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2008-31-Minutes for Meeting December 17,2007 Recorded 1/11/2008
DESCHUTES COUNTY OFFICIAL RECORDS NANCY BLANKENSHIP, COUNTY CLERK ICJ ~OQ~'31 COMMISSIONERS' JOURNAL 1111111 11111 1/11/2008 03;08;33 PM 111~11111111~~~~ 2008-33 Do not remove this page from original document. Deschutes County Clerk Certificate Page If this instrument is being re-recorded, please complete the following statement, in accordance with ORS 205.244- Re-recorded to correct [give reason] previously recorded in Book or as Fee Number and Page 0 { Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org MINUTES OF BUSINESS MEETING DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, DECEMBER 17, 2007 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Michael M. Daly, Dennis R. Luke and Tammy Baney. Also present were Dave Kanner, County Administrator; Erik Kropp, Deputy County Administrator; Joe Studer, Forester; Judith Ure, Administration; Timm Schimke, Solid Waste Department; Tom Blust, Road Department; Tom Anderson, Community Development Department; Jeff Emrick, Mental Health Department; and approximately twenty other citizens. Also present was Clemens Schenk of News Channel 21. Chair Daly opened the meeting at 10:00 a. m. 1. Before the Board was Citizen Input. None was offered. 2. Before the Board was Consideration of Approval of County Administrator's Signature of Document No. 2007-625, a Contract for Services to Treat Wildland Hazardous Fuels on County-owned Property (Fremont Canyon). Joe Studer gave an overview of the item. He said this kind of work usually costs over $1,000 per acre but this contract is for $112 per acre. Students of COCC and OSU have worked on this project for three consecutive years. LUKE: Move approval. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 1 of 26 Pages 3. Before the Board was Consideration of Signature of Document No. 2007- 609, an Intergovernmental Agreement with the Oregon Department of Human Services regarding Chemical Dependency Organization Contracts. Jeff Emrick explained the reason for the contract and said that there have been no substantive changes in the agreement since the last one. LUKE: Move approval. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 4. Before the Board was Consideration of Signature of Documents No. 2007- 612 through 2007-622, Towing and Storage Contracts. Sue Brewster of the Sheriff's Office and representatives of Consolidated Towing and Tired Iron came before the Board. Ms Brewster stated that this is separate from the contract for evidence tows. It is now a two-year contract, and includes a pricing and rate structure and provisions for criminal background checks. It took a lot of work between the Sheriff's Office and the towing companies to come to agreement. Rebecca Brown added that the Sheriff provides identification for the employees and requires inspections of tow trucks and facilities. Commissioner Luke asked if there was any opposition to the agreement. It was explained that there is always some opposition when there is a large group of business owners, and some want to charge more. This makes it equal for all of them; they met and agreed on the numbers during lengthy negotiations. Chair Daly asked if anyone wanted to testify in this regard. None was offered. BANEY: Move approval. LUKE: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 2 of 26 Pages 5. Before the Board was Consideration of Signature of Order No. 2007-167, Accepting the Road Improvements and Engineer's Report and Setting a Pubic Hearing Date on the Final Assessment for Improvements in Manzanita Local Improvement District. Tom Blust stated that this is the last local improvement district in the pipeline before the moratorium went into effect. The hearing will be held on January 23. The dollar amount came in a little bit higher than estimated, so the County will absorb some of the engineering costs. LUKE: Move approval. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 6. Before the Board was Consideration of Chair Signature of a Notice of Intent to Award Contract Letter for the Household and Conditionally Exempt Generator Hazardous Waste Management Program. Timm Schimke said that there will be four collection days a month now. Two bids were received, both from reputable companies. One had a significantly lower labor rate. LUKE: Move approval. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 7. Before the Board was Consideration of Signature of Order No. 2007-169, Transferring a Solid Waste Collection Franchise. Mr. Schimke gave an overview of the item, which is a franchise transfer from Brownrigg to Waste Connect, a large national firm. Appropriate background checks were done. Chair Daly asked if anyone wanted to speak on this issue. No testimony was offered. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 3 of 26 Pages LUKE: Move approval. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 8. Before the Board awes Consideration of Chair Signature of Document No. 2007-630, an Intergovernmental Agreement with the Oregon Department of Transportation for a Transit-related Equipment Purchase. Ms. Ure said this is a Central Cascade Lines grant from the State, with the County acting as a pass-through. Commissioner Daly observed that they are providing a much needed service in the La Pine area. LUKE: Move approval. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 9. Before the Board awes Consideration of Chair Signature of Document No. 2007-631, an Intergovernmental Agreement with the Oregon Department of Transportation for Specialized Transportation Services. Judith Ure said these are pass-through contracts; this gives COCOA a way to provide services in the Bend metro area. Some funds have to be run through the County and can't go directly to the providers. The project will be handled by COIC. LUKE: Move approval. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 4 of 26 Pages 10. Before the Board awes Consideration of Signature of Document No. 2007- 041, an Intergovernmental Agreement with Lake County for Building Inspection Services to be Provided by Deschutes County. Tom Anderson gave a brief overview of the item. The work is provided on an as-needed basis. LUKE: Move approval. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 11. Before the Board awes Consideration of Approval of a Satisfaction of Conditions of Approval Agreement for a Site Plan Approved in 1995 (File # SP-95-31). Paul Blikstad stated that it appears all of the conditions of approval have been met and recommended that the document be approved. The conditions related to access, paved parking and other standard requirements. LUKE: Move approval of the agreements. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 12. Before the Board awes Consideration of Signature of Document No. 2007- 632, a Deed of Dedication for a Minor Right-of-Way Adjustment for Alpine Lane. Chris Bedsaul gave a brief overview of the item, which has no policy implications. LUKE: Move approval. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 5 of 26 Pages 13. Before the Board awes Consideration of Signature of Document No. 2007- 633, Board Findings and Decision on an Appeal of the Hearings Officer's Denial of File No. MP-07-3 (Applicant: Hopp). Commissioner Daly asked if the roads have to be constructed in advance; Ms. Craghead replied yes. Commissioner Daly said that it is unknown where the residence might be so it doesn't make sense to require a driveway at this point. Commissioner Luke stated perhaps the purpose is for a parcel not to become landlocked. Ms. Craghead said that the Board had conditions of approval included in the decision and this is one of them. She also said that this parcel could be affected by Measure 49. Commissioner Luke said landlocked parcels can be a problem and sees the reason to require this. BANEY: Move approval. DALY: Second. VOTE: LUKE: No. (Split vote.) BANEY: Yes. DALY: Chair votes yes. 14. Before the Board awes Consideration of Whether to Hear an Appeal of the Hearings Officer's Denial of a Subdivision (Applicant: Kennel). Laurie Craghead stated that the applicant has asked for a 90-day continuance to find out how the claim will be affected by Measure 49. LUKE: Move approval of the continuance for ninety days, per Order No. 2007-160. (March 24, 2008 is the closest meeting date to the ninety days) BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 6 of 26 Pages 15. Before the Board awes Consideration of Signature of Document No. 2007- 610, an Improvement Agreement related to the Phase III Plat of the Tetherow Destination Resort in regard to Required Infrastructure. Ms. Craghead stated that the developer is not Arrowood; it is Cascade Highlands. The agreement has approximately the same terms as previous agreements for Tetherow. The applicant has already obtained land use approval. BANEY: Move approval. LUKE: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 16. Before the Board awes Consideration of Signature of Order No. 2007-629, to Call up for Review the Westside Consortium Development Agreement Extension Requested by Arrowood Tetherow. Ms. Craghead said that this agreement relates to required improvements for the development. This item is also before the City of Bend Council. Most of the requirement was for money to be deposited; other terms and conditions need to be clarified. The Board signed the development agreement in the first place so it is up to the Board to hold the hearing. Commissioner Baney disclosed that she lives in Sagewood, which is part of the development. LUKE: Move approval. LUKE: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 17. Before the Board was a Public Hearing and Consideration of Whether to Extend the Westside Consortium Development Agreement. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 7 of 26 Pages Laurie Craghead stated that this is a land use hearing, and parties have to raise any issues at this hearing or cannot do so on appeal. The applicant would also have to raise any constitutional objections at this time. The staff report is given first, followed by testimony from the applicant, the proponents and opponents, then rebuttal of the applicants. It is a de novo hearing and any evidence can be submitted, and anyone can ask for a seven-day continuance, followed by seven days for the applicant to rebut any new information. LUBA would hear any appeals in the future. The hearing is quasi-judicial, so the Commissioners have to disclose any bias, conflicts of interest or prejudgment. Commission Luke said he has driven through the development; he was not involved in the formation of the original agreement. Commissioner Baney said she lives in Sagewood, which was noted in some of the documentation. She said she's not a member of the association there. Commissioner Daly had nothing to disclose. There were no challenges from the audience. Laurie Craghead pointed out that an e-mail from Nunzie Gould was received today. Tia Lewis, an attorney representing the applicant, Tetherow, gave a brief history of the development agreements. In 2000 the City Hearings Officer was denying developments because infrastructure was not in place. The large landholders got together to work up a solution for the westside transportation facilities. They became the Westside Consortium, and hired transportation engineers to work with the City to correct existing deficiencies and to mitigate future developments. Cascade Highlands was different, as it was located outside of the City of Bend. There were seven development agreements, of which six do not involve the County. A dollar amount of $500,000 was to be paid to the City towards transportation improvements. This was based on the number of trips related to the development at buildout. The original development has been approved, and there has been no increase in density. Traffic was projected out for twenty years. By law at the time, development agreements could only be for seven years; since that time the law changed and allows more time. They also agreed to pay SDC dollars to the City, even though the property is located in the County. Final master plan approval was given in 2005; she asked that the agreement be extended to 2012. The application only applies to City transportation improvements. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 8 of 26 Pages Commissioner Luke asked if the City has the funds, why does the development agreement need to be extended. Commissioner Baney asked why this has taken so long to go before the Board. Ms. Lewis said she disagrees slightly; she views these as land use decisions. The expiration date would be based on the date of the City agreement. The new agreement could be under the same terms as the old one. As far as the timing, the property changed hands, and there were several land use decisions that had to be addressed first before this could be. Commissioner Baney asked if they could wait to hear what the City decides. Ms. Craghead stated that this hearing could be continued to a date certain to take that into account. Ms. Lewis stated that the City could comment on the situation at today's hearing. She asked that a provisional decision be made until the City has a consensus. The City will want to know that the County is comfortable with compliance to the land use portion. She submitted a letter from Kittleson and Associates, stating the studies are still sound; as well as water and sewer agreements and payment of City SDC's. The City has traffic counts for the intersections. She said that they paid money to mitigate the trips and none are generated at this time. The opposition will try to show that the intersections are failing, but this is due to other developments that have been allowed by the City and put in since this one was approved. John Leitz of Arrowood testified. He said that at the time his company arrived at project in 2001, the 9/11 tragedy affected the purchase and it took a couple of more years for the financial market to recover. The development agreement was an important consideration as well. They designed the entire project around the development agreement. The intent seemed straightforward. The City of Bend required development agreements as well, and it was challenging to reach agreement between the two government entities. All of the roads had to be built at a cost of over $6 million. City sewer and water were also required, and SCD fees were paid for those. At this point they have invested about $15 million. It took a long time for these agreements to be completed. In regard to the traffic study, all entities agreed to it; and the City already received the money. As the developers, they believe the agreement was sound and solid. They did all that was required, and more. They ask that the agreement now be honored. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 9 of 26 Pages Ms. Craghead stated that Miles Conway pointed out Arrowood is one of the successors. There are a couple of other developers involved but the extension would not apply to them unless they agree and their names are added. No other proponents offered testimony. Ed Fitch, representing the Broken Top Community Association, said that he is familiar with the 1999-2000 formation of the agreement. The overall view as stated is correct. There were detailed negotiations and discussions at the time. Each was based on certain assumptions between private/public entities; he feels that the main assumption was that the development was to occur right away. They were supposed to file a land use application within a year. Circumstances change over time, and assumptions made in 2000 may not hold true later. He agrees with County Counsel that this agreement can't be extended as it has expired; there needs to be a new one and impacts should be examined again. A traffic analysis has been done by Ferguson & Associates stating that this development will cause road failure and adverse impacts in other areas. None of this could be reviewed during the land use process as the Hearings Officer felt the development agreement controlled. He understands that Tetherow spent a lot of money, but most was within their property. He feels there is a need for the County and City to reexamine the agreement. There could be a dual application with the City and County and perhaps one Hearings Officer could hear the case for both and avoid the dual process. Commissioner Luke stated it was subject to timely approval, but wasn't signed until thirty days before the development was to begin, so there was no way for them to start building that quickly. He also pointed out that an SDC fee is based on their impact on an intersection, based on the total number of vehicles. Some developments are not built for a long time. They contribute not to the total cost of an intersection but towards their impact. This hasn't changed - the impact is the same and they already wrote the check. Mr. Fitch responded that they didn't contribute to some of the intersections in question, nor were they all analyzed. Most of the money went to build the bridge. Commissioner Luke said that the City could have used it for other locations. No city collects an SDC for a specific location; they determine where it is needed. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 10 of 26 Pages Bob Brell, who lives in Bend on Bachelor View Road and who represents the Century West Neighborhood Association, said the Association was not formed until about three years ago. There are approximately 3,000 property owners in Broken Top, Sagewood and other locations that will abut Tetherow. He is concerned about the livability in the area. He noted that all they have seen about the resort appears to be first-rate, and the people are very community oriented. However, he is concerned about the livability issues resulting from the resort and massive development in the general area. It all contributes to the problem. He is concerned about the failure of intersections; in particular the roundabout at Century and Mt. Washington, and the traffic going to and from Mt. Bachelor. Tetherow has not yet impacted the intersections, and others will follow. Commissioner Luke asked if there is no extension and paying SDC's to the City was not a condition of approval, will they still have to pay the City. Ms. Craghead replied that she isn't sure if it was a condition of approval. There were probably findings that the traffic impacts had been addressed prior to master plan approval. The applicant maintains that they have held to the conditions of approval and would not be adding to the traffic impacts. They paid their share of the traffic impact costs into a pot of money that the City used how it wanted. They had no say on how the City used the money. They paid SDC's to the City even though the property is located in the County, as a part of the regional planning process. Nunzie Gould said the issue is what is the cost and infrastructure needed at the time it is built. She asked what Deschutes County is doing to analyze this type of ting. The development agreement in 2000 was based on mitigation and costs needed at the time. It is clear there is no possibility to escalate that cost now. The applicant doesn't want to be held to a higher price tag even though the cost has changed. The density may not change but the infrastructure costs and needs are different. The County has a responsibility to study this. She pointed out that the County timber payments have not been secured, and asked what Deschutes County is doing to help this situation. The lands west of the City of Bend are zoned for destination resorts. She asked if any of the consortium members are holders of those lands. She asked if the extension affects other members or if it is just for Tetherow. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 11 of 26 Pages Commissioner Baney stated that Ms. Gould's recent correspondence is part of the record. Ms. Craghead replied that this resort is the only one located in the County and not in the City. The County has no authority to deal with the others. Commissioner Luke pointed out that Century Drive is a State highway and the rest are City streets; the County roads are not impacted. Ms. Gould said that she attends the COACT meetings and there are tri-county ramifications of destination resorts. She said there are options to deal with the impacts of regional transportation systems. One is for the County to generate SDC's for additional funding for infrastructure. Another idea is a potential revision to Goal 8 to refocus development back into the urban growth boundaries. The siting of Tetherow is different in that it has a lot of reliance on the infrastructure that serves the UGB areas. Ms. Gould introduced a letter and response from Central Oregon Land Watch to ODOT dated November 8, with a response dated November 29. It discusses a cooperative improvement agreement between ODOT and destination resorts. Developers don't want to be responsible for what comes later. She asked what the Board of Commissioners is doing with its transportation department, ODOT and other entities to solve this problem. Commissioner Luke stated that the County has no authority over roundabouts and roads within the Cities or those under ODOT. The only roundabout the County regulates is the one outside Sunriver. It is not the County's fault that the City didn't require a better design for its roundabouts when they approved other developments. Most visitors to that area travel on city roads or the State highway. The County has no authority over City SDC's. The County is already studying SDC's but those would be only for County roads. Jim Guild, a general contractor, testified that the destination resorts didn't cover all their basis and want more. He said that the Commissioners always want to argue with Ms. Gould. The improvements need to be financed. The City does not give the neighborhood associations any recognition of being impacted by traffic. Whether or not it is a city road, it is still part of a transportation system and someone has to take care of the improvements. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 12 of 26 Pages He asked why destination resorts are needed. Pronghorn is contesting its tax bill even though they bought land at $800 an acre and are now selling it for $1 million per acre. They are not losing money on these developments. He noted that SDC's in the County are a lot less than the City's. Commissioner Luke pointed out that the County does not yet have any SDC fees in place. Mr. Guild said that they are needed. Tetherow wants to be in the County but wants City services. The City is in dire straights and needs transportation money. There needs to be an objective group study this situation. He wondered why transportation studies are different when different companies do them. Tim Conway, for the applicant, testified that they should be able to get other property owners in the development to sign the agreement. There would be no precedence set with other development agreements, since this is the only one the County was involved in. What is unique is that it was approved through a final master plan so the final impacts on the system were known. They are locked into the process and can't go above that number. In regard to the contribution to the bridge, the City took the money and used it for that purpose. Regarding future SDC's, it might be a great idea but is not one that is before the Board today. The question is the impact of Tetherow and whether they paid for it. They did and it was used by the City for transportation purposes already. The developer has constructed Skyliner Ranch Road through the development, which will be a major County transportation link. It was constructed to a higher than County standard and should operate similarly to Mt. Washington Drive, and may help with the transportation problems seen today. This is a good example of a private/public development agreement. It is easy for someone to say that intersections that didn't even exist at the time were not considered. The developer has already contributed and should not be asked to fix something they didn't cause. There is no one at Tetherow yet so that's not where the current problem originated. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 13 of 26 Pages Keith Dagaciono, an engineer, said he had talked with representatives of Ferguson. They did not write the analysis for this purpose. Kittleson says the roads are operating effectively now. Mr. Conway said that the agreement is a win-win for the County and City. The destination resort approval process is long and costly, and they have worked at it diligently. He feels their impacts have been addressed and they have paid their share. Statute was different when the contract was begun. The extension is a precautionary measure if it is appealed to LUBA. Mr. Dagacino stated that all of the other consortium projects contributed to the intersections. All were eligible for SDC reimbursement except Tetherow. In regard to the information submitted by opponents in regard to Broken Top, the document was prepared over a year ago for the Metolius/Mt. Washington intersection only. It is only an opinion document with a lot of estimates, which are not accurate based on trip distribution. The Kittleson study and supplements are fully supportive of the development. The Board and County Counsel then discussed the timing and when to make a decision. Mr. Conway stated that the County will have to sign before the City does. Commissioner Luke stated that if the City supports it, he will as well. The City is the most impacted. Commissioner Baney said that she is not in favor of extending the old contract; she thinks a new one is needed. However, she does not want to prolong the issue. Mr. Conway stated that the application has been filed but the City won't commit to a time frame. LUKE: Move that the public hearing be kept open until the City makes a decision, by the January 23 business meeting. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 18. Before the Board was a Public Hearing and Consideration of First and Second Readings, by Title Only, and Adoption of Ordinance No. 2007-029, Clarifying Various Provisions of the Outdoor Mass Gathering Permits, and Declaring an Emergency. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 14 of 26 Pages Laurie Craghead said that this adds some clarifying language to the Ordinance. It is not a land use action. If not received within 90 days of the event, the permit fees will double. Health, Environment Health and the Sheriff's Office have reviewed the document and made recommendations in this regard. Sue Brewster stated that the 90 days also helps the event organizers with planning. The Sheriff's Office is requiring criminal histories be run as well. Commissioner Baney asked about potential noise problems. Ms. Craghead stated that this is a different issue. Sheriff Blanton said that it a noise permit is always needed if they are going outside of the parameters of the mass gathering permit. Chair Daly opened the public hearing. Being no testimony offered, he closed the hearing. LUKE: Move first and second readings by title only of Ordinance No. 2007- 029, declaring an emergency. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. Chair Daly conducted the first and second ridings of the Ordinance, by title only. LUKE: Move adoption. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 19. Before the Board awes Consideration of Approval of County Administrator's Signature of Document No. 2007-551, an Agreement with Steele Associates/ KMD Justice for Design Services for the Adult Jail Expansion Project. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 15 of 26 Pages Dave Kanner said that on August 15 the Board gave approval to do a solicitation for an RFP. It was advertised nationally and three responses were received. The selection committee included three people from within the County and three other citizens. The requirements laid out in State law were followed. The selection was made based on qualifications, with the fee to be negotiated after the selection. KMD was the winner and the contract has entered negotiations. Dennis Tooley of Redmond asked why the Board does not consider a regional or at least a tri-county jail. The best answer he can come up with why this hasn't been done is that this is based on turf issues and not common sense. Jefferson County has a lot of jail space and Crook County is using some of it now. The most frequent answer to his question is the size of the jail and the inconvenience of travel. This could be remedied with technology, and a passenger van could be used to get prisoners back and forth. Rather than trying to figure out an idea to build the jail, he feels the County should come up with the money to pay for it, and divide it up between the counties. Maybe privatization of the jail would work. He said he hasn't heard this addressed and has learned of no satisfactory response on why it would not work. There seems to be no real plan on how to pay for the new jail. He has spoken to people in both counties and has not yet received a negative response. Commissioner Luke stated that the County brought Laura Pryor in to do a demonstration on a regional jail to all three counties. Deschutes County has far more prisoners than the others. A regional jail in a smaller county means a lot more transportation costs for the County. Sheriff Blanton stated that this was discussed initially over two years ago. No turf issues were involved, but there were a lot of issues concerning the regional jail concept. If all of the counties were in the same place and their needs were equal, it is a good idea. However, Crook County has no money for a jail and is renting space from Jefferson County. Their mistake is that their $1 million plus a year is not addressing needs down the road when Jefferson County is full. Jefferson County has 165 beds and is not using them all because of staffing problems. They charge Crook County $75 a day per bed, not including medical costs. No one is sure about recidivism issues. He talked with the Jefferson County Undersheriff about this. If staffing was adequate, the cost per day would go up. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 16 of 26 Pages Commissioner Baney added that it is a good idea in theory, but it is a frustrating issue because of different needs. When the beds are gone, something will be needed. Deschutes County funds cannot be used by other counties. Deschutes County is willing to pay for operations. State 1145 funding was collaborative and the work center had to be closed because Jefferson and Crook County pulled out their inmates. Sheriff Blanton added that there was an agreement in place, but the County lost 90 beds when they pulled out. Mr. Tooley stated that he doesn't think all of the options have been considered. He feels there should be a better, more fiscally responsible way to handle the problem. Commissioner Luke said that it took over two years with citizen involvement to develop the plan for the jail. There was a tri-county agreement in place for the work center. Jefferson and Crook counties pulled out their 1145 dollars to fund the Jefferson County jail, and the work center had to be closed. The regional concept was explored earlier and the other two counties were not interested. Commissioner Daly said that he recently put out a media statement regarding construction of the jail. He read it into the record. (A copy is attached.) He added that he feels he did his homework. It is a complicated issue, even for him with his twenty years in construction. Three employees had no background in this type of work. Some on the committee indicated it might not have been a fair process. It should have been fair, unbiased and should raise no questions. Commissioner Luke stated that he also did his homework. He has an e-mail message from Lombard Conrad that says their fee would have been 7.5% plus reimbursables. That is $2.25 million, which would put it higher than the current contract. It is the same for this process as for architects and engineers, and was not unfair. Ruth Jenkin has been in corrections for twenty-eight years and knows jails. Susan Ross has been handling these types of projects for many years. Jim Ross is a good business manager for the Sheriff's Office. Mike Morgan, the Jefferson County Administrator, was active in building the jail there. He talked with him for an hour, and although the firm that was selected was not his choice, he feels they do a good job. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 17 of 26 Pages Jacques DeKalb is a defense attorney, spent two years on the citizens' committee for the jail and was at every meeting. Ernie Mazorol, the Court Administrator, has been around for a long time. This committee was brought before the Board and all three Commissioners agreed on the membership. There has been a lot of public input over the past two years, and many options were reviewed. There is a real problem with jail space in Deschutes County. A letter signed by all three Judges has asked the Board to move forward on this. It will take a year to get plans done. It has been a good process over two years, and all ideas were considered. The taxpayers were not left out. He spent an hour talking with Mike Morgan, who was on the committee, and he said the process was fair. To impugn the motives of the committee members is terrible. They are upright, honest and did their job. He strongly disagrees with impugning their motives or character. Commissioner Daly said the proposal from Lombard was 6.5% of the construction cost. Commissioner Baney stated that, with all due respect, she disagrees that this is being rushed. She sat in a hearing in the same room before being elected and listened to testimony about losing sight of the public safety issue. There is a huge need and this is the best solution for a bad situation. People are being matrixed out at a rate that is not only embarrassing but with zero accountability. There is no hope that programs will work when this happens. The letter from the Judges says the need is now, and she strongly agrees. She said that the community has agreed to pay for operations of a permanent jail. She does not want a fire sale of County property since it is the taxpayers' money, but there has to be a way to come up with funds to pay the debt service. The last choice would be to go to the voters. She is greatly concerned about internal struggles voiced in public about issues regarding the safety of the community. The committee members were selected ahead of time, and they had no idea who might bid on the work. Steele and Associates has been a good member of the community. There are only so many companies capable of building jails. She wants the Board to get back on track and move forward. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 18 of 26 Pages Sheriff Blanton stated that he takes exception to the position paper. It is disrespectful to refer to employees on the committee giving preferential treatment to Steele/KMD due to personal relationships. And he did not like the statement that they are not qualified. Those names came before the Board well in advance and were unanimously approved. Also, the taxpayers have been involved for more than two years. On January 24, 2006 there was an open public forum to discuss a jail needs assessment, and meetings have been ongoing since then. In reference to renting jail beds cheaper, this is possible if you just want to warehouse inmates, with no treatment programs. This brings up the issue of recidivism. People are aware of the need for mental health and medical programs, parenting programs and others. There's much more at stake than an available jail bed. The inmate population today is at 211. The female area is full and the male area is almost there. They are matrixing a few less this year, as this is cyclical. He pointed out that Commissioner Daly said in a recent LPSCC meeting that the County inmates are not bad people. Sheriff Blanton stated that the inmates are there due to murder, attempted murder, sex abuse, robbery, burglary, rape and domestic violence. We don't want to release any of them. We have to plan for a growing need that we hope never occurs. During the 2.5 year process, professionals said the County needs 700 to 800 beds. It is a huge risk to have less. It is hoped that the work center will get them through the next couple of years. That facility is for sentenced, minimum security inmates that pose little threat to society. He hopes that when the new jail is built/remodeled that it isn't filled up. Right now there are no consequences to treatment. They need to move forward with engineering and design so there can be a hard estimate on the cost. Citizens spoke about the need in the November 2006 ballot. The jail needs assessment committee spoke about the potential sale of excess County property to fund construction. Sheriff Blanton said that until all other things are explored for funding, he will not support asking the taxpayers for any more money. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 19 of 26 Pages Commissioner Daly said that there is no question that there has been a good public process. But since it was decided that land should be sold to build the jail, the public has not been involved. There's no question there is a need, but he wonders about spending $2 million on a design just to have it sit on the shelf while money is sought. No one knows what the land is worth. He said his statement about there not being any bad people in the local jail was that they are State prisoners and go to Salem when adjudicated. He stands by his opinion that the process was not entirely fair, based on his investigation. Sheriff Blanton noted that if they are going to ask the taxpayers for anything, you have to know what it costs first. This won't be known until there are a set of plans. It's possible it could have to be cut again. More than a rough estimate is needed. Commissioner Daly said that they could design a $40 million jail and then find out they can't sell enough property. Maybe more would be known about the value of the land in six to eight months. Commissioner Baney objected to the statement that they haven't had a plan. They are not flying by the seat of their pants. Options have been discussed. They are waiting for the City of Redmond to finish its master plan. There is another identified parcel in Bend. There could be a hybrid solution. The question at this point is whether to expand the jail to provide for public safety. The County needs to know what it is buying, from the conceptual rendering to a set of plans. This is not wasted money. Scott Steele testified that his company and that of his partners have a good track record. He pointed out that with escalation at 5 to 7.5% per year, if this is not implemented soon it could cost the taxpayers another $1.5 to $3.2 million per year. This is hard data. It seems to be good planning to look ahead and get a plan together for something that can be permitted and built. The statement that the process was not fair is very troubling. If he were on the committee he would be very upset. It was a normal process. His company does a lot of public work and it is typical to have a committee like this one. It is also normal not to include the fee as the sole basis for selection. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 20 of 26 Pages He knows State statute regarding procurement well. The criteria are laid out, and it is not fair and is grounds for a protest to single out one criteria to try to change the procurement process. It is also offensive to say that there is a special relationship. He never even met two of the members before. He has worked with some of the others on projects but has no personal relationship. One of the other bidders knows at least as many committee members as he does. To suggest that his company was hand-picked is troubling. He works hard to secure these projects and the process was fair and normal. This is the first time in his career that someone in a public agency brought something like this up. He has a local business and is a taxpayer, and is being penalized for being local since he knows some of the committee members. His firm was beaten soundly on Phase I of the project. They win some and lose some. In regard to fees, he does not know what the competitors bid. The scope of work is fairly vague, so there are often ranges. There needs to be wiggle room. It is odd to be selected based on merits and have it come back that the basis is instead weighted on the fees. This is outside of the Oregon law protocol. The committee demonstrated that they were the most qualified, but that is not always the case. There is a fiduciary responsibility to the taxpayers, but he didn't know the other scopes of work. It could be that his company includes more. The architectural fee is a small component of the overall cost. As a taxpayer, he would like to save that money. His company will do its best, as always. Commissioner Daly sated that Deschutes County as a whole needs to be beyond reproach. This is an expensive project. There can't be any perception that there might have been something going on in the background. The perception is there because of the makeup of the committee and Scott Steele's relationship with the members. It doesn't pass the smell test with him. Mr. Steele said he has a working relationship with the Board and is not sure how to defend that. He doesn't hang out with the members; it's a working relationship only. Commissioner Luke asked who has the perception that they were too close? He added that Mike Morgan said that Commissioner Daly has a preconceived notion he wanted to confirm. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 21 of 26 Pages Mike Morgan and Susan Ross voted against Steele. These are highly respected people who did a good job. Mr. Morgan said that the County would get a good jail from any of the three bidders. This has been done before, and it is a matter of degrees. He has no doubt that the committee made a decision based on its best information and instincts. Commissioner Baney said that if they had picked the committee after the proposals were submitted, this could be different. But it has been a very transparent process. These people understand the process and have experience in facilities. It was open, and out of the three bidders there wasn't one that didn't know someone on the committee. There are not hundreds of these builders available. And the committee was approved ahead of time. BANEY: Move approval of the agreement. LUKE: Second. VOTE: BANEY: Yes. LUKE: Yes. DALY: Chair votes no. (Split vote.) LUKE: Move approval of the Consent Agenda. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. Consent Agenda Items 20. Signature of Resolution No. 2007-150, Transferring Appropriations within the Solid Waste Fund 21. Signature of Resolution No. 2007-151, Transferring Appropriations within the Solid Waste Fund and Capital Reserve Fund 22. Signature of Resolution No. 2007-152, Transferring Appropriations within the Health Department Fund 23. Signature of Resolution No. 2007-153, Transferring Appropriations within the Juvenile Community Justice Fund Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 22 of 26 Pages 24. Chair Signature of an Oregon Liquor License Application for The Corner Store, La Pine 25. Approval of Minutes: • Business Meetings: December 3 and 12 • Work Sessions: December 3 and 5 26. Economic Development Grant Requests: • Soroptimist International of Bend -Head Start Pajamas Project- Commissioner Luke granted $1,200 and Commissioner Baney granted $400. • New Generations - Head Start Center Renovation - Commissioner Luke granted $1,000 and Commissioner Baney granted $2,000. CONVENED AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 27. Before the Board was Consideration of Approval of Accounts Payable Vouchers for the 9-1-1 County Service District in the Amount of $16,535.98. LUKE: Move approval, subject to review. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 28. Before the Board was Consideration of Approval of Accounts Payable Vouchers for the Extension/4-11 County Service District I the Amount of $3,626.20. LUKE: Move approval, subject to review. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 23 of 26 Pages RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 29. Before the Board was Consideration of Approval of Accounts Payable Vouchers for Deschutes County in the Amount of $882,330.44. LUKE: Move approval, subject to review. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. 30. ADDITION TO THE AGENDA Before the Board was Consideration of Signature of Document No. 2007- 638, Amendment No. 3 to the Improvement Agreement for Pronghorn Destination Resort regarding Overnight Lodging Facilities. Laurie Craghead explained that the agreement approved in 2002 allowed for an extension of the agreement. There have been three extensions already but if both parties agree, it can be extended again. The request is for one year. The bond and other funding will stay in place, and is adequate to complete the required overnight lodging units. Commissioner Luke disclosed that he toured Pronghorn recently; and Commissioners Daly and Baney added that they also took part in the tour. Commissioner Baney said that they won't be at 102 additional units by the end of the year. Commissioner Luke stated that he doesn't like items this important coming in at the last minute. He won't support the extension; he will support just four months so that he has more time to review the information. Perhaps at that time he will consider a year's extension. Ms. Craghead stated that they have site plans waiting for approval, which means they cannot proceed unless the Board approves the improvement agreement. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 24 of 26 Pages Commissioner Baney asked if a four-month extension would not allow them to proceed. Ms. Craghead stated that they would be able to proceed on some aspects. Commissioner Baney asked if they could be fined for being out of compliance. Ms. Craghead replied that they could be fined but it gets complicated if it is computed on a daily basis; the goal is to bring them into compliance, not to penalize them. Mr. Blikstad added that they have discussed submitting plans this year for the balance of the 150 overnight units. There are market variations and obstacles to overcome but they are acting in good faith. Ms. Craghead said that they are staying pretty close to what was required; staff needs some time to make sure the type housing is appropriate. She stated that the developer has been very cooperative. Commissioner Baney stated she will only support a four-month extension as well. Commissioner Luke suggested it go to May 1. He said that the resort is an asset to the County and wants them to be successful. Laura Cooper of Ball Janik, representing Pronghorn, gave a brief description of how the resort has proceeded; the infrastructure and the golf course had to be built first and they are now redoubling their efforts to get the overnight accommodations built. They have made a good faith effort to go a good job and to complete what they can in a timely manner. The original plan was for a three to five year extension; there is no way to build them all within one year. The site plans have to be completed first, as they are tied to the improvement agreement. Without the site plans being approved, they cannot proceed with the improvements. The new agreement will show a specific timeline for the units to be built. Commissioner Luke stated that a lot of the information is not in the public record yet. Ms. Cooper said that the information has been submitted to Community Development and is available for review there. LUKE: Move that the extension be to May 1, 2008 and that the document come to the Board's 1:30 p.m. work session on December 19, 2007. BANEY: Second. VOTE: LUKE: Yes. BANEY: Yes. DALY: Chair votes yes. Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 25 of 26 Pages Being no further items to come before the Board, Chair Daly adjourned the meeting at 2: 30 p. m. DATED this 17th Day of December 2007 for the Deschutes County Board of Commissioners. ATTEST: Recording Secretary i ae M. aly, hair Denis R. Luke, Vice Ch Tammy &ffe-Y-"l Commi oner Minutes of Board of Commissioners' Business Meeting Monday, December 17, 2007 Page 26 of 26 Pages December 16, 2007 RE: Agenda Item # 19, Board of Commissioners meeting. Monday 12-17-07, Contract with Steele and associates to design a new addition to the County Jail. TESTIMONY AGAINST APPROVAL OF THIS CONTRACT First let me be very clear that I do not oppose moving forward with the construction of a new addition to our existing jail. I am opposed to moving forward in such a hurry that we make mistakes that will cost taxpayers money and not involve the taxpayers along the way. I have spent a great deal of time reviewing the three proposals submitted as well as the method used to select the winning Contractor. I have three issues to discuss about signing this contract and moving forward with this proposal. The selection process as it was set up was not fair to all of the firms submitting proposals. The selection committee was picked by County Administrator's staff. There were six members of the committee. Although they were charged with evaluating very complicated proposals from professional Architects and engineers, none of the Committee had expertise in the architectural and engineering field. All but one were public employees, and at least four of the committee had a close working relationship in the past either with Scott Steele or KMD Justice. Even though we are not supposed to take price for services into account when evaluating proposals, one of the firms chose to give us their formula for calculating the cost of their services. They propose 6.5 % of the cost based on the budget of $31 million dollars and they capped their reimbursable expenses at $75,000.00. The Contract before us at 2.1 million dollars and reimbursable expenses at $105,000 is approximately $115,000.00 higher than the other proposal from an equally qualified firm. Even though we are not supposed to ask about price in the interview process, if a firm chooses to give the information, we can not ignore it. NO FUNDS IDENTIFIED TO BUILD A NEW JAIL PRIOR TO DOING DESIGN WORK. As of today's date, no funds have been identified for the construction of a new jail. There has been a proposal to sell some County Land to finance the Construction. Some Land in Redmond owned by the County has been identified as a possible source of funds as well as sale of some property in Bend. Both of these properties have significant issues that have to be resolved before they are ready for sale. It will be six months or a year before these issues can be determined and how much these properties are worth. There is no solid plan in place at this time to finance a new jail and I see no reason to spend over two million dollars of taxpayer dollars designing and doing construction plans and specs when the plan may have to sit on a shelf for years before funding can be obtained. Many things can change; new technology is invented to replace technology designed into the plan which would make plan revisions necessary. All revisions to an existing plan would cost lots of money, and doing it right the first time makes more sense. I could support moving forward but not without a solid plan in place to pay for the jail once it is designed. I have been unable to find one person in the Construction industry who would agree that designing something before you have the financing in place is a good idea. THE TAXPAYERS HAVE BEEN LEFT OUT OF THE DECISION MAKING. In most cases when a new jail is needed, the elected officials need to go to the voters of the County and ask them for funding to construct one. In this case, the decision is left up to three County Commissioners. A decision to spend $40 million dollars of taxpayer's money should not be made without public input. There have been no public hearings on this issue nor have any been scheduled. This is very basic. The public should be given an opportunity to weigh in on this issue before any decisions are made. WE HAVE THE TIME. The remodel of the work center will give us 90 new beds immediately and if we get into a real problem, Jefferson County has a half empty jail and will be more than willing to rent us beds at a cheaper price than it is costing us to house prisoners in our own jail. This is a major undertaking and we need to do this right. When organizations get into a hurry, mistakes are often made which could prove to be very costly. In this case, the taxpayers are the ones paying the bill. I encourage my fellow Commissioners to take a step back and rethink this decision to move forward. Above all we need to make sure that the selection process is fair to all parties who want to be involved in the project. We need to have the funding in place before spending taxpayers money on plans and specifications, and we need to involve the public in the decision making process. Thank you for your consideration Mike Daly Deschutes County Commissioner. EXHIBITS TO DECEMBER 17, 2007 BOARD BUSINESS MEETING Arrowood Tetherow Resort Hearing - Extension of Development Agreement - Westside Consortium Pronghorn Resort - Improvement Agreement Amendment regarding Overnight Lodging Facilities C23 Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.org BUSINESS MEETING AGENDA - FOR THE WEEK DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., MONDAY, DECEMBER 17, 2007 Commissioners' Hearing Room - Administration Building 1300 NW Wall St., Bend 1. CITIZEN INPUT This is the time provided for individuals wishing to address the Board, at the Board's discretion, regarding issues that are not already on the agenda. Citizens who wish to speak should sign up prior to the beginning of the meeting on the sign-up cards provided. Please use the microphone and also state your name and address at the time the Board calls on you to speak. PLEASE NOTE: Citizen input regarding matters that are or have been the subject of a public hearing will NOT be included in the record of that hearing. 2. CONSIDERATION of Approval of County Administrator's Signature of Document No. 2007-625, a Contract for Services to Treat Wildland Hazardous Fuels on County-owned Property (Fremont Canyon) - Joe Studer, County Forester 3. CONSIDERATION of Signature of Document No. 2007-609, an Intergovernmental Agreement with the Oregon Department of Human Services regarding Chemical Dependency Organization Contracts - Scott Johnson, Mental Health Department 4. CONSIDERATION of Signature of Documents No. 2007-612 through 2007- 622, Towing and Storage Contracts - Sue Brewster, Sheriff's Office 5. CONSIDERATION of Signature of Order No. 2007-167, Accepting the Road Improvements and Engineer's Report and Setting a Pubic Hearing Date on the Final Assessment for Improvements in Manzanita Local Improvement District - George Kolb, Road Department Board of Commissioners' Business Meeting Agenda Monday, December 17, 2007 Page 1 of 7 Pages 6. CONSIDERATION of Chair Signature of a Notice of Intent to Award Contract Letter for the Household and Conditionally Exempt Generator Hazardous Waste Management Program - Timm Schimke, Solid Waste Department 7. CONSIDERATION of Signature of Order No. 2007-169, Transferring a Solid Waste Collection Franchise - Timm Schimke, Solid Waste Department 8. CONSIDERATION of Chair Signature of Document No. 2007-630, an Intergovernmental Agreement with the Oregon Department of Transportation for a Transit-related Equipment Purchase - Judith Ure, Administration 9. CONSIDERATION of Chair Signature of Document No. 2007-631, an Intergovernmental Agreement with the Oregon Department of Transportation for Specialized Transportation Services - Judith Ure, Administration 10. CONSIDERATION of Signature of Document No. 2007-041, an Intergovernmental Agreement with Lake County for Building Inspection Services to be Provided by Deschutes County - Tom Anderson, Community Development Department 11. CONSIDERATION of Approval of a Satisfaction of Conditions of Approval Agreement for a Site Plan Approved in 1995 (File # SP-95-31) - Paul Blikstad, Community Development Department 12. CONSIDERATION of Signature of Document No. 2007-632, a Deed of Dedication for a Minor Right-of-Way Adjustment for Alpine Lane - Chris Bedsaul, Community Development Department 13. CONSIDERATION of Signature of Document No. 2007-633, Board Findings and Decision on an Appeal of the Hearings Officer's Denial of File No. MP-07- 3 (Applicant: Hopp) - Chris Bedsaul, Community Development Department 14. CONSIDERATION of Whether to Hear an Appeal of the Hearings Officer's Denial of a Subdivision (Applicant: Kennel) - Chris Bedsaul, Community Development Department Board of Commissioners' Business Meeting Agenda Monday, December 17, 2007 Page 2 of 7 Pages 15. CONSIDERATION of Signature of Document No. 2007-610, an Improvement Agreement related to the Phase III Plat of the Tetherow Destination Resort in regard to Required Infrastructure - Anthony Raguine, Community Development Department 16. CONSIDERATION of Signature of Order No. 2007-629, to Call up for Review the Westside Consortium Development Agreement Extension Requested by Arrowood Tetherow - Anthony Raguine, Community Development Department 17. A PUBLIC HEARING and Consideration of Whether to Extend the Westside Consortium Development Agreement - Anthony Raguine, Community Development Department 18. A PUBLIC HEARING and Consideration of First and Second Readings, by Title Only, and Adoption of Ordinance No. 2007-029, Clarifying Various Provisions of the Outdoor Mass Gathering Permits, and Declaring an Emergency - Laurie Craghead, Legal Counsel 19. CONSIDERATION of Approval of County Administrator's Signature of Document No. 2007-551, an Agreement with Steele Associates/ KMD Justice for Design Services for the Adult Jail Expansion Project - Susan Ross, Property and Facilities CONSENT AGENDA 20. Signature of Resolution No. 2007-150, Transferring Appropriations within the Solid Waste Fund 21. Signature of Resolution No. 2007-151, Transferring Appropriations within the Solid Waste Fund and Capital Reserve Fund 22. Signature of Resolution No. 2007-152, Transferring Appropriations within the Health Department Fund 23. Signature of Resolution No. 2007-153, Transferring Appropriations within the Juvenile Community Justice Fund Board of Commissioners' Business Meeting Agenda Monday, December 17, 2007 Page 3 of 7 Pages 24. Chair Signature of an Oregon Liquor License Application for The Corner Store, La Pine 25. Approval of Minutes: • Business Meetings: December 3 and 12 • Work Sessions: December 3 and 5 26. Economic Development Grant Requests: • Soroptimist International of Bend -Head Start Pajamas Project- Commissioner Luke granted $1,200 and Commissioner Baney granted $400. • New Generations - Head Start Center Renovation - Commissioner Luke granted $1,000 and Commissioner Baney granted $2,000. CONVENE AS THE GOVERNING BODY OF THE 9-1-1 COUNTY SERVICE DISTRICT 27. CONSIDERATION of Approval of Accounts Payable Vouchers for the 9-1-1 County Service District CONVENE AS THE GOVERNING BODY OF THE EXTENSION/4-11 COUNTY SERVICE DISTRICT 28. CONSIDERATION of Approval of Accounts Payable Vouchers for the Extension/4-H County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 29. CONSIDERATION of Approval of Accounts Payable Vouchers for Deschutes County 30. ADDITIONS TO THE AGENDA Board of Commissioners' Business Meeting Agenda Monday, December 17, 20U"/ Page 4 of 7 Pages Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. FUTURE MEETINGS: (Please note: Meeting dates and times are subject to change. All meetings take place in the Board of Commissioners' meeting rooms at 1300 NW Wall St., Bend, unless otherwise indicated. If you have questions regarding a meeting, please call 388-6572.) Monday, December 17, 2007 10:00 a.m. Board of Commissioners' Meeting for the week 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday December 18, 2007 9:00 a.m. Signing Ceremony - East-West Community Fire Plan 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Wednesday, December 19, 2007 11:00 a.m. Oregon Youth Challenge Graduation Ceremony - Fair & Expo Center 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday December 20, 2007 9:00 a.m. Fair & Expo Department Update 10:00 a.m. Juvenile Department Update 1:30 p.m. Sheriffs Office Update, at Sheriffs Office Tuesday, December 25, 2007 Most County offices will be closed to observe Christmas Day. Thursday, December 27, 2007 4:00 p.m. U.S. Highway 97 - North Corridor Steering Committee Meeting Board of Commissioners' Business Meeting Agenda Monday, December 17, 2001 Page 5 of 7 Pages Monday, December 31, 2007 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, January 1, 2008 Most County offices will be closed to observe New Years' Day. Wednesday, January 2, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, January 7, 2008 1:30 p.m. Administrative Work Session - could include executive session(s) 3:30 p.m. Regular Meeting of LPSCC (Local Public Safety Coordinating Council) 5:30 p.m. Joint Work Session with the City of Bend Council, at City Hall Wednesday, January 9, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, January 10, 2008 7:00 a.m. Regular Meeting with the Redmond City Council, Redmond Council Chambers Tuesday, January 15, 2008 10:00 a.m. Regular Meeting of the Employee Benefits Advisory Committee Thursday, January 17, 2008 7:00 a.m. Meeting with Bend Chamber of Commerce - Legislative Policy Council Monday, January 21, 2008 Most County offices will be closed to observe Martin Luther King Jr. Day Board of Commissioners' Business Meeting Agenda Monday, December 17, 2007 Page 6 of 7 Pages Wednesday, January 23, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, January 28, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Tuesday, January 29, 2008 1:00 P.M. Commission on Children & Families' Update Wednesday, January 30, 2008 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 5:30 p.m. Meeting with DEQ and DLCD regarding South County Groundwater Issues Deschutes County meeting locations are wheelchair accessible. Deschutes County provides reasonable accommodations for persons with disabilities. For deaf, hearing impaired or speech disabled, dial 7-1-1 to access the state transfer relay service for TTY. Please call (541) 388-6571 regarding alternative formats or for further information. Board of Commissioners' Business Meeting Agenda Monday, December 17, 2007 Page 7 of 7 Pages Deschutes County Board of Commissioners 1300 NW Wall St., Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.oriz ADDITION TO AGENDA DESCHUTES COUNTY BOARD OF COMMISSIONERS MONDAY, DECEMBER 17, 2007 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend CONSIDERATION of Signature of Document No. 2007-638, Amendment No. 3 to the Improvement Agreement for Pronghorn Destination Resort regarding Overnight Lodging Facilities - Paul Blikstad, Community Development; Laurie Craghead, Legal Counsel F YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: ~3 510 Mailin Address: 4 Phone 1~ z E-mail Address: Date: Subject: F YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: 2oi ';~;5e L Mailing Address: Phone $ e 1 E-mail Address: Date: iZ(,~T Subject: r IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: , 4, e-rrz . Mailing Address: x.a5 ivk,/ ~~i~wirls~^-~ /a vC sir Phone 2~'90v E-mail Address: Date: 1 a- /;7-0-7 Subject: .~,«.0 IF YOU WISH TO TESTIFY Please complete this card & turn it in to a Count staff person. Name: Wh.2-2- Mailing Address: (v Phone y2o - 3325' E-mail Address: Date: 12 - (-I -Del Subject: -TtJLqJ,-oW IF YOU WISH TO TESTIFY Please complete this card & turn it in to a County staff person. Name: C~ 77qx " Mailing Address:? y 7 w~~ Phone ~k Q - i SI E-mail Address: Date: i z n - a 1 - . Subject: f - 4J,t,?.otA-) IF YOU WISH TO TESTIFY Please complete this card & turn - it in to County staff person. Name: ~v Mailing Address: 1Ti 8 JJ~_ ~N~w , 1A I -a Phone '3 E-mail Address: Date: Subject: n {~~,'O ~rnr c~ ~ C CQ n~ ~ ~tL' Le 1 ~ n L4 o~ 4fo__ Q-t o wl~ Log 'o rc-L4o 4-o a_~ In F, 12 LO 0 AtR jy.o as~k~~ r V~~ ~ 3-3 ce r P C al l CENTRAL OREGON b6a&~' ctL'o, I ( AREA COMMISSION ON TRANSPORTA TION 4a C' (COACT) November 8, 2007 3:00 - 5: 00 PM COIC Boardroom (upstairs) 2163 SW Glacier Place Redmond I II. III Call to Order and Introductions Dennis Luke, Chair General Public Comments Dennis Luke, Chair Old Business A) September 13, 2007 Minutes B) 2008 COACT Meeting Calendar Attachment A Attachment B C) Destination Resorts Discussion Follow-up, Summary of Oregon Transportation Commission Meeting Gary Farnsworth, ODOT Region 4 Area Manager Bob Bryant, ODOT Region 4 Manager D) Connect Oregon II Process Update Gary Farnsworth, ODOT Region 4 Area Manager IV. New Business A) Review Options for Modernization Funding Reduction Attachment C Gary Farnsworth, ODOT Region 4 Area Manager B) Review Transportation Enhancement Program Policy Update Attachment D Pat Fisher, ODOT TE Program Manager (Via Teleconference) V. Adjourn P 4 A Destination Resorts - Follow-up Research & Discussion Points from 9/13/07 COACT November 8, 2007 vo.# Research the ability or • There does not appear to be an Transportation Planning Rule authority of a county to (TPR) or legal restriction on requiring mitigation outside the require developers to make boundaries of the jurisdiction approving the development. improvements in a neighboring city or county. • There are a variety of issues to consider or which might be challenging to implement.. For example, if a county required an improvement inside a city, those improvements may require approval by that city, resulting in a separate review and approval process... ideally this would be based on a standing MOU or IGA between the 2 jurisdictions and/or with ODOT (for example UGB land mgt agreements between county & city), but one could also be done on a project-by-project basis. • Requiring the applicant to provide funding to either ODOT or the local jurisdiction as mitigation may be simpler, but may not result in concurrency (timely construction of the needed improvements). • A county could condition a development upon getting any needed permits from third party. 2 With an observation that Options: resorts/rural subdivisions are • County SDCs would help generate some additional funding. emerging given they can avoid fees and other • Potential revisions to Goal 8 may help refocus development back responsibilities, what changes into UGBs. For example, OAR 660-015-0000(8) does not allow would need to be made to destination resorts within 24 air miles of a UGB with a population create more equity with of 100,000 or more either or both of these numbers could be respect to the urban areas? modified. • Pilot project to develop a regional SDC for state highway improvements may help recover rural improvement costs. Trip generation for resorts can The Institute of Traffic Engineers (ITE) Trip Generation manual is vary greatly (older vs newer, commonly used as a standard reference for trip generation estimates. their location, percentage However, the manual has fairly limited useful data for destination overnite vs permanent, etc). resorts. Recommended a regional agreement for trip generation As a result, and in order to analyze the traffic impacts of Brasada be considered. Ranch more accurately, Crook County and ODOT requested a destination resort trip generation study be completed. This study was completed in September 2006 and recommended that future DRs use a trip generation rate of 4.4 daily trips/residential unit and 0.32 summertime weekday PM peak hour trips/residential unit. ODOT tl` p . staff recommends using these rates unless there is a reason to modify them based on the unique characteristics of a future resort. 4 Help planning commissioners The Oregon Planning Institute (OPI) offers an annual training better understand issues and workshop in September that is targeted for planning commissioners. jargon used. Another option is to make available some of the recent support materials that were prepared for COACT and the OTC for local staff to use with their PCs. Develop an inter jurisdictional There is currently no regional decision making process mechanism decision making process. other than that established for Metro in the Portland area or as part of a Regional Problem Solving project. COACT could take on the goal of developing regional recommendations and guidelines for review and approval of destination resorts, but unless these were incorporated in local ordinances and policies they would be merely advisory. 1 ~Q Y \ ■ !4!P 4~1i U J J v p Cm >x° 3. cs, ax ggx' 6ax ~B 3 s ~ a 0 ? ~ ~ m ~ Po N 0 fIq From: Nunzie<nunzie@pacifier.com> Subject: Board Meeting 12/17/07 Date: December 16, 2007 7:39:32 PM PST To: Tammy Baney <Tammy_Baney@co.deschutes.or.us> Cc: Catherine Morrow <Catherine Morrow@ co.deschutes.or. us> 1 Attachment, 2.5 MB Saye_,> Hello Commissioner Baney: I attach a pdf of destination resort zoned land in the tri-county area. Specifically in reference to your Board of Commission meeting scheduled for 12/17/07 and Agenda item 16 and 17. Order No. 2007-629 dialogue of extending an agreement with the Westside Consortium MC-07-8 Could you kindly tell me whether any of the 12 Consortium members who own land west of the City of Bend include land zoned for destination resorts and whether the discussion you will have regarding Tetherow Destination Resort will extend the Board's committment in timeline to the other 11 Consortium members? Thank you Nunzie Gould r. - %r .a j. Carib Ovduks Carib L Destination Resorts , ~ BLw*Bvb Ruch aCan ; 1d89UweAHotN 1,884 b5ea~w Plw dUNb 1fiombv.g (Padly~ WeH®tib Zle AtluMi UNb Fern 58D Hvmmib ARaebed UNbA HVbI Tellvan 3A Hvvoitrn Zl8 Atlr'.bed UNb A HNeI bm ofllA ldmnbin 556 UNb son.i.~, e azaouNbs4mge e. Gldae Splvp 1. y~._ 358 HVmNb l7 ]50 Atladrd UNb ~ r w±~ cebe® ( ~ 4>mkSmunb 9W UNb Hidden Curym ^(9nR NW DamM Cvmple4e 20.50 Hamalb },5aJ19OVaNgN UNb ~ nrW l w ~ / • o 819 Hvvaib hgCwcepwl Apprm~0 r, ~ g880vern~ghtHNb ryer z .41 691 COc4 ' l -Ft NIU-0 (,.d Pa u I D. Dewey Attorney at Law ~C1~ 1 PJ CrJ , 1539 NW Vicksburg Bend, Oregon 97701 A (541) 317-1993 3 fax (541) 383-3470 pdewey@bendcable.com November 8, 2007 Mr. Bob Bryant ODOT Region 4 63085 N. Hwy 97 Bend, OR 97701 Re: Inadequate Destination Resort Contributions to ODOT Highway Projects Dear Bob: I am writing on behalf of Central Oregon LandWatch to draw your attention to and express our concerns about ODOT failing to obtain adequate contributions from destination resorts to compensate for their impacts on ODOT facilities and to timely correct problems at those facilities. One example of this failure concerns the Thornburgh Destination Resort which in a draft Cooperative Improvement Agreement ("CIA") (attached) is to provide $500,135 to ODOT when an interchange is built in Tumalo. As you well know, there are serious problems with intersections with Highway 20 in the community of Tumalo. The intersection of Cook Avenue and Highway 20 is already failing and has been the site of several fatal accidents. The intersection of Bailey and 7th Street with Highway 20 has also had difficulties. There are several problems with this draft agreement: 1. The "current estimated cost" of the interchange appears to be substantially low. It is based on an old estimate of $2 million calculated in 2000. The CIA updates the costs for effects of inflation to 2005 to a total of $2,273,342. ODOT's methodology is flawed for several reasons: A. The old figure of $2 million should have been reassessed to determine what a likely interchange would look like today. There has been a significant amount of development in Tumalo in recent years, including the new Knife River (formerly Hap Taylor) facility (for which ODOT apparently collected no money for the interchange despite all the additional traffic at a failing intersection). Would the design in 2000 still work? B. Any methodology to update costs over time should not be just based on inflation as provided for in the CIA. As you know, land values in Tumalo and throughout Central Oregon have skyrocketed since 2000. Where any interchange is going to necessarily involve land acquisition for right of way, the use of an inflation factor alone seriously underestimates costs. November 8, 2007 Page 2 C. This proposed agreement should set out the costs and assumptions behind its $2,273,342 cost figure. The breakdown of the Sunriver interchange costs is attached and shows a cost of $11,251,300, and that apparently included no cost at all for right of way. The traffic engineering firm of Ferguson & Associates estimated a cost of $5-10 million for any interchange in Tumalo, considering land acquisition costs, the cost of access management measures, and the cost acceleration and deceleration lanes. (Attached are excerpts from their report.) If the actual costs are $5-10 million, then you failed to collect $500,000 to $1.5 million from Thornburgh (its 22% share). The taxpayers then have to make up that difference. 2. The contribution figure is being set in the CIA as of 2005 rather than based on the costs when the project is actually done. ODOT inappropriately sets a figure of $500,135 for Thornburgh to pay "when the Interchange is constructed." (Emphasis added.) Not only is that 2005 figure of $500,135 already outdated by two years as of 2007 when this CIA is dated, but this project may not be built for another six to ten years. A county engineer apparently recently predicted a 2013 date, and MOT officials have refused to even predict a date. Why did you freeze their contribution amount when their proportional costs (22%) will be so much more by the time the project is built? You do not even take their money now and invest it so that it maintains at least some of its value in the face of inflation and other increased costs. 3. Your agreement with Thornburgh is premised on a Traffic Impact Analysis done by Thornburgh's traffic consultant. There are several ways in which that TIA is not accurate. First of all, the TIA understates traffic that will be going to and from Tumalo because it assumes there will only be one access to Cline Falls Highway when in fact there will be two access roads. The TIA also does not calculate traffic from the north part of the resort that will actually be using the BLM roads to get to the south part of the resort and Cline Falls Highway. At the very least, this agreement should have been based on a TIA done by ODOT to ensure an objective analysis of impacts. It does not appear that ODOT even considered the traffic analysis prepared by Ferguson & Associates which critiqued the Thornburgh TIA analysis. 4. The CIA with Thornburgh provides that the agreement will terminate upon completion of the project and final payment "or ten calendar years," whichever is sooner. Since it is possible this project won't get done in 10 years, what then? 5. A fundamental problem with ODOT's approach on Thornburgh is that through the CIA you essentially authorize the County to approve the development of this resort even though the underlying infrastructure is not yet provided and probably will not be provided even after the destination resort is built. This means that additional intersections will fail and already failing intersections will see yet more fatal accidents. These problem intersections must be corrected before such large developments are allowed to go forward. If, in fact, ODOT is not going to or is not able to build the necessary infrastructure in a timely manner, then it should so notify the County as part of its comments on any proposed development and oppose approval of the development. November 8, 2007 Page 3 The copy of the Thornburgh CIA we have received is not signed, so we hope that ODOT will be able to update it and require a responsible contribution from Thornburgh. We appreciate that ODOT is currently taking a new look at requiring contributions to pay for needed infrastructure, and we appreciate that COACT is looking at traffic impacts of destination resorts. However, we believe it is also necessary that ODOT substantially alter its process for assessing impacts and contributions. Very truly yours, 7 Ll~: Paul Dewey PD:ao cc: COACT LandWatch Board Misc. Contracts & Agreements No. 22937 COOPERATIVE IMPROVEMENT AGREEMENT Thornburgh Resort Company, LLC: US 20/OR 126 Transportation Improvements 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 the THORNBURGH RESORT COMPANY, LLC, an Oregon limited liability company, acting by and through its senior officers, hereinafter referred to as "Thornburgh", collectively referred to hereinafter as the "Parties". RECITALS 1. US 20 and OR 126 are part of the state highway system under the jurisdiction and control of the Oregon Transportation Commission.` 2. Thornburgh filed a land use application, hereinafter referred to as the "Application", with Deschutes County, hereinafter referred to as the "County on February 16, 2005, seeking development approval for a destination resort on approximately 1,980 acres of private land located adjacent to the Cline Buttes outside of Redmond, Oregon. The proposed resort, hereinafter referred to as the "Resort", will include three 18-hole golf courses, 1000 single-family dwelling units, 500 units of overnight accommodations, recreational amenities and associated infrastructure. The location of the Resort is depicted on Exhibit A, attached hereto and by this reference made a part hereof. 3. To facilitate its Application and to help in the determination of its transportation obligations pursuant to the Deschutes County Destination Resort Ordinance (DCDRO), Thornburgh retained. Group Mackenzie, Inc. hereinafter referred to as "Mackenzie", to prepare a Traffic Impact Analysis report, hereinafter referred to as "Traffic Analysis", in connection with the Resort. 4. As shown in the Traffic Analysis, the Resort will utilize two access points that will add additional vehicular traffic at two intersections on the state highway system: (1) the US 20/Cook Avenue (Cline Falls Highway) intersection in Tumalo and (2) the OR 126/Eagle Crest Boulevard Intersection. 5. By the authority granted in ORS 366.425, ODOT may accept deposits of money or an irrevocable letter of credit from any county, city, road district, person, firm, or corporation for the performance of work on any public highway within the 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. 6. Thornburgh has a pending Right of Way application with the US Bureau of Land Management (BLM) in which it seeks right of way authorization to utilize an access route that runs from the northern Resort boundary in Section 17 to the OR 126/Eagle i Thornburgh/ODOT Agreement No. 22937 Crest Boulevard intersection. in the alignment as depicted on Exhibit B, attached hereto and by this reference made part hereof. Thornburgh is also seeking rights of way across federal lands to permit connections between the northern and southern portions of its property. The connecting rights of way are also depicted on Exhibit B. 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. The Parties agree that Thornburgh will contribute its proportional share of the cost of improvements needed to mitigate the transportation impacts attributable to the Resort, consisting of construction of a grade-separated interchange at the Cline Falls Highway/US 20 intersection; a westbound left-turn lane and an eastbound right-turn lane on OR 126 at Eagle Crest Boulevard, hereinafter referred to as "Project." 2. The term of this Agreement shall begin on the date all required signatures are obtained and shall terminate upon completion of the Project and final payment or ten calendar years following the date all required signatures are obtained, whichever is sooner. 3.Cline Falls Highway and US 20 Interchange 3.1 Some portion of vehicular traffic from the Resort will travel south from the Resort to the intersection of the Cline Falls Highway and US 20 in Tumalo. The Deschutes County Transportation System Plan (TSP) has identified this intersection as the site of a future grade-separated interchange, hereinafter referred to as the "Interchange; to better accommodate current and future traffic. 3.2 Based on data contained in the Traffic Analysis, the Resort is expected to generate 4 percent of the overall traffic at this intersection including 22 percent of what are characterized as the "critical turning movements." 3.3 Thornburgh shall contribute a portion of the cost of constructing the Interchange at this location based on Thornburgh's impacts to the "critical turning movements." Thornburgh's contribution towards construction costs is intended to fully mitigate the transportation impacts to this intersection attributable to the Resort. 3.4 Pursuant to the terms of this Agreement, Thornburgh's proportionate share of the current estimated construction cost of the Interchange is $500,135, as calculated in Section 3.5 below. 3.5 Section 5.11 of the Deschutes County TSP lists as a priority item the construction of the Interchange. Traffic data demonstrates that the Resort is 2 i Thornburgh/ODOT Agreement No. 22937 expected, on average, to generate approximately 22 percent of the critical turning movements from the side street onto the highway at this intersection. The current estimated cost of the Interchange is $2,000,000. When adjusted for inflation under the Oregon Highway Construction Cost Trends (published by ODOT), the year 2005 cost of the Interchange is $2,273,342. 3.6 The Parties hereby agree that when the Interchange is constructed, Thornburgh shall contribute, as its proportionate share contribution, the fixed amount of $500,135, hereinafter the "Interchange Contribution," which equals 22 percent of the total estimated construction cost. 3.7 Upon execution of this Agreement and subsequent written request from ODOT for an advance deposit. Thornburgh shall forward the Interchange Contribution to ODOT in the form of cash, check, or an irrevocable Letter of Credit within 60 days. Such funds must be received by ODOT before award of the contract. Said funds shall be placed in the Highway Trust Fund by ODOT. Thornburgh and ODOT agree any advance deposit of all or a portion of the Interchange Contribution shall be returned to Thornburgh after one year if construction of the Interchange does not commence. 4. OR 126/Eagle Crest Boulevard 4.1 Some traffic from the Resort will travel to the existing intersection with OR 126 at Eagle Crest Boulevard 4.2 ODOT shall require, as part of the conditions of the approach road permit to be issued to BLM to allow traffic from the Resort, as discussed in Recitals, Paragraph 6, to connect with OR 126 at Eagle Crest Boulevard that a westbound left-turn lane on OR 126 and an eastbound right-turn lane on OR 126 at Eagle Crest Boulevard be constructed to applicable ODOT standards. Thornburgh agrees to construct these improvements to satisfy the approach road permit conditions. Further, Thornburgh shall agree on a timetable for construction of the improvements identified in this section at the time an approach road permit is issued to BLM. 4.3 Thornburgh shall construct the Project in accordance with the requirements of ORS 276`.071 including the public contracting laws within ORS Chapters 279A, 279B and 279C. 4.4 If Thornburgh chooses to assign its contracting responsibilities to a consultant or contractor, Thornburgh shall inform the consultant or contractor of the requirements of ORS 276.071, to ensure that the public contracting laws within ORS Chapters 279A, 279B and 279C are followed. 4.5 Should operational problems develop that create a safety hazard that cannot otherwise be mitigated, ODOT may require additional modifications to the 3 i Thornburgh/ODOT Agreement No. 22937 intersection. Required modifications (e.g., restrictions to right-in/right out, raised median, etc.) shall be paid for by Thornburgh unless other development in the area also generates traffic through said intersection, in which case such other development shall be required by ODOT to pay its proportionate share of the costs of any improvements or mitigation measures. The decision to restrict or require the modification of the access will be at ODOT's discretion, but will be closely coordinated with Thornburgh and Deschutes County to consider reasonable options. 5. Contingent Obligations. The obligations of Thornburgh contained herein are contingent upon the following: 5.1 Approval of the Resort Final Master Plan, permitting development and construction of the Resort substantially as proposed in the Conceptual Master Plan Application. 5.2 Final approval from BLM of Right of Way grants allowing the construction and long term Resort use of roadways across federally owned lands in the locations depicted in Exhibit B. 5.3 The grant of all necessary permits from ODOT allowing access from the Resort to OR 126 at Eagle Crest Boulevard. GENERAL PROVISIONS 1. Review of Construction Proposals. The Parties agree that a mutual review of the construction plans will be conducted prior to advertisement for construction bid proposals. 2. Termination. This Agreement may be terminated by mutual written consent of the parties. ODOT may terminate the agreement (after providing Thornburgh written notice and opportunity to cure totaling 60 days) under any of the following conditions: a. Thornburgh fails to provide services called for by this Agreement within the time specified herein or any extension thereof. b. Thornburgh 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. c. Thornburgh fails to provide payment of the Interchange Contribution upon receipt of a letter of request from ODOT. d. Any termination of this Agreement shall not prejudice any rights or obligations accrued to the parties prior to termination. 4 i Thornburgh/ODOT Agreement No. 22937 3. Thornburgh shall, to the extent permitted by the Oregon Constitution and the Oregon Tort Claims Act, indemnify, defend, save, and hold harmless the State of Oregon, Oregon Transportation Commission and its members, Department of Transportation, its officers and employees from any and all claims, suits, and liabilities which may occur in the performance of this Project. 4. Notwithstanding the foregoing defense obligations under paragraph 3 above, neither Thornburgh nor any attorney engaged by Thornburgh shall defend any claim in the name of the State of Oregon or any agency of the State of Oregon, nor purport to act as legal representative of the State of Oregon or any of its agencies, without the prior written consent of the Oregon Attorney General. The State of Oregon may, at anytime at its election assume its own defense and settlement in the event that it determines that Thornburgh is prohibited from defending the State of Oregon, or that Thornurgh is not adequately defending the State of Oregon's interests, or that an important governmental principle is at issue or that it is in the best interests of the State of Oregon to do so. The State of Oregon reserves all rights to pursue any claims it may have against Thornburgh if the State of Oregon elects to assume its own defense. 5. Fax Signatures. This Agreement may be executed in several counterparts (facsimile or otherwise) all of which when taken together shall ' constitute one agreement binding on all parties, notwithstanding that all parties are not signatories to the same counterpart. Each copy of this Agreement so executed shall constitute an original. 6. Integration. 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 ODOT of that or any other provision. IN WITNESS WHEREOF, the parties hereto have set their hands as of the day and year hereinafter written. 5 i Thornburgh/ODOT Agreement No. 22937 The Oregon Transportation Commission approved this project on March 22, 2007 and delegated authority to the Deputy Director, Highways, to approve and sign agreements relating to this Project. THORNBURGH RESORT COMPANY, STATE OF OREGON, by and through LLC, by and through its senior officers its Department of Transportation B BY y Deputy Director, Highways Title Date Date APPROVAL RECOMMENDED By By` Title Technical Services Manager/Chief Engineer Date Date VED AS TO FORM BY APPRO Region 4 Manager By l l C h L Date ounse ega Thornburg By Date Program and Planning Manager Thornburgh contact: Date APPROVED AS TO LEGAL SUFFICIENCY By Assistant Attorney General Date FAAgreements0eveloper s\22937 Thornburgh\22937 track changes 1.19.07 REVD 10.25.07 forward to nunzie.doc 6 Thornburgh/ODOT Agreement No. 22937 1l..... ! I T HORNBURGH RES ORT Cam2rflNL iN8MP LAN F-* A tLoQA7Kkhf=Alb7MALACJES Lxrawxi cw+rr aeaoir EXHIBIT A Thornburgh/ODOT Agreement No. 22937 I f rt A - "•y~0 FT-- -AP N I' 4 lob t , J qy1 _yf} t 'I t TWE ~ N f r ~ , (t w y o / \ ` ~y 1~ ~ } t \ \ 3 ~ ~y 't{ 4 \ usT~lw 1S. (b f 21 1 i i v capUMS MILI[VFk, I,L'iIMIS A A5 A&-CM'E5 ~~/~C~IffOU Yue IM7'IT Of- WAY O~•~NT8 MJa V y r a w 0.ciOTAPRJCdTKXYISkICIA7LHCYAYAYArtRQAG7I ~i EXHIBIT 6 vGi - ~E Uo (,~(t i 1 J U iLt ~ C~C~ , uSci i~ e, -d-L, 0-blor r PE 1 A)( 2--.?aq UK CO D C q, ESL c~ C. ,V 711 q~C, :-2 C95 I~-:-7)I~ r., Thornburgh Destination Resort - Review of Traffic Impacts July 14, 2005 congestion increases on Cook Avenue and drivers divert to 5" Street and 7" Street to avoid congestion at Cook Avenue. 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. This reality is not acknowledged in the traffic study report. The traffic study should be revised to look at the crash history on Highway 20 in Tumalo in general and on other key intersections in the study area, including accidents on Highway 126 and on Cline Falls Road, including the intersection of Cline Falls Road and Tumalo Road. The traffic study evaluates interim improvements to Highway 20 at Cook Avenue. One improvement was for a left-turn refuge lane. The study claimed that this improvement would off-set the impacts of the proposed project and thereby mitigate any impacts associated with the project. The suggested improvements, however, would lower the service levels for northbound right turns. (The volume-capacity ratio for this movement would drop from 0.06 to a volume-capacity ratio of greater than 1.5.) It is not reasonable to significantly degrade operations for one movement at an intersection so that the volume- capacity ratio can be improved for a movement where project traffic is assigned. Such an improvement does not off-set project impacts - it just shifts the burden. This option would also eliminate a through lane on Highway 20, which would reduce the capacity of the highway. It is unclear who would fund such an improvement. It does not appear to be a proposed improvement by the developer. Finally, any monies spent on this project would be wasted as soon as the planned interchange at this intersection was built. The traffic study presents a cost estimate of $2.3 million for the interchange at Cook Avenue and Highway 20. It is questionable that the interchange could be constructed for this amount if the project cost were to include: land acquisition costs; the cost of constructing acceleration and deceleration lanes that meet highway design standards for prevailing speeds on Highway 20; the cost associated with access management measures that ODOT would likely require; etc. Given that the Highway is at a higher elevation than Cook Avenue, the approaches to the interchange would need to be longer than if the area were flat or the interchange would need to go under rather than over Highway 20. In either case, this adds cost to the project. The close proximity to the Deschutes River may also impact the design and cost of the project. A more realistic estimate should be provided based on a realistic functional design concept that ODOT agrees is reasonable. The plan and cost estimates should also include right of way costs, planning and engineering costs, and the cost of needed frontage roads to address ODOT's access management Ferguson & Associates, Inc. 4/26 Review #00619 Thornburgh Destination Resort - Review of Traffic Impacts July 14, 2005 requirements that would be implemented along with any interchange project in this area. The traffic study also suggested a traffic signal as a possible mitigation measure. It is unlikely that ODOT would accept such a solution, even as an interim solution. If a traffic signal were installed, ODOT would like require consolidation of all access points on Highway 20 in Tumalo. It is not clear if the impacts of such a consolidation on signal operations were considered in the study. If they were not, the traffic study should be revised to include the reassignment of traffic from 5" and 7" Streets to Cook Avenue. The study did not address intersection sight distance and stopping sight distance at the intersection of the new access point road intersecting Cline Falls Road nor at the secondary access point shown on a curve on Cline Falls Road. This assessment should be included in the study since there are a number of vertical and horizontal curves in the vicinity of the proposed access point. The study did not address a.m. peak hour operations, when left-turns to Highway 20 tend to be higher than during the p.m. peak. Nor did the study address weekend operations, which may or may not be higher at some study locations compared to p.m. peak hour commuter peak times. The study should be revised to include an analysis to demonstrate that traffic from the project combined with other forecast traffic at times other than the p.m. peak hour are not significant at all study locations and if the a.m. peak or weekend flows with the project are a higher, impacts during these other time periods should be analyzed in the study. The revised traffic study does not address the impact on Barr Road, where development is proposed to take direct access; nor does it address the impact on Cline Falls Highway and Becker Road, which is the logical extension of Barr Road and may need realignment at Cline Falls Highway (county Staff also asked to include this intersection); nor does it address the impact on Tumalo Road and Cline Falls Highway, which has been identified as needing intersection sight-distance improvements. There is also a high number of accidents in the vicinity of this intersection according to accident records from the Sheriffs' Department. A number of connections are proposed to Barr Road. The application states that these are for "emergency access" and that they would be gated and not available to the general public. The application also states that BLM would not permit its roads to be used as general access for development. At the same time, it appears that direct access is proposed to Barr Road and the circulation system is depended upon use of roads located on BLM property. There is concern that if Barr Road and connecting unimproved roads were improved, Ferguson & Associates, Inc. 5/26 Review #00619 Thornburgh Destination Resort - Review of Traffic Impacts July 14, 2005 No supporting data was provided for existing traffic flow estimates on Cline Falls Highway except for the two traffic counts conducted at Highway 20 and at Highway 126. The study should include traffic counts at all study intersections, including the intersection of Cline Falls Highway and Tumalo Road or otherwise explain how the existing flow numbers were derived. With the amount of traffic being assigned to Redmond, the intersection of Helmholtz Way and Highway 126 should be included in the traffic analysis. This intersection is already experiencing operational problems and the addition of traffic to Highway 126 would further limit the ability of drivers to turn from Helmholtz Way to Highway 126. • Given that: there are substantial operational and safety problems in Tumalo at intersections on Highway 20; there is currently no clear funding source for an interchange; there is not a project on the STIP; and, developer contributions to an interchange at Tumalo would not be adequate for the construction of an overpass - it would be desirable to condition advancement of the project beyond a given stage on the full funding for an interchange at this location. There is the question of Deschutes County policy and State Planning rules that suggest that operational and safety problems that are increased by a project need to be corrected in advance. Even it its current form, the traffic study shows that ODOT mobility standards and Deschutes Count Level of Service Standards are not met in Tumalo on Highway 20. The application does not address how the capacity and safety problems at Highway 20 in Tumalo would be mitigated. The interchange is not currently funded nor is it programmed by the State. The option of traffic signals would not likely meet ODOT approval and the concept of providing a left-turn storage lane would not off-set all project impacts at this intersection. There are a number of activities that may significantly impact the proposed project. It is understood that ODOT is conducting a planning study on Highway 20 between Sisters and Bend. The outcome of this study may have significant implications on project development. It is also understood that the State is in the process of acquiring adjacent lands for potential development. I this is the case, it would be prudent for all parties to slow down the process so that an overall plan for the area be developed that better would serve both the project and the community as a whole over the next 20 years. Ferguson & Associates, Inc. 7/26 Review #00619 Thornburgh Destination Resort - Review of Traffic Impacts July 14, 2005 ODOT would likely require that all other access points to Highway 20 in Tumalo be closed, as per the State's access management policy. This would require additional local street connections on the south side of Highway 20. Also, the analysis should consider diverted traffic to this intersection from these closures. Moreover, the Deschutes County TSP identifies a grade separated interchange at this location. An interchange project, however, is not currently funded in the ODOT STIP. The most recent traffic study as provided by Deschutes County does not include the appendix, so it is not possible to check whether this was done or not. If this additional traffic were added, a traffic signal as analyzed may or may not be adequate to accommodate future traffic. No traffic mitigation was identified for the intersection of Highway 126 and Cline Falls Highway. According to the first version of study, this intersection would not meet Deschutes County level of service standards with the project in year 2015. Interchange at Cook Avenue and Highway 20 The Deschutes County TSP identifies a grade separated interchange at the intersection of Highway 20 and Cook Avenue. Deschutes County lists the cost of the interchange at $2.0 million. While this project is needed from a safety and capacity perspective, this project is not currently funded. The cost of the interchange appears to be low. Land acquisition would be required and land values have been escalating at a rate faster than inflation. It is likely that ODOT would enforce its access management rules, which would likely mean that all other access to Highway 20 in Tumalo would be closed. To accomplish this, a frontage road would be needed on the south side of Highway 20. This would add cost to the project. To implement ODOT's interchange access control policy, there may be a need for additional access restrictions near the ramp terminus's of the interchange. This may add cost to the project. It is also not clear if the cost includes standard acceleration and deceleration lengths on Highway 20. The elevation of the Highway may also increase the cost of an interchange, since longer ramps would be required to clear the Highway. Alternatively, if the interchange were to be constructed so that it went under Highway 20, which is often a more expensive solution, there may be issues with the water-table which could increase construction and maintenance costs. It is not clear if the $2.0 million dollar price tag includes planning and engineering costs or the cost of traffic diversion during construction. The close proximity to the Deschutes River may have design implications which impact cost. If all of these costs are considered, it is very possible that the project would be a $5 to $10 million dollar project rather than a $2 million dollar project. Contributions to this interchange should be based on a reasonable cost estimate that accounts for likely design obstacles. The revised traffic-study report factored up the estimated 1996 cost estimate for the interchange to a year 2005 estimate. The revised cost is shown to be $2.3 million dollars. This revised estimate does not account for land acquisition or other Ferguson & Associates, Inc. 9/26 Review #00619 Thornburgh Destination Resort - Review of Traffic Impacts July 14, 2005 improvements that would be needed to build the interchange. It would be appropriate to develop a more realistic cost estimate based on a workable functional design for the interchange. The cost should include land acquisitions costs, frontage road costs needed to support the interchange, and 55 mile per hour -plus design standards for acceleration and deceleration lanes on Highway 20. Review of Traffic Study Scope, Analysis and Methodology The traffic study did identify some of key problems in the study area. It was found, however, that the impacts of the proposed project were underestimated. This is discussed in more detail below. It was also found that the scope off the study did not include a number of intersections where traffic problems are likely to arise. These are also discussed below. Traffic Impacts of Development Underestimated The first version of the traffic study assumed only 100 hotel rooms and 770 dwelling units; while the application appears to be for 1025 dwellings and 500 hotel rooms. The second version of the traffic study assumed that there would be 1,381 homes residential units but only 50 rooms in the hotel. The size of planned restaurants was reduced to a total of 100 seats. It is reasonable for an application of this sort to be somewhat vague and open-ended as to what may happen over a relatively long development period. But when this is the case, it is generally required that the traffic study address a reasonable worst case scenario in its traffic forecast. The traffic study did not address a reasonable worst case scenario. The original traffic study forecast that all phases would generate 655 p.m. peak hour trips, after accounting for interval trips. The revised traffic study presents a forecast for all phases of 476 trips, which is about a 30 percent decrease in p.m. peak hour trip generate. While the numbers of dwelling units have gone up, the total trip generation has gone down. This is not logical and raises further doubt as to whether the traffic study reflects are reasonable worst-case scenario. The trip generation rates used in the study for recreational homes are too low. The ITE trip rate used was based on two (2) data points from surveys conducted in the late 1970's and mid- 1908's. The ITE Trip Generation Handbook (March, 2001) suggests that caution be used when applying very small data sets and that data sets should include at least three (3) data points, and preferably five (5) data points. It appears that many of the homes and condominiums and cottages would be treated as short-term rentals - and not simple second homes as suggested by the description of the land use category Ferguson & Associates, Inc. 10/26 Review #00619 Thornburgh Destination Resort - Review of Traffic Impacts July 14, 2005 If the study horizon were expanded to somewhere between 2020 and 2025, to address the proposed development schedule (year 1018 for the last phase), the increase in traffic on Highway 20 would be even higher. With a 2023 horizon year, the forecast would be for about 1,100 additional vehicles per hour (both directions), using the same growth factor used in the traffic study. This would amount to a total of about 2300 vehicles per hour (both directions.) At this level of traffic demand, Highway 20 would require significant improvements would likely include some combination of limited access with grade-separated interchanges and widening of the facility. There are currently no plans or long range funding mechanisms that could be identified to address these future deficiencies. Construction traffic was not addressed in the application. Site would be under construction until 2018. It is anticipated that much of the heavy truck traffic would use the intersection of Highway 20 and Cook Avenue. This impact should be evaluated in the traffic study. Thank you for consideration of these comments. We appreciate this opportunity to be able to provide feedback on this significant project. It is trusted that the information provided herein would assist in the refinement of the application so that the resulting project would better serve the community. Very truly yours, FERGUSON & ASSOCIATES, INC. el G. Scott Ferguson, PE ~o PRp,cFs W PEA . Ferguson & Associates, Inc. 26/26 Review #00619 iregon Theodore R. Kulongoslu, Goy erruu November 29, 2007 Paul D. Dewey 1539 NW Vicksburg Bend, OR 97701 Subject: Proposed Thornburgh Destination Resort Dear Mr. Dewey: Department of Transportation Robert W. Bryant Region 4 Manager 63055 N Hwy 97 Bend, OR 97708 Telephone (541) 388-6184 FAX (541) 388-6231 E-mail: robert.w.bryantrXstate.or.us File Code: Thank you for your November 8"' letter which listed a number of concerns about the Oregon Department of Transportation's (ODOT's) approach to mitigating the transportation impacts of destination resorts. You specifically used the example of our draft Cooperative Improvement Agreement (CIA) with Thornburgh and identified the following key concerns: I . the interchange cost estimate is too low (due to outdated estimate, inflation, right of way cost increases, etc.), 2. potential deficiencies in the Traffic Impact Analysis (TIA), 3. a provision for refund of the developer mitigation in ten calendar years, and; 4. the lack of a guarantee that transportation improvements will actually be constructed when needed. As you are likely aware, there has been a lot of recent discussion at the Central Oregon Area Commission on Transportation (COACT) and the Oregon Transportation Commission (OTC) about how best to address the transportation impacts associated with destination resorts. Unfortunately ODOT's authority is very limited, which creates a constant challenge for ensuring that a development pays its fair share of needed improvements. In almost every case, a public share is also required which creates an even greater challenge for ensuring the improvements are actually in place when they are needed. There are many current examples on our state and local road system where there is an existing high priority need to construct significant and costly improvements, but there is insufficient public revenue to do so. Increasingly we are relying on public/private partnerships to get these improvements funded and constructed as soon as we can. Rural interchanges at Highway 126 @ Powell Butte and Highway 20 @ Cline Falls, as well as many urban improvement projects in Bend, Redmond, Prineville, and Madras are all contingent on these types of funding partnerships. 44a In the specific case of Highway 20 in Tumalo, it is important to recognize that there is an existing need to improve safety and operations at the intersections of Cook Avenue and Cline Falls, even without any additional development such as Thornburgh. The reality is that while Paul D Dewey November 29, 2007 Page 2 of 2 destination resorts tend to develop in an incremental fashion over a relatively long period of time, they also create the opportunity to establish a funding partnership to get improvements implemented sooner than if we relied entirely on public funds. Nonetheless, I agree that these types of funding partnerships should be based on the most realistic and accurate cost information and traffic impact analysis available. In addition, we also agree that it would be ideal if we could assure that the improvement is actually in place by a given date or phase of development, rather than leave the construction date totally indefinite. Recognizing that the draft CIA for Thornburgh is dated as are the numbers from which it was based, I have asked my staff to work closely with Deschutes County planning staff and Thornburgh representatives to update the draft agreement to address these issues. That work is underway. Thanks again for all of your hard work on behalf of the Tumalo and Central Oregon. cerely, Robert W. Bryan Region Manager cc via e-mail: COACT Gary Farnsworth Mark Devoney Jim Bryant Joel McCarroll Sate, December 17, 2007 Project 5652 TO* Keith Dagostino John Lietz i Julia Kuhn Tetherow Resort Subject- Response to Ferguson's Letter Per your request, we have reviewed the November 2, 2006 letter submitted by Ferguson & Associates, Inc on behalf of the Broken Top Homeowners Association. This letter focuses on the intersection needs at the Metolius Drive/Mount Washington Drive intersection. It contends that this intersection may require a roundabout "at some point" and that the impacts of the resort to this intersection are understated. As will be discussed in this memorandum, the findings of our September 2004 report are still valid and that this intersection is projected to meet City of Bend operational criteria through the year 2020. Further, as evidenced in the recent study prepared by DKS Associates, Inc as part of the Urban Growth Boundary (UGB) analyses, traffic counts recently conducted on the Westside of Bend are lower than the conditions predicted in the West Bend Traffic Study for year 2007 conditions; therefore, the Westside intersections are operating far better than previously projected within the Development Agreement. Based on our review of the November 2006 letter from Ferguson, the conclusions summarized in our September 2004 report remain valid. The remainder of this letter addresses the specific points raised by Ferguson. Ferguson contends that "59 percent" of the resort traffic would be assigned to Mount Washington Drive via Metolius Drive. He contends that this assignment is inconsistent with the West Bend Traffic Study and therefore, the impacts to the Metolius Drive/Mount Washington Drive and Century Drive/Mount Washington Drive intersection are under estimated. The trip distribution assumptions applied in our September 2004 report are consistent with the West Bend Traffic Study. The traffic assignment is slightly different although not to the degree raised by Ferguson. The traffic assignment shown in Figure 5 of our September 2004 report results in approximately 32 percent of the resort traffic assigned to Metolius Drive; the West Bend traffic study assumed that 44 percent of the traffic would use this facility. Ferguson contends that 59 percent of the traffic would use Metolius Drive but it appears that he did not account for the 15 percent of the traffic assumed to travel to/from the south along Century Drive in his analysis. The difference between the 32 percent in the September 2004 report and the 44 percent in the West Bend traffic study reflects an assignment that is consistent with how the resort is planned to develop (i.e., the most reasonable estimate of ingress/egress options given the actual site plan). At the time the West Bend Traffic Study was prepared, there were no FILENAME: C: Documents and Settings~MCO\Local Settings\Temporary Internet Files\OLK10A~Decemberl7response letter.doc December 17, 2007 Page 2 definitive plans as to how the resort would develop; with more detailed information, a better assignment of traffic could be prepared, as was completed in 2004. The assignment of traffic in 2004 reflects operations predicted at the Metolius Drive/Mt Washington Drive intersection to be well within the levels deemed acceptable by the City of Bend. As discussed in our September 2004 report, although the delays for the eastbound Metolius Drive movements are projected to be high, the volume-to-capacity ratio is well within acceptable ranges and a right-turn lane can be developed to reduce delays on the eastbound approach. Mr. Ferguson is incorrect in stating that volume-to-capacity ratio is not a reasonable manner in which to judge unsignalized intersection analyses. As discussed in Chapter 17 of the Highway Capacity Manual (a document used internationally to assess traffic operations), "it is important to consider measures of effectiveness in addition to delay, such as the volume-to- capacity ratio for individual movements, average queue lengths and 951h percent queue lengths. By focusing on a single measure of effectiveness for the worst movement only, such as delay for the minor street left-turn, users may make less effective traffic control decisions." As stated in the HCM and our September 2004 report, it would be inappropriate to focus solely on the delay of the Metolius Drive eastbound left-turn movement as the rationale by which to install a roundabout at the Mount Washington Drive intersection. In making capital investment decisions and in conditioning land use approvals, the City of Bend reviews the volume-to- capacity ratio, the delay and queuing on the "minor street" approach in order to decide the appropriate form of mitigation. This methodology was followed in our 2004 report. The findings of our report remain valid, including: • The anticipated trip generation of the Cascade Highlands tract is less than that planned for as part of the Cascade Highlands Development Agreement. At full buildout, the uses are estimated to generate 25 fewer trips than the total trips authorized for the Cascade Highlands tract by the Development Agreement and the West Bend Traffic Study. • All of the intersections providing access to the resort are anticipated to operate acceptably, with the exception of the critical eastbound movement at the Metolius Drive/Mount Washington Drive intersection. This movement is anticipated to operate with long delays but an acceptable volume-to-capacity ratio. Further, the anticipated queuing can be accommodated on the approach, and alternative egress is available via Century Drive and Skyliners Road. For this reason, no mitigation measures are recommended. • An eastbound left-turn lane and westbound right-turn lane should be constructed on Century Drive at the future Skyline Ranch Road intersection. A minimum of 75 -100 feet of storage should be provided for each lane. In addition, the methodology contained in our report and the resultant findings and conclusions were deemed acceptable by the City of Bend and Deschutes County as part of the land use approvals for the Tetherow Resort. The Ferguson letter did not raise any substantive issues that modify the findings or conclusions of our September 2004 report. Further, the operations at the affected intersections are well below Kittelson & Associates, Inc. Portland, Oregon December 17, 2007 Page 3 the levels predicted within the West Bend Traffic Study and the needed improvFor these reasons, it can be concluded that the system can adequately accommodate an extension of the Development Agreement. Please contact us if you have any questions. Kittelson & Associates, Inc. Portland, Oregon LICENSE AND WATER AND SEWER SERVICE AGREEMENT BETWEEN CITY OF BEND AND CASCADE HIGHLANDS LIMITED PARTNERSHIP The CITY OF BEND, an Oregon municipal corporation, hereinafter referred to as "CITY" and CASCADE HIGHLANDS LIMITED PARTNERSHIP, hereinafter referred to as "USER" agree as follows: GENERAL CONDITIONS 1. USER has received, read and understands CITY's Water and Sewer Policies. The terms used in this Agreement have the meanings assigned to them by CITY's Water and Sewer Policies unless specifically provided otherwise in this Agreement. The provisions of CTTY's Water and Sewer Policies and CITY's Standards and Specifications are incorporated into this Agreement by reference. 1.1 USER has received land use approval from Deschutes County to construct a destination resort on USER's real property (County File Nos: CU-04-94JRC-05-01, attwhed hereto as Exhibit A; hereinafter'referred to as the "Destination Resort Decisions"). USER's real property is described on Exhibit B (hereinafter referred to as the "Property"), which is attached hereto and made part of this Agreement. USER desires CITY water and sewer service to USER's Property. 1.2 CITY agrees to provide water and sewer service to USER's Property to serve all phases of the development approved in the Destination Resort Decisions. With the exception of the improvements specified mi this Agreement, CITY agrees that it shall not require USER to construct any source, storage, or transmission improvements in exchange for the provision of water and sewer service to the development approved in the Destination Resort Decisions, except to the extent that such source, storage or transmission improvements may be eligible for SAC reimbursement by CITY, and then, only to a maximum cost equivalent to the total water SDC's collected from the USER's Property. City further agrees that it shall. not require USER to construct source, storage or transmission facilities on Forest Service lands or require USER to construct source or storage improvements on USER's Property. CITY water and sewer service shall include potable water for standard domestic use and fire protection, including residential irrigation, and wastewater systems to treat potable water. USER agrees that it will provide all ' golf irrigation water, golf irrigation water facilities, common area water and common area water facilities adjacent to the golf course(s). In common areas not adjacent to a golf course where it is impractical to irrigate with USER's golf course irrigation water, irrigation may be provided through metered CITY water, with advance approval of the City Engineer. 1.3 USER understands that CITY's service to USER's Property is conditioned upon USER consenting to annexation because USER's Property is outside of the CITY limits. (1) USER Hereby consents to the annexation of USER's Property when annexation shall be deemed appropriate by the CITY. WATER AND SEWER SERVICE AGREEMENT Page 1 (2) USER shall also provide CITY with a separate consent on a form prepared by CITY and signed by USER (the "Consent to Annexation"). The Consent to Annexation shall contain a statement that USER waives the one-year provision of ORS 222.173. The Consent to Annexation shall be recorded with the Deschutes County Clerk and shall be a condition and covenant that shall run with USER's Property. It is the intent of the parties that the provisions of the Consent to Annexation shall be binding upon USER and upon USER's successors, heirs, executors, administrators, and assigns, and any other party deriving any right, title or interest in or to USER's Property, including any person who holds such interest as security for the payment of any obligation, including a mortgagee, or other secured party in actual possession of USER's Property by foreclosure or otherwise or any person taking title from such security holder. Receipt of CITY water service by the purchaser of any lot within USER's destination resort shall be deemed to be a continuing Consent to Annexation as a condition of that property owner's right to continue receiving water service from CITY. This Consent to Annexation provided by the owner of any lot within USER's destination resort as a continuing condition of receiving water service shall be deemed to waive the one year provisions of ORS 222.173. If the owner of any lot within USER's destination resort objects to annexation or otherwise attempts to defeat annexation, then CITY may, at its option, and upon written notice, discontinue water service to that owner. (3) CITY agrees that the Destination Resort Decisions and any subsequent land use approvals, building permits, or other entitlements necessary for construction of USER's destination resort, shall continue to apply to the development of USER's Property following annexation. (4) CITY agrees that any new zoning and/or comprehensive plan provisions adopted to govern USER's Property following annexation shall allow USER to develop and modify USER's destination resort consistent with: (a) Title 19 of the Deschutes County Code CVCC'~; (b) The Destination Resort Decisions; and (c) Any subsequent land use approvals, building permits, or other entitlements necessary for construction of USER's destination resort. (S) CITY agrees that any new zoning and/or comprehensive plan provisions adopted to govern USER's Property following annexation shall be consistent with the provisions of DCC Title 19 to the maximum extent practicable under existing laws. (6) CITY agrees that USER's destination resort shall not become a Nonconforming Use, as that term is defined in DCC Section 19.04.040 and Bend Code Section 10-1 OA, following annexation. WATER AND SEWER SERVICE AGREEMENT Page 2 1.4 USER. and CITY intend that all provisions of this Agreement shall constitute a covenant running with the land, binding on the USER and the USER's heirs, successors, or assigns, including purchasers of individual lots, including residential lots. 1.5 USER agrees to pay applicable water and sewer System Development Charges ("SDCs") in accordance with CITY laws, rules and regulations. If CITY adopts additional SDCs, including a storm water SDC, USER agrees to pay such additional SDCs when the SDCs become effective for all structures built after the effective date. USER further agrees to pay a water SDC surcharge in the amount of $375 (three hundred seventy five dollars) per equivalent single family dwelling for costs incurred by CITY for developing new groundwater water rights necessary to expand the capacity of CIl"Y's water system to serve USER's Property. CITY and USER agree to review the water SDC surcharge each year on the anniversary of the date of execution of this Agreement. If CITY's actual cost of groundwater rights has changed during the year, then future water SDC surcharge amounts will be adjusted accordingly as to any property paying the SDC in the future. There shall be no obligation by either party to pay retroactive adjustments for the water SDC surcharge as to properties that have previously paid the surcharge. CITY shall collect all applicable SDC's at the time water meters are installed. Water meters shall only be installed by the CITY upon payment of all SDCs and other fees established by CITY resolution. No water or sewer service shall be provided by CITY until a CITY water meter is installed by CITY or a licensed contractor approved by the City for the installation of CITY water meters. Prior to annexation by CITY, water and sewer SDCs shall be collected as a condition of commencement of water and sewer service. Subsequent to annexation by CITY, water and sewer SDCs shall be collected as provided by then-existing CITY policies and procedures. 1.6 USER agrees to pay applicable transportation SDCs, in accordance with CITY laws, rules, and regulations, as follows: (1) USER shall pay transportation SDCs at a rate of 100% of the, maximum allowable SDC for all individually-owned single-family dwellings, townhomes, and cottages, both attached and detached. (2) In lieu of paying transportation SDCs for all residential units qualifying as Overnight Lodging Units as that term is defined by DCC Section 19.04.040, and for all resort-related commercial and recreational facilities, including golf course facilities, USER agrees to the following terms: (a) Per Section 1.6(1) of this Agreement, USER agrees to pay 100% of the raximum allowable SDC for all individually-owned single- family dwellings, townhomes, and cottages, both attached and detached. This constitutes a 20% increase over the standard SDC rate for single-family dwellings set forth in the SDC ordinances and policies in effect as of the date of adoption of this Agreement. (b) USER agrees to dedicate up to 100,000 square feet of USER's Property to the public to enable CITY to construct a roundabout at the intersection of Century Drive and Skyline Ranch Road. USER WATER AND SEWER SERVICE AGREEMENT Page 3 and CTTY agree to cooperate in good faith to finalize a roundabout design that is generally centered on the existing right-of-way of Century Drive and that is consistent with USER's design for the main entrance roadway alignment to the destination resort. Per USER's Destination Resort Decisions, any portion of USER's property at the intersection of Skyline Ranch Road and Century Drive that is not dedicated to CITY for the roundabout shall remain in open space, as defined by the Destination Resort Decisions and DCC Title 19. USER agrees to grant CITY appropriate easements necessary for utilities associated with the roundabout on its property near the intersection of Skyline Ranch Road and Century Drive. (c) USER agrees to construct Skyline Ranch Road and Metolius Drive to the standards specified in Exhibit C. Although USER would be eligible for SDC reimbursement for up to 80% of the cost of construction of these Qualified Public Improvements, USER agrees to forego SDC reimbursement for the construction of Skyline Ranch Road and Metolius Drive. (d) USER agrees to construct a roundabout at the intersection of Skyline Ranch Road and Metolius Drive. Although USER would be eligible for SDC reimbursement for up to 80% of the cost of construction of this Qualified Public Improvement, USER agrees to forego SDC reimbursement for the construction of the roundabout. 1.7 USER shall be eligible for SDC reimbursement for Qualified Public Improvements, as defined in ORS 223.304(3), in accordance with CITY laws, rules and regulations and on the same terms as all other CITY users, subject to the exclusions set forth in Section 1.6 of this Agreement. USER shall be eligible for SDC reimbursement prior to annexation of USER's Property. PROVISION OF WATER AND SEWER SERVICES 2. Services shall be supplied only through facilities constructed and installed to CITY Standards and Specifications and owned by CITY, except that USEWs service connections shall not be owned by CITY. All facilities except USER's service connection lines shall be installed within public rights-of-way or CITY easements. USER shall dedicate standard easements and rights-of-way to CITY over USER's Property for all water and sewer facilities, except USER's service lines. All easements and rights-of-way shall be granted to CITY free and clear of all liens and encumbrances, according to CIIY's policies, standards and specifications for easements and rights-of=way. 2.1 USER.shall not connect to CITY's facilities until CITY accepts any facilities installed by USER in writing. CITY's acceptance shall not be unreasonably withheld. With the exception of fire hydrants, standpipes, and related facilities necessary to enable USER to WATER AND SEWER SERVICE AGREEMENT Page 4 commence construction of the destination resort prior to completion of all water and sewer facilities, CITY cannot accept facilities unless paved access and sufficient Wrnarounds are provided for CITY maintenance vehicles so that maintenance vehicles have access to all parts of the water and wastewater system. USER shall provide all plans for all facilities covered by this Agreement to the City Engineer for approval prior to construction. Such plans shall demonstrate that USER will provide paved access and turnarounds for CITY maintenance vehicles. ' CITY's approval of such facilities is a condition precedent to CITY's obligation to provide water and sewer service. 2.2 USER shall promptly pay all charges for CITY water and sewer services when due. Charges shall be as prescribed by the appropriate schedule and may be changed from time to time. 2.3 USER hereby grants CITY a license to enter and remain upon USER's land for the purpose of inspecting construction of USER's water and sewer facilities that are subject to this Agreement, and for the purpose of enforcing collection of water and sewer bills according to CITY's standard policy for termination of service on unpaid accounts, and as otherwise provided herein. 2.4 No other use of CITY services or CITY facilities shall be permitted without express written consent of the CITY. 2.5 USER shall comply with all applicable governmental laws, rules and regulations including but not limited to CITY ordinances, resolutions and the provisions of CITY water and sewer policies as they now exist and as they may be changed from time to time; provided, however such policies treat all CITY users uniformly. 2.6 Compliance with CITY ordinances and water and sewer policies shall include, but not be limited to, compliance with CITY design review standards for sewer, irrigation systems which deliver CITY water, and water facilities. USER shall submit to CITY whatever information is required by CITY to determine that design review'standards for the USER constructed portion of the water and sewer facilities will be met by the USER. USER shall also demonstrate that USER has obtained site plan approval for any commercial buildings to be constructed on USER's Property from Deschutes County consistent with DCC Title 19, or from the appropriate local jurisdiction per any subsequent zoning ordinance. EXTENSION OF WATER AND SEWER FACILITIES 3. USER shall comply with the following conditions if service to USER's Property requires extension of water or sewer facilities. 3.1 Except for water meters which will be provided by CITY, USER agrees to supply all of the materials, and perform all work necessary for the construction of water and sewer facilities required for development of USER's Property (the "Work") at USER's sole expense and in accordance with the CITY's Standards and Specifications. This excludes source, storage, and transmission improvements to be financed by CITY with funds generated by SDCs, per CITY's Water and Sewer Policies and CITY's SDC Ordinance and Resolution. USER will construct the Work in phases, as and when reasonably necessary to provide water and sewer WATER AND SEWER SERVICE AGREEMENT Page 5 services to the phases of its development. USER agrees that the Work shall include installation of water service lines with meters and housings, as required by applicable law and/or CITY policies. All water meters shall be provided by CITY personnel upon payment of all applicable fees and charges established by CITY resolution, including, but not limited to SDCs,. as provided in Section I.S. 3.2 The person, firm or corporation hired by USER to perform the Work shall have construction liability coverage. Coverage shall be in the amount of a one million dollar combined single limit for bodily injury and property damage. CITY shall be named an additional insured on the policy, and a certificate of insurance shall be provided to CITY. The insurance may not be cancelled except upon 30 days' written notice to CITY. USER shall hold CITY harmless and indemnify CITY from any liability of any kind in connection with activities resulting from this Agreement, except to the extent the same arises out of the negligence or willful misconduct of CITY, its employees and agents. 3.3 USER agrees to submit to the CITY a statement of all costs incurred on the Work upon completion of the Work. 3.4 CITY will charge its standard rates and fees, pursuant to the rate and fee schedule and resolution applicable to water and sewer service users located outside the Bend Urban Growth Boundary. In addition to rates and fees applicable to ongoing water and sewer service, USER will pay all applicable SDCs, including the water SDC surcharge in addition to CITY's standard water SDC, as provided in Sections 1.5 and 1.6. 3.5 USER shall obtain any necessary Oregon State Highway, CITY or County street cut permit prior to any construction of the Work in right of ways. Upon request by USER, CITY shall cooperate with USER in obtaining the same. 3.6 Upon request of the CITY, USER agrees to deliver to CITY "As Built" reproducible drawings of the completed Work, signed by an Oregon professional engineer prior to acceptance of the Work by CITY. 3.7 Commencing upon full execution of this Agreement and during the terms of this Agreement, USER shall pay CITY inspection charges and plan review fees as applicable in accordance with CITY city-wide policies in effect from time to time. 3.8 CITY may terminate water service to the owner of any lot within USER's destination resort for a material breach of this Agreement. In the event of such breach, CITY shall provide such owner with a written 30-day notice to cure the breach. If the breach is not cured following the 30-day period, CITY may terminate water service without further notice or hearing. 3.9 Nothing in this agreement shall relieve USER of any obligation under its conditions s of approval in the Deschutes County "Destination Resort Decisions." DATED this day of ~u 12005, WATER AND SEWER SERVICE AGREEMENT Page 6 CASCADE HIGHLANDS COMPANY BY: STATE OF OREGON LIABILITY SS. County of Deschutes ) This instrument was acknowledged before me on the _qzTl day of 2005 byon behalf of CASCADE HIGHLANDS LIMITED LIABILITY COMPANY. OFFICIAL SEAL SUSAN L. GADOTTI NOTARY PIBUGOFIEQON COMMISSION NO. 376231 O ~y PUBLIC F RE N MY COMMISSION E%WRES FE@RUARY 23, 2006 My Commission Expires: WATER AND SEWER SERVICE AGREEMENT Page 7 CI'T`Y OF BEND BY: 4je&Ek&=~ arold A. Anderson CITY Manager STATE OF OREGON ) ) ss. County of Deschutes ) This instrument was acknowledged before me on the _ day of 04- , 2005 by as the City Manager for the CITY OF BEND, an Oregon municipal corporation. 4 & AM T.A RY PUBLIC FOR O N O My Commission Expires: OFFICIAL SEAL KIM PARSONS NO'T'ARY PUBLIC-oAEGON COMMION 375857 MY COM IISS ON EXPIRES JOAN. 6.2008 WATER AND SEWER SERVICE AGREEMENT Page 8 J~ 1 9 cur O 5 / No financial consideration Taxes mailed to: N/A COUNTY NANCYUBLANKENSHIP,PCOUNTY CLERKS 2001-AM IIIIIIII IIII 1$181.00 00353783200700344090310313 06/19/2007 11;29;54 AM D-AG Cnt=1 Stn=1 BN $133.00 $11.00 $10.00 $5.00 COVER SHEET FOR RECORDING ADDENDUM TO LICENSE AND WATER AND SEWER SERVICE AGREEMENT "USER" - ARROWOOD DEVELOPMENT LLC "CITY" - CITY OF BEND Cascade Highlands - Metolius Dr PZ07-15 ps 31 page document / After Recording Return To: City of Bend Engineering Division U~ PO Box 431, Bend, OR 97709 ADDENDUM TO LICENSE AND WATER AND SEWER SERVICE AGREEMENT The CITY OF BEND, an Oregon municipal corporation, hereinafter referred to as "CITY" and Arrowood Development, LLC hereinafter referred to as "USER" hereby execute the following Addendum to that certain LICENSE AND WATER AND SEWER SERVICE AGREEMENT BETWEEN CITY OF BEND AND CASCADE HIGHLANDS LIMITED PARTNERSHIP dated August 4, 2005 and recorded in the Official Records of Deschutes County at Volume 2005, Page 73584, hereinafter referred to as "Water/Sewer Service Agreement." GENERAL CONDITIONS Al. USER has received, read and understands CITY's public facility improvement policies which are incorporated herein by reference. The terms used in this agreement have the meanings assigned to them by CITY's policies unless specifically provided otherwise in this agreement. A1.1 USER is the successor in interest to Cascade Highlands Limited Partnership and is developing the Tetherow (formerly Cascade Highlands) Destination Resort on the property referred to in the Water/Sewer Service Agreement referenced above. A1.2 USER desires CITY's acceptance of public dedication of street facilities and the extension of these public street facilities, as described herein, to USER'S property referred to in the Water/Sewer Service Agreement referenced above. A1.3 USER and CITY intend that this agreement shall constitute a covenant running with the land, binding on USER and USER'S heirs, successors, or assigns. A1.4 USER agrees to pay applicable sewer, water and street System Development Charges (SDC's) in accordance with the Water/Sewer Service Agreement referenced above. ACCEPTANCE OF PUBLIC DEDICATION A2. USER and CITY acknowledge the public dedication of the street facilities known as Metolius Drive on Plat No. 818, Broken Top through Dedication Deed dated November 8, 1994 and recorded in the Official Records of Deschutes County at Volume 361, Page 0154 (Hereafter "Metolius Drive). Based on the land use decision approving the tentative plan for Tetherow Destination Resort (County file no. TP-06-973), USER and CITY agree Metolius Drive is necessary as a public right of way for access to the Tetherow Destination Resort. CITY agrees to accept the public dedication of Metolius Drive by executing and recording in the Official Records of Deschutes County the Acceptance document attached hereto as Exhibit "A." All obligations and provisions of this Addendum are expressly conditioned upon the CITY's acceptance of the public dedication. A2.1 CITY's agreement to accept Metolius Drive shall not be effective until USER agrees to financially assure USERS obligations hereunder in a manner acceptable to CITY in an amount reasonable necessary to secure USER's obligation to complete all improvements shown on attached PDX/113803/144541r MU1510350.1 Exhibit "B." PROVISION OF PUBLIC STREET FACILITY IMPROVEMENTS A3. Upon CITY acceptance of public dedication as set forth in Section 2, public street facility improvements shall be supplied by USER through components constructed by CITY approved contractor, installed to City Standards and Specifications and owned by CITY. All public street facility improvements shall be installed within public right of ways or CITY easements. Easements shall be granted to CITY free and clear of all liens and encumbrances. A3.1 USER shall not connect to the public street facility known as Metolius Drive until CITY accepts the public street facilities improvements described in Section 4 installed by USER in writing. A3.2 USER agrees to construct the public street facility improvements described in Section 4 prior to occupancy of the 100th residential unit at the Tetherow Destination Resort or 2 years from the date of this Addendum Agreement, whichever is sooner. A3.3 USER agrees to maintain a locked gate at USER's boundary until such time as the public street facility improvements described in Section 4 are constructed in accordance herewith and accepted by CITY. A3.4 Except as otherwise set forth herein, USER shall comply with all applicable governmental laws, rules and regulations including but not limited to CITY ordinances, resolutions and the provisions of CITY public facility improvement policies as they now exist and as they may be changed from time to time. Any failure to comply with all terms and conditions of this agreement shall entitle CITY to terminate facility improvement services at CITY'S sole discretion. A3.5 USER shall execute the required CITY Public Facility Improvement Agreement (PFIA) prior to construction approval and shall abide by all terms thereof. EXTENSION OF PUBLIC STREET FACILITY IMPROVEMENTS A4. USER agrees to perform all work necessary for the construction of the public facility improvements to Metolius Drive as shown on the preliminary drawings titled Tetherow Resort - Metolius Drive Improvements attached hereto as Exhibit "B", at USER's sole expense and in accordance with the City's Standards and Specifications. PUBLIC FACILITY IMPROVEMENT REIMBURSEMENT A5. The parties agree USER shall be entitled to full reimbursement for 92.1 % of the costs of the public street facility improvements as set forth in Exhibit °C" attached hereto. ADDITIONAL CONDITIONS A6. All terms and provisions of the Water/Sewer Service Agreement and PDX/ 113803/ 144541 /TMIJ 1510350.1 Development Agreement related to the development of the Tetherow (formerly Cascade Highlands) Destination Resort shall remain in full force and effect. A7. Execution of this document constitutes an accord and satisfaction between CITY and USER of all claims that have been brought or that could have been brought in connection with the public acceptance of Metolius Drive as those claims relate to the Development Agreement executed by the CITY, Deschutes County and USER's predecessor(s) in interest approved by CITY by Ordinance 1757 on October 18, 2000. 7-14 DATED this S day of uM- 2007 USER By: 'ATE /OF OREGON County of JI~II Q~1#'M~IN. NOTAFIY P~ COMwssjoN No. 393761 M1Y COMMISSION EXPIRES JUNE 12, 2009 This instrument was acknowledged before me on UAk1 W by asp for Arrowood Development. LLC. C~V~U&M") NOTARY (AJBLIC FOR OREGON CITY OF BEND Accepted By: STATE OF OREGON County of Deschutes This instrument was acknowledged before me on 4 ► 3 101 by ~V,rzArl 6 Ckv4 , 06-s C for the City of Bend. I O ARY PUBLIC FOR O EGON OFFICIAL SEAL KIM PARSONS NOTARY PUBLIC-OREGON . 375857 MY COMMISSION EIXPIRES JOA N. 6, 2008 PDX/113803/144541 gMLJ1510350.1 EXHIBIT A DEDICATION DEED ACCEPTANCE PDX/ 113803/ 144541 aMU 1510350.1 EXHIBIT A DEDICATION DEED ACCEPTANCE Cascade Highlands Limited Partnership, Skyliner Summit Limited Partnership and Broken Top Limited Partnership ("Grantors") dedicated the certain real property located in Deschutes County, Oregon, identified as Metolius Drive on Plat N. 818, Broken Top to the public for Right-of-Way by Dedication Deed on November 8, 1994. That deed is recorded in the Deschutes County, Oregon Record of Deeds at 94-49041; 361-0154 through 361-0156. That Dedication Deed was conditioned on acceptance of the Dedication Deed by the City of Bend or Deschutes County, whichever had jurisdiction. Said deed is attached hereto as Exhibit 1. By Plat No. 818, Grantors also dedicated the same Right-of-Way to the public, conditioned on acceptance by the City of Bend or Deschutes County, whichever had jurisdiction. Plat 818 is attached hereto as Exhibit 2. The legal description of Metolius Drive is found on Plat No. 818 (Exhibit 2 hereto) and on the Statutory Bargain and Sale Deed, recorded at 2001-62394 of the Deschutes County, Oregon Deed Records as: "That parcel of land designated as "Metolius Drive", as shown on "Plat No. 818, Broken Top, Phase III-E," recorded in the Deschutes County Survey Records as CS12044." (Exhibit 3 hereto). The City of Bend hereby accepts the Dedication deed for Metolius Drive, as described herein, as public Right-of-Way. Accepted by City " 0 ' Harold A. Anderson, City Manager State of Oregon County of Deschutes ss Subscribed and sworn to before me this L?D_ day of June, 2007 of ry Public for Oregon My Commission Expires: ~n Dedication Deed Acceptance (Metolius Drive) Page 1 of 1 Attached exhibits consist of 9 pages OFFICIAL SEAL KIM PARSONS NOTARY PUBLIC-OREGON . 37557 MY COMMISSION EIXPIRES JOA N. 68, 008 After recording return to: City of Bend Engineering Division P.O. Box 431, 97709 r 1 k t i 1 ON DEED r rs., bosom i to the I;i?)I~i'tl 1;3it, FCC tt 'I`cttt i ri e 01,54 -.:.7 i3a rit -a shayi SU e3 ni!4? 3`i :,T)S F_LNSltE D PA , i - :{.FFII~~,~}°>F(, `~r-.! . :1.Itta~t .R';ii 1„,?r icnZ Iv.,? LTIM'11 'D KSIUt l_ t G: i.i ~a.. pi:..~.l1.ni p:lrtty -lmt "•~1a3i fi Cow% Of"non, ideru ed as Y,.: usius Drives on Plat W 919,13a l c-i Top ("'prcfwty"), ORS 91014 17 7y Dc chulcS C'pu or iff..a,._ ter o to Such appro" . by I fl" City of Rend, . 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Crania c: its h 'rs oc xcsisns, skint toE~Fy K~L» v-a7r iau v.{ ~pt',val Y ,naYatr n~ ~~».3.~?C.Lhu ccr!airt `~indingc and L zcisit ' Cf E3 }:carx c C ep..a, rile AT~CU-93407 k TP 4} j$ dtted t~± h 1994„ ns noty 41 31 C:aCtcc snalf cdz s.t c Praputy t3 ilzc Cicy'tfBtrd'sf d vii ua ti t City of Cut a~n1s Ev sxnunat sid shall matatcta 414 F 5 +a of su. d t3rst an I ,Gr-:-1Tee or its I aitA ar atsi,*A t'rar faits to wmF y with Uz.c mr(didr= ro:t',afsr d hexti"), tttc C"Ator tsr its kcirs or awips sasy treater t ub 'rrmitsaL: tt'a2 esuta tuse'oy ~mv:::ycrL TITS" It 3TXTPd3r.N1' W XL NOT Rc.LOVI USF OF THE PR0YR?tt't'X' DSS~CvIRT1b 113 TWS 12 AntWEN4T It VIOLA=tl QF API,1 CABLS LA)~€D Us'4 T,AWs A.4Ty F2 OU-LA71ONS. ftl-MR18 S Ur'MG (A ACCVT)31G ~F,fS TtiS3k~tT,2Ehri, TT3--F- FiR N f4:,'QYSPrUNQ PER m n-8 'to Tie P t(,-)pp Ty SHO"I:,o CHtFcr, ' rrrr3 Ta : ?ROi'-A,vM CITY o?, covri2-:r P FNG ` v-VA1 n,0g r To VR n:,y TA,*VRt) USSS AND O f it?R3. A rn ANY U MM 04 LAW9tATS AQ.k,*`S;` TARz'vft Tt; Of = et: I ~.SC.4L1E HIQML ANDS L ,iT"f7' 1 FAF;Tivi']:S:LT , Q3* grn firnVed pVfncr htc sy: -q u-uk = lay, STAFF OF 4.C^P" -The fort oiriF ir~tztuc cac w6x lckiowlcdgett bitbr4 me thin Li-~,dyy 0i bec r, ml, by Joey R alfaat0r wbo Jr the Nr,-sjdcac ez ' ice, is ~ t1w ~s ~ r , ~•t er of . ~'ssc24ctT't¢tUszttls Limited Fuc;.srshp, a-~~ r~ai€ofzte ~~en:hil+. A."111,111,111,111, L r+~ rrriat~ 14),C ztestae frae C d I I y ' } y 1 3 i a a s • I I . s t DOCUMENT POOR QUALITY AT TIME OF REQQRDING. HAY D, rH0 0 r,!~R 0' AG OS 41tiv f• D03 X004. S ~IG'1C1 aE''l' iu G1.02 1 . T. C. k PAX "'10.541 312 4053 u 3sr2de Ifieblands Limited Nrtncei-shrp to Broken TOP Commimity Amci ttion s Legal Description i Two (k) par~~"'ls of )aid looted in ^.e sc,~tnra,; o~vc-cuas e (3F,1/4} of S'ec-%bn 1, tlta nor?:oast me-quartrr CNE-114) o Section l~2, Township $ Sauth,'R ngc i l East, ~j),d s t e zzozihwESt drt-gawrtc; ©fThc solvh} fcst One-quf•te1(NWV4 SW;/4) of Sec-o t ; TOVjmhip 19 Suulll, Range 12 Easy;, Wiilawatte Melydiaft, in 'ke C iTy ?t 8t nd, Dcacbutts C_ cunt}, CI'° 071, T of--}-~iilaTly jvc ibmi &s follo 8: ~ k iluzt paic4i of1wid designattd "}rle'rCius i✓c as shown fm "'latNa, &18, 11,m1«r Top, Phase 11; ccaY lei? i; thn Uesahut:.s Cataity survr;rr+ orris r2s CS120,,3, } rt Together with, That parcel of la ,d deli sa d as ' Tevlls i~ &t in said Szc*3an I, as .5'ho vu an "1'ia& No. 819, A;•e?~e:) `dap, FLzze Iii-.,P'; t'acord~-d infl,~ D,;cbutea L~',:my st-m,y =-orrls ax C812044. g , ' I t j r It • E i . a . _ ~ . 8 S$+T70iF1tYbCd7Mtfaeil Ail moo) 4 i 9 DOCUMENT POOR QUALITY AT TIME OF RECORDING. !yF 1~2, 5. `Y ~,~f 14i 08.03 A V . Iti / A 22~ r` B.C.C. Fit: ko, ~4i l? 05 3 uOd t 2,53 2S8 ki5~ ri~Q 2G: ~ 26~ LDti 265 E57 27) 2~D ib8 / RC» r 28gA aG2 yRy}$ to SGb ~ ~a',iC3' 32; CIA X11 5d"f A 98 X94 5CQ .17 .~5 04 t 3#$ ~ tt4fi 5 i i t 2 546 .4lr~ "?"t7A(y'x t 't'T~AC:'~ ` RITIGEV~ ~z 2s S5 26 ~3AL1~3t38 Bait :3D! "FI,? ~ X67 _A _ b. :rsn ~ _ 2,C4k ~ 5S S$ Yr.~ to 9 I 5Pd 027 q0d 395 894 ;IVT x 45 1 R fU#C T £ ?7 PARXS stl t Tp+ cr K aas soN SAO 4 c y .yA~Tt~$ X00 a iR.(1.~i L CA7 T8l C1' GJ s 3! ° TOP 3 404 0 TO 0r0kV,4 "TOP Community Association Broko Top ,Phases Ill-C and 111-1= utwt!astt> ar, J~M1P~ Exhibit Map i ~Ma Y t@a •+w~.. J'",xt~r,' a.]5 «»tk5tr nat~1 ~ ttrrn7tr.t~~~ 7;/1 f a E C t t j' 1 2 I a a P DOCUMENT POOR QUALITY AT TIME OF RECORDING. EXHIBIT B METOLIUS PRELIMINARY CONSTRUCTION DRAWING PDX/113803/ 144541 /TMU 1510350.1 III k . A a A O O ? o a a O O ~ a ma m n z z n n x n m' n °z !n c n Z r G~ Z k Fli ~ r R1 ri m O cZi ~ t- II C C/) m v 0 A ~ a r O Q ~+J 0 n o II ~ _ n UO y U rTl L,a ~ O ti m O mok. ~ om ~ n o a\ d a o \ ~ 1 m n ~ \ z i 38 ) n oo O I'•, ~q ,a'r i i i \ .t / q M 1 im n x n m n ZA o,. 0a X 0 o z 1 mmn y H Oz i 0 m, ; O r' N; o A' a' m! n Pnm y Z X 'A v VI ~ AZA nsn ~ 8Z ,ZI A 0 p n o Y < ~ to 1 0 G7 a E ~ aU Z, CNECKEJ e„ DN Dr p Appnn r ARROWOOD DEVELOPMENT usr Ear. a a ow aor DACE: whnNY CASCADE HIGHLANDS (TETHEROW) RESORT DAM BY REV RE 9. ply n METOLIUS DRIVE IMPROV IYAgostina Parker LIZ EMENTS , O PRELIMINARYPLAN - FEBRUARY V TODI SCALE: PROJECT N0. DRAWNC FILE NAME: WC. AS SHOWN FILE NA P.6/11~IIlBO7 F.IS111 Si-eBx7 031398 JJ666-U 001 i B t Exhib 1 of 7 k \ 2 O 1 ~ A~ ~A ym 2mi V, a z• 0 0 C) o 0 A = p O O O tA'1 ' 'a a ~ m aNI a A m a z z ~ n x a -c m 0 i m f~ vx_i z CZi D z r Z A ~ y 0 0 a D a 2 c~ r C) z o I I `,I E i 4 I , m m O !i II C. C • ' O ' I m + I D a- nm~ ~ZOA =m X gRO EECREEK /KZ,4 £OAO r0 4 I W O Z O C7 II m n v, D o~ r m w -i O C-3 133HS 33S See SHeeT C-1 CREEK 41CLACfAO ro A qz wtorEB Br. - ARROWOOD DEVELOPMENT LAST DRAW EDRAW r91, . BaSAP APPROY BC CASCADE HIGHLANDS (TETHROW) RESORT [ tfps nor BAa: ~ D'AgoStino Parkcr, LLC BATE BY RCY REN40N METOLIUS DRIVE IMPROVEMENTS rvb PRELIMINARY PLAN p BENB Bii1B1ES IEaluMr r. IWl P.611(~BOT ~1 SCALE• PROJECT N0. ORAKiNC FILE NAME: B~~IIffiT v AS SHOWN 031398 J366n-L1ND-CA01-MstW(u Exhibit B 2 of 7 k A 2 N ~ m A o n ` o z ci X O 2 O A a ~i ti 0 a a z r 1Tl C Fri 0 z m In a m c„ 0 Z o II m n o~ r wm o y O Aj .l P-C V v f ~ 1 ' r . WECNEO ARROWOOD DEVELOPMENT OFAT T. =F APPF DATE. 81 _ CASCADE HIGHLANDS (TETHROW) RESORT LAST EaL Kv, nor A¢: os n D'AgwUno Parker, LI.C DA fE 0Y MV RE- « METOLIUS DRIVE IMPROVEMENTS w PRELIMINARY PLAN ~E CRUM /FB "ND~" p 6EN0 ALNNIES myv m? nfbl11 dlG7 '1 SCAIF: PROJECT N0, DRA N/NG FILE NAME: AS SHOWN 031J98 .17868-1AND-COOI-U02!w Exhibit B 3 of 7 SEE SHEET C-2 Pefh: l:~ 1.d \arenfz\ .wd\w.fWw. u dw. ar+\e z-M.e w 05z901.arew[e elb- / ^ 0 99 AaF Fan Oafa: SS 9 Y00~ 15 PM Wfn Uar flo fr a,l NH r Sf r: Xd T 5-~ 133HS 33S r z I ~ >r{ ~ k 1 k a A A ' ~ I ()n z o o r~ If Hn° I cn D i --J A o o o , rfo ,J C3 a f , i ~I!O~ o n o I u- J~' A o y I ~J•7 z z w z I r' Z i A _n j 1 i o I i I cI n / f I I r m ' m i n C i~ m 1 il~ 115 i A o co z ti g cn ~ ~ I ~ + I y Vl 4I r t t I \ 3. / - 1 z a 1 m w x O \ D a{ £ r N w z o A o~ r l \ FTI Ol 0 tHEa(m 9r. ARROWOOD DEVELOPMENT OR- 9n BAP APPRON 9r._ CASCADE HIGHLANDS (1ETHROW) RESORT LW LASr EDIT. nLzvz PEOF BAR: 001""7 D'Agostino Parkef, LW 9Ar 9Y REV REN90N METOLIUS DRIVE IMPROVEMENTS is PRELIMINARY PLAN : m nblit y?!Wr p BEND offs FEMARrY 2907 ~1 SCAEE: PROJECT NO. DRAM G FILE NAME: Pitt v AS SHOWN 071398 !3888-LAN8-CGGi-Mbtotfu Exhibit B A ,.F'7 m I3 I - I Z X A C) i._ COI I 0 Q H ` + i C) o o i1 glg +81 ~d n mo i ~f I j ~ m v~ 1 o z z .i I ' `.I` I 'Z U ~ I I s C~ D m ~q I - ~ 1 I ` Z m I 11 I. 11''5 ~ b I I 0 Z ~ I ldi ro r.. ~pz 0+81, p D' U) m `1 4- I 1 ;jp'~ n 1 1 m~ 1 m z " m III C M N Q ° ~ D a 1 v G7' o .>J ao ► n 1 m; yz 1 n-' ~m nz -z4 1 y I S Z o m... D 1 p ► J \ < tl► ~ \ 1 D ° 6 x cn m II m n I m u D y fTl f J m w C) 1 Zn O -i v SN c.4 ~ \ SEE EE GNEtltFD Br: ARROWOOD DEVELOPMENT oBAxv Br. BAP APPR- Bn_ CASCADE HIGHLANDS (TETHROW) RESORT AS 51291~KOTDAW. B,/"ro, METOLIUS DRIVE IMPROVEMENTS D'AgostitroParker,LLC DAfE BY REY REN50N fX art ALSHOM ve wmm n„ PRELIMINARY PLAN ARYP pB R0111]~MZ! j1 SCALE: AS SHOW PRCJECi NNO.1398 J166BNUND-CD01-M~tdW Exhibit B 5 of 7 X A A A O O C) O O o ° m a o K m °m D z z n a D n _ ! L- ~ i 13~HS 3~S I r L, Z ~ I; I I O a I I ' 3 I' 1 , } f 1 I NJ M, 1 I 1 O 1 ° , OI ~ 1 b m° I I I IPT' 22# 7 .7g ° .I 1 A mk m 1 Z~ ~ 111 v 7'~~ ~ ' n I h~ a I a l t ~ I I ° n m ` t cn I C oI °a~ 'sue x ° (n gym; Rl< IO Sy oCO ~ VA m ' 00 2 r IRR,ml rn = A ZO t+ r Dn O C() A~ n m ~A ° N ~ do i I ~ ~ t`~ i 0 o a + ' "zt A 1 l a D 1' O ! n ~I m m C7 -a ~ y 'I vl ~ !i 2 f ~ m m a~ 1 x hN Im., i1 3 i , 1F C 2 z ~ A "i °C) O AC N z o I Ln N o did rTl EVILS LAKE ~J o I o m DRIVE;... o z X O On 2 O m° i C 'a n EE SHEET C-5 olECxEO er. _ ARROWOOD DEVELOPMENT weAwN er. e~R ~RRao~o en_ CASCADE HIGHLANDS (TETHROW) RESORT usr EDrr. s~~ w.or ogre: g~pT D'Agoatlno Parker, LI.C DAM a. REV N9DN METOLIUS DRIVE IMPROVEMENTS n v, PRELIMINARY PLAN a~D DD.,~TB BEND SpW re5 rEHRVAAY v ID01 P.1511192lBDi SCALE: PROJECT N0. DRAINNC FILE NAME: P: f6109IId[ZI AS SHOWN 03I398 JJ688-LAND-C00I-Notalu Exhibit B 6of7 r z o X A A 2 0 A O O ti ~ O 0 o m ~ a o p _A m n z z ~ n n m n 0 N 0 c~ X R1 2 m cD o r z z No 0 A a n 0 Z O II m n worm r- c„ 0 ti 0 to a m 0 II C O CA v m nOAA mAr~a ~;ao oa<o 2 ^ ~~~N Z7 G) o m=cn cl) n m aF cn 0 a zo on ~2 ~m my r O r 'i px I:: n Z~ CHEGNED BM _ DRA NN Br: BAP APPROZ BM_ LAST EMP. OLYY !W! P~Or DAZE: M/S9/b) DATE BY BENSON fX V ~ f 3 C zD Boa m cj) gym" y ~ I VA=O ~ i to D 2 A ' ~ p O i I ~ I y pp' -t M Z G t ) m O D ` ARROWOOD DEVELOPMENT CASCADE HIGHLANDS (TETHROW) RESORT METOLIUS DRIVE IMPROVEMENTS PRELIMINARY PLAN :swuas TEBmiARr PROJECT NO. DRAWING FILE NAME.., D'Agostlno Parker, LLC RJI BGZK0UM L0DP:WM = 391102 v,wnsaaezr Exhibit B 7of7 EXHIBIT C METOLIUS PRELIMINARY COSTRUCTION COST ESTIMATE PDX/ 113803/ 144541 /TMU 1510350.1 6/5/2007 EXHIBIT C Tetherow Resort Metolius Drive Off-Site (Through Broken Top) Improvements Preliminary Project Cost Estimate - May 24, 2007 Item Description # of Item QTY Unit Unit Cost Item Cost 1 Clearing and Grubbing 2 AC $ 2,400.00 $4,800.00 2 Unclassified Excavation 2,000 CY $ 15.00 $30,000.00 3 Drainage Swale Excavation 500 CY $ 15.00 $7,500.00 4 Standard 14" Vertical Curb 5,800 LF $ 8.50 $49,300.00 5 3/4" Minus Aggregate Base, 8" Min. 3,700 SY $ 7.50 $27,750.00 6 0"-2" Cold Plane Pavement Removal 25,000 SF $ 0.55 $13,750.00 7 2" HMAC Pavement 2,400 SY $ 8.00 $19,200.00 8 2" HMAC Overlay 9,600 SY $ 7.50 $72,000.00 9 Pedestrian Path (2"HMAC 4"AB) 800 SY $ 12.50 $10,000.00 10 Stop Signs Street Name and 12.0 EA $ 300.00 $3,600.00 11, - Paint Striping and Markings 2,700 LF $ 2.00 $5,400.00 12 Traffic Legends 10 EA $ 300.00 $3,000.00 13 Traffic Signs 1 EA $ 180.00 $180.00 14 Temporary Erosion Control Devices 1 LS $ 4,500.00 $4,500.00 15 Concrete Drainage Inlet 16 EA $ 1,500.00 $24,000.00 16 Type "B Drywell w/75 CY Drain Rock 5 EA $ 5,565.00 $27,825.00 17 12" C900 PVC Storm Drain 340 LF $ 35.00 $11,900.00 18 8" C900 PVC Storm Drain 750 LF $ 25.00 $18,750.00 19 Drainage Infiltration Basin 1,500 CY $ 12.00 $18,000.00 20 Class 100 Ri Rap Storm Drain Outfall Prot. 1 LS $ 6,400.00 $6,400.00 21 Relocate Mailbox Facilities 1 LS $ 5,000.00 $5,000.00 22 Adjust Utility Covers 1 LS $ 10,000.00 $10,000.00 23 Utility Relocations 1 LS $ 15,000.00 $15,000.00 24 Remove Existing Signs in ROW 1 LS $ 5,000.00 $5,000.00 25 Relocate Fire Hydrant Assembly 1 EA $ 3,000.00 $3,000.00 26 Landscape/Irrigation Repair 30,000 SF $ 3.00 $90,000.00 27 Small Landscape Retaining Wall 700 LF $ 35.00 $24,500.00 28 Safety Enhancements 1 LS $ 30,000.00 $30,000.00 Subtotal Engineering /construction management(17%) Contingency (15%) Total Estimated Project Cost Note: This estimate is based on current market prices. Costs are subject to change based on market conditions and final designs. Metolius Construction Estimate 052407.xls $540,400.00 $91,900.00 $ 94,800.00 $ 727,100.00 Exhibit C 1 of 1 EXHIBIT D PUBLIC FACILITIES IMPROVEMENT AGREEMENT LICENSE PUBLIC FACILITY IMPROVEMENT AGREEMENT: n STREET o SEWER o WATER o MASTERPLAN o OTHER The CITY OF BEND, an Oregon municipal corporation, hereinafter referred to as "CITY" and Arrowood Development, LLC, hereinafter referred to as "DEVELOPER" agree as follows: 1. This License and Public Facilities Improvement Agreement ("PFIA") is applicable to the construction of Metolius Drive in Bend. CITY and DEVELOPER agree that they have all necessary approvals from all persons or entities owning land affected by the construction of Metolius Drive in Bend (called "the Improvement(s)") to commence and complete construction of the Improvement(s). DEVELOPER represents that landowners in said area will be notified of project improvement(s) and schedule of activity. 2. CITY and DEVELOPER recognize that this PFIA adds to, but does not supersede any provision of the land use approvals for the Tetherow (formerly Cascade Highlands) Destination Resort. GENERAL CONDITIONS L DEVELOPER has received, read and understands City's public facility improvement policies. The terms used in this agreement have the meanings assigned to them by City's policies unless specifically provided otherwise in this agreement. 1.1 DEVELOPER desires to construct the Improvement(s) in Bend. DEVELOPER shall be solely responsible for payment of all costs of construction of the Improvement( s). 1.2 The DEVELOPER and City intend that this agreement shall constitute a covenant running with the land, binding on the DEVELOPER and the DEVELOPER'S heirs, successors, creditors or assigns. 1.3 DEVELOPER agrees to pay applicable sewer, water and street System Development Charges (SDC's) in accordance with the License and Water/Sewer Service Agreement between the parties.. PROVISION OF PUBLIC FACILITY IMPROVEMENTS P DX/ 113 803 / 144541 /TMU 1523747.1 2. IMPROVEMENT(S) shall be supplied only through components constructed by City approved contractor, installed to City Standards and Specifications and owned by City. All facilities shall be installed. within public right of ways and easements. City shall provide all approvals under this PFIA in writing, in advance. 2.1 City shall not be deemed to have accepted the Improvement( s) installed by DEVELOPER until City does so in writing and a Maintenance Agreement is established. 2.2 DEVELOPER shall promptly pay all charges for City services when due. Charges shall be as prescribed by the appropriate schedule and may be changed from time to time. 2.3 No other use of CITY services or CITY facilities shall be permitted without express written consent ofthe CITY. 2.4 DEVELOPER, when constructing Improvement(s), shall comply with all applicable governmental laws, rules and regulations including but not limited to CITY ordinances, resolutions an d the provisions of City public facility improvement policies as they now exist and as they may be changed from time to time. Any failure to comply with all terms and conditions of this agreement shall entitle CITY to terminate facility improvement services at CITY'S sole discretion. 2.5 DEVELOPER shall submit all construction documents for CITY approval in advance (including plans for signage and traffic flow during construction, if applicable), and DEVELOPER shall not commence construction until CITY has given full approval of all plans. EXTENSION OF PUBLIC FACILITY IMPROVEMENTS 3. DEVELOPER shall comply with the following conditions with regard to the Improvement( s): 3.1 DEVELOPER agrees to perform all work necessary for the construction of the Improvement(s) at DEVELOPER'S sole expense and in accordance with the City's Standards and Specifications, within 120 days from the commencement of physical construction of the Improvement(s) unless extended by City in writing. Regardless of the commencement date of physical construction of the Improvement(s), DEVELOPER agrees to complete all work related to construction of the Improvement(s) within two years of the date of this agreement, or shall be deemed to be in default of DEVELOPER's obligations hereunder. Other events of default shall include: Insolvency: Insolvency of Developer; an assignment by Developer for the benefit of creditors; the filing by Developer of a voluntary petition in bankruptcy; an adjudication that Developer is bankrupt or the appointment of a receiver of the properties of Developer and the receiver is not discharged within 30 days; the filing of an involuntary petition of bankruptcy and failure of Developer to secure a dismissal of the petition within 30 days after filing; attachment of or the levying of execution on the leasehold interest and failure of PDX/1 13803/144541/TMU1523747.1 Developer to secure discharge of the attachment or release of the levy of execution within ten days. Default in Development: Failure of Developer to actively pursue completion of the Improvement(s) required by this Public Facilities Improvement Agreement/License in the manner reasonably necessary to complete construction of the Improvement(s) within 24 months of the date of execution of the Public Facilities Improvement Agreement/License. 3.2 The person, firm or corporation performing the work shall have construction liability coverage. Coverage shall be in the amount of a one million dollars combined single limit for bodily injury liability and property damage. 3.3 DEVELOPER shall hold City harmless and indemnify City from any liability of any kind in connection with activities resulting from this agreement. DEVELOPER shall furnish to CITY a certificate evidencing the insurance coverage before physical construction is commenced. 3.3 DEVELOPER agrees to submit to the City a statement of all costs incurred on the project upon completion of the project. 3.4 City will charge appropriate fees for services rendered to DEVELOPER. 3.5 DEVELOPER agrees to obtain a City or County street cut permit prior to any construction in right of ways, if applicable. 3.6 When required by CITY, DEVELOPER agrees to deliver to CITY "AS BUILT" reproducible drawings of the completed work, signed by an Oregon professional engineer prior to acceptance of the work by CITY. 3.7 The parties hereby grant to each other a license to enter and remain on the property for the purpose of constructing public facility Improvement(s) pursuant to this Agreement, including, but not limited to, any water lines, meters, backflow prevention devices, sewer lines, streets, test cocks and other facilities. ADDITIONAL CONDITIONS REQUIREMENTS FOR MODIFICATION OF WATER FACILITIES DEVELOPER agrees to perform all work necessary to install, relocate or modify water service lines with meters and housings if required. Said installations to be completed in accordance with City Standards and Specifications. If any meters are required, they shall be installed by contractor, must be stamped and registered by CITY Public Works Department prior to installation. DEVELOPER agrees to perform all work necessary to install at a City approved location any necessary backflow prevention device approved by the Oregon State Health Division and the City of Bend Standards and Specifications if required. This device must pass inspection by a certified backflow prevention inspector. DEVELOPER agrees to have test PDX/ 113 8 03/ l 44 541 /TMU 1523 747.1 cocks installed on this device as shown in the specifications. DEVELOPER also agrees to comply with the annual requirement for checking the backflow protection valves at DEVELOPER'S expense. ❑ Not required ❑ Double check type ❑ Reduced Pressure Type FIRE SERVICES: When required, fire services will be included on Exhibit "B", including locations of all fire services and associated backflow devices. FOR PROVISION OF SEWER FACILITIES If the Improvement(s) require(s) the construction or relocation of any sewer facility, DEVELOPER shall obtain all necessary permits from the City of Bend Public Works Department. FOR PROVISION OF STREET FACILITIES Except as otherwise set forth herein, DEVELOPER shall construct all required public and private street Improvement(s) according to the CITY Street Policies, where applicable, and according to the plans and specifications on the engineering documents submitted to CITY for approval before construction of the Improvement(s) commences. DEVELOPER will submit for approval and comply with the provisions of all signage and traffic flow plans submitted to CITY and approved by CITY. DEVELOPER will also comply with all the terms of the land use approval. DEVELOPER'S OBLIGATION TO COMPLY WITH ALL LAWS. AND TO INDEMNIFY. DEFEND AND HOLD CITY HARMLESS As a condition of this PFIA, DEVELOPER agrees to be solely responsible for compliance with all state, federal and local laws that pertain to this PFIA and the construction of the Improvement(s). DEVELOPER shall fully indemnify, defend and hold CITY harmless from any and all claims arising or connected to this PFIA, including claims arising from construction of the Improvement(s) and claims that may arise under ORS 279C.800 through 279C.870. DEVELOPER shall comply with any applicable provisions of ORS 279A, 279B and 279C in the advertisement for bids, the request for bids, the contract specifications, the accepted bid, the completion of the contract, and elsewhere in any contract related to fulfillment of the terms of this PFIA. DEVELOPER TO FURNISH FINANCIAL SECURITY FOR COMPLETION OF WORK Prior to commencement of work on the Improvement(s), DEVELOPER shall furnish CITY with a bond or other suitable form of security, securing all of DEVELOPER's obligations under this PFIA, including DEVELOPER's obligation to complete the Improvement(s) on schedule and according to CITY's standards and specifications. The bond or other form of security shall also be sufficient to cover any claims that may arise under ORS 279.A, 279B, and 279C. P D X/ 113 8 03 / 144 541 nM U 152 3 747.1 SYSTEMS DEVELOPMENT FEE REIMBURSEMENT Because the Improvements increase capacity of Metolius Drive by 92.1% and because Metolius Drive is a collector street, the CITY and DEVELOPER agree to SDC reimbursement in accordance with the terms and provisions of the Addendum to the Water/Sewer Agreement between the parties executed contemporaneously herewith. 41, DATED this J day of Ccc•-c. 2007. DEVEL V B uva» r°• L..; ~?Z itle: STATE OF OREGON ) )ss County of Deschutes ) OFFICA& M AMY OAYMAN W NOYAW P EWN COMMISSION NO.393781 MY COMMISSION 6>anns A ME't2 2001 This instrument was acknowledged before me on by, Soho L.i e z as Member of YZ.Sl oot-A k.1.7C(Tw art{ 4~ al~ NOTARY P LIC FOR OREGON CITY Engineering Division STATE OF OREGON ) )ss County of Deschutes ) This instrument was acknowledged before me on by NOTARY PUBLIC FOR OREGON as Moiber PDx/113803/ 144541 /TMU 1523747.1 BALL JANIK LLP A T T O R N E Y S 15 SW COLORADO, SUnTE 3 BEND, OREGON 97702 LAURA CRASKA COOPER www.balljanik.com 'cooper®bjllp.com ALSO ADMITTED IN CALIFORNIA TELEPHONE 541-617-1309 FACSIMILE 541-617-8824 December 10, 2007 BY HAND DELIVERY Deschutes County Board of Commissioners 1300 NW Wall St., Suite 200 Bend, OR 97701 Re: Request to Extend Improvement Agreement for Overnight Lodging Dear Commissioners: Pronghorn Investors, LLC, together with its subsidiaries, is the owner and developer of The Resort at Pronghorn, a destination resort ("Pronghorn"). Pronghorn respectfully requests that the Board of Commissioners agree to amend the overnight lodging Improvement Agreement' to extend the completion date for construction of the overnight lodging component of Pronghorn. Pronghorn has been a leader in attracting high-quality destination resort tourism development to the County. The combination of Pronghorn's top-notch amenities and its two world-renowned golf courses has helped establish Deschutes County as a premier golf and recreation destination. Although Pronghorn has progressed diligently and steadily toward completion of the build out, the Improvement Agreement's timeline for construction of the minimum 150 overnight lodging units has proved to be of inadequate duration to respond appropriately to market conditions and construction constraints, as further explained below. With County approval of this request, Pronghorn will have constructed or bonded for 154 units, exceeding the 150 minimum and remaining far below the maximum 2:1 ratio of individually- owned residences to overnight lodging units. The enclosed site plans and anticipated construction schedules demonstrate that Pronghorn has been and will remain committed to aggressively designing and marketing a diverse mix of high-quality overnight lodging units. 1 The "Improvement Agreement" is that certain Improvement Agreement, Deschutes County Document No. 2002- 451, dated December 6, 2002, recorded at Deschutes County Records No. 2002-68693, as amended by Amendment No. 1 to Improvement Agreement, Deschutes County Document No. 2005-235, dated June 22, 2005 and as further amended by Amendment No. 2 to Improvement Agreement, Deschutes County Document No. 2006-539, recorded at Deschutes County Records No. 2006-73104. ::ODMA\PCDOCS\PORTLAND\594259\4 PORTLAND, OREGON WASHINGTON, D.C. BEND, OREGON BALL JANIK LLP Deschutes County Commissioners December 10, 2007 Page 2 This letter further explains (1) the justification for the extension request, (2) the general status of overnight lodging at Pronghorn, and (3) the Improvement Agreement amendment and updated bonding that are proposed in this request. 1. Progress toward completion of the minimum 150 overnight units has been impeded by market conditions and construction constraints. As the Board is aware, since the Improvement Agreement was signed in 2002, the real estate market in Central Oregon has cooled dramatically. While Pronghorn's sales and marketing estimates were well-researched and planned when first implemented, the general real estate slump has negatively impacted the pro formas. It is no secret that Central Oregon and the entire country is in an unprecedented real estate recession that has not been seen in a very long time. Accordingly, demand for and absorption of all product types, especially overnight lodging, has been materially softer than originally anticipated. Although Pronghorn originally hoped to complete, and diligently pursued, a full build-out of its required 150 units of overnight lodging during the initial five-year timeline under the Improvement Agreement, market conditions and construction constraints have made compliance with that schedule impossible. The market slowdown forced Pronghorn to alter and refine its planned overnight lodging products to match the changing market. Originally, Pronghorn intended to satisfy its overnight lodging commitment primarily by constructing a 75-100 room hotel, and possibly also a number of deed-restricted condominiums.2 Unfortunately, the market slowdown that occurred since 2002 has negatively impacted the hotel market. In addition, any hotel, if completed earlier, would have been unlikely to draw guests before the resort amenities (the clubhouse, spa, and both golf courses) were completed.3 Lenders are generally unwilling to finance speculative hotel projects that do not expect to have guests for three to four years. The combination of those factors forced Pronghorn to shift its primary focus to different overnight products, including timeshares and deed-restricted products. Timeshares and deed-restricted products occupy more available real estate than a single large hotel. Thus, shifting from the central hotel strategy to a more diverse mix of lodging units required the developer to redesign the resort layout and to devote more space to overnight lodging units. Given Pronghorn's relatively limited site area (approximately 640 acres) and the fact that the premier golf courses occupy approximately two-thirds of the site area (more than 400 acres), devoting more space to overnight lodging made construction staging even more complicated. In the land area available at Pronghorn, it is not possible to have several different projects under construction at one time. By way of illustration, the area used for staging the construction of one building is the location of a future building. Thus, the current plan for a 2 The Final Master Plan application stated: "At present, it is anticipated that the resort will include approximately 420 single family residential lots, 160 to 180 separate rentable condominium units and a 75 to 100 room luxury resort hotel....." 3 These amenities are now all completed. ::ODM A\PCDOCS\PORTLAND\594259\4 BALL JANIK LLP Deschutes County Commissioners December 10, 2007 Page 3 diverse mix of overnight lodging products has moved, and will continue to move, more slowly than the central hotel strategy. Finally, the extreme growth of single-family housing in Central Oregon in recent years has created a shortage of contractors. Until recently, it has been very difficult for Pronghorn to find enough subcontractors to build even those timeshare units for which Pronghorn could generate market demand. Despite the real estate slump, Pronghorn has continued its efforts to plan and market new overnight lodging arrangements, as the enclosed site plans demonstrate. Recognizing that market conditions are cyclical, Pronghorn is confident that conditions will again favor consumer interest in overnight lodging. But, if construction of overnight lodging is forced to proceed too far ahead of consumers' willingness and ability to purchase overnight units, the financial stability of the project and its ability to attract tourism to the community can be compromised. Pronghorn is one of the County's largest taxpayers, and has demonstrated a commitment to ongoing involvement in the community. In particular, Pronghorn's developer Hix Rubenstein Companies is currently working with the City of Redmond to develop a 300-acre business park adjacent to the Redmond Airport that will foster the growth of the local green energy industry. Now, Pronghorn seeks the County's help in gaining more time to allow continued progress in the construction and delivery of high-quality overnight lodgings. Pronghorn is also a significant contributor to needy causes in Central Oregon in general and Deschutes County in particular. The Pronghorn Foundation and the Ghost Tree Invitational have contributed more than Four Hundred Fifty Thousand Dollars ($450,000) to local charitable causes over the last five years. In short, Pronghorn is not only a quality developer, but it is also a good citizen. 2. Although Pronghorn has not yet constructed all of the 150 overnight units, it has complied with the 2:1 ratio and, if approved here, will have constructed or bonded for 154 units. The request before the Board is to amend the Improvement Agreement to give Pronghorn more time to construct the 102 remaining units of the 150 required by DCC 18.113.060 and the Improvement Agreement. We believe that this request is justified by the past conditions discussed in Part 1 of this letter and the proposed financial assurances, site plans, and anticipated construction schedules detailed in Part 3 of this letter. Pronghorn is committed to aggressive, market-sensitive progress toward completion of the 150 units within the revised time frame. We also recognize that the broader picture of overnight lodging units at Pronghorn, including present and future compliance with the 2:1 ratio, provides important context for the Board's decision to amend the Improvement Agreement. Therefore, this section of the letter outlines that broader picture. Pronghorn's overnight lodgings include three different classes of units anticipated to generate approximately 178 total units. A fourth product, a 49-unit :ODMA\PCDOCS\PORTLAND\594259\4 BALL JANIK LLP Deschutes County Commissioners December 10, 2007 Page 4 condominium, could provide additional overnight units in the event that Pronghorn elects to deed restrict them. (Pronghorn's overnight lodgings are summarized in Exhibit 1.) The Residence Club timeshare product has been the emphasis of Pronghorn's overnight lodging program thus far. To date, 48 timeshare units have been constructed, and a site plan for 24 more units was filed on December 7, 2007 (the "Additional Residence Club Units"). Accordingly, a total of 72 Residence Club units are anticipated. Nearing the completion of planning are the Spa Buildings (8-plex) project (40 units to be deed-restricted), two of which are to start construction in the near future (for a total of 16 units); and the Nicklaus Lodge (66-unit hotel). The total unit count for the first two Spa Buildings and the hotel is 82 units. These, together with the Additional Residence Club Units, are the units that Pronghorn proposes to financially assure, as described in Part 3. With the existing 48 Residence Club units, Pronghorn would have a total of 154 overnight lodging units that are either constructed or assured.4 In addition to those units, Pronghorn has prepared site plans for a 49-unit condominium to sit adjacent to the Clubhouse. This will be a three-story building with the lowest floor being a parking garage that is constructed in a "daylight basement" style. Pronghorn currently intends at least some of these condominiums to be deed-restricted. If all of them were to be deed restricted, Pronghorn could have as many as 227 qualified overnight lodging units in the future. It is worth noting, as well, that at least one of the individually owned Pronghorn Villas has been purchased by a vacation club called Quintess. This club's homes throughout the United States are available to its members for weekly rentals. An additional completed unit was recently purchased by Private Escapes, a similar vacation club company. Quintess has another unit nearing completion. Thus, although Pronghorn has not sought to have this unit officially counted toward its overnight lodging requirement, it certainly meets the intent of the law to provide transient lodging. For the Board's convenience, we attach as Exhibit 2 a printout from the Quintess webpage explaining its program and highlighting the Pronghorn unit. For non-overnight units at Pronghorn, the picture can be summarized as follows: Pronghorn has approval for 289 single-family lots (the "Estates at Pronghorn") and 16 "Villas" (including the three owned or under contract to vacation clubs), for a total of 305 approved building sites for non-overnights. However, only 18 Estate dwellings and 8 Villas have been completed, for a total of 26 "individually-owned residential units."5 With 26 constructed non- overnight units and 48 constructed overnight units, Pronghorn's ratio is 0.54:1, well below the 4 This number represents: 48 constructed ResClub units, 24 financially-assured ResClub units, 66 bonded hotel units and 16 bonded Spa Building units. 5 It should also be noted that only 7 of these homes are owner-occupied. The others were either built for speculation or are second homes with transient usage. Pronghorn has not children enrolled in any schools within Deschutes County. ::ODMA\PCDOCS\PORTLAND\594259\4 BALL JANIK LLP Deschutes County Commissioners December 10, 2007 Page 5 2:1 ratio requirement stated in Section 18.113.060.D.2 of the Deschutes County Code. Importantly, that section refers to "individually-owned residential units" and not merely to approved lots or site plans.6 "Residential" is defined in Section 18.04.030 to mean "any dwelling unit or group of units built or used for human occupancy" (emphasis added). Using constructed units to calculate the ratio is consistent with Condition No. 31 of the Conceptual Master Plan (CU-00-118),' which requires Pronghorn to establish a secondary access to the resort upon 50 percent build out of units, rather than 50 percent approval of lots. This condition recognizes what Section 18.113.060 also seems to recognize: that it is the occupancy of units, rather than the right to build a unit, that creates impacts.8 The ratio of constructed non-overnights to constructed overnights (currently 0.54:1) could rise as high as 1.66:1 by the end of 2008, but will remain well below the maximum 2:1 ratio. In addition to the 26 completed units, there are another 32 Estate homes under construction at Pronghorn, with 14 more currently under architectural review. Four Villas are under construction. Four more could start construction in the next couple of months. Because architectural review under the Declaration of Covenants, Conditions and Restrictions for the Estates takes at least 6 weeks (averaging 8-10 weeks) for each residence and construction typically takes approximately 16 months, it is extremely unlikely that any additional "individually-owned residential units" beyond the 54 currently underway could be completed in 2008. For the next 12 months, then, the highest number of non-overnights that could be constructed and occupied is 80 (26 completed plus the 54 underway, either in design review or construction). Thus, even if Pronghorn did not complete construction of any additional overnight units during 2008, the maximum that the ratio could reach is 1.66:1, which is still well below the maximum of 2:1. Of course, with continued construction of overnight lodging during 2008, the ratio is likely to remain even lower than 1.66:1. Attached for your convenience as Exhibit 3 is a map showing which homes at Pronghorn are constructed, which are under construction and which are currently in design review. As a conclusion to this general discussion of the overnight lodging picture at Pronghorn, it is worth noting that more than 50 percent of the 64 residences that are either constructed, under construction, or in design review are intended to be second or third homes, not full-time residences. As noted above, only 7 of the completed homes are owner-occupied. 6 "Individually owned residential units shall not exceed two such units for each unit of visitor oriented overnight lodging. Individually owned units shall be considered visitor oriented lodging if they are available for overnight rental use by the general public for at least 45 weeks per calendar year through one or more central reservation and check in service(s)." DCC 18.113.060(D)(2). 7 This condition is No. 29 in the Final Master Plan (M-02-1). 8 It is worth noting that, even if approved lots/overnights were the appropriate measure, the ratio of 305 approved non-overnights to the 154 units proposed to be bonded (and for which site plans are underway, see Part 3) remains lower than the maximum 2:1 ratio. :ODMATCDOCSTORTLAND\594259\4 BALL JANIK LLP Deschutes County Commissioners December 10, 2007 Page 6 Thus, the arguments that destination resorts are really "sagebrush subdivisions" is inapplicable to Pronghorn. It is Pronghorn's experience that these second and third homes are generally used on a limited basis by their owners and as vacation or holiday accommodations by extended family members or friends. Thus, many of these "individually-owned residential units" actually meet the intent of the destination resort statute and ordinance to attract transient use. In sum, Pronghorn is steadily progressing toward build out of the resort, remaining well within the maximum 2:1 ratio as it does so. 3. Proposed amendment to the Improvement Agreement and updates to financial assurances will serve the public's interest in fostering high-quality, sustainable tourism development. Pronghorn and the County first executed an Improvement Agreement for the resort's clubhouse, dining/meeting facilities, and minimum 150 units of overnight lodging in December 2002. Automatic extensions received under Paragraph 9 of the Improvement Agreement have resulted in a final construction completeness date of December 19, 2007. At present, Pronghorn has constructed nearly all of the "Meeting Improvements" under the Improvement Agreement (the clubhouse, dining/meeting facilities, and the first 50 units of overnight lodging), but requests that the Improvement Agreement be amended to allow an additional five years for construction of the remaining overnight lodging units (the "Lodging Improvements"). An amendment to extend the completion dates is allowed by Paragraph 5 of the Improvement Agreement, which states: "Either or both Completion Dates may, if the County deems it to be in the public interest to do so, be extended in writing. Any extension of one or both of the Completion Dates shall constitute new Completion Dates for the purposes of this Agreement." An extension is in the public interest for several reasons. An extension will encourage Pronghorn to continue its aggressive efforts to plan and market an overnight lodging program that is consistent with market conditions, but that recognizes the general slowdown that has occurred in the real estate market since the first improvement agreement was signed. It will also give Pronghorn time to construct a variety of quality overnight products that will continue to attract affluent transient residents. If Pronghorn is forced to construct the remaining 102 units quickly, it will have no choice but to construct product that is inexpensive and of lower quality. This is not in the County or Pronghorn's best interests. The public's interest is served best by fostering the development of high-quality, sustainable development that will be an asset to the Central Oregon community over the long term. By ensuring that the resort retains the flexibility to develop products in response to market demands, the intent of the overnight lodging requirements will be met: overnight lodging actually will attract consumers, who in turn will bring tourism dollars Central Oregon. A resort that stretches to develop products that do not :ODMA\PCDOCS\PORTLAND\594259\4 BALL JANIK LLP Deschutes County Commissioners December 10, 2007 Page 7 satisfy consumer demand is not likely to remain a healthy contributor to the Central Oregon economy. Moreover, the public interest in the construction of high-quality, sustainable overnight lodging units by experienced developers will remain protected by Pronghorn's execution of updated financial assurances for the 102 remaining overnight lodging units (150 units minus the 48 already constructed). In fact, Pronghorn is proposing to exceed the minimum. By providing financial assurances for 106 units and having already completed 48 units, Pronghorn is assuring construction of a total of 154 units. The proposed financial assurances and other details for the 154 total units of the Residence Club, the Spa Buildings, and the hotel are discussed below. A. Residence Club The Residence Club contains 48 constructed timeshare units, with a site plan filed on December 7, 2007 for development of 24 additional units. Exhibit 4 (new Residence Club site plan application). The Residence Club is comprised of high-quality units that provide the sort of five-star experience not available elsewhere in Central Oregon. They generate substantial tax revenue and attract affluent tourists. The amount of money spent on these units could have easily funded the construction of 150 units or more of inferior lodging. But the developers of Pronghorn are committed to maintaining the quality that characterizes the entire Pronghorn project. The current financial assurances for the overnight accommodations include a cash deposit with the County that currently totals Eight Million Five Hundred Ninety-Four Thousand Two Hundred Ninety-Four and 48/100 Dollars ($8,594,294.48). The construction estimate for completion of the remaining 24 units is Six Million Six Hundred Thousand Dollars ($6,600,000). (See attached Exhibit 5.) The County's bonding requirement for overnight lodging is 110 percent of the estimated construction costs. Accordingly, the required security for the remaining Residence Club units is Seven Million Two Hundred Sixty Thousand Dollars ($7,260,000). This amount is One Million Three Hundred Thirty-Four Thousand Two Hundred Ninety-Four and 48/100 Dollars ($1,334,294.48) more than is in the cash account. Thus, it is more than sufficient to assure the completion of the remaining 24 Residence Club units. Pronghorn also notes that the fund will continue to generate additional interest revenue as security for the remaining Residence Club units. B. Spa Buildings (8-plexes) Pronghorn is nearing completion of planning for three new overnight lodging products to supplement the Residence Club. The first is the 8-plex "Spa Buildings" project. The Spa Buildings will be located across the street from the Residence Club and will be comprised of five 8-unit buildings that will be platted as condominiums. Pronghorn intends to sell these condo units with rental deed restrictions that comply with County standards. Parking will be :ODMA\PCDOCS\PORTLAND\594259\4 BALL .JANIK LLP Deschutes County Commissioners December 10, 2007 Page 8 underground and the Spa Buildings will be two stories above parking. Pronghorn's designers and land use consultants have nearly completed work on the site plan and intend to submit a site plan application for the first two buildings (a total of 16 units) to the County for this product by December 21, 2007. All of the infrastructure is already installed to serve the Spa Buildings, and Pronghorn estimates construction on the first two buildings (16 units) will commence by April 2008 and end by March 2009. Pronghorn proposes to provide bonding for these units through its contractor, Kirby Nagelhout Construction Co. ("Contractor"). The Contractor's estimated construction cost for each building is Four Million Five Hundred Ninety-Three Thousand Five Hundred Seventy- Nine and 25/100 Dollars ($4,593,579.25) or Nine Million One Hundred Eighty-Seven Thousand One Hundred Fifty-Eight and 50/100 ($9,187,158.50). Accordingly, the draft bond attached hereto as Exhibit 6 is for 110 percent of that amount, or Ten Million One Hundred Five Thousand Eight Hundred Seventy-Four and 35/100 Dollars ($10,105,874.35). Exhibit 7 contains the plans and drawings for the Spa Buildings (labeled as "Hideaway Residences" and/or "Spa Residences," and Exhibit 8 is the construction cost estimate. C. Nicklaus Lodge (Hotel) Pronghorn has entered into a partnership with a top-tier hotel company, First Guardian Group, to develop the site next to the existing Nicklaus Golf Academy with a 66-unit hotel. The hotel will be marketed in conjunction with the Academy but visits will not be limited to those who take a course. Because the Academy is a draw in and of itself, it makes sense to have a hotel that can serve those attending the Academy. All necessary infrastructure is in place. Pronghorn has prepared design drawings for the hotel and intends to submit for design review in January 2008 for this three-story hotel. Pronghorn anticipates that construction will start by October 2008 and be completed by Spring 2010. Pronghorn proposes to provide bonding for the hotel through its Contractor, as discussed above. The Contractor's estimated construction cost for the Condominium is Four Million Three Hundred Twenty-Three Thousand Eight Hundred Twenty-Nine and 92/100 Dollars ($4,323,829.92). Accordingly, the draft bond attached hereto as Exhibit 9 is for 110 percent of that amount, or Four Million Seven Hundred Fifty-Six Thousand Two Hundred Twelve and 91/100 Dollars ($4,756,212.91). Exhibit 10 contains plans and drawings for the hotel (labeled as "Nicklaus Lodge"). ::ODMA\PCDOCS\PORTLAND\594259\4 BALL JANIK LLP Deschutes County Commissioners December 10, 2007 Page 9 4. Conclusion Pronghorn requests the County's support for an amendment to the Improvement Agreement that will give it an additional five years to complete the minimum 150 overnight lodging units. With Pronghorn's demonstrated progress toward designing and marketing those units, and the substantial financial assurances that it proposes, we respectfully submit that the proposed amendment is in the public interest. Accordingly, enclosed for the Board's consideration is a chart that details the construction schedule for the various overnight units. We are also submitting a draft amendment to the Improvement Agreement to County Counsel for review. On behalf of Pronghorn, we thank you for your consideration of this request and we look forward to further discussions in a hearing at the Board's earliest convenience. Si cerely, Laura Craska Cooper Enclosures cc: Laurie Craghead Catherine Morrow Paul Blikstad :ODMA\PCDOCS\PORTLAND\594259\4 r, EXHIBIT 1 Summary of Pronghorn Overnight Lodging Products Product Description Land Use Status Total OLUs Residence Nine buildings, each with SP-04-10; approved 5/18/04; 32 units 72 Club eight overnight lodging constructed units on a timeshare plan. SP-05-65; approved 1/13/06; 16 units constructed SP-XX-XX; filed 12/7/07; 24 units proposed 8-plex Five buildings, each with Infrastructure complete. 40 eight deed-restricted condo Site plan for first two buildings (16 total units. units) to be filed by 12/21/07. Hotel/Lodge Sixty-six unit hotel or Letter of intent signed with hotel 66 lodge. developer. TOTAL of 178 OLUs in progress. ::0DMA\PCD0CS\P0RTLAND\591384\5 0) C7' m U U f71 A U W U N j~ 01 C A t0 A' Oo A V A T A U A P A W A N I A ~ A O W ~O W Oo W V W O) W U W A W W W N W W O N co N OD N V N T N U N A N W N N N N O ~O O~ V Of U A W N O (p pD V Ol U A W N v I ( . N j c C C ~ c I a W C W C 0 O c ; n K 7c T 7 R~: N T a - O 1 T C r Ol = ~ m A T n X . O: 7 I T C : C7 j m X A T n X ' 7 C 7 ` O : W 1 T C - Cl » m m O 1 T - m X 7 T : T C r Gl 7 ' m v T a C 7 O : 7 : N ? C d m m fD 7 m v c 8 ~i 1° 7 d ' a ' ~ m v m ~i c $ m j m 7 7 m m y v $ m v 7 g j n y J: 7 m m . $ an j d J ' m m m O f0 v f0 . O A O fn 7 tp < d t0 n c D ' m 8 . 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Journals EXHIBIT a- http://quintess.com/bend,cascading_pines 12/4/2007 Bend, OR - Cascading Pines Page 2 of 4 Located on 20,000 acres of protected federal wild lands, the community at Pronghorn is the premiere private golf resort of the West. Offering residents access to five-star amenities, from the two highly-ranked golf courses and the largest spa in the Pacific Northwest, to the fine dining and specialized concierge services, Pronghorn is luxurious leisure at its finest. With the Jack Nicklaus Signature Course recently voted one of the country's top two private golf courses by Golf Digest, and close proximity to skiing, fly fishing, cultural events and more, Pronghorn is a year-round playground. Cascading Pines provides a lavish experience in the high desert: four bedrooms; breathtaking Cascade views from the entertaining areas and 360-degree views from the furnished observation deck; state-of-the-art appointments throughout; and a separate garage just for your two complimentary four-person golf carts (to use as grounds transportation; only Pronghorn's two-person golf carts are allowed on the courses). our Home Includes Indoor fireplaces and an outdoor, handcrafted stone fire pit Fully-appointed gourmet kitchen opening into the expansive dining and living rooms Views of the Cascade Mountain Range complemented by the fairways Furnished rooftop observation deck Patio with gas barbeque Game room and office Premier membership to both Jack Nicklaus and Tom Fazio Golf Courses Jack Nicklaus Golf Academy at Pronghorn Access to the Pronghorn clubhouse, spa and family recreation center Private three-car garage, which includes the space for both four-passenger golf carts About Us I Inquire about: Membership, General Requests or Press © 2007 Quintess, L.L.C. Broomfield, CO Site Map I Privacy Policy I Terms of Use http://quintess.com/bend,cascading_pines 12/4/2007 Bend, OR I Luxury Vacation Club I Quintess, LRW Member and Q Access Sign In Username: Password: J Sig-an-1 n t ' , y ; Ca E , ''s• , s M f ~ !'f http://quintess.com/bend Pagel of 4 12/4/2007 Bend, OR Luxury Vacation Club I Quintess, LRW Page 2 of 4 The Destination Bend, Oregon is the perfect place to unleash your inner passion for outdoor recreation. The largest city east of the Cascade Mountains, Bend offers kayaking and rafting on the triple waterfalls of the Deschutes river, fly fishing for trout and steelhead, world-class rock climbing, hiking, camping, skiing and riding on Mt. Bachelor, and even cave spelunking. Myriad galleries, restaurants, boutiques, specialty shops and an outdoor amphitheater only enhance your visit. With everything Bend has to offer, you'll probably have to take multiple trips to experience it all. Staying in Bend, OR Brewery Tours Tour the Deschutes Brewery Brewing Facility and learn more about their brewing process. The free tour offers complimentary samples and views of the Cascade Range. Fishing Whether it's fly fishing on the world-famous Deschutes River for rainbow trout or summer steelhead, or casting streamers for trophy rainbows in Crane Prairie, you'll enjoy a guided trip will make for an easy day of fun. Golf There are more than two dozen golf courses all within an hour's drive of Bend, making the region internationally recognized as a golf oasis. More I had the great pleasure of visiting Pronghorn and played the Fazio course. What an amazing experience! Everything about the community is first class and with its close proximity to Bend, I think you have an absolute perfect destination. We are enjoying Quintess, LRW more and more every day! - Member Chris Shepanek About Us Inquire about: Membership, General Requests or Press © 2007 Quintess, L.L.C. Broomfield, CO Site Map Privacy-Policy I Terms of Use http://quintess.com/bend 12/4/2007 I() Cn O y ~o om Z o Co cn y o - Z r" y m a y, o v rn = C ~ V m ~ ~ ~ ~ 2 0 y °O Z ~ m ~ TES wv Community Development Department 0 A { Planning Division 117 NW Lafayette Avenue, Bend, OR 97701-1925 (541) 388-6575 - Fax (541) 385-1764 LAND USE APPLICATION hmp://vmw.deschutes.org/cdd INCOMPLETE APPLICATIONS WILL NOT BE ACCEPTED 1. Complete the application form and provide appropriate original signatures. 2. Include a copy of the current deed showing the property owners. 3. Attach correct fee. 4. Include a plot plan that shows all property lines and existing and proposed structures, parking, landscaping, lighting, etc. 5. If this application includes oversized plans a single, reduced-size plan no larger than 11" x 17" with graphic scale shall also be included. 6. All applicable standards and criteria must be addressed in writing prior to acceptance of the application. Detailed descriptions, maps and other relevant information must be attached to the application. FEE: Z t TYPE OF APPLICATION (check one): Conditional Use (CU) _ Temporary Use (TU) Setback Exception (SE) _ Partition (MP) _ Site Plan (SP)Other Subdivision (TP) _ Variance (V) Applicant's Name (print): 7 U Ja 2Q-,-- I -I--C' Phone: (z:i Mailing Address: Zf70 W -o 1 City/State/Zip: (:2P-9'7-70Z Applicant's Email Address: Property Owner's Name (if different)*: Phone: Mailing Address: City/State/Zip: 1. Property Description: Township 16 Range V-4, Section Tax Lot -,scc> 2. Property Zone(s): i= 1-c7 - Qs,i /D RP-j Property Size (acres or sq. ft.): 9. (v Qc_ t/- 3. Lot of Record? (State reason): 4. Property Address: bic-K LDc,1`-~ 5. Present Use of Property: \/q is oj- r 6. Existing Structures: N > 7. Request: S,-r,- -Pl Iwo N L.nc C.-r I1 ~ 8. Property will be served by: Sewer D i~ Onsite Disposal System 9. Domestic Water Applicant's Signature: Property Owner's Signature (if Agent's Name (if applicable): Phone: ( Mailing Address: City/State/Zip: Agent's Email address: *If this application is not signed by the property owner, a letter authorizing signature by the applicant must be attached. 1 -7 EXHIBII~ vrl I L-■ N PRONGHORN LOCATION PLAN SCALE. 1"= 800' 1 GBd Bmiw. Suit. C-100 Bmd. OMM Vr=-10" SP-1 s«~Y. 300 85.47 AC COMPLIMENTS OF WESTERN TITLE & rSCR® CO. THIS MAP IS NOT-S• A SEA-MV6 1AND WE rg f Cijiis F~'.i t '.4.."~ ti s j 1ar• !'t*:£.~` rS4'4F-S 500 a > = 9.65 AC 180 AC `y~, N 65 VT QROAQOT J~ X66 2. A 600 10 700 0.78 AC 9 ~11 ? S~ 11 PT PART ~fi~rtr z 2J8 ~ WESTERN TITLE & ESCROW COMPANY BEND OFFICE • 1345 NW Wall Street, Suite 200 • Bend, Oregon 97701 • (541) 389-5751 • FAX (541) 382-9182 SUBDIVISION GUARANTEE PRONGHORN Report No: 10-0324307 300 SW COLUMBIA #201 Your No: BEND, OR 97702 Subdivider: PRONGHORN INVESTOR Re: 16-13-16-130-00500 SUBDIVISION GUARANTEE $150.00 Western Title & Escrow Company Inc. Guarantees The Oregon Real Estate Commissioner, and any County or City within which said subdivision or proposed subdivision is located. That, according to the public records which impart constructive notice of matters affecting title to the premises hereinafter referred to, we find: Dated as of November 15, 2007 at 5:00 p.m., title is vested in: PRONGHORN DEVELOPMENT COMPANY LLC, a Delaware Limited Liability Company We also find the following apparent encumbrances, which includes "Blanket Encumbrances" as defined by ORS 92.305 (1) and also easements, restrictive covenants and rights of way within a period of ten years prior to the effective date hereof. Unpaid taxes for the year 2007-2008 Original Amount: $235,433.93 Unpaid Balance: $235,433.93 plus interest Tax Lot No.: 16-13-16-130-00500 Account No.: 251126, Code 2-004 (INCLUDES OTHER PROPERTY) 2. Reservations, includin g the terms and provisions thereof, as disclosed by instrument, Dated: March 27, 1908 Recorded: April 2, 1908 Document No.: 5-7, Deed Records. Mineral Reservation, including the terms and provisions thereof, as disclosed by instrument, Recorded: April 1, 1959 Document No.: 121-559, Deed Records From: Leonora C. Knox To: Carl E. Gobs Which states in part as follows: Reserving and excepting to myself, Leonora C. Knox, and to my heirs and assigns, a fifty percent interest in all oil and minerals. Order No. 10-0324307 4. Implied easement for ingress and egress above and below the surface of the land, imposed by Page No. 2 reservation of mineral rights in instrument, including the terms and provisions thereof, Recorded: April 1, 1959 Document No.: 121-559, Deed Records From: Leonora C. Knox To: Carl E. Gohs. 5. Ordinance No. 2002-114, including the terms and provisions thereof, Recorded: October 10, 2002 Document No.: 2002-55986, Official Records. 6. Improvement Agreement, including the terms and provisions thereof, Dated: December 6, 2002 Recorded: December 6, 2002 Document No.: 2002-68693, Official Records. Assignment of Developer's Interest in Trust Account Under Improvement Agreement, including the terms and provisions thereof, Dated: April 7, 2004 Recorded: April 22, 2004 Document No.: 2004 - 22791, Official Records Amendment No. 1 to Improvement Agreement, including the terms and provisions thereof, Recorded: June 28, 2005 Document No.: 2005 - 40648, Official Records Amendment No. 2 to Improvement Agreement, including the terms and provisions thereof, Recorded: November 2, 2006 Document No.: 2006-73104, Official Records 7. Improvement Agreement, including the terms and provisions thereof, Dated: December 6, 2002 Recorded: December 6, 2002 Document No.: 2002-68694, Official Records. 8. Easement and Maintenance Agreement, including the terms and provisions thereof, Recorded: Document No.: Re-Recorded: Document No.: Re-recorded: Document No.: January 12, 2005 2005 - 01907, Official Records February 15, 2005 2005-8987, Official Records February 3, 2006 2006-08156, Official Records 9. Sewer Service Agreement and Easement, including the terms and provisions thereof, Dated: August 29, 2005 Recorded: August 31, 2005 Document No.: 2005 - 58492, Official Records Between: Pronghorn Community Association And: The Residence Club at Pronghorn Villas Condominiums Owners Association, and Oregon nonprofit corporation 10. Notes and multiple easements as delineated on the recorded plat of the Core Area at Pronghorn, recorded December 15, 2005 as Document No. 2005-86135, Deschutes County Official Records. Order No. 10-0324307 Page No. 3 11. License Agreement, including the terms and provisions thereof, Recorded: July 18, 2006 Document No.: 2006-49094, Official Records Between: The City of Bend, a municipal corporation And: Pronghorn Investors, LLC 12. Consent to Annexation, including the terms and provisions thereof, Recorded: July 18, 2006 Document No.: 2006-49095, Official Records 13. License, including the terms and provisions thereof, Recorded: July 18, 2006 Document No.: 2006-49096, Official Records Between: The City of Bend, an Oregon municipal corporation And: Pronghorn Investors, LLC 14. Consent to Annexation, including the terms and provisions thereof, Recorded: July 18, 2006 Document No.: 2006-49097, Official Records 15 Line of Credit Deed of Trust, Security Agreement, Assignment of Rents, Fixture Filing and . Financing Statement to secure an indebtedness in the amount shown below, and any other obligations secured thereby: Amount: $13,450,000.00 Dated: October 31, 2006 Recorded: November 6, 2006 Document No.: 2006-73567, Official Records Pronghorn Development Company, LLC a Delaware limited liability Grantor: a Delaware limited liability LLC and Pronghorn Investors n , , y compa company Trustee: Transnation Title Insurance Company as 2006 Administrative Agent for the benefit of the ale G t i S Beneficiary: , ener e e oc 2006 Lenders (INCLUDES OTHER PROPERTY) Assignment of Leases, Rents and Security Deposits, Dated: October 31, 2006 Recorded: Document No.: From: To: November 6, 2006 2006-73568, Official Records Pronghorn Development, LLC, a Delaware limited liability company and Pronghorn Investors, LLC, a Delaware limited liability company Societe Generale, as 2006 Administrative Agent for the benefit of the 2006 Lenders given as additional security to the Trust Deed Recorded: November 6, 2006 Document No.: 2006-73567, Official Records Appointment of Successor Trustee, Recorded: August 28, 2007 Document No.: 2007-47253, Official Records Successor Trustee: Western Title & Escrow Company Order No. 10-0324307 Page No. 4 16. Line of Credit Second Lien Deed of Trust, Security Agreement, Assignment of Rents, Fixture Filing and Financing Statement, secure an indebtedness in the amount shown below, and any other obligations secured thereby: Amount: $43,000,000.00 Dated: October 31, 2006 Recorded: November 6, 2006 Document No.: 2006-73572, Official Records Grantor: Pronghorn Development Company, LLC, a Delaware limited liability company and Pronghorn Investors, LLC a Delaware limited liability company Trustee: Transnation Title Insurance Company Beneficiary: Societe Generale, as 2005 Administrative Agent for the benefit of the 2005 Lenders (INCLUDES OTHER PROPERTY) Second Lien Assignment of Leases, Rents and Security Deposits, Dated: October 31, 2006 Recorded: November 6, 2006 Document No.: 2006-73573, Official Records From: Pronghorn Development Company LLC, a Delaware limited liability company, and Pronghorn Investors LLC, a Delaware limited liability To: company Societe Generale, as Administrative Agent for the benefit of the Lenders given as additional security to the Trust Deed Recorded: November 6, 2006 Document No.: 2006-73572, Official Records Appointment of Successor Trustee, Recorded: August 28, 2007 Document No.: 2007-47255, Official Records Successor Trustee: Western Title & Escrow Company NOTE: The guarantee does not provide affirmative assurances as to the provisions of ORS 92.012 - 92.190 which requires that any division of an existing parcel is a partition requiring governmental approval. We have also searched our General Index for judgments and State and Federal liens against the grantees named above and find: NONE Order No. 10-0324307 Page No. 5 The premises are in Deschutes County, and are described as follows: SEE ATTACHED EXHIBIT "A" attached hereto and made a part hereof. This is not a report issued preliminary to the issuance of a Title Insurance Policy. Our search is limited to the time specified in this Guarantee and the use hereof is intended as an informational report only, to be used in conjunction with the development of real property. Liability hereunder is limited to an aggregate sum of not to exceed $150.00. NOTE: For questions concerning this Subdivision Guarantee, please contact our Central Services Department at (541) 312 - 7100 or email your request to centralservices@westerntitle.com For copies of exceptions, please contact our Central Services Department at (541) 312 - 7100 or email your request to centralservices(awesterntitle.com Order No. 10-0324307 EXMBIT "A" Lot 11, CORE AREA AT PRONGHORN, Deschutes County, Oregon, Recorded December 15, 2005 as Document No. 2005-86135, Official Records; EXCEPTING THEREFROM: Page No. 6 That portion platted as THE RESIDENCE CLUB AT PRONGHORN VILLAS CONDOMINIUMS SUPPLEMENTAL PLAT NO. 1: ANNEXATION OF STAGE 2, Deschutes County, Oregon; ALSO EXCEPTING THEREFROM: A portion of Lot 11, Core Area at Pronghorn, by W&H Pacific recorded in the Deschutes County Surveyor's Records as CS 16706, being more particularly described as follows: Commencing at the initial point, being a found 5/8" iron rod with yellow plastic cap marked "W&H Pacific", said point also being the Northeast corner of the Residence Club at Pronghorn Villas Condominiums, Supplemental Plat No. 1: Annexation of Stage 2, by W&H Pacific recorded in the Deschutes County Surveyor's Records as CS 17030; thence along the Northeasterly boundary of said Plat of the Residence Club at Pronghorn Villas Condominiums, Supplemental Plat No. 1: Annexation of Stage 2; North 29°27' 19" West, 138.32 feet to a found 5/8" iron rod with yellow plastic cap marked "W&H Pacific" marking the Northwest corner of said plat of the Residence Club at Pronghorn Villas Condominiums, Supplemental Plat No. 1: Annexation of Stage 2; said point also being on the Easterly right of way (being 20.00 feet from when measured at right angles to the centerline) of Nicklaus Drive, thence along said right-of-way of Nicklaus Drive along the arc of a non-tangent 236.00 foot radius curve to the right, through a central angle of 23°35'47", an arc length of 97.19 feet, (the chord of which bears North 72°20'34" East, 96.51 feet), to a point of tangency; thence North 84°08'28" East, 44.35 feet to a point of curvature; thence along the arc of a 387.50 radius curve to the right, through a central angle of 11°57'30", an are length of 80.88 feet, (the chord of which bears South 89°52'47" East, 80.73 feet), to a point of tangency; thence South 83°54'02" East, 138.40 feet to a point of curvature; thence along the arc of an 87.50 radius curve to the right, through a central angle of 21°39'43", an arc length of 33.08 feet, (the chord of which bears South 73°04' 11" East, 32.88 feet), to a point of reverse curvature; thence along the arc of a 1012.50 radius curve to the left, through a central angle of 02°14'35", an arc length of 39.64 feet, (the chord of which bears South 63°21'37" East, 39.64 feet), to a point of non-tangency; leaving said right-of-way South 28°24' 18" West, 198.83 feet to a point on the Southerly boundary of said Lot 11; thence along said Southerly boundary North 30°02'38" West, 48.22 feet; thence North 67°17'23 West, 97.95 feet, thence South 83°24' 13" West, 145.18 feet to the true point of beginning and the terminus of this description. SITE PLAN REVIEW FOR THE RESORT AT PRONGHORN OVERNIGHT ACCOMODATIONS RESIDENCE CLUB AT PRONGHORN CONDOMINIUMS, PHASE 3 BURDEN OF PROOF STATEMENT SUBMITTED TO DESCHUTES COUNTY PREPARED FOR: Pronghorn Investors, LLC 300 SW Columbia, Suite 201 Bend OR 97701 PREPARED BY: W&H Pacific, Inc. 920 SW Emkay Dr. Suite C-100 Bend, OR 97702 December 7, 2007 TABLE OF CONTENTS AND LIST OF SHEETS AND EXMBITS I. Applicant Information and Property Description 1 II. Description of Request 3 III. Criteria and Conclusionary Findings for Site Plan Review 3 IV. Conclusion 12 List of Sheets and Exhibits Site Plan Sheets: SP-0 Arch Plan & Elevations: A-1 Burden of Proof Statement supporting an application for a Site Plan Review for the third phase of the Residence Club at Pronghorn Condominiums at The Resort at Pronghorn. 1. APPLICANT INFORMATION AND PROPERTY DESCRIPTION Applicant: Pronghorn Investors, LLC, 300 SW Columbia, Suite 201, Bend OR 97702; (541) 382- 0765 Property Owner: Pronghorn Investors, LLC Agent/Engineer: W&H Pacific, Inc., 920 SW Emkay Dr. Suite C-100, Bend, OR 97702, (541) 388-4255 (contact: Ron Hand) Legal Description: Portions of Core Area at Pronghorn, Lot 11 (Section 16, T 16 S, R 13 E) Project Area Size: f 2.6 acres in village core area Existing Zoning and Comprehensive Plan Designations: EFU/MUA-10 with a Destination Resort (DR) overlay. Location: The subject property is located at the Resort at Pronghorn approximately mid way between Bend and Redmond, approximately 3 miles east of Highway 97. Site Description: The project area is rectangular in shape bounded by The Nicklaus Golf Course on the south and west sides and future development area on the north and east sides. The core area is located to the west. The project area includes constructed roads and utilities. The site topography is relatively flat or undulating. Vegetation consists of scattered Juniper trees and various native grasses and shrubs. Surrounding Uses: The subject site is bounded on the north and west by Nicklaus Drive. The property to the south and west of the Residence Club at Pronghorn Condominiums, Phase 3 is developed as part of the Nicklaus golf course. The proposed Residence Club Condominiums, Phase 3 will be located within the core area of the resort. The Resort at Pronghorn is entirely surrounded by lands owned by the Federal Government and managed by the Bureau of Land Management (BLM). Lands immediately adjacent to the subject property are fully controlled by the developer. Related Land Use Approvals: The proposed site plan is located within the Resort at Pronghorn and is subject to the Conceptual and Final Master Plan approvals dated May, 2002 (County Files CU-00- 118 and M-02-1). Camp Pronghorn, now called `The Trailhead' (County File SP-04-31/MA-04-8) was approved in October 2004. The Estates at Pronghorn Phase 1, 2 and 3 Final Plats have been completed and the Golf Courses Site Plan (County File SP-02-35) was previously approved. The Site Plan for Miscellaneous Buildings was originally approved on July 18, 2003 (County File SP-03-25). A site plan for visitor-oriented lodging and eating and meeting facilities was approved by Deschutes P:\Hix Rubenstein Companies\030121\ Managemenffransfers\Old WHP Folders\Office\Word\Prong_condo3_bop.doc W&HPacific, Inc. 1 County on October 29, 2002 under file SP-02-49. A land use application was approved to establish the first four condominiums per County File SP-04-10. The final plat for the Residence Club at Pronghorn Condominiums was recorded in August, 2005. Residence Club at Pronghorn Condominiums, Supplemental Plat No. 1 was recorded in August 2006. A site plan application was submitted for the Clubhouse in November of 2004 (County file SP-04-47). A land use application to establish the 5 h and 6ffi Residence Club Condominiums was approved as SP-05-65. P:\Hix Rubenstein Companies\030121\Managemenffransfers\01d WHP Folders\Office\Word\Prong_condo3_bop.doc W&HPacific, Inc. 2 II. DESCRIPTION OF REQUEST The applicant is requesting site plan approval for 24 overnight residential units in three timeshare condominium buildings within the Core Area at Pronghorn. The 24 proposed residential condominium units will provide overnight accommodations, as stipulated in the destination resort ordinance. The innovative building design will accommodate guests with varied family makeup or lodging needs. The proposed inventory is intended to be flexible to accommodate market demand for overnight lodging at the Resort at Pronghorn. The Residence Club at Pronghorn Condominiums, Phase 3 will be located southeast of existing Residence Club at Pronghorn Condominiums Phase 2 and east of Phase 1. The Residence Club at Pronghorn Condominiums were designed in air space condominium format and provide between approximately 700 and 2,000 square feet of living space per dwelling unit. The luxury condominium units are designed to incorporate the High Desert architectural theme of the overall resort. This will be accomplished through the use of stone, stucco and timber to accentuate the interior and exterior components of the units. III. CRITERIA AND CONCLUSIONARY FINDINGS FOR SITE PLAN REVIEW High Desert Development Company, LLC Conceptual and Final Master Plan Approvals for The Resort at Pronghorn, As Outlined in CU-00-118 and File M-02-1 Title 18 of the Deschutes County Code, Zoning Ordinance: Chapter 18.16, Exclusive Farm Use Zone Chapter 18.113, Destination Resort - DR Zone Section 18.113.030, Uses in Destination Resorts Section 18.113.040, Application Submission Chapter 18.116, Supplementary Provisions Section 18.116.030, Off-street Parking and Loading Section 18.116.031, Bicycle Parking Chapter 18.124, Site Plan Review Section 18.124.060, Approval Criteria Section 18.124.070, Required Minimum Standards Section 18.124.080, Other conditions All applicable Master Plan and Ordinance approval criteria or requirements are set forth below in bold text, followed by an explanation of how this application meets the criteria. A. The Resort at Pronghorn Destination Resort Master Plan, County File #M-02-1: The relevant conditions of the FMP approval are: P:\Hix Rubenstein Companies\030121\Management\Transfers\Old WHP Fo1ders\0ffice\Word\Prong_condo3_bop.doc W&HPacific, Inc. 3 D. At the time of site plan and/or preliminary plat review, the applicant shall demonstrate that all commercial, cultural, entertainment, or accessory uses are contained within the resort and not oriented to public highways. Finding: The Resort at Pronghorn is located approximately three miles from the nearest public highway. The proposed Residence Club at Pronghorn Condominiums units are intended for use by residents and guests, and will not attract other outside users. H. The applicant shall limit commercial uses within the resort to those permitted in the DR Combining Zone and those listed in CMP Exhibit 15. The applicant shall document compliance with this condition at the time of preliminary plat and/or site plan review for future commercial development. Finding: This site plan application includes overnight residential accommodations and not commercial or recreation uses. These units are designated as overnight accommodations to comply with the requirements for such units in the resort. Overnight accommodations are required under the destination resort ordinance and therefore allowed outright. 1. The applicant shall document compliance with the Erosion Control Plan during preliminary plat and/or Site Plan review. Finding: The site plan demonstrates that surface water runoff will be accommodated by infiltration into natural or landscaped areas surrounding the proposed units. Surface infiltration is consistent with the erosion control plan. J. The applicant shall provide financial assurance or bonding acceptable to Deschutes County Legal Council for the cost of the required `Phase 1" resort components, including required visitor oriented lodging and eating establishments and construction of the golf course, to the extend such improvements are not in place before the commencement of the sale of residential dwellings and lots. Finding: As noted, the applicant obtained Deschutes County site plan approval (SP-02-49) in October of 2002 for visitor-oriented overnight accommodations, and eating and meeting facilities for The Resort at Pronghorn. A first phase of Residence Club at Pronghorn Condominiums as was approved as SP-04-10 in May 2004. A second phase of the same product was aproved as SP-05-65 in January 2006. The applicant also executed an improvement agreement with Deschutes County, and provided a bond for all required overnight accommodations and other facilities. That improvement agreement and bond are still in effect. Essentially, this site plan application clarifies the site plan for the third phase of 24 overnight accommodations. Criteria J is met because the stipulated financial assurance is already in place. P:\Hix Rubenstein Companies\030121\Management\Transfers\Old WHP Folders\Office\Word\Prong condo3 bop.doc W&HPacific, Inc. 4 K. The applicant shall demonstrate compliance with all minimum lot sizes, lot frontages, yard sizes, off-street parking requirements and building height limitations established in Section 18.113.060 during preliminary plat, site plan and/or building permit review. Finding: Specific requirements of Section 18.113.060 are addressed in the next section of this burden of proof. B. Title 18 of the Deschutes County Code, Zoning Ordinance: 1. Chapter 18.16, Exclusive Farm Use & Chapter 18.32, Multiple Use Agricultural Zone Finding: The subject site is zoned Exclusive Farm Use-Alfalfa subzone (EFU-AL), with a destination resort (DR) combining zone. Deschutes County zoning code section 18.113.020 (B), the destination resort ordinance, states the provision of the destination resort zone "...shall supersede all other provisions of the underlying zone." Therefore, the provisions of Chapter 18.16 are not applicable to this application. 2. Chapter 18.113, Destination Resort - DR Zone a. Section 18.113.030, Uses in Destination Resorts: The following uses are allowed, provided they are part of and are intended to serve persons at the destination resort pursuant to this section and are approved in a fmal master plan: A.) Visitor-oriented accommodations designed to provide for the needs of visitors to the resort: 1. Overnight lodging, including lodges, hotels, motels, bed and breakfast facilities, time-share units and similar transient lodging facilities; C.) Residential accommodations; 3. Condominiums Finding: The applicant is proposing overnight lodging units in the form of time share airspace condominiums for this site plan, which are allowed outright, and required, under this ordinance. The proposal is to obtain approval for 3 additional structures, 24 dwelling units. These units will serve members of the club and possibly, overnight guests. Again, these units are designated as visitor oriented overnight accommodations. The location of these units within the resort core will provide direct access to the numerous activity centers within the core such as The Trailhead, the Clubhouse, golf courses and accessory uses P:\Hix Rubenstein Companies\030121\Managemenffransfers\01d WHP Folders\Office\Word\Prong_condo3_bop.doc W&H Pacific, Inc. 5 (putting greens, driving range, etc.). The units are in close proximity to the activity center of the resort. b. Section 18.113.040, Application Submission: C.) Site Plan Review. Each element or development phase of the destination resort must receive additional approval through the required site plan review or subdivision process. In addition to findings satisfying the site plan or subdivision criteria, findings shall be made that the specific development proposal complies with the standards and criteria of this chapter and the FMP. Finding: The authorization of a permit for a destination resort consists of three steps: 1) Conceptual Master Plan. 2) Final Master Plan. 3) Site Plan Review. The subject site is located within a Destination Resort for which a Conceptual Master Plan and Final Master Plan have been approved. The applicant is hereby applying for Site Plan Review for 24 condominium units. This Burden of Proof contains findings which demonstrate the Site Plan application meets the requirements of the Pronghorn Master Plan (M 02-1) and Chapter 18 Zoning, which include the Site Plan criteria. These criteria are satisfied. c. Section 18.113.060, Standards for Destination Resorts A. The destination resort shall, in the first phase, provide for and include as part of the CMP the following minimum requirements: 1. At least 150 separate rentable units for visitor oriented lodging. 2. Visitor-oriented eating establishments for at least 100 persons and meeting rooms which provide eating for at least 100 persons. 3. The aggregate cost of developing the overnight lodging facilities and the eating establishments and meeting rooms required in DCC 18.113.060(A)(1) and (2) shall be at least $2,000,000 (in 1984 dollars. 4. At least $2,000,000 (in 1984 dollars) shall be spent on developed recreational facilities. 5. The facilities and accommodations required by DCC 18.113.060 must be physically provided or financially assured pursuant to DCC P:\Hix Rubenstein Companies\030121\ ManagementUransfers\Old WHP Folders\Office\Word\Prong condo3 bop.doc W&HPacific, Inc. 6 18.113.110 prior to closure of sales, rentals, or lease of any residential dwellings or lots. Finding: The site plan application seeks Deschutes County approval for the third phase, 24 units, of required overnight accommodations. As noted, financial assurances are already in place for all of the first phase minimum requirements, including visitor oriented lodging. This application, once implemented, will reduce the bonded obligations of the applicant by providing the actual units. D. A destination resort shall, cumulatively and for each phase, meet the following minimum requirements: 1. The resort shall have a minimum of 50 percent of the total acreage of the development dedicated to permanent open space, excluding yards, streets and parking areas. Portions of individual residential lots and landscape area requirements for developed recreational facilities, visitor-oriented accommodations or multi-family or commercial uses established by DCC 18.124.070 shall not be considered open space; 2. Individually-owned residential units shall not exceed two such units for each unit of visitor-oriented overnight lodging. Individually-owned units shall be considered visitor-oriented lodging if they are available for overnight rental use by the general public for at least 45 weeks per calendar year through one or more central reservation and check-in service(s). Findin : The resort will have more than 50 percent of the total acreage of the development dedicated to permanent open space. The existence of the two golf courses and the surrounding open space assures that this standard will be met. Further, the 24 dwelling units will add to the overnight rental lodging and thus improve the ratio of two individually owned units for each visitor oriented lodging unit. G.) Dimensional Standards 2. Exterior setbacks a. Except as otherwise specified herein, all development (including structures, site-obscuring fences of over three feet in PAIlix Rubenstein Companies\030121\ ManagementUransfers\Old WHP Folders\Office\Word\Prong_condo3_bop.doc W&HPacific, Inc. 7 height and changes to the natural topography of the land) shall be setback from exterior property lines as follows: ii. Two hundred fifty feet for multi-family development and visitor-oriented accommodations (except for single-family residences) including all associated parking areas; Finding: All development proposed in this Site Plan is beyond the 250-foot setback from the exterior property line of the resort. See attached exhibit Sheet SP-1. 3. Chapter 18.116, Supplementary Provisions a.18.116.020. Clear vision areas. A. In all zones, a clear vision area shall be maintained on the corners of all property at the intersection of two streets or a street and a railroad. A clear vision area shall contain no planting, fence, wall, structure, or temporary or permanent obstruction exceeding three and one-half feet in height, measured from the top of the curb or, where no curb exists, from the established street centerline grade, except that trees exceeding this height may be located in this area provided all branches and foliage are removed to a height of eight feet above the grade. b. Section 18.116.030, Off-street Parking and Loading D.) Number of Spaces Required: Off-street parking spaces shall be provided and maintained as set forth in this section for all uses in all zoning districts: 1.) Use Requirements One, two and three family dwellings. 2 spaces per dwelling unit. Finding: Each building will house eight dwelling units in a fractional condominium format. For each building, there are four spaces inside attached garages, four spaces in a parking court outside and up to four spaces in front of each garage totaling 12 to 16 spaces per building. Please refer to the submitted floor plans. This criterion has been met through the design of the proposed units. P:\Hix Rubenstein Companies\03012 RManagementUransfers\Old WHP Folders\Office\Word\Prong condo3 bop.doc W&HPacific, Inc. 8 E. General Provisions. Off-Street Parking. 1. More Than One Use on One or More Parcels. In the event several uses occupy a single structure or parcel of land, the total requirement for off-street parking shall be the sum of requirements of the several uses computed separately. 2. Joint Use of Facilities. The off-street parking requirements of two or more uses, structures or parcels of land may be satisfied by the same parking or loading space used jointly to the extent that it can be shown by the owners or operators of the uses, structures or parcels that their operations and parking needs do not overlap at any point of time. If the uses, structures or parcels are under separate ownership, the right to joint use of the parking space must be evidence by a deed, lease, contract or other appropriate written document to establish the joint use. 3. Location of Parking Facilities. Off-street parking spaces for dwellings shall be located on the same lot with the dwelling. Other required parking spaces shall be located on the same parcel or another parcel not farther than 500 feet from the building or use they are intended to serve, measured in a straight line from the building in a commercial or industrial zone. Such parking shall be located in a safe and functional manner as determined during site plan approval. The burden of proving the existence of such off-premise parking arrangements rests upon the applicant. 4. Use of Parking Facilities. Required parking space shall be available for the parking of operable passenger automobiles of residents, customers, patrons and employees only and shall not be used for the storage of vehicles or materials or for the parking of trucks used in conducting the business or used in conducting the business or use. Parking, Front Yard. Required parking and loading spaces for multi- family dwellings or commercial and industrial uses shall not be located in a required front yard, except in the Sunriver UUC Business Park (BP) District and the La Pine UUC Business Park (LPBP) District and the LaPine UUC Industrial District (LPI), but such space may be located within a required side or rear yard. F.) Development and Maintenance Standards for Off-Street Parkin Areas 1.) An off-street parking area for more than five vehicles shall be P:Ua Rubenstein Companies\03012 lWanagementUransfers\Old WHP Folders\Office\Word\Prong_condo3_bop.doc W&HPacifzc, Inc. 9 effectively screened by a sight-obscuring fence. Finding: The innovative building design effectively segregates parking into small pods. Further, the building layout and landscaping provide a site obscuring buffer or screen conforming to the general theme and architectural style of the resort. Because five vehicles are not parked side by side, the criteria in not applicable. Even if applicable, the intent of the criteria is met by the innovative design and associated screening and buffering. Further, all units are similar, so any aesthetic impacts are the same for all neighbors. Again, the criteria is met and the intent of the criteria is met. 2.) Any lighting used to illuminate off-street parking areas shall be so arranged that it will not project light rays directly upon any adjoining property in a residential zone. Finding: The applicant will conform to the Deschutes County exterior lighting ordinance, which generally requires cutoff fixtures to restrict light pollution. 3.) Groups of more than two parking spaces shall be located and designed to prevent the need to back vehicles into a street or right of way other than an alley. Finding: The site plan demonstrates maneuvering room for vehicles at each building. Guests may elect to back into the low volume side street, but are not required to back into the street for normal access. 4) Areas used for standing and maneuvering of vehicles shall be paved surfaces adequately maintained for all weather use and so drained as to contain any flow of water on the site. An exception may be made to the paving requirements by the Planning Director or Hearings Body upon finding that: b. The subject use is located outside of an unincorporated community and the proposed surfacing will be maintained in a manner which will not create dust problems for neighboring properties; Finding: Paved parking is proposed for all units. 5. Except for parking to serve residential uses, parking and loading areas adjacent to residential uses shall be designed to minimize P:\Hix Rubenstein Companies\03012 lWanagement\Transfers\Old WHP Folders\Office\Word\Pmng_condo3_bop.doc W&HPacific, Inc. 10 disturbance of residents. 6. Access aisles shall be of sufficient width for all vehicular turning and maneuvering. 7. Service drives to off-street parking areas shall be designed and constructed to facilitate the flow of traffic, provide maximum safety of traffic access and egress and maximum safety of pedestrians and vehicular traffic on the site. The number of service drives shall be limited to the minimum that will accommodate and serve the traffic anticipated. Service drives shall be clearly and permanently marked and defined through the use of rails, fences, walls or other barriers or markers. Service drives to drive in establishments shall be designed to avoid backing movements or other maneuvering within a street other than an alley. 8. Service drives shall have a minimum vision clearance area formed by the intersection of the driveway centerline, the street right of way line and a straight line joining said lines through points 30 feet from their intersection. 9. Parking spaces along the outer boundaries of a parking area shall be contained by a curb or bumper rail placed to prevent a motor vehicle from extending over an adjacent property line or a street right of way. b. Section 18.116.031, Bicycle Parking: A.) Number and Type of Bicycle Parking Spaces Required. 1. General Minimum Standard. All uses that require off-street motor vehicle parking shall, except as specifically noted, provide one bicycle parking space for every five required motor vehicle parking spaces. Except as specifically set forth herein, all such parking facilities shall include at least two sheltered parking spaces or, where more than 10 bicycle spaces area required, at least 50% of the bicycle parking spaces shall be sheltered. Finding: All bicycle parking will be provided inside the garages or under the unit eves. P:\Hix Rubenstein Companies\03012 lWanagemenffransfers\Old WHP Folders\Office\Word\Prong condo3 bop.doe W&HPacific, Inc. 11 4. Chapter 18.124, Site Plan Review a. 18.124.060, Approval Criteria: The approval of a site plan shall be based on the following criteria: 1. The proposed development shall relate harmoniously to the natural environment and existing development, minimizing visual impacts and preserving natural features including views and topographical features. Finding: Overnight accommodations are a required component of destination resorts in Deschutes County. The Residence Club at Pronghorn Condominiums have been located within the resort core, near the clubhouse, and immediately adjacent to the 18th hole on the Nicklaus golf course. They are situated to provide direct access to the numerous recreational amenities offered by the Club as well as to compliment the resort core design and architectural theme. The stone, stucco and timber architecture as well as the trellised walkways and landscape walls help to blend these units in with the surrounding landscape. The architectural theme for the proposed Residence Club at Pronghorn Condominiums will compliment the resort core design theme. The subject site has scattered Juniper trees, which will be preserved where possible. Formal landscaping immediately adjacent to the units will transition into the natural Juniper woodland vegetation at the edges of the proposed development. . The Residence Club at Pronghorn Condominiums exemplifies the High Desert Architectural theme which is loosely based upon the architecture of western National Park style lodges and residential structures. The architecture includes a rich palate of materials including stone, stucco and timber. The mass of the buildings will be broken down with hipped roofs, dormers, trellises and courtyards that will articulate the buildings with an architectural richness worthy of a destination resort. The buildings will have private entrance courtyards that will provide for a peaceful transition into the residential units. The landscape will include a combination of native and ornamental plants to provide variety and interest throughout the development. The proposed development will relate harmoniously because it is nestled between the golf course and the resort core, preserves native vegetation where possible, and incorporates an architectural theme and style that is compatible with the overall resort. 2. The landscape and existing topography shall be preserved to the greatest extent possible, considering development constraints and suitability of the landscape and topography. Preserved trees and shrubs shall be protected. Finding: Scattered Juniper trees exist throughout the proposed condominium site. Juniper trees and rock outcroppings will be preserved where possible, just as they have been preserved adjacent to the golf course fairway. Formal landscaping in developed areas will transition to native vegetation as P:\11ix Rubenstein Companies\030121\Management\Transfers\Old WHP Folders\Office\Word\Prong_condo3_bop.doc W&HPacific, Inc. 12 intended by the criteria. Juniper trees designated to remain will be fenced and protected during construction. 3. The site plan shall be designed to provide a safe environment, while offering appropriate opportunities for privacy and transition from public to private spaces. Finding: The proposed Residence Club at Pronghorn Condominiums have been designed to provide a visual and physical connection to the resort core and its numerous amenities by its location near to the Trailhead and the Clubhouse. However, the location of the Residence Club at Pronghorn Condominiums is also far enough removed from the resort core to offer the desired privacy for the individual units. The units are served by a smaller side street, Nicklaus Drive, that accesses Pronghorn Club Drive. This narrow street discourages traffic not destined for one of the units and promotes a safe traveling speed along the street that serves these units encouraging a shared use road. The design of the condominium units also provide excellent transitions from public to private space. Each unit is provided with entry patio courtyards and covered patios to assure the privacy inside the units and on patio spaces associated with the units. The unique ability to either lock off or combine adjacent units will accommodate large families, small families, grandparents, nannies, or other guest needs. Visitors to the area will recognize the golf course as public space and the street as a public space, but the residences will be clearly private. The unique architectural design does provide for safety and privacy, and defines public spaces. 4. When appropriate, the site plan shall provide for the special needs of handicapped persons, such as ramps for wheelchairs and Braille signs. Finding: Any special requirements for handicapped persons will be reviewed and confirmed in the building permit process. 5. The location and number of points of access to the site, interior circulation patterns, separations between pedestrians and moving and parked vehicles, and the arrangement of parking areas in relation to buildings and structures shall be harmonious with proposed and neighboring buildings and structures. Finding: The site has one point of vehicular access, thereby limiting potential traffic conflicts. The parking is designed to segregate vehicles and accommodate the residential use. 6. Surface drainage systems shall be designed to prevent adverse impacts on neighboring properties, streets, or surface and subsurface water P:\Hix Rubenstein Companies\030121\Management\Transfers\Old WHP Folders\Office\Word\Prong condo3 bop.doc W&HPacific, Inc. 13 quality. Finding: Storm run-off will be accommodated on-site through retention and infiltration, preventing adverse impacts to neighboring properties, streets, and water quality. See preliminary grading plan as part of the site plan drawing. 7. Areas, structures and facilities for storage, machinery and equipment, services (mail, refuse, utility wires, and the like), loading and parking and similar accessory areas and structures shall be designed, located and buffered or screened to minimize adverse impacts on the site and neighboring properties. Findin : Criteria regarding machinery and equipment are generally not applicable to residential uses. Proposed mechanical units, storage for garbage, and deck/patio space will be enclosed, buffered or screened as noted on building elevations and floor plans. Such areas and facilities are strictly regulated through the resort's internal architectural review process. 8. All above-ground utility installations shall be located to minimize adverse visual impacts on the site and neighboring properties. Finding: Any proposed and all existing utilities will be located underground. This criterion is not applicable. 9. Specific criteria are outlined for each zone and shall be a required part of the site plan (e.g., lot setbacks, etc.). Finding: As stated in previous sections of this Burden of Proof, this application clearly demonstrates that the requirements of Chapter 18, Zoning, are met by this application. The site plan contains all required information. See attached exhibit SP.O. 10. All exterior lighting shall be shielded so that direct light does not project off-site. Findin : All exterior lighting will be installed in compliance with Chapter 15.10 of the County Code, Outdoor Lighting Control. All lighting will be shielded so as not to project direct light off-site. b. 18.124.070, Required Minimum Standards: B.) Required Landscaped Areas. 1. The following landscape requirements are established for multi-family, commercial and industrial developments, subject to P:\Hix Rubenstein Companies\030121\Management\Transfers\Old WHP Folders\0ffice\Word\Prong_condo3_b0p.doc W&HPacific, Inc. 14 site plan approval: a. A minimum of 15 percent of the lot area shall be landscaped. b. All areas subject to the final site plan and not otherwise improved shall be landscaped. Finding: This proposed development is for the next 3 condominiums, containing eight residential units each, have a gross footprint of 10,621 square feet each. The approximate lot acreage for the three units is 113,000 square feet. The 15% landscaping requirement amounts to just under 16,950 square feet, which is easily accommodated on the perimeter of each proposed building. Such landscaping will be kept alive and attractive through the installation of an irrigation system. The maintenance of the common area landscaping will be the responsibility of an owners association associated with the Residence Club at Pronghorn Condominiums. 2. In addition to the requirement of DCC 18.124.070(B)(1)(a), the following landscape requirements shall apply to parking and loading areas: a. A parking or loading area shall be required to be improved with defined landscaped areas totaling no less than 25 square feet per parking space. b. In addition to the landscaping required by DCC 18.124.070(B)(2)(a), a parking or loading area shall be separated from any lot line adjacent to a roadway by a landscaped strip at least 10 feet in width, and from any other lot line by a landscaped strip at least five feet in width. c. A landscaped strip separating a parking or loading are from a street shall contain: i. Trees spaced as appropriate to the species, not to exceed 35 feet apart on the average. ii. Low shrubs not to reach a height greater than three feet, zero inches, spaced no more than eight feet apart on the average. iii. Vegetative ground cover. 3. Landscaping in a parking or loading area shall be located in defined landscaped areas which are uniformly distributed throughout the parking or loading area. 4. The landscaping in a parking area shall have a width of not less than five feet. P:\Hix Rubenstein Companies\03012 lWanagementUransfers\Old WHP Folders\Office\Word\Prong condo3 bop.doc W&HPacific, Inc. 15 5. Provision shall be made for watering planting areas where such care is required. 6. Required landscaping shall be continuously maintained and kept alive and attractive. 7. Maximum height of tree species shall be considered when planting under overhead utility lines. C. Non-motorized Access. 1. Bicycle Parking. The development shall provide the number and type of bicycle parking facilities as required in DCC 18.116.031 and 18.116.035. The location and design of bicycle parking facilities shall be indicated on the site plan. 2. Pedestrian Access and Circulation: a. Internal pedestrian circulation shall be provided in new commercial, office and multi-family residential developments through the clustering of buildings, construction of hard surface pedestrian walkways, and similar techniques. b. Pedestrian walkways shall connect building entrances to one another and from building entrances to public streets and existing or planned transit facilities. On-site walkways shall connect with walkways, sidewalks, bikeways, and other pedestrian or bicycle connections on adjacent properties planned or used for commercial, multi-family, public or park use. C. Walkways shall be at least five feet in paved unobstructed width. Walkways which border parking spaces shall be at least seven feet wide unless concrete bumpers or curbing and landscaping or other similar improvements are provided which prevent parked vehicles from obstructing the walkway. Walkways shall be as direct as possible. d. Driveway crossings by walkways shall be minimized. Where the walkway system crosses driveways, parking areas and loading areas, the walkway must be clearly identifiable through the use of elevation changes, speed bumps, a different paving material or other similar method. P:\Hix Rubenstein Companies\03012 lWanagementUransfers\Old WHP Folders\Office\Word\Prong_condo3_bop.doc W&HPacific, Inc. 16 e. To comply with the Americans with Disabilities Act, the primary building entrance and any walkway that connects a transit stop to building entrances shall have a maximum slope of five percent. Walkways up to eight percent slope are permitted, but are treated as ramps with special standards for railings and landings. Findin : Proposed formal landscaping immediately adjacent to the condominium units will be irrigated and maintained by an owner's association. The proposed landscaping easily meets the minimum landscape requirements. Existing trees to be preserve provide an aesthetic screen, protect the native vegetation for the resort, and to transition the site perimeter back to native condition. Loading area criteria do not apply. Pedestrian and bicycle access were addressed previously. IV. CONCLUSION Based on the findings set forth above, and as evidenced by the supporting exhibits submitted by the applicant, the proposed land use action is consistent with all applicable regulations. The applicant respectfully requests the approval of the site plan for the Residence Club at Pronghorn Condominiums, Phase 3, at The Resort at Pronghorn. 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Si o a i O O 3' G W. 2 m i F. ® ® ® ® ® [I C3 E0 ICI •I N E- Z _0 W W 1 •II L W F_ m ou! = y 8 ~ O C W ~ p O 8a a L lOLL6 !i0 NHOHJNOdd 3AIlia 8m Nli0HJN0ad 00959 ONicnino VITA Ian 1. jps, s ~Y ¢g Rig: - ~ ~g~ 411i all LB F? g INN z O U w U) 0 Z_ D _J D co X 0 0 9 N N U wN ?w~ o a U O .1 N S 4 K Q W K S d O D U a O fr'.g 9~ ~a Rol Iili NHH ps ~1 z O U W Z m~ O ~ W n m T • c ~O Z ~z L. o w~ O N O ~w N N ~o € gli 920 SW Emkay, Suite 0100 Bend, Oregon 97702-1041 541.388.4255 Fax 541.388.4229 AN ASCG Ca-my December 6, 2007 Ms. Laura Cooper Ball Janik LLP 15 SW Colorado Av. Suite K Bend, OR 97702 Re: Confirmation of Status of Pronghorn Improvements; Overnight Lodging, Independent Verification of Construction Cost Estimates Dear Laura: Per your request, this letter serves to confirm the status of the improvements at Pronghorn, and to verify that the construction cost estimate for the remaining 24 Residence Club overnight units is less than the amount of the cash account held by Deschutes County as security for completion of overnight lodging units at Pronghorn. As you know, W&H Pacific prepared the site plan application for the remaining three buildings at the Residence Club, buildings 7, 8 and 9. We have also been involved in the preparation and planning of all of the site plans for buildings 1-6. I have reviewed the actual construction costs for those Residence Club buildings that have been completed. In particular, I have reviewed detailed construction costs for buildings 5 and 6, which were completed very recently. Based upon this review, my involvement in preparation of the site plan application for buildings 7, 8 and 9 and my experience in the development business in general and with Pronghorn specifically, I am providing this estimate of construction costs for the remaining three buildings. Buildings 5 and 6 were constructed for approximately $2.12 million apiece. Using the recent formula from the Consumer Price Index (CPI), I estimate that the cost of constructing these units will be approximately $2.20 million per building, assuming construction is initiated in 2008, which is currently anticipated. Therefore the costs of completing the next three proposed Residence Club buildings, totaling 24 units, is an estimated $6.60 million. Pronghorn Investors, LLC ("Pronghorn") is proposing that the existing cash account held by Deschutes County (which is currently approximately $8.5 million) provide the security for these future Residence Club units, and that Pronghorn provide separate bonds for the other overnight products that it is proposing. Given a construction estimate of $6.6 million, we believe the amount of the cash account deposited with the County to be more than adequate to cover 110% of the estimated costs to construct buildings 7, 8 and 9 of the Residence Club. whpacific.com planners surveyors engineers EX 115TTrchitects Please do not hesitate to contact me for additional information regarding the status of improvements at the resort site. Sincerely, cific, c. Senior Project Manager P:\Hix Rubenstein Companies\030121\Management\Correspondence\Letter\124007RHIALetterToBalllanikDOC Exhibit 6: Draft Bond for Spa Buildings - STILL TO COME DocumenO 4-+ c~ a~ i-I E Z Cie O Z 1) Cl.. u u a~ ^IZ Fil C~ CCS pit . 9.4 z 0 0 N ~O bA v v r W -T i X W Z cz Z I CL +r a~ 3 i1 0 ~y9 a~ u a~ G~ GCS z 0 0 N lc~ bA le, Ice , ca u , C C.7 G, i ~ m CA 00 a N L4 , cv U 1.4 O od to I en O iQO' ~ ~ N H F O II F 00 U ttt U ri O O W bA 0 Z [~G ^^O U cd V u e p ~O u U J ~ 00 i i r r i ~ v w N 0 00 W rn N Ia I A 5 Ir. H 00 00 ) O 1 i J \J i ~-F-1 0 Cd cd a 0 0 w 0 U C!~ Z Z Z 0 M C~ U U ~ v0-1 L U 4 3 r 0 U Z CMG 0 O 'b ~ U W O w .a C V V 1 V Q Project: Pronghorn 8-piex - (All) Bid, (spa keitdchces) Date: 21-Sep-07 Time: 11:22:22 AM ompany ~ ® 1 859 76119 Kirby Nagelhout Construction 0635 Brinson Boulevard Bend, Oregon 97701) 11111) Code Description Quantity Unit Unit Cost Line Cost Division Cost Cost per Sq. Ft Division 1 - General Conditions 01000 General Conditions 1 Budget $340,266.00 $340,266.00 $9.99 $340,266.00 $9.99 Division 2 - Site Work 02220 Excavation & Grading 1 Budget $6,067.53 $6,067.53 $0.18 02280 Building Construction 1 Budget $88,789.15 $88,789.15 $2.61 02400 Boulder Wall 40 Lineal Ft $55.00 $2,200.00 $0.06 02600 Utility Trenching 1 Budget $6,266.03 $6,266.03 $0.18 02515 Pavers - Hardscapes 10,280 Square Ft. $9.25 $95,090.00 $2.79 02515 Patio Pavers (front) 1,965 Square Ft $9.25 $18,176.25 $0.53 02515 Patio Pavers (back) 3,867 Square Ft $9.25 $35,769.75 $1.05 $252,358.71 $7.41 Division 3 - Concrete 03100 Building Foundation 1 Budget $9,141.00 $9,141.00 $0.27 03100 Foundation Walls 1 Budget $129,600.00 $129,600.00 $3.81 03100 Columns 1 Budget $9,714.00 $9,714.00 $0.29 03100 Ventilation Well Pit & Slab 1 Budget $3,595.00 $3,595.00 $0.11 03100 PT Suspended Building Slab 1 Budget $173,769.00 $173,769.00 $5.10 03100 Building Slab 1 Budget $65,414.00 $65,414.00 $1.92 03100 Exterior Stair & Elevator Shaft 1 Budget $39,186.00 $39,186.00 $1.15 03950 Gyp-Crete -1-1/2` 7,084 Square Ft $0.65 $6,021.40 $0.18 03950 Gyp-Crete - 3" with Sound Barrier 7,092 Square Ft $1.55 $10,992.60 $0.32 $447,433.00 $13.14 Division 4 - Masonry 04400 Deck Pavers on Pedestals (front) 1,580 Square Ft $10.25 $16,195.00 $0.48 04400 Deck Pavers on Pedestals (back) 560 Square Ft $10.25 $5,740.00 $0.17 04500 Interior Rock Work 1,440 Square Ft $31.95 $46,008.00 $1.35 04600 Exterior Rock Work 5,862 Square Ft $31.95 $187,290.90 $5.50 $255,233.90 $7.50 Division 6 - Wood & Plastics 06001 Misc. Framing Hardware 1 Budget $5,000.00 $5,000.00 $0.15 06100 Rough Framing 67,067 Board Ft $2.08 $139,727.99 $4.10 06245 6 x 12 Roof Beams Select DF FOH KD 7,673 Board Ft $4.05 $31,076.00 $0.91 06245 Roof Beams Rough Sawn DF FOH KD 13,181 Board Ft $4.30 $56,677.99 $1.66 06320 Truss Package 1 Budget $13,787.00 $13,787.00 $0.40 06330 1-3/4 x 11-7/8 TJI L90's 11,250 Lineal Ft $5.68 $63,954.59 $1.88 06520 Cedar Board & Batt Siding 3,800 Square Ft $7.11 $27,030.67 $0.79 06530 Exterior Wood Trim, Soffit, & Decking 11,979 Board Ft $6.12 $73,318.00 $2.15 06505 Soffit Material 1,524 Square Ft $2.15 $3,277.00 $0.10 06540 Interior Wood Railing at Stairs (handrial, post, and iron balusters) 140 Lineal Ft $75.00 $10,500.00 $0.31 06540 Exterior Cedar Railing at Decks & Walkways 325 Lineal Ft $34.73 $11,287.00 $0.33 06620 Interior Wood Trim - Base 4,210 Lineal Ft $8.42 $35,448.20 $1.04 06620 Interior Wood Trim - Window Casing & Jamb 2,136 Lineal Ft $8.63 $189423.00 $0.54 06620 Interior Wood Trim - Door Jamb Trim 4,768 Lineal Ft $8.83 $429101.44 $1.24 06620 Interior Wood Trim - 2 x 6 T&G Ceiling 6,657 Board Ft $7.46 $49,657.00 $1.46 06256 Pergolas 715 Square Ft $15.00 $10,725.00 $0.32 06700 Custom Casework - Kitchen Base Cabinets 220 Lineal Ft $225.00 $49,500.00 $1.45 06700 Custom Casework - Kitchen Upper Cabinets 170 Lineal Ft $112.00 $19,040.00 $0.56 06700 Custom Casework - Vanity Cabinets 100 Lineal Ft $135.00 $13,500.00 $0.40 06700 Custom Casework - Utility/Laundry Room Cabinets 36 Lineal Ft $112.00 $4,032.00 $0.12 06700 Custom Casework - Office Cabinets 44 Lineal Ft $275.00 $12,100.00 $0.36 06700 Custom Casework - Bar Cabinets 67 Lineal Ft $230.00 $15,410.00 $0.45 06705 Granite Countertops - Kitchen 440 Square Ft $70.00 $30,800.00 $0.90 06705 Granite Countertops - Vanity 200 Square Ft $65.00 $13,000.00 $0.38 06705 Granite Countertops - Bar 134 Square Ft $65.00 $8,710.00 $0.26 06720 Stained Wood Closet System 200 Lineal Ft $125.00 $25,000.00 $0.73 $783,082.88 $23.00 Division 7 - Thermal Protection 07100 Foundation Wall Dampproofin 17,365 Square Ft $2.00 $34,730.00 $1.02 07196 Building Paper 22,901 Square Ft $0.60 $13,740.00 $0.40 07196 Roof Felt - 30# 18,600 Square Ft $0.60 $11,159.35 $0.33 07200 Thermal Batt Insulation - Wall 16,705 Square Ft $0.82 $13,698.10 $0.40 07200 Thermal Batt Insulation - Ceiling 10,524 Square Ft $1.04 $10,944.59 $0.32 07200 Thermal Batt Insulation - Demising Wall Sound Insulation 9,170 Square Ft $0.82 $7,519.40 $0.22 07201 Rigid Wall Insulation 2,960 Square Ft $1.95 $5,772.00 $0.17 07220 Rigid Roof Insulation 6,920 Square Ft $3.76 $26,004.00 $0.76 07330 Blended Color Tile Roofing 186 Square $580.00 $107,880.00 $3.17 07610 Standing Seam Metal Roofing - Copper 650 Square Ft $10.50 $6,825.00 $0.20 07900 Joint Sealant 1 Budget $3,600.00 $3,600.00 $0.11 $241,872.43 $7.10 Division 8 - Doors & Windows 08100 Hollow Metal Doors & Frames 7 Each $450.00 $3,150.00 $0.09 08200 Wood Entry Door & Frame 8 Each $2,237.50 $17,900.00 $0.53 08200 Interior Wood Door & Frame 68 Each $287.50 $19,550.00 $0.57 08360 Wood Garage Door 1 Each $6,565.00 $6,565.00 $0.19 08360 Aluminum Garage Door 8 Each $2,375.00 $19,000.00 $0.56 08610 Aluminum Clad Wood Windows 1,956 Square Ft $34.97 $68,404.00 $2.01 08700 Door Hardware 1 Budget $26,549.00 $26,549.00 $0.78 08800 Frameless Glass Shower Doors 8 Each $1,350.00 $10,800.00 $0.32 08800 Mirrors 544 Square Ft $6.50 $3,536.00 $0.10 $175,454.00 $5.15 Division 9 - Finishes 09110 Steel Framing - Soffits 800 Square Ft $6.00 $4,800.00 $0.14 09110 Steel Framing - RSIC clips 3,300 Lineal Ft $0.98 $3,234.00 $0.09 09225 Stucco Siding 15,500 Square Ft $6.50 $100,750.00 $2.96 09250 Gypsum Drywall 83,450 Square Ft $1.05 $87,622.50 $2.57 09310 Slate Tile - Kitchen Floor 965 Square Ft $10.50 $10,132.50 $0.30 09310 Slate Tile - Kitchen Backsplash 384 Square Ft $10.50 $4,032.00 $0.12 09310 Travertine Tile - Master Bath 1,040 Square Ft $20.00 $20,800.00 $0.61 09310 Travertine Tile - Guest Bath 460 Square Ft $20.00 $9,200.00 $0.27 09310 Travertine Tile - Utility/Powder Room 783 Square Ft $20.00 $15,660.00 $0.46 09550 Distressed Wood Flooring - Living Room 1,908 Square Ft $11.84 $22,581.18 $0.66 09550 Distressed Wood Flooring - Stairs & Risers 250 Square Ft $14.08 $3,520.00 $0.10 09680 Carpet & Pad - Office 44 Square Yd $35.00 $1,555.40 $0.05 09680 Carpet & Pat - Master Bedroom 220 Square Yd $35.00 $7,715.40 $0.23 09680 Carpet & Pad - Walk-In Closet 63 Square Yd $35.00 $2,191.00 $0.06 09680 Carpet & Pad - Guest Bedroom 161 Square Yd $35.00 $5,629.40 $0.17 09680 Carpet & Pad - Den 72 Square Yd $35.00 $2,504.60 $0.07 09680 Carpet & Pad - Dining 107 Square Yd $35.00 $3,757.60 $0.11 09680 Carpet & Pad - Ent 91 Square Yd $35.00 $3,173.10 $0.09 09680 Carpet & Pad - Hallway 91 Square Yd $35.00 $3,189.20 $0.09 09680 Carpet & Pad - Hall Closet 25 Square Yd $35.00 $863.10 $0.03 09680 Carpet & Pad - Office Closet 2 Square Yd $35.00 $77.70 $0.00 09680 Carpet & Pad - Loft 133 Square Yd $35.00 $4,666.90 $0.14 09680 Carpet & Pad - Storage 44 Square Yd $35.00 $1,524.60 $0.04 09680 Carpet & Pad Runner at Stairs 18 Square Yd $35.00 $621.60 $0.02 09900 Painting & Finishing - Interior 83,450 Square Ft $0.75 $62,587.50 $1.84 09900 Painting & Finishing - Exterior 23,650 Square Ft $0.65 $15,372.50 $0.45 $397,761.78 $11.68 Division 10 - Specialties 10200 Cast Iron Gas Fireplace 8 Each $4,314.07 $34,512.56 $1.01 10800 Toilet Accessories - Toilet Paper Holders 20 Each $30.67 $613.33 $0.02 10800 Toilet Accessories - Towel Bars 20 Each $57.67 $1,153.33 $0.03 10800 Toilet Accessories - Towel Ring 28 Each $47.67 $1,334.67 $0.04 10800 Toilet Accessories - Robe Hooks 20 Each $37.67 $753.33 $0.02 $38,367.22 $1.13 Division 11 - Equipment 11450 Residential Appliances - 4-burner Wolf Range 8 Each $7,199.00 $57,592.00 $1.69 11450 Residential Appliances - Sub-Zero Refrigerator 8 Each $7,507.00 $60,056.00 $1.76 11450 Residential Appliances - GE Monogram Wine Cooler 8 Each $1,552.00 $12,416.00 $0.36 11450 Residential Appliances - GE Monogram Dishwasher 6 Each $1,078.00 $8,624.00 $0.25 11450 Residential Appliances - Ran ehood 8 Each $792.00 $6,336.00 $0.19 11450 Residential Appliances - Microwave 8 Each $1,799.00 $14,392.00 $0.42 11450 Residential Appliances - Garbage Disposal 8 Each $350.00 $2,800.00 $0.08 11450 Residential Appliances - GE Washer 8 Each $950.00 $7,600.00 $0.22 11450 Residential Appliances - GE Dryer 8 Each $750.00 $6,000.00 $0.18 $175,616.00 $5.16 Division 12 - Furnishings 12505 Horizontal Wood Blinds 1' 1,800 Square Ft $8.50 $15,300.00 $0.45 $15,300.00 $0.45 Division 14 Conveying Systems 14240 Passanger Elevator - 3 stop 1 Each $81,000.00 $81,000.00 $2.38 $61,000.00 $2.38 Division 15 - Mechanical 15300 Fire Protection System - Garage 14,409 Square Ft. $2.50 $36,022.50 $1.06 15300 Fire Protection System - Residential Units 15,768 Square Ft. $2.50 $39,420.00 $1.16 15300 Fire Protection System - Canopies & Decks 3,867 Square Ft. $2.50 $9,667.50 $0.28 15300 Fire Protection System - Riser & Back Flow 1 Each $4,500.00 $4,500.00 $0.13 15400 Plumbing - Water Lines 1,800 Lineal Ft. $13.75 $24,750.00 $0.73 15400 Plumbing - Sanitary Sewer Piping 1,500 Lineal Ft. $29.50 $44,250.00 $1.30 15400 Plumbing - Gas Piping 600 Lineal Ft. $6.50 $3,900.00 $0.11 15400 Plumbing - Gas Stub @ Deck/Patio 8 Each $650.00 $5,200.00 $0.15 15400 Plumbing - Domestic Hot Water Recirculation Pump 8 Each $2,500.00 $20,000.00 $0.59 15400 Plumbing - Floor Drains 2 Each $450.00 $900.00 $0.03 15400 Plumbing - Parkin Trench Drain 30 Lineal Ft. $215.00 $6,450.00 $0.19 15400 Plumbing - Patio Area Drains 7 Each $950.00 $6,650.00 $0.20 15400 Plumbing - Hose Bibs 6 Each $450.00 $2,700.00 $0.08 15400 Plumbing - Elevator Sump Pumps 1 Each $2,500.00 $2,500.00 $0.07 15400 Plumbing - Toilet 20 Each $950.00 $19,000.00 $0.56 15400 Plumbing - Lavatory 20 Each $1,500.00 $30,000.00 $0.88 15400 Plumbing - Lavatory (hammered copper) 8 Each $1,755.00 $14,040.00 $0.41 15400 Plumbing - Shower/Bath Fixtures 12 Each $2,335.00 $28,020.00 $0.82 15400 Plumbing - Soaking Tub 8 Each $4,500.00 $36,000.00 $1.06 15400 Plumbing - Refrigerator Hookup 8 Each $350.00 $2,800.00 $0.08 15400 Plumbing - Dishwasher Hookup 8 Each $450.00 $3,600.00 $0.11 15400 Plumbing - Kitchen Sink 8 Each $1,500.00 $12,000.00 $0.35 15400 Plumbing - Garbage Disposal Hookup 8 Each $250.00 $2,000.00 $0.06 15400 Plumbing - Range Hookup 8 Each $375.00 $3,000.00 $0.09 15400 Plumbing - Washer Hookup 8 Each $425.00 $3,400.00 $0.10 15500 HVAC - Garage 14,409 Square Ft. $4.50 $64,840.50 $1.90 15500 HVAC - Residential units 15,768 Square Ft. $7.50 $118,260.00 $3.47 $543,870.50 $15.98 Division 16 - Electrical 16000 Exterior Lighting/Electrical Package - Residential 15,768 Square Ft $12.50 $197,100.00 $5.79 16000 Exterior Li hting/Electrical Package - Canopies & Decks 3,867 Square Ft $3.50 $13,534.50 $0.40 16000 Exterior Lighting/Electrical Package - Garage 14,409 Square Ft $3.95 $56,915.55 $1.67 $267,550.05 $7.86 Subtotal $4,015,366.48 KNCC Estimating Contin enc % 10.00% KNCC Estimating Contingency $401,536.65 Subtotal $4,416,903.12 KNCC Overhead & Profit % 4.00% KNCC Overhead & Profit $176,676.12 Total Budget $4,593,579.25 Total Budget $4,593,579.25 Square Feet 34,044 Cost per Square Foot $134.93 Exhibit 9: Draft Bond for Hotel - STILL TO COME Document2 U) z CL O a U a z g a LL O O w O O J LL LL Cn Q C'7 H r s r cd O d SJ i x 2 w O O J LL 0 LL z O U cc t~ C_ N C J u u r-I j LL Lj- U) • ~ EXHIBIT