in good faith negotiations in an effort to amend the contract so as to accomplish its objectives despite the finding of illegality. If the parties are unable, within 120 days, to negotiate acceptable amendments, then the Agreement is terminated.
6. Waiver: The failure of the City to enforce any provision of this Agreement shall not constitute a waiver by the City of that or any other provision.
7. Governing Law: The provisions of this Agreement shall be construed in accordance with the laws of the State of Oregon. Any action or suit involving any question arising under this Agreement must be brought in the appropriate court in Multnomah County, Oregon.
8. Modification: This Agreement may be modified only in writing signed by all parties.
9. Mediation: If any dispute should arise between the parties concerning this Agreement or the parties’ obligations or activities hereunder, the dispute shall be submitted to mediation before a mediator agreed to and compensated equally by the parties, prior to commencement of arbitration or litigation. If the parties fail to agree on a mediator, a mediator shall be appointed by the presiding judge of the Multnomah County Circuit Court. Notwithstanding the foregoing, each party shall have the right to pursue all legal remedies, including litigation, within 180 days after notice of a dispute is provided, in writing, to the other parties.
10. Notices: Any notices or correspondence regarding this Agreement shall be sent to the following:
For the City:
Columbia Slough Watershed Manager
Bureau of Environmental Services
1120 SW Fifth Avenue, Room 1000
Portland, OR 97204
For the District:
Executive Director
Multnomah County Drainage District
1880 NE Elrod Drive
Portland, OR 97211
For Colwood:
Colwood Limited Partnership
c/o National Golf Courses, Inc.
ANA Kalakaua Center
2155 Kalakaua Ave., Suite 602
Honolulu, HI 96815-2354
11. Agreement Appurtenant to Land: This Agreement and the associated conservation easement shall bind the successors and assigns of the parties and shall run with the land. The City may record this Agreement with the Multnomah County Recorder’s Office.
12. Signatures:
FOR THE CITY:
____________________________________ Dated: ______________
Dean Marriott
Director, Bureau of Environmental Services
APPROVED AS TO FORM:
_____________________________________
City Attorney
FOR THE DISTRICT:
____________________________________ Dated: ______________
Bob Eaton
Executive Director
Multnomah County Drainage District #1
FOR COLWOOD:
COLWOOD LIMITED PARTNERSHIP, an
Oregon limited partnership, by its General Partner,
NATIONAL GOLF COURSES, INC.
___________________________________________ Dated: ______________
By: WILLIAM W. SAUNDERS, JR.
Vice President, NATIONAL GOLF COURSES, INC.
STATE OF
County of
This instrument was acknowledged before me on , 2003,
by William W. Saunders, Jr., Vice President, National Golf Courses, Inc.
Notary Public for
My Commission expires
_____________________________________ Dated: ______________
YVONNE BITAR ATTYAH,
as Trustee of the Mabel S. Bitar Trust
STATE OF
County of
This instrument was acknowledged before me on , 2003,
by Yvonne Bitar Attyah, as Trustee of the Mabel S. Bitar Trust
Notary Public for
My Commission expires
_____________________________________ Dated: ______________
LOUISE BITAR RUMPAKIS,
as Trustee of the Mabel S. Bitar Trust
STATE OF
County of
This instrument was acknowledged before me on , 2003,
by Louise Bitar Rumpakis, as Trustee of the Mabel S. Bitar Trust
Notary Public for
My Commission expires
_____________________________________ Dated: ______________
JOYCE BITAR,
as Trustee of the Mabel S. Bitar Trust
STATE OF
County of
This instrument was acknowledged before me on , 2003,
by Joyce Bitar, as Trustee of the Mabel S. Bitar Trust
Notary Public for
My Commission expires
_____________________________________ Dated: ______________
KRISTINE BITAR WILKINS,
as Trustee of the Mabel S. Bitar Trust
STATE OF
County of
This instrument was acknowledged before me on , 2003,
by Kristine Bitar Wilkins, as Trustee of the Mabel S. Bitar Trust
Notary Public for
My Commission expires
_____________________________________ Dated: ______________
WILLIAM F. BITAR,
as Trustee of the Margaret A. Bitar Trust u/a
STATE OF
County of
This instrument was acknowledged before me on , 2003,
by William F. Bitar, as Trustee of the Margaret A. Bitar Trust u/a
Notary Public for
My Commission expires