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2000-1015-Ordinance No. 2000-034 Recorded 11/30/2000VOL: CJ2000 PAGE: 1015 RECORDED DOCUMENT STATE OF OREGON COUNTY OF DESCHUTES *02000-1015 * Vol -Page Printed: 12/04/2000 09:18:27 DO NOT REMOVE THIS CERTIFICATE (This certificate constitutes a part of the original instrument in accordance with ORS 205.180(2). Removal of this certificate may invalidate this certificate and affect the admissibility of the original instrument into evidence in any legal proceeding). I hereby certify that the attached instrument was received and duly recorded in Deschutes County records: DATE AND TIME: DOCUMENT TYPE: Nov. 30,2000; 11:27 a.m. Ordinance (CJ) NUMBER OF PAGES: 24 MARY SUE PENHOLLOW DESCHUTES COUNTY CLERK KN ED D 4 2000 REV L , COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Approving the Development Agree- ment By and Among the City of Bend, Deschutes County and Cascade Highlands Limited Partner- ship and Declaring an Emergency. ORDINANCE NO. 2000-034 WHEREAS, Deschutes County is authorized by ORS 94.504 to enter into Development Agreements with persons having legal or equitable interests in real property; and WHEREAS, the attached Development Agreement contains Recitals which describe the objectives of the Development Agreement and describe the ways and means for accomplishing the objectives, which Recitals are incorporated herein; and WHEREAS, the attached Development Agreement includes documents that are assembled as part of a common set of exhibits which support the Development Agreement; and WHEREAS, the Board of County Commissioners has conducted public hearings and has considered the testimony and written public comment relating to the Development Agreement; and WHEREAS, in accordance with the findings adopted contemporaneously with this Ordinance, the Board of County Commissioners finds that the attached Development Agreement, listed in Section 1 of this Ordinance, complies with all applicable land use goals, laws, rules and regulations. THE BOARD OF COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1: That the attached "Development Agreement By and Among the City of Bend, Deschutes County and Cascade Highlands Limited Partnership" is hereby approved. Section 2: That the Chair of the Board of County Commissioners is authorized to execute the attached Development Agreement referred to in Section 1 of this Ordinance, when such Development Agreement is fully executed and provided to Deschutes County by Cascade Highlands Limited Partnership. W 1;? J,.1 N000 I -Z :I I �Al 0C A0N) 00 Page 1 of 2— Ordinance No. 2000-034 (1115100) SMAS&RBOCC Ordinances\2000\2000-034.doc Section 3: EMERGENCY. This Ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. �� DATED this(Tcc,,L day of November, 2000. ATTEST: Recording Secretary Tom DeWolf, Commissione BOARD OF COUNTY COMMISSIONERS Page 2 of 2— Ordinance No. 2000-034 (11/5/00) S:U.ep1\B000 Ordinances\2000\2000-034.doc 11/08/00 DEVELOPMENT AGREEMENT BY AND AMONG CITY OF BEND, DESCHUTES COUNTY AND CASCADE HIGHLANDS LIMITED PARTNERSHIP This Development Agreement ("Agreement") is dated as of the _ day of , 2000, by and between CASCADE HIGHLANDS LIMITED PARTNERSHIP, an Oregon limited partnership ("CHLP"), THE CITY OF BEND, an Oregon municipal corporation (the "City") and DESCHUTES COUNTY, an Oregon municipal corporation (the "County"). Each of CHLP, the City and the County is hereinafter referred to as a "Party" and collectively as the "Parties." 1. Definitions: 1.1 "Bridge LID Petition" means that certain LID Petition of even date herewith signed by petitioners Brooks Resources Corporation, Skyliner Summit Limited Partnership, West Bend Property Company, LLC, Western Communications, Inc., dba The Bulletin and Bend-LaPine Administrative School District No. 1, pursuant to which the petitioners request the formation of a local improvement district as a funding mechanism for the construction costs associated with the Southern Bridge. 1.2 "CHLP Property" means the property on which the Proposed Development is to be constructed by CHLP, which CHLP Property is more particularly described on attached Exhibit B. 1.3 "Development Agreement" means each of the development agreements between a Property Owner and the City pursuant to ORS 94.504 (collectively, the "Development Agreements"). Three of the Property Owners, Western Communications, Inc., dba The Bulletin (the `Bulletin"), the Bend-LaPine Administrative School District No. 1 (the "School District") and Central Oregon Community College ("COCC") are not parties to a Development Agreement. 1.4 "Final Approval" shall mean the issuance of a development permit that reasonably allows the development described in Section 4 of the Development Agreement to proceed and the expiration of the period of appeal, or if an appeal is filed, the resolution of that appeal in a manner that reasonably allows the development described in Section 4 of the Development Agreement to proceed. 1.5 "Intersection LID Petition" means that certain LID Petition of even date herewith signed by nine of the Property Owners as petitioners, pursuant to which the petitioners request the formation of a local improvement district as a funding mechanism for the construction costs associated with the Projects. 1.6 "Off -Site Transportation Impact Mitigation" means mitigation of the increased burden that each Proposed Development will put on the a: CHLP Dev Agreement 11/08/00 transportation facilities of the City of Bend outside the property lines of the Proposed Development. The term "Off -Site Transportation Impact Mitigation" includes the "Other Improvements" identified in Exhibit C of each Development Agreement. 1.7 "Other Improvements" means those certain off-site transportation -related improvements to be completed by the Property Owners which are a part of their Off -Site Transportation Impact Mitigation but which are not to be completed pursuant to a local improvement district. The Other Improvements to be completed by a particular Property Owner are identified in Exhibit C to that Property Owner's Development Agreement. 1.8 "Project" means a traffic facility improvement described in Section 4 of the Intersection LID Petition and the Southern Bridge. 1.9 "Property Owners" are the twelve public and private entities, including CHLP, identified on Exhibit A who own property on the West Side of the City and who have formed a consortium to resolve the current and projected shortage of transportation facilities on the West Side. 1.10 "Proposed Development" means the development described in Section 4 of this Agreement. 1.11 "Responsible Property" means that portion of the property of each of the Property Owners identified in the Intersection LID Petition or the Bridge LID Petition subject to assessment for the cost of one or more Projects. "Responsible Property" shall not include portions of the property that are dedicated as public right-of-way, or dedicated for any other public purpose. 1.12 "Responsible Property Owner" means the Property Owner identified as being responsible for construction of the specific Project(s) listed for that Property Owner in the Bridge LID Petition or the Intersection LID Petition. 1.13 "Southern Bridge" means the bridge to be constructed over the Deschutes River where the proposed extension of Reed Market Road from the Parkway will cross the Deschutes River as provided in the City's General Plan. 1.14 "West Side" shall mean that portion of the City of Bend directly served by the transportation facilities described in Section 4 of the Intersection LID Petition, and the Southern Bridge. 2. Recitals: 2.1 Under the City of Bend General Plan and land use regulations, new development must be supported by adequate public facilities. The City's 2 a: CHLP Dev Agreement 11/08/00 General Plan provides that if the public facilities are not adequate, new development must either wait for the installation of the required facilities by the City or pay the cost if it occurs ahead of the City's capital improvement plan. Existing public transportation facilities serving the West Side of the City (the "West Side Transportation System") are not adequate to support all existing development and the new development contemplated in the immediately foreseeable future for the West Side of the City. The City is proceeding on the basis that its land use regulations require a system -wide fix to remedy the system -wide deficiency in the West Side Transportation System in order to support the contemplated new development. 2.2 The City does not have funds available to complete the projects necessary to create the additional capacity for the West Side Transportation System to support the new development within the timeframe in which the Property Owners wish to develop and to complete its other capital improvements. 2.3 The cost of supplying a system -wide remedy that will support the existing needs and the additional transportation burden that the new development will add to the West Side Transportation System is more than the amount that could be exacted from any single Proposed Development. Therefore, the Property Owners have concluded that collectively they can provide the necessary improvements to the West Side Transportation System to support the Proposed Developments. To this end, they have organized themselves as a consortium to accomplish these improvements. 2.4 It is the intention of the Parties that the legal mechanism for accomplishing these improvements will be expressed in Development Agreements, the Bridge LID Petition and the Intersection LID Petition (referred to as the "Consortium Agreements"). 2.5 Together, the Consortium Agreements will provide a realistic mechanism for constructing the 11 distinct traffic system improvements required to support the contemplated new development. These improvements will also make a significant contribution toward relieving existing traffic problems in the West Side Transportation System. Ten of these improvements are identified in Section 4 of the Intersection LID Petition, and the other is described in the Bridge LID Petition. The Consortium Agreements also describe Other Improvements which will be constructed by the Property Owners in connection with the Property Owners' Proposed Developments. 2.6 Traffic impact analyses show that the 10 distinct traffic system improvements identified in the Intersection LID Petition, the Bridge LID Petition, and the Other Improvements will be adequate to mitigate the off- site traffic impacts that the Property Owners' Proposed Developments will 3 a: CHLP Dev Agreement 11/08/00 have on the West Side Transportation System and make reasonable provision for the West Side Transportation System on a long-term basis. 2.7 ORS 94.504 authorizes cities and counties to enter into development agreements with private parties who own or otherwise have a legal interest in property in connection with the development of that property. Such development agreements may have a duration up to seven years and may establish each of the parties' rights and obligations in connection with certain aspects of the proposed developments. Each Property Owner wishes to definitively establish and discharge all of its obligations to mitigate the increased burden that each Proposed Development will put on the West Side transportation facilities of the City of Bend outside the property lines of the Proposed Development ("Off -Site Transportation Impact Mitigation") to the West Side Transportation System through a development agreement with the City. 2.8 Nine of the Property Owners (Brooks Resources Corporation; West Bend Property Company, LLC; Broken Top Limited Partnership; Skyliner Summit Limited Partnership; Century Park LLC; Shevlin Heights LP; West Side Meadows, LLC; Central Oregon Community College; and River Bend Limited Partnership) have signed a Petition to Form West Side Intersection Local Improvement District (the "Intersection LID Petition"), which, among other things, allocates responsibility for constructing 10 of the Projects among the Property Owners signing the Intersection LID Petition. 2.9 Five of the Property Owners (Brooks Resources Corporation, West Bend Property Company, LLC, Skyliner Summit Limited Partnership, Western Communications, Inc., dba The Bulletin and Bend-LaPine Administrative School District No. 1) have signed a Petition to Form Southern Bridge Local Improvement District (the "Bridge LID Petition"), which, among other things, allocates responsibility for the cost of constructing the Southern Bridge. The Property Owners have agreed upon a schedule for the completion of the Southern Bridge, and the amount to be contributed by each Property Owner, as provided in the Bridge LID Petition. 2.10 The Intersection LID Petition provides a schedule for commencement of construction of the Projects by the applicable Property Owner(s) and provides that a failure of a Property Owner to timely commence and complete its assigned Project(s) shall give the City the option to construct that Project under the Intersection LID Petition, assess that Property Owner's property for the cost of construction and impose liens against that Property Owner's property as permitted by law. 2.11 Execution of the Development Agreements, the Intersection LID Petition and the Bridge LID Petition by the City and all of the Property Owners, and the commitments created by these Consortium Agreements, will 4 a: CHLP Dev Agreement 11/08/00 supply the realistic provision for transportation facilities necessary to support new development to be served by the West Side Transportation System. In return, the Property Owners shall be relieved from any further Off -Site Transportation Impact Mitigation in connection with that Property Owner's Proposed Development(s). 2.12 Each Property Owner participating in one or both LID Petitions acknowledges that its property will be specially benefited by the Projects listed in the Intersection LID Petition and the Bridge LID Petition that include its property. Each Property Owner who is participating in one or both LID Petition also acknowledges that all of the properties in the Intersection LID and all of the properties in the Bridge LID will be specially benefited by all of the Projects. Each Property Owner participating in the LID Petitions therefore consents to the formation of the LIDs that include the Property Owner's property, subject to the conditions set forth herein. 2.13 It is the intention of the Parties that the Consortium Agreements are each integral parts of a collective effort with the City, intended to accomplish the objectives set out in these recitals. Therefore, the Development Agreements, the Intersection LID Petition and the Bridge LID Petition shall be construed accordingly, and in the event of any conflict between the terms and conditions of the Development Agreements and the LID Petitions, the LID Petitions shall prevail. 2.14 It is recognized that the Proposed Development of CHLP is located outside the city limits of the City. Consistent with the Joint Management Agreement between the City and Deschutes County, a three -party development agreement will be executed by the City, Deschutes County and CHLP. CHLP will contribute $500,000 to the City for the construction of the Southern Bridge. The Parties recognize that CHLP has substantially the same ownership as Broken Top Limited Partnership and Skyliner Summit Limited Partnership and that its contribution, considered as a part of the entire Consortium Agreements, addresses the impacts its Proposed Development will have on the West Side Transportation System. 2.15 Pursuant to the Joint Management Agreement, the County has land use permitting authority over the CHLP Property, but is required to consider the City's recommendations. 2.16 The CHLP Proposed Development (as defined in Section 4) includes a Destination Resort. Pursuant to Deschutes County Code Section 19.106, the City road systems would be affected by the CHLP Proposed Development. Accordingly, the impact of CHLP's Proposed Development on the City has been included in the traffic study (the "Traffic Study") prepared by Kittelson & Associates, the traffic consultant a: CHLP Dev Agreement 11/08/00 retained by the Property Owners. Both the City and the County have reviewed the study. 2.17 None of the Property Owners shall be responsible for the performance of obligations of any other Property Owners unless expressly stated in the Consortium Agreements. 2.17(a) The Parties acknowledge that the lawsuit filed by the Central Oregon Builders Association (COBA) and served upon the City October 10, 2000 may affect the amount of System Development Charges (SDCs) available for reimbursement as provided in the Consortium Agreements. This lawsuit (COBA v. City of Bend, Circuit Court No. OOCV0454AB) seeks to reduce the Street SDC. If COBA succeeds, the $3,250 SDC anticipated by the Consortium Agreements may be reduced and SDC collections available for reimbursement may also be reduced. Because of this possibility, the Parties agree that the provisions of the Consortium Agreements relating to reimbursement (including but not limited to Sec. 12.5 and Exhibit D of the Development Agreements, Sec. 8 of the Southern Bridge LID, and Sec. 8 of the Intersection LID) are modified to provide that the SDC imposed by the City shall be the amount provided in the Consortium Agreements, or the highest amount permitted by law, if the highest amount permitted by law is less than the amount provided in the Consortium Agreements. It is the intent of the Parties that this Section has been added only to accommodate the possibility of a reduction created by the COBA lawsuit, and not for any other purpose. In the event that SDC collections are reduced as a result of the COBA lawsuit, the Consortium Agreements shall continue in full force and effect except as modified by this Section, and the Parties shall in good faith continue to cooperate in the achievement of the purpose of the Consortium Agreements, specifically including the reimbursement to consortium members from SDCs as provided in City of Bend Street Policy No. 5, Sec. 6 (which applies when the potential SDC collections from sole recovery areas will not be adequate to fund full reimbursement, and shared area recovery area collections are available to pay reimbursement not otherwise collectible from sole recovery areas). 2.18 The Development Agreements, the Intersection LID Petition and the Bridge LID Petition shall be recorded and binding upon the Parties, their successors and assigns, and shall be enforceable as covenants running with the land; and may be enforced by any remedy provided by law. 2.19 The Parties agree that their execution of these Consortium Agreements represents their acceptance of the purpose expressed in these recitals, and the ways and means of accomplishing this purpose. Towards this end, the Parties expressly agree: 6 a: CHLP Dev Agreement 11108100 2.19.1 The Parties shall cooperate in good faith to the extent reasonably practicable to accomplish the purpose of the Consortium Agreements. This shall include, but not be limited to, cooperation in the defense of these agreements and their performance. 2.19.2 Other non -consortium development served by the West Side Transportation System shall be expected to make realistic provision for the mitigation of its impacts on transportation facilities as required by law, and in addition to that made by the Property Owners. 2.19.3 The terms and conditions of these Consortium Agreements are intended as an implementation of, and are consistent with, the City's land use laws, rules and regulations, together with all applicable state and federal laws, rules, and regulations. This includes, but is not limited to, a recognition that the performance required of the Parties by these Consortium Agreements is roughly proportional to the impacts the Proposed Developments will have on the West Side Transportation System; and that the public and private responsibilities involved in remedying the deficiencies in the West Side Transportation System in order to support the Proposed Developments are fairly and properly allocated. 2.19.4 The Parties further express their commitment to the objectives of these Consortium Agreements by waiving all claims of any kind or nature resulting from the Parties' agreement to accomplish the purpose contemplated by the Consortium Agreements, or the ways and means provided for accomplishing that purpose in the Consortium Agreements. This includes, but is not limited to any constitutional or statutory claims (for the taking of property or otherwise), and any claims against the other Party, its elected officials, officers, employees, or agents. This waiver does not include claims based upon a failure to perform these Consortium Agreements as expressly required by their terms and conditions. This waiver shall not prevent land use appeals of approvals or denials of the Proposed Developments. 2.20 These recitals are part of each of the Consortium Agreements. 3. Effective Date; Term of Agreement 3.1 This Agreement shall be effective upon adoption of the City ordinance approving this Agreement pursuant to ORS 94.508 (the "Effective Date"). The term (the "Term") of this Agreement shall commence on the Effective Date and shall continue for a period of seven years unless terminated sooner in accordance with the provisions contained herein. a: CHLP Dev Agreement 11/08/00 3.2 The Parties agree that the intent of the Parties and the essential purpose of this Agreement is to provide the City with a system -wide fix on the West Side in exchange for providing CHLP and the other Property Owners (a) the right to build their Proposed Development at the Maximum Density provided in Section 4.2 for a seven-year period without additional Off -Site Transportation Impact Mitigation, subject to CHLP and the other Property Owners obtaining Final Approval through the normal City (or County, in the case of CHLP) applications process, and (b) a seven-year vesting of the land use standards which will be applicable to such applications. The right to the Proposed Development at the Maximum Density without additional Off -Site Transportation Impact Mitigation and the vested standards during a full seven-year period is critical to CHLP's willingness to enter into this Agreement. The Parties understand that CHLP may not receive the benefit of such intent and purpose during the initial Term of this Development Agreement if there are delays (a) caused by third -party appeals of this Development Agreement and/or the related LID Petitions; (b) caused by third -party appeals of CHLP's land use applications in connection with the Proposed Development; and (c) in the land use applications process. If as a result of such delays CHLP does not receive Final Approval within one year of the Effective Date, the Parties agree that they will negotiate in good faith an extension of the Term of this Development Agreement to assure that CHLP has a 7 year period following Final Approval to proceed with its Proposed Development under the terms and conditions of this Development Agreement. At no time shall the Term exceed seven years. 4. Proposed Development 4.1 In future land use applications for the CHLP Property, CHLP expects to seek (1) approval of a conceptual master plan ("CMP") and final master plan ("IMP") for a destination resort (the "Destination Resort"). CHLP currently expects the Destination Resort will have the following components: a 200 -room conference hotel, a 280 -room resort hotel, an 18 -hole golf course, 15,000 square feet of retail uses in conjunction with the resort, 96 condominiums and 198 multi -family dwellings and 294 single-family dwellings; (2) approval of various discretionary approvals subsequent to the approval of the CMP and FMP related to subdivisions, lot line adjustments, conditional use, site plan or variances as necessary to implement the approvals in (1) above; and (3) approval of subdivision and associated plats for fifty-three lots of single-family dwellings in the URA - 10 zoning, not as a part of the Destination Resort. Collectively, 1, 2, and 3 are hereinafter referred to as the "Proposed Development." 4.2 For the purpose of determining the amount and kind of Off -Site Transportation Impact Mitigation required of CHLP's Proposed Development and the rights of CHLP vested herein, CHLP agrees that the density of its Proposed Development shall not exceed 294 single-family 8 a: CHLP Dev Agreement 11/08/00 dwellings, 198 multi -family dwellings, 96 condominiums, 15,000 square feet of retail, 18 -hole golf course, 280 -room resort hotel and 200 -room conference hotel, (collectively, the "Maximum Density"). The Maximum Density has been used by the Parties in the supporting Traffic Study to determine the estimated number of vehicle trips to be generated by the Proposed Development. To the extent that CHLP changes its mix of development to respond to market conditions but does not increase the number or distribution of estimated vehicle trips, CHLP shall not be deemed to have exceeded its Maximum Density. 5. Conditions to Parties' Obligations. The Parties' obligations are subject to each of the other Parties executing this Agreement. 6. Permitted Uses. The Property is within the UAR-10 Zone, Urban Area Reserve Zone, pursuant to Title 19 of the Deschutes County Code. Approximately 1200 acres (of the total of 1320) are zoned with a County Destination Resort overlay. The remaining acreage has been identified for consideration of a Destination Resort overlay as a part of the City's periodic review. Notwithstanding the content of any later -adopted zoning or development ordinance, development of the Proposed Development during the period of this Agreement shall be subject to the permitted uses contained in the relevant portions of the Deschutes County Code (the "DCC") as the same exist as of the Effective Date. Accordingly, the Destination Resort overlay applicable to the 1200 acre portion of the property shall be vested for the Proposed Development as of the Effective Date, and the City and the County agree that the same shall be unaffected during the Term of this Agreement even if the Property is annexed into the City during such time. This Section 6 shall not be read so as to limit any uses permitted under any future zoning changes approved by the applicable governmental body for any portion of the Property. 7. Density or Intensity of Use. Land use approval of the Proposed Development during the period of this Development Agreement shall be subject to the density and intensity of use provisions contained in the DCC which exist as of the Effective Date, notwithstanding the content of any subsequently adopted zoning or development ordinance. 8. Maximum Height and Size of Proposed Structures. Land use approval of the Proposed Development during the period of this Development Agreement shall be subject to the maximum structure height and size provisions contained in any applicable deed restrictions on the Property and any applicable portions of Title 19 of the DCC, whichever is more restrictive, notwithstanding the content of any subsequently adopted zoning or development ordinance. The Parties recognize that for the proposed application of a destination resort, Chapter 19.106 provides that building heights are established at the time of the review of the conceptual master plan and that the height provisions of the underlying zones do not apply. The height of structures is established by the Planning Director or Hearings Body at the time of the review of the conceptual master plan in accordance with the 9 a: CHIP Dev Agreement 11/08/00 standards and criteria of Chapter 19.106. CHLP agrees that it shall not, during the Term of this Agreement, make an application for a conceptual master plan seeking approval for any visitor -oriented buildings on the CHLP Property with a height in excess of 50 feet (except when the highest grade is more than10 feet above the lowest grade, then 50 feet plus 10 feet above lowest grade) nor an application for a residential use in the conceptual master plan exceeding a height of 35 feet. 9. Provisions for Reservation or Dedication of Land for Public Purposes. CHLP shall have no obligation to make off-site reservations or dedication of land within the City limits for public purposes (including easements and/or licenses) in connection with CHLP's Proposed Development. The necessity and/or specifics of any on-site reservations or dedications of land for public purposes (including easements and/or licenses) or any off-site reservations or dedications of land for public purposes (including easements and/or licenses) outside the City limits in connection with CHLP's Proposed Development will be determined by the County in reviewing CHLP's applications and applying County standards and ordinances in effect as of the Effective Date. 10. Fees and Charges. CHLP and its successors and assigns shall pay all applicable fees and charges then in effect for a particular application, except where the purpose or effect of such fees or charges is Off -Site Transportation Impact Mitigation within the City limits. In no event shall this Section 10 be construed so as to relieve CHLP or any purchaser of any portion of the CHLP Property from any obligation it may have to pay any applicable street SDCs. 11. Schedule and Procedure for Compliance Review. Commencing on the first anniversary of the Effective Date, CHLP shall prepare annual written reports of its compliance with the terms of this Agreement to the County and the City. Such reports shall include an update as to compliance with all schedules set forth herein. After receipt of such reports, the County or the City may request such additional or backup information as it deems reasonably necessary. 12. Responsibility for Providing Infrastructure and Services 12.1 Consistent with the Maximum Density rights vested in Section 4 and the development standards vested in Sections 6, 7, 8 and 10, CHLP agrees (a) to make a non-refundable Five Hundred Thousand Dollar ($500,000) contribution (the "Contribution") to the City toward the cost of construction of the Southern Bridge and (b) to complete those Other Improvements identified on attached Exhibit C. While CHLP's Contribution shall be non-refundable, the balance of the cost of the Southern Bridge to be paid by the other Property Owners will be reimbursed through the creation of a Local Improvement District or LID. The details of such LID shall be set forth in the Bridge LID Petition. Although CHLP shall not be obligated to pay its Contribution until such time as the City executes a contract with a general contractor for the 10 a: CHLP Dev Agreement 11/08/00 construction of the Southern Bridge, CHLP shall immediately post a letter of credit as provided in Section 12.2. The Contribution shall be used solely toward the cost of constructing the Southern Bridge or such other traffic facilities improvement(s) which the City constructs to handle the traffic that was to be routed over the Southern Bridge. 12.2 The Parties agree that CHLP shall pay the Contribution directly to the City. Within ten (10) business days following resolution to the reasonable satisfaction of CHLP of all appeals, if any, of the Consortium Agreements, CHLP shall, at its sole expense, obtain an irrevocable standby letter of credit from a financial institution licensed in the State of Oregon reasonably satisfactory to the City, guaranteeing payment of the Contribution regardless of whether or not CHLP completes its Proposed Development. The City shall have the right to draw on the letter of credit in the event CHLP, through no fault of the City, fails to pay the Contribution when due pursuant to Section 12.1. 12.3 The City and County acknowledge that (a) construction of the Southern Bridge is subject to objections raised by third parties which could interfere with that Project; (b) construction of any of the Projects could be delayed as a result of the City's failure to timely acquire necessary rights-of-way, (c) construction of any of the Projects could be delayed as a result of objections raised by third parties; and (d) construction of any Projects could be delayed by difficulties in obtaining approvals from the Oregon Department of Transportation ("ODOT") and any other federal, state or local regulatory body. The City and County agree that none of (a), (b), (c) or (d) shall be a basis for denying or delaying the approval of any of CHLP's land use applications in connection with the Proposed Development, grounds for declaring CHLP to be in default, or a basis for exacting additional Off -Site Transportation Impact Mitigation within the City limits from CHLP. 12.4 The City has reviewed the Traffic Study and agrees, as an affected jurisdiction, that CHLP's Contribution to be provided pursuant to this Development Agreement and the Projects to be provided pursuant to the Bridge LID Petition and the Intersection LID Petition shall be deemed to mitigate CHLP's impact on City transportation systems and satisfy CHLP's obligation to provide Off -Site Transportation Impact Mitigation in connection with the Maximum Density of the Proposed Development set forth in Section 4 so that, with respect to City transportation obligations, the Proposed Development is vested. The County acknowledges and accepts this determination. The City shall neither require nor recommend any additional transportation -related exactions or any further traffic studies relating to Off -Site Transportation Impact Mitigation within the City limits in connection with or as a condition to the approval of CHLP's Proposed Development. This shall include, but not be limited to, construction of off-site streets or intersections, improvement of off-site 11 a: CHLP Dev Agreement 11/08/00 intersections or other existing off-site transportation facilities, construction of off-site bicycle paths or pedestrian trails and dedication of off-site rights-of-way for any of the above -identified purposes. Notwithstanding the foregoing, CHLP's rights which are vested herein are dependent upon the Maximum Density of the Proposed Development set forth in Section 4 which is tied to the estimated number of vehicle trips to be generated by such Maximum Density. The Parties hereto understand that the mix of uses that make up the Maximum Density could change based on market forces. However, to the extent that CHLP submits land use applications that would increase the number of vehicle trips to be generated by the Proposed Development, the Proposed Development may be subject to additional off-site transportation exactions within the City limits based upon projected transportation impacts on City transportation facilities from the increased density, consistent with City policies and regulations. The Parties agree that this Development Agreement does not, however, resolve any issue relating to (1) transportation requirements as a result of the Proposed Development's impact on County or State transportation facilities; or (2) on-site transportation requirements. These County and State transportation and on-site transportation issues are reserved for future discretionary land use approval, and the County may require further studies and reviews relating thereto. 12.5 The Parties agree that there are certain actions or improvements that must be made in conjunction with the Projects and Other Improvements to be completed by the Property Owners to provide adequate facilities to support development which will impact the City's West Side Transportation System. These actions or improvements are not a part of the Property Owners' obligations and the City agrees to assure that such actions are taken and such improvements are made. As referenced in the supporting traffic studies, such actions and improvements include, but are not limited to, acquiring rights-of-way for those Projects for which the Property Owners do not already own the necessary rights-of-way, obtaining permits necessary for construction of the Projects, expanding some of the Projects as necessary from single -lane roundabouts to double - lane roundabouts and completing bicycle lanes where gaps exist along Shevlin Park Road. In no event shall the City be obligated to expend 'funds to take such actions or complete such improvements; the City may assure their completion by any appropriate means, including, without limitation, making them conditions to other future development, paying for them with systems development charges, paying for them with grants and/or including them in future capital improvement plans. 13. Assumptions Relating to the City's and the County's Ability to Serve Development; Continuing Effect of Agreement 12 a: CHLP Dev Agreement 11/08/00 13.1 ORS Section 94.504(6) requires that a Development Agreement "state the assumptions underlying the agreement that relate to the ability of the city or the county to serve the development." 13.2 The facts set forth in the Recitals are included in the assumptions underlying this Agreement. 13.3 The Parties operate under the assumption that construction of the Projects (including the Southern Bridge) will provide adequate off-site transportation infrastructure and facilities to support CHLP's Proposed Development. The adequacy of transportation facilities are determined with reference to the standards in effect as of the Effective Date. 13.4 The Parties agree that this Agreement does not involve any County approval of CHLP's Proposed Development (though it does involve the vesting of certain development standards and the County's acknowledgment of the City's determination, as an affected jurisdiction, of the adequacy of CHLP's mitigation of the Proposed Development's impacts on City transportation facilities). Such approval will be pursuant to future applications consistent with applicable County standards and codes. Accordingly, this Agreement makes no assumptions regarding the County's ability to serve the Proposed Development. 13.5 In the case of any change in regional policy or federal or state law or other change in circumstance which renders compliance with the Agreement impossible or unlawful, the Parties will attempt to give effect to the remainder of the Agreement, but only if the purposes set out in the recitals can be accomplished and such effect does not prejudice the substantial rights of either Party under the Agreement. 13.5.1 If the substantial rights of either Party are prejudiced by giving effect to the remainder of the Agreement, then the Parties shall negotiate in good faith to revise the Agreement to give effect to its original intent. 13.5.2 If the Parties fail to agree to an amended Agreement within ninety (90) days of the commencement of negotiations, then either Party may request that an arbitration panel determine an equitable effect for the remainder of the Agreement. The arbitration panel shall consist of 3 arbitrators, one of which shall be selected by CHLP, one of which shall be selected by the City, and the third of which shall be selected by the County. 13.5.3 If, because of a change in policy, law or circumstances, the Agreement fails of its essential purposes (construction of all of the traffic system improvements called for in the Intersection LID Petition, the Bridge LID Petition and this Development 13 a: CHLP Dev Agreement 11/08/00 Agreement; vesting of allowed uses and limitations on development conditions; vesting of maximum off-site transportation exactions within the City limits; and vesting of maximum permissible densities in connection therewith), then the Parties shall be placed into their original position to the extent practical. 13.5.4 As used herein, however, "change in circumstance" does not include changes in local government land development or land division regulations. 13.6 To the extent any local rule, ordinance, regulation or policy is adopted on a jurisdiction -wide basis that is not, in the reasonable discretion of CHLP, inconsistent with the substance, purpose, or conditions of this Development Agreement, then the local rule, ordinance, regulation or policy shall be applicable. 14. Assignability of Agreement. This Agreement shall be fully assignable, in whole or in part, by either Party and shall bind and inure to the benefit of the Parties and their respective successors and assigns. If any portion (other than lot sales to individuals or builders) of the CHLP Property is sold, the duties, rights and interests of CHLP under this Agreement shall become the duties, rights and responsibilities of the purchaser and CHLP. Notwithstanding the foregoing, no purchaser of an individual lot(s) shall have any rights hereunder. 15. Future Discretionary Approvals. 15.1 The City agrees to cooperate with CHLP in securing all future necessary land use permits and approvals for the Proposed Development needed from entities other than the City. 15.2 The following future discretionary approvals are the currently anticipated approvals that will be required for the Proposed Development: 15.2.1 Conceptual master plan and final master plan approvals for the Destination Resort, together with associated subdivisions, lot line adjustments, conditional uses, site plan or variances as necessary to implement the conceptual master plan and final master plan; and 15.2.2 Subdivision approval for single-family dwellings, not as a part of the Destination Resort, together with associated plats. 15.3 The Parties acknowledge that the provisions of CHLP's land use application, other than the provisions relating to Off -Site Transportation Impact Mitigation within the City limits, shall be the subject of future discretionary approvals by the County. The question of whether the County may approve the applications referred to in this Agreement, including the provisions of the land use applications referred to in Sections 14 a: CHLP Dev Agreement 11/08/00 4 (Proposed Development), 6 (Permitted Uses), 7 (Density or Intensity of Use), and 8 (Maximum Height and Size of Proposed Uses), or any other part of CHLP's land use application are reserved for future discretionary approvals, and are not resolved by the terms of this Agreement, the Intersection LID Petition or the Bridge LID Petition. Nothing in this Agreement resolves, adjudicates or dispenses with the responsibilities of CHLP or its Proposed Development for impacts or conditions of approval other than Off -Site Transportation Impact Mitigation within the City limits, and nothing herein operates as an approval (or preliminary approval) by County of CHLP's land use applications except as to Off -Site Transportation Impact Mitigation within the City limits. 15.4 The discretionary approvals shall be reviewed by the County in the same manner and subject to the same procedures and hearings requirements as all other similar land use applications filed at the time of the Effective Date. 16. Defaults 16.1 A breach of a material provision of this Agreement, whether by action or inaction of a Party which continues and is not remedied within thirty (30) days after another Party has given notice specifying the breach shall constitute a default by a Party. If the breach is of such a nature that it cannot reasonably be cured within such thirty -day period, the cure period shall be extended to such amount of time as is reasonable but only if the breaching Party promptly commences, and thereafter diligently prosecutes, such cure. 16.2 The exercise by any Party of any one or more of such remedies available to it shall not preclude the exercise by it, at the same or different time, of any other such remedy for the same default or breach or of any of its remedies for any other default or breach by another Party, including, without limitation, the right to compel specific performance. 17. Release of Development Agreement. The City and the County shall release developed lots from this Development Agreement upon the request of CHLP provided that the terms and conditions of this Development Agreement have been performed as they relate to the lot to be released. 18. Force Majeure 18.1 In the event that any Party (the "Delayed Party") is delayed or prevented from performing any of its obligations under this Agreement by reason of strikes, lockouts, labor problems, inability to procure materials, contractors, professionals, inability to obtain utilities or failure of utilities, laws or other governmental requirements, riots, war, or other cause not brought about by the Delayed Party, and not related to any financial 15 a: CHLP Dev Agreement 11/08/00 liability on the part of the Delayed Party, the time for performance of the obligation shall be extended by a period of time equal to the period of such delay or prevention. 18.2 The City's right under the Intersection LID Petition or the Bridge LID Petition to construct traffic system improvements shall not be affected by the provisions of Subsection 18.1. 19. Notices. Any notice, demand, request, approval, consent, or other communication (collectively referred to as a "Notice") concerning this Agreement or any matter arising in connection with this Agreement shall be in writing and addressed to the other Parties at the address set forth below. Any Notice shall be given by either: (i) personal delivery in which event it shall be deemed given on the date of delivery; or (ii) certified mail return receipt requested in which event it shall be deemed given three (3) business days after the date deposited in any post office, branch post office, or official depository. Any Party may change any address for the delivery of Notice to such Party, by giving Notice in accordance with the provisions of this Section. The attorneys for the Parties may give any Notice. Notices Addresses: If to CHLP: Cascade Highlands Limited Partnership c/o H. Williams Advisors, Inc. 1325 NW Flanders Portland, Oregon 97209 Attn: Dike Dame With a copy to: Ball Janik LLP 15 SW Colorado, Suite K Bend, Oregon 97702 Attn: Laura Craska Cooper If to the City: City of Bend Development Services 710 NW Wall Bend, OR 97701 Attn: Development Services Director If to the Countv: Deschutes County Office of Legal Counsel 1130 NW Harriman St. Bend, OR 97701 Attn: Mr. Richard L. Isham 20. Miscellaneous 20.1 City Funding. The Parties agree that any provision herein which requires the City to expend funds is contingent upon future appropriations as part 16 a: CHLP Dev Agreement 11/08/00 of the City budget process as provided in ORS 94.504(5). Nothing herein requires the City to appropriate such funds. 20.2 County Funding. The Parties agree that any provision herein which requires the County to expend funds is contingent upon future appropriations as part of the County budget process as provided in ORS 94.504(5). Nothing herein requires the County to appropriate such funds. 20.3 Waivers. No covenant, term or condition of this Agreement shall be deemed to have been waived by any Party, unless such waiver is in writing signed by the Party charged with such waiver. Any waiver of any provision of this Agreement, or any right or remedy, given on any one or more occasions shall not be deemed a waiver with respect to any other occasion. 20.4 Entire Agreement/Modifications. This Agreement, together with the Intersection LID Petition and the Bridge LID Petition (along with all exhibits incorporated therein) (collectively referred to as the "Consortium Agreements") constitutes the entire agreement between and among the Parties with respect to the subject matter herein contained and all prior negotiations, discussions, writings and agreements between the Parties with respect to the subject matter herein contained are superseded and of no further force and effect. This Agreement cannot be amended or modified without a writing signed by all of the Parties hereto. This Development Agreement, the Intersection LID Petition and the Bridge LID Petition are parts of a whole transaction between the Parties and shall be construed as a whole transaction. 20.5 Counterparts. This Agreement may be signed in one or more counterparts, each of which shall be an original and all of which, when taken together, shall constitute one and the same instrument. 20.6 Captions. The captions contained in this Agreement were inserted for the convenience of reference only. They do not in any manner define, limit, or describe the provisions of this Agreement or the intentions of the Parties. 20.7 Gender/Singular/Plural. Whenever masculine, feminine, neuter, singular, plural, conjunctive, or disjunctive terms are used in this Agreement, they shall be construed to read in whatever form is appropriate to make this Agreement applicable to all the Parties and all circumstances, except where the context of this Agreement clearly dictates otherwise. 20.8 Severability. Subject to Section 13.5, the unenforceability or invalidity of any provisions hereof shall not render any other provision herein contained unenforceable or invalid. 20.9 Time of Essence. Time is of the essence of this Agreement. 17 a: CHLP Dev Agreement 11/08/00 20. 10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon. IN WITNESS WHEREOF, the Parties have signed this Agreement as of the date set forth in the first paragraph of this Agreement. "CHLP" CASCADE HIGHLANDS LIMITED PARTNERSHIP, an Oregon limited partnership By Broken Top, Inc., Its General Partner By: Name: Title: "CITY" CITY OF BEND, an Oregon Municipal Corporation, By: Name: Title: "COUNTY" DESCHUTES COUNTY, an Oregon Municipal Corporation, By: Linda L. Swearingen, Chair 18 a: CHLP Dev Agreement 11/08/00 STATE OF OREGON )ss. COUNTY OF ) This instrument was acknowledged before me on by as of Cascade Highlands Limited Partnership. Signature of Notarial Officer My Commission Expires: STATE OF OREGON ) )ss. COUNTY OF ) This instrument was acknowledged before me on as County. Signature of Notarial Officer My Commission Expires: STATE OF OREGON ) )ss. COUNTY OF ) This instrument was acknowledged before me on as Bend. Signature of Notarial Officer My Commission Expires: 19 by of Deschutes by of the City of a: CHLP Dev Agreement Exhibit A Property Owners 1. Brooks Resources Corporation; 2. West Bend Property Company, LLC; 3. Broken Top Limited Partnership and Broken Top Development, LLC; 4. Skyliner Summit Limited Partnership and Broken Top Development, LLC; 5. Century Park LLC; 6. Shevlin Heights Limited Partnership; 7. River Bend Limited Partnership; 8. Central Oregon Community College; 9. Bend LaPine Administrative School District No. 1; 10. West Side Meadows, LLC; 11. Western Communications Inc., dba The Bulletin; and 12. Cascade Highlands Limited Partnership Exhibit B CHLP Property ADJUSTED 181100 TAX LOT 100 R1 A parcel of land, located in Section 1, Section 2, the east half of the east half (EI/2 E1/2) of Section 11, the southwest quarter (SWI/4), the west half of the northeast quarter (WI/2 NEI/4), and the northwest quarter (NWI/4) of Section 12, all in Township 18 South, Range 11 East, Willamette Meridian, Deschutes County, Oregon, more particularly described as follows: That parcel of land described in deed to Cascade Highlands Limited Partnership, recorded in volume 252, page 2196, on December 19, 1991, in Deschutes County Records, TOGETHER WITH: That portion of the southwest quarter (SWI/4) of Section 12, lying northerly of Cascade Lakes Highway, also known as Century Drive. EXCEPTING THEREFROM: That portion of the northwest quarter (NW 1/4) of section 1, conveyed to SKYLINERS SUMMIT LIMITED PARTNERSHIP, recorded June 28, 1996, in volume 414, page 2085, Deschutes County Records, and that portion of the northeast quarter of section 12, conveyed to SKYLINERS SUMMIT LIMITED PARTNERSHIP, recorded July 11, 1997, in volume 454, page 1916, Deschutes County Records, and that portion of Metolius Drive lying in the northeast quarter (NEI/4) of said section 12, and the SETA of said Section 1, ALSO EXCEPTING THEREFROM: That portion of the southwest quarter (SWI/4) of Section 12, within Campbell Road, Lundgren Road and Swarens Road, ALSO EXCEPTING THEREFROM: A parcel of land, located in the southwest quarter (SWI/4) of Section 12, Township 18 South, Range 11 East, Willamette Meridian, Deschutes County, Oregon, more particularly described as follows: Commencing at the center one-quarter corner of said section 12 (monumented by a 3" brass cap marked "David Evans and Associates", T18S, RI IE, C1/4, S12, PLS 1068, 1990, the initial point and the true point of beginning; thence South 00042'25" West along the east boundary of said SWI/4 of said section 12, as well as the west boundary of Lot 1, Block 7, "First On The Hill Sites", 450.34 feet; thence North 89017'35" West, 30.00 feet; thence South 00°42'25" West, 30.00 feet west of and parallel with said east boundary, 833.21 feet to the northerly right-of-way (R/W) of West Campbell Road, dedicated February, 1965 in Volume 9, Page 325, Deschutes County Commissioners Journals; thence along the arc of a 113.20 foot radius curve to the right, along said R/W, through a central angle of 28°47'00", an arc length of 56.87 feet (the chord of which bears South 15°05'55" West, 56.27 feet); thence South 29°29'25" West, along said R/W, 279.54 feet; thence along the arc of a 113.20 foot radius curve to the right, along said R/W, through a central angle of 41056'00", an are length of 82.85 feet (the chord of which bears South 50°27'25" West, 81.01 feet); thence South 71°25'25" West along said R/W, 306.80 feet; thence leaving said R/W, North 00°42'25" East, 530.00 feet west of and parallel with said east boundary, 301.85 feet; thence north 76030'00" East, 206.31 feet; thence North 00042'25" East, 330.00 feet west of and parallel with said east boundary, 415.00 feet; thence North 89°17'35" West, 200.00 feet; thence North 00°42'25" East, 530.00 feet west of and parallel with said east boundary, 400.00 feet; thence North 65000100" East, 221.97 feet; thence North 00°42'25" East, 330.00 feet west of and parallel with said east boundary, 470.00 feet to the north boundary of said SWIA; thence South 89°48'24" East along said north boundary, 330.01 feet to the true point of beginning. Exhibit C Other Improvements There are no other off-site improvements to be completed by CHLP within the City limits. The Parties recognize that improvements under the County's jurisdiction and as related to ODOT facilities such as improvements to Skyliners Road and construction of intersections on Skyliners Road and Century Drive will be subject to future land use review processes.