2001-53-Ordinance No. 2001-008 Recorded 2/2/2001VOL: CJ2001 PAGE: 53
RECORDED DOCUMENT
STATE OF OREGON
COUNTY OF DESCHUTES
*02001-53 * Vol -Page Printed: 02/12/2001 08:28:17
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:
Feb. 2,2001; 8:00 a.m.
Ordinance (CJ)
NUMBER OF PAGES: 17
MARY SUE PENHOLLOW
DESCHUTES COUNTY CLERK
KE U HED
F 1 2 2001
�pdl-59
BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON
An Ordinance Approving the Development * RECEIVE, -'P'
Agreement By and Among Barclay Meadows
Business Park, LLC, City of Sisters and Deschutes * h Lb 0 �: 2du I
County and Declaring an EmerCency.
DESCtiUTE;;
COUNTY �LrENK
ORDINANCE NO. 2001-008 p, 66 GLS
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 a hearing 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 Ordianace, 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 COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON,
ORDAINS as follows:
Section 1. That the attached "Development Agreement By and Among Barclay Meadows
Business Park, LLC, City of Sisters and Deschutes County" 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 Barclay Meadows Business Park,
LLC.
PAGE 1 of 2 - ORDINANCE NO. 2000-041
Development Agreement (Barclay Meadows)
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.
r
DATED this [ day o 001.
UBOARD OF COUNTY COMMISSIONERS
ATTEST:
Recording Secretary
PAGE 2 of 2 - ORDINANCE NO. 2000-041
Development Agreement (Barclay Meadows)
OF DESCHUTES COUNTY, OREGON
TOM D OLF, Ch
15EMIS R. LUKE, Commissioner
MIKf DALY, Commis/sillner
E7
LEGA NSEL
, 2001
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT, hereinafter referred to as "Agreement," is made
and entered into by and between CITY OF SISTERS, hereinafter referred to as "City";
DESCHUTES COUNTY, hereinafter referred to as "County;" and BARCLAY MEADOWS
BUSINESS PARK, L.L.C., hereinafter referred to as "Barclay Meadows."
RECITALS
A. Barclay Meadows owns a 35 acre parcel of real property identified on the
Deschutes County Assessor's Map as 15-10-04, Tax Lot 103, as more
particularly described in the attached Exhibit "A," and hereinafter referred to as
the "Barclay property."
B. The Sisters School District No. 6, hereinafter referred to as "School District,"
owns a 29 acre parcel of real property, hereinafter referred to as "School District
property," which is adjacent to the west of the Barclay property described above.
C. Both the School District property and the Barclay property are currently zoned
EFU and are located in Deschutes County immediately adjacent to the north but
just outside of the Sisters UGB boundary and the Sisters City limits.
D. Barclay Meadows (Deschutes County File No. PA-99-4/ZC-99-1) and School
District (Deschutes County File No. PA-99-5/ZC-99-3) have filed separate land
use applications with Deschutes County to bring their respective properties within
the Sisters UGB and rezone them Light Industrial. Both properties have been
approved for annexation to the City of Sisters as light industrial property. Once
the properties are inside the UGB, annexed to the City and zoned Light
Industrial, Barclay Meadows and School District intend to subdivide their
respective properties for ultimate light industrial development.
E. The intent of this Agreement is to provide for limitations on the types of industrial
uses allowed on the Barclay property described above, to provide a conceptual
plan for future subdivision and industrial development of the Barclay property
and to provide a plan for traffic improvements to address the impacts from
development of the Barclay property. This Agreement was developed in
conjunction with a similar agreement involving the School District property. The
two agreements are separate and distinct from one another but both are based
on similar development plans for the two properties, the material in the two land
use files referenced herein, and on a joint transportation study prepared by David
Evans and Associates analyzing the traffic impacts associated with industrial
development of the two properties.
F. It is also the intent of this Agreement to plan for the transportation
improvements and contributions that will be required under this Agreement.
DEVELOPMENT AGREEMENT - Page 1 of 14
Barclay Meadows, together with its respective assigns, voluntarily agrees to the
limitations and contributions described herein in order to gain the certainty and
benefits that this Agreement provides. City and County will benefit in that they
also will have certainty as to the development limitations, future subdivision and
industrial use plans and contributions to the transportation system as described
herein.
G. The parties acknowledge that City and the Oregon Department of Transportation
("ODOT") have initiated development of a Transportation System Plan ("TSP")
for City which will identify the locations of future transportation improvements
such as, but not limited to, traffic signals, turn lanes, parallel arterials and
collector routes, etc., set costs estimates and plan for funding of those
improvements, and establish street designations and levels of service or other
mobility standards for area roads and intersections, including recognizing Sisters
as a Special Transportation Area ("STA"). This Agreement is not intended to
supersede or impact the development of the TSP. Instead, this Agreement is
intended to provide a plan for transportation improvements to address the traffic
impacts from development of the two properties pursuant to the planning
responsibilities set forth in the Transportation Planning Rule at OAR -660-012-
0060. To the extent that the transportation facilities identified through the TSP
process differ or conflict with those facilities identified herein, the TSP shall
control and the monies contributed herein shall be used for the facilities identified
in the TSP.
H. Pursuant to the January 2000 Update to the Transportation Impact Study and
the Addendum to January 2000 Update to the Transportation Impact Study
prepared by David Evans and Associates and submitted to Deschutes County in
the two land use files referenced herein, the parties agree that the streets and
intersections which will be impacted by the ultimate development of the two
properties include U.S. Highway 20/1-ocust Street, U.S. Highway 20/Pine Street,
and the future intersection of U.S. Highway 20/McKinney Butte.
I. U.S. Highway 20 is a part of the state highway system under the jurisdiction and
control of the Oregon Transportation Commission. Pine Street, Locust Street
and most of the future McKinney Butte collector are a part of the City road
system under the jurisdiction and control of the City. Some of the conceptual
alignment of the future McKinney Butte collector may lie outside the Sisters UGB
which would be under the control of the County.
J. By the authority granted in ORS 810.210, ODOT is authorized to determine the
character or type of traffic control devices to be used, and to place or erect them
upon state highways at places where ODOT deems necessary for the safe and
expeditious control of traffic. No traffic control devices shall be erected,
maintained, or operated upon any state highway by any authority other than
ODOT, except with its written approval.
K. By the authority granted in ORS 366.425, ODOT may accept deposits of money
or an irrevocable letter of credit from any county, city, road district, person, firm,
or corporation for the performance of work on any public highway within the
DEVELOPMENT AGREEMENT - Page 2 of 14
State. When said money or a letter of credit is deposited, ODOT shall proceed
with the project on a schedule determined by ODOT. Money so deposited shall
be disbursed for the purpose for which it was deposited.
L. By the authority granted in ORS 94.504 through 94.528, City and County are
authorized to enter into Development Agreements to govern the development of
property within their respective jurisdictions.
M. To the extent that any of the monies paid to City under this Agreement are used
to fund improvements or a portion of improvements which are outside the
jurisdiction or control of the City, including traffic improvements on Highway 20
that fall within ODOT's jurisdiction and any portion of the future McKinney Butte
collector that my fall within Deschutes County's jurisdiction, City shall enter into
an appropriate agreement or take the necessary actions to disburse those
monies to the jurisdiction or agency responsible for installation of and/or control
of the improvement as part of the City's contribution for those improvements.
N. On behalf of City, this Agreement is to be authorized by City of Sisters
Ordinance No. 317 following a hearing held on December 27, 2000. Notice of
the hearing was provided to County, ODOT, nearby property owners and other
interested parties consistent with applicable law.
O. On behalf of the County, this Agreement was authorized by Deschutes County
Ordinance No. 2001-008 following a hearing held on December 27, 2000. Notice
of this hearing was provided to the City, ODOT, nearby property owners and
other interested parties consistent with applicable law.
P. The execution of this Agreement is in the best interest of the public health, safety
and welfare and is consistent with the Deschutes County Comprehensive Plan
and implementing ordinances and the Sisters Urban Area Comprehensive Plan
and implementing ordinances.
AGREEMENT
In consideration for the mutual promises and performance obligations of each party set
out in this Agreement, the parties agree as follows:
Effective Date and Term of Agreement:
This Agreement shall be effective following adoption of the City and County
ordinances approving this Agreement pursuant to ORS 94.508, and upon the
effective date of final adoption of the City ordinance finalizing annexation and
approving the zone change to the City Light Industrial Zone. This Agreement
shall begin as set forth above and its duration shall be in accordance with the
provisions of ORS 94.504(2)(a).
DEVELOPMENT AGREEMENT - Page 3 of 14
2. Conditions to Parties' Obligations:
The parties shall not be required to perform their respective obligations set out
herein unless and until the land use and development approvals listed in Section
1 above have been granted, the period for appeal of such approvals has passed
with no appeal being filed, or if an appeal is filed, the appeal has been finally
resolved to Barclay Meadows' satisfaction.
3. Permitted Uses:
Barclay Meadows shall be permitted, subject to Site Plan Review and, if
necessary, Conditional Use Approval, to use the property described herein for
the uses allowed under the current City of Sisters Zoning Ordinance, Section
15.02.150, Light Industrial Zoning, except that the following uses shall not be
allowed on the property referenced herein, the legal description of which is
attached hereto as Exhibit "A": boat building, fuel oil distributor, manufacture of
concrete products, asphalt or concrete batch plant, and wrecking or junk yard.
Other than the specific prohibitions described above, the uses allowed through
this Agreement do not preclude other uses allowed through a change of zoning
regulations or through additional permits or agreements. The maximum height
and size of any structures shall be as set forth in the applicable zoning
ordinance.
4. Minimum Setback:
Minimum setback from the north property line of the Barclay property shall be
50' for any building that does not exceed 20' in height and 100' for any building
over 20' in height. The setbacks from all other property lines shall be as set
forth in the applicable zoning ordinance.
5. Plan for Infrastructure Improvements and Conditions:
5.1 Pursuant to the January 2000 Update to Transportation Impact Study and
the Addendum to January 2000 Update to Transportation Impact Study,
the maximum development allowable on the subject properties would
result in 15% of the available 29 acres for the School District and the
available 28 acres for Barclay Meadows being reserved for infrastructure
and the remaining lot coverage being 35%. This results in a total
industrial park development of 375,815 square feet for School District
and 362,855 for Barclay Meadows. Based on Institute of Traffic
Engineers (ITE) trip generation equations for an industrial park, 569 PM
peak hour trips would be generated by the two sites (290 for School
District and 279 for Barclay Meadows).
5.2 Pursuant to the January 2000 Update to Transportation Impact Study,
School District at worst case scenario buildout in 2015 could generate the
following percentages of critical moves ("critical move" is the left -through
movement on the minor street) in the p.m. peak hour at these
DEVELOPMENT AGREEMENT - Page 4 of 14
intersections: 8.3% at the future McKinney Butte/U.S. Hwy. 20; 37.4% at
Locust/U.S. Hwy. 20; and 16.4% at Pine Street/U.S. Hwy. 20. Of the total
traffic entering the intersection from the McKinney Butte collector in 2015,
the School District property would contribute 11.8%.
5.3 Pursuant to the January 2000 Update to Transportation Impact Study and
the Addendum to January 2000 Update to Traffic Impact Study, Barclay
Meadows at worst case scenario buildout in 2015 could generate the
following percentages of critical moves in the p.m. peak hour at these
intersections: 11.2% at future McKinney Butte/U.S. Hwy. 20; 36.0% at
Locust/U.S. Hwy 20; and 15.7% at Pine Street/U.S. Hwy. 20. Of the total
traffic entering the intersection from the McKinney Butte collector in 2015,
the Barclay Meadows property would contribute 11.2%.
5.4 Subject to the contingencies provided for herein, Barclay Meadows
agrees to restrict development on the Barclay property to uses which will
not produce in excess of 203 PM peak hour trips, which when combined
with a similar restriction on the School District property (210 PM peak
hour trips) through the development agreement referenced herein for that
property, represents 68% of the "worst case scenario" PM peak hour trips
per day which would occur if unrestricted development were allowed.
5.5 ODOT anticipates that traffic signals, if ultimately approved through the
TSP process, at the future McKinney Butte/U.S. Hwy. 20, Pine/U.S. Hwy.
20 and Locust/U.S. Hwy. 20 will cost $150,000 each and that the future
McKinney Butte collector will cost $700,000 to construct. If the TSP does
not identify the transportation facility improvements referenced herein as
a part of the TSP, the School District and Barclay Meadows monies will
be put toward the transportation facility improvements which are identified
in the TSP.
5.6 In accordance with the timing and procedures set forth in paragraph 5.9,
Barclay Meadows agrees to pay fees to City to be used to fund the future
McKinney Butte collector, a traffic signal at each of the intersections of
U.S. Hwy. 20/McKinney Butte; U.S. Hwy. 20/1-ocust; and U.S. Hwy.
20/McKinney Butte.
5.7 With regard to the 413 trips identified herein, Barclay Meadows agrees to
calculate its contribution at the amounts identified in Table 1, as identified
in the Addendum to January 2000 Update to Transportation Impact
Study, in order to mitigate its traffic impacts.
DEVELOPMENT AGREEMENT - Page 5 of 14
5.8
TABLE 1
Locust Street Signal
$ 150,000
33.9%
$ 50,850
McKinney Butte Signal
$ 150,000
6.3%
$ 9,450
McKinney Butte
Collector
$ 700,000
9.1%
$ 63,700
Pine Street Signal
$ 150,000
12.5%
$ 19,950
Subtotal
$143,950
10% Contingency Fund
$ 14,395
TOTAL
$158,345
Cost Per PM Peak
Hour Trip
$ 754
Locust Street Signal
$ 150,000
32.9%
$ 49,350
McKinney Butte Signal
$ 150,000
6.3%
$ 9,450
McKinney Butte
Collector
$ 700,000
8.7%
$ 60,900
Pine Street Signal
$ 150,000
12.5%
$ 18,750
Subtotal
$138,450
10% Contingency Fund
$ 13,845
TOTAL
$152,295
Cost Per PM Peak
Hour Tri
$ 754
The 10% Contingency Fund referenced in the Table above is
intended to provide protection to the agencies and jurisdictions in
the event the cost of the improvements identified in the TSP for
the intersections referenced herein exceeds the costs estimated
herein. In the event the cost of such improvements does not
exceed the costs estimated herein, School District and Barclay
Meadows shall be given transportation SDC credits up to the
amount of the 10% contingency paid by each, as set forth above.
Such SDC credits shall be assignable and transferable.
It is intended that the Barclay property will be subdivided or partitioned
and ultimately developed through a site plan review and possibly a
conditional use process. The exaction payments referenced herein shall
be paid to the City upon subdivision or partition approval or, if the
property is not subdivided or partitioned, upon site plan approval,
whichever occurs first. The parties agree that the exaction payments set
DEVELOPMENT AGREEMENT - Page 6 of 14
forth herein are not personal obligations but instead apply to run with the
land for the property described in Exhibit "A". Barclay Meadows' exaction
referenced in Table 1 will be due and payable by the owner of the
property described in the attached Exhibit "A" upon the sooner of
subdivision/partition approval or site plan approval for the property,
regardless of the development status of the School District property.
5.9 The parties agree that the improvements planned for in this Agreement
mitigate all foreseeable impacts that the proposed developments will
have on the Sisters area transportation system as long as the land uses
are consistent with the development limitations as set forth herein. Once
development of either of the subject properties reaches a level that
generates the maximum trips allowed for that property as set forth in
paragraph 5.4, the owners of the remaining undeveloped lots will be
required to address the transportation impacts of their respective
developments in accordance with the law in effect at the time.
5.10 This Agreement contemplates that School District and Barclay Meadows
will contribute a total of 18% of the estimated cost of the future McKinney
Butte collector. In the event public or private grant funds become
available to fund the McKinney Butte collector in an amount in excess of
82% of the cost of the collector as identified in the adopted TSP, then
School District and Barclay Meadows shall be given a credit against
transportation SDC's equal to the total dollar amount by which such
grants or other funds exceeds 82% of the cost of the collector. Such SDC
credits shall be pro -rated with 9% to School District and 9% to Barclay
Meadows and shall be assignable and transferable.
5.11 In the event the provisions of OAR 660-012-0055(3) and (4) are found to
apply to the developments referenced herein, Barclay Meadows agrees
to comply with the relevant sections of the rule, including the provisions at
OAR 660-012-0045(3), (4)(a) - (f) and 5(d).
6. Form of Pavment and Accountinq:
6.1 In accordance with the timing and procedures set forth herein, Barclay
Meadows, or its assigns, shall make all payments in the form of cash or
check.
6.2 City shall accept and deposit Barclay's funds into a designated fund.
Receipt of the funds shall be acknowledged in writing by the recipient
and credited towards the overall contribution of Barclay Meadows.
7. Continuing Effect of Agreement:
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 such effect does not prejudice the substantial rights of
DEVELOPMENT AGREEMENT - Page 7 of 14
any party under the Agreement. If the substantial rights of any 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. If the parties fail to agree to an amended Agreement within ninety (90)
days of the commencement of negotiations, then any party may request that an
arbitrator give an equitable effect to the remainder of the Agreement, and the
Agreement shall thereafter be amended pursuant to the order of the arbitrator.
If, because of a change in policy, law or circumstance, the Agreement fails of its
essential purpose (vesting of allowed uses, limitations on uses and development
conditions, planning for transportation facility improvements), then the parties
shall be placed into their original position to the extent practical. As used herein,
however, "change in circumstance" does not include changes in local
government land development or land division regulations. It is the intent of this
Agreement to vest development rights and conditions, including but not limited to
the permitted uses, infrastructure improvements and fees and charges as set
forth herein, notwithstanding any change in local ordinance or policy. To the
extent any local rule, ordinance, regulation or policy is adopted on a jurisdiction -
wide bases, and is not inconsistent with the vested development rights and
conditions, the local rule, ordinance, regulation or policy shall be applicable.
8. Assignability of Agreement:
This Agreement shall be fully assignable, in whole or in part, by any party and
shall bind and inure to the benefit of the parties and their respective assigns and
successors. If any lot of the Barclay property is sold, the rights and interests of
Barclay Meadows under this Agreement shall inure to benefit of the purchaser.
The transfer of any property subject to this Agreement shall relieve Barclay
Meadows of all further obligations under this Agreement as those obligations
pertain to or are proportionally allocable to the property transferred.
9. Land Use/Annexation:
9.1 Consistent with the above provisions, the parties agree to cooperate to
secure the necessary permits and approvals for the annexation,
subdivision of and ultimate light industrial development of the properties
referenced herein. The following approvals are the anticipated future
approvals necessary for the development described herein:
9.1.1 Plan amendment, goal exception and zone change as pending
before Deschutes County in File Nos. PA-99-4/ZC-99-1 (Barclay
Meadows) and PA-99-5/ZC-99-3 (School District);
9.1.2 Annexation to City of Sisters and zone change approval to City
Light Industrial Zoning;
9.1.3 Subdivision approval pursuant to the terms, restrictions and
requirements set forth in the City of Sisters Code; and
DEVELOPMENT AGREEMENT - Page 8 of 14
9.1.4 Development permit approval pursuant to the terms, restrictions
and requirements set forth in the City of Sisters Code.
10. Default: Remedy:
10.1 Default/Cure. The following shall constitute defaults on the part of a
party:
10.1.1 A breach of a material provision of this Agreement, whether by
action or inaction of a party which continues and is not remedied
within sixty (60) days after the other party has given notice
specifying the breach; provided that if the non -breaching party
determines that such breach cannot with due diligence by cured
within a period of sixty (60) days, the non -breaching party may
allow the breaching party a longer period of time to cure the
breach, and in such event the breach shall not constitute a default
so long as the breaching party diligently proceeds to affect a cure
and the cure is accomplished within the longer period of time
granted by the non -breaching party; or
10.1.2 Any assignment by a party for the benefit of creditors, or
adjudication as a bankrupt, or appointment of a receiver, trustee
or creditor's committee over a party.
10.2 Remedies. Each party shall have all available remedies at law or in
equity to recover damages and compel the performance of the other
party pursuant to this Agreement. The rights and remedies afforded
under this Agreement are not exclusive and shall be in addition to and
cumulative with any and all rights otherwise available at law or in equity.
The exercise by any party of any one or more of such remedies 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 the other parties, including, without
limitation, the right to compel specific performance.
11. Amendment or Termination of Agreement:
11.1 This Agreement may be amended or terminated by the mutual consent of
the parties or their assigns or successors in interest. Any amendment
which relates to the permitted uses, development limitations or monetary
contributions shall require a public hearing before the parties may
execute an amendment. Any other amendment shall not require a public
hearing.
11.2 Any termination of this agreement shall not prejudice any rights or
obligations accrued to the parties prior to termination.
DEVELOPMENT AGREEMENT - Page 9 of 14
11.3 In the event of termination, City shall return all funds collected under this
Agreement to the person who paid the funds and adjust any SDC credits
accordingly.
12. Miscellaneous Provisions:
12.1 Notice. A notice or communication under this Agreement by any Party
shall be dispatched by registered or certified mail, postage prepaid, return
receipt requested, and
12.1.1 In the case of a notice or communication to Barclay Meadows,
addressed as follows:
ATTN:
In the case of a notice or communication to the County,
addressed as follows:
ATTN:
In the case of a notice or communication to City, addressed as
follows:
ATTN:
or addressed in such a way in respect to a Party as that Party
may, from time to time, designate in writing dispatched as
provided in this section.
12.2 Enforcement. Both City and County shall have the power to enforce this
Agreement until such time as the property described in Exhibit "A" is
annexed to City and all applicable appeal deadlines associated with the
annexation have expired. After annexation is complete and all applicable
deadlines have expired, the subject property will be outside of county
jurisdictional boundaries and City will be the sole regulatory body
authorized to administer, monitor compliance and enforce this
Agreement.
DEVELOPMENT AGREEMENT - Page 10 of 14
12.3 Compliance Review. The City shall monitor compliance on a continual
basis as Barclay Meadows submits subdivision and/or development
applications.
12.4 Construction of Improvements. Construction of any approved structures
may begin at anytime after the effective date of this Agreement and final
approval of the structure. Such construction shall be completed within
the time period specified in the construction approval document.
12.5 Headings. Any titles of the sections of this Agreement are inserted for
convenience of reference only and shall be disregarded in construing or
interpreting any of its provisions.
12.6 Counterparts. This Agreement may be executed in one or more original
counterparts, each of which shall be deemed to be an original for all
purposes but all of which shall constitute one and the same Agreement.
12.7 Waivers. No waiver made by any Party with respect to the performance,
or manner or time thereof, of any obligation of the other parties or any
condition inuring to its benefit under this Agreement shall be considered a
waiver of any other rights of the Party making the waiver. No waiver by
any party of any provision of this Agreement or any breach thereof shall
be of any force or effect unless in writing; and no such waiver shall be
construed to be a continuing waiver.
12.8 Attorneys' Fees. In the event of a suit, action, arbitration, or other
proceeding of any nature whatsoever, including, without limitation, any
proceeding under U.S. Bankruptcy Code, is instituted to interpret or
enforce any provision of this Agreement, or with respect to any dispute
relating to this Agreement, including, without limitation, any action in
which a declaration of rights is sought or an action for rescission, the
prevailing Party shall be entitled to recover from the losing Party its
reasonable attorneys, paralegals, accountants, and other experts fees
and all other fees, costs, and expenses actually incurred and reasonably
necessary in connection therewith, as determined by the judge or
arbitrator at trial or arbitration, as the case may be, or on any appeal or
review, in addition to all other amounts provided by law. This provision
shall cover costs and attorneys' fees related to or with respect to
proceedings in Federal Bankruptcy Courts, including those related to
issues unique to bankruptcy law.
12.9 Time of the Essence. Time is of the essence of this Agreement.
12.10 Choice of Law. This Agreement shall be interpreted under the laws of the
State of Oregon.
12.11 Calculation of Time. All periods of time referred to herein shall include
Saturdays, Sundays, and legal holidays in the State of Oregon, except
that if the last day of any period falls on any Saturday, Sunday, or legal
DEVELOPMENT AGREEMENT - Page 11 of 14
holiday in the State of Oregon, the period shall be extended to include the
next days which is not a Saturday, Sunday, or such a holiday.
12.12 Construction. In construing this Agreement, singular pronouns shall be
taken to mean and include the plural and the masculine pronoun shall be
taken to mean and include the feminine and the neuter, as the context
may require.
12.13 Severability. If any clause, sentence or any other portion of the terms
and conditions of this Agreement becomes illegal, null or void for any
reason, the remaining portions will remain in full force and effect to the
fullest extent permitted by law.
12.14 Place of Enforcement. Any action or suit to enforce or construe any
provision of this Agreement by any Party shall be brought in the Circuit
Court of the State of Oregon for Deschutes County, or the United States
District Court for the District of Oregon.
12.15 Good Faith and Reasonableness. The Parties intend that the obligations
of good faith and fair dealing apply to this Agreement generally and that
no negative inferences be drawn by the absence of an explicit obligation
to be reasonable in any portion of this Agreement. The obligation to be
reasonable shall only be negated if arbitrariness is clearly and explicitly
permitted as to the specific item in question, such as in the case of a
Party being given "sole discretion" or being allowed to make a decision in
its "sole judgment."
12.16 Condition of City/County Obligations. All City/County obligations
pursuant to this Agreement which require the expenditure of funds are
contingent upon future appropriations by the City/County as part of the
local budget process. Nothing in this Agreement implies an obligation on
the City/County to appropriate any such monies.
12.17 Cooperation in the Event of Legal Challenge. In the event of any legal
action instituted by a third party or other governmental entity or official
challenging the validity of any provision of this Agreement, the parties
agree to cooperate in defending such action.
12.18 Enforced Delay, Extension of Times of Performance. In addition to the
specific provisions of this Agreement, performance by any party shall not
be in default where delays or default is due to war, insurrection, strikes,
walkouts, riots, floods, drought, earthquakes, fires, casualties, acts of
God, governmental restrictions imposed or mandated by governmental
entities other than the City of Sisters or Deschutes County, enactment of
conflicting state or federal laws or regulations, new or supplementary
environmental regulation, litigation or similar bases for excused
performance which is not within reasonable control of the party to be
excused.
DEVELOPMENT AGREEMENT - Page 12 of 14
12.19 No Third -Party Beneficiaries. Barclay Meadows, City and County and
their successors and assigns are the only parties to this Agreement and
are the only parties entitled to enforce its terms. Nothing in this
Agreement gives, is intended to give, or shall be construed to give or
provide, any benefit or right, whether directly or indirectly or otherwise, to
third persons unless such third persons are individually identified by
name herein and expressly described as intended beneficiaries of the
terms of this Agreement.
12.20 Other Necessary Acts. All parties shall execute and deliver to the other
parties all such further instruments and documents as may be reasonably
necessary to carry out this Agreement in order to provide and secure to
the other parties the full and complete enjoyment of rights and privileges
hereunder.
12.21 Entire Agreement. This Agreement and attached exhibits constitute the
entire agreement between the parties on the subject matter hereof. This
agreement shall be binding and shall inure to the benefit of the parties
and their successors or assigns. There are no understandings,
agreements, or representations, oral or written, not specified herein
regarding this agreement. No waiver, consent, modification or change of
terms of this agreement shall bind either party unless in writing and
signed by both parties and all necessary approvals have been obtained.
Such waiver, consent, modification or change, if made, shall be effective
only in the specific instance and for the specific purpose given. The
failure of City to enforce any provision of this agreement shall not
constitute a waiver by City of that or any other provision.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year hereinafter written.
City of Sisters
By
Title:
Date
DEVELOPMENT AGREEMENT - Page 13 of 14
STATE OF OREGON )
) ss.
County of Deschutes )
The foregoing was acknowledged before me by
as for the City of Sisters, this day of
, 2001.
Notary Public for Oregon
Barclay Meadows, L.L.C.
By
Title
Date
STATE OF OREGON )
ss.
County of Deschutes )
The foregoing was acknowledged before me by
as for Barclay Meadows LLC, this day of
, 2001.
STATE OF OREGON
County of Deschutes
The foregoing was
as &AA- l (A (vKL vk
Notary Public for Oregon
Deschutes County
By
Title
ss.
2001.
~kL SEAL
HUNNIE BAKER
NOTAR'?v PUBLIC -OREGON
COMMISSION NO. 321026
fie. S esu tes5 C
Date "" "- ° �Q l�.tS- _ . __
Bill31 e:to
ed before me by _`61v-- t. 0)6 (4�
Deschutes County, this 3/ qday of
DEVELOPMENT AGREEMENT - Page 14 of 14
Notary Public for Oregon
RopcRTr
A Parcel of land situated in the Northwest Quarter (NW '/4) of Section 4,
Township 15 South, Range 10, East of the Willamette Meridian, Deschutes
County, Oregon being more particularly described as follows:
Beginning at a 5/8" iron rod on the West line of said Section 4, which bears
N00003'45"W, 75.00 feet from the West Quarter comer of said section;
Thence N00°3'45"W, on said West line, 916.21 feet to a 5/8" iron rod at the
Southwest comer of "Trapper Point, First Addition" a subdivision of record;
Thence N89°55'57"E, on the South line of said "Trapper Point, First
Addition", 1319.52 feet to a 5/8" iron rod; Thence S00°05'57"E, 988.49 feet
to a 5/8" iron rod at the Center -West Sixteenth comer of said Section 4;
Thence S89°49' 17"W, 1026.45 feet to a 5/8" iron rod; Thence
N00007'58"W, 75.00 feet to a 5/8" iron rod; Thence S89°47'28"W, 293.62
feet to the point of Beginning.
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