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2006-387H-Minutes for Meeting December 20,2005 Recorded 4/7/2006
Exhibit Page -j- of Dec 18 05 08:26p M Stout P•1 December 17, 2005 Deschutes County Commissioners c/o Devin L. Hearing, Associate Planner Deschutes County Community Development Dept 117 NW Lafayette Ave Bend, Oregon 97701-1925 File Number: CIJ-05-20 Applicant: Thornburgh Resort Company, LLC Subject: County Commissioner Special Hearing December 20, 2005, regarding Application for a Conditional Use Permit for a Destination Resort Conceptual Master Plan approval (1,980 acres) in the Exclusive Farm Use (EFU-TRB) zone. Our standing stems from the following: • My wife and I have a home on property we have had for over 10 years at 65965 White Rock Loop. • I have attended two public hearings on the application expressing opposition to the proposal. • I have submitted a letter dated July 14, 2005 in opposition to this hearing. Our opposition continues due to the following: • The application was denied on merit by Hearing Officer Ann Corcoran Briggs. • Review and decisions should remain on merit only and not be political. • The applicant's complaint of decision timing should be disregarded because the applicant agreed to review and agreement dates before the Hearings Officer in front of many witnesses, including myself. • The question, "can the applicant follow through with conditions of approval and completion without becoming a liability to the community and the County" has not been fully addressed to our satisfaction. These points remain of deep concern: • Will our wells be protected? Thornburgh Resort representatives have refused to promise to deepen our wells if water in our wells decrease. Will the County guarantee remains in our wells at current levels? • We bought our land expecting land use, especially public land use, to remain public. We do not approve of the resort overlay or use of BLM lands for private profit (proposed Cline Butte Transfer). • There is no major natural resort feature(s) on the proposed resort lands (big spring, river, mountain, ocean, etc.). Features will be man-made. So, this will mostly be a high-end rural subdivision, not a resort. Oregon's land-use laws are meant to protect against this and it is your responsibility to uphold them. • The applicant proposes a 6' deep recreation lake(s). Lakes for recreation use and stocking of fish need to be 10'-12 in depth minimum. This overlooked standard could nearly double the amount of water the project needs. A 20-acre lake is small for ski-boat and jet-ski use. Noise from this activity would be heard from miles around. These uses need to be excluded from the proposal. Active recreational uses will not be compatible with fish and wildlife and a natural area resort environment. Consequently, the necessity Exhibit f4 Page Z of 2.a, I Deci 18 05 08:26p M Stout p.2 to make man-made resort features is not compatible with natural resort criteria and the neighborhood. The resort does not have sufficient water rights and cannot meet mitigation requirements according to the Hearing Officer's Decision for use of the proposed 12 million gallons per day consumption. A great amount of water will be lost due to evaporation and other consumption (around 40% according to the applicant). Water re-entering the aquifer will contain contaminants. There are too many unknowns and problems associated with this potential damage to public resources. We understand the resort needed the approval of HB 3494 in order to gain sufficient water rights through mitigation. We think water in the Deschutes basin is critical for farming and fish and wildlife. We think the resource is not sufficiently understood to safely allow the increasing proliferation of resort requests for allocation. The spin from developers is that there is plenty of water while in the new booklet "Xeriscaping in the High Desert" by OSU Extension Service, the 2005 Mayors of the Central Oregon Cities Organization signed their names in the booklet saying how essential water conservation is for "our grandkids." We are worried about the potential impact (capacity and water quality), on our neighborhood wells if the resort uses up to 12 million gallons of water per day as planned. Traffic impacts will be significant and the applicant's mitigation offerings seem very inadequate for long term damage to Cline Falls Road, safety improvements to the Cline Falls Road/Highway 20 intersection, and the dangerous intersection at Highway 20 and Innes Market Road where there is no left turn refuse. With ODOT being a reported $1 billion short of fulfilling the State's transportation needs, it is essential that the applicant fulfill concurrency obligations (building off-site road improvements before constructing on-site), and your responsibility to see they do. In summary, it appears the resort does not have sufficient water rights without special legislation. It appears the resort does not have sufficient land without the Cline Butte Transfer and special public land dispensation. It appears traffic mitigation is significantly under identified and under funded. The resort would create additional urban sprawl outside of and near the City of Redmond. With these impacts and others such as resultant service support traffic, impacts on farming, impacts on the environment, and impacts on nearby residents, approval of this application seems too much consideration in favor of the developer and too much sacrifice for the public. We are opposed to approval of the application and urge you to uphold the Hearing Officer Decision. Sincerely, ~au S Mel *egtistered Landscape Architect - State of Oregon Marsha Stout 65965 White Rock Loop Bend, OR 97701 *Due to conditions prohibiting timely mailing or our attendance at the hearing, this submittal has been faxed to a third party who will deliver it prior to the hearing in our behalf. The signed original will be forwarded via regular mail. Exhibit Page--3- of ~a'~j Lerguson & Associates, Inc. Transportation Planning/Traffic Engineering December 20, 2005 #00619 Nunzie Gould 19845 J.W. Brown Road Bend, OR 97701 420.3325 re: Traffic Findings for the Thornburg Destination Resort - Tumalo, Oregon As requested, we have prepared the following summary of our findings related to the traffic study prepared for the Thornburg Destination resort. Supporting documentation has been previously submitted as part of the record. In general, the hearings officer's findings support our conclusions: 1. The hearings officer concluded that the uses proposed did not conform to what would be allowed. As such, the traffic analysis, which assumed private restaurants and private golf clubs, underestimated impacts of the proposed development by assuming that the trip generation would be very low compared to what is typically expected for this type of facility. 2. The hearings officer concluded that the application did not present a clear enough picture of what was being proposed. The traffic study appeared to analyze less development that what was proposed. As such, the traffic study underestimated the traffic impact since not all potential development was accounted for in the study. 3. The traffic study did not study all access points and did not review intersection sight distance at the access points. There is concern that intersection sight distance might not be sufficient, especially at the southern-most entrance. 4. The hearings officer concluded that it was the policy of the county to require no traffic mitigation at an intersection that would already be failing (Level of Service F). It would be good for the County to weigh-in on this issue, especially in situations where there are safety concerns, such as the stop-controlled intersections along Highway 20. Is it good policy to approve a project that impacts already failing intersections for which there is no identified fix that would be funded in the next five years or more? 5. There is an accident problem on Highway 20 in Tumalo. The problem appears to be growing and the addition of trips would only exacerbate the problem. This problem was not acknowledged in the traffic study. 6. The hearings officer concluded that a commitment to make a proportionate share contribution to an interchange in Tumalo would be adequate mitigation for the projects impacts. It is our concern that the interchange will not be constructed in a timely manner. There is not adequate funding for the interchange. The suggested proportionate contribution ($200,000 to $400,000) is based on an interchange cost of $2.0 million; however, the ultimate cost may be closer to $5.0 to $10.0 million, or more depending supporting improvements and the design. As such, there is not adequate funding for the project and the calculations do not P.O. Box 1336 • Bend, OR 97709 • 541.617.9352 • Fax: 503.210.0272 • gscott@traffic-guy.com Exhibit 4 Page A_ of g23 Nunzie Gould: Thornburg Resort reflect a proportionate share of the ultimate cost. With the Eagle Crest development, the interchange project was discussed being implemented sometime around year 2005. The interchange project, however, is not even on the state's funding plan for the next five years and both the State and the County cite funding shortfalls for road and highway needs. 7. While the County Commissioners may ultimately approve the development for reasons that override traffic considerations, before doing so it would be prudent of the Commissioners to require that the traffic impacts of the project be fully studied.using a forecast that is comparable to Eagle Crest and that issues such as intersection sight distance be addressed. Without such an analysis it is not possible to make a fully informed decision that considering a more realistic forecast and impacts and what resulting traffic mitigation would be appropriate. This is trusted that this short summary of our findings is of use to the County Commissioners in their decision regarding the Thornburg project as it currently stands. Please feel free to call me if you have any questions or comments. Very truly yours, FERGUSON & ASSOCIATES, INC. G. Scott Ferguson, PE ORE00~ SCOTT FEP EXPIRATION DATE: December 20, 2005 .D PRO E IE Ferguson & Associates, Inc. 2/2 Review #00619 Exhibit {.4 Page 5 of a.a3 Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdewey bendcable.com December 19, 2005 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 Re: Board Hearing on Proposed Thornburgh Resort; CU-05-20 Letters Submitted on Behalf of Nunzie Gould Dear Commissioners: On behalf of my client Nunzie Gould, I am submitting to the Board a series of letters on specific topics associated with the Thornburgh Resort application and the Hearings Officer's Decision. These letters will address the following issues: 1. Traffic impacts regarding Tumalo; 2. Other inadequacies of the Applicant's traffic analyses. 3. Reasons why this proposal fails to qualify as a destination resort; 4. The Applicant's failure to meet financial resource and assurance standards; Lack of information to sustain Applicant's burden of proof on key destination resort criteria; 6. Inadequate and inappropriate conditions of approval; 7. Failure to satisfy criteria for adequate water; and 8. Objections to County procedures. The Board will find in these letters the consistent themes of the Applicant trying to minimize or underestimate impacts of the proposed Resort and providing vague and incomplete information on the Resort. Exhibit Page _ of December 19, 2005 Page 2 We are also relying on our other arguments and materials already submitted in the Record, which we incorporate by reference. Also, attached is another summary of issues, organized by Code sections, which we provided to the Board as part of our appeal. Very truly yours, PAUL DEWEY PD:ao cc: Client Exhibit 14 Page of .223 T NOTICE OF APPEAL OF NUNZIE GOULD ON CU-05-20 Introduction. Nunzie Gould hereby appeals the November 9 Decision of the Deschutes County Hearings Officer on Case No. CU-05-20. Though we support and concur with the Hearings Officer's denial of the application and her reasoning to reject it, we believe that there are additional reasons the application should have been denied. If the Board decides to hear an appeal from the Applicant, we request the Board to grant de novo review for the reasons stated below. This appeal is precautionary only. If the Applicant does not appeal the decision of the Hearings Officer, we will then withdraw our appeal. Party Status. Nunzie Gould is entitled to file this appeal pursuant to DCC 22.32.010 as she is a party to the review for land use approval in CU-05-20, having participated below. Appeal Form and Filing Fee. We have completed the attached Notice of Appeal form and paid the required appeal fee pursuant to DCC 22.32.015(A). Timely Filing. This appeal is being timely filed within the 12-day period from the mailing of the Decision on November 9, pursuant to DCC 22.08.070. Summary of Appeal. The proposed Thornburgh "destination resort" is in reality a large, high-impact rural subdivision that is not legal under state law and the County Code. It is a conceptual transplant of private golf course communities in Palm Springs, California (as admitted by the Applicant's materials), and is only trying to redefine itself as an Oregon destination resort. As found by the Hearings Officer, the Applicant did not even satisfy basic destination resort requirements for adequate overnight housing and open space. This development application also suffers from vagueness (which the developer calls market flexibility) and a persistent underestimation of impacts. Where the developer refuses to be specific about what it will actually develop, it should at least assess maximum impacts or a worst case scenario. Instead, the developer minimizes impacts, as with traffic where it assumes low numbers of vehicle trips and low travel counts on the route to Bend and trivializes safety issues such as its adding hundreds of vehicles to an already failing Tumalo intersection that is currently witnessing a substantial number of accidents. Another example is the developer's Page 1 - NOTICE OF APPEAL Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Exhibit 14 Page b'" of 4a calculation of its golf course water consumption as if it were municipal use consumption of only 40 percent, rather than the 60-70 percent consumption that happens with irrigation use (as Pronghorn assumed for its golf courses). The Hearings Officer's rejection of this application only scratched the surface of the inadequacy of this proposal in terms of both providing adequate information and satisfying approval criteria. Because of the Hearings Officer's determinations, she did not have to reach many of the issues we address below. Statement of Issues on Appeal. 1. The Hearings Officer erred in failing to find that the Applicant had not satisfied its burden of proof with regard to the information required to be presented on the following criteria of DCC 18.113.050. The Hearings Officer in her Decision merely restated the information provided by the Applicant without an assessment of its adequacy. a. B.1, including the failure to provide a proposed resource protection plan and an adequate description of the location of resources, the resort impact on them,.how the resort design will preserve and enhance the natural features, how the development is compatible with the 65A soils in the southeast area of the proposed resort that were to be excluded from the destination resort overlay, and the failure to acknowledge the milkvetch to the west and southwest. b. B.2, where the Applicant's traffic study did not adequately address impacts on road systems and necessary improvements for mitigation, including but not limited to where the Applicant's traffic study does not address: 1) the correct amount of public and visitor use of golf courses; Cline Falls Highway; 2) traffic counts for the "secondary access road" intersection with 3) the 51h and 7`h Street intersections with Highway 20; or 4) the maximum possible development in the resort. C. BA.c, where the design guidelines and development standards were not clearly identified, are too vague and have too many exceptions to preserve the existing topography and vegetation. d. B.5., where the Applicant failed to present a management plan with prescriptions to preserve open space for each phase of the development and failed to identify such important natural features as the old growth juniper and highly-visible slopes and ridges of Cline Buttes (which are actually part of the Buttes, contrary to the Hearings Officer's apparent assumption that only the very tops of the Buttes are "Cline Buttes") and failed to address the requirement for "deed restrictions." Page 2 - NOTICE OF APPEAL Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Exhibit ff- Page 2 of .2,Z3 e. A.l 1 and 13.6, where the Applicant did not specify all proposed recreational amenities (and instead gave a list of possible amenities) did not adequately explain public use of facilities and amenities on the site and provided inconsistent information on, for example, public and visitor access to golf courses and overnight accommodations. f. 13.7, including the failure to describe the "location and sizing" of utilities and the "alternate power generation facilities." g. 13.8, where the Applicant did not adequately described the proposed order and schedule of phasing and an explanation of when facilities will be provided and how they will be secured. h. 13.9, where the Applicant failed to identify all of the historical trail routes it is cutting off or moving and to explain how the resort and its buffers have been sited or designed to minimize impacts on adjacent lands. i. B.10, including the failure to identify onsite fire and police facilities. j. B.11, where build-out water needs and waste disposal issues are not completely disclosed. k. B.12, including the failure to prepare an erosion-control plan as required by ORS 468. 1. B.14, where the Applicant failed to provide an evacuation plan with such basic details as evacuation routes. in. B.17, where the Applicant did not address how facilities and common areas would be established and maintained in perpetuity. n. B.18, where the Applicant did not correlate housing availability with income level and commuting distance, including identification of the location in quantity of housing for each income level of employees and their commuting distance. 2. The Hearings Officer erred in failing to properly apply the standards of DCC 18.113.060, including under the following subsections: a. A, where the Hearings Officer acknowledges that the Applicant's first phase facility plans for eating and meetings are not clear, only assumes that they will be "financially assured" rather than built at the time of the first lot sales and dwellings and concludes that a condition of approval can satisfy this lack of information, including on the amount and method of financial assurance. b. C, where direct access exists only for the "Tribute," which is a separate resort from the "Pinnacle," which lacks direct access to an arterial or collector roadway; where proposed road connectors between the Tribute and the Pinnacle are not on Applicant's land, are Page 3 - NOTICE OF APPEAL Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Exhibit N Page / 0 of LZ-3 outside the Destination Resort Overlay Zone and have not been approved by the BLM and DSL; where the so-called "existing" roads are not roads; where the unimproved roadway near the southern boundary in Sections 28-30 does not provide legal access and is not an existing federal right-of-way; where the BLM MOU is non-binding; where the Eagle Crest MOU does not allow use of Eagle Drive; and where the use of roads to access Barr Road is not included in the MOU and would not be legal. C. E.1, where the Applicant did not adequately describe each phase or even provide adequate maps of the phasing, failed to show adequate access to the southwest area of the resort (including a necessary amendment to the TSP for Barr Road) and failed to show that the development is consistent with the intent and purpose of DCC 18.113 and Goal 8 and E.3, where the phases are in non-contiguous areas that are in two different resorts. d. G.1, where the proposed residential lot standards to be adopted by the Hearings Officer as part of a CMP were not clearly identified, no minimum standards were adopted that satisfy the comprehensive plan's intent for solar access, fire protection and vehicle access and the Applicant's "range" of standards failed to satisfy this intent. 3. The Hearings Officer erred in failing to address and find noncompliance with the statutory standards of ORS 197.435 et seq., including: a. ORS 197.445(1) and the fact that the critical road connections between the two "parts" of the resort (if this is not two resorts) and parts of the trail system are not in the destination resort overlay zone. b. ORS 197.445(5) and the fact that the list of commercial uses incidental to the resort have not been shown to be necessary. C. ORS 197.445(4)(b)(E) and (F) and the failure to show adequate permanent overnight accommodations and guarantees. 4. The Hearings Officer erred in failing to find that the Applicant had not satisfied its burden of proof with regard to the criteria of DCC 18.113.070 regarding the following subsections: a. C(1) and (2), where there was only a cursory letter from a bank stating that unidentified principals had necessary financial resources, where the Hearings Officer required that opponents provide "specific evidence to the contrary" which is impossible where the investors and their individual resources are not identified, where the Hearings Officer ignored requests that the investors be identified, and where it is not clear that the unidentified people are even the "developer." b. C.3, where the impacts on the Tumalo community and the cost of transportation infrastructure are not considered. Page 4 - NOTICE OF APPEAL Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Exhibit t-f - Page _fl_ of ~~3 C. CA, where the economic feasibility analysis has not shown that the site's natural amenities and developed recreation facilities will be a primary attraction to visitors where so few facilities are open to visitors, the analysis shows homeownership rather than visitors as being the base for any economic feasibility, and the limited public and visitor access cannot support the development and operation of resort amenities. d. D, where the Applicant relies on a MOU that is not enforceable and does not guarantee complete wildlife impact mitigation and has not done a complete assessment of wildlife habitat, including of impacts on bird species with sensitive nesting times. e. E, where it is concluded that there are no "significant important natural features" despite the presence of 1,000-year-old juniper trees and the highly visible and prominent slopes and ridges of Cline Buttes and no showing is made that these features will be maintained (such as due to road cuts across slopes and ridges and dwellings on the slopes). f. F, where the Hearings Officer improperly concluded that there are no agricultural fields, crops, or extensive agricultural use in the vicinity of the proposed resort. g. G, where: 1) the Applicant's TIA was based on inconsistent and inadequate information, including: a) public and visitor use of golf courses inconsistent with the burden of proof; b) the low and inaccurate amount of the traffic to and from Bend; c) low background traffic counts; d) low trip generation rates; e) minimalized safety statistics; f) a failure to include all possible development suggested by the Applicant; and g) a failure to assess impacts if facilities are built sooner than planned due to "market" demand. 2) it was improperly concluded that the development would not significantly affect the transportation facility of the Highway 20/Cook Avenue intersection because the intersection is already failing: Page 5 - NOTICE OF APPEAL Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Exhibit 1+ Page of La3 a) where neither the previous Board ruling nor the Code language supports that result; b) where state rules on volume/capacity ratio and non- degradation were not applied; C) where the conclusion relies on an inadequate and unenforceable MOU with ODOT; d) where the estimated cost in the MOU is seriously understated; e) where a contribution toward a future improvement does not equate to providing the improvement; and f) where the project is not scheduled for construction. 3) it where access to and within the resort is not adequate or sufficiently assessed: a) where not all access points to the resort were considered, such as what has been described as the BLM "secondary" access road off Cline Falls Highway near Section 30 that accesses the southern end of the resort in Section 29; b) where there is no approved access on BLM and DSL roads and a NEPA process must first be completed by BLM before right-of-way applications may be determined; C) where a new internal road to the southwest part of the property is not safe or efficient; d) where Barr Road is not a collector or arterial under the TSP; and e) where the proposed roads on BLM and DSL land to connect the two resorts are not safe or efficient. h. H, where wildfire evacuation plans have not been implemented or even adequately-enough described to identify basic evacuation routes to assess minimalization of hazards and allowing for safe evacuation and where structures are planned on slopes exceeding 25 percent. i. I, where no police and fire facilities are provided on the site. Page 6 - NOTICE OF APPEAL Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Exhibit + Page 1-_~_ of aZ j. K, where there has been a low and improper calculation of the needed amount of mitigation, where the system is not specific enough to determine the potential maximum use of water, where outdated data has been relied upon, where quasi-municipal use has been inappropriately applied to irrigation of golf courses, where Thornburgh's groundwater rights will be junior rights which would be the first turned off if downstream instream flows are not met (under the Pelton-Round Butte settlement agreement on "no futile call"), where seepage and evaporation are not properly accounted for, and where the state mitigation rules are invalid as unconstitutional. k. L, where there the wastewater disposal plan fails to address contamination of the groundwater. 1. M, where compliance with the requirement of mitigating demands on publicly-owned recreational facilities on public lands in the surrounding area is based on an unenforceable MOU and is purely contingent on if the Applicant chooses to implement the MOU. in. N, where the Applicant and Hearings Officer address lighting only with regard to whether county lighting standards will be met rather than the criterion standard which calls for site improvements to be located and designed "to avoid or minimize" adverse effects of the resort on the surrounding land uses. n. O, where again groundwater contamination is not addressed. o. P, where impacts on private lands are not addressed, the impacts of lighting are not addressed, the MOU with the BLM is unenforceable and the activities at the resort, from construction to waterskiing, will impact quiet recreational activities on BLM land. P. Q, where the list of proposed commercial, cultural, entertainment or accessory uses are not all typically provided to overnight or other short-term visitors, such as churches, and exceed the allowed uses in DCC 18.113.030(D). q. S, where there is inadequate information on the proposed temporary structures sufficient for the Hearings Officer to approve as part of the CMP, including the offhand reference to housing for construction workers, and in particular where none of the proposed temporary structures are specified in any detail. 4. The Hearings Officer erred in finding that the proposal satisfies the conditional use criteria of DCC 18.128.015, including: a. A, where the Hearings Officer fails to address such issues as the adequacy of transportation access to the site (including the failure to address Barr Road). b. B, where the compatibility of the transportation impacts and noise and the negative impacts on area property values and natural and physical features are not addressed. Page 7 - NOTICE OF APPEAL Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Exhibit }-l Page -L-q- of _!?L2 5. The Hearings Officer erred in failing to address the issues concerning the facts that there are two separate resorts here that they are connected only by roads for which there is currently no right of way on BLM and DSL land and which roads are not in the destination resort overlay zone. 6. The Hearings Officer failed to address the issue of whether the resort is within three miles of a high-value crop area, which it apparently is, and impacts on this agriculture. 7. The Hearings Officer improperly provided that conditions of approval "could be imposed" to satisfy the following criteria where there has been an inadequate determination of feasibility, the conditions are too indefinite to determine feasibility, the public's right to comment on these criteria would be inappropriately replaced by agency approvals, and the conditions would not be adequately enforceable: a. DCC 18.113.050(B)(4)(c) concerning restoration of native vegetation in areas disturbed by construction. b. DCC 18.113.060(A) concerning construction of facilities or financial assurance of such construction prior to the closure of sales on residential lots. C. DCC 18.113.060(D)(1) concerning assurance of compliance with the required percentage of open space. d. DCC 18.113.060(F) concerning assurance that density requirements are met. e. DCC 18.113.060(G)(2) concerning assurance of compliance with dimensional standards during each development phase. f. DCC 18.113.070(D) concerning adoption and implementation of a wildlife mitigation plan through the life of the project. g. DCC 18.113.070(I) concerning assurance of continued compliance with adequate public safety protection. h. DCC 18.113.070(N) concerning required compliance with the BLM MOU with respect to buffering from the Tumalo canal ACEC, setbacks and buffers from the perimeter of the property and subdivision design and approval. i. DCC 18.113.070(0) concerning compliance with DEQ regulations for the sewage system. j. DCC 18.113.070(Q) regarding assurance that standards are met at the time of site plan review or further subdivision for commercial and accessory uses necessary to serve needs of resort visitors. Page 8 - NOTICE OF APPEAL Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Exhibit 4-1 Page 15- of a-a 8. The Hearings Officer erred in determining that the Applicant's modification of its application was significant enough to constitute a modification of the application under the Code. 9. The Hearings Officer erred in concluding that the proposed fencing of the property did not inappropriately impact wildlife and recreational users where the Hearings Officer failed to address this fencing in the context of the various criteria of 18.113.050,.060 and .070 (and the fact that it will cut off the alleged federal right-of-way along the southern border and other public rights-of-way) and 18.128.015 and further improperly assumed without any basis that the fencing would not be over three feet high and site obscuring. 10. The Hearings Officer erred in not requiring identification of all current landowners and their approval of this application. 11. The application is not consistent with the County Comprehensive Plan where 65A soils are impermissibly included in the proposed resort. De Novo Review. The following are additional appeal issues and reasons to grant de novo review: 1. A de novo hearing is needed to correct erroneous findings contained in the Hearings Officer's decision and to address significant policy issues such as the interpretation of significant transportation impacts. 2. De novo review will allow opponents of the resort to comment on conditions of approval which have been raised by the Hearings Officer for the first time in her decision. It will also enable the County to correct factual errors in the decision. 3. The substantial rights of the opponents will be significantly prejudiced without de novo review where the decision fails to address inadequate information to determine compliance with approval criteria and fails to address a number of significant issues raised by opponents. 4. The request for a de novo hearing is not necessitated by the failure of the opponents to present evidence at the time of the previous hearing. 5. Unless the Applicant grants an extension of the 150-day clock, there is not sufficient time for the Board to hear this appeal. The Hearings Officer violated DCC 22.28.015 by failing to include findings as to the history and status of the 150-day period in this case. Respectfully submitted this 21sk day of November, 2005. PAUL D. DEWEY, Attorney for Nunzie Gould Page 9 - NOTICE OF APPEAL Paul D. Dewey, OSB #78178 1539 NW Vicksburg Bend, Oregon 97701 (541) 317-1993 Exhibit fi Page L(,e- of c a i Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdeweykbendcable.com December 19, 2005 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 Re: Board Hearing on Proposed Thornburgh Resort; CU-05-20 Letter #1: Traffic Conditions Regarding Tumalo Dear Commissioners: This letter is on behalf of my client, Nunzie Gould, to address the specific issue of traffic impacts in Tumalo due to the proposed development and why these impacts require a denial of this application, both under the significant effects criteria of DCC 18.113.070(G) and the compatibility conditional use criteria of DCC 18.128.015. DCC 18.113.070(G) provides that destination resort developments that significantly affect a transportation facility shall assure that the development is consistent with the identified function, capacity and level of service of the facility. That would be accomplished either by limiting the size of the development or fixing the transportation facility or altering designs to reduce automobile use. DCC 18.128.015 requires adequate transportation access and compatibility by the development. Traffic Conditions in Tumalo with Highway 20 The main intersection in Tumalo of Cook Avenue and Highway 20 has been failing since at least 1999. At that time the County's minimum level of acceptable service was "D," but the intersection was so overcrowded that it actually ranked as a failing "F." In 2005 the intersection has absorbed another six years of traffic growth and is failing even more. This failure results not only in extended waiting times for people to be able to make turns, but also in serious accidents. This problem is only getting worse, as explained by local traffic engineer, Scott Ferguson, in his report of 8/17/05, page 4. "The crash history on Highway 20 in Tumalo should be looked at as a system. Finally, a very high level of Service F at a stop controlled approach to a high speed highway indicates more than a congestion problem - it points to a safety problem. Where there are insufficient gaps in traffic, drivers tend to accept shorter and shorter gaps, which lead to more mistakes and an increase in crashes." (Ferguson Report 7/14/05, p. 4) Exhibit H Page -r7- of aP-3 December 19, 2005 Page 2 Because of the delays and danger at the Cook Avenue intersection with Highway 20, traffic is now diverting to Fifth and Seventh Streets to access Highway 20. The result is increasing accidents, particularly at Seventh Street. Cook Avenue at Highway 20 had seven accidents in 2002-03, while Seventh Street at Highway 20 had five accidents in that same time period. (Ferguson Report 8/17/05, p. 5) Added Traffic from Thornburgh Resort The additional traffic to be added to the Cook Avenue intersection by the Thornburgh Resort at the p.m. peak hour period would more than double the current use according to Mr. Ferguson (Ferguson Report 7/14/05, pp. 21-22), adding 284-378 new trips onto the current level (stated to be 119 by the Applicant).1 Hearings Officer's Decision The Hearings Officer in her decision ruled that since the Thornburgh traffic would not cause the Cook Avenue/Highway 20 intersection to fail (since the intersection was already failing), then the development would not "significantly affect" the intersection. This reasoning is highly illogical. With the intersection of Cook Avenue and Highway 20 already failing with a number of traffic accidents, including fatalities, the addition of hundreds of more vehicles to the intersection must be considered a significant effect. Even the Applicant acknowledged that "the proposed resort can be expected to make matters worse" (9/28 Memo, p. 23) and the Applicant's traffic engineer states that "the proposed development is anticipated to significantly impact the Highway 20/Cook Avenue intersection." (Technical Response #7, p. 5, second paragraph) The Hearings Officer based her reasoning on a 1999 Board decision ruling that an expansion of Eagle Crest that would add more traffic to this failing intersection would not "significantly affect" the intersection since it was already failing. That decision is outdated, however, since it explicitly relied on the 1999 case of ODOT v Coos County, 158 Or App 568 (1999). In reaction to that court decision, the Oregon Highway Plan was amended to include a "nondegradation" performance standard in OHP Action 1F.6, to avoid further degradation even where a system is already failing. See Jaqua v City of Springfield, 46 Or LUBA 134, 174 (2004). When a state highway is involved, the applicable transportation system plan is the OHP. ODOT v City of Klamath Falls, 39 Or LUBA 641, aff'd 177 Or App 1, 5, 34 P3d 667, 669 (2001). MOU Contribution to ODOT The Hearings Officer also states that the County Transportation System Plan identifies this intersection as the site of a future interchange and that all the Applicant has to do here is meet the conditions of a memorandum of understanding ("MOU") with ODOT. (HO Decision, p. 46) Such pledges of future contributions to ODOT projects not even in the planning horizon do nothing to keep the increased traffic from significantly affecting the intersection. While hundreds of cars will be added to the intersection, with resulting scores of accidents, nothing will be done. 1 See my related letter on calculation of traffic numbers. Exhibit H Page of et)La3 December 19, 2005 Page 3 The December 2000 Cooperative Improvement Agreement between Eagle Crest and ODOT is instructive, where Eagle Crest agreed to, contribute $240,000 toward the interchange if the project is included in the State Transportation Improvement Plan ("STIP"), where construction was predicted in five years at a 1999 cost of two million dollars, and where ODOT agreed to return the money if the interchange does not occur. It is now just over five years later, and no interchange has been built or is even planned and no interchange is included in the STIP. As the traffic engineer, Scott Ferguson, observed: "Overall, it appears that requirements of the Deschutes County Code are not met. There is no plan to address the safety and capacity problems in Tumalo. The impacts of the project are significant on Highway 20. One option under the Deschutes County Code is `providing' the needed street infrastructure. The applicant claims that they do by agreeing to help fund a portion of the future interchange. While the timing of such improvements is subject to negotiation under Deschutes County Code, agreeing to make a future cash contribution towards an interchange in Tumalo - for which there is no project listed in the STIP (the State's Capital Improvement Program); no assurances of funding; no identification of a horizon year when the interchange would be built; no functional plan; no realistic cost estimates; and no traffic analysis of the interchange - is not the same as `providing' the improvement. The MOU between ODOT and Eagle Crest in 2000 stated that the interchange `will be needed in approximately five (5) years.' It has been five years; the intersection is needed; but no action has been taken. Eagle Crest MOU is evidence that allowing this sort of MOU provides no reasonable assurance that needed improvements will be built within the envisioned timeframes." (Ferguson Report 10/12/05,p. 2) Proposed Finding We respectfully request that the Board deny this application with this finding: "The traffic impacts from the proposed resort will significantly affect the Cook Avenue/Highway 20 intersection in Tumalo. The development is not consistent with the identified function, capacity and level of service of the facility and the Applicant has failed to answer this failure either by limiting the development or providing transportation facilities adequate to support the proposed development or altering land use densities or designs to reduce demand for automobile travel needs. We consider the analysis of Scott Ferguson to be the most credible expert report." Respectfully submitted, PAUL DEWEY Exhibit A Page -L9 of Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdeweygbendcable.com December 19, 2005 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 Re: Board Hearing on Proposed Thornburgh Resort; CU-05-20 Letter #2: Other Inadequacies of the Applicant's Traffic Analyses Dear Commissioners: The Hearings Officer failed to address a number of serious inadequacies in the Applicant's traffic analyses. They include the failure to provide information and analyses on key roads and intersections and a systematic underestimation of traffic counts and impacts. The Failure to Provide Information and Analysis on Key Roads and Intersections Examples of the Applicant's failure to provide information and analysis on key roads and intersections are: The intersections of Fifth Street and Seventh Street with Highway 20 in Tumalo. The Applicant only looked at the intersections of Fifth and Seventh Streets with Cline Falls Highway, but not with their intersections with Highway 20. These intersections are particularly important given the number of accidents and their severity on this high speed highway. The number of accidents at Seventh Street and Highway 20 nearly totals the amount at Cook Avenue and Highway 20. 2. The development's second access to Cline Falls Highway. Inexplicably, the Applicant's traffic engineer did not analyze the Applicant's second access to the Cline Falls Highway just to the south of the access they did examine. Any traffic analysis of a development must address all access points to the development. 3. Cline Falls Highway. Cline Falls Highway is listed as a rural minor arterial in the County Transportation System Plan. However, rather than the 30-foot minimum design width for such an arterial, it is actually only 22- 24-feet wide and in need of $2,350,000 to be widened and overlaid. This is a priority project as identified in Exhibit B, page 2, of Resolution No. 2005-088. The Applicant identifies the current Average Daily Trips (ADT) as 3,000-7,000 in its Exhibit B-1.22a, page 5. Table 5.2.T2 identifies 13,500 ADTs as the acceptable level of service of "D" for arterials. The Applicant provides no analysis of what the acceptable standard or level of ADTs is for a substandard arterial. Exhibit H Page Zp of as 3 December 19, 2005 Page 2 4. Helmholtz Way and other west side Redmond roads The Applicant does not analyze any roads on the west side of Redmond in terms of impacts from the development. The closest point of analysis is the intersection of Highway 126 and Eagle Crest Boulevard. (B-1.22a, p. 16) The Applicant does not explain why it examined a number of intersections several miles away in downtown Tumalo but failed to analyze even closer streets on the west side of Redmond. The Applicant's Systematic Underestimation of Traffic Counts and Impacts Three examples of this understating of effects include: 1. Calculation of numbers at Highway 20/Cook Avenue intersection. The Applicant's traffic engineer is Group MacKenzie. Group MacKenzie consistently understated impacts, not only in comparison to the analysis by Ferguson and Associates but also in comparison to what was done for Eagle Crest III by Kittleson and Associates. Group MacKenzie's TIA (12/8/04) and Revised TIA (6/30/05) showed only 119 existing left-hand turns from Cook Avenue to Highway 20 in 2004. (Ex. B-22, Fig. 3) The Eagle Crest III TIA by Kittleson and Associates actually showed 145 such turns in 1999, five years earlier. The Applicant's numbers show an illogical substantial decrease in traffic use over five years. The Applicant also predicted a background count in 2009 of 141 for this left turn (Ex. B-22, Fig. 5), while Eagle Crest III predicted 230. The Applicant in its Revised TIAs did not give a 2005 figure. As for the development impact, the Applicant first predicted that the full development's impact on the left-hand turn to be only 61 vehicle trips by 2015 (Ex. B-22, Fig. 9), to add to a 2015 background of 204 turns (Ex. B-22, Fig. 6). Then the Applicant reduced its numbers in a Revised TIA of 6/30/05 to show the full development impact of only 42 (17 Tribute and 25 Pinnacle) vehicle trips on top of a reduced 2015 background of 193 (6/30/05 TIA, Fig. 7a, 7b and 6). Then the Applicant decided to change its numbers a third time on 8/16/05 to show a full development impact of only 47 (19 Tribute and 28 Pinnacle) on top of a 2015 background of 163. (8/16/05 TIA, Fig. 3b, 7b, 8b, 9b) The transportation engineering company, Ferguson and Associates, determined that with 30-40% of the resort's total trip generation traveling to and from Bend via Tumalo, 284-378 new p.m. peak hour trips would be added to the intersection. (Ferguson Report 7/14/05, pp 21-22) 2. Calculation of percentage of traffic to and from Bend. The Thornburgh TIA predicts only 20% of its traffic to go to and from Bend via Tumalo, while Ferguson and Associates found that 30% of the Eagle Crest traffic did so. (Ferguson Report 8/17/05, p. 3) Since the Thornburgh Resort would be several miles closer to Bend, at least the 30% rate should be used. 3. Calculation of trip generation. The third version of the Thornburgh TIA predicted only 517 p.m. peak hour trips. (Ex. B-1.22a, p. 13) In contrast, Ferguson and Associates predicted a minimum of 705 and a maximum of 1,215 trips based on actual counts at Eagle Crest. (Ferguson Report 8/17/05, pp. 1-2) Apparently one Exhibit H Page 2-1 of a December 19, 2005 Page 3 reason for the discrepancy is that the Applicant's engineer assumed very limited public and even resort visitor use of the facilities. See Ex. B-1.22a, p. 13. This estimation of use by the Applicant's traffic engineer differs from the description by the attorneys which represented that the "guests" of the resort could use the Tribute golf courses and that most of the proposed Pinnacle Village, including the golf course, would be accessible to the general public. (Applicant's Burden of Proof, p. 10) In contrast, the traffic engineer assumed: "Thornburgh is primarily private. The Tribute golf courses are for exclusive use of the private residents and the Pinnacle Golf Course is for the use of private residents and hotel guests. None of the courses will be open to the general public." (Ex. B- 1.22a, p. 9) The Applicant's Response to These Inadequacies The Applicant's response to our extensive list of inadequacies of the TIA was that even if they were all valid, there is nothing to suggest that the TIA conclusions are invalid. (Applicant's 9/28/05 Response, p. 20) To the contrary, it is actually the Applicant that has the burden of proof here and if its evidence is based on faulty analysis in its traffic analyses, then it has failed to present "substantial evidence" as required by the law. The purpose of the technical analysis is to validate the Applicant's conclusions. Then in its "Final Argument" to the Hearings Officer, the Applicant merely states: "Applicant cannot be expected to respond in a narrative statement to each of the numerous technical arguments made by Gould's traffic expert, since neither the public participants, the attorneys, nor the Hearings Officer are experts in traffic engineering, able to resolve a battle of experts." (Applicant's 10/19/05 Letter, p. 12) Legal Standards DCC 18.113.050(B)(2) requires a traffic study which addresses "1) impacts on affected County, city and state road systems and 2) transportation improvements necessary to mitigate any such impacts." DCC 18.113.060(C) requires direct access onto a state or County arterial or collector roadway. DCC 18.113.070(G) requires that development significantly affecting a transportation facility be made consistent with the identified function, capacity and level of service of that facility and DCC 18.128.015 requires adequate transportation access and compatibility for the development. Proposed Findings of Fact We respectfully suggest the following finding by the Board: "The Applicant has failed to sustain its burden of proof for traffic-related impacts in its preparation of a traffic study and determination of impacts from the proposed development. Significant intersections and roadways were omitted in its analysis and its statements of impacts are understated. We find the expert Ferguson and Associates to be more credible in its analysis of transportation impacts of the proposed development." Very trul yours, PAUL DEWEY Exhibit _H Page 22 of a.43 S Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdewe ya,bendcable.com December 19, 2005 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 Re: Board Hearing on Proposed Thornburgh Resort; CU-05-20 Letter #3: Reasons Why This Proposal Fails to Qualify as a Destination Resort Dear Commissioners: On behalf of my client, Nunzie Gould, I am writing to address the reasons why the Applicant's proposal fails to qualify as a destination resort. The Hearings Officer only addressed the overnight housing. Overnight Housing The Hearings Officer correctly determined that the Applicant failed to meet the definition of a destination resort by failing to provide the required ratio of overnight housing to single-family residential units. This is a fundamental requirement of the state law allowing for destination resorts. The objective of such resorts is to bring visitors to the area, not to create rural communities. ORS 197.440. We do not yet know how the Applicant intends to respond to the Hearings Officer's Decision on this issue, but we do wish to bring to the attention of the Board the numerous times and ways in which the Applicant has shuffled its housing deck. The first traffic impact analysis assumed there would be 360 single-family homes while the economic report assumed that there would 1,100 single-family homes, for example. There has also been a steady shift in description between "cottages," "condos," and other types of accommodations. They increased the number of cottages from 100 to 250, reduced condos/timeshares from 300 to 175 and ended up reducing single-family homes from 1,000 to 950. (App's Ex. A-1.5, B-1.66) Two Separate Villages The Applicant is impermissibly seeking approval of a rural subdivision (the Tribute) in the guise of being associated with a proposed resort (the Pinnacle). There are two separate elements, or "villages," to this proposal, the Pinnacle (to the north) and the Tribute (to the south). The Hearings Officer described the two villages: Exhibit 44 Page 2 3 of OQ3 i December 19, 2005 Page 2 "The first village, The Tribute at Thornburgh (`The Tribute') will be located primarily in the southern half of the property, with access from Cline Falls Highway.... The Tribute will be a `golf course residential community' comprised of two golf courses, a golf practice area, golf clubhouse, community center, 50 golf cottages and `650 luxury view-oriented houses on lots of various sizes on the hillside.' BOP 25. The two golf courses within the Tribute Village complex are proposed to be reserved for residents/property owners and their guests, and are not proposed to be made available to overnight guests or the public. The second village, The Pinnacle at Thornburgh (`The Pinnacle'), will be located primarily in the northern half of the property. This village is planned as a resort and residential community comprised of one golf course, a 50-room resort hotel, resort retail area, recreational lake, a lake/boating clubhouse, and 350 individually owned, resort-style residences." (HO Decision, p. 4) The Applicant's traffic engineer further described the proposal: "Thornburgh is primarily private. The Tribute golf courses are for exclusive use of the private residents and The Pinnacle golf course is for the use of private residents and hotel guests. None of the courses will be open to the general public." (Ex. B- 1.22a, p. 11)1 Not only are these two separate areas, but they are proposed to be connected on not-yet- approved DSL-BLM roads. The proposed DSL-BLM roads and access are also not in the County's destination resort overlay zone. Further, only the Tribute connects with a County arterial or collector as required by DCC 18.113.060(C). Under this arrangement, the proposal fails to qualify as a destination resort in at least the following ways: 1. The Tribute is merely a private residential community, lacking the required ratio of overnight housing, the minimum number of overnight units (ORS 197.445(4)), the required "visitor-oriented accommodations" (ORS 197.435(8)), and the required recreation facilities open to visitors and the public. 2. The two villages cannot be considered "a resort" where they are only connected by proposed access roads which are not covered by the County's destination resort overlay zone. These would not be County roads or roads for use by the public. ' Note, again, the inconsistencies on description of use of the golf courses and the 1,000 versus 950 single-family homes. Exhibit 44 Page 4~ of _a a 3 December 19, 2005 Page 3 3. The Pinnacle fails to meet the criteria for a resort where it is not directly connected to a County arterial or collector road under DCC 18.113.060(C). Even if BLM access is granted for a road to access Highway 126, the Pinnacle resort land does not directly connect with a collector or arterial. 4. The Applicant has failed to show that each "village" separately meets the destination resort criteria, including overnight housing, visitor-oriented accommodations, etc. Proposed Finding We respectfully request that the Board deny this application on the basis of the following finding: "Where there are two separate `villages' which are proposed to be connected by roads not under the County's destination resort overlay zone, the proposal fails to qualify as a destination resort for each of the following reasons: 1. The village called the Tribute lacks the required ratio of overnight housing, the minimum number of overnight units, the required recreational facilities open to visitors and the public and other visitor-oriented accommodations. 2. The two villages cannot be considered a single resort where they are only connected by proposed access roads not under the County's destination resort overlay zone and which would not be County roads or roads for use by the public. 3. The Pinnacle fails to meet the criteria for a resort where it is not directly connected to a County arterial or collector road under DCC 18.113.060(C). 4. The Applicant has failed to sustain its burden of proof that each of the villages separately meets all the destination resort criteria." Very truly yours, PAUL DEWEY PD:ao cc: Client Exhibit 4 Page 25 of aa3 i Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdewey@bendcable.com December 19, 2005 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 Re: Board Hearing on Proposed Thornburgh Resort; CU-05-20 Letter #4: The Applicant's Failure to Meet Financial Resource and Assurance Standards Dear Commissioners: On behalf of my client, Nunzie Gould, I am writing to explain how the Applicant has failed to meet its burden of proof on the following Code criteria of DCC 18.113.070(C): "1. The necessary financial resources are available for the applicant to undertake the development consistent with the minimum investment requirements established by DCC 18.113. 2. Appropriate assurance has been submitted by lending institutions or other financial entities that the developer has or can reasonably obtain adequate financial support for the proposal once approved." The Applicant's only submittals to satisfy these criteria are the attached letter from a U.S. Bank Vice President and two business reference letters. The Hearings Officer concluded that these materials were sufficient "in the absence of specific evidence to the contrary" (HO Decision, p. 42), though we explained that the U.S. Bank letter failed to identify the individuals it was referring to and that the worth of the individuals is irrelevant where the Applicant is a limited liability company where individuals and their wealth are separate from and not liable with the LLC. The attached expert witness letter by Ed Whitelaw of ECONorthwest further substantiates our position that the Applicant's evidence is not sufficient and does not meet even basic standards for proof of financial resources and assurance. In addition, it has recently come to light that the two principal members, Kameron DeLashmutt and David Chapman (according to an attached e-mail from Linda Swearingen and Kameron DeLashmutt), have been involved in a variety of legal matters and disputes. These include from Mr. DeLashmutt: Exhibit #4 Page 2 (P of aa3 December 19, 2005 Page 2 2003 Chapter 13 bankruptcy (Case No. 302-42737) (dismissed) 1988 Blair v. RBR Design, Kameron DeLashmutt, et al. (Case No. A8812-06887) (securities law violations civil suit) (settled) 1988 Delivery of a Controlled Substance - Cocaine (C88-09-36554) (conviction) 1988 Possession of a Controlled Substance - Cocaine (C88-10-36932) (conviction) Examples for Mr. Chapman and Tradition Resort include: 2004 Cummings v. The Tradition (INC045944) (breach of contract civil suit) (ongoing) 2004 Putman v. The Tradition (RIC435967) (negligent misrepresentation re property line) (ongoing) 2002 Wehrly v. The Tradition, David Chapman, et al. (INC020407) (fraud and breach of contract civil suit) (settled) 2002 Gerstel v. The Tradition (INC025461) (mandamus) (settled) Copies of records relevant to the above cases are being provided to the Board. Attached to this letter is a recent article from The Bulletin regarding some of the above matters and even some additional cases. In light of the above legal matters, we believe it is incumbent for the Board to require more proof than has been provided by the Applicant. Proposed Finding We respectfully request the Board to deny this application on the basis of the following finding: "The Applicant did not sustain its burden of proof on the criteria of DCC 18.113.070(C) where it failed to provide sufficient information on the individuals involved, their wealth and credit history, and the financial resources and history of Thornburgh Resort Company, LLC and to give adequate financial assurance for the development." Sincerely yours, 2 tEWEY PD:ao Attachments cc: Client Exhibit Page_ of ECONofthwest ECONOMICS • FI NANCE • PLANNI NG Phone • (541) 687-0051 Suite 400 FAX • (541) 344-0562 99 W. 10th Avenue info@eugene.econw.com Eugene, Oregon 97401-3001 December 16, 2005 Paul D. Dewey 1539 NW Vicksburg Bend, OR 97701 Other Offices Portland • (503) 222-6060 Seattle • (206) 622-2403 Re: Evidence of financial resources and support for the proposed Thornburgh Resort. Dear Mr. Dewey: Based on our review of the information you provided, and on financial-feasibility requirements commonly used by local and regional jurisdictions, I conclude, that the proponents of the Thornburgh Resort have not provided adequate supporting information regarding their financial capability to develop the resort. Specifically, the proponents did not identify funding sources, any financial judgments assessed against them in the past or pending litigation that may result in financial penalties, or any loans they may have defaulted on. As we understand, section 18.113.070 of the Deschutes County Code (DCC) requires that potential developers of destination resorts conduct an economic analysis that demonstrates: "1 The necessary financial resources are available for the applicant to undertake the development consistent with the minimum investment requirements established by DCC 18.113." "2. Appropriate assurance has been submitted by lending institutions or other financial entities that the developer has or can reasonably obtain adequate financial support for the proposal once approved." Also as we understand, the only evidence of financial resources submitted by the proponents consisted of a letter from Mr. Wes Wright, an employee of the US Bank branch in Bend, Oregon.' In his letter, Mr. Wright noted that the combined net worth of the "Thornburgh Resort members" exceeded "a mid eight-figure amount," and that they are "capable of developing their proposed project with multiple sources of development financing that is available in the marketplace." Based on this record of information I conclude that the proponents have not demonstrated that the "necessary financial resources are available" or that they have secured "adequate financial support" to develop the $160 million project.z Nor have the developers demonstrated that they 1 The proponents submitted two letters of support from business references, but these letters do not address the financial capacity of the proponents to develop the Thornburgh Resort. 2 "Table N-1 Summary of Assumed Project-Wide Costs - Thornburgh Resort. Source: Peterson Economics." Exhibit f4 Page 2 8- of a,~_ 3 16 December 2005 Page 2 can reasonably obtain such financial support. The extent to which they can obtain the necessary financial backing depends on factors that the proponents have not described. These factors include: • The proponents' credit ratings • The extent to which the proponents, or their corporate entities, have affiliations with other corporate entities, or are subsidiaries of other entities • The status of current and past loans and any defaults on loans • The extent to which the credit history of the proponents, or their corporate entities, includes bankruptcy filings • The extent to which the proponents, or their corporate entities, are the subject of past or ongoing litigation Mr. Wright's letter also fails to identify the individual "Thornburgh Resort member" or their affiliations or corporate entities. That is, it is not clear if Mr. Wright's comments apply to all the relevant parties or to a subset of the developers at issue in this matter. Also, Mr. Wright notes that Mr. Chapman developed projects similar to the proposed Thornburgh Resort, but provides no specifics. Detailed information on issues such as the role Mr. Chapman played in these other developments, the amount he invested in the projects, if ELny, and the type of financing for each project would help address these uncertainties regarding Mr. Chapman. As Mr. Wright notes, financing for a project such as the Thornburgh Resort may be available in the marketplace, but the proponents have not demonstrated that they can secure such financing, or, if they could secure financing, at what cost. The cost of financing can affect the financial feasibility of the project. As an example of the types of information that other jurisdictions request of developers, I attach as an exhibit to this letter the Portland Development Commission's (PDC) "Developer's Statement of Financial Capability" (Statement). Mr. Wright's letter addresses none of the criteria described in the PDC Statement. Finally, the proponents have not identified a single source of funding. Potential sources could include cash, sale of stock, sale of assets, and debt financing. Each of these sources has implications for, and may raise questions about, the financial capability of funding the entire project. Another relevant factor that the proponents have not described is the amount of funds that would be contributed or secured by the individual proponents rather than by corporate partners or shareholders. Sincerely, e Ed Whitelaw President, ECONorthwest Professor (emeritus), Department of Economics, University of Oregon (vita attached) Exhibit 44 Page a-. 9 of g Attachment D PDC PORTLAND DEVELOPMENT COMMISSION Purpose/Instructions: The following information will be used by the Portland Development Commission in determining whether or not the identified Development Entity has, in the opinion 'of the Portland Development Commission, the financial capability to successfully. complete the PDC project for which they have been selected, or are seeking financial assistance. NOTE: In accordance with ORS 192.502.23, PDC, considers this information as a public record exempt from disclosure under ORS 192.410 to 192.505. This Form has been created in Word, and formatted to accept input in shaded fields only. Use the TAB key to advance to the next field; SHIFT-TAB to go back. Lines will wrap as necessary. Answer ALL questions. If you need to submit attachments in response to, or explanation of, a specific question, please reference the appropriate question number on the attachment. A. Submission Information (complete all that apply): 1. This Statement is being submitted as required by a PDC solicitation: PDC Solicitation Project Name: 2. This Statement is being submitted as required by an application or request for financial assistance: a. PDC department/project manager requesting information: b. Type of Financial Assistance Requested: c. Project Name: 3. This information is an update to a previously submitted Statement of Qualifications submitted on (date): [Note: complete entire form] B. Development Entity Information 1. Official Company/Entity Name: 2. Mailing Address: State/Zip: 3. If at this address less than 1 year, prior address: 4. Primary contact regarding this information: 5. Telephone Number: C. Development Entity. The Development Entity named above is: ❑ A sole proprietorship - Soc. Sec. # ❑ A corporation - FID # Exhibit -H Page 3 0 of :~-La3 For official and confidential use by the Portland Development Commission ❑ A nonprofit or charitable institution or corporation - FID # ❑ A partnership - FID # ❑ A business association or a joint venture - FID # ❑ A limited liability company - FID # ❑ A Federal, State, or local government or instrumentality thereof ❑ Other / explain: D. Date and State of Organization. If the Development Entity is not an individual or a government agency or instrumentality: 1. Date of organization: 2. State of organization: E. Development Entity Principals. Names of owners, officers, directors, trustees, and principal representatives of the Development Entity: Description of . % of Name, Address, ZIP Code Interest/ Relationship op Interest F. Development Entity Affiliations. Is the Development Entity a subsidiary of, or affiliated with, any other corporation or corporations or any other firm or firms? ❑ Yes ❑ No If Yes, provide the following information: Relationship to Common Corporation / Firm Development Officers/ Directors Entity Name Address Name Address G. Bankruptcy. Has the Development Entity or the parent corporation (if any), or any subsidiary or affiliated corporation of the Development Entity or said parent Developer's Statement of Financial Capability Page 2 PDC Form: nemod-'` Exhibit 4 corporation, or any of the Development Entity's officers or principal members, shareholders or investors filed for bankruptcy, either voluntary or involuntary, within the past 10 years? ❑ Yes ❑ No If Yes, provide the following information: Name Court Date Status H. Loan Defaults. Has the Development Entity or the parent corporation (if any), or any subsidiary or affiliated corporation of the Development Entity or said parent corporation, or any of the Development Entity's officers or principal members, shareholders or investors defaulted on a loan or other financial obligation? ❑ Yes ❑ No If Yes, explain: 1. Litigation. Is the Development Entity or the parent corporation (if any), or any subsidiary or affiliated corporation of the Development Entity or said parent corporation, or any of the Development Entity's officers or principal members, shareholders or investors party to any pending criminal or civil litigation that could potentially impact the financial capability of the Development Entity to complete the proposed development? ❑ Yes ❑ No If Yes, provide the following information, and attach any additional information or explanation deemed necessary: Date Filed Court Current Status J. Cost Estimates. Attach a copy of a development feasibility study, or other report or study containing the estimate and methodology for making the estimate, of the total project development costs. K. Sources of Funds. Provide an itemization of the sources of funds to be used to pay for the development project. 1. If a source of funds is a financial institution or investment group, provide a copy of a letter of intent or commitment to fund. 2. If a source of funds is from the Development Entity, explain the source of funds such as: cash on hand, sale of stock, sale of assets (identify), other (explain). 3. If a source of funds is from individual owners, partners or shareholders of the Development Entity, for the person providing the funds submit, a. Current (within 90 days) personal financial statement b. Full Federal Tax Returns for last three years Developer's Statement of Financial Capability Page 3 PDC Form: nemod/J-°- Exhibit ti Page _3 2 _ of ~3 4. If a source of funds is unknown, or from any other source, provide an explanation and any appropriate documentation. L. Financial Condition. Attach to this statement a certified financial statement showing the assets and the liabilities, including contingent liabilities, of the Developer Entity fully itemized in accordance with accepted accounting standards. To be certified, the statement must contain an auditor's opinion, or be compiled/prepared by a certified public accountant (CPA) or public accountant (PA). If the date of this certified financial statement precedes the date of this submission by more than six months, also attach an interim balance sheet not more than 60 days old. M. Previous PDC Assistance. Has the Development Entity or the parent corporation (if any), or any subsidiary or affiliated corporation of the Development Entity or said parent corporation, or any of the Development Entity's officers or principal members, shareholders or investors received any previous financial assistance from PDC for a development project? ❑ Yes ❑ No: Project Name Assistance Provided by PDC Date N. Conflict of Interest (Section 2.606 Charter of City of Portland). Does the Development Entity currently have or plan to have as an officer, member, employee, shareholder, investor or financing partner of the Entity any person who is currently an officer, agent, or employee of the City of Portland, its bureaus, boards or commissions (including PDC). ❑ Yes ❑ No If Yes, identify and explain: 2. If Yes, does anyone identified above (N-1) have direct or indirect pecuniary interest in the Development Entity or in the redevelopment or rehabilitation of the property being proposed by the Development Entity to PDC? ❑ Yes ❑ No a. If Yes, describe and explain: 0. Additional Information. Attach any additional evidence deemed helpful to demonstrate the Development Entity's financial capacity and capability to complete the proposed development. Developer's Statement of Financial Capability Page 4 PDC Form: nemod'' Exhibit Page of aa3 CERTIFICATION I1 certify under penalty of perjury under the laws of the State of Oregon that I am authorized to submit this information on behalf of the Development Entity and that the statements made in this Statement of Financial Capability are true and correct.z I further authorize the Portland Development Commission, or any employee or agent acting on behalf of the Portland Development Commission, to undertake any investigation deemed appropriate to verify the information contained herein. Printed Name Signature Date ♦;FOR PDC USE ONLY Routing Received by: ❑ Copy to project manager Date: ❑ Original to Professional Services master file t If the Development Entity is an individual, this statement should be signed by such individual; if a partnership, by one of the partners; if a corporation or other entity, by one of its chief officers having knowledge of the facts required by this statement. 2 ORS 162.055 to 162.425 makes it a crime to knowingly make a false statement to a public servant with regard to a material issue. Such false statement is a Class C Felony punishable by up to 5 years in prison and/or a fine of $100,000. Developer's Statement of Financial Capability Page 5 PDC Form: nemod Exhibit Page 3 of a a Title Thornburgh backersfaced legal troubles By Chris Barker 12A v45 The Bulletin Three years ago, Kameron DeLashmutt was more than $200,000 in debt, according to federal bankruptcy records. Today, the 46-year-old Redmond entrepreneur is a principal figure behind Thornburgh Resort, a $160 million plan to wrap three 18-hole golf cours- es, 950 homes and 475 units of overnight lodging around the southwestern shoulder of Cline Buttes. Thornburgh, one of the largest destination re- sort proposals in Deschutes County history, will go before the county commission on Tuesday for land use approval. At the center of the project is DeLashmutt, who in the last two decades has faced two bank- ruptcies, a lawsuit over his business dealings and two cocaine-related convictions, government documents show. He also owes the state more than $20,000 for failing to comply with workers' compensation laws. Opponents of the resort say DeLashmutt's past legal issues - in addition to a civil lawsuit filed against his partner, California developer David Chapman - raise questions about whether tax- payers could be on the hook if Thornburgh fails. My, concern is whether the proposed Thorn- burgh Resort would be developed as has been represented and, if not, whether the county could handle the resulting problems and potential ba bilities," said Paul Dewey, a Fiend attorney repre senting.Tumalo resident Nunzie Gould, who op- poses the resort. .Since his legal issues, DeLashmutt has suc- cessfully developed housing lots in Redmond, and experts say prior bankruptcy is unlikely to deter banks from financing the project. DeLash- mutt declined to be interviewed. He discussed Thornburgh in two a-mails to The Bulletin. "For Thornburgh, the value of the project, cou- pled-with the financial strength and experience of my business partners and the experience of the team around us, brings the highest chance of success. there could possibly be," he wrote. See Thornburgh /A10 Thornburgh Continued from Al A "world class resort" Thornburgh would transform a High Desert ranch with views of the Cascades into an upscale mix of homes, condos, golf courses and recreational amenities - a "world class resort," say plans submitted to the county in Febru- ary 2005. Ben Crenshaw and Bill Coore - designers of Bandon Trails, a golf course at Bandon Dunes on the Oregon Coast - will design one of the courses, Thornburgh officials have said. Arnold Palmer Course Design would design another course, the application states. Chapman, who developed an exclusive resort called The Tradi- tion Golf Club in La Quinta, Calif., will manage the Thorn- burgh project as a partner, De- Lashmutt said by e-mail. In a letter addressed to Kevin Harrison, principal planner for Deschutes County, Palmer praised Chapman as a "perfec- tionist." "I would certainly recommend David for any development en- deavor you might be considering with him," Palmer wrote. DeLashmutt, who most recent- ly developed subdivisions in Red- mond, will have a key role in Thornburgh, according to the re- sort's application. DeLashmutt's grandfather, Everett Thornburgh, owns the majority of the property that would become the resort. Chapman brings the money to the project, according to Linda Swearingen, a destination resort lobbyist who's working for Thornburgh. "This resort is dependent upon David Chapman's financial con- tribution, not Kameron's," wrote Swearingen, in an e-mail to The Bulletin. "Kameron brought the land to the partnership and David has brought the money, market- ing, and the destination resort ex- perience. Without David, there wouldn't be a project." Exhibit 4 Page of a ;k-3 Money in the bank Proposed Thornburgh Resort Deschutes County requires that destination resort developers P prove that they can "reasonably r°~e obtain adequate financial sup- " a port for a destination resort be- fore a permit to build is issued. Thornburgh met that require- m P -Clme<Eails Nlghlantl Auey Eagle Crest " s P k ment, according to Anne Corco- tate ar ran Briggs, a county hearings of- CIinp Buttes ficer who reviewed the resort's , REDnND permit application. 1 Wes Wright, a Bend-based \S " U.S. Bank vice president, vouched for Thornburgh in a let- ter addressed to Deschutes Coun- ty planners on Feb. 4. Greg Cross / The Bulletin Wright wrote that the mem- bers of Thornburgh Resort Co. improvements are completed. LLC had "a combined net worth When developers secure a exceeding a mid-eight-figure bond for improvements, county amount. officials also check to see if the An official with U.S. Bank de- bonding company has the funds clined to discuss Thornburgh's fi- to loan the money, Cra head g nancial backers. DeLashmutt, in said. an e-mail to The Bulletin, said the In a worst-case scenario, she letter refers to-himself, Chapman said, the amount of the bond ' and Gary Maddox, wouldn t cover the completion of The county rules are intended the project. But no destination re- to to ensure that a developer has the sort she added, has develon money to build a destination re- ever aband ed construction in sort, said Harrison, the county Deschutes County. planner. Bob Cortright, a state Depart-. "I think what it does is it lends ment of Land Conservation and some credibility to the applicant Development official familiar „ for a destination resort " Harrison with destination resort develop- , said. "I think if we are going to go ment, can't remember a case in through this exercise we want to Oregon when a developer ran out have someone with the financial of cash and left taxpayers to fin- wherewithal to see it through." ish a project. Once a permit is issued, desti- DeLashmutt said in an e-mail nation resort developers typically that he has the money to com- begin selling homes first, setting plete the project. side money for future improve- aside Genesis Development Group, a ments such as golf courses, roads company affiliated with DeLash- or overnight housing, said Laurie mutt and Thornburgh Resort Co., Craghead, deputy counsel for De- has access to million i schutes bounty. credit from two local ocal banks; De- De- That money - typically amounting to 120 percent of the Lashmutt said. Deschutes County should estimated cost of the improve- what it can to ensure that Thorn- ments - is put into a bond con- burgh can complete the project trolled by the county, Craghead because large resorts can have said. significant impacts on rural areas This acts as a kind of insurance and the environment, said policy for the county. If a resort Dewey, opponent's attorney. " developer runs out of money to If there are questions about ' finish a project, the county can o (DeLashmutt s) financial back- cash out the bond t ensure that ground, or that of others involved with the development, then we are concerned," Dewey said. Exhibit 4-t Page -(P of as Legal history was to "resolve the financial diffi- doeumented culties" of the partners in the DeLashmutt and Chapman, company. The lawsuit was settled on July the two primary partners in 31, 1990, according to a protec- Thornburgh, are chronicled in tive order signed by Circuit Court state and federal court records. Judge Lee Johnson. The judge or- On May 19, 1989, DeLashmutt dered that the settlement terms pleaded guilty to a charge of de- be kept secret. livery of cocaine ,and a second In an e-mail to The Bulletin, charge of cocaine possession, ac- DeLashmutt said he's "never cording to Multnomah County made misleading or untrue state- Circuit Court records. He was 29. ments to potential investors." In the plea agreement, DeLash- Also in 1990, DeLashmutt and mutt faced a maximum sentence Susan Kristina DeLashmutt, his of 25 years on the charges. A former wife, filed for Chapter 7 judge sentenced him to 24 days in bankruptcy protection. The cou- work release and five years of ple lived in Hillsboro at the time. probation. The majority of money owed In 1994, DeLashmutt "complet- by the DeLashmutts stemmed ed all special conditions of the I from $223,386 in medical bills, ac- court and has been no problem cording to federal records. while under probation supervi- " Typically, debt is forgiven sion, wrote Jim Dunaway, a Des- when a Chapter 7 bankruptcy is chutes County parole officer. discharged. A bankruptcy judge DeLashmutt said the conic- did just that on Nov. 20, 1990. tions have no bearing on his abili- Kameron DeLashmutt filed for ty to develop Thornburgh Resort. bankruptcy a second time in "I, like many people, have had 2003, according to federal events take place and done things records. of which they are not proud," De- This time, he sought Chapter Lashmutt wrote in an e-mail to 13 protection, which typically re- The Bulletin. "Fortunately for me, quires debtors to pay back some this conviction in 1989 did hap- of their debt under a schedule set pen. and it was a wake up call. by a.judge. When it happened, I realized I Records show a judge dis- had taken a wrong turn and that I missed the bankruptcy on Sept.. needed to get back on the right 29. 2003, after DeLashmutt fell road." behind on $18,726 worth of In 1990, 26 investors in an Ore- scheduled payments to his credi- gon corporation called. RBR De- tors. sign Embryonics sued the com- DeLashmutt said in an e-mail pany. DeLashmutt, a partner in that he voluntarily had the bank- the company, was one of several ruptcy dismissed so that he could named in the suit. repay his creditors. He said he The investors said in the law- negotiated to pay some creditors suit that RBR planned to raise a reduced amount and set up pay- money from investors to buy em- ment schedules with others. De- bryos and implant them into cat- Lashmutt said he has paid tle. Using money generated from $235,000 to creditors so far. the sale of semen, embryos and "It is important to note that un- calves, RBR intended to pay back der the bankruptcy I would have its investors. only paid $99,000 to date, none of The investors claimed that which would have gone to"unse- sales predictions never material- cured creditors," DeLashmutt ized. wrote. In addition, the investors al- DeLashmutt has also faced leged that DeLashmutt and RBR scrutiny from state regulators. had falsely claimed they were Omni Building Systems, a worth $2 million. The real goal of company founded by DeLash- RBR, according to the lawsuit, mutt, still owes money to the state, according to state court records. Exhibit 4-l Page _ 3 of X0'23 Omni, which built prefabricat- ed walls for use in construction at other sites, failed to maintain workers' compensation coverage as required by Oregon law from Dec. 12, 1998, to April 22, 1999, according to court records. Dur- ing that period, two employees were injured on the job, records show. As of Thursday, Omni and De- Lashmutt still owe $22,021 in penalties and interest to the Ore- gon Department of Consumer and Business Services, depart- ment spokesman Steve Corson said. DeLashmutt's partner in Thornburgh, Palm Springs devel- oper David Chapman, was until recently the target of a civil law- suit. A group of former property owners at The Tradition, a Cali- fornia golf resort he helped devel- op, filed the suit. They alleged in court documents that Chapman brokered the sale of lots at below- market prices to his associates. Then, those associates quickly sold the same lots at higher prices, sharing the profits with Chapman. The allegations in the lawsuit aren't true, said Brian Harnik, an attorney who represented Chap- man. "We had independent experts that verified that the prices were justified based on the market," said Harnik, who works for a law firm in Indian Wells, Calif. "The market trend was skyrocketing, what was happening is that the prices were going up and up and up. The 5-year-old lawsuit was re- cently settled, according to court records. Harnik said the settle- ment terms prohibited him from discussing the details. "There was an agreement in which all of the plaintiffs dis- missed all of the defendants," Harnik said. "The parties reached an amicable settlement. The good news is that everybody made money on these transactions, PUBLIC MEETING • A public hearing on ..Thornburgh Resort is scheduled for 9 a.m.,,, Tue day at the Deschutes Services" Buiilding;'1300 NWWall St. in Bend. even after the case ended. All liability and wrongdoing were denied as part of the settle- ment, Harnik said. Patrick Catalano, an attorney representing plaintiffs in the law- suit, couldn't be reached for com- ment. . Harnik, who said he's known Chapman personally for 10 years, said the California civil case will have no bearing on Chapman's chances of success in Central Oregon. "I think he's got a very excel- lent reputation in the community; he's not a fly-by-night operator," Harnik said. Development successes Despite his troubles, DeLash- mutt has achieved recent success as a developer, according to busi- ness associates and a planner for the city of Redmond. Recently, DeLashmutt has de- veloped 40 to 60 housing lots in the Redmond area, according to Eric Porter, a planner with the city of Redmond. His local pro- jects include the Bella Sera, Oak Hills; Poco Bella and Bella Vista subdivisions, DeLashmutt said. Dirk Duryee, owner of Bend- based Tye Engineering, said in a May 2004 reference letter that DeLashmutt has the ability to work well with the array of dif- ferent interests involved in a complex development project. The two have worked together on several occasions. . "Kameron is excellent at see- ing the big picture, which often encompasses schedule, cost, mar- keting and development aesthet- ics," Duryee wrote. John Kahlie, a principal with Bend-based Hickman, Williams & Associates, a surveying, engi- neering and planning firm, said DeLashmutt is one of the best de- velopers he's worked with over the course of his 30-year career. In a letter written Oct. 14, 2005, Kahlie said he has worked with DeLashmutt on Thornburgh since August 2004. Outside his business life, De- Lashmutt, a professed Christian, helped bring a Luis Palau Festi- val to Bend in July. Palau, a Port- land-based Christian evangelist, reaches out to youths with a Christian message. In the end, DeLashmutt's fi- nancial history may not be an ob- stacle to Thornburgh. It's unlikely that it would deter bankers from financing the pro- ject, said Steven Bender, a profes- sor at the University of Oregon School of Law who specializes in real estate transactions. "Number one, you're using oth- er people's money, and number two, there are checks and bal- ances," Bender said. "It's only go- ing to fly if third=party lenders who are going to carry the bulk of the load are on board." In addition, declaring bank- ruptcy no longer carries the stig- ma that it used to in the business world, said Andrea Coles Bjerre, a bankruptcy law professor at the University of Oregon School of Law. Real estate developers may also have more leverage garner- ing loans if the market is good, she added. "It could be no matter who this guy is that Bend real estate is hot enough that banks want to lend him the money no matter what his financial record is," Coles Bjerre said. . Chris Barker can be reached at 541-617-7829 or at cbarker@bendbulletih.com. Exhibit t4 Page 39' of ~a3 Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdewey2bendcable.com December 19, 2005 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR.97701 Re: Board Hearing on Proposed Thornburgh Resort; CU-05-20 Letter #5: Lack of Information to Sustain Applicant's Burden of Proof on Key Destination Resort Criteria Dear Commissioners: On behalf of Nunzie Gould, I am writing to identify a number of sections of the DCC and provisions of state law on which the Applicant has failed to sustain its burden of proof. For the most part, the Hearings Officer in her decision merely restated what the Applicant had represented, without considering the adequacy of the Applicant's information. 1. DCC 18.113.050(B)(10) and .070(I) require a description of the proposed method for providing emergency medical facilities and fire and police facilities and services and require adequate facilities for police and fire onsite. The Hearings Officer fails to address the requirement for onsite police and fire facilities (H.O. Decision, pp. 22-23) and the Applicant contends that onsite activities are not needed (App. 10/19/05 Memo, p. 48) DCC 18.113.070(I) clearly states: "Adequate public facilities to provide for necessary safety services such as police and fire will be provided on the site to serve the proposed development." This application should be rejected for failure to comply with the standard, identify the location and describe the services. 2. DCC 18.113.050(B)(12) requires an erosion control plan to be implemented during all phases of construction. The Hearings Officer refers to a report discussing erosion potential, mentions some general erosion control techniques and states that "efforts will be made" to avoid concentrating flow. (H.O. Decision, pp. 28-29) This does not satisfy the requirement for a Chapter 468 erosion control plan for disturbed land. 3. DCC 18.113.050(B)(11), (B)(13) and .070(L) require a description of proposed sewage disposal methods and the presentation of the wastewater disposal plan. The Hearings Officer merely describes aspects of the proposed plan (H.O. Decision, pp. 29 and 48) without answering Exhibit J+ Page of ~~-3 11 s December 19, 2005 Page 2 issues raised by the consulting firm ECO:LOGIC that the proposed treatment is inadequate where some of the effluent will percolate back to the aquifer, which should require advanced tertiary treatment. Plans to apply treated effluent on golf courses fail to explain disposal during the non-irrigation season. A comparison of the locations of sanitary drain fields relative to water supply wells is also needed. See these and additional issues in the 10/12/05 ECO:LOGIC Report, pages 4-5. 4. DCC 18.113.050(B)(14) and .070(H) require evacuation plans, but the "Wildfire/Natural Hazard Protection" Plan identified by the Hearings Officer at pages 30-31 merely discusses general principles of planning and gives no specifics on road design and does not even identify evacuation routes. 5. DCC 18.113.050(B)(18) and .070(C)(3) require a survey and assessment of housing availability for employees and commuting distance. The Hearings Officer merely identifies studies without addressing their adequacy (H.O. Decision, p. 32) and fails to address the fact that the Applicant did not correlate housing availability with income level and commuting distance. See also the attached Bulletin article on the lack of affordable housing. The resort's median income level of $21,000 is below the affordable level identified in the article. 6. DCC 18.113.060(G)(1) requires that dimensional standards (such as lot area, lot coverage, building heights, etc.) "shall be determined by...the Hearings Body at the time of the CMP." Despite that requirement, the Hearings Officer merely adopts the Applicant's "range of flexible" standards (such as 1,500 foot to one acre lots). (H.O. Decision, p. 38) Specific standards must be determined at this CMP stage. There is also no basis for the Hearings Officer's grant of a total exemption from solar access standards (because some residents may be part time). (H.O. Decision, pp. 39-40) 7. DCC 18.113.070(D) requires that any negative impact on wildlife resources be "completely mitigated" with no net loss or degradation of the resource. The Hearings Officer refers to the fact that there is a MOU with BLM, that the Applicant is "working with" ODFW and that mitigation measures, if implemented, will be adequate. (H.O. Decision, p. 44) The MOU is unenforceable by its own clear terms, "working with" ODFW is not precise enough and the mitigation measures are also not precise. 8. DCC 18.113.050(A)(8) and .070(E) require protection of important natural features, but the Hearings Officer concludes that there are none. (H.O. Decision, p. 44) The highly visible slopes and ridges of Cline Buttes are obviously important natural features in Central Oregon, as are the 1,000-year-old juniper trees. 9. DCC 18.113.070(M) requires mitigation of demands created on publicly-owned recreation facilities on surrounding public lands. The Hearings Officer merely finds that this requirement will be met if the Applicant implements its MOU with BLM. (H.O. Decision, p. 49) Again, though, the MOU makes it clear that it is unenforceable. 10. DCC 18.113.070(N) and (P) and the conditional use compatibility criteria of 18.128.015 require minimization of adverse effects of the development on surrounding lands and no Exhibit Page _r0 of a 3 December 19, 2005 Page 3 alteration of the character of the surrounding area that substantially impacts surrounding properties. A critical issue for the public is the impact of lighting, but the Hearings Officer found that the County lighting standards are adequate. (H.O. Decision, p. 49) The requirement here, though, is to minimize adverse effects and make the development compatible, not just comply with lighting standards, and such standards are not helpful here where the lighting is going to be elevated on the Cline Butte slopes. 11. DCC 18.113'.070(S) requires that temporary structures be approved as part of the CMP process. The Hearings Officer merely states that the structures and locations are identified in Exhibit 19 and B 1.12 without identifying them or approving them or saying by what standards they are approved. (H.O. Decision, p. 51) This development could cause substantial impacts and at a minimum require a review of site plan criteria. 12. DCC 18.113.050(B)(8) and (17) require a description of the proposed order and schedule for phasing of development and ensuring facility development. The Hearings Officer failed to require any specification and instead determined that significant flexibility is required to accommodate market demand. (H.O. Decision, p. 21) The Hearings Officer also mentioned only common areas and failed to address the issue of assuring facility development in each phase. (H.O. Decision, p. 32) These determinations fail to satisfy the required descriptions-in the Code. 13. DCC 18.113.060(A) and (E)(1) require compliance in the first and each phase with the specifications for a destination resort. The Applicant, however, fails to give the specifications because it wants to follow market "preferences." While the Hearings Officer appropriately found insufficient evidence for each phase (H.O. Decision, p. 37), she inappropriately suggested that a condition of approval of compliance could satisfy .060(A) without the Applicant having to show how compliance would be achieved. Proposed Finding Each of the above discussions of the criteria includes the basis for making a finding that the relevant criteria have not been met. Very truly yours, \Ja~ PAUL DEWEY PD:ao cc: Client Exhibit Page of X23 J Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 3174993 fax (541) 383-3470 pdeweygbendcable.com December 19, 2005 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 Re: Board Hearing on Proposed Thornburgh Resort; CU-05-20 Letter #6: Inadequate and Inappropriate Conditions of Approval Dear Commissioners: On behalf of Nunzie Gould, I am writing to explain why proposed conditions of approval are inadequate. The Hearings Officer identified certain criteria that could be satisfied with conditions of approval. Inexplicably, the Staff Report omits most of them. At a minimum, the Staff should have recommended the Conditions identified by the Hearings Officer or explained why they were being omitted. Examples (not a complete list) of omitted conditions are: 1. Restoration of native vegetation in areas disturbed by construction. (H.O. Decision, p. 17) 2. Assurance that density requirements are met. (H.O. Decision, p. 38) 3. Assurance of compliance with dimensional standards during each development phase. (H.O. Decision, p. 41) 4. Implementation of mitigation measures of TetraTech. (H.O. Decision, p. 44) 5. Compliance with the BLM MOU and particularly with respect to buffering from the Tumalo Canal ACEC, setbacks and buffers from the perimeter of the property and subdivision design and approval. (H.O. Decision, p. 49) The Conditions with regard to groundwater and wastewater recommended in the ECO:LOGIC Report would also be necessary, as well as full implementation of the BLM MOU. The Staff's Condition 8 on OWRD approval must be "prior to submission of the Final Master Plan." Condition 13 on Open Space is meaningless where it doesn't specify the guarantees or require them for all phases. Exhibit Page 42_ of ,P-D-3 December 19, 2005 Page 2 For all of these conditions, there has been an inadequate determination of feasibility, the conditions are too indefinite to determine feasibility, the public's right to comment on criteria is being inappropriately replaced by subsequent agency approvals and the Conditions are not adequately identifiable and enforceable. These conditions cannot make this inadequate and inappropriate application satisfy the requisite approval criteria. Conditions of approval cannot substitute for the Applicant's failure to sustain its burden of proof. Very truly yours, PAUL DEWEY PD:ao cc: Client Exhibit I Page of_ a. Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdeweygbendcable.com December 19, 2005 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 Re: Board Hearing on Proposed Thornburgh Resort; CU-05-20 Letter #7: Failure to Satisfy Criteria for Adequate Water Dear Commissioners: My client, Nunzie Gould, supports the Hearings Officer's decision that the Applicant "has failed to demonstrate that adequate water will be available to serve the resort." (H.O. Decision, p. 48) In addition, there are several other bases for rejecting the application for failure to meet the water criteria that were not addressed by the Hearings Officer. See our Supplemental Memorandum of 8/17/05, pp. 7-11, and our Response Memorandum of 10/12/05, pp. 37-41. We will address only three of the issues in this letter. Requirement for Water Mitigation The Applicant in its Response Memorandum, at page 29, has acknowledged that the groundwater permit it seeks actually requires mitigation and that it can be inferred that County approval standards require addressing the mitigation issue in order to make a finding that water is available for the proposed use. Where it has lined up only 325 temporary mitigation credits out of the 942 plus acre-feet of permanent mitigation credits it needs and where it has not shown where or how it will get the needed credits, the Applicant has clearly not sustained its burden of proof as found by the Hearings Officer. Rather than anticipate the Applicant's arguments in response to the Hearings Officer's decision, we will wait for the seven-day post-hearing briefing period to answer any issues that the Applicant raises on December 20. Low and Improper Calculation of Amount of Mitigation The Applicant is incorrectly seeking mitigation on the basis of being a quasi-municipal use when in fact its use is primarily irrigation (which requires much greater mitigation). The Applicant's calculation of 942 acre-feet of mitigation is low where a quasi-municipal calculation of 40% consumption of water is obviously wrong under the Oregon Administrative Rules. In contrast, Pronghorn's groundwater application separated its golf course irrigation use from its quasi- municipal use. While 40% of the water used for quasi-municipal use was deemed consumed, Exhibit----14 Page A of _0Q3_ December 19, 2005 Page 2 approximately 64% of the water used for irrigation was deemed to have been consumed. This greater consumption for irrigation means Thornburgh will be consuming far more than 942 acre- feet. With around five times more water going for irrigation than is used elsewhere, the consumption could be around 1,500 acre-feet or more. The definitions of "quasi-municipal water use" in OAR 690-300-0010(40) and "municipal water use" in subsection (29) do not address irrigation of golf courses. Rather, it is the definition of "irrigation" in OAR 690-300-0010(26) that gives an example of "irrigation" of a "golf course." When the golf course water use so predominates over other uses (over five million gallons per day versus only one million gallons per day for other uses), it should not be treated as a quasi- municipal use. The OWRD Mitigation Rules Are Not Valid The Applicant contends that legislation passed by the state legislature essentially reinstates the OWRD rules for the Deschutes Basin, even though the Court of Appeals had ruled that the rules are not consistent with the statute. The Legislature's disagreement with the Court on whether or not the rules are consistent with the statutes, as embodied in the legislation passed this summer, is invalid and improper under the fundamental constitutional separation of powers doctrine in the U.S. Constitution and in Article 111, Section 1, of the Oregon Constitution. The Legislature is prohibited from encroaching or interfering with the Judicial Department in its exercise of judicial powers. The interpretation of statutes and whether administrative rules are consistent with statutes is a judicial function with which the Legislature cannot interfere. While the Oregon Legislature could have changed the statutes or required a change in the rules to conform to the current statutes, it could not just simply disagree with the Court of Appeals, as it did here, in stating that the rules are consistent with the statute. Very truly yours, PAUL DEWEY PD:ao cc: Client Exhibit Page 5 of tea. Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdewey@bendeable.com December 19, 2005 Board of County Commissioners Deschutes County 1300 NW Wall Street Bend, OR 97701 Re: Board Hearing on Proposed Thornburgh Resort; CU-05-20 Letter #8: Objections to County Procedures Dear Commissioners: On behalf of Nunzie Gould, I am writing to object the County's handling of this case which has prejudiced her rights and those of the public. 1. The Board's Order of November 21, 2005, incorrectly and without foundation determined that the Hearings Officer's decision was issued at a time which allowed no opportunity for review and approval by the Board without violating the time limitations of ORS 215.427 and DCC 22.20.040(A). At the time of the Hearings Officer's decision, there were still at least 12 days left in the 150-day period. This was made clear at the second hearing before the Hearings Officer when County Staff explained the status of the 150-day period and the Applicant agreed to allow an extension to give more time for the Hearings Officer to write her decision. It would be an absurd interpretation that the Applicant agreed to extend the final date of the 150- day period only to the date when the Hearings Officer's decision was done, since that would have allowed no time for final Board review. It would have meant that the Hearings Officer and County had agreed to an extension that would automatically violate the 150-day rule. Everyone at that hearing understood the nature of that extension and it is a gross deception for the Applicant to claim otherwise. Unfortunately, the County did not properly record this second hearing, so there is no tape or transcript. In this situation, the County should disclose the Staff and Hearings Officer notes on the extension, but the County has refused to do so. Absent this information, there is insufficient evidence to sustain the Board's conclusion as to the running of the 150-day period. The information we do have suggests the 150-day period was not exhausted. (Attached) 2. This error on the interpretation of the running of the 150-day period was compounded by the County's capitulation to the Applicant's threat of bringing a mandamus action against the County and demands for how the Applicant wanted the Board to consider a review of the Hearings Officer's decision. Through private negotiations from which the public was excluded, the Applicant and Board made agreements which resulted in ORDER NO. 2005-143 on Exhibit /-E Page of~~3 December 19, 2005 Page 2 November 21, 2005. The County has refused to disclose the negotiations, making it unclear what they actually agreed upon and whether everything agreed upon is contained in the Order. From all indications, it unfortunately appears that there were agreements made that are not contained in the written Order. For example, the County has issued a notice giving the Applicant 30 minutes to make a presentation and restricting all others to five minutes, but these restrictions are not addressed in the Order. At the demand of the Applicant, the County also refused to hear an appeal by my client, though the Order is again silent on excluding appeals. Such undocumented agreements or ad hoc direction of Board decisions by the Applicant constitutes an improper delegation of Board authority to the Applicant and denies my client and the public a fair hearing. 3. The Order's restriction for parties to file written comments and evidence within seven days violates state procedures, including, but not limited to, ORS 197.763(6) and (7) by restricting the scope of rebuttal to evidence presented to the Board after the date of the Hearings Officer's Decision. The County and the Applicant cannot make deals which restrict the public's rights created by state statute. 4. The Board on December 12, 2005, issued ORDER NO. 2005-149, declining to hear the appeal of my client in this case. This appeal was permissible and timely filed under DCC 22.32.015. The County's agreement to consider the case on the Applicant's terms and rejection of the same opportunity under the Code for the public is discriminatory. The County is also wrong in concluding that our substantial rights are not prejudiced when it gives the Applicant substantially more time for argument and focuses the appeal on their issues. Where the Hearings Officer failed to make findings as to the 150-day time limit in her decision as required by DCC 22.28.015, where the County did not properly record the second hearing before the Hearings Officer (deleting hours of testimony by opponents to the resort), where the County has made private deals with the Applicant (scope still unknown) and given preferential treatment in the hearing process, where the County has denied basic rights to the public, even under its Code and state statutes, and where the County has failed to disclose County records on the running of the 150-day period and its negotiations with the Applicant, substantial prejudice to my client and the public has resulted with a denial of a fair and impartial hearing as required by state law. Very truly yours, 1 J~~ PAUL DEWEY PD:ao cc: Client Exhibit 4* Page ? of ,2a3 Page 1 of 2 Paul Dewey From: "Nunzie Gould" <mmzie@pacifier.com> To: "Paul Dewey" <pdewey@bendcable.com> Sent: Friday, November 18, 2005 8:40 AM Subject: TB 150 day clock info From: "Devin Hearing" <Devin_ Hearing@co.deschutes.or.us> Date: Thu, 5 May 2005 08:09:08 -0700 To: "Nunzie Gould" <nunzie(,pacifier.com> Subject: RE: Thornburgh Resort The applicant has placed the application on hold to resolve some outstanding issues. No date for the public hearing has been set as of this time. Devin L. Hearing Deschutes County -----Original Message----- From: Nunzie Gould [mailto:nunzie@pacifier.com] Sent: Thursday, May 05, 2005 7:34 AM To: Devin Hearing Subject: Re: Thornburgh Resort on 5/5/05 7:24 AM, Devin Hearing at Devin_Hearing@o.deschutes.or.us wrote: > Please send me a mailing address, so I can add you to the list. > Thanx > Devin L. Hearing > Deschutes County > -----Original Message----- > From: Nunzie Gould [mailto:nunzie@pacifier.com] > Sent: Wednesday, May 04, 2005 5:58 PM > To: Devin Hearing > Subject: Thornburgh Resort > RE: CU#0520 > Kindly include me in your notice of public hearing for the Thornburgh > Resort. If this email has missed the mailing date for the notice, > kindly advise by return email the time, date and location for the > hearing. Thanks, Nunzie Gould Exhibit 4- Page 4 of -Q3 11/27/2005 Devin Hearin From: Devin Hearing Sent: Thursday, August 18, 2005 9:43 AM To: Catherine Morrow; Kevin Harrison; Tom Anderson Subject: Thornburgh Destination Resort update/timeline Everyone The continuation of the Thornburgh Destination Resort public hearing happened last night Opposition testimony was taken until approximately 8pm, the public hearing portion of the application was closed. The record was left open (150 day rule waived by applicant) as reflected in the following 4- timeline: September 28 = Deadline for applicants to respond to any opposition testimony or evidence entered into the record.as of 8/17. October 12 = Deadline for both proponent and opponent response to applicants additional comments. October 19 = Deadline for applicant to file final legal arguments. November 9 = Deadline for the Hearings Officer to file Final Decision. Gr- Bottom line here is that additional testimony is limited to the specific parameters above, the record is not open for general comments or additional opposition, other than that specifically related to the applicants submittal expected by 9/28. Devin 1 Exhibit Page AQ of aa3 Paul D. Dewey Attorney at Law 1539 NW Vicksburg Bend, Oregon 97701 Tel. (541) 317-1993 fax (541) 383-3470 pdewey@bendcable.com Board Hearing on Proposed Thornburgh Resort: CU-05-20 Separate Exhibits for December 19, 2005, Letters on Behalf of Nunzie Gould Letters #I and #2 on Traffic Impacts: 2000 Cooperative Improvements Agreement between Eagle Crest and ODOT 2001 Board Decision on Eagle Crest III (excerpts) Group MacKenzie (Thornburgh) v. Kittleson (Eagle Crest III) left turn numbers at Cook Avenue and Highway 20 in Tumalo Board Resolution No. 2005-088 of CIP for road projects ($2.5 million needed to widen Cline Falls Highway - not in 5-year CIP) Map of current county road status road widths E-mails on county road ADTs County road revenue sources Letter #4 on Financial Resources and Assurance: 2003 Chapter 13 bankruptcy (Case No. 302-42737) (dismissed) 1988 Blair v. RBR Design, Kameron DeLashmutt, et al. (Case No. A8812-06887) (securities law violations civil suit) (settled) 1988 Delivery of a Controlled Substance - Cocaine (C88-09-36554) (conviction) 1988 Possession of a Controlled Substance - Cocaine (C88-10-36932) (conviction) 2004 Cummings v. The Tradition (INC045944) (breach of contract civil suit) (ongoing) 2004 Putman v. The Tradition (RIC435967) (negligent misrepresentation regarding property line) (ongoing) 2002 Wehrly v. The Tradition, David Chapman, et al. (INC020407) (fraud and breach of contract civil suit) (settled) 2002 Gerstel v. The Tradition (INC025461) (mandamus) (settled) Vita for W. Ed Whitelaw of ECONorthwest Letter #5 on Lack of Information on Key Destination Resort Criteria: October 12, 2005, ECO:LOGIC Report on waste disposal issues and recommended conditions December 19, 2005, Bulletin article on "Housing Report Stresses Cost" Exhibit' Page So of ag-' . December 19, 2000 Misc. Contracts & Agreements No. 17,671 COOPERATIVE IMPROVEMENT AGREEMENT Cline Falls Highway @ US 20 (Tumalo) THIS AGREEMENT is made and entered into by and between THE STATE OF OREGON, acting by and through its Department of Transportation, hereinafter referred to as "ODOT" and EAGLE CREST INC., an Oregon corporation, acting by and through its senior officers, hereinafter referred to as "Eagle Crest", RECITALS jvms0. comraets 1. US 20 is a part of the state highway system and is under the jurisdiction and control of the Oregon Transportation Commission. Cline Falls Highway is part of the County road system and is under the jurisdiction and control of County. 2. Eagle Crest filed a land use application (the "Application") with Deschutes County (the "County") on July 2, 1999 to expand its existing destination. resort (comprised of two phases, commonly known as Eagle Crest I and Eagle Crest II), to the west on four hundred eighty (480) acres of land adjacent to the existing resort. The proposed expansion ("Eagle Crest III") would include approximately nine hundred (900) new dwelling units and would be connected to and managed in conjunction with the existing resort.. The location of Eagle Crest I and Eagle Crest I1 and the proposed location of Eagle Crest III are shown on attached Exhibit A, and by this reference made a part hereof. 3. A portion of the Deschutes County Destination Resort Ordinance (the "DCDRO"), Chapter 18.113.070(G), requires developments that will significantly affect a transportation facility to take steps to assure that such development "is consistent with the identified function, capacity and level of service of the facility". 4. In connection with its application and to help in the determination of its transportation obligations pursuant to the DCDRO, Eagle Crest has retained Kittelson & Associates, Inc. ("Kittelson") to prepare a traffic analysis in connection with proposed Eagle Crest III. Exhibit 14 Page S/ of .23 5. The parties agree pursuant to the Transportation Impact Analysis report dated June 1999 and prepared by Kittelson (the 'Traffic Analysle) that access to and from proposed Eagle Crest III should be through two (2) routes; (1) north through a. new local road "the New Road" connection to Oregon Highway 126 C'Route 1") and (2) east through a local connection to and along the existing internal roadway network for Eagle Crest II which leads to two (2) intersections with Cline Falls Highway ("Route 2"). 6. Some traffic from the proposed Eagle Crest III would travel via Route 2 south on the Cline Falls Highway to connect to U.S. 20 at the intersection of those two roads in Tumalo, an intersection which has been identified by Deschutes County in its County Transportation System Plan (the "TSP") as the site of a future overpass interchange to better accommodate current and future traffic. T Eagle Crest is willing to contribute a portion of the cost of construction of the new interchange based upon the likely impact of traffic from proposed Eagle Crest III upon the intersection of Cline Falls Highway and U.S. 20 in order to help resolve issues related to transportation impacts from its expansion request. Eagle Crest's contribution is contingent on the resolution of the pending pEmlits with the Bureau of Land Management (BLM) for access to Oregon Highway 126 (Route 1). 8. Eagle Crest and ODOT agree that the intersection of Cline Falls Highway at the junction with U.S. 20 is presently operation at LOS F. According to the Traffic Analysis, Eagle Crest III is expected to generate 3% of the overall traffic to this intersection and that it is expected to be approximately 12% of the critical turning movements. 9. By the authority granted In ORS 366.425, ODOT may accept deposits of money or an irrevocable letter of credit from any county, city, road district, person, firm, or corporation for the performance of work on any public highway within State. When said money or a letter of credit is deposited, ODOT shall proceed with the project. Money so. deposited shall be disbursed for the purpose for which it was deposited. NOW THEREFORE, the premises being in general as stated in the foregoing recitals, it is agreed by and between the parties hereto as follows: TERMS OF AGREEMENT: 1. ODOT acknowledges that should Eagle Crest III be developed, an interchange may need to be constructed at the location shown on the sketch map attached hereto, marked Exhibit B, and by this reference made a part hereof. Agreement #17,671 Eagle Crest Inc. Cline Falls Hwy @ US 20 (Tumalo) 2 Exhibit Page _ S2 of .,-2a3 2. Funding of the Interchange at Cline Fails Highway and U.S. 20. has been calculated as follows: The Deschutes County TSP calls for the new interchange to involve the construction of a grade-separated crossing of the Cline Falls Highway at the junction with U.S. 20 (the "New Interchange"). According to the Traffic Analysis and ODOT's own traffic data, Eagle Crest III is expected, on average, to generate approximately twelve percent (121/6) of the critical turning movements from the side street onto the. highway at this intersection. The County and ODOT have estimated that construction of the New Interchange will be needed in approximately five (5) years and will cost approximately Two Million Dollars ($2,000,000). Accordingly, ODOT and Eagle Crest hereby agree that should the interchange need to be constructed that Eagle Crest shall contribute as its share the fixed amount of Two Hundred Forty Thousand Dollars ($240,000) (the "Interchange Contribution") which equals. twelve percent (12%) of the total estimated construction cost. Eagle Crest shall pay the interchange Contribution prior to time of award of construction contract for the New Interchange, should the New Interchange be needed. 3. ODOT and Eagle Crest agree that the advance deposit of $240,000 will be returned to Eagle Crest if construction of the interchange does not occur. 4. The terms of this agreement shall begin upon execution of the agreement by all parties and shall terminate upon completion of project and final payment, or at such time that it is determined that a. new interchange is not needed. EAGLE CREST OBLIGATIONS 1. The obligations of Eagle Crest contained herein are contingent upon the following: (1) approval by the County of its Application to permit the development of Eagle Crest III substantially as proposed in the Application; (2) and approval by BLM of special use permits to allow the construction of the. New Road and Internal Road substantially as shown in Exhibits B and C, respectively; and (3) the grant of all necessary permits. by ODOT for the New Road to connect to Oregon Highway 128 substantially as shown on Exhibit B. Agreement #17,671 Eagle Crest Inc. Cline Fails Hwy @ US 20 (Tumalo) 3 Exhibit _1+ Page _55 of 2,23 9. 2. Eagle Crest agrees, subject to the contingencies provided in paragraph 1 of this section, above, to make a contribution calculated on its generation of critical turning movements, in order to help resolve transportation-related issues at the intersection of Highway 20 with Cline Falls Highway related to Eagle Crest IN. 3. Should the interchange project be included In the State Transportation Improvement Plan (ST1P) and ODOT advertises for a construction contract, Eagle Crest shall, upon receipt of an advance deposit request from ODOT, deposit $240,000 in cash, check, or an irrevocable Letter of Credit with ODOT. Such funds must be received by ODOT before it will award the contract. Said funds shall be placed in the Highway Fund by ODOT. ODOT OBLIGATIONS 1. Should the interchange project be included in the STIP and ODOT advertises for a construction contract, ODOT shall, prior to award of a construction contract, send an advance deposit request to Eagle Crest for $240,000, which is their calculated contribution to the project. 2. ODOTs contact for this project is Gary Farnsworth, ODOT Area Manager. GENERAL PROVISIONS 1. All parties agree that a mutual review of the construction plans will be conducted prior to advertisement for construction bid proposals. 2. This agreement may be terminated by mutual written consent of both parties. 3. ODOT may terminate this agreement effective upon delivery of written notice to Eagle Crest , or at such later date as may be established by ODOT, under any of the following conditions: a. If Eagle Crest fails to provide services called for by this agreement within the time specified herein or any extension thereof. b. If Eagle Crest fails to perform any of the other provisions of this agreement, or so fails to pursue the work as to endanger performance of this agreement in accordance with its terms, and after receipt of written notice from ODOT fails to correct such failures within 10 days or such longer period as ODOT may authorize. Agreement #17,671 Eagle Crest Inc. Cline Falls Hwy @ US 20 (Tumalo) 4 Exhibit Page ~ of XA3 c. If Eagle Crest fails to provide payment of $240,000 upon receipt of a letter of request from ODOT. This termination shall occur only if all other conditions are met. Any termination of this agreement shall not prejudice any rights or obligations accrued to the parties prior to termination. 4. MOT and Eagle Crest agree that the Highway 125 connection will be restricted or closed at such time as the intersection meets signal warrants or other operational problems develop which cannot be mitigated to ODOT's satisfaction. Required modifications (e.g., restrictions to right-in/right out, raised median, etc.) or closure will be paid for by Eagle Crest, unless other development in area is also generating traffic at the intersection, in which case Eagle Crest's share of funding the modifications will be proportional to their share of critical traffic movements. The decision to restrict or close the access will be at OOOT's discretion, but will be closely coordinated with Eagle Crest and Deschutes County to consider reasonable options. Signalization will not be an acceptable solution. 5. This agreement and attached exhibits constitute the entire agreement between the parties on the subject matter hereof. There are no understandings, agreements, or representations, oral or written, not specified herein regarding this agreement. No waiver, consent, modification or change of terms of this agreement shall bind either party unless in writing and signed by both parties and all necessary approvals have been obtained. Such waiver, consent, modification or change, if made, shall be effective only in the specific instance and for the specific purpose given. The failure of ODOT to enforce any provision of this agreement shall not constitute a waiver by MOT of that or any other provision. Agreement #f 17,671 Eagle Crest Inc. Cline Falls Hwy @ US 20 (Tumalo) Exhibit Page _55 Of 9a3 IN WITNESS WHEREOF, the parties hereto have set their hands and affixed their seals as of the day and year hereinafter written. Pursuant to the Transportation Commission's adoption on March 18, 1999, of Delegation Order No. 3, (paragraph 10 as it relates to traffic management), the Deputy Director has been given authority to approve and sign this agreement. EAGLE CREST, INC., by and through its senior officers, Title CED - Date 3-2-3-01 APPROV . D AS TO LEGAL SUFFiC By Eagle Cres Counsel Date -Z 1 -0 l Agreement #117,671 Eagle Crest Inc, Cline Falls Hwy @ US.20 (Tumaio) 6 STATE OF OREGON, by and through its Depart t of Transportation By, - - Executive De uty Direct Date _ APP VAL RECOMMENDED By Region 4 Manag Date 0' t 2 By Date r APPROVED AS TO LEGAL SUFFIC CY i Y Assystant Attorney General Date 5// ~v~' - Exhibit 1-~ Page 5(0 of 9. DECISION OF DESCHUTES COUNTY BOARD OF COMMISSIONERS FILE NUMBER: CU-99-85 RIYI WILD APPLICANT/ C- PROPERTY OWNER: Eagle Crest, Inc. c/o Alan Van Vliet P. 0. Box 1215 Redmond, Oregon 97756 ATTORNEY: Nancy Cravefi Bail Janik L.L.P. 101 S.W. Main, Suite 1100 Portland, Oregon 97204 ENGINEER: Thomas A. Walker, P.E. W & H Pacific 920 S.W. Emkay Drive, Suite C-100 Bend, Oregon 97702 REQUEST: The applicant is requesting approval of a conditional use permit for a destination resort conceptual master plan to allow a 480-acre expansion of the existing Eagle Crest resort on land zoned EFU-SC, SMIA. STAFF REVIEWER: Paul Blikstad, Associate Planner HEARING DATE: April 10, 2001 RECORD CLOSED: April 24, 2001 1. APPLICABLE STANDARDS AND CRITERIA: A. Title 18 of the Deschutes County Code, the Deschutes County Zoning Ordinance 1. Chapter 18.16, Exclusive Fame Use Zone Section 18.16.030, Conditional Uses Permitted - High Value and Nonhigh Value Farmland Section 18:16.035, Destination Resorts 2. Chapter 18.56, Surface Mining Impact Area Combining (SMIA) Zone ❖ Section 18.56.070, Setbacks Section 18.56.030, Use Limitations ❖ Section 18.56.090, Specific Use Standards • Section 18.56.120, Waiver of Remonstrance CU-99-85 May 23, 2001 Page I Exhibit I>!' Page 952 of a.-L3 The applicant argues in its original narrative, and the Board concurs, that development of a destination resort can be compatible with cattle grazing, as evidenced by the existing Black Butte Ranch that abuts land that historically has been employed in cattle grazing. (The Board is aware that Black Butte Ranch was itself a large cattle 'ranch before it was developed as a destination resort.), The Board also concurs with the applicant's statements in the supplemental narrative that the proposed two-lane access roads will not impact adjacent private properties so as to force a change in farm practices or significantly increase the cost of accepted farm practices. As stated by the applicant, farming operations frequently abut major highways with little or no detrimental impact, and the proposed Highway 126 Access Road will be separated from the private EFU- zoned parcels by a 50-foot vegetated buffer. In addition, the only parcel on which farming is currently taking place is over 1,600 feet from the proposed access road. Therefore, The Board finds the applicant's proposal to expand the resort will not conflict with this agricultural activity and consequently will not force a significant change in or significantly increase the cost of that practice. G. Destination resort developments that significantly affect a transportation facility shalt assure that the development is consistent with the identified function, capacity and level of service of the facility. This shall be accomplished by either: a. limiting the development to be consistent with the planned function; capacity and level of service of the transportation facility; b. providing transportation facilities adequate to support the proposed development consistent with OAR Chapter 660, Division 12; or c. altering land use densities, design requirements or using other methods to ,reduce demand for automobile travel and to meet travel needs through other modes. A destination resort significantly affects a transportation facility if it would result in levels of travel or access that are inconsistent with the functional classification of a facility or would reduce the level of service of the facility below the minimum acceptable level identified in the relevant transportation system plan.i FINDINGS: As discussed above, the applicant submitted a traffic impact analysis (hereafter "traffic study") attached to the original narrative as Exhibit 7. In addition, compliance with this criterion is addressed at pages 17-20 of the supplemental narrative. The applicant also submitted ' The structure of this paragraph is as set out in its adopting ordinance, Ordinance No. 92-004, rather than as it appears in Title 18. In reviewing this paragraph, the Board discovered that when this paragraph was codified in Title 18 its structure was altered from that in the adopting ordinance such that its meaning was changed. _ CU-99-85 May 23, 2001 Page 27 Exhibit Page 6 9 of aP- ?2 supplemental traffic studies to illustrate that the dual access proposal will evenly distribute new _ trips to minimize impacts on adjacent uses and transportation facilities. (Exhibits L and M). The applicant has received BLM right-of-way approval to construct the two roads necessary to provide adequate and safe access. For this reason, the Board finds the portions of the traffic study addressing traffic impacts with only one access are not relevant. The traffic study predicts that, with two points of access, traffic generated by Phase III will have impacts on four intersections: 1) the Cline Falls Road/Eagle Crest access; 2) the existing Cline Falls Road/Highway 126 interchanges; 3) the new Eagle Crest/Highway 126 intersection; and 4) the Cline Falls Road(Cook Avenue)/Highway 20 intersection to the south in Tumalo. The traffic study analyzed the function of the three intersections based upon the 1994 ODOT Highway Capacity Manual (HCM)• The 1994 HCM recognizes six levels of service for signalized and unsignalized intersections based upon measurements of the average vehicle delay waiting to make critical turning movements at the intersection. These levels range from LOS A, representing little or no delay, to LOS F, characterized by long delays and unsafe driver behavior. The traffic study indicates the County considers LOS E to be the minimum acceptable level of service for an unsignalized intersection. In his July 27, 1999, comments on the applicant's traffic study, Peter Russell of ODOT, stated the HCM was updated in 1999 and now measures intersection function based upon the volume-to- capacity ratio (v/c ratio). The v/c ratio measures the average delay per vehicle waiting to make critical turning movements and how much capacity the intersection has to move and store vehicles. The We ratio is reflected in a percentage above or below 1, with I indicating extreme delays and complete saturation of the intersection's capacity. Because both Highways 20 and 126 are state highways, they are subject to ODOT's standards for minimum acceptable levels of service. Mr. Russell stated the minimum acceptable level of service for intersections on these two state highways is a v/c of 0.70 on the state highway and a v/c ratio of 0.80 for the intersecting County road. The traffic study predicted that at full buildout of Eagle Crest Phases I and. II the resort will generate a total of 4,215 average daily vehicle trips (ADT's) including 345 p.m. peak hour trips (between 4:00 p.m. and 5:00 p.m. weekdays). The traffic study predicts that with full buildout of Eagle Crest Phase III; the resort will generate an additional 3,660 ADT's, including 305 p.m. peak how trips, for a total from the entire resort of 7,875 ADT's and 650 p.m. peak hour trips. The traffic study predicts the effect of this traffic on the existing and new intersections at buildout in 2009 will be as follows: Intersection Current LOS Predicted LOS Current V/C Predicted V/C Cline Falls/Eagle Crest LOS B LOS C 0.13 0.53 Cline Falls/Hwy 126 LOS B LOS D 0.27 0.62 Cline Falls/Hwy 20 LOS F LOS F Above 1.0 Above 1.0 Eagle Cmst/Hwy 126 N/A LOS C N/A • 0.08 In other words, the study predicts that, with the addition of traffic generated by development of Eagle Crest Phase III, three of the affected intersections will continue to function at or above the acceptable level of service and the Cline Falls(Cook Avenue)/Highway 20 intersection will CU-99-85 May 23, 2001 Page 28 Exhibit i-" Page 5 of a-a- 0 0 continue to function below the minimum acceptable level of service under either the LOS or v/c ratio measurement method. The Board notes the language of this approval criterion is virtually identical to the language in the TPR - specifically, the provisions of OAR 660-012-0060 establishing standards for plan and land use regulation amendments that "significantly affect" a transportation facility. The Court of Appeals interpreted the term "significantly affect" in ODOT v. Coos County, 158 Or App 568 (1999). There, the Court of Appeals held that for a proposed plan amendment to "significantly affect" a transportation facility under the TPR, anticipated traffic must. actually reduce the level of service from an acceptable level to an unacceptable level. The court noted the term "level of service" in the TPR is a term of art that the parties in that case referred to the then-effective 1994 HCM method using LOS A through LOS F. In a previous decision (Barclay Meadows, PA-99- 4/ZC-99-1), the Deschutes County Hearings Officer found that because the HCM had been amended since the Coos County decision to shift from the LOS to v/e ratio measurement method, to "significantly affect" a transportation facility under the TPR, traffic generated by the proposed development must reduce the level of service of affected intersections below the minimum acceptable v/c ratio. Because the language in the County's destination resort approval criteria and the TPR are virtually identical, the Board finds it is appropriate to apply the holding of Coos County to the ordinance. Therefore, the Board finds that because the Cline Falls (Cook Avenue)/Highway 20 intersection already operates below the. minimum acceptable LOS and v/c ratio, traffic generated by development of Eagle Crest Phase III will not reduce its level of function below the minimum acceptable level of service and therefore will not "significantly affect" the intersection. For this reason the Board finds that it is not required to employ any of the three mitigation alternatives listed in this criterion. However, the Board also finds that, although not required to do so for the reasons detailed above, the applicant has agreed to provide transportation facilities adequate to support the proposed development. The applicant entered into a Memorandum of Understanding with ODOT regarding the Highway 126 access point. (Exhibit R). In the MOU, the applicant agrees to construct specified Highway 126 improvements, including a left-tum refuge lane to accommodate westbound traffic making a left turn onto the Highway 1.26 Access Road and a right=turn deceleration lane to accommodate eastbound traffic making a right tum onto the Highway 126 Access Road. Furthermore, to mitigate the impacts of the development on the U.S. 20/Cline Falls Highway intersection, the MOU also requires the applicant to contribute to the cost of a new interchange at the subject intersection. The MOU specifies that the applicant will contribute 12 percent of the improvement costs to fund the new interchange. The applicant has also agreed to enter into a Cooperative Improvement Agreement regarding the proposed intersection improvements. (Supplemental narrative; pages 17 and 18). Consequently, the Board finds that, although traffic generated by development of Eagle Crest Phase III will not "reduce its level of function below the minimum acceptable level of service" and therefore will not "significantly affect" any of the study intersections, the applicant has agreed to mitigate the impacts attributable to its development pursuant to the MOU and a Cooperative Improvement Agreement. The Board finds that the applicant's mitigation proposal ensures compliance with this standard. CU-99-85 May 23, 2001 Page 29 Exhibit Cof'L Page -4;6 1114'0~0 NOT TO SCALE rJ~ f 187 277- 257 272 247 265--- - 241 5ti 5 10ti 30 33~ O N O N G N . t` 0 1 33-, I ~I CD) N ~ O N IN 7 I N O r N 00 N O N J I 10ti 1 I to O N rn cnfcn 10-' 243 618 575 30- 30 I r N © N O N G R DATE: 12-06-04 2004 EXISTING VOLUMES ACKEN ZI E DRAWN BY: N8 Portland OR Vancouver WA Tacoma WA Seattle WA CHECKED BY: DGL PM PEAK HOUR EXHIBI 603.224.9660 360.996.7879 263.471.0661 206.749.9993 JDB ND: THE BUTTES THORNBURGH 0OROW MACKENZIE 2004 ALL RIGHTS RESERVED 2040342.00 ^ THESE DRAW1NO5 AAE THE PROPERTY OF p10UP MACRENIIE AND ARE NOT TO BE - DESCHUTES COUNTY, OR USEO OR REPROOUCEO IN ANY MARNER RITMOUI PRIOR WRITTEN PERMISSION v FIGURE B-223 Exhibit 4 Page of McKENZIE HWY A NOT TO SCALE 0 f 222 329-- 305 323-- r-- 293 314-- 286 6--., 6 12 ti 45 39 ti O EO ED" © L17 O N N N N i 39-, k t •lD~/~ 1 f > N'4 (0 N 1 t M Ct/) N N M N 18 12ti O M N M 12 288 734 683 36 ti 36 1 I © r7 r t'N) G R GATE: 12-06-04 I ACKENZI E DRAWN BY: NB 2009 PRE-DEVELOPMENT TRAFFIC FIGURE Portland OR Vancouver WA Tacoma WA Seattle WA CHECKED BY: DGL WEEKDAY PM PEAK HOUR EXHiBi B-2 j 603.224.0580 360.886.7878 263.471.0661 206.748.0903 O P DDB ND: THE BUTTES A THORNBURGH GR U MACKENZIE 1004 All RIGHTS RESERKO ' 2040342 00 THESE ORANIHOS ARE THE PROPER71 OF GROUP YAIXCN2IEM21 1 M!D ARE HOT TO RE USED OR REPROOUCEO IN ANY MANRER WnHOLIT PRIOR EN PZRMISSION 1 . DESCHUTES COUNTY- OR i Exhibit ¢f Page &2- of x,23 MCKENZIE HWY e NOT TO SCALE M 328 425 399 397 360 386--► 351 7 36--,, 83 48---.,, ~r ~r r 00 N MI 7 48-, ~1 oM N M 1 1 r O m M m N N M M ~ l. 22 J' 15--, - ~1 r7 O LD ~ ~M o .(C 1 16 383 902 ~ - 839 44ti A- 44 si r toM~ © G R DATE: 12-06-04 FIGURE 2015 PRE-DEVELOPMENT TRAFFIC DRAWN BY C K E N Z I E : NB CHECKED BY: DGL WEEKDAY PM PEAK HOUREXHIBI B-2~ Portland OR Vancouver WA Tacoma WA Beadle WA 603.224.8660 360.606.7870 263,471.0661 208.740.0003 ® GROW MAM04ZIE ZM ALL RIGHTS RESERWD JOB NO: 2.00 THE BUTTES A THORNBURGH T VSEO ON REPPWUCEO YI µY MµM7t,WW1aX0U PAEN~IN~A1t pHOT O«BE DESCHUTES COUNTY. OR Exhibit Page &33 _ of a ~,3 McKENZIE HWY A - 141-j~p NOT TO SCALE McKENZIE HWY 2 Accesses to Barr Road Possible w/ Phase 2 f 113 43- 53 70-. 57 4 f 43 57 ti 1 r7 t A B 15% ~ ~ 20% SITE 03 D ~~f O ~ 140 ~ ~ 1 38 } ~ I O n GO 00I 0 r 66 O E /40% 20 F N = 25% a aL Z IG 207. G R _ DATE: 12-06-04 . FIGURE A C IC E N Z TRAFFIC ASSIGNMENT -PHASE 1+ II DRAWN BY. NB CHECKED By.. DGL 2015 WEEKDAY PM PEAK HOUR 1rortland OR Vancouver WA Tacoma WA Seattle WA FXHIRI B-229 603.224.6600 300.606,7878 263,471.0661 206,740.9983 GROW JOB NO. yP THE .BUTTES a THORNBURGH THESE TAAMNGS~ARE RCROPERTY OF CROUP M~AO(ENZIE AND ARE NOT T OE D 2 40• O O USED OR REPRODVCFA IN ANY MANNER, MTHOUT PRIOR NRITtEN PERMISSI ON DESCHUTES COUNTY OR Exhibit Page ! of ~~23 co 126 EAGLE CREST III CM=NBRT1` 225 285-► LOS=9 .0-320 40-4 001=5.3 V/C=0.30 / h EAGLE CREST II NN N 1 CM=EBRT LOS=A 40 Del=3.6 -IV/C=0.04 * } I 00 N~ NORTH (NOT TO SCALE) CN EAGLE CREST I N O - O 411 30~' jEe 30:- LOS=B f 3 75 0 20 ON=6.4 25 ~1V//C=0.13/r 1t1w \ oo* / ln!clt 40?<~ 7 20 CM=Se *`325 625--► LOW .0-600 15 al=>45 10 ~1V/C=> 1.01 ~t 1w / N N V til = CRITICAL MOVEMENT (UNSIGNALIZED) iS = INTERSECTION LEVEL OF SERVICE (SIGNALIZED)/ CRITICAL MOVEMENT LEVEL OF SERVICE (UNSIGNALIZED) Del - INTERSECTION AVERAGE DELAY (SIGNALIZED)/ CRITICAL MOVEMENT DELAY (UNSIGNALIZED) r/C = CRITICAL VOLUME-TO-CAPACITY RATIO 1999 EXISTING TRAFFIC VOLUMES AUGUST WEEKDAY PM PEAK HOUR EAGLE CREST III RESORT DEVELOPMENT I FIGURE REDMOND, OREGON 3 Exhibit 4 Page CoS of x..23 CM=NBRT W 335 410 LOS=B 460 55 Del=9.1 HIV/C=0.54 126 EAGLE CREST III EAGLE CREST II M M~ CM=NBLT LOS=B 55 D*1=5.0 ~1Y/C=0.38 R\t coo An in m 0 NORTH (NOT TO SCALE) N h M ~ABLT 4 130 LAS=C 25 ON=17.7 'I1V/C=0.46 t N~ EAGLE CREST I ,nnM ,I CM=E8 1` 80 1 60--0. LOS=C 4-655 35 -1VD*1/C=16.3 =0.4ar 45 4 NbiA All 11~-- 20 CIA=SB 1` 475 895--► LOW 865 20 Dal=>45 10 -Iv/C=> 1.01 1t Ig r°M n V N ,dRITICAL MOVEMENT (UNSIGNALIZED) JS = INTERSECTION LEVEL OF SERVICE (SIGNALIZE( CRITICAL MOVEMENT LEVEL OF SERVICE (UNSIGNALIZED) Del = INTERSECTION AVERAGE DELAY (SIGNALIZED)/ CRITICAL MOVEMENT DELAY (UNSIGNALIZED) V/C = CRITICAL VOLUME-TO-CAPACITY RATIO 2009 BACKGROUND TRAFFIC AUGUST WEEKDAY PM PEAK EAGLE CREST III RESORT DEVELOPMENT VOLUMES HOUR FIGURE . ■(7/ Exhibit 4 Page Ce to of 923 IF NOT TO SCALE Notes Volumes are adjusted to the peak month. G R P DATE: 06-30-05 EXISTING VOLUMES FIGURE 71 E A C K E N DRAWN BY. N8 - Portigntl OR Vancouver WA Tacoma WA Seattle WA CHECKED BY. CMC PM PEAK HOUR 803.424.0500 ee0.e98.7879 263.470561 206.749.9999 JOB N0: --~ORNBURGH RESORT Q 944 MACKENZI: M4 ALL RIGHTS UESERWD TWX DRAWOIUS ARE THE PROPERTY Or.CROUP YACMNiIE AM WE NOT rO BE 2040342.01 n=0nu1rrc0 nr,t tt.rrv no Exhibit 14 Page CQ r of _,23 lqlj'~p NOT TO SCALE 0 u~ 373 • - 305 367-----1- 316 291 404-• 402 7tiR 7 8---,R 39 67-~ 1 I 1 1 r 00 M o ~t r h M 6~1 ! 61~ ~i O N o0 M a0 M M I M nE 00 m N O M 1j 21-~ 14 -.,k ~i 0 g N J r . / 14 361 872 811 42~ 42 sir 00 00 © M 000 n 6 DATE: 06-30-05 2015 PRE-DEVELOPMENT TRAFFIC FIGURE - 6 SAWN BY: NB OR Vancouvar WA Tacoma WA 8aattla WA CHECKED BY: CMC WEEKDAY PM PEAK HOUR 960.686.7879 269.4710661 206.749,9998 JDB Ha. THORNBURGH RESORT 0 GROUP MAOMUM 2004 ALL RIGHTS REMM 6G" ,P ~ ~ 2040342.01 DESCHUTES COUNTY- OR Exhibit 14 Page &0 of .ia3 MCKENZIE HWY A - NOT TO SCALE 13 15 13- 15 1 O WX I~ i 13-~ ~I 13 -y to 75~ 25ti O N to N ti 1 1 O N 51 a 1 16 © ~ 6 R _u P DRAY By06 , N os IP DISTRIBUTION AND FIGURE MACK EN Z! E I DRAWN By, NB CHECKED BY: cMc TRAF19C ASSIGNMENT - TRIBUTE a Portland OR Vancouver WA 7gooml WA 8elttte WA 808.224.9880 880.898.7879 268.471.0861 208.749.9998 THORNBURGH RESORT _ AM r m ee JOB NO. ~iae r tMAOMNZIE navIR ` nr asnKO 2040342.01 ~V U a DESCHUTES COUNTY OR Exhibit 14 Page ly 9' of aa3 MCKENZIE HWY A - el"hph NOT TO SCALE ---I/- 15% M U7 M 21--► 23 92---► .4- 82 -r r 21ti r 117 38ti ~r ~r r (9 0 A E3 C SITE I,' wx /11111111► E _ 20 F 12U L W a% c 2OX --~r f 1 38 ti ~i M O M 00 ® M 00 O M N M M N R- 26 G R _ DATE: 06-30-05 TRIP DISTRIBUTION AND FIGURE A KN- I E DRAWN By, NB CHECKED BY. cMC TRAFFIC ASSIGNMENT - PINNALCE Portland OR Vancouver WA Tacoma WA Seattle WA 7b 600.924.0640 800.695.7879 268.477.0641 206.749.9998 ,ae N THORNBURGH RESORT N&. ® NOW MACKENZIY Mpr04 ALL N&M KMVEn~E 1Nlf TO a 20 40342.01 MLMV MOK ° = UIIJK ANY MANNEx YQR MAW AV()UT TIEN ►EN11590N DESCHUTES COUNTY OR Exhibit Page 70 of (Pb NOT TO SCALE M co 0~ 2 0 o 2 20 tiff/ 0 N~4 t` M N 50y1 0 ts~ r /t 1 t ( / M O N N 40 2 0--. 2 4 r 1 cif 6 v \ N~ N h e I r 95 7 ~ OPO 4TH ST 5TH ST 7TH ST G R DATE: 08. 16.05 2005 Exisitrig Traffic Volumes FIGURE A C K E N Z I EDRAWN BY: N8 00 PM P k Hour rtland OR Vanoouver WA Seattle WA CHECKED 8Y: CMC tira 803.224,9880 380,896,7879 208.749.9993 X09 ND: Thornburgh Resort Compan S[ Q tlE N NAtl(EN21E 1005 All 'ICHrS RESERVED Exhibit "USED 00 RE RODUOED.H( ANY 1IM1Y1,fiOMF110U1 FUM"YM~VI~7bTFNPEMOTIS °~tE 2040342.01 Deschutes Count Oregon Page r7 / of >.d rjADIN NOT TO SCAI I+, 20 JJt 3 0 0 ~oU) o M /Jl 71 0 3 ' 23 } r^ 1 11r ~Gn M 56~'` 3 0 3 \ co 00 M n Nry N b~ • O~ 4TH ST 5TH ST 7TH ST / ~ X63 0 9 a0/ W 0 k . G R DATE: 08.16.05 2015 Pre-Development Traffic FIGURE ~ I~ E N _ I E DRAWN BY.. NB .i? ortland 08 Vanoouver WA 8eattle WA CHECKED BY. CMC Volup, e8 - PM Peak Hour 603,224.8600 360.6®6,767® 206.748.8803 JOB N0; Thor burgh Resort Company pp0©gIWPCYAgp(E~HIItCr 2p0~05p~AIL RIOHTS gE~5EHµ1fpD r g 2040342.01 _ T ~SLD Oq NEPRAWC WvANY D.A&, giT"H N M OA ggMIN PEN-010TON, Deschutes Count Ore on Exhibit H Page ~Z of a-3 NOT TO SCALL 2O Lj~ ~1~~r GR -F 0 1 rtiand Vancouver WA Seattle WA 609.224.9650 960.696.7879 206.749.9999 SS O 4i01.1"EMAgCKENZIIE 1005 All RIOHIB RESERYEO TMSSm ON PRODUECEO IM AI EyANICR, WMHOP 'RRIORR"MrTTERMEPERor 70 BE r sir DATE: 05.16.05 DRAWN BY: NB CHECKED BY: CMC JOB NO: 2040342.01 25%t / ,V Y P~ 4TH ST 5TH ST 20% - 7TH ST z f ~ 19 i i Trip Distribution and Traffic FIGURE AssOment - Tribute ' 8b Thornburgh Resort Company Exhibit +N Deschutes County, Oregon_ page _ of 2-;t-3 (Pb NOT M SCALE 20 A ~R fACKE U-Z IE .r. 4rtland OR Venoouver WA Seattle WA 603.224.9660 360.696.7879 206.749.9993 NC5[ pR Yr~ m 0R0U' WO ME 80H ALL MOHiS RESFAAWD USED 01l RMFPROWOED IN RIIOY HAMMER. MIWHOUTAPPoOR 'hRITICARM,.10 f M / M M `1 i tr M / M M Ji4 ~lifr • M DATE: 08.16.05 DRAWN BY: NB CHECKED BY: CMC JUB N0: 2040342.01 25%1.1 MM 0 \ 8 O ~00~ MPS 5% 4TH ST 5TH ST 7TH ST 20% ry\ ~ r Trip Distribution and Traffic FIGURE Ass' ment - Pinnacle 9-b Thornburgh Resort Companv Deschutes County Orepon_ Exhibit .0 Page r of 22-3 G R ACKENZIE TABLE 96 - P M PEAK HOUR TRIP GEN ERATION - PINNACLE Land Use Weekday PM Description ITE C d Units Quantity Rate Peak Hour ( e) o Enter Exit Total Single Family Homes 260 Dwellings 280 0.26 30 43 73 Recreation Use Single Family Homes Owner Occupied 270 Dwellings 70 0.62 28 15 43 Ownership Cottages 260 Dwellings 200 0.26 21 31 52 Condos/Timeshares 260 Dwellings 175 0.26 19 27 46 Hotel 330 Rooms 50 0 42 9. 12 21. Less 15% Shuttle , 1 2 3 Golf Courses (18 Holes) Data from surveyed golf:,courses 2 8 10 Restaurant 931 Seats 200 0.26 35 17 52 Less 25% internal (9) (4) (13) Sports/Community Facilities 9 4 13 Less 60% internal 491 SO FT 15,000 D.84 5 2 7 Total External Trips - Pinnacle 138 149 287 Total External Trips - Tribute an d Pinnacle 243 273 511 INTERNAL TRIP CAPTURE The residential elements of the project are based on data collected specifically at recreational and resort areas. The trip generation rates are indicative of vacation, leisure, and retirement living, and are somewhat lower than residential trip-making values in urban areas. Trip generation rates for other land uses within the project are not similarly derived from typical recreational areas. Because the project is reliant on visitors and residents for a high percentage of amenity support, the internal trip capture of the golf courses, restaurants, and sports facilities are expected to be high. This capture for each specific use is shown in the previous tables, identified by the numbers in italics. TRIP DISTRIBUTION AND TRAFFIC ASSIGNMENT Exhibit_ A Page-75 of _a~ H:\PROIECTS\204034201\TRAFFIC\TIA Revision 11 050921.doc B-1,,22a 13 The distribution of project-generated trips was prepared based on existing directional patterns, proximity to services and employment patterns, and primary origins/routes for visitors to the development. Trips were also distributed based on anticipated origins and destinations within the Tribute and Pinnacle ardas in Thornburgh. Project-generated trips were assigned to the proposed access points based on Tribute and Pinnacle trip distribution. Trip distribution and traffic assignment are shown in Figures 8a and 8b for Tribute, and Figures 9a and 9b for Pinnacle. DEC-16-2005 FRI 11;45 AM Desch. Co. Road Dept. FAX NO. 5413882719 P. 19 REV..TE!F,I- LEGAL COUNSEL ording Stamp Only BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUT -=S COUNTY, OREGON A Resolution Adopting the 2005-2010 Deschutes County Capital Improvement Program (CIP), and Revised 20-Year Transportation Project List. RESOLUTION NO. 2005-088 t WHEREAS, the Capital Improvement Program (CIP) is a vehicle -or scheduling improvements for modernization, preservation, traffic safety, transportation system, bldge, right-of-way and local improvement district projects; and WHEREAS, the CIP is intended to give consistency to the dec slon making process at the policy level and specific direction to the Road Department whereby re sources available for capital improvements can be appropriately applied to the major road and bdd 3e networks under County's jurisdiction; and WHEREAS, in 1998, the Board of County Commissioners adapted a Deschutes County Transportation System Plan (TSP), which included a countrywide list of arojects for the next 20-year period that forms the basis for the development and implementation o the CIP; and WHEREAS, Oregon Administrative Rule (OAR) 660-012-0045, "implementation of the Transportation System Plan", considers that the "..operation, maintenz nce, and repair of existing transportation facilities identified in the TSP, such as road, bicycle, peclostrian, port, airport and rail facilities.." are not subject to land use regulations except as necessary to implement the TSP and, under ordinary circumstances do not have a significant impact on land use ; and WHEREAS, Policy No. 6b of the Transportation Resource Element of the Deschutes County Comprehensive Plan identifies that the Transportation Project List (Table 3.11 J11) may be updated by resolution periodically by the Board of County of Commissioners; now, therefore, BE IT RESOLVED BY THE BOARD OF COUNTY COMMISS ONERS OF DESCHUTES COUNTY, OREGON, as follows: Sec 't n 1. That the Capital Improvements Program, Exhibit "A" ; attached hereto and by this reference incorporated herein, is hereby adopted as the policy of the Board of County Commissioners relating to the planning, design and construction scheduling of Capital Improvements including modernization, preservation, traffic safety, transportation system, bridges, right-of-way and local improvement district projects for the four years following the current fiscal ;,ear, Section 2. That the Transportation Project List, Exhibit "B" attached hereto and by this j reference incorporated herein, is hereby amended and updated to reflect the deletion of completed ~ projects, reprioritization of existing projects and inclusion of new projects k it the next 20-year period. DACE 7 of 2 - RESOLUTION NO. 2005-088 Exhibit /4 Page ? & of DEC-16-2005 FRI 11:46 AM Desch, Co, Road Dept. FAX NO. 5413$82719 P. 20 r' 2005_ DATED thiL_--`day Of BOARD OF COUNTY COMIAISSIONERS OF DESCHUTES COUNTY, OREGON TOM DEWOLF MICHAEL, Chair ATTEST, Recording Secretary DE NIS R. LUKE, Cammis.,loner i PAGE 2 of 2 - RESOLUTION NO. 2005-088 Exhibit Page r7r7_ of DEC-16-2005 FRI 11:46 AM Desch. Co, Road Dept. FAX NO, 5413882719 P. 21 EXHIBIT "A" -wl Exhibit Page--? 9- of DESCHUTES COUNTY ROAD DEPARTMENT 5 YEAR CAPITAL IMPROVEMENTS PRoGRkM (bees nat Include force account work) DEC-16-2005 FRI 11:46 AM Desch. Co. Road Dept. FAX NO. 5413882719 P. 22 C m d s r_ r O w V fl7 ~ C O q W G to m IL //a l~ : m ~ a L ~ X ~ UJ p O r Exhibit ~ f Pager7q of2~~ DEC-16-2005 FRI 11;47 AM Desch. Co. Road Dept. FAX NO. 5413882719 P. 23 N M11 m m Q Feld N X W a qN 4 ca fa Exhibit i-f Page V of DEC-16-2005 FRI 1147 AM Desch. Co. Road Dept. . FAX NO. 5413882719 P. 24 W d a C 6 0. m m a" tr3 L ~ X Ca Id 0. of Exhibit Page of p" ~~a w/ a~3 ~~.~J~~s Page 1 of 3 Paul Dewey From: "Nunzie Gould" <nunzie@pacifier.com> To: "Paul Dewey" <pdewey@bendcable.com> Sent: Thursday, December 15, 2005 3:14 PM Attach: tablel2_13 jpg Subject: FW: Focused Map Paul: I will deliver a copy of what I get from Steve Tomorrow soonest. This is the best I can do...this rushed time again. Nunzie From: "Steve Jorgensen" <Steve-Jorgensen@co.deschutes.or.us> Date: Thu, 15 Dec 2005 14:46:11 -0800 To: "Nunzie Gould" <nunzie@pacifier.com> Cc: "Catherine Morrow" <Catherine-Morrow@co.deschutes.or.us>, "George Kolb" <George_Kolb@co.deschutes.or.us>, "Tim Berg" <Tim_Berg@co.deschutes.or.us> Subject: RE: Focused Map Nunzie, The ADT data has always been the same and is current, I just changed the ranges based on the ITE Table 12. In the 1998 TSP, and for the prior ADT maps you've seen, I used ITE Table 12.13 (which is derived from the Highway Capacity Manual) for the LOS ranges, but I had used the-portion of the Table that refers to "level" terrain. I have reconsidered the ranges and have revised them by using the portion of Table 12 that is used for "rolling" terrain, which I think makes more sense. This ADT analysis is extremely rough and should not be used for anything except relative comparisons. As I told you over the phone, traffic counts are the best available information we have. Unfortunately, without a computerized regional rural traffic model or information on speeds for every segment of road, rural transportation planning analysis is often just not that sophisticated compared to what can be done in urban areas. We have to rely on generic tables such as the one below to give us (and the public) a generalized idea of what's going on. It is the best we can do with available resources. Lacking a model, we could possibly run through a long mathematical process using formulas to calculate level of service, but they rely on speed information that we just don't have. I will prepare the maps you asked for and they will be ready tomorrow by noon for you to pick up anytime after that. I will be off after noon and through next week. The total cost should be: 3 ROW Maps $25+$15+$15 = $55 3 Width Maps $15 x 3 = $45 3 Focused ADT Maps $15 x 3 = $45 Total: $145.00 Steve Jorgensen. Exhibit 14 Page _L-L of ~_a3 12/15/2005 Page 2 of 3 -----Original Message----- From: Nunzie Gould [mailto:nunzie@pacifier.com] Sent: Thursday, December 15, 2005 1:02 PM To: Steve Jorgensen Subject: Re: Focused Map on 12/15/05 11:47 AM, Steve Jorgensen at Steve-Jorgensen@co.deschutes.or.us wrote: > Check this map out for proper coverage. I revised the generalized > level of service (LOS) rating based on a different table that was > based on the Transportation Research Board (TRB) Highway Capacity Manual. > Steve. Steve: I'm a bit confused. The map you just emailed me (focused adt map.pdf) says the source: ITE Planning Handbook 1992 Table 12, 13 rolling terrain K-factor: 0.10 not what you have listed above. Which data is it and how old? In our previous conversation, you mentioned the map provided to Planning Commission contained old data. (I have the preliminary color map which I received from you prior to the Dec 8 Planning Commission meeting) What year is the data and what is the source of what was submitted to Planning on Dec 8? I am trying to maintain consistency. The zoom-in coverage is great. But other than color changes of LOS (a change from LOS A-D all being green-- to individual colors for the A-D LOS), I am not requesting a separate source of information. Thanks Nunzie Exhibit 1+ Page _1- of a-a 12/15/2005 TABLE 12.13 Maximum AAD`1's for Two-Lane Highways for Various Terrains,,. Service Levels, and Design Hour Factors [Using Planning Default 'Jalut Type of` Level of Design Hour Factor: (K Terrain Service .14 . l 1 .12 .13 14 .15 Level A 2,400 2,200 25000 1,900 1,700 1,61111:: B 41800 4,400 4,000 3,700 31400 3,21 C 71900 7,200 61600 6,100 51700 5, 3%) D 13,500 12,200 11,200 10,400 9,600 9,,Olll E 22,900 20,800 19,000 171,600 161300 15."200 Rolling A 1? 1,00 11000 900 900 800 700..._. B 2,800 2,500 2,300 2,,100 21000 1.81 5,200 4,700 41400 4,000 3,700 3,51 D 81000 7200 6,600 61100 51170'0 5.300 E 141800 13,500 12,300 1 ,400 10,600 9,900 Mountainous A 500 400 400 400 300 3tF :1. B 1,300 1,200 1,100 I ,0G4 900 C 21400 2,200 21000 1,800 1,700 11v6lr D 3,700 3,400 3,100 2,940 2,700 2,5 1 E 8,100 7,300 61700 6?200 51800 5t4N) SOURCE: TRANSPORTATION RESEARCH BOARD, Highway Capacity Afan! ual 1985 {Washington, D.C.: TRB, 1986), Table 8-10, p. 84 14.. Exhibit 74 Page oO'S of COUNTY ROAD REVENUE SOURCES Fiscal Year 2004 Miles o Count Road Property Taxes Other Local Revenue State Highway Fund Other State Revenue Federal Forest Revenue t o Federal Revenues TOTAL REVENUE Baker 837 $0 $64,258 $1,178,952 $364,398 $788,712 $64,823 $2,461,143 Benton 458 $0 $689,150 $3,258,799 $967,126 $306,467 $324,791 $5,546,333 Clackamas 1,424 $0 $15,171,300 $18,610,819 $387,239 $4,887,200 $1,700,464 $40,757,022 Clatso 242 $1,351,618 $198,659 $1,793,499 $1,935,566 $0 $0 $5,279,342 Columbia 542 $0 $307,755 $2,112,708 $1,279,133 $0 $524,982 $4,224,578 Coos 543 $0 $1,049,009 $3,145,422 $22,578 $490,924 $690,492 $5,398,425 Crook 518 $0 $419,211 $1,295,678 $147,113 $2,240,087 $13,201 $4,115,290 Curry 230 $0 $427,075 $1,211,352 $0 $3,410,437 $0 $5,048,864 Deschutes 958 $0 $1,567,646 $7,085,179 $445,515 $2,928,117 $20,173 $12,046,630 Douglas 1,127 $0 $3,570,512 $5,695,305 $13,030 $13,802,713 $101,290 $23,182,850 Gilliam 399 $302,733 $184,958 $141,467 $0 $0 $24,762 $653,920 Grant 495 $0 $466,405 $490,249 $245,470 $6,292,100 $18,662 $7,512,886 Harney 804 $0 $117,539 $446,624 . $0 $2,582,660 $22,294 $3,169,117 Hood River 210 $0 $649,133 $1,167,927 $149,623 $1,703,632 $1,523 $3,671,838 Jackson 942 $0 $2,219,952 $9,007,600 $0 $3,900,600 $6,120 $15,134,272 Jefferson 478 $0 $109,568 $957,573 $844,656 $527,389 $38,072 $2,477,258 Josephine 576 $0 $202,633 $4,370,080 $433,560 $1,866,588 $0 $6,872,861 Klamath 847 $0 $2,254,233 $3,653,119 $0 $9,862,955 $2,677 $15,772,984 Lake 712 $0 $238,332 $525,842 $418,464 $3,464,274 $4,324 $4,651,236 Lane 1,433 $0 $1,562,052 $14,263,384 $2,037,001 $19,590,967 $332,674 $37,786,078 Lincoln 339 $0 $425,124 $2,039,178 $30,281 $3,226,008 $760 $5,721,351 Linn 1,116 $0 $1,781,743 $5,437,076 $27,494 $6,736,659 $81,598 $14,064,570 Malheur 1,471 $815,944 $1,132,391 $2,240,273 $392,263 $6,899 $204 $4,587,974 Marion 1,121 $0 $3,137,417 $13,066,621 $694,037 $2,455,071 $29,583 $19,382,729 Morrow 868 $1,660,545 $1,009,181 $638,473 $299,362 $231,737 $112 $3,839,410 Multnomah 335 $0 $8,313,536 $30,789,539 $110,436 $615,737 $1,586,536 $41,415,784 Polk 501 $0 $477,783 $2,866,530 $112,140 $7,054 $0 $3,463,507 Sherman 440 $576,516 $94,009 $158,142 $92,440 $0 $110 $921,217 Tillamook 338 $0 $146,448 $1,396,239 $967,888 $1,724,584 $20,216 $4,255,375 Umatilla 1,577 $0 $33,873 $3,654,960 $314,780 $632,295 $0 $4,635,908 Union 564 $0 $261,352 $1,256,928 $148,920 $645,727 $72,560 $2,385,487 Wallowa 558 $0 $559,762 $490,562 $205,689 $862,114 $0 $2,118,127 Wasco 661 $0 $231,098 $1,316,752 $118,784 $1,819,506 $78 $3,486,218 Washington 1,365 $2,776,827 $31,107,107 $18,041,299 $7,274,209 $0 $0 $59,199,442 Wheeler 232 $0 $59,149 $0 $171,027 $721,370 $12,872 $964,418 Yamhill 672 $0 $264,304 $4,136,103 $93,802 $478,527 $62,140 $5,034,876 TOTALS 25,932 $7,484,183 $80,503,656 $167,940,253 $20,744,026 $98,809,109 $5,758,092 $381,239,320 Exhibit 14 Page( of --~Z3 tk U CxU,;lo.ks Exhibit ff Page -RI? of 1~3 12/11/2005 16:00 FAX 1Ji:-.= STATES BANKRUPTCY COURT FOR THE DISTRICT OF OREGON In Re: KAMERON K DELASHMUTT Debtor(s) CLERK US RA HKRUP'T.CY CO'tP,' Case No. 302-42737-rld13 FINAL ACCOUNT AND REPO00V -4 A 9 =01 OF TRUSTEE The undersigned trustee of this estate certifies the original case ledger of receipts and distributions is attacfii -d - hereto, and makes a Final account and report as follows: F trio DOC. -E-TEo 1. Payments under the plan have not been completed. RECEIPTS 2. TOTAL GROSS RECEIPTS 3. Refund to debtor(s) 4. Payments to Chapter 7 Trustee $0.00 5. TOTAL NET DEPOSITS by debtor(s) disbursed to creditors and in payment of administrative expenses $2,095.92 DISTRIBUTIONS 6. Trustee commissions (EXCLUDING expenses) computed on pt. 5. $99.55 .7. Other professional fees (including debtor's attorney), AND ALL EXPENSES (e.g. court costs; trustee; all attorneys; etc.). $99.56 8. Secured credltors $1,896-81 9. Priority creditors $0.00 10. Unsecured creditors $0.00 11. TOTAL DISTRIBUTIONS (i.e. total of 6 - 10 and must equal pt. 5) $2,095-92 12. A check for the final payment of court costs in the amount of $ Is attached (if funds available and a balance due) along with a copy of any final billing sent by the court. 13. On Nov 4, 2003 copies were mailed to the U.S. Trustee; debtor(s); any debtor's attorney; and; if case converted, any successor trustee. Remarks: DISMISSED AFTER CONFIRMATION ,y y d DATED: Oct 31, 2003 rustee I certify that this computer generated form is identical to the Court form. JONATHAN G BASHAM 1375 (4/19/96) Truste $2,120.00 $24.08 Exhibit Page _ 0002 of aZ3 1t,Li,Lvva 10:v,) me wjV1L . I United States ]Bankruptcy Court District of Oregon Case No. Chapter 13 Inn, Kamero.a Keith DeLashmutt 541-82-2434 SUMMARY OF SCHEDULES Indicate as to each schedule whether that schedule is attached and state the number of pages in each. Report the tofids frnm Schedules A. B. D. Ii. F.1, and 1 in the boxes provided Add the amounts from Schedules A and B to determine the total amount of the debtor's assets. Add the amounts from Schedules D, E and F to determine the total snout of the debtors liubgities. AMOUNTS SCHEDULED NAME OF SCHEDULE ATTACHED (YESrtJO) NO. OF SHEETS ASSETS LIAHII ITIES OTHER A - Rail Property YES 1 S 290,000.00 :v 13 - Personal Property YES 3 $ 3,126.00 C - Property Claimed As Exempt YES 1 D - Creditors Flolding S YES 3 S 388 55 138 ecured Claims , . L• - Creditors HOW* Unsecured ! Priority Claims YES 3 S 0.00 F - Creditors Holding Unsecured ' S 1 S 116 654 26 Nonpriority Claims , . G - executory Contracts aid Unexpired Leases YES 1 1.1- Codebtors YES 1 ~I ~k •'rli.•I I - Current Income of Individual Debtor(s) YES 1 S 8,800.00 ' Mt .II j - Current Expenditures of YES 1 _ S 5 679.00 Individual Debtor(s) , Total Nwnber of sheen 16 ` ` in ALL Schedules 1;.. ~ .a'w Lt.~'. ~ • .r.^ + ~ dl ~ _ . .il{~w::~%i ' ' Total Assets ➢ 293r126.00 ~ C }kGuY~eS1r vrr~ .v ru.d ~ : ~y tf ~ . v,, `.`T~: $r a" . r "~'!•.'~yJ ~i•~::'. x rl•,.s I l L A' Totall.iabibUcs A S 504,792.81 Exhibit Page 9 Of aa3 IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 3 4 5 6 7 8 9 10 11 12 FOR THE COUNTY OF MULTNOMAH THOMAS BLAIR, JEFFREY BOLY, HOWARD BROUSSARD, DAVID DAVIES, KENNETH HOLLAND and BARBARA HOLLAND, DORSEY HOLT, ANDREW HOLUB,, JOHN H. KIDBY, JERALD KING, TERRY LOCK, KIRK MATTESON, JAY MAXWELL, HERBERT ORMSBY and DONA ORMSBY, FRANLIN OSWALD and NANCY OSWALD, DARYL POHL and MELISSA POHL, KEITH RAINE and JOAN RAINE, THE R.E. STEVENS CO., CHARLES S. ROOKS, JAMES ROBINSON, THOMAS ROBINSON and SUSAN ROBINSON, DENNIS RUSSELL, JACK SIPPERLY, DOUGLAS THOMPSON and BETTY THOMPSON, LELAND WALTUK, DAVID STONER and JOHN PERRIN, Consolidated Cases `L <.r-, No. A8812-06887 No. A8812-068584;•::;', FIFTH AMENDED COMA I1~f~I (Securities Law Violations, Negligence-' JURY TRIAL DEMANDED Plaintiffs, 13 Vs. 14 RBR DESIGN EMBRYONICS I, an Oregon limited partnership; RBR, 15 INCORPORATED, an Oregon corporation; E. KEITH DELASHMUTT; 16 AGNES M. DELASHMUTT; KAMERON K. DELASHMUTT; KIMERICK V. DELASHMUTT; 17 SHAWN D. DWYER; TIMOTHY B. MYERS; STEVEN S. COOPER; INVESTMENT 18 CAPITAL CORPORATION; ROBERT KEHOE; BAUER, WINFREE, ANDERSON, FOUNTAIN 19 & SCHAUB, P.C.; BAUER, HERMANN, FOUNTAIN & RHOADES, P.C.; HENRY L. 20 BAUER; ANDREW H. WINFREE; SAMUEL L. ANDERSON; JAY M. FOUNTAIN; 21 WILLIAMJD SCHAUB; ALLEN A. FULSHER; IRA R. 22 WEATHERHEAD; HAINLINE & POPE, P.C.; HAINLINE AND O'DOHERTY P.C.; 23 THOMAS HAINLINE; J. BRYAN O'DOHERTY; GARY R. POPE, INVESTOR 24 SERVICE NETWORK, INC., an Oregon corporation; STUART D. MCXULLEN, 25 CAMERON SINCLAIR, DAVID HACKETT, CLARENCE WESTBY; U.S. SECURITIES 26 CLEARING CORP., and AMERICAN Page 1 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Telephone (503) 222-7475 v- au~ ~ Exhibit 14 Page -q 0 of -0--3 1 INSURANCE CO., ) 2 Defendants. ) 3 PARTIES 4 r", cy} 1 Plaintiffs each purchased units in RBR Design' f ` 6 r Embryonics I, a limited partnership in the amount of $40,500 per 7 unit. The number of units purchased , and the app roximate dates 8 that each plaintiff made his or her first payment in escrow for 9 the partnership units are as follows : 10 Thomas Blair 1 unit 12/30/85 11 Jeffrey Boly 1 unit 12/27/85 12 Howard Broussard 1 unit 12/31/85 13 David S. Davies 1 unit 12/31/85 14 Kenneth Holland and Barbara Holland 3 units 12/31/85 15 Dorsey Holt 1 unit 12/31/85 16 Andrew Holub 1 unit 12/30/85 17 John Kidby 1 unit 12/31/85 18 Jerald King 1 unit 12/14/85 19 Terry Lock 1 unit 12/26/85 20 Kirk Matteson 1/2 unit 12/24/85 21 Jay Maxwell 1 unit 12/05/85 22 Herbert Ormsby and Dona Ormsby 1/2 unit 12/10/85 23 Franklin Oswald and Nancy Oswald 1 unit 12/26/85 24 John Perrin 1 unit 12/21/85 25 Daryl Pohl and Melissa Pohl 2 units 12/31/85 26 Page 2 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97209-2740 Telephone (503) 222-7475 Exhibit Page C of 14- 1 Keith Raine and Joan Raine 2 units 12/17/85 2 The R.E. Stevens Company 1-1/2 units 12/27/85 3 James Robinson 3 units 12/23/85 4 Thomas Robinson and Susan Robinson 5 units 12/85 5 Charles Rooks 1 unit 11/27/85 6 Dennis Russell 1/2 unit 12/27/85 7 Jack Sipperly 1/2 unit 12/26/85 8 David Stoner 1 unit 12/26/85 9 Douglas Thompson and Betty Thompson 1 unit 12/05/85 10 Leland Waltuk 1 unit 11/21/85 11 2 12 Each plaintiff hereby asserts a claim in an amount 13 equal to the total amount paid in connection with his or her 14 investment in RBR Design Embryonics I and for all units purchased 15 even if not expressly stated herein, including all amounts 16 financed and all interest thereon. 17 3• 18 Defendants include the following individuals and 19 entities: 20 (a) RBR Defendants. The following defendants are 21 sometimes collectively referred to as the "RBR defendants." RBR 22 Design Embryonics I, an Oregon limited partnership, which is the 23 limited partnership in which plaintiffs invested; RBR, 24 Incorporated, an Oregon corporation, which was a general partner 25 and a controlling person of RBR Design Embryonics I at the time 26 Page 3 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street 1 Portland, Oregon 97204-2740 Exhibit y~ Telephone (5¢3) 222-7475 Page C~Z of a~ 1 of plaintiffs' investments; Timothy Myers and Shawn Dwyer, who 2 were at material times directors and controlling persons of RBR, 3 Inc. 4 (b) DeLashmutt Defendants. The following defendants 5 are sometimes collectively referred to as the "DeLashmutt 6 defendants." E. Keith DeLashmutt, Agnes M. DeLashmutt, and 7 Kameron K. DeLashmutt, who were general partners of RBR Design 8 Embryonics I at the time of plaintiffs' investments and who were 9 at material times controlling persons RBR, Inc.; Kimerick V. 10 DeLashmutt, who was at material times a director and vice 11 President of marketing for RBR, Inc. and a controlling person of 12 RBR, Inc., and who also sold the investment. 13 (c) Attorney Defendants. The following defendants are 14 sometimes collectively referred to as the "attorney defendants." 15 The law firm of Bauer, Winfree, Anderson, Fountain & Schaub, 16 P.C., which participated and materially aided in the transaction 17 described herein by drafting the confidential private placement 18 memorandum through which RBR Design Embryonics I limited 19 partnership units were sold and drafting the tax opinion letter 20 which was included in the offering memorandum; Henry L. Bauer, 21 Andrew H. Winfree, Samuel L. Anderson, Jay M. Fountain, William 22 D. Schaub, Allen A. Fulsher, and Ira R. Weatherhead, who were at 23 material times shareholders or associates in the law firm of 24 Bauer, Winfree, Anderson, Fountain & Schaub; and the law firm of 25 Bauer, Hermann, Fountain & Rhoades, P.C., which plaintiffs are 26 Page 4 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2746 Telephone (503) 222-7475 Exhibit /f Page of a _q3 _ 1 informed and believe is the successor to Bauer, Winfree, 2 Anderson, Fountain & Schaub, P.C. 3 (d) Accountant Defendants. The following defendants 4 are sometimes collectively referred to as the "accountant 5 defendants". Hainline & Pope, P.C. and Thomas Hainline and Gary 6 R. Pope, who prepared the projections included in the RBR Design 7 Embryonics I offering circular and thereby participated and 8 materially aided in the transaction; Hainline and O'Doherty, 9 P.C., the successor to Hainline & Pope, P.C.; and J. Bryan 10 O'Doherty, who was an employee of Hainline & Pope and is a 11 shareholder of Hainline and O'Doherty, P.C. and who sold five 12 units of the partnership to Thomas Robinson. 13 (e) Investment Capital Defendants. The following 14 defendants are sometimes collectively referred to as the 15 "Investment Capital defendants". Investment Capital Corporation, 16 its president, Steven S. Cooper, and its employees Robert Kehoe, 17 Cameron Sinclair and David Hackett, all of whom sold the 18 investment. In addition, Steven S. Cooper was at material times 19 a director and controlling person in RBR, Inc. 20 (f) Investor Services Network Defendants. The 21 following defendants are sometimes collectively referred to as 22 the "Investor Service Network defendants." Investors Service 23 Network, Inc., its chairman Stuart D. McMullen and its employee, 24 Shawn D. Dwyer, who sold the investment. 25 26 Page 5 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-274a Exhibit 14 Telephone (503) 222-7475 page Of ~~3 1 (g) Clarence Westby, who sold the investment to 2 plaintiffs Jerald King, Arlene Nicholson, Dorsey Holt and 3 Elizabeth Holt. 4 (h) U.S. Securities Clearing Corporation, the broker- s dealer through which the Investor Services Network defendants 6 sold the investment. 7 (i) American Insurance Company, the surety on the 8 bonds of U.S. Securities Clearing Corporation and Investment 9 Capital Corporation, which were obtained pursuant to ORS 10 59.175(4). 11 12 FACTS COMMON TO ALL CLAIMS 13 4' 14 In 1984 and 1985, defendants designed, organized, 15 registered for sale, promoted, bonded and/or sold or materially 16 Participated in the sale in Oregon and Washington units of 17 limited partnership in RBR Design Embryonics I Limited 18 Partnership ("partnership"), all as alleged more specifically 19 below. 20 5' 21 The partnership units were marketed as a program 22 designed to engage in sophisticated genetic engineering to 23 produce elite-quality Simmental cattle. The partnership was to 24 Purchase from the general partners up to 300 live, high quality 25 Simmental cattle embryos for transplant to cows which the 26 Page 6 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. Oak Street Exhibit Portland, Oregon 97204-2740 Telephone (503) 222-7475 Page 9-5 of 6-L X5 1 partnership leased from the general partners. Defendants claimed 2 that the partnership would produce progeny for an elite quality 3 Simmental donor herd as a result of the embryo transplant 4 operations. Beginning in 1987, the partnership was to generate 5 income to limited partners from elite quality bulls and/or cows. 6 produced by marketing semen, embryos and progeny produced by the 7 cattle and, eventually, by marketing the elite quality cattle 8 themselves. 9 6. 10 In fact, the partnership did not and will not generate 11 any income to the limited partners, and it was not reasonable to 12 represent that the partnership would generate such income. There 13 was not and is not a sufficient Simmental cattle market to 14 justify the objectives and plans of the partnership. 15 7' 16 The undisclosed; primary objectives of the DeLashmutt 17 and RBR defendants in organizing and selling the partnership was 18 to resolve the serious financial problems those defendants were 19 experiencing with the proceeds of the plaintiffs' investments. 20 Those defendants sought to do so by selling and leasing embryos 21 and donor cows to the partnership, and by charging the 22 partnership management, maintenance and administrative fees. 23 8' 24 The partnership units were sold to plaintiffs in part 25 through the use of a Confidential Private Placement Memorandum 26 Page 7 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Telephone (503) 222-7475 Exhibit 14 Page _(y of ao23 1 ("memorandum"). 2 9. 3 The memorandum contained the following material 4 misrepresentations: 5 a) that the partnership would begin its business 6 operations in 1985, when it did not; 7 b) projections that the partnership would begin to 8 generate income through the sale of embryos, cattle and semen in 9 1987, when there was no reasonable basis from which to conclude 10 that the partnership would generate income and in fact no income 11 was generated; 12 c) projections that partnership embryos would be 13 transplanted into recipient cows and sold on the open market for 14 an average price of $3,750.00, when there was no reasonable basis 15 in fact for the projected sales price; 16 d) projections that 12% of partnership embryos 17 would develop into elite quality Simmental donor heard, when 18 there was no reasonable basis in fact for the projection; 19 e) that the general partners and their affiliates 20 had a proven history of Simmental embryo sales, when they did 21 not; 22 f) that the partnership would sell nearly 200 23 embryos per year beginning in 1987, when there was no reasonable 24 basis for the projected sales and in fact such sales were not 25 achieved; 26 Page 8 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Telephone (503) 222-7475 Exhibit ;tjt Page _9~Z_ of aGL3 1 g) that Keith DeLashmutt would be instrumental in 2 operating the partnership, when in fact he would not be; 3 h) that the net worth of the general partners was 4 in excess of $2 million, when in fact it was not; 5 i) that the partnership was a viable investment 6 opportunity, when it was not, since market conditions for the 7 sale of Simmental embryos, semen and cattle made it impossible 8 for investors to realize any return on their investment. 9 10. 10 The memorandum omitted to disclose the following 11 material facts: 12 a) that there was never a sufficient market for 13 Simmental embryos, semen or cattle to support the stated 14 objectives, goals and financial projections for the partnership, 15 and that the insufficient market which did exist was known to be 16 shrinking not later than February, 1985; 17 b) that the general partners and their affiliates 18 had only sold a very small number of Simmental embryos prior to 19 offering the partnership units for sale; 20 c) that Keith DeLashmutt was to be divorced from 21 Agnes DeLashmutt prior the commencement of partnership operations 22 and had not and would not play any role in the operations of the 23 partnership; 24 d) that the amounts that the general partners 25 would charge for products and services was excessive; 26 Page 9 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers Port2andsoregon sizo¢z74o Exhibit Telephone (50) 222-7475 Page_ 9 ff of aa3 1 e) that the true purpose for creating the 2 partnership offering was to resolve the financial difficulties of 3 the River Bend Ranch and the DeLashmutts. 4 11. 5 Except for defendant American Insurance Company, 6 defendants and each of them made and are responsible for each of 7 the misrepresentations and omissions alleged above. 8 9 12. 10 The defendants knew, should have known or recklessly failed to discover the misrepresentations and omissions stated 11 12 above. 13 13. 14 Plaintiffs relied on the misrepresentations and 15 omissions in making their investments as alleged in paragraphs 1 16 and 2 above. Plaintiffs have realized no returns on their 17 investments. 18 14. 19 Plaintiffs did not discover and could not reasonably 20 have discovered the alleged misrepresentations and omissions 21 before November, 1988. 22 15. 23 Plaintiffs tender their partnership interests to 24 defendants. 25 FIRST CLAIM FOR RELIEF (ORS 59.115 and ORS 59.135) 26 Page 10 - FIFTH AMENDED COMPLAINT BANKS $ NEWCOMB Lawyers 209 S. Oak Street Exhibit Portland, Dre ragon 97204-2740 Telephone (503) 222-7475 Page ofaa3 1 16. 2 Plaintiffs reallege paragraphs 1 through 15 above. 3 COUNT ONE (RBR Defendants, DeLashmutt Defendants, Investment Capital 4 Defendants, Investor Services Network Defendants, Shawn Dwyer, U.S. Securities Clearing Corp., J. Bryan O'Doherty, 5 Hainline & Pope, P.C.) 6 17. 7 Defendants sold plaintiffs securities in the form of 8 partnership units by means of untrue statements of material fact 9 or omissions to state material facts necessary in order to make 10 the statements made, in light of the circumstances in which they 11 were made, not misleading, contrary to ORS 59.115(1)(b) and ORS 12 59.135. 13 18. 14 Defendant J. Bryan O'Doherty and Hainline & Pope, P.C. 15 sold to plaintiffs Thomas and Susan Robinson; Investor Services 16 Network Defendants, Shawn Dwyer and U.S. Securities Clearing 17 Corp. sold to plaintiffs Howard Broussard, Andrew and Terri 18 Holub, John H. Kidby, James Robinson, Thomas and Susan Robinson, 19 and David Stoner; Investment Capital defendants sold to 20 Plaintiffs Thomas and Rochelle Blair, Jeffrey Boly, David Davies, 21 Terry and Lynne Lock, Kirk and Teddie Matteson, Jay Maxwell, 22 Herbert and Dona Ormsby, Franklin Oswald, Daryl and Melissa Pohl, 23 Keith and Joan Raine, The R.E. Stevens Co., Charles S. Rooks, 24 Dennis Russell, Jack Sipperly, David Stoner and Leland Waltuk; 25 and the RBR and DeLashmutt defendants sold to all plaintiffs. 26 Page 11 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Exhibit Telephone (503) 222-7475 Page /DD of a2.3 1 19. 2 Defendants RBR, Inc., E. Keith DeLashmutt, Agnes M. 3 DeLashmutt, Kameron DeLashmutt, Steven S. Cooper, Shawn Dwyer, 4 and Timothy Myers were officers, directors, and/or controlling 5 persons of other defendants subject to Count One, contrary to ORS 6 59.115(3), and are jointly and severally liable for violations of 7 ORS 59.115(1)(b). 8 20. 9 Plaintiffs are entitled to recover the consideration 10 paid for their securities, together with interest since the date 11 of payment, their costs and reasonable attorney fees incurred 12 herein. 13 COUNT TWO (RBR Defendants, DeLashmutt Defendants, Investment Capital 14 Defendants, Investor Services Network Defendants Shawn Dwyer, U.S. Securities Clearing Corp., J. Bryan O'Doherty, 15 Hainline & Pope, P.C.) ) 16 21. 17 Defendants engaged in an act, practice or course of 18 business which operated as a fraud on plaintiffs, contrary to ORS 19 59.115(1)(a) and ORS 59.135. 20 22' 21 Defendants RBR, Inc., E. Keith DeLashmutt, Agnes M. 22 DeLashmutt, Kameron DeLashmutt, Steven S. Cooper, Shawn Dwyer and 23 Timothy Myers were officers, directors, and/or controlling 24 Persons of other defendants subject to the first claim for 25 relief, and are therefore liable to plaintiffs under ORS 26 Page 12 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Telephone (503) 222-7475 Exhibit /71" Page O t of a2 1 59.115(3). 2 3 23. Plaintiffs are entitled to recover the consideration 4 paid for their securities, together with interest since the date 5 of payment, their costs and reasonable attorney fees incurred 6 herein. 7 COUNT THREE (Attorney Defendants, Accountant Defendants) 8 9 24. 10 The partnership units were sold by means of untrue 11 statements of material fact and omissions to state material facts 12 necessary in order to make the statements made, in light of the 13 circumstances under which they were made, not misleading, as 14 alleged in paragraphs 5 through 13 above, all in violation of ORS 15 59.115 (1) (b) . 16 25. 17 The attorney defendants participated and materially 18 a'ded in the sales as follows: 19 a) by performing numerous services for the general 20 Partners for which they were paid in excess of $50,000.00, much 21 of which could not be paid unless and until sufficient limited 22 partnership units had been sold to plaintiffs; 23 b) by controlling the assets of the partnership 24 inasmuch as defendant Allen Fulsher was a required signatory on 25 the partnership checking account and approved of all 26 Page 13 - FIFTH AMENDED COMPLAINT BANKS $ NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Exhibit A" Telephone (500) 222-7475 Page / _ of ~a 1 expenditures; 2 c) by structuring the offering of the partnership 3 units; 4 d) by using their influence to obtain financing for 5 some plaintiffs' purchases at Tualatin Valley Bank; 6 e) by agreeing to solve any impediments to the 7 completion of the private placement for the partnership; 8 f) by working with Shawn Dwyer and Kameron DeLashmutt 9 on a daily basis for nine months to assist in the development, 10 registration and sales of the offering; 11 g) by providing office space, reception services and 12 other assistance to Shawn Dwyer and Kameron DeLashmutt to enable 13 them to sell the fraudulent offering; 14 h) by assisting in and encouraging the payment of 15 illegal sales commissions to James Gardner; 16 i) by arranging for financing for the DeLashmutts and 17 the partnership through Violet Weever, defendant Sam Anderson's 18 mother-in-law in California; 19 j) by providing Shawn Dwyer and Kameron DeLashmutt 20 with referrals to potential purchasers; 21 k) by attending sales meetings; 22 1) by organizing, drafting and approving of the 23 private placement memorandum which contained the 24 misrepresentations and omissions alleged above; 25 26 Page 14 - FIFTH AMENDED. COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Street Portland, Oregonk97204-2740 Exhibit Telephone (503) 222-7475 Page X03 of a-.~.3 1 m) by organizing, drafting and finalizing the bonding 2 provisions o f the offering; 3 n) by drafting the underwriting agreement for the 4 offering; 5 0) by drafting the closing documents for the 6 offering; 7 p) by drafting the tax opinion which was a necessary 8 part of the memorandum; 9 q) by intentionally concealing the general partners' 10 lack of expe rience in (i) embryo transfer; (ii) embryo and cattle 11 sales; (iii) commercial cattle operations; 12 r) by intentionally concealing Keith DeLashmutt's 13 lack of part icipation in the partnership; 14 s) by intentionally concealing the lack of a domestic 15 market for t he sale of Simmental cattle, semen and embryos in the 16 memorandum; 17 t) by preparing or approving of the false financial 18 projections that were a vital part of the memorandum; 19 u) by consulting with the underwriters and salesmen 20 to discuss s ales strategies for the partnership units; 21 v) by preparing the limited partnership agreement; 22 w) by attending partnership meetings; 23 x) by using their knowledge, judgment and assertions 24 as reflected in the contents of all documents that were material 25 to the sale. 26 Page 15 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Exhibit Portland, Oregon 97204-2740 Telephone (503) 222-7475 Page _/04 of a.a,3 26. 1 , 2 The accountant defendants participated or materially 3 aided in the sales as follows: 4 a) by performing numerous services for the general 5 partners for which they were paid in excess of $50,000.00, much 6 of which could not be paid unless and until sufficient limited 7 partnership units had been sold to plaintiffs; 8 b) by using their influence to obtain financing for 9 some plaintiffs' purchases at Oregon First Bank; 10 c) by working with Shawn Dwyer and Kameron DeLashmutt 11 on a daily basis for nine months to assist in the development. 12 registration and sales of the offering; 13 d) by providing office space, reception services and 14 other assistance to Shawn Dwyer and Kameron DeLashmutt to enable 15 them to sell the fraudulent offering; 16 e) by assisting in and encouraging the payment of 17 illegal sales commissions to James Gardner; 18 f) by providing Shawn Dwyer and Kameron DeLashmutt 19 with referrals to potential purchasers; 20 g) by preparing false and misleading financial 21 projections included in the memorandum; 22 h) by preparing a false financial report which was 23 the basis for a statement in the offering memorandum that the net 24 worth of general partners Keith and Agnes DeLashmutt exceeded $2 25 million; 26 Page 16 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street pTel phone (903)9222- 475 Exhibit 14 Page 6 S of as I i) by intentionally concealing the general partners' 2 lack of experience in (i) embryo transfer; (ii) embryo and cattle 3 sales; (iii) commercial cattle operations; 4 j) by intentionally concealing Keith DeLashmutt's 5 lack of participation in the partnership; 6 k) in structuring the partnership offering from both 7 tax and economic perspectives; 8 1) in obtaining financing for the partnership 9 offering; 10 m) in reviewing and commenting upon all financial and tax accounting documents associated with the partnership 11 12 offering; 13 n) in drafting or approving portions of the offering 14 documents which contained misrepresentations and omissions as 15 alleged above; 16 0) in assisting in the preparation of the closing 17 documents for the partnership, and in working to ensure the 18 closing of the partnership; 19 P) by participating in "due diligence" meetings with 20 the general partners, underwriters and salesmen; 21 q) by developing a sales plan and sales pitch for the 22 sale of partnership units to plaintiffs; 23 r) by active participation in the marketing of the 24 Partnership units; 25 s) by attending partnership meetings; 26 Page 17 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Exhibit Telephone (503) 222-7475 Page /D Cp of 2D. 1 t) by using their knowledge, judgment and assertions 2 as reflected in the contents of all documents that were material 3 to the sale. 4 27. 5 By virtue of their conduct as alleged above, the 6 attorney and accountant defendants are liable jointly and 7 severally with and to the same extent as the sellers for 8 violations of ORS 59.115(1)(b), by virtue of ORS 59.115(3). 9 COUNT FOUR. (Attorney and Accountant Defendants) 10 28. 11 The attorney and accountant defendants, directly or 12 indirectly in connection with the sale of the partnership units, 13 made untrue statements of material fact or omitted to state 14 material facts necessary in order to make the statements made, in 15 light of the circumstances under which they are made, not 16 misleading, as alleged more fully in paragraphs 3(c), 3(d), 8-13 17 and 25 and 26 above. 18 29. 19 The attorney and accountant defendants' actions 20 constitute violations of ORS 59.135 and are actionable under ORS 21 59.135 and/or ORS 59.115(1)(a). 22 COUNT FIVE 23 (Attorney and Accountant Defendants) 24 30. 25 26 Page 18 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Telephone (503) 222-7475 Exhibit Page / D rJ of P-a3 1 Defendants sold plaintiffs securities in the form 2 of partnership units by means of untrue statements of material 3 fact or omissions to state material facts necessary in order to 4 make the statements made, in light of the circumstances in which 5 they were made, not misleading, contrary to ORS 59.115(1)(b) and 6 ORS 59.135. 7 31. 8 The attorney and accountant defendants are liable 9 as sellers because they played a substantial role in the sales 10 and effected or attempted to effect sales, as alleged in 11 Paragraphs 25 and 26 above and oy the following conduct: 12 a) in allocating office space, telephones and other 13 support for several months to Shawn Dwyer and Kameron DeLashmutt, 14 who sold over $720,000 in partnership units using defendants' 15 resources; 16 b) for Ira R. Weatherhead and his law firm, in 17 providing Shawn Dwyer with a list of tax attorneys who would 18 promote the partnership to their clients;- 19 c) for J. Bryan O'Doherty and his accounting firm, in 20 introducing Shawn Dwyer to James Gardner and others who knew of 21 potential purchasers. 22 SECOND CLAIM FOR RELIEF (Section 12(2) of the Securities Act of 1933) 23 (RBR Defendants, DeLashmutt Defendants, Investment Capital Defendants, Investor Services Network Defendants, 24 Shawn Dwyer, Clarence Westby, U.S. Securities Corp.) 25 32. 26 Page 19 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Telephone (503) 222-7475 Exhibit 14 Page et of ~a3 1 Plaintiffs reallege paragraphs 1 through 22 above. 2 33. 3 Defendants, through the use and means of interstate 4 commerce or the mails, made untrue statements of material fact or 5 omitted to state material facts necessary in order to make the 6 statements made, in light of the circumstances in which they were 7. made, not misleading, contrary to 15 U.S.C. § 77(1)(2) 8 THIRD CLAIM FOR RELIEF (Negligence) 9 (All Defendants Except Accountants, Lawyers and American Insurance Co.) 10 34. 11 Plaintiffs reallege paragraphs 1 through 22. above. 12 35. 13 Each of the defendants owed plaintiffs a duty of care 14 to provide accurate and complete information regarding the 15 partnership and its proposed operations. 16 36. 17 Defendants breached their duty to plaintiffs, causing 18 plaintiffs' damages as set forth in paragraph 2 above. 19 20 21 22 23 24 25 26 Page 20 - FIFTH AMENDED COMPLAINT BANKS S NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Telephone (503) 222-7475 Exhibit 14 Page ~0 ~j of as 1 2 FOURTH CLAIM FOR RELIEF (Washington Securities Statutes) 3 (RBR Defendants, DeLashmutt Defendants, Clarence Westby, Thomas Accounting) 4 37. 5 Plaintiffs Jerald King and Arlene Nicholson and Dorsey 6 Holt and Elizabeth Holt reallege paragraphs 1 through 22 above. 7 38. 8 Defendants sold the plaintiffs listed in the foregoing 9 paragraph securities in the State of Washington, in violation of 10 RCW 21.20.430, RCW 21.20.010 and RCW 21.20.020. 11 39. 12 Plaintiffs are entitled to recover the consideration 13 paid for their securities, together with interest at the legal 14 rate, plus their reasonable attorney fees and costs incurred. 15 FIFTH CLAIM FOR RELIEF 16 (Breach of Contract) (American Insurance Company) 17 40. 18 Plaintiffs reallege paragraphs 1 through 22 above. 19 41. 20 Pursuant to ORS 59.175(4), American Insurance Company 21 acted as surety and bonded defendants Investment Capital 22 Corporation and U.S. Securities Clearing corporation, in the 23 amount of $10,000.00 each. The bonds were given to ensure the 24 fidelity of defendants. 25 42. 26 Page 21 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers 209 S. W. Oak Street Portland, Oregon 97204-2740 Telephone (503) 222-7475 Exhibit f-{ Page 11O of p,~ 1 Based upon the conduct of defendants as alleged above, 2 plaintiffs are entitled to the proceeds of the bonds. 3 4 WHEREFORE, plaintiffs pray for relief as follows: 5 1. On their first and fourth claims for relief, for the 6 amount of plaintiffs' investments, plus interest from the time 7 the investments were made at the legal rate, plus costs and 8 reasonable attorney fees incurred. 9 2. On their second and third claims for relief, for the 10 amount of plaintiffs' investments, plus interest from the times 11 the investments were made at the legal rate, plus their costs 12 incurred. 13 3. On their fifth claim for relief, for judgment in the 14 amount of $20,000.00 against defendant American Insurance 15 Company. 16 4. For such other relief as the court deems 17 appropriate. 18 PLAINTIFFS DEMAND A JURY TRIAL. 19 DATED MAY 30, 1990 20 BANKS & NEWCOMB 21 22 Robert S. Banks, Jr. OSB #8 186 23 Of Attorneys for Plaintiffs 24 25 26 Page 22 - FIFTH AMENDED COMPLAINT BANKS & NEWCOMB Lawyers ,209 S. W. Oak Street Portland, Oregon 97204-2740 Telephone (503) 222-7475 Exhibit Page /11 of ~a NiE-RED 1 IN THE CIRCUIT COURT OF THE STATE OF 2 FOR THE COUNTY OF MULTNOMAH 3 DAVID STONER, et al., 4 Plaintiffs, 7 v C. {1' GON IN REGI:x i ER BY SO No. A8812-06887 5 vs. ) PROTECTIVE ORDER 6 RBR DESIGN EMBRYONICS an Oregon limited partnership, ) 7. et al., 8 Defendants. ) u" T_-P. WHEREAS, the undersigned parties to the above-captz'ioned h,~r 10 action have reached a mutually agreeable settlement; and 11 WHEREAS, as a part of that settlement, the parties 12 hereto have entered into a confidential settlement agreement 13 which, in pertinent part, provides that the facts of the settle- 14 ment and its terms are and shall remain confidential, 15 IT IS HEREBY ORDERED: 16 1. That the settlement of this case, and the terms 17 and conditions of that settlement, are and shall remain confideh- 18 tial ; 19 2. That disclosure of the terms or conditions of the 20 settlement is strictly prohibited except as provided by the 21 agreement itself or ordered by this court; and 22 3. That violation of any terms and conditions of the 23 confidential settlement agreement, and particularly any and all 24 provisions relating to or pertaining in any way to confidential- 25 ity of the settlement, may subject the violator to punishment for 26 Page 1 - PROTECTIVE ORDER KENNEDY, KING & ZIMMER Attorneys at Law 2600 Pacwest Center 1211 S. W. Fifth Avenue Portland, Oregon 97204-3726 Telephone (503)228-6191 4545PWJA.BOL Exhibit 4 Paize 112- of,=3 1 contempt in the case and in the manner provided by Oregon law. 2 DATED this 31 day of 1990. 3 4 .t- 5 L nin s w Circuit urt Judge 6 7 IT IS SO STIPULATED: 8 BANKS & NEWCOMB 9 10 B Y 11 Robert S. Banks, Jr.,`OSB No. 82186 Of Attorneys for Plaintiffs 12 BITTNER & BARKER, P.C. 13 14 By -7/1 ~ 15 Jo R. Barker, OSB No. 73021 Of torneys for Accountant 16 Defendants 17 KENNEDY, KING & ZIMMER 18 19 BY Jos h C. Arellano, OSB No. 80151 20 Of Attorneys for Attorney Defendants 21 22 23 24 25 26 Page 2 - PROTECTIV9 ORDER KENNEDY, KING & ZIMMER Attorneys at Law 2600 Pacwest Center 1211 S. W. Fifth Avenue Portland, Oregon 972043726 Telephone (503) 228-6191 4545PWJA.BOL Exhibit_ Page 113 4 of DA FORM 170 G.J. 187 (B) Xxx WkLo 02rc2%XAt ®colm-m-t ®:E 43kaft &-tffi1La cs:E ®r®jWo3m Z"qMr ®c~OMMML%W THE STATE OF OREGON, Plaintiff, vs. _ , , . KAME RON KEITH DELASHMUTT, M/W; DOB: 9-26-59; 5'11"; 160 lbs; LKA: 136 South 2nd (Redmond); PPDS #590418; SID #5897854; Defendant. IN THE NAME OF THE STATE OF OREGON: September 23, 1988 TO ANY PEACE OFFICER OF THIS STATE, GREETING: An indictment having been filed in the Circuit Court for the County aforesaid, charging the above-named defendant with the offense of DELIVERY OF A CONTROLLED SUBSTANCE (Schedule II: cocaine) YOU ARE COMMANDED to arrest the above-named defendant forthwith and bring said defendant before me, or, in case of my absence or inability to act, before the nearest or most accessible magistrate in this county, or if no magistrate is available, to deliver said defendant into the custody of the Jailer of this county. O You are hereby authorized to enter premises in which you have probable cause to believe that the above-named defendant is present, without giving notice of your authority and purpose. Security Amount: Issued in the above county on e C 88-09-36554 ® DA 379479 SECRET ® OSP 87-058 Shuttle WARRANT OF ARREST ORS. 475.992 Circuit Judge for hltnomah County The undersigned Peace Officer hereby returns that he has executed the within WARRANT by arresting the within-named defendant on E rlr>( "U "L D ~L[3 AN, S,p~T f~t ✓7. WARRANT OF ARREST RETURN OF SERVICE Isl ,q~,11 O~ tl Name: - ~ ,x rytYDe or print yw 8~ t,•'~> n ~t a 1 1 ~ III""" Exhibit 14 Page L of ap-3 IN THE CIRCUIT COURT OF THE STATE OF OREGQN, FOR THE COUNTY OF MULTNOMAH n STATE OF OREGON, Plaintiff Case NO v ~/JlVi/ ~CLs~' S d /l/t t T07Ek MOTUN ~gj- s: Defendant. F E B 13 1989 On the motion of the [ ] District Attorneyl Defense Attdrney,~ N . ~ . , 1. : x Opposing party: Consents [ ) Opposes r I t 1al now set for Z 7 1 u sted 3 / ~ 3! „ New date reque Custody status: Jail [ yes [ ] no G.N I C jj Arrest date Number of n, U, 01Q T71 'S S__,, days from arrest to date Number of prior requests by State Ci Defense REASON FOR SETOJER : A.) DU I ~ C C /\j Z' I--7C AJ ti~~'V1y nJ ~ (~q C 0 v,Aj S P I District Attorney L-7'rt 4-~ Defense Attorney Lt S,^, (V J GRANTED [ ] DENIED NEW TRIAL DATE 3 Z 3~j TAIF Distribution: File Chief Judge Defense Attorney District Attorney MOTION FOR TRIAL SETOVER CC 171 (REV 5/85) Exhibit 14 Page J16-- of a.a3 ENTERED MAY 2 4 1989 Its REGISTER SY P~ ~ I the Circui strict Court of the State of OLO*- for Multnomah County STATE OF OREGON, Plaintiff, v. f C y~ 199%) 3 (A 3Z DA No. Citation No. PETITION TO PLEAD GUILTY/ NO CONTEST AND WAIVER OF - = i= L` JURY TRIAL cw C) Defendant. The defendant represents to the Court: 1. My full true name is kA A, ~LOAI JFLA~~~ My but I also am known as 2. I am L- years of age: I have gone to school through :in My physical and mental h - any drugs or intoxicants, except 3. I undmTftnd my r gNF1o hire o- ia ave a our me. (a) I am represented by: L i SA Mprk E71 ~z D (b) I choose to give up my right to a lawyer;'I will represent myself: (defendant's initials). 4. I have told my lawyer all the facts I know about the charge(s) against me. My lawyer has advised me of the nature of the charge(s) and the defenses, if any, that I have in this case. I am satisfied with the advice and help I have received from my lawyer. 5. I understand that I have the following rights: (A) the right to a jury trial; (B) the right to see, hear and cross-examine or question all witnesses who testify against me at trial; (C) the right to remain silent about all facts of the case; (D) the right to subpoena witnesses and evidence in my favor; (E) the right to have my lawyer assist me at trial; (F) the right to testify at trial; (G) the right to have the jury told, if I decide not to testify at trial, that they cannot hold that decision against me; and (H) the right to require the prosecutor to prove my guilt beyond a reasonable doubt. 6. I understand that I give up all of the rights listed in paragraph 5 when I plead guilty/no contest. I also understand that I give up: (A) any defenses I may have to the charge(s); (B) objections to evidence; and (C) chal- lenges to the accusatory instrument. 7. I want to plead Guilty/No Contest to the charge(s) of _655 &551 &-J 0 F A CGAI `►.ro I LZA Syk S-rVJC.i✓-- ~~-r JE•~+~ U 8. I know that a No Contest Plea will result in a Guilty finding regarding the charge(s) listed in Paragraph 7. 9. I know that when I plead Guilty/No Contest to the charge(s) in paragraph 7, the maximum possible sentence is Z 0 f S years in (prison) (jail), and a fine with assessments totaling $ 2-00 Qa U , in- cluding a mandatory fine of $ I also know that the Court can impose a minimum sentence of D t 2 ~L s1EAf'5 . Further I know that these maximum and minimum sentences can be added to sentences in these other cases: Finally, I know that my driver's license (can) (wiffldcan a suspended for 10. I understand that I might (o ill not ) be sentenced as a dangerous offender, which could increase each maximum sentence to 30 years, wit a -year minimum. 11. I have been told that if my crime involved my use or threaten pt p of a firearm I can receive a mandatory minimum sentence without parole or work release for a period of 12. I know that if I am not a United States citizen, my plea may result in my deportation from the USA, or denial of naturalization, or exclusion from future admission to the United States. 13. I know that this plea can affect probation or parole and any hearing I may have regarding probation or parole. If probation or parole is revoked, I know that the rest of the sentence in each of those cases could be imposed and executed, and could be added to any sentence in this case. CC 29-1 PETITION TO ENTER PLEA (12/87) Exhibit 14 Page / f of aa.3 14. I know that the sentence is up to the Court to decide. The District Attorney may provide reports or other information if requested by the Court. I understand that the District Attorney will make the following recommen- dation to the Court about my sentence or about other pending char es. This recommendation is ( ) is not( Y ) made pursuant to ORS 135.432(2): Dro ba o J L J 1 T - D i t- F L~ Co M .A E 5 6z .a CO ,v ..PS i _no AJ S 15-A. I lead Guilt because, i Multno a unt O e o I di the followin 2 L 6 K) I " 6 11 ff l 1 . h E t_ r'v,6-t ac " r - ' _ t ' ( V 5f - D,; • ~655~7 1 - - 15-B. I plead No Contest because (A) I understand that a jury or judge could find me guilty of so I prefer to accept the plea offer (defendant's initials: of (B): 16. I declare that no government agents have made any threats or promises to me to make me enter this plea other than the District Attorney's recommendation set forth in Paragraph 14, except: 17. I am signing this plea petition and entering this plea volu n ntelli nt , and kn ngly. I°1) (Date) efendant's Si a re) c L i v E7r ~ /1n C4--j S 1 o Ss C~ 5S E-Ts co C 1 -1,V (~7 t-0 t i ~-i T1- E t fti ► 770 1~ i V 6.~- t T 1? L2 T' t C-✓'f-s CERTIFICATE OF COUNSEL I am the lawyer for the defendant and I certify: 1. I have read and explained fully to the defendant the allegations contained in the accusatory instrument(s). I believe defendant understands the charges and all possible defenses to them. I have explained alternatives and trial strategies to defendant. 2 I have explained to the defendant the maximum and minimum penalties that could be imposed for each charge and for all charges together. 3. The plea(s) offered by defendant is (are) justified by my understanding of the facts related to me. 4. To the best of my knowledge and belief, the declar ons made by defendant in the foregoing petition are true and accurate. 5. Defendant's decision to enter the plea is ma volunt e igen , and knowingly. I recommend that the Court accept the plea. I have signed this certifica a in the presence of e e after f discussion of its contents with the defendant. (bate) s Signature) (Bar No.) charge(s), CC 29-2 PETITION TO ENTER PLEA (12/87) Exhibit ~4 Page L(51 of uD. q8' 9 STATE OF OREGON v IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH fj Case # 88-09-36554 DA # 379479 KAMERON KEITH DELASHMUTT Defendant, 1. HEARING DATE 10/19/89 Chuck French Lisa Maxfield 1 Mary Ann Gianni 5. DEFENDANT IS [ ] IN CUSTODY . [X] ON RECOGNIZANCE [ ION SECURITY RELEASE 6. It is adjudged that DEFENDANT has been convicted of his/her plea of: U GUILTY [ ] NO CONTEST [ ] NOT GUILTY and Judgment of Guilty [ ] NOT GUILTY and VERDICT of GUILTY of the CRIME OF: DCS II 7. IT IS FURTHER ADJUDGED THAT: the Defendant is sentenced to: [ ] A term of imprisonment for an indeterminate period, the maximum not to exceed ; Defendant is committed to the legal and physical custody of the Oregon State Corrections - Division, with credit for all time served on the within case. [ ] A term of imprisonment for ; Defendant is committed to the custody of the Director of Corrections, Multnomah County, Oregon, with credit for all time served on the within case. 8. Sentence to run [ ] CONCURRENTLY with [ ] CONSECUTIVE to that imposed in (list the case number(s) that apply): 9. Count(s) (enter charge(s)) is/are hereby dismissed. 10. [ X] Imposition [ ] Execution of sentence is suspended and the defendant is placed on probation for a period of 5 years, subject to the standard conditions and any special conditions indicated on the Special Probationary Conditions attached hereto, said probation to be to: [ Oregon State Corrections Division [ ] Probation /Parole Division, Multnomah County, Oregon [ ] Bench Probation 11. Defendant is: [ ] Ordered to pay restitution in the amount of $ , subject to the Restitution Conditions attached hereto. [ ] Sentenced to pay a fine in the amount of $ [ ] Sentenced to pay costs/attorney fees in the amount of $ [X ] Sentenced to pay a Probation Fee of $ 10.00 per month beginning . [X] Sentenced to pay a Victims Compensation Fee of $ 50. 00 [ ] Victims Compensation Fee is hereby waived. 12. Security on Appeal is set at $ Distribution: White - Court File E jhrl~E3,7.' ATE OF OR R: October 19, 11989 Blue - District Attotney Green - Corrections 0 CT 19 1989 Yellow - Defense Attorney Pink - Sheriff I UDGE Steph n Gall ,gher, Jr. Goldenrod - Judge IN' -&STE' Y PL Exhibit 7-AR - 7iirlamant JUDGMENT =i .r 2. DISTRICT ATTORNEY 13. DEFENSE ATTORNEY 1 4. REPORTER of IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH STATE OF OREGON Case No. 88-09-36554 Vs. DA No. 379479 KANERON KEITH DELASHMUTT JUDGMENT ORDER (Supplemental) Defendant. Page 2 of 2 RESTITUTION TO BE PAID TO ( ENTER NAMES, ADDRESSES AND -TOTAL AMOUNTS): $ S 8 8 TOTAL NO. OF VICTIMS: Special Probationary Conditions: All conditions of probation are concurrent with 88-10-36932, except condition #3, payment of financial obligations. 1. Follow all standard conditions of probation. 2. As a condition of probation, defendant shall serve 24 days at Multnomah County Correcitons Division, with work release. Defendant shall turn himself in on December 1, 1989 and serve until 12/24/89. 3. Pay court ordered financial obligations, to Multnomah County Court. 4. Complete 100 hours of Alternative Community Service. 5. Defendant shall have diminished 4th Amendment rights. 6. Have drug treatment/evaluation. 7. Do not use, sell or frequent places where intoxicants are sold,used. 8. No association with drug users. 9' Submit to random urinalysis. 10. Permission to leave the country for ess purposes is granted. DATE: October 19. 1989 CC 249 SUPPLEMENTAL JUDGMENT ORDER Stephen -36 r Jr. Exhibit 14 Page 9 of a 3 I IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF MULTNOMAH 3 STATE OF OREGON, 4 5 v. Plaintiff, 6 KAMERON K. DELASHMUTT, 7 Defendant. No. 88-10-36932 and 88=;09 3.6554 MOTION TO POSTPONE JAIL SURRENDER DATE 8 The defendant, Kameron K. Delashmutt, through counsel, 9 hereby moves this Court for an order postponing his jail 10 surrender date which is currently scheduled for December 1, 1989 11 for 60 days. The defendant makes his motion on the grounds that 12 his wife recently gave birth to a baby who was more than three 13 months premature. The child and his mother are currently 14 hospitalized in Portland and Mr. Delashmutt is needed in Redmond, 15 Oregon to care for his other two children, ages three and seven 16 months 11 DATED this 1i~ day or November, 1989. 18 Respectru11y submitted, i9 : T_. E'l L) ?NTES Tom, ALP w 20 21 LISA A. MF:XFIELD, OSB #84433 22 Of Attorneys for Defendant Delashmutt 23 24 r 25 _ ~WTERED ~ I 26 D E C - 1 1989 Page IN REGISTER By MOTION TO POSTPONE JAIL SURRENDER DATE ALL ~ RANSOM, BLACKMAN & WEIL Attorneys at Law American Bang: Building 6?'. S. W. Morrison Street cortiand, Oregon 97205 Exhibit Teieohcne (SGT) 226-0487 14 Teiecopier !5031 227.0 Page ltd of a DESCHUTES COUNTY COMMUNITY CORRECTIONS PURPOSE OF REPORT: Special Report DATE: January 3, 1994 BY: Jim Dunaway, *1563 Adult Field Services 1128 NW Harriman Bend, OR 97701 385-3246 IDENTIFYING DATA: Name: Address: SID Number: Age/DOB: Crime(s): Case Type: Sentence(s): County/Docket#: Judge: Exp4rat-ion Date SPECIAL CONDITIONS: DELASHMUTT, Kameron Keith 65405 73rd Street, Bend, OR 5897854 34 / 09/26/59 - DCS; PCS _ FPR 5 Yrs. Probation 10/19/89 - Multnomah / 88-10-36932; 88-10-36554 Stephen L. Gallagher, Jr. 10/18./94 Please refer to judgment order. CONFORMANCE/EVALUATION: Delashmutt has been supervised by this office since November 1989. He has completed all special conditions of the Court and has been no problem while under probation supervision. He has been supervised on a mail-in basis for the last couple of years. He is employed full-time and it is believed that the purposes of probation have been served. RECOMMENDATION: It is respectfully recommended that Delashmutt on 10/19/89 be terminated. 1 unaway tiPariole and Probation Officer lt Field Services c: Judge Gallagher District Attorney File the probation granted to Kameron Keith Oland Gangstee Division Manager Adult Field Services gg~ 5 Exhibit Page /2/ ofaa3 IN THE-.. RCUIT COURT FOR THE STATE OREGON NOT SG L' FOR THE COUNTY OF MULTNOMAH STATE OF OREGON V. KAMERON KEITH DELASHMUTT Date of Proceeding: 2/3/94 Probation Officer: Jim Dunawa Circuit Court No.: 88-09-36554 District Attorney No.: 379479 Charge: DCS II Count No.: I ORDER AND JUDGMENT REVOKING PROBATION ORDER AND JUDGMENT CONTINUING PROBATION X OTHER: EARLY TERMINATION Deschutes Co. Def. Atty: - Bar No.... Court Reporter: Dist. Atty: Bar No... Cassette No.. CUSTODY STATUS: - Custody; _ Recognizance; Security Posted; _ Matrixed. I. The Court finds the defendant not in violation and probation is continued. a 11 ; U.. La d a + . The Court icLnds the epFendant in violation of probation as follows: - Absconding supervision; New criminal activity; - Failure to pay court-ordered obligations; - Failure to enter and/or successfully complete programs; - Other- Vu NOW THEREFORE IT IS ORDERED AND ADJUDGED THAT DEFENDANT'S: , A. Probation is continued and; _ B. Probation is extended from to _ C. The following condition(s) is/are added: - D. The following probationary condition(s) is/are vacated- X E. Other: Probation shall be tprTninntpA DATED: February 3, 1994 ~ Judge St-ephen L. ;Gallas r, JR. PROBATION ORDER AND JUDGMENT' 1 of 1 (CC 36-1) 08/91 Original: Court / Blue: D.A. / Green: Probation J Yellow: Defense Atorn~q-7 Fiia'il~'old: Judge's File. Exhibit Page /Z 2- of ~a3 I the Circui strict ourt of thetate of Oregon for,mah County STATE OF OREGON, Plainto No. Citation No. V. PETITION TO PLEAD GUILTY/ -mot NO CONTEST AND VdAIVER OF C) C.,:. JURY TRIAL rv co Defendant. -n C7 C) r, CD The defendant represents to the Court: "3 r 1. My full true name is - kAAA E1\-0A1 Cc-~4b I-1 M L) T y but I also am known as E6 2. 1 am Zf:l- years of age. I have gone to school through My physical and mental health Pre *;cf . _ _ any drugs or intoxicants, except L~ Sr 4 R( G not 3 314- v h.5 Cc) I ref 3. I underst'arrd my ng to ire or ave . e ou - me. (a) I am represented by: Li 5A M)-k t= IUD (b) I choose to give up my right to a lawyer; I will represent myself: (defendant's initials). 4. I have told my lawyer all the facts I know about the charge(s) against me. My lawyer has advised me of the nature of the charge(s) and the defenses, if any, that I have in this case. I am satisfied with the advice and help I have received from my lawyer. 5. 1 understand that I have the following rights: (A) the right to a jury trial; (B) the right to see, hear and cross-examine or question all witnesses who testify against me at trial; (C) the right to remain silent about all facts of the case; (D) the right to subpoena witnesses and evidence in my favor; (E) the right to have my lawyer assist me at trial; (F) the right to testify at trial; (G) the right to have the jury told, if I decide not to testify at trial, that they cannot hold that decision against me; and (H) the right to require the prosecutor to prove my guilt beyond a reasonable doubt. 6. 1 understand that I give up all of the rights listed in paragraph 5 when I plead guilty/no contest. I also understand that I give up: (A) any defenses I may have to the charge(s); (B) objections to evidence; and (C) chal- lenges to the accusatory instrument. 7. I want to plead Guilty/No Contest to the charge(s) of ~655X55iG~ of A (`~~,~.roII~a 5 4J11 S-r-,-nJ6-- -.0- 1cC_1(/6--`-7 OF y~ C c- NJ-7-r o L-c M .sJ f.&, 5rA ni C-E 8. I know that a No Contest Plea will result in a Guilty finding regarding the charge(s) listed in Paragraph 7. 9. I know that when I plead Guilty/No Contest to the charge(s) in paragraph 7, the maximum possible sentence is Z 0 1 S years in (prison) (jail), and a fine with assessments totaling $ ZOOS Qr U , in- cluding a mandatory fine of $ I also know that the Court can impose a minimum sentence of I ~ t _ ' ~L S1 Further I know that these maximum and minimum sentences can be added to sentences in these other cases: Finally, I know that my driver's license (can) e suspended for 10. I understand that I might ill not ) be sentenced as a dangerous offender, which could increase each maximum sentence to 30 years, wit a -year minimum. 11. I have been told that if my crime involved my use or threaten use of a firearm I can receive a mandatory minimum sentence without parole or work release for a period of 12. I know that if I am not a United States citizen, my plea may result in my deportation from the USA, or denial of naturalization, or exclusion from future admission to the United States. 13. I know that this plea can affect probation or parole and any hearing I may have regarding probation or parole. If probation or parole is revoked, I know that the rest of the sentence in each of those cases could be imposed and executed, and could be added to any sentence in this case. CC 29-1 PETITION TO ENTER PLEA (12/87) Exhibit 4-4 Page 1,,?~ of a-Z)-3 14. 1 know that the sentence is up to the Court to decide. The District Attorney may provide reports or other information if requested by the Court. I understand that the District Attorney will make the following recommen- dation to the Court about my sentence or about other pending charges. This recommendation is ( ) is not (Y ) made pursuant to ORS 135. 612(2): 'Pro a.-no O ~.J I T-, 4 D 1 t_ t F Co , a 15-A. I plead Guilty be use, i~ }S Multno ah llpunt O e o I diNLhe followin Z L r c~SSGSSCp Lu •G~ L 1 A~ ft% 60 EU1,L/ 15-B. I plead No Contest because (A) I understand that a jury or judge could find me guilty of th charge(s), so I prefer to accept the plea offer (defendant's initials: of (B): 16. I declare that no government agents have made any threats or promises to me to make me enter this plea other than the District Attorney's recommendation set forth in Paragraph 14, except: 17. I am signing this plea petition and entering this plea Xvoluritelli nt 3 , and k(Date) efendant's i c i v E i+~► c A-~ S P o sS s SE7t Co C '9--, ,U C- W i TH-E t I T I? U_r t ~-✓rl-~ A- 7,e sre-D F (---s r CERTIFICATE OF COUNSEL I am the lawyer for the defendant and I certify: 1. I have read and explained fully to the defendant the allegations contained in the accusatory instrument(s). I believe defendant understands the charges and all possible defenses to them. I have explained alternatives and trial strategies to defendant. 2 I have explained to the defendant the maximum and minimum penalties that could be imposed for each charge and for all charges together. 3. The plea(s) offered by defendant is (are) justified by my understanding of the facts related to me. 4. To the best of my knowledge and belief, the declar ions made by defendant in the foregoing petition are true and accurate. 5. Defendant's decision to enter the plea is ma volunt e igen , and knowingly. I recommend that the. Court accept the plea. I have signed this certifica e in the presence of e e a ter f discussion of its contents with the defendant. (Da e) s Signature) CC 29-2 PETITION TO ENTER PLEA (12/87) L T -cw (Bar No.) Exhibit Page ~l~of~- -eN s Iu the Cirouit Court oY the WIMte CW Oregou for Multaomal~~uty ti THE STATE OF OREGON, Plaintifl vs. 1(! Residence and phone. .yr No. C _ Cr DAT. ORDER ENTERING PLEA OF GUILTY CO PURSUANT TO PETITION FILED tom.? W Defendant r IT IS ORDERED t t tile following he enter of record: ~ A Ap e arances: Dep. DA: '/J- f. Att. defendant's plea of GUILTY: and arraignment (truly named in charging instrument, or as follows: - /,cs ) to as charged in M count, indictment, information, complaint ) count{,) of the indictment. ) other cases, Nos the following matters be continued pending disposition of the within case: indictment; to the lesser, included offense of ( defendant's withdrawal of his former plea of Not Guilty and his Plea of GUILTY. O this case continued pending receipt of a presentence investigation conducted by_ the Corrections Division: ( long form: . ( ) previous report updated; must be received by Diagnostic ('enter, must be received by ( - ► other ( this case continued for sentence to (day, date and time) the within matter be continued to a later date yet to he determined by the Court other DATED this day of t 7 J GL DISTRIBUTION Original: File Yellow: Def. Art. Pink: Court Goldenrod: DA Green: DA CC 85 ORDER ENTERING PLEA short form car? CDC-, Exhibit Page /d:5 of 2a3 ML NOMAH COUNTY CIRCUIT COW, CASE NUMBER: C-o / l STATE OF OREGON ( ) PRESENTENCE REQUEST. ~~"j~(/~ vs ( ) RELEASE/BAIL INFORMATION lt/iil/l.y__-~" j'%E%(/~...-`7`L a'ya~✓- ( ) TRANSPORTATION Defendant CHARGES: Z PURPOSE: ( ) PLEA (;,SENTENCE ( ) PROBATION VIOLATION ( ) OTHER CUSTODY STATUS: ( ),JAIL ( ) RECOG ( BAIL r DEFENSE ATTORNEY: Z~-; v ,zz.4~~~ Z . DISTRICT ATTORNEY:_ .l 4 z COURT REPORTER:- XA4 ~ t ve LI'L~t-vLJ~ PRESENTENCE INVESTIG OUEQVEST GUILTY BY: ( ) PLEA ( ) JURY VERDICT or ( ) COURT ERTERED REQUESTED BY JUDGE: SENTENCING JUDGE: SENTENCING DATE: REFERRAL TINT 1 TE ) COUNTY DATE OF REFERRAL: e IN REGISTER BYLLLJ RELEASE AND BAIL IN'FDFMrATM'- _ ( ) THE DEFENDANT BE IMMEDIATELY RELEASED FROM CUSTODY., ( ) BAIL SET AT IS REDUCED TO INCREASED TO TEMPORARY TRANSPORT AND CUBING ORDER LLB ( ) The defendant be imprisoned for: YEARS MONTHS DAYS At the: ( ) OREGON STATE CORRECTIONS J/j MULTNOMAH COUNTY CORRECTIONS COMMENCING: ( ) At once ( ) Other SENTENCE: (Years probation) S~State ( ) County ( ) THE DEFENDANT BE CONTINUED ON PROBATION. ( ) PROBATION IS REVOKED. RESTITUTION COURT ORDERED FINANCIAL OBLIGATIONS Deferred payment beginning: FINE Pay at the rate of $ per month Q0 4. Cn C7 ATTORNEY FEES $ SUPERVISION FEE $ J PENALTY ASSESSMENT $ ALTERNATIVE COMMUNITY SERVICE: v HOURS ( ) NO ALCOHOL ( ) ALCOHOL TREATMENT EVALUATION ( ) NO DRUGS ~Xj DRUG TREATMENT/EVALUATION ~i ~S ( ) MENTAL HEALTH TREATMENT ( ) POLYGRAPH TESTING DIMINISHED 4th AMENDM NT RIGHTS. i OTHER: /)TD, /i [ "TRIAL DATE: C~JSi ir,~> i "2 . • ~iy S NEW DATE: r~~ CC128 COURT - WHITE Exhibit Page ld-& of a c=e- IN THE CIRCUIT COURT OF THE STATE OF OREGON FOP THE COUNTY OF MULTNOMAH coo STATE OF OREGON Case # 88-10-36932 °~.1 v DA # 375560 Fj`;j CAS 4 i.. . KAMERON KEITH DELASHMUTT JUDGMENT 0G N 0 19893 Defendant, 10/19/89 Chuck French .I Lisa MAxfield 4. REPORTER Mary Ann Gianni 2. DISTRICT ATTORNEY 1 3. DEFENSE ATTORNEY 1. HEARING DATE 5. DEFENDANT IS [ ] IN CUSTODY [X] ON RECOGNIZANCE [ ION SECURITY RELEASE 6. It is adjudged that DEFENDANT has been convicted of his/her plea of: [)I GUILTY [ ] NO CONTEST [ ] NOT GUILTY and Judgment of Guilty [ ] NOT GUILTY and VERDICT of GUILTY of the CRIME OF: PCs II 7. IT IS FURTHER ADJUDGED THAT: the Defendant is sentenced to: [ ] A term of imprisonment for an indeterminate period, the maximum not to exceed ; ,~Liel te-,dant is committed ~ and physical custody Of the Oregon State Corrections „ to the s~.eg a~ a,n, Pg.,nn ectio_ns _ Division, with credit for all time served on the within case. [ ] A term of imprisonment for ; Defendant is committed to the custody of the Director of Corrections, Multnomah County, Oregon, with credit for all time served on the within case. 8. Sentence to run [ ] CONCURRENTLY with [ ] CONSECUTIVE to that imposed in (list the case number(s) that apply): 9. Count(s) (enter charge(s)) is/are hereby dismissed. 10. [ X] Imposition [ ] Execution of sentence is suspended and the defendant is placed on probation for a period of 5 years, subject to the standard conditions and any special conditions indicated on the Special Probationary Conditions attached hereto, said probation to be to: Oregon State Corrections Division. [ ] Probation/Parole Division, Multnomah County, Oregon [ ] Bench Probation 11. Defendant is: [ ] Ordered to pay restitution in the amount of $ subject to the Restitution Conditions attached hereto. [ ] Sentenced to pay a fine in the amount of $ [ ] Sentenced to pay costs/attorney fees in the amount of $ [X] Sentenced to pay a Probation Fee of $ 10.00 per month beginning [X] Sentenced to pay a Victims Compensation Fee of $ 50.00 . [ ] Victims Compensation Fee is hereby waived. 12. Security on Appeal is set at $ Distribution: White - Court File ~ ~-•~.tw-;---~ DATE OF OR ER: 0 ober 19, 1989 Blue - District Attorney E' Green - Correctionk Yellow - Defense Pittorney ®CT $ 9 1989 Pink - Sheriff BUDGE Stephen L Gall her, Jr. Goldenrod - Judge t 4 k. r2 E7' BY PL Exhibit 14 'T-'4____1L - s,.,. Page la7 of .3 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH STATE OF OREGON Vs. KAMERON KEITH DELASHMUTT , Defendant. Case No. 88-10-36932 DA No. 375560 JUDGMENT ORDER (Supplemental) Page 2 of 2 RESTITUTION TO BE PAID TO ( ENTER NAMES, ADDRESSES AND TOTAL AMOUNTS): 8 8 8 S TOTAL NO. OF VICTIMS: Special Probationary Conditions: 1. Follow all standard conditions of probation. 2. As a condition of probation, defendant shall serve 24 days at Multnomah County Corrections Division, with work release. Defendant shall turn himself in on December 1, 1989 and serve until 12/24/89 3. Pay court ordered financial obligations, to Multnomah County Court. 4. Complete 100 hours of Alternative Community Service. 5. Defendant shall have diminished 4th Amendment rights. 6. Have drug treatment/evaluation. 7. Do not use, sell or frequent places where intoxicants are sold. 8. No association with drug users. 9. Submit to random urinalysis. 10. May have authorization to leave the country for business purposes. DATE: October 19, 1989 CC 249 SUPPLEMENTAL JUDGMENT ORDER Stephen L. Gal~agher/Jr. Exhibit L4 Page /a28' of 1 2 3 4 5 6 7 S 9 10 11 12 13 14 15 16 17 1$ 19 20 21 24 211 26 27 28 Joe McMillin Attorney at Law Suite 217 73710 Fred Waring Dr. Palm Desert, CA 92260 (760) 773-5886 Bar Assoc. # 128594 Attorney for: Plaintiffs D SLI Rlop, rr+a~ cniar'} RNIP oc~t 2 ZooS. w IiAl TENSTE"' SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF RIVERSIDE, INDIO BRANCH CLIFFORD R. CUMMINGS and BARBARA B. CUMMINGS, husband and wife; RICHARD ALBERS and ALEXANDRA A.LBERS, husband and wife; JIM DUFFY and NANCY DUFFY, husband and wife; and. WILLIAM PERRY and GINNY PERRY, husband and wife, Plaintiffs, CASE NO. INC 045944 THIRD AMENDED COMPLAINT FOR: Breach of. Contract vs. TRADITION GOLF CLUB; and DOES 1-20, Inclusive, Defendants. For their causes of action, Plaintiffs, CLIFFORD R. CUMMINGS and BARBARA B. CUMMINGS, husband and wife; RICHARD ALBERS and ALEXANDRA .A.LBERS, husband and wife; JIM DUFFY and NANCY -1- THIRD AMENDED COMPLAINT Exhibit Page >a.9 of ~~3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 i 16 17 18 19 21 22 23 25 26 27 28 DUFFY, husband and wife; and WILLIAM PERRY and GINNY PERRY, husband and wife, allege as follows: 1. Plaintiffs are informed and believe and thereupon allege that defendant, TRADITION GOLF CLUB, (herein, after "CLUB"), is and was at all times herein material., a California Corporation, which conducted business in the County of Riverside by the ow-nership and operation of the Tradition Golf. Club, within said County. 2. Plaintiffs are unaware of the true identities and capacities, whether individual, corporate or otherwise, of the defendants identified aD,d' sued herein as DOES 1 through 20, inclusive; and the plaintiff will ask leave to amend the Complaint to show their true names and capacities when. they have been ascertained. 3. Each of the defendants were the agents and/or employees of each of the other defendants, and in doing such things as herein alleged., were acting within the course and scope of that agency am.d/or employment. 4. That tl..e written contracts and amendments thereto upon which plaintiffs are seeking relief in this action, were entered into in Riverside County, California; and defendant, CLUB, has its official place of business and conducts its business in Riverside County, California. Accordingly, the venue for this action lies in Riverside County. -z- THIRD AMENDED COMPLAINT Exhibit Page _43 0 of ~~-3 1 5, Between January of 1998 and February of 1999, plaintiffs 2 3 applied for membership in CLUB and, as part of this procedure, exeeu.ted 4 memberships applications and agreements, which applications were 5 thereinafter approved by CLUB and executed by CLUB consisting of a 6 7 written. agreement to membersbip. A copy of said applications and. 8 agreements 'are attached, marked Exhibits "A", "B", C and D an 9 incorporated herein by reference. 10 11 6. The by-laws in articles VI and. VII provide that memberships 12 are not transferable and that the CLUB has the sole and. exclusive right to 13 14 sell. memberships, which membership shall be submitted for resale to the 15 CLUB and the CLUB shall. sell them. A copy of the by-laws is attached 16 hereto, marked Exhibit "E" and incorporated herein by reference. 17 18 7. From its inception., the CLUB by-laws and membership 19 agreement provided that golf memberships shall be limited to a rnaximum of 20 290 active personal golf memberships. Further, the by-laws provide that 21 22 resale of memberships will be done on the basis of one replacement 23 membership from. the resale list for each five original. issued mena. berships 24 that are issued and sold, by the sponsor for the club after the first 1.50 25 26 memberships have been sold. 27 28 .3. TFHRD AMENDED COMPLAINT Exhibit Page / 3/ of A_~3 1 2 3 4, 5 6 7 8 9 10 11 12 13 14 15 16 17 1E 2( 2! 2 2 2 2 2 2 r 3 1 E i F S, In reliance on the foregoing and specifically upon the obligation of CLUB to adhere to its agreement and by-laws, from February 2002 to June 2003, plaintiffs submitted their memberships for resale in con,formi.ty with CLUB by-laws and requested that the CLUB perform its under the written agreement and bylaws after having complied obligation with all of their obligations to the CLUB under the membership agreements and the by-laws. 9. At a time, that is specifically unknown 'to plaintiffs, but subsequent to 1998, the CLUB breached the contract between them it, the following particulars: a) The Club has refused to transfer and sell plaintiffs' memberships on the basis of one replacement membership from the resale list for each five original issued n.lembershi,ps that are issued and sold by the sponsor for the club after the first 150 memberships have been sold. (b) The Club has refused and failed to maintain a resale priority list as required by the by-laws of the CLUB- (c) The Club has caused resale memberships to be sold in total disregard of their priority on the resale priority list. -4- THIRD AMENDED COMPLAINT Exhibit 14 Page /32 of aZ3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (d) The Club has arbitrarily raised. the cost of tlae membership fee from $47,500 in 1998 to $1,75,000 currently in. total disregard, for the market and solely for its sponsor's financial benefit, making it impossible for plaintiffs to resell their memberships at the above price, which is far in exces~ of the market value. Further, because of the above actions of the Club and its negl.i,gent operation of the Club, there is X40 longer a market for the memberships at the current price. The Club currently resells about 2 memberships per year and there are currently approximately 53 memberships available~for resale, causing some members to not be able to ,resell. *ir memberships and continuing to be obligated to pay due for 20 to 25 years, niakin.g the memberships not marketable at any price. 10. As a direct and proximate result o' Defendant's actions, Plaintiffs have suffered damage in excess of the sum of $300,000, for additional sums for the increase in value of the amount presently unknown by Plaintiffs, and for of dues, which will. be established at the time of _5. THrRD AMENDED COMPLAINT Ps in. a total unwarranted payment according to proof. Exhibit Page -L3 3 of 1 _i WHEREFORE, plaintiffs pray judgjnent against defendant as follows: 2 (1) For damages in excess of Two Hundred Thousand Dollars 3 4 ($300,000.), according to proof; 5 (2) For a declaration that the Club's exclusive right to resell 6 memberships be held unconscionable, invalid and 7 8 unenforceable; 9 (3) For cost of suit incurred; and 10 (4) For such other and further relief as the Court may deem proper. 1X 12 ATED: D October 20, 2005 13 MCMILLIN Attorney for Plaintiffs 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - .6, THIRD AMENDED COMPLAIN' Exhibit k~ Page 134 of -a43- 12/09/2005 17:11 Patrick E. Catalano, State Bar No. 60774 LAW OFFICES IMP PATRICK E. CATALANO 781 Beach Street, Suite 333 San ft=d=o, California 94109 Telephone: (415) 788.0207 Facsimile: (415) 447-0066 Attorneys for Plaintiffs ALS PAGE 04 E SU ,'~Uf~`I~SF RIVERSIDE NO 811 LIAR 0 7 2002 F- . I-) C..> L MICKELSOiN r:> ISUPERIOB. COURT OF Tm STATE OF CAY..WORNIA FOR THE COUNTY OF RM1lrR1ODA 114DI D BRANCH CHARLES F. WBHRLY; NANCY WEHRLy., CHARLES WBHRLY TRUST; STEPHEN M. BACHMM; BARRY K. WILLIAMS; THE BARKAY WILLIAMS FAMILY TRUST; ROBERT J. MCDONALD; HIL.DA T. MCDONALD; 'V ailAM mrA=RMAN; DORIS HBCXERMAN; GBOItGR I. MIDDLETON; and MICFL4EL 07BRMN, Plaintiffs, V. THE TRADITION CLUB ASSOCIATES, LLC, a non-profit mutual beftfit C9. araticm; DAVID in his intvidusl and cnrporsw capacity; TRADITION GOLF CLUB; CHAPMAN GOLF CLUB DrvrELoPMENT, LLC; TRADITION HOMEOWNERS ASSOCIATION; DONNE F. FISHER, an in. 11i.s individ d ad corporate capaaitY; GARY MATTOX, ait individual and in his •catporato cc.acity ; FISHER CAPITAL CCRPpRATION, a Colorado corporation; LYNCH MATTOX, LLC, a Delaware corpontim; JULIF A. REISINGER,. iu her individual and corporate capacity; and DOES 1 through 20, inclusive, Dcfendants- CASE NO. INC 020407 Honorable C.J. Sheldon Deparmwnt 2H FOURTH AMENDED COMPLAINT PURSUANT TO COURT ORDER FOR DAMAGES FOR: (1) FRAUD-,. BREACH OF CONTRACT; (3~ BREACH OF FIDUCIARY DUTY; 4) RESTRAINT OF TRADE; ~5) TNTEIMONAL IN-1 FMNCE WITH CONTRACTUAL ECONOMIC ADVANTAGE; (6) NW WT' pRo PECTIVE BUSINESS ADVANTAGE; AND (1) wR4TEN ad PRO PEPS ~ DMSS ADVANTAGE Fj5UjF[5 A,MMC= COAIPLAan FOOL M A60) ye!7&*VhFb04-*ff&W-C= Exhibit f~ Page -L 3,S of 0a,~ 12/09/2005 17:11 1 ALS PAGE 05 1. 91N1 R" dY.Y 1iA'JATIQNS Pl9intiffe CHARLES F. WEHRLY, NANCY WEHRLY, CHARLES VAWRLY TRUST, STEPHEN M. BACHMAN, BARRY K. WILLIAMS, THE RARKAY WILLIAM FAMILY TRUST, ROBERT J. MCDONALD, HI DA T. IMiCDONALD, WILLIAM HECKMWM, DORIS HECKERMAN, OEORGE I. MIDDLETON and MICHAEL O'HR N, allage as follows: 1. Plaiatitfs CHARLES F. VAUMY and NANCY WE]IRLY, and CHARLES WEHRLY TRUST (hereinafter "WEHRLY") at all relevant times ha do were ovineta of property, Lot 33, is the Tradition Country Club, located in La Quints, California. 2. Plaintiff STEPHEN M. RACHMAN (hereinafter "BACHMAN") was at ati relevant 111 times herein owner of property, Lot 49, in tho Tradition Country Club, located in La Quints, Ca. 13 3. Plaintiifa BARRY K. WILLIAM *ad THE BABKAY WILLIAMS FAMILY TRUST 1 (hmvinaflar "WILLIAMS") at all roW at times h6tia were trustees and owners of property. Lot 47, 15 in the Tradition Country Club. located in La Quinta, California. 101 4. Plaintiff ROBERT J. MCDONALD and HILDA T. MCDONALD {>xreaasfter 17 "MCDONALD") were at all relevant titres heroin owners of property, Lot 32, in the Tradition 1 Country Club, located in La Quinta, California. 1 5. Plaintiffs WILLIAM HSCKBRMAN and HILDA RECKE.RMAN (hereinafter 2 "HPCX.ERMAY) were at 911 Televaut tiM06 herein owners of property, Lot 40, in the Tradition 21 Country Club, locatal in La Quiate, Califos'Aia. 22 6, Plaintiff GEORGE 1. MIDDLETON (bac afw "MIDDLETON") was at all relevant 23 nines herrrinn owax of propel y, Lot 33, it the Tradition Country Club, located in La Quinta, 24 CaMria. 715 7. Plaintiff bUCHAEL O'BRMN (hereinafter 1101BRE10') was at all relevant times 26 herein owner of property, Lot 37, in the Tradition Country Club. located in Le Quinta, California. 2 111 }o7N h,1~M4~,i~oF~ MUM AWX= COM[9.AIN'C' FM PAUp 2 . , „ . . Inc' : i,~ Exhibit f Page /3 (0 of 24- 12/09/2005 17:11 1 ALS PAGE 06 defendant THE TRADITION CLUE, ASSOCIATES, LLC (hwvhut cr "THE 21 TRADITION") was at all relevant times a noon-profit mutual benef: corporation incorporated under 3 the laws of the Stara of California, and at all relevant times owned arnd cottm Iled the development. 9. Defendant DAVID CHAPMAN (hereinafter ''CHAAMAX,) was at all relevant times a licensed California Real Estate Broker, CEO, and President of the TRADITION GOLF CLUB, and owner of CHAPMAN GOLF CLUB DEVELOPMENT, LLC, and President of the TRADITION HOMEOVMRS ASSOCIATION BOARD. CHAPMAN at all relevant times had/bas a financial inherent in Defendant FISHER CAPITAL CORPORATION, sad Defendant LYNCH MATTOX, LLC. 1 10. Defendant GARY MATTOX (hereinafter "MATTOX") was at all relevant times am I1 individual and business aasociate of the other Defendants, and a participant in the sobeme of 12 purchasing properties fmm original business owners by aiding and/or funding purchases, sales and 13 transfers of Plaintiffs' properties at THE TRADITION, for under market value, and i&*w part 1 owner of THE TRADITION and a principal of Dafeondnat LYNCH MATTOX, who as 1mow1, by 15 all Defendants, but undisclosed to Plaintiffs, would purchase properties at THE TRADITION for 1 under market value through CHAPMAN and participated in *ge profits when the lots ware resold, 1 within daA weeder, or months thoreafteu, to waiting and known buyers. 1811 11. Defendant DONNE FISHER (hereinafter "FISHER") was at all relevant times an individual and business associate of the other Defendants, as well as CEO and Vice President of FISHER CAPITAL CORPORATION, and a pstrticipant in the scheme of purchasing and aiclirtg and funding purchases of Plaintiffs' properties at THE TRADITION, for WAcr market value, and reselling them shortly the ceaiter, and islwas part owner of THE TRADITION and of CHAPMAN GOLF CLUB DEVELOPMENT, LLC, and participated in the profits upon resale of the properties attar purchase below market value and sate at market value for loge profits days, weeks or mowhs after purchase.. 12. Defendant FISHER CAPITAL CORPORATION (hereinster "FISHER. CAPITAL") 2711 was at all relevant times a Colon1do empwation, doing business in the State of California, with its na7dwrMl Iw~eadmra RMTH AIN~C04PI- IWT FM "LAUD 3 Exhibit ~ Page L3T of a a3 12/09/2005 17:11 1 ALS PAGE 07 -hGw laid idwas part m1e. ~f THE prive, ille, C.'atifaax~ia. offices located at. 2390 POsevitlt Rosev at the TRADITION, ici ant in the sales, pm0 e6 and trausies o: W.;,,* TRAD11nON, sad a PartP do 6.01 Pcny at TgApiTiON from Plaintiffs at t6tovv Make veluc by & and has purchased Proofita shared shortly thereafter at )UP Pr bacia alleged and resold Ibe sxm PToPpny S Ddmdanta. TTOX") was $i all 13. Da bndattt LYNCH UATTOX, LLC 06"eiaaftcr "LYNCH MA and a ~ap4n' o ration, doing bttttineas in the Stan of Cale relevam times a Delaware m'Po TRADITION for under market value, acid has p"'r S in the purchases of pmp"l' THE alleged value by the &ILA 1 property at THE TRADITION from PltcintiffA as bolaw maa~cat MATTOX then t rolmh CHAPMAN, tnisrcpt~t2 to Plaintiffs the faw Mukot value and L'Y'NCH i bgyUS shortly tbereafter► in days. 11 resold the carne propeM at lame profits to known and W&M4 1 aroeks or months, which Profits were "ad by all pcfeodsnts* sold THE TRADITION Tbc dcvcloperof THE TRADITION wag Sly CmP•+ Who •~VpI,OpMTNC, LLC ad 13 14. QOip CLUB s of THE TRADMON CLUB AS$0CLkTBS, LLC. 1 to CHAPMAN end DONNE MSIM and CliAPMAN 15 FISHER CAPITAL, vvlw were o LLC then acquired the aesMs of TRADITION CLUB I CHAP'MAN GOLF CLUB ')RV LOPMENT, GOLF ASSOCIATES, I,L,C. CHAPMAN and DONNE FISHER har►e owncrdh p in CHAph" 1 1 CLUB DEVELOPMENT, LLC• eiaaRar 'SSrSiNaBR") was at all relavaU' 1 15, pcfeadant J=F, A. PMSINGER ( LTD- and VicwPt'esid+mt of LYNCH- 2 timac Vice Presidant of FISHER CAPITAL PARTNBF.S, in the scheme of siditlg p~ An' 21 MATTOX, and holds an interest in ca►cb. and a parlie*e Iiuidirtg pnu~laames, sales and transfers of pMeny of plaintiM at THE TRADITION by CHAPMA) 23 an behalf of Defmdm% Misrepregman8 tdo fair m,*Ct vatlue to PlaizfiM, which were sold to on 24 of the othea Defand mu. includ* LYN'CH' MATTOX and then wtdit days, weeb Or =aft tool 25 by LYNCH MATTOX to kwwn, wsitiog buyers at fair market value and at large p xd% an 2 i.EISINGER profited on resales of Plaintiffs' PwPgrfim d pra76*4d #F0WO•a-w PDZl M AMWW OOWLAM OW RArltt 4 Exhibit Page /3L of Qa~ 12/09/2005 17:11 1 ALS PAGE 08 16. Plaintiffs are igryo=t of the true names 8nd eapaaities of Defendants Wed Lemhk es MES 1 through 20, inclusive, and thamfom sae these Daf'endaints by ash fictitious Dotes. Plaintiffs will amend their Complaint to allogt their true names and capacities when ascertaitsed. 17. Plaintiffs are informed ad believe, sad thereon allege, that each of said fictitiously rimed Defendants is reaponsiblo in some nnanner for the occrurences herein alleged, and that PWntifl2' thaY rePresartt were proximmely caused by said fictitiously named Dafendttnts, as herein alleged. S 1S. Plaintiff's are informed and believe, and thereon Allege, that all times mentioned herein, each of the Defendants sued herein as DOES 1 through 20, inclusive, was individuals, businm 1 entities and/or organizations, and who wero the agents, servants, surd employees of each of the 11 remaining Defandants and were at all times acting within the purpose sad scope of such agency and 1 employment. 13 19. Plaintiffs allegle that each of the fictitiously named Dcfrtudauc, whether individual, 1 agent, corporation, essodWon or otherwise, Is in soma way liable or newnaible to P1140 M and 1 caused 94unes and damages prOmistely thoraby as hereinafter alleged and that at such time as 1 Defendants true names bocome lmown to Plaintiffs, Plaintiffs will seek leave of this Court to amend l this C mplaint to insert their tn,e names and capaueities. 1 20, The mused PlainnWs wen origimtl owners who sold their lots tluough CHAPmAN 1 and his Agents a their brokers„ as more specifically defined in paragraph 24, CHAPMAN entared 2 into a conspiracy with the other Defeadannts, and each of tbem, to falsify the fair msaW value of 21 PlWntiffi' 1016 to Plaintiff and thereby purchase them from Plaintiffs at below market value and ihereaflar to Sell them to one of the DOW Defendants who shortly thereafter, within days, seems or 23 months rosold the aame property at fair market value at large: profits to known individuals waiting 2 to buy, but which was undisclosed to Plaintiffs, all to Plaintiffs' detrimenat and to the profit of sll 25 Defeadob. 2 21. Wendant CRAPMAN on behalf of all Defendants made the id=Wcal 2 mia Vresentation to each of the named plaintiffs, whicb was tW if CHAPMAN would be broker s Exhibit Page -Lil of .202 12/09/2005 17:11 1 ALS PAGE 09 71 -ACE 1; to :sell the property, he would obtain the best fair roarket ~ ale, for zacdt property, In reliance an the , I same mitorepresstiop which was made to each Plaintif3f, Plaintiffs sold the property t>>toutgh 3 MAPMAN and, imkn n to Plainitif'fa, obtained less than fair market value on the sale of their property. The sa= propettics, pu mb ased by LYNCH MATTOX, FISHER CAPITAL or ether Defendants, were then resold days, weeb, or months thereafter at large profits shared by all Defendants. It was not discloeed to Plaintif that Defendants had an amoaiation with CHAPMAN aad bad purchased other paopcrdes at the TRADITION from other original owners. As a result, Plaintiffs suffered a common wrong and were deprived of obtaining the fair market value out the sale I of their property. ] 22. Sash neared Defendant provided f n is to CHAPMAN which, in combination with his 11own feuds, were used to purehase the property at below fair market valets in the name of one of the 1 Defendants other than CHAPMAN. III U. ] FIST CAUSIE QE &V_nON 15 (FRAIM AC&N;tT All. D &MOAN32 EXCEPT 1 23. Pla atifh rehoorpograte and reallage parag s* I through 22 as if fally eat fibttlr- 1 24. Defendants THE TRADITION, TRADITION COIF CLUB, CHAPMAN, CHAPMAN ] (30LF CLUB DEVELOPMENT, LLC, FISHER, MATTOX, FISHER CAPITAL, LYNCH 2 MATTOX and REISINGER, through CHAP'NIAN, individually, and in his corporate capacity, e9 a 21 real oatnte broker and in the other oapaddes alleged W paragraph 9 of dolt Third Amended 2 Complaint, on numerous occasions as more specifically net forth below, prior to listing Plaintifft' 23 propcM, and at the time of sales, mi srep ted the flair market value of Plei:ntiifW property to 24 Plaintiffs when IW wanted to sell their property in THE TUITION in La Quints, California 25 CHAPMAN. on behalf of all Defendants. miarepresanted to PIaintilfa that it he was broker fir the 2 sale of the property, he would obtain the bat fair market value for Plaintiffs, property. That 2 Wentiical representation was made to each Plaintiff. Plaintiffs justifiably relied on this repreuntation, p,p7i~1TW; ,=r_AW rouMr ~COMWlAW !Mt 17AUD b Exhibit 4 Page / 4 6 of 12/09/2005 17:11 1 ALS PAGE 10 ^AGF 14/3 li 1 • and the property waa u31d by Plaintiffs, through CHAPMAN acting as broker, to named Deficndanas, 2 including LYNCH MATTOX, FISHER C.APZT,AI,, in almost a double escrow situation wbareby 3 Defendants THE TRADITION, TRADITION GOLF CLUB, C14APMAN, FISKIt, MATTQX, CHAPMAN GOLF CLUB DEVELOPMENT, LLC, FISHER CAPITAL, LYNCH MAATTOX and 5 REISINGER, participatd in a saherne and made hundreds of thousands of dollars as the property b was purchased in the name of LYNCH MATTOX. or FISHER CAPITAL, or other named Defendants. The money for purchases and other asaaistance was provided by Defendants CHAPMAN. THE TRADITION, CHAPMAN GOLF CLUB DEVELOPMENT, LLC, TRADITION GOLF CLUB, FISHER, MA,TTOX and REISINGER, and they all participated in the scheme and 1 shared in the profits. Undisclosed to Flaintifb, the property was purebased for below market value 11 and then resold, for fair market value, at hundreds of thousands of dollars more than that paid to 12 Plaintiffs, within a very short time frame after purchase, to waiting purchasers, not named Defendants. 14 25. Defendants THE TRADITION, TRADITION GOLF CLUB. CfLo& N, CHAPMAN 15 GOLF CLUB DEVELOPMENT, LLC, FISHER, MATTOX, FISHER CAPITAL, LYNCH 1 MATTOX and REISINQEft, were participants in a scheme whereby they would control all sales and 17 purchases of THE TRADITION property and whereby CHAPMAN, on babalf of all Defendants, 1 would inteationally mi8mprment to Plaintiffs the fair market value of the property mW wou14 sell 1 the property at less than fair market value to one of the named Defendants, Including Defendants 2 FISHER CAPITAL aad/or LYNCH MATTOX, in which each of the Defendants bad an interest and ZI then shortly thereafter Defendants THE TRADITION, TRADITION GOLF CLUIA, CROMAN, 22 CI APMAN GOLF CLUB DEVELOPMENT, LLC, FISHER, MATTOX, FISHER CAPiTA.L, Z3 LYNCH MATTOX and REISINGER, would, through CIWKW, reseD the same property to a waiting known third party purchaser not a named Defendant, and do so within days, weeks or t5 months after purchase from Plaind9b at the fair market value, realizing large profits, to the detriment !6 of Plaintiffs. "MTB Am== coblPI.on FOR MW 7 . ......__.~.r..,_..~...w. Exhibit Page 14 1 of 12/09/2005 17:11 1 ALS PAGE 11 1~t 26. Defendant R.EISINOBR, vice President of FISHER e.'APITAL and Vice .Prcaident of LYNCH ,MATTOX, participated in the schernc by signing documents, and providing money with CHAPMAN to purcbase die property firotn Plaintiffs. Defendant MATTOX, principal In LYNCH MATTOX, as principal of LYNCH MATTOx and as an individual. provided fonds to LYNCH MATTOX and FISHER CAPITAL to purchase Plaintiffs' homes. Both RAISINOM and MATTOX aged intentionally and with knowledge that Plaintiffs' homes were being puawhamd for amounts under ftir market valtm, which was not known to Plaintiffs, and thin was done inteendmWy by them with knowledge the panperdes would be resold to waiting third' parties not named Defendants, within A Abort time at fWr market value and a large profit, to be shared by all Defendants, 1 27. Dofeodeat CtiA AIAN, acting on behalf of himself and all other named Defendants, 11 did tsot disclose the true facts to PlaintifTs, including his relationship with the other Defendanba, nor 1 that LYNCH. MATTOX and/or >:ISI'•IPIt CAPITAL had purchased other properties at THE f3 TRADITION. nor that the other properties purchased by Defendants LYNCH MATTOX and/or 1 FISHER CAPITAL were then resold days, weeks, or months later to third party pur lumebts at a huge 1 profit, and further intentionally misrepresented to Plaintiffs the fAiir market value of the property. 1 28. CHAPMAN made the following minepramtatimm at many times prior to the sale of 1 the property to the WEHRLYS and all other PlOntifri: (a) that be would represent them faitht My 1 aW bring the best price fbr Char property that he could possibly obtain, which was the flair market 1 value of the propert ; (b) that he wos representing their interests and selling to a third party buyer 2 wb* was going to utilize the property for their own use and live an the property; (c) that he wan not 21 connected in any way to the purchaser of the property, FISHER CAPITAL, and that FISHER CAPITAL represented the true owners who watt a couple that was going to buy the property to live 23 Ion it. 29. FISIMIt CAPITAL made the fallowing ndarepramtation9 at many times prior bo the sale of the property to WEH.RLYS and all othex Plaintiffs: (a) that dwy w= the actual ptlrchawers sad users of the property and were go'w,g to buy the ptnpenty not for resale, but to live on the proPeny; (b) that they were paying fair t>?arlret v9due fbr the property; (c) ftt they were unrelated 0 +~YN+.~wn FOURTH AMMOD a0MRAW FOR PRAtm 8 Exhibit Page M 2 of 12/09/2005 17:11 1 ALS PAGE 12 1 to CH,,APMAN; (d) that they were umlated to the TRADITION ox- arty other entity prior to dc time 2'they purchased the lot, or any other entity associated with the TRADITION before they purchased 311 the lot. 30. LYNCH MATTOX and MATTOX ma& the following misrepresentations at many times prior, to the sale of the property to the WEHRLYS and all other Plaintiffs: (a) that they were going to utilize the property for tlmwelves; (b) that they were unrelawl to CHAPMAN wben CHAP'MAN was going to sell the property after LYNCH MATTOX purchased it and share in the profits therein; (o) than LYNCH MATTOX was really an alter-ego for a couple who were going to reside on the property. (d) that the hansaction was sold for the highest market that could be obWned I q I for the property at the time of the sale. 11 31. REISINGER made the following misrapreseptations at many times prior to the sale 1 of the property to the WEHALYS and all otber Plaintiffs: (a) that they were the actual pumbasers 13 and users of the property and were going to buy the property not for rule, brat to live on the l property. (b) that they were paying fair market value for the properly; (c) that they were unrelated 15 to CHAPMAN; (d) that they were unrelated to the TRADMON or any other entity prior to the time 16 they purchased the lor, or any other entity associated with the TRADITION before they purchased 11 1711 the lot. 18 32. Plaintft WEHRLYS, justifiably relying on the rgmsentations made many titnes prior 1 to the sale of the property of CEiAPMAN and the other Defendants, sold their property on or about 2 March 29, 1999 through CHAPM.AN to Defendant 'FISHER CAPITAL. CHAPMAN intentionally 2111 represented to WEHRLYS prior to and at the time of sale that he would obtain the beat fair market value and the sale price of the property was the fair market value of the property. CHAPMAN did not disclose the true market value to Plaintiffs, nor that he had an interest in FISHBR CAPITAL. nor that Defendants were purchasers of other properties at THE TRADITION, not that the sale price was below market value FISHER-CAPITAL, on or about May 1999, resold the WfiHRLYS' property to a third pasty for approximately $250,000 over the price paid to the WE'HRLYS- /I/ prm16/woht(yXzm_td.ow FOURTR AMM= COMPL4MT FOR FRAUD 9 T Exhibit 74 Page Lq 3 of ~a'> 12/09/2005 17:11 1 ALS PAGE 13 1~ 33. CHAPMA1 made the following misrepresentations at many limos-prior to the sale of 2 the property to BACIi:`+I.AN and the other Plaintiffs prior to selling his lot to LYNCH MATTOX: 3 (a) that CH "MAN would represent him faithfully and represent him as a seller and not represent any other entity with respect to this agreement to make a secret profit; (b) that CHAPMAN would 5 obtain the highest price available for the property; (c) that CHAPMAN was not related to the purchaser of the property; (d) that the purchaser of the property was going to utilize the property for 7 their own use; (e) that LYNCH MATTOX was the alter ego of a couple who bought the property 8 in the name of LYNCH MATTOX and who were. going to reside on the property; (f) that LYNCH MATTOX was totally unrelated to CHAPMAN. 1 34. THE TRADITION GOLF CLUB made the following misrepreseontatiom at many times l 1 prior to the sale of the property to BACHMAN and the other Plaintiffs: (a) that they were the actual 1 purchasm and users of the property aid were going to buy the property not for resale, but to live 13 on the property; (b) that they were paying fair market value for the property; (c) that they were 14 unrelated to CHAPMAN; (d) that Owy were unrelated to the TRADITION or any other entity prior 15 to the time they purchased the lot, or any other entity associated with the TRADITION before they 16 purchased the lot. 17 35. CHAPMAN GOLF CLUB DEVELOPMENT made the following miwcpt0s4ntaiions 18 at many times prior to the sale of the property to BACHMAN and the other Plaintiffs, (a) that they 19 were going to utilize the property for themselves; (b) that they were unrelated to CHAPMAN when 2 CHAPMAN was going to sell the property alter LYNCH MATTOX purchased it and share in the. 21 profits therein; (c) that LYNCH MATTOX was really an alter-ego for a couple who wcre going to 22 reside on the property; (4) that the transaction was sold for the highest market that could be obtained 23 for the property at the time of the sale. 36. Plaintiff HACKMAN, justifiably relying on the representations made many times prior to the sale of the property of CHAPMAN and the other Defendants, sold his property through CHAPMAN to Defcndaut LYNC14 MATTOX on or about May 31, 2004. Defendant CHAPMAN represented to BACHMAN prior to and at time of sale that he would obtain the bout fair market 10 Exhibit Page / of a-;3 it/c»/GGG~ 1/:11 1 ALS PAGE 14 1!{ value and the scale: price of the property was the fall, market ~alue+ of the property i)efcondan 2`; CHAPMAN did not disclose to plaintiff the true market value, nor the comertt ' on with LYNCp] 3 MATTOX, nor the fact that Defendants had purchased outer properties at THE TRADITION, not that the sale Price was below market value. On or about July 18. 2000, Defendant LYNCH 5 MATTOX resold the BACHMAN property to a third party for approximately $210.000 over the price paid to HACHMAN. 7 37. CHAPMAN made the following misrepresentations at many times prior to the sale of 8 the property to the HECK£RMpN'S and the other plaintiffs prior to selling their lot to LYNCH MATTOX: (a) that CH,A,PMAN would represent. therm faithfully and represent them as a seller and 1 not represent any other entity with respect to this agreement to make a saaret profit; (b) that 11 WMAN would obtain the highest price available for the property; (c) that CHAPMAN was not 1 related to the purchaser of the property; (d) that the purchaser of the proputy was going to utilize 13 the property for choir own use; (e) that LYNCH MATTOX was the alter ego of a couple who bougbt 1 the property in the name of LYNCH MATTOX and who were going to reside on the property; (f) 15 that LYNCH MArrOX was totally u mlatad to CHAPMAN, 1 38. FISHER CAPITAL made the following taaisrepresantations at many times prior to the 1 sale of the property to the HECIERMANS and the other Plaintif; (a) that they were the actual 18 purchasers and users of the property and were going to buy the property not for resale;, but to live 1 on, the property; (b) that they were paying fair market value for the property. (c) that they were 2 unrelated to CHA,PMAN, (d) that they were unrelated to the TRADITION or any other entity prior 21 to the time they purchased the lot, or any other entity assooiated with the TRADITION bcfare they 22 purchased the lot. 39. LYNCH MATTOX and MATTOX made the following misrepresentatiom at many times p for to the sale of the property to the HECKERMANS and the other Plaintiffs: (a) that they were going to utilize the property for th=selvea; (b) that they were unrelated to CHAPMAN when, CHAPMAN was going to sell the property after LYNCH MATTOX purchased it and share in the profits therein; (c) that LYNCH MATTOX was roally an alter-ego for a couple who were going to a~«nMw,ann roemrH n>~vusD ~r~n+rr rax rR.~em 1) Exhibit Page 145 of -'XQ3 12/09/2005 17:11 1 ALS PAGE 15 II reside on the property, (di that the trswwa on was sold tbt the, ,yghest ;mcket that could be obtained for 1110 property at the tin of the sale, 40, REISINGER MO& the followif miuvremuutions at many times prior co the sale of the property to the HECKRRMANS anti the other plaintiffs- (a) that they wean the actual Par' h=m and asem of the property and were going to buy the property sot for resale, but to live on the property; (b) that they were paying fair market value for the properly; (c) that they were uuralatod to CHAPMAN; (d) *at they were unrelated to the TRADITION or arty other entity prior to the time they purchased the lot, or any other entity associated with the TRADI" oN before they purchased the lot. 1 41. Pla ntifft HECKE M"s, jwdru bly relying on the r9preaem4ons made many tines 11 prior to the We of the pmpwty of aWMAN and the odw Defemdauta, sold their property 0"Mgh 1 C "MAN to Deftdant FISHER CAPITAL on or About December I M, Far approximately 13 $195,000. Defendant CHAPMAN represented to HEC ERMANS prior to and at the timer of sale 14 that he would obtain the beet fair market value and that the sale price of the property was the fair 15 market value of the property. DefewUnt C'HAPMAN did not disclose to Plaintifn the erns msrw 1 value, nor that FISHER CAPITAL was a part owner of THE TRADITION, or that CHAPMAN had 1? an interest in FISHER CAPITAL., not the ha that Defendants, in huhng FISHER CAPITAL, had 18 purchased other properties at THE TRADITION, reselling them at a substmrtial profit shotdy after 19 purchase, nor that the sale price was below marlin valub, On.or about March 2000, Defaoodaat Z FISHER CAPITAL resold the HECXBRMAN Lot 40 feu approximately S?75,000.00, approximately 21 &280,000.00 over the price paid to RECKERMA.NS only seventy-five days after purchase. 42. CHAPMAN made the following misrepreaeattWons at many times prior m the We of the property to the WILLIAMSES and the other Plsintiffa prior to selling their lot to LYNCH MATTOX. (a) that CHAPMAN would mWemat than faithfully and rcprosont them as a seller and not rVromt any other entity with respect to this agreement to sake a sachet profit; (b) that CHAPMAN would obtain the bigheat price available for the property; (c) that CHAPMAN was not related to the purchaser of the property; (d) that 1110 purchaser of the pavrparty was go* to utilize 12 Exhibit 7LJL _ Page 14(p of D.a 3 12/09/2005 17:11 1 ALS PAGE 16 PACE 24/33 the property for their own use; (e) that LYNCH MATTOX ivio The a.lmr ego of a couple who bought the property in the name of LYNCH MATTOX and who were going to rc9da on the property; (f) that LYNCH 'MATTOX was totally unrelated to CHAPMAN. 43. FISHER CAPITAL made the following misrepresentations at many titres prior to the sale of the property to the WILLIA.MSES and the outer Plaintiffs! (a) that thay were the actual purchasers and users of the property and were going to buy the property not for resale, but to live on the property; (b) that they were paying fair market value for the property; (c) that thoy were utarelated to CHAPMAN; (d) that they were unrelated to the TRADITION or any other mitity prior to the time they purchased the lot, or any other entity associated with the TRADITION before th3y 1 purchased the lot. 11 44. -LYNCH MATTOX and MATTOX made the following mierepreaentations at many 1 tames prior to the sate of the property to the WILLLANMES and t'he other Plaintiff: (a) that they 13 were going to utilize the property for themselves; (b) that they were unrelated to CH A►P'MAN wbea 1 CHAPMAN was going to sell the property after LYNCH MATTOX purchased it W share in the 15 profits thorein; (c) that LYNCH MATTOX was re4y an altar-ego for a couple who were going to 1 reside on the property; (d) that the transaction was sold for the highest warket that could be obtained 17 for the property at the time of the sale. 18 45. RMSINGER made the following misrepresentations at many times prior to the sale 1 of the property to the WILLIAMSES and the other Plaintiffs: (a) that they wrre the actual purchra6era and users of the proptaly and were going to buy the property not for resale, but to live 21 on the propaty; (b) that they were paying fair market value for the property; (c) that they west 22 unrelated to CH.APMAN; (d) that they were unrelated to the TRADITION or any other a%tity prior to the time *ay purchased the tot, or any other enthy associated with the TRADITION before they purchased the lot. 46. Plaintiffs WILLIAMS. justifiably relying on the representations made many times prior to the sale of the property of CHAPMAN and the other Defendants, sold their property through. CHAPMAN to Defendant LYNCH MATTOX cc or about June 9, 2000. Defendant CHAPMAN pea76Arehr~/4rnae0 oom MURni AMENDED C` VLAV4r TOR, FRAUD 13 - • - - Exhibit Page of ~~3 12/09/2005 17:11 1 ALS PAGE 17 I reprownted to WILLIAMS prior to and at time of s-fle That he w-juld obtain the beet rair market 2 value and the salt price of the property was the fair market valuo of the property. Defendant 3 CHAPMAN did not disclose to PlsinOfl's the true market value, nor the connection with LYNCH MATTOX, nor the fact that Defendants had purchased other properties at THE TRADITION, nor i that the sale price was below market value. On or about Suly 16, 2000, Defendant LYNCH MATTOX resold the WILLIAMS property to a third party for approximately $290,000 over the price paid to WILLIAMS. 47. CHAPMAN made the following misrepresentations at many times prior to the Salo of the Property to the MCDONALDS and the, other Plaintiffs prior to selling their lot to LYNCH 1 MATTOX (a) that CbiAPMAN would represent them faiddlIlly and represent them as a seller and 11 not represent any other entity with respect to this agreement to melee a secret profit; (b) that 1211 CHAPMAN would obtain the highest price available for the property; (c) that CHAPMAN was not 13 related to the purchaser of the property; (d) that the purchaser of the property was going to utilize 14 the propaty for their own use; (e) that LYNCH MATTOX was the alter ego of a couple who bought 15 the property in the name of LYNCH MATTOX and who were going to reside on the property; (f) 1611 that LYNCH MATTOX was totally unrelated to CHAPMM. 1711 48. 17ISMR CAPITAL trade the following misrepresentadons at many times prior to the 18 We of the property to the MCDONALDS and the other Defendants: (a) that they were the actual i purchasers and users of the property and were going to buy the property not for resale, but to live 2 on the property; (b) that they were paying fair market value for the property; (c) that they were 21 unrelated to CHAPMAN; (d) that they were unrelated to the TRADITION or may other entity prior 22 to the time they purchased the lot, or any other entity associated with the TRADITION before they purchased the lot. 49. LYNCH MATTOX and MATTOX made the following misrep,resemations at many times prior To the sale of the property to the MCDONALDS and the other Plaintiffs: (a) that they were going to utilize the property for themselves; (6) that they were iz=lawd to CHAPMAN when CH.APMAN was going to sell the property after LYNCH MATTOX purchased it and share in tho pae96hvehrfyA4atoegd oas POVa.TN A3MUM COMPLAINT FOR "AVD 14 Exhibit Page /4g- of gal 12/09/2005 17:11 1 ALS PAGE 18 ?l~45 22/x? 1 profits ttw-mn; (c) that LYNCH MAT l'OX was really an after-cgo for a couple who were going to 2 reside on the property; (d) that the transaction was sold for the highest market that could be obtained ~ for the property at the tirar of the gale. 50. RETSINGER trade the following misrepresentations at many times prior to tht sale of the property to the MCDONALDS and the outer Plaintiffs: (a) that they were the actual purchasers and users of the property and were going to buy the property not for raeale, but to live on the property; (b) that they were paying fair market value for the property; (c) that they wvro unrelated to CHAPMAN; (d) that they were unrelated to the TRADMON or any other entity prior to the time they purdmed the lot, or any other entity associated with the TRADITION before they 101 purobased the lot. 1111 51, Plaintiff MCDONALDS, justifiably relying on the representations made marry times prior to the sale of the property of CWMAN and the other Defetnts, sold their property through CHAPMAN to Defendant LYNCH MATTOX on or about August 24, 2000. Defendant CHAPMAN represented to MCDONALDS prior to and at time of We, that he would obtain the bast fair market 1511 value and the sale price of the prOP01y was the fair market value of the property. Defendant CHA.PMAN did not disclose to Plaintiffs the true market value, nor the connection with LYNCH III MATTOX, nor the fact that LYNCH MATTOX was the purchaser of numerous other properties in I Q the tract, nor that the ;sale price was below market value. Ejy_e tom, thereafter, Defendant LYNCH MATTOX resold the MCDONALDS property to a third party for aapproximatoly $217,000 over the 2 price p$id to the MCDONALDS. 21 52. CHAPMAN made the following misrapresentations at mmy tunes prior to the sale of the property to the MIDDLETONS and the other Plaintiffs prior to selling their lot w LYNCH MATI'OX: (a) that CHAPMAN worxld represent them faithfully and reprownt them as a seller and trot represent any other entity with respect to this agreement to make a secret profit; (b) that CHAPMAN would obtain the highest price available for the property; (c) that CH PMAN was not related to the purchaser of the property; (d) that tftc purchaser of the property wes going to utilize 2AJ the property for their own use; (e) that LYNCH MA.TTOX was the alter ego of a couple who bought paa~nrduyaa~,mio am FOMM AMCi qM COMPLAINT N0A "AUD 15 . Exhibit -f { Page of 12/09/2005 17:11 1 ALS PAGE 19 23/32 I the property in the rwne of LYNCH M.ATTOX and xho were gt)irig, to reside on the property; that LYNCH MATTOX 'was totally unrelated to CHAPMAX. 31 53. FISHER CAPITAL made the following miarepreseatations at many times prior to the sale of the property to the MWDLETONS and the other Plaintiffs: (a) that they were the actual purchasers and users of the property and were going to buy the property not for resale, but to live on the property; (b) that they were paying fair market value fiat the property; (c) that they were unrelated to CHAPMAN; (d) that they were unrelated to the TRADITION or any other entity prior to the time they pumbased dw lot, or any other entity associated with the TRADITION before they prrehased the lot. 1 54. LYNCH MATTOX and MATTOX made the following misreprreserttations at many l 1 times prior to the sale of the property to the MIDDLETONS and the other Plaintif: (a) that they 12 were going to utilize the property ;far themselves; (b) that that' were unealated to CHAPMAN when 13 CHAPMAN was going to sell the property after LYNCH MATTOX purchased it and share in the 1 profits therein; (c) that LYNCH MATTOX was really an alter-ego for a couple who were going to 15 reside an the property; (d) that the transaction was sold for the highest nmiloat that could be obtained 1 for the property at the time of the sale. 17 55. REISINGER trade the following misrepresentatons at many times prior to the sale 18 of tlw property to the MIDDLETONS acid the other Plaintiffs- (a) that they were the actual 19 purchasers and newts of the property and were going to buy the property not for resale, but to live 20 on the property; (b) that they were paying fair market value for the paoperty; (c) that they were 21 unrelated to CHAPbfAN; (d) that they were tantl$ted to the TRADITION or any other entity prior 2 to the time they purchased the lot, or any other m ity associated with the TRADITYON before they purchased the lot. 56. plaintiff MIDDLETON, justifiably relying on the representations made many times prior to the sale of the property of CHAPMAN and the other Defendant sold his property through CHAPMAN to Defendant PYSHER CAPITAL. an or about August 6, 1999. Defendant CHAPMAN represented to MIDDLETON prior to and at time of sale that he would obtain the best fair market p00"~^"" "~•"~d FOURTH AmEnE4 comrmiw wR P &vD 16 Exhibit z4 Page 1:56 of aa3 12/09/2005 17:11 1 ALS PAGE 20 value and the sale price of the ptaperty was the IWT market v mue of the property. Neither CHAPMAN nor FTSHER CAPITAL disolosod to Plaintiff MIDDL,E'I'ON their connection, or the fact that CHAPMAN had an interest in FISHER CAPITAL, nor the true market value of the property. On, or about November 1999, Defendant FISHER CAPITAL. resold the MIDDLETON property to a third party for approximately 597,000 over the price paid to MWDLETON. 57. CHAPMAN made the following misrepresentations at many times prior to the sale of 7 the property to O'BRIEN and the other Plaintiffs prior to selling his lot to LYNCH MA.TTOX: (a) 8 that CHAAMAN would represeai him rAithfully and reprow nt hint as a seller and not represent any ~ other entity with respect to this agreement to make a secret profit; (b) that CHAPMAN would obtain I the highest price available for the property; (o) that CHAPMAN was not related to the purchaser of 11 the property; (d) that the purchaser of the propcaty was going to utilize the property for their own 12 use; (e) that LYNCH MATTOX, was the alter ego of a couple who bought the property in the name 13 of LYNCH MATTOX and who were going to reside on the property; (f) that LYNCH MATTOX 14 11 was totally unrelated to CHAPMAN. 15 58. FISHER CAPITAL made the following rnisrepreseastations at many tutus prior to the 141 We of the property to O'BRMN and the other Flaiatitfs: (a) that they were the actual purdwers and 1 users of ft property and were going to buy the property not for sesalo, but to live on the property; 18 (b) that they were paying fair market value for tho property; (c) that they were unrelated to ] CZ•i"bL4 . (d) that they were =related to the TRADITION or any other cotity prior to the time 2 they purchased the lot, oar arty other entity associated with the TRA.DMON before they purchased 2111 the lot. 59. LYNCH MATTOX and MATTOX made tho following misrepresentations at many 23 times prior to the sale of the property to O'BRIEAI and the other Plaintiffs: that they were going 24 to utilize the property for themselves; (b) that they were unrelated to CHAPMAN when CHAPMAN 25 was going to sell the property after LYNCH MATTOX purrbmed it and abare in the profits then * 2 (a) that LYNCH MATTOX was really an alter-ego for a couple who were going to reside on the 27 property; (d) that the transaction was sold for the highest market that could be obtain for the pd~6~++rtetr~aron FOURTH AMHHbBp L*Ktr Alff FM "AUD ' 17 Exhibit- ZL Page -/-5-T10-1f 12/09/2005 17:11 1 ALS PAGE 21 III property at the time of the sale. ?AGC 25i'3I^ 1 60_ .REISINGER made the following misrepresentations at many times prior to the sale of the property to O'BRIEN and the other Plaintiffs: (a) that thgy were ft wtual purchasers and users of the property and were going to buy the property not for resale, but to live on the property; (b) that they wen: paying fair market value for the property; (c) that they were unrelated to C HAPMAN; (d) that they were unrelated to the TRADITION or any other entity prior to the time they purchased the lot, or any other entity associated with the TRADITION before they purchased the lot. 61. Plaintiff O'BRIBN, justifiably relying on the representations made mw times prior 1 Ito the We of the property of CHAPMAN and the other Del'ertdants, sold his property through 11 CHAPMAN to Defendant FISHER CAPITAL on or about August 6, 1999. Defbndant CHAP•IVIAN represented to O'BRIEN prior to and at time of We that be would obtain the beet fair market value 13 and the sale price of the property was the fair market value of the prop". Neither CHAPI4IAAN 14 nor FISIM CAPITAL disclosed to Plaintiff O'RPJEN their connection, or the fact dw CHAPMAN 15had an mterest in FISHER CAPITAL, nor the true market value of the property. On or about 1 November 1999, Defendant FISHER CAPITAL mold the O'BWEN property to a third party for 1 an amount well in excess of price paid to O'BRIEN. 18 62. On or about March 29, 1999, Plaintiff O'BRIEN justifiably relying on the 1 rgwmentationns of CHAPMAN Bold his property through CHAPMAN to Defendant FISHER CAPITAL. Defendant CHAPMAN represented to O'BRIEN prior to and at time of sale that he 21 Would Obtain, the best fair market value and the sale price of the property was the fair market value 22 of the property. Neither CHAPMAN nor FISHER CAPITAL disclosed thoir relationship, nor the true market value of the property. On or about May 10, 1999, Defendant FIMHBR CAPITAL resold 2 the O'BRTEN property to a third party for approximately $225,000 over the price paid to O'BRIEN, 25 63. At the time these representations, including those of the fair market value of the property, were made to Plaintiffs; by CHAPMAN on behalf of all named Defendants prior to the sale, during the time the property was far sale, and at the sale of each property, Plaintiffs believed the Oe~16Mdv f wnNrl cart FOMTO A1~(Eiiipplf Mkft AMT FOR FRAUD 18 - - Exhibit Page of 12/09/2005 17:11 1 ALS PAGE 22 reprexentalions to be true and relied upon and were juttirkW in r_.-~nng upon thaw rLTimointatic»s of CHAPMANT acting as their broker, that the male price of the property was at fair market value. 64. Defendants, at the time of the rglmentations by CHAPMAN to Plaintiffs, knew the represti=ions as to the fair market value wine false, and intentionally and willfully partieipatod iu the scheme whereby CHAPMAN would misrepresent the we market value of the properties to Plaintiffs to induce them to sell at below fhir market value so Defendants could rose][ the Properties shortly thereafter at large profits shared by Alt Defendants. 65. At that time of these sates, Plaintiffs did not know the true value of their pK9e6Y eaed were relyin8 on Defendant CHAPMAN not to misreprwnt the value of the property. and as a result 1 of this reliance, Plaintiffs refrained from seeking other markets, changed their positions, ad sold 11 their properties through CHAPMAN, to their detriment, as they did not receive fkir market value. 12 66. In an attempt to defraud Plaintiffs, Defendant CHAPMAN miw prcwvW the value 13 of the properties to Plainpff'a in a wheme in which CHAPMAN, THE TRADITION, FISH M 1 MATTOX, FISHER CAPITAL, LYNCH DrfATTOX and REISINGER, participated in firttding, 15 purdming and transferring the property to LYNCH MATTOX or FISM CAPITAL or ad= i 141 termed Defendante, who then resold tho same property within daya, weeks, or manths to third parties 1 £or greatly irtcraased profits, shared by All Dofen,bAU- 2 67. At the time, it was not disclosed to Plaintiff's that the prospectivc purcbaseM 1 Defendants FISHER CAPITAL and LYNCH MATTOX, were entities in which CHAPMAN was 2 igvolved, or were retatives► of CHAPMAN, nor that FISHER CAPITAL and LYNCH MATTOX bad 21 pwthased odw properties in TM TRADITION. ttor that properties purchased from Plaintifh were 22 resold by LYNCH MATPOX or FISHER CAPITAL shortly after pmhaw at large profits shared by all nvwA Defendants. 68. As a proximate result al' Defendants.' fraud, Plaintiffx were deprived from, rcWvh* the fair ma imtt value on the We of their property. 69. The aforwAmdoned acts of riefendantts, and welsh of them, were wilful, oppressive and malicious. Therefore, Plaintiffs are ontitled to Punitive Damages in an amount according to proof. p~ op„ MMTH AWRIM A C0MnaRrT FAR MOM 19 Exhibit 14 Page 1,53 of Qa3 12/09/2005 17:11 . 1 ALS PAGE 23 nll. 1WJ= CAM of ASnit n 70. Plaintiffs reinootporste and reallege paragralahs i through 69 as if fu11y met forth. 71. Plaintiffs entered into written agreements with CHAPMAN to sell their property at fair market value. 72. Tho termt of the ag moments were that CHAPMAN would obtain tho highest fair 8 market value possible for sale of Plaintiffs' lots and that CHAPMAN would handle tits tranwtion as broken for Plaintiffs, to whom CHAPMAN owed a duty of fub disclosure of all relevant facts 1 regarft the We of the pmparty. In rahm Plainsiffi agreed not to seek any other broker to mwket 11 the property, and CHAPMAN would be entitled to a commission in ex4:u *t for obtaining the best 1 faiw mat rot value stile price of Plainti!'i' property. 13 73. T e aforementioned Plaiutifli perfcarn all condidogm covenants and promises 1 roquircd by each of them tD be petfa med in accordance with the tetms and conditions of the contract 15 to sell their properties at market value. . 16 74. Defondamt CHAPMAN bmacbed the contract by piling to sell the proper iee of the 1 afammentkwied Plaintiffs at fair market value, by failing to disclose that they were being sold to 1 relatives or to entities in which CHAPMAN lied an interest, and that they were boWg sold at less 1 than market value only to be resold in Zhu neaps future at hundreds of thousands of dolls ra of profit. 2 75. As a mbault of CHAPMAN's broach of contract, Plaintiffs have snflbr'ed darnages 21 accotft to proof. 22 WH.lf"OR I Plaint M pray for timmages as set forth below. 7,311/1/ F~ .m, FOEMM AMENDED OOMMAWt• FOR PaAUD 20 Exhibit 44 Page 1:54 of-223 12/09/2005 17:11 1 ALS PAGE 24 21 1 IXr. THIP.9 CALBB OR ACCtON @RFAC-11 OF AND TRADITION 80 75. Plaintiffs reincorporate and roallege p8raWsph9 1 through 75 as if fu11Y get forth. 77. Defendnat CHAPMAN is an the Board of THE TRADITION, jr, President of TRADITION GOLF CLUB, owner of CHAPMAN GOLF CLUB DEVELOPMENT, LLC, is President and Board Member of TRADITION HOMEOWNERS ASSOCIATION, and a licensed California State Real Estmto Broker. CRAPMAN was a broker for Plaintiffs in the sale of the properties, and owed a duty to each of THE TRADITION'a members, including Plain ice, as both their real estate broker selling their property and as officer, owAa, and Board Member of the TRADITION ONOOWNP.RS ASSOCIATION, to which Plaintiff's belong. 78, Defendants THE T ADMON and CHAPMAN GULF CLUB DEVELOPMENT, 15 LLC, as owners of the drmWpriuent and controlling the development, and Defendants 'T'RADITION I HOMBO WNM ASSOCIATION and CHAPMAN as President and Board Member, We a fiduciary 17 duty to Plaintiffs. THE TRADITION, TRADITION HOMBOWIJBRS ASSOCIATION, and 1S CHAPMAN GOLF QUB DEVELOPMENT, LLC. authorized CHAPMAN to act as he did in his 19 capacity of broker, ®clliug Plaintif'fs' properties, and not allowing othez brokers on the property, and 20 t onteubg that if sales were made by other broker, those purchasers would not be admitted to the 21 Golf Club. 22 79, CHAPMAN, as a licensed real estate broker, bro wood the following duties to all 23 Plaintiffs heroin: (a) he represented that he was representing their irdereas above all else and was 24 not representing the pwuhaecrs of the properties; (b) he roprescnted thst he woWd gain the highest 25 price powi'ble and represented that he owed the utmost duty of loyalty to each Plaintiff; (c) he 2 repraseanted that the would' avoid conflict of interest; (d) he representod that he would not undertake 27 adverse trust, (e) he reprasmed that he would keep the properties of Plaintiff's' separate from others FOr1RYIt AMSNM CAMPLA,W Ka MUD pocTb'w,fr]yNa,nend.v~n 21 Exhibit f~ Page /,!5,5of -:)a3 12/09/2005 17:11 1 ALS PAGE 25 11 and woulZ not ht. involved insofar as being a Par il:ipart as purcbaatr of tho propene he represented that he. would treat plaintiff's 'with Wmess and with the same standard at wd as the 3; t=ustaae and look solely to the interests of Plaintiffs: (g) he represented that be would melee Full 4f disclosure of all material facts to Plaintiffs; (h) he reprewted that he would disclose all offers to 3 buy ttu property and would solicit offm through all members of the public who would be interested; (i) he represented that he would reftiain from dual representation without bU disclostre as to both 7 principals and that he was in fact one, of the principals purchasing the lots CHAPMAN as a member 8 of the Board of the TRADITION. THE TRADITION GOLF CLUB, MAPMAN GOLF DEVELOPMENT and THE TRADITION HOMEOWNERS' ASSOCIATION breached their 1 fiduciary duties to Plaintiffs by, (a) icy, aadng that CHAPMAN was a liowwed reel eo*w broker 11 who would obtain the highest possible price for Plaintiffs' properties: (b) represootua8 that they 12 would Prot= Plainiffs from unwrupulous practices such as "double-crowing" atiad makinpl profits 13 on their lots by buying theca under market value and selling them, within days or weeks to some me 1 else at a, higher price which was market value and pocketing a secret profit; (a) representing that they 1 would protect PlaindfD from being takers advantage of by unscrupulous brokers; (d) mmmeatiag that 1 they would do whatever was ==my to pwumt Plaintiffs who Went metnbas of the Auoviadon;, 1 (e) representiAg that they would slow undivided loyalty to the Pisiatiffs who were members of the 1 Aisociatioa~. 1 80. Ddmdaau CHAP)wIAN, CHAPMAN GOLF CLUB DEVELOPMENT, L.LC, THE 20 TRADITION, and TRADITION HOMEOWNERS ASSOCIATION broached threir fidu*ry dufias 21 in mitire Msenting the value of the property to all PlRhvlfl's and taking advantage of thm by mesas 2 of these miarepn`scntaton, eoMing plaintiffs into selling the pmpeny for a reduced value and 23 selling to the other Defendants without disclosing to Plaintiffs the association between CHAPMAN 2 and the namaed Nfendant P=hasers, and further breached their duty by resellft the propatca 2-4 within days. weeks, or rnonduh with the participation of the ranaiainrg Defendants, to known waiting 2 purchssem not Defemdants, an fair market value, making a substantial profit on the resoles which 2 occurred shortly arbor, within days, weeks, or months, to the detriment of PlaintiM and to the POUi71L AMOMM CpidM~11NS FOR VAUD 22 Exhibit Page / S (a of 12/09/2005 17:11 1 ALS PAGE 26 I advantage of .atl Defendants who, tb=u& the breach of this duty, all shared in the illegally gained profits, This was further accomplished by CHAPMAN, CHAPM" GOLF CLUB 3 DEVELOPMENT, LLC, THE TRADITION and TRADITION HC►NEOWNERS ASSOCIATION, 4 in concert with all other Defendants, setting up circumstaaccs that would trot aUow other real estate S broken other than CHAPMAN io be a listing agant for properties of Plaintiffs because of not allowing other real estate brokers an the properties and/or fteatening other brokers and Plaintiffs 7 that CHAPMAN owned the Golf Club and would not let purchasers through other brokers join the 8 Club, 9 1 it WHEREFORE, Plaintiff's pray for damages as set forth below. V. 1311 81 14 82, 151 situated. EPZM CA ()F- &aLQN Plaintiff reincorporale and rexUage paragraphs I through 80 as ,if fully set forth- Plaintiffs bring this action on their own behalf and on behalf of ali persons similarly I 83. All Plaintiffs suffered the ssmo resuaint of trade by THE TRADITION. CHAPMAN, 17 CHAPMAN GOLF CLUB DEVELOPMENT, LLC, and all other Dof mdants' oonduct, as above 1$ alleged, by fbxtherance of the unlawful conduct by refusing to cooparate with or share commissions 1 with outside real estate brokers, refusing to allow other brokers on the promises and if so, to have a guard to escort them to one properly alone with that property owm, and/or by C HAPMAN's 21 representatim to other barokcrs and Plaintiffs, on behalf of all other 'Defendants, that if sales were made through atbor broken, purchasers May not be admitted to the Golf Club. 84. Plaintiffs have been roatrained aad supprewed from obtaiWng competition of other brokers, commissions, and proper fair market value sales of their property. Plaintiffh have been deprived of the beamfit of free, competitive negotiations for real property listing and are forced to enter into CHAPMAN's listings, commissions and sales, which are excessively below market value. 1// p~dl6dw~ErlyM ~snw+d eem poUIXTH AMeWDBD OOMPtAWT FOR MAUD 23 Exhibit 4 Page IS of X2.3 12/09/2005 17:11 1 ALS PAGE 27 .=.A : -V1 1 35. I~ei"endant:, and each of them, conspirrd by entaring, into a schema vi-hereby they 2 would provide funds to C'HAPMAN to purchase the lots at below market value to reeeil at aprofit; '11 and agreed and Continue to conspire and agree to obtain an exclusive right to sell properties at THE 4 TRADITION to control the cormsi"ion rate and to control all aspects of sales, purchases and tsusfer of properties at THE TRADTTTON, by the conduct alleged in parsagWh 57 above. 86. Defendants THE TRADITION, C1iAPMAN, CHAPMAN GOLF CLUB DEVELOPMENT, LLC, and each of the other Decants have prohibited outside rest estate agents from soliciting sales in THE TRADITION's property by a coarse of action which dissuades third ply real estate broken from being involved in the purchase and We of properties within THE 10 TRA331TION, including that those who pwchase from brokers other than CH"MAN may not be 11 allowed in the golf Club, the major selling point of the property, and by limiting access to the 12 properties by outside brokers, all in an attempt to crate an artificial market which is lower than the 13 actual market to allow $4108 be made only by/through Defendant CHAPMAN as broker selling to 14 other named Defendants at less than fair market value so that all the Defendants could profit by 15 resale of the property at fair market value. DefeWants, through CHAPMAN, also made statements 16 that any who purchase properties from other than CHAPIMAN may not be allowed to become III members of the Golf Club. 18 87. As a direct oonsequence of the acts of Defendants, and each.of them, competition in 1 prices of real estate, broker commissions, and the market value of the We have been afr'eoted, sad Plainti,ff® have bees deprived of the benefit of full competitive negotiations for real property listings, anal bave been (breed to sell their properties through CHAPM,AN and the other DeAmdtlnts, and at their below market rates, which properties are in turn resold within days, weeks or months at a substantial hundreds of thousands of dollars profits, all to the benofit of Woudams, and the detrimcm of Plaintiffs. WHEREFORE, PWndffi pray for damages as set forth below. 111 24 Exhibit d Page IS 9 of Qa 12/09/2005 17:11 1 ALS PAGE 28 VI. EEM CAM alp ACTION aWNTIONAU INTERnR1Etl11C1E M CnMr~=rtsr rnnxtr.,.~r ,~pV G11~1 J VAS 88. Plaintiffs reincorporate and reallege paragraphs 1 through 97 as if fully set forth 89. Plaintiffs who were owners of property at THE TRADITION, which is owned and controlled by CHAPMAN and other Defendams, had contrwts for sale with brokers other than CHAPMAN and were entitled to pursue We of their property to obtain the economic benefit of contractual relationships with brokers who could and would obtaio for Plaintiffs the best fair market l value for sale of their property. 11 90. CHAPMAN and the other Defkndants refused to allow brokers access to the properties and in other ways as alleged above and incorporated herein and conduct prohibited Plaintiffs from selling their pxnperti<as through any other brokers and could only do so through CHAPMAN who sold properties ai leas than market value to the other Defendants, -and then in a abort time (even 1511 within days, weeks or months) resold the properties at hundreds of thousands of dollars of profit, all 16 to the detriment of Plaintiffs. 1 91, The acts of interference were that other brokers were not given access to enter THE 1811 TRADITION and that CHAPMAN, on behalf of all Defendaats, wed that purchasers through 1 brokers other than CHAPMAN would not be admitted to the Golf Club which he owned, one of the Z major reasons for purchasing property at THE TRADITION. 21 92. These were intentional acts by Deft idants, atad each of them, in order to induce Plaintiffs to cease their telatiouships witb any outside bookers and to deal avay with CHAPMAN to sell their properties, all with the intent to financially harm Plaintiffs and to sever any relations with other brokers and to deal exclusively with CHAPMAN. so that the properties could be purchased by Defendants at less than fair market value, and shortly thereafter resold by Defendants at largo profits. 93. As a proximate call a of Defmdauts' and each of'their conduct, plaintiff$ have suffered damages according to proof, but within the jurisdictional limit of this court, plaintiffs have suffered Pw7d&vdv1YX mend.mn Fall W AMWM COMPUNNT FOR MAUD 25 Exhibit / Page 159 of Q2 12/09/2005 17:11 1 ALS PAGE 29 actual clamagws 'IF, ,L r. cult of t,1WMAN and ea:h other Uafeadaaft" cai &Ct. and she 'll misrepresentations inade resulting in the sale of their property at less than -fair market value, and by ` Defendant r:14APMAN anti meet, nH,wr T1wCjbwAg,.r .1:e.. -A-- + - .L _ ies andlor discouraging access to the premiaee suitable and conducAve to be ablo to market 5 the properties and firrthar by representing that purchasers of property tborough brokers otbesr thsn CHAPMAN may not be admitted to the Golf Club, which interfered with their oontractual 7 relationships with other brokers was all to the detriment of Plaintiffs. 9 94, The aforementioned acts. interfering with contractual relations with other brokers were the proximate cause of damages suffered by Plaintiffs and those acts of Defendants and each of them 10 were wilihl, oppressive, fraudulent and malicious. Plaintiffs are therefore entitled to punitive 11 damages according to proof. 1 WHEREFORE, Plaintiffs pray for damages as set forth below. 13 VII. 1 S1X'f'A a vnsA QE_A ON is (1 GLC1ELA1'~' ~ 'T. T P MPECTWR RUFT1OO AU'VANTi lb (ACAIiN$T AULjF NDANTS) 17 95. Plaintiffs reincorporate and reallege paragng9w 1 through 94 as if fully act forth. 1 96. Defendants and each of them, by their ncgligvnt conduct, failed to allow atheyr broken 1 an the property, failed to coopmte with other bralcers, failed to enure that property own= would 20 be able to conduct romonable Was of their property without going through Cf'WMAN, who 21 mistttpmsented property values to Plain its thereby interfering with their opportunity to obtain the 22 advantage of gaining the fair market value upon sale of their property- 23 97. As a proximate cause of Deferdants' said each of their conduct, PlainWfi brave been 2 and are unable to obtain full market value on their property sales and are restrained from using 25 brokers other then CHAPMAN, and therefore Plaintiffs are entitled to damages AOCO Ung tO proof. 26 2 °0G FOMM AWRNM 8oMIK.A1Nr FOR FRAUD 26 Exhibit Page /&0 of ~a 12/09/2005 17:11 1 ALS PAGE 30 VM. (INT nWAL .>[Z IRF~,B~NC~ W>;T1Et FRDl~t? '1'TV~ tttntintrl~a AM-AnAGN) L TET -ALT. 7e Z A1~TS1 99. PluaOffs rducorporete and realloge paragraphs I through 97 as if tally set forth. 99. Plaintiffs are entitled to pursue wale of their property to obtain the beet market value on their property, a prospective business adveatage to which Plaintiffs arrlwete entitled. 100. CHAPMAN ad Me other Defendants, and each of than, intentionally conspired and agreed to control the purchase, sale and tr ndbr of all properties at THE T1tA MON. The conduct ] of CHAPMAN as pact of the conspiracy and agreement berweetn Defendants, and each of them, I III included repreanting to ewacrs of property at THE TRADITION that if aalos wens made through brokers odor than CHAPMAN, those purcLuers may not bB admiaed into the Golf Club, 1311 discouraging other brokers from selling the property, discouraging and malting difficult excess to the premises to other brokers, prohibiting them to be able to market the properties properly, and thereby 1511 interfering with Plaintiflfit' ability to obtain the best tnwket value on the sale of tlu"ir property. 101. The acts, conduct, conspiracy and agreement of Deibadamts, and each of them, as 171 deaeribed halin, in order to induce Plaintiffs to not use other brokers or to cease their reWiostsbip 1811 with my outside brokers and to deal with only Defendant CHAPMAN to sell their ptvpetly was the proxiasetc cause of damages to Plaintiffs as Plaintilli'e did not receive the fair market value on, the 2 We of their properties. The properties sold through CHAPMAN were pumhosed and traeefcrred 21 through the participation and conspiracy of Acfcadsaats, and each of them, to Defaadants I SIM CAPTTAL and LYNCH MATTOX, and later, within only days, weeks or mouths, were resold to other third parties at enormous profits to Defendants, and each of theta, depriving Plaaimiffs of their prospective busitem advantage and the proper fair market value of their property. ll/ FOURrN Amp colat,►mr FOR MUD 27 Exhibit 14 Page L4-p L of q 12/09/2005 17:11 1 ALS PAGE 31 11 LAW CBS OF PATRICK E. CATAI "O t2 13 Anted: March 7, 2002 By. Patrick E. CaWano, Esq. 1 Attorney for Pl in►tiflis 1 1()2. The aforementioned acts of DafondanU. and each of theta, were wilful, oppressive .2 and/or fmdulent and malicious .and Plaintiffs are therefore cntitle.4 to punitive damages. 3 WHEREFORE, Plaintiffs pray for dammees as follows; 1. For consequential damages .according to proof; 5 2. For punitive damages according to proof; 3. For actual damages according to proof, and that that sum be vebled; 7 4. For prejudgment Jntcrcst; 8 5. For attorneys' fees; 9 b. For costs of suit havin; and 10 7. For such other and Uther relief as the Court may doem just and proper. 15 1 Y 2 ro~ r~• aan rOMM AMI N= mM",AM'r FOR PBAUP 28 Exhibit Page /(PZ of O-a3 12/09/2005 17:11 1 ALS PAGE 32 CASE: Wehrle etc, Y. The 7'rad:'2n flub Ampc.. LLC, et al COURT: -Riverside County Superior Comet, Indio Branch CASE -NO, INC 020407 PROOF .OF_-SRRVM YU FAX AND 11.6. WAIL I, the urnda mignerd, declare: 23 24 25 26 27 28 I am employed in the County of Ssq Diego, State of Califoa'niL My busineaa add=s i9 I$w Offices of Patrick E. Catalano, 501 West Broadway, Suite 740, San Diego, Ca hbmiA, 92101.3544. I am over the• age of 18 years, and am not a party to the cause heroin. I am readily bmiliar with the practict of the Law Offices of Patrick E. Catalano 1br collection and pmaaeeft of documents for maftg with the Unndsed States Pas" Seralee. Corr espondame is deposited with the United States Postal Swviee oaa the same day in dw ordinary course ofbusineas, I am also fmiliar with the collection m d processing of documents for service via fauaftfle, wherein documents are faxed to the recipients on the sataae slay in the ordinary course of busies. 1011 On the below date, I served toss following documant(s) via facdmlle rand U.S. math: 14 ADVANTAGE; AND M INTENTi XAL YN'J'Ir:RRFERENCE )PYtOSPIC.TIVE BUSINESS ADVANTAGE 15 11 SUMMONS ON FOURTH AMZNDED COMPLAINT; AND FOURTH AMENDED COMPLAINT PURSUANT TO COURT ORDER- FOR DAMAGES 12 FOR (1) FRAUD; (Z) BREACH OF CONTRACT; (3) BRACH OF FIDUCIARY DUTY; (a) RESTRAINT OF TRADE; (9) INTEN''1hIONAL 13 II~ITERFERENCE WITS CONTRACTUAL ECONOMIC ADVANTAGE; (6) NEGLIGENT INTERFSRENCE WITH PROSEIPCTIVE BUSINESS on the imcrosW parties in said cause, by placing a true copy thereof in a sealed envclopa nt the Low 16 Offices of Patrick E. Catalano at the address shown above for collection, mWUng and deposit in the United States.Postal Service on that date following erdiz f business practices, and via ihcdmfle, 17 addretaed as follows: 1 a Brian S. H=ik, Esq. Helene P. Dryer, Esq. 19 ROEMM HARNIK & NETHERY, LLF 45-025 Manitou Drivc 20 Indim Walls, CA 92210 ,211 Tel: (760) 360-2400 Fax: (760) 360-1211 Attomey for Defendants 22II11 1 declare naWcr the penalty of perjury under the taws of the State of Cal%tbrnia that the foregoing is tme and avrrcal. Dated; March 7, 2002 ataet 1{,o hnWbOWT maitgrNl6/wnbKl7r/[w~m~il , po7~ e'WaY OP GARvics by VJLX 4 MIL Exhibit Page 1(,o3 of -2a3 INCO25461 Actions - Indio Civil & Small Claims Pagel of 2 ' AC1QnS (7r, Home Complaints/Parties Actions Minutes Pending Hearings Images Case Report Case INCO25461 - GERSTEL VS TRADITION CLUB Move To This Date Viewed Date I jAction Text Disposition Image a 11/02/2001 8:3 9 HEARING RE PRELIMINARY INJUNCTION - Minutes Denied [N/A AM DEPT. 2F 11/02/2001 REPLY TO (PETNR) TRAD GOLF CLUB RESP OSC RE PREL Not li bl P e I ca INJUN BY BRYAN R GERSTEL, BARBARA GERSTEL FILED App F N 11/02/2001 PROOF OF SERVICE ON THE PETITION OF BRYAN GERSTEL SERVED ON TRADITION GOLF CLUBA CALFORNIA WITH Applicable FGo I SERVICE DATE OF 10/30/01 FILED.(PERSONAL SERVICE) a 11/02/2001 OBJECTIONS TO (PETNR) DECLARATION OF DAVID CHAPMAN Not bl 1 e BY ATTY FOR PETITIONERS FILED Applica I k111 /02/2001 (ENTIRE ACTION DISPOSED (CASE COMPLETE) I Not u 1 -11 11/02/2001 FILE SENT TO IMAGING Not n Applicable F El l 11/01/2001 ] [FILED: FEDERAL AUTH CITED IN RESPONSE TO OSC RE PI jj Applicable RESPONSE TO OSC RE PRELIMINARAY INJUNCTION/DECL Not 11/01/2001 11 DAVID CHAPM FILED BY TRADITION GOLF CLUBA Applicable 10/30/2001 IIFILED: 3RD REQ FOR JUDICIAL NTC PURSUANT TO EVIDENCE 10/29/2001 ORDER FOR ISSUANCE OF WRITS & PRELIMINARY INJUNCTION & TEMPORARY RESTRAINING ORDER Not A li bl pp ca e (GRANTED); HONORABLE CHARLES E. STAFFORD. OSSC RE HEARING F/ISSUANCE O/WRITS & PRELIM INCJ Not 10/29/2001 RECEIVED AND FORWARDED TO DEPT. 2F Applicable 10/29/2001 (SIGNED) OSC RE ISSUANCE OF WRITS/PRELIM INJUNCT Not li bl RECEIVED AND FORWARDED TO DEPT. CAROLINE ca e App 10/24/2001 8:30 EX PARTE HEARING RE FOR TRO AND OSC RE PRELIMINARY Granted AM DEPT. 2F INJUNCTION. - Minutes DECLARATION OF OF BRIAN S HARNIK IN OPPOSITION TO Not 10/24/2001 EXPARTE APPL FILED Applicable FIRST APPEARANCE FEE PAID BY TRADITION GOLF CLUBA Not 10/24/2001 CALFORNIA Applicable 0/24/2001 FILE SENT TO L&M t;;; 1 OSC RE HRG ON REQ BY PET FOR ISSUANCE OF WRIT r ' 10/24/2001 RECEIVED AND FORWARDED TO DEPT. CAROLINE plicable Ap Exhibit 7f Page Z44- of . 12/6/2005 http://158.61.133.210penAccessICIVILIcivildetails.asp?casenumber=025461 &courtcode= INCO25461 Actions - Indio Civil & Small Claims Page 2 of 2 J 110/23/2001 11PETITION FILED I Applicable u F-11 10/23/2001 CASE ASSIGNED TO DEPARTMENT 2F FOR ALL PURPOSES N/A (NOTICE TO COUNSEL( IF E 10/23/2001 ]REQUEST FOR JUDICIAL NOTICE FILED ANot pplicable R:] IN 1 10/23/2001 (LODGED: OF EXHIBITS TO DECL OF BRYAN R GERSTEL 11NOt Applicable u 10/23/2001 LODGED: PETITIONERS LODGMENT OF FEDERAL AUTHRITIES Not Applicable a 10/23/2001 REQUEST SECOND (REQUEST) FOR JUDICIAL NOTICE PURSUANT TO E BY ATTY FOR PETITONERS FILED Not a Applicable F N 10/23/2001 1 EX PARTE RE: APPLICATION FOR TRO AND OSC RE 1PRELIMINARY INJUNC BY BRYAN R GERSTEL, BARBARA (;FRSTF.I. FII.FD. FApplicable ] kj PROOF OF SERVICE OF PETITION FOR WRIT OF MANDATE/DECLS/RJN ETC SERVED ON INTERESTED Not GO N 10/23/2001 PARTIES/PERS SERV SERVED 10/23/01 FILED (NON- Applicable COMPLAINT) Exhibit # Page /&-5 of 2a3 http://158.61.133.2/openAccess/CIVIL/civildetails.asp?casenumber=025461 &courtcode=... 12/6/2005 PJC435967 Actions - Riverside Civil & Small Claims ' Actions Home Complaints/Parties Actions Minutes Pending Ilearings Images Case Report Case RIC435967 - PUTMAN VS THE TRADITIONAL CLUB ASSOCIATES Move To This Date Page 1 of 2 Viewed Date IjAction Text Disposition Image a 04/24/2006 8:30 [LASE MANAGEMENT CONFERENCE HEARING AM DEPT. 02 11/21/2005 ORDER AND MINUTE ORDER TO TRANSFER REC'D & FORWD Not TO DEPT. CLERKS OFFICE Applicable N/A 11/16/2005 8:00 AM DEPT. NPS HEARING Vacated CLERK [RIVERSIDE PULATION AND ORDER FOR TO TRANSFER CASE FROM 11/14/2005 TO INDIO BRANCH IS GRA; HONORABLE DALLAS Not OTT HOLMES. Applicable 1 /ORDER TO TRANSFER TO INDIO FORWARDED TO Not 1/08/2005 ST' DEPARTMENT 2 Applicable ❑ a 11/04/2005 RECEIVED: STIP/ORDER TO TRANSFER TO INDIO Not Applicable ❑ 10/27/2005 REJECTED DOCUMENT REQUEST FOR TRANSFER TO INDIO Not SUBMITTED BY L WILLIAM PUTNAM, CAROL PUTNAM Applicable ❑ a 10/12/2005 REQUEST TO TRANSFER FORWARDED TO DEPARTMENT 02 Not Applicable 10/07/2005 PLAINTIFFS REQUEST TO TRANSFER CASE FORWARDED TO [Not ❑ DEPARTMENT CYNTHIA CARLTON A 10/06/2005 7[RECEIVED: PLAINTIFFS REQUEST TO TRANSFER CASE Not ❑ Applicable ❑ 09/15/2005 ORIGINAL SUMMONS ON COMPLAINT OF L PUTNAM Not N/A ]RETURNED AND FILED. A licable NOTICE AND ACKNOWLEDGEMENT OF RECEIPT OF 09/1.5/2005 SUMMONS AND COMPLAINT OF L PUTNAM AS TO THE [Applicable ot PI TRADITION CLUBASSOCIATES WITH RECEIPT DATE OF P ROOF OF SERVICE BY MAIL ON THE COMPLAINT OF L 09/15/2005 PUTNAM SERVED ON THE TRADITION CLUBASSOCIATES Applicable N/A FILED; DATE OF MAILING 09/0I/05 IN 108/24/2005 11 CERTIFICATE OF COUNSEL FILED. Not I`" 1 Applicable Imo' 08/24/2005 -1 1COMPLAINT FILED FAST TRACK - SUMMONS ISSUED. I[ Not Applicable a NON PRO 8/24/2005 JI N DE TCLEORFKSERVICE HEARING SET FOR 11/16/05 AT 8:00 I 1 1 0 F-1 DIRECTLY ASSIGNED TO DEPARTMENT 02 FOR ALL Exhlbrt f f Page /CQ of aa3 http:// 158.61.133.2/OpenAccess/CIVIL/civildetails.asp?casenumber=43 5967&courtcode=... 12/6/2005 RIC435967 Actions - Riverside Civil & Small Claims Page 2 of 2 [____]I08/24/2005 IIPURPOSES II -IUI Exhibit Page /(07 of 2a3 http:// 158.61.133.2/OpenAccess/CIVIL/eivildetails.asp?casenumber=435967&courtcode=... 12/6/2005 Abridged Vita W. ED. WHITELAW POSITION President AND ECONorthwest ADDRESS 99 West 10th, Suite 400 Eugene, Oregon 97401 (541) 687-0051 whitelaw@eugene.econw.com EDUCATION Professor Department of Economics University of Oregon Eugene, Oregon 97403 (541) 346-4661 Ph.D., Economics, Massachusetts Institute of Technology, 1968 B.A., Mathematics, Political Science, Economics, University of Montana, 1963 EMPLOYMENT December 2005 1981- Professor, Department of Economics, University of Oregon 1974- President, ECONorthwest 1987-90 President, Economic Policy Institute Northwest (EPI) 1974-75 Staff Economist, Oregon Coastal Conservation and Development Commission 1970-81 Associate Professor, Department of Economics, University of Oregon 1970-71 Visiting Research Fellow, Director of Urban Studies, Institute for Development Studies, University of Nairobi, Nairobi, Kenya (financed by the University Development Program, Rockefeller Foundation) 1970-71 Chief Economist, Nairobi Urban Study (financed by the Nairobi City Council, Kenya Ministry of Finance and Economic Planning, and the United Nations Development Program) 1967-70 Assistant Professor, Department of Economics, University of Oregon 1967-70 Research Associate, Bureau of Governmental Research, University of Oregon HONORS, FELLOWSHIPS AND SCHOLARSHIPS University of Oregon Ersted Award for Outstanding Teaching, 1970 Harvard University Dissertation Scholarship, Harvard Program on Regional and Urban Economics, 1966-67 MIT Woodrow Wilson Fellowship, 1963-65 MIT Graduate Fellowship, 1965-66 Graduate Fellow, Economic Development Administration Summer Institute, Williamstown, Massachusetts, 1966 University of Montana High Honors Pi Mu Epsilon, Mathematics Honorary Phi Kappa Phi, Scholastic Honorary Exhibit H Page 2 of TECHNICAL ADVISORY AND EDITORIAL POSITIONS 1998- Goal 5 Regional Resources for Fish and Wildlife Habitat Protection Peer Review Committee, Portland Metro 1991- Eugene Register Guard, Board of Economists 1989-05 Oregon Progress Board, State of Oregon; committees: Chairperson, Benchmark Update Committee; Member, Vision Committee; Member, Sustainability Measurement Work Group 1995-98 Environmental Protection Agency, National Advisory Council for Environmental Policy and Technology 1987-92 Pacific Northwest Executive, Forecast Panel 1988-90 Board of Advisors, Northwest Policy Center, Seattle, Washington 1980-90 Board of Directors, Pacific Northwest Regional Economic Conference 1987-89 Economic Development Commission, State of Oregon 1986-87 Board of Directors, Eugene-Springfield Metropolitan Partnership 1984-86 Portland Business Journal, Board of Economists 1979-86 Head, Real Estate Research Committee, Eugene-Springfield 1972-86 Editorial Committee, The Annals of Regional Science 1984-85 Oregonian, Business Forecast Panel 1984-85 Demand Forecasting Advisory Committee, Northwest Power Planning Council 1981-83 Scientific and Statistical Advisory Committee, Northwest Power Planning Council 1980-82 Governor's Council of Economic Advisors, State of Oregon 1980 Water Resources Division, Department of Natural Resources and Conservation, State of Montana 1979-80 Employment and Training Division, Department of Labor and Industry, State of Montana 1977-78 Advisory Committee on Economic Decline and Fiscal Stress in Cities, President's Domestic Council 1977-78 Task Force on Local Economic Planning, Oregon Department of Economic Development 1976-77 Advisory Committee, National Science Foundation Project on Onshore Impacts of Offshore Oil and Gas Exploration and Development 1972-75 Citizens' Advisory Committee on Transportation Planning, Lane Council of Governments, Lane County, Oregon 1972-74 Planning Committee, University Consortium on Transportation, Oregon Department of Transportation PUBLICATIONS Subject to Formal Peer Review An Analytic Typology for Examining the Economic Effects of Ecosystem Management. University of Michigan, School of Public Policy. Working Paper #407. With Paul Courant and Ernie Niemi. 1997. Assessing Economic Tradeoffs in Forest Management. U.S. Department of Agriculture, Forest Service, Pacific Northwest Research Station. General Technical Report. PNW-GTR-403. With Ernie Niemi. 1997. 1999 (revised). "Environmental Protection and Jobs: A Brief Survey." With E. Whitelaw. 1995. A Method for Estimating the Economic Effects of Habitat Protection. Portland Oregon: U.S. Fish & Wildlife Service. With Ernest G. Niemi. 1993. January 1994 Final. The Potential Social and Economic Impacts of Long Rotation Timber Management. Portland, Oregon: U.S. Forest Service, Pacific Northwest Research Station. With Ernest G. Niemi. May 1993. VITA: W. ED. WHITELAW December 2005 Page 2 Exhibit Page Pacific Northwest Forest-Policy Baselines. Washington, D.C.: The Wilderness Society. With Ernest G. Niemi. April 1993. "New Conflicts Stir Managers of U.S. Forests." Forum For Applied Research and Public Policy, Volume 6 (3). University of Tennessee, and Oak Ridge National Laboratory With Ernest G. Niemi and Rob Mendelsohn. 1992. Transition Strategies for Timber-Dependent Communities. Washington, D.C.: The Wilderness Society. With Ernest G. Niemi and Carl Batten. 1990. New Perspectives and the Forest Service: A New Way of Thinking. Washington, DC: U.S. Forest Service. With Ernest G. Niemi and Robert Mendelsohn. 1990. "Oregon's Strategic Economic Choices." In LuAnna McCann (Ed.), Oregon Policy Choices. University of Oregon Bureau of Governmental Research and Service. With Ernest G. Niemi. 1989. The Economic Impact of Proposed Changes in Washington State Forest Practices Rules. Olympia: Washington State Department of Natural Resources. With Robin Gregory. 1987. Generic Coal Study: Qualification and Valuation of Environmental Impacts. Portland: U.S. Department of Energy, Bonneville Power Administration. With Ernest G. Niemi. 1987. Economic Analysis of the Environmental Effects of a Combustion-I7crbine Generating Station (at Fredricksen, Washington). Portland: U.S. Department of Energy, Bonneville Power Administration. With Robert Mendelsohn and Ernest Niemi. 1984. Economic Analysis of the Environmental Effects of a Coal-Fired Electric Generator (at Boardman, Oregon). Portland: U.S. Department of Energy, Bonneville Power Administration. With Robert Mendelsohn and Ernest Niemi. 1983. Review of Methodologies for Assessing the Environmental Costs and Benefits of Acquisitions. Benefit- Cost Analysis and Environmental Impacts: A Review of the Literature and an Evaluation of Methodologies. Review of Methodologies for Assessing the Environmental Cost and Benefits of Acquisitions. Portland: U.S. Department of Energy, Bonneville Power Administration. With Julia M. Friedman and Ernest Niemi. 1981. "Measuring the Effects of Public Policies on the Price of Urban Land". In J. Thomas Black and James E. Hoben (Ed.), Urban Land Markets: Price Indices, Supply Measures, and Public Policy Effects. Washington, DC: Urban Land Institute, 1980. "Urban-Rural Income Transfers in Kenya: An Estimated Remittances Function." Economic Development and Cultural Change 22(3). With George E. Johnson. 1974. Not Subject to Formal Peer Review "Hungry for Answers." Oregonian. Tapogna, T. and E. Whitelaw. Spring 2004. "Drifting away." Oregonian. Tapogna, T. and E. Whitelaw. October 2003. "The High Cost of Free Water." Whitelaw E. and E. Niemi. Oregon Quarterly. Spring 2003. "Families and businesses that brave the state's faltering economy risk an unstable future." Oregonian. Whitelaw, E. and J. Tapogna. February 2003. "A Framework for Estimating the Costs and Benefits of Dam Removal." BioScience. Whitelaw, E. and E. MacMullan. August 2002. "Bridge Over Troubled Water." Oregon Quarterly. Whitelaw, E. and E. Niemi. Winter 2001. VITA: W. ED. WHITELAW December 2005 Page 3 Exhibit Payze 17 6 of .2 a 3 Coping with Competition for Water, Irrigation, Economic Growth, and the Ecosystem in the Upper Klamath Basin. Niemi, E., and A. Fifield, E. Whitelaw. November 2001. "Evaluating Takings and Measure 7." Oregon's Future. Whitelaw, E. and R. Pozdena, T. Moore, J. Tapogna, J. Ebenhoh. Spring 2001. Green Building.- Saving Salmon, the Environment, grd Money on the Path to Sustainability. Under a grant provided by: The Center for Watershed and_ Community Health, Mark 0. Hatfield School of Government, Portland State University. 2000. ECONorthwest. 2000 "Breaching Dam Myths." Oregon Quarterly. Whitelaw, E. Autumn 2000. "Bird Of Doom ...Or Was It?" The Amicus Journal. Niemi, E., and E. Whitelaw, with Elizabeth Grossman. Fall 2000. Saving Salmon, Sustaining Prosperity, An Introductory Handbook and Reference for the Puget Sound Region and Washington. Under a grant provided by: The Center for Watershed and Community Health, Mark 0. Hatfield School of Government, Portland State University. 2000. "Salmon and the Economy." Conservation Biology in Practice. Niemi, E. and E. Whitelaw. Spring 2000. Salmon, Timber and the Economy. Pacific Rivers Council, Oregon Trout, Audubon Society of Portland, and Institute for Fisheries Resources. Niemi, E. and E. Whitelaw, M. Gall, and A. Fifield. December 1999. The Economic Wellbeing of Michigan Bands of Native Americans. Michigan Department of Natural Resources. December 1999. (Confidential litigation product.) Salmon and the Economy, A Handbook for Understanding the Issues in Washington and Oregon. Under a Grant provided. by: The Center for Watershed and Community Health, Mark 0. Hatfield School of Government, Portland State University. ECONorthwest. November 1999. "Reforming Welfare Reform." Oregon Quarterly. Tapogna, J. and E. Whitelaw. Autumn 1999. An Economic Strategy for the Lower Snake River. Trout Unlimited. With Ed MacMullan. November 1999. The Sky Did NOT Fall: The Pacific Northwest's Response to Logging Redactions. Earthlife Canada Foundation. Sierra Club of British Columbia. Niemi, E., E. Whitelaw, and A. Johnston. April 1999. The Ecosystem-Economy Relationship: Insights from Six Forested LTER Sites. National Science Foundation. Courant, P., E. Niemi, and E. Whitelaw. November 1997. "Costs and Benefits: Reflections of an Oregon Economist." Inquiry. November 21, 1997. "What Price Prisons?" Oregon Quarterly. Summer 1997. "Integrating Resource Conservation and Economic Development." With Paul Courant and Ernie Niemi. 1997. "New Economic Perspectives of Ecosystem Management: A Critique of Recent Efforts." May Submission to Environmental Management. With Paul Courant and Ernie Niemi. 1997. The Potential Economic Consequences of Designating Critical Habitat for the Rio Grande Silvery Minnow: Draft Report. U.S. Fish and Wildlife Service, New Mexico Ecological Services Field Office. ECONorthwest. With Ernie Niemi and Tom McGuckin. 1996. VITA: W. ED. WHITELAW December 2005 Page 4 Exhibit Economic Well-Being and Environmental Protection in the Pacific Northwest. Pacific Rivers Council. With Tom Power. 1996. Facing the Tradeoffs: Economic Development and Resource Conservation in Louisiana. ECONorthwest. With Ernie Niemi, Colleen Heflin and Allison Gorr. 1996. Pacific Northwest Regional Economic Elements Affected by Fish Hatchery Management Decisions. Columbia Basin Fish and Wildlife Foundation. 1996. The Potential Economic Consequences of Designating Critical Habitat for the Marbled Murrelet: Final Report. US Fish and Wildlife Service, Portland Field Office. With Ernie Niemi, Ed MacMullan and David Taylor. 1996. Economic Consequences of Management Strategies for the Columbia and Snake Rivers. With Ernie Niemi and Ed MacMullan. 1995. Economic Consequences of an Injunction to Protect Salmon Habitat on the Wallowa-Whitman and Umatilla National Forests: Preliminary Report. With Ernie Niemi and Ed MacMullan. 1995. "Putting Merit in the Matrix." Oregon Quarterly. Winter 1995. "Rich Oregonian, Poor Oregonian." Oregon Quarterly. Summer 1995. Integrating Economics and Resource-Conservation Strategies. With Ernie Niemi. June 1995 The Columbia River and the Economy of the Pacific Northwest. With Ernie Niemi and Ed MacMullan. May 1995. "Dubious Theory About Economy Leads us Astray." The Register Guard. May 1995. "Oregon's Money Doesn't Just Grow on Trees." The Oregonian. April 1995. The Economic Consequences of Protecting Salmon Habitat in Idaho (Preliminary Report). With Ernie Niemi. Pacific Rivers Council. March 1995. The Full Economic Costs of Proposed Logging on Federal Lands. With Ernie Niemi. March 1995. "Other Lessons from the Northwest." Vermont Law Review. Volume 19, #2, Winter 1995. The Potential Economic Consequences of Critical-Habitat Designation for the Lost River Sucker and the Shortnose Sucker, Final Report. U.S. Fish and Wildlife Service. With Ernie Niemi. August 1995. The Potential Economic Consequences of a Reduction in Timber Supply from the Tongass National Forest. With Ed MacMullan. December 1994. "Swimming Upstream." Oregon Quarterly. Winter 1994. "School Dazed." Oregon Quarterly. Summer 1994. Economic Critique of the FSEIS on Management of Old-Growth Habitat. With Ernie Niemi. March 1994. "Guessing at the `Hood: An Urban Future." Oregon Business. January 1994. "Growing Pains." Oregon Quarterly. University of Oregon, Eugene, Oregon. With Terry Moore. Spring 1994. Environmental Externalities and Utility Regulation. Washington, DC: National Association of Regulatory Utility Commissioners. With Ernest G. Niemi. September 1993. VITA: W. ED. WHITELAW December 2005 Page 5 Exhibit to Page I *12 of 12 23 "After the Owl." Old Oregon. With Ernie Niemi. Winter 1993. Reprinted in the Seattle Post- Intelligencer as "Jobs & Nature," December 12, 1993. "Oregon's Real Economy." Old Oregon. Winter 1992. Reprinted in Eugene Register Guard. December 13, 1992, and through Oregon Business' datafax system, February 1993. "Payback Time." Old Oregon. Spring 1992. Investing in Dislocated Families. With Ernie Niemi. 1990. "A More Civil War." Old Oregon. With Ernest G. Niemi. Winter 1990. "Oregon's Turn: A Blueprint for Economic Growth in the 1990s." Old Oregon. Spring 1990. "A Log-Export Ban, Alone, Is Not Enough." Eugene Register-Guard. October 13, 1989. Reprinted in Portland Oregonian, Pacific Northwest International Trade Association Trade Winds, and various Oregon weeklies. With Ernest G. Niemi "Money: The Debt We Owe Ourselves." Old Oregon. With Ernest G. Niemi. Autumn 1989. "Plan Now For More Timber Industry Changes." Eugene Register-Guard. July 25, 1989. Also published in Portland Oregonian. With Ernest G. Niemi. "Looking Beyond the Owls and the Logs: A White Paper." Prepared for Governor Goldschmidt's statewide Timber Summit. With Ernest G. Niemi. June 1989. "Improving Oregon's Economy by Improving its Schools." Proceedings of the 23rd Annual Pacific Northwest Regional Economic Conference. With Ernest G. Niemi. June 1989. "Migration, Economic Growth, and the Quality of Life." Proceedings of the 23rd Annual Pacific Northwest Regional Economic Conference. With Ernest G. Niemi. June 1989. "The Greening of the Economy." Old Oregon. Spring 1989. Reprinted in Portland Oregonian (April 3, 1989), the Sierra Club Runoff (April 1989), and Forest Watch (April 1989). With Ernest G. Niemi. "The West, Garbage, and the American Dream." Pacific Northwest Executive. January 1989. With Ernest G. Niemi and Terry Moore. "Focusing the Northwest's Vision." Pacific Northwest Executive. With Ernest G. Niemi. 1988. "The Once and Future Northwest." Old Oregon. With Ernest G. Niemi. Autumn 1988. "Developing a Strategic Plan for Regional Economic Growth." Proceedings of the 22nd Annual Pacific Northwest Regional Economic Conference. June 1988. "Getting Controversial Public Facilities Built: How Can Economics Help?" Proceedings of the 22nd Annual Pacific Northwest Regional Economic Conference. With Terry Moore. June 1988. "Electricity Prices and Economic Development: Implications for the Pacific Northwest." Proceedings of the 22nd Annual Pacific Northwest Regional Economic Conference. With Ernest G. Niemi. June 1988. "Focusing the Northwest's Vision." The Once and Future Northwest. University of Washington Institute for Public Policy and Management, Northwest Policy Center. With Ernest G. Niemi. April 1988. Managing Old-Growth Forests in the PNW. With Ernie Niemi. 1987. VITA: W. ED. WHITELAW December 2005 Page 6 Exhibit 1-{ Page j-L;~_ of a.Q3 "Strategic Economic Development for Oregon." Governmental Notes. Bureau of Governmental Research and Service, University of Oregon. December 1987. Accelerating Our Economic Development: Two Views. Olympia, WA: The Washington State Institute for Public Policy. With Thomas Tabasz. October 1987. "New Economic Strategies for Regional Development." Proceedings of the 21st Annual Pacific Northwest Regional Economic Conference. June 1987. "Local Economy Slipped During the 1980s, Teachers Kept Ahead of Inflation." Eugene Register- Guard. With Ernest G. Niemi. May 5, 1987. "Investing in Oregon's Interests: Oregon Using Wrong Strategies." Eugene Register-Guard. January 27, 1987. "The Once and Future Northwest." Pacific Northwest Executive, 2(3). July 1986. "Smokestack Memories: The Future in Our Past." Visions. The Oregon Graduate Center. Spring 1986. "Economic Choices for the Future of Our Region." Old Oregon. University of Oregon Round Table. Autumn 1985. "More is More: Small Businesses Bring Diversity, Vigor to Economy." Portland Oregonian. June 16, 1985. "The Economy and the Student: Students need more training in analysis and expression." Eugene Register-Guard. May 22, 1984. "Rising Housing Starts Needed to Trigger Employment Drop: Local Economy May Stay Bad 'Til '84." Eugene Register Guard. February 23, 1984. Analysis and Forecasts of the Demand for Rock Materials in Oregon, Oregon Department of Geology and Mineral Industries, Special Paper 5. With J.M. Friedman, E. Niemi. 1979. Rural-Urban Relations, Low-Income Settlements, Intra- Urban Mobility and the Spatial Distribution of Households in Nairobi, Kenya. Working papers in Economics No. 6. Eugene: University of Oregon, Department of Economics. 1974. Nairobi Household Survey: Description of the Methodology and Guide to the Data. Discussion paper No. 116. Nairobi: University of Nairobi, Institute for Development Studies. 1971. Nairobi Household Survey: Some Preliminary Results. Staff paper 117. Nairobi: University of Nairobi, Institute for Development Studies. 1971. The Employment and Income History of a House Servant in Nairobi 24. Staff paper 116. Nairobi: University of Nairobi, Institute for Development Studies. 1971. The Objectives and Tasks of the Economics Group for the Urban Studies of Nairobi. Staff paper 84. Nairobi: University of Nairobi, Institute for Development Studies. 1970. Interstate Comparisons of State and Local Revenues and Expenditures. Eugene: University of Oregon, Bureau of Governmental Research. 1968. CONSULTING PROJECTS Reviewed and evaluated the economic components of a feasibility study and preferred clean-up remedy for a contaminated site. 2005 ongoing. VITA: W. ED. WHITELAW December 2005 P_aF_e_7_ Exhibit H Page 174 of Qa3 Evaluated the economic consequences of allowing, limiting, or prohibiting development in significant riparian areas and wildlife habitat in the Portland-Metro area. The analysis considered the economic impacts on development as well as the value of ecosystem services provided by riparian areas and wildlife habitat. 2002-2004. Developed a model to estimate the range of economic costs and benefits of projects and policy options that affect water quality and quantity in the City's watersheds and section of the Willamette River, City of Portland. 2003-2005. Contributed to the drafting of a letter signed by more than 100 economists addressed to President Bush and the governors of eleven western states regarding the economics importance of the West's natural environment. Center for Watershed and Community Health. 2003. Studied the economic impacts associated with the operation of a hospital. Private client. 2001-2003. Developed an economic model that estimated the net benefits of riparian-restoration projects. Clean Water Services. 2002. Examined the competition for water in the Upper Klamath Basin, and the relationship between water and the economy. ECO also described strategic options for accommodating the growing competition for water, and recommended market mechanisms to help resolve these problems. Public Interest Projects. 2000-2002. Developed a method to estimate the sediment and flooding downstream costs of timber-production activities on the City of Salem. Environmental Protection Agency. 1997-2002. Developed a handbook of the economic factors associated with relicensing a hydroelectric dam. Hydropower Reform Coalition and American Rivers. 2001. Developed a mitigation plan for the potential negative economic consequences of bypassing four dams on the Lower Snake River. The plan also outlined alternatives for enhancing the positive economic consequences of the bypass. Trout Unlimited. 1999-2000. Initiated a multi-year effort to assess the economic costs and benefits of salmon conservation measures in the Pacific Northwest, and will offer policies to increase both the net benefits of salmon conservation and the probability that the region will accomplish its conservation goals. Center for Watershed and Community Health at Portland State University and Ford Foundation. 1998-2001. Described the economic causes and effects associated with the dynamic ecological systems of Oregon's Willamette River Basin. Environmental Protection Agency. 2000. Evaluated the issues of regulatory takings and compensation. The report discussed the potential effects of various implementations of Measure 7 and proposed guidelines for public policies that address the issues Measure 7 raised. Oregon Business Council. 2000. Evaluated the potential economic consequences of efforts to adjust Oregon forest practices to provide a high probability of protecting and restoring aquatic habitat on forestlands important for salmonids. Pacific Rivers Council. 1998-1999. Evaluated the economic consequences of ecosystem-management decisions in the upper Willamette River Basin, and how these consequences influence water and land use in the Eugene- Springfield area. Environmental Protection Agency. 1998-2000. Analyzing the ecological, demographic and economic benefits and costs of watershed restoration as part of a multidisciplinary team, balancing ecological needs with social constraints on investments. Environmental Protection Agency. 1997-2001. VITA: W. ED. WHITELAW December 2005 Page 8 Exhibit Page 11 of Designing the analysis and estimating the economic causes and effects relevant to the dynamic ecological systems characterizing the Willamette River Basin in Oregon. Environmental Protection Agency. 1995-2001. Evaluated the economic impacts of bypassing four Federal dams on the Lower Snake River, and developed a plan to mitigate the negative consequences of the bypass. Trout Unlimited and Earth Justice. 1999. Critiqued a draft report by the U.S. Forest Service regarding the Demand for Timber in the Tongass Forest. Alaska Rainforest Campaign. 1999. Evaluated the economic consequences of new restrictions on Alaska's fishing industry. Earth Justice. 1999. Described the economy's response in the Pacific Northwest (Oregon & Washington) to dramatic reductions in logging that occurred during the 1980s and 1990s; described how the economy prospered and why it did so much better than the predictions; and compared the logging reductions in the Pacific Northwest to the projected reductions in British Columbia. BC Wild, Earthlife Canada Foundation, and the Sierra Club of British Columbia. 1998-1999. Analyzed the economic impacts of river and wetlands restoration in the Missouri River Basin, and prepared manual for assessing the socioeconomic impacts of ecological restoration projects for rivers and floodplains in the western U.S. Environmental Protection Agency. 1995-1997. Analyzed the relationship between the regional economy and natural resources of Louisiana by presenting workshops and developing an information base for local stakeholders. Ford Foundation and Louisiana State University. 1996-1997. Analyzed problems related to scarce water resources, environmental protection, economic development, tribal self-determination, public health and public land management in the Upper Rio Grande Basin, and recommended actions and federal policies to resolve these problems. Western Water Policy Review Advisory Commission. 1996-97. Conducted a three-year study to describe, explain and communicate the relationships of forested ecosystems and regional economies. National Science Foundation. 1994-1997. Developed the preliminary design of a study to assess the potential economic costs and benefits of mandatory medical monitoring of agricultural workers who load, mix, or apply the pesticide cholinesterase. Sierra Club Legal Defense Fund. 1996. Evaluated alternatives for reforestation of marginal agricultural lands in the Lower Mississippi Delta. Business Council for Sustainable Development. 1996. Analyzed the relationship between the regional economy and natural resources of Louisiana. W. Alton Jones Foundation. 1995-1996. Analyzed the environmental externalities associated with industrial activities affecting coastal and estuarine resources in Louisiana. W. Alton Jones Foundation. 1995-1996. Evaluated the role of natural resources and traditional extraction industries in the Pacific Northwest and how they influence future economic trends for individual communities. Pacific Northwest Economics Workshop, Pacific Rivers Council. 1995-1996. Conducted an economic analysis of the designation of critical habitat for the Rio Grande silvery minnow in the Rio Grande River Basin. The project includes a variety of issues related to water policy in the Rio Grande basin. U.S. Fish & Wildlife Service. 1994-1996. Conducted an economic analysis of the designation of critical habitat for the marbled murrelet in Oregon, Washington, and California. U.S. Fish & Wildlife Service. 1994-1996. VITA: W: ED. WHITELAW December 2005 Page 9 Exhibit L Page 17 (A of aa3 Estimated the economic effects of the designation of critical habitat to support the recovery of two endangered fish in the Upper Klamath Basin. U.S. Fish and Wildlife Service. 1993-1996. Prepared a response to the Draft Environmental Impact Statement for the System Operation Review prepared by the federal water-management agencies for the Columbia River. Confederated Tribes of the Umatilla Indian Reservation. 1995. Analyzed the role of the Columbia River in the economy of the Pacific Northwest, and described an economic framework for analyzing the economic consequences of alternatives for managing the Columbia River. Northwest Water Law and Policy. 1995. Prepared a paper that demonstrated a common analytical framework for economic analysis to integrate resource-conservation and economic-development strategies. Ford Foundation Rural Poverty and Resources Program. 1995. Analyzed issues related to integrating economics and resource-conservation strategies. Ford Foundation. 1995. Analyzed the role of the Columbia River in the economy of the Pacific Northwest. Sierra Club Legal Defense Fund. 1995. Analyzed the economic principles applied to state water regulation, describing how historic and current water-regulatory policies violate these principles, and illustrating the economic costs that accrue to citizens. Bullitt Foundation and Water Watch. 1994-1995. Analyzed the relationship between the regional economy and natural resources of the Southern Appalachians. U.S. Forest Service. 1994-1995. Participated in economic analysis of eastside ecosystem management project (EEMP) to ensure that the processes and the products of the EEMP internalize the externalities of resource-extraction industries (timber, grazing, mining, and hydropower) on federal lands in eastern Oregon, eastern Washington, and Idaho. W. Alton Jones Foundation. 1994-1995. Evaluated the economic components of old-growth forests associated with spotted owls. The analysis included calculations illustrating the potential impact on employment of forest- management alternatives that would jeopardize the region's quality of life. Private client. 1994. Analyzed the economic impacts of curtailing grazing on public lands that support endangered salmon in eastern Oregon, eastern Washington, and Idaho. Pacific Rivers Council. 1994. Estimated the economic impacts and values associated with the public acquisition of private land for use as a wildlife habitat. The economic analysis included an analysis of economic values, an analysis of economic impacts, and an analysis of policy impacts. Washington Department of Wildlife. 1993. Analyzed the Pacific Northwest timber situation in the context of the laws passed by Congress, the actions of executive-branch agencies, and the rulings of the federal judiciary. Wilderness Society. 1993. Estimated the economic impact associated with a proposal to restrict logging in the Sequoia National Forest and to establish the Sequoia National Monument. Private client. 1993. Developed a method for assessing the economic effects of designating critical-habitat for threatened or endangered species. The method incorporates a multi-sector, dynamic approach that emphasizes the analysis of effects on non-habitat-degrading activities, quality of life, and cost of living. U.S. Fish & Wildlife Service. 1993. VITA: W. ED. WHITELAW December 2005 Page 10 Exhibit 14 Page _L21__ of X23 Integrated the results from past studies into a summary of the economic importance of the salmonid fishery in the Pacific Northwest. Pacific Rivers Council. 1993. Assisted with the design and conducted an economic evaluation of the PRC's Restoration Initiatives, a series of demonstration projects designed to rehabilitate degraded watersheds. Pack Rivers Council. 1993. Described the theoretical issues underlying efforts by state commissions to introduce environmental externalities into the regulatory process, the procedural opportunities for doing so, and the practical lessons from case studies of six states. National Association of Regulatory Utility Commissioners. 1992-93. Analyzed the social implications of managing the federal forests in the Douglas-fir regions on longer rotations, including aesthetics, value added, tourism, jobs (quantity and type), changes in recreational opportunities, and economic and community sustainability. U.S. Forest Service. 1992. Developed the preliminary study design for using contingent-valuation methods to estimate the value of environmental externalities from electrical generation and transmission. Bonneville Power Administration. 1992. Developed and evaluated alternative approaches for ensuring that the activities of state and federal agencies are consistent with Oregon's Strategic Plan. Oregon Economic Development Department. 1992. Evaluated adjustments applied to the economic costs of alternative energy resources to account for environmental externalities in PGE's least cost planning effort. Portland General Electric. 1992. Providing the Tri-County Metropolitan Transportation District in Portland with quarterly forecasts of its payroll-tax revenues, payments from the State of Oregon, the region's economic condition, employment by industry, income by source, the price of diesel fuel, and the consumer price index for urban wage earners. Tri-County Metropolitan Transportation District. 1981-92. Estimated the costs (equipment, resources, personnel) of responding to an off-shore oil spill within 24 hours. Private client. 1991-92. Designed and conducted research on the impacts of land use on Oregon's transportation systems and costs. Oregon Department of Transportation. 1991-1992. Developed a strategic plan for allocating state resources to assist dislocated workers and timber- dependent communities, and a set of legislative recommendations for implementing the plan. Oregon State Legislative Joint Committee on Forest Products Policy. 1990. Described the forces and factors that underlie the controversy surrounding the. U.S. Forest Service's land-management program and outlined corrective actions. U.S. Forest Service. 1990. Analyzed the impact of the listing of the spotted owl as an endangered species for several public and private clients, including the City and School District of Eugene, Oregon, the Tri-County Metropolitan Transportation District in Portland, and electric utilities in the Eugene metropolitan area. 1990. Assessed the impacts of timber harvests with and without a change in forest management policy that would protect most or all of the remaining old-growth forest on federal lands in three timbersheds: Grays Harbor and Pacific Counties in Washington; Linn and Lane Counties in Oregon; and Siskiyou County in California. Wilderness Society. 1990. VITA: W. ED. WHITELAW December 2005 - Page 11 Exhibit N Page ► 7 8 of Assessed policies for redirecting growth from the Puget Sound region to other parts of the state, and policies for redirecting growth within the Puget Sound region. Puget Sound Council of Governments. 1990. .Described the economic and environmental impacts of the Exxon Valdez oil spill on Alaska's communities. 1989-90. Analyzed the potential contribution to local and regional economic development of a proposed mixed- use development in downtown Eugene and the appropriateness of state support for required utility relocation. City of Eugene. 1989. Developed a method for setting fees for over 500 services Lane County provides. Lane County Finance and Management Services. 1987-88. Analyzed proposed economic evaluation procedures for allocating unappropriated water in the Snake River Basin, especially adapting to state and local policy the benefit-cost methodologies designed for federal decision-making. Idaho Office of the Governor, Division of Financial Management. 1985-88. Supervised and directed analysis of the economic costs and benefits of the Northwest Power Planning Council's Columbia River Basin Fish and Wildlife Program. Northwest Power Planning Council. 1988. Analyzed the economic feasibility of relocating the section of Interstate-5 between the Marquam and Fremont bridges in Portland. City of Portland Department of Transportation. 1988. Conducted an economic feasibility analysis of a proposed publicly owned cable-television system. Springfield Utility Board. 1987-88. Analyzed the economic impact of a plant closure in Dallas, Oregon and advised government officials on immediate mitigative solutions and on long-term economic development strategies. Mid- Valley Council of Governments. 1988. Analyzed the development of independently-owned small electricity generators operating under PURPA contracts in Oregon. Oregon Public Utility Commission. 1988. Analyzed the rate of absorption of industrial space in the Eugene-Springfield area since 1976. Eugene/Springfield Metropolitan Partnership. 1987-88. Evaluated several land-use options for vacant property in the Glenwood district of Eugene, Oregon. City of Eugene. 1987-88. Analyzed the likely effects of reopening part of Willamette Street to automobile traffic. City of Eugene. 1987-88. Led a team of economists and planners studying the economic and demographic aspects of a comprehensive and integrated assessment of the socioeconomic impacts of a proposed nuclear waste repository to be sited at Hanford, Washington. Impact Assessment Inc. and the Washington Department of Ecology. 1987. Analyzed the socioeconomic characteristics of Atlanta, Idaho and the likely impacts of a proposed open-pit. gold-mine near Atlanta. Determined the dollar value of major costs and benefits. U.S. Forest Service. 1986-87. Analyzed the fiscal impacts of changes in timber-sale contracts including the fiscal and economic implications of alternative proposals for offering contractual relief to firms holding contracts for state-owned timber. Oregon Division of State Lands. 1987. VITA: W. ED. WHITELAW December 2005 Page 12 Exhibit Page /r7 of aa3 Analyzed the impact of alternative wholesale power rates on irrigated agriculture and developed efficient rate mechanisms to enhance the viability of this industry. Northwest Irrigation Utilities. 1986-87. Evaluated the feasibility of constructing an 18-hole regulation-size golf course on a 210-acre parcel of land, and conducted a market analysis and a financial plan for construction and operation. Lane County, Oregon. 1987. Prepared baseline employment and income sections for the socioeconomic element of an environmental impact statement for the proposed Chartam gold and silver mine. A joint venture with Western Energy Corporation; private client. 1986-87. Reviewed the adequacy and accuracy of sensitivity analysis and expected utility analysis of proposed nuclear-waste repositories. Evaluated methods, range of variation in outcomes of performance criteria, and utility values for pre- and post-closure scenarios developed by the U.S. Department of Energy. Washington State Department of Ecology. 1986-87. Estimated the potential economic consequences of a ban on further harvest of old-growth timber from national forests in Western Oregon and Washington, and evaluated policies for mitigating potential adverse consequences. National Wildlife Federation. 1986. Supervised and managed studies on property in Beaverton and Tigard, Oregon, and identified the current and future needs for residentially-related commercial land within the study areas. Cities of Beaverton and Tigard. 1986. Analyzed the economic effects of proposed changes in the existing Forest Practices Rules for the State of Washington. State of Washington, Department of Natural Resources. 1986. Performed a feasibility study for the creation of a 300-seat convention center at a beach resort in Lincoln City, Oregon. Private client. 1986. Evaluated and proposed zone changes for the City of Troutdale based on an analysis of market conditions, land characteristics, the goals of the comprehensive plan, and the land owners' plans for current and future use of the property. City of Troutdale. 1986. Analyzed the general economy, recommended strategies for improvement, and prepared a report summarizing the Forest Service's preliminary decision to retain its regional headquarters in Challis. North Custer Resource and Development Committee. 1985-86. Evaluated cost information on landfills for solid waste to develop a computer model to estimate the economic value of environmental costs that accompany the construction, operation, and decommissioning of a land-fill. Oregon Department of Environmental Quality. 1986. Analyzed factors relevant to the feasibility of a sewage treatment plan for the Keizer/Salem area. City of Keizer. 1985-86. Analyzed the service sector in Portland, determined the strengths and weaknesses of a business location relative to other cities, and identified a target list of service-sector industries that would find Portland attractive. Portland Development Commission. 1986. Provided an economic analysis associated with a proposed up-zoning of a site zoned for a neighborhood shopping center, based on consideration of existing land uses, existing zoning, and the current and expected needs of the community. Private client. 1985-86. Assisted in the development of a comprehensive land-use plan and implementing ordinances for the City of Keizer; Oregon, including analysis and forecasting for population, housing, employment, and economic development. City of Keizer. 1984-86. VITA: W. ED. WHITELAW December 2005 ~Pae 13 Exhibit f/ Page 18'0 of..-Z3 Served as staff to the Citizen's Rate Advisory Committee and prepared the Committee's final report, recommending goals and policies for economic development. Emerald People's Utility District. 1985-86. Advised the State of Idaho on management of the water resources of the Snake River Basin and the implementation of the Swan Falls Agreement. State of Idaho. 1985. Evaluated a mixed-use zone in the Whiteaker neighborhood. City of Eugene. 1984-85. Analyzed and forecasted the tourism market in Pacific Power and Light's service area. Private client. 1985. Performed a feasibility analysis on the expansion of an existing 18-hole golf course to 27 holes. Documented and projected the demand for golf, evaluated the City of Portland's ability to operate and finance additional debt, and analyzed its rates. City of Portland. 1985. Analyzed and forecasted the demand for column inches of advertising for a metropolitan newspaper, estimating the growth of new households and subscriptions. Private client. 1983-85. Analyzed three new sources of tax revenues: taxing the gross receipts of parking, wholesale fuel distributors, and automobile sales dealers. Tri-County Metropolitan Transportation District. 1985. Evaluated the methods used by the U.S. Department of Energy to rank potential sites for nuclear waste repositories. Washington State, Joint Legislative Committee on Science and Technology. 1985. Analyzed the public uses and private-market demand for county property. Multnomah County, Oregon. 1984-85. Analyzed the cost of administering land-use changes and developed a system for setting fees that equitably allocates costs to applicants. Washington County, Oregon. 1984-85. Designed and supervised the administration of a survey of fishermen on the Swan River and other drainages to determine the value they place on recreational fishing. Montana Department of Fish, Wildlife, and Parks. 1983-84. Evaluated the environmental effects from energy development projects, estimating the value of the external costs and benefits accompanying the development of coal-fired or combustion-turbine power plants. Bonneville Power Administration, U.S. Department of Energy. 1983-84. Analyzed the economic, legal, and political implications of annexing a large tract of industrially- zoned land to the city. City of Troutdale, Oregon. 1983.84. Reviewed and critically evaluated an economic analysis of lease rates for submerged and submersible land. Oregon Division of State Lands. 1983-84. Established rates for future sewer services under the county's long-range capital development plan. Multnomah County, Oregon. 1983. Developed a method for evaluating which type of fringe benefits package would be most cost-effective considering both the demographic characteristics of the workforce and the institutional structure of the employer. City of Portland, Oregon. 1983. Served as staff to the Citizen's Rate Advisory Committee; prepared the Committee's final report on a new rate structure for residential, commercial, and industrial customers; helped set goals for rate design; conducted a cost-of-service analysis. Emerald People's Utility District. 1983. VITA: W. ED. WHITELAW December 2005 Page 14 Exhibit H Page tAl of Evaluated a range of financing techniques to increase the conservation of energy among commercial users. City of Eugene. 1982-83. Formulated the evaluation program for a HUD-funded grant used to provide low-interest loans to business for energy conservation measures. Lane County Housing Authority and Community Services Agency. 1982-83. Prepared a financing plan for the Central County Service District; evaluated innovative financing mechanisms for funding the construction of a sewer system for East Multnomah County. Multnomah County. 1982-83. Designated an economic development strategy for the City of Forest Grove. City of Forest Grove. 1982-83. Reviewed the financial stability of one of an educational organization's member institutions, projected future revenues and expenditures, and made. recommendations about the organization's continued funding of the institution. Private client. 1983. Estimated the potential fiscal impacts of a proposed state lottery on the earnings of the Oregon Common School Fund. Oregon Division of State Lands. 1983. Conducted a cost-benefit analysis of management options for mitigating the threat of flooding in the Toutle/Cowlitz watershed, which was damaged by the eruptions of Mt. St. Helens. Cowlitz County Department of Community Development. 1982-83. Analyzed six prototypical neighborhoods to determine how the market would respond to new commercial zoning regulations. City of Seattle. 1982. Forecasted the demand for coal in the Pacific Northwest, California, and Pacific Rim Countries, concentrating on the demand for steam and coal by electric utilities throughout the Western United States. Private client. 1980-82. Analyzed the fiscal and economic impacts of alternative proposals for offering relief to firms holding contracts for state timber. Oregon Land Board. 1982. Advised the City Manager on the implications of regional energy policies and helped the city develop appropriate responses to the regional policies. City of Eugene. 1981-82. Analyzed the system of charges imposed on the City by the municipal utility for installing over-sized water mains to ensure adequate water service for fire protection. City of Eugene. 1981-82. Evaluated policies to protect the water quality of the Rathdrum Prairie Aquifer from septic effluent resulting from indiscriminate development. Panhandle Health District, Kootenai County, Idaho. 1981-82. Evaluated the past and current applications of economic theory to water resource management in the Columbia River Basin, assessed the effects of such policies on anadromous fish populations. Bonneville Power Administration, Northwest Resources Information Center. 1981- 82. Developed socioeconomic criteria to measure direct and indirect benefits of hydroelectric projects. Montana Department of Natural Resources and Conservation. 1981-82. Developed recommendations for the State of Montana concerning its use of investment funds for in-state economic development. Northern Rockies Action Group. 1981-82. Predicted the demand for housing in downtown Portland using sources of housing statistics and a statewide econometric model. Portland Development Commission. 1981-82. VITA: W. ED. WHITELAW December 2005 Page 15 Exhibit 14 Page ( a of 2a. , Developed a reliable model for predicting future trends in 18 non-wood manufacturing industries. Lane County. 1981. Identified and evaluated an exhaustive list of methodologies for assessing the environmental costs and benefits for acquisitions. U.S. Department of Energy, Bonneville Power Administration. 1981. Assessed changes in housing demand and supply for the area and simulated future changes for the period 1980-2000. West University Neighborhood of Eugene. 1981. Researched and reported on the locational criteria of high-technology firms in the Eugene-Springfield area. City of Eugene. 1981. Identified the transportation problems in the Vancouver, Washington-Portland, Oregon corridor, isolated their causes, recommended solutions and the institutional and financial arrangements for implementing the solutions. Bi-State Task Force (Cities of Portland and Vancouver, Counties of Multnomah and Clark, Metropolitan Service District, Oregon Department of Transportation, Washington Department of Transportation) and the U.S. Department of Transportation. 1980-81. Wrote the economic element of a draft environmental impact statement, which included estimates of the economic and land-use impacts of a proposed rapid transit system in the western Portland metropolitan area. Metropolitan Service District, Portland, Oregon. 1981. Described the fiscal impacts of proposed urban development on the county and ten special districts, and analyzed the financing mechanisms available to mitigate those impacts. Washington County, Oregon. 1981. Prepared a land-use, fiscal-impact, and feasibility analysis of a proposed light-rail system in Washington County, Oregon (in the Portland SMSA). Washington County, Metropolitan Service District (Portland), and U.S. Department of Transportation. 1980. Developed a five-year fiscal action plan for Multnomah County, Oregon (in the Portland SMSA), including specifying and simulating the major alternative approaches available to the County for facing its fiscal problems. Multnomah County. 1980. Specified and evaluated alternative programs for encouraging mixed-use districts. City of Eugene. 1980. Assisted in devising and evaluating alternative policies of airshed management that accommodate anticipated future economic growth. Portland Interstate Air Quality Maintenance Area. 1979- 80. Analyzed the impacts of Montana's CETA program on its participants, developed models of the factors influencing the program's effectiveness, and trained the program's administrators in interpreting the models to improve the program. Montana Governor's Employment and Training Council,-with a grant from the U.S. Department of Labor. 1979-80. Prepared a grant application for a transit mall in Eugene under the Urban Initiatives Program of the U.S. Urban Mass Transit Administration. Lane Transit District, City of Eugene, Oregon. 1980. Identified and evaluated the locational criteria of the high technology firms based in Santa Clara County, California. Private client. 1980. Forecasted and evaluated the likely economic consequences of alternative air-quality strategies in the Portland interstate Air Quality Maintenance Area. City of Portland, U.S. Environmental Protection Agency. 1979-80. VITA: W. ED. WHITELAW December 2005 Page 16 Exhibit a Page of Estimated the likely increases in storm water run-off that would result from future urbanization and changes in land use. City of Eugene. Described and evaluated alternative programs for promoting downtown housing in a sample of four U.S. cities. City of Eugene, Oregon. 1980. Prepared a work program for a market analysis of Blair Neighborhood's commercial revitalization. City of Eugene, Oregon. 1980. Defined the objectives of the 19 Statewide Planning Goals, identified inconsistencies among them, and described a methodology for specifying and quantifying program objectives in a way which would allow them to be evaluated. Oregon Land Conservation and Development Commission. 1979-80. Described and evaluated alternative growth-management programs in a sample of nine U.S. cities. City of Eugene, Oregon. 1979-80. Prepared a cost-revenue analysis of the acquisition of land surrounding Mahlon Sweet Airport for the purpose of minimizing land-use conflicts with the airport. Mahlon Sweet Airport and the City of Eugene, Oregon. 1979-80. Developed a short- and long-run evaluative framework for the Oregon Coastal Management Program. Department of Land Conservation and Development. 1979. Analyzed the potential for a large West-Coast construction firm to secure construction-management contracts for public-sector construction projects, and developed a marketing strategy for the firm. 1979. Analyzed the feasibility of a proposed major commercial-industrial park in Eugene. Private client. 1979. Surveyed and inventoried the commercial and recreational boat launching and moorage facilities in Oregon's estuaries,'and forecasts of the future demand for such facilities, based on models of commercial and recreational fishing effort and boat ownership. Oregon Department of Land Conservation and Development. 1979. Analyzed the market for rental and multifamily housing in the central area of Eugene. Eugene Planning Department. 1978-79. Developed forecasting models of demand for mineral aggregates for Oregon and for the market areas centered in Portland, Lincoln County, Medford and Ashland, Umatilla County (Pendleton, Umatilla, and Boardman), Deschutes County (Bend), and the Willamette National Forest. Oregon Department of Geology and Mineral Industries and the U.S. Army Corps of Engineers. 1978-79. Analyzed Eugene's economy, with special emphasis on developing an economic management process for implementing the City's economic policies relating to industrial and commercial activity, land use, and the unemployed and economically disadvantaged. City of Eugene, Oregon. 1978. Analyzed housing markets, matching and forecasting housing prices and household incomes in the Eugene-Springfield Metropolitan Area. Private client. 1978. Prepared a program for revitalizing the downtowns of Spooner and Medford, Wisconsin, as part of the American Institute of Architects' Regional/Urban Design Assistance Team. The Wisconsin Northwest Regional Planning Commission and the Upper Great Lakes. Regional Commission. 1978. VITA: W. ED. WHITELAW December 2005 Page 17 Exhibit H Page l 8 4 of Q.23 Estimated the effects of the City of Beaverton's building moratorium on homebuilders and households in and around Beaverton, Oregon. The Oregon State Homebuilders Association and the Portland Metropolitan Homebuilders Association. 1978. Prepared the economic elements for the comprehensive land-use plans of Lincoln County, Newport, Lincoln City, Toledo, Waldport, Siletz, and Depoe Bay. Lincoln County Planning Department, with a grant from the Oregon Department of Land Conservation and Development. 1975. Described the nature and location of unemployment in Lane County. Lane Council of Governments. 1978. Analyzed Eugene's housing markets by type, tenure, and location; and analyzed the underlying supply and demand conditions for residential land in Eugene, Springfield, and the balance of the Metropolitan Area. City of Eugene. 1978. Estimated the effects of Lane County's land-use and other regulations on the supply and costs of land and housing in Lane County and developed a system for monitoring, evaluating, and controlling these effects. The Lane County Planning Division. 1977-78. Evaluated the effectiveness with which the West Eugene Industrial Area could expect to accommodate future industrial activity, and recommended methods for revitalizing the area and for establishing a vehicle for economic development. City of Eugene. 1977-78. Estimated the effect of Eugene's Urban Service Boundary; developed a system for monitoring, evaluating and managing Eugene's growth. Eugene Planning Department. 1976-78. Analyzed the single-family and multiple-family housing markets in Eugene, including an estimation of current and forecasts of the future housing by type, tenure, and location in Eugene, and analyzed the underlying supply and demand conditions for residential land in Eugene, Springfield, and the balance of the Metropolitan Area. City of Eugene, Oregon. 1977. Prepared a work program and evaluation of the Permit System Improvement Projects in Portland, Salem, Eugene, and the State of Oregon. Oregon Executive Department, Intergovernmental grant from the U.S. Department of Housing and Urban Development. 1977. Prepared the economic element for Marion County's Comprehensive Plan. Marion County, Planning Department, with a grant from the Oregon Department of Land Conservation and Development. 1976-77. Evaluated the performance of the employment and training programs for adults in Jackson and Josephine Counties, Oregon. Jackson-Josephine Job Council with a grant under Title I of the comprehensive Employment and Training Act. 1977. Developed a process to increase the efficiency of the local labor markets in Gilliam, Grant, Morrow, Umatilla, and Wheeler Counties, and evaluated the performance of the District 12 COG's Employment and Training Program. East Central Oregon Association of Counties, the Oregon Employment Division, and the U.S. Department of Labor. 1977. Estimated the current and forecasted future employment in Eugene, Springfield, and the balance of the Metropolitan Area, by sector and location, and analyzed the underlying supply and demand conditions for commercial and industrial land in Eugene. City of Eugene, Oregon. 1977. Feasibility analysis of the rehabilitation of the old St. Charles Hospital, Bend, Oregon. Economic Development Administration, U.S. Department of Commerce (Project No. 08-06-01776). 1976-77. VITA: W. ED. WHITELAW December 2005 Page 18 Exhibit 14 Page -L Z5 of ~2 Evaluated the performance of the Greater Portland Convention Association and the Portland Chamber of Commerce, Convention Bureau, Portland, Oregon. Greater Portland Convention Association. 1976-77. Analyzed the impact of zoning on land use in Portland and forecasted the demand and supply conditions of industrial land in Portland, Oregon. Portland Bureau of Planning; Economic Development Association, U.S. Department of Commerce. 1976. Prepared work programs for a study of the economies of Linn and Benton Counties and of Lincoln County. Planning Departments of Linn, Benton, and Lincoln Counties, Oregon. 1976. Preliminary feasibility analysis of a residential, office, and retail development in Eugene. Private client. 1976. Evaluated and reorganized Ashland's Comprehensive Plan; developed evaluative criteria for land- use planning in Ashland, Oregon. City of Ashland. 1976. Feasibility analysis of a 1200-room convention center in Downtown Portland. Convention Centers, Inc., Portland, Oregon. 1975-76. Evaluated the performance of the Youth Work Experience Program in Jackson and Josephine Counties, Oregon. Jackson-Josephine Job Council, Medford, Oregon, with a grant under Title I of the Comprehensive Employment and Training Act. 1975-76. Evaluated proposed comprehensive plans for the Camp Sherman Area and for Culver City in Jefferson County, Oregon. Planning Department of Jefferson County. 1976. Analyzed economic impact of a proposed K-Mart development on the Salem business community, Salem, Oregon. Salem City Council. 1976. Economic impact assessment: geological hazards; fish and wildlife; beaches and dunes; agriculture, forest, urban; historical and archaeological; continental shelf resources; estuary and wetland resources; visual values; freshwater resources, shoreland resources; general policies. Oregon Coastal Conservation and Development Commission. 1975. EXPERT TESTIMONY IN TRIAL Provided testimony and analyzed the economic damage incurred by citizens of the State of Yap, in the Federated States of Micronesia, from a ship that grounded on the coral reef and spilled oil into the mangrove-reef ecosystem. San Francisco, California : Davis Wright Tremaine LLP. 2003-2005. Provided testimony and calculated lost wages and benefits in a wrongful discharge claim between a former employee and a hardwood-trading firm. Portland, Oregon: Dunn Carney Allen Higgins Tongue. 2004. Provided testimony in a NAFTA arbitration matter in which the claimant, Canada-based Methanex Corporation, sought damages against the United States arising from the State of California's ban on the use of MTBE as a gasoline oxygenate. ECO examined the claimant's expert testimony, and also conducted a separate analysis of the costs and benefits of California's ban on MTBE. Washington, D.C.: U.S. Department of State. 2003-2004. Provided testimony and evaluated the relevant product and geography for hospital services in Oregon for claims of monopolistic behavior. ECO also reviewed plaintiffs' materials relating to economic damage claims. Portland, Oregon: Schwabe, Williamson & Wyatt. 2002-2003. Provided telephone testimony and evaluated the U.S. market for suspension systems for bicycles. Portland, Oregon: Schwabe, Williamson & Wyatt. 2002-2003. VITA: W. ED. WHITELAW December 2005 -P_ae Exhibit 14 Page 1 g(o of ;;LA Provided economic analysis and testimony for the State of Oregon. Analyzed the economic damages to the Oregon coast resulting from an abandoned section of the New Carissa shipwreck. The analysis included damages incurred through risk to human life, increased safety and rescue operation -costs, and diminution to the public valuation of the coastline. Salem, Oregon: Oregon Department of Justice; Eugene, Oregon: Jaqua and Wheatley. 2002. Provided testimony and conducted an analysis of the defendant's claims of damages and critiqued these claims in testimony at trial. The dispute concerned a rental agreement for city-owned commercial property. Eugene, Oregon: Harrang, Long, Gary, Rudnick. 2002. Provided testimony and evaluated the economic impacts to municipalities in Alaska of the oil spilled from the Exxon Valdez. Portland, Oregon: Stoll, Stoll, Berne, Lokting, Shlachter. 2000-2002. Provided economic analysis and testimony for the South Tahoe Public Utility District. Compared the costs and benefits associated with adding MTBE, ethanol, or alkylates to conventional gasoline in Northern California. Sacramento, California: Miller, Sher & Sawyer. 1999-2002. Researched the literature, evaluated the economic basis for antitrust claims in a franchise setting, and provided expert testimony to an arbitration panel evaluating antitrust and tying claims related to the cedar home market. Seattle, Washington: Cutler & Nylander. 2000-2001. Provided economic analysis and testimony regarding the estimated impacts suffered by an oyster grower as a result of the grounding of the New Carissa. San Francisco, California: Davis Wright Tremaine. 2000-2001. Provided economic analysis and testimony regarding the estimated economic damages to an irrigator resulting from sewage pollution in the South Umpqua River. Roseburg, Oregon: Dole, Coalwell, Clark, Mountainspring & Mornarich. 1998. Provided economic analysis and testimony regarding the hiring and pay for head coaches at Oregon State University and estimated economic loss from gender-based hiring. Eugene, Oregon: Walters, Romm, Chanti, & Dickens. 1997. Provided economic analysis and testimony regarding the lost profits from a patent infringement of an orbital sander by conducting surveys and econometric analysis. Portland, Oregon: Kolisch, Hartwell, Dickinson & McCormack. 1995-1997. Provided economic analysis and testimony regarding the estimated uncompensated expenses and lost profits in a contract dispute between a manufacturer of video lottery terminals and the Oregon State Lottery. Portland, Oregon: Davis, Wright, Tremaine. 1996. Provided economic analysis and testimony regarding the catalytic converter and recycling industries and estimated damages for the defendant. Eugene, Oregon: Luvaas, Cobb, Richards & Fraser. 1995-1996. Presented economic testimony regarding antitrust liability and damages related to the wholesale markets for televisions. Portland, Oregon: Schwabe, Williamson, Wyatt. 1995. Testified regarding damages to a rose nursery from actions by a natural-gas utility. Eugene, Oregon: Luvaas, Cobb, Richards, and Fraser. 1995. Provided expert testimony regarding economic damages due to antitrust activity in the retail and wholesale markets for petroleum products. Anchorage, Alaska: Condon, Partnow & Sharrock. 1994-1995. Provided economic analysis of and testimony on issues relating to relevant product and geography, the extent of power in the market for recreation equipment, and damages. Boise, Idaho: Clemons, Cosho and Humphrey. 1988-1.992. VITA: W. ED. WHITELAW December 2005 Page 20 Exhibit Page l of Provided testimony regarding whether a property purchase lease-back partnership was organized solely to generate reduced taxes, rather than economic profit for the partners. Oregon Department of Justice. 1991. Provided economic analysis and testimony regarding price discrimination and tied houses in the alcoholic beverage industry. Portland, Oregon: Schwabe, Williamson, Wyatt, Moore, and Roberts. 1987-1988. Provided analysis and testimony on the value of eight properties of real estate. Portland, Oregon: Hanna, Urbrikeit, Jensen, Goyak, and O'Connell. 1987-1988. Provided analysis and testimony regarding the damages associated with alleged patent infringement. Portland, Oregon: Schwabe, Williamson, Wyatt, Moore, and Roberts. 1987. Provided regulatory policy analysis and testimony regarding irrigation rate discounts, and the adverse economic impact of higher electrical rates. Boise, Idaho: Lindsay, Hart, Neil, and Weigler. 1987. Provided analysis and testimony regarding the economy of Lincoln County for the years 1970-1986, with special emphasis on the variables of non-agricultural wage and salary employment, covered payrolls, restaurant and hotel payrolls, and total assessed true cash value. Lincoln City, Oregon: Lovejoy and Green. 1987. Provided economic analysis and testimony regarding the economy of Oregon and the auto industry in the early 1980s. Eugene, Oregon: Swanson and Walters. 1987. Provided economic analysis and testimony for a private utility regarding economic principles for efficient pricing of electricity sold to regulated utilities by independent producers. Boise, Idaho: Runft, Leroy, Stecher, Coffin, and Mathews. 1985-1986. Provided economic analysis and testimony regarding a newspaper's alleged violation of antitrust laws with respect to the market for local printed advertising. Portland, Oregon: Gordon, Thomas, Honeywell, Malanca, Peterson, and Daheim. 1985. Testified in a franchise dispute for Richard Fredricks, owner of Subaru in Multnomah County Circuit Court: State of Oregon. 1983. Also testified in personal-injury and wrongful-death cases. OTHER EXPERT ANALYSIS FOR LITIGATION Analyzed the fuel ethanol market to determine if refiners could have used ethanol to meet federal reformulated gasoline mandates instead of MTBE during the 1990s. 2005-ongoing. Analyzed the market for diagnostic-imaging services in the Portland-metro area. Portland, Oregon: Haglund, Kirtley, Kelley & Horngren & Jones. 2005-ongoing. Analyzed the potential violation of trade secrets. Portland, Oregon: Schwabe, Williamson & Wyatt. 2005-ongoing. Addressed the economic issues regarding the plaintiffs' challenge to the City's franchise-fee agreement to use the City-owned right-of-way. Portland, Oregon: City of Portland, City Attorney's office. 2005-ongoing. Calculated the economic damages to a seafood-related business as a result of a license dispute with the State of Washington. Tacoma, Washington: Gordon Thomas, Honeywell Malanca Peterson & Daheim, 2004-ongoing. VITA: W. ED. WHITELAW December 2005 , _Faee_2_1 Exhibit A Page 1 of Provided a declaration in support of the fee that the City charges to access the municipal right-of- way. Portland, Oregon: Office of the City Attorney. 2004-ongoing. For the Plaintiffs, ECO determined that using statistical analysis to identify members of a proposed class of plaintiffs and the amount of the aggregate class damages was feasible. The matter involved the failure of an insurance company to compensate Washington State homeowner's insurance policyholders for the actual cash value of the sales tax paid on lost property. Seattle, Washington: Stritmatter Kessler Whelan Withey Coluccio. 2005. For the defendants, ECO reviewed and critiqued the opposing expert's analysis in a wrongful discharge case. Portland, Oregon: Mersereau & Shannon LLP. 2004-2005. Studied the economic performance of the ski industry in the Tahoe area and the market conditions that affect this sector of the region's economy. ECO's analysis also addressed the financial and economic factors associated with avoiding and complying with regional water quality regulations and County permitting processes. California: California Office of the Attorney General. 2003-2005. Reviewed economic analyses, prepared by the U.S. Dept. of Agriculture and the Environmental Protection Agency, of the potential economic impacts of court-ordered restrictions on the use of pesticides near salmon-bearing streams in the Pack Northwest. Seattle, Washington: Earthjustice. 2004. Provided a declaration of opinion concerning adequacy of financial information. Seattle, Washington: Bricklin Newman Dold, LLP. 2004. Reviewed economic issues specific to the Telecommunications Act of 1996 regarding the fees that Huntsville charges Level 3 Communications to use Huntsville's right-of-way. ECO expressed an opinion on these issues. Huntsville, Alabama: Fees & Burgess, P.C. 2003. Analyzed the economic damage to homeowners in Idaho due to hazardous waste pollution from mining and mineral processing activities. ECO used hedonic modeling to determine the impact on residential housing values due to proximity to known concentrations of hazardous materials. ECO estimated both the capitalized value of future damages, as well as the total of past damages. Seattle, Washington: Hagens & Berman. 2002-2004. Studied allegations of price-fixing in markets for agricultural commodities. Portland, Oregon: Tonkon Torp. 1997-2004. Analyzed the royalty rate that the holders of a process patent could expect to receive in a licensing arrangement. As part of the analysis, ECO examined a number of factors that would have influenced the final royalty rate in a hypothetical licensing agreement between. the two parties. The established success of the process patent in the marketplace, the competitive relationship between the parties, and the. customary rates for patents in this field were among the factors considered. Portland, Oregon: Schwabe, Williamson & Wyatt. 2002-2004. Evaluated and expressed an opinion regarding right-of-way fees that Qwest challenged in litigation in reference to certain provisions of the Telecommunications Act of 1996. Washington, D.C.: Miller & Van Eaton. 2002-2004. Provided economic analysis regarding the economic impacts of a proposed aggregate mining operation on surrounding farms. Dayton, Oregon: Slegers, Inc. 2004. Studied economic aspects of defining a hospital's service area as it applied to Oregon's Certificate of need requirement for new or relocated hospitals. Private client. 2003. Analyzed the fees the City of Santee charged Level 3 Communications to access the City-owned right-of-way. San Diego, California: Best Best & Krieger. 2003. VITA: W. ED. WHITELAW December 2005 Page 22 Exhibit Page 1 of Studied the economic aspects of defining a hospital's service area as it applied to Oregon's Certificate of Need requirement for new or relocated hospitals. Private client. 2003 Evaluated the pricing structure that local governments charge providers of cable modem services for using the local right-of-way. In particular, ECO addressed the economic relevance of revenue- based fees in a congested right-of-way. Washington, D.C.: Miller & Van Eaton. 2002-2003. Analyzed the statistical differences between groups of employment-related injury settlements. The key issue was whether or not the separate groups received different treatment in the settlement process. Seattle, Washington: Hagens & Berman. 2002-2004. Studies the market for home intravenous care in preparation for a possible antitrust lawsuit. Private client. 2002. Provided economic consultation on the market for health-care services in Southern Oregon. Portland, Oregon: Schwabe, Williamson, & Wyatt. 2000-2002. Provided economic analysis regarding the economic value of municipal rights-of-way (row) and use of the row by telecommunications companies. Portland, Oregon: City of Portland Attorney's Office. 2001-2002. Provided economic analysis of a patent-infringement claim regarding suspension systems for bicycles. Portland, Oregon: Schwabe, Williamson, & Wyatt. 2001-2002 Evaluated the relevant product and relevant geography for hospital services in Southern Oregon. Analysis of economic damage claims. Portland, Oregon: Schwabe, Williamson, & Wyatt. 2000- 2002. Provided an economic analysis of the U.S. market for cookie stamps. Portland, Oregon: Schwabe, Williamson, & Wyatt. 2001. Estimated the economic impacts of restricting a forest clearcut in the Carbon River Corridor Entrance to Mount Rainier National Park. Seattle, Washington: Washington Forest Law Center. 2000-2001. Estimated the costs of a potential fuel spill at the mouth of the Columbia River. Potential costs included direct costs (e.g. ship damage, lost fuel, human injury and death, and property), and indirect costs (damage to species, habitat, and industries, including tourism, recreation, and river transportation). Portland, Oregon: Haglund, Kirtley, Kelley & Horngren. 2000-2001. Estimated the appropriate sample size required to confirm key characteristics about CEO's phone pole population. Bend, Oregon: Karnopp, Petersen, Noteboom, Hansen, Arnett & Sayeg. 2000. Evaluated the likely effects of certain labor practices on the working conditions of workers in the reforestation industry. Eugene, Oregon: Oregon Law Center. 1999-2001. Estimating the socioeconomic impacts of a proposed petroleum-products pipeline across central Texas. Private client. Austin, Texas: George & Donaldson. 1999-2001. Estimated the economic impacts of unauthorized construction activity that damaged a pueblo in New Mexico. Private client. 1999-2000. Studied the economic status of bands of Native American in northern Michigan. Michigan Attorney General. 1999. Determined the damages caused by two competitors who infringed on a patent for an invention used in the alarm and security industry. Private client. Portland, Oregon: Stoel Rives LLP. 1999. VITA: W. ED. WHITELAW December 2005 Page 23 ' Exhibit Page 196 of a;x Evaluated the economic impacts of the proposed Cross-Cascade Pipeline on businesses, grain producers, and consumers. Portland, Oregon: Schwabe, Williamson & Wyatt. 1999. Studied the economic status of bands of Native American in northern Michigan. Lansing, Michigan: State of Michigan, Department of Natural Resources. 1999. Estimated the damages in an employment discrimination suit. Portland, Oregon: Gordon Thomas Honeywell. 1998. Studied factors associated with teen smoking, including price elasticities, research and development expenditures by tobacco companies, and profits generated from cigarette consumption by underaged smokers. Hagens & Berman (States of Washington and Arizona), Golub Silver (State of Connecticut). 1997-1998. Calculated damages to commercial fishermen, seafood wholesalers/processors, hotels, and on small businesses associated with a 1990 oil spill off Huntington Beach, California. Gretchen Nelson, Los Angeles, California. 1997- 2000 An analysis of economic loss suffered as a result of injury. Jamin, Ebell, Schmitt, & Mason. 1997- 1998. Evaluated unfair trade practices in the market for computer software. Eugene, Oregon: Butler, Burgott, Leslie & Stine. 1997-1998. Estimated economic damages for a class action law suit against an insurance company which retroactively denied coverage to accident victims many months after they had received costly treatment. Seattle, Washington: Hagens & Berman. 1996-1997. Estimated economic damages resulting from a breach of the 1991 Manufacturing Agreement and misappropriation of intellectual property, trade secrets and manufacturing tooling of vsi crusher parts. Portland, Oregon: Schwabe, Williamson & Wyatt. 1995-1997. Analyzed the economic well-being of seven bands of Chippewa in Minnesota and Wisconsin. Minnesota Attorney Generars Office and the Department of Natural Resources. 1995-1997. Analyzed lost profits resulting from the improper implementation of a new area code by conducting a telephone survey of affected firms. Seattle, Washington: Hagens and Berman. 1996. Developed and administered a survey of auto parts salespersons to calculate the value of lost wages. Eugene, Oregon: Hoag, Garrettson, Goldberg & Fenrich. 1995-1997. Analyzed the relevant product and geographic markets for video superstores. Portland, Oregon: Davis, Wright, Tremaine. 1995-1996. Analyzed the economic costs and benefits of differential tax treatment between in-state and out-of- state insurance companies by the State of Oregon. Eugene, Oregon: Harrang Long. 1995. Analyzed emissions of CO2, mercury, fine particles, and other air contaminants associated with electricity generation. Chicago, Illinois. Environmental Law and Policy Center. 1995. Testified regarding the relevant geographic market for retail electronics for the 1970s and 1980s in Oregon. Portland, Oregon: Tonkon, Torp. 1995. . Described the relevant product market for lumber mill equipment in the U.S. and Canada, Portland, Oregon. Kolisch, Hartwell, Dickinson, McCormack and Heuser. 1994-95. Addressed the severe shortcomings of the economic analysis in the Spotted Owl Final Supplemental Environmental Impact Statement, the failure to address those shortcomings, and the economic VITA: W. ED. WHITELAW December 2005 _Paee_2A Exhibit -H Page t9/ of consequences of adopting a forest management plan based on an incomplete and inaccurate economic analysis. Seattle, Washington: Sierra Club Legal Defense Fund. 1994. Provided expert analysis on class certification and economic damages for area businesses and property owners affected by airborne toxic pollutants. Seattle, Washington: Riddell, Williams, Bullitt & Walkinshaw. 1993-1995. Analyzed the economic analysis in the Spotted Owl Final Supplemental Environmental Impact Statement. Seattle, Washington. 1994. Provided expert analysis regarding the value of damages to municipalities suffered as a result of the Exxon Valdez oil spill and cleanup. Kodiak, Alaska: Jamin, Ebell, Bolger & Gentry. 1990-94. . Provided expert testimony on class certification and conducted economic analyses for area businesses and property owners affected by a toxic spill in the Sacramento River. San Francisco, California: Lieff, Cabraser and Heimann. 1992-94. Analyzed impacts and damages for the various classes of plaintiffs' (e.g., fishermen and municipalities) as a result of the Exxon Valdez oil spill in Alaska. 1990-1995. Analyzed economic impacts of a chemical spill in Lake Superior on municipal government, City of Superior. 1993 Provided expert analysis related to class certification and damages to property values from airport noise. Seattle, Washington: Hagens and Berman. 1992-1993. Constructed an hedonic price model of the market for vacant commercial and industrial land in King County, Washington. Seattle, Washington: Betts, Patterson & Mines. 1992-93. Analyzed the market for group dental insurance in Oregon and evaluated claims of antitrust liabilities and damages. Portland, Oregon: Schwabe Williamson. 1992-93. Provided economic analysis of issues relating to relevant product market and relevant geographic market for neonatal-prenatal medicine. Eugene, Oregon: Calkins and Calkins. 1989-92. Assessed the extent to which the Bureau of Land Management failed to satisfy the economic requirements for an exemption to the Endangered Species Act in its proposal to log timber in habitat for the northern spotted owl. Portland, Oregon: U.S. Department of Interior, Fish and Wildlife Service. 1991-92. Determined the extent to which the behavior of an association of river pilots operating under the provisions of an association of a state regulatory authority constituted an antitrust violation. Portland, Oregon: Haglund and Kirtley. 1991-92. Evaluated and recommended actions for improving the analysis underlying Washington's system for determining child-support payments. Seattle, Washington: Betts, Patterson & Mines. 1991. Provided expert analysis and testimony regarding the economic impacts of certain injunctions on forest service timber sales in Washington, Oregon and northern California. Seattle, Washington: Sierra Club Legal Defense Fund. 1991. Assessed the feasibility of a public agency's plan to condemn property and construct a hotel, thereby displacing planned private-sector development of a smaller hotel on the same site. Portland, Oregon: Pfister and Tripp. 1991. Valued damages resulting from patent infringement by a competitor of a manufacturer of agricultural equipment who also made and sold- similar, non-infringing equipment. Portland, Oregon: Schwabe, Williamson and Wyatt. 1991. VITA: W. ED. WHITELAW December 2005 Page 25 Exhibit 4 Analyzed the demand for recreational fishing in the Flathead Lake region in a dispute over the state's authority to regulate fish and game on an Indian reservation. Attorney General's Office, State of Montana. 1990. Provided economic analysis, with specific emphasis on the issues of relevant market, barriers to entry, and competition, of the market for maraschino cherries. Portland, Oregon: Tonkon, Torp, Galen, Marmaduke & Booth. 1990. Described the importance of the apple industry to Chelan County, Washington and estimated the likelihood that randomly-selected jurors will have a direct or indirect financial interest in the apple industry. Hoquiam, Washington: Stritmatter, Kessler and McCauley. 1989. Provided economic analysis of the savings proposed-by a private corporation to the Defense Logistics Agency. Boise, Idaho: Runft, Leroy, Coffin, and Mathews. 1985-1988. Provided economic analysis regarding claims that a natural gas pipeline corporation violated antitrust laws in its interpretation and application of pipeline deregulation rules of the Federal Energy Regulatory Commission. Salt Lake City, Utah: Watkiss & Campbell. 1988. Provided economic analysis regarding a claim by a roller-bearing manufacturer that a rock-crusher manufacturer violated antitrust laws by attempting to restrict after market sales of replacement roller bearings to crusher users. Pittsburgh, Pennsylvania: Springer, Bush, & Perry. 1988. Provided economic analysis and testimony regarding a claim that the sale of television rights for professional bowling violated antitrust laws. Seattle, Washington: Hansen, Robinett & Krider. 1988. Analyzed the economic impacts of a hostile takeover of Farmers Insurance by the British American Tobacco Company. Portland, Oregon: Lindsay, Hart, Neil, & Weigler. 1988. Provided economic analysis for a school board during labor negotiations. Eugene, Oregon: 4J School District. 1987. Reviewed plaintiffs appraisal of damages for appropriateness of method and amount for dependents' (countersuit) damages incurred resulting from breach of contract. Bend, Oregon: McCord & Haslinger, 1986. Analyzed the present discounted value of damages incurred by a private corporation under an alleged restrictive settlement. Eugene, Oregon: Perrin, Gartland and Doyle. 1984-86. Provided economic analysis regarding a claim that a manufacturer of Mexican coffee liqueurs exercised monopoly power to exclude or restrict competition in the market. Schwabe, Williamson, Wyatt, Moore & Roberts. 1985-86. Provided economic analysis of the present discounted value of alleged damages sustained by Chrysler Corporation resulting from the action of two franchises. Seattle, Washington: Betts, Patterson, and Mines. 1986. Assisted Multnomah County in their labor arbitration with corrections officers. 1985-86. Provided economic analysis regarding an alleged restraint of trade for the sale and transportation of fly ash. Stoel, Rives, Boley, Fraser & Wyse. 1985-86. Provided economic analysis regarding real estate markets and financial conditions in Ada County and the City of Boise. Boise, Idaho: Clemons, Cosho, and Humphrey. 1985.. VITA: W. ED. WHITELAW December 2005 Page 26 Exhibit Page 3 of ~a 3 Assessed the impact of the City of Ketchum's annexation of the Northwood Subdivision on the Ketchum Springs Water Supply Company's revenues, rate base, capital structure, customers, and stockholders. Private client. 1984-85. Provided economic analysis regarding a claim that a video-game manufacturer violated antitrust laws with respect to the distributorship of video games. Seattle, Washington: Betts, Patterson, and Mines. 1985. Analyzed relevant geographic markets for housing in Boise and Ada County. Private client. 1984-85 Analyzed the disparities between procedures for determining taxable value for residential properties and those for commercial and industrial properties. Developed expert testimony on the reliability and validity of statistical techniques used in calculating ratios of assessed to market values. Montana Department of Revenue. 1983-84. Provided economic analysis regarding a claim that the members of a medical clinic violated antitrust laws by using the peer-review process to restrict a competing surgeon's hospital privileges. Astoria, Oregon: Tonkon, Torp, Galen, Marmaduke, and Booth. 1984. Provided economic analysis and calculation of damages regarding a newspaper's alleged violation of antitrust laws with respect to the market for local printed advertising. Boise, Idaho: Risch, Goss, Insinger, and Sallady. 1984. Provided a condemnation appraisal for the Oregon Department of Justice in Umatilla County Circuit Court. State of Oregon. 1984. Provided analysis and testimony regarding damages associated with a contract dispute from the loss of a lease and additional travel costs when defendant failed to vacate a space as promised. King County, Washington: Betts, Patterson, and Mines. 1984. Provided business valuation for John McInnis and Rhodes Big O Tires, Inc. Mountain Home, Idaho: Hall and Friendly and the C.P.A. firm McMurtrey and Company. 1984. Analyzed the disparities between procedures for determining taxable value for residential properties and those of commercial properties. Montana Department of Revenue. 1982-83. Provided business valuation representing Robert Hammons & Associates in U.S. District Court, Idaho: Stephen, Slavin, Kvanvig, and Stephan. 1983. OTHER EXPERT TESTIMONY Testified at a hearing and provided written testimony describing the economic consequences of increasing market concentration in the market for acute-care hospital services. Springfield, Oregon: Thorp Purdy Jewett Urness & Wilkinson, P.C. 2005-ongoing. Testified at a hearing before Polk County's (Oregon) Board of Commissioners regarding the economic benefits of protecting the quality of a community's water resources. Hillsboro, Oregon: David Noren, Attorney at Law. 2004-ongoing. Testified at a hearing before Oregon's Attorney General regarding the proposed merger of McKenzie- Willamette Hospital and Triad Corporation. Springfield, Oregon: Thorp Purdy Jewett Urness & Wilkinson, P.C. 2003. Presented oral testimony (via telephone) to the Oregon Senate Economic and Job Stimulus Committee, regarding an overview of Oregon's economy. December, 2001. For Earthjustice, ECO prepared a declaration on the economic issues of critical habitat designation for endangered salmon. Seattle, Washington: Earthjustice Legal Defense Fund. 2001-2002. VITA: W. ED. WHITELAW December 2005 Page 27 Exhibit 14 Page 19-1 of 22?L) Provided economic analysis and testimony regarding the economic impacts of a proposed sand-and- gravel mine on surrounding farms. Private client. Eugene, Oregon: Bahr & Stotter. 2000-2002. Evaluated the economic impacts of bypassing four Federal dams on the Lower Snake River, developed a plan to mitigate the negative consequences of the bypass, and testified on these topics in a joint hearing before the House Subcommittee on Fisheries Conservation, Wildlife and Oceans, and the Subcommittee on Water and Power. Portland, Oregon: Trout Unlimited and Earthjustice Legal Defense Fund. 1999. Testified before the Washington Shorelines Hearing Board regarding how locating a large retail shopping center on industrial land would affect neighboring industrial uses. Seattle, Washington: David C. Hall. 1996. Provided oral testimony at an Antitrust Immunity Hearing regarding a petition seeking anti-trust immunity for a proposal to integrate health-care providers. Vancouver, Washington: Reed, McClure. 1995. Testified before the Portland City Council regarding the proposed location of a Costco retail store in the Industrial Sanctuary of Portland, Oregon. Portland, Oregon: Kell, Alterman. 1995. Testified on the economic impacts of proposed reforms to the Mining Law of 1872 before U.S. Senate Subcommittee on Forests and Public Land Management, Committee on Energy and Natural Resources, Washington, D.C.: Mineral Policy Center. 1995. Testified regarding the Southeast Alaska Jobs and Communities Protection Act of 1995 before the U.S. Senate Committee on Energy and Natural Resources, Washington, D.C.: Sierra Club Legal Defense Fund Alaska Rainforest Campaign.1995. Testified on the Northern Spotted Owl and the timber industry in the Pacific Northwest before the U.S. Senate Subcommittee on Environmental Protection, Committee on Environment and Public Works, Washington, D.C.: U.S. Senate Committee on Environment and Public Works. 1992. Testified before the New Mexico Horizons Task Force on Strategic Thinking in Oregon and Utah. Santa Fe, New Mexico. 1994. Testified before the Committee on Natural Resources House of Representatives on Changing Needs of the West. Salt Lake City, Utah. 1994. Testified on the impacts of reduced timber harvest in the Tongass National Forest on the economy of southeast. Anchorage, Alaska: Alaska Sierra Club Legal Defense Fund. 1994-1995. Provided analysis and testimony to the Oregon State Legislative Joint Committee on Forest Products and developed a strategic plan for allocating state resources to assist dislocated workers and timber-dependent communities and a set of legislative recommendations for implementing the plan. Participated in a one-day symposium sponsored by the Oregon State Legislative Joint Committee on Forest Products to identify timber-dependent communities. Salem, Oregon. 1990. Provided analysis and testimony to the Oregon Legislature regarding a proposal to implement comprehensive effluent fees for air pollution. Salem, Oregon: Oregon Environmental Council. 1990. Testified before Subcommittee on Regulation and Small Business Opportunities regarding the viability of flexible manufacturing networks. Washington, DC: U.S. House of Representatives Committee on Small Business. 1988. Testified before the Portland City Council regarding the proposed location of a Fred Meyer shopping center in Portland, Oregon. Portland, Oregon: Sullivan, Josselson, Roberts, Johnson, and Kloos. 1985-86. VITA: W. ED. WHITELAW December 2005 Page 28 Exhibit Page L9S of Testified before the Idaho Public Utility Commission regarding appropriate methodologies for deregulating the electricity-generating industry and for determining the fair-market value of electricity produced by cogenerators and small power producers. Boise, Idaho: Lindsay, Hart, Neil, and Weigler. 1985. Estimated the competitive wages necessary to attract and retain police and firefighters. Testified at arbitration hearings between the City and the Public Employees' Union. City of Portland. 1984-85. Provided regulatory policy analysis representing Hy-Tech Corporation in a rate hearing before the Idaho Public Utility Commission. Boise, Idaho: Runft, Leroy, Coffin, and Mathews. 1984. STATE, REGIONAL, AND NATIONAL PRESENTATIONS AND CONFERENCES "The Societal Costs and Benefits of Misallocating Water and Gasoline Additives." Universities Council on Water Resources Conference. July 2004. "The Economic Importance of Ecosystem Services." Universities Council on Water Resources Conference. July 2004. "The Economic Importance of Ecosystem Services." AWRA Summer Specialty Conference. June 2004. "The Societal Costs and Benefits of MTBE as a Gasoline Additive in California." Presenter, NGWA Conference on MTBE, Assessment, Remediation, and Public Policy. June 2003. "Paying Mother Nature." Speaker, 2003 American Planning Association National Planning Conference. Denver, Colorado. April 2003. "The Economics of Dam Removal on the Lower Snake River." Presenter. Economic Value of Environmental Resources Conference. Chico, California. April 2003. "Challenges to Economic Security." Panelist, Environmental Economics, Pacific Northwest Regional Economic Conference. Portland, Oregon. May 2002. "Economic Alternatives in the Willamette River Basin." Keynote speaker, Willamette River Watershed Conference. Sponsored by: Oregon Chapters of the American Institute, and American Water Resources Association. Vancouver, Washington. April 2001. "Economics, Salmon and the Pacific Northwest." Coordinator and presenter: Salmon/Water Workshop. Participants: ECONorthwest, Earthjustice, American Rivers, The Center for Environmental Law & Policy, Trout Unlimited, and Columbia River Inter-Tribal Fish Commission. Portland, Oregon. March 2001. "Competition Matters: An Economist's Perspective of Collaborations and the National Forests." Speaker, University of Montana School of Forestry, Plum Creek Lectures. January, 2001. "The New West: Changing Demographics, Economics, and Perceptions." Speaker, Washington State Trust Lands Conference. Seattle, Washington. November, 2000. "Economic Benefits of Parks and Recreation." Speaker, 2000 Oregon Recreation & Park Association Annual Conference. Welches, Oregon. October, 2000. "Hidden and Ignored Economic Costs in Natural Resource Decision Making." Speaker, NEPA/ESA Conference 2000. Austin, Texas. September, 2000. "Regional Economic Impact Analysis." Speaker/Facilitator, Workshop on Estimating the Economic Values and Impacts of Water-Resources Projects in the Mississippi River Basin. Memphis, Tennessee. September, 2000. VITA: W. ED. WHITELAW December 2005 Page 29 Exhibit Page 19(0 of ~~3 "Application of Economic and-Related Policy Information to Prioritize Riparian Restoration of the Willamette River, Oregon." Speaker, AWRA International Conference on Riparian Ecology and Management in Multi-Land Use Watersheds. Portland, Oregon. August, 2000. "Economic Valuation and the Watershed." Speaker, Watershed Partnerships Seminar. U.S. Office of Personnel Management, Western Management Development Center. Denver, Colorado. September, June and March 2001, November and July, 2000, November and March, 1999, October and June, 1998. "Both Sides Of The River: Salmon Recovery In The Columbia Basin." Panel participant: Searching for a Preferred Alternative. Eastern Washington University. Spokane, Washington. June, 2000.. "The Challenge of Healthy Communities," Keynote speaker, EPA Region 10 (Alaska, Washington, Oregon, Idaho) Office of Ecosystems and Communities. Seattle, Washington. May, 2000 "Beyond 2000: Regional, Border, and Global Issues for the Pacific Northwest." Panel participant: ,Protection of salmon and other environmental issues." Western Washington University: Pacific Northwest Regional Economic Conference. Bellingham, Washington. April, 2000. "The Economic Consequences of Watershed Management: Values, Impacts, and Equity." Speaker, Second Annual Wetland Workshop, Bureau of Reclamation, Great Plains Region. Estes Park, Colorado. October, 1999. "Benefits and Mechanisms for Spreading Asset Ownership in the United States." Invited Participant, The Ford Foundation Conference. New York, New York. May, 1999. "Economic Changes in the Pacific Northwest." Panel participant, Pacific Northwest Conference on Environmental & Resource Economics. Eugene, Oregon, May, 1999 "The Economic Consequences of Watershed Management: Values, Impacts, and Equity," Sustaining the Missouri River for Future Generations. Pierre, South Dakota, March, 1999 "The Ecosystem-Economy Relationship: Insights from Six Forested LTER Sites." Speaker, LTER Conference on Linking Natural and Socioeconomic Processes. Madison, Wisconsin, October, 1998. "Making Decisions When Everything Matters." Speaker, National Wilderness Conference. Seattle, Washington, May, 1998. "Designing a Report Card on the Health of the Nation's Ecosystems." Panelist, The H. John Heinz III Center for Science, Economics and the Environment. Washington, D.C., February 1998. "Making Decisions When Everything Matters." Speaker, Oregon Chapter American Fisheries Society Annual Meeting; Population, Economics, and Ecosystems: Is Sustainability Attainable? Sunriver, Oregon, February 1998. Participant, EPA/NSF Partnership for Environmental Research: Water and Watersheds STAR .-Grants Program Review Meeting. Corvallis, Oregon, January 1998. "The Effects of Measure 47." Speaker, Oregon Speech-Language and Hearing Association's Fall Conference. Bend, Oregon, October 1997. "How Can Researchers and the EPA Work Together to Improve Benefit/Cost Analysis?" Speaker, EPA Deputy Administrator's Environmental Economics Forum. Cambridge, Massachusetts, September 1997. "The Economic Effects of Ecosystem Management." Paper presented at the Western Economic Association International Conference. Seattle, Washington, July 1997. VITA: W. ED. WHITELAW December 2005 Page 30 Exhibit Page / 9r7 of as "Tracing the Economic Roots of Wetlands Restoration." Presenter, Pacific Northwest Chapter of Wetland Scientists and the Society for Ecological Restoration. Corvallis; Oregon, May 1997. "The Pacific Northwest Economy: Transitions from Brown to Green." Panel Moderator, Pacific Northwest Regional Economic Conference. Spokane, Washington, April 1997. Speaker, Oregon Department of Environmental Quality's Orphan Site Task Force, Portland, Oregon, January 1996. "The Evolution of the Pacific Northwest's Regional Economy." Speaker, Carroll College, Helena, Montana, January 1996. "Making Decisions When Everything Matters." Speaker, Washington Department of Ecology Director's Choice Forum, Seattle, Washington, September 1995. "Marketing of Indian Water Rights." Speaker, Western States Water Council's Symposium on the Settlement of Indian Water Rights' Claims, Portland, Oregon, September 1995. "Making Use of Experts When Litigating Disasters." Oregon Bar Association's 1995 Annual Meeting: Litigating Environmental Disasters: Lessons Learned Litigating the Exxon Valdez Oil Spill Case, Seaside, Oregon, September 1995. "The Changing Northwest Economy." Speaker, Pacific Rivers Council Northwest Economic Conference, July 1995. Invited Speaker, President Clinton's Pacific Rim Regional Economic Conference, Little Rock, Arkansas, June 1995. "Incentives and Subsidies: Water and Energy Use in the Columbia Basin." Speaker, Northwest Water Law and Policy Project on Water Policy and Sustainability in the Columbia River Basin. Lewis and Clark Law School. May 19, 1995. "The Two Oregons Debate: Timber vs. High-Tech." Speaker, City Club of Portland, Portland, Oregon. April 14, 1995. "Creating Community for Quality Education." Speaker, Confederation of Oregon School Administrators, Portland, Oregon. March 6, 1995. "Economic Forecast for 1995." Speaker, City Club of Portland, Portland, Oregon. January 6, 1995. "Northwest Environmental Economics." Speaker, Oregon Chapter of the American Society of Landscape Architects; USDA Forest Service, Mt. Hood National Forest Landscape Architects; and University of Oregon, Landscape Architecture Department's Conference on Sustainable Future, Beaverton, Oregon. October 28, 1994. "Managing the Northern Forests: Other Lessons from the West." Panelist, Vermont Law School's symposium on the northern forest lands and the law, South Royalton, Vermont. September 30, 1994. "The Use of Economic Information in Decision-making and Economic Benefits of Spotted Owl Rules." Speaker, Washington Department of Natural Resources, Forest Practices Board Meeting, Olympia, Washington. September 13, 1994. "Strategic Thinking in Oregon and Utah." Speaker, Meeting of the New Mexico Horizons Task Force, Santa Fe, New Mexico. August 25, 1994. "Economics and Livability of Cities." Speaker, Washington State Department of Community, Trade and Economic Development Downtown Revitalization Program Meeting, Kent, Washington. August 5, 1994. VITA: W. ED. WHITELAW December 2005 Page 31 P "Environmental Economics." Speaker, Sierra Club Legal Defense Fund Annual Meeting, Chico Hot Springs, Montana. May 24-28, 1994. "Cycles & Trends: It's All a Matter of Timing." Speaker, 1994 Construction Industry Conference, Portland, Oregon. May 20, 1994. "Contemporary Issues in Externalities." Speaker, NARUC-DOE Fifth National Conference on Integrated Resource Planning, Kalispell, Montana. May 15-18, 1994. "The College Student and the Economy." Speaker, Pacific Northwest Association of College Admissions Counselors, Portland, Oregon. April 22, 1994. "Oregon's Economy: The Recent Past and Projections for the Future." Keynote Speaker, Oregon State System of Higher Education's Counselor Conference, Eugene, Oregon. October 15, 1993. "How Do We Value Biodiversity in Ecosystems?" Speaker, Forest Products Research Conference, U.S. Forest Service, Madison, Wisconsin. September 28, 1993. "The Need for Sustainable Development and NW Regional Cooperation." Introduction, Pacific Northwest Sustainable Development Convenors Forum, Portland, Oregon. September 13, 1993. "Role of Strategic Planning in Framing Performance Measures and Accountability." Speaker, City of Seattle Mayor's Retreat, Seattle, Washington. August 19, 1993. "Meeting the Challenge: The Economic Benefits of Wildlife." Speaker, Oregon Department of Fish and Wildlife 100th Anniversary Celebration, Portland, Oregon. July 23, 1993. "Oregon's Real Economy." Keynote Speaker, Oregon Downtown Development Association Annual Conference. June 11, 1993. "Social Considerations of High Quality Forestry." Keynote Speaker, U.S. Forest Service Pacific Northwest Research Station Workshop on High Quality Forestry. May 11, 1993. "The Effect of Taxes on Oregon's Economy." Oregon State Legislature, Joint Interim Committee on Revenue and School Finance. September 16, 1992. "Trojan Shutdown or Phasedown - Who Pays?" Portland City Club. Portland, Oregon. August 21, 1992. "Environmental Externalities and Utilities." Northwest Power Planning Council Work Session. June 24, 1992. "Washington's Changing Economy: The Challenge for Future Regulation." Washington State Bar Association's Environmental and Land Use Law Section Seminar. May 29, 1992. "Economic Forecast." District 10 Pack Northwest Council Credit Professionals International Credit Association, 1992 Credit Conference. Portland, Oregon. May 19, 1992. "The Economic Myths and Realities of Timber and Owls." Eugene City Club. Eugene, Oregon. March 1992. "Economy of the Eugene-Springfield Area and How It May Influence Real Estate Values." Eugene Association of Realtors. Eugene, Oregon. March 1992. "The Economics of the God Squad Hearings: How Will it Affect Oregonians?" League of Women Voters. Eugene, Oregon. February 1992. "The Current Economic Issues Associated With Oregon's Natural Resources." City Club of Portland. Portland, Oregon. February 1992. VITA: W. ED. WHITELAW December 2005 Page 32 "The Oregon Economy: What's Going On and What's Going to Go On." Oregon Editorial Writers Conferences. Dinner Speaker, Eugene, Oregon. October 1991. "The Economics of Water Resource Management." Western Regional Conference, National Association of State Budget Officers (NASBO). Seattle, Washington. August 1991. "The Economy and Oregon's Public Schools." Oregon Association of School Business Officials (OASBO) 1991 Summer Conference. Bend, Oregon. July 1991. "Achieving a Predictable Timber Supply and Community Stability While Protecting Forest Ecosystems." Briefing for Congressional and Governors' Staff of Oregon and Washington. Vancouver, Washington. May-June 1991. "New Perspectives and the Forest Service: A New Way of Thinking." Portland Metropolitan Chamber of Commerce, Portland, Oregon. May 1991. "Reversal of Fortune: The Economics of New Perspectives." Western Forest Economists Conference, Keynote Speaker, Portland, Oregon. May 1991. "New Perspectives and the Forest Service." Pacific Northwest Regional Economic Conference, Portland, Oregon, May 1991. "Economics of Pollution and Clean-up: What Price to Society Today and Tomorrow?" Water Quality, Water Quantity: The Reluctant Marriage Conference. Northwestern School of Law of Lewis and Clark College and WaterWatch of Oregon, Inc. February 1991. "New Perspectives University Colloquium Coordination Workshop." U.S. Forest Service, Rocky Mountain Forest and Range Experiment Station, Denver, Colorado. January 1991. "The Northwest Economy." Oregon Municipal Finance Officers Association. Portland, Oregon. November 1990. "Transforming From a Natural Resource Based Economy." Visualizing the Future - Idaho's Second Century Symposium. Idaho Centennial Commission. Boise, Idaho. November 1990. "The Nineties - A Decade for Change." Twenty-Seventh Annual PNWIS-AWMA Conference. Portland, Oregon. November 1990. "The Northwest Economy." Commercial Investment Realtors of Lane County. November 1990. "Clear Cut Crisis." Panelist. Oregon Public Broadcasting Symposium. Portland, Oregon. August 1990. "Oregon's Changing Economy and Marketplace." Panelist. Oregon Downtown Development Association Annual Conference. Eugene, Oregon. July 1990. "Generators Beware: Environmental Firms are Clustering for a Reason." Environmental Hazards Annual Conference. Keynote Speaker. Seattle, Washington. May 1990. "New Perspectives on Forest Management." U.S. Forest Service Symposium. Forestry Sciences Laboratory, Corvallis, Oregon. April 1990. "The Economy and the College Student." National Academic Advising Association Region 8 Conference. Keynote Speaker. Portland, Oregon. March 1990. "Fast Forward to 2000: The Once and Future Northwest." Keynote speaker. City Club. Portland, Oregon. January 1990. "Futures Focus Group: Governor's Commission on Higher Education, Portland Metropolitan Area." December 1989. Portland, Oregon. VITA: W. ED. WHITELAW December 2005 Page 33 Exhibit I "The Anatomy of a Timber Supply Crisis." Moderator. The Timber Supply Crisis: Potential Impacts and Economic Development Policy Options, a Colloquium. Northwest Policy Center. Seattle, Washington. November 1989. "Economic Impacts of Protecting the Environment." Pacific Northwest Pollution Control Association Annual Conference. Eugene, Oregon. October 1989. "Global Warming: The Stakes." "Sustainable Energy: A Path for Environmental Stewardship." Solar Energy Association of Oregon Annual Conference. Eugene, Oregon. October 1989. "Whose Water? Past; Present; Future." Institute for Environmental Studies, University of Washington. Seattle, Washington. September 1989. "The Once and Future Northwest." West Coast Public Radio Conference. Seattle, Washington. September 1989. "Strategic Economic Development and the Environment." Land Conservation and Development Commission Workshop. Silver Falls, Oregon. September 1989. "Oregon's Plan for Excellence." Council for Economic Development in Oregon, Annual Conference. September 1989. "Transportation to the 21st Century." American Economic Development Council 1989, Western Region Conference. Eugene, Oregon. September 1989. "Planning for Economic Growth." Oregon's Next Decade of Land Use Planning. 1989 Oregon Planning Institute. Eugene, Oregon. September 1989. ."Resource Regulation in Oregon's Future." Statewide retreat for natural resource agency heads. Silver Falls, Oregon. August 1989. "Future Social, Economic, and Cultural Trends for Oregon: Implications for Public School Education." Oregon Leadership Academy's Spring Leadership Conference. Confederation of Oregon School Administrators. Eugene, Oregon. April 1989. "Governor Goldschmidt's Strategic Economic Plan for Oregon." Oregon Chapter, American Planning Association Spring Conference. Beaverton, Oregon. March 1989. "The Linkage Between Public-Works Infrastructure Financing and Economic Development." Special Districts Association of Oregon, Annual Conference. Ashland, Oregon. February 1989. "Economic Development Impacts of Old Growth Preservation." Oregon's Forests in 2010; a conference on the future of Oregon's forests, hosted by U.S. Representative Peter DeFazio and Oregon State Representative David Dix. Eugene, Oregon. February 1989. "Regional Economic Development Issues." 1988 Issues Conference of the Northwest Business Coalition. Portland, Oregon. November 1988. "The Economic Future of the Northwest." 1988 Government Finance Officers' Association, Annual Conference. Seattle, Washington. November 1988. "The Changing of State Economic Development Policy." Tenth Annual Association for Public Policy Analysis and Management Research Conference. Seattle, Washington. October 1988. "The Oregon Economy." Oregon Business Week. Western Oregon State College. Monmouth, Oregon. August 1988. "Evaluating the Role of Fish in the Development of the Pacific Northwest's Economy--or Is It the Other Way Around?" Salmon and Steelhead Roundtable, sponsored by the Northwest Power Planning Council. June 1988. VITA: W. ED. WHITELAW December 2005 Page 34 Exhibit Page o 1 of "Developing a Strategic Plan for Regional Economic Growth." Northwest Policy Center Journalists Forum. May 1988. "Regional Economic Strategies in the Pacific Northwest." An hour-long interview for KOEW Radio. Seattle, Washington. March 1988. Invited panelist on urban and rural economic growth. Agriculture Conference Days, Oregon State University. Corvallis, Oregon. February 1988. Invited testimony before the Committee on Trade and Economic Development. Oregon State Legislature. January 1988. Invited participant. Regional Strategies Conference. University of Washington, Institute for Public Policy and Management. Seattle, Washington. January 1988. "A New Approach to Old Economic Development Strategies." Washington Energy Task Force. Olympia, Washington. December 1987. "The Economic Past and Future of Oregon." Sunset Corridor Association's Fall 1987 conference. Beaverton, Oregon. October 1987. "Regional Development Strategies: State and Local Roles." Thirteenth Annual Oregon Planning Institute. Eugene, Oregon. October 1987. "Accelerating Our Economic Development." State of Washington, Economic Conference for Senior Officials: The Economics of the State and Its Regions--What We Know About the Present and What We Can Do for the Future. Washington Institute for Public Policy. Olympia, Washington. June 1987. "Perspectives on Economic Development Strategies." Northwest Allied Newspapers, Annual Meeting. May 1987. "New Economic Strategies for Regional Development." Twenty-First Annual Pacific Northwest Regional Economic Conference. Seattle, Washington. May 1987. Invited testimony before the Committee on Trade and Economic Development. Oregon State Legislature. January 1987. "The Economics of Economic Development." Seventh Biennial Legislative Conference on the Economy. Salem, Oregon. January 1987. "Changing Oregon's Economy From an Old Growth Economy." Oregon Natural Resources Council. September 1986. "Outlook for the National, State, and Local Logging Industry for 1986." Associated Oregon Loggers, Inc. 16th Annual Convention. Springfield, Oregon. January 1986. "Idaho Economic Development--Prescriptions for Progress." Governor's 1985 Economic Symposium. Boise, Idaho. December 1985. "Getting the Goods and Paying for Them." PNPCA--Sewer Design/Construction Program.. Portland, Oregon. October 1985. "Small Businesses in the Pacific Northwest: The Real Wealth of Nations." Meeting of Portland Oregonian Business Forecast. Portland, Oregon. July 1985. "Amendments to Oregon's Land Use Planning Goal 9: The Economy." Invited testimony before City Club of Portland, Standing Committee on Land Use. Portland, Oregon. July 1985. VITA: W. ED. WHITELAW December 2005 Page 35 Exhibit "Making Sure Oregon's Journey on the River Styx is Roundtrip." Democratic Business Forum. Portland, Oregon. July 1985. "A Look at the Northwest Region." Round Table for Unions in the Wood Products Industry. Portland, Oregon. May 1985. "A Descriptive, Explanatory, and Prescriptive Analysis of the Economics of Washington and Oregon." Nineteenth Annual Pacific Northwest Regional Economic Conference. Portland, Oregon. May 1985. "Economic Development and the Future of Portland." Invited testimony before Portland Commissioner, Mike Lindberg and staff. Portland, Oregon. January 1985. "Can Our Taxes Survive Our Economic Development?" Council of Governments, Annual Dinner Meeting. Salem, Oregon. January 1985. "Small Business Formation." Meeting of Portland Oregonian Business Forecast. Portland, Oregon. January 1985. "Can Our Taxes Survive Our Economic Development?" League of Oregon Cities. Eugene, Oregon. November 1984. Also, the State Senate Democratic Caucus, Silver Falls State Park, Oregon. January 1985. "Economic Development and the Future of Portland." Presentation and discussion. The City of Portland, Office of Public Works. November 1984. "National and Northwest Economic Outlook" and "Business Formation in the Northwest." Inaugural Meeting of Portland Oregonian Business Forecast. Portland, Oregon. July 1984. "State Economic-Diversification Strategies." Oregon Democratic Campaign Workshop. Portland, Oregon. June 1984. "The Economy and the College Student: More Recent Observations." Pacific Northwest Regional Economic Conference. Olympia, Washington. May 1984. "The Implications of Increasing Average Costs of Electrical Generation in the Pacific Northwest." Northwest Conservation Act Coalition Conference. Spokane, Washington. April 1984. "The State of the Economy." Building Trades Business Agents Institute. Eugene, Oregon. March 1984. "The Economics of Fish and Power." Pacific Northwest Electric Power and Conservation Planning Council. Portland, Oregon. February 1983. "The Economics of Fish and Power." Hydro-Power Symposium, American Fish Society, Montana Chapter. Kalispell, Montana. February 1983. "The Economy and the College Student." American Association of Higher Education. Seattle, Washington. November 1982. "Directions in Oregon Land-Use Planning." Oregon Chapter of the American Society of Landscape Architects. Eugene, Oregon. November 1982. "Housing and the Economy." State Housing Division and Oregon State Home Builders Association. Salem, Oregon. October 1.982. "Achieving Energy Conservation by Rate Design in the Residential Sector." Regional Power Plan Workshop, Pacific Northwest Electric Power and Conservation Planning Council. Seattle, Washington. October 1982. VITA: W. ED. WHITELAW December 2005 Page 36 Exhibit Page a hf' Of "The Economics of the Northwest Region." Central Oregon Project Energy Conference. Sun River, Oregon. September 1982. "Land Use, Public Facilities, and Economic Development." Portland City Club. Portland, Oregon. July 1982. "Financing the Infrastructure." Oregon Legislative Joint Interim Task Force on Managing and Financing Growth. Eugene, Oregon. July 1982. "Economic Impacts of Energy Investments." International City Management Association, Northwest Regional Conference, League of Oregon Cities. Salishan Lodge, Oregon. March 1982. "Developing Industrial Lands." Testimony before the Industrial Lands Subcommittee of the Joint Legislative Committee on Land-Use. Portland, Oregon. March 1982. "Current Economic Issues." Labor Education and Research Center, Building Trades Representative Institute. University of Oregon. Eugene, Oregon. March 1982. "Oregon Economic Conditions and Forecasts." Presented to the Oregon Association of School Boards. Inn at Otter Crest, Newport, Oregon. January 1982. "The State and National Economies: The Foreseeable Impact on Local Government." State Council of Firefighters, Labor Education and Research Center. University of Oregon. December 1981. "Environmental Impacts and the Evaluation of Resource Acquisitions.". Third Annual, Alternative and Renewable Energy Resource Conference, and Bonneville Power Administration. University of Montana. September 1981. "State and Local Economic Development: Target Variables--Tools and Strategies." Fifteenth Annual, Pacific Northwest Regional Economic Conference. Boise, Idaho. April 1981. "Economic Growth--Public and Private Sector--Financing--Problems and Future Development." Oregon League of Women Voters. Eugene, Oregon. April 1981. "The Economic Outlook." Society of Industrial Realtors, 1st Annual Real Estate Conference. Portland, Oregon. April 1981. "Oregon's Economic Forecast". Oregon Senate Review Committee. Salem, Oregon. March 1981. "Current Economic Conditions." Labor Education and Research Center's Session for Business Agents, Building Trades Union. University of Oregon. Eugene, Oregon. March 1981. "Economics and Public Policy Issues in Mass Transit." Transit Union Representatives' Training Institute. Asilomar, California. January 1981. "Mass Transit: Economics and Public Policy." Mass Transit Union Representative Training Institute. U.S. Department of Transportation and AFL-CIO, George Meany Center for Labor Studies. University of Oregon (Eugene, Oregon), July 1980. University of California (Berkeley, California). November 1980 and January 1981. "National/Regional/Oregon Economics." League of Oregon Cities. Portland, Oregon. December 1980. "Economics and Public-Policy Issues in the Mass Transit Industry." Transit Union Representatives' Training Institute. Asilomar, California. November 1980. "State and Local Economic Development in Oregon." "Vehicles for Local Economic Development." Annual conference of the League of Oregon Cities. Salem, Oregon. November 1980. "The Pacific Northwest as Viewed by a Practitioner of the Dismal Science." Fourth Annual, Northwest Regional Financial Planning Conference. May 1980. VITA: W. ED. WHITELAW December 2005 Page 37 Exhibit 1+ P 0 f fie? "Approaches to Estimating the Effects of Public Policies on Urban Land Prices." Pacific Northwest Regional Economic Conference. Portland, Oregon. May 1980. "The Pacific Northwest's Economic Future." Annual, Northwest Regional Financial Planning Conference, International Association of Financial Planners. Portland, Oregon. May 1980. "New England and the Pacific Northwest: Regional Economic Comparisons." Fourteenth Annual, Pacific Northwest Regional Economic Conference. Portland, Oregon. May 1980. "Approaches to Estimating the Economic Effects of Public Policies on Urban Land Prices." Pacific Northwest Regional Economic Conference. Portland, Oregon. May 1980. "Measuring the Effects of Public Policy on Land Prices." U.S. Department of Housing and Urban . Development and the Urban Land Institute. Washington, D.C. February 1980. "The Economics of the Extended Family." Oregon Community Education Association. Eugene, Oregon. February 1980. "Urban Growth Boundaries." Oregon Land-Use Conference for Realtors and Homebuilders, sponsored by Dialogue Northwest. Portland, Oregon. May 1979. "Neighborhood Revitalization." Neighborhood Revitalization Workshop, Oregon Savings and Loan League. Portland, Oregon. May 1979. "The Economics of Land Use." Legislative Conference on the Economy, Oregon Council on Economic Education. Willamette University. Salem, Oregon. January 1979. "The Effects of Legislative Action on Land Value." Seminar on Residential Property Values in Transition. Central Oregon Chapter of the American Society of Appraisers. September 1978. "Shopping Patterns and Municipal Regulations in Nairobi." Western Regional Science Association meetings. Long Beach, California. February 1974. "Urbanization, Land Use and Long-Range Planning in the State of Oregon." Eighth Annual, Pacific Northwest Regional Economic Conference. Seattle, Washington. April 1974. "Land-Use Planning, Economic Development and the Distribution of Population in Oregon." Seventh Annual, Pacific Northwest Regional Economic Conference. Portland, Oregon. April 1973. "Critical Appraisal of the American Institute of Architects National Policy on Urban Growth." AIA/Press Seminar. Portland, Oregon. September 1972. "The Economics of Poverty in Relation to Choice." Annual Meeting of the American Psychology Association. San Francisco. September 1968. "Municipal Investment: An Econometric Analysis." Harvard Seminar on Regional and Urban Economics, Resources for the Future. Cambridge, Massachusetts. November 1967. TELEVISION AND RADIO COMMENTARIES National Public Radio, Talk of the Nation. Host: Neal Conan. "Northwestern U.S. Economy." November 2002 National Public Radio Series (taped for KLCC radio, Eugene, Oregon). "Current Economic Issues" The defeat of Measure 28 and the future of Oregon's economy. January 2003. "Bush vs. Clinton: A Clear Economic Choice." September 1992. VITA: W. ED. WHITELAW December 2005 Page 38 Exhibit 4-I- "Why Oregon's Water Policies Are All Wet." August 1992. "Thanks for the Memories, Larry Campbell." July 1992. "Tackling Intercollegiate Athletics." November 1991. "Discussing the Conversation." September 1991. "Coming Soon: The Legislative Session." July 1991. "The Graduate (Circa 1991)." June 1991. "The Prognosis for Health Care." May 1991. "Family Crisis and Their Costs." April 1991. "All in the Families." March 1991. "Mixing Oil and Water." March 1991. "An Oregon Forecast That's Partly Sunny." February 1991. "Teaching Our Schools a Lesson." January 1991. "Taking Five." November 1990. "Clear Cut Crisis." Panelist. Oregon Public Broadcasting Symposium. Portland, Oregon. August 1990. "Oregon's Changing Economy and Marketplace." Panelist. Oregon Downtown Development Association, Annual Conference. Eugene, Oregon. 1990. "The Once and Future Northwest." West Coast Public Radio Conference. Seattle, Washington. September 1989. "Regional Economic Strategies in the Pacific Northwest." An hour-long interview for KOEW Radio. Seattle, Washington. March 1988. "The University of Oregon's Riverfront Research Park." Radio interview, Willamette Science and Technology Center's series, "Getting Technical." KWAX-FM. Eugene, Oregon. September 1985. COMMUNITY SERVICE, SPEECHES, AND WORKSHOPS "Economic Impacts of Ballot Measure 37," Panel presentation, sponsored by Eugene Area Chamber of Commerce. Eugene, Oregon. December 2004. Lane County Forecast 2004, Panel discussion sponsored by the Register-Guard and Eugene Area Chamber of Commerce. Eugene, Oregon. January 2004. Lane. County Forecast 2003, Panel discussion sponsored by the Register-Guard and Eugene Area Chamber of Commerce. Eugene, Oregon. January 2003. Lane County Forecast 2002, Panel discussion sponsored by the Register-Guard and Eugene Area Chamber of Commerce. Eugene, Oregon. January 2002. "Economic Matters & Economics Matters: Oregon's Road Into and Out of the Current Economic Recession." Keynote speaker, Mid-Willamette Valley Council of Governments Annual Meeting. Salem, Oregon. January 2002. VITA: W. ED. WHITELAW December 2005 Page 39 Exhibit Lane County Forecast 2001, Panel discussion sponsored by the Register-Guard and Eugene Area Chamber of Commerce. Eugene, Oregon. January 2001. "Economic Case Against Logging." Panel participant, University of Oregon, Environmental Law Conference. Eugene, Oregon. March 2000. Lane County Forecast 2000, Panel discussion sponsored by the Register-Guard and Eugene Area Chamber of Commerce. Eugene, Oregon. January 2000. "Space., Time and Eugene's Economy." Panel participant, City of Eugene, 1999-2000 City Goals Process, Environmental Scan. Eugene, Oregon. February 1999. Lane County Forecast'99, Panel discussion sponsored by the Register-Guard and Eugene Area Chamber of Commerce. Eugene, Oregon. February 1999. "Making Sense of Trends and Cycles." Principal Speaker, Lane Council of Governments Appreciation Dinner. Eugene, Oregon. January 1999. "Environmental Issues in the Pacific Northwest." Speaker, University of Oregon Department of Economics, Lecture Series. Eugene. Oregon. July 1998. "Economic Forecast 1998." Oregon Association of Realtors: Spring Real Estate Conference. Eugene, Oregon. March 1998. Lane County Forecast 1998, Panel discussion sponsored by the Register-Guard and Eugene Area Chamber of Commerce. Eugene, Oregon. January 1998 Oregon Speech-Language & Hearing Association's Fall Conference. Bend, Oregon. October 1997. "Thriving in a Hostile Environment." Oregon Department of Revenue. Salem, Oregon. October 1996. "Voting Your Pocketbook." City Club of Portland. Portland, Oregon. November 1996. Aired on Oregon Public Broadcasting and area cable television. Lewis & Clark Law School, Seminar on Growth Management. November 1992. "Measures 5 and 7: How Do They Impact the Oregon Economy?" Clergy and Laity Concerned (CALC) Fall forum. October 1992. "The Changing Economy and Housing." Eugene Housing Committee/City Club. Eugene, Oregon. June 1991. "Changes in the Pacific Northwest Economy." Eugene Estate Planning Council. Eugene, Oregon. May 1991. "Eugene's Economic Future: If Not Timber, What?" City Club of Eugene. November 1990. "Region on Trial." Northwest Public Affairs Network. Seattle, Washington. September 1990. "Ancient Forest National Symposium and Retreat." The Wilderness Society. Breitenbush Park, Oregon. August 1990. "Ancient Forests." Oregon Public Broadcasting. Portland, Oregon. August 1990. "Oregon's Changing Economy and Marketplace." Oregon Downtown Development Association. Eugene, Oregon. July 1990. "The Spotted Owl and the Northwest Economy." Local radio and television stations. Eugene, Oregon. Spring 1990. VITA: W. ED. WHITELAW December 2005 Page 40 Exhibit "Economy and the College Student." Golden Key Club, University of Oregon. Eugene, Oregon. January 1990. "Metropolitan Economic Development Strategies: A Panel Discussion." Eugene Area, Chamber of Commerce. Eugene, Oregon. December 1989. "Lane County Regional Economic Trends." Conference on the Economy of Lane County, sponsored by Lane Council of Governments and Eugene-Springfield Metro Partnership. Springfield, Oregon. November 1989. "Timber Issues Call-In." *Invited participant. KSOR Public radio for Southern Oregon and Northern California. Ashland, Oregon. July 1989. "Oregon's Economy in 1989 and Beyond." Emerald Valley Development Professionals. Eugene, Oregon. January 1989. "Education and the Economy." Churchill High School, Career Awareness Program. Eugene, Oregon. January 1989. "The Economic Future of Lane County." Eugene/Springfield Leadership Conference. Eugene, Oregon. September 1988. "Career Opportunities in Economics." Student Economic Association. University of Oregon. May 1988. "Developing Oregon's Economy Strategically." Junction City-Harrisburg Area, Chamber of Commerce. Junction City, Oregon. March 1988. "Strategies for Oregon's Economic Development." Eugene Active 20-30 Club. Eugene, Oregon. March 1988. "Presidential Campaign '88: The Candidates and the Economic Issues." Student Economics Association, Presidential Symposium. University of Oregon. March 1988. "The Economy and the College Student." New Student Host Program's Academic Symposium. Eugene, Oregon. September 1987. "The Economic Future of Lane County." Eugene/Springfield Leadership Conference. Eugene, Oregon. September 1987. "The Environment and Regional Economic Development." Earth Week 1987. University of Oregon. April 1987. "How to Make Oregon's Journey to the River Styx Roundtrip." Eugene/Springfield Leadership Conference. Eugene, Oregon. April 1987. Reviewed nominations and selected award winners for the Oregon Chapter of the American Planning Association, Awards Jury. Albany, Oregon. March 1987. "Lane County Business and Economic Forecast for 1987." Lane Community College. December 1986. "Lane County Business and Economic Forecast for 1987 and Beyond." Eugene-Springfield Leadership Conference. September 1986. "Old Growth, New Growth: Timber Issues in the Pack Northwest." Earth Day. University of Washington. April 1986. "The Economy and the College Student." Oregon State Correctional Institution and Oregon State Penitentiary. February 1986. VITA: W. ED. WHITELAW December 2005 Page 41 Exhibit "Lane County Business and Economic Forecast for 1986." Eugene Kiwanis Club. February 1986. "Lane County Business and Economic Forecast for 1986." Eugene Hospital and Clinic. February 1986. "Economic Future of Lane County." Metro Scene sponsored by the Eugene Area Chamber of Commerce. Eugene, Oregon. January 1986. "An Overview of the National, State, and City Outlook." Lane County Business and Economic Forecast for 1986. Eugene, Oregon. December 1985. "The Economics of Housing." Lecture and discussion for a course on "Housing in Society." University of Oregon. November 1985. "How to Make Oregon's Journey on the River Styx Roundtrip." South Lane Public Issues Forum. Cottage Grove, Oregon. November 1985. "The Benefits of Small Business." University of Oregon, Speaker Service reception. University of Oregon. September 1985. "Northwest Economic Future--Where We Are and Where We're Going." Eugene Downtown Rotary Club. Eugene, Oregon. September 1985. "The University of Oregon's Riverfront Research Park." Radio interview. Willamette Science and Technology Center's series, "Getting Technical." KWAX-FM. Eugene, Oregon. September 1985. "Making Sure Oregon's Journey on the River Styx is Roundtrip." National Association of Accountants. Eugene, Oregon. September 1985. "How to Make Washington's Journey on the River Styx Roundtrip." Olympia Economist Club. Olympia, Washington. March 1985. "Northwest Economic Future--Where We Are and Where We're Going." City Club of Portland, Standing Committee on Land Use. Portland, Oregon. March 1985. "Oregon's Economic Development: Promises and Prospects." University of Oregon, Forum. Albany, Oregon. March 1985. "Is There Economic Life After High School?" Student Body, Sheldon High School. Eugene, Oregon. March 1985. "The Budget Deficit and the Trade Deficit: Symptoms of the Fiscal Revolution." First United Methodist Church. Eugene, Oregon. March 1985. "Oregon's Economic Conditions, Prospects, and Policies." Lane Democratic Forum. Eugene, Oregon. February 1985. "Myth and Reality: Oregon's Economy and Taxes." Southern Oregon State College. February 1985. "Can Lane County Survive?" Eugene-Springfield Real Estate Research Committee, Semi-Annual meeting. November 1984. "The Level and Composition of Economic Growth in Greater Portland." First quarterly meeting of The Business Journal, Board of Economists. Portland, Oregon. July 1984. "Strategic Economic Planning for Higher Education." Mission Planning Commission, Lewis and Clark College. January 1984. "Is There Economic Life After High School?" Crescent Valley High School. Corvallis, Oregon. November 1983. VITA: W. ED. WHITELAW December 2005 Page 42 Exhibit 11-t "The U.S. Economy." Sundstrand Data Control. Sunriver, Oregon. September 1983. "Economics and the Editorial Page." Wendell Webb Seminar, School of Journalism. University of Oregon. June 1983. "Is There Economic Life After High School?" Sheldon High School. Eugene, Oregon. June 1983. "Economic Recovery: How Soon? How Good?" Parents' Weekend. University of Oregon. May 1983. "The Economy and the College Student." Economics Department, Lewis and Clark College. May 1983. "The Economy and College Student." College Faculty and Staff and Guests of Business, Lewis and Clark State College. Lewiston, Idaho. February 1983. "A Business and Economic Forecast for 1983: Eugene's Economy." Business Assistance Team, The Eugene Chamber of Commerce, and Lane Community College. Eugene, Oregon. December 1982. "Local Economic-Development: Causes and Strategies." Linn-Benton Economic Development Forum. Corvallis, Oregon. November 1982. "Economic Development in Lake Oswego." Lake Oswego Chamber of Commerce Workshop. Inn at Spanish Head, Lincoln City, Oregon. October 1982. "Evaluation of the Industrial Sector Forecasting Models of the Pacific Northwest Utilities." Conference Commission and the Northwest Energy Policy Project, Bonneville Power Administration Workshop. Portland, Oregon. October 1982. "The Oregon Economy." University of Oregon Day at the Eugene Hilton. Eugene, Oregon. October 1982. "Capitalist Theory Today." Nineteenth Annual, Grace Graham Vacation College. August 1982. "Economic Development Strategies." City of Coos Bay Workshop. Coos Bay, Oregon. August 1982. "Economic Development Strategies." City of Oregon City Workshop. Oregon City, Oregon. August 1982. "Reaganomics: A Status Report." Labor Education and Research Center, UFCW Training Program. University of Oregon. July 1982. "Plant Modernization and Its Impact on Structure of Wood Products Industry." Bureau of Governmental Research Service, University of Oregon. July 1982. "The Current Recession and the Prospects for Surviving." Office of University Relations Workshop. Bend, Oregon. June 1982. "Economic Development Strategies." Lake Oswego Chamber of Commerce, Forum Meeting. Lake Oswego, Oregon. May 1982. "The Economic Outlook for the 1980s." Spring Parents' Weekend, Student University Relations Council, University of Oregon. Eugene, Oregon. May 1982. "Economic Recovery in Lane County." Lane County Small Business Association, Lane Community College Downtown Center. Eugene, Oregon. April 1982. "Local Economic-Development Strategies." Employment and Training Department, Lane County. Eugene, Oregon. March 1982. VITA: W. ED. WHITELAW December 2005 Page 43 Exhibit f-i "Economic Outlook for the Forest-Products Industry." Koppers Chemicals and Coatings. Eugene, Oregon. March 1982. "Future Options for Economic Development." KOZY-TV. Eugene, Oregon. January 1982. "Basic Concepts of Economics--Schools of Thought, from Keynes to Reaganomics and Beyond." "Economic Growth." "Policy Outcomes and Strategies for Labor." Labor Education and Research Center, Economics Seminar. Salem, Oregon. December 1981. "Growth Industries: The Next 20 Years." Lane County Private Industry Council. Lane County Fairgrounds, Eugene, Oregon. November 1981. "Reaganomics." Department of Economics. University of Montana. May 1981. "Is There Life After High School." Junior Achievement's 1981 Oregon Management Conference. Inn at Otter Crest, Newport, Oregon. February 1981. "The Economy of the Willamette Valley" and "Commercial and Industrial Locations--Some Hints About What Business Looks For." League of Oregon Cities. Portland, Oregon. November 1980. "Economics of Today." Lecture and discussion. Economics Workshop sponsored by Rogue Community College. Grants Pass, Oregon. April 1980. "Inflation, Recession, and Economic Growth." Lecture and discussion. Vacation College, University of Oregon. Eugene, Oregon. August 1980. "Economic Conditions, Land-Use Patterns and Real Estate in Eugene-Springfield." Eugene Board of Realtors. Eugene, Oregon. March 1980. "Economic Conditions, Land-Use Patterns, and Real Estate in Eugene-Springfield." Eugene Board of Realtors. Eugene, Oregon. March 1980. "Oregon's Economy: Diagnosis and Prescription." Albany Area Chamber of Commerce. Albany, Oregon. May 1980. "Northwest Economic Outlook." Oregon Society of Certified Public Accountants. Eugene and Portland, Oregon. November-December 1979. "Oregon's Economy." Staff retreat, Eugene Hospital and Clinic. Eugene, Oregon. November 1979. "Oregon's Economy." City Club of Portland. Portland, Oregon. September 1979. "Economics:. Various Viewpoints." Alumni Summer College. Linfield College. August 1979. "Eugene's Economy and Growth Management." Lecture and discussion for a class on "Community Concerns." North Eugene High School. March 1979. "Economic Costs of Growth Management Policies." Speech and discussion. Growth Management Workshop sponsored by Jackson and Josephine Counties and Oregon State University, Extension Service. February 1979. "Urban Economics and Public Policy." Short Courses, Department of Urban and Regional Planning, University of Oregon. Eugene, Oregon. 1977, 1978, 1979. "Economic Forecasts for the Eugene-Springfield Area." Emerald Executive Association. Eugene, Oregon. October 1978. "Economic Growth in the Eugene-Springfield Area." League of Women Voters of Central Lane County. Eugene, Oregon. May 1978. VITA: W. ED. WHITELAW December 2005 /---P_aee_44 Exhibit ff Paize r)~ ! I of _-~,.2 3 "Hood River's Economy: Some Alternatives for Local Economic Planning." County Planning Commission, City Planning Commission, County Commissioners, City Council, Chamber of Commerce, and various citizens groups. Hood River, Oregon. March 1978. "Oregon's Non-Forest Economy." Forests and Oregon's Economic Future Conference, sponsored by the Oregon Student Public Interest Research Group (OSPIRG). Eugene, Oregon. February 1978. "Community Development Corporations and Eugene's Economy.". Community Forum Series. Eugene, Oregon. February 1978. "The Economics of the Community School." Workshop on the Extended Family, sponsored by the Oregon Community Education Association. Eugene, Oregon. February 1978. "The Economy of the Eugene-Springfield Metro Area." Joint session of the Retired Officers Association and the Navy League. Eugene, Oregon. January 1978. "Lane County's Economy and Vehicles for Economic Development." Economic Development Forum, sponsored by the City of Eugene, the City of Springfield, Lane County, and the Eugene- Springfield Chamber of Commerce. Springfield, Oregon. November 1977. "Vehicles for.Economic Development: Workshops on Local Economic Planning." Conducted for the Eugene City Council. Eugene, Oregon. October-November 1977. "Urban Fiscal Crises." Lecture and discussion. Vacation College, University of Oregon. Eugene, Oregon. August 1977. "The Economics of Oregon's Future." Oregon Conference on Survival. Menucha in Corbett, Oregon. June 1977. "Economic Development and Portland." Paper and discussion. Invited by Mayor Neil Goldschmidt. Portland, Oregon. November 1975. "The Western Environmental Trade Association's (WETA's) Evaluation of OCC&DC's Coastal Zone Management Program." Oregon's Lane Conservation and Development Commission. Salem, Oregon. May 1975. "Economic Impacts of the Proposed Pacific Rim Center." Portland City Planning Commission and the Portland City Council. August-November 1973. "Economics and Ecology: Key Issues in the Controversy." Public Discussion Series on Environment and Population. University of Oregon. February 1970. "Intra-Urban Industrial and Residential Location." "The Urban Ghetto Problems of Race and Poverty." "Urban Renewal and Federal Housing Policy." "Municipal Finance." "The Urban Transportation Problem." Short Course in Business and Economics, Hill Foundation Seminar for Newsmen, University. of Oregon. Eugene, Oregon. July 1969. "The Application of Benefit-Cost Analysis to Education." NDEA School Administration, In-Service Project. Eugene, Oregon. October 1968, March 1969. "Expenditures: Oregon in Perspective." Conference on State and Local Tax Policy for Oregon: Perspectives and Alternatives. Sponsored by the School of Business and Technology, Department of Economics and the Cooperative Extension Service of Oregon State University. Corvallis, Oregon. March 1969. "Urban Problems; Finance, Housing and Transportation." Oregon House Committee on Urban Affairs. Salem, Oregon. February 1969. "Economics and Real Property." Oregon State Tax Commission, Appraisal Short Course, Oregon State University. Corvallis, Oregon. August 1968. VITA: W. ED. WHITELAW December 2005 - Page 45 Exhibit "The Function and Incidence of Taxation." Hill Foundation Seminars for Newsmen, University of Oregon. Eugene, Oregon. July 1968. VITA: W. ED. WHITELAW December 2005 . I Page 46 Exhibit Page 2l 3 of *DLQ L EAA Er tt 5 ExI,1:ko :k-x Exhibit 14 Page,a.A of a2 IECO : LOGIC Consulting Engineers October 12, 2005 Matthew Ringstad Apollo Geophysics P.O. Box 28520 Bellingham, Washington 98228-0520 RE: Thornburgh Resort. Dear Matthew: Principals: David R. Bennett Charles G: Bunker Robert W. Emerick John P. Enloe Gerry O. LaBudde Jeffrey R. Hauser Richard E. Stowell APOL05-001 Per your request, I reviewed information provided by Apollo Geophysics germane to the proposed Thornburgh Resort. A list of these documents is attached. My comments related to groundwater resource exploitation by the proposed resort and on-site disposal of sewage effluent are provided herewith. For the record, I hold the position of Chief Hydrogeologist for ECOLOGIC Engineering, a consulting firm specializing in water supply and wastewater treatment. I am registered in the State of Oregon as a Geologist and my practice in the field of hydrogeology throughout the western U.S. has spanned more than 30 years, I have first-hand knowledge of the geology and the groundwater conditions in this area as a result of consulting projects I have completed for the City of Redmond as well as other work in the immediate vicinity of the project area. Water Supply Issues Groundwater availability and potential impacts on existinq wells in the area. I agree, in part, with the tenor of the Hydrology Report, Water Supply Development Feasibility, Proposed Thornburgh Resort (Hydrology Report) prepared by Newton Consultants, Inc. The report recognizes that the regional aquifer is highly transmissive, which can result in very large well yields and associated small drawdown in the aquifer. My work for the City of Redmond, primarily the review of virtually all of their available well data and the construction and testing of City Wells 5 and 6, leads me to a similar general conclusion. That is, it is highly probable that wells on the property can reliably meet the project's needs. Of particular concern to nearby well owners is the potential for groundwater exploitation by the proposed project to impact their wells. The Hydrology Report did not provide a rigorous analysis of potential interference on nearby wells. Granted, conditions in the aquifer are very complex, so that any calculated drawdown should only be viewed as a rough estimate of potential interference on existing wells, but these calculations would have been useful to demonstrate how a cone of depression evolves over space and time. Instead, the Hydrology Report discusses observed drawdown from actual pumping tests. What the tabulated data do not show is that the cone of depression in a highly transmissive aquifer is fairly flat, so that even though the drawdown is small, the effect of a pumped well can extend for long distances. Consequently, the cones of depression from multiple wells can overlap and the combined interference can add up to an appreciable amount. In fact, seasonal fluctuations in water levels Exhibit 1t Page a 15 of Matthew Ringstad October 12, 2005 Page 2 of 5 observed in wells in the Redmond area are a consequence of annual groundwater extractions and the combined interference of many wells. Despite this short coming, for the reasons discussed in the Hydrology Report, the potential interference on neighboring wells will likely be small. In summary, my local experience leads me to believe that the groundwater resources exploited by neighboring wells will not be adversely affected by pumping approximately 2,300 acre-feet per year at the proposed resort. Estimated Build-out Water Needs The original demands for the project assumed 1,280 gallons per day (gpd) peak usage for single-family homes. This was adjusted to 678 gpd in Revised Table 1, Estimated Build-out Water Needs for Preliminary Planning, September 28, 2005 (Ex. B-1.66). This is a significant reduction in estimated residential water demand which appears to be based on a "planning cushion" used in the original estimate that is not explained in detail. Reducing the residential water needs by about 50% demands more documentation. If the water needs estimate is low then the amount of mitigation water discussed below is too low. Potential Impacts on the Deschutes River Flows A principal issue with the project relates to the potential for groundwater extractions to impact flows in the Deschutes River. Prior to groundwater resource development, an aquifer will be in a state of dynamic equilibrium where total recharge and total discharge balance. When a well is pumped, the water discharged from the aquifer is initially derived from storage. After a time, the cone of depression surrounding a pumped well expands until it is large enough to capture groundwater flow equal to the amount of water being pumped from the well. Eventually, a new equilibrium condition will establish itself in the aquifer, so long as total discharge does not exceed total recharge. A consequence of this new equilibrium condition is that natural discharge from the aquifer must be reduced. In the western states that adhere to the prior appropriation water doctrine, this capture of natural discharge is considered to be a beneficial use of the resource and is encouraged. However, groundwater in the Deschutes basin discharges to the Deschutes River in some regions and comprises an important component of the baseflow of the river. Portions of the Deschutes River enjoy status as a scenic waterway where the "highest and best use of the water" is considered to be recreation, and fish and wildlife uses, so that any reduction in the inflow to the river is undesirable or not allowed. Mitigation of the potential effects associated with the project's water supply program is a requirement of a permit from the State of Oregon to develop groundwater as a source of supply in the Deschutes Basin. The proponent has proposed to mitigate the effect of their groundwater capture by dedicating 942 acre-feet of surface water to in-stream flows. The amount of "mitigation water" is equal to the estimated consumptive use of the project. The State of Oregon's mitigation policy assumes the mitigation methods will be effective and the appropriation process does not require any kind of analysis to assess whether or not the efforts will be effective. However, it makes sense to look at this issue in detail for a project of this size, especially in light of the revised residential water use discussed above. The project's proponents omit any rigorous analysis of the effectiveness of their specific mitigation strategy. In their comments to the Conceptual Master plan, the Bureau of Land H:1Projects-Active12005~APOL005-001 Thornburgh Resortlmr letter 10-12.05.doc Exhibit 14 Page _L~ of aa.3 Matthew Ringstad October 12, 2005 Page 3 of 5 Management questioned whether the project's mitigation efforts will actually off-set the effects from pumping the groundwater aquifer." Of interest are: Where will the mitigation water enter the stream relative to where the groundwater captured by the project might discharge to the stream? For a mitigation program to be most effective, intuitively the mitigation water should be placed into the stream in the area where natural groundwater discharge occurs. How will the mitigation measures influence stream temperature in the area of interest? When will the mitigation water enter the river? Will it be distributed evenly throughout the year or during low-flow periods when it will be most beneficial? One way to examine the effectiveness of the proposed mitigation would be to run a modified version of the USGS groundwater flow model of the Deschutes Basin. The model could incorporate the proposed groundwater extractions by the project. While this is not a trivial task there are a number of commercially available graphical interfaces that facilitate this kind of analysis using an existing model. Waste Disposal Issues A combination of individual residential and commercial septic tanks and recirculating filters, in other words tertiary treatment, is proposed to treat wastewater from the project. The Thornburg Destination Resort Sewer System Master Plan (Hickman Williams & Associates, February 2005) indicated that the project proposes to disperse the filtered effluent by using it for underground drip irrigation or sanitary drain fields." The Hydrology Report states that a portion of the effluent is expected to percolate back to the aquifer as secondary recharge. I suggest that advanced tertiary treatment is more appropriate for effluent that is expected to make its way directly back to the aquifer. This higher level of treatment is particularly desirable because the highly fractured rocks and coarse gravels of the aquifer are expected to provide little attenuation of the effluent. While the Hydrology Report goes into some detail regarding aquifer transmissivity in order to evaluate potential impacts on nearby wells, it lacks a comparable technical discussion of the vertical hydraulic properties of the geologic formations overlying the aquifer. Because these vertical properties control the vertical migration of water from the land surface to the aquifer, they should have been addressed in the Hydrology Report so that it provides a complete description of the anticipated effects of the project. In fact, the amount of mitigation water for the project is dependant on the amount of secondary recharge that is assumed will reach the aquifer. The Supplement to Wastewater Disposal Plan and Use of Reclaimed Water (Newton Consultant's Inc., September 27, 2005: Ex. B-1.62) indicates that the treated effluent will be used for golf course irrigation during the peak use season. This program is a step in the right direction compared to the original master plan because it will reduce the dependency on groundwater to irrigate the golf course. However, no details of the program to dispose of the effluent during the non-irrigation season were offered. Of particular interest are the locations of the sanitary drain fields relative to the water supply wells. H:1Projects-Active%20051APOL005.001 Thornburgh Resorftr letter 10-12-05.doc Exhibit 4 Page a of ~a Matthew Ringstad October 12, 2005 Page 4 of 5 A portion of the secondary recharge to the aquifer will originate as treated sewage effluent. One of the most important topics of environmental engineering and hydrogeology in this day and age is the fate of pharmaceuticals and endocrine disrupters that are commonly found in effluent. ECOLOGIC has recently been commissioned to undertake a pilot study to examine the fate and transport of these constituents in the subsurface environment. Based on the literature and our limited experience, the same physical characteristics of the subsurface geologic materials that favor the percolation of the effluent and secondary recharge to the aquifer will limit natural attenuation of these constituents. We would expect these constituents to find their way to the aquifer along with the water. However, there is no mention of this issue in the Hydrology Report. Recommendations At the very least, before the project is approved, two issues demand further attention. These are: An analysis of the fate of the treated sewage effluent in the groundwater. As a minimum, specific issues to be addressed should include: • Where are the disposal areas relative to the production wells? • What is the quantity of the effluent that will recharge the aquifer? • What is the travel time for the effluent to migrate to the production wells from the disposal areas? • What are the potential impacts on groundwater quality? The proponent indicates that the details of the waste disposal methodology will be explored with the Oregon DEQ. However, it is in the best interest of the proponent and the County to answer these questions at this time so that potentially fatal flaws in the waste treatment/disposal program can be identified early in the process. A closer look at the build-out water demands. The "planning cushion" used in the initial assessment of build-out water demands provided in the Hydrology Report needs to be explained. The revised demands as well as the actual amount of water that should be dedicated to in-stream flows needed to mitigate groundwater extractions by the project are dependent on this so-called cushion. If this project is approved, I recommend the following, as a minimum. Monitoring wells should be installed between the project water supply wells and neighboring wells before construction of the first phase of the project begins. Water level data loggers should be installed in each of these wells as soon as practicable so that baseline conditions in the aquifer can be established. Once baseline conditions are documented, thresholds can be established regarding potential impacts on water levels in the vicinity of the project. For the first phase of the project, water levels should be monitored hourly. Data should be retrieved and hydrographs updated quarterly. The monitoring frequency should be reviewed after the first phase has been completed and data analyzed. The observed water level trends should be compared with predicted H:1Projects-Activel2005\APOL005-001 Thornburgh Resortlmr letter 10-12-05.doc Exhibit 14 Page 2t of as Matthew Ringstad October 12, 2005 Page 5 of 5 water level changes. If the project results in unexpected water level declines, some type of mitigation should be considered. While this seems like a daunting task, it is fairly easy to accomplish. I oversee a number of monitoring networks with more than a dozen data loggers in each network. One has been in place for four years. In each case, the monitoring data have provided real insight into the effects of development on the groundwater resources. 2. Monitoring wells should be installed in the disposal areas and between the production wells and effluent disposal areas. The wells should be equipped with dedicated pumps to facilitate the collection of water samples. A minimum of eight sample events should be conducted prior to initiating effluent disposal at the property so that background water quality can be clearly established according to accepted statistical criteria. Samples should be analyzed for: a. Major anions and cations. b. Trace metals. c. Pharmaceuticals and endocrine disrupters. 3. A rigorous analysis of the mitigation measures should be undertaken so that the probable effectiveness of the proposed measures can be evaluated. Granted, the Oregon DWR mitigation program does not require such an analysis, but land use planners should be provided with some assurance that the land use decisions are based on scientific principles. 4. The project is to be completed in phases. Approval of the project should be conditioned on review of the monitoring data acquired during the initial phase. Subsequent phases can proceed after there has been a finding of no impact or the effectiveness of mitigation has been documented. I trust that my comments will be viewed constructively by all parties. If you have any questions or comments, please do not hesitate to contact me. Sincerely, Dale C. Bugenig, R.G. Chief Hydrogeologist cc: Dr. Clyde Ringstad H:1Projects-Active120051APOL005-001 Thornburgh Resortkmr letter 10-12-05.doc Exhibit H Page / of aA CO:L GIG Consulting Engineers SOURCES OF INFORMATION Gannett, M.W., K.E. Lite Jr., D.S. Morgan, & C.A. Collins, 2001. Ground-Water Hydrology of the Upper Deschutes River Basin (excerpts): Water Resources Investigation Report 00-4162. Gannett, M. W., M. Manga, & K. E. Lite, 2003. Groundwater Hydorlogy of the Upper Deschutes Basin and its Influence on Streamflow. Hickman Williams & Associates, Inc. February 2005. Thornburg Destination Resort Sewer System Master Plan. Hickman Williams & Associates, Inc. February 2005 Thornburg Destination Resort Water System Master Plan. Newton Consultants, Inc. February 2005. Hydrology Report Water Supply Development Feasibility Proposed Thornburgh Resort. Newton Consultants, Inc. February 2004 Water Management & Conservation Program Thornburgh Resort. Newton Consultants, Inc. September 27, 2005. Thornburgh Supplement to Water Conservation Plan (Exhibit B-1.61). Newton Consultants, Inc. September 27, 2005. Thornburgh Supplement to Wastewater Disposal Plan and Use of Reclaimed Water (Exhibit B-1.62). Other Sources Application for a Permit to Use Groundwater for Thornburgh Utility Group, LLC. Central Oregon Irrigation District Groundwater Patron Policy. Conway, M. E-mail correspondence from to Kevin Harrison regarding Water Rights. Deschutes Community Development Department, July 2005. County Planning Division Staff Report. French, D., August 2005. Letter from Water Resources Department to Anne Corcoran Briggs, Hearings Officer Deschutes County Regarding Thornburgh Resort Water Rights Application. Livingston, P.,, August 2005. Letter from of Schwabe, Williamson & Wyatt to Anne Corcoran Briggs, Hearings Officer Deschutes County regarding Thornburgh Resort Company Destination Resort Application. Exhibit 14 Page A;V> of d Oregon Judicial Department Appellate Court, May 2005. Opinion: Petitioners v. WATER RESOURCES COMMISSION and DAN THORNDIKE, Chairperson, Water Resources Commission. Purchase Agreement for Temporary Groundwater Mitigation Credits Ringstad. C., August 2005. Fax correspondence to Devin Hearing regarding Thornburgh Resort Development. Schwabe, Williamson & Wyatt, P.C. February 2005 . Thornburgh Resort Burden of Proof Statement for Conceptual Master Plan and Conditional Use Application for Destination Resort. Schwabe, Williamson, & Wyatt. Excerpts from Memorandum of Applicant in Response to Public Comments. United States Department of the Interior, August 2005. Letter to Devin Hearing of Deschutes County Community Development Department including the Bureau of Land Management comments to CU-05-20. Exhibit W Page aL of as C7, cD O T • 40 m N C co lzt) ~ 07 cl O ch C\i - N~ ' 1~1 o N U ~l y C N O c0 cq . O d7 C'T CIIJ dv vZ c`z ' - IA m Cl) L co ~ O O ~ N _r O a 100, c:) co CD CD c WA CD r C) C)~r co ~2 iC IA O Cy.~..V erl eFl ~ r ti 6 C VJ CO O - CL) cm N , T r L C\J Cn G ~ ' CO C/D 01), O - 40 IA 0 _ cc o 0 ma c. o i y LV C n C, F- i. ~E °E ~ O. °D co'' d°1c Q MO o c R R ~ R 3` 0 E o o c _ i o o R ~ ~ ~ ' c a•°i - E 3 a~a c'a z c° • d cz a a cm a o ~o N wO Q- c a~i o'3 o 0 C Q. M Q ca OC cv OC cq _ bA v ' C bA ~'o t!4 LO CL pq (2) -54 cu 0 vi u' ob Mw 0, - o Or- -0 1 64 6~ o 0 00 Q6) CO icts°'bv s;0WOJ ' mob ,d as 15 CD IA u I.L) 046. 0 En Cd t ~ w p„ tom. y o U v ~ bA ~ as (,v cm, 5 a) 0 ;J.2 0 C,3 0,72 y 0 0 0 vi ~y C-) 04 0 14 cu 0 70. 0) l•~'~ 0 ~y b3` N v v 7 ~ F'~i tom. °U Q. ~ Cd 4.12 m -C. Q Exhibit Page a of a: BUSINESS THE BULLETIN • Monday, December 19, 2005 B5, Rent Continued from 131 The study surveyed private lo- cal housing markets in every state, metropolitan area and county in the United States. In Central Oregon, the average affordable rent for a two-bedroom unit is about $607 per month. For someone to afford this rental rate and utilities without paying more than 30 percent of their income, they must earn roughly $24,293 yearly. Assum- ing a 40-hour work week, 52 weeks per year, he or she would need to make $11.6.8 per hour for a two-bedroom home. . The Oregon average for wages needed to afford two-bedroom housing is $13.12 per hour. But among Central Oregon renters, wages are significantly lower than that, according to the study. The average renter hourly wage is $9.76 in Central Oregon, compared to $11.07 for the state, according to 2004 data, the most recent available. Based on those numbers, approximately 37 per- cent of renters cannot afford two- bedroom housing. The study results show the im- portance of creating affordable housing for individuals who make less than $10 per hour, Ozrelic said. "There is no question that we need affordable housing (in Cen- tral Oregon)," she said. "People are moving here every day and not all of them can buy a house, so they need a place to rent." For the first time in the study's history, no renter making mini- mum wage - in any state - could afford average rental prices. The Oregon minimum wage is $7.25 per hour and will increase to $7.50 per hour Jan. 1. That means no Central Oregon residents making minimum wage would be able to afford rental housing without financial assis- tance, based on the study. A min- imum-wage worker would have to work more than 65 hours per week, 52 weeks per year in order to afford housing. The study draws a distinction between "affordable" rents for existing renters and the general population. In Central Oregon's general population, most people make more than the minimum required to afford housing, according to the Oregon Employment Department. The 2004 average hourly wage in Deschutes County was $14.42; $14.76 in Crook County; $13.26 in Jefferson County; and $17.08 in Oregon, according to regional economist Steve Williams' most recent data. Those wages are significantly higher than the $9.76 per hour average for renters, which is why Ozrelic says an increasing num- ber of renters have roommates. Four of her 11 rental units are rented to roommates. "What I'm seeing as a rental owner is I'm getting more room- mate situations," Ozrelic said. "'That's how people are affording rents with minimum-wage and part-time jobs. If you can find good roommates, you can afford to live in a nice home and pay $1,000 a month." Ozrelic said that while housing sales prices have soared in the past year, rental rates in Central Oregon have remained relatively flat. That's because the rental de- mand hasn't changed, she said. The median sale price for a Bend home is up 3 percent since October, from $302,000 to $311,000, a Steven Scott Realtors representative said last week. But since Jan. 1, the median has in- creased 37 percent, up from $227,000. Five years ago, two-bedroom apartments in Central Oregon rented for an average of $525 per month, Ozrelic said. Now, the av- erage is $592 per month. A du- plex went for an average of $559 per month five years ago and now costs $671, she added. "That's not much of a change, considering what house prices are now," Ozrelic said. "We have a fairly steady supply and fairly steady demand for rental hous- ing. I don't see them changing dramatically." Ozrelic said rental owners can make the rental market more af- fordable by being more flexible about roommates. She said land- lords call her on a daily basis ask- ing whether to allow multiple roommates in their units. Some landlords may worry that accepting roommates means accepting younger renters with financial instability and little rental history, she said. But land- lords should not expect the worst from multitenant households. "Landlords need to be a little more open to not seeking the nu- clear family (as renters)," she said. "They need to be open to other options, like roommates or extended families." As Central Oregon housing prices continue to rise, Ozrelic said the rental market will stay strong and steady. "Rentals will always be needed no matter what happens with the housing market," she said. "There will always be people who want to rent." Anna Sowa can be reached at 541-383-0304 or asowa@bendbulle tin. com. Exhibit kk Page of tea?