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2010-2745-Minutes for Meeting July 07,2010 Recorded 7/16/2010DESCHUTES COUNTY OFFICIAL NANCY BLANKENSHIP, COUNTY COMMISSIONERS' JOURNAL 1111111111111111111111111111 111 2010-2745 CLERKDS 4d ~0~0~27~~ 07/16/2010 11:29:09 AM Do not remove this page from original document. Deschutes County Clerk Certificate Page 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 WEDNESDAY, JULY 7, 2010 Commissioners' Hearing Room - Administration Building - 1300 NW Wall St., Bend Present were Commissioners Dennis R. Luke, Alan Unger and Tammy Baney. Also present were Dave Kanner, County Administrator; Laurie Craghead, County Counsel; Paul Blikstad, George Read, Peter Gutowsky and Cynthia Smidt, Community Development; Sherri Pinner, Health Services; Joe Sadony, Information Technology; media representative Hillary Borrud of The Bulletin; and six other citizens. Chair Luke opened the meeting at 10:00 a.m. 1. Before the Board was Citizen Input. Commissioner Baney said that she won Best of Show and Judges' Overall Favorite at the La Pine Parade and Lawnmower Race, and is now the proud owner of a pink riding lawnmower. 2. Before the Board was Consideration of Chair Signature of Document No. 2010-404, a Notice of Intent to Award a Contract for a Behavioral Health Information Management and Electronic Records System. Sherri Pinner gave a brief overview of the item. The process has taken over two years, and included an RFP and site visits. Commissioner Unger asked if the system talks to each other. Ms. Pinner indicated this is called an exchange, and they are working towards that with other health providers. BANEY: Move Chair signature. UNGER: Second. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 1 of 14 Pages VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. 3. Before the Board was a Public Hearing and Consideration of First and Second Reading by Title Only and Adoption of Ordinance No. 2010-022, Amending the Deschutes County Code Chapter 18.216 to Comply with New State Statute Provisions, Amending DCC 18.128.360, to Revive Guest Ranch Provisions, and Adding to DCC 18.04.030 a Definition of Current Employment of Land for Farm Use, and Declaring an Emergency. Chair Luke opened the hearing, and Paul Blikstad read the opening statement. In regard to personal interest, the Commissioners had none to declare. There were no challenges from the public. There has been a work session on this issue with staff. Mr. Blikstad said that there have been legislative bills that made changes to EFU uses. High value farm land has been redefined, and the provision for guest ranches in the EFU has temporary been reinstated, through 2011. Commissioner Unger said that high value crop land has been used for destination resorts, which is different than high value farm land. Mr. Blikstad indicated that land within an irrigation district is considered high value farm land regardless of the type of soil. Therefore, he feels that there will not be any more golf courses placed within an irrigation district. The County needs to change its Code to comply with the new definitions passed by the State, in part because of Measure 49. This is being done by emergency since the County is required to comply with State law now and not ninety days from now. And this will allow those interested in guest ranches to proceed since they have a limited amount of time available to them. This is the fourth extension of the guest ranch provision. Laurie Craghead said that the Ordinances still need some review and it would be best to delay adoption until the July 19 Board business meeting. No public testimony was offered. The hearing was continued until the July 19, 2010 business meeting.. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 2 of 14 Pages 4. Before the Board was a Public Hearing (continued) on File No. CU-10-2, regarding the Hearings Officer's Denial of a Conditional Use Permit to Establish a Room and Board Arrangement in the Exclusive Farm Use Zone. Cynthia Smidt briefed the Commissioners on the item. At question is the definition of room and board, and whether that is what the applicant is seeking. County Code and the State do not define room and board. Staff will seek information from Code and the State, and then will go to the dictionary to seek a definition. The applicant provided information on the various ways to look at room and board. Commissioner Luke stated that taking a definition out of a dictionary is hard for him to do. Legislation does not always follow the usual definition, but it is a place to start. He feels that the applicant went forward with a bed and breakfast application on the advice of staff, and a decision needs to be made as to whether this was really a room and board application. Ms. Smidt agreed. Ms. Craghead stated that she has not found ay case law defining room and board. There has only been one case in a different county of bed and breakfast as a home occupation, and it was allowed. Ms. Smidt indicated that the Hearings Officer looked at it as a bed and breakfast, and felt that it was a different use from room and board. Commissioner Baney said that the matrix and other information have been reviewed. She feels that this is more of a guest ranch than room and board or a bed and breakfast. Commissioner Luke stated that a guest ranch has acreage requirements. Ms. Smidt said that she sees room and board that could encompass some of the same amenities and uses. It is not solely bed and breakfast or a guest ranch. Room and board is much broader. Commissioner Unger said that room and board used to be something found in cities. The challenge is what this might open the floodgates to. Commissioner Luke stated that he would like to define both terms, but not in this case. There could be unintended consequences and he would like to see more public input. In this instance, he feels that this is room and board, with unlimited meals, and with a stay of thirty days or more. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 3 of 14 Pages Commissioner Baney said that they are seeking to use four rooms. In her opinion, she feels that this fits the guest ranch definition except for the acreage requirement. She is concerned that establishing this as room and board ends up being just another kind of guest ranch. Bed and breakfast is not allowed in an EFU zone. Ms. Craghead stated that the Board can be more restrictive than State law, and statute says that if it was deliberately deleted it cannot be used; although the applicant feels that it was deleted to allow for the definition to be even broader. The applicant, Mr. Anderson, stated they spent a lot of time trying to define room and board arrangements. This cannot be found in the State's legislative history. A guest ranch is a more intense use. The biggest difference between bed and breakfast and room and board is that bed and breakfast is more commercial. The room and board arrangement means that the property has to be owner occupied. The visitors are okay in the house and the owner would live there. The visitors would be free to participate in a variety of uses. They would not be providing horses, but people can bring their own and take part in clinics or learn more about horse care. The argument is whether the use is commercial. Yamhill County is trying to promote tourism in conjunction with EFU zones, and is widening the uses allowed. At this time, there are few places available where people can bring their own horses and be involved in these kinds of activities. Also, this is an existing residence and they are not building additional structures. They are making what they already have, their home and other buildings, available. Commissioner Luke said that the uses of EFU have been narrowed recently by the State. What the applicant wants to do is commendable, but does set precedence regarding the use of EFU ground. The guest ranch legislation was passed because ranchers were having a hard time getting by. This helped the ranchers keep their large land holdings. They are supposed to be actively run ranches, with the visitors supplementing the income. He said this is more complicated than just this application. Commissioner Baney asked about the clinics. Mr. Anderson stated that this is an opportunity for people to be involved and become more educated about their horses. Commissioner Baney asked if there would be compensation for any of the activities. Mr. Anderson stated that if they board horses or if the people stay, there would be some compensation. He is just trying to break even on his EFU ground, which is not in tax deferral. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 4 of 14 Pages Commissioner Baney stated that if there is compensation involved, that is a commercial activity. Mr. Anderson stated that commercial activity is allowed on EFU property. Horse boarding and similar uses are allowed outright, but it is hard to make a living with EFU land. The portion that seems to be a concern is what they do in the residence. The Hearings Officer felt all requirements were met except for the definition of whether it is bed and breakfast or room and board. Ms. Smidt said that bed and breakfast needs to be owner occupied, and room and board does not, per Code. Bed and breakfast was removed from the EFU zone in 2009, but is allowed in MUA zones. Commissioner Unger asked Commissioner Baney if the AOC has addressed this issue. Commissioner Baney said the biggest challenge is allowing people to make a living on their EFU land. This is just the beginning of a long conversation on the issue. She feels that this particular property would not have a huge impact, but it could set precedence for others. Commissioner Luke said that zoning works two ways: the owner knows what to expect and so do the neighbors. Forty acres is not a feasible commercial farm in this area. Probably not all land zoned EFU should be within that zone. The problem is the lack of a definition. He believes that room and board should be thirty days or more. Ms. Craghead said that the Board has to define room and board to make a decision of any kind on this application. At a later time, a definition that is different can be addressed. Commissioner Luke said that he feels room and board is more than thirty days, more than one meal can be served, and it would be owner occupied. Ms. Craghead stated that equestrian training and clinics are already allowed. The difference is letting the guests stay overnight. This is a conditional use, and the County can be more restrictive than State law. Commissioner Luke said that up to five non-related people can live in a house. He asked why an application is needed for this purpose. Homes in EFU can have up to five unrelated people living in them. Ms. Craghead said that this needs a conditional use permit if they are charged. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 5 of 14 Pages Commissioner Baney stated that there is a difference between renting a room and renting overnight accommodations. Ms. Smidt disagrees with the fact that even if they were staying less than thirty days, they are not a bed and breakfast if they serve more than one meal a day. Bed and breakfast is almost like a specialized version of room and board. Room and board does not limit the number of days or meals. Commissioner Unger would like to see all landowners be successful, with protection of the area and the neighbors. He was curious about expanded uses within the EFU zone. Commissioner Baney said that if there are three basic uses: bed and breakfast, room and board and guest ranch. A guest ranch needs 160 acres, with up to ten rooms, with no specification on length of stay or the number of meals. Bed and breakfast is more defined. She feels room and board is up to four rooms, the number of meals could be anything, and it would be owner occupied. The maximum number of days is not specific. This would compliment the other activities that are already allowed. Ms. Craghead asked that if they wanted to use just three rooms and one meal, would that be allowed. Commissioner Baney said that this would be allowed `up to' a certain amount. It would allow for overnight accommodations as well as a ranch hand who might stay much longer. Ms. Craghead said by setting maximums and no minimums, it is not as clear. Mr. Anderson stated that bed and breakfast has to be an allowed use. There are allowances for small scale operations. Anyone could say they are only going to provide one meal, but that could be breakfast or dinner. The main focus is not the living arrangements, but the other activities. Commissioner Unger would like to continue the hearing to consider the `what ifs'. He is concerned about the potential ramifications with other properties. Ms. Smidt said that the clock runs out on July 24. The Board has the option to confirm the Hearings Officer's decision, or define the issue. Commissioner Baney said that it is not the applicant's fault that the County does not have a definition in place. How do they not meet it if it is not defined? Matt Cyrus spoke for the Deschutes County Farm Bureau. He is not familiar with the details of this issue, but wanted to encourage additional opportunities for farmers to supplement their income, as long as the use is ancillary in nature and does not impact the use of the farm. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 6 of 14 Pages This fits in completely with the national trend of agri-tourism. This exact thing is being promoted on a national level, as it helps to allow people to remain on their farms. On behalf of the Farm Bureau, he encouraged the Commissioners to find a way to accommodate this request. Commissioner Unger feels that the smaller resorts are being encouraged as well. Ms. Craghead stated that the Board could include this under bed and breakfast. Commissioner Baney said that the definition of room and board could include bed and breakfast. In her opinion, it is like a graduated bed and breakfast. Commissioner Unger stated that he would deny if the clock is not tolled because it needs more clarification before he will be comfortable enough to make a decision. Commissioner Luke said that bed and breakfast was taken out of EFU ground for a reason that is not clear. He cannot support this unless bed and breakfast is not included. Stays would have to be for thirty days or more. Commissioner Baney said that it appears that it would need minimums and maximums. She could keep bed and breakfast out of room and board, with a minimum of three and a maximum of four rooms. Ms. Smidt said it could be for up to four. Commissioner Luke said that the intent needs to be for thirty days' stay. Otherwise, it is a bed and breakfast. Ms. Smidt says thirty days' stay is not mentioned anywhere in statute. Commissioners Luke and Baney agreed that any meals could be served and it would need to be owner occupied. They would allow the applicant to come back after the definitions are better and reapply without paying a fee. Commissioner Unger does not want the County to box itself in with a specific definition without more thought. Ms. Craghead stated that a process could be done to clarify the entire issue. Mr. Anderson said that his original application was for room and board for five unrelated people. The County said they could not accept this and had him go under bed and breakfast. He was agreeable to what was allowed under State law. He has paid over $5,000 to get to this point. It is not fair to take this to another level. The thirty days was not in the original definition. Ms. Craghead said there is no set stay under State law; just five unrelated persons. Because room and board is so broad, the specifics of bed and breakfast can be excluded. He would have to meet what the State includes. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 7 of 14 Pages Commissioner Unger asked how the room and board could have been approved if there is no definition. Ms. Smidt stated that there is a strong chance that the room and board application might have been approved if he had not be instructed to apply under bed and breakfast. Mr. Anderson stated that the room and board arrangement was to allow for some flexibility. Otherwise, the people could not go out and fish, hunt or whatever else on EFU properties. Even room and board arrangements have never been defined at having to be thirty days. It could have been a day, a week or longer. This seems unreasonable. They want to be able to have a ranch hand stay for a season but also be able to bring people onto the property for horse related, short-term activities. They only went under bed and breakfast because staff said they had to. The State allowed for different arrangements. Ms. Craghead said that wineries are allowed to have events now, and hunting and fishing preserves are another use allowed as a conditional use on EFU ground. Commissioner Baney said that on page 6 or 16 of the decision, the Hearings Officer felt that room and board focused on longer range stays. Commissioner Luke stated that he does not feel this type of use is a problem, but he wants to see the stays for thirty days or more. Commissioner Unger is not comfortable deciding on a definition of room and board at this time. Commissioner Baney feels that the number of days should be more flexible. Thirty days may not work for most people, not even a ranch hand who might stay for just a week or two. Historically room and board has not been just thirty days. This would be more of a hybrid. And the activities detailed are already allowed on the property. Ms. Smidt said that Commissioner Unger did agree with some of the definitions and the thirty day minimum; also, the maximum number of persons, up to five unrelated; one to four rooms; owner occupied property; and any number of meals. The duration is the issue. The applicant could come back to ask for a text amendment allowing for a shorter stay. Ms. Craghead stated that room and board is broadly defined, and bed and breakfast is not included until the issue is clarified. Any decision made today can be changed in the future by a different Board. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 8 of 14 Pages Dave Kanner stated that the Board could approve as a room and board using a thirty day minimum, adopting the Hearings Officer's findings except for A and F, and adopt a text amendment to allow for an application for a stay of less than thirty days in the future. Mr. Anderson could reapply for this at some point, and needs to understand it is possible it might not be approved by a future Board. Commissioner Unger wants to have definitions, but using thirty days makes it less commercial and may be a good start. Commissioner Baney asked if it could be sent back to the Hearings Officer as room and board. The hearing was closed at this time. BANEY: Move approval with the condition of requiring no more than five unrelated persons, a maximum number of rooms of four, any number of meals be allowed, and that any number of days be allowed. The motion died for lack of a second. Commissioner Luke pointed out that it is clear that this is an issue that the Commissioners want to address more fully. LUKE: Move approval specifying up to five unrelated persons, a maximum number of rooms at four, no limit on the number of meals, and a thirty day minimum stay, including the conditions as stated by the Hearings Officer with the exception of A and F. UNGER: Second. VOTE: BANEY: UNGER: LUKE: No. (Split vote) Yes. Chair votes yes. 5. Before the Board were Deliberations on Ordinances No. 2010-024 and 2010-025, relating to Destination Resort Map Amendment Procedures, Goals and Policies (continued from June 30). Peter Gutowsky gave an overview of the status of the item. There has been some testimony submitted since the last meeting, which is now a part of the record. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 9 of 14 Pages Commissioner Baney asked if she had property that was already mapped and she wanted to remain mapped, and had deed restrictions and other documents that might allow the property to remain mapped, would that work. Commissioner Luke said that the property owners were to ask to remain mapped at the time of purchase, but some of the properties now have other owners. Ms. Craghead said there is a Code provision that allows for the property owner or someone with authorization to do so, and the application would probably be allowed. It is the same thing that happens when there is an easement or a lease if it allows certain things to be authorized. Someone can challenge the validity, and past practice has been to leave the defense to the applicant. The County has to provide the LUBA record. Mr. Gutowsky stated that from a Planning perspective, in a general sense the Board needs to determine if a cluster development should remain eligible through whatever means. By deciding this, the CCR provision should be set aside because it is litigious. Eligibility would be based on the physical characteristics and not whether the property owners agree. Ms. Craghead said this would leave them on the map if they meet eligibility requirements. Commissioner Luke stated that cluster developments are different because they have 50% open space and other things that make them different than traditional subdivisions. Ms. Craghead said that if the Board does not want cluster developments included, language would have to be removed. Commissioner Baney noted that a cluster development is a clearly defined land use action. She wants to get to the open playing field, and the deed language does appear to allow for it to be included in remapping. She does not feel that every cluster development should remain on the map, but clarity is needed if there are deed restrictions. Mr. Gutowsky stated that there is one area south of Sunriver which could fit, but there are probably fewer than five overall. Commissioner Luke noted that this would not make the map more unwieldy. He does not see a problem leaving cluster developments on the map. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 10 of 14 Pages Commissioner Unger asked about platted subdivisions. He was advised that most would not fit the criteria. Commissioner Luke said that this would not help to reduce the map. Commissioner Baney asked what the difference is other than open space. Ms. Craghead indicated that the deed restrictions should not be a part of the process. She recommends either include cluster developments platted before 1990 with 50% open space automatically stay on, or all cluster developments stay off. Commissioner Baney said she cannot deny someone who has documentation that might allow this. The County should not be in a position to have to recognize it. Mr. Gutowsky stated that the application could be accepted and go to the Planning Commission that could make a policy decision regarding the deed restrictions. There is a concern of precedence and a risk of litigation in either case. The County does not enforce deed restrictions or CCR's. Commissioner Baney indicated that she has only heard positive comments from those who would be affected by the deed restrictions, to remain mapped. The opposition does not seem to be those who are directly affected by the deed restrictions but those with another agenda. She wants this to be played out. Mr. Gutowsky gave an overview of what the possible language might be. Commissioner Baney stated that she is trying her best to not make this about one particular piece of property as this is a Countywide issue. Commissioner Luke stated there could be several more. Mr. Gutowsky said that Crosswater is mapped but he does not know about Vandevert. This aspect has been evaluated before, but he would have to research the issue to have a complete list. Likely there are just a handful. Commissioner Unger would like to see platted subdivisions included. Mr. Gutowsky said that this could add 20,000 to 40,000 acres. Commissioner Baney would like to let people remain on the map and apply so that it is clearer. Commissioner Unger would like to see the existing resorts be more successful and not negatively be impacted. UNGER: Move that the language regarding cluster developments be adjusted, as follows. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 11 of 14 Pages Add the following eligibility criterion to Ordinance 2010-024,- Exhibit A, DCC 23.84.030(3d)(6): "All property within a subdivision for which cluster development approval was obtained prior to 1990, for which the original cluster development approval designated at least 50 percent of the development as open space and which was within the destination resort zone prior to the effective date of Ordinance 2010-024 shall remain on the eligibility map." Remove the following language from Ordinance 2010-0255 Exhibit A, DCC 22.23.010(D) "All lots in a previously platted and developed subdivision shall be eligible to remain on the eligibility map in the same manner as DCC 22.23.010(C). 1. Each lot in the subdivision must contain a deed restriction or Covenant, Condition and Restriction that authorizes the original developer of that subdivision, or its successors in interest, to apply for conversion of the subdivision to a destination resort; 2. The original developer of that subdivision, or its successors in interest, may apply on behalf of all of the individual lot owners to remain on the eligibility map." LUKE: Second. VOTE: BANEY: UNGER: LUKE: No. (Split vote) Yes. Chair votes yes. The final decision document will be presented for consideration at the July 14, 2010 business meeting. 6. Before the Board was Consideration of Signature of Order No. 2010-040, Denying a Protest of an Award of a Proposed Biomass Contract. UNGER: Move approval. BANEY: Second. VOTE: BANEY: UNGER: LUKE: Yes. Yes. Chair votes yes. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 12 of 14 Pages Before the Board was Consideration of Approval of the Consent Agenda. UNGER: Move approval. BANEY: Second. VOTE: BANEY: Yes. UNGER: Yes. LUKE: Chair votes yes. Consent Agenda Items: 7. Approval of Minutes: • June 30 Work Session • June 28 Business Meeting CONVENED AS THE GOVERNING BODY OF THE 911 COUNTY SERVICE DISTRICT 8. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the 911 County Service District in the Amount of $1409156.01. UNGER: Move approval, subject to review. BANEY: Second. VOTE: BANEY: UNGER: LUKE: Yes. Yes. Chair votes yes. CONVENED AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 9. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for the Extension/4-11 County Service District in the Amount of $985.10. UNGER: Move approval, subject to review. BANEY: Second. VOTE: BANEY: UNGER: LUKE: Yes. Yes. Chair votes yes. Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 13 of 14 Pages RECONVENED AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 10. Before the Board was Consideration of Approval of Weekly Accounts Payable Vouchers for Deschutes County in the Amount of $725,197.18. UNGER: Move approval, subject to review. BANEY: Second. VOTE: BANEY: UNGER LUKE: Yes. Yes. Chair votes yes. 11. Before the Board were Additions to the Agenda. No other items were discussed. The meeting adjourned at 12:30 p.m. DATED this 7th Day of July 2010 for the Deschutes County Board of Commissioners. ennis R. Luke, C air 6J, a" Alan Unger, Vice Chair ATTEST: / Tammy Baney, Commissioner Recording Secretary Minutes of Board of Commissioners' Business Meeting Wednesday, July 7, 2010 Page 14 of 14 Pages 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 DESCHUTES COUNTY BOARD OF COMMISSIONERS 10:00 A.M., WEDNESDAY, JULY 7, 2010 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 Chair Signature of Document No. 2010-404, a Notice of Intent to Award a Contract for a Behavioral Health Information Management and Electronic Records System - Sherri Pinner, Behavioral Health; Joe Sadony, Information Technology 3. A PUBLIC HEARING and Consideration of First and Second Reading by Title Only and Adoption of Ordinance No. 2010-022, Amending the Deschutes County Code Chapter 18.216 to Comply with New State Statute Provisions, Amending DCC 18.128.360, to Revive Guest Ranch Provisions, and Adding to DCC 18.04.030 a Definition of Current Employment of Land for Farm Use, and Declaring an Emergency - Paul Blikstad, Community Development 4. A PUBLIC HEARING (continued) on File No. CU-10-2, regarding the Hearings Officer's Denial of a Conditional Use Permit to Establish a Room and Board Arrangement in the Exclusive Farm Use Zone - Cynthia Smidt, Community Development 5. DELIBERATIONS on Ordinances No. 2010-024 and 2010-025, relating to Destination Resort Map Amendment Procedures, Goals and Policies (continued from June 30) - Peter Gutowsky, Community Development Board of Commissioners' Business Meeting Agenda Wednesday, July 7, 2010 Page 1 of 6 Pages 6. CONSIDERATION of Signature of Order No. 2010-040, Denying a Protest of an Award of a Proposed Biomass Contract - Mark Pilliod, County Counsel CONSENT AGENDA 7. Approval of Minutes: • June 30 Work Session • June 28 Business Meeting CONVENE AS THE GOVERNING BODY OF THE 911 COUNTY SERVICE DISTRICT 8. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the 911 County Service District CONVENE AS THE GOVERNING BODY OF THE EXTENSION AND 4-H COUNTY SERVICE DISTRICT 9. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for the Extension/4-14 County Service District RECONVENE AS THE DESCHUTES COUNTY BOARD OF COMMISSIONERS 10. CONSIDERATION of Approval of Weekly Accounts Payable Vouchers for Deschutes County 11. ADDITIONS TO THE AGENDA 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 Wednesday, July 7, 2010 Page 2 of 6 Pages 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) Wednesday, July 7 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 5:00 p.m. Regular Joint Meeting with the City of Bend Council - at Bend City Chambers Thursday, July 8 7:00 a.m. Regular Meeting with Redmond City Council - Redmond Council Chambers 3:00 p.m. COACT Meeting - COIL, Redmond Wednes&L July 14 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, July 19 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, July 21 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, July 26 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, Ju1X 28 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Wednesday, July 7, 2010 Page 3 of 6 Pages Monday, Au ug st 2 10:00 a.m. Board of Commissioners' Meeting 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) Wednesday, August 4 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, August 11 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Mondgy, August 16 10:00 a.m. Board of Commissioners' Meeting 12 noon Regular meeting with Department Directors 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, August 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, Au ug_st 23 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, August 25 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Monday, August 30 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Wednesday, July 7, 2010 Page 4 of 6 Pages Wednesday, September 1 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, Se ptember 2 10:00 a.m. Regular Update with the District Attorney 11:00 a.m. Regular Update with Community Development 1:30 p.m. Regular Update with the Road Department Monday, a tember 6 Most County offices will be closed to observe Labor Day Wednesday, September 8 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) ThursdaL 59ptember 9 7:00 a.m. Regular Meeting with Redmond City Council - Redmond Council Chambers 11:00 a.m. Regular Update with Health and Human Services 3:00 p.m. COACT Meeting - COIC, Redmond Wednesday, September 15 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, September 16 9:00 a.m. Regular Update with the County Clerk 10:00 a.m. Regular Update with Community Justice Monday, September 20 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Board of Commissioners' Business Meeting Agenda Wednesday, July 7, 2010 Page 5 of 6 Pages Wednesday, September 22 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Thursday, Se ptember 23 9:00 a.m. Regular Update with the Fair & Expo Manager 10:00 a.m. Regular Update with the Assessor 11:00 a.m. Regular Update with the Commission on Children & Families 2:00 p.m. Regular Update with the Sheriff Monday, September 27 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) Wednesday, September 29 10:00 a.m. Board of Commissioners' Meeting 1:30 p.m. Administrative Work Session - could include executive session(s) 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 Wednesday, July 7, 2010 Page 6 of 6 Pages G~vTes ~ a ✓2{ BOARD OF COMMISSIONERS' MEETING REQUEST TO SPEAK Agenda Item of Interest r,// /,9 - Z Date 7 - T - Z'n /d Name Address l ej-X6 /f 4o Phone #s _!~,y/ - k- 9S~' E-mail address "'o C-p- @ yjoq-A~ v . co,--., In Favor F~ Neutral/Undecided F] Opposed Submitting written documents as part of testimony? E3-'V-es F-] No JTE^a n U~ Ors 0 2~ BOARD OF COMMISSIONERS" MEETING REQUEST TO SPEAK Agenda Item of Interest C( ) - /0 - -4> Date e0 7 1 d Name Address 1fQ g~S r-~K ~C ~2 1 SC~c° ~"z ~i `7 `7 CI Phone #s S22 - SzN - V 1&'3_ E-mail address In Favor F~ Neutral/Undecided Submitting written documents as part of testimony? 1:1 Yes Opposed 91 No BY: rEIVED ~ July 2, 2010 Deschutes County Commissioners JUL 2 2010 Chairman Luke, Vice Chairman Ungar and Commissioner Baney, DELIVERIE BY: RE: CU -10 - 2 Appeal of Hearing's officer decision I want to thank all of the Commissioners for the work they have put forth on this appeal. Wanting a definition of "Room and Board Arrangements" has been difficult. Candice and I have been poring over documents from many sources to help bring some clarity to this issue. I would like to state in my findings that when "Room and Board Arrangements" were adopted by the State in the EFU zone, it was not to be more restrictive but to allow for more flexibility in the zone to accommodate more uses that would be complimentary to the use in EFU and Forest zones. The state recognizes that promoting activities that compliment farming and farming practices is good for the health of the farm and the community. What was born of the "Room and Board Arrangement" were fishing and hunting facilities that accommodate guests in existing dwellings aside from the defined "Guest Ranch". The stays were not limited by a minimum or maximum stay but were offering additional meals and other services that were not typical in a "Bed & Breakfast" while serving only 1 Breakfast meal. Also the owner is the occupant. The county should view the accommodations of horse related activities in the same light as recreational fishing and hunting. This would provide opportunities for people to bring their horses to enjoy Central Oregon hospitality while participating in horse activities at the property that would or could provide clinics, boarding and facilities that would promote the horse in a ranch/farm environment that is positive for rural Oregon farming. We have found that older riders really enjoy the accommodations of a lodge environment while being able to step outside and get on their horse and participate in the daily activities. Coming back to an evening BAR-B-Q and soak in the hot tub under the starry Central Oregon nights adds a nice finish to the day's activities. These arrangements will promote tourism in our community and add to the economic prosperity to all who have a stake in Central Oregon. I would like to bring to the attention of the Commissioners that our neighborhood is residential. Most parcels are small 5 to 7 acres with no farm operation.. Bed & Breakfasts have been approved and are operating throughout the county. The state has encouraged "Room and Board Arrangements" without overnight restrictions to promote recreational activities that are complimentary to the farming and ranching experience. The hearings officer found that we met the requirements to be able to have this type of facility with the exception of unmarring the room and Board arrangement from the Bed and Breakfast. I would like to point out a few of the documents that support my arguments: Wikipedia. Boarding House exhibit A "A boarding house is a house (often a family home) in which lodgers rent one or more rooms for one or more nights, and sometimes for extended periods of weeks, months or years. The common parts of the house are maintained and some services, such as laundry and cleaning may be supplied. They normally provide "Bed and Board", that is at least some meals as well as accommodations... Bed and Breakfast accommodations (B&B), which exist in many countries in the world... is a specialized form of a boarding house in which the guests or boarders normally stay only on a Bed & Breakfast basis and where long - stay residence is rare. As stated here, the B&B is a specialized form of boarding where the focus is on the lodging and meal and not the activities that would be part of a horse facility or fishing and hunting operation. Wikipedia. Single Room Occupancy exhibit B a single room occupancy(more commonly SRO, sometimes called single resident occupancy) is a multiple tenant building that houses one or two people in individual rooms (sometimes two rooms or two rooms with a bathroom or half bathroom) or the single room dwelling itself ...SRO room may include a kitchenette, bathroom ...SRO's is primarily rented as a permanent residence. In this definition of SRO occupancy, we see the long term nature of individual room occupancy. I believe the intent of the states "Room and Board Arrangement" is for a more focused activity occupancy and time frame. Wikipedia. What are Boarding Houses? exhibit C "Boarding houses have become a rare sight in the United States, but at one time they served roughly the same purpose as modern "Bed & Breakfast" establishments. At least one daily meal would be included... whether it be communal breakfast, lunch or dinner. In exchange for bed and meals, individual tenants in boarding houses might also be expected to share n the mainstream chores and other tasks assigned by the landlord or homeowner" As you can see, there are a myriad of differences between a modern day B&B and what can become of a "Room and Board Arrangement" Where the lodging although comfortable is incidental to the primary focus of the occupancy. MarketResearch.com Rooming and Boarding Houses in the U.S. Industry definition exhibit D "The Industry comprises establishments primarily engaged in operating rooming and boarding houses and similar facilities, such as fraternity houses, sorority houses, off campus dormitories, residential clubs and workers' camps. These establishments provide temporary or longer-term accommodation which, for the period of occupancy, may serve as a principle residence..." Agri-Business Council of Oregon. exhibit E Section 11: Legal consideration, licenses, permits & regulations. Page 27, page 29, page 31 & 32 Specifics on zoning for certain recreational uses. Hunting and fishing preserves: Private parks, playgrounds, hunting and fishing preserves and campgrounds are uses subject to local review in farm and forest zones... private seasonal accommodations for fishing and fee are also allowed subject to certain conditions see OAR 660.06.025 (4)(p) and(2)(w). Bed and Breakfast Establishments. B&B establishments are not specifically listed as an allowed use; however, two other uses are allowed which can authorize this type of use within existing dwellings. These provisions provide the most flexibility to farm/ranch owners to allow small-scale accommodations, especially related to hunting and fishing (horse activities (inserted)) in EFU zones. Room and Board arrangements for a maximum of 5 unrelated persons in an existing residence. ORS 215.283(2)(u) and home occupations may be authorized in an existing dwelling, employing only residents of the home. OAR 660.33.120, 660.33.130 and 660.06.025. For Oregon health... ORS 446.330 and OAR 333.29.0000 for lodging requirements... Washington County adopted this Ordinance No. 340, Exclusive Farm Use District (EFU) is amended to reflect the following: exhibit G 340.4.2 Permitted uses which are subject to Section 340.4.3: n. Room and Board arrangements, including a Bed and Breakfast facility, for a maximum of (5) unrelated persons in an existing dwelling... Clackamas County Zoning and Development Ordinances: File ZDO.224(exhibit F draft dated 3/22/2010) (exhibit H) General Definition Bed and Breakfast Residence provides overnight accommodations plus breakfast and for guests in an operator- or owner occupied dwelling... Department of Human Services, Public Health Division Division 170 exhibit 1 Bed and Breakfast OAR 333.170.0000 Definition - Bed and Breakfast facility means any establishment located in a structure designed for a single family residence and structures appurtenant thereto, regardless of whether the owner or operator of the establishment resides in any of the structures... From this compilation of definitions for both "Bed & Breakfast" and "Room and Board Arrangements" we can see that the differences, although can be on a parallel track, are significantly different. The most obvious being that a B&B is treated as a well defined commercial venture that does not necessarily include an owner occupied dwelling. On the other hand, a "Room and Board Arrangement" must be in a residence and operated by the owner of that residence. The criteria are not based on the length of stay but on the meals served, (more than just breakfast) owner occupied and the activities that will take place on the property. We can see that "Room and Board Arrangements" have been incorporated in EFU and Forest Lands to accommodate fishing and hunting; the use of horses brought onto the property by guests and to enjoy the many potential recreational experiences would satisfy the uses that the "Room and Board Arrangement" was intended. These uses did not have minimum or maximum lengths of occupancy because the intent was to incorporate the lodging experience with the activity that was specific to that particular stay. The benefit for this type of facilitation helps everyone in the County, by bringing and providing another type of tourism opportunity to Central Oregon. Who benefits? Those who operate Dining establishments, grocers, tack and clothing outlets, nightly entertainment, retailers, veterinarians, hay farmers, livestock breeders, fuel stations, realtors, etc. etc. etc. I would hope that this will provide you with the additional insight necessary to allow our "Room and Board Arrangement" Conditional Use without the minimum restrictions that was not placed in the State "Room and Board Arrangement" Statute ORS 215.283(2)(u). Terry & Candice Anderson 18540 Plainview Road Bend, Or 97701 Boarding house - Wikipedia, the free encyclopedia Boarding house From Wikipedia, the free encyclopedia A boarding house, is a house (often a family home) in which lodgers rent one or more rooms for one or more nights, and sometimes for extended periods of weeks, months and years. The common parts of the house are maintained, and some services, such as laundry and cleaning, may be supplied. They normally provide "bed and board", that is, at least some meals as well as accommodation. A "lodging house", also known in the United States as a "rooming house", may or may not offer meals. Lodgers legally only obtain a licence to use their rooms, and not exclusive possession, so the landlord retains the right of access. A fictional example is Sherlock Holmes's shared rooms at 221b Baker Street, of which the landlady Mrs Hudson provided some domestic service. Page 1 of 2 N Years ago boarders would typically share washing, breakfast and dining facilities; in recent years it has become common for each room to have its own washing and toilet facilities. Such boarding houses were often found in English seaside towns (for holidaymakers) and college towns (for students). It was not unusual for there to be one or two elderly long-term residents. Boarders can often arrange to stay bed-and-breakfast (bed and breakfast only), half-board (bed, breakfast and dinner only) or full-board (bed, breakfast, lunch and dinner). Especially for families on holiday with children, boarding (particularly on a full-board basis) was an inexpensive alternative and certainly much cheaper than staying in all but the cheapest hotels. In the United Kingdom, boarding houses were typically run by landladies, some of whom maintained draconian authority in their houses: the residents might not be allowed to remain on the premises during the daytime and could be subject to rigorous rules and regulations, stridently enforcedP] Bed and breakfast accommodation (B&B), which exists in many countries in the world (e.g. the UK, the USA, Canada, and Australia), is a specialised form of boarding house in which the guests or boarders normally stay only on a bed-and-breakfast basis, and where long-stay residence is rare. However some B&B accommodation is made available on a long-term basis to UK local authorities who are legally obliged to house persons and families for whom they have no social housing available. Some such boarding houses allow large groups with low incomes to share overcrowded rooms, or otherwise exploit people with problems rendering them vulnerable, such as those with irregular immigration status. Such a boarding-house may well cease to be attractive to short-term lodgers, and the residents may remain in unsatisfactory accommodation for long periods. Much old seaside accommodation is so used, since cheap flights have reduced demand for their original seasonal holiday use. Apart from the worldwide spread of the concept of the B&B, there are equivalents of the British boarding houses elsewhere in the world. For example, in Japan, minshuku are an almost exact equivalent although the normal arrangement would be the equivalent of the English half-board. In Hawaii, where the cost of living is high and incomes barely keep pace, it is common to take in lodgers (who are boarders in English terminology) that share the burden of the overall rent or mortgage payable. http://en.wikipedia.org/wiki/Boarding_jiouse 6/30/2010 Single room occupancy - Wikipedia, the free encyclopedia Single room occupancy From Wikipedia, the free encyclopedia A single room occupancy (more commonly SRO, sometimes called single resident occupancy) is a multiple tenant building that houses one or two people in individual rooms (sometimes two rooms, or two rooms with a bathroom or half bathroom), or to the single room dwelling itself. SRO tenants typically share bathrooms and / or kitchens, while some SRO rooms may include kitchenettes, bathrooms, or half-baths. Although many are former hotels, SROs are primarily rented as a permanent residence. Contents ■ 1 History ■ 2 Uses ■ 3 Conditions ■ 4 SROs today ■ 5 See also ■ 6 References ■ 7 Further reading ■ 8 External links History Uses Page 1 of 3 An abandoned Single room hotel in San Francisco. The term originated in New York City, probably in the 1930s (the Oxford English Dictionary provides an earliest citation of 1941), but the institutions date back at least fifty years before the nickname was applied to them. SROs exist in many American cities, and are most common in larger cities. The terms single room occupancy and SRO are not used in British English. Related British terms include house in multiple occupation, hostel, bedsit or boarding house. In many cases, the buildings themselves were formerly hotels in or near a city's central business district. Others are former single family homes (cftaoonneede4. Many of these buildings were built in the late 19th and early 20th centuries, and reflect a high order of architectural style and c SROs are a viable housing option for poor people, students, single tenants, seasonal or other traveling workers, empty nester widows / widowers, or others who do not desire or require large dwellings or private domestic appliances. The smaller size and limited amenities in SROs generally makes them a -http://en.wildpedia.org/wild/Single_room_occupancy 6/30/2010 What are Boarding Houses? 1~ - Page 1 of 2 X H,,3 ITC :,,seat;; What are Boarding Houses? Ads by Google 55 Apartments for Rent Boardina House Houses Homes for Rent Flat Landlord Rent Ads by Google Ren Rentals Apartment Rent Short Term Rent Rooms PTT Apartment Rent in China Related wiseGEEK articles What is a Building Shell? What Is a Rooming House? What is the Kaleva Bottle House? What are Row Houses? What is a Subdivision? What Should I Consider When Looking for Jobs Abroad? 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Register Today www.MyNewPlace.com Boarding houses have become a rare sight in the United States, but at one time they served roughly the same purpose as modem 'bed and breakfast' establishments. At least one daily meal would be included in the boarders' rent, whether it be a communal breakfast, lunch or dinner. In exchange for a bed and meals, individual tenants in boarding houses might also be expected to share in the maintenance chores and other tasks assigned by the landlord or homeowner. Ads by Google Courtyard by Marriott Courtyard Hotels- Its a New StayO Free W R Plush Bedc6ng and More. Mardolt. Homes For Rent And To &_K Rind more sources/optbrts for Homes For Rent And To Buy www.mb-oawleroom For itinerant workers and travelers, boarding houses provide an inexpensive alternative to hotels or shortderm apartment rentals. The rooms of many boarding houses are spacious enough for a single person's needs, even if bathroom facilities may have to be shared or privacy is limited. Some boarding houses now provide private bathrooms for boarders and better insulation between rooms for a sense of privacy. The beds In boarding houses may have once served as the beds for the owner's family members, so they should be reasonably comfortable and dean. Economic need quite often drives owners of large houses to consider turning them into boarding houses. In his semi-autobiographical novel Look Homeward, Angel, author Thomas Wolfe describes his experiences growing up in a boarding house operated by his mother. Many of the boarders were colorful characters, making for an interesting mixture of cultures and backgrounds. During the height of the boarding house era, tenants tended to stay for months or even years, becoming part of an extended Yamily' of sorts. As boarders moved on to other towns, others moved in to take their place. A general shift in the working class of American society gradually spelled the end for many boarding houses. Fever single workers felt secure living communally with near-strangers. Those who could afford small apartments or find roommates to share expenses no longer felt the need to stay in boarding houses. Owners of many boarding houses became disenchanted with their roles as both landlords and cooks. It became more tempting to convert their large homes into apartments or limit their use to abed and breakfast' arrangement .Subscribe to vduGEEK Boarding houses can still be found in the United States, although many have became closer to rooming houses or youth hostels without the communal meals. The practice of boarding houses is SS a more prevalent overseas, particularly in conjunction with what Americans call private schools and Twitter Europeans call public schools. These boarding houses provide students with a bed and complete meals throughout the school tern. Ads by Google Rent a Loft Apartment Bay Area Rent Apartment Rent Out Your Apartment http://www.wisegeek.conVwhat-are-boarding-houses.htm 6/30/2010 Rooming and Boarding Houses in the US (1332281) - Print Friendly MarketResearch.com US: 800.298.5699 Intl: +1.240.747.3093 Fax: 240.747.3004 Rooming and Boarding Houses in the US IBISWorld - 7124/2006 - 23 Pages - ID: IBSS7332281 URL: http://www.marketresearch.com/product/display asp?produc id=1332281 online Download - $715.00. Global Site License - $1,072.50 Page 1 of 4 Return to Report I Print Abstract industry Definition The industry comprises establishments primarily engaged in operating rooming and boarding houses and similar facilities. such as fraternity houses, sorority houses, off-campus dormitories, residential dubs and workers' camps. These establishments provide temporary or longer-temi accommodation which, for the period of occupancy, may serve as a principal residence. These establishments also may provide complementary services, such as housekeeping, meals and laundry services. In more detail, a rooming house is any building in which renters occupy single rooms and share kitchens, bathrooms and common areas. The building may be a converted single-family house, a converted hotel or hostel or a purpose-built structure. Rooming houses may have as little as three rooms to nett to more than a hundred. Boarding houses offer tenants food and other services in addition to accommodation. Major tenants of rooming and boarding houses include: people on social security, people on minimum wage jobs, new immigrants, farm workers, refugees, elderly on low income, the disabled, students and people with alcohol or other substance dependency or mental health problems. The Key Statistics chapter provides the key indicators for the industry for at least the last three years. The statistics included are industry revenue, industry gross product, employment, establishments, exports, imports, domestic demand and total wages. The Market Characteristics chapter covers the following: Market Size, Linkages, Demand Determinants, Domestic and Inemational Markets, Basis of Competition and Life Cycle. The Market Size section gives the size of the domestic market as well as the size of the export market. The Linkages section lists the industry's major supplier and major customer industries. The Demand Determinants section lists the key factors which are likely to cause demand to rise or fall. The Domestic and Intemational Markets section defines the market for the products and services of the industry. This section provides the size of the domestic market and the proportion accounted for by imports and exports and trends in the levels of imports and exports. The Basis of Competition section outlines the key types of competition between firms within the industry as well as highlighting competition from substitute products in attemative industries. The Life Cycle section provides an analysis of which stage of development the industry is at The Segmentation chapter covers the following: Products and Service Segmentation, Major Market Segments, Industry Concentration and Geographic Spread. The Products and Service Segmentation section details the key products and/or services provided by this Industry, highlighting the most important where possible to demonstrate which have a more significant influence over industry results as a whole. The Major Market Segments section details the key client industries and/or groups as well as giving an indication as to which of these are the most important to the industry. The Industry Concentration section provides an indicator of how much industry revenue is accounted for by the top four players. The httn: //www.marketmsearch.com/t)roduct/print/default.asp?SID=91104581-482721646-430... 6/30/2010 Campgrounds: In both farm and forest zones, "campgrounds" are defined as "an area devoted to overnight temporary use for vacation, recreational, or emergency purposes, but not for residential purposes. -A camping site may be occupied by a tent, travel trailer, recreational vehicle or a limited number of yurts. Campgrounds authorized by this rule shall not include intensively developed recreational uses such as swimming pools, tennis courts, retail stores or gas stations." Separate sewer, water or electric service hook-ups shall not be provided to individual campsites except that electrical service may be provided to yurts [See OAR 660-06-025(4)(e) and 660-33-130(19); also see OAR Division 333-31-0000 to determine the need to register with the Health Division and county requirements.] Bed & Breakfast Establishments: B&B establishments are not specifically listed as an allowed use; however, two other uses are allowed which can authorize this type of use within existing dwellings. These provisions provide the most flexibility to farm/ianch owners to allow small-scale accommodations, especially related to hunting and fishing in EFU zones. Room and board arrangements for a maximum of five unrelated persons in existing residents [ORS 215.283(2)a ] and home occupations may be authorized in an existing dwelling, employing only residents of the home [OAR 660-33-120, 660-33-130 and 660-06-025]. For Oregon Health Division requirements on Bed & Breakfast food service rules see ORS 324 and OAR 333-17-000, and ORS 446.330 and OAR 333-29-0000 for lodging requirements. Agri-Tourism Workbook 32 Agri-Business Council of Oregon lA 5cction 11: Legal Con5iderations, Licenses, rKegulations Agri-Tourism Workbook 27 Agri-Business Council of Oregon SECTION II LEGAL CONSIDERATIONS LICENSES, PERMITS, AND REGULATIONS ZONING - WHAT IS AND IS NOT ALLOWED This information is provided by the Department of Land Conservation and Development The people of Oregon have developed laws to ensure that agricultural lands will remain in farm use. However, there are some nonfarm activities besides farm use that may be allowed in farm zones. The state land use laws provide the parameters for farm land with each county given the authority to more fully define and clarify ag lands and their use at the local level, consistent with state law. Agricultural lands shall be preserved and maintained for farm use, consistent with existing and future needs for agricultural products, forest and open space and with the state's agricultural land use policy expressed in ORS 215.243 and 215.700. State law provides for the preservation and maintained use of farm land in Oregon. Statewide Planning Goal 3, "Agricultural Lands," requires all agricultural lands to be inventoried and preserved by adopting exclusive farmuse zones consistent with ORS Chapter 215. Additional limitations are applied to high-value farmlands. Over the years a number of "non-farm" uses have been listed in the law and rules implementing Goal 3. Every application for a non-farm use will be decided on a case-by-case basis by the county, based on the facts presented to it, keeping in mind that the overriding and primary purpose of Exclusive Farm Use zones is to promote and sustain commercial farming. PERIVIPTTED NON-FARM USES ON EFU LAND - Contact your county planning department prior to siting or building any structure or starting any non-farm use activity. Non-farm uses require prior approval by the respective county. Certain non-farm uses are allowed, and their approval standards are incorporated into local zoning regulations; additional approval standards may apply to "high value farmland." Technical variations exist between counties; so contact your county planning department or DLCD (373-0050) for details. The following types of uses are generally allowed in exclusive farm use zones: • Public or private schools • Forest product propagation & harvesting • Dwelling for farm use • Farm buildings and Farm Stands • Mineral exploration & mining • Farm-worker housing • Churches and Cemeteries • Public Utility Service • Geothermal exploration/production • Community Centers • .Land based application of reclaimed water for farm use • Siting for solid waste disposal • Creation/restoration of wetlands • Hunting & fishing preserves • Golf courses • Winery • Playgrounds or campgrounds • Boarding, breeding & training of greyhounds • Dog kennels r • Bed & Breakfast (5 guest limit) in existing residences • Commercial activities in conjunction with farm use • Small Scale crop processing facility Agri-Tourism Workbook 29 Agri-Business Council of Oregon campground under ORS 215.283 (2)(c). (4) Food services shall be incidental to the operation of the guest ranch and shall be provided only for the guests of the guest ranch. The cost of meals provided to the guests shall be included as part of the fee to visit or stay at the guest ranch. The sale of individual meals to persons who are not guests of the guest ranch shall not be allowed. (5) Approval of a guest ranch shall be subject to the provisions of ORS 215.296 (1) and (2) and other approval or siting standards of the county. (6) As used in this section: (a) 'Eastern Oregon' shall have the meaning provided in ORS 321.405. (b) 'Guest ranch' means a facility for overnight lodging incidental and accessory to an existing livestock operation that qualifies as a farm use under ORS 215.203. Guest ranch facilities may include a lodge, bunkhouse or cottage accommodations as well as passive recreational activities and food services as set forth in subsections (2) to (4) of this section. (c) 'Livestock' means cattle, sheep, horses and bison. SECTION 3. Section 5, chapter 728, Oregon Laws 1997, is amended to read: Sec. 5. Chapter 728, Oregon Laws 1997, is repealed December 31, 2005. SECTION 4. The Department of Land Conservation and Development, the State Department of Agriculture and the Economic and Community Development Department shall jointly submit a written report to the Seventy-third Legislative Assembly by January 1, 2005. SECTION 5. This 2001 Act takes effect on December 31, 2001. Specifics on Zoning for Certain Recreational Uses Farm/Game and Exotic Animal Ranches: Farm use, in part, includes the current employment of land for the "primary purpose of obtaining a profit in money. . by feeding, breeding, management and sale of, or the production of, livestock ...or animal husbandry or any combination thereof." (ORS 2 15.203) Thus, the raising of any kind of animal not otherwise prohibited by state or federal law is a farm use under Oregon law and allowed in farm and forest zones. Some counties apply additional conditions to "feedlots" and the Oregon Department of Agriculture may require a Confined Animal Feeding Permit in certain types of operations. Produce Stands as amended by 2001 Legislature: Farm stands may be approved in a farm zone if (a) The structures are designed and used for sale of farm crops and livestock grown on the farm[s] operation, or grown on the farm operation and other farm operations in the local agricultural area, including the sale of retail incidental items and fee-based activity to promote the sale of farm crops or livestock sold at the farm stand, if the annual sales of the incidental items and fees from promotional activity do not make up [ne] more than 25% of the total annual sales of the farm stand; and, (b) The farm stand does not include structures designed for occupancy as a residence or for activities other than the sale of farm crops and livestock, and does not include structures for banquets, public gatherings or public entertainment. [See ORS 215.283(1)(r) and ORS 660-33-130(23)]. Hunting and Fishing Preserves: Private parks, playgrounds, hunting and fishing preserves, and campgrounds are uses subject to local review in farm and forest zones. They are not allowed on high value farmland in EFU zones. However, this restriction does not prohibit or limit a farm/ranch owner from inviting people onto their land and charging a fee to hunt or fish. In farm zones, the limitation on hunting and fishing preserves on high value farmland, or the need to get approval for such preserves on non-high value lands, only applies to those activities that are clearly separate businesses or . clubs established to allow hunting or fishing for a fee that is not incidental to the primary farm use of the land (see OAR 660-33-120). In forest zones, private hunting and fishing operations `without lodging accommodations" are allowed outright (see OAR 660-06-025(3)(f)). Private seasonal accommodations for fishing and fee hunting are also allowed subject to certain conditions (see OAR 660-06-025(4)(p) and (4xw). Agri-Tourism Workbook 31 Agri-Business Council of Oregon Ordinance No. 676 Exhibit 1 August 29, 2006 Page 2 of 2 H. Onsite filming and activities accessory to onsite filming for more than forty-five (45) days - See ORS 215.306 for standards. 1. Operations for the extraction and bottling of water. J. Parking log trucks [no more than seven (7) log trucks) - See ORS 215.311 for standards. K Parks - Section 430-97. Private parks are not permitted on high-value farmland. Public parks include only the uses specified under OAR 660-034-0035 or OAR 660-0340040, if applicable. 1. Propagation, cultivation, maintenance and harvesting of aquatic species that are not under the jurisdiction of the State Fish and Wildlife Commission ardor insect species. Insect species shall not include any species under quarantine by the State Department of Agriculture or the United States Department of Agriculture. M. Residential home as defined in Section 106-179, in an existing dwelling. This use is exempt from Section 430-53 (Group Care Facilities). A waiver of the right to remonstrate against commonly accepted farm or forest practices shall be recorded for this use. 6~ Room and board arrangements, including a bed and breakfast facility, for a maximum of five (5) unrelated persons in an existing dwelling. A waiver of the right to remonstrate against commonly accepted farm or forest practices shall be recorded for this use. 0. Solid'Waste Disposal Site - Section 430-127.1. This use is not permitted on high-value farmland. P. Stockpiling of aggregate, sand and gravel for road maintenance purposes. For required standards see Section 430-132. Q. Temporary Use - Section 430-135.2 A. Applications to renew a temporary use do not have to address Section 340-4.3 if that section was addressed in a prior application. A waiver of the right to remonstrate against commonly accepted farm or forest practices shall be recorded for this use. R. State or Regional Park uses listed in a County-approved Master Plan. See Section 383, State and Regional Park Overlay District. S. Community centers - owned by a governmental agency or a nonprofit community organization and operated primarily by and for residents of the local rural community. abcdef - Proposed additions abedef Proposed deletions WASHINGTON COUNTY OREGON September 8, 2006 To: Citizen Participation Organizations and Interested Parties From: Brent Curtis, Planning Manager Department of Land Use and Transportation Subject: PROPOSED ORDINANCE NO. 676 Enclosed for your information is a copy of proposed Ordinance No. 676. Listed below is a description of the ordinance, hearing dates, and other relevant information. If you have any questions about the ordinance, or if you would like additional information, please contact the Planning Division. Ordinance Purpose and Summary Ordinance No. 676 makes conforming amendments to the Community Development Code Element of the Comprehensive Plan relating to land use legislation adopted in 2005. The amendments add clarifying language related to uses allowed in an exclusive farm use zone (EFU and AF-20), and adds language to the special use standards for manufactured dwelling parks that would allow recreational vehicles to be used as residences if certain conditions are met. Who Is Affected Residents in rural and urban unincorporated areas of Washington County are potentially affected. What Land is Affected Urban unincorporated land (outside city limits) and land outside the Urban Growth Boundary (UGB). Key Provisions ➢ Amends Sections 340 (Exclusive Farm Use) and 344 (Agriculture and Forestry) of the Community Development Code to add clarifying language related to uses allowed in an exclusive farm use zone. Amends Section 430-77 (SPECIAL USE STANDARDS for Manufactured Dwelling Parks) of the Community Development Code to add language to the special use standards for manufactured dwelling parks that would allow recreational vehicles to be used as residences if certain conditions are met. Initial Public Hearings Time and Place Planning Commission Board of County Commissioners 7:30 pm 6:30 pm October 18, 2006 October 24, 2006 Hearings will be held in the Shirley Huffman Auditorium in the Public Services Building, 155 N. 1st Avenue, Hillsboro, Oregon. rYI11'6I7 14 CLACKAMAS COUNTY ZONING AND DEVELOPMENT ORDINANCE File ZDO-224 Proposed Zoning and Development Ordinance Amendment Draft Dated 3/2212010 Text to be added is underlined. Text to be deleted is stfuek tl*eu . SECTION 200 GENERAL, DEFINITIONS (X9) 201 GENERAL 201.01 PURPOSE The following terms are hereby defined for the purpose of clarifying the provisions of this Ordinance. 201.02 INTERPRETATIONS When not inconsistent with the. context, all words used in the present tense include the future. The singular number includes the plural and the plural, the singular. The word "lot" includes parcel and plot.. The word "structure" includes building. The word "occupy" includes premises designed or intended to be occupied. The word "use" includes designed or intended to be used. The word "person" may mean "persons," "association," "firm," "copartnership," or "corporation." The word "shall" is always mandatory. All other words shall have the following respective meanings: 202 DEFINITIONS ACCESSORY BUILDING OR USE: A subordinate building or use, the use of which is clearly incidental to that of the main building or use on the same lot. ACCESSWAY: A public right-of-way, a portion of which is hard surfaced, for use by pedestrians and bicyclists providing a direct route where public roads require significant out of direction travel. (9/8/94) ACCESS DRIVE: A private way, with a travel surface generally no more than twelve (12) ft. in width, created by deed or easement to provide vehicular ingress to, or egress from not more than two (2) loots or parcels. (5/3/01) ADJOINING: Contiguous or abutting exclusive of street width. It shall include the terms adjacent, abutting or contiguous. 706-1 Ad"fed W094AU Text Revision CLACKAMAS COUNTY ZONING AND DEVELOPMENT ORDINANCE provides rooms for rent on a daily basis to the public and which includes a breakfast meal as part of the cost of the room Bed and breakfast establishments do not include other similar uses, such as motels, health or limited care facilities, boarding houses, group quarters, hostels, or rescue missions. All bed and breakfast establishments require tourist facility licensing by the appropriate agency. Bed and breakfast residences and inns, as defined below, must also satisfy the State Health Division requirements. Three levels of bed and breakfast establishments are as follows: (3/24/05) "Bed and Breakfast Homestay" provides overnight accommodations plus breakfast in an owner-occupied dwelling that provides 1-2 guest rooms for occasional bed and breakfast guests, not exceeding 5 guests at one time. Primary use of the dwelling remains as a dwelling, not as a lodging establishment. All reservations are made in advance. Income derived from bed and breakfast activity does not generally represent a primary source of income. Bed and breakfast homestays are major home occupations, subject to Section 822. (3/24/05) "Bed and Breakfast Residence" provides overnight accommodations plus breakfast and occasional family-style meals for guests, in an operator- or owner- occupied dwelling that provides up to 5 rooms on an occasional or regular basis. Income derived from the bed and breakfast activity may represent a primary source of income. Bed and breakfast residences are subject to Section 832, and all requirements of the underlying district. (3/24/05) "Bed and Breakfast Inn" provides accommodations plus breakfast on a daily or weekly basis in an operator- or owner-occupied dwelling that is primarily used for this purpose. This use is operated as a commercial enterprise, encourages direct bookings from the public, and is intended to provide a major source of income to the proprietors. This level includes inns that operate restaurants offering meals to the general public as well as to overnight guests. Bed and breakfast inns are subject to Section 832 and all requirements of the underlying district. (3/24/05) BICYCLE RACK: An apparatus designed to support the central frame of a bicycle and allow locking of both wheels, without the removal of wheels. (3/17/04) BIKEWAY: A paved facility provided for use by cyclists. There are four types of bikeways. (9/8/94) Shared Roadway: A type of bikeway where motorists and cyclists occupy the same roadway area. Shared roadways are allowed on neighborhood streets and on rural roads and highways. (3/17/04) Shoulder Bikeway: A bikeway which accommodates cyclists on paved roadway shoulder. (9/8/94) Bike Lane: A section of roadway designated for exclusive bicycle use. (9/8/94) 706-4 Adepted F3M Last Text Revision Public Health-333-170 £x1-11A31'7' Pagel of 5 alpha links I numerical links I tulledns I tllino resources I n aL W dinon 1 a bMA ors 1 search oars I buy oan; I ffi The Oregon Administrative Rules contain OARs filed through May 14, 2010 DEPARTMENT OF HUMAN SERVICES, PUBLIC HEALTH DIVISION DIVISION 170 BED AND BREAKFAST FACILITIES 333-170-0000 Definitions As used in OAR 333-170-0000 to and including 333-170-0130: (1) "Appurtenant Structure" means a building that belongs to, is accessory or incident to, adjacent, appended or annexed to a single family residence. The single family residence and appurtenant structure must be on the same tax lot. Appurtenant structure includes but is not limited to a carnage house, garage, livery, pool or cabana building, guest cottage, bunkhouse, or similar building converted for human occupancy. (2) "Bed and Breakfast Facility" means any establishment located in a structure designed for a single family residence and structures appurtenant thereto, regardless of whether the owner or operator of the establishment resides in any of the structures, which: (a) Has more than two rooms for rent on a daily basis to the public; (b) Offers a breakfast meal as part of the cost of the room; (c) Serves one breakfast meal a day to guests, staff and owners, only. (3) "Breakfast Meal" is the meal served to guests during the a.m. or morning hours each day. (4). "Designated Employees' Restroom" means toilet room with handwashing lavatory accessible to employees only, during breakfast meal preparation and service. (5) "Guests' Restroom" means toilet room located in the area of the guest rooms. Stat. Auth.: ORS 624.100 Stats. Implemented: ORS 624.100 Hist.: HD 6-1988, f. & cert. cf. 4-4-88; HD 23-1988(Temp), f. & cert. cf. 9-23-88; HD 2-1989, f. & cert. cf. 1-31-89; HD 2-1992, f. 3-24-92, cert. ef. 3-30-92 333-170-0010 Application of Rules (1) Except as otherwise set forth in ORS 624.100 and these rules, Bed and Breakfast Facilities shall meet the applicable requirements in OAR 333-150-0000 of the Oregon Food Sanitation Rules. (2) If more than nine bedrooms or accommodations for 19 or more persons are available on a daily basis, commercial grade http://arcweb.sos.state.or.us/hdes/OARs 300/OAR 333/333_170.html 6/30/2010 Oregon Administrative Rules Page 1 of 1 Peter Gutowsky From: Tammy Baney Sent: Tuesday, July 06, 2010 3:28 PM To: 'DAVID INGRAHAM' Cc: Peter Gutowsky Subject: RE: Aspen Lakes Resort Thank you Dave and Mary! Please know that I have read your comments and your email has been forwarded for inclusion in the public record. In service to our community- 7-t-UnYY)JL Tammy Baney Deschutes County Board of Commissioners O 541 388-6567 1 F 541 385-3202 1 1300 NW Wall Street, Suite 200 Bend, OR 97701 From: DAVID INGRAHAM [mailto:ding@gci.net] Sent: Tuesday, July 06, 2010 2:49 PM To: Board Cc: matt@aspenlakes.com Subject: Aspen Lakes Resort Dear Board Members, My wife Mary and I are residents at Aspen Lakes. We have had a home at the golf course for over 6 years. We are writing in support of the Cyrus family's request for Resort status. We do not see this resort as a threat to our lifestyle as some have suggested. Far from it, we believe it will enhance our property value and add to the wonderful amenities that already exist at Appen Lakes. It would also provide a much needed boost to our local economy. The added jobs from construction and maintenence of a destination resort is the exact kind of elixir our current economy needs. Sisters has not been immune to the economic downturn and it is frustrating to watch business after business close their doors. If there is a business that has the potential to expand the economic base in the Sisters area we should be doing everything we can to support such an endeavor. The Cyrus family has already demonstrated that they are sensitiv e to the enviornment by building an Audibon designated golf course and the grounds and facilities at Aspen Lakes are beautiful. Mary and 1 have no doubt that a destination resort would be built with the same thoughtful care. Dave and Mary Ingraham 7/6/2010 ORE NP July 6, 2010 Deschutes County Commission 1300 NW Wall St. Bend, OR 97701 Re: Ordinances 2010-24 and 2010-25 Dear Commissioners: I have been informed that the Board is considering the adoption of ordinances which may remove destination resort overlay zoning from a number of properties in Deschutes County. I write to urge the Board to not alter its destination resort maps at this time, and ask the Board to consider the applicability of Measure 49 when rendering its decision. As the Board knows, Measure 49 provides property owners with a cause of action against a county government if the county adopts a new land use regulation which limits or prohibits a currently authorized residential use of private real property. I believe that Measure 49 applies to the ordinances currently before the Board. In other words, I believe that a court interpreting Measure 49 would hold that the County is obligated to either 1) compensate a property owner for a reduction in the fair market value of their property attributed to the removal of the destination resort overlay, or 2) waive enforcement of that regulation to allow the property owner to site the resort. The State's Legislative Counsel's Office concurs with this interpretation of Measure 49. I realize that Deschutes County Counsel does not believe that the adoption of the aforementioned ordinances is subject to Measure 49. This appears to be a minority view, although it is certainly plausible. At this point, I do not believe that any Oregon court has resolved this issue. I fail to understand why Deschutes County would choose to be the "guinea pig" for such a test case. Given the lack of current demand for new destination resorts, coupled with the Oregon legislature's persistent meddling in the issue, there seems to be no immediate need to impose further limitations on Deschutes County property owners at this time. I hope that the Board will reject the two proposed ordinances at this time. Ve T : ly urs, r j David J. unnicutt President Mailing Address: P.O. Box 230637 • Tigard, OR 97281-0637 Street Address: 11735 S. W. Queen Elizabeth Street, Suite 101 • King City, OR 97224 (503) 620-0258 -FAX(503) 639-6891 • website: www.oia.org Page 1 of 2 Peter Gutowsky From: Nunzie [nunzie@pacifier.com] Sent: Tuesday, July 06, 2010 3:43 PM To: Tammy Baney; Alan Unger; Dennis Luke Cc: Nick Lelack; Senator Dingfelder; Peter Gutowsky Subject: Ord 2010-0024 DR Remapping Attachments: Exhibit_C.pdf; lease_001.pdf; lease_002.pdf; Exhibit _A.pdf; Exhibit_B.pdf; ATT312060.htm Dcar Deschutes County Commissioners: Please enter the following into the public record on DR remapping ordinance 2010-0024, 2010-023, 2010-001, 2010- 002. http://www.deschutes.org/boardCalendar/docs/3159/Hearinv- Ordinance _025_-_Resort _Man tp'ng.pdf The ordinance language is in pages 4-8 of the link above. Attached is State of Oregon Department of State Lands lease #33991 also known as Thornburgh Lease. It is emailed here in 5 parts. Lease _001 is part of the Amendment to Special Use Lease-33991 (30pgs) , Lease-002 (1 Opgs) , Exhibit "C" (2pgs), Exhibit "A" (I page), Exhibit "B" (lpg map). Note the 240 acres of inlieu parcels are now part of the state's lease for a total of 400 acres which has been assigned to Agnes Delashmutt, owner of 1 of the parcels that is part of the proposed Thornburgh Destination Resort. The State of Oregon lands currently are exempt from paying Deschtues County property taxes because they are public lands and public lands are non assessed for property taxes. This can be verified by searching the assessment records on Deschutes County's Dial web search: littp://www.co.deschutes or.us/'ndex.cfm?objectld. 836F545E-BDBD-57C 1-91 EC7EC87DBB_ D7EA select Assessment Information select Map and Taxlot Number enter each of the following individually for each parcel's information which will show that each of these 400 acres under state ownership does not contribute Deschutes County property taxes: Map and Taxlot Numbers: 1512000005300 (160 acres) , 1512000005200 (40 acres) , 1512000005101 (40 acres), 1512000005102 (40 acres), 1512000005103 (80 acres), 15 1 2000005 1 04 (40 acres) Your ordinance 2010-0024 would allow public lands to be eligible to be mapped for resort development. The six parcels above together with the 80 acre parcel owned by Deschutes County (Map and Taxlot Number- 1 5 1 2000008200) would all be eligible under your proposed ordinance. Currently Deschutes County does not collect property taxes on public land. So what economic benefit is there to Deschutes County to allow these lands to be mapped for it resort without transfer to private ownership? I would argue there is none! The very language that you are striking from your ordinance is what would generate economic dollars into Deschutes County coffers: namely: property taxes owed Deschutes County when a parcel moves from the public into private hands, and an application fee process to transfer these lands which would benefit your Community Development Department with greatly needed monies. Why in these challenging times are you taking this approach? Isn't the point of Goal 8 resorts to be economic generators for the community'?? So why are you axing a process that would generate tax dollars and fees for our community? If the state land is leased and not transferred to private ownership, there would be no economic benefit of taxable revenue to Deschutes County. Your ordinance would allow for no transfer of ownership in that the state lands could be eligible to be mapped but your ordinance as written does not require the lands to be transferred into private ownership. This could require additional tracking of a destination resort by your CDD staff at taxpayer expense, for instance: what is developed where and on whose land?; what is mitigated for where and on whose land?; and in whose name is a lease held? 7/6/2010 Page 2 of 2 In the existing case of the Thornburgh lease, DSL has identified a lease value for it's lands, and incidentally it has already found a resort to these these lands to... all to the exclusion of Deschutes County - so how does our rural Deschutes County benefit? I would argue that the lease monies are being collected by the State of Oregon, not by Deschutes County! I highly encourage Deschutes County to keep the stricken-thru language 23.84.030 Policies 3. c and relabel this language as 23.84.031) 3. c. 10 "Federal lands not otherwise excluded under these policies shall not be mapped with the DR overlay zone. Federal land not otherwise excluded that becomes privately owned through land exchanges or other federal disposition can be considered for destination resort siting consistent with these policies and mapped as available for destination resort development." Maintaining this language in your ordinance will encourage resorts to be sited he-iv to land where property t!Xec CIn 1?enet;t the !(),C111 1 would like to reiterate my testimony of 6/30/10 and to encourage Deschutes County to slow down and not to rush to create remapping criteria. Wait until the State DR workgroup has finished it's review of Destination Resorts. You are sending your staff to Salem for meetings on the very topic you are trying to pass local legislation. I think this is a huge waste of taxpayer money. Just as you delayed remapping for Measure 49, I encourage you to delay establishing remapping processes and criteria until the State has a clear direction for the future of Goal 8 resorts. Sincerely, Nunzie Gould 19845 JW Brown Rd Bend, OR 97701 541-420-3325 This is G~J.S E S C~ w a { Deschutes County Board of Commissioner,. W 1300 NW Wall St., Suite 200, Bend, OR 97701-1960 (541) 388-6570 - Fax (541) 385-3202 - www.deschutes.oq, AGENDA REQUEST & STAFF REPORT For Board Business Meeting of June 30, 2010 Please see directions./or completing this document on the next page. DATE: June 11, 2010. FROM: Peter Gutowsky Community Development Department 385-1709 TITLE OF AGENDA ITEM: A public hearing on Ordinance Nos. 2010-024, amending Title 23, the Deschutes County Comprehensive Plan to adopt remapping goals and policies, and 2010-025, adding a chapter to the Deschutes County Code Title 22, Deschutes County Development Procedures which will adopt Destination Resort Map Amendment Procedures. PUBLIC HEARING ON THIS DATE? Yes. BACKGROUND AND POLICY IMPLICATIONS: Initiated by staff and further modified by the Deschutes County Planning Commission, Ordinances 1` os. 2010-024 and 2010-025 create a process and criteria the County will follow to change its destination resort map. The two ordinances: • List clear and objective mapping criteria for areas that are ineligible for siting destination resorts, • List clear and objective mapping criteria for areas that are eligible for siting destination resorts; & • Describe the process for amending Deschutes County's Destination Resort Map. FISCAL IMPLICATIONS: None RECOMMENDATION & ACTION REQUESTED: First reading by Title only, Ordinance Nos. 2010-024 and 2010-025, Exhibits A and B. ATTENDANCE: Peter Gutowsky and Legal Counsel DISTRIBUTION OF DOCUMENTS: Peter Gutowsky, CDD. REVIEWED LEGAL COUNSEL BEFORE THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON An Ordinance Amending Deschutes County Code Chapter 23.84, Adopting Destination Resort Remapping Comprehensive Plan Goals and Policies, and Declaring an Emergency. * ORDINANCE NO. 2010-024 WHEREAS, the Board of County Commissioners ("Board") directed County staff to initiate amendments to Deschutes County Code ("DCC") DCC Chapter 23.84, Destination Resorts, in order to allow for amending the County Comprehensive Plan Map regarding properties eligible for the destination resort designation; and WHEREAS, after notice was given in accordance with applicable law, public hearings were held on November 19, 2009, and on December 2, 2009 before the Deschutes County Planning Commission and, c:n December 2, 2009, the Planning Commission recommended approval of the Comprehensive Plan amendments; and WHEREAS, on February 25, 2010 the Planning Commission forwarded to the Board additional recommendations for amendments to DCC Chapter 23.84; and WHEREAS, the Board held duly noticed public hearings on January 20, March 1, April 5, and April 19, 2010 on Ordinance 2010-001, the ordinance that included the amendments to DCC Chapter 23.84, and Ordinance 2010-002, the ordinance that added DCC Chapter 22.23, the procedures for amending the County Comprehensive Plan map; WHEREAS, on June 7, 2010, the Board amended Ordinance 2010-002, conducted the first and secon3 reading by title only of Ordinances 2010-001 and 2010-002, and adopted both ordinances declaring ao emergency; and WHEREAS, on June 9, the Board determined that the adoption of Ordinance 2010-002 was not done ill accordance with ORS 203.045(6) because the amendment to Ordinance 2010-002 adopted on June 7, 2010 was not included in the ordinance filed with the Board Clerk on June 1, 2010 or read in full by the Board, thereby rendering the ordinance ineffective; and WHEREAS, on June 9, 2010, the Board repealed Ordinances 2010-001 and 2010-002 and scheduled i public hearing on new versions of both ordinances for June 30, 2010 at 10:00 am; and WHEREAS, this ordinance replaces Ordinance 2010-001 with additional amendments to DCC 23.84; and WHEREAS, the Board of County Commissioners considered this matter after a duly noticed publi : hearing on June 30, 2010 and concluded that the public will benefit from changes to the land use regulations, and WHEREAS, in order to be able to provide direct public notice utilizing the county tax statement mailin; ; in October, 2010 the Board finds it in the public interest to adopt this ordinance by emergency; now, therefore, PAGE 1 OF 2 - ORDINANCE NO. 2010-024 THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDADIS as follows: Section 1. AMENDMENT. DCC Chapter 23.84, Destination Resorts, is amended to read as described in Exhibit "A," attached hereto and by this reference incorporated herein, with new language underlined acid language to be deleted in sethroug~. Section 2. 1-1NFAW"S. The Board adopts as its findings Exhibit "B)" attached and incorporated 't•y reference herein. Section 3. EMERGENCY. This Ordinance being necessary for the immediate preservation of tl-e public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage:. Dated this of , 2010 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON DENNIS R. LUKE, Chair ATTEST: Recording Secretary Date of I" Reading: Date of 2"d Reading Commissioner Dennis R. Luke Alan Unger Tammy Baney Effective date: ALAN UNGER, Vice Chair TAMMY BANEY, Commissioner day of _ 2010. day of 12010. Record of Adoption Vote: Yes No Abstained Excused day of 12010. PAGE 2 OF 2 - ORDINANCE NO. 2010-024 Chapter 23.84. DESTINATION RESORT'S 23.84.010. Destination Resorts. 23.84.020. Goals. 23.84.030. Policies. 23.84.010. Destination Resorts. 'c.cvgriiea by vru The t3tiffie'"vcrs benef'ieial i-t3 paets of destination ~ vcr implemefltiflg stawtes. The t 'th d t' t' r-esefts in D 1, t G my have genefally been vefmy .tjve: ef the County. This was feeagnized by the County in the eampfehensive plaii adepted in 1979. Uftdef the 1979 plan and iffiplementing efdinanees, destination r ofts aFe allowed as eefiditianpl 1:.. in the F 2, F 3, OS&G, 1b1A 10 and R 110 zonzes. Since 1979 destination resorts have increased in importance to the economy of Deschutes County-.-A new Feseft, known as Eagle Q:es, has been sited sinee that tinie. E) g fesot4s, sueh as Stinfivef an In 1989, Rrecognizing the importance of tourism to the economy of the State of Oregon, the state legislature and the Land Conservation and Development Commission LCDCD have take took steps to make it easier to establish destination resorts on rural lands in the state. Statewide Planning Goal 8, the recreation goal, was amended to specify a process for locating destination resorts on rural land without taking an exception to Goals 3, 4, 11 and 14, which govern development in rural resource lands. This was followed by legislation incorporating Goal 8 into Oregon's land use statutes. By these actions, the State of Oregon recognized destination resorts as a legitimate rural land use. Under these changes, destination resorts may be sited in EFU zones where they weren't allowed before. Another aetioiiit4he-state-A el a€fee-Eit~g-tt~e-sit-irlg-ep desEirlatien-resorts-ilr-the-frrrest-1=tr#e-ctrlepEed--b}~ I,C-BE~rAgarEh-#~9.~kis-t~4e aFlews-lest-irtaiz~n,Teso s-tube-~iteclc~t,-~ r;-e~~la;,,ds-lour-sttant-te-F;~l--8: The E6crc-r t:"..--vr Fz t'muc t'rorr la 1y limited if °uec.h -i~rcc6bttl~LS that - the ..:rrrrrgde sc--.tiJn rS - H~6crr~-be c dcr-ei developments we>-e-notzrllewed it~€e,Tn~-a:,d i rR nes. ---4tiplenlet-tt-at}etrof-destination-resot-t--siting-under Goal -8-is E>ption tl =l'l~e-Geal B legislative-proeess-in legislative ehafiges in tile-CeuHt- ~omprehetisive-plan-and-implerr:entin lnnd-use-ordinances: Following the changes to the state regulations because implementation of destination resort siting under Goal 8 was optional and the count -"had not undertaken that implementation, the developcrs_of Eagle Crests applied for legislative changes in the County's comprehensiv"lan and implementink land use ordinances. The Eagle Crest owners-developers wished to expand their current destination resort onto adjacent lands and wished to do so without going through the exceptions process. _They were able to do so when the County adopted a destination resort overlay map. In order Pronghorn, Caldera Springs, and Tetherow resorts have been sited since that time. Resorts existing prior to the le islative change,-such as Black Butte, Sunriver and the Inn of the Seventh Mountain have also expanded .and been rezoned to Urban Unincorporated Community and Resort Community, respectively. In March 1990, LCDC adopted the "forest rule;'- This rule allows destination resorts to be sited on forest lands pursuant to Goal 8. _The-count _ adopted this rule for land zoned Forest Use-2. Additionally, the legislature, in 2003, amended the state statutes adding new language allowing counties to remap eligible lands for destination resorts not more frequently than once every thirty (30) months. Remappin is s now dependent on creating a process for collecting and processing-all proposed map amendments submitted to the county within that thin 30) month planning_Veriod. PAGE 1 OF 5 - EXHIBIT "A" TO ORDINANCE 2010-024 In order to allow destination resorts within the county, Goal 8 requires that Deschutes County adopt a map showin _which lands are available for destination resort development. The purpose of the map is to provide greater certainty concerning--destination resort siting than is available under the exceptions process. To protect forest and farm resources Goal 8 prescribes that certain classes of lands are off limits to destination resort development. The final map must reflect exclusion of such areas. However, although a property is mapped as eligible for a destination resort, a destination resort may not be permitted outright in that location. In order to be approved, a proposal for a resort must be processed as a conditional use and must coinniv with t_he snecific standards and criteria established by the county for destination resorts. in the are available destination o ei4 deve epment. The-pt~ ffig destinatien fesei4 siting than is available un erthe exceptions preeess. T,.. et rn st a far r°°o+-ees :iJeTOf4iriid 1;„,;rs t., ,]opt;„"t:.,., r-eseit development. The Fifia .gaup ii.uot r rin fleticc t ziccl1[i" of s e A detailed ed4ff4Pf4he Goal 8 and the state statute also recognize that destination resorts can have negative impacts on neighborhoods, transportation facilities and the rural quality of life. These impacts can, however, be substantially mitigated,-„ o evef. The County recognizes the importance of balancing protection mechanisms for resource lands and rural land uses with the economic benefits destination resorts provide. The County further recognizes that this balance can be struck by the manner in which areas are designated as being available for destination resort development and by developing ba1aneedestablishin g thorough siting criteria. In establishing these thorough-siting criteria, the County recognizes that it has the option to be more restrictive than state law in the areas it chooses to exclude from destination resort siting through the mapping process. The Board of ( ounty ! 2SSt@}3eF5 h deteFmined that it should r}3*rfleHt-Goal -8 in a rt~aRRer~et~sisteRt-wtEh-£ 3 8 and state lav., ll allow pfoposed destirtati©R---resorts- o, apply--fat approval. Bee-se of the GouRt~" need as-pzaA-e -periedie-review- to ttpdaEe its-c erRpreher3sive plan aRd ordinances to iaM34 forest- ule and sttudy eun-ent ref uses-itrthe-Cc-urrty,-it is--apprc)prtate EE ifpleiflent Leal- $ in-za -phased-€askieR-Aecorciingly the County has First eensidered sittRg elest+Ratic~r Feser+s~n-the eNewiRg 1 p> I krRds-net exeludecl Icy-6ea1 4. (1 r red-LI ~J-IaRd; ~2} irrigated i Isl lands itr euntigueu~ p haviRg-feWei their-49-aEres Of Ofl igu©u in igtifierr ancf-f3j-irrigated 1 > lands-having- 69 of-t-nere arras 4--non-&&ntigu©us land-in the saR~ewt-3ership. S e-end-fc1la1A=imb thv Eeunty s iplementatien of the erect +tile,-Ehe euRty mill eaRSide~devel©pr ant of-destination-reseHs-et €eras}-IaRds. Third, I* - wince-44 e County's +^nr t^.,,,s , part f t>~,eriedie review prc~ess-the "tf- ttrirls X14-,_tle ed furdc Etrrtrtrrnt resr~rts iR rI ittst ba iYi tic, -t-,:- . -Notwithstanding-the phased appr~aeh to d~°':~~t;^~ ~ ~ g it is apprc~}~kate-te devele~4itinf standards f0F ` est:.,..t:eR reserl-sge}3erall~-if FuA refin° nts '.re needed-LVllen-feFestAftnds--and lain lands ceRStdered--lrl-E-he-trn'"-st innppi-Rg-phase-aF ^r~rz"°c~c~i=reT;-;eRES-c-a}rbe-trade-at-tht-ttme- (Ord.- 2010-024 6 I, -2010- Ord. 2002-005 §1, 2002; Ord. 2000-017 §I, 2000; Ord- 93-029, 1993; Ord. 92 029, 1992; Ord. 92-001, 1992) 23.84.020. Goals. 1. To provide for development of destination resorts in the County consistent with Statewide Plannint Goal 8 in a manner that will be compatible with farm and forest uses, existing rural development and in a manner that will maintain important natural features, such as habitat of threatened o~ endangered species, streams, rivers and significant wetlands. 2. To provide a process for the siting of destination resorts on rural lands that have been mapped b, Deschutes County as eligible for this purpose. 3. To provide for the siting of destination resort facilities that enhance and diversify the recreationa opportunities and economy of Deschutes County. PAGE 2 OF 5 - EXHIBIT "A" TO ORDINANCE 2010-024 4. To provide for dev_ elo~ ent of destination resorts consistent with Statewide Planning Goal 12 in a manner that will ensure the resorts are supported b adequate transportation facilities. (Ord. 2010-024 ~ 1, 2010; Ord. 2002-005 §1, 2002; Ord. 2000-017 §1, 2000; Ord. 93-029, 1993; Ord. 92- 029, 1992; Ord. 92-001, 1992) 23.84.030. Policies. 1. Destination resorts shall only be allowed within areas shown on the "Deschutes County Destination Resort Map" and when the resort complies with th_e_ reau_irements of Goal K ORS 197.435 to 197.467, and Deschutes County Code 18.113. 2. Applications to amend the map will be collected and will be processed concurrently no sooner than 30 months from the date the map was previously adopted or amended. 3Mapping for destination resort siting. a. To assure that resort development does not conflict with the objectives of other Statewide Planning Goals, destination resorts shall pursuant to Goal 8 not be sited in Deschutes County in the following areas: 1. Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort; 2. On a site with 50 or more contiguous acres of unique or prime farm land identified and mapped by the Soil Conservation Service or within three miles of farm land within a High- Value Crop Area; 3. On predominantly Cubic Foot Site Class 1 or 2 forest lands which are not subject to an approved Goal exception; 4. On areas protected as Goal 5 resources in an acknowledged comprehensive plan where all conflicting uses have been prohibited to protect the Goal 5 resourcepreteeted4n-sp4e--et ,cicrrfirrc-cr-cv„crivc,*g ci;c°,s("3A" sites desigiiated ptifsuant to OAR 660 16 01 > 5. Especially sensitive big game habitat, and as listed below, as generally mapped by the Oregon Department of Fish and Wildlife in July 1984 and as further refined through, development of comprehensive plan provisions implementing this requirement. i. Tumalo deer winter range. ii. Portion of the Metolius deer winter range; iii. Antelope winter range_ east_ of Bend near Horse Ridge and Millican; 6. Sites less than 160 acres. b. in addition; destiiiation~ reset#5 shal} i, ' b 4eedted- in Feaa-Le;.ea FU 320, EF-U-10-,O-S E ' cct-pcOzycrnrtt-tcr-rrtc-itntii ..TseC-9-2 ids-:viih:n ene mile-outside boundaries. of ar-ban growth e. ia ~I lards not othepwise exelti led undef these polieies shall not be R and-rot-,otherAvtse I exehaflges er-oEhe~leder~rl litpesitier can be s edfet- de isten, with-these pcrl+eies and-n~appeil as-tr+ai} }e for desttxatic3n reset develepmenETo assure tha! resort development does not conflict with Oregon Revised Statute, destination resorts shall not be sited in Deschutes County in Areas of Critical State Concern. c. To assure that resort development does not conflict with the objectives of Deschutes Coui t destination resorts shall also not be located in the following areas. 1. Sites listed below that are inventoried Goal 5 resources, shown on the Wildlife Combininl. Zone, that the County has chosen to protect: i. Antelope Range near Horse Ridge and Millican, ii. Elk Habitat Area; and iii. Deer Winter Range; 2. Wildlife Priority Area, identified on the 1999 ODFW map submitted to the South Count, Regional Problem Solving Groff; PAGE 3 OF 5 - EXHIBIT "A" TO ORDINANCE 2010-024 3. Lands zoned Open Space and Conservation OS&C 4. Lands zoned Forest Use I (F-I) 5- lrrigated_lands zoned Exclusive Faun Use LFU) having 40 or greater contiguous acres in irrigation; 6. Non-contiguous EFU acres in the same ownership having 60 or greater irri ag ted acres; 7. Fann or forest land within one mile outside of urban growth boundaries, 8. Lands designated Urban Reserve Area under ORS 195.145; 9. Platted subdivisions; d. For those lands not located in any of the areas designated in (3)(a) though (c), destination resorts may, pursuant to Goal 8 Oregon Revised Statute and Deschutes County zoning code, be sited in the following areas: 1. Forest Use 2 (F-2) Multiple Use Agriculture MUA-10), and Rural Residential (RR-10) zones; 2. Unirrigated Exclusive Farm Use (EFU) land, 3. Irrigated lands zoned EFU having less than 40 contiguous acres in irrigation; 4. Non-contiguous irrigated EFU acres in the same ownership having less than 60 irrigated acres; 5. Minimum site of 160 contiguous acres or greater under one or multiple ownerships e. The County shall adopt a map showing where destination resorts can be located in the County. Such map shall become part of the Comprehensive Plan and Zoning Ordinance and shall be an overlay zone designated Destination Resort (DR). 24. Ordinance provisions. a. The County shall ensure that destination resorts are compatible with the site and adjacent land uses through enactment of land use regulations that, at a minimum, provide for the following: 1. Maintenance of important natural features, including habitat of threatened or endangered species, streams, rivers, and significant wetlands; maintenance of riparian vegetation within 100 feet of streams, rivers and significant wetlands; and 2. Location and design of improvements and activities in a manner that will avoid or minimize adverse effects of the resort on uses on surrounding lands, particularly effects on intensive fanning operations in the area and on the rural transportation system. In order to adequately assess the effect on the transportation system, notice and the opportunity for comment shall be provided to the relevant road authority. 3. Such regulations may allow for alterations to important natural features, including placement of structures, provided that the overall values of the feature are maintained. b. Minimum measures to assure that decdC- --d la nrnant of impmvc!i -nfs and aeti /Itres will i?.....~......., t, avoid or minimize the adverse effects noted in Policy 4(a)-5(-b) shall include: 1. The establishment and maintenance of buffers between the resort and adjacent land uses, including natural vegetation and where appropriate, fenced, berms, landscaped areas, and other similar types of buffers. 2. Setbacks of structures and other improvements from adjacent land uses. c. The County may adopt additional land use restrictions to ensure that proposed destination resorts are compatible with the environmental capabilities of the site and surrounding land uses. d. Uses in destination resorts shall be limited to visitor- oriented accommodations, overnight lodgings, developed recreational facilities, commercial uses limited to types and levels necessary to meet the needs of visitors to the resort, and uses consistent with preservation and maintenance of open space. e. The zoning ordinance shall include measure that assure that developed recreational facilities, visitor-oriented accommodations and key facilities intended to serve the entire development are physically provided or are guaranteed through surety bonding or substantially equivalent financial assurances prior to closure of sale of individual lots or units. In phased developments, PAGE 4 OF 5 - EXHIBIT "A" TO ORDINANCE 2010-024 developed recreational facilities and other key facilitated intended to serve a particular phase shall he constructed prior to sales in that phase or guaranteed through surety bonding. p-~-;rz:~~R-;r33p1er~enME~-=I~1te C--ec3t3Ey-sl~al~-itrtp}er~er~E-Freal-art-a-Phasea~e~nu~rs-fef4a~u a. The County shall adopt a zoning efdinagee ineludin, A 9. b, The Gowflty shall iae^':6 , e tywide . tinatw&-fesort siting. Based on A ilia neefior-Re#~~'ble Land Use in 0 ~on Desehutes GoLwty-,23-0f LUB 4 76, f a 15 O n 621 (1992) land within t i 1 of t . ty-bo ler-seal" Jc 2iictuctcrt iiiict2i-vc,ut-o-cvattry-rr-tUCti-ui-EntS--~.-rme-t-rt2-2iictu-~t~i-v=irrcrc-Fcv-ctiiiiitarcct-«=nctt lafid joeated in n three miles of Deseh tee G&unty-ham inventor-ied to detewnine whether- any ef that land eanstitutes high valtie efop aFeas i t2-a-F}}caiiner h adequate to deteniiine whether- an), land in Desehiates Gotinty is within three miles of a hi Cotinty shall first eansidef w14fig-ated EFU lands and ftT-igated EFU lands haNing feweF than 4 Next, as the-e~~eds to implement the Goal 4 fefest land and heal 8. petiodie r-eview, the Catitity shall eofts-f to what extent destination fesefts iii~ited on lands pfesently zatied for- fb~st iises. Finally, after the Getint), has eempleted a faf:m stud), PwSuffflH"efiedie feview, the C-2,0i.imp', ,Shall eetisider- to what extent destination fesoAs may be sited en EFU lands f:tot eeflsider-ed dta-ing the first phase of iffiplemefirtation of Goal 8. n ; to- dh 1 a ♦ eensidefed in i ist phase of destination ppinbzand--not 0 the-CoWe-fef T4. Goti * shall-=o plete _efiside r21}2?t tft}~ ] -}3#3 -resoit siting with--pefiedie rev ew. A ess a taken , p1'., ~euffty-,413@t9tH3ty may make araendmems to the eo ffpfehensive plan and z g--maps --teed-itiorrai- afeas-to ttiC-deSt-}t74 tierrr'civi rri~izt?: d-14~tt~-Ehe-Peal -8-t~app~rae~ss 4~-eat~tptet~ne-a~ptieatierr-fe~gtrasi-~tldie-ia~plat~-t~-c-l~n~es-awl ~e ~;~~d_ ~`~4-ttHdeF-tl-~e-6ea1-~-$raee~-~hal; ~ ~ee}~ted,-ar3less stteh-applieations t' - Flea 4ffetigh the Goal 2 extieoeriS-pfoe-e9- (Ord.-2010-024 1 201 ~yOrd. 2002-005 § 1, 2002; Ord. 2000-017 § 1, 2000; Ord. 93-029. 1993; Ord. 92- 029, 1992; Ord. 92-001, 1992) PAGE 5 OF 5 - EXHIBIT "A" TO ORDINANCE 2010-024 FINDINGS The Deschutes County Board of Commissioners (Board) held public hearings on January 20, March 1, April 5, and April 19, 2010 on Ordinance Nos. 2010-001 and 2010-002 to consider legislative plan amendments to Deschutes County Code (DCC) Chapters 22.23 and 23.84.' The Board closed the hearing to oral testimony, but left the written record open until Monday, May 2n, ~v 21n1„ n at v. v 1n:On a.m. The Board u reyuau2ibueratioi iS On iIvay c~rnlay 2n. On i June ~ the Board conducted the first and second reading by title only and adopted both ordinances, declaring it an emergency. However, the adoption of the two ordinances on June 7 was not done properly.2 Because the amendment was not read out loud in full by the Board, the ordinance is not legally adopted. It was placed on the June 9 business meeting agenda as an addition in order to rectify this procedural issue. On June 9, the Board repealed Ordinances Nos. 2010-001 and 2010-002 and scheduled a public hearing for June 30 to take testimony on the County's proposed destination resort remapping criteria and procedures. BACKGROUND Initiated by staff at the request of the Board and further modified by the Deschutes County Planning Commission, Plan Amendment 2009-3 and Text Amendment 2009-9 encompassed in Ordinances Nos. 2010-001 and 2010-002 create a process and criteria the County will follow to change its destination resort map. The two ordinances modify DCC Chapter 23.84, Destination Resort Goals and Policies, and DCC Chapter 22.23, Destination Resort Map Amendment Procedures by: • Listing clear and objective mapping criteria for areas that are ineligible for siting destination resorts; Listing clear and objective mapping criteria for areas that are eligible for siting destination resorts; and, • Describing the process for amending Deschutes County's Destination Resort Map. PROPOSED TEXT AMENDMENT Staff proposed text amendments that create a process and criteria the County will follow to change its destination resort map. The proposed text amendments are outlined in the attached exhibits and underlined for new language and shown as strikethreugh for deleted language. PLANNING COMMISSION RECOMMENDATION The Deschutes County Planning Commission on December 2 closed the public hearing, deliberated and recommended that the Board adopt the above referenced ordinances, with the following refinements included in the recommendations: ' A tax bill insert, complying with Ballot Measure 56 announced the first evidentiary hearing with the planning commission on November 19, 2009. It was distributed in mid-October to all property owners in Deschutes County. The Board hearing was noticed as required in DCC 22.12.020. 2 ORS 203.045 states: "(6) An ordinance adopted after being read by title only may have no legal effect if it differs substantially from its terms as it is thus filed prior to the reading, unless each section incorporating such a difference, as finally amended prior to being adopted by the governing body, is read fully and distinctly in open meeting of that body." Page 1 of 10 - Exhibit B to Ordinance 2010-024 A. A deadline, to be determined by the Board for submitting map amendment applications B. A grandfather clause allowing existing mapped properties to remain on the map regardless if they do not qualify under the new, 2010 eligibility criteria. The clause, which has the same deadline as map amendment applications (see A above) requires property owners to submit a written request specifying that they want the existing resort designation to remain. The grandfathered designation will expire however, for those that fail to submit a request by the established deadline. C. Applicants adding properties to the map must demonstrate consistency with the Transportation Planning Rule, Oregon Administrative Rule 660-012-0060.3 D. Text further clarifying Deschutes County's acknowledged Goal 5, Natural Resources, Scenic and Historic Areas, and Open Spaces program in relationship to the siting of destination resorts. E. Multiple property owners that are contiguous and total 160 acres or greater become eligible for adding lands to the destination resort map. REVIEW CRITERIA Two ordinances, Ordinance No. 2010-001 and 2010-002 are adopted. Both create a process and criteria Deschutes County will follow to change its destination resort map. The plan amendment embodied in Ordinance No. 2010-001 relates to eligibility criteria, and 2010-002 to map amendment procedures. Deschutes County lacks specific criteria in DCC Titles 18, 22, or 23 for reviewing a legislative plan amendment. Nonetheless, because this is a Deschutes County initiated plan amendment, the County bears the responsibility for justifying that the amendments are consistent with the statewide planning goals and Deschutes County's Comprehensive Plan. FINDINGS 1. Statewide Planning Goals. The parameters for evaluating these specific amendments are based on an adequate factual base and supportive evidence demonstrating consistency with Statewide Goal 1, Citizen Involvement, Goal 2, Land Use Planning, Goal 8, Recreation, Goal 12, Transportation, Oregon Revised Statute (ORS), case law, and Deschutes County Comprehensive Plan. The following findings demonstrate that the two ordinances comply with applicable statewide planning goals and state law. Statewide Goal 1 was met through this adoption process because these amendments had two public hearings, one before the County Planning Commission, the County's citizen review board for land use matters, and one before the Board. Goal 2 was met because ORS 197.455(2) allows for such an amendment process and these new code provisions will be the framework for all future decisions on where to allow destination resorts in this county. Additionally, the amendments mirror the statutory requirements that destination resorts not be sited on specific types of farm and forest land, Open Space and Conservation 3 http://www.publications.o'd.state.or.us/Al42351.htm. This change complies with new case law, Willamette Oaks LLC v City of Eugene and Goodpasture Partners. LL C, issued by the Oregon Court of Appeals on November 18, 2009. Page 2 of 10 - Exhibit 8 to Ordinance 2010-024 zoned land, and in areas where wildlife is protected. Thus, the provisions will not conflict with Goals 3 through 5. As for the County's Goal 5 historic resources, the County's regulations already require preservation of those sites regardless of the use proposed for any given property. As for Goals 6 and 7, the County has other code provisions in the destination resort zoning code, DCC Chapter 18.113 that are designed to protect the air, water and land resources quality and to assure that they are not annroved in areas subject to natural resources and natural hazards. Goal 8 specifies the rural areas consisting of agricultural, forest, rural development, and natural resources that are eligible for siting destination resorts.4 Lastly, according to the Comprehensive Plan, the numerous beneficial impacts of destination resorts are recognized by Statewide Planning Goal 8 and by implementing statutes. The new provisions comply with Goal 9 as they will expand the opportunities for more destination resorts, which are a source of economic development by providing jobs in the construction and service industries. In fact, as described in the findings below, the initial reason decades ago the legislature allowed destination resorts in rural areas was to provide a means of economic development particularly in areas such as Central Oregon where farm and forest lands were not as productive as other areas in the state. Although the County is generally not subject to Goal 10, these destination resorts do provide additional housing, albeit, generally higher end housing. Goal 11 is not applicable to destination resorts because destination resorts are specifically allowed urban-type services such as sewer and water. New case law pertaining to Goal 12 requires a map amendment to demonstrate consistency with the Transportation Plan Rule. Refer to Footnotes #2 and #10 for more context. Goal 13 is also addressed through the destination resort zoning code, DCC Chapter 18.113. This specific chapter requires destination resorts during the conceptual master plan (CMP) process to prepare utility and water conservation plans.5 Furthermore, the planning director or hearings body during the CMP process must find that the minimum dimensional standards are adequate to satisfy the intent of the comprehensive plan relating to solar access (DCC 18.113.060(G)(1)). Goal 14 is not applicable to destination resort map amendments because, while destination resorts are built and operated much like an urban area could be, they are specifically allowed in rural areas with some additional requirements. Goals 15 through 19 are not applicable to any amendments to the County's comprehensive plan because the county has none of those types of lands. The eighth finding below further substantiates that the text amendments are consistent with the Corn pr e iensive Plan. Destination Resort Map Amendment / Oregon Revised Statute Originally, an acknowledged destination resort map could only be amended during a state periodic review process. Deschutes County started its periodic review in 1988 and completed it on January 23, 2003. In 2003, the Oregon Legislature amended ORS 197.629(3) exempting counties from periodic review, excluding portions of its population within the urban growth boundary (UGB) of a city. New language was added to ORS 197.455(2) in that same session allowing counties to remap, not more frequently than once every thirty (30) months.6 Remapping is now dependent on creating a process for collecting and processing all map amendments made within a thirty (30) month planning period. 3. Destination Resorts / Statewide Provisions 4 http://egov.ore.qon.clov/LCD/docs/goals/goalB.pdf 5 DCC 18.113.050(B)(5) and (11c) 6 httr)://www.leq.state.or.us/ors/197.html Page 3 of 10 - Exhibit B to Ordinance 2010-024 Initially, destination resorts were not allowed on rural lands in Oregon without an "exception" to the statewide planning goals that limit development on farm or forest land. However, several large resort developments preceded the statewide land use planning system, including Black Butte, Sunriver, and Inn of 7'h Mountain/Widgi Creek. In 1981, Governor Atiyeh's Task Force on Land Use Planning recommended that destination resorts be allowed as an economic development tool in rural areas, with certain sideboards to limit their effects and ensure that their main focus would be overnight lodging rather than second home development. The provisions authorizing the siting of destination resorts outside UGBs without taking exceptions to statewide planning goals were adopted by the Land Conservation and Development Commission (LCDC) in 1984 as amendments to Statewide Planning Goal 8. However, in 1987 the entire content of Goal 8 was added to state law (ORS 197.435 - 197.465), at the request of destination resort interests.' 4. Deschutes County Destination Resort Chapter A destination resort chapter was added to the Deschutes County Comprehensive Plan in 1992 at the request of Eagle Crest Resort.a Table 1 lists the mapping criteria used by the County to determine resort eligibility. Under state law, destination resorts are only allowed on a county's destination resort map. As demonstrated in Table 1, the County supplemented the state's criteria by excluding large agricultural and forest parcels, and resource lands within one mile of a UGB.9 The mapping was done in a phased sequence, based on pending farm and forest. studies. Additionally, as a result of a court case, lands within three miles of the county border were also excluded since most of the lands in Jefferson and Crook counties had not yet been evaluated. At that time, it could not be demonstrated they contained high value crop areas excluded by Statewide Planning Goal 8 and ORS. If a property was not excluded from the map by state or county criteria, it was automatically designated beginning in 1992 on Deschutes County's Destination Resort overlay map. Agenda Item 4, October 15, 2008 LCDC Meeting - Informational Briefing and Public Hearing Regardir g Destination Resorts. 8 http://www co deschutes.or.us/dccode/title23/docs/chapter%2023.84.doc 9 Destination Resort Legislative History: Ordinance Nos. 92-001. 92-002, 92-003, 92-029, 92-030, 92-03 1, 92-032, 93-029, 93-030, 93-031, and 2001-019. Page 4 of 10 - Exhibit B to Ordinance 2010-024 Table 1 - Deschutes County Destination Resort Map Criteria (1992) State of Oregon 10 Deschutes County Criteria Excluded Lands = • Wiihin 24 air miles of UGB with an existing popuiaiion of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort. • On a site with 50 or more contiguous acres of unique or prime farmland identified and mapped by the United States Natural Resources Conservation Service, or its predecessor agency. • On a site within 3 miles of a high value crop area unless the resort complies with the requirements of ORS 197.445 (6) in which case the resort may not be closer to a high value crop area than Y2 - mile for each 25 units of overnight lodging or fraction thereof. • On predominantly Cubic Foot Site Class 1 or 2 forestlands as determined by the State Forestry Department, which are not subject to an approved goal exception. • In an especially sensitive big game habitat area as determined by Oregon Department of Fish & Wildlife in July 1984 or as designated in acknowledged comprehensive plan. • All resource (farm and forest) lands within one mile of a UGB. • Irrigated Exclusive Farm Use (EFU) lands greater than 40 acres of contiguous irrigation under one ownership. • Irrigated EFU lands greater than 60 acres of non-contiguous land in the same ownership. • All Forest Use 1(F-1) zoned property. • Wildlife: a) Tumalo & Metolius deer winter range; b) antelope winter range east of Bend; c) antelope winter range near Millican; d) elk range; e) sage grouse range. Included Lands Forest Use 2 (F-2), Multiple Use Agriculture IMUA-101, and Rural Residential (RR-10) zones. • Unirrigated EFU lands. • Irrigated EFU lands less than 40 acres of contiguous irrigation under one ownership. • Irrigated EFU lands with 60 acres or less of non-contiguous land in the same ownership. _ Today, there are 112,448 acres in Deschutes County mapped for destination resorts. A vast majority are unsuitable for resort development because they are irreversibly committed to platted subdivisions, rural residential development or small lots. Notable statistics include: • 10% of mapped area (10,931 acres) is developed or planned as a destination resort or resort community (Sunriver, Black Butte, Inn of 7th Mountain/Widgi Creek); and, • 54% of mapped area (60,175 acres) contains properties less than 160 acres, includ ng several platted subdivisions. See footnote #5. ORS 197.435 to 197.467 Page 5 of 10 - Exhibit B to Ordinance 2010-024 5. Ordinance 2010-001 / Destination Resort Goals and Policies Ordinance 2010-001 amends the Comprehensive Plan, DCC Chapter 23.84, to include new goals and policies that describe the areas that are eligible and ineligible for siting a destination resort. The criteria noted in Table 2 demonstrates that the new provisions provide clear and objective mapping criteria. Page 6 of 10 - Exhibit B to Ordinance 2010-024 Table 2 - Map Eligibility Criteria c 0 O 4- 0 d c rn d r 0 t N Q1 lnq igip Lands Destination resorts shall not be sited in Deschutes County in the following areas: • Within 24 air miles of an urban growth boundary with an existing population of 100,000 or more unless residential uses are limited to those necessary for the staff and management of the resort, • On a site with 50 or more contiguous acres of unique or prime farm land identified and mapped by the Soil Conservation Service or within three miles of farm land within a High-Value Crop Area; • On predominantly Cubic Foot Site Class 1 or 2 forest lands which are not subject to an approved Goal exception; • On areas protected as Goal 5 resources in an acknowledged comprehensive plan, where all conflicting uses have been prohibited to protect the Goal 5 resource • In an especially sensitive big game habitat area as determined by ODFW in July 1984 or designated in an acknowledged Comp Plan. i. Tumalo deer winter range; ii. Portion of the Metolius deer winter range,- iii. Antelope winter range east of Bend near Horse Ridge and Millican • Sites less than 160 acres • Areas of Critical State Concern. - - - • Sites listed below that are inventoried Goal 5 resources, shown on the Wildlife Combining Zone, that the County has chosen to protect: i. Antelope Range near Horse Ridge and Millican; ii. Elk Habitat Area; and iii. Deer Winter Range • Wildlife Priority Area, identified on the 1999 ODFW map submitted to the South County Regional Problem Solving Group; • Lands zoned Open Space and Conservation (OS&C); • Lands zoned Forest Use 1 (F-1); Irrigated lands zoned Exclusive Farm Use (EFU) having 40 or greater contiguous acres in irrigation; • Non-contiguous EFU acres in the same ownership having 60 or greater irrigated acres; • Farm or forest land within one mile outside of urban growth boundaries; Lands designated Urban Reserve Area under ORS 195.145; • Platted subdivisions; Eligible Lands For those lands not located in any of the areas identified as ineligible, destination resorts may be sited in the following areas: • Forest Use 2 (F-2), Multiple Use Agriculture (MUA-10), and Rural Residential (RR- 10) zones; Unirrigated Exclusive Farm Use (EFU) land, • Irrigated lands zoned EFU having less than 40 contiguous acres in irrigation; • Non-contiguous irrigated EFU acres in the same ownership having less than 60 irrigated acres, Pl-)rcel Size • Minimum site of 160 contiguous acres or greater under one or multiple ownerships Page 7 of 10 - Exhibit B to Ordinance 2010-024 6. Ordinance 2010-002 / Destination Resort Map Amendment Procedures Ordinance 2010-002 amends the County's procedural code, DCC Chapter 22.23, to include new destination resort map amendment procedures, summarized in Table 3, that describe the process for Submitting a map amendment application. Table 3 - Destination Resort Map Amendment Procedures Pracedpr~s The existing comprehensive plan map of sites eligible for destination resorts ("eligibility map") may be amended as follows: • All amendments to the eligibility map shall be processed simultaneously and no more than once every 30 months. • The deadline for applications for the first eligibility map amendment shall be the first Tuesday in September by 5:00 p.m.. • Lands shown on the existing eligibility map but unable to comply with DCC 23.84.030(3)(a), 23.84.030(3)(b), 23.84.030(3)(c) and 23.84.030(3)(d) will remain on the eligibility map if property owners file a formal request with the Deschutes County Community Development Department on an authorized county form by the first Friday in January at 5:00 p.m. to remain eligible. • All lots in a previously platted and developed subdivision shall be eligible to remain on the eligibility map in the same manner as DCC 22.23.010(C). 1. Each lot in the subdivision must contain a deed restriction or Covenant, Condition and Restriction that authorizes the original developer of that subdivision, or its successors in interest, to apply for conversion of the subdivision to a destination resort; 2. The original developer of that subdivision, or its successors in interest, may apply on behalf of all of the individual lot owners to remain on the eligibility map. • In addition to any other county code provision regarding notice, 30 days prior to the end of the next 30-month period for amendments to the eligibility map, Deschutes County shall publish notice announcing opportunities for property owners to apply for an amendment to the eligibility map. • Property owners must file applications for an eligibility map amendment prior to the last day a the 30-month period by 5:00 p.m. • Any additional applications filed after the deadline in DCC 22.23.010(C) will be processed a the end of the next 30-month cycle. I • Applications to either remove property from or add property to the eligibility map may b(! initiated by the Board, or, if by a property owner, shall: 1. Be submitted by the property owner or a person who has written authorization from tht~ property owner as defined herein to make the application; 2. Be completed on a form prescribed by the Planning Director, 3. Be accompanied by the appropriate filing fee, unless such fees are waived by the Board (f County Commissioners; 4. Include documentation that demonstrates compliance with DCC 23.84.030(3)(a), 23.84.030(3)(b), 23.84.030(3)(c) and 23.84.030(3)(d),- 5, For applications adding properties to the eligibility map, the applicant will be required io demonstrate consistency with the Transportation Planning Rule at OAR 660-012-0060." • The planning director shall retain any applications received prior to the expiration of the 30- month period. • Multiple applications shall be consolidated. • The planning director shall schedule the hearing before the planning commission or hearin, Is officer after the expiration of the 30-month period. " See note 2. Willamette Oaks LLC v. City of Eugene and Goodpasture Partners, LLC, issued by the Oregon Court of Appeals on November 18, 2009 requires a local plan amendment to demonst ate Page 8 of 10 - Exhibit B to Ordinance 2010-024 7. Formal Map Amendments Because ORS 197.455(2) allows destination resort map amendments only every 30 months, the Board finds a need to establish deadlines for map amendment applications and a grandfather clause that allows existing mapped properties to remain on the map regardless of whether they do or do not qualify under the new, 2010 eligibility criteria. Thus, the new provisions in DCC 22.23.010(8), (C) and (D) state: (B) The deadline for applications for the first eligibility map amendment shall be the first Tuesday in September by 5:00 p.m. (C) Lands shown on the existing eligibility map but unable to comply with DCC 23.84.030(3)(a), 23.84.030(3)(b), 23.84.030(3)(c) and 23.84.030(3)(d) will remain on the eligibility map if property owners file a formal request with the Deschutes County Community Development Department on an authorized county form by the first Friday in January at 5:00 p.m. (D) All lots in a previously platted and developed subdivision shall be eligible to remair on the eligibility map in the same manner as DCC 22.23.010(C). Each lot in the subdivision must contain a deed restriction or Covenant, Condition and Restriction that authorizes the original developer of that subdivision, or it!; successors in interest, to apply for conversion of the subdivision to a destinatio i resort; 2. The original developer of that subdivision, or its successors in interest, may apply o 1 behalf of all of the individual lot owners to remain on the eligibility map. Consistency with Deschutes County Comprehensive Plan Deschutes County's Destination Resort Goal, DCC 23.84.020, provides for development )f destination resorts in the County consistent with Statewide Planning Goal 8 in a manner that till be compatible with farm and forest uses, existing rural development, and in a manner that trill maintain important natural features, such as habitat of threatened or endangered species, streams, rivers and significant wetlands. As summarized in Tables 1 and 2, and cited in Ordinance 2010-001, Exhibit A, Deschutes County's proposed eligibility criteria continue io protect certain agricultural and forest lands, and acknowledged Goal 5 natural resources. i\s discussed above, these new provisions were designed to comply with the statewide planning goals. Therefore, because the County's comprehensive plan was adopted to comply with tho-;e goals and had been acknowledged as such, the new provisions also comply with the County's comprehensive plan policies and goals, which are rarely more restrictive than the statewide planning goals. Additionally, Ordinance 2010-002, Exhibit A, proposes a grandfathered clause for existing mapped properties to remain on the map regardless if they do not qualify under the new, 2010 eligibility criteria. Even these grandfathered properties, if so chosen to remain mapped, are consistent with the Comprehensive Plan because the existing destination resort map is consistency with Statewide Planning Goal 12 and the Transportation Planning Rule. Deschutes Cot my fulfills this obligation as cited in Table 3 above and specifically, Ordinance No. 2010-002, Exhibit A, E CC 22.23.010(G)(5). Page 9 of 10 - Exhibit B to Ordinance 2010-024 acknowledged by the Oregon Department of Land Conservation and Development. 12 Map amendments represent only the first of several steps for a property to become entitled and developed as a destination resort. The Deschutes County Destination Resort Combining Zone, DCC 18.113 specifies an extensive burden of proof for an applicant seeking conceptual master plan as well as final master plan approval. That chapter was found years ago to be in compliance with the County's comprehensive plan and, as stated above, provides many of the protections required by the County's Comprehensive Plan policies. 12 See Finding #2, page I Page 10 of 10 - Exhibit B to Ordinance 2010-024 REVIEWED -9-4- LEGAL COUNSEL BEFORE ; HE BOARD OF C'O~ : COr.^.M1SSlONER~ OF Dt=SC11UTES CO' : ; Y, O.T:EGO^' An Ordinance Adding Deschutes County Code Chapter 22.23, Adopting Destination Resort Map Amendment Procedures, and Declaring an * ORDINANCE NO. 2010-025 Emergency. WHEREAS, the Board of County Commissioners ("Board") directed staff to initiate a plan amendn ent to adopt map amendment procedures for destination resort remapping; and WHEREAS, after notice was given in accordance with applicable law, public hearings were hel( on November 19, 2009, and on December 2, 2009 before the Deschutes County Planning Commission and on December 2, 2009, the Planning Commission recommended approval of the Comprehensive Plan amendments; and WHEREAS, on February 25, 2010 the Planning Commission forwarded to the Board additional recommendations for amendments to DCC Chapter 22.23; and WHEREAS, the Board held duly noticed public hearings on January 20, March 1, April 5, and ApH 19, 2010 on Ordinance 2010-001, the ordinance that included the amendments to DCC Chapter 23.84_ and Ordinance 2010-002, the ordinance that added DCC Chapter 22.23, the procedures for amending the C,,unty Comprehensive Plan map; WHEREAS, on June 7, 2010, the Board amended Ordinance 2010-002, conducted the first and s::cond reading by title only of Ordinances 2010-001 and 2010-002, and adopted both ordinances declarii g an emergency; and WHEREAS, on June 9, the Board determined that the adoption of Ordinance 2010-002 was not d,?ne in accordance with ORS 203.045(6) because the amendment to Ordinance 2010-002 adopted on June 7, 2010 was not included in the ordinance filed with the Board Clerk on June 1, 2010 or read in full by the Board, thereby rendering the ordinance ineffective; and WHEREAS, on June 9, 2010, the Board repealed Ordinances 2010-001 and 2010-002 and schec uled a public hearing on new versions of both ordinances for June 30, 2010 at 10:00 am; and WHEREAS, this ordinance replaces Ordinance 2010-002 with additional amendments to DCC 22.23; and WHEREAS, the Board of County Commissioners considered this matter after a duly noticec public hearing on June 30, 2010 and concluded that the public will benefit from changes to the land use regul: tions, ; and WHEREAS, in order to be able to provide direct public notice utilizing the county tax statement mailing in October, 2010 the Board finds it in the public interest to adopt this ordinance by emergency; now, thei -fore, PAGE 1 OF 2 - ORDINANCE NO. 2010-025 THE BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON, ORDAINS as follows: Section 1. ADDING. DCC Chapter 22.23, Destination Resort Map Amendment Procedures, is heresy added to read as described in Exhibit "A" attached hereto and by this reference incorporated herein. Section 2. FINDINGS. The Board adopts as its findings Fxhihit "B" attached to Ordinance 2010-001 and incorporated by reference herein. Section 3. EMERGENCY. This Ordinance being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this Ordinance takes effect on its passage. Dated this of , 2010 BOARD OF COUNTY COMMISSIONERS OF DESCHUTES COUNTY, OREGON DENNIS R. LUKE, Chair ATTEST: Recording Secretary Date of I" Reading: Date of 2"d Reading: Commissioner Dennis R. Luke Alan Unger Tammy Baney Effective date: ALAN UNGER, Vice Chair TAMMY BANEY, Commmissioner day of ---,2010. day of 12010. Record of Adoption Vote: Yes No Abstained Excused day of 2010. PAGE 2 OF 2 - ORDINANCE NO. 2010-025 Chapter 22.23. DESTINATION RESORT MAP AMENDMENT PROCEDURES 22.23.010. Destination Resort Map Amendment Procedures. The existing com relp iensive la pn neap of sites eligible for destination resorts ("eligibility mar)" be amended as follows: A. All amendments to the eligibility map shall be processed simultaneously and no more than once every 30 nlOI1LIIS. - - - - - B. The deadline for applications for the first eligibility map amendment shall be the first Tuesday in September by 5:00 p.m. C. Lands shown on the existing eligibility map but unable to comply with DCC 23.84.030(3)(a) 23.84.030(3)(b), 23.84.Q30(3I(c) and 23.84.030(3)(d) will remain on the eligibility map if property owners file a formal request with the Deschutes County Community Development Department on al authorized county form by the first Friday in January at 5:00 p.m. to remain eligible. D. All lots in a previously platted and developed subdivision shall be eligible to remain on the eli ig bilit map in the same manner as DCC 22.23.010(C). 1. Each lot in the subdivision must contain a deed restriction or Covenant, Condition and_K_estriction that authorizes the original developer of that subdivision, or its successors in interest, to apply ft r conversion of the subdivision to a destination resort, 2. The on tgnal developer of that subdivision, or its successors in interest, may apply on behalf f all of the individual lot owners to remain on the eligibility map. E. In addition to any other county code provision regarding notice, 30 days prior to the end of the next 3 month period for amendments to the eligibility map, Deschutes County shall publish a _noti.:e announcing opportunities for property owners to apply for an amendment to the eligibility map. F. Property owners must file applications for an eligibility neap amendment prior to the last day of the -,D- month period by 5:00 p rm G. Any additional applications filed after the deadline in DCC 22.23.010(C) will be processed at the end of the next 30-month c cy le. 1-i. Applications to either rernoy" open from or add p o e to the eli ibility map tnay be initiated h_y the Board, or, i f by a proper ty owner, shall: 1. Be submitted by the property owner or a person who has written authorization from the prohrrty owner as defined herein to im ke the application; 2. Be completed on a for! prescribed by the Plamling pirector- 3._Be accompanied by the_Upropriate_tilrne fee_ unless such fees are waived_ by the Board of Cot _n_t_v Commissioners' 4. Include documentation that demonstrates compliance with DCC_23.84.030(3 (a), 23.84.030(3)(1)), 23,84.030(3)(c) and 23.84.030(3)(4); 5-For _ pRlicetions adding rApellies to the eli ibility map, the applicant will be rNuire(. to demonstrate consistency with the Transportatiorn Planning Rule at OAR 660-012-0060. 1. The planning director shall retain any a plications received prior to the expiration of the 30=m )nth period. J. Multiple applications shall be consolidated. K. The planning director shall schedule the hearing before the p_ pu cominission or hearings Al f icer after the expiration of th_e 30-month period. Ord._ 2010 02512010) PAGE I OF I - EXHIBIT "A" TO ORDINANCE 2010-025 EXHIBIT "A" Legal Description EY2NE'/, Section 20 and W'/2NW'/4, Section 21, Township 15 South, Range 12 East, Willamette Meridian State of Oregon to Thornburgh Resort Co LLC 33991-S U Exhibit A Page 1 of 1 cc' Document Reproduces Poorly (Archived) Exhibit B 1. 7-21 m ~ r / 33 i. 6 !r . 7 9 Legend \ r 4 ZI Rcsldrn[tul Lodging rM Coa,n,<reiai uses I {iE _ .~J Recrentlunal Feuirtia / 1. r open sFa« r ~ wvau rknsiiy ~ .~l uu l nrre ~ of as I' a ( `i ~ i ~ ~ ~ 3 1s ~ I~i ~ ! 7 ice( MUM E \ °,4~\\Sla z. THORNBURGI-I RESORT CONCEPTUAL DEVELOPMENT PLAN- EXHIBIT # A-4 V A 10 ~_-~_77 aas UESCHUIESCOUNIY OREGON EXHIBIT "C" After Recording, return to: Space above this line for recorder's use Oregon Department of State Lands Attn: Nancy N Pustis, Eastern Region Manager 20300 Empire Avenue, Suite #1 Bend OR 97701 MEMORANDUM OF LEASE DATE: I,,,- Z~{ Zyyu/ BETWEEN: STATE OF OREGON, acting by and through its Department of State Lands ("Landlord") AND: Thornburgh Resort Company, LLC, an Oregon-limited liability company ("Tenant") Pursuant to a lease agreement entered into by Landlord and Tenant on ("Lease"), Landlord has leased to Tenant certain real property identified as: Tax Lot 5300, being the E'/zNE'/ Section 20 and W'/2NW'/, Section 21, Township 15 South, Range 12 East, Willamette Meridian, in Deschutes County, Oregon. This Memorandum of Lease is executed to evidence and confirm the Lease, to which reference is made for its terms and conditions, which include the following: The Premises may be improved, used and/or maintained by Tenant for "open space" only, as further defined in the Lease. The initial Term of the Lease is for five (5) years with two (2) renewal options of five years (5) each. Landlord has a right to sell the property that is the subject of the Lease subject to Tenant's rights under the Lease. This Memorandum of Lease may be recorded in the real property records of Deschutes County, Oregon, in order to give notice of the existence of the Lease. This Memorandum of Lease may not be deemed or construed to define, limit, or modify the Lease, or any provision thereof, in any manner. State of Oregon to Thornburgh Resort Co LLC 33991-SU Exhibit C Page 1 of 2" LANDLORD: State of Oregon, by and through its Department of State Lands by: to hen J. Pur ase Assistant Director TENANT: Thornburgh R ompany, LLC, an Oreg mite ability com any by: Authorized Sig re ACKNOWLEDGEMENT OF LANDLORD STATE OF OREGON) ) ss. County of Marion ) 4j Appeared before me on by Stephen J. Purchase, who represented that he executed this Memor dum of Lease on behalf of the State of Oregon, acting by and through its Department of State Lands, and that this Memorandum of Lease is his voluntary act and deed. - 0~0tN SpS otary Pu for Of jENNug~►CAyBg mpg My commission Expires J[- NOTAR LION N ~g 39 y1JNE 05. • GOMµ EXP1R MY CISSION ACKNOWLEDGEMENT OF TENANT STATE OF OREGON ) ) ss. County of I!&d21I a, ) Appeared before me on by who represented that he execu ed t i Memorandum of L se on b alf of Thornburgh Resort Company, LLC and that this M orandum of Lease i his voluntary a d deed Notary Publicjor Oregon OFFICIAL SEAL My commission Expires ~_n tv PILAR ASH NOTARY PUBLIC-OREGON COMMISSION NO. 356809 MY COMMISSION EXPIRES APR. 16, 2006 State of Oregon to Thornburgh Resort Co LLC 33991-S U Exhibit C Page 2 of 2 STATE OF OREGON DEPARTMENT OF STATE LANDS Amendment to Special Use Lease-33991 71 Effective kc. 2008, the following terms and conditions are modified in that certain lease between the STATE OF OREGON, acting by and through the Department of State Lands (STATE) and Thornburgh Resort Company, LLC, (LESSEE), which is dated and signed on August 24, 2005. All terms of the lease not specifically changed by this modification remain unchanged and in full force. RECITALS WHEREAS, Landlord owns 160 acres of undeveloped land in Sections 20 and 21, Township 15 South, Range 12 East, in Deschutes County, Oregon, defined below as the "Land"; and ARTICLE 4 Rent 4.1 Commencement. Beginning on the Commencement Date Tenant must pay rent of $11,488 per year as Annual Rent for the Premises. 4.3 Place for Payment of Rent. All rent due and payable under this Lease must be paid to Landlord at the Department of State Lands, 20300 Empire Avenue Suite #1, Bend, OR 97701,Attention: Eastern Region Manager, or such other places as Landlord may from time to time designate by written notice given to Tenant. 5.2.1 Conceptual Master Development Plan. Within three years after the Commencement Date and prior to beginning any Construction Work Tenant may develop and g1-1bmit to T.anrllnr,1 fnr Landlord's approval a Conceptual Muster Development Plan for the Land to govern Tenant's efforts to obtain a change in land use and future construction and development of the Land in conjunction with Tenant's Destination Resort. Landlord's approval of the Conceptual Master Development Plan may be granted or withheld in Landlord's sole and absolute discretion. Upon Landlord's approval of the Conceptual Master Development Plan, Tenant is authorized to seek a change in land use designation for the Premises in order to accommodate the Conceptual Master Development Plan. Landlord will cooperate with Tenant in submitting Tenant's application for such change in land use designation. Exhibit "A" Legal Description E1/2NE 1/4, Section 20 and W1/2NW1/4, Section 21 Township 15 South, Range 12 East, Willamette Meridian. STATE OF OREGON -PARTMENT OF STATE LANDS Assignment of Lease SU-33991 For good and valuable consideration received, Genesis Development Group, LLC hereby assign(s) to Agnes DeLashmutt all right, title, and interest in the attached lease number SU-33991, by and between the State of Oregon, acting by and through the Department of State Lands, as Lessor, and Genesis Development Group, LLC, as Lessee, covering the use of the real property and improvements described therein, situated in Deschutes County, State of Oregon. This assignment is not valid until the Department of State Lands issues its written conse Dated this -2L/ day of 1►i~, 2010. STATE OFC)Pf-60AD County of Df5GQ kTrs.6 OFFICIAL SEAL CYNTHIA A ZOLLNER NOTARY PUBLIC-OREGON f COMMISSION NO. 443229 MY COMMISSION EXPIRES NOV. 11, 2013 Thy foregoing instrument was'' acknowledged before me this Z7 day of "I r 20 _I0 , by t2it1040h Ddd-S//M64 (officer or agent of corporation), the (title) of C (J b rporation), on behalf of the corporation. ' Sig ature My Commissions Expires: Agnes DeLashmutt hereby acknowledge(s) the within assignment and agree(s) to be bound by all the terms, conditions, obligations, and liabilities in any way connected with the said lease and to faithfully perform all provisions therein contained. Dated this 2- _ day of I V l ~r ~l 20ASSIGNEE 4048 NW Xavier Agnes M. DeLashmutt (Address) (PI ase print) Redmond OR 97756 (City) (State) (Zip) Sign ure (Area Code) (Phone Number) SI ATE OF DC-06U3 County of T> OFFICIAL SEAL CYNTHIA A ZOLLNER NOTARY PUBLIC-OREGON COMMISSION NO. 443229 MY COMMISSION EXPIRES NOV. 11, 2013 by The foregoing instrument was acknowledged before me this day of VA. '20 (individual). v Sig ature My Commissions Expires: The State of Oregon, acting by and through the Department of State Lands in the above-mentioned Lease, acknowledges and consents to this assignment. Dated this day of ZTAr.,A , 20 l0 DEPARTMENT OF STATE LANDS a G ~ By: Salemnrou-w,u,o~ Cm k~,,,, 1r0wxJ,Wto m MduaLaoc anny R. Quackenbush Such condition(s) is (are) hereby deleted and in its place is substituted the following condition(s): RECITALS WHEREAS, ui 2008 Landlord acquired 240 acres of undeveloped land from the Unites States Bureau of Land Management in Section 17, 20,29, & 30, Township 15 South, R.nnge 12 East, in Deschutes County, Oregon, which the Part;oc rlosiro to add to the original leased Land to result in a total of 400 acres of land, defined as the "Land"; and ARTICLE 4 Rent 4.1.1 Commencement. The Commencement Date for this Amendment is January 1, 2009. Beginning on the Commencement Date, Tenant must pay rent of $28,720 per year as Annual Rent for the Premises. 4.1.2 Place for Payment of Rent. All rent due and payable under this Lease must be paid to Landlord at: Department of State Lands Unit 18 PO Box 4395 Portland, OR 97208-4395 5.2.1 Conceptual Master Development Plan. Within three years after the Commencement Date, January 1, 2009, and prior to beginning any Construction Work Tenant may develop and submit to Landlord for Landlord's approval a Conceptual Master Development Plan for the Land to govern Tenant's efforts to obtain a change in land use and future construction and development of the Land in colnjurictloii with Tenant's Destination Resort. Landlord's approval of the Conceptual Master Development Plan may be granted or withheld in Landlord's sole and absolute discretion. Upon Landlord's approval of the Conceptual Master Development Plan, Tenant is authorized to seek a change in land use designation for the Premises in order to accommodate the Conceptual Master Development Plan. Landlord will cooperate with Tenant in submitting Tenant's application for such change in land use designation. Exhibit "A" Legal Description Township 15 South, Range 12 East, Willamette Meridian, NE 1/4SW 1/4, Section 17; E 1/2NE 1/4, SE 1/4SW 1/4, Section 20; W1/2NW1/4, Section 21; N1/2NW1/4, Section 29; NE1/4NE1/4, Section 30 Total of 400 acres, more or less. IN WITNESS WHEREOF the parties have executed this lease Amendment. STATE: The State of Oregon, acting by and through the Oregon State Land Board and the Department of State Lands 1645 NE Forbes Road, Suite 112 Bend, Oregon 97701 \ c- • , " kit b, z. ~ Authorize Signature Date LESSEE: Thornburgh Resort Company,LLC c/o Kameron Delashmutt P.O. Box 264 Bend, Oregon 97701 WITNESS the seal of the Department of State Lands affixed this day of , 2008. STATE OF OREGON, acting by and through its Department of State Lands Nancy N. ustis OFFICIAL SEAL R; ONDA L RAY NOTARY PUBLIC-OREGON STATE OF OREGON ) MYCQII7MISOS NEXPIRES SEPTEMPR o12,2009 )ss County of Deschutes This foregoing instrument was acknowledged before me this 1 day of0~ , 2008, by Nancy N. Pustis, the Eastern Region Manager of the Department of State Lands. Va S." I V0~4 Signature My commission Expires S~ Jy' 20 a~j STATE OF OREGON DEPARTMENT OF STATE LANDS UPLAND SPECIAL USE LEASE AGREEMENT TIVIS LE4~E AGREEMENT (the "Lease") is made and executed as of the 2 day of ~~1l , 2005, by and between the STATE OF OREGON, acting by and through its Dep-r!ment of State Lards ("Landlord') anri Thnrnhi irgh Racnrt (.mmnan\i, LI C an Orennn limited liability company ("Tenant'). RECITALS WHEREAS, Landlord owns 160 acres of undeveloped land in Sections 20 and 21, Township 15 South, Range 12 East, in Deschutes County, Oregon, defined below as the "Land"; and WHEREAS, the Land is adjacent to approximately 1980 acres owned by Tenant; and WHEREAS, Tenant's land is zoned for Destination Resort ("DR") use, pursuant to Chapter 18.113 of the Deschutes County Ordinances, and Landlord's Land is zoned for Exclusive Farm Use ("EFU"); and WHEREAS, Tenant has filed with Deschutes County, a Conceptual Master Plan and Conditional Use Application ("Land Use Application") for development of permanent residential housing, overnight lodging, golf courses and other commercial and recreational amenities, described as the "Destination Resort"; and WHEREAS, Tenant's Land Use Application identifies the Land as being owned by the State of Oregon, and, subject to execution of this Lease, proposed for "open space" use, consistent with the current EFU zoning; and WHEREAS, by entering into this Lease, in addition to authorizing such open space, Tenant and Landlord seek to explore opportunities for re-zoning and possible future development of the Land, as part of the Destination Resort; and WHEREAS, to facilitate such efforts, Tenant will develop for Landlord's consideration a "Master Development Plan" (as defined below) describing how the Land could be incorporated into development of the Destination Resort, subject to required zoning changes and local land use approval; and WHEREAS, Landlord and Tenant intend that if Landlord approves the Master Development Plan Tenant will have an option to extend the Lease and Landlord and Tenant will modify the Lease to allow Tenant to proceed with efforts to obtain required zoning changes and land use approvals, and thereafter to develop the Land in accordance with the approved Master Development Plan; and State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 1 of 35 WHEREAS, the parties intend to cooperate, in good faith, to reach agreement on a Master Development Plan, and to take steps necessary to obtain local land use approval for implementation of the Master Development Plan for the Land. NOW THEREFORE, the parties agree as follows: r^,°TICLE 1 Definitions Annual Rent. "Annual Rent" means the rent specified in Section 4.1, as adjusted under Section 4.4, due and payable on the Commencement Date and then annually on the first day of each year during the Term. Anniversary Date. The "Anniversary Date" means the date which occurs annually each year during the Term on the anniversary of the Commencement Date. Approved Sublease Form. "Approved Sublease Form" means a sublease agreement in a form that is from time to time throughout the Term provided by Landlord, or which is submitted by Tenant for approval by Landlord, and which is to be used by Tenant in connection with subleasing all or any part of the Premises or space in the Improvements. There may be more than one Approved Sublease Form. Approved Use. "Approved Use" or "Approved Uses" means a use of the Premises described in Section 5.1 or to which Landlord has given written consent. Cancellation Notice. "Cancellation Notice" means written confirmation of cancellation of the Lease. Commencement Date. "Commencement Date" means the last date upon which this Lease is executed by the Landlord or Tenant. Construction Work. "Construction Work" means any grading or excavating for, or the building or demolition of, an Improvement on the Premises that is performed by or for Tenant. Contractor. "Contractor" means a licensed, bondable, reputable contractor selected by Tenant or any Subtenant in accordance with the terms of this Lease or an approved Sublease under Section 7.2. Design Professional. "Design Professional" means a suitably qualified and experienced architect or engineer licensed to practice as such in the State of Oregon. Estoppel Certificate. "Estoppel Certificate" means a statement from Landlord or Tenant certifying that this Lease is unmodified and in full force and effect without default, or, if there have been modifications or defaults, that this Lease is in full force and effect as modified or subject to such claims as are set forth in the statement. The statement must also state the dates to which the Annual Rent has been paid and the existence of any other charges of general application by any State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 2 of 35 public authority which during the Term are scheduled to be assessed, levied, charged, confirmed or imposed by public authority upon or accrue or become due or payable on account of or become a lien on or against the Premises and Improvements or any portion thereof, and any interest in the Premises, including the fee estate or any leasehold estate, or any Improvements, personal property or other property in or on the Premises, during the Term by any Governmental Authority having jurisdiction, whether belonging to or chargeable against, Tenant, Subtenant, Landlord, or a subsequent owner of the fee interest. Governmental Authority. "Governmental Authority" means any federal, state or local jurisdiction that exercises authority over the Premises or the activities of Tenant. Hazardous Materials. "Hazardous Materials" means any material regulated by federal or state environmental protection laws or any material that may pose a threat to human health or the environment, including without limitation, hazardous substances, pesticides, herbicides, or petroleum products. Impositions. "Impositions" means all taxes, assessments, fees and other special or general charges assessed against the Land by a taxing body or regulatory authority. Improvements. "Improvements" means all buildings, structures, fixtures, fences, interior roads, garages, parking lots, fountains, utility installations, excavations, surfacing, water banks or channels, landscaping, grading and plantings which are currently located on the Premises and, following completion, all Construction Work to be performed on the Premises by Tenant or at Tenant's direction or under Tenant's authority in accordance with this Lease, and applicable codes and ordinances. Institutional Lender. "Institutional Lender" means a commercial provider of financing in the form of mortgages or loans secured by one or more deeds of trust. Insurance Trustee. "Insurance Trustee" means a neutral third party appointed by Landlord and Tenant for the purpose of holding and disbursing insurance proceeds following a casualty loss. Land. "Land" means the Landlord-owned real property situated in the County of Deschutes, State of Oregon, more particularly described in Exhibit A, attached hereto, that is the subject of the Lease. Landlord. "Landlord" means the State of Oregon, acting by and through its Department of State Lands, or its successors and assigns. Late Payment Rate. The "Late Payment Rate" means the maximum rate of interest permitted by applicable law after a default, such rate not to exceed nine (9) percent annually. Lease. "Lease" means this Lease Agreement together with all Exhibits attached hereto. This Lease is subject to: a) all applicable state and federal statutes, rules, and regulations in effect on the Commencement Date, and State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 3 of 35 b) insofar as is constitutionally permissible, all statutes, rules, and regulations which become effective after the Commencement Date. Lease Year. "Lease Year" means a year of 365 days (366 days in a leap year) commencing on the Commencement Date and each subsequent Anniversary Date. Leasehold Mortgage. "Leasehold Mortgage" means any mortgage, deed of trust, or other Securily iilsilui~~ent encumbering Tenants leasehold estate Cr@aL U II Li anU b'v111 11 iS iii iavi v1 an Institutional Lender. Leasehold Mortgagee. "Leasehold Mortgagee" means the holder, trustee or beneficiary of a Leasehold Mortgage who is an Institutional Lender. Master Development Plan. "Master Development Plan" means the plan developed by Tenant for construction of the Destination Resort on the Premises, as described in Section 5.2 below. The Master Development Plan shall include two phases: 1) a "Conceptual Master Development Plan" that provides a general framework for future development of the site, with sufficient specificity to allow for approval by Landlord for Tenant to proceed with seeking a land use change, and 2) a "Final Master Development Plan" that provides additional details and refinement of the Conceptual Master Development Plan for purposes of proceeding with construction after land use approval. Person. "Person" means any entity, whether an individual, trustee, corporation, partnership, trust, unincorporated organization or otherwise. Premises. "Premises" means Tenant's leasehold interest in the Land and any Improvements situated thereon. Sublease. "Sublease" means a subsidiary lease from Tenant to a Subtenant, approved by the Landlord, of all or any portion of the Premises in which the interest so transferred is less than Tenant's entire interest hereunder. Subtenant. "Subtenant" means any person or entity occupying space on or in the Premises under a Sublease approved by the Landlord. Tenant. "Tenant" means Thornburgh Resort Company, LLC, an Oregon limited liability company, and Tenant's successors and assigns hereunder. Term. "Term" means the period of time during which the Lease will be in effect, as described in Sections 3.1 and 3.2 hereof. Unavoidable Delay. "Unavoidable Delay" means delay due to strikes, lockouts, acts of God, unavailability of labor or material, embargoes, war, enemy action, civil commotion, fire, windstorm, flood, explosion, earthquake, unavoidable casualties, building or use moratorium imposed by applicable Governmental Authority, activities necessary to remediate any environmental condition of the Premises not caused by Tenant, or other similar causes beyond the reasonable control of Tenant, including any delay caused by the act or omission of Landlord. State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 4 of 35 Utilities. "Utilities" means all services and public utilities delivered to, provided for, or consumed on the Premises, including, without limitation, such services as janitorial and garbage pick-up and such utilities as natural and propane gas, water, sewer, storm sewer, electricity, cable television, and telephone and telefacsimile services. Work. "Work" means all construction work, development and improvements to the Premises to be performed by Cr on behalf of Tenant Cr Subtenant ARTICLE 2 Lease of the Premises 2.1 Demise. Landlord hereby leases to Tenant and Tenant hereby hires from Landlord, the Premises located at Township 15 South, Range 12 East, Sections 20 and 21, Deschutes County, Oregon more particularly described in Exhibit A. PROVIDED, HOWEVER, that the Premises will at all times during the Term be subject to the reserved rights of Landlord, the limitations on uses set out in this Lease and the provisions of Division 125 of the Oregon Administrative Rules, chapter 141 (Special Use on State Owned Land) . Landlord also specifically reserves the right to use all access roads and easements on the Premises, and to use the Premises as necessary to access that portion of Landlord's property that is not subject to this Lease. 2.2 Sale of Premises. Landlord reserves the right to sell Landlord's fee interest in all or any part of the Land at any time during the Term. Any such sale or sales of the Land will be made subject to Tenant's rights and Landlord's obligations under this Lease. 2.3 Encumbrances; Reservation of Rights. This Lease is subject to the following matters to the extent that they affect the Premises: a) Any lien, charge, claim or other encumbrance whether of record or not, to the extent valid and subsisting and affecting the Premises; b) The effect of all present building restrictions and regulations and present and future zoning laws, ordinances, resolutions and regulations and all present ordinances, regulations and orders of all boards, bureaus, commissions and bodies and any county, state or federal agency, now having, or hereafter having acquired, jurisdiction of the Premises and the use and improvement thereof, including, but not limited to, the Deschutes County Comprehensive Plan and Revised Code (including Zoning Ordinances); c) The condition of the Premises on the Commencement Date; d) All taxes (including local improvement rates), duties, assessments, special assessments, water charges and sewer rents and any other Impositions, accrued or unaccrued, fixed or not fixed; e) Any facts and any current violations of law, ordinances, orders or requirements that might be disclosed by an accurate physical survey, or an examination and physical inspection or search of the Premises by any Governmental Authorities, as the same may exist on the Commencement Date; and State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 5 of 35 f) Landlord's reserved right to locate, construct, install, and maintain sewers, utility lines, dredge pipes, transit tubes, telecommunications lines, and similar installations or facilities in, on, under, over or across the Premises, and, further, Landlord's right to grant to third parties, rights of way, easements, or other rights to come on, move under, over, or across, gain access to, or otherwise use the Premises during the Term, provided that Landlord's reserved right must not unreasonably interfere with the right of quiet enjoyment of the Tenant and any Subtenant, and that Landlord will provide reasonable prior notice in the event Landlord intends to exercise Landlord's reserved right. 2.4 Tenant's Waiver of Claims and Indemnification. 2.4.1 Tenant hereby acknowledges that it has had the opportunity to undertake all inspections and investigations of the Premises as it deems necessary; has requested of Landlord, and has reviewed, all reports, studies and investigations of the Premises as it deems necessary, and has otherwise undertaken such due diligence as it deems appropriate with respect to the Premises. Tenant acknowledges that it is leasing and accepts the Premises and the Improvements on an "As Is" and "Where Is" basis. Tenant acknowledges and agrees that Landlord has not made nor is Tenant relying upon any representations or warranties made with respect to the Premises, including but not limited to, the condition of the Premises, the use(s) to which the Premises may be put or for which the Premises may be developed. 2.4.2 Tenant hereby releases and waives all claims against Landlord, its officers, public officials, employees, agents or contractors for injury or damage to person, property, or business sustained in or about the Premises by Tenant, its agents, employees, invites, customers, Subtenants or other occupants or users of the premises, which injury or damage results from any act, neglect, occurrence, or condition (including pre-existing conditions) in or about the Premises, unless such damage is caused by Landlord, its officers, public officials, employees, agents or contractors. 2.4.3 Tenant must defend, indemnify and hold Landlord and Landlord's fee interest under this Lease free and harmless from and against any and all liability, claims, loss, damages, penalties, fines, causes of action and expenses resulting from Tenant's occupation and use of the Premises including, without limitation, any liability, claim, loss, damage, penalties, fines, causes of action and expense incurred or suffered by Landlord and arising by reason of: a) The death or injury of any person, including any person who is an officer, employee, or agent of Tenant, by reason of the condition of the Premises, damage to or destruction of any property, including property owned by Tenant or by any Person who is an employee or agent of Tenant, from any cause arising from Tenant's use of the Premises (other than any act or omission of Landlord, its officers, employees, or agents) while such person or property is in or on the Premises or any of the Improvements; b) Tenant's failure to perform any provision of the Lease or, subject to any rights to contest provided Tenant herein, to comply with any requirement of law or any requirement imposed on Tenant in connection with the Improvements thereon, or the Premises, by any duly authorized governmental agency or political subdivision; or State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 6 of 35 c) Any occurrences for which Tenant's waiver set out in Section 2.4(b) applies. 2.5 Landlord's Waiver of Claims. Landlord hereby waives claims against Tenant and releases Tenant, its officers, employees, agents or contractors from any and all liability, claims and damages of any type or kind that are caused by or are the proximate result of the acts or omissions of Landlord, its officers, employees or agents, except to the extent that the liability, claims or damuy^es are related to or arse c,,f of activities or omissions by Tenant itc anPntc PmnlnvPPc contractors, or Subtenants. ARTICLE 3 Term 3.1 Term and Early Termination. The Term will commence on the Commencement Date and will expire on the Fifth (5th) Anniversary Date of the Commencement Date. 3.2 Options to Renew Lease. Tenant is provided consecutive options to extend the Lease for two (2) additional Terms of five (5) years each, provided that at the time the option is exercised Tenant is a tenant in good standing and is not in material default of the Lease. Each option must be exercised by Tenant providing notice to Landlord in writing not less than 180 days before the expiration of the then-current Term. ARTICLE 4 Rent 4.1 Commencement. Beginning on the Commencement Date Tenant must pay rent of $11,488 per year as Annual Rent for the Premises. 4.2 Payment of Annual Rent. Commencing on the Commencement Date and except as otherwise provided herein, Tenant must pay to Landlord Annual Rent in advance on the first day of each calendar year during each Lease Year for the entire Term, without any abatement, offset or deduction. If the Commencement Date occurs on other than the first day of a calendar year, Annual Rent for the period from the Commencement Date to the last day of the year in Whirh the Commencement Date occurs will be prorated based on a three hundred sixty-five (365) day year and must be paid on the Commencement Date. 4.3 Place for Payment of Rent. All rent due and payable under this Lease must be paid to Landlord at the Department of State Lands, 20300 Empire Avenue Suite #1, Bend, OR 97701, Attention: Eastern Region Manager, or such other place as Landlord may from time to time designate by written notice given to Tenant. 4.4 Rent Redetermination. 4.4.1 If Tenant's Master Development Plan is approved and Tenant receives land use approvals allowing development of the Destination Resort, the Annual Rent will be adjusted as part of the renegotiation of lease terms provided in Section 5.2.2. State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 7 of 35 4.4.2 If land use approvals have not been obtained but Tenant elects to exercise its option to renew the Lease as granted in Section 3.2, the Annual Rent will be adjusted as described in this section prior to the beginning of each additional Term. Adjustments to the Annual Rent under this paragraph will be based on the then current fair market value of the bare Land as determined by the parties' agreement and if no such agreement can be reached then by an MAI certified appraiser selected by Tenant and approved by Landlord. 4.4.3 Selection of an appraiser must occur not later than three months prior to the beginning of Construction Work or the end of each Term, as the case may be. If Tenant and Landlord cannot agree on the selection within one (1) month after the appraiser has been selected, the parties may seek alternative dispute resolution pursuant to Section 15.1. If alternative dispute resolution is unsuccessful Landlord will select a qualified and certified appraiser to conduct the appraisal. In any event, the costs of the appraisal will be shared equally by Tenant and Landlord. 4.5 No Partnership and No Principal-Agent Relationship. Nothing in this Lease may be construed to render Landlord in any way or for any purpose a partner, joint venturer, or associate in any relationship with Tenant other than that of Landlord and Tenant, nor may the Lease be construed to authorize either to act as agent for the other except as expressly provided to the contrary herein. Further, Tenant is not an "officer," "employee," or "agent" of Landlord, as those terms are used in ORS 30.265. ARTICLE 5 Uses of the Premises 5.1 Approved Uses. 5.1.1 The Premises may be improved, used and maintained by Tenant for "open space" only. For purpose of this Lease, the term "open space" means lands used for agricultural or forest purposes and any use that is limited to, and in practice does: a) conserve and enhance natural or scenic resources; b) protect air, streams or water supply; c) promote conservation of soils, wetlands, beaches or marshes; d) develop and conserve !andscaped areas in a way that minimizes pollution and enhance the value of adjoining or neighboring property; e) enhance the value to the public of adjoining or neighboring parks, forests, wildlife preserves, nature reservations or other open space; f) enhance recreation opportunities; g) preserve historic, geological and archeological sites; h) promote orderly urban development; outside the Premises; and i) minimize conflicts between farm and non-farm uses. 5.1.2 In addition to use of the Premises for "open space" purposes, Tenant is specifically authorized to construct, consistent with zoning and land use requirements, a paved road on the Premises in the general location described in Exhibit B attached hereto, for the purpose of obtaining access to and from Tenant's adjacent properties. State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 8 of 35 5.1.3 Use and development of the Premises will be stated in the "Memorandum of Lease" between Tenant and Landlord attached hereto and made a part of this Lease as Exhibit C. In the event of conflict between the "Memorandum of Lease" and the Lease, the Lease will be the controlling document. 5.1.4 Tenant must ensure that any use of the Premises complies at all times during the Term with all applicable laws and regulations, including but not limited to all building restrictions and regulations and zoning laws, ordinances, resolutions and regulations and all ordinances, regulations and orders of all boards, bureaus, commissions and bodies and any county, state or federal agency, now having, or hereafter having acquired, jurisdiction of the Premises and the use and improvement thereof. 5.2 Master Development Plan for Destination Resort, Associated Residential and Commercial Development. 5.2.1 Within three years after the Commencement Date and prior to beginning any Construction Work Tenant may develop and submit to Landlord for Landlord's approval a Conceptual Master Development Plan for the Land to govern Tenant's efforts to obtain a change in land use and future construction and development of the Land in conjunction with Tenant's Destination Resort. Landlord's approval of the Conceptual Master Development Plan may be granted or withheld in Landlord's sole and absolute discretion. Upon Landlord's approval of the Conceptual Master Development Plan, Tenant is authorized to seek a change in land use designation for the Premises in order to accommodate the Conceptual Master Development Plan. Landlord will cooperate with Tenant in submitting Tenant's application for such change in land use designation. 5.2.2 Following final land use approval, and prior to proceeding with Construction Work, Tenant shall submit a Final Master Development Plan for Landlord's approval, which consent shall not be unreasonably withheld, and Landlord and Tenant will have the right to modify or expand the Lease provisions, as appropriate, to provide for implementation of the Final Master Development Plan, including but not limited to renegotiation of the Term and Annual Rent. 5.2.3 All Construction Work must be in accordance with the Final Master Development Plan, and Tenant I nay make no iiimateriai change in the Final Master Development Plan without the prior written consent of Landlord, which consent may be granted or withheld in Landlord's sole and absolute discretion. Tenant must comply at all times with the Master Development Plan, and failure to comply with the terms and conditions of the Plan will be a material breach of the Lease. 5.3 No Impairment of Reversionary Rights. Tenant must not suffer or permit the Premises, or any portion thereof, to be used by the public, as such, in a manner which would permit a claim or claims of: a) adverse usage or adverse possession by the public, as such, or b) implied dedication of the Premises or any portion there of to the public, as such. State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 9 of 35 Any easements, dedications or other similar rights or obligations created or granted by Tenant may affect only Tenant's leasehold estate in the Premises and must not encumber or affect the Landlord's Fee Interest without Landlord's prior written consent. 5.4 No Use in Violation of Law. Tenant must not use or allow the Premises or any part thereof to be used or occupied for any purpose other than a use stated in Section 5.1 or, notwithstanding Section 5.1, for any unlawful purpose or in violation of any certificate of occupancy or l.El tIIICGIE GI compliance covering or CIIIC4U1IlJ, UIC Premises, or any part t11C1 0171, ar`IU It en ant IIIUSI not suffer any dangerous condition to exist on the Premises or any part thereof unless appropriately safeguarded, and Tenant must not do or suffer to be done any act on the Premises which, in law, constitutes a nuisance, public or private or which may make void or voidable any insurance then in force with respect thereto. Tenant will not be deemed to be in violation of the terms and provisions of this Section 5.3 as the result of acts or omissions of a Subtenant so long as Tenant is proceeding in good faith and with due diligence to correct or remedy such acts or omissions or to terminate the defaulting Subtenant's Sublease and regain possession of the Subtenant's premises. ARTICLE 6 Taxes and Utilities 6.1 Payment of Impositions. In addition to the Annual Rent required to be paid under this Lease, Tenant must pay or cause to be paid, and Tenant hereby agrees to pay, Tenant's share of all Impositions falling due or applicable during the Term and any extended Term, if applicable. Any and all Impositions and installments of Impositions required to be paid by Tenant under this Lease must be paid by Tenant within fifteen (15) days of delivery to Tenant of Landlord's written request for payment or, if notice is provided directly to Tenant, before each such Imposition or installment becomes delinquent, and a true and correct copy of the official receipt for the payment of such Impositions must be delivered to Landlord within fifteen (15) calendar days after payment has been made. The payment of Impositions and all other sums required to be paid by Tenant under this Lease will constitute additional rent. 6.2 Change in Method of Taxation. If at any time during the Term the methods of taxation in effect on the Commencement Date are altered so that the whole or any part of the Impositions commonly considered as real estate taxes now levied, assessed or imposed on real estate and the improvements thereon are discontinued and as a substitute therefor, or in addition thereto, taxes on the rent derived from the Premises are imposed upon Landlord and the purpose of the new tax is more closely akin to that of an ad valorem or use tax than to an income or franchise tax on Landlord's income, then all such substitute taxes, assessments, levies, impositions or charges, to the extent that they are so measured or based, will be deemed to be included within the term "Impositions" for the purposes hereof, to the extent that such substitute taxes would be payable if the Premises were the only property of Landlord subject to such tax. Tenant must pay and discharge the substitute tax or additional tax, as the case may be, upon receipt from Landlord of a statement setting forth in reasonable detail the basis on which the substitute tax constitutes an "Imposition" hereunder and the calculation of the amount due. 6.3 Impositions Payable in Installments. If, by law, any Imposition levied on or assessed against the Premises, and/or Tenant's interest therein, may, at the option of the taxpayer, State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 10 of 35 be paid in installments, then Tenant will have the option of paying such Imposition or special or general assessment in installments as the same become due. The fact that the exercise of the option to pay the Imposition or assessment in installments will cause interest to accrue on the Imposition or assessment is immaterial and will not interfere with the free exercise of the option by Tenant. Landlord will cooperate with Tenant and on written request of Tenant execute or join with Tenant in executing any instruments required to permit. any such tax or special or general assessment to be paid in installments. 6.4 Impounds. 6.4.1 If an Event of Default of a nature or kind that has previously occurred and been cured reoccurs at any time during the Term, Landlord, at Landlord's option, will have the right to require Tenant to deposit monthly with a commercial banking institution selected by Landlord (the "Depository"), to be held in a separate account (the "Deposit Account'), bearing interest at rates then prevailing for such type account: a) one-twelfth (1/12th) of the annual Impositions, and insurance premiums required hereunder, and b) an additional sum which when added to the monthly deposits thereafter to be made will be sufficient to pay such Impositions and insurance premiums when they become due. The agreement with the Depository establishing the Deposit Account must provide that checks drawn thereon may be signed by either a representative of Landlord or a representative of Tenant if drawn to the order of the Governmental Authority to whom Impositions are payable or to the broker or insurer to whom insurance premiums are payable, and that checks drawn thereon must be signed by a representative of Landlord and a representative of Tenant if drawn to the order of any other person or entity. 6.4.2 In the event that the amount of Impositions or insurance premiums is not fixed at the time when any such monthly deposit is required to be made, Tenant must make such deposit based upon the amount of the Impositions levied or assessed and the amount of insurance premiums paid for the immediately preceding calendar year, subject to adjustment as and when the amount of such Impositions and insurance premiums are ascertained. All sums deposited in the Deposit Account must be applied to the payment of Impositions and insurance premiums in the months during which such Impositions become due and payable each year. The interest earned on the Deposit Account must be credited against the next monthly deposit instaiimeni coming due. Ali costs and expenses of the Depository in maintaining the Deposit Account must be paid by Tenant. 6.4.3 Nothing herein contained will relieve or release Tenant from the absolute obligation to pay directly to the tax officials or authorities all Impositions when due, in the event Tenant fails to furnish Landlord with the bills, and deposits, if any, required to be furnished pursuant to the foregoing. 6.5 Right to Contest Impositions. Tenant may contest, oppose, or object to the amount or validity of any Imposition levied on or assessed against the Premises, Improvements, and/or Tenant's interest therein, or any part thereof. Tenant must give written notice of the contest, opposition, or objection to Landlord within a reasonable time prior to the time such contest is filed. Unless Landlord's joinder is required as a jurisdictional matter or by any law, rule or regulation in State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 11 of 35 order to make such action or proceeding effective (and in such event Landlord will join solely for the purpose of allowing Tenant to proceed with its contest and Tenant must pay the costs incurred by Landlord in connection with such joinder; provided, however, no such joinder will preclude Landlord from supporting any valuation of the Premises made for the purposes of assessing taxes thereon which valuation Tenant has elected to contest), Landlord may not be required to join in or cooperate in any such contest, opposition or objection, nor may Landlord be required to expend any monies in this connection, nor will Landlord be liable for any costs or expenses incurred or awarded in the proceeding. Further, rio such contest, opposition, or objection may be com menced, continued or maintained after the date on which the Imposition, assessment, or other charge being contested becomes delinquent unless Tenant has either: a) Paid such Imposition, or other charge under protest prior to delinquency; or b) Obtained and maintained a stay of all proceedings for enforcement and collection of the tax, assessment, or other charge by posting such bond or other security required by law for such a stay; or c) Delivered to Landlord good and sufficient security in an amount specified by Landlord for the payment by Tenant of the Imposition, assessment, or charge together with the amount of any fines, interest, penalties, costs, and expenses that may have accrued or been imposed thereon in connection with Tenant's contest, opposition, or objection to such Imposition, or other charge. Any rebate or refund of Impositions by reason of such contest will be paid to Tenant. 6.6 Tax Returns and Statements. Tenant will, as between Landlord and Tenant, have the duty of preparing, making, and filing any statement, return, report, or other instrument required or permitted by law in connection with the determination, equalization, reduction, or payment of any taxes, special or general assessments, or other charges that are or may be levied on or assessed against the Premises, any portion of the Premises, any interest in the Premises, any Improvements or other property on the Premises. 6.7 Tax Indemnification and Hold Harmless Clause. Tenant must indemnify and hold Landlord and the Premises free and harmless from any liability, loss, cost or expense incurred by Landlord as a result of Tenant's failure to pay the Impositions or other charges as required by this Lease to be paid by Tenant and from all interest, penalties, and other sums imposed thereon and from any sale or other proceeding to enforce collection of the Impositions or other charges. fi.R t Itilities. Tenant must pay or cause to be paid and hold Landlord and the Premises, free and harmless from all charges for the furnishing of Utilities to the Premises and Improvements during the Term and for the removal of garbage and rubbish from the Premises and Improvements during the Term. 6.9 Payment by Landlord. Should Tenant fail to pay within the time specified in this Lease any Impositions, Utilities or other charges required by this Lease to be paid by Tenant, or should Tenant fail to commence to contest such taxes, assessments, or other charges pursuant to this Article 6 hereof, then Landlord may, after prior written notice to Tenant and all Leasehold Mortgagees advising Tenant of its intention to do so (except that no prior written notice will be required if an emergency exists or if, during the time required to give such notice, additional penalties would be incurred), pay, discharge, or adjust such Impositions, Utilities or other charges for the benefit of Tenant. In such event, Tenant must promptly on written demand of Landlord State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 12 of 35 reimburse Landlord for the full amount paid by Landlord in discharging or adjusting such tax, assessment, Utilities or other charge together with interest thereon at the Late Payment Rate from the date of payment by Landlord until the date of repayment by Tenant. Where no time within which any charge required by the Lease to be paid by Tenant is specified in this Lease, such charge must be paid by Tenant before it becomes delinquent. ART!C E 7 Construction 7.1 Conditions to Construction. Prior to approval by Landlord and local planning authorities of the Master Development Plan, Tenant may construct, to the extent consistent with local zoning and land use requirements, a paved road in the approximate location shown on Exhibit B. Following approval by Landlord and local planning authorities of the Master Development Plan, Tenant may construct other Improvements on the Premises, provided that all such Improvements are consistent with the Approved Uses described in Section 5.1 and the Master Development Plan and provided further that all such Improvements are constructed in accordance with this Article 7. 7.2 Conditions to Construction. Prior to commencement of any Construction Work for any Improvements started after the Commencement Date of the Lease, and before any building materials have been delivered to the Premises by Tenant or under Tenant's direction or authority, Tenant must comply with the following conditions or obtain Landlord's written waiver of the condition or conditions specified in the waiver: a) Preliminary Plans. Tenant must deliver to Landlord for Landlord's reasonable approval, one (1) set of preliminary construction plans and specifications (Preliminary Plans) at least sixty (60) calendar days prior to the proposed date for commencing the Construction Work. The Preliminary Plans must be prepared by a design professional or engineer licensed to practice as such in Oregon. The Preliminary Plans must include, as applicable, preliminary grading and drainage plans, soil tests, utilities, sewer and service connections, locations of ingress and egress to and from public thoroughfares and the curbs, gutters, parkways, street lighting, storage areas, plazas, public areas and landscaping and all other items customarily required by construction lenders to be included in plans and specifications for similar projects located in Deschutes County. b) Final Plans. Upon approvai of Landlord, which approval will not be unreasonably withheld, the Preliminary Plans will be designated the "Final Plans" and will serve as the basis for the Construction Work. c) Building Permit. Tenant must, at its own cost and expense: i. cause the Final Plans, or such appropriate parts thereof as may be necessary, to be filed with the appropriate governmental agencies ("Building Department"); and ii. as a condition to commencing any phase of construction for which a permit is necessary, obtain such permits. Promptly after issuance, a copy of each permit must be delivered to Landlord. After such permit or permits are issued based upon the plans previously approved by Landlord, Tenant must, at Tenant's sole cost and expense, proceed with diligence and continuity to carry out the Construction State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 13 of 35 Work in accordance with the Final Plans and the requirements of all applicable governmental agencies. Landlord agrees, if requested by Tenant, to join in any request for authorization or application in connection with Tenant's performance of the Construction Work on the Premises or conducting business thereon at no cost to Landlord. Tenant may deliver working drawings and plans to any governmental body, or Institutional Lender, in connection with its application for a building permit or other permits provided that the same are first delivered to Landlord for approval as herein provided. 7.3 Contractor. All Construction Work must be performed by licensed, bondable, reputable Contractors registered with the Construction Contractors Board as required in ORS chapter 701. 7.4 Compliance With Law and Quality. The Construction Work must be performed in accordance with all statutes, ordinances, regulations, and orders of all federal, state, county, or local governmental agencies or entities having jurisdiction over Construction Work, the Premises, and the Improvements. All Construction Work performed on the Premises pursuant to this Lease, or authorized by this Lease, must be done in a good and workmanlike manner, and only with materials of good and durable quality. 7.5 Completion. Tenant must cause all Construction Work to be diligently pursued without unnecessary interruption. 7.6 Inspection. Landlord has the right, but not the obligation, to inspect the Premises in relation to the Construction Work at all reasonable times during normal business hours, upon reasonable prior notice to Tenant. Landlord's inspections must not unreasonably interfere with the. progress of such Construction Work. This Section will in no way control any right of governmental inspection necessary and permitted under applicable codes and ordinances. 7.7 Tenant's Construction Indemnity. Tenant agrees to defend, indemnify and hold harmless Landlord, and its officers, employees, and agents from and against any and all loss, costs and expenses, including reasonable attorneys, fees, damages or injury, incurred or suffered by Landlord and arising from, relating to, or occurring in connection with the Construction Work, excluding any loss, costs or expenses arising from the gross negligence or willful misconduct of Landlord or Landlord's officers, employees, or agents. 7.8 Construction by Subtenants. Tenant agrees that in the event it elects to allow a Subtenant to perform any Construction Work on the Premises, the provisions of this Article 7 will be included in the Sublease and the Construction Work must comply with this Article. Further, Tenant will remain fully liable and responsible for Completion of the Construction Work in compliance with all the provisions of this Lease. State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 14 of 35 ARTICLE 8 Liens and Mortgages 8.1 No Liens Permitted On Reversion. Tenant may not create or permit to be created or to remain, by its acts or omissions or the acts or omissions of its Subtenants, contractors or subcontractors, and Tenant will discharge, any lien, encumbrance or charge which might be or become a lien, charge, or encumbrance on the fee interest of Landlord or any part thereof and will also discharge any lien levied ors account of any Imposition or any mechanic's, laborer's cr materialman's lien, mortgage, conditional sale, title retention agreement, security agreement or otherwise which might be or become a lien, encumbrance or charge upon the fee interest of Landlord or any part thereof and which has any priority or preference over or ranks on a parity with the estate, rights and interest of Landlord in the Land or any part thereof; provided, however, nothing herein requires payment by Tenant of any lien or encumbrance on the Premises created by Landlord's acts or omissions or which is imposed upon Landlord by reason of Landlord's ownership of the fee estate (other than the Impositions) regardless of the tenancy of Tenant and not caused by the acts or omissions of Tenant. Tenant further agrees that Tenant will not, except as in this Lease provided, suffer or create any other matter or thing whereby the reversionary estate, rights and interest of Landlord in the Premises or any part thereof might be impaired; and any Imposition must, after the same becomes a lien on the Premises, be paid (or contested) by Tenant in accordance with Article 6 hereof, and any mechanic's, laborer's or materialman's lien incurred by Tenant must be discharged (or contested) in accordance with Section 8.2 below. 8.2 Mechanic's Liens. If any mechanic's, laborer's or materialman's lien is at any time recorded against the Premises or any part thereof, Tenant must immediately provide a copy of such claim of lien to Landlord and, within twenty (20) business days after notice to Tenant of such lien or claim of lien, must cause the same to be discharged of record by payment, deposit, bond, order of a court of competent jurisdiction or otherwise. If Tenant fails to cause such lien to be discharged as required under this section, then, in addition to any other right or remedy which Landlord may have under this Lease or otherwise, Landlord may, but will not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by deposit or by bonding proceedings, and in any such event Landlord will be entitled, if Landlord so elects, to defend the prosecution of an action for the foreclosure of such lien by the lienor and to pay the amount of any judgment in favor of the lienor with interest, costs and allowances included in such judgment, and recover such sums plus interest from Tenant. 8.3 No Implied Consent. Nothing contained in this Lease may be deemed or construed in any way as constituting the consent or request of Landlord, express or implied by inference or otherwise, to any contractor, subcontractor, laborer or materialman for the performance of any labor or the furnishing of any materials for any specific improvement, alteration to or repair of the Premises or any part thereof, nor as giving Tenant any right, power or authority to contract for or permit the rendering of any services or the furnishing of any materials that would give rise to the filing of any lien against the Landlord's interest or any part thereof if not paid. State of Oregon to Thornburgh Resort Co LLC . 33991-S U Page 15 of 35 ARTICLE 9 Maintenance and Repairs 9.1 Maintenance by Tenant. Throughout the Term, Tenant, at its sole cost and expense, will take good care of the Premises and its improvements and will keep the same in good order and condition and make all necessary repairs and environmental remediation as required by Section 16.4, , all to the effect that throughout the Term the Premises and its Improvements are maintained in good condition, less normal wear and tear, and suitable for their intended use. 9.2 Requirements of Governmental Authorities. At all times during the Term, Tenant, at Tenant's own cost and expense, must: a) Make all alterations, additions, or repairs to the Premises and/or the Improvements required by the terms of any applicable law, ordinance, statute, order, or regulation now or hereafter made or issued by any Governmental Authority; including, without limitation, Title III of the Americans with Disabilities Act of 1990, all regulations issued thereunder and the Accessibility Guidelines for Buildings and Facilities issued pursuant thereto, as the same are in effect on the Commencement Date and as may be hereafter modified, amended or supplemented. b) Observe and comply with all applicable laws, ordinances, statutes, orders, and regulations now or hereafter made or issued respecting the Premises and/or the Improvements by any Governmental Authority; c) Defend, indemnify and hold Landlord and the Premises free and harmless from any and all liability, costs, damages, fines, penalties, claims, and actions resulting from Tenant's failure to comply with or perform the requirements of this Section 9.2. 9.3 No Duties on Landlord. Landlord will not be required to furnish any services or facilities whatsoever or to make any repairs or alterations in or to the Premises or the Improvements. Tenant hereby assumes the full and sole responsibility for the condition, operation, repair, replacement, maintenance, development and management of the Premises and the Improvements throughout the entire Term. ARTICLE 10 Ownership of Improvements 10.1 Ownership of Improvements During Term. All Improvements at any time constructed on the Premises by Tenant must be owned by Tenant or Subtenants until expiration of the Term hereof or sooner termination of this Lease as herein provided. Tenant or Subtenants or any successors to their rights may not remove any Improvements from the Premises nor waste, destroy, or modify any Improvements except as permitted by this Lease. Tenant may place fixtures, partitions, personal property, and the like on the Premises and may make nonstructural improvements and alterations to the Premises at its own cost and expense without approval from Landlord. 10.2 Ownership at Termination. Upon expiration or termination of this Lease, Landlord will have the option of acquiring all Improvements added to the Premises by Tenant upon paying Tenant the current fair market value for such Improvements, which fair market value is to be State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 16 of 35 determined by a licensed appraiser selected by Tenant and approved by Landlord; or, with the consent of Landlord, which consent will not be unreasonably withheld, Tenant may sell such Improvements to future leaseholders, remove any Improvements that Landlord declines to buy, or leave such Improvements. When any Improvements are removed, Tenant must restore the Premises to as good a condition as the same were when first occupied by Tenant less normal wear and tear. Any Improvements not removed by Tenant upon the termination of this Lease will become and remain the property of Landlord. The cost for an appraisal will be shared equally by ,ho "r i-s. " N ARTICLE 11 Insurance 11.1 Commercial General Liability Insurance. 11.1.1 Concurrent with the execution of this Lease, Tenant, at Tenant's sole expense, must procure and must thereafter maintain in full force and effect throughout the entire Term, Commercial General Liability insurance against claims for injury or death to persons or damage to property occurring on or about the Premises with minimum limits of liability of $1,000,000 combined single limit for each occurrence. Such insurance must include, but not be limited to, Bodily Injury Liability, Personal Injury Liability, Property Damage Liability, Broad Form Property Damage Liability, Fire Legal Liability, Contractual Liability, Products/Completed Operations Liability, and Liability for Property of Others in the care, custody, and control of Tenant. 11.1.2 The liability insurance must cover all operations and activities of Tenant including, but not limited to, Tenant's own direct activities on and off the Premises, all construction, repair and improvement activities on and off the Premises and all explosion, collapse, and underground exposures associated with these activities. 11.2 Property Insurance. 11.2.1 Concurrent with the execution of this Lease, Tenant, at Tenant's sole cost and expense, must procure and must thereafter maintain in full force and effect throughout the entire Term, property insurance for the Improvements insuring all such Improvements against the risks of direct physical loss. Coverage must be written on an agreed amount basis equal to one hundred percent (100%) of the full replacement costs and without a coinsurance clause. 11.2.2 The property insurance required under this Section must include coverage for all demolition, contingent liability, and increased costs of construction as a result of the enforcement of any law, regulation, or ordinance that is in force at the time of the insured loss that requires the demolition of parts of the undamaged real property, or regulates the construction or repair of damaged real property. 11.2.3 The property insurance required under this Section must provide a waiver of subrogation in favor of Landlord. State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 17 of 35 11.2.4 "Full replacement costs" means the actual replacement cost of the Improvements. Full replacement costs must be determined from time to time at the request of Landlord by an appraiser, engineer, design professional or contractor designated by Landlord and approved in writing by Landlord and paid for by Landlord or Tenant (at the discretion of Landlord), but Landlord's failure to request a determination or redetermination of full replacement cost will not relieve Landlord or Tenant of its obligation to maintain the insurance required by the terms hereof. 11.2.5 The property insurance required under this Section must insure all of the Improvements constructed on or placed on the Premises, as well as any and all additions thereto, against loss or destruction by windstorm, cyclone, tornado, hail, explosion, riot, riot attending a strike, civil commotion, malicious mischief, vandalism, aircraft, fire, smoke damage, boiler and machinery damage and sprinkler leakage. Further, during construction, or demolition, or reconstruction, the property insurance must include "all risks" builders' risk insurance, with course of construction, vandalism, and malicious mischief clauses attached insuring the Improvements and all materials and equipment delivered to the site of the Improvements for their full insurable value, except in the event Tenant demonstrates to Landlord's reasonable satisfaction that the contractor for such work carries such "all risks" builder's risk insurance. 11.3 Additional Requirements. All insurance policies required under this Lease must include these additional provisions, conditions, and requirements: a) The Landlord must be named as additional insured on all policies. b) Tenant must provide Landlord written notice of any cancellation or material modification to the policies purchased by Tenant at least thirty (30) days prior to the effective date of such cancellation or change. c) Tenant must provide properly executed Certificates of Insurance to the Landlord at least ten (10) days prior to occupancy of the Premises and prior to commencement of any Construction Work, and thereafter, at least thirty (30) days prior to the effective date of any renewal or replacement policy. d) At its sole discretion, Landlord may require that true and certified copies of one or more insurance policies be provided to Landlord for its review and retention in its files. e) All policies of insurance must be issued by companies licensed or authorized to provide insurance in the State of Oregon. All such policies must be written by insurance companies that meet or exceed an A rating of A.M. Best Company or for those qualified companies that are not rated by A.M. Best Company a rating equivalent or better than an A.M. Best A rating. f) If Tenant fails or refuses to procure, pay for or keep in force the policies of insurance set forth herein, or to deliver evidence of such insurance to Landlord, Landlord may, at its election, place in force and/or from time to time renew such insurance. All amounts expended for such insurance, together with interest thereon at an annual rate of ten percent (10%) per annum, will be additional rent due from Tenant to Landlord payable within fifteen (15) days after invoices are delivered to Tenant. g) Tenant may purchase an Umbrella Liability Policy to provide the limits of coverage specified for Sections 11.1 and 11.2 so long as such policy provides coverage at least as broad as specified for the individual policies, is equivalent or in excess of the limits State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 18 of 35 specified for each individual policy, and the policy applies directly above (without gap in limit of liability) the individual underlying policy. h) Unless otherwise specifically agreed in writing by the Landlord prior to the effective date of the policy(ies): i. All liability insurance policies must be written on an occurrence coverage basis; ii. All insurance policies must be non-assessable; iii. All property insurance -dides purchased by Tenant must contain or be endorsed acknowledging that the insurer waives its rights of subrogation against Landlord; and iv. All insurance policies procured by Tenant must be primary and non contributing with any insurance that may be carried by Landlord. i) At the termination of this Lease for whatever reason, in the event Tenant is able to assign to Landlord its right, title, and interest in the insurance policies required to be maintained hereunder, and provided Landlord agrees to such assignment, Landlord will reimburse Tenant pro rata for all advanced premiums paid on such insurance. j) All property insurance must be specifically acknowledged and endorsed by the insurer whereby the insurer agrees to make any and all payments as applicable under such policies payable to Tenant and Landlord jointly. 11.4 Tenant's Duty to Repair and Restore. 11.4.1 Tenant must promptly give written notice to Landlord of any casualty that results in damage or destruction to the Improvements or the Premises. Tenant, at its sole cost and expense, using available insurance proceeds, settlement funds and other funds at Tenants disposal, must restore, repair, replace or rebuild the same as nearly as possible to its condition and character immediately prior to such damage or destruction, including temporary repairs and work necessary to protect the Premises and the Improvements from further injury, and/or with such changes or alterations as may be made at Tenant's election in conformity with and subject to the conditions of Article 7 of this Lease (all of the foregoing collectively being referred to as "Restoration"). 11.4.2 Restoration must be commenced promptly (giving due regard to the length of time required to adjust any loss with insurer) and prosecuted with reasonable diligence, Unavoidable Delays excepted. If, as a result of Property Insurance provided pursuant to Section 11.2, Landlord receives any paynieni for the casuaity that resulted in [lie damage or destruction ("Insurance Proceeds"), Landlord will make such Insurance Proceeds available to Tenant for use in the Restoration. 11.4.3 The Insurance Proceeds that are payable to Tenant must be held in trust by Tenant to pay for the cost of Restoration. Upon completion of the Restoration, Tenant must promptly deliver to Landlord a statement setting forth a concise description of the Restoration performed and proof of payment therefore. Any excess Insurance Proceeds (except those received by Landlord as a result of Property Insurance provided pursuant to Section 11.2) may be retained by Tenant or paid to any Leasehold Mortgagee if permitted or required under any Leasehold Mortgage. State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 19 of 35 11.4.4 The Insurance Proceeds payable to the Insurance Trustee must be held in trust to be applied to the payment of the cost of the Restoration and must be paid out upon such terms and conditions (which terms and conditions must include, as a minimum, the requirements of subsections (a) and (d) below) as may be established by any Leasehold Mortgagee, or if no Leasehold Mortgage is then in effect, then from time to time as such Restoration progresses within twenty (20) days after written request of Tenant which must be accompanied by a certificate signed by Tenant or Tenant's duly authorized representative and the Design Professional in charge of the Restoration, dated not more than thirt'y' k,)V) calendar days prior to such request, setting forth the following: a) That the sum then requested either has been paid by Tenant, or is justly due to contractors, subcontractors, materialmen, engineers, design professionals or other persons who have rendered services or fumished materials for the Restoration, and giving a brief description of such services and materials and the several amounts paid or due to each person in respect thereof, and state that nor part of such expenditures has been or is being made the basis in any previous or then pending request for the withdrawal of Insurance Proceeds and that the sum then requested does not exceed the value of the services and materials described in the certificate; b) That except for the amount, if any, stated pursuant to the foregoing subsection (a) in such certificate to be due for services or materials to the particular supplier, there is no outstanding indebtedness of Tenant to the particular supplier known to persons signing such certificate which is then due for labor, wages, materials, supplies or services in connection with such Restoration, which, if unpaid, might become the basis of a vendor's mechanic's, laborer's or materialman's statutory or similar lien upon such restoration or upon the Premises; c) That the costs, as estimated by the persons signing such certificate, of the Restoration required to be done subsequent to the date of such certificate in order to complete the same, do not exceed the Insurance Proceeds, plus any amount deposited by Tenant to defray such cost and remaining in the hands of the Insurance Trustee after payment of the sum requested in such certificate. If there is a deficiency, Tenant must forthwith deposit with the Insurance Trustee the amount needed to be segregated from the Insurance Proceeds and expended only after the Insurance Proceeds have been exhausted; and d) That there has not been filed with respect to the Premises or any part thereof any vendor's, mechanic's, laborer's, materialman's or other claim of lien which has not been discharaed of record, except such as will be discharoed by payment of the amount then requested subject to Tenant's right to contest as provided in Section 8.2. 11.4.5 Upon compliance with the foregoing provisions of this Section 11.4, the Insurance Trustee must, out of the monies held by the Insurance Trustee, pay or cause to be paid to Tenant or the persons named in the certificate referenced above, the respective amounts stated therein to have been paid by Tenant or to be due to them, as the case may be. 11.4.6 Upon receipt by the Insurance Trustee of satisfactory evidence of the character required by this Section 11.4 that the Restoration has been completed in the manner required under the terms of this Lease and has been paid for in full and that there are no liens of the character referred to therein, any balance of the Insurance Proceeds at State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 20 of 35 the time held by the Insurance Trustee must be paid to Tenant or to any Leasehold Mortgagee. 11.5 Destruction Near End of Term. If any Improvements are substantially or totally destroyed by fire or other casualty of any kind or nature and the estimated cost of the restoration is seventy five percent (75%) or more of the value of the replacement cost of the Improvement(s) so damaged or destroyed, then notwithstanding any requirement to the contrary in this Article, Tenant will not be required to restore the i i provemment(s) if to do so 'would no', be coMMercially viable provided that, within one hundred twenty (120) calendar days after such destruction or damage, Tenant provides Landlord written notice of Tenant's intent not to restore, and provided further that, simultaneously with the giving of such notice, Tenant must first pay in full any Leasehold Mortgage that is secured by Tenant's interest in this Lease or the Improvement(s) and then restore the Premises on which the Improvement(s) were situated to as good a condition as the same were when first occupied by Tenant less normal wear and tear. If any Insurance Proceeds remain after (1) paying in full any Leasehold Mortgage that is secured by Tenant's interest in this Lease or the Improvements(s); (2) restoring the Premises on which the Improvement(s) were situated to as good as condition as the same were first occupied by Tenant less normal wear and tear; and (3) compensating Tenant for its investment in the Improvement(s) in an amount not to exceed the fair market value of the Improvement(s); all such remaining proceeds will be payable to Landlord and Tenant in proportion to their interests. ARTICLE 12 Mortgage, Assignments and Subleasinq 12.1 Leasehold Mortgage. If Tenant is not then in default under this Lease, Tenant may, with the prior written consent of Landlord and subject to the terms and conditions as may reasonably be imposed, dispose of all or any portion of Tenant's interest under this Lease and the leasehold estate hereby created to any trustee by way of a deed of trust in favor of any Leasehold Mortgagee, for the purpose of creating an encumbrance on such interest. 12.2 Assignments. With Landlord's prior written consent, which consent will not be unreasonably withheld, Tenant may assign its interest in the Lease to a third party. Any assignment will be subject and subordinate to Landlord's rights under this Lease. Any assignment must be in writing, must be on a form provided by Landlord, and must include a non-refundable assignment processing fee payable to Landlord of $250.00. Upon Landlord's acceptable of the proposed assignee and the assumption by the assignee of all obligations of Tenant under the Lease, Landlord will release Tenant from any further obligation or liability under this Lease. 12.3 Subleases. 12.3.1 With Landlord's prior written consent, which consent will not be unreasonably withheld, Tenant may Sublease all or any portion of the Premises for use in accordance with the Approved Uses and may extend or renew any Sublease with Landlord's prior written consent. No Sublease will release Tenant from any obligation or liability under this Lease. All such Subleases will be subject and subordinate to Landlord's rights under this Lease, and must be for Approved Uses under this Lease. All Subleases must be for a term or terms that will expire before the expiration of the Term. State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 21 of 35 12.3.2 All Subleases must be in writing, must be on an Approved Sublease Form and must contain such provisions as the Landlord may in its sole discretion require, including but not limited to: a) a clause stating the uses permitted to be made of the Premises covered by the Sublease; b) clauses setting out commercially reasonable terms as of the date of execution; c) a provision for payment of rent that is equal to or greater than the reasonable commercial rental value of the subleased premises over the term of the Sublease and given the terms of the Sublease; d) a clause prohibiting assignment or transfer of all or any portion of the Sublease without the prior written consent of the Tenant; and e) clauses requiring such insurance or bonding as the Landlord, in its sole discretion, determines to be advisable. 12.3.3 Tenant must deliver to Landlord true copies of each Sublease not later than ten (10) days after the same has been executed and delivered by the parties. 12.3.4 Tenant must first obtain the express written consent of Landlord, which consent will not be unreasonably withheld, according to the procedure set forth in this section, before: a) selling, assigning, or in any other manner transferring this Lease or any interest in this Lease; b) assigning or Subleasing all or any portion of Premises; or c) consenting to the assignment or transfer of all or any portion of a Sublease or interest in a Sublease by a Subtenant. Without the prior written consent of Landlord, Tenant may not sell, assign, sublet, or in any manner transfer any of Tenant's interest in this Lease, in any Sublease or in the Premises. 12.3.5 Twenty (20) calendar days before the proposed commencement date of a proposed Sublease, Tenant must submit to Landlord an accurate and complete copy of the proposed Sublease and any information that the Tenant possesses, or the Landlord requests, regarding the proposed Sublessee. Following Landlord's receipt of the proposed Sublease and all relevant information regarding the proposed Sublessee, Landlord will have twenty (20) calendar days in which to: a) review the proposed Sublease and all relevant information; and b) request clarifications of and modifications to the terms and conditions of the proposed Sublease and such further or additional information as Landlord deems necessary. If Landlord requests supplementary information concerning the proposed sublease or the proposed sublessee, Landlord will have an additional ten (10) calendar days, following receipt of this information, in which to review Tenant's proposal. 12.3.6 In reviewing and approving or disapproving a proposed Sublease and the suitability of a proposed Sublessee, Landlord may consider any factor that Landlord, believes to be reasonably relevant to its decision, including but not limited to such factors as environmental, economic, cultural, and political concerns, anticipated financial benefit to the State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 22 of 35 Common School Fund, and whether the proposed sublease offers the best means of obtaining from the Premises the greatest benefit for the people of Oregon. 12.3.7 Without in any way limiting the generality of the foregoing factors that Landlord may consider, Landlord may in particular inquire into each prospective Subtenant's: a) the exact business form of each such Subtenant entity and the identity of all pr ind-Is and nff;ners in each entity, with identifiratinn of the rnerson nr nar_,nn.S having signature authority for each entity; b) each Subtenant entity's experience in carrying out similar commercial activities; c) the capitalization of each proposed Subtenant and certified copies of all pertinent financial information for the last three (3) years, (for example, balance sheets, income statements, tax returns, etc.);d) the bonding capacity, if any, of each proposed Subtenant; e) references for each proposed Subtenant and each proposed Subtenant's principals, i.e., parties with whom the proposed Subtenant has been transacting business over the last three (3) to five (5) years and the opinion of such business associates/acquaintances regarding the proposed Subtenant and its principals; f) a Dun and Bradstreet or other credit company report on each proposed Subtenant; g) personal financial information on each proposed Subtenant's principals, including copies of tax returns for the last three (3) years and information regarding whether such principals have filed for bankruptcy protection at any time during the past seven (7) years; and h) criminal records check for each proposed Subtenant and its principals, particularly for any environmental crimes and anything else which would tend to cast an unfavorable light on the integrity or business ethics of the principals of each proposed Subtenant. 12.3.8 Following its review of the proposed sublease and the proposed Subtenant, Landlord will, within the time periods set forth above, approve or disapprove Tenant's proposal. If Landlord approves a proposed Sublease, Landlord will provide Tenant with a written consent. Unless and until Tenant obtains such written consent from Landlord, any proposed Sublease will not be effective and any Sublease entered into by T ei iai ii without first obtaining Landlord's express prior written consent will be null, void, and of no effect. Notwithstanding Landlords approval of Tenant's proposed Sublease, Tenant will remain ultimately responsible for performance of all of Tenant's obligations and duties under this Lease. State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 23 of 35 ARTICLE 13 Tenant's Default 13.1 Events of Default/Cure and Termination. The occurrence of any of the following events will be an "Event of Default": a) If Tenant fails to pay any installment of Annual Rent or additional rent when and as the same become due and payable and, as to any other sums required to be paid by Tenant under this Lease, when and as the same become due and payable, and such failure continues for a period of ten (10) calendar days after written notice given by Landlord to Tenant; b) If Tenant fails to perform or comply with any of the covenants, agreements, terms or conditions contained in this Lease and such failure continues for a period of thirty (30) calendar days, after written notice given by Landlord to Tenant; c) The subjection of any right or interest of Tenant under this Lease to attachment, execution, or other levy, or to seizure under legal process; d) The appointment of a receiver to take possession of the Premises and/or Improvements or of Tenant's interest in the leasehold estate or of Tenant's operations for any reason, including but not limited to, assignment for the benefit of creditors or voluntary bankruptcy proceedings, but not including receivership: i. pursuant to administration of the estate of any deceased or incompetent Tenant or of any deceased or incompetent individual partner of any Tenant, or ii. pursuant to a Leasehold mortgage, or iii. instituted by Landlord, the event of default being not the appointment of a receiver at Landlord's instance but the event justifying the receivership, if any; e) An assignment by Tenant for the benefit of creditors or the filing of a voluntary petition by or against Tenant under any law for the purpose of adjudicating Tenant as bankrupt; or for extending time for payment, adjustment or satisfaction of Tenant's liabilities to creditors generally; or for reorganization, dissolution, or arrangement on account of or to prevent bankruptcy or insolvency; f) Tenant's failure to comply with Hazardous Materials Laws or with any requirement in Article 16; g) Tenant's failure to procure, maintain or qualify for such insurance as Landlord may from time to time require in accordance with the provisions of Article 11. 13.2 Notice to Certain Persons. Refnre purst jinn arny remedy, Landlord will give notice r . ..7 J, of any Event of Default to Tenant and to all Subtenants who have requested the same from Landlord, and Leasehold Mortgagees, if any, whose names and mailing addresses were previously given to Landlord. 13.3 Landlord's Remedies. If any Event of Default by Tenant continues uncured, following notice of default as required by this Lease (if any is required), for the period applicable to the default under the applicable provision of this Lease, Landlord has the following remedies in addition to all other rights and remedies provided by law or equity, to which Landlord may resort cumulatively or in the alternative: a) Termination. Landlord may at its election terminate this Lease by giving Tenant notice of termination. State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 24 of 35 b) Right of Reentry and Ejection. Landlord may reenter, take possession of the Premises and Improvements and eject all parties in possession or eject some and not others or eject none and may remove any persons or property by legal action or by self-help with the use of reasonable force and without liability for damages and without having accepted a surrender. c) Reletting. Following reentry or abandonment, Landlord may relet the Premises and in that connection may make any suitable alterations or refurbish the Premises, or both, or change the character or use or purpose of the Premises but Landlord %ntill not ho ragiiirr ri to relet for any use or purpose other than that specified in the Lease or which Landlord may reasonably consider injurious to the Premises, or to any tenant that Landlord may reasonably consider objectionable. Landlord may relet all or part of the Premises, alone or in conjunction with other properties, for a term longer or shorter than the Term, upon any reasonable terms and conditions, including the granting of some rent-free occupancy or other rent concessions. Landlord will be entitled to all rents from the use, operation, or occupancy of the Premises or Improvements or both. d) Damages. Whether or not Landlord cancels, takes possession of or relets the Premises, Landlord has the right to recover its damages, including without limitation, (i) all lost rentals; (ii) all costs incurred by Landlord in restoring the Premises or otherwise preparing the Premises for reletting; (iii) and all costs incurred by Landlord in reletting the Premises; provided that, the amount Landlord may recover that represents damages for lost rental will be limited to: (i) all rent that was due to the date of termination, plus (ii) all amounts of rent that would have fallen due as rent for the six month period following the date of termination, less (iii) the amounts recovered by Landlord from relettings or attornments, if any, plus (iv) interest on the balance at the Late Payment Rate. 13.4 Right To Sue More Than Once. Landlord may sue periodically to recover damages during the period corresponding to the remainder of the Lease Term, and no action for damages will bar a later action for damages subsequently accruing. 13.5 Landlord's Right to Cure Defaults. If Tenant fails to perform any obligation under this Lease, after the cure period, if any, Landlord will have the option to so perform after giving written notice to Tenant. All of Landlord's expenditures to correct the default must be reimbursed by Tenant on demand with interest at the Prime Rate from the date of expenditure by Landlord. Such action by Landlord will not waive any other remedies available to Landlord because of the default. 13.6 Remedies Cumulative. The remedies given to Landlord herein are not be exclusive but are cumulative with and in addition to all remedies now or hereafter allowed by law and elsewhere provided in this Lease. 13.7 Default by Landlord. If Landlord materially breaches its covenant of quiet enjoyment or any other covenant given in the Lease, Tenant may treat such breach as an Event of Default entitling Tenant to terminate the Lease by giving Landlord notice of termination. 13.8 Waiver of Breach. No waiver by a parry of any default by the other will constitute a waiver of any other breach or default by the other, whether of the same or any other covenant or condition. No waiver, benefit, privilege, or service voluntarily given or performed by a party will give the other any contractual right by custom, estoppel, or otherwise. The subsequent acceptance of State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 25 of 35 rent pursuant to this Lease will not constitute a waiver of any preceding default by Tenant other than default in the payment of the particular rental payment so accepted, regardless of Landlord's knowledge of the preceding breach at the time of accepting the rent, nor will acceptance of rent or any other payment after termination constitute a reinstatement, extension, or renewal of this Lease or revocation of any notice or other act by Landlord. ARTICLE 14 Unavoidable Delay Should the performance of any act required by the Lease to be performed by either Landlord or Tenant be prevented or delayed by reason of an Unavoidable Delay or by reason of any act or omission of the other party in violation of the terms of this Lease, the time for performance of the act will be extended for a period equivalent to the period of delay and performance of the act during the period of delay will be excused. The party affected or potentially affected must, however, use reasonable diligence to avoid any such delay and resume such performance as promptly as possible after the delay. Nothing contained in this section will excuse the prompt payment of rent by Tenant as required by this Lease or the performance of any act rendered difficult or impossible solely because of the financial condition of the party required to perform the act. ARTICLE 15 Alternative Dispute Resolution Procedures Landlord and Tenant agree that when disputes under this Lease arise, the parties must first attempt to resolve such disputes through negotiations between the authorized representatives of Tenant and Landlord before resorting to litigation. ARTICLE 16 Hazardous Materials 16.1 Use of Hazardous Materials. Tenant will be responsible for any and all Hazardous Materials and for anv other material that Tenant brings onto the Premises the use, generation, manufacture, storage or disposal of which may violate Oregon Department of Environmental Quality (DEQ) or federal Environmental Protection Agency (EPA) standards or create a safety or environmental hazard or result in a DEQ or EPA violation. Tenant must use the Premises in compliance with any and all laws regulating the use, generation, manufacture, storage and disposal of Hazardous Materials. Tenant must not cause or permit the use, generation, manufacture, storage or disposal on, under or about the Premises, or the transportation to or from the Premises, of any Hazardous Materials in violation of any law or regulation relating to such Hazardous Material. Notwithstanding anything to the contrary in this Article 16 or elsewhere in this Lease, Tenant will have no responsibility or liability whatsoever with respect to any Hazardous Material present on the Premises prior to the Commencement Date or brought onto the Premises by any Person other than Tenant following the expiration or early termination of this Lease. State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 26 of 35 16.2 Tenant's Indemnity Obligations. 16.2.1 In addition to any other obligation to indemnify stated elsewhere in this Lease, Tenant must indemnify, defend and hold Landlord and Landlord's fee interest under this Lease free and harmless from and against any and all liability, damage, loss, costs, and expense that may be incurred by Landlord by reason of, resulting from, in connection with, or arising in any manner whatsoever out of: a) a breach of the obligations of Section 16.1; or b) the use, generation, manuifactiuro Story^e cr disnosal of Hazardous Materials on, under, or about the Premises after the Commencement Date or during any previous lease of the Premises by Tenant; or c) surface migration of Hazardous Materials onto the Premises caused by or arising in connection with activities conducted on or associated with the Premises during the Term. 16.2.2 Tenant's indemnity obligations under this Section 16.2 include, but are not limited to: (i) all liabilities, losses, claims, demands, penalties, fines, settlements, damages, response, remediation, closure or inspection costs; (ii) any expenses (including reasonable attorney and consultant fees, investigation expenses, and laboratory and litigation costs) of whatever kind or nature that are incurred by Landlord; (iii) any personal injuries or property damages, real or personal; (iv) any violations of law, orders, regulations, requirements or demands of governmental authorities; and (v) any lawsuit brought or threatened, settlement reached, or government order arising out of or in any way related to the release of Hazardous Materials on the Premises after the Commencement Date or during any previous lease of the Premises by Tenant. PROVIDED, HOWEVER, that Tenant's indemnity obligations under this Section 16.2 will not include any liability, damage, loss, costs, and expense suffered by Landlord and resulting from: a) Hazardous Materials present in or on or under the Premises as of the Commencement Date unless caused by Tenant or its employees, agents, invitees or Subtenants or b) Hazardous Materials present in or on or under the Premises as of the Commencement Date that migrate, percolate, flow, diffuse, or in any way move within, from or off the Premises after the Commencement Date, unless caused by Tenant, its employees, agents, invites or Subtenant. 16.2.3 The indemnities of Tenant provided in iiiis Seuliun wiii survive the expiration or earlier termination of this Lease and the assignment by Tenant of the leasehold estate created hereby. 16.3 Notice. Landlord agrees to give prompt written notice to Tenant with respect to any suit or claim initiated or threatened to be initiated against Landlord which Landlord has reason to believe is likely to give rise to a claim for indemnity hereunder, and Tenant must promptly proceed to provide an appropriate defense, compromise, or settlement of such suit or claim at its sole expense; provided, however, that Landlord will have the right promptly to furnish counsel at Tenant's sole expense to carry out such defense, compromise, or settlement, which expenses, as well as payments in satisfaction, settlement or compromise of such suit or claim, will be immediately due and payable to Landlord upon receipt by Tenant of an invoice therefor. State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 27 of 35 16.4 Remediation by Tenant. If Tenant, its agents, contractors, guests, invites or Subtenants cause or permit Hazardous Materials to be used, generated, manufactured, stored, disposed of or released on the Premises during the Term, any extended term, or during any prior occupancy or lease of the Premises by Tenant in violation of any Hazardous Material laws, or (subject to Section 16.5) if Hazardous Materials enter upon the Premises from or through surface migration, Tenant must promptly take all actions at its sole expense to comply with all laws and regulations governing such use, generation, manufacture, storage, disposal or release of such Hazardous Materials and/or to remediate the condition created by such Hazardous iviateriais; provided that except in an emergency Landlord's approval of such actions must first be obtained, which approval may not be unreasonably withheld. 16.5 Disclosure. Within five (5) business days after the receipt of written notice thereof, Tenant must advise Landlord and Landlord will advise Tenant, as the case may be, in writing of: a) any and all notices of enforcement or other governmental or regulatory actions pursuant to which cleanup or remediation of Hazardous Materials on the Premises will be required; and b) all written claims made by any third party against Tenant or Landlord, as the case may be, or the Premises relating to damage, contribution, cost recovery, compensation, loss or injury resulting from Hazardous Materials on the Premises. Tenant must disclose to Landlord the names of each Subtenant whose business use under its Sublease includes the storage, use, manufacture, generation, or disposal of Hazardous Materials on the Premises in amounts for which a permit is required to be obtained pursuant to applicable Hazardous Materials laws or for which reports must be filed with governmental agencies pursuant to any applicable laws. 16.6 Inspection. 16.6.1 Landlord and its agents have the right, but not the duty, at Landlord's sole cost and expense to conduct reasonable inspections of the Premises, to determine whether Tenant (or its Subtenants) are complying with this Article 16. Such inspections will be performed during business hours, upon reasonable prior notice to Tenant, and will be accomplished in a manner reasonably calculated not to disturb existing business operations of Tenant or any Subtenant. Landlord will use its best efforts to minimize interference with the business of Tenant and Subtenants being conducted on the Premises but will not be liable for any reasonable interference caused thereby. 16.6.2 If, as a result of any such inspection, Landlord determines, in its reasonable judgment, that Tenant or its Subtenants are or may be not in compliance with this Article 16, Landlord will promptly notify Tenant in writing of the event or situation which gives rise to Tenant's or a Subtenant's violation or possible violation of such Article. Unless Tenant's or a Subtenant's violation or possible violation of this Article 16 creates an emergency situation (in which event Tenant must immediately take such action as may be required by the nature of such situation to remedy the same and if Tenant fails to do so Landlord will have the right to enter upon the Premises and to take such action as Landlord deems appropriate in its reasonable judgment to remedy or correct such emergency situation), Tenant must within sixty (60) calendar days after the receipt of notice of such violation or possible violation from Landlord (provided that Tenant will, in any event proceed diligently), submit to Landlord a State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 28 of 35 written plan setting forth a general description of the action that Tenant proposes to take with respect thereto (the "Remediation Plan"). 16.6.3 The Remediation Plan will be subject to Landlord's written approval, which approval will not be unreasonably withheld or delayed. Landlord will notify Tenant in writing of its approval or disapproval of the Remediation Plan within forty-five (45) calendar days after receipt thereof by Landlord. If Landlord disapproves the Remediation Plan, Landlord's notice to Tenant of such disapproval will inc! aria a detailed explanation of the reasons therefor. Within thirty (30) calendar days after receipt of such notice of disapproval, Tenant must submit to Landlord a revised Remediation Plan that remedies the defects reasonably identified by Landlord as reasons for Landlord's disapproval of the initial Remediation Plan. If Tenant fails to submit a revised Remediation Plan to Landlord within the thirty (30) day period, such failure will, at Landlord's option and upon notice to Tenant, constitute an "Event of Default" under the Lease. 16.6.4 Once the Remediation Plan is approved in writing or deemed approved by Landlord, Tenant must promptly commence all action necessary to comply with all requirements and conditions imposed by all environmental boards or agencies having and exercising jurisdiction, and must diligently and continuously pursue such action to completion in accordance with the terms thereof; provided that Tenant may commence such actions sooner or on such other timetable if required to do so by any such board or agency. 16.6.5 If Landlord's inspections of the Premises reflect a violation or possible violation by Tenant or a Subtenant of the provisions of this Article 16 which may have caused the Premises or any part thereof to have become contaminated by Hazardous Materials, Landlord will have the right to require Tenant to initiate testing of the Premises to determine whether, or the extent to which, such violation has in fact caused the contamination of the Premises by Hazardous Materials. Tenant must immediately deliver a copy of all test results to Landlord. If such Hazardous Materials are those for which Tenant is responsible, and Landlord is not responsible, Landlord and Tenant must thereafter comply with the terms and provisions of this section with respect to formulating a Remediation Plan to remediate any such contamination. If such Hazardous Materials are those for which Landlord is responsible, Landlord will promptly remediate such Hazardous Materials. 1u.7 ' %3 _i overninc PIVVIJions ' 10 i LItV11UII111CItlA1 "afters. Notwithstanding any other provision of this Lease, this Article 16 and Section 2.4 supersede and take precedence over all other provisions of this Lease regarding environmental matters including, but not limited to, the scope of indemnification of Landlord by Tenant and the survival of the indemnification provisions contained in this Lease. Nothing in this Article 16 is intended nor will it limit Landlord's rights in the event of default, as set out in Article 13 of this Lease. State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 29 of 35 ARTICLE 17 Condemnation 17.1 Total Taking. In the event of the taking or condemnation by any competent authority for any public use or purpose of the whole of the Premises at any time during the Term the Term will end as of the date of possession by the condemner, and all rent and other payments will be apportioned as of the date of possession. Landlord and Tenant must share any award (including interest from the date of taking to the date of payment) according to their respective interests In the Premises except that the award for attorneys' fees and other costs must be shared by the parties in proportion to the attorneys' fees of both outside and inside counsel paid by each party on account of the condemnation proceedings. The values of the Landlord's and Tenant's respective interests in the Premises must be established by the same court of law or other trier of fact that establishes the amount of the condemnation award, but if there is no court of law available or willing to determine Landlord's and Tenant's respective interests, those interests must be determined by agreement of Landlord and Tenant. 17.2 Substantial Taking. As used in this Section, a Substantial Taking means a taking of materially all of the Premises where the remaining part of the Premises not so taken cannot be adequately restored, repaired or reconstructed so as to constitute a complete functional unit of property capable of any substantial income-producing function. In the event of a Substantial Taking, then the condemnation will be treated as a Total Taking under Section 17.1, and the award will be distributed in accordance with Section 17.1. 17.3 Partial Taking. In the event of a taking of less than materially all of the Premises (a "Partial Taking'): a) Abatement of Rent. The Term (except as hereinafter provided) will nevertheless continue, but Annual Rent will thereafter be reduced by the same proportion that the fair market rental value of the Property was reduced due to the Partial Taking. If the parties cannot agree upon a just proportion of Annual Rent to be abated, the amount may be determined pursuant to Article 15. There will be no abatement of Annual Rent if: i. no portion of the Property is taken in any such taking or condemnation, or ii. a portion of the Property is taken but the income-generating capacity of the Improvements is not affected. b) Award. The award from a Partial Taking will be distributed first to Tenant for the restoration and repair of the Improvements as provided in Section 17.3(b), then to Landlord in an amount equal to the fair market value of the Property taken (subject to the Lease) and any remainder to Landlord and Tenant proportionally until each has received an amount equal to its proportional interest in the Premises as provided in Section 17.1(b). c) Restoration. If the Lease is not terminated, then, as to the Premises not taken in the condemnation proceeding, Tenant must proceed diligently to make an adequate restoration, repair or reconstruction of the part of the Premises not taken. Tenant must restore, repair or reconstruct the Premises, to the extent practicable, to a functional unit of substantially the same usefulness, design, construction, quality, and to a condition having the same income-generating capability of the Premises prior to the taking. In connection with such restoration, repair, and reconstruction, Tenant must comply with the provisions of Article 11 regarding Restoration as if occurring after an event of damage or destruction. State of Oregon to Thornburgh Resort Co LLC 33991-SU Page 30 of 35 17.4 Degree of Taking. If the parties cannot agree on whether the taking is a Partial Taking or a Substantial Taking, the degree of the taking may be determined pursuant to Article 15. 17.5 Successive Takings. In the case of any additional Partial Taking or takings from time to time, the provisions of Section 17.3 will apply to each Partial Taking. 17.6 Temporary Taking. If the whole or any part of the Premises or of Tenant's interest -nVior this Lease be taken or condemned by any competent authority for its temporary use or occupancy ("Temporary Taking"), Tenant must continue to pay the full amounts of Annual Rent, and all Impositions and other sums payable by Tenant hereunder. Tenant must maintain sufficient business interruption insurance to cover Annual Rent, Impositions and other sums payable by Tenant hereunder during the period of Temporary Taking. This Lease will continue and, except only to the extent that Tenant may be prevented from so doing pursuant to the terms of the order of the condemning authority, Tenant must perform and observe all of the other terms, covenants, conditions and obligations hereof upon the part of Tenant to be performed and observed, as though the taking or condemnation had not occurred. In the event of any Temporary Taking or condemnation, Tenant will be entitled to receive the entire amount of any award made for the taking, whether paid by way of damages, or otherwise, unless the period of temporary use or occupancy extends to or beyond the expiration date of the Term or the Extended Term, if applicable, of this Lease, in which case the award will be apportioned between Landlord and the Tenant as of the date of expiration of the Term or the Extended Term, if applicable. 17.7 Insurance Trustee. To the extent Tenant is obligated to repair or restore under this Section, any portion of condemnation proceeds awarded to Tenant must be deposited with the Insurance Trustee who must act in accordance with the terms of Article 11. ARTICLE 18 Notices 18.1 Notice to be in Writing. Any notice, communication, request, reply or advice, or duplicate thereof (herein severally and collectively, for convenience called "notice") provided or permitted to be given under this Lease to any person, entity, or party, or made or accepted by either party to any other party must be in writing and must, unless otherwise in this instrument or by law expressly provided, be given or be served by: a) depositing the same in the United States mail, postage prepaid, registered or certified mail, with return receipt requested, or b) personal delivery service with charges therefor billed to shipper, or c) expedited delivery service with charges therefor billed to shipper, or d) prepaid telegram, telex or facsimile, all such notices, however given, to be addressed to the party for whom the notice is intended at the address set forth below or at such other address as any party may have designated to any other party in the manner above provided. 18.2 When Notice Deemed Received. Any notice or communication sent as herein provided will be deemed received: State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 31 of 35 a) upon receipt if sent by telegram, telex or facsimile or if personally delivered (provided that such delivery is confirmed by the receiving telex or facsimile operator, including electronic confirmation of receipt, or by the courier delivery service, as the case may be), b) three (3) business days after the date of deposit in a post office or other official depository under the care and custody of the United States Postal Service, if sent by United States mail; C) on the date of delivery by any expedifwi riolivA ~i cPr/irP or d) on the date any party declines to accept any notice given as herein provided. 18.3 Address for Notices. No person or entity who is entitled to notice or is required to be given notice hereunder may have an address, for the purposes of such notice, which is outside the continental United States; and any such person or entity must designate an agent for the purpose of receiving notices hereunder whose address is within the continental United States. Any party may change its address for the purposes of receiving notices hereunder by giving notice of such change of address to the other party in the manner required for giving notices pursuant to this Article 18. If to Tenant: Thornburgh Resort Company, LLC c/o Kameron DeLashmutt PO Box 264 Bend, OR 97701 Telephone: (541) 350-8479 Fax: (541) 548-0682 If to Landlord: Department of State Lands 20300 Empire Avenue, Suite #1 Bend OR 97701 Telephone: (514) 388-6112 Fax: (541) 388-6480 ARTICLE 19 Surrender of Premises; Holdinq Over 19.1 Good Condition. The Lease will terminate without further notice at expiration of the Term. On expiration or earlier termination of the Lease, Tenant must surrender the Premises and, subject to Article 10, the Improvements, and all facilities in any way appurtenant to the Premises (other than any Subtenant's trade fixtures or equipment which may be removed in accordance with such Subtenant's Sublease), to Landlord in good order, condition and repair, and in as safe and clean condition as practicable, reasonable wear and tear and acts of God excepted, and free and clear of all liens and encumbrances, and Hazardous Materials other than those which have been created by Landlord. Any holding-over by Tenant after expiration of the Lease will not constitute a renewal or extension or give Tenant any rights in or to the Premises except as otherwise expressly provided in the Lease. State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 32 of 35 19.2 Remaining Personal Property on the Premises. Any personal property of Tenant or any Subtenant remaining on the Premises after the termination of this Lease and the removal of Tenant and such Subtenant from the Premises, may, at the option of Landlord, be deemed to have been abandoned by Tenant or such Subtenant and may either be retained by Landlord as its property or be disposed of, without accountability, in such manner as Landlord may see fit. However, Landlord will also have the right to require Tenant or any Subtenant to remove any such YPrSonal nrppart\i at Tenant'S own cost and expense, provided that Landlord first gives Tenant written notice requesting the removal of the personal property of Tenant or such Subtenant from the Premises. 19.3 Survival. The provisions of this Article 19 will survive the expiration or any termination of this Lease. ARTICLE 20 List of Exhibits Exhibit A: Physical survey and legal description of the Premises; Exhibit B: Map Showing Location of Road; Exhibit C: Recordable Memorandum of this Lease. ARTICLE 21 Miscellaneous 21.1 Governinq Law. This Lease, and all matters relating to this Lease, is to be governed by the laws of the State of Oregon in force at the time any need for interpretation of or decision regarding this Lease arises. 21.2 Binding on Successors. This Lease will be binding on and will inure to the benefit of the parties and to the successors and permitted assigns of the parties hereto, but nothing in this section may be construed as a consent by Landlord to any disposition or transfer of the Lease or any interest herein by Tenant except as otherwise expressly provided in this Lease. 21.3 Partial Invalidity. Should any provision of this Lease be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this Lease will remain in full force and effect unimpaired by the holding. 21.4 Time of Essence. Time is expressly declared to be the essence of Tenant's performance of each and every duty and obligation under this Lease. 21.5 Recordation of Lease. The parties will record a memorandum of this Lease in the form of Exhibit B, attached hereto. 21.6 Nonmerger of Fee and Leasehold Estates. If both Landlord's and Tenant's estates in the Premises or the Improvements or both become vested in the same owner, this Lease State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 33 of 35 will nevertheless not be destroyed by application of the doctrine of merger except at the express election of the holder of both estates and the,consent of each Leasehold Mortgagee of record. 21.7 Agreement to Act Reasonably. Except where specifically provided to the contrary in this Lease, in each instance in this Lease where the approval or consent of a party is required, both Landlord and Tenant intend and agree to act reasonably. As used in the foregoing sentence, the term "reasonable" may not be interpreted as justifying arbitrary action but means an even- th ar^^r~iic b!e rey^,_,irements of federal and state i iand cd application of JUdy~ ~ci in ~ accordance L"~i law, traditional business policies and practices, industry standards and commercial usage and custom concerning major real estate transactions involving properties similar to the Premises. Except where specifically provided to the contrary, any approval or consent must not be unreasonably delayed. 21.8 Joint and Several Obligations. If Tenant consists of more than one Person, the obligation of all such Persons is joint and several. 21.9 Rules of Construction. Any table of contents attached to this Lease and the captions of the various sections of this Lease are for convenience and ease of reference only and do not define, limit, augment, or describe the scope, content or intent of the Lease or of any part or parts of the Lease. This Lease will be liberally construed to effectuate the intention of the parties with respect to the transaction described herein. In determining the meaning of, or resolving any ambiguity with respect to, any word, phrase or provision of this Lease, neither this Lease nor any uncertainty or ambiguity herein will be construed or resolved strictly against either party under any rule of construction or otherwise, it being expressly understood and agreed that the parties have participated equally or have had equal opportunity to participate in the drafting hereof. The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the masculine and neuter, and each includes corporation, partnership, or other legal entity when the context so requires. The singular number includes the plural whenever the context so requires. 21.10 Exhibits. All Exhibits to which reference is made in this Lease are incorporated in this Lease by the respective references to them, whether or not they are actually attached, provided they have been signed or initialed by the parties. References to "this Lease" includes matters incorporated by reference. 21.11 Nondiscrimination and Nonsegregation. Tenant covenants by and for itself, and for its administrators, and assigns, and all persons claiming under or through Tenant, and this Lease is made and accepted upon and subject to the condition that there must be no unlawful discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, gender, sexual preference, handicap, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the Premises herein leased or the Construction Work nor may the Tenant itself, or any person claiming under or through the Tenant, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of lessees, contractors, sublessees, or vendees in the Premises and Improvements herein leased. State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 34 of 35 21.12 Quiet Enjoyment. Landlord covenants that, upon paying the rent and all other charges herein provided for and observing and keeping all covenants and agreements in this Lease on its part to be kept, Tenant will have the right to occupy the Premises peaceably and quietly in accordance with the terms of this Lease. PROVIDED, HOWEVER, that this covenant of quiet enjoyment is expressly subject to the various encumbrances and reservations of right affecting the Premises and Tenant acknowledges and agrees that its peaceable and quiet possession of the Premises is subject to all encumbrances and reservations of right, whether of record or provided for it i tliici L°aSe' 21.13 INDEMNIFICATIONS. TENANT EXPRESSLY ACKNOWLEDGES AND AGREES TO THE TERMS OF THE INDEMNITY PROVISIONS CONTAINED IN SECTIONS 2.4, 6.7, 7.7, 9.2 AND 16.2 OF THIS LEASE. ALL OBLIGATIONS OF TENANT TO INDEMNIFY LANDLORD WILL SURVIVE TERMINATION OR EXPIRATION OF THE LEASE. 21.14 Execution in Counterparts. This Lease may be executed in two or more counterparts, each of which will be an original, but all of which will constitute one and the same instrument. For convenience of the parties the signature pages to any counterpart may be detached and reattached to a single counterpart. 21.15 Inspection. Landlord has the right personally and through Landlord's agents and employees to enter into and onto the Premises, with 24 hour prior notice, to inspect the Premises and examine the conditions thereof. 21.16 Modification. Any term or condition of this Lease may be modified upon mutual consent of both parties, but any such modification will be effective and binding only upon execution by both parties of a written amendment to the Lease. 21.17 Entire Agreement. THIS LEASE, TOGETHER WITH THE ATTACHED EXHIBITS, CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES. NO WAIVER, CONSENT, MODIFICATION OR CHANGE OF TERMS OF THIS LEASE WILL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY BOTH PARTIES. SUCH WAIVER, CONSENT, MODIFICATION OR CHANGE, IF MADE, WILL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. THERE ARE NO UNDERSTANDINGS, AGREEMENTS OR REPRESENTATIONS, ORAL OR WRITTEN NOT SPECIFIED HEREIN REGARDING THIS LEASE. TENANT, BY THE SIGNATURE BELOW OF ITS AUTHORIZED REPRESENTATIVE HEREBY ACKNOWLEDGES THAT TENANT HAS READ THIS LEASE, UNDERSTANDS IT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. THIS LEASE SUPERSEDES ALL PRIOR OR EXISTING LEASE OR RENTAL AGREEMENTS BETWEEN THE PARTIES. 21.18 Subordination and Attornment. Landlord and Tenant will respond to each other's reasonable request for subordination or attornment agreement, provided such document must clearly state that any successor in interest to Landlord or Tenant under this Lease assume and will perform all the responsibilities and obligations of Landlord or Tenant under this Lease, as the case may be. Such document may not contain any provision requesting Landlord to save, hold harmless or indemnify Tenant, a lender or any other third party. State of Oregon to Thornburgh Resort Co LLC 33991-S U Page 35 of 35 IN WITNESS WHEREOF, Landlord and Tenant have by their duly authorized representatives executed this Lease. Executed this day of 2005. L L " HIVULV" R U. State of Oregon, by and through its Department of State Lands by: lwe~ Ste en J. Purc se Assistant Director TENANT: Thornburc an Oread by: Authorized Company, LLC iability companj State of Oregon to Thornburgh Resort Co LLC 33991-SU Signature Page Peter Gutowsky From: Peter Gutowsky Sent: Thursday, July 01, 2010 3:50 PM To: 'Nunzie' Subject: Re: DR remapping public record Attachments: public _taxlots_drzoned.shx; public_taxlots_drzoned.dbf; public _taxlots_drzoned.prj; public_taxlots_drzoned.sbn; public_taxlots_drzoned.sbx; public_taxlots_drzoned.shp u u Ln Ln public_taxlots_drzo public_taxlots_drzo public_taxlots_drzo public _taxlots_drzo public_taxlots_drzo public _taxlots_drzo ned.shx (8 ned.dbf (40... ned.po (4 ned.sbn (8 ned.sbx (4 ned.shp (23... Nunzie, The GIS data you requested is attached. This data identifies 432 government--owned properties presently identified on Deschutes County's Destination Resort map. After applying the eligibility criteria below, only 7 of the 432 properties would remain eligible on the map. Pleae be aware that this is a multi-part shapefile and must be summarized pr-'-or to being analyzed. The fields that reside within the table of this shapefile used to determine the eligibilty/ineligibility of city/state/county/federal. owned taxlots to be zoned DR are: l.) FI (F1) - If yes, property is ineligible for DR zone 2.) Resource Land Within 1 Mile of a UGB (1MILEUGB)- If yes, property is ineligible for DR zone 3.) Redmond Urban Reserve (URA) - If yes, property is ineligible for DR zone 4.) Area of Critical State Concern (ACSC) - If yes, property is ineligible for DR zone 5.) Platted Subdivisions (PLATTED) - If yes, property is ineligible for DR 2.one 6.) 160 Acres or greater (160 AC) - If yes, property i.s ELIGIBLE for DR zone 7.) UGB (UGB) - If yes, property is ineliigible for DR -one meter Peter Gutowsky, AICP Principal Planner. Deschutes County Community Development Department 117 NW Lafayette Bend, OR 97701 ph# (541)385-1709 fax# (541)385-1.764 Web: www.co.deschutes.or.us/cdd -----Original Message----- From: Nunzie [rnailto:nunzie@pacif.ier.com] Sent: Wednesday, June 30, 2010 4:52 PM To: Tammy Baney; Dennis Luke; Alan Unger Cc: Peter Gutowsky; Nick Lelack Subject: DR remapping public record 1 Greetings Commissioners: For the DR remapping record: I have been told this afternoon by staff (Gutowsky) that he does not have time to produce information to substantiate his verbal testimony today on the DR remapping hearing regarding 432 parcels of public land currently mapped and 7 parcels of public land currently mapped and eligible to remain mapped. Mr. Gutowsky stated that he did not submit any written information into the record other than his verbal testimony. Mr. Gutowsky stated that he is swamped with other planning department demands: Historic Landmarks Commission, Tumalo Community Plan notifications etc and together with his not working this Friday and the public Holiday of next Monday, that I could not obtain this information prior to next week. It appears that your GIS specialist Tim Berg had done some cursory data collection for Mr. Gutowsky to identify these 432 parcels and 7 parcels. I would like a copy of the data ser that establishes these parameters in a timely way so that I can make written comment before your written deadline of 5pm Tuesday July 6, 2010. I would also like the data set of the assumptions made to gather the pertinent information. (what parameters were used etc) I would appreciate your assistance in this matter. I will gladly pick up whatever Mr. Berg provides at his CDD office or my email is always available for an electronic file. 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M M Q O M O M M M O t1] (D N m m m m O m N N N r O (O m U) m m m UJ O O M M M M N W N 0 7 V (n O O 0 U) U) U O 7 O N N U m m r m O m m (D (D v m m (n m m m V V V M V V V 7 m N O U) U] " m I r r N O V r r N LO m N (n (n V (D N N cD (D (D (D O (D U (n O O (D co (D o0 00 m (D r O O M M (O O I~ (D N n m V m r m m 00 m m (n (n (n r o O O O o o o o o o o o o o o O o O O o O O O O O O O O O O O o o O O O O o O O O O O O O O O O O O O O O O O O O O O O O O O O O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 o O 0 o 0 0 0 o O O o O O O O O O o 0 o O O o O O O o O O O O O O O O O O O O O o O C. 0 0 0 0 0 o O O o 0 0 o O o o O o 0 0 Cl 0 0 0 o O o 0 0 o O Cl O O M O C> O O O O ~ O O O O ofneo(bNm(nvCD ID ~mvro(nNVnr(nCD mooCD N(n(nvmw cO(OmLO vr ~M(nmo O M N In to CD O V O O N O m N (O m t~ M O O O (D (n N u7 U) O O M (D m O V m m M M O O V V ~ 1~ V O co N N N W c0 00 m U) In O 1~ N m m m O V V V M F~ m (n u7 M O r U) O m m co O N lD In r N N In (n U) N M m (O m O U7 O U] V I~ (D N M (D O m N (D t` N r V m O O N (D (D N CO m 0 (D M UJ M M O O M 00 N O M N (D O r r O m O N O U) N M V N V m N M O N N n r N m m m N w O (D I'- M M M N V M M a0 w (C1 I~ m V (D N N O O r r CD V O V (n U) 00 O O O N O m m m to U? r M V N CO U) N r w O V ~ 1~ a0 co n O tKl O O m r O u7 7 M m M c0 (n M m M N 0." M CL` CD C C N m Ln M A N U) O O m N M V Ln 7 In U) (D VJ N 7 UJ OJ m N m O m N 0 U) M m m m m m m O O O m m M In V U) u7 r M N M V 1~ m m m Q (D tD m I~ r M ~ W m UJ (D m O N (n O V V m m m m m m M r m m m m i~ m m V N O O m V V V N M 1~ O m m UJ ap M (O 1~ r O CD h N 0 O m m h m V 7 M (D CD r- R V N 0 7 N N N N O O O N O O m (n (n m U) O cV 20 m m (n (n (O w N M M N N N N NNN N N N N N N r r r N N N M N N (n N N <f N LO O O m m m M M O O N 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 O Cl 0 0 0 0 0 0 0 0 Cl 0 0 0 0 0 0 0 0 Cl 0 0 0 0 0 O O O C. ~D C) (D CD C, (D ID C3 C) O O 00 0o O O O O O O O 0 0 C) C> CD C) C) CD C) 0 (D (D C~ C) C, CD C~ C) (D C, CD ID 0 n O O O CO 0C) CD 0 O 00 Cl O 00 OC O O Cl o 0 0 00 O O OC 0 00 O O O o 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 # O O O O O O O O O O O O O O O O O O O O O O O O O O O O ;L o 0 0 July 1, 2010 Commissioner Tammy Baney Subject: Destination Resorts Dear Commissioner Baney: As discussed in a recent article in "Oregon Business", destination resorts are not only losers for fish and wildlife, but also for the potential investors looking for gold pots at the ends of rainbows. Proposals for additional ones will be challenged at length and citizen groups, Deschutes County government and numerous public agencies in the County and State will incur high costs. It's way past time to stop these foolish and futile wastes of public money and public resources. Deschutes County has been the epicenter of speculator interest in destination resort development. Such developments present serious threats from nitrates and other contaminants in wastewater, streamflow depletion, erosion and sedimentation of spawning-rearing habitat, and stormwater runoff. The issues include economic engines and supply/demand; the legal standing for saying "no more"; a recent LUBA decision regarding streamflow reduction and stream temperature increases related to groundwater use; and nonpoint sources of water pollution. Measure 49 allows regulations 'restricting or prohibiting activities for the protection of public health and safety.' The Oregon Legislature provided examples that would qualify. "A law, rule, ordinance, order, policy, permit or other governmental authorization that restricts a use of property in order to reduce the risk or consequence of fire, earthquake, lands/ide, flood, storm, pollution, disease, crime or other natural or human disaster or threat to persons or property including, but not limited to, building and fire codes, health and sanitation regulations, solid or hazardous waste regulations and pollution control regulations. " Pollution preventions such as water and air quality protections, erosion and sediment controls, floodplain and ridgeline protections, stormwater and wastewater regulations and steep slope regulations are legal. It is essential and legal to not provide for or approve the threats posed to public property and public resources by pollution from additional destination resorts outside cities or Urban Growth Areas (UGAs). There is an adequate supply of guest rooms in Deschutes County. The drivers of our economy are the destinations, which destination resorts outside cities or UGAs unavoidably threaten. The same real estate sales and homebuilder jobs will exist inside cities and UGAs, and mitigating the adverse effects will be the responsibility of public facility providers that are legally accountable for their facilities. If our economic engines need a restart we should protect and restore the reasons Deschutes County is a destination. Sincerely yours, Tom Davis, PE NFS River Steward 69217 Tapidero, Sisters, OR 97759 R1lis j~Kti c cSh t oct,e S~~zLZS; D~ >:ru~rtrc Page 1 of 1 Peter Gutowsky From: Laurie Craghead Sent: Thursday, July 01, 2010 6:50 PM To: Peter Gutowsky; Alan Unger Cc: Dave Kanner; Tom Anderson; Nick Lelack Subject: RE: Re: Destination Resort Remapping / Modified Criterion In reviewing this further, it seems to me that, because and we all know that the Cyruses really want all of the property in Aspen Lakes already designated as destination resort to remain on the map and, if the Board wants Aspen Lakes to be eligible to remain on the map, then, there is no reason to make the developer apply to remain on the map and the ordinance should just say something like: "All property within a subdivision for which cluster development approval was obtained prior to 1990, for which the original cluster development approval designated at least 50 percent of the development as open space and which was within the destination resort zone prior to the effective date of Ordinance 2010-001 shall remain on the eligibility map." This may be entered into the record so that others may respond during the open written record period. Laurie Craghead Assistant Legal Counsel Deschutes County .1 388-6623 THIS ELECTRONIC TRANSMISSION IS CONFIDENTIAL. IN PARTICULAR, IT MAY BE PROTECTED BY THE ATTORNEY-CLIENT PRIVILEGE, THE WORK PRODUCT PRIVILEGE, AND OTHER PRIVILEGES AND CONFIDENTIALITY PROVISIONS PROVIDED BY LAW. THE INFORMATION IS INTENDED ONLY FOR USE OF THE INDIVIDUAL OR ENTITY NAMED. IF YOU ARE NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT THE SENDER HAS NOT WAIVED ANY PRIVILEGE AND THAT YOU MAY NOT READ, DISCLOSE, COPY, DISTRIBUTE, USE OR TAKE ACTION BASED UPON THIS TRANSMISSION OR ANY ACCOMPANYING DOCUMENTS. IF YOU HAVE RECEIVED THIS TRANSMISSION IN ERROR, PLEASE IMMEDIATELY NOTIFY THIS OFFICE AND DELETE THE E- MAIL. 7/6/2010 Page I of 2 Peter Gutowsky From: Tammy Baney Sent: Tuesday, July 06, 2010 10:26 AM To: 'Frank Baldwin' Cc: Peter Gutowsky Subject: RE: Aspen Lakes Destination Resort Proposal Hi Frank- Please know that I have read your comments and appreciate you weighing in on this important decision. Your email has been forwarded for inclusion in the public record. In service to our community- 7-amm'y Tammy Baney Deschutes County Board of Commissioners O 541 388-6567 1 F 541 385-3202 1 1300 NW Wall Street, Suite 200 Bend, OR 97701 From: Frank Baldwin [mailto:skibum@bendcable.com] Sent: Saturday, July 03, 2010 5:15 PM To: Tammy Baney; Dennis Luke; Alan Unger Subject: Re: Aspen Lakes Destination Resort Proposal Dear County Commissioners, I write to you as a very concerned neighboring landowner to the proposed Aspen Lakes Destination Resort. I have owned my property, purchased from the Cyrus family, since early 1990. I have previously testified before you; please refer to the Frank Baldwin Statement at the September 2008 DR hearing which I will briefly summarize here: Along with Keith and Matt Cyrus, I was an original board member of the Rim at Aspen Lakes Association (from July 1990 until November 1992). In that 28-month period there were 28 meetings in which Matt and Keith Cyrus participated. At no time during that period was there ever any reference, hint or suggestion that a possible destination resort would someday border us. We knew of their plans for the future 27-hole golf course, and that was fine, but never a hint or suggestion of a future destination resort. Even when specifically asked by the board in our recorded January 1991 minutes about any future development plans to the east of our properties, we were told there were none. I must conclude that they spoke honestly to it, then and that there was no such idea nor plan at that time. Beyond that, in recent times you now have heard testimony on these specific points: o Aspen Lakes had originally agreed with the county to preserve larger tracts of its open space, but now wants to renege on that commitment and take back a large area of open space and put hundreds of houses on it. This is contrary to owners of the neighboring properties belief that the county would oversee preservation of the open space in perpetuity, a position echoed by realtors and others as well. Aspen Lakes was due to be removed from the map for legitimate reasons. o The fairness issue: there is no reason why an exception for one developer should be made to the exclusion of all others. o Allowing a subdivision to become a destination resort is in violation of state and county statutes. o In 2009 the county told the Sisters Planning Commission that ineligible land would be removed from the resort map. o An Aspen Lakes DR would have considerable adverse impacts to the Wychus Creek watershed area, where the first steelhead in 60 years have just recently emerged. o There are very serious questions about the true impact of DR's in the county, on infrastructure, costs, etc, and very few factual answers on which to base reasoned decisions. o Many have testified before you that this county has enough destination resorts already, and as pointed out in the July 2010 Oregon Business article ("Once-golden destination resorts face uncertain future") there are severe problems with a number of them, especially here in Central Oregon. 7/6/2010 Page 2 of 2 o Many have also testified that the public's views are not being represented by county decisions with respect to DR's: i.e. no more DR expansion! In my opinion Aspen Lakes is a no brainer; our quality of life here is of paramount importance: please enforce existing laws and NO exceptions for a single developer. Please strip the grandfather provision and the Cyrus amendment. And please allow only lands that legally meet both state and county criteria for resorts to be included. Finally, please respect the wishes of thousands of your constituents, as your decisions will have enormous impacts on this county's future development.. Thank you for your consideration Sincerely, Frank Baldwin Sisters 7/6/2010 Page 1 of I Peter Gutowsky From: Genessa Goodman-Campbell [gena@onda.org] Sent: Tuesday, July 06, 2010 2:57 PM To: Peter Gutowsky Subject: ONDA comments RE: PA-09-3 and TA-09-6: Destination Resorts Deschutes County Commissioners c/o Peter Gutowsky Deschutes County Planning Dept. 117 NW Lafayette Ave. Bend, OR 97701 Re: PA-09-3 and TA-09-6: Destination Resorts Dear Commissioners: I am writing on behalf of the Oregon Natural Desert Association ("ONDA") to express our opposition to any proposal that would allow mapping of federal lands for destination resort development. As an organization that advocates for protection of public values on federal lands, we are concerned about the creation of a process by which federal lands may essentially be "upzoned" with a destination resort overlay zone that could create an inappropriate incentive for disposal of federal lands. Thank you for your consideration. Very truly yours, Gena Goodman-Campbell Central Oregon Wilderness Coordinator Oregon Natural Desert Association 33 NW Irving Bend, OR 97701 (541)330-2638 www.onda.org 7/6/2010 July 6, 2010 Deschutes County Commissioners c/o Peter Gutowsky Principal Planner, CDD 117 NW Lafayette Avenue, Bend, OR 97701-1925 Re: Comments following hearing of June 30 on PA-09-3/TA-09-6 Dear Commissioners: I am writing on behalf of Central Oregon LandWatch to again express our concern over the lack of information used as a basis for these amendments. We earlier asked in a letter of March 1, 2010 for identification of lands and potential resort development under the County "multiple ownership" scenario. More recently, as reflected in the attached email correspondence between Nunzie Gould and Peter Gutowsky, the public has also asked for information to identify the alleged 432 government-owned parcels currently in the map, along with the 7 that would remain eligible on the map. Such identification is important for the public to understand what is actually being proposed and where. It is also necessary in order to be able to assess transportation impacts associated with this plan and text amendment where the provision for multiple ownerships allows for new development not contemplated by the original mapping and its criteria. Thank you for your consideration. Very truly yours, Paul Dewey cc: Board From: Nunzie [nunzie@pacifier.com] Sent: Tuesday, July 06, 2010 9:06 AM To: Erik Kancler; Paul Dewey; Craig & Marilyn Miller Subject: Ord 2010-024 DR remapping public record Page 1 of 2* Attachments: public_taxlots_drzoned.sllx; pub] ic_taxlots_drzoned.dbf, public_taxlots_drzoned.prJ; public_taxlots_drzoned.sbn; pubhc_taxlots_drzoned.sbx; public_taxlots_drzoned.shp; ATT00315.htm I can't open the attachments. With the new DR min acreage changing from 160 acres to a compilation of adjacent parcels totaling 160 acres, I 'm not sure that simply using the 160 acre minimum (6 below), or platted subdivision (5 below) is a true reflection of this new language of the ordinance. vv iu C-vL Vv be uiaiaub Cvi7lllleilt: the link for the ordinance with strike throughs is on pages 4-8 of the link here: http://www.deschutes.org/boardCalendar/does/3159/Hearing_-_Ordinance-025=-_Resort_Mappingpddf Nunzie 541-420-3325 cell Begin forwarded message: From: "Peter Gutowsky" <Peter_GutowskxCa)co.deschutes.or.us> Date: July 1, 2010 3:49:39 PM PDT To: "Nunzie" <nunzie pacifier.com> Subject: Re: DR remapping public record Nunzie, The GIS data you requested is attached. ❑ This data identifies 432 government-owned properties presently identified on Deschutes County's Destination Resort map. ❑ After applying the eligibility criteria below, only 7 of the 432 properties would remain eligible on the map. ❑ Pleae be aware that this is a multi-part shapefile and must be summarized prior to being analyzed. ❑ The fields that reside within the table of this shapefile used to detennine the eligibilty/ineligibility of city/state/county/federal owned taxlots to be zoned DR are: L)CI FI (F1) - If yes, property is ineligible for DR zone 2.)C] Resource Land Within I Mile of a UGB (IMILEUGB)- If yes, property is ineligible for DR zone 3.)❑ Redmond Urban Reserve (URA) - If yes, property is ineligible for DR zone 4.)f ; Area of Critical State Concern (ACSC) - If yes, property is ineligible for DR zone 5.)n Platted Subdivisions (PLATTED) - If yes, property is ineligible for DR zone 6.)❑ 160 Acres or greater (160 AC) - If yes, property is ELIGIBLE for DR zone 7.)❑ UGB (UGB) - If yes, property is ineligible for DR zone t Peter Peter Gutowsky, AICP Principal Planner Deschutes County Community Development Department 117 NW Lafayette Bend, OR 97701 ph#❑ (541)385-1709 fax# (541)385-1764 Web: www.co.deschutes.or.us/cdd -----Original Message----- From: Nunzie [mailto:nunzie a pacifier corn] Sent: Wednesday, June 30, 2010 4:52 PM To: Tammy Baney; Dennis Luke; Alan Unger Cc: Peter Gutowsky; Nick Lelack Subject: DR remapping public record Greetings Commissioners: For the DR remapping record: I have been told this afternoon by staff (Gutowsky) that he does not have time to produce information to substantiate his verbal testimony today on the DR remapping hearing regarding 432 parcels of public land currently mapped and 7 parcels of public land currently mapped and eligible to remain mapped. ❑ Mr. Gutowsky stated that lie did not submit any written information into the record other than his verbal testimony. Mr. Gutowsky stated that he is swamped with other planning department demands: Historic Landmarks Commission, Tumalo Community Plan notifications etc and together with his not working this Friday and the public Holiday of next Monday, that I could not obtain this information prior to next week. It appears that your GIS specialist 'him Berg had done some cursory data collection for Mr. Gutowsky to identify these 432 parcels and 7 parcels. I would like a copy of the data set that establishes these parameters in a timely way so that I can make written comment before your written deadline of 5pm Tuesday July 6, 2010. I would also like the data set of the assumptions made to gather the pertinent information. (what parameters were used etc) I would appreciate your assistance in this matter.I I I will gladly pick up whatever Mr. Berg provides at his CDD office or my email is always available for an electronic file. Sincerely, Nunzie Gould 541-420-3325 Page 2 of 2 file://C:ADocuments and Settings\peterg\Local Settings\Temporary Internet F1les\OLK2\LandWatch DR N... 7/6/2010