UPDATE: March 2018
During the recent February monthly board meeting with the Port of Tillamook Bay, the decision was made to temporarily table the final decision to sign the draft-lease agreement between POTB and STIA until the March 20th meeting.
In a 3-to-1 vote, with one abstaining, the Board felt that OCSR’s arguments were valid in that in it’s current form there is no secure verbiage that protects OCSR (as well as various other leaseholders) within the proposed STIA lease agreement. In addition in the lease’s current form the POTB would be signing over a great deal of administrative jurisdiction and rights over to STIA, leaving all parties open to a litany of potential litigation.
During that board meeting it was revealed the Port Commissioner Jack Mulder essentially coerced the rest of the POTB board into signing the lease without proper time to closely read the document. 4 out of 5 commissioners expressed dissatisfaction with his actions and at least one made some very strong statements toward that kind of behavior.
Though we at OCSR are grateful that the POTB Commissioners made this crucial decision we also recognize the effort is not over.
During the time immediately following the February POTB board meeting OCSR has received a number of concerning communications from various state and federal agencies regarding false allegations and other dubious situations that we feel are due to the actions of those behind the scenes at STIA, Tillamook County and POTB who seem to be stopping at nothing in order to ram through this fallacious lease agreement. We at OCSR are diligently addressing each issue as they come up in a prompt and professional manner and remain resolute in our position that Tillamook County can doubly benefit from keeping a Rail-WITH-Trail project active and having secure legal verbiage to follow as the Salmonberry Trail project moves forward.
The Port of Tillamook Bay, signing their rights over to the Trail
The OCSR has been an advocate for the Salmonberry Trial since its inception. We believe the original concept of rails with trails could bring additional economic support to our community and help us all thrive. Unfortunately the grass roots movement that started the trail that included community stake holders like the OCSR have been pushed to at best advisory members on certain “segments” of the planned trial. This grass-roots trail community has been taken over by Salem bureaucrats who are not being transparent with the community of Tillamook County. They have been in the process of entering a lease for the Port of Tillamook Railroad Right of Way with the Port of Tillamook Bay and contrary to the original vision, the current version of the lease gives the new governmental agency, the Salmonberry Trail Intergovernmental Agency (STIA) the power to not only block all new leases but also allows them to prevent automatic renewals of current use agreements they believe interfere with their plans.
This is not only contrary to the original plan but it is an attempt by Salem to take control of Port property and all future leases the Port may want to enter into. Despite the language of the current lease agreement, STIA has been selling the new lease to the Port board that it does not have this power and that there is a dispute resolution clause that will solve any issues. The reason the OCSR cares about this is the Port has entered into negotiations with the OCSR to give us a 60 year lease. During these negotiations and in other meetings, the Port manager and Board Members have repeatedly stated that there are people who are involved in STIA who want to remove the OCSR from existence because they BELIEVE we are an impediment to their trail. It is clear by the most recent lease draft this group of Salem bureaucrats is getting their way. We at the OCSR have been aware of these forces for some time and the same forces have been telling the Port Board the dispute resolution provisions of the lease would not give power to STIA to block the Port’s ability to manage their own property. According to our legal team, this could not be further from the truth.
The current proposed section that allows STIA to object to existing and future agreements states:
(3) Existing Use Agreements. Subject to the terms of this Agreement, the Parties agree
that the Port will retain the right to administer and manage any Existing Use Agreements
(which are unexpired Use Agreements valid and in effect as of the Effective Date of this
Agreement) and renew, without amendment, any Existing Use Agreements that include
unilateral, unrestricted, and automatic third party rights to renew (“Automatic Renewal
Right”), as long as such Existing Use Agreements: : 1) are in conformance with the
Concept Plan; 2) do not constitute Trail Use; and 3) do not negatively affect STIA’s lease
rights, under this Agreement; and 4) do not impose a Material Negative Impact on STIA’s
Trail Use. As used in this Section D, the phrase “Material Negative Impact” means an activity
or use that will impair or impede STIA’s Trail Use or STIA’s construction, operation and
maintenance of the Trail and Improvements. The Port retains all revenues from the Existing
Use Agreements. The Port will notify STIA thirty (30) days prior to renewing any Existing
Use Agreement that includes an Automatic Renewal Right and shall, upon request, provide a
copy of the proposed renewed Existing Use Agreement that includes an Automatic Renewal
Right. Such notice shall state how the proposed renewal complies with the requirements of
this Section D.3.
(6) Objections to New Use Agreement. STIA may object to a New Use Agreement if
STIA believes the New Use Agreement: a) fails to conform to the Concept Plan; b) constitutes
Trail Use; c) negatively affects STIA’s lease rights under this Agreement; or d) imposes a
material negative impact on STIA’s Trail Use. The Parties designate the Port’s general
manager, or his/her designee, for the Port and STIA’s executive director, or his/her designee
for STIA as the persons appointed to receive notice and resolve issues that arise under this
Section D (“Designated Contact”). Either Party may, by providing written notice to the other
party, substitute another person as the Designated Contact. Within 14 days after receiving
STIA’s objection, the Port and STIA will commence with Steps 1 and 2 of the dispute
resolution process under Section X, and the Port will not enter into or execute the New Use
Agreement unless the Parties have reached a written consensus about the proposed New Use
In short, this means if the two designees cannot agree in writing on a new lease, then STIA can block the new lease based only on their subjective BELIEFS. There is no test that their beliefs are objective or a requirement that STIA makes these objections in good faith. All STIA has to say is “we BELIEVE the user agreement interferes” with one of the four criteria. Until an agreement can be made in writing, page four section D (4) states the “Port will not enter or execute the New User Agreement.” We have already heard from the POTB that STIA intends to use this section to block the lease extension the Port and OCSR have been working on.
Furthermore, in section F. Construction; Repair; Operation and Maintenance of Trail, the POTB is giving limitless construction rights to STIA including prevention of motorized vehicles.
(2) STIA may take all actions necessary to construct, maintain, and repair the Trail and
any segment of the Trail, including, without limitation, installing the following related utilities
and improvements (all of such improvements shall be considered part of the “Trail” as that
term is used herein): (i) trail surfaces, foot bridges and associated trail structures, (ii) trail
markers, signs, lights, benches, and other security enhancements, and (iii) any barriers, fences,
and gates necessary to prevent motorized vehicular access, and (iv) any other improvements
specifically approved in the Concept Plan.
So this is how it would go…
- Objection: STIA decides it believes that a user agreement does not comply with their concept plan, or negatively affects them, or imposes a negative material impact on them. The put it in writing.
- Discuss: One member of STIA and one member from the POTB get together to come to an agreement.
- Negotiation: If they don’t come to an agreement, they commence negotiations.
- Mediation: If they still can’t come to an agreement, the add a few mediators to assist.
- Litigation: If all the above fails to produce a written agreement, they go to court.
Then the Judge sees the POTB left the subjected criteria to the beliefs of STIA. Case closed.
IT’S NOT TOO LATE!
What can you do? The answer is simple, contact the Port of Tillamook Bay Commissioners and demand a revote! They voted to move forward with the lease, but they haven’t signed it. Tell the commissioners that they have not been told the truth about what the final lease is going to say and they should have an emergency board meeting to reject this version of the lease. Tell the Port board that you want a lease that is fair to the residence of Tillamook County and doesn’t give the control of Port Property to Salem bureaucrats who do not have the best interest of Tillamook County in mind. The OCSR wants this trail and has always volunteered to be a part of the organization and help build the trail. If the Port commissioners really what to proceed with this lease, that is their right. The issue is they have been telling us in negotiations that the Port would not be dictated to by Salem and yet they have been led down a path to a point that this is exactly is what will happen.
When contacting the commissioners, please be polite and respectful. No one in the OCSR wants to stop the trail. We just want the rails with trails we were all promised. Tell them they need to reject this lease because of these provisions and to force STIA to let the Port and the local community control who the use Port Property. Not all STIA members are the bureaucrats we speak of. The grass-roots community is still there and is just as appalled as we are!
Posted with this Call To Action is the entire lease sent to us by the Port, our attorney’s letter to the POTB pointing to the truth and the current agenda for the STIA meeting of February 2, 2018.
STIA will vote and sign the lease on February 2, 2018. Game Over.
Please act today because there is little time left and not only the OCSR’s future, but any other lease the Salem bureaucrats do not like will be blocked. This only hurts our local community, not them.
Email the sitting Port of Tillamook Bay Commissioners (publicly elected officials) here:
Jim Young: firstname.lastname@example.org
Bob Olsen: email@example.com
Carolyn Decker: firstname.lastname@example.org
Jerry Opdahl: email@example.com
Jack Mulder: firstname.lastname@example.org