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2002-857-Minutes for Meeting May 14,2002 Recorded 5/20/20021130 N.W. Harriman St., Bend, Oregon 97701-1947 (541) 388-6570 • Fax (541) 388-4752 www.deschutes.org Tom De Wolf Dennis R. Luke MINUTES OF PUBLIC HEARING Mike Daly DESCHUTES COUNTY BOARD OF COMMISSIONERS TUESDAY, MAY 149 2002 The project name is the Resort at Pronghorn (previously referred to as Huntington Ranch Resort), and the applicant is High Desert Development Partners, LLC. The subject of this hearing is a decision by the Deschutes County Board of Commissioners on the approval of an application for a Final Master Plan (FMP) for a 640 -acre destination resort in the Exclusive Farm use (EFU-AL) and Multiple Use Agricultural (MU4-10) zones, with a Destination Resort (DR) overlay zone. In addition to considering approval of the Final Master Plan, the Board was to review the required Memorandum of Understanding between the Applicant (High Desert Development Partners, LLC), the County and the Bureau of Land Management, and a Development Agreement between the applicant and the County. Present were Commissioners Tom De Wolf, Dennis R. Luke and Michael M. Daly. Also present were Laurie Craghead, Legal Counsel; George Read, Paul Blikstad and Kevin Harrison, Community Development; Tom Blust, Road Department; a Media Representative of Z-21 KTVZ, Jeff Mullins of KBND Radio; Jenny Slater of the Bulletin; and approximately25 other citizens. Chair Tom DeWolf opened the meeting at 3: 00 p.m. He read the preliminary opening statement at this time. (A copy is attached as Exhibit A.) Contained within the preliminary statement, regarding pre -hearing contacts, bias and conflicts of interest: Do any of the Commissioners have any ex -parte contacts, prior hearing observations; bias; or conflicts of interest to declare? Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 1 of 13 Pages Application for Approval of Final Master Plan Quality Services Performed with Pride LUKE: Just the previous land use hearing. DALY: I have none. DEWOLF: I don't, either. Does any party wish to challenge any Commissioner based on ex -parte contacts, bias or conflicts of interest? LUKE: I was at a reception at the site of one of the new golf courses when Jack Nicklaus came. DALY: I was there, too. No challenges were offered. Iei 114 About keeping the record open -- if there are no opponents at a hearing, do you still have to do the time period? CRAGHEAD: It's upon request. Also, no Hearings Officer's decision or a record before the Hearings Officer is a part of this decision. DEWOLF: I was told there was a pending appeal, and received information by certified mail that the notice of appeal has been withdrawn. I can make copies of that letter if anyone wants one. Also, our intent is to conclude tonight's meet by 5:00 p.m. if at all possible, due to some evening appointments. BLIKSTAD: For the record, this is being held not only for a public hearing on the final master plan, but is also in regard to the development agreement. He then gave a brief overview of applicable criteria, and read his staff report at this time. (A copy is attached as Exhibit B) LUKE: In regard to the trail system mentioned, is that on the property? Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 2 of 13 Pages Application for Approval of Final Master Plan BLIKSTAD: Yes. Permission would likely be required from BLM to put trails on BLM land. Also, please be aware that the 150 -day period ends on September 19. DEWOLF: Your report is considerably beyond what was in our original staff report. I would like to get the entire document. CRAGHEAD: The reason we're here now is that the Board needs to approve the Memorandum of Understanding and the development agreement, and the thought is that it would be the most prudent to hear or approve all three at the same time, instead of doing them separately. The Memorandum of Understanding has been signed by the BLM and the applicant. I have reviewed it and found no problems with it. The development agreement is not yet finalized, as there are some details to work out regarding proportional shares. The Final Master Plan is the other item. NANCY CRAVEN (an attorney representing the applicants): Tom Hix will give the current status of the plan. I will address the issues Paul raised in his report, and will submit the appropriate documents to bring you all up to speed. The meat of the issue is the development and improvement agreement regarding the proportional share of the cost of road development. TOM HIX: I'm the managing member of HD Development Partners. I want to compliment County staff and the representatives of the BLM for their work over past 30 months. Where the resort will be located, within 20,000 acres of BLM, creates some development challenges. I feel we all worked well together in getting over a variety of obstacles. At this time he distributed copies of brochures of the land planning (a copy is attached as Exhibit Q. He then referred to oversized maps of the area, showing the property, surrounding properties and the road system. He explained the goals and vision behind the development of the resort, and the types of amenities and residences it would include. Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 3 of 13 Pages Application for Approval of Final Master Plan He also said that foundations had been put into place for wildlife habitat creation and maintenance, and to benefit affordable housing projects in Deschutes County. This is to be based on areal estate transfer tax. He also stated that the equestrian element has been removed. HIX: The final location of the secondary access road still needs to be determined. Temporarily Sheridan Road will be the emergency access road. LUKE: I thought we originally talked about the access road tying into 19th Street. DEWOLF: Regarding the question Commissioner Luke raised. At the hearing last year, everyone was to work toward a connection with 19th Street. Is everyone still on that same page? HIX: Yes. LUKE: The plan is to allow through traffic from Powell Butte Highway, one way or another, so that the public will be able to go around the resort. ROBERT TOWNE (Field Manager with BLM): It is undetermined how the secondary will turn out. We only granted a right of way for emergency access. DEWOLF: Our intent from the last hearing is ultimately to have a road from Powell Butte Highway to somewhere around 19th Street. We realize that none of this is finalized. LUKE: We don't want to see a dead-end at the resort. DEWOLF: We want to clarify that is what everyone is working for so everyone is on the same page. Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 4 of 13 Pages Application for Approval of Final Master Plan CRAVEN: I am submitting a variety of exhibits for the record. (These were distributed to the Board at this time). ■ The actual grants for the primary access and interim secondary emergency access (Exhibit D). ■ A letter from an attorney representing ARLU DeCo, withdrawing their appeal (Exhibit E). ■ Documents from the FAA and Oregon Aeronautics, showing that the airport on the property has been abandoned. (Exhibit F.) ■ As required by the Conceptual Master Plan approval, an agreement with the military needs to be developed; a letter agreement with them is now in place. (Exhibit G.) ■ Some items in the wildlife mitigation plan were deleted in error; these pages are being replaced (Exhibit H). CRAVEN: The CCR's (Covenants, Conditions and Restrictions; copy attached as Exhibit I) do require that 50% open space be maintained. There are 440 acres of open space, and only 321 acres are required. The other document is a Memorandum of Understanding with the BLM. (Copy attached as Exhibit J.) We are working with County Counsel on this document. It was tailored off of the Conceptual Master Plan approval, which talks about cooperation between the parties. CRAGHEAD: I don't think this will be a problem. CRAVEN: The last issue is the most substantive. The improvement or development agreement is to address a proportionate responsibility of developing a road connection to the north. We drafted a development agreement, and County Road and Planning are also working on this. We identified in a draft that if something other than 19th Street is chosen, it is likely no other participants will be involved in the funding. Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 5 of 13 Pages Application for Approval of Final Master Plan CRAVEN: We suggest that when 50% build -out is reached, a traffic study be undertaken to analyze the proportionate responsibility and payment of the proportional amount. In our view this is the fairest way to determine our share. DALY: How will you sort it out? CRAVEN: Probably by the people leaving the resort. DALY: You would do a count at 50% build -out? CRAVEN: We may have to try to anticipate usage based on that. We also suggested that if other participants should become parties to this, a local improvement district be formed, especially if there is development on the south side of Redmond. LUKE: This is a joint decision of the BLM and the County and other interested parties. CRAVEN: We're only suggesting that until further clarification can be made, a traffic analysis is a fair way of allocating financial responsibility. LUKE: There has been a good cooperative process with the BLM, the City of Redmond and the County in that general area. It is our hope that it is extended all the way to Deschutes Junction, and this may occur before 50% build -out. There is some major planning going on. Can this MOU be adjusted later, if conditions change? CRAGHEAD: It is a condition of the Final Master Plan, and a public process would be required to change later. Determining allocations would be another land use process. By not setting dollar amounts and standards now, it would mean an improper delaying of the decision. Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 6 of 13 Pages Application for Approval of Final Master Plan DEWOLF: We don't have the final plan before us today, so it would be helpful for all of you to talk and come to us with some recommendations. CRAVEN: This will need some time to be resolved. We are interested in getting this resolved quickly. The Conceptual Master Plan already talks about standards, and the percentage of allocation can be determined. LUKE: There has been a problem in Sunriver, as they have in their CCR's a rule about no discharge of firearms, but the Sheriffs Office can't enforce it. So Sunriver is now putting in a no -shooting ordinance, but this requires getting signatures from the owners. I suggest you work with staff now to do that now so the Sheriffs Office will have some enforcement power later on. The U.S. Forest Service has been very cooperative with Sunriver in this regard, and has closed some areas near Sunriver to shooting. People are used to doing that out where your new resort will be. DEWOLF: Are there any other proponents who wish to speak? No responses were received. DEWOLF: Any opponents wish to speak? MIKE LOVELY (Citizen): I'm not opposed to the project, but I'm worried about potential traffic in Boonesborough. I want this to stay on the radar. I'd also like to see it written somewhere that once the development is built, they won't want to move the Redmond Airport. LUKE: The State did a full study regarding airports, which resulted in the protection of certain airports, and Redmond Airport is one of them, as long as airport activities are being conducted. Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 7 of 13 Pages Application for Approval of Final Master Plan LOVELY: The resort is a very good project. JACK THORNTON (Citizen): I'm curious. Why are they using the one road for an access road, since it is not convenient. DEWOLF: It baffles me, too. LUKE: There is a fire station there. THORNTON: The applicants came to the fire station, and the fire station people said that it's the first time someone ever came to them to ask where they'd like the new station. HIM The concept is to create a true destination resort. The idea is to create a destination resort experience, and driving around 126, and coming in that way is more of a destination feel; it was purposely designed to take some time to get there. LUKE: Their sewage is also going to Bend, and they will be taking water from the plant as well, about 2.5 million gallons a day. THORNTON: Can someone show me on the map where Boonesborough and Sylvan Estates are in relation to the roads and the resort? At this time, these items were pointed out to Mr. Thornton. CHUCK MCGRAW (Senior Planner, City of Redmond): The City of Redmond is very interested in the final solution to the secondary access and who pays for what. The City is more in favor of the 19th Street connection, and it would be closer to the existing fire stations. There are problems if you look at 126 for this. It will eventually be realigned as well. Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 8 of 13 Pages Application for Approval of Final Master Plan MCGRAW: The City of Redmond would like to be a party to or at least be able to review the Memorandum of Understanding. I share the concerns regarding the traffic impact study. The City is in favor of the resort, and sees it as an economic benefit; but there is concern about tying down the second road. The City's position is to look at 19th Street as a permanent access. LUKE (addressing Robert Towne of the BLM and Mollie Chaudet, Project Manager, Upper Deschutes Resource Management Plan): I appreciate you taking part in this. There's been a lot of discussion regarding emergency access. There are a lot of people participating in the planning process around Redmond, and it would be nice to tie down a second road as soon as possible. LUKE: The question is how to go about doing this. I'm not sure why you'd improve 126 if it isn't to be permanent. If there were a way to move the process forward more quickly, that would help. Please comment on any obstacles and where you are now. TOWNE: The military now uses the secondary road. It is gravel, and supports emergency use. We're involved in the Upper Deschutes Region Management Plan, which involves 400,000 acres of public land. We're also involved in a south Redmond collaborative plan. The details say we are going to work through those two efforts to come to some solutions regarding secondary access, 19th Street, and Millican Road. All are growth related. This needs to be done in a collaborative, comprehensive cooperative way. It's a couple of year process, but the outcome will serve the communities and the public lands in the best way possible. We need to balance not only growth but also public lands needs. It's not that we are opposed, but the BLM would have to construct a new road when we don't know where it will be. The resort wanted to come in from the other direction. DEWOLF: We want to come to a good agreement regarding what we're putting together. A part of this MOU is to clear out a lot of roads in the area. Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 9 of 13 Pages Application for Approval of Final Master Plan TOWNE: We need to figure out how to best maximize the use of those acres for all users. DEWOLF: We're making this process go along with the collaborative process, and the BLM is waiting for us to catch up at this point. alms We don't have to participate until there is 50% build -out. How we finance some of these improvements all ties together. If we know the funding that will be required years from now, we need to include it. The development needs to move forward, but if another land use issue in the future is required to settle it, so be it. DEWOLF: I want to be fair to taxpayers and to the developers, too; perhaps when we have better data I'll be okay with another process. LUKE: There are lots of participants involved in this process; it should be a good one for everybody. TOWNE: We should be done with ours in two years. DEWOLF: Does anyone else have questions or comments? None were offered. CRAVEN: I have a couple of requests. One is that you close the record regarding the Final Master Plan so we can draft findings and deal with the Final Master Plan issues. We will share these with Ms. Craghead. The issues to be finalized are with the development agreement. If there is some mechanism we can use to calculate a pro rata share, there will be no requirement years from now to have another hearing. Our greatest concern is to get the Final Master Plan and development agreement as soon as possible. Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 10 of 13 Pages Application for Approval of Final Master Plan LUKE: We're looking at a two-year process, and I think the agreement could be opened in a couple of years to reexamine 19th Street, instead of waiting until eight years are up. CRAGHEAD: The Conceptual Master Plan requires this agreement be signed prior to approval of the Final Master Plan. CRAVEN: Are we close on all other issues besides this? Ms. Craghead and Mr. Blikstad indicated they are comfortable with the other issues. GEORGE READ: I'm concerned regarding closing the record regarding the conditions of approval. DEWOLF: What are we closing? READ: Are you trying to close the record except for specific items? CRAGHEAD: We've not done that before. I'm not sure we can. CRAVEN: We'd like to have some closure of other issues so we can prepare findings. DEWOLF: There's a lot of information that we've received today that I'd like to be able to read through. CRAGHEAD: I think we can get the development agreement done in a week. If we leave the record open for seven days, there needs to be seven days for rebuttal, since there is new information coming into the record. DEWOLF: Can we continue the hearing to a date certain? Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 11 of 13 Pages Application for Approval of Final Master Plan HIX: We're concerned that there is a very short growing season here, and we want to get some golf construction done. Can you consider that? DEWOLF: What's allowed? BLIKSTAD: I believe they have to get site plan approval first. If someone grades his or her land for agricultural use, it's an outright use. If it's for a golf course, it isn't. The official answer is they can't do it, but it would take a code enforcement action. BLIKSTAD: Lost Tracks applied for a site plan review at the same time, and this took a couple of weeks. IN The only issue I see that isn't relatively simple is the apportioning of the road cost. The fundamental issue you will have to get to, and one theory is, it is theirs to build. The other part is that we are requiring it. You can't have a subdivision without a road. Does the public owe them a road? CRAGHEAD: Part of the reason for the connecting road is an exchange for vacating rights of way through the property. DEWOLF: You can all haggle out the details. I'll continue this hearing until next Wednesday, May 22, at 10:00 a.m., at the regular Board meeting. If you aren't ready by then, we can continue it again to a couple of weeks later. Being no further discussion or action taken, Chair Tom De Wolf adjourned the meeting at 4:45 p.m. Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 12 of 13 Pages Application for Approval of Final Master Plan DATED this 14th Day of May 2002 for the Deschutes County Board of Commissioners. ATTEST: q5yaut,U-L(N� Recording Secretary Attachments Exhibit A - Preliminary statement [2 pages] Exhibit B - Community Development staff statement [2 pages] Exhibit C - Marketing brochure for the Resort at Pronghorn Exhibit D - Grant Documents between the U.S. Department of the Interior (Bureau of Land Management) and Hix, Ruebenstein Company (AKA High Desert Development Partners, LLC) [ 14 pages] Exhibit E - Copy of a certified letter to the Interior Board of Land Appeals and the Bureau of Land Management from Legal Counsel for ARLU DeCo (Alliance for Responsible Land Use in Deschutes County), indicating ARLU DeCo's withdrawal of their appeal [3 pages] Exhibit F - Copy of a letter to the Oregon Department of Aviation from W & H Pacific regarding High Desert Development Partners' request for the formal abandonment of Freight Wagon Field Airport (a grass strip currently located on the subject property) [4 pages] Exhibit G - Copy of a letter to the Oregon Military Department from W & H Pacific, indicating that activities at the Resort at Pronghorn will not interfere with local military operations [4 pages] Exhibit H - Replacement pages to the Wildlife Mitigation Plan, meant to reinsert information previously deleted in error [3 pages] Exhibit I - Copy of the Declaration of Covenants, Conditions and Restrictions of the Resort at Pronghorn [51 pages] Exhibit J - Copy of a Memorandum of Understanding between High Desert Development Company, LLC, the State of Oregon, and the U.S. Bureau of Land Management regarding Primary and Secondary Road Access Rights -of -Way [3 pages] Minutes of Public Hearing Tuesday, May 14, 2002 The Resort at Pronghorn (AKA Huntington Ranch) Page 13 of 13 Pages Application for Approval of Final Master Plan PRELIMINARY STATEMENT FOR PRONGHORN RANCH HEARING BEFORE THE BOARD I. INTRODUCTION A. This is a de novo/ hearing and: 1. is an initial evidentiary hearing on File Number M-01-01. B. In that application, the applicant requested approval of a Final Master Plan for a 640 -acre destination reort in EFU-AL and MUA-10 (DR) zones. II. BURDEN OF PROOF AND APPLICABLE CRITERIA A. The applicant has the burden of proving that he/she is entitled to the land use approval sought. B. The standards applicable to the application(s) before us are on page 1 the staff report dated as having been mailed on May 7, 2002. C. Testimony and evidence at this hearing must be directed toward the criteria set forth in the notice of this hearing, the staff report as well as toward any other criteria in the comprehensive land use plan of the County or land use regulations which any person believes apply to this decision. D. Failure on the part of any person to raise an issue with sufficient specificity to afford the Board of County Commissioners and parties to this proceeding an opportunity to respond to the issue precludes appeal to the Land Use Board of Appeals on that issue. Additionally, failure of the applicant to raise constitutional or other issues relating to the proposed conditions of approval with sufficient specificity to allow the Board to respond to the issue Page 1 of 2 -Chair's Openning Statement for Land Use Hearings precludes an action for damages in circuit court. Ill. EVIDENCE ACCEPTED The Board's decision on this application will be based upon the record before the Hearings Officer, the Hearings Officer's decision, the Staff Report and the testimony and evidence presented at this hearing. IV. ORDER OF PRESENTATION A. The hearing will be conducted in the following order. 1. The staff will give a report. 2. The applicant will then have an opportunity to offer testimony and evidence. 3. Proponents of the appeal will then be given a chance to testify and present evidence. When all other proponents have testified, opponents to the appeal will then be given a chance to testify and present evidence. 4. After both proponents and opponents have testified, the applicant(s) will be allowed to present rebuttal testimony but may not present new evidence. 5. At the Board's discretion, if the applicant(s) presented new evidence on rebuttal, opponents may be recognized for a rebuttal presentation. 6. At the conclusion of this hearing, the staff will be afforded an opportunity to make any closing comments. 7. The Board may limit the time period for presentations. B. Cross-examination of witnesses will not be allowed. A witness who wishes, Exhibit A, Page 1 of 2 FMP Hearing - Pronghorn Resort - 5/14/02 during that witness' testimony, however, to ask a question of a previous witness may direct the question to the Chair. If a person has already testified but wishes to ask a question of a subsequent witness, that person may also direct the question to the Chair after all other witnesses have testified but prior to the proponent's rebuttal. The Chair is free to decide whether or not to ask such questions of the witness. C. Continuances Prior to the conclusion of the initial evidentiary hearing, any participant may request a continuance of the hearing or to have the record left open. If requested by any party, the Board, at its discretion, may either continue the hearing or leave the record open for a specified period. a. If the Board grants a continuance, it shall continue the public hearing to a date certain at least seven days from the date of this hearing. b. If at the conclusion of the hearing the Board leaves the record open for additional written evidence or testimony, the record shall be left open for at least at least seven days for submittal of new written evidence or testimony and at least seven additional days for response to the evidence received while the record was held open. Written evidence or testimony submitted during the period the record is held open shall be limited to evidence or testimony that rebuts previously submitted evidence or testimony. 4. If the hearing is continued or the record left open, the applicant shall also be allowed at least seven days after the record is closed to all other Page 2 of 2 -Chair's Openning Statement for Land Use Hearings parties to submit final written arguments but no new evidence in support of the application. V. PRE -HEARING CONTACTS BIASI:%S� CONFLICTS OF INTEREST, A. Do any of the Commissioners have any ex -parte contacts, prior hearing observations; bias.eig,' or conflicts of interest to declare? If so, please state the nature and extent of those. B. Does any party wish to challenge any Commissioner based on ex -parte contacts, biases r conflicts of interest? (Hearing no challenges, I shall proceed.) (Ord. 2002-004 § 1, 2002; Ord. 90-007 § 1 1990) Exhibit A, Page 2 of 2 FMP Hearing - Pronghorn Resort - 5/14/02 1` Before the Board today is a public hearing on an application for Final Master Plan Approval for the destination resort formerly referred to as Huntington Ranch and now called The Resort at Pronghorn. In order to site a destination resort, there are two initial land use processes that must take place. The first is the Conceptual Master Plan, which the applicant has previously completed with the County through the approval of application no. CU -00-118. The CMP application came before the Board on appeal from the Hearings Officer's decision, specifically regarding the primary and secondary accesWondi 'ons of approval for the resort. (106 OS The second step in the process of siting a destination resort is the Final Master Plan. The applicant has submitted a FMP application with the County. Condition of approval no. 37 of the Board's decision on the CMP required that a Memorandum of Understanding be signed by the applicant, the Bureau of Land Management and the County to (and I quote) "confirm their intentions to work collaboratively in the resolution of issues related to the long-term needs of the public on the BLM lands and to collaboratively establish a process for the establishment of connectivity on BLM lands between the primary and secondary access roads." It also required that a Development Agreement or similar binding agreement between the County and the applicant be signed that includes a determination of the applicant's financial allocation for the construction of the connecting road between the primary and permanent secondary access roads. These two documents are required to be in place prior to the Board's approval of the FMP. These documents have not yet been signed by the parties, and final approval of both of them must take place before the: Board issues a decision on the FMP The Development Agreement may be considered a land use action and notice of the hearing included this agreement. Staff has reviewed the applicant's submitted materials with respect to both the FMP approval criteria and also the CMP conditions of approval. Our staff report addresses these individually which I will not read here. The outstanding issues of the FMP that staff has reviewed are as follows: Final Master Plan Critieria: Section 18.113.090, Requirements for final master plan, Subsection I, general layout of subdivisions, number of lots minimum and maximum lot sizes (Page 7 of staff report) The applicant will need to submit a general layout of lots for the Board to review. Conceptual Master Plan Conditions; Condition No. 5 listed on page 10 of our staff report: This condition requires the applicant to submit an approved wildlife mitigation plan and implement the plan through the resort's CC & R's. The applicant has received approval of a wildlife mitigation plan, but it appears to staff that the required CC & R's that implement the plan do not include all necessary mitigation measures. The proposed CC & R's need to be amended to include all mitigation measures. Condition No. 7 (page 11 staff report) This condition requires the applican to identify locations or routes of pedestrian, bicycle and equestrian trails systems. The applicant has not addressed whether any equestrian facilities will be provided. Exhibit B, Page 1 of 2 FMP Hearing - Pronghorn Resort - 5/14/02 Condition No. 20, (page 14 staff report) This condition requires assuring preservation of open space to meet the minimum 50% standard through the CC & R's. Staff has reviewed the proposed CC &R's and found no mention of the 50% open space standard. The applicant needs to address how the CC & R's will accomplish this condition. Condition No. 31 (pages 15-16 of staff report) This condition requires four items: identifying location of proposed permanent secondary access road connection point or alternate connection points, demonstrating that necessary right of way can be obtained, describing the timetable and the partie's relative responsibilities for construction costs, including the proportional shares of the 19th Street construction if that is the chosen secondary access, and including a supplemental traffic study analyzing the resort's traffic impacts with a secondary access road's connection point to a County, State or City road. Staff believes that the applicant has met these except for the timetable for construction and the parties relative responsibilities for construction costs, including the propotional shares of the 19th Street construction. Condtion No. 33 (page 17 staff report) This condition requires that the applicant provide written documentation that its primary, secondary and permanent secondary access road locations will not interfere with Oregon Military Department activities and that the BLM has agreed to the establishment of buffers on its land between the resort and OMD's operating areas that are acceptablt to the BLM, OMD and the applicant. Staff reviewed the Hearings Officer's findings on this condition and believes she intended for the applicant to provide written documentation from the OMD that this condition was met. Staff notes that the appeal of the Bureau of Land Management's Environmental Analysis and Grant of Access for the destination resort has been withdrawn. The appeal was withdrawn after the mailing of our staff report. We received a copy of the withdrawal letter on May 9th. Robert Towne and Janet Hutchison are here to answer any questions the Board might have on the BLM issues or processes. Questions for staff? S4 7 Exhibit B, Page 2 of 2 FMP Hearing - Pronghorn Resort - 5/14/02 "T A ..... . . . . . gi, I'A �T. Vt it T 7. N.0 rA. !I 11VI I 41 S�, 1"A T6 y f (O�fi�"I '12 0 I T\ T,a Irl Exhibit C, Marketing Piece /02 FMP Hearing - Pronghorn Resort - 5/14 WELCOME TO CENTRAL OREGON. urrounded by a skyline of mountaintops, flooded with sublime beauty and blessed with more than 300 days of sunshine each year, Central Oregon is a premier destination for golfers, skiers, anglers, kayakers, rafters and rock climbers alike. With 28 golf courses, Central Oregon is referred to by many as the Palm Springs of the North and soon, in the heart of this mountain mecca, you'll find a prestigious private golf community named for the antelope that keep watch over the high mountain desert, Pronghorn. With a limited number of homesites, two championship golf courses crafted by legendary designers Tom Fazio and Jack Nicklaus, a five-star boutique hotel and holistic spa, Pronghorn promises to elevate expectations in this already unique and fantastical place. _ Pacific Nor_thw $t ' " _ A ) VE l`` TU RIE For generations the Pacific Northwest has been a mysterious, mountainous land filled with high desert terrain, tall trees and even taller tales of giant lumberjacks and their colorful cohorts. Travelers that dare to pass through its boundaries return with astounding stories of thick forests, rushing rivers and diverse wildlife. Visitors from across the country and across the globe are continually drawn to partake in its natural wonders. To fish in its clear waters. To ski on its majestic mountains. To bike through its lush forests. And to golf on its renowned courses. Centrally located to all of this is the high desert of Central Oregon. Anchored by the city of Bend, Central Oregon is home to wide open spaces, four distinct seasons and a pleasant climate. Soon it will be home to Pronghorn, which will offer and emulate the greatness associated with the Pacific Northwest. Pronghorn is a 21/2 hour drive from Portland u Non-stop flights to Redmond -Bend from San Francisco, Seattle and Portland with Denver and Los Angeles coming soon 4 Central Oregon enjoys 300 days of sunshine per year 0 Home to the country's largest stand of Western Juniper trees 7, _ar+.+i... � >. a'� r � [� 1� i°; .fit•. :f ,�' �,r, f. , � ay v�i'r �l it 'yy'12 vi t ; ; bf `� d fF !.• ! # • �'. /�„ } ' mith�Rocta'te -ark, t' sj �° • of 7 1.' ,,i '� °�f `� r I F � +ia � � I • ' , sm ,^�+"� � 4"��iro-Ji ^ - � � � C y( !'�•`..� 126 �F.�j+„ � %.K._ " f �ei!� ' �. f.. �' /+ ��¢''t �"�1 f `''��•',Tyr *�*� :o1K,' i t nd r' 4R .stem 4 ' f •, ',i i ,: Redmond 6 1;.,•� " I 1; f i ��" Ir • f f � �r'�'' x'A. ±'i J t t � wt'! �t �t� :fit ' � ' Cl'6flu �''� F � #4rs!, � y 'Q•� ° i std �,� 5�, ". «�,�, t ' , « J {y �•:' . • • y4 t / et a +vtl ff`r A �§"c;�3 i` Jy2�s + � g �'. t •� zi• r j ti p( �� • yq, � Y M � r r V 2U r';'Y � � et ti . =r s rr�� t y �.1F} •f . m der' " t � V iia + • ' Y .:o .py r s x �p t 1 t !� lE� y� a 1fa, � J .� .,� � • �' � -�t yl�f" �i yL. '.: � �� of � � � ell � A1� � } t l� , � • y ' f f � i' . ':; ; 6 �`, t +r :o r � . e4 •s 4 d .1 �. x. �� " T '? Q t�, � s;,,� y. 1 3 / P'" �d J! e�' v 1o"T�Fv ..AI f •y t f• r F J f Bend is "•§q b , d.. t la+ k iPi�++hG• a's k L<� �4 93 �i+va a ' F ,1�h '1,I , n yl ��' • �� y, z�ts.'�� +1��1'y s� t fi1S is "•§q b , d.. t la+ k iPi�++hG• a's k L<� �4 93 �i+va a ' Pronghorn y_ As a prospective owner at Pronghorn, there are two terms with which you should familiarize yourself. They will be referred to time and again and will be helpful in describing your attraction to this property. The first is "BLM;' which stands for Bureau of Land Management. The 20,000 acres of pristine, Juniper -filled land that surrounds Pronghorn is protected BLM land. That means nothing will ever be built on it and your quiet retreat will remain quiet for generations. One might question why Pronghorn can be built on BLM land while nothing else can. The answer can be found in the second term you will become familiar with — Section 16. When Oregon was just a territory, Section 16 of every BLM tract of land was designated for schools and thus, building was permitted. Today, that little known fact allows Pronghorn to be close to everything, yet feel like it's a million miles away. 15 minutes from Redmond -Bend Regional Airport (two 7,000 ft. runways) 0 10 minutes from City of Bend Municipal Airport (5,000 ft. runway), which accepts private aircraft Surrounded by 20,000 acres of protected BLM land 0 13,000 acres of BLM land controlled by Pronghorn ¢ { 1?,��✓5 a� J s r ✓d� 1 'Y ,al r `k i � �. ^��•` a'l*J„�' iry '? r s � , , t vat �v r t r• 5,v � $� i t � asy i 1 J t ,t� a'u � S� t,C�= r'' � t� x r r �'•, y44 v'i 1 llra�i,y t,� a s t� � t r� r i t titr F ;• 't <(a-+ �'' 1n rJt,Lj+:. 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I-� -•r-• \�rf r i 1 :'',,. 17 y{y „�`Y" H � r -_ ..r `L - _ i>�s'. •tn;� t7`� ..y p.- '�''._-.3 hr �.� rl, J - rilp � � '" �Gl.i�n''aJl/ 61 ►. ►, �y�,trhy w `��._ � '�``.0 _ ss '--a '"+A� ��r�'�•�>•,-, +-�n.�-v-wtiae�'h rw•+na.•. t.- ;il V 1�•j'r�t. p: ci Jsl.; V-4 }'��Y _ 'tea 7r_- : 11 .Bend, �c�i;O` ret�g\(o+!(p -97,701 _ . JAL Located along a double curve on the Deschutes River, Bend is within close proximity to everything that makes Central Oregon so special. Known as "the sunny side of Oregon," the Cascade Mountains act as a protective buffer, giving Bend only 12 inches of precipitation per year. Enjoying both economic and population growth in the past few years, Bend is host to a unique blend of local and high-end shops, art galleries and sidewalk cafes. The panoramic view of Bend includes volcanic peaks, vistas of the high desert region and nine snowcapped Cascade peaks, including Mt. Bachelor, Three Sisters, Broken Top and Mt. Jefferson. Rated one of the Five Best Places to Retire and Fourth Best Place for Families to Recreate by Money Magazine 11 Ranked in Six Best Vacation Destinations and Hometowns by TIME Magazine 4 Deschutes County is recognized among the most desirable destinations in the Western U.S. 0 Newly restored $300 million Old Mill District featuring national retailers 4 No sales tax "T _ Centrat_ pregon 9 A Central Oregon has always been noted as an outdoor recreation destination. Blessed with abundant sunshine, sparkling air and outstanding views, Central Oregon allows you to wake up and do something different every day. And while a diversity of outdoor activities remain popular, one in particular — golf — has taken over as the clear leader. A variety of world-class courses challenge players at every skill level. And a number of top architects have worked their magic over the hills and through the forests of this spectacular region. Pronghorn's two unique and magnificent golf courses designed by Tom Fazio and Jack Nicklaus are sure to add to Central Oregon's well-established reputation. Golf Digest ranked Central Oregon as the 23rd top golf destination in the world 0 Host to Golf Digest's Pacific Amateur Golf Classic // More than 24 championship golf courses within an hour's radius of Bend 11 Bob Cupp, Weiskopf/Morrish and Robert Trent Jones, Jr. have all designed courses in Central Oregon // Pronghorn will feature Oregon's first Tom Fazio course and its first Jack Nicklaus Signature Course r.i,' rz,r' s .rz"h,'i, .. �F+a. Sfi.Y iF;: h b �yg,�.yia. „r � -!�� - )�` Cg' '.� ... - +Y'' of y+`,,FuY !. y... � _. .. i, .i 1 Ri i�i?/�y�ui .. meq... � � ., �� ,.y�y--. / N� _ F' Mt. Bachelor j Pronghorn is located in the high desert of Central Oregon. It enjoys relatively, little rainfall and even less snow. Conversely, less than one hour away, Mt. Bachelor Ski Resort receives so much snow (350 inches average snowfall), they don't even have artificial snow making equipment. With a ski season that extends through May and beyond, it's not unusual for visitors and locals alike to enjoy uninterrupted ski runs in the morning and 18 holes of golf in the afternoon. Such is the dichotomy of Central Oregon. 70 runs, 13 lifts and a 3,365 -foot vertical drop 11 Miles of groomed trails for cross-country skiing, snowmobiling and snowshoeing Ranked in the top 5 ski areas in the country by Ski Magazine 11 Long ski season — often open until July 4th 25% of alpine terrain is rated expert with four double -black -diamond runs 11 Seven super -express quads - Lifts rated #1 by Ski Magazine Training area for The US Ski Team 11 Enjoys an active calendar of events ^t::;' t erltb 9' a.h• 5\ te 7} 5 n � itJ k - i. �T .. a 1 � a"�S �R � r r 5� t• k t f r, t.,i7`�Y,, �rx i3 S S. s. y S5 ". �K 1 �t a1 i �: •4. t f. , s. � ')`. ,.•+ ase; ,7' = q� v :Ci'. 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Ri,,i •.fi .eiVyy_.Ta"t�}�', c,t,,i�',y�•w:t.srtr�d -. �t mt tr7'spp \ 'M f ^ 2 t A A � t?AS • s:i� • ,y`t 5� h ti x'•'S kk'�Pt' t.�p.roy �M k 4vt . qv T, j p<sp mi, I' ,.{+ i F . ! '"tom k'•". Ri,,i •.fi smith Rock State Park BZ__E'' D C,-F-LALL 1; GE Sheer rocks rise up to 400 feet above the Crooked River, which winds its way through the gorge known as -Smith Rock State Park. This park is considered one of the crown jewels of the Oregon state park system. Rock climbers come from all over the world to test their skills on its cliffs and crags, which they share with the hawks and eagles that live and nest here. This geologic wonderland is visible from Pronghorn and located a mere 20 minutes away. 641 -acre state park 11 International destination for rock climbers 4 Route difficulties range from 4th class to 5.14c 0 Scenic hiking routes, camping and picnic areas, horseback riding and fly fishing Privileged access to Smith Rock through reciprocity with The Canyons Ranch 0 Towering peaks shaped by volcanic lava millions of years ago // Various distinctive rocks including Monkey Face, Little 3 -Fingered jack and The Summit, the tallest peak in the park .n r; .: �, •:-r � -,�p..h �' ,t .,� �t x, n• � � -"'„� xa:,i�:..��^Fd�,a ;�:,fr w-,, ,t, . ,\ �:..,. � t .LAI ;t p `i ls� �>�k i• iy' 'Sh"�t YJ• r'�1,kyy��,'1% t, ', �y' �r �! � T i t M 1: !ltI 6n6ny 'y,�..tr M.S+hvr,wiyte,��ii Gkw ��1 —s' t� at_ II• -y ,1 _ ` • I�� ' �-��;,r� � ��•''Y £ j � I � � ^#?•I'. " .fir _, Ln�f . �:�� , • \ t 'r�,•4t��}tt t \ . � . {:; "t ' , � 4 '...� �; 4 �'��_ t Q: �� ' yi I�y�3� tl! ' �? ®� � 1' � Ery41 t T Ei: ,j, :. , w! e a C ! -f t_t a. s_ �_ •. �—"�' j r S_rU.t_a....i..S.,...x_..! -Vv5+:i . t �!.}�t—aL•^ ��a \� . ��f .�11P�: �y�.�w�l.ea,s.,.iap ' ,t �w Sty .yam Pill ' a Pronghorn, Located in the desert. Located in the mountains. Ideal for golfers. Ideal for skiers. Close to everything. A quiet retreat. Casual. Elegant. These statements may sound like opposites and, in fact, they are. But each is also accurate in describing what will soon be Central Oregon's most prominent private golf club community, Pronghorn. Making its home near Bend, it's no more than 40 minutes away from unbelievable skiing and even closer to world-class golfing, rock climbing, fishing, rafting, shopping, you name it. And because of the unique and wonderful micro -ecosystems of Central Oregon, each activity comes complete with a suitable climate. Pronghorn itself is located amid the country's largest stand of Western Juniper trees and surrounded by 20,000 acres of protected land and snow-capped peaks. Located in the high desert 11 Just minutes to restaurants, shopping and highly -respected healthcare 4 15 minutes to Downtown Bend 0 20 minutes to Smith Rock State Park 4 40 minutes to Mt. Bachelor 11 Views of Mt. Bachelor, Broken Top, Three Sisters, Mt. Jefferson, Mt. Hood and Smith Rock fJ ` Pronghor,,, n__, The climate is superb. The views are outstanding. The location is ideal. And the surrounding offerings are world-class. This is the perfect setting for Pronghorn. The place where you will come to reconnect with family and friends. The place that you will think of with reverence and fondness. The place that you will think of as home. In its desire to become one of the premier destination golf resorts and private communities in the US, Pronghorn will mark the first time either Tom Fazio or Jack Nicklaus has designed a course in Oregon. Additionally, it will mark the first time these two world-class golf course designers have created an exclusive pair of courses in a single project. Designing two separate and distinct courses for Pronghorn, each will execute his own unique vision. Limited number of homesites 0 Private Tom Fazio Golf Course Resort Jack Nicklaus Signature Golf Course 11 Pro Shop and dining facilities .. •�..a,: \ � j�: �� 4 ` �) gym+, —�4 . .::�y�� . �J ,'J . �''�.. �:, � .�`�'"q• I .„ �- Vis„%^mss. '�� ',� " IMF Ail i IL AA !i-� -•_ ' � •_. � 1 as M � �� ild �'' � _. � ` �. �' � w.�?W.�? � ,��;. .�/ tai .. � v. .t ,,�• . W oil �,;;, j4 . \ � � cid �.��St% •- � i Yy ter` -,.� ' -. � -. '3 f:'* � 'S. � 5 ^. -' �: } 2 a + ^•r � --� -• � `•r '� - t � K dna � 'T- < z: R'i ," '� t i tri t Y` K — 1 �•,. �.. t _ ..?a.✓ . �. — - � � .. � � �. •y� yam- 1 ~ The dub, a Pry ghorx�ry A rejuvenating spa. Your favorite vintage at dinner. A maitre d' that knows you by name. Impeccable service at every turn. These are the touchstones of a private club. And the benefits of membership at Pronghorn. Whether you're lounging by the pool or entertaining guests for an evening, you'll be greeted with favor and attended to in the finest fashion. No special occasion is needed, simply a hunger to be pampered and a thirst for finer things. Both will be delivered in abundance upon your command at Pronghorn. Topped off nicely with an oversized slice of courtesy. Five-star quality hotel and full-service spa 0 Private clubhouse for members and guests 4 Amenities will include fine dining and meeting accommodations, swimming pools, tennis courts, extensive trail systems and access to world-class equestrian facilities 11 Full club membership included with homesite purchase y} i E 4aa1, �•y r; �z 1� t v'�A > 4 � r Tom_. Fazio. is Arguably the world's preeminent course designer, Tom Fazio is known for creating golf that blends naturally with its environment. His bunkers highlight the landscape, emphasizing the surrounding natural beauty. No living designer has more credits on Golf Digest's list of America's 100 Greatest Golf Courses and Golfweek's collection of America's Best. He creates a vision for each course in his mind, and then brings that vision to life through embracing the natural features of the land. Fazio's vision for Pronghorn enhances the landscape with rolling terrain and dramatic setting. His design also ensures the replanting of 600 Juniper Trees. The end result will be an overwhelmingly special golf course. First Fazio Golf Course in Oregon 0 Master creator of the nation's most exclusive private clubs 4 7,200 -yard, par 72 championship golf course 0 Distinctive Fazio bunkers will highlight most holes 4 Native Junipers outline natural terrain with spectacular rock outcroppings 0 Caddie program will enhance the pure golf experience 4/ Club Members will enjoy full-service spa, fine dining, tennis, swimming and concierge service ,_.._,Jack .Nicklaus _. JJ f 1\_ J _� E...P_.._u t�.. The name Jack Nicklaus has become a clubhouse -hold word. It's spoken with reverence on golf courses around the world. He has repeatedly proven himself as a championship player and course designer. In the past 30 years, Jack Nicklaus has been involved in the design of over 200 golf courses in 34 states and 27 countries. He has crafted 11 in Europe, 17 in Japan and nine in China. And since the 1970s, at least 30 of his courses have been ranked in various national and international Top -100 lists, including GOLF Magazine, Golf Digest and Golfiveek. Taking his design cues from the natural terrain of the land, Nicklaus is planning a traditional desert -style course for Pronghorn, where its features will fit and flow naturally in their surroundings. First Jack Nicklaus Signature Golf Course in Oregon 0 First time Nicklaus & Fazio have created an exclusive pair of courses in a single project 7,460 -yard, par 72 championship resort golf course 0 Stunning golf course views of Cascade Mountains, Smith Rock and numerous buttes // Challenging from back tees, yet strategically designed for enjoyment at all levels 11 Nicklaus's first "desert -style" golf experience in the Northwest 7,7a^ _ ----- - .-^""�-_ 'f ..�;s::; . ; -'"�,- .. :., _ : '"�^.-;—'S..�. ,,., �,�„•r-• � .. `w-•r,•-�3-;ate''-! - . _ ..e>^ . .try,.. : a•..:.� 'r �'.:. , - _ , .*-•-__�®,��m.-. �� iL�P '."�"t '.,... u -.✓..:, 5T' % . ••,.. '�%+,y„y.` _, i» _::. -"�.'�- ,, ' : �::*+d,,..... . , ,�" JXr '' "�P Y , � vim'. _�•{ „�.�.,',�-�' �'�;: =.+ - ---'•-_'_.. '�.3rs.'t^i . ; ... ''x 77 77, � ti ti r "tet ' ..�`+` _tr^^.•-�. �l cD o 3: �i r N Hix Rubenstein Companies Pronghorn is being developed by High Desert Development Partners, LLC under the , management of Hix Rubenstein Companies, an innovative development company with a proven record of achievement. Hix Rubenstein has challenged the norms and demonstrated an uncanny aptitude for achieving dramatic results. As developers of the upscale and private CordeValle Golf Club & Resort in Santa Clara, California, they have created a truly unique offering and established themselves as premier golf community developers. Located in the dynamic Silicon Valley, CordeValle offers an 18 -hole championship golf course designed by Robert Trent Jones, Jr., a 300 -member private golf club catering to the CEOs of Silicon Valley and a 45 -room five-star hotel and spa. Hix Rubenstein will bring the expertise derived from CordeValle and other projects to ensure the world-class caliber of Pronghorn. CordeValle Golf Club & Resort • Silicon Valley, California 11 Rio Mesa/The Bluffs at Riverbend • Fresno, California Meadowlake Village • Oakdale, California 0 The Red Mountain Resort • Calaveras County, California // Las Islitas • Nayarita, Mexico "IM, tJ A�f ., . s'� a i rz .r t y ) �� +{ +? B ♦x� a A j 7 f � T✓d` k �e, ' r7 ., ,a {. • ��. a i t ' s a'S � �.�a . rtx g - +� $ a i,� yzf X 5+� •r f � '}r, ,a zt y»w"'.izx y, r `.is ngk4ur;��*4 €y x'"x`)"��•Y%U,'i- .f '� tr.• ..x � A« a.e' } < St �` 1 { a :3'y' .� o � � � � v.� \ t p"4'F {� i 4 ms< • h � sir iY ,pp r 5• �• .��` r� i� �s �� et L�xIT yy.�yZ�i7,,.'' r'�r." z W 7 t -.' r r 21 I')Ar • 3 e 3 rl, 1 `.,+�, Jj ' 4 # �. fl" •,r a 1 , r , + 1 i! r r A ! t Ail .foa� ��7� } 4.�;.'�1��,:�a• 7� 1 Y'i€,r'. },�7jte,� }.' jd "1 i� t,Fi`�'�/s .'t%' t�, F }��t�t•. :11 y'�} t§ 1 ,,. t'r►,4 �. i",E; i .'�" , S;Yfi r. { •'�j,tt�i•�'_y�+t �;.Y °� �.ft,t�#.,, �,v�§;$„�j'.'��• 3 Jr..� 9 ,� - '';t t r .l 7 S;�t �,�.1 ;Y � iYY. 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A �tiY r.' 6� •.G � ".' ;' a )k �, � 3�� '('w, r�t�jl J�'� � i <+� ��1`� '�•�e � K �k' w'[�< `� ,+yf4; -i �. .•� ��. � .12}�.: 1 �� ,, .�-�r� 1� :fit )s #�, ��'i-,�;��qp Y�g s� d��l ,lfr'•'4lay'r �t � • E .)l V� { ��,t9" q< A ,� ;?, 'fAYt `, (� .,1,1� l,,i .r��d !x« �(. � P j»1n�.• l•{� j F �"�''t. dot T g .T-;Ir�♦ +.?"i �r �.Ft �'.. � �( ��'�?`i •f 1 �; �. � '"".>�, e - xt' .q r s �'� • 'i r""` ,'}' t is - +•` +'`' } 't-�i3 'S ;k Pronghorn Pronghorn will be a premier golf course community that many will be drawn to, but only a select few will be able to enjoy the benefits of membership. Fewer still will be able to enjoy the benefits of a Founders Membership. By acquiring one of only 40 Founders Memberships, you'll be placed in a priority position to enjoy all the luxurious services and amenities Pronghorn has to offer. Some key Founders Membership benefits include: Priority status selection from Pronghorn's finest homesites 11 No dues for the first five years and 2 years of guest privileges 4 Participation in annual Founders' Golf Tournament 0 Full privileges to 18 -hole Tom Fazio championship golf course with its own private clubhouse and 18 -hole Jack Nicklaus Signature championship golf course 4 Access to full-service spa, swimming pool, tennis courts, fitness facility and other amenities 11 Special Founders' Lockers Pro ngh o n 4 Central Oregon's Premier Destination Resort & Private Golf Club 40 Founders Memberships Limited Number of Homesites, Villas and Memberships First Jack Nicklaus Signature Golf Course in Oregon First Tom Fazio Golf Course in Oregon Five -Star Quality Hotel and Full -Service Spa Views of Mt. Bachelor, Broken Top, Three Sisters, Mt. Jefferson, Mt. Hood and Smith Rock h 300+ Days of Sunshine Annually // World-class fly fishing and skiing just minutes away 771, 77 r > 45 h - r.� i l .. PROOr CEMAL OgEdON OPPIC ion ALTOS FFICE 15 ` 1+ t r`� t 1 rpefttont Ave ue, Suife 10 Re do fid, , �►� 156 L Alibi CSA 94024 65941.7514 VAX 541-,50+ Membeship 1YOb6 65�'��1�1 ww�►�pr�ngli��n�1�.b.��r�i � �� X50-9�1n��5� .Y." >,. Y S. a.''.--. dE ins -di.. .�.�.' __.. _„s.J...H✓3,_..,.w..�^.....E�.2t,... �5:.�,A.. ,. y.1a:.'�.>, e.,. .N9v":�i... �., h�i::�.a. 13e{u=a�4'�4vc � �i141�a�i IN REPLY REFER TO: OR 55746 OR 57273 2800 United States Department of the Interior BUREAU OF LAND MANAGEMENT Prineville Field Office P.O. Box 550 (3050 N.E. 3rd Street) Prineville, Oregon 97754 CERTIFIED MAIL NO. 7000 1670 0000 4647 0521 RETURN RECEIPT REQUESTED Tom Hix Hix, Ruebenstein Company 851 Fremont Avenue, Suite 103 Los Altos, CA 94024 MAR 2 5 2ooz DECISION Right -of -Way Grants (OR 55746 & OR 57273) Approved Right -of -Way Grant OR 52295 Issued Rental Determined Enclosed are copies of right-of-way (R/W) grants (serial number OR 55746 & OR 57273 ) which have been approved by the Bureau of Land Management. The rental for linear R/Ws are determined according to regulations found at 43 CFR 2803.1-2. The rental for OR 55746 (permanent primary road access) R/W is $323.98 and for OR 57273 (secondary temporary road access) R/W is $162.05. The total rental due is $486.03 for the period of April 1 through December 31, 2002. All subsequent rental payments will be due at the beginning of the calendar year. Future billings will reflect the latest adjusted schedule as published in the Federal Register. The issuance of this R/W grant constitutes a final decision by the Bureau of Land Management in this matter. This decision may be appealed to the Interior Board of Land Appeals, Office of the Secretary, in accordance with the regulations contained in 43 CFR, Part 4 and the enclosed Form 1842-1. If an appeal is taken, your notice of appeal must be filed in this office (at the above address) within 30 days from receipt of this decision. The appellant has the burden of showing that the decision appealed from is in error. Exhibit D, Page 1 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 J If you wish to file a petition (pursuant to regulation 43 CFR 4.21 (request) for a stay (suspension) of the effectiveness of this decision during the time that your appeal is being reviewed by the Board, the petition for a stay must accompany your notice of appeal. A petition for a stay is required to show sufficient justification based on the standards listed below. Copies of the notice of appeal and petition for a stay must also be submitted to each party named in this decision and to the Interior Board of Land Appeals and to the appropriate Office of the Solicitor (see 43 CFR 4.413) at the same time the original documents are filed with this office. If you request a stay, you have the burden of proof to demonstrate that a stay should be granted. Standards for Obtaining a Stay Except as otherwise provided by law or other pertinent regulation, a petition for a stay of a decision pending appeal shall show sufficient justification based on the following standards: (1) The relative harm to the parties if the stay is granted or denied, (2) The likelihood of the appellant's success on the merits, (3) The likelihood of immediate and irreparable harm if the stay is not granted, and (4) Whether the public interest favors granting the stay. Please note, however, that under the regulations in 43 CFR Group 2800, this decision is effective even if an appeal is filed. If you have any questions, please contact Janet Hutchison at (541) 416-6710. Sincerely, r COMPLETE THIS SECTION ON DELIVERY - • - • - Complete items 1, 2, and 3. Also complete A. rReceived by (Please Print Clearly) B. Date of Delivery item 4 if Restricted Delivery is desired. f1' Print your name and address on the reverse so that we can return the card to you. C. Signature Attach this card to the back of the mailpiece, X �' El Agent or on the front if space permits.i' �-'�Addressee Articl Addressed to: D. Is delivery a dress different from item 1? ❑ Yes ( r If YF��, e delivery address below: ❑ No i 10 }� �lI ?viL1� 3. Service Type ❑ Certified Mail ❑ Express Mail c. Registered IJ Return Receipt for Merchandise l ❑ Insured Mail ❑ C.O.D. 4. Restricted Delivery? (Extra Fee) ❑ Yes Article Number (Copy from service label) Exhibit D, Page 2 of 14 C f% ` C: L� (C �/ i c, FMP Hearing - Pronghorn Resort - 5/14/02 2 F....n RR11 6Jv iQQQ nnmasfin Rafi irn Roncinf imcoc_nn_u_noco r FORM 2800-14 Issuing Office (August 1985) Prineville District UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT RIGHT-OF-WAY GRANT SERIAL NUMBER OR 57273 1. A right-of-way is hereby granted pursuant to Title V of the Federal Land Policy and Management Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761). 2. Nature of Interest: a. By this instrument, the holder: Huntington Ranch LLC c/o Ball Janik LLP 15 SW Colorado Avenue, Suite K Bend, OR 97702 receives a right to operate, maintain, and terminate an access road, on public lands described as follows: Secondary Temporary Access T. 15 S., R. 13 E., Willamette Meridian, Oregon Section 23, E%SE1/a; Section 26, SE%NW1/XEl/, SWI/aTEl/., E%SE'/.SWl/, W%SEY/: Section 35, W%; T. 16 S., R. 13 E., Willamette Meridian, Oregon Section 3. Lot 1, S%SWl/a, NW:Y4SEl/., NWI/I4NWl/,SWI/,SEY4; Section 9, E%E%NEI/4; Section 10, NWI/4NW1/JgWl/., W%SWI/aNW/4, SWI/.; Section 15, N%NWI/,; b. The right-of-way granted herein is 20 feet wide, 31,680 feet long and contains 14.55 acres, more or less. C. This instrument shall terminate on 10 years from its effective date unless, prior thereto, it is relinquished, abandoned, terminated, or modified pursuant to the terms and conditions of this instrument or of any applicable Federal law or regulation. d. This instrument may be renewed. If renewed, the right-of-way shall be subject to the regulations existing at the time of Exhibit D, Page 3 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 I renewal and any other terms and conditions that the authorized officer deems necessary to protect the public interest. e. Notwithstanding the expiration of this instrument or any renewal thereof, early relinquishment, abandonment, or termination, the provisions of this instrument, to the extent applicable, shall continue in effect and shall be binding on the -holder, its successors, or assigns, until they have fully satisfied the obligations and/or liabilities accruing herein before or on account of the expiration, or prior termination, of the grant. 3. Rental: For and in consideration of the rights granted, the holder agrees to pay the Bureau of Land Management fair market value rental as determined by the authorized officer unless specifically exempted from such payment by regulation. Provided, however, that the rental may be adjusted by the authorized officer, whenever necessary, to reflect changes in the fair market rental value as determined by the application of sound business management principles, and so far as practicable and feasible, in accordance with comparable commercial practices. 4. Terms and Conditions: a. This grant is issued subject to the holder's compliance with all applicable regulations contained in Title 43 Code of Federal Regulations part 2800. b. Upon grant termination by the authorized officer; all improvements shall be removed from the public lands within 90 days, or otherwise disposed of as provided in paragraph (4)(d) or as directed by the authorized officer. C. The right-of-way granted herein may be reviewed at any time deemed necessary by the authorized officer. d. The map set forth in Exhibit A, attached hereto, are incorporated into and made a part of this grant instrument as fully and effectively as if they were set forth herein in their entirety. e. Failure of the holder to comply with applicable law or any provision of this right-of-way grant shall constitute grounds for suspension or termination thereof. f. The holder shall perform all operations in a good and workmanlike manner so as to ensure protection of the environment and the health and safety of the public. g. Any human remains, cultural and/or paleontological resource (historic or prehistoric or vertebrate fossil site or object) discovered by the Holder, or any person working on his behalf, on public or Federal land shall be immediately reported by telephone Exhibit D, Page 4 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 to the authorized officer. The Holder shall suspend all operations in the immediate area of such discovery unitl written authorization to proceed is issued by the authorized officer. An evaluation of the discovery will be made by the authorized officer to determine appropriate actions to prevent the loss of significant cultural or scientific values. The Holder will be responsible for the cost of evaluation and any decision as to proper mitigation measures will be made by the authorized officer after consulting with the Holder. In some cases it may be, necessary to suspend authorized operations in the area of the discovery for as much as 30 days. h. In the event the holder sells the property the holder is responsible for completing an assignment to transfer this authorization to the new landowner. i. If additional pullouts are necessary, for safety reasons, the holder must flag the areas and get approval from BLM prior to construction. j. If additional construction is necessary, for safety reasons, the holder shall conduct a prework meeting with BLM prior to any construction activity. k. The holder shall conduct all activities associated with the operation, maintenance, and termination of the right-of-way within the authorized limits of the right-of-way. 1. No construction or maintenance activities shall be performed during periods when the soil is too wet to adequately support construction equipment. If such equipment creates ruts in excess of 2 inches deep, the soil shall be deemed too wet to adequately support construction equipment. M. The holder shall acquire easements from the City of Redmond and the Oregon Military Department for the private land located in T. 15 S., R. 13 E., Sections 23 and 25. IN WITNESS WHEREOF, The undersigned agrees to the terms and conditions of this right-of-way grant. rLCS.luel 1 L (Title) (Signature of Authorized Officer) ` M&K t1 (Title) March 20, 2002 _— Z- 0"Z— (Date) (Effective Date of Grant) Exhibit D, Page 5 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 Huntington Rand Exhibit D, Page 6 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 FORM 2800-14 Issuing Office (August 1985) Prineville District UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF LAND MANAGEMENT RIGHT-OF-WAY GRANT SERIAL NUMBER OR 55746 1. A right-of-way is hereby granted pursuant to Title V of the Federal Land Policy and Management Act of October 21, 1976 (90 Stat. 2776; 43 U.S.C. 1761). 2. Nature of Interest: a. By this instrument, the holder: Huntington Ranch LLC c/o Ball Janik LLP 15 SW Colorado Avenue, Suite K Bend, OR 97702 receives a right to construct, operate, -maintain, and terminate an access road, on public lands described as follows: PERMANENT PRIMARY ACCESS T. 16 S., R. 13 E., Willamette Meridian, Oregon Section 21, E%; Section 27, W%WYSW1/; Section 28, EY2E%; Section 33, SEI./,SEWEl/4NEl/, Ey2SEl/4NEY/, E%E%SEl/,; Section 34, E%EY ri/; T. 17 S., R. 13 E., Willamette Meridian, Oregon Section 3, W%W%NWl/, WI/2NWl/,NWI/.SW3/4; Section 4, NE'/NE'1XEl/,; b. The right-of-way granted herein is 60 feet wide, 21,120 feet long and contains 29.09 acres, more or less. C. This instrument shall terminate on 30 years from its effective date unless, prior thereto, it is relinquished, abandoned, . terminated, or modified pursuant to the terms and conditions of this instrument or'of any applicable Federal law or regulation. Page 1 of 7 Exhibit D, Page 7 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 j d. This instrument may be renewed. If renewed, the right-of-way shall be subject to the regulations existing at the time of. renewal and any other terms and conditions that the authorized officer deems. necessary to protect the public interest. e. Notwithstanding the expiration of this instrument or, any renewal, thereof,.early relinquishment, abandonment, or termination,. the.: provisions of this.instrument, to the extent applicable, shall continue in effect and shall be binding on the holder, its successors, or assigns, until they have fully satisfied the obligations and/or liabilities accruing herein before or on account of the expiration, orprior termination; of the grant, 3. Rental: For and in consideration of the rights granted, the holderagrees to pay the Bureau of Land Management fair market value rental as determined by the authorized officer unless specifically exempted from such payment by regulation. Provided, however, that the rental may be adjusted by the authorized officer, whenever necessary, to reflect changes in the.fair market rental value as determined by the application of sound business management principles,.and so far.as.practicable.and feasible, in accordance with comparable commercial practices. 4. Terms and Conditions: a. This grant is issued subject to the holder's compliance with all applicable regulations contained in Title 43 Code of Federal Regulations part 2800. b. Upon grant termination by the authorized officer, all improvements shall be removed from the within.901. days. or otherwise disposed of as provided` in paragraph . (4 ), (CO., or as directed by the authorized officer. C. The right-of-way granted herein may be reviewed at any time deemed necessary by the authorized officer. d. The map set forth in Exhibit A, attached hereto, is incorporated into and made a part of this grant instrument as.fully and.. effectively as if they were set forth herein in their entirety. e. Failure.of the holder to comply with applicable:law or any provision of this right -of -way grant shall constitute grounds for suspension or termination thereof. f. The holder shall perform all operations in a good and workmanlike manner so as to ensure protection of the environment and the health and safety of the public. Page 2 of 7 Exhibit D, Page 8 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 I g. Any human remains, cultural and/or paleontological resource (historic or prehistoric or vertebrate fossil site or object) discovered by the Holder, or any person working on his behalf, on public or Federal land shall be immediately reported by telephone to the authorized officer. The Holder shall suspend all operations in the immediate area of such discovery until written,. authorization to proceed is issued by the authorized officer.. An evaluation of the discovery will be made by the authorized officer to determine appropriate actions to prevent the loss of significant cultural or scientific values. The Holder will be responsible for the cost of evaluation and any decision as to proper mitigation measures will be made by the authorized officer after consulting with the Holder. In some cases it.may be necessary to suspend authorized:operations'in the area of the discovery for as much -as 30 days. h. The holder shall complete all cultural resource work, including a. final report approved by BLM,.within 120 days of the Decision. Record. i. In the event the holder sells the property the holder is responsible for completing.an assignment to transfer this authorization to the new landowner. j. The holder shall obtain a.Consent Permit from the Bureau of Reclamation to build the bridge over the North'Unit Irrigation Main Canal.. k. The holder shall obtain a Consent to Common Use from PG&E Gas Transmission Northwest prior to building the access road over the pipeline. Construction 1. The holder shall obtain the, services of a licensed professional engineer to locate, survey, design, and construct the proposed road as directed by the authorized officer. The road design shall be based on the (1) width, (2) maximum grade, and (3). design speed of the road. M. The holder shall submit a plan of development that describes in detail the construction, operation, maintenance, and termination of the right-of-way.and its associated improvements and/or. facilities. The plan shall include drawings -in sufficient. detail'. .to enable a complete evaluation of all proposed structures, facilities, and landscaping to ensure compliance with the requirements of the grant and to ensure visual compatibility with the site. These drawings shall be the construction documents and must show dimensions, materials, finishes, etc. to demonstrate compliance with all requirements. The plans will be reviewed and, if appropriate, modified and approved by the authorized Page 3 of 7 Exhibit D, Page 9 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 officer. An approved plan of development shall be made a part of the right-of-way grant. n. The holder shall flag the roadway and have a meeting at the site. with authorized officers from BLM, BOR, OMD,. and PG&E for their approval. o. The holder shall conduct a prework meeting with all affected. parties prior to any construction activity. P. The holder shall conduct all activities associated with the construction, operation, and termination of the right-of-way within the authorized limits of the right-of-way. q. No.construction or routine maintenance activities shall be performed during periods when the soil is too wet to adequately support construction equipment. If such.equipment creates ruts in excess of 2 inches deep, the soil shall be deemed too wet to adequately support construction equipment. r. The holder will construct the road to meet Deschutes County Rural Collector Road Standards, which includes a paved 32 foot width to accommodate bike lanes. S. The -holder will construct the bridge to.meet Deschutes County Standards, which includes having a.32 foot running surface to accommodate bike lanes. t. During construction the holder will attempt to imitate natural forms found in the landscape. u.The holder will design the road in a manner that the buried water pipeline in the Crenshaw Allotment, remains functional. V. During construction of the access road, the. holder shall.adhere to the basic fire safety rules as specified in the Central Oregon Fire Management Safety regulations. W. During the construction of the road the holder shall camouflage user created roads in existence within 20 feet adjacent to the fence outside the ROW with large rock and rehabilitated vegetation'. x. The holder shall wash all construction equipment before and after use Y_ The holder shall use weed -free surface .and fill material if additional is needed. Z. The holder shall cease all construction activity within 1/ mile of a northern goshawk nest and apply a noise/construction.buffer Page.4 of 7 Exhibit D, Page 10 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 V if one is discovered before or during construction. aa. The holder shall avoid destroying or damaging any western burrowing owl burrows. If one is discovered before or during construction, a 200 meter buffer shall be placed around the burrow to avoid damaging both primary and secondary entrances and any potential tunnels. bb. Construction holes left open over night shall be covered. Covers shall be secured in place and shall be strong enough to prevent livestock or wildlife from falling through and into a hole. cc. The holder shall maintain construction sites in a sanitary condition at all times: waste materials. at those sites would be disposed of promptly at an appropriate waste disposal site. . "Waste" means all discarded material. including, but not limited to, human waste, trash, garbage, refuse, oil drums, petroleum products, ashes.and equipment. dd. The holder shall implement a litter -policing program, approved of in writing by BLM. ee. The holder shall comply with all applicable Federal laws and regulations existing or hereafter enacted or promulgated. The holder shall comply with the Toxic Substances Control Act of 1976, as amended (15 U.S.C. 2601, et secr.) with regard to any, toxic substances,that are used, generated by or stored on the ROW. ff. The holder shall be required to report any release of toxic ' substances (leaks, spills, etc) in excess of reportable quantity established by 40 CFR, part 117 as required by the Comprehensive Environmental Response, Compensation and Liability Act of 1980, Section 102b. A copy of any report required or requested by any Federal agency or State. Government as a result of a reportable ..release or spill of any toxic substances would be furnished to the authorized officer concurrent with the filing.of .the reports to the involved Federal agency or State government: Vegetation gg. The holder shall mark all trees to be removed with flagging and obtain BLM's approval prior to cutting operations. hh. The holder shall cutthe trees. down to a stump height of no more than 8 inches, with all.branches.removed from the remaining stump.. All snags .or trees with potential nest cavities would.be left if possible. Following reseeding, all cut.trees would be scattered.on disturbed BLM managed land within the ROW or. other . areas approved by BLM. Page 5 of 7 Exhibit D, Page 11 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 ii. The holder shall retain all old-growth juniper snags and juniper with cavities. jj. The holder shall seed all disturbed areas, using an agreed upon method suitable for the location. Seeding shall be repeated if a satisfactory stand is not obtained as determined by the authorizing officer upon evaluation after the second growing season. - kk. The holder shall reseed disturbed areas as soon as .possibly between the established time frames of October 1st and February.:. 1st. 11. The holder shall use the following seed mixture or another mixture approved by BLM; 400-. western wheatgrass, 300-. bluebunch wheatgrass, and 30o bottlebrush squirreltail All seed mixture would be 100s pure. live seed and certified weed - free. The holder will provide BLM with a seed testing report prior to planting any seed. mm. The holder.shall suppress noxious weeds according to the BLM standards for noxious weed suppression for.a period of three years following construction. An applicator, licensed.with the State of Oregon, shall use herbicides at an application rate approved by BLM. Fencing and Signs nn. The holder shall install and maintain a fence on both sides of the access road to BLM specifications. No stays would be placed in the fence. White flagging is required on the top of every other fence post to assist wildlife for.at least a six month. period. oo.. The holder shall install and maintain cattle guards and gates on both sides of the road at openings. Openings will occur on each., side of the road to accommodate county recognized public ways and Sheridan Road. Gated openings would occur at the North Unit Main Canal, PG&E Pipeline, and any power lines maintenance roads. The gates will be either 12 or 14 foot metal gates with a H -brace on each side next to the cattle guard. pp. The holder shall install and maintain a.4'foot pedestriari'gate`on both sides of the paved route adjacent to the locked'gates at the` North Unit Main Canal and the PG&E Pipeline. Page 6 of 7 Exhibit D, Page 12 of 14 FMP Hearing - Pronghorn Resort - 5/14/02 qq. The holder shall install and maintain signs, on the fencing. directing the public to the next gated entrance or exit to cross the roadway and which state, "Patrols of the Area Occur", "No Dumping", and "Open Range Watch for Livestock on the Road" or as otherwise approved by BLM. rr. The holder shall install informational bulletin boards; at the entrance of the paved access road, at the resort exit onto the paved access road, and at.the OHV/pedestrian gates for North Unit Main Canal maintenance road, as approved by BLM. The holder shall also install informational bulletin boards at. the entrance of this road at the pedestrian gates for North Unit Main Canal and PGE Pipeline, also approved by BLM. ss. The holder shall install and maintain speed signs which state that the speed limit will be established and enforced. IN WITNESS WHEREOF, The undersigned agrees to the terms and conditions of. this .right -of -way gra prt . S Holder (Title) 3/Z�/oma (Date) (Signature of Authorized Officer) Eta) (Title) 3- 2-s--a (Effective Date of Grant) F1 m ID T _ 1 6 S n u N T 1 7 S Huntington Rana R12E R13E 1H 36 City of Bend Treatment Pla U Huntington 16 Ranch Legend Scale = 1:63,360 Miles Per Inch =1.0 WitiesL' C.�� ..7-' 0.5 0 0.5 1 Miles -- P,GaC� Access Routes 800 0 800 1600 Meters Powerlines Bureau of Land Management9 + Iw (—� No walla Exhibit D, Page 14 of 14 .�Awth "" "" FMP Hearing - Pronghorn Resort - 5/14/02 Department of Interior Bureau of Land Management 110D' District _ rin 0 3050NEThridStreet , o� Prineville, OR 97754 `s (541) 4166700 Pri-131vDl.ulrl. Orepm No walla Exhibit D, Page 14 of 14 .�Awth "" "" FMP Hearing - Pronghorn Resort - 5/14/02 05/09/2002 12:03 541-416-6782 FRONT DESK PAGE 02 CERTIFIED MAIL RETURN RECEIPT REQUESTED Interior Board of Land Appeals Office of Hearings and Appeals U.S. Department of the Interior 801 North Quincy St., Suite 300 Arlington, VA 22203 Bureau of Land Management Prineville Field Office 3050 N -E. 3`d Street (PO Box 550) Prineville, OR 97754 541-416-6700 RECEIVED MAY 0 9 2002 OLM PRINEVILI„ E DISTRICT May 7, 2002 RE: Alliance for Resvonsible and se in esch-A County �. Bureau of Land a grunt, EA No. OR -056-02006 Please find enclosed Appellant's Notice of Withdrawal of Appeal. If you have any questions, I can be reached at 503-768-6736. Thank you. cc: Jeff Boyer, ARLU-DeCo U.S. Dept. of the Interior Office of the Solicitor, Pacific Northwest Region 500 N.E, Multnomah St., Suite 607 Portland, OR 97232 Nancy Craven Ball, 7anik LLP 101 SW Main Street, Suite 1100 Portland, OR 97204-3219 Sincerely, Stephanie M. Parent Staff Attorney Exhibit E, Page 1 of 3 FMP Hearing - Pronghorn Resort - 5/14/02 Stephanie M. Parent Pacific Environmental Advocacy Center 10015 SW Terwilliger Blvd. Portland, OR 97219 Attorney for Appellant INTERIOR BOARD OF LAND APPEALS OFFICE OF HEARINGS AND APPEALS Alliance for Responsible Land Use in Deschutes County, Appellant V. Bureau of Land Management Respondent, and Huntington Ranch LLC Respondent -Intervenor. IBLA # 2002-248 NOTICE OF WITHDRAWAL OF APPEAL On April 3, 2002, Alliance for Responsible Land Use in Deschutes County (ARLU DeCo) timely filed its notice of appeal of the Bureau of Land Management (BLM) decision to grant Huntington Ranch LLC rights of way across BLM managed lands in order to construct a destination resort and as described in the BLM°s Environmental Assessment (EA) #OR -056-02- 006. On April 5, 2002, Huntington Ranch LLC moved to intervene on the side of Respondent, BLM. Pursuant to an agreement reached between Appellant and Intervenor, ARLU DeCo hereby withdraws this appeal. Respectfully submitted this 97 day of May, 2002, STEPITANIE M. PARENT Staff Attorney ARLU 1aeCo W1THDFAWAL OF APPEAL OF EA OR -056-02-006 Page 1 Exhibit E, Page 2 of 3 FMP Hearing - Pronghorn Resort - 5/14/02 Pacific Envirotimejatal Advocacy Center 10015 SW Terwilliger Blvd. Portland, OR 97219 (503) 768-6736 Attorney for Appellant I certify that on May 7, 2002,1 served true copies of the foregoing document in the following manner: by certified mail with return receipt requested to: Mariel J. Combs Office of the Regional Solicitor Department of the Interior 500 NE Multnomah St, Suite 607 Portland, OR 97232 Attorney for Respondent by certified mail with return receipt requested to: Bureau of Land Management Prineville Field Office 3050 N -E_ 3`d Street (PO Box 550) Prineville, OR 97754 541-416-6700 by certified mail with, :return receipt requested to' Nancy Craven Ball 7anik LLP 101 SW Main Street, Suite 1100 Portland, OR 97204-3219 Attorney for Respondent -Intervenor Dated this 7 day of May, 2002, �- .; , T_ V 's ARLU De04 wYTHDRAWAL OF APPEAL OF EA OR,056-02-006 Page 2 Exhibit E, Page 3 of 3 FMP Hearing - Pronghorn Resort - 5/14/02 APR -29-2002 06=47 W&H PACIFIC w AM-.,47L.7rG N April 25, 2002 Mr. Gerald E. Eames Manager, Air Operations Oregon Department of Aviation 3040-25" Street SE Salem. OR 97302-1125 RE: High Desert Development Partners, LLC Freight Wagon Field Airport Airport Closure WHP File No. 817910.002 Dear Mr. Eames: 503 388 4229 P.02/U5 920 SW Emkay, Suite t100 Bend, Oregon 91701-1041 541.388.42SS fax 541.388.4229 Thank you very much for your assistance on the Freight Wagon Field Airport in Deschutes County. As discussed, development of the property is proposed and abandonment of the airport is necessary. An executed copy of FAA form 7480-1 is enclosed for your review and use. The original FAA form has been forwarded to the Seattle Airports District Office. The existing Freight Wagon Field Airport is located in Section 16, Township 16 South, Range 13 East, approximately four miles South of Roberts Feld in the city of Redmond. High Desert Development Partners, LLC purchased all of Section 16 last year and is proceeding with development planning. Deschutes County land use approvals and resort planning have progressed to the point that abandonment of the airfield is appropriate and desirable. Please review the enclosed form and notify me if you have any questions or comments- As noted, we respectfully request your formal abandonment of the Freight Wagon Feld Airport. The airport has not been utilized for months and should be considered officially closed as of the date of this letter_ Based upon your letter of January 2, 2002, our correspondence and the executed Notice of Landing Area Proposal constitute closure of the airport by the Oregon Department of Aviation. Sincerely, W&H PACIFIC, INC. /ew 101aa, Thomas A. Walker, P.E. Vice President whpacific.com planners surveyors engineers landscape architects Exhibit F, Page 1 of 4 FMP Hearing - Pronghorn Resort - 5/14/02 APR -29-2002 06:4? W&H PACIFIC 503 388 4229 P.03i05 April 25, 2002 Page 2 Cc: Tom Hix Scott Denney US Department of Transportation Federal Aviation Administration Northwest Mountain Region Office Airports Division, ANM-600 1661 Lind Ave. SW, Suite 540 Menton, WA 98055-4056 p4oa02ww1trl.doc Exhibit F, Page 2 of 4 FMP Hearing - Pronghorn Resort - 5/14/02 RPR -29-2002 06:4? W&H PACIFIC 503 388 4229 P.04i05 us 0CPW^n� a iooaa NOTICE OF LANDING AREA PROPOSAL xoen Fadard aalolmnflan .Name of Proponent. Individual or Organization Address of Proponent, Individual or Organization High Desert Development Partners, LLC (No.,Street,City,Stata,Z/PCode) 852 Fremont Ave. Suite #103 ® Check if the property or`"' ase and and dr d rens are reverse. �t than above, Los Altos, CA 94024 and list property ❑ Establishment or Activation @ Deactivation or Abandonment OF 0 Airport ©l)Itralight Flighipark ❑ Yertiport ❑ Alteration ❑ Change of Status ❑ Heliport ❑ seaplane Base ❑ other (Specify) A. Location of Landing Area Distance and Direction From 1 Associated City/State 2, County/State (Physical Location of Airport) Asoiated City or Torn Redmond, OR Deschutes County Oregon 5. Latitude 6 Longitude 7. Elevation t*IM 4. Name of Landing Area d ' *:3 19 0 + 4 Freight Wagon Field Airp rt44II 32 I2I IO 37 — South B. Purpose t If Change of Status 11 or Alteration, Describe Change Construction Dates ype use E5tablistanettt or To Begin/Began Est. Completion ® Privatte Abandonment W( etrsaeftrte ❑ Private Use of Public Land/Watem on reverse) Existing (it any) proposed Rwy q1 A4 #2 Rwy 03 Rwy Rwy I NW 650 90 Dir of Provaili g ndpert in 04Woo 5Yawn M btror'E7 UAWM U rlrrlN Qrar=SbAL MON (N OILbtaaloj sYada ar lima'n I Nome jet fldio�e* TuLopop ria P -P MOS �j a Ate IFR pmwc um For The AirPOn AntiCIPOW ❑ No ❑ Yes tAfithin Yeses Type Navaid: K APPROB2111M for D Has Been Made r_1 Not Requited ©County ❑ Wrll Be Mede D Suft D MutrIcApal Au#x tity I. CE�FICATION: t hereby carW that all of the above statemania made by tna sre t t hast of my knowledge Name, tide (and address it diNarent than above) of person filing Signaht m Ink) - this nalioe--type or POW Th oma s Hix, President Dale- of Telephone No. (POM& with area Code) High Desert Development Partners, LLC +-�-22--02— 650-941-7514 Exhibit F, Page 3 of 4 FMP Hearing - Pronghorn Resort - 5/14/02 Ref. A6 Above P. Landing Area Data Miction From Lading Area Oistsnoe From AreLarding a 1. S( �-15 .9,g Magnetic gearing of Runway(s) or Sealane(s) C. Other Landing Areas Length at Runways) or Sealane(s) In feet o,c �LL Width of Runway(&) or Sealane(s) tr in Feet Type of Runway Surface (Concrete, Asphalt, Turf. Etc.) 2 Di kern si Aons o Finoiland Dimensions of To chdown and Lft"M Area (TLOF) in Feet c R Megnedc Dimcdon of Ing OWEgam noulas E.Obstructkans eck OnFinin AM mm Lending Am z Type a( wiam ll, tornTate roottoR en ) (Tu Type r� 3 � oeectiption of L+sf>bng (it arty) NOne F Operp*" Dale AU Based AkTndt 1. Estimated or Aal N Nmlk 1\cva F (N pL &WINla 5 Yaws seebiana bm by latter Tf7 No ►M/tr5+p'.Y 5YOk•arnirx cttmr G. other Considerations Identification Direction From LwWhV Ala UMMU From Lauding Area 2 Average Numbee y > r' trwva AnWOU (M MLa+mnra 5 YOM I by low'n Existing (it any) proposed Rwy q1 A4 #2 Rwy 03 Rwy Rwy I NW 650 90 Dir of Provaili g ndpert in 04Woo 5Yawn M btror'E7 UAWM U rlrrlN Qrar=SbAL MON (N OILbtaaloj sYada ar lima'n I Nome jet fldio�e* TuLopop ria P -P MOS �j a Ate IFR pmwc um For The AirPOn AntiCIPOW ❑ No ❑ Yes tAfithin Yeses Type Navaid: K APPROB2111M for D Has Been Made r_1 Not Requited ©County ❑ Wrll Be Mede D Suft D MutrIcApal Au#x tity I. CE�FICATION: t hereby carW that all of the above statemania made by tna sre t t hast of my knowledge Name, tide (and address it diNarent than above) of person filing Signaht m Ink) - this nalioe--type or POW Th oma s Hix, President Dale- of Telephone No. (POM& with area Code) High Desert Development Partners, LLC +-�-22--02— 650-941-7514 Exhibit F, Page 3 of 4 FMP Hearing - Pronghorn Resort - 5/14/02 APR -29-2002 —7 06:48 W&H PACIFIC regon Sohn A. fowk.ahea. M.U., Ciarrmcr. January 2, 2002 Thomas A. Walker, P.E. W&H Pacific 920 SW Emkay, Suite C 100 Bend, OR 97702-1041 Airport Closure 503 388 4229 P.05i05 DffFARTMEA`T OF 711, 3040- - 25th Streeet SE Salem, OP, 017302-1125 Phone: (503) 378-4880 (800) 874-0102 FAX: (503) 373-1688 This is in response to your letter about the possible closure of a personal use airport south of Redmond. I assume this Is the Freight Wagon Field Airport, located about 5 miles south of Redmond. To close this airport out with the Federal Aviation /administration, you should complete the appropriate sections of the enclosed FAA Form 7480-1 and send it to the Regional Airports Division Office at the address indicated. Advanced notice is not required and may be done by letter. All our office needs is a letter stating the date of closure to close our records on the airport. if we may be of any assistance, please contact me at 378-4880 or 1-800-874-0102. Sincerely, Gerald E. Eames Manager, Air Operations )TAL P.05 Exhibit F, Page 4 of 4 FMP Hearing - Pronghorn Resort - 5/14/02 MAY-13-20U� 14. GG rRui a� A Al.�wMrrtfTht rr CrorlO Colonel Larry Studer Major Bill McCaffrey Gerald E. Elliott. 1776 Militia Way P.O. Box 14350 Salem, Oregon 97309-5047 May 2, 2002 Post -It° Fax Note ROeN710 H/ENZ Phon # Re: The Resort at Pron orn Dear Colonel Studer: 920 SW Emkay, Suite C100 Bend, Oregon 91102-1041 541.388.4255 fax 541.388.4229 7671 °i rh /9 Y IPa9e9� From t O L S r v ".1b3 5 eIq 2� J06 rJJ Thank you for the opportunity to meet with OMD representatives on March 20, 2002 to discuss the Resort at Pronghorn. As you are aware, Deschutes County approved High Desert Development Company's ("HDDC") request for a conditional use permit for a conceptual master plan ("CMP") for the Resort at Pronghorn. HDDC has now submitted an application to Deschutes County for approval of the final master plan ("FMP") for the destination resort. As part of the FMP, HDDC must document compliance with the adjacent OMD operations. Thus, the purpose of this letter is to confirm that the access roads serving the resort will not interfere with OMD activities and that HDDC and the OMD have reached an agreement regarding the buffers between OMD operations and the destination resort boundaries. Access Route Alignment With respect to the access road locations, the purpose of this letter is to reaffirm that the primary and temporary secondary access routes approved by BLM in the February, 2002 Decision Record will minimize conflicts with OMD activities. In prior correspondence, specifically the December 14, 2000 letter from W&H Pacific to OMD and the December 18, 2000 email memorandum from OMD to w&H Pacific, OMD confirmed that the proposed access routes will reduce potential civilian/military interface. The location of the permanent secondary access road will be identified by BLM during future review, during which HDDC and BLM will consult OMD to identify the appropriate route. During the March 20 meeting, the OMD reiterated its general support for the primary and temporary secondary access alignments chosen by BLM in its Decision Record and EA. The OMD also noted that, to accommodate the chosen primary access alignment, the OMD will relocate the existing military Bailey Bridge at Morrill Road. Major McCaffrey identified the relocation site as proximal to the Bridge Relocation Site No. 3, depicted on the attached exhibit. The costs associated with the relocation, as well as the design and installation of abutments and other improvements requires for the relocation shall be the responsibility of HDDC. whpacifrc.com planners surveyors engineers landscape architects Exhibit G, Page 1 of 4 FMP Hearing - Pronghorn Resort - 5/14/02 WIRY -1 Colonel Larry Studer May 2, 2002 Page 205/02/02 with respect to the primary access route, OMD has identified the Morrill Road/6585-C Road intersection as an area of concern. However, during our March 20 meeting we concurred that the OMD's concerns can be addressed through cooperative field design by BLM, OMD, and HDDC. Specifically, the OMD will maintain the crossing of the PGE pipeline on Morrill Road at the existing reinforced cap location on this alignment, and the primary resort access road will subsequently be constructed south and west of this intersection. The general alignment of the primary resort access road has been determined by BLM in the EA and Decision Record. BLM, HDDC, and reduce �confli ll at this ogintersection.herdring road construc[ion to ensure that the road is aligned to 2. Buffers With respect to the buffers between OMD activities and the resort, HDDC and OMD confirmed that the existing buffers will be sufficient to maintain compatibility between the Resort and the OMD activities. The land use permit (OR 56312) issued by BLM to the Oregon Military Department on February 2, 2001 imposes and the MD agreed at the March 2U meetne-quarter mile buer zone between Ning operations and adjacent private properties. HDDC that the existing one-quarter mile buffer is sufficient to ensure that OMD activities are compatible with the destination resort. During the March 20 meeting, HDDC and the OMD addressed the two main compatibility issues: noise and dust. Firing of blank ammunition by the OMD is a common practice during training exercises. Tanks and other military vehicles typically maneuver around the desert terrain during such operations. Both noise and dust are generated during these maneuvers, and the likelihood of impacts on the resort property is directly related to the direction of the prevailing winds and the frequency of military operations. The predominant areas for military activities are east and north of the e and dust grevailing enerated by hes are OMD mlcally aneuver will m the south, southwest, and west. Thus, the no g typically be carried away from rather than in the direction of the resort property. The infrequency of military maneuvers combined with the direction of the prevailing winds led OMD and HDDC to conclude that the noise and dust impacts will be minimal. Please confirm that this letter accurately describes the agreement between HDDC and the OMD by signing the confirmation line below and returning a copy of the signed letter to HDDC. Thank you for working with HDDC to ensure that the proposed destination resort and the OMD activities on the adjacent public lands can coexist without conflict. ::0DMAv'CL%oa\FoRTLAND\282?'A Exhibit G, Page 2 of 4 FMP Hearing - Pronghorn Resort - 5/14/02 I ,I MAY-13-2bb� 14�GJ Colonel Larry Studer May 2, 2002 Page 305/02/02 Please contact me with any further questions regarding this matter. We look forward to receiving your confirmation of this agreement. A Very truly yours, Ron Hand W&H Pacific Oregon Military Department .2002 ix, High ffresgrtye}�elopment Company, LLC .2002 ::oDMA\PCD0CS\P0RTLAND\262254 Exhibit G, Page 3 of 4 TOTAL P.03 FMP Hearing - Pronghorn Resort - 5/14/02 ,ice' f ?f S TA 7, go- i } . t �i+y « 7 ,.,L X+ t !� ♦ �,a `t z r'�• a esfi ♦S.n 4� #n . }� $ � � 4 f yrt:a�, x :cr Z 1 d �� ♦ �. s �. q . I. � � ie � t�C.,1a 1 t , .-, y r�',,.. ,v% � °�tlt + i4 t fl 1C r.'Jv; 1._ .._ y-ar i r[hi i t' c5`r �1,�t • l - r �� ,. r --� -- -=--;- � �; ` � � ``1,l.� >��c.: y.. �:. Cyt, � '• ' �� - `' �. � _;'a..,1 f ,,,i•r•��j,,,�t=. + !J � � � tta r'� va� i � 'i�� i,�yiiircr) `« �,�_ t \. �7 t•1/ � � r� ��\,y�i ;. > 4 t.,:,r'1 3 -}/ r `�,�4�"�`'�� % Ca'�r°� �ilrF' �,4 .+_N• � � `�•� r -y� �.� � '"�� y +�S vy�Y :,�Q� .mfr 4 y:f 1;. �R ,� � L` r - �.. ,? /�;�'s!e5!� :•'--- "F�1 t' .r tv3 }t a .... 1. '�' 4!. `, r.. �:2. ;. ,dish.-�c1 a +a. � �'o�i�'� he*� 44, .. ........ OR, Ilk, lk shall be entitled to rely on the certificate with respect to the matters set forth. The certificate shall be conclusive as between the Association, Declarant and all Owners and such persons deriving any interest through any of them. ARTICLE XIII WILDLIFE ISSUES 13.1 DOMESTIC PETS. Outdoor domestic cats are prohibited on the Project. All Owners shall assure that any domestic cat he or she owns, brings onto the Project or otherwise allows to come onto the Project shall be confined to the interior of Residences or other enclosed structures and shall not be permitted access to the outdoors. All other domestic pets within the Project shall be permitted outside only when on a leash. All Owners shall comply with this restriction and shall assure that its tenants, licensees, invitees and family members so comply. 13.2 FEEDING OF WILDLIFE. Feeding of wildlife is prohibited on the Project. No Owner shall feed wildlife, including big game species, within the Project. All Owners shall comply with this restriction and shall assure that its tenants, licensees, invitees and family members so comply. 13.3 SWALLOW NEST BOXES. Upon completion of the construction of the two Golf Courses, the Association shall assure that no fewer than 40 and no more than 50 swallow nest boxes shall be placed and maintained near water features on the Project. Declarant shall have the right, but not the obligation, to place such boxes. 13.4 BLUEBIRD AND OWL CAVITY NESTING STRUCTURES. Upon completion of the construction of the two Golf Courses, the Association shall assure that no fewer than 10 and no more than 20 cavity nesting structures shall be placed and maintained near water features on the Project to serve as nesting structures for bluebirds and small owls. Declarant shall have the right, but not the obligation, to place such structures. 13.5 BAT NESTING BOXES. Upon completion of the construction of the two Golf Courses, the Association shall assure that no fewer than 30 and no more than 40 bat nesting boxes shall be placed and maintained in the vicinity of water features on the Project. Declarant shall have the right, but not the obligation, to place such boxes. ARTICLE XIV OVERNIGHT LODGING LOTS 14.1 DESIGNATED OVERNIGHT UNITS. All Lots designated on the plat as Lots to be owned by individuals, but labeled "overnight lodging" (each, an "Overnight Unit") shall comply with this Article 14. All Overnight Units shall be available for overnight rentals no fewer than 45 weeks per year. Such rentals shall be through the central reservation system established for the Project. Such central reservation system may be created and operated by 49 ::ODMA\PCDOCS\PORTLAND\229786\7 Exhibit H, Page 1 of 3 FMP Hearing - Pronghorn Resort - 5/14/02 Declarant or created and/or operated by an entity to which Declarant assigns such central reservation system, which entity may be the owner or operator of a hotel in the Project. 14.2 RIGHTS OF COUNTY: In consideration of the approval by Deschutes County of the Project, Declarant hereby covenants and agrees, and each Owner of a Lot by the acceptance of any deed thereto, for itself and its heirs; executors, administrators, successors in interest and assigns, covenants and agrees as follows: (a) If any Owner of an Overnight Unit fails to comply with the terms of this Article 14, the County shall have authority to enforce such terms. (b) It is understood that by the provisions hereof, the County is not required to take any affirmative action, and any action undertaken by the County shall be that which, in its sole discretion, it deems reasonable to enforce the provisions. (c) It is understood that action or inaction by the County, under the provisions hereof, shall not constitute a waiver or relinquishment of any of its rights to seek redress for the violation of any of the provisions of this Article 14 or any of the rules, regulations and ordinances of the County, or of other laws by way of a suit in law or equity in a court of competent jurisdiction or by other action. (d) It is further understood that the remedies available to the County by the provision of this Article 14 or by reason of any other provisions of law shall be cumulative and not exclusive, and the maintenance of any particular remedy shall not be a bar to the maintenance of any other remedy. 14.2.2 Amendment: This Article 14 cannot be amended or eliminated without the consent of the County. ARTICLE XV MISCELLANEOUS PROVISIONS 15.1 TERM OF DECLARATION: This Declaration shall continue for a term of fifty (50) years from its date of recordation. Thereafter, this Declaration shall be automatically extended for successive periods of ten (10) years until two-thirds (2/3rds) of the Members approve a termination of this Declaration. 15.2 CONSTRUCTION OF PROVISIONS: The provisions of this Declaration shall be liberally construed to effect its purpose of creating a uniform plan for the development and operation of a planned development pursuant to applicable Oregon law. 15.3 BINDING: This Declaration shall be for the benefit of and be binding upon all Owners, their respective heirs, legatees, devisees, executors, administrators, guardians, conservators, successors, purchasers, tenants' encumbrances, donees, grantees, mortgagees, lienors and assigns. 50 ::ODMA\PCDOCS\PORTLAND\229786\7 Exhibit H, Page 2 of 3 FMP Hearing - Pronghorn Resort - 5/14/02 15.4 SEVERABILITY OF PROVISIONS: The provisions hereof shall be deemed independent and severable, and the invalidity or unenforceability of any one provision shall not affect the validity or enforceability of any other provision hereof. 15.5 GENDER, NUMBER AND CAPTIONS: As used herein, the singular shall include the plural and masculine pronouns shall include feminine pronouns, where appropriate. The title and captions of each paragraph hereof are not a part thereof and shall not affect the construction or interpretation of any part hereof. 15.6 DISTRIBUTION OF PROJECT DOCUMENTS: Upon the resale of any Lot by any Owner, the Owner shall supply to the buyer of the Lot a copy of each of the Project Documents and a copy of the current Budget. 15.7 EXHIBITS: All exhibits attached to this Declaration are incorporated by this reference as though fully set forth herein. 15.8 REQUIRED ACTIONS OF ASSOCIATION: The Association shall at all times take all reasonable actions necessary for the Association to comply with the terms of this Declaration or to otherwise carry out the intent of this Declaration. 15.9 SUCCESSOR STATUTES: Any reference in the Project documents to a statute shall be deemed a reference to any amended or successor statute. 15.10 CONFLICT: In the event of a conflict, the provisions of this Declaration shall prevail over the Bylaws and the Rules. 51 ::0DMA\PCD0CS\P0RTLAND\229786\7 Exhibit H, Page 3 of 3 FMP Hearing - Pronghorn Resort - 5/14/02 DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF PRONGHORN THIS DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS OF PRONGHORN ("Declaration") is made by High Desert Development Partners, LLC, a California limited liability company ("Declarant"). ARTICLE I INTENTION OF DECLARATION 1.1 FACTS: This Declaration is made with reference to the following facts: 1.1.1 Property Owned by Declarant: Declarant is the owner of all the real property and improvements (collectively, the "Original Property") thereon located in the unincorporated area of the County of Deschutes, State of Oregon, described as follows: See Exhibit A attached hereto and incorporated herein by this reference. 1.1.2 Nature of Project: Declarant intends to develop the Original Property as a planned development to be known as Pronghorn, pursuant to a Master Plan approved by Deschutes County, Oregon, (the "Project"). Declarant reserves the right to amend such Master Plan, subject to any approval required by Deschutes County, Oregon. To establish the Project, Declarant desires to impose on the Original Property these mutually beneficial restrictions, easements, assessments and liens under a comprehensive general plan of improvement and development for the benefit of all of the Owners, the Lots and Common Area within the Property and any property annexed into the Project. 1.1.3 Phases of Project: The Property is intended to be developed in two (2) or more Phases, and may include two golf courses, approximately 420 single-family residential lots, 160-180 rentable condominium units, a luxury hotel, a full-service spa, a conference center, a specialty retail center and related entities. Declarant may, but shall have no obligation to, annex all or any portion of any adjacent property owned by it now or in the future to the Project by recording a Declaration of Annexation in compliance with the provisions of this Declaration. After recordation of a Declaration of Annexation, the property described therein shall constitute a part of the Project and shall be subject to this Declaration. 1.2 APPLICABILITY OF RESTRICTIONS: Declarant hereby declares that the Property is subject to the provisions of this Declaration. The Property shall be held, conveyed, hypothecated, encumbered, leased, rented, used, occupied and improved subject to the covenants, conditions and restrictions stated in this Declaration. All such covenants, conditions and restrictions are declared to be in furtherance of the plan for the subdivision, development and ::ODMA\PCDOCS\PORTLAND\229786\7 Exhibit I, Total of 51 Pages FMP Hearing - Pronghorn Resort - 5/14/02 management of the Project as a Planned Development. All of the limitations, easements, uses, obligations, covenants, conditions, and restrictions stated in this Declaration shall run with the Project and shall inure to the benefit of and be binding on all Owners and all other parties having or acquiring any right, title or interest in any part of the Project. 1.3 RELATIONSHIP TO GOLF CLUB: Declarant or others intend to develop two golf clubs on a portion of the Property (each a "Golf Club" and collectively the "Golf Clubs") on the approximate locations shown on Exhibit B (the "Golf Club Property") together with other facilities. Declarant presently anticipates each Golf Club may include but not be limited to an eighteen hole golf course, a driving range, putting green, golf cart paths, tennis courts, tennis pavilion, swimming pool, a hotel, clubhouse, tennis and golf pro shops, locker room facilities, food and beverage facilities and other related facilities. The Golf Clubs and the Golf Clubs as entities will not be part of the Project. The Golf Clubs and related facilities will be separate and distinct from the Association and the Project and the Golf Clubs and related facilities shall be governed by their own rules, regulations and requirements. The Golf Clubs have rights to use portions of the Common Area pursuant to and in accordance with the terms and provisions contained in this Declaration and deeds by which easements may be granted to the owners of the adjacent property for the purposes of ingress and egress. Neither the Association nor any Owner shall have any rights in or privileges to the Golf Clubs or any of said facilities by virtue of this Declaration or the location of the Golf Clubs. Membership in the Golf Clubs and use of the facilities may be made available to Owners; however, no Owner is entitled to membership in the Golf Clubs or use of the facilities, or any other private facility operated within the overall Project. 1.4 PROXIMITY TO AIRPORT: Declarant hereby gives notice and discloses to each and every prospective owner of a Lot or Residence located in the Project that the Project is located near two airports. The Redmond/Bend Airport is approximately 4.5 miles north of the Project and the Bend Airport is approximately 5.0 miles south of the Project. Each Lot or Residence owner acknowledges and agrees that owning property in close proximity to an airport has benefits as well as detriments and that the detriments include the potential noise. Prospective residents should make themselves fully aware of both airport's current and future noise contours and to their own sensitivity levels prior to making their commitments. 1.5 CONSENT OF MASTER PLAN: Purchasers of property within the Project hereby consent to the Master Plan for the Project, as the same may hereafter be amended. By adoption of such Master Plan and this Declaration, Declarant is not committing itself to take any action for which definite provision is not made below. One who acquires property in the Project will have the advantage of any further development of the Project, but shall not have any legal right to insist that there be development, except as provided in this instrument or in the instruments which hereafter may be recorded annexing areas to the Project and subjecting areas to this Declaration. 1.6 VARIETY OF DEVELOPMENT: Declarant anticipates that the Project may include a variety of different types of development parcels. For example, residential parcels within the Project may include single-family lots, townhouses, zero lot line or other common 2 ::ODMA\PCDOCS\PORTLAND\229786\7 wall type structures, condominiums, fractional ownership dwellings, or timeshare interests. Recreation facilities may include facilities that are Common Areas for the Project and available only for use by the Owners. Other recreation facilities, including one or more golf courses, may be privately owned by Declarant or third parties and available for use by the public. Finally, the Project may include one or more commercial developments, all in accordance with the Master Plan, as the same may hereafter be amended. 1.7 NOW, THEREFORE, Declarant hereby declares that the Original Property and any property annexed into the Project shall be held, sold and conveyed subject to the following easements, covenants, restrictions and charges, which will run with such property and shall be binding upon all parties having or acquiring any right, title or interest in such property or any part thereof and shall inure to the benefit of each owner thereof. ARTICLE II DEFINITIONS Unless otherwise defined or unless the context clearly requires a different meaning, the terms used in this Declaration, the Plat and any grant deed to a Lot shall have the meanings specified in this Article. 2.1 ADDITIONAL CHARGES: The term "Additional Charges" shall mean costs, fees, charges and expenditures, including without limitation, attorneys' fees, late charges, interest and recording and filing fees actually incurred by the Association in collecting and/or enforcing payment of assessments, fines and/or penalties. 2.2 ADDITIONAL PROPERTY: The term "Additional Property" shall mean any additional property annexed to the Project by the Declarant or the Association, or their successors. 2.3 ARTICLES: The term "Articles" shall mean the Articles of Incorporation of Huntington Ranch Owners Association, which are or shall be filed in the Office of the Secretary of State of the State of Oregon. 2.4 ASSESSMENTS: Those assessments levied pursuant to Article VII. 2.5 ASSOCIATION: The term "Association" shall mean Huntington Ranch Owners Association, its successors and assigns, a nonprofit corporation to be incorporated under the laws of the State of Oregon. 2.6 BOARD: The term "Board" shall mean the Board of Directors of the Association. 2.7 BUDGET: The term "Budget" shall mean a pro forma operating budget prepared by the Board in accordance with Section 7.6.1 of this Declaration. All references to "Budget" shall include the Project Budget, unless otherwise specified. :ODMA\PCDOCS\PORTLAND\229786\7 2.8 BUILDER: The term "Builder" shall mean any entity which (i) is designated as such by Declarant in a writing delivered to the Association, and (ii) acquires from Declarant at least two (2) Lots prior to the completion of construction of Residences on those Lots. A Builder may also be Declarant if the provisions of Section 2.14 are satisfied. High Desert Development Partners, LLC is hereby designated as a Builder. 2.9 BYLAWS: The term "Bylaws" shall mean the Bylaws of the Association and any amendments thereto. 2.10 CLUB OWNER: The term "Club Owner" shall mean the holder or holders of record fee title to either of the Golf Club Properties or their designees. 2.11 COMMON AREA: The term "Common Area" shall mean those parcels designated as and as shown on the Plat. The term "Common Area" shall also mean any property described as Open Space or Common Area on any Plat of the Property or in a Declaration of Annexation. Common Area includes all Improvements situated thereon or therein. 2.12 COUNTY: The term "County" shall mean the County of Deschutes, State of Oregon; provided, however, if at any time the Project is annexed into the limits of a city, such city shall succeed to the rights of the County hereunder. 2.13 DECLARANT: The term "Declarant" shall mean High Desert Development Partners, LLC so long as it owns some portion of the Project. The term "Declarant" shall also mean successors -in -interest of Declarant, if (i) such successor(s)-in-interest acquires all or any portion of Declarant's interest in the Project for the purposes of development, sale, operation and/or rental; and (ii) a certificate, signed by Declarant and the successor(s), has been recorded in the County in which the successor(s) in interest assumes the rights and duties of Declarant to the portion of the Project so acquired. There may be more than one Declarant. 2.14 DECLARATION: The term "Declaration" shall mean this Declaration of Covenants, Conditions and Restrictions of Huntington Ranch and includes any subsequently recorded amendments. 2.15 DECLARATION OF ANNEXATION: The term "Declaration of Annexation" shall mean any instrument recorded in the County which extends the provisions of this Declaration to any Additional Property. 2.16 DOCUMENTS: The term "Documents" or "Project Documents" shall mean the Articles, Bylaws, this Declaration and the Rules. 2.17 ELIGIBLE HOLDER: The term "Eligible Holder" shall mean any Institutional Mortgagee who has delivered a written notice to the Association which contains its name, address and the number or address of the Lot encumbered by the Mortgage and requests that the Association deliver written notice to it of any or all of the events specified in Section 10.5. 4 ::ODMA\PCDOCS\PORTLAND\229786\7 2.18 FIRST MORTGAGE: The term "First Mortgage" shall mean a Mortgage which has priority under the recording statutes of the State of Oregon over all other Mortgages encumbering a specific Lot. 2.19 FIRST MORTGAGEE: The term "First Mortgagee" shall mean the Mortgagee of a First Mortgage. 2.20 GOLF CLUB: The term "Golf Club" shall mean either of the Golf Clubs to be developed on the Golf Club Property. 2.21 GOLF CLUB PROPERY: The term "Golf Club Property" shall mean the real property described on Exhibit B attached hereto and all Improvements situated on such real property. The term "Golf Club Property" shall be deemed (i) to encompass any land added to the real property described on Exhibit B or (ii) to exclude any land removed from the real property described on Exhibit B by any alteration shown on any subsequently recorded amended final plat, certificate of correction, lot line adjustment and/or record of survey which affects the boundaries of the real property described on Exhibit B attached hereto. 2.22 IMPROVEMENTS: The term "Improvements" shall mean everything constructed, installed or planted on property subject to this Declaration, including without limitation, buildings, streets, fences, walls, paving, pipes, wires, grading, landscaping and other works of improvement, excluding only those Improvements or portions thereof which are (i) dedicated to the public or a public or quasi -public entity or utility company, and accepted for maintenance by the public, such entity or utility company, (ii) owned and maintained by either Golf Club or (iii) owned and maintained by Declarant or Declarant's successors -in -interest. 2.23 INSTITUTIONAL MORTGAGEE: The term "Institutional Mortgagee" shall mean (i) a First Mortgagee which is the State of Oregon, a bank, a savings and loan association, an insurance or mortgage company or other entity or institution chartered under or regulated by any federal and/or state law or (ii) an insurer or governmental guarantor of a First Mortgage including without limitation the Federal Housing Authority and the Veteran's Administration. 2.24 INVITEE: The term "Invitee" shall mean any person whose presence within the Project is approved by or is at the request of the Association or a particular Owner, including, but not limited to, lessees, tenants, and the family, guests, employees, licensees or invitees of Owners, tenants or lessees. 2.25 LOT: The term "Lot" means a platted or partitioned lot, tract or condominium unit within the Property. The term "Lot" shall also mean any Lot described as such in a Declaration of Annexation. Lot includes all Improvements situated thereon or therein. Lot does not include any Common Areas or the Golf Club Property. 2.26 MEMBER: The term "Member" shall mean an Owner. 2.27 MORTGAGE: The term "Mortgage" shall mean any duly recorded mortgage or deed of trust encumbering a Lot. 5 ::ODMA\PCDOCS\PORTLAND\229786\7 2.28 MORTGAGEE: The term "Mortgagee" shall mean a mortgagee under a Mortgage as well as a beneficiary under a deed of trust. 2.29 NOTICE AND HEARING: The term "Notice and Hearing" shall mean the procedure which gives an Owner notice of an alleged violation of the Project Documents and the opportunity for a hearing before the Board. 2.30 OWNER: The term "Owner" shall mean the holder of record fee title to a Lot, including Declarant as to each Lot owned by Declarant. If more than one person owns a single Lot, the term "Owner" shall mean all owners of that Lot. The term "Owner" shall also mean a contract purchaser (vendee) under an installment land contract but shall exclude the contract vendor and any person having an interest in a Lot merely as security for performance of an obligation. 2.31 ORIGINAL PROPERTY: The term "Original Property" shall mean the Property owned by Declarant as of the original date hereof and identified in attached Exhibit A. 2.32 PHASE: The term "Phase" shall mean any Lots and/or Common Area which are simultaneously made subject to the provisions of this Declaration either by recording this Declaration or by recording a Declaration of Annexation. 2.33 PLAT: The term "Plat" shall mean the subdivision plat of Huntington Ranch in the official records of the County of Deschutes, including any subsequently recorded amended final plat, certificates of correction, lot line adjustments and/or records of survey. The term "Plat" shall also mean any recorded subdivision or parcel, plat or map described in a Declaration of Annexation, including any subsequently recorded amended final plats, certificates of correction, lot line adjustments and/or records of survey. 2.34 PROJECT: The term "Project" as used herein shall mean the Original Property and any property described in a Declaration of Annexation, as the same is used and developed in accordance with this Declaration. 2.35 PROPERTY: The Original Property and any Additional Property annexed into the Project at any time. 2.36 PROPERTY OWNED BY DECLARANT: The term "Property Owned by Declarant" shall mean the Original Property and any other property adjacent to the Project now or subsequently owned by Declarant. 2.37 RESIDENCE: The term "Residence" shall mean a dwelling situated on a Lot, including any attached garage also situated on a Lot. 2.38 RULES: The term "Rules" shall mean the rules adopted by the Board and the Architectural and Landscape Design Guidelines adopted by the Architectural Design Committee. 6 ::ODMA\PCDOCS\PORTLAND\229786\7 ARTICLE III PROPERTY SUBJECT TO DECLARATION; ANNEXATION 3.1 INITIAL DEVELOPMENT. Declarant hereby declares that all of the real property described in attached Exhibit A is owned and shall be owned, conveyed, hypothecated, encumbered, used, occupied and improved subject to this Declaration. 3.2 RESTRICTION ON ANNEXATION: Property may be added to the Project by annexation only in accordance with the provisions of this Article. 3.3 PROPERTY WHICH MAY BE ANNEXED; APPROVAL OF MEMBERS: All or any portion of any property adjacent to the Project and owned by Declarant, now or in the future, may be added to the Project by Declarant as one or more subsequent Phases without the approval of the Association or any Owner other than the Declarant, if annexed prior to the fifth (5`h) anniversary of the date on which Declarant first conveys Common Areas to the Association ("Annexation Period"). Any other property or any adjacent property owned by Declarant and not annexed within the Annexation Period may be annexed to the Project only with the approval of two-thirds (2/3) of each class of Members. 3.4 PROCEDURE FOR ANNEXATION: In addition to any required approval by Members, a final subdivision plat(s) or final parcel map(s) and a Declaration of Annexation for the property to be annexed must be recorded. The Declaration of Annexation shall: (i) describe the portion of the Additional Property to be annexed; (ii) describe any Common Area within the Additional Property to be annexed; (iii) set forth the ownership of any such Common Area; (iv) specify that all of the covenants, conditions and restrictions of this Declaration shall apply to the annexed Additional Property in the same manner as if it were originally covered by this Declaration; and (v) contain any other provisions required by applicable law. The Declaration of Annexation may also (i) impose any additional covenants, conditions and restrictions on the Additional Property that are necessary to include the property in the Project and to reflect differences in nature, if any, of the Improvements to be constructed on the Additional Property and (ii) provide for a specified date on which Assessments shall commence for Lots in that Phase, provided that the date specified may not be later than the first day of the first month following the month in which the first Lot in that Phase is conveyed to an Owner. No Declaration of Annexation shall diminish the covenants, conditions or restrictions established by this Declaration nor shall it discriminate between the Owners in the Project. No Declaration of Annexation shall alter or change the general common plan or scheme created by this Declaration nor shall it affect the provisions hereof as covenants running with the land or as equitable servitudes. There shall be no limit on the number of Lots or units that Declarant may create or annex into the Project during the Annexation Period. Additionally, during such Annexation Period, there shall be no limitation on the right of Declarant to annex additional Common Area into the Project. 3.5 EFFECT OF ANNEXATION: After complying with the procedures for annexation and upon the commencement of Assessments for Lots in the annexed Phase, Owners 7 ::ODMA\PCDOCS\PORTLAND\229786\7 of Lots in the annexed Phase shall be Members, shall be subject to this Declaration and shall be entitled to use all Common Area in the Project. The Association shall reallocate the Regular Assessments so as to assess each Owner of a Lot in the Project for a proportionate share of the total expenses of the Project. 3.6 DEANNEXATION AND AMENDMENT: During the Annexation Period, Declarant has the right, at its sole option, to (i) amend a Declaration of Annexation by executing and recording an amendment of the Declaration of Annexation provided that the amendment is consistent with this Article, or (ii) remove from the Project any property described in a recorded Declaration of Annexation for a Phase by executing and recording a rescission of the Declaration of Annexation, as long as all of the following conditions are satisfied at the time of the execution and recordation of the amendment or rescission: (a) no Lot in that Phase has been conveyed to an Owner; (b) no Common Area in that Phase has been conveyed to the Association; and (c) Assessments have not commenced for any Lot in the annexed property. 3.7 AMENDMENT: During the Annexation Period, this Article may not be amended without the written consent of Declarant. ARTICLE IV OWNERSHIP AND EASEMENTS 4.1 NON -SEVERABILITY: The interest of each Owner in the use and benefit of the Common Area shall be appurtenant to the Lot owned by the Owner. No Lot shall be conveyed by an Owner separately from the appurtenant interest in the Common Area. Any conveyance of any Lot shall automatically transfer the right to use the Common Area without the necessity of express reference in the instrument of conveyance. There shall be no judicial partition of the Common Area. Each Owner, whether by deed, gift, devise or operation of law, for the Owner's own benefit and for the benefit of all other Owners and each successor of each Owner, specifically waives and abandons all rights, interests and causes of action for judicial partition of any interest in the Common Area and does further agree that no action for judicial partition shall be instituted, prosecuted or reduced to judgment. The ownership interests in the Common Area and Lots described in this Article are subject to the easements described, granted and reserved in this Declaration. Each of the easements described, granted or reserved herein shall be established upon the recordation of this Declaration and shall be enforceable as equitable servitudes and covenants running with the land for the use and benefit of the Owners and their Lots superior to all other encumbrances applied against or in favor of any portion of the Project. 4.2 OWNERSHIP OF LOTS: Title to each Lot in the Project shall be conveyed in fee to an Owner. The Association, Declarant or a Club Owner who receives title to any portion of a Lot which is transferred by the Owner as a result of subsequently recorded amended final plats, certificates of correction, lot line adjustments and/or records of survey shall take such property free and clear of any requirement that such land be devoted to use as a Lot. Upon conveyance, such land maybe used for any purpose for which land adjacent to it maybe used. Any land which is added to a Lot as a result of subsequently recorded amended final plats, certificates of 8 ::ODMA\PCDOCS\PORTLAND\229786\7 correction, lot line adjustments and/or records of survey shall be deemed, for all purposes of this Declaration, to be part of the Lot to which it is added. 4.3 OWNERSHIP OF COMMON AREA: Title to or a legal ownership interest in the Common Area in each Phase shall be conveyed to the Association prior to or concurrently with the conveyance of the first Lot in that particular Phase to an Owner. Declarant shall comply with all applicable laws in turning over Common Area or administrative control to the Association. The Association may not encumber, sell or transfer the Common Areas owned directly or indirectly by the Association for the benefit of the Lots unless such encumbrance, sale or transfer has been approved by a majority of the voting rights in the Association. Notwithstanding the foregoing, no transfer of any Common Area shall be valid without the written consent of the County if such transfer would put the Project in violation of County open space ordinances or other similar applicable governmental restrictions. This requirement shall not apply to the easements described in Section 4.4 below. 4.4 EASEMENTS: The easements and rights specified in this Article are hereby created and shall exist whether or not they are also set forth in individual grant deeds to Lots. All easements shall be binding upon the successors in interest and assigns of the owners of both the dominant and servient tenements. 4.4.1 Easements On Plat: The Common Area and Lots are subject to the easements and rights of way shown on the Plat. 4.4.2 Easements For Common Area: Every Owner shall have a non-exclusive right and easement for the ingress, egress, use and enjoyment of the Common Area which shall be appurtenant to and shall pass with the title to every Lot, subject to the following provisions: (a) The right of the Board, after Notice and Hearing, to suspend an Owner's right to use any recreational facilities; (b) The right of the Association to dedicate and/or grant easements over all or any portion of the Common Area; (c) The easements and rights reserved to Declarant or otherwise granted in this Declaration; and (d) The easements and rights reserved and granted to the Golf Clubs (i) prior to the recordation of this Declaration, (ii) in this Declaration and (iii) in the deeds by which the Common Area or an interest in the Common Area was conveyed to the Association. 4.4.3 Utilities: Notwithstanding anything expressed or implied to the contrary, this Declaration shall be subject to all easements granted by Declarant for the installation and maintenance of drainage facilities, master television antenna or cable systems, wireless communications systems, security and similar systems, and all utilities, including but not limited to sewers, drainage systems, storm drainage systems, retention ponds, electrical, gas, telephone, and water necessary or appropriate for the development of the Project. 9 ::ODMA\PCDOCS\PORTLAND\229786\7 4.4.4 Encroachment: Non-exclusive rights and easements are reserved and granted (i) for the benefit of each Lot, as dominant tenement, over, under and across each other Lot and the Common Area, as servient tenements, and (ii) for the benefit of the Common Area, as dominant tenement, over, under and across each Lot, as servient tenement. Such easements shall be for the purposes of encroachment, support, occupancy and use of such portions of Lots and/or Common Area as shall be encroached upon, used and occupied by the dominant tenement as a result of any original construction design, accretion, erosion, deterioration, decay, errors in original construction, movement, settlement, shifting or subsidence of any building or structure or any portion thereof. If any portion of the Project is partially or totally destroyed, the encroachment easement shall exist for any replacement structure which is rebuilt pursuant to the original construction design. The easement for maintenance of the encroaching Improvement shall exist for as long as the encroachment exists; provided, however, that no easement for encroachment shall be created due to the willful misconduct of the Association or any Owner. Any easement for encroachment may but need not be cured by repair or restoration of the Improvement. 4.4.5 Environmental Easement: There is hereby reserved for the benefit of Declarant, the Association, and their respective Invitees, a non-exclusive easement on, over and across all portions of the Project, excluding structures, for the purposes of taking any action necessary to effect compliance with environmental rules, regulations, and procedures promulgated or instituted from time to time by the Board or by any governmental entity. This easement includes, without limitation, the right, but not the obligation, to implement erosion control procedures and practices, the right to maintain any and all wetland areas on the Project, the right to drain standing water and the right to do whatever is necessary to comply with federal, state or local laws governing toxic or hazardous wastes. 4.4.6 Golf Club Easements: The easements and rights specified in this subsection 4.4.6 are hereby created for the benefit of the Golf Clubs, the Club Owners and all Invitees of the Golf Clubs whose presence at the Golf Clubs is at the request of or approved by either Club Owner and shall exist whether or not such easements are also set forth in individual grant deeds conveying Lots. All easements shall be appurtenant to the Golf Clubs and shall be binding upon the successors -in -interest and assigns of the owners of both the dominant and servient tenements. No easement set forth in this subsection shall be construed to act as a limitation upon the ability of either Golf Club or either Club Owner to hold tournaments from time to time and to provide whatever temporary services and facilities are deemed appropriate by such Club Owner in connection with such tournament, including but not limited to, parking and storage on Common Areas. As full and complete compensation for use by the Club Owners and their Invitees, and maintenance by the Association of the servient tenements, each Club Owner shall pay to Association percent (%) of the Association's costs and expenses under Section 6.1 of this Declaration. (a) Golf Course Overspray and Intrusion Easement: There is reserved for the benefit of the Golf Clubs, the Club Owners, and their Invitees a non-exclusive right and easement appurtenant to each Golf Club for purposes of overspray in connection with the watering of the golf courses, for the intrusion of golf balls from the fairways, roughs and greens 10 ::ODMA\PCDOCS\PORTLAND\229786\7 thereof and for the retrieval of golf balls. Any person or entity for whose benefit the right and easement for overspray and intrusion is reserved shall not be liable to any Owner or the Association for any damage to person or property occasioned by such overspray or intrusion unless occasioned by the intentional act of such person. The rights and easements reserved by this subsection shall be for the benefit of Declarant and the Club Owners and for the benefit of their employees, contractors, agents, guests, invitees, licensees or members (collectively referred to as "beneficiaries"). Each owner of a Lot acknowledges and agrees that owning property adjacent to a golf course has benefits as well as detriments and that the detriments include the risk of damage to property or injury to persons and animals from golf balls or from players retrieving golf balls. Each Owner hereby assumes such risks, releases Declarant, the Club Owners and their beneficiaries from and agrees to indemnify Declarant, the Club Owners and their beneficiaries and hold Declarant, the Club Owners and their beneficiaries harmless from and against any and all liability for damage or injury caused by golf balls which intrude in, on or around the Owner's Lot or Residence. (b) Utility Easement: Each Golf Club shall have and is hereby granted a non-exclusive easement over, under, through and across the Common Area for the purposes of installing, maintaining, repairing and replacing, and using master television antenna or cable systems, wireless communication systems, security and similar systems, and all permanent and temporary utilities, including but not limited, to sewers, drainage systems, storm drainage systems, retention ponds, electrical, gas, telephone, and water necessary or appropriate for the development or operation of such Golf Club, including tournaments held at such Golf Club. (c) Ingress and Egress Easement: Each Golf Club shall have and is hereby granted a non-exclusive appurtenant easement over and across the Common Area for the purposes of ingress to and egress from such Golf Club by golf course maintenance vehicles, and vehicles, pedestrians and bicycles using or visiting such Golf Club. The Association may not unreasonably restrict rights of ingress and egress to either Golf Club. The Association may not impose any restrictions, limitations or requirements for entry into either Golf Club which are not imposed and enforced against all Owners and Invitees. If vehicle passes are issued to Association's Members, they must be made available to the owners of the Golf Clubs and their licensees and members on the same terms as they are made available to Association's Members. (d) General Easements onto Common Area and 20 Foot Strip Over Lots: Each Golf Club shall have and is hereby granted a non-exclusive appurtenant easement over and across the Common Area and the first twenty (20) feet of any Lot which shares a common boundary with such Golf Club for the following purposes: (i) use and enjoyment of the golf cart paths by golf course maintenance vehicles and vehicles and pedestrians using the golf course located within such Golf Club, provided however, no golf cart path shall be constructed on any portion of a Lot, (ii) constructing, maintaining, repairing and replacing pedestrian and golf cart paths and directional signs related to the golf course located within such Golf Club, (iii) maintaining any lake, pond, wetland area, waterway, or other body of water and moving and removing unsightly brush, and (iv) permitting registered golf course players and their caddies to enter to retrieve golf balls in accordance with the rules of the game of golf (any such entry shall be limited to pedestrian access for the minimum period of time required to retrieve golf balls). 11 ::ODMA\PCDOCS\PORTLAND\229786\7 (e) Easements To Facilitate Tournaments: Each Golf Club shall have and is hereby granted a non-exclusive easement over and across the Common Area appurtenant to such Golf Club for all purposes reasonably necessary to hold and conduct tournament play at such Golf Club including without limitation, ingress and egress by vehicular and pedestrian traffic, parking, utility services, directional signs, traffic control and other related uses. During such periods, such Golf Club shall have the right to take all reasonable actions which are appropriate for holding such an event. Such Golf Club is solely responsible for all additional costs incurred as a result of the tournament and shall repair any damage caused to the Common Area as a result of the tournament. The Association shall have no right to prohibit or impair the ability of either Club Owner to take any and all reasonable actions which are appropriate for holding a tournament. (f) Additional Easements: Each Golf Club and its duly authorized agents and representatives shall have a non-exclusive right and easement as is necessary or appropriate to the exercise of any rights granted to such Golf Club or to the applicable Club Owner by this Declaration, including the right to enter upon Lots and Common Area, subject to the limitations contained in this Declaration. 4.4.7 Sign Easements: Each Golf Club shall have and is hereby granted a non-exclusive easement over and across the Common Area appurtenant to such Golf Club for the purposes of locating, establishing, maintaining, repairing, replacing and lighting all of its signs permitted pursuant to this Declaration. 4.4.8 Right to Photograph: Declarant and each Club Owner each hereby reserves a non-exclusive easement and right in gross to display, use and distribute for any and all purposes photographs, video recording and similar reproductions of all Residences and Improvements constructed anywhere in the Project. 4.4.9 Easement to Governmental Entities: All governmental and quasi - governmental entities, agencies and utilities and their agents shall have a non-exclusive easement over the Common Area for the purposes of performing their duties within the Project. 4.4.10 Association's Easements: The Association and its duly authorized agents and representatives shall have a non-exclusive right and easement as is necessary to perform the duties and obligations of the Association set forth in the Project Documents, including the right to enter upon Lots, subject to the limitations contained in this Declaration. 4.4.11 Easement to Declarant For Adjoining Property: Declarant shall have, and hereby expressly reserves, a right and easement over and across the Common Area for the purposes of reasonable ingress to and egress, from, over and across the Project, including private roads and pathways, to adjacent property owned by Declarant until such property is annexed to the Project. 4.4.12 Annexation of Additional Property: Upon the recordation of a Declaration of Annexation, the Lots and the Owners of Lots in the annexed Phase shall have all of the rights and easements specified in this Article and the Lots and the Owners of Lots in the 12 ::ODMA\PCDOCS\PORTLAND\229786\7 Project prior to annexation shall have all of the easements specified in this Article as though the annexed Phase were initially part of the Project. ARTICLE V USES AND RESTRICTIONS 5.1 ALTERATIONS: Except as otherwise specifically provided in this Declaration, no Improvement (including landscaping) shall be constructed, reconstructed, performed, installed, altered, remodeled or demolished, nor shall the color of any Improvement be changed ("Alteration") until plans have been submitted and approved pursuant to Article XII. For purposes of this Declaration, the term "Alteration" shall not include (i) repainting or refinishing any Improvement in the same color, (ii) repairing any Improvement with the same materials, (iii) the construction by Declarant of any improvements prior to the turnover of control to the Association pursuant to Section 5.2 ANIMALS: An Owner may keep two (2) customarily uncaged household pets within that Owner's Lot as long as the animals have no impact on the wildlife in the area. Each Owner may also maintain a reasonable number of small caged animals, birds or fish. Unless the Rules increase the number or type of animals which may be kept, no other animals or pets are permitted in the Project. No horses are permitted within the Owner's Lot under any circumstances. Dogs who consistently bark are deemed to be nuisances and cannot be kept within the Project. The Board shall have the right to prohibit the maintenance of any pet which, after Notice and Hearing, is found to be a nuisance to other Owners. No animals may be kept for commercial purposes. No dog shall be allowed in the Common Area unless it is under the control of a responsible person by leash or other means. Each Owner or his or her Invitee shall restore the Common Area to the condition it was in immediately preceding its use by any dog permitted on the Common Area by the Owner or Invitee. The Association may use any suitable portions of the Common Area for grazing of livestock. 5.3 ANTENNAS: No outside television antenna, microwave or satellite dish, aerial, or other such device shall be erected, constructed or placed on any Common Area or any Lot, unless (i) installed by Declarant or (ii) first approved in accordance with the provisions of Article XII. 5.4 SWIMMING POOLS: No swimming pool may be constructed without the approval of the Architectural Committee as provided in Article XII. 5.5 APPEARANCE OF GOLF CLUB: Each Owner acknowledges and agrees that neither any Owner nor the Association shall have any right to compel either Club Owner or the owner of either golf course to maintain the Golf Clubs or golf courses or any improvements thereon to any particular standard of care and that the appearance of the Golf Clubs, golf courses and improvements shall be determined in the sole discretion of the respective Club Owner. 5.6 BUSINESSES: Except for (i) uses within Residences permitted by local ordinances, (ii) home offices, entertainment, business meetings and social events which do not 13 ::ODMA\PCDOCS\PORTLAND\229786\7 create regular customer, client or employee traffic, (iii) the business of Declarant and any Builders in completing the development and disposition of the Lots in the Project, (iv) the business of Club Owners in maintaining and operating the Golf Clubs, and (v) the business of Declarant or its successors or assigns in operating the conference center, the overnight facility, the hotel, the retail center, the spa, the condominium rentals, the related facilities and other businesses commenced by Declarant or its successor before the Annexation Period ends, no business of any kind shall be established, maintained, operated, permitted or constructed in any portion of the Project. However, the provisions of this Section are not intended to preclude special event liquor licenses and other permits that may be obtained for activities within the Project. 5.7 CLOTHES DRYING: Except within screened service yards, outside clotheslines and other outside facilities for drying or airing clothes are prohibited and shall not be erected, placed or maintained on any Lot outside of a Residence. No clothing, rugs or other item may be hung on any exterior railing, fence, hedge or wall. 5.8 DRAINAGE: No Owner shall impede, alter or otherwise interfere with the drainage patterns and facilities in the Project until plans have been submitted and approved pursuant to Article XII and approved by any public authority having jurisdiction thereof. This Declaration provides notice that many Lots were carefully graded by Declarant to provide positive drainage to a common drainage system. Positive drainage is achieved by shaping and cutting drainage swales or channels in the ground. These swales are engineered progressively lower than the adjoining surface ground areas on the Lot and provide a receptacle and conduit to drain water away from foundations and into the streets or Project storm drainage system. Swales also help to prevent surface drainage water from flowing to adjacent Lots. All drainage on each Lot must flow away from the foundation of the Residence, must tie into the common drainage system and may not drain onto either golf course unless expressly approved by the applicable Club Owner. Each Residence must have a roof gutter system and downspouts which are directly connected to the Project's storm drainage system or piped through the curbs into the streets and the Owner of the Residence may not construct or alter a Residence or install landscaping in any manner which results in additional roof waters draining anywhere other than directly into such pipes or the Project's storm drainage system. 5.9 ENGINEERING REQUIRED: No Owner shall grade or fill or otherwise alter the slope or contour of any Lot, as established by Declarant, without first retaining a soils engineer or civil engineer, as appropriate, licensed by the State of Oregon, and receiving from such engineer written recommendations, plans and specifications regarding such proposed grade, fill and/or alteration. No Owner shall perform any such grade, fill or alteration except in conformity with the recommendations, plans and specifications of such engineer. In addition, the Owner shall also obtain prior approval in accordance with the provisions of Article XII of this Declaration and shall comply with all applicable County requirements. 5.10 EXTERIOR LIGHTING: No Owner shall remove, damage or disable any exterior light, regardless of where located, which is connected to the Association's electric service. 14 ::ODMA\PCDOCS\PORTLAND\229786\7 5.11 FENCING: 5.11.1 Adjacent to Golf Courses: Except for fencing originally constructed or approved by Declarant, there shall be no fencing constructed, maintained or placed (i) on any portion of the Project which adjoins the Golf Club Property, (ii) on any portion of the common Area or any portion of any Lot which is subject to the twenty (20) foot easement established pursuant to Section 4.4.6(d) of this Declaration or (iii) on any portion of the Project which, in the judgement of a Club Owner, unreasonably interferes with the view from that Club Owner's Golf Club. For purposes of the preceding sentence, fencing includes fences, walls, netting, and other similar barriers, including landscaping. Any fencing approved in writing by an affected Club Owner shall be deemed to not be in violation of this subsection. 5.11.2 Chain Link Fences: No chain link fences shall be permitted within the Project except for (i) maintenance or buffer areas located within the Common Area or either Golf Club, (ii) tennis courts, and (iii) those erected by Declarant. 5.11.3 Other Fences: All fences within the Project must conform to the overall project fencing plan contained in the Architectural and Landscape Design Guidelines. 5.11.4 "Spite" Fences: Any perimeter fence on a Lot which is constructed parallel to any portion of an existing fence must maintain a minimum ten (10) foot horizontal separation. 5.12 GOLF COURSE AREAS: Owners and their Invitees adjacent to all golf course areas shall not engage in any action which would distract from the playing quality of the golf course. Such actions include but are not limited to burning materials where the smoke will cross the golf course, maintaining pets which are creating excess noise, playing loud radios, stereos, televisions or musical instruments, running, walking, jogging, bicycle riding, or skateboarding on the fairways or golf cart paths, picking up golf balls or otherwise interfering with play. 5.13 GOLF CART PATHS: Portions of the golf cart path system may be situated on the Common Area. No Owner or Invitee shall have any right to use any portion of the golf cart path system, including any portion situated on the Common Area or any Lot without the prior approval of the owner or manager of the affected Golf Club. All golf cart paths shall be maintained, repaired and replaced by the applicable Club Owner. 5.14 GOLF TOURNAMENTS: From time to time, either or both Golf Clubs may be used for tournament play. At such times, vehicular and pedestrian traffic within the Project is likely to increase substantially as persons who will play in the tournament as well as persons who will watch the tournament will be invited, the broadcast media and their equipment may be present, additional parking, utility services, directional signs, traffic control, security, clean-up crews and other services may be required. During all such periods, the Golf Clubs shall have the right to take all reasonable actions which are appropriate for holding such an event as long as such Golf Club(s) is solely responsible for all additional costs incurred as a result of the tournament, including repairing any damage caused to the Common Area as a result of the 15 ::ODMA\PCDOCS\PORTLAND\229786\7 tournament. The Association shall have no right to prohibit either Club Owner from taking any and all reasonable actions which are appropriate for holding a tournament. 5.15 INTRUSION ONTO GOLF COURSE: Neither the Association nor any Owner shall have any right of entry onto either Golf Club without the prior written consent of the applicable Club Owner. All permitted entry shall be made only through entry points designated by the applicable Golf Club; no Owner may access either Golf Club or either golf course from any adjacent residential Lot. Neither the Association nor any Owner may permit any irrigation water to overspray or drain from its Common Area or Lot onto any portion of either Golf Club without approval of the applicable Club Owner. Neither the Association nor any Owner may permit any fertilizer, pesticides or other chemical substances to overspray, drain, flow or be disposed of in any manner upon either Golf Club. If the Association or any Owner violates the provisions of this Section 5.15, it shall be liable to the owner of the affected Golf Club for all damages to the turf resulting from the violation and all damages, including consequential damages suffered by such Club Owner. 5.16 INVITEES: Each Owner shall be responsible for compliance with the provisions of the Project Documents by his or her Invitees. An Owner shall promptly pay any Reimbursement Assessment levied and/or any fine or penalty imposed against an Owner for violations committed by his or her Invitees. 5.17 IRRIGATION SPECIFICATIONS: The irrigation specifications contained in the Architectural and Landscape Design Guidelines have been designed to minimize consumption of water in landscape irrigation on individual Lots and Common Area. The Association shall follow the irrigation specifications when irrigating Common Area and all Owners shall follow the irrigation specifications when irrigating their Lots. 5.18 LANDSCAPING: No hedge, shrubbery, plant or tree which obstructs sight -lines at intersections of driveways, streets or roadways within the Project shall be permitted to remain on any Lot. No Owner shall cut, remove, or mutilate any trees, shrubs, bushes or other vegetation having a trunk diameter of six (6) inches or more at a point four (4) feet above ground level, without obtaining approval pursuant to Article XII, except as provided in Section 6.8. 5.19 LIQUOR SALES: The Golf Club Property may be used for the sale of liquor to be consumed on-site and/or off-site. In addition, special event liquor licenses and other permits may be obtained for activities within the Project from time to time. Special event liquor licenses for events held within Common Area or for events which utilize Common Area are subject to the approval of the Board; the Board shall have sole and absolute discretion to determine whether to grant approval of any request. By acceptance of a deed to a Lot, each Owner agrees not to contest any application for a liquor license to be used for the sale of liquor within the Golf Club Property and not to object to any special event liquor licenses applied for or issued from time to time. 5.20 MINERAL EXPLORATION: No Lot shall be used to explore for or to remove any oil, hydrocarbons or minerals of any kind without the approval of the Board and only if permitted by local ordinances. 16 ::ODMA\PCDOCS\PORTLAND\229786\7 5.21 OWNERSHIP OF PROPERTY NEAR A GOLF COURSE: By acceptance of a deed to a Lot, each Owner acknowledges and agrees that owning property adjacent to the golf courses has benefits as well as detriments and that the detriments include: (a) the risk of damage to property or injury to persons and animals from golf balls which are hit onto an Owner's Lot or other portion of the Project utilized by the Owner, (b) the entry by golfers onto Owner's Lot or other portions of the Project utilized by the Owner to retrieve golf balls; (c) overspray in connection with the watering of the roughs, fairways and greens on the golf courses; (d) noise from golf course maintenance and operation equipment (including, without limitation, irrigation systems, compressors, blowers, mulchers, tractors, utility vehicles and pumps, all of which may be operated at all times of the day and night and/or continuously); (e) odors arising from irrigation and fertilization of the turf situated on the golf courses; (f) disturbance and loss of privacy resulting from golf cart traffic and golfers; and (g) noise, vehicular and pedestrian traffic, congestion and loss of privacy as a result of tournaments held on the golf courses. Additionally, each Owner acknowledges that pesticides and chemicals may be applied to the golf courses throughout the year and that reclaimed water, treated waste water or other sources of non -potable water may be used for irrigation of the golf courses. Each Owner expressly assumes such detriments and risks and agrees that neither Declarant, the Club Owner or managers of the golf courses, nor any of their successors or assigns shall be liable to the Owner or anyone claiming any loss or damage, including, without limitation, indirect, special or consequential loss or damage arising from personal injury, destruction of property, trespass or any other alleged wrong or entitlement to remedy based upon, due to, arising from or otherwise related to the proximity of the Owner's Lot or Residence to the golf courses, including, without limitation, any claim arising in whole or in part from the negligence of Declarant, the managers or Club Owner of the golf courses, or their successors or assigns. Each Owner hereby agrees to indemnify and hold harmless Declarant and the Club Owners, managers of the golf courses, and their respective successors and assigns, against any and all such claims by Owner's Invitees. By acceptance of a deed to a Lot, each Owner specifically covenants and agrees that he or she will specifically disclose the existence and contents of this Section 5.21 to his or her subsequent transferees. 5.22 PARKING: Vehicles shall not be parked anywhere in the Project except in areas designed and established for the parking of passenger motor vehicles ("Parking Areas") or wholly within garages. Parking is permitted on streets within designated areas only, except that there shall be no parking at any time on any cul-de-sac in the Project which has a radius of less than forty-two (42) feet and no parking within areas posted as "No Parking". All Parking Areas shall be used solely for the parking of motor vehicles used for personal transportation. No boat, trailer, camper, commercial vehicle, mobile home, recreational vehicle or any inoperable vehicle shall be parked or stored in any Parking Area. Recreational vehicles or trailer -hauled boats may not parked within the Project except entirely within a recreational vehicle parking area designated and maintained by the Association unless otherwise provided for in the Rules. Garage doors shall remain closed, except when a vehicle is entering or leaving the garage. Garages shall be kept sufficiently clear so as to permit parking of the number of vehicles for which the garage was designed. A recreational vehicle or trailer -hauled boat may be parked within a garage only if there is additional space after parking all vehicles belonging to residents 17 ::ODMATCDOCSTORTLAND\229786\7 of that Lot in the garage. With the exception of garages, no part of the Common Area or any driveway on any Lot shall be used for repair, construction or reconstruction of any vehicle. No resident in the Project shall park in any Parking Area designated as "guest parking". As long as applicable ordinances and laws are observed, any vehicle which is in violation of this Declaration may be removed. In addition, parking restrictions may be added or removed for temporary periods at the discretion of the Board to accommodate the planned activities of individual Owners. If the provisions of this Declaration regarding boats, trailers, campers, commercial vehicles, mobile homes, or recreational vehicles are ever amended to be less restrictive than the applicable County Zoning Ordinance, the ordinance shall prevail over those provisions of this Declaration. 5.23 RENTAL OF LOTS: Unless an Owner is prohibited from leasing or renting his or her Lot by the terms of another document, an Owner shall be entitled to rent or lease his or her Lot if (i) there is a written rental or lease agreement specifying that the tenant shall be subject to all provisions of the Project Documents and a failure to comply with any provision of the Project Documents shall constitute a default under the agreement; (ii) the period of the rental or lease is not less than six (6) months; (iii) the Owner gives notice of the tenancy to the Board and has otherwise complied with the terms of the Project Documents; (iv) the Owner gives each tenant a copy of the Project Documents; and (v) the Lot is rented to not more than one (1) family at anytime. Upon satisfaction of the foregoing conditions, all rights to the use and enjoyment of the Common Area shall be exercised by the tenant rather than by the Owner of the leased or rented Lot; however, the Owner shall not be relieved of the obligations and duties imposed by this Declaration. 5.24 RULES: The Board may promulgate rules concerning the use of the Project by Owners and their guests. The Board shall have the right to limit the number of an Owner's guests that may use any recreational facilities. Neither an Owner nor its Invitees shall violate any provision of this Declaration, the Bylaws or the Rules as the same may be amended from time to time. 5.25 SIGNS: All signs displayed in the Project shall be attractive and compatible with the design of the Project and shall comply with all applicable local ordinances. The only signs of any kind which may be displayed to the public view on or from any Lot or the Common Area shall be as follows: 5.25.1 Approved By Board: Signs, posters and notices approved by the Board or specified in the Rules or in this Declaration may be posted in locations designated by the Board; 5.25.2 Declarants: Signs may be displayed by Declarant on Common Area, unsold Lots or Residences, as Declarant deems appropriate, advertising Lots and/or Residences owned by Declarant for sale or rent; 5.25.3 Golf Club Crossing Signs: Appropriate signs may be displayed by the Club Owners to identify, warn and otherwise control crossings of streets and roads within the Project by golf carts and pedestrian golfers; 18 ::ODMA\PCDOCS\PORTLAND\229786\7 5.25.4 Golf Club Identification: Permanent and temporary signs may be displayed by the Club Owners to identify the Golf Clubs and provide appropriate directions to the Golf Club Property and/or golf courses for motorists and pedestrians; 5.25.5 Golf Course Boundaries: Permanent and temporary markers may be displayed by the Club Owners to identify the boundaries of the golf courses; 5.25.6 Legal Proceedings: Signs required by legal proceedings may be displayed; 5.25.7 Project Identification: Appropriate signs may be displayed by the Association to identify the Project; 5.25.8 Sale or Rent: One (1) sign which conforms to the signage program standards set forth in the Rules or the Architectural and Landscape Design Guidelines may be placed on a Lot advertising the Lot for sale or rent; and 5.25.9 Traffic Signs: Appropriate signs may be displayed*by the Association to regulate and control vehicular, pedestrian, and other traffic within the Project. 5.26 STORAGE OF WASTE MATERIALS: All garbage, trash and accumulated waste material shall be placed in appropriate covered trash containers, which may be placed on Common Area or where visible only on the night before and the day that pick-up is to occur. 5.27 TRAFFIC REGULATIONS: The Association may promulgate, administer and enforce reasonable rules and regulations governing vehicular and pedestrian traffic, including reasonable safety measures and speed limits; provided however that the Association may not regulate, beyond that which is necessary for safety reasons, or prohibit golf cart access to streets within the Project. Vehicular and pedestrian traffic includes but is not limited to motor vehicles, trailers, golf carts, bicycles, skateboards and roller skates. The Association shall be entitled to enforce such provisions by establishing such enforcement procedures as it deems appropriate, including levying fines for the violation thereof, as long as such procedures are consistent with the Project Documents. Only drivers licensed to operate motor vehicles shall operate any type of motor vehicle within the Project. All vehicles of any kind which are operated within the Project shall be operated in a careful, prudent, safe and quiet manner and with due consideration for the rights of all Owners and their Invitees and the golf courses, the Club Owners and their Invitees. 5.28 USE AND OCCUPANCY OF RESIDENCES: Each Lot shall be used solely for residential purposes. No Residence shall be permanently occupied by any more than two (2) persons per bedroom. No Owner may permit or cause anything to be done or kept upon, in or about his or her Lot which might obstruct or interfere with the rights of other Owners or which would be noxious, harmful or unreasonably offensive to other Owners. Each Owner shall comply with all of the requirements of all federal, state and local governmental authorities, and all laws, ordinances, rules and regulations applicable to his or her Lot. 19 ::ODMA\PCDOCS\PORTLAND\229786\7 5.29 USE OF COMMON AREA: All use of Common Area is subject to the Rules. All persons residing within the Project may enjoy the use of all facilities in the Common Area as long as they abide by the terms of the Project Documents. There shall be no obstruction of any part of the Common Area. Nothing shall be stored or kept in the Common Area without the prior consent of the Board. Nothing shall be done or kept in the Common Area which will increase the rate of insurance on the Common Area without the prior consent of the Board. No Owner shall permit anything to be physically done or kept in the Common Area or any other part of the Project which might result in the cancellation of insurance on any part of the Common Area, which would interfere with rights of other Owners, or which would be a nuisance, noxious, harmful or unreasonably offensive to other Owners. No waste shall be committed in the Common Area. 5.29.1 Conveyance of Property by Association. In the event the Association votes to transfer or sell any portion of the Common Area, an equivalent amount of land shall be transferred into the Common Area. 5.29.2 Conveyance of Property to Association: If the Association accepts title to any real property transferred by an Owner, Declarant or either Club Owner as a result of subsequently recorded amended final plats, certificates of correction, lot line adjustments and/or records of survey, the property received shall be Common Area unless the conveyancing deed specifically provides otherwise. 5.30 USES IN SURROUNDING AREAS: In addition to tournaments within the Project, areas within and surrounding the Project may be subject to a wide variety of uses, including but not limited to agricultural, viticultural, commercial, retail, hotel, bad and breakfast, and winery purposes. Each Owner, by acceptance of a deed to a Lot, expressly waives for himself or herself and his or her successors in interest and assigns any and all claims against owners of land adjacent to the Project, including Declarant and all of its general and limited partners, and their successors in interest and assigns which arise from landowners' business uses of their lands as long as such uses are legal and are customarily considered ordinary and normal within the scope of the business use. 5.31 WELLS AND SEPTIC TANKS: Except as specifically permitted and approved by Declarant in connection with the conveyance of a Lot, no well for water shall be constructed or installed on any Lot. No septic tank shall be constructed or installed on any Lot. Declarant has no express or implied obligation to permit the installation of any well and approving the installation of any well or wells does not impose any express or implied obligation on Declarant to approve the installation of any other well. 5.32 WINDOW COVERINGS: No foil or other reflective materials shall be used on any windows for sunscreens, blinds, shades, or other purposes. No window -mounted heating or air-conditioning unit is permitted. 5.33 RECLAIMED WATER: Some of the irrigation lines installed by Declarant for the Common Area may provide for the use of reclaimed water which may produce an offensive 20 ::ODMA\PCDOCS\PORTLAND\229786\7 odor. The Association shall be permitted to use any such reclaimed water to irrigate Common Area landscaping. ARTICLE VI MAINTENANCE, REPAIR AND RECONSTRUCTION OF IMPROVEMENTS 6.1 MAINTENANCE OF COMMON AREA: The Association shall be responsible for the maintenance, repair, replacement, management, operation, painting and upkeep of Common Area and Improvements thereon. The Association shall keep the Common Area and Improvements thereon in good condition and repair, provide for all necessary services and cause all acts to be done which may be necessary or proper to assure the maintenance of the Common Area in a first class condition. Notwithstanding the provisions of this Section 6.1 or of Section 6.8, the Association shall not be obligated to continue to maintain, repair or replace any Improvement whose maintenance, repair or replacement is undertaken subsequent to the recording of this Declaration by any Landscaping and Lighting District, Community Service Area, or other district, governmental or quasi -governmental entity or utility company. 6.1.1 Streets and Street Lighting: All streets and street lighting within the Project shall be private and, as Common Area Improvements, shall be operated, maintained, repaired and replaced, as necessary, by the Association. The identification from time to time of some individual components of Common Area Improvements in this Declaration is the result of requirements imposed by the County and shall not be construed as limiting the type, nature or extent of other Common Area Improvements within the Project. 6.1.2 Landscape Strip: The landscape strip as shown on the Plat is a landscaped area adjacent to portions of the perimeter boundary of the Project ("Landscape Strip"). The Landscape Strip shall be maintained by the Association as a "buffer zone". Permanent structures are prohibited within the Landscape Strip. No trespassing signs shall be posted and maintained at frequent intervals to prevent the Landscape Strip from being used for recreational or other purposes. 6.1.3 Slope Control: The Association shall inspect all slopes and related facilities on Common Area at least once annually prior to October 1 of each year and shall repair any mass soil movement or erosion in a timely manner. 6.1.4 Street Sweeping: The Association shall sweep all streets within the Project on a regular schedule to minimize trash, oil, grease, and other toxic urban runoff to watercourses. 6.1.5 Trees: The Association shall maintain the trees on the Common Area in accordance with any requirement of the Final Plat and/or any conditions of any land use approvals issued in connection with the development of the Project. 6.1.6 Improvement And Community Services Districts: Notwithstanding any other provision contained herein, the Association shall not be obligated to maintain nor have the 21 ::ODMA\PCDOCS\PORTLAND\229786\7 right to: control the use, repair, or replace any landscaping, irrigation systems, drainage facilities, waste water treatment facilities, irrigation lakes and/or water features, sanitary sewer systems improvements or geological hazards which are maintained, repaired or replaced by any Geological Hazard Abatement District, Landscaping and Lighting District or other District (including Community Services Districts) and/or governmental or quasi governmental entity. 6.2 ALTERATIONS TO COMMON AREA: 6.2.1 Approval: Only the Association or Declarant shall construct, reconstruct, refinish or alter any Improvement situated upon the Common Area. A proposal for any construction of or alteration, maintenance or repair to an Improvement may be made at any meeting. A proposal may be adopted by the Board, subject to the limitations contained in the Bylaws. 6.2.2 Funding: Expenditures for maintenance, repair or replacement of an existing capital Improvement for which reserves have been collected may be made from the Reserve Account. The Board may levy a Special Assessment to fund any construction, alteration, repair or maintenance of an Improvement for which no reserve has been collected or to alter existing Improvements. 6.2.3 Joint Development and Maintenance of the Common Areas: The Declarant and/or the Association may enter into an Agreement or Agreements with the owners of the Golf Clubs for the joint installation and/or maintenance of any of the Common Area Improvements. 6.3 MAINTENANCE OF LOTS AND RESIDENCES: Except as otherwise specifically provided in this Declaration, each Owner shall maintain and care for his or her Lot, Residence, and all other Improvements located in or on his or her Lot in a manner consistent with the standards established by the Project Documents and other well maintained residential areas in the vicinity of the Project. Special architectural design standards may be established in the Rules. Each Owner shall regularly clear all storm drainage inlets and maintain the capacity and flow of all storm drainage Improvements and drainage swales situated on the Owner's Lot. The finished ground surface of each Lot shall be maintained to slope away from all structures at a minimum five percent (5%) grade for at least five (5) feet or to a drainage swale located at least two and one-half (2 '/Z) feet from all structures. Landscaping may not be installed in any manner which interferes with the storm drainage improvements or which traps or ponds water adjacent to a Residence. Any Lot upon which a Residence has not yet been constructed shall be maintained by the Owner of the Lot in accordance with the Rules adopted by the Association for maintenance of vacant, improved Lots. The Association shall maintain, repair and replace sidewalk pavements (if any) on all Lots. If the pavement is damaged by the Owner of the Lot or his or her Invitees, the Association shall repair it at the expense of the Lot Owner. The Association shall maintain, repair and replace all exterior light fixtures and bulbs connected to the Association's electric service; provided, however, each Owner shall replace any inoperable light bulb in any such light fixture located on that Owner's Lot within eight (8) feet of ground level. 22 ::ODMA\PCDOCS\PORTLAND\229786\7 6.4 ALTERATIONS TO LOTS AND RESIDENCES: Owners may alter or remodel the interiors of their Residences if the alterations do not impair the structural integrity of the Residence and if the Owner complies with all laws and ordinances regarding alterations and remodeling. Any proposals for alterations, additions or other Improvements on Lots or to the exteriors of Residences shall be made in accordance with the provisions of Article XII. 6.5 MAINTENANCE AND REPAIR OF FENCES: 6.5.1 Fences Adjacent to Golf Clubs: All fences situated on the common boundary of a Lot and either Golf Club shall be maintained by the Owner of the Lot at the sole cost and expense of the Owner. All fences situated on the common boundary of Common Area and either Golf Club shall be maintained by the Association at the sole cost and expense of the Association. 6.5.2 Fences Separating Common Area and Lots: Each fence which separates a Lot from Common Areas shall be maintained, repaired and replaced by the Association; provided however, if the side of the fence which faces a Lot is inaccessible by the Association, the Owner of the Lot shall maintain that fence surface. Maintenance shall include refinishing the exterior surface of the fence if that surface was previously finished with paint or stain. 6.6 LANDSCAPING: All landscaping in the Project shall be maintained and cared for in a manner consistent with the standards of design and quality as originally established by Declarant and in a condition comparable to that of other well maintained residential areas in the vicinity of the Project. All landscaping shall be maintained in a neat and orderly condition. Any weeds or diseased or dead lawn, trees, ground cover or shrubbery shall be removed and replaced. All lawn areas shall be neatly mowed and trees and shrubs shall be neatly trimmed. Other specific restrictions on landscaping may be established in the Rules. 6.6.1 Association: The Association shall be responsible for all landscaping located on Common Area. The Association shall also irrigate, maintain and replace landscaping located within any public right-of-way described in a Declaration of Annexation. 6.6.2 Owners: Each Owner shall be responsible for all landscaping located within that Owner's Lot. If landscaping within Lots is not installed by Declarant, each Owner shall install permanent landscaping within his or her Lot prior to obtaining the occupancy permit, unless the time period is lengthened in the Architectural and Landscape Design Guidelines. Each Owner shall install and maintain landscaping and any necessary engineering measures to maintain slope stability in order to prevent mass soil movement and erosion. Any mass soil movement or erosion which occurs on a Lot shall be promptly repaired by the Owner of the Lot. Unless the responsibility is assumed by the Association, each Owner shall also maintain the landscaping and street trees(s) within the right of way between the back of the nearest street curb and the Owner's Lot line. Maintenance of street trees shall include pruning as appropriate. 6.7 RIGHT OF MAINTENANCE AND ENTRY: 23 ::ODMA\PCDOCS\PORTLAND\229786\7 6.7.1 By Association: If an Owner fails to perform maintenance and/or repair which that Owner is obligated to perform pursuant to this Declaration, and if the Association determines, after Notice and Hearing given pursuant to the provisions of the Bylaws, that such maintenance and/or repair is necessary to preserve the attractiveness, quality, nature and/or value of the Project, the Association may cause such maintenance and/or repair to be performed. The costs of such maintenance and/or repair shall be charged to the Owner of the Lot as a Reimbursement Assessment. In order to effectuate the provisions of this Declaration, the Association may enter any Lot whenever entry is necessary in connection with the performance of any maintenance or construction which the Association is authorized to undertake. Entry within a Lot shall be made with as little inconvenience to an Owner as practicable and only after reasonable advance written notice of not less than forty-eight (48) hours, except in emergency situations. 6.7.2 By Golf Club: If either the Association or an Owner ("Defaulting Party") fails to maintain any landscaping or fencing situated adjacent to either Golf Club and within twenty (20) feet of any portion of either golf course, the affected Club Owner shall have the right, but not the duty, to maintain the landscaping or fencing at the sole cost and expense of the Defaulting Party. If the affected Club Owner desires to perform any such maintenance authorized by the preceding sentence, the affected Club Owner shall first notify the Defaulting Party in writing and provide the Defaulting Party with at least thirty (30) days from the date of the notice to perform such maintenance. If the Defaulting Party fails to commence and complete such maintenance within said thirty (30) day period, the affected Club Owner shall have the right to enter the Lot or Common Area on which the maintenance is required during reasonable business hours and perform such maintenance. Written notice of the costs incurred by the affected Club Owner in performing such maintenance and/or repair shall be given to the Defaulting Party who shall have ten (10) days to reimburse the affected Club Owner in full. The affected Club Owner shall have the right to deduct any charges which remain unpaid for longer than thirty (30) days from its obligation to the Association described in Section 4.4.6 of this Declaration. The Association may then assess any such charges which are attributable to a specific Owner against that Owner and the Owner's Lot as a Reimbursement Assessment. 6.8 DAMAGE AND DESTRUCTION: The term "restore" shall mean repairing, rebuilding or reconstructing a damaged Common Area Improvement to substantially the same condition and appearance in which it existed prior to fire or other casualty damage. If fire or other casualty damage extends to any Common Area which is so insured, the Association shall proceed with the filing and adjustment of all claims arising under the existing insurance policies. The insurance proceeds shall be paid to and held by the Association. 6.8.1 Bids: Whenever restoration is to be performed pursuant to this Section 6.8, the Board shall obtain such bids from responsible licensed contractors to restore the damaged Common Area as the Board deems reasonable; and the Board, on behalf of the Association, shall contract with the contractor whose bid the Board deems to be the most reasonable. 24 ::ODMA\PCDOCS\PORTLAND\229786\7 6.8.2 Sufficient Proceeds: The costs of restoration of the damaged Common Area shall be funded pursuant to the provisions and in the priority established by this subsection 6.8.2. A lower priority procedure shall be utilized only if the aggregate amount of funds then available pursuant to the procedures of higher priority are insufficient to restore the damaged Common Area. The following funds and procedures shall be utilized: 1. The first priority shall be any insurance proceeds paid to the Association under existing insurance policies. 2. The second priority shall be all Reserve Account funds designated for the repair or replacement of the capital Improvement(s) which has been damaged. 3. The third priority shall be funds raised by a Special Assessment against all Owners levied by the Board up to the maximum amount permitted, if any, without the approval of the Members. 4. The fourth priority shall be any funds raised by a Special Assessment against Owners levied by the Board pursuant to a vote of the Members. 6.8.3 Additional Special Assessment: If the total funds available to restore the damaged Common Area pursuant to the first three priorities described in subsection 6.8.2 is insufficient to restore the damaged Common Area, then a special meeting of the Members shall be called for the purpose of voting whether to impose an additional Special Assessment and deciding upon the amount thereof. The Board shall then contract for the restoration of the damaged Common Area as described above, making use of whatever funds are then available to the Association. 6.9 DAMAGE OR DESTRUCTION TO RESIDENCES AND/OR LOTS: If all or any portion of a Lot or Residence is damaged by fire or other casualty, the Owner shall immediately perform whatever work is necessary for the Lot to be clean and safe. Thereafter, the Owner shall either (i) restore the damaged Improvements or (ii) remove all damaged Improvements, including foundations, and maintain the Lot in a clean and safe condition. Any restoration under (i) must be performed so that the Improvements are in substantially the same condition in which they existed prior to the damage, unless the Owner complies with the provisions of Article XII. The Owner must commence such work within six (6) months from the date the damage first occurs and must complete the work within one (1) year thereafter. 6.10 CONDEMNATION OF COMMON AREA: If all or any portion of the Common Area is taken for any public or quasi -public use under any statute, by right of eminent domain or by purchase in lieu of eminent domain, the entire award shall be deposited into the Current Operation Account until distributed. The Association shall distribute such funds proportionately to all Owners as their interests appear according to the respective fair market values of their Lots at the time of condemnation. Such value shall be determined by an independent appraisal made by an independent real estate appraiser. Any appraiser so chosen by the Board shall be a certified Member of the Appraisal Institute or the equivalent thereof. The Association shall represent the interests of all Owners. 25 ::ODMA\PCDOCS\PORTLAND\229786\7 ARTICLE VII FUNDS AND ASSESSMENTS 7.1 COVENANTS TO PAY: Declarant and each Owner covenant and agree to pay to the Association the Assessments and any Additional Charges levied pursuant to this Article VII. 7.1.1 Liability for Payment: The obligation to pay Assessments shall run with the land so that each successive record Owner of a Lot shall in turn become liable to pay all such Assessments. No Owner may waive or otherwise escape personal liability for Assessments or release the Lot owned by the Owner from the liens and charges hereof by non-use of the Common Area, abandonment of the Lot or any other attempt to renounce rights in the Common Area or the facilities or services within the Project. Each Assessment shall constitute a separate Assessment and shall also be a separate, distinct and personal obligation of the Owner of the Lot at the time when the Assessment was levied and shall bind each Owner's heirs, devisees, personal representatives and assigns. Any Assessment not paid when due is delinquent. The personal obligation of an Owner for delinquent Assessments shall not pass to a successive Owner unless the personal obligation is expressly assumed by the successive Owner. No such assumption of personal liability by a successor Owner (including a contract purchaser under an installment land contract) shall relieve any Owner from personal liability for delinquent Assessments. After an Owner transfers fee title of record to his or her Lot, the transferring Owner shall not be liable for any charge thereafter levied against the Lot. 7.1.2 Funds Held in Trust: The Assessments collected by the Association shall be held by the Association for and on behalf of each Owner and shall be used solely for the operation, care and maintenance of the Project as provided in this Declaration. 7.1.3 Offsets: No offsets against any Assessment shall be permitted for any reason, including without limitation, any claim that the Association is not properly discharging its duties. 7.2 REGULAR ASSESSMENTS: 7.2.1 Payment of Regular Assessment: Regular Assessments for each fiscal year shall be established when the Board approves the Budget for that fiscal year. Regular Assessments shall be levied on a fiscal year basis; however, each Owner shall be entitled to pay the Regular Assessment in twelve (12) equal monthly installments, one installment payable on the first day of each calendar month during the fiscal year, as long as the Owner is not delinquent in the payment of any monthly installment. If an Owner fails to pay any monthly installment by the fifteenth (15th) day of the month, that Owner's right to continue to pay the Regular Assessment in monthly installments shall immediately terminate for that fiscal year. Regular Assessments shall commence for all Lots in each Phase on the first day of the first month following the month in which the first Lot in that Phase is conveyed to an Owner and may commence prior to that date at the option of Declarant. 26 ::ODMA\PCDOCS\PORTLAND\229786\7 7.2.2 Allocation of Regular Assessment: The total amount of the Association's anticipated revenue attributable to Regular Assessments as reflected in the Budget(s) for that fiscal year shall be allocated as provided in this subsection 7.2.2. (a) Project Budget: (i) Portion Paid By All Lots: The total amount of the Association's anticipated revenue attributable to Regular Assessments as reflected in the Project Budget for that fiscal year, shall be allocated equally among all Lots in the Project. After annexation of each Phase, the allocation and assessment of the Project Budget Costs, as that term is defined in subsection 7.6.1(a), in the Project Budget shall be reallocated equally among all Lots in the Project, including those in the annexed Additional Property. After a new Phase has been annexed, the Board shall approve a Project Budget for the remainder of the current fiscal year for use upon the commencement of Regular Assessments against Lots in the new Phase. 7.2.3 Exemptions from Regular Assessment: Notwithstanding the provisions of Section 7.2, the Board shall exempt each Owner of a Lot which satisfies paragraph (a), below, and may exempt all Owners if paragraph (b), below, is satisfied, from the payment of a portion of the Regular Assessment levied against that Lot as described in those paragraphs. (a) Lots: An Owner of a Lot is exempt from payment of that portion of the Regular Assessment which is allocated for defraying operating expenses and reserves directly attributable to the existence and use of any landscaping situated on his or her Lot which the Association is responsible for maintaining until the landscaping is complete. (b) Other Common Area: Each Owner may be exempted from payment of that portion of the Regular Assessment which is allocated for defraying operating expenses and reserves directly attributable to the existence and use of a common facility (including landscaping) that is not complete at the time Regular Assessments commence until the first to occur of the following events: (i) a notice of completion of the common facility is recorded or (ii) the common facility has been placed into use. 7.2.4 Non -Waiver of Assessments: If before the expiration of any fiscal year the Association fails to fix Regular Assessments for the next fiscal year, the Regular Assessment established for the preceding year shall continue until a new Regular Assessment is fixed. 7.3 SPECIAL ASSESSMENTS: Subject to any limitations contained in the Articles or Bylaws, Special Assessments may be levied in addition to Regular Assessments for (i) constructing capital Improvements, (ii) correcting an inadequacy in the Current Operation Account, (iii) defraying, in whole or in part, the cost of any construction, reconstruction, unexpected repair or replacement of Improvements in the Common Area, or (iv) paying for such other matters as the Board may deem appropriate for the Project. Special Assessments shall be levied in the same manner as Regular Assessments. 7.4 REIMBURSEMENT ASSESSMENTS: The Association shall levy a Reimbursement Assessment against any Owner and the Owner's Lot to reimburse the 27 ::ODMA\PCDOCS\PORTLAND\229786\7 Association for the costs of repairing damage caused by an Owner or an Owner's Invitee or if a failure to comply with the Project Documents has (i) necessitated an expenditure of monies, including attorneys' fees, by the Association to bring the Owner or the Owner's Lot into compliance or (ii) resulted in the imposition of a fine or penalty. A Reimbursement Assessment shall be due and payable to the Association when levied. A Reimbursement Assessment shall not be levied by the Association until Notice and Hearing has been given in accordance with the Bylaws. Notwithstanding any other provision in the Project Documents expressed or implied to the contrary, Reimbursement Assessments are Assessments but they may not be enforced by any lien rights provided in this Declaration. 7.5 ACCOUNTS: 7.5.1 Types of Accounts: Assessments collected by the Association shall be deposited into at least two (2) separate accounts with a responsible financial institution, which accounts shall be clearly designated as (i) the Project Current Operation Account and (ii) the Project Reserve Account. The Board shall deposit those portions of the assessments collected for current maintenance and operation into the Current Operation Account and shall deposit those portions of the Assessments collected as reserves for replacement and deferred maintenance of major components which the Association is obligated to repair into the Reserve Account. 7.5.2 Reserve Account: Withdrawal of funds from the Reserve Account shall require the signatures of either two (2) Directors or, one (1) Director and one (1) Officer of the Association who is not a Director. The Declarant shall establish the Reserve Account in the name of the Association pursuant to ORS 94.595. The Association shall maintain such Reserve Account and shall conduct the required reserve study in accordance with ORS 94.595. (a) The Association shall pay out of the Reserve Account only those costs that are attributable to the maintenance, repair or replacement of capital Improvements for which reserves have been collected and held. The Board shall not expend funds collected for the Reserve Account for any purpose other than the repair, restoration, replacement, or maintenance of, or litigation involving the repair, restoration or maintenance of, major components which the Association is obligated to repair, restore, replace, or maintain and for which the Reserve Account was established. (b) Notwithstanding paragraph (a), above, and so long as permitted by applicable law, the Board may authorize the temporary transfer of money from the Reserve Account to the Current Operation Account to meet short-term cash-flow requirements or other expenses. The transferred funds shall be restored to the Reserve Account within three (3) years of the date of the initial transfer, unless the Board makes a finding supported by documentation that a delay would be in the best interests of the Project. If the Board makes such a finding, the Board may delay the restoration until the time which the Board reasonably determines is necessary. The Board shall exercise prudent fiscal management in delaying restoration of these funds and in restoring the expended funds to the Reserve Account; and if necessary, the Board shall levy a Special Assessment to recover the full amount of the expended funds within the time limits required by this Declaration. 28 ::ODMA\PCDOCS\PORTLAND\229786\7 7.5.3 Current Operation Account: All other costs properly payable by the Association shall be paid from the Current Operation Account. 7.6 BUDGET. FINANCIAL STATEMENTS. REPORTS AND STUDIES: 7.6.1 Preparation of Operating Budget: Regardless of the number of Members or the amount of assets of the Association, each year the Board shall prepare and approve one or more pro forma operating Budgets. (a) Project Budget: A budget shall be prepared for the Association ("Project Budget") which shall include all costs and reserves for the maintenance and operating expenses of the Association ("Project Budget Costs"). The Project Budget Costs shall be allocated as provided in Section 6.2.2, above. (b) All Budgets: The Project Budget shall also include all of the following, unless they are not applicable: (i) estimated revenue and expenses on an accrual basis; (ii) a statement as to whether the Board has determined or anticipates that the levy of one or more Special Assessments will be required to repair, replace, or restore any major component or to provide adequate reserves therefor; (iii) a general statement setting forth the procedures used by the Board in the calculation and establishment of reserves to defray the future repair, replacement or additions to those major components that the Association is obligated to maintain; and (iv) a summary of the Association's reserves. The summary of the Association's reserves shall not be admissible in evidence to show improper financial management of the Association; provided that other relevant and competent evidence of the financial condition of the Association is not made admissible by this provision. The summary of the Association's reserves shall be printed in bold type and shall include all of the following: A. the current estimated replacement cost, estimated remaining life, and estimated useful life of each major component; and B. if applicable, as of the end of the fiscal year for which the study is prepared: i) the current estimate of the amount of cash reserves necessary to repair, replace, restore or maintain the major components; and ii) the current amount of accumulated cash reserves actually set aside to repair, replace, restore, or maintain major components; and 29 ::ODMA\PCDOCS\PORTLAND\229786\7 C. the percentage that the amount determined for purposes of clause (i) of subparagraph B is of the amount determined for purposes of clause (ii) of subparagraph B. 7.6.2 Distribution of Budget: The Budget shall be made available to each Member. Not less than forty-five (45) and not more than sixty (60) days prior to the beginning of the fiscal year, the Board shall distribute either a copy or a summary of the Budget to all Owners. If a summary of the Budget is distributed, a written notice must accompany it. The written notice must be in at least 10 -point bold type on the front page of the summary. It shall state that the Budget is available at the Association's office (or at another suitable location within the Project) and that copies will be provided upon request and at the expense of the Association. If a Member requests a copy of the Budget, the Board shall provide a copy to the Member by first class United States mail within five (5) days after the Association's receipt of the request. 7.6.3 Annual Report: Within one hundred twenty (120) days after the close of each fiscal year, the Board shall cause to be distributed to each Member an annual report consisting of the following: (i) a balance sheet as of the end of the fiscal year; (ii) an operating (income) statement for the fiscal year; (iii) a statement of changes in financial position for the fiscal year; and (iv) any other information required to be reported by applicable law. If the report is not prepared by an independent accountant, it shall be accompanied by the certificate of an authorized officer of the Association stating that the statements were prepared without independent audit or review from the books and records of the Association. Any annual report prepared for a fiscal year in which the gross income to the Association exceeds seventy-five thousand dollars ($75,000.00) shall be reviewed in accordance with generally accepted accounting principles by a licensed Oregon accountant and a copy of such review shall be distributed as part of the annual report. 7.6.4 Quarterly Reconciliation: At least quarterly, the Board shall: (i) cause a current reconciliation of the Association's Operating Account(s) to be made and review the same; (ii) cause a current reconciliation of the Association's Reserve Account to be made and review the same; (iii) review the current year's actual reserve revenues and expenses compared to the current year's Budget; (iv) review the most current account statements prepared by the financial institution where the Association has its Operation and Reserve Accounts; and (v) review an income and expense statement for the Association's Operation and Reserve Accounts. 7.6.5 Notice of Increased Assessments: The Board shall provide notice by first-class, United States mail to the Owners of any increase in Regular Assessments or Special Assessments not less than thirty (30) and not more than sixty (60) days prior to the increased Assessment becoming due. 7.6.6 Statement of Outstanding Charges: Within ten (10) days of a written request by an Owner, the Association shall provide to the Owner a written statement which sets forth the amounts of delinquent Assessments, penalties, attorneys' fees and other charges against that Owner's Lot. A charge for the statement may be made by the Association, not to exceed the reasonable costs of preparation and reproduction of the statement. 30 ::ODMA\PCDOCS\PORTLAND\229786\7 7.6.7 Initial Six Month Statement: The Board shall prepare a balance sheet and an operating statement for the period ending on the last day of the sixth (6th) month from the date Regular Assessments were initially levied and distribute them to each Member within sixty (60) days after that date. The operating statement shall include a schedule of Assessments received and receivable, identified by the Lot number and the name of the Member(s) assessed. 7.6.8 Schedule of Monetary Penalties: If the Board adopts a policy imposing any monetary penalty on or charging any fee to any Member for a violation of the Project Documents by that Member or his or her Invitee, the Board shall adopt a schedule of the monetary penalties that may be assessed for those violations. The penalties must be consistent with the Project Documents. A copy of the schedule shall be personally delivered or mailed by first-class, United States mail, postage prepaid, to each Member by the Board. Each time the schedule is modified, the Board shall again deliver a copy to each Member, either personally or by first-class, United States mail, postage prepaid. 7.7 ENFORCEMENT OF ASSESSMENTS: The Board shall annually distribute, not more than sixty (60) and not less than forty-five (45) days prior to the beginning of the fiscal year, a statement of the Association's policies and practices in enforcing its remedies against Owners for defaults in the payment of Regular and Special Assessments, including the recording, and foreclosing of liens against Owners' Lots. In addition to all other remedies provided by law, the Association, or its authorized representative, may enforce the obligations of the Owners to pay each Assessment provided for in this Declaration in any manner provided by law or by either or both of the following procedures: 7.7.1 By Suit: The Association may commence and maintain a suit at law against any Owner personally obligated to pay a delinquent Assessment. The suit shall be maintained in the name of the Association. Any judgment rendered in any action shall include the amount of the delinquency, Additional Charges and any other amounts as the court may award. A proceeding to recover a judgment for unpaid Assessments may be maintained without the necessity of foreclosing or waiving the lien established herein. 7.7.2 By Lien: The Association or a trustee nominated by the Association may commence and maintain proceedings to establish and/or foreclose Assessment liens. The provisions regarding the attachment, notice, recordation and duration of liens established on real property under ORS 94.704 through 94.716, as the same may be amended, shall govern the Association's lien(s). The lien may be foreclosed as provided under ORS Chapter 88. The Association, through its duly authorized agents, may bid on the Lot at such foreclosure sale, and may acquire and hold lease, mortgage and/or convey the Lot. 7.7.3 Additional Charges: In addition to any other amounts due or any other relief or remedy obtained against an Owner who is delinquent in the payment of any Assessments, each Owner agrees to pay such additional costs, fees, charges and expenditures ("Additional Charges") as the Association may incur or levy in the process of collecting from that Owner monies due and delinquent. All Additional Charges shall be included in any judgment in any suit or action brought to enforce collection of delinquent assessments or may be 31 ::ODMA\PCDOCS\PORTLAND\229786\7 levied against a Lot as a Reimbursement Assessment. Additional Charges shall include, but not be limited to, the following: (a) Attorneys' Fees: Reasonable attorneys' fees and costs incurred in the event an attorney is employed to collect any Assessment or sum due, whether by suit or otherwise; (b) Late Charges: A late charge in an amount to be fixed by the Board in accordance with the current laws to compensate the Association for additional collection costs incurred in the event any assessment or other sum is not paid when due or within any "grace" period established by law; (c) Costs of Suit: Costs of suit and court costs incurred as are allowed by the court; (d) Interest: Interest on the delinquent Assessment and Additional Charges at a rate fixed by the Board in accordance with the then current laws of the State of Oregon; and (e) Other: Any such other additional costs that the Association may incur in the process of collecting delinquent Assessments or sums. 7.7.4 Certificate of Satisfaction of Lien: Upon payment or other satisfaction of a delinquent Assessment for which a notice of intent to foreclose was recorded, the Association shall record a certificate stating the satisfaction and release of the Assessment lien. 7.8 SUBORDINATION OF LIEN: Notwithstanding any provision to the contrary, the liens for Assessments created pursuant to this Declaration shall be subject and subordinate to and shall not affect the rights of the holder of a First Mortgage made in good faith and for value. Upon the foreclosure of any First Mortgage on a Lot, any lien for Assessments which became due prior to such foreclosure shall be extinguished; provided, however, that after such foreclosure there shall be a lien on the interest of the purchaser at the foreclosure sale to secure all Assessments, whether Regular or Special, charged to such Lot after the date of such foreclosure sale, which lien shall have the same effect and shall be enforced in the same manner as provided herein. For purposes of this Section, a Mortgage may be given in good faith or for value even though the Mortgagee has constructive or actual knowledge of the Assessment lien provisions of this Declaration. ARTICLE VIII MEMBERSHIP IN AND DUTIES OF THE ASSOCIATION 8.1 THE ORGANIZATION: The Association shall be organized as a nonprofit mutual benefit corporation. Its affairs shall be governed by and it shall have the powers set forth in the Project Documents. 32 ::ODMA\PCDOCS\PORTLAND\229786\7 8.2 MEMBERSHIP: Each Owner (including Declarant for so long as Declarant is an Owner), by virtue of being an Owner, shall be a Member of the Association. No other person shall be accepted as a Member. 8.2.1 Appurtenant to Ownership: Association membership is appurtenant to and may not be separated from the ownership of a Lot. Membership shall terminate upon termination of Lot ownership. Ownership of a Lot shall be the sole qualification for Association membership. Membership shall not be transferred, pledged or alienated in any way except upon transfer of title to the Owner's Lot (and then only to the transferee of title to such Lot). Any attempt to make a prohibited transfer is void. Membership shall not be related to the use or non- use of the Common Area and may not be renounced. The rights, duties, privileges and obligations of all Members shall be as provided in the Project Documents. 8.2.2 Annexation: Upon the commencement of Regular Assessments in a subsequent Phase, the Owners of the Lots described in the Declaration of Annexation for that Phase shall become Members. 8.3 VOTING: Any action required by law or by the Project Documents to be approved by the Owners, the Members or each class of Members shall be approved, if at all, in accordance with the procedures set forth in the Bylaws. 8.4 RULES: The Board may propose, adopt, amend and repeal Rules appropriate for the management of the Project, which are consistent with the Project Documents. The Rules may also govern the use of the Common Area by Members or their Invitees. After adoption, a copy of the Rules shall be furnished to each Member. Members shall be responsible for distributing the Rules to their tenants. 8.5 DEDICATION AND EASEMENTS: Subject to any applicable provision in the Bylaws, the Board shall have the power to (i) dedicate any of the Common Area to an appropriate public authority for public use or (ii) grant and convey easements and licenses for use and rights of way in, on, over and under any Common Area. 8.6 INSURANCE: The Board shall make every reasonable effort to obtain and maintain the insurance policies as provided in this Section. If the Board is unable to purchase a policy or if the Board believes that the cost of the policy is unreasonable, the Board shall call a special meeting of Members to determine what action to take. The Board shall comply with any resolution concerning insurance coverage adopted at such a meeting. 8.6.1 General Provisions and Limitations: All insurance policies shall be subject to and, where applicable, shall contain the following provisions and limitations: (a) Underwriter: All policies shall be written with a company legally qualified to do business in the State of Oregon and (i) holding no less than a financial performance index of "6" as established by Best's Insurance Reports, (ii) reinsured by a company described in (i), above, or (iii) if such a company is not available, the best rating possible or its equivalent. 33 ::ODMA\PCDOCS\PORTLAND\229786\7 (b) Named Insured: Unless otherwise provided in this Section 8.6, the named insured shall be the Association or its authorized representative, as a trustee for the Members. However, all policies shall be for the benefit of Owners and their Mortgagees, as their interests may appear. (c) Authority to Negotiate: Exclusive authority to adjust losses under policies obtained by the Association shall be vested in the Board; provided, however, that no Mortgagee having an interest in such losses may be prohibited from participating in any settlement negotiations related thereto. (d) Contribution: In no event shall the insurance coverage obtained and maintained by the Association be brought into contribution with insurance purchased by Owners or their Mortgagees. (e) General Provisions: To the extent possible, the Board shall make every reasonable effort to secure insurance policies providing for the following: (i) A waiver of subrogation by the insurer as to any claims against the Board, the manager, if any, of the Project, the Owners and their respective servants, agents and guests; (ii) That the policy will be primary, even if an Owner has other insurance which covers the same loss; (iii) That no policy may be canceled or substantially modified without at least ten (10) days' prior written notice to the Association and to each First Mortgagee listed as a scheduled holder; (iv) An agreed amount endorsement; and (v) An inflation guard endorsement. (f) Term: The period of each policy shall not exceed three (3) years. Any policy for a term greater than one (1) year must permit short rate cancellation by the insureds. (g) Deductible: The policy may contain a reasonable deductible and the amount of the deductible shall be added to the face amount of the policy in determining whether the insurance equals replacement cost. 8.6.2 Types of Coverage: Unless the Association determines otherwise pursuant to Section 8.6, the Board shall obtain at least the following insurance policies in the amounts specified: (a) Property Insurance: A policy or policies of all risk property insurance for all insurable Common Area Improvements, including fixtures and building service equipment, against loss or damage by fire or other casualty, in an amount equal to at least ninety 34 ::ODMA\PCDOCS\PORTLAND\229786\7 percent (90%) of the current full replacement cost (without respect to depreciation) of the Common Area, and exclusive of land, foundations, excavation and other items normally excluded from coverage. A replacement cost endorsement shall be part of the policy. (b) Liability Insurance: A combined single limit policy of public liability insurance in an amount not less than Five Million Dollars ($5,000,000.00) (comprised of a primary policy of at least One Million Dollars ($1,000,000) and an umbrella policy for the remaining amount) covering the Common Area and all damage or injury caused by the negligence of the Association, the Board or any of its agents or the Members against any liability to the public or to any Member incident to the use of or resulting from any accident or intentional or unintentional act of an Owner or a third party occurring in or about any Common Area. The Board shall also determine whether the liability policy shall contain coverage of the risks assumed by the Association and the Owners under Section 5.21. If available, each policy shall contain a cross liability endorsement in which the rights of the named insured shall not be prejudiced with respect to any action by one named insured against another named insured. (c) Worker's Compensation: Worker's compensation insurance to the extent necessary to comply with all applicable laws of the State of Oregon or the regulations of any governmental body or authority having jurisdiction over the Project. (d) Fidelity Bond: A fidelity bond naming the Board, the Members, the Association and such other persons as the Board may designate as obligees, in an amount equal to at least one-fourth (1/4th) of the total sum budgeted for the Current Operation Account and Reserve Account for the current fiscal year. The fidelity bond shall contain a waiver of any defense based on the exclusion of persons serving without compensation. (e) Directors and Officers: Errors and omissions insurance covering directors and officers, if reasonably available, in types and amounts as the Board determines to be appropriate. (f) Other Insurance: Other types of insurance as the Board determines to be necessary to fully protect the interests of the Members. (g) Insurance by Member: Each Member shall obtain insurance coverage which the Member considers necessary or desirable to protect himself or herself, his or her Lot, his Residence and his or her personal property at the Owner's own expense; provided, however, that no Owner shall be entitled to exercise his or her right to maintain insurance coverage in a manner so as to decrease the amount which the Association, on behalf of all Owners and their Mortgagees, may realize under any insurance policy which the Association may have in effect at any time. 8.6.3 Annual Review: The Board shall review the adequacy of all insurance, including the amount of liability coverage and the amount of property damage coverage, at least once every year. At least once every three (3) years, the review shall include a replacement cost appraisal of all insurable Common Area Improvements and Residences without respect to depreciation. The Board shall adjust the policies to provide the amounts and types of coverage 35 ::ODMA\PCDOCS\PORTLAND\229786\7 and protection that are customarily carried by prudent owners of similar property in the area in which the Project is situated. ARTICLE IX DEVELOPMENT RIGHTS 9.1 LIMITATIONS OF RESTRICTIONS: Declarant is undertaking the work of developing Lots and other Improvements within the Project. The completion of the development and the marketing, sale, lease, rental and/or other disposition of the Lots is essential to the establishment and welfare of the Property and the Additional Property as a residential community. In order that the work may be completed and the Project be established as a fully occupied residential community as rapidly as possible, nothing in this Declaration shall be interpreted to deny Declarant or any Builder the rights set forth in this Article IX with respect to any portion of the Project owned by Declarant or any Builder respectively. 9.2 RIGHTS OF ACCESS AND COMPLETION OF CONSTRUCTION: Until the fifteenth (15th) anniversary of the expiration of the Annexation Period, Declarant, its contractors and subcontractors and any Builder and its contractors and subcontractors shall have the right to: (i) obtain reasonable access over and across the Common Area of the Project and/or do within any Lot owned by it whatever is reasonably necessary or advisable in connection with the completion of the Project; and (ii) erect, construct and maintain on the Common Area of the Project and/or within any Lot owned by it such structures as may be reasonably necessary for the conduct of its business to complete the work, establish the Project as a resort spa and residential community, including all businesses established by Declarant and dispose of the Project in parcels by sale, lease, rental or otherwise. 9.3 SIZE AND APPEARANCE OF PROJECT: Declarant shall not be prevented from increasing or decreasing the number or size of Lots that may be annexed to the Project, changing the exterior appearance of any Improvement, building different product types on similarly situated Lots, adding, altering, removing or reconstructing any Improvement located on any property owned by Declarant, adding, realigning or eliminating any proposed street or road, or altering any other matter directly or indirectly connected with the Project in any manner deemed desirable by Declarant, if Declarant obtains all governmental consents required by law. Declarant may construct and/or annex any improvements to the Project at any time prior to the fifteenth (15t'') anniversary of the expiration of the Annexation Period. 9.4 ALTERATIONS TO PLAT: At any time within three (3) years from the date that the first Lot in a Phase is conveyed to an Owner other than Declarant or a Builder, the boundaries of any Lot or Common Area in that Phase may be altered by a lot line adjustment or other change reflected on a subsequently recorded record of survey or subdivision plat, provided that the altered boundaries are approved by Declarant and all Owners of the Property involved in the boundary adjustment (the Board, with respect to property owned by the Association). Any such alteration shall be effective upon recordation of the Record of Survey or subdivision plat and, upon such recordation, the boundaries of the altered Lot or Common Area shall be altered for 36 ::ODMA\PCDOCS\PORTLAND\229786\7 purposes of this Declaration to conform to the boundaries as shown on the Record of Survey or subdivision plat. 9.5 MARKETING RIGHTS: Declarant and to the extent approved in its sole discretion by Declarant, each Builder, shall have the right to: (i) maintain model homes, sales, leasing and/or rental offices, storage areas and related facilities in any unsold Lots or Common Area within the Project as are necessary or reasonable, in the opinion of Declarant, for the sale, lease, rental or other disposition of the Lots; (ii) make reasonable use of the Common Area and facilities for the sale, lease, rental or other disposition of Lots; and (iii) conduct its business of disposing of Lots by sale, lease, rental or otherwise. The Declarant or its designee shall have the right to place temporary signs upon the Common Area (including the entrances to the Project) relative to the development and sale of its property within and adjacent to the Project. Declarant or its designee may erect such signs and shall maintain them in a first class condition. Upon substantial completion of the sale of the residential Lots in the Project, the Declarant or its designee shall remove any temporary sign and should it desire permanent signage at the entrance to the project such signage shall be in conformance with the architecture and design of the Project. The Declarant or its designee, in its sole discretion, may use any advertising materials, and public relations efforts reasonably necessary in connection with the sale and marketing of its property and/or businesses, including the sale and marketing of any Residence located in the Project. 9.6 TITLE RIGHTS: This Declaration shall not be construed to constitute a limitation on Declarant's title rights to any property adjacent to the Project and owned by Declarant prior to its annexation, nor shall it impose any obligation on Declarant or any other person or entity to improve, develop or annex any property not a part of the Project. This Declaration shall not be construed to limit the right of Declarant at any time prior to such an annexation to establish additional licenses, easements, reservations, restrictions and rights-of- way for itself, utility companies or others as reasonably necessary for the proper development and disposition of property owned by Declarant. 9.7 AMENDMENT: Until the date that is the tenth (10`h) anniversary of the expiration of the Annexation Period, the provisions of this Article may not be amended without the written consent of Declarant. ARTICLE X RIGHTS OF MORTGAGEES 10.1 CONFLICT: Notwithstanding any contrary provision contained elsewhere in the Project Documents, the provisions of this Article shall control with respect to the rights and obligations of Institutional Mortgagees specified herein. 10.2 LIABILITY FOR UNPAID ASSESSMENTS: Any Institutional Mortgagee who obtains title to a Lot pursuant to the remedies provided in the First Mortgage (except upon a voluntary conveyance to the Institutional Mortgagee) or by foreclosure of the First Mortgage 37 ::ODMA\PCDOCS\PORTLAND\229786\7 shall take the property free of any claims for unpaid assessments or charges against the Lot which accrue prior to the acquisition of title to the Lot by the Institutional Mortgagee. 10.3 RESERVE FUND: The Association shall maintain as reserve funds the Reserve Account which shall be sufficient to pay for maintenance, repair and periodic replacement of Common Area Improvements which the Association is obligated to maintain. This reserve fund shall be funded by Regular Assessments which are payable in installments, as specified in Section 7.2 hereof, rather than by Special Assessments; provided, however, that this provision shall not be deemed to limit the power of the Association to levy any other type of assessment or charge authorized by this Declaration. 10.4 CONTRACTS AND AGREEMENTS: Any agreement for professional management of the Project or any agreement providing for services of Declarant shall be for a term not to exceed one (1) year without the approval of fifty-one percent (51 %) of each class of Members; provided, however, that in no event shall such an agreement exceed a term of three (3) years. Any such agreement shall provide that the agreement may be terminated by either party without cause and without payment of a termination fee upon not more than ninety (90) days written notice. 10.5 NOTICES TO ELIGIBLE HOLDERS: The Association shall give timely written notice of each of the following events to each Eligible Holder: 10.5.1 Loss: Any condemnation loss or casualty loss which affects either a material portion of the Project or the Lot on which the Eligible Holder holds a First Mortgage; 10.5.2 Delinquency: Any delinquency in the payment of assessments or charges owed by the Owner of a Lot which is subject to a First Mortgage held by the Eligible Holder if the delinquency is not cured within sixty (60) days after its due date; 10.5.3 Insurance: Any lapse, cancellation or material modification of any insurance policy maintained by the Association; 10.5.4 Material Chances: Any proposal to take any action specified in this Article or in Section 10.1.2; or 10.5.5 Default: Any default by an owner -mortgagor of a Lot in the performance of the Owner's obligations under this Declaration or the Bylaws which is not cured within sixty (60) days. 10.6 INSPECTION OF BOOKS AND RECORDS: Upon request, any Owner, First Mortgagee or Institutional Mortgagee shall be entitled to inspect and copy the books, records and financial statements of the Association, the Project Documents and any amendments thereto during normal business hours. 10.7 FINANCIAL STATEMENTS FOR MORTGAGEES: If the Project contains more than fifty (50) Lots, the Association, at its expense, shall prepare an audited financial 38 ::ODMA\PCDOCS\PORTLAND\229786\7 statement for the immediately preceding fiscal year. The audited financial statement shall be available within one hundred twenty (120) days of the end of the Association's fiscal year. The Association shall provide a copy of the audited financial statement to any Mortgagee or Institutional Mortgagee who makes a written request for it. If the Project contains fifty (50) or fewer Lots and if an audited financial statement is not available, any Mortgagee or Institutional Mortgagee who desires to have an audited financial statement of the Association may cause an audited financial statement to be prepared at the Mortgagee's expense. 10.8 VOTING RIGHTS OF MORTGAGEES: For purposes of this Section 10.8, a Mortgagee shall be entitled to one (1) vote for each Lot encumbered by a First Mortgage owned by that Mortgagee. 10.8.1 FHLMC: Unless sixty-seven (67%) of the Institutional Mortgagees or sixty-seven percent (67%) of the Owners other than Declarant have given their prior written approval, the Association shall not be entitled to: (a) By act or omission seek to abandon, partition, subdivide, encumber, sell or transfer any property or Improvements owned, directly or indirectly, by the Association for the benefit of the Lots and the Owners. (The granting of easements for public utilities or for other public purposes consistent with the intended use of the property by the Association and Owners shall not be deemed a transfer within the meaning of this subsection 10.8.1(a)); (b) By act or omission change, waive or abandon any scheme of regulations, or enforcement thereof, pertaining to architectural design or exterior appearance of Lots, the exterior maintenance of Lots, the maintenance of party walls, party fences or other Improvements which serve more than one Lot, or the upkeep of lawns, plantings or other landscaping in the Project; (c) Fail to maintain fire and extended coverage insurance on insurable portions of the Common Area on a current replacement cost basis in an amount not less than ninety percent (90%) of the insurable value based on current replacement cost (which, replacement cost determination, as provided in subsection 8.6.3, need only be updated once every three years); (d) Use hazard insurance proceeds for losses to any property or Improvements owned by the Association other than for the repair, replacement or reconstruction of the property and Improvements. 10.8.2 Termination of Proiect: Any election to terminate the legal status of the Project as a Planned Development shall require: (a) The approval of sixty-seven percent (67%) of the Institutional Mortgagees and the approval of sixty-seven percent (67%) of the total voting power of the Association, if the decision to terminate the legal status is a result of substantial destruction or a substantial taking in condemnation of the property within the Project; or 39 ::ODMA\PCDOCS\PORTLAND\229786\7 (b) The approval of sixty-seven percent (67%) of the Members and sixty-seven percent (67%) of the Eligible Holders, if subsection 10.8.2(a), above, is not applicable. 10.9 PAYMENT OF TAXES AND INSURANCE: Institutional Mortgagees may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against any Common Area or Improvements thereon and may pay overdue premiums on hazard insurance policies or secure new hazard insurance coverage on the lapse of a policy for such Common Area. Institutional Mortgagees making such payments shall be owed immediate reimbursement for such expenditures from the Association and, on demand, the Association shall execute an agreement in favor of all Institutional Mortgagees reflecting entitlement to reimbursement. 10.10 SELF-MANAGEMENT: The approval of sixty-seven percent (67%) of the total voting power of the Association and fifty-one percent (51 %) of the Eligible Holders, based on one (1) vote for each Lot encumbered by a First Mortgage owned by the Eligible Holder, shall be required to assume self-management of the Project, if professional management of the Project has been previously required by the Project Documents or by an Eligible Holder. 10.11 MORTGAGE PROTECTION: A breach of any of the conditions or the enforcement of any lien provisions contained in this Declaration shall not defeat or render invalid the lien of any First Mortgage made in good faith and for value as to any Lot in the Project; but all of the covenants, conditions and restrictions contained in this Declaration shall be binding upon and effective against any Owner of a Lot if the Lot is acquired by foreclosure, trustees sale or otherwise. ARTICLE XI AMENDMENT AND ENFORCEMENT 11.1 AMENDMENTS: Prior to the conveyance of the first Lot to an Owner other than a Declarant, any Project Document may be amended by Declarant alone. After the conveyance of the first Lot, the Project Documents may be amended in accordance with the following provisions: 11.1.1 Mortgagee Requirements: With respect to any action to be taken under this Section 11.1 which is also governed by provisions of Article X that expressly require the approval of the Members and/or Mortgagees, the requirements of Article X must be satisfied in addition to the requirement of this Section 11.1. 11.1.2 Specific Subjects: The approval of seventy-five percent (75%) of each class of Members and fifty-one percent (51 %) of the Eligible Holders, based on one (1) vote for each Lot encumbered by a First Mortgage owned by the Eligible Holder, shall be required to amend any provision of this Declaration or the Bylaws, unless the amendment relates to one of the following subjects, in which case, the approval required shall be sixty-seven percent (67%) of each class of Members and fifty-one percent (51%) of the Eligible Holders: 40 ::ODMATCDOCSTORTLAND\229786\7 (a) Age restrictions; (b) Pet restrictions; (c) Limitations on the number of persons who may occupy a unit; or (d) Limitations on the rental or leasing of units. Any amendment or addition to the Declaration or Bylaws shall not be considered material and need not be approved by Eligible Holders if the amendment or addition is solely for the purposes of correcting technical errors or for clarification. Any Eligible Holder who receives a written request to approve an addition or amendment and who does not deliver or have its response postmarked within thirty (30) days of the date contained within the written request shall be deemed to approve the addition or amendment. All notices or other communications made pursuant hereto shall be in writing and shall be deemed properly delivered, given or served when (i) personally delivered against receipted copy; or (ii) mailed by certified or registered mail, postage prepaid, return receipt requested, in either case (i) or (ii) to the parties at their last known address. 11.1.3 Other Provisions of Declaration: Any other provision of this Declaration may be amended by the approval of each class of Members; provided however, that (i) no provision of this Declaration which provides for a vote of more than fifty-one percent (51 %) may be amended by a vote less than the percentage specified in the Section to be amended, (ii) no amendment which materially alters or changes any rights or easements granted to either Club Owner in this Declaration shall be valid without the written consent of the affected Club Owner, (iii) the provisions of the amendment must first be determined by the County to be consistent with the conditions imposed on the development of the Project by the County, and (iv) the provisions of Sections 5.12, 5.14, 5.15 and 5.21 cannot be amended without the consent of the Club Owners. 11. 1.4 Recordation of Amendment: Any amendment to this Declaration shall be effective upon the recordation in the Official Records of the County of an instrument executed by the President and Secretary of the Association which sets forth the terms of the amendment and a statement which certifies that the required percentage of Members have approved the amendment. 11.2 ENFORCEMENT: 11.2.1 Rights to Enforce: The Association, Declarant, and/or any Owner shall have the power to enforce the provisions of the Project Documents in any manner provided by law or in equity and in any manner provided in this Declaration. The Association may institute appropriate, legal action, temporarily suspend an Owner's use of the recreation facilities or an Owner's voting rights and/or levy a fine against an Owner in a standard amount to be determined by the Board from time to time. No determination of whether a violation has occurred shall be made until Notice and Hearing has been provided to the Owner pursuant to the Bylaws. If legal action is instituted by the Association, any judgment rendered shall include all appropriate 41 ::ODMA\PCDOCS\PORTLAND\229786\7 Additional Charges. Notwithstanding anything to the contrary contained in this Declaration, the Association shall not have the power to cause a forfeiture or abridgement of an Owner's right to the full use and enjoyment of the Owner's individually owned Lot, including access thereto over and across the Common Area, due to the Owner's failure to comply with the provisions of the Project Documents, unless the loss or forfeiture is the result of the judgment of a court, an arbitration decision, a foreclosure proceeding or a sale conducted pursuant to this Declaration. The provisions of this Declaration shall be equitable servitudes, enforceable by any Owner and/or the Association against the Association and/or any other Owner, tenant or occupant of the Project. Except as otherwise provided, Declarant, the Association or any Owner(s) shall have the right to enforce, in any manner permitted by law or in equity, any and all of the provisions of the Project Documents, including any decision made by the Association, upon the Owners, the Association or upon any property in the Project. 11.2.2 Violation of Law: The Association may treat any Owner's violation of any state, municipal or local law, ordinance or regulation, which creates a nuisance to the other Owners in the Project or to the Association, in the same manner as a violation of the Project Documents by making such violation subject to any or all of the enforcement procedures set forth in this Declaration, as long as the Association complies with the Notice and Hearing requirements. 11.2.3 Remedies Cumulative: Each remedy provided by this Declaration is cumulative and not exclusive. 11.2.4 Nonwaiver: The failure to enforce the provisions of any covenant, condition or restriction contained in this Declaration shall not constitute a waiver of any right to enforce any such provisions or any other provisions of this Declaration. 11.3 RIGHTS OF COUNTY: In consideration of the approval by Deschutes County of the Project, Declarant hereby covenants and agrees, and each Owner of a Lot by the acceptance of any deed thereto, for itself and its heirs, executors, administrators, successors in interest and assigns, covenants and agrees as follows: 11.3.1 Failure to Maintain Common Areas: (a) If the Association fails to maintain the Common Area so that Owners, lessees, and their guests suffer, or will suffer substantial diminution in the enjoyment, use or property value of their Property, thereby impairing the health, safety and welfare of the residents in the Project, the County, by and through its duly authorized officers and employees, shall have the right to enter upon the Project and to commence and complete such work as is necessary to maintain the Common Area. The County shall enter and repair only if, after giving the Association written notice of the Association's failure to maintain the Common Area, the Association does not commence correction of such conditions in no more than thirty (30) days from delivery of the notice and proceed diligently to completion. The Association agrees to pay all expenses incurred by the County within thirty (30) days of written demand. Upon failure by the Association to pay within said thirty (30) days, the County shall have the right to impose a lien for the costs against the Common Area. 42 ::ODMA\PCDOCS\PORTLAND\229786\7 (b) It is understood that by the provisions hereof, the County is not required to take any affirmative action, and any action undertaken by the County shall be that which, in its sole discretion, it deems reasonable to protect the public health, safety and general welfare, and to enforce it and the regulations and ordinances and other laws. (c) It is understood that action or inaction by the County, under the provisions hereof, shall not constitute a waiver or relinquishment of any of its rights to seek redress for the violation of any of the provisions of these restrictions or any of the rules, regulations and ordinances of the County, or of other laws by way of a suit in law or equity in a court of competent jurisdiction or by other action. (d) It is further understood that the remedies available to the County by the provision of this Section 11.3 or by reason of any other provisions of law shall be cumulative and not exclusive, and the maintenance of any particular remedy shall not be a bar to the maintenance of any other remedy. 11.3.2 Right to Enforce: The County shall be a third party beneficiary to the provisions of this Declaration and shall have the right but not the duty to enforce any or all of such provisions. 11.3.3 Amendment: This Section 11.3 cannot be amended or eliminated without the consent of the County. 11.4 ENFORCEMENT BY CLUB OWNER: Each Club Owner shall be a third party beneficiary to the provisions of this Declaration which confer a benefit upon such Club Owner of such Golf Club. The Club Owners shall have the right to enforce any and all such provisions against the Association or any Owner in any manner provided by law or in equity. No provision of this Declaration which exists for the benefit of the Club Owners or the Golf Clubs may be amended or eliminated without the consent of the affected Club Owner. This Section cannot be amended or eliminated without the consent of both Club Owners. 11.5 LIMITATION OF CLAIMS: The Association, whether on its own behalf or on behalf of any Owner or Owners, shall not file any claim or bring any action against Declarant, its agents, affiliates, officers, directors, partners, employees, contractors, subcontractors, material suppliers, architects, engineers, attorneys or consultants, including but not limited to claims or actions relating to the Project or any Lot, Residence or Improvements in the Project, whether pursuant to this Declaration or any purchase and sale agreement between Declarant and any Owner, or otherwise, or for any alleged breach of fiduciary duty or any defect, structural, in material, in workmanship, or otherwise, whether patent or latent, unless such claim is filed or action is brought within four (4) years of the date on which Declarant ceases to be a Class "B" Member pursuant to the Bylaws. 43 ::ODMA\PCDOCS\PORTLAND\229786\7 ARTICLE XII ARCHITECTURAL CONTROL 12.1 APPLICABILITY: Except as otherwise provided in this Declaration, proposals for Alterations (as that term is defined in Section 5.1) shall be subject to the provisions of this Article and may not be made until approved in accordance with the provisions of this Article. The provisions of this Declaration requiring architectural approvals shall not apply to (i) alterations of Common Area Improvements, (ii) the original construction of any Improvements on a Lot by Declarant, its agents, contractors or employees or (iii) prior to the first conveyance of a Lot to an Owner. 12.2 RESERVATION TO DECLARANT: Notwithstanding the power of the Board to appoint committees, Declarant hereby reserves to itself the right to appoint an Architectural Design Committee in accordance with the provisions of this Article XII When there is no longer any Member appointed by Declarant on the Architectural Design Committee, the Board may decide to dissolve the Architectural Design Committee and undertake the Architectural Design Committee's responsibilities. 12.3 MEMBERS: The Architectural Design Committee shall consist of a chairman and four (4) additional members. Persons appointed to the Architectural Design Committee need not be Members of the Association. All members shall serve until the expiration of the term for which they were appointed, if specified by the Board, or until they resign or are replaced. The Declarant shall be entitled to appoint the majority of the members of the Architectural Committee so long as this Declaration, as amended or restated, shall remain in effect. The Board may appoint a replacement for any member of the Architectural Design Committee originally appointed by the Board who resigns, is removed by the Board or otherwise fails to act. Declarant may appoint a replacement for any member of the Architectural Design Committee originally appointed by Declarant who resigns or otherwise fails to act, unless such member resigns in order to enable the Board to appoint a member as required by this Section 12.3. If Declarant fails to appoint a replacement it is authorized to appoint within fifteen (15) days after receiving notice of the vacancy, the Board shall appoint the replacement. 12.4 DUTIES AND POWERS: 12.4.1 Duties: The Architectural Design committee shall review and approve, disapprove or conditionally approve all plans, submittals, applications and requests made or tendered to it by Owners or their agents, pursuant to the provisions of this Declaration. In connection therewith, the Architectural Design Committee may investigate and consider the architecture, design, layout, landscaping, energy conservation measures, water conservation measures, fence detail, and other features of the proposed Improvements. 12.4.2 Architectural and Landscape Design Guidelines: The Architectural Design Committee, from time to time and in its sole discretion, may adopt architectural rules, regulations and guidelines ("Architectural and Landscape Design Guidelines"). The Architectural and Landscape Design Guidelines may also impose additional specific requirements on Lots if 44 ::0DMA\PCD0CS\P0RTLAND\22978W those requirements are reasonable in light of specific Lot topography, visibility or other factors. The Architectural and Landscape Design Guidelines shall be effective when they are adopted by the Architectural Design committee. The Architectural and Landscape Design Guidelines shall interpret and implement the provisions of this Declaration by setting forth the standards and procedures for architectural review and guidelines for architectural design, placement of buildings, color schemes, exterior finishes and materials, landscaping, fences, and similar features which may be used in the Project; provided, however, that the Architectural and Landscape Design Guidelines shall not be in derogation of the minimum standards established by this Declaration. The Architectural and Landscape Design Guidelines may include a schedule of fees for processing submittals (which shall not exceed the amount necessary to defray all costs incurred by the Architectural Design Committee in processing the submittals) and establish the time and manner in which such fees shall be paid. The Architectural and Landscape Design Guidelines shall constitute Rules. 12.4.3 Powers: The Architectural Design Committee may adopt rules and regulations for the transaction of business, scheduling of meetings, conduct of meetings and related matters. The Architectural Design Committee may also adopt criteria, consistent with the purpose and intent of this Declaration to be used in making its determination to approve, disapprove or conditionally approve any matter submitted to it for decision. 12.4.4 Consultants: With the consent of the Board, the Architectural Design Committee may hire and pay consulting architects, landscape architects, urban designers, engineers, inspectors, and/or attorneys in order to advise and assist the Architectural Design Committee in performing its duties. 12.5 APPLICATION FOR APPROVAL OF IMPROVEMENTS: Any Owner, except Declarant and its designated agents, who wants to perform any alteration or addition for which approval is required shall notify the Architectural Design Committee in writing of the nature of the proposed work and shall furnish such information as may be required by the Architectural and Landscape Design Guidelines or reasonably requested by the Architectural Design Committee. The Architectural Design Committee may require an application to include site plans, diagrams, photographs, sample materials or other presentation material as may be necessary for complete review and consideration of the proposed development. All applications shall be submitted in writing, shall conform to the requirements set forth in the Architectural and Landscape Design Guidelines and shall be accompanied by any required fee. The approval process may also be divided into preliminary and final approvals as set forth in the Architectural and Landscape Design Guidelines. 12.6 BASIS FOR APPROVAL OF IMPROVEMENTS: The Architectural Design Committee may approve the proposal only if the Architectural Design Committee finds that: 12.6.1 Conformity to Architectural and Landscape Design Guidelines: The plans and specifications conform to this Declaration and to the applicable Architectural and Landscape Design Guidelines in effect at the time the proposal was submitted; 45 ::ODMA\PCDOCS\PORTLAND\229786\7 12.6.2 Architectural Review: General architectural considerations, including the character, scale, and quality of the design, the architectural relationship with the site and other buildings, building materials, colors, screening of exterior appurtenances, exterior lighting and similar elements have been incorporated in order to ensure the compatibility of the proposed improvement with its design concept and the character of adjacent buildings; 12.6.3 Site Review: General site considerations including site layout, open space and topography, orientation and locations of buildings, vehicular access, circulation and parking, setbacks, height, walls, fences, and similar elements have been designed to provide a desirable environment and one which maximizes the view of the surrounding Residences and golf courses considering the location of trees, vegetation and other aesthetic and environmental factors; 12.6.4 Landscape Review: The proposal complies with the landscape standards contained in the Huntington Ranch Architectural and Landscape Design Guidelines, including without limitation, the use of native vegetation, the retention where possible of native landscape features and the coordination of home and landscape appearances; 12.6.5 Drainage: The percentage area of the Lot to be cleared or graded and the percentage area of the Lot to be covered by structures or other Improvements will not cause excessive drainage or surface water run-off due to the topography, percolation rate of the soil, soil types and conditions, vegetation cover and other environmental factors; 12.6.6 Lots on Golf Courses: For those Lots which adjoin or are visible from either golf course, the applicable Club Owner has approved (i) the landscaping plan for the portion of the Lot which adjoins the golf course, (ii) any drainage plan which potentially impacts the golf course; and (iii) the aesthetics of that portion of the Residence and Lot which impact the view from the applicable Golf Club. 12.6.7 Garage Size: The first garage to be constructed on any Lot shall contain sufficient area for a minimum of two (2) parking spaces. If the Architectural Design Committee makes a negative finding on one or more of the items set forth in this Section 12.6, it shall disapprove such matter, or condition its approval so as to allow such findings to be made. 12.7 FORM OF APPROVALS AND DENIALS: All approvals and denials shall be in writing. Any denial of an application must state the reasons for the decision to be valid. Any application which has not been rejected in writing within ninety (90) days from the date of submission shall be deemed approved. 12.8 PROCEEDING WITH WORK: Upon approval of the Architectural Design Committee, the Owner shall diligently proceed with the commencement and completion of all work so approved. Work must be commenced within one hundred eighty (180) days from the date of the approval. If the Owner fails to comply with the provisions of this Section 12.8, the approval given shall be deemed revoked unless the Architectural Design Committee extends the time for commencement. Any request for an extension shall be in writing. No extension shall be 46 ::ODMA\PCDOCS\PORTLAND\229786\7 granted unless the Architectural Design Committee finds that there has been no change in the circumstances under which the original approval was granted. 12.9 FAILURE TO COMPLETE WORK: Completion of the work approved must occur within eighteen (18) months following the approval of the work unless the Architectural Design Committee determines that completion is impossible or would result in great hardship to the Owner due to strikes, fires, national emergencies, natural calamities or other supervening forces beyond the control of the Owner or the Owner's agents. If the Owner fails to complete the work within the eighteen (18) month period, the Architectural Design Committee may notify the Owner in writing of his or her non-compliance and shall proceed in accordance with the provisions of Section 12.11, below. 12.10 DETERMINATION OF COMPLIANCE: The Architectural Design Committee shall have the right to inspect any work being performed during the construction period. Whether or not the Owner obtained proper approvals and whether or not any inspections were performed during the course of construction, the Architectural Design Committee shall inspect any completed work and shall make a determination of compliance as follows: 12. 10.1 Notice of Completion: Upon the completion of any work performed by an Owner for which approval was required, the Owner shall give written notice of completion to the Architectural Design Committee. If the Owner fails to give the notice of completion of work performed for which approval was required, the Architectural Design committee may proceed upon its own motion. 12.10.2 Inspection: Within sixty (60) days thereafter, the Architectural Design Committee shall inspect the work performed and determine whether it was performed in substantial compliance with the approval granted. If the Architectural Design Committee finds that the work was not performed in substantial compliance with the approval granted or if the Architectural Design Committee finds that the approval required was not obtained, the Architectural Design Committee shall notify the Owner in writing of the non-compliance. The notice shall specify the particulars of non-compliance and shall require the Owner to remedy the non-compliance. 12.11 FAILURE TO REMEDY THE NON-COMPLIANCE: If the Architectural Design Committee has determined that an Owner has not constructed an Improvement consistent with the specifications of the approval granted or within the time permitted for completion and if the Owner fails to remedy such noncompliance in accordance with the provisions of the notice of non-compliance, then after the expiration of thirty (30) days from the date of such notification, the Architectural Design Committee shall notify the Board, and the Board shall provide Notice and Hearing to consider the Owner's continuing non-compliance. At the Hearing, if the Board finds that there is no valid reason for the continuing non-compliance, the Board shall determine the estimated costs of correcting it. The Board shall then require the Owner to remedy or remove the same within a period of not more than forty-five (45) days from the date of the Board's determination. If the Owner does not comply with the Board's ruling within such period or within any extension of such period as the Board, in its discretion, may grant, the Board may 47 ::ODMA\PCDOCS\PORTLAND\229786\7 either remove the non -complying Improvement or remedy the non-compliance. The costs of such action shall be assessed against the Owner as a Reimbursement Assessment. 12.12 WAIVER: Approval of any plans, drawings or specifications for any work proposed, or for any other matter requiring approval shall not be deemed to constitute a waiver of any right to deny approval of any similar plan, drawing, specification or matter subsequently submitted for approval. 12.13 APPEAL OF DECISION OF ARCHITECTURAL DESIGN COMMITTEE: This Section 12.13 does not apply if the Board has dissolved the Architectural Design Committee or during the period of time that a majority of the Members of the Architectural Design Committee have been appointed by Declarant. If any Owner who alters his or her Lot or Residence disputes the jurisdiction or powers of the Architectural Design Committee or any requirement, rule, regulation or decision of the Architectural Design Committee (collectively referred to as "decision"), the Owner may appeal such decision to the Board. The Board shall notify such Owner of the time, date and place of a hearing to review the decision of the Architectural Design Committee. The notice shall be given at least fifteen (15) days prior to the date set for the hearing and may be delivered either personally or by mail. If delivery is made by mail, it shall be deemed to have been delivered seventy-two (72) hours after it has been deposited in the United States mail, first class, postage prepaid, addressed to the Member at the address given by the Member to the Board for the purpose of service of notices or to the address of the Member's Lot if no other address has been provided. After the hearing has taken place, the Board shall notify the Owner of its decision. The decision shall become effective not less than five (5) days after the date of the hearing. The determination of the Board shall be final. 12.14 LIABILITY: No approval of plans or specifications or publication of Architectural and Landscape Design Guidelines shall be construed as representing or implying that (i) such plans, specifications or Architectural and Landscape Design Guidelines will result in properly designed Improvements if followed or (ii) any Improvement built in accordance therewith will be built in a good and workmanlike manner. If members of the Architectural Design Committee have acted in good faith, neither the Architectural Design Committee nor any member shall be liable to the Association or to any Owner for any damage, loss or prejudice suffered or claimed due to: (a) the approval or disapproval of any plans, drawings and specifications, whether or not defective; (b) the construction or performance of any work, whether or not pursuant to approved, plans, drawings, and specifications; (c) the development of any property within the Project; or (d) the execution and filing of any estoppel certificate, whether or not the facts therein are correct. 12.15 ESTOPPEL CERTIFICATE: Within thirty (30) days after a determination of compliance is made pursuant to Section 12.10 and written demand is delivered to the Board by any Owner, and upon payment to the Association of a reasonable fee (as fixed from time to time by the Association), the Board shall record an estoppel certificate, executed by any two (2) Directors, certifying that as of the date thereof, either: (a) the work completed complies with this Declaration or (b) the work completed does not comply. In the latter situation, the certificate shall also identify the particulars of the non-compliance. Any successor in interest of the Owner 48 ::ODMA\PCDOCS\PORTLAND\229786\7 shall be entitled to rely on the certificate with respect to the matters set forth. The certificate shall be conclusive as between the Association, Declarant and all Owners and such persons deriving any interest through any of them. ARTICLE XIII WILDLIFE ISSUES 13.1 DOMESTIC PETS. Outdoor domestic cats are prohibited on the Project. All Owners shall assure that any domestic cat he or she owns, brings onto the Project or otherwise allows to come onto the Project shall be confined to the interior of Residences or other enclosed structures and shall not be permitted access to the outdoors. All other domestic pets within the Project shall be permitted outside only when on a leash. All Owners shall comply with this restriction and shall assure that its tenants, licensees, invitees and family members so comply. 13.2 FEEDING OF WILDLIFE. Feeding of wildlife is prohibited on the Project. No Owner shall feed wildlife, including big game species, within the Project. All Owners shall comply with this restriction and shall assure that its tenants, licensees, invitees and family members so comply. 13.3 SWALLOW NEST BOXES. Upon completion of the construction of the two Golf Courses, the Association shall assure that no fewer than 40 and no more than 50 swallow nest boxes shall be placed and maintained near water features on the Project. Declarant shall have the right, but not the obligation, to place such boxes. 13.4 BLUEBIRD AND OWL CAVITY NESTING STRUCTURES. Upon completion of the construction of the two Golf Courses, the Association shall assure that no fewer than 10 and no more than 20 cavity nesting structures shall be placed and maintained near water features on the Project to serve as nesting structures for bluebirds and small owls. Declarant shall have the right, but not the obligation, to place such structures. 13.5 BAT NESTING BOXES. Upon completion of the construction of the two Golf Courses, the Association shall assure that no fewer than 30 and no more than 40 bat nesting boxes shall be placed and maintained in the vicinity of water features on the Project. Declarant shall have the right, but not the obligation, to place such boxes. ARTICLE XIV OVERNIGHT LODGING LOTS 14.1 DESIGNATED OVERNIGHT UNITS. All Lots designated on the plat as Lots to be owned by individuals, but labeled "overnight lodging" (each, an "Overnight Unit") shall comply with this Article 14. All Overnight Units shall be available for overnight rentals no fewer than 45 weeks per year. Such rentals shall be through the central reservation system established for the Project. Such central reservation system may be created and operated by 49 ::ODMA\PCDOCS\PORTLAND\229786\7 Declarant or created and/or operated by an entity to which Declarant assigns such central reservation system, which entity may be the owner or operator of a hotel in the Project. 14.2 RIGHTS OF COUNTY: In consideration of the approval by Deschutes County of the Project, Declarant hereby covenants and agrees, and each Owner of a Lot by the acceptance of any deed thereto, for itself and its heirs, executors, administrators, successors in interest and assigns, covenants and agrees as follows: (a) If any Owner of an Overnight Unit fails to comply with the terms of this Article 14, the County shall have authority to enforce such terms. (b) It is understood that by the provisions hereof, the County is not required to take any affirmative action, and any action undertaken by the County shall be that which, in its sole discretion, it deems reasonable to enforce the provisions. (c) It is understood that action or inaction by the County, under the provisions hereof, shall not constitute a waiver or relinquishment of any of its rights to seek redress for the violation of any of the provisions of this Article 14 or any of the rules, regulations and ordinances of the County, or of other laws by way of a suit in law or equity in a court of competent jurisdiction or by other action. (d) It is further understood that the remedies available to the County by the provision of this Article 14 or by reason of any other provisions of law shall be cumulative and not exclusive, and the maintenance of any particular remedy shall not be a bar to the maintenance of any other remedy. 14.2.2 Amendment: This Article 14 cannot be amended or eliminated without the consent of the County. ARTICLE XV MISCELLANEOUS PROVISIONS 15.1 TERM OF DECLARATION: This Declaration shall continue for a term of fifty (50) years from its date of recordation. Thereafter, this Declaration shall be automatically extended for successive periods of ten (10) years until two-thirds (2/3rds) of the Members approve a termination of this Declaration. 15.2 CONSTRUCTION OF PROVISIONS: The provisions of this Declaration shall be liberally construed to effect its purpose of creating a uniform plan for the development and operation of a planned development pursuant to applicable Oregon law. 15.3 BINDING: This Declaration shall be for the benefit of and be binding upon all Owners, their respective heirs, legatees, devisees, executors, administrators, guardians, conservators, successors, purchasers, tenants' encumbrances, donees, grantees, mortgagees, lienors and assigns. 50 ::ODMA\PCDOCS\PORTLAND\229786\7 15.4 SEVERABILITY OF PROVISIONS: The provisions hereof shall be deemed independent and severable, and the invalidity or unenforceability of any one provision shall not affect the validity or enforceability of any other provision hereof. 15.5 GENDER, NUMBER AND CAPTIONS: As used herein, the singular shall include the plural and masculine pronouns shall include feminine pronouns, where appropriate. The title and captions of each paragraph hereof are not a part thereof and shall not affect the construction or interpretation of any part hereof. 15.6 DISTRIBUTION OF PROJECT DOCUMENTS: Upon the resale of any Lot by any Owner, the Owner shall supply to the buyer of the Lot a copy of each of the Project Documents and a copy of the current Budget. 15.7 EXHIBITS: All exhibits attached to this Declaration are incorporated by this reference as though fully set forth herein. 15.8 REQUIRED ACTIONS OF ASSOCIATION: The Association shall at all times take all reasonable actions necessary for the Association to comply with the terms of this Declaration or to otherwise carry out the intent of this Declaration. 15.9 SUCCESSOR STATUTES: Any reference in the Project documents to a statute shall be deemed a reference to any amended or successor statute. 15.10 CONFLICT: In the event of a conflict, the provisions of this Declaration shall prevail over the Bylaws and the Rules. 51 ::ODMA\PCD005\PORTLAND\229786\7 05/08/2002 09:49 541-416-6782 FRONT DESK PAGE 02 ]DRAFT 3/14/02 Memorandum of Understanding This Memorandum of Understanding (this "MOU'I is entered into as of this _ day of 2002 by and among HIGH DESERT DEVELOPMENT COMPANY LLC, an Oregon limited liability company ("HIGH DESERT"), DESCHUTES COUNTY, a municipal corporation of the State of Oregon (the "County') and the UNITED STATES BUREAU OF LAND MANAGEMENT (the "BLM" }. WHEREAS, High Desert has obtained County approval for a conceptual master plan (the "CMP Approval") for a destination resort to be located between Bend, Oregon and Redmond, Oregon (the "Resort') and is now seeking Final Master Plan (TMP") approval from the County for the Resort High Desert, the County and the BLM have been working cooperatively to identify the access roads to the Resort and for the public. WHEREAS, under the terms of the CMP Approval, the Resort shall obtain permanent primary and secondary access rights-of-way from the OLM across the surrounding BLM lands. The CMP Approval does not require final identification or construction of the permanent secondary access road until 50016 of the dwellings in the Resort have been constructed. Further, the CMP recognizes that the County prefers a connection for emergency purposes between the permanent primary and secondary access roads, if and when established across BLM lands. The CMP decision also recognizes that the identification of a location for a permanent secondary access route and any connection to the primary access road may not be accomplished prior to the processing of the FW request. Accordingly, the CMP decision recognizes that this MOU can serve to confirm the parties' intentions to continue to work cooperatively in the resolution of issues related to the long-term creeds of the public on BLM lands and to collaboratively address the requirements for the establishment of access for the Resort. WHEREAS, the SLM authorized right-of-way grants for the permanent primary access and a temporary emergency secondary access after issuance of an Environmental Assessment ("EX). The permanent primary access has been granted from the southeast portion of the Resort to Powell Butte Highway, along Road 6585-C. The temporary emergency secondary access has been granted from the northern portion of the Resort to Highway 126, along the existing Sheridan Road. WHEREAS, the BLM recognized in the EA that while it has noli po cY to provide a permanent secondary access, it is presently participating in a collaborative process addressing growth and transportation planning issues in the vicinity of Redmond as part of the Oregon Governor's Community Solutions process involving the City of Redmond, the City of Bard, the County, and the Oregon Department of Transportation and is also reevaluating transportation needs on the public lands in the northern area of the County during the development of the Upper Deschutes Resource Management Plan. The BLM, like the County, believes that these long-term planning processes will provide comprehensive information and guidance on the need for transportation facilities in this area of the County. The BLM has received a significant number of requests for this area, including golf course relocation by the City of Redmond, access and utility right-of-way grants for the Resort, a 19th Street extension request by the City of Redmond and ODOT, continued operations by the Oregon Military Department, etc. The BLM has determined that a collaborative effort, involving all affected agencies and the public, is the most appropriate method to evaluate the need for and location of additional transportation facilities, including access needs for the Resort. WHEREAS, all parties recognize that the location of a permanent secondary access and any connections is part of a multi jurisdictional long-range planning process and that ongoing cooperation is necessary to properly accommodate the Resort's long-term access needs. and the access needs of the public to the surrounding HLM lands. Any necessary right-of-way or access permits for the permanent secondary access road and/or its conmeetion point(s) are best considered in the context of this long-range planning process. Accordingly, the parties hereto agree as follows: 1. Cooperation: The parties shall continue to cooperate in good faith and use reasonable efforts in collaborative access planning that may include vacation of existing rights-of-way, use of existing rights-of-way, and/or consideration of new right-of-way proposals to best serve the public and the Resort in conformance with the ::0l]MAIPCD0CSW0RTLANt\27203M7 Exhibit J, Page 1 of 3 IMP Hearing - Pronghorn Resort - 5/14/02 05/08/2002 09:49 541-416-6782 FRONT DESK PAGE 03 DRAFT 3/14/02 CMP Approval and the objectives for federal lands management by the BLM. 2. Notices. Any notice or other communication (collectively referred to as a "Notice's concerning this MOU or any matter arising in connection with this MOU shall be in writing and addressed to the other party at the address set forth below. Any Notice shall be given by first-class mail. Any party may change any address for the delivery of Notice to such party, by giving Notice in accordance with the provisions ofthis Section. The attorneys for the parties may give any Notice. . 851 Fremont Avenue, Suite 103 If to High Desert: Los Altos, CA, 94024 Attn: Mr. Tom Hix If to the County: If to BLM: r, S bMe ripe u�l e 4775q 3. Successors and Assigns: This MOU shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Notwithstanding the foregoing, no party shall have the right to assign its rights or obligations hereunder to any other person or entity without the written consent of all of the other parties hereto, which consent shall not be unreasonably withheld. 4. Entire Agreement/Modifications: This MOU 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 MOU cannot be amended or modified without a writing signed by all of the parties hereto. 5. Counterparts: This MOU may be signed in one or more counterparts, each of which shaU be an original and all of which, when taken together, shall constitute one and the same instrument. 6. Governing Law. This MOU shall be governed by and construed in accordance with federal law, and the laws of the State of Oregon, to the extent these laws are not inconsistent with federal law. "High Desert": "County". :0DMAW1XXSW0RT ANM7203817 HIGH DESERT DEVELOPMENT COMPANY LCC, an Oregon limited liability company By: Name: Title: DESCHUTES COUNTY, OREGON By: Name: Title: Exhibit J, Page 2 of 3 FMP Hearing - Pronghorn Resort - 5/14/02 05/0B/2002 09:49 541-416-6782 FRONT DESK PAGE 04 "BLM": ;:OUMA\PCDOCSIPORn AND127203817 DRAFT 3/14/02 UNITED STATES BUREAU OF LAND MANAG T 7--- ,� -�- Name: er -------- Title: n2iv M4 Exhibit J, Page 3 of 3 FMP Hearing - Pronghorn Resort - 5/14/02